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[ { "docid": "22071809", "title": "", "text": "that the rule set out in Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980) forecloses our review of unobjected to issues. The appellant in reply argues that any objection to the magistrate's report preserves all claims on appeal. We agree that only those issues fairly raised by the objections to the magistrate's report are subject to review in the district court and those not preserved by such objection are precluded on appeal. See Thomas v. Am, 474 U.S. 140, 147-48, 106 S.Ct. 466, 471-72, 88 L.Ed.2d 435 (1985). The Federal Magistrate's Act provides that \"a judge of the (district) court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.\" 28 U.s.c. § 636(b)(1)(C); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983). Here, the notice by the magistrate adequately informed the claimant that failure to make all his specific objections would result in a waiver of further appellate review. Objecting to certain portions of a magistrate's report does not preserve all the objections one may have. Wilson v. McMacken, 786 F.2d 216, 220 (6th Cir.1986); see also Fed.R.Civ.P. 72(b). The district court could assume, absent objection, that the claimant acquiesed to the remaining portions of magistrate's recommendations. Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir.), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 556 (1985); Smith v. Detroit, 829 F.2d 1370, 1374 (6th Cir.1987). The claimant's objections to the magistrate's disposition of two specific issues cannot, as he suggests, be fairly construed to include objections to the other two issues the magistrate had before him. Cheshier v. Bowen, 831 F.2d 687, 689 (7th Cir.1987). Nor have we been presented with any compelling reason to relax our rule in this case. Consequently, the appellant has waived our review of the ALT's treatment of the testimony of medical advisor Barrett and the answers to interrogatories filed by another medical advisor, Dr. Kunkle. III. On the issue that treating physician evidence was ignored, the appellant contends that the" } ]

[ { "docid": "5494261", "title": "", "text": "matter jurisdiction of the claim because that claim was one which is within the exclusive jurisdiction of the federal courts—e.g., federal antitrust claims, etc. The legislative history—and the limited scope of that amendment—is discussed in full detail by Professor Moore. 1A Moore's Federal Practice ¶ 0.153[3.—3], pp. 61-62. . The parties are hereby advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any par ty who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this rule shall preclude further appellate review. See Keating v. Secretary of Health and Human Services, 848 F.2d 271 (1st Cir.1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); see also, Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)." }, { "docid": "16746162", "title": "", "text": "continued viability of the loan program. See generally Braman v. United Student Aid Funds, Inc., 94 F.3d 1260, 1264-66 (9th Cir.1996) (a major purpose of the HEA is to stabilize student loan program and cut government losses due to default), cert. denied, 521 U.S. 1106, 117 S.Ct. 2484, 138 L.Ed.2d 992 (1997). . The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec’y of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); see also Thomas v. Am, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Went-worth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.1998)." }, { "docid": "3315744", "title": "", "text": "pay and other “equitable” remedies); DeNovellis, 124 F.3d 298, 308-309 (holding no remedy available under amended provisions of Title VII for violations occurring prior to date of amendment (November 21, 1991), where discriminatory acts did not continue into the post-amendment period). IV. SUMMARY AND RECOMMENDATION For all the foregoing reasons, I recommend that Defendant’s Motion for Summary Judgment (Docket No. 27) be ALLOWED. V. IMPORTANT NOTICE OF RIGHT TO OBJECT AND WAIVER OF RIGHT TO APPEAL FOR FAILURE TO DO SO WITHIN TEN DAYS The parties are hereby advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court WITHIN 10 DAYS of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has indicated that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court’s order entered pursuant to this Report and Recommendation. See United States v. Valencia-Copete, 792 F.2d 4, 5-6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980); see also Thomas v. Arn, 474 U.S. 140, 148-149, 106 S.Ct. 466, 471-472, 88 L.Ed.2d 435 (1985), reh’g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986). . Unless otherwise noted, facts stated below are either undisputed or stated in the light most favorable to Costello, the party opposing the motion for summary judgment. . Although Costello claims that, under the settlement agreement, she \"was promoted retroactively with back pay,\" I see nothing in the settlement agreement to support Costello's assertion that she was" }, { "docid": "18238261", "title": "", "text": "proceedings conducted pursuant to the statutory power of sale. . The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir. 1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Scott v. Sckweiker, 702 F.2d 13, 14 (1st Cir.1983); see also Thomas v. Am, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir. 1998)." }, { "docid": "18120905", "title": "", "text": "of it either would have no efficacy in resolving the underlying dispute or would require such intrusion into the declaratory judgment defendants’ rights to choose their forum and into the jurisdiction of the state court, on such tenuous grounds, that the discretionary authority of this Court to deny jurisdiction under the Declaratory Judgment Act demands invocation. Accordingly, based on the aforementioned, this Court hereby allows the motions to dismiss. The parties are hereby advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has indicated that failure to comply with this rule shall preclude further appellate review. See United States v. Valencia-Copete, 792 F.2d 4 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh’g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986). . 18 U.S.C. § 1961. . The first motion to dismiss was filed by defendants Metro Associates, Inc., Metro News, Inc., Metro Leasing, Inc., Lewis A. Black, and Sara Black. (Docket #11). The second motion to dismiss was filed by the remaining defendants Achille A. Apicella and Einbinder, Young & Apicella, P.C. (Docket # 18). . The federal question statute provides that \"[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. . The Constitution limits federal" }, { "docid": "113033", "title": "", "text": "to proceed on an individual basis. . The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec'y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); see also Thomas v. Arn, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.1998). . There is no support for the plaintiffs’ argument that federal law, rather than state law, controls in this instance. The case law is clear that credit transactions within Massachusetts that are subject to the CCCDA are exempted from various provisions of TILA, including § 1635 regarding the right to rescind. See Fidler v. Central Coop. Bank, 226 B.R. 734, 736 (Bankr.D.Mass.1998). Accordingly, where, as here, the subject loans were secured by the borrowers' Massachusetts residences, the CCCDA, and not TILA, governs the proposed class members' rescission claims. Id.; see also Belini v. Washington Mutual Bank, 412 F.3d 17, 26-27 (1st Cir.2005) (because of the Massachusetts exemption, disclosure requirements and mechanics of rescission are governed by state law, not TILA); Desrosiers v. Transanierica Fin. Corp., 212 B.R. 716, 722 n. 6 (Bankr.D.Mass.1997)" }, { "docid": "20780481", "title": "", "text": "pleading requirements of Local Rule 56.1, or defendants' request for additional discoveiy under Fed.R.Civ.P. 56(f). This court does, however, acknowledge the merits of the defendants’ position. . Due to these disputed facts, this court has denied plaintiff's \"Motion to Deem Facts Established et al” (Docket # 44) by which plaintiff is seeking to have this court rule that her ownership of the notes has been established. In the same motion, the plaintiff is seeking to have this court enter an order warning the defendants that they will be sanctioned if they fail to prove any claim and any and all defenses they have raised. Such a warning is not warranted and will not be issued. .The parties are hereby advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachu setts, any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this rule shall preclude further appellate review. See Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); see also Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4-5 (1st Cir.1998)." }, { "docid": "2777191", "title": "", "text": "(Docket No. 85). . The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); see also Thomas v. Arn, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir. 1998)." }, { "docid": "16232181", "title": "", "text": "the alleged breach occurred in Massachusetts and that a transfer is not appropriate. If the District Judge to whom this case is assigned disagrees with the conclusion that the alleged breach occurred in Massachusetts, I RECOMMEND that the plaintiff be permitted to do some discovery on the underlying facts upon which a decision can be made as to whether the Plan is “found” in Massachusetts. VI. Review by the District Judge The parties are hereby advised that pursuant to Rule 72, Fed.R.Civ.P., any party who objects to these proposed findings and recommendations must file a specific written objection thereto with the Clerk of this Court within 10 days of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b), Fed.R.Civ.P., shall preclude further appellate review. See Keating v. Secretary of Health and Human Services, 848 F.2d 271 (1st Cir.1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). . In the latter part of April, 2001, this case was referred to the undersigned for the conduct of Rule 16(b) and/or pretrial proceedings. The motion to dismiss now under consideration shall be determined on a report and recommendation basis in accordance with 28 U.S.C. § 636(b). . Central States has admitted these identifying facts in its answer. (Answer ¶ 3 § 2) . According to Exhibit C to the Affidavit of Michael Neuman (¶ 6), Ms. McClellan was covered under the health insurance of her husband, James McClellan. James B. McClellan was the \"participant” in the Plan; Ms. McClellan was the \"beneficiary” as those" }, { "docid": "18918582", "title": "", "text": "Crotched Mountain Rehabilitation Center, Inc., 31 F.3d 9, 14 (1st Cir.1994) (quoting Lipsett v. University of Puerto Rico, 864 F.2d 881, 895 (1st Cir.1988). See also Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (Plaintiff \"may not rest upon mere allegations; [he] must set forth specific facts demonstrating that there is no genuine issue for trial.”) . A continuing violation may also be shown if there is a systemic policy of discrimination. Jensen, 912 F.2d at 523. No systemic policy, however, has been claimed in this case. . The parties are advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party’s receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); and Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983). See also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985), reh’g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986). A party may respond to another party's objections within ten (10) days after being served with a copy thereof." }, { "docid": "6669743", "title": "", "text": "the position formerly taken by him.”) (internal citation omitted). However, the parties have not addressed the issue of judicial estop-pel, and Mr. Herrmann's relationship with Schmid would need to be such that he was bound by representations to the court made on behalf of Schmid rather than on behalf of Mr. Herrmann personally. Consequently, this issue will not be addressed further herein. . The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72, any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec'y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.l983); see also Thomas v. Arn, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.l999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.1998)." }, { "docid": "21149525", "title": "", "text": "reason for the leave becomes known. Upon receipt of the requisite information from the employee or the medical certification which confirms the leave is for an FMLA reason, the preliminary designation becomes final.” 29 C.F.R. § 825.208(e)(2). . The parties are advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party’s receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980). See also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). A party may respond to another party's objections within ten (10) days after being served with a copy thereof." }, { "docid": "7665119", "title": "", "text": "correct. Q. And you testified that these amendments are sent along with her statement; is that right? A. Yes. (Id. at 14.) . Plaintiff makes no argument that the \"opt out” notification procedure MBNA followed did not comply with federal or Delaware law. . This allegation has not been changed in Plaintiffs second amended complaint. (See Second Amended Complaint ¶ 18.) . The parties are advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these findings and recommendations must file a written objection with the Clerk of this Court within ten (10) days of the party's receipt of this Report and Recommendation. The written objection must specifically identify the portion of the proposed findings or recommendations to which objection is made and the basis for such objection. The parties are further advised that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court order entered pursuant to this Report and Recommendation. See Keating v. Secretary of Health & Human Services, 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604 (1st Cir.1980). See also Thomas v. Arn, 474 U.S. 140, 154-55, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). A party may respond to another party’s objections within ten (10) days after being served with a copy thereof." }, { "docid": "113038", "title": "", "text": "the plaintiffs had not been fully reimbursed for prepayment penalties and interest charges that they had incurred. See id. The McIntosh court concluded that a claim for rescission remained a permissible means of attempting to recover these costs even though the plaintiffs had paid off their loan. Id. Thus, the plaintiffs' right to rescind following payoff of the loan was in no way dependent upon a claim for damages pursuant to 15 U.S.C. § 1640. Here, the plaintiffs are seeking reimbursement of interest and finance charges through rescission. See Pl.’s Mem. at 5; Def.'s Mem. at 6. Under McIntosh, this is permissible whether or not the subject loans have been paid off. . Nothing herein or in the original R & R addresses the merits of the plaintiffs’ claims. . The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); see also Thomas v. Arn, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.1998)." }, { "docid": "6671894", "title": "", "text": "extent Bio-Chem’s counterclaim seeks recovery of the balance outstanding under the 1991 Warranty Settlement, and ALLOWED, to the extent BioChem’s counterclaim seeks recovery for ITL’s misappropriation of trade secrets and failure to purchase obsolete parts; 4. BioChem’s Motion for Partial Summary Judgment (Docket No. 48) be ALLOWED; and 5. BioChem’s Cross-Motion for Partial Summary Judgment as to Counterclaim I (Docket No. 55) be ALLOWED, but only to the extent that it shall be deemed established for the purpose of further proceedings in this case that BioChem may include the balance of the warranty credit under the 1991 Warranty Settlement, in such amount as is determined by the jury to be outstanding, as an item to be set-off pursuant to Paragraph 3.6 of the Settlement Agreement. VI. IMPORTANT NOTICE OF RIGHT TO OBJECT AND WAIVER OF RIGHT TO APPEAL FOR FAILURE TO DO SO WITHIN TEN DAYS The parties are hereby advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court WITHIN 10 DAYS of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has indicated that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court’s order entered pursuant to this Report and Recommendation. See United States v. Valencia-Copete, 792 F.2d 4, 5-6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980); see also Thomas v. Arn, 474 U.S. 140, 148-149, 106 S.Ct. 466, 471-472, 88 L.Ed.2d 435 (1985), reh’g denied, 474 U.S. 1111, 106 S.Ct." }, { "docid": "13808439", "title": "", "text": "suppression (i.e., the suppressed evidence was material to guilt or punishment).” Conley v. United States, 415 F.3d 183, 187 (1st Cir.2005) (citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). There is nothing in the petitioner’s bald assertions to support a claim for prosecutorial misconduct. Owens, 483 F.3d at 57 (movant’s allegations need not be accepted when they are inherently incredible). For the foregoing reasons the petitioner’s claim for prosecutorial misconduct is lacking in merit. V. Conclusion For all the above reasons, I RECOMMEND that (1) the petitioner’s motions under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (##259, 311) be DENIED, (2) the Court find as moot the Government’s motions for summary dismissal (##291, 312) and (3) Final Judgment enter accordingly. VI. Review by the District Judge The parties are hereby advised that any party who objects to this recommendations must file a specific written objection thereto with the Clerk of this Court within 14 days of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b), Fed.R.Civ.P., shall preclude further appellate review. See Keating v. Secretary of Health and Human Services, 848 F.2d 271 (1st Cir.1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Filed Feb. 12, 2014. . Also indicted on that day were three other co-defendants: Jean Janvier, Gerald Scott, and Fernando Phillips. These co-defendants were also charged with selling crack cocaine in the same area as Smoak. See PSR ¶¶ 11-12. . Although Smoak" }, { "docid": "16825902", "title": "", "text": "proper defendants and this is not the proper forum for such a claim. Plaintiff could and should have raised it as a defense to the renewal of the restraining order at the further hearing held in Fram-ingham District Court on March 8, 1994— a hearing of which Plaintiff did have notice. V. Conclusion For all of the reasons set forth above, I recommend that Defendants’ motion for summary judgment be GRANTED as to all of Plaintiffs claims. All counts being dismissed, judgment should enter for Defendants. VI. IMPORTANT NOTICE OF RIGHT TO OBJECT AND WAIVER OF RIGHT TO APPEAL FOR FAILURE TO DO SO WITHIN TEN DAYS The parties are hereby advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court WITHIN 10 DAYS of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has indicated that failure to comply with this rule shall preclude further appellate review by the Court of Appeals of the District Court’s order entered pursuant to this Report and Recommendation. See United States v. Valencia-Copete, 792 F.2d 4, 5-6 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 379 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir.1980); see also Thomas v. Arn, 474 U.S. 140, 148-149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), reh’g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986). . Unless otherwise indicated, the facts presented below are undisputed. . Plaintiff does not recall Gatchell responding to his wife's statement. PLDep. at 70. . Presumably, the factfinder acquitted Plaintiff because it was undisputed that" }, { "docid": "20566242", "title": "", "text": "the end-user consumer claims. As detailed above, however, plaintiffs have failed to establish that they are entitled to subrogation. . The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings and recommendations must file a written objec tion thereto with the Clerk of this Court within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); see also Thomas v. Am, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.1998)." }, { "docid": "6141811", "title": "", "text": "security claim). Similar to the Lopez court, this court does not hold that there is an absolute right to tolling in all cases of incapacity. Rather, this Court maintains that, in order to have a constitutionally adequate procedure, when a claimant presents probative medical evidence (such as Dr. Amsterdam's report) showing that the claimant is unable to communicate in either verbal or written form, and the claimant's written or verbal testimony is necessary in order for the claimant to meet his or her burden of proof either for the benefits themselves or for an appeal, the OWCP limitations period must be tolled until such time as the claimant is able to communicate. Similar to the case sub judice, the Nunnally and Torres courts remanded to determine the extent of the impairment and the effect that impairment had on plaintiff's ability to make a proper and timely filing. The parties are hereby advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has indicated that failure to comply with this rule shall preclude further appellate review. See United States v. Valencia-Copete, 792 F.2d 4 (1st Cir.1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.1980); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)." }, { "docid": "20633149", "title": "", "text": "motion. . This case does not involve a situation where ADP is being challenged for failing to make a disclosure which was necessary to prevent a partial disclosure from being misleading. See Nota, 45 Mass.App.Ct. at 19, 694 N.E.2d at 404. While under such circumstances a distinct relationship of trust or confidence may not be necessary, that is not the situation here. . The unpublished decision of Infra-Metals Co. v. Topper & Griggs Group, Inc., No. Civ. A. 3:05-CV559, 2005 WL 3211385, at *1 (D.Conn. Nov.30, 2005), relied on by JSB not only relies on the same standard as the above-cited cases, but also notes that to the extent that successor liability is based on a fraud theory, it must be pleaded with the specificity required by Fed.R.Civ.P. 9(b). Id. at n. 4. . The parties are hereby advised that under the provisions of Fed.R.Civ.P. 72 any party who objects to these proposed findings and recommendations must file a written objection thereto with the Clerk of this Court within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with this Rule shall preclude further appellate review. See Keating v. Sec’y of Health & Human Servs., 848 F.2d 271, 275 (1st Cir.1988); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 604-605 (1st Cir.1980); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir.1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir.1983); see also Thomas v. Arn, 474 U.S. 140, 153-54, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985). Accord Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 3-4 (1st Cir.1999); Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir.1994); Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir. 1998)." } ]

[ { "docid": "22585155", "title": "", "text": "fiduciary duty claim. The district court entered judgment, certifying its order as final under Fed.R.Civ.P. 54(b), see J.I. Case Credit Corp. v. First Nat. Bank, 991 F.2d 1272, 1275 (7th Cir.1993); Pedrina v. Chum, 987 F.2d 608, 610 n. 4 (9th Cir.1993), and the defendant ified a timely appeal. II. Because the Healthsource plan expressly grants the administrator discretionary authority to determine eligibility for benefits, as well as over administrative decisions such as whether to treat the record as closed, we review the administrator's decision to deny benefits using \"the highly deferential arbitrary and capricious standard of review.\" Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 380 (6th Cir.1996); see Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). This standard \"is the least demanding form of judicial review of administrative action..., When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.\" Perry v. United Food & Commercial Workers Dist. Unions 405 & 442, 64 F.3d 238, 241 (6th Cir.1995) (citations and internal quotation marks omitted). Thus, the standard requires that the decision \"be upheld if it is the result of a deliberate principled reasoning process, and if it is supported by substantial evidence.\" Baker v. United Mine Workers of America Health & Retirement Funds, 929 F.2d 1140, 1144 (6th Cir.1991). We review de novo, however, the district court's grant of summary judgment in an ERISA claim. See Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 986 (6th Cir.1991). In other words, our task is to \"determine if there is any genuine issue of material fact whether the insurance company's decision to deny benefits was arbitrary or capricious.\" Id. III. A. We consider initially whether, upon a review of the information actually considered by Healthsource in denying benefits, it can be said that the denial was arbitrary and capricious. We conclude that it cannot, and that the district court erred in concluding otherwise. Healthsource based its denial on the opinions of Drs. Cirenza and" } ]

[ { "docid": "22808845", "title": "", "text": "the terms of the plan.” Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 613 (6th Cir.1998)(citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)). When a plan administrator has discretionary authority to determine benefits, we will review a decision to deny benefits under “the highly deferential arbitrary and capricious standard of review.” Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 380 (6th Cir.1996). Sanford v. Harvard Indus., Inc., 262 F.3d 590, 595 (6th Cir.2001). “[T]he arbitrary and capricious standard is the least demanding form of judicial review of administrative action. When applying the arbitrary and capricious standard, the Court must decide whether the plan administrator’s decision was rational in light of the plan’s provisions. Stated differently, when it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.” Williams v. International Paper Co., 227 F.3d 706, 712 (6th Cir.2000)(internal citations and quotations omitted). Generally, when a plan administrator chooses to rely upon the medical opinion of one doctor over that of another in determining whether a claimant is entitled to ERISA benefits, the plan administrator’s decision cannot be said to have been arbitrary and capricious because it would be possible to offer a reasoned explanation, based upon the evidence, for the plan administrator’s decision. See Abnathya v. Hoffmann-LaRoche, Inc., 2 F.3d 40, 47 (3d Cir.1993)(holding that a plan administrator may rely upon a single medical opinion finding that an employee is not disabled); see also Donato v. Metropolitan Life Ins. Co., 19 F.3d 375, 380 (7th Cir.1994)(upholding a plan administrator’s denial of benefits where a psychiatrist found the employee to be “severely depressed,” there being insufficient evidence to “support the conclusion that [the plaintiffs] depression, regardless of treatment, would constitute a total disability” and upholding plan administrator’s denial of claim where independent medical consultant’s opinion was contrary to plaintiffs doctor’s opinion); see also Birdsell v. United Parcel Serv. of Am., 94 F.3d 1130, 1133 (8th Cir.1996)(holding that a plan administrator’s decision to deny benefits was" }, { "docid": "23136321", "title": "", "text": "Kalish’s motion. The district court’s order, which had a transcript of the oral opinion attached, was filed on June 25, 2004. This timely appeal followed. II. ANALYSIS A. Liberty’s alleged conflict of interest does not make application of the arbitrary and capricious standard of review inappropriate “[A] denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the bene fit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). “When such authority is granted, the highly deferential arbitrary and capricious standard of review is appropriate.” Borda v. Hardy, Lewis, Pollard, & Page, P.C., 138 F.3d 1062, 1066 (6th Cir.1998) (citation and quotation marks omitted). A plan administrator’s decision will not be deemed arbitrary and capricious so long as “it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome.” Davis v. Ky. Fin. Cos. Ret. Plan, 887 F.2d 689, 693 (6th Cir.1989) (noting that “[t]he arbitrary and capricious standard is the least demanding form of judicial review”) (quotation marks omitted). We “review a district court’s determination regarding the proper standard to apply in its review of a plan administrator’s decision de novo.\" Hoover v. Provident Life & Accident Ins. Co., 290 F.3d 801, 807 (6th Cir.2002). The district court in the present case applied the arbitrary and capricious standard of review. Kalish concedes that application of the de novo standard would be improper, but argues that “Liberty’s denial of benefits should be evaluated under a less deferential, modified-arbitrary-and-capricious standard because Liberty was operating under a conflict of interest, as it was both the insurer and an administrator of the Plan.” We agree that Liberty’s operation of the Plan as both the insurer and the administrator creates a conflict of interest. See Killian v. Healthsource Provident Adm'rs, Inc., 152 F.3d 514, 521 (6th Cir.1998) (concluding that “there is an actual, readily apparent conflict” where “as administrator, it interprets the" }, { "docid": "16577976", "title": "", "text": "policy. Rather, ERISA’s expansive preemptive provisions are implicated. See Tassinare v. American Nat. Ins. Co., 32 F.3d 220, 224 (6th Cir.1994) (recognizing “virtually all state law claims relating to an employee benefit plan are preempted by ERISA”); In re General Motors Corp., 3 F.3d 980, 984 (6th Cir.1993) (preempting a breach of contract claim); Gordon v. Barnes Pumps, Inc., 999 F.2d 133, 137 (6th Cir.1993) (preempting a breach of contract claim); Davis v. Kentucky Finance Cos. Retirement Plan, 887 F.2d 689, 696-97 (6th Cir.1989) (preempting a claim for punitive damages); Varhola v. Doe, 820 F.2d 809, 817 (6th Cir.1987) (preempting a claim for punitive and extra-contractual damages). The Court must review the denial of Cates’ accidental death benefits claim in light of ERISA’s arbitrary and capricious standard of review. See Lake, 73 F.3d at 1376. The Court may only analyze the evidence available to the Plan administrator at the time of the decision, see Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 986 (6th Cir.1991) (applying ERISA), and will affirm Metropolitan’s denial of benefits if its interpretation of the applicable Plan provisions is reasonable, see Wendy’s Intern., Inc. v. Karsko, 94 F.3d 1010, 1012 (6th Cir.1996) (applying ERISA), or is rational in light of the Plan’s provisions, see Abbott v. Pipefitters Local Union No. 522, 94 F.3d 236, 240 (6th Cir.1996) (applying ERISA). Regarding the arbitrary and capricious standard, the United States Court of Appeals for the Sixth Circuit recently stated: This standard ‘is the least demanding form of judicial review of administrative action.... When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary and capricious.’ Id. (citation omitted). Cates argues Metropolitan’s interpretation of the Plan is unreasonable because Tennessee no longer follows the Distretti Rule. Cates further contends Fowler v. Metropolitan Life Ins. Co., 938 F.Supp. 476 (W.D.Tenn.1996), a case factually very similar to this case, does not offer guidance because it predates Harrell. The Court disagrees. First, Harrell applied Tennessee contract law in the absence of ERISA preemption. Second, Fowler is an ERISA case in" }, { "docid": "23213060", "title": "", "text": "the district court’s ruling, applying the same legal standard as the district court.” Whitaker v. Hartford Life & Accident Ins. Co., 404 F.3d 947, 949 (6th Cir.2005) (citation omitted). Although we likewise ordinarily review an ERISA plan administrator’s decision denying benefits de novo, Jones v. Metro. Life Ins. Co., 385 F.3d 654, 659-60 (6th Cir.2004), where, as here, the plan administrator is given the discretionary authority to determine eligibility for benefits or to construe the plan terms, “we review the administrator’s decision to deny benefits using ‘the highly deferential arbitrary and capricious standard of review.’ ” Killian v. Healthsource Provident Adm’rs, Inc., 152 F.3d 514, 520 (6th Cir. 1998) (quoting Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 380 (6th Cir.1996)). “This standard ‘is the least demanding form of judicial review of administrative action .... When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary and capricious.’ ” Id. (alteration in original) (quoting Perry v. United Food & Commercial Workers Dist. Unions 405 & 442, 64 F.3d 238, 241 (6th Cir.1995)). Consequently, a decision will be upheld “ ‘if it is the result of a deliberate principled reasoning process, and if it is supported by substantial evidence.’ ” Id. (quoting Baker v. United Mine Workers of America Health & Retirement Funds, 929 F.2d 1140, 1144 (6th Cir.1991)). “[T]he ultimate issue in an ERISA denial of benefits case is not whether discrete acts by the plan administrator are arbitrary and capricious but whether its ultimate decision denying benefits was arbitrary and capricious.” Spangler v. Lockheed Martin Energy Sys., Inc., 313 F.3d 356, 362 (6th Cir.2002). While the arbitrary and capricious standard is deferential, “ ‘it is not, however, without some teeth.’ ” McDonald v. Western-Southern Life Ins. Co., 347 F.3d 161, 172 (6th Cir.2003) (quoting Cozzie v. Metro. Life Ins. Co., 140 F.3d 1104, 1107-08 (7th Cir.1998)). “[Mjerely because our review must be deferential does not mean our review must also be inconsequential. While a benefits plan may vest discretion in the plan administrator, the federal courts" }, { "docid": "22161511", "title": "", "text": "F.3d at 557 (claimant must provide “satisfactory evidence” as part of proof of claim); Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 380-81 (6th Cir.1996) (claimant must submit “satisfactory proof of Total Disability to us”); Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 983 (6th Cir.1991) (disability determined “on basis of medical evidence satisfactory to the Insurance Company”). Contrary to Williams’ proposition, the requirement of a physician certifying that a participant is disabled does not dilute the discretionary authority of the Plan Administrator to determine eligibility. Accordingly, we hold that the district court was proper in applying the arbitrary and capricious standard of review. B. Having determined the appropriate standard of review, we now address whether the Plan Administrator acted arbitrarily and capriciously in this case. This Court has noted that the arbitrary and capricious standard is the least demanding form of judicial review of administrative action. See Davis v. Kentucky Fin. Cos. Retirement Plan, 887 F.2d 689, 693 (6th Cir.1989). When applying the arbitrary and capricious standard, the Court must decide whether the plan administrator’s decision was “rational in light of the plan’s provisions.” Daniel v. Eaton Corp., 839 F.2d 263, 267 (6th Cir.1988). Stated differently, “when it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.” Davis, 887 F.2d at 693. On appeal, Williams contends that the Plan Administrator acted arbitrarily and capriciously by failing to consider additional medical evidence that he submitted during the second appeal of his denial of benefits — the two letters submitted by Dr. Ahmed and Dr. Gold — on the basis that these letters indicate that Williams suffered the disabling stroke after he left IP’s employ. In advancing his argument, Williams claims that the letters make reference to a single stroke- — -the stroke which he suffered in 1993- — and that there is no evidence in the record to indicate that he suffered another stroke after leaving IP’s employ. After reviewing the' language of the Plan and the evidence on record, we hold that the" }, { "docid": "16357364", "title": "", "text": "the plan’s provisions.” Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 381 (6th Cir.1996) (internal quotation marks and citation omitted). “When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.” Davis v. Ky. Fin. Co. Ret. Plan, 887 F.2d 689, 693 (6th Cir.1989) (internal quotation marks and citation omitted). Indeed, we must accept a plan administrator’s rational interpretation of a plan even in the face of an equally rational interpretation offered by the participants. Morgan v. SKF USA, Inc., 385 F.3d 989, 992 (6th Cir.2004) (citing Ross v. Pension Plan for Hourly Employees of SKF Indus., Inc., 847 F.2d 329, 334 (6th Cir.1988)). Notwithstanding this deferential standard, courts must be aware of a possible conflict of interest and consider it as a factor in determining whether the decision to deny benefits was arbitrary and capricious. Id. at 694; see also Borda v. Hardy, Lewis, Pollard & Page, P.C., 138 F.3d 1062, 1069 (6th Cir.1998) (noting that “ ‘the abuse of discretion or arbitrary and capricious standard still applies, but application of the standard should be shaped by the circumstances of the inherent conflict of interest’ ”) (quoting Miller, 925 F.2d at 984). “[I]f a plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a ‘facto[r] in determining whether there is an abuse of discre tion.’ ” Firestone Tire, 489 U.S. at 115, 109 S.Ct. 948. As this Court noted in Killian, “there is an actual, readily apparent conflict ..., not a mere potential for one,” when the company or plan administrator is the insurer that ultimately pays the benefits. 152 F.3d at 521. Because United Technologies interpreted the terms of the plan for purposes of determining whether plaintiffs should receive early retirement benefits, a conflict of interest clearly is apparent. Thus, the district court erred in failing to take into account the existence of this conflict as a “factor in determining whether there is an abuse of discretion.” Firestone Tire, 489" }, { "docid": "23628700", "title": "", "text": "(TSA). The TSA identified several sedentary occupations, including your own occupation, consistent with your vocational history and physical abilities as outlined by Dr. MacKay. In October 2000, Spangler sued Met Life for wrongful denial of LTD benefits. II. Analysis A. This court reviews a decision of a district court in an ERISA benefits case de novo. Gatlin v. National Healthcare Corp., 16 Fed.Appx. 283, 2001 WL 223732, (6th Cir.2001) (citing Paul Revere Life Ins. Co. v. Brock, 28 F.3d 551, 553 (6th Cir.1994)). The parties agree that the standard of review in this case is whether the denial of benefits was arbitrary and capricious because Met Life had discre tionary authority to construe and interpret the benefit plan at issue. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 983 (6th Cir.1991); Elliott v. Lockheed Martin Energy Systems, Inc., 61 F.Supp.2d 745, 748 (E.D.Tenn.1999) A decision regarding eligibility for benefits is not arbitrary and capricious if the decision is “rational in light of the plan’s provisions.” Daniel v. Eaton Corp., 839 F.2d 263, 267 (6th Cir.1988). See also Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 381 (6th Cir.1996). Stated differently, “[wjhen it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.” Davis v. Kentucky Finance Cos. Retirement Plan, 887 F.2d 689, 693 (6th Cir.1989) (internal quotations and citation omitted). See also Perez v. Aetna Life Ins. Co., 150 F.3d 550, 555 (6th Cir.1998) (en banc). B. In requesting a transferable skills analysis by Crawford, Met Life sent only Dr. MacKay’s September 14, 1999, Physical Capacities Evaluation. Based on Dr. MacKay’s report, the vocational consultant at Crawford opined that Spangler could perform her own job as well as several other sedentary positions. It is undisput ed that the vocational consultant never examined Spangler nor had any other materials other than Dr. MacKay’s September 1999, Physical Capacities Evaluation on which to base this opinion. Contrary to Met" }, { "docid": "5713728", "title": "", "text": "Supreme Court stated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986): There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the [non-moving party’s] evidence is merely colorable, or is not significantly probative, summary judgment may be granted. (Citations omitted); see also Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). Consequently, the non-moving party must do more than raise some doubt as to the existence of a fact; the non-moving party must produce evidence that would be sufficient to require submission of the issue to the jury. Lucas v. Leaseway Multi Transp. Serv., Inc., 738 F.Supp. 214, 217 (E.D.Mich.1990), aff'd, 929 F.2d 701 (6th Cir.1991). III. ANALYSIS At the outset, this court notes that both parties agree that this action arises under and is controlled by ERISA. A. Appropriate Standard of Review In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court held that benefit determinations are to be reviewed de novo “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the plan.” Id. at 115, 109 S.Ct. at 956. When the plan provides for the requisite discretionary authority, the highly deferential arbitrary and capricious standard of review is appropriate. Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 983 (6th Cir.1991); Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 381 (6th Cir.1996). The Sixth Circuit has found that “ ‘[t]he arbitrary and capricious standard is the least demanding form of judicial review of administrative action’ and that ‘[w]hen it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious’ ”. Davis v. Kentucky Finance Cos. Retirement Plan, 887 F.2d 689, 693 (6th Cir.1989). The Sixth Circuit, in" }, { "docid": "23261112", "title": "", "text": "most favorable to the non-moving party. Anderson, 477 U.S. at 254-55, 106 S.Ct. at 2513. IV. A. Plaintiffs first argue that the district court erred in granting summary judgment to Caliber on their claim that Caliber violated ERISA’s anti-cutback provision by eliminating Plaintiffs’ right to lump sum distributions of their individual accounts under the SSRIP and the SBP. As an initial matter, we must address Plaintiffs’ argument that the district court erred in applying the arbitrary and capricious standard in reviewing this claim. 1. A de novo standard of review applies to decisions by plan administrators “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57, 103 L.Ed.2d 80 (1989); see also Perez v. Aetna Life Ins. Co., 150 F.3d 550, 555 (6th Cir.1998). However, where the plan clearly confers discretion upon the administrator to determine eligibility or construe the plan’s provisions, the determination is reviewed under the “arbitrary and capricious” standard. See Wells v. United States Steel & Carnegie Pension Fund, Inc., 950 F.2d 1244, 1248 (6th Cir.1991). “ ‘The arbitrary and capricious standard is the least demanding form of judicial review of administrative action. When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.’ ” Davis v. Kentucky Fin. Cos. Retirement Plan, 887 F.2d 689, 693 (6th Cir.1989)(quoting Pokratz v. Jones Dairy Farm, 771 F.2d 206, 209 (7th Cir.1985)). Our review of the district court’s determination of the proper standard of review is de novo. See Tiemeyer v. Community Mut. Ins. Co., 8 F.3d 1094, 1099 (6th Cir.1993). The district court held that the arbitrary and capricious standard of review applies because Plaintiffs’ claim that Caliber violated § 204(g) requires interpretation of the Caliber Plans to determine whether Plaintiffs had a pre-amendment right to a lump sum distribution. The district court based its conclusion upon § 10.9 of the SBP and § 11.9 of the" }, { "docid": "22167180", "title": "", "text": "affirmed Liberty’s determination, concluding that the denial of further LTD benefits was not arbitrary or capricious. This timely appeal followed. ANALYSIS Standard of Review This Court reviews de novo an ERISA plan administrator’s denial of benefits where the administrator has no discretion to determine benefits eligibility. McDonald v. Western-Southern Life Ins. Co., 347 F.3d 161, 168 (6th Cir.2003). If an ERISA benefits plan “gives the plan administrator discretionary authority to determine eligibility for benefits or to construe the terms of the plan,” however, we review a decision to deny benefits under an “arbitrary and capricious” standard of review. Id. (internal quotation marks and citations omitted). The parties agree that the plan at issue gives the plan administrator such discretionary authority. Specifically, the plan provides that Liberty shall possess the authority, in its sole discretion, to construe the terms of this policy and to determine eligibility hereunder. Liberty’s decisions regarding construction of the terms of this policy and benefit eligibility shall be conclusive and binding. “The arbitrary and capricious standard is the least demanding form of judicial review of administrative action.” McDonald, 347 F.3d at 169 (internal quotation marks and citations omitted). Under this standard of review, the Court determines whether, in light of the plan’s provisions, the plan administrator’s decision was rational. “[W]hen it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.” Id. (internal quotation marks and citations omitted). The Effect of Liberty’s Conflict of Interest Although we must review Liberty’s denial of benefits to Calvert under the highly deferential “arbitrary and capricious” standard, we must take into consideration the fact that Liberty is acting under a potential conflict of interest because it is both the decision-maker, determining which claims are covered, and also the payor of those claims. Marks v. Newcourt Credit Group, 342 F.3d 444, 457 (6th Cir.2003). Liberty’s ultimate disability determination was based upon the FCE of Robert Pearse and the file review of Dr. Sori-ano, both of whom Liberty selected and paid to assess Calvert’s claim. As the plan administrator, Liberty had" }, { "docid": "22167181", "title": "", "text": "judicial review of administrative action.” McDonald, 347 F.3d at 169 (internal quotation marks and citations omitted). Under this standard of review, the Court determines whether, in light of the plan’s provisions, the plan administrator’s decision was rational. “[W]hen it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.” Id. (internal quotation marks and citations omitted). The Effect of Liberty’s Conflict of Interest Although we must review Liberty’s denial of benefits to Calvert under the highly deferential “arbitrary and capricious” standard, we must take into consideration the fact that Liberty is acting under a potential conflict of interest because it is both the decision-maker, determining which claims are covered, and also the payor of those claims. Marks v. Newcourt Credit Group, 342 F.3d 444, 457 (6th Cir.2003). Liberty’s ultimate disability determination was based upon the FCE of Robert Pearse and the file review of Dr. Sori-ano, both of whom Liberty selected and paid to assess Calvert’s claim. As the plan administrator, Liberty had a clear incentive to contract with individuals who were inclined to find in its favor that Calvert was not entitled to continued LTD benefits. See e.g., Darland v. Fortis Benefits Ins. Co., 317 F.3d 516, 527-528 (6th Cir.2003). Considering Calvert’s age, payment of this claim beyond the 24 month limitation period would be expensive for Liberty. As the district court noted, there was an incentive for Liberty to terminate coverage or deny the claim. Under such facts, “the potential for self-interested decision-making is evident.” Univ. Hosps. of Cleveland v. Emerson Elec. Co., 202 F.3d 839, 846 n. 4 (6th Cir.2000). “The ‘possible conflict of interest’ inherent in this situation ‘should be taken into account as a factor in determining whether [Liberty’s] decision was arbitrary and capricious.’.” Id. (quoting Davis v. Kentucky Finance Cos. Retirement Plan, 887 F.2d 689, 694 (6th Cir.1989), cert. denied, 495 U.S. 905, 110 S.Ct. 1924, 109 L.Ed.2d 288 (1990)); see also Firestone Tire and Rubber Co., 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989); Darland, 317 F.3d at" }, { "docid": "18386027", "title": "", "text": "286 (6th Cir.2005), on which Osborne relies in that argument, does not aid him. In Calvert, there was no question of the insurance company’s reliance on the Dictionary, which it did not do in terminating the employee’s benefits. The sole question in Calvert was whether, considering all the circumstances, such termination was arbitrary and capricious. In reversing the district court’s ruling in favor of the insurance company, this court decided only that the termination was arbitrary and capricious. This court did not say anything about reliance on the Dictionary as a basis for determining the employee’s “own occupation,” which was not the issue in Calvert CONCLUSION The judgment of the district court dismissing the complaint is affirmed. R. GUY COLE, JR., Circuit Judge, dissenting. I respectfully dissent because I believe that the plain language of the disability policy compelled Hartford to consider Osborne’s actual job duties as President of Insurex in its review of his continued entitlement to benefits. In addition, Hartford has failed to provide a reasoned explanation for its reliance on the Dictionary where the record evidence shows, among other things, that Hartford did not dispute the accuracy or reliability of the job description provided by Osborne, and Hartford admits that there is a discrepancy between the significant travel required by Osborne’s actual position and the Dictio nary’s classification of his occupation as sedentary. I. STANDARD OF REVIEW The majority correctly states that our review of Hartford’s decision to terminate Osborne’s disability benefits is governed by the “arbitrary and capricious” standard. This standard has been described as “the least demanding form of judicial review of administrative action.” Calvert v. Firstar Fin., Inc., 409 F.3d 286, 292 (6th Cir.2005). “When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.” Id. (internal citation omitted). However, as we recently noted in Moon v. Unum Provident Corp., 405 F.3d 373, 379 (6th Cir.2005), merely because our review must be deferential does not mean our review must also be inconsequential. While a benefits plan may vest discretion in the" }, { "docid": "15350333", "title": "", "text": "Tire & Rubber Co., 489 U.S. at 115, 109 S.Ct. 948). In the case at hand, the language of the policy expressly grants Fortis discretionary authority to determine eligibility for benefits or to construe plan terms. Specifically, the section of the policy entitled “Claims Provisions” states in pertinent part: Authority We have the sole discretionary authority to determine eligibility for participation or benefits and to interpret the terms of the Policy. All determinations and interpretations made by us are conclusive and binding on all parties. (J.A. at 92.) Thus, this Court reviews the district court’s grant of summary judgment to ‘“determine if there is any genuine issue of material fact whether the insurance company’s decision to deny benefits was arbitrary and capricious.’ ” Killian, 152 F.3d at 520 (quoting Miller v. Metro. Life Ins. Co., 925 F.2d 979, 986 (6th Cir.1991)). Under this deferential “arbitrary and capricious” standard, this Court will uphold a benefit determination if it is “rational in fight of the plan’s provisions.” Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 381 (6th Cir.1996) (internal quotations and citation omitted). Therefore, “[w]hen it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.” Davis v. Kentucky Finance Cos. Ret. Plan, 887 F.2d 689, 693 (6th Cir.1989) (internal quotations and citation omitted). Notwithstanding this deferential standard of review, courts must be aware of a possible conflict of interest and consider it as a factor in determining whether the decision to deny benefits was arbitrary and capricious. Id. at 694; see also Borda v. Hardy, Lewis, Pollard & Page, P.C., 138 F.3d 1062, 1069 (6th Cir.1998) (noting that “ ‘the abuse of discretion or arbitrary and capricious standard still applies, but application of the standard should be shaped by the circumstances of the inherent conflict of interest’ ”) (quoting Miller, 925 F.2d at 984). As noted by the Court in Firestone Tire & Rubber, “if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be" }, { "docid": "15350334", "title": "", "text": "381 (6th Cir.1996) (internal quotations and citation omitted). Therefore, “[w]hen it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.” Davis v. Kentucky Finance Cos. Ret. Plan, 887 F.2d 689, 693 (6th Cir.1989) (internal quotations and citation omitted). Notwithstanding this deferential standard of review, courts must be aware of a possible conflict of interest and consider it as a factor in determining whether the decision to deny benefits was arbitrary and capricious. Id. at 694; see also Borda v. Hardy, Lewis, Pollard & Page, P.C., 138 F.3d 1062, 1069 (6th Cir.1998) (noting that “ ‘the abuse of discretion or arbitrary and capricious standard still applies, but application of the standard should be shaped by the circumstances of the inherent conflict of interest’ ”) (quoting Miller, 925 F.2d at 984). As noted by the Court in Firestone Tire & Rubber, “if a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a ‘facto[r] in determining whether there is an abuse of discretion.’ ” Firestone Tire & Rubber Co., 489 U.S. at 115, 109 S.Ct. 948 (quoting Restatement (Seoond) Of Trusts § 187, cmt d (1959)). In this case, we believe that the district court should have considered whether Fortis was operating under an apparent conflict of interest when it denied Darland’s claim for continued LTD benefits. As Darland points out, this Court in Killian noted, “there is an actual, readily apparent conflict here, not a mere potential for one” when the insurance company/plan administrator is the insurer that ultimately pays the benefits. Killian, 152 F.3d at 521. In this case, Fortis’ ultimate disability determination was based upon the “peer review” panels selected by Network Medical Review Company, which Fortis had contracted to assess Darland’s claim. As the plan administrator, Fortis had a “clear incentive” to contract with a company whose medical experts were inclined to find in its favor that Darland was not entitled to continued LTD benefits. Regula v. Delta Family-Care Disability Survivorship" }, { "docid": "5713729", "title": "", "text": "Appropriate Standard of Review In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court held that benefit determinations are to be reviewed de novo “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the plan.” Id. at 115, 109 S.Ct. at 956. When the plan provides for the requisite discretionary authority, the highly deferential arbitrary and capricious standard of review is appropriate. Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 983 (6th Cir.1991); Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 381 (6th Cir.1996). The Sixth Circuit has found that “ ‘[t]he arbitrary and capricious standard is the least demanding form of judicial review of administrative action’ and that ‘[w]hen it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious’ ”. Davis v. Kentucky Finance Cos. Retirement Plan, 887 F.2d 689, 693 (6th Cir.1989). The Sixth Circuit, in Miller, held that the defendant’s claim decisions were reviewable under the arbitrary and capricious standard where the policy language read “on the basis of medical evidence satisfactory to the Insurance Company.” Id. at 988 (emphasis in original). Recently, the Sixth Circuit held that plan language requiring a claimant to submit “satisfactory proof of total disability to us” triggered the arbitrary and capricious standard. Yeager, supra at 381. The Yeager court found no distinction between that language and the language found in Miller. Yeager, 88 F.3d at 381. MetLife urges this court to apply the arbitrary and capricious standard in this ease. In support of its position, MetLife cites the following policy language to demonstrate that it had discretionary authority to review claims: AD & D Benefits 5. PAYMENT OF BENEFITS The Accidental Death or dismemberment Benefits for a loss will be paid when we receive notice and satisfactory proof of that loss. The Accidental Death or Dismemberment Benefits for loss of life will be paid to the Beneficiary. All other Accidental Death or Dismemberment Benefit" }, { "docid": "22161510", "title": "", "text": "decisions and not all; and having thoroughly reviewed the Plan, we find that the language in the Plan grants the Plan Administrator discretion to determine eligibility for disability retirement benefits. Williams misconstrues the unambiguous language of the Plan. When interpreting ERISA plan provisions, general principles of contract law dictate that we interpret the provisions according to their plain meaning in an ordinary and popular sense. See Perez v. Aetna Life Ins. Co., 150 F.3d 550, 556 (6th Cir.1998). In applying the “plain meaning” analysis, we “must give effect to the unambiguous terms of an ERISA plan.” Id. (quoting Lake v. Metropolitan Life Ins. Co., 73 F.3d 1372, 1379 (6th Cir.1996)). Reading the language in an ordinary and popular sense, the Plan clearly gives the Plan Administrator authority to determine eligibility for disability benefits inasmuch as the Plan Administrator must “find that the Disability is likely to be permanent during the remainder of the Participant’s life.” (J.A. at 120). Moreover, we have held in similar cases that the plan administrator has discretionary authority. See Perez, 150 F.3d at 557 (claimant must provide “satisfactory evidence” as part of proof of claim); Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 380-81 (6th Cir.1996) (claimant must submit “satisfactory proof of Total Disability to us”); Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 983 (6th Cir.1991) (disability determined “on basis of medical evidence satisfactory to the Insurance Company”). Contrary to Williams’ proposition, the requirement of a physician certifying that a participant is disabled does not dilute the discretionary authority of the Plan Administrator to determine eligibility. Accordingly, we hold that the district court was proper in applying the arbitrary and capricious standard of review. B. Having determined the appropriate standard of review, we now address whether the Plan Administrator acted arbitrarily and capriciously in this case. This Court has noted that the arbitrary and capricious standard is the least demanding form of judicial review of administrative action. See Davis v. Kentucky Fin. Cos. Retirement Plan, 887 F.2d 689, 693 (6th Cir.1989). When applying the arbitrary and capricious standard, the Court must decide" }, { "docid": "20163337", "title": "", "text": "Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)). When the plan gives the administrator discretionary authority, we apply the highly deferential arbitrary and capricious standard of review. Id. Under this deferential standard, when it is possible to offer a reasoned explanation, based on the evidence for a particular outcome, that outcome is not arbitrary or capricious. Univ. Hosp. of Cleveland v. Emerson Elec., 202 F.3d 839, 846 (6th Cir.2000) (quoting Davis v. Kentucky Finance Cos. Retirement Plan, 887 F.2d 689, 693 (6th Cir.1989)). Deferential review is tempered, however, when an important conflict of interest consideration requires that benefits decisions be closely scrutinized. When the same entity determines eligibility for benefits and also pays those benefits out of its own pocket, an inherent conflict of interest arises. In close cases, courts must consider that conflict as one factor among several in determining whether the plan administrator abused its discretion in denying benefits. Metro. Life Ins. Co. v. Glenn, — U.S. -, 128 S.Ct. 2343, 2345, 171 L.Ed.2d 299 (2008); De Lisle v. Sun Life Assur. Co. of Can., 558 F.3d 440, 444 (6th Cir.2009). Here, Cox concedes that Standard’s plan contains language sufficient to grant discretion to Standard. Further, Standard both grants eligibility for benefits and pays benefits. Therefore, we review this case under the highly deferential arbitrary and capricious standard, while bearing in mind that a conflict of interest exists. III. A. Post Hoc Justification for Termination and Review of the Record Cox and Standard present inconsistent facts regarding the following: (1) whether Standard’s decision to discontinue long-term disability benefits was based on a finding that Cox did not have a stroke, i.e. whether the no stroke justification was advanced post hoc; (2) whether the record indicates that Dr. Yoci was the only physician who diagnosed Cox as suffering from a stroke; and (3) whether Standard incor rectly characterized Cox’s disability as being a cognitive deficit when it discontinued his long-term benefits. Cox claims that Standard did not use the “no stroke” justification to terminate his benefits until it reached" }, { "docid": "20035832", "title": "", "text": "discretionary authority to determine eligibility and construe policy terms, the more deferential arbitrary and capricious standard of review applies. Id. As the parties acknowledge, the arbitrary and capricious standard applies in this case because the policy grants Guardian “discretionary authority to determine eligibility for benefits and to construe the terms of the plan with respect to claims.” The arbitrary and capricious standard is “the least demanding form of judicial review of administrative action. When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary or capricious.” Shields v. Reader’s Digest Ass’n, Inc., 331 F.3d 536, 541 (6th Cir.2003) (quotation marks and citation omitted). The arbitrary and capricious standard requires courts to review the plan provisions and the record evidence and determine if the administrator’s decision was “rational.” Id. Although the evidence may be sufficient to support a finding of disability, if there is a reasonable explanation for the administrator’s decision denying benefits in light of the plan’s provisions, then the decision is neither arbitrary nor capricious. Williams v. Int’l Paper Co., 227 F.3d 706, 712 (6th Cir.2000). Yet the deferential standard of review does not mean courts should “rubber stamp[]” a plan administrator’s decision — a court must review the quantity and quality of the medical evidence on each side. Evans v. UnumProvident Corp., 434 F.3d 866, 876 (6th Cir.2006). A decision reviewed according to the arbitrary and capricious standard must be upheld if it results from “a deliberate principled reasoning process” and is supported by “substantial evidence.” Baker v. United Mine Workers of Am. Health & Ret. Funds, 929 F.2d 1140, 1144 (6th Cir.1991). A court may consider only that evidence presented to the plan administrator at the time he or she determined the employee’s eligibility in accordance with the plan’s terms. The court’s review is thus limited to the administrative record. See Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 618 (6th Cir.1998). III. Although Schwalm raises numerous objections to Guardian’s decision to terminate his benefits, his arguments can be divided into two categories. First, Schwalm" }, { "docid": "15189792", "title": "", "text": "clear that such language grants discretionary authority to Prudential as the plan administrator); Mitchell v. Prudential Health Care Plan, No. 01-331-GMS, 2002 WL 1284947 at *6-7 (D.Del. June 10, 2002) (explaining that reaching a determination requires “[t]he ability to think or deliberate prior to making a decision is the touchstone of discretion”). Accordingly, the Court is persuaded that the Plan vests sufficient discretion in Prudential to require application of the arbitrary and capricious standard of review in the case sub judice. Pursuant to the arbitrary and capricious standard, “ ‘an ERISA benefit plan administrator’s decisions on eligibility for benefits are not arbitrary and capricious if they are rational in light of the plan’s provisions.’ ” Yeager v. Reliance Standard Life Ins. Co., 88 F.3d 376, 381 (6th Cir.1996) (quoting Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 984 (6th Cir.1991)). See also Williams v. International Paper Co., 227 F.3d 706, 712 (6th Cir.2000) (describing review under the arbitrary and capricious standard as: “ ‘when it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary and capricious.’ ”) (quoting Davis v. Kentucky Fin. Cos. Retirement Plan, 887 F.2d 689, 693 (6th Cir. 1989)); Brown v. National City Corp., 974 F.Supp. 1037, 1041-42 (W.D.Ky.1997), ajfd, 166 F.3d 1213 (6th Cir.1998) (unpublished decision). Adams received benefits for twenty-four (24) months prior to Prudential’s termination in September 2001. Under the terms of the Plan, he must show that Prudential acted arbitrarily and capriciously in denying his long-term disability benefits because Adams was “not able to perform for wage or profit the material and substantial duties of any job for which [he is] reasonably fitted by [his] education, training or experience.” 2. Treating Physician Rule Adams urges the Court to apply “the treating physician rule.” See Darland v. Fortis Benefits Ins. Co., 317 F.3d 516, 532 (6th Cir.2003) (holding that “the treating physician rule should apply in ERISA cases, requiring courts to defer to the opinions of a claimant’s treating physician unless there is substantial evidence contradicting them”). On May 27, 2003, however," }, { "docid": "23687728", "title": "", "text": "appropriate standard of review. “Where, as here, an insurance plan administrator is vested with discretion to interpret the plan, we review the denial of benefits under the arbitrary and capricious standard.” Rochow v. Life Ins. Co. of N. Am., 482 F.3d 860, 865 (6th Cir.2007) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)). “This standard ‘is the least demanding form of judicial review of administrative action.... When it is possible to offer a reasoned explanation, based on the evidence, for a particular outcome, that outcome is not arbitrary and capricious.’ ” Evans v. UnumProvident Corp., 434 F.3d 866, 876 (6th Cir.2006) (quoting Killian v. Healthsource Provident Adm’rs, Inc., 152 F.3d 514, 520 (6th Cir.1998)). “Consequently, a decision will be upheld ‘if it is the result of a deliberate principled reasoning process, and if it is supported by substantial evidence.’ ” Id. Although the district court acknowledged that Sun Life had presented a sig nificant quantity of medical evidence in support of its finding of no disability, the court discounted the quality of this evidence. Specifically, the court had difficulty with the fact that Sun Life’s reviewing professionals conceded DeLisle’s “veritable cornucopia of afflictions” but nonetheless concluded that she was not disabled. In the court’s opinion, “[t]he most likely explanation” for DeLisle’s termination was that she had become disabled as a result of her deteriorating physical condition. Under the arbitrary-and-capricious standard, however, it is improper for a reviewing court to weigh conflicting evidence or substitute its judgement for that of the plan administrator. Gismondi v. United Technologies Corp., 408 F.3d 295, 298 (6th Cir.2005); Whitaker v. Hartford Life & Accident Ins. Co., 404 F.3d 947, 949-50 (6th Cir.2005). Substantial evidence in the record supports Sun Life’s findings that DeLisle was terminated from her job at Sidney Kran-dall & Sons for reasons unrelated to her health and that she was not disabled as of April 17, 2002, the date of her termination. The same day Krandall terminated her employment, DeLise told her therapist, Diane Cushing, that she “got fired.” Cush-ing’s session" } ]

[ { "docid": "21589697", "title": "", "text": "a favorable decision.” Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (internal quotes and citations omitted). “The injury alleged must be ... distinct and palpable, ... and not abstract or conjectural or hypothetical.” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984) (internal quotes and citations omitted). We are mindful that in analyzing standing issues, we “must accept as true all material allegations of the complaint,” Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). This obligation, at least at first blush, might appear to be in tension with the Court’s further admonition that an allegation of injury or of redressability that is too speculative will not “suffice to invoke the federal judicial power.” Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 44, 96 S.Ct. 1917, 1927, 48 L.Ed.2d 450 (1976); accord Warth, 422 U.S. at 507, 95 S.Ct. at 2209. We think this ostensible tension is reconciled by distinguishing allegations of facts, either historical or otherwise demonstrable, from allegations that are really predictions. When considering any chain of allegations for standing purposes, we may reject as overly speculative those links which are predictions of future events (especially future actions to be taken by third parties) and those which predict a future injury that will result from present or ongoing actions — those types of allegations that are not normally susceptible of label-ling as “true” or “false.” Our authority to reject as speculative allegations of future injuries is well-established. See Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969). In Lyons, the Supreme Court reviewed the claim of an individual who alleged that he had been injured by an unjustified “choke-hold” administered to him by a Los Ange-les police officer and that he “justifiably fears that any" } ]

[ { "docid": "8788586", "title": "", "text": "was simply another manifestation of the injury that those practices had inflicted.... Fair Employment Council of Greater Washington, 28 F.3d at 1277 (emphasis added). “The mere fact that an organization redirects some of its resources to litigation and legal counseling in response to actions or inactions of another party is insufficient to impart standing upon the organization.” Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1434 (D.C.Cir.1995) (quoted in parenthetical, quoted citation omitted). In fact, our Circuit Court “explicitly rejected] [a plaintiffs] suggestion that the mere expense of testing [a defendant] constitutes ‘injury in fact’ fairly traceable to [the defendant’s] conduct.” Fair Employment Council of Greater Washington, 28 F.3d at 1276. Any injury from such testing is not traceable to the defendant’s conduct, but “self-inflicted; it results not from any actions taken by [the defendant], but rather from the [plaintiffs] own budgetary choices.” Id. (emphasis added). While ERC broadly alleges Post’s actions “directly interfered with the ERC’s existing counseling, education, and advocacy programs and activities,” (Pl.’s Opp’n at 25), discovery has revealed that any injury ERC suffered was due to its own decision to investigate Post. (See PL’s Statement of Undisputed Facts [Dkt. #123-10] ¶113 (noting that Ezinwanne Hawkins and Rebecca Crootof “testified that because of [their] work on the Post investigation, [they were] unable to” perform various ERC activities).) Indeed, ERC essentially concedes its sole injury occurred as the result of its decision to investigate Post. In that regard, it specifically noted that it “was forced to expend time, resources, and personnel to conduct a more in-depth nationwide investigation of Post, in order to identify the extent and effect of Post’s illegal practices so that it could tailor its counseling, education, and advocacy efforts to effectively combat the problem.” (Id.) Notwithstanding these points raised by Post, ERC argues it has still established constitutional standing because its investigation of Post was not necessarily in anticipation of litigation. In that regard, the Executive Director of ERC testified that testing is not a “tool to create litigation,” but a tool to “identify whether discriminatory conduct exists” and “the extent of" }, { "docid": "6184273", "title": "", "text": "a theory of costs, id., Plaintiffs here cannot establish standing by incurring costs that “are simply the product of their fear of’ NPIS poultry, id. at 1152. Accordingly, Plaintiffs’ “self-inflicted injuries are not fairly traceable” to the NPIS, “and their subjective fear ... does not give rise to standing.” Id. at 1152-53. IV. FWW argues that it has standing to pursue its claims on its own behalf. FWW may assert standing on its own behalf, but organizational standing requires FWW, “like an individual plaintiff, to show actual or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be redressed by a favorable court decision.” Equal Rights Ctr., 633 F.3d at 1138 (internal quotation marks omitted). An organization must allege more than a frustration of its purpose because frustration of an organization’s objectives “is the type of abstract concern that does not impart standing.” Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C.Cir.1995). “The court has distinguished between organizations that allege that their activities have been impeded from those that merely allege that their mission has been compromised.” Abigail All. for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129, 133 (D.C.Cir.2006). Accordingly, for FWW to establish standing in its own right, it must have “suffered a concrete and demonstrable injury to [its] activities.” PETA v. USDA, 797 F.3d 1087, 1093 (D.C.Cir.2015) (internal quotation marks omitted). Making this determination is a two-part inquiry — “we ask, first, whether the agency’s action or omission to act injured the [organization’s] interest and, second, whether the organization used its resources to counteract that harm.” Id. at 1094 (internal quotation marks omitted). We need not address the second prong of this inquiry because it is clear that FWW has not sufficiently alleged an injury to its interest. To allege an injury to its interest, “an organization must allege that the defendant’s conduct perceptibly impaired the organization’s ability to provide services in order to establish injury in fact.” Turlock Irrigation Dist. v. FERC, 786 F.3d 18, 24 (D.C.Cir.2015) (internal quotation marks omitted). An organization’s ability" }, { "docid": "10119077", "title": "", "text": "doctrine’s actual injury requirement.” (citing Sierra Club v. Morton, 405 U.S. 727, 739-40, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972))). This is true whether the advocacy takes place through litigation or administrative proceedings. See Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 12 (D.C.Cir.2011) (concluding that time and money spent “submitting comments to the EPA” and “testifying before the United States Senate” does not suffice to establish an injury in fact). “The mere fact that an organization redirects some of its resources to litigation and legal counseling in response to actions or inactions of another party is insufficient -to impart standing upon the organization.” Nat’l Taxpayers Union, Inc. v. U.S., 68 F.3d 1428, 1434 (D.C.Cir.1995) (quotations and citation omitted). The Trust’s decision to expend more of its resources by participating in both Don Pedro’s and La Grange’s licensing proceedings is the type of alleged harm that we have repeatedly held does not qualify as an injury in fact. The Trust, relying on this Court’s decision in Equal Rights Center v. Post Properties, Inc., argues that if a “defendant’s allegedly wrongful action prompts an organization to ‘increase! ] the resources [it] must devote to programs independent of its suit,’ ... the organization has shown an injury in fact.” 633 F.3d 1136, 1138 (D.C.Cir.2011) (quoting Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C.Cir.1990)). But Equal Rights Center is inap-posite. As we noted in that case, an organization must allege that the defendant’s conduct “perceptibly impaired” the organization’s ability to provide services in order to establish injury in fact. 633 F.3d at 1138-39 (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)). The Trust does not allege impairment of its ability to provide services, only impairment of its advocacy. As we noted above, this will not suffice. The Trust’s second asserted injury, a decline in tourism revenue, is also insufficient to satisfy the injury in fact requirement. It is purely conjectural. The Trust theorizes that if La Grange and Don Pedro are not licensed in a single proceeding, then the two" }, { "docid": "9190484", "title": "", "text": "litigation. See Nat'l Ass'n of Home Builders, 667 F.3d at 12 (quoting Ctr. for Law & Educ. v. Dep't of Educ., 396 F.3d 1152, 1162 (D.C. Cir. 2005) ). To defeat a motion to dismiss, an organization must substantiate its injury \"by affidavit or other specific evidence that a challenged statute or policy frustrates the organization's goals and requires the organization to expend resources ... [it] otherwise would spend in other ways.\" Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 943 (9th Cir. 2011) (internal quotation marks and citation omitted). In other words, although a plaintiff need not prove facts to defeat a motion to dismiss, it must allege some facts that, if true, would establish standing. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130 ; Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). CRS alleges that it has standing here \"because the interests at stake are germane to [its] purposes, and FDA's response will require further extensive advocacy work on [its] part ... [,] placing a significant drain on its limited resources, causing a diversion of its resources, and the frustration of its mission.\" Compl., ¶ 209. Such broad allegations cannot suffice to allege standing, particularly where advocacy spending and detriment to its mission standing alone have been held not to constitute sufficient injury. See Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 919-21 (D.C. Cir. 2015). The Court needs to know how resources are being drained and from and to where they are being diverted. CRS conclusorily states that \"in the absence of the amended regulation, it would cost [it] a substantial sum of money to educate and protect the welfare of potential clinical trial participants nationwide about the issues with animal testing,\" Compl., ¶ 210, but the Court, without more specifics, is unable to discern whether those outlays would be \"normally expended\" to carry out the organization's advocacy mission and the ways in which resources would otherwise be spent if the regulation were amended. See Nat'l Ass'n of Home Builders, 667 F.3d at 12 (citation omitted)." }, { "docid": "9190482", "title": "", "text": "they already have such information. As Defendant notes, because they \"already possess the information they claim they need to make informed decisions[,] ... any harm they might face in the future would result from their informed decision to participate in clinical drug trials and not FDA's denial of their citizen petition.\" Mot. at 13. Notably, the language Plaintiffs want added to the regulation is generic and would not change with each clinical trial. That is, there is no difference between what they already know and what they would see in informed-consent materials if the FDA approved the Petition. As a result, it is difficult to imagine a scenario in which any individual would have standing here. The Court, consequently, finds that all of the individual Plaintiffs lack standing. B. CRS Plaintiffs next argue that CRS itself has standing to sue. Organizations can sue either on their own behalf (\"organizational standing\") or on behalf of their members (\"representational standing\"). See Scenic Am., Inc. v. U.S. Dep't of Transp., 983 F.Supp.2d 170, 176 (D.D.C. 2013). Because CRS does not have any members, it may invoke only the former. To prevail, it must show the same three standing elements as any individual-(1) injury, (2) causation, and (3) redressability. The injury must be \" 'concrete and demonstrable ... with [a] consequent drain on [its] resources,' rather than 'simply a setback to [its] abstract social interests.' \" People for the Ethical Treatment of Animals, Inc. (PETA) v. U.S. Dep't of Agric., 7 F.Supp.3d 1, 8 (D.D.C. 2013) (quoting Nat'l Ass'n of Home Builders v. EPA, 667 F.3d 6, 11 (D.C. Cir. 2012) ) (alterations in original). It is here that CRS falters. Caselaw for organizational standing is not a model of clarity, but this Circuit has made clear that, at a minimum, the organization must \"allege 'that discrete programmatic concerns are being directly and adversely affected by' the [agency's] inaction,\" PETA, 7 F.Supp.3d at 8 (quoting Nat'l Taxpayers Union, Inc., v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995) ), not merely that the organization has had to increase spending on \"pure issue-advocacy\" or" }, { "docid": "6184274", "title": "", "text": "impeded from those that merely allege that their mission has been compromised.” Abigail All. for Better Access to Developmental Drugs v. Eschenbach, 469 F.3d 129, 133 (D.C.Cir.2006). Accordingly, for FWW to establish standing in its own right, it must have “suffered a concrete and demonstrable injury to [its] activities.” PETA v. USDA, 797 F.3d 1087, 1093 (D.C.Cir.2015) (internal quotation marks omitted). Making this determination is a two-part inquiry — “we ask, first, whether the agency’s action or omission to act injured the [organization’s] interest and, second, whether the organization used its resources to counteract that harm.” Id. at 1094 (internal quotation marks omitted). We need not address the second prong of this inquiry because it is clear that FWW has not sufficiently alleged an injury to its interest. To allege an injury to its interest, “an organization must allege that the defendant’s conduct perceptibly impaired the organization’s ability to provide services in order to establish injury in fact.” Turlock Irrigation Dist. v. FERC, 786 F.3d 18, 24 (D.C.Cir.2015) (internal quotation marks omitted). An organization’s ability to provide services has been perceptibly impaired when the defendant’s conduct causes an “inhibition of [the organization’s] daily operations.” PETA 797 F.3d at 1094 (quoting Action All. of Senior Citizens of Greater Phila. v. Heckler, 789 F.2d 931, 938 (D.C.Cir.1986)). Our precedent makes clear that an organization’s use of resources for litigation, investigation in anticipation of litigation, or advocacy is not sufficient to give rise to an Article III injury. Id. at 1093-94; Turlock Irrigation Dist., 786 F.3d at 24. Furthermore, an organization does not suffer an injury in fact where it “expend[s] resources to educate its members and others” unless doing so subjects the organization to “operational costs beyond those normally expended.” Nat’l Taxpayers Union, Inc., 68 F.3d at 1434; see also Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 12 (D.C.Cir.2011) (organization’s expenditures must be for “ ‘operational costs beyond those normally expended’ to carry out its advocacy mission” (quoting Nat’l Taxpayers Union, 68 F.3d at 1434)). According to Patricia Lovera, the Assistant Director of FWW, one of FWW’s “primary purposes" }, { "docid": "4836133", "title": "", "text": "allegedly unlawful ‘practices.’ ” General Mills’ Opp’n to NCL’s Mot. Remand at 3 (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 379, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)). General Mills’ argument is unconvincing. “Organizations have standing in their own right if they establish that the organization has suffered an injury-in-fact, i.e., a ‘concrete and demonstrable injury to the organization’s activities.’ ” Center for Auto Safety v. Nat’l Highway Traffic Safety Admin., 793 F.2d 1322, 1329 n. 41 (D.C.Cir.1986) (quoting Havens, 455 U.S. at 379, 102 S.Ct. 1114); see Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C.Cir.1995) (holding that organizational standing is proper where the challenged conduct has directly harmed an organization’s ability to provide services). A plaintiff does not have standing, however, if the alleged violation merely sets back the organization’s abstract social interests or frustrates its objectives. See Nat’l Taxpayers Union, 68 F.3d at 1433 (holding that frustration of an organizations’ objectives “is the type of abstract concern that does not impart standing.”). The D.C. Circuit has rejected the suggestion that “the time and money that plaintiffs spend in bringing suit against a defendant would itself constitute a sufficient ‘injury in fact,’ ” finding that to be “a circular position that would effectively abolish the requirement altogether.” Fair Employment Council v. BMC Mktg. Corp., 28 F.3d 1268, 1277 (D.C.Cir.1994); see also Abigail Alliance for Better Access to Dev. Drugs v. Von Eschenbach, 469 F.3d 129, 133 (D.C.Cir.2006) (“[A]n organization is not injured by expending resources to challenge the regulation itself; we do not recognize such self-inflicted harm.”); Equal Rights Center v. Post Properties, Inc., 657 F.Supp.2d 197, 201 (D.D.C.2009) (“[Organizational plaintiffs cannot establish injury that is fairly traceable to defendants’ conduct merely by deciding to devote resources to identify and counteract misinformation.... Indeed, were an association able to gain standing merely by choosing to fight a policy that is contrary to its mission, the courthouse door would be open to all associations.”) (internal quotations and alteration omitted). General Mills contends that the D.C. Circuit has found organizational standing on facts similar to those" }, { "docid": "9190485", "title": "", "text": "a significant drain on its limited resources, causing a diversion of its resources, and the frustration of its mission.\" Compl., ¶ 209. Such broad allegations cannot suffice to allege standing, particularly where advocacy spending and detriment to its mission standing alone have been held not to constitute sufficient injury. See Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 919-21 (D.C. Cir. 2015). The Court needs to know how resources are being drained and from and to where they are being diverted. CRS conclusorily states that \"in the absence of the amended regulation, it would cost [it] a substantial sum of money to educate and protect the welfare of potential clinical trial participants nationwide about the issues with animal testing,\" Compl., ¶ 210, but the Court, without more specifics, is unable to discern whether those outlays would be \"normally expended\" to carry out the organization's advocacy mission and the ways in which resources would otherwise be spent if the regulation were amended. See Nat'l Ass'n of Home Builders, 667 F.3d at 12 (citation omitted). The Court notes that this is not a strenuous burden at the motion-to-dismiss stage, but a necessary one nonetheless. See Scenic America, 983 F.Supp.2d at 178 (finding organization had standing based on declarations detailing \"[c]oncrete examples of the activities that [the organization] undertakes to oppose\" the challenged conduct); PETA, 7 F.Supp.3d at 8-9 (finding organization had standing based on \"two specific, programmatic harms\" alleged). Two sentences of general assertions just does not cut it. Given that CRS may well be able to clear this hurdle, the Court will not dismiss the entire case. Instead, it will only dismiss the Complaint and give Plaintiffs thirty days to file an amended one if they so choose. See Ciralsky v. CIA, 355 F.3d 661, 666-67 (D.C. Cir. 2004) (distinguishing between dismissing case and dismissing complaint only). IV. Conclusion Because none of the Plaintiffs can satisfy the constitutional requirements for Article III standing, the Court will grant Defendant's Motion to Dismiss, while permitting leave to amend. An Order to that effect will issue this same day." }, { "docid": "6184275", "title": "", "text": "to provide services has been perceptibly impaired when the defendant’s conduct causes an “inhibition of [the organization’s] daily operations.” PETA 797 F.3d at 1094 (quoting Action All. of Senior Citizens of Greater Phila. v. Heckler, 789 F.2d 931, 938 (D.C.Cir.1986)). Our precedent makes clear that an organization’s use of resources for litigation, investigation in anticipation of litigation, or advocacy is not sufficient to give rise to an Article III injury. Id. at 1093-94; Turlock Irrigation Dist., 786 F.3d at 24. Furthermore, an organization does not suffer an injury in fact where it “expend[s] resources to educate its members and others” unless doing so subjects the organization to “operational costs beyond those normally expended.” Nat’l Taxpayers Union, Inc., 68 F.3d at 1434; see also Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 12 (D.C.Cir.2011) (organization’s expenditures must be for “ ‘operational costs beyond those normally expended’ to carry out its advocacy mission” (quoting Nat’l Taxpayers Union, 68 F.3d at 1434)). According to Patricia Lovera, the Assistant Director of FWW, one of FWW’s “primary purposes is to educate the public about food systems that guarantee safe, wholesome food produced in a sustainable manner.” Lovera Decl. ¶ 4, J.A. 68. As a result, FWW is concerned that NPIS will allow inadequately trained staff to inspect food and that food safety will suffer because inspection will be turned over to poultry establishment personnel. Id. ¶¶ 8-9, 21, J.A. 69-70, 72-73. Lovera contends that allowing the NPIS to go into effect will cause “all of the organization’s time and resources spent advocating against NPIS [to have been] wasted.” Id. ¶ 10, J.A. 70. Lovera also claims that “FWW would have to increase the resources that it spends on educating the general public and its members that the NPIS rules do not allow for the inspection of poultry product prescribed by the PPIA.” Id. ¶ 11, J.A. 70. Additionally, “FWW will spend time and money on increasing its efforts to educate members of the public that just because a poultry product has a USDA inspection legend does not mean that it is not adulterated" }, { "docid": "18242157", "title": "", "text": "214 (1982)). This NAHB has not done. NAHB alleges it has “spent considerable staff time and monetary resources in the quest to clarify CWA jurisdiction,” such as submitting comments to the EPA and to the Corps, testifying before the United States Senate and participating in “numerous court cases,” including this one. Compl. ¶ 21; Decl. of Thomas J. Ward, NAHB Vice President of Litig. & Legal Servs. ¶¶ 8, 17-19 (filed Feb. 4, 2010) (Ward Decl.). But these claims do not suffice. First, this litigation’s expenses do not qualify as an injury in fact. See Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C.Cir.1990) (“An organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit.”). As for the other expenditures claimed, NAHB has not shown they were for “operational costs beyond those normally expended” to carry out its advocacy mission. Nat’l Taxpayers Union, 68 F.3d at 1434 (association’s “self-serving observation that it has expended resources to educate its members and others regarding [challenged statutory provision] does not present an injury in fact”); id. (“The mere fact that an organization redirects some of its resources to litigation and legal counseling in response to actions or inactions of another party is insufficient to impart standing upon the organization.” (quotation marks omitted)); Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1162 (D.C.Cir. 2005) (“Here, the only ‘service’ impaired is pure issue-advocacy — the very type of activity distinguished by Havens.” (citing Havens, 455 U.S. at 379, 102 S.Ct. 1114)). Because NAHB has not asserted the alleged violation “perceptibly impaired” a non-abstract interest, we conclude it has not shown organizational standing sufficient to satisfy Article III. See Havens, 455 U.S. at 379, 102 S.Ct. 1114. B. Representational Standing NAHB also claims representational standing on behalf of its members. To establish representational standing, an association must demonstrate that “ ‘(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the" }, { "docid": "17997603", "title": "", "text": "Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C.Cir.1990)); see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (in organizational-standing case, courts “conduct the same inquiry as in the case of an individual: Has the plaintiff alleged such a personal stake in The outcome of the controversy as to warrant his invocation of federal-court jurisdiction?” (quotation marks omitted)). The key issue is whether PETA has suffered a “concrete and demonstrable injury to [its] activities,” mindful that, under our precedent, “a mere setback to [PETA’s] abstract social interests is not sufficient.” Equal Rights Ctr., 633 F.3d at 1138 (quotation marks omitted); see also Am. Legal Found. v. FCC, 808 F.2d 84, 92 (D.C.Cir.1987) (“The organization must allege that discrete programmatic concerns are being directly and adversely affected by the defendant’s actions.”). The United States Supreme Court has made plain that a “concrete and demonstrable injury to [an] organization’s activities — with the consequent drain on the organization’s resources — constitutes far more than simply a setback to the organization’s abstract social interests” and thus suffices for standing. Havens Realty Corp., 455 U.S. at 379, 102 S.Ct. 1114. We, in turn, have elaborated as to when an organization’s purported injury is not sufficiently concrete and demonstrable to invoke our jurisdiction. For example, “an organization’s diversion of resources to litigation or to investigation in anticipation of litigation is considered a ‘self-inflicted’ budgetary choice that cannot qualify as an injury in fact for purposes of standing.” Am. Soc. for Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d 13, 25 (D.C.Cir.2011); see also Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1434 (D.C.Cir.1995) (“An organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit.”). “Nor is standing found when the only ‘injury’ arises from the effect of the regulations on the organizations’ lobbying activities,” Ams. for Safe Access v. DEA 706 F.3d 438, 457 (D.C.Cir.) (quotation marks omitted), cert. denied, — U.S. -, 134 S.Ct. 267, 187 L.Ed.2d 151" }, { "docid": "9190483", "title": "", "text": "does not have any members, it may invoke only the former. To prevail, it must show the same three standing elements as any individual-(1) injury, (2) causation, and (3) redressability. The injury must be \" 'concrete and demonstrable ... with [a] consequent drain on [its] resources,' rather than 'simply a setback to [its] abstract social interests.' \" People for the Ethical Treatment of Animals, Inc. (PETA) v. U.S. Dep't of Agric., 7 F.Supp.3d 1, 8 (D.D.C. 2013) (quoting Nat'l Ass'n of Home Builders v. EPA, 667 F.3d 6, 11 (D.C. Cir. 2012) ) (alterations in original). It is here that CRS falters. Caselaw for organizational standing is not a model of clarity, but this Circuit has made clear that, at a minimum, the organization must \"allege 'that discrete programmatic concerns are being directly and adversely affected by' the [agency's] inaction,\" PETA, 7 F.Supp.3d at 8 (quoting Nat'l Taxpayers Union, Inc., v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995) ), not merely that the organization has had to increase spending on \"pure issue-advocacy\" or litigation. See Nat'l Ass'n of Home Builders, 667 F.3d at 12 (quoting Ctr. for Law & Educ. v. Dep't of Educ., 396 F.3d 1152, 1162 (D.C. Cir. 2005) ). To defeat a motion to dismiss, an organization must substantiate its injury \"by affidavit or other specific evidence that a challenged statute or policy frustrates the organization's goals and requires the organization to expend resources ... [it] otherwise would spend in other ways.\" Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 943 (9th Cir. 2011) (internal quotation marks and citation omitted). In other words, although a plaintiff need not prove facts to defeat a motion to dismiss, it must allege some facts that, if true, would establish standing. See Lujan, 504 U.S. at 561, 112 S.Ct. 2130 ; Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). CRS alleges that it has standing here \"because the interests at stake are germane to [its] purposes, and FDA's response will require further extensive advocacy work on [its] part ... [,] placing" }, { "docid": "7650782", "title": "", "text": "party with standing is sufficient to satisfy Article Ill’s case-or-controversy requirement.”). Because I believe Krawitz lacks standing, I must consider the other petitioners’ standing. B. Other Petitioners’ Standing ASA’s Organizational Standing In their opening brief, the petitioners asserted that ASA has standing as an organization because it must expend “significant resources combatting the DEA’s positions respecting marijuana’s medical use and abuse potential, which would be redressed by a favorable decision.” Pet’rs’ Opening Br. 6. In their reply brief, they argue “ASA has been unable to employ a full-time California Director to interface with government agencies in California and those of other medical marijuana states to implement state law, in particular, the regulation of medical marijuana dispensaries.” Pet’rs’ Reply Br. 3 (citing Sherer Supp. Aff. ¶ 2). An organization does not have standing based on a mere “ ‘setback to [its] abstract social interests.’ ” Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 11 (D.C.Cir. 2011) (quoting Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C.Cir.1995)). An association’s “self-serving observation that it has expended resources to educate its members and others regarding [a challenged statutory provision] does not present an injury in fact,” particularly if “[t]here is no evidence that [the challenged provision] has subjected [the association] to operational costs beyond those normally expended to review, challenge, and educate the public.” Nat’l Taxpayers Union, 68 F.3d at 1434. Nor is standing found “when the only ‘injury’ arises from the effect of the regulations on the organizations’ lobbying activities.” Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1161 (D.C.Cir.2005). The petitioners support ASA’s organizational standing by relying on Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982). In Havens, a nonprofit corporation sued the owner of an apartment complex for damages under the Fair Housing Act because “the [discriminatory] practices of [the apartment complex] had frustrated the organization’s counseling and referral services, with a consequent drain on resources.” Id. at 369, 102 S.Ct. 1114. The Supreme Court upheld the nonprofit’s standing because the “practices have perceptibly impaired" }, { "docid": "8788585", "title": "", "text": "Greater Washington, Inc., 28 F.3d at 1276. Additionally, in Humane Society v. U.S. Postal Service, one of my colleagues found that the Humane Society had established standing to challenge a decision of the postal service on the basis that the Humane Society was injured by the decision because it created “the need to care for animals on an emergency basis.” 609 F.Supp.2d 85, 91 (D.D.C.2009). Organizational plaintiffs, however, will not be able to establish the injury necessary for constitutional standing when it consists merely of the impact on its activities caused by their willful diversion of their resources in response to the defendants’ conduct. As our Circuit has explained: The [Havens ] Court did not base standing on the diversion of resources from one program to another, but rather on the alleged injury that the defendants’ actions themselves had inflicted upon the organization’s programs. To be sure, the Court did mention the “drain on the organization’s resources.” Yet this drain apparently sprang from the organization’s need to “counteract” the defendants’ assuredly illegal practices, and thus was simply another manifestation of the injury that those practices had inflicted.... Fair Employment Council of Greater Washington, 28 F.3d at 1277 (emphasis added). “The mere fact that an organization redirects some of its resources to litigation and legal counseling in response to actions or inactions of another party is insufficient to impart standing upon the organization.” Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1434 (D.C.Cir.1995) (quoted in parenthetical, quoted citation omitted). In fact, our Circuit Court “explicitly rejected] [a plaintiffs] suggestion that the mere expense of testing [a defendant] constitutes ‘injury in fact’ fairly traceable to [the defendant’s] conduct.” Fair Employment Council of Greater Washington, 28 F.3d at 1276. Any injury from such testing is not traceable to the defendant’s conduct, but “self-inflicted; it results not from any actions taken by [the defendant], but rather from the [plaintiffs] own budgetary choices.” Id. (emphasis added). While ERC broadly alleges Post’s actions “directly interfered with the ERC’s existing counseling, education, and advocacy programs and activities,” (Pl.’s Opp’n at 25), discovery has revealed that" }, { "docid": "6184257", "title": "", "text": "quotation marks omitted). However, “we do not assume the truth of legal conclusions, nor do we accept inferences that are unsupported by the facts set out in the complaint.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C.Cir.2015) (citations and internal quotation marks omitted). Furthermore, “ ‘[w]hen considering any chain of allegations for standing purposes, we may reject as overly speculative those links which are predictions of future events (especially future actions to be taken by third parties).’ ” Id. at 21 (quoting United Transp. Union v. ICC, 891 F.2d 908, 913 (D.C.Cir.1989)). In determining standing, we may consider materials outside of the complaint. See Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198 (D.C.Cir.2003). Applying this standard, we review standing de novo. Equal Rights Ctr. v. Post Props., Inc., 633 F.3d 1136, 1138 (D.C.Cir.2011). III. Plaintiffs first contend that the Individual Plaintiffs, Sowerwine and Foran, have alleged an injury in fact. Plaintiffs also submit that FWW would have associational standing on behalf of its members. See, e.g., Sierra Club v. EPA 754 F.3d 995, 999 (D.C.Cir.2014) (explaining that associational standing requires an organization to show, among other things, that “at least one of [the organization’s] members would have standing to sue”). Because the analyses for both the Individual Plaintiffs and FWW’s members are identical, see id., we address them jointly here. For the Individual Plaintiffs or FWW’s individual members to establish standing, they must show (i) they have “suffered a concrete and particularized injury in fact, (ii) that was caused by or is fairly traceable to the actions of the defendant, and (iii) is capable of resolution and likely to be redressed by judicial decision.” Osborn v. Visa, 797 F.3d 1057, 1063 (D.C.Cir.2015) (internal quotation marks omitted). Here, because Plaintiffs are not directly subjected to the regulation they challenge, “standing is ‘substantially more difficult to establish.’ ” Public Citizen, Inc. v. Nat’l Highway Traffic Safety Admin. (Public Citizen I), 489 F.3d 1279, 1289 (D.C.Cir.2007) (citing Defs. of Wildlife, 504 U.S. at 562, 112 S.Ct. 2130). In order to have suffered an injury in fact, Plaintiffs must have suffered an" }, { "docid": "10144434", "title": "", "text": "208 is directed at individual privacy, which is not at stake for EPIC. 2. Organizational injury For similar reasons, EPIC has suffered no organizational injury. Under Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982), “an organization may establish Article III standing if it can show that the defendant’s' actions cause a ‘concrete and demonstrable injury to the organization's activities’ that is ‘more than simply a setback to the organization’s abstract social interests.’” Feld, 659 F.3d at 25 (quoting Havens, 455 U.S. at 379, 102 S.Ct. 1114). “Our case law, however, establishes two important limitations on the scope of standing under Havens.” Id. First, the plaintiff must show that the defendant’s “action or omission, to act injured the organization’s interest.” People for the Ethical. Treatment of Animals v. USDA, 797 F.3d 1087, 1094 (D.C. Cir. 2015) (PETA) (internal quotation and brackets omitted). Second, the plaintiff must show that it “used its resources to counteract that harm.” Id. (internal quotation omitted). EPIC’s assertion of organizational standing fails twice over. EPIC’s sole theory of organizational injury is that the defendants’ failure to produce a privacy impact assessment injures its interest in using the information contained in the assessment “to focus public attention .on emerging privacy and civil liberties issues.” Appellant’s Reply Br. 5 (internal quotation omitted). As we have discussed, however, section 208 of the E-Government Act does not confer any such informational interest on EPIC. EPIC cannot ground organizational injury on a non-existent interest. See Feld, 659 F.3d at 24-25 (abstract social interest does not give rise to organizational injury). It follows that any resources EPIC used to counteract the lack of a privacy impact assessment—an assessment in which it has no cognizable interest—were “a self-inflicted budgetary choice that cannot qualify as an injury in fact.” Feld, 659- F.3d at 25 (internal quotation omitted). EPIC’s evidence of expenditures only reinforces the point. It relies exclusively on the declaration of an EPIC “Law Fellow” who before and during this lawsuit submitted Freedom of Information Act (FOIA) requests to (inter alia), the Commission and the Department of" }, { "docid": "18242156", "title": "", "text": "a ‘personal injury fairly traceable to the [opposing party’s] allegedly unlawful conduct and likely to be redressed by the requested relief.’ ” Id. (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (alteration in Allen)). We conclude that NAHB has not demonstrated an injury in fact traceable to the TNW Determination to establish standing — either in its own right or on behalf of its members. A. Organizational Standing To establish organizational standing, NAHB must “allege[ ] such a ‘personal stake’ in the outcome of the controversy as to warrant the invocation of federal-court jurisdiction”; that is, it must demonstrate that it has “ ‘suffered injury in fact,’ including ‘[s]uch concrete and demonstrable injury to the organization’s activities — with [a] consequent drain on the organization’s resources — constituting] ... more than simply a setback to the organization’s abstract social interests.’ ” Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C.Cir.1995) (quoting Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)). This NAHB has not done. NAHB alleges it has “spent considerable staff time and monetary resources in the quest to clarify CWA jurisdiction,” such as submitting comments to the EPA and to the Corps, testifying before the United States Senate and participating in “numerous court cases,” including this one. Compl. ¶ 21; Decl. of Thomas J. Ward, NAHB Vice President of Litig. & Legal Servs. ¶¶ 8, 17-19 (filed Feb. 4, 2010) (Ward Decl.). But these claims do not suffice. First, this litigation’s expenses do not qualify as an injury in fact. See Spann v. Colonial Village, Inc., 899 F.2d 24, 27 (D.C.Cir.1990) (“An organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit.”). As for the other expenditures claimed, NAHB has not shown they were for “operational costs beyond those normally expended” to carry out its advocacy mission. Nat’l Taxpayers Union, 68 F.3d at 1434 (association’s “self-serving observation that it has expended resources to educate its members and others regarding [challenged" }, { "docid": "17997604", "title": "", "text": "to the organization’s abstract social interests” and thus suffices for standing. Havens Realty Corp., 455 U.S. at 379, 102 S.Ct. 1114. We, in turn, have elaborated as to when an organization’s purported injury is not sufficiently concrete and demonstrable to invoke our jurisdiction. For example, “an organization’s diversion of resources to litigation or to investigation in anticipation of litigation is considered a ‘self-inflicted’ budgetary choice that cannot qualify as an injury in fact for purposes of standing.” Am. Soc. for Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d 13, 25 (D.C.Cir.2011); see also Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1434 (D.C.Cir.1995) (“An organization cannot, of course, manufacture the injury necessary to maintain a suit from its expenditure of resources on that very suit.”). “Nor is standing found when the only ‘injury’ arises from the effect of the regulations on the organizations’ lobbying activities,” Ams. for Safe Access v. DEA 706 F.3d 438, 457 (D.C.Cir.) (quotation marks omitted), cert. denied, — U.S. -, 134 S.Ct. 267, 187 L.Ed.2d 151 (2013), and cert. denied sub nom. Olsen v. Drug Enforcement Admin., — U.S. -, 134 S.Ct. 673, 187 L.Ed.2d 422 (2013), or when the “ ‘service’ impaired is pure issue-advocacy,” Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1162 (D.C.Cir.2005). To determine whether an organization’s injury is “concrete and demonstrable” or merely a “setback” to its “abstract social interests,” Havens Realty Corp., 455 U.S. at 379, 102 S.Ct. 1114 we ask, first, whether the agency’s action or omission to act “injured the [organization’s] interest” and, second, whether the organization “used its resources to counteract that harm.” Equal Rights Ctr., 633 F.3d at 1140. PETA’s mission is to prevent “cruelty and inhumane treatment of animals.” Compl. ¶ 5. It accomplishes this goal through “public education, cruelty investigations, research, animal rescue, legislation, special events, celebrity involvement, and protest campaigns.” Id. One of the “primary” ways in which PETA accomplishes its mission is “educating the public” by providing “information about the conditions of animals held by particular exhibitors.” Jeffrey S. Kerr Decl. ¶ 16" }, { "docid": "3527856", "title": "", "text": "costs into an injury in fact,” unless the government’s actions have required the organization to expend resources to pursue its mission. See Nat’l Taxpayers Union v. U.S., 68 F.3d 1428, 1434 (D.C.Cir.1995) (holding that where organization was dedicated to promoting fair and legal revenue-raising by the U.S. government, the group’s decision to challenge the legality of a tax provision did not constitute injury in fact, it was simply an ordinary program cost); see also Humane Society of the U.S. v. Vilsack, 19 F.Supp.3d 24, 46 (D.D.C.2013) (holding that where spending funds to counteract unfavorable legislation was a normal party of the Humane Society’s mission and operations, “being prompted to do it can hardly qualify as an injury that confers constitutional standing”); id. (“[T]he fact that they have decided to redirect some of their resources from one legislative agenda to another is insufficient to give them standing.”). As the Norlen declaration explains, Pacific Environment has been advocating to reform and strengthen the Bank’s environmental regulations since 1997. Norlen Deck ¶¶ 6, 7. It thus appears that advo-eating for stronger environmental requirements for the Bank is an “ordinary program cost” for Pacific Environment and not a response to or consequence of the Bank’s authorization of the loan guarantee in question. See Nat’l Ass’n of Home Builders v. EPA, 667 F.3d 6, 12 (D.C.Cir.2011) (“As for the other expenditures claimed, [plaintiff] has not shown they were for ‘operational costs beyond those normally expended’ to carry out its advocacy mission.”); Conservative Baptist Ass’n of Am., Inc. v. Shinseki, No. 13-cv-1762, 42 F.Supp.3d 125, 132, 2014 WL 2001045, at *5 (D.D.C. May 16, 2014) (“Any resources that [plaintiff] expended ... were in the normal course of [the organization’s] operations, and it cannot convert its ordinary activities and expenditures ... into an injury-in-fact.”); Elec. Privacy Info. Ctr. v. U.S. Dep’t of Educ., No. 12-ev-0327, 48 F.Supp.3d 1, 24, 2014 WL 449031, at *16 (D.D.C. Feb. 5, 2014) (“[Plaintiff] cannot convert an ordinary program cost — advocating for and educating about its interests — into an injury in fact.”). Also missing from the Norlen declaration is any" }, { "docid": "3527868", "title": "", "text": "of mere frustration of an organization’s objectives. Ctr. for Law & Educ., 396 F.3d at 1161. But see ASPCA 659 F.3d at 27 (declining to decide whether injury to an organization’s advocacy efforts was sufficient injury for Havens standing when plaintiff failed to establish causation). Second, CIEL has failed to provide sufficient facts that would allow the Court to find that the organization’s expenditures on monitoring Bank policy are a consequence of the Bank’s decision and not an ordinary program cost or self-inflicted harm. In National Treasury Employees Union, the D.C. Circuit explained that although a court must accept as true an allegation that an organization has expended resources, “there is a difference between accepting a plaintiffs allegations of fact as true and accepting as correct the conclusions plaintiffs would draw from such facts.” 101 F.3d at 1430. For that reason, the court held that while it would accept the organization’s assertion that it spent additional funds on lobbying in response to the defendant’s action, it would not accept the plaintiffs “speculative conclusion that such expenditures are a necessary link in achieving the organization’s ultimate purpose.” Id. (granting defendant’s motion to dismiss organization’s suit due to lack of Article III standing); see also Nat’l Taxpayers Union, 68 F.3d at 1434 (holding that organization’s “self-serving observation that it has expended resources to educate its members and others regarding [challenged statutory provision] does not present an injury in fact”). In this case, the Johl declaration asserts that the Bank’s decision “has required CIEL to put extra time and resources into monitoring Ex-Im Bank’s policies.” Johl Decl. ¶ 9. But she does not so much as allege that CIEL’s increased monitoring of the Bank’s policies is necessary to achieve the organization’s ultimate purpose. Cf. Nat’l Treasury Emps. Union, 101 F.3d at 1430. Additionally, like Pacific Environment, CIEL makes no mention of when the asserted dedication of time and resources occurred despite the fact that roughly two and a half years have passed since the loan guarantee was approved. Cf. Equal Rights Ctr., 633 F.3d at 1141-42 (holding that at the summary judgment stage," } ]

[ { "docid": "6405885", "title": "", "text": "discretion in awarding Subaru $89,032.29 in costs and fees. The court scrutinized- the time sheets submitted by Subaru’s attorneys and determined that only 70% of the work could properly be characterized as “trial preparation.” The court therefore awarded Subaru 70% of its requested fee amount. This was a proper use of the court’s discretion, and we therefore uphold the fee award entered in LeBlang I. B. Involuntary Dismissal of LeBlang II 1. Jurisdiction Before addressing the merits, we must first determine whether we have jurisdiction to hear this appeal. Under 28 U.S.C. § 1291, courts of appeals are empowered to hear appeals from “final decisions” of a district court. The question before us then is whether the district court’s involuntary dismissal of LeBlang II was a “final decision.” If the dismissal was without prejudice, then it was not a “final decision” unless LeBlang could not file another complaint. See Ordower v. Feldman, 826 F.2d 1569, 1572 (7th Cir.1987). On the other hand, if the dismissal acts as an adjudication on the merits, then the dismissal is a “final decision,” and we have jurisdiction. In dismissing LeBlang II, the district court did not state whether the dismissal was with or without prejudice. It stated only that “Defendant’s motion for ‘involuntary dismissal of plaintiffs’ claims’ is granted” and that “this action is dismissed pursuant to Fed.R.Civ.P. 41(b).” Order, LeBlang Motors, Ltd., No. 96 C 7681 (N.D.Ill. March 25, 1997). For reasons we do not understand, Subaru moved for involuntary dismissal of LeBlang II without prejudice. Because the court granted Subaru’s motion, one could argue that the resulting dismissal was without prejudice. However, Fed.R.Civ.P. 41(b), the Rule pursuant to which the court dismissed LeBlang II, states in pertinent part: “Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision ... operates as an adjudication upon the merits.” Because the district court did not “otherwise specify” in its order, we treat the dismissal as an adjudication upon the merits. The dismissal thus acts as a final decision, and we have jurisdiction under § 1291 to hear this appeal. 2." } ]

[ { "docid": "16293618", "title": "", "text": "the trial court asking for relief from the summary judgment decision. The court denied this motion, stating that the decision was not a final judgment for purposes of Rule 60(b), and therefore premature. The district court added that the “tired claims of fraud” argued as reason for relief were not new evidence and did not present exceptional circumstances warranting relief. If more than one claim is presented in a lawsuit, a court may enter final judgment as to fewer than all of the claims if the court determines that no just reason for delay exists. Fed.R.Civ.P. 54(b). That determination must be expressly stated by the court or the decision will be subject to revision until another decision adjudicating all the claims, rights, and liabilities of the parties has been made. Id. Therefore, without 54(b) certification, an order will not be final unless it ends the litigation and leaves nothing to be decided in the district court. United States v. Ettrick Wood Products, Inc., 916 F.2d 1211, 1216 (7th Cir.1990). Here, not , only did the district court not make the necessary findings, it made no mention of Rule 54(b), and in a later order specifically stated that the summary judgment order was not a final order. Therefore, denial of the motion was appropriate because the order at issue was not final. The appellants also argue (but do not include in their “Statement of Issues”) that the district court erred by denying their motion to join as a party the FBI Records Management Division pursuant to Fed.R.Civ.P. 19. The appellants sought to invoke Rule 19 joinder because “in the person’s absence complete relief cannot be accorded among those already parties.” Fed. R.Civ.P. 19(a)(1). They argue that the documents referred to the FBI for disclosure advice will not be reached by the existing action. They are incorrect. Once a FOIA request has been made to an agency, that agency’s referral to a different agency regarding disclosure does not divest the origi nal agency of responsibility to respond to the FOIA request. “All records in an agency’s possession, whether created by the agency" }, { "docid": "7841922", "title": "", "text": "54(b). Rule 54(b), however, empowers a district court to “direct entry of a final judgment as to one or more, but fewer than all, claims or parties,” but only if the court “expressly determines that there is no just reason for delay,” Fed.R.Civ.P. 54(b), a process commonly referred to as “certification.” See, e.g., Parish v. City of Elkhart, 614 F.3d 677, 679 n. 2 (7th Cir.2010). The Supreme Court has established that in addition to the absence of any reason for delay, a certifiable claim must be separable from the remaining claims in the litigation and the decision entered as to those claims must meet the definition of finality under § 1291 — meaning there is nothing left to be decided by the district court as to the certified claims — in order for a Rule 54(b) ruling to be proper. See ODC Communications Corp. v. Wenruth Investments, 826 F.2d 509, 511-12 (7th Cir.1987) (citing Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 7-8, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980)). Marriott argues that § 1291 and Rule 54(b), in concert with the requirements of Fed.RApp.P. Rule 4(a)(1) (“Rule 4(a)(1)”), clearly prevent this court from exercising jurisdiction over this appeal. Rule 4(a)(1) requires that an appellant file a notice of appeal within 30 days of the judgment from which that party is appealing. Marriott correctly asserts that when the district court dismissed appellants’ claims on November 10, 2009, the entire case was not terminated, since there were remaining plaintiffs litigating their claims. Those plaintiffs continue to litigate to this day. Thus, the district court’s November 10th decision, which was not accompanied by a Rule 54(b) judgment, was not a final judgment under § 1291 and was not immediately appealable. See Ettrick Wood Prods., 916 F.2d at 1217 (“Absent proper entry of judgment under Rule 54(b), an order that determines one claim in a multiclaim case, or disposes of all claims against one or more parties in a multi-party case, is not final and appealable.”). Appellants’ December 10th notice of appeal was therefore premature, since it was filed as a" }, { "docid": "867527", "title": "", "text": "district court agreed, that Chessie had never made that argument before and that the argument was therefore forfeited. The cojirt granted summary judgment against Ches-sie’s negligence per se claim. Krinos dismissed its counterclaims without prejiidicé, and Chessie appealed. II. Analysis A. Appellate Jurisdiction Before addressing the parties’ merits arguments, we pause to consider our jurisdiction. The only route to appellate jurisdiction in this case runs through 28 U.S.C, § 1291, which gives us-jurisdiction over appeals from district courts’ “final decisions.” With certain exceptions :not relevant here, a decision is final if it “disposes .-of all claims against all parties.” Dale v. Lappin, 376 F.3d 652, 654 (7th Cir. 2004), Claims dismissed without prejudice have not been disposed of, and any resulting judgment -is not final -unless there is a clear legal bar to the claim’s revival. First Health Group Corp. v. BCE Emergis Corp., 269 F.3d 800, 801 (7th\" Cir. 2001) (“[Dismissal of one claim or theory without prejudice ... makes the judgment non-final.”); Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002) (dismissal without prejudice i for failure to exhaust prison grievance system’s remedies was final because plaintiff was no longer a prisoner and could not access that system). .Krinos voluntarily dismissed its counterclaims without prejudice in the district court. If the story ended there, we would, not have jurisdiction. India Breweries, Inc. v. Miller Brewing Co., 612 F.3d 651, 657 (7th Cir. 2010); ITOFCA, Inc. v. MegaTrans Logistics, Inc., 235 F.3d 360, 363 (7th Cir. 2000). “The finality rule is only rarely a ‘Swiss cheese.’- ” India Breweries, 612 F.3d at 657, quoting Chang v. Baxter Healthcare Corp., 599 F.3d 728, 732 (7th Cir. 2010), But this appeal “managed to wedge through - one of its narrowest holes” when Krinos, during oral argument, unequivocally agreed that its counterclaims should be deemed dismissed with prejudice. See id. Accordingly, we have jurisdiction over Chessie’s appeal and proceed to the merits. Chessie raises two questions: whether 49 U.S.C. § 10903 creates a private right of action, and whether it forfeited its negligence per se claim. We agree with Krinos and" }, { "docid": "7841921", "title": "", "text": "decide this appeal in the first place. Whether we have jurisdiction depends on the interaction between three statutory rules: Congress’ conferral of jurisdiction on this court under § 1291, Rule 54(b) of the Federal Rules of Civil Procedure (“Rule 54(b)”), and Rule 4(a) of the Federal Rules of Appellate Procedure (“Rule 4(a)”). To start, § 1291 generally limits our jurisdiction to the review of only “final decisions” of the federal district courts. See Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 760 F.2d 177, 180 (7th Cir.1985); 28 U.S.C. § 1291. Decisions are final when they “end[ ] the litigation and leave[ ] nothing to be decided in the district court.” United States v. Ettrick Wood Prods., Inc. 916 F.2d 1211, 1216 (7th Cir.1990). Generally, if an action involves either multiple parties or one party with multiple claims, the dismissal of some but not all of the parties or claims is not immediately appealable; the parties or claims that still exist prevent the order from being “final.” Id. at 1216-17; Fed.R.Civ.P. Rule 54(b). Rule 54(b), however, empowers a district court to “direct entry of a final judgment as to one or more, but fewer than all, claims or parties,” but only if the court “expressly determines that there is no just reason for delay,” Fed.R.Civ.P. 54(b), a process commonly referred to as “certification.” See, e.g., Parish v. City of Elkhart, 614 F.3d 677, 679 n. 2 (7th Cir.2010). The Supreme Court has established that in addition to the absence of any reason for delay, a certifiable claim must be separable from the remaining claims in the litigation and the decision entered as to those claims must meet the definition of finality under § 1291 — meaning there is nothing left to be decided by the district court as to the certified claims — in order for a Rule 54(b) ruling to be proper. See ODC Communications Corp. v. Wenruth Investments, 826 F.2d 509, 511-12 (7th Cir.1987) (citing Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 7-8, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980)). Marriott argues that" }, { "docid": "15343528", "title": "", "text": "The district court rejected the Union’s argument that the 90-day statute of limitations to challenge an arbitration award applied to Calumet’s claims. The court also rejected the Union’s attempt to rely on the arbitrator’s alter ego finding to show that Calumet had been a party through Selvick Marine. The Union had offered no basis apart from the arbitrator’s conclusion to support an alter ego finding, so the court concluded that it had no basis to enforce against Calumet in this action the arbitrator’s finding that Calumet and Selvick Marine were alter egos. Finally, the district court rejected the Union’s argument that the Norris-LaGuardia Act, 29 U.S.C. § 101 et seq., prohibited injunctive relief in the case. For these reasons, the court granted Calumet’s motion, denied the Union’s motion, and dismissed the Union’s counterclaims. The court did not, however, enter a separate judgment pursuant to Federal Rule of Civil Procedure 58. On September 30, 2015, the Union filed a notice of appeal. II. Appellate Jurisdiction Before addressing the merits of the appeal, we must be sure we have appellate jurisdiction. The Union contends it has appealed a final decision under 28 U.S.C. § 1291. Generally, an order is final for appeal purposes under § 1291 “if it ends the litigation and leaves nothing to be decided in the district court.” United States v. Ettrick Wood Products, Inc., 916 F.2d 1211, 1216 (7th Cir. 1990). The question of appellate jurisdiction arose because the district court issued a memorandum opinion on the motions but did not enter a separate judgment under Federal Rule of Civil Procedure 58(a), which requires that a judgment be “set out in a separate document.” “The grant of a motion for summary judgment is not one of the exceptions to the separate document requirement listed in Rule 58(a), so a separate document was required in this case to have a proper Rule 58 judgment.” Perry v. Sheet Metal Workers’ Local No. 73 Pension Fund, 585 F.3d 358, 361 (7th Cir. 2009); see also Alpine State Bank v. Ohio Casualty Insurance Co., 941 F.2d 554, 558 (7th Cir. 1991) (“In" }, { "docid": "6663529", "title": "", "text": "failure to pay the Shutdown Agreement’s wage supplements violated the Illinois Wage Act. In their second claim, plaintiffs allege that defendants violated their fiduciary duty under ERISA by failing to notify plaintiffs of the likely termination of the OMC Health Plan and by failing to fund the plan. This appeal follows the district court’s order dismissing the ERISA claim and remanding the Illinois Wage Act claim. II. Discussion A. Appellate Jurisdiction We first must decide whether we have appellate jurisdiction over the parties’ cross-appeals. The only challenge to our jurisdiction comes from plaintiffs-appellants who assert that 28 U.S.C. § 1447(d) precludes the exercise of appellate jurisdiction over defendants’ cross-appeal of the remand of the Illinois Wage Act claim. Nevertheless, we have an independent duty to determine that jurisdiction exists before we can proceed to the merits of either appeal. See ITOFCA, Inc. v. Mega-Trans Logistics, Inc., 235 F.3d 360, 363 (7th Cir.2000). Our general appellate jurisdiction derives from 28 U.S.C. § 1291, which provides in relevant part: “The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States.” ‘Whether a decision is final for purposes of § 1291 generally depends on whether the decision by the district court ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” ITOF-CA, 235 F.3d at 363 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). The “final decision” requirement of § 1291 restricts piecemeal appeals. See id. Ordinarily, a party is precluded from appealing a district court’s order resolving some but not all of the claims in a case. See United States v. Ettrick Wood Prods., Inc., 916 F.2d 1211, 1217 (7th Cir.1990). Where, however, a district court has resolved all federal claims and has remanded the remaining claims to state court, we have appellate jurisdiction to review the federal claims, the district court having nothing of the matter left on its docket. See, e.g., Hileman v. Maze, 367 F.3d 694, 696 (7th Cir.2004) (reviewing" }, { "docid": "7841920", "title": "", "text": "judgment pursuant to Fed.R.Civ.P. Rule 54(b) and 58(d). The next day — the due date for the Jurisdictional Memorandum — appellants filed a motion entitled “Routine Motion For An Extension of Time to File Jurisdictional Memorandum,” which was granted. On January 7, 2011, the district court granted appellants’ Rule 54(b) motion, finding that appellants’ claims are separate from the claims of the remaining plaintiffs, the decision dismissing appellants’ claims is final, and there is no just reason for delay. A final judgment was therefore entered. Appellants subsequently filed their Jurisdictional Memorandum with this court, which advised the court of the case’s procedural history and concluded that the district court’s Rule 54(b) motion rendered the jurisdictional question moot. The next day, this court issued an order stating, “On consideration of the ‘JURISDICTIONAL STATEMENT’ filed by plaintiffs-appellants on January 11, 2011, IT IS ORDERED that briefing will proceed.” II. Discussion A. Jurisdiction Before we turn to the relatively straight forward matter of the propriety of appellants’ dismissal, we must address Marriott’s assertion that we lack jurisdiction to decide this appeal in the first place. Whether we have jurisdiction depends on the interaction between three statutory rules: Congress’ conferral of jurisdiction on this court under § 1291, Rule 54(b) of the Federal Rules of Civil Procedure (“Rule 54(b)”), and Rule 4(a) of the Federal Rules of Appellate Procedure (“Rule 4(a)”). To start, § 1291 generally limits our jurisdiction to the review of only “final decisions” of the federal district courts. See Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 760 F.2d 177, 180 (7th Cir.1985); 28 U.S.C. § 1291. Decisions are final when they “end[ ] the litigation and leave[ ] nothing to be decided in the district court.” United States v. Ettrick Wood Prods., Inc. 916 F.2d 1211, 1216 (7th Cir.1990). Generally, if an action involves either multiple parties or one party with multiple claims, the dismissal of some but not all of the parties or claims is not immediately appealable; the parties or claims that still exist prevent the order from being “final.” Id. at 1216-17; Fed.R.Civ.P. Rule" }, { "docid": "7479941", "title": "", "text": "States v. Ettrick Wood Products, Inc., 916 F.2d 1211, 1217 (7th Cir.1990) (“Absent proper entry of judgment under Rule 54(b), an order that determines one claim in a multi-claim case, or disposes of all claims against one or more parties in a multiparty case, is not final and appeal-able.”). And as we have noted in the past, “bending the rules to provide jurisdiction is not a move to be undertaken lightly.” West, 197 F.3d at 1189. At oral argument, when we raised the possibility that the dismissal without prejudice might mean that there has been no final decision for § 1291 purposes, we asked MegaTrans’ attorney whether the company would represent to the Court that it would not refile its counterclaims. Had MegaTrans done so, we could have treated the district court’s dismissal of the counterclaims as having been with prejudice, thus winding up the litigation and eliminating the bar to our jurisdiction. See JTC Petroleum, 190 F.3d at 776-77 (7th Cir.1999). However, MegaTrans was unwilling to make any such representation and thus we cannot proceed to the merits of ITOFCA’s appeal. III. CONCLUSION Even assuming as we do that Mega-Trans has no immediate plans to refile its counterclaims, the present resolution is at best a contingent one. If we were to affirm the district court’s grant of summary judgment to MegaTrans, that would in all likelihood put an end' to this litigation, as MegaTrans would have no incentive to pursue its counterclaims. During oral arguments, MegaTrans conceded as much. “[B]ut if we reverse the parties will continue to litigate their dispute.” Union Oil, 121 F.3d at 309. Assuming we decided to remand this case to the district court, there would be no reason why Me-gaTrans would not wish to reinstate its counterclaims and present them before the trier of fact. Certainly, the district court, in dismissing those counterclaims without prejudice, envisioned such a possibility. As we have stated, “the fact that the court of appeals could end the litigation does not make a decision on a single issue final.” Massey Ferguson Div. of Varity Corp. v. Gurley, 51 F.3d" }, { "docid": "15343529", "title": "", "text": "we have appellate jurisdiction. The Union contends it has appealed a final decision under 28 U.S.C. § 1291. Generally, an order is final for appeal purposes under § 1291 “if it ends the litigation and leaves nothing to be decided in the district court.” United States v. Ettrick Wood Products, Inc., 916 F.2d 1211, 1216 (7th Cir. 1990). The question of appellate jurisdiction arose because the district court issued a memorandum opinion on the motions but did not enter a separate judgment under Federal Rule of Civil Procedure 58(a), which requires that a judgment be “set out in a separate document.” “The grant of a motion for summary judgment is not one of the exceptions to the separate document requirement listed in Rule 58(a), so a separate document was required in this case to have a proper Rule 58 judgment.” Perry v. Sheet Metal Workers’ Local No. 73 Pension Fund, 585 F.3d 358, 361 (7th Cir. 2009); see also Alpine State Bank v. Ohio Casualty Insurance Co., 941 F.2d 554, 558 (7th Cir. 1991) (“In satisfying the requirement of Rule 58, neither the memorandum opinion explaining the ruling on summary judgment, nor the minute order announcing the summary judgment can be substituted for a declaratory judgment.”). And although Calumet had sought injunctive as well as declaratory relief, the court issued no separate injunction or declaration of rights following the memorandum opinion. At oral argument, we asked for supplemental briefs on appellate jurisdiction. The responses satisfy us that we have jurisdiction over this appeal. First, the district court’s failure to enter a separate Rule 58 judgment is not always decisive. Compliance with Rule 58 makes appellate jurisdiction simpler for the parties and the courts, but we may still have jurisdiction if we “know from other sources” that there has been a final judgment. First Nat’l Bank of Chicago v. Comptroller of the Currency, 956 F.2d 1360, 1363 (7th Cir. 1992); see also Fed. R. App. P. 4(a)(7)(B) (“A failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58(a) does not" }, { "docid": "6663530", "title": "", "text": "of appeals from all final decisions of the district courts of the United States.” ‘Whether a decision is final for purposes of § 1291 generally depends on whether the decision by the district court ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” ITOF-CA, 235 F.3d at 363 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). The “final decision” requirement of § 1291 restricts piecemeal appeals. See id. Ordinarily, a party is precluded from appealing a district court’s order resolving some but not all of the claims in a case. See United States v. Ettrick Wood Prods., Inc., 916 F.2d 1211, 1217 (7th Cir.1990). Where, however, a district court has resolved all federal claims and has remanded the remaining claims to state court, we have appellate jurisdiction to review the federal claims, the district court having nothing of the matter left on its docket. See, e.g., Hileman v. Maze, 367 F.3d 694, 696 (7th Cir.2004) (reviewing dismissal of federal claims where district court declined to retain jurisdiction over state-law claims); McCullah v. Gadert, 344 F.3d 655, 656 (7th Cir.2003) (same). The district court’s order dismissed plaintiffs’ ERISA claim and remanded the Illinois Wage Act claim, leaving it with nothing to do but enter judgment on the former. Accordingly, the dismissal of the ERISA claim is an appealable “final decision.” A remand order that marks the end of litigation in federal court, like the order issued in this case, is also a “final decision.” See Kircher v. Putnam Funds Trust, 373 F.3d 847, 848 (7th Cir.2004) (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-15, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996)). There is, however, an additional obstacle to appellate jurisdiction over remand orders. The general grant of appellate jurisdiction in 28 U.S.C. § 1291 is limited by § 1447(d), which states in relevant part: “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise.” Apart from a specific exception" }, { "docid": "7841923", "title": "", "text": "§ 1291 and Rule 54(b), in concert with the requirements of Fed.RApp.P. Rule 4(a)(1) (“Rule 4(a)(1)”), clearly prevent this court from exercising jurisdiction over this appeal. Rule 4(a)(1) requires that an appellant file a notice of appeal within 30 days of the judgment from which that party is appealing. Marriott correctly asserts that when the district court dismissed appellants’ claims on November 10, 2009, the entire case was not terminated, since there were remaining plaintiffs litigating their claims. Those plaintiffs continue to litigate to this day. Thus, the district court’s November 10th decision, which was not accompanied by a Rule 54(b) judgment, was not a final judgment under § 1291 and was not immediately appealable. See Ettrick Wood Prods., 916 F.2d at 1217 (“Absent proper entry of judgment under Rule 54(b), an order that determines one claim in a multiclaim case, or disposes of all claims against one or more parties in a multi-party case, is not final and appealable.”). Appellants’ December 10th notice of appeal was therefore premature, since it was filed as a challenge to the November 10th nonfinal order. The district court eventually granted appellants’ motion requesting a Rule 54(b) judgment on January 7, 2011, making the appellants’ dismissal both final and appealable under § 1291, but appellants did not file a new notice of appeal from the January 7th order. Instead, they rested on their December 10th notice of appeal from the November 10th nonfinal order. The question, then, is whether appellants’ original notice of appeal satisfies the federal appellate notice requirements under Rule 4(a)(1) despite the fact that appellants technically appealed from a nonfinal decision rather than the Rule 54(b) final judgment entered on January 7th. Appellants argue that this court’s jurisdiction is saved under Fed.RApp.P. Rule 4(a)(2). Rule 4(a)(2) provides, “A notice of appeal filed after the court announces a decision or order — but before the entry of the judgment or order — is treated as filed on the date of and after the entry.” Appellant argues that, for the purposes of Rule 4(a)(2), the district court announced its decision to dismiss appellants’" }, { "docid": "23350290", "title": "", "text": "motion outside of his presence. We conclude, however, that we lack jurisdiction to consider any of these arguments because the district court’s order was not final under 28 U.S.C. § 1291. The district court made it clear that the denial of Thompson’s Rule 41(g) motion was without prejudice and he was free to refile it; “[a] dismissal without prejudice is normally nonfinal because the plaintiff remains free to refile his case.” Mostly Memories, Inc. v. For Your Ease Only, Inc., 526 F.3d 1093, 1097 (7th Cir.2008). While “[i]n some instances ... a dismissal without prejudice may effectively end the litigation and thus constitute a final order for purposes of appellate review,” id, this is not one of those cases. The district judge indicated that the Rule 41(g) motion was premature and she wanted to wait until Thompson’s merits appeal was resolved before addressing the substance of the motion. The judge said she would “promptly decide” a new motion after Thompson’s merits appeal was decided. Accordingly, the court’s order was nonfinal and we lack jurisdiction over Thompson’s appeal. Thompson also maintains, however, that the district judge should have recused herself based on an appearance of bias. It is somewhat unclear from the record whether Thompson ever made this request in the district court; Thompson’s filings suggest that he raised the issue of bias and the court’s decision briefly addressed the issue. In denying Thompson’s Rule 41(g) motion as premature, the judge commented: “There is no basis for recusal and if [Thompson’s] suggestion [of bias] is intended as a motion, it is denied.” A challenge to a district court’s refusal to recuse may only be made by a petition for a writ of mandamus. Tezak v. United States, 256 F.3d 702, 717 n. 16 (7th Cir.2001). Although Thompson did not style his appeal as one seeking mandamus relief, we have previously said that an appeal of a denial of recusal should be construed as a petition for mandamus relief. United States v. City of Chicago, 870 F.2d 1256, 1259 (7th Cir.1989). Therefore, we will treat Thompson’s appeal as a petition for mandamus." }, { "docid": "18819414", "title": "", "text": "claims for “[i]f a district court’s dismissal leaves a plaintiff free to file an amended complaint, the dismissal is not considered a final appealable order.” Ordower v. Feldman, 826 F.2d 1569, 1572 (7th Cir.1987). See also Bastían v. Petren Resources Corp., 892 F.2d 680, 682 (7th Cir.), cert. denied, 496 U.S. 906, 110 S.Ct. 2590, 110 L.Ed.2d 270 (1990); Hatch v. Lane, 854 F.2d 981, 982 (7th Cir.1988) (per curiam). Moreover, despite the amendment, the factual allegations on which those claims were based remained in the complaint. WPC’s notice of appeal, while not referencing the August 1991 order, did state that appeal was being taken from the July-1992 order “granting defendants judgment dismissing plaintiffs complaint.” Ordinarily, an appeal from a final judgment brings up for review all previous orders entered in the case. Asset Allocation & Management Co. v. Western Employers Insurance Co., 892 F.2d 566, 569 (7th Cir.1989); United States v. Patel, 835 F.2d 708, 710 (7th Cir.1987). We conclude that, by appealing the order resulting in dismissal of the complaint and final judgment for the defendants, WPC sufficiently demonstrated its intention to appeal all orders previously issued by the district court. Rule 3(c) is broad enough to permit “an effective, although inept, attempt to appeal from the judgment sought to be” reversed. Foman, 371 U.S. at 181, 83 S.Ct. at 229. This is especially true where WPC was not free to appeal the dismissal of its misrepresentation claims before final judgment was entered on the contract claims. More important, though, Colgate and SoftSoap do not, and cannot, argue that they were prejudiced by the defect in WPC’s notice of appeal. The defendants fully briefed and argued the merits of the August 1991 order; there is no hint of unfair surprise. See Foman, 371 U.S. at 181, 83 S.Ct. at 229-30; Cook, 940 F.2d at 211; Management Computer Services, Inc. v. Hawkins, Ash, Baptie & Co., 883 F.2d 48, 49 n. 1 (7th Cir.1989); Duran v. Elrod, 713 F.2d 292, 295 (7th Cir.1983), cert. denied, 465 U.S. 1108, 104 S.Ct. 1615, 80 L.Ed.2d 143 (1984); Gooding v. Warner-Lambert Co.," }, { "docid": "5346339", "title": "", "text": "holder in due course of the checks Humphrey wrote to make those payments. The Bank now appeals the district court’s decision. II. Before discussing the merits of this case, we must consider a question concerning our jurisdiction. 28 U.S.C. § 1291 grants us appellate jurisdiction over final decisions of the district courts. The problem here is that early in the case, the district court dismissed Case’s fraud claim without prejudice. That is the last that has been heard of that claim; the district court’s final judgment, entered pursuant to Fed.R.Civ.P. 58, does not mention it. Normally, a dismissal without prejudice is not final. Ordower v. Feldman, 826 F.2d 1569, 1572 (7th Cir.1987). If that rule applies here, the fraud claim is still alive in the district court. If so, there is no final judgment in this case because a judgment that disposes of fewer than all the claims in a multiple-claim case is not final absent express direction of entry of judgment pursuant to Fed.R.Civ.P. 54(b) (a direction the district court did not make here). United States v. Ettrick Wood Products, Inc., 916 F.2d 1211, 1217 (7th Cir.1990) (per curiam). But despite the lack of a final judgment disposing of Case’s fraud claim, it is clear that the fraud claim has been finally decided. Case’s fraud claim charged that the Bank knew that or was reckless about whether Humphrey’s payments violated Case’s security interest. In its opinion granting the Bank’s motion for summary judgment on Case’s criminal conversion claim, the district court found that “[t]he evidence adduced by the plaintiffs [Case] simply fails to show that the Bank was on notice that [Hardy] was not meeting its obligations to the plaintiffs and that the Bank was getting money to which it allegedly was not entitled.” After trial, the court found that the Bank had not approached Humphrey to extract expedited payments and that the Bank did not know that Humphrey was paying it with Case’s money. The court did not award judgment to Case because of any bad intent by the Bank; instead, the Bank was liable only because the" }, { "docid": "8388555", "title": "", "text": "“[b]y referring to the final order the [appellants] present the whole case to us on appeal.” Glass v. Dachel, 2 F.3d 733, 738 (7th Cir.1993). See also Badger Pharmacal, Inc. v. Colgate-Palmolive Co., 1 F.3d 621, 626 (7th Cir.1993) (“Ordinarily, an appeal from a final judgment brings up all previous orders entered in the case.”); Matter of Grabill Corp., 983 F.2d 773, 775 (7th Cir.1993) (holding that an appeal from an order denying a motion for reconsideration under Bankr.R. 8015 brings up for review all orders previously rendered by the court below); Chaka v. Lane, 894 F.2d 923, 925 (7th Cir.1990) (“Because the single final judgment incorporates earlier interlocutory decisions, any notice of appeal necessarily brings up the case_”); Matter of Kilgus, 811 F.2d 1112, 1115 (7th Cir.1987) (“An appeal from the final judgment brings up all antecedent issues.”). The cases cited by Peachtree are not persuasive authority to the contrary. Leahy v. Bd. of Trustees of Community College Dist. No. 508, 912 F.2d 917, 923 (7th Cir.1990), is accurately cited by Peachtree for the proposition that the specificity required by Fed.R.App.P. 3(c), which is roughly analogous to Fed.R.Bankr.P. 8001(a), “is a jurisdictional prerequisite.” While this general proposition is unquestionably true, it has little bearing on this case because Glass, Badger Pharmacol, Chaka and the other cases cited above teach that the identification of a final order serves to identify all interlocutory orders for purposes of satisfying the Rule. Moreover, Leahy is inapposite on its facts insofar as it did not even involve an interlocutory order; instead, it involved the failure to specify that in addition to appealing the final judgment on the merits of the case, an appeal was also being taken from an order imposing sanctions. The Seventh Circuit held that the failure to identify the sanction order in the notice of appeal precluded its consideration, noting “[t]he decision on the merits and on the award of attorney’s fees were separate judgments, from which separate appeals should have been filed.” 912 F.2d at 923. That simply is not the case here. Nor does In re Pettibone Corp., 145" }, { "docid": "867526", "title": "", "text": "private right of action and dismissed that claim. •' After discovery, the parties filed cross-motions for summary judgment. The district court granted Krinos’s motion and denied Chessie’s. Chessie Logistics Co. v. Krinos Holdings, Inc., No. 13 C 8864, 2016 WL 7034101, at *7 (N.D. Ill. Dec. 2, 2016). Chessie had not shown that it had easements over some of Krinos’s property, the court ruled, and even if it had, an independent contractor, not Krinos, caused the intrusion on Chessie’s tracks. Id. at *5-6. The court therefore granted summary judgment against Chessie’s trespass claim, and against its negligence claim “to the extent it is based on trespass.” Id. at *6. Chessie argued that its negligence claim was ,not based wholly on trespass. In its summary judgment brief, Chessie argued that Krinos was negligent per se. It cited the Illinois Adjacent Landowner Excavation Protection Act, which requires landowners to notify adjoining landowners before excavating. 765 Ill. Comp. Stat. 140/1. Krinos had not followed this statute, Ches-sie reasoned, and was therefore negligent per se. Krinos argued, and the district court agreed, that Chessie had never made that argument before and that the argument was therefore forfeited. The cojirt granted summary judgment against Ches-sie’s negligence per se claim. Krinos dismissed its counterclaims without prejiidicé, and Chessie appealed. II. Analysis A. Appellate Jurisdiction Before addressing the parties’ merits arguments, we pause to consider our jurisdiction. The only route to appellate jurisdiction in this case runs through 28 U.S.C, § 1291, which gives us-jurisdiction over appeals from district courts’ “final decisions.” With certain exceptions :not relevant here, a decision is final if it “disposes .-of all claims against all parties.” Dale v. Lappin, 376 F.3d 652, 654 (7th Cir. 2004), Claims dismissed without prejudice have not been disposed of, and any resulting judgment -is not final -unless there is a clear legal bar to the claim’s revival. First Health Group Corp. v. BCE Emergis Corp., 269 F.3d 800, 801 (7th\" Cir. 2001) (“[Dismissal of one claim or theory without prejudice ... makes the judgment non-final.”); Dixon v. Page, 291 F.3d 485, 488 (7th Cir. 2002) (dismissal" }, { "docid": "7479940", "title": "", "text": "a fraud and as a mutual mistake, then as a practical matter there is only one claim, and a Rule 54(b) judgment cannot be entered.” Olympia Hotels, 908 F.2d at 1367. Thus here, the counterclaims cannot be considered distinct from the claim in the complaint, and Rule 54(b) cannot create an appealable final decision. Even assuming arguendo that the claims were sufficiently distinct for Rule 54(b) purposes, the dismissal without prejudice would be insufficient to create a final judgment. Even if it would have been proper for ITOFCA to ask the district court to enter judgment under Rule 54(b) as to its claim, it did not do so. In West v. Macht, 197 F.3d 1185, 1190 (7th Cir.1999), and Horwitz, 957 F.2d at 1434, this court faced the same situation and refused to aid the parties by attempting to conform the judgment to Rule 54(b)'. This refusal is in accord with our practice regarding attempts to appeal from partial judgments not in compliance with Rule 54(b). See West, 197 F.3d at 1190; see also United States v. Ettrick Wood Products, Inc., 916 F.2d 1211, 1217 (7th Cir.1990) (“Absent proper entry of judgment under Rule 54(b), an order that determines one claim in a multi-claim case, or disposes of all claims against one or more parties in a multiparty case, is not final and appeal-able.”). And as we have noted in the past, “bending the rules to provide jurisdiction is not a move to be undertaken lightly.” West, 197 F.3d at 1189. At oral argument, when we raised the possibility that the dismissal without prejudice might mean that there has been no final decision for § 1291 purposes, we asked MegaTrans’ attorney whether the company would represent to the Court that it would not refile its counterclaims. Had MegaTrans done so, we could have treated the district court’s dismissal of the counterclaims as having been with prejudice, thus winding up the litigation and eliminating the bar to our jurisdiction. See JTC Petroleum, 190 F.3d at 776-77 (7th Cir.1999). However, MegaTrans was unwilling to make any such representation and thus we cannot" }, { "docid": "7584868", "title": "", "text": "the denial of its motion for attorney’s fees. Before considering the merits, we must address two issues of appellate jurisdiction. See Wingerter v. Chester Quarry Co., 185 F.3d 657, 660 (7th Cir.1998) (“A court of appeals has an obligation to examine its jurisdiction sua sponte, even if the parties fail to raise a jurisdictional issue.”). The first issue is whether the court’s August 23 order dismissing For Your Ease’s counterclaims without prejudice was final for purposes of 28 U.S.C. § 1291. A dismissal without prejudice is normally nonfinal because the plaintiff remains free to refile his case. Doctor’s Assocs. v. Duree, 375 F.3d 618, 622 (7th Cir.2004); see also Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) (“[A] decision is ordinarily considered final and appealable under § 1291 only if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945))). In some instances, however, a dismissal without prejudice may effectively end the litigation and thus constitute a final order for purposes of appellate review. Duree, 375 F.3d at 622 (citing as examples a party’s inability to amend the dismissed complaint or file a new complaint within the statute of limitations). Here, the district court’s dismissal of For Your Ease’s counterclaims (following the dismissal of Mostly Memories’ complaint) unequivocally ended the litigation in the Northern District of Illinois. The judge made it clear that he considered the case “over [within] this district, as far as I am concerned.” Neither an amended pleading nor a newly filed action could resurrect For Your Ease’s counterclaims in the Northern District. See Kaba v. Stepp, 458 F.3d 678, 680 (7th Cir.2006) (“[Dismissal without prejudice ... is effectively a final order because no amendment could resolve the problem.”); ITOFCA, Inc. v. MegaTrans Logistics, Inc., 235 F.3d 360, 363 (7th Cir.2000) (no final order where defendant was free to refile its counterclaims in the district court). The risk of piecemeal appeals from the" }, { "docid": "11187601", "title": "", "text": "claim against Heckler without prejudice because of Alejo’s failure to allege facts sufficient to establish Heckler’s personal involvement in the allegedly unconstitutional conduct. As an initial matter, Heckler argues that Alejo has waived any argument contesting Heckler’s dismissal. Heckler’s argument is that because he was dismissed without prejudice, a ruling which invited Alejo to amend his complaint to add allegations of Heckler’s personal involvement, and because Alejo never amended his complaint to include these allegations, we should not now entertain his objections to the district court’s prior dismissal. We have squarely rejected this type of “waiver” argument previously and do so again here. See Bastian v. Petren Res. Corp., 892 F.2d 680, 682 (7th Cir.1990). Alejo argues that the dismissal of Heckler was erroneous — that his amended pro se complaint was sufficient to place Heckler on notice of his personal involvement and to state a claim against him, and as a result the complaint against him should not have been dismissed sua sponte. Alejo could not have challenged this dismissal on appeal at the time the decision was rendered, because the dismissal of a complaint without prejudice is generally not considered a final, appealable decision. See id.; see also Hoskins v. Poelstra, 820 F.3d 761, 763 (7th Cir.2003); Larkin v. Galloway, 266 F.3d 718, 721 (7th Cir.2001); Furnace v. Bd. of Trustees of S. Ill. Univ., 218 F.3d 666, 669 (7th Cir.2000). A final order was not rendered in this case until the court entered judgment pursuant to Rule 58. And “[w]hen a final decision is appealed, the appeal brings up all previous rulings of the district judge adverse to the appellant.” Bastían, 892 F.2d at 682 (citing Asset Allocations & Mgmt. Co. v. W. Employers Ins. Co., 892 F.2d 566, 569 (7th Cir.1989)). Thus, this appeal presents Ale-jo with the opportunity to challenge all of the district court’s prior adverse rulings. But if before this appeal Alejo would have amended his complaint in accordance with what he now asserts was an erroneous ruling, he would have abandoned the principal arguments he raises here. Cf. id. at 683. Rather" }, { "docid": "16305205", "title": "", "text": "infliction of emotional distress, negligent infliction of emotional distress, and negligent supervision. In October 2009, the district court dismissed the Title VII claim and the supplemental state-law claims with prejudice under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court ruled that the Title VII case was barred by claim preclusion, also known as res judicata, because it arose out of the same set of operative facts as the earlier § 1983 case. Czarniecki now appeals that decision. II. Analysis We first review de novo the district court’s decision to dismiss Czarniecki’s Title VII claim on res judicata grounds. Tartt v. Northwest Community Hospital, 453 F.3d 817, 822 (7th Cir.2006). “The doctrine of [res judicata or] claim preclusion is premised on the idea that, when a claim has been fully litigated and come to judgment on the merits, finality trumps.” In re Ingersoll, Inc., 562 F.3d 856, 861 (7th Cir.2009). “Claim preclusion under federal law has three ingredients: a final decision in the first suit; a dispute arising from the same transaction (identified by its ‘operative facts’); and the same litigants (directly or through privity of interest).” United States ex rel. Lusby v. Rolls-Royce Corp., 570 F.3d 849, 851 (7th Cir.2009) (citations omitted); see also Ross ex. rel. Ross v. Board of Education of Township High School District 211, 486 F.3d 279, 283 (7th Cir.2007); Herrmann v. Cencom Cable Associates, Inc., 999 F.2d 223, 224 (7th Cir.1993). We agree with the district court that all of these ingredients are present in this case. First, the parties do not dispute that there was a final judgment in Czarniecki’s § 1983 lawsuit against the City of Chicago. While the district court dismissed Czarniecki’s complaint without prejudice under Rule 41(a), the district court had already found in favor of the City on a summary judgment motion on September 24, 2008. While generally a dismissal without prejudice is not considered final because the plaintiff may refile his case, see Mostly Memories, Inc. v. For Your Ease Only, Inc., 526 F.3d 1093, 1097 (7th Cir.2008), dismissal \"without prejudice sometimes can support a finding" } ]

[ { "docid": "8069520", "title": "", "text": "with the problem of illegal deposits in navigable waterways under the law which explicitly concerns navigation. The Corps of Engineers has a responsibility for pollution abatement and is carrying out that responsibility under various other media. 3. The concern of the Department of the Army in industrial waste under this program lies in the effect the suspended solids contained in the effluent from industrial outfalls have on navigable capacity of the waterway. The Department is primarily con cerned under this program with the shoaling of authorized improved navigation channels and in placing the responsibility and/or cost for moving these shoals on those industries that are causing them.” In December of 1968 the Corps of Engineers of the Department of the Army published a complete revision of Part 209 of the Code of Federal Regulations. While the revision served notice that the Corps of Engineers would consider pollution and other conservation factors in passing on applications under sections 9 and 10 of the Rivers and Harbors Act for permits for “work in navigable waters” (33 C.F.R. § 209.120(d), the sole reference to section 407 again described it in terms limited to problems of navigation: This version of Part 209 remained in effect in August of 1970. “(2) Section 13 of the River and Harbor Act of March 3, 1899 (30 Stat. 1152; 33 U.S.C. 407) authorizes the Secretary of the Army to permit the deposit of refuse matter in navigable waters, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, within limits to be defined and under conditions to be prescribed by him. Although the Department has exercised this authority from time to time, it is considered preferable to act under Section 4 of the River and Harbor Act of March 3, 1905 (33 Stat. 1147; 33 U.S.C. 419). As a means of assisting the Chief of Engineers in determining the effect on anchorage of vessels, the views of the U.S. Coast Guard will be solicited by coordination with the Commander of the local Coast Guard District.” 33 C.F.R. § 209.-200(e) (2). The" } ]

[ { "docid": "23110172", "title": "", "text": "deposit in navigable waters generally of 'refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state.’ The jurisdiction of the Department of the Army, derived from the Federal laws enacted for the protection and preservation of the navigable waters of the United States, is limited and directed to such control as may be necessary to protect the public right of navigation. Action under section 13 has therefore been directed by the Department principally against the discharge of those materials that are obstructive or injurious to navigation.” 33 CFR § 209.395 (1967). In December 1968, the Corps of Engineers published a complete revision of the regulations pertaining to navigable waters. The new regulations pertaining to § § 9 and 10 of the Rivers and Harbors Act of 1899, 33 U. S. C. §§ 401 and 403, dealing with construction and excavation in navigable waters, stated for the first time that the Corps would consider pollution and other conservation and environmental factors in passing on applications under those sections for permits to “work in navigable waters.” 33 CFR § 209.120 (d) (1969). But notwithstanding this reference to environmental factors and in spite of our intervening decision in Standard Oil, the new regulation pertaining to § 13 of the 1899 Act continued to construe that provision as limited to water deposits that affected navigation: “Section 13 of the River and Harbor Act of March 3, 1899 (30 Stat. 1152; 33 U. S. C. 407) authorizes the Secretary of the Army to permit the deposit of refuse matter in navigable waters, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, within limits to be defined and under conditions to be prescribed by him. Although the Department has exercised this authority from time to time, it is considered preferable to act under Section 4 of the River and Harbor Act of March 3, 1905 (33 Stat. 1147; 33 U. S. C. 419). As a means of assisting the Chief of Engineers in determining the" }, { "docid": "14324952", "title": "", "text": "on this subject the Corps’ consideration was reasonable and adequate. Claims 5 and 6 These claims attack the Corps proceedings as violative of the Clean Water Act and the Rivers and Harbors Act. These claims were tried, and the findings of fact and conclusions of law appear hereafter in this opinion. Claim 7 This claim is that the landfill requires Congressional approval because it is a dike. See § 9 of the Rivers and Harbors Act, 33 U.S.C. § 401. This claim is invalid as a matter of law, and is dismissed. Claim 8 This claim is that plaintiffs have been denied their constitutional rights. The claim is invalid and must be dismissed. SIERRA CLUB CASE — FINDINGS OF FACT ON CLAIMS TRIED CORPS OF ENGINEERS’ LANDFILL PERMIT Legal Framework In order to perform the extensive landfill in the Hudson River required for Westway, permission needed to be obtained from the United States Army Corps of Engineers pursuant to Section 10 of the Rivers and Harbors Appropriations Act of 1899, 33 U.S.C. § 403, and Section 404 of the Clean Water Act, 33 U.S.C. § 1344. The first of the above statutes provides that it shall be unlawful to fill or alter the course of any channel of any navigable water of the United States unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army. Section 404(a) of the Clean Water Act, 33 U.S.C. § 1344(a), provides that the Secretary of the Army may issue permits, after public hearings, for the discharge of dredged or fill material into the navigable waters. The Corps of Engineers has promulgated regulations regarding the handling of dredge and fill applications. These are contained in Title 33 of the Code of Federal Regulations. In addition, Section 404(b) of the Clean Water Act, 33 U.S.C. § 1344(b), provides that the action on any application for such a permit is to be made in conformance with guidelines developed by the Environmental Protection Agency (“EPA”) in conjunction with the Secretary of the Army. These guidelines are contained in Title" }, { "docid": "381287", "title": "", "text": "or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor or refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same. 33 U.S.C. § 403. Trump alleges that the defendants have not secured the authorization of the Secretary of the Army or the Corps of Engineers. In California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981), the Supreme Court held that § 10 of the Rivers and Harbors Appropriations Act does not provide a private right of action to challenge the construction of an unpermitted structure in the navigable waters of the United States. Accordingly, Trump’s claim based upon an alleged violation of the permitting requirements of the Rivers and Harbors Appropriations Act of 1899 must be dismissed. D. The Federal-Aid Highway Act Trump alleges that, absent an injunction, defendants will violate the Federal-Aid Highway Act (“FHA”), 23 U.S.C. §§ 101-161. Specifically, plaintiff cites § 109 of the Act, which establishes standards for federally funded highway projects, and to the regulations promulgated pursuant to § 315 of the Act, especially Section 771.113 of Title 23 of the Code of Federal Regulations, which provides: The Administration in cooperation with the applicant will perform the work necessary to complete a [Finding of No Significant Impact] or an [Environmental Impact Statement] and comply with other related environmental laws and regulations to the maximum extent possible during the [National Environmental Policy Act] process. This work includes environmental studies, related engineering studies, agency coordination and public involvement. However, final design activities, property acquisition (with the exception of hardship and protective buying, as defined in § 771.117(d)), purchase of construction materials or rolling stock, or project construction shall not proceed until the following have been completed: (1) (i) The action has been classified as a categorical exclusion (CE), or (ii) A" }, { "docid": "21927019", "title": "", "text": "“fills”, mentioned in Section 403, all come within plaintiff’s dictionary definition of dikes. I find that the work that the Port is authorized to construct under the permit of August 5, 1969, does not obstruct navigation and that the fills and other structures are not “dikes” within the meaning of 33 U.S.C. § 401. Although plaintiffs contend that the work to be performed under the permit includes a causeway and therefore requires the consent of the Secretary of Transportation as well as Congress, I find that no such structure is authorized. Whether a causeway will be built need not be determined at this time. This opinion shall constitute findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). . 33 U.S.C. § 403 was enacted in 1899 as § 10 of the Rivers and Harbors Appropriations Act of 1899, Ch. 425, 30 Stat. 1151. In its present form it reads: “The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited ; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any * * * navigable river or other water of the United States * * * except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition or capacity of, * * * the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.” . 33 U.S.C. § 401, originally enacted as § 9 of the Rivers and Harbors Appropriation Act of 1899, now reads: “It shall not be lawful to construct or commence the construction of any * * * dam, dike or causeway over or in any * * * navigable river, or other" }, { "docid": "123088", "title": "", "text": "is mandatory, and no permit or extention of time in which to complete work authorized by a permit will be granted unless notice has been issued and a reasonable time afforded for a protest * * The period in which the permit is to be kept pending awaiting objections is set at a minimum of ten days after issuance of notice. The regulations further provide that under normal circumstances the period should be not less than 30 days after the actual mailing of notice, and a longer period can be afforded in exceptional or im portant cases. Public hearings are portant cases, provided for whenever it appears that there is sufficient public interest to justify such action and in case of doubt a public hearing is required. Cited as a specific example are cases in which there is general public opposition to issuance of a permit. Hearings, when held, are to be conducted in an informal manner, presided over by the District Engineer or his delegate with a full opportunity given each side to express their views. Formal adversary proceedings are not contemplated. In a sentence, the regulations-contemplate application, proclamation, coordination, information, argumentation, consideration and then determination. Whatever doubts there might be about the Third Circuit’s reading a permit structure into the related Refuse Act, 33 U.S.C.A. § 407 (§ 13 of the Rivers and Harbors Act of 1899) in United States v. Pennsylvania Industrial Chemical Corp., 3 Cir., 1972, 461 F.2d 468, cert. granted, 409 U.S. 1074, 93 S.Ct. 689, 34 L.Ed.2d 662, it is positive that § 10 (33 U.S.C.A. § 403) is structured on a permit basis. Indeed the Act itself, by its very terms makes it unlawful “to excavate or fill * * * any navigable water of the United States, unless the work has been [i] recommended by the Chief of Engineers and [ii] authorized by the Secretary of the Army * * And the regulations, which are in no wise questioned here, specifically authorize an application for, and the granting of, a permit after the commencement or completion of the work, under appropriate circumstances." }, { "docid": "1303320", "title": "", "text": "403. See id. Section 10 concerns “Obstruction of navigable waters generally; wharves; piers, etc.; excavations and filling in.” Section 10 does not control waste or refuse disposal, permits for which were required and issued under a separate section of the RHA, Section 13, commonly known as the “Refuse Act.” 33 U.S.C. § 407 (discussed below). The Corps’ 1972 dredge and fill permit regulations covered all excavation and construction in navigable waters. For example, the location and plans of dams and dikes across navigable waters must be approved. Id. at § 209.120(b)(1)(a). In addition, “Plans for wharves, piers, dolphins, booms, weirs, breakwaters, bulkheads, jetties, or other structures, and excavation or fill in navigable waters must be recommended by the Chief of Engineers and approved by the Secretary of the Army.” Id. at (b)(1)(b). Throughout the dredge and fill permitting section are references to “work and construction in navigable waters,” 33 C.F.R. § 209.120(f), “including such work and construction performed by the Corps of Engineers in the capacity of a construction agency for other branches and services,” id., “work and structures in or over navigable waters,” 33 C.F.R. § 209.120(c)(iii), “improvements of any navigable river,” 33 C.F.R. § 209.120(e), and “structures and improvements,” 33 C.F.R. § 209.120(d)(3)(all emphases added). These are just examples of numerous references throughout the section that support the conclusion the fill operations contemplated were for work, construction, structure building, and improvement, and never for waste disposal. Prior to the CWA, waste disposal was overseen, also by the Corps, under the Refuse Act in a separate permit program for discharges or deposits into navigable waters, then found at § 209.131 (1972). This program, authorized by § 13 of the RHA, 33 U.S.C. § 407, provided for permits for discharge or deposit of “refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state into any navigable water of the United Statesf.]” 33 C.F.R. § 209.131 (quoting 33 U.S.C. § 407). The Refuse Act permit program for disposal of waste, refuse, and pollutants was explicitly replaced by §" }, { "docid": "8624881", "title": "", "text": "plans for the dam or other physical structures affecting navigation must be approved by the Chief of Engineers and the Secretary of the Army. In such cases, the interests of navigation should normally be protected by a recommendation to the FPC for the inclusion of appropriate provisions in the FPC license rather than the issuance of a separate Department of the Army permit under 33 U.S.C. 401 et seq.” 38 Fed.Reg. 12218 (May 10, 1973). Furthermore, James E. DeSista, Chief of the Regulatory Functions Branch of the Corps, has submitted an affidavit in which he states that no regulation issued since 1920 required the Corps to issue a § 10 permit to an FPC-licensed project and that “[a]s applications for FPC licenses are coordinated with the Corps of Engineers ... it has been the policy of the Corps of Engineers to include in the Corps response to FPC all requisite information and recommendations, and hence it has been filed [sic] unnecessary to issue a separate Section 10 Permit” (par. 7). ■ He notes further that authority to issue permits has been delegated by the Corps to its Division and District Engineers and that “there have been instances where a District or Division Engineer has issued duplicate permits in connection with FPC projects” (par. 8). As to these, he states that “[t]he issuance of these few permits were made by the local District or Division Engineer under his delegated authority and were not a result of any policy decision or directive from [the Office of the Corps of Engineers]” (id.). We conclude, accordingly, that Con Ed and the Corps are correct that no permit is required under § 10 of the Rivers and Harbors Act for construction of the Storm King project. II. Federal Water Pollution Control Act. Section 404 of the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1344(a), requires a permit for the discharge of “dredged or fill material” into navigable waters. It provides : (a) The Secretary of the Army, acting through the Chief of Engineers, may issue permits, after notice and opportunity for public" }, { "docid": "123089", "title": "", "text": "their views. Formal adversary proceedings are not contemplated. In a sentence, the regulations-contemplate application, proclamation, coordination, information, argumentation, consideration and then determination. Whatever doubts there might be about the Third Circuit’s reading a permit structure into the related Refuse Act, 33 U.S.C.A. § 407 (§ 13 of the Rivers and Harbors Act of 1899) in United States v. Pennsylvania Industrial Chemical Corp., 3 Cir., 1972, 461 F.2d 468, cert. granted, 409 U.S. 1074, 93 S.Ct. 689, 34 L.Ed.2d 662, it is positive that § 10 (33 U.S.C.A. § 403) is structured on a permit basis. Indeed the Act itself, by its very terms makes it unlawful “to excavate or fill * * * any navigable water of the United States, unless the work has been [i] recommended by the Chief of Engineers and [ii] authorized by the Secretary of the Army * * And the regulations, which are in no wise questioned here, specifically authorize an application for, and the granting of, a permit after the commencement or completion of the work, under appropriate circumstances. After-the-fact permits — so vitally important to whatever chances Moretti has for saving the Hammer Point project— are specifically recognized in the Corps regulations. Read in conjunction with all the regulations, the regulations coneerning after-the-fact permits provide that they be processed in the same manner as other permit applications. These procedures were not followed to full completion of the administrative processing of this application in this case. This is of great import to what we do in this opinion. So long as that regulation stands the Department of the Army was required to respect it. Cf. Vitarelli v. Seaton, 1959, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012; and see Schatten v. United States, 6 Cir., 1969, 419 F.2d 187; Smith v. Resor, 2 Cir., 1969, 406 F.2d 141; and Elmo Division of Drive-X Company v. Dixon, 1965, 121 U.S.App. D.C. 113, 348 F.2d 342. Moretti had a right to file the application and have it processed in accordance with those regulations. Conversely, the Corps of Engineers as the delegated agent of the Secretary" }, { "docid": "123082", "title": "", "text": "On December 30, 1970, the Corps ordered Moretti to cease from further work below the mean high water mark because this was a violation of Federal law unless properly authorized by the Secretary of the Army. After one or two exchanges with the Corps Moretti stopped working, a cessation which was to last for at least a few months. As authorized under Corps regulations the Moretti Company applied for an after-the-fact permit to dredge part of and fill part of Florida Bay. That is, he sought a permit which would legitimize the work done and to be done. Structure of the Act and Regulations In addition to construction and maintenance of flood-control and other improvements on the navigable waters of the United States, the Secretary of the Army acting through the Corps of Engineers has been charged by Congress with administering the Rivers and Harbors Act of 1899 as well as the other principal laws enacted for the protection of navigation and the integrity of the navigable waters of the United States. The Corps of Engineers — the eyes and ears, and sometimes hand of the Secretary — is headed by the Chief of Engineers who is charged by law with advising the Secretary of the Army of the propriety of issuing permits. The Corps itself is divided into 11 “divisions” which are in turn subdivided into 37 “districts.” As will be seen later, authority to grant permits is in some cases delegated down to the level of the District Engineers. The duties of the Secretary of the Army and the Corps of Engineers under the Act together with the administrative procedures which include the delegation of authority through the Corps are set out at 33 C.F.R. § 209.120 (1972). The Secretary has authorized the Chief of the Corps, at the latter’s option, to delegate authority to issue permits to District Offices of the Corps in any ease in which the application for construction in navigable waters is “entirely routine and * * * involve [s] no difference of opinion * * * nor any opposition or other considerations which" }, { "docid": "22918738", "title": "", "text": "congressional power over commerce and the dominant navigational servitude of the United States precisely where it found them.” Congress clearly has the power under the Commerce Clause to regulate the use of Landholders’ submerged riparian property for conservation purposes and has not given up this power in the Submerged Lands Act. IV Prohibiting Obstructions to Navigation The action of the Chief of Engineers and the Secretary of the Army under attack rests immediately on the Rivers and Harbors Act, 33 U.S.C.A. § 403, which declares that “the creation of any obstruction * * * to the navigable capacity of any of the waters of the United States is prohibited.” The Act covers both building of structures and the excavating and filling in navigable waters. It is structured as a flat prohibition unless — the unless being the issuance of approval by the Secretary after recommendation of the Chief of Engineers. The Act itself does not put any restrictions on denial of a permit or the reasons why the Secretary may refuse to grant a permit to one seeking to build structures on or dredge and fill his own property. Although the Act has always been read as tempering the outright prohibition by the rule of reason against arbitrary action, the Act does flatly forbid the obstruction. The administrator may grant permission on conditions and conversely deny permission when the situation does not allow for those conditions. But the statute does not prescribe either generally or specifically what those conditions may be. The question for us is whether under the Act the Secretary may include conservation considerations as conditions to be met to make the proposed project acceptable. Until now there has been no absolute answer to this question. In fact, in most cases under the Rivers and Harbors Act the Courts have been faced only with navigation problems.” See, e. g., Sanitary Dist. v. United States, 1925, 266 U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352; Wisconsin v. Illinois, 1929, 278 U.S. 367, 49 S.Ct. 163, 73 L.Ed. 426; United States v. Republic Steel Corp., 1960, 362 U.S. 482, 80" }, { "docid": "13565135", "title": "", "text": "OPINION KUNZIG, Judge: In this ease, plaintiff contends that it has suffered an uncompensated taking as the consequence of federal regulation affecting its development of a planned subdivision along the Gulf coast of Florida. The statutes in question — § 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403, and § 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1344 — and implementing regulations thereunder, prohibit, inter alia, dredging and filling in navigable waters without the authorization of the Department of the Army. The latter, stressing environmental factors, has thus far steadfastly refused to grant plaintiff the permits it needs to finish its project. We hold that while plaintiff may indeed have sustained an economic loss, the loss is not such as to constitute a Fifth Amendment taking under the circumstances herein. I. BACKGROUND A. Applicable Statutes and Regulations: A Pattern of Stiffening Requirements. 1. Section 10 of the Rivers and Harbors Appropriation Act of 1899, 30 Stat. 1121, 1151, 33 U.S.C. § 403 (1976) (Rivers and Harbors Act), provides in part: That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited .... The section goes on to outlaw various structures in any navigable water of the United States except those initiated by plans recommended by the Chief of Engineers and authorized by the Secretary of the Army. Section 10 then states that it shall not be lawful to excavate or fill, or in any manner to alter or modify the . . . capacity of .. . the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War [now the Army] prior to beginning the same. See United States v. Republic Steel Corp., 362 U.S. 482, 484-485, 80 S.Ct. 884, 886, 4 L.Ed.2d 903 (1960). The Secretary of the Army has delegated to the Corps of Engineers the authority to issue or deny Section" }, { "docid": "5891947", "title": "", "text": "KUNZIG, Judge, delivered the opinion of the court: In this case, plaintiff contends that it has suffered an uncompensated taking as the consequence of federal regulation affecting its development of a planned subdivision along the Gulf coast of Florida. The statutes in question — § 10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. § 403, and § 404 of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1344 — and implementing regulations thereunder, prohibit, inter alia, dredging and filling in navigable waters without the authorization of the Department of the Army. The latter, stressing environmental factors, has thus far steadfastly refused to grant plaintiff the permits it needs to finish its project. We hold that while plaintiff may indeed have sustained an economic loss, the loss is not such as to constitute a Fifth Amendment taking under the circumstances herein. I. BACKGROUND A. Applicable Statutes and Regulations: A Pattern of Stiffening Requirements. 1. Section 10 of the Rivers and Harbors Appropriation Act of 1899, 30 Stat. 1121, 1151, 33 U.S.C. § 403 (1976) (Rivers and Harbors Act), provides in part: That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited . . . . The section goes on to outlaw various structures in any navigable water of the United States except those initiated by plans recommended by the Chief of Engineers and authorized by the Secretary of the Army. Section 10 then states that it shall not be lawful to excavate or fill, or in any manner to alter or modify the . . . capacity of. . . the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of War [now the Army] prior to beginning the same. See United States v. Republic Steel Corp., 362 U.S. 482, 484-485 (1960). The Secretary of the Army has delegated to the Corps of Engineers the authority to issue or deny" }, { "docid": "22201101", "title": "", "text": "for a writ of certiorari which we granted because of the public importance of the questions tendered. 359 U. S. 1010. Section 10 of the Rivers and Harbors Act of 1899, 30 Stat. 1121, 1151, as amended, 33 U. S. C. § 403, provides in part: “That the creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is hereby prohibited; . . .” (Italics added.) The section goes on to outlaw various structures “in” any navigable waters except those initiated by plans recommended by the Chief of Engineers and authorized by the Secretary of the Army. Section 10 then states that “it shall not be lawful to excavate or fill, or in any manner to alter or modify the . . . capacity of . . . the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.” A criminal penalty is added by § 12; and § 12 further provides that the United States may sue to have “any structures or parts of structures erected” in violation of the Act removed. Section 17 directs the Department of Justice to “conduct the legal proceedings necessary to enforce” the provisions of the Act, including § 10. Section 13 forbids the discharge of “any refuse matter of any kind or description whatever other than that flow.-ing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States”; but § 13 grants authority to the Secretary of the Army to permit such deposits under conditions prescribed by him. Our conclusions are that the industrial deposits placed by respondents in the Calumet have, on the findings of the District Court, created an “obstruction” within the meaning of § 10 of the Act and are discharges not exempt under § 13. We also conclude that the District Court was authorized to grant the relief. The history of federal control over obstructions" }, { "docid": "1303319", "title": "", "text": "disposed of in a site. Thus, the Conferees agreed the Administrator of the [EPA] should have the veto over the selection of the site for dredged spoil disposal and over any specific spoil to be disposed of in any selected site. Id. (emphasis added). The Conference agreement became 33 U.S.C. § 1344(a)— (d). Throughout Congressional consideration, dredged spoil was the single pollutant of concern. Section 404 was enacted to allow harbor dredging and dredged spoil disposal to continue expeditiously under the then-existing dredge and fill permit program administered by the Corps. Examination of that permit program, adopted by Congress as CWA § 404, shows fill permits were never issued nor authorized for waste disposal. 2. Dredge and Fill Permits The Corps’ dredge and fill permit program to which the Congressional Conference Committee deferred in 1972 was found at 33 C.F.R. §§ 209.120 (1972), entitled “Permits for work in navigable waters.” Statutory authority for those 1972 dredge and fill permits was provided under Section 10 of the Rivers and Harbors Act of 1899(RHA), 33 U.S.C. § 403. See id. Section 10 concerns “Obstruction of navigable waters generally; wharves; piers, etc.; excavations and filling in.” Section 10 does not control waste or refuse disposal, permits for which were required and issued under a separate section of the RHA, Section 13, commonly known as the “Refuse Act.” 33 U.S.C. § 407 (discussed below). The Corps’ 1972 dredge and fill permit regulations covered all excavation and construction in navigable waters. For example, the location and plans of dams and dikes across navigable waters must be approved. Id. at § 209.120(b)(1)(a). In addition, “Plans for wharves, piers, dolphins, booms, weirs, breakwaters, bulkheads, jetties, or other structures, and excavation or fill in navigable waters must be recommended by the Chief of Engineers and approved by the Secretary of the Army.” Id. at (b)(1)(b). Throughout the dredge and fill permitting section are references to “work and construction in navigable waters,” 33 C.F.R. § 209.120(f), “including such work and construction performed by the Corps of Engineers in the capacity of a construction agency for other branches and services,”" }, { "docid": "18310717", "title": "", "text": "the United States at a cost of $163,000. It may be helpful at the outset to take a brief general look at the relevant statutes, all of which are derived from the Rivers and Harbors Act of 1899. Title 33 U.S.C.A. § 401, derived from § 9 of the Rivers and Harbors Act of 1899, prohibits the construction of bridges, dams, dikes and causeways in or over navigable waters without prior approval of the Chief of Engineers and the Secretary of the Army. 33 U.S.C.A. § 403, derived from § 10 of the Act, the full text of which is set forth in the margin, prohibits the creation of any obstruction to the navigable capacity of waters of the United States unless authorized by the Congress. The section declares that the building or the commencement of the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, or jetty shall not be lawful unless done pursuant to plans recommended by the Chief of Engineers and authorized by the Secretary of the Army. It also declares it shall not be lawful to excavate, fill or alter the course, condition or capacity of any port or similarly enclosed waters or of a canal or the channel of any navigable waters of the United States, unless the work has been authorized by the Secretary of the Army upon the recommendation of the Chief of Engineers. Section 404, derived from § 11 of the Act, authorizes the Secretary of the Army to establish harbor lines and prohibits the extension of piers, wharves, bulkheads, or other works or deposits beyond the harbor lines, except pursuant to regulations prescribed by the Secretary of the Army. Section 406, derived from § 12 of the Act, provides a penalty for the wrongful construction of bridges, piers and similar structures and provides for their removal. It declares any violation of §§ 401, 403 or 404 shall be a misdemeanor and specifically authorizes district courts to issue injunctions requiring the removal of any structure, or part of a structure, erected in violation of those sections. Section 409 of Title 33," }, { "docid": "381286", "title": "", "text": "alleged that he has complied with the notice provisions of the CWA. Accordingly, Trump’s claim based upon the defendants’ alleged failure to comply with the CWA must be dismissed. C. The Rivers and Harbors Appropriation Act of 1899 Defendants move to dismiss the third count of plaintiffs complaint, which is based upon the defendants’ alleged failure to comply with Section 10 of the Rivers and Harbors Appropriation Act of 1899, which provides: The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor or refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same. 33 U.S.C. § 403. Trump alleges that the defendants have not secured the authorization of the Secretary of the Army or the Corps of Engineers. In California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981), the Supreme Court held that § 10 of the Rivers and Harbors Appropriations Act does not provide a private right of action to challenge the construction of an unpermitted structure in the navigable waters of the United States. Accordingly, Trump’s claim based upon an alleged violation of the permitting requirements of the Rivers and Harbors Appropriations Act of 1899 must be dismissed. D. The" }, { "docid": "123113", "title": "", "text": "91 S.Ct. 873, 27 L.Ed.2d 808. See Environmental Law — Consideration Must Be Given to Ecological Matters in Federal Agency Decisions, 71 Boston College Ind. & Comm.L.Rev. 674 (1971) ; Comment, 50 B.U.L.Rev. 616 (1970) ; Note, 19 Kan.L.Rev. 539 (1970) and Note 16 Vill.L.Rev. 766, 778 (1971) which describes Zabel as “an important innovation in the struggle to preserve the environment of the coastal zone.” Of., The Refuse Act Permit Program: The Corps of Engineers’ Role in Enforcement and Administration, 9 Efouston L.Rev. 683 (1972). . See footnote 1, supra. The sections of the Statute as enacted, e. g., § 10, do not correspond to the Sections of the Statute as codified in 33 U.S.C.A. §§ 401-426Í. Section 10 of the original act is § 403 of 33 U.S.C.A. This is pointed out for no other reason than to save the reader the possible confusion which might be encountered. . See, e. g., § 403 of 33 U.S.C.A., note 2, supra, the Section which defendant Mor-etti failed to heed. In this section Congress has required that certain permits not be issued unless “recommended by the Chief of Engineers and authorized by the Secretary of the Army.” . § 209.120(c) (l)(i). . § 209.120(c) (l)(ii). . § 209.120(c) (1) (iii) : Division and District Engineers. The Chief of Engineers has authorized Division and District Engineers to issue direct from their own offices, in the name of the Secretary of the Army, permits under Sections 10 and 14 of the Act of March 3, 1899, for work and structures in or over navigable waters in cases which are entirely routine and which involve no doubt as to the law, facts or regulations nor any opposition or other consideration which should be decided by higher authority. A case is held to be entirely routine, as determined by the Division Engineer, if the approval of the plans would unquestionably be given were the matter presented to the Chief of Engineers and the Secretary of the Army. The mere fact that proposed work is extensive in scope does not necessarily remove it from the" }, { "docid": "11467860", "title": "", "text": "since a permit application is “adjudication,” they were entitled to a § 556 hearing. Section 554, however, does not affect all adjudications, but rather this section comes into play only in cases of adjudication which are required by statute to be determined on the record after an opportunity for an agency hearing. Thus, to determine whether a § 556 hearing is required, we must examine the relevant statute to see if it requires the permit application “to be determined on the record after an opportunity for an agency hearing.” Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403 provides: The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge,- or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same. Nowhere in § 403 is any mention made of a hearing, much less of a requirement that the Corps of Engineers make their determination “on the record after an opportunity for a hearing.” Without this, § 554 of the APA does not apply, and, consequently, a § 556 hearing is not required. As previously explained, without the § 556 hearing, the scope of review of a Corps of Engineers determination is not" }, { "docid": "123087", "title": "", "text": "permittee to take steps to resolve the dispute at the district level and failing this shall refer the case to the Chief of Engineers —his counterpart the Regional Director submitting his views to his agencies “Washington headquarters” — for appropriate action, (v) Finally the Chief of Engineers and the Under Secretary of Interior shall consult and attempt to resolve any differences between their departments and failing this the case shall be submitted to the Secretary of the Army for decision after consultation with the Secretary of the Interior The Corps regulation §§ 209.120(e), (f) and (g) govern the applications for permits and the handling of these applications with regard to public hearings and notices to other agencies of federal and state governments. The regulations place the duty of giving both public notice and notice to the other agencies mentioned above on the District Engineer. The permit application must contain a sketch showing the location and extent of the work proposed. This sketch will accompany the Engineer’s notice. The regulations state flatly that “the public notice is mandatory, and no permit or extention of time in which to complete work authorized by a permit will be granted unless notice has been issued and a reasonable time afforded for a protest * * The period in which the permit is to be kept pending awaiting objections is set at a minimum of ten days after issuance of notice. The regulations further provide that under normal circumstances the period should be not less than 30 days after the actual mailing of notice, and a longer period can be afforded in exceptional or im portant cases. Public hearings are portant cases, provided for whenever it appears that there is sufficient public interest to justify such action and in case of doubt a public hearing is required. Cited as a specific example are cases in which there is general public opposition to issuance of a permit. Hearings, when held, are to be conducted in an informal manner, presided over by the District Engineer or his delegate with a full opportunity given each side to express" }, { "docid": "123114", "title": "", "text": "required that certain permits not be issued unless “recommended by the Chief of Engineers and authorized by the Secretary of the Army.” . § 209.120(c) (l)(i). . § 209.120(c) (l)(ii). . § 209.120(c) (1) (iii) : Division and District Engineers. The Chief of Engineers has authorized Division and District Engineers to issue direct from their own offices, in the name of the Secretary of the Army, permits under Sections 10 and 14 of the Act of March 3, 1899, for work and structures in or over navigable waters in cases which are entirely routine and which involve no doubt as to the law, facts or regulations nor any opposition or other consideration which should be decided by higher authority. A case is held to be entirely routine, as determined by the Division Engineer, if the approval of the plans would unquestionably be given were the matter presented to the Chief of Engineers and the Secretary of the Army. The mere fact that proposed work is extensive in scope does not necessarily remove it from the class of routine cases if no possible objection to the work can be foreseen. Applications for permits for works in navigable waters which extend a reasonable distance beyond harbor lines will be considered routine, if they otherwise conform to the foregoing criteria. The after-the-fact permit procedures, discussed in text, infra, so vitally important to appellant, are treated for purposes of delegation of authority to District Engineers just as any other permit. That is, subject to the special restrictions, infra, the District Engineer handles these as he would any other “routine” permit application. . Section 209.120(d) (1). . As to the regulations see, e. g., § 209.120 (d) (3). “Consideration is given to the effect of proposed coastal structures or improvements upon existing navigation projects and upon adjacent shore properties * * *>’ The statutes, executive order, and agreement, are discussed in text, infra. . Executive Order 11288 is transplanted and summarized by.the Secretary of the Army in § 209.120(d) (8). . Id. . See, Fish and Wildlife Coordination Act, 16 U.S.C.A. § 661, et seq.," } ]

[ { "docid": "8238215", "title": "", "text": "court based its decision to grant summary judgment on the exclusion of certain expert testimony, we review de novo whether the court employed the correct legal standard in reaching its admissibility decision. Winters v. Fru-Con Inc., 498 F.3d 734, 742 (7th Cir.2007). Once satisfied that it did, we review only whether the court abused its discretion in its “choice of factors to include within that framework as well as its ultimate conclusions regarding the admissibility of expert testimony.” Id. The admissibility of expert testimony is governed by Federal Rule of Evidence 702 and the Supreme Court’s opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Naeem v. McKesson Drug Co., 444 F.3d 593, 607 (7th Cir.2006). Expert testimony is admissible when the testimony is reliable and would assist the trier of fact to understand the evidence or determine a fact at issue in a case. See Fed.R.Evid. 702; Daubert, 509 U.S. at 589-91, 113 S.Ct. 2786. The proponent of the expert bears the burden of demonstrating that the expert’s testimony would satisfy the Daubert standard. Fed.R.Evid. 702 advisory committee’s note (2000 Amends.) (“[T]he admissibility of all expert testimony is governed by the principles of Rule 104(a). Under that Rule, the proponent has the burden of establishing that the pertinent admissibility requirements are met by a preponderance of the evidence.”); cf. Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987) (holding that the proponent of hearsay evidence must prove to the court, by a preponderance of the evidence, that the Rules of Evidence have been satisfied). Because it is clear from the district court’s order that it applied Rule 702 and Daubert, we are satisfied that the court utilized the correct standard in conducting its analysis. Thus, we review the substance of the court’s evidentiary decisions only for an abuse of discretion. See Winters, 498 F.3d at 742. Upon review, we conclude that the court was well within the bounds of its discretion in deciding not to consider the testimony of Fink and Kohn. A party" } ]

[ { "docid": "5258122", "title": "", "text": "components of Stasior’s expert testimony are admissible, then the court must decide whether such testimony creates any genuine issues of material fact regarding Stasior’s FELA claim. I. ADMISSIBILITY OF STASIOR’S PROFFERED EXPERT TESTIMONY UNDER RULE 702 AND THE DAU-BERT STANDARD A. Fed.R.Evid 702 and the Daubert Standard Under Rule 104(a) of the Federal Rules of Evidence, “[preliminary questions concerning the qualification of a person to be a witness, ... or the admissibility of evidence shall be determined by the court.” Fed.R.Evid. 104(a); see also Bradley v. Brown, 42 F.3d 434, 436 (7th Cir.1994) (“[i]t is well established that issues related to expert opinion testimony are matters of law to be determined by the trial judge”) (citations omitted). The proponent of the proffered expert testimony, i.e. Stasior in the present case, bears the burden of establishing its admissibility by a preponderance of proof. Bradley v. Brown, 852 F.Supp. 690, 697 (N.D.Ind.), aff'd., 42 F.3d 434 (7th Cir.1994) (citation omitted); Dukes v. Illinois Central Railroad Co., 934 F.Supp. 939 (N.D.Ill.1996); Schmaltz v. Norfolk and Western Ry. Co., 878 F.Supp. 1119, 1120 (N.D.Ill.1995)(citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1316 (9th Cir.1995) (“the party presenting the expert must show that the expert’s findings are based on sound science ... ”)). In determining whether Stasior has met her burden in this case, the court is guided by Rule 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In Dau-bert, the Supreme Court held that the trial court must, under Rule 702, exercise “some degree of regulation of the subjects and theories about which an expert may testify.” 509 U.S. at 589, 113 S.Ct. 2786. Rule 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Fed.R.Evid. 702. In construing this rule, the Supreme Court explained that “the adjective ‘scientific’ implies a grounding" }, { "docid": "7726596", "title": "", "text": "at trial.”)(quotation marks and citation omitted). Pursuant to Rule 104(a), the court must evaluate evidence for admissibility before it considers that evidence in ruling on a summary judgment motion. Fed.R.Evid. 104(a) (evaluation of preliminary questions); see also Borgognone, 2000 WL 341135, at *2; Donnelly v. Ford Motor Co., 80 F.Supp.2d 45, 47-48 (S.D.N.Y.1999). If a proffer of expert testimony is excluded as inadmissible pursuant to Rule 702, the court must make the summary judgment determination on a record that does not include that evidence. See Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir.1997); Donnelly, 80 F.Supp.2d at 47. The standard for admissibility of evidence pursuant to Rule 702 is the same at the summary judgment stage as it is at trial. See General Elec. Co. v. Joiner, 522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)(“On a motion for summary judgment, disputed issues of fact are resolved against the moving party ... but the question of admissibility of expert testimony is not such an issue of fact.”). Federal Rule of Evidence 702 provides If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Fed.R.Evid. 702. The Supreme Court has defined the role of the district court as that of a gatekeeper charged with the task of deciding whether an expert’s scientific testimony satisfies Rule 702’s general requirements of reliability and relevance. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Originally intended to screen out “junk science,” Daubert has been extended to apply to both technical and other specialized expert evidence as well. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)(teehnical or other specialized knowledge); Brooks v. Outboard Marine Corp., 234 F.3d 89, 91 (2d Cir.2000). In December 2000, Rule 702 was amended to incorporate Daubert’s formulation of the gatekeeping task:" }, { "docid": "14210273", "title": "", "text": "the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Fed.R.Evid. 702. The rule, which was amended-in 2000, reflects the Supreme Court’s decisions in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). See Fed.R.Evid. 702 advisory comm, note, 2000 amend. (“In Daubert the Court charged trial judges with the responsibility of acting as gatekeepers to exclude unreliable expert testimony, and the Court in .Kumho clarified that this gatekeeper function applies to all expert testimony, not just testimony based in .science.”). Under Rule 702, “a' proposed expert’s opinion is admissible, at the discretion of the trial court, if the opinion satisfies three requirements. First, the witness must be qualified by ‘knowledge, skill, experience, training, or education.’ Second, the testimony must be relevant, meaning that it ‘will assist the trier of fact to understand the evidence or to determine a fact in issue.’ Third, the’ testimony must be reliable.” In re Scrap Metal Antitrust Litigation, 527 F.3d 517, 528-29 (6th Cir.2008) (quoting Fed. R.Evid. 702). The party offering the expert’s téstimony has the burden to prove by a preponderance of the evidence that the expert is qualified. Sigler v. Am. Honda Motor Co., 532 F.3d 469, 478 (6th Cir.2008). We have also’ stated that “rejection of expert testimony is the exception, rather than the rule.” In re Scrap Metal, 527 F.3d at 530 (internal quotation marks omitted). Accordingly, “Rule 702 should be broadly interpreted on the basis of whether the use of expert ‘testimony will assist the trier of fact.” Morales v. Am. Honda Motor Co., Inc., 151 F.3d 500, 516 (6th Cir.1998) (citation and internal quotation marks omitted). Before applying these standards, we describe in more detail the proposed testimony at issue. Wilson’s proposed testimony concerned the feasibility of constructing a hotel on the property. In his two-page expert report," }, { "docid": "5154855", "title": "", "text": "the amount of chemicals in hair dye that would cause an allergic reaction when in contact with human skin is “beyond [his] expertise” and that question “gets into the area almost of medicine.” (Pl. 56.1 Resp. ¶ 30.) Moriarty has not written, taught, published or done any work concerning allergic reactions to any of the chemicals present in the dye. (Moriarty Dep., PL Ex. K, 65:10-21.) Other than his work on this case, he has never written, taught or done any other work regarding the potential for an allergic reaction to any substance or chemical. (Pl. 56.1 Resp. ¶ 32.) II. STANDARD OF REVIEW ON MOTION TO EXCLUDE EXPERT TESTIMONY Whether scientific expert testimony is admissible is determined by reference to Federal Rule of Evidence 702 and the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir.2007). Moore, as the proponent of Moriarty’s testimony, bears the burden of proof with respect to whether the admissibility requirements are met. See Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704 (7th Cir.2009). Rule 702 assigns the trial judge the “gate-keeping function” of “ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 589, 597, 113 S.Ct. 2786. The focus of this decision “must be solely on principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595, 113 S.Ct. 2786. The Court applies a three-step analysis for determining the admissibility of expert testimony under Rule 702. See Ervin, 492 F.3d at 904. First, “the witness must be qualified ‘as an expert by knowledge, skill experience, training, or education.’ ” Id. (quoting F.R.E. 702.) Second, “the expert’s reasoning or methodologies underlying the testimony must be scientifically reliable.” Id. Third, the expert’s testimony must be relevant, that is, it must “assist the trier of fact to understand the evidence or to determine a fact in issue.” Id. III. DISCUSSION A. Moriarty’s Methodology to" }, { "docid": "2993114", "title": "", "text": "conception are considered risk factors for mental disease). Plaintiffs bring this suit claiming that Accutane caused or precipitated the onset of Candis Newton’s schizophrenia. They have presented two witnesses to offer expert testimony regarding both general and specific causation, and Defendants move here to exclude this testimony as unqualified and unreliable. II. ANALYSIS A. Standard For Exclusion Of Expert Testimony Federal Rule of Evidence 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact ... a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise, (1) if the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles reliably to the facts of the case. In several now well-known cases, the Supreme Court has articulated the trial court’s gate-keeping function under Rule 702. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). As a preliminary matter, the trial court is required to determine whether a proposed expert is qualified to give expert testimony. Kumho Tire Co., 526 U.S. at 156, 119 S.Ct. 1167. A party seeking to exclude expert testimony because the expert is not qualified must show that the expert does not possess a higher degree of knowledge, skill, experience, training, or education than an ordinary person. See McCulloch v. H.B. Fuller Co., 61 F.3d 1038, 1043 (2d Cir.1995). If the trial court determines that the expert is qualified in the relevant field, then the court must exercise its gate-keeper function as provided in Daubert and Kumho Tire. In Daubert, the Court held that Rule 702 imposes a special obligation upon the trial judge to “ensure that any and all scientific testimony ... is not only relevant but reliable.” Daubert, 509 U.S. at 589-90, 113 S.Ct. 2786. Daubert sets forth four specific factors that the trial court should ordinarily apply" }, { "docid": "13574227", "title": "", "text": "causation is inadmissible or insufficient to sustain a jury verdict in her favor, summary judgment must be granted to defendants. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). Where, as here, essential elements of plaintiffs case are entirely dependent upon expert testimony, the trial judge must act as a “gatekeeper” to ensure that all expert testimony or evidence to be heard at-trial is not only relevant, but also reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-91, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469 (1993).- The Supreme Court and the Court of Appeals for the Third Circuit have set forth nonexclusive guidelines to shape the gatekeeper’s analysis under the relevant rules of evidence: Rules 702, 703 and 403. The crucial portion of the analysis in the case at bar relates to the standards established under Rule 702. Federal Rule of Evidence 702 requires that expert opinion testimony be rendered by a qualified expert, based upon reliable data and methodology. The testimony must be relevant to the case at hand. The Rule provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. The three requirements established by Rule 702 are often referred to as qualification, reliability and fit. See Paoli, 35 F.3d at 741-42. Although .defendants assert that Dr. Panitz’s testimony fails to satisfy any of these requirements, the Court finds that the most critical flaws in her testimony lie in the unreliábility of her diagnostic method, which renders her opinion as to both general and specific causation inadmissible. As Dr. Panitz’s testimony falters on the reliability prong of the Rule" }, { "docid": "9088734", "title": "", "text": "on admissible evidence\" at summary judgment, Lewis v. CITGO Petroleum Corp. , 561 F.3d 698, 704 (7th Cir. 2009), this Court considers the evidentiary disputes before turning to the merits of the case. 1. Motions to Strike the Expert Reports Both parties move to strike their opponent's expert report and exclude the expert's opinions. Plaintiff moves to strike Doug Bania's supplemental expert report as untimely and improper, and to exclude his full report and testimony because he does not address issues in dispute and because he is not a qualified expert. [104] at 4, 6. Defendant seeks to exclude Chad Porter's report and opinions because they are unreliable and conclusory. [107] at 3, 6, 8. Defendant's motion is denied as moot, as explained below. This Court considers Plaintiff's motion next. The admissibility of expert testimony is governed by Federal Rule of Evidence (FRE) 702 and the Supreme Court's decision in Daubert v. Merrell Dow Pharm., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Expert testimony is admissible under FRE 702 if technical or specialized knowledge \"will assist the trier of fact to understand the evidence or to determine a fact in issue.\" Essentially, district courts act as gatekeepers and must ensure that expert testimony \"is not only relevant, but reliable.\" Kumho Tire Co. v. Carmichael , 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (internal quotation marks omitted). Relevant factors in this determination include testing, peer review, error rates, and acceptance by the relevant expert community. See Daubert , 509 U.S. at 593-94, 113 S.Ct. 2786. The reliability inquiry is flexible, however, and not all of these factors will apply in every case. See Kumho , 526 U.S. at 141, 119 S.Ct. 1167. In assessing the admissibility of expert opinions, courts do not focus on \"the ultimate correctness of the expert's conclusions,\" Schultz v. Akzo Nobel Paints, LLC , 721 F.3d 426, 431 (7th Cir. 2013), but \"solely on principles and methodology,\" Daubert , 509 U.S. at 595, 113 S.Ct. 2786. The \"soundness of the factual underpinnings\" and \"correctness of the expert's conclusions\"" }, { "docid": "10585604", "title": "", "text": "question about whether a witness is qualified ... or evidence is admissible.” Fed.R.Evid. 104(a). Rule 702 of the Federal Rules of Evidence governs the admissibility of expert testimony. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Rule 702 provides that [a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify ... if (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Fed.R.Evid. 702. “[T]he Rules of Evidence ... assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Daubert, 509 U.S. at 597, 113 S.Ct. 2786. The subject of an expert’s testimony must be “scientific, technical, or other specialized knowledge,” id,.; therefore, “subjective belief or unsupported speculation” will not suffice. Daubert, 509 U.S. at 589-90, 113 S.Ct. 2786. See also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (trial court’s “gatekeeping” obligation announced in Daubert applies to testimony based on scientific, technical, or other specialized knowledge); Bryte ex rel. Bryte v. Am. Household, Inc., 429 F.3d 469, 477 (4th Cir.2005) (“Daubert aims to prevent expert speculation”). “Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset ... whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.” Daubert, 509 U.S. at 592, 113 S.Ct. 2786 (footnote omitted). “The first prong of this inquiry necessitates an examination of whether the reasoning or methodology underlying the expert’s proffered opinion is reliable,” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 260 (4th" }, { "docid": "5924182", "title": "", "text": "before the court nor in evidence as “facts” are misleading, and thus violate Rule 28(c). Therefore, Zim-mer’s renewed motion to strike is granted, and this court will not consider the first five pages of Fuesting’s amended response. B. Inadequate Daubert Inquiry Proceeding to the merits of the appeal, Zimmer challenges the district court’s denial of its pre-trial motion to exclude Pugh’s expert testimony on causation and defect. The admissibility of scientific expert testimony is governed by Federal Rule of Evidence 702, and in particular Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). “We first undertake a de novo review of whether the district court properly followed the framework set forth in Daubert.” Bradley v. Brown, 42 F.3d 434, 436 (7th Cir.1994). “Provided the district court adhered to Daubert’s parameters, we will not disturb the district court’s findings unless they are manifestly erroneous.” Id. at 436-37. Rule 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education[ ] may testify thereto[,] in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Daubert has construed Rule 702 as requiring the district court to perform a “gate-keeping function” before admitting expert scientific testimony. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). This function is to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Id. Before even considering whether the testimony “will assist the trier of fact to understand or determine a fact in issue,” a district court must make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid.” Id. at 592-93, 113 S.Ct. 2786. To aid courts" }, { "docid": "22847152", "title": "", "text": "reliable, and that the opinion would assist the trier of fact in resolving a disputed issue of material fact — here, causation. Fed.R.Evid. 702; see, e.g., Daubert v. Merrell Dow Pharm., 43 F.3d 1311, 1316 (9th Cir.), cert. denied, 516 U.S. 869, 116 S.Ct. 189, 133 L.Ed.2d 126 (1995) CDaubert II). The district court found all of McDowell’s experts qualified to testify as to the issue of causation, i.e., the nature of the spinal epidural abscess and McDowell’s resulting paralysis. Nevertheless, a “supremely qualified expert cannot waltz into the courtroom and render opinions unless those opinions are based on some recognized scientific method.” See Clark v. Takata Corp., 192 F.3d 750, 759 n. 5 (7th Cir.1999). After evaluating the experts’ proposed testimony and methodology, the district court excluded the causation testimony. Federal Rule of Evidence 702 states: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court impressed a gatekeeping role upon judges, and directed them to “ensure that any and all scientific testimony or evidence is not only relevant, but reliable.” Id. at 589, 113 S.Ct. 2786. Daubert put forth a two-pronged analysis, used to determine the admissibility of the proffered expert testimony on scientific issues under Rule 702. First, the expert testimony must be reliable, so that it must be “scientific,” meaning grounded in the methods and procedures of science, and must constitute “knowledge,” meaning something more than subjective belief or unsupported assumptions. Daubert, 509 U.S. at 590, 113 S.Ct. 2786. Daubert’s reliability prong sets out four guideposts that" }, { "docid": "3297518", "title": "", "text": "warn, and off-label failure to warn, against the manufacturers. Defendants now seek an order pursuant to Federal Rule of Evidence 702 excluding testimony of plaintiffs cigarette-design experts, and an order pursuant to Federal Rule of Civil Procedure 56 granting summary judgment on plaintiffs claims. DISCUSSION A. Motion to Exclude Expert Testimony 1. Legal Standard A witness who has been qualified as an expert by knowledge, skill, experience, training, or education may give an opinion on scientific, technical, or otherwise specialized topics if (1) the expert’s scientific, technical, or other special knowledge will help the trier of fact understand the evidence or determine a fact in issue, (2) the testimony is based upon sufficient facts or data, (3) the testimony is the product of reliable principles and methods, and (4) the witness has applied the principles and methods reliably to the facts of the case.” Fed.R.Evid. 702; see also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The proponent of expert testimony bears the burden of establishing by a preponderance of the evidence that the admissibility requirements are met. See Fed.R.Evid. 702, Advisory Committee Notes. Although there is a presumption of admissibility, Daubert, 509 U.S. at 588, 113 S.Ct. 2786, the trial court is obliged to act as a “gatekeeper” with regard to the admission of expert scientific testimony under Rule 702. Id. at 597, 113 S.Ct. 2786; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Thus, Daubert requires a two-part analysis. First, the court must determine whether an expert’s testimony reflects “scientific knowledge,” whether the findings are “derived by the scientific method,” and whether the work product is “good science” — that is, whether the testimony is reliable and trustworthy. Daubert, 509 U.S. at 590 & n. 9, 593, 113 S.Ct. 2786. Second, the court must determine whether the testimony is “relevant to the task at hand.” Id. at 597, 113 S.Ct. 2786. Scientific evidence is reliable if it is based on an assertion that is grounded in methods of science" }, { "docid": "19311200", "title": "", "text": "form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Fed.R.Evid. 702. The rule reflects the Supreme Court’s decisions in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528 (6th Cir.2008) (citing Fed.R.Evid. 702 advisory committee’s notes, 2000 amend.). Rule 702, Daubert, and Kumho Tire, together, establish that proposed expert testimony is admissible if that testimony satisfies three requirements. In re Scrap Metal Antitrust Litig., 527 F.3d at 528-29. “First, the witness must be qualified by ‘knowledge, skill, experience, training, or education.’ Fed.R.Evid. 702. Second, the testimony must be relevant, meaning that it ‘will assist the trier of fact to understand the evidence or to determine a fact in issue.’ Id. Third, the testimony must be reliable. Id. ” Id. at 529. The Court’s gatekeeper role is to ensure that expert testimony meets these three requirements. See Avery Dennison Corp. v. Four Pillars Enterprise Co., 45 Fed.Appx. 479, 483 (6th Cir.2002) (the Daubert Court held judges are to serve a gatekeeper function with respect to expert testimony). To be relevant, expert testimony must “fit” with the issues to be resolved at trial. See Greenwell v. Boatwright, 184 F.3d 492, 496 (6th Cir.1999). The reliability requirement focuses on the methodology and principles underlying the testimony. Id. The proponent of the evidence—in this case, the Government—must establish admissibility by a preponderance of the evidence. Nelson v. Tennessee Gas Pipeline, Co., 243 F.3d 244, 251 (6th Cir.2001) (citing Daubert, 509 U.S. at 592 n. 10, 113 S.Ct. 2786). B. Dr. Barkun’s testimony is largely irrelevant One of Defendants’" }, { "docid": "20091956", "title": "", "text": "trial.” Id. The admissibility of expert testimony is analyzed under Rule 702 of the Federal Rules of Evidence, which provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed.R.Evid. 702. The proponent of expert testimony bears the burden of establishing by a preponderance of the evidence that Rule 702’s requirements have been met. See, e.g., Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593 n. 10, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); United States v. Williams, 506 F.3d 151, 160 (2d Cir.2007). However, “the district court is the ultimate ‘gatekeeper.’ ” Williams, 506 F.3d at 160. Under Daubert and its progeny, the district court must perform this gate-keeping function to ensure that “any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589, 113 S.Ct. 2786. District courts have wide discretion in determining whether proffered expert testimony is admissible. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Berk v. St. Vincent’s Hosp. & Med. Ctr., 380 F.Supp.2d 334, 351 (S.D.N.Y.2005). The Second Circuit has set forth a three-part test for the admissibility of expert testimony under Rule 702, in which the court must determine (1) whether the witness is qualified to be an expert; (2) whether the opinion is based on reliable data and methodology; and (3) whether the expert’s testimony on a particular issue will assist the trier of fact. See Nimely v. City of New York, 414 F.3d 381, 396-97 (2d Cir.2005). With respect to reliability, “the district court should consider the indicia of reliability identified in Rule 702," }, { "docid": "20745643", "title": "", "text": "Court’s opinion in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).” Lewis v. CITGO Petroleum, Corp., 561 F.3d 698, 705 (7th Cir.2009). “The Federal Rules of Evidence define an ‘expert’ as a person who possesses ‘specialized knowledge’ due to his ‘skill, experience, training, or education’ that ‘will assist the trier of fact to understand the evidence or to determine a fact in issue.’ ” Banister v. Burton, 636 F.3d 828, 831 (7th Cir.2011) (quoting Fed.R.Evid. 702). Rule 702 also requires that: (1) the testimony must be based upon sufficient facts or data; (2) it must be the product of reliable principles and methods; and (3) the witness must have applied the principles and methods reliably to the facts of the case. Zamecnik v. Indian Prairie Sch. Dist. No. 201, 636 F.3d 874, 881 (7th Cir.2011) (quoting Fed.R.Evid. 702). “The district court functions as a gatekeeper with respect to testimony proffered under Rule 702 to ensure that the testimony is sufficiently reliable to qualify for admission.” Mihailovich v. Laatsch, 359 F.3d 892, 918 (7th Cir.2004) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999)). District courts must employ a three-part analysis before admitting expert testimony: (1) the expert must be qualified as an expert by knowledge, skill, experience, training, or education; (2) the expert’s reasoning or methodology underlying his testimony must be scientifically reliable; and (3) the expert’s testimony must assist the trier of fact in understanding the evidence or to determine a factual issue. See Myers v. Illinois Central R.R. Co., 629 F.3d 639, 644 (7th Cir.2010); see also United States v. Pansier, 576 F.3d 726, 737 (7th Cir.2009) (“To determine reliability, the court should consider the proposed expert’s full range of experience and training, as well as the methodology used to arrive [at] a particular conclusion.”). As the Seventh Circuit instructs, “ ‘[t]he focus of the district court’s Daubert inquiry must be solely on principles and methodology, not on the conclusions they generate.’ ” Winters v. Fru-Con Inc., 498 F.3d 734, 742 (7th" }, { "docid": "296653", "title": "", "text": "Statler and grants in part and denies in part its motion to exclude the testimony of Robert Wright. The Court also grants in part and denies in part Plaintiffs motions to exclude the testimony of Joseph Sala and the testimony of Rose Ray. Legal Standard The admissibility of expert testimony is governed by Federal Rule of Evidence 702 (“Rule 702) and the Supreme Court’s seminal case Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). By its terms, Rule 702 allows the admission of testimony by an “expert,” someone with the requisite “knowledge, skill, experience, training, or education,” to help the trier of fact “understand the evidence or determine a fact in issue.” Fed.R.Evid. 702. Experts are only permitted to testify, however, when their testimony is (1) “based upon sufficient facts or data; [2] the testimony is the product of reliable principles and methods; and [3] the witness has applied the principles and methods reliably to the facts of the case.” Id. Daubert requires the district court to act as the evidentiary gatekeeper, ensuring that Rule 702’s requirements of reliability and relevance are satisfied before allowing the finder of fact to hear the testimony of a proffered expert. See Daubert, 509 U.S. at 589, 113 S.Ct. 2786; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147-49, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir.2012). District courts have broad discretion in determining the admissibility of expert testimony. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997); Lapsley, 689 F.3d at 810 (“we ‘give the district court wide latitude in performing its gate-keeping function and determining both how to measure the reliability of expert testimony and whether the testimony itself is reliable’”) (quoting Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 894 (7th Cir.2011)). Before admitting expert testimony, district courts employ a three-part analysis: (1) the expert must be qualified as an expert by knowledge, skill, experience, training, or education; (2) the expert’s reasoning or methodology" }, { "docid": "16104173", "title": "", "text": "to present their oral arguments. DISCUSSION A. Applicable Legal Principles 1. Expert Testimony Generally A witness qualified as an expert will be permitted to testify if his or her testimony “ ‘will assist the trier of fact to understand the evidence or to determine a fact in issue.’ ” United States v. Lumpkin, 192 F.3d 280, 289 (2d Cir.1999) (quoting Fed.R.Evid. 702). To be admissible, expert testimony must be both relevant and reliable. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). As the Court explained in Daubert, the trial judge’s task is to “ensur[e] that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Id. at 597, 113- S.Ct. 2786. The trial judge’s “gatekeeping” obligation applies not only to “scientific” testimony but to “technical” and “other specialized” knowledge as well. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In 2000, in response to the Court’s decision in Daubert and decisions that followed, including Kumho Tire, Congress amended Rule 702 of the Federal Rules of Evidence. As amended, Rule 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed.R.Evid. 702. The proponent of expert testimony must establish its admissibility by a preponderance of the evidence. See Astra Aktiebolag v. Andrx Pharms., Inc., 222 F.Supp.2d 423, 487 (S.D.N.Y.2002) (citing Fed.R.Evid. 104(a) and Bourjaily v. United States, 483 U.S. 171, 175-76, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)); Cayuga Indian Nation v. Pataki, 83 F.Supp.2d 318, 322 (N.D.N.Y.2000) (“[I]t is the proponent’s burden ... to establish admissibility, rather" }, { "docid": "7419948", "title": "", "text": "1995-2005 and were not promoted to GS-15 on the first bid list on which they bid; but excluding Special Agents who served as an Assistant Director, Deputy Director, or the Director of the Secret Service during the class period. Pis.’ Mot. for Class Cert, at 2. In support of their motion for class certification, the plaintiffs offer the report of statistician Dr. Charles Mann, which concludes that the MPP process had an adverse impact on African-American SAs applying for promotion to GS-14 and GS-15 positions during the class period (i.e., 1995 to 2004 for promotions to GS-14 positions and 1995 to 2005 for promotions to GS-15 positions) and a four-year background period (i.e., 1991 to 1994). The defendant moves to exclude Dr. Mann’s testimony under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), arguing that Dr. Mann’s expert opinions are unreliable and irrelevant. DISCUSSION I. MOTION TO EXCLUDE EXPERT TESTIMONY Rule 702 provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Fed.R.Evid. 702. Under Rule 702, district courts are gatekeepers of expert evidence. See Daubert, 509 U.S. at 589, 113 S.Ct. 2786. A court must determine as an initial matter whether the proffered witness is qualified to give the expert opinion he seeks to offer. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 156, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Daubert, 509 U.S. at 589, 113 S.Ct. 2786. Then, a court must “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at" }, { "docid": "21801079", "title": "", "text": "The Court has subject matter jurisdiction over this action under -28 U.S.C. § 1332 as there is complete diversity between the parties and the amount in controversy exceeds the sum of $76,000.00. III. DISCUSSION A. Defendant’s Motion to Exclude Plaintiffs’ Expert Witness . Rules 702 and 104(a) of the Federal Rules of Evidence govern the admissibility of expert testimony. See Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 250 (6th Cir. 2001) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). Rule 702 provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Fed. R. Evid. 702. Under Daubert, Rules 702 and 104(a) require that the trial court act as a gatekeeper and ensure that expert testimony is both relevant and reliable. Dau-bert, 509 U.S. at 689, 113 S.Ct. 2786; Conwood Co. v. U.S. Tobacco Co., 290 F.3d 768, 792 (6th Cir. 2002). The test for relevancy is one of “fit,” meaning the testimony must be sufficiently related to the facts of the case such that it will aid the trier of fact in understanding the evidence or determining a fact in issue. Daubert, 509 U.S. at 591, 113 S.Ct. 2786. When determining reliability, a key consideration for the trial court in carrying out its gatekeeping function is “whether the reasoning or methodology underlying the’ testimony is sufficiently valid ...\" Daubert, 509 U.S. at 592-93, 113 S.Ct. 2786, The Supreme Court, however, has advised that the inquiry is flexible and that' “[t]he focus ... must be solely on principles and methodology, not on the conclusions they generate.” Id. at" }, { "docid": "13056583", "title": "", "text": "a visible defect in the track in time to avoid the derailment. THE EXPERT AFFIDAVITS The plaintiffs offered the affidavits of three experts. The court excluded the proposed testimony of all three. Plaintiffs contend that the district court mishandled its gatekeeping function for the admission of testimony offered under Federal Rule of Evidence 702 as set forth in Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In Daubert, the Court charged trial judges with the responsibility of acting as gatekeepers to “ ‘ensure that any and all scientific testimony ... is not only relevant, but reliable,’ ” and the Court in Kumho Tire clarified that this gatekeeper function applies to all expert testimony, not just testimony based in science. See Kumho Tire, 526 U.S. at 147, 119 S.Ct. 1167 (quoting Daubert, 509 U.S. at 589, 113 S.Ct. 2786). Rule 702, which governs the admissibility of expert opinion testimony, states: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” First, Rule 702 requires that the evidence “assist the trier of fact,” or in other words, that it be relevant. Daubert, 509 U.S. at 591, 113 S.Ct. 2786. Second, the rule demands that the evidence be reliable. See id. at 590, 113 S.Ct. 2786. Rule 702 requires that expert testimony relate to scientific, technical, or other specialized knowledge, which does not include unsupported speculation and subjective beliefs. See id. Plaintiffs argue, with some support in the record, that the court rejected all the proffered affidavits without any analysis of the experts’ qualifications, without examination of the basis of the experts’ proffered opinions, and without any attempt to determine whether their opinions met the Kumho Tire test of the rigors of the professional discipline. See Kumho Tire, 526 U.S." }, { "docid": "7790273", "title": "", "text": "Exhibit 244 violates Federal Rule of Evidence 408. See Ramada Dev. Co., 644 F.2d at 1107 (affirming trial court’s refusal to permit the introduction of an architect’s report prepared to facilitate settlement negotiations). Therefore, CPH’s motion in limine [Doc. No. 89-2] to exclude Defendant’s Exhibit 244 is GRANTED, and the court will not consider this letter in reaching its conclusions of law. As its second motion in limine, CPH has moved to exclude the expert testimony of Dr. Shahrokh Rouhani. CPH submits this motion on the ground that Dr. Rouhani’s expert testimony fails to meet the standards for relevancy and reliability required by Federal Rule of Evidence 702 and the Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 594-95, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). RaceTrac first responds by arguing that CPH’s Daubert motion is untimely, and thus, should be denied by the court. RaceTrac goes on to assert that Dr. Rouhani’s testimony is admissible because it is both relevant and reliable. Federal Rule of Evidence 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert .. may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Fed.R.Evid. 702. In interpreting the requirements of Rule 702, the Supreme Court in Daubert established that scientific expert testimony must be both relevant and reliable to be admissible. 509 U.S. at 594-95, 113 S.Ct. 2786. Accordingly, trial courts are to act as “gatekeepers” and examine an expert’s proposed testimony to ensure it meets both requirements. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 145, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Likewise, the Eleventh Circuit has held that expert testimony is admissible only “if (1) the expert is qualified to testify competently; (2) the expert" } ]

[ { "docid": "12956218", "title": "", "text": "HARTZ, Circuit Judge. On April 14, 2000, Petitioner Khalid Khalayleh, a resident alien at the time, was convicted of bank fraud. An immigration judge ruled that Petitioner’s offense constituted an “aggravated felony,” as defined by the Immigration and Nationality Act, and ordered his removal from the United States in accordance with 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”). Petitioner’s appeal to the Board of Immigration Appeals was dismissed. He then petitioned this court for relief. Respondent Immigration and Naturalization Service (INS) moves to dismiss the petition under 8 U.S.C. § 1252(a)(2)(C), which states that “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed ... [an aggravated felony].... ” But cf. INS v. St. Cyr, 533 U.S. 289, 293-97, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (permitting review of petition for habeas corpus by alien convicted of aggravated felony). We grant the motion. Although we ultimately hold that we do not have jurisdiction to review Petitioner’s petition, we do have jurisdiction to determine the applicability of the jurisdictional bar of § 1252(a)(2)(C). See Tapia Garda v. INS, 237 F.3d 1216, 1220 (10th Cir.2001). Thus, we must determine whether Petitioner’s conviction was for an aggravated felony. Ironically, our resolution of the jurisdictional issue also resolves the merits of the petition that we lack jurisdiction to review. The statutory definition of “aggravated felony” includes a number of offenses. The language relied upon by the INS is as follows: “The term ‘aggravated felony’ means ... an offense that ... involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.... ” 8 U.S.C. § 1101(a)(43)(M)(i). Petitioner does not dispute that he was convicted of an offense that “involves fraud.” His challenge relates to the scope of the offense and the resulting “loss to the victim or victims.” Petitioner’s conviction was founded on a guilty plea to one count of an indictment in accordance with a plea agreement. The indictment contains four counts charging" } ]

[ { "docid": "22333370", "title": "", "text": "a notice to appear, charging Ramtulla with being removable under 8 U.S.C.A. § 1227(a)(2)(A)®, (in), for conviction of a crime of moral turpitude and an aggravated felony. Ramtulla sought a § 212(h) waiver, 8 U.S.C.A. § 1182(h). The immigration judge (IJ) held that Ramtulla was ineligible for such relief as a lawful permanent resident guilty of an aggravated felony. The Board of Immigration Appeals upheld the IJ. Ramtulla petitions this court for review of the Board’s decision. II. We conclude that we lack jurisdiction to review the question on direct review. Under 8 U.S.C. § 1252(a)(2)(C), we have no jurisdiction to review a final order of removal of an alien removable for having committed an aggravated felony. Under this provision, we have jurisdiction only to review factual determinations that trigger the jurisdiction-stripping provision, such as whether Ramtulla was an alien and whether she has been convicted of an aggravated felony. Calcano-Martinez v. INS, 533 U.S. 348, 350, n. 2, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001); Lewis v. INS, 194 F.3d 539, 542 (4th Cir.1999). Ramtulla concedes that she is an alien living in the United States as a lawful permanent resident. The record establishes that she was convicted of concealment of merchandise and sentenced to two years imprisonment, all suspended, and subject to probation for a period of two years. A theft or burglary offense with a term of imprisonment of at least one year is an aggravated felony. 8 U.S.C.A. § 1101(a)(43)(G). Thus, this court has no jurisdiction to review the equal protection issue raised in Ramtulla’s brief. Our conclusion is unaffected by Ramtulla’s argument that we have jurisdiction under § 1252(a)(2)(C) to review substantial constitutional challenges. Even assuming, without deciding, that our jurisdiction under § 1252(a)(2)(C) includes review of substantial constitutional challenges, see Calcano-Martinez, 533 U.S. at 350, n. 2, this claim does not pres ent such a substantial issue. See Lukowski v. INS, 279 F.3d 644, 647-48 (8th Cir.2002) (holding a similar equal protection argument lacks merit); Moore v. Ashcroft, 251 F.3d 919, 924-26 (11th Cir.2001) (same); Lara-Ruiz v. INS, 241 F.3d 934, 946-48 (7th Cir.2001)" }, { "docid": "23476237", "title": "", "text": "for review and therefore dismiss it. DISCUSSION I. Jurisdiction The INA provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). For purposes of this section, an “aggravated felony” includes “murder, rape, or sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, Div. C., Title III-B, 110 Stat. 3009-546 (Sept. 30, 1996) (“IIRI-RA”), we cannot review any final removal order against an alien who is deportable because he was convicted of an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C). This jurisdictional bar arises if: (1) the petitioner is an alien; and (2) he is deport- able under one of the offenses enumerated in 8 U.S.C. § 1101(a)(43). See Bell v. Reno, 218 F.3d 86, 89 (2d Cir.2000), cert. denied, 531 U.S. 1081, 121 S.Ct. 784, 148 L.Ed.2d 680 (2001). However, “[w]e have jurisdiction to determine whether this jurisdictional bar applies, and we may thus review whether [Mugalli] satisfies these jurisdictional facts.” Id. Mugalli concedes that he is an alien. “The jurisdictional inquiry thus merges with the question on the merits: If [Mu-galli] is in fact removable because he was convicted of an aggravated felony ..., we must dismiss his petition for lack of jurisdiction.” Sui v. INS, 250 F.3d 105, 110 (2d Cir.2001). We are therefore required to consider Mugalli’s substantive arguments that his New York conviction is not an aggravated felony under the INA and that his conviction has been expunged for purposes of the immigration laws by the Certificate of Relief. II. Standard of Review The “determination of our jurisdiction is exclusively for the court to decide.” Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir.2000), cert. denied, 531 U.S. 1069, 121 S.Ct. 757, 148 L.Ed.2d 660 (2001). In this appeal, our jurisdiction depends on the definition of the phrase “aggravated felony” as used in the INA, a statute that is administered by, among others, the BIA. “As is well-established, Chevron [U.S.A Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837," }, { "docid": "10053697", "title": "", "text": "493 (1946). II. Judicial review of removal orders under the INA has been significantly restricted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009. IIRIRA provides that courts have no jurisdiction to review a final order of removal under the aggravated felony provision, 8 U.S.C. § 1252(a)(2)(C), but the circuit courts which have considered the issue all agree that there is jurisdiction to decide whether the offense of conviction is an aggravated felony. See Francis v. Reno, 269 F.3d 162,165 (3d Cir.2001). See also Dalton, 257 F.3d at 203 (2d Cir.); Bazan-Reyes, 256 F.3d at 604 (7th Cir.); Tapia Garcia v. INS, 237 F.3d 1216, 1220 (10th Cir.2001); Wireko v. Reno, 211 F.3d 833, 835 (4th Cir.2000). Although the Supreme Court has not yet decided the issue, the government conceded in a ease before it that appellate courts have jurisdiction over petitions which challenge whether a particular felony meets the statutory definition. Calcano-Marbinez v. INS, 533 U.S. 348, 350 n. 2, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001). The respondents make the same concession in this case, and we conclude that we have jurisdiction to decide whether criminal vehicular homicide is an aggravated felony for purposes of the INA. The INA provides various grounds for deportation of an alien, one of which is commission of an aggravated felony. 8 U.S.C. § 1227(a)(2)(A)(iii). For a felony to be an aggravated felony under the INA, it must be an offense punishable by a least one year and a crime of violence as defined in the criminal code at 18 U.S.C. § 16. See 8 U.S.C. § 1101(a)(43)(F). Section 16 defines a crime of violence in two ways as: (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. In order" }, { "docid": "22154268", "title": "", "text": "libraries do not exist in Mexico. Moreover, the IJ expressly told Mendez-Alcaraz that he “could be wrong on this. There is a significant legal issue,” before asking if Mendez-Alearaz wanted to appeal. We further note that Mendez-Alcaraz had counsel then and now. PETITION DENIED. . Or.Rev.Stat. § 163.427. . 8 U.S.C. § 1227(a)(2)(A)(iii). . Pub.L. No. 101-649, § 511, 104 Stat. 5052 (amending 8 U.S.C. § 1182(c)); INS v. St. Cyr, 533 U.S. 289, 297, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); United States v. Velasco-Medina, 305 F.3d 839, 850 (9th Cir.2002). .8 U.S.C. § 1101(a)(43)(A). . See 8 C.F.R. § 1003.2(d) (\"A motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings subsequent to his or her departure from the United States.”); 8 C.F.R. § 1003.23(b)(1) (same). . 8 C.F.R. § 1003.23(b)(1). . See Aragon-Ayon v. INS, 206 F.3d 847, 853 (9th Cir.2000) (\"Congress intended the 1996 amendments to make the aggravated felony definition apply retroactively to all defined offenses whenever committed, and to make aliens so convicted eligible for deportation notwithstanding the passage of time between the crime and the removal order.\"). . 8 U.S.C. § 1105a(c) (1994), as modified by IIRIRA § 309(c), Pub.L. No. 104-208, 110 Stat. 3009; see also Contreras-Aragon v. INS, 852 F.2d 1088, 1091 n. 1 (9th Cir.1988), superseded by statute, Pub.L. No. 104-208, 110 Stat. 3009, as recognized in Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166, 1170-71 (9th Cir. 2003). . 8 U.S.C. § 1252(d). . 8 U.S.C. § 1105a(c)(1994), as modified by IIRIRA § 309(c), Pub.L. No. 104-208, 110 Stat. 3009 (providing for the effective date of the permanent rules). . 8 U.S.C. § 1252(d). . Zazueta-Carrillo, 322 F.3d at 1171. . Id. Accord Moore v. Ashcroft, 251 F.3d 919, 922 (11th Cir.2001) (holding that, after IIRI-RA, a petitioner's removal from the United States does not render the case moot); Tapia Garcia v. INS, 237 F.3d 1216, 1217 (10th Cir.2001) (holding that \"deportation no longer forecloses judicial review”). . The dissent raises issues" }, { "docid": "22890903", "title": "", "text": "order of removal against an alien who is removable by reason of having committed a criminal offense covered in section ... 1227(a)(2)(A)(iii).” We have recently explained that this jurisdiction-stripping provision comes into play only when two facts exist: “(1) the petitioner is an alien (2) who is deportable by reason of having been convicted of one of the enumerated offenses.” Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir.2001). In keeping with the views of several other circuit courts, we held that we have jurisdiction “to determine whether these jurisdictional facts are present.” Id.; Tapia Garcia v. INS, 237 F.3d 1216, 1220-21 (10th Cir.2001); Mahadeo v. Reno, 226 F.3d 3, 9 (1st Cir.2000), cert. denied, 533 U.S. 949, 121 S.Ct. 2590, 150 L.Ed.2d 749 (2001); Bell v. Reno, 218 F.3d 86, 89-90 (2d Cir.2000), cert. denied, 531 U.S. 1081, 121 S.Ct. 784, 148 L.Ed.2d 680 (2001); Santos v. Reno, 228 F.3d 691, 597 n. 11 (5th Cir.2000); Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir.2000); Lewis v. INS, 194 F.3d 639, 542 (4th Cir. 1999); Diakite v. INS, 179 F.3d 553, 554 (7th Cir.1999) (per curiam). In this case, Valansi does not dispute that she is an alien. Instead she argues that her conviction for embezzlement of bank funds under 18 U.S.C. § 656 does not qualify as an aggravated felony as defined in 8 U.S.C. § U01(a)(43)(M)(i), and that she therefore cannot be deported pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). If she is right, judicial review is not precluded, and the removal order will be vacated for failing to allege a removable offense. If she is wrong, 8 U.S.C. § 1252(a)(2)(C) deprives us of jurisdiction to inquire any further into the merits, and the removal order will stand. Because we are determining a purely legal question, and one that governs our own jurisdiction, we review de novo whether the petitioner’s conviction qualifies as an aggravated felony. See, e.g., Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir.2000), cert. denied, 531 U.S. 1069, 121 S.Ct. 757, 148 L.Ed.2d 660 (2001) (“Reviewing the matter de novo, we nevertheless conclude that" }, { "docid": "5492893", "title": "", "text": "a conviction that pre-dates the repeal of Section 212(c), but [who was] convicted and placed in removal proceedings after the repeal of the statute.” Id. at 37. According to the district court, it is the date of conviction, not the date of the criminal conduct or of entry of a plea of not guilty, that controls. The court reasoned that there are no fairness concerns when the defendant elects to proceed to trial — as opposed to enters into a plea agreement — before the repeal of section 212(c). Id. at 36. Evangelista appeals. DISCUSSION I. Conviction of an Aggravated Felony “Any alien who is convicted of an aggravated felony at any time after admission [to the United States] is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). The INS “has the burden of establishing [deportability] by clear and convincing evidence,” which must be “reasonable, substantial, and probative.” Id. § 1229a(c)(3)(A). We have no jurisdiction to review a final order of removal against an alien who is removable for having committed an aggravated felony. Id. § 1252(a)(2)(C). But “[w]e do retain jurisdiction ... to review the question whether, as a matter of law, [a petitioner] committed an ‘aggravated felony’ under [the INA].” Dalton v. Ashcroft, 257 F.3d 200, 203 (2d Cir.2001). We therefore have jurisdiction to review whether Evangelista was convicted of an aggravated felony under the INA. The INA sets forth a list of offenses that qualify as types of aggravated felonies. Among them is “an offense that ... is described in section 7201 of Title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000.” 8 U.S.C. § 1101(a)(43)(M)(ii). 26 U.S.C. § 7201 in turn criminalizes “willful[] attempts in any manner to evade or defeat any tax imposed by [Title 26] or the payment thereof.” We therefore must decide whether Evangelista’s conviction under 26 U.S.C. § 7201 falls within the scope of section 1101(a)(43)(M)(ii), thus rendering him deportable. A. Standard of Review “On appeal from the denial of a habeas petition brought pursuant to 28 U.S.C. § 2241, we review the merits of the petition de" }, { "docid": "16137881", "title": "", "text": "of law: whether N.Y.P.L. § 263.05 constitutes an “aggravated felony” for purposes of 8 U.S.C. § 1227(a)(2)(A)(iii). We dismiss the petition. I An alien who has committed an aggravated felony can be removed from the country upon the order of the Attorney General. See 8 U.S.C. § 1227(a)(2)(A)(iii). We lack jurisdiction to review any final order removing an alien who committed an aggravated felony covered in § 1227(a)(2)(A)(iii). See § 1252(a)(2)(C). We retain jurisdiction, however, to determine constitutional claims and questions of law that arise from BIA proceedings. See § 1252(a)(2)(D). Whether an offense is an aggravated felony for purposes of the immigration laws is a question of law. See Blake v. Gonzales, 481 F.3d 152, 155-56 (2d Cir.2007). We review these legal and constitutional issues de novo. Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir.2007). One category of aggravated felony is “sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). Oouch was charged with removability on that basis. We therefore consider, de novo, whether a violation of N.Y.P.L. § 263.05 constitutes “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A), with Chevron deference as to the BIA’s construal of the Immigration and Nationality Act (“INA”), see Joaquin-Porras v. Gonzales, 435 F.3d 172, 178 (2d Cir.2006). The inquiry determines our jurisdiction: If Oouch’s conviction is an aggravated felony, we must dismiss the petition for lack of jurisdiction; if not, we may exercise jurisdiction and vacate the order of removal. See Sui v. INS, 250 F.3d 105, 110 (2d Cir.2001). A The BIA is charged with interpreting and enforcing the INA, including 8 U.S.C. § 1101(a)(43)(A). See § 1103(a)(1); 8 C.F.R. § 1003.1. The BIA’s interpretation of the INA is entitled to the deference' prescribed in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Joaquin-Porras, 435 F.3d at 178; Sui, 250 F.3d at 111-12. Congress provided no further definition of the term “sexual abuse of a minor” in § 1101(a)(43)(A). Since the term is not self-defining and is of uncertain reach, we cannot conclude in this case that" }, { "docid": "16445784", "title": "", "text": "tax evasion) in which the revenue loss to the Government exceeds $10,000; ... 8 U.S.C. § 1101(a)(43)(M)(i) & (ii). The petitioners moved to terminate removal proceedings on the ground that a conviction for violating section 7206(1) of the Internal Revenue Code was not an aggravated felony under either subsection (M)(i) or (M)(ii). The immigration judge denied their motion, ruling in July 1998 that petitioners’ convictions rendered them removable under either subsection. App. 47. He ordered each petitioner “removed to the Republic of (South) Korea.” App. 48. On December 2, 2002, the Board of Immigration Appeals affirmed the immigration judge’s decision without opinion, making it the final agency decision. See 8 C.F.R. § 1003.1(e)(4). The petitioners seek review. II. DISCUSSION On appeal, the petitioners challenge the immigration judge’s order of removal on the ground that them convictions for violating 26 U.S.C. § 7206(1) do not qualify as aggravated felonies under either 8 U.S.C. § 1101(a)(43)(M)(i) or (ii), and, therefore, that they are not removable pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). As the government now concedes that subsection (M)(ii) does not apply, we need only consider whether the petitioners’ convictions meet the definition of aggravated felony in subsection (M)(i). A. Jurisdiction As an initial matter, we consider the government’s contention that under 8 U.S.C. § 1252(a)(2)(C) we lack jurisdiction to review the petitioners’ order of removal. That provision states that “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1227(a)(2)(A)(iii).” As recently explained, however, this jurisdiction-stripping provision comes into play only when two facts exist: “(1) the petitioner is an alien (2) who is deportable by reason of having been convicted of one of the enumerated offenses.” Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir.2001). We necessarily have jurisdiction “to determine whether these jurisdictional facts are present.” Id.; see Valansi v. Ashcroft, 278 F.3d 203, 207 (3d Cir.2002). We are thus not precluded from reviewing the petitioners’ argument that they have not been convicted of an “enumerated offense.” If the petitioners" }, { "docid": "11353248", "title": "", "text": "non-U.S. citizens in the aftermath of September 11, 2001. Upon processing, Zaidi was issued a Notice of Intent to Issue a Final Administrative Removal Order based on his prior conviction. On March 6, 2003, a Final Administrative Removal Order was served upon Zaidi, ordering him to be removed to Pakistan. Zaidi now petitions this court for review of the removal order. II. DISCUSSION A. Standard of Review The key question before the court is whether Zaidi’s conviction for sexual battery constitutes an aggravated felony such that this court is deprived of jurisdiction to review the final removal order. See 8 U.S.C. § 1252(a)(2)(C) (2000) (“Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section ... 1227(a)(2)(A)(iii).... ”); 8 U.S.C. § 1227(a)(2)(A)(iii) (2000) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”); Nehme v. INS, 252 F.3d 415, 420 (5th Cir.2001) (“Congress has specifically commanded in 8 U.S.C. § 1252(a)(2)(C) that no court has jurisdiction to review deportation orders for aliens who are removable be cause they were convicted of aggravated felonies.”). This court reviews questions of jurisdiction de novo. Nehme, 252 F.3d at 420. B. “Sexual Battery” as a “Crime of Violence” Under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546 (“IIRIRA”), this court retains jurisdiction to review jurisdictional facts. Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir.2000). Specifically, this court always has jurisdiction to determine whether the petitioner is an alien who is deportable for committing an offense that bars this court’s review. Smalley v. Ashcroft, 354 F.3d 332, 335 (5th Cir.2003) (citing Nehme, 252 F.3d at 420). Thus, this court must consider whether Zaidi’s conviction for sexual battery under Oklahoma law constitutes an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). The term “aggravated felony” is defined for the purposes of the immigration statutes in 8 U.S.C. § 1101(a)(43) and includes a variety of offenses. See 8 U.S.C." }, { "docid": "23194287", "title": "", "text": "an alien who is removable by reason of having committed a criminal offense covered in section 1227(a)(2)(A)(iii).” 8 U.S.C. § 1252(a)(2)(C). However, the REAL ID Act of 2005 in turn provides that “[njothing in [8 U.S.C. § 1252(a)(2)(C)] ... shall be construed as precluding review of constitutional claims or questions of law.” REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (2005) (codified at 8 U.S.C. § 1252(a)(2)(D)). Moreover, in Balogun v. United States Attorney General, 425 F.3d 1356, 1359-60 (11th Cir.2005), this Court determined that the question of whether a conviction qualified as an aggravated felony under a different immigration provision was a question of law within our jurisdiction. Accordingly, we conclude that we have subject matter jurisdiction to review Hernandez’s claims in his petition that his state conviction was not an aggravated felony for purposes of 8 U.S.C. § 1227(a) (2)(A) (iii). B. “Crime of violence” As discussed, an alien who has been convicted of an aggravated felony is removable. 8 U.S.C. § 1227(a)(2)(A)(iii). The term “aggravated felony” includes a “crime of violence,” as defined by 18 U.S.C. § 16, for which the term of imprisonment is at least one year. 8 U.S.C. § 1101(a)(43)(F). As relevant to this case, 18 U.S.C. § 16 defines a “crime of violence” as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a). In order to determine whether Hernandez’s simple battery conviction qualifies as a “crime of violence” under 18 U.S.C. § 16(a), we must look to the “elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner’s crime.” Leocal v. Ashcroft, 543 U.S. 1, 7, 125 S.Ct. 377, 381, 160 L.Ed.2d 271 (2004). Georgia’s simple battery statute in § 16-5-23(a) provides that “[a] person commits the offense of simple battery when he or she either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another.” Ga.Code Ann. §" }, { "docid": "20649439", "title": "", "text": "by section 1227(a)(2)(A)(ii) of this title for which both predictate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title. (emphasis added). In 2001 we held that this provision left us with jurisdiction only to determine our jurisdiction; that is, once we determined that the petitioner was (i) an alien (ii) deportable (iii) by reason of having committed an aggravated felony, our jurisdiction was at an end and we would dismiss the petition for review. See Tapia Garcia v. INS, 237 F.3d 1216, 1220 (10th Cir.2001). But the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, partially restored our jurisdiction. Now, new subparagraph (D) of § 1252(a)(2) overrides subparagraph (C) so that we can review “constitutional claims or questions of law” raised in a petition for review of a removal order, even in an aggravated-felony case. 8 U.S.C. § 1252(a)(2)(D); see Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3rd Cir.2005) (“This now permits all aliens, including criminal aliens, to obtain review of constitutional claims and questions of law upon the filing of a petition for review....”). Because Mr. Vargas’s challenge to the characterization of his conviction raises such a question of law, we have jurisdiction to review it. See Ali v. U.S. Att’y Gen., 443 F.3d 804, 809 (11th Cir.2006) (reviewing under subparagraph (D) a claim that guilty plea in state court did not constitute a “conviction” for purposes of the INA). The definition of aggravated felony in 8 U.S.C. §• 1101(a)(43)(A) includes “sexual abuse of a minor.” Although Mr. Vargas challenges the BIA’s classification of his conviction as sexual abuse of a minor, he does not challenge the BIA’s definition of sexual abuse of a minor, which is borrowed from 18 U.S.C. § 3509. That statute defines sexual abuse to include “the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children.” 18 U.S.C. § 3509(a)(8); see Matter of" }, { "docid": "16363863", "title": "", "text": "Act violation amounted to a deport-able offense under 8 U.S.C. § 1227(a)(2)(B)(i). The petitioner’s remaining point goes to the BIA’s determination that his Travel Act violation constituted a drug-trafficking crime, and, as such, an aggravated felony under 8 U.S.C. § 1101(a)(43)(B). In the last analysis, this argument also depends on whether the Travel Act violation can be construed as relating to a controlled substance. Consequently, what we already have said controls here. Courts define “illicit trafficking” as illegally “trading, selling or dealing” in specified goods. Kuhali v. Reno, 266 F.3d 93, 107 (2d Cir.2001). Carrying on a business enterprise that deals in narcotics is within this rubric. Thus, the BIA correctly ruled that the petitioner’s Travel Act violation constituted an aggravated felony. See 8 U.S.C. § 1101(a)(43)(B) (listing illicit trafficking in a controlled substance as an aggravated felony). III. CONCLUSION We need go no further. For the reasons stated herein, the petitioner was appropriately held deportable under 8 U.S.C. §§ 1227(a)(2)(B)®, 1227(a)(2)(A)(iii). Moreover, he was ineligible, as a matter of law, for discretionary relief. See id § 1182(h). The petition for review must, therefore, be denied and dismissed. It is so ordered. . On March 1, 2003, the INS ceased to exist as an agency within the Department of Justice. Its enforcement functions were transferred to the Department of Homeland Security. See Homeland Security Act of 2002, Pub.L. No. 107-296, 116 Stat. 2135 (2002). Because the events at issue here predate that reorganization, we continue to refer to the INS in this opinion. . An alien ordinarily may seek adjustment of status to avoid removal. 8 U.S.C. § 1255(a). Typically, that relief is at the discretion of the Attorney General. Id. § 1182(h). Such a waiver cannot be granted, however, if the petitioner has committed a drug-trafficking offense or an aggravated felony. Id. . Where Congress has entrusted an administrative agency with discretion and the governing statute is silent or ambiguous anent a particular issue, the agency's reading of the statute ordinarily will be upheld if it is reasonable. See INS v. Cardoza-Fonseca, 480 U.S. 421, 448-49, 107 S.Ct. 1207," }, { "docid": "23475961", "title": "", "text": "Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Second, based on our review of the criminal information and abstract of judgment of Martinez’s prior conviction, we also conclude that the conviction does not qualify as a generic theft offense under the modified categorical approach approved by Taylor. Although, under 8 U.S.C. § 1252(a)(2)(C), we lack jurisdiction to review a final order of removal against an alien who is removable based on his conviction for an aggravated felony, we retain jurisdiction to determine whether Martinez’s offense qualifies as an aggravated felony. See Huerta-Guevara v. Ashcroft, 321 F.3d 883, 885 (9th Cir.2003); Randhawa v. Ashcroft, 298 F.3d 1148, 1152 (9th Cir.2002) (observing that the court retains jurisdiction to determine whether the jurisdictional bar of 8 U.S.C. § 1252(a)(2) applies). We conclude that the BIA erred in determining that Martinez’s prior conviction qualifies as an aggravated felony and therefore grant the petition for review. Background Martinez is a native and citizen of Mexico, and was admitted to the United States in 1981 as an immigrant. In 1996, Martinez was charged in state court with second degree robbery, in violation of § 211 of the California Penal Code. The information alleged that Martinez “willfully, unlawfully, and by means of force and fear [took] personal property from the person, possession, and immediate presence of Teresa Guttierrez.” Martinez pled guilty to one count of grand theft based on taking property from another, in violation of § 487(c) of the California Penal Code, and was sentenced to two years confinement. In 2001, the Immigration and Naturalization Service (“INS”) served Martinez with a Notice to Appear, charging that Martinez was subject to removal under 8 U.S.C. § 1227(a)(2)(A)(iii), based on his conviction for grand theft, which the INS alleged constituted an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(G). The IJ concluded at Martinez’s removal hearing that his conviction was a theft offense for which a sentence of one year or more had been imposed and therefore constituted an aggravated felony under § 1101(a)(43). The IJ further found that Martinez was" }, { "docid": "22597949", "title": "", "text": "TACHA, Chief Judge. Petitioner Jose G. Tapia-Garcia appeals a Board of Immigration Appeals’ decision affirming an immigration judge’s ruling that Petitioner is removable as a result of his conviction for commission of an aggravated felony. After concluding Petitioner is an alien subject to removal for commission of an aggravated felony, we dismiss for lack of jurisdiction under section 242(a)(2)(C) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1252(a)(2)(C). I. Factual Background On August 4, 1998, Petitioner Jose G. Tapia-Garcia, a legal permanent resident of the United States and citizen of Mexico, was convicted in Idaho for driving under the influence (DUI) in violation of section 18-8004(5) of the Idaho Code. Although he received a sentence of five years, Mr. Ta-pia-Garcia served only two months in prison. The Immigration and Naturalization Service (INS) commenced removal proceedings on January 6, 1999, arguing Mr. Tapia-Garcia be removed pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), which provides for removal of an “alien who is convicted of an aggravated felony at any time after admission.” The INS alleged that Idaho’s DUI offense constitutes a “crime of violence,” one of the categories of aggravated felonies contained in the INA’s aggravated felony definition. 8 U.S.C. § 1101(a)(43)(F). The immigration judge concluded that Mr. Tapia-Garcia’s DUI offense satisfies the statutory definition of crime of violence, 18 U.S.C. § 16(b), and ordered Mr. Tapia-Garcia removed to Mexico. On October 6, 1999, the,Board of Immigration Appeals (BIA) agreed with the immigration judge and dismissed the appeal. Mr. Tapia-Garcia currently resides in Mexico. II. Justiciability Under the former INA provisions, as well as the transitional rules, a petitioner had to request a stay of deportation in order to preserve judicial review. INA § 106(c), 8 U.S.C. § 1105a(c)(1994), as modified by IIRIRA § 309(c), Pub.L. No. 104-208, 110 Stat. 3009. In 1996, as part of Congress’s effort to expedite the removal process, amendments to the INA deleted the stay requirement, facilitating the prompt deportation of an alien after entry of a removal order. Under the new provisions, however, judicial review is barred only if a petitioner does" }, { "docid": "21960704", "title": "", "text": "v. Gonzales, 411 F.3d 16, 21 (1st Cir.2005). Under the INA, as amended by the REAL ID Act of 2005, “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense [including an aggravated felony].” 8 U.S.C. § 1252(a)(2)(C). As an exception to this express jurisdictional bar, the statute permits judicial review of a removal order to the extent that an alien raises legal or constitutional questions. See id. § 1252(a)(2)(D); see also Mehilli v. Gonzales, 433 F.3d 86, 92 (1st Cir.2005). Here, the petitioner argues that the IJ erred in characterizing his state-court conviction as one for an aggravated felony. Because this argument poses an abstract legal question, we have jurisdiction to entertain it. See Aguiar v. Gonzales, 438 F.3d 86, 88 (1st Cir.2006). Our review is de novo. See id.; Urencu-Ramirez v. Ashcroft, 341 F.3d 51, 53-54 (1st Cir.2003). The INA provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U.S.C. § 1227(a)(2)(A)(iii). The Act enumerates a roster of offenses that fit within the compass of the term “aggravated felony.” See id. § 1101(a)(43). Included at the head of this compendium are “murder, rape, [and] sexual abuse of a minor.” Id. § 1101(a)(43)(A). Before us, the petitioner vigorously attacks the IJ’s “aggravated felony” holding. He asseverates that statutory rape does not constitute “sexual abuse of a minor” within the meaning of 8 U.S.C. § 1101(a)(43)(A). Building on that foundation, he then asseverates that his conviction is not for an aggravated felony. These asseverations overlook that the IJ’s decision rests on an independently adequate and unchallenged ground: a determination that the petitioner had been convicted of “rape”—a specifically enumerated offense under 8 U.S.C. § 1101(a)(43)(A). The petitioner has not in any way, shape, or form challenged that determination, nor has he challenged the IJ’s corollary determination that he was removable, as an aggravated felon, on that basis. We have held, with a regularity bordering on the monotonous, that litigants have “an obligation to spell" }, { "docid": "22841821", "title": "", "text": "that “Congress was sufficiently clear in its intent to include certain crimes with one-year sentences in the definition of ‘aggravated felony.’ ” United States v. Graham, 169 F.3d 787, 788 (3d Cir.1999), cert. denied 528 U.S. 845, 120 S.Ct. 116, 145 L.Ed.2d 99 (rejecting the argument that a one-year sentence does not implicate 8 U.S.C. § 1101(a)(43)(G)). III. Because Drakes’ conviction for forgery under Delaware law and the ensuing one-year sentence met the definition of an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(R), we will dismiss Drakes’ petition for lack of jurisdiction pursuant to 8 U.S.C. § 1252(a)(2)(C). . 8 U.S.C. § 1252(b)(2) provides, as relevant here, that \"the petition for review shall be filed with the court of appeals for the judicial circuit in which the immigration judge completed the proceedings.” . 8 U.S.C. § 1252(a)(2)(C) provides in pertinent part: Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in [8 U.S.C. § ] 1182(a)(2).... The offenses referred to in § 1252 include aggravated felonies; controlled substance convictions; certain firearm, national security, and defense crimes; and multiple convictions for crimes of moral turpitude. . Other courts have employed Chevron deference in interpreting statutes that ultimately determined their jurisdiction. See, e.g., Bell v. Reno, 218 F.3d 86, 90 (2d Cir.2000) (analyzing under Chevron standard whether the Immigration Act of 1990 superseded the ADAA date restriction with regard to aggravated felonies); Lettman v. Reno, 207 F.3d 1368, 1370 (11th Cir.2000) (same); Maghsoudi v. INS, 181 F.3d 8, 14 (1st Cir.1999) (according \"due deference” to the BIA interpretation of a statute in deciding whether or not a crime involves “moral turpitude” within the terms of 8 U.S.C. § 1227(a)(2)(A)(ii)). . Drakes points out that in Song v. INS, 82 F.Supp.2d 1121 (C.D.Cal.2000), the District Court mentioned that aliens are aggravated felons under § 1101(a)(43)(R) if they are sentenced to \"more than a year.” Id. at 1126. The Song Court referenced the statute only in passing, however, and apparently" }, { "docid": "13731555", "title": "", "text": "Based on this evidence, the IJ concluded that Penuliar’s two convictions for unlawful driving or taking of a vehicle were “theft offense[s]” under 8 U.S.C. § 1101(a)(43)(G), and that Penuliar’s conviction for evading an officer was a “crime of violence” under 8 U.S.C. § 1101(a)(43)(F). Accordingly, the IJ ruled that Penuliar was removable as an “aggravated felon” under 8 U.S.C. § 1227(a)(2)(A)(iii), and therefore ineligible for cancellation of removal and voluntary departure. See 8 U.S.C. §§ 1229b(a)(3), 1229c(a)(1). On March 31, 2003, the BIA summarily affirmed the decision of the IJ. See 8 C.F.R. § 1003.1(e)(4). Penuliar timely filed this petition for review. JURISDICTION AND STANDARD OF REVIEW This court lacks jurisdiction to review a final order of removal against an alien who has committed an aggravated felony. See 8 U.S.C. § 1252(a)(2)(C). Nonetheless, “[bjecause the issue in this appeal is whether [the petitioner] committed an aggravated felony, and because we have jurisdiction to determine our own jurisdiction, the jurisdictional question and the merits collapse into one.” Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000) (citation omitted). We review de novo whether a particular offense is an aggravated felony. Id. DISCUSSION To determine whether a conviction is an “aggravated felony” under the INA, we employ the two step test set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Chang v. INS, 307 F.3d 1185, 1189 (9th Cir.2002). First, “we look to the statute under which the person was convicted and compare its elements to the relevant definition of an aggravated felony in 8 U.S.C. § 1101(a)(43).” Id. “Under this ‘categorical approach,’ an offense qualifies as an aggravated felony ‘if and only if the full range of conduct covered by the[criminal statute] falls within the meaning of that term.’ ” Id. (quoting United States v. Baron-Medina, 187 F.3d 1144, 1146(9th Cir.1999)). However, when the statute of conviction reaches both conduct that would constitute an aggravated felony and conduct that would not, we follow a “modified categorical approach.” See id.; United States v. Corona-Sanchez, 291 F.3d 1201, 1211 (9th Cir.2002) (en banc)." }, { "docid": "20649438", "title": "", "text": "merit or not, we cannot address them. They are beyond the scope of these proceedings. A “petitioner cannot collaterally attack the legitimacy of his state criminal convictions in the deportation proceedings. Thus, it is irrelevant for our purposes that an attorney might successfully have applied for the withdrawal of the guilty plea[ ]....” Trench v. INS, 783 F.2d 181, 183 (10th Cir.1986). We can, however, review his contention that the offense of contributing to the delinquency of a minor is not an aggravated felony. For several years our review of removal orders based on aggravated felonies was extremely limited. The Illegal Immigration Reform and Immigrant Responsibility Act, Pub.L. No. 104-208, 110 Stat. 3009, enacted in 1996, added 8 U.S.C. § 1252(a)(2)(C), stating: Notwithstanding any other provision of law ..., no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1181(a)(2) or 1227(a) (2) (A) (iii), (B), (C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii) of this title for which both predictate offenses are, without regard to their date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this title. (emphasis added). In 2001 we held that this provision left us with jurisdiction only to determine our jurisdiction; that is, once we determined that the petitioner was (i) an alien (ii) deportable (iii) by reason of having committed an aggravated felony, our jurisdiction was at an end and we would dismiss the petition for review. See Tapia Garcia v. INS, 237 F.3d 1216, 1220 (10th Cir.2001). But the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, partially restored our jurisdiction. Now, new subparagraph (D) of § 1252(a)(2) overrides subparagraph (C) so that we can review “constitutional claims or questions of law” raised in a petition for review of a removal order, even in an aggravated-felony case. 8 U.S.C. § 1252(a)(2)(D); see Papageorgiou v. Gonzales, 413 F.3d 356, 358 (3rd Cir.2005) (“This now permits all aliens, including criminal aliens, to obtain review of constitutional claims and" }, { "docid": "23018449", "title": "", "text": "would render Alwan permanently ineligible to re-enter the country. Permanent inadmissibility to the United States is a “concrete disadvantage”; it is imposed as a matter of law and is not contingent upon any future event. See Max-George v. Reno, 205 F.3d 194, 196 (5th Cir.2000), vacated on other grounds, Max-George v. Ashcroft, 533 U.S. 945, 121 S.Ct. 2585, 150 L.Ed.2d 746 (2001); Perez v. Greiner, 296 F.3d 123, 126 (2d Cir.2002); Tapia Garcia v. INS, 237 F.3d 1216, 1218 (10th Cir.2001); Steele v. Blackman, 236 F.3d 130, 134 (3d Cir.2001). As such, AI-wan’s claim is not moot and, accordingly, the case or controversy requirement of Article III is met. B Because Alwan’s claim is not moot, there remains a second threshold question: whether this court has jurisdiction to review the order of removal against Alwan. Federal courts are, of course, courts of limited jurisdiction. As a general proposition then, we have no power of review unless it is conferred by statute. See, e.g., Peoples National Bank v. Office of Comptroller of Currency of the United States, 362 F.3d 333, 336 (5 th Cir.2004). In this case, Congress has expressly barred judicial review of “any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1227(a)(2)(A)(iii)” — i.e., an “aggravated felony”. 8 U.S.C. § 1252(a)(2)(C). Thus, the question of our appellate jurisdiction in this case hinges upon two questions that mirror precisely the substantive issues raised in Alwan’s petition for review. They are: (1) whether Alwan is properly characterized as an “alien”; and (2) if Al-wan is an alien, whether his criminal offense was an “aggravated felony” within the meaning of § 1227(a)(2)(A)(iii), thus rendering him removable from the United States. As such, our jurisdictional inquiry effectively merges with our review of the merits of the case. C We thus examine the core contention of Alwan’s petition and ask whether the Immigration Judge erred in concluding that Alwan’s criminal contempt conviction rendered him deportable from the United States under § 1227(a)(2)(A)(iii). (1) Only aliens are deportable under the Immigration and" }, { "docid": "5453960", "title": "", "text": "aggravated felony, as defined in 8 U.S.C. § 1101(a)(43)(A) [sexual abuse of a minor]. Later in 1999, the INS filed additional charges against petitioner charging that he was subject to removal under § 1227(a) (2) (A) (iii) — -as an aggravated felon [crime of violence] — and also pursuant to § 1227(a)(2)(A)© [convicted of a crime involving moral turpitude within five years after admission]. The Immigration Judge found Bahar removable as charged. Bahar appealed to the Board, who dismissed his appeal. Ba-har now appeals the Board’s dismissal. DISCUSSION Before addressing the merits of Bahar’s appeal, we must first decide whether we have jurisdiction to hear his petition. Section 242(a)(2)(C) of the INA, 8 U.S.C. § 1252(a)(2)(C), provides that this court has no jurisdiction to review the final order of removal if Bahar is removable by reason of having committed an aggravated felony. Because judicial review is limited by statutory conditions, we retain jurisdiction to determine only whether the conditions exist. See Galindo-Del Valle v. Attorney General, 213 F.3d 594, 598 (11th Cir.2000). We must, therefore, determine whether Bahar is (1) an alien (2) who is removable (3) based on a conviction for an aggravated felony. See id. The sole issue before us is whether the Board erred in concluding that the North Carolina offense of taking indecent liberties with children constituted an aggravated felony — in this ease, sexual abuse of a minor — pursuant to 8 U.S.C. § 1101(a)(43)(A). We review the Board’s statutory interpretation de novo, but we will defer to the Board’s interpretation if it is reasonable. See Le v. United States Attorney General, 196 F.3d 1352, 1353-54 (11th Cir.1999). The record does not contain the underlying facts of Bahar’s conviction; likewise, the Immigration Judge made no factual findings about Bahar’s conduct. Therefore, the crime defined by section 14-202.1 of the North Carolina General Statute qualifies as “sexual abuse of a minor” if the “full range of conduct” covered by the North Carolina statute falls within the meaning of the term. See United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir.1999). Section 14-202.1(a)(l) provides: (a) A" } ]

[ { "docid": "12711500", "title": "", "text": "in the judgment of the Federal Emergency Administrator of Public Works (hereinafter called the “Administrator”) the Borrower has failed to balance its budget satisfactorily, or has failed to take satisfactory action which is reasonably designed to bring the ordinary current expenditures of the Borrower within the prudently estimated revenues thereof; (b) Cost of Project. If the Engineering Division shall not bo satisfied that the Borrower will be able to construct the Project within the cost estimated at the time when the Application was approved by the Government, such estimated cost being the amount of $150,000, unless, in the event that additional funds appear to the Engineering Division to be necessary in oi-der to pay in full the cost of tlie construction of the Project, the Finance Division shall be satisfied that the Borrower will be able to obtain such funds, as needed, through additional borrowing or otherwise, in a manner satisfactory to Counsel for the Government; (c) Compliance. If the Borrower shall not have complied, to the satisfaction of Counsel for the Government, with all the provisions contained or referred to in this Agreement and in the proceedings authorizing the issuance of the Bonds, theretofore to be complied with by the Borrower ; (d) Legal Matters. If Counsel for the Government shall not he satisfied as to all legal matters and proceedings affecting the Bonds, the security therefor or the Project; (e) Representations. If any representation made by the Borrower in this Agreement or in the Application or in any supplement thereto or amendment thereof, or in any document submitted to the Government by the Borrower shall he found by Counsel for the Government to ho incorrect or incomplete in any material respect; (f) Financial Condition. If, in the judgment of the Finance Division, the financial condition of the Borrower shall have changed unfavorably in a matei’ial degree from its condition as theretofore represented to the Government. . 5. Representations and Warranties. The Borrower represents and warrants as follows: (a) Authorizations. All necessary authorizations, permits, licenses and approvals from Federal, State, county, municipal and other authorities in connection with the" } ]

[ { "docid": "11907265", "title": "", "text": "1933, it was announced by the Public Works Administration that a loan and grant had been made to the city of Allegan in the sum of $410,000' for the construction of an electric power plant, dam, and distribution system, 30' per cent, of the amount to be advanced by the Public Works Administration as a grant, the balance to be a loan secured in part by 4 per cent, general obligation bonds and in part by first mortgage bonds. It is urged by the utility that the proposed loan and grant do not properly qualify under the terms of the act, and that if they do the act is to that extent unconstitutional. Title 2 of the Recovery Act, 40 USCA § 402, requires the administrator to- prepare a comprehensive program of public works, and enumerates wlia.t shall be included. Subsection (b) of tlie enumeration includes “transmission of electrical energy.” As the city’s project contemplates the generation and distribution of electricity, this is urged as the reason why its proposed electric lighting plant does not qualify as an activity to he aided under the Recovery Act. It is also urged that if, notwithstanding section 402 (b), we are to hold that the proposed loan comes within the provisions of the act, the act is unconstitutional, particularly with respect to section 203 (d) of title 2 thereof (40 USCA § 403 (d), which provides: “The President, in his discretion, and under such terms as he may prescribe, may extend any of the benefits of this chapter to any State, county, or municipality notwithstanding any constitutional or legal restriction or limitation on the right or power of such State, county, or municipality to borrow money or incur indebtedness.” In respect to this section, it is sufficient to say that the city does not assert any authority for its proposed bond issue as being derived from it. The city rests its ease upon its authority to issue bonds under state law. We have found that by reason of the passage of the validating act it has such authority. There is therefore no necessity" }, { "docid": "15304327", "title": "", "text": "for electric energy charged by private corporations engaged in intrastate business, and that he had accomplished this purpose through his control of federal funds distributable under the provisions of title 2 of the National Industrial Recovery Act (40 U.S.C.A. § 401 et seq.). The conclusion was supported by reference to the public utterances of the Administrator in which he condemned as exorbitant the prices charged-by utility companies in general, and the Duke Power Company in particular, and described his practice in cooperating with municipalities in the grant or refusal of federal funds to establish municipal plants so as to achieve the desired end. He announced that his policy had caused utility companies to adjust their rates downward in wide areas. With regard to the project of Greenwood County, the evidence showed that an investigation of the rates charged by the Duke Power Company in the area concerned was made by the Public Works Administration, and that the rates were considered to be excessive; and that the-application of Greenwood County for federal funds to establish a competing plant was approved because the lower rates which it proposed to charge had been investigated by the Administrator and found to be reasonable and satisfactory. In furtherance of the policy of the Administrator, a provision was inserted in the first loan and grant agreement with Greenwood County that the Government should be under no obligation to advance the necessary money unless a resolution should have been adopted by the county providing for rates to be charged by it for electric energy satisfactory to the Administrator. Such rates were in fact promulgated by the County. The South Carolina Revenue Bond Act of 1933, Act No. 299 (38 St. at Large p. 411), provided in section 21 that rates for services to be furnished by such'a municipal plant should be fixed precedent to the issuance of bonds ; section 29 provided that such rates should not be subject to the supervision or regulation of any state commission or like instrumentality’ or agency, and Act No. 1095 of the South Carolina Statutes at Large, 1934, volume 38," }, { "docid": "13235078", "title": "", "text": "for this purpose. The reduction of rates under the plan of PWA in this case is not merely probable, it is inevitable. The municipality not only makes no investment, but it assumes no liability for the loan of 70 per cent., for that is to be represented by revenue bonds payable only out of income of the plant. In addition, 30 per cent, of the cost of the project is a free gift. The power company, therefore, is not obliged to meet merely the influence of a competitor who risks his own money in the enterprise. Competition of that sort must be endured without complaint. The fact is that the county is freely furnished with sufficient funds to build the entire plant and thus may cut the rates with impunity; so that a reduction of rates in order to get the business and satisfy the demands of its citizens will certainly ensue. We may lay to one side the protests of the power company that the state authorities have found the rates of its intrastate industry to be fair and reasonable, and the accusations of the administrator that the rates are exorbitant. The question is, Has the federal government the constitutional right to exert this regulatory power in a local field on the ground that it is only an incidental result of the laudable effort under the general welfare clause of the Constitution to put an end to unemployment? The conflict between state and federal power which arises is similar to that which the Supreme Court resolved on January 6, 1936 in U. S. v. Butler when it held that a statutory plan to regidate and control agricultural production effected by contracts between the farmers and the government was beyond its power and invaded the reserved rights of the states. The principle underlying that decision seems to control this case, and the factual differences between them do not appear to be material. The PWA contract does not in terms obligate the municipality to reduce the rates as directly as the farmers in their agreements were required to curtail production, but" }, { "docid": "13362843", "title": "", "text": "states. One such agency and branch was established in the city of Fort Worth, Tex. The adoption of a public works program and of regulations for obtaining grants and loans is alleged, and it is charged that the act gave the Administrator power to accept or reject applications or to make conditions with relation thereto. At the time in question there existed in Texas a state governmental agency described as a. conservation and reclamation district known as the Willacy County Water Control and Improvement District No. 1 (we shall call it District) — that the management of its affairs was in a board of directors consisting of five members with authority to issue bonds to the amount of $7,500,000 for the purpose of financing the construction of a system of irrigation; that the District caused plans to be made showing a detailed statement of the materials to be used in the construction; that the work on the project was begun, but was discontinued for lack of funds, arid the District then made application to the Public Works Administration in Washington for a loan and grant under the provisions of the National Industrial Recovery Act (48 Stat. 195), and filed plans and specifications therewith, which plans and specifications provided for the construction of a gravity and open canal system of irrigation; that the District offered as security for the loan the bonds of the District; that on the 8th of December, 1933, the Administrator allocated the sum of $4,853,000 to the purpose of a loan for the District for the construction of the project. The exact amount of the grant of money under the act was to depend upon the cost of labor and materials used on the project, but was to be within the limit of 30 per centum thereof. The act of Congress required that the contract should be let by means of competitive bidding to the lowest responsible bidder, etc., and otherwise should conform to the provisions of the Recovery Act. The indictment charges that the United States had the right, in passing upon the application and in" }, { "docid": "15304328", "title": "", "text": "competing plant was approved because the lower rates which it proposed to charge had been investigated by the Administrator and found to be reasonable and satisfactory. In furtherance of the policy of the Administrator, a provision was inserted in the first loan and grant agreement with Greenwood County that the Government should be under no obligation to advance the necessary money unless a resolution should have been adopted by the county providing for rates to be charged by it for electric energy satisfactory to the Administrator. Such rates were in fact promulgated by the County. The South Carolina Revenue Bond Act of 1933, Act No. 299 (38 St. at Large p. 411), provided in section 21 that rates for services to be furnished by such'a municipal plant should be fixed precedent to the issuance of bonds ; section 29 provided that such rates should not be subject to the supervision or regulation of any state commission or like instrumentality’ or agency, and Act No. 1095 of the South Carolina Statutes at Large, 1934, volume 38, p. 2020, authorizing Greenwood County to borrow from the Public Works Commission the money to construct the plant, declared that the project was self liquidating and that any indebtedness created therefor should not be a direct and primary obligation of the county. The additional evidence taken upon the last trial in the District Court strongly supports the same conclusion. The administrator set up an agency known as the Electric Power Board of Review which from 1933 to March 16, 1935, had charge in an advisory capacity of the applications of municipalities desiring to establish electric power plants. During this period the loan and grant to Greenwood County was approved. The policy announced by members of this body and applied in numerous instances was precisely in accord with the Administrator’s plans, and this course was followed not only when a proposal involving revenue bonds was under consideration, but also when general obligation bonds were offered by the municipality. The procedure was to give the established private power company an opportunity to put into effect a rate" }, { "docid": "15304285", "title": "", "text": "shows, however, that it furnishes not exceeding 15 per cent, of the power now used in Greenwood County, the remainder being supplied by steam plants of manufacturing companies. After the passage of the National Industrial Recovery Act in 1933, officials of that county, without solicitation or suggestion from the Public Works Administration, conceived the plan of obtaining authority from the State of South Carolina for the construction by the county of a dam and power plant at Buzzard Roost Falls on the Saluda River and of obtaining a grant and loan from the Public Works Administration for financing the project. Authority from the state was duly obtained (Acts May 8, 1933, March 26, 1934, 38 St. at Large, S.C. pp. 411, 1392), and application for loan and grant in the total sum of $2,800,000 was made by Greenwood County to the Administrator of Public Works in November 1933. Without consulting with the Public Works Administrator, the county prepared and included in its application a schedule of rates to be charged for the sale of electric energy to the various classes of its proposed customers. Notwithstanding the change in the contracts between the county and the Administrator, to which we shall refer hereafter, these rates have never been changed. After full consideration of the application by the Administrator of Public Works, an allotment was made for this project on June 19; 1934, and was approved by the President of the United States on the following day. Plaintiff having asked to be heard in opposition to the allotment was accorded a hearing on July 2, 1934, and the matter was held in abeyance until November 7th, when the allotment was reaffirmed by the Administrator and the President. A contract was thereupon entered into between the Administrator and the county on December 8, 1934, under which the Administrator agreed to make a grant to the county for the development of the project of 30 per cent, of the cost of labor and materials, not to exceed the sum of $682,000 and to buy such portion of the $2,219,000 of 4 per cent, revenue" }, { "docid": "13235028", "title": "", "text": "advised us that at that rate our loan would be liquidated. It was the same interest any banker would have in buying these bonds. ’ We would not have entered into a contract if the rates had not shown a sufficient, prospective income, based on those rates to liquidate the loan. The rates as such were not approved by the PWA authorities. We knew that those rates were sufficient. If the rate were a lower rate applied to a larger sale of power which would have been sufficient in the aggregate to liquidate the obligation to the United States that would have been a satisfactory arrangement. On the other hand, if it had been a higher rate, applied to a lesser amount of power sold which would yield enough to liquidate the obligation of the United States that would have been a satisfactory arrangement. We did not take into consideration the rates charged by the Duke Power Company in making this contract.” And at another place he said: “Q. In the case of the Greenwood County project, you would have made the loan and grant, regardless of your views as to whether the Duke Power Company’s rates were, or were not, high? A. We would have made the loan and grant to Greenwood County, regardless of the rates, or our opinion of the rates, of the Duke Power Company, if Greenwood County had the legal authority to enter into the contract with us, and if Greenwood County could satisfy us that it could liquidate the loan that we made. Those were the considerations.” He further testified that the statement of one C. E. Rose at the former hearing as to the policy of the public works administration was not correct. The pertinent portion of Mr. Rose’s testimony on the former hearing is as follows: industrial consumers of good load capacity, and 8.2 mills as a municipal rate, both of which are under the Duke rates. The Duke rates do not meet with the approval of the PWA authorities. We think they are excessive, and it is because we think they" }, { "docid": "13235077", "title": "", "text": "power undertakings. The municipal projects have caused private utilities to adjust their rates downward in wide areas and the federal projects have brought about rate adjustments over • still larger expanses of territory.” How are these formal statements modified by his present testimony? To the extent that the government is interested in the rates to be charged by the county only as a prospective bondholder and does not intend to exercise any control over them. He adds that the loan and grant would have been made regardless of the rates of the Duke Power Company, if it had been established that the county had legal authority to make the contract and that the loan would be liquidated; but as this statement enters the realm of conjecture it adds little to the discussion. One is presumed to intend the natural and probable consequences of his acts; and the public utterances of the administrator show that he realized that his loans and grants to municipal power projects would reduce local utility rates, and that he made them for this purpose. The reduction of rates under the plan of PWA in this case is not merely probable, it is inevitable. The municipality not only makes no investment, but it assumes no liability for the loan of 70 per cent., for that is to be represented by revenue bonds payable only out of income of the plant. In addition, 30 per cent, of the cost of the project is a free gift. The power company, therefore, is not obliged to meet merely the influence of a competitor who risks his own money in the enterprise. Competition of that sort must be endured without complaint. The fact is that the county is freely furnished with sufficient funds to build the entire plant and thus may cut the rates with impunity; so that a reduction of rates in order to get the business and satisfy the demands of its citizens will certainly ensue. We may lay to one side the protests of the power company that the state authorities have found the rates of its intrastate" }, { "docid": "15304286", "title": "", "text": "energy to the various classes of its proposed customers. Notwithstanding the change in the contracts between the county and the Administrator, to which we shall refer hereafter, these rates have never been changed. After full consideration of the application by the Administrator of Public Works, an allotment was made for this project on June 19; 1934, and was approved by the President of the United States on the following day. Plaintiff having asked to be heard in opposition to the allotment was accorded a hearing on July 2, 1934, and the matter was held in abeyance until November 7th, when the allotment was reaffirmed by the Administrator and the President. A contract was thereupon entered into between the Administrator and the county on December 8, 1934, under which the Administrator agreed to make a grant to the county for the development of the project of 30 per cent, of the cost of labor and materials, not to exceed the sum of $682,000 and to buy such portion of the $2,219,000 of 4 per cent, revenue bonds to be issued by the county for its construction as'should not be sold to outside parties. One of the provisions 6f the contract was that the government should be under no obligation to take the bonds or make any portion of the grant if the county should not have adopted a schedule of rates satisfactory to the Administrator. After the decision of the Circuit Court of Appeals of the Eighth Circuit in Arkansas-Missouri Power Co. v. City of Kennett, 78 F.(2d) 911, holding that the. execution of a contract with such a provision was beyond the power of a municipal corporation of Missouri, and after the decision of Judge Watkins below, holding that such a provision gave the Administrator control over the rates to be charged, this provision was eliminated from all contracts thereafter executed by the Administrator; and on November 30, 1935 the county and the Administrator entered into a new contract superseding that of December 8, 1934. The new contract gave the Administrator no power whatever with respect to rates to be" }, { "docid": "13235031", "title": "", "text": "and that “whatever might be the purposes, policies, and practices of the Public Works Administration in reference to competitors, in financing the instant\" enterprise the result to the plaintiffs would be the same. The lower rates which the enterprise may be able to charge because of government aid through its loan and grant — particularly the latter — would effectively establish a ‘yardstick’ or rate of charge which plaintiff’s must inevitably meet, or have their business pro tanto destroyed.” A decree was entered, therefore, continu.ng the injunction theretofore granted and making it applicable to the new contract; and from that decree the defendants again appealed. There can be no question as to the correctness of the holding of the trial judge that he was bound by the finding of the administrator of public works to the effect that the project could be constructed within the limits of the loan and grant and would be a self-liquidating project within the meaning of the act of Congress and the policy of the public works administration. That the presumption of correctness attaches to the action of administrative officers with respect to matters committed to their discretion, and that, even where judicial review is provided for, the exercise of such discretion will not be disturbed if based upon substantial testimony and not manifestly arbitrary and unreasonable, is too well settled to admit of discussion. And it is equally clear that we are bound by the decision of the South Carolina Supreme Court in Park v. Greenwood County, 174 S.C. 35, 176 S.E. 870, to the effect, that the construction of the power plant and the issuance of revenue bonds to pay for same, as contemplated by the contract with the administrator of public works, was within the powers of Greenwood county. The questions upon this appeal, therefore, are narrowed to three, viz.: (1) Is the act of Congress under which the loan and grant are to be made a valid and constitutional enactment? (2) Will the action of the administrator of public works in making the loan and grant be a valid exercise of" }, { "docid": "15304287", "title": "", "text": "bonds to be issued by the county for its construction as'should not be sold to outside parties. One of the provisions 6f the contract was that the government should be under no obligation to take the bonds or make any portion of the grant if the county should not have adopted a schedule of rates satisfactory to the Administrator. After the decision of the Circuit Court of Appeals of the Eighth Circuit in Arkansas-Missouri Power Co. v. City of Kennett, 78 F.(2d) 911, holding that the. execution of a contract with such a provision was beyond the power of a municipal corporation of Missouri, and after the decision of Judge Watkins below, holding that such a provision gave the Administrator control over the rates to be charged, this provision was eliminated from all contracts thereafter executed by the Administrator; and on November 30, 1935 the county and the Administrator entered into a new contract superseding that of December 8, 1934. The new contract gave the Administrator no power whatever with respect to rates to be charged by the county, and contained the following provisions: “12. The Administrator and the Government shall have no right or power of any kind with respect to the rates to be fixed or charged for the services and facilities afforded by the project, excepting only such rights as they may have as a holder of such bonds under the laws and Constitution of South Carolina, and the lawful proceedings of the applicant, taken pursuant thereto, in authorizing the issuance of such bonds. “13. This agreement is made with the express understanding that neither the loan nor the grant- herein described is conditioned upon compliance by the applicant with any conditions not expressly set forth herein. There are no other agreements or understandings between the applicant and the government or any of its agencies in any way relating to said project.” It is the contention of plaintiff that the loan and grant were made to the county by the Administrator for the purpose of affecting the rates charged by plaintiff for electric power, and at all" }, { "docid": "22961049", "title": "", "text": "at intervals not exceeding in all the period of. six years, bearing interest at the rate of six per cent per annum, which bonds shall not be sold for less than their par value.” 90 Ohio Local Laws, 251. The petition did not set out the third section of the act.' But as it was the duty of the Circuit Court to take notice of its provisions, and as it must be .referred to in order to dispose of the questions arising on this record, it is here given in full: “ The trustees shall receive reasonable compensation for their services, which shall not exceed the sum of twenty-five dollars each, which, with all costs and expense of constructing, said improvement, together with the interest on any bonds issued by the trustees for-the same, shall be levied and assessed upon each front foot of the lots ancPlands abutting on each side of said Williams avenue between the te7'mini onentioned in section one hei'eof, and shall be a lien from the date of the assessment upon the respective lots or parcels of lands assessed; said assessment shall be payable in five annual payments, and shall be paid to the. township treasurer; and the option of\" paying his portion of such assessment in full within a period of twenty days from the date of the levy thereof shall be given to each of the property owners, but no notice to the property owners of such option .shall be necessary. The township treasurer shall, on or before the second Monday of September, annually, certify all unpaid assessments to the county auditor, and the same shall be placed on the tax list, and shall be, with ten per cent penalty to cover interest and cost of collection, collected by the county treasurer in the same manner as other taxes are collected, and when collected he shall pay the same to the township treasurer; and all moneys received by the township treasurer on such assessments shall be applied to the payment of the bonds issued under, this act, and for no other purpose ; and" }, { "docid": "15304288", "title": "", "text": "charged by the county, and contained the following provisions: “12. The Administrator and the Government shall have no right or power of any kind with respect to the rates to be fixed or charged for the services and facilities afforded by the project, excepting only such rights as they may have as a holder of such bonds under the laws and Constitution of South Carolina, and the lawful proceedings of the applicant, taken pursuant thereto, in authorizing the issuance of such bonds. “13. This agreement is made with the express understanding that neither the loan nor the grant- herein described is conditioned upon compliance by the applicant with any conditions not expressly set forth herein. There are no other agreements or understandings between the applicant and the government or any of its agencies in any way relating to said project.” It is the contention of plaintiff that the loan and grant were made to the county by the Administrator for the purpose of affecting the rates charged by plaintiff for electric power, and at all events, that the inevitable effect of the construction of the proj ect will be to lower rates in the territory in which plaintiff operates; and much testimony was adduced as to the policy of the Public Works Administration in approving loans and grants for power projects. As to this it appears that the Electric Power Board of Review which was set up in 1933, but which was abolished by order of the Administrator on March 16, 1935, did have a policy with respect to approving loans to municipal power projects to the effect that such projects should meet standards of social desirability, as well as engineering soundness and reasonable security. Social desirability, under this policy, depended among other things upon whether or not the municipal project would provide current at rates substantially less than those at which it was provided by an existing utility; and, in cases where such utility would lower its rates to meet those proposed by the municipality, the policy was not to approve the municipal project. After the Electric Power Board" }, { "docid": "13235027", "title": "", "text": "increase purchasing power through the construction of useful public works,” and that the interest of the public works administration in the question of competitive rates went merely to the question as to whether or not the rates to be charged would repay the loan made by the administration within the time limit of the contract. Specifically, with reference to the loan to Greenwood county, he testified: “We did not approve rates. We are not interested in rates except in\" so far as our experts advised us that by charging those rates at which power could be sold they could liquidate their obligation to us. The rates set out in the bond resolution of the county are initial rates. There is no reservation of'the right on our part to change those rates in the future. I don’t know whether the contracts which Greenwood County made for the sale of power to be produced by the project were presented to anyone in the Public Works Administration or not. They were not presented to me personally. Our experts advised us that at that rate our loan would be liquidated. It was the same interest any banker would have in buying these bonds. ’ We would not have entered into a contract if the rates had not shown a sufficient, prospective income, based on those rates to liquidate the loan. The rates as such were not approved by the PWA authorities. We knew that those rates were sufficient. If the rate were a lower rate applied to a larger sale of power which would have been sufficient in the aggregate to liquidate the obligation to the United States that would have been a satisfactory arrangement. On the other hand, if it had been a higher rate, applied to a lesser amount of power sold which would yield enough to liquidate the obligation of the United States that would have been a satisfactory arrangement. We did not take into consideration the rates charged by the Duke Power Company in making this contract.” And at another place he said: “Q. In the case of the Greenwood" }, { "docid": "15304332", "title": "", "text": "of the municipal revenue bonds; but no new application for the loan and grant was made by the county, no new resolution of approval of the project by the Public Works Administration was given, and no change was made in the rates to be charged by the projected plant which had been adopted prior to the execution of the first contract and had received the approval of the Administrator. In fact, the county adopted a new resolution on December 6, 1935, by which the original rates were confirmed. The change in the contract was obviously made to meet, if possible, the legal objection that had been raised; but no change was made in the unauthorized and invalid condition upon which the proposal had been approved. It is of course conceded that in the consideration of a project for approval the Administrator must necessarily exercise an executive discretion and may properly take into account the question of rates in determining whether a proposed municipal power project will have a reasonable prospect of success. It is claimed on behalf of the Government that such was the extent of his action in this case. But the evidence is to the contrary. Possessing the conviction that the rates approved by state authority were too high, he determined to use his power as an official of the national government to reduce them; and in carrying his purpose into effect he stepped across the line, went beyond the power conferred upon him by Congress and invaded the reserved powers of the states. If the National Industrial Recovery Act had provided that the power of the Administrator to make loans or grants to municipalities for the establishment of power plants should be exercised so as to reduce by competition the rates of private utilities approved by state authority, such a provision would surely have been unconstitutional. The Administrator proceeded as if such a provision were contained in the statute. The consent of the state in this instance does not save the situation because “state powers can neither be appropriated on the one hand nor abdicated on the" }, { "docid": "15304294", "title": "", "text": "to be evidenced by revenue bonds, it was necessary for the Public Works Administration, in order to carry out Congress’ mandate that the loan should be reasonably secured (48 Stat., 203), to examine into the rates of the plaintiff who operated in the territory in which the Greenwood project would be developed. It was necessary that the Administrator be satisfied that the County’s proposed rates were low enough to obtain customers and high enough to yield a revenue sufficient to “liquidate the bonds.” As to the contention that the construction of the project would necessarily affect rates, the judge below found, and his finding is amply supported by the testimony, that the county project would not serve as a yardstick for the fixing of private utility rates because of the difference in construction costs, difference in overhead, freedom from taxation, etc. He further found that any effect which the construction of the county project will have on plaintiff’s rates will be the result of the voluntary construction of an electric project by the county and the voluntary decision of the county to use that project in competition with plaintiff. As to the extent of this competition, he found that at the most the county plant will produce only about 25,-000,000 K. W. H. of electricity; that the county has plans to sell only 12,000,000 K. W. H.' of this to those who arc now customers of plaintiff; that in 1936 plaintiff sold 2,476,000,000 K. W. H. in the Piedmont Section of the Carolinas; and that this was an increase of 380,000,000 K. W. PL over its 1935 sales. In other words, the business which the county project will take from plaintiff is less than one half of one per cent, of the business which it did in 1936 and less than 4 per cent, of the amount by which that business was increased over the business of 1935. There is evidence that the gross income of the business which will bea taken from plaintiff by the county contracts amounts to about $250,000 per year; and there is evidence that the" }, { "docid": "7177296", "title": "", "text": "Section 5597. It is also authorized to determine in what number of installments the assessments and the interest thereon shall be paid, and the rate of interest the installments shall bear. Section 5601. It is authorized to apply the installments and the interest thereon to the payment of the bonds it issues (section 5602), and to -issue bonds and sell the same to meet the expenses of locating and constructing any ditch or improvement under the provisions of this article, “which bonds shall mature, at annual intervals, commencing after a period of two years, for not exceeding twenty years, bear interest at not to exceed six per cent per annum and be payable semi-annually at the office of the county treasurer” (section 5603). This brief review of the grant of authority to the county discloses the fact that plenary power was given to it to make the .contract for the construction of this ditch, to control, conduct, and determine every preliminary step which led up to the contract and which, if properly performed, made it valid and enabled the county to raise the funds to discharge all liability under it, to decide whether or not the improvement should be made, to decide what the true estimate of the cost of the location and construction of the ditch was, what the amounts of the damages to be paid and of the assessments to be.made and collected should be, and what amount of bonds should be issued. If the county had made its estimate of the cost of the work sufficiently large, its assessments sufficiently high, or if it had sold a sufficient amount of bonds and had applied the proceeds it could have lawfully obtained to the discharge of the contract here in suit, it would have had sufficient funds to pay its debt to the plaintiffs. The statute placed no limit upon the estimate of the cost of the improvement, and hence none upon the amount of bonds it could issue, none upon the amount of assessments it could levy and the duty and the responsibility to so estimate the" }, { "docid": "15304284", "title": "", "text": "v. Greenwood County, 174 S.C. 35, 176 S.E. 870, when that cause was pending before the Supreme Court of South Carolina. From the decree dismissing the bill, the plaintiffs have appealed, and the defendants have appealed from so much of it as taxes them with costs. The appeals present four questions for our consideration: (1) Whether the statute under which the Administrator has made the' loan and grant is a valid exercise of congressional power; (2) whether the making of the loan and grant by the Administrator is within the power granted him by the statute; (3) whether, in any event, any right of plaintiffs is violated by the making of the loan and grant; and (4) whether any costs should have been taxed against defendants. Statement of Facts The facts are as follows: The plaintiff power company, which operates in the Piedmont section of the Carolinas, and to which we shall hereafter refer as the plaintiff, is the only large power company doing business in Greenwood County, South Carolina, and surrounding counties. The record shows, however, that it furnishes not exceeding 15 per cent, of the power now used in Greenwood County, the remainder being supplied by steam plants of manufacturing companies. After the passage of the National Industrial Recovery Act in 1933, officials of that county, without solicitation or suggestion from the Public Works Administration, conceived the plan of obtaining authority from the State of South Carolina for the construction by the county of a dam and power plant at Buzzard Roost Falls on the Saluda River and of obtaining a grant and loan from the Public Works Administration for financing the project. Authority from the state was duly obtained (Acts May 8, 1933, March 26, 1934, 38 St. at Large, S.C. pp. 411, 1392), and application for loan and grant in the total sum of $2,800,000 was made by Greenwood County to the Administrator of Public Works in November 1933. Without consulting with the Public Works Administrator, the county prepared and included in its application a schedule of rates to be charged for the sale of electric" }, { "docid": "515713", "title": "", "text": "Illinois, respecting railroad companies, in force prior to the adoption of the constitutional provision, contained the following sections : — - 77. Subscriptions and loans. Whenever the citizens of any city or county in this State are desirous that said city or county should subscribe for stock in any railroad company already organized or incorporated, or hereafter to be organized or incorporated, under any law of this State, such city or county may and are hereby authorized to purchase or subscribe for shares of the capital stock in any such company, in any sum not exceeding $100,000, for each of such cities or counties ; and the stock so subscribed for, or purchased, shall be under the control of the county court of the county, or common council of the city, making such subscription or purchase, in all respects as stock owned by individuals. “ 78. For the payment of such stock, the judges of the county court of the county, or the common council of the city, making such subscription or purchase, are hereby authorized to' borrow money, at a rate not exceeding ten per cent per annum, and to pledge the faith of the county or city for the annual payment of the interest, and the ultimate redemption of ’the principal; or, if the said judges or common council should deem it most advisable, they are hereby authorized to pay for such subscription or purchase in bonds of thé city or county making such subscription,’to be drawn for that purpose, in sums not less than fifty dollars, bearing interest hot exceeding ten per cent per annum, provided that no bond shall be paid out at a rate less than par value. “79. The railroad companies already organized or incorporated, or hereafter to be organized or incorporated, under the laws of this State, are hereby authorized to receive the bonds of any county or city becoming subscribers to the capital stock of such company, at par, and in lieu of cash, and to issue their bonds, bearing interest not exceeding ten per cent per annum, for any money by" }, { "docid": "13235026", "title": "", "text": "should be revested with jurisdiction of the entire cause with power to enter such decree as might be deemed appropriate. A hearing was thereupon had in the court below at which the new contract was introduced in evidence and the testimony of the federal administrator of public works and the officers of the county was taken with reference thereto. The court excluded a part of the testimony of the administrator which we think should have been admitted, in view of the contention that his action in approving the loan and grant to the county was for the purpose of affecting power rates; but,, as the testimony excluded as well as that admitted has been certified in the record and is before us, no harm has resulted from this action. The administrator, on this hearing, denied that he intended to exercise any control whatever over the rates to be charged by the county and stated that the loan and grant werfe made pursuant to the fundamental purpose of the public works administration “to relieve unemployment and increase purchasing power through the construction of useful public works,” and that the interest of the public works administration in the question of competitive rates went merely to the question as to whether or not the rates to be charged would repay the loan made by the administration within the time limit of the contract. Specifically, with reference to the loan to Greenwood county, he testified: “We did not approve rates. We are not interested in rates except in\" so far as our experts advised us that by charging those rates at which power could be sold they could liquidate their obligation to us. The rates set out in the bond resolution of the county are initial rates. There is no reservation of'the right on our part to change those rates in the future. I don’t know whether the contracts which Greenwood County made for the sale of power to be produced by the project were presented to anyone in the Public Works Administration or not. They were not presented to me personally. Our experts" } ]

[ { "docid": "22655547", "title": "", "text": "Defendant’s own desire to lead a better life.” Id., at 125-126. II The Court of Appeals reversed and remanded for resentencing. Relying on its earlier opinion in United States v. Claiborne, 439 F. 3d 479 (CA8 2006), it held that a sentence outside of the Guidelines range must be supported by a justification that “ ‘ “is proportional to the extent of the difference between the advisory range and the sentence imposed.”’” 446 F. 3d 884, 889 (CA8 2006) (quoting Claiborne, 439 F. 3d, at 481, in turn quoting United States v. Johnson, 427 F. 3d 423, 426-427 (CA7 2005)). Characterizing the difference between a sentence of probation and the bottom of Gall’s advisory Guidelines range of 30 months as “extraordinary” because it amounted to “a 100% downward variance,” 446 F. 3d, at 889, the Court of Appeals held that such a variance must be — and here was not — supported by extraordinary circumstances. Rather than making an attempt to quantify the value of the justifications provided by the District Judge, the Court of Appeals identified what it regarded as five separate errors in the District Judge’s reasoning: (1) He gave “too much weight to Gall’s withdrawal from the conspiracy”; (2) given that Gall was 21 at the time of his offense, the District Judge erroneously gave “significant weight” to studies showing impetuous behavior by persons under the age of 18; (3) he did not “properly weigh” the seriousness of Gall’s offense; (4) he failed to consider whether a sentence' of probation would result in “unwarranted” disparities; and (5) he placed “too much emphasis on Gall’s post-offense rehabilitation.” Id., at 889-890. As we shall explain, we are not persuaded that these factors, whether viewed separately or in the aggregate, are sufficient to support the conclusion that the District Judge abused his discretion. As a preface to our discussion of these particulars, however, we shall explain why the Court of Appeals’ rule requiring “proportional” justifications for departures from the Guidelines range is not consistent with our remedial opinion in United States v. Booker, 543 U. S. 220 (2005). Ill In" } ]

[ { "docid": "22319318", "title": "", "text": "KOZINSKI, Circuit Judge: We consider two questions left unanswered by United States v. Ameline, 409 F.3d 1073 (9th Cir.2005):(1) By what standard do we review a district court’s determination that a defendant’s sentence would not have been materially different, had it known that the Guidelines were advisory rather than mandatory? And, (2) may a defendant raise new claims of error during the course of an Ameline remand? Facts Defendant was sentenced during the interregnum between Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and the tortured posture of his case illustrates the difficulties the courts of appeals have faced in reviewing such sentences. Defendant was convicted on four counts relating to his involvement in a methamphetamine operation and sentenced to 168 months, a sentence at the low end of the Guidelines range. He appealed on the sole ground that the district court erred in denying his motion to suppress certain evidence. We affirmed in an opinion filed the day before Booker was handed down. See United States v. Combs, 394 F.3d 739 (9th Cir.2005). Defendant petitioned for rehearing, claiming Booker error because the district judge had acted under the misapprehension that the Guidelines were mandatory rather than advisory. Because defendant had not raised a sentencing claim below, this belated claim could be reviewed — if at all — only for plain error. We therefore amended our opinion to include a remand to the district court for a determination of whether the error was prejudicial, as directed by Ameline. See United States v. Combs, 412 F.3d 1020 (9th Cir.2005). At no time during his first appeal did defendant challenge the reasonableness of his sentence. Our ruling today applies only to defendants in Combs’s particular situation. On remand, the district court invited the parties to file memoranda addressing whether resentencing was warranted. Combs argued that the pre-Booker sentencing statute had precluded the district judge from ordering the sentence that would best serve the policy goals of 18 U.S.C. § 3553(a), and asked" }, { "docid": "23047463", "title": "", "text": "indictment for possession of a prohibited object by an inmate in violation of 18 U.S.C. §§ 1791(a)(2), (d)(1)(B) & (d)(2). Charles pled guilty to the charge at a plea hearing before the District Court on July 21, 2004. Under the then-mandatory United States Sentencing Guidelines, the District Judge determined that Charles was a career offender, which placed him in a Guidelines imprisonment range of 37 to 46 months, two to three years’ supervised release, a fíne of $4,000 to $40,000, and a mandatory special assessment of $100. On September 1, 2004, the Judge waived all fines and sentenced Charles to 46 months’ imprisonment, three years’ supervised release, and the mandatory $100 special assessment. Charles appealed to us, arguing, inter alia, that mandatory application of the Guidelines was unconstitutional. We affirmed the judgment of conviction but remanded for resentencing in accordance with Booker, which eliminated the mandatory aspect of the Guidelines. The District Court imposed the same sentence as before. Charles is back before us on appeal. He asserts that the sentence is unreasonable because the District Court failed to articulate its consideration of the sentencing factors in 18 U.S.C. § 3553(a). He requests that we vacate the sentencing judgment and remand for resentencing. II. Standard of Review After Booker, the Guidelines have only advisory force and appellate courts must review sentences for reasonableness according to the “relevant [Section 3553(a) ] factors” that guide sentencing. 543 U.S. at 234, 125 S.Ct. 738; cf. United States v. King, 454 F.3d 187, 194 (3d Cir.2006); Cooper, 437 F.3d at 327-28. We have interpreted Booker to require the following three steps: (1) Courts must continue to calculate a defendant’s Guidelines sentence precisely as they would have before Booker. (2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit’s pre-Booker case law, which continues to have advisory force. (3) Finally, they are required to exercise their discretion by considering the relevant § 3553(a) factors in setting" }, { "docid": "22695215", "title": "", "text": "268, 271 (3d Cir.2003), and we will continue that practice here. B. Challenges to the Sentences Brown and Wise next challenge, on a number of grounds, the sentences imposed upon them. We reject their arguments and affirm the District Court’s judgments of sentence. 1. Post-Booker Sentencing In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court held that the Sentencing Guidelines are advisory only. Recently, in Gall v. United States, — U.S. —, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), the Court reiterated the process a district court must undertake after Booker to determine the appropriate sentence for a defendant: [A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range. As a matter of administration and to secure nationwide consistency, the Guidelines should be the starting point and the initial benchmark. The Guidelines are not the only consideration, however. Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party. In so doing, he may not presume that the Guidelines range is reasonable. He must make an individualized assessment based on the facts presented. If he decides that an outside-Guidelines sentence is warranted, he must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one. After settling on the appropriate sentence, he must adequately explain the chosen sentence to allow for meaningful appellate review and to promote the perception of fair sentencing. Id. at 596-97 (internal citations omitted). The Supreme Court’s opinion in Gall reemphasizes the post-Booker sentencing structure set forth in this Court’s precedent. See, e.g., United States v. Ali, 508 F.3d 136, 142, 153-54 (3d Cir.2007) (district court must first calculate the applicable Guidelines range “precisely as [it] would have before Booker,’’ then “give meaningful consideration to" }, { "docid": "23331880", "title": "", "text": "$1,000 in violation of 18 U.S.C. § 1029(a)(2). Dalton pled guilty on March 1, 2004. On September 8, 2004, the district court sentenced him to a term of 105 months’ imprisonment, three years supervised release, restitution in the amount of $98,851.64, and a $100 special assessment under the then mandatory guidelines. Dalton appealed and this court remanded for resentencing in light of the Supreme Court’s intervening decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Dalton, 150 Fed.Appx. 219 (4th Cir.2005). On remand, the district court held a second sentencing hearing and re-sentenced Dalton to 105 months’ imprisonment under the advisory guidelines. Dalton now appeals the corrected sentence. II. A. Imposing a post-Booker sentence under the advisory guidelines is a multi-step process. United States v. Moreland, 437 F.3d 424, 432 (4th Cir.2006). First, the district court “must correctly determine, after making appropriate findings of fact, the applicable guidelines range.” Id. The court then considers whether a sentence within that range “serves the factors set forth in § 3553(a) and, if not, select[s] a sentence that does serve those factors.” United States v. Green, 436 F.3d 449, 456 (4th Cir.2006). In selecting a sentence outside the advisory guidelines range, the court should first consider whether appropriate grounds for departure exist. United States v. Davenport, 445 F.3d 366, 370 (4th Cir.2006); Moreland, 437 F.3d at 432. When “an appropriate basis for departure exists, the district court may depart.” Moreland, 437 F.3d at 432. “If the resulting departure range still does not serve the factors set forth in § 3553(a),” the court may impose a variance sentence. Davenport, 445 F.3d at 370. B. The district court in this case granted the government’s motion for upward departure on the ground that Dalton’s criminal history category inadequately reflected his actual criminal history. See U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 4A1.3 (2006). Because the district court properly imposed a departure sentence before considering a variance sentence, Davenport, 445 F.3d at 370, this case presents no question as to whether a variance sentence would be appropriate." }, { "docid": "22958173", "title": "", "text": "judicial fact-finding to determine their respective drug amounts violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and that the district court erred in applying § 3B1.1 role enhancements. In a decision filed on January 6, 2005, this court rejected defendants’ claims, but noted that a case then pending before the Supreme Court, United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), might affect their sentences. Given that possibility, this court advised defendants that they could file a petition for rehearing if Booker did, indeed, have an impact on their sentences. After the Supreme Court decided Booker on January 12, 2005, defendants petitioned this court for rehearing in light of that opinion. This court subsequently entered an order vacating the sentences of all three defendants and remanding the case to the district court for resentencing. Prior to their resentencing hearing, all three defendants filed motions arguing that Booker required the district court to order the preparation of new PSRs, which were to be based only upon facts that had been found by the jury beyond a reasonable doubt. Defendants also renewed all of their prior objections to the PSRs. The district court denied these motions because defendants failed to point out any factual inaccuracies in the PSRs or any legal authority for the proposition that facts used for sentencing purposes must be found by a jury. Further, with respect to defendants’ renewed objections to the PSRs, the district court held that it was without authority to reopen prior sentencing rulings, since the sole purpose of the remand was for the court to decide whether it would exercise its authority to vary from the Sentencing Guidelines. Defendants were resentenced on September 1, 2005. At the outset, the district court reiterated that its only task was to determine whether it wished to exercise its new discretionary authority under Booker and that it “ha[d] no authority to revisit the guidelines.” The district court then invited the parties to address the sentencing goals set forth in 18 U.S.C. § 3553(a). At this time," }, { "docid": "22466049", "title": "", "text": "and therefore, demonstrated that the court’s clear error affected his substantial rights. c. Even where a defendant’s substantial rights are violated, our court retains discretion to correct the reversible plain error only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Puckett, 129 S.Ct. at 1429. The substantial disparity between the imposed sentence and the applicable Guidelines range warrants the exercise of our discretion to correct the error. See United States v. Gonzalez-Terrazas, 529 F.3d 293, 299 (5th Cir.2008) (concluding that the imposition of a sentence that was substantially greater than the Guidelines range affected the defendant’s substantial rights and the fairness of the judicial proceedings). We vacate Mudekunye’s sentence and remand for resentencing. III. For the foregoing reasons, we AFFIRM on every ground with the exception of Mudekunye’s sentence which we VACATE and REMAND for resentencing. . Because we vacate and remand for resentencing, we need not address Mudekunye's argument that his sentence was procedurally unreasonable because the sentencing court treated the Guidelines as mandatory and ignored mitigating factors. RHESA H. BARKSDALE, Circuit Judge, dissenting in part: I dissent only from the majority’s, under plain-error review, requiring resentencing for Mudekunye (part U.B.2.). It has been almost 20 years since United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), clarified application of plain-error review. And, for reviewing sentences imposed through application of the Sentencing Guidelines, it has been over six years since United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), held the Guidelines are only advisory. In the light of Olano and Booker, it would seem that plain-error review would have been simplified and made more flexible. Unfortunately, if not amazingly, just the opposite has occurred. This is vividly reflected in the majority’s analysis and holding for Mudekunye’s sentence, through which it seeks to apply the Supreme Court’s and our precedent. It’s time for our court to step back, re-examine, and simplify this important and all too often complex aspect for applying plain-error review to sentences imposed under the advisory Guidelines. Accordingly, I urge our" }, { "docid": "21154446", "title": "", "text": "are reviewed for abuse of discretion. Gall v. United States, — U.S.-, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007). When reviewing a sentence for procedural reasonableness, we must hold that a district judge abused his or her discretion if he or she “committed [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.” Id. Analysis In weighing Defendant’s claim, it is worth noting what he does not argue on appeal. Defendant does not allege that his 68 month sentence is substantively unreasonable. Nor does Defendant raise a constitutional challenge to the prosecution’s decision to re-indict him after he had already been tried and convicted for crimes arising from the same criminal transaction. Rather, Defendant’s sole claim on appeal is that the district court committed reversible error when it failed to calculate the advisory Guidelines sentence in this case by failing to credit him the nine months he had already served on his prior wire fraud conviction. According to Defendant, “[e]ven though the Supreme Court declared the Guidelines advisory in Booker, the Circuit is still required to remand for resentencing if the District Court misapplies the Guidelines.” (Defendant’s Br. at 13.) We disagree. In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court declared unconstitutional § 3742(e) which requires a Court of Appeals to treat the Guidelines as mandatory. Id. at 245, 125 S.Ct. 738. Nevertheless, “[t]he remainder of [§ 3742] ‘functions independently,’ ” and therefore remains untouched by Booker. United States v. Milan, 398 F.3d 445, 456 (6th Cir.2005) (quoting Booker, 543 U.S. at 265, 125 S.Ct. 738). Under § 3742(f), a Court of Appeals must remand a sentence for further proceedings when it is “imposed as a result of an incorrect application of the sentencing guidelines.” § 3742(f). Furthermore, the Sentencing Guidelines state that “the court" }, { "docid": "22221440", "title": "", "text": "months and one day. Prior to sentencing, Haidley raised the issue of the constitutionality of the federal sentencing guidelines, specifically citing Blakely. In her motion to declare the guidelines unconstitutional Haidley argued: In sentencing the defendant in this manner, the court must still adhere to the statutory parameters set out by Congress. It may also consider the sentencing guidelines as ‘recommendations’ which are instructive but no longer binding on the court. However, the court is also free to consider any other information it deems relevant to determining the appropriate sentence. The district court rejected Haidley’s challenge and found that the system of mandatory guidelines remained constitutional. Consequently, we find that Haidley preserved error for purposes of our analysis of this case under the recently decided case of United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We assume for purposes of this opinion that the determination of the'sentencing guideline range in this case does not raise a Sixth Amendment issue as outlined in Booker, since Haidley stipulated to the loss amount. We also know from Booker that the remedial interpretation of the Sentencing Act as set forth in Justice Breyer’s majority opinion applies to all cases on direct review. Justice Breyer cautioned reviewing courts, however, that “in cases not involving a Sixth Amendment violation, whether resentencing is warranted or whether it will instead be sufficient to review a sentence for reasonableness may depend upon application of the harmless-error doctrine.” Booker, 125 S.Ct. at 769. The issue we face, then, may be framed as follows. Is it harmless error to sentence a defendant under a mandatory federal sentencing guideline regime, as opposed to the Booker advisory system, when there is no Sixth Amendment issue as to the guideline computation and the defendant is sentenced at the bottom' of the federal sentencing guideline range? We conclude that it is not harmless error and that the present case must be remanded for resentencing under the discretionary system set out in Booker. In determining 'whether an error is harmless, Federal Rule of Criminal Procedure 52(a) provides that any error" }, { "docid": "23214725", "title": "", "text": "must “be sufficient to deter other individuals who may be similarly situated,” J.A. at 91 (Sentencing Hr’g Tr. at 9), and more specifically that such a sentence must “include[ ] a significant term of incarceration,” J.A. at 92 (Sentencing Hr’g Tr. at 10). Consequently, the district court sentenced Liou to twelve months and one day of incarceration. Noting Liou’s family and business obligations, the district court permitted him to self-report within sixty days of the sentencing hearing. Liou timely filed a notice of appeal on October 19, 2006. II. ANALYSIS On appeal, Liou argues that the district court erred by (1) failing to discuss explicitly his familial circumstances, and (2) imposing a sentence that included jail time. (Liou concedes that the district court aptly addressed his request for a downward departure under Guideline § 5K2.20, and does not appeal the district court’s rejection of this request.) Liou requests that the district court’s sentence be vacated and that he be resentenced. A. Standard of Review After Liou appealed, the Supreme Court issued its decision in Rita. To determine the appropriate standard of review in this case, we must first consider the effect of Rita. 1. Our Post -Booker Jurisprudence In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court “transformed the Sentencing Guidelines from a mandatory scheme to an advisory resource.” United States v. Richardson, 437 F.3d 550, 553 (6th Cir.2006). The Court further held that in reviewing a district court’s sentence, we are to apply “a practical standard of review ... familiar to appellate courts: review for ‘unreasonableness].’ ” Booker, 543 U.S. at 261, 125 S.Ct. 738 (alteration in original). In our post-Booker jurisprudence we determined that “[rjeasonableness has both substantive and procedural components.” United States v. Jones, 489 F.3d 243, 250 (6th Cir.2007). As to procedural reasonableness, we have held that “[a] sentence may be procedurally unreasonable if the district judge fails to consider the applicable Guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate" }, { "docid": "9647657", "title": "", "text": "SENTENCING MEMORANDUM ADELMAN, District Judge. The government charged defendant John Smith with possession with intent to distribute more than 50 grams of cocaine base. The charge arose out of an investigation into the origin of a fire at defendant’s home, during which officers discovered crack and powder cocaine. Defendant pled guilty, and the probation office prepared a pre-sentence report (“PSR”) which calculated defendant’s offense level as 31 and his criminal history category as II, producing a guideline imprisonment range of 121-151 months. Under 21 U.S.C. § 841(b)(1)(A), a 10 year mandatory minimum sentence also applied. Defendant objected to one guideline enhancement recommended by the PSR. In addition, the government moved for a downward departure under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) based on defendant’s substantial assistance. In this memorandum, I discuss how I arrived at defendant’s sentence. First, I set forth the sentencing methodology that I believe is appropriate after the Supreme Court’s decision in United States v. Booker, _ U.S. _, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). I. POST-BOOKER SENTENCING METHODOLOGY Following Booker, a court will typically follow a three-step sentencing process. First, the court must determine the applicable advisory guideline range. Ordinarily, this will require resolution of objections to the PSR’s guideline calculations as well as any factual disputes. Second, the court must determine whether, pursuant to the Sentencing Commission’s policy statements, any departures from the advisory guideline range clearly apply. See U.S.S.G. ch. 5K. For example, in the present case the government moved for a substantial assistance departure under § 5K1.1. Finally, the court must determine the appropriate sentence in light of the factors set forth in 18 U.S.C. § 3553(a). The court may impose a sentence within the applicable guideline range (after any clearly applicable departures) if such is consistent with the court’s consideration of the § 3553(a) factors, or impose a non-guideline sentence if such is justified by the § 3553(a) factors. See United States v. Crosby, 397 F.3d 103, 112-13 (2d Cir.2005). A non-guideline sentence need not be supported by factors that would have justified a departure under the old, mandatory" }, { "docid": "8512953", "title": "", "text": "BOWMAN, Circuit Judge. Brian Fay Jeremiah pleaded guilty to a violation of 18 U.S.C. § 2425 (2000) for using interstate facilities to transmit information about a minor “with the intent to entice, encourage, offer, or solicit” criminal sexual activity, and the District Court sentenced Jeremiah to twenty-seven months’ imprisonment. Jeremiah appealed his sentence, raising a challenge based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). On appeal, a panel of this Court vacated Jeremiah’s sentence and remanded his case to the District Court for resentencing. United States v. Jeremiah, 135 Fed.Appx. 3 (8th Cir.2005) (per curiam) (unpublished). At his' resentencing hearing, Jeremiah requested a variance from the advisory Guidelines range based on the potential disparity between the sentence he might have received had he been convicted in Arkansas state court and the sentence he faced as a result of his conviction on the federal charge. The District Court refused to vary from the advisory Guidelines range on this basis, sentencing Jeremiah to the same twenty-seven-month term of imprisonment originally imposed. Jeremiah appeals, arguing that the District Court was required to consider the potential federal/state sentencing disparity under 18 U.S.C. § 3553(a)(6) (2000) and that the court’s failure to do so resulted in an unreasonable sentence. We affirm. Although application of the Sentencing Guidelines is- no longer mandatory, district courts are still required to consult the Guidelines and take them into account in calculating a defendant’s sentence. United States v. Booker, 543 U.S. 220, 264, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). A district court must calculate a defendant’s advisory Guidelines sentencing range based on his total offense level, criminal history category, and any appropriate departures. See United States v. Shannon, 414 F.3d 921, 923 (8th Cir.2005). The court may also vary from the advisory Guidelines range based on the factors set forth in 18 U.S.C. § 3553(a) as long as the resulting sentence is reasonable. See Booker, 543 U.S. at 261, 125 S.Ct. 738; United States v. Mashek, 406 F.3d 1012, 1017 (8th Cir.2005). Proper application of the Guidelines “remains the critical starting point”" }, { "docid": "22968758", "title": "", "text": "we reverse and remand the case for resentencing. DAMON J. KEITH, Circuit Judge, dissenting. I am saddened and distressed by the majority’s opinion, which totally disregards the district court’s authority to impose a fair and reasonable sentence that is “sufficient but not greater than necessary” to effectuate the purposes of sentencing. Reversing the district court’s sentence is a complete miscarriage of justice. Therefore, I respectfully dissent. For years, district court judges have grappled with mandatory sentencing guidelines that constrained their power to impose just sentences. In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court granted district courts the power to evaluate the circumstances of each case and make an individualized sentencing determination. Regrettably, the majority’s holding, finding Davis’s sentence substantively unreasonable, strips the district courts of its power to issue a reasonable sentence in accordance with the now advisory sentencing guidelines. Here, in accordance with Booker, the district court complied with the Supreme Court’s mandate. Therefore, I cannot agree with the majority’s holding. Booker drastically changed the sentencing guidelines. As the guidelines are advisory, the district courts must now consider the applicable guideline range along with the factors set forth in 18 U.S.C. § 3553(a) and make an individualized sentencing determination. Booker, 543 U.S. at 261, 125 S.Ct. 738. The Guidelines are now “generalized recommendations about the range of sentences appropriate for certain crimes committed by individuals with certain backgrounds.” United States v. Buchanan, 449 F.3d 731, 736 (6th Cir.2006) (J. Sutton, concurring). The majority properly finds that the district court’s sentence was procedurally reasonable, but erroneously finds the substantive sentence unreasonable. See Majority Op. at 4. I cannot concur with the majority’s holding because (1) the majority opinion fails to properly defer to the district court and (2) the district court, viewing the totality of the facts, properly found extraordinary circumstances to justify the departure from the advisory guideline range. I. Deference to the District Court The majority finds that the variance in this case justifies finding the sentence substantively unreasonable. Other circuits have accorded the district courts proper deference" }, { "docid": "22584760", "title": "", "text": "within a higher guidelines range at the initial sentencing, it must impose a sentence within the corrected lower guidelines range on remand. See Dissenting Op. at 1278 (“Nothing in the record at Rosales-Bruno’s initial sentencing hearing suggests that the court viewed Rosales-Bruno as the type of defendant who warranted an upward variance at' all.... ”). In other words, the advisory guidelines become mandatory on remand. That is not the law. See United States v. Booker, 543 U.S. 220, 246, 125 S.Ct. 738, 757, 160 L.Ed.2d 621 (2005); Irey, 612 F.3d at 1183; see also Spencer v. United States, 773 F.3d 1132, 1141-42 (11th Cir.2014) (noting the “advisory nature of every provision of the guidelines” and stating that “a district judge cannot treat th[e] guideline[s] as mandatory”). As the Booker decision establishes, the guidelines and their application provide advice about sentencing; they do not control it. See Booker, 543 U.S. at 246, 125 S.Ct. at 757; Irey, 612 F.3d at 1183. That is why a change in the guidelines range may lead to a change in the sentence but does not require one. The district court must consider the advisory guidelines range in making the sentencing decision, but it is only one of a dozen or so factors that the court must take into account. See Booker, 543 U.S. at 245, 125 S.Ct. at 757; see also 18 U.S.C. § 3553(a). The Supreme Court has been clear that “[t]he Guidelines are not the only consideration.... Accordingly, after giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence re quested by a party.” Gall, 552 .U.S. at 49-50,128 S.Ct. at 596. That is exactly what the district court did in resentencing Rosales-Bruno. It correctly recalculated the advisory guidelines range, it gave both parties the opportunity to argue for the sentence they thought appropriate, and it then considered the remaining § 3553(a) sentencing factors in deciding what the sentence should be. The court exercised its authority to assign heavier weight to" }, { "docid": "8738092", "title": "", "text": "defense and prosecution, the judge announced that “[t]he sentence I impose, Neal, is that you’re going to be sentenced to a period of incarceration of 240 months, period,” N. Benjamin Resentencing Tr. at 15, though he once again adopted the calculations of the PSR — which provided for a 40-year sentence — in his written judgment. When, as before, the prosecutor pressed the court to explain this departure, defense counsel volunteered that the reasoning was contained in the notice read into the record. The district judge agreed with this suggestion, adding that he had “considered Neal’s case along with his brother’s, and everything together, for the long period of time that the case has been in front of me. I think everything is adequately on the record.” N. Benjamin Resentencing Tr. at 17. In his written judgment, the judge stated that “[t]he Court imposed a non-guideline sentence pursuant to the factors set forth in 18 U.S.C. § 3553 as read into the record at sentencing.” Once again, both sides appealed. DISCUSSION Because of our disposition of the cross-appeal, the sentences must be vacated and the case remanded to another judge for yet another resentencing. We therefore do not address the Benjamins’ claims at this time. Title 18 U.S.C. § 3553(c) requires a sentencing court to state the reasons for imposing a particular sentence. It reads, in relevant part, that “[t]he court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence..18 U.S.C. § 3553(c). If the sentence is outside the range described in the Sentencing Guidelines, the court must also provide “the specific reason for the imposition of a sentence different from that described [in the Guidelines], which reasons must also be stated with specificity in the written order of judgment....” Id. § 3553(c)(2). While United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), rendered the Sentencing Guidelines advisory rather than mandatory, it did not alter a sentencing judge’s obligations under Section 3553(c). “[T]he Supreme Court left unimpaired Section 3553(c), which requires a district court to" }, { "docid": "5893393", "title": "", "text": "in this case, we conclude that the government did not breach a material term of the agreement. The plea agreement stated: “Absent a departure or other downward sentencing benefit to the defendant from the guideline range anticipated by the Presentence Report, the United States Attorney agrees to recommend a sentence at the low end of the applicable Guideline range.” (Plea Agreement ¶ lc) (emphasis added). Here, the guideline range “anticipated by the Presentence Report” did not include a downward adjustment for acceptance of responsibility. Borer then received this “downward sentencing benefit” when the district court sustained his objection to the report. Accordingly, under the plain language of the plea agreement, the government was not required to recommend a sentence at the low end of the sentencing range, and there was no breach of the agreement. V. In a previous opinion filed on January 5, 2005, we observed that Borer had filed a motion for leave to file a supplemental brief challenging the constitutionality of the United States Sentencing Guidelines based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), but that we would not reach that issue until after the Supreme Court decided United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which was then pending. The Court now has decided Booker, and declared that the sentencing guidelines are effectively advisory in all cases. In a petition for rehearing, Borer argues that the case should be remanded for resentencing under the advisory guideline scheme. Because this case must be remanded for resentencing due to an incorrect application of the guidelines, we conclude that the district court also should resentence Borer in light of Booker. See United States v. Huber, 404 F.3d 1047, 1064 (8th Cir.2005). ****** For the foregoing reasons, we uphold the district court’s ruling with respect to most of the disputed sentencing issues, but we vacate Borer’s sentence and remand for resentencing with a three-level reduction for acceptance of responsibility and consistent with the current state of the sentencing guidelines. . Prior to an amendment effective on April 30," }, { "docid": "23397322", "title": "", "text": "the mandatory counseling and monitoring that would be required under the federal supervised release program. Noting the advisory nature of the Guidelines after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the court then cited additional reasons for its decision to “impose a sentence that is slightly distinct from what [the Guidelines] otherwise would have suggested,” emphasizing its disagreement with the mandatory minimum prison sentence required under 18 U.S.C. § 2422(b): [T]he United States Probation Office is not the only resource. There are State, County, City programs and there are the State registration and monitoring stuff and it seems to me ... it’s redundant and in absence of a statutory minimum, this offense probably should bear a short prison time and a long period of supervised release, if I were making the policy, which I’m not. So he gets the five years [of imprisonment]. 2 R. 11. The district court entered its final judgment on April 15, 2005. On May 10, 2005, the government timely filed a protective notice of appeal under 18 U.S.C. § 3742(b) and Fed. R.App. P. 4(b)(1)(B)® to challenge the lack of supervised release in the district court’s sentence. II. STANDARD OF REVIEW In Booker, the Supreme Court struck down the mandatory Guidelines regime, holding that the mandatory aspect of the Guidelines sentencing scheme violated a defendant’s Sixth Amendment right to a jury trial. Booker, 543 U.S. at 233-34, 125 S.Ct. 738; see United States v. Mares, 402 F.3d 511, 518 (5th Cir.2005). Although the Guidelines are now advisory rather than mandatory, under Booker, a district court still must calculate the sentencing range under the Guidelines as a starting point and consider it as one of many factors when selecting an appropriate sentence. Booker, 543 U.S. at 260, 125 S.Ct. 738; Mares, 402 F.3d at 518. Even post-Booker, we review the district court’s interpretation and application of the Guidelines de novo. United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005). We will accept findings of fact made in connection with sentencing unless clearly erroneous." }, { "docid": "7505640", "title": "", "text": "that Blakely was ertended to the federal Sentencing Guidelines. Weston thus preserved his allegation of error under the subsequent holding of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). See United States v. Pirani, 406 F.3d 543, 549-50 (8th Cir.2005) (en banc). Therefore, we review his sentence for harmless error. United States v. Cullen, 432 F.3d 903, 906 (8th Cir.2006). The government bears the burden of proving that the error was harmless, which requires the government to demonstrate that the district court would have ordered the same sentence if the Guidelines were advisory. United States v. Ellis, 417 F.3d 931, 933 (8th Cir.2005). In this case, the government concedes that the district court ordered an alternative sentence of 240 months’ imprisonment if the Guidelines were later held advisory. After sentencing Weston to the 360-month minimum sentence under the Guidelines, the district court stated If I were freed of the strictures imposed by the sentencing guidelines, this is the case in which I would impose the mandatory minimum sentence of 20 years. So if this case should come back to me for resentencing [sic] and if the guidelines are discretionary at that time, that would be the sentence that I would impose. (Sentencing Tr. at 14). The district court announced its alternative sentence without applying the sentencing factors set forth in 18 U.S.C. § 3553(a). Given the district court’s definitive statements, the government cannot show that the mandatory application of the Guidelines was harmless error. The issue then becomes the appropriate remedy— whether to impose the alternative sentence or whether to remand for re-sentencing. Post -Booker, the calculation of the Guidelines range represents the “critical starting point.” United States v. Thomas, 422 F.3d 665, 669 (8th Cir.2005); see also United States v. Haack, 403 F.3d 997, 1002-03 (8th Cir.2005). The district court may then exercise its discretion to impose a sentence within or outside of the Guidelines range by taking into account the factors set forth in § 3553(a). Thomas, 422 F.3d at 669. Based upon the record before us, we cannot tell whether the" }, { "docid": "12826604", "title": "", "text": "We also concluded that the court had improperly granted Thurston a downward departure because of his good works. The guidelines permitted such departures only in cases where the defendant’s good works “were exceptional.” Id. at 78-79. While Thurston had a history of good works, such efforts could not be deemed extraordinary in light of both the nature of the offense and Thurston’s status as a corporate executive with the means to undertake significant charitable endeavors. Id. at 79-80. We therefore remanded with instructions that the guideline sentence of 60-months’ imprisonment be imposed. Id. at 82. Thurston filed a petition for a writ of certiorari with the United States Supreme Court. While Thurston’s petition was pending, two relevant events occurred. First, the trial judge recused himself because he could not impose the sentence “prescribed by the Court of Appeals.” Second, the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which replaced the mandatory guideline regime with an advisory system. The Supreme Court subsequently granted Thurston’s petition, vacated this court’s judgment, and remanded for further consideration in light of Booker. Thurston v. United States, 543 U.S. 1097, 125 S.Ct. 984, 160 L.Ed.2d 988 (2005). After additional briefing, we remanded for resentencing and ordered that the court consider whether an obstruction-of-justice enhancement should be applied to Thurston’s guideline range. Following the reassignment of the case to the district court judge who issued the sentence challenged in this appeal, Thurston argued that he should receive the original sentence imposed because “unwarranted disparities between codefendants” and “good works” could be considered post -Booker. The government responded that Thurston should receive the 60-month sentence contemplated in Thurston I. The district court expeditiously convened a hearing to determine Thurston’s sentence. It began its analysis by accepting the findings made during Thurston’s original sentencing and concluded that an obstruction-of-justice enhancement was not warranted. After determining that the recommended guideline sentence was 60 months, the court considered whether a lower sentence was appropriate under the sentencing factors set forth in 18 U.S.C. § 3553(a). Among these factors are the need" }, { "docid": "5366850", "title": "", "text": "minimum sentence for this case. The district judge cannot raise the mandatory sentencing floor based on its own determination that Claybrooks’s offense involved additional amounts of narcotics beyond those determined by the jury. Cf. Alleyne, 133 S.Ct. at 2162 (“[I]f a judge were to find a fact that increased the statutory maximum sentence, such a finding would violate the Sixth Amendment”). Although judicially determined facts are no longer relevant to deciding the applicable mandatory minimum, a district court should continue to make whatever factual findings are needed to calculate a defendant’s advisory Guidelines range. See id. at 2163 (“Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury”); United States v. Booker, 543 U.S. 220, 233, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (“[W]hen a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant”); Apprendi v. New Jersey, 530 U.S. 466, 481, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (“[Njothing in this history suggests that it is impermissible for judges to exercise discretion—taking into consideration various factors relating both to offense and offender—in imposing a judgment within the range prescribed by statute”) (emphasis in original). On remand, the district court must independently determine the amount of cocaine involved in Claybrooks’s offense in order to calculate his advisory sentencing range under the Guidelines. See generally Gall, 552 U.S. at 49, 128 S.Ct. 586. III. CONCLUSION We Affirm Claybrooks’s conviction. We Vacate Claybrooks’s sentence and Remand for resentencing consistent with this opinion. . Following the Supreme Court’s decision in Alleyne, we asked the parties to file supplemental briefing on the effect, if any, of the Court's decision on the sentencing in this case. In response, each side filed a supplemental brief discussing whether Claybrooks’s sentence violated his rights under the Sixth Amendment. While we thank the parties for their efforts, we need not decide the issue in light of our remand based on the absence of a drug quantity determination. At" }, { "docid": "22746882", "title": "", "text": "18 U.S.C. § 3553(b)(1) and 18 U.S.C. § 3742(e), that made the Guidelines mandatory but leaving the rest of the Guidelines intact). Thus, Booker rendered the Sentencing Guidelines advisory, but the Court stressed in that case that a sentencing court still must take the Guidelines into account at sentencing along with the factors set forth in § 3553(a). Booker, 543 U.S. at 264, 125 S.Ct. 738. The Book er Court also instructed appellate courts to review a sentencing decision for reasonableness. Id. at 260-62, 125 S.Ct. 738. According to the Court, reasonableness review served “to iron out sentencing differences.” Id. at 263, 125 S.Ct. 738. Recently, the Supreme Court decided two cases which together explain in detail the mechanics of Booker’s remedial holding. See Gall v. United States, - U.S. -, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); Kimbrough v. United States, — U.S. -, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). In Gall, the Court instructed that the sentencing court should first calculate the applicable Guidelines range. 128 S.Ct. at 596-97. This starting point furthers Congress’ desire for efficient administration and nationwide consistency in sentencing. Id. After calculating the Guidelines range, the sentencing court must give both the government and the defendant “an opportunity to argue for whatever sentence they deem appropriate.” Gall, 128 S.Ct. at 596-97. The sentencing court should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by either party. Id.; see also Kimbrough, 128 S.Ct. at 569 (noting that, while § 3553(a) requires the sentencing court to give due consideration to the Guidelines, Booker allows the sentencing court to fashion the sentence in light of other statutory considerations). In so doing, the sentencing court may not presume that the Guidelines range is reasonable. Gall, 128 S.Ct. at 596. In the event the sentencing court decides to impose a variance sentence, i.e., one outside of the recommended Guidelines range, the sentencing court “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Id. As noted by the" } ]

[ { "docid": "22090448", "title": "", "text": "complete. Based upon this factual development, the Government moved to dismiss Hardy’s appeal as moot prior to oral argument. II. The Government contends that Hardy’s release moots his appeal. Because “[t]he doctrine of mootness constitutes a part of the constitutional limits of federal court jurisdiction,” Brooks v. Vassar, 462 F.3d 341, 348 (4th Cir.2006), we address it first, and in this case, resolution of that question is determinative. Stated in its simplest form, “a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). “The inability of the federal judiciary to review moot cases derives from the requirement of Art. Ill of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.” DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (internal quotation marks omitted). And, because “[t]his case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate,” Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990) (emphasis added), “[l]itigation may become moot during the pendency of an appeal,” Incumaa v. Ozmint, 507 F.3d 281, 286 (4th Cir.2007); see also Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (“The requisite personal interest that must exist at the commencement of the litigation ... must continue throughout its existence.” (internal quotation marks omitted)). Clearly, if Hardy were still serving his fourteen-month sentence, no mootness concerns would exist. See Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (“An incarcerated convict’s (or a parolee’s) challenge to the validity of his conviction always satisfies the case-or-controversy requirement....”). But, “[o]nce the convict’s sentence has expired ... some concrete and continuing injury other than the now-ended incarceration or parole — some ‘collateral consequence’ of the conviction' — must exist if the suit is to be maintained.” Id. The Supreme Court has" } ]

[ { "docid": "19625041", "title": "", "text": "136 S.Ct. at 1547 ; Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The plaintiff must have (1) suffered an injury in fact (2) that is fairly traceable to the challenged conduct of the defendant and (3) that is likely to be redressed by a favorable decision. Lujan , 504 U.S. at 560-61, 112 S.Ct. 2130. It is not necessary for all plaintiffs to demonstrate Article III standing. Rather, \"one party with standing is sufficient to satisfy Article III's case-or-controversy requirement.\" Texas v. United States , 809 F.3d 134, 151 (5th Cir. 2015) (quoting Rumsfeld v. Forum for Academic & Institutional Rights, Inc. , 547 U.S. 47, 52 n.2, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) ). \"Prudential standing requirements exist in addition to 'the immutable requirements of Article III,' ... as an integral part of 'judicial self-government.' \" ACORN v. Fowler , 178 F.3d 350, 362 (5th Cir. 1999) (quoting Lujan , 504 U.S. at 560, 112 S.Ct. 2130 ). \"The goal of this self-governance is to determine whether the plaintiff 'is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial power.' \" Id. (quoting Bender v. Williamsport Area Sch. Dist. , 475 U.S. 534, 546 n.8, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) ). The Supreme Court has observed that prudential standing encompasses \"at least three broad principles,\" including \"the general prohibition on a litigant's raising another person's legal rights ....\" Lexmark Int'l, Inc. v. Static Control Components, Inc. , 572 U.S. 118, 134 S.Ct. 1377, 1386, 188 L.Ed.2d 392 (2014) ; Cibolo Waste , 718 F.3d at 474 (quoting Elk Grove , 542 U.S. at 12, 124 S.Ct. 2301 ). As the parties invoking jurisdiction, the Plaintiffs must show the requirements of standing are satisfied. See Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001). B. Summary Judgment Summary judgment is proper when the pleadings and evidence show \"that there is no genuine dispute as to any material fact and the movant is entitled to judgment as" }, { "docid": "21395994", "title": "", "text": "those powers specifically granted to them by Congress or directly by the United States Constitution. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). The plaintiff bears the burden of establishing by a preponderance of the evidence that the Court has subject matter jurisdiction to hear the case. See Shuler v. United States, 531 F.3d 930, 932 (D.C.Cir.2008). In deciding whether to grant a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), the court must “accept all of the factual allegations in [the] complaint as true.” Jerome Stevens Pharmaceuticals, Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 54 (D.C.Cir.2005) (quoting United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991)). The Court may also consider matters outside the pleadings, and may rest its decision on its own resolution of disputed facts. See Herbert v. Nat’l Acad. of Sci., 974 F.2d 192, 197 (D.C.Cir.1992). B. Standing As a threshold matter, Defendants argue that Plaintiffs do not have standing. Article III of the Constitution limits the jurisdiction of federal courts to certain “Cases” and “Controversies.” See U.S. Const, art. 3, § 2. “[N]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Clapper v. Amnesty Int’l USA, — U.S. -, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589, (2006)). “One element of the case-or-controversy requirement is that plaintiffs must establish that they have standing to sue.” Id. (internal quotation marks and citation omitted). “[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact ... which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of ... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by" }, { "docid": "8447336", "title": "", "text": "States, and Treaties made, or which shall be made, under their Authority; — to all Cases affecting Ambassadors, other public Ministers and Consuls; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; — to Controversies between two or more States;— between a State and Citizens of another State,. — between Citizens of different States, — ■ between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”); see Clapper v. Amnesty Int’l USA, - U.S. -, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013). .Clapper, 133 S.Ct. at 1146 (internal quotation marks omitted). . Hedges v. Obama, 724 F.3d 170, 188 (2d Cir.2013) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). . Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 91 (2d Cir.2009) (quoting Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., - U.S. -, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014)). . Elk Grove, 542 U.S. at 12, 124 S.Ct. 2301 (internal quotation marks omitted). . See Lujan, 504 U.S. at 561, 112 S.Ct. 2130; Rajamin v. Deutsche Bank Nat’l Tr. Co., 757 F.3d 79, 84 (2d Cir.2014). . Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir.2005). . Lerner v. Fleet Bank, N.A., 318 F.3d 113, 126 (2d Cir.2003). . Keepers, 944 F.Supp.2d at 172 (emphasis supplied). . Id. at 151 (emphasis supplied) (internal quotation marks omitted). . See Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 366-67, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010) (describing a corporation’s challenge to a disclosure requirement). . Keepers Br. Summ. J., Doc. 51, at 61 (emphasis supplied). . Keepers Reply Br. 8 (emphasis supplied) . Id. . Id. at 10. . Id. at 11 (emphasis supplied); cf. Keepers," }, { "docid": "5980248", "title": "", "text": "In such circumstances, the PBGC may order the statutory trustee to return all or part- of the plan’s assets to the plan administrator so that the plan may resume normal functioning. Id. Thus, EBISA does not give the PBGC in its capacity as guarantor any powers of plan administration. Rather, these powers are given to the “trustee,” which may or may not be the PBGC. As guarantor, then, the PBGC’s function with respect to a terminated plan is limited to calculating the amount necessary to guarantee each participant’s non-forfeitable benefits and paying that amount to the trustee. B. We review questions of standing de novo. White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459 (4th Cir.2005). Because “federal courts ... have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto,” a plaintiff must possess both Article III and statutory standing, or the federal court to which the plaintiff has come has no power to decide his case. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). To this end, “[e]very federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it.” Id. (internal quotation marks omitted). And as the party invoking federal jurisdiction, Ruffin bears the burden of establishing his standing. DaimlerChrysler Corp. v. Cuno, — U.S. -, 126 S.Ct. 1854, 1861, 164 L.Ed.2d 589 (2006); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). As the Supreme Court has explained, “[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)(internal quotation marks omitted). “Article III standing ... enforces the Constitution’s case-or-controversy requirement.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct." }, { "docid": "7861187", "title": "", "text": "a “threshold question! ] of justiciability.” Lansdowne on the Potomac Homeowners Ass’n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d 187, 195 (4th Cir. 2013) (Lansdowne); see also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (explaining that “[i]f a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so”). The issue of ripeness entails an analysis considering the fitness of the issues before the court, as well as the hardship that the parties will experience if the court withholds consideration of the dispute. Lansdowne, 713 F.3d at 197-98 (citing Miller v. Brown, 462 F.3d 312, 319 (4th Cir.2006)). “The doctrine of ripeness prevents judicial consideration of issues until a controversy is presented in clean-cut and concrete form.” Miller, 462 F.3d at 318-19 (citation and internal quotation marks omitted). As explained by the Supreme Court, the purpose of the ripeness doctrine is to require courts to avoid taking premature judicial action, thereby preventing them from becoming entangled in “abstract disagreements.” Abbott Labs. v. Gardner, 387 U.S. 136, 148, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). A case is fit for adjudication “when the action in controversy is final and not dependent on future uncertainties.” Miller, 462 F.3d at 319; Franks v. Ross, 313 F.3d 184, 195 (4th Cir.2002). Stated alternatively, “[a] claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (citation and internal quotation marks omitted); see also Bryant Woods Inn, Inc. v. Howard Cnty., Md., 124 F.3d 597, 602 (4th Cir. 1997) (in determining whether a claim is ripe, we “decide whether the issue is substantively definitive enough to be fit for judicial decision and whether hardship will result from withholding court consideration”). An issue becomes" }, { "docid": "18313656", "title": "", "text": "BCBSM-adminis-tered and non-BCBSM-administered coverage options, we now consider whether Plaintiffs have standing to bring suit against BCBSM. Because “federal courts ... have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto,” a plaintiff must possess both constitutional and statutory standing in order for a federal court to have jurisdiction. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). Thus, even where statutory standing pursuant to ERISA is satisfied, the elements of Article III must be met. Cent. States Se. & Sw. Areas Health and Welfare Fund v. Merck-Medco Managed Care, 433 F.3d 181, 199 (2nd Cir.2005). Congress “cannot erase Article Ill’s standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.” Raines v. Byrd, 521 U.S. 811, 820 n. 3, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). As the Supreme Court has explained, “[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Id. at 818, 117 S.Ct. 2312 (internal quotation marks omitted). “Article III standing ... enforces the Constitution’s case-or-controversy requirement.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). In evaluating a party’s standing, this Court must determine whether the plaintiff has alleged “ ‘such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.” Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). As the party invoking federal jurisdiction, Plaintiffs bear the burden of establishing standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). If Plaintiffs cannot establish constitutional standing, their claims must be dismissed for lack of subject matter jurisdiction. Cent. States, 433 F.3d at 198." }, { "docid": "8518489", "title": "", "text": "the Bar of the Supreme Court of Pennsylvania by [May 15, 2005].” According to the Office of Disciplinary Counsel, Surrick has yet to pay the costs of the disciplinary proceedings and has failed to enroll in the required CLE courses. The Office of Disciplinary Counsel contends that Surrick’s excuse — that the amount of costs is in dispute and that he is awaiting the outcome on appeal — is not valid and that he should have contested the amount of costs before the Pennsylvania Supreme Court. The starting point for our mootness analysis is the familiar proposition that “ ‘federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them.’ ” DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (quoting North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971)). Article III requires that an actual, live controversy “be extant at all stages of review, not merely at the time the complaint is filed.” Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); see also DeFunis, 416 U.S. at 316, 94 S.Ct. 1704 (“The inability of the federal judiciary to review moot cases derives from the requirement of Art. Ill of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.”) (quotation omitted). “A central question in determining mootness is whether a change in circumstances since the beginning of the litigation precludes any occasion for meaningful relief.” Old Bridge Owners Co-op. Corp. v. Twp. of Old Bridge, 246 F.3d 310, 314 (3d Cir.2001); see also 13A C. Wright, et al., Federal Practice and Procedure § 3533, at 261 (1984). The “burden of demonstrating mootness ‘is a heavy one.’ ” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)). As discussed in more detail in Part VI, we agree with" }, { "docid": "11591889", "title": "", "text": "this matter given the foregoing optics of this particular matter—a debtor seeking to enforce a third-party protection when no direct protection was available. “In every federal case, the party bringing the suit must establish standing to prosecute the action.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., — U.S. -, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014). When standing is at issue, the central inquiry is “whether the plaintiff has ‘alleged such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal court jurisdiction and to justify exercise of the court’s remedial powers on his behalf. Simon v. Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), quoting Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (emphasis omitted). Standing questions arise on two levels: the Article III case or controversy question and the question regarding prudential limits on a court’s exercise of its authority. See United States v. Windsor, — U.S. -, 133 S.Ct. 2675, 2685, 186 L.Ed.2d 808 (2013); Elk Grave, 542 U.S. at 11-12, 124 S.Ct. 2301. With respect to the former, the Supreme Court has made clear that there are three elements to satisfy: First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized; and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical’”. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations and footnote omitted). Here there is a" }, { "docid": "19745100", "title": "", "text": "in this case, as the court’s consideration of the merits of the Appeal Rule challenge is foreclosed by its ripeness analysis. III. DISCUSSION A. Justiciability Before turning to the merits of Wild-law’s claims, the court must resolve two justiciability issues raised by the Forest Service: standing and ripeness. The court cannot adjudicate this case on the merits if it finds either that Wildlaw lacks standing to bring this suit or that its claims are not ripe for adjudication. 1. Standing The court has an obligation, at the outset of a case, to assure itself that the plaintiff has standing. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1169 (11th Cir.2006). The constitutional standing doctrine is a product of the case- or-controversy requirement of Article III. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004); Sierra Club v. Johnson, 436 F.3d 1269, 1275 (11th Cir.2006). A plaintiff must demonstrate Article III standing in order to invoke the jurisdiction of a federal court. DaimlerChrysler Corp. v. Cuno, — U.S.-,-& n. 3, 126 S.Ct. 1854, 1861 & n. 3, 164 L.Ed.2d 589 (2006). There are three fundamental elements of standing under Article III: “First, the plaintiff must have suffered an ‘injury in fact’-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks, ellipses, brackets, and footnote omitted); see also Ouachita Watch League, 463 F.3d at 1170. These" }, { "docid": "20416847", "title": "", "text": "2008) (citations omitted). 3. Discussion For Plaintiffs’ proposed class to be certified, as noted above, the following must be met: (1) Rule 23(a) requirements; (2) Rule 23(b)(2) requirements; and (3) the two implicit requirements outlined above. This Court will address each of these requirements in this Order. This Court will also follow relevant portions the Memorandum Opinion from Judge Barnes dated March 31, 2009 wherein he addressed many of these requirements. ECF No. 63. As an initial matter, this Court will address whether the named Plaintiffs have standing to seek injunctive and corresponding declaratory relief and whether this case is moot. These issues must be addressed at the outset because if the named Plaintiffs do not have standing or cannot present cognizable individual claims for relief against Defendant, then they may not serve as representatives of the class. See Burris v. First Fin. Corp., 928 F.2d 797, 806 (8th Cir.1991) (affirming the district court’s holding that where the named class representatives did not have a “cognizable individual claim for relief,” they could not serve as class representatives). A. Constitutional Considerations Under Article III of the United States Constitution, federal courts may only adjudicate actual cases and controversies. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). “Article III standing ... enforces the Constitution’s case-or-controversy requirement.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). The constitutional requirements of standing and mootness are interrelated requirements of Article III. “The core component of the requirement that a litigant have standing to invoke the authority of a federal court is an essential and unchanging part of the case-or-controversy requirement of Article III.” DaimlerChrysler Corp., 547 U.S. at 342, 126 S.Ct. 1854 (quotations omitted). “To show Article III standing, a plaintiff has the burden of proving: (1) that he or she suffered an ‘injury-in-fact,’ (2) a causal relationship between the injury and the challenged conduct, and (3) that the injury likely will be redressed by a favorable decision.” Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir.2000)" }, { "docid": "19625040", "title": "", "text": "to pursue its claims.\" Cibolo Waste, Inc. v. City of San Antonio , 718 F.3d 469, 473 (5th Cir. 2013). Standing doctrine is rooted in the Constitution's grant of judicial power to adjudicate cases or controversies. \"The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood.\" Spokeo, Inc. v. Robins , --- U.S. ----, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). \"The doctrine of standing asks 'whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.' \" Cibolo Waste , 718 F.3d at 473 (quoting Elk Grove Unified Sch. Dist. v. Newdow , 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) ). Standing has both constitutional and prudential components. See id. (quoting Elk Grove , 542 U.S. at 11, 124 S.Ct. 2301 ) (stating standing \"contain[s] two strands: Article III standing ... and prudential standing\"). The \"irreducible constitutional minimum\" of Article III standing consists of three elements. Spokeo , 136 S.Ct. at 1547 ; Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The plaintiff must have (1) suffered an injury in fact (2) that is fairly traceable to the challenged conduct of the defendant and (3) that is likely to be redressed by a favorable decision. Lujan , 504 U.S. at 560-61, 112 S.Ct. 2130. It is not necessary for all plaintiffs to demonstrate Article III standing. Rather, \"one party with standing is sufficient to satisfy Article III's case-or-controversy requirement.\" Texas v. United States , 809 F.3d 134, 151 (5th Cir. 2015) (quoting Rumsfeld v. Forum for Academic & Institutional Rights, Inc. , 547 U.S. 47, 52 n.2, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) ). \"Prudential standing requirements exist in addition to 'the immutable requirements of Article III,' ... as an integral part of 'judicial self-government.' \" ACORN v. Fowler , 178 F.3d 350, 362 (5th Cir. 1999) (quoting Lujan , 504 U.S. at 560, 112 S.Ct. 2130 ). \"The goal of this self-governance" }, { "docid": "21395995", "title": "", "text": "standing. Article III of the Constitution limits the jurisdiction of federal courts to certain “Cases” and “Controversies.” See U.S. Const, art. 3, § 2. “[N]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Clapper v. Amnesty Int’l USA, — U.S. -, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589, (2006)). “One element of the case-or-controversy requirement is that plaintiffs must establish that they have standing to sue.” Id. (internal quotation marks and citation omitted). “[T]he irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an injury in fact ... which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of ... Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks, citations, and footnote omitted). “A plaintiffs burden to demonstrate standing grows heavier at each stage of the litigation.” Osborn v. Visa Inc., No. 14-7004, 797 F.3d 1057, 1063, 2015 WL 4619874, at *4 (D.C.Cir. Aug. 4, 2015) (citing Lujan, 504 U.S. at 561, 112 S.Ct. 2130). “At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we ‘presume that the general allegations embrace those specific facts which are necessary to support the claim.’ ” Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (quoting Lujan v. National Wildlife Federation, 497 U.S. 871, 889, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). Our Court of Appeals recently reiterated and emphasized the requirement that courts must “accept as true all material allegations of the complaint” at the pleadings stage. Osborn, 797 F.3d at 1064, 2015 WL 4619874, at *5 (internal citation omitted). In Osborn, the" }, { "docid": "23506034", "title": "", "text": "plaintiffs injury will be remedied by the relief plaintiff seeks in bringing suit). Sprint Commc’ns Co., 128 S.Ct. at 2535 (quoting Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130) (further quotation, alterations omitted); see also Cortes, 508 F.3d at 161. “In this manner does Art. Ill limit the federal judicial power ‘to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.’ ” Valley Forge Christian Coll., 454 U.S. at 472, 102 S.Ct. 752 (quoting Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)). “Determining that a matter before the federal courts is a proper case or controversy under Article III therefore assumes particular importance in ensuring that the Federal Judiciary respects the proper — and properly limited — role of the courts in a democratic society.” DaimlerChrysler Corp., 547 U.S. at 341, 126 S.Ct. 1854 (quotation omitted). “[N]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Id. (quotations omitted). “If a dispute is not a proper case or controversy, the courts have no business deciding it....” Id. Of particular relevance to this case, a plaintiff must allege an actual, concrete injury. See Sprint Commc’ns Co., 128 S.Ct. at 2535; Lujan, 504 U.S. at 560, 112 S.Ct. 2130. It is not enough to assert a generalized, abstract grievance shared by a large number of similarly situated people. See Valley Forge Christian Coll., 454 U.S. at 482-83, 102 S.Ct. 752 (citing cases). We go on to discuss prudential standing. 2. Prudential standing requirements In contrast to constitutional standing, prudential standing “embodies judicially self-imposed limits on the exercise of federal jurisdiction.” Elk Grove Unified Sch. Dist., 542 U.S, at 11, 124 S.Ct. 2301 (quotation omitted). Although the Supreme Court has not exhaustively defined the prudential dimensions of the standing doctrine, [the Court has] explained that prudential standing encompasses the general prohibition on a litigant’s raising another person’s legal rights," }, { "docid": "10622459", "title": "", "text": "our own jurisdiction before deciding the merits of a dispute. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000); Friery v. L.A. Unified Sch. Dist., 448 F.3d 1146, 1148 (9th Cir.2006). The Constitution’s case-or-controversy limitation on federal judicial authority is the lynchpin for standing and ripeness jurisprudence. Friends of the Earth, Inc., 528 U.S. at 180, 120 S.Ct. 693. The standing doctrine determines “whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). “[C]oncern[s] about the proper — and properly limited — role of the courts in a democratic society” underlie the standing doctrine. Id. The ripeness doctrine prevents courts from deciding-cases prematurely. Nat’l Park Hospitality Ass’n v. Dep’t of the Interior, 538 U.S. 803, 807, 123 S.Ct. 2026, 155 L.Ed.2d 1017 (2003). Both standing and ripeness jurisprudence include a constitutional component, rooted in the Constitution’s ease-or-eontro-versy requirement, and a prudential component, which embraces judicially self-imposed restraints on federal jurisdiction. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004); Nat’l Park Hospitality Ass’n, 538 U.S. at 808, 123 S.Ct. 2026. A litigant must satisfy both to seek redress in federal court. Nuclear Info. & Res. Serv. v. Nuclear Regulatory Comm’n, 457 F.3d 941, 949-50 (9th Cir.2006). Persons seeking appellate review, like those who appear in courts of first instance, must satisfy Article III standing. Arizonans for Official English v. Arizona, 520 U.S. 43, 64, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). To establish Article III standing, a litigant must show that the allegedly unlawful conduct caused him to suffer an actual or imminent injury' — not a hypothetical, conjectural, or abstract injury — that a favorable decision would likely redress. Elk Grove Unified Sch. Dist., 542 U.S. at 12, 124 S.Ct. 2301; Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). Courts often treat the constitutional component of ripeness under the" }, { "docid": "5980249", "title": "", "text": "475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986). To this end, “[e]very federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it.” Id. (internal quotation marks omitted). And as the party invoking federal jurisdiction, Ruffin bears the burden of establishing his standing. DaimlerChrysler Corp. v. Cuno, — U.S. -, 126 S.Ct. 1854, 1861, 164 L.Ed.2d 589 (2006); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). As the Supreme Court has explained, “[n]o principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)(internal quotation marks omitted). “Article III standing ... enforces the Constitution’s case-or-controversy requirement.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). And even if a plaintiff possesses Article III standing, he may still be prevented from prosecuting his suit in federal court if he lacks statutory standing. Bennett v. Spear, 520 U.S. 154, 162-63, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). C. We begin with the question of Ruf-fin’s standing under Article III. The requisite elements of Article III standing are familiar: “A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). 1. Injury in Fact. Although NEL suggests that the injury Ruffin relies on is too speculative, we conclude that he has sufficiently alleged an injury in fact. Under the terms of the Plan, Ruffin, as a Plan participant, is entitled to receive a lump-sum payment of benefits in lieu of other benefits payable to" }, { "docid": "23381620", "title": "", "text": "up by the judiciary.’” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (quoting 4 Papers of John Marshall 95 (C. Cullen ed.1984)) (emphasis removed). With the case-or-controversy requirement, on the other hand, courts stay confined to their “proper—and properly limited—role,” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), of “deciding] on the rights of individuals,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803). There is, therefore, “ ‘[n]o principle ... more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.’ ” Raines v. Byrd, 521 U.S. 811, 818, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)). Courts enforce the ease-or-controversy requirement through the several jus-ticiability doctrines that “ ‘cluster about Article III.’ ” Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (quoting Vander Jagt v. O’Neill, 699 F.2d 1166, 1178-79 (D.C.Cir.1982) (Bork, J., concurring)). They include standing, ripeness, mootness, the political-question doctrine, and the prohibition on advisory opinions. See DaimlerChrysler, 547 U.S. at 352, 126 S.Ct. 1854; Erwin Chemerinsky, Federal Jurisdiction § 2.1 (5th ed.2007). “[PJerhaps the most important of these doctrines” is standing. Allen, 468 U.S. at 750, 104 S.Ct. 3315. The “irreducible constitutional minimum” of Article III standing consists of three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). First, the plaintiff must have suffered a “concrete,” “particularized” injury-in-fact, which must be “actual or imminent, not conjectural or hypothetical.” Id. (quotation marks omitted). Second, that injury must be “fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court.” Id. (quotation marks and alterations omitted). Third, the plaintiff must establish that a favorable decision likely would redress the injury. Id.; see AT & T Commc’ns of N.J., Inc. v." }, { "docid": "20416848", "title": "", "text": "class representatives). A. Constitutional Considerations Under Article III of the United States Constitution, federal courts may only adjudicate actual cases and controversies. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). “Article III standing ... enforces the Constitution’s case-or-controversy requirement.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). The constitutional requirements of standing and mootness are interrelated requirements of Article III. “The core component of the requirement that a litigant have standing to invoke the authority of a federal court is an essential and unchanging part of the case-or-controversy requirement of Article III.” DaimlerChrysler Corp., 547 U.S. at 342, 126 S.Ct. 1854 (quotations omitted). “To show Article III standing, a plaintiff has the burden of proving: (1) that he or she suffered an ‘injury-in-fact,’ (2) a causal relationship between the injury and the challenged conduct, and (3) that the injury likely will be redressed by a favorable decision.” Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir.2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130,119 L.Ed.2d 351 (1992)). 1. Mootness To demonstrate entitlement to declaratory and injunctive relief and to establish entitlement to such relief is not moot, the plaintiff must also demonstrate that “the injury likely will be redressed by a favorable decision.” In general, when the prohibited behavior ends, a plaintiff no longer has a claim for declaratory or injunctive relief, and a plaintiffs case is moot. See Keup v. Hopkins, 596 F.3d 899, 904 (8th Cir.2010). Instead, the plaintiff may only seek an award of monetary damages. See id. (holding that a change in policy “mooted any need for prospective injunctive or declaratory relief’ but the change “did not deprive Keup [plaintiff] the opportunity to seek monetary damages for prior violations of his constitutional rights”). See also Watts v. Brewer, 588 F.2d 646, 648 (8th Cir.1978). There is, however, an exception to the mootness doctrine which applies when the defendant voluntarily stops the allegedly illegal activity. See Lowry ex. rel. Crow v. Watson Chapel" }, { "docid": "7557789", "title": "", "text": "and May 16, 2003, was based on the South Dakota Constitution provisions; and that the School District’s policy did not violate the First and Fourteenth Amendments. The Puckets also urge us to find that the South Dakota Constitution provisions violate the United States Constitution. We conclude that the Puckets did not have standing either before or after March 3, 2003. II. DISCUSSION The district court granted summary judgment, which we review de novo “and may affirm on any basis supported by the record.” Wilson v. Spain, 209 F.3d 713, 716 (8th Cir.2000). Standing, however, is a jurisdictional requirement, and thus “can be raised by the court sua sponte at any time during the litigation.” Delorme v. United States, 354 F.3d 810, 815 (8th Cir.2004). Under Article III of the United States Constitution, federal courts may only adjudicate actual cases and controversies. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). “Article III standing ... enforces the Constitution’s case-or-controversy requirement.” Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). “The core component of the requirement that a litigant have standing to invoke the authority of a federal court is an essential and unchanging part of the case-or-controversy requirement of Article III.” Daimler-Chrysler, 547 U.S. at 342, 126 S.Ct. 1854 (internal quotations omitted). “To show Article III standing, a plaintiff has the burden of proving: (1) that he or she suffered an ‘injury-in-fact,’ (2) a causal relationship between the injury and the challenged conduct, and (3) that the injury likely will be redressed by a favorable decision.” Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir.2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). To have standing a plaintiff must demonstrate more than simply a “generalized grievance.” United States v. Hays, 515 U.S. 737, 743, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995). The injury must be “concrete,” not “conjectural” or “hypothetical.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103, 118 S.Ct. 1003, 140" }, { "docid": "23506031", "title": "", "text": "the allegations on the face of the complaint, taken as true, allege facts sufficient to invoke the jurisdiction of the district court. Challenges to subject matter jurisdiction under Rule 12(b)(1) may be facial or factual. Facial attacks, like this one, contest the sufficiency of the pleadings, and the trial court must accept the complaint’s allegations as true. Taliaferro, 458 F.3d at 188 (citations, quotations omitted). Further, “[a]t the pleading stage, general factual allegations of injury resulting from the defendants’] conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quotation, alterations omitted); see also Pa. Prison Soc’y v. Cortes, 508 F.3d 156, 161 (3d Cir.2007). Plaintiffs, as the parties invoking the federal courts’ jurisdiction, bear the burden of establishing their standing. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). III. STANDING A. General standing principles Standing implicates both constitutional requirements and prudential concerns. See Kowalski v. Tesmer, 543 U.S. 125, 128, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004). In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues. The standing requirement is born partly of an idea, which is more than an intuition but less than a rigorous and explicit theory, about the constitutional and prudential limits to the powers of an unelected, unrepresentative judiciary in our kind of government. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) (quotations, citations omitted). A federal court “[a]lways ... must balance the heavy obligation to exercise jurisdiction against the deeply rooted commitment not to pass on questions of constitutionality unless adjudication of the constitutional issue is necessary.” Id. (quotations, citations omitted). Thus, Article Ill’s standing requirement “is every bit as important in its circumscription of the judicial power of the United States as in its granting of that" }, { "docid": "22483042", "title": "", "text": "Deloitte & Touche LLP, 549 F.3d 100, 106-07 (2d Cir. 2008) ); accord Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130. The \"first and foremost\" of these three requirements, \"injury-in-fact\" requires a plaintiff to \"show that he or she suffered an invasion of a legally protected interest that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.' \" Spokeo, Inc. v. Robins, --- U.S. ----, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (internal quotation marks and citation omitted) (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130 ). To be \"imminent,\" the injury must be \"certainly impending\"; \"allegations of possible future injury are not sufficient.\" Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (internal quotation marks, alteration, and citation omitted). The second and third requirements, \"causation\" and \"redressability,\" require a plaintiff to demonstrate that the \"injury-in-fact\" he or she suffers is \"fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable decision.\" Lexmark Int'l, Inc. v. Static Control Components, Inc., --- U.S. ----, 134 S.Ct. 1377, 1386, 188 L.Ed.2d 392 (2014) (citing Lujan, 504 U.S. at 560, 112 S.Ct. 2130 ). A plaintiff need not, however, demonstrate that the defendant was the proximate or \"but-for\" cause of the injury-in-fact. Id. at 1391 n.6 ; Rothstein v. UBS AG, 708 F.3d 82, 91-92 (2d Cir. 2013). The court considers standing separately with respect to each claim raised in each case. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). \"[T]he presence of one party with standing is sufficient to satisfy Article III's case-or-controversy requirement\" with respect to each claim and form of relief sought. Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47, 53 n.3, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (\" FAIR\"). The court therefore considers whether, for each claim raised in each of these two actions, at least one plaintiff has standing to sue. 1. Batalla Vidal Plaintiffs a. DACA Rescission Claims Defendants unsurprisingly do not contest that the Batalla" } ]

[ { "docid": "22362906", "title": "", "text": "coercive appointments of counsel.” Id. at 310, 109 S.Ct. 1814. As members of a profession and officers of the court, however, lawyers “have obligations to their calling which exceed their obligations to the State,” id. at 310, 109 S.Ct. 1814 (Kennedy, J., concurring), and the Supreme Court has said that § 1915(e)(1) “may meaningfully be read to legitimize a court’s request to represent a poor litigant and therefore to confront a lawyer with an important ethical decision.” Id. at 308, 109 S.Ct. 1814. Accordingly, we have previously noted that because “judges are usually able to find lawyers willing to accede to such ‘requests,’ ” they are “as a practical matter ... appointments.” Hughes v. Joliet Corr. Ctr., 931 F.2d 425, 429 (7th Cir.1991). In forma pauperis plaintiffs typically ask judges to “appoint” counsel, and judges regularly construe motions seeking “appointment” of counsel — which Pruitt’s four motions did— as motions seeking the court’s assistance under § 1915(e)(1) in recruiting a volunteer. When reviewing denials of § 1915(e)(1) motions on appeal, we have usually engaged in three inquiries: (1) has the indigent plaintiff “made reasonable efforts to retain counsel” or “been effectively precluded from making such efforts” before requesting appointment, see Jackson v. County of McLean, 953 F.2d 1070, 1073 (7th Cir.1992); (2) “given the difficulty of the case, did the plaintiff appear to be competent to try it himself,” Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993); and (3) “if not, would the presence of counsel have made a difference in the outcome,” id. These three questions encompass elements of both the legal standard that guides the district court’s exercise of discretion and the appellate standard of review; our cases have not always clearly marked the distinction between the two. Nor have we always been consistent in articulating and applying the inquiries each question represents. We granted rehearing en banc to clarify the district court’s obligations, and our own. We also take this opportunity to resolve conflicting statements in our case law regarding the interests that are' — or more precisely, are not — at stake in this context." } ]

[ { "docid": "13514910", "title": "", "text": "the law is by definition an abuse of discretion.” Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 589 (7th Cir.2012) (internal quotations marks omitted). The district court, therefore, abused its discretion in denying Mr. Childress’s Rule 59 motion, which included his request to file an amended complaint. C. Lastly, we turn to Mr. Childress’s claim that the district court should have recruited counsel to act on his behalf. On two occasions prior to the district court’s dismissal of his complaint, Mr. Childress asked the court to appoint counsel. The district court did not act on those requests, but, instead, denied all of Mr. Childress’s remaining motions as moot following its dismissal of the complaint. Section 1915(e)(1) of Title 28 provides that “[t]he court may request an attorney to represent any person unable to afford counsel.” We recently reiterated the standards to be applied by the district court in determining whether it should act under § 1915(e)(1): In Pruitt [v. Mote, 503 F.3d 647 (7th Cir.2007) (en banc),] we refined the standards for evaluating whether to recruit counsel. If a plaintiff makes a reasonable attempt to secure counsel, the court must examine “whether the difficulty of the case — factually and legally — exceeds the particular plaintiffs capacity as a layperson to coherently present it.” Pruitt, 503 F.3d at 655. This inquiry does not focus solely on the plaintiffs ability to try his case — it also includes other “tasks that normally attend litigation” such as “evidence gathering” and “preparing and responding to motions.” Id. When ruling on a motion to recruit counsel, the court should take account of all evidence in the record relevant to the plaintiffs capacity to litigate. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir.2013) (per curiam). There is no question that the court abused its discretion in failing to address Mr. Childress’s motion for appointment of counsel. We previously have recognized that “[t]he failure of the trial court to exercise its discretion at all— in this case, in failing to rule on appellant’s request for appointment of counsel — constitutes an abuse" }, { "docid": "20406225", "title": "", "text": "In light of the complexity of Jaros’s claims, we note that he and the district court both would benefit from having counsel enlisted to represent Jaros on remand. . The district court cited 28 U.S.C. § 1915A, a part of the Prison Litigation Reform Act, as authority for screening Jaros’s complaint. By the time that review occurred, Jaros had finished serving his sentence and been released. On appeal he argues that it was error to screen his complaint under § 1915A because he no longer was a \"prisoner” as defined by 28 U.S.C. § 1915(h). This argument fails because \"prisoner” status under the PLRA turns on whether the plaintiff was confined when the suit was filed. Witzke v. Femdl, 376 F.3d 744, 750 (7th Cir.2004). And in any event, when a district court has authorized a plain tiff to proceed in forma pauperis — as happened in this litigation — the court may screen the complaint on the authority of 28 U.S.C. § 1915(e)(2). DeWalt v. Carter, 224 F.3d 607, 611 (7th Cir.2000); Rowe v. Shake 196 F.3d 778, 783 (7th Cir.1999). . Jaros has named the Illinois Department of Corrections as a defendant in the caption— but not the body — of his complaint. The district court reasoned that the omission from the body means that the agency is not a defendant. Yet this is the sort of pleading gaffe that, ordinarily, district courts should give pro se plaintiffs a chance to correct by amendment. See Smith v. Knox Cnty. Jail, 666 F.3d 1037, 1040 (7th Cir.2012); Jackson v. Kotter, 541 F.3d 688, 696-97 (7th Cir.2008). And more importantly here, the court's conclusion is incorrect, since Jaros also named the Director of the Department of Corrections as a defendant in both the title and body of the complaint. The Director (she has since been replaced) is named in her official capacity, and thus the suit is against the agency. See Zambrano v. Reinert, 291 F.3d 964, 975-76 (7th Cir.2002) (Easterbrook, J., concurring); Carver v. Sheriff of LaSalle Cnty., 243 F.3d 379 (7th Cir.2001). We have altered the caption accordingly." }, { "docid": "7841948", "title": "", "text": "42 U.S.C. § 1983. (He also brought a claim, no longer pursued, that the discipline violated his right to due process.) During discovery, the defendants produced a few documents “as a courtesy” to Navejar. But they refused Navejar’s other requests, including his request for more documents about or recordings of the altercation, citing security risks and burden. Navejar moved four times for the recruitment of pro bono counsel. He filed two of his motions at the start of the case, another after the guards moved to dismiss his due-process claim, and a fourth after they moved for summary judgment. His motions asserted why he believed he was incapable of representing himself: he did not finish high school, he suffered from (an unspecified) mental illness, he had difficulty with English, he had repeatedly been moved from prison to prison and thus had trouble securing help for his case, and he had been denied access to the law library during prison lockdowns. Navejar’s first two motions did not assert that he had sought counsel on his own; the district court never ruled on these motions. The third and fourth motions, though, explained that Navejar had contacted attorneys to represent him. The court denied these two motions. But the court denied the latter two motions without citing Pruitt v. Mote, 503 F.3d 647 (7th Cir.2007) (en banc), and instead relied on older cases in brief minute orders. It began by applying the legal standard in Gil v. Reed, 381 F.3d 649, 656 (7th Cir.2004), in evaluating (1) whether the plaintiff appears competent “to try” the case himself, and (2) whether recruiting counsel “would provide a substantial benefit to the court or the parties, potentially affecting the outcome.” The court concluded that counsel was unnecessary in Navejar’s case because he “alleged no physical or mental disability” precluding him from investigating the facts of his case and “[n]either the legal issues raised in the complaint nor the evidence that might support Plaintiffs claims are so complex or intricate that a trained attorney is necessary.” The district court granted summary judgment for the prison guards. The" }, { "docid": "23225002", "title": "", "text": "plaintiffs competence to litigate those claims himself.” Pruitt, 503 F.3d at 655. In determining whether the district court abused its discretion, we do not engage in an independent analysis of the plaintiffs claims and competency in order to decide for ourselves whether we think the plaintiff needed counsel. Id. at 658-59. Instead, we determine whether the district court applied the correct legal standard, and whether the court’s ultimate conclusion was reasonable given the information available to the court at the time the decision was made. Id. “ ‘We ask not whether [the judge] was right, but whether he was reasonable.’ ” Id. at 659 (quoting Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993)). The district court applied the proper legal standard when assessing Jackson’s requests. In response to Jackson’s first request, the court correctly explained that a request for appointment of counsel will be considered by the court only after the plaintiff has made reasonable efforts to obtain counsel from the private bar. See id. at 654; Gil v. Reed, 381 F.3d 649, 658 (7th Cir.2004) (“[T]he threshold consideration in determining whether to appoint counsel is whether the inmate has attempted and failed to procure counsel on his own.... ”). Jackson again requested the court’s assistance because, after reasonable efforts, he was unable to secure counsel himself. The court then addressed the substance of Jackson’s request by assessing the complexity of Jackson’s claims, and his ability to litigate his claims. See Pruitt, 503 F.3d at 655. The court denied Jackson’s request because his claims were not “of sufficient complexity or merit as [to] surpass the plaintiffs ability to properly develop and present them in this action.” It is evident that the district court undertook an inquiry into both the types of claims raised, and Jackson’s ability to litigate such claims. Because it applied the correct legal standard, our only task now is to decide whether the district court’s decision was reasonable. Id. at 658-59. Given the evidence before the district court at the time of Jackson’s requests, see id. at 659, the decision not to recruit counsel was reasonable" }, { "docid": "9948008", "title": "", "text": "be given an innocent construction. Tuite v. Corbitt, 224 Ill.2d 490, 502, 310 Ill.Dec. 303, 866 N.E.2d 114 (Ill.2006). Stating that Widmar “had made a change that screwed things up for the company” says nothing about his ability to perform in his position in general — only that he had made a particular error at Sun Chemical. This type of comment is not defamation per se. See Green, 334 Ill.Dec. 624, 917 N.E.2d at 465. For all of these reasons, the judgment of the district court granting summary judgment to Sun Chemical is AFFIRMED. . We remind district courts of our attempts to rid our circuit’s opinions of language critical of the \"self-serving affidavit:” We hope this discussion lays to rest the misconception that evidence presented in a \"self-serving” affidavit is never sufficient to thwart a summary judgment motion. Provided that the evidence meets the usual requirements for evidence presented on summary judgment — including the requirements that it be based on personal knowledge and that it set forth specific facts showing that there is a genuine issue for trial — a self-serving affidavit is an acceptable method for a non-moving party to present evidence of disputed material facts. Id. at 773. See also Hill v. Tangherlini, 724 F.3d 965, 967-68 & n. 1 (7th Cir.2013) (noting that the term \" 'self serving’ must not be used to denigrate perfectly admissible evidence through which a party tries to present its side of the story at summary judgment” and overruling all Seventh Circuit cases that suggest that a plaintiff may not rely on \"self-serving” evidence to defeat summary judgment); Rooni v. Biser, 742 F.3d 737, 740 (7th Cir.2014); Navejar v. Iyiola, 718 F.3d 692, 697 (7th Cir.2013); Beny v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir.2010); Darchak v. City of Chicago Bd. of Educ., 580 F.3d 622, 631 (7th Cir.2009); Paz v. Wauconda Healthcare & Rehab. Ctr., LLC, 464 F.3d 659, 664-65 (7th Cir.2006); Buie v. Quad/Graphics, Inc., 366 F.3d 496, 506 (7th Cir.2004)." }, { "docid": "12915824", "title": "", "text": "799 F.3d 845, 851 (7th Cir. 2015); Donald v. Cook County Sheriff’s Dept., supra, 95 F.3d at 554. The denial of Davis’s motion for relief from final judgment is therefore reversed and the case remanded for further proceedings consistent with this opinion. Reversed and Remanded. KANNE, Circuit Judge, concurring. I join in the majority’s reversal of the district court’s decision denying Davis’s motion for relief from final judgment and the majority’s remand for further proceedings. I write separately to briefly discuss certain factors. When reviewing a district court’s denial of an indigent prisoner plaintiffs motion to recruit counsel for him, we make three inquiries: “(1) has the indigent plaintiff made reasonable efforts to retain counsel or been effectively precluded from making such efforts before requesting appointment; (2) given the difficulty of the case, did the plaintiff appear to be competent to try it himself; and (3) if not, would the presence of counsel have made a difference in the outcome.” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc) (internal citations and quotations marks omitted). Here, the district court erred at the mandatory first step by not crediting Davis for following existing precedent in attempting to obtain a lawyer to represent him. See Jackson v. Cty. of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992). In fact, the defendant does not contest that Davis had contacted several lawyers seeking representation in this litigation. Moreover, the long extended give-and-take between the district judge and the parties failed to get to the heart of the matter: whether the district court should have tried to appoint counsel for Davis. The court could have addressed this issue by appointing a magistrate judge to conduct a hearing at the prison. The magistrate judge could have considered both Davis’s efforts to obtain counsel and the difficulty Davis experienced in dealing with the case. In addition, but less satisfactorily, the district judge could have held a hearing by telephone to achieve the same end. With counsel, Davis likely would not have missed the deadlines for written discovery. Thus, the outcome of the case in" }, { "docid": "23225001", "title": "", "text": "and the district court repeatedly denied his requests because, in the court’s view, Jackson’s legal claims against the defendants were not sufficiently complex and Jackson was capable of developing and litigating the claims himself. The court explained that “the presence of counsel would not make a difference in the outcome.” We review a district court’s decision not to assist a litigant in obtaining counsel for an abuse of discretion. See Pruitt v. Mote, 503 F.3d 647, 658 (7th Cir.2007) (en banc). Jackson had no constitutional or statutory right to counsel in his civil case against the government and its employees. See Johnson v. Doughty, 433 F.3d 1001, 1019 (7th Cir.2006). The decision of whether to recruit pro bono counsel for Jackson — or, as it is often called, to “appoint counsel”- — -rested within the sound discretion of the district court. See Pruitt, 503 F.3d at 653-54; Johnson, 433 F.3d at 1019. As part of its exercise in discretion, the district court was required to consider both “the difficulty of the plaintiffs claims and the plaintiffs competence to litigate those claims himself.” Pruitt, 503 F.3d at 655. In determining whether the district court abused its discretion, we do not engage in an independent analysis of the plaintiffs claims and competency in order to decide for ourselves whether we think the plaintiff needed counsel. Id. at 658-59. Instead, we determine whether the district court applied the correct legal standard, and whether the court’s ultimate conclusion was reasonable given the information available to the court at the time the decision was made. Id. “ ‘We ask not whether [the judge] was right, but whether he was reasonable.’ ” Id. at 659 (quoting Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993)). The district court applied the proper legal standard when assessing Jackson’s requests. In response to Jackson’s first request, the court correctly explained that a request for appointment of counsel will be considered by the court only after the plaintiff has made reasonable efforts to obtain counsel from the private bar. See id. at 654; Gil v. Reed, 381 F.3d 649, 658" }, { "docid": "22979520", "title": "", "text": "for an indigent plaintiff like Gil, a court must “first determine if the indigent has made reasonable efforts to retain counsel and was unsuccessful or that the indigent was effectively precluded from making such efforts.” Jackson v. County of McLean, 953 F.2d 1070, 1072 (7th Cir.1992). In its first order, the court noted that Gil’s request failed on this initial inquiry because he did not demonstrate that he made any effort to obtain counsel on his own. That finding alone was enough to support the court’s first order. The court nonetheless proceeded to analyze Gil’s request as if he had made the threshold showing of an attempt and failure to obtain counsel, turning to the standard we announced in Farmer v. Haas, 990 F.2d 319 (7th Cir.), cert. denied, 510 U.S. 963, 114 S.Ct. 438, 126 L.Ed.2d 372 (1993). Gil is therefore correct that the remainder of the first order, at the time it was issued, is properly considered dicta. But when Gil filed his second motion, and demonstrated that he had now attempted and failed to obtain counsel, the court adopted the reasoning of the first order, rendering it the controlling ruling on the issue. At this point, it was no longer dicta; it was the court’s ruling. After adopting the reasoning of the first order, the court offered “additional comments.” Because the second ruling did not rest on the additional comments, they are best characterized as dicta. The basis of the final ruling on the issue was the court’s application of Farmer to Gil’s circumstances. We therefore review that analysis. In Farmer, we simplified the inquiry for determining whether to appoint counsel for indigent plaintiffs: [G]iven the difficulty of the case, did the plaintiff appear to be competent to try it himself and, if not, would the presence of counsel have made a difference in the outcome? Farmer, 990 F.2d at 322. In answering this question, the court below considered Gil’s language skills as demonstrated in his pleadings, the latitude afforded pro se plaintiffs on procedural matters, and the complexity of the case. In each instance, the court" }, { "docid": "7841951", "title": "", "text": "court’s treatment of deliberate indifference was clearly correct, so we say nothing further about it.) Navejar makes only one argument on appeal: that the district court abused its discretion by failing to recruit him a lawyer. In a civil case, the court has discretion to recruit counsel to represent a litigant who is unable to afford one. 28 U.S.C. § 1915(e)(1); Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir.2013). In Pruitt we refined the standards for evaluating whether to recruit counsel. If a plaintiff makes a reasonable attempt to secure counsel, the court must examine “whether the difficulty of the case — factually and legally — exceeds the particular plaintiffs capacity as a layperson to coherently present it.” Pruitt, 503 F.3d at 655. This inquiry does not focus solely on the plaintiffs ability to try his case — it also includes other “tasks that normally attend litigation” such as “evidence gathering” and “preparing and responding to motions.” Id. When ruling on a motion to recruit counsel, the court should take account of all evidence in the record relevant to the plaintiffs capacity to litigate. Id. We will overturn the district court’s decision only when the court has abused its discretion based on the evidence in the record when it ruled on the motion. Id. at 658-59. And even if the district court abuses its discretion, we will reverse only if the plaintiff shows prejudice — “a reasonable likelihood that the presence of counsel would have made a difference in the outcome of the litigation.” Id. at 659 (emphasis removed). In its orders denying Navejar’s § 1915(e)(1) motions, the court erred in three ways. First, by relying on Gil instead of Pruitt, the court believed that it should decide whether Navejar was competent to try his case. See Gil, 381 F.3d at 656. But Pruitt clarified that the proper inquiry focuses on “whether the plaintiff appears competent to litigate his own claims,” 503 F.3d at 655 (emphasis in original), with tactics like discovery and motion practice “that normally attend litigation.” Id. Second, by stating without elaboration that" }, { "docid": "12220524", "title": "", "text": "of the case — before denying the motion. The court abused its discretion by failing to explain its reasoning and failing to address all the relevant arguments Dewitt raised. For example, the court characterized Dewitt as fitting within the spectrum of most pro se litigants and said it had considered his personal characteristics, but it did not identify those characteristics. However, the court did not address the challenges that Dewitt, as a blind and indigent prisoner with a tenth-grade education and no legal experience, faced in being able to investigate crucial facts and depose witnesses, doctors, and other allegedly resistant prison personnel. See Pruitt, 503 F.3d at 655 (noting the court “should review any information submitted in support of the request for counsel, as well as the pleadings, communications from, and any contact with the plaintiff’); see also Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir.2013) (noting judge should have considered plaintiffs “limited education, mental illness, language difficulties, and lack of access to fellow prisoners or other resources for assistance after his transfer from Stateville”). Moreover, the court’s statement that Dewitt “has demonstrated familiarity with his claims and the ability to present them” does not demonstrate that the district court specifically examined Dewitt’s personal ability to litigate the case, versus the ability of the “jailhouse lawyer” who Dewitt said in his motion was helping him. The analysis should be of the plaintiff’s ability to litigate his own claims, and the “fact that an inmate receives assistance from a fellow prisoner should not factor into the decision whether to recruit counsel.” Henderson, 755 F.3d at 565, 2014 WL 2757473 at *5. Nor did the court explain why the claims were not of “sufficient complexity” to merit recruitment of counsel. In fact, the case presents complicated medical matters, involves varying recommended courses of treatment by numerous physicians, and required discovery into what constitutes reasonable care for medical professionals. Though not every deliberate indifference case is so complex and beyond the individual plaintiffs capacity as to warrant the recruitment of counsel, this one was. See Henderson, 755 F.3d at 566-67, 2014 WL" }, { "docid": "22362913", "title": "", "text": "counsel, whether based on the nature of the case or the degree of plaintiff competence. The inquiry into plaintiff competence and case difficulty is particularized to the person and case before the court. It is undertaken with due regard for the nature of the request at hand; before a judge will invoke his discretionary authority to press a lawyer into service on an indigent plaintiffs case pro bono, he first rules out the possibility that the plaintiff is competent to litigate it himself. Of course when faced with a § 1915(e)(1) motion, the judge cannot know with certainty whether the plaintiff will actually prove to be competent to litigate his own case. He can only make a determination based on the record as it exists when the motion is brought, and our review is limited to the record at the time the decision was made (we will have more to say on this later). Accordingly, although the judge certainly has the discretion to do so, he has no obligation to reconsider a § 1915(e)(1) denial should future events prove the plaintiff less capable than the record indicated when the motion was denied. Such an obligation might be inferred from our case law, which has routinely suggested that pro bono counsel may not be denied “if it would result in fundamental unfairness infringing on due process rights.” Gil v. Reed, 381 F.3d 649, 657 (7th Cir.2004); see also Zarnes, 64 F.3d at 288; Jackson, 953 F.2d at 1071-72; McNeil, 831 F.2d at 1371. This implies that at a certain point on the case-difficulty/plaintiff-competence continuum, a due process entitlement to counsel kicks in. Not so. We have also said it is a “fundamental premise that indigent civil litigants have no constitutional or statutory right to be represented by counsel in federal court.” Jackson, 953 F.2d at 1071; see also Johnson, 433 F.3d at 1006; Zarnes, 64 F.3d at 288 (“Civil litigants do not have a right, either constitutional or statutory, to counsel.”). In this regard, cases like Jackson and Zames are on both sides of the proposition; this conflict contributed to our" }, { "docid": "4806193", "title": "", "text": "counsel on his own, or conversely, if he has been precluded from doing so. Id. Next, the district court must evaluate the complexity of the case and whether the plaintiff appears competent to litigate it on his own. Id. at 654-55. We review the district court’s denial of a litigant’s request for appointment of counsel for an abuse of discretion. Jackson v. Kotter, 541 F.3d 688, 699-700 (7th Cir.2008); Pruitt, 503 F.3d at 658. Our review of the district court’s decision is deferential. Pruitt, 503 F.3d at 658-59. “ ‘A court does not abuse its discretion unless ... (1) the record contains no evidence upon which the court could have rationally based its decision; (2) the decision is based on an erroneous conclusion of law; (3) the decision is based on clearly erroneous factual findings; or (4) the decision clearly appears arbitrary.’” Id. at 658 (quoting Musser v. Gentiva Health Servs., 356 F.3d 751, 755 (7th Cir.2004) (alteration in original)). We do not engage in an independent analysis of the plaintiffs claims and competency; instead our task is to determine “whether the district court applied the correct legal standard and reached a reasonable decision based on facts supported by the record.” Id. “We ask not whether the [the judge] was right, but whether he was reasonable.\" Id. (alteration in original) (quoting Farmer, 990 F.2d at 322) (quotations omitted). Although we may determine that the district court abused its discretion, reversal of a district court’s denial of counsel is reserved for when the litigant can establish actual prejudice. Id. at 659. We find that the district court did not abuse its discretion in denying Romanelli’s motions for court-appointed counsel. In response to each motion, the district court applied the correct legal standard and carefully analyzed the facts as they existed at the time of the particular motion. With respect to Romanelli’s first motion, the district court determined that Romanelli had not demonstrated that he made reasonable efforts to secure his own lawyer or that he had been prevented from doing so. Regardless, the court noted the correct legal standard in the" }, { "docid": "7841949", "title": "", "text": "the district court never ruled on these motions. The third and fourth motions, though, explained that Navejar had contacted attorneys to represent him. The court denied these two motions. But the court denied the latter two motions without citing Pruitt v. Mote, 503 F.3d 647 (7th Cir.2007) (en banc), and instead relied on older cases in brief minute orders. It began by applying the legal standard in Gil v. Reed, 381 F.3d 649, 656 (7th Cir.2004), in evaluating (1) whether the plaintiff appears competent “to try” the case himself, and (2) whether recruiting counsel “would provide a substantial benefit to the court or the parties, potentially affecting the outcome.” The court concluded that counsel was unnecessary in Navejar’s case because he “alleged no physical or mental disability” precluding him from investigating the facts of his case and “[n]either the legal issues raised in the complaint nor the evidence that might support Plaintiffs claims are so complex or intricate that a trained attorney is necessary.” The district court granted summary judgment for the prison guards. The court struck Navejar’s statement of material facts and deemed admitted the defendants’ statement, reasoning that Navejar had committed two critical errors: (1) im-permissibly attempting to create a fact dispute by citing “self-serving evidence”— his affidavit where he asserted that guards beat and pepper-sprayed him after he was cuffed and subdued; and (2) adding his own factual assertions in response to the defendants’ statement of facts, rather than presenting them in a separate statement, as required by N.D. Ill. L.R. 56.1(b)(3)(C). With the defendant’s version of events un-contradicted, the court concluded that no reasonable jury could determine that the guards used excessive force against Nave-jar. Alternatively, the court reasoned, Navejar’s excessive-force claim was barred by Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because the prison disciplinary board found Navejar guilty of assaulting Iyiola. Finally, the court concluded that Navejar could not recover for deliberate indifference against Elberson because no evidence suggested that Navejar suffered from a serious medical condition or that Elberson had a culpable mental state. (The district" }, { "docid": "4806192", "title": "", "text": "as those that are now before us. The district court denied Romanelli’s Rule 59 motion in all respects on June 17, 2008. II. Analysis Romanelli argues on appeal that the district court erred in its denial of his motions for court-appointed counsel, claiming that the outcome would have been different had the district court granted his motions. Romanelli also argues that Judge Crock-er’s decision to allow evidence of two felony convictions for impeachment purposes was unfairly prejudicial. We take each argument in turn. A Court-Appointed Counsel There is no constitutional or statutory right to counsel in federal civil cases. Pruitt, 503 F.3d at 656; see Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir.2006). Nevertheless, the district court has discretion under 28 U.S.C. § 1915(e)(1) to request counsel for an indigent litigant. Pruitt, 503 F.3d at 654 (citing Johnson, 433 F.3d at 1006; Farmer, 990 F.2d at 323). When a pro se litigant submits a request for court-appointed counsel, the district court must first consider whether the indigent plaintiff has made reasonable attempts to secure counsel on his own, or conversely, if he has been precluded from doing so. Id. Next, the district court must evaluate the complexity of the case and whether the plaintiff appears competent to litigate it on his own. Id. at 654-55. We review the district court’s denial of a litigant’s request for appointment of counsel for an abuse of discretion. Jackson v. Kotter, 541 F.3d 688, 699-700 (7th Cir.2008); Pruitt, 503 F.3d at 658. Our review of the district court’s decision is deferential. Pruitt, 503 F.3d at 658-59. “ ‘A court does not abuse its discretion unless ... (1) the record contains no evidence upon which the court could have rationally based its decision; (2) the decision is based on an erroneous conclusion of law; (3) the decision is based on clearly erroneous factual findings; or (4) the decision clearly appears arbitrary.’” Id. at 658 (quoting Musser v. Gentiva Health Servs., 356 F.3d 751, 755 (7th Cir.2004) (alteration in original)). We do not engage in an independent analysis of the plaintiffs claims and competency; instead" }, { "docid": "22157797", "title": "", "text": "whether this court would have appointed counsel if it were in the district court’s position. See Zarnes v. Rhodes, 64 F.3d 285, 289 (7th Cir.1995). Even if the reviewing court may have preferred to appoint counsel, that is not its role. Otherwise, such disagreement would always compel appointment. Rather, “overriding]” a district court’s denial of counsel is reserved for only “that extreme case in which it should have been plain beyond doubt” that counsel was necessary. Farmer v. Haas, 990 F.2d 319, 323 (7th Cir.1993). Also, the test is not whether “a good lawyer may have done better than [the plaintiff].” Luttrell, 129 F.3d at 936. Because if that were the test, “district judges would be required to request counsel for every indigent litigant.” Id. (quoting Farmer, 990 F.2d at 323). Section 1915(e)(1) leaves significant discretion with the district court. To determine if a district court abused its discretion in denying counsel, we have formulated a two-step inquiry. We first ask: “[GJiven the difficulty of the case, did the plaintiff appear to be competent to try it himself[?]” Greeno, 414 F.3d at 658 (quoting Farmer, 990 F.2d at 322). If so, our inquiry ends right there. If not, we further ask: “[W]ould the presence of counsel have made a difference in the outcome?” Greeno, 414 F.3d at 658 (quoting Farmer, 990 F.2d at 322). Reversal is therefore warranted only when the district court’s “denial amounts to a violation of due process.” Zarnes, 64 F.3d at 288; see also Gil v. Reed, 381 F.3d 649, 657 (7th Cir.2004). In other words, a district court will be held to have abused its discretion under § 1915(e)(1) only if the denial of counsel made “it impossible for [the plaintiff] to obtain any sort of justice.” Farmer, 990 F.2d at 323 (emphasis added). Johnson has not met this “exacting standard.” Id. This case was not overly difficult. Johnson had to show that he had a serious medical need and that the defendants consciously disregarded that need so as to impose cruel and unusual punishment. See Farmer v. Brennan, 511 U.S. 825, 837-38, 114 S.Ct." }, { "docid": "7841955", "title": "", "text": "law. See, e.g., Hutcherson v. Cook Cnty., No. 10C6215, 2010 WL 3951897, at *2 (N.D.Ill. Oct. 6, 2010); Banks v. Mills, No. 10C1486, 2010 WL 3307356, at *1 (N.D.Ill. Aug. 19, 2010); Logan v. Godinez, No. 10C4418, 2010 WL 2836957, at *3 (N.D.Ill. July 19, 2010). And these are only the rulings searchable through public databases; doubtless district judges have also used this obsolete language in orders not captured in these databases. We therefore take this opportunity to remind district courts about the individualized analysis that Pruitt requires, see 503 F.3d at 655-56, and caution against using boilerplate language that we criticized en banc. Even though the district court applied the wrong standard, we will not reverse without a showing of prejudice — a “reasonable likelihood that the presence of counsel would have made a difference in the outcome of the litigation.” Id. at 659 (emphasis removed). Prejudice (unlike abuse of discretion) may be established by an after-the-fact review “of a litigant’s poor performance before or during trial.” Id. at 659-60. In this case, the absence of counsel likely prejudiced Navejar because the district court’s ruling on summary judgment reveals two substantive errors. First, the court adopted the erroneous legal argument raised by the defendants in moving for summary judgment that Navejar could not rely on “self-serving evidence” to create a material factual dispute. This is wrong. “[W]e long ago buried — or at least tried to bury — the misconception that uncorroborated testimony from the non-movant cannot prevent summary judgment because it is ‘self-serving.’ ” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir.2010); see also Darchak v. City of Chicago Bd. of Educ., 580 F.3d 622, 631 (7th Cir.2009); Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504-06 (7th Cir.2004); Payne v. Pauley, 337 F.3d 767, 770-73 (7th Cir.2003). Here, Navejar attempted to present his side of the story at summary judgment through his affidavits and specific references to his deposition testimony. He contended that after he was subdued and handcuffed, Iyiola kicked him in the face, a prison guard stomped his head, guards dragged him across" }, { "docid": "13514911", "title": "", "text": "evaluating whether to recruit counsel. If a plaintiff makes a reasonable attempt to secure counsel, the court must examine “whether the difficulty of the case — factually and legally — exceeds the particular plaintiffs capacity as a layperson to coherently present it.” Pruitt, 503 F.3d at 655. This inquiry does not focus solely on the plaintiffs ability to try his case — it also includes other “tasks that normally attend litigation” such as “evidence gathering” and “preparing and responding to motions.” Id. When ruling on a motion to recruit counsel, the court should take account of all evidence in the record relevant to the plaintiffs capacity to litigate. Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir.2013) (per curiam). There is no question that the court abused its discretion in failing to address Mr. Childress’s motion for appointment of counsel. We previously have recognized that “[t]he failure of the trial court to exercise its discretion at all— in this case, in failing to rule on appellant’s request for appointment of counsel — constitutes an abuse of discretion.” Brown-Bey v. United States, 720 F.2d 467, 471 (7th Cir.1983). Moreover, we believe that Mr. Childress was prejudiced by the district court’s failure to recruit counsel. “The ordinary remedy in this situation is [to] remand” and allow the plaintiff to proceed “with the assistance of recruited pro bono counsel.” Pruitt, 503 F.3d at 650. Here, however, the district court never acted on Mr. Childress’s motion for the appointment of counsel. Given that the statute authorizing the recruitment of counsel requires the exercise of discretion, see id. at 658, we believe the district court should consider this issue in the first instance. Moreover, it should act on this motion before giving Mr. Childress an opportunity to file an amended complaint. In considering whether to recruit counsel on behalf of Mr. Childress, the district court must undertake, of course, “the individualized analysis that Pruitt requires.” Navejar, 718 F.3d at 697. Specifically, the court must consider “whether the difficulty of the case — factually and legally — exceeds [Mr. Childress’s] capacity as a layperson to coherently" }, { "docid": "7841950", "title": "", "text": "court struck Navejar’s statement of material facts and deemed admitted the defendants’ statement, reasoning that Navejar had committed two critical errors: (1) im-permissibly attempting to create a fact dispute by citing “self-serving evidence”— his affidavit where he asserted that guards beat and pepper-sprayed him after he was cuffed and subdued; and (2) adding his own factual assertions in response to the defendants’ statement of facts, rather than presenting them in a separate statement, as required by N.D. Ill. L.R. 56.1(b)(3)(C). With the defendant’s version of events un-contradicted, the court concluded that no reasonable jury could determine that the guards used excessive force against Nave-jar. Alternatively, the court reasoned, Navejar’s excessive-force claim was barred by Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because the prison disciplinary board found Navejar guilty of assaulting Iyiola. Finally, the court concluded that Navejar could not recover for deliberate indifference against Elberson because no evidence suggested that Navejar suffered from a serious medical condition or that Elberson had a culpable mental state. (The district court’s treatment of deliberate indifference was clearly correct, so we say nothing further about it.) Navejar makes only one argument on appeal: that the district court abused its discretion by failing to recruit him a lawyer. In a civil case, the court has discretion to recruit counsel to represent a litigant who is unable to afford one. 28 U.S.C. § 1915(e)(1); Ray v. Wexford Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir.2013). In Pruitt we refined the standards for evaluating whether to recruit counsel. If a plaintiff makes a reasonable attempt to secure counsel, the court must examine “whether the difficulty of the case — factually and legally — exceeds the particular plaintiffs capacity as a layperson to coherently present it.” Pruitt, 503 F.3d at 655. This inquiry does not focus solely on the plaintiffs ability to try his case — it also includes other “tasks that normally attend litigation” such as “evidence gathering” and “preparing and responding to motions.” Id. When ruling on a motion to recruit counsel, the court should take account" }, { "docid": "15198144", "title": "", "text": "request a lawyer to represent her at the trial. 28 U.S.C. § 1915(d). Had the motion been made after Jackson v. County of Maclean, 953 F.2d 1070, 1072-73 (7th Cir.1992), the judge would have been required to deny it out of hand unless Farmer had made some effort to secure a lawyer in the private market. Her suit sought damages, and if it had merit she might be able to retain a tort lawyer to handle it on a contingent basis. That would be a preferable course to a judge’s twisting some lawyer’s arm to induce him to take a case that he would rather not take. If the plaintiff were unable to secure a lawyer in the private market, this might mean the suit had no merit, although alternatively it might mean that the plaintiff lacked the necessary information to obtain a suitable lawyer. Jackson establishes a sensible threshold requirement, but one inapplicable here because Farmer could not know that it was a requirement, so no significance can be attached to her failure to seek (for all we know she did seek) private counsel. Id. at 1073. It is true that the statute itself confines the power of request to cases in which the litigant is “unable to employ counsel” and that the Second Circuit had, long before Jackson, interpreted this to mean that the litigant must show that he tried and failed to find a lawyer on his own. Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir.1986). See also In re Lane, 801 F.2d 1040, 1043 (8th Cir.1986). Until Jackson, however, our court had assumed that “unable to employ counsel” meant indigent, though an indigent might be able to obtain a lawyer on a contingent-fee basis if he had a substantial claim for money damages. So the parties, disregarding Jackson, have argued the pros and cons of Farmer’s request for counsel under the five-fold test that a panel of this court adopted in Maclin v. Freake, 650 F.2d 885 (7th Cir.1981) (per curiam). Since Maclin was decided, however, we have become more wary about multifactor tests," }, { "docid": "7841956", "title": "", "text": "absence of counsel likely prejudiced Navejar because the district court’s ruling on summary judgment reveals two substantive errors. First, the court adopted the erroneous legal argument raised by the defendants in moving for summary judgment that Navejar could not rely on “self-serving evidence” to create a material factual dispute. This is wrong. “[W]e long ago buried — or at least tried to bury — the misconception that uncorroborated testimony from the non-movant cannot prevent summary judgment because it is ‘self-serving.’ ” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir.2010); see also Darchak v. City of Chicago Bd. of Educ., 580 F.3d 622, 631 (7th Cir.2009); Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504-06 (7th Cir.2004); Payne v. Pauley, 337 F.3d 767, 770-73 (7th Cir.2003). Here, Navejar attempted to present his side of the story at summary judgment through his affidavits and specific references to his deposition testimony. He contended that after he was subdued and handcuffed, Iyiola kicked him in the face, a prison guard stomped his head, guards dragged him across the floor, Grant and Iyiola pepper-sprayed him, and then left him alone for 30 minutes screaming in pain. With Navejar lacking counsel to reply to the defendants’ erroneous contention that the district court may safely disregard his “self-serving” evidence, the district court accepted that contention and thereby prejudiced Navejar. Second, the defendants argued that Navejar’s excessive-force claim was Heck-barred because the prison board found Navejar guilty of disobeying orders and assaulting Iyiola. See Edwards v. Balisok, 520 U.S. 641, 648, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997); Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The district court again agreed with the guards, ruling that Heck bars the excessive-force claim. We disagree, observing as we have before that pro se prisoners are often tripped up by Heck’s complexities. See Evans v. Poskon, 603 F.3d 362, 364 (7th Cir.2010); Gilbert v. Cook, 512 F.3d 899, 901 (7th Cir. 2008). Navejar cannot deny that he disobeyed orders or assaulted Iyiola because those denials would “necessarily imply” the invalidity of his discipline." } ]

[ { "docid": "6142326", "title": "", "text": "trade or business”; that Treasury Regulations 118 (1939) Code, Sec. 39.23(1) — 3 and Treasury Regulations on Income Tax (1954 Code), Section 1.167(a)-3, provide that if an intangible asset is known from experience to be of use in the business or in the production of income for only a limited period, the length of which can be estimated with “reasonable” certainty, such intangible asset may be the subject of a depreciation allowance; that both the 1939 and 1954 Treasury Regulations impose upon the taxpayer the burden of establishing the reasonableness of the deduction for depreciation allowance; and finally, that the record discloses that taxpayer had failed to establish with “reasonable” certainty that the maximum period of renewal of the network affiliation contract was to January 1, 1958. The Tax Court held that “Insufficient evidence was introduced from which could be calculated either the average useful life of network affiliation contracts or their useful life span”, and further stated its conclusion “that petitioner [taxpayer] has not only failed to persuade us that the contract had a 55-month useful life but also that it has failed to persuade us respondent [Commissioner] erred in his determination that the contract had an indeterminable useful life”. On review of the record we agree with the Tax Court’s holding that taxpayer failed to prove that at the close of the taxable years 1953 and 1954 it was “reasonably certain” that the network affiliation contract had a maximum useful life of but 55 months from the date of its acquisition by taxpayer on June 1, 1953. The burden of proof to do so was on taxpayer not only under the applicable revenue statutes and the Treasury Regulations pertaining to them, earlier cited, but by reason of the well-settled principle that the Commissioner’s determination of a deficiency in tax bears a presumption of correctness. Hoffman v. Commissioner, 298 F.2d 784, 788 (3 Cir. 1962). Taxpayer did not adduce any testimony to the effect that based on “experience” in the television industry the number of renewals of the network affiliation contract could be “estimated” with “reasonable certainty” or “reasonable" } ]

[ { "docid": "23377626", "title": "", "text": "See also Richmond Television Corp. v. United States, 4 Cir. 1965, 354 F.2d 410; Commissioner v. Indiana Broadcasting Corp., 7 Cir. 1965, 350 F.2d 580, cert. denied, 382 U.S. 1027, 86 S.Ct. 645, 15 L.Ed.2d 539. Similarly, in Nachman v. Commissioner, 5 Cir. 1951, 191 F.2d 934, affirming 12 T.C. 1204, we refused to allow the costs of obtaining a retail liquor license valid for only five months to be depreciated. Permitting the taxpayer to deduct the “official fee” as an ordinary and necessary business expense, we denied a depreciation deduction for the “premium” paid for the license because the licenses involved “were assignable, and carried with them valuable renewal privileges, as it was the established practice in issuing renewal licenses from year to year to prefer the holders of existing licenses over other applicants.” 191 F.2d at 935. Again, even though the asset had a known “expiration date,” the government was able to prevail by satisfying the trier of fact that the useful life of the asset was likely to continue indefinitely. See also Curry v. United States, 4 Cir. 1962, 298 F.2d 273 (contract to furnish electricity “in perpetuity free of all cost” is facially of indefinite duration). None of these decisions control the instant case, however, for we have before us a jury’s determination that this asset has a limited Useful life of five years rather than a fact finding that the subscription lists will continue their usefulness indefinitely. The most frequently reported cases— those involving denials of § 167(a) amortization deductions for intangible capital assets where the’ taxpayer failed to carry his burden of convincing the trier of fact that the asset has a limited useful life of ascertainable duration — are similarly distinguishable. In denying a § 167(a) deduction in Griswold v. Commissioner, supra, for example, we emphasized that taxpayers had “offered no evidence to accurately establish the duration of the assets.” 400 F.2d at 434. Similarly, in a case involving “insurance renewals,” we denied amortization deductions where taxpayers had “adduced no controverting evidence of a limited useful life” of the asset. Salome v. United" }, { "docid": "6987416", "title": "", "text": "large number of these applications for renewal of television broadcasting licenses has been granted and none ever denied,” and the Tax Court concluded that: “While it is doubtless true that it will be within the power of the F. C.C. to refuse to grant a renewal of petitioner’s television license * * nevertheless we think * * * that it is altogether unlikely that the F. C.C. will deny petitioner’s application for a renewal of its license.” Courts have adopted similar reasoning where local broadcasting companies have attempted to amortize the cost of renewable network affiliation contracts. In Commissioner of Internal Revenue v. Indiana Broadcasting Corp., 350 F.2d 580 (7th Cir. 1965), cert. denied, 86 S.Ct. 645 (Feb. 1, 1966), the court reversed the Tax Court, 31 T.C. 793, and denied amortization of the cost of an affiliation contract renewable every two years, even though the taxpayer introduced evidence showing that similar contracts had in the past been terminated. In deciding that the asset was of indefinite duration, the court said that “the record as a whole persuasively indicates, that taxpayer’s contracts may be expected to remain in force for a wholly unpredictable period of time.” 350 F.2d at 586. See also Westinghouse Broadcasting Co. v. Commissioner, 36 T.C. 912, aff’d, 309 F.2d 279 (3d Cir. 1962), cert. denied, 372 U.S. 935, 83 S.Ct. 881, 9 L.Ed.2d 766 (1963) (cost of television network contract, renewable every two years, not amortizable since asset had an indeterminate useful life). To the same effect, see Gant v. Commissioner, 263 F.2d 558 (6th Cir. 1959) (guaranteed payments to distributor under distributorship contract not amortizable where contract to remain in effect for an unascertainable period of time); and Nachman v. Commissioner, 191 F.2d 934 (5th Cir. 1951) (cost of liquor license renewal privilege not amortizable where no evidence to show a departure from the city’s practice of renewing existing licenses, even though licensee had to apply annually for a renewal). Contra, WDEF Broadcasting Co. v. United States, 215 F.Supp. 818 (E.D.Tenn.1963). In our case, the only evidence in the record is that the asset in" }, { "docid": "13647322", "title": "", "text": "MERCER, District Judge. The single contested issue presented on this petition is the question whether a television network affiliation contract for a two-year term, which is automatically renewable, in the absence of termination by the affirmative act of either of the parties, for an unlimited number of successive two-year terms is a depreciable asset. The purpose of the depreciation allowance permitted under the Code is to enable a taxpayer to recover the cost of a wasting asset used in his business by charging the diminution in the asset’s value each year as a deduction from the gross income for that year. Detroit Edison Co. v. Commissioner of Internal Revenue, 319 U.S. 98, 63 S.Ct. 902, 87 L.Ed. 1286; Friend v. Commissioner of Internal Revenue, 7 Cir., 119 F.2d 959, cert. denied 314 U.S. 673, 62 S.Ct. 136, 86 L.Ed. 538. The end to be achieved “is to approximate and reflect the financial consequences to the taxpayer of the subtle effects of time and use on the value of his capital assets.” Detroit Edison Co. v. Commissioner of Internal Revenue, supra, 319 U.S. at 101, 63 S.Ct. at 904. Intangible assets will not usually be a proper subject of the depreciation allowance unless the useful life of the asset is definitely limited or unless the intangible asset has value in the production of income for only a limited period of time, the duration of which can be estimated with reasonable accuracy. 26 CFR § 1.167(a) (3). Although the Internal Revenue Code contains no specific reference to intangible assets in that regard, the Treasury Regulation, first adopted under the Revenue Act of 1918, remained substantially unchanged through successive reenactments of the Code and the Regulation has thereby acquired the force and effect of law. Helvering v. Winmill, 305 U.S. 79, 83, 59 S.Ct. 45, 83 L.Ed. 52; Old Mission Portland Cement Co. v. Helvering, 293 U.S. 289, 293, 294, 55 S.Ct. 158, 79 L.Ed. 367; United States v. Dakota-Montana Oil Co., 288 U.S. 459, 466, 53 S.Ct. 435, 77 L.Ed. 893. The Tax Court found that the contracts in issue were depreciable" }, { "docid": "6987417", "title": "", "text": "a whole persuasively indicates, that taxpayer’s contracts may be expected to remain in force for a wholly unpredictable period of time.” 350 F.2d at 586. See also Westinghouse Broadcasting Co. v. Commissioner, 36 T.C. 912, aff’d, 309 F.2d 279 (3d Cir. 1962), cert. denied, 372 U.S. 935, 83 S.Ct. 881, 9 L.Ed.2d 766 (1963) (cost of television network contract, renewable every two years, not amortizable since asset had an indeterminate useful life). To the same effect, see Gant v. Commissioner, 263 F.2d 558 (6th Cir. 1959) (guaranteed payments to distributor under distributorship contract not amortizable where contract to remain in effect for an unascertainable period of time); and Nachman v. Commissioner, 191 F.2d 934 (5th Cir. 1951) (cost of liquor license renewal privilege not amortizable where no evidence to show a departure from the city’s practice of renewing existing licenses, even though licensee had to apply annually for a renewal). Contra, WDEF Broadcasting Co. v. United States, 215 F.Supp. 818 (E.D.Tenn.1963). In our case, the only evidence in the record is that the asset in question will continue to benefit the taxpayer for an indeterminate period, and its life cannot “be estimated with reasonable accuracy.” Since there is no ambiguity in this testimony and no countervailing testimony, a contrary conclusion defies rational thought. Richmond points to the jury’s finding that the license has a useful life of limited duration. If there were any basis for such a finding — if there were any submissible issue of fact as to duration — we should of course consider ourselves bound by the jury’s answer to the special interrogatory, notwithstanding our disagreement. But there was no shred of evidence of \"experience or other factors” to support such a finding. The bare requirement of periodic renewal cannot be invested with the dominant significance claimed for it. It would completely nullify the pertinent Treasury Regulation to treat the triennial renewal requirement as sufficient to raise an issue of duration in the total absence of any evidence that three years is in fact the life of the asset, determinable “with reasonable accuracy.” The passage of the" }, { "docid": "13647339", "title": "", "text": "the expected valuable life of an intangible asset, it follows that the asset is not the proper subject of depreciation allowance. The Tax Court’s findings that the estimated useful life of these contracts is ascertainable with reasonable certainty and that these contracts are depreciable assets are clearly erroneous. The decision of the Tax Court is therefore reversed. Reversed. . Tlie applicable Regulation provides: “If the intangible asset is known from experience or other factors to be of use in the business or in the production of income for only a limited period, the length of which can be estimated with reasonable accuracy, such an intangible asset may be the subject of a depreciation allowance. Examples are patents and copyrights. An intangible asset, the useful life of which is not limited, is not subject to the allowance for depreciation. * * * ” 26 CFR, Sec. 1.167(a) (3). . Applying the Regulation, the courts have allowed depreciation over the term thereof of the value of real estate leases and baseball player contracts, which, though renewable, could be renewed beyond the specified life of the contract only by renegotiation. E.g., Bonwit Teller & Co. v. Commissioner of Internal Revenue, 2 Cir., 53 F.2d 381, 82 A.L.R. 325; Commissioner of Internal Revenue v. Pittsburgh Athletic Co., 3 Cir., 72 F.2d 883; Helvering v. Kansas City American Assoc. Baseball Co., 8 Cir., 75 F.2d 600. Also recognized as proper subjects for depreciation have been street railway and motor coach franchises which were for fixed terms and not automatically renewable. E.g., Cleveland Railway Co. v. Commissioner, 36 B.T.A. 208; Pasadena City Lines, Inc. v. Commissioner, 23 T.C. 34. Examples of intangibles which have been held not to be the proper subject of a depreciation allowance are a F.C.C. broadcasting license, KWTX Broadcasting Co. v. Commissioner of Internal Revenue, 5 Cir., 272 F.2d 406; renewable liquor licenses and saloon permits, Tube Bar Inc. v. Commissioner, 15 T.C. 922, and McAvoy Co. v. Commissioner, 10 B.T.A. 1017, grazing permits, Shuffle-barger v. Commissioner, 24 T.C. 980, and subscription lists, Toledo Newspaper Co. v. Commissioner, 2 T.C. 794. ." }, { "docid": "15256914", "title": "", "text": "the intangibles to the network contracts, candidly using “the broadest kind of estimate.” In so doing, the court does not refer to any evidence which suggests in a positive manner the precise value attributable to the contracts. This, in my opinion, is improper. The fault, admittedly, lies largely with the record. Nothing in the evidence authorizes a more precise statement than that the value of the contracts was an amount between zero and something less than $459,706. It is well established that plaintiff has the burden of proving its right to a deduction. Implicit in this statement is the recognition of plaintiff’s obligation to prove each and every point necessary to qualify for the deduction it claims. It seems to me obvious that, in the same way that proof of an asset’s useful life is necessary before a depreciation deduction will be allowed, an asset’s cost basis is an essential element of proof before a loss deduction is permissible. As recognized in Westinghouse Broadcasting Co. v. Commissioner of Internal Revenue, 309 F.2d 279, 282 (3d Cir. 1962), cert. denied, 372 U.S. 935, 83 S.Ct. 881, 9 L.Ed.2d 766 (1963), tax payer’s failure to prove the useful life of a network affiliation contract with “reasonable certainty” — the test in the regulation — resulted in a denial of the claimed deduction. Certainly the similar importance of the asset’s basis to the determination of the deductible amount warrants our requiring a reasonable basis in fact for the value we attribute to the affiliated network contracts here. At least, something more than “the broadest kind of estimate” is required. Since, however, the parties’ chief concern in previous litigation has been whether the television license had any value, plaintiff may not have presented all the available evidence concerning the value of the network contracts. For that reason, in light of the complexity of this case, I would not dismiss the petition, but would remand the case to a commissioner for trial on the sole and precise issue of the value of the network contracts. . See, e.g., Oliver v. Commissioner of Internal Revenue, 364" }, { "docid": "9441955", "title": "", "text": "not limited, is not subject to the allowance for depreciation. No allowance will be permitted merely because, in the unsupported opinion of the taxpayer, the intangible asset has a limited useful life. No deduction for depreciation is allowable with respect to goodwill. Treasury Regulations which have been in effect over an extended period of time are deemed to have received congressional approval and have the effect of law. Helvering v. Winmill, 305 U.S. 79, 83, 59 S.Ct. 45, 83 L.Ed. 52 (1938). As this regulation has remained in effect in substantially the same form since 1918, it would appear to fit well within this classification. . The situation here also appears analogous to that before the Fifth Circuit in Nachman v. C. I. R., 191 F.2d 934, 936 (5th Cir., 1951) , where the court denied amortization of a liquor license which was renewable annually. This renewal privilege being of indefinite duration, dependent upon petitioners’ wishes as well as upon the City’s future course of action, there is no rational basis for prediction as to duration. Bee also, Richmond Television Corp. v. United States, 354 F.2d 410 (4th Cir., 1965) ; Commissioner of Internal Revenue v. Indiana Broadcasting Corp., 350 F.2d 580 (7th Cir., 1965), cert. denied 382 U.S. 1027, 86 S.Ct. 645, 15 L.Ed.2d 539 (1966)." }, { "docid": "15256915", "title": "", "text": "Cir. 1962), cert. denied, 372 U.S. 935, 83 S.Ct. 881, 9 L.Ed.2d 766 (1963), tax payer’s failure to prove the useful life of a network affiliation contract with “reasonable certainty” — the test in the regulation — resulted in a denial of the claimed deduction. Certainly the similar importance of the asset’s basis to the determination of the deductible amount warrants our requiring a reasonable basis in fact for the value we attribute to the affiliated network contracts here. At least, something more than “the broadest kind of estimate” is required. Since, however, the parties’ chief concern in previous litigation has been whether the television license had any value, plaintiff may not have presented all the available evidence concerning the value of the network contracts. For that reason, in light of the complexity of this case, I would not dismiss the petition, but would remand the case to a commissioner for trial on the sole and precise issue of the value of the network contracts. . See, e.g., Oliver v. Commissioner of Internal Revenue, 364 F.2d 575 (8th Cir. 1966); Parmelee Transportation Co. v. United States, 351 F.2d 619, 173 Ct.Cl. 139 (1965). . See, e.g., Mayrath v. Commissioner of Internal Revenue, 357 F.2d 209 (5th Cir. 1966) (property not shown to have been used in trade or business); Schubert v. Commissioner of Internal Revenue, 286 F.2d 573 (4th Cir.), cert. denied, 366 U.S. 960, 81 S.Ct. 1919, 6 L.Ed.2d 1253 (1961) (plaintiff must prove interest in depreciable property). . See Oliver v. Commissioner of Internal Revenue, 364 F.2d 575 (8th Cir. 1966), wherein it was held, in regard to the deductibility of medical expenses, that: “ * * * The taxpayer bears the burden of proving the facts necessary to establish his right to a deduction and the burden of proving the amount of the deduction. * * * ” Id. at 577. Treas.Reg. § 1.167(g)-1 (1956) (originally numbered 1.167(f)-1) provides that the basis for depreciation shall be the adjusted basis as provided in Int.Rev. Code of 1954, § 1011, for determining the gain from the sale or other" }, { "docid": "23377625", "title": "", "text": "so, taxpayers frequently are prevented from taking § 167(a) deductions because they are unable to prove affirmatively that the particular asset involved satisfies all of the prerequisites for amortizability. Many of the reported cases turn on this factual question and thus stand not so much for the proposition that the type of asset is never amortizable as they do for the conclusion that the very asset involved failed to qualify for one or more particular reasons. Thus, in KWTX Broadcasting Co. v. Commissioner, 5 Cir. 1959, 272 F.2d 406, affirming 31 T.C. 952, we affirmed the disallowance of a § 167(a) deduction for the costs of obtaining a three-year li cense from the Federal Communications Commission to operate a television broadcasting station. Our holding was squarely grounded on the fact finding that the FCC “has never refused to grant a renewal of a license once it has been granted.” 272 F.2d at 407 n. 1. Rather than being of ascertainable life, a prerequisite to depreciability, the asset was specifically considered to be of indefinite duration. See also Richmond Television Corp. v. United States, 4 Cir. 1965, 354 F.2d 410; Commissioner v. Indiana Broadcasting Corp., 7 Cir. 1965, 350 F.2d 580, cert. denied, 382 U.S. 1027, 86 S.Ct. 645, 15 L.Ed.2d 539. Similarly, in Nachman v. Commissioner, 5 Cir. 1951, 191 F.2d 934, affirming 12 T.C. 1204, we refused to allow the costs of obtaining a retail liquor license valid for only five months to be depreciated. Permitting the taxpayer to deduct the “official fee” as an ordinary and necessary business expense, we denied a depreciation deduction for the “premium” paid for the license because the licenses involved “were assignable, and carried with them valuable renewal privileges, as it was the established practice in issuing renewal licenses from year to year to prefer the holders of existing licenses over other applicants.” 191 F.2d at 935. Again, even though the asset had a known “expiration date,” the government was able to prevail by satisfying the trier of fact that the useful life of the asset was likely to continue indefinitely. See also" }, { "docid": "13647337", "title": "", "text": "renewals. There is nothing to suggest that CBS will change its policy, or that at any reasonably predictable time the one party or the other will cause the contracts to be terminated. Moreover, unlike an asset having a declining value with the passage of time, these contracts probably will have a constant value, or even an increasing value, in years to come. In the single previous case dealing with the issue before us it was held that the taxpayer had failed to adduce any evidence to prove that network affiliation contracts had a useful life capable of reasonable calculation. Westinghouse Broadcasting Co. v. Commissioner, 36 T.C. 912, aff’d 3 Cir., 309 F.2d 279, cert. denied 372 U.S. 935, 83 S.Ct. 881, 9 L.Ed.2d 766. Taxpayer argues that the stipulated industry-history exhibit supplies the deficiency held to exist in Westinghouse. There is no merit to that position. That exhibit suggests, and the record as a whole persuasively indicates, that taxpayer’s contracts may be expected to remain in force for a wholly unpredictable period of time. We think that a close analogy to this case is found in Nachman v. Commissioner of Internal Revenue, 5 Cir., 191 F.2d 934. There the taxpayer paid $8,-000 for a city liquor license having five months of a one-year term unexpired. Although the license itself contained no provision relative to renewal, the evidence indicated that the city, in issuing licenses from year to year, gave preference to holders of existing licenses over other applicants for the limited number of licenses authorized. The court affirmed the Tax Court’s decision holding, inter alia, that the license was indefinite in duration and, therefore, a non-depreciable capital asset. The Nachman rationale was applied in Gant v. Commissioner of Internal Revenue, 6 Cir., 263 F.2d 558, KWTX Broadcasting Co. v. Commissioner of Internal Revenue, 5 Cir., 272 F.2d 406, and Coca-Cola Bottling Co. v. Commissioner of Internal Revenue, 6 B.T.A. 1333. We think that the reasoning of those cases is sound and that the present case cannot be factually distinguished therefrom. Where there is no reasonable basis for the prediction of" }, { "docid": "6970732", "title": "", "text": "to the other party, delivered on or before December 31st of any year beginning with the year 1947, terminate this agreement, such termination to take effect on June 30th of the next succeeding year.” The Commissioner contended that this clause rendered the duration of the contract indefinite. In holding otherwise, the Board of Tax Appeals wrote: “This provision, we believe, is analogous to a renewal option to extend a lease beyond ‘the period over which exhaustion of the leasehold is to be spread [where] the renewal privilege had not been exercised and may never be.’ Bonwit Teller & Co. v. Commissioner, 53 F.2d 381 [10 AFTR 656], certiorari denied 284 U.S. 690, [52 S.Ct. 266, 76 L.Ed. 582]. Under such circumstances depreciation is to be allowed during the period covered by the lease, the exercise of the option creating a new term, (citing cases) * * * The contract ‘grants, * * * for the period ending December 31, 1947, an exclusive franchise * * * ’ Thereafter, it may be terminated by Automatic [Division of Timken]. Petitioner has no assurance it will not be terminated at that time. The provision, therefore, gives petitioner no more assurance it will have a franchise after December 31, 1947, than would one giving it an option to renew if Automatic [Division of Timken] should see fit to grant a franchise to anyone.” Defendant relies upon Nachman v. Commissioner, 191 F.2d 934 (5th Cir. 1951), Thrifticheck Service Corporation v. Commissioner, 287 F.2d 1 (2d Cir. 1961), and Westinghouse Broadcasting Co. v. Commissioner, 36 T.C. 912 (1961), aff’d 309 F.2d 279 (3rd Cir. 1962). The facts in those cases, however, differ significantly from those existing here. In Thrifticheck the taxpayer claimed a deduction for depreciation of an amount paid for 200 customer service contracts with individual banks pursuant to which the taxpayer furnished the banks with a system for the sale of checks. Each contract was for a term of five years and was automatically renewed for a like further term unless either party within a stated time before expiration gave notice of its election" }, { "docid": "13647340", "title": "", "text": "be renewed beyond the specified life of the contract only by renegotiation. E.g., Bonwit Teller & Co. v. Commissioner of Internal Revenue, 2 Cir., 53 F.2d 381, 82 A.L.R. 325; Commissioner of Internal Revenue v. Pittsburgh Athletic Co., 3 Cir., 72 F.2d 883; Helvering v. Kansas City American Assoc. Baseball Co., 8 Cir., 75 F.2d 600. Also recognized as proper subjects for depreciation have been street railway and motor coach franchises which were for fixed terms and not automatically renewable. E.g., Cleveland Railway Co. v. Commissioner, 36 B.T.A. 208; Pasadena City Lines, Inc. v. Commissioner, 23 T.C. 34. Examples of intangibles which have been held not to be the proper subject of a depreciation allowance are a F.C.C. broadcasting license, KWTX Broadcasting Co. v. Commissioner of Internal Revenue, 5 Cir., 272 F.2d 406; renewable liquor licenses and saloon permits, Tube Bar Inc. v. Commissioner, 15 T.C. 922, and McAvoy Co. v. Commissioner, 10 B.T.A. 1017, grazing permits, Shuffle-barger v. Commissioner, 24 T.C. 980, and subscription lists, Toledo Newspaper Co. v. Commissioner, 2 T.C. 794. . The three existing television networks are designated throughout this opinion by the following initials: CBS for Columbia Broadcasting Company, and NBC for National Broadcasting Company, and ABC for American Broadcasting Company. . Very High Frequency; Ultra High Frequency. . Federal Communications Commission. . Because few early television receivers were equipped to receive UHF broadcasts, UHF stations in operation reached a high of 121 stations in 1954, and then declined in number to 76 stations in 1960. By January 1, 1963, the number of such stations had increased to 90 under the impetus of legislation and rules requiring all channel capability for new television receivers. . First licensed as WINV-TV. . There is no charge for programming, except that for recorded programs, the networks do charge the affiliated station for the recording furnished. . In a given market area, the cost of the operation of various stations, exclusive of the cost of programs, is substantial and approximately equivalent. This factor then has a very real bearing upon the profits to be realized by a station. ." }, { "docid": "6970728", "title": "", "text": "on May 31, 1956, liquidated and all its assets were distributed to plaintiff taxpayer, its sole stockholder. The Agency Contract was one of the assets received by the plaintiff taxpayer in the liquidation of the Old News on May 31, 1956, at which time approximately 287.5 months of the initial period of thirty years of the Agency Contract remained. On June 1, 1956, the name of the plaintiff taxpayer was changed to The Birmingham News Company; and on that date the Old News was dissolved. It has been stipulated as follows :■ 13. If it be determined that the Agency Contract has an ascertainable life for amortization or depreciation purposes, the parties agree that the amortizable or depreciable basis for the Agency Contract is $3,009,000. 19. The sum of $3,009,000 referred to in paragraph 13 of the Stipulation of Facts (above set forth) does not include any basis for good will or any constituent element of good will. In the determination of said amount of $3,009,000 account was taken only of the portion of the initial period of the Agency Contract from June 1, 1956, to May 14, 1980, both inclusive. In Bonwit Teller & Co. v. Commissioner, 53 F.2d 381, 82 A.L.R. 325 (2d Cir. 1931), cert. den. 284 U.S. 690, 52 S.Ct. 266, 76 L.Ed. 582, it was held that the taxpayer who in 1911 became lessee under a twenty-one year lease had the right to amortize the value of the lease over the approximately nineteen years of its term remaining after March 1, 1913, despite the fact that the lessee had an option to renew for an additional twenty-one years at a rental to be determined by an appraisal of the property to be made at the time of renewal. In the course of its opinion the Court said: “Despite the uncertainty of the rental to be paid during the extension, the option may give additional value to the lease, just as many other' types of provisions might give the lease value. But it is still true that the property being used in the business (the leasehold)" }, { "docid": "15256911", "title": "", "text": "licenses is amortizable and whether the $75,000 of cost allocated to the television advertising contracts is amortizable. In the ease of intangible assets, it is indisputable that a taxpayer is entitled to recover his cost basis through amortization deductions— provided it is shown that such assets have an ascertainable useful life. Reg. § 1.167 (a)-3 (1954 Code) and Reg. 118, § 39.23(1)-3 (1939 Code). The difficulty here is that neither the licenses nor the advertising contracts have a determinable useful life. Until 1955, a license was granted for a one year term and since then it has been for a three year term, although in practice licenses have been renewed almost automatically. In the case of the television advertising contracts “[t]hese contracts were not purchased as individual contracts. * * [Plaintiff] purchased a mass [i. e., indivisible] asset whose value will fluctuate as contracts expire and as new contracts are signed. When confronted with this issue * * * [it] had [been] consistently held [that] such a mass asset [is] not depreciable because it did not have a determinable useful life.” Westinghouse Broadcasting Co., 36 T.C. 912, 923 (1961), and cases cited, aff’d on other issues, 309 F.2d 279 (3rd Cir. 1962), cert. denied, 372 U.S. 935, 83 S.Ct. 881, 9 L.Ed.2d 766 (1963). It is quite true (as discussed before) that at the time of plaintiff’s acquisition of KPHOTV advertisers had no other stations to turn to and that with the advent of other stations, there was a likelihood that some of them would terminate their contracts with KPHO-TV and deal with the new stations as they came on the air. However, there was also the probability that other advertisers would, in the ordinary course of business, renew their contracts for an indefinite time in the future. “[Plaintiff] must show more than uncertainty as to the length of the * * * useful life.” Westinghouse Broadcasting Co., supra, 36 T.C. at 921. It must show that the licenses and the advertising contracts did not possess any reasonable prospect of continuity. And this showing plaintiff has failed to make. It" }, { "docid": "6970731", "title": "", "text": "basis for the Agency Contract, namely, $3,009,000, account was taken only of that portion of the initial period commencing June 1,1956, the date of acquisition by the taxpayer, and ending May 14, 1980, the end of the initial period of thirty years. In Bonwit Teller the taxpayer alone had an option to renew the lease, whereas neither the plaintiff nor the Post may by unilateral action renew the Agency Contract beyond the initial period of thirty years. That is to say, a renewal will occur only if both parties concur. The fact that they may indicate their concurrence by withholding notice to terminate is considered immaterial. Automatic Heating & Cooling Co. v. Commissioner, decided October 20, 1942 (1942 B.T.A. and T.C. Memorandum Decisions, par. 42,561), involved a renewal provision similar to that in the Agency Contract. In 1937 the taxpayer was granted an exclusive franchise for 10% years, to be “ * « * automatically extended from 1947 [its original termination date], from year to year, provided, however, that either party may, by written notice to the other party, delivered on or before December 31st of any year beginning with the year 1947, terminate this agreement, such termination to take effect on June 30th of the next succeeding year.” The Commissioner contended that this clause rendered the duration of the contract indefinite. In holding otherwise, the Board of Tax Appeals wrote: “This provision, we believe, is analogous to a renewal option to extend a lease beyond ‘the period over which exhaustion of the leasehold is to be spread [where] the renewal privilege had not been exercised and may never be.’ Bonwit Teller & Co. v. Commissioner, 53 F.2d 381 [10 AFTR 656], certiorari denied 284 U.S. 690, [52 S.Ct. 266, 76 L.Ed. 582]. Under such circumstances depreciation is to be allowed during the period covered by the lease, the exercise of the option creating a new term, (citing cases) * * * The contract ‘grants, * * * for the period ending December 31, 1947, an exclusive franchise * * * ’ Thereafter, it may be terminated by Automatic [Division" }, { "docid": "21294270", "title": "", "text": "this way we permitted plaintiff to allocate part of the purchase price of a broadcasting station to a network con tract to establish a cost basis for tax purposes. Cf. Roy H. Park Broadcasting, Inc., 56 T.C. 784 (1971); Indiana Broadcasting Corp., supra. In the instant case the plaintiff has presented clear evidence showing that the five personal service contracts had significant and measurable value independent of their direct contribution to the value of plaintiff’s goodwill and its FCC broadcasting licenses. These contracts were necessary assets for the continued profitability of the station. They provided nothing to KFOX’s institutional goodwill inasmuch as radio or television audiences are not loyal to a particular station so much as an individual star or format. See Meredith Broadcasting Co. v. United States, supra, at 5, 405 F. 2d at 1216. Should these stars move to another station, the audience in all likelihood would move also. * * * We agree that there is little, if any, goodwill between station and audience since, as has been demonstrated, viewers are concerned with the quality of programs rather than with the particular call letters or management of a station. * * * [Roy H. Park Broadcasting, Inc., 56 T.C. 784, 813 (1971)] We therefore hold that such service contracts, as are found here, may be divisible from “goodwill” and other intangibles and be treated separately for tax purposes. Notwithstanding our holding that these contracts are independent assets severable from that of the station’s goodwill, it must still be shown that they are amortizable or depreciable. In general, the cost of an intangible asset which can be shown to have a limited useful life is recoverable through a depreciation allowance over that asset’s lifetime. Treas. Reg. § 1.167(a)-3 (1969). With respect to such intangible assets as contracts, the reasonable useful lifetime is its stated term. Triangle Publications, Inc., 54 T.C. 138, 147 (1970); David Hoffman, 48 T.C. 176 (1967). The existence of renewal options makes the useful life of the contract no less definite. Bonwit Teller & Co. v. Commissioner, 53 F. 2d 381 (2d Cir. 1931), cert." }, { "docid": "23704552", "title": "", "text": "v. C. I. R., 2 Cir., 1931, 53 F.2d 381, 82 A.L.R. 325, certiorari denied, Bonwit Teller & Co. v. Burnet, 1932, 284 U.S. 690, 52 S.Ct. 266, 76 L.Ed. 582; 379 Madison Ave., Inc. v. C. I. R., 2 Cir., 1932, 60 F.2d 68; Dab v. C. I. R., 2 Cir., 1958, 255 F.2d 788; C. I. R. v. Pittsburgh Union Stock Yards Co., 3 Cir., 1931, 46 F.2d 646; and as to baseball players’ contracts, C. I. R. v. Pittsburgh Athletic Co., 3 Cir., 1934, 72 F.2d 883; C. I. R. v. Chicago National League Ball Club, 7 Cir., 1935, 74 F.2d 1010; Helver-ing v. Kansas City American Association Baseball Co., 8 Cir., 1935, 75 F.2d 600. Neither was there any indication that available data permitted the taxpay er to establish an average life span for the contracts, naturally so since even its predecessor’s experience would not necessarily be its own. The stipulation postponing computation of any allowable deduction did not relieve taxpayer from the necessity of showing there was some reasonable basis for determining one. Whether, under appropriate methods of allocation or accounting, a deduction might be taken upon cessation of relations with one or more of the banks in question, we do not decide. Affirmed. . The oldest contract annexed to the stipulation seems to continue the automatic renewals indefinitely. However, we read the others as providing only a single automatic renewal. . “Sec. 39.23 (l)-3 Depreciation of intangible property. Intangibles, the use of which in the trade or business or in the production of income is definitely limited in duration, may be the subject of a depreciation allowance. Examples are patents and copyrights, licenses, and franchises. Intangibles, the use of which in the business or trade or in the production of income is not so limited, will not usually be a proper subject of such an allowance. If, however, an intangible asset acquired through capital outlay is known from experience to be of value in the business or in the production of income for only a limited period, the length of which can be estimated" }, { "docid": "21294271", "title": "", "text": "with the quality of programs rather than with the particular call letters or management of a station. * * * [Roy H. Park Broadcasting, Inc., 56 T.C. 784, 813 (1971)] We therefore hold that such service contracts, as are found here, may be divisible from “goodwill” and other intangibles and be treated separately for tax purposes. Notwithstanding our holding that these contracts are independent assets severable from that of the station’s goodwill, it must still be shown that they are amortizable or depreciable. In general, the cost of an intangible asset which can be shown to have a limited useful life is recoverable through a depreciation allowance over that asset’s lifetime. Treas. Reg. § 1.167(a)-3 (1969). With respect to such intangible assets as contracts, the reasonable useful lifetime is its stated term. Triangle Publications, Inc., 54 T.C. 138, 147 (1970); David Hoffman, 48 T.C. 176 (1967). The existence of renewal options makes the useful life of the contract no less definite. Bonwit Teller & Co. v. Commissioner, 53 F. 2d 381 (2d Cir. 1931), cert. denied, 284 U.S. 690 (1932); Birmingham News Co. v. Patterson, 224 F. Supp. 670 (N.D. Ala. 1963), aff'd 345 F. 2d 531 (5th Cir. 1965). However, as in any other intangible asset, a depreciation deduction is not allowed where the contract has no definite useful life, such as the case of network affiliation contracts subject to revocation on 90 days notice. Commissioner v. Indiana Broadcasting Corp., 350 F. 2d 580 (7th Cir. 1965), cert. denied, 382 U.S. 1027 (1966); Westinghouse Broadcasting Co. v. Commissioner, 309 F. 2d 279 (3d Cir. 1962), cert. denied, 372 U.S. 935 (1983). Beyond the general rule that contracts having a definable lifetime may be depreciated, the Internal Eevenue Service has recognized that the cost of personal service contracts may likewise be subject to a depreciation allowance, and in some cases its useful life may include renewal options. Rev. Rul. 137, 1971-1 Cum. Bull. 104; Rev. Rul. 379, 1967-2 Cum. Bull. 127. Cf. Commissioner v. Pittsburgh Athletic Co., 72 F. 2d 883 (3d Cir. 1934). In Pittsburgh Athletic Co., supra, the" }, { "docid": "21294272", "title": "", "text": "denied, 284 U.S. 690 (1932); Birmingham News Co. v. Patterson, 224 F. Supp. 670 (N.D. Ala. 1963), aff'd 345 F. 2d 531 (5th Cir. 1965). However, as in any other intangible asset, a depreciation deduction is not allowed where the contract has no definite useful life, such as the case of network affiliation contracts subject to revocation on 90 days notice. Commissioner v. Indiana Broadcasting Corp., 350 F. 2d 580 (7th Cir. 1965), cert. denied, 382 U.S. 1027 (1966); Westinghouse Broadcasting Co. v. Commissioner, 309 F. 2d 279 (3d Cir. 1962), cert. denied, 372 U.S. 935 (1983). Beyond the general rule that contracts having a definable lifetime may be depreciated, the Internal Eevenue Service has recognized that the cost of personal service contracts may likewise be subject to a depreciation allowance, and in some cases its useful life may include renewal options. Rev. Rul. 137, 1971-1 Cum. Bull. 104; Rev. Rul. 379, 1967-2 Cum. Bull. 127. Cf. Commissioner v. Pittsburgh Athletic Co., 72 F. 2d 883 (3d Cir. 1934). In Pittsburgh Athletic Co., supra, the court permitted the depreciation of an athletic contract although it limited the useful life to the one year of the contract without considering the reserve clause or renewal option that was part of it. This doctrine was expanded by the IBS in its Rev. Rul. 137, supra, in which the Service permitted the cost of a baseball player contract to be capitalized over the useful life which included both the one year term of the contract as well as the additional terms represented by the contract’s renewal or “reserve” provision. The cost of the contract was defined to mean the amount paid or incurred on purchasing the contract plus any bonuses paid to obtain the signing. Taking into consideration the “reserve” clause in determining the useful life of a personal service contract was again reconfirmed by the IBS in its Rev. Rul. 137, supra, dealing specifically with a football player’s contract. Looking at the particular facts of the instant case we see no reason why the contracts of the 'C & W announcers and the" }, { "docid": "23704551", "title": "", "text": "agreement not to compete, see 4 Mertens, supra, § 23.68, p. 155 & n. 34; George H. Payne, 1954, 22 T.C. 526; and Ullman v. C. I. R., 2 Cir., 1959, 264 F.2d 305, 307-308, and cases there cited in footnote 3, would be fatal to the depreciation deduction claimed. However, we are not required to place our decision on the ground of failure to allocate the purchase price between one element of value and another. For we think the combination of provisions for premature cancellation and automatic renewals with the history and prospect of relations continuing beyond the ten years of the initial and first renewal terms, which is here presented, precluded any reasonable determination of a period for amortizing the amounts paid. No one of the three periods appearing in the contracts — the period before the bank could cancel, the original term, or the sum of the original and renewal terms- — corresponded with that during which taxpayer expected to realize benefits. Compare cases with respect to leases, Bonwit Teller & Co. v. C. I. R., 2 Cir., 1931, 53 F.2d 381, 82 A.L.R. 325, certiorari denied, Bonwit Teller & Co. v. Burnet, 1932, 284 U.S. 690, 52 S.Ct. 266, 76 L.Ed. 582; 379 Madison Ave., Inc. v. C. I. R., 2 Cir., 1932, 60 F.2d 68; Dab v. C. I. R., 2 Cir., 1958, 255 F.2d 788; C. I. R. v. Pittsburgh Union Stock Yards Co., 3 Cir., 1931, 46 F.2d 646; and as to baseball players’ contracts, C. I. R. v. Pittsburgh Athletic Co., 3 Cir., 1934, 72 F.2d 883; C. I. R. v. Chicago National League Ball Club, 7 Cir., 1935, 74 F.2d 1010; Helver-ing v. Kansas City American Association Baseball Co., 8 Cir., 1935, 75 F.2d 600. Neither was there any indication that available data permitted the taxpay er to establish an average life span for the contracts, naturally so since even its predecessor’s experience would not necessarily be its own. The stipulation postponing computation of any allowable deduction did not relieve taxpayer from the necessity of showing there was some reasonable basis" } ]

[ { "docid": "23330336", "title": "", "text": "from liability in his official capacity for his deliberate indifference to Leach’s needs while he was incarcerated in the Shelby County Jail. The recent case of West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988), sheds some light on this issue. In West, a doctor under contract to provide medical services for prison inmates was charged with a violation of section 1983 for deliberate indifference to a prisoner’s medical needs in violation of the eighth amendment. The issue in West was whether a physician under contract with the State to provide medical services to prison inmates acts “under color of state law” within the meaning of section 1983. Id. 108 S.Ct. at 2252. The Court found in the affirmative and also observed that a contrary decision would diminish a prisoner’s eighth amendment right “since few of those with supervisory and custodial functions are likely to be involved directly in patient care.” Id. at 2258 n. 12. The Sheriff here claims that this indicates that he should not be held liable in this case as a supervisory employee because the medical care of inmates is the responsibility of the medical personnel and that only they should be liable for the injuries that they cause. Although West may support an argument that he is not personally liable as a supervisor, it does not support any argument that the County should not be liable here. As the court noted in West: Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State’s prisoners of the means to vindicate their Eighth Amendment rights. The State bore an affirmative obligation to provide medical care to West.... Id. at 2259 (footnote omitted). This indicates that contrary to the Sheriff’s contentions, the State (and here the County) retains responsibility despite having contracted out the medical care of its prisoners. Therefore, since the Sheriff is here in his official capacity (and it is effectively the County involved here), the Sheriff is not excused from" } ]

[ { "docid": "1568286", "title": "", "text": "the custody and super vision of prisoners, can be held liable for violations of the Eighth Amendment. Cf. Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966) (“[W]hen private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.”); West v. Atkins, 487 U.S. 42, 57, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (holding that a private doctor treating prisoners under a contract with state prison authorities acted under color of state law for purposes of § 1983 suit alleging Eighth Amendment violation); Richardson v. McKnight, 521 U.S. 399, 412-13, 117 S.Ct. 2100, 138 L.Ed.2d 540 (1997) (holding that prison guards employed by a private prison are not entitled to qualified immunity from suits under § 1983, but that whether the private defendants acted under color of state law in violation of § 1983 was a matter to be determined by the district court); Dellis v. Corrections Corp. of Am., 257 F.3d 508, 512 (6th Cir.2001) (holding that plaintiff adequately stated claim under Eighth Amendment against a private prison and personnel employed there); Skelton v. Pri-Cor, Inc., 963 F.2d 100, 102 (6th Cir.1991) (holding that a private prison under contract with state acted under col- or of state law for purposes of § 1983 suit alleging violations of the Eighth Amendment); Ancata v. Prison Health Svcs., 769 F.2d 700, 703 (11th Cir.1985) (holding that a private medical service responsible for treating state prisoners engaged in state action subjecting it to suit under § 1983 because it performed “a function which is traditionally the exclusive prerogative of the state”); Mauldin v. Burnette, 89 F.Supp.2d 1371, 1376 (M.D.Ga.2000) (holding the defendant, a private person to whom plaintiff, a prisoner, was entrusted on work release, potentially liable under § 1983 for constitutional violations because defendant “was authorized by [the county] ... to sign an inmate out of jail, supervise him throughout the week, maintain discretion and authority over his actions and behavior, and then return him to ... jail" }, { "docid": "14321037", "title": "", "text": "not withstanding the verdict or, in the alternative, for a new trial. See Fed.R.Civ.P. 50, 59. The district court denied the motion, resting largely on the reasoning expressed in its summary judgment ruling. The casino and Brown (the only defendants found liable by the jury) brought this timely appeal. They argue that: (1) it was improper for the district court to hold they were state actors as a matter of law and accordingly seek either a new trial or judgment in their favor on the § 1983 claim; (2) in connection with Romanksi’s claim that Defendants lacked probable cause to arrest her, the district court gave an erroneous jury instruction on the issue of whether the token was abandoned; (3) apparently in connection only with Defendants’ own desire for a jury instruction on a purported common law right of private businesses to detain patrons suspected of theft, the district court erroneously declined to accept Defendants’ proposed instruction; and (4) the $875,000 punitive damages award, imposed exclusively on the basis of the jury’s finding of liability under 42 U.S.C. § 1983, is so excessive that it does not comport with due process. We consider each claim in turn. II. DISCUSSION A. State Action Section 1983 makes liable only those who, while acting under color of state law, deprive another of a right secured by the Constitution or federal law. 42 U.S.C. § 1983; Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Chapman v. Higbee Co., 319 F.3d 825, 833 (6th Cir.2003) (en banc); Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir.1992). A private actor acts under color of state law when its conduct is “fairly attributable to the state.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 947, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). “The Supreme Court has developed three tests for determining the existence of state action in a particular case: (1) the public function test, (2) the state compulsion test, and (3) the symbiotic relationship or nexus test.” Chapman, 319 F.3d at 833 (citing Wolotsky, 960 F.2d at 1335)." }, { "docid": "5339971", "title": "", "text": "state.”). Memphis in May contends that the district court erred when it ruled that Memphis in May, despite its status as a private corporation, operated as a state actor in ejecting Lansing from the area between the barricades. However, a private entity can be held to constitutional standards when its actions so approximate state action that they may be fairly attributed to the state. See, e.g., American Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40, -, 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999); Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). The Supreme Court in Lugar identified a two-part approach to the question of “fair attribution,” effectively requiring that the action be taken (a) under color of state law, and (b) by a state actor. See Lugar, 457 U.S. at 937, 102 S.Ct. 2744. In this circuit we have applied three tests to help in determining when the Lugar conditions are met. These are: (1) the public function test; (2) the state compulsion test; and (3) the symbiotic relationship or nexus test. See, e.g., Brentwood Academy v. Tennessee Secondary School Athletic Association, 180 F.3d 758, 763 (6th Cir.1999); Ellison v. Garbarino, 48 F.3d 192, 195 (6th Cir.1995); Wolotsky v. Huhn, 960 F.2d 1331 (6th Cir.1992). Each should be considered in turn. a. The Public Function Test The public function test requires that “the private entity exercise powers which are traditionally exclusively reserved to the state, such as holding elections or eminent domain.” Wolotsky, 960 F.2d at 1335 (internal citations omitted). See also Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (holding that provision of utility service is not a power reserved exclusively to the state). Lansing asserts that in the operation of its festival, Memphis in May maintained control over the public streets sur rounding Tom Lee Park, a function usually reserved to the city. We need not reach the question of whether control of city streets is a public function in the tradition of eminent domain and public elections, however," }, { "docid": "7566440", "title": "", "text": "violation of their First Amendment rights), even though the school had contracts with the state to pay for the education of most of the student body and most of its funding came from the government. See Rendell-Baker, 457 U.S. at 839-43, 102 S.Ct. 2764. D. Sixth Circuit Precedent The Blum trilogy provides a framework for determining what conduct may be fairly attributable to the state. It does not set out a single test, because the Court has held that determinations of state action must be made on a case-by-case basis. See Lugar, 457 U.S. at 939, 102 S.Ct. 2744. In attempting to enforce the mandate of the Blum trilogy, our circuit has applied three different tests. These are (1) the public function test, (2) the state compulsion test, and (3) the symbiotic relationship test. See Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir.1992) (holding that a private, non-profit corporation that contracted to provide mental health services to a county government in Ohio was not a state actor). The focus of all three tests is to determine whether the alleged state actor’s actions are “fairly attributable to the state.” Id. 1. The public function test The public function test asks whether “the private entity exercise[s] powers which are traditionally exclusively reserved to the state, such as holding elections, or eminent domain.” Wolotsky, 960 F.2d at 1335 (internal citations omitted). Clearly the conduct of interscholastic sports is not such a power. The Supreme Court stated in San Francisco Arts & Athletics, Inc., v. United States Olympic Committee, 483 U.S. 522, 545, 107 S.Ct. 2971, 97 L.Ed.2d 427 (1987), that “[njeither the conduct nor the coordination of amateur sports has been a traditional government function.” We also note that all of the circuits that have considered the issue, including our own, have held that there is no constitutional right to participate in interscholastic sports. See Alerding v. Ohio High Sch. Athletic Ass’n, 779 F.2d 315 (6th Cir.1985); Niles v. University Interscholastic League, 715 F.2d 1027 (5th Cir.1983); Hebert v. Ventetuolo, 638 F.2d 5 (1st Cir.1981); Moreland v. Western Pennsylvania Interscholastic Athletic League," }, { "docid": "22902919", "title": "", "text": "interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). III. A section 1983 claimant must show “1) the deprivation of a right secured by the Constitution or laws of the United States and 2) the deprivation was caused by a person acting under color of state law.” Simescu v. Emmet County Dept. of Social Servs., 942 F.2d 372, 374 (6th Cir.1991) (citing Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 1732-33, 56 L.Ed.2d 185 (1978)). A. This court recognizes the “public function test” “for determining whether private conduct is fairly attributable to the state.” Ellison v. Garbarino, 48 F.3d 192, 195 (6th Cir.1995). “The public function test ‘requires that the private entity exercise powers which are traditionally exclusively reserved to the state.’ ” Id. (quoting Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir.1992)). The defendants were “acting under color of state law” in that they were performing the “traditional state function” of operating a prison. See Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir.1993) (“It is clear that a private entity which contracts with the state to perform a traditional state function such as providing medical services to prison inmates may be sued under § 1983 as one acting ‘under color of state law.’ ”). B. “A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, -, 114 S.Ct. 1970, 1974, 128 L.Ed.2d 811 (1994) (citations omitted). Prison officials can be held liable for an Eighth Amendment violation when an inmate shows: (1) “that he is incarcerated under conditions posing a substantial risk of serious harm,” and (2) that the prison official had “the state of mind ... of ‘deliberate indifference’ to inmate health or safety.” Farmer, 511 U.S. at -, 114 S. Ct. at 1977 (citations omitted). “[A]cting or failing to act with deliberate indifference to a substantial" }, { "docid": "4386718", "title": "", "text": "United States while acting “under color of state law.” See Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir.1992). A private party's actions constitute state action under section 1983 where those actions may be “fairly attributable to the state.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 947, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). The Supreme Court has developed three tests for determining the existence of state action in a particular case: (1) the public function test, (2) the state compulsion test, and (3) the symbiotic relationship or nexus test. See Wolot-sky, 960 F.2d at 1335. On appeal, Chapman argues that summary judgment should have been denied because there was a genuine issue of material fact regarding the existence of state action under either the public function test or the nexus test. 1. Under the public function test, a private party is deemed a state actor if he or she exercised powers traditionally reserved exclusively to the state. The public function test has been interpreted narrowly. Only functions like holding elections, see Flagg Bros. v. Brooks, 436 U.S. 149, 157-58, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978), exercising eminent domain, see Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352-53, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), and operating a company- owned town, see Marsh v. Alabama, 326 U.S. 501, 505-09, 66 S.Ct. 276, 90 L.Ed. 265 (1946), fall under this category of state action. Our sister circuits have consistently held that the mere fact that the performance of private security functions may entail the investigation of a crime does not transform the actions of a private security officer into state action. See Wade v. Byles, 83 F.3d 902, 905 (7th Cir.1996); Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1457 (10th Cir.1995); White v. Scrivner Corp., 594 F.2d 140, 142-43 (5th Cir.1979). In White, for example, the Fifth Circuit held that the detention of a suspected shoplifter is not an exclusive state function. A merchant’s detention of persons suspected of stealing store property simply is not an action exclusively associated with the state. Experience teaches that the" }, { "docid": "20525120", "title": "", "text": "The question turns on whether the private individual’s actions can be fairly attributed to the state. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Our court has identified three tests to resolve the state-actor inquiry: the public-function test, the state-compulsion test, and the nexus test. Ellison v. Garbarino, 48 F.3d 192, 195 (6th Cir.1995). The parties agree that this case implicates the public-function test, which “requires that the private [individual] exercise powers which are traditionally exclusively reserved to the state.” Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir.1992). The Sixth Circuit has interpreted this test narrowly; rarely have we attributed private conduct to the state. Chapman v. Higbee Co., 319 F.3d 825, 833-34 (6th Cir.2003). Nevertheless, Carl argues that Dr. Jawor is a state actor under the public-function test and that West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988), supports his position. We agree. We start from the basic premise that states must provide medical care to those in custody. Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (“[E]lementary principles establish the government’s obligation to provide medical care for those whom it is punish ing by incarceration.”). West v. Atkins outlines the contours of this principle in the context of using private contractors to provide prison healthcare. In West, North Carolina contracted with a private physician to provide orthopedic services to inmates at a state prison. 487 U.S. at 43-44, 108 S.Ct. 2250. After an inmate tore his Achilles tendon, the doctor refused to operate and opted for a non-surgieal treatment plan. Id. at 44, 108 S.Ct. 2250. The inmate then sued under § 1983, claiming that the doctor’s decision to forgo surgery constituted deliberate indifference to his medical needs. Id. at 45, 108 S.Ct. 2250. The Supreme Court held that the doctor was a state actor because “[t]he State bore an affirmative obligation to provide adequate medical care to [the plaintiff]; the State delegated that function to [the doctor]; and the [doctor] voluntarily assumed that obligation by contract.”" }, { "docid": "23567638", "title": "", "text": "(1980). Chapter 145 of the Ohio Revised Code is unequivocal as to its subject matter, the PERS, and it exemplifies a legislative intent that certain employees are public employees for the specific and limited purpose of participating in PERS. Thus, plaintiffs participation in PERS does not make his discharge state action. Finally, plaintiff argues that the dissent in this court’s decision in Adams v. Vandemark, 855 F.2d 312 (6th Cir.1988), cert. denied, 488 U.S. 1042, 109 S.Ct. 868, 102 L.Ed.2d 992 (1989), and the Supreme Court’s decision in West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988), herald a new functional test for determining whether a private entity acts under color of state law. However, even assuming arguendo that the decision in West and the dissent in Vandemark do herald a new functional test for determining whether a private entity acts under color of state law, such a new test would be of no avail to plaintiff. In West, the Court concluded that a physician who is under contract with the state to provide medical services to inmates at a state-prison hospital acts “under color of state law” for section 1983 purposes. West, 487 U.S. at 54, 108 S.Ct. at 2258. The physician had been sued under section 1983 based upon his treatment of an injured inmate. In concluding that the physician was a state actor, the Supreme Court in West stated that the dispositive issue in the case was the relationship between the state, the physician, and the prisoner, and that the physician’s function while working for the state determined whether he was acting under color of state law. West, 487 U.S. at 55-56, 108 S.Ct. at 2258-59. Applying West to this case supports the district court’s finding that defendants were not acting under color of state law when they discharged plaintiff Wolotsky. The physician in West was an independent contractor under contract to the state to provide services to custodial inmates who did not have the opportunity to obtain the services of another physician. Thus, West involves the professional judgment of a physician where" }, { "docid": "5281083", "title": "", "text": "Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir.2003). With this framework in mind, we need not inquire further — at least for § 1983 purposes— into the actions of Meijer or its defendant security guards, Chaney and Youmans, if they are not deemed to have acted “under color of state law,” that is, if they are not deemed to be “state actors.” See also Romanski v. Detroit Entertainment, L.L.C., 428 F.3d 629, 636 (6th Cir.2005) (“Section § 1983 makes liable only those who, while acting under color of state law, deprive another of a right secured by the Constitution or federal law.”). “The Supreme Court has developed three tests for determining the existence of state action in a particular case: (1) the public function test, (2) the state compulsion test, and (3) the symbiotic relationship or nexus test.” Chapman v. Higbee Co., 319 F.3d 825, 833 (6th Cir.2003) (en banc); accord Romanski, 428 F.3d at 636. The district court conducted a thorough analysis of the state-action issue and concluded in this instance that Chaney and Youmans were not state actors under any of the above tests. We decline to rehash the district court’s reasoning on this matter, noting only that Boykin fails to direct us to any authority from this Circuit for the proposition that a private security guard, who merely places a call to police that a suspected shoplifting has occurred, but in no way directly confronts the suspect, can be deemed a state actor for purposes of § 1983. We also note that Boykin has not argued at any point in this litigation that Chaney and Youmans were “private security police officers” pursuant to M.C.L. §§ 338.1079-338.1080. See Ro-manski, 428 F.3d at 638 (distinguishing the common-law shopkeeper’s privilege from the “plenary arrest power enjoyed by private security police officers licensed pursuant to M.C.L. § 338.1079”); accord Durante v. Fairlane Town Center, 201 Fed.Appx. 338, 342 (6th Cir.2006) (unpublished). For these reasons, any of Boy-kin’s § 1983 claims against the Meijer defendants must necessarily fail. B. Boykin’s State-Law Claims 1. Van Burén Township Defendants — a) false arrest;" }, { "docid": "14321038", "title": "", "text": "under 42 U.S.C. § 1983, is so excessive that it does not comport with due process. We consider each claim in turn. II. DISCUSSION A. State Action Section 1983 makes liable only those who, while acting under color of state law, deprive another of a right secured by the Constitution or federal law. 42 U.S.C. § 1983; Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978); Chapman v. Higbee Co., 319 F.3d 825, 833 (6th Cir.2003) (en banc); Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir.1992). A private actor acts under color of state law when its conduct is “fairly attributable to the state.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 947, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). “The Supreme Court has developed three tests for determining the existence of state action in a particular case: (1) the public function test, (2) the state compulsion test, and (3) the symbiotic relationship or nexus test.” Chapman, 319 F.3d at 833 (citing Wolotsky, 960 F.2d at 1335). See West v. Atkins, 487 U.S. 42, 49-50, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (public function); Flagg Bros., 436 U.S. at 157, 98 S.Ct. 1729 (same); Adickes v. S.H. Kress & Co., 398 U.S. 144, 170, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (state compulsion test); Burton v. Wilmington Parking Auth., 365 U.S. 715, 721-26, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) (symbiotic relationship or nexus test). The district court concluded that Brown and any of her colleagues similarly licensed as private security police officers pursuant to M.C.L. § 338.1079 were state actors under the public function test. 265 F.Supp.2d at 841-43. Consistent with this holding, the district court took the state action issue out of the case, granting in effect judgment as a matter of law to Romanski on that issue. Consequently, we review the state action aspect of the district court’s decision de novo and view all facts in the light most favorable to Defendants. United States v. Alpine Indus., Inc., 352 F.3d 1017, 1022 (6th Cir.2003); Vance v. Spencer County Pub." }, { "docid": "20525124", "title": "", "text": "prerogative of the State,’ in that the State is obligated to provide medical service for its inmates and has complete control over the circumstances and sources of a prisoner’s medical treatment.”). It makes no difference that Carl was assessed for psychiatric treatment as opposed to medical care more generally. See Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir.2001). The right to both kinds of care is protected under the Eighth Amendment. True enough, Dr. Jawor did not have a direct employment relationship with Mus-kegon County Jail to provide psychiatric services to detainees. She was, however, under contract with the county, through its agency CMH, to administer services to pretrial detainees held at the Jail. (Contract, R. 238-5, PagelD 3337; Operating Agreement, R. 247-4, PagelD 3612.) Whether Dr. Jawor was employed directly by the state does not control whether she was a state actor-'West eliminates any ambiguity on this point. West, 487 U.S. at 55-56, 108 S.Ct. 2250 (“It is the physician’s function within the state system, not the precise terms of [her] employment, that determines whether [her] actions can fairly be attributed to the State.”). The two cases the district court relied on, Ellison v. Garbarino, 48 F.3d 192 (6th Cir.1995) and Wolotsky v. Huhn, 960 F.2d 1331 (6th Cir.1992), do not govern this case. In Ellison, a private doctor committed a patient under a Tennessee involuntary commitment statute. 48 F.3d at 195. To determine whether the physician’s conduct satisfied the public-function test, the plaintiff had to establish that involuntary commitment is a traditional state function. Id. at 196. Because the plaintiff failed to offer evidence about the “history of involuntary commitment in Tennessee,” the court held that the defendant was not a state actor. Id. There was no state action in Ellison because the doctor was not “contractually bound to the state.” Id. at 197. But West addressed this precise point in stating that an employment relationship does not control whether a private individual acts under color of state law. West, 487 U.S. at 56, 108 S.Ct. 2250. More importantly, the plaintiff in Ellison was not a ward" }, { "docid": "14321039", "title": "", "text": "See West v. Atkins, 487 U.S. 42, 49-50, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988) (public function); Flagg Bros., 436 U.S. at 157, 98 S.Ct. 1729 (same); Adickes v. S.H. Kress & Co., 398 U.S. 144, 170, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (state compulsion test); Burton v. Wilmington Parking Auth., 365 U.S. 715, 721-26, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961) (symbiotic relationship or nexus test). The district court concluded that Brown and any of her colleagues similarly licensed as private security police officers pursuant to M.C.L. § 338.1079 were state actors under the public function test. 265 F.Supp.2d at 841-43. Consistent with this holding, the district court took the state action issue out of the case, granting in effect judgment as a matter of law to Romanski on that issue. Consequently, we review the state action aspect of the district court’s decision de novo and view all facts in the light most favorable to Defendants. United States v. Alpine Indus., Inc., 352 F.3d 1017, 1022 (6th Cir.2003); Vance v. Spencer County Pub. Sch. Dist., 231 F.3d 253, 258 (6th Cir.2000). Under the public function test, a private entity is said to be performing a public function if it is exercising powers traditionally reserved to the state, such as holding elections, taking private property under the eminent domain power, or operating a company-owned town. See Flagg Bros., 436 U.S. at 157-58, 98 S.Ct. 1729 (holding elections); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352-53, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (exercising eminent domain); Marsh v. Alabama, 326 U.S. 501, 505-509, 66 S.Ct. 276, 90 L.Ed. 265 (1946) (operating a company-owned town). The Supreme Court has expressly left open the question whether and under what circumstances private police officers may be said to perform a public function for purposes of § 1983. Flagg Bros., 436 U.S. at 163, 98 S.Ct. 1729. Nevertheless, as the district court ob served, there is a growing body of case law to consult for guidance on this question. For example, in a decision deemed by both parties and the district court to" }, { "docid": "20525123", "title": "", "text": "Johnson v. Karnes, 398 F.3d 868, 876 (6th Cir.2005); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir.1996); Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir.1993) (“It is clear that a private entity which contracts with the state to perform a traditional state function such as providing medical services to prison in-manes may be sued under § 1983 as one acting ‘under color of state law.’ ”); see also Conner v. Donnelly, 42 F.3d 220, 225-26 (4th Cir.1994) (holding that a private doctor who treated an inmate was a state actor although he had no contract with the prison). Applying these standards to the present case, we can fairly attribute Dr. Jawor’s conduct to the state. Dr. Jawor engaged in a public function by evaluating Carl, an individual involuntarily in custody. Attributing Dr. Jawor’s conduct to the state is appropriate because Dr. Jawor performed a function that the state would typically carry out. West, 487 U.S. at 47, 108 S.Ct. 2250 (“[I]n the prison context, medical care is within ‘the exclusive prerogative of the State,’ in that the State is obligated to provide medical service for its inmates and has complete control over the circumstances and sources of a prisoner’s medical treatment.”). It makes no difference that Carl was assessed for psychiatric treatment as opposed to medical care more generally. See Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir.2001). The right to both kinds of care is protected under the Eighth Amendment. True enough, Dr. Jawor did not have a direct employment relationship with Mus-kegon County Jail to provide psychiatric services to detainees. She was, however, under contract with the county, through its agency CMH, to administer services to pretrial detainees held at the Jail. (Contract, R. 238-5, PagelD 3337; Operating Agreement, R. 247-4, PagelD 3612.) Whether Dr. Jawor was employed directly by the state does not control whether she was a state actor-'West eliminates any ambiguity on this point. West, 487 U.S. at 55-56, 108 S.Ct. 2250 (“It is the physician’s function within the state system, not the precise terms of [her] employment, that" }, { "docid": "9441188", "title": "", "text": "of Holly’s incarceration. If Holly’s complaint were in fact that he is being held unlawfully, he would have filed a statutory habeas action under 28 U.S.C. § 2255, not a Bivens claim. Second, Holly reads West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988), to suggest that the provision of medical care to an inmate is always a public function, regardless of what entity operates the correctional facility where he is housed. West cannot bear the weight that Holly would place upon it. There, the Supreme Court held that “a physician employed by North Carolina to provide medical services to state prison inmates[ ] acted under color of state law for purposes of § 1983.” 487 U.S. at 54, 108 S.Ct. 2250; see also Conner v. Donnelly, 42 F.3d 220 (4th Cir.1994) (state action to treat prisoner housed in state-run facility even where physician had no contract with state and provided care outside prison). Even assuming we would consider liability under Bivens coextensive with § 1983 under such circumstances, West instructs that “the dispositive issue” in the state action inquiry “concerns the relationship among the State, the physician, and the prisoner.” West, 487 U.S. at 56, 108 S.Ct. 2250. That relationship is very different in this case, where the correctional facility is privately run, than in West and Conner, where the state itself was directly responsible for managing the prison. See West, 487 U.S. at 43-44, 108 S.Ct. 2250 (noting that the “state-prison hospital” was “operated by the State”); Conner, 42 F.3d at 221 (noting that the question presented concerned “an inmate of a state-run prison”); see also West 487 U.S. at 56 n. 15, 108 S.Ct. 2250 (recognizing that physician’s “delivery of medical care was not unaffected by the fact that the State controlled the circumstances and sources of a prisoner’s medical treatment”). Richardson demonstrates that this distinction between public and private correctional facilities is critical. The state’s responsibilities are necessarily greater when it undertakes direct authority over prisoners’ day-to-day care. We cannot conclude that provision of medical care in a private prison is somehow" }, { "docid": "5281082", "title": "", "text": "city, and therefore is not a proper defendant in a § 1983 lawsuit). In light of these considerations, we affirm the district court’s dismissal of Boy-kin’s § 1983 claims against all Van Burén Township defendants. 2. Meijer Defendants As to defendants Chaney, Youmans, and Meijer, Inc., the district court at first questioned whether, as private persons, they were properly state actors for purposes of § 1983. The district court did not think that these private defendants met any of the tests for private conduct attributable to the state. Yet because the Mei-jer defendants conceded state action, the court proceeded with an analysis of whether they had violated Boykin’s constitutional rights, concluding that they had not. “A § 1983 claim must satisfy two elements: (1) the deprivation of a right secured by the Constitution or laws of the United States and (2) the deprivation was caused by a person acting under color of state law. A plaintiff may not proceed under § 1983 against a private party no matter how discriminatory or wrongful the party’s conduct.” Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir.2003). With this framework in mind, we need not inquire further — at least for § 1983 purposes— into the actions of Meijer or its defendant security guards, Chaney and Youmans, if they are not deemed to have acted “under color of state law,” that is, if they are not deemed to be “state actors.” See also Romanski v. Detroit Entertainment, L.L.C., 428 F.3d 629, 636 (6th Cir.2005) (“Section § 1983 makes liable only those who, while acting under color of state law, deprive another of a right secured by the Constitution or federal law.”). “The Supreme Court has developed three tests for determining the existence of state action in a particular case: (1) the public function test, (2) the state compulsion test, and (3) the symbiotic relationship or nexus test.” Chapman v. Higbee Co., 319 F.3d 825, 833 (6th Cir.2003) (en banc); accord Romanski, 428 F.3d at 636. The district court conducted a thorough analysis of the state-action issue and concluded in this instance that Chaney" }, { "docid": "20525125", "title": "", "text": "determines whether [her] actions can fairly be attributed to the State.”). The two cases the district court relied on, Ellison v. Garbarino, 48 F.3d 192 (6th Cir.1995) and Wolotsky v. Huhn, 960 F.2d 1331 (6th Cir.1992), do not govern this case. In Ellison, a private doctor committed a patient under a Tennessee involuntary commitment statute. 48 F.3d at 195. To determine whether the physician’s conduct satisfied the public-function test, the plaintiff had to establish that involuntary commitment is a traditional state function. Id. at 196. Because the plaintiff failed to offer evidence about the “history of involuntary commitment in Tennessee,” the court held that the defendant was not a state actor. Id. There was no state action in Ellison because the doctor was not “contractually bound to the state.” Id. at 197. But West addressed this precise point in stating that an employment relationship does not control whether a private individual acts under color of state law. West, 487 U.S. at 56, 108 S.Ct. 2250. More importantly, the plaintiff in Ellison was not a ward of the state. Ellison, 48 F.3d at 194. This distinction is key. Because Ellison did not arise in the context of providing mental health care to those in the state’s custody, the district court should not have relied on that case. Wolotsky is similarly distinguishable. The plaintiff in that case worked for a private company that provided mental health services for the county. 960 F.2d at 1333. After the plaintiff was discharged from his employment without a hearing, he sued his employer under § 1983. Id. at 1334. The employer’s action did not constitute state action because “providing mental health services has not been a power which has traditionally been exclusively reserved to the state.” Id. at 1335. The district court, attracted by this seemingly applicable language, concluded that Dr. Ja-wor was not a state actor. But context matters. Because Wolotsky did not arise in a custodial setting, it does not apply where, as here, the state has absolute dominion over a detainee’s care. Providing medical care to prison inmates and pretrial detainees is indeed" }, { "docid": "22902920", "title": "", "text": "state law” in that they were performing the “traditional state function” of operating a prison. See Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir.1993) (“It is clear that a private entity which contracts with the state to perform a traditional state function such as providing medical services to prison inmates may be sued under § 1983 as one acting ‘under color of state law.’ ”). B. “A prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, -, 114 S.Ct. 1970, 1974, 128 L.Ed.2d 811 (1994) (citations omitted). Prison officials can be held liable for an Eighth Amendment violation when an inmate shows: (1) “that he is incarcerated under conditions posing a substantial risk of serious harm,” and (2) that the prison official had “the state of mind ... of ‘deliberate indifference’ to inmate health or safety.” Farmer, 511 U.S. at -, 114 S. Ct. at 1977 (citations omitted). “[A]cting or failing to act with deliberate indifference to a substantial risk of serious harm to a .prisoner, is the equivalent of recklessly disregarding that risk.” Id. at -, 114 S.Ct. at 1978. Prior to the Supreme Court’s decision in Farmer, this court noted, “Failure to segregate violent inmates from non-violent inmates has been held to constitute ‘deliberate indifference’ and thus to violate the eighth amendment where there is a ‘pervasive’ risk of harm or where the victim belonged to an ‘identifiable’ group of prisoners 'for whom risk of assault is a serious problem of substantial dimension.” Marsh v. Arn, 937 F.2d 1056, 1061 (6th Cir.1991) (citing Walsh v. Mellas, 837 F.2d 789, 793-94 (7th Cir.), cert. denied, 486 U.S. 1061, 108 S.Ct. 2832, 100 L.Ed.2d 933 (1988); Martin v. White, 742 F.2d 469, 474-75 (8th Cir.1984)). In Marsh, this court also noted the Fourth Circuit’s holding that the failure to segregate an inmate with violent propensities is negligence, not deliberate indifference to a risk of harm to the plaintiff inmate. 937 F.2d at 1062 (citing Ruefly v. Landon, 825 F.2d 792, 794 (4th Cir.1987)). The" }, { "docid": "16099676", "title": "", "text": "not constitute state action); White v. Scrivner Corp., 594 F.2d 140, 142-43 (5th Cir.1979) (holding that detaining suspected shoplifter is not an exclusive state function). In fact, as Wade’s counsel conceded at oral argument, Byles possessed powers no greater than those of armed security guards who are commonly employed by private companies to protect private property. We therefore find that Byles’ function as a lobby security guard with the aforementioned limited powers is not traditionally the exclusive prerogative of the state. The fact that Byles performed his duties on public property, or for the public’s benefit, does not make him a state actor. See Rendell-Baker, 457 U.S. at 842, 102 S.Ct. at 2772; Gallagher v. “Neil Young Freedom Concert”, 49 F.3d 1442, 1457 (10th Cir.1995) (finding that providing security at building leased from government was not exclusive state function). Moreover, CHA’s employment of in-house armed security guards with lobby duties identical to those of the contract security guards does not change our conclusion, as this fact does not demonstrate that Byles performed an exclusive state function. Plaintiffs reliance on West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988), is also misplaced. In West the Supreme Court concluded that a private physician under contract with the state to provide medical care to prisoners was a state actor. Under state law the only medical care that the inmates could receive was that provided through the state. West, 487 U.S. at 55, 108 S.Ct. at 2258-59. In reaching its conclusion, the Court reasoned that “Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State’s prisoners of the means to vindicate their Eighth Amendment rights.” West, 487 U.S. at 56, 108 S.Ct. at 2259. This language in West indicates that a state cannot limit its accountability for the performance of functions that it has an affirmative constitutional obligation to provide. In this case, however, CHA bore no affirmative constitutional duty to provide security in the lobbies of CHA buildings." }, { "docid": "20525119", "title": "", "text": "Cnty. of Oakland, 703 F.3d 918, 923 (6th Cir.2013). Summary judgment is required where “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 plaintiff suing under § 1983 must establish that he was denied a constitutional right, and that the deprivation was caused by a defendant acting under color of state law. Jones v. Duncan, 840 F.2d 359, 361-62 (6th Cir.1988). The Eighth Amendment protects prisoners from cruel and unusual punishment, and pretrial detainees are similarly protected under the Due Process Clause of the Fourteenth Amendment. Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 539 (6th Cir.2008). The only issue before the court is whether Dr. Jawor, a private psychiatrist, acted under color of state law. Private individuals may be considered state actors if they exercise power “possessed by virtue of state law” and if they are “clothed- with the authority of state law.” United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). The question turns on whether the private individual’s actions can be fairly attributed to the state. Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Our court has identified three tests to resolve the state-actor inquiry: the public-function test, the state-compulsion test, and the nexus test. Ellison v. Garbarino, 48 F.3d 192, 195 (6th Cir.1995). The parties agree that this case implicates the public-function test, which “requires that the private [individual] exercise powers which are traditionally exclusively reserved to the state.” Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir.1992). The Sixth Circuit has interpreted this test narrowly; rarely have we attributed private conduct to the state. Chapman v. Higbee Co., 319 F.3d 825, 833-34 (6th Cir.2003). Nevertheless, Carl argues that Dr. Jawor is a state actor under the public-function test and that West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988), supports his position. We agree. We start from the basic premise that states must provide medical care to those in custody." }, { "docid": "20525122", "title": "", "text": "Id. at 56, 108 S.Ct. 2250. Although the physician in West had a contractual obligation to treat inmates, the Court made two points clear: first, an employment relationship with the state is not dispositive of the state-actor inquiry. Id. Second, the amount of time a physician expends exercising his duties does not resolve the state-actor question either. Id. Rather, “[i]t is the physician’s function ... that determines whether he is acting under color of state law.” Id. Courts discern this function by focusing on “the relationship among the State, the physician and the prisoner.” Id. A state may not-escape § 1983 liability by contracting out or delegating its obligation to provide medical care to inmates. Id. at 56 n. 14, 108 S.Ct. 2250; cf. Estelle, 429 U.S. at 103, 97 S.Ct. 285 (“An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met.”). Indeed, our court has held that “private physicians serving inmate populations satisfy the state-action requirement of [§ 1983].” Johnson v. Karnes, 398 F.3d 868, 876 (6th Cir.2005); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir.1996); Hicks v. Frey, 992 F.2d 1450, 1458 (6th Cir.1993) (“It is clear that a private entity which contracts with the state to perform a traditional state function such as providing medical services to prison in-manes may be sued under § 1983 as one acting ‘under color of state law.’ ”); see also Conner v. Donnelly, 42 F.3d 220, 225-26 (4th Cir.1994) (holding that a private doctor who treated an inmate was a state actor although he had no contract with the prison). Applying these standards to the present case, we can fairly attribute Dr. Jawor’s conduct to the state. Dr. Jawor engaged in a public function by evaluating Carl, an individual involuntarily in custody. Attributing Dr. Jawor’s conduct to the state is appropriate because Dr. Jawor performed a function that the state would typically carry out. West, 487 U.S. at 47, 108 S.Ct. 2250 (“[I]n the prison context, medical care is within ‘the exclusive" } ]

[ { "docid": "15202464", "title": "", "text": "as to former Parker Pen employees. Providing estimates of benefits is not a fiduciary function, nor is hiring someone to provide such estimates purely for plan members’ use. With no fiduciary function involved, there can be no breach of fiduciary duty. We turn briefly to the estoppel theory. Most of our sister circuits have recognized estoppel claims under ERISA’s civil enforcement provisions. See, e.g., Hooven v. Exxon Mobil Corp., 465 F.3d 566, 578 (3d Cir.2006); Mello v. Sara Lee Corp., 431 F.3d 440, 444 (5th Cir.2005); Devlin v. Empire Blue Cross & Blue Shield, 274 F.3d 76, 85-86 (2d Cir.2001); Bowerman, 226 F.3d at 586; Sprague v. Gen. Motors Corp., 133 F.3d 388, 403 & n. 13 (6th Cir.1998) (en banc); Greany v. W. Farm Bureau Life Ins. Co., 973 F.2d 812, 821 (9th Cir.1992); Kane v. Aetna Life Ins., 893 F.2d 1283, 1285 (11th Cir.1990). We have previously found it unnecessary to decide whether we will follow suit. See Todisco v. Verizon Commc’ns, Inc., 497 F.3d 95, 99 n. 4 (1st Cir.2007); Mauser v. Raytheon Co. Pension Plan, 239 F.3d 51, 57 (1st Cir.2001); City of Hope Nat’l Med. Ctr. v. HealthPlus, Inc., 156 F.3d 223, 230 n. 9 (1st Cir.1998); Law v. Ernst & Young, 956 F.2d 364, 370 n. 9 (1st Cir.1992). This case likewise does not provide suitable facts to present the issue to us. ERISA plans must be in writing j j. t_ j-í- j n 7 o on and cannot be modified orally. See 29 U.S.C. § 1102(a)(1); Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 83, 115 S.Ct. 1223, 131 L.Ed.2d 94 (1995); accord, e.g., Bowerman, 226 F.3d at 586; Sprague, 133 F.3d at 402-03. As we have previously explained, a plan beneficiary might reasonably rely on an informal statement interpreting an ambiquous plan provision; if the provision is clear, however, an informal statement m conflict with it is m effect purporting to modify the plan term, rendering any reliance on it inherently unreasonable. See Law, 956 F.2d at 370 (discussing same distinction drawn in Kane, 893 F.2d at 1285); see also Todisco, 497" } ]

[ { "docid": "1644909", "title": "", "text": "common law in fashioning federal common law for ERISA claims. Singer v. Black & Decker Corp., 964 F.2d 1449, 1452 (4th Cir.1992). “Courts must be conscientious to fashion federal common law only when it is ‘necessary to effectuate the purposes of ERISA.’ ” Id. (quoting Provident Life & Accident Ins. Co. v. Waller, 906 F.2d 985, 992 (4th Cir.1990)). One of the purposes of ERISA is “to promote the interests of employees and their beneficiaries in employee benefit plans.” Shaw v. Delta Air Lines, 463 U.S. 85, 90, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Although A.S.G. concedes that federal common law may be applied in certain circumstances when considering ERISA claims, A.S.G. asserts that “the subject of equitable estoppel is not one of those circumstances.” Reply to June C. LeBeau’s Resp. to Mot. of A.S.G., Inc. to Dismiss Am. Compl., at 1-2. A.S.G. is incorrect in its categorical assertion. Multiple federal courts of appeals have determined that, in some circumstances, equitable estoppel principles are applicable in fashioning federal common law for ERISA claims. See e.g., Greany v. Western Farm Bureau Life Ins. Co., 973 F.2d 812, 821 (9th Cir.1992) (recognizing that federal equitable estop-pel principles can, in certain circumstances, apply to claims arising under ERISA); Armistead v. Vernitron Corp., 944 F.2d 1287, 1298 (6th Cir.1991) (same); Kane v. Aetna Life Ins., 893 F.2d 1283, 1285-86 (11th Cir.), cert. denied, 498 U.S. 890, 111 S.Ct. 232, 112 L.Ed.2d 192 (1990) (same). The Fourth Circuit has held that estop-pel principles cannot be invoked in fashioning federal common law governing ERISA claims, when to do so would modify or alter a term of a written employee benefit plan. Coleman v. Nationwide Life Ins. Co., 969 F.2d 54, 58 (4th Cir.1992). The reason for such a disavowal of estoppel principles is to avoid creating a conflict between the federal common law and ERISA’s preference for written agreements. Id. In Coleman, the court clearly stated that oral or informal written modifications to a plan are not enforceable to vary the written terms of an agreement and to hold an insurer liable under an equitable" }, { "docid": "2820249", "title": "", "text": "relate to any employee benefit plan” covered by the statute. 29 U.S.C. § 1144(a). The Supreme Court has held that “the express pre-emption provisions of ERISA are deliberately expansive, and designed to ‘establish pension plan regulation as exclusively a federal concern.’ ” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45-46, 107 S.Ct. 1549, 1552, 95 L.Ed.2d 39 (1987) (quoting Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523, 101 S.Ct. 1895, 1906, 68 L.Ed.2d 402 (1981)). In Shaw v. Delta Air Lines Inc., the Court clarified the meaning of the “relates to” language of the statute by stating that a “law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.” 463 U.S. 85, 96-97, 103 S.Ct. 2890, 2900, 77 L.Ed.2d 490 (1983); see also Rodriguez v. Pacificare of Tex., Inc., 980 F.2d 1014, 1017 (5th Cir.) cert. denied, — U.S. -, 113 S.Ct. 2456, 124 L.Ed.2d 671 (1993). ERISA will be found to preempt a related state law even where the state law is not specifically intended to regulate ERISA covered plans. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 111 S.Ct. 478, 483, 112 L.Ed.2d 474 (1990). Without exception, courts have held that ERISA preempts the application of state law under the circumstances of this ease. Facing a situation similar to the one under consideration here, the Sixth Circuit held that the “designation of beneficiaries plainly relates to these ERISA plans, and we see no reason to apply state law on this issue.” McMillan v. Parrott, 913 F.2d 310, 311 (6th Cir.1990); see also Brown v. Connecticut General Life Ins. Co., 934 F.2d 1193, 1195 (11th Cir.1991) (citing McMillan for the proposition that “[t]he determination of the beneficiary of the proceeds of an insurance policy plainly relates to an employee benefit plan”). The Second, Seventh, and Eighth Circuits have all made similar decisions finding that the designation of beneficiaries is well within the area of state.law preempted by ERISA. Krishna v. Colgate Palmolive Co., 7 F.3d 11, 15 (2nd Cir.1993); MacLean v. Ford" }, { "docid": "10633375", "title": "", "text": "an ERISA plan is first governed by the plain meaning of the language of the contract. Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286, 292 (5th Cir.1998). Only when the plan terms remain ambiguous after applying ordinary principles of contract interpretation does this court apply the rule of contra profer-entum and construe the terms strictly in favor of the insured. Wegner v. Standard Ins. Co., 129 F.3d 814, 818 (5th Cir.1997). High’s case, however, does not warrant the application of this rule; the language of neither the E-Systems Plan nor the Ray-theon Plan is ambiguous and, as E-Systems suggests, by giving MetLife complete discretion to interpret the plans, if there had been an ambiguity, MetLife was empowered to resolve it, exercising “interpretive discretion.” MacLachlan, 350 F.3d at 482. Therefore, because the plans clearly state that discretion is given to the plan administrator to carry out and interpret the plan, we affirm the district court’s grant of summary judgment as to this issue. B. Whether ERISA-Estoppel or Waiver Applies 1. Standard of Review “Because the application of ERISA-estoppel is a legal theory rather than an interpretation of the Plan’s terms, it should be reviewed de novo.” Mello v. Sara Lee Corp., 431 F.3d 440, 444 (5th Cir.2005); see Rhorer v. Raytheon Eng’rs & Const’rs, Inc., 181 F.3d 634, 639 (5th Cir.1999). 2. Analysis In late 2005, this court in Mello joined “other circuits in explicitly adopting ERISA-estoppel as a cognizable theory. To establish an ERISA-estoppel claim, the plaintiff must establish: (1) a material misrepresentation; (2) reasonable and detrimental reliance upon the representation; and (3) extraordinary circumstances.” Mello, 431 F.3d at 444-15. In Mello, a disagreement arose between Frank Mello and his employer, Sara Lee, who acquired Mello’s original employer, Bil Mar Foods, over whether Mello’s pension benefits should be calculated using a hire date of September 17, 1984, (the date Mello began working for Bil Mar Foods) or October 31, 1994 (the date Mello and other Bil Mar Foods executives were allowed to enter the Sara Lee pension plan.) If the former date was used, Mello would receive $6,500 each" }, { "docid": "21622762", "title": "", "text": "with or reference to such a plan.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Accordingly, the Fourth Circuit has’ held that when a plaintiffs state law claims “amount to a demand for past ... health care benefits from an ERISA plan,” those state law claims are preempted. Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 418 (4th Cir.1993); see also Stiltner v. Beretta U.S.A. Corp., 74 F.3d 1473, 1480 (4th Cir.1996) (en banc) (suggesting in dicta that the plaintiffs state law claims were preempted because he sought “to recover benefits of a sort which are already provided by an ERISA plan”). Although broad and far-reaching, ERISA’s preemptive power is not without limits. A state law claim is not preempted by ERISA merely because the claim makes some incidental reference to an ERISA plan. Some state law claims affect employee benefit plans in “too tenuous, remote, or peripheral a manner” to be preempted as “related to” an ERISA plan. Shaw, 463 U.S. at 100 n. 21, 103 S.Ct. 2890. Although a substantial number of decisions have attempted to clarify the distinction between claims which “relate to” an ERISA plan and those which are incidental to an ERISA plan, the court will specifically address three such decisions, two of which were extensively discussed by plaintiff in her brief in opposition. In Pizlo v. Bethlehem Steel Corporation, cited and discussed by.plaintiff, the Fourth Circuit held that under the circumstances presented, state law claims for breach of contract, promissory estoppel, and negligent misrepresentation were not preempted by ERISA. 884 F.2d 116, 120 (4th Cir.1989). Pizlo concerned whether former Bethlehem Steel employees were wrongfully terminated from employment after an alleged oral contract of employment for a term. Id. Although the damages claimed included lost health and pension benefits, these issues were incidental to the alleged unlawful termination, and insufficient to preempt claims which were at essence unrelated to an ERISA plan. Similarly, in Hand v. Church & Dwight Company, the court sought to distinguish between state law claims which are and are not" }, { "docid": "14031352", "title": "", "text": "Common Law Estoppel Claim Defendant next argues that Count I of Plaintiffs complaint, which sounds in common law estoppel, is pre-empted by ERISA. ERISA pre-empts state law claims that “relate to” any employee benefit plan covered under ERISA. 29 U.S.C. § 1144(a); Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 45, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). The United States Supreme Court has noted that “the express preemption provisions of ERISA are deliberately expansive, and designed to ‘establish pension plan regulation as exclusively a federal concern.’ ” Pilot Life, 481 U.S. at 45-46, 107 S.Ct. 1549 (quoting Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523, 101 S.Ct. 1895, 68 L.Ed.2d 402 (1981)). Given the pre-emption clause’s broad scope, the Supreme Court has stated that a state law “relates to” a benefit plan “if it has a connection with or reference to such a plan.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) (citations omitted). According to Tenth Circuit jurisprudence, state common law claims based on the doctrine of promissory estoppel “relate to” a benefit plan and are, therefore, pre-empted by ERISA. See Peckham v. Gem State Mut. of Utah, 964 F.2d 1043, 1050-51 (10th Cir.1992); see also Kaus v. Standard Life Ins. Co., 176 F.Supp.2d 1193, 1198 (D.Kan.2001) (citations omitted) (concluding that the plaintiffs state law estoppel claim was pre-empted by ERISA). In light of this precedent, the court concludes that Plaintiffs state law estoppel claim is pre-empted by ERISA. The court is not persuaded by Plaintiffs argument that if, as Defendant claims, Mr. Swearingen was not a Bendix Plan participant, then Plaintiffs estoppel claim would not “relate to” the Plan but would merely be a common law claim against a Defendant that “coincidentally” had an ERISAcovered plan. To the contrary, the court finds that Plaintiffs estoppel claim relates directly to her efforts to secure payments under the Bendix Plan and is, therefore, pre-empted. For this reason, the court grants Defendant’s motion to dismiss Count I of Plaintiffs complaint. C. ERISA Estoppel Claim Defendant also contends that Count II" }, { "docid": "14871677", "title": "", "text": "Benefits Clause is indeed “tied to the Plan’s age based reduction formula.” Aplt. Br. 15. Finally, Plaintiffs argue that the district court erred by “failing] to give specific terms greater weight than general language.” Id. at 17. Again, that is simply not the case. Both the Minimum Benefits Clause and the Reservation of Rights Clause speak with roughly equivalent specificity. Compare 3 Aplt.App. 624-25 with 4 Aplt.App. 638. Therefore, we doubt that this principle of contractual interpretation is applicable here. Additionally, Plaintiffs’ cited principle of interpretation is helpful only where the specific and general language conflict. See, e.g., Rosillo-Puga v. Holder, 580 F.3d 1147, 1160 (10th Cir. 2009); Shawnee Tribe v. United States, 423 F.3d 1204, 1213 (10th Cir.2005). In this case, the clauses do not conflict — the Minimum Benefits Clause limits reductions under the Reduction Formula, while the Reservation of Rights Clause governs the Plan Documents as a whole. We therefore affirm the district court’s dismissal of Claim 1 of the AC. B. ERISA Equitable Estoppel: Claim 1 of the AC. ERISA preempts state law causes of action, including state law promissory estoppel claims. See Averhart v. U.S. WEST Mgmt. Pension Plan, 46 F.3d 1480, 1485 (10th Cir.1994). While some other circuits have created a federal common-law cause of action premised on equitable estoppel in the ERISA context, see, e.g., Pell v. E.I. DuPont de Nemours & Co., 539 F.3d 292, 300 (3d Cir.2008), we have yet to recognize such a claim. Callery v. U.S. Life Ins. Co., 392 F.3d 401, 407 (10th Cir. 2004). We have left open the possibility that an ERISA estoppel claim might be viable in “egregious cases,” such as where the employer lied, engaged in fraud, or intended to deceive the participants, id. at 407-08, or where the claim was premised on the employer’s interpretation of an ambiguous provision in the plan, Averhart, 46 F.3d at 1486. In this case we need not determine whether to adopt an estoppel claim in the ERISA context. Plaintiffs do not allege circumstances such as lies, fraud, or intent to deceive. See 1 ApltApp. 57-59. Further, as" }, { "docid": "4063983", "title": "", "text": "of such plans.” Mello v. Sara Lee Corp., 431 F.3d 440, 444 (5th Cir.2005) (citing Shaw v. Delta Air Lines Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)). Because we construe Bloemker’s complaint as stating claims under the statutory and federal common law of ERSIA, even though his contract, misrepresentation, and estoppel claims are similar to some state law claims, they are not preempted. . The First Circuit has not yet determined whether it will \"recognize[] estoppel claims under ERISA’s civil enforcement provisions.” Livick v. Gillette Co., 524 F.3d 24, 30-31 (1st Cir.2008). The Fourth Circuit considers waiver and estoppel to be \"prohibited concepts” with respect to ERISA. Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d 230, 239 (4th Cir.2008). The Eighth Circuit applies the doctrine of estoppel to ERISA cases, Fink v. Union Cent. Life Ins. Co., 94 F.3d 489, 492 (8th Cir. 1996), but we find no case from the Eighth Circuit applying, or refusing to apply, ERISA estoppel to a pension claim. The Tenth Circuit has not recognized equitable estoppel in the context of ERISA, though it has suggested that it might do so in an egregious case. Cattery v. U.S. Life Ins. Co. in N.Y., 392 F.3d 401, 407-08 (10th Cir.2004). The Eleventh Circuit has applied (in an unpublished case) its ERISA estoppel rules to a pension claim. Schena v. Metro. Life Ret. Plan for U.S. Employees, 244 Fed.Appx. 281, 285 (11th Cir.2007). Uniquely, the Eleventh Circuit does not apply either a written representation or an extraordinary circumstances requirement, but it employs a comparatively rigid ambiguity requirement. See id. We find no cases from the District of Columbia Circuit discussing the applicability of estoppel to ERISA actions. We find no circuit that has recognized estoppel claims under ERISA but held those claims categorically inapplicable to pension benefits. However, many of our sister circuits would reject the claim at issue here on grounds other than the fact that it is a pension claim, including some circuits' apparently strict rules requiring ambiguity. . We did not impose in Armistead the written representation requirement" }, { "docid": "5334556", "title": "", "text": "Cantor v. Berkshire Life Ins. Co., 171 Ohio St. 405, 171 N.E.2d 518, 522 (1960) (finding that employee’s rights in pre-ERISA retirement plan became vested once the employee had complied with conditions entitling him to participate in plan even where employer had reserved right to amend or terminate the plan); Restatement (Second) of Contracts § 90 (“A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promissee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.”). I agree with my colleagues, however, that ERISA requires us to treat any state law claim as preempted. The unused sick leave of the non-union employees here was not treated as a regular payroll practice that could be exempt from ERISA under Massachusetts v. Morash, 490 U.S. 107, 109 S.Ct. 1668, 104 L.Ed.2d 98 (1989), but was instead used to pay for retiree health insurance, an employee welfare benefit plan under ERISA. The unused sick leave could benefit employees only if they stayed at CUNA Mutual until retirement, and the unused sick leave was never available to the non-union employees in the form of cash. In light of ERISA preemption, the controlling issue here is whether ERISA defeats such a theory of promissory estoppel under federal law. It is worth recalling here that ERISA was enacted to protect employees from employers who mismanaged or even looted funds set aside to provide employee benefits — both pension plans and welfare plans. See, e.g., Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Promissory estoppel is part of the common law we apply in interpreting ERISA. E.g., Miller v. Taylor Insulation Co., 39 F.3d 755, 758-59 (7th Cir.1994). Yet in this case, the company is using ERISA as a shield to deny these employees any remedy for the broken $121 million promise. At least with respect to dismissal of claims based on cancellation of the unused sick leave credits, this result is not mandated" }, { "docid": "5826509", "title": "", "text": "issued a check to the Estate of Hector Arocho in the amount of $36.00 with an attached statement indicating it was a refund of life insurance premium. PREEMPTION The defendants seek summary judgment arguing that the plaintiff brings state-law claims for breach of contract, waiver and estoppel, and breach of fiduciary duty and that these claims are preempted by the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq. In response, the plaintiff essentially concedes any state law claims would be preempted by ERISA, but she maintains her complaint still alleges appropriate ERISA claims. Specifically, the plaintiff couches her claims in federal terms as a claim for breach of contractual rights under the employee benefit plan, a claim of waiver and estoppel under federal common law, and a claim for breach of fiduciary obligations under the plan. In reply, the defendants contest that the plaintiff has ever pleaded an ERISA claim and oppose giving the plaintiff an opportunity now to amend her complaint to assert one. Through its preemption clause, 29 U.S.C. § 1144(a), ERISA preempts all state laws insofar as they “relate to any employee benefits plan.” See Dang v. UNUM Life Ins. Co. of America, 175 F.3d 1186, 1190 (10th Cir.1999). ‘“A law relates to an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.’ ” Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)). “A common law cause of action which ‘relates to’ ERISA is preempted unless it falls within one of the exceptions to § 514(a) [29 U.S.C. § 1144(a) ].” Cannon v. Group Health Service of Oklahoma, Inc., 77 F.3d 1270, 1273 (10th Cir.), cert. denied, 519 U.S. 816, 117 S.Ct. 66, 136 L.Ed.2d 27 (1996). “State law contract claims are preempted ‘if the factual basis of the cause of action involves an employee benefit plan.’ ” Caldwell v. Western Atlas Intern., 871" }, { "docid": "4063984", "title": "", "text": "recognized equitable estoppel in the context of ERISA, though it has suggested that it might do so in an egregious case. Cattery v. U.S. Life Ins. Co. in N.Y., 392 F.3d 401, 407-08 (10th Cir.2004). The Eleventh Circuit has applied (in an unpublished case) its ERISA estoppel rules to a pension claim. Schena v. Metro. Life Ret. Plan for U.S. Employees, 244 Fed.Appx. 281, 285 (11th Cir.2007). Uniquely, the Eleventh Circuit does not apply either a written representation or an extraordinary circumstances requirement, but it employs a comparatively rigid ambiguity requirement. See id. We find no cases from the District of Columbia Circuit discussing the applicability of estoppel to ERISA actions. We find no circuit that has recognized estoppel claims under ERISA but held those claims categorically inapplicable to pension benefits. However, many of our sister circuits would reject the claim at issue here on grounds other than the fact that it is a pension claim, including some circuits' apparently strict rules requiring ambiguity. . We did not impose in Armistead the written representation requirement that we impose in this case because Armistead involved a welfare rather than a pension benefit. See 944 F.2d at 1299-1300. ROBERT HOLMES BELL, District Judge, dissenting. I agree with the desirability of a rule that permits an equitable estoppel claim to vary ERISA pension plan provisions which, although unambiguous, do not allow for individual calculation of benefits. Nevertheless, it appears that any rule that permits an equitable estoppel claim to vary ERISA pension plan provisions that are unambiguous conflicts with the rule announced in Sprague v. General Motors Co., 133 F.3d 388 (6th Cir.1998) (en banc), that estoppel cannot be applied to vary the terms of unambiguous provisions. Id. at 404. Accordingly, until Sprague is over turned by an en banc panel of this Court or the United States Supreme Court, I believe we are required to affirm the dismissal of Bloemker’s equitable estoppel claim. United States v. Simpson, 520 F.3d 531, 540-41 (6th Cir.2008) (quoting Darrah v. City of Oak Park, 255 F.3d 301, 309 (6th Cir.2001)); 6th Cir. R. 206(c)." }, { "docid": "5826510", "title": "", "text": "29 U.S.C. § 1144(a), ERISA preempts all state laws insofar as they “relate to any employee benefits plan.” See Dang v. UNUM Life Ins. Co. of America, 175 F.3d 1186, 1190 (10th Cir.1999). ‘“A law relates to an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.’ ” Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990) (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)). “A common law cause of action which ‘relates to’ ERISA is preempted unless it falls within one of the exceptions to § 514(a) [29 U.S.C. § 1144(a) ].” Cannon v. Group Health Service of Oklahoma, Inc., 77 F.3d 1270, 1273 (10th Cir.), cert. denied, 519 U.S. 816, 117 S.Ct. 66, 136 L.Ed.2d 27 (1996). “State law contract claims are preempted ‘if the factual basis of the cause of action involves an employee benefit plan.’ ” Caldwell v. Western Atlas Intern., 871 F.Supp. 1392, 1395 (D.Kan.1994) (quoting Kelso v. General Am. Life Ins. Co., 967 F.2d 388, 390 (10th Cir.1992)). “State common law claims based on the doctrine of estoppel by conduct ‘relate to’ a benefit plan,” and they “are therefore preempted by ERISA.” Peckham v. Gem State Mut. of Utah, 964 F.2d 1043, 1051 (10th Cir.1992). A breach of fiduciary duty claim is the type of claim that courts consistently have found preempted by ERISA. Cannon, 77 F.3d at 1273. In light of the above authority and the plaintiffs concession, the court finds that to the extent alleged in her amended complaint the plaintiffs state law claims are preempted by ERISA. The procedural dispute remaining is whether the complaint should be dismissed, whether the plaintiffs complaint should be construed to allege proper actions under ERISA, or whether the plaintiff should be allowed leave to amend her complaint. The defendants removed this action asserting ERISA governed the life insurance policy under which the plaintiff sought recovery. (Dk.l). The plaintiff subsequently filed an amended complaint laying out three" }, { "docid": "1644908", "title": "", "text": "have known LeBeau would reasonably and detrimentally rely upon these misrepresentations, and that LeBeau did in fact rely upon them and suffer damages as a direct and proximate result of such reliance. The parties agree the health plan at issue is an ERISA-regulated plan. When Congress enacted ERISA, it created a federal statutory scheme to govern employee benefit plans. Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). However, Congress intended courts to fill in the statute’s gaps by developing a federal common law of rights and obligations under ERISA-regu-lated plans. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). The Supreme Court and the Fourth Circuit have authorized federal courts to develop this federal common law when ERISA fails to address an issue and the state law governing that issue has been preempted. Phoenix Mut. Life Ins. Co. v. Adams, 30 F.3d 554, 560 (4th Cir.1994). Although ERISA broadly preempts state laws, courts may look to state common law in fashioning federal common law for ERISA claims. Singer v. Black & Decker Corp., 964 F.2d 1449, 1452 (4th Cir.1992). “Courts must be conscientious to fashion federal common law only when it is ‘necessary to effectuate the purposes of ERISA.’ ” Id. (quoting Provident Life & Accident Ins. Co. v. Waller, 906 F.2d 985, 992 (4th Cir.1990)). One of the purposes of ERISA is “to promote the interests of employees and their beneficiaries in employee benefit plans.” Shaw v. Delta Air Lines, 463 U.S. 85, 90, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). Although A.S.G. concedes that federal common law may be applied in certain circumstances when considering ERISA claims, A.S.G. asserts that “the subject of equitable estoppel is not one of those circumstances.” Reply to June C. LeBeau’s Resp. to Mot. of A.S.G., Inc. to Dismiss Am. Compl., at 1-2. A.S.G. is incorrect in its categorical assertion. Multiple federal courts of appeals have determined that, in some circumstances, equitable estoppel principles are applicable in fashioning federal common law for ERISA claims. See" }, { "docid": "22447459", "title": "", "text": "Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983); Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 510, 101 S.Ct. 1895, 1899, 68 L.Ed.2d 402 (1981). ERISA explicitly preempts state laws to the extent that they relate to employee benefits not exempt from federal regulation. 29 U.S.C. § 1144 provides in pertinent part: (a) Except as provided in subsection (b) of this section, the provisions of this sub-chapter and subchapter III of this chapter shall supersede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. (c) For purposes of this section: (1) The term “State law” includes all laws, decisions, rules, regulations, or other State action having the effect of law, of any State. The ERISA preemptive provision is to be broadly construed. Alessi, 451 U.S. at 522-25, 101 S.Ct. at 1905-07. “A law ‘relates to’ an employee benefit plan, in the normal sense of the phrase, if it has a connection with or reference to such a plan.” Shaw, 463 U.S. at 96-97, 103 S.Ct. at 2900. Thus ERISA preempts state laws which either directly or indirectly relate to an employee benefit plan. Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1215 (8th Cir.1981), cert. denied, 454 U.S. 1084, 102 S.Ct. 641, 70 L.Ed.2d 619 (1981). The Ninth Circuit has held that ERISA preempts common law theories of breach of contract implied in fact, promissory estoppel, estoppel by conduct, fraud and deceit, and breach of contract. Blau v. Del Monte Corp., 748 F.2d 1348, 1356-57 (9th Cir.1984). Those state laws authorizing causes of action for the improper handling of claims under benefit plans have been held to be directly connected with the employee benefit plan and thus preempted by ERISA. Russell v. Massachusetts Mut. Life Ins. Co., 722 F.2d 482, 487-88 (9th Cir.1983). Ellenburg’s state claim for breach of implied covenant of good faith and fair dealing is brought against Brockway and Cunningham in their capacity" }, { "docid": "4063982", "title": "", "text": "Bloemker did not purport to be an amendment or a modification to the Plan. Nor did it purport to create a separate contract for benefits in addition to those provided by the Plan. Instead, it simply claimed to provide the actuarially certified benefit Bloemker was entitled to, based on the Plan. Accordingly, the district court was correct to conclude that Bloemker cannot recover benefits under § 1132 of ERISA based on a modification of the Plan or a separate supplemental contract. AFFIRMED IN PART, REVERSED IN PART, and REMANDED for further proceedings consistent with this -opinion. DISSENT . Richard is married to Lynn Bloemker, and under the Plan she is entitled to benefits as his spouse. Both Richard and Lynn are plaintiffs in this action, and all claims and arguments asserted by Mr. Bloemker are also asserted by his wife. Nevertheless, the singular form of Bloemker is used here. . \"ERISA preempts state laws that 'relate to' an employee benefit plan because Congress was concerned that state laws might interfere with the administration and management of such plans.” Mello v. Sara Lee Corp., 431 F.3d 440, 444 (5th Cir.2005) (citing Shaw v. Delta Air Lines Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)). Because we construe Bloemker’s complaint as stating claims under the statutory and federal common law of ERSIA, even though his contract, misrepresentation, and estoppel claims are similar to some state law claims, they are not preempted. . The First Circuit has not yet determined whether it will \"recognize[] estoppel claims under ERISA’s civil enforcement provisions.” Livick v. Gillette Co., 524 F.3d 24, 30-31 (1st Cir.2008). The Fourth Circuit considers waiver and estoppel to be \"prohibited concepts” with respect to ERISA. Gagliano v. Reliance Standard Life Ins. Co., 547 F.3d 230, 239 (4th Cir.2008). The Eighth Circuit applies the doctrine of estoppel to ERISA cases, Fink v. Union Cent. Life Ins. Co., 94 F.3d 489, 492 (8th Cir. 1996), but we find no case from the Eighth Circuit applying, or refusing to apply, ERISA estoppel to a pension claim. The Tenth Circuit has not" }, { "docid": "14377842", "title": "", "text": "review the grant of summary judgment de novo, applying the same standards as the district court. See Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir.1995). ERISA PREEMPTION The dispositive issue before this court is whether ERISA preempts THC’s state-law claims relating to the defendants’ alleged negligent misrepresentations ’ regarding Davis’s coverage under Armco’s ERISA plan. ERISA, 29 U.S.C. § 1144(a), preempts all state laws insofar as they “relate to any employee benefit plan covered by the Act.” State law “relates to” an ERISA plan “if it has a connection with or reference to such a plan.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). However, some state laws may affect an ERISA plan in “too tenuous, remote or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.” Id. at 100 n. 21, 103 S.Ct. 2890. ERISA does not preempt state law when the state-law claim is brought by an independent, third-party health care provider (such as a hospital) against an insurer for its negligent misrepresentation regarding the existence of health care coverage. See Memorial Hosp. System, v. Northbrook Life Ins. Co., 904 F.2d 236, 243-46 (5th Cir.1990). However, a hospital’s state-law claims for breach of fiduciary duty, negligence, equitable estoppel, breach of contract, and fraud are preempted by ERISA when the hospital seeks to recover benefits owed under the plan to a plan participant who has assigned her right to benefits to the hospital. See Hermann Hosp. v. MEBA Medical & Benefits Plan, 845 F.2d 1286, 1290 (5th Cir.1988) (Hermann I). In Cypress Fairbanks Med. Center, Inc. v. Pan-American Life Ins. Co., 110 F.3d 280 (5th Cir.), cert. denied, — U.S. -, 118 S.Ct. 167, 139 L.Ed.2d 110 (1997), this court discussed what some lower courts characterized as tension between Memorial and our earlier holding in Hermann I and determined that the cases were consistent with one another. Id. Cypress examined the scope of the holding in Memorial: did Memorial preclude ERISA preemption for all claims brought by third party providers of" }, { "docid": "14871678", "title": "", "text": "state law causes of action, including state law promissory estoppel claims. See Averhart v. U.S. WEST Mgmt. Pension Plan, 46 F.3d 1480, 1485 (10th Cir.1994). While some other circuits have created a federal common-law cause of action premised on equitable estoppel in the ERISA context, see, e.g., Pell v. E.I. DuPont de Nemours & Co., 539 F.3d 292, 300 (3d Cir.2008), we have yet to recognize such a claim. Callery v. U.S. Life Ins. Co., 392 F.3d 401, 407 (10th Cir. 2004). We have left open the possibility that an ERISA estoppel claim might be viable in “egregious cases,” such as where the employer lied, engaged in fraud, or intended to deceive the participants, id. at 407-08, or where the claim was premised on the employer’s interpretation of an ambiguous provision in the plan, Averhart, 46 F.3d at 1486. In this case we need not determine whether to adopt an estoppel claim in the ERISA context. Plaintiffs do not allege circumstances such as lies, fraud, or intent to deceive. See 1 ApltApp. 57-59. Further, as we held above, the Plan unambiguously reserved to Qwest the right to amend or terminate the Basic Life Coverage. Accordingly, Plaintiffs’ equitable estoppel claim would fail as a matter of law even if we were to adopt the ERISA equitable estoppel cause of action. We therefore affirm the district court’s decision dismissing Claim 1 of the AC. C. Effect of the 2005 Resolution: Claim 3 of the SAC. Claim 3 of the SAC alleges that the 2005 Resolution did not effectively amend the Plan because it was not adopted and incorporated into the Plan Documents. 5 Aplt.App. 981. Qwest moved for summary judgment, arguing that the 2005 Resolution sufficiently manifested Qwest’s intent to amend the Plan or, in the alternative, that Qwest ratified the amendment by its subsequent actions. See 6 Aplt.App. 1184, 1191. The district court granted the motion, holding that Qwest’s actions — specifically, approving the 2005 Resolution, sending out notices of the changes to plan participants, and conducting itself in accordance with the 2005 Resolution — sufficiently manifested its intent to amend" }, { "docid": "19768592", "title": "", "text": "the state law relates to a plan.” In Home Health, Inc. v. Prudential Ins. Co. of Am., 101 F.3d 600, 604 (8th Cir.1996); see also Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) (“Some state actions may affect employee benefit plans in too tenuous, remote, or peripheral a manner to warrant a finding that the law ‘relates to’ the plan.”). “In determining whether a state action ‘relates to’ an employee benefit plan covered by ERISA, [the Eighth Circuit Court of Appeals] employ[s] a two-part test.” Parkman v. Prudential Ins. Co. of Am., 439 F.3d 767, 771 (8th Cir.2006) (citing Wilson v. Zoellner, 114 F.3d 713, 715 (8th Cir.1997)). “A law relates to a covered employee benefit plan for purposes of ERISA if it has (1) ‘a connection with’ or (2) ‘reference to such a plan.’ ” Id. (quoting Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., Inc., 519 U.S. 316, 324, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997)). Second, there is “conflict” preemption. Section 502(a) of ERISA provides a comprehensive remedial scheme to enforce ERISA’s provisions. 29 U.S.C. § 1132(a). This preemption exists when a state law “conflicts with a specific portion of the complex ERISA statute.” Painter v. Golden Rule Ins. Co., 121 F.3d 436, 439 (8th Cir.1997). The Supreme Court has determined that ERISA’s remedies preempt “state common law tort and contract actions asserting improper processing of a claim for benefits under an insured employee benefit plan.” Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 43, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). A state claim that would fall within the scope of ERISA’s remedial scheme is preempted as conflicting with the exclusivity of the ERISA’s remedial scheme even when the state claim is not preempted by Section 514(a). See Aetna Health Inc. v. Davila, 542 U.S. 200, 214 n. 4, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) (“But a state cause of action that provides an alternative remedy to those provided by the ERISA civil enforcement mechanism conflicts with Congress’ clear intent to make" }, { "docid": "22228727", "title": "", "text": "of pension plans, Coleman believes the reason for not allowing estoppel is absent. We do not think, however, that the statutory emphasis on adherence to the written terms of ERISA plans leaves room for this distinction between pension and welfare benefit plans. Section 1102 requires that “[e]very employee benefit plan shall be established and maintained pursuant to a written instrument,” 29 U.S.C. § 1102(a)(1) (emphasis added), and the requirement that formal amendment procedures be included in the written document similarly applies to “[ejvery employee benefit plan,” id. § 1102(b). According to ERISA’s definition, the term “employee benefit plan” includes both welfare benefit and pension plans. Id. § 1002(3). We also note that Congress knew how to exempt welfare benefit plans from ERISA requirements when it wished to do so. See id. § 1051(1) (exempting welfare benefit plans from ERISA’s participation and vesting requirements); id. § 1081(1) (exempting welfare benefit plans from ERISA’s funding requirements); Hozier, 908 F.2d at 1164 (noting these provisions); see also Moore v. Metropolitan Life Ins. Co., 856 F.2d 488, 492 (2d Cir.1988) (refusing to apply estop-pel to. case involving informal modification of welfare benefit plan). Given the language of the statute, we are unable to discern any basis for holding that estoppel principles are available to effectively amend the written terms of a welfare benefit plan. Indeed, in rejecting the view that common law estoppel is freely available to modify ERISA plans, this circuit has drawn no distinction between pension and welfare benefit plans. See Salomon v. Transamerica Occidental Life Ins. Co., 801 F.2d 659, 660-61 (4th Cir.1986) (monthly income benefit plan); Holland, 772 F.2d at 1147 (severance pay plan). We also note that several important purposes of ERISA would be impeded through use of estoppel principles in welfare benefit plan cases. ERISA is designed “to promote the interests of employees and their beneficiaries in employee benefit plans,” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983), as well as “to protect contractually defined benefits,” Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 148, 105" }, { "docid": "22228728", "title": "", "text": "Cir.1988) (refusing to apply estop-pel to. case involving informal modification of welfare benefit plan). Given the language of the statute, we are unable to discern any basis for holding that estoppel principles are available to effectively amend the written terms of a welfare benefit plan. Indeed, in rejecting the view that common law estoppel is freely available to modify ERISA plans, this circuit has drawn no distinction between pension and welfare benefit plans. See Salomon v. Transamerica Occidental Life Ins. Co., 801 F.2d 659, 660-61 (4th Cir.1986) (monthly income benefit plan); Holland, 772 F.2d at 1147 (severance pay plan). We also note that several important purposes of ERISA would be impeded through use of estoppel principles in welfare benefit plan cases. ERISA is designed “to promote the interests of employees and their beneficiaries in employee benefit plans,” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S.Ct. 2890, 2896, 77 L.Ed.2d 490 (1983), as well as “to protect contractually defined benefits,” Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 148, 105 S.Ct. 3085, 3093, 87 L.Ed.2d 96 (1985). It requires a crabbed réading of these purposes to suggest that they áre directed solely at the actuarial soundness of pension plans. Indeed, the Seventh Circuit has recently recognized that “[o]ne of ERISA’s purposes is to protect the financial integrity of pension and welfare plans by confining benefits to the terms of the plans as written.” Pohl v. National Benefits Consultants, Inc., 956 F.2d 126, 128 (7th Cir.1992) (emphasis added). The financial integrity of a group health insurer could be quickly compromised if courts compelled the insurer to assume risks for which no premium was ever paid. Moreover, if courts allowed estoppel to be used to modify ERISA plans, plan assets could also be chewed up in costly, litigious disputes over what informal modifications may have been made to a written instrument. In sum, we think the district court was correct to conclude that estoppel was unavailable to alter the unambiguous terms of an ERISA welfare benefit plan. IV. A. In entering summary judgment in Coleman’s favor, the" }, { "docid": "7412288", "title": "", "text": "engaged in commerce. The Supreme Court has emphasized the broad sweep of the preemption. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380 (1985); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983); Pilot Life Ins. Co. v. Dedeaux, —U.S.-, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987). Anderson would distinguish between an action to recover benefits (or enforce his rights or clarify his rights to future benefits) under the terms of a plan as it exists (in which case state law is clearly preempted and the action is under § 1132(a)(1)(B)) and an action to establish his contract right to have other benefits added to the plan (in which case he argues that state law applies). We think his distinction cannot stand, and conclude that principles of common law governing a claimed contract right to have the plan modified clearly “relates to” the plan and that state law in that area is preempted. Cf. Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1216 (8th Cir.), cert. denied, 454 U.S. 968, 102 S.Ct. 512, 70 L.Ed.2d 384 (1981) (state law claim of tortious interference with employee benefit plan preempted); Salomon v. Transamerica Occidental Life Ins. Co., 801 F.2d 659, 660 (4th Cir.1986) (state law claims for breach of contract to pay benefits and estoppel to refuse payment preempted); Authier v. Ginsberg, 757 F.2d 796, 800-01 (6th Cir.1985) (state law claim for improper discharge of employee because of conduct prompted by ERISA preempted). The Supreme Court recently considered an action which had been filed in state court on a state law contract theory and removed to federal court. The complaint sought damages on account of refusal to pay benefits under a benefit plan. Examining the intent of Congress, the Court held that state law actions which are preempted by ERISA are removable to federal court under 28 U.S.C. § 1441(a), even though federal preemption is ordinarily a defense to plaintiff’s suit. Metropolitan Life Insurance Co. v. Taylor, —U.S.-, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); see Louisville & Nashville R.R. Co. v." } ]

[ { "docid": "13953010", "title": "", "text": "Nord’s agents at the time the tort was committed, the fact remains that the conduct which constitutes an essential element of the union’s state law action is the very same conduct that the Board considered in rejecting the union’s unfair labor practice claims. The Supreme Court stated in Jones that if the conduct relied on to prove a crucial element in the state action is conduct that is arguably covered by the NLRA, then the state claim is preempted. 460 U.S. at 682, 103 S.Ct. at 1462. The union suggests that our recent decision in Aragon v. Federated Department Stores, Inc., 750 F.2d 1447 (9th Cir.1985) (Aragon), supports its argument that the state claim is not preempted by federal law. However, Aragon is distinguishable from the instant case because it involved a malpractice charge against a union’s counsel. The resolution of the state claim was dependent on “the standard of care the attorney owes the client” and not on an evaluation of conduct that was arguably covered by the NLRA. Id. at 1457. The union’s state law claim is different because one of its essential elements would require the district court to delve into the intricacies of the collective bargaining process, a domain we feel is better left to the exclusive jurisdiction of the Board. Finally, the union argues that even if the labor consultants’ conduct is arguably prohibited under section 8 of the NLRA, 28 U.S.C. § 158, the state’s interest in preventing tortious interference with a contract warrants recognizing an exception to the general rule of exclusive jurisdiction. However, in Jones the Supreme Court held that state claims based on intentional interference with contractual relations are not “so deeply rooted in local law that [the state’s] interest in enforcing that law overrides the interference with the federal labor law that prosecution of the state action would entail.” 460 U.S. at 683, 103 S.Ct. at 1462; see also Wilkes-Barre, 647 F.2d at 381 (state interest in preventing tortious interference with labor contract does not warrant recognizing an exception to general rule of exclusive jurisdiction). Consequently, we hold that the" } ]

[ { "docid": "15367762", "title": "", "text": "S.Ct. at 1753, 1758. Having undertaken the required inquiry, Sears concluded that an employer’s claim for trespass by union picketers was not preempted by the NLRA. Had the Supreme Court issued no more opinions on this subject after Sears, our task would be well-defined. Alas, the law is not so cooperative: A few years later, the impact of Sears was analyzed twice in one Term of Court, with ostensibly differing results. In Jones, a supervisor first filed a complaint with the NLRB “alleging that the Union had ‘procured’ his discharge” and accordingly coerced his employer in “the selection of its ... bargaining representative” in violation of §§ 8(b)(1)(A), (B) of the NLRA. See id. at 672-73, 103 S.Ct. at 1456-57. The Board refused to issue a complaint because of insufficient evidence that the Union had caused Jones’ discharge. See id. Jones did not utilize the administrative appeals process. Instead, he filed a state law action, alleging that the Union had interfered with his employment contract and caused his discharge. See id. at 682, 103 S.Ct. at 1462. The Court determined that the Union’s conduct was arguably prohibited by § 8(b)(1)(B) and Jones’s claim was preempted by the NLRA. See id. Rejecting Jones’s argument for the application of state law, the Court observed that the NLRA violation and the state law claim shared a “fundamental” common element: both allegations required a finding that Jones' discharge was “the result of Union influence.” See id. at 682, 103 S.Ct. at 1462. The Court objected to Jones’s attempt to relitigate the question of causation in the state courts and found the risk of state court interference with the Board’s jurisdiction “obvious and substantial.” Id. at 683, 103 S.Ct. at 1462. Four months later, the Court again applied the Sears “identical controversy” standard. The Court held that breach of contract and misrepresentation claims alleged by replacement employees hired during a strike were not preempted despite the fact that the same conduct was arguably prohibited by NLRA §§ 8(a)(1), (3) and (5). See Belknap, 463 U.S. at 510-11, 103 S.Ct. at 3183-84. The employer had promised" }, { "docid": "21113518", "title": "", "text": "activity ... 18 U.S.C. § 1962(c) (1982). The statute also prohibits any person to conspire to violate any of the substantive provisions of the above section. See 18 U.S.C. § 1962(d) (1982). RICO and the NLRA are independent of each other in virtually all respects, even though certain conduct by employers or by unions could fall within the bounds of both statutes. One of the issues that arises in this motion to dismiss is whether Congress intended RICO to reach conduct that arguably amounts to unfair labor practice, which otherwise falls within the exclusive jurisdiction of the NLRB, and if so to what extent. The statutes can, however, be reconciled without the goals of either Act being ignored by looking to the type of injury a plaintiff alleges and to the defendant’s conduct to determine whether the NLRA or RICO provides the appropriate remedy. TV. DISCUSSION The Unions make six separate arguments in support of their motion to dismiss. A. Preemption The Unions’ first argument in support of dismissal is based on preemption. The Unions contend that many of the DNA’s 259 alleged predicate acts are preempted by the NLRA. Any analysis regarding NLRA preemption of RICO must necessarily begin with the Supreme Court decision in San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). In Garmon, the Court held that “[w]hen an activity is arguably subject to § 7 or § 8 of the [NLRA], the States as well as the federal court, must defer to the exclusive competence of the National Labor Relations Board if the danger of state interference with national policy is to be averted.” Id. at 245, 79 S.Ct. at 780. See also Amalgamated Ass’n of Street, Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 276, 91 S.Ct. 1909, 1913, 29 L.Ed.2d 473 (1971) (stating that NLRA “pre-empts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by the Act”). With the advent of civil RICO, however, an inevitable conflict developed between RICO and the NLRA. One of the" }, { "docid": "7937141", "title": "", "text": "of interference with her union activities as a union organizer. The very same conduct provides the factual basis for the unfair labor practice charges brought by the Union on her behalf, which were eventually incorporated into the complaint and notice of hearing issued by the NLRB. Her claims are fundamentally grounded in an assertion that the rights which her employer interfered with involve her union activity. Where, as here, the ease involves conduct arguably prohibited by § 8 of the Act, the NLRB has broad authority to determine the appropriate remedy for wronged employees. “In fact, since remedies form an ingredient of any integrated scheme of regulation, to allow the state to grant a remedy here which has been withheld from the NLRB only accentuates the danger of conflict.” Garmon, 359 U.S. at 247, 79 S.Ct. at 781; Richardson v. Kruchko & Fries, 966 F.2d 153, 157 (4th Cir.1992). Board authority over claims of interference with union activities is not merely of peripheral concern to the Act. Rather, the Board’s authority to remedy such practices is central to its purpose. See Tamburello v. Comm-Tract Corporation, 67 F.3d 973, 978 n. 5 (1st Cir.1995). Moreover, the fact that the Union clearly considered Chaulk’s conduct an unfair labor practice, and that the Board entertained such charges, only buttresses the Court’s conclusion that said conduct is not only “arguably”, but obviously prohibited under section 8(a) of the NLRA. It also highlights the very real danger of interference with the NLRB’s jurisdiction, as it was precisely the Board’s timely intervention which in this case led to the agreement through which Chaulk pledged, among other things, not to engage in the challenged conduct, or take similar actions to hinder its employees in their union activities. Significantly, the Supreme Court has held that in cases where the underlying conduct is arguably prohibited by the NLRA, application of the so-called “local interests” exception hinges, in the first place, upon the existence of a significant state interest in protecting its citizens from the challenged conduct. In second place, the controversy which could be presented to the state court" }, { "docid": "15367765", "title": "", "text": "preventing misrepresentations and enforcing promises. Id. at 510-11, 103 S.Ct. at 3183. Finally, the Court noted that the remedies available to the strikers under the NLRA did not overlap with the remedies sought by the replacement workers under state law. See id. III. PREEMPTION ANALYSIS APPLIED Although preemption issues like this are rarely clear-cut, we are persuaded that Windfield’s claims more closely resemble those in Belknap than the interference with contract claim held preempted by Jones. The parties agree that Groen’s “personal guarantee” of employment and an anti-union discharge are arguably prohibited by §§ 8(a)(1) and 8(a)(3) of the NLRA, rendering Windfield’s cause of action preempted unless it falls within an exception to Gar-mon. See Belknap, 463 U.S. at 509, 103 5.Ct. at 3182. On one level, Belknap clearly supports Windfield’s contention that his claims for breach of employment contract, promissory estoppel and fraud touch a deeply rooted state interest, for Belknap dealt with nearly identical causes of action. Belknap also concluded that the state’s interest in enforcing such claims was of peripheral concern to the NLRB and did not involve an “identical cause of action” pursuant to Sears. Belknap is not fully analogous to this case, however, because the plaintiffs there were non-union replacement workers whose treatment by Belknap could not be the focus of an NLRB proceeding. The Board would adjudicate only whether the offer of employment to replacement workers infringed the rights of strikers. Groen argues that Windfield, as a pro-union activist and member of the potential bargaining unit, would have been a direct beneficiary of an NLRB adjudicative proceeding to determine whether its personal guarantee or his firing was an unfair labor practice. As such, Windfield is allegedly just a forum-shopper who, once the union failed to convince the general counsel of the NLRB to file a complaint in its behalf, simply carried his dissatisfaction into state court. Moreover, Groen argues, the NLRB has much more than a peripheral interest in assuring that the personal guarantee did not interfere with the workers’ free choice during the representation election. We do not consider these points critical, based" }, { "docid": "19980921", "title": "", "text": "found that under certain circumstances state tort claims do not interfere with the function of the NLRB. In Farmer v. United Brotherhood of Carpenters, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977), the Supreme Court allowed a union leader, intimidated and threatened by other union members, to sue in state court for intentional infliction of emotional distress. Balancing the concerns of the state tort law and the federal scheme, the Supreme Court found that the infringement on federal labor policy was slight and the State had a substantial interest in protecting its citizens from abuse. Later, however, in Local 926, Int’l Union of Operating Engineers v. Jones, the Supreme Court held that a state law action for tortious interference with a contract involved conduct arguably protected or prohibited by the NLRA. 460 U.S. 669, 678, 103 S.Ct. 1453, 75 L.Ed.2d 368 (1983). There, a supervisory employee sued the union alleging that the union’s business agent retaliated against him by coercing his employer to breach its employment contract. Id. at 672, 103 S.Ct. 1453. The Supreme Court held that, if proven, such conduct violated sections 7 and 8 of the NLRA, and thus the state law claim for tortious interference with a contract was preempted. Id.’, See also, Iron Workers v. Perko, 373 U.S. 701, 83 S.Ct. 1429, 10 L.Ed.2d 646 (1963) (holding that a state tort claim for tortious interference was preempted under Garmon doctrine). In this case, the gist of MVM’s claim for tortious interference is that Rodriguez’s USMS letter caused MVM a loss of good will with the USMS. Rodriguez’s letter states that MVM was violating labor laws, the collective bargaining agreement with the union and the federal contract. It goes on to state that the CSOs filed complaints with the NLRB and yet MVM continued to violate the rights that federal labor law gives them to “form, [j]oin or assist a[u]nion[.]” (Docket No. 48-3) These rights are established in section 7 of the NLRA 29 U.S.C. § 157. Employees have the right to engage in “concerted activities for the purpose of collective bargaining or other" }, { "docid": "21081715", "title": "", "text": "are preempted from regulating conduct that even “arguably” constitutes an unfair labor practice under NLRA § 8. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244-45, 79 S.Ct. 773, 779, 3 L.Ed.2d 775 (1959). In Amalgamated Ass’n of Street, Elec. Ry. and Motor Coach Employees of Am. v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971), the Supreme Court applied the Garmon preemption doctrine in the context of a state judgment based on a breach of contract theory and on facts that arguably constituted a violation of NLRA §§ 8(b)(2) and (a)(1), (3). Id. at 293, 91 S.Ct. at 1921. It noted that concurrent state court and federal administrative jurisdiction over such conduct bristled with potential conflicts between rules of substantive law, methods of administering that law, and remedies for its violation. Id. at 287-88, 91 S.Ct. at 1918. Both the comprehensiveness of the NLRA and the assignment of jurisdiction to a specialized federal agency, the National Labor Relations Board (“NLRB”), led the court to hold that the NLRB has exclusive jurisdiction to adjudicate conduct that arguably violates Section 8. Caldwell’s state law claims must thus be dismissed. The conduct that he alleges is at least arguably an unfair labor practice and is subject to the exclusive jurisdiction of the National Labor Relations Board. Were his state law claims allowed to proceed, a federal court would have to find facts, determine whether the state law relied upon is consistent with the substantive provisions of the NLRA, and fashion a remedy to redress a violation. However, each of these tasks is the exclusive responsibility of the NLRB. B. Antitrust Claims 1. Introduction Although the Garmon doctrine of exclusive jurisdiction appears not to have been used as a defense in antitrust actions brought by unions or by players who are represented by a union, it is nevertheless relevant by analogy to our discussion of the so-called nonstatu-tory labor exemption, which bars Caldwell’s antitrust claims. Invoking antitrust principles that prohibit price (wage) fixing, see Anderson v. Shipowners Assoc., 272 U.S. 359, 47 S.Ct. 125, 71 L.Ed. 298 (1926)," }, { "docid": "19980924", "title": "", "text": "conduct governed by the NLRA, which is within the exclusive jurisdiction of the NLRB. This case does not fall within any of the recognized exceptions to the Garmon doctrine. It is not a matter so “deeply rooted” in local concern as to require federal labor law to yield its jurisdiction. See Farmer, 430 U.S. at 297, 97 S.Ct. 1056; Sears, 436 U.S. at 188-89, 98 S.Ct. 1745; Jones, 460 U.S. at 676, 103 S.Ct. 1453. Neither is the controversy a matter of peripheral concern to the NLRA; rather, MVM’s state law claim falls deep within the roots of federal labor law. Balancing the concerns between the state tort law and the NLRA, the Court finds that the infringement on federal labor policy would be substantial because the state claim presented is inextricably intertwined with federal labor law. Decisions from other federal courts in which state interference with contract claims were not preempted are easily distinguishable from the facts of this case. For example, in Galveston Linehandlers, Inc. v. Int’l Longshoremen’s Assoc., plaintiffs sued two individuals and a union for alleged interference with a contract as well as other state law causes of action. 140 F.Suppüd 741 (S.D.Tex.2001). The union was accused of participating in sham negotiations as a cover for independent business competition. Id. at 747. It was also accused of convincing the plaintiffs’ clients to cease doing business with them not to gain leverage in a labor dispute but to benefit a newly formed company allied to the union. Id. The Galveston Linehan-dlers’ court deemed this behavior to be “ ‘peripheral’ at best” to the NLRA. Id. Unlike in Galveston Linehandlers, there is no inference that may be drawn from the record that Rodriguez’s conduct was done with an ulterior motive unrelated to the labor dispute. Because Rodriguez’s conduct is expressly covered by section 7 of the NLRA, the Court cannot permit the state claim to go forward. There is a clear risk of inconsistent adjudications by this Court and the NLRB. Consequently, federal law preempts the state claim for interference with a contract. See Lumber Production Indus. Workers," }, { "docid": "21720129", "title": "", "text": "pursued relief under the NLRA before, the Board. Although we are aware of no decisions barring the pursuit of claims under the LMRDA on the basis of a prior successful NLRB proceeding, we examine the defendants’ arguments in turn. We find that the district court’s jurisdiction over Count III was not preempted by the exclusive jurisdiction of the NLRB. Under the preemption doctrine, state and federal courts generally may not adjudicate claims based on conduct that is arguably protected or arguably prohibited by the NLRA. See San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959). As the Supreme Court explained in Amalgamated Association of Motor Coach Employees v. Lockridge, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473 (1971), The principle of preemption that informs our general national labor law was born of this Court’s efforts, without the aid of explicit congressional guidance, to delineate state and federal judicial authority over labor disputes in order to preclude, so far as reasonably possible, conflict between the exertion of judicial and administrative power in the attainment of the multifaceted policies underlying the federal scheme. Id. at 286, 91 S.Ct. at 1918. Thus, although developed in the courts, the doctrine is designed to effectuate congressional intent. In Lockridge, the Supreme Court held that the preemption doctrine barred a state court from entertaining a breach of contract claim against a union for procuring the discharge of an employee, since the union’s conduct was arguably protected by section 7 and arguably prohibited by section 8 of the NLRA, 29'U.S.C. §§ 157, 158. Local 31, relying on Lockridge, argues that the essence of Count III is the union’s attempt to procure Quinn’s discharge on grounds other than his failure to pay dues, and that the claim is therefore within the exclusive jurisdiction of the NLRB because “it merely restates, under the guise of the LMRDA, an unfair labor practice, previously found by the NLRB under [sjection 8(b)(2) of the Act.” Brief for Appellants at 9. In other words, even though Count III charges conduct that violates the rights" }, { "docid": "21113521", "title": "", "text": "179-80, 87 S.Ct. 903, 910-12, 17 L.Ed.2d 842 (1967). Accord, Tamburello v. Comm-Tract Corp., 67 F.3d 973, 977-78 (1st Cir.1995); Brennan v. Chestnut, 973 F.2d 644, 646 (8th Cir.1992). Accordingly, this court will find that Garmon preemption is invoked unless one of the above exceptions is applicable. As to the first exception, the only labor-related “racketeering” activity expressly listed as predicates to liability under RICO are actions concerning restrictions of payments and loans to labor organizations, or those relating to embezzlement from labor funds. Tamburello, 67 F.3d at 977 (citing 29 U.S.C. § 186). Since the DNA does not allege §186 violations, the first exception does not apply. Taken out of order, the third exception likewise does not apply in the instant case because the relationship between two federal laws, i.e. RICO and the NLRA, is implicated as opposed to a state and a federal law. Tamburello, 67 F.3d at 973. The second exception, however, arguably applies to a great many of the predicate acts that have been alleged. For instance, DNA’s extortion allegations arguably establish violations of both RICO and the NLRA, to wit: extortion on the one hand, and unfair labor practices on the other. See Tamburello, 67 F.3d at 978. To determine whether these acts are merely peripheral or collateral to the labor laws, this court must look to the underlying conduct complained of in the RICO claim to determine if it falls within the exclusive jurisdiction of the NLRB. Butcher’s Union, 631 F.Supp. at 1010; Brennan, 973 F.2d at 646. The Unions urge this court to follow Brennan, swpra. In Brennan, a RICO claim was filed by union members who claimed that their employer had engaged in a pattern of extortion and fraud by terminating union members who engaged in union activity, by threatening and coercing employees to accept poor working conditions, and by misrepresenting reasons for refusing to increase wages. The court held that the union’s RICO action was preempted by the NLRA because the “pilots’ RICO claim is preempted by Garmon as it involves conduct protected and prohibited by the NLRA.” Brennan, 973 F.2d" }, { "docid": "20372692", "title": "", "text": "of federal labor law occurred, jurisdiction is preempted. MHC v. Intern. Union, United Mine Wkrs. of Am., 685 F.Supp. 1370, 1376-77 (E.D.Ky.1988). Similarly, we have held, in the context of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., that the NLRA is the exclusive remedy for claims “which hinge on an unfair labor practice having occurred.” Morgan, 901 F.2d at 194. Like Tamburello, the plaintiff in Brennan alleged extortion as a predicate RICO act. In holding that the plaintiffs RICO extortion claim was “preempted” (see supra n. 2) by the NLRA, the Eighth Circuit court noted that 18 U.S.C. § 1951 (1988) is a generic law prohibiting extortion, and reasoned that the court was therefore forced to look to the labor laws to define the alleged illegal conduct. Because the defendant’s conduct was illegal, if at all, only by virtue of the NLRA, the court concluded that the NLRB had exclusive jurisdiction to resolve what was, at its essence, an unfair labor practice claim. See Brennan, 973 F.2d at 647. For reasons similar to those expressed in Brennan, we conclude that the unfair labor practice issues implicated by Tamburello’s complaint are not merely collateral to his RICO claims. Tamburello alleges that his supervisors placed him on the less desirable work assignments, reduced his chances for overtime pay, made him take a forced vacation or face termination, took away his company vehicle, and made threatening anti-union activities, all to coerce him into giving up his union steward position, and, eventually, to resign his position with Comm-Tract. The problem is that none of this alleged conduct is illegal without reference to the NLRA. It is the NLRA that prohibits employers from creating intolerable working conditions to discourage union activities, see 29 U.S.C. § 158(a)(3); Sure-Tan, 467 U.S. at 894, 104 S.Ct. at 2809-10, and it is the NLRA that prohibits an employer from interfering with an employee’s right to join a union and engage in concerted activities for mutual aid and protection. See 29 U.S.C. §§ 158(a)(1), 157. Indeed, one would presume that Congress passed" }, { "docid": "10073014", "title": "", "text": "West Coast, the plaintiff, a union, alleged that certain labor consultants whom the employer had hired to negotiate a collective bargaining agreement with the union had maliciously interfered with the union’s prospective contractual relationship with the employer. The defendants contended that this claim was preempted by the NLRA. The union disagreed (apparently) arguing that the labor consultants were acting as independent third parties when they tortiously induced the termination of the prospective contractual relationship, that is, the labor consultants could be sued under state law because they were not employers within the meaning of sec. 158. The Ninth Circuit rejected the union’s argument and held that the claim was preempted. Even if we accept the union’s argument that the labor consultants were not [the employer’s] agents at the time the tort was committed, the fact remains that the conduct which constitutes an essential element of the union’s state law action [ (namely, that the labor consultants’ conduct caused the termination of the collective bargaining relationship between the employer and the union)] is the very same conduct that the Board considered in rejecting the union’s unfair labor practice claims. The Supreme Court stated in [Local 926, International Union of Operating Engineers v.] Jones[, 460 U.S. 669, 103 S.Ct. 1453, 75 L.Ed.2d 368 (1983),] that if the conduct relied on to prove a crucial element in the state action is conduct that is arguably covered by the NLRA, then the state claim is preempted. Id. at 1049. Although the Ninth Circuit’s reliance on Jones is open to question (in that the defendant in Jones was a labor organization, and therefore clearly covered under sec. 158(b)), we conclude that its result was sound. In this case, the centerpiece of the plaintiffs’ claim is that CHS Acquisition and Corral induced Keystone to breach its labor agreements with the Union, which, as in West Coast, is the same conduct which would form the core of an unfair labor practice presented to the NLRB. Therefore, the plaintiffs’ claim for intentional interference with contractual relations also is preempted by the NLRA. 4. Alter ego The plaintiffs unquestionably" }, { "docid": "3116139", "title": "", "text": "judgments— precisely the evils that Garmon preemption seeks to avoid. “In cases where, as here, the substance of the dispute is the same under both state and federal law, the state law must yield to the jurisdiction of the NLRB.” Parker v. Connors Steel Co., 855 F.2d 1510, 1518 (11th Cir.1988). “[W]hen the same controversy may be presented to the state court or the NLRB, it must be presented to the Board.” Sears, Roebuck, 436 U.S. at 202, 98 S.Ct. at 1760. That the instant claims sound in tort, whereas the administrative action before the NLRB involves allegations of statutory violations of NLRA § 8(a), is beside the point. The Supreme Court has emphasized that mere labels are not relevant in the labor preemption context; rather, labor preemption is “ 'concerned] ... with delimiting areas of conduct which must be free from state regulation if national policy is to be left unhampered.’ ” Local 100, United Ass’n of Journeymen v. Borden, 373 U.S. 690, 698, 83 S.Ct. 1423, 1428, 10 L.Ed.2d 638 (1963) (quoting Garmon, 359 U.S. at 246, 79 S.Ct. at 780); see also, e.g., Jones, 460 U.S. at 675-84, 103 S.Ct. at 1458-63 (holding a tortious interference with contract claim preempted); Carter v. Sheet Metal Workers’ Int’l Ass’n, 724 F.2d 1472 (11th Cir.1984) (holding an intentional infliction of emotional distress claim preempted); In re Sewell, 690 F.2d 403 (4th Cir.1982) (holding a tortious interference with contract claim preempted). Thus, Richardson may not avoid Garmon preemption by re-labelling unfair labor practice charges as state-law torts or by suing a third party allegedly not subject to the NLRA. Neither tactic is availing, and the judgment of the district court dismissing the complaint must therefore be AFFIRMED. There are two exceptions to this broad preemption principle. First, state law is not preempted to the extent that \"the conduct at issue is only a peripheral concern of the [NLRA].” Jones, 460 U.S. at 676, 103 S.Ct. at 1459. Second, preemption is inapplicable when “the conduct at issue ... touches on interests so deeply rooted in local feeling and responsibility that, in the" }, { "docid": "23559788", "title": "", "text": "district court dismissed this claim on the basis that it was preempted by two federal labor law preemption doctrines. The district court found that Count I stated a claim for failure to bargain in good faith. See Brown v. Keystone Consolidated Industries, Inc., 680 F.Supp. 1212, 1219 (N.D.Ill.1988) (claim by employee that union and employer fraudulently withheld information while negotiating a shutdown agreement that lead to his termination constituted a claim for failure to bargain in good faith). Accordingly, the court found that the plaintiffs’ state law claim was preempted under San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245-46, 79 S.Ct. 773, 779-80, 3 L.Ed.2d 775 (1959) because the defendants’ conduct is arguably prohibited as an unfair labor practice under § 8 of the National Labor Relations Act (NLRA), 29 U.S.C. § 158. The Garmon doctrine is designed to protect the primary jurisdiction of the NLRB from federal and state courts, Keehr v. Consolidated Freightways of Delaware, Inc., 825 F.2d 133, 136 (7th Cir.1987), by providing the NLRB with exclusive jurisdiction to determine whether given conduct falls within the NLRA. Garmon, 359 U.S. at 244-45, 79 S.Ct. at 779-80. The plaintiffs argue that the district court mischaracterized their claim as a claim for failure to bargain in good faith because the Union failed to bargain at all due to the majority ownership of Matthews by Union officials. However, the plaintiffs’ allegations that the transfer of their employment to Matthews without a vote by Union members violated the Union by-laws, that James McMahon illegally terminated their collective bargaining agreement with Jewel and crushed all resistance to the transfer with serious threats of violence, that the defendants failed to disclose pertinent facts and made misrepresentations, that immediately after the transfer Frank McMahon received illegal payments from Neville Brothers, and that the transfer of the delivery work to Neville Brothers resulted in a reduction of labor costs for the defendants support the district court’s finding that Count I alleged conduct which is arguably prohibited by § 8 of the NLRA. See Kolentus v. Avco Corp., 798 F.2d 949, 961 (7th" }, { "docid": "3116133", "title": "", "text": "seeks to avert — “the potential conflict of two law enforcing authorities, with the disharmonies inherent in two systems, ...of inconsistent standards of substantive law and differing remedial schemes,” Garmon, 359 U.S. at 242, 79 S.Ct. at 778 — are present whenever courts are required to review conduct that is arguably prohibited or protected by the NLRA, no matter what the identity of the party against whom the state-law claims are as serted. Thus, we agree with the Ninth Circuit that the identity of the party defendant is not determinative; a state-law claim is preempted “if the conduct relied on to prove a crucial element in the state action is conduct that is arguably covered by the NLRA.” Lumber Prod. Indus. Workers Local #1054 v. West Coast Indus. Relations Ass’n, 775 F.2d 1042, 1049 (9th Cir. 1985) (citing Jones, 460 U.S. at 682, 103 S.Ct. at 1462); see also Satterfield v. Western Elec. Co., 758 F.2d 1252 (8th Cir.1985) (holding that a state tort claim that the owner of a construction project convinced the plaintiffs employer, a contractor, to fire him for conduct protected by NLRA § 7 is preempted). Our conclusion is not.disturbed by Richardson’s argument that such a rule of preemption would leave injured parties without a remedy when the tortfeasor is not subject to the NLRA. To begin with, the Supreme Court has made clear that state-law claims may be preempted even when a plaintiff is without a remedy under the NLRA. See Guss v. Utah Labor Relations Bd., 353 U.S. 1, 77 S.Ct. 598, 609, 1 L.Ed.2d 601 (1957) (holding that state-law claims are preempted even when the NLRB refuses to assume jurisdiction). Moreover, preemption of Richardson’s state-law claims would not leave her without a remedy for her discharge: she would retain those remedies, available through her administrative action against her employer, that are provided her by the NLRA. That state law might provide remedies unavailable under the NLRA has never been a basis for avoiding Garmon preemption. See Garmon, 359 U.S. at 246-47, 79 S.Ct. at 780; Jones, 460 U.S. at 684, 103 S.Ct. at" }, { "docid": "21113522", "title": "", "text": "establish violations of both RICO and the NLRA, to wit: extortion on the one hand, and unfair labor practices on the other. See Tamburello, 67 F.3d at 978. To determine whether these acts are merely peripheral or collateral to the labor laws, this court must look to the underlying conduct complained of in the RICO claim to determine if it falls within the exclusive jurisdiction of the NLRB. Butcher’s Union, 631 F.Supp. at 1010; Brennan, 973 F.2d at 646. The Unions urge this court to follow Brennan, swpra. In Brennan, a RICO claim was filed by union members who claimed that their employer had engaged in a pattern of extortion and fraud by terminating union members who engaged in union activity, by threatening and coercing employees to accept poor working conditions, and by misrepresenting reasons for refusing to increase wages. The court held that the union’s RICO action was preempted by the NLRA because the “pilots’ RICO claim is preempted by Garmon as it involves conduct protected and prohibited by the NLRA.” Brennan, 973 F.2d at 647. Brennan, however, is distinguishable from the instant case in that it involved conduct that was unlawful only by reference to the labor laws. See, e.g., Brennan, 973 F.2d at 647 (referring to §§ 7 and 8 of the NLRA to determine that pilots’ claim that employer violated compensation provisions of the CBA was unlawful.) Here, by contrast, many of the alleged predicate acts involving arson, robbery, destruction of property and assault do not require this court to look to the labor laws to determine whether they are unlawful. Similarly, the Unions’ reliance on Tambu-rello, supra, is unavailing. In Tamburello, plaintiff alleged that soon after he became a shop steward, his employer placed him on the less desirable work assignments, reduced his chances for overtime pay, made him take a forced vacation or face termination, took away his company vehicle, and made threatening anti-union activities. All of this was done to coerce him into giving up his union steward position, and eventually, to resign his position. Tamburello, 67 F.3d at 978. The First Circuit," }, { "docid": "21720130", "title": "", "text": "judicial and administrative power in the attainment of the multifaceted policies underlying the federal scheme. Id. at 286, 91 S.Ct. at 1918. Thus, although developed in the courts, the doctrine is designed to effectuate congressional intent. In Lockridge, the Supreme Court held that the preemption doctrine barred a state court from entertaining a breach of contract claim against a union for procuring the discharge of an employee, since the union’s conduct was arguably protected by section 7 and arguably prohibited by section 8 of the NLRA, 29'U.S.C. §§ 157, 158. Local 31, relying on Lockridge, argues that the essence of Count III is the union’s attempt to procure Quinn’s discharge on grounds other than his failure to pay dues, and that the claim is therefore within the exclusive jurisdiction of the NLRB because “it merely restates, under the guise of the LMRDA, an unfair labor practice, previously found by the NLRB under [sjection 8(b)(2) of the Act.” Brief for Appellants at 9. In other words, even though Count III charges conduct that violates the rights of union members under the LMRDA, and even though the LMRDA expressly provides for federal court jurisdiction over claims under the Bill of Rights provisions, see 29 U.S.C. § 412, the NLRB has exclusive jurisdiction under the preemption doctrine over conduct that also constitutes an unfair labor practice under the NLRA. We do not agree. The district court properly relied on International Brotherhood of Boilermakers v. Hardeman, 401 U.S. 233, 91 S.Ct. 609, 28 L.Ed.2d 609 (1971), in rejecting defendants’ argument. In Hardeman, a union member sued his union under a provision of the LMRDA Bill of Rights, 29 U.S.C. § 411(a)(5), alleging that he had been expelled without a full and fair hearing. The union contended that because Hardeman was seeking damages for loss of employment resulting from his expulsion, his real claim was essentially one of union discrimination in job referrals, and was within the exclusive competence of the NLRB. The Court rejected this argument in light of the explicit congressional purpose to refer claims under the LMRDA Bill of Rights to the" }, { "docid": "10073015", "title": "", "text": "conduct that the Board considered in rejecting the union’s unfair labor practice claims. The Supreme Court stated in [Local 926, International Union of Operating Engineers v.] Jones[, 460 U.S. 669, 103 S.Ct. 1453, 75 L.Ed.2d 368 (1983),] that if the conduct relied on to prove a crucial element in the state action is conduct that is arguably covered by the NLRA, then the state claim is preempted. Id. at 1049. Although the Ninth Circuit’s reliance on Jones is open to question (in that the defendant in Jones was a labor organization, and therefore clearly covered under sec. 158(b)), we conclude that its result was sound. In this case, the centerpiece of the plaintiffs’ claim is that CHS Acquisition and Corral induced Keystone to breach its labor agreements with the Union, which, as in West Coast, is the same conduct which would form the core of an unfair labor practice presented to the NLRB. Therefore, the plaintiffs’ claim for intentional interference with contractual relations also is preempted by the NLRA. 4. Alter ego The plaintiffs unquestionably have pleaded adequately the existence of an alter ego relationship between CHS Acquisition and Keystone. See Complaint, pars. 207-219; see also Adams & Westlake, Ltd. v. NLRB, 814 F.2d 1161, 1164 n. 1 (7th Cir.1987) (listing factors in alter ego analysis). CHS Acquisition does not argue that this court lacks jurisdiction under sec. 301 because it is a non-signatory to the CBA and Pension Agreement. It would not help if it did. See Local 705 v. Willett, Inc., 614 F.Supp. 932, 939 (N.D.Ill.1985) (citations omitted). CHS Acquisition does argue, however, that the alter ego claim is preempted by sec. 301 to the extent that it requires us to analyze the terms of the Shutdown Agreement. CHS Acquisition and Corral Memorandum at 19. We agree. In Count IV, the plaintiffs allege that Keystone defrauded and used economic duress to deprive the plaintiffs “of their employment and pension rights.” Par. 219. Assuming that this allegation is true, its resolution necessarily depends upon analysis of the CBA and Pension Agreement: we must initially determine that the plaintiffs have" }, { "docid": "10072994", "title": "", "text": "89 L.Ed.2d 223 (1986)), or conduct which, although not actually or arguably protected or prohibited under the NLRA, “Congress intended [to leave] unregulated [and] left ‘to be controlled by the free play of economic forces.’ ” Machinists v. Wisconsin Employment Relations Commission, 427 U.S. 132, 140, 96 S.Ct. 2548, 2553, 49 L.Ed.2d 396 (1976), quoting NLRB v. Nosh-Finch Co., 404 U.S. 138, 144, 92 S.Ct. 373, 377, 30 L.Ed.2d 328 (1971); see also Local 926, International Union of Operating Engineers v. Jones, 460 U.S. 669, 676 n. 8, 103 S.Ct. 1453, 1459 n. 8, 75 L.Ed.2d 368 (1983). The first prong of preemption under the NLRA, the so-called Garmon doctrine, is designed to protect the primary jurisdiction of the NLRB from the federal and state courts, (Keehr v. Consolidated Freightways, 825 F.2d 133, 136 (7th Cir.1987); Lingle v. Norge Division of Magic Chef, Inc., 823 F.2d 1031, 1042 (7th Cir.1987)), by providing the NLRB with exclusive jurisdiction to determine whether given conduct falls within the NLRA. See Garmon, 359 U.S. at 244-45, 79 S.Ct. at 779-80. Nevertheless, Garmon recognized that state regulation of conduct arguably within the NLRA was not preempted if the activity regulated is a mere peripheral concern of the labor laws, or if the regulated conduct touches interests so deeply rooted in local feeling that preemption cannot be inferred in the absence of “compelling congressional direction.” Garmon, 359 U.S. at 243-44, 79 S.Ct. at 778-79. In contrast, federal courts may exercise jurisdiction over claims under sec. 301 of the LMRA even if the conduct is arguably covered by the NLRA. See, e.g., Serrano v. Jones & Laughlin Steel Co., 790 F.2d 1279, 1288 (6th Cir.1986). Section 301 provides that: Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce * * * may be brought in any district court of the United States having jurisdiction over the parties * * *. 29 U.S.C. sec. 185(a). In determining whether a claim is preempted by sec. 301, “[t]he ultimate question is whether ‘resolution of [the] claim is substantially dependent upon" }, { "docid": "6676447", "title": "", "text": "Relations Board if the danger of state interference with national policy is to be averted.” Id. 359 U.S. at 245, 79 S.Ct. at 780. See also Local 926, Int’l Union of Operating Engineers v. Jones, 460 U.S. 669, 676, 103 S.Ct. 1453, 1459, 75 L.Ed.2d 368 (1983) (“[I]f the conduct at issue is arguably prohibited or protected otherwise applicable state law and procedures are ordinarily pre-empted”) (emphasis added); Lumber Production Industrial Workers Local 1054 v. West Coast Industrial Relations Ass’n, Inc., 775 F.2d 1042, 1048 (9th Cir.1985) (“[I]f a crucial element of a state court action is identical to an element of an unfair labor practice that is arguably covered by the NLRA, then the state action is preempted”) (emphasis added). Bassette’s claim alleges that she was wrongfully discharged, in violation of Montana’s WDA. Bassette’s discharge took place after the CBA between Stone and the Union had expired, and after negotiations to reopen the CBA had reached impasse. Given the context of Bassette’s discharge, we must determine whether the conduct that she alleges “arguably” or “potentially” falls within the purview of the NLRA. It is well-established that, after the expiration of a CBA and before negotiations reach impasse, an employer is required to maintain the terms and conditions of employment as set forth in the expired agreement. Laborers Health & Welfare Trust v. Advanced Lightweight Concrete, 779 F.2d 497, 500 (9th Cir.1985), aff'd, 484 U.S. 539, 108 S.Ct. 830, 98 L.Ed.2d 936 (1988); Peerless Roofing Co. v. NLRB, 641 F.2d 734, 735 (9th Cir.1981). Consequently, “an employer’s failure to honor the terms and conditions of an expired collective bargaining agreement pending negotiations on a new agreement constitutes bad faith bargaining in breach of sections 8(a)(1), 8(a)(5) and 8(d) of the [NLRA].” Laborers, 779 F.2d at 500. Thus, a claim that alleges conduct that constitutes a violation of the terms of a CBA after expiration, but before impasse, is preempted under the NLRA. Id. After impasse, an employer is free unilaterally to implement terms and conditions of employment, provided, however, that the terms were reasonably comprehended in the offers made to" }, { "docid": "3116138", "title": "", "text": "NLRA. To establish intentional infliction of emotional distress, Richardson would be required to prove that Kruchko’s “conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality.” Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145, 148 (1974). As the district court noted, the only allegation in the complaint that would support a conclusion that Kruchko’s provision of legal advice was outrageous is that it advised the hospital to commit an unfair labor practice in violation of NLRA § 8(a). Thus, Richardson’s claims are in essence artfully pleaded unfair labor practice charges. They fall at the heart of the NLRB’s exclusive jurisdiction — determinations as to whether an employer’s conduct constitutes an unfair labor practice under NLRA § 8 and whether an employee’s actions are protected under NLRA § 7. Adjudication of the claims would require a court to pass on the legality under the NLRA of precisely the same conduct that is presently before the NLRB, and would risk frustration of national labor policy through inconsistent state-law judgments— precisely the evils that Garmon preemption seeks to avoid. “In cases where, as here, the substance of the dispute is the same under both state and federal law, the state law must yield to the jurisdiction of the NLRB.” Parker v. Connors Steel Co., 855 F.2d 1510, 1518 (11th Cir.1988). “[W]hen the same controversy may be presented to the state court or the NLRB, it must be presented to the Board.” Sears, Roebuck, 436 U.S. at 202, 98 S.Ct. at 1760. That the instant claims sound in tort, whereas the administrative action before the NLRB involves allegations of statutory violations of NLRA § 8(a), is beside the point. The Supreme Court has emphasized that mere labels are not relevant in the labor preemption context; rather, labor preemption is “ 'concerned] ... with delimiting areas of conduct which must be free from state regulation if national policy is to be left unhampered.’ ” Local 100, United Ass’n of Journeymen v. Borden, 373 U.S. 690, 698, 83 S.Ct. 1423, 1428, 10 L.Ed.2d 638 (1963) (quoting Garmon," } ]

[ { "docid": "12244393", "title": "", "text": "SWYGERT, Chief Judge. Two preliminary motions have been filed in this case. One is a motion to dismiss under Rule 12(d) of the Federal Rules of Civil Procedure, 28 U.S.C.A., and alternatively under Rule 56(b) for summary judgment of dismissal. The other is a motion to transfer this case to the United States District Court for the Northern District of Illinois under the provisions of Section 1404(a) of the Judicial Code of the United States, 28 U.S.C. § 1404(a). These motions were heard and submitted simultaneously. Section 1404(a) was drafted in accordance with the doctrine of forum non conveniens and permits the transfer of the cause to another forum if such transfer makes the trial of the case easy, expeditious and inexpensive, that is, more convenient for the parties and witnesses. Since these are the factors that must be considered, it would seem proper for the Court to rule on the motion to transfer venue only in the event it is decided that a trial is necessary. Therefore the Court should determine first the jurisdictional questions raised by the motion to dismiss or alternatively for summary judgment of dismissal. Although a serious question is presented by the motion to dismiss with respect to the application of the doctrine of res judicata even though the prior litigation in Chicago between these parties was termináted by an order of dismissal upon jurisdictional grounds, that question is not reached for the reason that the Court in any event is without jurisdiction to determine the claims of the plaintiffs. The gravamen of the plaintiffs’ complaint in the instant case is that the Brotherhood of Railroad Trainmen refused reinstatement only to those members of UROC who were active in that organization and that the Brotherhood offered and did accept back those members of UROC who were not active in that organization. Plaintiffs say this constitutes discrimination and that their discharge by the employer is a violation of Section 2, Eleventh (a) of the Railway Labor Act, 45 U.S.C.A. § 152, since the cause of their non-membership in the Brotherhood of Railroad Trainmen is not the" } ]

[ { "docid": "3422321", "title": "", "text": "decision by the transferee court. McCrystal v. Barnwell Cty., South Carolina, 422 F.Supp. 219 (S.D.N.Y.1976); Goodman v. Fleischmann, 364 F.Supp. 1172, 1176 (E.D.Pa.1973). This Court has jurisdiction concerning claims involving federal security law violations. 15 U.S.C. § 77v(a) and § 78aa. The same is true of the .District Court in Maryland. Moreover, venue would be proper in both Courts. Maryland would be a proper court for trial inasmuch as both Monumental and Trust are Maryland corporations and have their principal place of business in Baltimore and the conduct complained of arose there. Venue also properly lies in this District inasmuch as plaintiff received proxy, registration and prospectus statements in this state. Prior to 1948, a court employing the principle of forum non conveniens would dismiss an action even though brought in the proper district, if trial in that district would create gross inconvenience to the litigants and witnesses. The drastic result of dismissing a case was ameliorated in 1948 by the enactment of 28 U.S.C. § 1404(a) which provides: For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought. In determining the appropriateness of transferring actions, the courts have developed a number of criteria. The court’s discretion under section 1404(a) is broader than under the forum non conveniens doctrine, but the criteria applicable under the statute are substantially those developed under the older doctrine. These include: (1) the convenience to parties; (2) the convenience of witnesses; (3) the relative ease of access to sources of proof; (4) the availability of process to compel attendance of unwilling witnesses; (5) the cost of obtaining willing witnesses; (6) the practical problems indicating where the case can be tried more expeditiously and inexpensively; and (7) the interests of justice, a term broad enough to cover the particular circumstances of each case, which in sum indicate that the administration of justice will be advanced by a transfer. Schneider v. Sears, 265 F.Supp. 257, 263 (S.D.N.Y.1967) (footnotes deleted). Quoted in McCrystal v. Barnwell Cty.," }, { "docid": "22173191", "title": "", "text": "in determining venue, it does not control. The determinative factors are set out in the statute: residence of the parties or situs of the claim. We hold that Montana venue is proper under either factor. An argument based on convenience alone is more appropriate in a § 1404 change of venue motion. Transfer or dismissal in favor of a more convenient forum lie within the discretion of the trial court and we consider that issue in the next section. III. Denial of Motion to Transfer Edison argues that, even if venue was technically proper in Montana, the trial court erred in denying Edison’s motion to transfer. We review the district court’s denial of transfer motion for an abuse of discretion. J-R Distributors, Inc. v. Eikenberry, 725 F.2d 482, 485 n. 3 (9th Cir.1984), rev’d. on other grounds sub nom., Brocket v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985). 28 U.S.C. § 1404(a) provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” This statute partially displaces the common law doctrine of forum non conveniens. Miskow v. Boeing Co., 664 F.2d 205, 207, (9th Cir.1981), cert. denied, 455 U.S. 1020, 102 S.Ct. 2717, 72 L.Ed.2d 138 (1982) (the statute only applies to transfers between federal district courts). Nonetheless, forum non conve-niens considerations are helpful in deciding a § 1404 transfer motion. In the former case a court must balance the preference accorded plaintiffs choice of forum with the burden of litigating in an inconvenient forum. Mizokami Bros. of Arizona v. Mobay Chemical Corp., 660 F.2d 712, 718 (8th Cir.1981); Continental Oil Co. v. Atwood & Morrill Co., 265 F.Supp. 692, 699 (D.Mont.1967). The defendant must make a strong showing of inconvenience to warrant upsetting the plaintiff’s choice of forum. Id. As part of this inquiry, the court should consider private and public interest factors affecting the convenience of the forum. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 102 S.Ct. 252," }, { "docid": "3102113", "title": "", "text": "Cir.2000) (internal citation omitted). A motion to transfer venue under § 1404(a) requires the court to weigh multiple factors in its determination whether transfer is appropriate in a particular case. Id. For example, the court may consider: (1) the plaintiffs choice of forum, (2) the convenience of the witnesses and parties, (3) the familiarity of the forum with the applicable law, (4) the ease of access to evidence, (5) the parties’ contacts with the chosen forum, and (6) the differences in the costs of litigation. See id. at 498-99; see also Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir.1986). 1. Plaintiffs choice of forum There is a strong presumption in favor of the plaintiffs -choice of forum. Ravelo Monegro v. Rosa, 211 F.3d 509, 513 (9th Cir.2000). Here, much of the operative events — the pirating of DIRECTV’S signals — occurred in California. Moreover, the plaintiffs corporate headquarters are located within this district, in El Segundo, California. See, e.g., Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1335 (9th Cir.1984) (holding that a showing of inconvenience by a plaintiff who has sued in his home forum will normally outweigh the inconvenience a defendant may show). The Court finds that this factor weighs against transferring the instant case to Florida. 2. Convenience of the witnesses and parties Many of the parties and witnesses reside in California. For example, DIRECTV, Taylor Patterson, GBR, OnTeeh, Paypal, and Cardservice International are all located in California. Although Florida'may be more convenient for the Worleys and EQ Stuff, that is not the case for the other-parties and witnesses. At best, the defendants’ motion to transfer venue would serve to “merely shift rather than eliminate the inconvenience.” Decker Coal Co., 805 F.2d at 843. The Court finds that this factor weighs against transferring the instant case to Florida. 3. Familiarity of the forum with the applicable law The familiarity of the Court with the relevant issues of a case is one of the “practical problems that make trial- of a case easy, expeditious and inexpensive.” Id.; see also Jones, 211 F.3d at" }, { "docid": "22411045", "title": "", "text": "even today. In 1947, in Gilbert, the Supreme Court firmly established in the federal courts the common-law doctrine of forum non conveniens. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 248, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (noting that “the doctrine of forum non conveniens was not fully crystallized” until Gilbert). The essence of the forum non conveniens doctrine is that a court may decline jurisdiction and may actually dismiss a case, even when the case is properly before the court, if the case more conveniently could be tried in another forum. Gilbert, 330 U.S. at 507, 67 S.Ct. 839. Shortly after the Gilbert decision, in 1948, the venue transfer statute became effective. The essential difference between the forum non conveniens doctrine and § 1404(a) is that under § 1404(a) a court does not have authority to dismiss the case; the remedy under the statute is simply a transfer of the case within the federal system to another federal venue more convenient to the parties, the witnesses, and the trial of the case. Thus, as the Supreme Court has said, “Congress, by the term ‘for the convenience of parties and witnesses, in the interest of justice,’ intended to permit courts to grant transfers upon a lesser showing of inconvenience.” Norwood, 349 U.S. at 32, 75 S.Ct. 544. That § 1404(a) venue transfers may be granted “upon a lesser showing of inconvenience” than forum non conveniens dismissals, however, does not imply “that the relevant factors [from the forum non conveniens context] have changed or that the plaintiffs choice of [venue] is not to be considered.” Id. But it does imply that the burden that a moving party must meet to justify a venue transfer is less demanding than that a moving party must meet to warrant a forum non conveniens dismissal. And we have recognized as much, noting that the “heavy burden traditionally imposed upon defendants by the forum non conveniens doctrine — dismissal permitted only in favor of a substantially more convenient alternative — was dropped in the § 1404(a) context. In order to obtain a new federal" }, { "docid": "23441767", "title": "", "text": "there obtained would not be res judicata as to him. Under these circumstances, there is no reason to stay this suit. A different situation would be presented for consideration had Kung appeared in the Delaware action — a prospect vaguely hinted by his counsel as likely to occur, but which still remains only a hint. The motion for a stay is denied. The further alternative motion for a transfer of this action. The defendant further alternatively moves pursuant to 28 U.S.C., section 1404(a) for an order transferring this action to the United States District Court for the Southern District of Texas, Houston Division, where he resides. The section itself sets forth as the general guidelines to be applied in determining an application thereunder (1) the convenience of parties, (2) the convenience of witnesses, and (3) the interests of justice. While the court’s discretion under this section is broader than under the doctrine of forum non conveniens, the criteria are substantially those that were applied under that doctrine as enunciated in the leading case of Gulf Oil Corp. v. Gilbert, except that the plaintiff’s choice of forum, formerly “rarely [to] be disturbed,” is now of diminished significance, although it is still to be considered. These factors include (1) relative ease of access to sources of proof; (2) availability of process to compel attendance of unwilling witnesses; (3) cost of obtaining willing witnesses; (4) possibility of view of premises, if appropriate to the issues; (5) practicality of where the case can be tried more expeditiously, inexpensively and with relative ease; and (6) the interests of justice, a term broad enough to cover the variant circumstances of each individual case, which in sum reflect that the administration of justice will be advanced by a transfer. At the outset it must be recognized that all litigation imposes burdens and inconveniences upon the parties involved and their witnesses to a greater or lesser degree, varying from case to case. But mere inconvenience, interference with one’s normal activities, or such other dislocations which follow in the wake of a lawsuit do not by themselves make the" }, { "docid": "23476991", "title": "", "text": "in which two cities •the District Court for the Eastern District of Kentucky sits * * * that jury schedules at -both Richmond and Lexington made early trial possible.” The net result of the facts in the typical case selected by the Court is this: So far as the witnesses are concerned, it would be more convenient to try the case in Pittsburgh. So far as the parties are concerned, there seems to be no reason not to\" take them at their word, which means that it would be more convenient for the defendant to try the case in Pittsburgh and for the plaintiff to try it in Philadelphia. To the extent that it is “in the interest of justice” to try a case where most of the witnesses are within the reach of subpoena and in a court where it is likely to be tried sooner, it would -be better to try it in Pittsburgh. Do these considerations require this Court, in the discretion given it by Section 1404(a), to transfer the case to the Western District, having in mind the plaintiffs’ choice of this District? The answer, it seems to me, depends upon whether -Congress intended the power, conferred by Section 1404(a), to transfer (rather than dismiss) cases to be exercised without -regard to the doctrine forum non -conveniens or whether the limitations of that -doctrine on the Court’s -discretion were meant -to remain. I say this, because the mere balancing of convenience in the present cases would probably influence me to transfer them, whereas if my discretion must be exercised within the -limits of forum non conveniens I cannot do so. The doctrine forum non conveniens requires the moving party to show a great deal more than merely that it would be more convenient to try the case in a different jurisdiction. In Williams v. Green Bay & W. R. Co, 326 U.S. 549, 554, 66 S. Ct. 284, 287, 90 L.Ed. 311, the Court “to put the rule of forum lion conveniens in proper perspective” said, “It was designed as -an ‘instrument of justice.’ Maintenance -of" }, { "docid": "690311", "title": "", "text": "§ 1404(a) provides for transfer “to a more convenient forum, not to a forum likely to prove equally convenient or inconvenient.” Van Dusen v. Barrack, supra; American Standard Inc. v. Bendix Corp., 487 F.Supp. 254 (W.D.Mo.1980). The most important factor in passing on a motion for transfer under § 1404(a) is the convenience of witnesses. American Standard, Inc. v. Bendix Corp., supra at 262; 15 Wright, Miller & Cooper, Federal Practice and Procedure, § 3851, l.c 264 (1976). However, the moving party must make a specific showing of the necessary witness and what their testimony will be. The affidavit submitted by the defendant has failed to meet this burden. The defendant has simply made a bold assertion that CAC and EDA personnel which are likely to be defense witnesses are located in Washington, D.C. Moreover, whether a case should be transferred in the interest of justice requires several considerations including, relative ease of access to sources of proof, availability of the compulsory process for attendance of unwilling witnesses, and all other practical considerations that make the trial of the case easier, expeditious and inexpensive. ROC, Inc. v. Progress Drillers, Inc., 481 F.Supp. 147 (W.D.Okl.1979). The defendant contends that the documents relevant to this litigation .are in Washington, D.C. and that Washington is within 100 miles of Maryland. However, this Court agrees with the plaintiffs that the defendant has shown nothing more than that a transfer would shift any possible inconvenience from the defendant to the plaintiffs. After reviewing the entire record in this case the Court finds that defendant’s motion for a change of venue should be denied. Therefore: IT IS ORDERED that the defendant’s motion to transfer this action to the United States District Court for the District of Maryland or to the United States District Court for the District of Columbia be and it is hereby DENIED." }, { "docid": "12584970", "title": "", "text": "1404(a) to another district or division, where it “might have been brought,” the court must consider whether the interests of the convenience of the witnesses and parties, as well as the interest of justice are served thereby. The movant seeking transfer pursuant to § 1404(a) has the burden of establishing, by reference to particular circumstances and by a preponderance of the evidence, that the transferee forum is clearly more convenient and that transfer is proper. Davidson v. Exxon Corporation, 778 F.Supp. 909, 911 (E.D.La. 1991). “[T]he defendant must make a convincing showing of the right to have the case transferred since § 1404(a) provides for transfer ‘to a more convenient forum, not to a forum likely to prove equally convenient or inconvenient.’ ” Southern Investors II v. Commuter Aircraft Corporation, 520 F.Supp. 212, 218 (M.D.La.1981), quoting Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964). When considering a motion to transfer pursuant to § 1404(a), federal courts have considered a number of factors outside the three enumerated in the statute. Some of these factors are: location of counsel; the location of books and records; ease of access to proof; where the case can be tried expeditiously and inexpensively; the cost of obtaining attendance of witnesses and other trial expenses; the place of the alleged wrong, the possibility of delay and prejudice if transfer is granted; and the plaintiff’s choice of forum. This last factor is very influential and should rarely be disturbed unless the balance is strongly in the defendant’s favor. Eddy v. Inland Bay Drilling & Workover, Inc., 784 F.Supp. 370, 375 n. 10 (S.D.Tex.1992); see also Sorrels Steel Company, Inc. v. Great Southwest Corp., 651 F.Supp. 623, 628 (S.D.Miss.1986). However, the general rule that the plaintiff’s choice of forum is not to be disturbed does not obtain where it is clearly outweighed by other factors. Howell v. Tanner, 650 F.2d 610, 616 (5th Cir.1981), cert. denied, 456 U.S. 919, 102 S.Ct. 1777, 72 L.Ed.2d 180 (1982). Once the court determines that transfer to a district other than that selected by the plaintiff would" }, { "docid": "955958", "title": "", "text": "venue would be proper since defendant lives within that district, 28 U.S.C. § 1391(a), and defendant acknowledges that he would be subject to process in that district. This Court must now determine whether a transfer is justified under the balance of the language of § 1404(a), that is, for “the convenience of parties and witnesses” and “in the interest of justice.” The power of a court to transfer pursuant to § 1404(a) has its roots in the doctrine of forum non conveniens. In Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), the Supreme Court outlined the factors to be evaluated in determining whether forum non conveniens should apply in a particular case: An interest to be considered and the one most likely to be most pressed, is the private interest of the litigant. Important considerations are the relative case of access to proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious, and inexpensive. Id. at 508, 67 S.Ct. at 843. In addition, the Gilbert court stated that “factors of public interest” were applicable, including congested court dockets and the appropriateness of having trial of a diversity case in the forum at home with the law which will govern the case. Id. at 508-09, 67 S.Ct. at 843. The grant of power to transfer under § 1404(a) did not effect a codification of the doctrine of forum non conveniens. While the same factors relevant to forum non conveniens should be considered a lesser showing of inconvenience need be shown to justify transfer pursuant to § 1404(a). Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789 (1955); Mead Corp. v. Oscar J. Boldt Const. Co., 508 F.Supp. 193, 197 (S.D. Ohio 1981) (Mead Corp.). This Court has carefully examined the Gilbert factors, the applicable precedent, and the memoranda and affidavits of the parties to this" }, { "docid": "10926161", "title": "", "text": "ease of access to sources of proof; 2) Availability of compulsory process for attendance of unwilling witnesses; 3) Cost of attendance at trial by willing witnesses; 4) The possibility of view of the premises, if appropriate; 5) All other practical problems that make trial of a case easy, expeditious, and inexpensive; 6) “Public interest” factors, including the relative congestion of court dockets, choice of law considerations, and the relation of the community in which the courts and jurors are required to serve to the occurrences that give rise to the litigation. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). In weighing these factors in regard to a § 1404(a) transfer motion, a lesser showing of inconvenience is required than when considering dismissal on forum non conveniens grounds. Norwood, supra, 349 U.S. at 31-32, 75 S.Ct. at 546. In this case, three factors make transfer appropriate: (1) the convenience of witness es, a factor of relative ease of access to sources of proof; (2) the cost of attendance of willing witnesses, and; (3) the “public interest” factor of conservation of scarce judicial resources. The convenience of witnesses weighs heavily towards a determination to transfer. In this case, both liability and damages are at issue. It will be helpful to examine the convenience of liability witnesses separately from the convenience of damage witnesses, since liability witnesses may be considered of higher quality and their convenience given more weight. Schmidt v. Leader Dogs for the Blind, 544 F.Supp. 42 (E.D.Pa.1982) (“damage testimony would become relevant only if plaintiffs were to succeed on liability”); Bartolacci v. Corp. of Presiding Bishops of Church of Jesus Christ of Latter-Day Saints, 476 F.Supp. 381, 383 (E.D.Pa.1979); see also, Leinberger v. Webster, 66 F.R.D. 28, 35 (E.D.N.Y.1975). Most of the liability witnesses would find a Florida trial more convenient. Plaintiff Kahhan argues that testimony of employees of the Holiday Inn where plaintiff was interviewed will be necessary to prove liability. Plaintiff’s Supplemental Memorandum at 4 [Docket # 29], but since the defendant admits that they rented rooms at the" }, { "docid": "12282872", "title": "", "text": "California. Hence it cannot be doubted that jurisdiction and venue would be proper as to all defendants in the Central District of California, and the Court must therefore consider whether a transfer to that district is appropriate. Plaintiffs’ choice of forum is entitled to some deference from a court considering a motion to transfer. Accordingly, the burden of proof is on the movant to demonstrate why the forum should be changed. Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir.1966). As this Court has previously stated: The movant has the burden of making a strong case for transfer and if the transfer would merely shift inconvenience from one party to the other, or if the balance of all factors is but slightly in favor of the movant, plaintiff’s choice of forum should not be disturbed and transfer should be denied. Grey v. Continental Marketing Associates, Inc., 315 F.Supp. 826, 831 (N.D.Ga. 1970). In determining whether a movant has met his burden and a transfer is appropriate, courts have considered a variety of factors. See generally Annot., 1 A.L.R. Fed. 15 (1969). Defendants have cited two cases involving alleged violations of federal securities laws, which set forth general criteria to be considered on a motion to transfer under section 1404(a), and which the Court believes provide a good starting point for its analysis in the instant case. In Schneider v. Sears, 265 F.Supp. 257, 263 (S.D.N.Y.1967), the court noted the following factors derived from the common law doctrine of forum non conveniens: (1) the convenience to parties; (2) the convenience of witnesses; (3) the relative ease of access to sources of proof; (4) the availability of process to compel attendance of unwilling witnesses; (5) the cost of obtaining willing witnesses; (6) the practical problems indicating where the case can be tried more expeditiously and inexpensively; and (7) the interests of justice, a term broad enough to cover the particular circumstances of each case, which in sum indicate that the administration of justice will be advanced by a transfer. In Blender v. Sibley, 396 F.Supp. 300, 302 (E.D.Pa.1975), the district court" }, { "docid": "12578405", "title": "", "text": "preponderance of the evidence that the proposed transfer will better and more conveniently serve the interests of the parties and witnesses and better promote the interests of justice.” Helsel v. Tishman Realty & Constr. Co., Inc., 198 F.Supp.2d 710, 711 (D.Md.2002) (internal quotation omitted); see also Lynch v. Vanderhoef Builders, 237 F.Supp.2d 615, 617 (D.Md. 2002). In order to satisfy this burden, the defendant should submit, for example, affidavits from witnesses and parties involved that explain the inconvenience and hardship they “would suffer if the case were heard in the plaintiffs chosen forum.” Dow v. Jones, 232 F.Supp.2d 491, 499 (D.Md.2002) (citing Helsel, 198 F.Supp.2d at 712). Mere assertions of inconvenience or hardship, without more, are insufficient to sustain a motion to dismiss or to transfer pursuant to § 1404(a). See Dow, 232 F.Supp.2d at 499; Helsel, 198 F.Supp.2d at 712. In deciding a motion to transfer venue under § 1404(a), the court must “weigh in the balance a number of case-specific factors.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). The host of convenience factors a court should consider include: (1) the plaintiffs choice of forum; (2) relative ease of access to sources of proof; (3) availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining attendance of willing and unwilling witnesses; (4) possibility of a view of the premises, if appropriate; (5) enforceability of a judgment, if one is obtained; (6) relative advantage and obstacles to a fair trial; (7) other practical problems that make a trial easy, expeditious, and inexpensive; (8) administrative difficulties of court congestion; (9) local interest in having localized controversies settled at home; (10) appropriateness in having a trial of a diversity case in a forum that is at home with the state law that must gov- era the action; and (11) avoidance of unnecessary problems with conflicts of laws. Brown v. Stallworth, 235 F.Supp.2d 453, 456 (D.Md.2002) (quoting Choice Hotels Int'l, Inc. v. Madison Three, Inc., 23 F.Supp.2d 617, 622 n. 4 (D.Md.1998) (internal citations omitted)). The decision whether to" }, { "docid": "18037785", "title": "", "text": "all parties have consented.” 28 U.S.C. § 1404(a). The § 1404(a) factors apply as much to transfers between divisions of the same district as to transfers from one district to another. A motion to transfer venue pursuant to § 1404(a) should be granted if “the mov-ant demonstrates that the transferee venue is clearly more convenient,” taking into consideration (1) “the relative ease of access to sources of proof’; (2) “the availability of compulsory process to secure the attendance of witnesses”; (3) “the cost of attendance for willing witnesses”; (4) “all other practical problems that make trial of a case easy, expeditious and inexpensive”; (5) “the administrative difficulties flowing from court congestion”; (6) “the local interest in having localized interests decided at home”; (7) “the familiarity of the forum with the law that will govern the case”; and (8) “the avoidance of unnecessary problems of conflict of laws [or in] the application of foreign law”. Volkswagen II, 545 F.3d at 315. Applying those eight factors, the district court concluded that five were neutral, one was inapplicable, one “weighted] against transfer,” and one weighed “slightly” in favor of a transfer. After “balancing] ... the relevant factors,” the district court ruled that “Radmax ha[d] not shown that the Tyler Division is clearly more convenient than the Marshall Division” and correspondingly denied the motion to transfer. We begin by revisiting the district court’s analysis of the Gilbert factors. First, the court reasoned that “[although the events and parties are in the Tyler Division, the Tyler and Marshall Divisions have roughly equal access to sources of proof,” because “there will not be any significant inconvenience to the parties if they had to transport documents or other evidence to Marshall, Texas as compared to the Tyler Division.” Any such inconvenience may well be slight, but, as we clarified in Volkswagen II, the question is relative ease of access, not absolute ease of access. Volkswagen II, 545 F.3d at 316 (“That access to some sources of proof presents a lesser inconvenience now than it might have absent recent developments does not render this factor superfluous.”). Thus, because" }, { "docid": "10617562", "title": "", "text": "Apache from claims asserted against it for roof failures. Stepan requests that the court transfer this case to the United States District Court for the Northern District of Illinois under 28 U.S.C. § 1404(a), which authorizes the court, “for the convenience of the parties and witnesses, and in the interests of justice,” to transfer an action to any district in which it could have been brought. There is no question but that this action could have been brought in the Illinois district court. The question, therefore, is whether the requested transfer would serve the convenience of the parties and witnesses, and be in the interests of justice. A decision on these issues requires that the court balance the parties’ competing interests and is guided by a number of factors which have been identified as relevant in considering requests for transfer. These factors are: (1) the relative ease of access to sources of proof; (2) the availability of compulsory process, where necessary, over witnesses; (3) the cost of obtaining witnesses for attendance at trial; (6) the administrative difficulties of the courts; (7) the local interest of the controversy, and the imposition of jury duty on citizens residing in a community having no relation to the litigation; (8) the propriety of having the action tried in a forum “at home” with the state law governing the ease; (9) the plaintiffs choice of forum; (10) the possibility that trial in the original forum will result in inconvenience, vexation, oppression, or harassment of the defendants; and (11) all other practical problems that make the trial of a case easy, expeditious, and inexpensive. Fullman v. AAA Cooper Transp. Co., 732 F.Supp. 54, 55 (N.D.Miss.1990) (quoting Radio Santa Fe, Inc. v. Sena, 687 F.Supp. 284, 287 (E.D.TX 1988)). The court’s task is to weigh these factors and to determine whether, on balance, the proposed transferee district will provide a more convenient forum for the litigation. The court’s analysis of these factors proceeds from the initial premise that the plaintiffs choice of forum is entitled to “great weight, especially if the forum [it] chooses is in the" }, { "docid": "21833569", "title": "", "text": "that, “in ruling on defendants’ motion, the plaintiffs choice of venue should not be lightly disturbed.” 55 F.3d at 879 (citation omitted). The Third Circuit goes on to recognize that, [i]n ruling on § 1404(a) motions, courts have not limited their consideration to the three enumerated factors in § 1404(a) (convenience of parties, convenience of witnesses, or interests of justice), and, indeed, commentators have called on the courts to “consider all relevant factors to determine whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum.” Id. (citation omitted). The Court then describes some of the “many variants of the private and public interests protected by the language of § 1404(a).” Id. The private interests have included: plaintiffs forum of preference as manifested in the original choice; the defendant’s preference; whether the claim arose elsewhere; the convenience of the parties as indicated by their relative physical and financial condition; the convenience of the witnesses—but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and the location of books and records (similarly limited to the extent that the files could not be produced in the alternative forum). The public interests have included: the enforceability of the judgment; practical considerations that could make the trial easy, expeditious, or inexpensive; the relative administrative difficulty in the two fora resulting from court congestion; the local interest in deciding local controversies at home; the public policies of the fora; and the familiarity of the trial judge with the applicable state law in diversity cases. Id. (citations omitted) (emphasis added). B. Analysis 'With the above “jurisdictional guideposts” in mind, the court turns to the “difficult issue of federal comity” that transfer motions present. E.E.O.C. v. Univ. of Pa., 850 F.2d 969, 975 (3d Cir. 1988). Plaintiffs do not challenge that venue would also be proper in the District of New Jersey. As such, the court does not address this further. See 28 U.S.C. § 1404(a); (D.I. 73) Both Delaware and New Jersey are legitimate forums" }, { "docid": "3182894", "title": "", "text": "lawsuit which weigh in favor of transferring it to Massachusetts, and those which favor allowing plaintiffs’ choice of forum to stand undisturbed. The factors to be considered have been recited many times but the basic enunciation is ultimately traced to Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), where Mr. Justice Jackson, although discussing the principle of forum non conveniens, set forth analytical guidelines which are equally applicable to transfer determinations made under § 1404(a). Cf. Van Dusen v. Barrack, 376 U.S. 612, 645, 84 S.Ct. 805, 824, 11 L.Ed.2d 945 (1964). The factors relevant to the instant case are (1) plaintiffs’ choice of forum; (2) relative ease of access to sources of proof; (3) the cost of obtaining attendance of willing witnesses; and (4) practical considerations in making the trial easy, expeditious and inexpensive. See also Goodman v. Fleischmann, supra, 364 F.Supp. at 1175. In plaintiffs’ individual action I determined that the balance of convenience favored the present forum, but on the present motion this action differs in two relevant respects — class relief is requested and additional defendants have been impleaded. The joinder of the St. Louis corporation and former directors of ASI who now reside in Missouri and Florida does move the center of convenience somewhat farther from the Eastern District of Pennsylvania although clearly not in the direction of Massachusetts. No motion to transfer has been filed requesting a change of venue to either Florida or Missouri, and consequently, I must strike the balance of convenience only between the Massachusetts and Pennsylvania forums as sites for the trial. Since the Massachusetts forum is not significantly less inconvenient geographically than Philadelphia as to these defendants, I find that their joinder does not alter the balance struck in the individual action favoring plaintiffs’ choice of forum. The class action nature of this suit, however, is a factor which I must give greater weight than the joinder of additional defendants in deciding the transfer issue. In rendering my decision on the transfer motion in the individual action I recognized plaintiffs’ choice of" }, { "docid": "13448668", "title": "", "text": "resolve the issue), we may proceed to consider the petition for writ of mandamus. Section 1404(a), the transfer-of-venue provision, provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” The statute “was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper.” Van Dusen v. Barrack, 376 U.S. 612, 634 n. 30, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) (quoting Revisor’s Note, H.R.Rep. No. 80-308, at A132 (1947), and H.R.Rep. No. 79-2646, at A127 (1946)). “Congress, in passing § 1404(a), was primarily concerned with the problems arising where, despite the propriety of the plaintiffs venue selection, the chosen forum was an inconvenient one.” Id. at 634, 84 S.Ct. 805. This action “might have been brought” in Northern California, see 28 U.S.C. § 1391(a)(1), and Apple contends that the district court clearly abused its discretion in refusing to transfer the case. We have declined to offer an “exhaustive list of specific factors to consider” in making the transfer decision, see Terra Int’l, Inc. v. Miss. Chem. Corp., 119 F.3d 688, 691 (8th Cir.1997), but district courts should weigh any “case-specific factors” relevant to convenience and fairness to determine whether transfer is warranted. See Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988); Terra Int’l, 119 F.3d at 691. An important issue in this case is the deference owed to Luxpro’s choice of fo rum. In denying Apple’s motion, the district court stated that “[i]n general, federal courts give considerable deference to the plaintiffs choice of forum,” and ruled that it would “not disregard the deference provided Luxpro because it brought its claim in a forum that was not its residence nor the place where the conduct occurred when a U.S. forum with those two connections does not exist.” This court has said that “[i]n general, federal courts give considerable deference to a plaintiffs choice of forum and" }, { "docid": "2637983", "title": "", "text": "the claim occurred.” 28 U.S.C. § 1391(a)(2). A plaintiff may properly bring a copyright claim in any district where the defendant “may be found.” 28 U.S.C. § 1400(a). Section 1404(a) provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” “To prevail on a motion to transfer venue under § 1404, ‘the defendant must show by a preponderance of the evidence’ that the proposed transfer will better and more conveniently serve the interests of the parties and witnesses and better promote the interests of justice.” Helsel v. Tishman Realty & Constr. Co., Inc., 198 F.Supp.2d 710, 711 (D.Md.2002)(internal quotation omitted). See also Lynch v. Vanderhoef Builders, 237 F.Supp.2d 615, 617 (D.Md.2002); Dicken v. United States, 862 F.Supp. 91, 92 (D.Md.1994). In order to satisfy this burden, the defendant should submit affidavits from witnesses and parties involved that explain the inconvenience and hardship he “would suffer if the case were heard in the plaintiffs chosen forum.” Dow v. Jones, 232 F.Supp.2d 491, 499 (D.Md.2002)(eiting Helsel, 198 F.Supp.2d at 712). Mere assertions of inconvenience or hardship, without more, are insufficient to sustain a motion to dismiss or to transfer pursuant to § 1404(a). See Dow, 232 F.Supp.2d at 499; Helsel, 198 F.Supp.2d at 712. In deciding a motion to transfer venue under § 1404(a), the court must “weigh in the balance a number of case-specific factors.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). The host of convenience factors a court should consider include: (1) the plaintiffs choice of forum; (2) relative ease of access to sources of proof; (3) availability of compulsory process for attendance of unwilling witnesses, and the cost of obtaining attendance of willing and unwilling witnesses; (4) possibility of a view of the premises, if appropriate; (5) enforceability of a judgment, if one is obtained; (6) relative advantage and obstacles to a fair trial; (7) other practical problems that make a trial easy, expeditious, and inexpensive;" }, { "docid": "9695083", "title": "", "text": "states: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” 28 U.S.C. § 1404(a). “Section 1404(a) affords the district court broad discretion to adjudicate motions to transfer based upon a case-by-case review of convenience and fairness.” Pehr v. Sunbeam Plastics Corp., 874 F.Supp. 317, 321 (D.Kan.1995). “A moving defendant bears the burden of proving that the facts weigh heavily in favor of transfer because the plaintiff’s choice of forum is given great weight.” Id. The court considers the following factors: [T]he plaintiffs choice of forum; the accessibility of witnesses and other sources of proof, including the availability of compul sory process to insure attendance of witnesses; the cost of making the necessary proof; questions as to the enforceability of a judgment if one is obtained; relative advantages and obstacles to a fair trial; difficulties that may arise from congested dockets; the possibility of the existence of questions arising in the area of conflict of laws; the advantage of having a local court determine questions of local law; and, all other considerations of a practical nature that make a trial easy, expeditious and economical. Chrysler Credit Corp., 928 F.2d at 1516. After consideration of these factors, the court concludes that defendant has not met its burden on this issue. In particular, defendant has not shown a disproportionate difficulty or inconvenience in securing potential non-party witnesses. The court is not convinced that the inconvenience to defendant of litigating this case in Kansas outweighs the corresponding inconvenience to plaintiff of litigating the case in St. Louis. Rather, a transfer would only shift the inconveniences to plaintiff, and, accordingly, the court will not interfere with plaintiffs legitimate choice of forum. See Pehr, 874 F.Supp. at 321. IT IS THEREFORE ORDERED BY THE COURT THAT defendant’s motion to dismiss for lack of jurisdiction or, in the alternative, for transfer of venue is denied. IT IS SO ORDERED. . In accordance with the applicable standard, the facts are related in the light most" }, { "docid": "12198295", "title": "", "text": "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 50 * * *” . Rule 56(e) as amended in 1963, provides: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials in his pleading, hut his response * * * must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. (Emphasis added.) . Dismissal of an action because of forum non conveniens is proper in the circumstances here despite 28 U.S.C. § 1404(a) which provides: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” The section was enacted “to relieve against what was apparently thought to be the harshness of dismissal, under the doctrine of forum non conveniens.” Hoffman v. Blaski, 363 U.S. 335, 335-336, 80 S.Ct. 1084, 1085, 4 L.Ed.2d 1254 (1960). The Revisor’s Note to the section states that it was drafted “in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though venue is proper. * * * [It] requires the court to determine that the transfer is necessary for convenience of the parties and witnesses, and further, that it is in the interest of justice to do so.” Section 1404(a) has thus codified and replaced the doctrine of forum non conveniens for cases when the more convenient forum is another United States District Court. The doctrine is nevertheless still vital in federal law and is applicable to a case which cannot be saved by a § 1404(a) transfer because no other district court would have jurisdiction over the action and, indeed, which should have been brought in a foreign jurisdiction in any event. When the doctrine is applied in such an instance, the principles" } ]

[ { "docid": "16209834", "title": "", "text": "would be unable to provide relief unless the admission of that confession into evidence harmed Inthavong. See Arizona v. Fulminante, 499 U.S. 279, 306-12, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (applying to the admission of coerced confessions the rule of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), that constitutional errors that are harmless beyond a reasonable doubt do not justify reversing a conviction). A The California Court of Appeal held that admitting the confession did not harm Inthavong. Since Mitchell v. Esparza, 540 U.S. 12, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003), it has been clear that under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), we must defer to such holding unless it was in “conflict with the reasoning or the holdings of [Supreme Court] precedent” or if it “applied harmless-error review in an ‘objectively unreasonable’ manner.” Id. at 17, 18, 124 S.Ct. 7; see also Medina v. Hornung, 386 F.3d 872, 878-79 (9th Cir.2004). If we determine under AEDPA that the state court’s harmless error holding is contrary to Supreme Court precedent or objectively unreasonable, then no deference is owed. We revert to the independent harmless error analysis that we would apply had there been no state court holding. Cf. Caliendo v. Warden of California Men’s Colony, 365 F.3d 691, 695 (9th Cir.2004) (“We agree that the state court’s analysis was framed erroneously and grant the habeas petition based on our independent review of the record.”); Fernandez v. Roe, 286 F.3d 1073, 1077 (9th Cir.2002) (“Because the California state courts applied an incorrect legal standard, contrary to federal law as pronounced in Batson, we review petitioner’s Batson claims de novo.”). Such independent harmless error analysis is described in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993): errors are harmless if they do not have a “substantial and injurious effect or influence in determining the jury’s verdict.” Id. at 637, 113 S.Ct. 1710 (internal quotation marks and citation omitted). Admittedly the Second Circuit has done away with the Brecht standard in light of AEDPA and Esparza," } ]

[ { "docid": "11864639", "title": "", "text": "Bond’s guilt. The District Court applied the AEDPA standard of review. See 28 U.S.C. § 2254(d)(l)-(2). It held that the state courts did not apply governing law unreasonably in holding harmless any Confrontation Clause violation. The Commonwealth does not contest the existence of error under the Confrontation Clause. It renews its argument, however, that any error was harmless. We thus turn to the same question posed to the District Court. But our analysis differs somewhat in light of Fry v. Pliler, 551 U.S. - — •, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007), which the Supreme Court issued after the District Court’s opinion. Fry instructs us to perform our own harmless error analysis under Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), rather than review the state court’s harmless error analysis under the AEDPA standard. See Fry, 127 S.Ct. at 2328. The Supreme Court explained in Brecht that an error is harmless if it did not have “substantial and injurious effect or influence in determining the jury’s verdict.” 507 U.S. at 637, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). “Under this standard, habeas petitioners may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can establish that it resulted in actual prejudice.” Id. (quotation marks omitted). “When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury’s verdict, that error is not harmless.” O’Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (quotation marks omitted). We conclude here that the error was harmless under Brecht. The prosecutor’s conduct raises serious questions as to his willingness to respect Bond’s rights under the Confrontation Clause. Yet, the Commonwealth presented such extensive evidence of Bond’s guilt that the error could not have had a substantial and injurious effect or influence in determining the jury’s verdict. Kim, who had" }, { "docid": "1497240", "title": "", "text": "687-38, 113 S.Ct. 1710. Pursuant to Brecht, a constitutional error is not harmless if it “had substantial and injurious effect or influence in determining the jury’s verdict.” 507 U.S. at 631, 113 S.Ct. 1710 (quoting Kotteakos, 328 U.S. at 776, 66 S.Ct. 1239). Although Brecht further states that habeas petitioners “are not entitled to habeas relief based on trial error unless they can establish that it resulted in ‘actual prejudice,’ ” 507 U.S. at 637, 113 S.Ct. 1710 (citation omitted), the Supreme Court in O’Neal v. McAninch, 513 U.S. 432, 438, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995), clarified that this language “is not determinative,” and that petitioners do not bear an affirmative burden of proof as the language suggests. Instead, “it [is] conceptually clearer for the judge to ask directly, ‘Do I, the judge, think that the error substantially influenced the jury’s decision?’ than for the judge to try to the put the same question in terms of proof burdens (e.g., ‘Do I believe the party has borne its burden of showing ... ?’).” O’Neal, 513 U.S. at 436-37, 115 S.Ct. 992. Uncertainty in answering this question, moreover, militates in favor of the habeas petitioner. “When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had ‘substantial and injurious effect or influence in determining the jury’s verdict,’ that error is not harmless. And, the petitioner must win.” Id. at 436, 115 S.Ct. 992. The O’Neal Court explained that “[b]y ‘grave doubt’ we mean that, in the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.” Id. at 435, 115 S.Ct. 992. An error of constitutional magnitude will therefore satisfy Brecht if we determine that it “had a substantial and injurious effect or influence in determining the jury’s verdict,” or if we find ourselves in “grave doubt” about that determination. See Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239 (“If [the error itself had substantial influence], or if one is left in grave doubt, the conviction cannot" }, { "docid": "23569668", "title": "", "text": "determining the jury’s verdict.” Id. at 623, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); see also Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007) (Brecht governs harmlessness determinations in habeas corpus proceedings). Under this standard, we may reverse if we have “grave doubt” about the harmlessness of an error; in turn, “grave doubt” exists only where the case appears “so evenly balanced that [the court] feels [itself] in virtual equipoise as to the harmlessness of the error.” O’Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). Precedent confirms that the government is correct. “Interests of comity and federalism, as well as ‘the State’s interest in the finality of convictions that have survived direct review within the state court system,’ mandate a more deferential standard of review in evaluating [Mr. Matthews’s] claim.” Crease v. McKune, 189 F.3d 1188, 1193 (10th Cir.1999) (quoting Brecht, 507 U.S. at 635, 113 S.Ct. 1710). Therefore, following Brecht, on collateral review we ask only whether the extraneous material to which the jury was exposed had a “substantial and injurious effect” on the verdict. Fry, 127 S.Ct. at 2328; see also Malicoat v. Mullin, 426 F.3d 1241, 1250 (10th Cir.2005). When conducting this inquiry, we must also bear in mind the Supreme Court’s admonition that “[t]he substance of ... ex parte communications and their effect on juror impartiality are questions of historical fact” on which the state trial court’s findings are entitled to deference. Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983). On the record before us, we cannot conclude that Juror # 2’s conversation with Mr. DeHaven, however inappropriate, substantially influenced the jury’s sentence of death. This is not a case in which the question of harm or harmlessness is evenly balanced. Mr. Matthews argues that the information Mr. DeHaven communicated to Juror # 2 could have affected the verdict in the penalty stage by removing any residual doubt Juror #2 harbored about Mr. Matthews’s guilt, and" }, { "docid": "8014036", "title": "", "text": "F.3d 687, 690-91 (7th Cir.2003); cf. Medina v. Hornung, 386 F.3d 872, 877-78 (9th Cir.2004) (holding that “even if the state court’s decision was contrary to, or an unreasonable application of, clearly established federal law, habeas relief may still be denied absent a showing of prejudice”); Saiz v. Burnett, 296 F.3d 1008, 1012 (10th Cir.2002) (same). As mentioned earlier, we agree that the trial court erred in excluding Jones’ sole evidence of remorse. However, we cannot grant Jones a writ of habeas corpus unless the error was harmless, and, on collateral review, we must apply a more stringent harmless error standard than the Chapman standard. See Fullwood v. Lee, 290 F.3d 663, 679 (4th Cir.2002). The Supreme Court applied this heightened standard, derived from Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), to federal habeas cases in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), and clarified it in O’Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). Under this standard, the habeas petitioner will be entitled to relief only if a habeas court is “in grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury’s verdict.” O’Neal, 513 U.S. at 436, 115 S.Ct. 992 (internal quotation marks and citation omitted). The proper inquiry is not “merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.” Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239. This is a more demanding standard than that set forth in Chapman, and is born of respect for the finality of state court convictions “that have survived direct review,” and concerns of comity, federalism, and the relitigation of claims on collateral review. See Brecht, 507 U.S. at 635, 113 S.Ct. 1710. In analyzing whether error is harmless under this standard, we must look to “the impact of" }, { "docid": "11343141", "title": "", "text": "jury’s verdict.’ ” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). We “apply the Brecht test without regard for the state court’s harmlessness determination.” Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir.2010) (citing Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007)). The Brecht standard has been described as follows: [I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir.2011) (quoting Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239). ‘Where the record is so evenly balanced that a judge ‘feels himself in virtual equipoise as to the harmlessness of the error’ and has ‘grave doubt about whether an error affected a jury [substantially and injuriously], the judge must treat the error as if it did so.’ ” Id. (quoting O’Neal v. McAninch, 513 U.S. 432, 435, 437-38, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)) (alteration in original) (internal quotations omitted). Of course, here, the underlying error is the absence of a jury itself. Accordingly, the Brecht inquiry is whether the absence of a jury as factfinder at the penalty stage “substantially and injuriously” affected or influenced the outcome. In other words, we ask whether a rational jury could have found that the facts called for leniency. In order to determine whether Murdaugh has met the Brecht standard, we review the aggravating and mitigating factors. a) Aggravating factors The Arizona Supreme Court held that the (F)(1) aggravating factor fell outside the Ring rule and concluded that the government had proven the (F)(6) aggravating factor beyond a reasonable doubt. Murdaugh does" }, { "docid": "7209806", "title": "", "text": "collateral attacks pose to “finality, comity, and federalism,” Fry v. Pliler, 551 U.S. 112, 116, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007), habeas petitioners may secure the writ only if the error “actually] prejudice[d]” them, Brecht, 507 U.S. at 637, 113 S.Ct. 1710 (quoting United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986)) (internal quotation marks omitted). In making this determination, courts ask whether the error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Id. (quoting Kotteakos, 328 U.S. at 776, 66 S.Ct. 1239) (internal quotation marks omitted). In the “unusual” situation where “the matter is so evenly balanced that [the habeas judge] feels himself in virtual equipoise as to the harmlessness of the error [under Brecht ]” — 'that is, where the judge is in “grave doubt” — the court must grant the writ. O’Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). The Supreme Court recently addressed the relationship between the Chapman direct review standard, AEDPA’s deference requirement, and the Brecht collateral review standard. In Fry, the question before the Court was whether habeas courts should apply the AEDPA/Chapman test (asking whether a state court unreasonably applied Chapman’s direct review standard), the Brecht test (asking whether a constitutional error had a substantial and injurious effect), or both. See Fry, 551 U.S. at 119-20,127 S.Ct. 2321. The Court made two critical determinations. First, it held that “in § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the [Brecht ] standard ..., whether or not the state appellate court recognized the error and reviewed it for harmlessness under [Chapman].” Fry, 551 U.S. at 121-22, 127 S.Ct. 2321 (emphasis added) (citations omitted). Second, the Court stated that “it certainly makes no sense to require formal application of both tests (AEDPA/Chapman and Brecht) when the latter obviously subsumes the former.” Id. at 120, 127 S.Ct. 2321. That is to say, where an error is harmful under Brecht, any state court decision declaring it harmless must have" }, { "docid": "2226643", "title": "", "text": "(2003) (citing Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). “[T]he state court’s decision must have been more than incorrect or erroneous ... [it] must have been ‘objectively unreasonable.’ ” Id. at 520-21, 123 S.Ct. 2527 (citing Williams, 529 U.S. at 409, 120 S.Ct. 1495). If we find that the state court erred, we still must determine whether the error is a structural defect “in the constitution of the trial mechanism, which def[ies] analysis by ‘harmless-error’ standards.” Arizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). If it is not a structural error, then we apply the harmless-error standard articulated in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), and in O’Neal v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). Under the harmless-error test, relief is only proper if the error “had substantial and injurious effect or influence in determining the jury’s ver- diet.” Brecht, 507 U.S. at 623, 113 S.Ct. 1710 (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); see also Fry v. Pliler, — U.S. -, 127 S.Ct. 2321, 2327-28, 168 L.Ed.2d 16 (2007). A ‘“substantial and injurious effect’ exists when the court finds itself in ‘grave doubt’ about the effect of the error on the jury’s verdict.” Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir.2006) (citing O’Neal, 513 U.S. at 436, 115 S.Ct. 992). There is “grave doubt” when the issue of harmlessness “is so evenly balanced that [the court] feels [itself] in virtual equipoise as to the harmlessness of the error.” O’Neal, 513 U.S. at 435, 115 S.Ct. 992. If the state court did not decide the claim on the merits, the stringent principles of deference under 28 U.S.C. § 2254 are inapplicable. Mitchell v. Gibson, 262 F.3d 1036, 1045 (10th Cir.2001). Additionally, if the district court’s factual findings are entirely dependent on the state court record, our review of those findings is de novo. Smallwood, 191 F.3d at 1265 n. 1. III. Ineffective Assistance of Counsel" }, { "docid": "7209805", "title": "", "text": "resources on “questions that have no effect on the outcome of the case,” Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009), and we minimize the threat to good adjudication that arises when courts enter into thorny constitutional areas with inadequate briefing or in fact-bound dispositions, see id. at 819-20. Assuming arguendo that the state court erred in rejecting Bauberger’s claim does not end our inquiry, however. “[M]ost constitutional errors can be harmless,” including those of the kind we shall assume occurred at Bauberger’s trial. Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); see, e.g., Fullwood v. Lee, 290 F.3d 663, 678-83 (4th Cir.2002) (third-party influence on juror and jurors’ consideration of extraneous evidence subject to harmless error review). On direct review, the government has the burden of proving that a constitutional error was “harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). On collateral review, however, the calculus changes. Because of the threat collateral attacks pose to “finality, comity, and federalism,” Fry v. Pliler, 551 U.S. 112, 116, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007), habeas petitioners may secure the writ only if the error “actually] prejudice[d]” them, Brecht, 507 U.S. at 637, 113 S.Ct. 1710 (quoting United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986)) (internal quotation marks omitted). In making this determination, courts ask whether the error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Id. (quoting Kotteakos, 328 U.S. at 776, 66 S.Ct. 1239) (internal quotation marks omitted). In the “unusual” situation where “the matter is so evenly balanced that [the habeas judge] feels himself in virtual equipoise as to the harmlessness of the error [under Brecht ]” — 'that is, where the judge is in “grave doubt” — the court must grant the writ. O’Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). The Supreme Court recently addressed the relationship between the Chapman direct review standard, AEDPA’s deference" }, { "docid": "11343140", "title": "", "text": "of fact would determine that the mitigating circumstances were sufficiently substantial to call for leniency.” Id. at 946. If, in future Ring error cases, the court could not answer this question in the affirmative,' it would remand the case for resentencing by a jury. Id. The state challenged the Arizona Supreme Court’s application of the harmless error test, arguing that this application of harmless error review, which included review of the mitigating factors for harmless error, was beyond the scope of the constitutional error articulated in Ring II. See Nordstrom, 77 P.3d at 46 n. 5. The Arizona Supreme Court rejected this argument, and the Supreme Court denied certiorari. See Arizona v. Pandeli, 540 U.S. 962, 124 S.Ct. 386, 157 L.Ed.2d 304 (2003). Thus, it is now well-settled that Ring error is subject to the harmless error test articulated in Ring III, and we may not reconsider the issue here. C) Harmless Error Review Harmless error analysis requires federal courts to determine “whether the error ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). We “apply the Brecht test without regard for the state court’s harmlessness determination.” Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir.2010) (citing Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007)). The Brecht standard has been described as follows: [I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. Merolillo v. Yates, 663 F.3d 444, 454 (9th Cir.2011) (quoting Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239). ‘Where the record is so" }, { "docid": "23585959", "title": "", "text": "(2d Cir.) (per curiam), cert. denied sub nom., Bibbins v. New York, 513 U.S. 901, 115 S.Ct. 261, 130 L.Ed.2d 181 (1994). We must therefore determine what standard we must use in reviewing the Michigan Supreme Court’s application of harmless error review. Pre-AEDPA Supreme Court precedent originally held that constitutional errors occurring in the state trial court require reversal unless the government could prove the error “harmless beyond a reasonable doubt.” See generally Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In 1993 the Supreme Court in Brecht v. Abrahamson specifically held that Chapman no longer applied to federal habeas review of state court harmless error decisions, although state courts would still be required to apply that standard on direct review. Instead, on habeas review, federal courts were to grant the writ where eonstitu-tional “trial” errors, as opposed to “structural” errors not amenable to harmless error review, were demonstrated to have “‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht, 507 U.S. at 638, 113 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" }, { "docid": "13144270", "title": "", "text": "influence. Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239. Where the record is so evenly balanced that a judge “feels himself in virtual equipoise as to the harmlessness of the error” and has “ ‘grave doubt’ about whether an error affected a jury [substantially and injuriously], the judge must treat the error as if it did so.” O’Neal v. McAninch, 513 U.S. 432, 435, 437-38, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (quoting Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239). The government argues that the appropriate standard of review for harmless error is instead derived from this court’s holding in Inthavong v. Lamarque, 420 F.3d 1055, 1059 (9th Cir.2005), which analyzed the Supreme Court’s ruling in Mitchell v. Esparza, 540 U.S. 12, 17-18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003). Inthavong required, “(1) that the state court’s decision was ‘contrary to’ or an ‘unreasonable application’ of Supreme Court harmless error precedent, and (2) that the petitioner suffered prejudice under Brecht from the constitutional error.” 420 F.3d at 1059 (emphasis added). In Fry v. Pliler, however, the Supreme Court squarely addressed the harmless error standard to be applied by a federal habeas court and held that Brecht is the applicable test. 551 U.S. at 121, 127 S.Ct. 2321. In Pulido v. Chrones, we reaffirmed that under Fry, “we need not conduct an analysis under AEDPA of whether the state court’s harmlessness determination on direct review ... was contrary to or an unreasonable application of clearly established federal law,” and held that “we apply the Brecht test without regard for the state court’s harmlessness determination.” 629 F.3d 1007, 1012 (9th Cir.2010) (citing Fry, 551 U.S. at 119-22, 127 S.Ct. 2321). In light of Fry and Pliler, we hold that the Brecht “substantial and injurious effect” standard governs our harmless error review in this case. For the reasons discussed below, we conclude that under the Brecht standard, Merolillo is entitled to habeas relief. We further conclude that even if Merolillo were also required to satisfy the AEDPA/Chapman standard, he would, as the state court’s determination that the error was harmless beyond a" }, { "docid": "13084899", "title": "", "text": "crime. Once that promise was made, Ms. Sharp’s subsequent incriminating statements were involuntary because she had been told she would not go to jail for her involvement. The trial court therefore erroneously admitted those statements at trial in violation of the Fifth and Fourteenth Amendments. See Toles, 297 F.3d at 965. 3. The State Supreme Court’s Error was not Harmless a. Legal background A trial court’s erroneous decision to admit an involuntary confession into evidence is subject to harmless error analysis. Fulminante, 499 U.S. at 295, 111 S.Ct. 1246. “[I]n § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the ‘substantial and injurious effect’ standard” articulated in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Fry v. Pliler, 551 U.S. 112, 121, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). Under Brecht, “an error is harmless unless it ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Id. at 116, 127 S.Ct. 2321 (quoting Brecht, 507 U.S. at 631, 113 S.Ct. 1710). “ ‘The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather whether the error itself had substantial influence.’ ” Crease v. McKune, 189 F.3d 1188, 1193 (10th Cir.1999) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)) (alterations omitted). “When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had ‘substantial and injurious effect or influence in determining the jury’s verdict,’ ” the error is harmful and the court must grant the writ. O’Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995); see also id. at 435, 115 S.Ct. 992 (“By ‘grave doubt’ we mean that, in the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.”). Analyzing harmlessness under Brecht, “does not involve a judge who shifts a ‘burden’ to" }, { "docid": "19330075", "title": "", "text": "harmless beyond a reasonable doubt. 386 U.S. at 24, 87 S.Ct. 824. The Court has also repeatedly made clear, however, that the standards that apply on collateral review may differ from those that would apply on direct review. See Brecht, 507 U.S. at 634, 113 S.Ct. 1710. To that end, the Court has held that a federal court on collateral review of a state appellate court’s application of Chapman should not apply the same harmless error standard but instead should use an “actual prejudice” standard. Id. at 637, 113 S.Ct. 1710 (quoting United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986)) (internal quotation marks omitted). Specifically, as the Court explained in Brecht v. Abrahamson, a habeas petitioner in such a case must show that the error “had substantial and injurious effect or influence in determining the jury’s verdict.” Id. (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)) (internal quotation marks omitted). That was the law before Congress intervened. In 1996, Congress passed AEDPA, which provides that a habeas petition may not be granted unless the state court’s 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). In Mitchell v. Esparza, 540 U.S. 12, 18-19, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam), the Court applied the AEDPA standard to a state court’s use of Chapman, explaining that “when a state court determines that a constitutional violation is harmless [under Chapman ], a federal court may not award habeas relief under § 2254 unless the harmlessness determination itself was unreasonable.” Fry, 551 U.S. at 119, 127 S.Ct. 2321 (describing Mitchell). Four years later, the Court returned to this field in Fry v. Pliler. In Fry, the state courts had not applied Chapman to determine whether a constitutional error at trial was harmless. See id. at 115, 127 S.Ct. 2321. Without overruling Esparza, the Court ruled that the Brecht standard still governs, regardless of whether the state court" }, { "docid": "18997109", "title": "", "text": "328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). Under this standard, however, the petitioner should prevail whenever the record is 'so evenly balanced that a conscientious judge is in grave doubt as to the harmlessness of the error.' O’Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). As this court has explained, 'if our minds are \"in virtual equipoise as to the harmlessness” under the Brecht standard, of the error, then we must conclude that it was harmful.’ Woods v. Johnson, 75 F.3d 1017, 1026-27 (5th Cir.1996) (quoting O'Neal, 513 U.S. at 435, 115 S.Ct. 992, 130 L.Ed.2d 947).” Robertson v. Cain, 324 F.3d 297, 304-05 (5th Cir.2003). The fact that the trial court and the TCCA, on direct review of Horn’s case, found only that there had been no constitutional error and did not address whether any such error was harmless, does not preclude our use of the Brecht standard. In a recent case, the United States Supreme Court stated: \"We hold that in § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the 'substantial and injurious effect’ standard set forth in Brecht, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353, whether or not the state appellate court recognized the error and reviewed it for harmlessness under the ‘harmless beyond a reasonable doubt’ standard set forth in Chapman, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.” Fry v. Pliler, - U.S. -, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007). Accordingly, assuming a confrontation right error, the question we would face is whether that error \"had a 'substantial and injurious effect or influence in determining the jury’s verdict.’ ” Robertson, 324 F.3d at 307 (quoting Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993)). Because of our holding that the TCCA’s determination that the challenged procedures did not violate Horn’s confrontation rights was not contrary to, and did not constitute an unreasonable application of, clearly established federal law as determined by the Supreme Court," }, { "docid": "8684133", "title": "", "text": "the scope of conduct that could qualify as first degree murder by expanding and separating definitions of premeditation, deliberation and willfulness, should be applied to Babb’s conviction, which was not final at the time Byford was decided. III. Harmless Error Although the Nevada state court unreasonably applied established federal law when it failed to apply the change in Byford to Babb, “a court must assess the prejudicial impact of constitutional error in a state court criminal trial.” Fry v. Pliler, 551 U.S. 112, 121, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). We must ask whether there is a reasonable probability the error “ ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). “[W]here the record is so evenly balanced that a conscientious judge is in grave doubt as to the harmlessness of an error,” the petitioner must win. O’Neal v. McAninch, 513 U.S. 432, 437, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). The district court in this case concluded that the general verdict prevented it from determining whether the erroneous Kazalyn instruction had influenced the jury in Babb’s case, and said that it harbored “grave doubts” concerning the harmlessness of the error. The State claims that rather than apply the Brecht standard to assess the effect and influence of the erroneous instruction, the district court essentially treated the error here as a structural error, thus violating the Supreme Court’s recent holding in Hedgpeth v. Pulido, 555 U.S. 57, 129 S.Ct. 530, 172 L.Ed.2d 388 (2008), that instructional errors occurring in the context of a general verdict must still be reviewed for harmless error. Instructional errors are generally subject to harmless error review. Neder, 527 U.S. at 7, 119 S.Ct. 1827; California v. Roy, 519 U.S. 2, 5, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996) (per curiam); Pope v. Illinois, 481 U.S. 497, 501, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987). General verdicts, however, which permit a" }, { "docid": "13144269", "title": "", "text": "Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007) (citing Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)); Bains v. Cambra, 204 F.3d 964, 977 (9th Cir.2000). Habeas relief is warranted only if the error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637-38, 113 S.Ct. 1710 (invoking the harmless error test in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)) (internal quotation marks omitted); DePetris v. Kuykendall, 239 F.3d 1057, 1061 (9th Cir.2001). The Supreme Court has explained: [I]f one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239. Where the record is so evenly balanced that a judge “feels himself in virtual equipoise as to the harmlessness of the error” and has “ ‘grave doubt’ about whether an error affected a jury [substantially and injuriously], the judge must treat the error as if it did so.” O’Neal v. McAninch, 513 U.S. 432, 435, 437-38, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (quoting Kotteakos, 328 U.S. at 765, 66 S.Ct. 1239). The government argues that the appropriate standard of review for harmless error is instead derived from this court’s holding in Inthavong v. Lamarque, 420 F.3d 1055, 1059 (9th Cir.2005), which analyzed the Supreme Court’s ruling in Mitchell v. Esparza, 540 U.S. 12, 17-18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003). Inthavong required, “(1) that the state court’s decision was ‘contrary to’ or an ‘unreasonable application’ of Supreme Court harmless error precedent, and (2) that the petitioner suffered prejudice under Brecht from the constitutional error.” 420 F.3d at 1059 (emphasis added). In Fry v. Pliler," }, { "docid": "23569667", "title": "", "text": "as the conversation did only after the guilt phase’s completion. Ultimately, both the trial court and the OCCA concluded that Juror # 2’s misbehavior was harmless, even with respect to the penalty phase proceedings, because Mr. Matthews “failed to prove he was actually prejudiced from this inappropriate conversation.” Matthews, 45 P.3d at 913. The parties disagree about what standard we should apply when reviewing this determination. Mr. Matthews would have us ask “whether there exists a reasonable possibility that the external influence of information affected the verdict,” United States v. Simpson, 950 F.2d 1519, 1522 (10th Cir.1991), a standard we have applied on direct appeal when reviewing the district court’s refusal to grant a new trial based on allegations the jury was prejudiced by extraneous material. The government, by contrast, believes that, because this case comes to us on collateral review, we should apply Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), and so ask whether Juror # 2’s improper communication had a “substantial and injurious effect or influence in determining the jury’s verdict.” Id. at 623, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); see also Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007) (Brecht governs harmlessness determinations in habeas corpus proceedings). Under this standard, we may reverse if we have “grave doubt” about the harmlessness of an error; in turn, “grave doubt” exists only where the case appears “so evenly balanced that [the court] feels [itself] in virtual equipoise as to the harmlessness of the error.” O’Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). Precedent confirms that the government is correct. “Interests of comity and federalism, as well as ‘the State’s interest in the finality of convictions that have survived direct review within the state court system,’ mandate a more deferential standard of review in evaluating [Mr. Matthews’s] claim.” Crease v. McKune, 189 F.3d 1188, 1193 (10th Cir.1999) (quoting Brecht, 507 U.S. at 635, 113 S.Ct. 1710). Therefore, following Brecht," }, { "docid": "13084900", "title": "", "text": "at 631, 113 S.Ct. 1710). “ ‘The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather whether the error itself had substantial influence.’ ” Crease v. McKune, 189 F.3d 1188, 1193 (10th Cir.1999) (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)) (alterations omitted). “When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had ‘substantial and injurious effect or influence in determining the jury’s verdict,’ ” the error is harmful and the court must grant the writ. O’Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995); see also id. at 435, 115 S.Ct. 992 (“By ‘grave doubt’ we mean that, in the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.”). Analyzing harmlessness under Brecht, “does not involve a judge who shifts a ‘burden’ to help control the presentation of evidence at a trial, but rather involves a judge who applies a legal standard (harmlessness) to a record that the presentation of evidence is no longer likely to affect.” Id. at 437, 115 S.Ct. 992 (quoting R. Traynor, The Riddle of Harmless Error 26 (1970)). The State was required to prove Ms. Sharp’s guilt beyond a reasonable doubt. We must decide whether we have grave doubt that the State would have met its burden if the inadmissible evidence had been properly suppressed. b. Brecht analysis Ms. Sharp was convicted for felony murder under Kan. Stat. Ann. § 21-3401(b) (2006) (repealed 2011), which stated, “Murder in the first degree is the killing of a human being committed: ... (b) in the commission of, attempt to commit, or flight from an inherently dangerous felony.” Kan. Stat. Ann. § 21-3436(a)(l) (2006) (repealed 2011) defined inherently dangerous felonies to include kidnapping. Kansas law defined kidnapping as “the taking or confining of any person, accomplished by force, threat or deception, with the intent to hold" }, { "docid": "433989", "title": "", "text": "and the evidence corroborating it, the decision to admit it was harmless error. We review the district court’s determination de novo. Brecht v. Abrahamson, 507 U.S. 619, 642, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (Stevens, J. concurring). “Erroneous admission of a non-testifying co-defendant’s out of court statement is a trial-type error subject to harmless error analysis. See Arizona v. Fulminante, 499 U.S. 279, 306-07, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).” Laboa v. Calderon, 224 F.3d 972, 976 (9th Cir.2000) (other citation omitted). Under the controlling standard of Brecht, “alleged constitutional errors warrant a grant of the habeas petition only if ‘in light of the record as a whole,’ the error had a ‘substantial and injurious effect or influence in determining the jury verdict.’ ” Id. at 977, (quoting Brecht, 507 U.S. at 638, 113 S.Ct. 1710, quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). Under this standard of review: [T]he question is, not were [the jurors] right in their judgment, regardless of the error or its effect upon the verdict. It is rather what effect the error had or reasonably may be taken to have had upon the jury’s decision.... The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. Kotteakos, 328 U.S. at 764-65, 66 S.Ct. 1239. Under this standard, an error is harmless unless the “record review leaves the conscientious judge in grave doubt about the likely effect of an error on the jury’s verdict ... [i.e.,] that, in the judge’s mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error.” O’Neal v. McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995); see also United States v. Hitt, 981 F.2d 422, 425 n. 2 (9th Cir.1992) (stating that “Kotteakos defines ‘fair assurance [of harmlessness]’ as absence of a ‘grave doubt.’ ”). Padilla argues that the admission of Somerville’s confession was not" }, { "docid": "8852326", "title": "", "text": "context of other evidence presented in order to determine [the effect it had on the trial].” Id. Structural defects “in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards!,]” id. at 309, 111 S.Ct. 1246, “require! ] automatic reversal of the conviction because they infect the entire trial process.” Brecht v. Abrahamson, 507 U.S. 619, 629-30, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citing Fulminante, 499 U.S. at 309, 111 S.Ct. 1246). Prior to the AEDPA, in reviewing petitions for habeas relief with respect to constitutional “trial” errors, we determined whether a constitutional violation was harmless error by asking whether the error “‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht, 507 U.S. at 623, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). Under this standard, however, “where the record [was] so evenly balanced that a conscientious judge is in grave doubt as to the harmlessness of the error,” the petitioner would prevail. O’Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995). “We recognize[d] ... that if our minds are ‘in virtual equipoise as to the harmlessness,’ under the Brecht standard, of the error, then we must conclude that it was harmful.” Woods v. Johnson, 75 F.3d 1017, 1026-27 (5th Cir.1996) (citing O’Neal, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)). There is a division among circuits as to whether the Brecht-O’Neal standard survived the AEDPA. The Sixth Circuit has held that “the test set out by the Supreme Court in Kotteakos and explicitly reiterated in Brecht quite precisely captures Congress’s intent as expressed in the AEDPA and, therefore, continues to be applicable.” Nevers v. Killinger, 169 F.3d 352, 371 (6th Cir.1999). The Eighth Circuit has noted, however, that, even in the wake of the Supreme Court’s decision in Williams, it is “not convinced that the AEDPA did not abrogate the requirement that federal ha-beas courts conduct a harmless error analysis under Brecht.” Whitmore v. Kemna, 213 F.3d 431, 433 (8th Cir.2000). The Tenth" } ]

[ { "docid": "1363327", "title": "", "text": "Pension Fund loan. In October 1959, Strate applied for a $2,325,000 Pension Fund loan “to build an addition to” the Fontainebleau. During these negotiations, Strate made a number of misrepresentations to the Pension Fund Board. Between March 1960 and November 1961, Pelican received $3,350,000 in Pension Fund construction loan proceeds but only about $3,104,000 was used on the new construction. Over $200,000 was used by Strate for stock purchases, repayment of loans and payments to himself. The Government offered evidence to support its claim that almost $50,000 can be traced through Dranow and Weinblatt into “the Sun Valley bail out.” WAS THE EVIDENCE SUFFICIENT TO ESTABLISH THE CONSPIRACY AND THE CONNECTION OF EACH DEFENDANT WITH IT? The Government had the burden to prove that the defendants conspired to and did devise a scheme to defraud the Pension Fund by submitting false and fraudulent representations and concealing material facts from the Pension Fund trustees and staff in order to obtain Pension Fund loans. It also had the burden of showing that defendants used the mail and wire services in aiding the execution of the scheme. The burden also rested on the Government to demonstrate that the central object of the conspiracy was to obtain money for the purpose of “bailing out” Sun Valley, and that each defendant had knowledge of the conspiracy and scheme. United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 123; Direct Sales Co. v. United States, 319 U.S. 703, 711, 63 S.Ct. 1265, 87 L.Ed. 1674. Each defendant strongly insists that the evidence did not establish the existence of such a scheme and further argues that even conceding the existence of such a scheme or conspiracy, the evidence did not connect him with it. Although the Government was required to establish one conspiracy rather than a series of separate conspiracies, Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557, the fact that a conspiracy’s various members may play different roles in executing it, and have dissimilar motives for participating in it, does not mean that a single conspiracy does not" } ]

[ { "docid": "23020920", "title": "", "text": "the transactions, but merely “acquiesced to the importunities of the informer.” Citing several cases from other circuits, he asserts that “[t]o sustain a conspiracy conviction there must be ‘more than suspicion, more than knowledge, acquiescence, carelessness, indifference, or lack of concern.’ ” See, e.g., United States v. Townsend, 924 F.2d 1385, 1392-93 (7th Cir.1991). He also contends the reviewing court should not lightly infer defendant’s knowledge of and acquiescence in a conspiracy. See United States v. Hernandez-Palacios, 838 F.2d 1346, 1348 (5th Cir.1988). While we will not presume a defendant’s involvement in a conspiracy, we have long held that “the common plan or purpose may be inferred from a combination of circumstances.” Savaiano, 843 F.2d at 1293 (citing Jordan v. United States, 370 F.2d 126 (10th Cir.1966), cert. denied, 386 U.S. 1033, 87 S.Ct. 1484, 18 L.Ed.2d 595 (1967)). Once the existence of a conspiracy is shown, “ ‘[t]he Connection of the defendant to the conspiracy need only be slight, if there is sufficient evidence to establish that connection beyond a reasonable doubt.’ ” Savaiano, 843 F.2d at 1294. While the evidence shows Mr. Mendoza played only a limited role in the illegal activity, he “ ‘knowingly contributed his efforts in furtherance [of the conspiracy].’ ” Savaiano, 843 F.2d at 1293 (quoting United States v. Andrews, 585 F.2d 961, 974 (10th Cir.1978)) (emphasis omitted). Without Mr. Mendoza’s aid, the drug exchange might not have transpired. See United States v. Manzella, 791 F.2d 1263, 1265 (7th Cir.1986) (conspiracy conviction upheld based on defendant’s essential role as broker which ultimately was “helpful to the consummation of the [cocaine] transaction”). From the extent of Mr. Mendoza's participation in and apparent knowledge of the distribution scheme, a jury could properly conclude he was an integral link in the sale of cocaine. IV. EVIDENTIARY OBJECTIONS Next, Mr. Mendoza argues the district court abused its discretion by allowing into evidence cocaine and assorted firearms seized during the search of co-conspirator Garcia’s residence. Defendant claims this evidence was irrelevant to his conspiracy charge and highly prejudicial. On appeal, we review a district court’s decision to admit or" }, { "docid": "23446653", "title": "", "text": "Cir. 1977). D. Proof of Conspiracy. To prove a conspiracy, the evidence must show that each of the appellants was involved. A meeting of the minds must be demonstrated. United States v. Peterson, 549 F.2d 654 (9th Cir. 1977). Mere association and activity with a conspiracy is insufficient. United States v. Basurto, 497 F.2d 781, 793 (9th Cir. 1974). However, a formal agreement between the appellants is not necessary. United States v. Camacho, 528 F.2d 464, 469 (9th Cir. 1976). The agreement may be inferred from the appellants’ acts pursuant to the fraudulent scheme or other circumstantial evidence. United States v. Anderson, 532 F.2d 1218 (9th Cir. 1976). During the company’s existence, some appellants joined and others withdrew from the enterprise. Nevertheless, the scheme was a single ongoing conspiracy. “[E]ach participant in the conspiracy need not know what other participants are doing, or why.” United States v. Jones, 425 F.2d 1048, 1051 (9th Cir. 1970). Once a conspiracy is proved, “slight evidence is all that is required to connect a defendant with the conspiracy.” Diaz-Rosendo v. United States, 357 F.2d 124, 130 (9th Cir. 1966). Moreover, while each conspirator is part of the conspiracy, he is responsible for his co-conspirators’ acts committed pursuant to and in furtherance of the conspiracy. United States v. Murray, 492 F.2d 178, 187 (9th Cir. 1973). E. The Role of the Appellants in the Scheme. It is clear from the record that numerous misrepresentations were made. The crucial question is whether there was sufficient evidence to link the individual appellants with the scheme for which these representations were made. We conclude there was. 1. Appellants Rogers and Hennig. The record contains ample evidence that Rogers and Hennig participated in a scheme to mislead inventors. From the time he joined the company in December 1971, Rogers played a key role both in advertising and training salesmen. As the chief of contract sales, he was in charge of all advertising. He was responsible for the approval or preparation of numerous advertisements which misrepresented the company’s achievements and capabilities. He played a crucial role in the preparation of" }, { "docid": "23331368", "title": "", "text": "(9th Cir. 1973) (evidence of conspiracy was sufficient even though parties had not finalized specific means for transporting controlled substance into the United States). B. Sufficiency of the Evidence Under the “Slight Evidence” Rule. 1. “Slight Evidence” Rule. It is sometimes said, as the Government here states in its brief, that “ ‘[Ojnce the existence of a conspiracy is clearly established, slight evidence may be sufficient to connect a defendant with it’,’’ quoting from United States v. Knight, 416 F.2d 1181, 1184 (9th Cir. 1969), which in turn quotes from earlier cases. We confess to having repeatedly proliferated, although we did not initiate, this statement, a principle that has become part of the cant in conspiracy cases. The litany is highly misleading if taken out of the context of the particular cases in which it was made. E. g., Fox v. United States, 381 F.2d 125, 129 (9th Cir. 1967); Diaz-Rosendo v. United States, 357 F.2d 124, 130 (9th Cir. 1966), cert. denied, 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83 (1966); United States v. Nunez, supra; and numerous others. So taken, and construed to imply that participation in a criminal conspiracy may be proved by evidence that would be inadequate to prove the commission of some other criminal act, the so-called “slight evidence rule” would vitiate the Government’s ever-present burden of proof, the requirement that guilt must be proved to a moral certainty and beyond a reasonable doubt, the presumption of innocence, the rule that all doubts must be resolved, and equally plausible inferences drawn, in favor of defendants, and other traditional foundations of our nation’s system of criminal justice. Such drama was clearly never so intended. The statement from Knight, quoted above and often quoted elsewhere, obviously was intended to state the substantive law of conspiracy and not the law regarding evidence, burden of proof, or standards of appellate review as to sufficiency of evidence. Indeed, in the very next paragraph of that opinion, supra, the Court further expounded: “It is sufficient if the acts and conduct of a defendant were of such character that the minds" }, { "docid": "23347472", "title": "", "text": "United States v. Hoffa, 367 F.2d 698, 706 et seq. (7th Cir.). Each participant in the conspiracy need not know what other participants are doing, or why. Wood v. United States, 283 F.2d 4 (5th Cir. 1960). The elements of conspiracy may be proved by circumstantial evidence alone. Jordan v. United States, 370 F. 2d 126 (10 Cir. 1966), cert. denied, 386 U.S. 1033, 87 S.Ct. 1484, 18 L.Ed.2d 595. Once a conspiracy is proved, “slight evidence is all that is required to connect a defendant with the conspiracy.” Diaz-Rosendo v. United States, 357 F.2d 124 (9th Cir. 1966), cert. denied, 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83, citing Sabari v. United States, 333 F.2d 1019 (9th Cir. 1964), rehearing denied, July 9 1964. It seems clear to us that the proof in this case was sufficient for the jury to find that a single conspiracy did exist, and that defendant Jones was a knowing participant of it. 2. Evidence of Prior Acts (Appellant’s Argument “J”) If the purpose of the government offer of testimony of acts prior to August 1, 1966 was to suggest the fraud-oriented propensities of the appellant, then, says appellant (Brief, 70), “the error was most prejudicial.” He cites Sang Soon Sur v. United States, 167 F.2d 431 (9th Cir. 1948). This court there said: “The admission of the evidence of independent crimes was error. Its admission cannot be justified under any of the exceptions to the general rule. We fail to perceive any relevancy between an evasion of the payment of income taxes and a conviction for the possession of opium.” Id. p. 432. (Emphasis added.) We agree with the statement of the general rule, i. e., some relevancy must exist between the prior act and the act charged. In United States v. LeVison, 418 F.2d 624 (9th Cir. 1969), we said, quoting United States v. Jiminez-Robles, 415 F.2d 308 (9th Cir. 1969): “Granted, the general rule is, as appellant asserts, that evidence of prior criminal conduct is inadmissible. However, one well established exception to this rule is that such prior criminal conduct" }, { "docid": "23253829", "title": "", "text": "bail pending appeal. . This claim, raised for the first time after trial, is frivolous. To prove a violation of 18 U.S.C. § 1341, the Government need only show that a defendant was one of the participants in a scheme to defraud, and that the mails were used in furtherance of that scheme. See, e. g., United States v. Cyphers, 556 F.2d 630, 632 (2d Cir. 1977); United States v. Finkelstein, 526 F.2d 517, 526-27 (2d Cir. 1975), cert. denied sub nom. Scardino v. United States, 425 U.S. 960, 96 S.Ct. 1742, 48 L.Ed.2d 205 (1976). Similarly, to prove a violation of 18 U.S.C. § 1343, it need only be shown that a defendant was one of the participants in a fraudulent scheme which was furthered by the use of interstate transmission facilities. United States v. Houli- han, 332 F.2d 8, 13 (2d Cir.), cert. denied, 379 U.S. 828, 85 S.Ct. 56, 13 L.Ed.2d 37 (1964). . Appellant contends that a jury charge on multiple conspiracies should have been given because his transactions with the two defrauding suppliers were separate. Even if there were two conspiracies, however, the fact that only a single conspiracy was charged did not and could not have prejudiced the defendant by spillover or otherwise. United States v. Sir Kue Chin, 534 F.2d 1032 (2d Cir. 1976), is sufficiently similar to be dispositive of this claim. It points out, id. at 1035, that single/multiple conspiracy analysis does not apply to the trial of a single defendant. Here, appellant stood trial alone. Moreover, his central role in promoting fraud on his employer by both suppliers negates any suggestion that the jury might have applied the wrong evidence to the conspiracy charge. . Rule 404(b) provides: Evidence of other crimes, wrongs, or acts is not admissible to prove character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Evid. 404(b). Rule 404 essentially codified previously existing Second Circuit law" }, { "docid": "23286549", "title": "", "text": "fraud. U.S. v. Louderman, 576 F.2d 1383, 1387 n. 3 (9th Cir.), cert. denied, 439 U.S. 896, 99 S.Ct. 257, 58 L.Ed.2d 243 (1978). Both provide that \"[w]ho-ever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises [mails or causes to be mailed]/[transmits or causes to be transmitted] for the purpose of executing such scheme or artifice ... shall be fined ... or imprisoned....'' 18 U.S.C. § 1341; 18 U.S.C. § 1343. . In support of its position, the government cites two pre-Maze cases, United States v. Kelem, 416 F.2d 346 (9th Cir.1969), cert. denied, 397 U.S. 952, 90 S.Ct. 977, 25 L.Ed.2d 134 (1970) (finding mail fraud where defendants undertook scheme to sell airline tickets purchased with credit cards, never paying the bills), and Suhl v. United States, 390 F.2d 547 (9th Cir.), cert. denied, 391 U.S. 964, 88 S.Ct. 2035, 20 L.Ed.2d 879 (1968) (holding that check-kiting scheme constituted mail fraud where worthless checks were passed between defendants' bank accounts in separate cities). But their validity is suspect in light of Maze, which disapproved Kelem in particular. See 414 U.S. at 398 n. 2, 94 S.Ct. at 647 n. 2. Furthermore, unlike this case, both Kelem and Suhl involved ongoing schemes that depended upon the delay for their continued success. See Kelem, 416 F.2d at 348; Suhl, 390 F.2d at 549-50. . United States v. Clay, 495 F.2d 700 (7th Cir.), cert. denied, 419 U.S. 937, 95 S.Ct. 207, 42 L.Ed.2d 164 (1974). There must be proof of an agreement \"to accomplish something that constitutes an offense against the United States,” as well as an overt act. United States v. Lichtenstein, 610 F.2d 1272 (5th Cir.), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 856 (1980); see also Lubin v. United States, 313 F.2d 419, 422 (9th Cir.1963) (\"We do not think that the Congress, in enacting the conspiracy statute, intended to make criminal schemes which, if successfully carried out, would not result in the commission of" }, { "docid": "11037840", "title": "", "text": "by mail ... according to the direction thereon, ... shall be fined under this title or imprisoned not more than five years, or both. 18 U.S.C. § 1341. The government alleged that Kennedy devised WMC as a scheme for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, which included, most significantly, explicit or implied promises to lock-in metal prices at the time investors ordered metal and to purchase the metal immediately. Each of the individual mail fraud convictions was predicated on different named investors who were the addressees of specific mailings sent from Kennedy or WMC to execute this scheme. Kennedy’s narrow contention on appeal is that the government did not present sufficient evidence from which a jury could find that the false promises to lock-in a price upon ordering and to use investors’ funds to purchase metal immediately were ever made directly to the individuals named in eight of the mail fraud counts. Kennedy points out that five of these named addressees did not testify at trial, and those that did testify only explained their understanding of WMC’s purchasing procedures, rather than the representations that were actually made to them. Without such evidence, Kennedy argues that the mail fraud convictions cannot stand. Because we disavow Kennedy’s underlying premise that the government had to prove that misrepresentations were made directly to each named investor, we disagree. To prove a violation of the mail fraud statute, the government must prove three things: (1) the devising of a scheme or artifice either (a) to defraud or (b) for obtaining money by means of false or fraudulent pretenses, representations, or promises, (2) the specific intent to defraud, and (3) the use of the United States mails to execute the scheme. See Williams v. United States, 368 F.2d 972, 975 (10th Cir.1966), cert. denied, 386 U.S. 997, 87 S.Ct. 1317, 18 L.Ed.2d 345 (1967). Based on the plain language of the statute, this court made clear in Graham v. United States, 120 F.2d 543, 544 (10th Cir.1941), that the central focus of the first element is the existence" }, { "docid": "23347471", "title": "", "text": "variance between pleading and proof. Evidence of acts performed prior to an alleged conspiracy, if properly admissible, do not create a fatal variance. Evidence of prior fraudulent transactions are, and were here “properly” admissible, not to prove the conspiracy charged, but to show some other material fact, such as an absence of mistake, motive, opportunity, intent, preparation, plan or knowledge. The Government charged, and had the burden to prove, that the defendant conspired to, and did devise, a scheme or artifice (a) to defraud, or (b) to obtain money by means of false or fraudulent pretenses, representations or promises. (18 U.S.C. § 1341.) The crux of the conspiracy charged was to keep the “nonsufficient funds” checks in float between a Hollywood Bank and a Chicago Bank. Temple did this through the active aid of Jones and Augustyn in Los Angeles, and Erickson in Minneapolis. Each of the defendants performed a different role, and may have had dissimilar motives for participating in the transactions, but this does not mean that a single conspiracy did not exist. United States v. Hoffa, 367 F.2d 698, 706 et seq. (7th Cir.). Each participant in the conspiracy need not know what other participants are doing, or why. Wood v. United States, 283 F.2d 4 (5th Cir. 1960). The elements of conspiracy may be proved by circumstantial evidence alone. Jordan v. United States, 370 F. 2d 126 (10 Cir. 1966), cert. denied, 386 U.S. 1033, 87 S.Ct. 1484, 18 L.Ed.2d 595. Once a conspiracy is proved, “slight evidence is all that is required to connect a defendant with the conspiracy.” Diaz-Rosendo v. United States, 357 F.2d 124 (9th Cir. 1966), cert. denied, 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83, citing Sabari v. United States, 333 F.2d 1019 (9th Cir. 1964), rehearing denied, July 9 1964. It seems clear to us that the proof in this case was sufficient for the jury to find that a single conspiracy did exist, and that defendant Jones was a knowing participant of it. 2. Evidence of Prior Acts (Appellant’s Argument “J”) If the purpose of the government offer" }, { "docid": "23331367", "title": "", "text": "made to locate the main operating headquarters at the Escondido and Oceanside warehouses. Finally, the prosecution produced an elaborate analysis of common telephone facilities and answering services used by various of the individuals involved and perhaps dozens of others. II. ANALYSIS. A. Jurisdiction (18 U.S.C. § 3231 (1970)). Our preliminary question is whether the evidence shows a conspiracy or attempt to violate any United States laws. Al though the answer is not wholly free from doubt, we believe that the District Court justifiably concluded that the crimes charged in the indictment were cognizable in the United States. As noted, supra, the computers were shipped on a temporary export license, and the preparer of the license was told by Hillman and Geiger that the computers would not be shipped for sale, but would be returned to the United States after being exhibited. Thus, there was sufficient prima facie evidence from which to conclude that the scheme, if proved, would constitute a violation of laws of the United States. Cf. United States v. Croxton, 482 F.2d 231 (9th Cir. 1973) (evidence of conspiracy was sufficient even though parties had not finalized specific means for transporting controlled substance into the United States). B. Sufficiency of the Evidence Under the “Slight Evidence” Rule. 1. “Slight Evidence” Rule. It is sometimes said, as the Government here states in its brief, that “ ‘[Ojnce the existence of a conspiracy is clearly established, slight evidence may be sufficient to connect a defendant with it’,’’ quoting from United States v. Knight, 416 F.2d 1181, 1184 (9th Cir. 1969), which in turn quotes from earlier cases. We confess to having repeatedly proliferated, although we did not initiate, this statement, a principle that has become part of the cant in conspiracy cases. The litany is highly misleading if taken out of the context of the particular cases in which it was made. E. g., Fox v. United States, 381 F.2d 125, 129 (9th Cir. 1967); Diaz-Rosendo v. United States, 357 F.2d 124, 130 (9th Cir. 1966), cert. denied, 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83 (1966); United States" }, { "docid": "22597776", "title": "", "text": "argues that the foregoing evidence is insufficient to support his convictions for aiding and abetting bank fraud and for conspiracy. There is sufficient evidence to support a conviction if, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found each of the essential elements of the crime beyond a reasonable doubt. United States v. Penagos, 823 F.2d 346, 347 (9th Cir.1987); United States v. Pemberton, 853 F.2d 730, 733 (9th Cir.1988). A In order to obtain a conviction for bank fraud in violation of 18 U.S.C. § 1344, the government must prove beyond a reasonable doubt that the defendant knowingly (1) engaged in a scheme to defraud a federally chartered or insured financial institution, or (2) participated in a scheme to obtain money under custody or control of a federally chartered or insured financial institution by means of material, false statements or representations. See United States v. Goldblatt, 813 F.2d 619, 624 (3d Cir.1987). For purposes of the bank fraud statute, the terms “scheme” and “artifice” are defined to include “any plan, pattern or cause [sic] of action, including false and fraudulent pretenses and misrepresentations, intended to deceive others in order to obtain something of value, such as money, from the institution to be deceived.” Id. It is sufficient to prove that there was a fraudulent scheme in which the defendant participated; it is not determinative that a defendant was not on hand at the “launching” of the scheme if he “came aboard” later. See United States v. Toney, 598 F.2d 1349, 1356 (5th Cir.1979), cert. denied, 444 U.S. 1033, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980) (mail fraud). Conviction as an aider and abettor requires proof beyond a reasonable doubt that the defendant willingly associated himself with a criminal venture and participated therein as something he wished to bring about. United States v. Zemek, 634 F.2d 1159, 1174 (9th Cir.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1359, 67 L.Ed.2d 341 (1981). Aiding and abetting means to assist the perpetrator of a crime. United States v. Reese, 775 F.2d 1066," }, { "docid": "23347496", "title": "", "text": "was charged in the indictment, instructed on by the court, and found by the jury. The jury could have found the appellant Jones acted with gross negligence, as his counsel urges, but without any intent to defraud. The jury did not so find, and we cannot disturb its finding. Of course, intent can be found from circumstantial evidence, Phillips v. United States, 356 F.2d 297 (9th Cir. 1955), and need not be specifically admitted or confessed. 7. We need not specifically answer appellant’s Arguments “L” and “M”, other than to state: (1) We are thoroughly familiar with the dangers and perils to defendants in conspiracy cases, and the use of the theory of a conspiracy in many criminal prosecutions. But we know of no cases forbidding the use by United States Attorneys of any United States statutes creating crimes. The remedy, if any is required, lies with the legislative branch of our Government, not the judicial. Anslwer v. United States, 381 F.2d 37 (9th Cir. 1967). (2) As to overt acts alleged between defendant Jones and one Gregory, a non-defendant, the Government asserts the telephone conversation named in overt act number four, Count One, while from Gregory to Jones, was still an overt act in furtherance of the conspiracy because its topic was certain “nonsufficient fund checks” that Temple had cashed as part of the check kiting scheme alleged in the indictment. We agree it could be. Cf. Bartoli v. United States, 192 F.2d 130 (4th Cir. 1951). It is clear as long as the disposition of the case against a coconspirator does not remove the basis for the charge of conspiracy, a single defendant can be convicted of the offense based upon proof of overt acts committed by the coconspirator not tried or not convicted. Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942); Ng Pui Yu v. United States, 352 F.2d 626 (9th Cir. 1965); United States v. Shipp, 359 F.2d 185 (6th Cir. 1966, cert. denied, 385 U.S. 903, 87 S.Ct. 213, 17 L.Ed.2d 134; Nassif v. United States, 370 F.2d 147" }, { "docid": "23132423", "title": "", "text": "sales, Henry Harrison made the same misrepresentations concerning Presidential as others did. The evidence showed that he conducted most of the dinner meetings in St. Louis. Based on the above analysis we find there was sufficient evidence to support the government's charges and the jury’s verdicts that each of the defendants participated in a scheme to defraud. The defendants contend that there was no evidence that they intended to defraud and that at most the record demonstrates mismanagement and a resulting business failure. Some of the parties allege that they relied on advice of counsel in taking the advances and manipulating the cash. These questions, however, belong peculiarly to the trier of fact and not to this court. Intent can seldom be shown by actual testimony reflecting a defendant’s state of mind. The cases are legion that intent may properly be inferred from all the facts and circumstances surrounding the transactions. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Isaacs v. United States, 301 F.2d 706, 724-725 (8 Cir. 1962), cert. denied 371 U.S. 818, 83 S.Ct. 32, 9 L.Ed.2d 58; Blachly v. United States, 380 F.2d 665, 676 (5 Cir. 1967); Diaz-Rosendo v. United States, 357 F.2d 124, 129 (9 Cir. 1966), cert. denied 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83; Gusow v. United States, 347 F.2d 755, 756 (10 Cir. 1965), cert. denied 382 U.S. 906, 86 S.Ct. 243, 15 L.Ed.2d 159; Roe v. United States, 316 F.2d 617, 621-622 (5 Cir. 1963); Beck v. United States, 305 F.2d 595, 598 (10 Cir. 1962), cert. denied 371 U.S. 890, 83 S.Ct. 186, 9 L.Ed.2d 123. One of the salient factors in weighing the sufficiency of proof as to intent to defraud is the parties’ use of material misrepresentations in carrying out their venture. Anderson v. United States, 369 F.2d 11, 15 (8 Cir. 1966), cert. denied 386 U.S. 976, 87 S.Ct. 1171, 18 L.Ed.2d 136 (1967); Fabian v. United States, 358 F.2d 187, 194 (8 Cir. 1966), cert. denied 385 U.S. 821, 87 S.Ct. 46, 17 L.Ed.2d 58; Reistroffer" }, { "docid": "23315671", "title": "", "text": "abetting bank fraud (Count 9). II Bank fraud under 18 U.S.C. § 1344 requires proof beyond a reasonable doubt that the defendants knowingly executed or attempted to execute “a scheme or artifice — (1) to defraud a financial insti tution; or (2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations or promises.” To establish a conspiracy violation under 18 U.S.C. § 371, the Government had to prove beyond a reasonable doubt: “(1) an agreement between two or more people, (2) to commit a crime against the United States, and (3) an overt act by one of the conspirators to further the objectives of the conspiracy.” United States v. Dupre, 117 F.3d 810, 820 (5th Cir.1997) (holding evidence of cooperative effort sufficient to support convictions for conspiracy to commit bank fraud), cert, denied, — U.S.-, 118 S.Ct. 857, 139 L.Ed.2d 756 (1998). A defendant may be convicted for aiding and abetting the commission of a crime if he was “ ‘associated with a criminal venture, participated in the venture, and sought by his action to make the venture succeed.’ ” United States v. Parekh, 926 F.2d 402, 406 (5th Cir.1991) (quoting United States v. Holcomb, 797 F.2d 1320, 1328 (5th Cir.1986)). Ill The Government urges that it proved that Cox, Long, and Cain directed a “far reaching scheme to fraudulently obtain the funds of the Bank.” Billy Cox directed the activities at the various A-l lots, and Max Cain worked to keep the fraudulent loan practices hidden. Mason Long delivered the mobile homes and instructed customers not to tell the bank that their reported down payments had been inflated. The other defendants, managers and sales representatives from different lots, collected information from customers with the knowledge that the information would be used to prepare fraudulent loan packages for the sale of mobile homes. Defendants Max Cain, James Caldwell, Samantha Davis, David Freeman, Mason Long, Pat Malmstrom, Tammy Morrow, Larry Meinzer, and Gene Trout argue insufficiency of" }, { "docid": "23347470", "title": "", "text": "BARNES, Circuit Judge: This appeal is from a judgment of conviction of the one defendant remaining after three codefendants entered pleas of guilty to one or two counts of a nine count indictment charging a violation of 18 U.S.C. §§ 371, 1341, or 1343. Appellant was convicted on six counts, and sentenced concurrently to eighteen months to five years on each count. In the vernacular, appellant was charged with! large scale “check kiting.” Appellant raises six alleged errors relating to the conduct of the trial judge; two more as to the misconduct of the prosecutrix; three as to instructions; four as to the sufficiency of the evidence ; one as to the form of the indictment; and one alleging a fatal variance between pleadings and proof. We find no error, and we affirm. 1. Fatal Variance and Form of Indictment (Appellant’s Argument “I”) Appellant urges that there were three separate conspiracies, not one; and that proof of facts prior to the date alleged as the start of the conspiracy (August 1, 1966) established a fatal variance between pleading and proof. Evidence of acts performed prior to an alleged conspiracy, if properly admissible, do not create a fatal variance. Evidence of prior fraudulent transactions are, and were here “properly” admissible, not to prove the conspiracy charged, but to show some other material fact, such as an absence of mistake, motive, opportunity, intent, preparation, plan or knowledge. The Government charged, and had the burden to prove, that the defendant conspired to, and did devise, a scheme or artifice (a) to defraud, or (b) to obtain money by means of false or fraudulent pretenses, representations or promises. (18 U.S.C. § 1341.) The crux of the conspiracy charged was to keep the “nonsufficient funds” checks in float between a Hollywood Bank and a Chicago Bank. Temple did this through the active aid of Jones and Augustyn in Los Angeles, and Erickson in Minneapolis. Each of the defendants performed a different role, and may have had dissimilar motives for participating in the transactions, but this does not mean that a single conspiracy did not exist." }, { "docid": "891382", "title": "", "text": "Baul Lopez, the appellant. Trotter, after identifying Lopez in open court, testified that Lopez had asked to meet him at the “ice house” on East Houston Street. This particular “ice house” was a favorite rendezvous for the conspirators and was frequently used by them to plan their activities. At the meeting, Lopez stated that he would try to make the necessary arrangements if Trotter was needed to haul “some stuff” on the weekends. Trotter explained that Kelly Air Force Base did not normally receive weekend deliveries and that he did not know how Lopez could get him on the base. The appellant maintains that the trial court erred in denying his motion for a judgment of acquittal because the evidence was insufficient to support the jury’s verdict. The appellant claims the evidence was insufficient because (1) there was no evidence that the appellant entered into an agreement with the other conspirators, and (2) if the evidence did prove the existence of a conspiracy it merely proved a separate conspiracy between Lopez and Trotter which was not charged in the indictment. Neither contention is meritorious and we accordingly affirm. Admittedly the evidence here is slight. However, when, as in this case, the existence of a conspiracy is shown, slight evidence may be sufficient to connect a particular defendant with it. Bradford v. United States, 5 Cir. 1969, 413 F.2d 467; Diaz-Rosendo v. United States, 9 Cir. 1966, 357 F.2d 124, cert. denied 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83 (1966). The evidence connecting Lopez with the conspiracy is circumstantial. Circumstantial evidence alone if believed by the jury is sufficient to connect a defendant with the conspiracy. Bradford v. United States, supra; Cohen v. United States, 5 Cir. 1966, 363 F.2d 321, cert. denied 385 U.S. 957, 87 S.Ct. 395, 17 L.Ed.2d 303 (1966). In circumstantial evidence cases such as this, “the test to be applied on motion for judgment of acquittal and on review of denial of such motion is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude" }, { "docid": "23286548", "title": "", "text": "U.S.C. § 2 (credit scam). Count 5: Money laundering in violation of 18 U.S.C. § 1956(a)(l)(B)(i) and aiding and abetting in violation of 18 U.S.C. § 2 (cashing chips obtained through credit scam). Count 6: Interstate transportation of stolen property in violation of 18 U.S.C. § 2314 and aiding and abetting in violation of 18 U.S.C. § 2 (burglary proceeds). Count 7: Receipt of stolen property in violation of 18 U.S.C. § 2315 and aiding and abetting in violation of 18 U.S.C. § 2 (burglary proceeds). Count 8: Money laundering in violation of 18 U.S.C. § 1956(a)(l)(B)(i) and aiding and abetting in violation of 18 U.S.C. § 2 (cashing chips obtained in boat burglary). . The Manarites were acquitted on Counts 4 and 5. . Object (2) of Count 1 (Conspiracy) of the indictments. . Object (3) of Count 1 (Conspiracy) of the indictments. . The mail fraud and wire fraud statutes \"share identical language” regarding the scheme re quirements, so the wire fraud statute is read in light of the case law on mail fraud. U.S. v. Louderman, 576 F.2d 1383, 1387 n. 3 (9th Cir.), cert. denied, 439 U.S. 896, 99 S.Ct. 257, 58 L.Ed.2d 243 (1978). Both provide that \"[w]ho-ever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises [mails or causes to be mailed]/[transmits or causes to be transmitted] for the purpose of executing such scheme or artifice ... shall be fined ... or imprisoned....'' 18 U.S.C. § 1341; 18 U.S.C. § 1343. . In support of its position, the government cites two pre-Maze cases, United States v. Kelem, 416 F.2d 346 (9th Cir.1969), cert. denied, 397 U.S. 952, 90 S.Ct. 977, 25 L.Ed.2d 134 (1970) (finding mail fraud where defendants undertook scheme to sell airline tickets purchased with credit cards, never paying the bills), and Suhl v. United States, 390 F.2d 547 (9th Cir.), cert. denied, 391 U.S. 964, 88 S.Ct. 2035, 20 L.Ed.2d 879 (1968) (holding that check-kiting scheme constituted mail fraud where worthless checks" }, { "docid": "2003127", "title": "", "text": "for Kleist and Richards. Each had extensive prior experience in illicit drug transactions and all were knowledgeable with regard to the extreme profits to be realized if the illegal scheme should succeed. Further, each of the original three co-conspirators was fully aware of the risks involved in the scheme. However, they were hard pressed financially and were eager to recruit “investors” to see the scheme through. In United States v. Andrews, 585 F.2d 961 (10th Cir.1978), we there observed that which we believe is applicable here in rejecting appellants’ contentions that the evidence established the existence of multiple conspiracies, rather than one as charged: The essence of the crime of conspiracy is an agreement to violate the law. United States v. Butler, 494 F.2d 1246 (10th Cir.1974); Carter v. United States, 333 F.2d 354 (10th Cir.1964). The evidence in a criminal conspiracy trial, such as the instant case, need only establish the existence of a conspiracy and that a defendant knowingly contributed his efforts in furtherance thereof. United States v. Jackson, 482 F.2d 1167 (10th Cir.1973), cert. denied, 414 U.S. 1159, 94 S.Ct. 918, 39 L.Ed.2d 111 (1974); Collins v. United States, 383 F.2d 296 (10th Cir.1967). The nature of the offense of conspiracy with its attendant aspects of secrecy, often requires that elements of the crime be established by circumstantial evidence. Thus, the common plan or purpose may be inferred from a combination of circumstances. Jordan v. United States, 370 F.2d 126 (10th Cir.1976), cert. denied, 386 U.S. 1033, 87 S.Ct. 1484, 18 L.Ed.2d 595 (1967); Baker v. United States, 329 F.2d 786 (10th Cir.1964), cert. denied, 379 U.S. 853, 85 S.Ct. 101, 13 L.Ed.2d 56 (1964). The Government’s evidence may establish an on-going course of conduct giving rise to one continuing conspiracy, covering an extended period of time. United States v. Bridwell, 583 F.2d 1135 (10th Cir.1978); United States v. Gunter, 546 F.2d 861 (10th Cir.1976), cert. denied, 431 U.S. 920, 97 S.Ct. 2189, 53 L.Ed.2d 232 (1977). Accordingly, a party may join an ongoing conspiracy during its progress and become criminally liable for all acts done in" }, { "docid": "6611906", "title": "", "text": "a conspiracy, the government must prove that \"there was an agreement to achieve some illegal purpose, that the defendant knew of the agreement, and that the defendant knowingly became a part of the conspiracy.” United States v. Bass, 121 F.3d 1218, 1220 (8th Cir.1997). Additionally, one of the conspirators must have acted to effect the object of the conspiracy. United States v. Dolan, 120 F.3d 856, 868 (8th Cir.1997). . As we already stated, the jury acquitted Tucker on the substantive charges arising out of the Etta’s Place transaction. Acquittal by the jury on those charges does not affect our analysis on the sufficiency of the evidence of the conspiracy charge. See United States v. Suppenbach, 1 F.3d 679, 681 (8th Cir.1993). . 18 U.S.C. § 1341 provides: Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses ... for the purpose of executing such scheme ... places in any post office ... any matter or thing whatever to be sent or delivered by the Postal Service ... or knowingly causes to be delivered by mail ... any such matter or thing, shall be fined under this title or imprisoned not more than five years, or both. The statute requires proof of: (1) a scheme to defraud; (2) use of the mails for the purpose of executing such scheme; and (3) intent to defraud. United States v. Midtaune, 589 F.2d 370, 374 (8th Cir.), cert. denied, 442 U.S. 917, 99 S.Ct. 2837, 61 L.Ed.2d 284 (1979). . Section 1341 does not use the word \"wilfully.” Cf. United States v. Jain, 93 F.3d 436, 440-41 (8th Cir.1996) (looking at Medicare anti kickback statute’s use of \"wilfully” to decide whether court should give instruction), cert. denied, - U.S. -, 117 S.Ct. 2452, 138 L.Ed.2d 210 (1997). BEAM, Circuit Judge, concurring in' part and dissenting in part, I concur in Parts II, III, and IV of the court’s decision. However, I respectfully dissent from Part I because, in my view, the district court did not err in" }, { "docid": "22238661", "title": "", "text": "single project). We hold, therefore, that each end loan provided by Bay Loan was the result of a separate fraud upon the bank which the indictment properly charged as an individual bank fraud offense. IV. SUFFICIENCY OF THE EVIDENCE Seven of the eight defendants argue that the evidence introduced at trial was insufficient to support their convictions for bank fraud and conspiracy to commit bank fraud. They argue, with individual variations, that they did not have the requisite knowledge and intent to defraud Bay Loan because they did not know of, or intend to violate, any down payment requirements of the bank. With the few exceptions previously noted, we disagree. Before reviewing the evidence with respect to each defendant, we must first address some issues regarding the substantive offenses charged in this case. A. The Offenses 1. Bank Fraud To prove bank fraud under 18 U.S.C. § 1344, the prosecution must show beyond a reasonable doubt that the defendant (1) engaged in a scheme or artifice to defraud, or made false statements or misrepresentations to obtain money from; (2) a federally insured financial institution; and (3) did so knowingly. United States v. Goldblatt, 813 F.2d 619, 623-24 (3rd Cir.1987); United States v. Cloud, 872 F.2d 846, 850 (9th Cir.), cert. denied, 493 U.S. 1002, 110 S.Ct. 561, 107 L.Ed.2d 556 (1989). The terms “scheme” and “artifice” are defined to include “any plan, pattern or cause of action, including false and fraudulent pretenses and misrepresentations, intended to deceive others in order to obtain something of value, such as money, from the institution to be deceived.” Goldblatt, 813 F.2d at 624 (citing United States v. Toney, 598 F.2d 1349, 1357 n. 12 (5th Cir.1979), cert. denied, 444 U.S. 1033, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980)). “The term ‘scheme to defraud,’ however, is not capable of precise definition. Fraud instead is measured in a particular case by determining whether the scheme demonstrated a departure from fundamental honesty, moral uprightness, or fair play and candid dealings in the general life of the community.” Goldblatt, 813 F.2d at 624; see also United States v." }, { "docid": "891383", "title": "", "text": "not charged in the indictment. Neither contention is meritorious and we accordingly affirm. Admittedly the evidence here is slight. However, when, as in this case, the existence of a conspiracy is shown, slight evidence may be sufficient to connect a particular defendant with it. Bradford v. United States, 5 Cir. 1969, 413 F.2d 467; Diaz-Rosendo v. United States, 9 Cir. 1966, 357 F.2d 124, cert. denied 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83 (1966). The evidence connecting Lopez with the conspiracy is circumstantial. Circumstantial evidence alone if believed by the jury is sufficient to connect a defendant with the conspiracy. Bradford v. United States, supra; Cohen v. United States, 5 Cir. 1966, 363 F.2d 321, cert. denied 385 U.S. 957, 87 S.Ct. 395, 17 L.Ed.2d 303 (1966). In circumstantial evidence cases such as this, “the test to be applied on motion for judgment of acquittal and on review of denial of such motion is not simply whether in the opinion of the trial judge or the appellate court the evidence fails to exclude every reasonable hypothesis, but that of guilt, but rather whether the jury might reasonably so conclude.” Harper v. United States, 5 Cir. 1969, 405 F.2d 185, quoting Vick v. United States, 5 Cir. 1954, 216 F.2d 228. Viewing the evidence in the light most favorable to the government, Glasser v. United States, 1941, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed.2d 680, we conclude that the jury could reasonably find that Lopez was a member of the conspiracy. The facts, recited previously, provide a sufficient basis upon which the jury could conclude that Lopez knew of the conspiracy (by meeting with Trotter, who had been previously “hired” by the defendants) and that Lopez intentionally performed an act in furtherance of the conspiracy (by meeting with Trotter and discussing plans to get Trotter on the base during the weekends). If the knowledge of a conspiracy and an intentional act in furtherance thereof can be proved, the jury may reasonably infer the existence of an; agreement. Badon v. United States, 5 Cir. 1959, 269 F.2d 75, cert." } ]

[ { "docid": "23383803", "title": "", "text": "BY THE COURT: Appellant has filed a motion for a certificate of appealability (COA), which this Court construes as a motion to expand the COA already granted by the district court. The district court granted a COA as to “[w]hether Petitioner was denied the right to due process under the Fifth and Fourteenth Anendments to the United States Constitution.” The issue upon which the district court granted a COA, however, conflicts with the district court’s dismissal of the appellant’s habeas petition, 28 U.S.C. § 2254, as time-barred under the one-year statute of limitations set forth in the Antiterrorism and Effective Death Penalty Act of 1996. When a district court dismisses a petition as time-barred, it is inappropriate to grant a COA on the constitutional claim e.g., the due process claim in this case. Accordingly,. this Court VACATES the order granting a COA and REMANDS the case to the district court for the limited purpose of considering whether a COA should be granted on the question of whether appellant’s habeas petition is time-barred. Appellant’s motion to expand the COA is DENIED AS MOOT." } ]

[ { "docid": "5308028", "title": "", "text": "Court of Criminal Appeals. On March 9, 1994, that court affirmed Clark’s conviction and sentence. See Clark v. State, 881 S.W.2d 682 (Tex.Crim.App.1994) (en banc). And on February 21, 1995, the Supreme Court denied Clark’s petition for writ of certiorari. See Clark v. Texas, 513 U.S. 1156, 115 S.Ct. 1114, 130 L.Ed.2d 1078 (1995). Clark then filed an application for state habeas relief. The same judge who had presided over Clark’s criminal trial entered findings of fact and conclusions of law recommending denial of Clark’s state habeas petition. On June 10, 1998, the Texas Court of Criminal Appeals adopted the trial judge’s findings of fact and conclusions of law and denied Clark’s application for state habeas corpus relief. Clark then filed his petition for habeas corpus relief in federal district court. The Texas Attorney General answered Clark’s federal petition and moved for summary judgment. On August 25, 1998, the district court granted the motion for summary judgment and dismissed Clark’s petition for writ of habeas corpus with prejudice. On September 25, 1998, the district court denied Clark’s request for a COA on each of the issues raised herein. III. DISCUSSION Clark seeks a COA from this Court on each of the following issues: (1) whether summary judgment is an appropriate mechanism for the disposition of petitions for habeas corpus relief filed pursuant to 28 U.S.C. § 2254; (2) whether Clark was afforded an adequate opportunity to develop the factual basis underlying his claims for relief, i.e. whether he was entitled to discovery and an evidentiary hearing before summary judgment would have been appropriate; (3) whether the district court erred in deferring to state court findings regarding his claims A, B, C, E, and F, because he had not been afforded the opportunity to develop the underlying factual basis for those claims at an evidentiary hearing; (4) whether the district court erred in failing to grant a continuance so as to permit Clark to develop the underlying factual basis of his claims; (5) whether the district court erred in denying Clark the appointment of an expert in forensic pathology to help" }, { "docid": "11190473", "title": "", "text": "federal habeas court which was not before the state habeas court due to state habeas counsel’s failures. The district court denied Licho’s motion for a new trial on August 23, 2012, and Licho thereafter, timely moved for a COA. II. A petitioner is required to seek a COA before an appeal of the district court’s denial of his § 2254 habeas petition. 28 U.S.C. § 2253(c)(1). To obtain a COA, a prisoner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). If a district court has rejected a prisoner’s constitutional claim on the merits, this court will issue a COA only if the prisoner demonstrates that jurists of reason could debate whether the district court’s resolution of his constitutional claims were correct, or could conclude the issues presented are “adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 336, 123 S.Ct. 1029 (internal quotation marks and citation omitted). “A claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Id. at 338, 123 S.Ct. 1029. As we have explained, the standard a petitioner must meet to be granted a COA in a death penalty case is less burdensome than in a non-capital case. See Clark v. Thaler, 673 F.3d 410, 425 (5th Cir.2012) (“While the nature of a capital case is not of itself sufficient to warrant the issuance of a COA, in a death penalty case any doubts as to whether a COA should issue must be resolved in the petitioner’s favor.”) (quotation marks and footnote omitted). Accordingly, where the question is close, “any doubt as to whether a COA should issue in a death-penalty case must be resolved in favor of the petitioner.” Pippin v. Dretke, 434 F.3d 782, 787 (5th Cir.2005). “In a habeas corpus appeal, we review the district court’s findings of fact for clear error and its conclusions of law de novo," }, { "docid": "22413208", "title": "", "text": "to suggest that we should proceed to examine the constitutional claims before granting a COA, Muniz’s recognition that the COA requirement is jurisdictional as to each issue requires that, once we conclude that the district court erred in dismissing an application because of failure to exhaust, we vacate and remand to the district court to address the merits of the habeas claims in the first instance. III. CONCLUSION Whitehead has shown that the district court erred in dismissing his application for failure to exhaust state remedies. We therefore grant a COA on that issue only. The usual procedure after this court grants a COA is for the appeal to proceed to full briefing by all parties. In this instance, however, the sole issue before us—exhaustion of state remedies—is indisputably resolved by the petitioner’s COA application and the record, making further briefing on that issue unnecessary. In Clark v. Williams, we granted leave to proceed in forma pauperis, vacated the district court’s judgment, and remanded, all without requiring briefing. That procedure is appropriate here. We therefore vacate the judgment of the district court denying COA for failure to exhaust state remedies and remand this case to that court to consider the substance of Whitehead’s habeas claims. COA GRANTED; Judgment VACATED and Case REMANDED. . An application for a writ of habeas corpus under § 2254 is the proper method for a prison er's challenge to the calculation of his time credits. See Clarke v. Stalder, 154 F.3d 186, 193-94 (5th Cir.1998) (en banc). . See 28 U.S.C. § 2253(c)(2). . See Murphy v. Johnson, 110 F.3d 10, 11 (5th Cir.1997)(applying the COA standard to noncon-stitutional issue of exhaustion of state remedies). . Id. . Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir.), cert. denied, - U.S. -, 118 S.Ct. 399, 139 L.Ed.2d 312 (1997). . Rose v. Lundy, 455 U.S. 509, 519-20, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). . Id.; see also 28 U.S.C. § 2254(b)(1)(A) (writ shall not be granted unless it appears that the applicant has exhausted state remedies). . Picard v. Connor, 404 U.S. 270, 275-78," }, { "docid": "15422968", "title": "", "text": "whether the trial court should have granted an evidentiary hearing. (R.-7 at 4.) As an alternative basis for decision, the report and recommendation also addressed the merits of Henry’s ineffective-assistance claims and found them lacking. Following receipt and consideration of Henry’s objections to the magistrate judge’s report, the district judge denied Henry’s petition solely because of his failure to exhaust his remedies in state court. The district judge declined to reach the merits of Henry’s ineffective-assistance claims. Finally, the district judge denied Henry’s request for a COA, and Henry accordingly sought a COA from this court. A motions judge of this court, see Fed. R. App. P. 27(c); 11th Cir. R. 27-l(d)(2), granted a COA as to the exhaustion issue and ordered briefing on the appropriate standard for granting a COA where a district court denies or dismisses a petition for procedural reasons without reaching the merits of the underlying claims. In accordance with Fed. R. App. P. 27(c) and 11th Cir. R. 27-l(d), we now review the prior decisions regarding the COA in light of the briefs submitted and oral argument. We conclude that the COA was properly granted. We then proceed, using the full presentation of the exhaustion issue provided by the briefs and oral argument, to address the appeal itself. II. The COA Henry’s application for a COA raises two questions: (1) whether it is ever appropriate to allow appeals from procedural-rule dismissals of § 2254 petitions; and (2) if it is ever appropriate, when COAs should be granted to permit such appeals. We begin our analysis of both questions with some history. The Antiterrorism and Effective Death Penalty Act of 1996 § 102, 28 U.S.C. § 2253 (Supp. II 1997) (AED-PA), both renamed the certificate needed to appeal the denial or dismissal of a § 2254 petition and changed the standard for issuing that certificate. Prior to AED-PA, petitioners wanting to appeal had to seek a certificate of probable cause (CPC), which required making a “substantial showing of the denial of [a] federal right.” Barefoot v. Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 3394, 77" }, { "docid": "23470058", "title": "", "text": "proceed in this Court. As noted, section 2253(c) further provides that a COA may only issue “if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). The issue Martin raises on appeal — the timeliness of a motion to reconsider an order granting a § 2255 motion filed prior to resentencing — does not concern the denial of a constitutional right; the appeal is limited to a discrete question of district court procedure and jurisdiction. Furthermore, because of the unusual circumstances of this case, Martin’s underlying petition, if considered as of the present time rather than as of the time he filed it, no longer raises a substantial constitutional question. The district court jurisdictional question raised in this appeal arose precisely because the Supreme Court decided the constitutional question against Martin between the time the district court first granted his petition and the resen-tencing. The question, then, is whether a COA is still available in view of these two circumstances. Slack speaks to both aspects of our COA problem (although the precise circumstances in Slack were somewhat different). In its discussion of appellate jurisdiction over procedural questions arising from the district court’s treatment of habe-as petitions, the Court observed that: 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. The issue becomes somewhat more complicated where, as here, the district court dismisses the petition based on procedural grounds. We hold as follows: When the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack, 120 S.Ct. at 1604 (emphasis added). Slack," }, { "docid": "22413207", "title": "", "text": "district court deny a COA as to each issue presented by the applicant. “A district court must deny the COA before a petitioner can request one from this court. The rule contemplates that the district court will make the first judgment whether a COA should issue and on which issues, and that the circuit court -will be informed by the district court’s determination in its own decisionmaking.” Compliance with the COA requirement of 28 U.S.C. § 2253(c) is jurisdictional, and the lack of a ruling on a COA in the district court causes this court to be without jurisdiction to consider the appeal. According to Muniz, however, we do have jurisdiction to consider whether to grant or deny a COA on the issue of exhaustion only, because that is the only issue addressed in the district court’s COA determination. In Murphy, we did not need to reach the second step because we determined that the district court’s ruling—that the applicant had failed to satisfy the exhaustion requirement—was correct. Notwithstanding language in Murphy that would seem to suggest that we should proceed to examine the constitutional claims before granting a COA, Muniz’s recognition that the COA requirement is jurisdictional as to each issue requires that, once we conclude that the district court erred in dismissing an application because of failure to exhaust, we vacate and remand to the district court to address the merits of the habeas claims in the first instance. III. CONCLUSION Whitehead has shown that the district court erred in dismissing his application for failure to exhaust state remedies. We therefore grant a COA on that issue only. The usual procedure after this court grants a COA is for the appeal to proceed to full briefing by all parties. In this instance, however, the sole issue before us—exhaustion of state remedies—is indisputably resolved by the petitioner’s COA application and the record, making further briefing on that issue unnecessary. In Clark v. Williams, we granted leave to proceed in forma pauperis, vacated the district court’s judgment, and remanded, all without requiring briefing. That procedure is appropriate here. We therefore" }, { "docid": "15422982", "title": "", "text": "federal court allegation was an Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), violation requiring an evidentiary hearing in the district court). Nevertheless, we recognize that if state procedure explicitly demanded more of a petitioner, a request for a hearing might not be enough. Florida’s rule, however, makes no such demand. Under Rule 3.850, it is the trial judge who determines how much procedural attention a petition warrants. See Fla. R. Crim. P. 3.850(d). Henry’s state-court appeal, which requested only the evidentiary hearing denied by the trial judge, was therefore appropriately modest. It asked for the most he could reasonably have expected from the appeals court — an order vacating and remanding for an evidentiary hearing. Exhaustion should not be construed to mandate more. IV. Conclusion Having reviewed Henry’s application for a COA to appeal the district court’s determination that Henry failed to exhaust his constitutional claims in state court, we uphold the grant of a COA. In light of the briefs submitted and oral argument on the issue, we further conclude that Henry did exhaust his state remedies. We therefore vacate the district court’s denial of Henry’s petition and remand for further proceedings. COA GRANTED; VACATED and REMANDED. . Other frequently applied procedural doctrines presenting this problem might include the AEDPA statute of limitations set forth in 28 U.S.C. § 2244(d), the limits on filing successive petitions established in 28 U.S.C. § 2244(b), and procedural default. . We note that Henry did not seek a COA as to the merits of his underlying ineffective-assistance claims. Instead, his application specifically limited the ground for the COA to the exhaustion issue. Nevertheless, even when a petitioner whose claim is dismissed for procedural reasons has not yet sought a COA as to the merits of his claims, it may in some cases make sense for the court considering the COA application to examine the merits of the underlying constitutional claims to determine whether they might, under any circumstances, warrant relief — i.e., to determine their facial validity. This is particularly true where, as here, the district court" }, { "docid": "7191498", "title": "", "text": "convict him on a charge of a nonexistent crime, attempted felony murder; (2) he was denied the effective assistance of appellate counsel; and (3) he was denied the effective assistance of trial counsel. Without conducting an evidentia-ry hearing, the district court denied Clark’s § 2254 petition. After the district court denied Clark’s application for a certificate of appealability (COA), a judge of this court granted a COA on Clark’s claim that he might have been convicted of a non-existent crime, but denied a COA on any other issues. Later, Clark renewed his motion for a COA on his ineffective assistance of appellate counsel claim, but his motion was denied, as was his motion for reconsideration. Following oral argument, however, we granted his request for a COA on the ineffective assistance of appellate counsel claim and asked both parties to file supplemental briefs on this issue. See Jones v. United States, 224 F.3d 1251, 1256 (11th Cir.2000) (expanding the COA to include a previously uncertified issue based on the petitioner’s explicit request to expand the COA); 11th Cir. R. 27-l(g) (noting that the merits panel may alter, amend, or vacate a ruling by a single judge or a motions panel). II.ISSUES ON APPEAL (1) Whether appellant was convicted of attempted first-degree felony murder and, if so, did this conviction violate his constitutional rights. (2) Whether the district court erred in denying relief on Clark’s claim that he was denied effective assistance of appellate counsel in violation of his constitutional rights. We limit our consideration to these two issues, as we must. Murray v. United States, 145 F.3d 1249, 1251 (11th Cir.1998). III.STANDARDS OF REVIEW We review de novo the district court’s dismissal of a § 2254 petition. Brownlee v. Haley, 306 F.3d 1043, 1058 (11th Cir.2002). We review the district court’s factual determinations for clear error, and we must affirm the court’s factual findings unless the record lacks “substantial evidence” to support the court’s determinations. Drew v. Dep’t of Corr., 297 F.3d 1278, 1289 (11th Cir.2002). An ineffective assistance of appellate counsel claim presents a mixed question of law and fact," }, { "docid": "15989991", "title": "", "text": "fair trial, as alleged in Claim 14; (3) whether Avette Barrett’s and Allison Eckstrom’s plea agreements were unduly coercive, as alleged in Claims 1 and 2; and (4) whether Special Instruction 60, which the district court gave during the penalty phase, denied Petitioner a fair trial, as alleged in Claims 36 and 40. We hereby grant a COA as to those issues. B. Claims that the District Court Dismissed on Procedural Grounds In Slack, the Court set out a two-step analysis for deciding whether to grant a COA when a district court “denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim.” Slack, 120 S.Ct. at 1604. In those circumstances, a COA should issue if the prisoner can show: (1) “that jurists of reason would find it debatable whether the district court was correct in its procedural ruling”; and (2) “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.” Id. Here, Petitioner appeals the district court’s dismissal, on procedural grounds, of all or part of Claims 8, 17, 37, and 38. In determining whether to grant a COA on those claims, we apply the two-step analysis from Slack. First, we consider whether the district court’s procedural ruling was debatable among jurists of reason. We conclude that it was. The district court dismissed the claims on the ground that they previously bad been denied by the California Supreme Court on an independent and adequate state-law ground. In a federal habeas action brought by a state prisoner under 28 U.S.C. § 2254, a federal court “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). In this case, the California Supreme Court had denied Petitioner’s second state-court petition because it was untimely under the holding of Clark, 21 Cal.Rptr.2d 509, 855 P.2d at" }, { "docid": "13985815", "title": "", "text": "and the Texas Court of Criminal Appeals so ordered. The federal district court denied Leal’s petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 and sua sponte denied a COA. II To obtain a COA, Leal must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To satisfy this standard, he “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). “[A] claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail.” Miller-El v. Cockrell, 537 U.S. 322, 338, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 123 S.Ct. 1029. While the nature of a capital case is not of itself sufficient to warrant the issuance of a COA, in a death penalty case “any doubts as to whether a COA should issue must be resolved in [the petitioner’s] favor.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.2000) (citing Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000)). In determining whether a COA should be granted, we remain cognizant of the standard of review imposed upon the district court by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). A district court may grant habeas relief only if it determines that the state court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or “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)(1), (2). The state court’s findings of fact are entitled to a presumption of correctness and the petitioner may overcome that presumption only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Ill Leal" }, { "docid": "7191497", "title": "", "text": "in Clark’s Rule 3.850 motion, but the court ruled that Clark’s ineffective assistance of appellate counsel claim, to the extent it was presented during the Rule 3.850 proceeding, was not cognizable in a Rule 3.850 motion. See Vining v. State, 827 So.2d 201, 216 (Fla.2002); supra note 2. Clark appealed the denial of his Rule 3.850 motion to the First District Court of Appeal. The appellate court reversed the circuit court in part, concluding that the imposition of consecutive sentences was erroneous, but the court ruled that there was no merit to the remaining arguments presented in Clark’s Rule 3.850 motion and rejected these arguments without discussion. Clark was resentenced by the circuit court to a 30-year term of imprisonment on the murder charge and a concurrent 15-year term on the burglary charge. In 1999, Clark timely filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 in federal district court. In his § 2254 petition, Clark challenged his conviction on three grounds: (1) the jury was permitted to convict him on a charge of a nonexistent crime, attempted felony murder; (2) he was denied the effective assistance of appellate counsel; and (3) he was denied the effective assistance of trial counsel. Without conducting an evidentia-ry hearing, the district court denied Clark’s § 2254 petition. After the district court denied Clark’s application for a certificate of appealability (COA), a judge of this court granted a COA on Clark’s claim that he might have been convicted of a non-existent crime, but denied a COA on any other issues. Later, Clark renewed his motion for a COA on his ineffective assistance of appellate counsel claim, but his motion was denied, as was his motion for reconsideration. Following oral argument, however, we granted his request for a COA on the ineffective assistance of appellate counsel claim and asked both parties to file supplemental briefs on this issue. See Jones v. United States, 224 F.3d 1251, 1256 (11th Cir.2000) (expanding the COA to include a previously uncertified issue based on the petitioner’s explicit request to expand the COA);" }, { "docid": "5308029", "title": "", "text": "denied Clark’s request for a COA on each of the issues raised herein. III. DISCUSSION Clark seeks a COA from this Court on each of the following issues: (1) whether summary judgment is an appropriate mechanism for the disposition of petitions for habeas corpus relief filed pursuant to 28 U.S.C. § 2254; (2) whether Clark was afforded an adequate opportunity to develop the factual basis underlying his claims for relief, i.e. whether he was entitled to discovery and an evidentiary hearing before summary judgment would have been appropriate; (3) whether the district court erred in deferring to state court findings regarding his claims A, B, C, E, and F, because he had not been afforded the opportunity to develop the underlying factual basis for those claims at an evidentiary hearing; (4) whether the district court erred in failing to grant a continuance so as to permit Clark to develop the underlying factual basis of his claims; (5) whether the district court erred in denying Clark the appointment of an expert in forensic pathology to help develop his claims; (6) whether the district court erred in deferring to as reasonable the state habeas court’s findings regarding his claims that a juror failed to disclose the extent of her relationship with the prosecutor thus violating his due process rights; and (7) whether the trial court’s failure to define “mitigating evidence” in the punishment charge to the jury unconstitutionally denied Clark an appropriate vehicle for consideration of such evidence. Clark’s petition for writ of habeas corpus was filed on June 22, 1998, and is thus governed by the provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997); United States v. Carter, 117 F.3d 262 (5th Cir.1997). Under AEDPA, before an appeal from the dismissal or denial of a § 2254 habeas petition can proceed, the petitioner must first obtain a COA, which will issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). We have held" }, { "docid": "14010033", "title": "", "text": "denied. II To receive a COA, Cardenas must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district court rejects a claim on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). In capital cases, doubts about whether the petitioner has met the standard must be resolved in favor of the petitioner. Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.2000). When a petition is dismissed on procedural grounds, the petitioner must show that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484, 120 S.Ct. 1595 (emphasis added). At the COA stage, a court should “limit its examination to a threshold inquiry into the underlying merit of his claims.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Slack, 529 U.S. at 481, 120 S.Ct. 1595). We do not fully consider “the factual or legal bases adduced in support of the claims,” and a petitioner need not show that an appeal will succeed in order to be entitled to a COA. Id. at 336-37, 123 S.Ct. 1029. “The question is the debatability of the underlying constitutional claim, not the resolution of that debate.” Id. at 342, 120 S.Ct. 1595. The district court should evaluate the habeas petition to see if the state court’s determination “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). A decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless it “resulted in a decision that was based on an unreasonable determination of the facts in light" }, { "docid": "2257111", "title": "", "text": "Rutledge v. United States, 230 F.3d 1041, 1047 (7th Cir.2000), cert. denied, 531 U.S. 1199, 121 S.Ct. 1207, 149 L.Ed.2d 120 (2001) (assuming without discussion that a COA is necessary to appeal the denial of a Rule 60(b) motion in a habeas case); Zeitvogel v. Bowersox, 103 F.3d 56, 57 (8th Cir.), cert. denied, 519 U.S. 1036, 117 S.Ct. 604, 136 L.Ed.2d 530 (1996) (same). We thus expressly hold that the COA requirement provided in 28 U.S.C. § 2253(c) applies to an order denying a Rule 60(b) motion for relief from a judgment denying a § 2254 petition. Kellogg is therefore required to obtain a COA to go forward with his appeal. We now address the merits of his motion for a COA. In order to obtain a COA, the petitioner must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard is designed to permit an appeal to go forward only if the appeal has a threshold quantum of merit. In the context of a denial of a Rule 60(b) motion, a substantial showing that the district court abused its discretion indicates that the appeal has the threshold quantum of merit to go forward. See Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir.1998), cert. denied, 526 U.S. 1146, 119 S.Ct. 2022, 143 L.Ed.2d 1033 (1999) (holding that the standard of review of a district court order granting or denying a Rule 60(b) motion is whether the order constituted an abuse of discretion). Accordingly, we hold, following the Supreme Court’s formulation in Slack, 529 U.S. at 484, 120 S.Ct. 1595, that a COA should issue only if the petitioner 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 (2) jurists of reason would find it debatable whether the underlying habeas petition, in light of the grounds alleged to support the 60(b) motion, states a valid claim of the denial of a constitutional right. See also Lynch v. Blodgett, 999 F.2d 401, 403 (9th" }, { "docid": "1388757", "title": "", "text": "history). Two important differences between a CPC and a COA cast doubt on the validity of the current CPC to permit Franklin’s appeal to proceed. First, unlike a CPC, a COA “shall indicate which specific issue or issues” show “the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)-(3); see Tompkins, 193 F.3d at 1330 (noting that CPC did not necessarily specify issues). Second, to grant a COA on a procedural question — as would be appropriate here, since the district court denied Franklin’s petition on procedural grounds — we must evaluate not only the merit of the procedural arguments, but also the merit of the underlying claims. If “jurists of reason” would not find it debatable both whether “the petition states a valid claim of the denial of a constitutional right” and whether “the district court was correct in its procedural ruling,” then we may not grant a COA on a procedural issue. See Slack, 120 S.Ct. at 1600-01. While these differences matter, the grant of a CPC rather than a COA here is not fatal to the appeal. By applying AED-PA’s standards to this appeal and issuing a proper COA (if warranted), this panel may “fix” the inadequacies of the present CPC. The CPC was issued by a single judge, and as a panel we may revisit the ruling. See Fed. R.App. P. 27(c); 11th Cir. R. 27-l(g). A past panel has indeed revisited a COA granted by a single judge in order to confirm that it complies with statutory standards. See Henry, 197 F.3d at 1363-64. And the Court in Slack remanded the ease in part for the court of appeals to apply the appropriate standard, thus implying that defective leave to appeal neither dooms the appeal nor deprives the appellate courts of jurisdiction. See Slack, 120 S.Ct. at 1607. So we proceed to reevaluate the appeal under Slack. Franklin’s appeal presents two distinct procedural questions. The first is whether Franklin has procedurally defaulted his claim that the 1982 indictment was void because the foreperson of the grand jury did not sign it, and that the circuit" }, { "docid": "23357699", "title": "", "text": "and prejudice for the default or a fundamental miscarriage of justice resulting from the failure to consider the claims. II. DISCUSSION A COA is a jurisdictional prerequisite to our review of a petition for a writ of habeas corpus. Miller-El v. Cockrell, 587 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). We will issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, an applicant must demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotations omitted). “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.” Id. We have thoroughly reviewed the entire record, the district court’s order, as well as Harris’ combined opening brief and request for a COA. While we disagree with the district court that the fifth claim was untimely, we nevertheless conclude the OCCA’s resolution of that claim — in sufficiency of the evidence — was not “contrary to, or involvef ] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” nor did it “resultf ] 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). We agree with the district court’s adjudication of the remaining claims as they are either procedurally barred or Harris failed to show the OCCA’s resolution of them satisfied the “highly deferential” §" }, { "docid": "23455713", "title": "", "text": "request, in part, on August 7, 2002. Nardi’s initial request to broaden the issues certified for appeal — submitted on August 15, 2002 and received on August 26, 2002 — was also timely. 9th Cir. R. 22-1(d) (requiring petitioner to file a motion for broader certification within thirty-five days of the district court’s order partially denying COA). And Nardi filed his current motion to expand the issues certified for appeal at the completion of briefing, in accordance with Advisory Committee Note to Rule 22-1. Finally, under Hiivala, we may consider Nardi’s request to review issues even if they were not previously presented to the district court or motions panel. As we have the authority, we now consider Nardi’s request. B. We evaluate a request for broadening a COA using the same standard applied by the district court when initially determining whether to grant a COA: the “petitioner’s assertion of a claim must make a ‘substantial showing of the denial of a constitutional right.’ ” Hiivala, 195 F.3d at 1104 (quoting 28 U.S.C. 2253(c)(2)). However, the standard is “somewhat more complicated” when “the district court[has] denie[d] a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim.... ” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Under those circumstances: 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. Id. Upon request, a merits panel may review any issue that meets Slack’s two-prong standard, including claims not previously presented to a motions panel for certification. Hiivala, 195 F.3d at 1104. Nardi meets the standard for broadening the COA to include whether Respondent’s failure to raise the statute of limitations in its answer precluded the district court from dismissing the petition as untimely. First, jurists of reason would find it debatable whether the district court was correct in its procedural ruling. The Ninth" }, { "docid": "17386613", "title": "", "text": "the court held that Snow had failed to allege any specific errors on which a cumulative-error claim could be based. Nor does Snow sufficiently present the claim in his subse quent PLA. He merely lists the appellate court’s denial of his cumulative error claim as one of several points relied on for reversal. See Ex. X at 1. Snow presents no argument that the procedural default of the claim should be excused. The cumulative-error claim fails on the merits because Snow has not shown any errors that might be aggregated. Thus, I deny Snow’s petition insofar, as it is based on his cumulative error claim. VIII. Certificate of Appealability Rule 11 of the Rules Governing Section 2254 Cases in the United States provides: “The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), 28 U.S.C. foil. § 2254. “If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).” Id. “To obtain a COA under § 2253(c), a habeas prisoner must make a substantial showing of the denial of a constitutional right,” which includes “showing that reasonable jurists could debate whether ,,. the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000) (quotation marks omitted). Because I do not believe that reasonable jurists could debate whether Snow’s petition should have been resolved in a different manner, I decline to issue a certificate of appealability. IX. Conclusion , For the reasons above, I deny Snow’s petition for habeas relief and I decline to issue a certificate of appealability. . The state’s exhibits are identified alphabetically. Snow’s exhibits are identified numerically. . Susan Claycomb, Snow’s girlfriend at the time of the murder, was also indicted in connection with the Clark station crime. She went to trial shortly before Snow and was acquitted. . Snow was charged with three" }, { "docid": "5308030", "title": "", "text": "develop his claims; (6) whether the district court erred in deferring to as reasonable the state habeas court’s findings regarding his claims that a juror failed to disclose the extent of her relationship with the prosecutor thus violating his due process rights; and (7) whether the trial court’s failure to define “mitigating evidence” in the punishment charge to the jury unconstitutionally denied Clark an appropriate vehicle for consideration of such evidence. Clark’s petition for writ of habeas corpus was filed on June 22, 1998, and is thus governed by the provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2068, 138 L.Ed.2d 481 (1997); United States v. Carter, 117 F.3d 262 (5th Cir.1997). Under AEDPA, before an appeal from the dismissal or denial of a § 2254 habeas petition can proceed, the petitioner must first obtain a COA, which will issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). We have held that a petitioner makes a “substantial showing” when he demonstrates that his petition involves issues which are debatable among jurists of reason, that another court could resolve the issues differently, or that the issues are suitable enough to deserve encouragement to proceed further. See Drinkard v. Johnson, 97 F.3d 751, 755 (5th Cir.1996) overruled in part on other grounds, Lindh, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The same standards which governed issuance of the pre-AEDPA version of the COA, the certifícate of probable cause (“CPC”), apply to requests for a COA. See id. at 756. The post-AEDPA version of 28 U.S.C. § 2254(d) provides as follows: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly" }, { "docid": "23263595", "title": "", "text": "Pham appeals, arguing that the district court erred in finding that the government’s failure to disclose the underlying notes did not violate Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In his briefing of several uncertified issues, Pham further argues that the district court abused its discretion by declining to order discovery of the notes under Rule 6(a) of the Federal Rules Governing Section 2254 Cases (“Rule 6(a)”) and erred in denying his ineffective assistance of counsel claim. He also argues that the trial court’s jury'instructions violated his rights to due process and trial by jury. This court reviews de novo the district court’s decision to deny a 28 U.S.C. § 2254 habeas petition. Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir.2003). Denial of a discovery request under Rule 6(a) is reviewed for abuse of discretion. See Jones v. Wood, 114 F.3d 1002, 1009 (9th Cir.1997). Because Pham’s habeas petition was filed on March 19, 2002, after the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996), AEDPA’s provisions apply. See Delgado v. Lewis, 223 F.3d 976, 979 (9th Cir.2000). Under AEDPA, the scope of review in a habeas case is limited to those issues specified in the certificate of appealability (COA). Nardi v. Stewart, 364 F.3d 1134, 1137 (9th Cir.2004). The district court granted a COA only with respect to the Brady issue raised in Pham’s habeas petition. Although Pham’s Rule 6(a) discovery request, like his Brady claim, involves the state’s suppression of the laboratory notes, it is unclear whether the Rule 6(a) argument falls within the scope of the COA granted on the Brady issue. However, under Ninth Circuit Rule 22-l(e), a habeas petitioner may move to expand the COA by presenting uncertified issues, under a separate heading, in his opening brief. “Uncertified issues raised and designated in this manner will be construed as a motion to expand the COA and will be addressed by the merits panel to such extent as it deems appropriate.” Ninth Circuit Rule 22-l(e). In evaluating a request" } ]

[ { "docid": "19327882", "title": "", "text": "The automatic stay, for example, still blocks the creditor’s right to foreclose, and debtors can cure prepetition defaults on a home mortgage under § 1322(b)(5). See Nobelman, 508 U.S. at 330, 113 S.Ct. at 2110. The McDonalds argue that because No-belman stated that § 506(a) still applies and determines the “status” of a creditor’s claim, it follows that a wholly unsecured mortgage is no longer a secured claim under the Bankruptcy Code and hence is not subject to the antimodification clause. Nobelman specifically said that the bank was a holder of a secured claim “because the petitioner’s home retains $23,500 of value as collateral.” 508 U.S. at 329, 113 S.Ct. at 2110. In the McDonalds’ case they allege that there is no value left in their home as collateral for Master Financial’s mortgage. So far the only appellate panel to apply Nobelman to a wholly unsecured mortgage has agreed with the McDonalds that such a mortgage is not subject to the antimodi-fication clause. In re Lam, 211 B.R. 36 (9th Cir. BAP 1997), appeal dismissed, 192 F.3d 1309 (9th Cir.1999). The many bankruptcy courts to consider the issue have split, with a majority favoring the Mc-Donalds’ view but some adopting the opposing view. Bankruptcy treatises are also divided on the issue. Compare 5 Collier on Bankruptcy, § 1322.06[l][a] at 1322-16 (“If the creditor had held a lien on property that had no value (perhaps because the property was fully encumbered by prior liens), then under this analysis it would not have been a ‘holder of a secured claim’ entitled to protection by section 1322(b)(2).”) with Keith M. Lundin, Chapter 13 Bankruptcy 2d ed., § 4.46 at 4-56 (“Although the concept of an ‘unsecured secured claim’ is impossible under § 506(a), Justice Thomas’s focus on the ‘rights’ of the ‘holders’ of a ‘claim secured only by ...’ in § 1322(b)(2) extends the protection from modification ... without regard to the allowance or disallowance of secured claims under § 506(a).”). While we acknowledge that there is some ambiguity in the language in Nobel-man, we believe that the better interpretation is that reached" } ]

[ { "docid": "6162841", "title": "", "text": "unsecured claims, or leave unaffected the rights of holders of any class of claims[.] 11 U.S.C. § 1322(b)(2). Assuming that PSB Lending holds “a claim secured only by a security interest in real property that is the debtor’s principal residence,” it might qualify for protection against modification. If so, its lien would survive bankruptcy and could not bé avoided by Zim-mer. Although it seems paradoxical on its face, PSB Lending’s claim is arguably an “unsecured claim” that is also “a claim secured only by a security interest in real property that is the debtor’s principal residence.” Whether the antimodification clause of § 1322(b)(2) applies to the holder of such a claim is a question of first impression in this Circuit. Numerous other jurisdictions, however, have addressed this question in dozens of published opinions. The position adopted by a majority of courts is that the antimodification clause does not apply to wholly unsecured homestead liens, but a substantial minority of courts has taken the contrary position. See, e.g., Bartee v. Tara Colony Homeowners Ass’n (In re Bartee), 212 F.3d 277, 288-89 n. 15 & n. 16 (5th Cir.2000) (collecting cases). Both camps believe their preferred result to be compelled by the Supreme Court’s decision in Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993). The Supreme Court’s decision in Nobel-man In Nobelman, the Supreme Court considered the question of whether a partially-secured claim secured by a homestead lien could be bifurcated into its secured and unsecured components, and “stripped down” to the value of the secured claim. See id. at 326-27, 113 S.Ct. 2106. The debtors argued that, under § 506(a), the holder of an undersecured mortgage — for which the value of the claim exceeds the value of the property — only holds a “secured claim” to the extent of the value of the property, and holds an “unsecured claim” for the excess value of the mortgage. Id. at 328, 113 S.Ct. 2106. Because § 1322(b)(2) only protects the rights of “holders of secured claims,” they maintained that only the secured portion of the" }, { "docid": "20540005", "title": "", "text": "of the security interest. Section 1322(b)(2) prohibits such a modification where, as here, the lender’s claim is secured only by a lien on the debtor’s principal residence. Id. at 332, 113 S.Ct. 2106. The Court explained that the debtors “cannot modify the payment and interest terms for the unsecured component, as they propose to do, without also modifying the terms of the secured component.” Id. at 331, 109 S.Ct. 1026. Nobelman held that as long as a creditor’s lien is at least partially secured, § 1322(b)(2) precludes stripping any part of that lien. The Court had no occasion to address the question presented in this case: What result if the creditor’s lien is wholly unsecured under § 506(a)(1) because the creditor’s interest in the collateral that secures the lien has no value? The Agency argues that because its lien is secured only by a security interest in the Schmidts’ principal residence, § 1322(b)(2)’s antimodification provision protects it. Section 1322(b)(2) governs when a bankruptcy court can “modify the rights of holders of secured claims” and the rights of “holders of unsecured claims.” “Secured claim” and “unsecured claim” are terms of art in the Bankruptcy Code, so it is necessary first to consult § 506(a)(1) to determine which type of claim is involved. Nobelman “confirm[ed] that § 506(a) is the starting point in the analysis and is not rendered a nullity in the Chapter 13 context.” Bartee, 212 F.3d at 286. We agree with other circuits that when considering the rights of creditors who hold homestead liens, “the dividing line drawn by § 1322(b)(2) runs between the lienholder whose security interest in the homestead property has some ‘value,’ see § 506(a), and the lienholder whose security interest is valueless.” Lane, 280 F.3d at 668. “Section 1322(b)(2) protects a creditor’s rights in a mortgage lien only where the debtor’s residence retains enough value — after accounting for other encumbrances that have priority over the lien — so that the lien is at least partially secured under Section 506(a).” Pond, 252 F.3d at 126. Although the Agency acknowledges that its claim is not a" }, { "docid": "8467085", "title": "", "text": "66, 148 L.Ed.2d 31 (2000); Domestic Bank v. Mann (In re Mann), 249 B.R. 831, 834 n. 6, 835 n. 8, 836 n. 9 (1st Cir. B.A.P. 2000) (collecting treatises and cases). The majority view, which the District Court in the instant case adopted, is that the antimodification exception is triggered only where there is sufficient value in the underlying collateral to cover some portion of a creditor’s claim. The courts that have espoused this position note, inter alia, that the Supreme Court in Nobelman first looked to Section 506(a) to determine whether any part of the creditor’s claim was secured. Once the Court determined that the creditor’s claim was at least partially secured under this provision, it held that the antimodification exception of Section 1322(b)(2) protected the creditor’s rights in the entire claim. According to the majority view, therefore, the antimodi-fication exception applies only where a creditor’s claim is at least partially secured under Section 506(a). A sizeable minority of courts, however, interprets Nobelman differently. According to these courts, Nobelman stands for the proposition that the value of the collateral underlying a lien is irrelevant to whether that lien is modifiable by a Chap ter 13 plan. Under this view, as long as the collateral underlying a lien is the debt- or’s principal residential property, the lien cannot be voided under Section 1322(b)(2) because to do so would modify the “rights of holders of ... a claim secured only by a security interest in ... the debtor’s principal residence,” 11 U.S.C. § 1322(b)(2). Upon a review of the relevant statutory language, as well as the Supreme Court’s decision in Nobelman, we agree with the majority view on this issue and therefore adopt it here. In Nobelman, the Supreme Court began its analysis by noting that it is “correct [to] look[ ] to § 506(a) for a judicial valuation of the collateral to determine the status of [a creditor]’s secured claim.” Nobelman, 508 U.S. at 328, 113 S.Ct. 2106. The Court then noted that the creditor in that case was a “ ‘holder’ of a ‘secured claim,’ because [the debtors’]" }, { "docid": "3825704", "title": "", "text": "shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest. 11 U.S.C. § 506(a). Thus, under § 506(a), “an allowed claim secured by a lien on the debtor’s property is a secured claim to the extent of the value of the property; to the extent the claim exceeds the value of the property, it is an unsecured claim.” No-belman, 508 U.S. at 328, 113 S.Ct. 2106. However, § 1322(b)(2), which applies only to Chapter 13 bankruptcy, provides that 11 U.S.C. § 1322(b)(2). The Nobelman Court concluded that where a creditor’s lien is at least partially secured, § 506(a) does not operate to eliminate the creditor’s rights in the unsecured component. No-belman, 508 U.S. at 332, 113 S.Ct. 2106; see Johnson, 226 B.R. at 366. (b) Subject to subsections (a) and (c) of this section, the plan may— modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence As noted in Johnson, the Supreme Court’s decision in Nobelman left open the question of whether its holding extends to junior lienholders, like SunTrust, who hold a wholly unsecured homestead lien. Johnson, 226 B.R. at 366. After a detailed analysis of Nobelman, this Court adopted the majority view, which espouses the position that the anti-modification provision in § 1322(b)(2) protects only those homestead liens that are at least partially secured — as that term is defined by § 506(a) — by some existing equity after accounting for encumbrances that have senior priority. Johnson, 226 B.R. at 369. Since the decision in Johnson, six Courts of Appeals have likewise concluded that a wholly unsecured lien is not protected under the anti-modification provision of § 1322(b)(2). Zimmer v. PSB Lending Corp. (in re Zimmer), 313 F.3d 1220 (9th Cir.2002); Lane v. W. Interstate Bancorp (In re Lane), 280 F.3d 663 (6th Cir.2002); Pond v. Farm Specialist Realty (In" }, { "docid": "14396", "title": "", "text": "subject to set off is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property .... 11 U.S.C. § 506(a). Section 1322(b)(2) permits a bankruptcy plan to “modify the rights of holders of ... unsecured claims ...,” but prohibits the modification of “a claim secured only by a security interest in real property that is the debtor’s principal residence ....” A wholly unsecured lien receives no protection under the antimodification provision of § 1322(b)(2), and a debtors’ chapter 13 plan can void, or “strip off,” this lien. Pond v. Farm Specialist Realty (In re Pond), 252 F.3d 122, 126, 127 (2nd Cir.2001); followed by In re Whitmore at *2. But an undersecured lien where “some portion” of the lien is secured by a debtor’s principal residence does benefit from the anti modification provisions of § 1322(b)(2), and § 1322(b)(2) protects creditor’s rights in the lien in their entirety. In re Pond, 252 F.3d at 125, following Nobelman v. American Sav. Bank, 508 U.S. 324, 328-31, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993). A debtor may not strip off only the unsecured portion of an undersecured creditor’s mortgage lien. Id. at 125. Valuation Date The parties in the instant adversary proceeding do not agree on the date the debtors’ principal residence should be valued for purposes of determining whether creditor is wholly unsecured such that debtors may strip off creditor’s third mortgage lien. If the proper valuation date is the petition date, creditor is wholly unsecured, and the debtors may strip off creditor’s lien. If the proper valuation date approximates the date of debtors’ initiation of this adversary proceeding, creditor is merely undersecured and is immune to debtors’ attempt to strip its lien from their principal residence. Nobelman relied on the property’s uneontroverted valuation at the date of the debtors modified plan, but the valuation date does not appear to this court to have been a contested issue in that bankruptcy case. 508 U.S. at 326, 113 S.Ct. 2106. In" }, { "docid": "20540004", "title": "", "text": "on their home, which was valued at $23,500. 508 U.S. at 326, 113 S.Ct. 2106. The Court explained that the debtors “were correct in looking to § 506(a) for a judicial valuation of the collateral to determine the status of the bank’s secured claim.” Id. at 328, 113 S.Ct. 2106. Next, the Court observed that “the bank is indisputably the holder of a claim secured by a lien on [the debtors’] home,” id., “because [the debtors’] home retains $23,500 of value as collateral. The portion of the bank’s claim that exceeds $23,500 is an ‘unsecured claim componen[t]’ under § 506(a).” Id. at 329, 113 S.Ct. 2106 (second alteration in original) (quoting Ron Pair Enters., 489 U.S. at 239 n. 3, 109 S.Ct. 1026). The Court ultimately concluded that the debtors could not strip off the unsecured portion of the bank’s undersecured lien: [T]o give effect to § 506(a)’s valuation and bifurcation of secured claims through a Chapter 13 plan in the manner [the debtors] propose would require a modification of the rights of the holder of the security interest. Section 1322(b)(2) prohibits such a modification where, as here, the lender’s claim is secured only by a lien on the debtor’s principal residence. Id. at 332, 113 S.Ct. 2106. The Court explained that the debtors “cannot modify the payment and interest terms for the unsecured component, as they propose to do, without also modifying the terms of the secured component.” Id. at 331, 109 S.Ct. 1026. Nobelman held that as long as a creditor’s lien is at least partially secured, § 1322(b)(2) precludes stripping any part of that lien. The Court had no occasion to address the question presented in this case: What result if the creditor’s lien is wholly unsecured under § 506(a)(1) because the creditor’s interest in the collateral that secures the lien has no value? The Agency argues that because its lien is secured only by a security interest in the Schmidts’ principal residence, § 1322(b)(2)’s antimodification provision protects it. Section 1322(b)(2) governs when a bankruptcy court can “modify the rights of holders of secured claims” and the" }, { "docid": "16175821", "title": "", "text": "2106, 124 L.Ed.2d 228 (1993), in which the debtor sought to “strip down” the homestead lender’s secured claim of $71,335.00 to the home’s reduced value of $23,500.00. The Court foreclosed this option by holding that “ § 1322(b)(2) prohibits a Chapter 13 debtor from relying on § 506(a) to reduce an undersecured homestead mortgage to the fair market value of the mortgaged residence.” 508 U.S. at 325-26,113 S.Ct. at 2108. Acknowledging that section 506(a) allows bifurcation of claims into secured and unsecured components, the Court nevertheless concluded that the most sensible interpretation of section 1322(b)(2) was that it protected even the unsecured components of a partially secured claim. See Nobelman, 508 U.S. at 330-32, 113 S.Ct. at 2111. The concurring opinion found this result also comported with Congress’s intent. See id. at 332, 113 S.Ct. at 2112 (Stevens, J., concurring) (Section 1322(b)(2)’s “legislative history indicated] that favorable treatment of residential mortgagees was intended to encourage the flow of capital into the home lending market.”). The Nobelman Court left open the issue before us in this appeal, that is, whether its holding extends to wholly unsecured homestead mortgages. Subsequent consideration of this issue has sharply divided bankruptcy and district courts, see 5 Norton Bankruptcy Law and Practice 2d § 121:5, nn. 57 & 57.5 (2000) (citing cases), and bankruptcy scholars, com/pare 8 Collier on Bankruptcy § 1322.06 (Lawrence P. King ed., 15th ed.2000) with Keith M. Lun-din, Chapter 13 Bankruptcy § 4.46 (2d ed.1994). This split is understandable in light of the seemingly contradictory language used in Nobelman, dividing the courts into two interpretive camps. The majority view has focused on the following language to support its conclusion that the antimodification provision protects only undersecured, and not wholly unsecured, homestead lenders: “even if we accept petitioners’ valuation [under section 506(a) ], the bank is still the ‘holder’ of a ‘secured claim,’ because petitioners’ home retains $23,500 of value as collateral.” Nobelman, 508 U.S. at 329, 113 S.Ct. at 2110. Under this view, the antimodification protection afforded by section 1322(b)(2) applies only when the creditor’s claim is at least partially secured. The" }, { "docid": "8467083", "title": "", "text": "— permits a Chapter 13 debtor’s plan to “modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence. ...” 11 U.S.C. § 1322(b)(2) (emphasis added). The question presented here is whether defendants’ lien falls within the antimodifi-cation exception of Section 1322(b)(2) for claims “secured only by a security interest in ... the debtor’s principal residence,” because it is wholly “unsecured” under Section 506(a). The Supreme Court considered a similar issue in Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993). In that case, a Chapter 13 debtor sought to bifurcate a creditor’s undersecured residential mortgage lien into a secured lien and an unsecured lien, so that only the secured portion of the mortgage was protected under the antimo-dification exception of Section 1322(b)(2). Specifically, the debtors’ principal residence was valued at $23,500, and the lien at issue was for $71,335. See id. at 326, 113 S.Ct. 2106. The debtors sought to separate this lien under Section 506(a) into a secured claim of $23,500 and an unsecured claim of $47,835, and then void the unsecured claim under Section 1322(b)(2) as a claim not “secured” by their principal residence. The Supreme Court rejected the proposal. The Court held that, as long as some portion of the lien was secured by the residence, the creditor was a holder of “a claim secured only by ... the debtor’s principal residence,” and its rights in the entire hen were protected under the anti-modification exception. See id. at 328-31, 113 S.Ct. 2106. Accordingly, the debtors’ Chapter 13 plan could not void the unsecured component of the creditor’s mortgage lien. The Nobelman Court, however, left open the issue before us — namely, whether its holding extends to a holder of a wholly unsecured homestead lien. This issue has sharply divided bankruptcy and district courts, as well as bankruptcy scholars. See McDonald v. Master Fin., Inc. (In re McDonald), 205 F.3d 606, 610 nn. 2-3 (3d Cir.) (collecting cases), cert. denied, 531 U.S. 822, 121 S.Ct." }, { "docid": "8467082", "title": "", "text": "U.S.C. § 1322(b)(2). According to the District Court, defendants’ hen was wholly “unsecured” under 11 U.S.C. § 506(a) because there was no equity in plaintiffs’ property to cover the hen; therefore, the hen was not protected under the antimodi-fication exception of 11 U.S.C. § 1322(b)(2) and could be voided. Defendants challenge this holding on appeal. II. Discussion This appeal involves the interaction of two provisions of the Bankruptcy Code— Section 506(a) and Section 1322(b)(2). The first of these provisions defines the secured and unsecured components of a creditor’s allowed claim according to the value of the underlying collateral: An allowed claim of a creditor secured by a hen on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property ... and is an unsecured claim to the extent that the value of such creditor’s interest ... is less than the amount of such allowed claim. 11 U.S.C. § 506(a). The second provision — Section 1322(b)(2) — permits a Chapter 13 debtor’s plan to “modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence. ...” 11 U.S.C. § 1322(b)(2) (emphasis added). The question presented here is whether defendants’ lien falls within the antimodifi-cation exception of Section 1322(b)(2) for claims “secured only by a security interest in ... the debtor’s principal residence,” because it is wholly “unsecured” under Section 506(a). The Supreme Court considered a similar issue in Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993). In that case, a Chapter 13 debtor sought to bifurcate a creditor’s undersecured residential mortgage lien into a secured lien and an unsecured lien, so that only the secured portion of the mortgage was protected under the antimo-dification exception of Section 1322(b)(2). Specifically, the debtors’ principal residence was valued at $23,500, and the lien at issue was for $71,335. See id. at 326, 113 S.Ct. 2106. The debtors sought to separate this" }, { "docid": "3694433", "title": "", "text": "12 and 13. In re Bartee, 212 F.3d 277, 291 n. 21 (5th Cir.2000). In chapter 13, the debtor’s plan may “modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims ...” § 1322(b)(2) (emphasis added). The Supreme Court interpreted § 1322(b)(2) to prohibit a homestead mortgage lien from being stripped down to the value of the collateral, reading the language “a claim secured only by a security interest in real property” as “referring to the lienholder’s entire claim, including both the secured and the unsecured components of the claim.” Nobelman v. Am. Savings Bank, 508 U.S. 324, 331, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993). But this does not deal with the situation, presented by the case at bar, where the lien is completely unsecured—i.e., “a junior lien on a residence if the amount of a senior lien on a residence exceeds the value of the residence.” Tran, 431 B.R. at 234. Courts are generally in agreement that the junior lien can be “stripped-off’ under such circumstances in chapter 13. The “antimodi-flation exception of Section 1322(b)(2) protects a creditor’s rights in a mortgage lien only where the residence retains enough value ... so that the lien is at least partially secured under Section 506(a).... [A] wholly unsecured claim, as defined under Section 506(a), is not protected under the antimodification exception of Section 1322(b)(2).” In re Pond, 252 F.3d 122, 126 (2d Cir.2001); see also Bartee, Mann, supra; In re Tanner, 217 F.3d 1357 (11th Cir.2000); In re Zimmer, 313 F.3d 1220 (9th Cir.2002); In re Lane, 280 F.3d 663 (6th Cir.2002); In re McDonald, 205 F.3d 606 (3d Cir.2000); In re Griffey, 335 B.R. 166 (10th Cir. BAP 2005); In re King, 290 B.R. 641 (Bankr.C.D.Ill.2003). All of which brings us to § 1328(f)(1), and the more narrow issue presented by this appeal. Enacted as part of the Bankruptcy Abuse Prevention and Consumer Prevention" }, { "docid": "8467084", "title": "", "text": "lien under Section 506(a) into a secured claim of $23,500 and an unsecured claim of $47,835, and then void the unsecured claim under Section 1322(b)(2) as a claim not “secured” by their principal residence. The Supreme Court rejected the proposal. The Court held that, as long as some portion of the lien was secured by the residence, the creditor was a holder of “a claim secured only by ... the debtor’s principal residence,” and its rights in the entire hen were protected under the anti-modification exception. See id. at 328-31, 113 S.Ct. 2106. Accordingly, the debtors’ Chapter 13 plan could not void the unsecured component of the creditor’s mortgage lien. The Nobelman Court, however, left open the issue before us — namely, whether its holding extends to a holder of a wholly unsecured homestead lien. This issue has sharply divided bankruptcy and district courts, as well as bankruptcy scholars. See McDonald v. Master Fin., Inc. (In re McDonald), 205 F.3d 606, 610 nn. 2-3 (3d Cir.) (collecting cases), cert. denied, 531 U.S. 822, 121 S.Ct. 66, 148 L.Ed.2d 31 (2000); Domestic Bank v. Mann (In re Mann), 249 B.R. 831, 834 n. 6, 835 n. 8, 836 n. 9 (1st Cir. B.A.P. 2000) (collecting treatises and cases). The majority view, which the District Court in the instant case adopted, is that the antimodification exception is triggered only where there is sufficient value in the underlying collateral to cover some portion of a creditor’s claim. The courts that have espoused this position note, inter alia, that the Supreme Court in Nobelman first looked to Section 506(a) to determine whether any part of the creditor’s claim was secured. Once the Court determined that the creditor’s claim was at least partially secured under this provision, it held that the antimodification exception of Section 1322(b)(2) protected the creditor’s rights in the entire claim. According to the majority view, therefore, the antimodi-fication exception applies only where a creditor’s claim is at least partially secured under Section 506(a). A sizeable minority of courts, however, interprets Nobelman differently. According to these courts, Nobelman stands for the proposition" }, { "docid": "6162851", "title": "", "text": "such protection. Id. at 329-30, 113 S.Ct. 2106. The Court found that the rights of such a creditor were protected and, therefore, in order to protect such rights, interpreted the antimodification clause to encompass the entire claim of such a creditor so long as it was secured by a homestead lien. Id. at 330-31, 113 S.Ct. 2106. The minority position attempts to jump forward to the last step in this analysis— determining what is entitled to protection from modification — without considering whether the creditor even qualifies for such protection in the first place. While it is clear that the term “claim secured only by” in the antimodification clause is not limited to “secured claims,” it is equally clear that “holders of secured claims” does refer to the term of art as defined by § 506(a). The Nobelman Court recognized this when it pointed out that Congress used a different phrase in the anti-modification clause “rather than repeating the term of art ‘secured claim.’” Id. at 331, 113 S.Ct. 2106 (emphasis added). Looking to § 506(a) to determine which creditors are the “holders of secured claims,” a creditor in PSB Lending’s position plainly does not qualify. By taking the contrary position, the minority “fail[s] to appreciate the Nobelman Court’s conclusion that [the] ‘rights’ [of the creditor] flowed first from a lien which had some collateral value.” Mann, 249 B.R. at 837. While Dickerson I is correct in noting that the majority position places great emphasis on the valuation process, this emphasis is compelled by Nobelman and the statutory scheme: The courts in the minority too easily dismiss the role of a § 506(a) valuation. The Nobelman Court stated that, “By virtue of its mortgage contract with petitioners, the bank is indisputably the holder of a claim secured by a lien on petitioners’ home.” 508 U.S. at 328, 113 S.Ct. at 2110. In the very next sentence, the Supreme Court found that it was correct for a Chapter 13 debtor, in the context of a homestead lien, to seek a § 506(a) valuation. Id. Further, the Court stated that in this" }, { "docid": "16012571", "title": "", "text": "OPINION DAVID A. NELSON, Circuit Judge. The bankruptcy code expressly provides that a Chapter 13 bankruptcy plan may modify the rights of holders of “unsecured claims.” 11 U.S.C. § 1322(b)(2). This section also provides that such a plan may “modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence....” Id. Whether a lienholder has a “secured claim” or an “unsecured claim,” in the sense in which those terms are used in the bankruptcy code, depends on whether the lienholder’s interest in the collateral has economic value. See 11 U.S.C. § 506(a). Where a creditor holds a second mortgage on a homestead valued at less than the debtor’s secured obligation to a first mortgagee, for example, the holder of the second mortgage has only an “unsecured claim” for § 506(a) purposes. The appellee in the case at bar is such an unsecured creditor — a second mortgagee whose lien on the Chapter 13 debtor’s homestead is totally under water. If the hen were only partially under water (i.e. if the second mortgagee’s claim had a secured component, being unsecured only in part), the Supreme Court’s decision in Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993), teaches that the rights of the hen-holder would not be subject to modification. The question before us now is whether the implications of Nobelman would bar modification of the rights of a creditor who, although the holder of a hen on the Chapter 13 debtor’s homestead, has solely an “unsecured claim” under § 506(a). The issue is one on which the courts are divided. Under the majority view, it is permissible for a Chapter 13 plan to modify the rights of such an unsecured creditor; the minority view is that modification is prohibited. The bankruptcy court adopted the minority position in the case at bar, and the district court affirmed on appeal. We shall reverse. It does not appear to us that Nobelman forecloses what we take to be the better reading" }, { "docid": "6162845", "title": "", "text": "no dispute that the secured portion of the mortgage could not be modified, and under such circumstances there was no direction in the Bankruptcy Code as to how the terms of the mortgage could be readjusted by reducing its value to the secured portion without modifying the “rights” of the mortgage holder. Id. at 331-332, 113 S.Ct. 2106. Justice Stevens also noted, in a brief concurrence, that the Court’s result was in accordance with “legislative history indicating that favorable treatment of residential mortgagees was intended to encourage the flow of capital into the home lending market.” Id. at 332, 113 S.Ct. 2106 (Stevens, J., concurring) (citing Grubbs v. Houston First Am. Sav. Ass’n, 730 F.2d 236, 245-46 (1st Cir.1984)). The majority position The majority position, that § 1322(b)(2) does not prohibit avoidance of liens associated with wholly unsecured claims, has been adopted by all five Courts of Appeals to consider the issue, as well as two Bankruptcy Appellate Panels. Lane v. W. In terstate Bancorp (In re Lane), 280 F.3d 663, 667-69 (6th Cir.2002); Pond v. Farm Specialist Realty (In re Pond), 252 F.3d 122, 126 (2d Cir.2001); Tanner v. FirstPlus Fin., Inc. (In re Tanner), 217 F.3d 1357, 1359-60 (11th Cir.2000); Bartee, supra, 212 F.3d at 288, 295; McDonald v. Master Fin., Inc. (In re McDonald), 205 F.3d 606, 611 (3d Cir.2000); Domestic Bank v. Mann (In re Mann), 249 B.R. 831, 840 (B.A.P. 1st Cir.2000); Lam, supra, 211 B.R. at 40-41. One of the earliest and most influential of these cases is • our BAP’s opinion in Lam. The panel gave three primary reasons for its conclusion that a wholly unsecured hen may be avoided: 1) although the Nobelman Court focused on the rights of the creditor, the “rights” of a wholly unsecured creditor are “empty rights”; 2) in order to qualify for the antimodification protections, the creditor must first be a “holder of a secured claim”; and 3) extending antimodification protection might have the unwanted effects of inducing more filings under Chapter 11 and inducing creditors to obtain mortgages on overburdened property in order to avoid modification" }, { "docid": "6162846", "title": "", "text": "v. Farm Specialist Realty (In re Pond), 252 F.3d 122, 126 (2d Cir.2001); Tanner v. FirstPlus Fin., Inc. (In re Tanner), 217 F.3d 1357, 1359-60 (11th Cir.2000); Bartee, supra, 212 F.3d at 288, 295; McDonald v. Master Fin., Inc. (In re McDonald), 205 F.3d 606, 611 (3d Cir.2000); Domestic Bank v. Mann (In re Mann), 249 B.R. 831, 840 (B.A.P. 1st Cir.2000); Lam, supra, 211 B.R. at 40-41. One of the earliest and most influential of these cases is • our BAP’s opinion in Lam. The panel gave three primary reasons for its conclusion that a wholly unsecured hen may be avoided: 1) although the Nobelman Court focused on the rights of the creditor, the “rights” of a wholly unsecured creditor are “empty rights”; 2) in order to qualify for the antimodification protections, the creditor must first be a “holder of a secured claim”; and 3) extending antimodification protection might have the unwanted effects of inducing more filings under Chapter 11 and inducing creditors to obtain mortgages on overburdened property in order to avoid modification of their rights. 211 B.R. at 40-41. Other courts have focused primarily on the second reason cited in Lam, that a creditor that is not the holder of a secured claim simply cannot qualify for antimodifi-cation protection. The Sixth Circuit in Lane outlines this argument in near-syllogistic fashion: • Section 1322(b)(2) prohibits modification of the rights of a holder of a secured claim if the security consists of a lien on the debtor’s principal residence; • Section 1322(b)(2) permits modification of the rights of an unsecured claimholder; • Whether a lien claimant is the holder of a “secured claim” or an “unsecured claim” depends, thanks to § 506(a), on whether the claimant’s security interest has any actual “value” ... • If a claimant’s lien on the debtor’s homestead has no value at all ... the claimant holds an “unsecured claim” and the claimant’s contractual rights are subject to modification by the plan. 280 F.3d at 669. This argument is appealing in its simplicity and reliance on the plain text of the statute. Without a secured" }, { "docid": "8467086", "title": "", "text": "that the value of the collateral underlying a lien is irrelevant to whether that lien is modifiable by a Chap ter 13 plan. Under this view, as long as the collateral underlying a lien is the debt- or’s principal residential property, the lien cannot be voided under Section 1322(b)(2) because to do so would modify the “rights of holders of ... a claim secured only by a security interest in ... the debtor’s principal residence,” 11 U.S.C. § 1322(b)(2). Upon a review of the relevant statutory language, as well as the Supreme Court’s decision in Nobelman, we agree with the majority view on this issue and therefore adopt it here. In Nobelman, the Supreme Court began its analysis by noting that it is “correct [to] look[ ] to § 506(a) for a judicial valuation of the collateral to determine the status of [a creditor]’s secured claim.” Nobelman, 508 U.S. at 328, 113 S.Ct. 2106. The Court then noted that the creditor in that case was a “ ‘holder’ of a ‘secured claim,’ because [the debtors’] home retained] $23,500 of value as collateral.” Id. at 329, 113 S.Ct. 2106 (emphasis added). We conclude from this language, as well as the language of the statute, that the antimodification exception of Section 1322(b)(2) protects a creditor’s rights in a mortgage lien only where the debtor’s residence retains enough value— after accounting for other encumbrances that have priority over the lien — so that the lien is at least partially secured under Section 506(a). We therefore join the Third, Fifth, and Eleventh Circuits, as well as the Bankruptcy Appellate Panels of the First and Ninth Circuits, in holding that a wholly unsecured claim, as defined under Section 506(a), is not protected under the antimodification exception of Section 1322(b)(2). See McDonald, 205 F.3d at 611; Bartee v. Tara Colony Homeowners Ass’n (In re Bartee), 212 F.3d 277 (5th Cir.2000); Tanner v. FirstPlus Fin., Inc. (In re Tanner), 217 F.3d 1357 (11th Cir.2000); Domestic Bank, 249 B.R. at 838; Lam v. Investors Thrift (In re Lam), 211 B.R. 36 (9th Cir. B.A.P. 1997), appeal dismissed on" }, { "docid": "20540003", "title": "", "text": "treated as an unsecured claim component. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 239 & n. 3, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). Section 1322(b)(2) governs permissible modifications of a creditor’s rights. As relevant here, it governs the “strip off’ of a lien, which occurs when “there being no collateral value for a mortgage, the entire lien is proposed to be avoided.” In re Fisette, 455 B.R. at 179 n. 1. Section 1322(b)(2) provides that a debtor’s Chapter 13 plan may “modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence, or of holders of unsecured claims.” We are concerned with the “other than” clause of § 1322(b)(2) — the “antimodification provision” — -which protects certain claims from lien stripping. The Supreme Court addressed the interplay of these two statutes in Nobelman. The debtors there sought to strip off the unsecured portion of a creditor’s underse-cured lien — the debtors owed the creditor $71,335 on their home, which was valued at $23,500. 508 U.S. at 326, 113 S.Ct. 2106. The Court explained that the debtors “were correct in looking to § 506(a) for a judicial valuation of the collateral to determine the status of the bank’s secured claim.” Id. at 328, 113 S.Ct. 2106. Next, the Court observed that “the bank is indisputably the holder of a claim secured by a lien on [the debtors’] home,” id., “because [the debtors’] home retains $23,500 of value as collateral. The portion of the bank’s claim that exceeds $23,500 is an ‘unsecured claim componen[t]’ under § 506(a).” Id. at 329, 113 S.Ct. 2106 (second alteration in original) (quoting Ron Pair Enters., 489 U.S. at 239 n. 3, 109 S.Ct. 1026). The Court ultimately concluded that the debtors could not strip off the unsecured portion of the bank’s undersecured lien: [T]o give effect to § 506(a)’s valuation and bifurcation of secured claims through a Chapter 13 plan in the manner [the debtors] propose would require a modification of the rights of the holder" }, { "docid": "23183041", "title": "", "text": "McCarron), 242 B.R. 479, 482 (Bankr.W.D.Mo.2000), with a slight majority willing to distinguish Nobelman and hold that the antimodification clause in § 1322(b)(2) does not apply to mortgagees with totally unsecured claims. The majority decisions note that the Nobelman Court first looked to § 506(a) to determine whether any part of the creditor’s claim was secured. They remind us that the Supreme Court rejected the creditor’s argument that § 506(a) was irrelevant, and that the Court took special note of the fact that the creditor was “still the ‘holder’ of a ‘secured claim,’ because [debtors’] home retained] $ 23,500 of value as collateral.” Nobelman, 508 U.S. at 329, 113 S.Ct. 2106 (emphasis supplied). Therefore, the majority draws a distinction — believed drawn by Nobelman itself — between mortgages which are un-dersecured and those wholly unsecured. They maintain that the former were intended to be protected by the antimodifi-cation provisions of § 1322(b)(2), while the latter were not. See, e.g., Western Interstate Bancorp v. Edwards (In re Edwards), 245 B.R. 917, 921 (Bankr.S.D.Ga.2000) (wholly unsecured liens do not qualify for § 1322(b)(2) protection from modification); In re McCarron, 242 B.R. at 483 (a second mortgagee’s claim that is completely unsecured does not come within the “other than” provision of § 1322(b)(2) that was at issue in Nobelman); Lam v. Investors Thrift (In re Lam), 211 B.R. 36, 41 (9th Cir. BAP 1997), appeal dismissed, 192 F.3d 1309 (9th Cir.1999) (“The Nobelman decision holding that section 1322(b)(2) bars a chapter 13 plan from modifying the rights of holders of claims, secured only by the debtor’s principal residence, does not apply to holders of totally unsecured claims.”); Scheuer v. Marine Midland Bank (In re Scheuer), 213 B.R. 415, 418 (Bankr.N.D.N.Y.1997) (a creditor’s claim that is secured only by the debtor’s principal residence is not entitled to the protection of § 1322(b)(2) if the claim is determined to be totally unse cured); In re Geyer, 203 B.R. 726, 729 (Bankr.S.D.Cal.1996) (where the creditor’s interest in property is zero, its claim is completely unsecured under § 506(a) and is not entitled to the protection of" }, { "docid": "17543314", "title": "", "text": "parts, pursuant to § 506(a)(1): a secured claim for $23,500.00 and an unsecured claim for the remaining amount on the note. Id. In other words, the debtors proposed to “strip-down” the bank’s undersecured claim to the fair market value of the home — $23,500. Id. Accordingly, the No-belmans proposed to only pay the bank $23,500 and remove the residual, unsecured portion of the lien. Id. After reviewing the statutory language and applicable case law, the Court held that a Chapter 13 debtor cannot strip-down a partially unsecured residential mortgage lien secured by the debtor’s principal residence. Id. at 332, 113 S.Ct. 2106. The Supreme Court confirmed that the appropriate starting point to determine whether a lien strip-down or strip-off is appropriate is through application of § 506(a)(1). Id. at 328,113 S.Ct. 2106 (finding specifically that “[petitioners were correct in looking to § 506(a) for a judicial valuation of the collateral to determine the status of the bank’s secured claim.”) (internal citations omitted). The Supreme Court read the language “a claim secured only by a security interest in real property” to refer “to the lienholder’s entire claim, including both the secured and unsecured components of the claim.” Id. at 331, 113 S.Ct. 2106 (interpreting § 1322(b)(2) to prohibit a residential mortgage lien from being stripped down to the value of the collateral). The Court held that as long as there is some value in the collateral to which the lien could attach, the entire lien was protected under § 1322(b) (2). In 1997, the Ninth Circuit Bankruptcy Appellate Panel addressed a corollary question not at issue in Nobelman: whether the holder of a mortgage against a Chapter 13 debtor’s residence which is wholly unsecured is entitled to the protections of the antimodification provisions of § 1322(b)(2), or whether the rights of such a mortgage holder can be modified by treating the claim as an unsecured claim in the debtor’s plan. In re Lam, 211 B.R. 36, 40 (9th Cir. BAP 1997). In Lam, the undisputed value of the Chapter 13 debtors’ primary residence was $300,000.00. Id. at 38. The residence was" }, { "docid": "23183040", "title": "", "text": "allowed secured claim, after application of § 506(a), rather than to the entire lien claim. The Nobelman Court rejected this argument. The Court adopted what was then the minority view that § 1322(b)(2) should be construed to prohibit a Chapter 13 debtor from stripping down an underse-cured claim secured only by the debtor’s principal residence. The Supreme Court held that the creditor’s rights, enforceable under state law and “bargained for by the mortgagor and the mortgagee,” were those which Congress chose to protect in § 1322(b)(2). Id. at 329-330, 113 S.Ct. 2106 (citing to Dewsnup v. Timm, 502 U.S. 410, 417, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992)). Nobelman did not end the controversial relationship between § 506(a) and § 1322(b)(2). Does Nobelman preclude a Chapter 13 debtor from stripping off a mortgage on a principal residence where there is no collateral value whatsoever for that mortgage? That question has again led to a split in the bankruptcy and district courts. At this time, they appear almost evenly divided, McCarron v. FirstPlus Fin. (In re McCarron), 242 B.R. 479, 482 (Bankr.W.D.Mo.2000), with a slight majority willing to distinguish Nobelman and hold that the antimodification clause in § 1322(b)(2) does not apply to mortgagees with totally unsecured claims. The majority decisions note that the Nobelman Court first looked to § 506(a) to determine whether any part of the creditor’s claim was secured. They remind us that the Supreme Court rejected the creditor’s argument that § 506(a) was irrelevant, and that the Court took special note of the fact that the creditor was “still the ‘holder’ of a ‘secured claim,’ because [debtors’] home retained] $ 23,500 of value as collateral.” Nobelman, 508 U.S. at 329, 113 S.Ct. 2106 (emphasis supplied). Therefore, the majority draws a distinction — believed drawn by Nobelman itself — between mortgages which are un-dersecured and those wholly unsecured. They maintain that the former were intended to be protected by the antimodifi-cation provisions of § 1322(b)(2), while the latter were not. See, e.g., Western Interstate Bancorp v. Edwards (In re Edwards), 245 B.R. 917, 921 (Bankr.S.D.Ga.2000) (wholly unsecured liens" } ]

[ { "docid": "18556495", "title": "", "text": "The debtor has also stated that it intends to appeal the judgment obtained by Green, and the appeal is presently pending in the state courts. The filing of the reorganization petition does not affect the state court’s ability to hear the appeal, and, in fact, facilitates the state court’s jurisdiction rather than defeats it. The debtor alleges that it has been forced into bankruptcy in order to avoid the forced sale and liquidation of its business to satisfy the libel judgment obtained by Green. It admits that it was not able to obtain a supersedeas bond to forestall execution because of the amount of the judgment in relation to the Telegraph’s net worth. The judgment is presently on appeal in the Illinois state courts, and the debtor has expressed a willingness to pursue its appeal as far as necessary to secure a reversal of Green’s judgment. If the judgment obtained by Green falls on appeal, the other libel cases may be rendered moot. In light of these facts, it becomes clear that the debtor was forced into filing a Chapter 11 bankruptcy petition in order to preserve its status as an ongoing concern and protect its employees and its creditors while the claims against it are litigated. In light of the emergency nature of this filing, and the progression of this case leading up to an orderly and equitable distribution of its assets, it is clear that the filing of the Chapter 11 petition by the Telegraph is in good faith. WHEREFORE, IT IS ORDERED that the motion to dismiss be, and the same hereby is, denied." } ]

[ { "docid": "7308426", "title": "", "text": "the standby letters of credit and the attorneys for certain judgment creditors that payment on any bonds or letters of credit would violate that stay and be actionable. At or about that same time, St. Paul presented Continental Bank with letters of credit aggregating approximately $21.3 million, including letters of credit backing bonds where the underlying appeals were not final, had been reversed in Keene’s favor, or had been satisfied by Keene. Further, attorneys for some of the final judgment creditors whose judgments had been stayed, first by the posting of the escrows and then by the July 1, 1993 injunction, demanded payment from the escrow agent. Against this background, Keene filed its Chapter 11 petition on December 3, 1993. DISCUSSION A. The Automatic Stay The filing of Keene’s Chapter 11 petition triggers the automatic stay. 11 U.S.C. § 362. The automatic stay provides broad protection to Keene, preventing the commencement or continuation of litigation against Keene on account of pre-petition claims, 11 U.S.C. § 362(a)(1), preventing the enforcement of judgments based on pre-petition claims against the debtor or property of the estate, 11 U.S.C. § 362(a)(2), and preventing any act to obtain possession or control of property of the estate. 11 U.S.C. § 362(a)(3). The automatic stay insulates the debtor and its property, and provides Keene with much of the immediate protection that it seeks from on-going asbestos-related litigation. For example, none of the judgment creditors can enforce their judgments against Keene’s property. Further, those banks that have issued letters of credit to back the appeal bonds cannot enforce their rights against the Keene collateral that secures Keene’s reimbursement obligation. In re M.J. Sales & Distributing Co., 26 B.R. 608, 615 (Bankr.S.D.N.Y.1982). In addition, the automatic stay prevents the adverse, non-final judgments from becoming final, thereby triggering the judgment creditor’s right to payment from the surety or the escrow agent. Whether an action is “against the debtor” is determined by examining the proceeding at the time that it is initiated, and not by who has appealed; if the action was commenced against the debtor, the appeal is stayed even" }, { "docid": "5482510", "title": "", "text": "a “bona fide dispute” within the meaning of Code § 303. Id. (citations omitted) (footnote omitted). The court further stated in a footnote that if the judgment had been stayed, the claimant would appear to be precluded from joining the involuntary petition or taking any other action to attempt collection on the judgment. Id. at 967 n. 11. Similarly, in the case of In re Raymark Industries, Inc., 99 B.R. 298, 300 (Bankr.E.D.Pa.1989), an involuntary bankruptcy petition was filed by four creditors who held judgments against debtor which arose out of asbestos-related personal injury litigation. The court first noted that some creditors possessed a stayed judgment. Accordingly, such claims were subject to a bona fide dispute and lacked standing to institute an involuntary petition. In contrast, those creditors which held unstayed judgments against the debtor had standing to file an involuntary petition. Norris relied solely upon the case of In re Prisuta, 121 B.R. 474 (Bankr.W.D.Pa.1990). In this ease, the Prisutas guaranteed payments owed by Shanker Mechanical Corporation to the petitioning creditors. Mr. Prisuta was a principal and president of Shanker. Shanker filed a voluntary petition under Chapter 11 on August 11, 1989. In state court, judgment was confessed in favor of Bank One against the Prisutas on August 17, 1989. On April 6, 1990, a default judgment was entered in federal court against the Pri-sutas in favor of Century Surety Company and Alliance Indemnity Insurance Company. Another claim by National American Insurance Company had not been reduced to judgment. Since these judgments all remained unsatisfied, an involuntary petition was filed on August 8, 1990. The court in Prisuta followed the objective test for determining whether a bona fide dispute existed. Id. at 475 (citing B.D.W. Assocs. v. Busy Beaver Building Centers, 865 F.2d 65, 66 (3d Cir.1989)). The court also recognized the leading case of In re Drexler and noted: Relatively few cases have dealt with whether a claim which arises out of a judgment is subject to a bona fide dispute. The few cases which have considered the matter have relied upon the general principal that such claims" }, { "docid": "143205", "title": "", "text": "1085, 1089 (5th Cir.1972). See also Fed.R.Civ.Pro. 62(a); Bankruptcy Rule 7062; and N.Y.C.P.L.R. § 5519. The filing of an involuntary petition is but one of many means by which a judgment creditor may seek to attempt collection of something upon its judgment. It would be contrary to the basic principles respecting, and would effect a radical alteration of, the long-standing enforceability of unstayed final judgments to hold that the pendency of the debtor’s appeal created a “bona fide dispute” within the meaning of Code § 303. As the Fifth Circuit Court of Appeals has stated: “The judgment by which a court ends a cause does not hang in limbo pending appeal * * * ” United States v. Verlinksy, supra at 1089. Whether ultimate reversal of the petitioners’ judgment should have any effect on the bankruptcy case is something that would have to be treated on a case by case basis. See, generally, D.M. Gordon, Effect of Reversal of Judgment on Acts Done Between Pronouncement and Reversal, Parts I and II, 74 The Law Quarterly Review 517 (Oct.1958) and Part III, 75 The Law Quarterly Review 85 (Jan.1959). See also Bankruptcy Code § 305. Consideration of the debtor’s subjective good faith relative to the appeal simply is beside the point. However, this straight-forward general rule must still be applied to the facts of this case. The Money Judgment appeared, at the time of the filing of the involuntary petition, to be a partial final judgment, which is permitted by Fed.R.Civ. Pro. 54(b). It had never been stayed by the posting of a bond or otherwise, an appeal was pending from it and an execution had been returned unsatisfied. Unfortunately, an additional complexity was created when on November 6, 1984, the Second Circuit held that the Money Judgment was improperly certified and was not final. In determining matters respecting the claims of the petitioners the court generally is to look at matters as they stood on the date the petition was filed. See, e.g., In re Johnston Hawks, Ltd., 49 B.R. 823, 832 (Bankr.D.Ha.1985); 2 Collier on Bankruptcy (15th Ed.1985), H303.08[l]." }, { "docid": "143228", "title": "", "text": "creditor at the time the event giving rise to the claim accrued.\" 5 B.R. at 133. Using this definition, it is apparent that once a judicial finding of liability occurs and a judgment is entered, as had occurred here, the issue of contingency is foreclosed without regard to whether the claim was contingent prejudgment. It is therefore unnecessary for this court to determine whether petitioners’ claims were contingent prior to judgment as they are not contingent now. The necessity for a definition of the term \"contingent” prior to the BAFJA amendment to Code § 303 arose out of attempts to limit the standing to file an involuntary petition of a creditor whose claim was disputed by the debt- or by defining the claim as contingent. Judge Potter opined in All Media “[T]he court believes that it is better to determine whether the holder of the claim has shown that liability on the debt existed * * *. If there is a bona fide dispute of either fact or law then the holder would not be disqualified from being a petitioning creditor since he would be a holder of a disputed claim, but not one that is contingent as to liability within the definition fashioned above.” 5 B.R. at 135. See and compare In re Covey, 650 F.2d 877 (7th Cir.1981). . The term \"final judgment” is used here in a generic sense. As is evident from the subsequent discussion, a determination of whether any particular decree should be treated as a \"final judgment” requires careful analysis of factual and legal concerns. . If the judgment has been stayed, the claimant would appear to be precluded from joining in the involuntary petition, just as the claimant would be precluded from taking any other action to attempt collection on the judgment. But see In re Henry, 13 B.C.D. 388 (Bankr.S.D.Ohio 1985). . Drexler’s argument also has a paradoxical quality. The filing of a petition by a debtor automatically stays pending actions by virtue of Code § 362. A debtor unable to afford an appeal bond may file a Chapter 11 petition in" }, { "docid": "18578284", "title": "", "text": "11 debtor intended to prosecute its appeal notwithstanding its bankruptcy court protection, and (b) filed the petition “in order to preserve its status as an ongoing concern and protect its employees and its creditors while the claims against it are litigated.” The latter statement is actually one of result rather than motive, and the former reasoning simply ignores that the predominant creditor’s state-law right to financial protection during the pending appeal had been effectively destroyed by the use of Chapter 11. In our judgment, the Alton Telegraph reasoning is spongy at best, demonstrates a blithe disregard for the state judicial process, and is to be avoided. Far preferable is the rule of such cases as In re Wally Findlay Galleries, Inc., a 1984 New York decision in which Bankruptcy Judge Ryan wrote, much to our editorial envy, that: It is clear that the debtor did not file its petition to reorganize, but rather as a litigating tactic in its dispute with (the judgment creditor). Neither the debtor (corporation nor its principal) has sufficient assets to post a bond in order to stay these judgments pending appeal. The debtor filed its petition herein to avoid the consequences of adverse state court decisions while it continues litigating. This court should not, and will not, act as a substitute for a supersedeas bond of state court proceedings. To the same effect is In re Little Creek Development Co., 54 B.R. 510 (Bkrtcy.N.D.Tex.1985), where the Section 362 automatic stay was lifted “for cause” where the debt- or had invoked Chapter 11 rather than post an appeal bond. The bankruptcy court commented that “It is an impermissible and unjustifiable imposition on already strained judicial time and resources to use the automatic stay as a replacement for an injunction conditioned upon a bond which the Debtor could not or would not provide.”. The court concluded, without a full hearing on the good-faith issue, that the petitioner “simply wanted to transfer the litigation from state court to bankruptcy court where it could have an automatic injunction and escape the state court’s bond requirement.” On appeal, the Fifth" }, { "docid": "15736470", "title": "", "text": "preserve its status as an ongoing concern and protect its employees and its creditors while the claims against it are litigated”, and that the filing was in good faith. Id. at 241. The court in In re Sparklet Devices, Inc., 154 B.R. 544 (Bankr.E.D.Mo. 1993), concluded that “in those cases in which a court has permitted a Chapter 11 filing as a functional equivalent of a super-sedeas bond, one of two standards was met: (1) a multinational company faced mass tort litigation; or (2) a large judgment would force the debtor to close its business and liquidate. In both lines of cases, however, the crucial element to the finding of good faith has been the fact that the Debtor was an on-going concern with employees and the means to reorganize.” Id at 548-49. In that case, the court dismissed the petition, finding that the filing was merely to delay the “legitimate efforts” of the estate’s largest creditor. 4. Debtor Has Not Exhausted its State Remedies in Attempting to Appeal Without Posting a Bond; Availability of Alternatives to Bankruptcy Filing Several courts have been influenced by the possibility that the debtor might be able to appeal without posting a bond or with a limited bond. In re Harvey, 101 B.R. 250 (Bankr.D.Nev.1989), was a case in which no “badges or indicia of bad faith” were present, but where the court nonetheless dismissed on the ground that the individual debtors had failed to apply to the state court for the right to file an appeal bond “commensurate with their financial ability”, as was apparently possible under applicable State law. Id. at 252. See also In re Byrd, 172 B.R. 970 (Bankr. W.D.Wash.1994), involving a Federal judgment, where the court said, “Unless the debtor can demonstrate that he has no alternative to stay the Committee’s judgment other than by Chapter 11, his petition must be dismissed.” 172 B.R. at 972. 5. Expenses of the Appeal In re Boynton, supra, 184 B.R. at 583, involved a tax liability and individual debtors not engaged in business whose principal asset was a large investment portfolio. The" }, { "docid": "18578285", "title": "", "text": "post a bond in order to stay these judgments pending appeal. The debtor filed its petition herein to avoid the consequences of adverse state court decisions while it continues litigating. This court should not, and will not, act as a substitute for a supersedeas bond of state court proceedings. To the same effect is In re Little Creek Development Co., 54 B.R. 510 (Bkrtcy.N.D.Tex.1985), where the Section 362 automatic stay was lifted “for cause” where the debt- or had invoked Chapter 11 rather than post an appeal bond. The bankruptcy court commented that “It is an impermissible and unjustifiable imposition on already strained judicial time and resources to use the automatic stay as a replacement for an injunction conditioned upon a bond which the Debtor could not or would not provide.”. The court concluded, without a full hearing on the good-faith issue, that the petitioner “simply wanted to transfer the litigation from state court to bankruptcy court where it could have an automatic injunction and escape the state court’s bond requirement.” On appeal, the Fifth Circuit remanded for a full hearing but gave the bankruptcy court strong clues that it would affirm a finding of bad faith. Generally speaking, the supersedeas bond is a recognition of the probability of affirmance on appeal of lower court judgments, and acts as a disincentive to abuse of the legal process through frivolous or capricious appeals. The bond protects judgment creditors by providing “a means of compensating an appellee upon an af-firmance for the damages suffered between the entry of judgment and its affirmance which ... would not have been suffered but for the appeal.” State law requirements of superse-deas bonds are not to be lightly ignored. The right to appeal is not an absolute one, having neither common law nor federal constitutional basis, but is a creation of statute, and its exercise should be strictly in accordance with the controlling state law. Due regard for principles of federalism requires no less than our unrelenting respect for the controlling state law on supersedeas bonds as expressed in Kentucky Rule of Civil Procedure 73.04. To" }, { "docid": "5482509", "title": "", "text": "required. Consequently, the petitioning creditors moved for summary judgment. The court granted such motion and concluded that a claim based on an unstayed judgment as to which an appeal had been taken was not the subject of a bona fide dispute under 11 U.S.C. § 303(b). Id. at 967. The court in Drexler asserted that: [t]he general answer may be given that a claim based upon an unstayed judgment as to which an appeal has been taken by the debtor is not the subject of a bona fide dispute. Once entered, an unstayed final judgment may be enforced in accordance with its terms and with applicable law or rules, even though an appeal is pend-ing_ The filing of an involuntary petition is but one of many items by which a judgment creditor may seek to attempt collection of something upon its judgment. It would be contrary to the basic principal respecting, and would effect a radical alteration of, the long-standing enforceability of an unstayed final judgment to hold the pendency of the debtor’s appeal created a “bona fide dispute” within the meaning of Code § 303. Id. (citations omitted) (footnote omitted). The court further stated in a footnote that if the judgment had been stayed, the claimant would appear to be precluded from joining the involuntary petition or taking any other action to attempt collection on the judgment. Id. at 967 n. 11. Similarly, in the case of In re Raymark Industries, Inc., 99 B.R. 298, 300 (Bankr.E.D.Pa.1989), an involuntary bankruptcy petition was filed by four creditors who held judgments against debtor which arose out of asbestos-related personal injury litigation. The court first noted that some creditors possessed a stayed judgment. Accordingly, such claims were subject to a bona fide dispute and lacked standing to institute an involuntary petition. In contrast, those creditors which held unstayed judgments against the debtor had standing to file an involuntary petition. Norris relied solely upon the case of In re Prisuta, 121 B.R. 474 (Bankr.W.D.Pa.1990). In this ease, the Prisutas guaranteed payments owed by Shanker Mechanical Corporation to the petitioning creditors. Mr. Prisuta was" }, { "docid": "15736469", "title": "", "text": "after considering the purpose and goals of Chapter 11, found that “Prior to the filing, the debtor had an ongoing business with several employees and several creditors other than the mov-ants. The debtor’s continued viability has been threatened by the claim successfully asserted in state court ... In these circumstances, and on this record, there is no basis to conclude that the case was filed ‘with demonstrable frivolous purposes absent any economic reality,’ or that ‘reorganization process is being perverted in this case.’ ” 72 B.R. at 908 (citations omitted). In an early case, In re Alton Telegraph Printing Co., 14 B.R. 238 (Bankr.S.D.Ill. 1981), the court found that the debtor had published a newspaper for more than 100 years, employed a substantial number of people, and was a “viable business,” but was in need of financial rehabilitation in light of the enormous judgment that had been obtained by one plaintiff and the pendency of other libel cases against it. It concluded that the debtor was “forced into filing a bankruptcy petition in order to preserve its status as an ongoing concern and protect its employees and its creditors while the claims against it are litigated”, and that the filing was in good faith. Id. at 241. The court in In re Sparklet Devices, Inc., 154 B.R. 544 (Bankr.E.D.Mo. 1993), concluded that “in those cases in which a court has permitted a Chapter 11 filing as a functional equivalent of a super-sedeas bond, one of two standards was met: (1) a multinational company faced mass tort litigation; or (2) a large judgment would force the debtor to close its business and liquidate. In both lines of cases, however, the crucial element to the finding of good faith has been the fact that the Debtor was an on-going concern with employees and the means to reorganize.” Id at 548-49. In that case, the court dismissed the petition, finding that the filing was merely to delay the “legitimate efforts” of the estate’s largest creditor. 4. Debtor Has Not Exhausted its State Remedies in Attempting to Appeal Without Posting a Bond; Availability of" }, { "docid": "19302120", "title": "", "text": "25, 2011. MARKELL, Bankruptcy Judge, dissenting. I respectfully dissent. I believe the majority incorrectly applies or adopts the law on at least two points. Initially, I think it is incorrect and bad policy to adopt a “per se” rule regarding undisputed claims. Next, I believe the majority opinion improperly and incorrectly limits good faith principles with respect to the commencement and conduct of involuntary cases. Adoption of the “Per Se” Rule as to Disputed Claims The majority adopts a per se rule that an unstayed state court judgment conclusively determines that there is no bona fide dispute as to the debtor’s liability for the debt underlying the judgment, even if the debtor has taken an appeal from that judgment and that appeal is pending. Given the distinctly federal policies embodied in Section 303, and especially under the facts present here, I disagree that Section 303 requires, and Congress intended, such an inflexible rule. The first court to adopt the per se rule was In re Drexler, 56 B.R. 960 (Bankr.S.D.N.Y.1986). Drexler held that a claim represented by an unstayed final judgment never can be the subject of a bona fide dispute, even if subject to a pending appeal. Id. at 967. Drexler reasoned that precluding judgment creditors from filing involuntary petitions merely based on the pendency of an appeal would render involuntary petitions out of step with other debt collection remedies, because these other remedies may be utilized by holders of unstayed final judgments, even while their judgments are subject to appeals. Id. In Drexler’s own words: It would be contrary to the basic principles respecting, and would effect a radical alteration of, the long-standing enforceability of unstayed final judgments to hold that the pendency of the debtor’s appeal created a “bona fide dispute” within the meaning of Code § 303. Id. (footnote omitted). While several other courts have adopted Drexler’s per se rule, the Fourth Circuit Court of Appeals rejected it as unpersuasive. Platinum Fin. Serv. Corp. v. Byrd (In re Byrd), 357 F.3d 433, 438 (4th Cir.2004). Other courts are in accord. See e.g., In re Starlite Houseboats," }, { "docid": "143230", "title": "", "text": "order to be able to continue in operation pending the determination of the appeal. See, e.g., In re Alton Telegraph Printing Co., 14 B.R. 238, 8 B.C.D. 457 (Bankr.S.D.Ill.1981) (Court denied motion by a judgment creditor seeking to dismiss Chapter 11 petition as filed in bad faith because debtor unable to obtain supersedeas bond to forestall execution filed in order to continue operations during pendency of appeal from a $9.2 million libel judgment. Court found debtor free to file to preserve its status as an ongoing concern and protect its employees and creditors while the claims against it were litigated.) Here Drexler is asserting the converse — that creditors have no right to institute a bankruptcy case even when there is no superse-deas bond and execution on the judgment has been unsuccessful. . The final judgment rule utilized obviates the need for any consideration of subjective good faith in this case. Exploration of the importance of a debtor’s subjective intent to determination of the issues presented by an involuntary petition remains for another case on different facts. . As indicated at footnote 2, a dispute existed at one time as to whether the appeals were still pending at the time the involuntary petition was filed. Drexler has devoted pages to allegations that the petitioners, their counsel, the Trustee and his counsel, and the attorneys for English and Bellefonte engaged in a conspiracy after July 15, 1983, when the orders for relief were granted as to the Original Corporate Debtors, to ensure that the appeals taken from the Money and Sanctions Judgments would be dismissed by the Second Circuit for lack of prosecution. The supposed purpose of the conspiracy was to enable the petitioners to file the involuntary petition against Drexler individually after the appeal had been dismissed. Drexler asserts that the Second Circuit’s decision in In re B.D. International Discount Corp., supra, would have precluded the filing of the petition while the appeal was pending. Although this court does not agree with Drexler’s reading of the B.D. International decision and would reach the same outcome relative to the effect of" }, { "docid": "9326794", "title": "", "text": "the filing of the bankruptcy enabled the Debtors to obtain a stay of a foreclosure order which was twice denied by the District Court, all the while obviating the need for the posting of a supersedeas bond. The Court therefore dismissed the bankruptcy as having been filed in bad faith. See also In re Karum Group, Inc., supra and In re Smith, supra, wherein both courts dismissed petitions which were found to be tactical attempts to stay the ramifications of non-bankruptcy litigation without the requirement of posting a supersedeas bond. In those cases wherein dismissal for bad faith was denied, the primary consideration was whether the judgment creditors claim was so large as to single-handedly vitiate the debtor’s existence, In re Alton Telegraph Printing Company, 14 B.R. 238 (Bankr.S.D.Ill.1981) ($9.2 million libel judgment); in some cases the financial devastation and resultant liquidations would have had severe repercussions on public policy. In re A.H. Robins, Inc., 65 B.R. 160, 164 n. 5 (E.D.Va.1986) (300,000 Daikon Shield claimants); In re Johns-Manville Corporation, 36 B.R. 727 (Bankr.S.D.N.Y.1984) (necessary to reserve $1.9 billion for contingent liability on asbestosis claims). The case at bar is clearly more analogous to the former group of cases than the latter. The two parties to this action have been embroiled in intense litigation for almost five (5) years. After substantial delay in discovery, apparently caused in part by Debtor’s distaste for cooperation, a jury trial was held. The verdict of the jury was fully in favor of Gusdonevich. Debtor appealed the verdict, but did not seek a stay pending appeal — not until Gusdonevich proceeded to execute upon his judgment. At a hearing on said motion for stay, Debtor advised the District Court that it was financially solvent enough to pay the judgment as well as interest and fees immediately if necessary, but was concerned about recouping same from Gusdonevich if Debtor succeeded on appeal. Yet, before that Court could rule, Debtor filed its Petition in Bankruptcy. Thereafter, the Court entered a Memorandum Opinion and Order, unequivocally denying the stay pending appeal, stating that the Movants “... failed to" }, { "docid": "143229", "title": "", "text": "disqualified from being a petitioning creditor since he would be a holder of a disputed claim, but not one that is contingent as to liability within the definition fashioned above.” 5 B.R. at 135. See and compare In re Covey, 650 F.2d 877 (7th Cir.1981). . The term \"final judgment” is used here in a generic sense. As is evident from the subsequent discussion, a determination of whether any particular decree should be treated as a \"final judgment” requires careful analysis of factual and legal concerns. . If the judgment has been stayed, the claimant would appear to be precluded from joining in the involuntary petition, just as the claimant would be precluded from taking any other action to attempt collection on the judgment. But see In re Henry, 13 B.C.D. 388 (Bankr.S.D.Ohio 1985). . Drexler’s argument also has a paradoxical quality. The filing of a petition by a debtor automatically stays pending actions by virtue of Code § 362. A debtor unable to afford an appeal bond may file a Chapter 11 petition in order to be able to continue in operation pending the determination of the appeal. See, e.g., In re Alton Telegraph Printing Co., 14 B.R. 238, 8 B.C.D. 457 (Bankr.S.D.Ill.1981) (Court denied motion by a judgment creditor seeking to dismiss Chapter 11 petition as filed in bad faith because debtor unable to obtain supersedeas bond to forestall execution filed in order to continue operations during pendency of appeal from a $9.2 million libel judgment. Court found debtor free to file to preserve its status as an ongoing concern and protect its employees and creditors while the claims against it were litigated.) Here Drexler is asserting the converse — that creditors have no right to institute a bankruptcy case even when there is no superse-deas bond and execution on the judgment has been unsuccessful. . The final judgment rule utilized obviates the need for any consideration of subjective good faith in this case. Exploration of the importance of a debtor’s subjective intent to determination of the issues presented by an involuntary petition remains for another case on" }, { "docid": "8162791", "title": "", "text": "limitations to deter filings that seek to achieve objectives outside the legitimate scope of the bankruptcy laws. See Furness v. Lilienfield, 35 B.R. 1006, 1011 (D.Md.1983); Lawrence Ponoroff & F. Stephen Knippenberg, The Implied Good Faith Filing Requirement: Sentinel of an Evolving Bankruptcy Policy, 85 Nw.U.L.Rev. 919, 946-47 (1991). Pursuant to 11 U.S.C. § 1112(b), courts have dismissed cases filed for a variety of tactical reasons unrelated to reorganization. While the case law refers to these dismissals as dismissals for “bad faith” filing, it is probably more accurate in light of the precise language of section 1112(b) to call them dismissals “for cause.” One limitation some courts have implied under section 1112(b) involves Chapter 11 eases filed to stay a state court judgment against the debtor pending appeal. In those cases, courts have expressed concern that the petition is merely a “litigating tactic” designed to “act as a substitute for a superse-deas bond” required under state law to stay the judgment. In re Wally Findlay Galleries (New York), Inc., 36 B.R. 849, 851 (Bankr.S.D.N.Y.1984). Several bankruptcy courts have held that a debtor may use a Chapter 11 petition to avoid posting an appeal bond if satisfaction of the judgment would severely disrupt the debtor’s business. A petition filed for this purpose doesn’t comport with the objectives of the bankruptcy laws, however, if the debt- or can satisfy the judgment with nonbusiness assets. See, e.g., In re Sparklet Devices, Inc., 154 B.R. 544, 548-49 (Bankr.E.D.Mo.1993); In re Harvey, 101 B.R. 250, 252 (Bankr.D.Nev.1989); In re Holm, 75 B.R. 86, 87 (Bankr.N.D.Cal.1987). We need not decide whether bankruptcy laws can be used to skirt state court procedural rules in this manner. The bankruptcy court found that the debtor’s Chapter 11 petition was filed solely to delay collection of the restitution judgment and to avoid posting an appeal bond. Even assuming a Chapter 11 petition may be used for this purpose when enforcement of a judgment would cause severe business disruption, a question we leave open, this would not help the debtor here. The bankruptcy court found that the debtor had the financial" }, { "docid": "18578283", "title": "", "text": "bank, preserving actual and undiscovered product liability claims until they can be found, asserted and resolved through either the courts or other institutions of government. Cases of lesser magnitude may be found which endorse the use of Chapter 11 to circumvent state law requirements of appeal bonds, the most frequently cited of which is In re Alton Telegraph Printing Co., 14 B.R. 238 (Bkrtcy.S.D.Ill.1981). That case involved an Illinois newspaper unable to post a bond to protect it against a $9 million libel judgment. In permitting the Chapter 11 proceeding to go forward, the bankruptcy court commented with an apparently straight face that the petitioner was in good faith because it “has filed a plan of reorganization ... has attended all of the meetings and hearings, and has generally been cooperative with the Court.” No less should be demonstrated by each and every petitioner, we submit, although we are constrained to observe that even mewling compliance may be used to conceal other, less admirable, motives. The Alton Telegraph court further rationalized that (a) the Chapter 11 debtor intended to prosecute its appeal notwithstanding its bankruptcy court protection, and (b) filed the petition “in order to preserve its status as an ongoing concern and protect its employees and its creditors while the claims against it are litigated.” The latter statement is actually one of result rather than motive, and the former reasoning simply ignores that the predominant creditor’s state-law right to financial protection during the pending appeal had been effectively destroyed by the use of Chapter 11. In our judgment, the Alton Telegraph reasoning is spongy at best, demonstrates a blithe disregard for the state judicial process, and is to be avoided. Far preferable is the rule of such cases as In re Wally Findlay Galleries, Inc., a 1984 New York decision in which Bankruptcy Judge Ryan wrote, much to our editorial envy, that: It is clear that the debtor did not file its petition to reorganize, but rather as a litigating tactic in its dispute with (the judgment creditor). Neither the debtor (corporation nor its principal) has sufficient assets to" }, { "docid": "19302121", "title": "", "text": "represented by an unstayed final judgment never can be the subject of a bona fide dispute, even if subject to a pending appeal. Id. at 967. Drexler reasoned that precluding judgment creditors from filing involuntary petitions merely based on the pendency of an appeal would render involuntary petitions out of step with other debt collection remedies, because these other remedies may be utilized by holders of unstayed final judgments, even while their judgments are subject to appeals. Id. In Drexler’s own words: It would be contrary to the basic principles respecting, and would effect a radical alteration of, the long-standing enforceability of unstayed final judgments to hold that the pendency of the debtor’s appeal created a “bona fide dispute” within the meaning of Code § 303. Id. (footnote omitted). While several other courts have adopted Drexler’s per se rule, the Fourth Circuit Court of Appeals rejected it as unpersuasive. Platinum Fin. Serv. Corp. v. Byrd (In re Byrd), 357 F.3d 433, 438 (4th Cir.2004). Other courts are in accord. See e.g., In re Starlite Houseboats, Inc., 426 B.R. 375 (Bankr.D.Kansas 2010); In re Henry S. Miller Commercial, LLC., 418 B.R. 912, 920-23 (Bankr.N.D.Tex.2009); see also In re Prisuta, 121 B.R. 474 (Bankr.W.D.Pa.1990). While Byrd acknowledged the general enforceability of unstayed judgments, Byrd noted that nothing in § 303, or in the Bankruptcy Code as a whole, mandated that holders of unstayed final judgments be entitled to file involuntary petitions while their judgments are subject to appeal. As stated in Byrd, “the Code does not make the existence of a bona fide dispute depend on whether a claim has been reduced to judgment.” Id. After considering the underlying purpose of the bona fide dispute clause in § 303(b), to prevent creditors from coercing debtors into settlement of legitimately disputed claims based on the threat of involuntary bankruptcy, Byrd concluded that the per se rule was inappropriate. Rather, Byrd ruled that the unstayed final judgment was prima facie evidence that no bona fide dispute existed. The presumption arose upon presentation of the judgment, and the burden then shifted to the alleged debtor" }, { "docid": "7308455", "title": "", "text": "other creditors. In re O.P.M. Leasing, 46 B.R. at 667. Further, once the Court ruled that the trust was not property of the estate, the filing of the petition could not drag it back in. The debtors’ reversionary interest had been extinguished and the final judgment creditors should have been free to pursue their judgments against non-estate property. The Alwan decision is also inconsistent with the case law already discussed. In Johns-Manville, the Court noted that the procurement of the supersedeas bond reallocated the risk of the debtor’s insolvency and bankruptcy. If inequities resulted, they flowed from the posting of the bond before the filing of the Chapter 11 petition. The Alwan court chose to ignore these temporal distinctions, finding that the purpose of the bond was to preserve the status quo, and that the debtors could have filed their petitions earlier without posting any bond and at a time when they were just as insolvent. Hence, the judgment creditors did not suffer damages as a result of the delay in executing the judgment. The final judgment creditors, however, are not required to prove delay damages to enforce their rights. That Keene could have filed a Chapter 11 at an earlier time is beside the point; it didn’t. It is equally true that Keene could have paid these judgments — or these judgment creditors could have enforced them against Keene’s assets — long before the bankruptcy was filed. Many things could have occurred to change the outcome of this proceeding, but what actually occurred must dictate the result. CONCLUSION The automatic stay prevents the continuation of asbestos-related litigation against Keene, including pending appeals by Keene, prevents Keene’s banks from seizing the collateral backing the letters of credit and prevents any judgment creditor from satisfying the judgment against property of the estate. The automatic stay does not prevent, and this Court will not stay, final judgment creditors from enforcing their judgments against the appeal bonds or escrows, or the sureties from drawing the proceeds of the letters of credit in accordance with their terms. The foregoing shall constitute the Court’s findings" }, { "docid": "5482508", "title": "", "text": "courts have found that claims based on final judgments are not subject to a “bona fide dispute.” The petitioning creditors rely on the prevalently cited ease of In re Drexler, 56 B.R. 960 (Bankr.S.D.N.Y.1986), whereby the petitioners filed an involuntary Chapter 7 petition against the debtor. Their claims arose out of two judgments from actions initiated in federal district court against the debtor. The petitioners claimed that the debtor failed to remit insurance premiums pursuant to written agreements between the parties. Several hearings were held, evidence was adduced, and the debtor admitted liability. Consequently, a “Money Judgment” was rendered against the debtor. The second and companion judgment, referred to the “Sanctions Judgment,” was granted in part by default. The debtor appealed, but never requested or obtained a stay pending appeal pursuant to Federal Rule of Bankruptcy Procedure 8005. After the involuntary case was initiated, the debtor filed an answer and numerous counterclaims contesting the petition. A trial on the involuntary petition was commenced, but was later halted when it was revealed that more discovery was required. Consequently, the petitioning creditors moved for summary judgment. The court granted such motion and concluded that a claim based on an unstayed judgment as to which an appeal had been taken was not the subject of a bona fide dispute under 11 U.S.C. § 303(b). Id. at 967. The court in Drexler asserted that: [t]he general answer may be given that a claim based upon an unstayed judgment as to which an appeal has been taken by the debtor is not the subject of a bona fide dispute. Once entered, an unstayed final judgment may be enforced in accordance with its terms and with applicable law or rules, even though an appeal is pend-ing_ The filing of an involuntary petition is but one of many items by which a judgment creditor may seek to attempt collection of something upon its judgment. It would be contrary to the basic principal respecting, and would effect a radical alteration of, the long-standing enforceability of an unstayed final judgment to hold the pendency of the debtor’s appeal created" }, { "docid": "19302131", "title": "", "text": "simply were left to the remedies afforded state-court judgment creditors. Coupled with the size of the judgment against Marciano, which effectively precluded a bond and thus a stay, the majority effectively gives the petitioning creditors more than they would have under applicable state law collection alternatives. This cannot be the proper reading of Section 303(b). The majority’s reasoning in this case is entirely derivative of Drexler and AMC Investors. For the reasons set forth above, I reject that reasoning and would reject the per se rule, in favor of the approach adopted in Byrd, which held that an unstayed judgment on appeal is prima facie evidence that the claim in question is not subject to bona fide dispute, and that presentation of the judgment shifts the burden to the alleged debtor to demonstrate that genuine issues of fact or law have been raised in the appeal. Bad Faith Filing of an Involuntary Petition The majority also refuses to recognize the fundamental rule that good faith is essential for any filing in federal court. The majority would permit a bad faith filing of an involuntary petition so long as the numerical and other mechanical requirements of Section 303(b) are met. Because of the long tradition of requiring good faith to initiate any proceeding in federal court, I also dissent on this ground. In considering whether a bankruptcy filing was appropriate, bankruptcy courts have broad discretion to examine the equity of the bankruptcy filing and to compare the motivation underlying the subject bankruptcy filing with the purposes behind the enactment of chapter 11. In re SGL Carbon Corp., 200 F.3d 154, 160 (3d Cir.1999); Marsch v. Marsch (In re Marsch), 36 F.3d 825, 828 (9th Cir.1994); In re Van Owen Car Wash, Inc., 82 B.R. 671, 673-74 (Bankr.C.D.Cal.1988). The weight of authority indicates that these considerations and principles apply to involuntary cases as well, especially in the case of collusive filings. See, e.g., In re Bicoastal Holding Co., 402 B.R. 916, 919-21 (Bankr.M.D.Fla. 2009); In re Sul, 380 B.R. 546, 555 (Bankr.C.D.Cal.2007); In re Winn, 49 B.R. 237, 239 (Bankr.M.D.Fla.1985). As Collier" }, { "docid": "9326787", "title": "", "text": "MEMORANDUM OPINION BERNARD MARKOYITZ, Bankruptcy Judge. Presently before the Court is a judgment creditor’s Motion To Dismiss Debtor’s Chapter 11 petition, alleging bad faith in the filing. Specifically, he contends that the Debtor filed its bankruptcy petition as a litigation tactic, allowing the automatic stay to operate as a stay pending appeal of a certain District Court action. Debtor asserts that the filing is in good faith and is necessary to protect against additional litigation by other possible claimants, who have not yet instituted actions, but are otherwise similarly situated to the moving creditor. The parties have submitted briefs and/or cases, and have presented oral argument. Based upon these offers and this Court’s further research, we hold that while there does exist substantial evidence to reach a conclusion of bad faith, we find the better alternative to be abstention from the exercise of our jurisdiction, and dismissal of this bankruptcy case pursuant to Section 305 of the Bankruptcy Code. We believe this result will best serve the needs of both the Debtor and the creditors. FACTS John E. Gusdonevich, Jr. (hereinafter “Gusdonevich”) filed an action against the Debtor and its individual principals alleging willful violations of the Fair Labor Standards Act (hereinafter “FLSA”), 29 U.S.C. § 207(a), regarding nonpayment of overtime. This action was filed in June of 1982; while evidence exists that as many as ten (10) other employees were and/or are similarly situated, none of them has brought a similar action. Gusdonevich demanded approximately $90,000.00, including interest and attorney’s fees. After several years of protracted litigation, a jury trial was held and a verdict returned in favor of Gusdone-vich. After numerous post-trial motions were completed, judgment was entered on August 25, 1987, against the Debtor and the individual principals, jointly and severally, in the sum of $37,590.32. The claim for attorney’s fees is still pending. Debtor appealed the judgment but did not seek a stay of same pending the appeal. On October 20, 1987, Gusdonevich attached the Debtor’s bank account. It was then that Debtor filed a Motion For Stay Of Execution pending the appeal. In said Motion" } ]

[ { "docid": "22055187", "title": "", "text": "Mr. Justice Whittaker join, dissenting. In Automobile Club of Michigan the Court pointed out that the method of accounting employed by the taxpayer was “purely artificial,” so far as the record there showed. 353 U. S., at 189. Here, by contrast, the petitioner proved, and the Court of Claims found, that the method of accounting employed by the petitioner during the years in issue was in accord with generally accepted commercial accounting principles and practice, was customarily employed by similar taxpayers, and, in the opinion of qualified experts in the accounting field, clearly reflected the petitioner’s net income. I do not understand that the Court today questions either that proof or those findings. The Court thus holds that the Commissioner is authorized to disregard and override a method of reporting income under which prepaid dues are deferred in direct relation to the taxpayer’s costs under its membership contracts. The effect of the Court’s decision is to allow the Commissioner to prevent an accrual basis taxpayer from making returns in accordance with the accepted and clearly valid accounting practice of excluding from gross income amounts received as advances until the right to such amounts is earned by rendition of the services for which the advances were made. To permit the Commissioner to do this, I think, is to ignore the clear statutory command that a taxpayer must be allowed to make his returns in accord with his regularly employed method of accounting, so long as that method clearly reflects his income. The result, I am afraid, will be to engender far-reaching confusion and injustice in the administration of the Internal Revenue Laws. I. The Commissioner’s basic argument against the deferred reporting of prepayments has traditionally been that such a method conflicts with a series of decisions of this Court which establish the so-called “claim of right doctrine.” In this case the Government abandoned that argument, with good reason. As four Circuits have correctly held, the claim of right doctrine furnishes no support for the Government’s position. Bressner Radio, Inc., v. Commissioner, 267 F. 2d 520, 524, 525-528 (C. A. 2d Cir.);" } ]

[ { "docid": "5190574", "title": "", "text": "of the so-called ‘claim of right’ doctrine to disallow deferrals of these unearned receipts. While this was true of the decision in the Tax Court * * * and apparently of the decision in the Court of Appeals * * Drennex, J., concurring: I agree that this case does not warrant modification of or deviation from the long-established rule that prepaid income is taxable in the year received provided such income is subject to unrestricted use by the taxpayer. For that reason, I do not think the discretionary action of the Commissioner in determining under section 41 of the 1939 Code that this taxpayer’s method of accounting did not clearly reflect its income “exceeded permissible limits,” as said by the Supreme Court in Automobile Club of Michigan v. Commissioner, 353 U.S. 180. However, I do not agree that the general rule can be applied by the Commissioner in all cases and under all circumstances, absent only some “special regulation or exceptional statutory provisions.” I think there might be situations where a taxpayer’s method of accounting for income received, which does not conform to the general rule, would correctly reflect his income and that it would be exceeding the limits of discretion accorded the Commissioner in section 41 to either correct items within petitioner’s system of accounting or require a different system of accounting. I agree with Judge Pierce that the rule is not inflexible, but I believe the circumstances in which it would not be applicable would have to be quite unusual. We found in Automobile Club of Michigan, 20 T.C. 1033, that the taxpayer’s method of accounting did not clearly reflect its income and accordingly that the Commissioner did not err in so determining. I see nothing in the facts in this case to justify reaching a different conclusion here. The pro rata allocation of membership dues in monthly amounts is as artificial and unrelated to the services petitioner may be called upon to render in this case at it was in that case, and I think this finding is implicit in the conclusion of the Court here. I" }, { "docid": "6883431", "title": "", "text": "a case in which the taxpayer has sought to change its method of accounting and is therefore subject to the Commissioner’s “wide discretion” to reject such a change. Cf. Brown v. Helvering, 1934, 291 U.S. 193, 204, 54 S.Ct. 356, 78 L.Ed. 725. This is rather a case in which an accrual taxpayer has from the start consistently applied the accrual method of accounting. Beacon Publishing Co. v. Commissioner, 10 Cir., 1955, 218 F.2d 697, 701-702. As an accounting matter petitioner proved that the deferral of these receipts, assuming for the moment that the basis on which the deferral was computed was satisfactory, cf. Automobile Club of Michigan v. Commissioner, 1957, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746, did clearly reflect its income. The essential argument in support of the deferral is that although the customer’s payment was received in full at the start of each year-long contract it could not be considered to be earned, until petitioner had discharged its liability to perform services under the contract. At the close of each year petitioner did take into the income of the year such portion of the total received for each contract as, in accordance with its accounting procedures, it then considered to be earned, deferring the remainder of the receipt for inclusion in the year in which its remaining liability was discharged. It is not disputed that each contract did establish a continuing liability of petitioner to perform services at the customer’s demand for one year. In United States v. Anderson, supra, the Supreme Court held that: “In a technical legal sense it may be argued that a tax does not accrue until it has been assessed and becomes due; but it is also true that in advance of the assessment of a tax, all the events may occur which fix the amount of the tax and determine the liability of the taxpayer to pay it. In this respect, for purposes of accounting and of ascertaining true income for a given accounting period, the munitions tax here in question did not stand on any different footing than" }, { "docid": "6883436", "title": "", "text": "v. Mellon, 1938, 304 U.S. 271, 58 S.Ct. 926, 82 L.Ed. 1337; Security Flour Mills Co. v. Commissioner, 1944, 321 U.S. 281, 64 S.Ct. 596, 88 L.Ed. 725; United States v. Lewis, 1950, 340 U.S. 590, 71 S.Ct. 522, 95 L.Ed. 560; Healy v. Commissioner, 1953, 345 U.S. 278, 73 S.Ct. 671, 97 L.Ed. 1007; and Automobile Club of Michigan v. Commissioner, 1957, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746. However, with the sole exception of Automobile Club of Michigan v. Commissioner, supra, not one of these cases deals on the merits with the question of the propriety of the deferral of prepaid receipts held without other restriction as to use than the liability to perform future services on demand. Therefore in order to establish his proposition the Commissioner must demonstrate that these cases nevertheless establish a standard for the definition of those methods of accounting which are acceptable under § 41 that excludes the deferral of such unearned receipts. The cases individually or the so-called “claim of right” doctrine which they may collectively embody do not establish such a •definition. To the contrary, in each of the cases cited which is relevant, the Supreme Court used as its starting point generally accepted methods of accrual accounting for earned income. In North American Oil Corp. v. Bur-net, supra, the government and the petitioner disputed the ownership of certain property, and a receiver was appointed pending a determination. In the year 1916 under the control of the receiver the property produced a profit. In 1917 the court battle was resolved in petitioner’s favor at the trial level, and the receiver consequently paid over the sums representing the profit of 1916. The oil company sought to treat this profit, which it conceded was earned income in any event, as income in the year 1916. The Commissioner asserted that the fund constituted income to the company in 1917, when it first received it under a claim of right. The company •countered with the argument that if the fund was not income to it in 1916, it could not be considered as" }, { "docid": "6883430", "title": "", "text": "books and make their returns according to scientific accounting principles, by charging against income earned during the taxable period, the expenses incurred in and properly attributable to the process of earning income during that period * * * ” (269 U.S. at page 440, 46 S.Ct. at page 134). It applied this standard to require a taxpayer on the accrual basis to accrue in advance of payment taxes imposed for the year 1916 but payable in 1917. The principle has been expressly reaffirmed as recently as Lewyt Corp. v. Commissioner, 1955, 349 U.S. 237, 242-243, 75 S.Ct. 736, 99 L.Ed. 1029. The starting point, therefore, is the standard of “scientific accounting principles” to determine whether the deferral method adopted by the taxpayer here did or did not “clearly reflect” its income. In order to prevail, petitioner need only establish that the Commissioner improperly asserts that the method it has chosen and defends did not “clearly reflect” its income. Helvering v. Taylor, 1935, 293 U.S. 507, 515, 55 S.Ct. 287, 79 L.Ed. 623. This is not a case in which the taxpayer has sought to change its method of accounting and is therefore subject to the Commissioner’s “wide discretion” to reject such a change. Cf. Brown v. Helvering, 1934, 291 U.S. 193, 204, 54 S.Ct. 356, 78 L.Ed. 725. This is rather a case in which an accrual taxpayer has from the start consistently applied the accrual method of accounting. Beacon Publishing Co. v. Commissioner, 10 Cir., 1955, 218 F.2d 697, 701-702. As an accounting matter petitioner proved that the deferral of these receipts, assuming for the moment that the basis on which the deferral was computed was satisfactory, cf. Automobile Club of Michigan v. Commissioner, 1957, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746, did clearly reflect its income. The essential argument in support of the deferral is that although the customer’s payment was received in full at the start of each year-long contract it could not be considered to be earned, until petitioner had discharged its liability to perform services under the contract. At the close of each" }, { "docid": "18312786", "title": "", "text": "not yet developed, Woodlawn Park Cemetery Co., 1951, 16 T.C. 1067. Here, however, Angelus’ obligation was to furnish funeral services at a future time. Under these circumstances, we think that the reasoning of the Supreme Court in Schlude v. Commissioner, 1963, 372 U.S. 128, 83 S. Ct. 601, 9 L.Ed.2d 633, is applicable here. See also American Automobile Ass’n v. United States, 1961, 367 U.S. 687, 81 S.Ct. 1727, 6 L.Ed.2d 1109, Automobile Club of Michigan v. Commissioner, 1957, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746. It is true that those cases involved the power of the Commissioner under 26 U.S.C. § 446(b), while that power is not in issue here. But the reasons there given in support of the exercise of that power are here persuasive. Cf. Artnell Co. v. Commissioner, 7 Cir., 1968, 400 F.2d 981. The third line of cases involves payments by a prospective buyer for an option to be applied to the price if the option be later exercised. Those cases, however, involved a different problem. If the option is allowed to lapse, the money becomes ordinary income to the optionor; if the option is exercised, the money is received as part of the price of a capital asset, taxable, if at all, as capital gain. The taxpayer (optionor-seller) cannot know which type of income he has when he receives the payments. No such uncertainty as to the character of the money received is here involved. We hold that the payments here involved were neither loans nor sufficiently analogous to loans to be non-taxable when received. Affirmed. . Parkchester Beach Club Corp. v. Commissioner, 2 Cir., 1964, 335 F.2d 478, 480; Acacia Park Cemetery Ass’n v. Commissioner, 7 Cir., 1933, 67 F.2d 700. . Commissioner v. Cedar Park Cemetery Ass’n, 7 Cir., 1950, 183 F.2d 553; Portland Cremation Ass’n v. Commissioner, 9 Cir., 1929, 31 F.2d 843; Green Lawn Memorial Park, Inc. v. McDonald, M.D. Pa., 1958, 164 F.Supp. 438, 441, affirmed 3 Cir., 1959, 262 F.2d 588; American Cemetery Co. v. United States, D.Kan., 1928, 28 F.2d 918; Troost Avenue Cemetery Co." }, { "docid": "2911175", "title": "", "text": "reported as income in their tax returns such portion of the total amount received, as under their system of accounting had been earned, deferring the remainder of the amount received for inclusion in the year or years in which the remainder of their liability was discharged. Such system seems eminently designed to reflect true income. Manifestly, Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746, the only case in which the Supreme Court considered on the merits the question of the propriety of deferring prepaid funds, is distinguishable and therefore not controlling. Although the Tax Court in that case applied the claim of right doctrine to disallow the deferral of unearned receipts, 20 T.C. 1033, affirmed sub nom. Automobile Club of Michigan v. Commissioner of Internal Revenue, 6 Cir., 230 F.2d 585, 591, this question was not reached, for the Supreme Court delineated the issues and based its decision on the narrow ground that the particular method of deferral employed by the Club was unsatisfactory. The Court found that “(t)he pro rata allocation of membership dues in monthly amounts is purely artificial and bears no relation to the services which petitioner may in fact be called upon to render for the member.” 353 U.S. at page 189, 77 S.Ct. at page 712. The Court distinguished Beacon Publishing Co. v. Commissioner of Internal Revenue, supra, and Schues-sler v. Commissioner of Internal Revenue, supra, on their facts, expressing no opinion upon the correctness of these decisions. The facts before us are distinguishable. Here, petitioners’ obligation to provide services subsequent to the tax year was fixed, definite and certain, thereby effectively rebutting any contention that petitioners’ method of deferral was purely artificial. The system and method of accounting on an accrual basis with the deferral of income so that it could be closely matched to the corresponding expenses, was designed to clearly reflect petitioners’ true income within the meaning of the applicable statutes and regulations. As pointed out in the Beacon and Schuessler cases, any other method would result in a distortion of true income. Compare, Waldheim" }, { "docid": "2911174", "title": "", "text": "Campbell, 7 Cir., 181 F. 2d 451, 469, 472, certiorari denied 340 U.S. 850, 71 S.Ct. 78, 95 L.Ed. 623 (pointing out that an agreement for services had been fully performed); and Whitaker’s Estate v. Commissioner of Internal Revenue, 5 Cir., 259 F.2d 379, 384. On the facts we have a case closely analogous to Beacon Publishing Co. v. Commissioner of Internal Revenue, supra; Bressner Radio, Inc. v. Commissioner of Internal Revenue, supra, and Bayshore Gardens, Inc. v. Commissioner of Internal Revenue, supra, and on principle one that is identical with those cases. In Bressner, the Second Circuit, in a well reasoned, sound and exhaustive opinion, deals with all facets of the question. In our view, it is not only apposite but persuasive. Even assuming arguendo that petitioners received cash payment in full at the time of contracting, the receipt of the funds could not be considered to be earned until petitioners had discharged their liabilities under the contract. Under their method of accounting, established when the partnership was formed and continually employed thereafter, petitioners reported as income in their tax returns such portion of the total amount received, as under their system of accounting had been earned, deferring the remainder of the amount received for inclusion in the year or years in which the remainder of their liability was discharged. Such system seems eminently designed to reflect true income. Manifestly, Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746, the only case in which the Supreme Court considered on the merits the question of the propriety of deferring prepaid funds, is distinguishable and therefore not controlling. Although the Tax Court in that case applied the claim of right doctrine to disallow the deferral of unearned receipts, 20 T.C. 1033, affirmed sub nom. Automobile Club of Michigan v. Commissioner of Internal Revenue, 6 Cir., 230 F.2d 585, 591, this question was not reached, for the Supreme Court delineated the issues and based its decision on the narrow ground that the particular method of deferral employed by the Club was unsatisfactory. The Court found that" }, { "docid": "18312155", "title": "", "text": "in the tax field is clearly indicated in this case. ft ft ft -ft ft ft 367 U.S. at 694-697, 81 S.Ct. 1727, 1731-1732, 6 L.Ed.2d 1109 and n. 12 (emphasis added, footnotes other than note 12 omitted). We are persuaded by this language that at least a portion of the advance payments constituted gross income in the year of their receipt, even though petitioner is an accrual-basis taxpayer. Fifth & York Co. v. United States, 234 F.Supp. 421 (W.D.Ky.1964); Chester Farrara, 44 T.C. 189 (1965). We are aware that in Beacon Publishing Co. v. Commissioner of Internal Revenue, 218 F.2d 697 (10th Cir.1955), and Bressner Radio, Inc. v. Commissioner of Internal Revenue, 267 F.2d 520 (2d Cir.1959), a contrary result was reached on this question, but those cases were decided before the Supreme Court’s decisions in Schlude v. Commissioner, supra, and American Automobile Ass’n v. United States, supra. Furthermore, although Beacon and Bressner were expressly relied on by the circuit court in Schlude v. Commissioner of Internal Revenue, 283 F.2d 234, 240 (8th Cir.1960), on appeal the Supreme Court made no affirmation of the decisions in those cases. Schlude v. Commissioner of Internal Revenue, 372 U.S. 128, 83 S.Ct. 601, 9 L.Ed.2d 633 (1963). If the Court agreed with those decisions, its discussion of the implications of the retroactive repeal of § 452, supra, was mere surplusage. The emphasis which the Court gave to those implications, however, make us unwilling to adopt such a view. We note that our consideration of this question is not influenced by the so-called “claim of right doctrine” which was held inapplicable in Beacon and Bressner and which, as was observed by Justice Stewart in his dissenting opinion in American Automobile Ass’n., determines only whether amounts whose own ership is disputed are includible in gross income and not whether “* * * such funds must necessarily be reported by an accrual-basis taxpayer as income in the year of receipt, whether or not then earned.” 367 U.S. at 700, 81 S.Ct. at 1734. Finally, petitioner relies on Consolidated-Hammer Dry Plate & Film Co. v. Commissioner" }, { "docid": "893841", "title": "", "text": "method of tax accounting for service contract income. After an audit of RCA’s tax returns for 1958 and 1959, the Internal Revenue Service (“IRS”) required RCA to report its service contract revenues upon receipt, rather than deferring recognition of any portion of them. For 1958, this change from accrual to cash accounting increased RCA’s taxable income by $8,898,916.51 and increased its tax liability by $4,627,436.59. For 1959, the adjustment increased taxable income by $2,555,004.68 and tax liability by $1,328,602.66. RCA paid these increased income taxes and filed timely administrative claims for refund of the disputed sums. RCA commenced this litigation on June 18, 1969, and, after what seems to have been a lengthy interregnum of fruitless settlement talks, the case was tried in 1979. At trial, RCA contended, first, that its accrual method of tax accounting for prepaid service contract revenues “clearly reflect[ed] income” within the meaning of I.R.C. § 446(b), and that the Commissioner had therefore abused his discretion in rejecting that method. Alternatively, RCA argued that its adoption of the accrual method after its merger with RCAS was permissible under regulations promulgated pursuant to I.R.C. § 381(c)(4), concerning an acquiring corporation’s assumption of an acquired corporation’s accounting practices. Finally, RCA asserted that its accrual method was acceptable because certain revenue rulings, Rev.Proc. 71-21, 1971 — 2 C.B. 549, and Rev.Rul. 71-299, 1971-2 C.B. 218, promulgated by the Commissioner in 1971 and permitting limited use of accounting procedures such as RCA’s, are retroactive in effect. For its part, the government argued that under a trio of Supreme Court cases, Automobile Club of Michigan v. Commissioner, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957), (“Michigan”); American Automobile Association v. United States, 367 U.S. 687, 81 S.Ct. 1727, 6 L.Ed.2d 1109 (1961) (“AAA”), and Schlude v. Commissioner, 372 U.S. 128, 83 S.Ct. 601, 9 L.Ed.2d 633 (1963) (“Schlude”), methods of accrual accounting based on projections of customers’ demands for services do not “clearly reflect income,” and that in view of these decisions the Commissioner did not abuse his discretion in rejecting RCA’s method. The government also pressed a broader" }, { "docid": "12476000", "title": "", "text": "for supplies, etc., was totally unrelated to the quality-bonus system. Other cases cited by plaintiff with regard to the proper time for deductions by an accrual-basis taxpayer include the following: American National Co. v. United States, 274 U.S. 99 (1927); United States v. Anderson, supra; Central Cuba Sugar Co. v. Comm’r, 198 F. 2d 214 (2d Cir.), cert. denied 344 U.S. 874 (1952); Air-Way Elec. Appliance Corp. v. Guitteau, 123 F. 2d 20 (6th Cir. 1941); and Warren Co. v. Comm'r, 46 B.T.A. 897 (1942), acq., 1942-2 Cum. Bull. 19, aff’d regarding different issue, 135 F. 2d 679 (5th Cir. 1943). For reasons explained above, each of the decisions cited by plaintiff is materially distinguishable from the instant ease. The quality bonus clue a manager for a particular quarter was paid between 7 and 8 months after the end of the quarter. Finding 28, infra. Subsequent to the decision in American Automobile Ass’n v. United States, supra, § 456 was added to the Internal Revenue Code of 1954. This section provides, in effect, that a taxpayer may elect to treat prepaid dues income in a manner like that utilized by the taxpayer in American Automobile Ass’n. The holding of American Automobile Ass’n was followed by the majority in Schlude v. Comm’r, 372 U.S. 128 (1963). Both of these cases involved the attempted deferral of income. See also Parkchester Beach Club Corp. v. Comm’r, 335 F. 2d 478 (2d Cir. 1964). However, the same principles apply to the treatment of estimated future expenses. Commissioner v. Milwaukee & Suburban Transport Corp., 293 F. 2d 628 (7th Cir. 1961), cert. denied, 368 U.S. 976 (1962); Simplified Tax Records, Inc., 41 T.C. 75, 79 (1963). The taxpayer in Brown v. Helvering, supra, was a general agent for fire insurance companies. Eor each policy written, Brown received an “overriding commission.” In the event of cancellation by the policyholder, Brown was required to make a refund of the overriding commission received for that policy. Brown, an accrual-basis taxpayer, deducted from accrued commissions for the year an estimate of the amount of such commissions which would be" }, { "docid": "9336032", "title": "", "text": "suspect, because of its repeated emphasis on the Commissioner’s discretion under Sec. 41 of the 1939 Code and Sec. 446 of the 1954 Code, and the legislative history of Secs. 452 and 462, that the majority of the Supreme Court stand for the principle that, absent statutory sanction for it, unless the taxpayer can show that the Commissioner clearly abused his discretion in disallowing deferral of prepaid income or accrual of estimated future expenses, this exercise of the Commissioner’s discretion will not be disturbed by the Court even though the taxpayer’s method of accounting is in accord with generally accepted principles of commercial accounting. We also suspect that this principle, if such it be, will meet with some resistance in the courts. See the dissenting opinions of Mr. Justice Stewart in American Automobile Assn. v. United States, 367 U.S. 687, 698, 81 S.Ct. 1727, 6 L.Ed.2d 1109 (1961) and Schlude v. Commissioner of Internal Revenue, 372 U.S. 128, 137, 83 S.Ct. 601, 9 L.Ed.2d 633 (1963), and the opinions of various Courts of Appeals in Bressner Radio, Inc. v. Commissioner of Internal Revenue, 267 F.2d 520 (C.A.2, 1959), reversing and remanding 28 T.C. 378 (1957), Beacon Publishing Co. v. Commissioner of Internal Revenue, 218 F.2d 697 (C.A.10, 1955) , reversing 21 T.C. 610 (1954), Schuessler v. Commissioner of Internal Revenue, 230 F.2d 722 (C.A.5, 1956) , reversing 24 T.C. 247 (1955), and Pacific Grape Prod. Co. v. Commissioner of Internal Revenue, 219 F. 2d 862 (C.A.9, 1955), reversing 17 T.C. 1097 (1952). The application of such a principle to the facts here would certainly require a decision for respondent on this issue. Simplified Tax Records, Inc. v. Commissioner, 41 T.C. 75, 81, n. 4 (1963). The question remains: Was there reasonable basis for the Commissioner’s action in this case ? It appears to us there was ample basis. The most salient feature in this case is the fact that many or possibly most of the expenses which taxpayer wishes to presently deduct will not actually be paid for 15, 20 or even 30 years (the taxpayer has not attempted to" }, { "docid": "18312154", "title": "", "text": "§ 462, but quickly repealed them. Since that time Congress has authorized the desired accounting only in the instance of prepaid subscription income, which, as was pointed out in Michigan, is ratably earned by performance on “publication dates after the tax year.” [Automobile Club of Mich. v. Commissioner of Internal Revenue] 353 U.S. 180, 189, note 20 [77 S.Ct. 707, 712, 1 L.Ed. 2d 746]. It has refused to enlarge § 455 to include prepaid membership dues. At the very least, this background indicates congressional recognition of the complications inherent in the problem and its seriousness to the general revenue. We must leave to the Congress the fashioning of a rule which, in any event, must have wide ramifications. The Committees of the Congress have standing committees expertly grounded in tax problems, with jurisdiction covering the whole field of taxation and facilities for studying considerations of policy as between the various taxpayers and the necessities of the general revenues. The validity of the long-established policy of the Court in deferring, where possible, to congressional procedures in the tax field is clearly indicated in this case. ft ft ft -ft ft ft 367 U.S. at 694-697, 81 S.Ct. 1727, 1731-1732, 6 L.Ed.2d 1109 and n. 12 (emphasis added, footnotes other than note 12 omitted). We are persuaded by this language that at least a portion of the advance payments constituted gross income in the year of their receipt, even though petitioner is an accrual-basis taxpayer. Fifth & York Co. v. United States, 234 F.Supp. 421 (W.D.Ky.1964); Chester Farrara, 44 T.C. 189 (1965). We are aware that in Beacon Publishing Co. v. Commissioner of Internal Revenue, 218 F.2d 697 (10th Cir.1955), and Bressner Radio, Inc. v. Commissioner of Internal Revenue, 267 F.2d 520 (2d Cir.1959), a contrary result was reached on this question, but those cases were decided before the Supreme Court’s decisions in Schlude v. Commissioner, supra, and American Automobile Ass’n v. United States, supra. Furthermore, although Beacon and Bressner were expressly relied on by the circuit court in Schlude v. Commissioner of Internal Revenue, 283 F.2d 234, 240 (8th Cir.1960)," }, { "docid": "6883442", "title": "", "text": "fact earned as are a seller’s sales receipts despite subsequent returns. The Court’s denial of the requested deferral was thus not a departure from but rather an insistence upon sound accrual accounting for earned income. See, Rothaus, Taxation of Prepaid Income, 17 Md.L.Rev. 121, 127 (1957). Alternatively the Court found that since petitioner had itself previously uniformly treated the commissions as income in the year of receipt, its assertion of the right to defer constituted a change of accounting procedures. It held that the Commissioner “was vested with a wide discretion in deciding whether to permit or forbid a change.” 291 U.S. at page 204, 54 S.Ct. at page 361. As to this deferral issue it did not mention the “claim of right” concept or cite prior claim of right cases. Here there is no argument whatever that the prepaid receipts as to which the deferral is sought were anything but unearned, and therefore as to the first ground of the decision against deferral in Brown the case is not in point. Moreover, here there was no change either in the petitioner’s underlying method, which was concededly an accrual method, or in his treatment of receipts under service contracts, which from the start he has sought to defer. The Commissioner urges that in any event Automobile Club of Michigan v. Commissioner, supra, establishes the applicability of the so-called “claim of right” doctrine to disallow deferrals of these unearned receipts. While this was true of the decision in the Tax Court, 1953, 20 T.C. 1033, and apparently of the decision in the Court of Appeals, 6 Cir., 1956, 230 F.2d 585, 586-587, the decision of the Supreme Court was placed on the far narrower ground that the particular method of deferral adopted by the Club was unsatisfactory. “The pro rata allocation of membership dues in monthly amounts is purely artificial and bears no relation to the services which petitioner may in fact be called upon to render for the member.” 353 U.S. at page 189, 77 S.Ct. at page 712. It is apparent from the decision of the majority that at" }, { "docid": "4084966", "title": "", "text": "consistent with this opinion. . 48 T.C. 411. . See Aland, Prepaid Income and Estimated Future Expenses, Jan. 1968 ABA Journal 84; Annotation: Income Taxes —Prepayment—When Income, 9 L.Ed.2d 1191. . The quotations are from the commissioner’s brief. . 26 U.S.C. sec. 446. . 26 U.S.C. sec. 455. . 26 U.S.C. sec. 456. . Automobile Club of Michigan v. Commissioner of Internal Revenue (1957), 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746. . American Auto. Ass’n v. United States (1961), 367 U.S. 687, 81 S.Ct. 1727, 6 L.Ed.2d 1109. . Schlude v. Commissioner of Internal Revenue (1963), 372 U.S. 128, 83 S.Ct. 601, 9 L.Ed.2d 633. . See I.T. 3369, 1940-1 Cum.Bull. 46, modified, Rev.Rul. 57-87, 1957-1 Cum. Bull. 507. See also Anno., 9 L.Ed.2d 1191, at 1201-03. . Beacon Publishing Company v. Commissioner of Internal Revenue (10th Cir., 1955), 218 F.2d 697. . 26 U.S.C. sec. 455. . See footnote 14, infra. . The tax court also held that all the events which would determine liability for the municipal tax and the compensation to the visiting team had not oe-curred before May 31, 1962, and that therefore no deduction was allowable on an accrual basis. Artnell relies in this court solely on the proposition that these amounts were not income." }, { "docid": "11093329", "title": "", "text": "of the Internal Revenue Code; Thus, while generally accepted methods of accounting are of probative value and are treated with respect by Treas. Reg. § 1.446-1 (a) (2), they are not necessarily synonymous -with the proper tax accounting to be afforded an accrual item in a given situation. See, Field Enterprises Inc. v. United States, 172 Ct. Cl. 77, 84, 348 F. 2d 485, 489 (1965), cert. denied, 382 U.S. 1009 (1966); Cincinnati, New Orleans and Texas Pacific Ry. v. United States, 191 Ct. Cl. 572, 583, 424 F. 2d 563, 570 (1970); and Simplified Tax Records, Inc., 41 T.C. 75, 81 (1963). This variance is especially noticeable in cases where the taxpayer’s accounting method results in the deferment of income. The taxpayer in such a situation is generally relying on well-known accounting principles which essentially focus on a conservative matching of income and expenses to the end that an item of income will be related to its correlative expenditure. Tax accounting, on the other hand, starts from the premise of a need for certainty in the collection of revenues and focuses on the concept of ability to pay. Thus, under this theory, where an item of income has been received even though 'as yet unearned, it should be subject to taxation because the taxpayer has in hand (or otherwise available) the funds necessary to pay the tax due. (See, Silk, Advance Payments-Prepaid Income: Recent Developments: An Old Problem Put to Rest, 30 N.Y.U. Inst. Fed Tax., 1651, 1652-1653 (1972)). Putting such theoretical considerations aside for the moment, it may be helpful briefly to resummarize Ebasco’s long-consistent method of accounting under which receipts are accrued and reported as income only at the time the engi- nearing and similar services wbicli generate such receipts are rendered. In many oases, Ebasco’s right to bill or receive payment arose prior to the annual accounting period in which the related services were to 'be performed. In other cases, the right to bill or receive payment arose subsequent to the annual accounting period in which the services were performed. When under the terms of a" }, { "docid": "12476001", "title": "", "text": "taxpayer may elect to treat prepaid dues income in a manner like that utilized by the taxpayer in American Automobile Ass’n. The holding of American Automobile Ass’n was followed by the majority in Schlude v. Comm’r, 372 U.S. 128 (1963). Both of these cases involved the attempted deferral of income. See also Parkchester Beach Club Corp. v. Comm’r, 335 F. 2d 478 (2d Cir. 1964). However, the same principles apply to the treatment of estimated future expenses. Commissioner v. Milwaukee & Suburban Transport Corp., 293 F. 2d 628 (7th Cir. 1961), cert. denied, 368 U.S. 976 (1962); Simplified Tax Records, Inc., 41 T.C. 75, 79 (1963). The taxpayer in Brown v. Helvering, supra, was a general agent for fire insurance companies. Eor each policy written, Brown received an “overriding commission.” In the event of cancellation by the policyholder, Brown was required to make a refund of the overriding commission received for that policy. Brown, an accrual-basis taxpayer, deducted from accrued commissions for the year an estimate of the amount of such commissions which would be refunded in future years. The Court upheld disallowance of the deduction. 291 U.S. at 203. üntil the year when cancellation occurred, the liability to make refunds was contingent. Brown v. Helvering is relevant to the instant case, for both involve the attempted deduction of liabilities which had not become fixed. Int. Rev. Code of 1954, § 7605(b), provides as follows: “* * * No taxpayer shall be subjected to unnecessary examination or investigations, and only one inspection of a taxpayer’s books of account shall be made for each taxable year unless the taxpayer requests otherwise or unless the Secretary or his delegate, after investigation, notifies the taxpayer in writing that an additional inspection is necessary.” Also cited by plaintiff is Application of Leonardo, 208 F. Supp. 124 (N.D. Cal. 1962), an action in which the taxpayer sought to suppress the use, as the basis for criminal prosecution, of evidence obtained allegedly in violation of § 7605(b). The court granted the relief requested. 208 P. Supp. at 127. Whether or not the decision in Leonardo was" }, { "docid": "6883435", "title": "", "text": "should be included in income. The proposition he urges is that sums received by a taxpayer without restriction on use must be reported in the year of receipt despite the fact that as an accounting matter they cannot be considered as earned in that year because they were received in return for the taxpayer’s assumption of a liability to perform services in a subsequent year. He argues that only if such receipts are so reported will the method of accounting for tax purposes “clearly reflect the income” of an accrual basis taxpayer. He claims that this rule is an aspect of the “claim of right” doc- • trine for the existence and applicability of which he relies on a line of cases beginning with North American Oil Consolidated v. Burnet, 1932, 286 U.S. 417, 52 S.Ct. 613, 76 L.Ed. 1197, and including Brown v. Helvering, 1934, 291 U.S. 193, 54 S.Ct. 356, 78 L.Ed. 725; Spring City Foundry Co. v. Commissioner, 1934, 292 U.S. 182, 54 S.Ct. 644, 78 L.Ed. 1200, and more recently Heiner v. Mellon, 1938, 304 U.S. 271, 58 S.Ct. 926, 82 L.Ed. 1337; Security Flour Mills Co. v. Commissioner, 1944, 321 U.S. 281, 64 S.Ct. 596, 88 L.Ed. 725; United States v. Lewis, 1950, 340 U.S. 590, 71 S.Ct. 522, 95 L.Ed. 560; Healy v. Commissioner, 1953, 345 U.S. 278, 73 S.Ct. 671, 97 L.Ed. 1007; and Automobile Club of Michigan v. Commissioner, 1957, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746. However, with the sole exception of Automobile Club of Michigan v. Commissioner, supra, not one of these cases deals on the merits with the question of the propriety of the deferral of prepaid receipts held without other restriction as to use than the liability to perform future services on demand. Therefore in order to establish his proposition the Commissioner must demonstrate that these cases nevertheless establish a standard for the definition of those methods of accounting which are acceptable under § 41 that excludes the deferral of such unearned receipts. The cases individually or the so-called “claim of right” doctrine which they may" }, { "docid": "9336025", "title": "", "text": "Commissioner has often relied on the “claim of right test,” see cases cited, note 21, supra, to disallow a deduction or a deferral of income in cases where the taxpayer’s receipt of the funds was unrestricted. He appears to be doing so here, for the Government says in its brief, “Taxpayer received the full economic benefit of these proceeds, without any restriction as to use or enjoyment, and without any duty to return or transfer any part of these proceeds.” The claim of right doctrine, however, has not enjoyed universal acceptance in the courts, see e. g., Schues-sler v. Commissioner of Internal Revenue, 230 F.2d 722 (5th Cir. 1956); Beacon Publishing Co. v. Commissioner of Internal Revenue, 218 F.2d 697 (10th Cir. 1955), and in two recent major decisions in this area, American Automobile Assn. v. United States, 367 U.S. 687, 81 S.Ct. 1727, 6 L.Ed.2d 1109 (1961) (hereafter AAA) and Schlude v. Commissioner of Internal Revenue, 372 U.S. 128, 83 S.Ct. 601, 9 L.Ed.2d 633 (1963) (hereafter Schlude), the Supreme Court seems to have placed little if any reliance on the doctrine. Both AAA and Schlude involved an attempt to defer prepaid receipts to the future years when they allegedly would be “earned.” In AAA the association received membership dues a year in advance, and membership could be commenced in any month of the year. In return for the dues the association provided its members with certain services, such as road maps, highway repair service, etc., but the services were performed only on the demand of an individual member. Rather than reporting all of the dues for the tax year in which received, the association “prorated” them over a twelve month membership period, overlapping two tax years, according to estimates of future costs based on its past experience. The Supreme Court held that even though the taxpayer’s accrual system was in accord with generally accepted commercial accounting principles, the Commissioner could reject it as “not clearly reflecting income” for tax purposes. Since the services involved were not performed on fixed dates after the tax year, but only on demand" }, { "docid": "1360395", "title": "", "text": "allowed income recognition to be deferred in only limited circumstances. Thus, where future services will be performed at random times over the term of a service contract, rather than equally in each time period, the courts have generally required that the taxpayer recognize current income in the entire amount of the payment received. Schlude v. Commissioner, 372 U.S. 128, 83 S.Ct. 601, 9 L.Ed.2d 633 (1963); American Auto. Ass'n v. United States, 367 U.S. 687, 81 S.Ct. 1727, 6 L.Ed.2d 1109 (1961); Automobile Club of Mich. v. Commissioner, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957); RCA Corp. v. United States, 664 F.2d 881, 886-89 (2d Cir.1981), cert. denied, 457 U.S. 1133, 102 S.Ct. 2958, 73 L.Ed.2d 1349 (1982). For a general discussion of the current tax consequences of contingent future events, and the relationship between tax accounting and generally accepted financial accounting principles, see Thor Power Tool Co. v. Commissioner, 439 U.S. 522, 541-44, 99 S.Ct. 773, 780, 58 L.Ed.2d 785 (1979). .In many respects the IRS’s refusal to give effect to the AMA's association equity account as a valid means to defer income recognition is functionally identical to the judgment under section 446 of the Code that a taxpayer’s accounting method “does [not] clearly reflect income.” The Supreme Court has stressed that the Commissioner has been accorded a great deal of discretion in assessing the accuracy of a taxpayer’s method of accounting; the IRS’s determination in this regard \"should not be interfered with unless clearly unlawful.” Lucas v. American Code Co., 280 U.S. 445, 449, 50 S.Ct. 202, 203, 74 L.Ed. 538 (1930); see also United States v. Hughes Properties, Inc., 476 U.S. 593, 603, 106 S.Ct. 2092, 2097, 90 L.Ed.2d 569 (1986); Thor Power Tool Co. v. Commissioner, 439 U.S. 522, 532, 99 S.Ct. 773, 780, 58 L.Ed.2d 785 (1979). This consideration suggests yet another reason why we should be reluctant to invalidate the IRS’s determination that funds assigned to the association equity account constitute current \"income” of the AMA." }, { "docid": "4084965", "title": "", "text": "excluded from gross income on that account. When White Sox sold a ticket to a future game, the probability arose, subject to possible refund and similar contingencies, that when the game was played this sale would be reflected in White Sox’ liability to the city and the visiting club. Although the amount of the liability which would arise was dependent on the sale, we think the tax court correctly decided that such liability was, for this purpose, similar in character to the other liabilities which would be incurred in fulfilling the obligation to the purchaser of the ticket. There was nothing which created any fiduciary duty with respect to the funds received. There was not even the creation of a liability simultaneously with the sale. In the event that the question of exclusion from income of the municipal amusement tax and visiting team compensation becomes material we agree with the tax court that these items are not to be excluded. The decision of the tax court is reversed and the cause remanded for further hearing consistent with this opinion. . 48 T.C. 411. . See Aland, Prepaid Income and Estimated Future Expenses, Jan. 1968 ABA Journal 84; Annotation: Income Taxes —Prepayment—When Income, 9 L.Ed.2d 1191. . The quotations are from the commissioner’s brief. . 26 U.S.C. sec. 446. . 26 U.S.C. sec. 455. . 26 U.S.C. sec. 456. . Automobile Club of Michigan v. Commissioner of Internal Revenue (1957), 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746. . American Auto. Ass’n v. United States (1961), 367 U.S. 687, 81 S.Ct. 1727, 6 L.Ed.2d 1109. . Schlude v. Commissioner of Internal Revenue (1963), 372 U.S. 128, 83 S.Ct. 601, 9 L.Ed.2d 633. . See I.T. 3369, 1940-1 Cum.Bull. 46, modified, Rev.Rul. 57-87, 1957-1 Cum. Bull. 507. See also Anno., 9 L.Ed.2d 1191, at 1201-03. . Beacon Publishing Company v. Commissioner of Internal Revenue (10th Cir., 1955), 218 F.2d 697. . 26 U.S.C. sec. 455. . See footnote 14, infra. . The tax court also held that all the events which would determine liability for the municipal tax and the compensation" } ]

[ { "docid": "122241", "title": "", "text": "address the use, relevance, and admissibility of the classified information that was the subject of defendants’ Section 5 Notice, and on October 20, 2008, the Court conducted such a hearing. After hearing from counsel for both sides at the sealed hearing, the Court also permitted counsel for defendants to make a further, ex parte proffer as to the purported relevance of the classified information to their defense in this case. See sealed transcript dated October 20, 2008. The classified information proffered by defendants can be summarized in this public document as relating to past contact between the defendants and government officials that, defendants argue, make it more likely than otherwise that defendants would not have entered into the conspiratorial agreement alleged in the Indictment. But the classified information itself, relating to contacts that not only occurred many years prior to the events at issue in this case but that themselves related to wholly different events, has no such probative value and is, instead, only likely to inject irrelevancy and confusion into this case if allowed in evidence. See Fed.R.Evid. 401, 403. Moreover, although couched in terms of rendering less likely than otherwise that the defendants would have entered the alleged conspiracy, the proffer suffers from many of the same infirmities noted by the Second Circuit in United, States v. Giffen, 473 F.3d 30, 43 (2d Cir.2006), where the Court of Appeals expressed “great difficulty” with a defense that would “grant any criminal carte blanche to violate the law should he subjectively decide that he serves the government’s interests thereby.” Id. (quoting United States v. Wilson, 721 F.2d 967, 975 (4th Cir.1983)). Stripped to its essence the proffered evidence comes down to the assertion that, because the defendant had years previously acted in a particular way in analogous circumstances, the jury should give more credit to his assertions that he did so here. But the situations are not, on their face, analogous, and it would require a trial within a trial before the jury could determine whether there was any meaningful analogy at all. Moreover, even if there were, the Federal" } ]

[ { "docid": "20905471", "title": "", "text": "further use of the infringing Ruckus video. The open question is whether such an injunction should sweep any more broadly. The Court has broad discretion to fashion injunctive relief. See Patsy’s Italian Rest., Inc. v. Banas, 658 F.3d 254, 272 (2d Cir.2011). However, “[i]njunctive relief should be narrowly tailored to fit specific legal violations” and “should not impose unnecessary burdens on lawful activity.” Guthrie Healthcare Sys., 28 F.Supp.3d at 215 (quoting Waldman Publ'g Corp. v. Landoll, Inc., 43 F.3d 775, 785 (2d Cir.1994)) (internal quotation marks omitted); Patsy’s Brand, Inc. v. I.O.B. Realty, Inc., 317 F.3d 209, 220 (2d Cir.2003) (same); Sterling Drug, Inc. v. Bayer AG, 14 F.3d 733, 750 (2d Cir.1994) (“[T]he Lanham Act demands that injunctive relief be no broader than necessary to cure the effects of the harm caused.”) (citation omitted). “An injunction is over-broad when it seeks to restrain the defendants from engaging in legal conduct, or from engaging in illegal conduct that was not fairly the subject of litigation.” City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 145 (2d Cir.2011). In the Court’s view, the injunction the Beastie Boys propose is highly over-broad. It would sweep well beyond the single video at issue in this lawsuit to expansively ban a host of hypothetical future acts that the Beastie Boys cast as infringement. See, e.g., Starter Corp. v. Converse, Inc., 170 F.3d 286, 300 (2d Cir.1999) (vacating injunction that went “beyond the scope of the issues tried in the case”); Waldman Publ’g Corp., 43 F.3d at 785-86 (same). And the injunction, as proposed, could easily encompass lawful uses of the Beastie Boys’ music or names. Given Monster’s marketing strategy, in particular its reliance on social media and sponsored (and somewhat unstructured) events like the Ruckus in the Rockies, almost any reference to the Beastie Boys by Monster or its agents could be construed as having been made “for the purposes of advertising and trade.” See Dkt. 165, Ex. A (proposed order). The proposed injunction could therefore sweep in instances of nominative fair use, a DJ’s mention of the Beastie Boys during" }, { "docid": "20905467", "title": "", "text": "and the Court charged the jury, that the value of actual copyright damages was set by the market: the price that a willing buyer and a willing seller would have agreed upon for a license to use the Beastie Boys’ music and names in Monster’s video, for the duration of time that video was available. Tr. 1609 (jury instructions) (citing On Davis v. The Gap, Inc., 246 F.3d 152, 166 (2d Cir.2001)). Similarly, the Court charged the jury that the value of Lanham Act damages was measured by the price that a willing buyer and a willing seller would agree upon for an implied endorsement by the Beastie Boys in the forum represented by the video. Tr. 1617 (jury instructions) (citing Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1111 (9th Cir.1992)). And the award of statutory damages under the Copyright Act was keyed to the willfulness of Monster’s conduct, including “Monster’s state of mind”; “the expenses saved, and profits earned, if any, by Monster in connection with the infringement”; and “the deterrent effect of such an award on Monster and third parties.” Tr. 1613 (jury instructions) (citing Psihoyos v. Wiley, 748 F.3d 120, 127 (2d Cir.2014)). None of these awards, as charged, took into account or sought to compensate the Beastie Boys for the injury caused by the forced association with Monster and its products. Nor could this injury be easily measured, “given the difficulty of protecting a right to exclude through monetary remedies.” eBay, 547 U.S. at 395, 126 S.Ct. 1887 (Roberts, C.J., concurring) (citation omitted); see also Omega Importing Corp. v. Petri-Kine Camera Co., 451 F.2d 1190, 1195 (2d Cir.1971) (“Where there is ... such high probability of confusion, injury irreparable in the sense that it may not be fully compensable in damages almost inevitably follows.”). Turning to the third factor, the balance of hardships, Monster argues that an injunction would frustrate its “First Amendment right to express itself,” because “there are many ways in which the mention of the ‘Beastie Boys’ and/or [its members’] names would constitute fair use and/or otherwise be permissible.” Dkt. 188, at 10." }, { "docid": "20905457", "title": "", "text": "the Beastie Boys’ songs and names in the video, that Monster had thereby sought to associate its products with the Beastie Boys and to convey the group’s endorsement of Monster, and that Monster had posted links to the video on various websites to advertise and promote Monster’s products, events, and corporate goodwill. Compl. ¶¶ 58-68. Based on these allegations, the Beastie Boys brought claims of copyright infringement in violation of the Copyright Act, and false endorsement in violation of the Lanham Act. Id. ¶¶ 70-100, 109-17. On October 4, 2012, Monster filed an Answer. Dkt. 5 (“Answer”). The parties later filed an Amended Complaint and an Amended Answer. Dkt. 91, 98. Very shortly before trial, Monster conceded liability on the copyright infringement claims. See Dkt. 141, at 48; Tr. 91-92. Trial therefore focused on whether the Copyright Act violations had been willful; whether Monster was liable for false endorsement under the Lanham Act and, if so, whether Monster’s conduct had been intentionally deceptive; and the appropriate damages for each claim. Trial began May 27, 2014, and testimony concluded June 4, 2014. On June 5, 2014, the jury returned its verdict. See Dkt. 147 (“Verdict Form”). On the Copyright Act claims, the jury found that each of Monster’s 10 acts of infringement was willful, id. at 2, which increased the range of available statutory damages, see 17 U.S.C. §§ 504(c)(l)-(2). On the Lanham Act claim, the jury found that Monster had “used the Beastie Boys’ persona without permission, thereby suggesting a false endorsement of Monster’s products.” Verdict Form at 4. On that claim, the jury also found that Monster had “intended to deceive consumers concerning the Beastie Boys’ endorsement of its products,” and that Monster had not proven “that consumers were not, in fact, confused or deceived as to whether the Beastie Boys endorsed Monster’s products.” Id. The jury awarded a total of $1.7 million in damages. Id. at 2-4. On July 22, 2014, Monster moved under Federal Rule of Civil Procedure 50(b) for judgment as a matter of law or, in the alternative, for a new trial pursuant to Rule" }, { "docid": "20905475", "title": "", "text": "endorsement here, egregious though they were, were transgressions that are unlikely to recur. Cf. Guzman v. Bevona, 90 F.3d 641, 650 (2d Cir.1996) (finding injunction overbroad where it applied to persons who were unlikely to commit further wrongdoing). Any contrary conclusion would be based on impermissible speculation. To the extent the Beastie Boys seek a permanent injunction that sweeps beyond the use of the infringing Ruckus video on which this case focused, the Court therefore denies the Beastie Boys’ request for a permanent injunction. CONCLUSION For the foregoing reasons, the Court grants the Beastie Boys’ motion for a permanent injunction, limited to the infringing version of Monster’s Ruckus video at issue in this litigation. Specifically, it is hereby ORDERED that: (1) Monster and Monster’s employees, officers, successors, partners, agents, and assigns are permanently enjoined from reproducing, publicly displaying, distributing, performing, or promoting the version of Monster’s “Ruckus in the Rockies 2012 ’ video that included copyrighted musical compositions and sound recordings owned or controlled in whole or in part by the Beastie Boys or Brooklyn Dust music, and that contained text referring to the Beastie Boys and to one of the group’s members. (2) By March 6, 2015, Monster shall remove the infringing video from all places where it has been stored and/or made available by Monster, shall destroy any and all copies of that video, and shall certify to such removal and destruction in a written undertaking filed with the Court. Counsel for Monster, however, are authorized to retain a copy of the video for purposes of representing Monster in this litigation and any appeal, and are at liberty to make use of the video for purposes of representing Monster’s legal interests. The Clerk of Court is respectfully directed to terminate the motion pending at docket number 165. SO ORDERED. . The Beastie Boys are a New York partnership. The other plaintiffs are Michael Diamond, a Beastie Boys member; Adam Horo-vitz, a Beastie Boys member; Dechen Yauch, executrix of the Estate of Adam Yauch, a late Beastie Boys member; and Brooklyn Dust Music, a distinct entity through which the" }, { "docid": "20905464", "title": "", "text": "81. In copyright and trademark cases, courts have repeatedly held that “proof of a likelihood of confusion ... create^] a presumption of irreparable harm” because lost sales or diminished reputation are difficult if not impossible to measure. Guthrie Healthcare Sys. v. ContextMedia, Inc., 28 F.Supp.3d 193, 215 (S.D.N.Y.2014) (quoting Fed. Express Corp. v. Fed. Espresso, Inc., 201 F.3d 168, 174 (2d Cir.2000)) (omission and alteration in original); see also, e.g., Salinger, 607 F.3d at 81; Coach, Inc. v. Zhen Zhen Weng, No. 13 Civ. 445(RWS), 2014 WL 2604032, at *21 (S.D.N.Y. June 9, 2014); Sub-Zero, Inc. v. Sub Zero N.Y. Refrigeration & Appliances Servs., Inc., No. 13 Civ. 2548(KMW)(JLC), 2014 WL 1303434, at *6 (S.D.N.Y. Apr. 1, 2014). Here, because the jury found that the Beastie Boys had proven a likelihood of consumer confusion as to the group’s endorsement of Monster’s products, Verdict Form at 4, and because the evidence supported that finding, see December 4, 2014 Opinion at 52-55, the Court may presume irreparable harm. Significantly, the two surviving members of the Beastie Boys testified, emphatically, that, “since the beginning,” they have refused to license their music for product advertisements because they view such licenses as “a form of selling out.” Tr. 118- 19 (Horovitz); see also Tr. 865 (Diamond). The evidence at trial corroborated that claim. The Beastie Boys’ manager testified that, with one arguable exception, the Beastie Boys had never authorized use of their music or names in connection with a product. Tr. 275 (Silva). The Beastie Boys’ extensive licensing history, which was received into evidence at trial, similarly demonstrated that, although the Beastie Boys have licensed their music for use in television programs, motion pictures, movie trailers, and video games, they have never done so for product commercials. See PX 219, PX 220. Beyond the group’s general policy against licensing their music for product advertisements, the surviving band members testified, credibly, that, had they been asked, they would not have granted permission for Monster to use their music in the Ruckus video because they did not want to associate with Monster’s products and disliked the portrayal" }, { "docid": "20905454", "title": "", "text": "argues that the Beastie Boys are not entitled to injunctive relief and, in the alternative, that an injunction should be limited to the infringing video at issue in this litigation. For the following reasons, the Court grants the Beastie Boys’ motion for a permanent injunction, but -agrees with Monster that such an injunction must be tightly limited to cover only the infringing video. 1. . Background The Court assumes familiarity with the facts and procedural history of this case, which were detailed in the Court’s December 4, 2014 Opinion resolving Monster’s post-trial motions. See Dkt. 182, reported at Beastie Boys v. Monster Energy Co., No. 12 Civ. 6065(PAE), 66 F.Supp.3d 424, 2014 WL 6845860 (S.D.N.Y. Dec. 4, 2014). The background most relevant to the instant motion is summarized below. A. Factual Background As part of its marketing efforts, Monster organizes and sponsors an annual event called the “Ruckus in the Rockies,” which consists of a snowboarding competition and an after-party. Tr. 1092-93. Soon after the 2012 Ruckus, Monster employees created a recap video with highlights from the event. Tr. 1114-16. For the video’s soundtrack, Monster used excerpts of five Beastie Boys songs. Tr. 1114-15. The video is just over four minutes long, and Beastie Boys’ music fills all but 32 seconds of it. See PX 211 (“video”). The video also contains text that refers to the Beastie Boys and to one of the group’s members. Id. at 3:51-3:58. Monster never obtained, or attempted to obtain, permission from the Beastie Boys or their management to use the Beastie Boys’ music and names in the video. See Tr. 121-22, 256, 875-76, 1115-16, 1173, 1316-17. Rather, the Monster employee who produced the video testified that he believed that a third party — a disc jockey who had performed at the 2012 Ruckus and had created a “Megamix” of Beastie Boys music — had the authority, and had in fact authorized Monster, to use that Mega-mix, including the underlying Beastie Boys’ songs, in the video. Tr. 1115-16. On May 9, 2012, Monster posted the video on its website, YouTube channel, and Facebook page. See" }, { "docid": "20905468", "title": "", "text": "an award on Monster and third parties.” Tr. 1613 (jury instructions) (citing Psihoyos v. Wiley, 748 F.3d 120, 127 (2d Cir.2014)). None of these awards, as charged, took into account or sought to compensate the Beastie Boys for the injury caused by the forced association with Monster and its products. Nor could this injury be easily measured, “given the difficulty of protecting a right to exclude through monetary remedies.” eBay, 547 U.S. at 395, 126 S.Ct. 1887 (Roberts, C.J., concurring) (citation omitted); see also Omega Importing Corp. v. Petri-Kine Camera Co., 451 F.2d 1190, 1195 (2d Cir.1971) (“Where there is ... such high probability of confusion, injury irreparable in the sense that it may not be fully compensable in damages almost inevitably follows.”). Turning to the third factor, the balance of hardships, Monster argues that an injunction would frustrate its “First Amendment right to express itself,” because “there are many ways in which the mention of the ‘Beastie Boys’ and/or [its members’] names would constitute fair use and/or otherwise be permissible.” Dkt. 188, at 10. As a general proposition, that is surely true, but this generalization gains no traction in the specific context of an injunction not to use the Ruckus video containing the Beastie Boys music and names. Monster long ago conceded that the video infringed the Beastie Boys’ copyrights. And the jury further found that the video violated the Beastie Boys’ trademark rights by falsely implying an endorsement. Monster therefore has no legitimate interest, let alone a First Amendment interest, in further dissemination or use of that video. Cf. Mint, Inc. v. Amad, No. 10 Civ. 9395(SAS), 2011 WL 1792570, at *3 (S.D.N.Y. May 9, 2011) (“As for the balance of hardships, ‘[o]ne who elects to build a business on a product found to infringe cannot be heard to complain if an injunction against continuing infringement destroys the business so elected.’ ” (quoting Windsurfing Int’l, Inc. v. AMF, Inc., 782 F.2d 995, 1003 n. 12 (Fed.Cir.1986)) (alteration in original)). A permanent injunction limited to the infringing Ruckus video would, therefore, protect the Beastie Boys from further injury without" }, { "docid": "20905458", "title": "", "text": "and testimony concluded June 4, 2014. On June 5, 2014, the jury returned its verdict. See Dkt. 147 (“Verdict Form”). On the Copyright Act claims, the jury found that each of Monster’s 10 acts of infringement was willful, id. at 2, which increased the range of available statutory damages, see 17 U.S.C. §§ 504(c)(l)-(2). On the Lanham Act claim, the jury found that Monster had “used the Beastie Boys’ persona without permission, thereby suggesting a false endorsement of Monster’s products.” Verdict Form at 4. On that claim, the jury also found that Monster had “intended to deceive consumers concerning the Beastie Boys’ endorsement of its products,” and that Monster had not proven “that consumers were not, in fact, confused or deceived as to whether the Beastie Boys endorsed Monster’s products.” Id. The jury awarded a total of $1.7 million in damages. Id. at 2-4. On July 22, 2014, Monster moved under Federal Rule of Civil Procedure 50(b) for judgment as a matter of law or, in the alternative, for a new trial pursuant to Rule 59 or for a reduction of the jury’s damages awards. Dkt. 168-70. On December 4, 2014, after briefing and argument, the Court denied Monster’s motion, finding that the evidence presented at trial was sufficient to support the jury’s verdict. Dkt. 182 (“December 4, 2014 Opinion”).' The Court held, in relevant part, that there was evidence on which a reasonable jury could find that Monster had falsely implied that the Beastie Boys had endorsed Monster and its products— in particular, by using the Beastie Boys’ music prominently throughout the video and by using the Beastie Boys’ names both in the video and in materials promoting the video. Id. at 40-42. The Court also held that the jury’s finding that Monster had intended to deceive customers to believe the Beastie Boys had endorsed the company had a sufficient basis in the trial evidence and reasonable inferences therefrom. Id. at 55-60. Applying the eight-factor balancing test set out in Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir.1961), the Court also held that the evidence supported" }, { "docid": "20905472", "title": "", "text": "F.3d 114, 145 (2d Cir.2011). In the Court’s view, the injunction the Beastie Boys propose is highly over-broad. It would sweep well beyond the single video at issue in this lawsuit to expansively ban a host of hypothetical future acts that the Beastie Boys cast as infringement. See, e.g., Starter Corp. v. Converse, Inc., 170 F.3d 286, 300 (2d Cir.1999) (vacating injunction that went “beyond the scope of the issues tried in the case”); Waldman Publ’g Corp., 43 F.3d at 785-86 (same). And the injunction, as proposed, could easily encompass lawful uses of the Beastie Boys’ music or names. Given Monster’s marketing strategy, in particular its reliance on social media and sponsored (and somewhat unstructured) events like the Ruckus in the Rockies, almost any reference to the Beastie Boys by Monster or its agents could be construed as having been made “for the purposes of advertising and trade.” See Dkt. 165, Ex. A (proposed order). The proposed injunction could therefore sweep in instances of nominative fair use, a DJ’s mention of the Beastie Boys during a Monster-sponsored party, or even, conceivably, commentary by Monster on this litigation. The Court is unwilling to chill Monster’s lawful expression by issuing an overbroad injunction, See Guthrie Healthcare Sys., 28 F.Supp.3d at 215 (“[A]n injunction should not impose unnecessary burdens on lawful activity.”). Moreover, based on the evidence adduced at trial, the Court is quite unpersuaded that any such a broad injunction is necessary to protect the Beastie Boys’ rights. The evidence showed that Monster’s infringement via the Ruckus video— although blatant and, as found by the jury, intentional — was an opportunistic and, in all likfelihood, anomalous occurrence. Although the evidence showed that the Beastie Boys’ fan base overlapped significantly with Monster’s target consumer market, there was no evidence whatsoever that Monster had set out, as a matter of high-level corporate strategy, to obtain and use the Beastie Boys’ music without the necessary permission, or to manufacture a false endorsement. Instead, the infringement in the Ruckus video was a product of deficient corporate controls and derelict mid- and site-level employees. As reviewed more" }, { "docid": "20905473", "title": "", "text": "a Monster-sponsored party, or even, conceivably, commentary by Monster on this litigation. The Court is unwilling to chill Monster’s lawful expression by issuing an overbroad injunction, See Guthrie Healthcare Sys., 28 F.Supp.3d at 215 (“[A]n injunction should not impose unnecessary burdens on lawful activity.”). Moreover, based on the evidence adduced at trial, the Court is quite unpersuaded that any such a broad injunction is necessary to protect the Beastie Boys’ rights. The evidence showed that Monster’s infringement via the Ruckus video— although blatant and, as found by the jury, intentional — was an opportunistic and, in all likfelihood, anomalous occurrence. Although the evidence showed that the Beastie Boys’ fan base overlapped significantly with Monster’s target consumer market, there was no evidence whatsoever that Monster had set out, as a matter of high-level corporate strategy, to obtain and use the Beastie Boys’ music without the necessary permission, or to manufacture a false endorsement. Instead, the infringement in the Ruckus video was a product of deficient corporate controls and derelict mid- and site-level employees. As reviewed more fully in the Court’s December 4, ’2014 Opinion, Monster typically relies on third-party content providers to assure proper music licensing, Tr. 1280-81, 1300, whereas the Ruckus video was produced' in-house, and Monster did not, at that time, have policies or protocols to assure that copyright and trademark interests were respected when such videos were made, Tr. 1134-37, 1371. After the Beastie Boys’ counsel alerted Monster to the infringing video, however, Monster promptly removed the video from its website, Tr. 1130, and implemented new policies, see PX 191 (email stating that “ALL videos will have to be approved by [Monster headquarters] before they get posted. Any time music is used, we will need authorization on the music”). The Beastie Boys have not pointed to any other act of infringement, or evidence outside of the episode involving the Ruckus video, that indicates a propensity by Monster to infringe on others’ intellectual property rights generally or the rights of the Beastie Boys specifically. On the basis of the trial evidence, the Court finds that the infringement and false" }, { "docid": "20905466", "title": "", "text": "of women in Monster’s video. Tr. 122 (Horovitz), 876 (Diamond). Under these circumstances, Monster’s exploitation of the Beastie Boys’ works and persona for its own benefit inflicted an intangible, yet very real, injury on plaintiffs. Against their will, the Beastie Boys were forced to associate publicly with, and advance the cause of, a corporation and marketing campaign for which they had evident disdain. As the Second Circuit has held, the “ ‘loss of First Amendment freedoms,’ ” namely, “infringement of the right not to speak, ‘for even minimal periods of time, unquestionably constitutes irreparable injury.’ ” Salinger, 607 F.3d at 81 (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)); see also Silverstein v. Penguin Putnam, Inc., 368 F.3d 77, 84 (2d Cir.2004) (“[A]n injunction should be granted if denial would amount to a forced license to use the creative work of another.”). It is, further, apparent that the monetary damages awarded by the jury did not capture — or attempt to capture— this injury. The parties agreed here, and the Court charged the jury, that the value of actual copyright damages was set by the market: the price that a willing buyer and a willing seller would have agreed upon for a license to use the Beastie Boys’ music and names in Monster’s video, for the duration of time that video was available. Tr. 1609 (jury instructions) (citing On Davis v. The Gap, Inc., 246 F.3d 152, 166 (2d Cir.2001)). Similarly, the Court charged the jury that the value of Lanham Act damages was measured by the price that a willing buyer and a willing seller would agree upon for an implied endorsement by the Beastie Boys in the forum represented by the video. Tr. 1617 (jury instructions) (citing Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1111 (9th Cir.1992)). And the award of statutory damages under the Copyright Act was keyed to the willfulness of Monster’s conduct, including “Monster’s state of mind”; “the expenses saved, and profits earned, if any, by Monster in connection with the infringement”; and “the deterrent effect of such" }, { "docid": "20905463", "title": "", "text": "warranted; and (4) that the public interest would not be disserved by a permanent injunction. Id. at 551-52 (citing, inter alia, eBay, 547 U.S. at 391, 126 S.Ct. 1837). III. Discussion As noted, the Beastie Boys seek to broadly enjoin Monster from using the Beastie Boys’ music, voices, names, and trademarks for any advertising or trade-related purpose, whereas Monster argues that, if the Court decides to issue a permanent injunction at all, that relief should be limited to the Ruckus video. The Court first considers the merits of the narrower injunction, then addresses the more expansive injunction sought by the Beastie Boys. As to the Ruckus video — which Monster concedes infringed the Beastie Boys’ copyrights, and the jury found infringed their trademarks — the Beastie Boys satisfy the four-factor test. Starting with the first factor, “[hjarm might be irremediable, or irreparable, for many reasons, including that a loss is difficult to replace or difficult to measure, or that it is a loss that one should not be expected to -suffer.” Salinger, 607 F.3d at 81. In copyright and trademark cases, courts have repeatedly held that “proof of a likelihood of confusion ... create^] a presumption of irreparable harm” because lost sales or diminished reputation are difficult if not impossible to measure. Guthrie Healthcare Sys. v. ContextMedia, Inc., 28 F.Supp.3d 193, 215 (S.D.N.Y.2014) (quoting Fed. Express Corp. v. Fed. Espresso, Inc., 201 F.3d 168, 174 (2d Cir.2000)) (omission and alteration in original); see also, e.g., Salinger, 607 F.3d at 81; Coach, Inc. v. Zhen Zhen Weng, No. 13 Civ. 445(RWS), 2014 WL 2604032, at *21 (S.D.N.Y. June 9, 2014); Sub-Zero, Inc. v. Sub Zero N.Y. Refrigeration & Appliances Servs., Inc., No. 13 Civ. 2548(KMW)(JLC), 2014 WL 1303434, at *6 (S.D.N.Y. Apr. 1, 2014). Here, because the jury found that the Beastie Boys had proven a likelihood of consumer confusion as to the group’s endorsement of Monster’s products, Verdict Form at 4, and because the evidence supported that finding, see December 4, 2014 Opinion at 52-55, the Court may presume irreparable harm. Significantly, the two surviving members of the Beastie Boys" }, { "docid": "20905476", "title": "", "text": "Dust music, and that contained text referring to the Beastie Boys and to one of the group’s members. (2) By March 6, 2015, Monster shall remove the infringing video from all places where it has been stored and/or made available by Monster, shall destroy any and all copies of that video, and shall certify to such removal and destruction in a written undertaking filed with the Court. Counsel for Monster, however, are authorized to retain a copy of the video for purposes of representing Monster in this litigation and any appeal, and are at liberty to make use of the video for purposes of representing Monster’s legal interests. The Clerk of Court is respectfully directed to terminate the motion pending at docket number 165. SO ORDERED. . The Beastie Boys are a New York partnership. The other plaintiffs are Michael Diamond, a Beastie Boys member; Adam Horo-vitz, a Beastie Boys member; Dechen Yauch, executrix of the Estate of Adam Yauch, a late Beastie Boys member; and Brooklyn Dust Music, a distinct entity through which the Beastie Boys did business. . The Court's account of the facts of this case is drawn from the transcript of testimony given at trial, Dkt. 149-63 (“Tr.”), and the exhibits admitted into evidence. . At trial, Monster elicited evidence that in 2011, the Beastie Boys had licensed four songs for use in snowboarding videos produced by Nixon, a watch company. Tr. 137-38, 873-74, 886-88. The group also authorized Nixon to create a watch bearing Diamond’s image. Tr. 125, 275, 871. Horovitz and Diamond testified that they had agreed to the use of the group’s songs and Diamond's image in this single instance because Nixon’s co-founder was a friend of Diamond's. Tr. 136, 871. The Beastie Boys donated the proceeds they earned from the watch sales to charity. Tr. 134, 872-73. . The parties’ proposed orders differ as to whether an injunction related to the infringing video should require Monster to remove and destroy all copies of that video. See Dkt. 165, Ex. A; Dkt. 188, Ex. A. There is no valid reason for Monster to" }, { "docid": "20905474", "title": "", "text": "fully in the Court’s December 4, ’2014 Opinion, Monster typically relies on third-party content providers to assure proper music licensing, Tr. 1280-81, 1300, whereas the Ruckus video was produced' in-house, and Monster did not, at that time, have policies or protocols to assure that copyright and trademark interests were respected when such videos were made, Tr. 1134-37, 1371. After the Beastie Boys’ counsel alerted Monster to the infringing video, however, Monster promptly removed the video from its website, Tr. 1130, and implemented new policies, see PX 191 (email stating that “ALL videos will have to be approved by [Monster headquarters] before they get posted. Any time music is used, we will need authorization on the music”). The Beastie Boys have not pointed to any other act of infringement, or evidence outside of the episode involving the Ruckus video, that indicates a propensity by Monster to infringe on others’ intellectual property rights generally or the rights of the Beastie Boys specifically. On the basis of the trial evidence, the Court finds that the infringement and false endorsement here, egregious though they were, were transgressions that are unlikely to recur. Cf. Guzman v. Bevona, 90 F.3d 641, 650 (2d Cir.1996) (finding injunction overbroad where it applied to persons who were unlikely to commit further wrongdoing). Any contrary conclusion would be based on impermissible speculation. To the extent the Beastie Boys seek a permanent injunction that sweeps beyond the use of the infringing Ruckus video on which this case focused, the Court therefore denies the Beastie Boys’ request for a permanent injunction. CONCLUSION For the foregoing reasons, the Court grants the Beastie Boys’ motion for a permanent injunction, limited to the infringing version of Monster’s Ruckus video at issue in this litigation. Specifically, it is hereby ORDERED that: (1) Monster and Monster’s employees, officers, successors, partners, agents, and assigns are permanently enjoined from reproducing, publicly displaying, distributing, performing, or promoting the version of Monster’s “Ruckus in the Rockies 2012 ’ video that included copyrighted musical compositions and sound recordings owned or controlled in whole or in part by the Beastie Boys or Brooklyn" }, { "docid": "20905460", "title": "", "text": "the verdict that the video was likely to cause consumer confusion, in part because the Beastie Boys are popular among Monster’s target demographic, and because energy drinks are typically purchased on impulse rather than after careful consideration. Dkt. 182, at 52-55. On June 27, 2014, shortly after trial concluded, the Beastie Boys moved for a permanent injunction, based on the liability findings on the Copyright Act and Lan-ham Act claims. Dkt. 165. Specifically, the Beastie Boys sought to permanently enjoin Monster: “(a) from using, distributing, or promoting” the Ruckus video; “(b) from using, distributing, or promoting any advertising which includes or uses, without plaintiffs’ consent, any copyrighted musical work or sound recording owned or controlled in whole or part by Beastie Boys or Brooklyn Dust Music; (c) from using the names, voices, and trademarks of Plaintiffs for the purposes of advertising and trade purposes, in any manner; and (d) from suggesting a false endorsement of Monster’s products by the Beastie Boys.” Id. Ex. A. The Court postponed further briefing on that motion pending resolution of Monster’s post-trial motions. Dkt. 167. On January 16, 2015, Monster filed its opposition to the Beastie Boys’ motion. Dkt. 188. There, Monster argued that the Beastie Boys have not satisfied the elements required to obtain a permanent injunction or, in the alternative, that the scope of the injunction should be limited to • the infringing Ruckus video. See id. On January 30, 2015, the Beastie Boys-submitted their reply. Dkt. 197. II. Applicable Legal Standards The Copyright Act provides that courts “may” grant injunctive relief “on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” 17 U.S.C. § 502(a). The Lanham Act similarly provides that courts “shall have power to grant injunctions, according to the principles of equity and upon such terms as the court may deem reasonable, to prevent the violation of any right of the registrant of a mark.” 15 U.S.C. § 1116(a). An injunction, however, is not mandatory and does not automatically fol low a determination that a copyright or trademark has been infringed. eBay Inc. v." }, { "docid": "20905453", "title": "", "text": "OPINION & ORDER PAUL A. ENGELMAYER, District Judge: Between May 27 and June 5, 2014, the Court presided over a jury trial in which the hip-hop group the Beastie Boys and affiliated plaintiffs (collectively, the “Beastie Boys”) pursued claims against Monster Energy Company (“Monster”), the beverage company. The jury found in the Beastie Boys’ favor on their claims for copyright infringement in violation of the Copyright Act, 17 U.S.C. § 101 et seq., and false endorsement in violation of the Lan-ham Act, 15 U.S.C. § 1051 et seq. These claims arose out of Monster’s creation and dissemination of a promotional vidéo that, without the Beastie Boys’ knowledge or permission, used portions of five songs composed and recorded by the Beastie Boys as its soundtrack and included textual references to the Beastie Boys and one of its members. Now pending before the Court is the Beastie Boys’ motion for a permanent injunction. The Beastie Boys seek to broadly enjoin Monster from using their music, voices, names, and trademarks in any advertisement or other trade-related content. Monster argues that the Beastie Boys are not entitled to injunctive relief and, in the alternative, that an injunction should be limited to the infringing video at issue in this litigation. For the following reasons, the Court grants the Beastie Boys’ motion for a permanent injunction, but -agrees with Monster that such an injunction must be tightly limited to cover only the infringing video. 1. . Background The Court assumes familiarity with the facts and procedural history of this case, which were detailed in the Court’s December 4, 2014 Opinion resolving Monster’s post-trial motions. See Dkt. 182, reported at Beastie Boys v. Monster Energy Co., No. 12 Civ. 6065(PAE), 66 F.Supp.3d 424, 2014 WL 6845860 (S.D.N.Y. Dec. 4, 2014). The background most relevant to the instant motion is summarized below. A. Factual Background As part of its marketing efforts, Monster organizes and sponsors an annual event called the “Ruckus in the Rockies,” which consists of a snowboarding competition and an after-party. Tr. 1092-93. Soon after the 2012 Ruckus, Monster employees created a recap video with highlights" }, { "docid": "20905465", "title": "", "text": "testified, emphatically, that, “since the beginning,” they have refused to license their music for product advertisements because they view such licenses as “a form of selling out.” Tr. 118- 19 (Horovitz); see also Tr. 865 (Diamond). The evidence at trial corroborated that claim. The Beastie Boys’ manager testified that, with one arguable exception, the Beastie Boys had never authorized use of their music or names in connection with a product. Tr. 275 (Silva). The Beastie Boys’ extensive licensing history, which was received into evidence at trial, similarly demonstrated that, although the Beastie Boys have licensed their music for use in television programs, motion pictures, movie trailers, and video games, they have never done so for product commercials. See PX 219, PX 220. Beyond the group’s general policy against licensing their music for product advertisements, the surviving band members testified, credibly, that, had they been asked, they would not have granted permission for Monster to use their music in the Ruckus video because they did not want to associate with Monster’s products and disliked the portrayal of women in Monster’s video. Tr. 122 (Horovitz), 876 (Diamond). Under these circumstances, Monster’s exploitation of the Beastie Boys’ works and persona for its own benefit inflicted an intangible, yet very real, injury on plaintiffs. Against their will, the Beastie Boys were forced to associate publicly with, and advance the cause of, a corporation and marketing campaign for which they had evident disdain. As the Second Circuit has held, the “ ‘loss of First Amendment freedoms,’ ” namely, “infringement of the right not to speak, ‘for even minimal periods of time, unquestionably constitutes irreparable injury.’ ” Salinger, 607 F.3d at 81 (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976)); see also Silverstein v. Penguin Putnam, Inc., 368 F.3d 77, 84 (2d Cir.2004) (“[A]n injunction should be granted if denial would amount to a forced license to use the creative work of another.”). It is, further, apparent that the monetary damages awarded by the jury did not capture — or attempt to capture— this injury. The parties agreed here," }, { "docid": "20905456", "title": "", "text": "Tr. 307, 531, 1119-21, 1124-26, 1266; PX 135, PX 142, PX 150, PX 200, PX 270. The description of the video that Monster posted online, and the press releases that Monster and its agents sent to snowboarding magazines and websites, contained additional references to the Beastie Boys. See Tr. 708, 835, 1126-29. “Dozens” of websites posted Monster’s press release verbatim, including the reference to the Beastie Boys. See PX 165; see also, e.g., PX 164, 276. A few weeks later, Monster received a letter from counsel for the Beastie Boys, which stated that Monster did not have permission to use the Beastie Boys’ music in the video. Tr. 1129, 1269. Monster immediately removed the video from its YouTube channel. Tr. 1130. Monster employees later edited the video — replacing the music and removing the references to the Beastie Boys — and then reposted it. Tr. 1130-31,1277. B. Procedural History On August 8, 2012, the Beastie Boys filed suit against Monster. Dkt. 1 (“Compl.”). The Complaint alleged that Monster, without the Beastie Boys’ consent, had used the Beastie Boys’ songs and names in the video, that Monster had thereby sought to associate its products with the Beastie Boys and to convey the group’s endorsement of Monster, and that Monster had posted links to the video on various websites to advertise and promote Monster’s products, events, and corporate goodwill. Compl. ¶¶ 58-68. Based on these allegations, the Beastie Boys brought claims of copyright infringement in violation of the Copyright Act, and false endorsement in violation of the Lanham Act. Id. ¶¶ 70-100, 109-17. On October 4, 2012, Monster filed an Answer. Dkt. 5 (“Answer”). The parties later filed an Amended Complaint and an Amended Answer. Dkt. 91, 98. Very shortly before trial, Monster conceded liability on the copyright infringement claims. See Dkt. 141, at 48; Tr. 91-92. Trial therefore focused on whether the Copyright Act violations had been willful; whether Monster was liable for false endorsement under the Lanham Act and, if so, whether Monster’s conduct had been intentionally deceptive; and the appropriate damages for each claim. Trial began May 27, 2014," }, { "docid": "20905469", "title": "", "text": "As a general proposition, that is surely true, but this generalization gains no traction in the specific context of an injunction not to use the Ruckus video containing the Beastie Boys music and names. Monster long ago conceded that the video infringed the Beastie Boys’ copyrights. And the jury further found that the video violated the Beastie Boys’ trademark rights by falsely implying an endorsement. Monster therefore has no legitimate interest, let alone a First Amendment interest, in further dissemination or use of that video. Cf. Mint, Inc. v. Amad, No. 10 Civ. 9395(SAS), 2011 WL 1792570, at *3 (S.D.N.Y. May 9, 2011) (“As for the balance of hardships, ‘[o]ne who elects to build a business on a product found to infringe cannot be heard to complain if an injunction against continuing infringement destroys the business so elected.’ ” (quoting Windsurfing Int’l, Inc. v. AMF, Inc., 782 F.2d 995, 1003 n. 12 (Fed.Cir.1986)) (alteration in original)). A permanent injunction limited to the infringing Ruckus video would, therefore, protect the Beastie Boys from further injury without imposing any cognizable hardship.on Monster. Finally, as to the fourth factor, a permanent injunction limited to the infringing video would not disserve the public interest. See, e.g., Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 932, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005) (“[W]here an article is ‘good for nothing else’ but infringement, there is no legitimate public interest in its unlicensed availability.” (citation omitted)); Romag Fasteners, Inc. v. Fossil, Inc., 29 F.Supp.3d 85, 97 (D.Conn.2014) (noting that “deception in or misuse of [a] trademark” constitutes “inequitable conduct toward the public”). To the contrary, “the public has a compelling interest in protecting copyright owners’ marketable rights to their work” so as to “encourage[e] the production of creative work.” WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 287 (2d Cir.2012) (citing, inter alia, Golan v. Holder, — U.S.-, 132 S.Ct. 873, 890, 181 L.Ed.2d 835 (2012); Metro-Goldwym-Mayer Studios, 545 U.S. at 961, 125 S.Ct. 2764). In light of this analysis, the Beastie Boys are clearly entitled to a permanent injunction that prohibits Monster from any" }, { "docid": "20905459", "title": "", "text": "59 or for a reduction of the jury’s damages awards. Dkt. 168-70. On December 4, 2014, after briefing and argument, the Court denied Monster’s motion, finding that the evidence presented at trial was sufficient to support the jury’s verdict. Dkt. 182 (“December 4, 2014 Opinion”).' The Court held, in relevant part, that there was evidence on which a reasonable jury could find that Monster had falsely implied that the Beastie Boys had endorsed Monster and its products— in particular, by using the Beastie Boys’ music prominently throughout the video and by using the Beastie Boys’ names both in the video and in materials promoting the video. Id. at 40-42. The Court also held that the jury’s finding that Monster had intended to deceive customers to believe the Beastie Boys had endorsed the company had a sufficient basis in the trial evidence and reasonable inferences therefrom. Id. at 55-60. Applying the eight-factor balancing test set out in Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d Cir.1961), the Court also held that the evidence supported the verdict that the video was likely to cause consumer confusion, in part because the Beastie Boys are popular among Monster’s target demographic, and because energy drinks are typically purchased on impulse rather than after careful consideration. Dkt. 182, at 52-55. On June 27, 2014, shortly after trial concluded, the Beastie Boys moved for a permanent injunction, based on the liability findings on the Copyright Act and Lan-ham Act claims. Dkt. 165. Specifically, the Beastie Boys sought to permanently enjoin Monster: “(a) from using, distributing, or promoting” the Ruckus video; “(b) from using, distributing, or promoting any advertising which includes or uses, without plaintiffs’ consent, any copyrighted musical work or sound recording owned or controlled in whole or part by Beastie Boys or Brooklyn Dust Music; (c) from using the names, voices, and trademarks of Plaintiffs for the purposes of advertising and trade purposes, in any manner; and (d) from suggesting a false endorsement of Monster’s products by the Beastie Boys.” Id. Ex. A. The Court postponed further briefing on that motion pending resolution of" } ]

[ { "docid": "6042962", "title": "", "text": "remand the action. Eyak Native Village v. Exxon Corp., 25 F.3d 773, 777 (9th Cir.1994). Patterson filed his state court action and served Local 959 on May 11, 1988. That action was automatically stayed as to Local 959, pursuant to 11 U.S.C. § 362, because Local 959 earlier had filed a Chapter 11 bankruptcy petition. In April 1991, Patterson sought permission from the bankruptcy court to proceed with his claim in state court against Local 959. In an order filed March 7, 1994, the bankruptcy court abstained pursuant to 28 U.S.C. § 1334(c)(1) and allowed Patterson to pursue his claim against Local 959 in state court. On March 31,1994, Local 959 removed the action to federal district court, pursuant to 28 U.S.C. § 1446(b). Patterson argues Local 959 did not timely remove the action because it did not file its notice of removal within thirty days after the date it received service of process, back in May 1988. See 28 U.S.C. § 1446(b). Local 959’s notice of removal was filed almost six years after such service. Local 959 argues, however, its notice of removal was timely because it was filed within thirty days of March 7, 1994, the date Patterson obtained relief from the automatic stay. We agree. If an automatic stay is in effect at the time the plaintiff files a state court action (which was the situation here), the thirty-day period for removal does not begin to run until relief is obtained from the automatic stay. See Easley v. Pettibone Michigan Corp., 990 F.2d 905, 908-09 (6th Cir.1993). A contrary rule would require a debtor to expend limited resources and to continue to litigate a claim as if no stay were in place. Cf. In re Schwartz, 954 F.2d 569, 571-72 (9th Cir.1992). If a debtor were forced to continue to litigate the claim, the purposes underlying the automatic stay would be thwarted. Id. Thus, the district court did not err in denying Patterson’s motion to remand. B. Duty of Fair Representation Patterson next argues the district court erred by granting Local 959’s summary judgment motion on his" } ]

[ { "docid": "2824477", "title": "", "text": "to settle this case, and that[,] if mediation were to be produetive[,] an ‘opening offer’ of policy limits would be required.” Motion at 19. They argue that “[s]ection 1446(b)(3) provides that ‘notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case in one which is or has become removable,” and that several months passed between AMCO Insurance gaining this knowledge and it filing removal. Motion at 19. The Plaintiffs conclude their Motion by requesting fees and costs associated with filing the “objectively unreasonable” removal. Motion at 20-21 (citing 28 U.S.C. § 1447(c)). AMCO Insurance responded to the Motion less than two weeks later. See Defendant’s Response to Plaintiffs Motion to Remand, filed June 10, 2014 (Doc. 15) (“Response”). After some unusually colorful opening language, AMCO Insurance characterized the statutory bad-faith exception to the one-year removal rule: “The amendment standardized an inconsistency among circuits, as the majority already applied an equitable exception to the one-year requirement and allowed removal after a year where plaintiffs had acted in bad faith to defeat diversity.” Response at 2 (citing Wilson v. Gen. Motors Corp., 888 F.2d 779, 781 (11th Cir.1989); Barnett v. Sylacauga Autoplex, 973 F.Supp. 1358 (N.D.Ala.1997); Kinabrew v. Emco-Wheaton, Inc., 936 F.Supp. 351, 351 nn. 1-2 (M.D.La.1996)). It asserts that the amendment represents “a legislative recognition that ‘[sjtrict application of the one-year limit would encourage plaintiffs to join nondiverse defendants for 366 days simply to avoid federal court, thereby undermining the very purpose of diversity jurisdiction.’ ” Response at 2 (alteration in Response)(quoting Tedford v. Warner-Lambert Co., 327 F.3d 423, 427 (5th Cir.2003) (“Tedford”)). AMCO Insurance also contends that, whatever bad faith means in this context, it cannot be the case that the Court must rely on the Plaintiffs’ own representation about the purposes behind their actions. See Response at 4 & n. 1 (citing Forth v. Diversey Corp., No. CIV 13-0808 A, 2013 WL 6096528, at *3 (W.D.N.Y. Nov. 20, 2013)" }, { "docid": "2824574", "title": "", "text": "Courts of Appeals to conclude that the one-year limitation was procedural limited the consequences of that holding to situations where the plaintiff failed to timely move to remand after the defendant’s post-one-year removal. The Fifth Circuit went a step further, reasoning that a party’s inequitable conduct could constitute a pseudo-waiver just as easily as his or her consent could. In Tedford, Tedford, a resident of Eastland County, Texas, filed suit with Maria Castro, a resident of Johnson County, Texas, against Warner-Lambert and others. The original petition, filed in Johnson County, named only one nondiverse defendant, Dr. Stan Johnson. In Texas, venue lies in the county in which all or substantially all of the events giving rise to the action occurred or in the defendant’s home county. The original petition did not state whom Dr. Johnson treated, but was drafted to suggest that he treated both plaintiffs in Johnson County. Through venue-related discovery, Warner-Lambert learned that Dr. Johnson treated Castro (who had yet to suffer any injury from Rezu-lin) but not Tedford. In fact, Tedford’s claims have no connection to Dr. Johnson or Johnson County. Upon Warner-Lambert’s motion, the state court severed Tedford’s claims and transferred her suit to Eastland County. Prior to entry of the state court’s order, Warner-Lambert informed Ted- ford of its intent to remove the suit to federal court on the ground of diversity of citizenship because Dr. Johnson was not a proper defendant. A mere three hours later, Tedford amended her petition to name her treating physician, Dr. Robert DeLuca, a resident of Eastland County, as a defendant. Warner-Lambert removed the action, asserting that both Johnson and DeLuca were fraudulently joined. The district court granted Tedford’s motion to remand to state court. The parties then entered into an agreement pursuant to Rule 11 of the Texas Rules of Civil Procedure to try the case in Eastland County state court and. to a preferential trial setting. De-Luca filed a motion to abate the proceedings for sixty days because of Ted-ford’s failure to give proper notice under Texas Medical Liability and Insurance Improvement Act. Without taking any discovery" }, { "docid": "1757689", "title": "", "text": "to federal court. Second, a bankruptcy stay is a creature of federal law that stays all action in any court, state or federal. See 11 U.S.C. § 362(a)(1) (West 2000). The scope of the bankruptcy stay is broad because the purpose of the stay is to provide the bankrupt breathing room in which to reorganize, and that purpose is infringed if actions can be commenced in any court. See Easley, 990 F.2d at 910. The state appellate court’s stay, however, only stayed “all proceedings in trial court cause number 99-22894, styled Value Recovery Group, Inc. v. Monzer Hourani, Individually and d/b/a Medis-tar, et al.” See April 4, 2000, Order in In re Hourani, No. 14-00-00325-CV, Order (Tex.App. — Houston [14th Dist.]) (Exhibit 1 to Removing Defendants’ Response to Plaintiffs Motion to Remand [Docket Entry No. 31]). The order operates only to stay “proceedings” in the state trial court action; it does not enjoin or prohibit the parties to the action from filing papers elsewhere. Although the Removing Defendants may have been precluded from taking action in the state trial court case, the state court’s stay order did not bar defendants from removing the case to this court. Nor have the Removing Defendants presented any authority that an order of a state court can extend the time for removing a case to federal court. As a general rule, the time to remove may not be extended by an order of the state court extending related deadlines under state law. See Sunbeam Corp. v. Brazin, 138 F.Supp. 723 (E.D.Ky.1956). The Removing Defendants also argue that the thirty-day period may be equitably tolled. See Defendants’ Response to Plaintiffs Motion to Remand, pp. 5-6 (Docket Entry No. 31). However, the court concludes that even if equitable tolling of the removal period were proper in some cases, the Removing Defendants are not entitled to equitable tolling in this case. The Removing Defendants waited to see how the state appellate court would rule on their petition for writ of mandamus and then removed to this court when the appellate court denied them relief. . Litigants should" }, { "docid": "23244501", "title": "", "text": "one-year limit in § 1466(b). Conversely, the defendants have vigilantly sought to try this case in federal court. Each time it became apparent that the right to remove existed, Warner-Lambert sought to exercise that right. In fact, the first time Warner-Lambert sought to remove the case it notified Tedford as a professional courtesy. Tedford, knowing that the motion would be successful if Johnson remained the sole nondiverse defendant, quickly acted to thwart Warner-Lambert’s efforts. Tedford complains that Warner-Lambert’s active participation in state court proceedings by moving to transfer venue to Eastland County, by moving for entry of a confidentiality order, by moving to consolidate under Texas Rule of Civil Procedure 11, and by filing special exceptions waived its right to remove the cause. A waiver of the right to remove must be clear and unequivocal; the right to removal is not lost by participating in state court proceedings short of seeking an adjudication on the merits. Nothing Warner-Lambert did, including agreeing to a trial date in Eastland County before it learned of the DeLuca nonsuit, submitted the cause to adjudication on the merits. The authority cited by Tedford is not persuasive, for in each of those cases the defendant moved to dismiss the suit. Accordingly, we find that Warner-Lambert did not waive its right to remove. Conclusion Where a plaintiff has attempted to manipulate the statutory rules for determin ing federal removal jurisdiction, thereby preventing the defendant from exercising its rights, equity may require that the one-year limit in § 1446(b) be extended. The facts of this case present just such a circumstance. We affirm the district court’s denial of Tedford’s motion to remand to state court, and we remand the case to the district court for further proceedings. AFFIRMED. . See Tex. Civ Prac. & Rem.Code Ann. § 15.002(a) (Vernon 2002). . See TexRev.Civ. Stat. Ann. art. 4590Í, § 4.01(a) & (b) (Vernon 2003) (requiring a plaintiff to provide a medical provider with 60 days’ notice of her intent to file a medical malpractice action). . But see Burns v. Windsor Ins. Co., 31 F.3d 1092, 1097 n. 12" }, { "docid": "2824575", "title": "", "text": "have no connection to Dr. Johnson or Johnson County. Upon Warner-Lambert’s motion, the state court severed Tedford’s claims and transferred her suit to Eastland County. Prior to entry of the state court’s order, Warner-Lambert informed Ted- ford of its intent to remove the suit to federal court on the ground of diversity of citizenship because Dr. Johnson was not a proper defendant. A mere three hours later, Tedford amended her petition to name her treating physician, Dr. Robert DeLuca, a resident of Eastland County, as a defendant. Warner-Lambert removed the action, asserting that both Johnson and DeLuca were fraudulently joined. The district court granted Tedford’s motion to remand to state court. The parties then entered into an agreement pursuant to Rule 11 of the Texas Rules of Civil Procedure to try the case in Eastland County state court and. to a preferential trial setting. De-Luca filed a motion to abate the proceedings for sixty days because of Ted-ford’s failure to give proper notice under Texas Medical Liability and Insurance Improvement Act. Without taking any discovery from DeLuca, Tedford signed and post-dated a Notice of Nonsuit before the one-year anniversary of the commencement of her action, but did not notify Warner-Lambert of the DeLuca nonsuit until after the expiration of the anniversary. Soon after learning of the DeLuca nonsuit and ten days after the expiration of the one-year limit on removal on the basis of diversity of citizenship, Warner-Lambert once again removed the suit to federal court. Tedford moved to remand, claiming the one-year limit barred the removal. Warner-Lambert argued that Tedford’s pattern of forum manipulation — particularly her eleventh-hour joinder and then nonsuit of Dr. DeLu-ca — justified application of an equitable exception to the one-year limit on removal. The district judge agreed, denied Tedford’s motion to remand, and certified the issue for interlocutory appeal. 327 F.3d at 424-25 (footnotes omitted). The Fifth Circuit, in an opinion that the Honorable Thomas M. Reavley, United States Circuit Judge, authored and in which the Honorable E. Grady Jolly and Edith H. Jones, United States Circuit Judges, joined, affirmed the district court’s application" }, { "docid": "2824579", "title": "", "text": "limited exception, authorizing district courts to permit removal after the 1-year period if the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action. In 1988, Congress amended this statute to prohibit the removal of diversity cases more than one year after their commencement. This change was intended to encourage prompt determination of issues of removal in diversity proceedings, and it sought to avoid the disruption of state court proceedings that might occur when changes in the case made it subject to removal. The change, however, led some plaintiffs to adopt removal-defeating strategies designed to keep the case in state court until after the 1-year deadline passed. In those situations, some courts have viewed the 1-year time limit as “jurisdictional” and therefore an absolute limit on the district court’s jurisdiction. Other courts have viewed the period as “procedural” and therefore subject to equitable tolling (e.g., Tedford v. Warner-Lambert Co., 327 F.3d 423 (5th Cir.2003)). In light of some ambiguity in the case law (compare Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (rejecting equitable tolling) with Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (accepting such tolling)), inclusion of statutory language to resolve the conflict is appropriate. Proposed paragraph 1446(c)(1) grants district court judges discretion to allow removal after the 1-year limit if they find that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action. The inclusion in the new standard of the phrase “in order to prevent a defendant from removing the. action” makes clear that the exception to the bar of removal after one year is limited in scope. Report to the Committee on the Judiciary of the United States House of Representatives § 103, at 15, H.R. 112-10 (2011). The other cases cited, besides Tedford, have nothing to do with removal; they are cases in which the Supreme Court discussed equitable tolling of different statutory time periods. The legislative history establishes that Congress intended to spread the Fifth" }, { "docid": "2824576", "title": "", "text": "from DeLuca, Tedford signed and post-dated a Notice of Nonsuit before the one-year anniversary of the commencement of her action, but did not notify Warner-Lambert of the DeLuca nonsuit until after the expiration of the anniversary. Soon after learning of the DeLuca nonsuit and ten days after the expiration of the one-year limit on removal on the basis of diversity of citizenship, Warner-Lambert once again removed the suit to federal court. Tedford moved to remand, claiming the one-year limit barred the removal. Warner-Lambert argued that Tedford’s pattern of forum manipulation — particularly her eleventh-hour joinder and then nonsuit of Dr. DeLu-ca — justified application of an equitable exception to the one-year limit on removal. The district judge agreed, denied Tedford’s motion to remand, and certified the issue for interlocutory appeal. 327 F.3d at 424-25 (footnotes omitted). The Fifth Circuit, in an opinion that the Honorable Thomas M. Reavley, United States Circuit Judge, authored and in which the Honorable E. Grady Jolly and Edith H. Jones, United States Circuit Judges, joined, affirmed the district court’s application of an “equitable exception” to the one-year limitation; 327 F.3d at 426-28. The opinion’s reasoning was sparse, and it focused exclusively on whether the one-year limitation should be subject to an equitable exception and not on what the exception should entail. The opinion did not define the exception’s scope or suggest relevant factors to its application. The Fifth Circuit remained the only Circuit to endorse the equitable exception, and only three district courts outside the Fifth Circuit applied the exception and refused to remand a case on bad-faith grounds. See Lafazia v. Ecolab, Inc., No. 06-0491 ML, 2006 WL 3613771 (D.R.I. Dec. 11, 2006); Rauch v. Rauch, 446 F.Supp.2d 432 (D.S.C.2006); In re Rezulin Prods. Liab. Litig., MDL No. 1348, 2003 WL 21355201 (S.D.N.Y. June 4, 2003). Thirteen district court opinions within the Fifth Circuit denied remand on bad-faith grounds, but none of those appear to set forth a. detailed framework for applying the exception. The Fifth Circuit has not come back to the so-called Tedford exception, either before or after the JVCA’s passage. One" }, { "docid": "2824580", "title": "", "text": "Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (rejecting equitable tolling) with Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (accepting such tolling)), inclusion of statutory language to resolve the conflict is appropriate. Proposed paragraph 1446(c)(1) grants district court judges discretion to allow removal after the 1-year limit if they find that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action. The inclusion in the new standard of the phrase “in order to prevent a defendant from removing the. action” makes clear that the exception to the bar of removal after one year is limited in scope. Report to the Committee on the Judiciary of the United States House of Representatives § 103, at 15, H.R. 112-10 (2011). The other cases cited, besides Tedford, have nothing to do with removal; they are cases in which the Supreme Court discussed equitable tolling of different statutory time periods. The legislative history establishes that Congress intended to spread the Fifth Circuit’s emerging Tedford doctrine across all twelve Courts of Appeals, rather than codify or expand fraudulent joinder, abrogate the voluntary-involuntary rule, or advance any other end that the text, read in isolation, could be construed to further. Importantly, it also establishes that bad-faith joinder exists at all: § 1446(c)(3)(B) provides that, “[i]f the notice of removal is filed more than 1 year after commencement of the action and the district court finds that the plaintiff deliberately failed to disclose the actual amount in controversy to prevent removal, that finding shall be deemed bad faith under paragraph (1).” 28 U.S.C. § 1446(c)(3)(B). Looking at § 1446(c)’s text alone, one could also reasonably conclude that the bad-faith exception can be triggered only by obfuscating the amount in controversy and not by improperly joining a spoiler. Because Ted-ford had nothing to do with the amount-in-controversy requirement, the legislative history establishes that “bad faith,” as used in § 1446(c)(1), has a meaning that includes, but goes beyond, the situation outlined in § 1446(c)(3)(B). 2. The Court Interprets “Bad Faith”" }, { "docid": "23244495", "title": "", "text": "County, Texas, against Warner-Lambert and others. The original petition, filed in Johnson County, named only one nondiverse defendant, Dr. Stan Johnson. In Texas, venue lies in the county in which all or substantially all of the events giving rise to the action occurred or in the defendant’s home county. The original petition did not state whom Dr. Johnson treated, but was drafted to suggest that he treated both plaintiffs in Johnson County. Through venue-related discovery,’ Warner-Lambert learned that Dr. Johnson treated Castro (who had yet to suffer any injury from Rezulin) but not Tedford. In fact, Tedford’s claims have no connection to Dr. Johnson or Johnson County. Upon Warner-Lambert’s motion, the state court severed Tedford’s claims and transferred her suit to Eastland County. Prior to entry of the state court’s order, Warner-Lambert informed Tedford of its intent to remove the suit to federal court on the ground of diversity of citizenship because Dr. Johnson was not a proper defendant. A mere three hours later, Tedford amended her petition to name her treating physician, Dr. Robert DeLu-ca, a resident of Eastland County, as a defendant. Warner-Lambert removed the action, asserting that both Johnson and DeLuca were fraudulently joined. The district court granted Tedford’s motion to remand to state court. The parties then entered into an agreement pursuant to Rule 11 of the Texas Rules of Civil Procedure to try the case in Eastland County state court and to a preferential trial setting. DeLuca filed a motion to abate the proceedings for sixty days because of Tedford’s failure to give proper notice under Texas Medical Liability and Insurance Improvement Act. Without taking any discovery from DeLu-ca, Tedford signed and post-dated a Notice of Nonsuit before the one-year anniversary of the commencement of her action, but did not notify Warner-Lambert of the De-Luca nonsuit until after the expiration of the anniversary. Soon after learning of the DeLuca non-suit and ten days after the expiration of the one-year limit on removal on the basis of diversity of citizenship, Warner-Lambert once again removed the suit to federal court. Tedford moved to remand, claiming the one-year" }, { "docid": "23244500", "title": "", "text": "after substantial progress has been made in state court.” Congress may have intended to limit diversity jurisdiction, but it did not intend to allow plaintiffs to circumvent it altogether. Strict application of the one-year limit would encourage plaintiffs to join nondi-verse defendants for 366 days simply to avoid federal court, thereby undermining the very purpose of diversity jurisdiction. The facts of this case demonstrate this point. Tedford, a resident of Eastland County, filed a complaint with Castro in Johnson County, despite the fact that neither plaintiff could state a cognizable claim under Texas law against the sole nondi-verse defendant. She amended her complaint to add her own physician hours after learning of Warner-Lambert’s intent to remove. Then, Tedford signed and postdated the Notice of Nonsuit of Dr. DeLuca prior to the expiration of the one-year period, but did not file the document with the court or notify Warner-Lambert until after the one-year anniversary of the filing of the complaint. Equity demands Ted-ford be estopped from seeking to remand the case on the basis of the one-year limit in § 1466(b). Conversely, the defendants have vigilantly sought to try this case in federal court. Each time it became apparent that the right to remove existed, Warner-Lambert sought to exercise that right. In fact, the first time Warner-Lambert sought to remove the case it notified Tedford as a professional courtesy. Tedford, knowing that the motion would be successful if Johnson remained the sole nondiverse defendant, quickly acted to thwart Warner-Lambert’s efforts. Tedford complains that Warner-Lambert’s active participation in state court proceedings by moving to transfer venue to Eastland County, by moving for entry of a confidentiality order, by moving to consolidate under Texas Rule of Civil Procedure 11, and by filing special exceptions waived its right to remove the cause. A waiver of the right to remove must be clear and unequivocal; the right to removal is not lost by participating in state court proceedings short of seeking an adjudication on the merits. Nothing Warner-Lambert did, including agreeing to a trial date in Eastland County before it learned of the DeLuca nonsuit," }, { "docid": "23244497", "title": "", "text": "limit barred the removal. Warner-Lambert argued that Tedford’s pattern of forum manipulation — particularly her eleventh-hour joinder and then non-suit of Dr. DeLuca — justified application of an equitable exception to the one-year limit on removal. The district judge agreed, denied Tedford’s motion to remand, and certified the issue for interlocutory appeal. Discussion Section 1446(b) of Title 28 provides: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1382 of this title more than 1 year after commencement of the action. We have not previously addressed whether the one-year limit of § 1446(b) is absolute or subject to equitable exception. No other circuit court has published an opinion on this issue, and district courts across the country have come to opposite conclusions. We are not, however, completely without guidance. “Time requirements in lawsuits between private litigants are customarily subject to ‘equitable tolling.’ ” Moreover, “the time limit for removal is not jurisdictional; it is merely modal and formal and may be waived.” We applied these principles in Barnes v. Westinghouse Electric Corp. and determined that § 1446(b)’s one-year limit is subject to waiver. In that case, the plaintiff, Mark Barnes, filed an amended petition naming completely diverse defendants, and Westinghouse" }, { "docid": "23244496", "title": "", "text": "DeLu-ca, a resident of Eastland County, as a defendant. Warner-Lambert removed the action, asserting that both Johnson and DeLuca were fraudulently joined. The district court granted Tedford’s motion to remand to state court. The parties then entered into an agreement pursuant to Rule 11 of the Texas Rules of Civil Procedure to try the case in Eastland County state court and to a preferential trial setting. DeLuca filed a motion to abate the proceedings for sixty days because of Tedford’s failure to give proper notice under Texas Medical Liability and Insurance Improvement Act. Without taking any discovery from DeLu-ca, Tedford signed and post-dated a Notice of Nonsuit before the one-year anniversary of the commencement of her action, but did not notify Warner-Lambert of the De-Luca nonsuit until after the expiration of the anniversary. Soon after learning of the DeLuca non-suit and ten days after the expiration of the one-year limit on removal on the basis of diversity of citizenship, Warner-Lambert once again removed the suit to federal court. Tedford moved to remand, claiming the one-year limit barred the removal. Warner-Lambert argued that Tedford’s pattern of forum manipulation — particularly her eleventh-hour joinder and then non-suit of Dr. DeLuca — justified application of an equitable exception to the one-year limit on removal. The district judge agreed, denied Tedford’s motion to remand, and certified the issue for interlocutory appeal. Discussion Section 1446(b) of Title 28 provides: The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter. If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy" }, { "docid": "9706769", "title": "", "text": "imposing independent jurisdictional requirements.” 66 F.3d at 49-50; accord Mackay v. Uinta Dev. Co., 229 U.S. 173, 176, 33 S.Ct. 638, 57 L.Ed. 1138 (1913) (“Removal proceedings are in the nature of process to bring the parties before the United States court.”). In particular, it is well established that the 30-day time limit for removal in the first paragraph of 1446(b) is procedural, McGlinchey v. Hartford Acc. & Indem. Co., 866 F.2d 651, 653 (3d Cir.1989), and that a case may not be remanded for failure to comply with the 30-day time limit absent a timely motion, Air-Shields, 891 F.2d at 64-65. We see no reason in the language or history of § 1446(b) to construe the one-year time limit any differently. Accord Barnes v. Westinghouse Elec. Corp., 962 F.2d 513, 516 (5th Cir.1992) (holding that the one-year limit in section 1446(b) is procedural, not jurisdictional, and is therefore waived if not raised in a timely motion to remand); cf. Tedford v. Warner-Lambert Co., 327 F.3d 423, 426-27 & n. 8 (5th Cir.2003) (discussing Barnes and stating: “Having found the first paragraph of § 1446(b) subject to equitable considerations, we find no reason to depart from this precedent with respect to the second paragraph of § 1446(b)”). First, nothing in the text of the statute suggests that the one-year limit operates differently from the 30-day limit. Neither provision expressly purports to limit federal jurisdiction, and the prohibitive terms of the one-year limit (“except that a case may not be removed”) are no more mandatory than the compulsory terms of the 30-day limit (“[t]he notice of removal ... shall be filed”). Instead, insofar as the one-year limit applies to cases “removed on the basis of jurisdiction conferred by section 1332,” ie., diversity jurisdiction, the statute recognizes that jurisdiction is determined by whether the complaint, as amended, could have been filed in District Court. See also 28 U.S.C. § 1441(a) (“[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed .... ”); Korea Exch., 66 F.3d at 49 (discussing" }, { "docid": "2824578", "title": "", "text": "of the few common features that the Court has identified in surveying the body of Fifth Circuit district court case law applying the Tedford exception is that the courts have viewed it as significant— cutting strongly in favor of finding bad faith — when a plaintiff dismisses a removal spoiler without ever taking discovery from him or her. See generally E. Farish Percy, The Tedford Equitable Exception Per mitting Removal of Diversity Cases After One Year: A Welcome Development or the Opening of Pandora’s Box?, 63 Baylor L.Rev. 146, 179 & n. 220 (2011)(“The Tedford Equitable Exception ”)(cataloguing cases that apply the Tedford exception). Nonetheless, Congress passed the JVCA in 2011, clarifying that the one-year limitation is procedural and creating a bad-faith exception modeled after the Tedford exception. See Law Regarding Removal, Remand, Fraudulent Joinder, Procedural Misjoinder, and Bad Faith Part 5, supra, at 1259-60 (describing the effects of the JVCA on § 1446(c)). The legislative history indicates Congress’ intent: New paragraph 1446(c)(1) adds to the current 1-year limitation on removal of diversity actions a limited exception, authorizing district courts to permit removal after the 1-year period if the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action. In 1988, Congress amended this statute to prohibit the removal of diversity cases more than one year after their commencement. This change was intended to encourage prompt determination of issues of removal in diversity proceedings, and it sought to avoid the disruption of state court proceedings that might occur when changes in the case made it subject to removal. The change, however, led some plaintiffs to adopt removal-defeating strategies designed to keep the case in state court until after the 1-year deadline passed. In those situations, some courts have viewed the 1-year time limit as “jurisdictional” and therefore an absolute limit on the district court’s jurisdiction. Other courts have viewed the period as “procedural” and therefore subject to equitable tolling (e.g., Tedford v. Warner-Lambert Co., 327 F.3d 423 (5th Cir.2003)). In light of some ambiguity in the case law (compare" }, { "docid": "2824573", "title": "", "text": "trial, and limited removal to situations in which the plaintiff voluntarily dismissed the removal-spoiling parties. It was counterbalanced by fraudulent joinder doctrine, which provides that, if a plaintiff truly has no colorable case against a removal-spoiling defendant, the case can be removed notwithstanding the lack of complete diversity — if the fraudulently joined party is still in the case — or the voluntary-involuntary rule — if the fraudulently joined party has been dismissed from the case, d. In the 2000s, the Fifth Circuit Created an Equitable Exception to the One-Year Limitation, and Congress Codifted It in § 1446(c). Before Congress added the bad-faith exception, the Courts of Appeals were split whether the one-year limitation was jurisdictional or procedural. The primary significance of this distinction involved whether the limitation could be waived: if it is jurisdictional, then an action removed after one year in state court would be outside the federal court’s jurisdiction and must be remanded; if it is procedural, then a plaintiff could waive the limitation and elect to stay in federal court. Most Courts of Appeals to conclude that the one-year limitation was procedural limited the consequences of that holding to situations where the plaintiff failed to timely move to remand after the defendant’s post-one-year removal. The Fifth Circuit went a step further, reasoning that a party’s inequitable conduct could constitute a pseudo-waiver just as easily as his or her consent could. In Tedford, Tedford, a resident of Eastland County, Texas, filed suit with Maria Castro, a resident of Johnson County, Texas, against Warner-Lambert and others. The original petition, filed in Johnson County, named only one nondiverse defendant, Dr. Stan Johnson. In Texas, venue lies in the county in which all or substantially all of the events giving rise to the action occurred or in the defendant’s home county. The original petition did not state whom Dr. Johnson treated, but was drafted to suggest that he treated both plaintiffs in Johnson County. Through venue-related discovery, Warner-Lambert learned that Dr. Johnson treated Castro (who had yet to suffer any injury from Rezu-lin) but not Tedford. In fact, Tedford’s claims" }, { "docid": "23244499", "title": "", "text": "removed the case to federal district court within 30 days after the amended petition but over a year after the action had been commenced. The district court denied Barnes’s motion to remand. Over a year later, Barnes filed a motion to reconsider and argued, for the first time, that Westinghouse did not remove the case within one year of the filing of the original complaint. On appeal, we held that Barnes’s failure to timely assert that the removal was procedurally defective under the one-year limit of § 1466(b) waived his opportunity to contest the removal. Section 1446(b) is not inflexible, and the conduct of the parties may affect whether it is equitable to strictly apply the one-year limit. In the present case, Ted- ford timely moved to remand. Nevertheless, we are convinced that if Barnes’s sleeping on his rights justified application of an equitable exception in the form of waiver, Tedford’s forum manipulation justifies application of an equitable exception in the form of estoppel. In enacting § 1446(b), Congress intended to “redue[e] opportunity for removal after substantial progress has been made in state court.” Congress may have intended to limit diversity jurisdiction, but it did not intend to allow plaintiffs to circumvent it altogether. Strict application of the one-year limit would encourage plaintiffs to join nondi-verse defendants for 366 days simply to avoid federal court, thereby undermining the very purpose of diversity jurisdiction. The facts of this case demonstrate this point. Tedford, a resident of Eastland County, filed a complaint with Castro in Johnson County, despite the fact that neither plaintiff could state a cognizable claim under Texas law against the sole nondi-verse defendant. She amended her complaint to add her own physician hours after learning of Warner-Lambert’s intent to remove. Then, Tedford signed and postdated the Notice of Nonsuit of Dr. DeLuca prior to the expiration of the one-year period, but did not file the document with the court or notify Warner-Lambert until after the one-year anniversary of the filing of the complaint. Equity demands Ted-ford be estopped from seeking to remand the case on the basis of the" }, { "docid": "23244502", "title": "", "text": "submitted the cause to adjudication on the merits. The authority cited by Tedford is not persuasive, for in each of those cases the defendant moved to dismiss the suit. Accordingly, we find that Warner-Lambert did not waive its right to remove. Conclusion Where a plaintiff has attempted to manipulate the statutory rules for determin ing federal removal jurisdiction, thereby preventing the defendant from exercising its rights, equity may require that the one-year limit in § 1446(b) be extended. The facts of this case present just such a circumstance. We affirm the district court’s denial of Tedford’s motion to remand to state court, and we remand the case to the district court for further proceedings. AFFIRMED. . See Tex. Civ Prac. & Rem.Code Ann. § 15.002(a) (Vernon 2002). . See TexRev.Civ. Stat. Ann. art. 4590Í, § 4.01(a) & (b) (Vernon 2003) (requiring a plaintiff to provide a medical provider with 60 days’ notice of her intent to file a medical malpractice action). . But see Burns v. Windsor Ins. Co., 31 F.3d 1092, 1097 n. 12 (11th Cir.1994) (\"[C]ongress knew when it passed the one year bar on removal that some plaintiffs would attempt to defeat diversity by fraudulently (and temporarily) joining a non-diverse party. In that case, as long as there is some possibility that a non-diverse joined party could be liable in the action, there is no federal jurisdiction.... [A] plaintiff could defeat jurisdiction by joining a non-diverse party and dismissing him after the deadline. Congress has recognized and accepted that, in some circumstances, plaintiff can and will intentionally avoid federal jurisdiction.”) (dictum). After examining the legislative history, we must respectfully disagree with the Bums court. See infra note 9. . Compare, e.g., Jenkins v. Sandoz Pharms. Corp., 965 F.Supp. 861, 869 (N.D.Miss.1997); Russaw v. Voyager Life Ins. Co., 921 F.Supp. 723, 724-25 (M.D.Ala.1996); Martine v. Nat'l Tea Co., 841 F.Supp. 1421, 1422 (M.D.La. 1993); Hedges v. Hedges Gauging Serv., Inc., 837 F.Supp. 753, 755 (M.D.La. 1993); Cofer v. Horsehead Research & Dev. Co., 805 F.Supp. 541, 544 (E.D.Tenn.1991) (concluding that the plain language of the statute and its" }, { "docid": "23244494", "title": "", "text": "REAVLEY, Circuit Judge: Jeretta Kay Tedford sued Warner-Lambert Co., the maker of the pharmaceutical Rezulin, in a Texas court. Tedford took Rezulin to treat her Type-2 diabetes and alleges that the drug caused her liver to fail. One year and ten days after Tedford filed suit, Warner-Lambert removed the action to federal court. Convinced that Tedford had engaged in forum manipulation, the district court denied Tedford’s motion to remand despite the removal statute’s requirement that all cases not initially removable be removed within a year of commencement of the action. See 28 U.S.C. § 1446(b) (2003). The district court certified this interlocutory appeal so that we may determine whether equitable exception to the one-year limit on removal is allowed, and, if so, whether an exception should be applied in this case. We conclude that the statute’s one-year limit on removal is subject to equitable exception, and . that the district court’s application of such an exception was appropriate. Background Tedford, a resident of Eastland County, Texas, filed suit with Maria Castro, a resident of Johnson County, Texas, against Warner-Lambert and others. The original petition, filed in Johnson County, named only one nondiverse defendant, Dr. Stan Johnson. In Texas, venue lies in the county in which all or substantially all of the events giving rise to the action occurred or in the defendant’s home county. The original petition did not state whom Dr. Johnson treated, but was drafted to suggest that he treated both plaintiffs in Johnson County. Through venue-related discovery,’ Warner-Lambert learned that Dr. Johnson treated Castro (who had yet to suffer any injury from Rezulin) but not Tedford. In fact, Tedford’s claims have no connection to Dr. Johnson or Johnson County. Upon Warner-Lambert’s motion, the state court severed Tedford’s claims and transferred her suit to Eastland County. Prior to entry of the state court’s order, Warner-Lambert informed Tedford of its intent to remove the suit to federal court on the ground of diversity of citizenship because Dr. Johnson was not a proper defendant. A mere three hours later, Tedford amended her petition to name her treating physician, Dr. Robert" }, { "docid": "2824577", "title": "", "text": "of an “equitable exception” to the one-year limitation; 327 F.3d at 426-28. The opinion’s reasoning was sparse, and it focused exclusively on whether the one-year limitation should be subject to an equitable exception and not on what the exception should entail. The opinion did not define the exception’s scope or suggest relevant factors to its application. The Fifth Circuit remained the only Circuit to endorse the equitable exception, and only three district courts outside the Fifth Circuit applied the exception and refused to remand a case on bad-faith grounds. See Lafazia v. Ecolab, Inc., No. 06-0491 ML, 2006 WL 3613771 (D.R.I. Dec. 11, 2006); Rauch v. Rauch, 446 F.Supp.2d 432 (D.S.C.2006); In re Rezulin Prods. Liab. Litig., MDL No. 1348, 2003 WL 21355201 (S.D.N.Y. June 4, 2003). Thirteen district court opinions within the Fifth Circuit denied remand on bad-faith grounds, but none of those appear to set forth a. detailed framework for applying the exception. The Fifth Circuit has not come back to the so-called Tedford exception, either before or after the JVCA’s passage. One of the few common features that the Court has identified in surveying the body of Fifth Circuit district court case law applying the Tedford exception is that the courts have viewed it as significant— cutting strongly in favor of finding bad faith — when a plaintiff dismisses a removal spoiler without ever taking discovery from him or her. See generally E. Farish Percy, The Tedford Equitable Exception Per mitting Removal of Diversity Cases After One Year: A Welcome Development or the Opening of Pandora’s Box?, 63 Baylor L.Rev. 146, 179 & n. 220 (2011)(“The Tedford Equitable Exception ”)(cataloguing cases that apply the Tedford exception). Nonetheless, Congress passed the JVCA in 2011, clarifying that the one-year limitation is procedural and creating a bad-faith exception modeled after the Tedford exception. See Law Regarding Removal, Remand, Fraudulent Joinder, Procedural Misjoinder, and Bad Faith Part 5, supra, at 1259-60 (describing the effects of the JVCA on § 1446(c)). The legislative history indicates Congress’ intent: New paragraph 1446(c)(1) adds to the current 1-year limitation on removal of diversity actions a" }, { "docid": "2824478", "title": "", "text": "majority already applied an equitable exception to the one-year requirement and allowed removal after a year where plaintiffs had acted in bad faith to defeat diversity.” Response at 2 (citing Wilson v. Gen. Motors Corp., 888 F.2d 779, 781 (11th Cir.1989); Barnett v. Sylacauga Autoplex, 973 F.Supp. 1358 (N.D.Ala.1997); Kinabrew v. Emco-Wheaton, Inc., 936 F.Supp. 351, 351 nn. 1-2 (M.D.La.1996)). It asserts that the amendment represents “a legislative recognition that ‘[sjtrict application of the one-year limit would encourage plaintiffs to join nondiverse defendants for 366 days simply to avoid federal court, thereby undermining the very purpose of diversity jurisdiction.’ ” Response at 2 (alteration in Response)(quoting Tedford v. Warner-Lambert Co., 327 F.3d 423, 427 (5th Cir.2003) (“Tedford”)). AMCO Insurance also contends that, whatever bad faith means in this context, it cannot be the case that the Court must rely on the Plaintiffs’ own representation about the purposes behind their actions. See Response at 4 & n. 1 (citing Forth v. Diversey Corp., No. CIV 13-0808 A, 2013 WL 6096528, at *3 (W.D.N.Y. Nov. 20, 2013) (“Since it would be extraordinary for a party directly to admit a ‘bad faith’ intention, his motive must of necessity be ascertained from circumstantial evidence.”)). AMCO Insurance also attempts to distinguish what it says is the Plaintiffs’ characterization of its removal argument — that Trujillo was never a proper party to the case — from its actual argument — that Trujillo was improperly maintained as a party all the way until immediately before trial. See Response at 4. AMCO Insurance contends that, “[i]n the roughly one page in which Plaintiffs acknowledge in any way the length of time they kept Trujillo in the case, they provide supposed reasons for dismissing their claims against Trujillo, but they provide no reason whatsoever for their failure to dismiss those claims until the eve of trial.” Response at 4 (emphasis in original). AMCO Insurance asserts that the Plaintiffs’ contention that they only realized that it would be unprofitable to take Trujillo to trial six days before the trial “strains credulity to the breaking point.” Response at 5. AMCO Insurance" } ]

[ { "docid": "20305149", "title": "", "text": "the volume-weighted average undermines O’Loughlin’s opinions. This argument does not help Singleton for two reasons. First, it is the tendency of a communication to affect a decision maker which is relevant, not whether the communication actually had an effect. O’Loughlin posited such a tendency after demonstrating the propensity of reported trades to affect volume-weighted averages, and the propensity of volume-weighted averages to affect indices. Second, if the expert has used reliable methods to assess the data, isolated computational or arithmetic discrepancies affect the weight of the testimony, not its admissibility. See Daubert, 509 U.S. at 595, 113 S.Ct. 2786 (noting that trial courts must focus on experts’ “principles and methodology, not on the conclusions that they generate”). O’Loughlin freely noted that Singleton’s report of July 31, 2000 would not have changed the volume-weighted average. Nevertheless, the jury was free to continue to rely on O’Loughlin’s opinion that the false reports had the tendency or capability to affect the indices. In sum, the district court properly exercised its duties under Rule 702 and Daubert, and did not abuse its discretion in admitting the testimony of Matthew O’Loughlin. Defendants are not entitled to a new trial. V. Valencia says the numerous evidentiary errors in this case deprived her of a fair trial and, cumulatively, mandate a new trial. The government has not responded to this argument. We have previously recognized the so-called cumulative error doctrine under which “an aggregation of non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless errors) can yield a denial of the constitutional right to a fair trial.” United States v. Munoz, 150 F.3d 401, 418 (5th Cir.1998); see United States v. Sepulveda, 15 F.3d 1161, 1195-96 (1st Cir.1993) (explaining the cumulative error doctrine). United States v. Williams, 264 F.3d 561, 572 (5th Cir.2001). A claim of cumulative error is “sui generis;” we evaluate the number and gravity of the errors in the context of the case as a whole. See Sepulveda, 15 F.3d at 1196. To recapitulate our holdings, we have concluded that the government committed non-reversible error in reading the letter of Jeffrey Hornback" } ]

[ { "docid": "23048178", "title": "", "text": "novo.” United States v. Williams, 376 F.3d 1048, 1051 (10th Cir.2004). • “In doing so, we view the evidence in the light most favorable to the government and determine whether a reasonable jury could have found the defendant guilty of the crime beyond a reasonable doubt.” Id. After reviewing the record on appeal, we conclude, as did the district court in denying Pickard’s motions, that the evidence of Pickard’s guilt on both charges was overwhelming. Without recounting that evidence in detail, we note that the testimony of Skinner, combined with the substantial physical evidence, was more than ample to support the convictions. Although Pickard strenuously attacks the veracity of Skinner’s testimony, the jury was clearly entitled to, and indeed did, find Skinner to be a credible witness. Moreover, as previously discussed, there was little, if any, evidence to support Pickard’s own testimony, and the verdicts indicate that the jury reasonably rejected that testimony as incredible. Thus, we conclude the district court properly denied Pickard’s motion for judgment of acquittal. Cumulative error Apperson and Pickard contend they are entitled to a new trial due to cumulative error. Cumulative-error analysis “aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir.1990). “Given that no error occurred in this case, we will not reverse on grounds of cumulative error.” United States v. Muessig, 427 F.3d 856, 866 (10th Cir.2005). Sentencing issues — Apperson a) Pre-Blakely/Booker sentencing issues In his original opening brief, which was filed before the issuance of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) , Ap-person challenged his sentence on three grounds: (1) the district court erred in refusing “to find that [he] played a minor role in the charged offense,” Apperson Br. at 18; (2) the district court" }, { "docid": "20312812", "title": "", "text": "of counsel are not evidence. See id. L Reference to Lopez-Medina’s Request for an Aluminum Drive Line In closing, the prosecutor stated: “Once again, don’t forget, the defendant asked Mr. Fowers for [an] aluminum driveline — remember that — for a truck.” (R. Supp. Vol. I, Doc. 181 at 92.) Lopez-Medina contends this statement constitutes prosecutorial misconduct because Fowers referred to a drive line, not an aluminum drive line. He does not indicate the significance of the word “aluminum” and thus, we can perceive no possible prejudice. In any case, a minor misstatement of fact in closing argument does not constitute prosecutorial misconduct where the evidence of guilt is otherwise strong. See Wilson v. Sirmons, 536 F.3d 1064, 1117 (10th Cir.2008). D. Cumulative Error “A cumulative-error analysis merely aggregates all the errors that indi vidually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” Hooper v. Mullin, 314 F.3d 1162, 1178 (10th Cir.2002) (quotations omitted). Where, as here, a defendant “has faded to establish the existence of multiple non-reversible errors (i.e., harmless errors and plain errors failing to necessitate reversal^,] ... he cannot benefit from the cumulative error doctrine.” United States v. Barrett, 496 F.3d 1079, 1121 (10th Cir.2007), cert. denied, — U.S. —, 128 S.Ct. 1646, 170 L.Ed.2d 359 (2008). AFFIRMED. . During a \"trash run\" police officers \"retrieve trash that has been placed out by the side of the road by a suspect or target residence” to \"look for any evidence of drug use [or] drug distribution.\" (R. Supp. Vol. I, Doc. 184 at 191.) . MSM refers to methylsufonylmethane and is used as a cutting agent for methamphetamine. .Although Lopez-Medina was not named as the lessor on the lease, the landlord/owner of the Layton residence testified at trial that Lopez-Medina lived in the upstairs apartment in July and August 2005. . The transcript reads \"J-E-R-G-E-R-A.” (R. Supp. Vol. I, Doc. 184 at 35.) The government explains the transcript reflects Johnson" }, { "docid": "23539302", "title": "", "text": "Prosecutor’s Closing Argument Given the district court’s apparent decision to forego the Berry analysis and grant the motion for new trial in the “interest of justice,” we must examine the second broad sub-category of Rule 33: whether the district court abused its discretion in granting the motion for new trial on “other grounds.” If the motion is based on any “other grounds,” the trial court is not required to consider the restrictive Berry rules. Rather, “any^ error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial.” WRIGHT, Federal PractiCE & PROCEDURE § 556 (3d ed.2004). As with motions based on newly discovered evidence, “the grant or denial of the motion is entrusted to the sound discretion of the judge, motions for new trial are not favored, and are granted only with great caution.” O’Keefe, 128 F.3d at 898 (reviewing motion for new trial based on alleged Brady violation); but see Wright, § 551 (stating that a motion for new trial based not on newly discovered evidence, but on errors or other grounds “should be neither favored nor disfavored, and the question is only what the interest of justice requires.”). The only “other ground” that Wall asserts entitles him to a new trial is the prosecutor’s comment on his failure to call Ristau and Hartwig to testify. Commenting on a failure to call witnesses generally is not an error, unless the comment implicates the defendant’s right not to testify. See United States v. Sblendorio, 830 F.2d 1382, 1391 (7th Cir.1987). Here, Wall testified on his own behalf; therefore, there was no danger that the prosecutor’s comments would implicate Wall’s privilege against self-incrimination. In reviewing the denial of a motion for new trial, this court has examined alleged improper remarks by the prosecution to determine whether the remarks prejudicially affected the substantial rights of the defendant. See Rasco, 123 F.3d at 228-29; United States v. Cardenas, 778 F.2d 1127, 1130-31 (5th Cir.1985). In determining whether the prosecutor’s remarks affected a defendant’s substantial rights, the trial court should consider (1) the magnitude of the prejudicial" }, { "docid": "9754004", "title": "", "text": "a specific legal error occurred at trial. Nevertheless, the district court’s discretion to grant a new trial, although broad, is not without bounds. Robertson, 110 F.3d at 1118. See FEDERAL PRACTICE AND PROCEdure, supra, § 551 (“The court has discretion in passing on the [new trial] motion, but it should hold in mind the harmless and plain error provisions of Rule 52, and refuse to grant a new trial if the substantial rights of the defendant were not affected.\") (emphasis added) (footnotes omitted). In appropriate instances, we have not hesitated to set aside a trial court’s grant of a new trial in criminal cases. See, e.g., United States v. Logan, 861 F.2d 859 (5th Cir.1988); United States v. Leal, 781 F.2d 1108, 1111 (5th Cir.1986). Absent legal error, for the district court to grant a new trial, it must, in the exercise of its discretion, find either that the absence of Young or Thomas (or both together) resulted in a manifest injustice and that Scroggins would have probably been acquitted if the jury had heard their testimonies, United States v. Sanchez, 969 F.2d 1409, 1414-16 (2d Cir.1992), or that, with the additional testimony, the evidence would “preponderate heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand.” Robertson, 110 F.3d at 1118 (emphasis added) (internal citations omitted). In its analysis, however, the district court “may not reweigh the evidence and set aside the verdict simply because it feels some other result would be more reasonable.” Id. We also emphasize that because we have upheld the district court’s finding that the government did not interfere with Young and Thomas, the case for a new trial must be stronger than if the district court had found governmental interference. The absence of governmental misconduct means that the district court should grant the new trial only if it concludes, in the exercise of its discretion, see United States v. Arroyo, 805 F.2d 589, 599 (5th Cir.1986), either that the jury probably would have acquitted Scroggins with the testimonies of Young or Thomas, rather than simply that" }, { "docid": "9754003", "title": "", "text": "a telephone to call in the news of his breakdown until it was too late.” Id. The Tenth Circuit affirmed the district court, rejecting the government’s argument that “the trial court could not sustain the motion for new trial since the court did not make any finding that the initial denial of a continuance was an ‘abuse of discretion.’ ” Id. The Tenth Circuit stated that “a trial judge is not obliged to review his past trial rulings and make an independent judgment that he himself has ‘abused his discretion’ before granting a new trial.” Id. The Tenth Circuit concluded that the district court had not abused its discretion in granting the new trial, id., even though neither the district court nor the Tenth Circuit pointed to any specific legal error. We therefore remand this case to the district court to consider Scroggins’s motion for new trial in the interest of justice and conclude that the district court may grant a new trial in the interest of justice even if it does not find that a specific legal error occurred at trial. Nevertheless, the district court’s discretion to grant a new trial, although broad, is not without bounds. Robertson, 110 F.3d at 1118. See FEDERAL PRACTICE AND PROCEdure, supra, § 551 (“The court has discretion in passing on the [new trial] motion, but it should hold in mind the harmless and plain error provisions of Rule 52, and refuse to grant a new trial if the substantial rights of the defendant were not affected.\") (emphasis added) (footnotes omitted). In appropriate instances, we have not hesitated to set aside a trial court’s grant of a new trial in criminal cases. See, e.g., United States v. Logan, 861 F.2d 859 (5th Cir.1988); United States v. Leal, 781 F.2d 1108, 1111 (5th Cir.1986). Absent legal error, for the district court to grant a new trial, it must, in the exercise of its discretion, find either that the absence of Young or Thomas (or both together) resulted in a manifest injustice and that Scroggins would have probably been acquitted if the jury had heard" }, { "docid": "743671", "title": "", "text": "spuds with marijuana hoping it would somehow find its way to the right destination 2000 miles away without the knowledge or complicity of the driver. But the jury was not required to infer from Gwathney’s unique position, that he had knowledge of the 335 pounds of marijuana in his trailer. It was simply permitted to draw the most - likely inferences from available evidence. The high value of the marijuana might also, and legitimately, lead a jury to consider it less likely the drugs would be transported without the driver’s knowledge. See Cota-Meza, 367 F.3d at 1222. Our precedent allows a jury to infer the driver of the vehicle has knowledge of drugs contained within it. See United States v. Badilla, 383 F.3d 1137 (10th Cir.2004), overruled on other grounds by Badilla v. United States, 543 U.S. 1098, 125 S.Ct. 1086, 160 L.Ed.2d 1000 (2005) (applying United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)), cert. denied, — U.S. —, 126 S.Ct. 1344, 164 L.Ed.2d 58 (2005); Cota-Meza, 367 F.3d at 1222; United States v. Levario, 877 F.2d 1483, 1485-86 (10th Cir.1989), overruled on other grounds by Gozlon-Peretz v. United States, 498 U.S. 395, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991). On these facts, Gwathney’s custody and control of the truck and trailer fully justifies the permissive instruction given by the court. Certainly, the court did not abuse its discretion by giving Jury Instruction 13. IV. Motion for a New Trial Gwathney filed a motion for a new trial based on his post-trial discovery of a Western Union record showing he had received $921 by wire transfer from Solomon Shaw on May 14, 2004. The district court denied the motion. Gwathney challenges its ruling on appeal. Rule 33 of the Federal Rules of Criminal Procedure authorizes district courts to grant new trials “if required in the interest of justice.” A motion for a new trial based on newly discovered evidence is generally disfavored and “should be ■ granted only with great caution.” United States v. Combs, 267 F.3d 1167, 1176 (10th Cir.2001) (quotation omitted). To" }, { "docid": "22278770", "title": "", "text": "crime, specifically, guns and ammunition. Snype submits that this evidence does not overwhelmingly establish his role as one of the gunmen in the robbery, as the government argued at trial. That is beside the point. The law does not require the prosecution to prove that a defendant played any particular role in a conspiracy. It satisfactorily carries its burden on the participation element of conspiracy if it proves beyond a reasonable doubt that the defendant knew the general criminal purpose of the conspiracy and joined the scheme intending to help it succeed. See United States v. Svoboda, 347 F.3d at 477. Because the totality of admissible evidence overwhelmingly proved Snype’s participation in the charged conspiracy, as well as all other elements of that crime, we conclude that any error in submitting Snype’s marriage certificate to the jury without redaction was clearly harmless. Accordingly, Snype is not entitled to reversal on the ground of plain error. 3. The District Court Acted Within Its Discretion in Denying a New Trial Snype asserts that, even if it was not plain error for the district court to admit the unredacted marriage certificate, it was error to deny his motion to vacate based on post-verdict juror reports that they had inferred a prior conviction from the exhibit’s reference to Fishkill. Rule 33(a) of the Federal Rules of Criminal Procedure states that a trial court “may vacate any judgment and grant a new trial if the interest of justice so requires.” We review a district court’s denial of a Rule 33 motion deferentially and will reverse only for abuse of discretion. See United States v. Rivas, 377 F.3d 195, 199 (2d Cir.2004). We identify no such abuse in this case. As this court has explained, on a Rule 33 motion to vacate, “[t]he ‘ultimate test’ is ‘whether letting a guilty verdict stand would be a manifest injustice.’ ” United States v. Canova, 412 F.3d 331, 349 (2d Cir.2005) (quoting United States v. Ferguson, 246 F.3d 129, 133 (2d Cir.2001)). In other words, “[t]here must be a real concern that an innocent person may have been convicted.”" }, { "docid": "2612214", "title": "", "text": "two or more individually harmless errors has the potential to prejudice a defendant to the same extent as a single reversible error.” United States v. Rosario Fuentez, 231 F.3d 700, 709 (10th Cir.2000). “A cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” United States v. Sarracino, 340 F.3d 1148, 1169 (10th Cir.2003), cert. denied sub nom, 540 U.S. 1131 & 540 U.S. 1133, 124 S.Ct. 1105 & 124 S.Ct. 1109, 157 L.Ed.2d 935 & 157 L.Ed.2d 938 (2004) (internal quotation omitted). “Unless an aggregate harmlessness determination can be made, collective error will mandate reversal, just as surely as will individual error that cannot be considered harmless. The harmlessness of cumulative error is determined by conducting the same inquiry as for individual error-courts look to see whether the defendant’s substantial rights were affected.” Id. However, we evaluate only the effect of matters determined to be error, not the cumulative effect of non-errors. United States v. Rivera, 900 F.2d 1462, 1471 (10th Cir.1990). At best, Harlow can only demonstrate error attributable to the prosecutor’s impermissible vouching for the credibility of three of the witnesses in the form of his introduction of the Rule 35(b) motions and sentence reduction orders and his closing argument. Because we have concluded the instances of vouching did not, together, affect Harlow’s substantial rights, these errors cannot constitute cumulative error. There are no other errors to add. IV. Conclusion For the reasons given, Harlow’s conviction is AFFIRMED. The motion to withdraw John M. Nicholson as counsel for appellant is granted. . On June 30, 2004, Harlow's trial counsel filed a motion for a new trial pursuant to Rule 33(b)(1) of the Federal Rules of Criminal Procedure based on newly discovered evidence. The motion also included defense counsel’s request to withdraw and for the appointment of new counsel on appeal. The district court declined to hear Harlow’s motion for a new trial" }, { "docid": "2953873", "title": "", "text": "reversible error or violation of the defendant’s substantial rights has occurred, but where the district court nonetheless believes that “the interest of justice” requires a new trial. That question has particular significance in this case, as one such scenario might be where a defendant (such as Munoz) establishes that trial counsel’s performance was in some way substandard, although not egregious enough to constitute a Sixth Amendment right-to-counsel violation — i.e., where a defendant shows “ineffective assistance light.” The generic “interest of justice” language in Rule 33’s text, at least at first glance, would appear to permit the grant of a new trial on the basis of perceived unfairness of less than reversible magnitude. Cf. 28 U.S.C. § 2255 (stating that habeas relief may be granted where a sentence.was “imposed in violation of the Constitution or laws of the United States ....”); see also 3 Charles Alan Wright, Federal Practice & Procedure § 552 (3d ed. 2004) (“The grounds for relief are broader under [Rule 33] than under Section 2255. [Rule 33] allows a new trial whenever the interest of justice requires it, while the statutory remedy is limited to grounds that may be raised on collateral attack, and thus for the most part reaches only constitutional defects in the proceedings.”). In one decision, the Eleventh Circuit held that the “interest of justice” is a “broad standard” that may be invoked even where the alleged defect “was not reversible error.” United States v. Vicaria, 12 F.3d 195, 198-99 (11th Cir.1994) (affirming grant of new trial where district court “concluded [in the interest of fairness] that it should have given [a jury] instruction it had declined [to give],” even though such an instruction was not required by law). Similarly, the Fifth Circuit has stated that, under certain conditions, “[a] district court may grant a new trial in the interest of justice even if it does not find that a specific legal error occurred at trial.” United States v. Scroggins, 379 F.3d 233, 256-57 (5th Cir.2004), judgment vacated on other grounds, 543 U.S. 1112, 125 S.Ct. 1062, 160 L.Ed.2d 1049 (2005) (holding that," }, { "docid": "7649928", "title": "", "text": "the third prong of the plain-error test. If it were, as Williamson urges, \"the Government’s burden to establish harmless error beyond a reasonable doubt, our conclusion today might be different.” United States v. Gonzalez-Rodriguez, 621 F.3d 354, 367 (5th Cir.2010). . As with the Sixth Amendment Massiah issue, counsel did not raise the issue at trial. The government has not claimed that Williamson has forfeited the issue for appeal. Consequently, it is contextually before us on plain-error review. It founders on plain-error review’s first prong, and we end our analysis of the issue there. . Federal Rule of Criminal Procedure 33 provides: (a) Defendant’s Motion. Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment. (b) Time to File. (1) Newly Discovered Evidence. Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty. If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case. (2) Other Grounds. Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty. . The government argues that Williams is “very close authority.\" In Williams, however, the district court found that the defendant had no right to counsel for his Rule 33 motion only after considering “the motion as one ... with no appeal pending.” Williams, 1998 WL 786200, at *1; see also id. at *2 (“[A]s we have noted, the right to counsel extends only through the first appeal as of right, and it does not extend to collateral review. At the time Williams’s new trial motion was heard, his direct appeal had been decided and his conviction and sentence had been affirmed.”). In this case, Williamson filed his Rule 33 motion shortly after the Supreme Court remanded the case" }, { "docid": "9753998", "title": "", "text": "that the government did not prevent Thomas from appearing at trial. Jp. Interest of Justice We next consider whether the district court erred by not considering the primary basis of Scroggins’s new trial motion' — 'the interest of justice. We hold that the district court did err in limiting its analysis of the motion to newly discovered evidence and that this error was not harmless to Scroggins. We also reject the government’s argument that the district court may not grant the new trial motion absent an identifiable legal error and hold that the existence of a specific legal error is not always required to grant a motion for new trial in the interest of justice. a. Proper Standard for Analyzing New Trial Motion Because Scroggins filed his motion for new trial within the time authorized by Rule 33(b)(2), his motion could have been properly grounded on any reason for which a new trial could be granted and was not required to be limited to newly discovered evidence. Scroggins based his motion on the interest of justice and not expressly upon newly discovered evidence. Therefore, the district court erred in limiting its analysis of the motion, and the exercise of its discretion, to newly discovered evidence while not considering the primary basis of Scroggins’s motion— the interest of justice. Further, the district court’s failure to analyze the motion based on the interest of justice was not harmless to Scroggins. In contrast to motions made within the seven-day period, new trial motions based on newly discovered evidence are subjected “to an unusually stringent substantive test.” United States v. Ugalde, 861 F.2d 802, 808 (5th Cir.1988). See also United States v. Rachal, 473 F.2d 1338, 1343 (5th Cir.1973) (recognizing “the heavier burden which the movant must carry” in a new trial motion based on newly discovered evidence in contrast to motions “based on other grounds, which must be made within seven days after verdict”); 3 Chaeles ÁLAN WRIGHT, ET AL., FEDERAL PRACTICE AND Procedure § 551 (3d ed. 2004) (“Motions for new trial on the ground of newly discovered evidence are not favored," }, { "docid": "2953871", "title": "", "text": "meaning.” United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir.1989). Nonetheless, from the body of Rule 33 case law, several recurring themes emerge. The paradigmatic use of a Rule 33 motion is to seek a new trial on the ground that “the [jury’s] verdict was against the manifest weight of the evidence.” United States v. Crumb, 187 Fed.Appx 532, 536 (6th Cir.2006); see also United States v. Legette-Bey, 147 Fed.Appx. 474, 486 (6th Cir.2005); United States v. Graham, 125 Fed.Appx. 624, 628 (6th Cir.2005); United States v. Solorio, 337 F.3d 580, 589 n. 6 (6th Cir.2003). Munoz, however, did not move for a new trial on manifest-weight-of-the-evidence grounds. Furthermore, it is widely agreed that Rule 33’s “interest of justice” standard allows the grant of a new trial where substantial legal error has occurred. See United States v. Wall, 389 F.3d 457, 474 (5th Cir.2004) (stating that “any error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial” (quoting 3 Charles Alan Wright, Federal Practice & Procedure § 556 (3d ed.2004))); Kuzniar, 881 F.2d at 470 (stating that Rule 33 relief is available where “the substantial rights of the defendant have been jeopardized by errors or omissions during trial”); United States v. De Miranda, No.2008-20, 2008 WL 5412848, at *3 (D.Vi. Dec. 29, 2008) (stating that Rule 33 relief is available where defendant “show[s] ... reversible error at his trial”). A violation of Munoz’s Sixth Amendment right to effective assistance of counsel clearly meets this standard. See United States v. Bass, 460 F.3d 830, 838 (6th Cir.2006) (acknowledging that defendant may “s[eek] a new trial on the ground that his counsel allegedly rendered ineffective assistance”); accord United States v. Russell, 221 F.3d 615, 619 (4th Cir.2000); United States v. Mojica, 984 F.2d 1426, 1452 (7th Cir.1993); United States v. Sands, 968 F.2d 1058, 1066 (10th Cir.1992); United States v. Brown, 476 F.2d 933, 935 (D.C.Cir.1973). Less clear is whether a district court may grant Rule 33 relief where the verdict is not against the substantial weight of the evidence, and where no" }, { "docid": "2953870", "title": "", "text": "While [the others] might have more z'elevance in a closer case, the reason-for-delay factor will always be critical to the inquiry.” Lowry v. McDonnell Douglas Corp., 211 F.3d 457, 463 (8th Cir.2000); accord United States v. Torres, 372 F.3d 1159, 1163 (10th Cir.2004); Silivanch v. Celebrity Cruises, Inc., 333 F.3d 355, 366 n. 7 (2d Cir.2003); Hosp. del Maestro v. NLRB, 263 F.3d 173, 175 (1st Cir.2001). As we have concluded, this foremost Pioneer consideration favors Munoz. The remaining Pioneer factors are not clearly in favor of the government. Accordingly, we hold the district court did not abuse its discretion in concluding that Munoz’s delay was the result of excusable neglect. B. Merits of Munoz’s Rule 33 Motion 1. Legal Standards a. Rule 33 Standard Rule 33 provides that “[u]pon the defendant’s motion, [a district] court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed. R.Crim.P. 33(a). The rule “does not define ‘interest[] of justice’ and the courts have had little success in trying to generalize its meaning.” United States v. Kuzniar, 881 F.2d 466, 470 (7th Cir.1989). Nonetheless, from the body of Rule 33 case law, several recurring themes emerge. The paradigmatic use of a Rule 33 motion is to seek a new trial on the ground that “the [jury’s] verdict was against the manifest weight of the evidence.” United States v. Crumb, 187 Fed.Appx 532, 536 (6th Cir.2006); see also United States v. Legette-Bey, 147 Fed.Appx. 474, 486 (6th Cir.2005); United States v. Graham, 125 Fed.Appx. 624, 628 (6th Cir.2005); United States v. Solorio, 337 F.3d 580, 589 n. 6 (6th Cir.2003). Munoz, however, did not move for a new trial on manifest-weight-of-the-evidence grounds. Furthermore, it is widely agreed that Rule 33’s “interest of justice” standard allows the grant of a new trial where substantial legal error has occurred. See United States v. Wall, 389 F.3d 457, 474 (5th Cir.2004) (stating that “any error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial” (quoting 3 Charles Alan Wright, Federal Practice & Procedure" }, { "docid": "18147170", "title": "", "text": "therefore harmless. In resolving Mr. Jordan’s appeal on this ground, we decline to address his additional argument that the dying declarations were inadmissible. A. Standard of Review and Rule 33(a) We review the denial of a motion for new trial based on newly discovered evidence for an abuse of discretion, United States v. McCullough, 457 F.3d 1150, 1167 (10th Cir.2006), which occurs when the district court’s decision is “arbitrary, capricious, whimsical, or manifestly unreasonable.” Id. (quotations omitted). “Abuse-of-discretion review ordinarily includes review of any legal conclusions de novo and any factual findings for clear error.” United States v. Ray, 704 F.3d 1307, 1315 (10th Cir.2013); see United States v. Hicks, 779 F.3d 1163, 1170 (10th Cir.2015); United States v. Kieffer, 681 F.3d 1143, 1164 (10th Cir.2012). We will not disturb factual findings “unless they have no basis in the record.” United States v. Martin, 163 F.3d 1212, 1217 (10th Cir.1998). “We defer to a district court’s credibility determinations when reviewing a district court’s findings of fact under a clearly erroneous standard.” United States v. Minjares-Alvarez, 264 F.3d 980, 988 (10th Cir.2001). A credibility determination commands “even greater deference to the trial court’s findings” than do other findings of fact. Anderson v. City of Bessemer, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). We therefore “especially defer” to a district court’s findings on “witnessf ] credibility.” United States v. Ortiz, 25 F.3d 934, 935 (10th Cir.1994); see United States v. Clark, 57 F.3d 973, 977 (10th Cir.1995). Federal Rule of Criminal Procedure 33(a) provides that “[u]pon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” A Rule 33(a) motion may be based on “newly discovered evidence.” Fed.R.Crim.P. 33(b)(1). “A motion for a new trial based on newly discovered evidence is not favorably regarded and should be granted only with great caution.” McCullough, 457 F.3d at 1167 (quotations omitted). To prevail, a defendant must prove: (1) the evidence was discovered after trial, (2) the failure to learn of the evidence was not caused by [his] own lack" }, { "docid": "22169890", "title": "", "text": "felony conviction must be excluded under Federal Rule of Evidence 403, if the defendant offers to stipulate to having a prior felony conviction. We review the trial judge’s conduct of voir dire for abuse of discretion. See United States v. Rasco, 123 F.3d 222, 231 (5th Cir.1997), cert. denied, — U.S. —, 118 S.Ct. 868, 139 L.Ed.2d 765 (1998). If we find an abuse of discretion, then we decide whether or not it constitutes harmless error. Compare United States v. Garcia, 86 F.3d 394, 401 (5th Cir.1996) with United States v. Brown, 897 F.2d 162, 163 (5th Cir.1990). Harmless error is “[a]ny error, defect, irregularity or variance which does not affect substantial rights.” Fed.R.Crim.P. 52(a). It arises when the mistake fails to prejudice the defendant. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508, 519 (1993). Prejudice occurs when the error “ha[s] affected the outcome of the district court proceedings.” Id. The Government bears the burden of showing harmless error. See id. We review the denial of a motion for new trial for abuse of discretion. See Rasco, 123 F.3d at 228. The trial judge grants a new trial only if he does not find harmless error. See id.; 3 Charles Alan Wright, Federal Practice and Procedure § 551 (2d ed.1982). He may weigh the evidence and assess the credibility of the witnesses in reviewing a motion for a new trial. See United States v. Robertson, 110 F.3d 1113, 1117 (5th Cir.1997). However, he must refrain from reweighing the evidence and setting aside the verdict simply because he feels some other result would be more reasonable. See id. at 1118. He may grant a new trial only if he finds the evidence preponderating heavily against the verdict, such that it would be a miscarriage of justice to let the verdict stand. See id. The Government contends that these standards fail to govern here because Munoz made no timely objection to the trial judge’s references to the earlier aggravated robbery conviction. This circumstance, it asserts, entitles him to nothing more than review for plain" }, { "docid": "9753999", "title": "", "text": "justice and not expressly upon newly discovered evidence. Therefore, the district court erred in limiting its analysis of the motion, and the exercise of its discretion, to newly discovered evidence while not considering the primary basis of Scroggins’s motion— the interest of justice. Further, the district court’s failure to analyze the motion based on the interest of justice was not harmless to Scroggins. In contrast to motions made within the seven-day period, new trial motions based on newly discovered evidence are subjected “to an unusually stringent substantive test.” United States v. Ugalde, 861 F.2d 802, 808 (5th Cir.1988). See also United States v. Rachal, 473 F.2d 1338, 1343 (5th Cir.1973) (recognizing “the heavier burden which the movant must carry” in a new trial motion based on newly discovered evidence in contrast to motions “based on other grounds, which must be made within seven days after verdict”); 3 Chaeles ÁLAN WRIGHT, ET AL., FEDERAL PRACTICE AND Procedure § 551 (3d ed. 2004) (“Motions for new trial on the ground of newly discovered evidence are not favored, and are to be granted with caution. It is a mistake to extend this proposition to motions for a new trial because of trial errors or other grounds. Here the motion should be neither favored nor disfavored, and the question is only what the interest of justice requires.”) -(footnote omitted). Moreover, the standard chosen by the district court to analyze a new trial motion will likely have an effect on the exercise of its discretion: “Just as our standard of review shapes our decision in this appeal, the standards that guide a trial court’s Rule 33 analysis shape its review of the trial evidence and the outcome of defendant’s Rule 33 motion.” United States v. Ferguson, 246 F.3d 129, 133 (2d Cir.2001). b. Interest of Justice and Presence of Legal Error A district court may grant a new trial where it “finds that a miscarriage of justice may have occurred at trial.” Robertson, 110 F.3d at 1120 n. 11; see also Ferguson, 246 F.3d at 133 (“[Rule 33] by its terms gives the trial court" }, { "docid": "9882189", "title": "", "text": "reversible error per se. Id. at 542-43. Such “structural” errors are few in number, including errors such as the complete denial of counsel, a biased judge, racial discrimination in the selection of the grand jury, the denial of self-representation, the denial of a public trial, and a defective reasonable doubt instruction. Id. at 543. We also cautioned in Harbin, however, that most errors during a trial do not fall within that category. In particular, we noted that trial errors occurring during the presentation of the ease to the jury are generally amenable to harmless error analysis because they may be quantitatively assessed in the context of the evidence as a whole. Id. at 544. The alleged error in denying a limiting instruction is precisely such a “trial error.” Even assuming that the jury, in the absence of a limiting instruction, used the other acts evidence for an impermissible purpose, we can assess whether the jury beyond a reasonable doubt would have returned the same verdict in light of the other evidence properly before it. Because the impact of that error on the trial is capable of assessment at this stage, and the error did not affect the framework in which trial proceeded or the fundamental integrity of the trial process, it does not require automatic reversal. We have already concluded that the provision of the allegedly improper instruction was harmless error. Finally, Pittman alleges that his sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), as interpreted by United States v. Booker, 375 F.3d 508 (7th Cir.2004). Our decision in Booker has since been affirmed by United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Those cases hold that a defendant has the right to have a jury decide factual issues that will increase the defendant’s sentence. Booker, 125 S.Ct. at 756; United States v. Shearer, 379 F.3d 453, 457 (7th Cir.2004). Specifically, the Supreme Court in Booker made clear that “[a]ny" }, { "docid": "2953874", "title": "", "text": "whenever the interest of justice requires it, while the statutory remedy is limited to grounds that may be raised on collateral attack, and thus for the most part reaches only constitutional defects in the proceedings.”). In one decision, the Eleventh Circuit held that the “interest of justice” is a “broad standard” that may be invoked even where the alleged defect “was not reversible error.” United States v. Vicaria, 12 F.3d 195, 198-99 (11th Cir.1994) (affirming grant of new trial where district court “concluded [in the interest of fairness] that it should have given [a jury] instruction it had declined [to give],” even though such an instruction was not required by law). Similarly, the Fifth Circuit has stated that, under certain conditions, “[a] district court may grant a new trial in the interest of justice even if it does not find that a specific legal error occurred at trial.” United States v. Scroggins, 379 F.3d 233, 256-57 (5th Cir.2004), judgment vacated on other grounds, 543 U.S. 1112, 125 S.Ct. 1062, 160 L.Ed.2d 1049 (2005) (holding that, even “[a]bsent legal error,” district court may still grant a new trial based on two witnesses’ failure to show up and testify, if it resulted in “a manifest injustice” and defendant “would have probably been acquitted” otherwise). Vicaria and Scroggins appear to support the viability of an “ineffective assistance light” claim in the Rule 33 context. There is even a line of cases (albeit somewhat dated) from the District of Columbia Circuit specifically stating that “a more powerful showing of inadequacy [of counsel] is necessary to sustain a collateral attack than to warrant an order for new trial.... ” Bruce v. United States, 379 F.2d 113, 117 (D.C.Cir.1967); see also United States v. Thompson, 475 F.2d 931, 932 n. 3 (D.C.Cir.1973). However, other circuits have refused to recognize “ineffective assistance light” as a viable ground for Rule 33 relief. The Seventh Circuit, for one, stated: [The District of Columbia] Circuit[ ] ... [believes] that a “more powerful” showing of counsel’s inadequacy is necessary to sustain a collateral attack on a conviction than would be necessary" }, { "docid": "21388841", "title": "", "text": "have resulted from a proper charge, would not have meant release. Rather, it would have led to a suitable institution for treatment — the sensible result suggested by jurors in the instant case. See 18 U.S.C. § 4243. A. Defendant’s Rule 33 Motion Should Be Granted Pursuant to Polizzi’s Rule 33 motion, see Def.’s Mot. to Vacate J., Docket Entry No. 123, the verdict on Counts One to Twelve is set aside and defendant is granted a new trial on those counts because he was denied his Sixth Amendment right to trial by an informed jury and because the interest of justice so requires. See Fed.R.Crim.P. 33(a) (“Upon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.”). Federal Rule of Criminal Procedure 33 “confers broad discretion upon a trial court to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.” United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir.1992). “Any error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial.” Charles A. Wright et al., Federal Practice and Procedure: Criminal 3d §§ 530, 556 (2004). Although a Rule 33 motion normally must be filed within seven days of the jury verdict, see Fed.R.Crim.P. 33(b)(2) (“Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 7 days after the verdict or finding of guilty.”), the seven-day rule may be flexibly applied. See Fed.R.Crim.P. 45(b)(1)(B) (“When an act must or may be done within a specified period, the court on its own may extend the time, or for good cause may do so on a party’s motion made ... after the time expires if the party failed to act because of excusable neglect.”). Before the 2005 amendments, the Federal Rules did not permit such extensions of time. See, e.g., Carlisle v. United States, 517 U.S. 416, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996). “By reason of changes to Rules 29, 33, and 45, which" }, { "docid": "8092635", "title": "", "text": "vacate any judgment and grant a new trial if the interest of justice so requires.” “Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.” Fed. R. Crim. P. 33(b)(2). In this case, the defendant failed to timely file a motion for new trial. I may extend the time for filing if the defendant failed to file by the deadline due to excusable neglect. See Fed. R. Crim. P. 45(b)(1). Here, there has been no showing that the defendant’s failure to file a timely motion was the result of excusable neglect. To the contrary, the court had already granted two motions for extensions of time to file a motion for judgment of acquittal, without any indication from the defendant that she also desired to file a motion for a new trial. An extension of time granted only as to a motion for judgment of acquittal does not cover a motion for a new trial. Hoover-Hankerson, 406 F.Supp.2d at 89. The defendant has offered no good reason why she did not also request an extension of time to move for a new trial. “[A] party that fails to act with diligence will be unable to establish that [her] conduct constituted excusable neglect.” Martinez v. United States, 578 Fed.Appx. 192, 194 (4th Cir.2014) (unpublished) (quoting Robinson v. Wix Filtration Corp., 599 F.3d 403, 413 (4th Cir.2010)). The defendant’s motions for new trial are untimely and must be denied on that ground. Nevertheless, even if the court were to consider the defendant’s motions for a new trial on the merits, the motions would not be granted. Courts have “widely agreed that Rule 33’s ‘interest of justice’ standard allows the grant of a new trial where substantial legal error has occurred.” United States v. Munoz, 605 F.3d 359, 373 (6th Cir.2010). “[A]ny error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial.” United States v. Wall, 389 F.3d 457, 474 (5th Cir.2004) (quoting 3 Charles Alan Wright et" } ]

[ { "docid": "7664611", "title": "", "text": "A.L.R.2d 1233, et seq. . Johnson v. United States, 1957, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593; Ellis v. United States, 1958, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060; compare Griffin v. Illinois, 1955, 351 U.S. 12, 18, 76 S.Ct. 385, 100 L.Ed. 891. . See cases collected in Note 150 to 28 U.S.C.A. § 2255 and in Note 450 to the U.S.C.A. volume on Amendment 6; compare, however, Campbell v. United States, 7 Cir. 1963, 318 F.2d 874, and United States v. Plattner, 2 Cir. 1964, 330 F.2d 271. It is significant that the Criminal Justice Act of 1964, 78 Stat. 552, 18 U.S.C.A. § 3006A, does not provide for counsel in habeas corpus or section 2255 cases. . “§ 1654. Appearance personally or by counsel “In all courts of the United States the parties may plead and conduct their own cases personally or by counsel, as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.” Title 28 U.S.C.A. This right “to plead and manage their own causes personally” has been in existence since the very First Congress. See United States v. Plattner, 2 Cir. 1964, 330 F.2d 271, 274, citing section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92 (1789). . Butler v. United States, 8 Cir. 1963, 317 F.2d 249, 258; Brown v. United States, 1959, 105 U.S.App.D.C. 77, 264 F.2d 363, 365, 366. Indeed, the court may have some discretion to refuse to permit a defendant to exercise his constitutional right to dispense with a lawyer’s help. As said by Judge Swan: “ * * * an accused’s right to represent himself is not so absolute that it must be recognized when to do so would disrupt the court’s business.” United States v. Private Brands, 2 Cir. 1957, 250 F.2d 554, 557. See, however, United States v. Plattner, 2 Cir. 1964, 330 F.2d 271, 277. . Brown v. United States, 1959, 105 U.S. App.D.C. 77, 264 F.2d 363, 366; Butler v. United States, 8 Cir. 1963, 317 F.2d 249, 258; United States v." } ]

[ { "docid": "8023402", "title": "", "text": "that “if you propose to offer testimony I suggest that you take the oath and witness stand” be error, we deem it to be minor and inconsequential error without prejudice to the appellant, particularly in light of the trial court’s instructions referred to below. The situation here is not unlike that presented to this court in United States v. Warner, 8 Cir., 1970, 428 F.2d 730, cert. denied, 1970, 400 U.S. 930, 91 S.Ct. 194, 27 L.Ed.2d 191. In Warner, after an improper argument by appellant, who was acting pro se, the trial judge said, “I think you should ask questions. If you want to testify later on you may.” Additionally, after an improper closing argument by Warner, the prosecuting attorney said, “Most of what you heard in the closing argument on behalf of Mr. Warner and by Mr. Warner, did you hear it from the witness stand?” True, as Judge Gibson noted in his opinion, 428 F.2d at 738: “Adverse comments by judge or prosecutor upon a defendant's failure to take the stand is a violation of the defendant’s rights under the Fifth Amendment. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).” We agree, however, with the Fifth Circuit wherein it said in Davis v. United States, 5 Cir., 1966, 357 F.2d 438, 441, cert. denied, 1966, 385 U.S. 927, 87 S.Ct. 284, 17 L.Ed.2d 210: “The facts and circumstances of each case must be carefully analyzed to determine ‘whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955); see United States [ex rel. D’Ambrosio] v. Fay, 349 F.2d 957 (2d Cir. 1965).” See United States v. Porter, 8 Cir., 1971, 441 F.2d 1204, 1216, cert. denied United States v. Harrison, 1971, 404 U.S. 911, 92 S.Ct. 38, 30 L.Ed.2d 184; United States v. Lepiscopo, 5 Cir., 1970, 429 F.2d 258, cert. denied, 1970, 400 U.S. 948, 91 S.Ct. 255," }, { "docid": "12803719", "title": "", "text": "Id. Counsel also stated that Soto had refused to telephone counsel. Id. at par. 8. . Before agreeing to accept the waiver of jury trial, the court stated that “if I take it I will probably have to work a little later tonight, because I have some time problems tomorrow that I have to concern myself with.” (N.T. 10). . The Government’s position was widely accepted before Davis. “The lower courts have been virtually unanimous in barring non-constitutional claims on § 2255 motions.” Bator, Mishkin, Shapiro and Weehsler, Hart and Wechsler’s The Federal Courts and the Federal System 1531 n. 8 (2d ed. 1973). Many commentators have read Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), and Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), as limiting § 2255 relief solely to constitutional claims. In Davis, Justice Stewart distinguished Sunal and Ilill on their facts in declaring that there was “no support in prior cases” for limiting § 2255 to constitutional claims. 417 U.S. at 345, 94 S.Ct. 2298. See generally, Developments in the Law — Federal Habeas ‘Corpus, 83 Harv. L.Rev. 1038, 1067-70 (1970). . 28 U.S.C. § 1654 provides: “In all courts of the United States t'..e parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct cases therein.” . See United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1122-1123 (1972) ; Comment, Self-Representation in Criminal Trials: The Dilemma of the Pro Se Defendant, 59 Calif.L.Rev. 1479 (1971) [hereinafter cited as Comment]. . We have not overlooked other federal court decisions stating that the right to proceed pro se is a constitutional right. See United States v. Price, 474 F.2d 1223 (9th Cir. 1973) ; United States v. Warner, 428 F.2d 730 (8th Cir. 1970), cert. denied, 400 U.S. 930, 91 S.Ct. 194, 27 L.Ed.2d 191 (1971) ; Lowe v. United States, 418 F.2d 100 (7th Cir. 1969) ; Juelich v. United States, 342 F.2d 29, 31 (5th Cir." }, { "docid": "5546299", "title": "", "text": "the sanity issue with full knowledge of the consequences. Indeed, the record strongly suggests that Meeks’ choice to try to establish a defense based upon his mental condition was probably the only tactic reasonably available to him. Other points either were not raised in the state trial, or, if raised, present no constitutional question. Affirmed. TRASK, Circuit Judge (concurring). I concur. I am not persuaded that the Constitution of the United States guarantees to a criminal defendant the right to represent himself. Neither do I read Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942), or any other decision of the Supreme Court as holding that it does. Cf. People v. Sharp, 7 Cal.3d 448, 103 Cal.Rptr. 233, 499 P.2d 489, 493-494 (1972). Our court, however, has so held and I yield to those precedents. United States v. Pike, 439 F.2d 695 (9th Cir. 1971); Arnold v. United States, 414 F.2d 1056 (9th Cir. 1969), cert. denied, 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970); Hodge v. United States, 414 F.2d 1040 (9th Cir. 1969). Perhaps the conflict is partially semantic. On the one hand the Supreme Court holds that a defendant may under controlled circumstances, competently and intelligently waive his constitutional right to assistance of counsel. Adams, supra; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). We have held that a defendant may under controlled circumstances, competently and intelligently insist upon a ‘‘constitutional right” to represent himself. Haslam v. United States, 431 F.2d 362 (9th Cir. 1970), cert. denied, 402 U.S. 976, 91 S.Ct. 1680, 29 L.Ed.2d 142, aff’d on rehearing, 437 F.2d 955 (1971) (competent counsel appointed by court to assist in presentation of case); Hodge, supra, 414 F.2d at 1045 (advisory counsel). Our language may be couched in terms of the absolute right of self-representation, Arnold, supra, 414 F.2d at 1058, with which I disagree, but our holdings have been structured along narrower lines more consistent with the directives of the Supreme Court." }, { "docid": "14754083", "title": "", "text": "observed: [t]he right to assistance of counsel and the correlative right to dispense with a lawyer’s help are not legal formalisms. They rest on considerations that go to the substance of an accused’s position before the law. . . [T]he Constitution does not force a lawyer upon a defendant. He may waive his Constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open. However, Adams’s “correlative right” language was not an essential ingredient of its holding, which was simply that a defendant who has intelligently waived his right to counsel may also waive his right to a jury trial. Moreover, in Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965), holding a defendant’s waiver of right to a jury trial subject to the assent of the prosecution and the trial judge, the Court said that “the ability to waive a constitutional right does not ordinarily carry with it the right to insist on the opposite of that right.” 380 U.S. at 34-35, 85 S.Ct. at 789. It pointed out that [t]he Constitution recognizes an adversary system as the proper method of determining guilt, and the Government, as a litigant, has a legitimate interest in seeing that cases in which it believes a conviction is warranted are tried before the tribunal which the Constitution regards as most likely to produce a fair result. Id. at 36, 85 S.Ct. at 790. There are conflicting indications from the circuits. The Second Circuit in United States v. Plattner, 330 F.2d 271 (2d Cir. 1964), recognized constitutional status for the pro se right. In accord with Plattner, see Lowe v. United States, 418 F.2d 100 (7th Cir. 1969), cert. denied 397 U.S. 1048, 90 S.Ct. 1378, 25 L.Ed.2d 660 (1970); United States v. Warner, 428 F.2d 730 (8th Cir. 1970), cert. denied 400 U.S. 930, 91 S.Ct. 194, 27 L.Ed.2d 191 (1971); United States v. Pike, 439 F.2d 695 (9th Cir. 1971); Hodge v. United States, 414 F.2d 1040 (9th Cir. 1969). But compare Juelich v. United States, 342" }, { "docid": "12803720", "title": "", "text": "at 345, 94 S.Ct. 2298. See generally, Developments in the Law — Federal Habeas ‘Corpus, 83 Harv. L.Rev. 1038, 1067-70 (1970). . 28 U.S.C. § 1654 provides: “In all courts of the United States t'..e parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct cases therein.” . See United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1122-1123 (1972) ; Comment, Self-Representation in Criminal Trials: The Dilemma of the Pro Se Defendant, 59 Calif.L.Rev. 1479 (1971) [hereinafter cited as Comment]. . We have not overlooked other federal court decisions stating that the right to proceed pro se is a constitutional right. See United States v. Price, 474 F.2d 1223 (9th Cir. 1973) ; United States v. Warner, 428 F.2d 730 (8th Cir. 1970), cert. denied, 400 U.S. 930, 91 S.Ct. 194, 27 L.Ed.2d 191 (1971) ; Lowe v. United States, 418 F.2d 100 (7th Cir. 1969) ; Juelich v. United States, 342 F.2d 29, 31 (5th Cir. 1965) ; United States v. Plattner, 330 F.2d 271 (2d Cir. 1964). These cases relied on dictum in Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942), stating that the “right to dispense with a lawyer’s help” is “correlative” to “the right to assistance of counsel.” The Court did not, however, say that this “correlative” right is guaranteed by the Constitution. Brown v. United States, 105 U.S. App.D.C. 77, 264 F.2d 363, 365 n. 2 (1959). Moreover, in Singer v. United States, 380 U.S. 24, 34, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965), the Court specifically noted that “the ability to waive a constitutional right [such as counsel] does not ordinarily carry with it the right to insist on the opposite of that right.” We find Singer analogous since the right to counsel, like the right to jury trial, affects the fairness of the trial. See infra. But see Comment, id. at 1488-89. We are not persuaded by the reasoning of the cases finding" }, { "docid": "22600034", "title": "", "text": "have traditionally found a sixth amendment basis for the right to conduct one’s own defense. The Supreme Court early on indicated in dictum that the constitutional right. to have the assistance of counsel carries with it a “correlative right to dispense.with, a lawyer’s help.” Adams v. United States ex rel., McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942). Relying on this dictum, in MacKenna v. Ellis, 263 F.2d 35, 40-41 (5th Cir. 1959), this court declared of a state prisoner, whose petition for habeas obviously could not rest on § 1654, that: [t]he defendant, being sui juris and mentally competent, had a right to rely on his own skill and ability and to conduct his defense in person without the assistance of counsel; and the court was not justified in imposing assigned counsel on the defendant against his will. Subsequently, in Juelich v. United States, 342 F.2d 29, 30 (5th Cir. 1965), we recognized that “this and other Courts of Appeals have deduced that in a criminal prosecution the right to defend pro se is a constitutionally protected right.” See Middlebrooks v. United States, 457 F.2d 657, 659 (5th Cir. 1972) (derision to defend pro se is exercise of defendant’s “freedom of choice”); see also United States v. Pike, 439 F.2d 695 (9th Cir. 1971); United States v. Warner, 428 F.2d 730 (8th Cir. 1970), cert. denied, 400 U.S. 930, 91 S.Ct. 194, 27 L.Ed.2d 191 (1971); Lowe v. United States, 418 F.2d 100 (7th Cir. 1969), cert. denied, 397 U.S. 1048, 90 S.Ct. 1378, 25 L.Ed.2d 660 (1970); Arnold v. United States, 414 F.2d 1056 (9th Cir. 1969), cert. denied, 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970); United States v. Plattner, 330 F.2d 271 (2d Cir. 1964). Second, even had we- not explicitly characterized the right to defend pro se- as a sixth amendment right prior to Faretta, the' constitutional basis of that right should be' retroactively applied at least where the right was independently guaranteed by § .1654. To begin with, the fundamental place of § 1654 in our scheme" }, { "docid": "23210883", "title": "", "text": "Constitution . . .,” United States v. Pike, 439 F.2d 695 (9th Cir. 1971), and “This circuit has recognized a constitutional right to represent oneself, Arnold v. United States, 414 F.2d 1056 (9th Cir. 1969), cert, denied, 396 U.S. 1021, 90 S. Ct. 593, 24 L.Ed.2d 514 (1970), and has recently stated that the complete denial of this right in a federal trial is, per se, reversible error.” Meeks v. Craven, 482 F.2d 465 (9th Cir. 1973). So, whether it be by the design or because of misguidance or naivete on the part of the accused, the trial court lays an appeal or a collateral attack by either a denial or the granting of the request. It is no understatement to say that under the existing authorities in this circuit, the district judge is most likely to be placed in the predicament above described. It may be all due to too easily interpreted generalities or as stated by Judge Trask, concurring, in Meeks, supra, “the conflict is partially semantic.” In any event, the rule of the right of self-representation flows from the two founts of Adams v. United States, ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942), and Johnson v. Zerbst, 304 U.S. 458, at 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). We read the rationale of these authorities to be: An accused has the constitutional right to be represented in a criminal ease by competent counsel and the correlative constitutional right to dispense with counsel and assume the management and control of his defense to a criminal charge pro se. This circuit has from case to case as noted above applied that rationale in a progressively narrowing context in order to meet exigencies of the given case. There is no reason to burden this writing with a recital of the specific facts and statement of the rule applied in each case, except to point out that the judicial route has been a torturous one and generally dictated by the facts and circumstances of the given case viewed retrospectively. Hodge v. United States," }, { "docid": "22600035", "title": "", "text": "to defend pro se is a constitutionally protected right.” See Middlebrooks v. United States, 457 F.2d 657, 659 (5th Cir. 1972) (derision to defend pro se is exercise of defendant’s “freedom of choice”); see also United States v. Pike, 439 F.2d 695 (9th Cir. 1971); United States v. Warner, 428 F.2d 730 (8th Cir. 1970), cert. denied, 400 U.S. 930, 91 S.Ct. 194, 27 L.Ed.2d 191 (1971); Lowe v. United States, 418 F.2d 100 (7th Cir. 1969), cert. denied, 397 U.S. 1048, 90 S.Ct. 1378, 25 L.Ed.2d 660 (1970); Arnold v. United States, 414 F.2d 1056 (9th Cir. 1969), cert. denied, 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970); United States v. Plattner, 330 F.2d 271 (2d Cir. 1964). Second, even had we- not explicitly characterized the right to defend pro se- as a sixth amendment right prior to Faretta, the' constitutional basis of that right should be' retroactively applied at least where the right was independently guaranteed by § .1654. To begin with, the fundamental place of § 1654 in our scheme of justice is illustrated by the history of that statute. The precursor of § 1654 was enacted by the First Congress as section 35 of. the Judiciary Act of 1789,1 Stat. 73, 92. It was passed in the context of colonial tribunals composed largely of laymen. Section 35 was enacted by the Congress and signed by President Washington one day before the sixth amendment was proposed. Apart from this constitutional aura surrounding § 1654, moreover, the benign consequences of retroactively recognizing the sixth amendment basis of § 1654 would commend that course to us. Mere prospectivity should be the exception and not the rule, lest such limited application vitiate constitutional rights, privileges, and obligations that may effectively be secured retro actively. Unlike those cases to which the Supreme Court has denied retroactive effect, it cannot be said of Faretta that there has been extensive reliance by law enforcement officers on a different prior standard, nor will the constitutionalization of a right heretofore guaranteed by statute significantly disrupt the administration of justice by reopening otherwise final" }, { "docid": "14754131", "title": "", "text": "Manson v. Pitchess, 317 F.Supp. 816 (C.A.Cal.1970) ; United States v. Davis, 260 F.Supp. 1009 (B.D. Tenn.1966). The Supreme Court has indicated though not held that an accused may be competent to stand trial and yet be incompetent to waive his right to counsel. Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966). The Ninth Circuit apparently does not even recognize that limitation of the pro se right, see United States v. Odom, 423 F.2d 875 (9th Cir. 1970). Such a limitation, if it exists, suggests that there is a point of in-eompetency, short of complete incapacity, where a defendant is able to understand the nature of the charges against him and to assist in the preparation of his defense, yet does not have the capacity to waive counsel and undertake representation of himself. Obviously, appellants intelligently waived their right to counsel. . United States v. Catino, 403 F.2d 491 (2d Cir. 1968), cert. denied, 394 U.S. 1003, 89 S.Ct. 1598, 22 L.Ed.2d 780 (1969) ; United States v. Conder, 423 F. 2d 904 (6th Cir. 1970), cert. denied, 400 U.S. 958, 91 S.Ct. 357, 27 L.Ed.2d 267 (1971) ; Butler v. United States, 317 F.2d 249 (8th Cir.), cert. denied sub nom, Benedec v. United States, 375 U.S. 836, 84 S.Ct. 67, 11 L.Ed.2d 65 (1963) ; Seale v. Hoffman, 306 F.Supp. 330 (N.D.Ill. 1969). As to one of the Government’s precedents, United States v. Private Brands, 250 F.2d 554 (2d Cir. 1957), it has been displaced by United States v. Plattner, supra. . Outside pressures and publicity; the large number of defendants; the nature of the offenses and appellants’ motivations ; appellants’ erroneous view of the nature of a criminal trial and the scope of the evidence which could be entertained there; actual disruptive behavior of defendants before the pro se rulings were made. Government brief, pp. 37-40. . The framers of the Judiciary Act of 1789 and the Sixth Amendment were undoubtedly aware that pro se defendants are likely to say and do things that would constitute manifest irregularities if done by members" }, { "docid": "23210882", "title": "", "text": "Mr. Karas of the public defender’s office sitting in attendance by the direction of the court. The trial court was most patient with the appellant in advising him on procedure and suggestion that the appellant seek the advice of the public defender, which was declined. Issue (a): This issue vividly presents the whip saw position in which the trial court is placed when faced with a request for self-representation. It has been said “[a] defendant in a criminal case not only has a constitutional right to the assistance of counsel, he has a correlative constitutional right to refuse the advice or interference of counsel and to present his own case. A court has no more right to force an attorney on a defendant than it has to ignore the Sixth Amendment right to counsel,” Arnold v. United States, 414 F.2d 1056, 1058 (9th Cir. 1969), cited in United States v. Price, 9 Cir., 474 F.2d 1223 at 1226. “The right to act pro se . . . is a right arising out of the Federal Constitution . . .,” United States v. Pike, 439 F.2d 695 (9th Cir. 1971), and “This circuit has recognized a constitutional right to represent oneself, Arnold v. United States, 414 F.2d 1056 (9th Cir. 1969), cert, denied, 396 U.S. 1021, 90 S. Ct. 593, 24 L.Ed.2d 514 (1970), and has recently stated that the complete denial of this right in a federal trial is, per se, reversible error.” Meeks v. Craven, 482 F.2d 465 (9th Cir. 1973). So, whether it be by the design or because of misguidance or naivete on the part of the accused, the trial court lays an appeal or a collateral attack by either a denial or the granting of the request. It is no understatement to say that under the existing authorities in this circuit, the district judge is most likely to be placed in the predicament above described. It may be all due to too easily interpreted generalities or as stated by Judge Trask, concurring, in Meeks, supra, “the conflict is partially semantic.” In any event, the rule of" }, { "docid": "11313105", "title": "", "text": "and even the Court in Plattner, supra, considered the issue of prejudice, holding that the right of the defendant had been prejudiced by denial of his request to represent himself in that Plattner “quite evidently both intelligent and articulate, would have probed deeper had he been given an opportunity to conduct the cross-examination himself.” [330 F.2d page 277.] In the instant matter, the petitioner is presently on trial and whether he has been or will be prejudiced by the trial court’s order precluding him to defend pro se is not possible of determination at this time. The waiver of right to counsel and the right to defend pro se are closely related matters. In Hodge v. United States, 414 F.2d 1040 (C.A.9 1969), the Court refers to the right of the defendant to waive his right to counsel and to so defend. Some of the leading cases, including Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309, and opinions of the Court of Appeals, 9th Circuit, on this subject, are discussed. [Pages 1042-1043.] At page 1042, the Court states: “Here appellant clearly knew of his right. His ‘waiver’ lay in his assertion of his right to represent himself1 —a right the court could not properly deny. 28 U.S.C. § 1654; Bayless v. United States, 381 F.2d 67, 71 (9th Cir. 1967); Reynolds v. United States, 267 F.2d 235 (9th Cir. 1959). The question, then, is whether his assertion of this right was ‘intelligent.’2 In this context we take this to mean whether he was sufficiently informed of the consequences of his choice. In our judgment he was.3 ” [Emphasis added.] The Supreme Court of California has also held that the right to represent one’s self in a criminal case is not unlimited and that one of the conditions precedent is a competent waiver of counsel. People v. Floyd, 1 Cal.3d 694, 464 P.2d 64, 83 Cal.Rptr. 608 (Jan. 27, 1970). In Juelich v. United States, 342 F.2d 29, 32 (C.A.5 1965) Ftn." }, { "docid": "12803721", "title": "", "text": "1965) ; United States v. Plattner, 330 F.2d 271 (2d Cir. 1964). These cases relied on dictum in Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942), stating that the “right to dispense with a lawyer’s help” is “correlative” to “the right to assistance of counsel.” The Court did not, however, say that this “correlative” right is guaranteed by the Constitution. Brown v. United States, 105 U.S. App.D.C. 77, 264 F.2d 363, 365 n. 2 (1959). Moreover, in Singer v. United States, 380 U.S. 24, 34, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965), the Court specifically noted that “the ability to waive a constitutional right [such as counsel] does not ordinarily carry with it the right to insist on the opposite of that right.” We find Singer analogous since the right to counsel, like the right to jury trial, affects the fairness of the trial. See infra. But see Comment, id. at 1488-89. We are not persuaded by the reasoning of the cases finding a constitutional right to pro se representation and we decline to follow them. . A second basis is the need for confidence in the attorney-client relation. United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1128 (1972) ; United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965). See note 15 infra. . The Commentary to Standard C.3 (“Standby counsel for defendant representing himself”) includes this language (p. 12) : “Even if the defendant is permitted to represent himself at the trial, in all but the simj)lest trials — and perhaps even in those if resources permit — it will be prudent for the trial judge to arrange for standby counsel to be present at all times. . . . [T]he presence of such counsel . . . may also serve to protect the rights of the accused, a matter of public interest even if the accused has rejected professional assistance. The experience of those judges who have appointed standby counsel is that the pro se defendant often discovers, early" }, { "docid": "23598708", "title": "", "text": "by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct cases therein.” 28 U.S.C. § 1654. No recent innovation, this statutory guarantee has existed since the First Congress. Judiciary Act of 1789, § 35, 1 Stat. 73, 92 (1789). See United States v. Plattner (2d Cir. 1964) 330 F.2d 271, 274. Indeed, it is now clear that the right to proceed pro se is not merely statutory, it is a right of constitutional dimension. (Bayless v. United States (9th Cir. 1967) 381 F.2d 67, 71. See also Adams v. United States ex rel. McCann (1942) 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (“The right to assistance of counsel and the correlative right to dispense with a lawyer’s help are not legal formalisms. . . . [T]he Constitution does not force a lawyer upon a defendant.”); Arnold v. United States (9th Cir. 1969) 414 F.2d 1056, 1058, cert. denied (1970) 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (“A defendant in a criminal case not only has a constitutional right to the assistance of counsel, he has a correlative constitutional right to refuse the advice or interference of counsel and to present his own case. A court has no more right to force an attorney on a defendant than it has to ignore the Sixth Amendment right to counsel.”); Reynolds v. United States (9th Cir. 1959) 267 F.2d 235; Duke v. United States (9th Cir. 1958) 255 F.2d 721, cert. denied, 357 U.S. 920, 78 S.Ct. 1361, 2 L.Ed.2d 1365. But cf. People v. Sharp (1972) 7 Cal.3d 448, 103 Cal.Rptr. 233, 499 P.2d 489. Since the right to proceed pro se is bottomed on the Constitution, the defendant need not show prejudice in order to secure reversal of a conviction. (United States v. Pike (9th Cir. 1971) 439 F.2d 695.) Although it is not error for the court to require counsel to be present and prepared to give advice, such counsel may not interfere with the defendant’s presentation of the case and may give advice only upon request. (Bayless v." }, { "docid": "5546292", "title": "", "text": "the complete denial of this right in a federal trial is, per se, reversible error. United States v. Pike, 439 F.2d 695 (9th Cir. 1971). See United States v. Price, 474 F.2d 1223 (9th Cir., 1973). Meeks presents several questions which have not hitherto been considered. First, this case comes to us on habeas corpus, unlike most of the eases involving pro se representation, which have presented the problem in the context of a direct appeal. See, e. g., Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268, 143 A.L.R. 435 (1942); United States v. Pike, supra; United States v. Plattner, 330 F.2d 271 (2d Cir. 1964). Thus, the federal statute providing for pro se representation (28 U.S.C. § 1654) has no application. The issue is whether the petitioner is “in custody in violation of the Constitution.” 28 U.S.C. § 2254(a). On the constitutional question, Meeks’ conduct requires a discussion of the sort of demand that must be* made in order to proceed pro se, and when that demand must be made. We hold that Meeks did not make a proper demand to proceed pro se at his trial. Meeks asserts that at his trial, before a different judge from the one who presided over his preliminary hearing, he again asserted his right to proceed without counsel but was denied the right. Meeks contends that the standard used in California to pass on demands to proceed pro se is constitutionally invalid because it requires that the defendant possess some actual ability to present a defense. We do not reach this question, for we hold that Meeks did not make an “unequivocal” demand to represent himself. United States ex rel. Anderson v. Fay, 394 F.2d 109 (2d Cir. 1968); United States ex rel. Maldonado v. Denno, 348 F.2d 12, 16 n.2 (2d Cir. 1965), cert. denied, Di Blasi v. McMann, 384 U.S. 1007, 86 S.Ct. 1950, 16 L.Ed.2d 1020 (1966); cf. Rotolo v. United States, 404 F.2d 316 (5th Cir. 1968). The reason an “unequivocal” demand is required is that, otherwise, “convicted criminals would" }, { "docid": "14754085", "title": "", "text": "F.2d 29 (5th Cir. 1965); Van Nattan v. United States, 357 F.2d 161 (10th Cir. 1966). In our court, Brown v. United States, 105 U.S.App.D.C. 77, 264 F.2d 363 (en banc 1959), left the issue unresolved. Reversal was sought because the trial judge failed to instruct a defendant of his right to represent himself when his court-appointed attorney informed the court that defendant was dissatisfied with the attorney’s pessimism about the outcome of the case. There was no opinion for a majority of the court. Judge Miller, joined by Judges Prettyman, Danaher and Bastían, stated that the pro se right is statutory only, and therefore (a) defendant must assert the right in order to be entitled to it and (b) in any event no reversal was required since no prejudice could be discerned. The opinions of the other five judges are consistent with a view that the Constitution is the basis for the right, although only one expressly discussed its source. Judge Burger, concurring in part, differed with the others voting to affirm because he treated defendant’s expression of “dissatisfaction” as the equivalent of a request for removal of counsel, but held it within the court’s discretion to deny the request so long as it was sufficiently apprised of the cause of the “dissatisfaction.” The four dissenters joined in an opinion stating that the reasons for the “dissatisfaction” were not made sufficiently clear to the court to permit the exercise of its informed discretion on the matter, and hence the judge should have inquired further into the basis for defendant’s attitude and should have specifically informed defendant of his right to proceed alone. The pro se alternative, they felt, is one of fundamental importance, and a defendant can make an informed decision on how best to conduct his defense only if he is made aware that he is free to dispense with counsel. The principal dissent, however, made no mention of the Constitution. Only Judge Bazelon, in a separate dissent, said the pro se right was grounded in the Constitution. B. Need for Recognition of Statutory Right — If Timely" }, { "docid": "14754084", "title": "", "text": "U.S. at 34-35, 85 S.Ct. at 789. It pointed out that [t]he Constitution recognizes an adversary system as the proper method of determining guilt, and the Government, as a litigant, has a legitimate interest in seeing that cases in which it believes a conviction is warranted are tried before the tribunal which the Constitution regards as most likely to produce a fair result. Id. at 36, 85 S.Ct. at 790. There are conflicting indications from the circuits. The Second Circuit in United States v. Plattner, 330 F.2d 271 (2d Cir. 1964), recognized constitutional status for the pro se right. In accord with Plattner, see Lowe v. United States, 418 F.2d 100 (7th Cir. 1969), cert. denied 397 U.S. 1048, 90 S.Ct. 1378, 25 L.Ed.2d 660 (1970); United States v. Warner, 428 F.2d 730 (8th Cir. 1970), cert. denied 400 U.S. 930, 91 S.Ct. 194, 27 L.Ed.2d 191 (1971); United States v. Pike, 439 F.2d 695 (9th Cir. 1971); Hodge v. United States, 414 F.2d 1040 (9th Cir. 1969). But compare Juelich v. United States, 342 F.2d 29 (5th Cir. 1965); Van Nattan v. United States, 357 F.2d 161 (10th Cir. 1966). In our court, Brown v. United States, 105 U.S.App.D.C. 77, 264 F.2d 363 (en banc 1959), left the issue unresolved. Reversal was sought because the trial judge failed to instruct a defendant of his right to represent himself when his court-appointed attorney informed the court that defendant was dissatisfied with the attorney’s pessimism about the outcome of the case. There was no opinion for a majority of the court. Judge Miller, joined by Judges Prettyman, Danaher and Bastían, stated that the pro se right is statutory only, and therefore (a) defendant must assert the right in order to be entitled to it and (b) in any event no reversal was required since no prejudice could be discerned. The opinions of the other five judges are consistent with a view that the Constitution is the basis for the right, although only one expressly discussed its source. Judge Burger, concurring in part, differed with the others voting to affirm because he" }, { "docid": "1975339", "title": "", "text": "Judiciary Act of 1789, 1 Stat. 73, 92 (1789) and was signed into law by President Washington one day before the same Congress proposed what came to be the Sixth Amendment to the Constitution of the United States. The Supreme Court has indicated that the right to have assistance of counsel carries with it the correlative right to dispense with counsel and defend pro se. Adams v. United States ex rel. McCann, (1942) 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268; Price v. Johnston, (1948) 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356. From the language of these opinions, some Circuit Courts of Appeals have deduced that the right to defend pro se is constitutionally protected. See Juelich v. United States, (C.A.5, 1965) 342 F.2d 29; MacKenna v. Ellis, (C.A.5, 1959) 263 F.2d 35; and United States v. Plattner, (C.A.2, 1964) 330 F.2d 271, in which case it was said: “ * * * we hold the right to act pro se as above stated is a right arising out of the Federal Constitution and not the mere product of legislation or judicial decision. Thus we would be required to remand the case, even if no prejudice to Plattner were shown to have resulted from the refusal to permit him to act pro se.” The validity of the deduction that the right to defend oneself without the assistance of counsel is a constitutional right is questionable. All that has really been said by the Supreme Court is that the Sixth Amendment does not prohibit the right of self-representation. See Adams v. United States ex rel. McCann, supra; Carter v. People of State of Illinois, (1946) 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172; and United States v. Johnson, (C.A.6, 1964) 333 F.2d 1004. Other courts have held that the right to defend pro se is not constitutional, but only statutory. Brown v. United States, (1959) 105 U.S.App.D.C. 77, 264 F.2d 363 and United States v. Bentvena, (C.A.2, 1963) 319 F.2d 916 at 937, cert. den. 375 U.S. 940, 11 L.Ed.2d 271, 272, 84 S.Ct. 345, 346, 353," }, { "docid": "23598710", "title": "", "text": "United States, supra.) The court may not deny a defendant the right to represent himself because he lacks expertise or professional capabilities. When a proper request is made, the only question for the court is whether the defendant has the capacity to decide intelligently and to understand what he is doing, i. e., can the defendant make a valid waiver of his right to counsel? (Hodge v. United States (9th Cir. 1969) 414 F.2d 1040.) We assume that the right to proceed pro se is not unlimited (e. g., United States v. Private Brands (2d Cir. 1957) 250 F.2d 554, cert. denied, 355 U.S. 957, 78 S.Ct. 542, 2 L.Ed.2d 532; United States v. Bentvena (2d Cir. 1963) 319 F.2d 916), but our circuit has not expressly decided what limitations, aside from timeliness (United States v. Pike, supra, 439 F.2d at 695), should be imposed. We need not delineate the margins of the right in this case because nothing in Coffey’s record suggests a basis for qualifying it. The Government argues that Coffey’s outburst at the threshold of trial justified denial of his right to proceed pro se. (Cf. Illinois v. Allen (1970) 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353.) The incident occurred when Coffey, who is black, learned that there were no blacks on the jury panel. The court admonished Coffey, and he thereafter behaved in a manner that moved the court to commend him for good conduct. However, we have no occasion to decide whether Coffey’s initial conduct would have warranted a denial of his right to represent himself, because the district court did not purport to place its ruling on that ground. Rather, the court denied the motion because it believed that Coffey did not have the skills adequately to defend himself. We recognize that the court was motivated by its concern for Coffey's welfare. We are also aware that pro se representation is usually inadequate and often unconducive to the orderly administration of a criminal trial. But the law of the circuit forbids denial of the right based on these considerations. (E. g., United" }, { "docid": "23598709", "title": "", "text": "has a constitutional right to the assistance of counsel, he has a correlative constitutional right to refuse the advice or interference of counsel and to present his own case. A court has no more right to force an attorney on a defendant than it has to ignore the Sixth Amendment right to counsel.”); Reynolds v. United States (9th Cir. 1959) 267 F.2d 235; Duke v. United States (9th Cir. 1958) 255 F.2d 721, cert. denied, 357 U.S. 920, 78 S.Ct. 1361, 2 L.Ed.2d 1365. But cf. People v. Sharp (1972) 7 Cal.3d 448, 103 Cal.Rptr. 233, 499 P.2d 489. Since the right to proceed pro se is bottomed on the Constitution, the defendant need not show prejudice in order to secure reversal of a conviction. (United States v. Pike (9th Cir. 1971) 439 F.2d 695.) Although it is not error for the court to require counsel to be present and prepared to give advice, such counsel may not interfere with the defendant’s presentation of the case and may give advice only upon request. (Bayless v. United States, supra.) The court may not deny a defendant the right to represent himself because he lacks expertise or professional capabilities. When a proper request is made, the only question for the court is whether the defendant has the capacity to decide intelligently and to understand what he is doing, i. e., can the defendant make a valid waiver of his right to counsel? (Hodge v. United States (9th Cir. 1969) 414 F.2d 1040.) We assume that the right to proceed pro se is not unlimited (e. g., United States v. Private Brands (2d Cir. 1957) 250 F.2d 554, cert. denied, 355 U.S. 957, 78 S.Ct. 542, 2 L.Ed.2d 532; United States v. Bentvena (2d Cir. 1963) 319 F.2d 916), but our circuit has not expressly decided what limitations, aside from timeliness (United States v. Pike, supra, 439 F.2d at 695), should be imposed. We need not delineate the margins of the right in this case because nothing in Coffey’s record suggests a basis for qualifying it. The Government argues that Coffey’s outburst at" }, { "docid": "5546291", "title": "", "text": "ALFRED T. GOODWIN, Circuit Judge: Joseph Anthony Meeks challenged by way of habeas corpus in the district court two California convictions. The causes were combined below, and have been combined on appeal. While the appeal raises a number of questions, only one requires extended discussion. Meeks asserts that he was denied the right to act as his own lawyer at his preliminary hearing and at his trial in case No. 44099. At his preliminary hearing, Meeks clearly demanded the right to proceed pro se, and he was allowed to do so. The judge, however, appointed counsel to sit with Meeks and to aid in the examination and cross-examination of witnesses. Meeks does not assert that he incurred prejudice by reason of this assistance, and there was no error. Bayless v. United States, 381 F.2d 67 (9th Cir. 1967). This circuit has recognized a constitutional right to represent oneself, Arnold v. United States, 414 F.2d 1056 (9th Cir. 1969), cert. denied, 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970), and has recently stated that the complete denial of this right in a federal trial is, per se, reversible error. United States v. Pike, 439 F.2d 695 (9th Cir. 1971). See United States v. Price, 474 F.2d 1223 (9th Cir., 1973). Meeks presents several questions which have not hitherto been considered. First, this case comes to us on habeas corpus, unlike most of the eases involving pro se representation, which have presented the problem in the context of a direct appeal. See, e. g., Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268, 143 A.L.R. 435 (1942); United States v. Pike, supra; United States v. Plattner, 330 F.2d 271 (2d Cir. 1964). Thus, the federal statute providing for pro se representation (28 U.S.C. § 1654) has no application. The issue is whether the petitioner is “in custody in violation of the Constitution.” 28 U.S.C. § 2254(a). On the constitutional question, Meeks’ conduct requires a discussion of the sort of demand that must be* made in order to proceed pro se, and when that" } ]

[ { "docid": "21393246", "title": "", "text": "sentencing phase of his case. We therefore will not upset the decision of the Florida Supreme Court on this matter. B. Petitioner contends that his counsel were ineffective during the sentencing phase of his trial, primarily due to their failure to offer evidence of petitioner’s drug use on the day of the murder — this time as a mitigating circumstance rather than as a defense to premeditated murder. Petitioner contends further that counsel were ineffective for failing to present background evidence to the court-appointed psychologist (thereby “causing” an incorrect evaluation) and for failing to pursue evidence of his history of drug and alcohol abuse and evidence of his abusive and neglect-ridden childhood. The district court concluded that none of this evidence was “so compelling that it would have changed the result of the proceedings in this case.” We agree. As we indicated earlier, Strickland requires that a petitioner demonstrate a reasonable probability that the proffered evidence would have changed the result in the case. See Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. The evidence. petitioner proffered in his habeas petition regarding his drug use the day of the murder is largely irrelevant. It does not matter that he was seen with a bag of cocaine that morning; nor does it matter that Jackson had supplied petitioner with drugs prior to the commission of the crime; nor is it enough to allege that another drug test (which defense counsel could not have obtained) may have shown a smaller, “recreational” amount of cocaine ín his blood on the day of the robbery. Petitioner has not, and cannot, show that there was any measurable amount of cocaine in his blood. In the end, the only evidence he has proffered that would support his claim that he was intoxicated during the robbery is the statement of his accomplice that they had been using drugs that day. That evidence is insufficient to demonstrate a reasonable probability that, had counsel put that evidence before the jury, it would not have recommended, and the trial court would not have imposed, a death sentence. We reach" } ]

[ { "docid": "18346094", "title": "", "text": "in deciding not to present evidence of Stewart’s longstanding alcohol and drug abuse to the jury. Therefore, we conclude that the Florida Supreme Court’s determination that Barbas presented appropriate mitigation evidence was not objectively unreasonable. Alternatively, Stewart has not demonstrated prejudice arising from the failure to present evidence of Mr. Scarpo’s abuse or Stewart’s alcohol and drug use. In the penalty phase, Barbas presented detailed accounts of Stewart’s childhood abuse and suffering at the hands of his biological mother. Based on Mr. Scarpo’s testimony about this mistreatment, Dr. Afield forcefully argued to the jury that Stewart had been programmed for violence by age five and could not conform his conduct to the law. Dr. Afield also mentioned Barbas’s drinking at his mother’s grave as an indication of severe disturbance. Based on this evidence, the state trial court found Stewart’s extreme disturbance and diminished capacity to appreciate the criminality of his conduct as mitigating factors. In light of the penalty phase evidence of abuse inflicted by Stewart’s biological mother, we agree with the state 3.850 court and Florida Supreme Court that similar evidence of Mr. Scarpo’s abuse would not have impacted sentencing or produced a different result. See Stewart v. State, 801 So.2d at 67 n. 10; see also Van Poyck, 290 F.3d at 1324 (finding no ineffective assistance of counsel when evidence missing from the penalty phase was “merely cumulative”). Stewart has also failed to establish how additional evidence of Stewart’s substance abuse beyond Dr. Afield’s testimony about his drinking would have altered sentencing. Aside from unsupported assertions about potential effects on the jury, Stewart points to nothing in the record that would bring into question the state 3.850 court’s finding of no prejudice. Finally, none of this evidence counters the clear aggravating factors in this case: (1) Stewart’s commission of the murder during a robbery; and (2) Stewart’s prior convictions for violent felonies, including attempted first-degree murder. Weighed against these heavy aggravating circumstances, Stewart has not satisfied his high burden of proving that the sentencing outcome would have been different if the jury had evidence of Mr. Scarpo’s abuse" }, { "docid": "5563869", "title": "", "text": "present a more detailed picture of Robinson’s poverty and poor living conditions as a child. On cross-examination, however, Warner agreed that his situation growing up was essentially as bad as Robinson’s, and yet neither he nor his siblings had ever been convicted of murder or sexual battery. The State probably would have similarly examined Warner had he testified during resentencing. And this reminder to the resentencing jury would have reinforced the notion that it was not necessarily Robinson’s background that led to these criminal acts, a point not helpful to Robinson’s case for a life sentence. We recognize that the resentencing jury and trial judge heard the evidence of mitigation through only Krop. However, Krop testified during resentencing that some of Robinson’s self-reported history had been corroborated by persons with whom Krop spoke, thereby adding credibility to Robinson’s reports. For example, Coreen and Earl Smith corroborated certain physical abuse, and Robinson’s biological father corroborated Robinson’s lack of contact with his natural mother. A probation officer with whom Krop spoke, as well as Krop’s review of Robinson’s prison records, also corroborated Robinson’s report that he functions well in prison. Indeed, despite the fact that much of the mitigation evidence came only from Robinson’s self-reports to Krop, the trial court specifically found in its sentencing order, as non-statutory mitigating factors, that Robinson had a difficult childhood and suffered physical and sexual abuse during that childhood. Moreover, even 3.850 counsel, with the benefit of time and hindsight, did not present to the 3.850 court any evidence tending to corroborate Robinson’s stories of sexual abuse. Thus, we cannot say that the re-sentencing jury was deprived of hearing corroborating evidence in that regard. In any event, while the State questioned Krop about who had corroborated certain aspects of his testimony, the State did not allude to, much less argue, “lack of corroboration” during its closing arguments to the resentencing jury. The State also did not comment on the weight or amount of nonstatutory mitigating evidence presented by the defense. Instead, the State focused on the aggravating circumstances in this case and argued that those factors" }, { "docid": "5563873", "title": "", "text": "of alcohol and drug use.”); Rogers v. Zant, 13 F.3d 384, 388 (11th Cir.1994) (noting reasonableness of lawyer’s fear that defendant’s voluntary drug and alcohol use could be “perceived by the jury as aggravating instead of mitigating”) (emphasis in original). Probative evidence in the 3.850 proceedings with regard to Robinson’s allegedly having been incarcerated in an adult prison as a child is similarly lacking. Robinson’s 3.850 counsel did proffer a police report dated at a time when Robinson would have been 14, and that police report lists Robinson’s age as 19. At best, however, that police report corroborates Krop’s testimony during resentencing that Robinson had lied about his age when he was arrested during his childhood. But that police report is not proof that Robinson actually was sent to an adult prison for that offense (or any other offense), much less that Robinson served any substantial time in an adult prison as a minor. Fourth, much of the information presented in the 3.850 proceedings may have been harmful to Robinson’s case and tipped the scales further in favor of the death penalty. The new mitigation evidence that Robinson “had loving relationships with women” would have opened the door to evidence that was particularly damaging. Indeed, had Robinson’s trial counsel presented this mitigation evidence, it would have allowed the State to present evidence that only five days after murdering and raping St. George, Robinson allegedly raped and robbed another woman, Jennifa Bashford, in similar circumstances. Discussing this subsequent robbery and rape, the Florida Supreme Court noted that “Jennifa Bashford and three others were robbed in the early morning hours” five days after St. George’s murder, and after that robbery, “Ms. Bashford was allegedly raped by Robinson.” Robinson III, 707 So.2d at 697 n. 11. Some of the articles stolen from the victims were later found in a search of Robinson’s vehicle, but “the charges in that case against Robinson were later dropped after he was convicted of murder in this case.” Id. In part because the witnesses did not testify as to their belief that Robinson was loving and respectful towards" }, { "docid": "5563872", "title": "", "text": "George’s murder. And Maddox, the man who employed Robinson in the years before St. George’s murder, testified only as to what he had heard about Robinson’s general drinking habits, and acknowledged that he had “never once” seen Robinson take a drink. The 3.850 mitigation evidence simply does not show what Robinson drank before committing murder. . In any event, emphasizing intoxication at the time of St. George’s murder, or a history of drinking in general, could have damaged Robinson’s case for life before the resentencing jury. See Grayson, 257 F.3d at 1227 (“[W]e note that emphasizing [the petitioner’s] alcoholic youth and intoxication may also have been damaging to [the petitioner] in the eyes of the jury.”); Tompkins v. Moore, 193 F.3d 1327, 1338 (11th Cir.1999) (“[A] showing of alcohol and drug abuse is a two-edged sword which can harm a capital defendant as easily as it can help him at sentencing.”) (citing Waldrop v. Jones, 77 F.3d 1308, 1313 (11th Cir.1996)); Clisby, 26 F.3d at 1056 (“Precedents show that many lawyers justifiably fear introducing evidence of alcohol and drug use.”); Rogers v. Zant, 13 F.3d 384, 388 (11th Cir.1994) (noting reasonableness of lawyer’s fear that defendant’s voluntary drug and alcohol use could be “perceived by the jury as aggravating instead of mitigating”) (emphasis in original). Probative evidence in the 3.850 proceedings with regard to Robinson’s allegedly having been incarcerated in an adult prison as a child is similarly lacking. Robinson’s 3.850 counsel did proffer a police report dated at a time when Robinson would have been 14, and that police report lists Robinson’s age as 19. At best, however, that police report corroborates Krop’s testimony during resentencing that Robinson had lied about his age when he was arrested during his childhood. But that police report is not proof that Robinson actually was sent to an adult prison for that offense (or any other offense), much less that Robinson served any substantial time in an adult prison as a minor. Fourth, much of the information presented in the 3.850 proceedings may have been harmful to Robinson’s case and tipped the scales" }, { "docid": "15142506", "title": "", "text": "mitigating evidence overlooked by trial counsel, let alone whether the discovery of such evidence would probably have inclined the jury to eschew a death-sentence recommendation. On the other hand, the issue regarding the development of the New Jersey evidence is close. Under the Ohio statute, a capital defendant found guilty of a death specification has to present some mitigating evidence in order to avoid the death penalty. If a jury has nothing to weigh against the aggravating circumstance, it almost certainly must find that the aggravating circumstance outweighs the (nonexistent) mitigating circumstances, and recommend death. The only evidence actually presented by trial counsel that could have saved Mapes from a death sentence was Mapes’s un-sworn statement that he was not the trig-german in New Jersey. However, it appears that other evidence was available to corroborate Mapes’s unsworn contention. That is, the record suggests that a man named Elliott Hampton was the trigger-man in New Jersey. For instance, Hampton himself states that he is serving a life sentence after being convicted as the trig-german in that crime. And, another New Jersey accomplice states that Hampton, not Mapes, shot the New Jersey victim. Mapes’s Ohio accomplice, Rodney Newton, has recanted his trial testimony that Mapes admitted being the New Jersey triggerman. Finally, although it is not in the record, the New Jersey police report purportedly concludes that Hampton, not Mapes, was the shooter. In his habeas petition, Mapes has provided the affidavits of three Ohio Public Defender Commission investigators who have sworn that they reviewed the police report and that it indicates Hampton was the triggerman. Certainly, trial counsel must commit a serious error to be judged unconstitutionally ineffective. However, when a client faces the prospect of being put to death unless counsel obtains and presents something in mitigation, minimal standards require some investigation. The record indicates no such efforts by Mapes’s counsel. And, even the little mitigation presented — Mapes’s unsworn statement — could have been significantly corroborated by the evidence later gathered by Mapes’s present counsel. There is no reason to believe this evidence was not available to trial counsel." }, { "docid": "5563854", "title": "", "text": "Court concluded that, “although counsel’s performance may have been deficient in some respects, Robinson cannot demonstrate that he was so prejudiced as to merit a new penalty phase proceeding.” Id. at 695. That court pointed out that, “despite the new information provided by postconviction counsel, Krop still believes that Robinson has some type of personality disorder and still has some type of sexual disorder.” Id. at 697. It also reasoned that much of the new mitigation evidence was cumulative. As for the noncumulative evidence about Robinson’s loving relationships with women and other character evidence, the Florida Supreme Court concluded this would have opened the door to “evidence that less than one week after the St. George murder, Robinson allegedly committed an armed robbery and rape with Fields after coming upon a woman with a disabled car on the interstate.” Id. at 696. It emphasized that these “alleged crimes were an almost exact replay of what happened with Ms. St. George, minus the murder.” Id. For these reasons, the Florida Supreme Court determined that no reasonable probability existed that the mitigating evidence subsequently gathered and presented to the 3.850 court would have altered the balance of aggravating and mitigating factors in this case. Thus, the Florida Supreme Court affirmed the 3.850 court’s determination that no prejudice resulted from Pearl’s representation, concluding as follows: “Considering the five valid aggra-vators, the cumulative nature of the proffered lay testimony, and the modification of Krop’s testimony, we find no error in the trial court’s finding that Robinson has not demonstrated the prejudice necessary to mandate relief.” Id. at 697. Although deciding this case on the prejudice prong of Strickland, the Florida Supreme Court did comment on Pearl’s performance. It opined that “Pearl should have been more proactive and more directly involved” with Krop’s investigation and, “[i]n that sense, his performance was probably deficient.” Id. In large part, however, the Florida Supreme Court indicated that Pearl had performed effectively. It noted that Krop’s decision to rely solely on Krop’s testimony, while “questionable,” was “defensible.” Id. And, pointing to the subsequent armed robbery and rape, the Florida" }, { "docid": "1542840", "title": "", "text": "the murder in contradiction of his own testimony. Defense counsel did use an expert during the penalty phase with apparently no impact on the jury’s recommended sentence. It is, therefore, not reasonably probable that presenting expert testimony earlier would have resulted in a different verdict. We find that given the state of Florida law at the time of trial, even counsel who knew and appreciated the relevance of intoxication could have reasonably decided not to pursue such a defense in this case. We also find that petitioner did not suffer any prejudice thereby, as it is not reasonably probable that the jury would have accepted the intoxication defense petitioner suggests defense counsel should have offered. We do not believe that petitioner raised a colorable claim of ineffectiveness under Strickland. After a thorough review of the record, we hold that under the facts of this case, these allegations, if true, do not constitute ineffective assistance of counsel. See Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963); Code v. Montgomery, 725 F.2d 1316, 1321 (11th Cir.1984). Petitioner, therefore, is not entitled to an evidentiary hearing on this claim. B. The Caldwell Issue Petitioner contends that statements made by the prosecutor and by the trial court misled the advisory jury as to its critical role in the sentencing process in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). In Caldwell the prosecutor urged the jury not to view itself as determining whether defendant would die, because the Supreme Court of Mississippi automatically reviewed a death sentence for correctness. The Supreme Court of the United States found that this statement made the jury’s determination that death was the appropriate punishment unreliable, and thus inconsistent with the eighth amendment. The Caldwell Court held that “it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been lead to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Id. at 328-29, 105 S.Ct. at 2639. In Caldwell the prosecutor’s remarks" }, { "docid": "5563870", "title": "", "text": "Robinson’s prison records, also corroborated Robinson’s report that he functions well in prison. Indeed, despite the fact that much of the mitigation evidence came only from Robinson’s self-reports to Krop, the trial court specifically found in its sentencing order, as non-statutory mitigating factors, that Robinson had a difficult childhood and suffered physical and sexual abuse during that childhood. Moreover, even 3.850 counsel, with the benefit of time and hindsight, did not present to the 3.850 court any evidence tending to corroborate Robinson’s stories of sexual abuse. Thus, we cannot say that the re-sentencing jury was deprived of hearing corroborating evidence in that regard. In any event, while the State questioned Krop about who had corroborated certain aspects of his testimony, the State did not allude to, much less argue, “lack of corroboration” during its closing arguments to the resentencing jury. The State also did not comment on the weight or amount of nonstatutory mitigating evidence presented by the defense. Instead, the State focused on the aggravating circumstances in this case and argued that those factors warranted “the ultimate punishment and nothing less.” Additionally, as we dis cuss infra, calling additional character witnesses to corroborate Krop’s testimony could have been particularly harmful to Robinson’s case for life, as it may have opened the door to damaging information. The mitigating evidence presented in the 3.850 proceedings also falls short of proving the two nonstatutory mitigating factors rejected by the trial judge as unsupported by Krop’s testimony during re-sentencing: (1) intoxication at the time of the offenses, and (2) incarceration as a child in an adult prison. The additional mitigation evidence is not probative of intoxication at the time of the offenses. Generally, that evidence deals only with Robinson having been raised around drinking and his drinking while a youth. No new witness saw Robinson on the day or night of the murder or indicated any knowledge of the amount of alcohol Robinson reported drinking prior to the murder. Indeed, the majority of the mitigation witnesses had not seen Robinson for several years, much less at any point close in time to St." }, { "docid": "1542839", "title": "", "text": "misstatement of the applicable law during closing arguments. Essentially, the prosecutor indicated that because Harich’s state of intoxication was voluntary, Florida law did not permit mitigation of first degree murder. Although the prosecutor incorrectly stated the law, see supra note 3, there was no prejudice. Defense counsel subsequently stated in his closing argument that the jury should consider Ha-rich’s alleged state of intoxication as mitigating evidence. The jury thus heard both positions on this issue. Because the trial judge correctly instructed the jury that closing arguments were not treated as evidence, there was even less chance of prejudice. An objection by defense counsel to the prosecutor’s misstatement was unlikely to change the result for the petitioner. It is also unlikely that presenting expert testimony on intoxication in the guilt/innoeence phase of the proceedings would have impacted on the jury’s determination of guilt. Telling the jury that Ha-rich was not capable of forming the specific intent to kill, kidnap, or sexually assault the victims because he was suffering from alcohol idiosyncratic intoxication, would implicate him in the murder in contradiction of his own testimony. Defense counsel did use an expert during the penalty phase with apparently no impact on the jury’s recommended sentence. It is, therefore, not reasonably probable that presenting expert testimony earlier would have resulted in a different verdict. We find that given the state of Florida law at the time of trial, even counsel who knew and appreciated the relevance of intoxication could have reasonably decided not to pursue such a defense in this case. We also find that petitioner did not suffer any prejudice thereby, as it is not reasonably probable that the jury would have accepted the intoxication defense petitioner suggests defense counsel should have offered. We do not believe that petitioner raised a colorable claim of ineffectiveness under Strickland. After a thorough review of the record, we hold that under the facts of this case, these allegations, if true, do not constitute ineffective assistance of counsel. See Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963); Code v. Montgomery," }, { "docid": "8585433", "title": "", "text": "troubled childhood and substance abuse — which the sentencing court clearly recognized in imposing a death sentence— would have had any effect on the sentence. Accordingly, the new mitigation evidence offered at the 3.850 hearing was cumulative, and trial counsel was not ineffective in failing to present it. See Van Poyck v. Florida Dep’t. of Corrs., 290 F.3d 1318, 1324 n. 7 (11th Cir.2002) (“A petitioner cannot establish ineffective assistance by identifying additional evidence that could have been presented when that evidence is merely cumulative.”). In addition, as the 3.850 court noted, the presentation of certain witnesses would have involved presentation of evidence damaging to Marquard. For example, had Marquard’s sister Amy been called upon to testify about their upbringing, she likely would have testified about Marquard’s conviction for molesting her child. Under these circumstances, trial counsel’s decision to present mitigation evidence regarding Marquard’s childhood, substance abuse, and emotional and mental problems through Dr. Krop rather than through the other witnesses who testified at the 3.850 hearing is a classic example of a strategic decision not to be second-guessed by this. Court. See Conklin v. Schofield, 366 F.3d 1191, 1204 (11th Cir. 2004) (“ ‘Which witnesses, if any, to call, and when to call them, is the epitome of a strategic decision, and it is one that we will seldom, if ever, second guess.’ ”) (quoting Waters, 46 F.3d at 1512). This tactical decision cannot be considered ineffective assistance of counsel. Accordingly, the Florida Supreme Court’s decision in Marquard’s 3.850 appeal that he failed to establish ineffective assistance of counsel as to the mitigation evidence did not involve an unreasonable application of federal law. IV. SHACKLING CLAIMS On appeal, Marquard next raises a due process claim based on his being handcuffed before the jury in the penalty phase and an ineffective-assistance-of-counsel claim based on his trial counsel’s failing to object to this shackling during the penalty phase. Thus, Marquard raises both a substantive constitutional claim and an ineffective-assistance-of-counsel claim based on shackling (the “IAC-shackling” claim), which we address in turn. A. Due Process Claim 1. No Evidence of Shackling in" }, { "docid": "5563900", "title": "", "text": "with Robinson, Krop could not diagnose Robinson as having an alcohol abuse disorder. Second, even if Krop had made this diagnosis, these precedents demonstrate that \"mitigation” evidence pertaining to a possible alcohol abuse problem could have hurt Robinson’s case for life. . We also do not find probative Lovett’s affidavit indicating that she visited Robinson at the \"adult prison” because, among other things, that affidavit is unclear as to how old Robinson was at that time. In any event, evidence that Robinson was incarcerated in an adult prison as a juvenile would not likely have affected the sentence in this case, particularly because, even in the 3.850 proceedings, there is zero evidence of what happened to Robinson in this adult prison, assuming he was ever sent to one. Indeed, during resen-tencing Krop testified only to his own belief that this could be damaging. Nothing Robinson points to in the 3.850 proceedings offers any additional evidence particularized to what Robinson’s experiences were in this regard. . See Grayson, 257 F.3d at 1227 (concluding that the evidence presented in the state habe-as proceedings would not have altered the balance of aggravating and mitigating factors, in part, because some of that evidence \"may have been harmful to [petitioner's] request for a life sentence”). . See Van Poyck, 290 F.3d at 1323 (concluding that the Florida Supreme Court was not unreasonable in finding lawyer effective when he did not present certain mitigation evidence in part because \"[c]ounsel concluded that the use of such [evidence] would have opened the door to a considerable amount of damaging evidence” and \"the harm from the jury learning of these other factors could have outweighed the benefits of the evidence Petitioner now says should have been presented”). . Several of the other new mitigation witnesses who would have testified to attributes of Robinson’s character, including his peaceful and non-violent ways, also could have opened the door to this devastating evidence. Even if the relationship-with-women testimony did not open the door to the subsequent rape and robbery, evidence that Robinson had been nice and respectful to three women would have" }, { "docid": "5563902", "title": "", "text": "done little to temper the other tacts before the resentencing jury and the trial judge — that Robinson raped and murdered St. George while on parole for the rape of another woman. . Robinson contends that, even if the evidence that he had positive relationships with women should not have been presented, his trial counsel should have at least uncovered that evidence and provided it to Krop so that Krop could have provided a \"competent mental health examination.” Krop, however, never indicated to Robinson's counsel that he needed more information or was otherwise uncomfortable rendering his initial diagnosis with the information he had. More importantly, Robinson does not argue how he was prejudiced during resentencing by his trial counsel’s failure to provide Krop with this relationship-with-women evidence (or any other evidence presented in the 3.850 proceedings). In addition, if Krop had relied on this relationship-with-women evidence, it could have been brought out and also opened the door to the subsequent robbery and rape. Moreover, Krop’s modification of his initial diagnosis was minor. As the Florida Supreme Court put it, even after his 3.850 review, \"Krop still believes that Robinson has some type of personality disorder and still has some type of sexual disorder.” Robinson III, 707 So.2d at 697. Indeed, during the 3.850 proceedings, Krop could not rule out his initial diagnosis that Robinson had an antisocial personality disorder. The Florida Supreme Court was not objectively unreasonable in its determination that Rrop’s minor modifications would not have affected the balance of mitigating and aggravating factors in this case when considered along with the new mitigation evidence and the five valid aggravators. We add an additional observation — Krop’s 3.850 testimony that Robinson did not have a psychosexual disorder could actually have been harmful to Robinson's case for life; indeed, the trial court specifically found Robinson's psychosexual disorder to be a nonstatu-tory mitigating factor. . Robinson’s reliance on Collier v. Turpin, 177 F.3d 1184 (11th Cir.1999), is misplaced. Unlike this case, the murder in Collier did not involve a rape or kidnapping, or other facts present here. Instead, in Collier, “[t]he" }, { "docid": "5563898", "title": "", "text": "have added anything but cumulative testimony to the case in mitigation that had already been prepared....”). . Also, the additional mitigation evidence in the 3.850 court concerning Robinson's good behavior in prison, in addition to being cumulative, was specifically rejected by the trial judge as a factor not properly considered in mitigation. Thus, that additional evidence might have been no help at all, at least in the eyes of the trial judge who ultimately sentenced Robinson. . Krop also indicated to the resentencing jury that, based on his training, he believed Robinson was probably telling the truth. .See Van Poyck, 290 F.3d at 1325-26 (concluding that the Florida Supreme Court reasonably found that trial counsel’s failure to present evidence the petitioner was not the triggerman during the penalty phase was not prejudicial, in part, because \"being the trig-german played only a very minor role” in the prosecutor's closing argument, and stating \"[especially because the prosecutor's main argument was that the death penalty was appropriate regardless of who the triggerman was, we see no reasonable probability that ... the outcome of the sentencing phase would have been different”). . See Hill v. Moore, 175 F.3d 915, 926 (11th Cir.1999) (\"The evidence [of mitigation] petitioner proffered ... regarding his drug use the day of the murder is largely irrelevant.... Petitioner has not, and cannot, show that there was any measurable amount of cocaine in his blood. In the end, the only evidence he has proffered that would support his claim that he was intoxicated during tire robbery is the statement of his accomplice that they had been using drugs that day. That evidence is insufficient to demonstrate a reasonable probability that, had counsel put that evidence before the jury, it would not have recommended, and the trial court would not have imposed, a death sentence.”). . We also do not find Krop's testimony indicating that, based on his 3.850 review, he would consider an alcohol abuse diagnosis for Robinson changes the balance of factors in this case. First, even after considering all the evidence procured by 3.850 counsel and conducting another interview" }, { "docid": "5563853", "title": "", "text": "concluded that Robinson’s trial counsel exercised reasonable professional judgment and that, in any event, there was “not a reasonable probability that Defendant would have received a life sentence if the background evidence would have been presented in the manner [3.850 counsel] argue it should have been.” Under Strickland’s prejudice prong, the 3.850 court noted that Pearl’s decision not to present character witnesses who would testify that Robinson was a good, nonviolent person “effectively kept out evi dence of a very similar, very violent sexual assault which [Robinson] committed” subsequent to St. George’s murder. The 3.850 court determined that had “this evidence come in, there would be no chance the jury would have recommended life.” The 3.850 court also noted that much of the new mitigation evidence was cumulative of what had been presented to the resentencing jury and cumulative of those nonstatutory mitigating factors found by the state trial court. The Florida Supreme Court affirmed the denial of Robinson’s 3.850 motion and subsequent request for rehearing. Robinson III, 707 So.2d at 688. The Florida Supreme Court concluded that, “although counsel’s performance may have been deficient in some respects, Robinson cannot demonstrate that he was so prejudiced as to merit a new penalty phase proceeding.” Id. at 695. That court pointed out that, “despite the new information provided by postconviction counsel, Krop still believes that Robinson has some type of personality disorder and still has some type of sexual disorder.” Id. at 697. It also reasoned that much of the new mitigation evidence was cumulative. As for the noncumulative evidence about Robinson’s loving relationships with women and other character evidence, the Florida Supreme Court concluded this would have opened the door to “evidence that less than one week after the St. George murder, Robinson allegedly committed an armed robbery and rape with Fields after coming upon a woman with a disabled car on the interstate.” Id. at 696. It emphasized that these “alleged crimes were an almost exact replay of what happened with Ms. St. George, minus the murder.” Id. For these reasons, the Florida Supreme Court determined that no reasonable" }, { "docid": "5563901", "title": "", "text": "presented in the state habe-as proceedings would not have altered the balance of aggravating and mitigating factors, in part, because some of that evidence \"may have been harmful to [petitioner's] request for a life sentence”). . See Van Poyck, 290 F.3d at 1323 (concluding that the Florida Supreme Court was not unreasonable in finding lawyer effective when he did not present certain mitigation evidence in part because \"[c]ounsel concluded that the use of such [evidence] would have opened the door to a considerable amount of damaging evidence” and \"the harm from the jury learning of these other factors could have outweighed the benefits of the evidence Petitioner now says should have been presented”). . Several of the other new mitigation witnesses who would have testified to attributes of Robinson’s character, including his peaceful and non-violent ways, also could have opened the door to this devastating evidence. Even if the relationship-with-women testimony did not open the door to the subsequent rape and robbery, evidence that Robinson had been nice and respectful to three women would have done little to temper the other tacts before the resentencing jury and the trial judge — that Robinson raped and murdered St. George while on parole for the rape of another woman. . Robinson contends that, even if the evidence that he had positive relationships with women should not have been presented, his trial counsel should have at least uncovered that evidence and provided it to Krop so that Krop could have provided a \"competent mental health examination.” Krop, however, never indicated to Robinson's counsel that he needed more information or was otherwise uncomfortable rendering his initial diagnosis with the information he had. More importantly, Robinson does not argue how he was prejudiced during resentencing by his trial counsel’s failure to provide Krop with this relationship-with-women evidence (or any other evidence presented in the 3.850 proceedings). In addition, if Krop had relied on this relationship-with-women evidence, it could have been brought out and also opened the door to the subsequent robbery and rape. Moreover, Krop’s modification of his initial diagnosis was minor. As the Florida" }, { "docid": "21393238", "title": "", "text": "of time) after his arrest showed no evidence of cocaine. Petitioner submits that the test the chemist performed would not show the small recreational amounts of cocaine he had ingested that day. In sum, had counsel elicited from petitioner the amount of cocaine he had snorted the day of the robbery, presented witnesses to attest to petitioner’s drug habit, and demonstrated the inadequacy of the chemist’s blood analysis, the court would have been required to charge the jury that voluntary intoxication could negate criminal intent. The district court, bypassing Strickland’s first prong, moved directly to the prejudice prong of petitioner’s ineffective assistance claim and concluded that petitioner’s allegations demonstrated no prejudice. They failed to demonstrate a reasonable probability that, absent counsel’s alleged deficiency, the outcome of the trial would have been different. We agree with the district court. The only evidence petitioner proffered (in his petition) regarding his drug use that is even remotely relevant to our inquiry— that he used some amount of cocaine during the hours preceding the robbery and murder — would not warrant a jury instruction regarding voluntary intoxication. While petitioner testified at trial that he was under the influence of cocaine when he arrived at the bank, nothing in the testimony he has proffered in his petition (and that counsel should have introduced) would permit a jury to find that he was “so intoxicated that he [was] unable to form an intent to kill.” See Wiley v. Wainwright, 793 F.2d 1190, 1194 (11th Cir.1986) (noting that under Florida law the person proffering voluntary intoxication as a defense must make such a showing). In sum, no evidentiary hearing is warranted on the issue of counsel’s effectiveness at the guilt phase of the trial, for the proffered testimony, even if true, would not entitle petitioner to relief. See Baldwin, 152 F.3d at 1312. III. We now address petitioner’s challenges regarding the sentencing phase of his case. He presents the following claims: (1) that the Florida Supreme Court conducted a deficient harmless error analysis after striking one of the aggravating factors found by the trial judge in imposing" }, { "docid": "8585411", "title": "", "text": "concluded that counsel was not ineffective in failing to call witnesses other than Dr. Krop to testify about Marquard’s childhood and substance-abuse history, stating: “Although other witnesses could have provided more details relative to Marquard’s early life, counsel is not required to present cumulative evidence.” Id. at 429-30. With respect to Marquard’s assertion that his counsel failed to ensure that he received an adequate mental health evaluation, the Florida Supreme Court noted that neither Dr. Amiel nor Dr. Crown indicated that Dr. Krop had failed to give any specific tests, interviews, or other procedures. After reviewing the testimony of Dr. Amiel, Dr. Crown, and Cheryl Furtick, the Florida Supreme Court concluded that substantial evidence supported the 3.850 court’s determination that all relevant matters in mitigation were in fact presented at the penalty phase. Id. at 430-31. As to claim seven, the Florida Supreme Court treated Marquard’s case as if shackling had occurred in the penalty phase and addressed the issue only as an ineffective-assistance-of-counsel claim for failing to object to the shackling. The Florida Supreme Court concluded that “[bjecaiise this occurred only during the penalty phase, and not the guilt phase, in order to show prejudice, Marquard must show that ‘there is a reasonable probability that, absent trial counsel’s error, the sentencer ... would have concluded that the balance of aggravating and mitigating circumstances did not warrant death.’ ” Id. at 431 (quoting Cherry v. State, 781 So.2d 1040, 1048 (Fla.2000)). Based on the brutal facts of the case, the unanimous jury recommendation of death, and the presence of no statutory and minimal non-statutory mitigating circumstances, the Florida Supreme Court concluded that Marquard had not met his burden on the prejudice prong. Id. Finally, as to claim nine — that the jury instructions, including the HAC instruction, during the penalty phase were vague and overbroad — the Florida Supreme Court determined this claim was procedurally barred in a 3.850 proceeding because it should have been raised on direct appeal. Id. at 423 n. 2. However, as noted earlier, Marquard’s counsel did object to the constitutionality of the HAC instruction at" }, { "docid": "5563897", "title": "", "text": "presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”) . See Grayson, 257 F.3d at 1228; Glock v. Moore, 195 F.3d 625, 636 (11th Cir.1999) (concluding that the petitioner could not show prejudice because “much of the new evidence that [petitioner] presents is merely repetitive and cumulative to that which was presented at trial”); Devier v. Zant, 3 F.3d 1445, 1452 (11th Cir.1993) (concluding that failure to call other available witnesses during penalty phase was not ineffective because \"[t]hese additional witnesses would have testified to essentially the same impressions and sentiments about [the petitioner] that his close relatives had already related at trial and would have added little to the weight of the mitigating evidence”); see also Mulligan v. Kemp, 771 F.2d 1436, 1444 n. 6 (11th Cir.1985) (\"Petitioner submitted a list of twenty-five witnesses in his state habeas corpus proceeding, most of whom [counsel] had never contacted.... [But] it is not clear that the presentation of any of these uncontacted witnesses would have added anything but cumulative testimony to the case in mitigation that had already been prepared....”). . Also, the additional mitigation evidence in the 3.850 court concerning Robinson's good behavior in prison, in addition to being cumulative, was specifically rejected by the trial judge as a factor not properly considered in mitigation. Thus, that additional evidence might have been no help at all, at least in the eyes of the trial judge who ultimately sentenced Robinson. . Krop also indicated to the resentencing jury that, based on his training, he believed Robinson was probably telling the truth. .See Van Poyck, 290 F.3d at 1325-26 (concluding that the Florida Supreme Court reasonably found that trial counsel’s failure to present evidence the petitioner was not the triggerman during the penalty phase was not prejudicial, in part, because \"being the trig-german played only a very minor role” in the prosecutor's closing argument, and stating \"[especially because the prosecutor's main argument was that the death penalty was appropriate regardless of who the triggerman was, we see no reasonable probability" }, { "docid": "5563899", "title": "", "text": "that ... the outcome of the sentencing phase would have been different”). . See Hill v. Moore, 175 F.3d 915, 926 (11th Cir.1999) (\"The evidence [of mitigation] petitioner proffered ... regarding his drug use the day of the murder is largely irrelevant.... Petitioner has not, and cannot, show that there was any measurable amount of cocaine in his blood. In the end, the only evidence he has proffered that would support his claim that he was intoxicated during tire robbery is the statement of his accomplice that they had been using drugs that day. That evidence is insufficient to demonstrate a reasonable probability that, had counsel put that evidence before the jury, it would not have recommended, and the trial court would not have imposed, a death sentence.”). . We also do not find Krop's testimony indicating that, based on his 3.850 review, he would consider an alcohol abuse diagnosis for Robinson changes the balance of factors in this case. First, even after considering all the evidence procured by 3.850 counsel and conducting another interview with Robinson, Krop could not diagnose Robinson as having an alcohol abuse disorder. Second, even if Krop had made this diagnosis, these precedents demonstrate that \"mitigation” evidence pertaining to a possible alcohol abuse problem could have hurt Robinson’s case for life. . We also do not find probative Lovett’s affidavit indicating that she visited Robinson at the \"adult prison” because, among other things, that affidavit is unclear as to how old Robinson was at that time. In any event, evidence that Robinson was incarcerated in an adult prison as a juvenile would not likely have affected the sentence in this case, particularly because, even in the 3.850 proceedings, there is zero evidence of what happened to Robinson in this adult prison, assuming he was ever sent to one. Indeed, during resen-tencing Krop testified only to his own belief that this could be damaging. Nothing Robinson points to in the 3.850 proceedings offers any additional evidence particularized to what Robinson’s experiences were in this regard. . See Grayson, 257 F.3d at 1227 (concluding that the evidence" }, { "docid": "5563871", "title": "", "text": "warranted “the ultimate punishment and nothing less.” Additionally, as we dis cuss infra, calling additional character witnesses to corroborate Krop’s testimony could have been particularly harmful to Robinson’s case for life, as it may have opened the door to damaging information. The mitigating evidence presented in the 3.850 proceedings also falls short of proving the two nonstatutory mitigating factors rejected by the trial judge as unsupported by Krop’s testimony during re-sentencing: (1) intoxication at the time of the offenses, and (2) incarceration as a child in an adult prison. The additional mitigation evidence is not probative of intoxication at the time of the offenses. Generally, that evidence deals only with Robinson having been raised around drinking and his drinking while a youth. No new witness saw Robinson on the day or night of the murder or indicated any knowledge of the amount of alcohol Robinson reported drinking prior to the murder. Indeed, the majority of the mitigation witnesses had not seen Robinson for several years, much less at any point close in time to St. George’s murder. And Maddox, the man who employed Robinson in the years before St. George’s murder, testified only as to what he had heard about Robinson’s general drinking habits, and acknowledged that he had “never once” seen Robinson take a drink. The 3.850 mitigation evidence simply does not show what Robinson drank before committing murder. . In any event, emphasizing intoxication at the time of St. George’s murder, or a history of drinking in general, could have damaged Robinson’s case for life before the resentencing jury. See Grayson, 257 F.3d at 1227 (“[W]e note that emphasizing [the petitioner’s] alcoholic youth and intoxication may also have been damaging to [the petitioner] in the eyes of the jury.”); Tompkins v. Moore, 193 F.3d 1327, 1338 (11th Cir.1999) (“[A] showing of alcohol and drug abuse is a two-edged sword which can harm a capital defendant as easily as it can help him at sentencing.”) (citing Waldrop v. Jones, 77 F.3d 1308, 1313 (11th Cir.1996)); Clisby, 26 F.3d at 1056 (“Precedents show that many lawyers justifiably fear introducing evidence" } ]

[ { "docid": "22416735", "title": "", "text": "active connivance by agents of the State in the making of the “false reports,” or other conduct amount ing to official discrimination clearly sufficient to constitute denial of rights protected by the Equal Protection Clause. Although it is possible that a bill of particulars, or the proof if the case goes to trial, would disclose no co-operative action of that kind by officials of the State, the allegation is enough to prevent dismissal of this branch of the indictment. III. The fourth numbered paragraph of the indictment alleged that the defendants conspired to injure, oppress, threaten, and intimidate Negro citizens of the United States in the free exercise and enjoyment of: “The right to travel freely to and from the State of Georgia and to use highway facilities and other instrumentalities of interstate commerce within the State of Georgia.” The District Court was in error in dismissing the indictment as to this paragraph. The constitutional right to travel from one State to another, and necessarily to use the highways and other instrumentalities of interstate commerce in doing so, occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized. In Crandall v. Nevada, 6 Wall. 35, invali dating a Nevada tax on every person leaving the State by common carrier, the Court took as its guide the statement of Chief Justice Taney in the Passenger Cases, 7 How. 283, 492: “For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.” See 6 Wall., at 48-49. Although the Articles of Confederation provided that “the people of each State shall have free ingress and regress to and from any other State,” that right finds no explicit mention in the Constitution. The reason, it has been suggested, is that a right so elementary was" } ]

[ { "docid": "22959806", "title": "", "text": "It should be noted that this case involves only an abandonment by a resident parent within the State of Georgia, followed by the abandoning parent’s departure from the State. Section 74-9902 also purports to define as a felony an abandonment by a parent who is not a resident of Georgia. See n. 2, supra. Although the Court of Appeals appears to have considered this aspect of the statute of some significance, see 621 F. 2d, at 212, and appellee emphasizes it in his argument here, we express no opinion on the validity of such an application of § 74-9902. See In re King, 3 Cal. 3d 226, 474 P. 2d 983 (1970). In Edwards v. California, 314 U. S. 160, the Court held that the Commerce Clause required the invalidation of state statutes designed to restrict interstate migration. Justice Douglas, joined by Justice Black and Justice Murphy, agreed with the Court’s judgment, but preferred to rely upon the Privileges and Immunities Clause of the Fourteenth Amendment as the source of the right to travel: “The right to move freely from State to State is an incident of national citizenship protected by the privileges and immunities clause of the Fourteenth Amendment against state interference. Mr. Justice Moody in Twining v. New Jersey, 211 U. S. 78, 97, stated, ‘Privileges and immunities of citizens of the United States ... are only such as arise out of the nature and essential character of the National Government, or are specifically granted or secured to all citizens or persons by the Constitution of the United States.’ And he went on to state that one of those rights of national citizenship was ‘the right to pass freely from State to State.’ Id., at 97.” Id., at 178 (Douglas, J., concurring) (emphasis and ellipsis in original). Justice Jackson was of essentially the same view. See id., at 182-184 (concurring opinion). It also should be noted that earlier decisions, beginning with Corfield v. Coryell, 6 F. Cas. 546 (No. 3,230) (CCED Pa. 1825) (Washington, J., Circuit Justice), suggested that the right to travel was a privilege and immunity" }, { "docid": "22959790", "title": "", "text": "understood the statute not to require any proof of criminal intent, it considered this feature a further indication of the statute’s unconstitutional overbreadth. The Warden appealed, and we noted probable jurisdiction. 449 U. S. 1122. In an opinion issued several months prior to the Court of Appeals’ decision, the Georgia Supreme Court had upheld the felony provision of § 74-9902 against an almost identical constitutional challenge. See Garren v. State, 245 Ga. 323, 264 S. E. 2d 876 (1980). We now resolve this conflict between the Georgia Supreme Court and the Court of Appeals by reversing the judgment of the Court of Appeals. I The Court of Appeals’ conclusion that § 74-9902 is constitutionally invalid rests entirely on the premise that the statute impairs the fundamental right of every Georgia resident to travel from Georgia to another State. It is, of course, well settled that the right of a United States citizen to travel from one State to another and to take up residence in the State of his choice is protected by the Federal Constitution. Although the textual source of this right has been the subject of debate, its fundamental nature has consistently been recognized by this Court. See Shapiro v. Thompson, 394 U. S. 618, 629-631; United States v. Guest, 383 U. S. 745, 757-759. The right to travel has been described as a privilege of national citizenship, and as an aspect of liberty that is protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. Whatever its source, a State may neither tax nor penalize a citizen for exercising his right to leave one State and enter another. Despite the fundamental nature of this right, there nonetheless are situations in which a State may prevent a.citizen from leaving. Most obvious is the case in which a person has been convicted of a crime within a State. He may be detained within that State, and returned to it if he is found in another State. Indeed, even before trial or conviction, probable cause may justify an arrest and subsequent temporary detention. Similarly, a person who commits" }, { "docid": "22049805", "title": "", "text": "to travel.” That right — or, more precisely, the federal interest in free interstate migration — is clearly, though indirectly, affected by the Alaska dividend-distribution law, and this threat to free interstate migration provides an independent rationale for holding that law unconstitutional. At the outset, however, I note that the frequent attempts to assign the right to travel some textual source in the Constitution seem to me to have proved both inconclusive and unnecessary. Justice O’Connor plausibly argues, post, at 78-81, that the right predates the Constitution and was carried forward in the Privileges and Immunities Clause of Art. IV. But equally plausible, I think, is the argument that the right resides in the Commerce Clause, see Edwards v. California, 314 U. S. 160, 173 (1941), or in the Privileges and Immunities Clause of the Fourteenth Amendment, see id., at 177-178 (Douglas, J., concurring). In any event, in light of the unquestioned historic recognition of the principle of free interstate migration, and of its role in the development of the Nation, we need not feel impelled to “ascribe the source of this right to travel interstate to a particular constitutional provision.” Shapiro v. Thompson, 394 U. S. 618, 630 (1969). It suffices that: “‘The constitutional right to travel from one State to another . . . occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized. “ ‘. . . [T]he right finds no explicit mention in the Constitution. The reason, it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.”’ Id., at 630-631, quoting United States v. Guest, 383 U. S. 745, 757-758 (1966). As is clear from our cases, the right to travel achieves its most forceful expression in the context of equal protection analysis. But if, finding no citable passage in the Constitution to assign as" }, { "docid": "19744361", "title": "", "text": "Claims Cross Sound also contends that the Ferry Law violates the Equal Protection Clause because it infringes upon its passengers’ right to travel. “Freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.” Dunn v. Blum-stein, 405 U.S. 330, 338, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972) (internal quotation marks omitted). Although “[t]he textual source of the constitutional right to travel, or, more precisely, the right of free interstate migration, ... has proved elusive,” Att’y Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 902, 106 S.Ct. 2317, 90 L.Ed.2d 899 (1986), it is apparent from prior cases that the right to travel “occupies a position fundamental to the concept of our Federal Union ... [and] has been firmly established and repeatedly recognized.” Shapiro v. Thompson, 394 U.S. 618, 630, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (internal quotation marks omitted). The right to travel encompasses at least three different components: “[i]t protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.” Saenz v. Roe, 526 U.S. 489, 500, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999). The first of these components is at issue in this case. Because laws involving the right to travel often make distinctions between in-state and out-of-state persons, the right “achieves its most forceful expression in the context of equal protection analysis.” Soto-Lopez, 476 U.S. at 902 n. 2, 106 S.Ct. 2317. When a local regulation infringes upon a constitutionally-protected right, we apply strict scrutiny, requiring the municipality to show that the regulation is narrowly tailored to serve a compelling governmental interest. See, e.g., Memorial Hosp. v. Maricopa County, 415 U.S. 250, 254, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974); Blumstein, 405 U.S. at 335, 92 S.Ct. 995. Otherwise, the regulation need survive only rational basis review. See, e.g., Fitzgerald v." }, { "docid": "22959791", "title": "", "text": "Constitution. Although the textual source of this right has been the subject of debate, its fundamental nature has consistently been recognized by this Court. See Shapiro v. Thompson, 394 U. S. 618, 629-631; United States v. Guest, 383 U. S. 745, 757-759. The right to travel has been described as a privilege of national citizenship, and as an aspect of liberty that is protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. Whatever its source, a State may neither tax nor penalize a citizen for exercising his right to leave one State and enter another. Despite the fundamental nature of this right, there nonetheless are situations in which a State may prevent a.citizen from leaving. Most obvious is the case in which a person has been convicted of a crime within a State. He may be detained within that State, and returned to it if he is found in another State. Indeed, even before trial or conviction, probable cause may justify an arrest and subsequent temporary detention. Similarly, a person who commits a crime in a State and leaves the State before arrest or conviction may be extradited following “a summary and mandatory executive proceeding.” Manifestly, a person who has committed an offense against the laws of Georgia may be stopped at its borders and temporarily deprived of his freedom to travel elsewhere within or without the State. In this case, appellee’s guilty plea was an acknowledgment that he had committed a misdemeanor before he initially left Georgia for Alabama. Upon conviction of that misdemeanor, he was subject to imprisonment for a period of up to one year. Therefore, although he was not convicted of abandonment until after his first trip to Alabama, appellee’s own misconduct had qualified his right to travel interstate before he sought to exercise that right. We are aware of nothing in our prior cases or in the language of the Federal Constitution that suggests that a person who has committed an offense punishable by imprisonment has an unqualified federal right to leave the jurisdiction prior to arrest or conviction. This case differs" }, { "docid": "22049798", "title": "", "text": "of dividend units residents are entitled to receive and the method of payment. Section 43.23.010(f) provides that a resident entitled to benefits under subsection (b) who was a resident for less than a full year is entitled to a dividend prorated on the basis of the number of months of state residence. The Alaska statute does not simply make distinctions between native-born Alaskans and those who migrate to Alaska from other states; it does not discriminate only against those who have recently exercised the right to travel, as did the statute involved in Shapiro v. Thompson, 394 U. S. 618 (1969). The Alaska statute also discriminates among long-time residents and even native-born residents. For example, a person bom in Alaska in 1962 would have received $100 less than someone who was bom in the State in 1960. Of course the native Alaskan bom in 1962 would also receive $100 less than the person who moved to the State in 1960. The statute does not involve the kind of discrimination which the Privileges and Immunities Clause of Art. IV was designed to prevent. That Clause “was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy.\" Toomer v. Witsell, 334 U. S. 385, 395 (1948). The Clause is thus not applicable to this case. The Alaska courts considered whether the dividend distribution law violated appellants’ constitutional right to travel. The right to travel and to move from one state to another has long been accepted, yet both the nature and the source of that right have remained obscure. See Jones v. Helms, 452 U. S. 412, 417-419, and nn. 12 and 13 (1981); Shapiro v. Thompson, supra, at 629-631; United States v. Guest, 383 U. S. 745, 757-759 (1966). See also Z. Chafee, Three Human Rights in the Constitution of 1787, pp. 188-193 (1956). In addition to protecting persons against the erection of actual barriers to interstate movement, the right to travel, when applied to residency requirements, protects new residents of a state from being disadvantaged because" }, { "docid": "22959807", "title": "", "text": "right to move freely from State to State is an incident of national citizenship protected by the privileges and immunities clause of the Fourteenth Amendment against state interference. Mr. Justice Moody in Twining v. New Jersey, 211 U. S. 78, 97, stated, ‘Privileges and immunities of citizens of the United States ... are only such as arise out of the nature and essential character of the National Government, or are specifically granted or secured to all citizens or persons by the Constitution of the United States.’ And he went on to state that one of those rights of national citizenship was ‘the right to pass freely from State to State.’ Id., at 97.” Id., at 178 (Douglas, J., concurring) (emphasis and ellipsis in original). Justice Jackson was of essentially the same view. See id., at 182-184 (concurring opinion). It also should be noted that earlier decisions, beginning with Corfield v. Coryell, 6 F. Cas. 546 (No. 3,230) (CCED Pa. 1825) (Washington, J., Circuit Justice), suggested that the right to travel was a privilege and immunity of national citizenship protected by the Privileges and Immunities Clause of Art. IV. See United States v. Guest, 383 U. S. 745, 764-767 (opinion of Harlan, J.). In fact, appellee relied upon Art. IV in both his state and federal habeas corpus petitions. See n. 5, supra; supra, at 415. At the beginning of this century, Chief Justice Fuller, in dictum, identified the Fourteenth Amendment as a source of the right to travel: “Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any State is a right secured by the Fourteenth Amendment and by other provisions of the Constitution.” Williams v. Fears, 179 U. S. 270, 274. In his dissenting opinion in Shapiro v. Thompson, 394 U. S. 618, 671, Justice Harlan concluded that “the right to travel interstate is a ‘fundamental’ right which, for present purposes, should be regarded as having its source in the Due Process" }, { "docid": "22959796", "title": "", "text": "travel. Accordingly, we reject the premise on which the Court of Appeals’ holding rests. II Having rejected the claim that the Georgia statute imper-. missibly infringes on the constitutionally protected right to travel, we find no support for the conclusion that the statute violates the Equal Protection Clause. That Clause “announces a fundamental principle: the State must govern impartially. General rules that apply evenhandedly to all persons within the jurisdiction unquestionably comply with this principle.” New York City Transit Authority v. Beazer, 440 U. S. 568, 587. The Equal Protection Clause provides a basis for challenging legislative classifications that treat one group of persons as inferior or superior to others, and for contending that general rules are being applied in an arbitrary or discriminatory way. The portion of the Georgia statute at issue in this case applies equally to all parents residing in Georgia; nothing in appellee’s argument or in the record suggests that the statute has been enforced against appellee any differently than it would be enforced against anyone else who engaged in the same conduct. By its terms, it does not subject “one caste of persons to a code not applicable to another,” see n. 23, supra, nor has appellee shown that it has been arbitrarily or discriminatorily applied. Thus, neither on the face of § 74^9902, nor in its application to appellee, can we detect any violation of the constitutional requirement that the State’s administration of its laws must be impartial and evenhanded. New York City Transit Authority, supra. The characterization by the Court of Appeals and appellee of the Georgia statute as “overbroad” does not affect our conclusion. Appellee contends, and the Court of Appeals found, that Georgia has available less restrictive means to serve the legitimate purposes furthered by the felony provi sion of § 74-9902. In particular, our attention is directed to the URESA, which is said to protect the State’s interests in fiscal integrity, support of minor children, and extradition of abandoning parents. The appellant argues at length that the URESA does not provide an adequate means of enforcing the support obligations of" }, { "docid": "22436159", "title": "", "text": "state purpose,” Zobel v. Williams, 457 U. S. 55, 63 (1982). See ante, at 914. This assumption is not re quired by anything in the Equal Protection Clause; rather, “a fiill reading of Shapiro v. Thompson, 394 U. S. 618 (1969), and Vlandis v. Kline, 412 U. S. 441 (1973), reveals [that] the Court has rejected this objective only when its implementation would abridge an interest in interstate travel or migration.” Zobel v. Williams, supra, at 72 (O’Connor, J., concurring in judgment). It is unfortunate that the Court has once again failed to articulate and justify by reference to textual sources a single constitutional principle or analysis upon which it can rely in deciding cases such as this. I adhere to my belief that the Privileges and Immunities Clause of Art. IV, § 2, of the Constitution supplies the relevant basis for analysis in evaluating claims like appellees’, where the principal allegation is that the state scheme impermissibly distinguishes between state residents, allegedly imposing a relative burden on those who have more recently exercised their right to establish residence in the State. See Zobel v. Williams, 457 U. S., at 74-75 (O’Connor, J., concurring in judgment). I also continue to believe that a State’s desire to compensate its citizens for their prior contributions is “neither inherently invidious nor irrational,” either under the Court’s “right to migrate” or under some undefined, substantive component of the Equal Protection Clause. Id., at 72. This case presents one of those instances in which the recognition of state citizens’ past sacrifices constitutes a valid state interest that does not infringe any constitutionally protected interest, including the fundamental right to settle in another State which is protected by the Privileges and Immunities Clause of Art. IV, §2. See id., at 72, n. 1. II In my view, the New York veterans’ preference scheme weathers constitutional scrutiny under any of the theories propounded by the Court. The plurality acknowledges that heightened scrutiny is appropriate only if the statutory classification “penalize^],” “actually deters,” or is primarily intended to “imped[e]” the exercise of the right to travel. See ante," }, { "docid": "22959789", "title": "", "text": "those parents who left Georgia after abandoning their children, violated the Equal Protection Clause and the Privileges and Immunities Clause of Art. IV, § 2. See App. 22-23. The District Court denied relief, see id., at 28-29, but the United States Court of Appeals for the Fifth Circuit reversed. See 621 F. 2d 211 (1980). The Court of Appeals held that the statute should be subjected to strict scrutiny because it infringed the fundamental right to travel. Applying strict-scrutiny analysis, the court concluded that the state interests served by the statute, although legitimate, could be adequately protected by less drastic means; the statute therefore was invalid. In the judgment of the Court of Appeals, the State’s interest in extraditing offending parents, as well as its interest in requiring parents to support their children, was adequately served by the remedies provided in the Uniform Reciprocal Enforcement of Support Act (URESA), a version of which had been enacted in Georgia. See Ga. Code § 99-901a et seq. (1978 and Supp. 1980). Moreover, because the Court of Appeals understood the statute not to require any proof of criminal intent, it considered this feature a further indication of the statute’s unconstitutional overbreadth. The Warden appealed, and we noted probable jurisdiction. 449 U. S. 1122. In an opinion issued several months prior to the Court of Appeals’ decision, the Georgia Supreme Court had upheld the felony provision of § 74-9902 against an almost identical constitutional challenge. See Garren v. State, 245 Ga. 323, 264 S. E. 2d 876 (1980). We now resolve this conflict between the Georgia Supreme Court and the Court of Appeals by reversing the judgment of the Court of Appeals. I The Court of Appeals’ conclusion that § 74-9902 is constitutionally invalid rests entirely on the premise that the statute impairs the fundamental right of every Georgia resident to travel from Georgia to another State. It is, of course, well settled that the right of a United States citizen to travel from one State to another and to take up residence in the State of his choice is protected by the Federal" }, { "docid": "22959808", "title": "", "text": "of national citizenship protected by the Privileges and Immunities Clause of Art. IV. See United States v. Guest, 383 U. S. 745, 764-767 (opinion of Harlan, J.). In fact, appellee relied upon Art. IV in both his state and federal habeas corpus petitions. See n. 5, supra; supra, at 415. At the beginning of this century, Chief Justice Fuller, in dictum, identified the Fourteenth Amendment as a source of the right to travel: “Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any State is a right secured by the Fourteenth Amendment and by other provisions of the Constitution.” Williams v. Fears, 179 U. S. 270, 274. In his dissenting opinion in Shapiro v. Thompson, 394 U. S. 618, 671, Justice Harlan concluded that “the right to travel interstate is a ‘fundamental’ right which, for present purposes, should be regarded as having its source in the Due Process Clause of the Fifth Amendment.” See also United States v. Guest, 383 U. S., at 757-759; id., at 769-770 (opinion of Harlan, J.). Michigan v. Doran, 439 U. S. 282, 288. In his concurring opinion in Edwards v. California, supra, Justice Jackson explained this limitation on the right to travel: “The right of the citizen to migrate from state to state which, I agree with Mr. Justice Douglas, is shown by our precedents to be one of national citizenship, is not, however, an unlimited one. In addition to being sub ject to all constitutional limitations imposed by the federal government, such citizen is subject to some control by state governments. He may not, if a fugitive from justice, claim freedom to migrate unmolested, nor may he endanger others by carrying contagion about. These causes, and perhaps others that do not occur to me now, warrant any public authority in stopping a man where it finds him and arresting his progress across a state line quite as much as from place to place within the state.”" }, { "docid": "22868376", "title": "", "text": "S. 371, 390-391 (1978), or to enroll in the state university, see Vlandis v. Kline, 412 U. S. 441, 445 (1973), but our cases have not identified any acceptable reason for qualifying the protection afforded by the Clause for “the ‘citizen of State A who ventures into State B’ to settle there and establish a home.” Zobel, 457 U. S., at 74 (O’Connor, J., concurring in judgment). Permissible justifications for discrimination between residents and nonresidents are simply inapplicable to a nonresident’s exercise of the right to move into another State and become a resident of that State. What is at issue in this case, then, is this third aspect of the right to travel — the right of the newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the same State. That right is protected not only by the new arrival’s status as a state citizen, but also by her status as a citizen of the United States. That additional source of protection is plainly identified in the opening words of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;... Despite fundamentally differing views concerning the coverage of the Privileges or Immunities Clause of the Fourteenth Amendment, most notably expressed in the majority and dissenting opinions in the Slaughter-House Cases, 16 Wall. 36 (1873), it has always been common ground that this Clause protects the third component of the right to travel. Writing for the majority in the Slaughter-House Cases, Justice Miller explained that one of the privileges conferred by this Clause “is that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bond fide residence therein, with the same rights as other citizens of that State.” Id., at 80. Justice Bradley, in dissent, used even stronger language to" }, { "docid": "22440648", "title": "", "text": "Meyer v. Nebraska, 262 U.S. 390, 399-400, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). In 1958, the Court held that “the right to travel [to a foreign country] is a party of the ‘liberty’ of which the citizen cannot be deprived without the due process of law under the Fifth Amendment.” Kent v. Dulles, 357 U.S. 116, 125, 78 S.Ct. 1113, 1118, 2 L.Ed.2d 1204 (1958); followed in Aptheker v. Secretary of State, 378 U.S. 500, 505-506, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964). More recently, the Court, without specifically ascribing its source, established the right to travel interstate as a right fundamental to our Federal Union despite the absence of any specific mention thereof in the Constitution. United States v. Guest, 383 U.S. 745, 757, 759, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966); Shapiro v. Thompson, 394 U.S. 618, 629-631, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Such a right of interstate travel being more inherent in and essential to a Federal Union than the right to travel abroad established in Kent and Aptheker, we can only conclude that such right must a fortiori be an aspect of the “liberty” assured by the Due Process Clause. We do not say that the governance of the length and style of one’s hair is necessarily so fundamental as those substantive rights already found implicit in the “liberty” assurance of the Due Process Clause, requiring a “compelling” showing by the state before it may be impaired. Yet “liberty” seems to us an incomplete protection if it encompasses only the right to do momentous acts, leaving the state free to interfere with those personal aspects of our lives which have no direct bearing on the ability of others to enjoy their liberty. As the court stated in Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891): “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from ,all restraint or interference of others," }, { "docid": "22868370", "title": "", "text": "now affirm. I — ! HH The word “travel” is not found in the text of the Constitution. Yet the “constitutional right to travel from one State to another” is firmly embedded in our jurisprudence. United States v. Guest, 383 U. S. 745, 757 (1966). Indeed, as Justice Stewart reminded us in Shapiro v. Thompson, 394 U. S. 618 (1969), the right is so important that it is “assert-able against private interference as well as governmental action ... a virtually unconditional personal right, guaranteed by the Constitution to us all.” Id., at 643 (concurring opinion). In Shapiro, we reviewed the constitutionality of three statutory provisions that denied welfare assistance to residents of Connecticut, the District of Columbia, and Pennsylvania, who had resided within those respective jurisdictions less than one year immediately preceding their applications for assistance. Without pausing to identify the specific source of the right, we began by noting that the Court had long “recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement.” Id., at 629. We squarely held that it was “constitutionally impermissible” for a State to enact dura-tional residency requirements for the purpose of inhibiting the migration by needy persons into the State. We further held that a classification that had the effect of imposing a penalty on the exercise of the right to travel violated the Equal Protection Clause “unless shown to be necessary to promote a compelling governmental interest,” id., at 634, and that no such showing had been made. case argues that §11450.03 was not enacted for the impermissible purpose of inhibiting migration by needy persons and that, unlike the legislation reviewed in Shapiro, it does not penalize the right to travel because new arrivals are not ineligible for benefits during their first year of residence. California submits that, in stead of being subjected to the strictest scrutiny, the statute should be upheld if it is supported" }, { "docid": "22717419", "title": "", "text": "City of Phoenix v. Kolodziejski, 399 U. S. 204, 205, 209 (1970). Cf. Harper v. Virginia Board of Elections, supra, at 670. This is the test we apply here. B This exacting test is appropriate for another reason, never considered in Drueding: Tennessee’s dura-tional residence laws classify bona fide residents on the basis of recent travel, penalizing those persons, and only those persons, who have gone from one jurisdiction to another during the qualifying period. Thus, the dura-tional residence requirement directly impinges on the exercise of a second fundamental personal right, the right to travel. “[Fjreedom to travel throughout the United States has long been recognized as a basic right under the Constitution.” United States v. Guest, 383 U. S. 745, 758 (1966). See Passenger Cases, 7 How. 283, 492 (1849) (Taney, C. J.); Crandall v. Nevada, 6 Wall. 35, 43-44 (1868); Paul v. Virginia, 8 Wall. 168, 180 (1869); Edwards v. California, 314 U. S. 160 (1941); Kent v. Dulles, 357 U. S. 116, 126 (1958); Shapiro v. Thompson, 394 U. S. 618, 629-631, 634 (1969); Oregon v. Mitchell, 400 U. S., at 237 (separate opinon of Brennan, White, and Marshall, JJ.), 285-286 (Stewart, J., concurring and dissenting, with whom Burger, C. J., and Black-mun, J., joined). And it is clear that the freedom to travel includes the “freedom to enter and abide in any State in the Union,” id., at 285. Obviously, durational residence laws single out the class of bona fide state and county residents who have recently exercised this constitutionally protected right, and penalize such travelers directly. We considered such a durational residence requirement in Shapiro v. Thompson, supra, where the pertinent statutes imposed a one-year waiting period for interstate migrants as a condition to receiving welfare benefits. Although in Shapiro we specifically did not decide whether durational residence requirements could be used to determine voting eligibility, id., at 638 n. 21, we concluded that since the right to travel was a constitutionally protected right, “any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental" }, { "docid": "22959792", "title": "", "text": "a crime in a State and leaves the State before arrest or conviction may be extradited following “a summary and mandatory executive proceeding.” Manifestly, a person who has committed an offense against the laws of Georgia may be stopped at its borders and temporarily deprived of his freedom to travel elsewhere within or without the State. In this case, appellee’s guilty plea was an acknowledgment that he had committed a misdemeanor before he initially left Georgia for Alabama. Upon conviction of that misdemeanor, he was subject to imprisonment for a period of up to one year. Therefore, although he was not convicted of abandonment until after his first trip to Alabama, appellee’s own misconduct had qualified his right to travel interstate before he sought to exercise that right. We are aware of nothing in our prior cases or in the language of the Federal Constitution that suggests that a person who has committed an offense punishable by imprisonment has an unqualified federal right to leave the jurisdiction prior to arrest or conviction. This case differs in a significant respect from prior cases involving the validity of state enactments that were said to penalize the exercise of the constitutional right to travel. In the first decision squarely to recognize the right to travel, Crandall v. Nevada, 6 Wall. 35, the Court held that a State may not impose a tax on residents who desire to leave the State, nor on nonresidents merely passing through. In Edwards v. California, 314 U. S. 160, the Court held that a State may not make it a crime to bring a nonresident indigent person into the State. In more recent decisions, the Court has examined state statutes imposing durational residence requirements that deprived new residents of rights or benefits available to old residents, to determine whether such requirements penalized citizens for exercising their constitutional right to travel. In all of those cases, the statute at issue imposed a burden on the exercise of the right to travel by citizens whose right to travel had not been qualified in any way. In contrast, in this case," }, { "docid": "22959802", "title": "", "text": "which he had been convicted and sentenced violated both the Equal Protection Clause of the Fourteenth Amendment and the Privileges and Immunities Clause of Art. IV, §2, of the United States Constitution because it authorized enhanced punishment based solely upon the exercise of the constitutional right to travel interstate and to reside outside the State of Georgia. After an evidentiary hearing, the state habeas court denied relief and ordered appellee remanded to custody. App. 11-15. The Supreme Court of Georgia denied appellee’s application for a certificate of probable cause to appeal. Id., at 20. During the pendency of his appeal from the District Court’s order, appellee was released from custody. As the Court of Appeals noted, 621 F. 2d, at 212, n. 2, appellee’s release did not moot his claim. See Carafas v. LaVallee, 391 U. S. 234, 237-240. The Court of Appeals analyzed the statutory classification, as follows: “The statute thus creates two classes of crimes, the first a misdemeanor for child abandonment within the State, the second a felony for leaving the State after abandonment or abandonment after leaving the State. Those outside Georgia, merely by their presence outside the State, are exposed to risk of a felony conviction while Georgia residents are exposed only to risk of a misdemeanor conviction for the same actions. We find the fundamental right to travel is infringed by this classification system.” 621 F. 2d, at 212 (footnote omitted). The Court of Appeals concluded that the statutory discrimination was not justified by a compelling state interest: “We therefore find no sufficiently compelling state interest here which permits distinguishing between nonsupporting parents within or without the State of Georgia. There is no question that the statute violates equal protection. Further, even where a governmental purpose is legitimate, as here, the 'purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.’ ” Id., at 213 (footnote omitted). According to the Court of Appeals, the URESA adequately served the state interests §71^9902 was designed to further: “Georgia argues that the compelling state interests here are" }, { "docid": "22959810", "title": "", "text": "314 U. S., at 184. See Ga. Code §27-2506 (1978). In Dunn v. Blumstein, 405 U. S. 330, 334, we explained the problem presented by durational residence requirements: “Durational residence laws penalize those persons who have traveled from one place to another to establish a new residence during the qualifying period. Such laws divide residents into two classes, old residents and new residents, and discriminate against the latter . . . We have invalidated durational residence requirements that operated to deprive new residents of the right to vote, Dunn, supra, and of welfare and medical care benefits. See Shapiro v. Thompson, supra; Memorial Hospital v. Maricopa County, 415 U. S. 250. However, even though dura-tional residence requirements necessarily impinge to some extent on the right to travel, they are not automatically invalid. Memorial Hospital, supra, at 256. See, e. g., Sosna v. Iowa, 419 U. S. 393; cf. Vlandis v. Kline, 412 U. S. 441, 452-453. In its decision sustaining the validity of § 74-9902, the Georgia Supreme Court recognized this distinction: “There is an entirely obvious difference, on the one hand, between an attempt by a 'receiving state’ to preclude or discourage inward migration from 'sending states’ of persons deemed by the ‘receiving state’ to be ‘undesirables,’ ‘non-contributors’ or ‘economically burdensome persons,’ and efforts, as in the present ease, by a ‘sending state’ to bring persons accused of crimes back from ‘receiving states’ to face criminal trial and punishment in the ‘sending state.’ Persons, including indigents and other migrants, have a right of free travel. ... On the other hand, persons charged with the commission of crimes shall be delivered up to the state having jurisdiction of the crime. ... A person charged in Georgia with commission of a crime who has left Georgia and entered another state cannot be said to have a constitutionally protected right of free travel in interstate commerce that can be asserted to bar prosecution for the Georgia offense.” Garren v. State, 245 Ga. 323, 324-325, 264 S. E. 2d 876, 877-878 (1980) (citations omitted). The California Supreme Court recognized the same distinction in" }, { "docid": "22959809", "title": "", "text": "Clause of the Fifth Amendment.” See also United States v. Guest, 383 U. S., at 757-759; id., at 769-770 (opinion of Harlan, J.). Michigan v. Doran, 439 U. S. 282, 288. In his concurring opinion in Edwards v. California, supra, Justice Jackson explained this limitation on the right to travel: “The right of the citizen to migrate from state to state which, I agree with Mr. Justice Douglas, is shown by our precedents to be one of national citizenship, is not, however, an unlimited one. In addition to being sub ject to all constitutional limitations imposed by the federal government, such citizen is subject to some control by state governments. He may not, if a fugitive from justice, claim freedom to migrate unmolested, nor may he endanger others by carrying contagion about. These causes, and perhaps others that do not occur to me now, warrant any public authority in stopping a man where it finds him and arresting his progress across a state line quite as much as from place to place within the state.” 314 U. S., at 184. See Ga. Code §27-2506 (1978). In Dunn v. Blumstein, 405 U. S. 330, 334, we explained the problem presented by durational residence requirements: “Durational residence laws penalize those persons who have traveled from one place to another to establish a new residence during the qualifying period. Such laws divide residents into two classes, old residents and new residents, and discriminate against the latter . . . We have invalidated durational residence requirements that operated to deprive new residents of the right to vote, Dunn, supra, and of welfare and medical care benefits. See Shapiro v. Thompson, supra; Memorial Hospital v. Maricopa County, 415 U. S. 250. However, even though dura-tional residence requirements necessarily impinge to some extent on the right to travel, they are not automatically invalid. Memorial Hospital, supra, at 256. See, e. g., Sosna v. Iowa, 419 U. S. 393; cf. Vlandis v. Kline, 412 U. S. 441, 452-453. In its decision sustaining the validity of § 74-9902, the Georgia Supreme Court recognized this distinction: “There is an" }, { "docid": "22049806", "title": "", "text": "impelled to “ascribe the source of this right to travel interstate to a particular constitutional provision.” Shapiro v. Thompson, 394 U. S. 618, 630 (1969). It suffices that: “‘The constitutional right to travel from one State to another . . . occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized. “ ‘. . . [T]he right finds no explicit mention in the Constitution. The reason, it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.”’ Id., at 630-631, quoting United States v. Guest, 383 U. S. 745, 757-758 (1966). As is clear from our cases, the right to travel achieves its most forceful expression in the context of equal protection analysis. But if, finding no citable passage in the Constitution to assign as its source, some might be led to question the independent vitality of the principle of free interstate migration, I find its unmistakable essence in that document that transformed a loose confederation of States into one Nation. A scheme of the sort adopted by Alaska is inconsistent with the federal structure even in its prospective operation. A State clearly may undertake to enhance the advantages of industry, economy, and resources that make it a desirable place in which to live. In addition, a State may make residence within its boundaries more attractive by offering direct benefits to its citizens in the form of public services, lower taxes than other States offer, or direct distributions of its munificence. Through these means, one State may attract citizens of other States to join the numbers of its citizenry. That is a healthy form of rivalry: It inheres in the very idea of maintaining the States as independent sovereigns within a larger framework, and it is fully — indeed, necessarily — consistent with the Framers’ further idea of joining these" } ]

[ { "docid": "23032379", "title": "", "text": "recognized that “the ‘mandate rule’ requires the district court to adhere to our commands on remand.” Young, 66 F.3d at 835. Accord Cornelius, 968 F.2d at 705 (“The sentencing court must, however, , adhere to any limitations imposed on its function at resentencing by the appellate court.”). In United States v. Moored, 38 F.3d 1419 (6th Cir.1994), we instructed that ' . [Ujpon remand of a case for further proceedings after a decision by the appellate court, the trial court must proceed in accordance with the mandate and the law of the case as established on appeal. The trial court must implement both the letter and the spirit of the mandate, taking into account the appellate court’s opinion and the circumstances it embraces. Id. at 1421 (internal quotations omitted). Here, we issued an order that specifically limited the scope of the remand to a consideration of whether the evidence supported Moore’s § 924(e) conviction. A district court violates the mandate rule by exceeding the scope of the remand order. See, e.g., United States v. Cassity, 720 F.2d 451, 458-59 (6th Cir.1983). Accord United States v. Santonelli 128 F.3d 1233, 1237-38 (8th Cir.1997); United States v. Polland, 56 F.3d 776, 778 (7th Cir.1995). In Cassity, Santonelli .and Polland, the appellate court issued a limited remand and required adherence to that limited remand in a subsequent appeal. For example, in Cassity, this court limited its remand order to reconsideration of a Fourth Amendment issue. On remand, the district court not only resolved that issue, but also considered a retroactivity issue. This court vacated the district court’s retroactivity determination, concluding that the district court improperly reached that issue. Cassity, 720 F.2d at 459. Similarly, in Santonelli the appellate court limited its remand order to reconsideration of the amount of drugs the defendant possessed. The district court properly followed the mandate. On appeal, both the government and the defendant argued that the district court erred by not considering additional issues. In affirming the district court, the appellate court emphasized the limited nature of its remand order and rejected arguments that the district court could" } ]

[ { "docid": "23287101", "title": "", "text": "specific direction should generally treat a vacation and remand of a sentence as a de novo resentencing or as a limited proceeding in which the sentencing court revisits only the particular issues identified as grounds for remand. See Quintieri, 306 F.3d at 1228 n. 6 (collecting cases on both sides of the circuit split). In those circuits that have adopted a de novo sentencing default rule, resentencing is de novo absent explicit direction otherwise from the remanding appellate court. See, e.g., United States v. Jennings, 83 F.3d 145, 151 (6th Cir.1996) (creating a default rule of de novo resentencing), amended by 96 F.3d 799 (6th Cir.1996); United States v. Cornelius, 968 F.2d 703, 705-06 (8th Cir.1992) (same); United States v. Ponce, 51 F.3d 820, 826 (9th Cir.1995) (same); United States v. Stinson, 97 F.3d 466, 469 (11th Cir.1996) (same). Other circuits follow a default rule of limited resentencing, in which resentencing is not considered to be de novo unless expressly designated as such. In these circuits, “upon a resentencing occasioned by a remand, unless the court of appeals expressly directs otherwise, the district court may consider only such new arguments or new facts as are made newly relevant by the court of appeals’ decision— whether by the reasoning or by the result.” Whren, 111 F.3d at 960; accord United States v. Wallace, 573 F.3d 82, 88 & n. 5 (1st Cir.2009); United States v. Lee, 358 F.3d 315, 321 (5th Cir.2004); United States v. Husband, 312 F.3d 247, 250-52 (7th Cir.2002). The Second Circuit splits the difference, holding as follows: [W]hen a sentencing results from a vacatur of a conviction, we in effect adhere to the de novo default rule.... But when a resentencing is necessitated by one or more specific sentencing errors, unless correction of those errors would undo the sentencing calculation as a whole ..., we in effect adhere to the ... default rule of limited resentencing. Quintieri, 306 F.3d at 1228 n. 6 (internal citations omitted). We do not need to determine which default rule is appropriate here because it is well established that when the remand" }, { "docid": "23032375", "title": "", "text": "occurs in many cases, that the remand would be a limited one which would not allow the district judge to make a de novo review of the sentencing procedure.” Duso, 42 F.3d at 368. Therefore, the question here is whether our remand order was general or limited. If we issued a general remand, then the district court retained the authority to consider the relevant conduct and enhancement issues. However, if we. issued a limited remand, then the district court exceeded our remand order by considering those issues. The interpretation of the mandate is a legal issue which we review de novo. Pennington v. Doherty, 110 F.3d 502, 506 (7th Cir.1997). In the absence of an explicit limitation, the remand order is presumptively a general one. As we held in United States v. Jennings, 83 F.3d 145 (6th Cir.1996), “[o]n remand, the only constraint under which the District Court must operate, for the purposes of resentencing, is the remand order itself. Where the remand does not limit the District Court’s review, sentencing is to be de novo.” Id. at 151. See also United States v. Moored, 38 F.3d 1419, 1422 (6th Cir.1994) (“absent explicit limitations in the appellate court’s mandate, an order vacating a sentence and remanding the case for resentencing directs the sentencing court to begin anew, so that fully de novo resentencing is entirely appropriate _”) (quotation omitted). Consequently, where an appellate court simply vacates a sentence and remands to the district court for “resentencing,” that order is considered a general one that allows the district court to resentence the defendant de novo. See, e.g., Young, 66 F.3d at 836; United States v. Caterino, 29 F.3d 1390, 1394-95 (9th Cir.1994); United States v. Cornelius, 968 F.2d 703, 705-06 (8th Cir.1992). In Young, Caterino, and Cornelius, the appellate courts issued orders vacating the defendants’ sentences or reversing the defendants’ convictions and remanding to the district court for resentencing. In each instance, on a subsequent appeal, the court construed its remand order as general rather than specific because the order contained no limiting language. ■ It simply directed the district court" }, { "docid": "22934186", "title": "", "text": "problem discerned on appeal and to provide an efficient and sensible solution”). Traditionally, the mandate rule instructs that the district court is without authority to expand its inquiry beyond the matters forming the basis of the appellate court’s remand. See United States v. Hicks, 146 F.3d 1198, 1200 (10th Cir.1998) (mandate rule “generally requires trial court conformity with the articulated appellate remand” (citation omitted)). Remands, however, can be either general or limited in scope. Limited remands explicitly outline the issues to be addressed by the district court and create a narrow framework within which the district court must operate. See, e.g., Moore, 131 F.3d at 598 (“[A] limited remand constrains the district court’s resentencing authority to the issue or issues remanded.”). General remands, in contrast, give district courts authority to address all matters as long as remaining consistent with the remand. Id. at 597. In essence, the mandate rule is a specific application of the law-of-the-case doctrine. See Jones v. Lewis, 957 F.2d 260, 262 (6th Cir.), cert. denied, 506 U.S. 841, 113 S.Ct. 125, 121 L.Ed.2d 80 (1992) (explaining that “the trial court may consider those issues not decided expressly or impliedly by the appellate court or a previous trial court”); United States v. Bell, 988 F.2d 247, 251 (1st Cir.1993). Under the doctrine of the law of the case, determinations of the court of appeals of issues of law are binding on both the district court on remand and the court of appeals upon subsequent appeal. See United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994). The courts of appeals differ on their approach to remands for resentencing under the Sentencing Guidelines. A majority of the circuits that have spoken on this issue, including this one, follow a basic rule that a district court can review sentencing matters de novo unless the remand specifically limits the lower court’s inquiry. See Moore, 131 F.3d at 598; United States v. Caterino, 29 F.3d 1390, 1394-95 (9th Cir.1994); United States v. Cornelius, 968 F.2d 703 (8th Cir.1992); United States v. Smith, 930 F.2d 1450, 1456 (10th Cir.), cert. denied, 502" }, { "docid": "23032378", "title": "", "text": "remand order did not expressly limit the district court to correcting the vulnerable victim adjustment.” Id. Thus, the district court could resentence the defendant de novo. Id. at 1395. Finally, in Cornelius, the district court interpreted the appellate court’s remand order as prohibiting it from consider new evidence regarding the defendant’s status as an armed career criminal. The remand order announced that “we reverse the district court’s determination that Cornelius was not an armed career criminal ... and remand for resentencing.” Cornelius, 968 F.2d at 705. The appellate court in commenting on its remand order concluded that “[w]e did not limit the district court’s further determination of whether Cornelius was an armed career criminal.” Id. at 706. Each one of those cases involved a remand order that simply vacated or reversed the sentence imposed by the district court and remanded for resentencing. The orders placed no limitations on the scope of the remand. As such, those orders were general rather than limited. Although the mandates in Young and Cornelius were general, even those two courts recognized that “the ‘mandate rule’ requires the district court to adhere to our commands on remand.” Young, 66 F.3d at 835. Accord Cornelius, 968 F.2d at 705 (“The sentencing court must, however, , adhere to any limitations imposed on its function at resentencing by the appellate court.”). In United States v. Moored, 38 F.3d 1419 (6th Cir.1994), we instructed that ' . [Ujpon remand of a case for further proceedings after a decision by the appellate court, the trial court must proceed in accordance with the mandate and the law of the case as established on appeal. The trial court must implement both the letter and the spirit of the mandate, taking into account the appellate court’s opinion and the circumstances it embraces. Id. at 1421 (internal quotations omitted). Here, we issued an order that specifically limited the scope of the remand to a consideration of whether the evidence supported Moore’s § 924(e) conviction. A district court violates the mandate rule by exceeding the scope of the remand order. See, e.g., United States v. Cassity," }, { "docid": "22303383", "title": "", "text": "Bethea v. Levi Strauss & Co., 916 F.2d 453, 456-57 (8th Cir.1990). Under this doctrine, “a decision in a prior appeal is followed in later proceedings unless a party introduces substantially different evidence, or the prior decision is clearly erroneous and works a manifest injustice.” United States v. Callaway, 972 F.2d 904, 905 (8th Cir.1992) (per curiam). “Law of the case terminology is often employed to express the principle that inferior tribunals are bound to honor the mandate of superior courts within a single judicial system.” 18 Wright, Miller & Cooper, supra, § 4478 at 792. “If there are no explicit or implicit instructions to hold further proceedings [on remand], a district court has no authority to re-examine an issue settled by a higher court.” Bethea, 916 F.2d at 456. When an appellate court remands a case to the district court, all issues decided by the appellate court become the law of the case, id., and the district court on remand must “adhere to any limitations imposed on its function at resentencing by the appellate court.” United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992) (citing United States v. Prestemon, 953 F.2d 1089 (8th Cir.1992) (trial court could not consider new bases for downward departure where remand was limited to resentencing within the applicable guideline range)). “Under the law of the case doctrine, a district court must follow our mandate, and we retain the authority to decide whether the district court scrupulously and fully carried out our mandate’s terms.” Jaramillo v. Burkhart, 59 F.3d 78, 80 (8th Cir.1995). In Bartsh I, 985 F.2d at 934-35, we explicitly affirmed the original sentencing court’s upward departure and subsequently remanded the case in Bartsh II, 7 F.3d at 114, “for the limited purpose” of recalculating the amount of restitution due. Bartsh does not challenge the district court’s conclusion that our previous decision affirming his sentence is law of the case. He asserts, however, that the law of the case doctrine should not have precluded further review of this issue because he has introduced “substantially different” evidence on remand and because our prior" }, { "docid": "23032380", "title": "", "text": "720 F.2d 451, 458-59 (6th Cir.1983). Accord United States v. Santonelli 128 F.3d 1233, 1237-38 (8th Cir.1997); United States v. Polland, 56 F.3d 776, 778 (7th Cir.1995). In Cassity, Santonelli .and Polland, the appellate court issued a limited remand and required adherence to that limited remand in a subsequent appeal. For example, in Cassity, this court limited its remand order to reconsideration of a Fourth Amendment issue. On remand, the district court not only resolved that issue, but also considered a retroactivity issue. This court vacated the district court’s retroactivity determination, concluding that the district court improperly reached that issue. Cassity, 720 F.2d at 459. Similarly, in Santonelli the appellate court limited its remand order to reconsideration of the amount of drugs the defendant possessed. The district court properly followed the mandate. On appeal, both the government and the defendant argued that the district court erred by not considering additional issues. In affirming the district court, the appellate court emphasized the limited nature of its remand order and rejected arguments that the district court could consider issues beyond those specified in the limited remand. Santonelli, 128 F.3d at 1237-38. As in Santonelli in Polland the appellate court issued a remand order limited to reconsideration of an enhancement for obstruction of justice, and the district followed that remand order. In a subsequent appeal, the defendant argued that the district court can always consider other issues on remand. In rejecting the defendant’s position, the appellate court asserted its power to issue limited remands and stressed that district courts must follow those limited remands. Polland, 56 F.3d at 777-78. As in Cassity, Santonelli, andPolland, we issued a limited remand in Moore II, and we expected the district court and the parties to adhere to its limitations as required by the mandate rule. While we recognize that this court has in the past and will continue in the future to issue general remands, there are times when judicial economy favors limited remands. As the Santonelli court reasoned: Repetitive hearings, followed by additional appeals, waste judicial resources and place additional burdens on parole officers and" }, { "docid": "14580021", "title": "", "text": "district court unconstitutionally increased their sentences when it found by a preponderance of the evidence that the offenses involved “at least 1 KG but less than 3 KG” of heroin under U.S.S.G. § 2Dl.l(e)(4) and that they obstructed justice pursuant to U.S.S.G. § 3C1.1. Mrs. Lang contends her sentence was .further increased unconstitutionally when the court found she had abused a position of trust pursuant to U.S.S.G. § 3B1.3. Although the Langs challenged the district court’s base offense level calculations at their original sentencing hearing, they failed to raise a Sixth Amendment objection. However, they properly preserved their Sixth Amendment claims when they raised the issue upon resentencing. We must first determine whether our review is governed by the harmless error standard of Fed.R.Crim.P. 52(a) or the plain error standard of Rule 52(b). Because of the mandate rule, which governs here, we are persuaded our review is for harmless error. As we have made clear, where the appellate court has not specifically limited the scope of the remand, the district court generally has discretion to expand the resentencing beyond the sentencing error causing the reversal. See United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992). United States v. Moore, 83 F.3d 1231, 1234 (10th Cir.1996) (footnote omitted). Looking at the mandate in Lang I, we see nothing specifically limiting the scope of remand so as to prevent the district court from considering the Langs’ Sixth Amendment claim at resentencing. Our mandate stated: “Based on the foregoing, we REVERSE the district court’s downward departures for both Langs, remanding both cases for resentencing pursuant to 18 U.S.C. § 3742(f)(2)(B), and AFFIRM the decision of the district court on the remaining issues.” Lang I, 364 F.3d at 1224. This general mandate does not contain the type of specificity necessary to limit a district court’s authority to resentence on remand. See United States v. Hicks, 146 F.3d 1198, 1200-01 (10th Cir.1998). Moreover, although the mandate rule “generally requires trial court conformity with the articulated appellate remand, [it] is a discretion-guiding rule subject to" }, { "docid": "3762374", "title": "", "text": "O’Dell IV Contained a Limited Remand. In Moore, 131 F.3d at 598, we cited language from three different cases as examples of general mandates. In United States v. Young, 34 F.3d 500, 505 (7th Cir.1994), the court considered the scope of this mandate: “[w]e therefore vacate the district court’s sentence and remand the case for resentencing consistent with this opinion.” Next, in United States v. Caterino, 957 F.2d 681, 684 (9th Cir.1992), the Ninth Circuit analyzed this mandate: “[t]he district court erred by adding multiple vulnerable victim adjustments to Appellantfs] offense level under the Guidelines. We therefore VACATE ... [Defendant’s] sentence[ ] and REMAND for resentencing.” Finally, in United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992), the Eighth Circuit considered this order: “we reverse the district court’s determination that Cornelius was not an armed career criminal under §§ 924(e) and remand for resentenc-ing.” As we explained, “[e]aeh of these three mandates was a general mandate because each one of these cases involved a remand order that simply vacated or reversed the sentence imposed by the district court and remanded for re-sentencing.” Moore, 131 F.3d at 599. Our Moore decision also discussed several cases in which courts issued limited remands. 131 F.3d at 598. In United States v. Polland (Polland I), 994 F.2d 1262, 1271 (7th Cir.1993), the Seventh Circuit wrote: “[f]or the foregoing reasons, the conviction is AFFIRMED, the sentence is VACATED, and the case is REMANDED for resentencing on the issue of obstruction of justice.” See United States v. Polland (Polland II), 56 F.3d 776, 778 (7th Cir.1995) (finding that the language from Polland I was a limited mandate). Likewise, in United States v. Cassity (Cassity I), 631 F.2d 461, 466 (6th Cir.1980), we wrote: “[t]he judgments of conviction are vacated and the cases are remanded to the district court for hearings on the suppression issue.... The court shall order a new trial for, and grant the suppression motion of, each appellant whose legitimate expectations of privacy are found to have been violated by the beeper surveillance.” See United States v. Cassity (Cassity II), 720 F.2d 451," }, { "docid": "22179072", "title": "", "text": "and b) whether this court’s mandate to the district court was so narrow in scope as to preclude the district court from considering the loss issue. The law of the case doctrine and the mandate rule generally preclude a lower court from reconsidering an issue expressly or impliedly decided by a superior court. However, these principles are not without exception. “Even where, as here, an appellate court’s mandate does not contemplate resurrecting an issue on remand, the trial court may still possess some limited discretion to reopen the issue in very special situations.” Bell, 988 F.2d at 250-51. In Petition of United States Steel Corp., 479 F.2d 489, 494 (6th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 71, 38 L.Ed.2d 110 (1973), this circuit explained that the law of the case doctrine dictates that issues, once decided, should be reopened only in limited circumstances, e.g., where there is “substantially different evidence raised on subsequent trial; a subsequent contrary view of the law by the controlling authority; or a clearly erroneous decision which would work a manifest injustice.” (citing White v. Murtha, 377 F.2d 428, 431-432 (5th Cir.1967)). Accord United States v. Rivera-Martinez, 931 F.2d 148 (1st Cir.), cert. denied, — U.S.—, 112 S.Ct. 184, 116 L.Ed.2d 145 (1991). In addition to those exceptions outlined by the Sixth Circuit in Petition of United States Steel Corp., several circuits have given broad discretion to the district court to reconsider sentencing factors on a sentencing remand. For example, in United States v. Smith, 930 F.2d 1450, 1456 (10th Cir.), cert. denied, — U.S. —, 112 S.Ct. 225, 116 L.Ed.2d 182 (1991), the court stated that absent explicit limitations in the appellate court’s mandate, an order vacating a sentence and remanding the case for resentencing “directs the sentencing court tó begin anew, so that ‘fully de novo resentencing’ is entirely appropriate.... The law of the case doctrine and the cases cited by Mr. Smith are inapposite, given this court’s vacation of his initial sentence.” See also United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992) (“Once a sentence has been vacated or" }, { "docid": "3762373", "title": "", "text": "1421 (6th Cir.1994), this Court ex plained that to determine whether a remand is limited or general, one should look to the purpose of the rule — encouraging finality and discouraging wasteful litigation — and “the spirit of the mandate, taking into account the appellate court’s opinion and the circumstances it embraces.” See also Campbell, 168 F.3d at 266 (noting that mandates should be viewed in the context of the entire opinion). O’Dell argues that the district court mistakenly construed the O’Dell TV mandate as limited. That mandate read: With respect to the government’s appeal in Case No. 99-6153, we hold that the district court’s finding that O’Dell successfully established his eligibility for the protection of the “safety valve” of 18 U.S.C. §§ 3553(f) and USSG §§ 5C1.2 was clearly erroneous. Thus, we VACATE the judgment of sentence entered by district court and REMAND for re-sentencing without application of the safety valve. 247 F.3d at 687. According to O’Dell, the trial court erroneously interpreted this text as precluding any consideration of his new arguments. B. O’Dell IV Contained a Limited Remand. In Moore, 131 F.3d at 598, we cited language from three different cases as examples of general mandates. In United States v. Young, 34 F.3d 500, 505 (7th Cir.1994), the court considered the scope of this mandate: “[w]e therefore vacate the district court’s sentence and remand the case for resentencing consistent with this opinion.” Next, in United States v. Caterino, 957 F.2d 681, 684 (9th Cir.1992), the Ninth Circuit analyzed this mandate: “[t]he district court erred by adding multiple vulnerable victim adjustments to Appellantfs] offense level under the Guidelines. We therefore VACATE ... [Defendant’s] sentence[ ] and REMAND for resentencing.” Finally, in United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992), the Eighth Circuit considered this order: “we reverse the district court’s determination that Cornelius was not an armed career criminal under §§ 924(e) and remand for resentenc-ing.” As we explained, “[e]aeh of these three mandates was a general mandate because each one of these cases involved a remand order that simply vacated or reversed the sentence imposed" }, { "docid": "3762376", "title": "", "text": "459 (6th Cir.1983) (holding that the mandate in Cassity I was a limited mandate). The difference between the limited mandates and the general mandates is the presence of limiting language. Moore, 131 F.3d at 598 (explaining that in each of the three limited remand examples discussed, “on a subsequent appeal, the Court construed its remand order as general rather than specific because the order contained no limiting language”). The O’Dell IV mandate, however, specifically instructed the court to “resentenc[e] without application of the safety valve.” 247 F.3d at 687. Therefore, based on the distinction demonstrated in Moore between general and limited mandates, O’Dell IV contained a limited mandate. Additionally, Moore highlighted the Eighth Circuit’s opinion in United States v. Byrne, 83 F.3d 984 (8th Cir.1996), aff'd sub. nom. United States v. Santonelli, 128 F.3d 1233 (8th Cir.1997), as another example of a limited mandate. The Eighth Circuit phrased its mandate this way: “[w]e affirm Santonelli’s conviction on all counts, vacate his sentence and remand his case to the district court for resentencing.” Id. at 994. Significantly, according to the Eighth Circuit, Byrne was a limited mandate despite its general phrasing because the language “must be read with the analysis offered in the opinion.” United States v. Santonelli, 128 F.3d at 1237-38 (8th Cir.1997). Thus, context matters. A key circumstantial factor indicates that O’Dell IV contained a limited mandate. The government not only argued that the court should have imposed a five-year sentence, it also argued alternatively that a sentence below twenty-four months was error. Yet we found it unnecessary to address the latter contention. O’Dell IV, 247 F.3d at 675. If we intended a general remand and a de novo sentencing, it would have made sense to address the government’s alternative argument. O’Dell argues that district courts may consider issues beyond the scope of a limited remand “ Vhere there is substantially different evidence raised on subsequent trial; a subsequent contrary view of the law by the controlling authority; or a clearly erroneous decision which would work a manifest injustice.’ ” Campbell, 168 F.3d at 269 (quoting Moored, 38 F.3d" }, { "docid": "14580022", "title": "", "text": "expand the resentencing beyond the sentencing error causing the reversal. See United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992). United States v. Moore, 83 F.3d 1231, 1234 (10th Cir.1996) (footnote omitted). Looking at the mandate in Lang I, we see nothing specifically limiting the scope of remand so as to prevent the district court from considering the Langs’ Sixth Amendment claim at resentencing. Our mandate stated: “Based on the foregoing, we REVERSE the district court’s downward departures for both Langs, remanding both cases for resentencing pursuant to 18 U.S.C. § 3742(f)(2)(B), and AFFIRM the decision of the district court on the remaining issues.” Lang I, 364 F.3d at 1224. This general mandate does not contain the type of specificity necessary to limit a district court’s authority to resentence on remand. See United States v. Hicks, 146 F.3d 1198, 1200-01 (10th Cir.1998). Moreover, although the mandate rule “generally requires trial court conformity with the articulated appellate remand, [it] is a discretion-guiding rule subject to exception in the interests of justice.” Moore, 83 F.3d at 1234. We recognized in Moore that the mandate rule is not a jurisdictional limitation, thereby allowing “some flexibility in exceptional circumstances.” Id. at 1234-35. We also noted that “a dramatic change in controlling legal authority” might represent such an exceptional circumstance. Id. at 1234. The Blakely decision constituted a dramatic change in the legal landscape, arguably foretelling the constitutional analysis in Booker. For these reasons, we conclude the Langs’ Sixth Amendment claim was properly before the district court at resentencing. Because the Langs preserved that issue, we will review their claim for harmless error under Rule 52(a). Rule 52(a) provides that “[a]ny error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” Fed.R.CRIm.P. 52(a). The district court erred at the resentencing, albeit unknowingly, when it found that the Langs’ offenses involved between one and three kilograms of heroin and that they obstructed justice, and then sentenced them on the basis of those facts not found by a jury. Booker, — U.S." }, { "docid": "23446154", "title": "", "text": "Cir.1994). As a consequence, the court on remand has the discretion to entertain evidence that could have been presented at the original sentencing even on issues that were not the specific subject of the remand. See United States v. Ponce, 51 F.3d 820, 826 (9th Cir.1995). This is consistent with the parameters of what has been labeled “the mandate rule”: where the appellate court has not specifically limited the scope of the remand, the district court generally has discretion to expand the resentencing beyond the sentencing error causing the reversal. See United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992). The First Circuit has explained that the mandate rule, which generally requires trial court conformity with the articulated appellate remand, is a discretion-guiding rule subject to exception in the interests of justice. United States v. Bell, 988 F.2d 247, 251 (1st Cir.1993). The Fourth Circuit has summarized these exceptional circumstances as: (1) a dramatic change in controlling legal authority; (2) significant new evidence that was not earlier obtainable through due diligence but has since come to light; or (3) that blatant error from the prior sentencing decision would result in serious injustice if uncorrected. United States v. Bell, 5 F.3d 64, 67 (4th Cir.1993). Most importantly, the First Circuit further explained that the mandate rule is a rule of policy and practice, not a jurisdictional limitation, which thus allows some flexibility in exceptional circumstances. Bell, 988 F.2d at 251. These cases demonstrate that a district court, following the appellate vacation of a sentence, possesses the inherent discretionary power to expand the scope of the resen-tencing beyond the issue that resulted in the reversal and vacation of sentence. It follows, then, that where the district court itself ordered the vacation, it has the discretion to determine the scope of the resentencing. Because it has this discretionary power, the district court necessarily has the jurisdiction to order de novo resentencing on any or all issues. The district court thus erred when it held that the limited purpose of Moore’s original §" }, { "docid": "22308242", "title": "", "text": "1395-96 (9th Cir.1994); see also United States v. Pimentel, 34 F.3d 799, 800 (9th Cir.1994). Subsequent appellate panels “presume that this general practice was followed unless there is clear evidence to the contrary.” Caterino, 29 F.3d at 1395. On remand, the district court may consider any matter relevant to the sentencing. Id. (citing United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992) (resentencing on remand is de novo)). A district court may not, however, begin anew following a limited remand. Caterino, 29 F.3d at 1394. The propriety of the district court’s de novo sentencings on remand therefore turns on whether “the district court’s authority was abridged by any express or implied limits in the remand order.” Id. The critical language in the memorandum disposition reads: “Martinez compels us to vacate the sentences, because the district court erred in departing from the guidelines based on the quantity of drugs involved. Defendants’ sentences should be recalculated accordingly. AFFIRMED, except that the SENTENCES are VACATED AND REMANDED.” Had the court sought to limit the scope of the district court’s authority on remand, it could easily have done so. Instead, the court stated that the sentences were to be “recalculated.” This language does not amount to “clear evidence” of a limited remand. Caterino, 29 F.3d at 1395. The district court did not err in resentencing Ponce and MeTague without regard to its previous determinations. Monroy contends that the resentencing violated the Double Jeopardy Clause. This argument was rejected in Caterino. “[A] prisoner ‘has no legitimate expectation of finality in the original sentence when he has placed those sentences in issue by direct appeal and has not completed serving a valid sentence.’ ” Id. at 1397 (quoting United States v. Andersson, 813 F.2d 1450, 1461 (9th Cir.1987)). Monroy also asserts a due process argument. In the context of resentencing, the Due Process Clause prohibits courts from: (1) increasing a sentence as punishment for pursuing a successful appeal; or (2) refusing to credit a defendant for time served pursuant to the original conviction or sentence. See generally North Carolina v. Pearce, 395 U.S. 711, 89" }, { "docid": "5671558", "title": "", "text": "report; nonetheless, a question remains: what is the district court’s responsibility in addressing objections to a new and different presentence report prepared for a defendant’s resentencing? This court has clearly stated that on remand following a direct appeal, a district court can consider de novo any arguments regarding sentencing if the remand order does not limit its review. See United States v. Jennings, 83 F.3d 145, 151 (6th Cir.1996) (finding that “[t]he only constraint under which the district court must operate, for the purposes of resen-tencing, is the remand order itself. Where the remand does not limit the District Court’s review, sentencing is to be de novo.”). A majority of circuits agree with a de novo approach to resentencing. See, e.g., United States v. Caterino, 29 F.3d 1390, 1394-95 (9th Cir.1994); United States v. Cornelius, 968 F.2d 703 (8th Cir. 1992); United States v. Smith, 930 F.2d 1450, 1456 (10th Cir.1991); United States v. Sanchez Solis, 882 F.2d 693, 699 (2d Cir.1989). The policy underlying the presumption of de novo resentencing is to give the district court discretion in balancing all the competing elements of the sentencing calculus. See United States v. Campbell, 168 F.3d 263, 265 (6th Cir.), cert. denied, — U.S. -, 120 S.Ct. 195, 145 L.Ed.2d 164 (1999). Considering the foregoing, had this been a general remand after a direct appeal, the district court would have been obligated to consider Saikaly’s objections to the presen-tence report. This case, however, arose from a § 2255 motion, in which the district court ordered the probation department to prepare “a new presentence form.” The district court was not operating from an order of remand from the court of appeals, as in the above-mentioned cases. The same concerns apply at resen-tencing whether it occurs following direct appeal or a § 2255 motion. In the context of a § 2255 motion, this court has held that a district court can apply an enhancement to a drug sentence when resentencing a defendant after vacating a § 924(c) conviction. See Pasquarille, 130 F.3d at 1222. The Pasquarille court noted: It is clear that the" }, { "docid": "23032376", "title": "", "text": "novo.” Id. at 151. See also United States v. Moored, 38 F.3d 1419, 1422 (6th Cir.1994) (“absent explicit limitations in the appellate court’s mandate, an order vacating a sentence and remanding the case for resentencing directs the sentencing court to begin anew, so that fully de novo resentencing is entirely appropriate _”) (quotation omitted). Consequently, where an appellate court simply vacates a sentence and remands to the district court for “resentencing,” that order is considered a general one that allows the district court to resentence the defendant de novo. See, e.g., Young, 66 F.3d at 836; United States v. Caterino, 29 F.3d 1390, 1394-95 (9th Cir.1994); United States v. Cornelius, 968 F.2d 703, 705-06 (8th Cir.1992). In Young, Caterino, and Cornelius, the appellate courts issued orders vacating the defendants’ sentences or reversing the defendants’ convictions and remanding to the district court for resentencing. In each instance, on a subsequent appeal, the court construed its remand order as general rather than specific because the order contained no limiting language. ■ It simply directed the district court to resentence the defendant. For example, in Young, the defendant appealed his sentence twice. On his third appeal, he again challenged his sentence contending that the district court exceeded the scope of the remand. In rejecting the defendant’s challenge, the appellate court reiterated its remand order which stated that “[w]e therefore vacate the district court’s sentence and remand the ease for resentencing consistent with this opinion.” Young, 66 F.3d at 836. After restating its remand order, the appellate court declared that “[o]ur order in no way constrained the scope of the issues the district court could consider on resen-tencing_” Id. Similarly, in Caterino, the defendant challenged the district court’s authority to consider issues outside the remand order. The appellate court rejected the defendant’s contention, noting that it had issued the following general remand order: “[T]he district court erred by adding multiple vulnerable victim adjustments to Appellant’s] offense level under the Guidelines. We therefore VACATE ... Caterino[’s] sentence[] and REMAND for resentencing.” Caterino, 29 F.3d at 1394 (alterations in original). According to the appellate court, “[t]his" }, { "docid": "17643231", "title": "", "text": "or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment decree, or order, or require such further proceedings to be had as may be just under the circumstances, we have the power to limit a remand to specific issues or to order complete resen-tencing. See United States v. Garren, 893 F.2d 208, 211-12 (9th Cir.1989). Two related principles, the mandate rule and the law of the case doctrine, prohibit a district court from revisiting certain issues on remand. The mandate rule requires a lower court to adhere to the commands of a higher court on remand. See, e.g., In re Continental Illinois Securities Litigation, 985 F.2d 867, 869 (7th Cir.1993) (Mandamus can be used to “assure that a lower court complies with the spirit as well as the letter of the mandate issued to that court by a higher court.”)- In Polland I we specifically limited our mandate to resentencing on the obstruction of justice enhancement. 994 F.2d at 1271. We have previously held that a similarly worded mandate prevented the district court from reconsidering other issues at the resentencing hearing. United States v. Soto, 48 F.3d 1415, 1419 n. 10 (7th Cir.1995); see also United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994) (recognizing that a mandate can limit issues for resentencing); United States v. Jones, 36 F.3d 1068, 1069 (11th Cir.1994) (same); United States v. Pimentel, 34 F.3d 799, 800 (9th Cir.1994) (mandate limited resentencing to one issue), cert. denied, - U.S. -, 115 S.Ct. 777, 130 L.Ed.2d 671 (1995); United States v. Bell, 988 F.2d 247, 250 (1st Cir.1993) (mandate precluded district court from considering a new issue at resentencing); United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992) (mandate can limit issues for resentencing); United States v. Kikumura, 947 F.2d 72, 76 (3d Cir.1991) (“The district court, on remand, was bound to follow the mandate;” ...); United States v. Shaw, 883 F.2d" }, { "docid": "3762375", "title": "", "text": "by the district court and remanded for re-sentencing.” Moore, 131 F.3d at 599. Our Moore decision also discussed several cases in which courts issued limited remands. 131 F.3d at 598. In United States v. Polland (Polland I), 994 F.2d 1262, 1271 (7th Cir.1993), the Seventh Circuit wrote: “[f]or the foregoing reasons, the conviction is AFFIRMED, the sentence is VACATED, and the case is REMANDED for resentencing on the issue of obstruction of justice.” See United States v. Polland (Polland II), 56 F.3d 776, 778 (7th Cir.1995) (finding that the language from Polland I was a limited mandate). Likewise, in United States v. Cassity (Cassity I), 631 F.2d 461, 466 (6th Cir.1980), we wrote: “[t]he judgments of conviction are vacated and the cases are remanded to the district court for hearings on the suppression issue.... The court shall order a new trial for, and grant the suppression motion of, each appellant whose legitimate expectations of privacy are found to have been violated by the beeper surveillance.” See United States v. Cassity (Cassity II), 720 F.2d 451, 459 (6th Cir.1983) (holding that the mandate in Cassity I was a limited mandate). The difference between the limited mandates and the general mandates is the presence of limiting language. Moore, 131 F.3d at 598 (explaining that in each of the three limited remand examples discussed, “on a subsequent appeal, the Court construed its remand order as general rather than specific because the order contained no limiting language”). The O’Dell IV mandate, however, specifically instructed the court to “resentenc[e] without application of the safety valve.” 247 F.3d at 687. Therefore, based on the distinction demonstrated in Moore between general and limited mandates, O’Dell IV contained a limited mandate. Additionally, Moore highlighted the Eighth Circuit’s opinion in United States v. Byrne, 83 F.3d 984 (8th Cir.1996), aff'd sub. nom. United States v. Santonelli, 128 F.3d 1233 (8th Cir.1997), as another example of a limited mandate. The Eighth Circuit phrased its mandate this way: “[w]e affirm Santonelli’s conviction on all counts, vacate his sentence and remand his case to the district court for resentencing.” Id. at 994." }, { "docid": "23287100", "title": "", "text": "“reflected only our direction that the statutory minimum sentence be imposed” and “because Pultrone abandoned his appeal, no other aspect of his conviction or sentence was at issue. In this circumstance, ‘[t]he grant of remand on appeal does not reopen the order appealed from....’” Id. (quoting United States v. Mendes, 912 F.2d 434, 437-38 (10th Cir.1990)); accord Whren, 111 F.3d at 960 (instructing that “upon a resentencing occasioned by a remand, unless the court of appeals expressly directs otherwise, the district court may consider only such new arguments or new facts as are made newly relevant by the court of appeals’ decision....”); Marmolejo, 139 F.3d at 531 (same); Walterman, 408 F.3d at 1085 (same). As stated in Quintieri, however, when the resentencing is de novo rather than limited, issues concerning the first sentence that were previously waived may be raised in the first instance if warranted by the second sentence. Miller argues that this exception applies because his second sentencing was essentially de novo. Our sister circuits are divided over whether a district court absent specific direction should generally treat a vacation and remand of a sentence as a de novo resentencing or as a limited proceeding in which the sentencing court revisits only the particular issues identified as grounds for remand. See Quintieri, 306 F.3d at 1228 n. 6 (collecting cases on both sides of the circuit split). In those circuits that have adopted a de novo sentencing default rule, resentencing is de novo absent explicit direction otherwise from the remanding appellate court. See, e.g., United States v. Jennings, 83 F.3d 145, 151 (6th Cir.1996) (creating a default rule of de novo resentencing), amended by 96 F.3d 799 (6th Cir.1996); United States v. Cornelius, 968 F.2d 703, 705-06 (8th Cir.1992) (same); United States v. Ponce, 51 F.3d 820, 826 (9th Cir.1995) (same); United States v. Stinson, 97 F.3d 466, 469 (11th Cir.1996) (same). Other circuits follow a default rule of limited resentencing, in which resentencing is not considered to be de novo unless expressly designated as such. In these circuits, “upon a resentencing occasioned by a remand, unless the" }, { "docid": "22285836", "title": "", "text": "court of appeals expressly and specifically limits the scope of the remand. Marmolejo submits that because this court did not specifically limit the scope of its remand order, the resentencing following remand should be de novo, requiring the district court to hear all evidence offered regarding the defendant’s sentencing regardless of whether those issues were challenged on appeal. The issue involving the scope of a remand for resentencing has caused a significant split in the circuits. The appellant has cited the majority view among the circuits that sentencing following remand should be conducted de novo and is not limited only to the reasons for the remand. United States v. Smith, 116 F.3d 857 (10th Cir.1997); United States v. Jennings, 83 F.3d 145 (6th Cir.1996); United States v. Atehortva, 69 F.3d 679 (2d Cir.1995); United States v. Ponce, 51 F.3d 820 (9th Cir.1995); United States v. Cornelius, 968 F.2d 703 (8th Cir.1992). The general proposition regarding the scope of this court’s remand order has never been addressed entirely by this court. This court has held that once an issue is remanded for resentencing, all new matter relevant to that issue appealed, reversed, and remanded, may be taken into consideration by the resentencing court. In United States v. Kinder, 980 F.2d 961 (5th Cir.1992), the court stated: It is a fundamental principle of sentencing that a district court may conduct an inquiry broad in scope, largely unlimited either as to the kind of information it may consider, or the source from which such information may come. The scope of a remand for resentencing includes new relevant factors proper in a de novo review. In the interest of truth and fair sentencing a court should be able on a sentence remand to take new matters into account on behalf of either the government or the defendant. Although Kinder grants a district court wide discretion in conducting an inquiry into the underlying facts and evidence necessary in determining a defendant’s sentence, the holding is limited to the gathering of relevant facts and evidence on the specific and particular issues heard by the appeals court" } ]

[ { "docid": "21690903", "title": "", "text": "that since January, 1984, they have been ready to tender their first $75,000 payment under the plan, the bankruptcy court found the plan infeasible (despite the Clarksons’ remarkable industriousness) because the income projections did not carry the plan past its inception. The Clarksons’ failure to file operation reports or audit reports makes informed expectations about the plan’s success virtually impossible. The fact that the Clarksons have not prepared or filed their income tax returns for over five years suggests another important gap in the record on which the plan might be evaluated. Although we sympathize with the Clarksons, we find that the feasibility test is firmly rooted in predictions based on objective fact. The Second Circuit has declared that the feasibility test contemplates “the probability of actual performance of the provisions of the plan. Sincerity, honesty, and willingness are not sufficient to make the plan feasible, and neither are any visionary promises. The test is whether the things which are to be done after confirmation can be done as a practical matter under the facts.” In Re: Bergman, 585 F.2d 1171, 1179 (2d Cir.1978) (quoting 9 Collier on Bankruptcy, at 1139). Pertinent factors to be considered include the business’s earning power, the sufficiency of the capital structure, economic conditions, managerial efficiency, and whether the same management will continue to operate the company. In Re: Great Northern Protective Services, Inc., 19 B.R. 802, 803 (Bankr.W.D.Wash.1982). With these standards in mind, we conclude that the bankruptcy court properly relied on the absence of certain managerial and income data from the Clarksons’ plan in declining to confirm the plan. C. Continuing Loss to and Diminution of the Estate and Absence of a Reasonable Likelihood of Rehabilitation. Under 11 U.S.C. § 1112(b), the court “may * * * dismiss a case under this chapter * * * for cause, including (1) continuing loss to or diminution of the estate and absence of a reasonable likelihood of rehabilitation.” As we have noted, the absence of financial data and certain sources of income for the Clarksons indicates the absence of a reasonable likelihood of rehabilitation. In" } ]

[ { "docid": "8255585", "title": "", "text": "relevant information presented, including the offer of Sound View Partners to purchase the property, the Franklin County Tax Auditor’s assessment and GE’s underwriter’s valuation, but did not find any other indicia of value of the property to be persuasive in the face of the appraisals in evidence.”) The bankruptcy court’s findings are not clearly erroneous. C. The Bankruptcy Court Did Not Err in Finding that the Plan is Feasible. GE asserts that the bankruptcy court erred in confirming the Plan over its objection because the Plan does not satisfy the “feasibility test” under § 1129(a)(ll). Pursuant to 11 U.S.C. § 1129(a)(ll): (a) The court shall confirm a plan only if all of the following requirements are met: (11) Confirmation of the plan is not likely to be followed by the liquidation, or the need for further finan cial reorganization, of the debtor or any successor to the debtor under the plan, unless such liquidation or reorganization is proposed by the plan. “Feasibility is fundamentally a factual question since it necessarily depends upon a determination of the reasonable probability of payment.” In re Howard, 212 B.R. 864, 878 (Bankr.E.D.Tenn.1997) (citing In re Foertsch, 167 B.R. 555, 566 (Bankr.D.N.D.1994)). In order to be feasible pursuant to § 1129(a)(11), “[t]he plan does not need to guarantee success, but it must present reasonable assurance of success.” In re Made in Detroit, Inc., 299 B.R. 170, 176 (Bankr.E.D.Mich.2003) (citing Kane v. Johns-Manville Corp., 843 F.2d 636, 649 (2nd Cir.1988)), aff'd, 414 F.3d 576 (6th Cir.2005). In order to sufficiently establish such reasonable assurance, “a plan must provide a realistic and workable framework for reorganization.” Id. (citing Crestar Bank v. Walker (In re Walker), 165 B.R. 994, 1004 (E.D.Va.1994)). Relevant to a finding of feasibility is: (1) the adequacy of the capital structure; (2) the earning power of the business; (3) economic conditions; (4) the ability of management; (5) the probability of the continuation of the same management; and (6) any other related matter which determines the prospects of a sufficiently successful operation to enable performance of the provisions of the plan. Teamsters Nat’l Freight Indus." }, { "docid": "1874971", "title": "", "text": "its own jurisprudence since the Code’s adoption. Section 1129(a)(ll) requires courts to scrutinize carefully the plan to determine whether it offers a reasonable prospect of success and is workable. Courts have expressed this standard in various ways. The Court of Appeals for the Second Circuit has stated that “the feasibility standard is whether the plan offers a reasonable assurance of success. Success need not be guaranteed.” The Court of Appeals for the Tenth Circuit is in accord: “ ‘The purpose of section 1129(a)(ll) is to prevent confirmation of visionary schemes which promise creditors and equity security holders more under a proposed plan than the debtor can possibly attain after confirmation.’ In determining whether a plan meets the requirements of § 1129(a)(ll), .... ‘the bankruptcy court has an obligation to scrutinize the plan carefully to determine whether it offers a reasonable prospect of success and is workable.’” Several courts have considered the following factors when determining if a plan is feasible: (1) the adequacy of the debtor’s capital structure; (2) the earning power of its business; (3) economic conditions; (4) the ability of the debtor’s management; (5) the probability of the continuation of the same management; and (6)any other related matters which determine the prospects of a sufficiently successful operation to enable performance of the provisions of the plan. Although creditors sometimes press the issue, the possibility of failure is not fatal. As one court noted: “The Code does not require the debtor to prove that success is inevitable, and a relatively low threshold of proof will satisfy § 1129(a)(ll) so long as adequate evidence supports a finding of feasibility.” 7 Collier on Bankruptcy ¶ 1129.03[11] (Matthew Bender 15th Ed. Revised) (Footnotes omitted.) The feasibility analysis herein is complicated somewhat by the fact that Fremont’s challenges are based, in part, on its assumption as to the propriety of an interest rate on its recast loan of 9.72%. This rate, in other words, was arrived at by Fremont on the basis of an assumption that the cramdown provisions of 11 U.S.C. § 1129(b)(2)(A)(i)(II) require the use of a market rate of interest" }, { "docid": "18604037", "title": "", "text": "of its subsidiaries. The validity of these transfers has not been determined at this time. There is no evidence that Elpor owns any other assets. . A topical discussion of the merits of substantive consolidation appears in Sargent, Bankruptcy Remote Finance Subsidiaries: The Substantive Consolidation Issue, 44 Bus.Law. 1223 (1989). . This argument does not factor in the \"control\" aspect of Heights' argument or the merits of the Debtors’ capital infusion proposal. . Technically, the stock has no balance sheet value, given the extent of Heights' debt against it. Regardless, the MICO stock may have value based upon control of a going concern which owns $108,000,000.00 in assets. Ahlers, 108 S.Ct. at 969. . Section 1129(a)(l 1) requires that: Confirmation of the plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor or any successor to the debtor under the plan, unless such liquidation or reorganization is proposed in the plan. See In re Elm Creek Joint Venture, 93 B.R. 105, 110 (Bankr.W.D.Tex.1988). This is generally referred to as economic feasibility. In re 1000 Int’l Bldg. Assoc., 81 B.R. 125, 126-27 (Bankr.S.D.Fla.1987). . The Court's scrutiny of the Plan for purposes of determining whether the feasibility requirement has been met should include an examination of the following factors: (1) the adequacy of the capital structure; (2) the earning power of the business; (3) economic conditions; (4) the ability of management; (5) the probability of the continuation of the same management; and (6) any other related matter which determines the prospects of a sufficiently successful operation to enable performance of the provisions of the plan. In re Future Energy Corp., 83 B.R. 470, 503 (Bankr.S.D.Ohio 1988) (citations omitted); see also In re Nelson, 84 B.R. 90, 93 (Bankr.W.D.Tex.1988) (there must be sufficient cash flow to fund and operate the plan); In re Agawam Creative Marketing Assoc., 63 B.R. 612, 620 (Bankr.D.Mass.1986) (court should also consider whether debtor will have ability to meet capital expenditures). . In In re Greystone III Joint Venture, 102 B.R. 560, 579-80, (Bankr.W.D.Tex.1989), Judge Clark concluded: The" }, { "docid": "23661043", "title": "", "text": "Assocs.), 106 B.R. 767, 774 (S.D.N.Y.1989); Travelers Life & Annuity Co. v. Ritz-Carlton of D.C., Inc. (In re Ritz-Carlton of D.C., Inc.), 98 B.R. 170, 172 (S.D.N.Y.1989); In re Building 62 Ltd. Partnership, 132 B.R. 219, 222 (Bankr.D.Mass. 1991); In re Broad Assocs. Ltd. Partnership, 110 B.R. 632, 636 (Bankr.D.Conn.1990); Homestead Sav. & Loan Ass'n v. Associated Investors Joint Venture (In re Associated Investors Joint Venture), 91 B.R. 555, 558 (Bankr.C.D.Cal.1988); In re National Real Estate Ltd. Partnership, 87 B.R. 986, 990 (Bankr.E.D.Wis.1988). But see In re Rassier, 85 B.R. 524, 529-30 (Bankr.D.Minn.1988) (post-Timbers decision adopting necessity test because language in Timbers regarding § 362(d)(2)(B) is dicta and not binding). Although this court agrees that Timbers’ principles are binding as quoted above, for semantic reasons, the court disagrees with the appellation given to these principles by other courts — the “feasibility test\". What concerns the court regarding the use of this term is that a \"feasibility test” is also, and more appropriately, applied in connection with plan confirmation pursuant to § 1129(a)(ll). It is very important not to confuse the Timbers effective reorganization principles with chapter 11 plan confirmation standards. Under § 1129(a)(ll), in determining feasibility the court considers \"the adequacy of the capital structure, the earning power of the business, economic conditions, the ability of management, the probability of a continuation of the same management, and any other related matters which determine the prospects of a sufficiently successful operation to enable performance of the provisions of the plan.” 5 L. King, Collier on Bankruptcy ¶ 1129.02[11] (15th ed. 1992). The § 1129(a)(ll) feasibility standards are appropriate to consider at plan confirmation. But, such consideration is not necessarily appropriate under § 362(d)(2)(B). In this court's view, under the majority of factual situations, § 1129 plan confirmation issues should not be considered at a relief from stay hearing. See East-West Assocs., 106 B.R. at 774; In re Northgate Terrace Apartments, Ltd., 126 B.R. 520, 524-25 (Bankr.S.D.Ohio 1991); In re Wasserman, 122 B.R. 839, 844 (Bankr.D.Mass.1991); In re Ashgrove Apartments of DeKalb County, Ltd., 121 B.R. 752, 756 (Bankr.S.D.Ohio 1990); Crestar Bank" }, { "docid": "18981693", "title": "", "text": "and 1129(a) are either not applicable or have been satisfied by the Debtors’ Plan and the evidence presented at the confirmation hearing. Feasibility Section 1129(a)(ll) requires the court to find that “[c]onfirmation of the plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor or any successor to the debtor under the plan, unless such liquidation or reorganization is proposed in the plan.” 11 U.S.C. § 1129(a)(ll). “This statutory section establishes what is commonly known as the ‘feasibility’ requirement, and essentially requires the courts to determine whether a plan is ‘workable’ before it is confirmed.” In re American Trailer and Storage, Inc., 419 B.R. 412, 420-421 (Bankr.W.D.Mo. 2009) (citing Danny Thomas Properties II Ltd. P’ship. v. Beal Bank S.S.B. (In re Danny Thomas Properties II Ltd. P’ship.), 241 F.3d 959, 962 (8th Cir.2001)). “ ‘To satisfy the feasibility requirement, the Debtors need to establish only that the Plan has a reasonable probability of success.’ ” Id. (quoting In re Apex Oil Co., 118 B.R. 683, 708 (Bankr.E.D.Mo.1990)). It is the debtor’s burden to establish the feasibility of its plan by a preponderance of the evidence. Id. at 421 (citing Danny Thomas, 241 F.3d at 963). “Courts generally grant debtors every reasonable benefit of the doubt in matters concerning plan feasibility in furtherance of the rehabilitative policies underlying the Code.” In re Richards, 2004 WL 764526, *3 (Bankr. N.D.Iowa 2004) (citing In re Tofsrud, 230 B.R. 862, 872-73 (Bankr.D.N.D.1999)). The Bank asserts that the Debtors’ Plan is not feasible because the Debtors will be unable to make the payments required under the Plan. FSA joins the Bank in its argument regarding feasibility. The Bank contends that the Debtors’ monthly operating reports show a net loss during the bankruptcy case. Debtors respond that they made monthly payments to the Bank from the beginning of their bankruptcy through February 2010. Mr. Bryant also testified that in the future, he anticipates planting substantially more crops than he has in the past few years. He testified that although he has not planted a large amount" }, { "docid": "6399167", "title": "", "text": "right to collect future member dues could not under applicable labor law have been liquidated to pay off debtor’s creditors and, thus, additional assets would not have been available for distribution in a Chapter 7 liquidation, so that proposed reorganization plan satisfied the “best interests of creditors” test). Sweetwater’s objection to confirmation on these grounds is therefore overruled. Plan Confirmation Issue IV: Feasibility of the Plan Sweetwater alleges that the Plan violates § 1129(a)(ll) in that the Plan if confirmed most likely will be followed for a need to convert to Chapter 7 because the Debtor has not raised sufficient monies to fund the Creditor Settlement Fund. See 11 U.S.C. § 1129(a)(ll) (requiring, in order to confirm a plan, that the court find that “[confirmation of the plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor, unless such liquidation or reorganization is proposed in the plan.”). In addition, Sweetwater contends, the Debtor has not shown how it will pay administrative claims from operations. As numerous courts have explained, “the court need not require a guarantee of success,” which of course would be difficult to predict for any venture much less one emerging from chapter 11. “Only a reasonable assurance of commercial viability is required.”... Our task is to determine whether it was clearly erroneous for the bankruptcy court to find that the plan provided a reasonable assurance of commercial viability by a preponderance of the evidence. Briscoe Enter., 994 F.2d at 1165-66 (footnotes omitted), citing, e.g., In re Lakeside Global II, 116 B.R. 499, 507 (Bankr. S.D.Tex.1989); accord, In re T-H New Orleans Ltd. P’ship, 116 F.3d 790, 801 (5th Cir.1997) (“All the bankruptcy court must find is that the plan offers ‘a reasonable probability of success.’ ”), quoting Landing Assoc., 157 B.R., at 820; see also In re M & S Assoc., Ltd., 138 B.R. 845, 849 (Bankr. W.D.Tex.1992) (“The feasibility test contemplates the probability of actual performance of the provisions of the plan, and whether the things to be done under the plan can be done as" }, { "docid": "18552508", "title": "", "text": "“the plan, qua plan can be performed ... [but also] that regardless of plan performance, the business is such that it can continue; [ie.J it will not need liquidation or further reorganization.” 5 Collier on Bankruptcy, para. 1129.02[11] at 1129-63 (Bender 1996). This, test of feasibility necessitates an inquiry into numerous factors, such as: (1) the adequacy of the [debtor’s] capital structure; (2) the earning power of the [debtor’s] business; (3) economic conditions [that the debtor will face]; (4) the ability of [the debtor’s present] management; (5) the probability of the continuation of the same management; and (6) any other related matters which determine the prospects of a sufficiently successful operation to enable performance of the provisions of the plan. Id. at 1129-64 (cited in In re Landmark at Plaza Park, Ltd., 7 B.R. 653, 659 (Bankr.D.N.J.1980)). When engaging in a determination of feasibility, a “court need not require a guarantee of success ... [but, rather, o]nly a reasonable assurance of commercial viability.” In re Lakeside Global II, Ltd., 116 B.R. 499, 507 (Bankr.S.D.Tex.1989). See also In re Ridgewood Apartments of DeKalb County, Ltd., 183 B.R. 784, 789 (Bankr.S.D.Ohio 1995); Matter of IPC Atlanta Ltd. Partnership, 142 B.R. 547, 559 (Bankr.N.D.Ga.1992). However, a court cannot confirm “visionary schemes which promise creditors and equity security holders more under a proposed plan than the debtor can possibly attain after confirmation ... notwithstanding the proponent’s sincerity, honesty and willingness to make a best efforts attempt to perform according to the terms of the plan.” 5 Collier on Bankruptcy, para. 1129.02[11] at 1129-61 to 63 (citing Tennessee Publishing Co. v. American National Bank, 299 U.S. 18, 22, 57 S.Ct. 85, 87, 81 L.Ed. 13 (1936)). Furthermore, it is an axiom of common sense that “proof of feasibility is an easier task when payouts [to creditors] are done over shorter periods of time [because, t]he longer the debtor proposes a payout, the more difficult it may become to prove distant ability to service debts.” 5 Collier on Bankruptcy, para. 1129.02[11][a] at 1129-64 (citing In re White, 10 C.B.C.2d 308, 315, 36 B.R. 199 (Bankr.D.Kan.1983)). To" }, { "docid": "18713894", "title": "", "text": "liquidation or reorganization is proposed in the plan. 11 U.S.C. § 1129(a)(ll). Collier articulates a summary of the feasibility requirement: Basically, feasibility involves the question of emergence of the reorganized debtor in a solvent condition and with reasonable prospects of financial stability and success. It is not necessary that the success be guaranteed, but only that the plan present a workable scheme of reorganization and operation from which there may be a reasonable expectation of success. 5 Collier on Bankruptcy (15th ed. 1992) ¶ 1129.02[11], at 1129-54. The feasibility test requires the court to determine whether a plan is workable and has a reasonable likelihood of success. In re Drexel Burnham Lambert Group, Inc., et al., 138 B.R. 723 (Bankr.S.D.N.Y.1992). The purpose of the feasibility test has been described as protection against visionary or speculative plans. Pizza of Hawaii, Inc. v. Shakey’s, Inc. (In re Pizza of Hawaii, Inc.), 761 F.2d 1374, 1382 (9th Cir.1985) quoting, 5 Collier on Bankruptcy ¶ 1129.02[11] at 1129-34 (15th ed. 1984); accord, Drexel Burnham, 138 B.R. at 762. Factors a plan’s proponent must address and that a court should consider in making a feasibility determination include: (1) the adequacy of the debtor’s capital structure; (2) the earning power of the business; (3) the economic conditions; (4) the ability of management; (5) the probability of the continuation of the same management; (6) any other related matters which determine the prospects of a sufficiently successful operation to enable performance of the provisions of the plan. In re Landmark Plaza Park, Ltd., 7 B.R. 653, 659 (Bankr.D.N.J.1980); In re Toy & Sports Warehouse, Inc., 37 B.R. 141, 151 (Bankr.S.D.N.Y.1984). Based on the testimony of Robert Yon Ancken (“Von Ancken”), President of James Felt Appraisal and Consulting Services, and the supporting documents presented, this Court rejects the Bank’s argument that the projections of earning power for OTS are overly optimistic without a change in the current management. We further find that, absent the other statutory infirmities which this Court has already found bar the confirmation of this Plan, were the Plan to be confirmed, a change in management" }, { "docid": "18505086", "title": "", "text": "Jones, Inc., 110 B.R. 362, 373 (Bankr. N.D.Ill.1990); In re Agawam Creative Marketing Assocs., Inc., 63 B.R. 612, 619 (Bankr.D.Mass.1986). The clear and convincing test is the logical one to apply because of the stricter scrutiny required when property and property rights are sought to be taken. Cf. Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593 (1935) (recognizing the substantive rights of a secured creditor in specific property and noting that the bankruptcy power is subject to the Fifth Amendment). There is no question that debtor has failed to meet this burden of proof. Moreover, even if the court’s analysis is incorrect and the appropriate burden of proof is one of preponder-, anee of the evidence, the result would be the same. VII. Confirmability of Debtor’s Plan A. Feasibility To be confirmed, a debtor’s plan of reorganization must be feasible. 11 U.S.C. § 1129(a)(11); In re N.S. Garrott & Sons, 48 B.R. 13, 15 (Bankr.E.D.Ark.1984). The burden of proving feasibility belongs to the debtor. In re Lakeside Global II, Ltd., 116 B.R. 499, 505 (Bankr.S.D.Tex.1989). To demonstrate feasibility, the debt- or must show by concrete evidence that there will be sufficient cash flow to fund the plan and maintain operations according to the plan. In re Nelson, 84 B.R. 90, 93 (Bankr.W.D.Tex.1988); In re Merrimack Valley Oil Co., 32 B.R. 485, 488 (Bankr.D.Mass.1983). Factors to be considered include the debtor’s prior performance, the adequacy of capital structure, the earning power of the business, economic conditions, the ability of management, the probability of the continuance of the same management, and any other related matter that determines the prospects of a sufficiently successful operation to enable performance of the provisions of the plan. Canal Place Limited Partnership v. Aetna Life Ins. Co. (In re Canal Place Limited Partnership), 921 F.2d 569, 579 (5th Cir.1991) (per curiam approving bankruptcy court’s analysis set forth as appendix to the opinion); Lakeside Global, 116 B.R. at 506. Plans that are mere visionary schemes based on speculation, conjecture, or unrealistic projections cannot be confirmed. In re Sound Radio, Inc.," }, { "docid": "18981692", "title": "", "text": "the Motion to Dismiss is denied. CONFIRMATION Section 1129 of the Bankruptcy Code controls confirmation of Chapter 11 plans and the Court may not confirm a plan unless all of the requirements of § 1129 are met. In re Reuter, 427 B.R. 727, 769 (Bankr.W.D.Mo.2010) (citing In re Gilbertson Restaurants LLC, 2005 WL 783063 (Bankr.N.D.Iowa 2005)). The plan proponent, the Debtors in this case, bear the burden of establishing that the requirements of § 1129 are met by a preponderance of the evidence. Id. The contested issues regarding confirmation of the Debtors’ Plan in controversy in this case are: (1) the feasibility of the Debtors’ Plan; (2) the pre-confirmation interest rate to be applied to the Bank’s claim; (3) the post-confirmation interest rate to be applied to the Bank’s claim; (4) the length of the repayment term of the Bank’s claim; and (5) whether the FSA’s claim may be bifurcated in order to release the FSA’s lien on a portion of its collateral. The Court finds all other requirements for plan confirmation under §§ 1123 and 1129(a) are either not applicable or have been satisfied by the Debtors’ Plan and the evidence presented at the confirmation hearing. Feasibility Section 1129(a)(ll) requires the court to find that “[c]onfirmation of the plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor or any successor to the debtor under the plan, unless such liquidation or reorganization is proposed in the plan.” 11 U.S.C. § 1129(a)(ll). “This statutory section establishes what is commonly known as the ‘feasibility’ requirement, and essentially requires the courts to determine whether a plan is ‘workable’ before it is confirmed.” In re American Trailer and Storage, Inc., 419 B.R. 412, 420-421 (Bankr.W.D.Mo. 2009) (citing Danny Thomas Properties II Ltd. P’ship. v. Beal Bank S.S.B. (In re Danny Thomas Properties II Ltd. P’ship.), 241 F.3d 959, 962 (8th Cir.2001)). “ ‘To satisfy the feasibility requirement, the Debtors need to establish only that the Plan has a reasonable probability of success.’ ” Id. (quoting In re Apex Oil Co., 118 B.R. 683," }, { "docid": "23268073", "title": "", "text": "the plan. In Agawam v. Creative Marketing Assoc., Inc., the purpose of the feasibility requirement was described by Judge Gabriel as follows: The purpose of section 1129(a)(ll) is manifold: 1) to prevent confirmation of visionary schemes which promise creditors and equity security holders more under a proposed plan than the debtor can possibly attain after confirmation, 2) to prevent an abuse of the reorganization process by the confirmation of a plan of a debtor likely to return to bankruptcy, and 3) to promote the willingness of those who deal with post-confirmation debtors to extend the credit that such companies frequently need. 63 B.R. at 619 (citations omitted). In assessing whether a plan is feasible, the bankruptcy court has “an obligation to scrutinize the plan carefully to determine whether it offers a reasonable prospect of success and is workable.” In re Monnier Brothers, 755 F.2d 1336, 1341 (8th Cir.1985) (quoting United Properties, Inc. v. Emporium Department Store, Inc., 379 F.2d 55, 64 (8th Cir.1967)). As the Monnier Brothers court stated, “success need not be guaranteed.” 755 F.2d at 1341. “All that is required is that there be reasonable assurance of commercial viability.” In re Prudential Energy Co., 58 B.R. at 862. The Court’s scrutiny of the Plan for purposes of determining whether the feasibility requirement has been met should include an examination of the following factors: (1) the adequacy of the capital structure; (2) the earning power of the business; (3) economic conditions; (4) the ability of management; (5) the probability of the continuation of the same management; and (6) any other related matter which determines the prospects of a sufficiently successful operation to enable performance of the provisions of the plan. In re U.S. Truck Co., Inc., 800 F.2d at 589; In re Landmark at Plaza Park, Ltd., 7 B.R. 653, 659 (Bankr.N.J.1980); In re Prudential Energy Co., 58 B.R. at 862-63; In re Agawam Creative Marketing Assoc., Inc., 63 B.R. at 619-20. The issue of compliance with § 1129(a)(ll) was not raised by the objectors. Nevertheless, as noted above, the Court has an independent duty to determine that all" }, { "docid": "15718049", "title": "", "text": "As noted by reorganization scholar Richard Broude: [ujnder former Chapter XI, feasibility meant only that the debtor could perform as called for in the plan. If the Chapter XI plan called for only one payment of cash to creditors at the time of confirmation, the feasibility test was satisfied if the debtor has the cash. The standard of Section 1129(a)(ll) is much more rigorous and represents a shift from plan viability to debtor viability. Richard F. Broude, Reorganizations Under Chapter 11 of the Bankruptcy Code § 12.14, at p. 12-33 (2006). The obligation to scrutinize reorganizing debtors and not to release them until they are shown to be a viable business is echoed in the Ninth Circuit’s exhortation that a court should “prevent confirmation of visionary schemes.... ” Pizza of Hawaii, Inc. v. Shakey’s, Inc. (In re Pizza of Hawaii), 761 F.2d 1374, 1382 (9th Cir.1985). See also Danny Thomas Prop. II Ltd. P’ship v. Beal Bank, S.S.B. (In re Danny Thomas Prop. II Ltd. P’ship), 241 F.3d 959, 963 (8th Cir.2001) (recognizing “courts’ duty under § 1129(a)(ll) to protect creditors against ‘visionary schemes’ ”). Any sane investor would have serious and legitimate questions regarding the viability of Trans Max’s technology, and Trans Max’s inability to provide sufficient answers to those questions reaffirms a lack of feasibility in this case. Trans Max’s technology may be promising, but the idea of developing a flying car based on that technology in three years, see note 3 supra, could be considered somewhat implausible. Even more implausible is the notion that Trans Max could develop such a car without incurring a cent of debt. III. Conclusion For all of these reasons, and especially because Trans Max has not yet secured any joint venturer or investors as called for in its business plan, the Court denies Trans Max’s request for confirmation. This opinion constitutes the court’s findings of fact and conclusions of law under Fed. R. BankrP. 7052. A separate order denying confirmation will be entered under Fed. R. BankrP. 9021. . As explained on the OTC Bulletin Board website, listing on the OTC Bulletin" }, { "docid": "15718039", "title": "", "text": "statutory requirements for consensual confirmation except for the voting requirement found in 11 U.S.C. § 1129(a)(8). One of these requirements is the so-called feasibility requirement of Section 1129(a)(ll), and the UST has raised an objection based upon the lack of feasibility. Feasibility determinations require proof that confirmation is “not likely to be followed by the liquidation, or the need for further reorganization, of the debtor ..., unless such liquidation or reorganization is proposed under the plan.” 11 U.S.C. § 1129(a)(ll). “ ‘The purpose of section 1129(a)(ll) is to prevent confirmation of visionary schemes which promise creditors and equity security holders more under a proposed plan than the debtor can possibly attain after confirmation,’ ” Pizza of Hawaii, Inc. v. Shakey’s, Inc. (In re Pizza of Hawaii, Inc.), 761 F.2d 1374, 1382 (9th Cir.1985), quoting 5 Collier on Bankruptcy ¶ 1129.02[11] at 1129-34 (15th ed.1984). In considering whether a particular plan is feasible, courts have considered the following factors: (1) the adequacy of the debtor’s capital structure; (2) the earning power of its business; (3) economic conditions; (4) the ability of the debtor’s management; (5) the probability of the continuation of the same management; and (6) any related matters which determine the prospects of a sufficiently successful operation to enable performance of the provisions of the plan. See In re Greate Bay Hotel & Casino, Inc., 251 B.R. 213, 226-27 (Bankr.D.N.J.2000), quoting In re Temple Zion, 125 B.R. 910, 915 (Bankr.E.D.Pa.1991); 7 Collier on Bankruptcy ¶ 1129.03[11] (Henry Sommers & Alan Resnick, eds., 15th rev. ed.2006). As with any other confirmation requirement, the plan proponent must demonstrate its satisfaction by a preponderance of the evidence. Liberty Nat’l Enters. v. Ambanc La Mesa Ltd. P’ship (In re Ambanc La Mesa Ltd. P’ship), 115 F.3d 650, 653 (9th Cir.1997). The inquiry is thus on whether Trans Max, as plan proponent, has sufficiently established its postconfirmation viability, and its ability to meet its future obligations. Particularly important in this regard is that the plan proponent demonstrate that any necessary financing or funding has been obtained, or is likely to be obtained. Crestar Bank v." }, { "docid": "6660085", "title": "", "text": "with the Requirements of 11 U.S.C. § 1129(a)(ll). The feasibility test set forth in § 1129(a)(ll) requires the Court to determine whether the Plan has a reasonable likelihood of success. As explained by the Fifth Circuit: In determining whether a debtor’s Chapter 11 plan of reorganization is feasible, we noted in [In re] Briscoe [Enter., Ltd., II, 994 F.2d 1160 (5th Cir.1993) ] that “the [bankruptcy] court need not require a guarantee of success ..., [o]nly a reasonable assurance of commercial viability is required.” Id. at 1165-66; see also Kane v. Johns-Manville Corp., 843 F.2d 636 (2nd Cir.1988). All the bankruptcy court must find is that the plan offer “a reasonable probability of success.” In re Landing Assocs., Ltd., 157 B.R. 791, 820 (Bankr.W.D.Tex.1993). T-H New Orleans, 116 F.3d at 801; see In re M & S Assocs., 138 B.R. 845, 848-49 (Bankr.N.D.Tex.1992). To meet this burden, the debtor must present proof through reasonable projections that there will be sufficient cash flow to fund the plan. Such projections cannot be speculative, conjectural, or unrealistic. M & S Assocs., 138 B.R. at 849. “However, just as speculative prospects of success cannot sustain feasibility, speculative prospects of failure cannot defeat feasibility.” In re Cajun Elec. Power Co-op., Inc., 230 B.R. 715, 745 (Bankr.M.D.La.1999). Courts have considered the following factors in determining whether a plan is feasible: (1) the debtor’s capital structure, (2) the earning power of the business, (3) economic conditions, (4) the ability of debtor’s management, (5) the probability of continuation of management, and (6) any other related matter. See, e.g., In re Friendship Dairies, 2014 WL 29081, *10 (Bankr.N.D.Tex. Jan. 3, 2014). The test is discretionary, and a court may apply or ignore the various factors as it sees fit. Id.; see, e.g., In re Am. Solar King Corp., 90 B.R. 808, 832-33 (Bankr.W.D.Tex.1988) (finding courts do not need to “check off’ factors); Save Our Springs (S.O.S.) Alliance, Inc. v. WSI (II)-COS, L.L.C. (In re Save Our Springs (S.O.S.) Alliance, Inc.), 632 F.3d 168, 173 (5th Cir.2011) (noting the lower court did not need to analyze each of the six" }, { "docid": "12485252", "title": "", "text": "‘The purpose of section 1129(a)(ll) is to prevent confirmation of visionary schemes which promise creditors and equity security holders more under a proposed plan than the debtor can possibly attain after confirmation.’ ” Matter of Pizza of Hawaii, Inc. 761 F.2d 1374, 1382 (9th Cir.1985) (quoting 5 Collier on Bankruptcy ¶ 1129.02[11], at 1129-34 (15th ed.1984)). Feasibility is established through expert testimony “and those knowledgeable of the future prospects of the reorganized debtor. The inquiry is on the viability of the reorganized debtor, and its ability to meet its future obligations, both as provided for in the plan and as may be incurred in operations.” 7 Collier on Bankruptcy ¶ 1129.03[11], at 1129-65. “In this respect, ‘section 1129(a)(ll) requires the plan proponent to show concrete evidence of a sufficient cash flow to fund and maintain both its operations and obligations under the plan.’ ” 7 Collier on Bankruptcy ¶ 1129.03[11], at 1129-65 (quoting S & P, Inc. v. Pfeifer, 189 B.R., at 183) (citations omitted). The “[traditional factors which have evolved to aid the bankruptcy court in a feasibility analysis include: (1) the adequacy of the capital structure; (2) the earning power of the business; (3) economic conditions; (4) the ability of management; (5) the probability of the continuation of the same management; and (6) any other related matter which determines the prospects of a sufficiently successful operation to enable performance of the provisions of the plan.” In re Lakeside Global II, Ltd., 116 B.R., at 506. See also In re Acequia, 787 F.2d 1352, 1364 (9th Cir.1986) in which the debtor provided the court with both “ ‘conservative’ and ‘best case’ projections.” Additionally, the debtor’s experts testified that the debtor’s assets were attractive and in demand. Id. at 1364. This list of factors is neither exhaustive nor exclusive. In re Drexel Burnham Lambert Group, Inc., 138 B.R., at 763. I. Adequacy of the Capital Structure a. Sagewood’s 1997 Business Asset Plan (exhibit 342) shows plan projections from 1997 to 2003. Sagewood contends there will be a $72,975 increase in net revenues in 1997, which is approximately the same amount" }, { "docid": "6399176", "title": "", "text": "claims against the Debtor, except as otherwise provided herein.” However, Article X of SOS’s Plan, containing provisions governing consequences and remedies upon default under the Plan, provides that under certain circumstances, the Debtor’s discharge will “disappear” and the creditors’ claims may be reinstated in full. Specifically, Article X provides that (1) a creditor must provide notice of a default under the Plan to the Debtor, (2) which then has fifteen days from receipt of that notice to cure. Then, if (3) there is no timely cure, and (4) the creditor obtains a determination from the Bankruptcy Court that the Debtor has in fact defaulted and has not timely cured, then and only then “each creditor or party in interest [in the bankruptcy case] will be entitled to assert its claim or claims as if this Plan had not been confirmed, and shall not be limited to the payments proposed by this Plan to be paid or distributed to such creditor [sic].” Such a provision, rather than curing the Debtor’s failure to show the Plan is feasible, merely highlights that failure. In In re Investment Co. of the Southwest, Inc., 341 B.R. 298, 317 (10th Cir. BAP 2006), the Court addressed the feasibility of a plan that included a drop-dead clause allowing the creditor to immediately foreclose upon default. The Court held that, while such a clause “may result in the creditor not losing as much — because it can more quickly liquidate the remaining collateral upon default ... it does not, on the front end, support a finding that a plan, itself, is not likely to be followed by the liquidation of, or the need for further financial reorganization by, the debtor.” The Court cited In re Danny Thomas Prop. II Ltd. P’ship, 241 F.3d 959, 963 (8th Cir.2001), for its holding that “the mere right to foreclose upon default does not render a plan feasible as a matter of law[, but, r]ather, a court must look at whether the property that the creditor would be entitled to foreclose and sell would be sufficient to pay the remaining claims,” and" }, { "docid": "20237709", "title": "", "text": "re T-H New Orleans Ltd. P’ship), 116 F.3d 790, 801 (5th Cir. 1997); Pizza, Inc. v. Shakey's, Inc. (In re Pizza of Haw., Inc.), 761 F.2d 1374, 1377 (9th Cir. 1985) (\"The issue whether a plan is feasible ... is one of fact, which we review under the clearly erroneous standard.” (citation omitted)). . See Wilson v. Huffman (In re Missionary Baptist Found, of Am., Inc.), 712 F.2d 206, 209 (5th Cir. 1983) (\"When a finding of fact is premised on an improper legal standard, or a proper one improperly applied, that finding loses the insulation of the clearly erroneous rule.” (citation omitted)). . See 7 Collier on Bankruptcy ¶ 1129.02[11] (16th ed. rev.2010) (stating that the court \"has significant leeway on the types of evidence it may consider, including preferring results during the pendency of the case over prior results” (footnote omitted)). . See Canal Place Ltd. P'ship v. Aetna Life Ins. Co. (In re Canal Place Ltd. P’ship), 921 F.2d 569, 579 (5th Cir.1991) (\"Speculative, conjectural or unrealistic projections by Debtor cannot support Debtor's predictions of future performance.” (citation omitted)). . The list typically includes \"(1) the adequacy of the debtor’s capital structure; (2) the earning power of the debtor's business; (3) economic conditions; (4) the ability of the debt- or's management; (5) the probability of the continuation of the same management; and [6] and [sic] any other related matter which determines the prospects of a sufficiently successful operation to enable performance of the provisions of the plan.” In re M & S Assocs., Ltd., 138 B.R. 845, 849 (Bankr.W.D.Tex.1992) (citation omitted). . See Briscoe Enters., 994 F.2d at 1166 (failing to recite the test and considering only three factors). .Many courts have found debtors’ statements that funding is forthcoming to be insufficient in the absence of concrete evidence that the contributors are willing to give and capable of giving. See, e.g., In re Repurchase Corp., 332 B.R. 336, 343 (Bankr.N.D.Ill.2005) (deciding that president's statement that his wife will provide capital is insufficient); In re Ralph C. Tyler, P.E., P.S., Inc., 156 B.R. 995, 997 (Bankr.N.D.Ohio 1993) (ruling" }, { "docid": "18713895", "title": "", "text": "a plan’s proponent must address and that a court should consider in making a feasibility determination include: (1) the adequacy of the debtor’s capital structure; (2) the earning power of the business; (3) the economic conditions; (4) the ability of management; (5) the probability of the continuation of the same management; (6) any other related matters which determine the prospects of a sufficiently successful operation to enable performance of the provisions of the plan. In re Landmark Plaza Park, Ltd., 7 B.R. 653, 659 (Bankr.D.N.J.1980); In re Toy & Sports Warehouse, Inc., 37 B.R. 141, 151 (Bankr.S.D.N.Y.1984). Based on the testimony of Robert Yon Ancken (“Von Ancken”), President of James Felt Appraisal and Consulting Services, and the supporting documents presented, this Court rejects the Bank’s argument that the projections of earning power for OTS are overly optimistic without a change in the current management. We further find that, absent the other statutory infirmities which this Court has already found bar the confirmation of this Plan, were the Plan to be confirmed, a change in management would not be necessary. The success of the Plan is based largely on the potential income from the projected new signage on the south, east, and west facades of OTS. While it is difficult to precisely predict the future income from the building’s signage generally, the Plan, nevertheless, proposes a plausible strategy for leasing new signage on the facades of OTS. In addition, at trial, Von Ancken made assumptions which revealed that the building’s earning power is likely to improve over the life of the Plan. Because, this Court is persuaded that the Plan presents reasonable prospects of the Debtor’s future financial stability we find that the Plan as proposed is feasible and comports with section 1129(a)(ll) of the Code. Conclusion For the preceding reasons, this Court finds that the Debtor’s Plan of Reorganiza tion is not in compliance with the various sections of the Bankruptcy Code discussed above. Therefore, this Court holds that the Plan proposed by the OTS Limited Partnership cannot be confirmed. Additionally, the Bank’s motion for relief from the automatic stay" }, { "docid": "18552507", "title": "", "text": "at $563,160, with total work-in-process at $406,-165. Most, if not all, of Rack’s prior financial numbers have been professionally reviewed although not audited. With respect to Rack’s pro formas, Rack, by its own admission, has borrowed heavily from a marketing plan developed by an outside consultant. This outside study was performed in November of 1994. Rack admittedly has not yet closely followed the marketing strategies set forth in the outside study because, it asserts, its financial condition during that time period would not allow it. DISCUSSION A court may confirm a plan in a Chapter 11 case only if, inter alia, “[confirmation of the plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor or any successor to the debtor under the plan, unless such liquidation or reorganization is proposed in the plan.” 11 U.S.C.A. § 1129(a)(11) (West 1993). Because Rack’s plan contemplates its continued existence subsequent to full execution of the terms of the plan, this Court is obligated to ascertain not only whether “the plan, qua plan can be performed ... [but also] that regardless of plan performance, the business is such that it can continue; [ie.J it will not need liquidation or further reorganization.” 5 Collier on Bankruptcy, para. 1129.02[11] at 1129-63 (Bender 1996). This, test of feasibility necessitates an inquiry into numerous factors, such as: (1) the adequacy of the [debtor’s] capital structure; (2) the earning power of the [debtor’s] business; (3) economic conditions [that the debtor will face]; (4) the ability of [the debtor’s present] management; (5) the probability of the continuation of the same management; and (6) any other related matters which determine the prospects of a sufficiently successful operation to enable performance of the provisions of the plan. Id. at 1129-64 (cited in In re Landmark at Plaza Park, Ltd., 7 B.R. 653, 659 (Bankr.D.N.J.1980)). When engaging in a determination of feasibility, a “court need not require a guarantee of success ... [but, rather, o]nly a reasonable assurance of commercial viability.” In re Lakeside Global II, Ltd., 116 B.R. 499, 507 (Bankr.S.D.Tex.1989). See" }, { "docid": "15718048", "title": "", "text": "effectively relinquish its ability ever to be in bankruptcy again — a dubious proposition, given creditors’ ability to file involuntary proceedings in bankruptcy — it still could not meet the requirements of Section 1129(a)(ll). Trans Max’s argument rests on the notion that, however risky or speculative its business plan, its intention to enter into licenses of its property that do not require any financial commitment on its part means that its current creditors may postpone the legal conclusion that their debts are worthless, and receive in return the possibility, however ephemeral, of something in the future. Since no promises are made by reorganized Trans Max, it can break none. On this assertion it distinguishes existing precedent on feasibility, which is couched in terms of a reorganized debtor’s ability to meet plan commitments. To rephrase again: because the reorganized Trans Max will have no commitments, it contends that it does not bear any burden of showing how likely it is to make money in the future. Trans Max seriously mispereeives the function of the feasibility requirement. As noted by reorganization scholar Richard Broude: [ujnder former Chapter XI, feasibility meant only that the debtor could perform as called for in the plan. If the Chapter XI plan called for only one payment of cash to creditors at the time of confirmation, the feasibility test was satisfied if the debtor has the cash. The standard of Section 1129(a)(ll) is much more rigorous and represents a shift from plan viability to debtor viability. Richard F. Broude, Reorganizations Under Chapter 11 of the Bankruptcy Code § 12.14, at p. 12-33 (2006). The obligation to scrutinize reorganizing debtors and not to release them until they are shown to be a viable business is echoed in the Ninth Circuit’s exhortation that a court should “prevent confirmation of visionary schemes.... ” Pizza of Hawaii, Inc. v. Shakey’s, Inc. (In re Pizza of Hawaii), 761 F.2d 1374, 1382 (9th Cir.1985). See also Danny Thomas Prop. II Ltd. P’ship v. Beal Bank, S.S.B. (In re Danny Thomas Prop. II Ltd. P’ship), 241 F.3d 959, 963 (8th Cir.2001) (recognizing “courts’ duty" } ]

[ { "docid": "22664220", "title": "", "text": "federal issues. The basic issue presented in Mercury’s federal suit was the arbitrability of the dispute between Mercury and the Hospital. Federal law in the terms of the Arbitration Act governs that issue in either state or federal court. Section 2 is the primary substantive provision of the Act, declaring that a written agreement to arbitrate “in any maritime transaction or a contract evidencing a transaction involving commerce . . . 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. Section 2 is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act. In Prima Paint Corp. v. Flood & Conklin Mfg. Corp., 388 U. S. 395 (1967), for example, the parties had signed a contract containing an arbitration clause, but one party alleged that there had been fraud in the inducement of the entire contract (although the alleged fraud did not go to the arbitration clause in particular). The issue before us was whether the issue of fraud in the inducement was itself an ar-bitrable controversy. We held that the language and policies of the Act required the conclusion that the fraud issue was arbitrable. Id., at 402-404. Although our holding in Prima Paint extended only to the specific issue presented, the Courts of Appeals have since consistently concluded that questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration. We agree. The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability. To be sure, the source-of-law factor has less significance here than in" } ]

[ { "docid": "17224164", "title": "", "text": "contract through “assumption, piercing the corporate veil, alter ego, incorporation by reference, third-party beneficiary theories, waiver and estoppel,” the Sixth Circuit’s holding that nonparties to a contract are categorically barred from § 3 relief was error. Id. at 631,129 S.Ct. 1896 (emphasis added) (quoting 21 Richard A. Lord, Williston on Contracts § 57:19, at 183 (4th ed.2001)). Carlisle holds that, at least as a general principle, state law governs the inquiry as to whether a non-party to an arbitration agreement can assert the protection of the agreement. See id. at 630-32, 129 S.Ct. 1896; Lawson v. Life of the S. Ins. Co., 648 F.3d 1166, 1170-71 (11th Cir.2011). Car-lisle leaves unclear, however, whether the Court intended to disturb the uniform body of precedent in the courts of appeals, which we just have examined, holding that a uniform federal rule is required with respect to the amenability of employees acting within the scope of their employment to the arbitration clauses in their employers’ contracts. As we have noted earlier, the cases requiring that the employees of a company be bound by the arbitration agreements of their employers are based on the specific rationale that such a rule is necessary to protect the federal policy embodied in the FAA of favoring arbitration. Without it, according to the rationale of those cases, a party could frustrate an arbitration clause by simply naming employees as party defendants along with the signatory company in a judicial action. Nothing in Carlisle specifically disapproves the fashioning of federal law to avoid this specific abuse. Notably, at one point in Carlisle, the Court seemingly limited the scope of its holding; it wrote: We have said many times that federal law requires that “questions of arbitra-bility ... be addressed with a healthy regard for the federal policy favoring arbitration.” Whatever the meaning of this vague prescription, it cannot possibly require the disregard of state law permitting arbitration by or against nonparties to the written arbitration agreement. 556 U.S. at 680 n. 5, 129 S.Ct. 1896 (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25," }, { "docid": "17224166", "title": "", "text": "103 S.Ct. 927, 74 L.Ed.2d 765 (1988)). Moreover, as we have just noted, in Carlisle, the Court specifically noted that the state law in that case permitted arbitration and was therefore compatible with and, indeed, supportive of the federal policy embodied in the FAA. See id. We need not decide definitively whether Carlisle has abrogated this specific line of federal cases. Even if the Supreme Court’s decision in Carlisle does signal the abrogation of the principle that, as a matter of federal law, the employees of a signatory of an arbitration agreement are protected by the agreement, Grand has not suggested any principle of New York law that impedes the interpretation of the agreement to protect the employee under the contract. It relies solely on the text of the contract — a text that does not support the illogical and impractical vision that an employee who acts solely within the scope of her employment is not protected by her employer’s arbitration clause. CONCLUSION The district court incorrectly denied the motion by Verizon and Ms. McCahill to compel Grand to arbitrate its claims against them. Accordingly, we reverse and remand to the district court for further proceedings consistent with this opinion. REVERSED AND REMANDED. . R.20-1 ¶ 3.3. . /d. ¶ 15.2.1. . Id. ¶ 15. . Id. ¶ 15.2.2. . Appellants’ Br. 7. Grand does not dispute this representation. See Appellee’s Br. 2. . R.15 at 17, ¶ 11. . Id. at 17, ¶ 12. .Id. at 17, ¶ 13. .Id. at 18, ¶¶ 16-17 (Count I). . R.26. . R.29. . The district court stayed the proceedings pending resolution of this appeal. . R.20-1 ¶ 15. (These words appear in capital letters in the Agreement. We have employed regular typeface here and in later uses of this quotation for readability.) . R.23 at 5-6. . R.15 at 13. . Id. at 17, ¶ 13. . Appellee's Br. 14. . Id. at 4 (internal quotation marks omitted). .Id. at 14. . R.23 at 5-6. . Appellants’ Br. 24. . Our decision in Restoration Preservation Masonry, Inc. v. Grove Europe Ltd.," }, { "docid": "1308053", "title": "", "text": "opinion&emdash;namely, MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942 (11th Cir.1999), abrogated on other grounds by Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 631, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009). See infra at 924 n. 8. Moreover, while the ev3 court did state that \"the principles of equitable estoppel could be applied” to compel arbitration in that case, the court ultimately upheld the district court's decision not to compel arbitration due to the standard of review. ev3, 2009 WL 2432348, at *6-7. Thus, given the Minnesota Supreme Court’s explicit reference in Onvoy to federal law on this issue, a single non-precedential case which did not ultimately compel arbitration is not a persuasive predictor of how the Minnesota Supreme Court would rule. . Several cases cited in the parties' briefs explicitly apply the law of states other than Minnesota and thus are inapposite. See Simmons Foods, Inc. v. H. Mahmood I. Al-Bunnia & Sons Co., 634 F.3d 466, 469 (8th Cir.2011) (Arkansas law); Lawson v. Life of the S. Ins. Co., 648 F.3d 1166, 1171 (11th Cir.2011) (Georgia law); Donaldson, 581 F.3d at 732 (Mississippi law). . In cases such as PRM Energy Systems, we have used the term \"alternative estoppel” to refer to the \"intertwined with the agreement” theory of when a non-signatory can compel arbitration. See PRM Energy Sys., 592 F.3d at 834-35. We did so to distinguish this theory from a theory that \"relies on agency and related principles to allow a nonsignatory to compel arbitration when, as a result of the nonsignatory’s close relationship with a signatory, a failure to do so would eviscerate the arbitration agreement.” Id. at 834. Since the district court, the parties’ briefs, and the Minnesota Supreme Court use the term \"equitable estoppel,” see Onvoy, 669 N.W.2d at 356, we use that term here. . The Wholesalers argue that it is irrelevant whether the Retailers' antitrust claims rely on the terms of the contracts containing the arbitration clause. Appellees’ Br. 31-34. Specifically, they argue that under MS Dealer, the Eleventh Circuit case cited in the Minnesota Supreme Court's Onvoy opinion," }, { "docid": "10921179", "title": "", "text": "de novo the district court’s denial of a motion to compel arbitration. MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 946 (11th Cir.1999). To determine which disputes between the parties to an enforceable arbitration agreement are covered by the language of the arbitration clause, we “apply[ ] the federal substantive law of arbitrability,” which is “applicable to any arbitration agreement within the coverage of the FAA.” Klay v. All Defendants, 389 F.3d 1191, 1200 (11th Cir.2004) (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 3353, 87 L.Ed.2d 444, (1985)). That inquiry “must be addressed with a healthy regard for the federal policy favoring arbitration,” Picard v. Credit Solutions, Inc., 564 F.3d 1249, 1253 (11th Cir.2009) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 1652, 114 L.Ed.2d 26 (1991)), and we must “rigorously enforce agreements to arbitrate,” Klay, 389 F.3d at 1200 (quoting Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221, 105 S.Ct. 1238, 1242, 84 L.Ed.2d 158 (1985)). Still, “arbitration is a matter of contract [and] the FAA’s strong proarbitration policy only applies to disputes that the parties have agreed to arbitrate.” Klay, 389 F.3d at 1200. An exception to that rule is that a nonparty may force arbitration “if the relevant state contract law allows him to enforce the agreement” to arbitrate. Carlisle, 129 S.Ct. at 1903; cf. Bd. of Trs. v. Citigroup Global Mkts., Inc., 622 F.3d 1335, 1342-43 (11th Cir. 2010) (applying state contract law to determine if a nonsignatory to an arbitration clause could be compelled to arbitrate under agency principles). As we have already mentioned, “traditional principles of state law” may allow “a contract to be enforced by or against nonparties to the contract through assumption, piercing the corporate veil, alter ego, incorporation by reference, third-party beneficiary theories, waiver and estoppel.” Carlisle, 556 U.S. at -, 129 S.Ct. at 1902 (quotation marks omitted). Many of this Court’s decisions involving the question of whether a non-party can enforce an arbitration clause against a party have not made clear that the applicable" }, { "docid": "17224165", "title": "", "text": "a company be bound by the arbitration agreements of their employers are based on the specific rationale that such a rule is necessary to protect the federal policy embodied in the FAA of favoring arbitration. Without it, according to the rationale of those cases, a party could frustrate an arbitration clause by simply naming employees as party defendants along with the signatory company in a judicial action. Nothing in Carlisle specifically disapproves the fashioning of federal law to avoid this specific abuse. Notably, at one point in Carlisle, the Court seemingly limited the scope of its holding; it wrote: We have said many times that federal law requires that “questions of arbitra-bility ... be addressed with a healthy regard for the federal policy favoring arbitration.” Whatever the meaning of this vague prescription, it cannot possibly require the disregard of state law permitting arbitration by or against nonparties to the written arbitration agreement. 556 U.S. at 680 n. 5, 129 S.Ct. 1896 (quoting 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 (1988)). Moreover, as we have just noted, in Carlisle, the Court specifically noted that the state law in that case permitted arbitration and was therefore compatible with and, indeed, supportive of the federal policy embodied in the FAA. See id. We need not decide definitively whether Carlisle has abrogated this specific line of federal cases. Even if the Supreme Court’s decision in Carlisle does signal the abrogation of the principle that, as a matter of federal law, the employees of a signatory of an arbitration agreement are protected by the agreement, Grand has not suggested any principle of New York law that impedes the interpretation of the agreement to protect the employee under the contract. It relies solely on the text of the contract — a text that does not support the illogical and impractical vision that an employee who acts solely within the scope of her employment is not protected by her employer’s arbitration clause. CONCLUSION The district court incorrectly denied the motion by Verizon and Ms. McCahill" }, { "docid": "14873363", "title": "", "text": "mentioned. Id. As we have explained above, the threshold inquiry under §§ 3 and 4 of the FAA whether, under traditional contract law principles, an agreement to arbitrate is enforceable between the parties. See, e.g., Arthur Andersen LLP v. Carlisle, — U.S. -, 129 S.Ct. 1896, 1902, 173 L.Ed.2d 832 (2009) (“If a written arbitration provision is made enforceable against (or for the benefit of) a third party under state contract law, [§ 3’s] terms are fulfilled.”); DuPont, 269 F.3d at 194 (“a non-signatory cannot be bound to arbitrate unless it is bound under traditional principles of contract and agency law to be akin to a signatory under the underlying agreement.”) (citation and internal quotation marks omitted). The inquiry is the same for motions under §§ 3 and 4, viz., the inquiry is whether an enforceable agreement to arbitrate exists. See, e.g., Zosky v. Boyer, 856 F.2d 554, 556 (3d Cir.1988). (“[I]t makes no practical difference whether the court enters an order in an ongoing suit compelling arbitration or merely stays its own proceedings. In either event, arbitration is the sine qua non before proceeding.”), abrogated on other grounds by Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000). The Tribunal’s holding that it has no jurisdiction over Rhodia, S.A. means that Rhodia, S.A. is a stranger to the ICC Arbitration and, therefore, has no enforceable right of arbitration. Because Rhodia, S.A. has no right to arbitration, it cannot obtain relief under §§ 3 or 4 of the FAA, and its appeal from the district court’s denial of its motion to dismiss/stay under § 3 of the FAA must therefore be dismissed as moot, because a court can not award it the relief it seeks. It simply can not arbitrate the disputed claims given the Tribunal’s decision. Moreover, because Rhodia, S.A.’s appeal from the denial of its motion to dismiss under § 3 is moot and must be dismissed, Rhodia, S.A.’s appeal from the district court’s denial of its discretionary motion to stay must also be dismissed for lack of pendent appellate jurisdiction." }, { "docid": "10921180", "title": "", "text": "is a matter of contract [and] the FAA’s strong proarbitration policy only applies to disputes that the parties have agreed to arbitrate.” Klay, 389 F.3d at 1200. An exception to that rule is that a nonparty may force arbitration “if the relevant state contract law allows him to enforce the agreement” to arbitrate. Carlisle, 129 S.Ct. at 1903; cf. Bd. of Trs. v. Citigroup Global Mkts., Inc., 622 F.3d 1335, 1342-43 (11th Cir. 2010) (applying state contract law to determine if a nonsignatory to an arbitration clause could be compelled to arbitrate under agency principles). As we have already mentioned, “traditional principles of state law” may allow “a contract to be enforced by or against nonparties to the contract through assumption, piercing the corporate veil, alter ego, incorporation by reference, third-party beneficiary theories, waiver and estoppel.” Carlisle, 556 U.S. at -, 129 S.Ct. at 1902 (quotation marks omitted). Many of this Court’s decisions involving the question of whether a non-party can enforce an arbitration clause against a party have not made clear that the applicable state law provides the rule of decision for that question. See, e.g., Becker v. Davis, 491 F.3d 1292, 1299 (11th Cir.2007); Blinco v. Green Tree Servicing LLC, 400 F.3d 1308, 1312 (11th Cir.2005); In re Humana, Inc. Managed Care Lit., 285 F.3d 971, 976 (11th Cir.2002), rev’d on other grounds, PacifiCare Health Sys., Inc. v. Book, 538 U.S. 401, 123 S.Ct. 1531, 155 L.Ed.2d 578 (2003); MS Dealer, 177 F.3d at 947; Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir.1993); McBro Planning and Dev’t Co. v. Triangle Elec. Constr. Co., 741 F.2d 342, 344 (11th Cir.1984). However, the Supreme Court’s 2009 decision in Carlisle, which postdates all of those decisions of this Court, clarifies that state law governs that question, and to the extent any of our earlier decisions indicate to the contrary, those indications are overruled or at least undermined to the point of abrogation by Carlisle. See United States v. Sneed, 600 F.3d 1326, 1332 (11th Cir.2010) (“[A] prior panel’s holding is binding on all subsequent panels" }, { "docid": "1308041", "title": "", "text": "parties agree that Minnesota law applies here. The only Minnesota Supreme Court case mentioning equitable estoppel in the arbitration context is Onvoy, Inc. v. SHAL, LLC, 669 N.W.2d 344 (Minn.2003). In that case, the court stated the general rule that “arbitration clauses are contractual and cannot be enforced by persons who are not parties to the contract.” Id. at 356. The court then explained that equitable estoppel is an exception to the rule and “prevents a signatory from relying on the underlying contract to make his or her claim against the nonsignatory.” Id. The court did not reach the issue of whether equitable estoppel applied, however, because it remanded the ease on other grounds. Id. at 357. One unpublished Minnesota Court of Appeals case has evaluated when equitable estoppel applies in the arbitration context, but Minnesota law specifies that unpublished cases are not precedential. Minn.Stat. § 480A.08(3)(c). Minnesota appears to follow federal law regarding equitable estoppel. See Onvoy, 669 N.W.2d at 356 (“Federal cases have set out at least three principles on which a nonsignatory to a contract can compel arbitration: equitable estoppel, agency, and third-party beneficiary.” (citing MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir.1999), abrogated on other grounds by Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 631, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009))). Since we do not have any published Minnesota cases applying equitable estoppel, and since Minnesota appears to follow federal law regarding equitable estoppel, we look to federal law here. We addressed the doctrine of equitable estoppel in PRM Energy Systems. In that case, we explained: [Equitable] estoppel typically relies, at least in part, on the claims being so intertwined with the agreement containing the arbitration clause that it would be unfair to allow the signatory to rely on the agreement in formulating its claims but to disavow availability of the arbitration clause of that same agreement. PRM Energy Sys., 592 F.3d at 835 (footnote added). A non-signatory can “force a signatory into arbitration under the [equitable] estoppel theory when the relationship of the persons, wrongs and issues involved is" }, { "docid": "17224163", "title": "", "text": "LLP v. Carlisle, 556 U.S. 624, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009), calls into some question the propriety of relying on a rule based on federal law in this situation. In that case, Carlisle and his associates had consulted with the accounting firm Arthur Andersen LLP about minimizing their tax liability. Id. at 626, 129 S.Ct. 1896. On the basis of that consultation, Carlisle entered into management contracts with Bricolage Capital, LLC. Id. These management contracts contained arbitration clauses. Id. After the Internal Revenue Service determined that the tax strategy was illegal, Carlisle and his associates filed a diversity action against Arthur Andersen, Bricolage and others. Id. at 626-27, 129 S.Ct. 1896. Claiming that equitable estoppel required Carlisle and his associates to arbitrate these claims under the agreements with Bricolage, Arthur Andersen sought a stay of the diversity action pending arbitration. Id. at 627,129 S.Ct. 1896. In the course of its decision, the Supreme Court wrote: Because “traditional principles” of state law allow a contract to be enforced by or against nonparties to the contract through “assumption, piercing the corporate veil, alter ego, incorporation by reference, third-party beneficiary theories, waiver and estoppel,” the Sixth Circuit’s holding that nonparties to a contract are categorically barred from § 3 relief was error. Id. at 631,129 S.Ct. 1896 (emphasis added) (quoting 21 Richard A. Lord, Williston on Contracts § 57:19, at 183 (4th ed.2001)). Carlisle holds that, at least as a general principle, state law governs the inquiry as to whether a non-party to an arbitration agreement can assert the protection of the agreement. See id. at 630-32, 129 S.Ct. 1896; Lawson v. Life of the S. Ins. Co., 648 F.3d 1166, 1170-71 (11th Cir.2011). Car-lisle leaves unclear, however, whether the Court intended to disturb the uniform body of precedent in the courts of appeals, which we just have examined, holding that a uniform federal rule is required with respect to the amenability of employees acting within the scope of their employment to the arbitration clauses in their employers’ contracts. As we have noted earlier, the cases requiring that the employees of" }, { "docid": "1308060", "title": "", "text": "ante at 923. Precisely. This case presents a broader arbitration agreement that is not tied solely to claims arising under a specific contract. Yet the court treats them the same. I would hold that the arbitration agreement here compels arbitration based on equitable estop-pel. II. The court correctly notes that state law determines whether nonsignatories can enforce arbitration provisions. PRM Energy, 592 F.3d at 833 (8th Cir.2010), citing Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630-31, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009). Minnesota has recognized equitable estoppel as one method to enforce an arbitration agreement against a nonsig-natory. Onvoy, Inc. v. SHAL, LLC, 669 N.W.2d 344, 356 (Minn.2003), citing MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir.1999), abrogated on other grounds by Carlisle, 556 U.S. at 631, 129 S.Ct. 1896. The Minnesota Supreme Court’s only discussion of equitable estop-pel — in its entirety — is as follows: Federal cases have set out at least three principles on which a nonsignatory to a contract can compel arbitration: equitable estoppel, agency, and third-party beneficiary. MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir.1999). Equitable estoppel prevents a signatory from relying on the underlying contract to make his or her claim against the nonsignatory. See id.; Gabriel M. Wilner, Domke on Commercial Arbitration § 10.07 (1983). Id. Not in Onvoy — or in any other case— does the Minnesota Supreme Court apply equitable estoppel, announce the appropriate test(s) for it, or provide any further insight into Minnesota equitable-estoppel law. Nevertheless, this court holds that “Minnesota appears to follow federal law regarding equitable estoppel,” ante at 927. Because the Minnesota Supreme Court has not addressed how to apply equitable estoppel, this court must predict how the court would rule. Progressive N. Ins. Co. v. McDonough, 608 F.3d 388, 390 (8th Cir.2010) (“If the highest state court has not decided an issue we must attempt to predict how the highest court would resolve the issue, with decisions of intermediate state courts being persuasive authority.”). Based on the discussion in Onvoy, the only appropriate prediction is that" }, { "docid": "3388083", "title": "", "text": "relied would not apply to the direct claims made by the individual plaintiffs,” id., at 1167, the Court of Appeal affirmed the trial court’s denial of the motion to arbitrate. Respondents have since amended their complaint to add a fifth claim. Citing the Court of Appeal’s decision, the trial court again denied KPMG’s motion to compel arbitration. The Act reflects an “emphatic federal policy in favor of arbitral dispute resolution.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 631, 105 S. Ct. 3346, 87 L. Ed. 2d 444 (1985); Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983) (noting that “questions of arbi-trability [must] ... be addressed with a healthy regard for the federal policy favoring arbitration”). This policy, as contained within the Act, “requires courts to enforce the bargain of the parties to arbitrate,” Dean Witter, supra, at 217, 105 S. Ct. 1238, 84 L. Ed. 2d 158, and “cannot possibly require the disregard of state law permitting arbitration by or against nonparties to the written arbitration agreement,” Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630, n. 5, 129 S. Ct. 1896, 173 L. Ed. 2d 832 (2009) (emphasis deleted). Both parties agree that whether the claims in the complaint are arbitrable turns on the question whether they must be deemed direct or derivative under Delaware law. That question of state law is not at issue here. What is at issue is the Court of Appeal’s apparent refusal to compel arbitration on any of the four claims based solely on a finding that two of them, the claim of negligent misrepresentation and the alleged violation of the FDUTPA, were nonarbitrable. In Dean Witter, the Court noted that the Act “provides that written agreements to arbitrate controversies arising out of an existing contract ‘shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in [565 U.S. 22] equity for the revocation of any contract.’ ” 470 U.S., at 218, 105 S. Ct. 1238, 84 L. Ed. 2d 158" }, { "docid": "17224169", "title": "", "text": "1121 (3d Cir.1993); Roby v. Corp. of Lloyd's, 996 F.2d 1353, 1360 (2d Cir.1993); Arnold v. Arnold Corp.-Printed Commc’ns for Bus., 920 F.2d 1269, 1281-82 (6th Cir.1990); Letizia v. Prudential Bache Secs., Inc., 802 F.2d 1185, 1187-88 (9th Cir.1986). . The text of Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009), leaves somewhat unclear, however, whether, in determining the amenability of a non-signatory party to an arbitration clause, a court must consult general principles of state contract law or the precise law of the state whose law governs the contract. As we just have noted, the Court at one point speaks in terms of traditional principles of contract law, id. at 631, 129 S.Ct. 1896, but at another, it speaks in terms of \"the relevant state contract law,” id. at 632, 129 S.Ct. 1896. We have chosen to interpret Carlisle as requiring reference to the provisions of the applicable state law. See Awuah v. Coverall N. Am., Inc., 703 F.3d 36, 42-43 (1st Cir.2012) (applying Massachusetts law). In this respect, we have viewed Carlisle as simply following the general proposition that in \"deciding whether an agreement to arbitrate is to be enforced, we normally apply ordinary state-law principles that govern the formation of contracts, including validity, revocability, and enforceability of contracts.” Bezio v. Draeger, 737 F.3d 819, 822-23 (1st Cir.2013); see also First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). . As we noted earlier, before the advent of Carlisle, the courts of New York State had recognized, emphatically, the need for a uniform federal rule to govern whether an agent is amenable to the arbitration agreement of a principal. See Hirschfeld Prods., Inc. v. Mirvish. 88 N.Y.2d 1054. 651 N.Y.S.2d 5, 673 N.E.2d 1232, 1233 (1996). There is no indication, and Grand does not suggest, that New York State would choose a different, and unique, rule to the contrary if it were to determine, in the wake of Carlisle, that a federal rule was no longer applicable." }, { "docid": "5114043", "title": "", "text": "denied the motion. The Court of Appeal affirmed, noting that “[n]one of the -plaintiffs . . . expressly assented in any fashion to [the audit services agreement] or the arbitration provision.” 51 So. 3d, at 1168. Thus, the court found, the arbitration clause could only be enforced if respondents’ claims were derivative in that they arose from the services KPMG performed for the Tremont defendants pursuant to the audit services agreement. Applying' Delaware law, which both parties agreed was applicable, the Court of Appeal concluded that the negligent misrepresentation and the violation of FDUTPA claims were direct rather than derivative. A fair reading of the opinion reveals nothing to suggest that the court came to the same conclusion about the professional malpractice and breach of fiduciary duty claims. Indeed, the court said nothing about those claims at all. Finding “the arbitral agreement upon which KPMG relied would not apply to the direct claims made by the individual plaintiffs,” id., at 1167, the Court of Appeal affirmed the trial court’s denial of the motion to arbitrate. Respondents have since amended their complaint to add a fifth claim. Citing the Court of Appeal’s decision, the trial court again denied KPMG’s motion to compel arbitration. The Act reflects an “emphatic federal policy in favor of arbitral dispute resolution.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 631 (1985); Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24-25 (1983) (noting that “questions of arbitrability [must] ... be addressed with a healthy regard for the federal policy favoring arbitration”). This policy, as contained within the Act, “requires courts to enforce the bargain of the parties to arbitrate,” Dean Witter, supra, at 217, and “cannot possibly require the disregard of state law permitting arbitration by or against nonparties to the written arbitration agreement,” Arthur Andersen LLP v. Carlisle, 556 U. S. 624, 630, n. 5 (2009) (emphasis deleted). Both parties agree that whether the claims in the complaint are arbitrable turns on the question whether they must be deemed direct or derivative under Delaware law. That question of" }, { "docid": "10160955", "title": "", "text": "of the issue of whether or not there had been a meeting of the minds on the agreement to arbitrate.” Id. (quoting Century Indem. Co. v. Certain Underwriters at Lloyd’s, London, 584 F.3d 513, 528 (3d Cir. 2009)). Thus, a motion to compel arbitration should only be granted if there is no genuine dispute as to any material fact and, after viewing facts and drawing inferences in favor of the non-moving party, the party moving to compel is entitled to judgment as a matter of law. Id. We note that under the FAA, “the presumption of arbitrability applies only where an arbitration agreement is ambiguous about whether it covers the dispute at hand. Otherwise, the plain language of the contract holds.” CardioNet, Inc. v. Cigna Health Corp., 751 F.3d 165, 173 (3d Cir. 2014) (citation omitted). III. The key issue in this case is whether Sunoco, as a nonsignatory to the Card Agreement and its arbitration clause, can compel White to arbitrate. The Supreme Court explained in Arthur Andersen LLP v. Carlisle that “ ‘traditional principles’ of state law allow a contract to be enforced by or against nonparties through ‘assumption, piercing the corporate veil, alter ego, incorporation by reference, third-party beneficiary theories, waiver and estoppel.’” 556 U.S. 624, 631, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009) (quoting 21 R. Lord, Williston on Contracts § 57:19 (4th ed. 2001)); see also Crawford Prof'l Drugs, Inc. v. CVS Caremark Corp., 748 F.3d 249, 261-62 (5th Cir. 2014) (“[P]rior decisions allowing non-signatories to compel arbitration based on federal common law, rather than state contract law ... have been modified to conform with Arthur Andersen.”). Sunoco argues that equitable estoppel prevents White from refusing arbitration against it as a non-signatory. The Arthur Andersen Court held that a non-party to an arbitration agreement may invoke section 3 of the FAA for a stay in federal court if the relevant state law allows a non-signatory to enforce the arbitration agreement against a signatory. 556 U.S. at 632, 129 S.Ct. 1896. To choose which state law will apply, “a federal court sitting in diversity must apply" }, { "docid": "12746403", "title": "", "text": "F.3d 249, 261-62 & n. 9 (5th Cir.2014) (collecting cases). The parties have not cited, and I have not found, any Wisconsin cases addressing the issue of when a non-signatory to an agreement may use equitable estoppel to enforce an arbitration clause that appears in that agreement. However, the general elements of equitable estoppel under Wisconsin law are the following: (1) action or non-action; (2) on the part of one against whom estoppel is asserted; (3) which induces reasonable reliance thereon by the other, either in action or non-action; (4) which is to the relying party’s detriment. See, e.g., Affordable Erecting, Inc. v. Neosho Trompler, Inc., 291 Wis.2d 259, 275, 715 N.W.2d 620 (2006). In the present case, none of these elements is present. Pagan has not taken any action or non-action that has induced reasonable reliance by Integrity or that has caused Integrity any detriment. Thus, if the issue of equitable estoppel is governed by state law, Pagan would not be estopped from avoiding the arbitration clause. Turning to federal law, the parties have not cited, and I have not found, any cases decided by the Supreme Court that address the question of when a nonsignatory to an agreement can use equitable estoppel to enforce an arbitration clause that appears in that agreement. In Arthur Andersen LLP v. Carlisle, the Supreme Court held that “traditional principles of state law,” including estoppel, could be applied to allow a nonsignatory to enforce an arbitration clause. 556 U.S. 624, 631, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009). However, the Court did not identify the circumstances under which it would be appropriate to apply equitable estoppel to prevent a party from avoiding arbitration with a nonsignatory. Id. at 632, 129 S.Ct. 1896 (“[W]e need not decide here whether the relevant state contract law recognizes equitable estoppel as a ground for enforcing contracts against third parties, what standard it would apply, and whether petitioners would be entitled to relief under it. These questions have not been briefed before us and can be addressed on remand.”). There is one case from the Seventh Circuit that" }, { "docid": "1308059", "title": "", "text": "the Agreement ... which cannot be amicably settled shall be referred to Arbitration .... ’ ”). The arbitration clauses in both cases were limited to disputes arising under a specific contract. Therefore, the appropriate inquiry for equitable estoppel was whether the claims were sufficiently “intertwined” with the contract. See PRM Energy, 592 F.3d at 835. Not so in this case. The arbitration agreement here covers all disputes “including but not limited to those arising out of or relating to any agreement between the parties.” As the district court correctly ruled, this arbitration agreement covers the entire relationship and course of dealing, and would include, for example, later purchase contracts and purchase transactions. The antitrust claims from the Retailers — that purchase prices were inflated — are certainly “intertwined” with and “rely on” the terms of those transactions and the course of dealing between the parties. See id. The court states: “In both PRM Energy Systems and CD Partners, the plaintiffs’ claims arose directly from violations of the terms of a contract containing an arbitration clause,” ante at 923. Precisely. This case presents a broader arbitration agreement that is not tied solely to claims arising under a specific contract. Yet the court treats them the same. I would hold that the arbitration agreement here compels arbitration based on equitable estop-pel. II. The court correctly notes that state law determines whether nonsignatories can enforce arbitration provisions. PRM Energy, 592 F.3d at 833 (8th Cir.2010), citing Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630-31, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009). Minnesota has recognized equitable estoppel as one method to enforce an arbitration agreement against a nonsig-natory. Onvoy, Inc. v. SHAL, LLC, 669 N.W.2d 344, 356 (Minn.2003), citing MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir.1999), abrogated on other grounds by Carlisle, 556 U.S. at 631, 129 S.Ct. 1896. The Minnesota Supreme Court’s only discussion of equitable estop-pel — in its entirety — is as follows: Federal cases have set out at least three principles on which a nonsignatory to a contract can compel arbitration: equitable estoppel, agency," }, { "docid": "14873362", "title": "", "text": "been rejected by the entity Rhodia S.A. asked the district court to defer to in its motion to dismiss or stay litigation in favor of arbitration. Thus, the Tribunal’s holding that it does not have jurisdiction over Rhodia, S.A. moots this appeal. Given the Tribunal’s ruling, it is now clear that the district court could not have enforced the arbitration clause as Rhodia, S.A. had urged. “The purpose of the FAA is to render agreements to arbitrate fully enforceable.” Mendez v. Puerto Rican International Companies, Inc., 553 F.3d 709, 711 (3d Cir.2009). Courts lack power to grant relief under the FAA unless there is an enforceable contractual right to arbitrate on the part of the moving party. See Bet-Ray Co. v. Chemrite (Pty) Ltd., 181 F.3d 435, 444 (3d Cir.1999). As we have explained, “[a]rbitration is strictly a matter of contract. If a party has not agreed to arbitrate, the courts have no authority to mandate that he do so,” absent circumstances that would justify applying one or more of the equitable doctrines we have mentioned. Id. As we have explained above, the threshold inquiry under §§ 3 and 4 of the FAA whether, under traditional contract law principles, an agreement to arbitrate is enforceable between the parties. See, e.g., Arthur Andersen LLP v. Carlisle, — U.S. -, 129 S.Ct. 1896, 1902, 173 L.Ed.2d 832 (2009) (“If a written arbitration provision is made enforceable against (or for the benefit of) a third party under state contract law, [§ 3’s] terms are fulfilled.”); DuPont, 269 F.3d at 194 (“a non-signatory cannot be bound to arbitrate unless it is bound under traditional principles of contract and agency law to be akin to a signatory under the underlying agreement.”) (citation and internal quotation marks omitted). The inquiry is the same for motions under §§ 3 and 4, viz., the inquiry is whether an enforceable agreement to arbitrate exists. See, e.g., Zosky v. Boyer, 856 F.2d 554, 556 (3d Cir.1988). (“[I]t makes no practical difference whether the court enters an order in an ongoing suit compelling arbitration or merely stays its own proceedings. In" }, { "docid": "17224168", "title": "", "text": "325 F.3d 54, 62 n. 2 (1st Cir.2003), cites with approval cases from other circuits acknowledging that non-signatories may have rights under an arbitration contract under certain circumstances. See id. (citing Grigson v. Creative Artists Agency, 210 F.3d 524, 527 (5th Cir. 2000); Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir. 1993), abrogated by Lawson v. Life of the S. Ins. Co., 648 F.3d 1166, 1171 (11th Cir.2011); Hughes Masonry Co. v. Greater Clark Cnty. Sch. Bldg. Corp., 659 F.2d 836, 841 n. 9 (7th Cir. 1981)). Additionally, in Sourcing Unlimited, Inc. v. Asimco International, Inc., we noted that \"[c]ourts routinely recognize that arbitration agreements may require arbitration even where all parties to the dispute did not sign the arbitration agreement.” 526 F.3d 38, 46 n. 8 (1st Cir.2008) (citing Zurich Am. Ins. Co. v. Watts Indus., Inc., 417 F.3d 682, 687 (7th Cir.2005)). . R.15 at 13. . Id. at 18, ¶ 16. . See, e.g., Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 7 F.3d 1110, 1121 (3d Cir.1993); Roby v. Corp. of Lloyd's, 996 F.2d 1353, 1360 (2d Cir.1993); Arnold v. Arnold Corp.-Printed Commc’ns for Bus., 920 F.2d 1269, 1281-82 (6th Cir.1990); Letizia v. Prudential Bache Secs., Inc., 802 F.2d 1185, 1187-88 (9th Cir.1986). . The text of Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009), leaves somewhat unclear, however, whether, in determining the amenability of a non-signatory party to an arbitration clause, a court must consult general principles of state contract law or the precise law of the state whose law governs the contract. As we just have noted, the Court at one point speaks in terms of traditional principles of contract law, id. at 631, 129 S.Ct. 1896, but at another, it speaks in terms of \"the relevant state contract law,” id. at 632, 129 S.Ct. 1896. We have chosen to interpret Carlisle as requiring reference to the provisions of the applicable state law. See Awuah v. Coverall N. Am., Inc., 703 F.3d 36, 42-43 (1st Cir.2012) (applying Massachusetts law). In" }, { "docid": "17224162", "title": "", "text": "party of all obligations to arbitrate. See, e.g., Arnold v. Arnold Corp. Printed Commc’ns for Bus., 920 F.2d 1269, 1281 (6th Cir.1990). Indeed, long before the signing of the contract in this case, our circuit, although not elaborating the rule or the reasons for it, had expressed its approval of the rule. Hilti, Inc. v. Oldach, 392 F.2d 368, 369 n. 2 (1st Cir.1968) (“If arbitration defenses could be foreclosed simply by adding as a defendant a person not a party to an arbitration agreement, the utility of such agreements would be seriously compromised.”). Notably, the highest court of New York State, the state whose law generally governs this contract in the absence of any federal preemption, has taken the view that the need to respect the basic policy of the FAA— the protection of the agreement to arbitrate — requires the use of the federal rule articulated by these circuits. See Hirschfeld Prods., Inc. v. Mirvish, 88 N.Y.2d 1054, 651 N.Y.S.2d 5, 673 N.E.2d 1232, 1233 (1996). The Supreme Court’s decision in Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009), calls into some question the propriety of relying on a rule based on federal law in this situation. In that case, Carlisle and his associates had consulted with the accounting firm Arthur Andersen LLP about minimizing their tax liability. Id. at 626, 129 S.Ct. 1896. On the basis of that consultation, Carlisle entered into management contracts with Bricolage Capital, LLC. Id. These management contracts contained arbitration clauses. Id. After the Internal Revenue Service determined that the tax strategy was illegal, Carlisle and his associates filed a diversity action against Arthur Andersen, Bricolage and others. Id. at 626-27, 129 S.Ct. 1896. Claiming that equitable estoppel required Carlisle and his associates to arbitrate these claims under the agreements with Bricolage, Arthur Andersen sought a stay of the diversity action pending arbitration. Id. at 627,129 S.Ct. 1896. In the course of its decision, the Supreme Court wrote: Because “traditional principles” of state law allow a contract to be enforced by or against nonparties to the" }, { "docid": "10921197", "title": "", "text": "(noting that we may affirm the district court’s judgment on any ground that finds support in the record). . Georgia courts have also applied equitable estoppel to situations in which a signatory to a contract asserts a claim against a nonsignatory that includes “allegations of substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract.” Arain, 592 S.E.2d at 100 (quotation marks and alteration omitted) (quoting MS Dealer, 177 F.3d at 947). That is not the situation here. . Although not applying Georgia law and not binding on this Court, the decisions of a couple of other circuits that have addressed this issue are in accord with our conclusion that equitable estoppel does not apply where a credit life insurer is attempting to compel arbitration of a dispute over the terms of the insurance policy under an arbitration clause contained in the underlying credit agreement. See Mundi v. Union Sec. Life Ins. Co., 555 F.3d 1042, 1047 (9th Cir.2009) (holding equitable estoppel did not apply because the claim was neither \"intertwined with” the credit agreement that provided for arbitration, nor did it \"arise out of or relate directly to” the credit agreement (quotation marks and alterations omitted)); Brantley v. Republic Mortg. Ins. Co., 424 F.3d 392, 396 (4th Cir.2005) (holding equitable estoppel did not apply because \"the mere existence of a loan transaction requiring plaintiffs to obtain [credit] insurance cannot be the basis for finding their ... claims, which are wholly unrelated to the underlying [credit] agreement, to be intertwined with that contract,” and \"the plaintiffs never attempted to rely on the [credit] contract to establish their claims” (quotation marks and alteration omitted)). PRYOR, Circuit Judge, concurring: I concur in the result, but for a different reason. I agree with the majority that in Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009), the Supreme Court clarified that state law, not federal law, governs whether a nonparty can enforce an arbitration clause against a party, but I doubt the conclusion of the majority that, under" } ]

[ { "docid": "22561177", "title": "", "text": "forcibly took her from her home, forcibly inserted an IUD, and forced her to undergo an abortion.. In addition, Chen was unable to explain certain discrepancies in her documentary evidence. Finally, the IJ found that her demeanor while testifying regarding her alleged forced abortion was “nonchalant[ ],” and that it appeared that she was simply restating, without additional detail, the facts set out in her affidavit. A.R. 67. Given the evidence in the record, we do not believe that a reasonable adjudicator would be compelled to find that Chen’s testimony was sufficiently “credible,” “persuasive,” and “specific,” 8 U.S.C. § 1158(b)(l)(B)(ii), to sustain her burden of proof without corroboration. Id. § 1252(b)(4)(B). In light of his finding that Chen’s testimony was unpersuasive and lacking in detail, the IJ properly concluded that Chen was required to present reasonably available corroborating evidence to support her application. See id. § 1158(b)(l)(B)(ii); Liu v. Holder, 575 F.3d 193, 196-97 (2d Cir.2009) (stating that, although “credible testimony alone may be enough to carry the alien’s burden of proof,” an IJ may “require that credible testimony of the alien be corroborated in circumstances in which one would expect corroborating evidence to be available and presented in the immigration hearing”) (internal quotation marks and alteration omitted). He specifically identified the type of corroborating evidence that Chen should have presented — namely the testi mony of her husband. A.R. 65-66. Importantly, the IJ identified the necessary corroborating evidence nine months in advance of Chen’s hearing, allowing her an opportunity to secure her husband’s testimony or explain why it was not available. See Ming Shi Xue v. BIA, 439 F.3d 111, 122 (2d Cir.2006) (suggesting that our precedent requires that “before denying an asylum petition because of insufficient coiToboration, an IJ [must give] adequate and meaningful notice to the applicant of evidence that the IJ believed was significant and missing”). The question, therefore, is whether Chen’s husband’s testimony was reasonably available, in light of her explanation that he refused to testify out of fear that he would be arrested. We have not had occasion to decide whether an undocumented alien’s" } ]

[ { "docid": "20675732", "title": "", "text": "hand, grabbed my hair and beat me several times.” Mr. Li also testified the police encouraged other inmates to beat him, but he failed to apprise Officer Kuriakose of this detail during his asylum interview. When questioned about the discrepancies between his reports and testimony, Mr. Li often responded he did not clearly remember, or recall exactly, what he had said earlier. In light of the numerous discrepancies, Mr. Li’s evasiveness and non-responsive explanations, and Mr. Li’s unpersuasive attempts to reconcile his inconsistent statements, the IJ found Mr. Li not credible. He further found none of Mr. Li’s corroborative evidence, including the statement provided by Mr. Li’s brother, was sufficiently detailed, relevant, or persuasive enough to rectify Mr. Li’s testimony or otherwise establish he met the definition of a refugee. The adverse credibility determination was supported by substantial evidence in the record. We uphold the adverse credibility determination, as a reasonable adjudicator would not be compelled to conclude to the contrary. 8 U.S.C. § 1252(b)(4)(B). We further find the BIA’s decision that Mr. Li is not eligible for asylum is supported by substantial evidence. Because we hold Mr. Li failed to demonstrate he was eligible for asylum, we also hold he failed to meet the higher burden of proof required for obtaining withholding of removal. See Falaja, 418 F.3d at 897. Furthermore, any claim Mr. Li would have sought under the CAT has been waived, because he has not raised this issue on appeal. We further conclude any such claim would fail, as it would rest on his discredited testimony. See Ali, 686 F.3d at 538-39; Falaja, 418 F.3d at 897. Finally, we find no error in the IJ’s exercise of discretion when he denied Mr. Li’s application for voluntary departure. III. Because we uphold the agency’s adverse credibility finding, Mr. Li cannot prevail on his challenges to the decisions of the IJ and BIA. His asylum and withholding claims likewise fail, as they rest on his discredited testimony. Accordingly, we deny the petition for review. . A \"home” or \"underground” church is a church not sanctioned by the Chinese" }, { "docid": "22745764", "title": "", "text": "of the applicant's claim.” 8 U.S.C. § 1158(b)(l)(B)(iii). . We do not intend to suggest that under the totality of the circumstances each inconsistency must be material in the sense of important to the petitioner's well-founded fear of persecution; such a requirement would contradict the REAL ID Act's plain text. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir.2008). Indeed, under the REAL ID Act, even minor inconsistencies, in proper circumstances, will support an adverse credibility determination. By persuasive analogy, in the context of administrative proceedings before the Federal Communications Commission, the Supreme Court explained how minor inconsistencies may prove probative of an individual's veracity The fact of concealment may be more significant than the facts concealed. The willingness to deceive a regulatory body may be disclosed by immaterial and useless deceptions as well as by material and persuasive ones. We do not think it is an answer to say that the deception was unnecessary and served no purpose. FCC v. WOKO, Inc., 329 U.S. 223, 227, 67 S.Ct. 213, 91 L.Ed. 204 (1946). Similarly, even a petitioner’s minor inconsistencies, when aggregated or when viewed in light of the total circumstances, may undermine credibility. Cf. United States v. Arvizu, 534 U.S. 266, 274-75, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (concluding that in the \"totality of the circumstances” analysis required for a reasonable-suspicion determination in the Terry context, inferences may be drawn from the cumulative impact of activities that appear innocent when viewed individually). . Nor is the flexibility of Sidhu s rule a mere theoretical possibility: we concluded in Ghebchoub that obtaining an affidavit from a \"close relative” living overseas — there, Western Europe — would be \"a relatively uncomplicated task” and would \"not pose the type of particularized evidentiary burden that would excuse corroboration.” 257 F.3d at 1044-45 (citation omitted) (concluding that such corroborating evidence would be easily available and upholding the BIA’s conclusion that Chebcoub was not credible because he did not produce it). . Because concluding that the adverse credibility determination is based on substantial evidence is sufficient to deny Shrestha’s petition as" }, { "docid": "22297274", "title": "", "text": "the parties submitted and we so ordered a stipulation to remand the case to the BIA for it to “explain the bases for its conclusion that the forcible insertion of an IUD, and any attendant pain or discomfort, does not fall within the amended definition of refugee.” Wong v. Ashcroft, No. 03-40823-ag, at 2 (2d Cir. Apr. 28, 2006) (Stipulation and Order of Settlement and Dismissal). The BIA provided that explanation in a precedential opinion filed on October 6, 2008. See In re M-F-W-, 24 I. & N. Dec. 633. Rather than discuss that opinion in detail here, we do so in addressing Wong’s petition challenges. II. Discussion A. Jurisdiction and Standards of Review Our jurisdiction to review final orders of removal is established by 8 U.S.C. § 1252. Where, as here, the BIA issues a decision independent of the IJ, we review the BIA’s decision alone. See Xia Fan Huang v. Holder, 591 F.3d at 127; Belortaja v. Gonzales, 484 F.3d 619, 623 (2d Cir.2007). We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). Thus, because the agency assumed the credibility of Wong’s factual account despite reservations raised by record inconsistencies, we do likewise. We review questions of law and the BIA’s application of law to undisputed fact de novo. See Yanqin Weng v. Holder, 562 F.3d at 513. Nevertheless, when reviewing the BIA’s interpretation of the INA, a statute it administers, we defer to the agency’s interpretation so long as it is reasonable in light of the two-step analysis set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Xia Fan Huang v. Holder, 591 F.3d at 129-30 (deferring to agency interpretation of INA as reasonable); cf. Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309 (2d Cir.2007) (en banc) (rejecting agency interpretation of INA as contrary" }, { "docid": "20400947", "title": "", "text": "credit her testimony and the country reports. Those reasons are sufficiently clear for us to review and, as we explained, had a basis in the record. See Pan v. Gonzales, 489 F.3d 80, 87 (1st Cir.2007) (“Although an IJ may not simply ignore substantial testimonial and documentary proof, she need not discuss ad nauseam every piece of evidence. So long as the IJ has given reasoned consideration to the evidence as a whole, made supportable findings, and adequately explained her reasoning, no more is exigible.”) (internal citation omitted). Substantial evidence supports the IJ’s finding that Weng did not meet her burden on any of the forms of relief she sought. The underlying issue before the IJ was whether she had shown past persecution or likely future persecution for her religious beliefs. As the BIA and IJ noted, despite being told to tell DHS officers why she feared returning to China, Weng repeatedly failed to mention religious persecution and offered a host of alternative explanations. The IJ fairly weighed this inconsistency against Weng’s explanation for why she lied on several points and found her explanation unpersuasive. We cannot say the record compels a contrary conclusion. Weng makes a final, incorrect argument. She accuses the BIA of a procedural error: conflating the REAL ID Act’s requirement that discrepant testimony go to the heart of the claim with the requirement that the IJ’s findings not rest on conjecture and speculation. The BIA did no such thing. It rejected Weng’s argument that the IJ relied on conjecture and speculation by pointing to facts in the record supporting the IJ’s determination. It also noted the inconsistencies the IJ relied on went to the heart of Weng’s claim. III. The petition for review is denied. . Weng testified that, when she was four years old, her parents sent Weng and her sister to live with relatives so her parents could try to have a son. She said that the Chinese government forced her mother to undergo a tubal ligation after Weng’s mother gave birth to a son. . Weng did not explain the apparent inconsistency between" }, { "docid": "20400949", "title": "", "text": "the date on this receipt and her testimony that her family bailed her out of jail on Sunday, November 16. . Although the IJ and BIA did not rely on this point, we note that applicants for asylum must show, not just that they suffered past persecution on a protected ground, but that they are unable or unwilling to return to their home country for that reason. See 8 C.F.R. § 208.13(b)(1) (defining a past-persecution “refugee” as someone who has \"suffered persecution in the past ... on account of race, religion, nationality, membership in a particular social group, or political opinion, and is unable or unwilling to return to ... that country owing to such persecution”) (emphasis added). . Weng argues that the BIA engaged in impermissible factfinding by noting that Weng, despite claiming she was afraid to criticize the Chinese government, said she opposed its family planning policies during her credible-fear interview. The BIA was not finding new facts; it was pointing to further support for the IJ's finding that Weng was not credible because her statements were inconsistent. See 8 C.F.R. § 1003.1(d)(3)(f) (permitting the BIA to review an IJ's credibility finding for clear error). In any event, the BIA did not rely only on this fact to affirm the IJ. . We cannot find, given our standard of review, that the documents themselves would compel a finding of persecution, especially in the absence of credible testimony on Weng’s part. That burden is \"heavy,” and petitioners must show \"more than harassment or spasmodic mistreatment by a totalitarian regime.” Guzman v. INS, 327 F.3d 11, 15 (1st Cir.2003); see, e.g., Bocova v. Gonzales, 412 F.3d 257, 263 (1st Cir.2005) (affirming the BIA's conclusion that two beatings \"over an eight-year span, occurring more than twenty-five months apart” were not \"persecution”); Guzman, 327 F.3d at 15-16 (affirming the BIA’s holding that the petitioner \"f[ell] well short of establishing 'past persecution’ ” when he suffered \"superficial physical harm” after being kidnapped, held for three hours, and beaten). Weng’s documents purporting to show she was warned not to practice Zun Wang and that" }, { "docid": "20400943", "title": "", "text": "affirmed the IJ’s ruling” but also “discussed some of the bases for the IJ’s opinion, we review both the IJ’s and BIA’s opinions.” Cuko v. Mukasey, 522 F.3d 32, 37 (1st Cir.2008)(internal quotation marks omitted). We also review the IJ’s credibility determination when the BIA adopted it. Id. Petitioners for asylum have the burden to prove they are “refugee[s],” 8 U.S.C. § 1158(b)(l)(B)(i), who are people “unable or unwilling” to return to their home countries “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” id. § 1101(a)(42)(A). Weng’s brief attacks the ground the BIA and IJ gave for rejecting her petition: that her testimony lacked credibility. We review adverse credibility determinations for substantial evidence. Mam v. Holder, 566 F.3d 280, 283 (1st Cir.2009). We will not disturb an adverse-credibility finding “unless [a] petitioner!] can show the record evidence, considered as a whole, “would compel a reasonable factfinder to make a contrary determination.’ ” Id. (quoting Cuko, 522 F.3d at 37). There is no real dispute that the discrepancies the BIA or IJ relied on are “actually present in the administrative record” and “generate specific and cogent reasons” to infer the petitioner’s testimony was not credible. Ru Xiu Chen v. Holder, 579 F.3d 73, 77 (1st Cir.2009). There is also no serious dispute that these discrepancies went to the heart of Weng’s claim and were “not merely peripheral or trivial matters,” a legal requirement before the REAL ID Act’s effective date. See Bebri v. Mukasey, 545 F.3d 47, 50 & n. 1 (1st Cir.2008). This case turns on the IJ’s finding—and the BIA’s affirmance'—that the petitioner’s explanation was not credible and so she failed to give “a persuasive explanation for these discrepancies.” Ru Xiu Chen, 579 F.3d at 77 (quoting Mam, 566 F.3d at 283). Our review, as always, is whether substantial evidence supports the IJ’s determination that Weng had not met her burden of proof. See id. Weng argues that the IJ’s decision to reject her explanation was based on conjecture and speculation and not" }, { "docid": "22650233", "title": "", "text": "ensuing weeks, the officials returned to Weng’s home, searching for her. In September 2004, Weng left China and eventually entered this country without documentation. She believes that the family planning authorities are still searching for her and seek to arrest her. In February 2005, Weng applied for political asylum, withholding of removal, and CAT protection. The IJ denied Weng all relief. First, the IJ found that Weng was not credible because her story about the woman she ostensibly freed contradicted country condition reports and Chinese family planning regulations. Second, the IJ found that Weng’s provision of post-surgical care to women who had undergone abortions, paired with her assistance to a family planning official in guarding patients on August 19, 2004, demonstrated that Weng “played a role critical to the effect of enforcement of the coercive population control policy in China.” Having found that Weng was a “persecutor,” the IJ concluded that she was barred from asylum and withholding of removal. The IJ further found Weng ineligible for CAT protection because she had not shown that, more likely than not, she would be tortured if returned to China. Weng appealed and the BIA dismissed the appeal. Adopting and affirming the IJ’s decision (except with respect to the adverse credibility finding), the BIA found that Weng was subject to the persecutor bar and, as a result, was ineligible for asylum or withholding of removal. Adverting to our decision in Zhang Jian Xie v. INS, 434 F.3d 136, 143 (2d Cir.2006), the BIA characterized Weng’s conduct as “active and [as having] direct consequences for the victims” of China’s family planning policy. The BIA also affirmed the IJ’s denial of Weng’s application for CAT relief. This appeal followed. DISCUSSION Because the BIA adopted and affirmed the IJ’s decision, we review the two decisions in tandem. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). The “substantial evidence” standard of review applies, Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir.2006), and we uphold the IJ’s factual findings if they are supported by “reasonable, substantial and probative evidence in the record,” Lin Zhong v." }, { "docid": "23259759", "title": "", "text": "amounts to clear and convincing evidence of the date of a petitioner’s entry into the United States. Rather, we hold that the failure of an IJ to give any consideration to such an undeniably probative piece of evidence amounts to a denial of the traditional standards of fairness that due process demands. We therefore vacate the IJ’s decision and remand to the agency for reconsideration of the timeliness of Zheng’s application. B. The IJ’s Finding That Zheng Was Not Credible. As described above, the IJ held that, besides the untimeliness of his application, Zheng’s claim for asylum should be denied because he comprehensively failed to testify credibly in support of his claim. Specifically, the IJ stated that he did not: find the respondents claim to be plausible or believable.... The Court [ ] also found that the respondents presentations appear to be inconsistent, contradictory both with his direct testimony offered to the Court as well as explanations that he attempted to provide with questions that contained inconsistencies or problems, problems of coherency and plausibility with his claim. It gave the Court the impression certainly with regard to the respondents demeanor that he was making up some of his testimony, particularly with regard to medical evidence that was available, was not available to corroborate his claim. We are very much aware that this Court must afford “particular deference to an IJ’s credibility finding.” Biao Yang v. Gonzales, 496 F.3d 268, 271 (2d Cir.2007) (internal quotation marks omitted). Such deference has its limits, however. Specifically, an IJ’s credibility finding must be based on “specific, cogent” reasons that bear a “legitimate nexus” to the credibility of the applicant’s claim of persecution. Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003) (internal quotation marks omitted). We conclude that the IJ’s finding that Zheng had not testified credibly in support of his asylum claim is not entitled to deference because, in two crucial respects, the matters upon which the IJ found Zheng to be unworthy of belief bear no legitimate nexus to his claim that he faces persecution should he be returned to China. We" }, { "docid": "12105951", "title": "", "text": "Act, Pub.L. 109-13, 119 Stat. 302 (2005), the credibility definition at issue here is subject to a provision of that Act, codified at 8 U.S.C. § 1158(b)(l)(B)(iii), rather than to the preexisting “heart of the matter” rule. The earlier rule required that an adverse credibility finding be based on inconsistencies that “pertain to facts central to the merits of the alien’s claims.” Bebri, 545 F.3d at 50 (quoting Zheng v. Gonzales, 464 F.3d 60, 63 (1st Cir.2006)). The new statute disavows that test; it provides that a factfinder may base a credibility determination on inconsistencies, inaccuracies, or falsehoods “without regard to whether [any such inconsistency, inaccuracy, or falsehood] goes to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii). We therefore proceed to evaluate the IJ’s adverse credibility determination under that standard and in light of the totality of the circumstances. See, e.g., Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008); Kadia v. Gonzales, 501 F.3d 817, 822 (7th Cir.2007); Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1233 (11th Cir.2006). The petitioner attempts to circumvent this obstacle by arguing that the new test includes a rationality requirement, thus rendering it functionally equivalent to the old “heart of the matter” rule. This reasoning relies heavily on a footnote in Lin v. Mukasey, 521 F.3d 22, 28 n. 3 (1st Cir.2008). The petitioner reads the Lin footnote as indicating that the new statute should be interpreted narrowly. We reject that crabbed reading. In Lin, we examined the background of this new provision of the REAL ID Act, noting that its principal purpose was to eliminate a limitation, elaborated by the Ninth Circuit, on the type of inconsistencies upon which an IJ could rely in assessing credibility. See id. (citing Abovian v. INS, 257 F.3d 971, 977-79 (9th Cir.2001) (Kozinski, J., dissenting from denial of rehearing en banc)). The net effect of the neoteric provision was to scrap the “heart of the matter” rule. See id.; see also H.R.Rep. No. 418, 109th Cong. (2005), reprinted at 151 Cong. Rec. H536-41 (daily ed. Feb. 10, 2005). However, we warned" }, { "docid": "12105950", "title": "", "text": "namely, race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1101(a)(42)(A); see also Makhoul v. Ashcroft, 387 F.3d 75, 80-81 (1st Cir.2004). An alien’s own testimony may be adequate to carry this burden. Bebri, 545 F.3d at 50. Nevertheless, the alien’s testimony need not be taken at face value; that testimony may be discounted or disregarded if the IJ reasonably deems it to be “speculative or unworthy of credence.” Id. Hence, “an adverse credibility determination can prove fatal” to an asylum claim. Id. (quoting Pan, 489 F.3d at 86). We must inquire, then, as to whether this is such a case. In denying asylum, the IJ concluded that the petitioner’s story was incredible. The petitioner disputes that characterization, alleging that the adverse credibility determination placed excessive weight on trivial inconsistencies. Upon close perscrutation, we find that allegation unfounded. Before beginning our explanation, we first must answer a threshold question. The petitioner applied for asylum on January 11, 2006. Because his application postdates the enactment of the REAL ID Act, Pub.L. 109-13, 119 Stat. 302 (2005), the credibility definition at issue here is subject to a provision of that Act, codified at 8 U.S.C. § 1158(b)(l)(B)(iii), rather than to the preexisting “heart of the matter” rule. The earlier rule required that an adverse credibility finding be based on inconsistencies that “pertain to facts central to the merits of the alien’s claims.” Bebri, 545 F.3d at 50 (quoting Zheng v. Gonzales, 464 F.3d 60, 63 (1st Cir.2006)). The new statute disavows that test; it provides that a factfinder may base a credibility determination on inconsistencies, inaccuracies, or falsehoods “without regard to whether [any such inconsistency, inaccuracy, or falsehood] goes to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii). We therefore proceed to evaluate the IJ’s adverse credibility determination under that standard and in light of the totality of the circumstances. See, e.g., Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008); Kadia v. Gonzales, 501 F.3d 817, 822 (7th Cir.2007); Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1233 (11th Cir.2006)." }, { "docid": "22650234", "title": "", "text": "more likely than not, she would be tortured if returned to China. Weng appealed and the BIA dismissed the appeal. Adopting and affirming the IJ’s decision (except with respect to the adverse credibility finding), the BIA found that Weng was subject to the persecutor bar and, as a result, was ineligible for asylum or withholding of removal. Adverting to our decision in Zhang Jian Xie v. INS, 434 F.3d 136, 143 (2d Cir.2006), the BIA characterized Weng’s conduct as “active and [as having] direct consequences for the victims” of China’s family planning policy. The BIA also affirmed the IJ’s denial of Weng’s application for CAT relief. This appeal followed. DISCUSSION Because the BIA adopted and affirmed the IJ’s decision, we review the two decisions in tandem. Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). The “substantial evidence” standard of review applies, Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir.2006), and we uphold the IJ’s factual findings if they are supported by “reasonable, substantial and probative evidence in the record,” Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 116 (2d Cir.2007) (internal quotation marks omitted). By contrast, “[w]e review de novo questions of law and the [BIA’s] application of law to undisputed fact.” Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). We therefore review de novo the BIA’s conclusion that Weng is subject to the persecutor bar of the Immigration and Nationality Act (“INA”). To be eligible for asylum, an applicant must establish her status as a “refugee” under the INA. 8 U.S.C. § 1158(b)(1)(B). The applicant may do so by demonstrating either that she has suffered “persecution” or that she has “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.... ” 8 U.S.C. § 1101(a)(42). The statutory definition of “refugee,” however, incorporates the “persecutor bar”: the definition ex- eludes “any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of’ a protected ground. Id.; see also 8 U.S.C. § 1158(b)(2)(A)(i). Consequently, if Weng is a persecutor," }, { "docid": "20400946", "title": "", "text": "we cannot do. The IJ gave a cogent explanation for rejecting Weng’s explanation that was supported by substantial evidence in the record, not mere speculation. Weng’s testimony that she was unaware that her answers would be held confidential is directly contradicted by her credible-fear worksheet and the information both immigration officers provided. Weng was given Chinese translations of all statements and documents and affirmed that she understood her rights. Weng’s argument that the IJ and BIA ignored documentary evidence she provided fails for similar reasons. We can infer that the IJ reviewed the documents Weng submitted but found they did not independently establish her case or overcome his doubts about her credibility. The IJ did not make a credibility finding until after he marked all her documents, heard her testimony, and retired to evaluate the evidence. He discussed two of those documents—the country reports—in his decision. We can also infer that the IJ rejected these documents, which did not add new facts but merely supported Weng’s testimony, for the same reasons he chose not to credit her testimony and the country reports. Those reasons are sufficiently clear for us to review and, as we explained, had a basis in the record. See Pan v. Gonzales, 489 F.3d 80, 87 (1st Cir.2007) (“Although an IJ may not simply ignore substantial testimonial and documentary proof, she need not discuss ad nauseam every piece of evidence. So long as the IJ has given reasoned consideration to the evidence as a whole, made supportable findings, and adequately explained her reasoning, no more is exigible.”) (internal citation omitted). Substantial evidence supports the IJ’s finding that Weng did not meet her burden on any of the forms of relief she sought. The underlying issue before the IJ was whether she had shown past persecution or likely future persecution for her religious beliefs. As the BIA and IJ noted, despite being told to tell DHS officers why she feared returning to China, Weng repeatedly failed to mention religious persecution and offered a host of alternative explanations. The IJ fairly weighed this inconsistency against Weng’s explanation for why" }, { "docid": "22541045", "title": "", "text": "ever arrested or beaten; (2) inconsistencies in his testimony regarding the chronology of events; (3) an implausible and inconsistent account of how he escaped from detention; (4) the IJ’s observation that Yang appeared to be “simply making up testimony when confronted by inconsistencies”; (5) contradictory and implausible testimony regarding his employment; and (6) contradictory evidence regarding when Yang decided to leave China. These findings, which are supported by the record, are more than sufficient to support an adverse credibility determination. Furthermore, Yang acknowledged making the inconsistent statements at the airport, and because there is no evidence of any coercion in the interview transcript—and Yang provided no other indication that the interview transcript was unreliable—the IJ properly relied on that transcript and rejected Yang’s various explanations as inadequate. See Ramsameachire v. Ashcroft, 357 F.3d 169, 179-80 (2d Cir.2004). Moreover, the IJ made clear that his findings were based, in part, on Yang’s demeanor, and we normally afford such findings particular deference. See Zhou Yun Zhang, 386 F.3d at 73. Accordingly, the adverse credibility finding underlying the denial of asylum and withholding of removal is upheld. We note that while Yang’s application included a request for CAT relief, the IJ did not address that request anywhere in his decision, nor did the BIA. Although we see little evidence in the record to support that claim, it is for the agency to make eligibility determinations in the first instance, see INS v. Orlando Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002). Because, for the reasons set forth below, we remand this case to the agency, the agency should also address Yang’s eligibility for CAT relief on remand. B. Ming Liang Lin The IJ’s adverse credibility determination in Lin’s case is also supported by substantial evidence. The IJ based her determination on, inter alia, inconsistencies in Lin’s testimony and application re garding when he was baptized. Since Lin’s claims of persecution are based on his practice of religion, his inconsistent testimony regarding when and how many times he had been baptized constitutes a substantial discrepancy. The IJ, therefore, properly relied" }, { "docid": "22297275", "title": "", "text": "evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir.2009). Thus, because the agency assumed the credibility of Wong’s factual account despite reservations raised by record inconsistencies, we do likewise. We review questions of law and the BIA’s application of law to undisputed fact de novo. See Yanqin Weng v. Holder, 562 F.3d at 513. Nevertheless, when reviewing the BIA’s interpretation of the INA, a statute it administers, we defer to the agency’s interpretation so long as it is reasonable in light of the two-step analysis set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Xia Fan Huang v. Holder, 591 F.3d at 129-30 (deferring to agency interpretation of INA as reasonable); cf. Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309 (2d Cir.2007) (en banc) (rejecting agency interpretation of INA as contrary to unambiguous statutory language). B. The Statutory Scheme The INA authorizes the Attorney General, in his discretion, to grant asylum to an alien who qualifies as a “refugee,” defined under the INA as one who is “unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of [his or her native] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.... ” 8 U.S.C. § 1101(a)(42); see also 8 C.F.R. § 1208.14(a). An asylum applicant bears the burden of establishing through credible evidence that he suffered past persecution or has a well-founded fear of future persecution if removed from the United States. See 8 C.F.R. § 1208.13(a)-(b); Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 284 (2d Cir.2009). A showing of past persecution gives rise to a rebuttable presumption of a well-founded fear of future persecution. See id. (citing Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir.2005)). How to apply" }, { "docid": "20400942", "title": "", "text": "was fleeing religious persecution. The BIA concluded these inconsistencies undermined Weng’s credibility and went to the heart of her claim. The BIA also noted that the IJ had considered and rejected Weng’s argument that she had not mentioned religious persecution earlier because she feared the Chinese government would learn of her asylum application opposing one of its policies. The BIA observed that, before her credible-fear interview, Weng was advised in Mandarin that the United States could not report her statements. It also pointed out that Weng had felt comfortable noting her opposition to the Chinese government’s family-planning policies. The BIA held that Weng had not “met her burden of proof for asylum under section 208 of the Immigration and Nationality Act,” a conclusion that necessarily incorporated findings that Weng had failed to prove past persecution or a likelihood of future persecution. It also ruled that she had not met her burden to show eligibility for withholding of removal or protection under the CAT. Weng petitioned this court for review. II. When “the BIA adopted and affirmed the IJ’s ruling” but also “discussed some of the bases for the IJ’s opinion, we review both the IJ’s and BIA’s opinions.” Cuko v. Mukasey, 522 F.3d 32, 37 (1st Cir.2008)(internal quotation marks omitted). We also review the IJ’s credibility determination when the BIA adopted it. Id. Petitioners for asylum have the burden to prove they are “refugee[s],” 8 U.S.C. § 1158(b)(l)(B)(i), who are people “unable or unwilling” to return to their home countries “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” id. § 1101(a)(42)(A). Weng’s brief attacks the ground the BIA and IJ gave for rejecting her petition: that her testimony lacked credibility. We review adverse credibility determinations for substantial evidence. Mam v. Holder, 566 F.3d 280, 283 (1st Cir.2009). We will not disturb an adverse-credibility finding “unless [a] petitioner!] can show the record evidence, considered as a whole, “would compel a reasonable factfinder to make a contrary determination.’ ” Id. (quoting Cuko, 522 F.3d at 37)." }, { "docid": "22541063", "title": "", "text": "to what extent the IJ is required, if at all, to inform the applicant during the course of the proceedings that he or she is considering a frivolousness determination before he or she renders such a determination. CONCLUSION For the foregoing reasons, we Deny the petitions for review with respect to the IJs’ adverse credibility rulings, GRANT the petitions for review with respect to the frivolousness determinations, VaCate the frivolousness determinations, ReMAnd the cases to the BIA for further proceedings consistent with this opinion, and GRANT stays of removal pending a decision from the BIA on remand. . For example, the IJ erred in: (1) relying on Lin’s infrequent attendance at church to discredit him without considering his testimony that he did not usually have Sundays off and attended whenever he did have time off; (2) relying on Lin's testimony that he was baptized in an official church to find that such a baptism would not have triggered persecution, ignoring Lin's testimony that he was persecuted not for being baptized but rather for attending an underground church; (3) finding an inconsistency between a statement in Lin’s application that he was targeted for preaching and church attendance while ignoring his explanation that he thought asking people to go to church was preaching, see Cao He Lin, 428 F.3d at 403; (4) relying on the vagueness of Lin's testimony concerning his religion and time in prison without probing for details, see Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 152 (2d Cir.2003), overruled on other grounds by Shi Liang Lin, 494 F.3d 296; and (5) stating that Lin offered different explanations for a discrepancy between his household registry and a letter during cross-examination and in his affidavit. . The alien may still be eligible for withholding of removal where a deportation would result in dire persecutions. See 8 C.F.R. § 208.20. . The BIA noted in Y-L—Üist the Form 1-589, which is the asylum application, \"contains a written warning that '[a]pplicants determined to have knowingly made a frivolous application for asylum will be permanently ineligible for any benefits under the Immigration and" }, { "docid": "20400944", "title": "", "text": "There is no real dispute that the discrepancies the BIA or IJ relied on are “actually present in the administrative record” and “generate specific and cogent reasons” to infer the petitioner’s testimony was not credible. Ru Xiu Chen v. Holder, 579 F.3d 73, 77 (1st Cir.2009). There is also no serious dispute that these discrepancies went to the heart of Weng’s claim and were “not merely peripheral or trivial matters,” a legal requirement before the REAL ID Act’s effective date. See Bebri v. Mukasey, 545 F.3d 47, 50 & n. 1 (1st Cir.2008). This case turns on the IJ’s finding—and the BIA’s affirmance'—that the petitioner’s explanation was not credible and so she failed to give “a persuasive explanation for these discrepancies.” Ru Xiu Chen, 579 F.3d at 77 (quoting Mam, 566 F.3d at 283). Our review, as always, is whether substantial evidence supports the IJ’s determination that Weng had not met her burden of proof. See id. Weng argues that the IJ’s decision to reject her explanation was based on conjecture and speculation and not supported by substantial evidence. She admits that she gave inconsistent statements during her credible-fear and earlier interviews. But she says that her explanation—that she feared she would be deported and was not aware DHS would keep her statements confidential—was convincing and consistent with the record; consequently, the IJ should not have rejected it. We still apply the substantial-evidence test. Even if the explanation for an inconsistency is on its face reasonable and consistent, that does not mean the explanation is true or that the IJ must accept it. It also does not mean that an IJ cannot evaluate a superficially reasonable explanation by weighing its plausibility or assessing an applicant’s credibility. The IJ is responsible for weighing these factors and reaching a credibility determination, which we then must affirm as long as “the IJ has given reasoned consideration to the evidence and has provided a cogent explanation for his finding.” Munoz-Monsalve v. Mukasey, 551 F.3d 1, 5 (1st Cir.2008). Weng’s petition essentially asks this court to reevaluate anew the IJ’s rejection of her explanation, which" }, { "docid": "19676303", "title": "", "text": "Oy-ekunle v. Gonzales, 498 F.3d 715, 716 (7th Cir.2007); Dong v. Gonzales, 421 F.3d 573, 578 (7th Cir.2005), it is permissible for an IJ to contrast an asylum applicant’s testimony with specific historical facts provided in a country report, see Huang v. Gonzales, 453 F.3d 942, 947 (7th Cir.2006), and that is what the IJ did here. Once Musollari’s credibility was called into question, the IJ was entitled to consider the lack of corroboration for other aspects of his testimony. See Capric, 355 F.3d at 1085-86 (“[I]f the IJ finds the testimony to be incredible, then a convincing explanation of the discrepancies or extrinsic- — and credible — corroborating evidence is required.”); see also Ikama-Obambi v. Gonzales, 470 F.3d 720, 725 (7th Cir.2006) (“[A]n IJ may disbelieve an applicant because she fails to provide corroborating evidence, and subsequently deny her claim.”). Despite having nearly two and a half years to compile his case, Musollari presented no evidence to corroborate the core factual aspects of his claim: his arrests in 1997 and 1998 — during which he testified that he was mistreated — or the ransacking of his house by the police in September of 1997. The IJ noted that corroborating testimony or affidavits from family or friends might reasonably have been obtained “insofar as Albania is not [now] experiencing any civil strife or war and that there are regular commercial contacts and mail contacts with that country.” Finally, the IJ relied on Musollari’s admission that he gave false information to the American Embassy when applying for a travel visa. “Inconsistencies that do not relate to the basis of the applicant’s alleged fear of persecution are less probative than inconsistencies that do.” Balogun, 374 F.3d at 504; see also Korniejew v. Ashcroft, 371 F.3d 377, 383-84 (7th Cir. 2004) (finding that a discrepancy on a collateral matter cannot “form the basis for an adverse credibility finding” on its own). “Nevertheless, multiple misrepresentations to Agency officials can serve as a factor in the credibility calculus.... ” Balogun, 374 F.3d at 504. Accordingly, although the errors in the IJ’s analysis give us pause," }, { "docid": "20400945", "title": "", "text": "supported by substantial evidence. She admits that she gave inconsistent statements during her credible-fear and earlier interviews. But she says that her explanation—that she feared she would be deported and was not aware DHS would keep her statements confidential—was convincing and consistent with the record; consequently, the IJ should not have rejected it. We still apply the substantial-evidence test. Even if the explanation for an inconsistency is on its face reasonable and consistent, that does not mean the explanation is true or that the IJ must accept it. It also does not mean that an IJ cannot evaluate a superficially reasonable explanation by weighing its plausibility or assessing an applicant’s credibility. The IJ is responsible for weighing these factors and reaching a credibility determination, which we then must affirm as long as “the IJ has given reasoned consideration to the evidence and has provided a cogent explanation for his finding.” Munoz-Monsalve v. Mukasey, 551 F.3d 1, 5 (1st Cir.2008). Weng’s petition essentially asks this court to reevaluate anew the IJ’s rejection of her explanation, which we cannot do. The IJ gave a cogent explanation for rejecting Weng’s explanation that was supported by substantial evidence in the record, not mere speculation. Weng’s testimony that she was unaware that her answers would be held confidential is directly contradicted by her credible-fear worksheet and the information both immigration officers provided. Weng was given Chinese translations of all statements and documents and affirmed that she understood her rights. Weng’s argument that the IJ and BIA ignored documentary evidence she provided fails for similar reasons. We can infer that the IJ reviewed the documents Weng submitted but found they did not independently establish her case or overcome his doubts about her credibility. The IJ did not make a credibility finding until after he marked all her documents, heard her testimony, and retired to evaluate the evidence. He discussed two of those documents—the country reports—in his decision. We can also infer that the IJ rejected these documents, which did not add new facts but merely supported Weng’s testimony, for the same reasons he chose not to" }, { "docid": "20400948", "title": "", "text": "she lied on several points and found her explanation unpersuasive. We cannot say the record compels a contrary conclusion. Weng makes a final, incorrect argument. She accuses the BIA of a procedural error: conflating the REAL ID Act’s requirement that discrepant testimony go to the heart of the claim with the requirement that the IJ’s findings not rest on conjecture and speculation. The BIA did no such thing. It rejected Weng’s argument that the IJ relied on conjecture and speculation by pointing to facts in the record supporting the IJ’s determination. It also noted the inconsistencies the IJ relied on went to the heart of Weng’s claim. III. The petition for review is denied. . Weng testified that, when she was four years old, her parents sent Weng and her sister to live with relatives so her parents could try to have a son. She said that the Chinese government forced her mother to undergo a tubal ligation after Weng’s mother gave birth to a son. . Weng did not explain the apparent inconsistency between the date on this receipt and her testimony that her family bailed her out of jail on Sunday, November 16. . Although the IJ and BIA did not rely on this point, we note that applicants for asylum must show, not just that they suffered past persecution on a protected ground, but that they are unable or unwilling to return to their home country for that reason. See 8 C.F.R. § 208.13(b)(1) (defining a past-persecution “refugee” as someone who has \"suffered persecution in the past ... on account of race, religion, nationality, membership in a particular social group, or political opinion, and is unable or unwilling to return to ... that country owing to such persecution”) (emphasis added). . Weng argues that the BIA engaged in impermissible factfinding by noting that Weng, despite claiming she was afraid to criticize the Chinese government, said she opposed its family planning policies during her credible-fear interview. The BIA was not finding new facts; it was pointing to further support for the IJ's finding that Weng was not credible" } ]

[ { "docid": "2595795", "title": "", "text": "Beacon Theaters view was strengthened and reiterated in Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962). Jury trial was said to be required for any legal issue, notwithstanding the trial judge’s characterization thereof as “incidental to equitable issues.” 369 U.S. at 470, 82 S.Ct. 894, 8 L.Ed.2d 144. The court in Dairy Queen held that a defendant was entitled to a trial by jury on issues involved in a claim for a money judgment even though the wording in the complaint was historically equitable in nature. Thus, under the above clear and express language of the most recent discussion of the United States Supreme Court on this issue, this court will grant jury trial on the legal issues raised in the amended complaint, if any, for there has been no showing of “imperative circumstances” requiring a predetermination of any equitable issue. Although this suit is characterized as a suit in equity by plaintiffs, and is a civil rights suit, the operation of the Seventh Amendment cannot be suspended in the absence of “imperative circumstances” supra. In this regard, a civil rights suit is to be treated no differently than any other civil action. A careful analysis will be made, in view of this background, to determine which of the issues of the amended complaint, if any, are properly triable by jury. In the amended complaint plaintiffs allege they were denied due process of law under the Fourteenth Amendment of the United States Constitution by virtue of the procedures used by defendants in not rehiring them. The remedies sought are the same as were sought in their original complaint, i. e. (1) a preliminary and permanent injunction; (2) a monetary award of back pay and other allowances; (3) costs and attorneys fees against defendants. Defendants deny that plaintiffs’ race had anything to do with the plaintiffs not being rehired. Those portions of the plaintiffs’ prayer which concern costs and attorney fees may be disposed of summarily for they are never within the province of the jury. Swofford v. B & W Inc., supra; Rule" } ]

[ { "docid": "18582486", "title": "", "text": "See, e.g., In re Portage Associates, Inc., 16 B.R. 445 (Bankr.N.D.Ohio 1982). Other courts dispense with this distinction, reasoning that it is outdated because the Code abolished these concepts as a basis for jurisdiction. See, e.g., In re Fleming, 8 B.r. 746, 748 (N.D.Ga.1980). I agree with the view that entitlement to a jury trial hinges on the nature of the cause of action rather than distinctions under the former Act. E.g., In re Minton Group, Inc., 43 B.R. 705, 12 B.C.D. 479 (Bankr.S.D.N.Y. 1984); In re Mozer, 10 B.R. 1002 (Bankr.D. Colo. 1981); In re PATCO, Inc., 23 B.R. 271 (D.D.C.1982). The seventh amendment of the United States Constitution preserves the right to a jury trial “[in] suits at common law.” The Supreme Court in discussing the right to a jury trial has distinguished between legal claims, those seeking a judgment for money damages, and claims which seek the exercise of a court’s equitable jurisdiction. See, e.g., Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). “Hence the primary determination which must be made ... is whether the cause of action stands in law or equity”. In re Fleming, 8 B.R. 746, 748 (N.D.Ga.1980). The right to a jury trial “depends on the nature of the issue to be tried rather than the character of the overall action.” Ross v. Bernhard, 396 U.S. 531, 538, 90 S.Ct. 733, 738, 24 L.Ed.2d 729 (1970). Even though a complaint seeks monetary relief, it may nonetheless not necessarily be legal in nature. See Curtis v. Loether, 415 U.S. 189, 196, 94 S.Ct. 1005, 1009, 39 L.Ed.2d 260 (1974). “... Monetary relief may flow from an equitable claim without acquiring a legal character.” Towers v. Titus, 5 B.R. 786, 794-95 (N.D. Cal.1979). Where monetary relief must necessarily be a part of the equitable remedy, the case remains equitable in nature. See Whitlock v. Hause, 694 F.2d 861 (1st Cir.1982). For example, where a plaintiff seeks to recover monies alleged to be wrongfully" }, { "docid": "8437504", "title": "", "text": "v. Olin Corp., 666 F.2d 202 (5th Cir.1982); Del Casal v. Eastern Airlines, Inc., 634 F.2d 295 (5th Cir.1981), cert, denied, 454 U.S. 892, 102 S.Ct. 386, 70 L.Ed.2d 206 (1981). Accordingly, the Cox analysis establishing the right to a jury trial in NLRA cases applies with equal force to RLA duty of fair representation cases. B. The Wrongful Discharge Action We need not decide whether a wrongful discharge action under the Railway Labor Act is one in which a plaintiff is entitled to a jury trial under the criteria of Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). The Supreme Court mandated in Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), that where both legal and equitable issues are presented in a single case, “only under the most imperative circumstances can the right to a jury trial be lost through prior determination of equitable claims.” Id. at 957. The factual issues common to the legal and the equitable claims must be submitted to a jury for decision on the legal claims before final court determination of the equitable claims. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 900-01, 8 L.Ed.2d 44 (1962). Assuming that an action for reinstatement and back pay is equitable in nature, Harkless v. Sweeny School District, 427 F.2d 319 (5th Cir.1970), cert, denied 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439, and that this action has not automatically been converted into a legal one by adding unsupported allegations of compensatory and punitive damages, Lynch v. Pan American World Airways, Inc., 475 F.2d 764 (5th Cir. 1973), what we have in this case is a legal claim — the fair representation claim— joined with an equitable claim — the wrongful discharge claim. Since a union may refuse to prosecute a nonmeritorious grievance, Vaca v. Sipes, Del Casal v. Eastern Airlines, the issue of whether the plaintiff was in fact wrongfully discharged is common to both the wrongful discharge action and the fair representation action. Following Beacon Theatres and Dairy Queen," }, { "docid": "18801785", "title": "", "text": "right of trial by jury shall be preserved.” U.S. Const, amend. VII. The Supreme Court interprets “suits at common law” to mean cases involving legal rights; no jury right attaches to equitable claims. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 41, 109 S.Ct. 2782, 2790, 106 L.Ed.2d 26 (1989). In determining whether a claim is equitable or legal, [f]irst, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity. Second, we examine the remedy sought and determine whether it is legal or equitable in nature. The second stage of this analysis is more important than the first. If, on balance, these two factors indicate that a party is entitled to a jury trial under the Seventh Amendment, we must decide whether Congress may assign and has assigned resolution of the relevant claim to a non-Article III adjudicative body that does not use a jury as factfinder. Id. at 42, 109 S.Ct. at 2790 (citations omitted). An action for money damages based on a breach of contract is traditionally a legal claim. See Dairy Queen, Inc. v. Wood, 369 U.S. 469, 477, 82 S.Ct. 894, 899, 8 L.Ed.2d 44 (1962). Actions sounding in tort “for damages to a person or property” are also generally considered to be actions at law. See Ross v. Bernhard, 396 U.S. 531, 533, 90 S.Ct. 733, 735, 24 L.Ed.2d 729 (1970). One bankruptcy court decision has directly addressed the issue of whether a claim for legal malpractice of bankruptcy counsel satisfies the first two prongs of the Granfinanci-era test. The court stated: [generally, negligence which gives rise to legal malpractice is based upon the attorney’s breach of his duty of care. The essence of such an action is in tort. In re SPI Communications & Mktg., Inc., 112 B.R. 507, 512 (Bankr.N.D.N.Y.1990). The bankruptcy court determined that the malpractice claim sounded in law rather than equity and that money damages for malpractice constituted a legal remedy. See id. Without discussing the third prong of Gran-financiera or the possible limitations of Granfinanciera" }, { "docid": "23310477", "title": "", "text": "law, they argue, the court was not required to submit the case to the jury because admiralty cases are traditionally tried to the bench. Federal courts are authorized, in one civil action, to exercise several types of subject matter jurisdiction historically exercised by separate courts, including courts of law, equity, and admiralty. As a result, a single federal court has at least three separate departments — law, equity, and admiralty — each of which has its own traditional procedures. While the Seventh Amendment guarantees a jury trial in eases “at common law,” no constitutional provision guarantees, or indeed prohibits, jury trials for cases tried in equity or in admiralty. Traditionally, however, admiralty courts and courts of equity did not rely on juries. See generally Fitzgerald v. United States Lines Co., 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963). When a civil action involves claims that historically would have been tried in different courts and a jury trial is demanded, the procedure for submitting part of the case to a jury can be complicated. See, e.g., Ross v. Bernhard, 396 U.S. 631, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970) (“[hjowever difficult it may have been to define with precision the line between actions at law dealing with legal rights and suits in equity dealing with equitable matters,” the Seventh Amendment right to jury trial on legal claims must be preserved, even when complaint combines claims in equity with claims at law); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962) (holding that legal claims based on breach of contract must be determined by jury before final court determinations of equitable claims based on trademark infringement). While trials to different fact-finders may be required in actions having law and equity components because of the jury’s inability to fashion equitable remedies, that result is not compelled when claims at law and in admiralty, arising out of a single accident, are combined in a single complaint for damages. To render the trial process in that particular circumstance less cumbersome, confusing, and time-consuming, the Supreme Court has" }, { "docid": "19270537", "title": "", "text": "court analyzed the characterization of ERISA actions as “equitable,” rather than “legal.” It accepted the Wardle court’s characterization of ERISA claims for breach of fiduciary duty as equitable in nature, thus finding jury trial inappropriate for § 409 claims brought under § 502(a)(2). Bower, at 597. However, the court distinguished from claims for breach of fiduciary duty claims arising under § 502(a)(1)(B): Plaintiffs style their claim for damages as a breach of contract action arising under § 301 of the LMRA or presumably under § 502(a)(1)(B) ... of ERISA. They assert that breach of contract claims are traditionally legal and thus the Seventh Amendment guarantees them the right to a jury trial of this issue. I agree. Section 301 of the LMRA provides that an employee may bring an action for damages against an employer for breach of a collective bargaining agreement. Rehmar v. Smith, 555 F.2d 1362 (9th Cir.1976). Similarly, § 502(a)(1)(B) of ERISA provides that a beneficiary may bring an action for redress of violations of the terms of the plan. A suit for breach of contract seeking damages was traditionally an action at law and thus triable to a jury under the Seventh Amendment. Dairy Queen, Inc. v. Wood, 369 U.S. 469 [82 S.Ct. 894, 8 L.Ed.2d 44] (1962). Thus, the plaintiffs have a right to a jury determination of not only whether the contract has been breached and the extent of damages if any, but also just what the contract is. Id. at 479 [82 S.Ct. at 900]. At 597-98. The court also distinguished the factual situation presented in Wardle (and Diano) — actions to enforce payment of pension benefits — from the issue of whether a contract provides for vested benefits. Citing International Union, United Automobile, Aerospace & Agricultural Implement Workers v. YardMan, Inc., 716 F.2d 1476 (6th Cir.1983), cert, denied, 464 U.S. 1007, 104 S.Ct. 1002, 79 L.Ed.2d 234 (1984), the court stated that the latter type of dispute had been resolved by the application of traditional contract principles. At 598. This Court finds the reasoning of Bower to be sound. Accordingly, the breach" }, { "docid": "1151138", "title": "", "text": "right to a jury trial would still exist in some cases. See, e.g. In re Frank Meador Buick, Inc., 8 B.R. 450 (Bankr.W.D.Va.1981). In interpreting Section 1480, courts developed a two-part test to determine if a jury right existed. In re Mozer, 10 B.R. 1002 (Bankr.D.Colo.1981). The first part was to decide if the matter would have been classified as a summary or plenary proceedings under the former Act. Summary proceedings, as previously stated, were not entitled to a trial by jury. Several courts have modified the summary/plenary distinction of Katchen by relying on the nature of the cause of action as a basis for entitlement to a jury trial, and therefore, analyze whether the action lies in equity or is brought at law. Zimmerman v. Cavanaugh, (Matter of Kenval Marketing Corp.), 65 B.R. 548 (E.D.Pa.1986); In re O.P.M. Leasing Services, Inc., 48 B.R. 824 (S.D.N.Y.1985). If the matter would have been a plenary proceeding, the second part of the test required that the right to a jury be determined by deciding whether any court in which the plenary proceeding could have been brought would have recognized a right to a jury. In re Mozer, supra; In re Portage Associates, Inc., 16 B.R. 445 (Bankr.N.D.Ohio 1982). The courts would then consider whether the right to a jury was allowed by the Seventh Amendment to the U.S. Constitution or a statute. See Sibley v. Fulton DeKalb Collection Service, 677 F.2d 830 (11th Cir.1982). The Seventh Amendment preserves the right to a jury trial in suits at common law. The Supreme Court has distinguished between legal claims, such as judgment for money damages, and claims which seek the exercise of a court’s equitable jurisdiction. See, e.g., Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962). If the issue would have been tried in a court of equity, there is no right to a jury. However, a right to a jury trial would exist if the issue would have been tried in a court of law. In order to determine whether the proceeding is brought at law" }, { "docid": "7649212", "title": "", "text": "plaintiff appeals. I The plaintiff contends that the district judge erred in taking the case over from the jury and deciding it himself. We agree. The Seventh Amendment guarantees that a trial by jury be had in all federal cases presenting “legal” claims over $20.00. Before 1938, this presented little problem since cases at law were separate from cases in equity. In 1938, everything changed; law and equity were merged. The merger of law and equity is universally acknowledged to be a good thing, but it has created problems in the jury trial area since one is entitled to a jury trial on legal claims, but not equitable ones. Some clarity was brought to this area by Dairy Queen v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962), and Beacon Theatres Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), which command that where a case presents both legal and equitable issues, jury trial rights must be preserved. The question remains, what is a “legal” issue? Guidance is provided by Ross v. Bernhard, 396 U.S. 531, 538 n. 10, 90 S.Ct. 733, 738 fn. 10, 24 L.Ed.2d 729 (1970), where the Court stated: As our cases indicate, the “legal” nature of an issue is determined by considering, first, the pre-merger custom with reference to such questions; second, the remedy sought; and third, the practical abilities and limitations of juries. The first part of the test created confusion. Some courts took the view that no jury trial right attached to purely statutory causes of action which had no direct common-law counterpart. See McCraw v. United Ass’n of Journeymen, 341 F.2d 705, 709 (6th Cir. 1965); Lawton v. Nightingale, 345 F.Supp. 683 (N.D.Ohio 1972); Buss v. Douglas, 59 F.R.D. 334 (D.Neb.1973). Whatever merit there might have been to this expansive notion, it was quickly deflated by Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974). There, the Court ruled that a jury trial was available in a housing discrimination suit under Title VIII of the Civil Rights Act where the plaintiff" }, { "docid": "14334072", "title": "", "text": "MEMORANDUM AND ORDER DON J. YOUNG, District Judge: This is a civil rights action, brought under the provisions of Title 42 U.S.C. § 1983. In its present posture, the only issue remaining to be considered is the right of the plaintiff to recover damages. The defendants timely filed a demand for jury trial of this issue. This Court, sua sponte, issued an order to the defendants to show cause why their demand for a jury trial should not be stricken. The defendants have responded to this order by claiming that under the Seventh Amendment to the Constitution all actions for damages, even those incidental to actions primarily for equitable relief, are triable to a jury. As authority for this position they cite Beacon Theatres v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), and Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962), together with several decisions of the Circuit Courts of Appeals, including Bereslavsky v. Kloeb, 162 F.2d 862 (6th Cir.1947). It might perhaps be useful at this point to refer to the language of the Constitution itself, rather than the gloss put upon it by the courts. The Seventh Amendment is brief, simple, and explicit. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law. It cannot be pretended that the present action is a “Suit at common law.” Quite the contrary, the action is brought under a statute, and the enactment of the statute itself was under the provisions of the Fourteenth Amendment to the Constitution. Hence the authorities cited by the defendants, dealing as they do with totally different factual and legal situations are without authority in the present case. The law is well established that the various special statutory actions which have been created from time to time since the adoption of the Seventh Amendment do" }, { "docid": "18883306", "title": "", "text": "opposes removal of a portion of that proceeding from the bankruptcy court cannot be entitled to a jury trial. The Court also agrees that the United States Constitution provides no right for a jury trial in this case. The essence of a Seventh Amendment inquiry is whether the underlying issue is legal or equitable in nature. It is clearly established that the right to trial by jury exists only with respect to issues at common law and does not exist with respect to issues tried by a court in its equity jurisdiction. Ross v. Bernhard, 396 U.S. 531, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). Proceedings of bankruptcy courts, as noted above, are inherently equitable proceedings. In Granfinanciera, the Supreme Court applied a two step test to determine whether an action seeking damages was a suit at common law for which a jury trial was required. First, the court must determine whether proceedings of that type were traditionally tied to a jury prior to the merger of law and equity. Second, the court must determine whether the nature of the remedy sought was legal or equitable. While the Appellant argues that the procedure here was a court action seeking damages and therefore was traditionally triable to a jury, the Court disagrees. This proceeding was an action to determine whether NIS and Ozark had a valid claim against the bankrupt and, if so, the amount and dischargeability of that claim. Such proceedings are solely creatures of the Bankruptcy Code and had no existence at common law. Thus, the first prong of the Granfinanciera test has not been met. Furthermore, it is clear that the discharge-ability or non-dischargeability of a particular claim is a decision made by the bankruptcy court under the equitable powers granted it by Congress. See, Katchen (proceedings of bankruptcy courts are inherently equitable); Thorp Credit, Inc. v. Lee, 50 B.R. 683 (Bankr.D.Md.1985); Billebault v. Schmid, 54 B.R. 520" }, { "docid": "17123607", "title": "", "text": "parties would be entitled to a jury under the Seventh Amendment. The fact that the right to recover wages is granted not by common law but by statute does not change the essential nature of the case. Rogers v. Exxon Research and Engineering Co., supra, at 838. The defendant’s position would seem to be that once equitable relief is sought in an ADEA case, the “essential nature of the case” does change and the entire action must be tried to the Court. The defendant appears to exclude exactly what the Supreme Court in Ross v. Bernhard contemplated: to preserve a party’s right to a jury trial a Court may have to separate legal and equitable issues. 396 U.S. 531, 537-38; 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). The Ross holding reaffirmed earlier Supreme Court decisions that require, as a general rule, legal issues to be tried prior to equitable issues where both are presented in the same case. See Dairy Queen v. Wood, 369 U.S. 469, 472-73, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). Indeed the Court in Dairy Queen expressly dealt with a contention very similar to the one urged here: “[The holding in Beacon Theatres], of course, applies whether the trial judge chooses to characterize the legal issues presented as ‘incidental’ to equitable issues or not.” (footnote omitted) Dairy Queen v. Wood, supra 369 U.S. at 473, 82 S.Ct. at 897. See also Thermo-Stitch, Inc. v. Chemi-Cord Processing Corp., 294 F.2d 486, 491 (5th Cir. 1961). The defendant contends that ADEA cases are closely analogous to cases decided under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g). Various courts of appeals have held that a party is not entitled to a jury trial in an action seeking back pay and reinstatement under 42 U.S.C. § 2000e-5(g). See Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971), cert. denied, 404 U.S. 1006, 92 S.Ct. 573, 30 L.Ed.2d 655 (1972); Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122" }, { "docid": "6963556", "title": "", "text": "S. Code Congressional & Administrative News, 1961, at pp. 1658-1659 and 1713-1714. The Court concludes, therefore, that the statute itself confers no right of trial by jury in this case. There remains for consideration the question of whether defendants’ demand for trial by jury is supported by the Constitution. The Seventh Amendment provides that in suits at common law where the value in controversy shall exceed twenty dollars the right of trial by jury shall be preserved. Rule 38(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides that the right of trial by jury as declared by the Seventh Amendment shall be preserved to the parties inviolate. By virtue of Rule 2 there is now in the federal courts only one form of action, known as a civil action, and Rule 18(a) permits the joinder in one action of both legal and equitable claims. In Dairy Queen, Inc. v. Wood, Judge, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44, and Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988, the Supreme Court has made it clear that where a legal claim, right to jury trial of which is preserved by the Constitution, is joined with an equitable claim, with respect to which no right of jury trial exists, the right to trial by jury on the factual issues tendered by the legal claim must be preserved. And this is true even though the legal claim may be characterized as incidental or subordinate to the equitable claim, and even though the legal and equitable claims may have common factual issues. As pointed out by Professor Moore, a section -16 suit by employees directly seeking money judgments may properly be considered a suit at common law so that the litigants are entitled to jury trial under the Constitution, whereas a suit under section 17 cannot be so characterized. As the Court understands it, defendants’ argument is that since the Secretary’s prayer in the instant case has cut off defendants’ employees right to sue under section 16, the suit in part is actually an action" }, { "docid": "4564149", "title": "", "text": "of their constitutional and statutory rights to a jury trial. As described above, the Joint Plan provides two forms of claims processing: Expedited Review and Individual Review. If a claimant is dissatisfied -with the outcome of these two procedures, he can seek further review through mediation and nonbinding arbitration. If the claimant is still dissatisfied after exhausting these options, he can then elect to have his claims liquidated in the tort system by jury trial. However, if a claimant elects to proceed to jury trial, his potential recovery under the Joint Plan is limited to the lesser of the amount of the jury verdict or the Maximum Value established by the TDP. The Libby Claimants allege that this “lesser-of’ limitation on their recovery places an undue burden on the exercise of a constitutional right, as well as violating their statutory rights under 28 U.S.C. § 1411. The Court considers each argument separately below. 1. Rights Under the Seventh Amendment to the United States Constitution The Seventh Amendment to the United States Constitution guarantees the right to a jury trial in suits at common law. “The heart of the [Seventh Amendment] is to decide what constitutes the province of the jury as trier of the facts[.]” Pierre v. E. Air Lines, 152 F.Supp. 486, 488 (D.N.J.1957). In Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), the Supreme Court of the United States stated that suits at common law refer to “suits in which legal rights [are] to be ascertained and deter mined, in contradistinction to those where equitable rights alone [are] recognized[.]” Id. at 41, 109 S.Ct. 2782 (internal citations and quotations omitted). The notion of “legal rights” within the meaning of the Seventh Amendment encompasses actions seeking monetary damages. See Curtis v. Loether, 415 U.S. 189, 195-96, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974) (noting that damages are the “traditional form of relief offered in the courts of law”); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 476-77, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962) (stating that a complaint seeking monetary relief is “unquestionably" }, { "docid": "4564150", "title": "", "text": "to a jury trial in suits at common law. “The heart of the [Seventh Amendment] is to decide what constitutes the province of the jury as trier of the facts[.]” Pierre v. E. Air Lines, 152 F.Supp. 486, 488 (D.N.J.1957). In Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989), the Supreme Court of the United States stated that suits at common law refer to “suits in which legal rights [are] to be ascertained and deter mined, in contradistinction to those where equitable rights alone [are] recognized[.]” Id. at 41, 109 S.Ct. 2782 (internal citations and quotations omitted). The notion of “legal rights” within the meaning of the Seventh Amendment encompasses actions seeking monetary damages. See Curtis v. Loether, 415 U.S. 189, 195-96, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974) (noting that damages are the “traditional form of relief offered in the courts of law”); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 476-77, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962) (stating that a complaint seeking monetary relief is “unquestionably legal” in nature); In re G-I Holdings, 323 B.R. 583, 601-02 (Bankr.D.N.J.2005) (same). While this Court has not previously ruled on the issue, it hereby agrees with and adopts the view of sister courts within the Third Circuit that have concluded that the claims of “asbestos claimants are legal in nature, and thus, they carry with [them] the Seventh Amendment guarantee of a jury trial” for the purpose of “liquidating their respective claims[.]” G-I Holdings, 323 B.R. at 605, 607 (internal quotations omitted). Thus, while the Court acknowledges that Appellants have a constitutional right to a jury trial within this context, it finds that the Libby Claimants have not satisfactorily established that this constitutional right is infringed upon by the Joint Plan. The Libby Claimants do not object to the Joint Plan because its structure and procedure for the liquidation of personal injury claims does not allow them to pursue their constitutional right to a jury trial. In fact, they acknowledge that they ultimately can obtain a jury verdict if they are dissatisfied with their" }, { "docid": "18582485", "title": "", "text": "464 Adv. (D.Mass.1985) (without commenting on propriety of jury trial in bankruptcy court, such a procedure would be a waste of judicial time in view of required de novo review mandating a second jury trial) with In re Gibbons Construction, Inc., 46 B.R. 193, 12 B.C.D. 463 (E.D.Ky.1984) (1984 amendments removed obstacle jury trials in bankruptcy court under emergency rule). Nothing in the Bankruptcy Code expands or diminishes a litigant’s right to a jury trial under the seventh amendment to the United States Constitution, any guarantee under applicable State Constitution, or under any applicable statute. The Bankruptcy Court is the appropriate tribunal for determining whether there is a right to a trial by jury of issues for which a jury trial is demanded. Bankruptcy Rule 9016(b)(3) (1983). In deciding whether a litigant has the right to a jury trial in a bankruptcy proceeding some courts analyze whether the action in question would have been a summary proceeding (requiring no jury trial) or a plenary proceeding (requiring a jury trial) under the Bankruptcy Act of 1898. See, e.g., In re Portage Associates, Inc., 16 B.R. 445 (Bankr.N.D.Ohio 1982). Other courts dispense with this distinction, reasoning that it is outdated because the Code abolished these concepts as a basis for jurisdiction. See, e.g., In re Fleming, 8 B.r. 746, 748 (N.D.Ga.1980). I agree with the view that entitlement to a jury trial hinges on the nature of the cause of action rather than distinctions under the former Act. E.g., In re Minton Group, Inc., 43 B.R. 705, 12 B.C.D. 479 (Bankr.S.D.N.Y. 1984); In re Mozer, 10 B.R. 1002 (Bankr.D. Colo. 1981); In re PATCO, Inc., 23 B.R. 271 (D.D.C.1982). The seventh amendment of the United States Constitution preserves the right to a jury trial “[in] suits at common law.” The Supreme Court in discussing the right to a jury trial has distinguished between legal claims, those seeking a judgment for money damages, and claims which seek the exercise of a court’s equitable jurisdiction. See, e.g., Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres," }, { "docid": "12090641", "title": "", "text": "right is not forfeited by failure to pursue this extraordinary route. As Professors Wright and Miller state in 9 Federal Practice and Procedure § 2322, p. 105 (1971): Even though it is possible to get immediate review of a denial of jury trial by the devices just mentioned [mandamus or by treating the denial of jury trial as an appealable injunction], the party who wishes a jury is not required to proceed in this fashion and may have review of the denial of a jury on an appeal from the final judgment. Having concluded that defendants did not waive their right to a jury trial, we turn to the central question in the case: must a jury determine all common issues in a § 1983 action seeking both damages and injunctive relief? The long established rule in this area is set forth clearly in Dairy Queen v. Wood, 369 U.S. 469, 472-73, 82 S.Ct. 894, 897, 8 L.Ed.2d 44 (1962): The holding in Beacon Theatres [v. Westover, 359 U.S. 500, 510-511, 79 S.Ct. 948, 957, 3 L.Ed.2d 988] was that where both legal and equitable issues are presented in a single case, “only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims.” That holding, of course, applies whether the trial judge chooses to characterize the legal issues presented as “incidental” to equitable issues or not. Consequently, in a case such as this where there cannot even be a contention of such “imperative circumstances,” Beacon Theatres requires that any legal issues for which a trial by jury is timely and properly demanded be submitted to a jury, (citations omitted). The question then is whether a claim seeking damages under § 1983 is characterized properly as “legal” for purposes of the seventh amendment. A recent decision of this circuit, Santiago-Negron v. Castro-Davila, 865 F.2d 431 (1st Cir.1989) has we believe answered this question by implication. In that case, the issue of liability" }, { "docid": "17123606", "title": "", "text": "addressed first to the claim for back pay. A. Lost Wages Recently the Third Circuit has held that a jury trial is proper in the context of an ADEA suit seeking only money damages. See Rogers v. Exxon Research and Engineering Co., supra. Defendant asserts that Rogers is inapposite to the case at bar because Rechsteiner is seeking equitable relief in the form of reinstatement and the money damages requested are merely incidental to the equitable relief. I do not read the Rogers holding so narrowly. Count I of the amended complaint alleges a violation of the ADEA. As remedy for that wrongful act, the plaintiff seeks both money damages for, inter alia, lost wages and equitable relief in the form of reinstatement and the award of attorney’s fees. Thus, the plaintiff is alleging one claim and seeking both equitable and monetary relief to vindicate that claim. The Rogers court stated: A suit for damages consisting of back w<&ges arising out of a breach of an employment agreement is a routine contract action where the parties would be entitled to a jury under the Seventh Amendment. The fact that the right to recover wages is granted not by common law but by statute does not change the essential nature of the case. Rogers v. Exxon Research and Engineering Co., supra, at 838. The defendant’s position would seem to be that once equitable relief is sought in an ADEA case, the “essential nature of the case” does change and the entire action must be tried to the Court. The defendant appears to exclude exactly what the Supreme Court in Ross v. Bernhard contemplated: to preserve a party’s right to a jury trial a Court may have to separate legal and equitable issues. 396 U.S. 531, 537-38; 90 S.Ct. 733, 24 L.Ed.2d 729 (1970). The Ross holding reaffirmed earlier Supreme Court decisions that require, as a general rule, legal issues to be tried prior to equitable issues where both are presented in the same case. See Dairy Queen v. Wood, 369 U.S. 469, 472-73, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon" }, { "docid": "8437505", "title": "", "text": "to a jury for decision on the legal claims before final court determination of the equitable claims. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 900-01, 8 L.Ed.2d 44 (1962). Assuming that an action for reinstatement and back pay is equitable in nature, Harkless v. Sweeny School District, 427 F.2d 319 (5th Cir.1970), cert, denied 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439, and that this action has not automatically been converted into a legal one by adding unsupported allegations of compensatory and punitive damages, Lynch v. Pan American World Airways, Inc., 475 F.2d 764 (5th Cir. 1973), what we have in this case is a legal claim — the fair representation claim— joined with an equitable claim — the wrongful discharge claim. Since a union may refuse to prosecute a nonmeritorious grievance, Vaca v. Sipes, Del Casal v. Eastern Airlines, the issue of whether the plaintiff was in fact wrongfully discharged is common to both the wrongful discharge action and the fair representation action. Following Beacon Theatres and Dairy Queen, we hold that the trial court must submit to the jury the factual issues common to the wrongful discharge and the fair representation claims before the court makes a final determination on Roscello’s wrongful discharge action. See also Eli Lilly and Company v. Generix Drug Sales, Inc., 460 F.2d 1096, 1107 (5th Cir.1972). III. EFFECT OF THE DENIAL OF A JURY TRIAL Since we have decided that Roscello was entitled to a jury trial on the fair representation claim and on the facts common to the wrongful discharge and fair representation claims, we must decide the effect of the denial of that right. If all of the evidence, viewed most favorably to Roscello, would have withstood a motion for a directed verdict, the error of refusing a jury demand cannot have been a harmless one. See Cox, 607 F.2d at 144. Our standard for determining whether the evidence was sufficient to go to a jury is provided by Boeing v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc): the Court should consider all of" }, { "docid": "1172119", "title": "", "text": "78 S.Ct. 893, 2 L.Ed.2d 953 (1958)). This is especially true in non-diversity cases, where there are indications of federal law leaning toward uniformity and there is no significant state interest to be served by the absorption of the state law as the rule of decision. We find in Abner Wolf and Smith no indication of a compelling state policy which favors the practice of having judges who decide equitable claims ignore jury verdicts. The Supreme Court cases and their progeny, on the other hand, underscore the important federal policy favoring federal determination of the allocation of functions between jury and judge. See also Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959), and the line of cases resulting therefrom. We therefore find that the district court erred in not applying the federal law, set forth below, which holds that a judge deciding an equitable issue is bound by the jury’s factual findings on an adjoining legal claim. While an action for reinstatement and backpay under Title VII is by nature equitable and entails no rights under the seventh amendment, an action for damages under the Elliott-Larsen Act is by nature legal and must be tried by a jury on demand. And “[w]hen legal and equitable actions are tried together, the right to a jury trial in the legal action encompasses the issues common to both.” Lincoln v. Board of Regents of University System, 697 F.2d 928, 934 (11th Cir.), reh’g denied, 705 F.2d 471, cert. denied, 464 U.S. 826, 104 S.Ct. 97, 78 L.Ed.2d 102 (1983) (citing Curtis v. Loether, 415 U.S. 189, 196 n. 11, 94 S.Ct. 1005, 1009 n. 11, 39 L.Ed.2d 260 (1974); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 470-73, 82 S.Ct. 894, 896-97, 8 L.Ed.2d 44 (1962)). Thus, “when a party has a right to a jury trial on an issue involved in a legal claim, the judge is of course bound by the jury’s determination of that issue as it affects" }, { "docid": "4054830", "title": "", "text": "is entitled to have all legal claims tried to the jury. See Curtis v. Loether, 415 U.S. 189, 193-94, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974) (the right of trial by jury provided in the Seventh Amendment extends beyond the common-law forms of action recognized at the time of the amendment’s adoption and the amendment may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever might be the peculiar form which they may assume to settle legal rights; thus, the Seventh Amendment right to a jury trial applies to actions enforcing statutory rights and requires a jury on demand if a statute creates legal rights and remedies enforceable in an action for damages in ordinary courts of law); Beacon -Theatres, Inc. v. Westover, 359 U.S. 500, 510, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959) (“In the Federal courts this ... jury ... right [created by the Seventh Amendment] cannot be dispensed with, except by the assent of the parties entitled to it; nor can it be impaired by any blending with a claim, properly cognizable at law, of a demand for equitable relief in aid of the legal action, or during its pendency.”). Also, once the right to a jury trial attaches to a claim, it extends to all factual issues necessary to the resolution of that claim. See Ross v. Bernhard, 396 U.S. 531, 537-38, 90 S.Ct. 733, 24 L.Ed.2d 729 (1970); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 479, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962); Hussein v. Oshkosh Motor Truck Co., 816 F.2d 348, 354 (7th. Cir. 1987); Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1421 (7th Cir.1986). See also Allison v. Citgo Petroleum Corp., 151 F.3d 402, 423 (5th Cir.1998) (citing Beacon Theatres, 359 U.S. at 510-11, 79 S.Ct. 948). Were the Court to attempt artificially to sever the question of reliance on GMC’s alleged affirmations and promises relating to Dex-Cool from the question of whether the statements in GMC’s owner’s manuals constitute an enforceable written warranty, there is little doubt that this would violate GMC’s Seventh Amendment" }, { "docid": "16102085", "title": "", "text": "Because the Seventh Amendment preserves the right to jury trial in federal eourt “[i]n Suits at common law,” federal law focuses upon whether a claim is legal or equitable in nature. Damages are, of course, the “traditional form of relief offered in the courts of law.” Curtis v. Loether, 415 U.S. 189, 196, 94. S.Ct. 1005, 1009, 39 L.Ed.2d 260 (1974). Thus, when a federal plaintiff seeks damages, either party may demand a jury trial, even if those damages are merely “incidental” to equitable relief. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 470, 82 S.Ct. 894, 896, 8 L.Ed.2d 44 (1962). The Seventh Amendment right to jury trial extends to statutory causes of action, so long as the statute allows, and the plaintiff seeks, at least in part a legal remedy. Curtis, 415 U.S. at 194, 94 S.Ct. at 1008. The MHRA authorizes the recovery of “actual and punitive damages,” in addition to equitable remedies such as backpay. Mo.Rev. Stat. § 213.111(2). Therefore, we agree with the Eastern District of Missouri decisions holding that a plaintiff seeking damages under the MHRA is entitled to a jury trial in federal court. See Sullivan v. Curators of the Univ. of Mo., 808 F.Supp. 1420, 1424 (E.D.Mo.1992); Stewart v. Yellow Freight Sys., Inc., 702 F.Supp. 230, 231 (E.D.Mo.1988). When the district court has erroneously dismissed a claim to which the right to jury trial applies and has also tried another claim raising the same or related issues to the court, the plaintiffs Seventh Amendment right requires that the court’s factual findings from the bench trial not collaterally estop plaintiff in pursuing his legal claims. See Lytle v. Household Mfg., Inc., 494 U.S. 545, 552-53, 110 S.Ct. 1331, 1336-37, 108 L.Ed.2d 504 (1990); see also Wiehoff v. GTE Directories Corp., 61 F.3d 588, 595-96 (8th Cir.1995). Gipson argues that we must therefore vacate the district court’s judgment for KAS on his Title VII claims, as the Court did in Lytle, 494 U.S. at 555-56 & n. 4, 110 S.Ct. at 1338-39 & n. 4. However, Lytle involved related federal claims for legal and" } ]

[ { "docid": "15615200", "title": "", "text": "contest the availability of those funds for this purpose, and we do not read the reorganization plan to preclude such use. See Plan, § 4.05.07(a)(i) (“[T]he bankruptcy court upon proper motion may authorize the use of such funds for other purposes in connection with efforts to liquidate Personal Injury Claims ....”); see also id. § 4.05.07(v). Given the availability of other payment mechanisms, the deductible issue and the allocation issue are of sufficient immediacy and reality to warrant declaratory judgment. We therefore reach and decide each of the questions presented to us. I. THE PAY FIRST PROVISION We agree with Judge Haight’s conclusion that the recycling arrangement did not amount to payment under American Club’s policy and thus failed to satisfy the policy’s pay first provision. The American Club policies require it to “indemnify [Prudential] against any loss, damage or expense which [Prudential] shall become liable to pay and shall pay.” Because the American Club policy mandates payment prior to triggering the insurer’s indemnification obligations, it is an indemnity policy. Federal maritime law, which applies to this essentially maritime contract, does not speak to the issue of what constitutes payment under an indemnity policy. See Liman v. American Steamship Owners Mut. Protection and Indem. Ass’n, 299 F.Supp. 106, 108 (S.D.N.Y.1969), aff'd, 417 F.2d 627 (2d Cir.1969) (per curiam). Because we see no need for a uniform federal rule (and because the parties have agreed that New York law governs), we apply New York law. See Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 316-17, 75 S.Ct. 368, 372, 99 L.Ed. 337 (1955). A. Liman v. American Steamship Oumers The recycling arrangement is patterned after a similar device approved by this court in Liman, which involved an identical American Club policy. In Liman, approximately 120 claims were presented by seamen and longshoremen against a bankrupt shipping company. Although the shipping company had sufficient funds to pay the claims, and although there was no reason to doubt that the company would be indemnified eventually by the insurer (net of the deductible), the Government (the bankrupt’s chief creditor) opposed payment" } ]

[ { "docid": "15423046", "title": "", "text": "all of the claims first and seek indemnification later. See Dicola v. American 5.5. Owners Mut. Protection & Indem. Ass’n (In re Prudential Lines Inc.), 158 F.3d 65, 75 (2d Cir.1998). Payment arrangements that may be possible when the insured is solvent, may not be available when the insured is insolvent. See id. at 73-76. Bankrupt debtors are limited in their ability to obtain new loans which otherwise could be used to create funds to satisfy the pay-first requirement, see id. at 75, and promissory notes issued by an insolvent insured to a claimant are not considered payment that triggers an obligation to indemnify, see id. at 74. The insolvent insured is therefore often forced to satisfy the pay-first requirement by means of complex, creative payment schemes. See, e.g., Liman v. American 5.5. Owners Mut. Protection & Indem. Ass’n, 299 F.Supp. 106, 108 (S.D.N.Y.), aff'd, 417 F.2d 627 (2d Cir.1969) (per curiam ) (utilizing a payoui/loan-back revolving cash procedure). In addition to the difficulties involved in paying the claims, the Trust faces a significant risk that the payment scheme ultimately employed will be deemed not to satisfy the pay-first requirement. See In re Prudential Lines Inc., 158 F.3d at 73 (limiting the permissibility of Liman type arrangements). If the Trust were initially to pay the claimants with assets earmarked for other creditors only to be informed afterwards that the payments did not trigger the Clubs’ indemnification obligation, the result would be an inequitable distribution among the creditors. Therefore, in order to effectuate an equitable distribution of the bankruptcy estate, a comprehensive declaratory judgment is required to determine (1) whether a chosen payment plan will trigger the indemnification obligation and (2) the amounts payable under the insurance contracts. Thus, the declaratory proceedings brought by the Trust in this case directly affect the bankruptcy court’s core administrative function of asset allocation among creditors, and for that reason they are core. The district court ruled that it did not have pendent appellate jurisdiction to determine whether additional claims for punitive damages and attorneys’ fees were core. The district court’s decision not to exercise" }, { "docid": "15423033", "title": "", "text": "district court, see United States Lines, Inc. v. American S.S. Owners Mut. Protection & Indem. Ass’n, 220 B.R. 5, 7-8 (S.D.N.Y.1997) (“U.S. Lines II”). We assume familiarity with both, and will only summarize the pertinent facts here. On November 24,1986, United States Lines, Inc. and United States Lines (S.A.) Inc., as debtors, filed a voluntary petition for bankruptcy relief under Chapter 11 of the Bankruptcy Code, 11 U.S.C. §§ 101 et seq. The Trust is their successor-in-interest pursuant to a plan of reorganization that was confirmed by the bankruptcy court on May 16, 1989. Among the creditors are some 12,000 employees who have filed more than 18,000 claims, most of which are for asbestos-related injuries sustained while sailing on different ships in debtors’ fleet over four decades. Many additional claims are expected to mature in the future. The Trust asserts that these claims are covered by several Protection & Indemnity insurance policies (the “P & I policies”) issued by four domestic and four foreign mutual insurance clubs (“the Clubs”). Generally, a single club insured the debtors’ entire fleet for a particular year, but there were exceptions when certain ships where insured independently of fleet coverage by another club or under a different policy. All of the P & I policies were issued before the debtors petitioned for bankruptcy relief. The proceeds of the P & I policies are the only funds potentially available to cover the above employees’ personal injury claims. At the heart of each of the P & I policies is a pay-first provision by which the insurers’ liability is not triggered until the insured pays the claim of the personal injury victim. The deductibles for each accident or occurrence vary among the different policies, ranging from $250 to $100,000. On December 8, 1992, the Bankruptcy Court entered a stipulation of conditional settlement between the Trust and an initial group of 106 claimants, and on January 5, 1993, the Trust began this action as an adversarial proceeding in bankruptcy, pursuant to 28 U.S.C. § 2201, seeking a declaratory judgment of the parties’ respective rights under the various P" }, { "docid": "6384876", "title": "", "text": "involves the priority rights of creditors who have filed claims against the estate. Id. at 32. And the third major Second Circuit case, United States Lines, Inc. v. American Steamship Owners Mutual Protection and Indemnity Ass’n, (In re United States Lines, Inc.), 197 F.3d 631 (2d Cir.1999) (“U.S.Lines ”), once more found the issues before it to be core. There the reorganized debtor, United States Lines, and its Reorganization Trust, brought an adversary proceeding seeking a declaratory judgment to establish the Trust’s rights under various insurance contracts, all of which had been entered into pre-petition. Although the bankruptcy court had held that the action was core, the district court had found to the contrary, and reversed. But the district court had certified its order under 28 U.S.C. § 1292(b), and upon review of the question, the Second Circuit reversed the district court, and once more held the proceeding to be core. The contracts were Protection & Indemnity insurance policies (“P & I policies”) which covered asbestos injuries sustained by employees of United States Lines, who had filed more than 18,000 claims. The proceeds of the P & I policies were the only funds potentially available to cover the employees’ personal injury claims. At the heart of each of those policies was a “pay-first” provision under which the insurers’ liability was not triggered until the insured paid the claim of the personal injury victim. It was important for the estate’s ability to reorganize to determine whether creative means to satisfy the “pay-first” obligation without expending large sums that the estate did not have would meet the requirements of the policies. Though the individual members of the panel, Circuit Judges Walker, Newman and Calabresi, did not then determine whether a suit alleging a post-petition breach of a contract was or was not necessarily a core proceeding, they neverthe less joined in an analysis relevant here, and, at least impliedly, in the view that the matter then before the Second Circuit should not be deemed to be a Marathon-type lawsuit. In U.S. Lines, the debtor was seeking a declaratory judgment with respect to" }, { "docid": "12808908", "title": "", "text": "distinction between an indemnity contract and a liability contract was addressed: The contract between Bonanza and Republic is written as an indemnity contract, not as a liability contract. In a liability contract, the insurer agrees to cover liability for damages. If the insured is liable, the insurance company must pay the damages. In an indemnity contract, by contrast, the insurer agrees to reimburse expenses to the insured that the insured is liable to pay and has paid. An indemnity covers only the insured’s actual expenses. 677 F.2d at 459. We find nothing in the subsequent proceedings in this case that disturbs this reading of insurance contract law. The above-cited language is a correct statement of the law controlling the agreement contested here. The issue is thus distilled to the question of whether Bonanza’s execution of the promissory note was an actual expense. The question is not to be resolved, as is claimed by appellee, under Liman v. American Steamship Owners Mutual Protection & Indemnity Association, 299 F.Supp. 106 (S.D.N.Y.), aff'd, 417 F.2d 627 (2nd Cir.1969), cert. denied, 397 U.S. 936, 90 S.Ct. 946, 25 L.Ed.2d 116 (1970), which holds that an insolvent assured can finance payment by means other than an actual cash transfer. Liman does not stand for the proposition that “payment” can be made by the use of a promissory note worthless from the day it is executed. By contrast, the Liman court declared that the test “is whether the assured has actually in good faith sustained the loss for which reimbursement is sought.” 299 F.Supp. at 109. Since the bankrupt assured in Liman was not completely bereft of assets, the Liman court was not faced with the situation we face in this case, where Bonanza is literally incapable of sustaining a loss. At the time the note was executed, Bonanza was not merely insolvent. It had no assets whatsoever. Moreover, Bonanza’s presi dent testified that the company was not likely to obtain any assets in the future, or to receive any infusions of capital. Bonanza not only had no intention of paying the promissory note, but offered" }, { "docid": "18600724", "title": "", "text": "obligation contained in the policies. The provision reads in relevant part as follows: [t]he PLI Disbursement Trustee is authorized to enter into arrangements under which in substance the PLI Disbursement Trust pays the Allowed Insured Claim in full in cash; the holder of the Allowed Insured Claim repays in cash the full amount of the Deductible Claim and the Club or other insurer reimburses the PLI Disbursement Trust in cash for the full amount of the Excess Claim (and any previously unreimbursed defense costs in excess of the applicable deductible incurred in connection with liquidation of the Claim); and the holder of the Allowed Insured Claim is given an Allowed Claim in Class 5C in the amount of the Deductible Claim. R1 at 133. This provision is patterned after the method approved in Liman v. American Steamship Owners Mutual Protection and Indemnity Associations, 299 F.Supp. 106 (S.D.N.Y.), aff'd 417 F.2d 627 (2d Cir.1969) (per curiam), cert. denied, 397 U.S. 936, 90 S.Ct. 946, 25 L.Ed.2d 116 (1970). In Liman, the court held that an insurer was obligated to indemnify a bankruptcy trustee who settled tort claims against the estate by paying the entire amount of the claims subject to the claimant repaying the bankruptcy estate $1,000 (representing the deductible) in exchange for a general claim against the estate. American Club urged the bankruptcy court to hold the Plan provision unenforceable against the P & I policies it provided PLI. In his summary judgment opinion, Judge Conrad rejected American Club’s entreaty and approved the Liman provision in the Plan, noting that American Club had not cited “a single valid authority for its position that the ‘pay first’ provision of an indemnity policy is not satisfied when an insolvent insured borrows funds to make an actual payment.” R1 at 689. Accordingly, the court concluded that “[i]f the insured pays the claim, whether with or without funds borrowed from Claimants, it has satisfied the plain language of the policy.” Id. Under the stipulation of settlement approved by the bankruptcy court on March 9, 1993, the PLI Trust pays each claimant the entire amount" }, { "docid": "15615209", "title": "", "text": "direct actions by claimants against marine indemnity insurers. See Ahmed, 444 F.Supp. at 572 (“Under New York common law, an insurer under an indemnity insurance policy is not liable to an injured person who has obtained a judgment against the insured even though the insured is insolvent and cannot pay the judgment.”). Although New York has broadly altered this common law rule by statute, the statute expressly preserves application of the common law rule to marine insurance contracts, such as P & I policies. See N.Y. Insur. Law § 3420(i) (McKinney 1985) (referencing § 2117(b)(3) which incorporates marine insurance contracts); Ahmed, 640 F.2d at 995-96. “The exception was consciously made by the New York legislature to eliminate a perceived competitive disadvantage to which New York’s marine insurers were placed by the direct action statute.” Miller v. American Steamship Owners Mut. Protection and Indem. Co., 509 F.Supp. 1047, 1049 (S.D.N.Y.1981). We have previously barred a suit by an insured’s judgment creditor against a marine policy on the ground that the suit closely resembled a direct action. See Wabco Trade Co. v. S.S. Inger Skou, 663 F.2d 369, 371 (2d Cir.1981) (holding that N.Y.C.P.L.R. § 5201(a), which provides for a money judgment against “any debt,” affords no basis for maintaining a direct action against a marine insurer of a judgment debtor); see also Cowan v. Continental Ins. Co., 86 A.D.2d 646, 647, 446 N.Y.S.2d 412, 414 (2d Dep’t 1982) (noting that judgment creditor of insured could not bring declaratory judgment against insured’s insurer). We will not permit the Claimants, who are the only parties in interest, to evade this bar via an illusory transaction that is of no financial consequence or interest to Prudential as the supposed insured. New York’s approach to insolvent insureds under the common law rule barring direct actions is quite categorical and firm in terms of the type of actual loss required to trigger an indemnification obligation: [I]f the insured was insolvent, so that the person injured or the estate of one killed was unable to satisfy the judgment against him, the insurer in effect would be released." }, { "docid": "4506465", "title": "", "text": "& I Clubs are mutual insurance associations. In a recent English decision from the House of Lords, Lord Brandon described P & I insurance in the following manner: It is the long-established practice of shipowners to enter their ships in protection and indemnity associations (P & I clubs) for the purpose of insuring themselves against a wide range of risks not covered by an ordinary policy of marine insurance. By so entering one or more of their ships in a P & I club shipowners become members of that club. P & I clubs operate on a system of mutual insurance under which the successful claim of one member is paid out of the contributions of, and the calls made on, all the members including himself. Each member is accordingly both an insurer and an insured. Firma C-Trade S.A. v. Newcastle Protection and Indem. Assoc., 2 ALL E.R. 705, 708 (1990). Fewer than twenty P & I clubs exist worldwide. Most if not all Clubs are members of the International Group of Protection and Indemnity Associations, an organization where member clubs share information and intelligence and “most importantly, pool then-losses and share in the purchase of reinsurance.” A. Flitner & A. Brunck, supra, vol. II, 2 (2d ed. 1992). See Paulyson Cert. I ¶ 11 (American Club, UK Club, Liverpool & London, West of England, and Skuld are known members of the International Group.) P & I policies often contain a “pay to be paid” or “pay first” provision which, in the event of a shipowner’s insolvency and absent creative undertakings, may render the policies unenforceable. See, e.g., Liman v. American S.S. Owners Mut. Protection and Indem. Assoc., 299 F.Supp. 106 (S.D.N.Y.), aff'd, 417 F.2d 627 (2d Cir.1969), cert. denied, 397 U.S. 936, 90 S.Ct. 946, 25 L.Ed.2d 116 (1970) (permitted insolvent P & I policy holder to borrow funds necessary to satisfy policy’s pay first provision); In re Prudential Lines, Inc., supra, 148 B.R. at 747-50 (same). Generally, but with some notable exceptions, a Club would insure Debtors’ entire ocean-going fleet for a particular year. Pau-lyson Cert. I, ¶" }, { "docid": "15615201", "title": "", "text": "to this essentially maritime contract, does not speak to the issue of what constitutes payment under an indemnity policy. See Liman v. American Steamship Owners Mut. Protection and Indem. Ass’n, 299 F.Supp. 106, 108 (S.D.N.Y.1969), aff'd, 417 F.2d 627 (2d Cir.1969) (per curiam). Because we see no need for a uniform federal rule (and because the parties have agreed that New York law governs), we apply New York law. See Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 316-17, 75 S.Ct. 368, 372, 99 L.Ed. 337 (1955). A. Liman v. American Steamship Oumers The recycling arrangement is patterned after a similar device approved by this court in Liman, which involved an identical American Club policy. In Liman, approximately 120 claims were presented by seamen and longshoremen against a bankrupt shipping company. Although the shipping company had sufficient funds to pay the claims, and although there was no reason to doubt that the company would be indemnified eventually by the insurer (net of the deductible), the Government (the bankrupt’s chief creditor) opposed payment of the claims as illegal preferences because “the estate would be diminished to the extent of the $1000 deductible which would be attributed to each of the claims to be defended.” Liman, 299 F.Supp. at 107. The district court in Liman described the financing mechanism adopted to obviate that objection: The Trustee therefore propos[ed] to finance the $1,000 deductible in each case by defending each lawsuit pursuant to an agreement with the claimant to the effect that in the event of recovery or settlement in an amount in excess of $1,000, the estate will pay the full amount of the recovery to the claimant and the claimant will thereupon repay $1,000 to the estate, in exchange for which the claimant will become a general creditor of the estate in the sum of $1,000. Id. at 108. The insurer objected that “in order to be indemnified under the policies the estate must show that it actually ‘absorbed’ the $1,000 deductible.” Id. Liman summarized New York law on what constitutes payment under an indemnity policy (an interpretation" }, { "docid": "15615202", "title": "", "text": "of the claims as illegal preferences because “the estate would be diminished to the extent of the $1000 deductible which would be attributed to each of the claims to be defended.” Liman, 299 F.Supp. at 107. The district court in Liman described the financing mechanism adopted to obviate that objection: The Trustee therefore propos[ed] to finance the $1,000 deductible in each case by defending each lawsuit pursuant to an agreement with the claimant to the effect that in the event of recovery or settlement in an amount in excess of $1,000, the estate will pay the full amount of the recovery to the claimant and the claimant will thereupon repay $1,000 to the estate, in exchange for which the claimant will become a general creditor of the estate in the sum of $1,000. Id. at 108. The insurer objected that “in order to be indemnified under the policies the estate must show that it actually ‘absorbed’ the $1,000 deductible.” Id. Liman summarized New York law on what constitutes payment under an indemnity policy (an interpretation which we adopted in our per curiam opinion affirming on the district court’s opinion): “[T]he test in New York is whether the assured has actually in good faith sustained the loss for which reimbursement is sought, and the insurer’s obligation to indemnify may not be avoided because of the assured’s insolvency.” Id. at 109. Thus, an indemnifiable payment entails (i) satisfaction of the claim and (ii) the absorption of some loss thereby by the insured, (iii) both in good faith. See also Ahmed v. American Steamship Mut. Protection & Indem. Ass’n, 640 F.2d 993, 995 (9th Cir.1981) (noting that under New York law an insurer’s obligation to pay under an indemnity policy “does not arise until after the insured suffers an actual monetary loss”); 8 John Alan Appleman & Jean Appleman, Insurance Law and Practice § 4856, at 519 (1981) (hereinafter “Appleman”) (“[I]n an action upon an indemnity policy, not only must a judgment have first been recovered against the insured ... but it must also appeal that the insured has suffered an actual monetary" }, { "docid": "4506506", "title": "", "text": "(quoting AHP, 566 F.Supp. 1485, 1497 (S.D.N.Y.1983)). Applying the above standard to P & I policies, we hold that injury-in-fact during the policy period triggers coverage. (emphasis added) State and federal decisions issued after Prudential Lines have buttressed our conclusion there. For example, the New York Court of Appeals recently wrote “Federal courts have concluded that the ‘injury-in-fact’ rule is most consistent with New York law.” Continental Casualty Co. v. Rapid-American Corp., 80 N.Y.2d 640, 650-1, 609 N.E.2d 506, 511, 593 N.Y.S.2d 966, 971 (1993). We therefore grant summary judgment and hold that injury-in-fact during applicable policy years triggers coverage under the Debtors’ P & I policies. The factual issue of when injury-in-fact occurs remains in dispute. Y. Arbitration Four foreign Clubs object to the Complaint on the grounds that their rules require arbitration of all disputes between individual Clubs and member shipowners. The Clubs cite to the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (“FAA”) , and recent Supreme Court decisions in support of their positions. In response, the Trust argues that fragmented foreign arbitrations will disrupt implementation of the Plan and delay the claims resolution process. The relevant arbitration provisions are similar in many respects. All require that any dispute under the Club’s rules be submitted to arbitration under English law. With respect to at least one key issue raised in the Trust’s Complaint, we note that English law differs substantially from precedent in this Circuit. Compare Firma C-Trade S.A. v. Newcastle Protection and Indemnity Assoc., 2 ALL E.R. 705 (1990) (holding that insolvent shipowner could not recover under P & I policies) with Liman v. American S.S. Owners Mut. Protection and Indem. Assoc., 299 F.Supp. 106 (S.D.N.Y.), aff'd, 417 F.2d 627 (2d Cir.1969), cert. denied, 397 U.S. 936, 90 S.Ct. 946, 25 L.Ed.2d 116 (1970) (permitted insolvent shipowner to borrow funds necessary to satisfy policy’s pay first provision). The FAA provides that written arbitration agreements, like any contract, are “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. The" }, { "docid": "15423044", "title": "", "text": "because the cause of action could only arise post-petition. In Orion, for example, we held to be non-core Orion’s cause of action for anticipatory breach of a pre-petition contract that sought declaratory and other relief from Showtime even though the event that triggered Orion’s claim occurred post-petition. See In re Orion Pictures Corp., 4 F.3d at 1097, 1102; see also McMahon v. Providence Capitol Enters., Inc. (In re McMahon), 222 B.R. 205, 208 (S.D.N.Y.1998). Notwithstanding that the Trust’s claims are upon pre-petition contracts, we conclude that the impact these contracts have on other core bankruptcy functions nevertheless render the proceedings core. Indemnity insurance contracts, particularly where the debtor is faced with substantial liability claims within the coverage of the policy, “may well be ... ‘the most important asset of [i.e., the debtor’s] estate,’ ” Dicola v. American S.S. Owners Mut. Protection & Indem. Ass’n (In re Prudential Lines Inc.), 170 B.R. 222, 229 (S.D.N.Y.1994) (quoting A.H. Robins Co., Inc. v. Piccinin, 788 F.2d 994, 1001 (4th Cir.1986) (alteration in original)). As such, resolving disputes relating to major insurance contracts are bound to have a significant impact on the administration of the estate. In Orion, we concluded that where the insurance proceeds would only augment the assets of the estate for general distribution, the effect on the administration of the estate was insufficient to render the proceedings core. See Orion, 4 F.3d at 1102 ($77 million potential debt which admittedly would ease administration and liquidation of the estate still encompassed by Marathon prohibition). Resolving the disputes over the P & I policies here has a much more direct impact on the core administrative functions of the bankruptcy court. The insurance proceeds are almost entirely earmarked for paying the personal injury claimants and represent the only potential source of cash available to that group of creditors. However, under the pay-first provisions of the P & I policies, those proceeds will not be made available until the Trust has paid the claims. Debtors’ insolvency makes that threshold requirement difficult to meet; as is typical, their lack of assets leaves them unable to pay" }, { "docid": "18600723", "title": "", "text": "all extrinsic evidence relating to the parties’ course of dealing with respect to applying deductibles to claims arising from exposure to asbestos has been presented. Accordingly, the case will be remanded to the bankruptcy court to consider any additional extrinsic evidence on the issue. If extrinsic evidence does not resolve the question, application of the contra proferentem rule will. IV. “Liman” Recycling Issue As the phrase implies, “Payment & Indemnification” policies require the insured to first pay a claimant before the insurers’s duty to indemnify the insured arises. The policies involved in this case are no exception, as Judge Conrad held. Because the PLI Disbursement Trust has insufficient funds to pay the full amount of the settlement to each claimant, the “Second Amended Joint Plan of Reorganization as Modified” provides a method of triggering American Club’s duty to indemnify by using the rather small amount of funds contained in the Trust. Section 4.05.07(a)(ii) of the Plan contains a so-called “Liman” provision which operates to provide to the Trustee a means of satisfying the “pay first” obligation contained in the policies. The provision reads in relevant part as follows: [t]he PLI Disbursement Trustee is authorized to enter into arrangements under which in substance the PLI Disbursement Trust pays the Allowed Insured Claim in full in cash; the holder of the Allowed Insured Claim repays in cash the full amount of the Deductible Claim and the Club or other insurer reimburses the PLI Disbursement Trust in cash for the full amount of the Excess Claim (and any previously unreimbursed defense costs in excess of the applicable deductible incurred in connection with liquidation of the Claim); and the holder of the Allowed Insured Claim is given an Allowed Claim in Class 5C in the amount of the Deductible Claim. R1 at 133. This provision is patterned after the method approved in Liman v. American Steamship Owners Mutual Protection and Indemnity Associations, 299 F.Supp. 106 (S.D.N.Y.), aff'd 417 F.2d 627 (2d Cir.1969) (per curiam), cert. denied, 397 U.S. 936, 90 S.Ct. 946, 25 L.Ed.2d 116 (1970). In Liman, the court held that an insurer" }, { "docid": "15615203", "title": "", "text": "which we adopted in our per curiam opinion affirming on the district court’s opinion): “[T]he test in New York is whether the assured has actually in good faith sustained the loss for which reimbursement is sought, and the insurer’s obligation to indemnify may not be avoided because of the assured’s insolvency.” Id. at 109. Thus, an indemnifiable payment entails (i) satisfaction of the claim and (ii) the absorption of some loss thereby by the insured, (iii) both in good faith. See also Ahmed v. American Steamship Mut. Protection & Indem. Ass’n, 640 F.2d 993, 995 (9th Cir.1981) (noting that under New York law an insurer’s obligation to pay under an indemnity policy “does not arise until after the insured suffers an actual monetary loss”); 8 John Alan Appleman & Jean Appleman, Insurance Law and Practice § 4856, at 519 (1981) (hereinafter “Appleman”) (“[I]n an action upon an indemnity policy, not only must a judgment have first been recovered against the insured ... but it must also appeal that the insured has suffered an actual monetary loss or damage”). In holding that the deductible financing arrangement amounted to payment under this standard, the Liman court focused on the use of the challenged arrangement only to finance the deductible, the rest of each claim representing a cash loss out of pocket. Liman, 299 F.Supp. at 109-10. The court reasoned that: (i) the purpose of the deductible is “to enable the insurer to avoid responsibility for small claims which are usually both numerous and costly” and this purpose was not undermined by the arrangement; (ii) the source of the funds for paying the deductible is of no concern to the insurer because the insurer is not required to reimburse the policyholder for the deductible; (iii) other than the financing of the deductible, “the Trustee would satisfy each judgment against the estate and actually pay out of the estate to the claimant all funds for which reimbursement will be sought from defendant,” id. at 110; and (iv) given these factors, a failure to find that the insured had paid the claims would permit the" }, { "docid": "15615208", "title": "", "text": "only had no intention of paying the promissory note, but offered no hope of eventually providing any value at all in exchange for the note. The company was dormant. Bonanza was gone, and it was not coming back. Id. at 122-23. Prudential is blocked by the same obstacle in this suit. The underlying claims were satisfied with non-recourse notes that entail for Prudential no actual loss incurred in good faith. The only difference between the present case and Conoco is that here Prudential issues boomerang payments from the $300,-000 account. But as these funds immediately came home, the Asbestosis Claimants received nothing of value from Prudential, and Prudential sustained no true loss. We do not think that this sham transaction triggered an indemnification obligation under New York law. C. Direct Actions by Claimants Against Marine Indemnity Insurers It is obvious for reasons previously stated that the Claimants are the only parties with an interest in the indemnification from American Club. Our holding is therefore independently supported by the doctrine of New York law that bars direct actions by claimants against marine indemnity insurers. See Ahmed, 444 F.Supp. at 572 (“Under New York common law, an insurer under an indemnity insurance policy is not liable to an injured person who has obtained a judgment against the insured even though the insured is insolvent and cannot pay the judgment.”). Although New York has broadly altered this common law rule by statute, the statute expressly preserves application of the common law rule to marine insurance contracts, such as P & I policies. See N.Y. Insur. Law § 3420(i) (McKinney 1985) (referencing § 2117(b)(3) which incorporates marine insurance contracts); Ahmed, 640 F.2d at 995-96. “The exception was consciously made by the New York legislature to eliminate a perceived competitive disadvantage to which New York’s marine insurers were placed by the direct action statute.” Miller v. American Steamship Owners Mut. Protection and Indem. Co., 509 F.Supp. 1047, 1049 (S.D.N.Y.1981). We have previously barred a suit by an insured’s judgment creditor against a marine policy on the ground that the suit closely resembled a direct action." }, { "docid": "6384877", "title": "", "text": "had filed more than 18,000 claims. The proceeds of the P & I policies were the only funds potentially available to cover the employees’ personal injury claims. At the heart of each of those policies was a “pay-first” provision under which the insurers’ liability was not triggered until the insured paid the claim of the personal injury victim. It was important for the estate’s ability to reorganize to determine whether creative means to satisfy the “pay-first” obligation without expending large sums that the estate did not have would meet the requirements of the policies. Though the individual members of the panel, Circuit Judges Walker, Newman and Calabresi, did not then determine whether a suit alleging a post-petition breach of a contract was or was not necessarily a core proceeding, they neverthe less joined in an analysis relevant here, and, at least impliedly, in the view that the matter then before the Second Circuit should not be deemed to be a Marathon-type lawsuit. In U.S. Lines, the debtor was seeking a declaratory judgment with respect to the construction of a pre-petition contract. In an analysis highly relevant here, the Second Circuit (without dissent in this regard from either of the concurring judges) held: Notwithstanding that the Trust’s claims are upon pre-petition contracts, we conclude that the impact these contracts have on other core bankruptcy functions nevertheless render the proceedings core. U.S. Lines, 197 F.3d at 638 (emphasis added). The court recognized that the debtor’s indemnity insurance contracts could well be the most important asset of the debtor’s estate. Id. And it continued: As such, resolving disputes relating to major insurance contracts are bound to have a significant impact on the administration of the estate. Id. The Second Circuit then contrasted Orion, “where the insurance proceeds would only augment the assets of the estate for general distribution.” Id. While that kind of effect on the administration of the estate was insufficient to render the proceedings core, id. (citing Orion, 4 F.3d at 1102), “[rjesolving the disputes over the P & I policies here has a much more direct impact on the core" }, { "docid": "18600725", "title": "", "text": "was obligated to indemnify a bankruptcy trustee who settled tort claims against the estate by paying the entire amount of the claims subject to the claimant repaying the bankruptcy estate $1,000 (representing the deductible) in exchange for a general claim against the estate. American Club urged the bankruptcy court to hold the Plan provision unenforceable against the P & I policies it provided PLI. In his summary judgment opinion, Judge Conrad rejected American Club’s entreaty and approved the Liman provision in the Plan, noting that American Club had not cited “a single valid authority for its position that the ‘pay first’ provision of an indemnity policy is not satisfied when an insolvent insured borrows funds to make an actual payment.” R1 at 689. Accordingly, the court concluded that “[i]f the insured pays the claim, whether with or without funds borrowed from Claimants, it has satisfied the plain language of the policy.” Id. Under the stipulation of settlement approved by the bankruptcy court on March 9, 1993, the PLI Trust pays each claimant the entire amount of the claim subject to the claimant lending back to the Trust a sum up to and including the entire amount of the claim, to be repaid by the Trust after American Club indemnifies PLI. See ¶¶ 11 and 12 of the so ordered stipulation, R2 at 5-6. While this recycling of funds appears to be of broader scope than that contemplated in § 4.05.07(a)(ii) of the Plan, quoted supra, it is the practice established by the so ordered stipulation, and its propriety is challenged on appeal. On appeal, American Club launches a twofold attack on the Liman arrangement. Initially, it argues that the procedure is impermissible as it applies to American Club’s P & I policies because Liman was wrongly decided. American Club asserts that Liman, resting on questionable reasoning, establishes an arrangement by which an insured’s obligation to “pay first” becomes illusory, in derogation of the policy. But the Second Circuit affirmed Liman. Recognizing that this Court has no power to overturn Liman, American Club next argues that the decision should be limited" }, { "docid": "15615211", "title": "", "text": "The policy being one of indemnity against loss suffered by the principal, it followed that the insured having suffered no damage, there was no loss for the insurer to indemnify. Jackson v. Citizens Cas. Co., 277 N.Y. 385, 389, 14 N.E.2d 446 (1938); see 175 East 74th Corp. v. Hartford Accident & Indem. Co., 51 N.Y.2d 585, 591, 435 N.Y.S.2d 584, 586, 416 N.E.2d 584 (1980) (“The insolvency or bankruptcy of an insured, which prevented payment, necessarily relieved the insurer of any obligation to the insured and the injured party was left without a source of recovery.”); see also In re F.O. Baroff Co., 555 F.2d 38, 41 (2d Cir.1977) (noting that prior to the enactment of the direct action statute, “courts held that in the event of his bankruptcy, the insured, although hable to a third person, suffered no loss since he was unable to pay the one he had injured. Because the .insured had not sustained a loss, the insurance company had no liability to the insured.”). Thus, as the law stood under New York common law — and as it still stands in relation to marine insurance policies — the insured’s lack of assets to satisfy claims against the bankrupt estate typically leaves the insured unable sustain a loss and pay the claim. This is simply one consequence of purchasing a marine policy of indemnity rather than a liability policy. D. The Authorities Cited by the Claimants The several New York cases upon which claimants rely either support our conclusion or are distinguishable. In Campbell v. London & Lancashire Indemnity Co., 168 N.Y.S. 300 (N.Y.Sup.1917), the insured under an indemnity policy, being insolvent, paid a claim with funds borrowed for that purpose from a third party, secured initially by a promissory note, and later (after the funds were used to pay the claimant) by an assignment of the insurance claim for indemnification. The court found that this arrangement satisfied the pay first provision of the policy, but added: “It must be admitted that, if there had been no payment of the judgments to the judgment creditor, but" }, { "docid": "4506466", "title": "", "text": "Associations, an organization where member clubs share information and intelligence and “most importantly, pool then-losses and share in the purchase of reinsurance.” A. Flitner & A. Brunck, supra, vol. II, 2 (2d ed. 1992). See Paulyson Cert. I ¶ 11 (American Club, UK Club, Liverpool & London, West of England, and Skuld are known members of the International Group.) P & I policies often contain a “pay to be paid” or “pay first” provision which, in the event of a shipowner’s insolvency and absent creative undertakings, may render the policies unenforceable. See, e.g., Liman v. American S.S. Owners Mut. Protection and Indem. Assoc., 299 F.Supp. 106 (S.D.N.Y.), aff'd, 417 F.2d 627 (2d Cir.1969), cert. denied, 397 U.S. 936, 90 S.Ct. 946, 25 L.Ed.2d 116 (1970) (permitted insolvent P & I policy holder to borrow funds necessary to satisfy policy’s pay first provision); In re Prudential Lines, Inc., supra, 148 B.R. at 747-50 (same). Generally, but with some notable exceptions, a Club would insure Debtors’ entire ocean-going fleet for a particular year. Pau-lyson Cert. I, ¶ 4. Deductibles for each accident or occurrence ranged between $250 and $100,000. See Complaint, ¶¶ 12, 13. Policy limits also varied from year to year. Procedural History Debtors filed a voluntary petition for relief under chapter 11 of the Bankruptcy Code, 11 U.S.C. § 101 et seq. on November 24, 1986. Debtors’ Plan was confirmed on May 16, 1989. The Plan as amended transfers all of Debtors’ maritime insurance rights to the Trust and the Reorganization Trustee (“Trustee”). See Plan, Art. VII(A)(l)(i) (“U.S. Lines and U.S. Lines (S.A.) will transfer to the USL Reorganization Trust ... all the insurance rights of such Debtors, including without limitation their Protection and Indemnity Cov-erage_”) The Trustee, in turn, must collect all monies owed under applicable insurance policies. See Id. (“The USL Reorganization Trustee shall attempt to secure for the benefit of the holders of the Personal Injury Claims all such insurance rights and Indemnification and Contribution Rights.”) The Trustee is empowered to resolve disputed personal injury claims and to distribute Debtor’s assets to personal injury claimants. See United" }, { "docid": "15615277", "title": "", "text": "of New York have repeatedly held that an insured fulfills his obligations under an indemnity policy and is entitled to reimbursement when a judgment against him has been satisfied, and the insurer may not escape its obligation to indemnify by showing that the payment made by the assured was advanced to it by a third party or financed in some other fashion. Liman v. American S.S. Owners Mut. Protection & Indem. Ass’n, 299 F.Supp. 106, 109 (S.D.N.Y.1969), aff'd, 417 F.2d 627 (2d Cir.1969). The majority rejects plaintiffs’ plan of recycling payments to the claimants on the ground that plaintiffs’ arrangement was to finance “the whole of the claims, not the deductible alone.” The majority then reasons that “indemnity is sought for a loss that the policy holder has not incurred.” (emphasis added). Thus, the majority finds that plaintiffs’ non-recourse notes to the claimants is not a loss. In all due respect, I fail to understand the proffered distinction. The payment of $300,-000, the satisfaction of judgments, along with the proffer of the non-recourse notes to each claimant constitutes a loss to the estate. It has created a new obligation to pay from existing estate funds certain sums of money. For example in Liman, the estate was able to pay all but $1,000 to each claimant. If it had been required to pay all 147 deductibles, it would not have had sufficient funds to pay any claims. Thus, the promissory notes in Liman were directly related to the estate’s ability to pay the various claimants. In addition in Liman, if all deductibles had been paid, the United States government would not have sufficient funds to protect its priority claims. The majority reasons that “the insured’s lack of assets to satisfy claims against the bankrupt estate typically leaves the insured unable to sustain the loss and pay the claim.” The result of the majority’s decision is wholly inequitable; it allows a windfall to the insurer and denies any hope of payment to the injured worker. The financial plan created by Liman followed by the bankrupt estate mitigates this inequity and provides some" }, { "docid": "15423045", "title": "", "text": "to major insurance contracts are bound to have a significant impact on the administration of the estate. In Orion, we concluded that where the insurance proceeds would only augment the assets of the estate for general distribution, the effect on the administration of the estate was insufficient to render the proceedings core. See Orion, 4 F.3d at 1102 ($77 million potential debt which admittedly would ease administration and liquidation of the estate still encompassed by Marathon prohibition). Resolving the disputes over the P & I policies here has a much more direct impact on the core administrative functions of the bankruptcy court. The insurance proceeds are almost entirely earmarked for paying the personal injury claimants and represent the only potential source of cash available to that group of creditors. However, under the pay-first provisions of the P & I policies, those proceeds will not be made available until the Trust has paid the claims. Debtors’ insolvency makes that threshold requirement difficult to meet; as is typical, their lack of assets leaves them unable to pay all of the claims first and seek indemnification later. See Dicola v. American 5.5. Owners Mut. Protection & Indem. Ass’n (In re Prudential Lines Inc.), 158 F.3d 65, 75 (2d Cir.1998). Payment arrangements that may be possible when the insured is solvent, may not be available when the insured is insolvent. See id. at 73-76. Bankrupt debtors are limited in their ability to obtain new loans which otherwise could be used to create funds to satisfy the pay-first requirement, see id. at 75, and promissory notes issued by an insolvent insured to a claimant are not considered payment that triggers an obligation to indemnify, see id. at 74. The insolvent insured is therefore often forced to satisfy the pay-first requirement by means of complex, creative payment schemes. See, e.g., Liman v. American 5.5. Owners Mut. Protection & Indem. Ass’n, 299 F.Supp. 106, 108 (S.D.N.Y.), aff'd, 417 F.2d 627 (2d Cir.1969) (per curiam ) (utilizing a payoui/loan-back revolving cash procedure). In addition to the difficulties involved in paying the claims, the Trust faces a significant risk" } ]

[ { "docid": "18531509", "title": "", "text": "protect the public customers of securities dealers from suffering the consequences of financial instability in the brokerage industry,” Securities and Exch. Comm’n v. F.O. Baroff Co., Inc., 497 F.2d 280, 281 (2d Cir.1974) (citations omitted), by “providing financial relief to the customers of failing broker-dealers with whom they had left cash or securities on deposit,” Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 413, 95 S.Ct. 1733, 1735, 44 L.Ed.2d 263 (1975). See also In re Brentwood Sec., Inc., 925 F.2d 325, 326-27 (9th Cir.1991); Stalvey & Assocs., 750 F.2d at 468. SIPA created SIPC and SIPC maintains an insurance fund not unlike the Federal Deposit Insurance Corporation. See Brentwood Sec., 925 F.2d at 327; In re Oberweis Sec., Inc., 135 B.R. 842, 845 (Bankr.N.D.Ill.1991). SIPA was not, however, “designed to provide full protection to all victims of a brokerage collapse,” and recovery is limited to a certain class of investors who are “customers” within the terms of SIPA. Securities and Exch. Comm’n v. Packer, Wilbur & Co., Inc., 498 F.2d 978, 983 (2d Cir.1974); F.O. Baroff Co., 497 F.2d at 281. In addition, the courts in this Circuit have held that “customer” is a term of art and its definition should be construed narrowly. In re MV Sec., Inc., 48 B.R. 156, 160 (Bankr.S.D.N.Y.1985) (citing Securities Investor Protection Corp. v. Morgan, Kennedy & Co., 533 F.2d 1314 (2d Cir.), cert. denied, 426 U.S. 936, 96 S.Ct. 2650, 49 L.Ed.2d 387 (1987); F.O. Baroff Co., 497 F.2d at 280). SIPA does not use “customer” in the “colloquial sense of ‘one who buys or trades’”; instead, it is a “shorthand designation for those eligible ... to receive special protection for their investments.” Stalvey & Assocs., 750 F.2d at 468. SIPA defines a customer as: any person ... who has a claim on account of securities received, acquired, or held by the debtor in the ordinary course of its business as a broker or dealer from or for the securities accounts of such person for safekeeping, with a view to a sale, to cover consummated sales, pursuant to purchases, as collateral" } ]

[ { "docid": "11602655", "title": "", "text": "of any or all creditors of the debtor, notwithstanding that some ground exists for declaring such contract, agreement, or understanding void or voidable in a suit between the claimant and the debtor. 15 U.S.C. § 78lll(2) (2006) (emphasis added). In Baroff, the seminal case regarding the SIPA definition of “customer,” the Second Circuit rejected a “literal” reading of the definition as failing “to accommodate the patent legislative purposes.” 497 F.2d at 282. Because Congress had intended SIPA to protect customers who had left cash and securities deposited in their brokerage accounts when the broker-dealer went bankrupt, see Barbour, 421 U.S. at 415, 95 S.Ct. 1733, the Baroff court read into the SIPA customer definition an en-trustment requirement, observing that Congress “stressed protection to ... the public customer who has entrusted securities to a broker for some purpose connected with participation in the securities markets.” Baroff, 497 F.2d at 283 (emphasis added). The Second Circuit has recently reiterated that “the critical aspect of the ‘customer’ definition is the entrustment of cash or securities to the broker-dealer for the purposes of trading securities.” Madoff 654 F.3d at 236 (original emphasis omitted; new emphasis added) (citation omitted); see also In re New Times Sec. Servs., Inc., 463 F.3d 125, 128 (2d Cir.2006) (“New Times ”). In explaining this entrustment requirement, the Baroff court noted that Congress’s emphasis in enacting SIPA protections was “on the customer as investor and trader, not on others who might become creditors of the broker-dealer for independent reasons.” 497 F.2d at 283. Accordingly, the Baroff court held that “customers” are those claimants who convey cash or securities to a broker through an agreement that has “the indicia of the fiduciary relationship between a broker and his public customer” and not of “an ordinary debtor-creditor relationship.” Id. at 284 (emphasis added). “Whether an individual enjoys ‘customer’ status thus turns on the transactional relationship.” New Times, 463 F.3d at 128 (citing Baroff). Although Baroff did not state a definition for a “fiduciary relationship,” this Circuit has since described the relationship, as recognized at common law, as follows: At the heart of" }, { "docid": "7296951", "title": "", "text": "public customers attempting to invest through debtor thereby creating the usual fiduciary relationship between a stockbroker and its public customer. Accordingly, claimants are customers of debtor and have claims for cash. EVIDENCE OF INDEBTEDNESS The Trustee argues that even if claimants are customers the evidence of indebtedness is all that claimants are entitled to, receive pursuant to SIPA’s remedial scheme. The Trustee cites SIPC v. Associated Underwriters, 423 F.Supp. 168 (D.Utah 1975) and In re Atkeison, 446 F.Supp. 844 (M.D.Tenn.1977) in support of his argument. In Associated Underwriters, the Court found that SIPA contemplates the return of the customer property held by the broker or the property the broker should be holding for the customer’s account. The Associated Court found that the contract between debtor and claimants allowed for debtor’s endorsement of the investment contracts purchased by claimants and that claimants’ belief that their contract required the endorsement by a NYSE firm was mistaken. The fact that the investment contracts were worthless did not alter the fact that claimants received what they had bargained for when the trustee returned the investment contracts. Pursuant to SIPA, claimants received them specifically identifiable property and thus their claims were satisfied. Similarly, in In re Atkeison, claimant purchased two investment certificates from a corporation found to be an alter ego of debt- or. The corporation was formed for the purpose of loaning money to bond purchasers. The Court found that SIPA was intended to protect customers who “have either cash or securities or both in the custody of broker-dealer firms” and that if the certificates were not securities then claimant had deposited cash with debtor and if the certificates were securities then claimant had received the benefit of her bargain because she has the securities themselves. Id. at 847. The Court held that claimant had received all that she had bargained for, that is, the certificates which were specifically identifiable securities. Associated and Atkeison are both distinguishable from this case because claimants did not authorize and did not ratify debtor’s issuance of the evidence of indebtedness whereas in the cases relied upon by the" }, { "docid": "16247670", "title": "", "text": "5255 (stating “[t]he primary purpose of [SIPA] ... is to provide protection for investors if the broker-dealer with whom they are doing business encounters financial troubles”). But it is clear that the statute is not designed to insure investors against all losses. See, e.g., Packer, Wilbur & Co., 498 F.2d at 983 (“SIPA was not designed to provide full protection to all victims of a brokerage collapse.”); Sec. Investor Prot. Corp. v. Associated Underwriters, Inc., 423 F.Supp. 168, 171 (D.Utah 1975) (SIPA does not “guarantee that customers will recover their investments which may have diminished as a result of, among other things, market fluctuations or broker-dealer fraud”). But, no party has contested the availability of advances under SIPA to cushion the impact of Ma-doff s fraud. In any event, SIPA is intended to expedite the return of customer property, and SIPC provides advances on customer property. Customer property, in turn, is a term defined by the statute as “cash and securities ... at any time received, acquired, or held by or for the account of a debtor from or for the securities accounts of a customer, and the proceeds of any such property transferred by the debtor, including property unlawfully converted.” 15 U.S.C. § 78lll(4). Here, notwithstanding the BLMIS customer statements, there were no securities purchased and there were no proceeds from the money entrusted to Madoff for the purpose of making investments. Moreover, customers share “ratably” in customer property on the basis of their “net equity,” id. § 78fff-2(c)(l)(B); so if customers receive SIPC advances based on property that is a fiction, those advances will necessarily diminish the amount of customer property available to other investors, including those who have not recouped even their initial investment. Because the main purpose of determining “net equity” is to achieve a fair allocation of the available resources among the customers, the Trustee properly rejected the Last Statement Method as it would have undermined this objective. IV The objecting claimants maintain that a pair of decisions of this Court — New Times I and New Times II — dictate that the Last Statement" }, { "docid": "18756072", "title": "", "text": "debtor’s business.... Whatever their rights may be, it is not appropriate to treat such persons as customers. SIPA Amendments: Hearings on H.R. 8331 Before the Subcomm. on Securities of the Senate Comm, on Banking, Housing, and Urban Affairs, 95th Cong., 2nd Sess. 40-41 (1978). Courts that have considered the issue of who is a customer of a broker-dealer emphasize two factors: the transactions which form the basis of the claim must have been related to investment trading or participation in the securities market, and the transactions must have arisen out of the type of fiduciary relationship which generally characterizes the relationship between the broker-dealer and its customers. In re Bevill, Bresler & Shulman Asset Mgmt. Corp., 67 B.R. 557 (D.N.J.1986). See In re Investors Security Corp., 6 B.R. 420, 424 (Bkrtcy.W.D.Pa.1980) (“[T]he primary inquiry Js whether [claimant] entrusted cash with the debtor ... in such a manner that a fiduciary relationship ... was created.”); SEC v. F.O. Baroff Co., 497 F.2d 280, 283 (2nd Cir.1974) (“[T]he legislative history ... stressed protection to, and equality of, treatment of the public customer who has entrusted securities to a broker for some purpose connected with participation in the securities markets.”); In re Hanover Square Securities, 55 B.R. 235 (Bkrtcy.S.D.N.Y.1985) (“Congress intended to protect those who had entrusted cash or securities to their broker/dealers for the purpose of trading and investing.”). See also In re Stalvey & Assoc., 750 F.2d 464 (5th Cir.1985); In re John Muir & Co., 51 B.R. 150 (Bkrtcy.S.D.N.Y.1985). The transactions between the Pattersons, Brittenum and the debtor did not relate to investment trading or participation in the securities market on the Pattersons’ behalf. The Pattersons agreed to transfer the securities to Brittenum for a fixed return, and the Pattersons even insisted that the securities be placed in a safe deposit box, as opposed to traded in the market for their benefit. The Pattersons were investors in the sense that they invested in the debtor, through its sole shareholder in the form of loans. But the Pattersons did not invest through the debtor, and, therefore, no fiduciary relationship was created" }, { "docid": "7296940", "title": "", "text": "for such transactions to be subject to an early withdrawal penalty. The Court also finds that claimants believed that they were depositing funds for the purchase of securities and were not told and were not aware that their investment was to become part of debtor’s capital. Claimants did not intend to loan money to debtor. Each of the claimants testified that they deposited funds with the debtor for the purchase of certificates of deposits either for the purchase of individual CDs or jumbo CDs purchased by pooling the participants’ investments. Raymond Lozeau, one of debtor’s sales representatives, testified that the deposit account was sold on the basis that the funds would be pooled to allow the purchase of CDs. The Court found all the claimants to be very credible and finds that each claimant entrusted funds to debtor for the purpose of purchasing CDs. The Court further finds that the objective indicia of the transaction is entirely consistent with purchasing CDs. Because claimants did not intend to loan money to debtor and were unaware that this may have been debtor’s intention, this case is distinguishable from the cases relied upon by the trustee to support his argument that claimants loaned money to debtor. See, SEC v. F.O. Baroff Co., 497 F.2d 280 (2nd Cir.1974); SIPC v. Executive Secur. Corp., 556 F.2d 98 (2nd Cir.1977); In re Brittenum & Associates, Inc., 82 B.R. 64 (Bankr.E.D.Ark.1987). Consequently, the Court disagrees with the Trustee’s determination that the deposit account transactions were loans. DEPOSIT ACCOUNT DOCUMENT Even though the Court has determined that the deposit account transaction is not a loan this does not end the inquiry. The Court finds that the deposit account document is a security. Section 78111 (14) of SIPA defines security as: The term “Security” means- any note, stock, treasury stock, bond, debenture, evidence of indebtedness, any collateral trust certificate, preorganization certificate or subscription, transferable share, voting trust certificate, certificate of deposit, certificate of deposit for a security, any investment contract ... (if such investment contract or interest is the subject of a registration statement with the Commission pursuant to" }, { "docid": "16247659", "title": "", "text": "accounts of such person for safekeeping, with a view to sale, to cover consummated sales, pursuant to purchases, as collateral, security, or for purposes of effecting transfer. 15 U.S.C. § 78lll(2)(A). We conclude that the BLMIS claimants are customers with claims for securities within the meaning of SIPA. While SIPA does not — and cannot — protect an investor against all losses, it “does ... protect claimants who attempt to invest through their brokerage firm but are defrauded by dishonest brokers.” Ahammed v. Sec. Inv. Prot. Corp. (In re Primeline Sec. Corp.), 295 F.3d 1100, 1107 (10th Cir.2002). SIPA provides this protection by ensuring that claimants who deposited cash with a broker “for the purpose of purchasing securities,” 15 U.S.C. § 78lll(2)(B)(i), are treated as customers with claims for securities. This is so because the “critical aspect of the ‘customer’ definition is the entrustment of cash or securities to the broker-dealer for the purposes of trading securities. ” Appleton v. First Nat’l Bank of Ohio, 62 F.3d 791, 801 (6th Cir.1995) (emphasis added). The legislative history supports the view that the BLMIS claimants are customers with claims for securities. “Throughout the [House Report on SIPA,] ‘investors’ is used synonymously with ‘customers,’ ” and it is clear that an individual who had documentation of his status as a “trading customer ... was to be protected.” ’ Sec. & Exch. Comm’n v. F.O. Baroff Co., 497 F.2d 280, 283 (2d Cir.1974). Indeed, treating the BLMIS claimants as customers with claims for securities protects their “legitimate expectations” as investors in the securities market. S.Rep. No. 95-763, at 2 (1978), reprinted in 1978 U.S.C.C.A.N. 764, 765. Similarly, SIPA’s implementing regulations bolster the shared view of the Trustee, SIPC, and the SEC that a claimant who has “written confirmation” that securities have been purchased or sold on his or her behalf should be treated as a customer with a claim for securities. 17 C.F.R. §§ 300.501(b)(1), 300.502(a)(1). The regulation does not, however, mandate that this “written confirmation” form the basis for calculating a customer’s “net equity.” II The BLMIS claimants object that the only way" }, { "docid": "18510543", "title": "", "text": "as one for cash in the amount of the confirmed sale. Some claimants also placed sell orders for which they never received written confirmation and which they also want to have recognized as entitling them to cash. Insofar as each claimant has a written confirmation of sale, the Court is sustaining his objection to the Trustee’s determination and denying the Trustee’s motion to confirm that determination. The Court deems this result compelled by Rule 501(a)(1) of the Rules adopted by the Securities Investment Protection Corporation (“SIPC”) in March 1988. 17 CFR §§ 300.-501(a)(1). SIPC’s rules lay down a “bright line” for determining in a liquidation proceeding whether a securities transaction gives rise to a “claim for cash” or a “claim for securities.” Under those rules each of the objecting claimants, because of the receipt of written confirmation of a sale prior to the filing of SIPC’s application to liquidate Investors Center, has a claim for cash and not for securities and the Trustee’s determination otherwise is incorrect. I SIPA was passed by Congress in 1970 after a wave of brokerage house failures in the late 1970’s. It was extensively amended in 1978. In SIPC v. Barbour, 421 U.S. 412, 95 S.Ct. 1733, 44 L.Ed.2d 263 (1975), the Supreme Court explained SIPA’s origins as follows: Following a period of great expansion in the 1960’s, the securities industry experienced a business contraction that led to the failure or instability of a significant number of brokerage firms. Customers of failed firms found their cash and securities on deposit either dissipated or tied up in lengthy bankruptcy proceedings. In addition to its disastrous effects on customer assets and investor confidence, this situation also threatened a “domino effect” involving otherwise solvent brokers that had substantial open transactions with firms that failed. Congress enacted SIPA to arrest this process, restore investor confidence in the capital markets, and to upgrade the financial responsibility requirements for registered brokers and dealers. 421 U.S. at 415, 95 S.Ct. at 1736 See also, In re Bell & Beckwith, 821 F.2d 333, 335 (6th Cir.1987); In re Brentwood Securities, Inc., 925 F.2d" }, { "docid": "7296949", "title": "", "text": "claim); In re Stalvey & Associates, Inc., 750 F.2d 464 (5th Cir.1985) (broker-dealers access to bonds sufficient to create customer status however pledge as collateral precluded claim); In re Waddell Jenmar Secur. Inc., 126 B.R. 935 (Bankr.E.D.N.C.1991) affirmed 991 F.2d 792 (4th Cir.1993) (making funds available to broker with the intent that broker purchase securities created customer claim); In the Matter of Investors Secur. Corp., 6 B.R. 420 (Bankr.W.D.Pa.1980) (entrustment of funds determinative of customer status not broker’s subsequent misuse of funds). The most important factor in determining customer status is whether claimant entrusted money or securities to the broker. Id. Similarly, in the context of 11 U.S.C. § 741, the Eleventh Circuit held that to establish customer status claimants must first show entrustment of funds to the broker for the purpose of effecting securities transactions and second, that the agreements concerning the transaction contain indicia of the usual fiduciary relationship between a broker and its public customer. In re ESM Government Secur. Inc., 812 F.2d 1374 (11th Cir.1987). The Court relied on SIPA cases in denying customer status in ESM. Thus the standard announced in ESM for establishing customer status is applicable in this SIPA case. This Court has previously held that claimants entrusted funds to debtor for the purpose of purchasing CDs. Certificates of Deposit are securities. 15 U.S.C. § 78lll (14). Thus claimants have satisfied the first requirement for customer status: entrustment of funds for the purpose of effecting securities transactions. The second element required by ESM is that the securities transaction contain “indi-cia of the usual fiduciary relationship between a broker and his public customer, not the characteristics of, at most, an ordinary debtor-creditor relationship.” Id. at 1376 citing SEC v. F.O. Baroff, 497 F.2d 280, 284 (2nd Cir.1974). Had claimants loaned money to debtor as the trustee argues or knowingly purchased or ratified the purchase of the evidence of indebtedness, they would have only an ordinary debtor-creditor relationship with debtor. However, the circumstances in this case convince the Court that claimants entrusted money to debtor for the purpose of purchasing securities and that claimants were" }, { "docid": "11602663", "title": "", "text": "significant portions of their briefs to debating the proper economic characterization of repurchase agreements, namely whether they are better understood as purchases and sales of securities or as loans secured by the securities. See SEC v. Drysdale Secs. Corp., 785 F.2d 38, 41-42 (2d Cir.1986) (recognizing the similarities and differences between repurchase agreements and loans secured by securities). The Banks contend that their transactions should be equated with a purchase and sale of a security. This debate is unnecessary. A purchase/sale bears even fewer indicia of a fiduciary relationship than a secured loan, as a creditor has greater fiduciary obligations to the debtor than a purchaser does to a seller. See, e.g., Marine Midland Bank v. CMR Indus., 159 A.D.2d 94, 559 N.Y.S.2d 892, 897 (1st Dep’t 1990) (“Under both the common law and the Uniform Commercial Code, a secured party has a duty to exercise reasonable care in the custody and preservation of collateral in its possession.” (citation omitted)). Accordingly, if a secured loan lacks the indicia of a fiduciary relationship necessary for a finding of entrustment, Exec. Secs. Corp., 556 F.2d at 99, then a purchase/sale certainly cannot meet the entrustment requirement. Thus, no matter how the Agreements are characterized, the Banks are not entitled to “customer” status under SIPA. See also In re ESM Government Secs., Inc., 812 F.2d 1374, 1376-77 (11th Cir.1987) (relying on Exec. Secs. Corp. to conclude that a standard repurchase agreement did not entitle the claimant to “customer” status under an analogous provision of the Bankruptcy Code). The Bankruptcy Decision is therefore affirmed. The Banks make essentially three arguments, none of which is persuasive. In their first and principal argument, the Banks argue that Baroff held that entrustment exists when the claimant conveys the cash or securities to the broker-dealer for “some purpose connected with participation in the securities markets.” Baroff, 497 F.2d at 283. The Banks then assert that they entered the repurchase agreements with the purpose of acquiring positions in certain securities markets. In making this argument, the Banks read the fiduciary relationship requirement out of entrustment. The argument fails on" }, { "docid": "7296941", "title": "", "text": "this may have been debtor’s intention, this case is distinguishable from the cases relied upon by the trustee to support his argument that claimants loaned money to debtor. See, SEC v. F.O. Baroff Co., 497 F.2d 280 (2nd Cir.1974); SIPC v. Executive Secur. Corp., 556 F.2d 98 (2nd Cir.1977); In re Brittenum & Associates, Inc., 82 B.R. 64 (Bankr.E.D.Ark.1987). Consequently, the Court disagrees with the Trustee’s determination that the deposit account transactions were loans. DEPOSIT ACCOUNT DOCUMENT Even though the Court has determined that the deposit account transaction is not a loan this does not end the inquiry. The Court finds that the deposit account document is a security. Section 78111 (14) of SIPA defines security as: The term “Security” means- any note, stock, treasury stock, bond, debenture, evidence of indebtedness, any collateral trust certificate, preorganization certificate or subscription, transferable share, voting trust certificate, certificate of deposit, certificate of deposit for a security, any investment contract ... (if such investment contract or interest is the subject of a registration statement with the Commission pursuant to the provisions of the Securities Act of 1933 [15 U.S.C. 77a et seq. ]).... The Supreme Court of the United States defined security in Tcherepnin v. Knight, 389 U.S. 332, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967). The Court said “[a]s used in both the 1933 and 1934 [securities] Act security ‘embodies a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits’ ” and that in defining securities “form should be disregarded for substance.” Id. at 338, 88 S.Ct. at 554. This definition must be applied to the deposit account transaction. Each claimant testified that they expected debtor would profit from the deposit account transaction by investing the funds at a higher interest rate than that which each claimant was to receive, thus making a commission or profit on the transaction. Thus the transaction is consistent with issuing a security. The Fifth Circuit defined security and specifically evidence" }, { "docid": "7296948", "title": "", "text": "the trustee, that in these cases the courts denied customer protection. But the Court finds these cases are distinguishable from this case because claimants in the cited cases authorized their broker to take some action which the broker failed to take or took action that was not in claimant’s best interest, whereas here, debtor used claimants’ funds for an unauthorized transaction. Thus the difference in the cases cited by the trustee and this case is the mere failure to act versus acting in an unauthorized manner in issuing an unauthorized security. Courts that have addressed whether SIPA claimants qualify as customers have reserved customer protection for investors as opposed to lenders or persons acting in their individual capacity. SEC v. F.O. Baroff, 497 F.2d 280 (2nd Cir.1974); (customer status reserved for public customer of broker); In re Brentwood Secur. Inc., 925 F.2d 325 (9th Cir.1991) (entrusting funds to broker in individual capacity precludes customer claim); SEC v. First Security of Chicago, 507 F.2d 417 (7th Cir.1974) (payment to debtor’s principal in individual capacity precluded customer claim); In re Stalvey & Associates, Inc., 750 F.2d 464 (5th Cir.1985) (broker-dealers access to bonds sufficient to create customer status however pledge as collateral precluded claim); In re Waddell Jenmar Secur. Inc., 126 B.R. 935 (Bankr.E.D.N.C.1991) affirmed 991 F.2d 792 (4th Cir.1993) (making funds available to broker with the intent that broker purchase securities created customer claim); In the Matter of Investors Secur. Corp., 6 B.R. 420 (Bankr.W.D.Pa.1980) (entrustment of funds determinative of customer status not broker’s subsequent misuse of funds). The most important factor in determining customer status is whether claimant entrusted money or securities to the broker. Id. Similarly, in the context of 11 U.S.C. § 741, the Eleventh Circuit held that to establish customer status claimants must first show entrustment of funds to the broker for the purpose of effecting securities transactions and second, that the agreements concerning the transaction contain indicia of the usual fiduciary relationship between a broker and its public customer. In re ESM Government Secur. Inc., 812 F.2d 1374 (11th Cir.1987). The Court relied on SIPA cases" }, { "docid": "12412120", "title": "", "text": "SEC disagreed as to the interpretation of SIPA section 78fff-3(a)(1) with regard to whether claimants had claims for cash or for securities, the court found, in a lengthy discourse, that the SEC was entitled to a degree of deference, a deliberative factor not lost on the Court. See New Times I, 371 F.3d at 82-83. . As discussed supra at Factual History, section II, part C, “Fidelity Spartan U.S. Treasury Money Market Fund,” was reflected on customer account statements at times when Fidelity Brokerage Services LLC was not of fering participation in any such fund for investment. . The Court is also persuaded by the reasoning in Focht v. Athen (In re Old Naples Secs., Inc.), 311 B.R. 607 (M.D.Fla.2002). In re Old Naples was a SIPA liquidation involving a Ponzi scheme in which the court adopted the Net Investment Method in satisfying claims for cash: According to the Trustee, participants in a Ponzi scheme such as that involved here are entitled only to receive their net loss, or the amount invested less any payments received. [PJermitting claimants to recover not only their initial capital investment but also the phony “interest” payments they received and rolled into another transaction is illogical. No one disputes that the interest payments were not in fact interest at all, but were merely portions of other victims’ capital investments. If the Court were to agree with the Athens claimants, the fund would likely end up paying out more money than was invested in Zimmerman’s Ponzi scheme. This result is not consistent with the goals of SIPA, which does not purport to make all victimized investors whole but only to partially ameliorate the losses of certain classes of investors. In re Old Naples, 311 B.R. at 616-17. Some of the Objecting Claimants attempt to distinguish Old Naples on the grounds that the claims in that case were for cash ($100,000 SIPC advance), and not for securities ($500,-000 SIPC advance). This purported distinction, however, was irrelevant to the Net Equity holding. Whether the claims were for cash or securities, the fact remains that the Old Naples court" }, { "docid": "11602658", "title": "", "text": "appropriate the property for his own use.... These characteristics represent the measure of the paradigmatic fiduciary relationship. United States v. Chestman, 947 F.2d 551, 568-69 (2d Cir.1991) (en banc) (citation omitted). A fiduciary relationship was found lacking in Baroff when the claimant conveyed securities to a broker-dealer but the securities “had nothing at all to do with conventional investment, trading or participation in the securities market,” “[t]here was no actual or likely use of the shares as collateral for margin purchases by [the claimant] of other securities,” “the proceeds [were not] used to facilitate securities trading by [the claimant],” “there was no reasonable expectation that the shares would be sold for [the claimant’s] account in the near future,” “the proceeds of the [transaction] were used ... by [the broker-dealer] without restriction in its day-to-day business,” and when the transaction “had no connection with [the claimant’s] trading activity in the securities market.” Baroff, 497 F.2d at 284. SIPA places the burden of proof to establish “customer” status on the claimant by requiring that a debtor’s obligations to its customers be “ascertainable from the books and records of the debtor” or “otherwise established to the satisfaction of the trustee.” 15 U.S.C. § 78fff — 2(b); see also In re Primeline Secs. Corp., 295 F.3d 1100, 1107 (10th Cir.2002) (stating that the burden of proof lies on the claimant to prove “customer” status under SIPA). The Banks do not qualify as “customers” under SIPA. The Banks have not met their burden of demonstrating the existence of a fiduciary relationship between the Banks and LBI. Fundamentally, the two-sided nature of the Agreements belies any inference of a fiduciary relationship. A fiduciary relationship between a customer and a broker-dealer ordinarily arises because the customer makes a transfer of cash or securities to the broker-dealer. With that transfer, the customer becomes vulnerable and will suffer a loss if the broker-dealer appropriates the money or becomes insolvent. The customer thus places trust and confidence in the broker-dealer to properly manage his cash or securities, giving rise to a fiduciary duty for the broker-dealer to act loyally for" }, { "docid": "7296950", "title": "", "text": "in denying customer status in ESM. Thus the standard announced in ESM for establishing customer status is applicable in this SIPA case. This Court has previously held that claimants entrusted funds to debtor for the purpose of purchasing CDs. Certificates of Deposit are securities. 15 U.S.C. § 78lll (14). Thus claimants have satisfied the first requirement for customer status: entrustment of funds for the purpose of effecting securities transactions. The second element required by ESM is that the securities transaction contain “indi-cia of the usual fiduciary relationship between a broker and his public customer, not the characteristics of, at most, an ordinary debtor-creditor relationship.” Id. at 1376 citing SEC v. F.O. Baroff, 497 F.2d 280, 284 (2nd Cir.1974). Had claimants loaned money to debtor as the trustee argues or knowingly purchased or ratified the purchase of the evidence of indebtedness, they would have only an ordinary debtor-creditor relationship with debtor. However, the circumstances in this case convince the Court that claimants entrusted money to debtor for the purpose of purchasing securities and that claimants were public customers attempting to invest through debtor thereby creating the usual fiduciary relationship between a stockbroker and its public customer. Accordingly, claimants are customers of debtor and have claims for cash. EVIDENCE OF INDEBTEDNESS The Trustee argues that even if claimants are customers the evidence of indebtedness is all that claimants are entitled to, receive pursuant to SIPA’s remedial scheme. The Trustee cites SIPC v. Associated Underwriters, 423 F.Supp. 168 (D.Utah 1975) and In re Atkeison, 446 F.Supp. 844 (M.D.Tenn.1977) in support of his argument. In Associated Underwriters, the Court found that SIPA contemplates the return of the customer property held by the broker or the property the broker should be holding for the customer’s account. The Associated Court found that the contract between debtor and claimants allowed for debtor’s endorsement of the investment contracts purchased by claimants and that claimants’ belief that their contract required the endorsement by a NYSE firm was mistaken. The fact that the investment contracts were worthless did not alter the fact that claimants received what they had bargained for" }, { "docid": "11602664", "title": "", "text": "finding of entrustment, Exec. Secs. Corp., 556 F.2d at 99, then a purchase/sale certainly cannot meet the entrustment requirement. Thus, no matter how the Agreements are characterized, the Banks are not entitled to “customer” status under SIPA. See also In re ESM Government Secs., Inc., 812 F.2d 1374, 1376-77 (11th Cir.1987) (relying on Exec. Secs. Corp. to conclude that a standard repurchase agreement did not entitle the claimant to “customer” status under an analogous provision of the Bankruptcy Code). The Bankruptcy Decision is therefore affirmed. The Banks make essentially three arguments, none of which is persuasive. In their first and principal argument, the Banks argue that Baroff held that entrustment exists when the claimant conveys the cash or securities to the broker-dealer for “some purpose connected with participation in the securities markets.” Baroff, 497 F.2d at 283. The Banks then assert that they entered the repurchase agreements with the purpose of acquiring positions in certain securities markets. In making this argument, the Banks read the fiduciary relationship requirement out of entrustment. The argument fails on a number of accounts. First, an entrustment requires a fiduciary relationship. See Chestman, 947 F.2d at 568-69. Furthermore, in making this argument, the Banks ignore the full context of the words in Baroff on which they rely. According to Baroff, Congress intended for SIPA to protect the “public customer who has entrusted securities to a broker for some purpose connected with participation in the securities markets.” 497 F.2d at 283 (emphasis added). Thus, the element of “entrustment” is distinct from the “purpose” of the engagement. The former speaks to the nature of the relationship between the claimant and the broker-deal er, whereas the latter speaks to the purpose of the transaction. The myopic focus on the purpose of the transaction, to the exclusion of the nature of the relationship, is at odds with Second Circuit precedent, which has consistently emphasized the importance of a fiduciary relationship between the claimant and broker-dealer in demonstrating entrustment. See, e.g., New Times, 463 F.3d at 128; Exec. Secs. Corp., 556 F.2d at 99; Secs. Investor Prot. Corp. v. Morgan," }, { "docid": "16247657", "title": "", "text": "415, 95 S.Ct. 1733, 44 L.Ed.2d 263 (1975). Treatment of the BLMIS claimants as customers with claims for securities and calculating “net equity” based on the Net Investment Method effectuates these purposes. As the bankruptcy court observed, “[a]ny dollar paid to reimburse a fictitious profit is a dollar no longer available to pay claims for money actually invested. If the Last Statement Method were adopted,” those claimants who have withdrawn funds from their BLMIS accounts that exceed their initial investments “would receive more favorable treatment by profiting from the principal investments of [those claimants who have withdrawn less money than they deposited], yielding an inequitable result.” In re Bernard L. Madoff, 424 B.R. at 141. The statutory definition of “net equity” does not require the Trustee to aggravate the injuries caused by Madoffs fraud. Use of the Last Statement Method in this case would have the absurd effect of treating fictitious and arbitrarily assigned paper profits as real and would give legal effect to Madoffs machinations. I The threshold issues are whether the BLMIS claimants are “customers” within the meaning of SIPA and, if so, whether they are customers with claims for securities or customers with claims for cash. If the objecting BLMIS claimants are not “customers,” 15 U.S.C. § 78KZ(2)(A), they are not entitled to the protection of SIPA at all, see Sec. Inv. Prat. Corp. v. Pepperdine Univ. (In re Brentwood Sec., Inc.), 925 F.2d 325, 327 (9th Cir.1991). Under SIPA, “[t]he term ‘customer’ includes ... any person who has deposited cash with the debtor for the purpose of purchasing securities.” 15 U.S.C. § 78lll(2)(B)(i); see also Tew v: Res. Mgmt. (In re ESM Gov’t Sec., Inc.), 812 F.2d 1374, 1376 (11th Cir.1987) (observing “that it is the act of entrusting the cash to the debtor for the purpose of effecting securities transactions that triggers the customer status provisions” (emphasis omitted)). It also includes: ... [a person] who has a claim on account of securities received, acquired, or held by the debtor in the ordinary course of business as a broker or dealer from or for the securities" }, { "docid": "12412119", "title": "", "text": "S.D.N.Y.1999), aff'd, 263 B.R. 406 (S.D.N.Y. 2001); see also In re Grafton Partners, 321 B.R. 527, 539 (9th Cir. B.A.P. 2005) (“The few decisions that involve outright illegality or transparent manipulation reject [section] 546(e) protection.”); Wider v. Wootton, 907 F.2d 570, 573 (5th Cir.1990) (\"To apply the stockbroker defense to shield the payments Cohen made to Wider would lend judicial support to 'Ponzi' schemes by rewarding early investors at the expense of later victims.”) (internal quotations and citations omitted). In any event, the safe harbor provision explicitly excepts from its protection actual fraudulent transfers avoidable under section 548(a)(1)(A) of the Code. See 11 U.S.C. § 546(e). . Certain investors were also induced to invest in fraudulent promissory notes. Id. at 71. However, the treatment of those investors is irrelevant for purposes of this decision. . These rules apply to determine whether a securities transaction gives rise to a \"claim for cash” or a \"claim for securities” on the filing date of a SIPA liquidation proceeding. See 17 C.F.R. §§ 300.500-300.503. . When SIPC and the SEC disagreed as to the interpretation of SIPA section 78fff-3(a)(1) with regard to whether claimants had claims for cash or for securities, the court found, in a lengthy discourse, that the SEC was entitled to a degree of deference, a deliberative factor not lost on the Court. See New Times I, 371 F.3d at 82-83. . As discussed supra at Factual History, section II, part C, “Fidelity Spartan U.S. Treasury Money Market Fund,” was reflected on customer account statements at times when Fidelity Brokerage Services LLC was not of fering participation in any such fund for investment. . The Court is also persuaded by the reasoning in Focht v. Athen (In re Old Naples Secs., Inc.), 311 B.R. 607 (M.D.Fla.2002). In re Old Naples was a SIPA liquidation involving a Ponzi scheme in which the court adopted the Net Investment Method in satisfying claims for cash: According to the Trustee, participants in a Ponzi scheme such as that involved here are entitled only to receive their net loss, or the amount invested less any payments" }, { "docid": "12412085", "title": "", "text": "Deposit Insurance Act, as “SIPA and FDIA are independent statutory schemes, enacted to serve the unique needs of the banking and securities industries, respectively”). In addition, the IRS treatment of Madoff claimants is temporal, rather than part of an established statutory scheme. See, e.g., Post-Madoff Rev. Proc. 2009-20, 2009-14 I.R.B. 749 (established Mar. 17, 2009 to address, in relevant part, the tax treatment of losses from criminally fraudulent investment arrangements that take the form of Ponzi schemes). IV. THE HOLDING IN NEW TIMES I SUPPORTS THE TRUSTEE’S NET INVESTMENT METHOD Even though the mechanics of Ponzi schemes are essentially the same, with later investors’ money used to pay earlier investors, underlying factual disparities make the definition of Net Equity susceptible to differing formulations. The Second Circuit has addressed this issue in New Times I. Not surprisingly, both the Trustee and Objecting Claimants cite New Times I as support for their respective positions. The New Times I case was a SIPA liquidation involving a Ponzi scheme in which investors were fraudulently induced to purchase securities through New Times Securities Services, Inc. and New Age Financial Services, Inc. (collectively, the “Debtors”). The securities intended to be purchased included (1) nonexistent money market funds and (2) shares of bona fide mutual funds. New Times I, 371 F.3d at 71. Rather than invested, the customer funds advanced were misappropriated by the Debtors and used to pay fictitious profits on prior investments. Id. at 71-72, 72 n. 2. To facilitate the fraud, the Debtors generated bogus confirmations and fake monthly account statements that reflected fictitious profits and nonexistent securities positions. Id. at 71, 74. In the course of the liquidation, the SIPA trustee determined that customers who were fraudulently induced to invest in bogus money market funds (the “Fake Securities Claimants”) were entitled to claims for cash, and thus eligible for a SIPC advance of up to only $100,000. Id. at 71, 74. Moreover, the SIPA trustee concluded that the value of their claims was the amount principally invested less any withdrawals or redemptions. Id. Thus, fictitious profits shown on their account statements as interest" }, { "docid": "11602654", "title": "", "text": "as principal or agent) who has [1] a claim on account of securities received, acquired, or held by the debtor in the ordinary course of its business as a broker or dealer [2] from or for the securities accounts of such person [3] for safekeeping, with a view to sale, to cover consummated sales, pursuant to purchases, as collateral security, or for purposes of effecting transfer. The term ‘customer’ includes any person who has a claim against the debtor arising out of sales or conversions of such securities, and any person who has deposited cash with the debtor for the purpose of purchasing securities, but does not include— (A) any person to the extent that the claim of such person arises out of transactions with a foreign subsidiary of a member of SIPC; or (B) any person to the extent that such person has a claim for cash or securities which by contract, agreement, or understanding, or by operation of law, is part of the capital of the debtor, or is subordinated to the claims of any or all creditors of the debtor, notwithstanding that some ground exists for declaring such contract, agreement, or understanding void or voidable in a suit between the claimant and the debtor. 15 U.S.C. § 78lll(2) (2006) (emphasis added). In Baroff, the seminal case regarding the SIPA definition of “customer,” the Second Circuit rejected a “literal” reading of the definition as failing “to accommodate the patent legislative purposes.” 497 F.2d at 282. Because Congress had intended SIPA to protect customers who had left cash and securities deposited in their brokerage accounts when the broker-dealer went bankrupt, see Barbour, 421 U.S. at 415, 95 S.Ct. 1733, the Baroff court read into the SIPA customer definition an en-trustment requirement, observing that Congress “stressed protection to ... the public customer who has entrusted securities to a broker for some purpose connected with participation in the securities markets.” Baroff, 497 F.2d at 283 (emphasis added). The Second Circuit has recently reiterated that “the critical aspect of the ‘customer’ definition is the entrustment of cash or securities to the broker-dealer" }, { "docid": "16247658", "title": "", "text": "are “customers” within the meaning of SIPA and, if so, whether they are customers with claims for securities or customers with claims for cash. If the objecting BLMIS claimants are not “customers,” 15 U.S.C. § 78KZ(2)(A), they are not entitled to the protection of SIPA at all, see Sec. Inv. Prat. Corp. v. Pepperdine Univ. (In re Brentwood Sec., Inc.), 925 F.2d 325, 327 (9th Cir.1991). Under SIPA, “[t]he term ‘customer’ includes ... any person who has deposited cash with the debtor for the purpose of purchasing securities.” 15 U.S.C. § 78lll(2)(B)(i); see also Tew v: Res. Mgmt. (In re ESM Gov’t Sec., Inc.), 812 F.2d 1374, 1376 (11th Cir.1987) (observing “that it is the act of entrusting the cash to the debtor for the purpose of effecting securities transactions that triggers the customer status provisions” (emphasis omitted)). It also includes: ... [a person] who has a claim on account of securities received, acquired, or held by the debtor in the ordinary course of business as a broker or dealer from or for the securities accounts of such person for safekeeping, with a view to sale, to cover consummated sales, pursuant to purchases, as collateral, security, or for purposes of effecting transfer. 15 U.S.C. § 78lll(2)(A). We conclude that the BLMIS claimants are customers with claims for securities within the meaning of SIPA. While SIPA does not — and cannot — protect an investor against all losses, it “does ... protect claimants who attempt to invest through their brokerage firm but are defrauded by dishonest brokers.” Ahammed v. Sec. Inv. Prot. Corp. (In re Primeline Sec. Corp.), 295 F.3d 1100, 1107 (10th Cir.2002). SIPA provides this protection by ensuring that claimants who deposited cash with a broker “for the purpose of purchasing securities,” 15 U.S.C. § 78lll(2)(B)(i), are treated as customers with claims for securities. This is so because the “critical aspect of the ‘customer’ definition is the entrustment of cash or securities to the broker-dealer for the purposes of trading securities. ” Appleton v. First Nat’l Bank of Ohio, 62 F.3d 791, 801 (6th Cir.1995) (emphasis added). The legislative" } ]

[ { "docid": "22234908", "title": "", "text": "as an alien seaman., The obligation of the master to return him did not, as contended, confer the right to remain here permanently. If we are to disregard petitioner’s status ,as an alien seaman, the law required that he should have submitted himself to inspection, should have produced an immigration visa, and paid a head tax, if as an immigrant he desired to apply for citizenship. He did none of these things, and in this aspect remained here in violation of law. The suggestion is made that since the relator could not have been deported after the expiration of three years from his original entry in 1923, his status when discharged as one of the crew of the America in 1929 was that of an “ immigrant previously lawfully admitted to the United States, who is returning from a temporary visit abroad,” and thus he was a non-quota immigrant within § 4 of the act of 1924. But he was not lawfully admitted for permanent residence in 1923, and his stay here can not be converted into such lawful residence by the mere fact that the then applicable statute limited the time within which deportation proceedings could be had. United States ex rel. Georgas v. Day, 43 F. (2d) 917. The judgment is Affirmed. Sec. 32 of the Act of February 5, 1917, c. 29, 39 Stat. 874, 895, then in force, but since repealed by the Immigration Act of 1924, provided: “ That no alien excluded from admission into the United States by any law . . . and employed on board any vessel arriving in the United States from any foreign port or place, shall be permitted to land in the United States, except temporarily for medical treatment, or pursuant to regulations prescribed by the Secretary of Labor providing for the ultimate removal or deportation of such alien from the United States, . . .” Sec. 34 of the Act of February 5, 1917, c. 29, 39 Stat. 874, 896: “ That any alien seaman who shall land in a port of the United States contrary to the" } ]

[ { "docid": "1130849", "title": "", "text": "of “entry” even more by holding that an alien does not make an “entry” from a foreign country if his arrival in the foreign country was unintentional. See Barber v. Gonzales, 74 S.Ct. 822, note 2. This petitioner did not conscious-' ly nor intentionally depart United States' jurisdiction. He had no intention to'go' to a foreign country. He had no part in fixing or changing the fishing location., He simply went out for a fishing trip in the Florida Keys, and woke up drunk the next morning in English waters about forty miles off the Florida Coast, from which he immediately returned without having left the fishing craft or setting foot on foreign soil. Anchoring the vessel off Bimini during the night was brought about by purely fortuitous circumstances, mainly a change in the weather, in which the petitioner had no part. The facts here do not constitute an “entry” as contemplated by the 1917 Act. In United States ex rel. Claussen v. Day, 279 U.S. 398, 49 S.Ct. 354, 73 L.Ed. 758; United States ex rel. Stapf v. Corsi, 287 U.S. 129, 53 S.Ct. 40, 77 L.Ed. 215; United States ex rel. Volpe v. Smith, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298, there is language which, taken from its context, indicates that every return of an alien to the United States from a foreign country constitutes an “entry” within the meaning of sec. 19(a) of the Act of 1917. But those were cases decided on different facts, in which the alien clearly expected or planned to leave the United States and enter a foreign port or place, from which he later re-entered the United States. See — Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17. He was not, as here, taken to a foreign jurisdiction through inadvertence. The order of January 7, 1900, authorizing petitioner’s permanent residence in the United States as an alien was still in effect when he returned to Miami on October 7, 1950. ,/e have shown that his return from English waters, just off the coast of Florida, was" }, { "docid": "18059659", "title": "", "text": "ex rel. Doukas v. Wiley, 160 F.2d at pages 94-95, supra, note 6; Keitaro Karamoto v. Burnett, 9 Cir., 1933, 68 F.2d 278, 279; Kjar v. Doak, 61 F.2d at page 567, supra, note 6; Ex Parte Shigenari Mayemura, supra, note 6; Ghiggeri v. Nagle, 19 F.2d at page 876, supra, note 6; Chan Wong v. Nagle, 9 Cir., 1927, 17 F.2d 987; Wong Back Sue v. Connell, 9 Cir. 1916, 233 F. 659, 663; Jung Sam v. Haff, 9 Cir., 1940, 116 F.2d 384. . Delgadillo v. Carmichael, 1947, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17; United States ex rel. Claussen v. Day, 1929, 279 U.S. 398, 49 S.Ct. 354, 73 L.Ed. 758; United States ex rel. Stapf v. Corsi, 1932, 287 U.S. 129, 53 S.Ct. 40, 77 L.Ed. 215; Carmichael v. Delaney, 9 Cir., 1948, 170 F.2d 239; Di Pasquale v. Karnuth, 2 Cir., 1947, 158 F.2d 878. . See also, United States ex rel. Claussen v. Day, supra, note 8; and Lewis v. Frick, 1914, 233 U.S. 291, 34 S.Ct. 488, 58 L.Ed. 967. . Chan Nom Gee v. United States, 9 Cir., 1932, 57 F.2d 646, 649; Ex Parte Kishimoto, 9 Cir., 1929, 32 F.2d 991, 992; Ghiggeri v. Nagle, 9 Cir., 1927, 19 F.2d 875, 876; Chan Wong v. Nagle, 9 Cir., 1927, 17 F.2d 987; see also, Plane v. Carr, 9 Cir., 1927, 19 F.2d 470 and Wong Back Sue v. Connell, supra, note 7. On this point see also, United States ex rel. Bilokumsky v. Tod, and United States ex rel. Vajtauer v. Commissioner, supra, note 6; and Joong Sui Noon v. United States, 8 Cir., 1935, 76 F.2d 249 and authorities cited at p. 250; Moncado v. Ramsey, supra, note 6; United States ex rel. Doukas v. Wiley, supra, note 6. . 4 Wigmore on Evidence (3rd Ed.) § 1048 et seq.; Milton v. United States, 71 App.D.C. 394, 110 F.2d 556, 560, “Admissions have probative value not because they have been subjected to cross-examination and therefore satisfy the hearsay rule, but because they are statements by a party opponent," }, { "docid": "13802597", "title": "", "text": "later goes in transit from one part of the United States to another through foreign contiguous territory.” The alien, having been lawfully admitted, was not subject to deportation unless his practically uninterrupted journey from Detroit to Windsor and back constituted an entry within the meaning of the immigration laws. Admittedly, the last entry rather than the original entry is to be considered in computing the time within which the crime must have been committed. United States ex rel. Volpe v. Smith, 289 U. S. 422, 53 S. Ct. 665, 77 L. Ed. 1298; United States ex rel. Claussen v. Day, 279 U. S. 398, 49 S. Ct. 354, 73 L. Ed. 758; United States ex rel. Stapf v. Corsi, 287 U. S. 129, 53 S. Ct. 40, 77 L. Ed. 215; Lewis v. Frick, 233 U. S. 291, 34 S. Ct. 488, 58 L. Ed. 967. In the latter ease, while it does not appear how long the alien stayed in Canada, it was said (page 297 of 233 U. S., 34 S. Ct. 488, 491) that the departure from the United States even for a brief space of time subjects the alien to the operation of the immigration laws relating to exclusion and deportation of aliens regardless of previous residence or domicile in this country. In my opinion it is carrying the application of the doctrine of the above eases too far to regard as an immigrant one who is lawfully within the country and who goes into foreign contiguous territory during the course of a practically continuous journey originating and ending at the same place within the United States. He does not, in my opinion, come within the statute, which defines an “immigrant” as an alien departing from any place outside of the United States destined for the United States; and it is equally absurd to hold that this alien’s status has been affected by the fact that he remained in Windsor some 25 minutes while his uncle transacted his business. It is said in United States ex rel. Claussen v. Day, supra: “The word ‘entry’by its own" }, { "docid": "21422907", "title": "", "text": "are identical to the Blake challenges and are rejected for the same reasons. . The terms \"excludable” and \"inadmissible” are synonymous and will be used interchangeably in this opinion. . In addition to the substantive differences, prior to 1997, the immigration laws provided for separate exclusion and deportation proceedings. The procedural dissimilarities were largely eliminated by. the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, Div. C„ Title III, Subtitle A, 110 Stat. 3009-575 et seq., and replaced by a unified “removal” process under INA § 240, 8 U.S.C. § 1229a. The homogenization is not complete, however, and certain procedural niceties continue to depend on whether an alien is seeking admission or is charged with deportability. See, e.g., INA § 240(c), 8 U.S.C. § 1229a(c) (describing differences in burden of proof). The substantive distinctions between inadmissibility and deportability remain. INA §§ 212(a), 237(a), 8 U.S.C. § 1182(a), 1227(a). . This is a simplification. Whether an alien who gains admission at one time and subsequently travels abroad must face the same barriers to (re)entry as a first-time visitor is a complex matter. In the early immigration cases, if a previously admitted alien \"departed from the country, even for a brief space of time[,] ... he subjected himself to ... exclusion” upon his return. Lewis v. Frick, 233 U.S. 291, 297, 34 S.Ct. 488, 58 L.Ed. 967 (1914); see also, e.g., United States ex rel. Volpe v. Smith, 289 U.S. 422, 425, 53 S.Ct. 665, 77 L.Ed. 1298 (1933); Dollar S.S. Line v. Hyde, 23 F.2d 910, 911 (9th Cir. 1928). Over time, however, some traveling long-term resident aliens were effectively exempted from the grounds of excludability. The 1952 Act provided that a long-term LPR whose departure from the United States was unintentional or involuntary would not be deemed to be seeking entry upon his return. 1952 Act § 101(a)(13), 66 Stat. 167. In Rosenberg v. Fleuti, 374 U.S. 449, 462-63, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963), the Supreme Court held that an LPR returning from an innocent, casual, and brief overseas excursion not intended to" }, { "docid": "5613152", "title": "", "text": "the route of a passenger train on a journey from Buffalo to Detroit. In the Delgadillo case the “entry” occurred when the alien, a member of the crew of an American vessel, was plunged into the sea as a result of the torpedoing of his ship, then rescued and taken care of in Cuba for a short time before returning to the United States. In each case, but- for the fortuitous departure and “re-entry”, the alien would not have been subject to deportation. In both cases the courts, with good reason, concluded that it would be a capricious and unconscionable application of the statute to hold the alien deportable under these extraordinary circumstances. By way of elaboration we might well quote the Supreme Court in the Delgadillo case, 332 U.S. at page 391, 68 S.Ct. at page 12, where it is said: “We might as well hold that if he had been kidnapped and taken to Cuba, he made a statutory ‘entry’ on his voluntary return. Respect for law does not thrive on captious interpretations.” This illustrates how the Supreme Court met exceptional circumstances by applying exceptional treatment to avoid an obvious injustice. The majority also relies upon U. S. ex rel. Volpe v. Smith, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298, and United States ex rel. Schlimmgen v. Jordan, 7 Cir., 164 F.2d 633. In those cases it was held that the coming of an alien into the United States for the second time is an “entry” within the meaning of a statute subjecting aliens to deportation for crimes committed “prior to entry.” Why these two cases are thought to support the majority view on the “entry” question here is not clear to me. My bewilderment increases when I read the language of the Supreme Court in support of its holding in the Volpe case: “An examination of the Immigration Act of 1917, we think, reveals nothing sufficient to indicate that Congress did not intend the word ‘entry’ in § 19 should have its ordinary meaning.” (Emphasis mine.) 289 U.S. at page 425, 53 S.Ct. at page" }, { "docid": "13802596", "title": "", "text": "tkro'ugh Canadian territory. In 1930, he drove with his uncle to Windsor, on the Canadian side of the Detroit river, in order that he (the uncle) might see one of the men with whom he worked. They were there about 25 minutes when they returned to Detroit. On his return the alien was stopped at the border, but, upon showing his automobile license and birth certificate, he was allowed to enter without objection. The decision of the immigration authorities seems to be based not only upon this trip with the uncle into Canada, but also on the fact that he crossed Canadian territory in driving from Boston to Detroit and back. As to the latter ground, obviously the Department disregarded the express provisions of the Immigration Act of 1924 (Act May 26, 1924, e. 190, § 3, 8 USCA § 203 (4), which defines an “immigrant” to be one who departs from a place outside of the United States destined for the United States except “(4) an alien lawfully admitted .to the United States who later goes in transit from one part of the United States to another through foreign contiguous territory.” The alien, having been lawfully admitted, was not subject to deportation unless his practically uninterrupted journey from Detroit to Windsor and back constituted an entry within the meaning of the immigration laws. Admittedly, the last entry rather than the original entry is to be considered in computing the time within which the crime must have been committed. United States ex rel. Volpe v. Smith, 289 U. S. 422, 53 S. Ct. 665, 77 L. Ed. 1298; United States ex rel. Claussen v. Day, 279 U. S. 398, 49 S. Ct. 354, 73 L. Ed. 758; United States ex rel. Stapf v. Corsi, 287 U. S. 129, 53 S. Ct. 40, 77 L. Ed. 215; Lewis v. Frick, 233 U. S. 291, 34 S. Ct. 488, 58 L. Ed. 967. In the latter ease, while it does not appear how long the alien stayed in Canada, it was said (page 297 of 233 U. S., 34 S. Ct. 488," }, { "docid": "1130850", "title": "", "text": "ex rel. Stapf v. Corsi, 287 U.S. 129, 53 S.Ct. 40, 77 L.Ed. 215; United States ex rel. Volpe v. Smith, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298, there is language which, taken from its context, indicates that every return of an alien to the United States from a foreign country constitutes an “entry” within the meaning of sec. 19(a) of the Act of 1917. But those were cases decided on different facts, in which the alien clearly expected or planned to leave the United States and enter a foreign port or place, from which he later re-entered the United States. See — Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17. He was not, as here, taken to a foreign jurisdiction through inadvertence. The order of January 7, 1900, authorizing petitioner’s permanent residence in the United States as an alien was still in effect when he returned to Miami on October 7, 1950. ,/e have shown that his return from English waters, just off the coast of Florida, was not an “entry” within the meaning of the 1917 Act. While highly reprehensible, his false statement on October 7, 1950 that he was a citizen of the United States is, for the purpose here under consideration, immaterial. That alone will not support the deportation order. Affirmed. . Section 19 of the Act of February 5, 1917, provides, inter alia, ■ that “at any time within three years after entry, any alien * * * who enters without inspection, shall, upon the warrant of the Attorney General, be taken into custody and deported”. Now 8 U.S.C.A. § 1251." }, { "docid": "4432280", "title": "", "text": "332 U.S. at 391, 68 S.Ct. at 12. In Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S.Ct. 472, 97 L.Ed. 576 (1953), the Supreme Court held an alien lawfully admitted to permanent residence was not deprived of the rights of a resident upon his return to the United States from a voyage as a merchant seaman when he had stopped at but remained aboard the vessel at foreign ports of call. The Court found the alien entitled, under the due process clause of the Fifth Amendment, to a hearing on his objections to deportation, a right he would not have enjoyed without his resident status. In a 5-4 decision the Supreme Court in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953), held that an alien who had traveled abroad and remained in Hungary for nineteen months could be treated as an “entering alien,” and be detained on Ellis Island without a hearing on his threatened exclusion. 345 U.S. at 213, 73 S.Ct. 625. Kwong Hai Chew was distinguished by the majority on the grounds that Kwong’s maritime service was continuous residence for naturalization purposes and that Kwong was pursuing his vocation for four months aboard an American ship. 345 U.S. at 213-214, 73 S.Ct. 625. Mezei did not affect the holdings in Delgadillo, Di Pasquale, or other cases following them, e. g., Carmichael v. Delaney, 170 F.2d 239 (9th Cir. 1948)' (no “entry” occurred after ship to which resident alien was assigned stopped at many ports and alien debarked, because of ship movements pursuant to Navy orders) ; Yukio Chai v. Bonham, 165 F.2d 207 (9th Cir. 1947) (no “entry” occurred after ship carrying resident alien back from seasonal cannery work in Alaska made unscheduled stop in Vancouver, B. C.). In Savoretti v. United States ex rel. Pincus, 214 F.2d 314 (5th Cir. 1954), decided after Mezei but relying on Delgadillo and Di Pasquale, a resident alien was held not to have made a new entry after the fishing boat on which he was sleeping (after some serious drinking)" }, { "docid": "22834383", "title": "", "text": "U. S. 388; United States ex rel. Claussen v. Day, 279 U. S. 398; Di Pasquale v. Karnuth, 158 F. 2d 878; Del Guercio v. Gabot, 161 F. 2d 559. Cf. United States ex rel. Volpe v. Smith, 289 U. S. 422, 425. In United States ex rel. Claussen v. Day, supra, at 401, this Court stated the applicable rule: “The word 'entry’ [in § 19 (a)] by its own force implies a coming from outside. The context shows that in order that there be an entry within the meaning of the Act there must be an arrival from some foreign port or place. There is no such entry where one goes to sea on board an American vessel from a port of the United States and returns to the same or another port of this country without having been in any foreign port or place.” (Italics added.) See also United States ex rel. Stapf v. Corsi, 287 U. S. 129, 132; Carmichael v. Delaney, 170 F. 2d 239, 242-243. This concept of “entry” was codified by Congress in the Immigration and Nationality Act of 1952. At the time respondent came to the continental United States, he was not arriving “from some foreign port or place.” On the contrary, he was a United States national moving from one of our insular possessions to the mainland. It was not until the 1934 Philippine Independence Act that the Philippines could be regarded as “foreign” for immigration purposes. Having made no “entry,” respondent is not deportable under § 19 (a) as an alien who “after entry” committed crimes involving moral turpitude. The Government warns that this conclusion is inconsistent with a broad congressional purpose to terminate the United States residence of alien criminals. But we believe a different conclusion would not be permissible in view of the well-settled meaning of “entry” in § 19 (a). Although not penal in character, deportation statutes as a practical matter may inflict “the equivalent of banishment or exile,” Fong Haw Tan v. Phelan, 333 U. S. 6, 10, and should be strictly construed. See Delgadillo v. Carmichael," }, { "docid": "5613142", "title": "", "text": "to the Philippine Independence Act had not technically “entered” the United States and hence that Section 22 of the Internal Security Act of 1950 U.S.Code Congressional Service 1950, p. 984 (providing that aliens who, at the time of entering the United States or at any time thereafter, are members of the Communist Party of the United States, shall be deported) was inapplicable. Here we are dealing with the portion of Section 19 of the Immigration Act of 1917 concerning convictions for two crimes involving moral turpitude “committed at any time after entry”. The question then is whether Gonzales had made an “entry” as that word is used in the clause last quoted. In U. S. ex rel. Volpe v. Smith, 289 U.S. 422, 425, 53 S.Ct. 665, 77 L.Ed. 1298, “entry” was defined as including “any coming of an alien from a foreign country into the United States.” This definition was followed in subsequent cases, Delgadillo v. Carmichael, 332 U. S. 388, 68 S.Ct. 10, 92 L.Ed. 17; U. S. ex rel. Schlimmgen v. Jordan, 7 Cir., 164 F.2d 633, and has been adopted by the Immigration and Nationality Act of 1952, § 101(a) (13). At the time Gonzales arrived in this country in 1930, he was not an alien and hence not covered though coming from a foreign country or outlying possession, but was a United States national coming from an outlying possession. There has been no “entry” by an alien, and hence there have not been two crimes involving moral turpitude “committed at any time after entry”. It follows that Gonzales is not subject to deportation under Section 19 of the Immigration Act of 1917. We recognize the fact that this definition of the word “entry” is not its plain and obvious meaning, but we also recognize that the word has become a word of art. While it is true that the ultimate holdings in Volpe v. Smith, supra, and U. S. ex rel. Schlimmgen v. Jordan, supra, were that the coming of an alien into the United States for the second time was an “entry,” we do" }, { "docid": "3753657", "title": "", "text": "665, 77 L.Ed. 1298. Nevertheless, in Delgadillo v. Carmichael, 1947, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17, where an alien seaman entered a foreign country solely as a result of his ship being torpedoed, the Supreme Court held that his subsequent entry into the United States was not an entry within the meaning of Section 19(a). The Court said at page 391 of 332 U.S., at page 12 of 68 S.Ct.: “It would indeed be harsh to read the statute so as to add the peril of deportation to such perils of the sea,” and the Court concluded by saying: “The stakes are indeed high and momentous for the alien who has acquired his residence here. We will not attribute to Congress a purpose to make his right to remain here dependent on circumstances so fortuitous and capricious as those upon which the Immigration Service has here seized. The hazards to which we are now asked to subject the alien are too irrational to square with the statutory scheme.” Subsequently, where the circumstances of an alien’s departure were fortuitous and a literal application of the statute would have been grossly unfair, this flexible approach was applied in order to most reasonably effectuate the purposes of the Act. Savoretti v. United States ex rel. Pincus, 5 Cir., 1954, 214 F.2d 314; Schoeps v. Carmichael, 9 Cir., 1949, 177 F.2d 391; Yukio Chai v. Bonham, 9 Cir., 1947, 165 F.2d 207. Cf. Barber v. Gonzales, 1954, 347 U.S. 637, 74 S.Ct. 822, 98 L.Ed. 1009. Similarly, in Petition of Barandiaran’s Naturalization, D.C.S.D.N.Y.1954, 123 F.Supp. 827, on the authority of this line of decisions, an alien member of the armed forces’ entry after a visit to Mexico authorized by his commanding officer was held not to be an “illegal entry” within the meaning of 8 U.S.C.A. § 1440a. It would seem to be desirable to view Section 1254(a) (2), the provision here in question, as having inherent in it, sufficient flexibility to permit a rational effecting of the congressional intent. We must therefore consider whether the manner of McLeod’s departure to" }, { "docid": "3753656", "title": "", "text": "under color of law, had been seized and been held in Canada against his will for a period of time there would be little doubt that it was not the intent of Congress under such circumstances to render the statutory procedure unavailable. A very helpful line of cases has developed construing Section 19(a) of the Immigration and Nationality Act of 1917, 39 Stat. 874, as amended 54 Stat. 671, 8 U.S.C.A. § 155(a) (Now Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1251(a) (4)). Under the provision cited it became necessary to determine whether and when an alien can be deemed to have made an “entry”, for purposes of determining whether an alien had been convicted of a crime involving moral turpitude “after entry.\" The first cases dealing with this problem of construction flatly held that every return of an alien from a foreign country to the United States constituted an “entry” within the meaning of the Act. See, e. g., United States ex rel. Volpe v. Smith, 1933, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298. Nevertheless, in Delgadillo v. Carmichael, 1947, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17, where an alien seaman entered a foreign country solely as a result of his ship being torpedoed, the Supreme Court held that his subsequent entry into the United States was not an entry within the meaning of Section 19(a). The Court said at page 391 of 332 U.S., at page 12 of 68 S.Ct.: “It would indeed be harsh to read the statute so as to add the peril of deportation to such perils of the sea,” and the Court concluded by saying: “The stakes are indeed high and momentous for the alien who has acquired his residence here. We will not attribute to Congress a purpose to make his right to remain here dependent on circumstances so fortuitous and capricious as those upon which the Immigration Service has here seized. The hazards to which we are now asked to subject the alien are too irrational to square with the statutory scheme.” Subsequently, where the circumstances" }, { "docid": "1130848", "title": "", "text": "intention so to do. The Second Circuit properly held that this return did not constitute an “entry” within the meaning of sec. 19(a) of the Act of 1917, supra, as the alien had no part, either in planning or executing, his departure or return. To hold otherwise would rest the privilege of a lawfully admitted alien’s continued residence in the United States upon a most precarious basis. Indeed, the matter would often be determined, as was attempted here, by the most trivial and capricious circumstances. Such was not the intent of Congress. Yukio Chai v. Bonham, 9 Cir., 165 F.2d 207; Schoeps v. Carmichael, 9 Cir., 177 F.2d 391. While it is true that statutory language should be interpreted whenever possible according to common usage, some terms acquire a special technical-meaning by a process of judicial construction. So it is with the word “entry” as used in sec. 19(a) of the Act of 1917. In Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17, the Supreme Court narrowed its former definí-, tion of “entry” even more by holding that an alien does not make an “entry” from a foreign country if his arrival in the foreign country was unintentional. See Barber v. Gonzales, 74 S.Ct. 822, note 2. This petitioner did not conscious-' ly nor intentionally depart United States' jurisdiction. He had no intention to'go' to a foreign country. He had no part in fixing or changing the fishing location., He simply went out for a fishing trip in the Florida Keys, and woke up drunk the next morning in English waters about forty miles off the Florida Coast, from which he immediately returned without having left the fishing craft or setting foot on foreign soil. Anchoring the vessel off Bimini during the night was brought about by purely fortuitous circumstances, mainly a change in the weather, in which the petitioner had no part. The facts here do not constitute an “entry” as contemplated by the 1917 Act. In United States ex rel. Claussen v. Day, 279 U.S. 398, 49 S.Ct. 354, 73 L.Ed. 758; United States" }, { "docid": "13153362", "title": "", "text": "may also have had the option to use deportation proceedings against him. Whether exclusion proceedings were appropriate depends on whether he made an “entry” on March 11,1982. It is a general principle of immigration law that an alien who leaves the country and makes a new entry on his or her return is then subject to all current exclusionary laws. Bonetti v. Rogers, 356 U.S. 691, 698, 78 S.Ct. 976, 980, 2 L.Ed.2d 1087 (1958). The new entry stands the alien on the same footing as if it were the initial entry. Before the enactment of the Immigration and Naturalization Act of 1952, the term “entry” had been defined strictly as “any coming of an alien from a foreign country into the United States whether such coming be the first or any subsequent one.” United States ex rel. Volpe v. Smith, 289 U.S. 422, 425, 53 S.Ct. 665, 667, 77 L.Ed.2d 1298 (1933). This restrictive approach was modified by subsequent decisions. When a train from Buffalo to Detroit carried an alien without knowledge that the route passed through Canada, the Second Circuit held the alien had not effected an entry. Di-Pasquale v. Kamuth, 158 F.2d 878, 879 (2d Cir.1947). The court, in an opinion by Judge Learned Hand, said that an entry requires intent and “demands knowledge by the alien that the route which he is to take will carry him across our borders.” The Supreme Court approved the DiPasquale approach shortly thereafter. Faced with a fact pattern where an alien on a merchant ship that was torpedoed during World War II was taken to Cuba for one week to recuperate, it held that the alien was not voluntarily on foreign soil. Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17 (1947). The Court ruled that there was no entry if the alien did not depart voluntarily. Id. at 391, 68 S.Ct. at 12. These decisions were codified by Congress in the 1952 Act where it sought to define “entry” “as precisely as practicable”. H. Rep. No. 1365, 82d Cong., 2d Sess. (1952), reprinted in 1952 U.S.Code" }, { "docid": "21186866", "title": "", "text": "order places great stress upon United States ex rel. Volpe v. Smith, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298, which affirmed a deportation order sustained by this Court. 7 Cir., 62 F.2d 808. In that ease the alien who sought reentry falsely stated that he was a naturalized citizen and that his papers were in Chicago. That was a statement of fact which the Court held constituted fraud and deceit, which disarmed the inspector and terminated the inspection. That is a far cry from the situation here where there is no contention that plaintiff made a false, fraudulent or deceptive statement of fact. The opinion expressed by him related to a question of law, the resolution of which, as previously shown, is still in dispute. Plaintiff revealed to the inspector the true facts upon which he relied for his claim to citizenship. Even the officer who conducted the hearing at International Falls and detained plaintiff for further examination was in doubt as to his citizenship status, as is shown by his letter to plaintiff, dated July 20, 1953, “You do not appear to me to be clearly and beyond a doubt entitled to enter the United States.” Since Volpe, the Supreme Court has evidenced an increasing concern toward the rights of aliens sought to be deported. In Fong Haw Tan v. Phelan, 333 U.S. 6, page 10, 68 S.Ct. 374, page 376, 92 L.Ed. 433, the Court in construing a section of the Immigration Act stated: “We resolve the doubts in favor of that construction because deportation is a drastic measure and at times the equivalent of banishment or exile, Delgadillo v. Carmichael, 332 U.S. 388 [68 S.Ct. 10, 92 L.Ed. 17]. It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty. To construe this statutory provision less generously to the alien might find support in logic. But since the stakes are considerable for the individual, we will not assume that Congress meant to trench on his freedom beyond that which is required by the narrowest of several possible meanings" }, { "docid": "19753043", "title": "", "text": "permits the determination of an LPR who has committed such a crime as seeking admission. Even if we agreed with Petitioner’s reading, to hold otherwise would be to “simply impose [this court’s] own construction on the statute, as would be necessary in the absence of an administrative interpretation.” Id. at 443. Chevron commands we not go so far. B. Constitutional Objections Petitioner raises constitutional objections to the determination of her as an arriving alien. These take a variety of forms, but boil down to an argument that her treatment violates a nebulous “consti tutional core” of Fleuti and the Fifth Amendment Due Process Clause’s guarantees of equal protection and due process. Petitioner argues that Fleuti, while nominally based on statutory grounds, in fact reaffirmed a “constitutional core” of fair treatment of immigrants that courts had applied prior to § 101(a)(13)’s enactment in 1952. In tracing the Congressional intent behind the statute, the Fleuti Court did indeed review the caselaw preceding the INA’s enactment, in particular the judicially-developed definition of “entry.” Fleuti, 374 U.S. at 453, 83 S.Ct. 1804. In several instances, judges had endeavored to ameliorate the rather harsh definition adopted by the Court in United States ex rel Volpe v. Smith, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298 (1933), which excluded even long-standing resident aliens who left only briefly. Id. at 453-60, 53 S.Ct. 665 (citing Carmichael v. Delaney, 170 F.2d 239 (9th Cir.1948); Yukio Chai v. Bonham, 165 F.2d 207 (9th Cir.1947); DelGuercio v. Delgadillo, 159 F.2d 130 (9th Cir.1947); and Di Pasquale v. Karnuth, 158 F.2d 878 (2nd Cir.1947)). The Fleuti court’s discussion of these opinions, which preceded Congress’ passage of § 101(a)(13), does not evince any “constitutional core.” In Di Pasquale and Delgadillo, the primary cases discussed in Fleuti, the judges looked to Congress and its intent to ameliorate a judicial rule. Fleuti 374 U.S. at 455-56, 83 S.Ct. 1804. Nowhere in this Fleuti discussion is the Constitution even mentioned. Fleuti is properly read as a case of statutory interpretation, and the statute it interprets has been amended. No “constitutional core” has been violated" }, { "docid": "8906433", "title": "", "text": "the proper venue, under Section 164, if, but only if, the violation occurred at Baltimore. And this depends on whether appellant, in September, 1949, made an “entry,” within the meaning of the statute, at Baltimore. Specifically, the question may be thus stated: Where a seaman who had previously been deported, arrives at a port in the United States from a foreign place, and after examination by the; immigration authorities, is permitted to enter the United States, but chooses to remain on board the ship and not go ashore until it reaches the next port coastwise, at which port is he deemed to have made a statutory “entry” into the United States ? No case precisely in point has been found. As the District'Judge pointed out, clearly inapplicable here are the cases of Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17; Carmichael v. Delaney, 9 Cir., 170 F.2d 239; Pasquale v. Di Karnuth, 2 Cir., 158 F.2d 878. This is likewise true as to United States ex rel. Stapf v. Corsi, 287 U.S. 129, 53 S.Ct. 40, 77 L.Ed. 215; Kaplan v. Tod, 267 U.S. 228, 45 S.Ct. 257, 69 L.Ed. 585; United States ex rel. Rubio v. Jordan, 7 Cir., 190 F.2d 573. In United States ex rel. Patton v. Tod, 2 Cir., 297 F. 385, 396, Circuit Judge Mayer, considering the date of an entry under a different phase of the immigration laws, commented: “ * * * the word ‘entry’ is used, manifestly to distinguish situations where entry is something different from mere physical arrival at the port. “ * * * it is plain that the Congress had in view the entry after the alien was free from restraint^ 'So that he could physically enter the country either openly or surreptitiously.” ■ Not without significance here is the fact that, at a hearing 'by the Immigration Department, appellant, in answer to a question, testified that he had last entered the United States about September 22, 1949, at Baltimore. Important, too, is the administrative custom and practice under which Baltimore is clearly regarded as" }, { "docid": "19753044", "title": "", "text": "83 S.Ct. 1804. In several instances, judges had endeavored to ameliorate the rather harsh definition adopted by the Court in United States ex rel Volpe v. Smith, 289 U.S. 422, 53 S.Ct. 665, 77 L.Ed. 1298 (1933), which excluded even long-standing resident aliens who left only briefly. Id. at 453-60, 53 S.Ct. 665 (citing Carmichael v. Delaney, 170 F.2d 239 (9th Cir.1948); Yukio Chai v. Bonham, 165 F.2d 207 (9th Cir.1947); DelGuercio v. Delgadillo, 159 F.2d 130 (9th Cir.1947); and Di Pasquale v. Karnuth, 158 F.2d 878 (2nd Cir.1947)). The Fleuti court’s discussion of these opinions, which preceded Congress’ passage of § 101(a)(13), does not evince any “constitutional core.” In Di Pasquale and Delgadillo, the primary cases discussed in Fleuti, the judges looked to Congress and its intent to ameliorate a judicial rule. Fleuti 374 U.S. at 455-56, 83 S.Ct. 1804. Nowhere in this Fleuti discussion is the Constitution even mentioned. Fleuti is properly read as a case of statutory interpretation, and the statute it interprets has been amended. No “constitutional core” has been violated in this case. With respect to equal protection, Petitioner claims that § 1101(a)(13) is unconstitutional as-applied because there is no rational basis to distinguish between LPRs who have committed offenses under § 1182(a)(2) and left the country briefly and those who have also committed the offenses but have not left. Having left the country renders the former category inadmissible even though they might not be deportable under 8 U.S.C. § 1227(a)(2). We subject the classification at issue to rational basis review. Because Petitioner’s claim attacks a congressional ly-drawn distinction among aliens, our equal protection review is necessarily narrow; for “over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens.” Rodriguez-Silva, 242 F.3d at 246 (quoting Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) (punctuation omitted)); see also Castillo-Avalos v. Gonzales, 136 Fed.Appx. 629, 630 n. 4 (5th Cir.2005)(per curiam) (“Congress may make classifications of aliens as long as it has a facially legitimate reason for making the distinction”). Indeed, “the" }, { "docid": "4432279", "title": "", "text": "to have “a vested interest in his residence,” and was not to “be subject to meaningless and irrational hazards”; while he could have learned by inquiry that the train would take him out of the United States and back into it, there was no evidence that he “knew or had any intention of leaving the United States or of entering Canada.” 158 F.2d at 878-879. Pointing out that “[djeportation can be the equivalent of banishment or exile,” the Supreme Court eleven months after Di Pasquale, supra, relied upon it and followed it, in Delga-dillo v. Carmichael, 332 U.S. 388, 391, 68 S.Ct. 10, 12, 92 L.Ed. 17 (1947). There an alien merchant seaman, also later convicted of robbery, was rescued after his ship was torpedoed in World War II and taken to Havana, Cuba; his re-entry into the United States by way of Florida was held not to be an “entry” within the Act as it then read, the Court noting that “the exigencies of war, not his voluntary act, put him on foreign soil.” 332 U.S. at 391, 68 S.Ct. at 12. In Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S.Ct. 472, 97 L.Ed. 576 (1953), the Supreme Court held an alien lawfully admitted to permanent residence was not deprived of the rights of a resident upon his return to the United States from a voyage as a merchant seaman when he had stopped at but remained aboard the vessel at foreign ports of call. The Court found the alien entitled, under the due process clause of the Fifth Amendment, to a hearing on his objections to deportation, a right he would not have enjoyed without his resident status. In a 5-4 decision the Supreme Court in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953), held that an alien who had traveled abroad and remained in Hungary for nineteen months could be treated as an “entering alien,” and be detained on Ellis Island without a hearing on his threatened exclusion. 345 U.S. at 213, 73 S.Ct. 625. Kwong" }, { "docid": "22834382", "title": "", "text": "within five years after the entry of the alien to the United States, or who is hereafter sentenced more than once to such a term of imprisonment because of conviction in this country of any crime involving moral turpitude, committed at any time after entry . . . shall, upon the warrant of the Attorney General, be taken into custody and deported. . . (Italics added.) The Court of Appeals sustained respondent’s contention that he had never made the requisite “entry.” With this conclusion, we agree. The Government would have us interpret “entry” in § 19 (a) in its “ordinary, everyday sense” of a “coming into the United States.” Under this view, respondent’s “coming into the United States” from the Philippine Islands in 1930 would satisfy the “entry” requirement. While it is true that statutory language should be interpreted whenever possible according to common usage, some terms acquire a special technical meaning by a process of judicial construction. So it is with the word “entry” in § 19 (a). E. g., Delgadillo v. Carmichael, 332 U. S. 388; United States ex rel. Claussen v. Day, 279 U. S. 398; Di Pasquale v. Karnuth, 158 F. 2d 878; Del Guercio v. Gabot, 161 F. 2d 559. Cf. United States ex rel. Volpe v. Smith, 289 U. S. 422, 425. In United States ex rel. Claussen v. Day, supra, at 401, this Court stated the applicable rule: “The word 'entry’ [in § 19 (a)] by its own force implies a coming from outside. The context shows that in order that there be an entry within the meaning of the Act there must be an arrival from some foreign port or place. There is no such entry where one goes to sea on board an American vessel from a port of the United States and returns to the same or another port of this country without having been in any foreign port or place.” (Italics added.) See also United States ex rel. Stapf v. Corsi, 287 U. S. 129, 132; Carmichael v. Delaney, 170 F. 2d 239, 242-243. This concept of “entry” was" } ]

[ { "docid": "101579", "title": "", "text": "(1943). . C. Clason, Welding and Cutting Fumes, Welding Engineer (1943). . NEMA Arc Welding Section meeting minutes at 538 (Oct. 17, 1949). . Id. . Id. . Aireo memorandum from I. Yates to F. Saacke at 1 (Oct. 25, 1949). . Id. . NEMA Arc Welding Section meeting minutes at 581 (Jan. 17, 1951). . Lincoln Electric, “Procedure Handbook of Arc Welding,'' at 1-27 (10th ed.1955). Lincoln reiterated this statement in subsequent editions of the Handbook for at least the next 15 years. . Letter to L Terry from A. Patnik (Nov. 30, 1965). . AWS Committee on Filler Metal meeting minutes at 2 (June 8, 1966). . Letter from R. Shutt to P. Shepard at 1 (June 7, 1967). . Id. . Internal memo to file from Arcos Corp.'s R.D. Thomas (Jan. 30, 1967). . J. Caprarola, et al., \"Welding Industry to Use Caution Label on Filler Metal Packages,” Welding Journal (August 1967). .For example, the AWS Safety & Health Committee meeting on June 23, 1999 lists members from the following businesses and organizations, among others: (1) MDL defendants — ESAB, Praxair, Lincoln Electric, Westinghouse Electric, and Caterpillar; and (2) governmental entities — the U.S. Department of Safety, the U.S. Department of Energy, the U.S. Army Center for Health Promotion and Preventative Medicine, the National Institute for Occupational Safety and Health (\"NIOSH”), and the Florida Division of Safety. Individuals representing entities engaged in welding education and research also frequently attended AWS meetings. . AWS Rules of Operation for Safety & Health Committees at 1 (1974, rev. 1990). . Id. at 18. . Battelle Survey at 27. . Id. at 60. . Id. at 65. Threshold Limit Values (\"TLVs”) are promulgated by the American Conference of Governmental Industrial Hygienists (“ACGIH”). The ACGIH describes a TLV as follows: \"[TLVs] refer to airborne concentrations of chemical substances and represent conditions under which it is believed that nearly all workers may be repeatedly exposed, day after day, over a working lifetime, without adverse health effects. TLVs are developed to protect workers who are normal, healthy adults.” See www.acgih. org/Products/tlv — bei—intro.htm. Over" } ]

[ { "docid": "266679", "title": "", "text": "is no known safe level of exposure to manganese in welding fume, and/or that the level at which exposure becomes unsafe is not known); see AWS Fumes and Gases Committee Meeting Minutes at 2 (Oct. 24, 2001) (noting that the United Kingdom had recently issued \"a Chemical Hazard Alert Notice for manganese that eliminated the occupational exposure limit because they do not believe a safe level is known”) (trial exh. 81). . Trial tr. at 1192-96 (Feb. 14, 2008). Evidence was presented showing that defendants have been aware for decades that welding fume exposure could cause Manganese-Induced Parkinsonism (\"MIP”). In 1979, for example, a widely-distributed AWS literature review noted that “[plotential exposure to manganese occurs whenever this metal is used in electrode coatings or in electrode wire,” and that manganese is \"poisonous to the nervous system.” American Welding Society, \"Effects of Welding on Health,” at xix (1979) (trial exh. 2940). This literature review went on to state that the “observation that manganism resembles Parkinson's disease deserves emphasis. Although no data on the prevalence of parkinsonism in welders are available, there is a concern that some cases of manganese poisoning could be mistakenly diagnosed as Parkinson’s disease. Further investigations may be warranted.” Id. at 29. In 1980, commenting on another welding fume lawsuit that was widely discussed within the industry, one manufacturer wrote the following summary: \"[the plaintiffs] complained of the fumes for 3 weeks, then came down with symptoms of manganese poisoning. They have severe neurological damage which ... is doubtless due to the welding in a confined area with the Hadfield Manganese rods. The damage is irreversible — these guys are impaired for life.” Teledyne memorandum from D. Kotecki to W.T. Delong at 1 (Mar. 4, 1980) (trial exh. 498). In 1992, an internal ESAB memorandum also acknowledged the same hazard, stating: \"Once [welding rods] are used in an electric arc, they can liberate respirable manganese fumes. * * * Manganese fumes are of serious concern. The irreversible neurological damaged produced by chronic overexposure to manganese fume is tragic. You are wise to be concerned.” ESAB memorandum from George" }, { "docid": "266694", "title": "", "text": "‘malicious’, ‘reckless’, ‘oppressive’, ‘evil’, 'wicked’, or guilty of 'wanton misconduct,’ or 'morally culpable' conduct. ... [A]lmost any term that describes misconduct coupled with a bad state of mind will describe the case for a punitive award.”) (quoted with approval in Andrew Jackson Life Ins. Co. v. Williams, 566 So.2d 1172, 1188 (Miss.1990)). .Motion at 1-2 (docket no. 445). . Response brief at 3-4 (docket no. 451) (footnote omitted). . Rather than refer back to earlier language, a portion of the evidence and analysis recited in this section of the opinion is simply repeated from the Court's causation discussion in section II.A of this opinion. . Metropolitan Life Insurance Company, “Health Protection of Welders ” Booklet at 24 (1937) (trial exh. 936). . Id. at 23. \"Paralysis agitans” is now more commonly known as Parkinson’s Disease. . See, e.g., National Electric Manufacturers Association, Electric Welding Section meeting minutes at 135, discussing MetLife Booklet (Jan. 20, 1938) (trial exh. 140); BOC internal memorandum, quoting MetLife Booklet (trial exh. 197). . Airco/BOC memorandum from I. Yates to F. Saacke at 1 (Oct. 25, 1949) (trial exh. 220). . Airco/BOC memorandum from John J. Crowe to E.H. Roper (Sept. 5, 1950) (trial exh. 223). . Airco/BOC memorandum from F. Saacke to members of Safe Practices Committee (Dec. 7, 1950) (trial exh. 407). . Airco/BOC memorandum from J. Crowe to E. Cosden (Dec. 7, 1950) (trial exh. 6081). . Lincoln Electric, \"Procedure Handbook of Arc Welding,\" at 1-27 (11th ed. 1957) (trial exh. 487) (emphasis added). Lincoln first made this statement in an earlier edition of the handbook and reiterated it in subsequent editions for at least the next 16 years. See trial tr. at 656-58 (Feb. 11, 2008); id. at 1313 (Feb. 14, 2008). . See trial tr. at 1315-19 (Feb. 14, 2008) (discussion of documents showing that the animals used in the cited research had about a 10% death rate and 50% injury rate; and that Mr. Lincoln had parts of the research article rewritten). . See trial tr. at 2937-48 (Feb. 27, 2008) (discussing Lincoln's use of this article); trial exh. 230" }, { "docid": "101583", "title": "", "text": "(July 7, 2005), exh. 17 at 1 (internal memo dated June 3, 1992). . Id. at 3. . AWS Safety & Health Committee meeting minutes at 5 (Nov. 30, 1978). . AWS Safety & Health Committee meeting minutes at 4 (March 19, 1979). . AWS Safety & Health Committee meeting minutes at 3 (June 20, 1979). . The four research organizations were University of Cincinnati (Kettering Laboratories), University of Pittsburgh, University of Michigan, and Franklin Institute Research Laboratories. .AWS RFP at 3. . Letter from Ward to Grawey at 1 (Oct. 28, 1980). . AWS Safety & Health Committee meeting minutes at 5 (May 20, 1981). . AWS Subcommittee on Fumes and Gases meeting minutes at 2 (Mar. 2, 1982). Dr. Ward also testified that the study did not take place due to lack of available funding. Ward depo. at 276 (June 15, 2005). . Memorandum from Ward to Grawey at 1 (June 11, 1984). . Id. . Id. NIOSH was also conducting a cancer epidemiology study at Caterpillar at this time. . AWS Safety & Health Committee meeting minutes at 2 (Dec. 8-9, 1993). . AWS Safety & Health Committee meeting minutes at 4 (Dec. 7-8, 1994). . Memo, to Grawey at 1 (Jan. 4, 1988). . Id. . Id. . Id. . See depo. of Paul Hodgins (July 7, 2005), exh. 17 at 1-3 (internal memo dated June 3, 1992). . The PEL-C is the maximum amount to which a person may be exposed at any moment in time. This compares to the TLV, which is the maximum average amount to which a person may be exposed over an 8-hour time period. Thus, for example, during a work day, a welder may be exposed to manganese fumes for a 5-minute period in excess of the 5.0 mg/mm3 PEL-C, but may not suffer manganese fume exposures in excess of the 8-hour time-weighted average of 0.2 mg/mm 3 TLV — and vice versa. The 8-hour TLV measurement is also essentially the same as the measurement known as PEL-TWA, or “Permissible Exposure Limit— Time Weighted Average,” mentioned below. . Memorandum from" }, { "docid": "266705", "title": "", "text": ". 1996 WL 36977 (4th Cir. Jan. 31, 1996). . Id. at *3. . 66 F.3d 1378, 1383 (4th Cir.1995). . Bungee, 1996 WL 36977 at *3 n. 8. . Id. . The same analysis applies to Kritser, 479 F.2d at 1097, discussed briefly in footnote 159, above, where the defendant supplied “some warning’' about the particular, known hazard that injured the plaintiff — \"prolonged operation in a slip or skid attitude under low fuel conditions.” Two other cases cited by defendants (in a brief addressing punitive damage claims in another MDL case) are distinguishable or inapposite, offering at best only comments-in-passing in dicta. Messer v. Amway Corp., 210 F.Supp.2d 1217 (D.Kan.2002), affirmed, 106 Fed.Appx. 678, 688 (10th Cir.2004) (summary judgment granted to defendant on punitive damage claim but only after summary judgment granted on all underlying warnings claims); Meyerhoff v. Michelin Tire Corp., 852 F.Supp. 933, 942 (D.Kan.1994), affirmed, 70 F.3d 1175 (10th Cir.1995) (court granted defense motion for j.n.o.v on underlying warnings claim and did not allow question of punitive damages to go to jury). .Although the standard industry warning adopted in 1967 by the American Welding Society used the phrase \"avoid breathing these fumes and gases,” defendant Air-co/BOC’s labels stated \"avoid excessive breathing of these fumes and gases,” while defendant Lincoln's labels stated \"avoid breathing concentrations of these fumes and gases.” See trial exhs. 5487, 2055 (emphasis added). . Toole, 999 F.2d at 1436. . Hobart MSDS No. TRTW for Tubular Arc Welding Electrodes at 4 (July 1999) (trial exh. 2048); see Lincoln Electric MSDS No. USM349 for AWS E11018M electrodes at 2 (Mar. 15, 1993) (trial exh. 2059) (noting that \"short term (acute) overexposure to welding fumes may result in discomfort such as metal fume fever”). . Defendants' own warnings expert, Dr. Eric Shaver, co-wrote a chapter in Michael S. Wogalter, Handbook of Warnings (2006), and described the Handbook as the \"main resource” in the field. . Wogalter's Handbook of Warnings at 56 (2006) (trial exh. 5433c). . AWS A5 Task Group on Warning Labels Meeting Minutes at 3 (Mar. 7, 1979) (trial exh. 128). ." }, { "docid": "266677", "title": "", "text": "neurological and neurobehavioral deficits may occur when workers are exposed to low levels of manganese (<0.2 mg/m3) in welding fumes. These effects include changes in mood and short-term memory, altered reaction time, and reduced hand-eye coordination. Affected workers frequently show abnormal accumulations of manganese in a region of the brain known as the globus pallidus. The globus pallidus plays an important role in movement regulation. NIOSH is currently reviewing its Recommended Exposure Limit (REL) for manganese as a result of these studies.” See www. cdc.gov/niosh/topics/welding. . The ACGIH also promulgates a measure similar to OSHA's PEL, which it terms a \"Threshold Limit Value-Ceiling” (\"TLV-C”). Like OSHA’s PEL, the TLV-C is a \"concentration that should not be exceeded during any part of the working exposure.” The ACGIH states that “under no circumstances should [the TLV-C] exceed 5 times the [time-weighted average TLV].” Thus, the position of the ACGIH is that welders should never, even momentarily, suffer manganese exposure above 1.0 mg/m3, which is five times the TLV of 0.2 mg/m3. See www.acgih.org/Products/ tlv_bei_intro.htm. . Battelle Survey at 27 (trial exh. 1562) (emphasis added). . Id. at 65. Defendants’ documents also suggest that the manganese content in weld ing fumes can be as much as 10 times greater than the manganese content in the welding consumable, itself. See also trial tr. at 627 (Feb. 11, 2008) (testimony of Lincoln representative agreeing that “manganese in welding rod ... actually increases by five or sixfold when it goes from rod to fume”). . Lincoln Powerpoint presentation at 12 (2004) (trial exh. 6112). . AWS Safety & Health Committee Meeting minutes at 5 (May 20, 1981) (trial exh. 1647). Without exception, all of the meeting minutes and other documents that were sent to or from trade organizations (such as the American Welding Society) (\"AWS”) and National Electrical Manufacturers Association \"(NEMA”) that are cited in this opinion were also received or sent by defendants’ managerial employees, who were and are members of those organizations. . See trial tr. at 1188-91 (Feb. 14, 2008) (review of testimony of Lincoln representatives Marie Quintana and Kenneth Brown that there" }, { "docid": "266701", "title": "", "text": "in the breathing zone of [Caterpillar] welder[s].” Id. . Id. “Fume extraction” involves a mechanism to capture fumes at their source, using vacuum suction near the weld itself. In comparison, general room ventilation exhausts fumes only to the same extent as the air turnover of the ambient environment. . See Letter from Ken Brown (Lincoln/AWS) to Ronald Ratney (ACGIH) (Dec. 16, 1994) (trial exh. 31); Letter from Ronald Ratney to Kenneth L. Brown (Jan. 3, 1995) (trial exh. 215). . AWS Project Committee on Fumes and Gases Meeting Minutes at 2 (Oct. 18, 1995) (trial exh. 1023). . AWS Safety & Health Fact Sheet No. 1 (2003) (trial exh. 84). . Id. at 1. . See trial tr. at 2921-22 (Feb. 27, 2008) (reading this warning). . See trial tr. at 1953 et seq. (Feb. 21, 2008) (testimony of AWS representative regarding this prospective study). . AWS Safety & Health Committee meeting minutes at 4 (March 19, 1979) (trial exh. 10). . AWS Subcommittee on Fumes and Gases meeting minutes at 2 (Mar. 2, 1982) (trial exh. 1648). Dr. Ward also testified that the study did not take place due to lack of available funding. Ward depo. at 276 (June 15, 2005). . In re Welding Fume Prods. Liab. Litig., 2005 WL 1868046 at *36 (N.D.Ohio Aug. 8, 2006). . Id. . Ruth v. Lincoln Elec. Co., case no. 04-CV-18912, docket no. 183 at 30-31 (N.D.Ohio Feb. 7, 2006) (emphasis added). . In re Welding Fume Prods. Liab. Litig., 534 F.Supp.2d 761, 762 (N.D.Ohio 2008). . Trial tr. at 2336 (Feb. 25, 2008). . Id. at 1713 (Feb. 20, 2008). . Id. at 522 (Feb. 11, 2008). .Id. at 500-07 (Dr. Bums summarizing the US-PHS study and quoting the UN-WHO study); see trial exh. 1547 (UN-WHO study); see also trial tr. at 582 (quoting from page 50 of the US-PHS study: \"Manganism has been documented in welders and in workers exposed to high levels of manganese dust or fumes in mine and foundries.”). .Id. at 2242 (Feb. 25, 2008). . Id. at 620-21 (Feb. 11, 2008). Dr. Hurtig added that" }, { "docid": "266696", "title": "", "text": "(article) (emphasis added). . See J. Caprarola, et al., “Welding Industry to Use Caution Label on Filler Metal Packages,” Welding Journal (August 1967) (trial exh. 890) (“Precautionary statements such as the one being employed by the welding industry are now appearing on packages of cigarettes, household cleaners, pharmaceutical products, and even on such seemingly innocuous products as children's toys and wearing apparel.”). . See, e.g., trial exh. 2845 (ANSI Z49.11967), trial exh. 2847 (ANSI Z49.1-1983), trial exh. 6057 (ANSI Z49.1-1994); see trial tr. at 2953 (Feb. 27, 2008) (Lincoln representative agreeing that \"none of the editions” of ANSI Z49.1 \"say anything about the risk of neurological injury from manganese in welding fume”). See also footnote 147, infra (discussing ANSI Z49.1). . Letter from R. Shutt to P. Shepard at 1 (June 7, 1967) (trial exh. 233). . Id. . Internal memo to file from Arcos Corp.’s R.D. Thomas (Jan. 30, 1967) (trial exh. 232) (emphasis added). See also Letter from AWS Technical Director Edward Fenton to AWS Secretary D.S. Duvall at 1 (Oct. 11, 1967) (trial exh. 1700) (explaining that it \"was the intention of the Task Group that prepared this article that reprints of it could be distributed to the [welders] within a company to alleviate any reaction to the appearance of the label”). . J. Caprarola, et at, \"Welding Industry to Use Caution Label on Filler Metal Packages,” Welding Journal (August 1967) (trial exh. 890). . Battelle Survey at 27 (emphasis added) (trial exh. 236). . Id. at 60. . Id. at 65. As noted earlier: over time, as knowledge of the toxicity of manganese has increased, the TLV for manganese has dropped. In 1948, the TLV was an 8-hour time-weighted average of 6.0 mg/m3; it was dropped to 5.0 mg/m3 in 1960, and dropped again to 1.0 mg/m3 in 1979; and the current TLV for manganese, set in 1995, is an 8-hour time-weighted average of 0.2 mg/m3. In 2003, the ACGIH issued a \"notice of intended change (NIC)” to lower the TLV for respirable manganese to 0.03 mg/m3, but this change was never ratified. In October of" }, { "docid": "266700", "title": "", "text": ". 29 C.F.R. § 1910.1200(f)(1). . Id. § 1910.1200(c). . AWS Health & Safety Committee Meeting Minutes at 4 (June 17, 1987) (trial exh. 567). . When the ACGIH lowered the manganese exposure TLV to 0.2 mg/m3 in 1994, it explained to defendant Lincoln that \"the available data indicate that a TLV of 0.2 mg/m3 is needed to prevent progressive neurological changes in workers exposed to manganese.” Letter from ACGIH’s Ronald Ratney to Lincoln’s Kenneth Brown at 1 (Jan. 3, 1995) (trial exh. 215). As explained in footnote 43 above, each time the ACGIH lowered the 8-hour time weighted average TLV for manganese, it also lowered the \"ceiling amount” TLV-C for manganese by the same ratio. . AWS Fumes and Gases Committee meeting minutes at 3 (Oct. 4, 1994) (trial exh. 920). . Letter from H.K. Thompson to Edward Kinghorn at 1 (Feb. 17, 1995) (trial exh. 33). Caterpillar's statement that about half of its workers would be overexposed if the TLV was lowered to 0.2 mg/m3 was based on \"over 2400 personal samples taken in the breathing zone of [Caterpillar] welder[s].” Id. . Id. “Fume extraction” involves a mechanism to capture fumes at their source, using vacuum suction near the weld itself. In comparison, general room ventilation exhausts fumes only to the same extent as the air turnover of the ambient environment. . See Letter from Ken Brown (Lincoln/AWS) to Ronald Ratney (ACGIH) (Dec. 16, 1994) (trial exh. 31); Letter from Ronald Ratney to Kenneth L. Brown (Jan. 3, 1995) (trial exh. 215). . AWS Project Committee on Fumes and Gases Meeting Minutes at 2 (Oct. 18, 1995) (trial exh. 1023). . AWS Safety & Health Fact Sheet No. 1 (2003) (trial exh. 84). . Id. at 1. . See trial tr. at 2921-22 (Feb. 27, 2008) (reading this warning). . See trial tr. at 1953 et seq. (Feb. 21, 2008) (testimony of AWS representative regarding this prospective study). . AWS Safety & Health Committee meeting minutes at 4 (March 19, 1979) (trial exh. 10). . AWS Subcommittee on Fumes and Gases meeting minutes at 2 (Mar. 2, 1982)" }, { "docid": "19186066", "title": "", "text": "the alleged toxic substance in the plaintiffs blood or tissue — the precise amount of the toxic substance to which an individual plaintiff was exposed.”); see also Goforth v. Lincoln Elec. Co., case no. 06-CV-17217, trial tr. at 1936, 1941-42 (Nov. 8, 2006) (Welding Fume MDL welder-witness testifying his “safety-conscious” employer monitored his welding fume exposure with an air-sampling device two times during his 24-year career). The Court rejects defendants' arguments in this case suggesting that Borg-Warner and Stephens require a level of evidentiary precision that the Reference Manual on Scientific Evidence calls \"difficult, if not impossible,” to achieve. . Evidence of quantitative dose reconstruction is also elusive, at best. In the MDL bellwether case of Solis v. Lincoln Elec. Co., case no. 04-CV-17363 (N.D.Ohio), the plaintiff did, in fact, offer expert testimony from an industrial hygienist regarding efforts to reconstruct, in part, the plaintiff's career exposure to manganese in welding fumes. See Solis trial tr. at 1387-1421 (June 8, 2006) (Daubert hearing testimony of expert Steven Paskal regarding \"work practice simulation studies”). Defendants argued strongly that these attempts to reconstruct the welder-plaintiff's \"manganese dose” suffered from numerous procedural and substantive infirmities. The Court concluded the expert's studies were admissible only \"for purposes of supplying [reference] ranges or data points” — the expert could not express an opinion “that [the] exact air ranges or exact air numbers [obtained in the \"work practice simulation studies”] are meant to replicate any particular day during Mr. Solis’ welding experience.” Id. at 1420. See also id. at 1650 et seq. (June 9 & 12, 2008) (Paskal’s trial testimony regarding simulation studies) . AWS Fumes and Gases Committee meeting minutes at 3 (Oct. 17, 1994) (trial exh. 920) (emphasis added). . See In re Welding Fume Prods. Liab. Litig., 245 F.R.D. 279, 316 (N.D.Ohio 2007) (in the context of denying certification of a medical monitoring class, reviewing plaintiffs’ evi dence and concluding that “at least some defendants have recognized that some welder-plaintiffs: (1) are routinely exposed to manganese in welding fumes above safe threshold limits; [and] (2) thereby suffer an increased risk of developing neurological" }, { "docid": "266697", "title": "", "text": "(trial exh. 1700) (explaining that it \"was the intention of the Task Group that prepared this article that reprints of it could be distributed to the [welders] within a company to alleviate any reaction to the appearance of the label”). . J. Caprarola, et at, \"Welding Industry to Use Caution Label on Filler Metal Packages,” Welding Journal (August 1967) (trial exh. 890). . Battelle Survey at 27 (emphasis added) (trial exh. 236). . Id. at 60. . Id. at 65. As noted earlier: over time, as knowledge of the toxicity of manganese has increased, the TLV for manganese has dropped. In 1948, the TLV was an 8-hour time-weighted average of 6.0 mg/m3; it was dropped to 5.0 mg/m3 in 1960, and dropped again to 1.0 mg/m3 in 1979; and the current TLV for manganese, set in 1995, is an 8-hour time-weighted average of 0.2 mg/m3. In 2003, the ACGIH issued a \"notice of intended change (NIC)” to lower the TLV for respirable manganese to 0.03 mg/m3, but this change was never ratified. In October of 2008, the ACGIH issued a draft NIC to lower the TLV for respirable manganese to 0.02 mg/m3, and this change is pending. . Id. at 27. . See trial tr. at 2931-32 (Feb. 27, 2008) (quoting a Russian article — Eyso, Clinical Aspects of Manganese Intoxication in Electric Welders (1966) — as stating: \"Just ten years ago [1955], the question of the possibility of chronic manganese intoxication in electric welders was the subject of heated discussion. Now such a possibility is already generally accepted.”). . American Welding Society, \"Effects of Welding on Health,\" at xix (1979) (trial exh. 190). The Franklin Research Center prepared this literature review for the AWS Safety & Health Committee, and the review was overseen by the AWS Research Committee and Research Finance Committee. Employees of defendants were members of these committees. . Id. at 29. . See trial tr. at 2006-12 (Feb. 21, 2008) (noting that the AWS considered including the warning language that \"Breathing excessive amounts of welding fumes and gases can harm your health and may lead to" }, { "docid": "266698", "title": "", "text": "2008, the ACGIH issued a draft NIC to lower the TLV for respirable manganese to 0.02 mg/m3, and this change is pending. . Id. at 27. . See trial tr. at 2931-32 (Feb. 27, 2008) (quoting a Russian article — Eyso, Clinical Aspects of Manganese Intoxication in Electric Welders (1966) — as stating: \"Just ten years ago [1955], the question of the possibility of chronic manganese intoxication in electric welders was the subject of heated discussion. Now such a possibility is already generally accepted.”). . American Welding Society, \"Effects of Welding on Health,\" at xix (1979) (trial exh. 190). The Franklin Research Center prepared this literature review for the AWS Safety & Health Committee, and the review was overseen by the AWS Research Committee and Research Finance Committee. Employees of defendants were members of these committees. . Id. at 29. . See trial tr. at 2006-12 (Feb. 21, 2008) (noting that the AWS considered including the warning language that \"Breathing excessive amounts of welding fumes and gases can harm your health and may lead to disability,\" but did not do so because various manufacturers objected strongly to the last four words). . Teledyne memorandum from D. Kotecki to W.T. Delong at 1 (Mar. 4, 1980) (trial exh. 498). The memorandum added that \"Had-field manganese electrodes and wires should carry an extra warning of the dangers of this type of welding.” Id. . AWS Safety & Health Committee meeting minutes at 5 (May 20, 1981) (trial exh. 1647). See also letter from Damien Kotecki (employee of manufacturer TDY and later Lincoln) to the AWS at 2 (Apr. 1, 1980) (trial exh. 60) (\"[m]anganese fumes have been shown to cause severe neurological damage”). In 1992, an internal ESAB memorandum also acknowledged the same hazard, stating: \"Once [welding rods] are used in an electric arc, they can liberate respirable manganese fumes. * * * Manganese fumes are of serious concern. The irreversible neurological damaged produced by chronic overexposure to manganese fume is tragic. You are wise to be concerned.” ESAB memorandum from George Barnes to William Esch (Feb. 24, 1992) (trial exh. 260)." }, { "docid": "266707", "title": "", "text": "NEMA Ad Hoc Committee on Warning Labels Meeting Minutes at 5 (Jan. 11, 1979) (trial exh. 123). . Letter Ballot from Marv Kennebeck to AWS Safety and Health Executive Committee (Jan. 4, 1985) (trial exh. 207). . Internal ESAB memorandum from Mario Amata to Stan Ferree (Nov. 18, 2002) (trial exh. 274). The MSDSs used by the other defendants also gave little or no hint that the symptoms of overexposure to manganese were more than transient. See, e.g., ESAB/A1-loy Rods Atom Arc MSDS (1993) (trial exh. 3318) (\"Short-term (acute) overexposure to welding fumes may result in discomfort such as: dizziness, nausea, or dryness or irritation of nose, throat, or eyes”); Airco/BOC 11018M MSDS (1979) (same); Lincoln E7018 MSDS (1999) (trial exh. 3109) (\"Manganese overexposure can affect the central nervous system resulting in impaired speech and movement”). .As plaintiffs pointed out at trial, the small size of the print on the defendants' warnings, and their placement on the bottom of the containers, may also be seen as evidence of efforts to \"soften the impact” of the warning. See trial tr. at 838 (Feb. 12, 2008) (Robert Jowers testifying that \"[w]e used to laugh at [the warning label] because it was so small.”). . Michael S. Wogalter, Handbook of Warnings 635 (2006) (emphasis in original) (trial exh. 5433c). Dr. Cunitz also characterized \"anti-warnings” as a type of \"spin control.” Trial tr. at 1310 (Feb. 14, 2008). Thus, an \"anti-warning” is not itself a warning at all, but a communication meant to mitigate the force and effect of a separate, already-existing warning. . 9 Cal.Rptr.3d 29 (Cal.Ct.App.2004), review dismissed, 18 Cal.Rptr.3d 873, 97 P.3d 814 (Cal.2004), cert. denied, 544 U.S. 920, 125 S.Ct. 1640, 161 L.Ed.2d 477 (2005). . See Pennington v. Vistron Corp., 876 F.2d 414, 418 (5th Cir.1989) (reciting the history of warnings on cigarette packages). . Henley, 9 Cal.Rptr.3d at 68. In particular, the defendant did not warn of \"the extreme difficulty [that smokers] were likely to encounter in any future attempt to stop smoking.” Id. at 69. . See also Boerner v. Brown & Williamson Tobacco Co., 394 F.3d" }, { "docid": "266680", "title": "", "text": "in welders are available, there is a concern that some cases of manganese poisoning could be mistakenly diagnosed as Parkinson’s disease. Further investigations may be warranted.” Id. at 29. In 1980, commenting on another welding fume lawsuit that was widely discussed within the industry, one manufacturer wrote the following summary: \"[the plaintiffs] complained of the fumes for 3 weeks, then came down with symptoms of manganese poisoning. They have severe neurological damage which ... is doubtless due to the welding in a confined area with the Hadfield Manganese rods. The damage is irreversible — these guys are impaired for life.” Teledyne memorandum from D. Kotecki to W.T. Delong at 1 (Mar. 4, 1980) (trial exh. 498). In 1992, an internal ESAB memorandum also acknowledged the same hazard, stating: \"Once [welding rods] are used in an electric arc, they can liberate respirable manganese fumes. * * * Manganese fumes are of serious concern. The irreversible neurological damaged produced by chronic overexposure to manganese fume is tragic. You are wise to be concerned.” ESAB memorandum from George Barnes to William Esch (Feb. 24, 1992) (trial exh. 260). Other such evidence is referred to throughout the rest of this opinion. . AWS Fumes and Gases Committee meeting minutes at 3 (Oct. 17, 1994) (trial exh. 920). . See also Jowers trial tr. at 1203-06 (Feb. 14, 2008) (testimony regarding trial exh. 33, a 1995 letter written by Caterpillar, Inc. to the Ferroalloys Association arguing against reduction of the TLV, because \"approximately 50% [of Caterpillar welders] would be over exposed to manganese at [a TLV] of 0.2”) (same exhibit also discussed at In re Welding Fume Prods. Liab. Litig., 526 F.Supp.2d 775, 790 (N.D.Ohio 2007)). . See trial tr. at 1199-1204, 1218-26 (Feb. 14.2008) (testimony of Mr. Kahane regarding the OSHA database). . Trial tr. at 1197 (Feb. 14, 2008). . Id. at 1198, 1207-08. Indeed, Lincoln's representative testified at trial that he \"wouldn't be surprised at all if welders responsibly using [mild steel welding rods] during the '70s, '80s and early '90s were exposed to over 0.2 milligrams per cubic meter of manganese.”" }, { "docid": "266699", "title": "", "text": "disability,\" but did not do so because various manufacturers objected strongly to the last four words). . Teledyne memorandum from D. Kotecki to W.T. Delong at 1 (Mar. 4, 1980) (trial exh. 498). The memorandum added that \"Had-field manganese electrodes and wires should carry an extra warning of the dangers of this type of welding.” Id. . AWS Safety & Health Committee meeting minutes at 5 (May 20, 1981) (trial exh. 1647). See also letter from Damien Kotecki (employee of manufacturer TDY and later Lincoln) to the AWS at 2 (Apr. 1, 1980) (trial exh. 60) (\"[m]anganese fumes have been shown to cause severe neurological damage”). In 1992, an internal ESAB memorandum also acknowledged the same hazard, stating: \"Once [welding rods] are used in an electric arc, they can liberate respirable manganese fumes. * * * Manganese fumes are of serious concern. The irreversible neurological damaged produced by chronic overexposure to manganese fume is tragic. You are wise to be concerned.” ESAB memorandum from George Barnes to William Esch (Feb. 24, 1992) (trial exh. 260). . 29 C.F.R. § 1910.1200(f)(1). . Id. § 1910.1200(c). . AWS Health & Safety Committee Meeting Minutes at 4 (June 17, 1987) (trial exh. 567). . When the ACGIH lowered the manganese exposure TLV to 0.2 mg/m3 in 1994, it explained to defendant Lincoln that \"the available data indicate that a TLV of 0.2 mg/m3 is needed to prevent progressive neurological changes in workers exposed to manganese.” Letter from ACGIH’s Ronald Ratney to Lincoln’s Kenneth Brown at 1 (Jan. 3, 1995) (trial exh. 215). As explained in footnote 43 above, each time the ACGIH lowered the 8-hour time weighted average TLV for manganese, it also lowered the \"ceiling amount” TLV-C for manganese by the same ratio. . AWS Fumes and Gases Committee meeting minutes at 3 (Oct. 4, 1994) (trial exh. 920). . Letter from H.K. Thompson to Edward Kinghorn at 1 (Feb. 17, 1995) (trial exh. 33). Caterpillar's statement that about half of its workers would be overexposed if the TLV was lowered to 0.2 mg/m3 was based on \"over 2400 personal samples taken" }, { "docid": "266695", "title": "", "text": "Saacke at 1 (Oct. 25, 1949) (trial exh. 220). . Airco/BOC memorandum from John J. Crowe to E.H. Roper (Sept. 5, 1950) (trial exh. 223). . Airco/BOC memorandum from F. Saacke to members of Safe Practices Committee (Dec. 7, 1950) (trial exh. 407). . Airco/BOC memorandum from J. Crowe to E. Cosden (Dec. 7, 1950) (trial exh. 6081). . Lincoln Electric, \"Procedure Handbook of Arc Welding,\" at 1-27 (11th ed. 1957) (trial exh. 487) (emphasis added). Lincoln first made this statement in an earlier edition of the handbook and reiterated it in subsequent editions for at least the next 16 years. See trial tr. at 656-58 (Feb. 11, 2008); id. at 1313 (Feb. 14, 2008). . See trial tr. at 1315-19 (Feb. 14, 2008) (discussion of documents showing that the animals used in the cited research had about a 10% death rate and 50% injury rate; and that Mr. Lincoln had parts of the research article rewritten). . See trial tr. at 2937-48 (Feb. 27, 2008) (discussing Lincoln's use of this article); trial exh. 230 (article) (emphasis added). . See J. Caprarola, et al., “Welding Industry to Use Caution Label on Filler Metal Packages,” Welding Journal (August 1967) (trial exh. 890) (“Precautionary statements such as the one being employed by the welding industry are now appearing on packages of cigarettes, household cleaners, pharmaceutical products, and even on such seemingly innocuous products as children's toys and wearing apparel.”). . See, e.g., trial exh. 2845 (ANSI Z49.11967), trial exh. 2847 (ANSI Z49.1-1983), trial exh. 6057 (ANSI Z49.1-1994); see trial tr. at 2953 (Feb. 27, 2008) (Lincoln representative agreeing that \"none of the editions” of ANSI Z49.1 \"say anything about the risk of neurological injury from manganese in welding fume”). See also footnote 147, infra (discussing ANSI Z49.1). . Letter from R. Shutt to P. Shepard at 1 (June 7, 1967) (trial exh. 233). . Id. . Internal memo to file from Arcos Corp.’s R.D. Thomas (Jan. 30, 1967) (trial exh. 232) (emphasis added). See also Letter from AWS Technical Director Edward Fenton to AWS Secretary D.S. Duvall at 1 (Oct. 11, 1967)" }, { "docid": "266706", "title": "", "text": "to jury). .Although the standard industry warning adopted in 1967 by the American Welding Society used the phrase \"avoid breathing these fumes and gases,” defendant Air-co/BOC’s labels stated \"avoid excessive breathing of these fumes and gases,” while defendant Lincoln's labels stated \"avoid breathing concentrations of these fumes and gases.” See trial exhs. 5487, 2055 (emphasis added). . Toole, 999 F.2d at 1436. . Hobart MSDS No. TRTW for Tubular Arc Welding Electrodes at 4 (July 1999) (trial exh. 2048); see Lincoln Electric MSDS No. USM349 for AWS E11018M electrodes at 2 (Mar. 15, 1993) (trial exh. 2059) (noting that \"short term (acute) overexposure to welding fumes may result in discomfort such as metal fume fever”). . Defendants' own warnings expert, Dr. Eric Shaver, co-wrote a chapter in Michael S. Wogalter, Handbook of Warnings (2006), and described the Handbook as the \"main resource” in the field. . Wogalter's Handbook of Warnings at 56 (2006) (trial exh. 5433c). . AWS A5 Task Group on Warning Labels Meeting Minutes at 3 (Mar. 7, 1979) (trial exh. 128). . NEMA Ad Hoc Committee on Warning Labels Meeting Minutes at 5 (Jan. 11, 1979) (trial exh. 123). . Letter Ballot from Marv Kennebeck to AWS Safety and Health Executive Committee (Jan. 4, 1985) (trial exh. 207). . Internal ESAB memorandum from Mario Amata to Stan Ferree (Nov. 18, 2002) (trial exh. 274). The MSDSs used by the other defendants also gave little or no hint that the symptoms of overexposure to manganese were more than transient. See, e.g., ESAB/A1-loy Rods Atom Arc MSDS (1993) (trial exh. 3318) (\"Short-term (acute) overexposure to welding fumes may result in discomfort such as: dizziness, nausea, or dryness or irritation of nose, throat, or eyes”); Airco/BOC 11018M MSDS (1979) (same); Lincoln E7018 MSDS (1999) (trial exh. 3109) (\"Manganese overexposure can affect the central nervous system resulting in impaired speech and movement”). .As plaintiffs pointed out at trial, the small size of the print on the defendants' warnings, and their placement on the bottom of the containers, may also be seen as evidence of efforts to \"soften the impact” of the" }, { "docid": "266678", "title": "", "text": "at 27 (trial exh. 1562) (emphasis added). . Id. at 65. Defendants’ documents also suggest that the manganese content in weld ing fumes can be as much as 10 times greater than the manganese content in the welding consumable, itself. See also trial tr. at 627 (Feb. 11, 2008) (testimony of Lincoln representative agreeing that “manganese in welding rod ... actually increases by five or sixfold when it goes from rod to fume”). . Lincoln Powerpoint presentation at 12 (2004) (trial exh. 6112). . AWS Safety & Health Committee Meeting minutes at 5 (May 20, 1981) (trial exh. 1647). Without exception, all of the meeting minutes and other documents that were sent to or from trade organizations (such as the American Welding Society) (\"AWS”) and National Electrical Manufacturers Association \"(NEMA”) that are cited in this opinion were also received or sent by defendants’ managerial employees, who were and are members of those organizations. . See trial tr. at 1188-91 (Feb. 14, 2008) (review of testimony of Lincoln representatives Marie Quintana and Kenneth Brown that there is no known safe level of exposure to manganese in welding fume, and/or that the level at which exposure becomes unsafe is not known); see AWS Fumes and Gases Committee Meeting Minutes at 2 (Oct. 24, 2001) (noting that the United Kingdom had recently issued \"a Chemical Hazard Alert Notice for manganese that eliminated the occupational exposure limit because they do not believe a safe level is known”) (trial exh. 81). . Trial tr. at 1192-96 (Feb. 14, 2008). Evidence was presented showing that defendants have been aware for decades that welding fume exposure could cause Manganese-Induced Parkinsonism (\"MIP”). In 1979, for example, a widely-distributed AWS literature review noted that “[plotential exposure to manganese occurs whenever this metal is used in electrode coatings or in electrode wire,” and that manganese is \"poisonous to the nervous system.” American Welding Society, \"Effects of Welding on Health,” at xix (1979) (trial exh. 2940). This literature review went on to state that the “observation that manganism resembles Parkinson's disease deserves emphasis. Although no data on the prevalence of parkinsonism" }, { "docid": "266702", "title": "", "text": "(trial exh. 1648). Dr. Ward also testified that the study did not take place due to lack of available funding. Ward depo. at 276 (June 15, 2005). . In re Welding Fume Prods. Liab. Litig., 2005 WL 1868046 at *36 (N.D.Ohio Aug. 8, 2006). . Id. . Ruth v. Lincoln Elec. Co., case no. 04-CV-18912, docket no. 183 at 30-31 (N.D.Ohio Feb. 7, 2006) (emphasis added). . In re Welding Fume Prods. Liab. Litig., 534 F.Supp.2d 761, 762 (N.D.Ohio 2008). . Trial tr. at 2336 (Feb. 25, 2008). . Id. at 1713 (Feb. 20, 2008). . Id. at 522 (Feb. 11, 2008). .Id. at 500-07 (Dr. Bums summarizing the US-PHS study and quoting the UN-WHO study); see trial exh. 1547 (UN-WHO study); see also trial tr. at 582 (quoting from page 50 of the US-PHS study: \"Manganism has been documented in welders and in workers exposed to high levels of manganese dust or fumes in mine and foundries.”). .Id. at 2242 (Feb. 25, 2008). . Id. at 620-21 (Feb. 11, 2008). Dr. Hurtig added that he has seen such cases himself. . See trial tr. at 2929-30 (Feb. 27, 2008) (quoting Clark & Trojanowski, Neurodegenerativa Diseases at 10 (2000)). \"Bradykinesia” means slowness of movement, while \"dystonia” refers to involuntary, sustained muscle contractions, which result in abnormal postures and twisting motions. . Id. at 2931 (quoting Smargiasi & Mutti, \"Peripheral Biomarkers and Exposure to Manganese,” 20 Neurotoxicology 401, 401 (1999)). . 29 U.S.C. § 651 et seq. . 29 U.S.C. § 651(b). . Id. § 651(b)(3). . See 39 Fed. Reg. 23502, 23738-50 (June 27, 1974) (promulgating 29 C.F.R. § 1910.252). . Id. at 23748 (promulgating 29 C.F.R. § 1910.252(f)(l)(v)(a)). The 1967 version of ANSI Standard Z49.1 is 67 pages long, not including table of contents or appendices. \"ANSI” refers to the American National Standards Institute, and \"Z49.1-1967” refers to the 1967 version of their “Standard Z49.1,” entitled \"Safety in Welding, Cutting, and Allied Processes.” .Due to re-numbering of subsections over the years, the current regulation is at 29 C.F.R. § 1910.252(c)(l)(iv)(A) (2008). . MIL-spec MIL-E-24403A(SH), § 5.3.1 (Dec. 21, 1981)" }, { "docid": "266681", "title": "", "text": "Barnes to William Esch (Feb. 24, 1992) (trial exh. 260). Other such evidence is referred to throughout the rest of this opinion. . AWS Fumes and Gases Committee meeting minutes at 3 (Oct. 17, 1994) (trial exh. 920). . See also Jowers trial tr. at 1203-06 (Feb. 14, 2008) (testimony regarding trial exh. 33, a 1995 letter written by Caterpillar, Inc. to the Ferroalloys Association arguing against reduction of the TLV, because \"approximately 50% [of Caterpillar welders] would be over exposed to manganese at [a TLV] of 0.2”) (same exhibit also discussed at In re Welding Fume Prods. Liab. Litig., 526 F.Supp.2d 775, 790 (N.D.Ohio 2007)). . See trial tr. at 1199-1204, 1218-26 (Feb. 14.2008) (testimony of Mr. Kahane regarding the OSHA database). . Trial tr. at 1197 (Feb. 14, 2008). . Id. at 1198, 1207-08. Indeed, Lincoln's representative testified at trial that he \"wouldn't be surprised at all if welders responsibly using [mild steel welding rods] during the '70s, '80s and early '90s were exposed to over 0.2 milligrams per cubic meter of manganese.” Trial tr. at 728 (Feb. 12, 2008). . Id. at 2966 (Feb. 27, 2008). . See trial tr. at 1996-97 (Feb. 21, 2008); ESAB Atom Arc 7018 Warning Label and Dual Shield 7100 Ultra Warning Label (trial exh. 9221). Similarly, the 1987 Material Safety Data Sheet that accompanied Hobart's welding rods stated: \"Long term overexposure to manganese compounds may affect the central nervous system. Symptoms include muscular weakness, tremors similar to Parkinson’s disease. Behavioral changes and changes in handwriting may also appear. Employees exposed to manganese compounds should get quarterly medical examinations for early detection of manganese poisoning.” Trial exh. 3228 at 2. . Letter from Tom Griffiths (Lincoln) to Brady Cisco (Vulcan Materials) at 1 (March 25, 1996) (trial exh. 344). The entire first paragraph of the letter reads: “Medical studies link welding fume exposure to neurological conditions resembling Parkinson's disease. Exposure to welding fumes in confined or poorly ventilated spaces is especially dangerous. These diseases can occur when certain toxins attack the central nervous system. Welding fumes contain one such toxin known to" }, { "docid": "19186067", "title": "", "text": "strongly that these attempts to reconstruct the welder-plaintiff's \"manganese dose” suffered from numerous procedural and substantive infirmities. The Court concluded the expert's studies were admissible only \"for purposes of supplying [reference] ranges or data points” — the expert could not express an opinion “that [the] exact air ranges or exact air numbers [obtained in the \"work practice simulation studies”] are meant to replicate any particular day during Mr. Solis’ welding experience.” Id. at 1420. See also id. at 1650 et seq. (June 9 & 12, 2008) (Paskal’s trial testimony regarding simulation studies) . AWS Fumes and Gases Committee meeting minutes at 3 (Oct. 17, 1994) (trial exh. 920) (emphasis added). . See In re Welding Fume Prods. Liab. Litig., 245 F.R.D. 279, 316 (N.D.Ohio 2007) (in the context of denying certification of a medical monitoring class, reviewing plaintiffs’ evi dence and concluding that “at least some defendants have recognized that some welder-plaintiffs: (1) are routinely exposed to manganese in welding fumes above safe threshold limits; [and] (2) thereby suffer an increased risk of developing neurological illness due to exposure to welding fumes”) (footnotes omitted). .Letter from Caterpillar’s H.K. Thompson to The Ferroalloys Association’s Edward J. Klinghorn (Feb. 17.1995) (trial exh. 33) (emphasis added). . See generally expert report of Mr. Kahane (docket no. 98); Defendants’ Motion to Exclude Certain Testimony of David Kahane (docket no. 184). . Id. Mr. Kahane's testimony at trial regarding the OSHA background evidence and Byers’ individual welding experiences tracked his expert report and deposition testimony. See trial tr. at 1120 et seq. (Nov. 7 & 10, 2008). . Expert report of Mr. Kahane (docket no. 98) at 9 (emphasis added) (also stating “it is probable to a reasonable degree of certainty, applying industrial hygiene principles, that exceeding TLV's [sic] was more than a random occurrence” during Byers' career). . Borg-Warner, 232 S.W.3d at 773 (quoting David L. Eaton, Scientific Judgment and Toxic Torts — a Primer in Toxicology for Judges and Lawyers, 12 J. Law & Policy 5, 39 (2003)) (emphasis added). . Stephens, 239 S.W.3d at 314-15. . Id. at 315. . Adickes v." } ]

[ { "docid": "9890117", "title": "", "text": "or a related party,”' 11 U.S.C. § 524(g)(4)(A)(ii)(III); or “the third party’s involvement in a transaction changing the corporate structure, or in a loan or other financial transaction affecting the financial condition, of the debtor or a related party.” 11 U.S.C. § 524(g)(4)(A)(ii)OV). The Plan proponents do not contend that Basic and Lummus are “liable for the conduct of, claims against, or demands on” Combustion Engineering, as required by § 524(g)(4)(A)(ii). As the Bankruptcy Court correctly noted, “[t]he Debtor owned [Basic and Lummus]; they did not own Debtor.” In re Combustion Eng’g, 295 B.R. at 482 n. 41. Certain claims against Basic and Lummus allege independent liability, wholly separate from any liability involving Combustion Engineering. As the plain language of the statute makes clear, § 524(g)(4)(A) does not permit the extension of a channeling injunction to include these non-derivative third-party actions. B. Section 105(a) Recognizing the limitations imposed by § 524(g), the Bankruptcy Court instead relied upon its equitable powers under § 105(a) to expand the scope of the channeling injunction. Bankruptcy courts are “courts of equity, empowered to invoke equitable principles to achieve fairness and justice in the reorganization process.” Schwartz v. Aquatic Dev. Group, Inc. (In re Aquatic Dev. Group, Inc.), 352 F.3d 671, 680-81 (2d Cir.2003) (citation omitted); see also Local Loan Co. v. Hunt, 292 U.S. 234, 240, 54 S.Ct. 695, 78 L.Ed. 1230 (1934) (“[C]ourts of bankruptcy are essentially courts of equity, and-their proceedings inherently proceedings in equity.”). As courts of equity, bankruptcy courts “have broad authority to modify creditor-debtor relationships.” United States v. Energy Res. Co., 495 U.S. 545, 549, 110 S.Ct. 2139, 109 L.Ed.2d 580 (1990); see also Official Comm. of Unsecured Creditors of Cybergenics Corp. ex rel. Cybergenics Corp. v. Chinery, 330 F.3d 548, 568 (3d Cir.2003) (en banc) (describing bankruptcy court’s equitable powers to “craft flexible remedies that, while not ex pressly authorized by the Code, effect the result the Code was designed to obtain”). Section 105(a) of the Bankruptcy Code expressly provides bankruptcy courts the equitable power to “issue any order, process, or judgment that is necessary or appropriate to" } ]

[ { "docid": "21085830", "title": "", "text": "notice of a bankruptcy case must act diligently to protect its interest, despite the lack of formal notice. In re Marino, 195 B.R. 886, 893 (Bankr.N.D.Ill.1996) (“A creditor, who knows of the proceeding but has not received formal notice, should be prevented from standing back and allowing the bankruptcy action to proceed.... ”). A creditor’s informal actual knowledge of a pending bankruptcy case is sufficient to satisfy due process. See In re Pence, 905 F.2d 1107, 1109 (7th Cir.1990). B. Time for Filing Proofs of Claim Federal Rule of Bankruptcy Procedure 3003(c) governs the time for filing a proof of claim in a Chapter 11 case. As a routine measure in a Chapter 11 case, a bankruptcy court must set a bar date for all creditors to file their proofs of claim. See Fed. R. Bankr.P. 3003(c)(2). Bankruptcy Rule 3002(c)(2) provides: Any creditor or equity security holder whose claim or interest is not scheduled or scheduled as disputed, contingent, or unliquidated shall file a proof of claim or interest within the time prescribed by subdivision (c)(3) of this rule; any creditor who fails to do so shall not be treated as a creditor with respect to such claim for purposes of voting and distribution. Fed. R. Bankr.P. 3002(c)(2). Bankruptcy Rule 3003(c)(3), in turn, provides in relevant part, “[t]he court shall fix and for cause shown may extend the time within which proofs of claim or interest may be filed.” Fed. R. Bankr.P. 3003(c)(3) (emphasis supplied). After the bar date has passed, a creditor may move the bankruptcy court for an extension of time to file its proof of claim. See Fed. R. Bankr.P. 9006(b)(1). The meaning of “cause” in Bankruptcy Rule 3003(c)(3) is elaborated in Bankruptcy Rule 9006(b)(1). See Aargus Polybag Co., Inc. v. Commonwealth Edison Co., Inc. (In re Aargus Polybag Co., Inc.), 172 B.R. 586, 589 (Bankr.N.D.Ill.1994). Bankruptcy Rule 9006(b)(1) provides in part: [W]hen an act is required or allowed to be done at or within a specified period by these rules or by a notice given thereunder or by order of court, the court for cause shown" }, { "docid": "14049875", "title": "", "text": "of claim or interest may be filed.” Fed. R. Bankr.P. 3001(c)(3). The deadline in a given proceeding is referred to as the \"bar date.” . See 46 App. U.S.C. § 688 (\"Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law.”). . The briefs on appeal refer to Hefta’s injury ’ as having occurred on June 28, 2000. . But see infra note 4, citing exceptions contained in Bankruptcy Rule of Procedure Rule 5005(c). . We disregard for purposes of this discussion the general requirement that recognition of an informal proof of claim be equitable, a requirement inescapable in courts of equity like federal bankruptcy court. See In re Combustion Eng’g, Inc., 391 F.3d 190, 235 (3d Cir.2004); see also Local Loan Co. v. Hunt, 292 U.S. 234, 240, 54 S.Ct. 695, 78 L.Ed. 1230 (1934) (\"[Cjourts of bankruptcy are essentially courts of equity, and their proceedings inherently proceedings in equity.”). . Rule 5005(a)(1) provides, in relevant part: [PJroofs of claim ... and other papers required to be' filed by these rules, except as provided in 28 U.S.C. § 1409, shall be filed with the clerk in the district Where the case under the Code is pending. The judge of that court may permit the papers to be filed with the judge, in which event the filing date shall be noted thereon, and they shall be forthwith transmitted to the clerk. Fed. R. Bankr.P. 5005(a)(1). See also Official Bankruptcy Form 10, 11 U.S.C. (\"This form must be filed with the clerk of the bankruptcy court where the bankruptcy case was filed.”). Rule 5005(c) provides certain limited exceptions: A paper intended to be filed with the clerk but erroneously delivered to the United States trustee, the trustee, the attorney for the trustee, a bankruptcy judge, a district judge, or the clerk of the district court shall, after the date of its receipt has been noted thereon, be transmitted forthwith to the clerk of the bankruptcy court ... In the interest of justice, the court may order that" }, { "docid": "18047693", "title": "", "text": "of precedent, and the fact that Anwar’s untimely filing stemmed from difficulty with an electronic filing system is immaterial. Paper filing systems present their own unique opportunities for parties to miss their deadlines; as the bankruptcy court in this case noted, the Arizona bankruptcy court’s electronic filing system made it easier for Anwar’s counsel to timely file the complaints from his office in Oregon. In short, absent unique and exceptional circumstances not present here, we do not inquire into the reason a party failed to file on time in assessing whether she is entitled to an equitable exception from FRBP 4007(c)’s filing deadline; under the plain language of the rules and our controlling precedent, there is no such exception. C Contrary to Anwar’s assertion, the Arizona bankruptcy court’s local rules do not provide relief. Pursuant to FRBP 9029(a)(1), federal district courts may promulgate local rules of bankruptcy procedure “which are consistent with — but not duplicative of — Acts of Congress and [the FRBP] and which do not prohibit or limit the use of the Official Forms.... ” Fed. R. Bankr.P. 9029(a)(1). In addition, FRBP 5005(a)(2) authorizes district courts to promulgate local bankruptcy rules that require electronic filing, provided such rules comport with technical standards established by the Judicial Conference of the United States and allow for “reasonable exceptions.” Fed. R. Bankr.P. 5005(a)(2). The bankruptcy court for the District of Arizona, as noted above, has exercised its authority to establish an electronic filing system and has promulgated local procedural rules governing its use. Of relevance to this appeal, Local Rule of Bankruptcy Procedure (“LRBP”) 5005-2(n) provides that an attorney or party whose electronic filing “is untimely or otherwise improper may seek appropriate relief from the bankruptcy court upon a showing of good cause or excusable neglect.” Local R. Bankr.P. 5005-2(n). Anwar argues that this local rule gives the bankruptcy court discretion to consider untimely non-dischargeability complaints where the late filing results from technical difficulty with the electronic filing system. However, a local rule of bankruptcy procedure cannot be applied in a manner that conflicts with the federal rules. See Pradier" }, { "docid": "10560267", "title": "", "text": "within the exceptions of Bankruptcy Rule 5005(b). IV. CONCLUSION Because Nutmeg has not established that it has filed an informal proof of claim, its motion for relief to amend such a proof of claim must be, and hereby is, denied. . Rule 3003. Filing Proof of Claim or Equity Security Interest in Chapter 9 Municipality or Chapter 11 Reorganization Cases. (c) Filing Proof of Claim. (2) Who Must File. Any creditor, or equity security holder whose claim or interest is not scheduled or scheduled as disputed, contingent, or unliquidated shall file a proof of claim or interest within the time prescribed by subdivision (c)(3) of this rule; any creditor who fails to do so shall not be treated as a creditor with respect to such claim for the purposes of voting and distribution. (3) Time for Filing. The court shall fix and for cause shown may extend the time within which proofs of claim or interest may be filed. Bankr.R. 3003(c)(2) & (3). . A document submitted by Nutmeg dated after the bar date has not been considered. . Rule 5005. Filing of Papers. (a) Filing. The proofs of claim or interest, complaints, motions, applications, objections and other papers required to be filed by these rules, except as provided in 28 U.S.C. § 1409, shall be filed with the clerk in the district where the case under the Code is pending. The judge of that court may permit the papers to be filed with the judge, in which event the filing date shall be noted thereon, and they shall be forthwith transmitted to the clerk. (b) Error in Filing. A paper intended to be filed but erroneously delivered to the trustee, the attorney for the trustee, a bankruptcy judge, a district judge, or~-the clerk of the district court shall, after the date of its receipt has been noted thereon, be transmitted forthwith to the clerk of the bankruptcy court. In the interest of justice, the court may order that the paper shall be deemed filed as of the date of its original delivery. Bankr.R. 5005." }, { "docid": "1271160", "title": "", "text": "with the trustee. Bankruptcy Rule 3002 unambiguously requires that a proof of claim be filed in accordance with Rule 5005. In turn, Rule 5005(a) expressly and specifically provides that proofs of claim and other papers required to be filed, with exceptions not pertinent here, shall be filed with the clerk in the district where the case under the Code is pending. In the instant case only the Bank’s motion to lift stay, which by itself does not constitute an informal proof of claim, was filed with the clerk of the bankruptcy court. The Foreclosure Documents and the letter to the Debtor’s attorney were never filed with the clerk of the bankruptcy court. This does not end the Court’s inquiry, however. The matter becomes somewhat more complicated when Rule 5005(b) and related decisions are considered. Rule 5005(b) provides that a paper intended to be filed, but erroneously delivered to the trustee, the attorney for the trustee, a bankruptcy judge, a district judge, or the clerk of the district court shall, after the date of its receipt has been noted thereon, be transmitted forthwith to the clerk of the bankruptcy court. In the interest of justice, the court may order that the paper shall be deemed filed as of the date of the original delivery. Bankruptcy Rule 5005(b). The Bank relies heavily on In re Sambo’s Restaurants, Inc., 754 F.2d 811, 12 C.B. C.2d 173, 12 B.C.D. 1177 (9 Cir.1985), where a widow’s wrongful death action in a U.S. District Court in Alabama together with her joint motion with the Debtor to transfer the action to U.S. Bankruptcy Court in California were found to constitute an informal proof of claim. The Ninth Circuit construed Rule 5005(b) to find that the misdelivery exception had been met, relying on its earlier decision in In re Franciscan .Vineyards, Inc., 597 F.2d 181, 5 B.C.D. 476 (9th Cir.1979) (per curiam), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980). Franciscan Vine yards had held that a letter to the trustee enclosing delinquent tax bills was a sufficient informal proof of claim because it" }, { "docid": "14049874", "title": "", "text": "whether the neglect of respondents and their counsel was excusable.”). Thus, the third factor strongly disfavors Hefta. With respect to the fourth and final Pioneer factor, there is no reason to believe that Hefta ever acted in bad faith. But nor was he so careful or vigilant as to overcome the weight of the previous three factors — especially the second. Accordingly, the Bankruptcy Court did not abuse its discretion by concluding that Hefta’s failure to file his claim by the Bar Date does not qualify as “excusable neglect.” See Fed. R. Bankr.P. 9006(b)(1). Therefore, there is no cause to lift the automatic stay imposed under 11 U.S.C. § 362(d)(1). Like the District Court, we will affirm the orders of the Bankruptcy Court denying Hefta’s Motion for Relief from Automatic Stay, his Motion for Enlargement of Time to File Proof of Claim, and his Motion to Reconsider and Vacate the previous orders. .Federal Rule of Bankruptcy Procedure 3001(c)(3) provides that, in Chapter 11 proceedings, a bankruptcy court \"shall fix ... the time within which proofs of claim or interest may be filed.” Fed. R. Bankr.P. 3001(c)(3). The deadline in a given proceeding is referred to as the \"bar date.” . See 46 App. U.S.C. § 688 (\"Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law.”). . The briefs on appeal refer to Hefta’s injury ’ as having occurred on June 28, 2000. . But see infra note 4, citing exceptions contained in Bankruptcy Rule of Procedure Rule 5005(c). . We disregard for purposes of this discussion the general requirement that recognition of an informal proof of claim be equitable, a requirement inescapable in courts of equity like federal bankruptcy court. See In re Combustion Eng’g, Inc., 391 F.3d 190, 235 (3d Cir.2004); see also Local Loan Co. v. Hunt, 292 U.S. 234, 240, 54 S.Ct. 695, 78 L.Ed. 1230 (1934) (\"[Cjourts of bankruptcy are essentially courts of equity, and their proceedings inherently proceedings in equity.”). . Rule 5005(a)(1) provides, in relevant part: [PJroofs of claim" }, { "docid": "14049866", "title": "", "text": "the two-part test in Thompson reflects significant changes in the administration of bankruptcy over the last nine decades. Not only are modern bankruptcy courts themselves creatures of intervening statutes, but also, bankruptcy proceedings today, including those initiated by American Classic, are of a scale and complexity unforeseen in 1915. Bankruptcy proceedings are now governed by elaborate rules of procedure designed to make that scale and complexity manageable. Two requirements in the five-part test are absent in Thompson: that informal proofs of claim must be in writing and that they must be filed with the bankruptcy court. Those two new factors are justified, however, by specific rules of bankruptcy procedure. First, Rule 3001(a) defines a proof of claim as “a written statement setting forth a creditor’s claim.” Fed. R. Bankr.P. 3001(a). Second, Rule 5005(a)(1) provides, with certain specified exceptions, that proofs of claim are to be filed with the clerk of the bankruptcy court. See Fed.. R. Bankr.P. 5005(a)(1). Those rules apply to all proofs of claim, whether formal or informal, and are reflected in the five-part test. Because the Rules of Bankruptcy Procedure are binding, the five-part test supercedes the Thompson test. See In re Gershenbaum, 598 F.2d 779, 781 n. 4 (3d Cir.1979) (“Bankruptcy Rules ... super-ceded interpretive case law dealing with procedure.”); see also 28 U.S.C.A. § 2075; Weiss v. Regal Collections, 385 F.3d 337, 349 n. 21 (3d Cir.2004). More generally, we note that the substantive requirements of a proof of claim, including the notice requirement, cannot be significantly relaxed for “informal” proofs of claims. The distinction between formal and informal proofs of claim refers only, as the terms suggest, to their form, not their substance. See Fed. R. Bankr.P. 5005(a)(1) (“The clerk shall not refuse to accept for filing any petition or other paper presented for the purpose of filing solely because it is not presented in proper form as required by these rules or any local rules or practices.”). All proofs of claim must “conform substantially to the appropriate Official Form.” Fed. R. Bankr.P. 3001(a). Official Bankruptcy Form 10, 11 U.S.C., defines a “proof of" }, { "docid": "14049876", "title": "", "text": "... and other papers required to be' filed by these rules, except as provided in 28 U.S.C. § 1409, shall be filed with the clerk in the district Where the case under the Code is pending. The judge of that court may permit the papers to be filed with the judge, in which event the filing date shall be noted thereon, and they shall be forthwith transmitted to the clerk. Fed. R. Bankr.P. 5005(a)(1). See also Official Bankruptcy Form 10, 11 U.S.C. (\"This form must be filed with the clerk of the bankruptcy court where the bankruptcy case was filed.”). Rule 5005(c) provides certain limited exceptions: A paper intended to be filed with the clerk but erroneously delivered to the United States trustee, the trustee, the attorney for the trustee, a bankruptcy judge, a district judge, or the clerk of the district court shall, after the date of its receipt has been noted thereon, be transmitted forthwith to the clerk of the bankruptcy court ... In the interest of justice, the court may order that a paper erroneously delivered shall be deemed filed with the clerk ... as of the date of its original delivery. Fed. R. Bankr.P. 5005(c). . Because the second prong under the five-part test is the first prong of Thompson, we note that Hefta's letter would not qualify as an informal proof of claim under that test either. . Because we concluded that the letter fails the second part of the five-part test, we need not consider whether the February 7, 2002 letter would meet the other four factors." }, { "docid": "21972060", "title": "", "text": "not timely filed. The Court accepts the testimony by the Debtor that the credit counseling occurred on the day and prior to the exact time the petition was filed. The certificate was not filed in accordance with Rule 1007, but by court order the Court granted the Debtor an extension until November 11, 2005, to file the certificate and cure other deficiencies. On November 11, 2005, the Debtor filed a motion to extend the time to file the certificate, and the original certificate was subsequently filed on November 16, 2005. The motion to extend the original extension was heard with the other motions on November 18, 2005, and taken under advisement. The Code does not provide for mandatory dismissal of a case under these circumstances; therefore, the failure of the Debtor to file a certificate at the time he filed his voluntary petition is not automatically fatal to his case. See 11 U.S.C. § 707(a) (2000) (“The court may dismiss a case under this chapter only after notice and a hearing and only for cause ... ”). The Debtor did obtain the necessary credit counseling prior to filing the petition, did receive a court-ordered extension of time to cure the deficiencies in his petition, and did request a further extension of time from the Court before the expiration of the original extension period. Furthermore, the absence of a credit counseling certificate, like the absence of a debtor’s signature on a pleading, is a matter of form not substance. Federal Rule of Bankruptcy Procedure 5005 states, in relevant part: “The clerk shall not refuse to accept for filing any petition or other paper presented for the purpose of filing solely because it is not presented in proper form as required by these rules or any local rules or practices.” Fed. R. Bankr.P. 5005(a)(1). The Advisory Committee Notes to the 1993 Amendments to Rule 5005 declares: Subdivision (a) is amended to conform to the 1991 amendment to Rule 5(e) F.R.Civ.P. It is not a suitable role for the office of the clerk to refuse to accept for filing papers not conforming to" }, { "docid": "8943562", "title": "", "text": "ed. 2014). Section 501(a) provides that: “[a] creditor or an indenture trustee may file a proof of claim. An equity security holder may file a proof of interest.” 11 U.S.C. § 501(a). Fed. R. Bankr.P. 3001(a) provides that: “[a] proof of claim is a written statement setting forth a creditor’s claim. A proof of claim shall conform substantially to the appropriate Official Form.” Fed. R. Bankr.P. 3001(f). Moreover, Fed. R. Bankr.P. 3004 provides that: “[i]f a creditor does not timely file a proof of claim under Rule 3002(c) or 3003(c), the debtor or trustee may file a proof of claim within 30 days after the expiration of the time for filing claims prescribed by Rule 3002(c) or 3003(c), whichever is applicable. The clerk shall forthwith give notice of the filing to the creditor, the debtor and the trustee.” Fed. R. Bankr.P. 3004. Section 502(a) provides that: “[a] claim or interest, proof of which is filed under section 501 of this title, is deemed allowed, unless a party in interest, including a creditor of a general partner in a partnership that is a debtor in a case under chapter 7 of this title, objects.” 11 U.S.C. § 502(a). Fed. R. Bankr.P. 3001(f) provides: “[a] proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim.” Thus, claims for which proper proofs have been filed are deemed allowed unless an objection is filed. Parties in interest that may object to proofs of claims are Trustees, debtors in chapters 12 and 13, and debtors in possession in chapter 11. See Alan N. Resnick & Henry J. Sommer, 4 Collier on Bankruptcy ¶ 502.02[2] (16th ed. 2014). The Federal Rules of Bankruptcy Procedure and the Bankruptcy Code do not establish a bar date or deadline for filing objections to claims and confirmation of a plan does not create a bar to such objections. See Alan N. Resnick & Henry J. Sommer, 8 Collier on Bankruptcy ¶ 1327.02[2] (16th ed. 2014). Section 1302(b)(1) provides that the Trustee shall, “perform the duties specified" }, { "docid": "18047694", "title": "", "text": "Official Forms.... ” Fed. R. Bankr.P. 9029(a)(1). In addition, FRBP 5005(a)(2) authorizes district courts to promulgate local bankruptcy rules that require electronic filing, provided such rules comport with technical standards established by the Judicial Conference of the United States and allow for “reasonable exceptions.” Fed. R. Bankr.P. 5005(a)(2). The bankruptcy court for the District of Arizona, as noted above, has exercised its authority to establish an electronic filing system and has promulgated local procedural rules governing its use. Of relevance to this appeal, Local Rule of Bankruptcy Procedure (“LRBP”) 5005-2(n) provides that an attorney or party whose electronic filing “is untimely or otherwise improper may seek appropriate relief from the bankruptcy court upon a showing of good cause or excusable neglect.” Local R. Bankr.P. 5005-2(n). Anwar argues that this local rule gives the bankruptcy court discretion to consider untimely non-dischargeability complaints where the late filing results from technical difficulty with the electronic filing system. However, a local rule of bankruptcy procedure cannot be applied in a manner that conflicts with the federal rules. See Pradier v. Elespuru, 641 F.2d 808, 810 (9th Cir.1981). District and bankruptcy courts have been delegated authority to adopt local rules prescribing the conduct of business but the rules must be consistent with the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure. Sigma Micro Corp. v. Healthcentral.com (In re Healthcentral.com), 504 F.3d 775, 784 (9th Cir.2007). Local bankruptcy rules may not “enlarge, abridge, or modify any substantive right.” Sunahara v. Burchard (In re Sunahara), 326 B.R. 768, 782 (9th Cir. BAP 2005) (internal quotation marks and citation omitted). Because the federal bankruptcy rules do not permit an “excusable neglect” exception to FRBP 4007(c)’s filing deadline, LRBP 5005-2(n) cannot provide Anwar relief. It is of no moment that LRBP 5005-2(n) closely tracks a model rule of local bankruptcy procedure developed by the Judicial Conference of the United States. A model rule is, by definition, only an advisory template. By itself, it has no legal force and cannot trump the Federal Rules of Bankruptcy Procedure. Ill We decline Anwar’s invitation to revise the Federal Rules of Bankruptcy" }, { "docid": "18496266", "title": "", "text": "Owens, 67 B.R. 418, 423 (Bkrtcy.E.D.Pa.1987); In re Key, 64 B.R. 786, 788 (Bkrtcy.M.D.Tenn.1986); In re Street, 55 B.R. 763, 766 (Bkrtcy.App. 9th Cir.1985); In re Ryan, 54 B.R. 105, 106 (Bkrtcy.E.D.Pa.1985). . When the Evanston Motor Co., case was decided former Bankr.R. 509(c) was applicable and provided as follows: Bankruptcy Rule 509(c) provides as follows: Error in Filing. A paper intended to be filed but erroneously delivered to the trustee or receiver, or the attorney for either of them, or to the district judge, referee, or clerk of the district court, shall, after the date of its receipt has been noted thereon, be transmitted forthwith to the proper person. In the interest of justice, the court may order that the paper shall be deemed filed as of the date of its original delivery. Bankr.R. 509(c) was subsequently abolished, and replaced by Bankr.R. 5005(b) which now provides as follows: (b) Error in Filing. A paper intended to be filed but erroneously delivered to the trustee, the attorney for the trustee, a bankruptcy judge, a district judge, or the clerk of the district court shall, after the date of its receipt has been noted thereon, be transmitted forthwith to the clerk of the bankruptcy court. In the interest of justice, the court may order that the paper shall be deemed filed as of the date of its original delivery. The case at bar does not involve an “error in filing”, because the objection to confirmation by the creditor was correctly filed with the Bankruptcy Clerk pursuant to Bankr.R. 5005(a), and thus Bankr.R. 5005(b) does not apply here. However, the Seventh Circuit in the Evanston Motor Co., case did state that \"for the purposes of appeal, we accept the Bankruptcy Judge’s determination that the August 18, 1980 letter may be interpreted as a proof of claim under all the circumstances appearing before him.” Id. 735 F.2d at 1031. The Court further stated, “where delivery of this proof of claim to the trustee may have resulted from an error in judgment, there was no erroneous delivery under the plain meaning of Rule 509(c).”" }, { "docid": "21972061", "title": "", "text": "... ”). The Debtor did obtain the necessary credit counseling prior to filing the petition, did receive a court-ordered extension of time to cure the deficiencies in his petition, and did request a further extension of time from the Court before the expiration of the original extension period. Furthermore, the absence of a credit counseling certificate, like the absence of a debtor’s signature on a pleading, is a matter of form not substance. Federal Rule of Bankruptcy Procedure 5005 states, in relevant part: “The clerk shall not refuse to accept for filing any petition or other paper presented for the purpose of filing solely because it is not presented in proper form as required by these rules or any local rules or practices.” Fed. R. Bankr.P. 5005(a)(1). The Advisory Committee Notes to the 1993 Amendments to Rule 5005 declares: Subdivision (a) is amended to conform to the 1991 amendment to Rule 5(e) F.R.Civ.P. It is not a suitable role for the office of the clerk to refuse to accept for filing papers not conforming to requirements of form imposed by these rules or by local rules or practices. The enforcement of these rules and local rules is a role for a judge. Therefore, the Court grants the debtor’s motion to enlarge the time to file the credit counseling certificate. The Trustee’s second argument is that the Debtor was required to complete credit counseling at least one day prior to the day the petition was filed. The Trustee emphasizes the statutory language of the Bankruptcy Code stating that an individual may not be a debtor unless he has, “during a 180-day period preceding the date of the filing of the petition, ... received ... from an approved ... credit counseling agency ... an individual or group briefing ...” 11 U.S.C. § 109(h)(1) (emphasis added). The Trustee interprets the word “date” to refer to a particular calendar day, and indeed, in many applications of the law, this is the proper interpretation. See Black’s Law Dictionary 395 (6th ed.1990) (defining “date” as “The specification or mention, in a written instrument, of the time" }, { "docid": "17974166", "title": "", "text": "case to the bankruptcy court in California. The creditor did not file a proof of claim in time. After the time limit, the creditor filed a motion for leave to amend an informal claim. In affirming the District Court’s reversal of the Bankruptcy Court’s order denying the motion, the Court of Appeals held that because Sambo’s was a debtor in possession, “communications to Sambo’s were the equivalent of communications to a trustee.” Id., at 815. In the instant case, the debtor is not a debtor in possession as the debtor was in Sambo’s. Also, neither the debtor nor the trustee in the instant case was a party to the lawsuit pending in the U.S. District Court for the District of Washington. Therefore, Lees-Carney’s answer and counterclaim in the River Grain, Inc. litigation does not constitute written notice to the trustee of the nature and amount of the claim. Lees-Carney next argues that Bankruptcy Rule 5005(b) does not require an intent to file the proof of claim in the district in which the bankruptcy case is pending. Bankruptcy Rule 5005 states: (a) Filing. The petition, proofs of claim or interest, complaints, motions, applications, objections and other papers required to be filed by these rules, except as provided in 28 U.S.C. § 1473 shall be filed with the clerk of the court in which the case under the Code is pending. The judge of that court may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the clerk. (b) Error in Filing. A paper intended to be filed but erroneously delivered to the trustee, the attorney for the trustee, a bankruptcy judge, a district judge, or the clerk of the district court shall, after the date of its receipt has been noted thereon, be transmitted forthwith to the clerk of the bankruptcy court. In the interest of justice, the court may order that the paper shall be deemed filed as of the date of its original delivery. Lees-Carney asserts that in Sambo’s, the Ninth Circuit has interpreted this" }, { "docid": "18776615", "title": "", "text": "While informal proofs of claim have been held to be acceptable by the courts there also must be a proper filing in order for the claim to be deemed valid. Rule 3002(b), Bankruptcy Rules, mandates that a proof of claim or interest shall be filed in accordance with Rule 5005. Rule 5005, in turn, provides that proofs of claim or interest shall be filed with the clerk of the court in which the case under the Code is pending. Rule 5005(b) reflects: In Hoos, supra, Walsh, supra, and Fausett, supra, while no formal proof of claim had been timely filed there was evidence in the record before the court which put the court on notice of the nature of the creditor’s claim. However, in the instant case there was nothing before the court which could have put the court on notice of the Burke claim. One court has treated the issue of the validity of an informal proof of claim where there is nothing before the court evidencing the claim within the requisite time period. In In re Franciscan Vineyards, Inc., supra, the trustee objected on appeal to the district court’s order permitting the County of Napa to file an amended proof of claim after the time for filing proofs of claim had elapsed. The trustee argued that (1) a letter sent by the county to the trustee was insufficient to qualify as a proof of claim which could be amended and (2) the sending of the letter to the trustee did not qualify as a filing of the proof of claim. The Ninth Circuit rejected both arguments and, as to the latter condition, stated: (b) Error in Filing. A paper intended to be filed but erroneously delivered to the trustee, the attorney for the trustee, a bankruptcy judge, a district judge, or the clerk of the district court shall, after the date of its receipt has been noted thereon, be transmitted forthwith to the clerk of the bankruptcy court. In the interest of justice the court may order that the paper shall be deemed filed as of the date" }, { "docid": "14049867", "title": "", "text": "five-part test. Because the Rules of Bankruptcy Procedure are binding, the five-part test supercedes the Thompson test. See In re Gershenbaum, 598 F.2d 779, 781 n. 4 (3d Cir.1979) (“Bankruptcy Rules ... super-ceded interpretive case law dealing with procedure.”); see also 28 U.S.C.A. § 2075; Weiss v. Regal Collections, 385 F.3d 337, 349 n. 21 (3d Cir.2004). More generally, we note that the substantive requirements of a proof of claim, including the notice requirement, cannot be significantly relaxed for “informal” proofs of claims. The distinction between formal and informal proofs of claim refers only, as the terms suggest, to their form, not their substance. See Fed. R. Bankr.P. 5005(a)(1) (“The clerk shall not refuse to accept for filing any petition or other paper presented for the purpose of filing solely because it is not presented in proper form as required by these rules or any local rules or practices.”). All proofs of claim must “conform substantially to the appropriate Official Form.” Fed. R. Bankr.P. 3001(a). Official Bankruptcy Form 10, 11 U.S.C., defines a “proof of claim” as a “form telling the bankruptcy court how much the debtor owed a creditor at the time the bankruptcy case was filed (the amount of the creditor’s claim),” and instructs a potential creditor to specify, among other things, the date debt was incurred and the total amount of her claim, as well as to attach documents that show the debtor owes the debt claimed. In this case, Hefta’s February 7, 2002 letter to Logan fails to satisfy the modern test for an informal proof of claim. The letter fails the second prong of the five-part test, i.e., that the alleged claim contain a demand on the estate. To state a demand, it was not sufficient for Hefta merely to state that he had a claim against the Debtors arising from a work injury. “[M]ere notice of a claim alone is not to be called an informal proof of claim.” United States v. Int’l Horizons, Inc. (In re Int’l Horizons, Inc.), 751 F.2d 1213, 1217 (11th Cir.1985); see also In re A.H. Robins Co., Inc.," }, { "docid": "19802396", "title": "", "text": "5005(c) of the Federal Rules of Bankruptcy Procedure to deem its claim timely. Rule 5005(c) states: “In the interest of justice, the court may order that a paper erroneously delivered shall be deemed filed with the clerk or transmitted to the United States trustee as of the date of its original delivery.” Avnet argues that its faxed claim constitutes an “erroneous delivery” under Rule 5005(c), and the bankruptcy court abused its discretion by not accepting the claim. We disagree. Rule 5005(c) only applies where a claimant delivers a document to the wrong recipient — for example, to the trustee instead of the bankruptcy clerk or vice versa. See id. (discussing the various ways in which a paper could be erroneously delivered to the bankruptcy clerk, the trustee, the attorney for the trustee, or the bankruptcy judge, among others); Outboard Marine, 386 F.3d at 828 (“Rule 5005(c) ... grants the bankruptcy court equitable discretion to backdate papers like a proof of claim that are ‘erroneously delivered’ to the wrong official in a bankruptcy proceeding.” (emphasis added)). The rule does not address situations where the claimant makes a delivery using the wrong method, and we are unaware of a single case in which a court relied upon this rule to excuse a claimant who delivered his claim to the correct recipient using the wrong method. Further, Rule 5005(c) is an equitable rule. Avnet, a sophisticated claimant with benefit of counsel, did not give the bankruptcy court any reason to believe that the equities weighed in its favor; it did not explain why it waited until 43 minutes after the deadline to fax a copy of its proof of claim. A claimant who wants the benefit of Rule 5005(c) must “offer[ ][a] convincing justification or explanation for its untimely filing.” Id. The bankruptcy court did not abuse its discretion in declining to deem Avnet’s claim timely. Finally, Avnet argues that the bankruptcy court should have considered its faxed submission as an informal proof of claim and its subsequent mailing of the original as an amendment to that informal claim. The informal proof-of-claim doctrine" }, { "docid": "17974167", "title": "", "text": "pending. Bankruptcy Rule 5005 states: (a) Filing. The petition, proofs of claim or interest, complaints, motions, applications, objections and other papers required to be filed by these rules, except as provided in 28 U.S.C. § 1473 shall be filed with the clerk of the court in which the case under the Code is pending. The judge of that court may permit the papers to be filed with him, in which event he shall note thereon the filing date and forthwith transmit them to the clerk. (b) Error in Filing. A paper intended to be filed but erroneously delivered to the trustee, the attorney for the trustee, a bankruptcy judge, a district judge, or the clerk of the district court shall, after the date of its receipt has been noted thereon, be transmitted forthwith to the clerk of the bankruptcy court. In the interest of justice, the court may order that the paper shall be deemed filed as of the date of its original delivery. Lees-Carney asserts that in Sambo’s, the Ninth Circuit has interpreted this rule liberally to recognize an exception for erroneous filings regardless of any specific intent to file with the bankruptcy court. Id., at 815. Therefore, Lees-Carney argues, although the document in question was not intended to be filed with the bankruptcy court, it was filed with “a district judge”, as required by Bankruptcy Rule 5005(b). While the court in the Sambo’s case indicated that Rule 5005(b) should be liberally interpreted, the court was not called upon to determine whether the filing of papers with a district judge or the clerk of a district court, other than in the district in which the bankruptcy case was pending, and in litigation in which neither the debt- or, the debtor in possession, nor the trustee was a party, would satisfy the rule. In a Chapter 7 liquidation, the court in which the case is pending must at some point be made aware of the claims asserted against the estate in order to order a distribution of the assets of the estate after they have been liquidated. Accordingly Rule 3002(a)" }, { "docid": "1271161", "title": "", "text": "has been noted thereon, be transmitted forthwith to the clerk of the bankruptcy court. In the interest of justice, the court may order that the paper shall be deemed filed as of the date of the original delivery. Bankruptcy Rule 5005(b). The Bank relies heavily on In re Sambo’s Restaurants, Inc., 754 F.2d 811, 12 C.B. C.2d 173, 12 B.C.D. 1177 (9 Cir.1985), where a widow’s wrongful death action in a U.S. District Court in Alabama together with her joint motion with the Debtor to transfer the action to U.S. Bankruptcy Court in California were found to constitute an informal proof of claim. The Ninth Circuit construed Rule 5005(b) to find that the misdelivery exception had been met, relying on its earlier decision in In re Franciscan .Vineyards, Inc., 597 F.2d 181, 5 B.C.D. 476 (9th Cir.1979) (per curiam), cert. denied, 445 U.S. 915, 100 S.Ct. 1274, 63 L.Ed.2d 598 (1980). Franciscan Vine yards had held that a letter to the trustee enclosing delinquent tax bills was a sufficient informal proof of claim because it was intended to and did set out a claim against the estate, and that an informal proof of claim need not appear on the bankruptcy court’s records or in its files. The Ninth Circuit in Sambo’s stated that even under the stricter interpretation by the Seventh Circuit in Evanston Motor Co., infra, the exception was met because the joint motion to transfer the complaint to the bankruptcy court demonstrated the creditor’s attempt to file her proof of claim with the bankruptcy court. The Ninth Circuit offered further explanation of its position on Rule 5005(b). In Anderson-Walker Industries, Inc., 798 F.2d 1285, 14 B.C.D. 1395 (9 Cir.1986), the Court • stated that Rule 5005(b) only requires an intent to file the paper and an erroneous delivery to an official, i.e., that the creditor intended for the paper to become a part of the bankruptcy court proceedings and to receive official action. The Court reasoned that a creditor who sends a paper to a court appointed trustee or other official, under circumstances that the sender can be" }, { "docid": "14049865", "title": "", "text": "equitable to treat the document as a proof of claim. Id. Courts within our circuit have already applied that five-part test. See, e.g., Agassi v. Planet Hollywood Int’l, Inc., 269 B.R. 543, 550 (D.Del.2001); In re Petrucci, 256 B.R. 704, 706 (Bankr.D.N.J.2001). Petitioner argues that the five-factor test is inconsistent with Thompson. We disagree. In Thompson we pointed out two deficiencies but did not purport to establish a comprehensive test. We stated only that “[wjhether formal or informal, a claim must show (as the word itself implies) that a demand is made against the estate, and must show the creditor’s intention, to hold the estate liable.” Thompson, 227 F. at 983. The facts of that case did not require the Court to explain precisely what constitutes a demand. While we note that the five-part test enumerates several factors in addition to those identified in Thompson, it is entirely consistent with the holding in that case, and, we believe, it more accurately identifies the requirements for a properly filed proof of claim. The modern formulation of the two-part test in Thompson reflects significant changes in the administration of bankruptcy over the last nine decades. Not only are modern bankruptcy courts themselves creatures of intervening statutes, but also, bankruptcy proceedings today, including those initiated by American Classic, are of a scale and complexity unforeseen in 1915. Bankruptcy proceedings are now governed by elaborate rules of procedure designed to make that scale and complexity manageable. Two requirements in the five-part test are absent in Thompson: that informal proofs of claim must be in writing and that they must be filed with the bankruptcy court. Those two new factors are justified, however, by specific rules of bankruptcy procedure. First, Rule 3001(a) defines a proof of claim as “a written statement setting forth a creditor’s claim.” Fed. R. Bankr.P. 3001(a). Second, Rule 5005(a)(1) provides, with certain specified exceptions, that proofs of claim are to be filed with the clerk of the bankruptcy court. See Fed.. R. Bankr.P. 5005(a)(1). Those rules apply to all proofs of claim, whether formal or informal, and are reflected in the" } ]

[ { "docid": "14950888", "title": "", "text": "the declar-ant, characteristics of the event, and the subject matter of the statements. United States v. Rivera, 43 F.3d 1291, 1296 (9th Cir.1995). Each of these is but an aid to assist in deciding the ultimate question, whether the statement was the product of stress and excitement or reflective thought. On this record, we conclude that the district court did not abuse its discretion in admitting Park’s testimony. In the course of the robbery, the owner had a gun pointed at her baby. Park testified that the robbery victims were “quite panic[ked].” RT 4/27/93 at 126. When he arrived, they were screaming. Even after the police arrived within a matter of minutes, the robbery victims spoke simultaneously and in a disorderly fashion. “Testimony that the declarant appeared excited when the statement was made and that there was a reasonable basis for this continuing excitement may be sufficient.” United States v. Moore, 791 F.2d 566, 572 (7th Cir.1986). The victims’ statements were made within minutes of the robbery. We consider this easily soon enough to satisfy the exception’s “nearly contemporaneous” requirement. Bemis v. Edwards, 45 F.3d 1369, 1372 (9th Cir.1995). In light of Park’s testimony regarding the declarants’ manner, the trial court could credit statements made within minutes of an armed robbery as having been made while still under the influence of stress and excitement. The trial court did not abuse its discretion. Cepeda also argues that the victims’ statement that the robber had tattoos should not be admissible because it did not describe the robbery or the robber’s conduct. However, “[although the subject matter of an excited utterance is frequently a description of the ‘startling event,’ the statement need only ‘relat[e] to’ the startling event.” Bemis, 45 F.3d at 1372, n. 1; see also Moore, 791 F.2d at 572 (“The excited utterance exception allows a broader scope of subject matter coverage than does the present sense impression exception, which limits the subject matter of the statement to a description or expía- nation of the event.”)- Here, the declarant’s statement that the robber had tattoos clearly-related to the startling event, the" } ]

[ { "docid": "9626475", "title": "", "text": "third criteria are satisfied, but he contends that his brother was not under the stress of the excitement when he made the statements at issue, as several minutes had passed. “An excited utterance need not be contemporaneous with the startling event to be admissible under rule 803(2).” United States v. Tocco, 135 F.3d 116, 127 (2d Cir.1998). Rather, the utterance must be contemporaneous with the excitement engendered by the startling event. Webb v. Lane, 922 F.2d 390, 394 (7th Cir.1991); Martinez, 951 F.2d at 135. Here, Paul Joy could still have been under the stress of the excitement, as only a few minutes had passed from the time he had been in a heated argument with his brother and had seen him wave a gun around. Moreover, even during the call the excitement continued, as there was yelling in the background. Additionally, Paul Joy’s responses to the dispatcher’s questions were short and quick, further indicating that he was not capable of deep reflection at that time. Thus, there was an adequate basis for the district court to believe that Paul Joy’s statements were sufficiently spontaneous, excited, and impulsive, and that they were not the product of reflection or deliberation. Joy also argues that because the statements were in response to the dispatcher’s questions, they could not have been excited utterances. The fact that Paul Joy was answering questions, rather than giving a spontaneous narrative, does not indicate that he was not excited when he provided the answers. See Webb, 922 F.2d at 394 (the fact that declarations were responses to questions did not destroy their “spontaneity”). On the contrary, it is possible for someone to be too excited to volunteer pertinent information (as Paul Joy appeared to be), and thus the inherent “guarantee of truthfulness” supporting the admission of excited utterances applies equally to declarations made in response to an inquiry. Importantly, there is no “absolute spontaneity” requirement to the excited utterance exception to the hearsay rule. See United States v. Glenn, 473 F.2d 191, 193, 194 (D.C.Cir.1972) (the fact that declarations were prompted by questions of “what happened?” and" }, { "docid": "4648068", "title": "", "text": "in limine that was denied. Nor, we note, is there any argument now offered by Defendant that the court further erred in the manner it handled the evidence once the motion in limine had been overruled. We sustain the ruling admitting this evidence. Defendant next challenges the admission of the contents of the 911 call. The district court held that the 911 call was admissible as both an excited utterance and a present sense impression. A present sense impression is “[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” Fed.R.Evid. 803(1). Here, McIntosh testified that she made the 911 call within thirty seconds to a minute after seeing Defendant. This 911 call, made “immediately [jafter” witnessing the described event, is not distinguishable from one that was contemporaneous with the event itself. It meets the definition of a present sense impression under Rule 803(1). See United States v. Parker, 936 F.2d 950, 954 (7th Cir.1991) (holding that statements made about an event after walking approximately 100 feet or so qualified as a present sense impression under Rule 803(1)). The district court held that the statements made during the 911 call were also admissible as an excited utterance. An excited utterance is “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Fed.R.Evid. 803(3). The district court had “some difficulty” fitting the 911 call within the rubric of an excited utterance and we agree that the statement better fits the present sense impression exception. “The excited utterance exception is based on the belief that the statement is reliable because it is made while the declarant is under the stress of excitement. It is unlikely that the statement is contrived or the product of reflection.” Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050, 1057 (6th Cir.1983). This circuit has held that there are three elements for establishing admissibility as an excited utterance. “First, there must be an event startling enough to cause nervous" }, { "docid": "4569208", "title": "", "text": "be admissible as an excited utterance. The excited utterance exception “allows for a broader scope of subject matter coverage” than the present sense impression. United States v. Moore, 791 F.2d 566, 572 (7th Cir.1986). This is because the Federal Rules of Evidence provide that an excited utterance includes a statement “relating to” a startling event, Fed.R.Evid. 803(2), while the present sense impression exception is limited to “describing or explaining” the event, Fed.R.Evid. 803(1); see also Moore, 791 F.2d at 572. For the excited utterance exception to apply, we have said that the proponent must demonstrate that: “(1) a startling event occurred; (2) the declarant makes the statement under the stress of the excitement caused by the startling event; and (3) the declarant’s statement relates to the startling event.” Joy, 192 F.3d at 767. The statement “need not be contemporaneous with the startling event to be admissible under rule 803(2) ... [rjather, the utterance must be contemporaneous with the excitement engendered by the startling event.” Id. at 765 (citation and internal quotation marks omitted); see also United States v. Wesela, 223 F.3d 656, 663 (7th Cir.2000) (stating timing of statement important but not controlling and that what matters is whether statement made “contemporaneously with the excitement resulting from the event, not necessarily with the event itself’) (citations omitted). Here, the startling event of a domestic battery occurred. Portis called 911 and reported that Boyce had just hit her and was “going crazy for no reason” and that he had a gun. Next, Portis made her 911 call while under the stress of the excitement caused by the domestic battery. She made the call right after the battery, telling the operator that she had “just” run upstairs to her neighbor’s house. Officer Solomon’s testimony that Portis appeared emotional, as though she had just been in an argument or fight, further supports the district court’s conclusion that Portis made the call while under the stress or excitement of the startling event. Boyce principally takes issue with the district’s court finding that her statements related to the startling event. In particular, he argues that" }, { "docid": "4569207", "title": "", "text": "sense impression exception, United States v. Woods, 301 F.3d 556, 562 (7th Cir.2002), and Boyce points out that Portis did not mention a gun until questioned by the dispatcher as to whether Boyce had any weapons. One can still make statements without calculated narration even if made in responses to questions. Cf. United States v. Thomas, 453 F.3d 838, 844 (7th Cir.2006) (admitting 911 call, including responses to operator questions, as present sense impression). Here, notably, when the operator asked what kind of weapon, Portis told the operator “a gun.” The operator did not ask whether Boyce had a gun; it was Portis who first brought up the gun’s presence. But answering questions rather than giving a spontaneous narration could increase the chances that the statements were made with calculated narration, and, as we discussed, Portis ran to another residence between the battery and her 911 call. We need not definitively decide whether these concerns mean Portis’s statements fail to qualify under the present sense impression exception because even if they did, they would still be admissible as an excited utterance. The excited utterance exception “allows for a broader scope of subject matter coverage” than the present sense impression. United States v. Moore, 791 F.2d 566, 572 (7th Cir.1986). This is because the Federal Rules of Evidence provide that an excited utterance includes a statement “relating to” a startling event, Fed.R.Evid. 803(2), while the present sense impression exception is limited to “describing or explaining” the event, Fed.R.Evid. 803(1); see also Moore, 791 F.2d at 572. For the excited utterance exception to apply, we have said that the proponent must demonstrate that: “(1) a startling event occurred; (2) the declarant makes the statement under the stress of the excitement caused by the startling event; and (3) the declarant’s statement relates to the startling event.” Joy, 192 F.3d at 767. The statement “need not be contemporaneous with the startling event to be admissible under rule 803(2) ... [rjather, the utterance must be contemporaneous with the excitement engendered by the startling event.” Id. at 765 (citation and internal quotation marks omitted); see also" }, { "docid": "4648071", "title": "", "text": "the event. Under Haggins and its progeny, it does not matter whether the call was made thirty seconds or five minutes after witnessing the event. “[0]ur cases do not demand a precise showing of the lapse of time between the startling event and the out-of-court statement. The exception may be based solely on ‘[testimony that the declarant still appeared nervous or distraught and that there was a reasonable basis for continuing [to be] emotionally] upset.’ ” United States v. Arnold, 486 F.3d 177, 185 (6th Cir.2007) (en banc) (alterations in original) (quoting Haggins, 715 F.2d at 1058). There is some question as to whether the 911 call meets the second prong of the Haggins test, that is, whether the statement’was made before there was time to contrive or misrepresent. Despite the small amount of time between witnessing the event and the 911 call, there were certain acknowledged “exaggerations” in McIntosh’s • 911 call. McIntosh told the 911 dispatcher’ that Defendant had two guns, instead''of the one she testified to, and she told the dispatcher it had been five minutes since she saw him, not the mere thirty seconds to one minute she later was to relate under oath. These exaggerations, however, do not preclude the applicability of the excited utterance exception under Haggins’s second prong. As this circuit has previously held, “a statement that satisfies all of the elements of our test for excited utterances meets the threshold for admissibility under Rule 803(2), even though its reliability might be subject to challenge on such grounds as inconsistency with subsequent statements or the speaker’s motive to fabricate.” United States v. Hadley, 431 F.3d 484, 498 (6th Cir.2005). Here, the statement meets the second Haggins prong because McIntosh made the 911 call only moments after witnessing the event. The fact that she later stated she made “exaggerations” goes to the weight, not the admissibility of the 911 call. See id. (“Any challenges to the reliability of these statements would go to their weight rather than their admissibility ... ”). Thus, we conclude that the 911 call was properly admitted as an excited" }, { "docid": "23667150", "title": "", "text": "declarants had come to him directly from the location of the event (a distance Brown concedes could be covered in approximately one minute) or by a more circuitous route, the evidence did not preclude the possibility that the two men had sufficient time to fabricate their story. This argument, too, is unavailing in light of applicable law and the facts of record. Fed.R.Evid. 803(2) does not require that, in order to be admissible, the statement be contemporaneous with the startling event, but rather only with the excitement caused by the event. The critical question in the instant case, therefore, is whether the men’s report of an armed man likely occurred during the period of excitement engendered by their sighting of the gunman. In United States v. Tocco, 135 F.3d 116 (2d Cir.1998), the Court of Appeals for the Second Circuit held an out-of-court statement properly admitted as an excited utterance by a declarant who was “all hyped up” and “nervous” even though it was made some three hours after the startling event. Tocco, 135 F.3d at 127-28. In United States v. Phelps, 168 F.3d 1048 (8th Cir.1999), the Eighth Circuit held the statement of a “visibly distraught” declarant admissible as an excited utterance, although the statement was made 15 to 20 minutes after the startling event. See also United States v. Golden, 671 F.2d 369, 371 (10th Cir.1982), cert. denied, 456 U.S. 919, 102 S.Ct. 1777, 72 L.Ed.2d 179 (1982) (out-of-court statement admissible as excited utterance even though approximately fifteen minutes had transpired between the event and the statement). Under factual circumstances comparable to those here, where the temporal gap was only a matter of one or a few minutes, courts have often admitted the asserted excited utterance. See Territory of Guam v. Cepeda, 69 F.3d 369, 372-73 (9th Cir.1995), aff'd. in part, rev’d in part by People of Territory of Guam v. Cepeda, 69 F.3d 369 (1995) (citation omitted) (statements made “within minutes” of armed robbery, where declarants were “quite panicked” were properly admitted as excited utterances); United States v. Joy, 192 F.3d at 766 (statement that appellant had" }, { "docid": "23667151", "title": "", "text": "at 127-28. In United States v. Phelps, 168 F.3d 1048 (8th Cir.1999), the Eighth Circuit held the statement of a “visibly distraught” declarant admissible as an excited utterance, although the statement was made 15 to 20 minutes after the startling event. See also United States v. Golden, 671 F.2d 369, 371 (10th Cir.1982), cert. denied, 456 U.S. 919, 102 S.Ct. 1777, 72 L.Ed.2d 179 (1982) (out-of-court statement admissible as excited utterance even though approximately fifteen minutes had transpired between the event and the statement). Under factual circumstances comparable to those here, where the temporal gap was only a matter of one or a few minutes, courts have often admitted the asserted excited utterance. See Territory of Guam v. Cepeda, 69 F.3d 369, 372-73 (9th Cir.1995), aff'd. in part, rev’d in part by People of Territory of Guam v. Cepeda, 69 F.3d 369 (1995) (citation omitted) (statements made “within minutes” of armed robbery, where declarants were “quite panicked” were properly admitted as excited utterances); United States v. Joy, 192 F.3d at 766 (statement that appellant had “waved a gun around,” made within a few minutes of the incident, qualified as excited utterance); United States v. Ladell, 127 F.3d 622, 623, 625 (7th Cir.1997) (statements of “hysterical woman” to police “within minutes” of 911 call claiming appellant had hit her with a gun and threatened to kill her held admissible as excited utterances); United States v. Bailey, 834 F.2d 218, 228 (1st Cir.1987) (out-of-court state ment by “upset” declarant concerning an attempted bribe three minutes earlier properly admitted as an excited utterance). In the case at bar, the two declarants’ statements to Officer Hughes that “they just saw a guy with a gun” and that “there’s a guy over there with a gun” indicate that the startling event was very recent, if not ongoing, at the time of the statements. Therefore, even ignoring the fact that Officer Hughes found Brown carrying a gun shortly after the statements were made, it was entirely reasonable for the District Court to infer from the testimony that only a short time had passed between the startling" }, { "docid": "9626474", "title": "", "text": "Ferrier v. Duckworth, 902 F.2d 545, 548 (7th Cir.1990). For a statement to be admissible under this exception the proponent must demonstrate that: (1) a startling event occurred; (2) the declarant makes the statement while under the stress of excitement caused by the startling event; and (3) the declarant’s statement relates to the startling event. United States v. Hall, 165 F.3d 1095, 1109 (1999); United States v. Sowa, 34 F.3d 447, 453 (7th Cir.1994). Accordingly, the declarant must have personally perceived the startling event. United States v. Mitchell, 145 F.3d 572, 576 (3d Cir.1998). Furthermore, the trial court must be able to determine that the declar-ant’s state of mind at the time that the statement was made precluded conscious reflection on the subject of the statement. Hall, 165 F.3d at 1109; United States v. Zizzo, 120 F.3d 1338, 1355 (7th Cir.1997). Of course, a court need not find that the declarant was completely incapable of deliberative thought at the time he uttered the declaration. Martinez, 951 F.2d at 135. Joy concedes that the first and third criteria are satisfied, but he contends that his brother was not under the stress of the excitement when he made the statements at issue, as several minutes had passed. “An excited utterance need not be contemporaneous with the startling event to be admissible under rule 803(2).” United States v. Tocco, 135 F.3d 116, 127 (2d Cir.1998). Rather, the utterance must be contemporaneous with the excitement engendered by the startling event. Webb v. Lane, 922 F.2d 390, 394 (7th Cir.1991); Martinez, 951 F.2d at 135. Here, Paul Joy could still have been under the stress of the excitement, as only a few minutes had passed from the time he had been in a heated argument with his brother and had seen him wave a gun around. Moreover, even during the call the excitement continued, as there was yelling in the background. Additionally, Paul Joy’s responses to the dispatcher’s questions were short and quick, further indicating that he was not capable of deep reflection at that time. Thus, there was an adequate basis for the district" }, { "docid": "14658758", "title": "", "text": "responded to the call made by Mrs. Haner, they initially went to the trailer in which the Haners lived. They encountered appellant, who met them at his front door. He told the officers that he and his wife had had a fight and that she stormed out. Some 20 minutes later, the officers located Mrs. Haner, who was with a neighbor who lived several trailers down from the one in which appellant and Mrs. Haner lived. At the time the police officers interviewed Mrs. Haner, she still had the blanket wrapped around her and appeared to be very upset. She was shaking and crying hysterically. She told the officers that her husband had beaten her and threatened her with a knife. Mil.R.Evid. 803(2) defines an excited utterance as “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The military judge found that the statements to the police officers were made by Mrs. Haner shortly after a startling and stressful event, and at a time when she was still distraught from the circumstances. He concluded her statements met the legal parameters for excited utterances and were admissible under that exception to the hearsay rule. The circumstances of the excited utterances in this case are similar to those this Court faced in United States v. Morgan, 40 MJ 405 (1994). In that case, a 13-year-old stepdaughter ran to a neighbor’s house after she had been raped by her stepfather. We concluded that the statement she made to the neighbor soon after the alleged rape, while she was crying and acting in a hysterical manner, was a textbook example of an excited utterance. Similarly, in United States v. Chandler, 39 MJ 119 (1994), we upheld the admissibility of out-of-court statements by the accused’s wife made some 30 minutes after she called her neighbor to come over, following a brutal assault at the hands of her husband. In that case, we concluded that “[t]he guarantee of trustworthiness of an excited utterance is that the statement was made while" }, { "docid": "14950887", "title": "", "text": "v. Glenn, 473 F.2d 191, 194 (D.C.Cir.1972); accord United States v. Martin, 59 F.3d 767, 769-70 (8th Cir.1995); Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050, 1058 (6th Cir.1983), cert. denied, 464 U.S. 1071, 104 S.Ct. 980, 79 L.Ed.2d 217 (1984); United States v. Iron Shell, 633 F.2d 77, 85 (8th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981); McCurdy v. Greyhound Corp., 346 F.2d 224, 225-26 (3d Cir.1965); see also United States v. Lim, 984 F.2d 331, 336 (9th Cir.) (holding statements made during arrest, including one in response to question, admissible under excited utterance exception), cert. denied sub nom. Lim v. United States, — U.S. -, 113 S.Ct. 2944, 124 L.Ed.2d 692 (1993). The fact that a statement is made in response to a question is one factor to weigh in considering the statement’s admissibility, but it does not per se bar admission. Iron Shell, 633 F.2d at 85-86; Hoggins, 715 F.2d at 1058. Instead, we must also consider various other factors, including timing, age of the declar-ant, characteristics of the event, and the subject matter of the statements. United States v. Rivera, 43 F.3d 1291, 1296 (9th Cir.1995). Each of these is but an aid to assist in deciding the ultimate question, whether the statement was the product of stress and excitement or reflective thought. On this record, we conclude that the district court did not abuse its discretion in admitting Park’s testimony. In the course of the robbery, the owner had a gun pointed at her baby. Park testified that the robbery victims were “quite panic[ked].” RT 4/27/93 at 126. When he arrived, they were screaming. Even after the police arrived within a matter of minutes, the robbery victims spoke simultaneously and in a disorderly fashion. “Testimony that the declarant appeared excited when the statement was made and that there was a reasonable basis for this continuing excitement may be sufficient.” United States v. Moore, 791 F.2d 566, 572 (7th Cir.1986). The victims’ statements were made within minutes of the robbery. We consider this easily soon enough to satisfy" }, { "docid": "3897974", "title": "", "text": "for abuse of discretion. United States v. Kenyon, 397 F.3d at 1079. A. Wilcox argues that the district court erred by admitting a recording of D.T.’s telephone call to the police department, in which D.T. stated that “David” had been on top of her. The prosecution played the recording for the jury during the trial, and gave the jury a transcript of the conversation to review while the tape was played. Wilcox contends that the court erred by admitting the tape and allowing the jury to view the transcript, because D.T.’s recorded statements were impermissible hearsay. The court admitted the recording as evidence that Wilcox committed the alleged crimes, so D.T.’s recorded statements were offered “to prove the truth of the matter asserted,” and they are therefore hearsay. See Fed.R.Evid. 801(c). D.T.’s statements were admissible, however, under the excited utterance exception to the hearsay rule. Fed.R.Evid. 803(2). An excited utterance is a “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” Id. To determine whether a declarant was still under the “stress of excitement caused by an event” when a statement was made, we consider “the lapse of time between the startling event and the statement, whether the statement was made in response to an inquiry, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement.” United States v. Clemmons, 461 F.3d 1057, 1061 (8th Cir.2006). We also examine whether the declarant’s stress or excitement was continuous from the time of the event until the time of the statements. United States v. Marrowbone, 211 F.3d 452, 455 (8th Cir.2000). Accordingly, we have admitted evidence of a telephone call made to report a crime shortly after it occurred, where the declarant sounded very upset, and the circumstances of the crime were such that an ordinary person would have been startled. United States v. Phelps, 168 F.3d 1048, 1055 (8th Cir.1999). Here, D.T.’s testimony, buttressed by Wilcox’s account of the event, established" }, { "docid": "23332022", "title": "", "text": "call at 7:45 and 8:00) and that they arrived five to six minutes later' — did not give Gordon sufficient time to misrepresent what had happened. See Alexander, 331 F.3d at 123 (“Considering the nature of the startling occurrence — Alexander allegedly had a gun and threatened both to ‘do something’ to [declarant] and to ‘mess [up]’ her apartment — the passage of 15 to 20 minutes hardly suggests that the district court abused its discretion in admitting the 911 call.”). And as shown by Gordon’s frantic statements to the officers upon their arrival, she remained visibly agitated by Arnold’s threat. The court did not abuse its discretion in admitting the statement. Gordon’s statement to officers when Arnold pulled up next to the police car. Soon after the officers’ arrival, which is to say from 30 seconds to 5 minutes after they reached the scene, a car with Arnold in it pulled up next to the police car, at which point Gordon made the last of her statements admitted as an excited utterance. “[T]hat’s him,” she said, “that’s the guy who pulled a gun on me, Joseph Arnold, that’s him.” JA 115. The district court permissibly admitted this statement as part of the same emotional trauma that captured Gordon’s earlier statement to the officers. On top of that, the unexpected appearance of the victim’s assailant independently suffices to establish a startling event followed by an understandably excited verbal response. See Beverly, 369 F.3d at 540; cf. United States v. Scott, 69 Fed.Appx. 317, 321 (6th Cir.2003); United States v. Taylor, No. 92-5120, 1992 WL 322369, at *1, 1992 U.S.App. LEXIS 29048, at *3 (6th Cir. Nov. 5, 1992). The district court did not abuse its discretion in admitting the statement. The dissent’s view of the excited-utterance question prompts a few responses. First, the dissent, though not Arnold, contends that the district court failed to place the burden of proof on the government. Yet the district court, in making this ruling, concluded that “the elements to allow the exception have been demonstrated by the government.” JA 79. And we, too, have" }, { "docid": "23667145", "title": "", "text": "relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The applicability of the exception is unaffected by the availability or unavailability of the declarant as a witness. Fed. R.Evid. 803. The rationale for the excited utterance exception lies in the notion that excitement suspends the declarant’s powers of reflection and fabrication, consequently minimizing the possibility that the utterance will be influenced by self interest and therefore rendered unreliable. See United States v. Joy, 192 F.3d 761, 766 (7th Cir.1999), cert. denied, 530 U.S. 1250, 120 S.Ct. 2704, 147 L.Ed.2d 974 (2000); 2 McCormick on Evidence S 272, at 204-05 (5th ed.1999). Although courts’ articulations of the elements necessary to invoke the exception differ, most agree upon three requirements: (i) the occurrence of a startling event or condition; (ii) the statement in question must have been made while the declarant was under the stress of excitement caused by the event or condition; and (iii) the statement must relate to the startling event or condition. See United States v. Moore, 791 F.2d 566 (7th Cir.1986). In the Third Circuit, we have expanded the requirements of admissibility to include: (i) a startling occasion; (ii) a statement relating to the circumstances of the startling occasion; (iii) a declarant who appears to have had opportunity to observe personally the events; and (iv) a statement made before there has been time to reflect and fabricate. See United States v. Mitchell, 145 F.3d 572, 576 (3d Cir.1998); Miller v. Keating, 754 F.2d 507 (3d Cir.1985). In the memorandum opinion it issued following the Rule 104 hearing, the District Court carefully applied our four-part Rule 803(2) analysis as set forth in Mitchell and Miller and concluded that Officer Hughes’s testimony about the statements of the two declarants satisfied each of the four prongs. First, the court held that the two declarants’ observation of a man wielding a firearm qualified as a startling occasion. Significantly, Brown all but concedes this point in his brief: “On it’s [sic] face, a man waving a gun and threatening" }, { "docid": "23332019", "title": "", "text": "123 (D.C.Cir.2003) (applying exception to statements made 15 to 20 minutes after the startling event); United States v. Cruz, 156 F.3d 22, 30 (1st Cir.1998) (applying exception to statements made four hours after the startling event); United States v. Tocco, 135 F.3d 116, 128 (2d Cir.1998) (applying exception to statements made within three hours of the startling event). Contrary to Arnold’s suggestion, our cases do not demand a precise showing of the lapse of time between the startling event and the out-of-court statement. The exception may be based solely on “[tjesti-mony that the declarant still appeared nervous or distraught and that there was a reasonable basis for continuing [to be] emotionally] upset,” Haggins, 715 F.2d at 1058 (internal quotation marks omitted); see United States v. Schreane, 331 F.3d 548, 564 (6th Cir.2003), a conclusion that eliminates an unyielding requirement of a time line showing precisely when the threatening event occurred or precisely how much time there was for contrivance. The district court made this exact finding, a finding supported by evidence that, in the words of Haggins, “will often suffice.” 715 F.2d at 1058 (internal quotation marks omitted). The dissent, though not Arnold, raises the concern that the uncorroborated content of an excited utterance should not be permitted by itself to establish the startling nature of an event. But this issue need not detain us because considerable non-hearsay evidence corroborated the anxiety-inducing nature of this event: (1) Gordon’s act of calling 911; (2) the fear and excitement exhibited by the tenor and tone of Gordon’s voice during the 911 call; (3) Gordon’s distraught demeanor personally observed by Officers Brandon and Newberry upon their arrival at the scene; (4) Gordon’s renewed excitement upon seeing Arnold return; and (5) the gun matching Gordon’s description found underneath the passenger seat in which Arnold was sitting. This dispute, in short, is not one of the “very few cases” in which this “knotty theoretical problem” has raised its head. See 2 McCormick on Evidence § 272 (6th ed. 2006) (“Fortunately, only a very few cases need actually confront th[e] knotty theoretical problem [of whether independent" }, { "docid": "19908457", "title": "", "text": "statement. In considering this element, [a]mong the more relevant factors are: the amount of time between the event and the statement; the nature of the event; the subject matter of the statement; the age and condition of the declarant; the presence or absence of self-interest; and whether the statement was volunteered or in response to questioning. Id. at 1220. Here, Jane Doe fell asleep in the hogan around 2:00 a.m., Smith sexually assaulted her for 30 minutes, and she made the challenged statement to the neighbor at approximately 4:30 a.m. The record describes a confusing series of events after Jane Doe realized and understood the nature of the assault. Jane Doe confronted Smith, struck him, and eventually received assistance from the neighbor. At the first possible moment to disclose the assault to another person, she made the challenged statement. The neighbor’s testimony confirms Jane Doe’s demeanor and tone, which were consistent with ongoing stress arising from the assault. Nor does the passage of time suggest the stress had dissipated. Other courts have found the excited-utterance exception applies where more time elapsed between the startling event and the excited statement. For example, in United States v. Cruz, 156 F.3d 22 (1st Cir.1998), the First Circuit held a statement could be admitted as an excited utterance when there was a four-hour delay between a violent domestic altercation and statements made by the victim at a battered women’s shelter. See id. at 30 (cited with approval in Pursley, 577 F.3d at 1221). Similarly, in United States v. Tocco, 135 F.3d 116 (2d Cir.1998), the Second Circuit ruled a statement could be admitted under the excited-utterance exception where three hours passed between the discovery that people were in a burning building and the declarant’s statement that he was involved in the arson. See id. at 128 (also cited with approval in Pursley, 577 F.3d at 1221). And, we have noted that a statement made by a child the day after being molested could have been admitted as an excited utterance where the child was described as frightened and on the verge of tears when" }, { "docid": "23667149", "title": "", "text": "Weinstein’s Federal Evidence goes so far as to conclude that “hearsay may be used as the foundation for [the excited utterance] hearsay excep tion. Any other approach would greatly undermine the utility of the exception by causing valuable evidence to be excluded.” Weinstein’s Federal Evidence, S 803.04[2][b], at 803-21 (2d ed.2000). In light of the volume and persuasiveness of authority bearing on the question, we conclude that an excited utterance may itself be sufficient to establish that a startling event occurred and that the question whether corroborating evidence independent of the declaration is needed in a given case to establish the occurrence of such an event is committed to the discretion of the trial judge. Brown also asserts that the government failed to satisfy the fourth criterion of the Mitchell test: that the statements were made before declarants had time to reflect and fabricate. Brown argues that, because Officer Hughes did not know what amount of time had passed between the startling event and the men’s statements and because Hughes did not know if the declarants had come to him directly from the location of the event (a distance Brown concedes could be covered in approximately one minute) or by a more circuitous route, the evidence did not preclude the possibility that the two men had sufficient time to fabricate their story. This argument, too, is unavailing in light of applicable law and the facts of record. Fed.R.Evid. 803(2) does not require that, in order to be admissible, the statement be contemporaneous with the startling event, but rather only with the excitement caused by the event. The critical question in the instant case, therefore, is whether the men’s report of an armed man likely occurred during the period of excitement engendered by their sighting of the gunman. In United States v. Tocco, 135 F.3d 116 (2d Cir.1998), the Court of Appeals for the Second Circuit held an out-of-court statement properly admitted as an excited utterance by a declarant who was “all hyped up” and “nervous” even though it was made some three hours after the startling event. Tocco, 135 F.3d" }, { "docid": "4781524", "title": "", "text": "Mr. Cluff made the challenged statements. The overall passage of time between the assault and the statements was approximately one hour. For more than half of this time, Mr. Cluff was in closed quarters with his assailants. They even warned him not to seek help from the guards, warnings that he followed because he was “afraid” and “couldn’t handle another beating.” Id. at 473-74. Thus, when Mr. Cluff finally made his statements to Mr. Moltzan, approximately twenty to thirty minutes after his removal from the presence of his assailants, he was well within the temporal range of trauma contemplated by Rule 803(2). See Ledford, 443 F.3d at 712 (admitting a statement as an excited utterance over a hearsay objection when there was a thirty-five minute period between assault and statement to police upon arriving on scene); see also United States v. Cruz, 156 F.3d 22, 30 (1st Cir.1998) (admitting a statement as an excited utterance when there was a four-hour delay between spousal beating and statements made by victim at battered women’s shelter); United States v. Tocco, 135 F.3d 116, 128 (2d Cir.1998) (admitting a statement as an excited utterance when there was a three-hour delay between discovery that people were in burning building and declarant’s statement admitting part in arson); Webb v. Lane, 922 F.2d 390, 395 (7th Cir.1991) (admitting a statement as an excited utterance when there was a two-hour delay between shooting and victim’s statement identifying perpetrator of shooting). Other factors confirm that Mr. Cluff was still languishing under the event’s agitation when he spoke with Mr. Moltzan. Mr. Moltzan testified that Mr. Cluff seemed “excited”; he “appeared nervous, kind of fidgety,” and unable to “stop moving.” R., Vol. XII, Tr. at 522. Mr. Cluff testified that he was in considerable pain, and, in fact, vomited on his way out of the cell. See Webb, 922 F.2d at 394-95 (acknowledging that “physical suffering” may well postpone the “opportunity to reflect”). Although Mr. Floyd, a federal marshal, testified that Mr. Cluff was alert and without disorientation or confusion when he requested medical attention, alertness is not tantamount to" }, { "docid": "15184071", "title": "", "text": "objections by the defendant were overruled, Natasha’s mother further testified that her daughter said to her “that man raped me, and he said if I tell anybody, he’s going to kill me, he’s going to kill my family.” Rivera argues that these statements do not fall under the excited utterance exception to the rule against hearsay. See Fed.R.Evid. 803(2). He points out that Natasha’s statements to her mother occurred at least one-half hour after intercourse occurred and as such cannot constitute an excited utterance. The court disagrees. “The lapse of time between the startling event and the out-of-court statement although relevant is not dispositive in the application of rule 803(2).” United States v. Iron Shell, 633 F.2d 77, 85 (8th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981); see also Fed.R.Evid. 803 advisory committee’s note. In Iron Shell, the court held that under the excited utterance exception, it was not an abuse of discretion to admit a police officer’s testimony as to what a nine-year-old victim said following sexual assault — even though those statements were made between 45 minutes and one hour and 15 minutes after the assault. 633 F.2d at 86. As the Fourth Circuit has observed, “time lapse to be considered in [child sexual abuse] cases is not simply the time between the abuse and the declaration. Rather, courts must also be cognizant of the child’s first real opportunity to report the incident.” Morgan v. Foretich, 846 F.2d 941, 947 (4th Cir.1988). Rather than focusing solely on the time a statement was made, we consider other factors, including the age of the declar-ant, the characteristics of the event and the subject matter of the statements. Iron Shell, 633 F.2d at 86. Each of those factors suggests Natasha was still under the stress or excitement of the rape when she made the statements which Rivera challenges on appeal. First, Natasha was only fifteen when the rape occurred; Rivera was forty-five. Second, during the assault, Natasha had been subjected to physical abuse and death threats made against her and her family. Although a half" }, { "docid": "23667152", "title": "", "text": "“waved a gun around,” made within a few minutes of the incident, qualified as excited utterance); United States v. Ladell, 127 F.3d 622, 623, 625 (7th Cir.1997) (statements of “hysterical woman” to police “within minutes” of 911 call claiming appellant had hit her with a gun and threatened to kill her held admissible as excited utterances); United States v. Bailey, 834 F.2d 218, 228 (1st Cir.1987) (out-of-court state ment by “upset” declarant concerning an attempted bribe three minutes earlier properly admitted as an excited utterance). In the case at bar, the two declarants’ statements to Officer Hughes that “they just saw a guy with a gun” and that “there’s a guy over there with a gun” indicate that the startling event was very recent, if not ongoing, at the time of the statements. Therefore, even ignoring the fact that Officer Hughes found Brown carrying a gun shortly after the statements were made, it was entirely reasonable for the District Court to infer from the testimony that only a short time had passed between the startling event and the statements, that the declarants were still visibly in an excited state, that their statements thus were likely made in a state of excitement originating with the event, and consequently that their statements were admissible as excited utterances pursuant to Rule 803(2). In short, we can find no deficiency in the District Court’s application of the Mitchell test. Brown also argues that in admitting the two men’s statements, the District Court ran afoul of our holding in Miller. We do not agree. Although we did state in Miller that a party seeking to introduce a statement by an unidentified declarant under Rule 803(2) “carries a burden heavier than where the declarant is identified to demonstrate the statement’s circumstantial trustworthiness,” Miller, 754 F.2d at 510, we also emphasized that “such statements are admissible if they otherwise meet the criteria of[Rule] 803(2).” Id. For the reasons set forth supra, Officer Hughes’s testimony satisfies all the criteria of that rule, as elaborated in Mitchell. Moreover, the out-of-court statement in Miller was made by an unidentified declar-ant" }, { "docid": "3286217", "title": "", "text": "Antoinette Caruso testified that her granddaughter Erika, then three years old, saw Sowa beat Dodds, cried for twenty minutes, and then identified Sowa as the assailant. The district court admitted this testimony under Rule 803(2) of the Federal Rules of Evidence as an excited utterance. The substance of Sowa’s argument against admissibility is that a statement made twenty minutes after a startling event is too long to satisfy the excited utterance exception to the hearsay rule. Rule 803(2) provides an exception to the hearsay rule for any “statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.” The basis of the excited utterance exception is that “such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabula-tion_” Idaho v. Wright, 497 U.S. 805, 820, 110 S.Ct. 3139, 3149, 111 L.Ed.2d 638 (1990). For a hearsay statement to be admitted under this exception, three conditions must be met: 1) a startling event must have occurred; 2) the declarant must have made the statement while under the stress of excitement caused by the event; and 3) the statement must relate to the startling event. United States v. Hartmann, 958 F.2d 774, 784 (7th Cir.1992) (quoting United States v. Moore, 791 F.2d 566, 570 (7th Cir.1986)). There is no question in this case that the bloody beating with a baseball bat constitutes a startling event or that the child’s identification of the assailant relates to the event. We, therefore, focus on the second condition of admissibility. Antoinette Caruso testified as follows. She saw, through her basement window, two white men beat two black men with baseball bats, but could not identify the white men because she was not wearing her glasses. At this time, Erika was also looking out the window at the beating. Erika began to shake and started to cry. Antoinette pulled Erika away from the window while her husband called the police. With Erika in her arms, she then went across the street to determine whether the victim was alive. Antoinette returned" } ]

[ { "docid": "14015242", "title": "", "text": "Wallace, J. This motion for a preliminary injunction raises the question whether the owner of a patent in the United States for an invention, who has sold the patented article in England without restriction or conditions, can treat as an infringer one who has purchased the article in England of a vendee of the patentee, and can restrain him from using or selling the article here. This question has been decided adversely to the complainant in this court upon a motion to punish the defendants for contempt in violating an injunction obtained in a former suit between the parties; and it was held by Judge WheeueR in substance that the sale carried all the rights to the article which the complainants, the vendors, had, including the right to use it or sell it whenever the complainants could do so. Holiday v. Mattheson, Op. MS. That decision is controlling upon this motion, hut it is proper to add that the reasons upon which it proceeds are satisfactory, and would prevail if the question wore an original one between these parties and in this court. When the owner sells an article without any reservation respecting its use, or the title which is to pass, the purchaser acquires the whole right of the vendor in tho thing sold: the right to use it, to rojiair it, and to sell it to others; and second purchasers acquire the rights of the seller, and may do with the article whatever the first purchaser could have lawfully done if he had not parted with it. The presumption arising from such a sale is that the vendor intends to part with all his rights in the thing sold, and that the purchaser is to acquire an unqualified property in it; and it would be inconsistent with the presumed understanding of the parties to permit the vendor to retain the power of restricting the purchaser to using the thing bought in a particular way, or in a particular place, for a limited period oí time, or from selling his rights to others. It is quite immaterial whether tho" } ]

[ { "docid": "23437031", "title": "", "text": "of sale received all the royalty or consideration which he claims for the use of his invention in that particular machine or instrument, it is open to the use of the purchaser without further restriction on account of the monopoly of the patentee;' that, although the right of the assignees of the coffin-lid patent to manufacture, to sell, and to use the coffin-lids was limited to the circle of ten miles around Boston, a purchaser from them of a single coffin acquired the right to use that coffin for the purpose for which all coffins are used; that, so far as the use of it was concerned, the patentee had received his consideration, and it was no longer within the monopoly of the patent; that it would be to engraft a limitation upon the right of use, not contemplated by the statute nor within the reason of the contract, to say thát. it could only be used within the ten-mile circle; and that, whatever might be the rule when patentees subdivided territorially their patents, as to the exclusive right to males or to sell within a limited territory, this court held that, in the class of machines or implements it had described, when they were once' lawfully made and sold, there was no restriction on their use to be implied, for the benefit of the patentee or his assignees or licensees. The plaintiffs in error’ contend that the deqision in Adams v. Burke is not applicable to the present case; that in Adams v. Burke it was assumed that the patented coffin-lids were first lawfully sold to the purchaser, without condition or restriction, by assignees of the patent for the territory of Boston and vicinity; that then the question was presented 'whether, as an incident of such a lawful sale, the buyer could use outside of the limits of the territory of the assignees the article so lawfully purchased; that it was not shown in that case that the sellers sold the patented coffin-lids for use in other territory, or knew of, or had any interest in such use; that," }, { "docid": "343283", "title": "", "text": "repair with respect to approximately 4 million cameras does not end the inquiry, because a refurbished disposable camera infringes unless it was permissibly repaired from an empty camera shell first sold in the United States. Jazz v. ITC, 264 F.3d at 1098-99, 1103-1107, 1110-11. This requirement of domestic first sale derives from the principle of patent “exhaustion.” “Exhaustion” — Legal Principles. The principle of exhaustion holds that a patentee’s rights in a patented article are “exhausted” after the first sale of the article by the patentee or under the patentee’s authority. Jazz v. ITC, 264 F.3d at 1105. In exchange for the royalty received, the patentee ceases to have the ability to use its patent monopoly to restrict the further sale, use, or lawful modification or repair of the product. See id.; see also, e.g., Mitchell v. Hawley, 83 U.S. (16 Wall.) 544, 547, 21 L.Ed. 322 (1872); Boesch v. Graff, 133 U.S. 697, 703, 10 S.Ct. 378, 33 L.Ed. 787 (1890) (“when the machine passes to the hands of the purchaser it is no longer within the limits of the monopoly. It passes outside it, and it is no longer under the protection of the act of congress.”). This principle flows logically from the common-sense notion that a patentee is “entitled to but one royalty for a patented machine.” Mitchell, 83 U.S. (16 Wall.) at 547. As the Federal Circuit noted in Jazz v. ITC, however, there is a significant exception to this general principle of exhaustion by first sale: A patentee’s United States patent rights are not exhausted unless the patented product is first sold “under the United States patent.” Jazz v. ITC, 264 F.3d at 1105. This exception traces its origins to the Supreme Court’s decision in Boesch v. Graff, in which the Court held that the sale or use in the United States of a patented product purchased abroad, even from an authorized seller of the product in the foreign country, constitutes patent infringement. See 133 U.S. at 702-03, 10 S.Ct. 378. The patentee in Boesch owned both United States and German patents for lamp burners." }, { "docid": "343284", "title": "", "text": "longer within the limits of the monopoly. It passes outside it, and it is no longer under the protection of the act of congress.”). This principle flows logically from the common-sense notion that a patentee is “entitled to but one royalty for a patented machine.” Mitchell, 83 U.S. (16 Wall.) at 547. As the Federal Circuit noted in Jazz v. ITC, however, there is a significant exception to this general principle of exhaustion by first sale: A patentee’s United States patent rights are not exhausted unless the patented product is first sold “under the United States patent.” Jazz v. ITC, 264 F.3d at 1105. This exception traces its origins to the Supreme Court’s decision in Boesch v. Graff, in which the Court held that the sale or use in the United States of a patented product purchased abroad, even from an authorized seller of the product in the foreign country, constitutes patent infringement. See 133 U.S. at 702-03, 10 S.Ct. 378. The patentee in Boesch owned both United States and German patents for lamp burners. The defendant acquired the burners in Germany from an individual who was not licensed by the patentee to make or sell the product in either country, but was permitted to make or sell the burners under German law. Id. at 379-80, 10 S.Ct. 378. The Supreme Court found the defendant’s sale of the product in the United States to be infringement. Id. at 380,10 S.Ct. 378. The Supreme Court’s decision in Boesch left open the question whether a foreign sale by the holder of both United States and foreign patents (or its licensee with a license to sell in both countries) “exhausts” the patentee’s rights “under the United States patent.” See 5 Chisum on Patents § 16.05[3][a][ii]. Several courts thereafter distinguished Boesch on this ground, concluding that, on the one hand, the foreign sale of a patented article by the patentee (or a licensee) constituted exhaustion, while on the other hand the patentee retained its monopoly over items sold abroad by a licensee with no authority to sell the product in the United States. See" }, { "docid": "343327", "title": "", "text": "228 F.3d 1338, 1348 (Fed.Cir.2000) (importation into United States of a product made abroad by a patented process is infringement under Product Process Amendments Act, 35 U.S.C. § 271(g), even though product was authorized to be produced outside the United States). . Jazz sought a stay of the Federal Circuit’s ruling, rehearing en banc, and certiorari to the Supreme Court on the exhaustion issue. In its various petitions, Jazz argued that the Federal Circuit improperly changed the law and that foreign exhaustion should remain viable if the patented article is sold by the holder of a license in both the United States and the foreign country. Jazz’s petitions were denied. The Circuit’s decision is therefore stare decisis in this case. Nor is the proposition that foreign sales should not eviscerate United States patent rights without substantial justification. Indeed, it follows directly from the territorial nature of the patent laws themselves. Cf. Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 531, 92 S.Ct. 1700, 32 L.Ed.2d 273 (1972) (patent laws \"do not, and were not intended to, operate beyond the limits of the United States”). As one leading commentator has noted, \"[s]ince a patent only extends to the borders of the country using it, it makes sense to limit the right to make, use or sell the product to the same borders.” Martin J. Adel-man, Patent Law Perspectives § 3.6[1]. Thus, “anyone purchasing a product in the territory of one sovereign country ought to be on notice that the use or sale of that product in another sovereign country may be impermissible.” Id. This was precisely the balance struck by the Federal Circuit in Jazz v. ITC. . Specifically, Question 3 asked the jury to determine the number of cameras sold by Jazz in or to the United States made from refurbished shells of cameras first sold outside the United States by Fuji or a licensee with the right to sell in both countries. This question was asked solely in an abundance of caution: after the appeal of this matter, should the Federal Circuit sitting en banc or the Supreme" }, { "docid": "11500342", "title": "", "text": "distinguishable in its facts. There were two patents for the same invention, one Belgian and one British. The two patents were owned by the same concern. A third party had purchased the patented article in Belgium, and had then undertaken to import his purchase into England. The owner of the, British patent had not manufactured the article, nor sold it, nor in any way authorized the purchaser to bring it into England, and therefore was not estopped from enforcing his rights against the purchaser. The owner of the patent had granted to the Belgian Société Anonyme a mere ordinary license to operate under the Belgian patent, and the court held that, inasmuch as the relationship was that of ordinary li-censor and licensee, the Belgian product was not immune from infringement within Great Britain. In the course of his opinion in that case Cotton, E. J., however, said; “When an article is sold without any restriction on the buyer, whether it is manufactured under either one or the other patent, that, in my opinion, as against the vendor gives the purchaser an absolute right to deal with that which he so buys in any way he thinks fit, and of course that includes selling in any country where there is a patent in the possession of and owned by the vendor.” The extract quoted fits the facts of this case. The plaintiff herein as the original vendor gave to the British government, as purchaser, an absolute right to deal with that which it purchased in any way it thought fit, and defendant herein derives.its right from that government to bring the aeroplanes into the United States in the manner it did, and the plaintiff is without ground of complaint. As the plaintiff has already been paid for these aeroplanes the full price it asked, it is no longer concerned about the price at which the article is sold, or whether the article is kept in Canada, or in Great Britain, or in the United States. We may summarize our conclusions; It is admitted that, if the aeroplanes which are alleged to" }, { "docid": "22775012", "title": "", "text": "upon the right of use and a sale subject to such limitations becomes the more evident, in view of the fact that but for the license to use only for tire remainder of the original patent term the purchaser would have acquired the right to continue the use during an extended term of the same patent. This was the express holding in the two prior cases of Wilson v. Rousseau, 4 How. 646, and Bloomer v. McQuewan, 14 How. 539, where the unlimited right of use by an unconditional purchaser was laid down in the strongest terms, and which cases aré now relied upon by counsel in this case as equally applicable to a sale subject to a restricted use. It is obvious that if Taylor, the patentee, could authorize Bayley to make and sell the patented machines, subject to the restriction that he should not sell for use beyond the terms of the original patent, and that a purchaser of the machines so made and sold by Bayley, with notice, would infringe the extended patent by a use after the original term had expired, it is because the exclusive right of the patentee embraces the right to make and sell patented machines subject to restrictions upon the right of use, which, if not observed, will support an action for infringement. An absolute and unconditional sale operates to pass the patented thing outside the boundaries of the patent, because such a sale implies that the patentee consents that the purchaser may use the machines so long as its identity is preserved. This implication arises, first, because a sale without reservation, of a machine whose value consists in its use, for a consideration, carries with it the presumption that the right to use the particular machine is to pass' with it. The rule and its reason is thus stated in Robinson on Patents, §824: “The sale must furthermore be unconditional. Not only may the patentee impose conditions limiting the use of the patented article, upon his grantees and express licensees, but any person having the right to sell'may at the time" }, { "docid": "16014586", "title": "", "text": "hose, boosters, etc.] are authorized for sale or use only as repair and replacement parts for the Alemite high pressure lubricating system.” In some instances the word “only” is omitted. The Larkin Company states in its catalogue that it has an established sales organization, traveling in every state of the Union and Canada, with representation in the leading foreign countries, and that 400 of the country’s foremost jobbers and distributors are now handling Thuro products, that Thuro sales increased 400 per cent, in the first eight months of 1925 over the entire year of 1924, that sales possibilities include 500,000 prospective customers, and that a Thuro sales representative is in every territory to assist all jobbers and distributors. Plaintiff claims that, as a result of this situation, its tremendous volume of business is being very greatly depleted by the very extensive product and sales of the Larkin Company; that the catalogue restriction that the parts are sold for replacement and repair purposes is not rightful, and is not adequate protection of plaintiff’s rights; that the doctrine that a patented article may be repaired or replaced without infringement has no place in the production and sale of this equipment; that the restriction is ignored and ineffective, and that contributory infringement results. The defendants contend that the manufacture, production, and sale of various parts by the Larkin Company and its vendees for repairs and replacement only is proper, that Judge Hiekenlooper has so adjudged, and that it is not infringing directly or contributorily upon plaintiff’s rights. It appears that Montgomery Ward & Co. made sales to one MeKiernan of four so-called Alemite fittings for use in combination with another company’s compressor, hose, and coupler, which the salesman showed to the purchaser at the time of the purchase, and with which he said he desired to use the pin fittings at that time purchased. These four fittings were in one envelope, which did not carry any label stating that the articles were sold for repair or replacement purposes. When the purchaser obtained the fittings, he might have combined and used them with the" }, { "docid": "23483388", "title": "", "text": "cases are such articles as are exhausted or consumed in their use; that is, where articles are of no value after a single use, there is no restriction on their further use in favor of the patentee or assignee. \"When a patented article of that kind, the whole value of which consists in its use for a particular purpose, and which value ceases when its capability of use for that purpose is gone, the monopoly of the patentee or his assignee over it must necessarily cease upon its sale to the purchaser. Upon the other hand, in Boesch v. Graff, 133 U. S. 697, it was held that one who purchased articles covered by a patent in a foreign country, and • imported them into the United States, could not sell them here without the license or consent of the owner of the American patent, although they were purchased in a foreign country from a person authorized to sell them. This is the only case decided by this court in which the right of a purchaser, to sell patented articles outside of the territory of his vendor has been drawn in question, and I see no reason why the arguments, which moved the court in that case to hold that this could not be done, do not apply with equal cogency to a case where the patented articles are bought within the United States. In both cases a tribute has once been paid to the patentee, and the fact that that-tribute was paid, in a foreign country works no apparent difference in the principle. In this connection the following decisions of the Circuit Courts, though not binding upon us as authority, are at' least entitled to respectful consideration: In Hatch v. Adams, 22 Fed. Rep. 434, it was held by Judge McKennan that a purchaser of patented articles from a territorial assignee of the patent does not acquire the right to sell the articles, in the course of trade, outside of the territory granted to his vendor. A like ruling was' made in the Southern District of New York by" }, { "docid": "23483374", "title": "", "text": "and the legal significance of the decision upholding his defence is that a person who buys patented articles from a person who has a right to sell, though within a restricted territory, has a right to use and sell such articles in all and any part of the United States; that when the royalty has once been paid to a party entitled to receive it, the patented article then becomes the absolute, unrestricted property of the purchaser, with the right to sell it as an essential incident of such ownership. That this was the meaning of this decision, not only appears from the language used, and from the necessary legal effect of the conclusion reached as between the parties, but from the dissenting opinion of Justice Bradley, whose reasoning went wholly upon the assumption that such was its meaning-. Boesch v. Graff, 133 U. S. 697, is cited by the defendant in error. But it is not out of line with the previous cases. The exact question presented- was whether a dealer residing in the United States could purchase in another country articles patented there from a person authorized there to sell them, and import them to and sell them in the United States without the license or consent of the owners of the United States patent, and the court held that the sale of articles in the United States under a United States patent cannot be controlled by foreign laws. In this case neither the patentee or any assignee had ever received any royalty or given any license to use the patented article in any part of the United States. Hobbie v. Jennison, 149 U. S. 355, is interesting as the last opinion delivered by Mr. Justice Blatchford. The facts were these: An assignee for ‘ Michigan, of a patent for an improvement in pipes for conveying gas, water, and other fluids, made, sold and delivered in Michigan pipes made according to the patent, knowing that they were to be laid in the streets of a city in Connecticut, a territory the right for which the seller did not" }, { "docid": "6684000", "title": "", "text": "not create a limitation on the right of a purchaser to use, sell, or modify a patented product as long as a reconstruction of the patented combination is avoided. A noncon-tractual intention is simply the seller’s hope or wish, rather than an enforceable restriction. HP’s arguments based on decisions of this court are similarly unavailing. In Sage Products, Inc. v. Devon Industries, Inc., 45 F.3d 1575, 33 USPQ2d 1765 (Fed.Cir.1995), we held that an inner container of a patented medical waste disposal system was effectively spent when filled and thus could be replaced or repaired without infringing the patent. In response to the patentee’s argument that the inner containers were not spent, the court noted, inter alia, that the patentee admitted that it intended that customers replace the inner containers. 45 F.3d at 1578, 33 USPQ2d at 1767. The patentee’s intent was relevant, not to limit use by the purchasers, but to show that the patentee expected the product to be repaired. Neither that decision nor other decisions of this court cited by HP suggest that a patentee’s intent alone limits the scope of the implied license that accompanies the sale of goods. Accordingly, even though HP clearly intends the filled cartridges which it sells to be discarded after a single use, HP cannot use the patent laws to impose restrictions on the cartridges’ use after selling them unconditionally. The modification made by ROT, essentially replacing the type of seal holding the cap onto an unused cartridge, is not a “second creation of the patented entity” so as to constitute an infringement of HP’s ink jet pen patents. See Aro I, 365 U.S. at 346, 81 S.Ct. at 604-05, 128 USPQ at 359. Were we to rule in HP’s favor in this case, we would be depriving ROT of the right to use and resell its own property, an unused product it purchased free of restriction, and enable HP to limit the use of a product it freely sold without restriction. B. The ’503 Ink Patent HP argues that summary judgment of non-infringement of the ’503 patent was improperly granted" }, { "docid": "11500338", "title": "", "text": "the patent. It would be to ingraft a limitation upon the right of use- not contemplated by the statute, nor within the reason of the contract to say that it could only be used within the 10-mile circle.” ) And see, to the same effect, Hobbie v. Jennison, 149 U. S. 355, 13 Sup. Ct. 879, 37 L. Ed. 766; Keeler v. Standard Folding Bed, 157 U. S. 660, 15 Sup. Ct. 738, 39 L. Ed. 848. In the case last cited the court said: “Upon the doctrine of these cases we think it follows that one who, buys patented articles of manufacture from one authorized to sell them becomes possessed of an absolute property in such articles, unrestricted in time or place. * “ * The conclusion reached does not deprive a patentee of his just rights, because no article can be unfettered from the claim of his monopoly without paying its tribute. The inconvenience and annoyance to the public tha;t an opposite conclusion would occasion are too obvious to require illustration.” If a patentee or his assignee sells a patented article, that article is freed from the monopoly of any patents which the vendor may possess. If the thing sold contains inventions of several United States patents owned by the vendor, the article is freed from each and all of them; and if the vendor has divided his monopoly into different territorial monopolies, his sale frees the article from them all. If the vendor’s patent monopoly consists of foreign and domestic patents, the sale frees the article from the monopoly of both his foreign and his domestic patents, and where there is no restriction in the contract of sale the. purchaser acquired the complete title and full right to use and sell the article in any and every country. This doctrine was recognized by Judge Wallace in the Circuit Court for the Southern District of New York in 1885, in Holiday v. Mattheson, 24 Fed. 185. That case raised the question whether the owner of a patent in the United States for an invention, and who had sold" }, { "docid": "7948979", "title": "", "text": "beginning the Supreme Court has recognized a difference between end users of patented articles and licensees of the right to make and/or sell those articles. In Adams v. Burke, 84 U.S. 453, 456, 17 Wall. 453, 21 L.Ed. 700 (1873), the Supreme Court again made a distinction between one who manufactures and sells a patented product and one who purchases it for use. The Court was asked whether a patent holder could restrict post-sale use of his coffin-lids to a limited district, specifically the circle of ten miles around Boston. The Court stated, “Whatever ... may be the rule when patentees subdivide territorially their patents, as to the exclusive right to make and to sell within a limited territory, we hold that in the class of machines or implements we have described, when they are once lawfully made and sold, there is no restriction on their use to be implied for the benefit of the patentee or his assignees or licensees.” Id. at 456-57. Stated otherwise, while the right of Lockhart & Seelye to make and sell the coffin-lids was restricted to the circle often miles around Boston, the right of their customers to use the coffin-lids was not. Id. According to the Court, “[A] purchaser ... of a single coffin acquired the right to use that coffin for the purpose for which all coffins are used.” Id. at 456. The Supreme Court again addressed the issue of patent exhaustion in the case of Henry v. A.B. Dick Co., 224 U.S. 1, 32 S.Ct. 364, 56 L.Ed. 645 (1912). This time, however, the Court held that a patent holder could restrict a purchaser’s use of his patented product. The case involved a patented mimeograph sold by the A.B. Dick Company with the license restriction that it could be used only with stencil paper, ink, and other supplies made by the A.B. Dick Company. Id. at 11, 32 S.Ct. 364. The Court explained that, in previous cases, “the statement that a purchaser of a patented machine has an unlimited right to use it for all the purposes of the invention, so" }, { "docid": "23483386", "title": "", "text": "in which three Justices concurred, as a case of use and not of sale, and Mr. Justice Miller in delivering the opinion observed : “ Whatever, therefore, may be the rule when patentees subdivide territorially their patents, as to the exclusive right to make or to sell within a limited territory, we hold that in the class of machines or implements we have described, when they are once lawfully made and sold, there is no restriction on their use to be implied for the benefit of the patentee or his assignees or licensees.” The dissenting Justices were of opinion that the assignment did not confer upon the assignee the right to sell the patented article to be used outside of his territory. There was no suggestion in either opinion that a purchaser from the assignee had or could have the right to deal in the patented article outside of the territory in which the purchase was made. In Hobbie v. Jennison an assignee for the State of Michigan sold and delivered in that State certain patented gas and water pipes, knowing that they were to be laid in the streets of Hartford, Connecticut, a territory, the right for which the seller did not own under the patent. The pipes were laid in that city. It was held, following Adams v. Burke, that the seller was not liable, in an action for infringement, to the owner of the patent for Connecticut. The action in this case was brought not against the user, but against the manufacturer and vendor of the patented article, and it was held that, as the sale was completed in Michigan, neither the actual use of the pipes in Connecticut, nor the knowledge on the part of the defendants that they were intended to be used there, could make them liable. This case also involved the right to .use and not to sell, and was held to be indistinguishable from Adams v. Burke. It differed from that only in the fact that the action was brought against the vendor. The machines or implements thus referred to in these" }, { "docid": "11500339", "title": "", "text": "patentee or his assignee sells a patented article, that article is freed from the monopoly of any patents which the vendor may possess. If the thing sold contains inventions of several United States patents owned by the vendor, the article is freed from each and all of them; and if the vendor has divided his monopoly into different territorial monopolies, his sale frees the article from them all. If the vendor’s patent monopoly consists of foreign and domestic patents, the sale frees the article from the monopoly of both his foreign and his domestic patents, and where there is no restriction in the contract of sale the. purchaser acquired the complete title and full right to use and sell the article in any and every country. This doctrine was recognized by Judge Wallace in the Circuit Court for the Southern District of New York in 1885, in Holiday v. Mattheson, 24 Fed. 185. That case raised the question whether the owner of a patent in the United States for an invention, and who had sold the patented article in England without restrictions or conditions, could treat as an infringer one who had purchased the article in England of a vendee of the patentee, and could restrain him from using or selling the article in the United States. In deciding the question adversely Judge Wallace said: “When the owner sells an article without any reservation respecting its use, or the title which is to pass, the purchaser acquires the whole right of the vendor in the thing sold, the right to use it, to repair it, and to sell it to others; and second purchasers acquire the rights of the seller, and may do with thp article whatever the first purchaser could have lawfully done if he liad not parted with it. The presumption arising from such a sale is that the vendor intends to part with all his rights in the thing sold, and that the purchaser is to acquire an unqualified property in it; and it would be inconsistent with the presumed understanding of the parties to permit the" }, { "docid": "11500340", "title": "", "text": "the patented article in England without restrictions or conditions, could treat as an infringer one who had purchased the article in England of a vendee of the patentee, and could restrain him from using or selling the article in the United States. In deciding the question adversely Judge Wallace said: “When the owner sells an article without any reservation respecting its use, or the title which is to pass, the purchaser acquires the whole right of the vendor in the thing sold, the right to use it, to repair it, and to sell it to others; and second purchasers acquire the rights of the seller, and may do with thp article whatever the first purchaser could have lawfully done if he liad not parted with it. The presumption arising from such a sale is that the vendor intends to part with all his rights in the thing sold, and that the purchaser is to acquire an unqualified property in it; and it would be inconsistent with the presumed understanding of the parties to permit the vendor to retain the power of restricting the purchaser to using the thing bought in a particular way, or in a particular place, for a limited period of time, or from selling his rights to others. It is quite immaterial whether the thing sbld is a patented article or not, or whether the vendor is the owner of a patent which gives him a monopoly of its use and sale. If these circumstances happen to concur, the legal effect of the transaction is not changed, unless by the conditions of the bargain the monopoly right is impressed upon the thing purchased; and if the vendor sells without reservation or restriction, he parts with his monopoly so far as it can in any way qualify the rights of the purchaser.” And see Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co. (C. C.) 40 Fed. 580_ _ Counsel for plaintiff relies strongly upon Société Anonyme des Manufactures de Glaces v. Tilgman’s Patent Sand Blast Co., L. R. 25 Ch. Div. 7. That case, however, is readily" }, { "docid": "7948978", "title": "", "text": "further monopoly subsequently acquired by the patentee. He does not purchase or pay for it. McQuewan, 55 U.S. at 549. A purchaser of the right to use a patented article in the ordinary pursuits of life, however, “stands on different ground.” Id. The Court explained, In using it, he exercises no rights created by the act of Congress, nor does he derive title to it by virtue of the franchise or exclusive privilege granted to the patentee. The inventor might lawfully sell it to him, whether he had a patent or not, if no other patentee stood in his way. And when the machine passes to the hands of the purchaser, it is no longer within the limits of the monopoly. It passes outside of it, and is no longer under the protection of the act of Congress ... The implement or machine becomes his private, individual property, not protected by the laws of the United States, but by the laws of the State in which it is situated. Id. at 549-50. Thus, from the beginning the Supreme Court has recognized a difference between end users of patented articles and licensees of the right to make and/or sell those articles. In Adams v. Burke, 84 U.S. 453, 456, 17 Wall. 453, 21 L.Ed. 700 (1873), the Supreme Court again made a distinction between one who manufactures and sells a patented product and one who purchases it for use. The Court was asked whether a patent holder could restrict post-sale use of his coffin-lids to a limited district, specifically the circle of ten miles around Boston. The Court stated, “Whatever ... may be the rule when patentees subdivide territorially their patents, as to the exclusive right to make and to sell within a limited territory, we hold that in the class of machines or implements we have described, when they are once lawfully made and sold, there is no restriction on their use to be implied for the benefit of the patentee or his assignees or licensees.” Id. at 456-57. Stated otherwise, while the right of Lockhart & Seelye to make" }, { "docid": "11500341", "title": "", "text": "vendor to retain the power of restricting the purchaser to using the thing bought in a particular way, or in a particular place, for a limited period of time, or from selling his rights to others. It is quite immaterial whether the thing sbld is a patented article or not, or whether the vendor is the owner of a patent which gives him a monopoly of its use and sale. If these circumstances happen to concur, the legal effect of the transaction is not changed, unless by the conditions of the bargain the monopoly right is impressed upon the thing purchased; and if the vendor sells without reservation or restriction, he parts with his monopoly so far as it can in any way qualify the rights of the purchaser.” And see Morgan Envelope Co. v. Albany Perforated Wrapping Paper Co. (C. C.) 40 Fed. 580_ _ Counsel for plaintiff relies strongly upon Société Anonyme des Manufactures de Glaces v. Tilgman’s Patent Sand Blast Co., L. R. 25 Ch. Div. 7. That case, however, is readily distinguishable in its facts. There were two patents for the same invention, one Belgian and one British. The two patents were owned by the same concern. A third party had purchased the patented article in Belgium, and had then undertaken to import his purchase into England. The owner of the, British patent had not manufactured the article, nor sold it, nor in any way authorized the purchaser to bring it into England, and therefore was not estopped from enforcing his rights against the purchaser. The owner of the patent had granted to the Belgian Société Anonyme a mere ordinary license to operate under the Belgian patent, and the court held that, inasmuch as the relationship was that of ordinary li-censor and licensee, the Belgian product was not immune from infringement within Great Britain. In the course of his opinion in that case Cotton, E. J., however, said; “When an article is sold without any restriction on the buyer, whether it is manufactured under either one or the other patent, that, in my opinion, as against" }, { "docid": "7948987", "title": "", "text": "sale of the lens blanks, could not set the price or “exercise any further control over the article sold.” Univis, 316 U.S. at 252, 62 S.Ct. 1088. Rather, “the authorized sale of an article which is capable of use only in practicing the patent is a relinquishment of the patent monopoly with respect to the article sold.” Id. at 249, 62 S.Ct. 1088. Another Supreme Court case addressing the issue of patent exhaustion, one not discussed by the Quanta Court, bears mentioning — Mitchell v. Hawley, 83 U.S. 544, 16 Wall. 544, 21 L.Ed. 322 (1872). Like McQuewan, Mitchell is a patent extension case. Jn Mitchell, however, the license agreement “expressly stipulated” that the licensee could not sell or grant any license to use the patented machine beyond the expiration of the term -of the original patent. Id. at 549. Because of this language in the license agreement, the Court reached a different result, holding that purchasers of the machines for use in the ordinary pursuits of life could not continue to use them through the extended term. Id. at 550. The result in Mitchell seems inconsistent with the results reached in Adams, Motion Picture Patents, and Univis regarding restrictions on the post-sale use of patented products. Language in the Mitchell opinion, however, suggests the Court considered the restriction at issue to be a condition limiting the right to sell, rather than a post-sale restriction on the -right of use. For example, the Court wrote that “the grantor under whom the respondents claim never acquired the right to sell the machines and give their purchasers the right to use the same ... beyond the term of the original patent....” Id. In this way, Mitchell is distinguishable from the Court’s other cases dealing with the doctrine of patent exhaustion. Similarly, General Talking Pictures Corp. v. Western Electric Co., 304 U.S. 175, 58 S.Ct. 849, 82 L.Ed. 1273 (1938), another case left out of the Court’s patent exhaustion overview, though discussed later in the Quanta opinion, concerns a restriction on the sale of patented products, as opposed to a restriction on post-sale" }, { "docid": "13036002", "title": "", "text": "outside of the Boston circle. 84 U.S. (17 Wall.) at 455 (statement of the case). Adams, who owned the patent rights outside of the Boston circle, sued Burke for patent infringement. The Court stated that “when the patentee ... sells a machine or instrument whose sole value is in its use, he receives the consideration for its use and he parts with the right to restrict that use.” Id. 84 U.S. (17 Wall.) at 456. The Court remarked that the coffin- lid “perishes in the first use of it”, id. 84 U.S. (17 Wall.) at 456, and that to imply a geographic limitation on the purchaser “would be to engraft a limitation upon the right of use not contemplated by the statute nor within the reason of the contract”. Id. This holding is in accord with the other cases of that era, e.g., Bloomer v. McQuewan, 55 U.S. (14 How.) 539, 14 L.Ed. 532 (1852), wherein the Court held that when the sale of the patented device was without restriction, the purchaser need not pay an additional sum when the patent term was extended; and Mitchell v. Hawley, 83 U.S. (16 Wall.) 544, 21 L.Ed. 322 (1873), wherein the Court stated: Sales of the kind may be made by the patentee with or without conditions, as in other cases. Id. 83 U.S. (16 Wall.) at 548. In Mitchell v. Hawley the accused infringer had purchased a patented machine that was licensed for use only during the original term of the patent grant. After the patent term was extended the defendant argued that by virtue of his purchase he had acquired title free of the license condition. The Court disagreed, upholding the restriction. In Keeler v. Standard Folding Bed Co., 157 U.S. 659, 15 S.Ct. 738, 39 L.Ed. 848 (1895), the Court restated that the purchaser of a patented machine, without any conditions, may use or resell the device anywhere in the United States, explaining: “[When a patentee] has himself constructed a machine and sold it without any conditions, or authorized another to construct, sell, and deliver it, or to construct," }, { "docid": "23483387", "title": "", "text": "patented gas and water pipes, knowing that they were to be laid in the streets of Hartford, Connecticut, a territory, the right for which the seller did not own under the patent. The pipes were laid in that city. It was held, following Adams v. Burke, that the seller was not liable, in an action for infringement, to the owner of the patent for Connecticut. The action in this case was brought not against the user, but against the manufacturer and vendor of the patented article, and it was held that, as the sale was completed in Michigan, neither the actual use of the pipes in Connecticut, nor the knowledge on the part of the defendants that they were intended to be used there, could make them liable. This case also involved the right to .use and not to sell, and was held to be indistinguishable from Adams v. Burke. It differed from that only in the fact that the action was brought against the vendor. The machines or implements thus referred to in these cases are such articles as are exhausted or consumed in their use; that is, where articles are of no value after a single use, there is no restriction on their further use in favor of the patentee or assignee. \"When a patented article of that kind, the whole value of which consists in its use for a particular purpose, and which value ceases when its capability of use for that purpose is gone, the monopoly of the patentee or his assignee over it must necessarily cease upon its sale to the purchaser. Upon the other hand, in Boesch v. Graff, 133 U. S. 697, it was held that one who purchased articles covered by a patent in a foreign country, and • imported them into the United States, could not sell them here without the license or consent of the owner of the American patent, although they were purchased in a foreign country from a person authorized to sell them. This is the only case decided by this court in which the right of a" } ]

[ { "docid": "21093781", "title": "", "text": "are similarly situated in that the potential class is limited to only those employees in one location who fall within discreet salary grade levels and were not paid proper overtime compensation for the hours they worked in excess of forty per week. Defendant, on the other hand, argues that plaintiffs are not proper representatives of the opt-in plaintiffs because each employee performs varied job duties, and moreover, that the class, as defined, is not appropriate because the scope of the class depends upon the outcome of the merits of the litigation. Furthermore, defendant argues that plaintiffs’ claim that they were improperly classified as exempt requires a highly fact-specific analysis of each employee’s job responsibilities, making class treatment inappropriate. The Court agrees with defendant. The FSLA does not define the term “similarly situated,” but courts that have addressed the issue have generally explicitly adopted or implicitly recognized a two-step approach. See Thiessen v. General Electric Capital Corp., 996 F.Supp. 1071, 1080 (D.Kan.1998) (and cases cited therein). Under this approach, the court first makes a determination at the “notice stage,” ie., the point at which the court determines whether notice of the action should be given to potential class members. Id. Because at this point the court usually has only minimal evidence before it-the pleadings and any affidavits submitted by the parties-“this determination is made using a fairly lenient standard, and typically results in ‘conditional certification’ of a representative class.” Id. (quoting Brooks v. BellSouth Telecommunications, Inc., 164 F.R.D. 561, 568 (N.D.Ala.1995)). At this stage, some courts have required “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. See, e.g., Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392, 407 (D.N.J.1988). In the next step of this approach, the court “makes a second determination after discovery is largely complete and the case is ready for trial.” Thiessen, 996 F.Supp. at 1080. In its analysis of the “similarly situated” question at this stage, the court has much more information on which to base its decision and, as a" } ]

[ { "docid": "16488417", "title": "", "text": "informed”). The Affidavit of Lisa West states that Plaintiff, as head waiter, trained the waitstaff on Double Nickel’s policies, including the tip pool and the tip credit. (Defs.’ App. in Supp. of Resp. at 2.) “Employers do not have to ‘explain’ the tip credit to employees, however; it is enough to ‘inform’ them of it.” Chan v. Triple 8 Palace, Inc., 2006 WL 851749 * 19 (S.D.N.Y.2006) (citing Kilgore, 160 F.3d at 298). Finally, it appears to the Court that Plaintiffs request for notice may be too broad. Defendants have asserted that Plaintiff worked only for Spanky’s Restaurant II, Inc. d/b/a Double Nickel Steakhouse and that Defendant Lady West Enterprises, LTD d/b/a Double Nickel Steakhouse and Lisa B. West are not entities which ever employed Plaintiff. (Defs.’ Second Am. Answer 2.) Specifically, Lady West Enterprises, LTD asserts that it is a successor entity to Spanky’s II and that Plaintiff only worked for Spanky’s II during his employment at Double Nickel Steakhouse. (Id.) Moreover, Plaintiffs Amended Complaint makes no mention of dates of employment for himself or any other potential plaintiff. Thus, the dates set out in the proposed notice have no basis in the Amended Complaint. As such, the proposed notice may be too broad in the dates for employment by potential plaintiffs. IV. CONCLUSION Therefore, for the above-stated reasons and for the reasons argued by the Defendants, the Court finds under the facts of this case that notice to potential class members would be improper at this time. In exercising its discretion, the Court finds that Plaintiff has failed to show that notice is required under the circumstances of this case. Plaintiffs Motion for Notice to Potential Class Members is DENIED. SO ORDERED. . Although Plaintiff's Motion was titled as Plaintiff's Unopposed Motion, after substitution of counsel for Defendants, Defendants filed Defendants' Notice of Opposition to Plaintiff's Motion. . Plaintiff filed Plaintiff's Reply on April 24, 2007, without first seeking leave of Court. The judge-specific requirements for this Court state that the Court “will entertain only motions and responses but no replies unless otherwise ordered.” See Sam R. Cummings," }, { "docid": "3642336", "title": "", "text": "Roughneck/Rigger job “is not skilled work — it is just straight-up hard labor.” (McCloud Aff. ¶ 3.) Defendant points out that, in contrast, the Crane Operators have specialized training and experience, and are certified to operate cranes. (Ex. A to Mot. Certify, Estela V. Moscot Aff. ¶ 13.) “For the class representative to be considered similarly situated to the potential opt in class members, the class representative must be similarly situated in terms of job requirements and similarly situated in terms of payment provisions.” Ryan, 497 F.Supp.2d at 825 (citing Dybach v. State of Florida Dept. of Corrections, 942 F.2d 1562, 1567-68 (11th Cir.1991)). Plaintiffs “need only show that their positions are similar, not identical, to putative plaintiffs.” Jesiek v. Fire Pros, Inc., 275 F.R.D. 242, 246 (W.D.Mich.2011). See also England v. New Century Financial Corporation, 370 F.Supp.2d 504, 507 (M.D.La.2005) (“Similarly situated does not necessarily mean identically situated.” (footnote omitted)). “Slight differences in job duties or functions do not run afoul of the similarly situated requirement.” Tolentino v. C & J Spec-Rent Services, Inc., 716 F.Supp.2d 642, 651 (S.D.Tex.2010). However, “if the job duties among potential members of the class vary significantly, then class certification should not be granted.” Dreyer v. Baker Hughes Oilfield Operations, Inc., No. H-08-1212, 2008 WL 5204149, at *2 (S.D.Tex. Dec. 11, 2008) (citing Harris v. Fee Transp. Servs., No. Civ.A.3:05CV0077-P, 2006 WL 1994586, at *5 (N.D.Tex. May 15, 2006) (noting the “significant” differences between the job duties of potential plaintiffs); Aguirre v. SBC Commc’ns, Inc., No. H-05-2198, 2007 WL 772756, at *9 (S.D.Tex. Mar. 12, 2007) (noting that plaintiffs are not similarly situated if their job duties vary “substantially”)); Johnson, 2007 WL 5200224, at *9 (“The Court recognizes that there are some differences between plaintiffs’ employment experiences as assistant managers. But the terms of the FLSA’s collective action provision allow for differences. To pursue claims against an employer, plaintiffs must be similarly situated. They do not have to be identically situated.” (emphasis in original)). Examining Plaintiffs’ Motion and the attached affidavits, as well as Defendant’s briefing, it is clear that the Crane Operators and" }, { "docid": "11475280", "title": "", "text": "medical malpractice cases, 735 ILCS 5-2-622, has been applied in federal diversity litigation as a substantive rule. See Thompson by Thompson v. Kishwaukee Valley Medical Group, No. 86 C 1483, 1986 WL 11381, at *2 (N.D.Ill. Oct. 6, 1986); see also Landstrom v. Illinois Dep't of Children and Family Servs., 699 F.Supp. 1270, 1282 (N.D.Ill.1988), aff'd, 892 F.2d 670 (7th Cir. 1990). . We note that Federal Rule of Civil Procedure 15(a) grants a party the right to \"amend” a \"pleading” once as a matter of course prior to the filing of an answer, and the defendants in this case have yet to answer. However, we do not think that filing a § 2-623 affidavit subsequent to initiating the lawsuit constitutes an amendment to a pleading under Rule 15(a); rather, § 2-623(a)(2) refers to filing the affidavit “after filing of the complaint.” Accordingly, applying the substantive filing rule expressed in ' § 2-623 in this diversity action properly includes applying the Illinois law governing whether to permit untimely filed affidavits under § 2-623. .We note that the few federal decisions addressing the issue have applied McCastle to untimely § 2—623(a)(1) affidavit filings. Moran, 907 F.Supp. at 1229; Medrano, 1995 WL 756856, at *2-4. . The plaintiffs mislabeled their response brief in opposition of the defendants’ motion as a “reply” brief; we will refer to the response as \"Pl.'s Resp.,” and the reply as \"Pl.’s Reply.” . Because the defendants were served with the complaint after August 8, Defs.’ Notice of Removal ¶ 1, the notice of removal was timely filed within thirty days under 28 U.S.C. § 1446(b). . After we dismissed the case for want of prosecution on October 13, the plaintiffs filed a notice of motion to reinstate on October 30; the plaintiffs noticed the motion for November 7 as the date of presentation. We granted the motion on that date. On November 17, the defendants moved to dismiss for failure to attach a § 2-623 affidavit. It was at this time, the plaintiffs' attorneys aver, that they decided to attach the affidavit and expert’s report to their" }, { "docid": "14227007", "title": "", "text": "arguments not otherwise made. See, e.g., infra note 16 (discussing Pl.’s 56.1 Response ¶ 21). Fifth, though admittedly less important, the Statement fails to conform to my Individual Practices which require litigants to reproduce each entry in the moving party's Rule 56.1 Statement and set out the opposing party’s response directly beneath it. Individual Practices Rule 2(C)(1). This requirement is also contained in the individual rules of other judges in this District and in this courthouse before whom Plaintiff's counsel frequently appears. The balance of counsel's submissions in no way serve to cure the deficiencies in Plaintiff's 56.1 Statement and, indeed, Plaintiff’s other submissions simply serve to add to the Court's burden. For example, Plaintiff's Affidavit is replete with improper averments, including statements not based on personal knowledge and assertions that are explicitly contradicted by admissible evidence in the record (including Plaintiff's prior sworn testimony) and Plaintiff’s other submissions. See, e.g., infra notes 7, 16, 52 (discussing Pl.’s Aff. Opp. Def.’s Mot. Summ. J. (“Pl.'s Aff.”) ¶¶ 4, 13, 24, 29-30); see also Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 131 n. 12 (2d Cir.2004) (noting that district court was free to disregard hearsay statements and speculation in affidavits); Flaherty v. Filardi, No. 03 Civ. 2167(LTS)(HBP), 2007 WL 163112, *4-5 (S.D.N.Y. Jan. 24, 2007) (disregarding inadmissible portions of plaintiff's affidavit in analyzing motion for summary judgment); Morris v. Northrop Grumman Corp., 37 F.Supp.2d 556, 568-69 (E.D.N.Y.1999) (same); Rojas v. Roman Catholic Diocese of Rochester, 783 F.Supp.2d 381, 406-07 (W.D.N.Y.2010) (plaintiff's affidavit that disputes her own prior sworn testimony must be disregarded), affd, 660 F.3d 98 (2d Cir.2011), cert, denied, - U.S. -, 132 S.Ct. 1744, 182 L.Ed.2d 530 (2012); Jeffreys v. City of New York, 426 F.3d 549, 554-55 (2d Cir.2005) (same) (citing Aziz Zarif Shabazz v. Pico, 994 F.Supp. 460, 468-71 (S.D.N.Y.1998) (Sotomayor, J.), affd, 205 F.3d 1324 (2d Cir.2000)). Plaintiff’s Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment, while loaded with factual arguments which could conceivably have- raised a genuine issue of material fact, does not contain one single citation to the" }, { "docid": "17074942", "title": "", "text": "the plaintiffs representation that he was the only African-American in the department does not, alone, suggest the existence of racial animus. See Singh v. U.S. House of Representatives, 300 F.Supp.2d 48, 57 (D.D.C.2004) (“The mere fact that Ms. Singh was the sole non-Caucasian on the Committee staff does not, without something more, suffice to make the necessary causal connection between Ms. Singh’s race, color, and national origin and the alleged mistreatment.”). The plaintiff offers nothing more than his own statement that he was treated differently than his other co-workers, stating, “[s]he was tough to me only, and I am the only black guy in the placet ] [a]nd she wouldn’t do that to everybody else[;] [t]hat was the problem.” Pl.’s Opp’n, Ex. 2 (Pl.’s Dep.) at 73:4-6. However, when considering a summary judgment motion “the Court need not rely on any ‘conelusory allegations unsupported by factual [evidence].’ ” Harris v. Wackenhut Servs., Inc., 648 F.Supp.2d 53, 58 (D.D.C.2009) (citing Pub. Citizen Health Research Grp. v. FDA 185 F.3d 898, 908 (D.C.Cir.1999)). Lastly, the plaintiff claims that the testimony of other employees provides evidence of the management’s racial animus. However, a review of the cited testimony taken in context is not demonstrative of racial animus. See Def.’s Reply, Ex. 4 (Excerpts of Rajnikand Patel’s Affidavit, September 15, 2005) at 9:6-10:22 (stating that the plaintiff appeared isolated and was possibly discriminated against by coworkers because they were speaking Tagalog, a predominant language in the Philippines, and could have been making discriminatory statements about the plaintiff); Def.’s Reply, Ex. 5 (Excerpts of Mary Lucille Moyer Affidavit, September 19, 2005 (“Moyer Aff.”) at 15:4-16:21 (noting that the plaintiff was labeled as a “troublemaker” and that the plaintiff had difficulty getting along with other employees, including herself); Def.’s Reply, Ex. 6 (Excerpts of Erlinda Bartolome-Orozco Affidavit, September 12, 2005 (“Bartolome-Orozco Aff.”) at 10:12-12:1 (stating that although it appeared to her that the plaintiff felt he was being discriminated against, Lee “treats Mr. Turner fairly, just like she treats us”). It appears that the plaintiff, as well as some of his co-workers, felt uncomfortable, or perhaps" }, { "docid": "12945171", "title": "", "text": "and alternatives to, the hemi-Fontan that Defendants purportedly failed to disclose. (Resp. to Madden Partial Summ. J. Mot., Ex. B; Resp. to Papacoda Partial Summ. J. Mot., Ex. B.) As for causation, Plaintiffs aver that they may show this by demonstrating that had they been properly informed, they would have made a different decision about the surgeries that Kaitlyn and Mykenzie underwent. (Resp. to Madden Partial Summ. J. Mot. 11; Resp. to Papacoda Partial Summ. J. Mot. 12.) Plaintiffs conclude that “[t]he record on these issues is sufficient to deny summary judgment.” (Resp. to Papacoda Partial Summ. J. Mot. 12; see also Resp. to Madden Partial Summ. J. Mot. 11) Defendants reply that Madden and Mrs. Papaeoda’s affidavits “should be stricken as ... ‘sham affidavit[s]’ as a party may not submit an affidavit changing her testimony in response to a summary judgment motion.” (Madden Partial Summ. J. Reply 1; Papaeoda Partial Summ. J. Reply 1.) In particular, Defendants contend that Madden’s affidavit contradicted her testimony that she “was aware that there would be potential modifications to the second surgery so Mykenzie could have a third noninvasive surgery.” (Madden Partial Summ. J. Reply 3.) In a subsequent letter to the Court, Defendants explained that Madden’s affidavit stated that “[p]rior to Mykenzie’s second surgery, the hemi-Fontan, neither Dr. Norwood nor Dr. Pizarro discussed the surgery with me,” or “[w]hat the procedure involved” (Madden Aff. ¶¶8, 11a). Letter from Sarah Lynn Petrosky, Defendants’ Counsel, to Judge Michael M. Baylson 2 (Dec. 23, 2009) (on file with the Court) (hereinafter Madden Defs.’ Letter). Defendants, however, aver that this contradicts her deposition testimony that “[r]ight before [Mykenzie’s] surgery, [Dr. Pizarro] said that she would have ... the second procedure----the day before surgery is when he presented to me that she would go in and that was the first time I heard that it wouldn’t have to be an invasive surgery (Madden Dep. 89:8-9, 14, 17-20).” Madden Defs.’ Letter 2. In the Papacoda case, Defendants aver that Mrs. Papacoda’s affidavit stated that prior to Kaitlyn’s hemi-Fontan surgery, neither Dr. Norwood nor Dr. Pizarro discussed the surgery" }, { "docid": "16488410", "title": "", "text": "attempts to address Defendants’ arguments relating to whether Plaintiff is similarly situated. Specifically, Plaintiffs Exhibit B, the second affidavit by Plaintiff, is an attempt by Plaintiff to rebut Defendants’ averments contained in the affidavit of Lisa West. However, Plaintiffs second affidavit (Pl.’s Ex. B) will not be considered by the Court. The second affidavit by Plaintiff is not only undated by the affiant (Plaintiff), but the jurat is also undated. (See, e.g., Pl.’s Reply, attached Ex. B.) The second affidavit would technically be invalid as an affidavit because the jurat is insufficient. See 3 Am.Jur.2d Affidavits § 10 (“A ‘jurat’ is generally defined as a certificate added to an affidavit stating when, before whom, and where it was made.”) (emphasis added). Failure to include the date in the jurat is evidence from the face of the affidavit that the execution may not have been made in the notary’s presence. See id. at § 11 (“To attack an affidavit on improper execution grounds, there must be either evidence from the witness or notary or from the face of the affidavit showing that the execution was not made in the notary’s physical presence.”); Bonds v. Cox, 20 F.3d 697, 702 (6th Cir.1994) (“Although [the plaintiffs] additional affidavits were subscribed under penalty of perjury, they were undated. Given the explicit language of the statute, they must therefore be excluded from consideration.”); Cordero-Soto v. Island Fin., Inc., 418 F.3d 114, 120 (1st Cir.2005) (finding undated and unsigned affidavit invalid). It is also invalid as a 28 U.S.C. § 1746 declaration because it is undated in any form or fashion. 28 U.S.C. § 1746 (requiring un-sworn declaration to be dated); Jennings v. Nat’l R.R. Passenger Corp., 1998 WL 460270, *7 (N.D.Ill.1998) (“Additionally, [the] affidavit contains no date of execution. The court would be justified in striking these affidavits for technical non-compliance with Rule 56(e) and § 1746.”). Thus, any averments made in Plaintiffs second affidavit attached to his Reply will not be considered by the Court. Plaintiff has therefore failed to meet his burden of satisfying the first step under Lusardi-that notice should be given" }, { "docid": "16488401", "title": "", "text": "alleges that Defendants, in violation of 29 U.S.C. § 203(m), required Plaintiff and other similarly situated waitstaff to participate in a “tip pool” sharing arrangement with employees who do not customarily and regularly receive tips. On January 23, 2007, Plaintiff filed a Consent to Join Collective Action noticing the Defendants and the Court that Sherman Scholars consented to be a party plaintiff in the lawsuit. Defendant Spanky’s Restaurant II, Inc. d/b/a Double Nickel Steakhouse (“Double Nickel”) is in the restaurant business. Specifically, as to Plaintiffs allegations against Double Nickel, Double Nickel is an upper-end steakhouse located in Lubbock, Texas. In his Amended Complaint, Plaintiff has also named Lisa West and Lady West Enterprises, LTD d/b/a Double Nickel Steakhouse. Lady West denies any liability to Plaintiff because Lady West asserts in Defendants’ Second Amended Answer that Lady West did not do business as Double Nickel during the time of Plaintiffs employment. Lady West asserts that it is a successor entity to Spanky’s II and that during Plaintiffs employment he worked only for Spanky’s II d/b/a Double Nickel. Plaintiff alleges that he worked for Defendants as a waiter for $2.13 per hour plus tips. Plaintiff further alleges that he and similarly situated waitstaff were required to share their tip pool with “expediters.” Plaintiff, however, makes no allegations whatsoever that he or any other potential plaintiff failed to receive at least the minimum hourly wage required by law while employed at Double Nickel even after the allegedly illegal pooling payouts to those who do not customarily and regularly receive tips. (Pl.’s Am. Compl.) Rather, Plaintiff alleges that he and other tipped employees should be reimbursed for the tip credit he alleges was unlawfully deducted from their wages and used to tip out other employees. Finally, Plaintiff alleges that Double Nickel failed to display the notice required by the FLSA for tipped employees thereby disqualifying Double Nickel from “tip credit” under the FLSA. Defendants deny that Plaintiff was similarly situated with any other potential plaintiffs in this case. Defendants further deny that Plaintiff was required to share tips with any non-service personnel who do" }, { "docid": "16488409", "title": "", "text": "required. D'Anna, 903 F.Supp. at 894. Defendants have clearly denied that Plaintiff was similarly situated because they assert that Plaintiffs job duties and responsibilities differed from those of other employees whom Plaintiff alleges are potential class members. (Defs.’ Second Am. Answer 2 and 4; Defs.’ Resp. 6-8.) Moreover, Defendants have moved beyond pleading and provided affidavit evidence by way of Lisa West’s Affidavit identifying the differences in Plaintiffs duties as head waiter as opposed to those of other waitstaff. Specifically, Lisa West avers that Plaintiff exercised substantial supervisory duties, including recommendations regarding hiring and firing of employees and training all waitstaff. Lisa West further states in her affidavit that Plaintiff had distinct qualifications and employment skills as well as different responsibilities and was compensated differently. Harris v. Fee Transp. Servs., Inc., 2006 WL 1994586 *5 (N.D.Tex. May 16, 2006) (Solis, J.) (citing with approval Morisky v. Pub. Serv. Elec. & Gas Co., 111 F.Supp.2d 493, 498 (D.N.J.2000) (discussing that dissimilarities between job duties of the named plaintiff and opt-in plaintiffs make certification inappropriate)). Plaintiffs Reply attempts to address Defendants’ arguments relating to whether Plaintiff is similarly situated. Specifically, Plaintiffs Exhibit B, the second affidavit by Plaintiff, is an attempt by Plaintiff to rebut Defendants’ averments contained in the affidavit of Lisa West. However, Plaintiffs second affidavit (Pl.’s Ex. B) will not be considered by the Court. The second affidavit by Plaintiff is not only undated by the affiant (Plaintiff), but the jurat is also undated. (See, e.g., Pl.’s Reply, attached Ex. B.) The second affidavit would technically be invalid as an affidavit because the jurat is insufficient. See 3 Am.Jur.2d Affidavits § 10 (“A ‘jurat’ is generally defined as a certificate added to an affidavit stating when, before whom, and where it was made.”) (emphasis added). Failure to include the date in the jurat is evidence from the face of the affidavit that the execution may not have been made in the notary’s presence. See id. at § 11 (“To attack an affidavit on improper execution grounds, there must be either evidence from the witness or notary or from the" }, { "docid": "12061", "title": "", "text": "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 identifying by name similarly situated employees”). In the instant case, Plaintiffs allege that they were subjected to the same FLSA violations as the potential opt-in plaintiffs while employed by the Defendants. See DE 9 at 7. Each named Plaintiff has submitted an affidavit stating that she believes the other twenty to thirty cleaners employed by Defendants were not provided with proper payment for overtime. See Affidavits of Maribel Rodriguez (“M. Rodriguez Aff.”), Gissella Rodriguez (“G. Rodriguez Aff.”), Norma Reyes (“Reyes Aff.”), and Maria Antunez (“Antunez Aff.”) at ¶ 2, attached as Exhibits 3, 4, 5, and 6 to the Declaration in Support of Plaintiffs’ Motion (DE 8). Further, the four affidavits submitted specifically name additional coworkers, employed as cleaners with the same job duties as Plaintiffs, who also were allegedly not properly compensated for overtime by Defendants. See M. Rodriguez Aff. ¶ 11 (naming two cleaners by first name only, other than Plaintiffs, who allegedly were not properly compensated for overtime worked); see also G. Rodriguez Aff. ¶ 11, Reyes Aff. ¶ 11, and Antunez" }, { "docid": "16488416", "title": "", "text": "engaged in occupation which customarily and regularly receives more than $30 a month in tips). Plaintiffs claims also consist of a claim for failure “to display the notice required by the FLSA for tipped employees.” Though Plaintiff alleges that Double Nickel “failed to display the notice required by the FLSA for tipped employees,” it is not clear that notice must be “displayed.” See Davis v. B & S, Inc., 38 F.Supp.2d 707, 719 (N.D.Ind.1998) (finding that notice can also be conveyed to employees through an individual co-worker because other courts have found that an employer may meet the notice require ment (1) by simply providing conforming written materials to its employees, (2) by simply providing its employees with a file folder containing the relevant information or by prominently displaying a poster, or (3) by making the employees aware of the existence of the tip credit or its amount and that it intends to treat tips as satisfying part of the employer’s minimum wage obligation); 29 U.S.C. § 203(m) (using terminology “unless such employee has been informed”). The Affidavit of Lisa West states that Plaintiff, as head waiter, trained the waitstaff on Double Nickel’s policies, including the tip pool and the tip credit. (Defs.’ App. in Supp. of Resp. at 2.) “Employers do not have to ‘explain’ the tip credit to employees, however; it is enough to ‘inform’ them of it.” Chan v. Triple 8 Palace, Inc., 2006 WL 851749 * 19 (S.D.N.Y.2006) (citing Kilgore, 160 F.3d at 298). Finally, it appears to the Court that Plaintiffs request for notice may be too broad. Defendants have asserted that Plaintiff worked only for Spanky’s Restaurant II, Inc. d/b/a Double Nickel Steakhouse and that Defendant Lady West Enterprises, LTD d/b/a Double Nickel Steakhouse and Lisa B. West are not entities which ever employed Plaintiff. (Defs.’ Second Am. Answer 2.) Specifically, Lady West Enterprises, LTD asserts that it is a successor entity to Spanky’s II and that Plaintiff only worked for Spanky’s II during his employment at Double Nickel Steakhouse. (Id.) Moreover, Plaintiffs Amended Complaint makes no mention of dates of employment for himself" }, { "docid": "3478891", "title": "", "text": "concludes that Martin has failed to show that the District’s nondiscriminatory reason — that she failed to apply for the position — is pretextual. See Reply Supp. Defs.’ Mot. Dismiss & Summ. J. 4; Pl.’s Am. Statement of Facts ¶ 46 (\"Plaintiff did not submit a new application in relation to the reposting of the SI positions.”). Martin has produced an automatically generated confirmation indicating that in February 2009, she submitted a resume for an \"Investigator” position, but this evidence does not create a dispute of fact as to her failure to apply for the second Supervisory Investigator position. See Confirmation, Pl.’s Ex. 45, ECF No. 128-45. . The District contends that after Jackson offered Martin an opportunity to serve as Relief Supervisory Investigator, Martin declined on the grounds that she refused to answer service calls after hours, as required by the position. But the District cites Jackson’s affidavit, which discusses only the August 2009 denial, not the June 2009 denial challenged by Martin. See Mem. Supp. Mot. Dismiss & Summ. J. 11 (citing Jackson Aff. ¶ 5, Defs.’ Ex. I). The District also cites Hollis’s affidavit, which lacks temporal specificity: No I am not aware that the Complainant [Martin] was denied the opportunity to volunteer for any of these positions [including that of Relief Supervisory Investigator]. The Complainant did volunteer for the relief supervisor [sic] but stated that she did not desire the responsibility of carrying the ABRA Hotline Phone and answering it on a 24 hours basis [sic] when she is off duty. Hollis Aff. ¶ 10, Defs.' Ex. L, ECF No. 118-15. Because the Court is obligated to draw all inferences in Martin’s favor, the Court concludes that Hollis's affidavit, like Jackson's, refers only to Martin’s August 2009 attempt to serve as Relief Supervisory Investigator. The Court need not decide whether the District’s reason for the August 2009 denial is pretextual, since Martin challenges only the June 2009 denial. See Am. Compl. ¶¶ 24-25. . There is potentially a question of whether, on account of her disability, Martin was in fact qualified to serve as Relief Supervisory" }, { "docid": "14227024", "title": "", "text": "meeting occurred before the decision to terminate Risco was made. (FFC Tr. 427:10-15, 458:4-460:4.) . Although Plaintiff’s Affidavit states that this incident occurred on March 27, 2009 (PL’s Aff. ¶ 21), the email itself — which was submitted as part of Plaintiff’s evidence — alleges that this occurred on March 24, 2009. (Sussman Aff. Ex. 5.) . Byrd denies making the statement. (FFC Tr. 538:7-11.) . See infra note 28. . Risco denies that some of the additional incidents occurred, and disputes her co-workers’ characterization of other incidents; however Plaintiff’s Responses do not specifically controvert Defendant’s 56.1 Statement. (PL's 56.1 Response ¶¶ 13-15.) The incidents that Risco denies have not been considered for purposes of this Motion. . The parties have failed to explain why Byrd sent the memo to Bruno to recommend Risco's termination after initiating tire personnel action with Risco's IMCOM and ACES/ACTEDS supervisors. As West Point Garrison Commander, Bruno was Byrd's ultimate supervisor, but Risco was not a West Point employee. (FFC Tr. 856:12-15.) There is contradictory evidence in the record about whether anyone at West Point had the authority to terminate Risco. (Compare id. 343:11-344:6 (Byrd testifying that no one at West Point had the authority to approve Risco’s termination) with id. 856:16-857:8 (Riddle testifying that both Bilello and IMCOM had the authority to terminate Risco's employment).) . Plaintiff's Response to Paragraph 21 in Defendant's 56.1 Statement begins “Deny as to the claims,” and cites to a paragraph in Risco’s Affidavit in which she avers that \"... none of the incidents cited in [] paragraph [21] ever happened.” (PL's 56.1 Response ¶21 (citing Pl.’s Aff. ¶ 4).) However, Plaintiff's 56.1 Response does not dispute the fact set forth in Defendant's 56.1 Statement. See supra note 2. . Plaintiff submitted only the first two pages of Byrd's memo, which contains his recommendation to discharge Risco. (Sussman Aff. Ex. 3.) Defendant’s Exhibit K contains additional pages, which describe specific examples of conduct in support of Byrd’s recommendation, including statements written by Risco’s co-workers. (Bober Decl. Ex. K, at 3-10.) While some of the events described by Byrd are" }, { "docid": "5882025", "title": "", "text": "Madu, P.C. v. Socketworks Ltd. Nigeria, 265 F.R.D. 106, 122-23 (S.D.N.Y.2010). In this case, however, plaintiff seeks leave to amend the Second Amended Complaint to include the allegations presented in her Affidavit in Opposition to the instant motion (ECF No. 17-2, Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to Dismiss (\"Opp.”), at 7-8; ECF No. 17-1, Affidavit of Doreen Del Monaco Doyle dated 4/27/12 (\"PL Aff.”)), a request which defendant opposes (ECF No. 16, Defendant’s Reply Memorandum (\"Reply”), at 1-2). The court need not resolve that dispute because, as explained infra, plaintiff's claims still fail as a matter of law even when considering the additional allegations in her Affidavit as her proposed amendments to a proposed Third Amended Complaint and, hence, defendant’s motion must be granted with prejudice. See, e.g., Candelaria v. Spurlock, No. 08 Civ. 1830, 2008 WL 2640471, at *5 (E.D.N.Y. July 3, 2008) (citing Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001)). The court thus treats the additional allegations set forth in plaintiff's Affidavit as formal amendments to the Second Amended Complaint for purposes of deciding this motion. . Defendant attached a copy of the CBA to its motion to dismiss. (See ECF No. 15, Galligan Decl., Ex. B, 2005-2009 Agreement between Defendant and Union (\"CBA”).) The court has considered the CBA on the instant motion because plaintiff’s proposed amendments to the Second Amended Complaint in her Affidavit include allegations that explicitly reference the union, the union agreement, and the CBA. (See PL Aff. ¶¶ 7-8.) The CBA is, therefore, incorporated by reference into plaintiff’s Second Amended Complaint, as amended by her Affidavit dated 4/27/12, or is at least a document plaintiff had knowledge of and relied upon in bringing this suit. See Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993) (on motion to dismiss \"consideration is limited to the factual allegations in [the] complaint,” \"documents attached to the complaint as an exhibit or incorporated in it by reference,” \"matters of which judicial notice may be taken,” or documents either in \"plaintiff[’s] possession or of which plaintiff!] had" }, { "docid": "16488408", "title": "", "text": "with regard to their pay provisions. Dybach v. Florida Dep’t of Corrections, 942 F.2d 1562, 1567-68 (11th Cir.1991). Here, Plaintiff has failed to identify potential plaintiffs other than one additional person who has filed notice with this Court. See Simmons v. T-Mobile USA, Inc., 2007 WL 210008 *9 (S.D.Tex. Jan.24, 2007) (discussing and citing authority for the requirement that there should be a showing “that at least a few similarly situated individuals seek to join the lawsuit”) (emphasis added to distinguish a few from one); H & R Block, 186 F.R.D. at 400 (finding no notice where plaintiff failed to identify potential plaintiffs); Harper v. Lovett’s Buffet, Inc., 185 F.R.D. 358, 361-62 (M.D.Ala.1999) (showing of other plaintiffs who desire to opt-in is required). Plaintiff has also failed to submit evidence showing anything other than Plaintiffs conclusory allegations contained in the form of his first affidavit. See Haynes v. Singer Co., 696 F.2d 884, 887 (11th Cir.1983) (noting no evidence existed to justify authorizing notice). A factual showing that any potential plaintiffs are similarly situated is required. D'Anna, 903 F.Supp. at 894. Defendants have clearly denied that Plaintiff was similarly situated because they assert that Plaintiffs job duties and responsibilities differed from those of other employees whom Plaintiff alleges are potential class members. (Defs.’ Second Am. Answer 2 and 4; Defs.’ Resp. 6-8.) Moreover, Defendants have moved beyond pleading and provided affidavit evidence by way of Lisa West’s Affidavit identifying the differences in Plaintiffs duties as head waiter as opposed to those of other waitstaff. Specifically, Lisa West avers that Plaintiff exercised substantial supervisory duties, including recommendations regarding hiring and firing of employees and training all waitstaff. Lisa West further states in her affidavit that Plaintiff had distinct qualifications and employment skills as well as different responsibilities and was compensated differently. Harris v. Fee Transp. Servs., Inc., 2006 WL 1994586 *5 (N.D.Tex. May 16, 2006) (Solis, J.) (citing with approval Morisky v. Pub. Serv. Elec. & Gas Co., 111 F.Supp.2d 493, 498 (D.N.J.2000) (discussing that dissimilarities between job duties of the named plaintiff and opt-in plaintiffs make certification inappropriate)). Plaintiffs Reply" }, { "docid": "7534190", "title": "", "text": "a single decision, policy or plan ... ’ ” Albanil, 2008 WL 4937565, at *6 (quoting Mooney, 54 F.3d at 1214). “Courts who have faced the question of whether movants have established substantial allegations have considered factors such as whether potential plaintiffs were identified; whether affidavits of potential plaintiffs were submitted; and whether evidence of a widespread discriminatory plan was submitted.” H & R Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D.Tex.1999)(internal citations omitted). Ultimately, “[a] court may deny a plaintiffs right to proceed collectively only if the action arises from circumstances purely personal to the plaintiff, and not from any generally applicable rule, policy or practice.” Ryan, 497 F.Supp.2d at 825 (quoting Donohue v. Francis Servs., Inc., 2004 WL 1161366, at *1 (E.D.La. May 24, 2004)). B. CLASS MEMBERS ARE “SIMILARLY SITUATED” Plaintiff has raised only two abbreviated objections to Plaintiffs request for conditional certification. First, in the present controversy, Defendant objects that, “all parties that are interested in being a part of this suit are already involved.” See, Def. Reply at 2. However, contrary to Defendant’s argument, the joinder of additional plaintiffs after the inception of the case is persuasive evidence that a putative class does exist. See, Shaffner v. Cash Register Sales & Serv. of Houston, 2006 WL 1007542, at *1 (S.D.Tex. Apr. 17, 2006). In the present case, potential plaintiff's have been identified, and affidavits of potential plaintiffs have been submitted. Specifically, since the filing of the lawsuit, twelve current or former Alligator Grill employees have filed Notices of Consent to join a collective action. See, Clerks Docket # s 4 and 10. Four of the current employees who have subsequently joined the present lawsuit have filed affidavits supporting all of Plaintiffs allegations. See, Pl. Mot. At Ex. 2-5. Therefore, the record affirmatively establishes that other servers and bartenders desire to opt in to the class. Equally important, Defendant has subsequently acknowledged that it underpaid overtime wages and may have improperly charged employees for their uniforms for the approximate four-year time period alleged in the present lawsuit. See, Pl. Mot. at Ex. 6, p.3 and" }, { "docid": "18055113", "title": "", "text": "stating that, \"[o]bviously, [she] would have had more responsibility, more prestige, and other opportunities” had she been promoted. Id. The court granted defendant’s motion for summary judgment, because the plaintiff failed \"to submit evidence of recent officer promotions which established that pay increases, supervisory responsibilities, and other duties or benefits regularly accompanied the change in status.” Id. In the case sub judice, Ms. Bond offers specific examples to rebut Defendant’s con-tenlions. For example, although Defendant argues that Plaintiff’s \"assertion that the no smoking policy was never enforced is based on a self serving affidavit without factual support,” the record offers sufficient evidence to support Ms. Bond’s contention. (Def.'s SUF Reply ¶ 30.) Specifically, Plaintiff offers Lieutenant Collier’s deposition testimony which indicates that he has seen cigarette butts on the floor in no-smoking areas (Pl.’s Resp. Ex. 12, Collier Dep. at 32), the results from the University of Illinois at Chicago ventilation evaluation which recommended \"limit smoking” at the CCDOC (Pl.’s Resp. Ex. 5 at p. 12), and a letter from the IDOL indicating that the \"[s]moking [p]olicy was not enforced” at the CCDOC (Pl.'s Resp. Ex. 14.) Accordingly, the Court concludes that Jones is not applicable to the facts sub judice. In Patterson, the plaintiff responded that she could not recall, or did not know the answers to proffered questions, on 255 occasions during her deposition. 150 F.3d at 723. The plaintiff then submitted an affidavit that was significantly more detailed than her deposition testimony, and specifically addressed incidents included in the defendant’s motion for summary judgment. Id. at 724. Because \"no independent evidence could be found in the record that would support her claims,” the court granted summary judgment in favor of the defendant. Id. The court reasoned that ”[a]n affidavit cannot be used to create a genuine issue of material fact where the affidavit differs from prior deposition testimony to the point that it is unreliable.” Id. at 720. Here, Ms. Bond did not contradict deposition testimony in her affidavit, nor did she use her affidavit to \"gap-fill” her deposition testimony in an effort to stave off Defendant's" }, { "docid": "16488411", "title": "", "text": "face of the affidavit showing that the execution was not made in the notary’s physical presence.”); Bonds v. Cox, 20 F.3d 697, 702 (6th Cir.1994) (“Although [the plaintiffs] additional affidavits were subscribed under penalty of perjury, they were undated. Given the explicit language of the statute, they must therefore be excluded from consideration.”); Cordero-Soto v. Island Fin., Inc., 418 F.3d 114, 120 (1st Cir.2005) (finding undated and unsigned affidavit invalid). It is also invalid as a 28 U.S.C. § 1746 declaration because it is undated in any form or fashion. 28 U.S.C. § 1746 (requiring un-sworn declaration to be dated); Jennings v. Nat’l R.R. Passenger Corp., 1998 WL 460270, *7 (N.D.Ill.1998) (“Additionally, [the] affidavit contains no date of execution. The court would be justified in striking these affidavits for technical non-compliance with Rule 56(e) and § 1746.”). Thus, any averments made in Plaintiffs second affidavit attached to his Reply will not be considered by the Court. Plaintiff has therefore failed to meet his burden of satisfying the first step under Lusardi-that notice should be given because the potential class members are similarly situated. See Aguirre v. SBC Communications, Inc., 2006 WL 964554 *6 (S.D.Tex.2006) (noting some factual and evidentiary support of similarly situated is required to authorize notice); Haynes v. Singer Co., Inc., 696 F.2d 884, 888 (11th Cir.1983) (same). Shushan Approach Plaintiff also fails to meet his burden under the more stringent Shushan approach. Because Plaintiff has failed to demonstrate numerosity, it is not clear that any potential plaintiff would be unable to simply utilize the joinder rules to seek inclusion in this action. Additionally, as argued by Defendants, the Plaintiff has failed to show commonality because he has failed to show how he is “similarly situated” to other potential plaintiffs. Other Reasons for Declining to Certify Class and/or Issue Notice There is no clear precedent in this circuit or any other circuit that defines expediters as employees who do not customarily and regularly receive tips. Thus, as Defendants have succinctly stated in their Response, this is a matter res nova for this Court, and all other courts for" }, { "docid": "16488400", "title": "", "text": "AMENDED ORDER CUMMINGS, District Court. At the request of counsel for Defendants, the Court has determined that the Order filed May 7, 2007, should be published. To publish the order in proper form, the May 7, 2007 Order is hereby AMENDED as follows: Came on for consideration the following: (1) Plaintiffs Motion for Notice to Potential Class Members, filed March 26, 2007; (2) Defendants’ Response to Plaintiffs Motion, filed April 16, 2007; and (3) Plaintiffs Opposed Motion for Leave to File Reply, filed May 2, 2007, which is hereby GRANTED and the Reply attached as Exhibit “A” is DEEMED FILED. The Court, having considered Plaintiffs Motion for Notice to Potential Class Members, Defendants’ Response, Plaintiffs Reply, and the arguments and authorities supporting the same, is of the opinion that the Motion for Notice to Potential Class Members should be DENIED. I. BACKGROUND AND RELEVANT FACTS Plaintiff brings this action on behalf of himself and others “similarly situated” to recover for alleged violations under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b) (1996). Plaintiff alleges that Defendants, in violation of 29 U.S.C. § 203(m), required Plaintiff and other similarly situated waitstaff to participate in a “tip pool” sharing arrangement with employees who do not customarily and regularly receive tips. On January 23, 2007, Plaintiff filed a Consent to Join Collective Action noticing the Defendants and the Court that Sherman Scholars consented to be a party plaintiff in the lawsuit. Defendant Spanky’s Restaurant II, Inc. d/b/a Double Nickel Steakhouse (“Double Nickel”) is in the restaurant business. Specifically, as to Plaintiffs allegations against Double Nickel, Double Nickel is an upper-end steakhouse located in Lubbock, Texas. In his Amended Complaint, Plaintiff has also named Lisa West and Lady West Enterprises, LTD d/b/a Double Nickel Steakhouse. Lady West denies any liability to Plaintiff because Lady West asserts in Defendants’ Second Amended Answer that Lady West did not do business as Double Nickel during the time of Plaintiffs employment. Lady West asserts that it is a successor entity to Spanky’s II and that during Plaintiffs employment he worked only for Spanky’s II d/b/a Double" }, { "docid": "3642337", "title": "", "text": "716 F.Supp.2d 642, 651 (S.D.Tex.2010). However, “if the job duties among potential members of the class vary significantly, then class certification should not be granted.” Dreyer v. Baker Hughes Oilfield Operations, Inc., No. H-08-1212, 2008 WL 5204149, at *2 (S.D.Tex. Dec. 11, 2008) (citing Harris v. Fee Transp. Servs., No. Civ.A.3:05CV0077-P, 2006 WL 1994586, at *5 (N.D.Tex. May 15, 2006) (noting the “significant” differences between the job duties of potential plaintiffs); Aguirre v. SBC Commc’ns, Inc., No. H-05-2198, 2007 WL 772756, at *9 (S.D.Tex. Mar. 12, 2007) (noting that plaintiffs are not similarly situated if their job duties vary “substantially”)); Johnson, 2007 WL 5200224, at *9 (“The Court recognizes that there are some differences between plaintiffs’ employment experiences as assistant managers. But the terms of the FLSA’s collective action provision allow for differences. To pursue claims against an employer, plaintiffs must be similarly situated. They do not have to be identically situated.” (emphasis in original)). Examining Plaintiffs’ Motion and the attached affidavits, as well as Defendant’s briefing, it is clear that the Crane Operators and Roughneck/Riggers performed significantly different job duties. See, e.g., Dreyer, 2008 WL 5204149, at *2 (“But, though Dreyer and Stewart valiantly argue that these employees are similar to them because they also respond to user queries regarding computer hardware problems, this similarity is too abstract. The evidence shows that IT workers in the Customer Services Group are principally responsible for providing technical support for users of desktop personal computers, including the software that runs on them. This type of work is fundamentally different from the more complex server-side work that Dreyer and Stewart performed.”). Their tasks, skill level, and pri- or experience differ in important ways, such that Crane Operators and Roughneck/Riggers could not be similarly situated to one another. Nor is this a case where the division between the two positions is porous, Jesiek, 275 F.R.D. at 247 (“On this record, the distinction between ‘installers’ and ‘technicians’ is not set in stone. Field employees move between the two employee categories as needed. The Court is mindful that the burden on Plaintiffs here is lenient. Omitting" } ]

[ { "docid": "6798868", "title": "", "text": "of the diamond shqpe prong, but evidently it did not; and to the man to whom it did ought not to be denied the quality of inventor. There are many instances in the reported decisions of this court where a monopoly has been sustained in favor of the last of a series of inventors, all of whom were groping to attain a certain result, which only the last one of the number seemed able to grasp.” The Barbed Wire Patent, 143 U. S. 275, 283, 12 Sup. Ct. 443, 446 (36 L. Ed. 154). See, also, Loom Co. v. Higgins, 105 U. S. 580, 591, 26 L. Ed. 1177; Consolidated Valve Co. v. Crosby Valve Co., 113 U. S. 157, 179, 5 Sup. Ct. 513, 28 L. Ed. 939. The Wood pump was at once successful commercially as well as mechanically. “In view of the phenomenal success of the patented pipe, after the public became aware of its advantages, * * * we are of the opinion that any doubt as to patentability should be resolved in favor of the patent.” Stillwell v. McPherson, Highway Com’r, 218 Fed. 839, 840, 134 C. C. A. 611, 612. See, also, Mineral Separation, Ltd., v. Hyde, 242 U. S. 261, 270, 37 Sup. Ct. 82, 61 L. Ed. 286. We think that the Wood patent was not invalid for want of novelty. (2) A defense most earnestly urged was that plaintiff’s invention had been anticipated by several patents. Where anticipation is relied on as a defense, it should be clearly proved, and, in cases of reasonable doubt, the doubt should be resolved in favor of the patent attacked. Coffin v. Ogden, 18 Wall. 120, 21 L. Ed. 821; Victor Talking Machine Co. v. Duplex Phonograph Co. (C. C.) 177 Fed. 248; Simonds Rolling Machine Co. v. Hathorn Mfg. Co., 93 Fed. 958, 36 C. C. A. 24. Referring to the Thomson patent, which is claimed to have anticipated the Wood patent, it does not appear to have been put to practical use to any extent. That this should be considered on the question" } ]

[ { "docid": "5940353", "title": "", "text": "S. Ct. 76, 35 L. Ed. 800. The description must be reasonably adequate, in order to warn the public' and competitors of the nature and extent of the monopoly claimed. But the essence of the matter is a new and useful reality, frequently best tested and demonstrated by actual experience. Smith v. Goodyear Co., 93 U. S. 486, 495, 23 L. Ed. 952; Marconi Co. v. DeForest Co. (C. C. A.) 243 F. 560, 564; Kurtz v. Belle Co. (C. C. A.) 280 F. 277. Of course, commercial success alone is no safe guide. Boston, etc., Co. v. Automatic (C. C. A.) 276 F. 910. But when, as in this ease, success is proved to have flowed from the claim in suit, doubts arising from the papers alone disappear. Hubbell Co. v. Gen. Electric, supra. We have no doubt that the court beT low was right in holding that Jennings made an invention, sufficiently described in claim 2, supra. The defendant urges that, even if Jennings did invent, he lost his rights by prior sale and use. We have carefully considered the elaborate and able argument on this point of defendant’s learned counsel, and the evidence relied upon. We need not review it in detail. It is enough to say that we are fully in accord with the conclusions of the trial judge, who “on all the evidence” was not satisfied that apparatus embodying the invention was sold before Juno 15, 1915, which, upon this issue, is the decisive date. To hold prior public use proved beyond a reasonable doubt (Wendell v. Laundry Mach. Co. [C. C. A.] 248 F. 698, 699, 670), in the face of this finding of the learned District Judge, would require a most extraordinary record. Compare Coffin v. Ogden, 18 Wall. 120, 124, 21 L. Ed. 821; The Barbed Wire Patent, 143 U. S. 275, 286, 12 S. Ct. 443, 450, 36 L. Ed. 154; Wilkee v. Manhattan Co., 14 F.(2d) 811; Corrington v. Westinghouse Co. (C. C. A.) 178 F. 711, 715. The weight of evidence is plainly against the defendant. It may be" }, { "docid": "2218061", "title": "", "text": "not. It regards a change as evidence of novelty, the acceptance and utility of change as a further evidence, even as demonstration.” Diamond Rubber Co. v. Consolidated Tire Co., 220 U.S. 428, 435, 31 S.Ct. 444, 447, 55 L.Ed. 527; U. S. Industrial Chemical Co. et al. v. Theroz Co., 4 Cir., 25 F.2d 387; Frick Co. v. Lindsay, 4 Cir., 27 F.2d 59. Applicable also is the following statement from the opinion in Black & Decker Mfg. Co. v, Baltimore Truck Tire Service Corp., 4 Cir., 40 F.2d 910, 914, where we said: \"To the presumption of validity attaching to the grant of the patent by the Patent Office, there is the additional presumption arising from the fact that the invention filled a want arising from a new situation, that it entered into immediate use, and that it met with pronounced commercial success. Tenco Electric Motor Co. v. Apco Mfg. Co., 275 U.S. 319, 48 S.Ct. 170, 72 L.Ed. 298; Diamond Rubber Co. v. Consolidated Rub ber Tire Co., 220 U.S. 428, 31 S.Ct. 444, 55 L.Ed. 527; Pangborn Corporation v. W. W. Sly Mfg. Co., 4 Cir., 284 F. 217. And in addition to this is the presumption arising from the imitation of the patented article by the manufacturer of the alleged infringing device. As to this, we agree with what was said by Judge Hough, speaking for the Circuit Court of Appeals of the Second Circuit in Kurtz v. Belle Hat Lining Co., 280 F. 277, 281: ‘The imitation of a thing patented by a defendant, who denies invention, has often been regarded, perhaps especially in this circuit, as conclusive evidence of what the defendant thinks of the patent, and persuasive of what the rest of the world ought to think.’ ” See also Goodyear Tire & Rubber Co. v. Ray-O-Vac Co., 321 U.S. 275, 279, 54 S. Ct. 593, 88 L.Ed. 721, and Hoeltke v. C. M. Kemp Mfg. Co., 4 Cir., 80 F.2d 912; Brown & Sharpe Mfg. Co. v. Kar Engineering Co. Inc., 1 Cir., 154 F.2d 48. Validity of the Re-issue Patent It" }, { "docid": "22200854", "title": "", "text": "The ordinary presumption of novelty arising from the grant of the patent is greatly strengthened because of the contest in the Patent Office. Hildreth v. Mastoras, 257 U. S. 27, 32, 42 S. Ct. 20, 66 L. Ed. 112; Gairing Tool Co. v. Eclipse Interchangeable Counterbore Co. (C. C. A. 6th) 48 F.(2d) 73; Smokador Mfg. Co. v. Tubular Products Co. (C. C. A. 2d) 31 F. (2d) 255; Ensign Carburetor Co. v. Zenith-Detroit Corporation (C. C. A. 2d) 36 F.(2d) 684, 686. The invention filled a want in the industry and entered into immediate use when placed on the market by the defendant. Temco Co. v. Apco Co., 275 U. S. 319, 48 S. Ct. 170, 72 L. Ed. 298; Diamond Rubber Co. v. Consolidated Rubber Tire Co., supra; Pangborn Corporation v. W. W. Sly Mfg. Co. (C. C. A. 4th) 284 F. 217. And in addition to this we have the presumption arising from the imitation of the patented article by the manufacturers of the alleged infringing device. As to this, we agree with what was said by Judge Hough, speaking for the Circuit Court of Appeals of the Second Circuit in Kurtz v. Belle Hat Lining Co., 280 F. 277, 281: “The imitation of a thing patented by a defendant, who denies invention, has often been regarded, perhaps especially in this circuit, as conclusive evidence of what the defendant thinks of the patent, and persuasive of what the rest of the world ought to think.” See, also, Black & Decker Mfg. Co. v. Baltimore Truck Tire Service Corp., supra, 40 F.(2d) 910, at page 914. And on the question of infringement, we have no doubt, either as to the first device manufactured by defendant, or as to the later device which it began to manufacture about the time it abandoned its contest in the Patent Office. The first device copied not only the principle of complainant’s device, but also its form. The use of the wire fuse for the pin was so clearly the use of an obvious equivalent as not to warrant discussion. The device which" }, { "docid": "9741904", "title": "", "text": "statement in the brief for appellant that even the existence of the anticipating structure has not been shown beyond a reasonable doubt; but we do not discover any testimony which tends to sustain the statement, and, on the contrary, we find testimony which clearly and convincingly establishes the fact that the structure was installed and successfully used in the AnheuserBusch brewery in St. Touis, Mo., and that it was still there when the testimony herein was taken. We thus come to consider the time when the machine was constructed and reduced to practice. It scarcely need be said that anticipation is a complete defense; for, in view of our patent laws and of the long-settled rule of decision, if the Volz machine or its equivalent was “known or used by others in this country” before his “invention or discovery thereof,” the patent could not rightfully have been issued; such prior knowledge and use by a single person would have been sufficient to require denial of the patent. The defense of anticipation rests heavily upon the defendant. It is settled that as respects an unpatented device, claimed to be a complete anticipation of a patent in suit and depending as to its existence and use upon oral testimony, the proof must be clear, satisfactory, and beyond reasonable doubt. The Barbed Wire Patent, 143 U. S. 275, 284, 12 Sup. Ct. 443, 450, 36 L. Ed. 154; Deering v. Winona Harvester Works, 155 U. S. 286, 300, 15 Sup. Ct. 118, 39 L. Ed. 153; Adamson v. Gilliland, 242 U. S. 350, 353, 37 Sup. Ct. 169, 61 L. Ed. 356; Columbus Chain Co. v. Standard Chain Co., 148 Fed. 622, 629, 78 C. C. A. 394 (C. C. A. 6); Peelle Co. v. Rashkin, 222 Fed. 293, 297, 138 C. C. A. 19 (C. C. A. 2); H. Mueller Mfg. Co. v. Glauber, 184 Fed. 609, 618, 106 C. C. A. 613 (C. C. A. 7); Drum v. Turner, 219 Fed. 188, 196, 135 C. C. A. 74 (C. C. A. 8); Diamond Patent Co. v. L. E. Carr Co., 217" }, { "docid": "23621375", "title": "", "text": "as in Merrill v. Yeomans, 94 U. S. 568, 570, 24 L. Ed. 235, is admittedly an improvement on existing suction cleaners. The three claims involved are specific, and as drawn cover nothing more than the actual improvement made. In the device, that portion of the floor covering adjacent to the suction mouth is continuously lifted a slight distance from the floor, and while so lifted and suspended is continuously given a rapid succession of blows or raps through the entire length of the mouth of the cleaner. Thereby the floor covering is subjected to vibration and forced slightly out of sealed contact with the suction mouth adjacent to the point where with each blow or rap air is admitted, thereby permitting dirt loosened by vibration and suction to be removed. Lueke’s application was filed October 23, 1922 (and subsequently assigned to the Hoover Company). The Lucke device has not only supplanted the device of the prior art, but with an increased efficiency of over 100 per cent. Machines embodying the improved features have been purchased 'by the public in this and foreign countries to the extent of more than $100,000,000. While this fact is not conclusive of patentability, it is persuasive. Minerals Separation, Ltd., v. Hyde, 242 U. S. 261, 270, 37 S. Ct. 82, 61 L. Ed. 286; Diamond Rubber Co. v. Consolidated Tire Co., 220 U. S. 428, 31 S. Ct. 444, 55 L. Ed. 527; The Barbed Wire Patent, 143 U. S. 275, 12 S. Ct. 443, 36 L. Ed. 154; Smith v. Goodyear Dental Vulcanite Co., 93 U. S. 486, 23 L. Ed. 952; see, also, Application of Parr, 58 App. D. C. 231, 26 F.(2d) 1009. In the Patent Office the following references were relied upon: Dolph (reissue), No. 11,541, May 26, 1896; Hutchinson, No. 813,557, February 27, 1906; Blake, No. 1,-207,480', December 5, 1916; Hoover No. 1,-2,47,837, November 27, 1917; Hoover, No. 1,364,554, January 4,1921. It was not found by the tribunals of the Patent Office that any one of the references was an anticipation of the Lucke device, but that the references," }, { "docid": "6879828", "title": "", "text": "finding by the District Court on this point requites clear proof to the contrary. Smith v. Goodyear Dental Vulcanite Co., 93 U. S. 486, 495, 23 L. Ed. 952; The Barbed Wire Patent, 143 U. S. 275, 12 S. Ct. 443, 450, 36 L. Ed. 154; Thomson Spot Welder Co. v. Ford Motor Co., 265 U. S. 445, 447, 44 S. Ct. 533, 68 L. Ed. 1098; Sodemann Heat & Power Co. v. Kauffman (C. C. A.) 14 F.(2d) 393; Nash Eng. Co. v. Trane Co. (D. C.) 20 F.(2d) 439, affirmed in (C. C. A.) 25 F.(2d) 267. Chief Justice Taft, in Temco Electric Motor Co. v. Apco Mfg. Co., 275 U. S. 319, 48 S. Ct. 170, 172, 72 L. Ed. 298: “The District Judge in Ohio in the K-W Ignition Case was affected in his decision, that the Thompson patent involved invention, by the way in which the public eagerly took it and its' marked success, and' so, indeed, was the Circuit Court of Appeals of the Sixth Circuit. So are we.” The Supreme Court also said in Diamond Rubber Co. v. Con. Tire Co., 220 U. S. 428, 434, 31 S. Ct. 444, 55 L. Ed. 527, if it possessed such an amount of change from the prior ayt as to have received the approval of the Patent Office, it is entitled to the presumption of invention which attaches to a patent. The only question here, we think, is whether the invention is fully covered by the claims, because a patentee can claim no more of his invention than is covered-in the claims set forth in his application and allowed. Rev. St. § 4888 (35 USCA § 33); McClain v. Ortmayer, 141 U. S. 419, 424, 12 S. Ct. 76, 35 L. Ed. 800; Grant v. Walter, 148 U. S. 547, 554, 13 S. Ct. 699, 37 L. Ed. 552. The court below held that under claim 1 the only structural device or substantive thing described is the wiping element, but it is so obscurely described and so mingled with functional descriptions that it does not" }, { "docid": "6311518", "title": "", "text": "not unmistakable, suggestion of the improvement in question, and if the anticipation suggested comes from another art, it is of less importance.” 20 R. C. L. 1147; Topliff v. Topliff, 145 U. S. 156, 161, 12 S. Ct. 825, 36 L. Ed. 658; Carnegie Steel Co. v. Cambria Iron Co., 185 U. S. 403, 422, 22 S. Ct. 698, 46 L. Ed. 968. Following it as thus laid down, I hold that the defendants have failed to establish the invalidity of plaintiff’s patent by reason of the prior art. The defenses of prior invention and prior public use have been set up and supported by extensive testimony. Here again defendants are required to meet the burden of proving the anticipations alleged, and, since the evidence relied on consists only of oral testimony, their proof must be strongly scrutinized, and to be acceptable must be clear, satisfactory, and beyond a reasonable doubt. 20 R. C. L. 1171; The Barbed Wire Patent, 143 U. S. 275, 285, 12 S. Ct. 443, 36 L. Ed. 154; Peelle Co. v. Rashkin Co. (C. C. A. 2) 222 F. 293, 297, 138 C. C. A. 19. Without going into this evidence in detail, it is sufficient to say that I regard it as far from convincing. The ease of Parker v. Stebler et al. (C. C. A. 9) 177 F. 210, 213, 101 C. C. A. 380, is so closely analogous as to be decisive of these points. Finally, it is contended that in the proceedings before the examiners of patents and before the commissioner Hopkins repeatedly made untrue statements as to the necessity of maintaining a pressure in the tank which exceeded that at the nozzle óf a paint sprayer. I find as a fact that except when spraying at unusual heights (40 feet or more above the paint tank), it usually is necessary to maintain an atomizing pressure not less than, but in excess of, that in the tank. However, it is by no means certain that had this fact been brought to the attention of the examiners their action would have been" }, { "docid": "11465182", "title": "", "text": "might have been seen and was not. It regards a change as evidence of novelty; the acceptance and utility of change as a further evidence, even as demonstration.” Diamond Rubber Co. v. Consol. Tire Co., 220 U. S. 428, 435, 31 S. Ct. 444, 447 (55 L. Ed. 527); U. S. Industrial Chemical Co. et al. v. Theroz Co. (C. C. A. 4th) 25 F.(2d) 387. And if there be doubt as to whether the device should be treated as an invention, or as a mere mechanical improvement, this doubt should be resolved in favor of the validity of the patent, in view of the fact that it filled a recognized need in the industry, that it came immediately into extensive use, and that the Patent Office has issued a patent covering it. The Barbed Wire Patent, 143 U. S. 275, 12 S. Ct. 443, 36 L. Ed. 154; Pangborn Corp. v. W. W. Sly Mfg. Co. (C. C. A. 4th) 284 F. 217; Zip Mfg. Co. v. Pusch (C. C. A. 8th) 2 F.(2d) 828. And so far as defendants are concerned they are not in a position to question the validity of the patent. Complainant claims under the assignment made by defendant Robert P. Lindsay, and the rule is well settled that the assignor of a patent is es-topped to contest its validity against the assignee. Westinghouse Electric & Mfg. Co. v. Formica Insulation Co., 266 U. S. 342, 45 S. Ct. 117, 69 L. Ed. 316; Carper v. Crown Cork & Seal Co. of Baltimore City (C. C. A. 4th) 243 F. 200, Id. (D. C.) 229 F. 748; Leader Plow Co. v. Bridgewater Plow Co. (C. C. A. 4th) 237 F. 376. And we think that Mrs. Lindsay is bound by this estoppel as well as her husband. It appears that she and he not only sustain towards each other the relation of husband and wife, but also as partners are engaged in carrying on the business which is alleged to infringe the patent in suit. She is certainly doing business “in such association and privity”" }, { "docid": "11465181", "title": "", "text": "The combination of an air agitator tube for ice cans, a support on which the tube is bodily swingable in a plane extend ing transversely of the can, means for opposing movement of the tube away from said plane, and means to secure the support detachably to an ice can, substantially as set forth.” Although the construction of this device seems not to have involved any high order of invention, we think that the patent granted therefor is valid. The patentee undoubtedly solved a troublesome problem connected with the manufacture of ice; and, although the device appears very simple, now that former difficulties have been analyzed and a means devised for solving them, we must not lose sight of the fact that it not only involved change, but also met a real need, as is attested by its extensive use and commercial success. Knowledge after the event is always easy; but, as said by Mr. Justice McKenna in the Grant Tire Case, “the law has other tests of the invention than subtle conjectures of what might have been seen and was not. It regards a change as evidence of novelty; the acceptance and utility of change as a further evidence, even as demonstration.” Diamond Rubber Co. v. Consol. Tire Co., 220 U. S. 428, 435, 31 S. Ct. 444, 447 (55 L. Ed. 527); U. S. Industrial Chemical Co. et al. v. Theroz Co. (C. C. A. 4th) 25 F.(2d) 387. And if there be doubt as to whether the device should be treated as an invention, or as a mere mechanical improvement, this doubt should be resolved in favor of the validity of the patent, in view of the fact that it filled a recognized need in the industry, that it came immediately into extensive use, and that the Patent Office has issued a patent covering it. The Barbed Wire Patent, 143 U. S. 275, 12 S. Ct. 443, 36 L. Ed. 154; Pangborn Corp. v. W. W. Sly Mfg. Co. (C. C. A. 4th) 284 F. 217; Zip Mfg. Co. v. Pusch (C. C. A. 8th) 2 F.(2d)" }, { "docid": "6879827", "title": "", "text": "as a windshield cleaner. It was one of the preliminary steps in the improvement of this branch of the art. The single ply without side supports, becoming bent with use, did not then remain in all parts in constant contact with the glass; nor did it do the work so effectively, even when in perfect condition, as the multi-ply wiper. The improvement made by the multi-ply wiper, especially when combined with the rocking or “flopping” movement, was so great as to result in the virtual abandonment of the old single ply wiper. The multi-ply wiper, at least when combined with the rocking movement, was clearly a distinct advance in the art. The great demand for it as indicated by the sales in the two years in which it has been on the market conclusively proves this. As bearing on the novelty of the plaintiff’s invention, the manner in which the public adopted it and their competitors copied it, weighs heavily in the favor of its patentability; and favorable action by the Commissioner of-Patents and a finding by the District Court on this point requites clear proof to the contrary. Smith v. Goodyear Dental Vulcanite Co., 93 U. S. 486, 495, 23 L. Ed. 952; The Barbed Wire Patent, 143 U. S. 275, 12 S. Ct. 443, 450, 36 L. Ed. 154; Thomson Spot Welder Co. v. Ford Motor Co., 265 U. S. 445, 447, 44 S. Ct. 533, 68 L. Ed. 1098; Sodemann Heat & Power Co. v. Kauffman (C. C. A.) 14 F.(2d) 393; Nash Eng. Co. v. Trane Co. (D. C.) 20 F.(2d) 439, affirmed in (C. C. A.) 25 F.(2d) 267. Chief Justice Taft, in Temco Electric Motor Co. v. Apco Mfg. Co., 275 U. S. 319, 48 S. Ct. 170, 172, 72 L. Ed. 298: “The District Judge in Ohio in the K-W Ignition Case was affected in his decision, that the Thompson patent involved invention, by the way in which the public eagerly took it and its' marked success, and' so, indeed, was the Circuit Court of Appeals of the Sixth Circuit. So are we.”" }, { "docid": "21736565", "title": "", "text": "an inventive nature, can construct and practice the invention of the patent. O’Reilly v. Morse, 15 How. 62, 118, 119, 14 L. Ed. 601; Tyler v. Boston, 7 Wall. 327, 330, 19 L. Ed. 93; Loom Co. v. Higgins, 105 U. S. 580, 585, 26 L. Ed. 1177; The Incandescent Lamp Patent, 159 U. S. 465, 474, 475, 16 S. Ct. 75, 40 L. Ed. 221; Minerals Separation, Ltd., v. Hyde, 242 U. S. 261, 271, 37 S. Ct. 82, 61 L. Ed. 286; Beidler v. U. S., 253 U.. S. 447, 453, 40 S. Ct. 564, 64 L. Ed. 1006; Eibel Co. v. Paper Co., 261 U. S. 45, 66, 43 S. Ct. 322, 67 L. Ed. 523; American Lava Co. v. Steward, 155 F. 731, 736 (C. C. A. 6), affirmed 215 U. S. 161, 30 S. Ct. 46, 54 L. Ed. 139; and Featheredge Rubber Co. v. Miller Rubber Co., 259 F. 565, 570 (C. C. A. 6), are a few of the many authorities establishing the rule of decision in such eases. In some of the above authorities the claims were held void for vagueness or insufficiency of the description; in others the description was held adequate. The difficulty is not with the rule, but with its application, and in applying it due 1’egard must be given to the collateral principles that the claims measure the invention (Motion Picture Patents Co. v. Universal Film Mfg. Co., 243 U. S. 502, 510, 37 S. Ct. 416, 61 L. Ed. 871, L. R. A. 1917E, 1187, Ann. Cas. 1918A, 959; Paper Bag Patent Case, 210 U. S. 405, 419, 28 S. Ct. 748, 52 L. Ed. 1122; McClain v. Ortmayer, 141 U. S. 419, 424, 12 S. Ct. 76, 35 L. Ed. 800), that such claims should be liberally construed so as to uphold and not destroy the right of the inventor, especially in the ease of a generic invention (Temco Co. v. Apco Co., 275 U. S. 319, 48 S. Ct. 170, 72 L. Ed. 298), and that a claim is not invalidated by the omission of" }, { "docid": "2969628", "title": "", "text": "public eagerly took it and its marked success, and that it was likewise affected. We do not think that ease establishes the doctrine that invention is necessarily shown by commercial success. The most that can be claimed is that commercial success may be resorted to as evidence of invention where other facts leave the question in'doubt. In Zip Mfg. Co. v. Pusch, 2 F.(2d) 828, 831, this court points out that where the question of whether a change is an invention or merely an improvement is close, legal presumptions are available. “One of these is that the granting of a patent carries with it the presumption of novelty. * * * Another is that one attacking the validity of a patent is required to make good that attack with reasonable clearness.” Acme Foundry & Mch. Co. v. Oil Well Improvements Co. (C. C. A.) 2 F.(2d) 530; Detroit Motor Appliance Co. v. Burke (D. C.) 4 F.(2d) 118; Galvin Electric Mfg. Co. v. Emerson Electric Mfg. Co. (C. C. A.) 19 F.(2d) 885; Scovill Mfg. Co. v. Satler (D. C.) 21 F.(2d) 630; Sanitary Refrigerator Co. v. Winters et al., 280 U. S. 30, 50 S. Ct. 9, 74 L. Ed. 147. Much is claimed for the Caesar patent by reason of its commercial success. This court and others have pointed to the danger in accepting commercial success as a safe criterion of patentable novelty. In Apple v. American Shoe Machinery & Tool Co. (C. C. A.) 232 F. 603, where a patent for an improved leather skiving machine was at issue, the court in holding there was no patentable novelty pointed out that the making of many sales was an unsafe criterion of patentable invention. , In Western Willite Co. v. Trinidad Asphalt Co., 16 F.(2d) 446, 450, this court said: “The extent to which a patented device has gone into use is not always a safe criterion, even of its actual utility.” In McClain v. Ortmayer, 141 U. S. 419, 429, 12 S. Ct. 76, 79, 35 L. Ed. 800, the court said: “While this court has held" }, { "docid": "11907100", "title": "", "text": "denied 268 U. S. 704, 45 S. Ct. 639, 69 L. Ed. 1167; 1 Walker on Patents (6th Ed.) § 116. When one attacks a patent, he must make good his attack with reasonable clearness. The burden of proof is upon him and every reasonable doubt will he resolved against him. Coffin v. Ogden, 18 Wall. 120, 124, 21 L. Ed. 821; Smith v. Goodyear Dental Vulcanite Co., 93 U. S. 486, 498, 23 L. Ed. 952; Cantrell v. Wallick, 117 U. S. 689, 695, 6 S. Ct. 970, 29 L. Ed. 1017; Morgan v. Daniels, 153 U. S. 120, 123, 14 S. Ct. 772, 38 L. Ed. 657; Buchanan v. Wyeth Hdwe. & Mfg. Co. (C. C. A. 8) 47 F.(2d) 704, 706; Zip Mfg. Co. v. Pusch (C. C. A. 8) 2 F.(2d) 828, 831; Johns-Manville Co. v. R. V. Aycock Co. (D C.) 45 F.(2d) 817, 819; General Motor Corp. v. Leer Auto Supply Co. (C. C. A. 2) 60 F.(2d) 902, 904; C. N. Weaver, Inc., v. American Chain Co. (C. C. A. 9) 9 F.(2d) 372, 380, certiorari denied 273 U. S. 699, 47 S. Ct. 94, 71 L. Ed. 847. While commercial success cannot convert mechanical skill into invention, it may, in doubtful eases, be some evidence of invention. Tropic-Aire, Inc., v. Sears, Roebuck & Co. (C. C. A. 8) 44 F.(2d) 580, 591, 592, and numerous cases cited, certiorari denied 282 U. S. 904, 51 S. Ct. 217, 75 L. Ed. 796; Buchanan v. Wyeth Hdwe. & Mfg. Co. (C. C. A. 8) 47 F.(2d) 704, 706; Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U. S. 45, 56, 43 S. Ct. 322, 67 L. Ed. 523; John E. Thropp’s Sons’ Co. v. Seiberling, 264 U. S, 320, 330, 44 S. Ct. 346, 68 L. Ed. 708; Trico Products Corp. v. Apco-Mossberg Corp. (C. C. A. 1) 45 F.(2d) 594, 598; 1 Walker on Patents (6th Ed.) § 120. Simplicity alone cannot be relied upon as indicating that an improvement is the re- suit of mechanical shill rather than inventive genius." }, { "docid": "23553706", "title": "", "text": "Can Opener Co. v. Owen Dyneto Co. (C. C. A. 2d) 16 F.(2d) 353. But if there were doubt, which we do not think there is, as to the patentability' of Troll’s scale, there can be no question that such doubt should be resolved in favor of the validity of the patent. To the presumption of validity attaching to the grant of the patent by the Patent Office, there is the additional presumption arising from the fact that the invention filled a want arising from a new 'situation, that it entered into immediate use, and that it met with pronounced commercial success. Temco Electric Motor Co. v. Apco Mfg. Co., 275 U. S. 319, 48 S. Ct. 170, 72 L. Ed. 298; Diamond Rubber Co. v. Consolidated Rubber Tire Co., 220 U. S. 428, 31 S. Ct. 444, 55 L. Ed. 527; Pangborn Corporation v. W. W. Sly Mfg. Co. (C. C. A. 4th) 284 E. 217. And in addition to this is the presumption arising from the imitation of the patented article by the manufacturer of the alleged infringing device. As to this, we agree with what was said by Judge Hough, speaking for the Circuit Court of Appeals of the Second Circuit in Kurtz v. Belle Hat Lining Co., 280 F. 277, 281: “The imitation of a thing patented by a defendant, who denies invention, has often been regarded, perhaps especially in this circuit, as conclusive evidence of what the defendant thinks of the patent, and persuasive of what the rest of the world ought to think.” Coming specifically to the claims in question, we think that both claims 2 and 5 are valid, and that, as the invention was a meritorious one and “substantially advanced the art,” the patent is entitled to liberal treatment and its claims are to be liberally construed. Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U. S. 45, 63, 43 S. Ct. 322, 67 L. Ed. 523. It is said that the fifth claim is too broad and is anticipated by the Witherell patent. We do not think so. The" }, { "docid": "2901279", "title": "", "text": "suggests any co-operation of the elements upon the principle adopted by the patent in suit, or upon any principle adapted to serve the same purpose, the use of the old elements may limit, but cannot defeat, the patent. * * * The finding in the old devices, one portion here, one in another, and so on, should not defeat a patent for the combination; which is only truly anticipated by a prior device having identically the same elements, or their mechanical equivalents, cooperating to produce the same results.” Imperial Bottle Cap & Machine Co. v. Crown Cork & Seal Co., 139 F. 312, 319, 320. The same general principle which this court was, quite recently, called upon to announce in a case involving a process patent, is applicable here. This court said: “A presumption of invention is not overcome by the fact that an expert may be able to build up the patented process by selecting parts' taken from the prior art. That wisdom which comes after the fact will not be permitted to defeat the claim of him who first fully accomplishes the desired end, be it ever so simple, for in the law of patents it is the last step that wins. Diamond Rubber Co. v. Consolidated Rubber Tire Co., 220 U. S. 428, 31 S. Ct. 444, 55 L. Ed. 527; Carnegie Steel Co. v. Cambria Iron Co., 185 U. S. 403, 22 S. Ct. 698, 46 L. Ed. 968; Webster Loom Co. v. Higgins, 105 U. S. 580, 26 L. Ed. 1177.” Vortex Mfg. Co. v. Ply-Rite Contracting Co. (D. C.) 33 E.(2d) 302, 308. Were there any doubt as to the patentability of the device here in issue, the court would be compelled to resolve such doubt in favor of the plaintiff, because of the commercial success of the device, as indicated by testimony which is not contra dieted. Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U. S. 45, 43 S. Ct. 322, 67 L. Ed. 523; Trane Co. v. Nash Engineering Co. (C. C. A.) 25 F.(2d) 267; Thropp’s Sons Co." }, { "docid": "5940352", "title": "", "text": "but an application of the law of gravity to make fluid stock move more rapidly. But the court pointed out (Taft, C. J.) that speed had long been the quest of paper manufacturers, and that Eibel’s scheme for getting it had been widely adopted. The conclusion in favor of Eibel rests mainly (if not entirely) on the success of his simple method of adjusting the old machine. He provided no new combination, as Jennings did. The Eibel Case certainly admonishes this court to give great weight to the practical results from a claimed invention; to look beyond the paper expression to the state of the art, before and after an alleged invention which is tested in actual practice. Dubilier Condenser Corp. v. N. Y. Coil Co. (C. C. A.) 20 F.(2d) 723, 725; Minerals Separation v. Hyde, 242 U. S. 261, 270, 37 S. Ct. 82, 61 L. Ed. 286. An invention is a real thing; a patent is the description of it in words and/or drawings. McClain v. Ortmayer, 141 U. S. 419, 12 S. Ct. 76, 35 L. Ed. 800. The description must be reasonably adequate, in order to warn the public' and competitors of the nature and extent of the monopoly claimed. But the essence of the matter is a new and useful reality, frequently best tested and demonstrated by actual experience. Smith v. Goodyear Co., 93 U. S. 486, 495, 23 L. Ed. 952; Marconi Co. v. DeForest Co. (C. C. A.) 243 F. 560, 564; Kurtz v. Belle Co. (C. C. A.) 280 F. 277. Of course, commercial success alone is no safe guide. Boston, etc., Co. v. Automatic (C. C. A.) 276 F. 910. But when, as in this ease, success is proved to have flowed from the claim in suit, doubts arising from the papers alone disappear. Hubbell Co. v. Gen. Electric, supra. We have no doubt that the court beT low was right in holding that Jennings made an invention, sufficiently described in claim 2, supra. The defendant urges that, even if Jennings did invent, he lost his rights by prior sale" }, { "docid": "11907101", "title": "", "text": "C. A. 9) 9 F.(2d) 372, 380, certiorari denied 273 U. S. 699, 47 S. Ct. 94, 71 L. Ed. 847. While commercial success cannot convert mechanical skill into invention, it may, in doubtful eases, be some evidence of invention. Tropic-Aire, Inc., v. Sears, Roebuck & Co. (C. C. A. 8) 44 F.(2d) 580, 591, 592, and numerous cases cited, certiorari denied 282 U. S. 904, 51 S. Ct. 217, 75 L. Ed. 796; Buchanan v. Wyeth Hdwe. & Mfg. Co. (C. C. A. 8) 47 F.(2d) 704, 706; Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U. S. 45, 56, 43 S. Ct. 322, 67 L. Ed. 523; John E. Thropp’s Sons’ Co. v. Seiberling, 264 U. S, 320, 330, 44 S. Ct. 346, 68 L. Ed. 708; Trico Products Corp. v. Apco-Mossberg Corp. (C. C. A. 1) 45 F.(2d) 594, 598; 1 Walker on Patents (6th Ed.) § 120. Simplicity alone cannot be relied upon as indicating that an improvement is the re- suit of mechanical shill rather than inventive genius. Diamond Rubber Co. of N. Y. v. Consol. Rubber Tire Co., 220 U. S. 428, 434, 31 S. Ct. 444, 55 L. Ed. 527; New York Scaffolding Co. v. Whitney (C. C. A. 8) 224 F. 452, 457; Trane Co. v. Nash Engineering Co. (C. C. A. 1) 25 F.(2d) 267; Jensen-Salsbery Laboratories v. Salt Lake Stamp Co. (C. C. A. 8) 28 F.(2d) 99, 101. The advantages of a stable cream depilatory were obvious a long time prior to Donner. There was a demand for sueh a product. No one completely solved the problem before Donner. The evidence shows that the manufacturer of “Neet,” whieh had been selling a depilatory for many years, had been constantly endeavoring to improve the product and to produce the depilatory in the form of a cream, and had, about tbe time that Donner obtained his patent, employed a consulting chemist for that purpose.' This chemist testified upon the trial that he had discovered that by grinding the lime hydrate, which was used for the preparation of “Neet,” a" }, { "docid": "15791827", "title": "", "text": "by Godbold and Fletcher. The new cutters have been well patronized and they substantially increased the sales of plaintiff. It is true the patented improvement was. simple in 'character, but the simplicity ' of a device does not show the invalidity of a ■patent, and its popularity has an influential bearing on its novelty and usefulness. Diamond Rubber Co. v. Consol. Tire Co., 220 U. S. 428, 31 S. Ct. 444, 55 L. Ed. 527; Eibel Co. v. Paper Co., 261 U. S. 45, 43 S. Ct. 322, 67 L. Ed. 523; Jensen-Salsbery Laboratories v. Salt Lake Stamp Co. (C. C. A.) 28 F.(2d) 99. And where an existing patent'is deficient and the prolonged efforts of experts have failed to remedy it, the discovery of the needed improvement, added to its commercial success and the presumption of validity, justifies the conclusion that it is due to invention and not mechanical skill. Pelton Wheel Co. v. Doble (C. C. A.) 190 F. 760; Wirebounds Patents Co. v. Saranac Automatic Machine Corp. (C. C. A.) 37 F. (2d) 830; Frick Co. v. Lindsay (C. C. A.) 27 F. (2d) 59. We are convinced that patentable invention is disclosed by the patent in suit. This view is not opposed to the opinion of this court in Linville v. Milberger, 34 F. (2d) 386. Principles based on the authorities, and there approved and applied, aw that what would be obvious to a mechar’ acquainted with a business or required onl.. the ingenuity or skill of a mechanic is not invention, that if all the elements in one patent are found in different patents it is relevant to consider them as a test of invention, that a mere carrying forward or more extended application of the original idea involving, a change only in form, proportions, or degree where the same work is done in the same way and by substantially the same means, although with better results, is not such invention as will sustain a patent. Nor is the formula applicable as expressed in Magic City Kennel Club v. Smith, 38 F.(2d) 170, 173, also" }, { "docid": "21775383", "title": "", "text": "court.” In referring to the Eibel Case, in Trane Co. v. Nash Engineering Co., 25 F.(2d) 267, 269, the Circuit Court of Appeals of the First Circuit says: “The Eibel Case certainly admonishes this court to give great weight to the practical results from a claimed invention; to look beyond the paper expression to the state of the art, before and after an alleged invention which is tested in actual practice. Dubilier Condenser Corp. v. N. Y. Coil Co. (C. C. A.) 20 F.(2d) 723, 725; Minerals Separation v. Hyde, 242 U. S. 261, 270, 37 S. Ct. 82, 61 L. Ed. 286. An invention is a real thing; a patent is the description of it in words and/or drawings. McClain v. Ortmayer, 141 U. S. 419, 12 S. Ct. 76, 35 L. Ed. 800. The description must be reasonably adequate, in order to warn the public and competitors of the nature and extent of the monopoly claimed. But the essence of the matter is a new and useful reality, frequently best tested and demonstrated by actual experience.” See, also, Brown Bag-Filling Mach. Co. v. Drohen (C. C.) 140 F. 97; The Barbed Wire Patent, 143 U. S. 275, 12 S. Ct. 443, 36 L. Ed. 154; Hall Signal Co. v. General Ry. Signal Co. (C. C.) 168 F. 62; Force v. Sawyer-Boss Mfg. Co. (C. C.) 111 F. 902; Schenck v. Singer Mfg. Co. (C. C. A.) 77 F. 841; Loom Co. v. Higgins, 105 U. S. 580, 26 L. Ed. 1177. Ear tags were old. The desirability of a tag such as Hennefer produced must have been apparent for many years, and yet lie was the first to make it. The same argument whieh is made to defeat the patenta-bility of his device could be made with like force against the prior art patents cited by the. defendant. The ear tag of Baker provided a simple and somewhat obvious way to secure the result whieh he desired. Callison’s ear tag was simple, as was the Davis poultry band, and the Possner paper clip. The question as to whether" }, { "docid": "15683738", "title": "", "text": "produce a new and beneficial result, never attained before, it is evidence of invention.” See, also, Seymour v. Osborne, 11 Wall. (78 U. S.) 516, 542, 20 L. Ed. 33; Gould v. Rees, 15 Wall. (82 U. S.) 187, 189, 21 L. Ed. 39; Hailes v. Van Wormer, 20 Wall. (87 U. S.) 353, 368, 22 L. Ed. 241; Pickering v. McCullough, 104 U. S. 310, 317, 26 L. Ed. 749; Cantrell v. Wallick, 117 U. S. 689, 694, 6 S. Ct. 970, 29 L. Ed. 1017; The Barbed Wire Patent, 143 U. S. 275, 283, 284, 12 S. Ct. 443, 450, 36 L. Ed. 154; Leeds & Catlin Co. v. Victor Talking Mach. Co., 213 U. S. 301, 318, 29 S. Ct. 495, 53 L. Ed. 805; Diamond Rubber Co. v. Consol. Rubber Tire Co., 220 U. S. 428, 442, 443, 31 S. Ct. 444, 55 L. Ed. 527; Bliss v. Spangler (C. C. A. 9) 217 F. 394, 397; Bankers’ Utilities Co. v. Pacific Nat. Bank, supra, at page 18 of 18 F.(2d). But there are important qualifications to this rule. First, it is not an invariable one. Webster Loom Co. v. Higgins, supra, and Knapp v. Morss, 150 U. S. 221, 227, 14 S. Ct. 81, 37 L. Ed. 1059. Again, such a new combination of old elements is not irrebuttable proof of invention, but merely, as we have seen, “evidence” of it. Webster Loom Co. v. Higgins, supra; Knapp v. Morss, supra; National Tube Co. v. Aiken (C. C. A. 6) 163 F. 254, 261. In the third place, in the language ,of Mr. Justice Strong, in Hailes v. Van Wormer, supra, “the results must be a product of the combination, and not a mere aggregate of several results, each the complete product of one of the combined elements.” In other words, as was stated by the late Judge Gilbert of this court, in Pelton Water Wheel Co. v. Doble, 190 F. 760, 766: “In order to be patentable, a combination of elements must in their co-relation produce a different force, or effect, or result, from" } ]

[ { "docid": "22152662", "title": "", "text": "F.2d 1380, 1387 (5th Cir.1987) (refusing to entertain a plaintiff’s challenge to a magistrate’s denial of his motion to amend his complaint because “no appeal therefrom to the district court was ever taken or attempted and the district court did not in any way review or confirm th[e] order”). III. THE PROPRIETY OF SUMMARY JUDGMENT We divide our examination of the summary judgment entered below into two seg ments. We begin by outlining the Rule 56 standard and then proceed to the underlying Title VII claim. A. The Summary Judgment Standard. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Where, as in this case, the defendant has invoked Rule 56 and asserted a lack of supporting evidence, the plaintiff must establish the existence of a triable issue which is both genuine and material to his claim. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). “In this context, ‘genuine’ means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party [and] ‘material’ means that the fact is one that might affect the outcome of the suit under the governing law.” United States v. One Parcel of Real Property, Etc. (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir.1992) (citations and internal quotation marks omitted). On issues where the nonmovant bears the ultimate burden of proof at trial, he may not defeat a motion for summary judgment by relying upon evidence that is “merely colorable” or “not significantly probative.” Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511. To the contrary, the nonmovant must “present definite, competent evidence to rebut the motion.” Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992)." } ]

[ { "docid": "17435965", "title": "", "text": "court. B. Standard for Summary Judgment Rule 56(c) of the Federal Rules of Civil Procedure sets forth the standard for ruling on summary judgment motions: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The critical inquiry is whether a genuine issue of material fact exists. A genuine issue is one “supported by such evidence that a reasonable jury, drawing favorable inferences, could resolve it in favor of the nonmoving party.” Hershey v. Donaldson, Lufkin & Jenrette Securities Corp., 317 F.3d 16, 19 (1st Cir.2003)(internal quotation marks omitted). Furthermore, a material fact is “one that might ‘affect the outcome of the suit under the governing law.’ ” United States v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir.1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). On a motion for summary judgment, the moving party bears the initial burden of showing that there are no genuine issues of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This burden may be met by showing the court that a lack of evidence exists to support the nonmoving party’s case. Rochester Ford Sales, Inc. v. Ford Motor Co., 287 F.3d 32, 39 (1st Cir.2002). Upon discharging that burden, the nonmoving party must demonstrate that the trier of fact could reasonably find in the nonmoving party’s favor with respect to each issue on which that party has the burden of proof at trial. Id. In the end, the court must view all evidence and related inferences in the light most favorable to the nonmoving party. Id. “[W]hen the facts support plausible but conflicting inferences on a pivotal issue in the case, the judge may not choose between those inferences at the summary judgment stage.” Coyne v. Taber" }, { "docid": "6420053", "title": "", "text": "on the opposing party to point to specific facts demonstrating that there is, indeed, a trialworthy issue. National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995). A “genuine” issue is one “that a reasonable jury could resolve ... in favor of the nonmoving party.” McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995). Accord United States v. One Parcel of Real Property, Great Harbor Neck, New Shoreham, R.I., 960 F.2d 200, 204 (1st Cir.1992). Not every genuine factual conflict, however, necessitates a trial. “ ‘It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the nonmov-ant that the materiality hurdle is cleared.’ ” Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 448 (1st Cir. 1997) (quoting Martinez v. Colon, 54 F.3d 980, 983-84 (1st Cir.1995)). At bottom, matters of law are for the court to decide at summary judgment. Blackie v. Maine, 75 F.3d 716, 721 (1st Cir.1996). II. Factual Background The following background is taken directly from the statement of material facts presented by Plaintiffs (Docket No. 74, hereinafter “Pis.’ Facts”), the parties against whom summary judgment is sought. See Goldman v. First Nat’l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir. 1993) (indicating that, at summary judg ment, the record is viewed in the light most favorable to nonmoving party). A. Agri-Mark and its Evaporator System Agri-Mark is an incorporated consortium of dairy farmers which operates a powdered milk production plant in West Springfield, Massachusetts. The products produced by Agri-Mark at the plant include condensed and powdered non-fat dry milk. Agri-Mark processes thousands of gallons of milk per day. Agri-Mark utilizes an evaporator system to convert skim milk into dried milk by removing water from skim milk feed stock. The evaporation process is initiated by removing the cream from the whole milk. Next, the skim milk is pumped into the evaporation system where it falls by gravity in a thin film over heat exchanger surfaces. The heat exchangers remove the moisture from the skim milk product by transferring" }, { "docid": "22129884", "title": "", "text": "disagreement over the meaning of the non-standard workweek article forestalls the entry of summary judgment. Their labors are both unproductive and unpersuasive. Of course, summary judgment is appropriate only if the record reveals no genuine issue of material fact and the movant demonstrates an entitlement to judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995) (collecting cases); National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.), cert. denied, — U.S. -, 115 S.Ct. 2247, 132 L.Ed.2d 255 (1995). Under this standard, “a party seeking summary judgment [must] make a preliminary showing that no genuine issue of material fact exists. Once the movant has made this showing, the nonmovant must contradict the showing by pointing to specific facts demonstrating that there is, indeed, a trialworthy issue.” National Amusements, 43 F.3d at 735. Nonetheless, genuineness and materiality are not infinitely elastic euphemisms that may be stretched to fit whatever pererrations catch a litigant’s fancy. In the lexicon of Rule 56, “genuine” connotes that the evidence on the point is such that a reasonable jury, drawing favorable inferences, could resolve the fact in the manner urged by the nonmoving party, and “material” connotes that a contested fact has the potential to alter the outcome of the suit under the governing law if the controversy over it is resolved satisfactorily to the nonmovant. See United States v. One Parcel of Real Property (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir. 1992). The happenstance that both parties move simultaneously for brevis disposition does not, in and of itself, relax the taut line of inquiry that Rule 56 imposes. “Barring special circumstances, the nisi prius court must consider each motion separately, drawing inferences against each movant in turn.” EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 603 n. 8 (1st Cir.), cert. denied, — U.S. -, 116 S.Ct. 65, 133 L.Ed.2d 27 (1995). Matters of law, however, are for the court to resolve. See Stauble v. Warrob, Inc., 977 F.2d 690, 693 (1st" }, { "docid": "22924562", "title": "", "text": "from the employee roster and, consequently, he could no longer enter the workplace. Rivera acknowledges that a co-worker verified the information transmitted by the supervisor. Rivera was also told that he would be receiving a final check to liquidate his unused vacation time. He received, and cashed, the vacation-pay check no later than November of 1988. The following year was a slightly more auspicious one for appellant. In April, the last remaining criminal charges against him were dismissed. In August, Agosto resigned and was succeeded by defendant-appellee Ramon Garcia Santiago (Garcia). On August 30, 1989, Rivera, having done nothing to ameliorate his situation since initially requesting a hearing, wrote to his supervisor, soliciting her intervention. That letter went unanswered. On April 9,1990, Rivera sued Agosto and Santiago in the federal district court. Invoking section 1983, he charged that the defendants had deprived him of property (his job) without due process of law and that Agosto, in doing so, had also stigmatized him. Rivera’s complaint sought a many-splendored array of relief, including back pay, money damages, and reinstatement to his previous position. In due course, the appellees moved for brevis disposition, contending that Rivera’s action was time-barred. The district court agreed. 770 F.Supp. 770. Rivera appeals from the ensuing judgment. II. Applicable Legal Principles A. Summary judgment is appropriate when the record reflects “no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “In this context, ‘genuine’ means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party.” United States v. One Parcel of Beal Property, Etc. (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir.1992). In the same context, “material” means that the fact is one susceptible of altering the outcome of the litigation. Id. “On issues where the nonmov-ant bears the burden of proof, he must present definite, competent evidence to rebut the motion.” Id.; see also Garside v. Oseo Drug, Inc., 895 F.2d 46, 49 (1st Cir.1990) (“a mere" }, { "docid": "6228542", "title": "", "text": "can-celled.” Id. at 11. Defendants maintain that Peña’s contract was not terminated because of political discrimination, and that, as a contract employee, he had no legitimate expectation of continued employment with GDB. II. We review a grant of summary judgment de novo, drawing all reasonable inferences in favor of the non-moving party. Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 42 (1st Cir.2002). Summary judgment is properly granted if the movant can demonstrate 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). In the summary judgment context, we have construed “genuine” to mean “that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party” United States v. One Parcel of Real Prop., 960 F.2d 200, 204 (1st Cir.1992). Similarly, a fact is “material” if it is “one that might affect the outcome of the suit under the governing law.” Morris v. Gov’t Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir.1994) (internal citation and quotation marks omitted). A. The first issue before us is whether, as plaintiffs contend, the district court applied the wrong pleading standard when it granted defendants’ motion for summary-judgment. This claim is meritless. Plaintiffs rely on our opinion in Gorski v. New Hampshire Dep’t of Corrections, 290 F.3d 466, 473 (1st Cir.2002), to remind us that “complaints alleging employment discrimination need only satisfy ‘the simple requirements of Rule 8(a).’ ” Id. (quoting Swierkiewicz v. Sorema N.A, 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). Although they have correctly stated the applicable law, plaintiffs have completely misapplied the principle to the facts of their case. Swierkiewicz specifically invalidated the requirement, formerly recognized in some circuits including this one, that plaintiffs plead facts establishing a prima facie case in order to survive a motion to dismiss. Swierkiewicz, 534 U.S. at 511, 122 S.Ct. 992. Instead, Swierkiewicz requires only a short and plain statement to “give the defendant fair notice of what the" }, { "docid": "3020441", "title": "", "text": "plaintiffs and the FDIC. See Fed. R.Civ.P. 54(b). The plaintiffs then moved for relief from judgment, asserting for the first time that sums used in a previous Maine proceeding, though incorrectly calculated, were entitled to full faith and credit. The district court denied the motion. This appeal followed. II. APPLICABLE LEGAL PRINCIPLES We set out in somewhat abbreviated form the two sets of legal principles that together electrify the beacon by which we must steer. A. The Summary Judgment Standard. Summary judgment is appropriate when the record reflects.“no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). For purposes of this determination, the term “genuine” means that “the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party....” United States v. One Parcel of Real Property, Etc. (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir.1992). Similarly, the term “material” means that the fact has the potential to “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, 2510, 91 L.Ed.2d 202 (1986)). An order granting summary judgment engenders de novo review. See Pagano v. Frank, 983 F.2d 343, 347 (1st Cir.1993); Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 352 (1st Cir.1992). In performing this chore, we scrutinize the summary judgment record in the light most congenial to the losing party, and we indulge all reasonable inferences in that party’s favor. See Pagano, 983 F.2d at 347. B. The D’Oench, Duhme Doctrine. The FDIC assumes two separate roles when a bank collapses. As receiver, the FDIC manages the failed bank’s assets; in its corporate capacity, the FDIC insures the failed bank’s deposits. See Timberland Design, Inc. v. First Serv. Bank for Sav., 932 F.2d 46, 48 (1st Cir.1991) (per curiam). The FDIC’s options when the death knell sounds include liquidating the failed bank or, preferably, arranging the purchase and assumption of some or all of its assets and liabilities by" }, { "docid": "5759346", "title": "", "text": "severance benefit package constitutes an ERISA plan, the court must then determine whether Macom-ber’s state law claims are preempted by ERISA. For the reasons set forth below, the court concludes that the severance benefit package offered by Digital to its employees and allegedly promised to Macomber does constitute an employee welfare benefit plan within the meaning of ERISA. And, although Macom-ber’s claims are founded upon conduct alleged to have occurred prior to the adoption of the plan, those claims are nonetheless preempted by ERISA. I. Standard of Review Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). In ruling upon a party’s motion for summary judgment, the court must, “view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor.” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). The moving party has the burden of initially demonstrating the absence of a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986), motion denied, 480 U.S. 903, 107 S.Ct. 1343, 94 L.Ed.2d 515 (1987). If the moving party carries its burden, the non-moving party must set forth specific facts showing that there remains a genuine issue of material fact for trial, demonstrating “some factual disagreement sufficient to deflect brevis disposition.” Mesnick v. General Electric Co., 950 F.2d 816, 822 (1st Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992). “In this context, ‘genuine’ means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party [and] ‘material’ means that the fact is one ‘that might affect the outcome of the suit under the governing law.’” United States v. One Parcel of Real Property with Bldgs., 960 F.2d 200, 204 (1st" }, { "docid": "6420052", "title": "", "text": "MEMORANDUM AND ORDER WITH REGARD TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Docket No. 65) and DEFENDANTS MOTION TO EXCLUDE EXPERT TESTIMONY AND FOR SUMMARY JUDGMENT (Docket No. 69) NEIMAN, United States Magistrate Judge. This action arises out of two failures of an industrial milk evaporator owned and operated by Agri-Mark, Inc. (“Agri-Mark”). Agri-Mark and its subrogee, The Travelers Indemnity Company (“Travelers”) (collectively “Plaintiffs”), allege that modifications to the system made by defendant Niro, Inc. (“Niro”) caused the failures. The parties have consented to this court’s jurisdiction, see 28 U.S.C. § 636(c), and, pursuant to Fed.R.Civ.P. 56, Niro has filed two separate motions for summary judgment. For the reasons indicated below, the court will deny both motions. I. Summary Judgment Standard A court may grant summary judgment pursuant to FED. R. CIV. P. 56(c) if “there is no genuine issue as to any material fact” and “the moving party is entitled to a judgment as a matter of law.” Once the moving party has asserted that no genuine issue of material fact exists, the burden is on the opposing party to point to specific facts demonstrating that there is, indeed, a trialworthy issue. National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995). A “genuine” issue is one “that a reasonable jury could resolve ... in favor of the nonmoving party.” McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995). Accord United States v. One Parcel of Real Property, Great Harbor Neck, New Shoreham, R.I., 960 F.2d 200, 204 (1st Cir.1992). Not every genuine factual conflict, however, necessitates a trial. “ ‘It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the nonmov-ant that the materiality hurdle is cleared.’ ” Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 448 (1st Cir. 1997) (quoting Martinez v. Colon, 54 F.3d 980, 983-84 (1st Cir.1995)). At bottom, matters of law are for the court to decide at summary judgment. Blackie v. Maine, 75 F.3d 716, 721 (1st Cir.1996). II. Factual Background The following background is taken" }, { "docid": "22083947", "title": "", "text": "sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side. See Liberty Lobby, 477 U.S. at 250, 106 S.Ct. at 2511; Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). Trialworthiness necessitates “more than simply show[ing] that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356. As we have stated, “[t]he evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions, of the truth which a fact-finder must resolve_” Mack, 871 F.2d at 181. Trialworthiness requires not only a “genuine” issue but also an issue that involves a “material” fact. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. In this context, the term “material” means that a fact has the capacity to sway the outcome of the litigation under the applicable law. See id.; see also United States v. One Parcel of Real Property, Etc. (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir.1992). If the facts on which the nonmovant relies are not material, or if its evidence “is not significantly probative,” Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted), brevis disposition becomes appropriate. An order granting summary judgment engenders plenary review. See Pagano v. Frank, 983 F.2d 343, 347 (1st Cir.1993). In conducting such review, we examine the summary judgment record in the light most friendly to the summary judgment loser, and we indulge all reasonable inferences in that party’s favor. See id. Withal, we need not credit purely eonclusory allegations, indulge in rank speculation, or draw improbable inferences. See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). III. THE FIRST AMENDMENT CLAIM The heart of appellant’s case is its multifaceted claim that the municipal by-law violates the First Amendment. We turn directly to that claim (relegating appellant’s related overbreadth challenge to Part rV(C), infra). A. Putting First Things First. In the context of" }, { "docid": "7403571", "title": "", "text": "F.2d at 48, this court, like the district court, “must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor.” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). Despite this generous perspective, summary judgment is not a hollow threat. Creating a genuine issue of material fact requires hard proof rather than spongy rhetoric. See Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.1991) (explaining that “[gjenuine issues of material fact are not the stuff of an opposing party’s dreams”). Thus, though the party opposing a summary judgment motion enjoys a favorable presumption for the evidence he adduces, that evidence must be such that .a reasonable factfinder could resolve the point in favor of the nonmoving party. United States v. One Parcel of Real Prop. (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir.1992). Of course, not every documented factual dispute will avert the swing of the summary judgment axe. To achieve that end, the dispute must relate to a material fact. See id. In this context, “material” means that a fact has the potential of affecting the outcome of the case. Id. And as to issues on which the nonmoving party bears the burden of proof, “he must present definite, competent evidence to rebut the motion.” Id. Kearney v. Town of Wareham, 316 F.3d 18, 21-22 (1st Cir.2002). Cross-motions for summary judgnaent present peculiar problems. The court must consider each motion on the record provided and must take care not to confuse its limited role in passing on such a motion (that is, to determine whether the moving party is entitled to judgment as a matter of law on the undisputed material facts) with the role it would play were the parties to submit their case for decision on a stipulated record. As explained by Judge (now Justice) Breyer: The case seems to be one that the parties wished a magistrate or judge (not a jury) to decide on the basis of a written record. They did not stipulate, however, that" }, { "docid": "7403570", "title": "", "text": "that § 523(a)(5) disputes are not generally good candidates for summary judgment, as they often feature disputes about historical intent. Nevertheless, the order before us was entered on summary judgment, and our decision today turns closely on summary judgment practice and process. The First Circuit has illuminated summary judgment’s role and the character of review appellate courts are to provide for summary judgment decisions: The role of summary judgment is “to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990) (iquoting Fed.R.Civ.P. 56 advisory committee’s note). Thus, summary judgment is appropriate as long as “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Because appellate review of orders granting or denying summary judgment is plenary, Garside, 895 F.2d at 48, this court, like the district court, “must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor.” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). Despite this generous perspective, summary judgment is not a hollow threat. Creating a genuine issue of material fact requires hard proof rather than spongy rhetoric. See Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.1991) (explaining that “[gjenuine issues of material fact are not the stuff of an opposing party’s dreams”). Thus, though the party opposing a summary judgment motion enjoys a favorable presumption for the evidence he adduces, that evidence must be such that .a reasonable factfinder could resolve the point in favor of the nonmoving party. United States v. One Parcel of Real Prop. (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir.1992). Of course, not every documented factual dispute will avert the swing of the summary judgment axe. To achieve that end, the dispute must" }, { "docid": "22924563", "title": "", "text": "and reinstatement to his previous position. In due course, the appellees moved for brevis disposition, contending that Rivera’s action was time-barred. The district court agreed. 770 F.Supp. 770. Rivera appeals from the ensuing judgment. II. Applicable Legal Principles A. Summary judgment is appropriate when the record reflects “no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “In this context, ‘genuine’ means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party.” United States v. One Parcel of Beal Property, Etc. (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir.1992). In the same context, “material” means that the fact is one susceptible of altering the outcome of the litigation. Id. “On issues where the nonmov-ant bears the burden of proof, he must present definite, competent evidence to rebut the motion.” Id.; see also Garside v. Oseo Drug, Inc., 895 F.2d 46, 49 (1st Cir.1990) (“a mere promise to produce admissible evidence at trial does not suffice to thwart the summary judgment ax”). Our review of an order granting summary judgment is plenary. Garside, 895 F.2d at 48. In undertaking review, we must scrutinize “the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor.” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). Nonetheless, the nonmovant cannot content himself with unsupported allegations; rather, he must set forth specific facts, in suitable evidentiary form, in order to establish the existence of a genuine issue for trial. Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990); Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir.1988). In a proper case, Rule 56 may be used to determine the applicability of a statutory time bar to a particular set of facts. See, e.g., Jensen v. Frank, 912 F.2d 517, 520 (1st Cir.1990); Kali Seafood, Inc. v. Howe Corp., 887 F.2d 7, 9 (1st Cir.1989). B. The Due Process Clause" }, { "docid": "22361831", "title": "", "text": "trial court, “must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor.” Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). We uphold a grant of summary judgment if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). When, as here, the movant-defendant has suggested that competent evidence to prove the case is lacking, the burden devolves upon the nonmovant-plaintiff to “document some factual disagreement sufficient to deflect brevis disposition.” Mesnick, 950 F.2d at 822. This burden is discharged only if the cited disagreement relates to a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). “In this context, ‘genuine’ means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party [and] ‘material’ means that the fact is one that might affect the outcome of the suit under the governing law.” United States v. One Parcel of Real Property, Etc. (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir.1992) (citing Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; internal quotation marks omitted). This requirement has sharp teeth: the plaintiff “must present definite, competent evidence to rebut the motion.” Mesnick, 950 F.2d at 822. Such evidence “cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial.” Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir.1989). As the Court has cautioned, evidence that “is merely colorable or is not significantly probative” cannot deter summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted). Discussion We have carefully reviewed the amplitudinous record and are fully satisfied" }, { "docid": "23054431", "title": "", "text": "the plaintiff ] on any permissible claim or theory.” Murray v. Ross-Dove Co., 5 F.3d 573, 576 (1st Cir.1993). a. Contract Claim Andrade contends that the evidence she submitted on Count V was legally sufficient to permit a jury to find a breach of contract, and therefore the district court erred in granting Self-Help judgment as a matter of law on Count V. Because we agree with the court below that Andrade did not prove a prima facie case of breach of contract, we affirm the court’s grant of the Rule 50(a) motion on Count V. Under Rhode Island law, it is well established that “a promise to render personal services to another for an indefinite term is terminable at any time at the will of either party and therefore creates no executory obligations.” School Comm. of Providence v. Board of Regents for Educ., 112 R.I. 288, 308 A.2d 788, 790 (1973); see also Lamoureux v. Burrillville Racing Ass’n, 91 R.I. 94, 161 A.2d 213, 216 (1960); Booth v. National India-Rubber Co., 19 R.I. 696, 36 A. 714, 715 (1897). Although she presented no evidence of an express employment contract for a fixed period between herself and Self-Help, Andrade argues that certain provisions in the Self-Help Policy and the NCSC Manual, both of which were admitted into evidence, created a triable issue as to whether she and Self-Help had an implied contract for a fixed period and whether she could only be terminated for just cause. Apparently recognizing it to be an issue of first impression, however, the Rhode Island Supreme Court expressly avoided the question of whether to adopt the emerging case law that employment manuals or policies may give rise to enforceable contract rights, Roy v. Woonsocket Inst. for Sav., 525 A.2d 915, 918 (R.I.1987), and, as a federal court hear ing this state law issue under our supplemental jurisdiction, we are reluctant to extend Rhode Island’s contract law “beyond its well-marked boundaries.” Markham v. Fay, 74 F.3d 1347, 1356 (1st Cir.1996); cf. A Johnson & Co. v. Aetna Casualty and Sur. Co., 933 F.2d 66, 73 (1st" }, { "docid": "21149508", "title": "", "text": "ORDER PONSOR, District Judge. Upon de novo review this Report and Recommendation is hereby adopted and the cross motions for summary judgment are DENIED. The clerk will set the matter for a status conference. REPORT AND RECOMMENDATION REGARDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Docket No. 2b) and PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (Docket No. 27) NEIMAN, United States Magistrate Judge. Omar Toro (“Plaintiff’) filed a complaint against his employer, Mastex Industries (“Mastex”), and its human resources manager, Carroll Stewart (“Stewart”) (collectively “Defendants”), with respect to his termination effective November 27,1995. Plaintiff avers that he was unjustly terminated in violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. Before the court are the parties’ cross motions for summary judgment, which have been referred to j;he court for a report and recommendation. See 28 U.S.C. § 636(b)(1)(B). For the reasons which follow, the court recommend^ that both motions be denied. I. SüéMARY JUDGMENT STANDARD In accord with Fed.R.Civ.P. 56(c), summary judgment will be granted if “there is no genuine issue as to any material fact” and “the moving party is entitled to a judgment as a matter of law” Hinchey v. NYNEX Corp., 144 F.3d 134, 140 (1st Cir.1998). Once the moving party has asserted that no genuine issue of material fact exists, the opposing party has the burden to contradict that assertion “by pointing to specific facts demonstrating that there is, indeed, a trialworthy issue.” Nat’l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.1995). A “genuine” issue is one “ ‘that a reasonable jury could resolve ... in favor of the non-moving party.’ ” McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995) (quoting United States v. Plat 20, Lot 17, Great Harbor Neck, New Shoreham, R.I., 960 F.2d 200, 204 (1st Cir.1992)). Not every genuine factual conflict, however, necessitates a trial. It is only when a disputed fact has the “potential to affect the outcome of the suit under the governing law,” if found favorably to the nonmovant, that the materiality hurdle is cleared. Hinchey, 144 F.3d at" }, { "docid": "22792506", "title": "", "text": "den., — U.S. -, 115 S.Ct. 2247, 132 L.Ed.2d 255 (1995); Pagano v. Frank, 983 F.2d 343, 347 (1st Cir.1993); Wynne, 976 F.2d at 794; United States v. One Parcel of Real Property (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir.1992); Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 351-52 (1st Cir.1992); Griggs-Ryan v. Smith, 904 F.2d 112, 115-16 (1st Cir.1990); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 7-8 (1st Cir.1990); Garside v. Oseo Drug, Inc., 895 F.2d 46, 48-49 (1st Cir.1990), and it would serve no useful purpose to rehearse all the particulars of those discussions. For purposes of this case, it suffices to outline the manner in which the rule operates. Once a properly documented motion has engaged the gears of Rule 56, the party to whom the motion is directed can shut down the machinery only by showing that a trial-worthy issue exists. See National Amusements, 43 F.3d at 735. As to issues on which the summary judgment target bears the ultimate burden of proof, she cannot rely on an absence of competent evidence, but must affirmatively point to specific facts that demonstrate the existence of an authentic dispute. See Garside, 895 F.2d at 48. Not every factual dispute is sufficient to thwart summary judgment; the contested fact must be “material” and the dispute over it must be “genuine.” In this regard, “material” means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant. See One Parcel, 960 F.2d at 204. By like token, “genuine” means that “the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party....” Id. When all is said and done, the trial court must “view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor,” Griggs-Ryan, 904 F.2d at 115, but paying no heed to “con-elusory allegations, improbable inferences, [or] unsupported speculation,” Medina-Munoz, 896 F.2d at 8." }, { "docid": "22466570", "title": "", "text": "Sch. of Med., 976 F.2d 791, 793-94 (1st Cir.1992), cert. denied, 507 U.S. 1030, 113 S.Ct. 1845, 123 L.Ed.2d 470 (1993); United States v. One Parcel of Real Property (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir.1992); Griggs-Ryan v. Smith, 904 F.2d 112, 115-16 (1st Cir.1990); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 7-8 (1st Cir.1990); Garside v. Osco Drug, Inc., 895 F.2d 46, 48-49 (1st Cir.1990), and it would serve no useful purpose to rehearse that jurisprudence here. For the nonce, we think it is sufficient to repeat that “summary judgment’s role is to pierce the boilerplate of the pleadings and assay the parties’ proof in order to determine whether trial is actually required.” Wynne, 976 F.2d at 794. Thus, a Rule 56 motion may end the case unless the party opposing it can identify a genuine issue as to a material fact. In this regard, “genuine” means that the evidence on the point is such that a reasonable jury, drawing favorable inferences, could resolve the fact in the manner urged by the nonmoving party. See One Parcel, 960 F.2d at 204. By like token, “material” means that a contested fact has the potential to alter the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant. See id. When the summary judgment record is compiled the trial court must scrutinize it “in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party’s favor,” Griggs-Ryan, 904 F.2d at 115, but disregarding “conelusory allegations, improbable inferences, and unsupported speculation,” Medina-Munoz, 896 F.2d at 8. If no genuine issue of material fact is discernible, then brevis disposition ordinarily follows. Because the summary judgment standard requires legal reasoning as opposed to differential factfinding, appellate review of summary judgment orders is plenary. See Pagano, 983 F.2d at 347; Garside, 895 F.2d at 48. B. The Merits. New Hampshire law controls Smith’s pendent wrongful discharge claim. Under that law, even an at-will employee cannot be cashiered for a reason that offends public" }, { "docid": "10098118", "title": "", "text": "November 2005, Enica learned that said position had been eliminated. II. Standard of Review A district court’s grant of summary judgment is reviewed de novo, considering the facts in the light most favorable to the nonmoving party. See OrtaCastro v. Merck, Sharp & Dohme Quimica P.R., Inc., 447 F.3d 105, 109 (1st Cir.2006); Vélez-Rivera v. Agosto-Alicea, 437 F.3d 145, 150 (1st Cir.2006). Summary judgment is properly granted if the movant can demonstrate 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). “Once the moving party avers the absence of genuine issues of material fact, the non-movant must show that a factual dispute does exist, but summary judgment cannot be defeated by relying on improbable inferences, eonclusory allegations, or rank speculation.” Ingram v. Brink’s, Inc., 414 F.3d 222, 228-29 (1st Cir.2005); see also Freadman v. Metro. Prop, and Casualty Ins. Co., 484 F.3d 91, 99 (1st Cir.2007). In the summary judgment context, “genuine” has been construed to mean “that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party.” United States v. One Parcel of Real Prop., 960 F.2d 200, 204 (1st Cir.1992). Similarly, a fact is “material” if it is “one that might affect the outcome of the suit under the governing law.” Morris v. Gov’t Dev. Bank of P.R., 27 F.3d 746, 748 (1st Cir.1994) (internal citation and quotation marks omitted). III. Discussion A. Reasonable Accommodation 1. Collateral Estoppel First, Enica contends that the district court erred in refusing to apply the doctrine of offensive collateral estoppel to the question of whether the VA provided Enica with a reasonable accommodation. Since the application of the collateral estoppel doctrine primarily presents a question of law, the court affords de novo review. See Keystone Shipping Co. v. New England Power Co., 109 F.3d 46, 50 (1st Cir.1997). Collateral estoppel, also known as issue preclusion, prohibits a party from re-litigating issues that have previously been adjudicated. See Parklane Hosiery Co., Inc. v." }, { "docid": "22078766", "title": "", "text": "against the bank and various bank officials, including Garcia, Canter-Frau, and Pena-Fonseca. Invoking 42 U.S.C. § 1983, appellant claimed that the defendants had suspended him based on his race and political beliefs, thus violating his civil rights. The defendants denied the accusations and, in due season, moved for summary judgment. They contended, inter alia, that the suit, which had been commenced on December 21, 1990, was time-barred. The motion was referred to a magistrate judge who recommended granting it. The district court honored the recommendation. Morris now appeals. II. Applicable Legal Principles A. The Summary Judgment Standard Summary judgment is appropriate when the record reflects “no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). “In this context, ‘genuine’ means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party....” United States v. One Parcel of Real Property, Etc. (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir.1992). By like token, “ ‘material’ means that the 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, 2510, 91 L.Ed.2d 202 (1986)). Appellate review of an order granting summary judgment is plenary. See Pagano v. Frank, 983 F.2d 343, 347 (1st Cir.1993); Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349, 352 (1st Cir.1992). In undertaking such review, the court of appeals must scrutinize the summary judgment record in the light most amiable to the party opposing the motion, indulging all reasonable inferences in that party’s favor. See Pagano, 983 F.2d at 347; Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). Notwithstanding the liberality of this standard, the nonmovant cannot simply rest on perfervid rhetoric and unsworn allegations. When, for example, defendants invoke Rule 56 and identify a fatal flaw in a plaintiffs case, it becomes the plaintiffs burden to produce specific facts, in suitable evidentiary form, to contradict the flaw’s existence and thereby" }, { "docid": "22361832", "title": "", "text": "reasonable jury could resolve the point in favor of the nonmoving party [and] ‘material’ means that the fact is one that might affect the outcome of the suit under the governing law.” United States v. One Parcel of Real Property, Etc. (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir.1992) (citing Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; internal quotation marks omitted). This requirement has sharp teeth: the plaintiff “must present definite, competent evidence to rebut the motion.” Mesnick, 950 F.2d at 822. Such evidence “cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial.” Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir.1989). As the Court has cautioned, evidence that “is merely colorable or is not significantly probative” cannot deter summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted). Discussion We have carefully reviewed the amplitudinous record and are fully satisfied that the district court did not err in granting summary judgment. Fairly read, the record presents no genuine issue as to any material fact. Because this case has consumed so many hours of judicial time, we resist the temptation to wax longiloquent. Instead, we add only a few decurtate observations embellishing what the en banc court previously wrote and remarking the significance of the new materials adduced below. First: Following remand, Tufts satisfactorily filled the gaps that wrecked its initial effort at summary judgment. The expanded record contains undisputed facts demonstrating, in considerable detail, that Tufts’ hierarchy “considered alternative means” and “came to a rationally justifiable conclusion” regarding the adverse effects of such putative accommodations. Wynne, 932 F.2d at 26. Tufts not only documented the importance of biochemistry in a medical school curriculum, but explained why, in the departmental chair’s words, “the multiple choice format provides the fairest way to test the students’ mastery of the subject matter of biochemistry.” Tufts likewise explained what thought it had given to different methods of testing proficiency in" } ]

[ { "docid": "23479252", "title": "", "text": "Co. v. Thompson, 80 F.Supp. 570 (E.D.Mo. 1948), affirmed on other grounds, 180 F.2d 416 (8 Cir. 1950) (no waiver of venue). Also see 5 C. Wright and A. Miller, Federal Practice and Procedure: Civil § 1397, at 878-80 (1969) ; 59 Colum.L.Rev. 1094 (1959). In Dragor Shipping Corp., supra, the rationale of finding no waiver is succinctly stated: “Under Rule 13(a) a party who fails to plead a compulsory claim against an opposing party is held to have waived such claim and is precluded by res judi-cata from bringing suit upon it again. [Citation and footnote omitted]. However, since such a party has no alternative but to submit his compulsory claim against an opposing party, or lose it, his act in asserting it does not constitute a waiver of any jurisdictional defense he previously or concurrently asserts.” 378 F.2d at 244. AVliile we agree that a defendant’s case is even stronger for finding no waiver when a jurisdictional defense is combined with a compulsory counterclaim, we do not think that we should find a waiver simply because the counterclaim in the instant ease is not compulsory. Rule 13(b) does not place any restrictions on a defendant’s right to assert a permissive counterclaim. Nor does Rule 13(b) mention any untoward procedural results (such as waiver) which will be occasioned by the assertion of a permissive counterclaim. . Rule 41(a) : “Voluntary Dismissal: Effect Thereof. (1) By Plaintiff; hy Stipulation. Subject to the provisions of Rule 23 (e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs * * . Rule 41(c) : “Dismissal of Counterclaim, Cross-Claim, or Third-Party Claim. The provisions of this rule [41] apply to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone pursuant to paragraph (1) of subdivision (a) of this rule shall be made before" } ]

[ { "docid": "5512533", "title": "", "text": "a mandatory national class action will enjoin all pending cases including those filed in state courts, the court considers the implications of the Anti-Injunction Act. 28 U.S.C. § 2283 (1988); see In re Dennis Greenman Sec. Litig., 829 F.2d 1539, 1544 (11th Cir.1987). The Anti-Injunction Act precludes a federal court from staying existing proceedings in state court “except as expressly authorized by Act of Congress, or when necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283 (1988); see Standard Microsystems Corp. v. Texas Instruments Inc., 916 F.2d 58, 60 (2d Cir.1990). The Anti-Injunction Act only prohibits a federal court from staying pending state court proceedings and does not affect a court’s power to enjoin future state actions or any actions in federal court. See Dombrowski v. Pfister, 380 U.S. 479, 484 n. 2, 85 S.Ct. 1116, 1119 n. 2, 14 L.Ed.2d 22 (1965) (Anti-Injunction Act does “not preclude injunctions against the institution of state court proceedings, but only bar[s] stays of suits already instituted”); accord B & A Pipeline Co. v. Steve Dorney, 904 F.2d 996, 1001 n. 15 (5th Cir.1990) (same). While the policy underlying the Anti-Injunction Act is the desire “to avoid disharmony between federal and state systems, the exception in Section 2283 reflects congressional recognition that injunctions may sometimes be necessary in order to avoid that disharmony.” Amalgamated Sugar Co. v. NL Industries, 825 F.2d 634, 639 (2d Cir.), cert. denied, 484 U.S. 992, 108 S.Ct. 511, 98 L.Ed.2d 511 (1987). Under the present circumstances, the courts’ power to enjoin the pending state cases falls within all three exceptions to the Anti-Injunction Act. Courts have interpreted the “necessary in aid of jurisdiction” exception liberally “to prevent a state court from ... interfering with a federal court’s flexibility and authority” to decide the case before it. Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng’rs, 398 U.S. 281, 295, 90 S.Ct. 1739, 1747, 26 L.Ed.2d 234 (1970); see In re Baldwin-United Corp., 770 F.2d 328, 337 (2d Cir.1985) (same); In re Corrugated Container Antitrust Litig., 659 F.2d 1332, 1334 (5th" }, { "docid": "20812911", "title": "", "text": "of which it has jurisdiction with one of which it does not. As previously noted, precedent strongly opposes removal in this situation, and although in similar circumstances consolidation has been granted, these decisions are distinguishable from the present controversy.' Since the court believes removal is improper, it necessarily has no authority to consolidate. Assuming Appalachian’s motion to dismiss in the antitrust litigation is denied, the defendants are correct in their contention that Appalachian must then assert its claim on the promissory notes as a compulsory counterclaim pursuant to Rule 13(a) in the antitrust action. The result will be concurrent state and federal litigation involving the same claim — Appalachian’s right to recover on the promissory notes. Furthermore, as defendants assert, the general objective underlying Rule 13(a) of avoiding the cost and delay inherent in multiple suits will be controverted. Nevertheless, this policy is outweighed by a higher principle, the prohibition against federal interference with state court litigation. Analogy can be made to the general prohibition against enjoining state court action contained in 28 U.S.C. § 2283. Where federal antitrust litigation has been fol lowed by state court litigation involving the transaction which formed the basis of the antitrust action, and additionally the plaintiff in the state court suit has counterclaimed in the federal action, the courts have consistently refused to enjoin the state court proceeding. E. g., Reines Distributors, Inc. v. Admiral Corp., 182 F.Supp. 226 (S.D.N.Y.1960); cf. Nolen v. Hammet Co., 56 F.R.D. 361 (D.S.C.1972). The state court, if it is so inclined, may stay its proceeding in order to effectuate the general policy in state and federal courts against multiplicity of litigation. But the state court is not required to do so and both actions may proceed to judgment. The existence of parallel proceedings in state and federal court presents multiplicity of suits, with inconvenience, or even harassment, nonetheless, the state court proceeding cannot be enjoined because of the provisions of 28 U.S.C. § 2283. Although these decisions are based on the explicit statutory directive contained in the anti-injunction statute, the reasoning therein is applicable to defendants’ motions" }, { "docid": "22619503", "title": "", "text": "argued in his answer that the Skamania County action had priority, he did not oppose the motion to dismiss the wiretapping claims from the Skamania County lawsuit. Noel then elected not to amend his pleadings in the Clark County action to assert his wiretapping claims as counterclaims in that suit. Under Washington Rule 15(a), leave to amend a pleading “shall be freely given when justice so requires.” CRLJ 15(a); see also Wilson v. Horsley, 137 Wash.2d 500, 974 P.2d 316, 319 (1999) (discussing liberal amendment policy under the identically worded CR 15(a)). Although Noel would have had to seek permission from the Clark County District Court to amend his pleading to assert his wiretapping claims, we can see no bar in Washington law to such an amendment. We have found no Washington authority interpreting the pending claim exception to Rule 13(a). The purpose of the exception, however, is to prevent Party A from forcing Party B, who has a pending claim against Party A in another forum, into a forum of Party A’s choosing. See Union Paving Co. v. Downer Corp., 276 F.2d 468, 470 (9th Cir.1960) (interpreting the analogous federal Rule 13(a)). Here, the Ska-mania County Superior Court dismissed the pending claims specifically to allow the parties to litigate all the wiretapping claims in the Clark County District Court. Noel neither opposed the motion to dismiss, nor argues to us that he could not have asserted his wiretapping claims in the Clark County suit after they were dismissed from the Skamania County suit. We therefore conclude that Noel’s failure to amend his pleadings in the Clark County suit does not now allow him to escape the characterization of his unasserted claims in that court as compulsory. iv. Opposing Party Rule 13(a) makes compulsory only counterclaims against an opposing party in the lawsuit. Noel’s wiretapping claims are logically related to and thus should have been brought as counterclaims in Sandra Hall’s Clark County wiretapping and privacy suit. Therefore, Noel should have brought his wiretapping claims against Sandra Hall in the Clark County suit, and they are now precluded as unasserted" }, { "docid": "11759899", "title": "", "text": "Moreover, Rule 12 also provides that if the Court denies a motion under the rule, or postpones its disposition until the trial on the merits, “the responsive pleading shall be served within 10 days after notice of the court’s action * * Rule 12 thus draws a distinction between a “motion” under Rule 12 and a “pleading.” It follows that plaintiff may not claim a waiver of an alleged compulsory counterclaim under Rule 13 until the time for defendants’ pleadings to be filed has arrived, and that at this time there is no waiver here. Plaintiff’s motion must first hurdle 28 U.S.C.A. § 2283, which provides: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” That section has been the subject of a carefully reasoned opinion in Reines Distributors, Inc. v. Admiral Corporation, 182 F.Supp. 226 (D.C., S.D., N.Y.1960). In that case plaintiff commenced private antitrust litigation in the Southern District of New York, and prior to answer defendant commenced 41 separate actions on notes, trade acceptances and open account against plaintiff in New York state courts. Of the 41 actions, 39 were discontinued by stipulation. Plaintiff moved in the state courts to stay proceedings in the remaining 2, and when his motion was ultimately denied, he moved in the United States District Court for the Southern District of New York to enjoin defendant from further prosecuting the state court actions. In denying plaintiff’s motion for an injunction, the Court referred to 28 U.S. C.A. § 2283 and its legislative and judicial history back to 1793, as traced in Toucey v. New York Life Insurance Co., 314 U.S. 118, 62 S.Ct. 139, 86 L.Ed. 100 (1941). Prior to its amendment in 1948 and codification in the form quoted above, the Court found that aside from five specific exceptions, the inferior federal courts, as part of the delicate adjustments required by federalism, had been rigorously controlled in their relation" }, { "docid": "23691736", "title": "", "text": "in any way in the enforcement or interpretation of tribal law. Nelson v. Dubois, 232 N.W.2d 54, 57-58 (N.D.1975); see Wauneka v. Campbell, 22 Ariz.App. 287, 291, 526 P.2d 1085, 1089 (1974). III. Diversity Jurisdiction In order for a federal court to have diversity jurisdiction under 28 U.S.C. § 1332, the parties must be of diverse citizenship under 28 U.S.C. § 1332(a), and the courts of the state in which the federal court sits must be able to entertain the action, Woods v. Interstate Realty Co., 337 U.S. 535, 538, 69 S.Ct. 1235, 1237, 93 L.Ed. 1524 (1949). In addition, in cases involving Indians diversity jurisdiction is precluded when state jurisdiction would infringe upon the right of the Indians to self-government. Littell v. Nakai, 344 F.2d 486, 489 (9th Cir.1965); see Begay v. Kerr-McGee Corp., 682 F.2d 1311, 1317 (9th Cir.1982). We think that this case involves a genuine issue of tribal ordinance construction which must be left to the tribal court for resolution. A. Diversity of Citizenship The initial plaintiffs in the federal suit were Richard J. Williams and R.J. Williams Construction Co., both residents of Washington for diversity purposes. The defendant Housing Authority is a corporation with its principal place of business in Montana. Williams Brothers is a citizen of Montana for diversity purposes, but it was joined on a compulsory counterclaim so diversity jurisdiction is not destroyed by that fact. See Union Paving Co. v. Downer Corp., 276 F.2d 468, 471 (9th Cir.1960); H.L. Peterson Co. v. Applewhite, 383 F.2d 430, 433 (5th Cir. 1967). Thus, complete diversity does exist. B. Interference with Tribal Self-Government States which have not assumed general civil jurisdiction over Indian tribes play only a limited role in the resolution of disputes on the reservation. In Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), a non-Indian operating a general store on an Indian reservation brought suit in Arizona state court to collect for goods sold on credit to a tribal member. The Supreme Court held that the Arizona state court had no jurisdiction over the subject matter, since" }, { "docid": "23382519", "title": "", "text": "expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments. This statute is inapplicable here for several reasons. First, actions brought under § 1983, such as this case, are explicit exceptions to the anti-injunction act. Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). Moreover, in Mitchum the Supreme Court repeatedly referred to § 2283 as barring only the issuance of a federal injunction against pending state proceedings. 407 U.S. at 226, 228-31, 92 S.Ct. at 2154. See also Dombrowski v. Pfister, 380 U.S. 479, 484 n.2, 85 S.Ct. 1116, 1119 n.2, 14 L.Ed.2d 22 (1965); Barancik v. Investors Funding Corp., 489 F.2d 933 (7th Cir. 1973); Moore’s Federal Practice ¶0.229[1], As we previously emphasized in the discussion of the Younger doctrine, no state proceedings were pending at the time the district court ruled on the motion for injunctive relief. A grant of the request would have enjoined the commencement of actions to enforce the New Jersey law, but it would not have involved enjoining any state proceedings already underway. Section 2283, the Supreme Court has explained, does “not preclude injunctions against the institution of state proceedings, but only bars stays of suits already instituted.” Dombrowski v. Pfister, supra, 380 U.S. at 484 n.2, 85 S.Ct. at 1119 n.2. On this appeal we must decide whether the district court should have granted injunctive relief on November 25. We are not foreclosed from reversing the district court simply because the federal defendants raced to the state courts after the federal court acted. The anti-injunction act is not designed to deprive a federal plaintiff of the right to an appeal. Indeed, the statute expressly contemplates enjoining pending state proceedings when necessary in aid of the jurisdiction of the federal court. In this instance, we must preserve our appellate jurisdiction and review function. Since there were no state proceedings to be enjoined at the time the district court acted, the anti-injunction statute does not foreclose relief. Accordingly, we conclude that there are no barriers to consideration of. the" }, { "docid": "22186172", "title": "", "text": ".... (emphasis added). It is widely recognized that the “pending action” exception is intended to enable a party to escape the waiver rule normally applicable to compulsory counterclaims that a party fails to plead, but that a party may elect to treat the counterclaim as compulsory (if it arises out of the same transaction or occurrence) and thus within the court’s ancillary jurisdiction even though it is the subject of a pending action. See, e.g., H. L. Peterson Co. v. Applewhite, 383 F.2d 430, 433 n.3 (5th Cir. 1967); Union Paving Co. v. Downer Corp., 276 F.2d 468, 470-71 (9th Cir. 1960); Fox Chemical Co. v. Amsoil, Inc., 445 F.Supp. 1355, 1361 (D.Minn.1978). The commentators also agree on this construction of rule 13(a). See 3 Moore’s Federal Practice H 13.14[2], at 13-332 to -333 (1980); 6 C. Wright & A. Miller, Federal Practice & Procedure § 1411, at 59-60 (1971); Fed. Proc., L.Ed. § 62:218 (1981). Amoco’s counterclaim clearly arises out of the same transaction as Brach’s suit under the PMPA. The district court therefore has subject matter jurisdiction over the counterclaim. VI. CONCLUSION For the foregoing reasons, the decision of the district court is affirmed in part and reversed in part. The cause is hereby remanded for further proceedings not inconsistent with this opinion. . Amoco conducted a profitability study of the service stations it had acquired from Exxon. That study used a “profitability index” (“PI”) to rate the stations. A good PI, according to Amoco, would be somewhere around 10%. In 1979, Amoco calculated Brach’s PI to be 3.2% or 5.6% with a rent increase. The study allegedly revealed that a sale of the premises to Brach would raise the PI to a healthy (i.e., profitable) 18.5%. . The term “franchise” refers specifically to the trademark license and includes any contract under which the leased marketing premises are occupied or which pertains to the supply of motor fuel to be sold under the trademark. 15 U.S.C. § 2801(1). That term is to be distinguished from the term “franchise relationship” which means “the respective motor fuel marketing or distribution" }, { "docid": "2784256", "title": "", "text": "and Lektro-Vend’s losses arising from denial of the preliminary injunction will be severe, as demonstrated above. See Semmes Motors, Inc. v. Ford, 429 F.2d 1197 (2d Cir. 1970). B. Because they seek an injunction against state court proceedings, plaintiffs are faced with a special burden. The anti-injunction statute, 28 U.S.C. § 2283, prohibits issuance of an injunction to stay proceedings in a state court except under three conditions: (1) when expressly authorized by an act of Congress, (2) where necessary in aid of jurisdiction, and (3) to protect or effectuate federal judgments. Moreover, the principles of comity and federalism militate against unnecessarily interfering with pending state court actions even if § 2283 is satisfied. Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). ■There is a paucity of authority on the issue of whether the injunction provisions contained in 15 U.S.C. § 26 provide express congressional authorization to grant injunctions against state court actions. United States v. Bayer, 135 F. Supp. 65 (S.D.N.Y.1955) indicates that express authorization is provided while Helfenbeing v. International Ind., Inc., 438 F.2d 1068 (8th Cir. 1971) states no such authority exists. The Supreme Court’s decision in Mitchum v. Foster, supra, seems to clarify the issue. In Mitchum, a 42 U.S.C. §. 1983 case, the Court held that to qualify under the “expressly authorized” exception of the anti-injunction statute, a federal law need not contain an express reference to § 2283 nor expressly authorize an injunction of a state court proceeding. To qualify as an expressly authorized exception the statute would, however, have to create “a specific and uniquely federal right or remedy, enforceable in a federal court of equity, that could be frustrated if the federal court were not empowered to enjoin a state court proceeding.” 407 U.S. at 237, 928 Ct. at 2159. These tests are equally applicable to antitrust actions. When Congress passed the various antitrust laws it clearly created federal rights and remedies enforceable in a federal equity court. In fact, such power was exclusively vested in the federal court system, indicating congressional approval of enjoining certain state" }, { "docid": "11759898", "title": "", "text": "the basis that prayers 4, 5 and 6 of the complaint make it apparent that Civil Action No. 12900 involves.the same issues raised in the proceedings in the People’s Court for Baltimore County. Plaintiff further claims that the claim of defendant Chain for repossession and overdue rent was a compulsory counterclaim, Rule 13(a), which has been waived by defendant Chain in its failure to assert it in the pleadings. While Rule 13(a) requires a “pleading” to state as a counterclaim any claim, arising out of the transaction or occurrence which is the subject of dispute and which at the time of serving the pleading the pleader has against any opposing party in the instant proceeding, defendants, in response to the complaint, have all filed various motions under Rule 12, and these motions have not been set for hearing and decided. Rule 12 not only permits certain defenses to be raised by motion, but states that, “A motion making any of these defenses shall be made before pleading if a further pleading is permitted.” (emphasis supplied). Moreover, Rule 12 also provides that if the Court denies a motion under the rule, or postpones its disposition until the trial on the merits, “the responsive pleading shall be served within 10 days after notice of the court’s action * * Rule 12 thus draws a distinction between a “motion” under Rule 12 and a “pleading.” It follows that plaintiff may not claim a waiver of an alleged compulsory counterclaim under Rule 13 until the time for defendants’ pleadings to be filed has arrived, and that at this time there is no waiver here. Plaintiff’s motion must first hurdle 28 U.S.C.A. § 2283, which provides: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” That section has been the subject of a carefully reasoned opinion in Reines Distributors, Inc. v. Admiral Corporation, 182 F.Supp. 226 (D.C., S.D., N.Y.1960). In that case plaintiff" }, { "docid": "21106016", "title": "", "text": "METZNER, District Judge. On February 27,1959, plaintiff, Reines Distributors, Inc., commenced this action based in part on alleged illegal price discrimination in violation of the antitrust laws. Subsequently, on or about March 19, 1959, but prior to serving their answer, the defendants, Admiral Corp. et al., commenced 41 separate actions in the New York state courts against Reines on notes and trade acceptances made by Reines to Admiral and on an open account between the parties. Then in this court Admiral asserted these claims as compulsory counterclaims under Rule 13 (a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Of the 41 actions commenced by Admiral, 39 have been discontinued by stipulation. Two are still pending. Reines moved in the state court for a stay of these two actions. The motion was granted by the Supreme Court at Special Term, but subsequently the Appellate Division reversed and vacated the stay. 9 A.D.2d 410, 194 N.Y.S. 2d 932 (Dec. 31, 1959). Application for leave to appeal granted subsequent to opinion, 10 A.D.2d 657, 197 N.Y.S.2d 446. Reines now moves in this court for an order enjoining Admiral from further prosecuting the state court actions. In moving to restrain Admiral, Reines relies principally on (1) the policy of Rule 13(a) of the Federal Rules of Civil Procedure, and (2) the exclusive jurisdiction of the federal courts over antitrust suits, 15 U.S.C.A. § 15, and their power to prevent and restrain violations of the Antitrust Acts, 15 U.S.C.A. §§ 4, 26. Plaintiff asserts that aggregating the policies enunciated in Rule 13(a) and the antitrust laws, and further adding the alleged intent of the defendants to harass the plaintiff so as to prevent the suit in this court from reaching a determination, the sum total vests in this court the power to stay the state court proceedings “in aid of its jurisdiction.” 28 U.S.C. § 2283. Plaintiff realizes that the general prohibition against enjoining state court actions contained in 28 U.S.C. § 2283 is a formidable barrier to overcome to gain the relief sought here. Section 2283 provides that: “A court of the" }, { "docid": "23521367", "title": "", "text": "the local law rules of another state to resolve other issues in the case. . Nor, we might add, do we perceive any unfairness to Northwest Sports in applying the Federal Rules to the question before us. While the parties apparently expected the contract to be interpreted in accordance with the laws of British Columbia, it is not reasonable to assume that the parties expected Canadian law to be applied to the procedural question whether an action for breach of the contract would be a compulsory counterclaim in a pending antitrust suit in a United States district court. See Restatement (Second) of Conflicts of Laws § 122, Comment a (1971). . Fed.R.Civ.P. 13(a) provides: “A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action. .. . ” . The Anti-Injunction Statute, 28 U.S.C. § 2283, removes from the federal courts the equitable power to grant injunctions to stay state court proceedings “except as expressly authorized by Act of Congress or where necessary in aid of its jurisdiction or to protect or effectuate its judgments.” Rule 13(a) has been held not to create an express statutory exception to the proscriptions of § 2283 and, accordingly, a federal court is barred by § 2283 from enjoining a party from proceeding in state court on a claim that should have been pleaded as a compulsory counterclaim in a prior federal suit. See e. g., Nolen v. Hammet Co., Inc., 56 F.R.D. 361, 362 (D.S.C.1972); see also 6 C. Wright & A. Miller, Federal Practice and Procedure, § 1418 at 106. It should be emphasized, however, that Congress has not removed from the federal courts the" }, { "docid": "23521368", "title": "", "text": "jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action. .. . ” . The Anti-Injunction Statute, 28 U.S.C. § 2283, removes from the federal courts the equitable power to grant injunctions to stay state court proceedings “except as expressly authorized by Act of Congress or where necessary in aid of its jurisdiction or to protect or effectuate its judgments.” Rule 13(a) has been held not to create an express statutory exception to the proscriptions of § 2283 and, accordingly, a federal court is barred by § 2283 from enjoining a party from proceeding in state court on a claim that should have been pleaded as a compulsory counterclaim in a prior federal suit. See e. g., Nolen v. Hammet Co., Inc., 56 F.R.D. 361, 362 (D.S.C.1972); see also 6 C. Wright & A. Miller, Federal Practice and Procedure, § 1418 at 106. It should be emphasized, however, that Congress has not removed from the federal courts the power to enjoin parties subject to their jurisdiction from proceeding in the courts of a foreign country, leaving the decision to enjoin such actions squarely within the discretion of the district courts. . In re Unterweser Reederei, Gmbh, supra, arose as the result of a towing accident in which a drilling barge owned by the Zapata Off-Shore Company (Zapata) was damaged while being towed by a tug owned by Unter-weser Reederei (Unterweser). Both Zapata and Unterweser brought suit in federal district court in Florida: Zapata, for damages to his barge, Unterweser, for an exoneration and limitation of liability arising from the mishap and, by way of counterclaim, for moneys owed under the towage contract. Unterweser also brought an action under the contract in the High Court of Justice. This action enjoined by the district court, and the Fifth Circuit affirmed. In Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), however, the Supreme Court reversed. The Court noted that the Zapata-Unterweser towage contract contained a clause providing that any" }, { "docid": "20272970", "title": "", "text": "basis that its resolution may be affected by State law.” See 28 U.S.C. § 157(b)(3). . Indeed, most courts to have considered the issue have agreed that a limiting construction of § 157(b)(2)(C) is necessary to make it conform to the Marathon opinion. See Collie^ 3.02[3][d][i] (discussing the approaches that courts have taken to limit the broad sweep of § 157(b)(2)(C)). . Our review of the record reflects that Vickie Lynn Marshall had not joined the will contest until 1998, well after she had asserted the counterclaim in the bankruptcy proceeding. Thus the exception to compulsory counterclaims for those claims pending elsewhere, see Fed.R.Civ.P. 13(a)(2)(A), does not apply to the bankruptcy counterclaim. Furthermore, even if the claim had been pending in Texas, if the \"defendant [here, Vickie Lynn Marshall] elects to interpose the pending claim as a counterclaim, ... [s]he should be allowed to do so, and the counterclaim will be treated as if it were compulsory and thus under the ancillary jurisdiction of the court.” 6 Wright & Miller, Federal Practice and Procedure § 1411 (citing, inter alia, Union Paving Co. v. Downer Corp., 276 F.2d 468, 470 (9th Cir.1960)). . We say that the focus is largely on the pleadings because there may be other information available to the bankruptcy court, for example, by way of a motion under § 157(b)(3) or oral argument on the motion, that would not be retrospective in nature. See 28 U.S.C. § 157(b)(3) (providing that ”[t]he bankruptcy judge shall determine, on the judge’s own motion or on timely motion of a party, whether a proceeding is a core proceeding under this subsection or is a proceeding that is otherwise related to a case under title 11”). . For example, in her counterclaim Vickie Lynn Marshall made the following allegation: Debtor is informed and believes that Counterdefendant intentionally interfered with that expectancy by engaging in a concerted campaign to undermine Mrs. Marshall's rights and Mrs. Marshall's marriage to her Husband, by effectively imprisoning Mr. Marshall against his wishes, by surrounding Mr. Marshall with hired agents who reported to the Younger Son, by stationing" }, { "docid": "20163691", "title": "", "text": "Plaintiffs do not show a sufficient likelihood of success on the merits of their Section 1983 claims to warrant a preliminary injunction, the Court, like the parties, focuses its analysis exclusively on the Plaintiffs’ claims under the federal disability statutes. The federal Anti-Injunction Act provides that “[a] Court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283. This Act presents an absolute ban on enjoining any state court proceeding, unless the facts of the case bring the matter within one of the three narrowly construed exceptions. Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 630, 97 S.Ct. 2881, 2887, 53 L.Ed.2d 1009 (1977); Mitchum v. Foster, 407 U.S. 225, 228-29, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). [A] federal court does not have inherent power to ignore the limitations of § 2283 and to enjoin state court proceedings merely because those proceedings interfere with a protected federal right or invade an area pre-empted by federal law, even when the interference is unmistakably clear. Rather, when a state proceeding presents a federal issue, even a preemption issue, the proper course is to seek resolution of that issue by the state court. Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 149-50, 108 S.Ct. 1684, 100 L.Ed.2d 127 (1988) (internal quotation marks and citations omitted). “The three excepted circumstances are (i) the express provisions of another act of Congress authorizing such an order; (ii) necessity in aid of the federal court’s jurisdiction and (iii) the need to protect or effectuate the federal court’s judgments.” Standard Microsystems Corp. v. Texas Instruments Inc., 916 F.2d 58, 60 (2d Cir.1990) (citing Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 287-88, 90 S.Ct. 1739, 1743-44, 26 L.Ed.2d 234 (1970)). At the hearing, the Plaintiffs argued that, because they are seeking to enjoin the IHA from prosecuting the state court action, and not the state court action itself," }, { "docid": "23382518", "title": "", "text": "Judiciary Comm’n, 565 F.2d 295 (5th Cir. 1977) (en banc); Housworth v. Glisson, 485 F.Supp. 29 (N.D.Ga.1978); Graham v. Breier, 418 F.Supp. 73 (E.D.Wis.1976). Although state proceedings have now been brought, this Court is reviewing the question whether the district court should have granted relief on November 25, before any state proceedings were in any way initiated. Because Younger was not a viable issue before the district court, we may fulfill our appellate review function free of the constraints of the abstention doctrine. Our attention has not been called to any authority holding that the Younger principle is meant to deprive a litigant who received a ruling from the federal court before any state proceedings began, of the right to appeal. C. Anti-Injunction Act The third contention advanced by the defendants to suggest that this Court is precluded from granting the relief sought by Kennecott is the anti-injunction statute, 28 U.S.C. § 2283. It provides: A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments. This statute is inapplicable here for several reasons. First, actions brought under § 1983, such as this case, are explicit exceptions to the anti-injunction act. Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972). Moreover, in Mitchum the Supreme Court repeatedly referred to § 2283 as barring only the issuance of a federal injunction against pending state proceedings. 407 U.S. at 226, 228-31, 92 S.Ct. at 2154. See also Dombrowski v. Pfister, 380 U.S. 479, 484 n.2, 85 S.Ct. 1116, 1119 n.2, 14 L.Ed.2d 22 (1965); Barancik v. Investors Funding Corp., 489 F.2d 933 (7th Cir. 1973); Moore’s Federal Practice ¶0.229[1], As we previously emphasized in the discussion of the Younger doctrine, no state proceedings were pending at the time the district court ruled on the motion for injunctive relief. A grant of the request would have enjoined the commencement of actions to enforce the New Jersey law, but it" }, { "docid": "10230614", "title": "", "text": "precisely what the compulsory counterclaim rule contemplates preventing, yet is precisely what CSB did, and what the FDIC continues to pursue. The court recognizes that a claim is not compulsory if it was the subject of another pending action at the time the action was commenced. Fed.R.Civ.P. 13; Baker v. Gold Seal Liquors, Inc., 417 U.S. at 469 n. 1, 94 S.Ct. at 2506 n. 1. The purpose of this exception is seemingly to prevent one party from compelling another to try his cause of action in a court not of the latter’s choosing when the same cause of action is already the subject of pending litigation in another forum, one which was probably chosen by the owner of the cause of action concerned. Union Paving Co. v. Downer Corp., 276 F.2d 468, 470 (9th Cir.1960). However, that is not the case here. CSB’s collection and foreclosure action was not pending in any state or federal court prior to the commencement of Phillips’ RICO, Bank Tying Act and usury actions. After Phillips commenced his causes of action in federal court, CSB unilaterally selected its own forum; it brought the collection and foreclosure action in state court when it should have asserted those claims as a counterclaim in the pending federal suit. Because the CSB’s collection and foreclosure action was an unasserted compulsory counterclaim to Phillips’ RICO, Bank Tying Act and usury claims, once those actions proceeded to judgment, principles of res judicata would bar CSB’s subsequent pursuit of its claims in any other forum. The next question here, then, is whether the FDIC, as receiver and/or liquidator for CSB, is likewise barred by the compulsory counterclaim rule from further pursuit of the collection and foreclosure action now pending in the federal district court. V. Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA) The FDIC argues that, even if CSB waived its rights to nonjudicial foreclosure, making the claims in question compulsory counterclaims, that waiver is not binding on the FDIC under the D’Oench, Duhme doctrine, as well as Section 1823(e) of Title 12. D’Oench, Duhme & Co. v." }, { "docid": "23183263", "title": "", "text": "ACIM’s claim in the way that a defendant’s indemnification action against an impleaded third party is ancillary to a plaintiff’s underlying claim against defendant; here, the two claims are virtually identical. Kroger’s holding that ancillary jurisdiction does not extend to a plaintiff's cause of action against a citizen of the same state in a diversity case thus bars this court from considering Acton’s claim against appellees, where Acton and Bachman are both Delaware corporations. Appellant argues, however, that Acton could be joined to the suit if the appellees would assert a counterclaim for breach of contract against appellant and Acton. While appellees’ counterclaim is not technically compulsory since it is the subject of an ongoing state court proceeding, see Fed.R. Civ.P. 13(a)(1), several courts have applied ancillary jurisdiction in similar contexts to allow a defendant to add a new party to a counterclaim which arises out of the same “transaction or occurrence” as the underlying claim. See, e.g., H.L. Peterson Co. v. Applewhite, 383 F.2d 430, 433-34 (5th Cir. 1967); Union Paving Co. v. Downer Corp., 276 F.2d 468 (9th Cir. 1960); Dery v. Wyer, 265 F.2d 804, 807-08 (2d Cir. 1959). The rationale of these cases, however, does not apply to the present controversy. Unlike parties in the cited cases, the appellees, defendants below, have chosen not to assert this counterclaim in federal court; rather, they have elected to pursue their ongoing state court action. Invoking ancillary jurisdiction based on the appellees’ hypothetical “duty” to take all possible steps to enable Acton to join this suit contradicts the statutory policy of granting defendants the option of trying their cause of action in a forum of their prior choosing. See H.L. Peterson Co., supra, 383 F.2d at 433 n.3; Union Paving Co., supra, 276 F.2d at 470. Moreover, such a holding would fly in the face of the Supreme Court’s admonition that ancillary jurisdiction is most appropriate to protect a defendant who is haled into federal court against his will from multiple and piecemeal litigation. We therefore agree with the district court that Acton cannot be joined to this suit" }, { "docid": "22186171", "title": "", "text": "all other respects. V. COMPULSORY COUNTERCLAIM Amoco filed a counterclaim seeking an order to vacate the service station premises and asking for damages for Braeh’s refusal to surrender the premises. The district court found that the counterclaim was permissive and dismissed it for want of subject matter jurisdiction. The court based that finding on the fact that the counterclaim was the subject of an action then pending in the Circuit Court of Du-Page County, Illinois. Amoco argues, and we agree, that the counterclaim was compulsory and therefore within the court’s ancillary jurisdiction. Federal Rule of Civil Procedure 13(a) sets forth the rule on compulsory counterclaims: A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim .... But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action .... (emphasis added). It is widely recognized that the “pending action” exception is intended to enable a party to escape the waiver rule normally applicable to compulsory counterclaims that a party fails to plead, but that a party may elect to treat the counterclaim as compulsory (if it arises out of the same transaction or occurrence) and thus within the court’s ancillary jurisdiction even though it is the subject of a pending action. See, e.g., H. L. Peterson Co. v. Applewhite, 383 F.2d 430, 433 n.3 (5th Cir. 1967); Union Paving Co. v. Downer Corp., 276 F.2d 468, 470-71 (9th Cir. 1960); Fox Chemical Co. v. Amsoil, Inc., 445 F.Supp. 1355, 1361 (D.Minn.1978). The commentators also agree on this construction of rule 13(a). See 3 Moore’s Federal Practice H 13.14[2], at 13-332 to -333 (1980); 6 C. Wright & A. Miller, Federal Practice & Procedure § 1411, at 59-60 (1971); Fed. Proc., L.Ed. § 62:218 (1981). Amoco’s counterclaim clearly arises out of the same transaction as Brach’s suit under the PMPA. The district court therefore" }, { "docid": "22619504", "title": "", "text": "Union Paving Co. v. Downer Corp., 276 F.2d 468, 470 (9th Cir.1960) (interpreting the analogous federal Rule 13(a)). Here, the Ska-mania County Superior Court dismissed the pending claims specifically to allow the parties to litigate all the wiretapping claims in the Clark County District Court. Noel neither opposed the motion to dismiss, nor argues to us that he could not have asserted his wiretapping claims in the Clark County suit after they were dismissed from the Skamania County suit. We therefore conclude that Noel’s failure to amend his pleadings in the Clark County suit does not now allow him to escape the characterization of his unasserted claims in that court as compulsory. iv. Opposing Party Rule 13(a) makes compulsory only counterclaims against an opposing party in the lawsuit. Noel’s wiretapping claims are logically related to and thus should have been brought as counterclaims in Sandra Hall’s Clark County wiretapping and privacy suit. Therefore, Noel should have brought his wiretapping claims against Sandra Hall in the Clark County suit, and they are now precluded as unasserted compulsory counterclaims. Brian Hall, however, was not a plaintiff — and thus not an opposing party — in Sandra Hall’s Clark County suit. Therefore, Noel’s wiretapping claims against him were not compulsory counterclaims in that suit. The Washington courts have adopted a strict reading of Rule 13(a)’s requirement that a pleader must bring compulsory counterclaims against “any opposing party.” In Nancy’s Product, Inc. v. Fred Meyer, Inc., 61 Wash.App. 645, 811 P.2d 250 (1991), the Washington appeals court held: To interpret the term “opposing party” in the context of the court rules so as to include a nonparty with an adverse interest is a non sequitur. We hold that an opposing party for purposes of CR 13(a) is one who asserts a claim against the prospective counterclaimant in the first instance. Id. at 253. Thus, even though Noel’s present claims were compulsory counterclaims in the earlier suit as to Sandra, they were not as to Brian. We therefore reverse the district court’s grant of summary judgment for Brian Hall with respect to Noel’s wiretapping claims" }, { "docid": "20812912", "title": "", "text": "2283. Where federal antitrust litigation has been fol lowed by state court litigation involving the transaction which formed the basis of the antitrust action, and additionally the plaintiff in the state court suit has counterclaimed in the federal action, the courts have consistently refused to enjoin the state court proceeding. E. g., Reines Distributors, Inc. v. Admiral Corp., 182 F.Supp. 226 (S.D.N.Y.1960); cf. Nolen v. Hammet Co., 56 F.R.D. 361 (D.S.C.1972). The state court, if it is so inclined, may stay its proceeding in order to effectuate the general policy in state and federal courts against multiplicity of litigation. But the state court is not required to do so and both actions may proceed to judgment. The existence of parallel proceedings in state and federal court presents multiplicity of suits, with inconvenience, or even harassment, nonetheless, the state court proceeding cannot be enjoined because of the provisions of 28 U.S.C. § 2283. Although these decisions are based on the explicit statutory directive contained in the anti-injunction statute, the reasoning therein is applicable to defendants’ motions for removal and consolidation. If removal were granted the state court litigation would be terminated. While this would be consistent with judicial economy, it is drastically opposed to the deference federal courts must accord to state court jurisdiction. The necessity of pleading a cause of action as a compulsory counterclaim in a federal action does not deprive the state court of jurisdiction of a claim created by state law. The counterclaim cannot alter the basis of the cause of action; it has its genesis in state law and therefore is inadequate to confer federal removal jurisdiction pursuant to 28 U.S.C. § 1441(b). For the aforementioned reasons these three actions are remanded to the Court of Law and Chancery of the City of Roanoke, Virginia. . Defendants Region Properties, Inc., M. L. Strauss and Horace G. Eralin executed a promissory note for the principal sum of $27,161.00 on March 1, 1968, payable to the order of plaintiff, Appalachian Power Co. Defendants Strauss Construction Co., Inc., M. L. Strauss and Shelia S. Strauss executed a promissory note" } ]

[ { "docid": "15987182", "title": "", "text": "ORR, Circuit Judge. We decide on this appeal that a transfer by a debtor, within four months of bankruptcy, to a creditor, with knowledge of the debtor’s insolvency, made in discharge of a California inchoate mechanic’s lien may not be avoided by the trustee as a preference within the meaning of sec. 60, sub. b of the Bankruptcy Act, 11 U.S.C.A. § 96. The relevant facts are not in dispute and a summary thereof follows: On May 28, 1952 Moses A. Fleming, the bankrupt, conveyed to appellant Ben Greenblatt, certain real property situate in Los Angeles County, California in consideration of $3000 in cash and a note by Greenblatt in the amount of $36,000, payable on or before June 1, 1953. As security for the note Greenblatt executed and placed in escrow two deeds of trust to the property. The deeds contained provisions wherein Fleming, as beneficiary, agreed to the reconveyance by the escrow to Greenblatt of individual lots upon payment of $500 for each lot. The arrangement was made in contemplation of Greenblatt’s intention to develop the land as a subdivision project. The trust deeds further recited that the bankrupt agreed to give credit against the indebtedness evidenced by the note for improvements which Greenblatt agreed to install on certain adjoining tracts retained by Fleming. Greenblatt completed the installation of utilities, improvements and paving on the retained land in December, 1952. On December 12, 1952 Greenblatt billed Fleming for $8234 for the work and requested credit on the note. In addition Greenblatt demanded a further credit for a sum paid by Greenblatt to discharge a mortgage on the property purchased from Fleming. The existence of the mortgage had not been disclosesd by Fleming at the time of purchase and apparently Fleming at some time had agreed to take care of the indebtedness. There is a conflict in the evidence as to whether Greenblatt threatened to file a mechanic’s lien for the improvement work in the event Fleming refused or delayed in allowing the credit. In the meantime and with Greenblatt’s knowledge Fleming assigned the note and security to one" } ]

[ { "docid": "208236", "title": "", "text": "the time of the exchange, or whether the valuation is determined at the time of hearing the preference complaint, and thus subsequent to the actual time of transfer and payment. Fort Worth relies on the language of § 547(c)(1) excepting from preference attacks transfers “(1) to the extent that such transfer was (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange” From this language it concludes that the parties intended the release of the lien to constitute new value when the payment was made and, regardless of the actual value, the parties intent should control. The Trustee offers a different reading of § 547(c)(1) and basically asserts that the intent should focus on whether the exchange was intended to be contemporaneous and not whether the parties intended the contemporaneous exchange to be one of new value. Rather, asserts the Trustee, the Court should look to the effect of the transfer upon the creditors of the estate. We agree. The Code defines “new value” at § 547(a)(2) to mean: money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, but does not include an obligation substituted for an existing obligation. Upon analysis this definition demands that there be a quid pro quo value exchange between the debtor and transferee. However, the transfer may not simply be a substitution for an existing obligation. The facts of this case present a unique situation unanticipated by the above definition. Therefore, we must decide if the exchange that took place falls within the statutory definition. We construe the definition to essentially mean a transfer which has value in the economic sense. A transfer which may neither be void or voidable must, nevertheless, have some actual value or economic worth. A valid but valueless transfer falls outside" }, { "docid": "6241328", "title": "", "text": "Court correctly ruled the Assignment satisfies the fifth element of the § 547(b) requirement. (3) Exceptions to Voidable Preferences Marad argues that both the “new value” and/or the “improvement in position” exceptions apply to these facts so as to make the Assignment non-voidable. The Bankruptcy Court ruled that neither exception applied to these facts, and for the following reasons, this ruling is affirmed. (a) New Value Section 547(e)(1) of the Bankruptcy Code protects a transfer from avoidance if the transfer was “intended by the debtor and creditor ... to be a contemporaneous exchange for new value given to the debtor” and was “in fact a substantially contemporaneous exchange.” 11 U.S.C. § 547(c)(1). The Code, in turn, defines “new value” as “money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including process of such property, but does not include an obligation substituted for an existing obligation.” 11 U.S.C. § 547(a)(2). Marad argues that by granting its consent to the bareboat charter it exchanged new value to USL. In particular, Marad describes its consent as a “release ... of property.” Id. Marad, however, had no “property” in the bareboat charters prior to the Assignment. A mortgage under the Ship Mortgage Act does not extend to the freight of the mortgaged vessel absent express language in the mortgage documents. In re Levy-Mellon, 61 B.R. 331, 334 (Bankr.W.D.La.1986). See also United States v. Sterling, 22 F.2d 323, 325 (D.N.Y.1927). A vessel’s earnings, including charter hire, is part of a vessel’s freight. Levy-Mellon, 61 B.R. at 334. Thus, to have a property interest in the charter hire prior to the Assignment, the mortgage documents would have to expressly provide that Marad has a security interest in the Vessel’s freight. No such provision, however, exists in any of the mortgage documents. Consequently, Marad did not have an express property right to the charter hire at the time the Mortgages were executed. It gained this" }, { "docid": "6650974", "title": "", "text": "made to a claim of preference. The issue in this appeal is the applicability of § 547(c)(4), which provides that (c) The trustee may not avoid under this section a transfer— (4) to or for the benefit of a creditor, tó the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor— (A) not secured by an otherwise unavoidable security interest; and (B) on account of which new value the debtor did not make an otherwise unavoidable transfer to or for the benefit of such creditor[.] For purposes of this section, “new value” is defined as: money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation. The theory behind the “new value” exception has been ably explained by the United States Court of Appeals for the Eighth Circuit: The trustee is able to avoid preferences in bankruptcy for the sake of equality of distribution of assets among creditors. Therefore, a preference does not merely diminish the estate, it does so unfairly. A creditor who subsequently advances to the estate new value in an amount equal to the preference, however, “in effect returns the preference to the estate.” The debtor who makes a preferential transfer to a creditor who subsequently advances new value, then, has not “depleted the bankruptcy estate to the disadvantage of other creditors.” But when a debtor pays for new value or the creditor retains a security interest in the new value, “there is in effect no return of the preference.” Thus, the relevant inquiry under section 54.7(c) (4.) is ivhether the new value replenishes the estate. If the new value advanced has been paid for by the debtor, the estate is not replenished and the preference unfairly benefits a creditor. Other courts have noted that one purpose of the new value exception" }, { "docid": "9458551", "title": "", "text": "are satisfied, the transfer of the 1934 motor vehicle falls within the contemporaneous exchange exception of § 547(c), because Mr. Winkle transferred the 1934 vehicle “in order to obtain his dismissal in the lawsuit pending against him” (“Post Trial Brief” of Palmer at p. 10). Section 547(c) provides that: (c) The trustee may not avoid under this section a transfer— (1) to the extent that such transfer was— (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporane ous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange; The critical determination here is whether Palmer extended any “new value” in exchange for the transfer of the automobile to it. For purposes of preferential transfers, “new value” means: money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation. 11 U.S.C. § 547(a)(2). As part of its § 547(c)(1) affirmative defense, Palmer must prove with specificity the new value given to the debtor. Jet Florida, Inc. v. American Airlines, Inc. (In re Jet Florida Systems, Inc.), 861 F.2d 1555, 1559 (11th Cir.1988). Here, all that Mr. Winkle received in return for the transfer of the 1934 automobile was a release from antecedent liability. Such a release is nothing more nor less than what any debt- or receives when he pays his creditor. It is merely the satisfaction of an antecedent debt and is precisely what § 547(b) militates against within the 90-day period prior to bankruptcy. Further, it makes no difference that the debt was satisfied in the context of litigation rather than as a result of a pre-litigation demand for payment. If a release ... resulting from settling a claim was new value bringing the settlement payment within the contemporaneous exchange exception, creditors would rush to" }, { "docid": "22117675", "title": "", "text": "EXCEPTION Having found that the $400 payment was the only rental payment shown to have been made with respect to the debtor’s obligation to Avis, and that it amounted to a preferential payment of an antecedent indebtedness, there next remains for consideration the affirmative defense that the transfer was a contemporaneous exchange for new value within the meaning of Code § 547(c)(1), which provides as follows: “(c) The trustee may not avoid under this section a transfer— (1) to the extent that such transfer was — (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange;” Avis argues that it gave new value to the' debtor when it accepted the $400 payment because of its forbearance from repossessing the leased vehicle. The term “new value” is defined in Code § 547(a)(2) as follows: “(2) ‘new value’ means money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, but does not include an obligation substituted for an existing obligation(Emphasis added) The basic concept underlying bankruptcy legislation, and of particular significance in dealing with preferences is the fundamental goal of equality of distribution. See House Report No. 595, 95th Cong., 1st Sess. 177, 178 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787. A creditor who gives new value in exchange for the receipt of a payment from the debt- or has not depleted the debtor’s estate to •the detriment of other creditors. In the instant case, a forebearance by Avis from repossessing the rented vehicle does not enhance the value of the debtor’s estate. The debtor’s continued right to drive the rented vehicle is not an asset of benefit to his creditors that could reasonably offset the diminution of his estate upon the payment of the $400. Indeed,.the net effect was that upon the" }, { "docid": "17931382", "title": "", "text": "for an avoidable preference under section 547(b) of the Bankruptcy Code have been met. Defendant contends that it gave “new value” after the security interest was perfected. Section 547(a)(2) of the Bankruptcy Code defines “new value” as follows: (a) In this section— (2) “new value” means money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation; 11 U.S.C.A. § 547(a)(2) (West Supp.1991). Section 547(c)(4) of the Bankruptcy Code provides, in part: (c) The trustee may not avoid under this section a transfer— (4) to or for the benefit of a creditor, to the extent that, after such transfer, such creditor gave new value to or for the benefit of the debtor— (A) not secured by an otherwise unavoidable security interest; and (B) on account of which new value the debtor did not make an otherwise unavoidable transfer to of for the benefit of such creditor; 11 U.S.C.A. § 547(c)(4) (West 1979). Defendant has the burden of proving the nonavoidability of a transfer under section 547(c). 11 U.S.C.A. § 547(g) (West Supp. 1991). Section 547(c)(4) allows a creditor to retain an otherwise avoidable transfer to the extent that the creditor extended new value to the debtor after the preferential transfer. Tidwell v. Atlanta Gas Light Co. (In re Georgia Steel, Inc.), 38 B.R. 829, 837 (Bankr.M.D.Ga.1984). In Charisma Investment Co., N.V. v. Airport Systems, Inc. (In re Jet Florida System, Inc.), the Eleventh Circuit Court of Appeals considered the “subsequent advance” exception of section 547(c)(4). The circuit court stated: A subsequent advance is excepted because it is reasoned that a creditor who contributes new value in return for payments from the incipient bankrupt, should not later be deemed to have depleted the bankruptcy estate to the disadvantage of other creditors.... [Section 547(c)(4) ] has generally been read to require: (1) that the creditor must" }, { "docid": "7517628", "title": "", "text": "must receive “new value” defined by § 547(a)(2) as follows: (a) In this section— (2) “new value” means money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debt- or or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation. 11 U.S.C. § 547(a)(2). New value given after a preferential transfer helps the defendant only if it is not secured by an unavoidable security interest. 11 U.S.C. § 547(c)(4)(A). See In re Micro Innovations Corp., 185 F.3d at 334-35. This makes sense because the debtor is not enhanced if the new value given after the preferential transfer is subject to liens and would not balance the loss caused by the preferential transfer. Also, the new value must not have been paid for by the debtor with a transfer that cannot itself be avoided. 11 U.S.C. § 547(c)(4)(B). In other words, the new value must remain an enhancement of the debtor notwithstanding transfers (typically payments) to the creditor by the debtor after the new value was given. A payment by the debtor to the creditor after the creditor gave new value does not unravel the defense if the payment can itself be recovered as an avoidable transfer. (Docket Entry No. 1, Part 24, Memorandum at 12-13.) As the Bankruptcy Court noted, the policies behind § 547(c)(4) are to encourage the creditor to continue to do business with the troubled debtor and to insure that the creditor who contributes new value to the debtor in return for pre-petition payments is not later deemed to have depleted the bankruptcy estate to the disadvantage of other creditors. (Id.) The Bankruptcy Court did not accept the trustee’s position that the post-petition payments made by the debtor-in-possession to Proficient under the Critical Vendor Order were “otherwise unavoidable” transfers that could be used to offset the pre-petition “new value” given by Proficient. The Bankruptcy Court reasoned that the preference window of" }, { "docid": "4098262", "title": "", "text": "made the well had no monetary value and, consequently, no “new value” was given, as defined in § 547(a)(2). Milchem argues that forbearance from asserting its lien is sufficient “new value” to bring it within the § 547(c)(1) exception or, alternatively, § 547(c)(6). In addition, Mil-chem argues that its lien is unavoidable under § 547(c)(6). ISSUES I. Whether forbearance from asserting a statutory lien constitutes new value under § 547(a)(2). II. Whether the payment from debtor to Milchem may be avoided under § 547(c)(6). DISCUSSION I. 11 U.S.C. § 547(a)(2) provides: “New value” means money or money’s worth in goods, services or new credit or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation; .... Several courts in applying § 547(a)(2) have concluded that foregoing the right to per- feet a lien is not the exchanging of new value within the meaning of the statute. In re Matter of Georgia Steel, Inc., 56 B.R. 509, 522 (Bankr.M.D.Ga.1985); In re Cimarron Oil Co., Inc., 71 B.R. 1005, 1009 (N.D.Tex.1987). In each of these cases, the courts determined that the waiver of an inchoate lien right does not fit within the definition of new value, as intended by Congress. As one court noted: Congress could have allowed courts to expand upon the doctrine of new value by legislating that new value includes certain transactions. Instead, Congress stated what new value means, which should retard case law expansion. Id. Citing Collier on Bankruptcy, Para. 101.00(2), 15th Ed.1986. Moreover, in the case currently before the Court, debtor contends that the lien rights of Milchem had no value because the well and underlying lease were valueless. The instant dispute is similar to the circumstances presented in In re George Rodman, Inc., 39 B.R. 855 (Bankr.W.D.Okla.1984), rev’d. 792 F.2d 125 (10th Cir.1986). In Rodman, during the preference period, debtor paid $238,000 to one of its suppliers in exchange for" }, { "docid": "13933633", "title": "", "text": "are met here. Not all transfers by a debtor within 90 days of a bankruptcy petition are deemed harmful to the debtor’s estate. 11 U.S.C. § 547(c) provides a list of exceptions to the trustee’s avoidance power. The provision relied on by appellant is contained in § 547(c)(1) and excludes from the preference definition those transfers that are intended to be “a contemporaneous exchange for new value given to the debtor,” and which, in fact, constitute a “substantially contemporaneous exchange.” “New value” is defined in § 547(a)(2) to include: money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation. The phrase “release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law” is the portion of the definition that is relevant to this case. Appellant asserts that the release of the lien on the Stidham Well comes within this portion of the definition of “new value.” Appellant considers itself to be a “transferee” of property because of its release of the lien. The bankruptcy court ruled that the definition requires “that there be a quid pro quo value exchange between the debtor and transferee.” 39 B.R. at 857. It looked to the well’s value at the time of the adversary proceeding, found that it was worthless, and concluded that there was no quid pro quo exchange. The court stated that “[a] valid but valueless transfer falls outside the definition of ‘new value’....” Id. We are satisfied that the debtor’s payment to appellant and appellant’s simultaneous release of the lien on the Stidham Well, which occurred within the 90 day preference period, represents a contemporaneous exchange for new value. There was a release by a transferee (appellant) of property (the lien) previously transferred to such" }, { "docid": "2598978", "title": "", "text": "check agreement between a debtor-subcontractor, a supplier, and a general contractor when coupled with the general contractor’s independent obligation regarding satisfaction in lien rights, would not constitute preferential transfers because “the subsequent check payments were not payments which had the effect of depleting the assets of the Bankrupt to the detriment of the Bankrupt’s other creditors.” 406 F.Supp. at 212. Mullins v. Noland Co. was decided under the Bankruptcy Act of 1898, and the Court did not have to consider the new Bankruptcy Code’s definition of “new value” contained in § 547(a). Section 547(a)(2) provides that ‘new value’ means money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation. The issue of whether waiver of an inchoate lien right constitutes “new value” within the meaning of § 547 was addressed in the case of Tidwell v. Bethlehem Steel Corp. (In re Georgia Steel, Inc.), 56 B.R. 509 (Bankr.M.D.Ga.1985). After considering the language used by Congress in its definition of “new value” quoted above, the Court found that a waiver of inchoate lien rights does not come under the definition contained in § 547(a)(2). It went on to discuss the ramifications of its decision. The Court recognizes the impact and the hardship that this decision may have on the construction industry in Georgia. See Ballard v. Grubbs (In re Grubbs), 9 B.R. 499, 501 (M.D.Ga.1981). From a practical standpoint, even when a materi-alman receives full payment from a contractor, the materialman could be forced to file a claim of a materialman’s lien within the ninety-day state statutory time limit or lose the protection of the lien laws in the event of a subsequent bankruptcy filing by the contractor. Despite this consequence, the function of this Court is to interpret the laws enacted by Congress. Congress has determined the order and priorities in the distribution" }, { "docid": "2598977", "title": "", "text": "excepts from the trustee’s avoiding powers of preferential transfers a transfer “to the extent that such transfer was — (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debt- or; and (B) in fact a substantially contemporaneous exchange.” (emphasis added). Defendant argues that “new value” was given to the Debtor in exchange for the joint check agreement in the form of forebearance of Defendant “in filing a lien in the amount of $2,707.15 against the ‘Pizza House’ project and in the amount of $646.21 against the ‘Technology Center’ project and forebearance of filing suit against debtor for the full amount of the debtor’s indebtedness_” Defendant’s Response to Plaintiff’s Motion for Summary Judgment at 1. In support of its contention that forebearance constitutes “new value” within the meaning of § 547, the Defendant relies upon the case of Mullins v. Noland Co., 406 F.Supp. 206 (N.D.Ga.1975) in which the Court held that, under similar facts, a joint check agreement between a debtor-subcontractor, a supplier, and a general contractor when coupled with the general contractor’s independent obligation regarding satisfaction in lien rights, would not constitute preferential transfers because “the subsequent check payments were not payments which had the effect of depleting the assets of the Bankrupt to the detriment of the Bankrupt’s other creditors.” 406 F.Supp. at 212. Mullins v. Noland Co. was decided under the Bankruptcy Act of 1898, and the Court did not have to consider the new Bankruptcy Code’s definition of “new value” contained in § 547(a). Section 547(a)(2) provides that ‘new value’ means money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation. The issue of whether waiver of an inchoate lien right constitutes “new value” within the meaning of § 547" }, { "docid": "6624046", "title": "", "text": "value given to the debtor; and [it] in fact [was] a substantially contemporaneous exchange.” 11 U.S.C.A. § 547(c)(1). The Bankruptcy Code defines “new value” to mean money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property. 11 U.S.C.A. § 547(a)(2) (West 2004). “New value,” however, “does not include an obligation substituted for an existing obligation.” Id. B. United argues that it established a § 547(c)(1) defense under the “indirect transfer theory.” In this regard, United first contends that had the Debtor not made the transfers, United nonetheless could have obtained full payment by enforcing its bond rights. United maintains that had the Surety paid such a claim under the bond, the Surety would have automatically received an equitable lien by subrogation against the funds the general contractor owed the Debtor. Relying on O’Rourke v. Seaboard Surety Co. (In re E.R. Fegert, Inc.), 887 F.2d 955 (9th Cir. 1989) (“Fegert”), United argues that the money that the Debtor was eventually paid (that the Surety could have obtained directly from the general contractor had United enforced its bond rights) constituted new value to the Debtor for purposes of § 547(c)(1). In Fegert, a general contractor (“the debtor”) defaulted on its payments to two subcontractors. See Fegert, 887 F.2d at 956. The subcontractors, in turn, sued the debtor and the surety that had issued a payment and performance bond on the debtor’s behalf. See Fegert, 887 F.2d at 956. Prior to trial, the debtor and the surety made payments to the subcontractors that, when combined, satisfied the debt and resulted in dismissal of the suit. See id. Within 90 days of these payments, the debtor filed a Chapter 11 bankruptcy petition that was later converted to a Chapter 7 proceeding. See id. In a subsequent adversary proceeding, the bankruptcy trustee sought to avoid the payments from the debtor as preferential. See id. The bankruptcy court granted summary" }, { "docid": "6241327", "title": "", "text": "could value a potential use of liquidation proceeds based only on a creditor’s vague hopes or possibilities. For example, a creditor could use liquidation proceeds to purchase a risk free security, i.e., government issued bonds. Considering the interest a creditor may earn from any post-liquidation investment, however, would circumvent the purpose behind § 547(b) because eventually all liquidation proceeds will increase in value so as to be equal to the amount transferred. Yet, this is precisely what Marad is asking me to do. I will not make such a determination. Thus, the Bankruptcy Court was correct in considering only what the hypothetical liquidation proceeding would have yielded and not what potential gain Marad may have extracted from the Vessels. The undisputed fact is that Marad was undersecured. Because of the Assignment, Marad received a security interest in the charter hire in addition to what it was entitled to in the hypothetical Chapter 7 liquidation. Consequently, Marad would have received less from a Chapter 7 liquidation proceeding than it did from the transfer. Therefore, The Bankruptcy Court correctly ruled the Assignment satisfies the fifth element of the § 547(b) requirement. (3) Exceptions to Voidable Preferences Marad argues that both the “new value” and/or the “improvement in position” exceptions apply to these facts so as to make the Assignment non-voidable. The Bankruptcy Court ruled that neither exception applied to these facts, and for the following reasons, this ruling is affirmed. (a) New Value Section 547(e)(1) of the Bankruptcy Code protects a transfer from avoidance if the transfer was “intended by the debtor and creditor ... to be a contemporaneous exchange for new value given to the debtor” and was “in fact a substantially contemporaneous exchange.” 11 U.S.C. § 547(c)(1). The Code, in turn, defines “new value” as “money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including process of such property, but does not include an obligation substituted for an" }, { "docid": "1078152", "title": "", "text": "20, 1987 was not determined until October, 1987, that payments due under the lease could not be computed until after that date, and that the rent for September, October and November, was not billed by Lincoln Liberty until November 17, 1987. Lincoln Liberty reasons that the payments it received in December, 1987, although credited to prior months, was not on account of an antecedent debt because no debt could be due and owing to Lincoln Liberty until the lease commencement date was determined, payments were calculated under the lease, and a bill was sent to Allegheny. Lincoln Liberty concludes that the payments it received were a contemporaneous exchange for occupancy and other rights. The bankruptcy court properly rejected this analysis. The court found that Allegheny was obligated to pay the rent prior to the time the payments were made: the amended lease so provided. A debt is incurred when a debtor first becomes legally obligated to pay the creditor. The fact that the amounts of the payment had not been calculated when the obligation was incurred does not negate the obligation to pay. Lincoln Liberty also argues that the payments fall under a statutory exception to preferential transfers. Section 547(c)(1) provides that a trustee (or debtor-in-possession) may not avoid a transfer intended to be “a contemporaneous exchange for new value” and which is in fact a “substantially contemporaneous exchange.” “New value” is defined as follows: “New value” means money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void or voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation. 11 U.S.C. § 547(a)(2). Lincoln Liberty argues that it extended new value to Allegheny. We agree with the bankruptcy court, however, that forbearance by a lessor from exercising its rights under a lease does not constitute new value, particularly when the debtor is not using the property. See In re Jet Florida System, Inc., 73" }, { "docid": "4098261", "title": "", "text": "MEMORANDUM DECISION LOUISE DeCARL MALUGEN, Bankruptcy Judge. Milton Fredman, on behalf of the Nucorp Estates, has brought this action, seeking to recover a preference under 11 U.S.C. § 547 in the amount of $101,681.57. Milchem resists the action, arguing that certain exceptions under § 547(c) apply. The facts are not greatly in dispute. In December 1981, debtor became the operator of an oil well (Martin Praus Well No. 1) located in North Dakota. Debtor employed Milchem to provide materials and services to the well, commencing December 12, 1981, and ending February 24, 1982. The Martin Praus well was plugged and abandoned on February 23, 1982. Debtor and its subsidiaries filed for protection under Chapter 11 on July 27, 1982. During the 90 days prior to filing for relief, debtor paid $101,681.57 to Milchem in three payments. At the time the payments were made, Milchem had taken no action to perfect liens on the well. Thus, Milchem did not release any existing lien upon accepting the payments. Fredman argues that at the time the payment was made the well had no monetary value and, consequently, no “new value” was given, as defined in § 547(a)(2). Milchem argues that forbearance from asserting its lien is sufficient “new value” to bring it within the § 547(c)(1) exception or, alternatively, § 547(c)(6). In addition, Mil-chem argues that its lien is unavoidable under § 547(c)(6). ISSUES I. Whether forbearance from asserting a statutory lien constitutes new value under § 547(a)(2). II. Whether the payment from debtor to Milchem may be avoided under § 547(c)(6). DISCUSSION I. 11 U.S.C. § 547(a)(2) provides: “New value” means money or money’s worth in goods, services or new credit or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation; .... Several courts in applying § 547(a)(2) have concluded that foregoing the right to per- feet a lien is not the exchanging of new" }, { "docid": "1145999", "title": "", "text": "11 U.S.C. § 547(b). DISCUSSION Section 547 of the Bankruptcy Code sets forth avoidance of preferential transfers. 11 U.S.C. § 547. Subsection 547(b) defines preferences while subsection 547(c) excepts certain of these transfers from avoidance. Two of these exceptions are at issue. Defendant contends that receipt of payment in conjunction with its waiver of lien rights falls within Section 547(c)(1) as a contemporaneous exchange for new value and is also within the Section 547(c)(6) exception for perfection of non-avoidable statutory liens. Policy objectives underlying the preference provisions are to assure equality of distribution among estate creditors and to prevent dismemberment of the estate by a race to the courthouse. H.R. Rep. No. 95-595, 95th Cong., 1st Sess. 177-78 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5787, 6137-6139. Determining applicability of exceptions to preference must be accorded these same considerations. Waldschmidt v. Mid-State Homes, Inc. (In re Pitman), 843 F.2d 235 (6th Cir.1988); Charisma Investment Co. v. Airport Systems, Inc. (In re Jet Florida Systems, Inc.), 841 F.2d 1082 (11th Cir.1988). I. SECTION 547(c)(1) Section 547(c)(1) excepts from avoidance, a transfer— “(1) to the extent that such transfer was (A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and (B) in fact a substantially contemporaneous exchange ...” 11 U.S.C. § 547(c)(1) Defendant’s waiver of lien rights in return for payment from the Debtor was intended to be and was a contemporaneous exchange. The issue is whether this waiver of rights with respect to a third-party’s property constitutes “new value given to the debtor” within the meaning of the exception. “New value— means money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation ...” 11 U.S.C. § 547(a)(2) There is a definitive split in case" }, { "docid": "21630813", "title": "", "text": "to the Debtor as required by § 547(c)(1)(A). All the value given by All-Tech to the Debtor had been furnished previously while the painting labor and materials were supplied from July through September 2001. The punch list work was completed in November or December 2001, and the Debtor did not pay until December 31, 2001. The new value defense protects transactions that do not diminish the bankruptcy estate. Cocolat, 176 B.R. at 548. A transfer does not dimmish the estate if the debtor receives some new value on account of and equal to the amount of the transfer. The theory behind § 547(c)(1) is that, to the extent new value is offered, the preference is repaid to the estate. In re Prescott, 805 F.2d 719, 727 (7th Cir.1986). The critical inquiry in determining whether there has been a contemporaneous exchange for new value is whether the parties intended such an exchange. Id. Section 547(a)(2) states that “new value” means: “money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation.” 11 U.S.C. § 547(a)(2). “The contemporaneous exchange exception exists to protect ‘transfer[s] that [are] not really on account of an antecedent debt.’ ” Energy Coop., Inc. v. SOCAP Int’l, Ltd. (In re Energy Coop.), 832 F.2d 997, 1003 (7th Cir.1987) (citation omitted). If a release resulting from settling a claim constituted new value and brought the payment within the exception, creditors would rush to settle for cash at the first indication of a debtor’s financial trouble, enabling some creditors to receive more than they would in bankruptcy to the detriment of other creditors. Id. This was not Congress’ intent with respect to the contemporaneous exchange exception. Id. Further, a release is not likely of value to other creditors. Id. at 1004. Here, All-Tech argues that the lien waiver was of value to the Debtor" }, { "docid": "13933632", "title": "", "text": "holding on the first issue, we do not reach this second issue. Legal Discussion In general, a “preference” exists when a debtor makes payment or other transfer to a certain creditor or creditors, and not to others. 4 L. King, Collier on Bankruptcy § 547.01 (15th ed. 1985). Such favoritism is prohibited by 11 U.S.C. § 547(b) when a debtor is in bankruptcy. In order to constitute a preference, the following elements must be satisfied: (1) a transfer of the debtor’s property to a creditor, (2) for an antecedent debt owed by the debtor, (3) made while the debtor was insolvent, (4) made within 90 days before the date of filing the petition in bankruptcy, and (5) which enables the creditor to receive more than it would have received if the case were a Chapter 7 case (liquidation), if the transfer had not been made, and if the creditor received payment to the extent permitted by Title 11. The parties do not dispute that the five statutory requirements for an avoidable transfer under § 547(b) are met here. Not all transfers by a debtor within 90 days of a bankruptcy petition are deemed harmful to the debtor’s estate. 11 U.S.C. § 547(c) provides a list of exceptions to the trustee’s avoidance power. The provision relied on by appellant is contained in § 547(c)(1) and excludes from the preference definition those transfers that are intended to be “a contemporaneous exchange for new value given to the debtor,” and which, in fact, constitute a “substantially contemporaneous exchange.” “New value” is defined in § 547(a)(2) to include: money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation. The phrase “release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under" }, { "docid": "142221", "title": "", "text": "right under Georgia law to file a materialman’s lien. In support of its argument, Defendant relies upon Mullins v. Noland Co., 406 F.Supp. 206 (N.D.Ga.1975), and other cases in which courts have held that a waiver of an inchoate lien in exchange for payment does not constitute a preferential payment. In Mullins v. Noland Co., the general contractor issued checks jointly payable to a debtor-subcontractor and a materialman within the preference period. The materi-alman had contacted the general contractor directly and offered to waive its inchoate lien rights under Georgia law for payment by joint check from the general contractor. The existence of this inchoate lien right, coupled with the general contractor’s obligation to ensure that all materialmen were paid, led the district court to conclude “that the subsequent payments from [the general contractor] to [the materialman] by means of the joint checks in issue did not constitute preferential payments.... ” Mullins, 406 F.Supp. at 210 (emphasis added). The Court notes that the Mullins case is factually distinguishable from this adversary proceeding. In this adversary proceeding, Debtor was the contractor for the Brown & Williamson job and was not a subcontractor. Also, there was no agreement for payment by joint checks. The district court in Mullins did not discuss the issue of new value under section 547(c)(1). The court held only that the payments did not constitute a preferential transfer under the facts in that case. The Court, having found no cases dealing directly with the issue of what constitutes new value, must determine whether Defendant’s waiver of its inchoate lien rights in exchange for payment from Debt- or constitutes “new value.” For the purposes of section 547, the code defines “new value” in section 547(a)(2). This section provides: “[N]ew value” means money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, but does not include an obligation substituted for an existing obligation; ... 11 U.S.C.A. § 547(a)(2) (West" }, { "docid": "3103304", "title": "", "text": "which was based upon that judgment.”); Rubin Bros. Footwear, Inc. v. Chemical Bank (In re Rubin Bros. Footwear, Inc.), 73 B.R. 346, 355 (S.D.N.Y.1987) (concluding that if the actual transaction which creates the creditor’s security interest is an avoidable preference, “it follows that all the subsequent payments were also voidable preferences”). Since the administration of these estates will likely generate only a small return to unsecured creditors, the $325,000 transfer enabled DMAC to receive a greater return than if the transfer had not been made and if these estates had been liquidated under Chapter 7. The Trustee has successfully established the fifth element of a preference, and he has carried his burden of proving that the transfer to DMAC satisfies all of the requirements of § 547(b). IV. DMAC’s New Value Defense A transfer which technically qualifies as a preference may nonetheless be shielded from avoidance if the creditor provides “new value” to the debtor. Section 547(c)(1)(A) provides that a trustee cannot avoid a transfer “to the extent that such transfer was intended by the debtor and the creditor ... to be a contemporaneous exchange for new value given to the debtor.” 11 U.S.C. § 547(c)(1)(A). According to the Bankruptcy Code, “new value” means money or money’s worth in goods, services, or new credit, or release by a transferee of property previously transferred to such transferee in a transaction that is neither void nor voidable by the debtor or the trustee under any applicable law, including proceeds of such property, but does not include an obligation substituted for an existing obligation. 11 U.S.C. § 547(a)(2). In applying this definition of new value, the Eleventh Circuit has recognized that courts have consistently looked to the principal policy objectives underlying the preference provisions of the Bankruptcy Code. The first objective is to encourage creditors to continue extending credit to financially troubled entities while discouraging a panic-stricken race to the courthouse. Another related objective of this section is to promote equality of treatment among creditors. The subsequent advance exception promotes these general policy objectives “because its utility is limited to the extent to" } ]

[ { "docid": "22743144", "title": "", "text": "decided by the Board before the passage of the Act of 1926. That presents what involves a troublesome exception or duplication in the procedure. This occurs because of the last excepting clause of § 2S3 (b) of the amending Act of 1926, which is as follows: “ If before the enactment of this Act any person has appealed to the Board of Tax Appeals under subdivision (a) of Section- 274 of the Revenue Act of 1924 . . . and the appeal is pending before the Board at the time of the enactment of this Act, the Board shall have jurisdiction of the appeal. In all such cases the powers, duties, rights, and privileges of the Commissioner and of the person who has brought the appeal, and the jurisdiction of the Board and of the courts, shall be determined, and the computation of the tax shall be made in the same manner as provided in subdivision (a) of this section, except as provided in subdivision (j) of this section and except that the person liable for the tax shall not be subject to the provisions of subdivision (d) of Section 284.” The provisions of § 284 (d) are those which deny to the taxpayer the power to bring any suit for'the recovery of the tax after he has adopted the procedure of appealing to the Board of Tax Appeals or to the Circuit Court of Appeals. By this last exception in § 283 (b), there seems still open to the taxpayers who have filed a petition under the law of 1924 and have not had a decision by the Board before the enactment of the law of 1926, the right to pay the tax and sue for a refund i:._ the proper District Court (Par. 20 of § 24 of the Judicial Code, as amended by § 1310 (c), c. 136, 42 Stat. 311, U. S. Code, Title 28, § 41). Emery v. United States, 27 F. (2d) 992, and Old Colony R. R. v. United States, 27 F. (2d) 994, hold that the petitioner still retains this earlier remedy." } ]

[ { "docid": "6573172", "title": "", "text": "decision of the Board of Tax Appeals estop the government from maintaining the present suit? When the Board of Tax Appeals was created by section 900 of the Revenue Act of 1924 (43 Stat. 336), no right of review of its decision was given by that section. But by sections 274(b) and 279(b) of that act (43 Stat. 297, 300), the right to bring an independent action was given to the Commissioner and to the taxpayer following a decision of the Board of Tax Appeals. The procedure is aptly described by the Circuit Court of Appeals of the First Circuit in Blair v. Curran, 24 F.(2d) 390, 392, in the following language: “The hearing before the Board was at that time little more than a preliminary skirmish, a run for luck. For either party, if dissatisfied with the decision, could bring a court action and try the matter de novo (Revenue Act 1924, §§ 274(b), 900(g), being 26 U.S. C.A. [§ 1049 note], § 1218; Comp.St. § 6371-5/6b(g), the Board’s findings of fact being prima facie evidence against the losing party. Section 900(g).” The Board of Tax Appeals was reorganized by the Revenue Act of 1926 and its decisions made reviewable by the Circuit Court of Appeals (sections 1000-1002, 44 Stat. 103). Certain appeals from the Commissioner to the Board of Tax Appeals had been taken under the 1924 Revenue Act before the 1926 Revenue Act was passed. In some of these cases the matter had been tried by the Board of Tax Appeals when no right of review existed, but decided after a right of review by the Circuit Court of Appeals had been created. The case at bar fell into the latter class. It was to meet such a situation that section 283(j) was enacted by Congress. The right to resort to the District Court by independent suit still existed, however. Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 49 S.Ct. 499, 73 L.Ed. 918; see Emery v. United States (D.C.) 27 F.(2d) 992; Old Colony R. Co. v. United States (D.C.) 27 F.(2d) 994. Under the" }, { "docid": "5887360", "title": "", "text": "the other side will suffer no unfair prejudice if they are set aside. [Citations.]” Dalton v. Bowers, 2 Cir., 53 F.2d 373, 374. In Botany Worsted Mills v. United States, 278 U.S. 282, 49 S.Ct. 129, 132, 73 L.Ed. 379, is found a discussion of this principle as applied to a tax case. There, after a thorough discussion, the court said: “We therefore conclude that the Mills was not precluded by the settlement from recovering any portion of the tax to which it may otherwise have been entitled.” In the case of George S. Colton Elastic Web Company v. White, D.C., 16 F.Supp. 726, will also be found a discussion of this question, and the holding in that case was in accord with the Botany Mills Case, supra. The case of Backus v. United States, Ct.Cl., 59 F.2d 242, certiorari denied 288 U. S. 610, 53 S.Ct. 402, 77 L.Ed. 984, is relied upon by the defendant to support his contention, but an examination of that case shows that it is distinguishable from the case here. This same distinction was pointed out in the Colton Elastic Web Company Case, supra. In the Backus Case a compromise was involved and the consent of the Secretary of the Treasury to the set tlement was expressly received. The other cases relied upon by the defendant were either cases of compromise where the party entering into the stipulation received some benefit or cases where the relief from the stipulation would prejudice the opposite party. In the case of White Oak Coal Company v. United States, 4 Cir., 15 F.2d 474, also relied upon by the defendant, the coal company had the right to pursue one of two courses and, having decided which course it would pursue, this court held that it was bound by that decision. This case is not in point here. The government collected taxes which it had no right to collect. The plaintiff, under a mistake of law, believing the government had a right to collect these taxes, entered into the stipulation which was the basis of the order entered by" }, { "docid": "23509569", "title": "", "text": "said by the Supreme Court in Botany Worsted Mills v. United States, 278 U.S. 282, 288, 49 S.Ct. 129, 131, 73 L.Ed. 379: “Here the attempted settlement was made by subordinate officials in the Bureau of Internal Revenue. And although it may have been ratified by the Commissioner in making the additional assessment based thereon, it does not appear that it was assented to by the Secretary, or that the opinion of the Solicitor was filed in. the Commissioner’s office. “We think that Congress intended by the statute to prescribe the exclusive method by which tax cases could be compromised, requiring therefor the concurrence of the Commissioner and the Secretary, and prescribing the formality with which, as a matter of public concern, it should be attested in the files of the Commissioner’s office; and did not intend to intrust the final settlement of such matters to the informal action of subordinate officials in the Bureau. When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode. Raleigh, etc., R. Co. v. Reid, 13 Wall. 269, 270, 20 L.Ed. 570; Scott v. Ford, 52 Or. 288, 296, 97 P. 99.” Directly in point here is what was said by Judge Augustus N. Hand speaking for the Court of Appeals of the Second Circuit in United States v. Lustig, 163 F.2d 85, 89, certiorari denied 332 U.S. 775, 68 S.Ct. 88, 92 L.Ed. 360, a case involving prosecution for an income tax violation, in which defendants contended that prosecution was barred under this statute because of disclosures made to a revenue agent. Judge Hand said: “The compromise statute affords no shield to one who has violated the tax laws unless there has actually been a compromise. See Botany Worsted Mills v. United States, 278 U.S. 282, 49 S.Ct. 129, 73 L.Ed. 379. It is not even claimed here that there was more than an offer to make a compromise. None of the formalities prescribed by the statute and treated by the Supreme Court as necessary to effect a compromise were observed. Botany" }, { "docid": "1375850", "title": "", "text": "was at that time little more than a preliminary skirmish.” Blair v. Curran (C. C. A.) 24 F.(2d) 390, 392. Under the act of 1926, except in few instances, and mainly where proceedings were already begun before the Board under the 1924 act, the jurisdiction of the Board, and of this court on appeal was made exclusive. Ohio Steel Foundry Co. v. United States (Ct. Cl.) 38 F.(2d) 144. As the court said in the last case cited, page 148 of 38 F.(2d): “We think section 284 (d) of the Revenue Act of 1926 (26 USCA § 1065 (d) contemplated that no suit should be instituted by a taxpayer for the recovery of a tax after the Commissioner has determined and notified such taxpayer of a deficiency in respect of the tax for such taxable year, in the event of institution by the taxpayer of a proceeding before the Board of Tax Appeals for the re-determination of such a deficiency. * * * “Had the Commissioner determined a deficiency in respect of the tax of this plaintiff for the year 1918 and mailed to it a notice of such determination, and the plaintiff herein bad instituted a proceeding before the Board of Tax Appeals prior to the bringing of this suit, we think this suit would, under such circumstances, be premature and this court would be without jurisdiction to entertain it. Under such circumstances it would be incumbent upon the taxpayer to raise all questions relating to his tax liability for the taxable year, in respect of which the Commissioner bad determined the deficiency, before the Board of Tax Appeals and to pursue bis remedy with respect both to the deficiency and to any claimed overpayment to a conclusion under the provisions of the Revenue Act of 1926, either by accepting the decision of the Board, which has become final by the expiration of the time for filing of a petition for review of such decision, or by prosecuting such review to a conclusion as provided by law.” But even if the District Court bad jurisdiction, we think that its" }, { "docid": "4172932", "title": "", "text": "contains merit and we shall discuss them separately. The court below held that the taxpayer should not, in equity and good conscience, be permitted to assert its present claims for refund. Taxpayer, however, contends that it has the statutory right, by virtue of section 1106 of the Revenue Act of 1926, 26-U.S.C.A. Int.Rev.Acts, page 318, to maintain this action and that it is not now es-topped from correcting any errors in the-deficiency notice. The applicable section, § 1106, needs-little or no explanation and it is true that a closing agreement was not issued pursuant to its terms. Nor are we unmindful of the fact that this is the exclusive method by which a tax case may be compromised. Botany Worsted Mills v. United States, 278 U.S. 282, 49 S.Ct. 129, 73 L.Ed. 379; Brast v. Winding Gulf Colliery Co., 4 Cir., 1938, 94 F.2d 179. Yet it seems quite obvious-why the taxpayer did not seek a closing agreement in the light of its surreptitious, suppression of Volume 3 of the American Appraisal Company’s report. The existence of this vital and essential source of relevant data was not only concealed from the government in connection with the refund claims filed in 1931, but knowledge by the government of its existence was not even acquired until after the refund claims had been rejected and after this action had been instituted. The effect of this wrongful and fraudulent action by the taxpayer was to induce the Commissioner of Internal Revenue to take steps prejudicial to the government by erroneously reducing the proposed deficiency of $789,022.28 to $247,746.71. Accordingly, in view of the clandestine conduct of the taxpayer, we deem it immaterial that no statutory closing agreement was executed; so that, even if the taxpayer had overpaid its taxes, its fraud would preclude a recovery at this time. See Standard Oil Co. of Kansas v. United States, C.C., 1942, 47 F.Supp. 120; 28 U.S.C.A. § 279. Taxpayer’s second point is that it makes no claim to a double deduction as found by the trial court and that it is not estopped from now asserting" }, { "docid": "11024288", "title": "", "text": "an implication that it is still open to the taxpayer to sue for a refund based upon matters which could not be litigated and determined in a prior proceeding before the Tax Court. We think, however, that such an interpretation is negatived by the flat statement in the second quoted paragraph to the effect that, if the taxpayer elects “to file a petition with the Board his entire tax liability for the year in question (except in case of fraud) is finally and completely settled by the decision of the Board when it has become final.” When the committee goes on to say that it is the purpose of the bill “that all questions arising prior to the time the decision of the Board has been rendered as to the right of the Commissioner to assess and collect the tax * * * shall be determined by the Board,” it apparently has reference to the express exceptions in the section, some of which do relate to events taking place after the decision of the Board has been rendered; for instance, where a deficiency found by the Tax Court has been wrongfully collected after the expiration of the statutory period of limitations upon the beginning of distraint, or where the Commissioner has wrongfully collected an amount in excess of that computed in accordance with the decision of the Tax Court. The taxpayer has cited no case, and we have found none, quite on all fours with the facts of the case at bar. However, many courts have attributed to Section 319(a) (and to its counterpart, Section 284(d), 26 U-.S.C.A. Int.Rev.Acts, page 220 relating to income taxes) a finality which cannot be explained merely on gen-' eral principles of res judicata. Merrill v. United States, D.C.N.Y., 1944, 55 F. Supp. 674; Warren Mfg. Co. v. Tait, D. C. Md.1932, 60 F.2d 982; James v. United States, 1930, 38 F.2d 140, 69 Ct.Cl. 215, certiorari denied 282 U.S. 856, 51 S.Ct. 32, 75 L.Ed. 758; see Bindley v. Heiner, D.C. Pa., 1930, 38 F.2d 489. It is to be noted that, under Section" }, { "docid": "11977031", "title": "", "text": "255, the Supreme Court held it was not to be so applied. Congress has expressly provided, however, in the 1926 Act that the extended period is applicable to assessments “whether before or after the enactment of this Act.” See Pacific Coast Steel Co. v. McLaughlin, 9 Cir., 61 F.2d 73, 78, affirmed on other grounds 288 U.S. 426, 53 S.Ct. 422, 77 L.Ed. 873. Under § 274 of the 1924 Act, 43 Stat. 297, 26 'U.S.C.A. Int.Rev.Acts, page 56, \"a taxpayer receiving notice from the Commissioner of a deficiency in respect to a tax levied thereunder was given a 60-day period in which to appeal to the Board of Tax Appeals. If an appeal was taken, assessment was delayed until the Board rendered its decision. Under § 277(b) (2) ■the limitation period within which an assessment might be made was suspended by an appeal to the Board from the date of notice of the right to appeal until the Board rendered a final decision in the matter. Section 278(d) provided that collection of the tax might be made within six years after assessment. Thus, in an appeal under these provisions the running of the limitation period was suspended from the date of notice of the right to appeal until the Board rendered its final decision. Cf. Price & Lucas Cider Co. v. Lucas, 6 Cir., 45 F.2d 1004; Globe Gazette Printing Co. v. United States, Ct.Cl., 13 F.Supp. 422, 424. Russell v. United States, 278 U.S. 181, 186, 49 S.Ct. 121, 73 L.Ed. 255; Brown & Sons Lumber Co. v. Burnet, 282 U.S. 283, 289, n. 7, 51 S.Ct. 140, 75 L.Ed. 343. Cf. R. H. Stearns & Co. v. United States, 291 U.S. 54, 61, 54 S.Ct. 325, 78 L.Ed. 647; Collins v. Woodworth, 6 Cir., 109 F.2d 628; Continental Products Co. v. Commissioner, 1 Cir., 66 F.2d 434, 435; Lattimore v. United States, Ct.Cl., 12 F. Supp. 895, 911. Section 283(f) of the Revenue Act of 1926, 44 Stat. 64, 26 U.S.C.A. Int.Rev. Acts, page 216, provides as follows: ‘‘If any deficiency in any income * * *" }, { "docid": "1375851", "title": "", "text": "this plaintiff for the year 1918 and mailed to it a notice of such determination, and the plaintiff herein bad instituted a proceeding before the Board of Tax Appeals prior to the bringing of this suit, we think this suit would, under such circumstances, be premature and this court would be without jurisdiction to entertain it. Under such circumstances it would be incumbent upon the taxpayer to raise all questions relating to his tax liability for the taxable year, in respect of which the Commissioner bad determined the deficiency, before the Board of Tax Appeals and to pursue bis remedy with respect both to the deficiency and to any claimed overpayment to a conclusion under the provisions of the Revenue Act of 1926, either by accepting the decision of the Board, which has become final by the expiration of the time for filing of a petition for review of such decision, or by prosecuting such review to a conclusion as provided by law.” But even if the District Court bad jurisdiction, we think that its judgment should be affirmed, whether or not section 278 (d) and (e) of the act of 1926 (26 USCA §§ 1061 note, 1062 note) controls. No claim is made in the appellant's declaration, or in the bearing on the merits, that the balance of the amount sued for, after deducting the amount of the disclaimer, was not a valid tax. The only claim made is that the collection was barred by the limitations fixed in sections 277 and 278 of the act of 1924, as interpreted in Russell v. United States, 278 U. S. 181, 49 S. Ct. 121, 73 L. Ed. 255, and that the period of collection was not extended by the waiver filed in November, 1926. The Supreme Court, however, in the case of Lewis et al. v. Reynolds, supra, held that, in a suit to recover a tax alleged to have been illegally collected after the period of limitation bad run, the taxpayer must show that no part of the tax was due; that such an action for a refund is" }, { "docid": "23509570", "title": "", "text": "mode. Raleigh, etc., R. Co. v. Reid, 13 Wall. 269, 270, 20 L.Ed. 570; Scott v. Ford, 52 Or. 288, 296, 97 P. 99.” Directly in point here is what was said by Judge Augustus N. Hand speaking for the Court of Appeals of the Second Circuit in United States v. Lustig, 163 F.2d 85, 89, certiorari denied 332 U.S. 775, 68 S.Ct. 88, 92 L.Ed. 360, a case involving prosecution for an income tax violation, in which defendants contended that prosecution was barred under this statute because of disclosures made to a revenue agent. Judge Hand said: “The compromise statute affords no shield to one who has violated the tax laws unless there has actually been a compromise. See Botany Worsted Mills v. United States, 278 U.S. 282, 49 S.Ct. 129, 73 L.Ed. 379. It is not even claimed here that there was more than an offer to make a compromise. None of the formalities prescribed by the statute and treated by the Supreme Court as necessary to effect a compromise were observed. Botany Worsted Mills v. United States, supra, 278 U.S. at pages 288-289, 49 S.Ct. 129, 73 L.Ed. 379. There was no issue of fact for court or jury as to whether a contract of compromise had been made. Accordingly there is no merit in the defense of immunity.” See also Cabin Creek Consol. Coal Co. v. United States, 4 Cir., 137 F.2d 948; Brast v. Winding Gulf Colliery Co., 4 Cir., 94 F.2d 179; and United States v. Goldberg, D.C., 123 F.Supp. 385, 387, modified on another point, 8 Cir., 225 F. 2d 180. Cf. Rau v. United States, 2 Cir., 260 F. 131 and Willingham v. United States, 5 Cir., 208 F. 137, decided before the decision by the Supreme Court of Botany Worsted Mills v. United States, supra. Appellant does not contend that there was compliance with this statute. His argument is that he was entitled to rely on statements made to him by the revenue agents with whom he was dealing. The answer is that the question on this phase of the case" }, { "docid": "4172931", "title": "", "text": "any event, taxpayer even if otherwise entitled thereto, is estopped to have restored to invested capital any amounts which it alleges to have expensed during the years 1909 through 1916, inclusive, because it had the benefit thereof as deductions from income in computing its federal tax liabilities for each of the years commencing in 1909, and the Commissioner and the United States at the time taxpayer filed its claims for refund in April, 1931, were barred by limitations from assessing or collecting additional taxes which would be due for those years if proper adjustments were made, as well as for the years 1917 to 1920, inclusive. 3. With respect to all items concerning which taxpayer would receive a double benefit by having its claims allowed, it in equity and good conscience, is not entitled thereto. 4. The taxes assessed against and paid by taxpayer involved herein, were lawfully assessed and collected. The taxpayer now raises seven specific points on this appeal wherein the lower court allegedly committed error. We believe that none of these contentions contains merit and we shall discuss them separately. The court below held that the taxpayer should not, in equity and good conscience, be permitted to assert its present claims for refund. Taxpayer, however, contends that it has the statutory right, by virtue of section 1106 of the Revenue Act of 1926, 26-U.S.C.A. Int.Rev.Acts, page 318, to maintain this action and that it is not now es-topped from correcting any errors in the-deficiency notice. The applicable section, § 1106, needs-little or no explanation and it is true that a closing agreement was not issued pursuant to its terms. Nor are we unmindful of the fact that this is the exclusive method by which a tax case may be compromised. Botany Worsted Mills v. United States, 278 U.S. 282, 49 S.Ct. 129, 73 L.Ed. 379; Brast v. Winding Gulf Colliery Co., 4 Cir., 1938, 94 F.2d 179. Yet it seems quite obvious-why the taxpayer did not seek a closing agreement in the light of its surreptitious, suppression of Volume 3 of the American Appraisal Company’s report. The" }, { "docid": "11961879", "title": "", "text": "of the company and 425 shares of its preferred stock on the New York Curb Exchange when it was loosely organized was not too meager to require submission to a jury of the question of value. In Penney & Long, Inc., v. Commissioner, 39 F.(2d) 849 (C. C. A. 4), the court reversed the action of the Board of Tax Appeals, basing its reversal upon the ground that the taxpayer sustained the burden before the Board of overturning the finding of the Commissioner by showing -that stock was sold in a comparatively large quantity at par, even though it was sold largely to friends and relatives of the incorporators of the petitioner company. These decisions in principle support the present holding. At the hearing before the Board of Tax Appeals the burden was on the taxpayer to prove that the value placed on this'stock by the Commissioner was incorrect. Botany Worsted Mills v. United States, 278 U. S. 282, 49 S. Ct. 129, 73 L. Ed. 379; Wickwire v. Reinecke, 275 U. S. 101, 48 S. Ct. 43, 72 L. Ed. 184; United States v. Anderson, 269 U. S. 422, 46 S. Ct. 131, 70 L. Ed. 347; United States v. Mitchell, 271 U. S. 9, 46 S. Ct. 418, 70 L. Ed. 799; Austin Co. v. Commissioner, 35 F.(2d) 910 (C. C. A. 6); Louisville Cooperage Co. v. Commissioner, 47 F.(2d) 599 (C. C. A. 6); Avery v. Commissioner, 22 F.(2d) 6, 55 A. L. R. 1277 (C. C. A. 5); Brown v. Commissioner, 22 F.(2d) 797 (C. C. A. 5); Bishoff v. Commissioner, 27 F.(2d) 91 (C. C. A. 3). Here the respondents did not sustain the burden. The orders and decisions of the Board of Tax Appeals are reversed, and the causes are remanded for further proceedings." }, { "docid": "11977032", "title": "", "text": "might be made within six years after assessment. Thus, in an appeal under these provisions the running of the limitation period was suspended from the date of notice of the right to appeal until the Board rendered its final decision. Cf. Price & Lucas Cider Co. v. Lucas, 6 Cir., 45 F.2d 1004; Globe Gazette Printing Co. v. United States, Ct.Cl., 13 F.Supp. 422, 424. Russell v. United States, 278 U.S. 181, 186, 49 S.Ct. 121, 73 L.Ed. 255; Brown & Sons Lumber Co. v. Burnet, 282 U.S. 283, 289, n. 7, 51 S.Ct. 140, 75 L.Ed. 343. Cf. R. H. Stearns & Co. v. United States, 291 U.S. 54, 61, 54 S.Ct. 325, 78 L.Ed. 647; Collins v. Woodworth, 6 Cir., 109 F.2d 628; Continental Products Co. v. Commissioner, 1 Cir., 66 F.2d 434, 435; Lattimore v. United States, Ct.Cl., 12 F. Supp. 895, 911. Section 283(f) of the Revenue Act of 1926, 44 Stat. 64, 26 U.S.C.A. Int.Rev. Acts, page 216, provides as follows: ‘‘If any deficiency in any income * * * tax imposed by the * * * Revenue Act of 3918, or the Revenue Act of 1921 * * * was assessed before June 3, 1924 rtho tax in the instant ease for the year 1920 was assessed in December, 1921], hut was not paid in full before that date [the tax has not yet been paid in full or in part], and if the Commissioner after Juno 2, 1921, but before the enactment of this Aei finally determined the amount of Am deficiency [the Commissioner finally determined the amount of the deficiency in the instant case May 22, 1925], and if the person liable for such tax appealed before the enactment, of this Act to the Board and the appeal is pending before the Board at tile time of the enactment of this Act [the taxpayer appealed to the Board within 60 days after May 22, 1925, and the case was still pending before the Board when the 3926 Act was enacted, February 26, 3926], the Board shall have jurisdiction of the appeal. In" }, { "docid": "18409465", "title": "", "text": "his later action making a new assessment was in excess of his authority, and the new assessment was therefore illegal. ¥e do not think it is necessary to diseuss this question at length. The practice of the commissioner in making new and different assessments is of so long standing, and has met with such general acquiescence, that this in itself constitutes a strong reason rejecting the contention of plaintiff. Ever since the federal income tax laws have been enacted, this practice has been going on. Congress has not merely acquiesced in it, but by various enactments has recognized the practice, and has gone so far as to provide in the Revenue Act of 1921 (42 Stat. 227), which of course was not applicable to this case, a limitation on the reopening of cases. The cases cited by plaintiff with reference to the acts of some official of the government whose action is by law made final have no application here. The determinations of the Commissioner are not binding on the taxpayer, but are merely a prima facie regulation. Wickwire v. Reinecke, 275 U. S. 101, 48 S. Ct. 43, 72 L. Ed. 184. The distinction is clearly made in Fidelity & Columbia Trust Co. v. Lucas (D. C.) 7 F.(2d) 146, 149. In Botany Worsted Mills v. United States, 278 U. S. 282, 49 S. Ct. 129, 73 L. Ed. 379, it appeared that the taxpayer filed a return and paid the tax on the basis thereof. Subsequently an additional assessment was made by the bureau and was paid. The implication of the decision, which held the taxpayer could not recover the amount of the additional assessment, was that the Commissioner could make changes in the original assessment; and it was expressly so held by the Board of Tax Appeals in Appeal of James Couzens, 11 B. T. A. 1040, a ease where the government officials had fixed the amount of the tax which was paid by the party assessed. While the tax in question was assessed within the period of limitations it was not collected within the time fixed" }, { "docid": "6986107", "title": "", "text": "PER CURIAM: This is an appeal from a judgment sustaining an Internal Revenue Service determination of appellant’s tax liability for the years 1962 and 1964. The district court held that in a community property state each spouse must report and has federal income tax liability on one half of the community earnings. We affirm. Appellant and his wife were residents of Texas during the period in question. They filed separate returns, each claiming his or her own income and tax cred-mathematical deficiency was assessed because of this procedure. Also, certain deductions for travel expenses and dependence were disallowed and a separate statutory deficiency was assessed on these grounds. This statutory deficiency was discussed at a district office conference and payment was accepted for the amount agreed upon. Appellant contends that it is not mandatory that he and his wife each report one half of the community income. Further he argues that even if it were mandatory the government is now estopped from asserting that claim because of the acceptance of payment for the statutory deficiency for the same period. We reject both these arguments. its. A Under the laws of Texas each spouse has a vested interest in and is owner of half of the community property and is therefore liable for federal income taxes on such a share. Lange v. Phinney, 5 Cir., 1975, 507 F.2d 1000. There is therefore the “obligation, not merely the right, to report half the community income.” United States v. Mitchell, 1971, 403 U.S. 190, 196, 91 S.Ct. 1763, 1767, 29 L.Ed.2d 406, 412. As to appellant’s estoppel argument, the provisions for compromising tax cases are found in §§ 7121 and 7122 of the Internal Revenue Code. These provisions are exclusive and strictly construed. See Botany Worsted Mills v. United States, 1928, 278 U.S. 282, 49 S.Ct. 129, 73 L.Ed. 379. Because of this exclusive method, no theory founded upon general concepts of accord and satisfaction can be used to impute a compromise settlement, Moskowitz v. United States, 285 F.2d 451, 453, 152 Ct.Cl. 412 (1961), and therefore none resulted from the government’s acceptance" }, { "docid": "8957807", "title": "", "text": "16 B.T.A. 1280. In the latter case at page 1290, the Board said: “Since the original mailing did not under our decisions constitute such a notice as the statute contemplates, in that it was not mailed to the correct address, and since the second notice enclosing the first did not constitute a compliance with the statute in that it was not registered, it is apparent that no notice, either for the year 1922 or 1923, such as that provided for by statute was ever sent to the petitioner. As a consequence, we must hold that there is no basis for a proceeding before this Board in the case of this petitioner for either of the years 1922 or 1923, and, being without jurisdiction, we dismiss the proceeding.” In the case of Botany Mills v. United States, 278 U.S. 282, 289, 49 S.Ct. 129, 132, 73 L.Ed. 379, the Supreme Court said: “When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.” When the Commissioner on April 25, 1925, notified the taxpayer by registered letter that its claims for a refund and special assessment had been “denied,” it had either of two courses to pursue: It could have appealed to the Board of Tax Appeals within 60 days in accordance with the provisions of section 274(a) of the Revenue Act of 1924, or it could, in accordance with the Regulations, have within 30 days filed a protest with the Commissioner against the . rejections and submitted new evidence and requested a conference. It chose the latter course, as will be seen from the following extract from the Commissioner’s letter of December 17, 1925: “After a careful review of your .protest and of all the evidence submitted in support of your contention and of the additional information presented by your representatives in conference held June 9, 1925, you are advised that the Bureau holds that your application under the provisions of sections 210 [Revenue act 1917] and 327 [Revenue act 1918] for assessment of your profits tax * * * has" }, { "docid": "9983357", "title": "", "text": "from which the Commissioner did not appeal, is res adjudicata, and that the defendant may not attack the correctness of that decision collaterally in this court. The defendant insists that the decision is not binding on this court and is not res adjudicata. The case of the Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 49 S.Ct. 499, 73 L.Ed. 918, determined the jurisdiction of the Board of Tax Appeals, and the conclusiveness of its decision unappcalcd from. One quotation from this exhaustive opinion expresses the established rule of law. “The complete purpose of Congress to provide a final adjudication in such proceedings, binding all the parties, is manifest, and demonstrates the unsoundness of the objection.” 279 U.S. 716, at page 727, 49 S.Ct. 499, 503, 73 L.Ed. 918. Since the decision in the Old Colony Case was announced, a long line of cases has arisen and we find no one case which seeks to apply a different rule. In the case of Tait v. Western Maryland Railroad Co., 289 U.S. 620, 53 S.Ct. 706, 77 L.Ed. 1405, the Supreme Court held, quoting from the syllabus: “It will not be inferred that Congress, merely by adopting the scheme of annual tax periods, and without express declaration of purpose, intended to abolish the doctrine of res judicata in tax cases and thus to deprive Government and taxpayer of relief from redundant litigation of identical questions as to the liability of the same taxpayer under the same taxing provisions. United States v. Stone & Downer Co., 274 U.S. 225 [47 S.Ct. 616, 71 L.Ed. 1013], respecting res judicata in tariff cases, distinguished.” It is not essential to review the numerous cases cited in the brief. The Revenue Act of 1926 enlarged the jurisdiction of the Board, and it has been repeatedly held that where a taxpayer resorts to the Board, the remedy available to both the taxpayer and the Commissioner in the event of an adverse holding is by way of appeal to the federal courts mentioned. Bankers’ Reserve Life Co. v. United States, 44 F.(2d) 1000, 71 Ct.Cl. 279, certiorari" }, { "docid": "12974974", "title": "", "text": "Having thus resorted to Board action for the redress of his complaint, the appellant thereby put an end to what would have been his opportunity otherwise to institute a suit in court for the recovery of the taxes whereof he complained. Thenceforth, a court was without jurisdiction, save far the excepted instances not presently material, to entertain a suit for the recovery of the taxes assessed pursuant to the decision of the Board of Tax Appeals. Warren Mfg. Co. v. Tait, D. C. Md., 60 F.2d 982; Green v. MacLaughlin, D. C., E. D. Pa., 55 F.2d 423; Brampton Woolen Co. v. Field, 1 Cir., 56 F.2d 23. In Warren Mfg. Co. v. Tait, supra, it was held that the restriction upon a court’s jurisdiction under § 284(d) of the Revenue Act of 1926 was effective even where the petitioning taxpayer moved the dismissal of his petition by the Board with the acquiescence of the Commissioner, and the Board, in dismissing, expressed its inability to determine the matter on the pleadings. It is our conclusion that in so far as the plaintiff’s suit was based on the allegation that the Board of Tax Appeals acted without competent authority, the court below did not have jurisdiction. The matter had been before the Board and that precluded a suit in any court for the recovery of the taxes involved in the appeal to the Board. The appellant further contends that the court below erred in holding that the statute of limitations had not run either when the Commissioner of Internal Revenue made the deficiency assessments against Strand Amusement Company or when the assessment was made against the appellant as a transferee of Strand’s assets. Admittedly, notice of the transferee assessment was given within a year of the assessments against the transferor, as prescribed by § 280(b) (1) of the Revenue Act of 1926, c. 27, 44 Stat. 9, 26 U.S.C.AJnt.Rev. Acts, page 213. The appellant argues, however, that the assessments against both Strand and the appellant were made out of time with relation to the finality of the decisions of the Board" }, { "docid": "12974973", "title": "", "text": "the Court of Appeals of the District of Columbia, whose judgments are final save for possible review thereof by the Supreme Court upon certiorari. § 1003 of the Revenue Act of 1926, 26 U.S.C.A.Int.Rev. Acts, page 313. Moreover, the court below, by reason of express statutory inhibition, was without jurisdiction to entertain the appellant’s suit. § 284(d) of the Revenue Act of 1926, 26 U.S.C.A.Int.Rev. Acts, page 220, provides that where any taxpayer, after the enactment of that Act, files his petition with the Board of Tax Appeals, within the time prescribed, for a redetermination of the Commissioner’s notice of deficiency “no suit by the taxpayer for the recovery of any part of such tax shall be instituted in any court” except under certain specified circumstances, none of which obtain here with respect to the question now under consideration. After the enactment of the Revenue Act of 1926, namely, on September 3, 1927, the appellant filed his petition with the Board of Tax Appeals in respect of the Commissioner’s notice of the proposed transferee assessment. Having thus resorted to Board action for the redress of his complaint, the appellant thereby put an end to what would have been his opportunity otherwise to institute a suit in court for the recovery of the taxes whereof he complained. Thenceforth, a court was without jurisdiction, save far the excepted instances not presently material, to entertain a suit for the recovery of the taxes assessed pursuant to the decision of the Board of Tax Appeals. Warren Mfg. Co. v. Tait, D. C. Md., 60 F.2d 982; Green v. MacLaughlin, D. C., E. D. Pa., 55 F.2d 423; Brampton Woolen Co. v. Field, 1 Cir., 56 F.2d 23. In Warren Mfg. Co. v. Tait, supra, it was held that the restriction upon a court’s jurisdiction under § 284(d) of the Revenue Act of 1926 was effective even where the petitioning taxpayer moved the dismissal of his petition by the Board with the acquiescence of the Commissioner, and the Board, in dismissing, expressed its inability to determine the matter on the pleadings. It is our conclusion" }, { "docid": "15278540", "title": "", "text": "Commissioner, 11 B. T. A. 1180; Peerless Woolen Mills v. Commissioner, 13 B. T. A. 1119. The Revenue Aet of 1926 permitted either party to a proceeding before the Board of Tax Appeals dissatisfied with the decision of the board in a case heard and decided after the enactment of that aet, to petition for review thereof in the appropriate appellate court. In proceedings instituted before the board prior to the Revenue Aet of 1926 which were heard and decided by the board after the enactment of that act, the statute, as construed by the court in Old Colony Trust Co. v. Commissioner, 279 U. S. 716, 49 S. Ct. 499, 73 L. Ed. 918, permitted both the filing of a petition for review in the appropriate appellate court and the institution of suit. In our opinion, however, the statute did not and was not intended to confer any greater right to institute a suit in a trial court than was given to petition for a review of a decision of the board. It is manifest that the statute did not give either party before the Board of Tax Appeals a right to a review of a compromise or a consent decree by the board as to which no issue or question remained. The functions of the Board of Tax Appeals are judicial, and since its jurisdiction in the proceedings instituted by the plaintiff and its affiliated corporations included all matters affecting the correct tax and penalty liability of the petitioners for the years involved, the consent decrees entered by the board in the ease of plaintiff and its affiliated corporations definitely and finally concluded the rights of the parties, fixed the tax and penalty liability of the petitioners and they are now estopped to question the decision to which they specifically agreed. In Commissioner v. Liberty Bank & Trust Co. (C. C. A., Sixth Circuit) 59 F.(2d) 320, decided May 12, 1932, C. C. H., par. 9273, vol. III, 1932, the court pointed out that: “In passing upon matters such as are involved in this ease, the Board exercises" }, { "docid": "6573173", "title": "", "text": "facie evidence against the losing party. Section 900(g).” The Board of Tax Appeals was reorganized by the Revenue Act of 1926 and its decisions made reviewable by the Circuit Court of Appeals (sections 1000-1002, 44 Stat. 103). Certain appeals from the Commissioner to the Board of Tax Appeals had been taken under the 1924 Revenue Act before the 1926 Revenue Act was passed. In some of these cases the matter had been tried by the Board of Tax Appeals when no right of review existed, but decided after a right of review by the Circuit Court of Appeals had been created. The case at bar fell into the latter class. It was to meet such a situation that section 283(j) was enacted by Congress. The right to resort to the District Court by independent suit still existed, however. Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 49 S.Ct. 499, 73 L.Ed. 918; see Emery v. United States (D.C.) 27 F.(2d) 992; Old Colony R. Co. v. United States (D.C.) 27 F.(2d) 994. Under the 1926 Revenue Act, the parties to such class of cases were entitled to a trial de novo in the District Court. In Blair v. Curran, supra, 24 F.(2d) 390, 392, the court said: “A trial de novo is what Congress saved to the parties by section 283(j) of the Act of 1926, where a tax controversy had arisen under the Act of 1924, and a hearing before the Board, under the provisions of that act, had been held before the passage of the Act of 1926, and the decision of the Board was rendered after its passage.” We hold that the government was not estopped by the decision of the Board of Tax Appeals. IV. Did the agreed statement of facts constituting the evidence before the Board of Tax Appeals preclude the introduction of further evidence before the trial court? The Statutes (Revenue Act of 1924, §§ 274(b) and 279(b), as construed, provide for a trial de novo in the District Court. A further statute (Revenue Act of 1924, § 900(g), 43 Stat. 337, Revenue" } ]

[ { "docid": "18292427", "title": "", "text": "SCM’s motion will nonetheless be entertained and considered. See Rubberset Co. v. United States, 68 Cust.Ct. 370, C.R.D. 72-9, 342 F.Supp. 749 (1972). Since, by this motion, SCM contests the jurisdiction of the court, the motion will be treated as a motion to dismiss for lack of subject matter jurisdiction. A brief history of this litigation, and the statutory scheme under which it arose, is necessary to understand the nature and purpose of plaintiff’s motion. This case arises under the Antidumping Act of 1921, 19 U.S.C. § 160 et seq. (1970 & Supp. V 1975) (“Antidumping Act”), which was enacted to prevent actual or threatened injury to a domestic industry resulting from sales of imported merchandise in the United States at prices lower than in the country of origin. J.C. Penney Co. v. United States Department of Treasury, 319 F.Supp. 1023, 1024 (S.D.N.Y.1970), aff’d, 439 F.2d 63 (2d Cir. 1971), cert. denied, 404 U.S. 869, 92 S.Ct. 60, 30 L.Ed.2d 113 (1971); Timken Co. v. Simon, 176 U.S.App.D.C. 219, 539 F.2d 221 (1976). An affected American manufacturer, producer or wholesaler has the right to file a complaint with the Secretary of the Treasury (“Secretary”) alleging that a class of foreign merchandise is being “dumped” in the United States. 19 U.S.C. § 1516 (Supp. V 1975). The Secretary is then required to determine whether the foreign merchandise is actually being sold at a lower price in this country than in the home market, i. e., whether the sales are at less than fair value (LTFV). Whenever the Secretary finds sales at LTFV, he advises the United States International Trade Commission (“ITC”), which has three months to determine “whether an industry in the United States is being or is likely to be injured, or is prevented from being established, by reason of the importation of such merchandise into the United States.” If the ITC makes an affirmative injury determination, the Secretary must publish a notice of his and the ITC’s determinations in the Federal Register. This publication constitutes the “dumping finding.” The finding must include a description of the class or kind" } ]

[ { "docid": "23407529", "title": "", "text": "beads, etc. The jurisdictional uncertainty surrounding this action at the time issue was joined has been recently resolved in SCM Corporation v. United States (Brother International Corp., party-in-interest), 80 Cust. Ct. 226, C.R.D. 78-2 (1978), wherein Chief Judge Re held that the Customs Court has jurisdiction to review a negative injury determination bj' the Commission in an American manufacturer’s action pursuant to 19 U.S.C. 1516(c). See also my recent opinion in Armstrong Bros. Tool Co. et al. v. United States (Great Neck Saw Manufacturing, Inc., party-in-interest), 80 Cust. Ct. 160, C.D. 4751 (1978), modified on rehearing, 81 Cust. Ct. 162, C.R.D. 78-14 (1978), following the rationale of SCM. 28 U.S.C.1541(b) provides: When the chief judge of the Customs Court issues an order under the provisions of section 256 (b) of this title, or when any judge in the Customs Court, hi issuing any other interlocutory order, includes in the order a statement that a controlling question of law is involved as to which there is substantial ground for difference of opinion and that an immediate appeal from its order may materially advance the ultimate termination of the litigation, the Ccurt of Customs and Patent Appeals may, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order * * *. “A close reading of cases where claims of executive privilege were raised indicates that the necessary facts have generally been required to be raised by affidavit.” Smith v. F.T.C., 403 F. Supp. 1000, 1016 (D. Del. 1975). See 19 U.S.C. 1331(a) (1976), as amended by Public Law 95-106, 91 Stat. 868 (1977). See United States v. Morgan, 313 U.S. 409 (1941) (Morgan IV). Documents “f” and “g”, setting forth arguments “fer and against\" an affirmative injury determination, are treated the same as the \"pros and cons\" statement, document \"a\". Document “h” will be considered infra. The motion papers do not state the precise number o£ these “public” and “confidential” documents; An examination by the Court reveals that these figures are indicated on the lists" }, { "docid": "16303468", "title": "", "text": "§ 1516(a) (1970), plaintiff, an American manufacturer of portable electric and portable manual typewriters, filed a complaint charging that portable electric typewriters from Japan were being sold at less than fair value within the meaning of the Antidumping Act of 1921, as amended, 19 U.S.C. § 160 et seq. (1970). A broad sketch of the key provisions of this act may be helpful. See e. g., F. W. Myers & Co., Inc. v. United States, 376 F.Supp. 860, 862-63, 72 Cust.Ct. 219, 220-21, C.D. 4544 (1974). Under the Antidumping Act of 1921 an American manufacturer may file a complaint with the Secretary of the Treasury to protest actual or threatened injury to an industry or the establishment of an industry. The Secretary has the duty to determine whether that class or kind of imported merchandise is being sold, or is likely to be sold in the United States or elsewhere, at less than fair value. The act also provides for the issuance of a notice withholding appraisement in advance of a finding of sales at less than fair value, or as soon as the Secretary has reason to believe or suspect the existence of such sales. This provisional remedy precludes importers, during the pendency of an investigation, from escaping a subsequent dumping duty assessment on the imported merchandise. If the Secretary issues an affirmative finding of sales at less than fair value, the matter is referred to the International Trade Commission. The Commission must then determine whether an industry in the United States is being or is likely to be injured, or is prevented from being established, by reason of the less than fair value sales. If the Commission makes an affirmative finding of injury or likelihood of an injury, the Secretary of the Treasury must publish in the Federal Register notice of his determination as well as the findings of the Commission. Under the Antidumping Act these administrative decisions comprise the “dumping findings.” As a consequence of the finding of “dumping,” the imported merchandise is assessed with additional duties. Specifically, when a dumping finding has been published, all imported" }, { "docid": "686275", "title": "", "text": "and exhibits introduced before the Commission in investigation AA1921141; (2) certified copies of all written submissions, questionnaires, reports and all other documents relating to investigation AA1921-141; and (3) all other things in the files of the Commission relating to the investigation. Cf. Judge Maletz’ order in Pasco Terminals, Inc. v. United States, 80 Cust.Ct. 249, C.R.D. 78-3 (1978), and also his unpublished order in the same case entered on May 8, 1978. See also my order in Sprague Electric Company v. United States (Capar Components Corp., Party-in-Interest), 80 Cust.Ct. 256, C.R.D. 78-7 (1978), entered concurrently herewith. 3. That denial of defendant’s present motion for a protective order shall be without prejudice to renewal respecting any documents or things that were received by the Commission on a confidential basis or are otherwise privileged. 4. That the basis of this order is to enable the court to determine whether or not the Commission’s finding of injury was, among other things, arbitrary, an abuse of discretion, or otherwise contrary to law. See, e. g., Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Imbert Imports, Inc. v. United States, 475 F.2d 1189, 60 CCPA 123, C.A.D. 1094 (1973); Suwannee Steamship Company v. United States, 435 F.Supp. 389, 79 Cust.Ct. 19, C.D. 4708 (1977); Cf. Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975). See also questions and answers attached to the letter of Daniel Minchew, Chairman, United States International Trade Commission, November 16, 1977, reproduced in Hearing before the Subcommittee'on Trade, House Committee on Ways and Means, on the Adequacy and the Administration of the Antidumping Act of 1921 (95th Cong., 1st Sess. 1977) pp. 65-66. Pursuant to the foregoing order, as modified, the Secretary of the Commission transmitted what are represented to be all of the documents and things enumerated and described above that were locatable, with the exception of the three documents that were claimed by the Commission Chairman to be privileged. Defendant, however, again advances" }, { "docid": "21870767", "title": "", "text": "in proper perspective, it would be helpful at this juncture to briefly set forth the procedures applicable under the Antidumping Act as succinctly summarized by Judge Maletz in Voss International Corp. v. United States, 78 Cust. Ct. 130, 131, n. 1, C.D. 4698, 432 F. Supp. 205 (1977): The Antidumping Act provides in general that if a foreign exporter sells merchandise to the United States at a price less than its “fair value,” i.e., the price charged by the exporter in his home market — with resultant injury to a U.S. industry — a special dumping duty will be assessed upon the importation of the merchandise. If the exporter and importer are not related, this duty is measured by the difference between the higher “foreign market value” and the lower price charged the U.S. importer. The question as to whether merchandise is being sold at less than fair value is determined by the Secretary of the Treasury. If the Secretary makes an affirmative finding in this regard, the question as to whether there is injury is determined by the U.S. Tariff Commission (now known as the U.S. International Trade Commission). If the Commission makes a determination of injury, the Secretary makes and publishes a finding of dumping. See, e.g., F. W. Myers & Co., Inc., et al. v. United States, 72 Cust. Ct. 219, 220, C.D. 4544, 376 F. Supp. 860, 862 (1974). The court’s jurisdiction under 19 U.S.C. 1516(c) to review the Commission’s negative injury determination is not in dispute. In view of Chief Judge Re’s well-reasoned opinion in SCM Corporation v. United States (Brother International Corporation, Party-in-Interest), 80 Cust. Ct. 226, C.R.D. 78-2, 450 F. Supp. 1178 (1978), there can be no doubt that the Customs Court, rather than the district courts, has exclusive jurisdiction to review a negative injury determination by the Commission under the Antidumping Act. See also my opinions in Armstrong Bros. Tool Co. et al. v. United States (Great Neck Saw Manufacturing, Incorporated, Party-in-Interest), 80 Cust. Ct. 160, C.D. 4751, 453 F. Supp. 889 (1978), modified on rehearing, 81 Cust. Ct. 162, C.R.D. 78-14" }, { "docid": "686271", "title": "", "text": "by the Secretary of the Treasury. If the Secretary makes an affirmative finding in this regard, the question as to whether there is injury is determined by the United States Tariff Commission (now known as the United States International Trade Commission). If the Commission makes a determination of injury, the Secretary makes and publishes a finding of dumping. See, e. g., F. W. Myers & Co., Inc., et al. v. United States, 376 F.Supp. 860, 862, 72 Cust.Ct. 219, 220, C.D. 4544 (1974). The Court’s jurisdiction under 19 U.S.C. § 1516(c) to review the Commission’s negative injury determination is not in dispute. In view of Chief Judge Re’s well-reasoned opinion in SCM Corporation v. United States (Brother International Corporation, Party-in-Interest), 450 F.Supp. 1178, 80 Cust.Ct. 226, C.R.D. 78-2 (1978), there can be no doubt that the Customs Court, rather than the district courts, has exclusive jurisdiction to review a negative injury determination by the Commission under the Anti-dumping Act. See also my opinions in Armstrong Bros. Tool Co. et al. v. United States (Great Neck Saw Manufacturing, Incorporated, Party-in-Interest), 453 F.Supp. 889, 80 Cust.Ct. 160, C.D. 4751 (1978), modified on rehearing, 81 Cust.Ct. 162, C.R.D. 78-14 (1978), and Sprague Electric Company v. United States (Capar Components Corp., Party-in-Interest), 462 F.Supp. 966, 81 Cust.Ct. 168, C.R.D. 78-18 (1978). The highlights of the administrative history of this action are undisputed, and may be briefly summarized: 1. On September 25, 1973 an Antidumping Proceeding Notice issued by the Treasury Department was published in the Federal Register (38 FR 26738 (1973)), advising that an investigation was being instituted to determine whether certain “Non-Powered Hand Tools From Japan” were being or were likely to be sold at LTFV. 2. On March 25, 1974 a Withholding of Appraisement Notice was published in the Federal Register (39 FR 11122 (1974)). 3. On June 21, 1974 the Treasury Department published in the Federal Register a Determination of Sales at LTFV covering “Non-Powered Hand Tools From Japan” (39 FR 22287 (1974)); and on July 23, 1974 the Treasury Department published in the Federal Register an amendment to the aforementioned" }, { "docid": "5107195", "title": "", "text": "plaintiffs seek an order setting aside the Commission’s negative injury determination and directing Treasury to publish a finding of dumping with the result that antidumping duties will be assessed, where appropriate, on entries of the subject hand tools from Japan. GOVERNMENT’S CONTENTION The Government contends that the Court is limited to a review of the Commission’s Statement of Reasons in deciding whether the Commission’s determination is arbitrary, capricious, or otherwise contrary to law. Relying upon the foregoing scope and standard of review, defendant urges that the Commission, in its Statement of Reasons, applied proper legal criteria and considered appropriate indicia of injury, and therefore its determination is not arbitrary, capricious, or otherwise contrary to law. Moreover, defendant maintains that in any event, the Commission’s determination is supported by the administrative record, as transmitted to the Court. Finally, defendant insists that Treasury acted lawfully in amending its LTFV determination. ISSUES PRESENTED 1. Whether the Commission’s negative injury determination is arbitrary, capricious, or otherwise contrary to law. 2. Whether Treasury’s amendment of its LTFV determination after transmittal to the Commission of the antidumping investigation was ultra vires. OPINION I For the scope and standard of review applicable to the Commission’s injury determinations see my recent opinion in Armstrong Bros. Tool Co. et al. v. United States (Daido Corporation, Steelcraft Tools Division, Party-in-Interest), 483 F.Supp. 312, 84 Cust.Ct. -, C.D. 4838 (1980), appeal pending (“Armstrong I”), and cases cited therein. See also SCM Corporation v. United States (Brother International Corporation, Party-in-Interest), 487 F.Supp. 96, 84 Cust.Ct. -, C.R.D. 80-2 (1980). In the present case, following the rationale of Armstrong I, I have carefully reviewed the entire administrative record transmitted to the Court, and do not find the Commission’s determination to be arbitrary, capricious, or otherwise contrary to law, as claimed by plaintiffs. Moreover, I am unable to agree with plaintiffs’ contention that the Commission’s determination is not supported by substantial evidence. In Armstrong I, I emphasized the intent of Congress to provide the Commission with a wide latitude within which to determine the existence or nonexistence of injury un der the Antidumping Act," }, { "docid": "5971716", "title": "", "text": "claims comprises privileged matter. 4. That document “h” shall be inspected by the Court in camera for the purpose of considering defendant’s claim of executive privilege, and determining whether the excised portion of the second paragraph of the document comprises privileged matter which should not be disclosed to plaintiff. 5. That this Court’s order of June 27, 1978 is modified in accordance with the foregoing paragraphs. 6. Defendant’s alternative request to file an immediate appeal from this order pursuant to 28 U.S.C. § 1541(b) is denied. . The jurisdictional uncertainty surrounding this action at the time issue was joined has been recently resolved in SCM Corporation v. United States (Brother International Corporation, Party-in-Interest), 80 Cust.Ct. 226, C.R.D. 78-2 (1978), wherein Chief Judge Re held that the Customs Court has jurisdiction to review a negative injury determination by the Commission in an American manufacturer’s action pursuant to 19 U.S.C. § 1516(c). See also my recent opinion in Armstrong Bros. Tool Co., et al. v. United States (Great Neck Saw Manufacturing, Incorporated, Party-in-Interest), 80 Cust.Ct. 160, C.D. 4751 (1978), modified on rehearing, 81 Cust.Ct. —, C.R.D. 78-14 (1978), following the rationale of SCM. . 28 U.S.C. § 1541(b) provides: When the chief judge of the Customs Court issues an order under the provisions of section 256(b) of this title; or when any judge in the Customs Court, in issuing any other interlocutory order, includes in the order a statement that a controlling question of law is involved as to which there is substantial ground for difference of opinion and that an immediate appeal from its order may materially advance the ultimate termination of the litigation, the Court of Customs and Patent Appeals may, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order * * * . . “A close reading of cases where claims of executive privilege were raised indicates that the necessary facts have generally been required to be raised by affidavit”. Smith v. F.T.C., 403 F.Supp. 1000, 1016 (D.Del.1975). . See 19" }, { "docid": "18391476", "title": "", "text": "determination was made pursuant to section 736(c) of the Tariff Act of 1930, as added by the Trade Agreements Act of 1979, 19 U.S.C. § 1673e(c). See my decision in 1 CIT — , Slip Op. 80-17, 507 F.Supp. 1015 (1980) for the background of the “Early Determination of Antidumping Duties” by Commerce; and the memorandum and order granting SCM’s application for injunctive relief, while denying Brother’s cross-motion to dismiss for lack of subject matter jurisdiction. See also SCM Corporation v. United States (Brother International Corporation, Party-in-Interest), 84 Cust.Ct. 227, C.R.D. 80-2, 487 F.Supp. 96 (1980) and F.W. Myers & Co., Inc., et al. v. United States, 72 Cust.Ct. 219, 220-21, C.D. 4544, 376 F.Supp. 860 (1974), for excellent summaries of the Anti-dumping Act and its administration by Chief Judge Re and Judge Maletz respectively. . On October 14, 1980, oral argument was heard on SCM’s requested injunctive and inci- • dental relief, and Brother’s cross-motion to dismiss. On March 4, 1982, oral argument was heard concerning the merits in this consolidated case pursuant to SCM’s request. . The PETs covered by the early determination of antidumping duties were entered or withdrawn from warehouse for consumption on or after January 4, 1980 to May 7, 1980. January 4, 1980 was the date of publication by the Treasury Department of its tentative determination of sales at less than fair value, and the date on which liquidation was suspended (44 FR 1220); May 7, 1980 was the date of publication by the International Trade Commission of its affirmative final injury determination (45 FR 30188). On January 2, 1980, Treasury’s responsibility for the administration of the anti-dumping law was transferred to the Commerce Department by the President’s Reorganization Plan No. 3 of 1979 (44 FR 69275 and 45 FR 9931). . SCM also challenges an alleged determination by Commerce granting Silver an adjustment for differences in merchandise for costs associated with the changeover of production lines. However, in light of the statements of defendant and of Silver that in fact no adjustment was granted to Silver for production changeover costs, SCM “does not" }, { "docid": "18450177", "title": "", "text": "the issue of validity. Thus, the issue of validity of the Commission’s original determination is now before the court again. As the plaintiff stated, citing Ford Motor Co. v. National Labor Relations Board, 305 U.S. 364, 372, 59 S.Ct. 301, 83 L.Ed. 221 (1939), the Commission having failed to act on the remand, the court can proceed with its consideration of the motions before it. It is not precluded from doing so either by estoppel or by the “law of the case.” The failure of the Commission to vote again merely returns the parties to the status quo prior to the remand. In view of the foregoing, defendant’s motion for partial summary judgment as to plaintiff’s first course of action is granted and plaintiff’s cross-motion for summary judgment is denied. . The Antidumping Act provides in general that if a foreign exporter sells merchandise to the United States at a price less than its “fair value,” i. e., the price charged by the exporter in his home market — with résultant injury to a U. S. industry — a special dumping duty will be assessed upon the importation of the merchandise. If the exporter and importer are not related, this duty is measured by the difference between the higher “foreign market value” and the lower price charged the U. S. importer. The question as to whether merchandise is being sold at less than fair value is determined by the Secretary of the Treasury. If the Secretary makes an affirmative finding in this regard, the question as to whether there is injury is determined by the United States Tariff Commission (now known as the United States International Trade Commission). If the Commission makes a determination of injury, the Secretary makes and publishes a finding of dumping. See, e. g., F. W. Myers & Co., Inc., et al. v. United States, 72 Cust.Ct. 219, 220, C.D. 4544, 376 F.Supp. 860, 862 (1974). . In its second cause of action plaintiff alleges that the basis used by the government for calculating the amount of dumping duties was erroneous. . The Tariff Commission has" }, { "docid": "23407528", "title": "", "text": "West-brass Company v. U.S. (C.D. 4293) (items marked “A” and “B”) Item 734.54 15% Item 791.75 6% Dutiable as en-tireties on basis of export value; said value is invoice unit price Item 692.30 Pree of duty Item 692.30 Pree of duty Item 653.95 13.5% (items marked “A”) Item 654.00 10% (items marked “B”) Item 653.95 10% or 8.5% Item 692.35 5.5% Item 692.Í6 5% Item 737.90 17.5% Item 382.58 37.60 per lb. + 20% (blouses and pants) Item 791.75 6% (jackets) Items 807.00/ 692.35 5.5% Item 657.20 15% (items marked “A”) Item 657.35 15% +1.2750 per lb. Item 657.20 11% or 9.5% 75-3-00692 73-3-00784, etc; 74^3-00849 77-2-00293 68/6168, etc. 73-7-01696, etc. Norman G. Jensen, Inc. P. J. Strauss Co., Inc. Shayne Knitwear, Inc. Clark Equipment Company Durst Industries, Inc. Durst Industries, Inc., et al. Pord, J. December 12, 1978 Maletz, J. December 12, 1978 Maletz, J. December 14, 1978 Ford, J. December 11, 1978 Newman, J. December 7, 1978 Newman, J. December 6, 1978 P78/155 P78/154 P78/153 P78/152 P78/151 ABSTRACTS OF CUSTOMS COURT DECISIONS ants, beads, etc. The jurisdictional uncertainty surrounding this action at the time issue was joined has been recently resolved in SCM Corporation v. United States (Brother International Corp., party-in-interest), 80 Cust. Ct. 226, C.R.D. 78-2 (1978), wherein Chief Judge Re held that the Customs Court has jurisdiction to review a negative injury determination bj' the Commission in an American manufacturer’s action pursuant to 19 U.S.C. 1516(c). See also my recent opinion in Armstrong Bros. Tool Co. et al. v. United States (Great Neck Saw Manufacturing, Inc., party-in-interest), 80 Cust. Ct. 160, C.D. 4751 (1978), modified on rehearing, 81 Cust. Ct. 162, C.R.D. 78-14 (1978), following the rationale of SCM. 28 U.S.C.1541(b) provides: When the chief judge of the Customs Court issues an order under the provisions of section 256 (b) of this title, or when any judge in the Customs Court, hi issuing any other interlocutory order, includes in the order a statement that a controlling question of law is involved as to which there is substantial ground for difference of opinion and that an immediate" }, { "docid": "686270", "title": "", "text": "ISSUE PRESENTED The core issue is whether the Commission’s negative determination was arbitrary, capricious or otherwise contrary to law. BACKGROUND To put the Commission’s determination in proper perspective, it would be helpful at this juncture to briefly set forth the procedures applicable under the Antidumping Act as succinctly summarized by Judge Maletz in Voss International Corp. v. United States, 432 F.Supp. 205, 78 Cust.Ct. 130, 131, n. 1, C.D. 4698 (1977): The Antidumping Act provides in general that if a foreign exporter sells merchandise to the United States at a price less than its “fair value,” i. e., the price charged by the exporter in his home market — with resultant injury to a U.S. industry — a special dumping duty will be assessed upon the importation of the merchandise. If the exporter and importer are not related, this duty is measured by the difference between the higher “foreign market value” and the lower price charged the U.S. importer. The question as to whether merchandise is being sold at less than fair value is determined by the Secretary of the Treasury. If the Secretary makes an affirmative finding in this regard, the question as to whether there is injury is determined by the United States Tariff Commission (now known as the United States International Trade Commission). If the Commission makes a determination of injury, the Secretary makes and publishes a finding of dumping. See, e. g., F. W. Myers & Co., Inc., et al. v. United States, 376 F.Supp. 860, 862, 72 Cust.Ct. 219, 220, C.D. 4544 (1974). The Court’s jurisdiction under 19 U.S.C. § 1516(c) to review the Commission’s negative injury determination is not in dispute. In view of Chief Judge Re’s well-reasoned opinion in SCM Corporation v. United States (Brother International Corporation, Party-in-Interest), 450 F.Supp. 1178, 80 Cust.Ct. 226, C.R.D. 78-2 (1978), there can be no doubt that the Customs Court, rather than the district courts, has exclusive jurisdiction to review a negative injury determination by the Commission under the Anti-dumping Act. See also my opinions in Armstrong Bros. Tool Co. et al. v. United States (Great Neck" }, { "docid": "5971715", "title": "", "text": "other papers and proceedings had herein, it is hereby ORDERED: 1. That defendant’s motion for a protective order is granted with respect to documents “a” through “g” described in exhibit A annexed to the affidavit of the Chairman of the ITC. 2. That the Secretary of the ITC is relieved from the requirement to transmit to the Clerk of the Court documents “a” through “g” described in exhibit A annexed to the affidavit of the Chairman of the ITC. 3. That within thirty (30) days of the entry of this order, the Secretary of the ITC shall prepare and transmit under seal to Joseph E. Lombardi, Clerk of the United States Customs Court, two certified copies of document “h” described in said exhibit A, for which a claim of executive privilege has been made by the Chairman of the ITC respecting a portion of the second paragraph of the document. One certified copy shall be in complete and unexpurgated form; the second copy shall have excised therefrom the portion of the second paragraph which defendant claims comprises privileged matter. 4. That document “h” shall be inspected by the Court in camera for the purpose of considering defendant’s claim of executive privilege, and determining whether the excised portion of the second paragraph of the document comprises privileged matter which should not be disclosed to plaintiff. 5. That this Court’s order of June 27, 1978 is modified in accordance with the foregoing paragraphs. 6. Defendant’s alternative request to file an immediate appeal from this order pursuant to 28 U.S.C. § 1541(b) is denied. . The jurisdictional uncertainty surrounding this action at the time issue was joined has been recently resolved in SCM Corporation v. United States (Brother International Corporation, Party-in-Interest), 80 Cust.Ct. 226, C.R.D. 78-2 (1978), wherein Chief Judge Re held that the Customs Court has jurisdiction to review a negative injury determination by the Commission in an American manufacturer’s action pursuant to 19 U.S.C. § 1516(c). See also my recent opinion in Armstrong Bros. Tool Co., et al. v. United States (Great Neck Saw Manufacturing, Incorporated, Party-in-Interest), 80 Cust.Ct. 160, C.D." }, { "docid": "686276", "title": "", "text": "U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); Imbert Imports, Inc. v. United States, 475 F.2d 1189, 60 CCPA 123, C.A.D. 1094 (1973); Suwannee Steamship Company v. United States, 435 F.Supp. 389, 79 Cust.Ct. 19, C.D. 4708 (1977); Cf. Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975). See also questions and answers attached to the letter of Daniel Minchew, Chairman, United States International Trade Commission, November 16, 1977, reproduced in Hearing before the Subcommittee'on Trade, House Committee on Ways and Means, on the Adequacy and the Administration of the Antidumping Act of 1921 (95th Cong., 1st Sess. 1977) pp. 65-66. Pursuant to the foregoing order, as modified, the Secretary of the Commission transmitted what are represented to be all of the documents and things enumerated and described above that were locatable, with the exception of the three documents that were claimed by the Commission Chairman to be privileged. Defendant, however, again advances the argument that this Court’s review is limited to the Commission’s Statement of Reasons. But defendant’s position respecting the scope of review has been consistently rejected by a long and uninterrupted line of authorities. See Pasco Terminals, Inc. v. United States, 80 Cust.Ct. 249, C.R.D. 78-3 (1978); Armstrong Bros. Tool Co. et al. v. United States (Daido Corporation, Steeleraft Tools Division, Party-in-Interest), 80 Cust.Ct. 252, C.R.D. 78-5 (1978); Sprague Electric Company v. United States (Capar Components Corp., Party-in-Interest), 80 Cust.Ct. 256, C.R.D. 78-7 (1978); SCM Corporation v. United States (Brother International Corporation, Party-in-Interest), 81 Cust.Ct. 159, C.R.D. 78-13 (1978), and authorities cited therein. See also Michelin Tire Corporation v. United States, 469 F.Supp. 270, 82 Cust.Ct. -, C.R.D. 79-6 (1979), application for extraordinary writs denied sub nom. United States v. James L. Watson, Judge, United States Customs Court; Michelin Tire Corporation, Party-in-Interest, 66 CCPA -, C.A.D. 1230 (1979). Accordingly, I have carefully reviewed the entire administrative record transmitted to the Court by the Commission, and not merely the Statement of Reasons. OPINION I Our Appellate" }, { "docid": "16303475", "title": "", "text": "impression are almost commonplace. Only a few decisions need be cited as examples of the far-reaching questions determined by a single-judge court in customs cases. In Globemaster, Inc. v. United States, 340 F.Supp. 974, 68 Cust.Ct. 77, C.D. 4340 (1972), the issue was whether the importer could be relieved of the statutory requirement of marking the country of origin upon imported merchandise by the payment of additional duty. In Suwannee Steamship Company v. United States, 354 F.Supp. 1361, 70 Cust.Ct. 327, C.R.D. 73-3 (1973) , the question presented was whether this court had jurisdiction to review the discretionary authority conferred on the Secretary of Treasury in the remission of duties assessed on repairs made in foreign ports. In American Customs Brokerage Co., Inc., a/c Astral Corp. v. United States, 375 F.Supp. 1360, 72 Cust.Ct. 245, C.D. 4546 (1974) , the court was called upon to determine what constitutes an “importation” within the meaning of the customs laws. In Akins v. United States, 407 F.Supp. 748, 76 Cust.Ct. 15, C.D. 4629 (1976), aff'd, 551 F.2d 1222, 64 CCPA-, C.A.D. 1185 (1977), the court held that article III of the Jay Treaty of 1794, under which plaintiff claimed exemption from imposition of customs duties, was abrogated by the War of 1812 and by subsequent inconsistent legislation by Congress. In Pasco Terminals, Inc. v. United States, 416 F.Supp. 1242, 76 Cust.Ct. 204, C.D. 4658 (1976), appeal pending, the court dismissed plaintiff’s suit against the imposition of dumping duties on imported sulphur on the ground that the plaintiff lacked standing. In Voss International Corp. v. United States, 78 Cust.Ct. -, C.D. 4698 (1977), the court held that the determination of injury by the Tariff Commission [now the International Trade Commission], achieved by a two to two vote of the five members of the Commission who attended the meeting, was valid under the provisions of 19 U.S.C. § 160(a) (1970). Indeed, cases raising issues involving the interpretation of the Antidumping Act of 1921 have been resolved exclusively by a single judge of this court. Some examples are: Matsushita Electric Industrial Company, Ltd., et al. v." }, { "docid": "18450178", "title": "", "text": "S. industry — a special dumping duty will be assessed upon the importation of the merchandise. If the exporter and importer are not related, this duty is measured by the difference between the higher “foreign market value” and the lower price charged the U. S. importer. The question as to whether merchandise is being sold at less than fair value is determined by the Secretary of the Treasury. If the Secretary makes an affirmative finding in this regard, the question as to whether there is injury is determined by the United States Tariff Commission (now known as the United States International Trade Commission). If the Commission makes a determination of injury, the Secretary makes and publishes a finding of dumping. See, e. g., F. W. Myers & Co., Inc., et al. v. United States, 72 Cust.Ct. 219, 220, C.D. 4544, 376 F.Supp. 860, 862 (1974). . In its second cause of action plaintiff alleges that the basis used by the government for calculating the amount of dumping duties was erroneous. . The Tariff Commission has a membership of six Commissioners. . To elaborate on the foregoing, the vote on injury was taken at a meeting of the Commission on April 20, 1972, at which five Commissioners were present. Two Commissioners voted affirmatively that an industry in the United States was being injured by reason of the importation of asbestos cement pipe from Japan; two voted negatively; and the fifth Commissioner present abstained. On the basis of this voting pattern, the Commission found injury pursuant to 19 U.S.C. § 160(a). . The excerpt from the report of the Tariff Commission to which plaintiff refers is contained at page 2 of the Commission’s Determination of Injury in Investigation No. AA192191 Under the Antidumping Act, 1921, as Amended, TC Publication 483 (May 1972), also published in 37 Fed.Reg. 9267 (1972). . Parenthetically, it is to be observed that while' not set forth in the court’s order, the remand and stay were motivated in major part by the court’s desire to avoid needless judicial controversy. For on remand had all members of the Commission" }, { "docid": "19246399", "title": "", "text": "The question as to whether merchandise is being sold at less than fair value is determined by the Secretary of the Treasury. If the Secretary makes an affirmative finding in this regard, the question as to whether there is injury is determined by the United States Tariff Commission (now known as the United States International Trade Commission). If the Commission makes a determination of injury, the Secretary makes and publishes a finding of dumping. See, e.g., F. W. Myers & Co., Inc., et al. v. United States, 72 Cust. Ct. 219, 220, C.D. 4544, 376 TP. Supp. 860, 862 (1974). In its second cause of action plaintiff alleges that the basis used by the government for calculating the amount of dumping duties was erroneous, The Tariff Commission has a membership of six Commissioners. To elaborate on the foregoing, the vote on injury was taken at a meeting of the Commission on April 20, 1972, at which five Commissioners were present. Two Commissioners voted affirmatively that an industry in the United States was being injured by reason of the importation of asbestos cement pipe from Japan; two voted negatively; and the fifth Commissioner present abstained. On the basis of this voting pattern, the Commission found injury pursuant to 19 U.S.C. 160(a). The excerpt from the report of the Tariff Commission to which plaintiff refers is contained at page 2 of the Commission's Determination of Injury in Investigation No. AA1921-91 Under the Antidumping Act, 1921, as Amendedt TC Publication 483 (May 1972). also published in 37 Fed. Reg. 9267 (1972). Parenthetically, it is to be observed that while not set forth in the court’s order, the remand and stay were motivated in major part by the court’s desired to avoid needless judicial controversy. For on remand had all members of the Commission voted on the injury question or had the fifth Commissioner actually voted, all controversy as to the validity of the injury determination would have been avoided." }, { "docid": "21870768", "title": "", "text": "is determined by the U.S. Tariff Commission (now known as the U.S. International Trade Commission). If the Commission makes a determination of injury, the Secretary makes and publishes a finding of dumping. See, e.g., F. W. Myers & Co., Inc., et al. v. United States, 72 Cust. Ct. 219, 220, C.D. 4544, 376 F. Supp. 860, 862 (1974). The court’s jurisdiction under 19 U.S.C. 1516(c) to review the Commission’s negative injury determination is not in dispute. In view of Chief Judge Re’s well-reasoned opinion in SCM Corporation v. United States (Brother International Corporation, Party-in-Interest), 80 Cust. Ct. 226, C.R.D. 78-2, 450 F. Supp. 1178 (1978), there can be no doubt that the Customs Court, rather than the district courts, has exclusive jurisdiction to review a negative injury determination by the Commission under the Antidumping Act. See also my opinions in Armstrong Bros. Tool Co. et al. v. United States (Great Neck Saw Manufacturing, Incorporated, Party-in-Interest), 80 Cust. Ct. 160, C.D. 4751, 453 F. Supp. 889 (1978), modified on rehearing, 81 Cust. Ct. 162, C.R.D. 78-14 (1978); and Sprague Electric Company v. United States (Capar Components Corp., Party-in-Interest), 81 Cust. Ct. 168, C.R.D. 78-18, 462 F. Supp. 966 (1978). The highlights of the administrative history of this action are undisputed, and may be briefly summarized: 1. On September 25, 1973, an antidumping proceeding notice issued by the Treasury Department was published in the Federal Register (38 F.R. 26738 (1973)), advising that an investigation was being instituted to determine whether certain “Non-Powered Hand Tools From Japan” were being or were likely to be sold at LTFY. 2. On March 25, 1974, a withholding of appraisement notice was published in the Federal Register (39 F.R. 11122 (1974)). 3. On June 21, 1974, the Treasury Department published in the Federal Register a determination of sales at LTFY covering “Non-Powered Hand Tools From Japan” (39 F.R. 22287 (1974)); and on July 23, 1974, the Treasury Department published in the Federal Register an amendment to the aforementioned determination, restricting its scope to wrenches, pliers, screwdrivers, and metal-cutting snips and shears from Japan (39 F.R. 26758 (1974))." }, { "docid": "686272", "title": "", "text": "Saw Manufacturing, Incorporated, Party-in-Interest), 453 F.Supp. 889, 80 Cust.Ct. 160, C.D. 4751 (1978), modified on rehearing, 81 Cust.Ct. 162, C.R.D. 78-14 (1978), and Sprague Electric Company v. United States (Capar Components Corp., Party-in-Interest), 462 F.Supp. 966, 81 Cust.Ct. 168, C.R.D. 78-18 (1978). The highlights of the administrative history of this action are undisputed, and may be briefly summarized: 1. On September 25, 1973 an Antidumping Proceeding Notice issued by the Treasury Department was published in the Federal Register (38 FR 26738 (1973)), advising that an investigation was being instituted to determine whether certain “Non-Powered Hand Tools From Japan” were being or were likely to be sold at LTFV. 2. On March 25, 1974 a Withholding of Appraisement Notice was published in the Federal Register (39 FR 11122 (1974)). 3. On June 21, 1974 the Treasury Department published in the Federal Register a Determination of Sales at LTFV covering “Non-Powered Hand Tools From Japan” (39 FR 22287 (1974)); and on July 23, 1974 the Treasury Department published in the Federal Register an amendment to the aforementioned determination, restricting its scope to wrenches, pliers, screwdrivers, and metal-cutting snips and shears from Japan (39 FR 26758 (1974)). 4. On July 30,1974 the Commission published in the Federal Register a notice of its Investigation No. AA1921-141, and of a public hearing in which all parties would be “given an opportunity to be present, to produce evidence, and to be heard” (39 FR 27614 (1974)). Thereafter, on August 20-23, 1974 the Commission held a hearing at which testimony and exhibits were received. All public testimony was subject to cross-examination; and subsequently the Commission received post-hearing briefs. 5. On October 21,1974 a negative injury determination was reached by the unanimous vote of five Commissioners, namely, Chairman Bedell, Vice Chairman Parker, and Commissioners Moore, Ablondi and Leonard. Commissioner Minchew did not participate in the decision. 6. On October 29, 1974 the Commission published its negative injury determination in the Federal Register, together with a Statement of Reasons. Commissioner Leonard submitted a separate Statement of Reasons. (39 FR 38133 (1974).) In arriving at its determination, “the Commission gave" }, { "docid": "686277", "title": "", "text": "the argument that this Court’s review is limited to the Commission’s Statement of Reasons. But defendant’s position respecting the scope of review has been consistently rejected by a long and uninterrupted line of authorities. See Pasco Terminals, Inc. v. United States, 80 Cust.Ct. 249, C.R.D. 78-3 (1978); Armstrong Bros. Tool Co. et al. v. United States (Daido Corporation, Steeleraft Tools Division, Party-in-Interest), 80 Cust.Ct. 252, C.R.D. 78-5 (1978); Sprague Electric Company v. United States (Capar Components Corp., Party-in-Interest), 80 Cust.Ct. 256, C.R.D. 78-7 (1978); SCM Corporation v. United States (Brother International Corporation, Party-in-Interest), 81 Cust.Ct. 159, C.R.D. 78-13 (1978), and authorities cited therein. See also Michelin Tire Corporation v. United States, 469 F.Supp. 270, 82 Cust.Ct. -, C.R.D. 79-6 (1979), application for extraordinary writs denied sub nom. United States v. James L. Watson, Judge, United States Customs Court; Michelin Tire Corporation, Party-in-Interest, 66 CCPA -, C.A.D. 1230 (1979). Accordingly, I have carefully reviewed the entire administrative record transmitted to the Court by the Commission, and not merely the Statement of Reasons. OPINION I Our Appellate Court has repeatedly stressed the broad discretionary authority vested in the Commission to determine the existence or likelihood of injury by reason of LTFV imports and the limited standard of judicial review applicable to the Commission’s determinations. City Lumber Co. et al. v. United States, 457 F.2d 991, 59 CCPA 89, C.A.D. 1045 (1972); Imbert Imports, Inc., et al. v. United States, 475 F.2d 1189, 60 CCPA 123, C.A.D. 1094 (1973), and cases cited therein. In City Lumber, the Court of Customs and Patent Appeals articulated the standard of judicial review applicable to the Commission’s injury determinations under the Antidumping Act as follows (457 F.2d at 994, 59 CCPA at 92): As the Appellate Term opinion observes, under the Antidumping Act Congress delegated to the Commission a broad discretionary power to determine whether an industry is being, or is likely to be, injured by the sale of imports at less than fair value. The courts have a very limited power of review over the Commission’s determinations. It is not the judicial function to review or" }, { "docid": "686274", "title": "", "text": "due consideration to all written submissions from interested parties, evidence adduced at the hearing, and all factual information obtained by the Commission’s staff from questionnaires, personal interviews, and other sources”. Id. No question has been raised concerning plaintiffs’ compliance with the administrative prerequisites to the initiation of a civil action prescribed by 19 U.S.C. § 1516(a) and (c). During the discovery phase of this litigation, defendant moved for a protective order seeking, among other things, to prohibit plaintiffs from conducting discovery into matters beyond the Commission’s notice of investigation and hearing and the Commission’s negative injury determination and Statement of Reasons. The defendant’s motion was decided by this court on June 27, 1978 culminating in an order which, in pertinent part, reads (80 Cust.Ct. 252, 253-54, C.R.D. 78-5 (1978)): 2. That the Secretary of the United States International Trade Commission, Kenneth R. Mason, shall prepare and transmit to Joseph E. Lombardi, Clerk of the United States Customs Court, on or before July 28, 1978, the following: (1) a certified copy of the transcript of proceedings and exhibits introduced before the Commission in investigation AA1921141; (2) certified copies of all written submissions, questionnaires, reports and all other documents relating to investigation AA1921-141; and (3) all other things in the files of the Commission relating to the investigation. Cf. Judge Maletz’ order in Pasco Terminals, Inc. v. United States, 80 Cust.Ct. 249, C.R.D. 78-3 (1978), and also his unpublished order in the same case entered on May 8, 1978. See also my order in Sprague Electric Company v. United States (Capar Components Corp., Party-in-Interest), 80 Cust.Ct. 256, C.R.D. 78-7 (1978), entered concurrently herewith. 3. That denial of defendant’s present motion for a protective order shall be without prejudice to renewal respecting any documents or things that were received by the Commission on a confidential basis or are otherwise privileged. 4. That the basis of this order is to enable the court to determine whether or not the Commission’s finding of injury was, among other things, arbitrary, an abuse of discretion, or otherwise contrary to law. See, e. g., Camp v. Pitts, 411" } ]

[ { "docid": "17506646", "title": "", "text": "of moral turpitude because it “involves readiness to do evil and is an offense that grievously offends the moral code of mankind in its inherent nature,” citing to People v. Zataray, 173 Cal.App.3d 390, 219 Cal.Rptr. 33, 39 (1985). It therefore held that Castrijon was ineligible for cancellation of removal. Castrijon now petitions for review. Analysis “The determination whether a conviction under a criminal statute is categorically a [crime of moral turpitude] involves two steps, to which different standards of review apply.” Uppal v. Holder, 605 F.3d 712, 714 (9th Cir.2010); see also Marmolejo-Campos v. Holder, 558 F.3d 903, 907-11 (9th Cir.2009) (en banc) (clarifying standard of review). The first step is to identify the elements of the statute of conviction. See Uppal, 605 F.3d at 714. “Because ‘[t]he BIA has no special expertise by virtue of its statutory responsibilities in construing state or federal criminal statutes,’ we review its conclusion in that regard de novo.” Id. (quoting Marmolejo-Campos, 558 F.3d at 907). The second step is to compare the elements of the statute of conviction to the generic definition of a crime of moral turpitude and decide whether the conviction meets that definition. See id. “Because the BIA does have expertise in making this determination, we defer to its conclusion if warranted, following the Chevron framework if the decision is a published decision (or an unpublished decision directly controlled by a published decision interpreting the same statute), and following the Skidmore framework if the decision is unpublished (and not directly controlled by any published decision interpreting the same statute).” Id.; see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). I. We turn to the first step of our analysis: identifying the elements of the statute of conviction. Castrijon was convicted of attempted simple kidnapping in violation of CPC § 207(a). That statute provides: Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or" } ]

[ { "docid": "9281384", "title": "", "text": "based upon guilty pleas. The Department of Homeland Security (DHS) ultimately alleged that those were CIMTs. As a result, he was removable because he had been convicted of \"two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct.\" 8 U.S.C. § 1227(a)(2)(A)(ii). On March 15, 2016, in a written decision, the Immigration Judge (IJ) agreed that on the basis of those convictions, Garcia was removable. See id. The IJ also denied Garcia's application for cancellation of removal. See 8 U.S.C. § 1229b(a). On August 18, 2016, the BIA also agreed that Garcia's crimes were CIMTs. This petition followed. JURISDICTION AND STANDARDS OF REVIEW We have jurisdiction pursuant to 8 U.S.C. § 1252. Where, as here, the BIA agrees with the IJ's reasoning, we review both decisions. See Kumar v. Holder , 728 F.3d 993, 998 (9th Cir. 2013) ; see also Ai Jun Zhi v. Holder , 751 F.3d 1088, 1091 (9th Cir. 2014). Whether a crime is a CIMT is a question of law. See Uppal v. Holder , 605 F.3d 712, 714 (9th Cir. 2010). We review \"de novo the BIA's determination of purely legal questions, including the BIA's interpretation of the Immigration and Nationality Act.\" Lopez v. INS , 184 F.3d 1097, 1099 (9th Cir. 1999). However, we do so with appropriate deference. See, e.g. , Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) ; Skidmore v. Swift & Co. , 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944) ; see also Castrijon-Garcia v. Holder , 704 F.3d 1205, 1208 (9th Cir. 2013) ; Edu v. Holder , 624 F.3d 1137, 1142-43 (9th Cir. 2010). DISCUSSION In order to decide if a conviction was for a CIMT we must determine the elements of the crime under the law of the state where a person was convicted. Here, of course, that is the law of the State of Oregon regarding theft. Then, we must see if that meets the definition of a CIMT" }, { "docid": "23036193", "title": "", "text": "examine “whether the full range of conduct encompassed by the criminal statute constitutes a crime of moral turpitude.” See Mendoza, 623 F.3d at 1302. If the full range of conduct under the statute fits the definition of a crime involving moral turpitude, then any conviction under the statute can subject an alien to removability. As we explained in Marmolejo-Campos v. Holder, 558 F.3d 903, 907 (9th Cir.2009) (en banc), a two-step inquiry applies to a determination of the proper weight to give the BIA’s conclusion that a particular crime is (or is not) a crime involving moral turpitude. First, after the BIA determines the offense the petitioner has been convicted of, the BIA must interpret the applicable state statute to ascertain the elements of the offense. Id. Because the BIA has no special expertise in the interpretation of state criminal statutes, we review this determination de novo. See id. Second, once the BIA has identified the relevant offense elements, it must determine whether the offense constitutes a crime involving moral turpitude as defined by the INA. Id. at 907. To do so, the BIA should assess “the character, gravity, and moral significance of the conduct.” Id. at 910. We have recognized the BIA’s special role in interpreting the INA, and as a result, we will afford deference to the BIA’s conclusion regarding whether the statute under which Singh was convicted categorically criminalizes turpitudinous conduct. Id. at 908. The level of deference in turn depends on the character of the BIA’s opinion. If the BIA issues or relies on a precedential determination to conclude that a particular crime is a crime involving moral turpitude, we accord it Chevron deference, see Chevron U.S.A. Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); otherwise, we defer to the BIA’s determination only to the extent that it has the power to persuade (i.e. Skidmore deference), see Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). See Marmolejo-Campos, 558 F.3d at 909; see also Saavedra-Figueroa v. Holder, 625 F.3d 621," }, { "docid": "2451345", "title": "", "text": "plea agreement for his endangerment conviction. Neither the charging document nor the plea agreement provides information about Olivas-Motta’s underlying conduct. The plea agreement states only that Olivas-Motta “committed endangerment by recklessly endangering another person with a substantial risk of imminent death,” and that he was pleading guilty to a class 6 felony. The government also put into evidence before the IJ three police reports containing information about Oli-vas-Motta’s conduct. Relying on the police reports pursuant to Matter of Silvar-Trevino, 24 I. & N. Dec. 687 (A.G.2008), the IJ concluded that Olivas-Motta had been “convicted of’ a CIMT and was therefore removable. She denied cancellation of removal. The BIA dismissed Olivas-Motta’s appeal. It relied on the police reports pursuant to Silvar-Trevino to conclude that Oli-vas-Motta had been convicted of a CIMT. Olivas-Motta petitioned for review. II. Jurisdiction and Standard of Review We have jurisdiction to review questions of law in a petition for review of a removal order. 8 U.S.C. § 1252(a)(2)(D). Latter-Singh v. Holder, 668 F.3d 1156, 1159 (9th Cir.2012). Whether a conviction is for a CIMT is a question of law. Id. We review questions of law de novo. Romero-Mendoza v. Holder, 665 F.3d 1105, 1107 (9th Cir.2011). III. Discussion We evaluate the Attorney General’s decision in Silva-Trevino under the familiar framework of Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). When we review an agency’s construction of a statute that it administers, the first step under Chevron is to determine “whether Congress has directly spoken to the precise question at issue.” Id. at 842, 104 S.Ct. 2778. “If the intent of Congress is clear, that is the end of the matter.... ” Id. In that event, courts and agencies alike “must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. If the intent of Congress is unclear, we move to the next step, which is to determine whether the agency’s interpretation of the text “is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. If the agency’s" }, { "docid": "21212458", "title": "", "text": "was not charged with, and he did not otherwise admit to, an intent permanently to deprive the victim of her property. He further argues that the BIA erred insofar as it inferred from his plea colloquy transcript that he intended a permanent taking. We agree and hold that the crime Wala pled to does not constitute a CIMT. I. Jurisdiction and Standard of Review Odinarily, this Court lacks jurisdiction to review orders of removal based on an alien’s conviction for certain offenses, including CIMTs. See 8 U.S.C. § 1252(a)(2)(C). We retain jurisdiction, however, to consider “questions of law,” 8 U.S.C. § 1252(a)(2)(D), including whether an alien’s conviction qualifies as a removable offense under the immigration laws. See Mizrahi v. Gonzales, 492 F.3d 156, 157-58 (2d Cir.2007); Blake v. Gonzales, 481 F.3d 152, 155-56 (2d Cir.2007). Where, as here, the BIA adopts the IJ’s reasoning and offers additional commentary, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We accord Chevron deference to the BIA’s construction of ambiguous statutory terms in immigration law, such as “moral turpitude.” See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also Michel v. INS, 206 F.3d 253, 262-65 (2d Cir.2000) (deferring to the BIA’s rule that crimes for which knowledge is an element are generally CIMTs). “However, as we recognized in Michel, 206 F.3d at 262, the BIA has no expertise in construing ... state criminal statutes, and so we review de novo the BIA’s finding that a petitioner’s crime of conviction contains those elements which have been properly found to constitute a CIMT.” Gill v. INS, 420 F.3d 82, 89 (2d Cir.2005). Thus, in this case, we defer to the BIA’s view that larceny involving a permanent taking amounts to a CIMT, but we review de novo whether Wala’s conviction for third-degree burglary under Connecticut law falls within this category. II. Wala’s Alleged CIMT With these principles in mind, we turn to whether Wala’s conviction for burglary" }, { "docid": "22920600", "title": "", "text": "or conspiracy to commit such a crime.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). Section 1182 provides for certain exceptions not relevant here. See 8 U.S.C. § 1182(2)(A)(i)(II). We afford Chevron deference to the BIA’s construction of undefined statutory-terms such as “moral turpitude” because of the BIA’s expertise applying and construing the immigration laws. See Gill v. INS, 420 F.3d 82, 89 (2d Cir.2005) (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Because the BIA has no particular expertise in construing federal and state criminal statutes, we review de novo the BIA’s finding that a particular crime of conviction falls within its definition of a CIMT. Gill, 420 F.3d at 89; Michel v. INS, 206 F.3d 253, 262 (2d Cir.2000). Our review, however, is circumscribed by the BIA’s “categorical” approach to whether an offense qualifies as a CIMT, which focuses the inquiry on “the intrinsic nature of the offense rather than on the factual circumstances surrounding any particular violation.” Gill, 420 F.3d at 89 (quoting Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir.2001)). The BIA has explained that the term “moral turpitude” generally encompasses: conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong or malum in se, so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude. Among the tests to determine if a crime involves moral turpitude is whether the act is accompanied by a vicious motive or a corrupt mind. Hamdan v. INS, 98 F.3d 183, 186 (5th Cir.1996) (citations omitted); accord United States ex rel. Guarino v. Uhl, 107 F.2d 399, 400 (2d Cir.1939) (L. Hand, J.) (holding that an offense must be “necessarily or inherently immoral” to constitute a CIMT under the immigration laws). Applying this general concept to cases involving" }, { "docid": "2420540", "title": "", "text": "cancellation. As in his I-360 petition, he again argued that he was entitled to a section 212(h) waiver absolving the disqualifying effect of his CIMT convictions. On September 27, 2010, the IJ issued an oral decision denying Garcia-Mendez’s application for special rule cancellation. Upon determining that Garcia-Mendez’s past convictions qualified as CIMTs, the IJ reasoned he was facially ineligible for special rule cancellation. The IJ then rejected Gareia-Mendez’s argument that he was entitled to apply for a waiver of inadmissibility under section 212(h). The IJ ordered Gareia-Mendez removed to Mexico. Due to a transcription error affecting the September 27, 2010 decision, the IJ issued a new decision on October 11, 2011 essentially repeating the substance of the prior decision. Gareia-Mendez appealed to the BIA, which affirmed the IJ’s rulings in an unpublished decision. We have jurisdiction over Garcia-Mendez’s petition for review under 8 U.S.C. §§ 1252(a)(1), (a)(2)(D). II. STANDARD OF REVIEW Generally, when the BIA addresses a question in an unpublished decision, the agency’s ruling is not entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1013-14 (9th Cir.2006). If, on the other hand, the BIA has interpreted an ambiguous provision of the Immigration and Nationality Act (“INA”) in a published precedential decision, we must apply Chevron deference, so long as the agency’s decision is based on a permissible construction of the statute. Negusie v. Holder, 555 U.S. 511, 516-17, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009). This rule applies equally to an unpublished BIA order which relies on a directly-controlling, prece-dential agency decision. Uppal v. Holder, 605 F.3d 712, 714 (9th Cir.2010). An agency’s interpretation of an ambiguous statute will be permissible “unless arbitrary, capricious, or manifestly contrary to the statute.” Wilderness Society v. U.S. Fish & Wildlife Serv., 353 F.3d 1051, 1059 (9th Cir.2003) (en banc) (internal quotation marks omitted). If, however, “the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the" }, { "docid": "18050253", "title": "", "text": "CIMT. Specifically, the BIA relied on the Attorney General’s opinion in Matter of Silva-Trevino, 24 I. & N. Dec. 687 (Attorney Gen.2008), in determining that felony endangerment in Arizona requires “some form of scienter” and “reprehensible conduct.” The BIA rejected Leal’s contention that felony endangerment lacked the requisite scienter based on recklessness in Arizona encompassing unawareness of risk due to voluntary intoxication and that the conduct was not sufficiently reprehensible based on the lack of actual harm. Following the BIA’s opinion, Leal filed his timely petition for review with this court. II. Standard of Review While 8 U.S.C. § 1252(a)(2)(C) precludes judicial review of a “final order of removal against a [person] who is removable” for committing a criminal offense, we have jurisdiction to review questions of law. Latter-Singh v. Holder, 668 F.3d 1156, 1159 (9th Cir.2012). “Whether a conviction is for a CIMT is a question of law.” Olivas-Motta v. Holder, 746 F.3d 907, 908 (9th Cir.2013). “The determination whether a conviction under a criminal statute is categorically a crime of moral turpitude involves two steps, to which different standards of review apply.” Castrijon-Garcia v. Holder, 704 F.3d 1205, 1208 (9th Cir.2013) (internal quotation marks, bracket and citation omitted). First, we determine the elements of the underlying crime, reviewing de novo the BIA’s conclusions. Vinh Tan Nguyen v. Holder, 763 F.3d 1022, 1027 (9th Cir.2014). Second, we “compare the elements of the statute of conviction to the generic definition of a crime of moral turpitude and decide whether the conviction meets that definition.” Ceron v. Holder, 747 F.3d 773, 778 (9th Cir.2014) (en banc) (internal quotation marks and citation omitted). We defer to the BIA’s conclusion on this second issue “following the Chevron framework if the decision is published or directly controlled by a published decision.” Id.; see Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, if the BIA errs at step one in determining the elements of the underlying crime, “we owe its CIMT analysis at step two no deference.” Hernandez-Cruz v. Holder, 651 F.3d 1094," }, { "docid": "22648775", "title": "", "text": "Boyd, 208 F.3d 638, 652 (7th Cir.2000) (finding an inter-circuit consensus that courts of appeals “may, when justice requires it, raise critical issues of law sua sponte”), vacated on other grounds, 531 U.S. 1135, 121 S.Ct. 1072, 148 L.Ed.2d 949 (2001); Cruz v. Me- lecio, 204 F.3d 14, 22 n. 7 (1st Cir.2000) (“Notwithstanding that the parties did not raise the issues that impel us to this course either to the district court or on this appeal, we have the power to do so sua sponte.”); United States v. Heater, 63 F.3d 311, 331 n. 5 (4th Cir.1995) (“Although [petitioner] did not raise the Ex Post Facto argument himself, we find it within our discretion to consider this constitutional concern sua sponte.”), cert. denied, 516 U.S. 1083, 116 S.Ct. 796, 133 L.Ed.2d 744 (1996). II. Standard of Review Because the BIA has expertise applying and construing immigration law, we afford Chew'on deference to its construction of undefined statutory terms such as “moral turpitude.” See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Michel v. INS, 206 F.3d 253, 262-65 (2d Cir.2000) (deferring to BIA’s rule that crimes of which knowledge is an element are generally CIMTs). However, as we recognized in Michel, 206 F.3d at 262, the BIA has no expertise in construing federal and state criminal statutes, and so we review de novo the BIA’s finding that a petitioner’s crime of conviction contains those elements which have been properly found to constitute a CIMT. See also Sutherland v. Reno, 228 F.3d 171, 174 (2d Cir.2000). Thus, in this case, we defer to the BIA’s view that recklessness, in combination with serious resulting bodily injury and use of a deadly weapon, amounts to a CIMT, but we review de novo the BIA’s finding that “attempted reckless assault” under New York law contains these elements. III. Gill’s alleged CIMT We turn now to the question of whether Gill’s conviction for attempted reckless assault was a CIMT such that he was removable under 8 U.S.C. § 1227(a)(2)(A)(i). A. Definition of" }, { "docid": "2451346", "title": "", "text": "a CIMT is a question of law. Id. We review questions of law de novo. Romero-Mendoza v. Holder, 665 F.3d 1105, 1107 (9th Cir.2011). III. Discussion We evaluate the Attorney General’s decision in Silva-Trevino under the familiar framework of Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). When we review an agency’s construction of a statute that it administers, the first step under Chevron is to determine “whether Congress has directly spoken to the precise question at issue.” Id. at 842, 104 S.Ct. 2778. “If the intent of Congress is clear, that is the end of the matter.... ” Id. In that event, courts and agencies alike “must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. If the intent of Congress is unclear, we move to the next step, which is to determine whether the agency’s interpretation of the text “is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778. If the agency’s interpretation is based on a permissible construction, a court must give deference to that interpretation. In Silva-Trevino, the Attorney General interpreted two provisions of the Immigration and Naturalization Act (“INA”), one dealing with inadmissibility and the other dealing with removability. In both provisions, a criterion for inadmissibility or re-movability is “conviction of’ one or more CIMTs. The admissibility provision states: [A]ny alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of ... a crime involving moral turpitude ... is inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i)(I) (emphasis added). The removability provision states: (i) Any alien who ... is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status ...) after the date of admission, and is convicted of a crime for which a sentence of one year or longer may be imposed, is deportable. (ii) ... Any alien who at any time after admission is convicted of two or more crimes involving moral" }, { "docid": "12466062", "title": "", "text": "the substantial evidence standard, the agency’s factual findings are “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). While this standard is highly deferential, it does not admit “misstatement of the facts in the record [ ]or bald speculation or caprice.” Shu Wen Sun v. BIA, 510 F.3d 377, 380 (2d Cir.2007) (internal quotation marks omitted). As for legal conclusions, where the BIA has issued a precedential opinion, our de novo review is limited to determining whether the BIA’s legal interpretations satisfy the requirements for deference under Chevron, U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Baraket v. Holder, 632 F.3d 56, 58 (2d Cir.2011). Non-precedential opinions, such as the BIA opinion here, cannot claim Chevron deference. See Mei Juan Zheng v. Holder, 672 F.3d 178, 184 (2d Cir.2012). Our court has not yet decided whether nonprecedential BIA opinions are entitled to deference pursuant to Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), which affords agency interpretations “respect according to [their] persuasiveness,” Sai Kwan Wong v. Doar, 571 F.3d 247, 260 (2d Cir.2009) (internal quotation marks omitted). See Dawkins v. Holder, 762 F.3d 247, 249 (2d Cir.2014) (observing that question of Skidmore deference to unpublished BIA decisions remains open). We need not conclusively answer the question here because the BIA’s legal reasoning is infected by fact-finding not supported by substantial evidence and, therefore, would not warrant Skidmore deference even if it applied. See Gonzales v. Oregon, 546 U.S. 243, 269, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006) (stating that “under Skidmore,” courts follow agency’s interpretation only to “extent it is persuasive”). As relevant here, whether certain events will or might occur in the future is a question of fact. See Hui Lin Huang v. Holder, 677 F.3d 130, 134 (2d Cir.2012). On the other hand, whether certain events, if they occurred, would constitute persecution as defined by the INA is a question of law. See id. at 136. Further, whether a given likelihood of persecution satisfies" }, { "docid": "22241104", "title": "", "text": "any status.” The BIA found that Vasquez was not “admitted in any status” until May 17, 2001 (the date she was granted LPR status). Vasquez, therefore, did not meet the seven years of continuous residence requirement for cancellation of removal. The BIA limited Garcia-Quintero’s applicability to those aliens admitted into the Family Unity Program. II. Standard of Review We review de novo “the BIA’s determination of purely legal questions, including the BIA’s interpretation of the Immigration and Nationality Act.” Lopez v. INS, 184 F.3d 1097, 1099 (9th Cir.1999). We apply Chevron deference to the Attorney General’s interpretations of ambiguous immigration statutes, if the agency’s decision is a published decision. See Marmolejo-Campos v. Holder, 558 F.3d 903, 909 (9th Cir.2009). However, we need not defer to the BIA if the statute is unambiguous. See id. at 908; see also INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). We follow “the Skidmore framework if the decision is unpublished (and not directly controlled by any published decision interpreting the same statute).” Uppal v. Holder, 605 F.3d 712, 714 (9th Cir.2010) (citing Marmolejo-Campos, 558 F.3d at 909-11). III. Discussion In order to be eligible for cancellation of removal, a legal permanent resident alien (who is inadmissible or deportable) must meet the requirements set forth in 8 U.S.C. § 1229b(a): The Attorney General may cancel removal in the case of an alien who is inadmissible or deportable from the United States if the alien— (1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United States continuously for 7 years after having been admitted in any status, and (3) has not been convicted of any aggravated felony. In this case, we must only decide at what point Vasquez was “admitted in any sta tus” under 8 U.S.C. § 1229b(a)(2). The other requirements of the statute are not disputed. Specifically, we must decide whether having received an approved Form 1-130 petition from the USCIS constitutes admission “in any status.” In making this determination, we first consider whether Vasquez was" }, { "docid": "3621683", "title": "", "text": "1017. “Under the categorical approach, we ask whether the full range of conduct encompassed by the criminal statute constitutes a crime of moral turpitude.” Morales, 478 F.3d at 978 (internal quotation marks, alteration, and citation omitted). Because 8 U.S.C. § 1182(a)(2)(A)(i)(I) does not specifically define moral turpitude and does not specify rules for determining whether a crime involves moral turpitude, we determine whether a state crime involves moral turpitude by comparing it with crimes that have previously been found to involve moral tur pitude. Nunez v. Holder, 594 F.3d 1124, 1131 & n. 4 (9th Cir.2010). This involves comparing the elements of the state crime with the elements of crimes already determined to involve moral turpitude. See Cuevas-Gaspar, 430 F.3d at 1018-19 (comparing Washington burglary statute requiring proof of “intent to commit any crime” with BIA determination that burglary is only a CIMT “if accompanied by the intent to commit a morally turpitudinous act after entry.”). “[I]n determining the categorical reach of a state crime, we consider not only the language of the state statute, but also the interpretation of that language in judicial opinions.” Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir.2006). If the statute proscribes only conduct that involves moral turpitude, we do not proceed to the modified categorical approach. See Marmolejo-Campos, 558 F.3d at 912. Generally, “once the conduct proscribed by the petitioner’s statute of conviction is identified (e.g., fraud), the question whether such conduct involves ‘moral turpitude’ is not in doubt and thus merits little or no analysis from the court.” Id. at 908 n. 7. Also, because Congress’s intent is not clear regarding the definition of moral turpitude, we apply Chevron deference to the BIA’s precedential case-by-case adjudications determining which crimes involve moral turpitude. Id. at 908-09. The BIA’s interpretation is entitled to deference so long as it is “a permissible construction of the statute.” Id. at 909 (quoting Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). See also Chevron, 467 U.S. at 845, 104 S.Ct. 2778 (The question is whether the" }, { "docid": "4054604", "title": "", "text": "the immigration fraud issue. Uppal timely filed this petition for review. JURISDICTION We have jurisdiction to review this final order of removal under 8 U.S.C. § 1252(a)(1). Although our jurisdiction to review orders of removal against “criminal aliens” is limited by 8 U.S.C. § 1252(a)(2)(C), we retain jurisdiction to review constitutional challenges and questions of law. See 8 U.S.C. § 1252(a)(2)(C), (a)(2)(D). Whether a crime involves moral turpitude is a question of law not subject to the jurisdiction-stripping provision of § 1252(a)(2)(C). Tall v. Mukasey, 517 F.3d 1115, 1118-19 (9th Cir.2008). DISCUSSION The determination whether a conviction under a criminal statute is categorically a CIMT involves two steps, to which different standards of review apply. See Marmolejo-Campos v. Holder, 558 F.3d 903, 907 (9th Cir.2009) (en banc). First, the BIA must identify the elements of the statute necessary to secure a conviction. Because “[t]he BIA has no special expertise by virtue of its statutory responsibilities in construing state or federal criminal statutes,” we review its conclusion in that regard de novo. Id. at 907. Second, once it identifies the elements of the statute, the BIA must compare those elements to the generic definition of a crime involving moral turpitude and decide whether they meet the definition. Id. at 908; see also Morales-Garda v. Holder, 567 F.3d 1058, 1064 (9th Cir.2009). Because the BIA does have expertise in making this determination, we defer to its conclusion if warranted, following the Chevron framework if the decision is a published decision (or an unpublished decision directly controlled by a published decision interpreting the same statute), and following the Skidmore framework if the decision is unpublished (and not directly controlled by any published decision interpreting the same statute). Marmolejo-Campos, 558 F.3d at 909-11; see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). As the decision here is of the latter variety, our deference analysis on the second prong of the CIMT inquiry must proceed under" }, { "docid": "21212459", "title": "", "text": "to the BIA’s construction of ambiguous statutory terms in immigration law, such as “moral turpitude.” See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also Michel v. INS, 206 F.3d 253, 262-65 (2d Cir.2000) (deferring to the BIA’s rule that crimes for which knowledge is an element are generally CIMTs). “However, as we recognized in Michel, 206 F.3d at 262, the BIA has no expertise in construing ... state criminal statutes, and so we review de novo the BIA’s finding that a petitioner’s crime of conviction contains those elements which have been properly found to constitute a CIMT.” Gill v. INS, 420 F.3d 82, 89 (2d Cir.2005). Thus, in this case, we defer to the BIA’s view that larceny involving a permanent taking amounts to a CIMT, but we review de novo whether Wala’s conviction for third-degree burglary under Connecticut law falls within this category. II. Wala’s Alleged CIMT With these principles in mind, we turn to whether Wala’s conviction for burglary in the third degree was a CIMT such that he was removable under 8 U.S.C. § 1182(a) (2)(A) (i) (I). A. Definition of a CIMT An alien is removable under 8 U.S.C. § 1182(a)(2)(A)(i)(I) if he has been “convicted of, or ... admits having committed, or ... admits committing acts which constitute the essential elements of ... a crime involving moral turpitude.” Traditionally, the BIA has defined a CIMT as “conduct that shocks the public conscience as being inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between per sons or to society in general.” Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir.2006) (internal quotation marks omitted); see also In re M-, 2 I. & N. Dec. 721, 723 (B.I.A.1946). The BIA has held that burglary offenses “may or may not involve moral turpitude, the determinative factor being whether the crime intended to be committed at the time of entry or prior to the breaking out involves moral turpitude.” In re M-, 2 I. & N." }, { "docid": "9281383", "title": "", "text": "FERNANDEZ, Circuit Judge: Jose Maria Garcia-Martinez, a native and citizen of Mexico and a lawful permanent resident of the United States, petitions for review of the Board of Immigration Appeals' (BIA) determination that he was removable because he had been convicted of two (actually three) crimes involving moral turpitude (hereafter \"CIMT\"). See 8 U.S.C. § 1227(a)(2)(A)(ii). Those were crimes of theft committed in the State of Oregon. See Or. Rev. Stat. § 164.015 ; see also Or. Rev. Stat. § 164.005(1)(a), (2)(a). We grant the petition. BACKGROUND Garcia became a lawful permanent resident of the United States on December 1, 1990. Thereafter, he incurred three convictions that are relevant to this petition for review: a conviction on March 8, 2007, for second degree theft in violation of Oregon Revised Statutes section 164.045 ; a conviction on December 31, 2012, for third degree theft in violation of Oregon Revised Statutes section 164.043 ; and a conviction on March 7, 2013, for third degree theft in violation of Oregon Revised Statutes section 164.043. All three convictions were based upon guilty pleas. The Department of Homeland Security (DHS) ultimately alleged that those were CIMTs. As a result, he was removable because he had been convicted of \"two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct.\" 8 U.S.C. § 1227(a)(2)(A)(ii). On March 15, 2016, in a written decision, the Immigration Judge (IJ) agreed that on the basis of those convictions, Garcia was removable. See id. The IJ also denied Garcia's application for cancellation of removal. See 8 U.S.C. § 1229b(a). On August 18, 2016, the BIA also agreed that Garcia's crimes were CIMTs. This petition followed. JURISDICTION AND STANDARDS OF REVIEW We have jurisdiction pursuant to 8 U.S.C. § 1252. Where, as here, the BIA agrees with the IJ's reasoning, we review both decisions. See Kumar v. Holder , 728 F.3d 993, 998 (9th Cir. 2013) ; see also Ai Jun Zhi v. Holder , 751 F.3d 1088, 1091 (9th Cir. 2014). Whether a crime is a CIMT is a question of law. See Uppal v." }, { "docid": "23036194", "title": "", "text": "INA. Id. at 907. To do so, the BIA should assess “the character, gravity, and moral significance of the conduct.” Id. at 910. We have recognized the BIA’s special role in interpreting the INA, and as a result, we will afford deference to the BIA’s conclusion regarding whether the statute under which Singh was convicted categorically criminalizes turpitudinous conduct. Id. at 908. The level of deference in turn depends on the character of the BIA’s opinion. If the BIA issues or relies on a precedential determination to conclude that a particular crime is a crime involving moral turpitude, we accord it Chevron deference, see Chevron U.S.A. Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); otherwise, we defer to the BIA’s determination only to the extent that it has the power to persuade (i.e. Skidmore deference), see Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). See Marmolejo-Campos, 558 F.3d at 909; see also Saavedra-Figueroa v. Holder, 625 F.3d 621, 625 (9th Cir.2010). The decision here falls into the latter category, so we apply Skidmore deference to the second part of the moral turpitude analysis. Our deference will depend on “the thoroughness evident in [the BIA’s] consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements.” Skidmore, 323 U.S. at 140, 65 S.Ct. 161. A We begin by identifying the elements of Singh’s crime of conviction. Singh was convicted under California Penal Code § 422, which provides, in relevant part: Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that" }, { "docid": "4054605", "title": "", "text": "once it identifies the elements of the statute, the BIA must compare those elements to the generic definition of a crime involving moral turpitude and decide whether they meet the definition. Id. at 908; see also Morales-Garda v. Holder, 567 F.3d 1058, 1064 (9th Cir.2009). Because the BIA does have expertise in making this determination, we defer to its conclusion if warranted, following the Chevron framework if the decision is a published decision (or an unpublished decision directly controlled by a published decision interpreting the same statute), and following the Skidmore framework if the decision is unpublished (and not directly controlled by any published decision interpreting the same statute). Marmolejo-Campos, 558 F.3d at 909-11; see also Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944). As the decision here is of the latter variety, our deference analysis on the second prong of the CIMT inquiry must proceed under Skidmore. 1. The Elements of § 268 We turn to the first step of the inquiry: identifying the elements of Canada Criminal Code § 268 (aggravated assault). A person commits “aggravated assault” under § 268 of the Canada Criminal Code if he “wounds, maims, disfigures, or endangers the life of’ another. Can.Crim. Code, R.S.C., ch. C-46 § 268(1) (1985). As the statute thus requires either injury or the “endanger[ment] of the life of’ the victim, it can be satisfied even if no actual injury occurs. Canadian ease law interpreting § 268 leaves no doubt that there need be no actual harm. As the Canadian Supreme Court explained: “There is no prerequisite that any harm must actually have resulted. This first requirement of § 268(1) is satisfied by the significant risk to the li[fe] of the [victim] occasioned by the [application of force].” R. v. Cuerrier, [1998] 2 S.C.R. 371, ¶ 95 (Can.). Although it is difficult to tell for sure from the BIA’s terse analysis whether the BIA correctly identified the elements of § 268," }, { "docid": "9281385", "title": "", "text": "Holder , 605 F.3d 712, 714 (9th Cir. 2010). We review \"de novo the BIA's determination of purely legal questions, including the BIA's interpretation of the Immigration and Nationality Act.\" Lopez v. INS , 184 F.3d 1097, 1099 (9th Cir. 1999). However, we do so with appropriate deference. See, e.g. , Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 843-44, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984) ; Skidmore v. Swift & Co. , 323 U.S. 134, 140, 65 S.Ct. 161, 164, 89 L.Ed. 124 (1944) ; see also Castrijon-Garcia v. Holder , 704 F.3d 1205, 1208 (9th Cir. 2013) ; Edu v. Holder , 624 F.3d 1137, 1142-43 (9th Cir. 2010). DISCUSSION In order to decide if a conviction was for a CIMT we must determine the elements of the crime under the law of the state where a person was convicted. Here, of course, that is the law of the State of Oregon regarding theft. Then, we must see if that meets the definition of a CIMT for purposes of 8 U.S.C. § 1227(a)(2)(A)(ii). In the State of Oregon, a person is guilty of theft \"when, with intent to deprive another of property or to appropriate property to the person ..., the person: (1) [t]akes, appropriates, obtains or withholds such property from an owner thereof.\" Or. Rev. Stat. § 164.015. \" 'Appropriate' ... means to: ... Exercise control over property of another, ... permanently or for so extended a period or under such circumstances as to acquire the major portion of the economic value or benefit of such property....\" Id. § 164.005(1)(a). Similarly: \" 'Deprive' ... means to: ... Withhold property of another or cause property of another to be withheld from that person permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to that person....\" Id. § 164.005(2)(a). Notably, the statutory scheme does not require a permanent taking of the property in question; something less than that will do. In fact, it can be quite a bit" }, { "docid": "18050254", "title": "", "text": "two steps, to which different standards of review apply.” Castrijon-Garcia v. Holder, 704 F.3d 1205, 1208 (9th Cir.2013) (internal quotation marks, bracket and citation omitted). First, we determine the elements of the underlying crime, reviewing de novo the BIA’s conclusions. Vinh Tan Nguyen v. Holder, 763 F.3d 1022, 1027 (9th Cir.2014). Second, we “compare the elements of the statute of conviction to the generic definition of a crime of moral turpitude and decide whether the conviction meets that definition.” Ceron v. Holder, 747 F.3d 773, 778 (9th Cir.2014) (en banc) (internal quotation marks and citation omitted). We defer to the BIA’s conclusion on this second issue “following the Chevron framework if the decision is published or directly controlled by a published decision.” Id.; see Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). However, if the BIA errs at step one in determining the elements of the underlying crime, “we owe its CIMT analysis at step two no deference.” Hernandez-Cruz v. Holder, 651 F.3d 1094, 1106 (9th Cir.2011). III. Discussion A. Felony Endangerment in Arizona We turn to the first step of our analysis: determining the elements of the statute of conviction. Leal was convicted of felony endangerment under Arizona Revised Statute § 13-1201 (2006), which provided as follows: A. A person commits endangerment by recklessly endangering another person with a substantial risk of imminent death or physical injury. B. Endangerment involving a substantial risk of imminent death is a class 6 felony. In all other cases, it is a class 1 misdemeanor. Based on the clear language of the statute, felony endangerment requires the perpetrator to endanger another person recklessly with a substantial risk of imminent death. -Further, the Arizona Supreme Court has made clear that “substantial risk” for purposes of felony endangerment requires that the victim be placed “in actual substantial risk of imminent death.” State v. Carreon, 210 Ariz. 54, 107 P.3d 900, 909 (2005) (en banc) (internal quotation marks and citation omitted). Arizona has also statutorily defined the mens rea of recklessness as follows: “Recklessly” means," }, { "docid": "22920599", "title": "", "text": "section 1229b(b)(l)(C) because he had been convicted of a CIMT or section 1255(a)(2) because he was inadmissible. These are nondiscretionary judgements regarding Rodriguez’s eligibility for discretionary relief, and, therefore, we have jurisdiction to review both. See Sepulveda, 407 F.3d at 62-63. II. Cancellation of Removal A nonpermanent resident in removal proceedings may be eligible for cancellation of removal if he or she: (A) has been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date of such application; (B) has been a person of good moral character during such period; (C) has not been convicted of an offense under section 1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title, subject to paragraph (5); and (D) establishes that removal would result in exceptional and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. 8 U.S.C. § 1229b(b) (emphasis added). Section 1182 includes “a crime involving moral turpitude ... or an attempt or conspiracy to commit such a crime.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). Section 1182 provides for certain exceptions not relevant here. See 8 U.S.C. § 1182(2)(A)(i)(II). We afford Chevron deference to the BIA’s construction of undefined statutory-terms such as “moral turpitude” because of the BIA’s expertise applying and construing the immigration laws. See Gill v. INS, 420 F.3d 82, 89 (2d Cir.2005) (citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)). Because the BIA has no particular expertise in construing federal and state criminal statutes, we review de novo the BIA’s finding that a particular crime of conviction falls within its definition of a CIMT. Gill, 420 F.3d at 89; Michel v. INS, 206 F.3d 253, 262 (2d Cir.2000). Our review, however, is circumscribed by the BIA’s “categorical” approach to whether an offense qualifies as a CIMT, which focuses the inquiry on “the intrinsic nature of the offense rather than on the factual circumstances surrounding any particular violation.” Gill, 420 F.3d at 89 (quoting" } ]

[ { "docid": "22684256", "title": "", "text": "did so, relying on the nondiscrimination clause in the collective-bargaining agreement, but the arbitrator found that petitioner had been discharged for just cause. Petitioner then brought an action under Title VII of the Civil Rights Act of 1964 in Federal District Court based on the same facts that were before the arbitrator. The District Court granted summary judgment for the employer, holding that petitioner was bound by the prior adverse arbi-tral decision. The Court of Appeals affirmed. This Court reversed, concluding that an employee’s statutory right to a trial de novo under Title VII is not foreclosed by the prior submission of his discrimination claim to final arbitration under a collective-bargaining agreement. The Court found that in enacting Title VII, Congress had granted individual employees a nonwaivable, public law right to equal employment opportunities that was separate and distinct from the rights created through the “majoritarian processes” of collective bargaining. Id., at 51. Moreover, because Congress had granted aggrieved employees access to the courts, and because contractual grievance and arbitration procedures provided an inadequate forum for enforcement of Title VII rights, the Court concluded that Title VII claims should be resolved by the courts de novo. Respondents would distinguish Gardner-Denver on the ground that because petitioners’ FLSA claim is based on a dispute over wages and hours, subjects at the heart of the collective-bargaining process, their claim is particularly well suited to resolution through collectively bargained grievance and arbitration procedures. But this contention misper-ceives the nature of petitioners’ FLSA claim. The principal congressional purpose in enacting the Fair Labor Standards Act of 1938 was to protect all covered workers from substandard wages and oppressive working hours, “labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” 29 U. S. C. § 202 (a). In contrast to the Labor Management Relations Act, which was designed to minimize industrial strife and to improve working conditions by encouraging employees to promote their interests collectively, the FLSA was designed to give specific minimum protections to individual workers and to ensure that" } ]

[ { "docid": "2701449", "title": "", "text": "may require employees to arbitrate both contractual and statutory claims, collective-bargaining agreements simply require employees to arbitrate contractual claims. The defendants’ challenge to the plaintiffs Title VII claims would, in effect, require the court to hold that collective-bargaining agreements may require employees to arbitrate both contractual and statutory claims. Neither Gardner-Denver nor Gilmer supports this conclusion. First, the holding in Gardner-Denver was based on the assumption that the collective-bargaining process could, in some circumstances, pose a threat to the protection of individual statutory rights. The Court noted that collective bargaining is a “majoritarian process” that may subordinate the interests of individual employees to the good of union members as a group. This tension between individual and group interests, the Court concluded, should not be permitted to compromise statutory rights that Congress had conferred on individual employees under Title VII. See Gardner-Denver, 415 U.S. at 51, 94 S.Ct. at 1021; see also Barrentine, 450 U.S. at 742, 101 S.Ct. at 1445 (balancing of individual and collective interests might lead union to sacrifice statutorily granted benefits). The Court also observed in Gardner-Denver that labor arbitrators who conduct grievance procedures are charged with interpreting and applying private contracts, not federal statutes. In light of this lack of expertise and legal authority, the Court concluded that labor arbitrators should not be entrusted with the enforcement of employees’ rights under Title VII. See Gardner-Denver, 415 U.S. at 52-54, 94 S.Ct. at 1021-22; see also Barrentine, 450 U.S. at 743, 101 S.Ct. at 1446 (arbitrator “may lack the competence to decide the ultimate legal issue” and “may not have the contractual authority to do so”). In sum, the decision in Gardner-Denver was grounded in a concern about the dangers that collective-bargaining agreements might pose to individual employees’ statutory rights. There is nothing in Gilmer to suggest that the Court abandoned or even reconsidered its efforts to protect individual statutory rights from the give-and-take of the collective-bargaining process. It is true, of course, that Gilmer permits employees individually to enter contracts under which they agree to submit statutory claims to arbitration. Indeed, Gilmer apparently requires courts to" }, { "docid": "22716975", "title": "", "text": "Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence.” 415 U. S., at 49-50. We also noted that a labor arbitrator has authority only to resolve questions of contractual rights. Id., at 53-54. The arbitrator’s “task is to effectuate the intent of the parties” and he or she does not have the “general authority to invoke public laws that conflict with the bargain between the parties.” Id., at 53. By contrast, “in instituting an action under Title VII, the employee is not seeking review of the arbitrator’s decision. Rather, he is asserting a statutory right independent of the arbitration process.” Id., at 54. We further expressed concern that in collective-bargaining arbitration “the interests of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit.” Id., at 58, n. 19. Barrentine and McDonald similarly involved the issue whether arbitration under a collective-bargaining agreement precluded a subsequent statutory claim. In holding that the statutory claims there were not precluded, we noted, as in Gardner-Denver, the difference between contractual rights under a collective-bargaining agreement and individual statutory rights, the potential disparity in interests between a union and an employee, and the limited authority and power of labor arbitrators. There are several important distinctions between the Gardner-Denver line of cases and the case before us. First, those cases did not involve the issue of the enforceability of an agreement to arbitrate statutory claims. Rather, they involved the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statutory claims. Since the employees there had not agreed to arbitrate their statutory claims, and the labor arbitrators were not authorized to resolve such claims, the arbitration in those cases understandably was held not to preclude subsequent statutory actions. Second, because the arbitration in those cases occurred in the context of a collective-bargaining agreement, the claimants there were represented by their unions in the arbitration proceedings. An important concern" }, { "docid": "6052415", "title": "", "text": "out by two Supreme Court decisions, although neither one is directly on point to our ease. Moreover, those two Supreme Court decisions reached different results. Our task then is to examine the precedential orbit of the two decisions and decide which one this case falls within. The first Supreme Court decision bearing upon the matter is Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). In that case, an employee grieved and arbitrated unsuccessfully his claim that his discharge was racially discriminatory. After completing the grievance and arbitration process that the collective bargaining agreement mandated, he filed a Title VII lawsuit. Id. at 43, 94 S.Ct. at 1017. A unanimous Supreme Court held that the mandatory grievance and arbitration clause, and the result of that process in that case, did not preclude the Title VII lawsuit. The Court explained that “the federal policy favoring arbitration of labor disputes and the federal policy against discriminatory employment practices can best be accommodated by permitting an employee to pursue fully both his remedy under the grievance-arbitration clause of a collective-bargaining agreement and his cause of action under Title VII.” Id. at 59-60, 94 S.Ct. at 1025. The Alexander Court distinguished an employee’s individual statutory rights from any contractual rights he may have as an employee under a collective bargaining agreement: In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums. Id. at 49-50, 94 S.Ct. at 1020. In reaching that conclusion, the Supreme Court determined that in enacting Title VII, Congress endowed individual employees with a statutory right to equal employment opportunities that is not susceptible to prospective waiver by the “majoritarian processes” of collective bargaining. Id. at 51-52," }, { "docid": "22047789", "title": "", "text": "The arbitrator acknowledged that Coleman’s behavior raised “serious concerns about her fitness for duty, and under what conditions she might be able to work,” and he ordered Coleman to undergo a psychiatric examination to ascertain whether she was ready to return. He did not determine that the Postal Service’s concerns about Coleman were lies, but only that it had failed to meet its “burden of proving that [she] engaged in conduct warranting her removal.” Issue preclusion therefore could not apply. Second, whatever the arbitrator’s findings, his decision could not trigger collateral estoppel in this action. In Alexander v. Gardner-Denver Co., 415 U.S. 36, 59-60, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), the Supreme Court held that arbitration decisions do not have preclusive effect in later litigation under Title VII. The Court explained that “Congress intended federal courts to exercise final responsibility for enforcement of Title VII; deferral to arbitral decisions would be inconsistent with that goal.” Id. at 56, 94 S.Ct. 1011. The only exception to this rule is where a clause in a collective bargaining agreement has explicitly mandated that “employment-related discrimination claims would be resolved in arbitration.” 14 Penn Plaza v. Pyett, 556 U.S. 247, 129 S.Ct. 1456, 1464, 173 L.Ed.2d 398 (2009). In 14 Penn Plaza, the Supreme Court held that such clauses are enforceable, distinguishing Gardner-Denver on the grounds that, in that case, the “employee’s collective-bargaining agreement did not mandate arbitration of statutory antidiscrimination claims.” Id. at 1467. Yet the Court recognized the continuing vitality of Gardner-Denver in cases like this one, where the CBA did not “clearly and unmistakably require[] union members to arbitrate claims arising under” federal anti-discrimination laws: where the “collective-bargaining agreement [gives] the arbitrator ‘authority to resolve only questions of contractual rights,’ his decision could not prevent the employee from bringing the Title VII claim in federal court ‘regardless of whether certain contractual rights are similar to, or duplicative of, the substantive rights secured by Title VII.’ ” Id. at 1461, 1467, quoting Gardner-Denver, 415 U.S. at 53-54, 94 S.Ct. 1011. Here, the collective bargaining agreement did not require submission of Title" }, { "docid": "20055490", "title": "", "text": "securities industry agreements to arbitrate have been upheld and enforced. Rodriguez de Quijos v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 5. Ct. 1917, 1921-22, 104 L.Ed.2d 526 (1989). Defendants, as did the Supreme Court in Gilmer and two circuit courts which have faced the issue after Gilmer, distinguish Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), and its progeny on a number of grounds. In Alexander, the arbitration was conducted pursuant to a collective bargaining agreement. The court in Alexander found that in submitting grievances to arbitration, the employee sought to vindicate contractual rights under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. Id. 415 U.S. at 49-50, 94 S.Ct. at 1020. A labor arbitrator’s authority is limited to resolve questions of contractual rights, not statutory rights. Id. at 53, 94 S.Ct. at 1022. In Alexander, the Court held the assertion of a Title VII, statutory right, was independent of the arbitration process; Id. at 54, 94 S.Ct. at 1022; and the statutory Title VII claims were not precluded because of the difference between contractual rights under a collective bargaining agreement and individual statutory rights, the potential disparity and interest between a union and an employee, and the limited authority and power of labor arbitrators. Gilmer distinguished Alexander on the following grounds: first, Alexander did not involve the issue of the enforceability of an agreement to arbitrate statutory claims. In Alexander, the employees had not agreed to arbitrate their statutory claims. (Emphasis added) The lábor arbitrators were therefore not authorized to resolve such claims, which meant arbitration could not preclude subsequent judicial determination of the statutory actions. Gilmer, 111 S.Ct. at 1657. Second, arbitration under collective-bargaining agreements where claimants are represented by unions, present tensions between collective representation and individual statutory rights. Finally, the Alexander line of cases were not decided under the FAA, “which reflects a strong and liberal federal policy favoring arbitration agreements.” Gilmer, at 1657, citing Mitsubishi, 105 S.Ct. at 3353. Here, as in Gilmer, plaintiff" }, { "docid": "2701448", "title": "", "text": "The Court stated that [i]n submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. Gardner-Denver, 415 U.S. at 49-50, 94 S.Ct. at 1020. The Court reached the same holding in subsequent cases involving different statutes, each time emphasizing that grievance procedures under collective-bargaining agreements protect only contractual rights. See Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 737, 101 S.Ct. 1437, 1443, 67 L.Ed.2d 641 (1981) (claim under Fair Labor Standards Act, 29 U.S.C. § 201 et seq.); McDonald v. West Branch, 466 U.S. 284, 292, 104 S.Ct. 1799, 1804, 80 L.Ed.2d 302 (1984) (claim under 42 U.S.C. § 1983). The plaintiff now argues that these holdings clearly set collective-bargaining agreements apart from other employment contracts: that is, while individual employment contracts may require employees to arbitrate both contractual and statutory claims, collective-bargaining agreements simply require employees to arbitrate contractual claims. The defendants’ challenge to the plaintiffs Title VII claims would, in effect, require the court to hold that collective-bargaining agreements may require employees to arbitrate both contractual and statutory claims. Neither Gardner-Denver nor Gilmer supports this conclusion. First, the holding in Gardner-Denver was based on the assumption that the collective-bargaining process could, in some circumstances, pose a threat to the protection of individual statutory rights. The Court noted that collective bargaining is a “majoritarian process” that may subordinate the interests of individual employees to the good of union members as a group. This tension between individual and group interests, the Court concluded, should not be permitted to compromise statutory rights that Congress had conferred on individual employees under Title VII. See Gardner-Denver, 415 U.S. at 51, 94 S.Ct. at 1021; see also Barrentine, 450 U.S. at 742, 101 S.Ct. at 1445 (balancing of individual and collective interests might lead union to sacrifice statutorily granted benefits). The" }, { "docid": "2412115", "title": "", "text": "101 S.Ct. 1437. The Court rejected the contention that because FLSA claims are based on disputes over wages and hours and thus “at the heart of the collective-bargaining process,” they are “particularly well suited to resolution through collectively bargained grievance and arbitration procedures.” Id. at 738, 101 S.Ct. 1437. It reasoned: The statutory enforcement scheme grants individual employees broad access to the courts ... permitting] an aggrieved employee to bring his statutory wage and hour claim “in any Federal or State court of competent jurisdiction.” No exhaustion requirement or other procedural barriers are set up, and no other forum for enforcement of statutory rights is referred to or created by the statute. Id. at 740, 101 S.Ct. 1437. And it explained: In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under [the statute], an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely'because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums. Id. at 745-46, 101 S.Ct. 1437 (alteration in original) (quoting Gardner-Denver, 415 U.S. at 49-50, 94 S.Ct. 1011 (internal quotation marks omitted)). That the grievance may have presented a claim under the CBA in addition to one under the FLSA, the Court observed, was thus irrelevant for even if it did, the employees would not be precluded from bringing their action in federal court. See id. at 731 n. 4, 101 S.Ct. 1437. So here, it is irrelevant whether the employees’ claims may present an arbitrable dispute; they have an independent statutory right under the FLSA that they are entitled to pursue in court. We followed Barrentine in Local 246 Utility Workers Union v. Southern California Edison Co., 83 F.3d 292 (9th Cir.1996), holding that the FLSA’s “minimum wage and overtime provisions ... are guarantees to individual workers that may not be waived through collective bargaining.” Id. at 297. Distinguishing the" }, { "docid": "14175439", "title": "", "text": "request to arbitrate Block’s dispute. In support of its motion, Art Iron argues that it is entitled to'summary judgment because Block failed to comply with the arbitration provision of the CBA. Art Iron relies on Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d, 26 (1991), and Austin v. OwensBrockway Glass Container, 844 F.Supp. 1103 (W.D.Va.1994). Before discussing Gilmer and Austin, a discussion of earlier Supreme Court ease law on the issue of enforcement of arbitration clauses in collective bargaining agreements is appropriate. The leading Supreme Court case is Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). In Gardner-Denver, the Court permitted an employee who had exhausted grievance procedures available under a collective bargaining agreement to bring a Title VII claim into federal court without requiring deference to the arbitral decision against him. Id. at 48, 94 S.Ct. at 1020. The Court stated that: We are also unable to accept the proposition that petitioner waived his cause of action under Title VII. To begin, we think it clear that there can be no prospective waiver of an employee’s rights under Title VII. It is true, of course, that a union may waive certain statutory rights related to collective activity, such as the right to strike. (Citations omitted). These rights are conferred on employees collectively to foster the processes of bargaining and properly may be exercised or relinquished by the union as collective-bargaining agent to obtain economic benefits for union members. Title VII, on the other hand, stands on plainly different ground; it concerns not majoritarian processes, but an individual’s right to equal employment opportunities. Title VII’s strictures are absolute and represent a congressional command that each employee be free from discriminatory practices. Of necessity, the rights conferred can form no part of the collective-bargaining process since waiver of these rights would defeat the paramount congressional purpose behind Title VII. (Emphasis added). In these circumstances, an employee’s rights under Title VII are not susceptible of prospective waiver. (Citations omitted). The actual submission of petitioner’s grievance to arbitration in the present case" }, { "docid": "23029761", "title": "", "text": "be exercised or relinquished by the union as collective-bargaining agent to obtain economic benefits for union members. Title VII, on the other hand stands on plainly different ground; it concerns not majoritarian processes, but an individual’s right to equal employment opportuni-ties_ In these circumstances, an employee’s rights under Title VII are not susceptible of prospective waiver. 94 S.Ct. at 1021 (citations omitted). Thus an employee may waive his cause of action under Title VII, but a union cannot. 94 S.Ct. at 1021. This follows because “the interests of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit [and] harmony of interest between the union and the individual employee cannot always be presumed.” 94 S.Ct. at 1024 n. 19. Alexander makes clear that TWU cannot waive Bolden’s constitutional rights. In Alexander, the employee’s right arose from Title VII; here Bolden’s right arises from § 1983 and the Fourth and Fourteenth Amendments. In Alexander, express provisions in the collective bargaining agreement provided that the employer shall not discriminate, that discrimination claims shall be arbitrated, and that the arbitrator’s decision shall be “final and binding” on the employee: Here the collective bargaining agreement between TWU and SEPTA did not even permit drug testing. In Alexander, the employee permitted the union to pursue arbitration; here Bolden seasonably, persistently and unequivocally rejected TWU’s offer to pursue grievance proceedings. In Alexander, the employee did not seek review of the arbitrator’s decision, but asserted a statutory right independent of the arbitration process, 94 S.Ct. at 1022; here Bolden does not seek review of TWU’s actions as it pertains to the fair representation doctrine, but asserts an independent constitutional claim under § 1983. Yet while the Supreme Court has concluded that neither the express provisions of the collective bargaining agreement nor submitting a grievance to arbitration vitiated an employee’s statutory rights, the majority concludes that TWU’s waiver, despite Bolden’s disapproval, in his absence, and without express provision in the collective bargaining agreement, vitiated Bolden’s constitutional rights. //Bolden’s rights at issue here were no more than contractual entitlements arising out of" }, { "docid": "937176", "title": "", "text": "of this case fall more squarely under another line of Supreme Court precedent beginning with the decision in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). In Alexander, the Court permitted a union employee who had exhausted grievance procedures under a collective bargaining agreement to bring a Title VII claim in federal court, even though the last step of the grievance procedure had provided for final and binding arbitration and the outcome of the arbitral procedure was unfavorable to the plaintiff. In holding that collective bargaining agreements do not require employees to submit statutory claims to grievance procedures, the Court made clear that contractual disputes arising out of the collective-bargaining agreement itself are distinct and separate from an employee’s statutory rights. Alexander, 415 U.S. at 49-50, 94 S.Ct. at 1020-21. The same holding was reached in subsequent cases involving different statutes, and in each case the Court emphasized that grievance procedures under collective-bargaining agreements protect only contractual rights. See Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981) (involving claim under Fair Labor Standards Act); McDonald v. West Branch, 466 U.S. 284, 292, 104 S.Ct. 1799, 1804, 80 L.Ed.2d 302 (1984) (involving claim brought pursuant to 42 U.S.C. § 1983). The Court in the Alexander line of cases recognized that collective bargaining is a “majoritarian process” in which the balancing of individual and collective interests might lead a union to sacrifice statutorily granted benefits, and it concluded that this tension between individual and group interests should not be permitted to compromise statutory rights conferred by Congress on individual employees. See Gardner-Denver, 415 U.S. at 51, 94 S.Ct. at 1021, see also Barrentine, 450 U.S. at 742, 101 S.Ct. at 1445-16. Nothing in Gilmer suggests that the Court abandoned its concern about the inherent conflicts between group goals and individual rights that exist in the give-and-take of the collective bargaining process. In fact, the Court in Gilmer clearly distinguished the holding in that case from its holdings in Gardner-Denver, Barrentine, and McDonald, emphasizing that an important concern in" }, { "docid": "22315469", "title": "", "text": "difference between these ... cases and this case is that this case arises in the context of a collective bargaining agreement.” Supra at 885. I agree. The majority fails to recognize, however, that the only difference makes all the difference. A labor union may not prospectively waive a member’s individual right to choose a judicial forum for a statutory claim. I. In Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), a unanimous Supreme Court held that a person may sue under Title VII notwithstanding that he has submitted his claims to arbitration under a collective bargaining agreement and lost. In reaching this conclusion, the Court stated that an employee’s individual statutory right is completely independent of any contractual right he may have under a collective bargaining agreement, and the individual rights of employees are not subject to waiver by their union: In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums. ... [W]e think it clear that there can be no prospective waiver of an employee’s rights under Title VII. It is true, of course, that a union may waive certain statutory rights related to collective activity, such as the right to strike, [cites omitted] These rights are conferred on employees collectively to foster the processes of bargaining and properly may be exercised or relinquished by the union as collective-bargaining agent to obtain economic benefits for union members. Title VII, on the other hand, stands on plainly different ground; it concerns not majoritarian processes, but an individual’s right to equal employment opportunities. Title VII’s strictures are absolute and represent a congressional command that each employee be free from discriminatory practices. Of necessity, the rights conferred can" }, { "docid": "22953000", "title": "", "text": "the standard under the contract is the same as under the statute. In Barrentine the issue was whether an employee could bring an action in federal district court, alleging a violation of the minimum wage provisions of the Fair Labor Standards Act of 1938, (“FLSA”), 29 U.S.C. § 201, et seq., after having unsuccessfully submitted a wage claim based on the same underlying facts to a joint grievance committee pursuant to the provisions of his union’s collective bargaining agreement. The Court held the petitioners’ wage claims under the FLSA were not barred by the prior submission of their grievances to the contractual dispute-resolution procedures. The Court reasoned that the FLSA rights that petitioners sought to assert were independent of the collective bargaining process. Such rights were ascribed to the petitioners by the statute as individual workers, not as members of any union, and such rights were not waivable. Citing its decision in Alexander v. Gardner-Denver Co., the Court noted: While courts should defer to an arbitral decision where the employee’s claim is based on rights arising out of a collective-bargaining agreement, different considerations apply where the employee’s claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers. 101 S.Ct. at 1443. The Court went on to explain why an arbitrator’s decision in such circumstances should not be considered final: [E]ven when the union has fairly and fully presented the employee’s wage claim, the employee’s statutory rights might still not be adequately protected. Because the “specialized competence of arbitrators pertains primarily to the law of the shop, not the law of the land,” id. [415 U.S.] at 57; [94 S.Ct. at 1024]. See United Steelworkers of America v. Warrior & Gulf Navigation Co., supra, 363 U.S. [574] at 581-82, [80 S.Ct. 1347, at 1352, 4 L.Ed.2d 1409] many arbitrators may not be conversant with the public law considerations underlying the FLSA. . . . Moreover, even though a particular arbitrator may be competent to interpret and apply statutory law, he may not have the contractual authority to do so. An arbitrator’s power" }, { "docid": "22229717", "title": "", "text": "District Court’s view that simply participating in the arbitration amounted to electing the arbitration remedy and waiving the plaintiff’s right to sue. We said that the arbitration agreement at issue covered only a contractual right under the CBA to be free from discrimination, not the “independent statutory rights accorded by Congress” in Title VII. Id., at 49-50. Third, we rebuffed the employer’s argument that federal courts should defer to arbitral rulings. We declined to make the “assumption that arbitral processes are commensurate with judicial processes,” id., at 56, and described arbitration as “a less appropriate forum for final resolution of Title VII issues than the federal courts,” id., at 58. Finally, we took note that “[i]n arbitration, as in the collective-bargaining process, the interests of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit,” ibid., n. 19, a result we deemed unacceptable when it came to Title VII claims. In sum, Gardner-Denver held that an individual’s statutory right of freedom from discrimination and access to court for enforcement were beyond a union’s power to waive. Our analysis of Title VII in Gardner-Denver is just as pertinent to the ADEA in this case. The “interpretation of Title VII . . . applies with equal force in the context of age discrimination, for the substantive provisions of the ADEA ‘were derived in haec verba from Title VII,’” and indeed neither petitioners nor the Court points to any relevant distinction between the two statutes. Trans World Airlines, Inc. v. Thurston, 469 U. S. 111, 121 (1985) (quoting Lorillard v. Pons, 434 U. S. 575, 584 (1978)); see also McKennon, 513 U. S., at 358 (“The ADEA and Title VII share common substantive features and also a common purpose”). Given the unquestionable applicability of the Gardner-Denver rule to this ADEA issue, the argument that its precedent be followed in this case of statutory interpretation is equally unquestionable. “Principles of stare decisis ... demand respect for precedent whether judicial methods of interpretation change or stay the same. Were that not so, those principles would fail to achieve" }, { "docid": "2412114", "title": "", "text": "but on somewhat different reasoning. The Supreme Court’s decision in Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981), makes clear that the rights of employees arising out of the collective bargaining agreement are separate and distinct from those arising out of a statute such as the FLSA: While courts should defer to an arbitral decision where the employee’s claim is based on rights arising out of the collective-bargaining agreement, different considerations apply where the employee’s claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers. Id. at 737, 101 S.Ct. 1437. The Court cited its prior decision in Alexander v. Gardner-Denver Co., 415 U.S. 36, 51, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), in which it had held that “in enacting Title VII, Congress had granted individual employees a nonwaivable, public law right to equal employment opportunities that was separate and distinct from the rights created through the ‘majoritarian processes’ of collective bargaining.” Barrentine, 450 U.S. at 737-38, 101 S.Ct. 1437. The Court rejected the contention that because FLSA claims are based on disputes over wages and hours and thus “at the heart of the collective-bargaining process,” they are “particularly well suited to resolution through collectively bargained grievance and arbitration procedures.” Id. at 738, 101 S.Ct. 1437. It reasoned: The statutory enforcement scheme grants individual employees broad access to the courts ... permitting] an aggrieved employee to bring his statutory wage and hour claim “in any Federal or State court of competent jurisdiction.” No exhaustion requirement or other procedural barriers are set up, and no other forum for enforcement of statutory rights is referred to or created by the statute. Id. at 740, 101 S.Ct. 1437. And it explained: In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under [the statute], an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely'because both were violated as" }, { "docid": "2412116", "title": "", "text": "a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums. Id. at 745-46, 101 S.Ct. 1437 (alteration in original) (quoting Gardner-Denver, 415 U.S. at 49-50, 94 S.Ct. 1011 (internal quotation marks omitted)). That the grievance may have presented a claim under the CBA in addition to one under the FLSA, the Court observed, was thus irrelevant for even if it did, the employees would not be precluded from bringing their action in federal court. See id. at 731 n. 4, 101 S.Ct. 1437. So here, it is irrelevant whether the employees’ claims may present an arbitrable dispute; they have an independent statutory right under the FLSA that they are entitled to pursue in court. We followed Barrentine in Local 246 Utility Workers Union v. Southern California Edison Co., 83 F.3d 292 (9th Cir.1996), holding that the FLSA’s “minimum wage and overtime provisions ... are guarantees to individual workers that may not be waived through collective bargaining.” Id. at 297. Distinguishing the situation where the employees’ claim was based on contract rather than on the FLSA, we said that where the claim is based on substantive rights under the FLSA, no resort to arbitration under the CBA is required. See id. In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), the Court confirmed the continuing vitality of the Barrentine/Gard-ner-Denver fine of cases. Referring to Gardner-Denver, the Gilmer court “stressed that an employee’s contractual rights under a collective-bargaining agreement are distinct from the employee’s statutory Title VII rights.” Id. at 34, 111 S.Ct. 1647. The Gilmer court distinguished the Gardner-Denver line of cases from the case before it, which involved an individual’s employment agreement providing for arbitration of any “controversy between [the parties] ... arising out of the employment or termination,” id. at 23, 111 S.Ct. 1647, by stating: [T]hose cases did not involve the issue of the enforceability of an agreement to arbitrate statutory claims. Rather, they involved the quite different issue whether arbitration of contract-based claims precluded subsequent judicial" }, { "docid": "5585569", "title": "", "text": "80 L.Ed.2d 302 (1984), claims under Title VII, and other similar federal and local statutes, may be filed directly in federal or state court without first resorting to arbitration. Citing Alexander, Plaintiff points out that while arbitration proceedings allow an employee to vindicate his contractual rights, Title VII, and other analogous claims, are based on constitutional rights conferred by Congress, and which can only be properly addressed in the courts. In Alexander, the Supreme Court held that an employee’s statutory right to a trial under Title VII is not foreclosed by a prior submission of his contractual claims to final arbitration under the non discrimination clause of a collective-bargaining agreement. 415 U.S. at 38, 94 S.Ct. 1011. As a result, the Court found that an employee may pursue his Title VII cause of action in court upon conclusion of arbitration. Id. at 59-60, 94 S.Ct. 1011. In court, the employee should be afforded a de novo trial, although the arbitral decision “may be admitted as evidence and accorded such weight as the court deems appropriate.” Id. at 60, 94 S.Ct. 1011. Subsequently, the Court held that claims under Section 1983, and the Fair Labor Standards Act, are not barred by prior submission to arbitration proceedings brought pursuant to the terms of collective-bargaining agreements. See Barrentine, 450 U.S. at 745, 101 S.Ct. 1437; McDonald, 466 U.S. at 292, 104 S.Ct. 1799. In reaching its conclusion in Barrentine and McDonald, the Court expressed concern about the arbitrator’s competence and authority to enforce statutory rights, as well as possible conflicts of interest between the union and the employees’ rights that could encroach on the latter’s rights. See id. Notwithstanding, this Court notes that the Alexander line of cases dealt with collective-bargaining agreements, not an individual employee’s waiver of his statutory rights. Moreover, the arbitration agreements in dispute did not expressly mandate arbitration of statutory anti discrimination claims, and instead focused on the union members’ contractual rights. See 14 Penn Plaza LLC et al. v. Pyett et al., — U.S. -, 129 S.Ct. 1456, 1467, 173 L.Ed.2d 398 (2009). That is why the Supreme" }, { "docid": "11872677", "title": "", "text": "was not foreclosed by his earlier submission of a discrimination claim to arbitration. “The Court found that in enacting Title VII, Congress had granted individual employees a nonwaivable public law right to equal employment opportunities that was separate and distinct from the rights created through the ‘majoritarian processes’ of collective bargaining.” Barrentine v. Arkansas-Best Freight System, supra, at 737, 101 S.Ct. at 1443 (quoting Gardner-Denver, supra, at 51). In addition, “because Congress had granted aggrieved employees access to the courts, and because contractual grievances and arbitration procedures provided an inadequate forum for enforcement of Title VII rights, the court concluded that Title VII claims should be resolved by the courts de novo.” Id. The Supreme Court recently extended the Gardn er-Den ver rationale to another class of statutory actions in Barrentine. The petitioners in that case were truck drivers who were required by federal law to conduct a safety inspection of their trucks before commencing any trip. The drivers were not compensated by their employer for the time spent on that task. They filed grievances against their employer, and alleged that the collective bargaining agreement required the employer to compensate them. A joint grievance committee rejected the grievances without explanation. The drivers filed an action in federal district court alleging that time consumed in the pre-trip inspections was compensable under the Fair Labor Standards Act, again resorting to an independent remedy. The district court dismissed the action, and was affirmed by the court of appeals. The Supreme Court again reversed. It held that the employees need not exhaust grievance procedures established by collective bargaining agreements when seeking to vindicate rights created by the FLSA. The Court’s rationale for that decision is applicable here as well. The reasoning of the Court was that the minimum pay and maximum hour provisions of the Federal Labor Standards Act are substantive rights that devolve on workers individually, not collectively, and may not be waived under collective bargaining agreements. Barrentine, supra, at 737—44, 101 S.Ct. at 1443-47. Also emphasized was the fact that the Federal Labor Standards Act claims were not based on rights arising" }, { "docid": "1482328", "title": "", "text": "(1974), and its progeny, the arbitration clause does not preclude his suit. In Gardner-Denver, an employee’s racial discrimination suit had been submitted to arbitration pursuant to a CBA. The employee filed a Title VII action after an arbitrator resolved his claim in favor of his employer. Because the arbitrator’s authority was limited to interpretation of the contract, which did not specifically incorporate Title VII, a determination of the employee’s contractual rights was held not to preclude adjudication of his statutory rights, even where “both were [allegedly] violated as a result of the same factual occurrence.” Gardner-Denver, 415 U.S. at 50, 94 S.Ct. at 1020. In Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981), Gardner-Denver was applied to a claim under the Fair Labor Standards Act. In holding that the petitioners were not required to submit their federal claims to arbitration, despite the inclusion of a mandatory arbitration clause in the CBA governing their employment, the Barrentine Court emphasized that while the FLSA like Title VII, is designed to protect individual workers and ensure that every worker receives a fair wage, the Labor Management Relations Act is designed to promote employees’ interests collectively. Requiring arbitration of an employee’s FLSA claims was held to compromise those claims in two ways: (1) a union that negotiates a CBA or represents an employee in a CBA arbitration may not zealously pursue the employee’s rights if vindication of that employee’s rights would not benefit the union membership as a whole; and (2) arbitrators may be less competent to resolve the complex statutory questions and legal issues common to FLSA claims. More recently, the Supreme Court has indicated that under some circumstances an employee may be bound by an agreement to arbitrate his federal claims. In Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), a CBA arbitration clause was held to preclude the employee from bringing an Age Discrimination in Employment Act (“ADEA”) claim “unless [the employee could show that] Congress [intended] to preclude a waiver of judicial remedies for the" }, { "docid": "22229716", "title": "", "text": "relinquished by the union as collective-bargaining agent to obtain economic benefits for union members.” Ibid. But “Title VII . . . stands on plainly different [categorical] ground; it concerns not majoritarian processes, but an individual’s right to equal employment opportunities.” Ibid. Thus, as the Court previously realized, Gardner-Denver imposed a “seemingly absolute prohibition of union waiver of employees’ federal forum rights.” Wright v. Universal Maritime Service Corp., 525 U. S. 70, 80 (1998). We supported the judgment with several other lines of complementary reasoning. First, we explained that anti-discrimination statutes “have long evinced a general intent to accord parallel or overlapping remedies against discrimination,” and Title VII’s statutory scheme carried “no suggestion ... that a prior arbitral decision either forecloses an individual’s right to sue or divests federal courts of jurisdiction.” Gardner-Denver, 415 U. S., at 47. We accordingly concluded that “an individual does not forfeit his private cause of action if he first pursues his grievance to final arbitration under the nondiscrimination clause of a collective-bargaining agreement.” Id., at 49. Second, we rejected the District Court’s view that simply participating in the arbitration amounted to electing the arbitration remedy and waiving the plaintiff’s right to sue. We said that the arbitration agreement at issue covered only a contractual right under the CBA to be free from discrimination, not the “independent statutory rights accorded by Congress” in Title VII. Id., at 49-50. Third, we rebuffed the employer’s argument that federal courts should defer to arbitral rulings. We declined to make the “assumption that arbitral processes are commensurate with judicial processes,” id., at 56, and described arbitration as “a less appropriate forum for final resolution of Title VII issues than the federal courts,” id., at 58. Finally, we took note that “[i]n arbitration, as in the collective-bargaining process, the interests of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit,” ibid., n. 19, a result we deemed unacceptable when it came to Title VII claims. In sum, Gardner-Denver held that an individual’s statutory right of freedom from discrimination and access to court for" }, { "docid": "23135943", "title": "", "text": "is an inherent incompatibility in referring to an arbitrator claims that fall within the exclusive jurisdiction of the federal courts and that arise as part of a comprehensive federal statutory scheme designed to assure protection to those individuals who fall within it. The Supreme Court has reached a similar conclusion with regard to analogous federal protective statutes. In Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981), the Court held that wage claims based on rights arising out of the Fair Labor Standards Act could be brought in federal court notwithstanding the prior completion of arbitration as required by a collective bargaining agreement. The Court emphasized that: While courts could defer to an arbitral decision where the employee’s claim is based on rights arising out of the collective bargaining agreement, different considerations apply where the employee’s claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers. Id. at 737, 101 S.Ct. at 1443. Other factors to which the Court referred, also applicable here, were the statutory provision for broad access to the courts; the absence of provisions requiring exhaustion or establishing procedural barriers; the non-waivability of rights under the FLSA by custom or contract; the better competency of courts to decide the complex legal issues that are intertwined with the factual questions in wage cases under the FLSA; and the broader range of relief available from a federal court than from an arbitrator. Id. at 740-45, 101 S.Ct. at 1444-47. Barrentine relied upon a similar decision in Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), holding that an individual could maintain an action under Title VII of the Civil Rights Act of 1964 notwithstanding a prior unsuccessful resort to arbitration on a claim of unjust dismissal. In addition to the factors referred to in Barrentine, the Court in Alexander mentioned the deficiency of arbitral procedures in protecting the substantial rights created by Title VII in a manner “commensurate with judicial processes.” Id. at 56, 94 S.Ct. at 1024." } ]

[ { "docid": "23301064", "title": "", "text": "company. In March of 1986, she alleges, she was abruptly dismissed in order to prevent her from making disclosures about the defendants’ illegal activities to the Delaware bank examiners. Shearin pleads that the defendants have thereby violated 18 U.S.C. § 1962(a), (b), (c) and (d). These violations are actionable, she pleads, under 18 U.S.C. § 1964(c), which provides: 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. Recovery under section 1964(c) thus requires the pleading of (1) a section 1962 violation, and (2) an injury to business or property by reason of such violation. The latter pleading requirement is in common parlance referred to as RICO standing. Our review of the dismissal of Shearin’s complaint is plenary. Accepting Shearin’s allegations as true we must determine whether she has alleged any set of facts which would entitle her to recover under 18 U.S.C. § 1964(c). A. Shearin Pleaded RICO Violations Shearin alleges that the defendants (1) used money derived from a pattern of racketeering to invest in an enterprise, 18 U.S.C. § 1962(a); (2) conducted an enterprise through a pattern of racketeering, 18 U.S.C. § 1962(c); and (3) conspired to violate sections 1962(a) and (c) in violation of 18 U.S.C. § 1962(d). (1) Section 1962(a) Shearin’s complaint adequately alleges that the Hutton companies used money derived from a pattern of racketeering to invest in an enterprise. The statute in relevant part provides: It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity or through collection of any unlawful debt in which such person has participated as a principal within the meaning of section 2, title 18, United States Code, to use or invest, directly or indirectly, any part of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or" } ]

[ { "docid": "3149446", "title": "", "text": "to relief. See § 1692e. Defendants correctly note that the Act does not prohibit debt collectors from “attempting to collect validly certified amounts owed their client.” Amond v. Brincefield, Hartnett & Assocs., 1999 WL 152555, *3-4 (4th Cir. Mar.22, 1999) (explaining further that lawyers need not have more than a “colorable basis” for asserting a deficiency claim). Thus, Plaintiffs allegations that Defendants violated the FDCPA merely by attempting to collect a disputed debt do not state a claim upon which relief can be granted. But the fact that some of Plaintiffs averments, standing alone, fail to state a claim does not warrant dismissal of the entire amended complaint. Thus, Defendants’ Motion is denied as to claims asserted under the FDCPA. 2. RICO Claim Plaintiff alleges that Defendants have entered into a “conspiracy for the purpose of attempting to collect an alleged debt and to defraud Plaintiff [which] is ... a predicate offense for a civil RICO claim.” Compl. ¶ 42. The amended complaint does not allege violations of any specific provisions of RICO. Defendants argue that the RICO claim should be dismissed because Plaintiff has failed to allege sufficient facts to support the claim. The Racketeer Influenced and Corrupt Organizations Act grants a private right of action to any person injured in his or her business or property as a result of a violation of 18 U.S.C. § 1962. 18 U.S.C. § 1964(c). Section 1962 contains four specific prohibitions. First, it declares unlawful the use of income derived from “a pattern of racketeering activity or through collection of an unlawful debt” to acquire an interest in, establish, or operate “any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.” § 1962(a). Second, it declares unlawful the acquisition or maintenance of “any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce” through “a pattern of racketeering activity or through collection of an unlawful debt.” § 1962(b). Third, it prohibits “any person employed by or associated with any enterprise engaged in, or the activities" }, { "docid": "20330597", "title": "", "text": "when they sold plaintiffs some condominiums and then invested the proceeds from the sales. The court dismissed their RICO claim, explaining, [T]he conduct constituting a violation under § 1962(a) is not the mere receipt of money derived from a pattern of racketeering activity. Nor can a violation be premised on the investment in an enterprise affecting interstate commerce. Rather, the essence of the violation of § 1962(a) is the use or investment of the tainted money in an enterprise. Therefore, to have standing to assert a RICO claim under § 1962(a) an injury to one’s business or property must occur because of the investment of tainted money in an enterprise affecting commerce, the essence of the violation. In the instant case, plaintiffs’ pleading of an injury by the investment has been simply in conclusory fashion. Plaintiffs have not shown, however an injury because of the investment of tainted money in an enterprise affecting commerce. Whether the defendants did or did not invest the proceeds from the sale of the condominiums is not causally related to the plaintiffs’ alleged injury. That is, the fact that the condominiums were not what they were represented to plaintiffs when they purchased their units is not causally related to the investment of the proceeds. For this reason, plaintiffs lack standing to assert a RICO claim based on § 1962(a) against the U.S. Capital defendants. 720 F.Supp. at 508. Thus, as Judge Zatkoff recognized in the context of Plaintiffs’ original Complaint, the injury alleged is from the claimed racketeering activity, not “from the actual use or investment of racketeering income funds.” [5/7/90 Opinion, p. 9.] See also, NL Industries, supra (“If plaintiff suffered any RICO injury (which it did not), it was the result of the defendants conducting an enterprise through a pattern of racketeering activity — a violation of § 1962(c).” 650 F.Supp. at 1150.) Plaintiffs have not only failed to assert any causal connection between Defendants’ purported investment of the proceeds of the single-premium policies and Plaintiffs’ alleged injury, their § 1962(a) claims are even more fundamentally deficient for the simple reason that they" }, { "docid": "3149008", "title": "", "text": "that a complaint nearly identical to the Plaintiffs’ failed to allege the requisite injury to state a claim under § 1962(b): Similar to § 1962(a), in order to allege injury “by reason of’ § 1962(b), a RICO plaintiff must demonstrate that the defendant’s acquisition or control of an interstate enterprise injured plaintiff. In other words, injury from the racketeering acts themselves is not sufficient; rather, a plaintiff must plead facts tending to show that the acquisition or control of an interest injured plaintiff. In the case at bar, plaintiffs allege as follows: That the defendants through a pattern of racketeering activity have acquired and maintained directly or indirectly an interest in or control of the enterprise, said enterprise engaged in and involved in the activities of which affect the interstate or foreign commerce is prohibited under 18 U.S.C. § 1962(b). As with their § 1962(a) claim, plaintiffs’ § 1962(b) claim essentially states that plaintiffs were injured by defendants’ acts of racketeering. The amended complaint contains conclusory allegations which parrot each of the four parts of § 1962. Plaintiffs’ complaint fails to allege that their injury resulted from the acquisition or control of an interest by defendants..... In sum, the proximate cause of plaintiffs’ injuries as alleged in their complaint is defendants’ alleged acts of racketeering themselves. Therefore, plaintiffs’ RICO claims brought under § 1962(a) and (b) do not satisfy the requirement that the injury be “by reason of’ the use or investment, or the acquisition or control of an interest. Delorean v. Cork Gully, 118 B.R. 932, 946 (E.D.Mich.1990) (citation omitted); see also South Carolina Elec. & Gas Co. v. Westinghouse Elec. Corp., 826 F.Supp. 1549, 1562 (D.S.C.1993). The Eastern District of Michigan reiterated this holding in Whaley v. Auto Club Ins. Assoc., 891 F.Supp. 1237 (E.D.Mich.1995), aff'd, 129 F.3d 1266, 1997 WL 720451 (6th Cir.1997) (unpublished per curiam): [According to 18 U.S.C. § 1964(c), plaintiff can only seek a civil remedy under RICO if her business or property was injured by reason of the § 1962(b) violation. Contrary to plaintiffs assertion, one does not violate § 1962(b) by committing" }, { "docid": "16965546", "title": "", "text": "address each section of the civil RICO statute and determine whether Plaintiff' has properly averred any other RICO violation. “[T]o bring a claim under 18 U.S.C. § 1962(a), a plaintiff must allege an injury from the use or investment of the racketeering income that is separate and distinct from injuries allegedly caused by the defendant’s engaging in the predicate acts.” Fogie v. THORN Americas, Inc., 190 F.3d 889, 896 (8th Cir.1999). In Fogie, the Eighth Circuit held that the district court properly dismissed a claim brought under § 1962(a) for lack of standing under Rule 12(b)(6) because “plaintiffs have not and apparently cannot allege an injury from a use or investment distinct or separate from the predicate acts they allege.” Id. Plaintiff has not alleged any facts in the Complaint or in her other pleadings to show that she sustained an injury arising out of the defendants’ use or investment of racketeering income. Accordingly, Plaintiff has failed to state a claim under 18 U.S.C. § 1962(a). Likewise, Plaintiff has failed to state a claim under § 1962(b), which prohibits a person from acquiring an interest in an enterprise through a pattern of racketeering activity, because she has not alleged any facts indicating that a defendant obtained an interest in an enterprise through racketeering. Cf. Informa tion Exchange Sys., Inc. v. First Bank Nat’l Ass’n, 994 F.2d 478 (8th Cir.1993) (affirming the trial court’s dismissal of the § 1962(b) claim even though the plaintiffs alleged that defendants took over his business because the plaintiff failed “to demonstrate both the requisite predicate acts and the requisite relatedness of those acts.”). Defendants believe that Plaintiff is attempting to assert a violation of 18 U.S.C. § 1962(c), and the Court agrees. “To state a claim under § 1962(c), a plaintiff must establish: (1) the existence of an enterprise; (2) conduct by the defendants in association with the enterprise; (3) the defendants’ participation in at least two predicate acts of racketeering; and (4) conduct that constitutes a pattern of racketeering activity.” In re Sac & Fox Tribe of Mississippi in Iowa/Meskwaki Casino Litig., 340 F.3d" }, { "docid": "7704874", "title": "", "text": "primary securities violations against the moving defendants. Such a determination can await trial on the merits. 2. Plaintiffs’ Claims under Section 17(a) of the 1933 Act In their Second Claim for Relief, plaintiffs allege violations of section 17(a) of the 1933 Act, 15 U.S.C. § 77q. Because there is no private right of action for a claim under section 17(a), plaintiffs’ second claim must be dismissed. This Court recently so held in Eickhorst v. American Completion and Dev. Corp., 706 F.Supp. 1087, 1097-98 (S.D.N.Y.1989), and for the reasons therein stated adheres to that determination today. 3. Plaintiffs’ RICO Claims Plaintiffs’ third, fourth and fifth claims for relief allege violations of RICO by all defendants. Claim three alleges that each of the defendants engaged in the conduct of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(c). Amended Complaint TUT 101-107. Claim four alleges a conspiracy among the defendants to violate section 1962(e), in violation of section 1962(d). Amended Complaint 1111108-111. Claim five alleges that the defendants received income derived from a pattern of racketeering activity, and used or invested some part or all of that income in the operation of an enterprise, in violation of section 1962(a) and/or section 1962(b). Amended Complaint ¶¶ 112-115. Plaintiffs bring their RICO claims pursuant to section 1964(c), which specifically provides for a private right of action by any person injured in his or her business or property by reason of a violation of section 1962. Defendants have moved, pursuant to Rules 12(b)(6) and 9(b), Fed.R.Civ.P., to dismiss the RICO claims. To state a cause of action under section 1962(c) a plaintiff must allege the conduct of an enterprise through a pattern of racketeering activity. Sedima, S.P.L.R. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985); Proctor & Gamble Co. v. Big Apple Indus. Bldgs., Inc., 879 F.2d 10, 14 (2d Cir.1989). A plaintiff has standing and can recover only to the extent that he or she has been injured in his or her business or property by the conduct constituting the violation." }, { "docid": "2486821", "title": "", "text": "Bowman had standing to pursue a civil suit based on § 1962(a), (b), and (c) claims as well as on a § 1962(d) conspiracy claim. Because we find that the firing of Bowman from his job was not a predicate RICO act, neither our analysis of standing under § 1962(a)-(c) nor our analysis under § 1962(d) need address the issue of indirect injuries as discussed in Terre Du Lac. See Holmes, — U.S. -, 112 S.Ct. 1311. VI. The order of the district court holding that plaintiff Bowman has standing to bring a civil action pursuant to 18 U.S.C. § 1964(c) based on alleged violations of 18 U.S.C. § 1962(a)-(d) is reversed. This case is remanded to the district court with directions to grant the defendant’s motion to dismiss. . RICO violations are found in 18 U.S.C. § 1962. Specifically, section 1962(a) makes it \"unlawful for any person who has received any income derived ... from a pattern of racketeering activity ... to use or invest ... such income ... in acquisition of ... any enterprise which is engaged in ... interstate ... commerce.” Section 1962(b) makes it \"unlawful for any person through a pattern of racketeering activity ... to acquire ... any interest in ... any enterprise which is engaged in ... interstate ... commerce.” Section 1962(c) makes it \"unlawful for any person ... associated with any enterprise engaged in ... interstate ... commerce [ ] to ... participate ... in the conduct of such enterprise's affairs through a pattern of racketeering activity....” Section 1962(d) makes it \"unlawful for any person to conspire to violate ... (a), (b), or (c) of this section.” 18 U.S.C. § 1962. Section 1961(1) of RICO defines racketeering activity, in part, as \"any act or threat involving murder, kidnaping, gambling, arson, robbery, bribery, extortion, or dealing in narcotic or other dangerous drugs, which is chargeable under State law and punishable by imprisonment for more than one year,” or “any act which is in dictable under [a variety of] provisions of title 18, United States Code.” 18 U.S.C. § 1961(1). . The plaintiff in Sedima" }, { "docid": "11338019", "title": "", "text": "stems from at least one of the “predicate acts” that underpin the section 1962 violation and not necessarily from the pattern of such acts. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985). ATP asserts that its injury arose from the numerous predicate acts that comprised the pattern of racketeering activity detailed in the amended complaint. Additionally, when asserting a section 1962(a) violation, as ATP has done in count IV, a plaintiff must allege that its injury results from the use or investment of its money or property in an enterprise. ATP has done just that in the amended complaint. Paragraphs 112 and 113 clearly allege that: [e]ach of the defendants has received income, including that described ... in paragraphs 106(22) through 106(24), which is derived, both directly and indirectly, from the pattern of racketeering activity described in paragraph 109 of this Complaint and has used and/or invested, directly and indirectly, such income in the operations of the Enterprise and in the maintenance, furtherance, and operation of its affairs in violation of 18 U.S.C. § 1962(a). By reason of the above conduct, ... [ATP] has been injured, and is in danger of suffering additional injury in its business and property. The monetary injury to ATP is graphically depicted at paragraphs 29, 51, 52, 57, 82, 106(13), and 106(20)-(24). Similarly, count V, contains an adequate section 1962(b) allegation of an injury to ATP’s business or property because of the acquisition or maintenance of an interest in or control of an enterprise affecting interstate commerce. Compl. at 11115. In sum, the amended complaint clearly depicts ATP’s injury and the reasons why ATP believes it has been injured. Therefore, ATP has standing to assert civil RICO claims. In paragraph 96 of count II, ATP alleges that the association-in-fact of A-l, Premier, the Cassidys, Restivo, and Santan-gelo constituted an enterprise as defined in 18 U.S.C. § 1961(4). Defendants contended that this is an improper pleading of a RICO enterprise because the alleged enterprise is made up of “persons,” i.e., the individual and corporate defendants, already subject" }, { "docid": "18837709", "title": "", "text": "officials. Hellenic asserts that as a result of the illegal actions of the defendants Seregos and Jackson Engineering, Hellenic has suffered $800,000 in actual damages. Based on the same set of facts, the plaintiff also has brought state law claims for wrongful conversion and for fraud. Plaintiff seeks treble damages and attorneys’ fees as provided in 18 U.S.C. § 1964(c). Plaintiff also seeks damages on the state law counts and punitive damages from all the defendants on the counts alleging common law fraud. All of the defendants move to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Defendants Walter O’Hearn, John W. McGrath Corp., McGrath Services and Export move to dismiss on the additional ground that the complaint fails to plead fraud with the requisite particularity under Fed.R.Civ.P. 9(b). II. Discussion A. Failure To State A Claim and Subject Matter Jurisdiction Under RICO, Congress has deemed it “unlawful for any person through a pattern of racketeering activity ... to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in . . . interstate or foreign commerce.” 18 U.S.C. § 1962(b). Also, it is unlawful for “any person employed by . . . any enterprise ... to conduct or . . . participate ... in the conduct of such enterprise’s affairs through a pattern of racketeering activity .... ” Id. Section 1962(c). Fur- ther, it is unlawful to conspire to violate any of these sections. Id. Section 1962(d). A party suffering an injury in his business or property from a violation of RICO may sue for treble damages and attorneys’ fees. 18 U.S.C. § 1964(c). Defendants assert here that the plaintiff fails to plead facts sufficient to describe a violation of Sections 1962(b), (c). Specifically, defendants submit that there has not been any “enterprise” allegedly operated by a “pattern of racketeering” and, that if one existed, Hellenic was a participant in — not an innocent victim of — the alleged RICO violation. In addition," }, { "docid": "6204800", "title": "", "text": "916 F.Supp.2d at 301. Therefore, at this juncture, the Court denies the motions to dismiss the RICO claims as time-barred. B. Elements of a RICO Cause of Action Because the Court cannot conclude at this juncture that plaintiffs claims are time-barred, the Court turns to the sufficiency of plaintiffs pleadings as it relates to the elements of a RICO claim. As stated supra, a RICO claim contains three elements: (1) a violation of 18 U.S.C. § 1962; (2) injury to plaintiffs business or property; and (3) causation of the injury by the violation. The Court groups the moving defendants’ arguments by element. For the reasons discussed below, the amended complaint has adequately alleged the first and third elements, but has failed to allege the second element (i.e., RICO injury). Accordingly, the Court dismisses the amended complaint, without prejudice to plaintiff either filing a second amended complaint or commencing a new action when its RICO injury becomes clear and definite. 1. Violations of 18 U.S.C. § 1962 The first element of a civil RICO claim is the violation of 18 U.S.C. § 1962. Here, plaintiff alleges violations of §§ 1962(c) (RICO’s substantive provision) and 1962(d) (RICO conspiracy). The Court considers each, in turn. a. Violation of § 1962(c) To state a violation of § 1962(c), a plaintiff must plead “ ‘(1) conduct, (2) of an enterprise, (3) through a pattern (4) of racketeering activity.’ ” Anatian v. Coutts Bank Ltd., 19B F.3d 85, 88 (2d Cir.1999) (quoting Sedima, 473 U.S. at 496); see also S.Q.K.F.C., Inc. v. Bell Atl. TriCon Leasing Corp., 84 F.3d 629, 633 (2d Cir.1996) (“[A] plaintiff must allege that a defendant, ‘employed by or associated with’ an enterprise affecting interstate or foreign commerce, conducted or participated in the conduct of this enterprise’s affairs ‘through a pattern of racketeering activity.’ ” (quoting 18 U.S.C. § 1962(c); Moss v. Morgan Stanley Inc., 719 F.2d 5, 17 (2d Cir.1983))). i. Enterprise A RICO 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" }, { "docid": "8312230", "title": "", "text": "injured in their business and property by the amount of their funds “invested”, -plus lost use of the money invested, and consequential damages. Their investments in the partnerships had little, if any economic value at the time they were made, and are now worthless. This is not the type of injury contemplated under § 1962(a). Section 1962(a) provides a cause of action for those injuries precipitated by defendant’s use and reinvestment of proceeds in various enterprises. Plaintiffs have described an injury in terms of their own use of and investment. In their legal memoranda, plaintiffs contend that their statement of injury may also be found in ¶ 77 of their Amended Complaint, which states: The defendants are or were principals (within the meaning of 18 U.S.C. § 2) in one or more of the above-described enterprises and have derived income, directly or indirectly, from a pattern of racketeering activity, part of which they have invested in the various enterprises, to continue promoting, organizing and operating the Partnerships. Such conduct constitutes a violation of 18 U.S.C. § 1962(a). While this allegation may state a claim under § 1962(a), it again does not allege an injury to plaintiffs as a result of the alleged § 1962(a) violation. Since plaintiffs have not demonstrated an injury caused by defendants’ use or investment of money defrauded from plaintiffs, plaintiffs have not established standing to bring a § 1962(a) claim. Accordingly, plaintiffs’ § 1962(a) claim will be dismissed, c. Existence of an enterprise Under § 1962(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 ... 18 U.S.C. § 1962(c) (1988). Defendants argue that plaintiffs “have not properly identified any enterprise whose affairs defendants allegedly conducted through a pattern of racketeering activity.” Motion to Dismiss at 48. Under 18 U.S.C. § 1961(4), the term “enterprise” “includes any individual, partnership, corporation, association, or other legal entity, and any union or" }, { "docid": "4325118", "title": "", "text": "defendants interfered with their Fourteenth Amendment right not to be deprived of property without due process of law. The RICO statute creates a treble-damages remedy for any person injured in his business or property by reason of a violation of 18 U.S.C. § 1962. Section 1962 provides, among other things, that funds derived from a pattern of racketeering activity may not be used or invested in the acquisition or operation of any enterprise engaged in or affecting interstate commerce; that no person may acquire or maintain any interest in or control of an enterprise engaged in or affecting interstate commerce if the acquisition or maintenance of such interest or control is accomplished through a pattern of racketeering activity; that no person employed by or associated with an enterprise engaged in or affecting interstate commerce may conduct or participate in the affairs of such enterprise through a pattern of racketeering activity; and that no person may conspire to violate any of the above prohibitions. Each of the defendants except the city was accused by Cullinan and Cullinan Associates of violating one or more of these RICO provisions. We shall spare the reader the details of the plaintiffs’ theories in this regard. . In addition to asserting claims under RICO and § 1983, the plaintiffs asserted pendent state law claims for wrongful use of civil proceedings; abuse of process; interference with prospective and actual contractual relationships; punitive damages under KRS 411.182; and outrageous conduct causing severe emotional distress to Mr. Cullinan. The plaintiffs further sought to hold the city liablé as an indemnitor for damages awarded against other defendants; to hold defendants Jay, Unger and Heavrin hable for violations of miscellaneous state statutes; and to hold Mayor Abramson and the City of Louisville hable for defamation. The plaintiffs’ damages were alleged to be in excess of $10 million. In due course the defendants moved, individually or in groups, for dismissal of the complaint. The grounds on which the defendants relied included both absolute immunity and qualified immunity. After the issues had been thoroughly briefed by the parties, the district court entered an" }, { "docid": "15486476", "title": "", "text": "Borden induced them through fraud and misrepresentation, to enter into the distributorship, to continue to renew it, to make capital outlays, and to quit their other jobs. Specifically, plaintiffs allege that Borden 1) knew of and concealed from them health and safety concerns regarding Insulspray; 2) misrepresented the insulating efficiency of Insulspray; 3) misrepresented the extent of testing that had been done on Insul-spray; and 4) misrepresented the profitability of Insulspray, and its own commitment to producing it. In addition, plaintiffs allege that Borden urged them to purchase capital equipment in October, 1978, even though Borden had already decided to cease producing Insulspray. II. Count Seven — Section 1962(a) Claim Count Seven of plaintiffs’ amended complaint asserts a RICO claim under 18 U.S.C. § 1964(c) based on an alleged violation of § 1962(a). Section 1964(e) of RICO provides a damage remedy for: Any person injured in his business or property by reason of a violation of section 1962 ... Section 1962(a) declares it 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 in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. Plaintiffs assert that the only injury they need to show to recover for a violation of § 1962(a) is that injury which stems from the predicate racketeering activities themselves. Borden on the other hand, argues that in order to have standing to assert a claim for a § 1962(a) violation, plaintiffs must allege some injury occurring as a result of the use or investment of the proceeds of the racketeering activity. In their briefs, both parties cite a number of cases from other districts which reflect a lack of consensus as to what type of injury is necessary to have standing to maintain an action for a § 1962(a) violation. Since the time when the briefs of the parties were submitted, we have been graced with the" }, { "docid": "13508860", "title": "", "text": "§ 1964(c) and 28 U.S.C. § 1331. On March 1, 1990, defendants moved to dismiss the Amended Complaint on a number of grounds. First, all defendants moved to dismiss the state and federal RICO claims and the state law fraud claim for failure to state a claim for which relief could be granted, under Fed.R.Civ.P. 12(b)(6), and for failure to plead fraud with specificity as required by Fed.R.Civ.P. 9(b). Defendant Regine moved to dismiss the count alleging breach of fiduciary duties on the same grounds. Finally, all defendants moved to dismiss the remaining claims for lack of subject matter jurisdiction, under Fed.R.Civ.P. 12(b)(1). After having heard arguments on the motions of all defendants, the Court took the matter under advisement. The motions are now in order for decision. DISCUSSION I. RICO The federal RICO statute provides that “[a]ny person injured in his business or property by reason of a violation” of the prohibitions on racketeering in 18 U.S.C. § 1962 may recover treble damages plus litigation costs and attorneys’ fees. 18 U.S.C. § 1964(c). In this case, plaintiffs Amended Complaint alleges violations of all four of the activities prohibited in § 1962 which renders criminally and civilly liable “any person” who (a) uses or invests income derived “from a pattern of racketeering activity” to acquire an interest in or to operate an enterprise engaged in interstate commerce; (b) acquires or maintains an interest in or control of such an enterprise “through a pattern of racketeering activity;” (c), being employed by or associated with such an enterprise, conducts or participates in the conduct of its affairs “through a pattern of racketeering activity;” or, finally, one who (d) conspires to violate the first three subsections. Subsection 1961(1)(B) defines an act of “racketeering activity” to include any act indictable under one of numerous federal criminal provisions, including the money laundering statute, 18 U.S.C. § 1956(a), and the statutes prohibiting mail and interstate wire fraud, 18 U.S.C. §§ 1341 and 1343. Plaintiff alleges that the actions of all the individual defendants are indictable under 18 U.S.C. § 1956(a) in that the defendants engaged in" }, { "docid": "880797", "title": "", "text": "to plaintiffs’ complaint, the “blue flame” units were advertised as “state of the art residential heating system[s]” that were highly efficient and would result in considerable savings in home oil heating costs. Plaintiffs allege that because of an inherent defect, the “blue flame” units were inefficient and unsafe, and required unprecedented service to prevent carbon monoxide poisoning. Plaintiffs filed suit on June 2,1988 in the District Court for the District of New Jersey on behalf of themselves and others who had purchased the “blue flame” units alleging various state law claims and the violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) 18 U.S.C. §§ 1961-68 (1988). They claim that they were injured by defendants’ misrepresentations regarding the efficiency and safety of the furnaces. Any person injured in his or her business or property by a RICO violation may bring a civil suit to recover treble damages. 18 U.S.C. § 1964(c) (1988). Plaintiffs’ complaint alleges three RICO violations: 1) that defendants used or invested money derived from racketeering activity to acquire an interest in an enterprise engaged in interstate commerce in violation of 18 U.S.C. § 1962(a) ; 2) that defendants conducted the affairs of an enterprise through a pattern of racketeering activity in violation of section 1962(c) ; and 3) that defendants conspired to violate sections 1962(a) and 1962(c), in violation of section 1962(d). The complaint alleges that defendants used the mails to transmit advertisements, warranties and other written materials containing misrepresentations and omissions about the “blue flame” units in violation of the Mail Fraud Act, 18 U.S.C. § 1341 (1988). Defendants moved for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that plaintiffs’ complaint failed to state valid RICO claims and was barred by the statute of limitations. Relying on deposition testimony, the district court dismissed the RICO claims of plaintiff Glessner and plaintiffs Wendy and Charles Heck as time barred. The RICO claims of the other plaintiffs were dismissed on the grounds that: 1) plaintiffs had not alleged an injury arising from the investment of racketeering proceeds as required by 18 U.S.C." }, { "docid": "6962914", "title": "", "text": "the plaintiff has established that a § 1962 RICO violation has occurred, in order to be entitled to relief the plaintiff must demonstrate injury to his business or property by reason of the violation. 18 U.S.C. § 1964(c). However, the plaintiff need not plead or establish a racketeering injury which is distinct from the damages occurring as a result of the racketeering activities of the defendants. Sedima, 473 U.S. at 495, 105 S.Ct. at 3284. In the case at bar, the plaintiff has alleged that defendants Gerry and Stemple, along with the medical defendants (the “persons”) devised a scheme to defraud asbestos manufacturers, such as Raymark, by creating the NTWLP (the “enterprise”) and conducting their activities as previously set forth. Plaintiff alleges that the defendants repeatedly utilized the mails and wires in furtherance of their scheme, thereby committing mail and wire fraud. Plaintiff alleges that the scheme was open-ended and ongoing. Plaintiff further alleges that the defendants used the income received from their unlawful activity to operate the NTWLP, and conducted the NTWLP’s affairs through a pattern of racketeering activity, and conspired to do the same. Raymark asserts that by reason of the violations of 18 U.S.C. § 1962(a), (c) and (d), it was injured in its business as a result of paying $16,000,000.00 to settle fraudulent claims. In their motion to dismiss, defendants Stemple and Gerry contend the complaint fails to state a claim under RICO because: (1) it fails to allege the underlying fraud and racketeering acts with sufficient particularity; (2) it fails to allege the requisite “pattern” of racketeering activity; (3) it fails to distinguish between the “persons” and the “enterprise” which is required by § 1962(c); (4) it fails to allege that Ray-mark’s injuries were caused by the use or investment of proceeds derived from a pattern of racketeering as required by § 1962(a); and (5) it fails to state a claim for conspiracy to violate RICO pursuant to § 1962(d) as no overt acts are alleged. Finally, defendants argue that Raymark, as a private party, is not entitled to injunctive relief under RICO. A. Racketeering" }, { "docid": "1749288", "title": "", "text": "of a RICO Cause of Action. Section 1962 of RICO makes it unlawful to: (a) invest income “derived from a pattern of racketeering activity” in an interstate enterprise; (b) acquire or maintain an interest or control in an enterprise “through a pattern of racketeering”; (c) participate in the conduct of an enterprise’s affairs \"through a pattern of racketeering”; or (d) conspire to violate any of these substantive prohibitions {see 18 U.S.C. § 1962). Section 1964(c) creates a private right of action. The plaintiffs’ Amended Complaint alleges violations of 1962[c] (First Claim for Relief); 1962[b] (Second Claim for Relief); and 1962[d] (Third Claim for Relief). The threshold pleading requirements of a private action under section 1962 of RICO were set forth in Moss v. Morgan Stanley, Inc., 719 F.2d 5 (2d Cir.1983), cert. denied sub nom. Moss v. Newman, 465 U.S. 1025, 104 S.Ct. 1280, 79 L.Ed.2d 684 (1984), as follows: “To state a claim for damages under RICO a plaintiff has two pleading First, he must allege that the defendant has violated the substantive RICO statute, 18 U.S.C. § 1962 (1976), commonly known as ‘criminal RICO.’ In so doing, he must allege the existence of seven constituent elements: (1) that the defendant (2) through the commission of two or more acts (3) constituting a ‘pattern’ (4) of ‘racketeering activity’ (5) directly or indirectly invests in, or maintains an interest in, or participates in (6) an ‘enterprise’ (7) the activities of which affect interstate or foreign com-merce_ Plaintiff must allege adequately defendant’s violation of section 1962 before turning to the second burden &emdash;i.e., invoking RICO’s civil remedies of treble damages, attorneys fees and costs.... To satisfy this latter burden, plaintiff must allege that he was ‘injured in his business or property by reason of a violation of section 1962’ ” (id. at p. 17 [citations omitted]). The defendants challenge the sufficiency of the RICO claims alleged in the Amended Complaint on the following grounds, each of which is considered below: (1) the plaintiffs have alleged that they, and not the defendants are the RICO “enterprise”; (2) the allegations of underreporting royalties" }, { "docid": "22788220", "title": "", "text": "any part of such income, or the proceeds of such income, in acquisition of any interest in, or the establishment or operation of, any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce. . Section 1964(c) requires that the plaintiffs must have suffered injury to their businesses or property resulting from defendants section 1962 violations. . “Defendants Asher, Bartle, Party and County have received income and profited from the above-described pattern of racketeering activity, and Defendants Party and County have aided and abetted in the pattern of racketeering activity, in violation of the Racketeer Influenced and Corrupt Organization Act, 18 U.S.C. section 1962(a).” Rose Amended Complaint ¶ 63; Hill Amended Complaint ¶ 61; Reed Amended Complaint ¶ 66. .Although the court in Weft was evaluating a section 1962(c) claim, there appears to be no valid basis for differentiating between section 1962(a) and 1962(c) interstate commerce pleadings for sufficiency purposes. (It should be noted that \"only the criminal enterprise must affect interstate commerce — not the conduct of each individual defendant.” United States v. Robinson, 763 F.2d 778, 781 n. 4 (6th Cir.1985). Also, “'the predicate acts’ supporting a RICO violation may provide the nexus with interstate commerce.\" R.A.G.S. Couture, 774 F.2d at 1353.) . The RICO portions of the complaints reallege the claims, and the racketeering activities referenced within them, of the 42 U.S.C. § 1983 allegations. See Rose Amended Complaint ¶ 55; Hill Amended Complaint ¶ 53; Reed Amended Complaint ¶ 58; Kolimaga Complaint ¶ 28. . This question can be characterized as whether the plaintiffs have standing to sue under section 1964(c) for a violation of section 1962(a). . We address the sufficiency of the plaintiffs' racketeering activity claims in our section 1962(c) analysis. . As we have indicated above in our review of the district court's section 1962(a) determination, we hold that the plaintiffs' interstate commerce allegation is sufficient. .The plaintiffs did not allege that the county violated section 1962(c). Since Kolimaga did not allege a section 1962(c) violation by the party, the district court's dismissal of appellant Kolimaga’s putative section" }, { "docid": "8312220", "title": "", "text": "status reports were false. Accordingly, aside from plaintiffs’ allegation of fraud with regard to the vacancy/rent loss rate, plaintiffs’ allegations of fraud as to the Crestwood Partnership will be dismissed under Fed.R.Civ.P. 9(b). C. The RICO claim In count II of their amended complaint, plaintiffs have raised a civil RICO action, alleging that defendants: derived income directly or indirectly through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(a), Am. Comp, at ¶77; participated or agreed to participate in the conduct of an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(c), Am. Comp, at ¶ 78; and conspired to violate § 1962(a) and § 1962(c), in violation of 18 U.S.C. § 1962(d). Defendants raise a number of arguments to defeat plaintiffs’ RICO claim: (1) the RICO claim is time-barred; (2) the underlying fraud claims are inadequately pled under Fed.R.Civ.P. 9(b); (3) plaintiff has failed to state a RICO claim; and (4) plaintiffs lack standing to bring a RICO claim since they have not suffered an injury to property or business. I will address each argument in turn. 1. The statute of limitations A RICO cause of action accrues when “the plaintiff knew or should have known of the last injury or the last predicate act which is part of the same pattern of racketeering.” Keystone Ins. Co. v. Houghton, 863 F.2d 1125,1126 (3d Cir.1988). Once the claim has accrued, the statute of limitations for a RICO cause of action is four years. Agency Holding Corp. v. MalleyDuff & Associates, Inc., 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987). From the face of the amended complaint, the last predicate act occurred in September 1989 when Butcher mailed the information statement to the investors and suggested that a release needed to be signed. Plaintiffs filed their RICO claim well within four years of September 1989. 2. Fed.R.Civ.P. 9(b) Defendants next challenge plaintiffs’ ' RICO claim under Fed.R.Civ.P. 9(b). The offenses which, according to plaintiffs, constitute a pattern of racketeering include federal securities, mail, and wire fraud—all of which must be pled" }, { "docid": "20072746", "title": "", "text": "of stolen property in interstate commerce under 18 U.S.C. § 2314. In 1115(C), plaintiff alleges that the transportation of Nalco’s alkylation additive for sale to its customers also amounts to the transportation of stolen property in interstate commerce, giving rise to liability under 18 U.S.C. §§ 2314 and 2315. Finally, 111118 and 19 identify the three separate RICO claims which Davis Chemical asserts against defendants. In ¶ 18, plaintiff alleges that defendants derived income from a pattern of racketeering activity which was used in the operation of Nal-co, in violation of 18 U.S.C. § 1962(a). In II19, plaintiff alleges that the individual defendants conducted and participated in the affairs of Nalco through a pattern of racketeering, thereby violating the provisions of both subsections (c) and (d) of § 1962. With the RICO allegations having been summarized, the Court can proceed to address the motion to dismiss. Defendants have challenged the adequacy of each of the three RICO claims asserted by plaintiff on a variety of grounds. The Court has considered each RICO claim in turn, beginning with plaintiffs claim against the individual defendants under § 1962(c). IV. ANALYSIS A. Section 1962(c) Section 1962(c) of RICO renders liable a person who, as the employee or associate of an enterprise, conducts or participates in the affairs of the enterprise “through a pattern of racketeering activity.” Plaintiff alleges that defendants participated in the affairs of Nalco through a pattern of racketeering activity which included multiple acts of mail and wire fraud as well as the transportation of stolen property in interstate commerce. See Com plaint ¶ 15. However, defendants contend that the complaint does not meet the requirements of § 1962(c) in two principal respects: (1) the allegations as to the predicate RICO offenses are insufficient because (a) they do not establish that each defendant committed at least two predicate acts of racketeering, and (b) they do not allege fraud with particularity; and (2) the complaint fails to allege a pattern of racketeering activity. The Court has addressed each of these arguments below. 1. Sufficiency of the Predicate Act Allegations As set forth" }, { "docid": "11338018", "title": "", "text": "to defraud. Compl. at ¶¶ 51-52, 97-98, 101-106, 109, and 128. Since defendants’ Rule 9(b) arguments were without merit, I denied the motions to dismiss counts II, III, IV, V, and VII of the amended complaint. IV. Rule 12(b)(6) Motions A. RICO Defendants essentially raised three contentions in their motions to dismiss counts II through V, the RICO counts. First, defendants argued that ATP does not have standing to pursue RICO claims. Second, they maintained that ATP’s RICO enterprise allegation is legally and factually deficient. Third, they contended that the amended complaint does not properly allege a “pattern of racketeering activity” as the term has been defined in recent years. See, e.g., H.J., Inc. v. Northwestern Bell Telephone Company, Inc., 492 U.S. 229, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989). I address each point in seriatim. To satisfy RICO’s standing requirement, a plaintiff must allege and later prove that it has been directly “injured in ... [its] ... business or property by reason of [a RICO] violation.” 18 U.S.C. § 1964(c). A valid RICO injury stems from at least one of the “predicate acts” that underpin the section 1962 violation and not necessarily from the pattern of such acts. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S.Ct. 3275, 3285, 87 L.Ed.2d 346 (1985). ATP asserts that its injury arose from the numerous predicate acts that comprised the pattern of racketeering activity detailed in the amended complaint. Additionally, when asserting a section 1962(a) violation, as ATP has done in count IV, a plaintiff must allege that its injury results from the use or investment of its money or property in an enterprise. ATP has done just that in the amended complaint. Paragraphs 112 and 113 clearly allege that: [e]ach of the defendants has received income, including that described ... in paragraphs 106(22) through 106(24), which is derived, both directly and indirectly, from the pattern of racketeering activity described in paragraph 109 of this Complaint and has used and/or invested, directly and indirectly, such income in the operations of the Enterprise and in the maintenance, furtherance, and operation of" } ]

[ { "docid": "23601112", "title": "", "text": "cl. 1, because Congress cannot delegate the “power to lay and collect taxes,” and because the funds generated by the deduction do not go to the United States Treasury for the “general welfare.” The deduction, however, is not a tax. The mere fact a statute raises revenue does not imprint upon it the characteristics of a law by which the taxing power is exercised. Head Money Cases, 112 U.S. 580, 5 S.Ct. 247, 28 L.Ed. 798 (1884). The imposition of assessments have long been held to be a legitimate means of regulating commerce. See, e.g., Wickard v. Filburn, 317 U.S. 111, 63 S.Ct. 82, 87 L.Ed. 122 (1942). If regulation is the primary purpose of a statute, revenue raised under the statute will be considered a fee rather than a tax. United States v. Stangland, 242 F.2d 843, 848 (7th Cir.1957); Rodgers v. United States, 138 F.2d 992, 994 (6th Cir.1943). The clear language and structure of the 1982 amendment indicates that its primary purpose is regulation. The statute’s regulatory purpose is to reduce overproduction of milk and shift some of the financial burden of the price support program. Accordingly, the dairy amendment bears the indelible imprimatur of the commerce power and is not an unconstitutional exercise of the taxing power. There likewise is no merit to the contention that the involved statute unconstitutionally delegates legislative power to the Secretary. The legislative history of section 1446(d)(2) reveals that Congress clearly delineated the policy objectives of reducing milk production and reducing the increasing cost of the milk price support program. The statute clearly describes the effective dates during which the deduction may be implemented, the specific amount of the deduction, and requires a minimum level of expected government purchases before the deduction can be imposed. Congress thus clearly delineated “the general policy, the public agency which will apply it, and the boundaries of the delegated authority.” Electric Power & Light Corp. v. SEC, 329 U.S. 90, 105, 67 S.Ct. 133, 142, 91 L.Ed. 103 (1946). The dairy parties finally contend that section 1446(d)(2) is not a valid exercise under the commerce" } ]

[ { "docid": "1713005", "title": "", "text": "to measures having the primary objective of regulating commerce. Thus, a levy to collect the costs of regulation from those regulated is not to be treated as a tax to which the limitations of article I, section 8 apply. Id. at 887; see also United States v. Stangland, 242 F.2d 843, 848 (7th Cir.1957); Rodgers v. United States, 138 F.2d 992, 994-95 (6th Cir.1943). In Brock v. Washington Metropolitan Area Transit Authority, 796 F.2d 481 (D.C.Cir.1986), the Transit Authority challenged a workers’ compensation assessment, claiming the assessment violated the provision of an interstate compact, approved by Congress, granting the Transit Authority immunity from “taxes or assessments.” Id. at 487. The D.C. Circuit Court of Appeals rejected this argument. The court first looked to the purpose of the Transit Authority’s tax immunity, and concluded that treating the employer’s contribution to the workers’ compensation fund as one of the “taxes or assessments” barred by the compact would not serve that purpose. Id. at 487-89. The court reasoned that the purpose of the immunity was to avoid having the Transit Authority contribute money to general revenues that would then be returned to the Authority to finance its operations. This rationale suggested “that a levy is properly defined as a ‘tax’ within the meaning of the WMATA Compact provision when its principal purpose is to raise revenues, not to regulate activities.” Id. at 488. Relying upon the reasoning in Head Money Cases, Block, Stangland and Rodgers, the court held that because the primary purpose of the workers’ compensation act was the regulation of liability for industrial accidents, not the raising of revenue, the levy was not a tax within the meaning of the compact. Id. at 489. In light of these cases and the legislative history of § 11503, we conclude Congress did not intend the term “tax” in § 11503(b)(4) of the 4-R Act to bar the levy imposed by Or.Rev.Stat. § 756.310. The Oregon levy is designed to recoup the costs of a regulatory program from members of the industry regulated, rather than to raise general revenues, and excluding such a levy" }, { "docid": "15083600", "title": "", "text": "fee violated Article 1, § 8, clause 1 of the Constitution, which reserves to Congress the power to lay taxes. U.S. Const. Art. 1, § 8, cl. 1. The gravamen of appellant’s argument in this regard is that by falsely informing Congress that a $200 application fee was needed to cover the administrative costs of reviewing license applications, the FCC effectively caused Congress to levy a tax on applicants that inured to the benefit of the general Treasury and public, and thereby improperly usurped Congress’ taxing authority under the Constitution’s Taxing Clause. In a brief order, the trial court dismissed both of appellant’s claims. Longshore v. United States, No. 94-447C (Ct.Fed.Cl. Nov. 4, 1994). The court found that “[a] payment made voluntarily is not a taking,” citing Dolan v. City of Tigard, - U.S. -, 114 5.Ct. 2309, 129 L.Ed.2d 304 (1994) and Federal Communications Commission v. Florida Power Corp., 480 U.S. 245, 107 S.Ct. 1107, 94 L.Ed.2d 282 (1987). The court further found that “[t]he taxing clause does not mandate compensation for damages sustained,” citing United States v. Connolly, 716 F.2d 882 (Fed.Cir.1983) (in banc), cert. denied, 465 U.S. 1065, 104 S.Ct. 1414, 79 L.Ed.2d 740 (1984), and Orange Cove Irrigation District v. United States, 28 Fed.Cl. 790 (1993). Because it dismissed appellant’s claims, the trial court did not address appellant’s motion for class certification. This appeal followed. DISCUSSION Whether appellant has stated a claim upon which relief can be granted raises a question of law which we decide anew and without special deference to the trial court on that matter. Gould, Inc. v. United States, 935 F.2d 1271, 1273 (Fed.Cir.1991). Much of the argument by the parties on the takings claim focuses on the question of whether appellant’s payment of the application fee was truly “voluntary,” and exactly what is the meaning of voluntary in the context of an application for a government benefit. Presumably this reflects the trial court’s statement that “[a] payment made voluntarily is not a taking.” The parties also devote considerable effort toward distinguishing between user fees and other forms of fundraising by the" }, { "docid": "16481409", "title": "", "text": "the County’s authority to levy taxes. Rather, they challenge the County’s regulation of their ability to deliver waste to the facilities of their choice. While the relief they seek may well affect the revenue that the County raises from the designated facilities, this secondary economic effect would not require the court to enjoin, suspend, or restrain any tax collection. Cf. Harvey & Harvey v. Delaware Solid Waste Auth., 600 F.Supp. 1369, 1375-76 (D.Del.1985). Finally, we note that the County’s argument would apply to the similar challenge to a flow control ordinance in Carbone, yet the Supreme Court in that ease did not even question federal jurisdiction in striking the ordinance. We conclude that the Tax Injunction Act does not bar federal jurisdiction in this matter. C. Commerce Clause The Commerce Clause of the United States Constitution grants Congress the power “[t]o regulate Commerce ... among the several States.” U.S. Const, art I, § 8, cl. 3. The Supreme Court has long held that this grant of power to Congress contains negative implications that restrict states’ power to regulate interstate commerce. CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 87, 107 S.Ct. 1637, 1648-49, 95 L.Ed.2d 67 (1987). Under this “dormant Commerce Clause” jurisprudence, state laws that regulate commerce are subject to a two-step inquiry. First, if a state law discriminates against interstate commerce “in favor of local business or investment,” it is “per se invalid, save in a narrow class of cases in which the municipality can demonstrate, under rigorous scrutiny, that it has no other means to advance a legitimate local interest.” Carbone, 511 U.S. at 392, 114 S.Ct. at 1683. “Discrimination” for purposes of the Commerce Clause means “differential treatment of instate and out-of-state economic interests that benefits the former and burdens the latter.” Oregon Waste Sys. Inc. v. Department of Envtl. Quality, 511 U.S. 93, 99, 114 S.Ct. 1345, 1350, 128 L.Ed.2d 13 (1994); see also Cotto Waxo Co. v. Williams, 46 F.3d 790, 794 (8th Cir.1995). A state law may discriminate against interstate commerce on its face, in its purpose, or in its effect." }, { "docid": "10988564", "title": "", "text": "contends the Water Resources Development Act does not establish a tax upon exports in violation of the Export Clause, because enhancement of the general revenue is not its primary purpose, but is merely one aspect of a comprehensive legislative program providing for conservation and development of the nation’s water resources infrastructure. According to defendant, the value of the benefit provided by the program, maintenance of safe and efficient ports and harbors, reasonably relates to the charges- imposed and accrues, at least in part, to an identifiable private beneficiary. In considering the Act as a whole, defendant contends Congress simply imposed a user fee “for the purpose of making effective the congressional enactment.” (Def.’s Mem. in Opp’n to Amici at 54) (quoting Moon v. Freeman, 379 F.2d 382, 391 (9th Cir.1967)). For defendant to succeed on this argument, the court must find that regulation is the primary purpose of the Tax, see South Carolina ex rel. Tindal v. Block, 717 F.2d 874, 887 (4th Cir.1983), cert. denied 465 U.S. 1080, 104 S.Ct. 1444, 79 L.Ed.2d 764 (1984), or alternatively, that Congress sought to raise money to recoup the costs of services provided to the payer pursuant to a regulatory scheme, see Pace v. Burgess, 92 U.S. 372, 375-76, 23 L.Ed. 657 (1876). The Tax serves neither purpose. First, the Act neither discourages nor regulates use of a harbor; neither does it so intend. In Moon, the court upheld an export certificate program for wheat farmers. 379 F.2d at 391-93. It found the program’s monetary imposition for overproduction, essentially a penalty for non-compliance with the Secretary of Agriculture’s production controls, did not violate the Export Clause. Id. The court held where regulation is the primary purpose of the statute as a whole and revenue also is obtained incidentally through imposition of sanctions, the Constitution will not necessarily prohibit the charge. Id. at 391 (quoting Rodgers, 138 F.2d at 994). Here, the Act does not have regulation as its primary purpose. For example, it does not seek to control the amount or manner of port use. Further, the Act does not seek to" }, { "docid": "23178590", "title": "", "text": ". National Association of State Utility Consumer Advocates. . Intervenor American Cable Television Association challenges the FCC for failing to meet the requirements of the Regulatory Flexibility Act before promulgating the Order. None of the petitioners raises this argument, nor does the FCC respond to it, and therefore we do not consider it. See discussion of MCI's intervenor argument, infra part III. A.6.b. .U.S. Const., art. I, § 8, cl. 1 (\"The Congress shall have Power to lay and collect Taxes....”). . See Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56 (1996) (enacting S. 652). . U.S. Const., art. I, § 7, cl. 1 (\"All Bills for Raising Revenue shall originate in the House of Representatives.”) . The Taxing Clause analysis focuses on whether the assessment is a tax or a fee. This question is usually resolved based on whether the revenues are used to primarily defray the expenses of regulating the act. See National Cable Television Ass'n v. United States, 415 U.S. 336, 340, 94 S.Ct. 1146, 39 L.Ed.2d 370 (1974). If it is a tax, then courts will ask whether it has been properly delegated. Id. On the other hand, the Origination Clause analysis asks whether (1) the revenues generated from the assessment are for general revenues or for a particular program and (2) there is a connection between the payors and the beneficiaries of the program. See Munoz-Flores, 495 U.S. at 397, 110 S.Ct. 1964. See infra part III.B.1.c. n.83. . Generally, we do not consider arguments raised for the first time in a reply brief. See Fed. R.App. P. 28(c). Even if Celpage's Taxing Clause argument were properly before us, we find no basis for reversal. As applied to paging carriers, the universal service contribution qualifies as a fee because it is a payment in support of a service (managing and regulating the public telecommunications network) that confers special benefits on the payees. See National Cable, 415 U.S. at 340, 94 S.Ct. 1146. Cf. Rural Tele. Coalition v. FCC, 838 F.2d 1307, 1314 (D.C.Cir.1988) (upholding universal service contributions as a fee supporting allocations between" }, { "docid": "23190978", "title": "", "text": "had to distinguish “taxes” from regulatory “fees” in a variety of statutory contexts. Yet, in doing so, they have analyzed the legal issues in similar ways. They have sketched a spectrum with a paradigmatic tax at one end and a paradigmatic fee at the other. The classic “tax” is' imposed by a legislature upon many, or all, citizens. It raises money, contributed to a general fund, and spent for the benefit of the entire community. See, e.g., National Cable Television Ass’n. v. United States, 415 U.S. 336, 340-41, 94 S.Ct. 1146, IMS-49, 39 L.Ed.2d 370 (1974) [hereinafter National Cable]; Robinson Protective Alarm Co. v. City of Philadelphia, 581 F.2d 371, 376 (3d Cir.1978); Butler, 767 F.Supp. at 19. The classic “regulatory fee” is imposed by an agency upon those subject to its regulation. See New England Power Co. v. U.S. Nuclear Regulatory Commission, 683 F.2d 12, 14 (1st Cir.1982). It may serve regulatory purposes directly by, for example, deliberately discouraging particular conduct by making it more expensive. See, e.g., South Carolina ex rel. Tindal v. Block, 717 F.2d 874, 887 (4th Cir.1983), cert, denied, 465 U.S. 1080, 104 S.Ct. 1444, 79 L.Ed.2d 764 (1984). Or, it may serve such purposes indirectly by, for example, raising money placed in a special fund to help defray the agency’s regulation-related expenses. See, e.g., Union Pacific Railroad Co. v. Public Utility Commission, 899 F.2d 854, 856 (9th Cir.1990); In re Justices, 695 F.2d at 27; see also National Cable, 415 U.S. at 343-44, 94 S.Ct. at 1150-51. Courts facing cases that lie near the middle of this spectrum have tended (sometimes with minor differences reflecting the different statutes at issue) to emphasize the revenue’s ultimate use, asking whether it provides a general benefit to the public, of a sort often financed by a general tax, or whether it provides more narrow benefits to regulated companies or defrays the agency’s costs of regulation. Thus, the Seventh Circuit has called a Wisconsin Department of Transportation charge upon trucks a “tax,” because the charge was used to help pay for highway construction, a “general” type of public" }, { "docid": "1713016", "title": "", "text": "explain the $60,000 difference between expenditures and identified sources. . For example, Congress requested the Association of American Railroads \"to submit any pertinent information available on relative tax discrimination in the matter of State and local taxes.” S.Rep. No. 445, 87th Cong., 1st Sess. 458 (1961), quoted in Ogilvie v. State Bd. of Equalization, 657 F.2d 204, 206 (8th Cir.1981). The data submitted in response made no mention of the levies widely imposed to pay the costs of state railroad regulations. See abo H.R.Rep. No. 725, 94th Cong., 1st Sess. 76-78 (1975); S.Rep. No. 630, 91st Cong., 1st Sess. 2-9 (1969); S.Rep. No. 1483, 90th Cong., 2d Sess. 2-8 (1968). . As the court of appeals said in Brock v. Washington Metro. Area Transit Auth., 796 F.2d 481, 489 (D.C.Cir.1986), \"[t]he definition of ‘tax' in the abstract is a metaphysical exercise in which courts do not have occasion to engage. The term comes before judges embedded in legal contexts from which the word gains concrete and specific meaning.\" . Similarly, we held in Moon v. Freeman, 379 F.2d 382, 390-92 (9th Cir. 1967), that a charge imposed on farmers as a condition to exporting grain did not violate the prohibition in article I, section 9, clause 5 of a \"tax or duty” on exports. The primary purpose of the charge was not to raise revenue by taxing exports, but rather to recover from farmers a part of the cost of a program to regulate farm production. . The Transit Authority also challenged the assessment on the ground it violated the \"doctrine of intergovernmental tax immunity.” The court found the assessment was a user fee for purposes of that doctrine. Brock, 796 F.2d at 484-487; see Massachusetts v. United States, 435 U.S. 444, 465-69, 98 S.Ct. 1153, 1166-68, 55 L.Ed.2d 403 (1978). .Union Pacific argues that a distinction should be taken between a levy intended to implement a regulatory program directly by altering the conduct of the payer and one intended simply to pay the cost of the regulatory program: that the latter is indistinguishable from any other tax to raise" }, { "docid": "10988563", "title": "", "text": "Yale L.J. 200, 203 (1966). The Constitutional Convention deliberately chose to leave exports unburdened; and, in so doing, persuaded the South to join the new union. See id. at 204. For the Southern States, the Export Clause addressed concerns that a Congress controlled by the North would impose burdensome levies on southern exports. International Business Machs. Corp. v. United States, 13 Fed.Cir. (T) -, -, 59 F.3d 1234, 1236 (1995) [hereinafter “IBM”]. The Export Clause serves to keep all exportation free of any tax burden. Fairbank, 181 U.S. at 290, 21 S.Ct. at 651. As the Court in Fairbank explained, “[i]f all exports must be free from national tax or duty, such freedom requires not simply an omission of a tax upon the articles exported, but also a freedom from any tax which directly burdens the exportation.” Id. at 293, 21 S.Ct. at 652. B. The court finds the Harbor Maintenance Tax as it applies to exports constitutes a tax prohibited by the Export Clause and does not fall under Congress’s Commerce Clause powers. Defendant contends the Water Resources Development Act does not establish a tax upon exports in violation of the Export Clause, because enhancement of the general revenue is not its primary purpose, but is merely one aspect of a comprehensive legislative program providing for conservation and development of the nation’s water resources infrastructure. According to defendant, the value of the benefit provided by the program, maintenance of safe and efficient ports and harbors, reasonably relates to the charges- imposed and accrues, at least in part, to an identifiable private beneficiary. In considering the Act as a whole, defendant contends Congress simply imposed a user fee “for the purpose of making effective the congressional enactment.” (Def.’s Mem. in Opp’n to Amici at 54) (quoting Moon v. Freeman, 379 F.2d 382, 391 (9th Cir.1967)). For defendant to succeed on this argument, the court must find that regulation is the primary purpose of the Tax, see South Carolina ex rel. Tindal v. Block, 717 F.2d 874, 887 (4th Cir.1983), cert. denied 465 U.S. 1080, 104 S.Ct. 1444, 79 L.Ed.2d 764" }, { "docid": "7230315", "title": "", "text": "282 n. 3 (D.Me.1985) (Cyr, C.J.), which should be determined by reference to the policies underlying the Act. Robinson Protective Alarm Co. v. City of Philadelphia, 581 F.2d 371, 374 (3d Cir.1978). While the Court of Appeals for the First Circuit has not yet spoken on the definition of “tax under state law,” there is wide agreement among other circuits. Assessments which are imposed primarily for revenue-raising purposes are “taxes,” while levies assessed for regulatory or punitive purposes, even though they may also raise revenues, are generally not “taxes.” See American Petrofina Co. v. Nance, 859 F.2d 840, 841 (10th Cir.1988); Wright v. McClain, 835 F.2d 143, 144-45 (6th Cir.1987); Miami Herald Publishing Co. v. City of Hallandale, 734 F.2d 666, 670 (11th Cir.1984); Schneider Transport, Inc. v. Cattanach, 657 F.2d 128, 132 (7th Cir.1981), cert. denied, 455 U.S. 909, 102 S.Ct. 1257, 71 L.Ed.2d 448 (1982); Mobil Oil Corp. v. Tally, 639 F.2d 912, 918 (2d Cir.), cert. denied, 452 U.S. 967, 101 S.Ct. 3123, 69 L.Ed.2d 981 (1981); Robinson Protective Alarm Co., 581 F.2d at 376; Tramel v. Schrader, 505 F.2d 1310, 1314-15 (5th Cir.1975). Cf. South Carolina ex rel. Tindal v. Block, 717 F.2d 874, 887 (4th Cir.1983) (defining “tax” in the context of the federal Constitution’s assignment of the taxing power), cert. denied, 465 U.S. 1080, 104 S.Ct. 1444, 79 L.Ed.2d 764 (1984). There is no question that the $300 jury fee fits comfortably within this definition of a “tax” under section 1341. One of the foundations for Plaintiffs’ claims, is their allegation that the fees collected will be funneled into Maine’s general fund, rather than being applied directly to the costs of jury trials. See Complaint at ¶1¶ 29-33, 43, 47, 51, 55, 57, 62, 63, 64, 72 (Docket No. 1). See also Plaintiffs’ Statement of Material Facts As To Which There is No Genuine Issue at 1T1T16 (“All revenue received from the Administrative Order goes to the State of Maine General Fund”), 17 (“The revenues raised by the Administrative Order are not dedicated to paying for the cost of civil jury.trials”) (Docket No. 25)." }, { "docid": "12403371", "title": "", "text": "federal government’s enumerated powers, and some of those taxes may well be “Bills for raising Revenue.” The mere existence of another source of Congressional power, then, cannot be what insulates a measure from the Origination Clause. Conversely, a measure that would not be a “Bill[ ] for raising Revenue” does not become one simply because Congress lacks an independent basis (apart from the taxing power) to enact it. For example, Sissel contends that the tax to finance railroad projects in Millard was not a “Bill[ ] for raising Revenue” because, among other things, Congress possessed exclusive constitutional jurisdiction over the District of Columbia. Reply Br. 7; see U.S. Const, art. I, § 8, cl. 17. Yet nothing in Millard hints that Congress’s authority over the District of Columbia affected the Origination Clause inquiry in that case. See Millard, 202 U.S. at 436-37, 26 S.Ct. 674. In sum, under Supreme Court precedent, the presence of another constitutional power does not suggest that a provision is not a “Bill[ ] for raising Revenue,” and the absence of another constitutional power does not, in itself, suggest that it is. Because the existence of another power is not necessary (or sufficient) to exempt a bill from the Origination Clause, the mere fact that Section 5000A may have been enacted solely pursuant to Congress’s taxing power does not compel the conclusion that the entire Affordable Care Act is a “Bill[ ] for raising Revenue” subject to the Origination Clause. Where, as here, the Supreme Court has concluded that a provision’s revenue-raising function is incidental to its primary purpose, see NFIB, 132 S.Ct. at 2596, the Origination Clause does not apply. The analysis is not altered by the fact that the shared responsibility payment may in fact generate substantial revenues. In light of the Supreme Court’s historical commitment to a narrow construction of the Origination Clause, this court can only hold that the challenged measure' — whose primary purpose “plainly” was not to raise revenue, id. at 2596— falls outside the scope of the Clause. Accordingly, we affirm the dismissal of the complaint for failure to" }, { "docid": "12403369", "title": "", "text": "(1950), the Supreme Court stated: It is beyond serious question that a tax does not cease to be valid [under the taxing power] merely because it regulates, discourages, or even definitely deters the activities taxed. The principle applies even though the revenue obtained is obviously negligible, or the revenue purpose of the tax may be secondary. Nor does a tax statute necessarily fall because it touches on activities which Congress might not otherwise regulate. Id. at 44, 71 S.Ct. 108 (emphasis added; citations omitted). That view was reiterated in United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953), where the Court upheld “a tax on persons engaged in the business of accepting wagers,” id. at 23, 73 S.Ct. 510, notwithstanding the argument that “the sole purpose of the statute is to penalize ... illegal gambling in the states through the guise of a tax measure,” id. at 28, 73 S.Ct. 510, abrogated on other grounds by Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968). Because not all of Congress’s exercises of the taxing power are primarily aimed at raising revenue, and a measure is a “Bill[ ] for raising Revenue” only if its primary purpose is to raise general revenues, some exercises of the taxing power are not subject to the Origination Clause. The Supreme Court’s decisions in Nebeker and Millard confirm this point: Not all “taxes” are “Bills for raising Revenue.” See Nebeker, 167 U.S. at 202, 17 S.Ct. 766; Millard, 202 U.S. at 436-37, 26 S.Ct. 674. Sissel’s attempts to distinguish the Supreme Court’s “tax” cases confirm that the Origination Clause inquiry does not hinge on the existence (or absence) of another source of constitutional authority. For instance, Sissel contends that the tax on circulating notes in Nebeker was not a “Bill[ ] for raising Revenue” because, among other things, it was enacted “in furtherance of Congress’s Article I power to coin money.” Reply Br. 6; see U.S. CONST, art. I, § 8, cl. 5. But many taxes are imposed to raise revenue in furtherance of the" }, { "docid": "16472061", "title": "", "text": "insurance carriers operating in the state” and “participation in the fund is mandatory for employers in Ohio,” 36 B.R. at 409, the payments due to the fund under the statute were insurance premium payments, not a tax. Id. at 410. The court was influenced by the fact that the Ohio statute used the word “premium,” the premiums were, determined by factors consistent with insurance principles, the fund was audited by recognized insurance actuaries, the fund was only to pay workers’ compensation claims and not for the benefit of the general public, and Ohio chose to cast itself in the role of an insurer. Id. Contra, In re Carlton Enterprises, Inc., 103 B.R.. 876 (N.D.Ohio 1989); and In re Primeline Industries, Inc., 103 B.R. 861 (N.D.Ohio 1987). Similarly, in Brock v. Washington Metropolitan Area Transit Authority, 796 F.2d 481 (D.C.Cir.1986), the court, interpreting the District of Columbia’s Workers’ Compensation scheme, concluded that the sums payable to the workers’ compensation fund were fees rather than taxes because the “primary purpose of the [statute] is regulation, not the raising of revenues.” Id. at 488. The court characterized the fee as a “user fee,” as opposed to a “proscribed tax.” Id. at 484. The court determined that the “entire workers’ compensation scheme, of which the Special Fund is an integral part, regulates employers’ liability for industrial accidents,” id. at 488; the “fees are not designed to raise revenues for public goods.” Id. at 489. In Union Pacific R.R. v. Public Utility Commission, 899 F.2d 854 (9th Cir.1990), the Ninth Circuit Court of Appeals was called upon to determine whether levies imposed on railroads under an Oregon statute to recoup costs of regulating railroads within the state were “taxes.” The Court of Appeals relied upon a determination of the Supreme Court in Edye v. Robertson, 112 U.S. 580, 595-96, 5 S.Ct. 247, 252-53, 28 L.Ed. 798 (1884), that the purpose of the levies required by the act in issue in that ' case “was merely a means of requiring those who profited from the business to pay the costs of regulating it.” The Court concluded" }, { "docid": "16481408", "title": "", "text": "U.S.C. § 1341, provides that the federal courts “shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” The district court correctly rejected the County’s contention that the Act rendered the court without jurisdiction to enjoin enforcement of Ordinance 12. Whether Ordinance 12 constitutes a “tax” for purposes of the Tax Injunction Act is a question of federal law, and we need not defer to the County’s characterization of the Ordinance. Wright v. McClain, 835 F.2d 143, 144 (6th Cir.1987). The Ordinance obviously raises revenue by way of the tipping fees charged by the HERC facility. This does not, however, render the Ordi nance a tax. The Ordinance’s primary purpose is clearly regulatory, rather than revenue-raising. See Government Suppliers Consolidating Services v. Bayh, 975 F.2d 1267, 1271 n. 2 (7th Cir.1992) (fees generated by a flow control ordinance do not come within the Tax Injunction Act). Furthermore, the plaintiffs do not question the County’s authority to levy taxes. Rather, they challenge the County’s regulation of their ability to deliver waste to the facilities of their choice. While the relief they seek may well affect the revenue that the County raises from the designated facilities, this secondary economic effect would not require the court to enjoin, suspend, or restrain any tax collection. Cf. Harvey & Harvey v. Delaware Solid Waste Auth., 600 F.Supp. 1369, 1375-76 (D.Del.1985). Finally, we note that the County’s argument would apply to the similar challenge to a flow control ordinance in Carbone, yet the Supreme Court in that ease did not even question federal jurisdiction in striking the ordinance. We conclude that the Tax Injunction Act does not bar federal jurisdiction in this matter. C. Commerce Clause The Commerce Clause of the United States Constitution grants Congress the power “[t]o regulate Commerce ... among the several States.” U.S. Const, art I, § 8, cl. 3. The Supreme Court has long held that this grant of power to Congress contains negative implications that restrict states’" }, { "docid": "1713017", "title": "", "text": "Freeman, 379 F.2d 382, 390-92 (9th Cir. 1967), that a charge imposed on farmers as a condition to exporting grain did not violate the prohibition in article I, section 9, clause 5 of a \"tax or duty” on exports. The primary purpose of the charge was not to raise revenue by taxing exports, but rather to recover from farmers a part of the cost of a program to regulate farm production. . The Transit Authority also challenged the assessment on the ground it violated the \"doctrine of intergovernmental tax immunity.” The court found the assessment was a user fee for purposes of that doctrine. Brock, 796 F.2d at 484-487; see Massachusetts v. United States, 435 U.S. 444, 465-69, 98 S.Ct. 1153, 1166-68, 55 L.Ed.2d 403 (1978). .Union Pacific argues that a distinction should be taken between a levy intended to implement a regulatory program directly by altering the conduct of the payer and one intended simply to pay the cost of the regulatory program: that the latter is indistinguishable from any other tax to raise revenue to pay the cost of government operations. Union Pacific has cited no decision resting upon this distinction, and it is clearly inconsistent with the holding in Head Money Cases. . It should be emphasized that there is no potential constitutional issue in this case that could be avoided by reading the term \"tax” in § 11503(b)(4) of the 4-R Act to include, and hence bar, a levy of the kind imposed by Or. Rev.Stat. § 756.310. . See Brock, 796 F.2d 481; Block, 717 F.2d 874; Moon, 379 F.2d 382; Stangland, 242 F.2d 843; Rodgers, 138 F.2d 992. Unless voluntary is defined so broadly as to be essentially meaningless, all of these decisions are also inconsistent with Union Pacific’s contention that a levy cannot be classified as a “fee” rather than a \"tax” if payment is obligatory rather than the consequence of a voluntary act. See also United States v. Sperry Corp., - U.S. -, 110 S.Ct. 387, 395, 107 L.Ed.2d 290 (1989). . See, e.g., United States v. River Coal Co., 748 F.2d" }, { "docid": "12403370", "title": "", "text": "Because not all of Congress’s exercises of the taxing power are primarily aimed at raising revenue, and a measure is a “Bill[ ] for raising Revenue” only if its primary purpose is to raise general revenues, some exercises of the taxing power are not subject to the Origination Clause. The Supreme Court’s decisions in Nebeker and Millard confirm this point: Not all “taxes” are “Bills for raising Revenue.” See Nebeker, 167 U.S. at 202, 17 S.Ct. 766; Millard, 202 U.S. at 436-37, 26 S.Ct. 674. Sissel’s attempts to distinguish the Supreme Court’s “tax” cases confirm that the Origination Clause inquiry does not hinge on the existence (or absence) of another source of constitutional authority. For instance, Sissel contends that the tax on circulating notes in Nebeker was not a “Bill[ ] for raising Revenue” because, among other things, it was enacted “in furtherance of Congress’s Article I power to coin money.” Reply Br. 6; see U.S. CONST, art. I, § 8, cl. 5. But many taxes are imposed to raise revenue in furtherance of the federal government’s enumerated powers, and some of those taxes may well be “Bills for raising Revenue.” The mere existence of another source of Congressional power, then, cannot be what insulates a measure from the Origination Clause. Conversely, a measure that would not be a “Bill[ ] for raising Revenue” does not become one simply because Congress lacks an independent basis (apart from the taxing power) to enact it. For example, Sissel contends that the tax to finance railroad projects in Millard was not a “Bill[ ] for raising Revenue” because, among other things, Congress possessed exclusive constitutional jurisdiction over the District of Columbia. Reply Br. 7; see U.S. Const, art. I, § 8, cl. 17. Yet nothing in Millard hints that Congress’s authority over the District of Columbia affected the Origination Clause inquiry in that case. See Millard, 202 U.S. at 436-37, 26 S.Ct. 674. In sum, under Supreme Court precedent, the presence of another constitutional power does not suggest that a provision is not a “Bill[ ] for raising Revenue,” and the absence of" }, { "docid": "1713004", "title": "", "text": "of the passengers whom they bring among us and for the protection of the citizens among whom they are landed. Id. at 596, 5 S.Ct. at 252. The Court concluded, “[i]f this is an expedient regulation of commerce by Congress, and the end to be attained is one falling within that power, the act is not void, because, within a loose and more extended sense than was used in the Constitution, it is called a tax.” Id. Subsequent cases have held in a variety of contexts that government levies did not constitute “taxes” in light of the nature of the levy and the purpose of the pertinent constitutional or statutory provision. For example, the Fourth Circuit in South Carolina ex rel. Tindal v. Block, 717 F.2d 874 (4th Cir.1983), followed the rationale of the Head, Money Cases in holding that the concerns underlying the constitutional limitations imposed on the taxing power by article I, section 8 are relevant to measures having the primary objective of raising revenues for the general support of government, but not to measures having the primary objective of regulating commerce. Thus, a levy to collect the costs of regulation from those regulated is not to be treated as a tax to which the limitations of article I, section 8 apply. Id. at 887; see also United States v. Stangland, 242 F.2d 843, 848 (7th Cir.1957); Rodgers v. United States, 138 F.2d 992, 994-95 (6th Cir.1943). In Brock v. Washington Metropolitan Area Transit Authority, 796 F.2d 481 (D.C.Cir.1986), the Transit Authority challenged a workers’ compensation assessment, claiming the assessment violated the provision of an interstate compact, approved by Congress, granting the Transit Authority immunity from “taxes or assessments.” Id. at 487. The D.C. Circuit Court of Appeals rejected this argument. The court first looked to the purpose of the Transit Authority’s tax immunity, and concluded that treating the employer’s contribution to the workers’ compensation fund as one of the “taxes or assessments” barred by the compact would not serve that purpose. Id. at 487-89. The court reasoned that the purpose of the immunity was to avoid having" }, { "docid": "23178589", "title": "", "text": "statement preserves the FCC's attempt to exceed its jurisdictional boundaries on the ground that it cannot regulate an interstate matter without also regulating an intrastate matter. . See, e.g., Public Util. Comm’n v. FCC, 886 F.2d 1325 (D.C.Cir.1989); Illinois Bell Tel. Co. v. FCC, 883 F.2d 104 (D.C.Cir.1989); National Ass'n of Regulatory Util. Comm’rs v. FCC, 880 F.2d 422 (D.C.Cir.1989). . \"The Commission may prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this Act.\" 47 U.S.C. § 201(b). . Accord Louisiana PSC, 476 U.S. at 376 n. 5, 106 S.Ct. 1890 (\"[Section] 152(b) not only imposes jurisdictional limits on the power of a federal agency, but also, by stating that nothing in the Act shall be construed Lo extend FCC jurisdiction to intrastate service, provides its own rule of statutory construction.”) . See supra part III.A.3. . \"A carrier that receives such support shall use that support only for the provision, maintenance, and upgrading of facilities and services for which the support is intended.” . National Association of State Utility Consumer Advocates. . Intervenor American Cable Television Association challenges the FCC for failing to meet the requirements of the Regulatory Flexibility Act before promulgating the Order. None of the petitioners raises this argument, nor does the FCC respond to it, and therefore we do not consider it. See discussion of MCI's intervenor argument, infra part III. A.6.b. .U.S. Const., art. I, § 8, cl. 1 (\"The Congress shall have Power to lay and collect Taxes....”). . See Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56 (1996) (enacting S. 652). . U.S. Const., art. I, § 7, cl. 1 (\"All Bills for Raising Revenue shall originate in the House of Representatives.”) . The Taxing Clause analysis focuses on whether the assessment is a tax or a fee. This question is usually resolved based on whether the revenues are used to primarily defray the expenses of regulating the act. See National Cable Television Ass'n v. United States, 415 U.S. 336, 340, 94 S.Ct. 1146, 39 L.Ed.2d 370 (1974). If" }, { "docid": "7230316", "title": "", "text": "F.2d at 376; Tramel v. Schrader, 505 F.2d 1310, 1314-15 (5th Cir.1975). Cf. South Carolina ex rel. Tindal v. Block, 717 F.2d 874, 887 (4th Cir.1983) (defining “tax” in the context of the federal Constitution’s assignment of the taxing power), cert. denied, 465 U.S. 1080, 104 S.Ct. 1444, 79 L.Ed.2d 764 (1984). There is no question that the $300 jury fee fits comfortably within this definition of a “tax” under section 1341. One of the foundations for Plaintiffs’ claims, is their allegation that the fees collected will be funneled into Maine’s general fund, rather than being applied directly to the costs of jury trials. See Complaint at ¶1¶ 29-33, 43, 47, 51, 55, 57, 62, 63, 64, 72 (Docket No. 1). See also Plaintiffs’ Statement of Material Facts As To Which There is No Genuine Issue at 1T1T16 (“All revenue received from the Administrative Order goes to the State of Maine General Fund”), 17 (“The revenues raised by the Administrative Order are not dedicated to paying for the cost of civil jury.trials”) (Docket No. 25). In sum, the fees are clearly being imposed for general revenue-raising purposes. The Administrative Order imposes a “tax under state law” as that phrase is used in 28 U.S.C. section 1341. Plaintiffs’ second argument — that Defendants should not be permitted to serve as judges in their own case — appears to be an allegation that Maine’s state courts cannot provide Plaintiffs with a “plain, speedy and efficient remedy” in this case. The availability of a full hearing and judicial determination of the controversy is sufficient to satisfy the plain, speedy, and efficient remedy required by section 1341. Rosewell, 450 U.S. at 513-14, 101 S.Ct. at 1229-30. Plaintiffs have made no showing that they have been or will be deprived of a full and fair opportunity to vindicate their rights in state court. In fact, Plaintiffs are already pursuing a separate action in state court. The Court has no basis for concluding that a plain, speedy, and efficient remedy is not available to Plaintiffs in Maine’s state courts. The fact that Defendant SJC will be" }, { "docid": "19765635", "title": "", "text": "been understood that taxes under State law can include many assessments that may not be taxes for purposes of federal law. Specifically, while the Constitution gave Congress the “Power to lay and collect Taxes,” U.S. Const, art. I, § 8, this power is limited in several ways. It has been debated, for example, whether the power to tax afforded by Article I can be delegated by Congress to administrative agencies. See, e.g., National Cable Television Ass’n, Inc. v. United States, 415 U.S. 336, 94 S.Ct. 1146, 39 L.Ed.2d 370 (1974). Also, taxes must be “uniform” under Section 8 of Article I and, thus, have to apply “ ‘with the same force and effect in every place where the subject of it is found.’ ” Fernandez v. Wiener, 326 U.S. 340, 359, 66 S.Ct. 178, 90 L.Ed. 116 (1945) (quoting Head Money Cases (Edye v. Robertson), 112 U.S. 580, 594, 5 S.Ct. 247, 28 L.Ed. 798 (1884)). Further, Article I, § 9 forbids Congress from leveling direct or capitation taxes except in proportion to the census or enumeration commanded by the Constitu tion. Aware and perhaps because of these limits, the Supreme Court has come to deem certain assessments as incidents of congressional authority arising from sources other than the (limited) taxing power discussed in Article I. Thus, for example, in National Cable Television Association, the Court faced a statute that allowed the Federal Communications Commission to prescribe, inter alia, a “fee, charge, or price, if any,” in order to make the agency work self-sustaining. 415 U.S. at 337, 94 S.Ct. 1146 (quoting 31 U.S.C. § 483a). Mindful of the canon of constitutional avoidance and anxious to “avoid constitutional problems” that it perceived might exist if the statute were read to be an (arguably impermissible) delegation of Congress’s taxing power to an administration agency, the Court held that the “fee” was not a “tax” for Article I purposes because it sought only to cover the costs of an associated administrative regulation rather than aid in revenue raising. Id. at 340-41, 94 S.Ct. 1146. Similarly, in the Head Money Cases, the Court" }, { "docid": "1713015", "title": "", "text": "the constitutional issues pending decision on whether the 4-R Act covers the challenged assessment. . Union Pacific also sought and obtained an injunction against collection of the levy. The Oregon Public Utilities Commission contends the district court did not have jurisdiction to issue such an injunction. Because we hold the levy is not a discriminatory tax within the meaning of § 11503(b)(4), we do not reach the issue of jurisdiction to enjoin collection of a tax that falls within the section. . For the year ending June 30, 1987, the Commission’s budget for railroad regulation was $1,248,139 allocated approximately as follows: Crossing Safety $ 297,425 Railroad Employee Safety $ 169,817 Federal Rail Safety Program 254,115 Railroad Rates and Service 85,007 Hazardous materials 17,838 Administration 83,308 Indirect Costs 321,605 Revenue Transfer to Oregon Dep't of Transportation for Rail Planning 19,023 TOTAL $1,248,139 These expenditures were funded from the following sources: Rail Assessment $ 986,932 Federal Funds: Track and Equipment 159,465 Crossing Safety 12,500 Penalties and Fines 11,267 Miscellaneous Receipts 17,712 TOTAL $1,187,876 The Commission did not explain the $60,000 difference between expenditures and identified sources. . For example, Congress requested the Association of American Railroads \"to submit any pertinent information available on relative tax discrimination in the matter of State and local taxes.” S.Rep. No. 445, 87th Cong., 1st Sess. 458 (1961), quoted in Ogilvie v. State Bd. of Equalization, 657 F.2d 204, 206 (8th Cir.1981). The data submitted in response made no mention of the levies widely imposed to pay the costs of state railroad regulations. See abo H.R.Rep. No. 725, 94th Cong., 1st Sess. 76-78 (1975); S.Rep. No. 630, 91st Cong., 1st Sess. 2-9 (1969); S.Rep. No. 1483, 90th Cong., 2d Sess. 2-8 (1968). . As the court of appeals said in Brock v. Washington Metro. Area Transit Auth., 796 F.2d 481, 489 (D.C.Cir.1986), \"[t]he definition of ‘tax' in the abstract is a metaphysical exercise in which courts do not have occasion to engage. The term comes before judges embedded in legal contexts from which the word gains concrete and specific meaning.\" . Similarly, we held in Moon v." } ]

[ { "docid": "1542097", "title": "", "text": "ORDER SEAR, Chief Judge. Considering plaintiff Barbara Sherman’s “Motion for Remand, and Alternatively Motion for Abstention under 28 USCA 1334(c)” and the opposition filed by defendant Gulf Pride Marine Services, Inc. I find that the Fifth Circuit has not decided whether the prohibition against removal of Jones Act cases applies when there exists an independent basis for removal under the bankruptcy “related to” statute. See 28 U.S.C. § 1334; 28 U.S.C. § 1452. However, I find the reasoning in Kinder v. Wisconsin Barge Line, Inc., 69 B.R. 11 (E.D.Mo.1986), to be correct and, therefore, conclude that the general prohibition against removal of Jones Act cases does apply in this case. Although the parties expend considerable effort discussing the doctrine of abstention, my disposition of the plaintiff’s motion obviates the need to reach this issue. Accordingly, IT IS ORDERED that plaintiffs motion is GRANTED and that the case is hereby REMANDED to state court for further proceedings." } ]

[ { "docid": "13420878", "title": "", "text": "on the grounds that (1) the structure was not a vessel and, therefore, Johnson was not a seaman covered by the Jones Act and (2) Johnson did not allege facts that would give rise to a claim under the LHWCA. 679 F.Supp. 604. Johnson now appeals. II. Johnson argues first that the district court erred in refusing to remand this cause of action to state court. Because Jones Act cases are nonremovable, Johnson argues that the case was wrongfully removed. Further, he alleges he never waived the right to remand the case to state court. As a general rule, Jones Act cases are not removable. Preston v. Grant Advertising, Inc., 375 F.2d 439, 440 (5th Cir.1967); 28 U.S.C. § 1445(a). However, in certain circumstances a party may waive his right to have a case remanded even after a wrongful removal. Grubbs v. General Electric Credit Corp., 405 U.S. 699, 702, 92 S.Ct. 1344, 1347, 31 L.Ed.2d 612 (1972). This court, sitting en banc, recently /held that where a plaintiff in a Jones Act /case fails to object promptly to removal and “participates in the conduct of that action,” then it is within the district court’s discretion to determine whether the plaintiffs conduct amounts to a waiver of the right to remand. Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116, 118 (5th Cir.1987). Thus, under Lirette, the extent of a plaintiffs conduct in the federal proceedings determines whether he has “waived his statutory right to object to the exercise of subject matter jurisdiction by the United States district court.” Id. Johnson contends that according to these cases, a party waives the right to remand only if he fails to protest the removal before final judgment. ODECO, on the other hand, argues that if a party has participated in discovery and other pretrial litigation matters in federal court following removal, he has waived his right to remand. ODECO’s analysis of the law is correct. The language of Lirette is clear: When a Jones Act plaintiff who has selected a state forum fails to object to the removal of that action to" }, { "docid": "1193725", "title": "", "text": "ORDER AND MEMORANDUM GUNN, District Judge. IT IS HEREBY ORDERED that plaintiff's motion to remand the above-styled action to the Circuit Court for the City of St. Louis be and it is granted. Defendant shall pay the costs incurred by plaintiff as a result of the improper removal. Plaintiff Robert E. Kinder commenced this action against defendant Wisconsin Barge Line, Inc. (WBL) under the Jones Act, 46 U.S.C. § 688, by filing a petition in the Circuit Court for the City of St. Louis on July 31, 1984. Defendant duly answered in the Circuit Court proceedings and the action proceeded toward a trial setting of July 28, 1986. On January 13, 1986 WBL filed a voluntary petition for bankruptcy under Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the Eastern District of Missouri. On June 2,1986 WBL filed its petition for removal of the instant cause of action pursuant to 28 U.S.C. § 1452(a). Because this Court finds the jurisdiction conferred upon it by 28 U.S.C. § 157(b)(5) to be discretionary and because actions commenced in state court under the Jones Act are not subject to removal to federal court, Pate v. Standard Dredging Corp., 193 F.2d 498 (5th Cir.1952), see generally, C. Black & G. Gilmore, The Law of Admiralty § 6-28 (2d ed. 1975), the Court concludes that removal of the action to federal court was improper and remands the action to the Circuit Court for the City of St. Louis. 28 U.S.C. § 1452(a) provides: A party may remove any claim or cause of action in a civil action ... to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title. It is undisputed that this Court would have original jurisdiction over plaintiff’s complaint under either the Jones Act itself, which extends concurrent jurisdiction to state and federal courts, Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813 (1926); Panama R. Co. v. Vasquez, 271 U.S." }, { "docid": "6959601", "title": "", "text": "1445(a) precludes the claims procedure fashioned by the bankruptcy court. Kubicik and Franklin ask that this court reverse the May, 1988 order and terminate or modify the automatic stay as it relates to their pending claims in state forums with the understanding that any resulting judgments be enforced only through the bankruptcy proceeding. After notice and hearing, the bankruptcy court may terminate or modify an automatic stay for cause. 11 U.S.C. § 362(d)(1). A bankruptcy court’s legal conclusions are reviewed de novo, while its factual findings are reviewed under the clearly erroneous standard. Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987). Moreover, “[fjindings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses.” Bankruptcy Rule 8013. “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). The question initially raised by our review of the bankruptcy court’s conclusions of law is whether the bankruptcy court’s claim procedure is jurisdictionally defective. See Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116, 117-18 (5th Cir.1987) (en banc) (Jones Act incorporates 28 U.S.C. § 1445(a), which precludes removal of claims from state to federal court); Kinder v. Wisconsin Barge Line, Inc., 69 B.R. 11, 12 (E.D.Mo.1986) (28 U.S.C. § 157(b)(5) does not override the provision incorporated by the Jones Act precluding removal to federal court). This specific question, like Kubicik and Franklin’s recusal argument, is raised for the first time on appeal and, as far as we know, has neither been presented to nor addressed by the court below. See Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 2877-78, 49 L.Ed.2d 826 (1976) (appellate court generally should not address merits when those merits were never presented to court below). We" }, { "docid": "23001323", "title": "", "text": "in the limited cases it expressly excepts. The NYCERS Defendants correctly rely on Gonsalves v. Amoco Shipping Co., 733 F.2d 1020 (2d Cir.1984), as supporting their removal of these actions. Gonsalves considered the explicit statutory bar to the removal of Jones Act claims. The Jones Act removal bar, contained in 28 U.S.C. § 1445(a), like Section 22(a), provides plaintiff with a choice-of-forum privilege. See 28 U.S.C. § 1445(a). It prevents the removal to federal court of Jones Act claims filed in state court. Gonsalves, 733 F.2d at 1022. In Gonsalves, the non-removable Jones Act claim was joined with a claim for unseaworthiness, under general maritime law, and also sought maintenance and cure. No explicit bar to removal applies to either of these latter two claims, and diversity jurisdiction existed over the maintenance and cure claim. The defendant removed pursuant to Sections 1441(a) and 1441(c), the former of which allows for the removal of an action over which federal courts have original jurisdiction, and the latter of which provides that “[wjhenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title [federal question jurisdiction] is joined with one or more otherwise non-removable claims or causes of action, the entire ease may be removed....” 28 U.S.C. § 1441(c). The Second Circuit found that the maintenance and cure and Jones Act claims were not sufficiently “independent” to defeat the choice-of-forum preference found in Section 1445(a). Gonsalves, 733 F.2d at 1026. The Second Circuit nonetheless declined to hold that Section 1445(a) overrides Section 1441(c). Id. In other words, the Second Circuit found that the Jones Act removal bar provided an express exception to removal under Section 1441(a), but did not create an exception from the “additional removal jurisdiction” available under Section 1441(c) for cases that otherwise could not be removed. Id. at 1022 (citation omitted). Applied to Section 22(a), a similar analysis would mean that Section 22(a)’s bar to the removal of 1933 Act claims would not prevent an action from being removed to federal court if there was a separate, appropriate basis for the" }, { "docid": "6585422", "title": "", "text": "to remand and for reconsideration, the district court again denied remand, holding that by virtue of Linton’s designation of his claim as an “admiralty or general maritime claim,” the federal court had exclusive jurisdiction in admiralty. Linton v. Great Lakes Dredge & Dock Co., No. 90-1780, Amended Ruling at 3, 1990 WL 300831 (W.D.La.1990). The court also certified the order in accordance with the provisions of 28 U.S.C. § 1292(b). Linton timely petitioned this court for permission to appeal, which was granted, and this appeal followed. II Our discretionary grant of an appeal in this case limits us to the sole question of the propriety of the district court’s refusal to remand this case to the Louisiana court. See 16 CHARLES A. WRIGHT ET AL„ FEDERAL PRACTICE AND PROCEDURE § 3929 at 143 (1977) (scope of issues open to court of appeals is closely limited to the order appealed from) (hereinafter Wright & Miller). This refusal is subject to appellate review. See, e.g., In re Dutile, 935 F.2d 61, 62 (5th Cir.1991) (court granted application for writ of mandamus after district court refused to certify appeal of order denying motion to remand). Although it might appear that a plain reading of 28 U.S.C. § 1445(a) (Jones Act cases filed in state court are not removable) decides this case, we have nevertheless held that this statutory bar to removal may be waived by the plaintiff. Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116 (5th Cir.1987). If, as Great Lakes argues, Linton’s article 1732(6) election amounted to election of an exclusive federal admiralty remedy, then that election was also a waiver of the bar to removal and we may not say that this case simply was not removable in the first instance. We, therefore, turn to examine the merits of the district court’s refusal to remand this case. In examining the nature of these claims, we point out that Linton presents both general maritime and Jones Act claims. Each stems from different historical roots and, thus, we must consider them separately because these different origins bear directly upon the jurisdictional significance" }, { "docid": "6959602", "title": "", "text": "has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). The question initially raised by our review of the bankruptcy court’s conclusions of law is whether the bankruptcy court’s claim procedure is jurisdictionally defective. See Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116, 117-18 (5th Cir.1987) (en banc) (Jones Act incorporates 28 U.S.C. § 1445(a), which precludes removal of claims from state to federal court); Kinder v. Wisconsin Barge Line, Inc., 69 B.R. 11, 12 (E.D.Mo.1986) (28 U.S.C. § 157(b)(5) does not override the provision incorporated by the Jones Act precluding removal to federal court). This specific question, like Kubicik and Franklin’s recusal argument, is raised for the first time on appeal and, as far as we know, has neither been presented to nor addressed by the court below. See Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 2877-78, 49 L.Ed.2d 826 (1976) (appellate court generally should not address merits when those merits were never presented to court below). We have additional concerns in that the record in this ease is not complete and we are unable effectively to review the factual findings of the bankruptcy court without more information. The record does not contain a transcript of the proceedings below, as they were not transcribed and Kubi-cik and Franklin did not attempt to reconstruct those proceedings. See Fed.R. App.P. 10(c) (statements of evidence may be used to reconstruct the record when transcript not available); cf. Pruitt v. Hutto, 574 F.2d 956, 957-58 (8th Cir.) (per curiam) (effective review possible, without transcript, when events reconstructed from parties’ recollection), cert. denied, 439 U.S. 870, 99 S.Ct. 201, 58 L.Ed.2d 182 (1978). Moreover, the bankruptcy court stated in its order that in making its decision it relied on evidence that was separate and apart from the pleadings, the statement of coun sel, and the report and recommendations of the examiner. We can only assume, in absence of proof otherwise and because the examiner’s findings and the court’s findings on the number of pending claims appear to be" }, { "docid": "773751", "title": "", "text": "rejected removal of a seaman’s suit containing a maintenance claim because that claim lacked sufficient amount-in-controversy. As Judge Friendly correctly observed in a plurality opinion for the Second Circuit, sitting en banc, the Pate court “assumed” (or at least appears to have assumed) that a maintenance claim is separate from a Jones Act claim for purposes of section 1441(c). Fitzgerald v. United States Lines Co., 306 F.2d 461, 472 (2d Cir.1962) (Part IV of the opinion of Judge Friendly, in which Judges Lumbard, Moore and Kaufman join), rev’d on other grounds, 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963). Our only question, therefore, is whether section 1441(c) withstands section 1445(a). Two district courts in the North have explicitly held that an independent claim for maintenance and cure will, when joined with a Jones Act claim, permit removal of the entire action. See Gilliken v. J.A. LaPorte, Inc., No. HM-82-2479 (D.Md.1983) (unpublished opinion); Sawyer v. Federal Barges Lines, Inc., 510 F.Supp. 39 (S.D.Ill.1981). And the Second Circuit, while disagreeing with our finding that Jones Act and maintenance-and-cure claims are “independent” for removal purposes, has nonetheless conceded that section 1441(c) applies to Jones Act claims. See Gonsalves v. Amoco Shipping Co., 733 F.2d 1020, 1022-23 (2d Cir.1984). Indeed, it is impossible to arrive at a contrary conclusion if section 1441(c) is read in light of the restriction in section 1441(a). Section 1441(a) grants the general right of removal to defendants in any case that originally could have been brought in federal court, except cases where irremovability has been “otherwise expressly provided by Act of Congress.” But subsection (c) is not subject to the restriction contained in subsection (a). For these reasons, we hold that section 1441(c) prevails over section 1445(a) and DENY the Howards’ Motion to Remand in all respects. . Transworld argues that Mrs. Howard’s claim for loss of society also is an independent claim that would be removable if sued upon alone. But we need not decide that question after finding, infra, that Mr. Howard's claim for maintenance and cure is distinct and removable. If section 1441(c) withstands" }, { "docid": "16773844", "title": "", "text": "used for the trial of what is essentially one lawsuit to settle one claim split conceptually into separate parts because of historical developments.” Id. at 21, 83 S.Ct. at 1650 (emphasis added). Of course, neither Pacific Steamship nor Fitzgerald was describing the relationship between Jones Act and maintenance claims for purposes of section 1441(c). Thus, the reference to the “independent” nature of the claims in Pacific Steamship is no more dispositive of the section 1441(c) issue than the reference to “essentially ... one claim” in Fitzgerald. We therefore turn to the prior case law on the section 1441(c) issue. Apart from the District Court’s ruling in this case, the issue has been squarely ruled upon, in reported decisions, only by three district courts, all of which have rejected removal. Stokes v. Victory Carriers, Inc., 577 F.Supp. 9 (E.D.Pa.1983) (alternate holding); Skaw v. Lady Pacific, Inc., 577 F.Supp. 2 (D.Alaska 1983); Sawyer v. Federal Barge Lines, Inc., 577 F.Supp. 37 (S.D.Ill.1982). Sawyer is a ruling upon reconsideration, which vacated an earlier contrary ruling, 510 F.Supp. 39, on which the District Court in our case had relied. All three decisions, including the reconsideration of Sawyer, were published after Judge Stewart’s ruling. There are, however, two pertinent decisions of the Fifth Circuit and our own Circuit. In Pate v. Standard Dredging Corp., 193 F.2d 498 (5th Cir.1952), the Court, after concluding that an unseaworthiness claim was not separate and distinct from a Jones Act claim, proceeded to reject removal of a suit containing a maintenance claim solely because the maintenance claim failed to satisfy the requisite jurisdictional amount. As Judge Friendly later observed in a plurality opinion for four members of an in banc court, the opinion in Pate “assumed” (or at least appears to have assumed) that a maintenance claim was separate and distinct from a Jones Act claim for purposes of section 1441(c). Fitzgerald v. United States Lines Co., 306 F.2d 461, 472 (2d Cir.1962) (Part IV of opinion of Friendly, J., in which Lumbard, Moore, and Kaufman, JJ., join), rev’d on other grounds, 374 U.S. 16, 83 S.Ct. 1646, 10" }, { "docid": "1193726", "title": "", "text": "to be discretionary and because actions commenced in state court under the Jones Act are not subject to removal to federal court, Pate v. Standard Dredging Corp., 193 F.2d 498 (5th Cir.1952), see generally, C. Black & G. Gilmore, The Law of Admiralty § 6-28 (2d ed. 1975), the Court concludes that removal of the action to federal court was improper and remands the action to the Circuit Court for the City of St. Louis. 28 U.S.C. § 1452(a) provides: A party may remove any claim or cause of action in a civil action ... to the district court for the district where such civil action is pending, if such district court has jurisdiction of such claim or cause of action under section 1334 of this title. It is undisputed that this Court would have original jurisdiction over plaintiff’s complaint under either the Jones Act itself, which extends concurrent jurisdiction to state and federal courts, Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813 (1926); Panama R. Co. v. Vasquez, 271 U.S. 557 (1926), or Title 11 of the United States Code, since this action is one related to the pending bankruptcy proceeding. Were it not, therefore, for the injunction against removal of Jones Act proceedings, the cause would now properly be before this Court. Defendant’s petition for removal ignores that injunction and argues that 28 U.S.C. § 157(b)(5) mandates that this Court take jurisdiction of the instant action. 28 U.S.C. § 157(b)(5) provides: The district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose.... Defendant reasonably reads this statutory language to vest exclusive jurisdiction over tort claims in the district court once proceedings in bankruptcy have commenced. This Court, however, upon consideration of the Bankruptcy Act and its legislative history as a whole, concludes that the language should not be construed in accordance with its “plain meaning,” and that § 157(b)(5) should not be read to divest" }, { "docid": "7619782", "title": "", "text": "Carriers, Inc., 577 F.Supp. 9 (E.D.Pa.1983); Skaw v. Lady Pacific, Inc., 577 F.Supp. 2 (D.Alaska 1983); Sawyer v. Federal Barge Lines, Inc., 577 F.Supp. 37 (S.D.Ill.1982) (vacating an earlier ruling, 510 F.Supp. 39, to the contrary). In Pate v. Standard Dredging Corp., 193 F.2d 498 (5th Cir.1952), we held that where there is but a single wrongful invasion of a single primary right, a claim for unseaworthiness joined with a claim under the Jones Act is not a separate and independent claim for the purposes of removal. Id. at 501. In Pate we did not address the removability issue with regard to appellant’s claim for maintenance and cure because the maintenance claim failed to satisfy the requisite jurisdictional amount to be removable. Texaco asserts that, unlike the plaintiff in Pate, Addison is seeking relief for the alleged invasion of two separate rights: contractual rights under maintenance and cure and rights founded in tort under the Jones Act. For support, Texaco cites Professors Gilmore and Black: “By unquestionable authority a maintenance and cure claim is ‘separate and independent’ from ... the Jones Act ... for the purposes of res judicata or § 1441(c) or anything else.” G. Gilmore and C. Black, The Law of Admiralty, § 6-28 at 358 (2d ed. 1975) (emphasis in original). The authors, however, go on to make clear that the cases to date have assumed that, notwithstanding a claim for maintenance and cure, the assertion of a Jones Act claim prevents removal of the entire action. Id. Texaco correctly points out that Jones Act negligence and maintenance and cure are based on different legal theories, and that the damages recoverable under each are different; as a result, it argues the two claims are separate and independent. While these distinctions are not insignificant, we are directed in this area to the guidelines established in American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951). In Finn, the Supreme Court held “that where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocking.series of transactions," }, { "docid": "16773835", "title": "", "text": "of operative facts are not separate and independent for purposes of section 1441(c) removal. Discussion Section 1441(c) permits removal of an entire case “[wjhenever 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.” 28 U.S.C. § 1441(c). In this case, the maintenance and cure claim is removable, as the District Judge ruled, since the complaint alleged the requisite diversity of citizenship and jurisdictional amount. 28 U.S.C. § 1441(a). The Jones Act claim, however, is not removable, Pate v. Standard Dredging Corp., 193 F.2d 498, 500 (5th Cir.1952); Demarac v. American Dredging Co., 486 F.Supp. 853, 854 (S.D.N.Y.1980), even though it is a federal claim for purposes of jurisdiction under 28 U.S.C. § 1331 (1982), see Romero v. International Terminal Operating Co., 358 U.S. 354, 359, 79 S.Ct. 468, 473, 3 L.Ed.2d 368 (1958), because Congress has explicitly prohibited removal of Jones Act claims. 28 U.S.C. § 1445(a) (1982); 46 U.S.C. § 688 (1976) (making statutes modifying remedies of railway employees applicable to seamen). Thus, this is not a typical section 1441(c) case in which a removable claim must be examined to see if it is “separate and distinct” from a claim for which federal jurisdiction was never authorized; here the removable claim is joined with a federal claim that Congress prefers to leave in state court if that is where a plaintiff has filed it. Our first inquiry therefore is whether section 1445(a) in effect overrides section 1441(c) and prevents the removal of a Jones Act claim even when joined with a “separate and independent” removable claim. We are confronted with a conflict between two statutory policies in the same chapter of the Judicial Code. Section 1441(c) reflects the Congressional judgment that plaintiff’s joinder of separate and independent claims, one of which is non-removable, should not destroy a defendant’s right to removal. However, section 1445(a) provides the Jones Act plaintiff with a choice-of-forum privilege. The question then is “where Congress intended the right granted a [Jones Act] claimant to" }, { "docid": "16773834", "title": "", "text": "recover for back injuries allegedly suffered while he was serving as Chief Officer aboard Amoco’s vessel, the S/S Amoco Connecticut. The complaint alleged negligence under the Jones Act, 46 U.S.C. § 688 (1976), and unseaworthiness under general maritime law, and sought maintenance and cure. All three claims arose from personal injuries allegedly sustained when plaintiff fell as his foot was entangled in a heaving line during undocking procedures. Amoco removed the action to the District Court pursuant to 28 U.S.C. § 1441(a) and (c) (1982). Gonsalves made a timely motion to remand, which the District Court denied. Following a trial on the merits, the jury returned a special verdict in favor of Amoco on the Jones Act and unseaworthiness claims. The maintenance and cure claim was not submitted to the jury for lack of evidence of a prima facie case. On appeal Gonsalves contends that this action was improperly removed from state court. For reasons that follow, we agree and conclude that Jones Act and maintenance and cure claims arising out of the same set of operative facts are not separate and independent for purposes of section 1441(c) removal. Discussion Section 1441(c) permits removal of an entire case “[wjhenever 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.” 28 U.S.C. § 1441(c). In this case, the maintenance and cure claim is removable, as the District Judge ruled, since the complaint alleged the requisite diversity of citizenship and jurisdictional amount. 28 U.S.C. § 1441(a). The Jones Act claim, however, is not removable, Pate v. Standard Dredging Corp., 193 F.2d 498, 500 (5th Cir.1952); Demarac v. American Dredging Co., 486 F.Supp. 853, 854 (S.D.N.Y.1980), even though it is a federal claim for purposes of jurisdiction under 28 U.S.C. § 1331 (1982), see Romero v. International Terminal Operating Co., 358 U.S. 354, 359, 79 S.Ct. 468, 473, 3 L.Ed.2d 368 (1958), because Congress has explicitly prohibited removal of Jones Act claims. 28 U.S.C. § 1445(a) (1982); 46 U.S.C. § 688 (1976) (making" }, { "docid": "23001322", "title": "", "text": "(2d Cir.2000) (applying this rule of statutory construction). Interpreting Section 1452 to allow removal for all actions over which there is bankruptcy jurisdiction, saving two delineated exceptions, is consistent with the' purpose of the Bankruptcy Code. The Second Circuit has observed, “Congress realized that the bankruptcy court’s jurisdictional reach was essential to the efficient administration of bankruptcy proceedings” and that “both the Supreme Court and this court have ... broadly construed the jurisdictional grant in the 1984 Bankruptcy Amendments.” In re S.G. Phillips Constructors, Inc., 45 F.3d 702, 705 (2d Cir.1995); see also In re Best Prods., Co., 68 F.3d 26, 31 (2d Cir.1995). Broadly construing the federal courts’ bankruptcy jurisdiction is essential to their ability to preserve assets and reorganize the estate, particularly where there is a “complex factual scenario, involving multiple claims, policies and insurers.” In re United States Lines, Inc., 197 F.3d 631, 641 (2d Cir.1999) (discussing enforcement of arbitration clause). The efficiency and reorganization goals of the Bankruptcy Code require interpreting Section 1452 in favor of federal jurisdiction and removal except in the limited cases it expressly excepts. The NYCERS Defendants correctly rely on Gonsalves v. Amoco Shipping Co., 733 F.2d 1020 (2d Cir.1984), as supporting their removal of these actions. Gonsalves considered the explicit statutory bar to the removal of Jones Act claims. The Jones Act removal bar, contained in 28 U.S.C. § 1445(a), like Section 22(a), provides plaintiff with a choice-of-forum privilege. See 28 U.S.C. § 1445(a). It prevents the removal to federal court of Jones Act claims filed in state court. Gonsalves, 733 F.2d at 1022. In Gonsalves, the non-removable Jones Act claim was joined with a claim for unseaworthiness, under general maritime law, and also sought maintenance and cure. No explicit bar to removal applies to either of these latter two claims, and diversity jurisdiction existed over the maintenance and cure claim. The defendant removed pursuant to Sections 1441(a) and 1441(c), the former of which allows for the removal of an action over which federal courts have original jurisdiction, and the latter of which provides that “[wjhenever a separate and independent claim" }, { "docid": "2607233", "title": "", "text": "foreign state. As in this case, the issue has not been raised in reported removal eases with similar facts, the parties apparently having presumed that the FSIA is preemptive. See, e.g., Rodriguez, supra; Zemicek v. Petroleos Mexicanos, 614 F.Supp. 407 (S.D.Tex. 1985), affd, 826 F.2d 415 (5th Cir.1987), cert. denied, 484 U.S. 1043, 108 S.Ct. 775, 98 L.Ed.2d 862 (1988). In light of the purposes of the more recent FSIA removal statute, this Court would find that it does indeed prevail. Congress enacted § 1441(d) because “[i]n view of the potential sensitivity of actions against foreign states and the importance of developing a uniform body of law in this area, it is important to give foreign states clear authority to remove to a Federal forum actions brought against them in the State courts.” H.R.Rep. No. 1487, 94th Cong., 2d Sess., reprinted in 1976 U.S.C.C.A.N. 6604, 6631-32. These purposes would not be served by permitting the possibility of removal to depend on the particular type of claim at issue. Therefore, claim-specific prohibitions to removal such as 28 U.S.C. § 1445 do not operate to preclude removal by a foreign state under § 1441(d). Moreover, the Court notes that Talbot has waived the right to invoke § 1445 as grounds for remand by failing to raise it in the present motion. See Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116 (5th Cir.1987) (en bane) (where Jones Act plaintiff fails to object to removal, district court may determine whether he waived right to invoke § 1445(a)). Style The Court notes that Defendant Saipem labeled its Response with an incorrect Civil Action Number. Saipem is ORDERED to use the correct number on all future pleadings in this Court. This Court will not consider future pleadings which are directed to the wrong file. * * * For the reasons stated above, Plaintiffs’ Motion to Remand is DENIED. It is further ORDERED that the parties file no further pleadings on the issues discussed herein in this Court, including motions to reconsider and the like. Instead, the parties are instructed to seek any further relief to" }, { "docid": "7619787", "title": "", "text": "Law of Seamen § 662 (1970). Removal by virtue of the maintenance and cure claim, however, would seriously limit a seaman’s right to elect his forum. To prevent removal, an injured seaman “would be forced to bring maintenance and cure as a separate action or forego maintenance and cure damages above $10,000.” Skaw v. Lady Pacific, Inc., supra, 577 F.Supp. at 4. Third, “voluntary and contemporary payment of maintenance and [cure]” is highly encouraged to ensure that payments will be made to injured seamen when needed most. Crooks v. United States, 459 F.2d 631, 635 (9th Cir.1972). Allowing removal in this context will encourage Jones Act defendants to dispute and withhold payment on maintenance and cure claims to ensure removability of actions of this nature. Finally, we note that here, unlike a typical § 1441(c) case where a removable claim is joined with a claim which lacks federal jurisdiction, “the removable claim is joined with a federal claim that Congress prefers to leave in state court if that is where a plaintiff has filed it.” Gonsalves v. Amoco Shipping Co., supra, 733 F.2d at 1022. We think this preference in favor of Jones Act plaintiffs lends support to our holding, particularly where, as here, the two claims are historically and factually tied together. IV. Conclusion We are not unmindful that some claims joined with a Jones Act claim may be sufficiently “separate” and “independent” to warrant removal. In light of the foregoing, however, the joined claims must necessarily exhibit an independence beyond that demonstrated here for the Jones Act claim to be removable. Because we find Addison’s maintenance and cure claim not sufficiently independent of his Jones Act claim, we reverse the judgment of the district court and remand with directions to vacate the judgment in favor of the appellees and remand the action to the state court. REVERSED AND REMANDED. . In light of our disposition of this action on the issue of its removability, we do not reach the other issues raised on this appeal. . The facts set out in this opinion are excerpted from the findings" }, { "docid": "7619781", "title": "", "text": "1093, 1101 (1980), cert. denied sub nom. Sheet Metal Workers v. Carter, 450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981). Our review indicates that Addison’s amended complaint, at the time of removal, did assert a claim for maintenance and cure. Therefore, his later waiver of this claim is of no consequence in resolving the issue of removability. C. Removability of Maintenance and Cure Claim. A more difficult question for our consideration is whether a Jones Act claim and a maintenance and cure claim are “separate and independent” for purposes of § 1441(c) removal. While this Court has not directly addressed this issue, we find support in the Second Circuit’s decision in Gonsalves v. Amoco Shipping Co., 733 F.2d 1020 (2nd Cir.1984), for the position that a “maintenance and cure claim is not sufficiently distinct from a Jones Act claim arising out of the same set of operative facts to warrant removal.” Id. at 1026. This issue has also been addressed by three district courts, all of which have rejected removal. Stokes v. Victory Carriers, Inc., 577 F.Supp. 9 (E.D.Pa.1983); Skaw v. Lady Pacific, Inc., 577 F.Supp. 2 (D.Alaska 1983); Sawyer v. Federal Barge Lines, Inc., 577 F.Supp. 37 (S.D.Ill.1982) (vacating an earlier ruling, 510 F.Supp. 39, to the contrary). In Pate v. Standard Dredging Corp., 193 F.2d 498 (5th Cir.1952), we held that where there is but a single wrongful invasion of a single primary right, a claim for unseaworthiness joined with a claim under the Jones Act is not a separate and independent claim for the purposes of removal. Id. at 501. In Pate we did not address the removability issue with regard to appellant’s claim for maintenance and cure because the maintenance claim failed to satisfy the requisite jurisdictional amount to be removable. Texaco asserts that, unlike the plaintiff in Pate, Addison is seeking relief for the alleged invasion of two separate rights: contractual rights under maintenance and cure and rights founded in tort under the Jones Act. For support, Texaco cites Professors Gilmore and Black: “By unquestionable authority a maintenance and cure claim is ‘separate" }, { "docid": "22088337", "title": "", "text": "district court further held that assuming that diversity was lacking, the plaintiffs’ claims lie in admiralty and would invest the court with federal question jurisdiction. After removal, a motion to remand “on the basis of any defect other than lack of subject matter jurisdiction ” must be filed within 30 days in order to be timely. 28 U.S.C. § 1447(e)(emphasis added). Although, Ragas filed the motion to remand more than 30 days after the notice of removal was filed, the district court was incorrect in finding that the motion to remand was untimely. Ragas’ remand motion was based upon a purported lack of diversity jurisdiction. Because Ragas’ challenge was to the subject matter jurisdiction of this court, the motion to remand need not have been made within 30 days. This does not end our inquiry, however, because the defendants’ notice of removal listed an alternative, albeit erroneous, ground for removal jurisdiction — federal question via admiralty law. See Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116 (5th Cir.1987) (en bane) (holding that although Jones Act case was improperly removed under 28 U.S.C. § 1445(a), such defect in removal can be waived if motion to remand is not timely filed). Ragas never challenged removal on the basis of admiralty jurisdiction. Once a procedural defect in the removal process has been waived, the only question for the district court is whether it “would have had jurisdiction of the case had it been filed in that court.” Id. at 117. In this case the 'district court correctly determined that it would have had original federal question jurisdiction under admiralty law. In re Digicon Marine, Inc., 966 F.2d 158 (5th Cir.1992). Although not cited by either party, our decision in Williams v. AC Spark Plugs Division of General Motors Corp., 985 F.2d 783 (5th Cir.1993) speaks directly to the issue before the court today and provides the governing rule: If a plaintiff initially could have filed his action in federal court, yet chose to file in state court, even if a statutory provision prohibits the defendant from removing the action and the defendant" }, { "docid": "21745931", "title": "", "text": "Tax Court and (2) civil actions brought by the government. In Judge Cote’s view, under the principle inclusio unius est exdusio alterius — that to express or include one thing implies the exclusion of the other — the enumerated exceptions in Section 1452(a) must be viewed as exclusive. Remand Opinion, 293 B.R. at 328-29. Next, Judge Cote explained that “[interpreting Section 1452 to allow removal for all actions over which there is bankruptcy jurisdiction ... is consistent with the purpose of the Bankruptcy Code”— namely, to preserve assets so that the estate can be reorganized in an efficient manner. Remand Opinion, 293 B.R. at 329 (S.D.N.Y.2003). Finally, Judge Cote relied on our Court’s decision in Gonsalves v. Amoco Shipping Co., 733 F.2d 1020 (2d Cir.1984). In Gonsalves, an expressly nonremovable Jones Act claim was joined with a claim for unseaworthiness and a maintenance and cure claim. No explicit bar to removal applied to either of the maritime claims, and diversity jurisdiction existed over the maintenance and cure claim. The defendant removed the action as a whole to federal court under 28 U.S.C. § 1441(c). Prior to the enactment of the Judicial Improvements Act of 1990, Pub.L. 101-650, 104 Stat. 5089, § 1441(c) provided that “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 ....” 28 U.S.C. § 1441(c) (1982). Although we ultimately held on appeal that the maintenance and cure claim was not sufficiently “separate and independent” of the Jones Act claim to warrant removal of the Jones Act claim under § 1441(c), see Gonsalves, 733 F.2d at 1026, we stated first that if the joined claims were sufficiently independent to be removed under that provision, Section 1445(a), which makes Jones Act claims nonremovable, would not override Section 1441(c). See id. at 1022. In other words, as Judge Cote put it, the Court of Appeals “found that the Jones Act removal bar provided an express exception to removal under Section 1441(a), but" }, { "docid": "2526483", "title": "", "text": "If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.... This statute makes a distinction between procedural defects in removal and lack of subject matter jurisdiction. If a plaintiff finds fault with a procedural element in removal, he has only thirty days in which to make a motion to remand. On the other hand, if he asserts that the federal court lacks subject matter jurisdiction, he may move to remand at any time before final judgment. The crucial issue in this case, then, is whether GM’s removal was a procedural defect that required Williams to move for remand within thirty days. We conclude that the statutory restriction against removal is not a matter of substantive jurisdiction, but rather a procedural defect that Williams waived. This court has never addressed the issue of a defect in removal under section 1445(c). We have, however, examined removals under section 1445(a), which bars removal of, among other actions, a Jones Act (46 U.S.C. § 688) claim filed in state court. In Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116, 117 (5th Cir.1987) (en banc), a worker sued his employer in state court, alleging negligence under the Jones Act. The defendant removed to federal court, and the plaintiff made no motion to remand within thirty days. Id. We held that the section 1445(a) “bar to removal may be waived by a litigant’s failure to object to such removal in district court.” Id. We reasoned that when an action is initially removed improperly and the case is tried on its merits, the subsequent issue becomes “ ‘not whether the case was properly removed, but whether the federal district court would have had jurisdiction of the case had it been filed in that court.’ ” Id. (quoting Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 702, 92 S.Ct. 1344, 1347, 31 L.Ed.2d 612 (1972)). In In re Shell Oil Co., 932 F.2d 1518, 1521 (5th Cir.), cert. denied, — U.S. -, 112 S.Ct. 914, 116 L.Ed.2d 814 (1991), we considered whether removal in" }, { "docid": "773750", "title": "", "text": "with a removable “separate and independent” claim. But Congress has prohibited removal of Jones Act claims in which the plaintiff has chosen to proceed in the state forum. 28 U.S.C. § 1445(a) (1982) (making FELA claims irremovable); 46 U.S.C. § 688 (1976) (making statutes modifying remedies of railway employees applicable to seaman). Transworld argues that Mr. Howard’s claim for maintenance and cure is “independent” of his Jones Act claim, making the entire case removable by virtue of the Howards’ joinder of a removable claim. The Howards’ apparent retort is that sec. 1445(a) overrides section 1441(c), forbidding removal of the entire case even if the provisions of the latter are satisfied. We agree with Trans world that Mr. Howard’s claim for maintenance and cure satisfies the criteria for diversity jurisdiction and so is removable. We also agree that it is separate and distinct from his Jones Act claim. In Pate v. Standard Dredging Corp., 193 F.2d 498 (5th Cir. 1952), the Fifth Circuit, after finding an unseaworthiness claim to be “dependent” upon a Jones Act claim, rejected removal of a seaman’s suit containing a maintenance claim because that claim lacked sufficient amount-in-controversy. As Judge Friendly correctly observed in a plurality opinion for the Second Circuit, sitting en banc, the Pate court “assumed” (or at least appears to have assumed) that a maintenance claim is separate from a Jones Act claim for purposes of section 1441(c). Fitzgerald v. United States Lines Co., 306 F.2d 461, 472 (2d Cir.1962) (Part IV of the opinion of Judge Friendly, in which Judges Lumbard, Moore and Kaufman join), rev’d on other grounds, 374 U.S. 16, 83 S.Ct. 1646, 10 L.Ed.2d 720 (1963). Our only question, therefore, is whether section 1441(c) withstands section 1445(a). Two district courts in the North have explicitly held that an independent claim for maintenance and cure will, when joined with a Jones Act claim, permit removal of the entire action. See Gilliken v. J.A. LaPorte, Inc., No. HM-82-2479 (D.Md.1983) (unpublished opinion); Sawyer v. Federal Barges Lines, Inc., 510 F.Supp. 39 (S.D.Ill.1981). And the Second Circuit, while disagreeing with our finding that Jones" } ]

[ { "docid": "16029365", "title": "", "text": "power to approve or withdraw approval for NDA’s, that its decision on that issue was reviewable on direct appeal by a court of appeals, and since the Court of Appeals for the Second Circuit had ruled against petitioner on that appeal, the jurisdictional question could not be relitigated in a separate suit for a declaratory judgment. We affirm the Court of Appeals. We have stated in Weinberger v. Bentex Pharmaceuticals, Inc., post, p. 645, our reasons for concluding that FDA has jurisdiction in an administrative proceeding to determine whether a drug product is a “new drug” within the meaning of § 201 (p) of the Act, 21 U. S. C. §321(p). A decision that FDA lacks authority to determine in its own proceedings the coverage of the Act it administers, subject of course to judicial review, would seriously impair FDA’s ability to discharge the responsibilities placed on it by Congress. As we said in Weinberger v. Hynson, Westcott & Dunning, Inc., ante, p. 609, and the Bentex case, supra, the definition of “new drug” as used in §201(p)(1) in volves a determination of technical and scientific questions by experts. The agency is therefore appropriately the arm of Government to make the threshold determination of the issue of coverage. Cf. Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 210-211, n 47. It is, of course, true that the Act gives FDA a second line of defense — civil injunction proceedings, criminal penalties, and in rem seizure and condemnation. See §§ 302 (a), 303, 304, 21 U. S. C. §§ 332 (a), 333, 334. Those are sanctions to enforce the prohibition of the Act against the sale in commerce of any article in violation of § 505. But the Act does not create a dual system of control — one administrative, and the other judicial. Cases may arise where there has been no formal administrative determination of the “new drug” issue, it being first tendered to a district court. Even then, however, the district court might well stay its hand, awaiting an appropriate administrative determination of the threshold question. See" } ]

[ { "docid": "4490499", "title": "", "text": "Pharmaceuticals, Inc., 412 U.S. 645, 93 S.Ct. 2488, 37 L.Ed.2d 235; CIBA Corp. v. Weinberger, 412 U.S. 640, 93 S.Ct. 2495, 37 L.Ed.2d 230; USV Pharmaceutical Corporation v. Weinberger, 412 U.S. 655, 93 S.Ct. 2498, 37 L.Ed.2d 244; Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207. Our judgment to delay decision has been vindicated. The Supreme Court opinions, in our view, are dispositive of petitioner’s challenge to the withdrawal order. I. STATUTORY HISTORY AND SCHEME The statutory history and regulatory scheme are discussed and considered in Weinberger v. Hynson, etc., supra (hereinafter referred to as Hynson). Therefore, another full recitation of the applicable statutes and regulations is unnecessary. We will, however, discuss the pertinent provisions of the legislation in our consideration of the issues which petitioner continues to urge upon us. By way of background, petitioner has for approximately 25 years distributed and sold in interstate commerce products for animal feeding purposes containing iodinated casein, also known as Prota-mone. For some years subsequent to 1945, animal applications of iodinated casein were the subject of new animal drug applications, specifically, NADAs Nos. 5-633V and 5-987V. The applications had been approved by the United States Food and Drug Administration. In 1962, Congress amended the Food, Drug and Cosmetic Act to expand jurisdiction of the Commissioner of the Food and Drug Administration to allow review of “new drugs” for substantial evidence of both safety and effectiveness. Pub.L. 87-781, 76 Stat. 780. The provision applied equally to human and animal drugs until the amendments in 1968, Pub.L. 90-399, 82 Stat. 342, separated and recompiled the provisions relating to animal drugs. S.Rep.No.1308, 90th Cong., 2d Sess.; 1968 U.S.Code, Cong, and Adm.News, p. 2607 et seq. These separate provisions are, insofar as applicable here, nearly identical. To effect the provisions of the 1962 amendment, particularly 21 U.S.C. § 355(e), the FDA by notice in 31 Fed. Reg. 9426 on July 9, 1966, announced that the National Academy of Sciences-National Research Council (NAS-NRC) had agreed to assist the FDA in its review of claims of effectiveness for drugs that" }, { "docid": "22863880", "title": "", "text": "its views are unlikely to be disturbed by the court in an enforcement proceeding. See, e. g., Abbott Laboratories v. Gardner, 387 U.S. 136, 151-152, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); CIBA-GEIGY Corp. v. Richardson, 446 F.2d 466, 468 (2d Cir. 1971). Where once we may have demanded proof of specific delegation of legislative authority to an agency purporting to promulgate substantive rules we have learned from experience to accept a general delegation as sufficient in certain areas of expertise. Whatever doubts might have been entertained regarding the FDA’s power under § 701(a) to promulgate binding regulations were dispelled by the Supreme Court’s recent decisions in Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973), and its companion cases, Ciba Corp. v. Weinberger, 412 U.S. 640, 93 S.Ct. 2495, 37 L.Ed.2d 230 (1973); Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 93 S.Ct. 2488, 37 L.Ed.2d 235 (1973); USV Pharmaceutical Corp. v. Weinberger, 412 U.S. 655, 93 S.Ct. 2498, 37 L.Ed.2d 244 (1973). Those decisions interpreted § 701(a) as giving FDA the power to promulgate substantive regulations having the binding force of law rather than mere “interpretive” statements enforceable only on a case-by-ease basis through plenary suits against those refusing to comply. The Court upheld the power of the FDA under § 701(a) to promulgate binding regulations which (1) defined the standards of evidence to be met by drug manufacturers called upon to demonstrate the efficacy of their products in new drug applications, and (2) permitted the dismissal without a hearing (i. e., by summary judgment) of an application failing to meet these standards. The Court further. approved administrative determination by the FDA of whether a product was a “new drug” within the meaning of the Act. In sanctioning the equivalent of an administrative summary judgment procedure Justice Douglas, speaking for the Court, stated: “If FDA were required automatically to hold a hearing for each product whose efficacy was questioned by the NAS-NRC study, even though many hearings would be an exercise in futility, we have no doubt that it could" }, { "docid": "5219976", "title": "", "text": "the manufacturer must bring forward includes “adequate and well-controlled investigations, including clinical investigations, by experts qualified by scientific training and experience to evaluate the effectiveness of the drug involved” from which such experts could reasonably conclude that the drug would be effective as claimed, § 355(d); Weinberger v. Hynson, Westcott & Dunning, supra, 412 U.S. at 617, 93 S.Ct. at 2477, 37 L.Ed.2d at 216. The crux of appellant’s argument on appeal is that the test for general recognition of safety and effectiveness — to determine whether an animal drug is a new animal drug and whether a substance is a food additive — is not to be based on the same kind of scientific evidence that is required for testing safety and efficacy of drugs and additives for new animal drug applications and food additive regulations, §§ 348(b)-(d) and 355(b)-(h) and 21 C.F.R. § 130.12. This is because drugs “used in medicine since long before science reached the point of engaging in ‘adequate and well-controlled investigations’ ” had passed tests of safety and efficacy by trial and error. The Supreme Court has already rejected this view in a dictum in Weinberger v. Hynson, Westcott & Dunning, supra. The Court quoted with approval an argument of the Solicitor General that drugs on the market “will have mustered the requisite scientifically reliable evidence of effectiveness long before they are in a position to drop out of active regulation by ceasing to be a ‘new drug,’ ” 412 U.S. at 631, 93 S.Ct. at 2484, 37 L.Ed.2d at 224. In a companion case decided the same day the Court restated this and said that “the reach of scientific inquiry under both § 505(d) [21 U.S.C. § 355(d), supra] and § 201(p) [21 U.S.C. § 321(p)] is precisely the same,” Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 652, 93 S.Ct. 2488, 2493, 37 L.Ed.2d 235, 241 (1973). The pertinent provisions here in question of § 321(w), which defines new animal drugs, are identical to § 321(p), which defines new drugs except new animal drugs. Just prior to this observation the Court carved" }, { "docid": "15748570", "title": "", "text": "May 10, 1979. As explained in Pepsico, Inc. v. FTC, supra, and Sterling Drug, Inc. v. Weinberger, supra, the Leedora exception applies, save in the rare situation exemplified by McCulloch, only “if an agency refuses to dismiss a proceeding that is plainly beyond its jurisdiction as a matter of law or is being conducted in a manner that cannot result in a valid order.” Pepsi-Co, Inc. v. FTC, supra, 472 F.2d at 187. The drastic limitations stated in these criteria are designed to keep the exceptions from swallowing the Myers rule and avoid a reviewing court’s having to devote undue time to a debatable issue which may never arise in practice because of the agency’s decision on the merits or may be illuminated, if it does, by the agency’s discussion. Here it is not at all clear that appellants’ legal position on the applicability of §§ 403(j) and 701(e) is sound. Appellants do not, indeed cannot, challenge that the FDA has power under § 701(a) to issue substantive rules to implement § 403(a), see Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973); Ciba Corp. v. Weinberger, 412 U.S. 640, 93 S.Ct. 2495, 37 L.Ed.2d 230 (1973); Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 93 S.Ct. 2488, 37 L.Ed.2d 235 (1973); U. S. V. Pharmaceutical Corp. v. Weinberger, 412 U.S. 655, 93 S.Ct. 2498, 37 L.Ed.2d 244 (1973). Applying these decisions we have recognized that notice and comment procedures were sufficient in promulgating a regulation which, among other things, required appropriate disclosure and warnings on high dosage preparations of vitamins A and D. National Nutritional Foods Ass’n v. Weinberger, 512 F.2d 688 (2 Cir.) cert. denied, 423 U.S. 827, 96 S.Ct. 44, 46 L.Ed.2d 445 (1975). If one looks only to the language of the two subsections, it is not apparent that the grant of power under § 403(j) to require “statements concerning its [a food for special dietary use] vitamin, mineral, and other properties which fully inform the purchaser as to its nutritional value” when “necessary for the protection of" }, { "docid": "3295524", "title": "", "text": "bioavailability help in determining bioequivalence. . Hoffmann-LaRoche v. Weinberger, 425 F.Supp. 890 (D. D.C. 1975). . See 40 Fed.Reg. 43531-33 (Sept. 22, 1975). . Section 334 provides in pertinent part that (1) Any article of . drug that is adulterated or misbranded when introduced into or while held for sale (whether or not the first sale) after shipment in interstate commerce . . . shall be liable to be proceeded against while in interstate commerce, or at any time thereafter, on libel of information and condemned in any district court of the United States . . . within the juris- diction of which the article is found . . . . 21 U.S.C. §§ 334(a)(1) (1976) (emphasis supplied). . The court stated the following general propositions of law without explaining their relevance to the instance case: (1) A drug may be a “new drug” within the meaning of the Drug Act no matter how long a period of time it has been available, United States v. Allan Drug Co., 357 F.2d 713 (10th Cir.), cert. denied, 385 U.S. 899, 87 S.Ct. 203, 17 L.Ed.2d 131 (1966); (2) The Government need not prove that seized articles are in fact unsafe or ineffective, only that they are not recognized generally as such by qualified experts, Amp, Inc. v. Gardner, 389 F.Supp. 825, 831 (2d Cir.), cert. denied, 393 U.S. 825, 89 S.Ct. 86, 21 L.Ed.2d 95 (1968); United States v. An Article of Drug . . . “Mykocert,” 345 F.Supp. 571, 574 (N.D. Ill. 1972); (3) Substantial evidence of general recognition of effectiveness is required before an NDA will issue and in the absence of such evidence, the drug would be a “new drug” under the Drug Act, Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 629, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973); (4) The FDA has power to determine if an NDA is required prior to marketing, id. at 642, 93 S.Ct. 2469; and (5) Where a claimant has had an opportunity to litigate the “new drug” issue before the FDA, it may not relitigate that issue in" }, { "docid": "5219977", "title": "", "text": "by trial and error. The Supreme Court has already rejected this view in a dictum in Weinberger v. Hynson, Westcott & Dunning, supra. The Court quoted with approval an argument of the Solicitor General that drugs on the market “will have mustered the requisite scientifically reliable evidence of effectiveness long before they are in a position to drop out of active regulation by ceasing to be a ‘new drug,’ ” 412 U.S. at 631, 93 S.Ct. at 2484, 37 L.Ed.2d at 224. In a companion case decided the same day the Court restated this and said that “the reach of scientific inquiry under both § 505(d) [21 U.S.C. § 355(d), supra] and § 201(p) [21 U.S.C. § 321(p)] is precisely the same,” Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 652, 93 S.Ct. 2488, 2493, 37 L.Ed.2d 235, 241 (1973). The pertinent provisions here in question of § 321(w), which defines new animal drugs, are identical to § 321(p), which defines new drugs except new animal drugs. Just prior to this observation the Court carved out a limited but indefinite exception. It said, “It may, of course, be true that in some cases general recognition that a drug is efficacious might be made without the kind of scientific support necessary to. obtain approval of an NDA [new drug application],” id. The three drugs and the food additive challenged in this case are potentially within that exception since they all have as their active ingredient gentian violet, a drug long used and well recognized as a safe and effective fungicide and bactericide in man. The District Court so found, 372 F.Supp. at 918. But new combinations of well-known drugs constitute new drugs for purposes of the Act exactly because the effects of drugs in combinations are often not the sum of their parts. If reliance on a single well-known active ingredient like gentian violet lowers the test for general recognition of efficacy and safety (as appellant argues it should and as the Court hinted it might in Bentex Pharmaceuticals), it does not lower it to the level necessary on the facts" }, { "docid": "18448413", "title": "", "text": "230 (1973); Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 93 S.Ct. 2488, 37 L.Ed.2d 235 (1973); USV Pharmaceutical Corp. v. Weinberger, 412 U.S. 655, 93 S.Ct. 2498, 37 L.Ed.2d 244 (1973). These cases sustained the FDA’s application of all drug efficacy study implementation notices to me-too drug products and upheld the agency’s primary jurisdiction to determine the status of drugs under the Act. Preliminarily, the FDA suggests that Count One of plaintiff’s complaint is moot because the FDA approved the new drug application of Zenith Labs on March 7, 1975, during the pendency of this litigation. Count One challenges the FDA’s policy as violative of 21 U.S.C. § 355 (1970). This general policy continues in operation with respect to whole generic classes of drugs. Voluntary cessation of the alleged wrongful conduct in one instance, while it continues in all other areas, has not conveniently mooted this portion of plaintiff’s complaint. United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 202-204, 89 5.Ct. 361, 21 L.Ed.2d 344 (1968); Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 511, 31 S.Ct. 279, 55 L.Ed. 310 (1911); Cf. Preiser v. Newkirk, 422 U.S. 395, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975); National Broadcasting Co., Inc. v. FCC, 170 U.S.App. D.C. 173, 516 F.2d 1101 (1975). Reaching the merits of plaintiff’s statutory argument, the Court holds that the FDA’s policy of permitting new drugs to be marketed without an approved new drug application contravenes the clear statutory requirement of preclearance mandated by 21 U.S.C. § 355 (1970). The FDA’s choice of policy is not within the intendment of the 1962 New Drug Amendments and the legislative scheme they embody. American Public Health Assoc, v. Veneman, 349 F.Supp. 1311 (D.D.C.1972). Further, the action of the FDA in permitting such marketing of large classes of me-too drugs violates its own regulations. See, 21 C.F.R. §§ 314.1(a)(f), 314.012 (1974); Nader v. Nuclear Regulatory Commission, 168 U.S.App.D.C. 255, 513 F.2d 1045, 1051 (1975); Borough of Lansdale v. FPC, 161 U.S.App.D.C. 185, 494 F.2d 1104, 1113 & n.42 (1974). The implication that the FDA seeks to find" }, { "docid": "417767", "title": "", "text": "jurisdiction to review the FDA action. Biotics and Seroyal filed timely notices of appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291. II The Supreme Court has ruled that while the federal courts and the FDA share concurrent jurisdiction to determine whether a drug sought to be marketed constitutes a “new drug” subject to the provisions of the Food, Drug, and Cosmetic Act, the FDA has primary jurisdiction. See Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 627, 93 S.Ct. 2469, 2481-2482, 37 L.Ed.2d 207 (1973) (Hynson). The basis for the grant of primary jurisdiction is the FDA’s expertise in resolving technical and scientific questions. Ciba Corp. v. Weinberger, 412 U.S. 640, 643-44, 93 S.Ct. 2495, 2497-2498, 37 L.Ed.2d 230 (1973) (Ciba); Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 653-54, 93 S.Ct. 2488, 2494, 37 L.Ed.2d 235 (1973) (Bentex). When the FDA has primary jurisdiction to determine the status of a product, one seeking to contest the agency’s determination must exhaust all administrative remedies before seeking judicial review. See Hynson, 412 U.S. at 627, 93 S.Ct. at 2481-2482; Carnohan v. United States, 616 F.2d 1120 (9th Cir.1980). It is thus appropriate for a district court to stay its hand pending a final agency determination of the question. Ciba, 412 U.S. at 644, 93 S.Ct. at 2498; Bentex, 412 U.S. at 654, 93 S.Ct. at 2494; see 5 U.S.C. § 704 (Administrative Procedure Act). Biotics and Seroyal attempt to distinguish its case, where the relevant question is whether their products should be labeled as drugs, as biological products, or as foods, from cases like Hynson, where the relevant question was whether an admitted drug constituted a new drug within the meaning of the Food, Drug, and Cosmetic Act. This factual difference does not amount to a legal distinction. Classification of a product as a drug, biological product, or food involves the same “complex chemical and pharmacological considerations,” Bentex, 412 U.S. at 654, 93 S.Ct. at 2494, and “determination of technical and scientific questions,” Ciba, 412 U.S. at 644, 93 S.Ct. at 2498, that led the Supreme Court" }, { "docid": "1245554", "title": "", "text": "in effect. . Although aspirin is a widely used drug, its use is not entirely hazard free. Aspirin use may potentiate peptic ulcer, cause stomach distress or heartburn, cause an increase in occult bleeding and, in some persons, massive gastrointestinal bleeding. Its use should be avoid ed by persons with severe anemia, blood coagulating defects, or taking anti-coagulant or anti-diabetic drugs, hypersensitive individuals, especially certain asthmatics, and pregnant women. The Report of the Advisory Review Panel on Over-The-Counter Internal Analgesic, Antipyretic and Antirheumatic Products (April 5, 1977), reprinted in 42 Fed.Reg. at 35347 — 489 (July 8, 1977), discusses the health hazards associated with aspirin use in detail at pages 35383-411. . Our account is adopted in large part from Judge Sirica’s detailed discussion in Cutler v. Kennedy, 475 F.Supp. 838, 840-45 (D.D.C. 1979). See also Weinberger v. Hynson, Westcott and Dunning, Inc., 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973); CIBA Corp. v. Weinberger, 412 U.S. 640, 93 S.Ct. 2495, 37 L.Ed.2d 230 (1973); Weinberger v. Bentex Pharmaceutical, Inc., 412 U.S. 645, 93 S.Ct. 2488, 37 L.Ed.2d 235 (1973); and USV Pharmaceutical Corp. v. Weinberger, 412 U.S. 655, 93 S.Ct. 2498, 37 L.Ed.2d 244 (1973). . As noted infra at 537 the IAP, despite its conclusion that aspirin in doses of 1000 mg is safe and effective, did not recommend the marketing of any products containing such a dose. Accordingly, AHP’s assertion is disingenuous. . Defendant American Home Products Corporation’s Memorandum in Opposition to McNeil-ab, Inc.’s Motion for Leave to Serve an Amended Complaint and for Partial Summary Judgment at 36. . Id at 41. . For similar reasons, we reject AHP’s argument that injunctive relief is inappropriate because McNeil’s television commercials, it is claimed, suffer from defects similar to those that infect AHP’s. AHP has made a number of arguments not directly addressed here, which we have considered but do not find worthy of discussion in an already overlong opinion." }, { "docid": "5531767", "title": "", "text": "Stat. 1125 (1914), as amended, 15 U.S.C. § 18 (1970). . Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 Harv.L.Rev. 921, 962 (1965). See also Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 649-654, 98 S.Ct. 2488, 37 L.Ed.2d 235 (1973). . United States v. Storer Broadcasting Co., 351 U.S. 192, 202, 76 S.Ct. 763, 100 L.Ed. 1081 (1956). . See also Permian Basin Area Rate Cases, 390 U.S. 747, 774-777, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968) (upholding authority of FPC to adopt area maximum rate system against challenge that the Natural Gas Act, 15 U.S.C. § 717 et seq. (1970), permitted computation of natural gas producers’ rates only on an individual basis); Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, -, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973) (upholding authority of Food & Drug Administration to issue declaratory orders classifying similar products as “new drugs” under § 5(e) of the Administrative Procedure Act, 5 U.S.C. § 554(e) (1970), against challenge that individualized proceedings involving each manufacturer were required) ; cf. Weinberger v. Bentex Pharmaceuticals, Inc., supra note 10, 412 U.S. at 649-652, 93 S.Ct. 2488 (endorsing FDA expert-drawn “monographs” to determine whether products are “new drugs” within the meaning of 21 U.S.C. § 321 (p) (1) (1970). . The Federal Trade Commission Act exempts from its coverage banks, common carriers subject to other federal regulation, air carriers and foreign air car riers subject to the Federal Aviation Act of 1958, and persons subject to the Packers and Stockyards Act of 1921. See 15 U.S.C. § 45(a)(6). . See, e. g., S.Rep. No. 597, 63d Cong., 2d Sess., 9-10 (1914); H.R.Rep. No. 1142, 63d Cong., 2d Sess., 18-19 (1914). . See S. 2941, 62d Cong., 2d Sess. (1911). This bill, introduced by Senator New-lands of Nevada, then a ranking member of the Senate Commerce Committee, provided for a 5-man independent commission whose presidentially appointed members would have fixed tenure, with powers to compel corporations whose annual gross receipts exceeded $5 million to furnish annual reports showing their “organization, financial condition, and" }, { "docid": "4360422", "title": "", "text": "This statement, of course, confirms the implication in the June 21, 1972, notice that the FDA’s principal concern was about misuse, and that its principal goal was to curb such misuse. . Id. . Id. . Id. at 15,750. “Thus far, the USDA in its sampling program has not found a single residue resulting from implants alone ...” Id. . Id. at 15,750. . 38 Fed.Reg. 10,485 (April 27, 1973). . Id. at 10,487. . Id. at 10,488. . Id. Then following the April 27, 1973, Order, the FDA revoked the regulations applicable to use of DES implants. 38 Fed. Reg. 10,926 (May 3, 1973). The Commissioner took this action pursuant to 21 U.S.C. § 360b (i), which provides for revocation of regulations governing use of an approved animal drug when approval is withdrawn. The regulations affected were 21 C.F.R. §§ 135b.3, 135b.6, 135g.26, 135g.53 (1973). . Other grounds on which both petitioners challenged the order include: (1) use by the FDA of data obtained by an unapproved testing method as the basis of its withdrawal of approval; and (2) the failure of the FDA to issue a prewithdrawal NEPA statement. In addition, petitioner Vineland urges that the order is invalid because of the FDA’s discrimination between premix and implant manufacturers, i. e., the allowance of post-withdrawal premix sales versus the prohibition of post-withdrawal implant sales. . 21 U.S.C. § 360b(e)(1). . This provision is in the final paragraph of § 360b (e)(1). . 38 Fed.Reg. 10,488 (April 27, 1973). . 21 C.F.R. § 130.14(b). This “summary judgment” procedure was upheld in USV Pharmaceutical Corp. v. H. E. W., 151 U.S.App.D.C. 284, 466 F.2d 455 (1972). More recently, the Supreme Court has also approved it, I-Iynson, Westcott and Dunning, Inc. v. Weinberger, 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973). The Court stated, We cannot impute to Congress the design of requiring, nor does due process demand a hearing when it appears conclusively from the appellant’s “pleadings” that it cannot succeed. . Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955); See also" }, { "docid": "5229391", "title": "", "text": "court in a subsequent judicial action. See id. § 10.85(j). Nevertheless, the statement of policy represents the FDA’s formal position on the use of gentian violet and obligates the agency to act in a manner consistent with that policy until it is amended or revoked. See id. §§ 10.85(e)-(g), 10.-90(b)(2)-(3), (5). The agency and judicial resources expended in connection with the gentian violet controversy could have been greatly reduced had the FDA made an industry-wide determination of the GRAS status of gentian violet through a formal, legislative rulemaking proceeding, complete with notice, comment, and, if needed, judicial review. The FDA has the authority to determine whether a particular product requires an approved food additive regulation in order to be marketed in interstate commerce. See 21 U.S.C. § 348(d); 21 C.F.R. §§ 570.-35(a) -(b), 570.38(a), (b)(1) (1979). See generally Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 651-54, 93 S.Ct. 2488, 2493-94, 37 L.Ed.2d 235, 240-42 (1973); Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 624, 93 S.Ct. 2469, 2480, 37 L.Ed.2d 207, 220 (1973). Indeed, the FDA, as the administrative agency created by Congress to administer the Act, cannot intelligently and rationally perform its regulatory duties unless it determines what products are “food additives” under 21 U.S.C. § 321(s) and what products, because of their GRAS status, are exempt from regulation. Although agency determinations often proceed on a case-by-case basis, there is no constitutional reason requiring such individual adjudications. See Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. at 624-25, 93 S.Ct. at 2480, 37 L.Ed.2d at 220. In the context of the marketing of misbranded or adulterated foods or drugs, “a single administrative proceeding in which each manufacturer may be heard is constitutionally permissible.” Id. at 625, 93 S.Ct. at 2481, 37 L.Ed.2d at 247. Such a single, industry-wide proceeding would have provided the comprehensive treatment necessary for quick and effective relief. Instead, by acting against individual products and manufacturers, the FDA succeeded only in “creatpng] delay where in the interest of public health there should [have been] prompt action.” See id. By providing a definitive" }, { "docid": "1180699", "title": "", "text": "of postponing its consideration of these products until initiation of the over-the-counter drug review program. Id. at 1317. FDA had examined prescription drugs before OTC drugs because of the former’s greater potential for harm to consumers. 37 Fed.Reg. 85 (1972). . See Cutler v. Kennedy, supra note 17, 475 F.Supp. at 844. . 37 Fed.Reg. 85 (1972). . See 37 Fed.Reg. 9464-9475 (1972) (codified at 21 C.F.R. § 130.301 (1973)). . See Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 650, 93 S.Ct. 2488, 2492, 37 L.Ed.2d 235, 240 (1973) (estimating between 100,000 and 500,000 OTC drugs); Cutler v. Kennedy, supra note 17, 475 F.Supp. at 844-845. . 37 Fed.Reg. 86 (1972). FDA originally estimated that all OTC drugs were comprised of approximately 200 active ingredients, used alone or in varying combinations. Id . 21 C.F.R. §§ 330.10(a)(1)-(5) (1986); see Cutler v. Hayes, 549 F.Supp. 1341, 1345 (D.D.C. 1982). . 21 C.F.R. § 330.10(a)(6) (1986); see Cutler v. Hayes, supra note 24, 549 F.Supp. at 1345. . 21 C.F.R. §§ 330.10(a)(7)-(8) (1986); see Cutler v. Hayes, supra note 24, 549 F.Supp. at 1345. . 21 C.F.R. § 330.10(a)(9) (1986); see Cutler v. Hayes, supra note 24, 549 F.Supp. at 1345. . 21 C.F.R. § 330.10(a)(5)(i) (1986). . Id § 330.10(a)(5)(ii). . Id. § 330.10(a)(5)(iii). . 21 C.F.R. § 330.10(a)(13) (1981). . Cutler v. Kennedy, supra note 17, 475 F.Supp. at 855. . Cutler v. Hayes, supra note 24, 549 F.Supp. at 1345. . 21 C.F.R. § 330.10(a)(7)(iii) (1986). The legality of this new provision is challenged by appellants in this case. See notes 176-177 infra and accompanying text. . Cutler v. Hayes, supra note 24, 549 F.Supp. at 1345. . See Brief for Appellees at 8. . See id. at 29. . Id. at 26. In May of 1982, seven of a projected 77 monographs had been promulgated in final form. See Milestone Status of OTC Drug Review Documents (May, 1982), reproduced at Joint Appendix (J.App.) 354. In February of 1987, 16 of a projected 99 monographs had been promulgated in final form. See Milestone Status of OTC Drug Review" }, { "docid": "417766", "title": "", "text": "section 502 of the Food, Drug, and Cosmetic Act, 21 U.S.C. § 352. The letter to Seroyal declared that its “‘Raw’-Thyroid Tablets” were drugs and prescription drugs within the meaning of the Food, Drug, and Cosmetic Act and that the product was mis-branded in violation of various subsections of sections 403, 502, and 503 of the Act, 21 U.S.C. §§ 343, 352 & 353. In response to these letters, Biotics and Seroyal independently filed actions in the district court seeking declaratory judgments that the FDA’s actions were illegal and unauthorized and requesting injunctions against the threatened enforcement actions. Biotics and Seroyal both argued that their products are “foods” or “foods for special dietary use” and not drugs or biological products. The FDA moved to dismiss the actions. Biotics and Seroyal opposed the motions and requested oral argument. Biotic’s request was granted and a hearing date set. However, before any argument occurred, the district court granted the FDA’s motions to dismiss, ruling that because regulatory letters do not constitute “formal administrative determinations,” the court had no jurisdiction to review the FDA action. Biotics and Seroyal filed timely notices of appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291. II The Supreme Court has ruled that while the federal courts and the FDA share concurrent jurisdiction to determine whether a drug sought to be marketed constitutes a “new drug” subject to the provisions of the Food, Drug, and Cosmetic Act, the FDA has primary jurisdiction. See Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 627, 93 S.Ct. 2469, 2481-2482, 37 L.Ed.2d 207 (1973) (Hynson). The basis for the grant of primary jurisdiction is the FDA’s expertise in resolving technical and scientific questions. Ciba Corp. v. Weinberger, 412 U.S. 640, 643-44, 93 S.Ct. 2495, 2497-2498, 37 L.Ed.2d 230 (1973) (Ciba); Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 653-54, 93 S.Ct. 2488, 2494, 37 L.Ed.2d 235 (1973) (Bentex). When the FDA has primary jurisdiction to determine the status of a product, one seeking to contest the agency’s determination must exhaust all administrative remedies before seeking judicial review. See Hynson, 412" }, { "docid": "4490498", "title": "", "text": "MATTHES, Senior Circuit Judge. Agri-Tech, Inc. has petitioned this court to review an order of the Secretary of Health, Education, and Welfare issued through the Commissioner of Food and Drugs on February 24, 1972, withdrawing approval of New Animal Drug Applications (NADA) Nos. 5-987V and 5-633V, respectively, concerning drugs containing “iodinated casein,” or “Protamone,” as the active ingredient. On January 10, 1973, we heard arguments, and the cause was taken under submission. Two days prior thereto, January 8, 1973, the Supreme Court had granted certiorari in Bentex Pharmaceuticals, Inc. v. Richardson, 463 F.2d 363 (4th Cir. 1972); CIBA Corp. v. Richardson, 463 F.2d 225 (3rd Cir. 1972); USV Pharmaceutical Corp. v. Richardson, 461 F.2d 223 (4th Cir. 1972); Hynson, Westcott & Dunning, Inc. v. Richardson, 461 F.2d 215 (4th Cir. 1972). Directly involved in those cases were the issues posed here. We therefore concluded to withhold our decision until opinions were forthcoming in the above cases. On June 18, 1973, opinions were filed by the Supreme Court and are reported sub nomine Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 93 S.Ct. 2488, 37 L.Ed.2d 235; CIBA Corp. v. Weinberger, 412 U.S. 640, 93 S.Ct. 2495, 37 L.Ed.2d 230; USV Pharmaceutical Corporation v. Weinberger, 412 U.S. 655, 93 S.Ct. 2498, 37 L.Ed.2d 244; Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207. Our judgment to delay decision has been vindicated. The Supreme Court opinions, in our view, are dispositive of petitioner’s challenge to the withdrawal order. I. STATUTORY HISTORY AND SCHEME The statutory history and regulatory scheme are discussed and considered in Weinberger v. Hynson, etc., supra (hereinafter referred to as Hynson). Therefore, another full recitation of the applicable statutes and regulations is unnecessary. We will, however, discuss the pertinent provisions of the legislation in our consideration of the issues which petitioner continues to urge upon us. By way of background, petitioner has for approximately 25 years distributed and sold in interstate commerce products for animal feeding purposes containing iodinated casein, also known as Prota-mone. For some years subsequent to 1945, animal applications" }, { "docid": "5229390", "title": "", "text": "21 C.F.R. §§ 10.85(c), (d)(3) (1978). There, the FDA stated that “[tjhere is no food additive regulation providing for the safe use of gentian violet in animal feed, nor is there prior sanction for its use. Experts have informed the Food and Drug Administration that gentian violet is not generally recognized as safe for use in animal feed.” The FDA concluded that “[gjentian violet used in animal feed without any therapeutic claim constitutes an unsafe food additive; it may not be used legally in animal feed in the absence of a food additive regulation providing for its safe use.” Because the FDA issued the Compliance Policy Guide as a general statement of agency policy, it was not required to comply with the formal rulemaking requirements of the Administrative Procedure Act. See 5 U.S.C. § 553(b)(A). See also 21 C.F.R. § 10.90(b). Accordingly, the April 17, 1974, Guide is not legally conclusive of the GRAS status of gentian violet when that issue is raised either before the FDA in a subsequent agency proceeding or before a court in a subsequent judicial action. See id. § 10.85(j). Nevertheless, the statement of policy represents the FDA’s formal position on the use of gentian violet and obligates the agency to act in a manner consistent with that policy until it is amended or revoked. See id. §§ 10.85(e)-(g), 10.-90(b)(2)-(3), (5). The agency and judicial resources expended in connection with the gentian violet controversy could have been greatly reduced had the FDA made an industry-wide determination of the GRAS status of gentian violet through a formal, legislative rulemaking proceeding, complete with notice, comment, and, if needed, judicial review. The FDA has the authority to determine whether a particular product requires an approved food additive regulation in order to be marketed in interstate commerce. See 21 U.S.C. § 348(d); 21 C.F.R. §§ 570.-35(a) -(b), 570.38(a), (b)(1) (1979). See generally Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 651-54, 93 S.Ct. 2488, 2493-94, 37 L.Ed.2d 235, 240-42 (1973); Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 624, 93 S.Ct. 2469, 2480, 37 L.Ed.2d 207, 220" }, { "docid": "1180698", "title": "", "text": "Westcott & Dunning, Inc., 412 U.S. 609, 632, 93 S.Ct. 2469, 2484, 37 L.Ed.2d 207, 224-225 (1973). The FDC Act did not define the degree of proof necessary to qualify for the GRAS/E exemption. . United States v. Rutherford, supra note 6, 442 U.S. at 549-550 n. 7, 99 S.Ct. at 2474 n. 7, 61 L.Ed.2d at 75 n. 7. . American Pub. Health Ass’n v. Veneman, 349 F.Supp. 1311, 1313-1314 (D.D.C.1972). . See Cutler v. Kennedy, 475 F.Supp. 838, 844 (D.D.C.1979). . In American Pub. Health Ass’n v. Veneman, supra note 16, the District Court for the District of Columbia held that FDA regulations which permitted the continued marketing of drugs conclusively found to be ineffective, while affording manufacturers an opportunity to provide additional data to FDA on the question of efficacy, violated the clear language of the FDC Act requiring removal of such drugs from the market after the grace period. 349 F.Supp. at 1315-1316, 1317. The court also directed FDA to complete its evaluation of certain over-the-counter drugs marketed under NDAs instead of postponing its consideration of these products until initiation of the over-the-counter drug review program. Id. at 1317. FDA had examined prescription drugs before OTC drugs because of the former’s greater potential for harm to consumers. 37 Fed.Reg. 85 (1972). . See Cutler v. Kennedy, supra note 17, 475 F.Supp. at 844. . 37 Fed.Reg. 85 (1972). . See 37 Fed.Reg. 9464-9475 (1972) (codified at 21 C.F.R. § 130.301 (1973)). . See Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 650, 93 S.Ct. 2488, 2492, 37 L.Ed.2d 235, 240 (1973) (estimating between 100,000 and 500,000 OTC drugs); Cutler v. Kennedy, supra note 17, 475 F.Supp. at 844-845. . 37 Fed.Reg. 86 (1972). FDA originally estimated that all OTC drugs were comprised of approximately 200 active ingredients, used alone or in varying combinations. Id . 21 C.F.R. §§ 330.10(a)(1)-(5) (1986); see Cutler v. Hayes, 549 F.Supp. 1341, 1345 (D.D.C. 1982). . 21 C.F.R. § 330.10(a)(6) (1986); see Cutler v. Hayes, supra note 24, 549 F.Supp. at 1345. . 21 C.F.R. §§ 330.10(a)(7)-(8) (1986); see Cutler v." }, { "docid": "18448412", "title": "", "text": "notice does not explicitly state that a me-too drug could be marketed prior to approval of an abbreviated or full new drug application. It was implicit, the FDA argues, that such marketing would be permitted. To hold otherwise would be to give an unfair competitive advantage to manufacturers of identical, related or similar drug products marketed prior to a drug efficacy notice by allowing them to remain on the market pending approval of an abbreviated new drug application. Competitors’ products would be kept off the market until approval was granted. Of particular importance to this case, by Federal Register notice on July 11, 1972, the FDA declared all compounds containing chlordiazepoxide subject to new drug application requirements. Abbreviated new drug applications were required to be submitted. 37 Fed. Reg. 13562 (1972). On June 18, 1973, the Supreme Court decided four cases interpreting the 1962 amendments. See, Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973); Ciba Corp. v. Weinberger, 412 U.S. 640, 93 S.Ct. 2495, 37 L.Ed.2d 230 (1973); Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 93 S.Ct. 2488, 37 L.Ed.2d 235 (1973); USV Pharmaceutical Corp. v. Weinberger, 412 U.S. 655, 93 S.Ct. 2498, 37 L.Ed.2d 244 (1973). These cases sustained the FDA’s application of all drug efficacy study implementation notices to me-too drug products and upheld the agency’s primary jurisdiction to determine the status of drugs under the Act. Preliminarily, the FDA suggests that Count One of plaintiff’s complaint is moot because the FDA approved the new drug application of Zenith Labs on March 7, 1975, during the pendency of this litigation. Count One challenges the FDA’s policy as violative of 21 U.S.C. § 355 (1970). This general policy continues in operation with respect to whole generic classes of drugs. Voluntary cessation of the alleged wrongful conduct in one instance, while it continues in all other areas, has not conveniently mooted this portion of plaintiff’s complaint. United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 202-204, 89 5.Ct. 361, 21 L.Ed.2d 344 (1968); Southern Pacific Terminal Co. v. ICC," }, { "docid": "12698208", "title": "", "text": "duplicate of a previously approved drug, Gentaject is not a “new drug” necessitating the same exhaustive testing as its pioneer. The Act designates all animal drugs “new” unless they have been “generally recognized, among experts qualified by scientific training and experience to evaluate the safety and effectiveness of animal drugs, as safe and effective” and have “been used to a material extent or for a material time.” 21 U.S.C. § 321(w). In order to be “generally recognized” as safe and effective, an animal drug must have a general reputation in the scientific community for those properties. “[E]ither the unawareness of the drug product by experts generally or a genuine dispute among qualified experts regarding a drug product’s safety and effectiveness preclude its qualifying for exclusion as ‘generally recognized’.” Premo Pharmaceutical Laboratories, Inc. v. United States, 629 F.2d 795, 803 (2d Cir.1980). This exclusion for “generally recognized” drugs is a narrow one. Id. at 802. To establish general recognition, the applicant must produce “evidence consisting of adequate and well-controlled investigations, including field investigation, by experts qualified by scientific training and experience to evaluate the effectiveness of the drug....” 21 U.S.C. § 360b(d)(3). In addition to this clinical experimentation, the investigation should be “backed by substantial support in scientific literature.” Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 652, 93 S.Ct. 2488, 2493, 37 L.Ed.2d 235 (1973). The ultimate hurdle of general recognition must be overcome by “substantial evidence.” Weinberger v. Hynson, Wescott & Dunning, Inc., 412 U.S. 609, 629, 93 S.Ct. 2469, 2483, 37 L.Ed.2d 207 (1973). The plaintiffs petition in this case depended heavily on Schering’s Garasol data, yet it did not refer to any established body of published literature on Garasol. Moreover, the Commissioner found deficiencies in those materials submitted in support of Garasol’s general recognition status. Although these shortcomings played a part in the FDA’s denial, it is clear that once the agency properly determined that Schering’s proprietary data could not be expropriated to support the plaintiff’s petition, the foundation for the citizen’s petition collapsed. After a careful and searching review of the findings of the FDA in" }, { "docid": "15748571", "title": "", "text": "v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 93 S.Ct. 2469, 37 L.Ed.2d 207 (1973); Ciba Corp. v. Weinberger, 412 U.S. 640, 93 S.Ct. 2495, 37 L.Ed.2d 230 (1973); Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 93 S.Ct. 2488, 37 L.Ed.2d 235 (1973); U. S. V. Pharmaceutical Corp. v. Weinberger, 412 U.S. 655, 93 S.Ct. 2498, 37 L.Ed.2d 244 (1973). Applying these decisions we have recognized that notice and comment procedures were sufficient in promulgating a regulation which, among other things, required appropriate disclosure and warnings on high dosage preparations of vitamins A and D. National Nutritional Foods Ass’n v. Weinberger, 512 F.2d 688 (2 Cir.) cert. denied, 423 U.S. 827, 96 S.Ct. 44, 46 L.Ed.2d 445 (1975). If one looks only to the language of the two subsections, it is not apparent that the grant of power under § 403(j) to require “statements concerning its [a food for special dietary use] vitamin, mineral, and other properties which fully inform the purchaser as to its nutritional value” when “necessary for the protection of the public health” curtails the power to issue regulations requiring warnings that could be compelled for other foods and drugs under the joint force of §§ 403(a) and 201(n). See National Nutritional Foods Ass’n v. Weinberger, supra, 512 F.2d at 697; National Nutritional Foods Ass’n v. Food and Drug Administration, supra, 504 F.2d at 799-800. We refrain from saying more in order to avoid prejudicing appellants in a later action where the issue will be whether the FDA’s choice of procedure was wrong rather than, as here, whether it was so plainly wrong that we should abort final action, at a time when the limits of the final action are not yet fully known. While appellants have much to say about Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), see also Gardner v. Toilet Goods Ass’n, 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967), these decisions are inapposite. There the agency had completed its rulemaking activity; the question was whether parties adversely affected could immediately attack the" } ]

[ { "docid": "1301706", "title": "", "text": "district court found that appellants had standing to sue, but that Governor Romer’s expenditures were “de minimis” so that the appellants failed to state a claim. DISCUSSION On appeal, Romer contends that appellants lack standing to pursue this action. Because we agree with this contention, we address only the standing argument and do not address the merits of appellants’ contentions on appeal. In this case, appellants are two associations, the Colorado Taxpayers Union and the Colorado Libertarian Party, and a number of individuals. Before a party may invoke the jurisdiction of the federal courts, Article III requires that the party demonstrate that (1) “ ‘he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant’ (2) “the injury ‘fairly can be traced to the challenged action’ and (3) the injury “ ‘is likely to be redressed by a favorable decision.’ ” Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 60 L.Ed.2d 66 (1979) and Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976)). If a party satisfies these minimum constitutional requirements, then a court may still deny standing for prudential reasons if the injury alleged constitutes a “generalized grievance” that more appropriately should be addressed by the representative branches. See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). The district court concluded that plaintiffs “alleged sufficient injury for standing.” Colorado Taxpayers Union, Inc. v. Romer, 750 F.Supp. 1041, 1043 (D.Colo.1990). In support of this conclusion, the district court stated that “[t]he harm consists of the additional burden imposed on the plaintiffs by the defendants’ allegedly unconstitutional acts. Like the plaintiffs in Common Cause v. Bolger, [512 F.Supp. 26, 30 (D.D.C.1980)], the plaintiffs here have alleged that their campaign for Amendment 6 would not have been so difficult (and, in" } ]

[ { "docid": "11449169", "title": "", "text": "its taxing and spending authority when those acts implicate the Establishment Clause of the Constitution.” Shaffer v. Clinton, 54 F.Supp.2d 1014, 1017 (D.Colo.1999) (citing United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974); Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)). Furthermore, Mueller could not sue as a voter in congressional elections because his claim amounted to a “non-particularized constitutional violation.” Id. at 1017. With respect to Congressman Schaffer, the district court noted that his salary was directly affected by the COLAs, but it did not expressly hold he had standing to sue. Id. at 1018. In addition, the district court held that all of the defendants were improper parties because Congressman Schaffer’s injury was not caused, and could not be resolved, by them. Id. at 1019-20. The court also determined that it lacked personal jurisdiction over the legislative branch defendants and that Colorado was not the proper venue. See id. at 1020-22. On the merits, the court held that the COLAs did not violate the Twenty-Seventh Amendment because they went into effect after an intervening election of Representatives and that the COLAs were not independent laws under the Amendment because they are not discretionary acts of Congress. See id. at 1023-24. According to the court, the COLAs “accomplish[ ] the goal of the Founding Fathers manifested in the Twenty-seventh Amendment” because they “eliminate[ ] the possibility that Congress will grant itself a new pay raise during its current session.” Id. at 1024. On appeal, appellants challenge only the district court’s determination on the merits. We cannot proceed to the merits, however, without first deciding whether Congressman Schaffer had standing to sue. II The judicial power of federal courts extends only to actual cases and controversies. See U.S. Const, art. Ill, § 2; Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). [T]he “case or controversy” requirement defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded. The several doctrines that have grown up to" }, { "docid": "20198205", "title": "", "text": "federal courts to entertain suits is circumscribed by Article III of the United States Constitution, which limits judicial authority to “Cases” and “Controversies.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Accordingly, “the doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial process,” and thus meet the requirements of Article III. Whitmore v. Arkansas, 495 U.S. 149, 154-55, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). The standing doctrine has both constitutional and prudential components. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). In order to satisfy the constitutional component of standing, a party must meet three requirements: (1) [the party] has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130); accord Long Term Care Partners, LLC v. United States, 516 F.3d 225, 231 (4th Cir.2008). With regard to the prudential component of standing, courts generally recognize three self-imposed constraints. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 474-75, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); Allen, 468 U.S. at 751, 104 S.Ct. 3315. First, “when the asserted harm is a ‘generalized grievance’ shared in substantially equal measure by all or a large class of citizens, that harm alone normally does not war rant exercise of jurisdiction.” Warth, 422 U.S. at 499, 95 S.Ct. 2197; see, e.g., United States v. Richardson, 418 U.S. 166, 94 S.Ct. 2940, 41 L.Ed.2d 678 (1974). Second, “the plaintiff generally must assert his own legal rights and" }, { "docid": "2925610", "title": "", "text": "Huntington an unwilling participant in this estate’s administration. Moreover, Trustee’s pursuit of the same transfer that gives rise to El Camino’s unjust enrichment claim does raise the spectre of Huntington having to pay twice. It only seems fair, then, that Huntington should be able to ask this court whether the Section 362 stay applies. “In essence, the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). The concept reflects both the Constitution’s requirement that an Article III court must actually have a “case or controversy” before it and the limits that the federal judiciary has imposed upon itself over the years. Allen v. Wright, 468 U.S. 737, 750-51, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Therefore, a party seeking relief from a federal court must allege “personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Id. at 751, 104 S.Ct. 3315 (citing Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982)). However, a party’s standing is ultimately to be decided through the court’s own assessment of the claim being made. Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable? Is the line of causation between the illegal conduct and injury too attenuated? Is the prospect of obtaining relief from the injury as a result of a favorable ruling too speculative? Allen v. Wright, 468 U.S. at 752, 104 S.Ct. at 3325. With this guidance, the court is satisfied that Huntington does have standing to appear before it and argue the merits of whether the automatic stay affects El Camino’s district court litigation. As another court said in a similar case: [T]o establish that it has standing ... it is enough for RICH [a third party] to establish that it is in the “zone of interest” of § 362" }, { "docid": "173542", "title": "", "text": "750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). Standing—“perhaps the most important of these doctrines,” id. — involves the question of “whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Id. at 750-51, 104 S.Ct. 3315 (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). At an “irreducible minimum,” Article III standing requires those invoking the jurisdiction of a federal court to demonstrate an (1) injury-in-fact; (2) which is caused by, or is fairly traceable to the defendant’s alleged unlawful conduct; and (3) which is likely to be redressed by a favorable decision of the court. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982); see also Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 1161, 137 L.Ed.2d 281 (1997); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A would-be federal litigant must “clearly and specifically set forth facts sufficient to satisfy these Art. Ill standing requirements.” Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). By imposing these requirements, Article III limits the power of the federal judiciary to “those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.” Valley Forge, 454 U.S. at 472, 102 S.Ct. 752 (quoting Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)); see also Allen, 468 U.S. at 750, 104 S.Ct. 3315 (case-or-controversy doctrines are “founded in concern about the proper — and properly limited — role of the courts in a democratic society”) (quoting Warth, 422 U.S. at 498, 95 S.Ct. 2197). Article III standing is “not merély a troublesome hurdle to be overcome if possible so as to reach the ‘merits’ of a lawsuit which a party desires to have adjudicated.” Valley Forge, 454 U.S. at 476, 102 S.Ct. 752." }, { "docid": "22983687", "title": "", "text": "for purposes of the grandfather provision at § 922(v)(2) was arbitrary and capricious (Count V). The district court found that plaintiffs’ complaint did not present a justiciable “case or controversy” as required by Article III of the Constitution. II. Justiciability Requirements We review issues of justiciability pursuant to Article III de novo. Kelley v. Selin, 42 F.3d 1501, 1507 (6th Cir.), cert. denied, 515 U.S. 1159, 115 S.Ct. 2611, 132 L.Ed.2d 855 (1995). Article III of the Constitution confines the federal courts to adjudicating actual “cases” and “controversies.” U.S. Const, art. Ill, § 2. The threshold question in every federal case is whether the court has the judicial power to entertain the suit. Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975). Federal judicial power is limited to those disputes “which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.” Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 1951, 20 L.Ed.2d 947 (1968). As the Supreme Court explained in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471-76, 102 S.Ct. 752, 757-61, 70 L.Ed.2d 700 (1982), the “case or controversy” requirement defines, with respect to the Judicial Branch, the idea of separation of powers on which the Federal Government is founded. In an attempt to give meaning to Article Ill’s “ease or controversy” requirement, the courts have developed a series of principles termed “justiciability doctrines.” The Article III doctrine that requires a litigant to have “standing” to invoke the jurisdiction of a federal court is perhaps the most important. Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Article III standing requires a litigant to have suffered an injury-in-fact, fairly traceable to the defendant’s allegedly unlawful conduct, and likely to be redressed by the requested relief. Id. at 751, 104 S.Ct. at 3324-25; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136-37, 119 L.Ed.2d 351" }, { "docid": "536865", "title": "", "text": "the merits of plaintiffs’ procedural due process claim, the Court must determine whether that claim is properly before it. Article III, § 2 of the United States Constitution confines the federal courts to adjudicating actual “cases” and “controversies.” In interpreting that restriction, federal courts have developed the doctrines of standing, ripeness, mootness, political question and the like. See Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Of the doctrines developed under the “case” or “controversy” requirement, perhaps the most important is standing, the question of whether the litigant is entitled to have the court determine the merits of his or her dispute. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Defendants assert that plaintiffs lack standing to assert a substantive due process challenge to § 96-109. The application of the standing requirement is not susceptible to precise definition; rather, it depends upon the court’s individualized determination as to the propriety of adjudicating the particular claim in the case before it: Typically, ... the standing inquiry requires careful judicial examination of a complaint’s allegations to ascertain whether the particular plaintiff is enti- tied to an adjudication of the particular claims asserted. Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable? Is the line of causation between the illegal conduct and injury too attenuated? Is the prospect of obtaining relief from the injury as a result of a favorable ruling too speculative? Id. at 752, 104 S.Ct. at 3325 (emphasis added). As the above highlighted sentence implies, plaintiffs’ injury must normally be caused by the unconstitutional application of the statute to him or her, or the plaintiff will not have standing to attack the statute’s constitutionality. As the Supreme Court stated in U.S. v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960): one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its" }, { "docid": "22315290", "title": "", "text": "are analytically distinct. At least in this context, the filing of a joint notice of appeal from a final order resolving a group of individual claims does not relieve each plaintiff of his obligation to file a timely notice of appeal with respect to his own particular claim; the fact that the notice may be timely for some other plaintiff is immaterial. See United States v. One Remington 12 Gauge Shotgun, 709 F.2d 1468, 1469 (11th Cir.1988) (dismissing appeal where party failed to file timely notice because “[t]he filing of a timely notice of appeal is essential to give this court jurisdiction”); Reynolds v. Hunt Oil Co., 643 F.2d 1042, 1042 (5th Cir. Unit B 1981) (dismissing appeal and observing that “[cjompliance with [the 30-day] requirement is a prerequisite for appellate jurisdiction”). Inadvertent or not, the Wooden Plaintiffs did not move for reconsideration, and therefore were not entitled to an automatic extension of the otherwise applicable 30-day deadline for filing a notice of appeal regarding thé dismissal of their claims. The appeals of Wooden, Jarvis, and Bratcher must be dismissed for lack of jurisdiction, and accordingly we do not consider their arguments on the merits. IV. The appeals of the Tracy Plaintiffs arise out of the district court’s rulings dismissing their claims for lack of standing. Article III of the United States Constitution restricts the power of federal courts to adjudicating actual “cases” and “controversies.” U.S. Const, art. Ill, § 2, cl. 1. “This case-or-controversy doctrine fundamentally limits the power of federal courts in our system of government, and helps to identify those disputes which are appropriately resolved through judicial process.” Cox, 183 F.3d at 1262 (internal quotation marks omitted) (citing Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984), and Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1722, 109 L.Ed.2d 135 (1990)). Perhaps the most important of the Article III doctrines grounded in the case- or-controversy requirement is that of standing. See Allen, 468 U.S. at 750, 104 S.Ct. at 3324. “In essence the question of standing is whether the" }, { "docid": "173543", "title": "", "text": "and specifically set forth facts sufficient to satisfy these Art. Ill standing requirements.” Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). By imposing these requirements, Article III limits the power of the federal judiciary to “those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.” Valley Forge, 454 U.S. at 472, 102 S.Ct. 752 (quoting Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)); see also Allen, 468 U.S. at 750, 104 S.Ct. 3315 (case-or-controversy doctrines are “founded in concern about the proper — and properly limited — role of the courts in a democratic society”) (quoting Warth, 422 U.S. at 498, 95 S.Ct. 2197). Article III standing is “not merély a troublesome hurdle to be overcome if possible so as to reach the ‘merits’ of a lawsuit which a party desires to have adjudicated.” Valley Forge, 454 U.S. at 476, 102 S.Ct. 752. To the contrary, it is an “essential and unchanging part of the case-or-controversy requirement of Article III.” Defenders of Wildlife, 504 U.S. at 560, 112 S.Ct. 2130. A federal court deciding matters outside the scope of Article III, then, exercises power that is “not judicial ... in the sense in which judicial power is granted by the Constitution to the courts of the United States.” Valley Forge, 454 U.S. at 471, 102 S.Ct. 752 (quoting United States v. Ferreira, 54 U.S. (13 How.) 40, 48, 14 L.Ed. 40 (1852)). To permit a federal court to rule on the claims of a plaintiff lacking Article III standing would “create the potential for abuse of the judicial process, distort the role of the Judiciary in its relationship to the Executive and the Legislature and open the Judiciary to an arguable charge of providing ‘government by injunction.’ ” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 222, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974). Thus, “[t]he powers of the federal judiciary will be adequate for" }, { "docid": "21974102", "title": "", "text": "Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (rejecting the doctrine of “hypothetical jurisdiction,” once embraced by some courts of appeals as a way to avoid difficult jurisdictional questions when the merits could be more easily resolved). We therefore begin by determining whether the Plaintiffs have standing to bring their First Amendment claim. A. The role of federal courts in our democratic society is “properly limited.” Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); see also Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 476, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Rather than being constituted as free-wheeling enforcers of the Constitution and laws, the federal courts were limited to what James Madison called “cases of a Judiciary Nature,” 2 The Records of the Federal Convention of 1787, at 430 (Max Farrand ed., 1911), and Article III of the Constitution calls “cases” and “controversies.” U.S. Const, art. Ill, § 2. Concern for this limited judicial role is reflected in the principle that, for a federal court to exercise jurisdiction under Article III, plaintiffs must allege (and ultimately prove) that they have suffered an “injury in fact,” that the injury is fairly traceable to the challenged action of the Defendants, and that it is redressable by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Particularly important, for present purposes, is the requirement of an “injury in fact,” which the Supreme Court has defined as “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Id. at 560, 112 S.Ct. 2130 (internal quotation marks, citations, and footnote omitted). “Allegations of possible future injury” do not satisfy the injury in fact requirement, Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990), though a plaintiff need not “expose himself to actual arrest or prose cution to be entitled to challenge a statute that" }, { "docid": "11513990", "title": "", "text": "a private citizen. We conclude that Hickman can show no legal injury, and therefore lacks standing to bring this action. Article III of the Constitution restricts the federal courts to adjudicating actual “cases” or “controversies.” This limitation “defines with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded.” Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Among the cluster of doctrines that ensure our adherence to the case-or-controversy requirement, the “doctrine that requires a litigant to have ‘standing’ to invoke the power of a federal court is perhaps the most important.” Id. Article III standing is a jurisdictional prerequisite. See id. at 754, 104 S.Ct. at 3326. Thus, we are bound to address the standing issue at the threshold of the case. The party invoking federal jurisdiction has the burden to establish his standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). To do so, a litigant must satisfy three elements which constitute the “irreducible constitutional minimum” of Article III standing. Id. First, the plaintiff must have suffered injury to a legally protected interest. Id. This injury must be both “concrete and particularized,” id. (citing Warih v. Seldin, 422 U.S. 490, 508, 95 S.Ct. 2197, 2210, 45 L.Ed.2d 343 (1975); Sierra Club v. Morton, 405 U.S. 727, 740-41, 92 S.Ct. 1361, 1368-69, 31 L.Ed.2d 636 (1972)), and “actual or imminent” rather than “conjectural or hypothetical.’’ Id. (citing Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1723, 109 L.Ed.2d 135 (1990) (quoting Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983)) (internal quotations omitted)). Second, “there must be a causal connection between the injury and the conduct complained of.” Id. (citing Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1925-26, 48 L.Ed.2d 450 (1976)). Third, the injury must be redressable by a favorable judicial decision. Id. (citing Simon, 426 U.S. at 38, 96 S.Ct. at 1924). This case turns" }, { "docid": "22315291", "title": "", "text": "and Bratcher must be dismissed for lack of jurisdiction, and accordingly we do not consider their arguments on the merits. IV. The appeals of the Tracy Plaintiffs arise out of the district court’s rulings dismissing their claims for lack of standing. Article III of the United States Constitution restricts the power of federal courts to adjudicating actual “cases” and “controversies.” U.S. Const, art. Ill, § 2, cl. 1. “This case-or-controversy doctrine fundamentally limits the power of federal courts in our system of government, and helps to identify those disputes which are appropriately resolved through judicial process.” Cox, 183 F.3d at 1262 (internal quotation marks omitted) (citing Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984), and Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1722, 109 L.Ed.2d 135 (1990)). Perhaps the most important of the Article III doctrines grounded in the case- or-controversy requirement is that of standing. See Allen, 468 U.S. at 750, 104 S.Ct. at 3324. “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). A plaintiff seeking to invoke a federal court’s jurisdiction must demonstrate three things to establish standing under Article III. First, he must show that he has suffered an “injury-in-fact.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992); Cox, 183 F.3d at 1262. Specifically, the asserted injury must arise out of the invasion of a legally protected interest that is sufficiently concrete and particularized rather than abstract and indefinite. See Lujan, 504 U.S. at 560, 112 S.Ct. at 2136; see also FEC v. Akins, 524 U.S. 11, 22-24, 118 S.Ct. 1777, 1785-86, 141 L.Ed.2d 10 (1998). Second, the plaintiff must show a causal connection between the asserted injury-in-fact and the challenged action of the defendant. Lujan, 504 U.S. at 560, 112 S.Ct. at 2136; Allen, 468 U.S. at 751, 104 S.Ct. at 3324. That causal" }, { "docid": "3416728", "title": "", "text": "of standing and failure to state a claim. The District Court granted the motion to dismiss on the ground that the Coalition and the individual plaintiffs lacked standing to bring the suit. See Coalition for Mercury-Free Drugs v. Sebelius, 725 F.Supp.2d 1, 5 (D.D.C.2010). II The doctrine of standing derives from Article III of the Constitution, which limits the jurisdiction of the federal courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2; Arizona Christian School Tuition Org. v. Winn, — U.S.—, 131 S.Ct. 1436, 1441-42, 179 L.Ed.2d 523 (2011). Standing helps differentiate “those disputes which are appropriately resolved through the judicial process” from policy disputes that are appropriately addressed by the elected branches. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)); see also Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (standing rests on “a single basic idea”: the separation of powers). Permitting “courts to oversee legislative or executive action” without regard to the plaintiffs personal stake in the litigation would “significantly alter the allocation of power away from a democratic form of government.” Summers v. Earth Island Inst., 555 U.S. 488, 493,129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (citation and ellipsis omitted); see also Winn, 131 S.Ct. at 1442. Standing protects democratic government by requiring citizens to express their generalized dissatisfaction with government policy through the Constitution’s represen tative institutions, not the courts. See Public Citizen v. NHTSA, 489 F.3d 1279, 1289 (D.C.Cir.2007) (standing “helps ensure that the Judicial Branch does not perform functions assigned to the Legislative or Executive Branch”). The requirement of Article III standing thus helps preserve the Constitution’s separation of powers and demarcates “the proper—and properly limited—role of the courts in a democratic society.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). If the plaintiff does not have standing, a dispute does not present a justiciable case or controversy. The “judicial Power” conferred by Article III “exists only" }, { "docid": "16033630", "title": "", "text": "a well-pleaded complaint establishes that plaintiffs right to relief necessarily depends on the resolution of a substantial question of federal law). Alternatively, the plaintiffs rely on 28 U.S.C. § 1361, mandamus against a federal official. Standing The district court held that the plaintiffs lacked Article III standing to sue the Secretary of Health and Human Services. The concept of standing derives from the Understanding, fundamental to our law, that “[flederal courts are not courts of general jurisdiction; they have only the power that is not authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.” Bender v. Williamsport Area School District, 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986). See also Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Because the jurisdiction of federal courts is defined and limited, in the words of Article III, to actual “Cases” and “Controversies,” Whitmore v. Arkansas, 495 U.S. 149, 154-55, 110 S.Ct. 1717, 1722, 109 L.Ed.2d 135 (1990); Flast v. Coehn, 392 U.S. 83, 94, 88 S.Ct. 1942, 1949, 20 L.Ed.2d 947 (1968), the Supreme Court has long recognized the federal judicial power exists only to redress an injury to the complaining party. Warth, 422 U.S. at 499, 95 S.Ct. at 2205. Thus, the principle that “[t]he province of the court is, solely, to decide on the rights of individuals” is no less vital today then when announced by Chief Justice Marshall in Marburg v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803). Rooted in the concern for “the proper-and properly limited-role of the courts in a democratic society,” Warth, 422 U.S. at 498, 95 S.Ct. at 2205, the standing doctrine serves to identify those disputes that are appropriately resolved through the judicial process. Whitmore, 495 U.S. at 154-55, 110 S.Ct. at 1722-23. The “gist of the question of stand- ing” is whether the party seeking relief has “alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the" }, { "docid": "12626342", "title": "", "text": "took: disobey the orders and challenge their validity in the subsequent disciplinary proceedings. New, 129 F.3d at 647. At oral argument plaintiffs’ counsel informed this Court that all six of the plaintiffs have been ordered to submit to the vaccine. Tr. at 38. Three of the plaintiffs obeyed the order and now seek judicial review. Id. This Court finds that it is one of the proper forums for this claim. 3. Standing A core element of Article Ill’s case or controversy requirement is that a plaintiff must establish that he or she has standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The “question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Allen v. Wright, 468 U.S. 737, 750-51, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). A plaintiff must meet three requirements in order to establish Article III standing. See, e.g., Friends of Earth, Inc. v. Laidlaw Environmental Serv. (TOC), Inc., 528 U.S. 167, 180-91, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). First, she must demonstrate “injury in fact” — a harm that is “concrete,” “actual or imminent, not conjectural or hypothetical.” Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990); see also City of Los Angeles v. Lyons, 461 U.S. 95, 101, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). Second, she must establish causation — a “fairly.. .trace(able) connection between the alleged injury in fact and the alleged conduct of the defendant.” Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976). Third, she must demonstrate redressability — a “substantial likelihood” that the requested relief will remedy the alleged injury in fact. Id. at 45, 96 S.Ct. 1917. A plaintiff seeking injunctive relief demonstrates the first two standing requirements only by showing that the defendant is likely to injure the plaintiff. Cone Corp. v. Florida Dep’t of Transportation, 921 F.2d 1190, 1205 (11th Cir.1991). “Mere allegations will not support standing at the" }, { "docid": "20098057", "title": "", "text": "Cir.1995). We proceed to that consideration. A. The Constitutional Requirement of Standing. The Constitution confines the judicial power of the federal courts to deciding cases or controversies. U.S. Const, art. Ill, § 2, cl. 1. The doctrine of standing is derived directly from this constitutional provision. See Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324-25, 82 L.Ed.2d 556 (1984). It focuses upon the party seeking to invoke federal jurisdiction, rather than upon the jus-ticiability of the issue at stake in the litigation. See Flast v. Cohen, 392 U.S. 83, 99-100, 88 S.Ct. 1942, 1952-53, 20 L.Ed.2d 947 (1968). We have held that the Article III “ ‘case or controversy’ requirement coincides with the scope of the powers the Bankruptcy Code gives a trustee.” Shearson Lehman Hutton, Inc. v. Wagoner, 944 F.2d 114, 118 (2d Cir.1991). To have standing, “[a] plaintiff must [1] allege personal injury [2] fairly traceable to the defendant’s allegedly unlawful conduct and [3] likely to be redressed by the requested relief.” Id. at 751, 104 S.Ct. at 3324; see also Fulani v. League of Women Voters Educ. Fund, 882 F.2d 621, 624 (2d Cir.1989) (quoting Allen, 468 U.S. at 751, 104 S.Ct. at 3324). “A plaintiff must always have suffered ‘a distinct and palpable injury to him-self_” Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 100, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979) (quoting Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975)). The injury must be “concrete in nature and particularized to [the plaintiff],” In re United States Catholic Conference (“USCC”) (Abortion Rights Mobilization, Inc. v. Baker), 885 F.2d 1020, 1023-24 (2d Cir.1989), cert. denied, 495 U.S. 918, 110 S.Ct. 1946, 109 L.Ed.2d 309 (1990), and not “[a]bstract,” “conjectural,” or “hypothetical,” City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983). As the multitude of standing cases indicates, however, “[t]hese terms cannot be defined so as to make application of the constitutional standing requirement a mechanical exercise.” Allen, 468 U.S. at 751, 104 S.Ct. at 3324. Accordingly," }, { "docid": "2871488", "title": "", "text": "certain minimal procedures when an applicant for entry into the United States presents documentary evidence which, if accepted as authentic, would conclusively establish the applicant’s United States citizenship. The INS appealed to this court, claiming that oral procedures implemented following the issuance of the injunction obviated the need for such relief; we remanded for the district court to consider the necessity and scope of the injunction in light of the new procedures. After a hearing on the matter, the district court issued a final decision, ordering that the injunction initially entered remain in effect but authorizing the application of the new INS procedures in lieu of the injunction. The INS then lodged this appeal. Justiciability Article III of the Constitution imposes limits on the cases federal courts may hear. These include the requirement, broadly described as the justiciability doctrine, that there exist a “case or controversy.” See U.S. Const, art. Ill, § 2, cl. 1; Flast v. Cohen, 392 U.S. 83, 94-101, 88 S.Ct. 1942, 1949-53, 20 L.Ed.2d 947 (1968). The fundamental inquiry in determining whether a case or controversy exists is whether the “conflicting contentions of the parties ... present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.” Railway Mail Ass’n v. Corsi, 326 U.S. 88, 93, 65 S.Ct. 1483, 1487, 89 L.Ed. 2072 (1945). Of the several doctrines that courts have developed to elaborate the case or controversy requirement, the requirement that a litigant have “standing” to invoke the power of a federal court “is perhaps the most important of these doctrines.” Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). The core component of the standing requirement, derived directly from the Constitution, is that the plaintiff allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief. Id. at 751, 104 S.Ct. at 3324 (citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982))." }, { "docid": "20198204", "title": "", "text": "due process claims, the defendants filed a motion to dismiss the suit. Although neither party raised the issue of standing, the district court, on that ground, granted the defendants’ motion to dismiss the claims arising under federal law. The district court then declined to exercise supplemental jurisdiction over the remaining state law claims. The plaintiffs appeal the district court’s determination as to the federal law claims. II. A. We review a district court’s dismissal for lack of standing de novo. White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459 (4th Cir.2005); Piney Run Pres. Ass’n v. County Comm’rs of Carroll County, 268 F.3d 255, 262 (4th Cir.2001). Whether the issue of standing is first raised by the parties or by a court is irrelevant to our review, as standing implicates our jurisdiction to hear a case. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Dan River, Inc. v. Unitex Ltd., 624 F.2d 1216, 1223 (4th Cir.1980). B. The power of federal courts to entertain suits is circumscribed by Article III of the United States Constitution, which limits judicial authority to “Cases” and “Controversies.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). Accordingly, “the doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial process,” and thus meet the requirements of Article III. Whitmore v. Arkansas, 495 U.S. 149, 154-55, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990). The standing doctrine has both constitutional and prudential components. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). In order to satisfy the constitutional component of standing, a party must meet three requirements: (1) [the party] has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed" }, { "docid": "536864", "title": "", "text": "contend that revocation of their alteration permit for failure to comply with § 96-109 of the New York City Zoning Resolution violated their rights to substantive due process. Section 96-109 provides that an alteration permit cannot be issued to the owner of residential property in the Clinton District unless the City’s Department of Housing Preservation and Development issues a “certificate of no harassment” to the DOB. Plaintiffs urge this Court to adopt the reasoning of Judge Broderick in Baco Development Fifty-Fourth Street, Inc. v. City of New York, (S.D.N.Y., 86 Civ. 2440 (VLB)). Judge Broderick found that § 96-109 represented an “undue interference with the use of plaintiff’s land” because it acted to forever bar property owners from obtaining alteration permits if tenant harassment had ever occurred during the history of that property, regardless of how long ago such harassment had occurred. Finding that the statute was not rationally related to the state’s interest in preventing harassment of tenants, Judge Broderick declared the law unconstitutional on its face. STANDING Before proceeding to a consideration of the merits of plaintiffs’ procedural due process claim, the Court must determine whether that claim is properly before it. Article III, § 2 of the United States Constitution confines the federal courts to adjudicating actual “cases” and “controversies.” In interpreting that restriction, federal courts have developed the doctrines of standing, ripeness, mootness, political question and the like. See Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Of the doctrines developed under the “case” or “controversy” requirement, perhaps the most important is standing, the question of whether the litigant is entitled to have the court determine the merits of his or her dispute. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Defendants assert that plaintiffs lack standing to assert a substantive due process challenge to § 96-109. The application of the standing requirement is not susceptible to precise definition; rather, it depends upon the court’s individualized determination as to the propriety of adjudicating the particular claim in the case before it: Typically," }, { "docid": "16033629", "title": "", "text": "the court presumes that general factual allegations embrace those specific facts necessary to support the claim). The plaintiffs asserted multiple grounds for jurisdiction in the district court, two of which concern us here. First, the plaintiffs rely on 28 U.S.C. § 1331, the general federal question statute, and we conclude that their claim against the Secretary is one that arises under the Medicaid Act. For purposes of statutory “arising under” jurisdiction, [a]n action arises under the laws of the United States if and only if the complaint seeks a remedy expressly granted by a federal law or if it requires the construction of a federal statute or a distinctive policy of a federal statute requires the application of federal legal principles for its disposition. Lindy v. Lynn, 501 F.2d 1367, 1369 (3d Cir.1974). See also Franchise Tax Board of the State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 2856, 77 L.Ed.2d 420 (1983) (a district court’s federal question jurisdiction extends to those cases in which a well-pleaded complaint establishes that plaintiffs right to relief necessarily depends on the resolution of a substantial question of federal law). Alternatively, the plaintiffs rely on 28 U.S.C. § 1361, mandamus against a federal official. Standing The district court held that the plaintiffs lacked Article III standing to sue the Secretary of Health and Human Services. The concept of standing derives from the Understanding, fundamental to our law, that “[flederal courts are not courts of general jurisdiction; they have only the power that is not authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.” Bender v. Williamsport Area School District, 475 U.S. 534, 541, 106 S.Ct. 1326, 1331, 89 L.Ed.2d 501 (1986). See also Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). Because the jurisdiction of federal courts is defined and limited, in the words of Article III, to actual “Cases” and “Controversies,” Whitmore v. Arkansas, 495 U.S. 149, 154-55, 110 S.Ct. 1717, 1722, 109 L.Ed.2d 135 (1990); Flast v. Coehn, 392" }, { "docid": "22448735", "title": "", "text": "490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975) (“[Standing] is the threshold question in every federal case, determining the power of the court to entertain the suit.”). Standing requirements are most strictly enforced in cases involving constitutional questions. Bender, 475 U.S. at 541-42, 106 S.Ct. at 1331-32. The standing doctrine is derived from Article III of the Constitution which requires the existence of a “case or controversy” before a claim may be resolved by judicial process. Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). To show a case or controversy, a plaintiff must first “clearly demonstrate that he has suffered an ‘injury in fact[ ]’ ” which means “an injury to himself that is ‘distinct and palpable,’ ... as opposed to merely ‘[a]bstract,’ ... and the alleged harm must be actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1723, 109 L.Ed.2d 135 (1990) (citations omitted). Second, the claimant must allege facts which show “that the injury ‘fairly can be traced to the challenged action’ and, third, ‘is likely to be redressed by a favorable decision.’ ” Id. (quoting Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976) and Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); see also Rumford Pharmacy v. City of East Providence, 970 F.2d 996, 1001 (1st Cir.1992); AVX Corp., 962 F.2d at 113. Our standing inquiry depends on whether the plaintiffs have established the existence of a case or controversy as to each of their claims, but does not involve the merits of particular claims. Warth, 422 U.S. at 500, 95 S.Ct. at 2206. The district court found that at least Howes and Parker had standing to bring the constitutional challenges in this case. Karen Parker alleges that she has and will continue to employ lawyers for transactions related to her business and that she has and" } ]

[ { "docid": "6142909", "title": "", "text": "large sum of money, driving in a car which was the subject of an investigation by the Drug Enforcement Administration. And, lest the jury miss the point, the prosecutor directed no fewer than four questions at Duke that were designed to show that he frequented the area of 14th and T Streets, N.W., a known center for narcotics activity. We cannot avoid the conclusion that, in a case the essence of which is common law assault, the prosecutor sought to persuade the jury that the defendant and one of his principal witnesses were members of the drug underworld involved in all sorts of skulduggery. The evidence produced by the prosecutor’s line of cross-examination is not rendered more acceptable by the fact that it is less focused and more subtly adduced than traditional “other crimes” evidence. Quite the contrary. Where the “other crime” alleged is not specified, it is more difficult for the defendant to refute the charge or to demonstrate its insignificance. Where the evidence is presented by innuendo, it is less likely that the jury will guard against manipulation. Therefore, the likelihood that a jury will draw on improper inference is even greater in a case like the one before us than it is in the' traditional “other crimes” case. The government does not seek to justify the prosecutor’s line of cross-examination under one of the exceptions contained in Federal Rule of Evidence 404(b). It does not contend that the evidence produced established “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Moreover, the government did not seek a ruling from the trial court that the evidence was “necessary,” and it did not obtain a preliminary finding that there was “clear and convincing evidence” to connect Shelton to the activities imputed to him by innuendo. These requirements, developed to test the admissibility of evidence relating to specific “other crimes,” must be attended with even greater care in cases (like the one at hand) involving, at best, speculation regarding other crimes. However, these requirements were ignored by the government. Perhaps motivated by a realization that important" } ]

[ { "docid": "23627099", "title": "", "text": "not from evidence but from the prosecutor’s argument and his suggestions does not undermine the need for such protections but rather enhances it, since “coming from the mouth of the representative of the United States,” the statements “carry much weight against the accused when they should properly carry none.” United States v. Meeker, 558 F.2d 387, 390 (7th Cir. 1977), quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314. See United States v. Freeman, 169 U.S.App.D.C. 73, 514 F.2d 1314 (1975). In light of this need for caution, the prosecutor’s “inference” that defendant was a heroin trafficker who had made prior deals and “who could go out the next day and make [$10,000] up on one transaction” was impermissible because it did not have a sufficient basis in the evidence presented. The Government did not even attempt to prove that Vargas had ever participated in any other drug transaction. To the contrary, the only testimony on the subject was Vargas’ unrebutted statement that he had no prior criminal record. Nor did the Government even attempt to prove that Vargas had received any money as a result of any heroin deals, even the one proved here. In fact, in arguing the sufficiency of the evidence, the prosecutors implied that Vargas’ payment for the delivery was a small packet of heroin. Rather than establishing that Vargas was an experienced dealer or distributor, the Government’s case, based on the introduction of Vargas’ statement to Garcia, suggested nothing more to the jury than that Vargas’ only role was the comparatively minor one of delivering the heroin from one person to another. The Government’s case offered no theory to rebut Vargas’ statement that his bail money was put up in part by family and friends, and it did not dispute Vargas' plausible claim, given his salary, that he was able to contribute $3,000 himself. On this record the notion that Vargas could go out the next day and make $10,000 in one transaction is inconceivable and therefore the prosecutor’s suggestion of that possibility to the jury clearly was improper." }, { "docid": "21623451", "title": "", "text": "— U.S. —, 103 S.Ct. 3542, 77 L.Ed.2d 1391 (1983). These comments, when viewed in conjunction with the numerous references during the trial to the Mitchell drug ring, do not cross the line “demarcating permissible oratorical flourish from impermissible comment calculated to incite the jury against the accused.” Id. at 1342. And in the context of this case, wherein virtually all the witnesses were admittedly involved in the Mitchell drug ring, and the alleged conspiratorial objective was to prevent testimony at Mitchell’s trial, the prosecutorial remarks were not sufficiently prejudicial as to affect McGill’s substantial rights. McGill also argues that the prosecutor’s remark, in response to a defense argument that the only evidence of McGill’s guilt was accomplice testimony, constituted prosecutorial misconduct. The prosecutor’s remark was that he had not offered evidence of McGill’s drug dealing because “the judge [had] already told [the jury] that type of thing is not allowed into evidence.” The prosecutor has a special obligation to avoid “improper suggestions, insinuations, and especially assertions of personal knowledge.” United States v. Roberts, 618 F.2d 530, 533 (9th Cir.1980) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935)), cert. denied, 452 U.S. 942, 101 S.Ct. 3088, 69 L.Ed.2d 957 (1981). The remark was improper, but we find such error to be harmless. See United States v. Diaz, 662 F.2d 713, 717-18 (11th Cir.1981) (per curiam); cf. United States v. Vaglica, 720 F.2d 388 (5th Cir.1983) (reference to the rules of evidence was reversible error where the prosecutor thereby implied the existence of evidence that would negate the primary evidence in support of appellant’s defense). Here, since the entire trial was replete with references to drug dealing and violence, it is unlikely that such a comment would have had a material effect on the jury’s verdict. We affirm Lester’s conviction for conspiracy and set aside the judgments of acquittal on Lester’s substantive counts and McGill’s conspiracy count and restore the jury verdicts. . 18 U.S.C. § 1503 provides: Whoever corruptly, or by threats or force, or by any threatening letter or communication," }, { "docid": "9971575", "title": "", "text": "There’s only one thing that makes the government happy, and it’s if you tell the truth. Suppl. ROA at 218. Mr. Anaya argues that the prosecutor’s statements distracted the jurors from the evidence by focusing their attention on her credibility and suggesting his counsel’s job was to trick them. At trial, Mr. Anaya did not object to the statement made in closing argument and only objected to the prosecutor’s questioning of the witness as leading. The district court overruled that objection. The issue of prosecutorial misconduct alleged on appeal was not presented to the district court to decide in the first instance. We therefore review for plain error. United States v. Baldridge, 559 F.3d 1126, 1134-35 (10th Cir.2009). In Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), the Supreme Court deemed a prosecutor’s statement about defense counsel to be misconduct and reversed the defendant’s conviction because the cumulative effect of this and other misconduct unduly influenced the jury. Id. at 89, 55 S.Ct. 629. The prosecutor stated that defense counsel could “twist the questions” and “devise ways to pass counterfeit money.” Id. at 88, 55 S.Ct. 629. Among other things, the prosecutor also misstated facts, bullied witnesses, and “conduct[ed] himself in a thoroughly indecorous and improper manner.” Id. at 84, 55 S.Ct. 629. The Supreme Court determined that the prosecutor’s behavior was’ so prejudicial that a new trial was required. Id. at 89, 55 S.Ct. 629. Here, the prosecutor’s three statements did not approach in substance the statements found objectionable in Berger. Indeed, they were less concerning than statements we have determined were not plain error, See United States v. May, 52 F.3d 885, 887-89 (10th Cir.1995) (holding that prosecutor’s suggestion that the defendant provided false testimony on the advice of his counsel was not reversible plain error). As to the first two statements — the prosecutor’s objection and subsequent questioning of a witness — she said nothing about the truthfulness of defense counsel. Instead, the prosecutor defended the Gov- eminent against the defense counsel’s accusation that, unless witnesses testify as the Government wants," }, { "docid": "3308249", "title": "", "text": "individuals were never identified as drug traffickers. In sum, the prosecutor misled the jury as to the conclusions it could properly draw from the evidence. In Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), the Supreme Court struck down a conviction when the prosecuting attorney’s argument to the jury “was undignified and intemperate, containing improper insinuations and assertions calculated to mislead the jury.” Id. at 85, 55 S.Ct. at 633. The Court warned that “improper suggestions, insinuations and especially assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Id. at 88, 55 S.Ct. at 633. It is apparent to us that the remarks of the prosecutor in this case were even more prejudicial than those decried in Berger. In Berger the example selected for reproach was when the prosecutor added to the evidence by claiming that a particular witness knew the defendant. Here the prosecutor was allowed to claim that the defendant was giving out names of drug traffickers to his attorney during the course of the trial. Yet, there was no evidence to show either that names were given or that those mentioned were involved in illegal activity of any sort. Hence, this closing argument clearly qualifies, in the words of Justice Sutherland, as “undignified and intemperate, containing improper insinuations and assertions calculated to mislead the jury.” Id. at 85, 55 S.Ct. at 633. (4) The prosecutor concluded with a flourish: “It will be your verdict, ladies and gentlemen. It will be one that you must live with. It will be your responsibility. But I wish it was mine.” This court was confronted with this identical, “I wish it was mine” type of argument in United States v. Dawson, 486 F.2d 1326 (5th Cir. 1973). In fact, it was made by the same prosecutor. In Dawson Judge Thornberry carefully explained that his comment, “while not to be applauded, will be tolerated, since the insinuation of guilt was based solely on the evidence introduced and since the jury was not led to believe that" }, { "docid": "7754865", "title": "", "text": "(2) whether the statements that appellant made to government investigators were properly admitted at trial, (3) whether appellant’s trial attorney provided reasonably effective assistance, and (4) whether the government attorney’s question to appellant on cross-examination asking whether appellant’s employer was connected with the Mafia constituted plain error. Although there is sufficient evidence from which the jury could find that appellant communicated threats of injury, as charged in the two counts in which appellant was found guilty, reversal is required because the prosecutor intentionally and for no proper purpose injected into the trial the spectre of organized crime and the Mafia. This prosecutorial misconduct, by itself, requires reversal of appellant’s conviction. We have stated in many recent opinions that a prosecutor’s overzealousness may jeopardize a conviction in an otherwise strong case. United States v. Leon, 534 F.2d 667 (6th Cir. 1976); United States v. O’Donnell, 510 F.2d 1190, 1195 (6th Cir.) (concurring opinion), cert. denied, 421 U.S. 1001, 95 S.Ct. 2400, 44 L.Ed.2d 668 (1975); United States v. Smith, 500 F.2d 293 (6th Cir. 1974); United States v. Calvert, 498 F.2d 409 (6th Cir. 1974). We recognize that a United States Attorney should “prosecute with earnestness and vigor,” but it also is “his duty to refrain from improper methods calculated to produce a wrongful conviction.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935). As we said in United States v. Perry, 512 F.2d 805, 807 (6th Cir. 1975) (a case in which among other errors the prosecutor asked if defendant was a member of the “Dixie Mafia,” a locution similar to that employed here), “the U. S. Attorney’s duty to the public and the defendant obliges him to seek justice rather than convictions.” The government strike force attorney’s question whether the National Account System was part of another organization “of ill character like Mafia or anything like that” injected into the trial a highly prejudicial suggestion that appellant was part of a widely publicized enterprise reputedly involved in organized crime. The district judge properly reprimanded the attorney for asking such a question." }, { "docid": "1637167", "title": "", "text": "we first determine whether the challenged statements were indeed improper. See United States v. Francis, 170 F.3d 546, 549 (6th Cir.1999). Upon a finding of such impropriety, we then “look to see if they were flagrant and warrant reversal.” Id. (citing Carroll, 26 F.3d at 1388). Flagrancy is determined by an examination of four factors: “1) whether the statements tended to mislead the jury or prejudice the defendant; 2) whether the statements were isolated or among a series of improper statements; 3) whether the statements were deliberately or accidentally before the jury; and 4) the total strength of the evidence against the accused.” Id. at 549-50. Without question, the challenged portions of the prosecution’s cross-examination of Boyle, and almost all of the government’s closing argument, were highly improper. While a prosecutor is clearly authorized to strike hard blows in an earnest and vigorous prosecution, he or she “is not at liberty to strike foul ones.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). Badgering and interrupting a witness, name-calling, predicting that the defendant will lie on the stand, and stating before the jury that the defendant is in need of psychiatric help are tactics so deplorable as to define the term “prosecutorial misconduct.” Furthermore, closing arguments that appeal to class prejudices, encourage juror identification with crime victims, or vouch for the defendant’s guilt would each be deemed beyond ethical bounds. To combine all three prejudicial ploys in one argument only compounds the error. We have little hesitation in concluding that the errors by the prosecutor in this case were flagrant. First, the statements made by Osborne throughout the trial were obviously intended to mislead the jury and prejudice the defendant. In fact, the start of the prosecution’s summation argument contained outright lies likely intended to convince the jury that a rich and powerful man, presumably with advantages not shared by the jurors themselves, somehow manipulated the judicial system for his own gain. Osborne knew that his statements intimating that the notoriety of the defendant and his prosecution forced the usual judge and prosecutor" }, { "docid": "22971864", "title": "", "text": "remember and apply Justice Sutherland’s classic admonition: The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods ... as it is to use every legitimate means to bring about a just [conviction]. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). In this ease, however, unlike Berger, the particularly harmful effect of the government’s improper questions was eliminated by the witnesses’ answers or was largely remedied by the district court’s corrective measures, and the evidence against the appellants was very strong without the prosecution’s objectionable tactics. For these reasons, the questions present no ground for reversal. In another case, when improper prosecution questions result in more prejudicial answers, evoke less effective corrective measures by the trial court, or are accompanied by less powerful prosecution evidence, such question might require reversal. 1. In cross-examining Mallory’s mother about her son’s relationship with Lamarr, the prosecutor asked if Mallory and Lamarr had been “involved in drugs together.” The appellants objected, and the court sustained the objection before Ms. Mallory could answer. The district court instructed the jury to disregard the question, but denied appellants’ motion for a mistrial. A mistrial should be granted only if a question so prejudicially affects a defendant’s rights that it denies him a fair trial. We can reverse the denial of the mistrial motion only if the district court abused its discretion by finding that" }, { "docid": "18167919", "title": "", "text": "he elected to exercise that right also), but also the right to counsel, including the right to assist his counsel in his own defense. In tandem, defendant had the right to a jury trial at which, if he elected not to testify, the fact of his presence and his non-testimonial behavior in the courtroom could not be taken as evidence of his guilt. When, as here, the prosecutor describes the courtroom behavior of a defendant who has not testified, and then goes on to tell the jury that it may consider that behavior as evidence of guilt, the prosecutor violates those rights. Moreover, he has introduced evidence of character — courtroom demeanor — solely to prove guilt. United States v. Wright, 489 F.2d 1181, 1186 (D.C. Cir.1973). But it is forbidden to introduce evidence of the character of the accused solely to prove guilt. Fed.R.Evid. 404(a). Therefore, the prosecutor erred in asking the jury to consider defendant’s examination of the photographs as evidence of his participation in the bank robbery. The prosecutor compounded the error of describing defendant’s courtroom behavior as evidence of guilt when he also told the jury that it was defendant who was “explaining to his lawyer what the pictures were all about.” The record is devoid of any evidence, aside from the prosecutor’s assertion, that the defendant knew more about the photographs than did his lawyer. In Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), the Court reversed a conviction where the prosecutor claimed, without evidence in the record, that a particular witness knew the defendant, on the grounds that this statement contained “improper insinuations and assertions calculated to mislead the jury.” Id. at 85, 55 S.Ct. at 632. Similarly, here, the argument that the defendant had been at the scene of the crime because he knew more about the photographs than did his lawyer was wholly improper since there was no evidence of the latter proposition. United States v. Corona, 551 F.2d 1386, 1389 (5 Cir. 1977). The government argues that the prosecutor’s remarks, even if improper, were cured" }, { "docid": "13730211", "title": "", "text": "were going there and I also have an AMC jeep dealership there in Wauchula and there are several calls on here to that also. Q. You are aware, aren’t you, Mr. Pritchett, that a lot of cocaine is imported through Florida— Defense counsel immediately objected and very shortly thereafter moved for a mistrial, both of which the court denied. Pritchett’s first objection is to what he characterizes as successful attempts by the prosecutor to introduce character evidence to prove that he acted in conformity therewith. Use of character evidence in this manner, he correctly points out, is prohibited by Fed.R.Evid. 404(b). The prosecutor responds that her attempts to connect Pritchett with Miles were for the sole purpose of undermining Pritchett’s credibility. She argues that in demonstrating that Pritchett was a close acquaintance of a cocaine dealer, she was merely rebutting his previous testimony that he knew nothing about drugs prior to meeting his codefendant, Carper. Leaving aside for the moment the prosecutor’s motive, we find the line of inquiry objectionable because it could be perceived as an attempt to establish guilt by association. The inference we fear here is that Pritchett, because he maintained a relationship with a convicted cocaine dealer, was himself somehow prone to criminal activity of the same sort. This is the kind of innuendo evidence which the courts, in various contexts, have warned against. See, Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935); United States v. Love, 534 F.2d 87 (6th Cir.1976); United States v. Shelton, 628 F.2d 54 (D.C.Cir.1980). In Shelton, the court held that it was prejudicial error for the prosecutor to cross-examine the defendant in a manner calculated to persuade the jury that he was a member of a drug underworld. It explained: The evidence produced by the prosecutor’s line of cross-examination is not rendered more acceptable by the fact that it is less focused and more subtly adduced than traditional “other crimes” evidence. Quite the contrary. Where the “other crime” alleged is not specified, it is more difficult for the defendant to refute the" }, { "docid": "706289", "title": "", "text": "an emphatic way that he made no promise to Gaudin and did not make a deal.” It is well settled that the jury’s consideration in a case should be limited to those matters actually brought out in evidence and that summation should not be used to put before the jury facts not actually presented in evidence. This doctrine is especially important in criminal trials: the prosecutor represents “a sovereignty whose obligation is to govern impartially.” Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314. As Berger suggests, this obligation may cause a jury to place more confidence in the word of a United States Attorney than in that of an ordinary member of the Bar. And it is especially inadmissible for the prosecutor to put into issue his own professional integrity, as was done here. See dissenting opinion in Henderson v. United States, 6 Cir., 218 F.2d 14, 22. In United States v. Pepe, 2 Cir., 247 F.2d 838, we held it improper for the prosecuting attorney himself to take the stand to impeach the testimony of a witness. We think the prosecutor’s conduct here was equally improper: in effect, he gave testimony as to a fact allegedly within his personal knowledge without taking an oath or subjecting himself to cross-examination. People v. Lovello, 1956, 1 N.Y.2d 436, 154 N.Y.S.2d 8, 136 N.E.2d 483. The government cites in support of the prosecutor’s action our decision in United States v. H. J. K. Theatre Corp., 2 Cir., 236 F.2d 502, certiorari denied sub nom. Rosenblum v. United States, 1957, 352 U.S. 969, 77 S.Ct. 359, 1 L.Ed. 2d 323. In that case, the summation which the defendant unsuccessfully invoked as ground for reversal was not that of the United States Attorney but that of counsel for a codefendant and was based upon testimony offered in evidence in the regular course of the trial which, we said, “amply justified his remarks.” Here, however, in order to destroy an inference based on testimony elicited from the government’s witness, which the defense quite properly had presented to the" }, { "docid": "7460566", "title": "", "text": "the entire case, prejudicially affect substantial rights of the defendant?” United States v. Corona, 551 F.2d 1386, 1388 (5th Cir. 1977), citing Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935); United States v. Rodriguez, 503 F.2d 1370 (5th Cir. 1974); United States v. Rhoden, 453 F.2d 598 (5th Cir. 1972). Okenfuss argues that his substantial right to a fair trial was violated. Prosecutorial misconduct has been the basis for reversal of convictions in our circuit, even absent a timely objection at trial. United States v. Labarbera, 581 F.2d 107 (5th Cir. 1978); United States v. Corona, supra. But in these cases cumulative errors, including suggesting guilt by association, indicating that the prosecutor had knowledge of evidence not being presented to the jury which established the defendant’s guilt, and presenting the evidence in a false light thereby misleading the jury, grossly prejudiced the defendant’s right to a fair trial. At the trial of Okenfuss, the conduct of the prosecutor, although unprofessional, was much less egregious. In fact, Berg’s ungentlemanly denouncement of defense counsel and constant bickering with the court may have prejudiced the government more than the defendant. We are persuaded that the judge’s frequent and severe reprimands of the prosecutor, in front of the jury, sufficiently mitigated any harm which might otherwise have been caused to Okenfuss’ defense. Viewing the prosecutor’s remarks in the context of the entire record to determine their impact on Okenfuss’ right to a fair trial, United States v. Gipson, 593 F.2d 7 (5th Cir. 1979); United States v. Juarez, supra, we reach the conclusion that his substantial right to a fair trial was not adversely affected. It may seem inconsistent for us to hold that the prosecutor’s remarks were improper and yet affirm the conviction. We are not unmindful of the prosecutor’s responsibility to strive for fairness and justice in the judicial system. The words of Justice Sutherland in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), express our sentiments: The United States Attorney is the representative not of an ordinary party" }, { "docid": "18167920", "title": "", "text": "of describing defendant’s courtroom behavior as evidence of guilt when he also told the jury that it was defendant who was “explaining to his lawyer what the pictures were all about.” The record is devoid of any evidence, aside from the prosecutor’s assertion, that the defendant knew more about the photographs than did his lawyer. In Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), the Court reversed a conviction where the prosecutor claimed, without evidence in the record, that a particular witness knew the defendant, on the grounds that this statement contained “improper insinuations and assertions calculated to mislead the jury.” Id. at 85, 55 S.Ct. at 632. Similarly, here, the argument that the defendant had been at the scene of the crime because he knew more about the photographs than did his lawyer was wholly improper since there was no evidence of the latter proposition. United States v. Corona, 551 F.2d 1386, 1389 (5 Cir. 1977). The government argues that the prosecutor’s remarks, even if improper, were cured by the district court’s instructions to the jury. We reject the argument. By allowing the prosecutor’s remarks to pass uncorrected, over defense counsel’s objection, for a not-inconsiderable period of time, the district court implied that the remarks were unobjectionable. This impression was reinforced by the district court’s admonition to defense counsel and its apology to the jury for the “outbreak.” We do not doubt that if an improper statement, not elicited by the government, is made during trial, and if the admissible evidence of guilt is “solid and convincing,” prompt and strong curative instructions may dissipate the error. United States v. Johnson, 610 F.2d 194, 196-197 (4 Cir. 1979). The same may be true when the improper statement is elicited by the government. But this is not such a case. The issue of identification was the central issue and the government had something less than an overwhelming case. The error was reinforced by the district court’s admonition to counsel and its apology to the jury, and the curative instruction did not immediately follow on the" }, { "docid": "13730213", "title": "", "text": "charge or to demonstrate its insignificance. Where the evidence is presented by innuendo, it is less likely that the jury will guard against manipulation. Therefore, the likelihood that a jury will draw on improper inference is even greater in a case like the one before us than it is in the traditional “other crimes” case. 628 F.2d at 57. The prosecutor’s response, that the inquiry was for impeachment purposes only, is unpersuasive. First, the only way by which the jury could conclude that Pritchett’s credibility on the issue of drug knowledge had been impeached would be to draw precisely the sort of associational insinuations which we most fear. Otherwise, the fact that Pritchett was acquainted with an individual who, among other things, had a criminal record for drug sales, is simply not probative on the issue of Pritchett’s own knowledge of drugs. Even were we to conclude otherwise, we would still be left with the conviction that this evidence and the line of inquiry leading to it, should have been excluded because its potential for prejudice far exceeds its probative value. See Fed.R.Evid. 403. Moreover, the prosecutor’s final question in the portion of the transcript we have quoted above reveals an ulterior motive beyond the mere impeachment of Pritchett’s prior testimony. Whether or not Pritchett knew that large quantities of drugs came into the country through Florida is so totally irrelevant to whether Pritchett supplied Carper with drugs that we can only conclude that the prosecutor was attempting to interject otherwise inadmissible evidence. Despite our conviction that the prosecutor’s cross-examination of Pritchett was improper, that fact alone would not justify reversal. Pritchett’s innocent answers to the prosecutor’s questions and the brevity of the exchange in the context of the lengthy trial mitigated its potentially damaging effect. What persuades us that a new trial is warranted here is what we can only characterize as improper testimony by the trial judge. The court, responding to an equally improper statement by Carper’s defense counsel, confirmed what the prosecutor had unsuccessfully attempted to solicit from Pritchett — that Miles was in fact a convicted" }, { "docid": "3308248", "title": "", "text": "Counsel, and I will allow you to decide that yourself. All right, you may proceed. [PROSECUTOR]: Ladies and gentlemen, you saw it. You decide whether or not he went over there and asked him about those names. And if this poor innocent victim of circumstances didn’t supply the names, they had to come from out of the air somewhere. Record at 271-72. Thus, over objection, the prosecutor was allowed to urge guilt by association. He encouraged the jury to find that various persons mentioned during the course of Ortega’s cross-examination were drug traffickers and acquaintances of the defendant. These inferences were wholly unsupported by the record. It is true that on three separate occasions during the rather lengthy cross-examination of the Government’s chief witness, Corona’s counsel asked permission of the court to consult with his client. These consultations all occurred after counsel had asked Ortega if he knew a certain individual, however, not before. After the brief conferences, which of course were not transcribed, counsel began questioning the witness about a different subject altogether. These individuals were never identified as drug traffickers. In sum, the prosecutor misled the jury as to the conclusions it could properly draw from the evidence. In Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), the Supreme Court struck down a conviction when the prosecuting attorney’s argument to the jury “was undignified and intemperate, containing improper insinuations and assertions calculated to mislead the jury.” Id. at 85, 55 S.Ct. at 633. The Court warned that “improper suggestions, insinuations and especially assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Id. at 88, 55 S.Ct. at 633. It is apparent to us that the remarks of the prosecutor in this case were even more prejudicial than those decried in Berger. In Berger the example selected for reproach was when the prosecutor added to the evidence by claiming that a particular witness knew the defendant. Here the prosecutor was allowed to claim that the defendant was giving out names of drug traffickers" }, { "docid": "23338226", "title": "", "text": "personal belief of the defendant’s guilt, constituted error and then determining that such conduct constituted reversible error). Thus, this Court must determine whether defendant’s right to a fair trial was prejudiced by improper prosecutorial conduct. There are instances where a “single misstep” on the part of the prosecutor may be so destructive of the right to a fair trial that reversal is mandated. See Pierce v. United States, 86 F.2d 949 (6th Cir.1936). We realize that such instances may be rare, but we believe this case exemplifies a single misstep so destructive to defendant’s right to a fair trial that it constitutes reversible error. C. 1. This Circuit has many times expressed itself fully on the issue of misconduct of government counsel in the prosecution of criminal cases. Our decisions in this area have recognized the standard of conduct imposed upon the prosecution of federal crimes as enunciated in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). See, e.g., Bess, 593 F.2d at 756-57. In Berger, the Supreme Court considered an instance of prosecutorial misconduct involving both improper cross examination of witnesses and improper argument to the jury in a prosecution for conspiracy to utter counterfeit notes. Berger, 295 U.S. at 79-80, 55 S.Ct. at 629-30. The Supreme Court found that the prosecutor’s conduct rose to the level of prejudicial misconduct because his argument to the jury was undignified and intemperate. The argument was found to have contained improper insinuations and assertions calculated to mislead the jury. Id. at 85, 55 S.Ct. at 632. Because the jury will normally place great confidence in the faithful execution of the obligations of a prosecuting attorney, improper insinuations or suggestions are apt to carry more weight against a defendant than such statements by witnesses. The Supreme Court stated the following in asserting that the conduct of government prosecutors must meet a high standard: The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all;" }, { "docid": "6142910", "title": "", "text": "jury will guard against manipulation. Therefore, the likelihood that a jury will draw on improper inference is even greater in a case like the one before us than it is in the' traditional “other crimes” case. The government does not seek to justify the prosecutor’s line of cross-examination under one of the exceptions contained in Federal Rule of Evidence 404(b). It does not contend that the evidence produced established “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Moreover, the government did not seek a ruling from the trial court that the evidence was “necessary,” and it did not obtain a preliminary finding that there was “clear and convincing evidence” to connect Shelton to the activities imputed to him by innuendo. These requirements, developed to test the admissibility of evidence relating to specific “other crimes,” must be attended with even greater care in cases (like the one at hand) involving, at best, speculation regarding other crimes. However, these requirements were ignored by the government. Perhaps motivated by a realization that important requirements were overlooked at trial, the government limits its argument on appeal to a contention that the evidence produced by the challenged line of cross-examination did not prejudice the jury against Shelton. Counsel for the government cites Kotteakos v. United States for the proposition that harmless error does not require reversal. That proposition is clearly correct. But Kotteakos itself teaches: [I]f one cannot say, with fair assurance, . that the judgment [of the jury] was not substantially swayed by the- error, it is impossible to conclude that substantial rights were not affected. The —undeniably might be read by the jury as inferring complicity by Shelton in the deeds imputed to Duke. inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand. And we have said that in assessing prejudice all serious doubts must be resolved in the defendant’s favor." }, { "docid": "13730214", "title": "", "text": "prejudice far exceeds its probative value. See Fed.R.Evid. 403. Moreover, the prosecutor’s final question in the portion of the transcript we have quoted above reveals an ulterior motive beyond the mere impeachment of Pritchett’s prior testimony. Whether or not Pritchett knew that large quantities of drugs came into the country through Florida is so totally irrelevant to whether Pritchett supplied Carper with drugs that we can only conclude that the prosecutor was attempting to interject otherwise inadmissible evidence. Despite our conviction that the prosecutor’s cross-examination of Pritchett was improper, that fact alone would not justify reversal. Pritchett’s innocent answers to the prosecutor’s questions and the brevity of the exchange in the context of the lengthy trial mitigated its potentially damaging effect. What persuades us that a new trial is warranted here is what we can only characterize as improper testimony by the trial judge. The court, responding to an equally improper statement by Carper’s defense counsel, confirmed what the prosecutor had unsuccessfully attempted to solicit from Pritchett — that Miles was in fact a convicted cocaine dealer. In United States v. Hickman, 592 F.2d 931 (6th Cir.1979), Judge Keith underscored the risks attendant upon judicial intervention in the trial proceedings. “The problem,” he wrote, “is that potential prejudice lurks behind every intrusion ... The reason for this is that a trial judge’s position before a jury is ‘overpowering’1 ... His position makes ‘his slightest action of great weight with the jury.’ ” Id. at 933. By his interjection here, the judge below lent the weight of the bench to a line of inquiry we have already determined was impermissibly prejudicial. Moreover, because of the context in which his editorial occurred — immediately following the defendant’s negative answers — his remarks created a two-fold danger. Not only was the possibility that the jury would draw the prohibited inference strengthened, but there arose simultaneously the possibility that the jury would take the judge’s confirmation as an impeachment of Pritchett’s credibility. Whether or not either of the two possibilities actually come to fruition is impossible to say and, we think, irrelevant. We are" }, { "docid": "13730212", "title": "", "text": "as an attempt to establish guilt by association. The inference we fear here is that Pritchett, because he maintained a relationship with a convicted cocaine dealer, was himself somehow prone to criminal activity of the same sort. This is the kind of innuendo evidence which the courts, in various contexts, have warned against. See, Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935); United States v. Love, 534 F.2d 87 (6th Cir.1976); United States v. Shelton, 628 F.2d 54 (D.C.Cir.1980). In Shelton, the court held that it was prejudicial error for the prosecutor to cross-examine the defendant in a manner calculated to persuade the jury that he was a member of a drug underworld. It explained: The evidence produced by the prosecutor’s line of cross-examination is not rendered more acceptable by the fact that it is less focused and more subtly adduced than traditional “other crimes” evidence. Quite the contrary. Where the “other crime” alleged is not specified, it is more difficult for the defendant to refute the charge or to demonstrate its insignificance. Where the evidence is presented by innuendo, it is less likely that the jury will guard against manipulation. Therefore, the likelihood that a jury will draw on improper inference is even greater in a case like the one before us than it is in the traditional “other crimes” case. 628 F.2d at 57. The prosecutor’s response, that the inquiry was for impeachment purposes only, is unpersuasive. First, the only way by which the jury could conclude that Pritchett’s credibility on the issue of drug knowledge had been impeached would be to draw precisely the sort of associational insinuations which we most fear. Otherwise, the fact that Pritchett was acquainted with an individual who, among other things, had a criminal record for drug sales, is simply not probative on the issue of Pritchett’s own knowledge of drugs. Even were we to conclude otherwise, we would still be left with the conviction that this evidence and the line of inquiry leading to it, should have been excluded because its potential for" }, { "docid": "13730210", "title": "", "text": "don’t know whether he was convicted or not. Q. Well, did you know he dealt in cocaine? A. I did not. Q. You didn’t know that? A. No, ma’am. Q. Let me ask you about all these calls to Florida. [DEFENSE COUNSEL FOR CARPER]: Your Honor, I want to object. The only Lee Miles I know — I don’t know about this conviction, but I know the one who was a cooperating individual. THE COURT: Well, Mr. Friedman, I don’t think the test is which ones of the dope dealers you know. He is the same one I sentenced, isn’t he? [PROSECUTOR]: Yes, your Honor. Cross-examination proceeded without further objection through three additional questions. Then, referring again to the list of telephone calls, the prosecutor asked: Q. There are an awful lot of telephone calls to Florida aren’t there? A. Yes, there are. Q. Did you go down there and pick up some cars? A. I have been there on several occasions and delivered cars to them and also Wauchula, Florida. A lot of them were going there and I also have an AMC jeep dealership there in Wauchula and there are several calls on here to that also. Q. You are aware, aren’t you, Mr. Pritchett, that a lot of cocaine is imported through Florida— Defense counsel immediately objected and very shortly thereafter moved for a mistrial, both of which the court denied. Pritchett’s first objection is to what he characterizes as successful attempts by the prosecutor to introduce character evidence to prove that he acted in conformity therewith. Use of character evidence in this manner, he correctly points out, is prohibited by Fed.R.Evid. 404(b). The prosecutor responds that her attempts to connect Pritchett with Miles were for the sole purpose of undermining Pritchett’s credibility. She argues that in demonstrating that Pritchett was a close acquaintance of a cocaine dealer, she was merely rebutting his previous testimony that he knew nothing about drugs prior to meeting his codefendant, Carper. Leaving aside for the moment the prosecutor’s motive, we find the line of inquiry objectionable because it could be perceived" }, { "docid": "14925902", "title": "", "text": "to the prosecutor alerted the jury to the improper nature of the remarks even without defense counsel’s objections or a curative instruction. Cf. United States v. Wicker, 933 F.2d 284, 290 (5th Cir.1991) (no plain error where “not only was there no objection, but also the district court interrupted the prosecutor sua-sponte immediately after these comments were made to remind her that she was making an improper argument” and provided a general cautionary instruction to the jury). Moreover, the general line of questioning — though not the form — was appropriate given the topics introduced in direct examination. Streed testified on direct regarding the effects of violent criminal activity on Davis’s mental and physical health. The defense introduced the crime statistics during direct examination to support the theory that Davis was a product of the violent atmosphere in which he worked, thus opening the door to the Government’s questions on cross-examination. Additionally, the questions about Hardy’s war with Poonie tested Streed’s knowledge of the case. There was a good-faith factual basis for the questioning, because Williams had already testified that Poonie was a dealer in the Florida project who was one of Hardy’s enemies. Moreover, the jury had already heard wiretap excerpts of Davis and Hardy discussing Hardy’s war with Poonie, demonstrating that Davis was aware of Poonie’s and Hardy’s rivalry. Cf. United States v. Johnston, 127 F.3d 380, 393 (5th Cir.1997) (prejudice mitigated by curative instruction and wiretap evidence to corroborate improperly solicited testimony in cross-examination). Further, the Government did not mention Poonie during any other point in the trial, and did not argue about Poonie or his war with Hardy in summation. Accordingly, the prosecutor’s “testifying”, while improper, see Berger v. United States, 295 U.S. 78, 84, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), did not affect Davis’s substantial rights. 8. Finally, Davis argues that the Government’s remarks in summation suggested that Hardy was a killer. At the eligibility phase, the prosecutor opened by telling jurors they would hear how “Davis had developed a particular relationship with Paul Hardy,” a “street assassin to the extent where he protected" } ]

[ { "docid": "1998875", "title": "", "text": "and affidavits accompanying them, after a motion of defendants to dismiss the complaints had been overruled, we do not deem it necessary to pass on these constitutional questions on these appeals, although an .appellate court may on such an appeal consider the entire case, and, if the complaint fails to state a cause of action, reverse the order granting the temporary injunction and direct a decree of dismissal. Shubert v. Woodward, 167 Fed. 47, 61, 92 C. C. A. 509, and authorities there cited. But ordinarily the ajipellate court on such an appeal will not go into the merits of the case, further than necessary to determine whether the trial court exceeded a reasonable discretion in making the order, especially where the rights of the parties can only-fee determined upon full proof of the fncts. City of Owensboro v. Cumberland Tel. & T. Co., 174 Fed. 739, 747, 99 C. C. A. 1. If the complaint challenges the constitutionality of a legislative act, and also raises other questions of equitable cognizance, on which the action can be determined without passing on the constitutionality of the act, courts will not pass on it. Only when it is absolutely necessary will they pass upon a constitutional question. Weyman-Bruton Co. v. Ladd, 231 Fed. 898, 901, 146 C. C. A. 94. And this applies with greater force on appeals from an interlocutory injunction granted on the complaint, after a motion to dismiss has been denied and no answer tendered. Therefore, leaving out of consideration the constitutional questions raised, the question is, Are the other allegations in the complaint sufficient to warrant the granting of the interlocutory injunction? Plainti 0?s charge: That they are live stock commission brokers, operating, the one in case No. 5802 in Kansas City, Mo., and the other in case No. 5799, in Omaha, Neb., under federal licenses issued to them pursuant to the provisions of the Lever Act. (Comp. St. 1918, Comp. St. Aun. Supp. 1919, §§ 3Í15y8e-3115%kk, 3115%L3115%r). That their business is handling live stock in their respective markets, and that the services rendered by them are personal" } ]

[ { "docid": "23323449", "title": "", "text": "256, 73 L.Ed. 972. When the nature of the questions which arise upon a suit make them a proper subject for deliberate examination, and if a stay of proceedings will not result in too great injury to the defendants, it is proper to preserve the existing state of things until the rights of the parties can be fairly and fully investigated and determined. Hadden et al. v. Dooley et al. (C.C.A.2) 74 F. 429, 431; Blount v. Societe Anonyme du Filtre, etc. (C.C.A.6) 53 F. 98, 101. Since the granting or withholding of a temporary injunction rests in the sound judicial discretion of the trial court to which the application is made, its order may not be reversed by the appellate courts without clear proof of an abuse of discretion, even though the appellate court, under the same circumstances, would have made a different order. American Grain Separator Co. et al. v. Twin City Separator Co. (C.C.A.8) 202 F. 202, 206; Allen v. Omaha Live Stock Commission Co. (C. C.A.8) 275 F. 1; Security Metal Products Co. et al. v. Kawneer Co. (C.C.A.8) 14 F.(2d) 569, 575, supra; Special School Dist. v. Speer (C.C.A.8) 75 F.(2d) 420, 422, supra. Ordinarily an appellate court, upon an appeal from an order granting or denying a temporary injunction, will not go into the merits of the case further than is necessary to determine whether the trial court exceeded a reasonable discretion in making the order, and this is especially true where the rights of the parties can only or can better be determined upon full proof of the facts. Allen v. Omaha Live Stock Commission Co. (C.C.A.8) 275 F. 1, supra; Security Metal Products Co. et al. v. Kawneer Co. (C.C.A.8) 14 F.(2d) 569, 575, supra; Special School Dist. v. Speer (C.C.A.8) 75 F.(2d) 420, 422, supra; Blount v. Societe Anonyme du Filtre, etc., (C.C.A.6) 53 F. 98, 102, supra. “A pendente lite injunctional order will not be reversed unless there was an abuse of discretion; and this can only appear from an obvious misunderstanding of the facts or a palpable misapplication of" }, { "docid": "23323451", "title": "", "text": "well-settled rules of law on the part of the trial judge.” City of Chicago et al. v. Fox Film Corporation (C.C.A.7) 251 F. 883; Security Metal Products Co. et al. v. Kawneer Co. (C.C.A.8) 14 F.(2d) 569, 576, supra. While “it is settled that the mere fact that a law is unconstitutional does not entitle a party to relief by injunction against proceedings in compliance therewith, but it must appear that he has no adequate remedy by the ordinary processes of the law, or that the case falls under some recognized head of equity jurisdiction” (Cruikshank v. Bidwell, 176 U.S. 73, 80, 20 S.Ct. 280, 283, 44 L.Ed. 377), there is no doubt as to the power of a court of equity to enjoin even criminal proceedings under alleged unconstitutional statutes when essential to the safeguarding of rights of property and when circumstances are exceptional and the danger of irreparable loss is both great and immediate. Sparks v. Mellwood Dairy et al. (C.C.A.6) 74 F.(2d) 695, 697; Stafford v. Wallace, 258 U.S. 495, 512, 42 S.Ct. 397, 66 L.Ed. 735, 23 A.L.R. 229; Cline v. Frink Dairy Co., 274 U.S. 445, 452, 47 S.Ct. 681, 71 L.Ed. 1146; Fenner v. Boykin, 271 U.S. 240, 243, 46 S.Ct. 492, 70 L.Ed. 927; Packard v. Banton, 264 U.S. 140, 44 S.Ct. 257, 68 L.Ed. 596; Hygrade Provision Co. v. Sherman, 266 U.S. 497, 502, 45 S.Ct. 141, 69 L.Ed. 402; Terrace v. Thompson, 263 U.S. 197, 214, 44 S.Ct. 15, 68 L.Ed. 255; Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, 13 L.R.A.(N.S.) 932, 14 Ann. Cas. 764; Davis & Farnum Mfg. Co. v. Los Angeles, 189 U.S. 207, 218, 23 S.Ct. 498, 47 L.Ed. 778; Dobbins v. Los Angeles, 195 U.S. 223, 236, 241, 25 S.Ct. 18, 49 L.Ed. 169; In re Sawyer, 124 U.S. 200, 209, 211, 8 S.Ct. 482, 31 L.Ed. 402; Pierce v. Society of the Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L.Ed. 1070, 39 A.L.R. 468; Village of Euclid et al. v. Ambler Realty Co., 272 U.S. 365, 386, 47" }, { "docid": "23283515", "title": "", "text": "grounds for believing that he had. Since the amendment, the decisions have been consistent with Firestone v. Harvey, supra; Franklin v. Monning, supra, and Aller-Wilmes Jewelry Co. v. Osborn, supra. See Bank of Monroe v. Gleeson, 9 F.(2d) 520 (C.C.A.8); Baash-Ross Tool Co. et al. v. Stephens, 73 F.(2d) 902, 906 (C.C.A.9); Hartsfield Co. v. Smith, 61 F.(2d) 723, 724 (C.C.A.5) ; and Farmers Savings Bank v. Allen, 41 F.(2d) 208, 211 (C.C.A.8). We think that upon the record the court was not required to deny the discharge. The report of the special master was advisory only. The bankrupt had a limited education; he had been a merchant for twenty-two years; had had no outside business experience; had been a patron of appellant; had been a borrower; and had never shown a disposition to misrepresent his financial condition. He had deposited $1,002 of the insurance fund with appellant. It does not appear that it required him to report his financial condition with meticulous care. It is conceded that appellant did not rely altogether upon the statement, but, as was its custom, made an independent investigation. The right to the discharge was addressed to the discretion of the court, In re Merritt, 28 F.(2d) 679 (C.C.A.9); BaashRoss Tool Co. v. Stephens, supra, not to an arbitrary discretion, of course, but to its sound judicial discretion. We do not find that there was a gross abuse of the court’s function. The bankrupt had one purpose, common both to his business and his family; i. e., to make ends meet. The basis of the court’s order is not disclosed, but we think it might reasonably have concluded that the bankrupt, situated as he was, naturally even if erroneously, believed that he was not incurring legal liability for the insurance fund of his children (which he had himself made possible) by using it in the business out of which the children were being supported. Such a finding would neg ative any suggestion of deliberate, intentional falsification which might conceivably have arisen from appellant’s evidence. The order of the District Court is affirmed." }, { "docid": "13874785", "title": "", "text": "court, that the law intrusted the granting or refusing of these injunctions, and the only question here is: Does the proof clearly establish an abuse of that discretion?” (Italics supplied.) Also see Prendergast et al. v. New York Tel. Co., supra, 262 U.S. 43, at page 51, 43 S.Ct. 466, 67 L.Ed. 853; Meccano, Limited, v. John Wanamaker, 253 U.S. 136, 141, 40 S.Ct. 463, 64 L.Ed. 822; City of Louisville v. Louisville Home Telephone Co. (C.C.A.) 279 F. 949, 957; Florida Public Utilities Co. v. City of West Palm Beach et al. (C.C.A.) 36 F.(2d) 318; and in Rahley v. Columbia Phonograph Co. (C.C.A.) 122 F. 623, 625, the court said: “The appellant sets out 10 assignments of error. They all go to the merits of the controversy, and could very properly be discussed if the case were here after a full hearing. But the question this court at this stage is called upon to decide is whether the court below, having the discretion to grant or refuse the temporary injunction, has in this instance abused its discretion.” The Supreme Court generally disposes of appeals from interlocutory orders granting temporary injunctions by affirming upon the authority of cases holding that the matter rests in the sound discretion of the trial court. Baldwin v. G. A. F. Seelig, Inc., 293 U.S. 522, 55 S.Ct. 120, 79 L.Ed. 632; Langer v. Grandin Farmers’ Co-operative Elevator Co., 292 U.S. 605, 54 S.Ct. 772, 78 L.Ed. 1467; Northwest Bancorporation v. Benson, 292 U.S. 606, 54 S.Ct. 775, 78 L.Ed. 1468; South Carolina Power Co. v. South Carolina Tax Commission et al., 286 U.S. 525, 52 S.Ct. 494, 76 L.Ed. 1268; Ogden & Moffet Co. v. Michigan Public Utilities Commission, 286 U.S. 525, 52 S.Ct. 495, 76 L.Ed. 1268; United Drug Co. v. Washburn, 284 U.S. 593, 52 S.Ct. 202, 76 L.Ed. 511. We are not satisfied that there was any abuse of judicial discretion by the District Judge in granting the temporary injunction upon the giving of a bond to make restitution to its customers in case the order of the Commission is" }, { "docid": "23323469", "title": "", "text": "jurisdiction, and the application of this principle to a particular case, must depend altogether upon the character of the case, as disclosed in the pleadings.” The claim of the appellants that the court was without jurisdiction to grant the temporary injunction because the complaint did not originally show that the amount in controversy exceeded $3,000, we regard as without merit upon the record before us. The supplemental complaint, as finally amended, which is the only complaint contained in the record, contains a sufficient averment in that regard (see Packard v. Banton, 264 U.S. 140, 142, 44 S.Ct. 257, 68 L.Ed. 596), and the trial court has found that the jurisdictional amount is involved. The appellants assert that the trial court improperly permitted the complaint to be amended with respect to the amount in controversy. In view of the finding of jurisdiction, it would not seem to be important how or under what circumstances the amendment was allowed to conform the pleading to the proof. A. C. Motor Freight Lines, Inc., v. Shingledecker (C.C.A.7) 70 F.(2d) 827, 828; Oriole Phonograph Co. et al. v. Kansas City Fabric Products Co. et al. (C.C.A.8) 34 F.(2d) 400; McAllister et al. v. Sloan (C.C.A.8) 81 F.(2d) 707. We have refrained from expressing an opinion as to the constitutionality of the act, because of the rule that upon an appeal from an order granting a temporary injunction, the appellate court will ordinarily not go into the merits of the case further than is necessary to determine whether the trial court exceeded a reasonable discretion, and because some of the questions presented can better be determined after the case has been tried. The order appealed from is affirmed." }, { "docid": "23702902", "title": "", "text": "28 L.Ed. 462; Chicago, B. & Q. R. Co. v. Willard, 220 U.S. 413, 31 S.Ct. 460, 55 L.Ed. 521; Johnson v. Noble et al. (C.C.A.10) 64 F.(2d) 396; Rogers et al. v. Penobscot Mining Co. et al. (C.C.A.8) 154 F. 606; Spencer v. Patey (C.C.A.2) 243 F. 555. The failure of the appellant to bring up the evidence merely limits this court in its review to a consideration of the primary record. American Nat. Red Cross v. Raven Honey Dew Mills (C.C.A.8) 74 F.(2d) 160, 162; Brown Sheet Iron & Steel Co. v. Maple Leaf Oil & Refining Co., Limited (C.C.A.8) 68 F.(2d) 787; Harris et al. v. United States (C.C.A.4) 70 F.(2d) 897; Bisbee Linseed Co. v. Paragon Paint & Varnish Corporation (C.C.A.2) 66 F.(2d) 595. The question before us, then, is whether the allegations of the petition for removal will sustain the refusal to remand. Cox v. Early et al. (C.C.A.8) 65 F.(2d) 891. In determining removability, the court is not required to consider more than whether there was a real intention to obtain a joint judgment, and whether there was colorable ground for it shown. It is not to decide whether a flaw could be picked in the complaint on special demurrer. Chicago, R. I. & P. R. Co. v. Schwyhart, 227 U.S. 184, 194, 33 S.Ct. 250, 57 L.Ed. 473; Morris v. E. I. Du Pont De Nemours & Co. et al. (C.C.A.8) 68 F.(2d) 788, 791. Even though a plaintiff has misconceived his cause of action and has no right to maintain it against the defendants jointly, that does not change an alleged joint cause of action into a separable controversy for the purpose of removal. The law looks to the case made in the pleadings and determines whether the state court shall be required to surrender its jurisdiction to the federal court. Alabama Great Southern R. Co. v. Thompson, 200 U.S. 206, 218, 219, 26 S.Ct. 161, 50 L.Ed. 441, 4 Ann.Cas. 1147; Chicago, B. & Q. R. Co. v. Willard, supra, 220 U.S. 413, 31 S.Ct. 460, 55 L.Ed. 521; Morris v." }, { "docid": "14585974", "title": "", "text": "of Phillips County, Ark. (C.C.A.8) 58 F.(2d) 234; United States v. Douglas, Buchanan & Crow, Inc., et al. (C.C.A.8) 61 F.(2d) 821; Cronkleton v. Hall (C.C.A.8) 66 F.(2d) 384, 386; Hawthorne v. Bankers’ Life Co. (C.C.A.8) 63 F.(2d) 971; Gerlach v. Chicago, R. I. & P. Ry. Co. (C.C.A.8) 65 F.(2d) 862; Anderson v. United States (C.C.A.8) 65 F.(2d) 870; Town Club of St. Louis v. United States (C.C.A.8) 68 F.(2d) 620; Hussey-Hobbs Tie Co. v. Louisville & N. R. Co. (C.C.A.8) 69 F.(2d) 92; Jones et al. v. Gill et al. (C.C.A.8) 67 F.(2d) 159; Mandel Bros., Inc., v. Henry A. O’Neil, Inc., et al. (C.C.A.8) 69 F.(2d) 452; Baker Ice Mach. Co., Inc., v. Hebert (C.C.A.8) 76 F.(2d) 73, 74, 75; Union Bleachery v. United States (C.C.A.4) 79 F.(2d) 549, 550, 551, 102 A.L.R. 204; Fleischmann Const. Co. v. United States, 270 U.S. 349, 46 S.Ct. 284, 70 L.Ed. 624; Eastman Kodak Co. et al. v. Gray, 292 U.S. 332, 54 S.Ct. 722, 78 L.Ed. 1291; Harvey Co. v. Malley et al., 288 U.S. 415, 53 S.Ct. 426, 77 L.Ed. 866; Lewellyn v. Electric Reduction Co., 275 U.S 243, 48 S.Ct. 63, 72 L.Ed. 262. The bare exception to the general finding is not sufficient to preserve for review the question of the sufficiency of the evidence to support the finding and judgment. Wilson v. Merchants’ Loan & Trust Co., 183 U.S. 121, 127, 22 S.Ct. 55, 46 L.Ed. 113; Martinton v. Fairbanks, 112 U.S. 670, 5 S.Ct. 321, 28 L.Ed. 862; Tabor v. Commercial Nat. Bank of Cleveland (C.C.A.8) 62 F. 383, 388; Humphreys v. Third Nat. Bank of Cincinnati, Ohio (C.C.A.6) 75 F. 852, 856; American Surety Co. of New York v. Cotton Belt Levee Dist. No. 1 of Phillips County, Ark. (C.C.A.8) supra, 58 F.(2d) 234, 235; United States v. Douglas, Buchanan & Crow, Inc., et al. (C.C.A.8) supra, 61 F.(2d) 821, 825. The judgment is affirmed." }, { "docid": "23323445", "title": "", "text": "the complainants, by bargaining individually with their employees, committed a violation of the terms of the act; that the act in its purported application to complainants, their business, and their relations to their employees, is in excess of the powers of Congress and wholly unconstitutional and void; that complainants are threatened with irreparable injury from the acts and threatened acts of the defendants, and have no adequate remedy at law; that the motion to dismiss should be denied; and that the complainants are entitled to a temporary injunction restraining the defendants, during the pendency of the suit, from the further prosecution of the complainants, from further enforcement of the act against complainants at their mill at Aurora, and from interfering or attempting to interfere with the conduct of complainants’ business or the relations between complainants and their employees. There is in the record no approved statement of the evidence presented upon the application for the temporary writ, and we find nothing in the record which would justify the assumption that we have before us all of the evidence upon which the findings of fact were based. We must therefore take the facts to be as the trial court has found them. King Lumber Co. et al. v. Benton et al. (C.C.A.5) 186 F. 458, 549; Carson et al. v. Hurt (C.C.A.5) 250 F. 30; Buessel v. United States (C.C.A.2) 258 F. 811; Oriole Phonograph Co. et al. v. Kansas City Fabric Products Co. et al. (C.C.A.8) 34 F.(2d) 400, 401; A. C. Motor Freight Lines, Inc., v. Shingledecker (C.C.A.7) 70 F.(2d) 827, 828. The result of the trial court’s inquiry into the issues and facts is set forth in the findings and conclusions (see Public Service Commission of Wisconsin et al. v. Wisconsin Telephone Co., 289 U.S. 67, 71, 53 S.Ct. 514, 77 L.Ed. 1036), and such findings are presumptively correct. Stearns-Roger Mfg. Co. v. Brown (C.C.A.8) 114 F. 939, 943. The question with which we are directly concerned on this appeal is not the constitutionality of the National Labor Relations Act, but the propriety of the granting by the" }, { "docid": "17850691", "title": "", "text": "v. Caldwell et al. (C.C.A.8) 58 F.(2d) 721, 731; Howe & Rogers Co. v. Crittenden et al. (C.C.A.2) 76 F.(2d) 749; Hoffman v. McClelland, 264 U.S. 552, 558, 44 S.Ct. 407, 68 L.Ed. 845. The appellants also contend that the court, even upon application of persons not parties to the bankruptcy proceedings, has the power to vacate an adjudication in bankruptcy in order to protect itself from being used in connection with the perpetration of a fraud; citing Zeitinger et al. v. Hargadine-McKittrick Dry Goods Co. (C.C.A.8) 244 F. 719, 723; Cornwall Press, Inc., v. Ray Long & Richard R. Smith, Inc., et al. (C.C.A.2) 75 F.(2d) 276, 277; McDonough et al. v. Owl Drug Co. et al. (C.C.A.9) 75 F.(2d) 45, 52, 53; In re E. C. Denton Stores Co. (D.C.Ohio) 5 F.Supp. 307; In re Mississippi Valley Utilities Corporation (D.C.Del.) 2 F.Supp. 995; In re Campbell County Hardware Co. (D.C.Tenn.) 15 F.(2d) 78. There appears to be no serious controversy between the parties as to the general rule that a court of bankruptcy has jurisdiction to determine controversies or liens upon assets in connection with the administration of estates in bankruptcy, or that the court may, under certain circumstances, refuse to assume jurisdiction or to retain jurisdiction where it appears that the purpose of the bankruptcy proceeding is a fraudulent one. It is necessary to decide whether the general rules of law upon which the appellants rely are here applicable. The appellants are not, in any proper sense, parties to the bankruptcy proceedings. They are not creditors of the bankrupt, nor stockholders; nor have they any legal title or right to possession of the assets. They have no lien upon the assets by virtue of any contracts or dealings with the bankrupts. They are bondholders of General Theatres, which once owned a majority of the stock of Fox Film, which in turn owned stock of Wesco, which owned the stock of the bankrupts and other subsidiary corporations. Appellants say that the Chase National Bank bore a fiduciary relation to the bondholders of General Theatres, and, wrongfully, and in" }, { "docid": "11112606", "title": "", "text": "F.(2d) 235, 238; Higbee v. Chadwick (C.C.A.6) 220 F. 873; Axelrod v. Osage Oil & Refining Co. et al. (C.C.A.8) 29 F.(2d) 712; Marker, Federal Appellate Jurisdiction & Procedure, p. 153, § 126. Where a decree is against two or more defendants, but several as to one, he may appeal without the other defendants joining and without an order of severance. Federal Intermediate Credit Bank v. L'Herisson (C.C.A.8) 33 F.(2d) 841, 842, 843; Osage Oil & Refining Co. v. Mulber Oil Co. (C.C.A.10), supra; Hirschfeld v. McKinley (C.C.A.9) 78 F.(2d) 124, 129; Winters v. United States, 207 U.S. 564, 575, 28 S.Ct. 207, 52 L.Ed. 340; Marker, Federal Appellate Jurisdiction & Procedure, p. 153, § 126. It is further contended by the appellees that the interlocutory decree of May 2, 1933, was a final adjudication of Martin’s rights to the fund, and that, since he has taken no appeal from that decree, this appeal should be dismissed. The language of the decree of May 2, 1933, is a complete answer to this contention. The court merely directed Martin to deposit the payments in controversy in court “to abide further orders as to the disposition of said fund.” The court later considered Martin’s claim and the exceptions thereto, and entered the decree appealed from, which is the final decree in this suit. The issues raised by the pleadings were not determined by the interlocutory decree, the purpose of which was obviously to preserve the status quo and to bring into being a fund to abide the final result of the litigation. A decree, to be final for the purposes of appeal, must terminate the litigation of the parties on the merits of the case, so that, if there is an affirmance, the court below will have nothing to do but execute the decree appealed from. Grant v. Phoenix Mut. L. Ins. Co., 106 U.S. 429, 430, 431, 1 S.Ct. 414, 27 L.Ed. 237; Louisiana Nat. Bank v. Whitney, 121 U.S. 284, 285, 7 S.Ct. 897, 30 L.Ed. 961; Norris Safe & Lock Co. et al. v. Manganese Steel Safe Co. (C.C.A.9)" }, { "docid": "11112605", "title": "", "text": "et al., supra; Mattingly v. N. W. Virginia Railroad Co., supra; Weinstein v. Black Diamond S.S. Corporation et al. (C.C.A.2) 31 F.(2d) 519; Hunn et al. v. Lewis et al. (C.C.A.8) 25 F.(2d) 271, 272; In re T. E. Hill Co. (C.C.A.7) 148 F. 832; Osage Oil & Refining Co. v. Mulber Oil Co. (C.C.A.10) 38 F.(2d) 396, 398; Galveston H. & N. Ry. Co. v. House et al. (C.C.A.5) 102 F. 112. We think that this appeal should not be dismissed on the ground of the claimed insufficiency of the service of citation on some of the appellees. It is also contended on behalf of the appellees that the contractor was a necessary party to this appeal. We think he was not. He made no claim to the fund. His answer constituted a disclaimer. He was not substantially affected by the decree appealed from. A nominal party without interest in the judgment or decree appealed from need not join in the appeal. United States Fidelity & Guaranty Co. v. Sweeney et al. (C.C.A.8) 80 F.(2d) 235, 238; Higbee v. Chadwick (C.C.A.6) 220 F. 873; Axelrod v. Osage Oil & Refining Co. et al. (C.C.A.8) 29 F.(2d) 712; Marker, Federal Appellate Jurisdiction & Procedure, p. 153, § 126. Where a decree is against two or more defendants, but several as to one, he may appeal without the other defendants joining and without an order of severance. Federal Intermediate Credit Bank v. L'Herisson (C.C.A.8) 33 F.(2d) 841, 842, 843; Osage Oil & Refining Co. v. Mulber Oil Co. (C.C.A.10), supra; Hirschfeld v. McKinley (C.C.A.9) 78 F.(2d) 124, 129; Winters v. United States, 207 U.S. 564, 575, 28 S.Ct. 207, 52 L.Ed. 340; Marker, Federal Appellate Jurisdiction & Procedure, p. 153, § 126. It is further contended by the appellees that the interlocutory decree of May 2, 1933, was a final adjudication of Martin’s rights to the fund, and that, since he has taken no appeal from that decree, this appeal should be dismissed. The language of the decree of May 2, 1933, is a complete answer to this contention. The court" }, { "docid": "17850690", "title": "", "text": "the question we must decide is whether the court below was required to entertain jurisdiction of the appellants’ petitions. If the court had no jurisdiction or if it was not required to exercise jurisdiction, it is clear that the orders appealed from should be affirmed. The appellants contend that the facts alleged in the petitions entitle them to an equitable lien upon the assets of the bankrupts, and also entitle them to an order vacating the adjudications in bankruptcy, and that the court of bankruptcy has exclusive jurisdiction of the subject-matter. They point out that when the court acquired jurisdiction of the assets of the bankrupts, it had the power to determine controversies in relation to their disposition and to the extent and character of liens thereon or rights therein; citing Whitney v. Wenman. 198 U.S. 539, 25 S.Ct. 778, 49 L.Ed. 1157; Nisbet et al. v. Federal Title & Trust Co. (C.C.A.8) 229 F. 644, 647; In re Hoey et al. (C.C.A.2) 290 F. 116, 119; Central Republic Bank & Trust Co. et al. v. Caldwell et al. (C.C.A.8) 58 F.(2d) 721, 731; Howe & Rogers Co. v. Crittenden et al. (C.C.A.2) 76 F.(2d) 749; Hoffman v. McClelland, 264 U.S. 552, 558, 44 S.Ct. 407, 68 L.Ed. 845. The appellants also contend that the court, even upon application of persons not parties to the bankruptcy proceedings, has the power to vacate an adjudication in bankruptcy in order to protect itself from being used in connection with the perpetration of a fraud; citing Zeitinger et al. v. Hargadine-McKittrick Dry Goods Co. (C.C.A.8) 244 F. 719, 723; Cornwall Press, Inc., v. Ray Long & Richard R. Smith, Inc., et al. (C.C.A.2) 75 F.(2d) 276, 277; McDonough et al. v. Owl Drug Co. et al. (C.C.A.9) 75 F.(2d) 45, 52, 53; In re E. C. Denton Stores Co. (D.C.Ohio) 5 F.Supp. 307; In re Mississippi Valley Utilities Corporation (D.C.Del.) 2 F.Supp. 995; In re Campbell County Hardware Co. (D.C.Tenn.) 15 F.(2d) 78. There appears to be no serious controversy between the parties as to the general rule that a court of bankruptcy" }, { "docid": "23323447", "title": "", "text": "court below of a temporary injunction requiring a stay of further proceedings by the board during the pendency of this suit. The granting or denial of a temporary injunction pending final hearing is within the sound judicial discretion of the trial court, and upon appeal an order granting such an injunction will not be disturbed unless contrary to some rule of equity or the result of an improvident exercise of judicial discretion. Especially will the granting of a temporary writ be upheld when the balance of injury as between the parties favors its issue. Prendergast v. New York Tel. Co., 262 U.S. 43, 50, 43 S. Ct. 466, 67 L.Ed. 853; Meccano, Ltd., v. John Wanamaker, 253 U.S. 136, 141, 40 S. Ct. 463, 64 L.Ed. 822; Love et al. v. Atchison, T. & S. F. Ry. Co. (C.C.A.S) 185 F. 321; Security Metal Products Co. et al. v. Kawneer Co. (C.C.A.S) 14 F.(2d) 569; Special School Dist. v. Speer (C.C.A.8) 75 F. (2d) 420. If the questions presented by a suit for an injunction are grave and difficult and the injury to the moving party will be certain, substantial, and irreparable if the motion for a temporary injunction is denied and the final decision is favorable, while if the motion is granted and the decision is unfavorable the inconvenience and loss to the opposing party will be inconsiderable or he may be protected by a bond, the injunction usually should be granted. City of Newton et al. v. Levis (C.C.A.8) 79 F. 715, 718; Denver & R. G. R. Co. et al. v. United States (C.C.A.8) 124 F. 156, 160; Henry Gas Co. v. United States (C.C.A.8) 191 F. 132; Massie et al. v. Buck (C.C.A.5) 128 F. 27, 31, 32; King Lumber Co. et al. v. Benton et al. (C.C.A.5) 186 F. 458, 459, supra; Love et al. v. Atchison, T. & S. F. Ry. Co. (C.C.A.8) 185 F. 321, 331, supra; Security Metal Products Co. et al. v. Kawneer Co. (C.C.A.8) 14 F.(2d) 569, 575, supra; Ohio Oil Co. v. Conway, 279 U.S. 813, 815, 49 S.Ct." }, { "docid": "13874784", "title": "", "text": "by an application for an interlocutory injunction are grave, and the injury to the moving party will be certain and irreparable, if the application be denied and the final decree be in his favor, while if the injunction be granted the injury to the opposing party, even if the final decree be in his favor, will be inconsiderable, or may be adequately indemnified by a bond, the injunction usually will be granted. Love v. Atchison, Topeka & Santa Fe R. Co. (C.C.A.) 185 F. 321, 331, 332.” In Love v. Atchison, Topeka & Santa Fe R. Co. (C.C.A.) 185 F. 321, 331, cited in the above case, the court again stated the rule in such cases: “An appeal from an order granting or refusing an interlocutory injunction does not invoke the judicial discretion of the appellate court. The question is not whether or not that court in the exercise of its discretion would make or would have made the order. It was to the discretion of the trial court, not to that of the appellate court, that the law intrusted the granting or refusing of these injunctions, and the only question here is: Does the proof clearly establish an abuse of that discretion?” (Italics supplied.) Also see Prendergast et al. v. New York Tel. Co., supra, 262 U.S. 43, at page 51, 43 S.Ct. 466, 67 L.Ed. 853; Meccano, Limited, v. John Wanamaker, 253 U.S. 136, 141, 40 S.Ct. 463, 64 L.Ed. 822; City of Louisville v. Louisville Home Telephone Co. (C.C.A.) 279 F. 949, 957; Florida Public Utilities Co. v. City of West Palm Beach et al. (C.C.A.) 36 F.(2d) 318; and in Rahley v. Columbia Phonograph Co. (C.C.A.) 122 F. 623, 625, the court said: “The appellant sets out 10 assignments of error. They all go to the merits of the controversy, and could very properly be discussed if the case were here after a full hearing. But the question this court at this stage is called upon to decide is whether the court below, having the discretion to grant or refuse the temporary injunction, has in this" }, { "docid": "18164268", "title": "", "text": "suit for an injunction are grave and difficult and the injury to the moving party will be certain, substantial, and irreparable if the motion for a temporary injunction is denied and the final decision is favorable, while if the motion is granted and the decision is unfavorable the inconvenience and loss to the opposing party will be inconsiderable * * *, the injunction usually should be granted.” Pratt v. Stout, 8 Cir., 85 F.2d 172, 176. When the nature of the questions which arise upon a suit make them a proper subject for deliberate examination, and if a stay of proceedings will not result in too great injury to the defendants, it is proper to preserve the existing state of things until the rights of the parties can be fairly and fully investigated and determined. Hadden v. Dooley, 2 Cir., 74 F. 429. Ordinarily, an appellate court, upon an appeal from an order granting or denying a temporary injunction, will not go into the merits of a case further than is necessary to determine whether the trial court exceeded a reasonable discretion in making the order, and this is especially true where the rights of the parties can be better determined upon full proof of the facts. Allen v. Omaha Live Stock Commission Co., 8 Cir., 275 F. 1. See also Benson Hotel Corporation v. Woods, 8 Cir., 168 F.2d 694. On the balance of injury between the parties resulting from issuance of the temporary injunction in this case, it is obvious that if appellee’s allegations in his bill of complaint are true, denial of the injunction would result in substantial and irreparable damage to him, while, on the other hand, the issuance of the temporary injunction would result in inconsiderable damage—if any—to appellants. As to the issuance of the temporary injunction in violation of the Norris-LaGuardia Act, Title 29 U.S.C.A. § 101 et seq., we do not perceive that there was any controversy between the American Federation .of Musicians and appellee involving, or growing out of, a labor dispute, within the meaning of the Act. Title 29 U.S.C.A. §" }, { "docid": "23323450", "title": "", "text": "Products Co. et al. v. Kawneer Co. (C.C.A.8) 14 F.(2d) 569, 575, supra; Special School Dist. v. Speer (C.C.A.8) 75 F.(2d) 420, 422, supra. Ordinarily an appellate court, upon an appeal from an order granting or denying a temporary injunction, will not go into the merits of the case further than is necessary to determine whether the trial court exceeded a reasonable discretion in making the order, and this is especially true where the rights of the parties can only or can better be determined upon full proof of the facts. Allen v. Omaha Live Stock Commission Co. (C.C.A.8) 275 F. 1, supra; Security Metal Products Co. et al. v. Kawneer Co. (C.C.A.8) 14 F.(2d) 569, 575, supra; Special School Dist. v. Speer (C.C.A.8) 75 F.(2d) 420, 422, supra; Blount v. Societe Anonyme du Filtre, etc., (C.C.A.6) 53 F. 98, 102, supra. “A pendente lite injunctional order will not be reversed unless there was an abuse of discretion; and this can only appear from an obvious misunderstanding of the facts or a palpable misapplication of well-settled rules of law on the part of the trial judge.” City of Chicago et al. v. Fox Film Corporation (C.C.A.7) 251 F. 883; Security Metal Products Co. et al. v. Kawneer Co. (C.C.A.8) 14 F.(2d) 569, 576, supra. While “it is settled that the mere fact that a law is unconstitutional does not entitle a party to relief by injunction against proceedings in compliance therewith, but it must appear that he has no adequate remedy by the ordinary processes of the law, or that the case falls under some recognized head of equity jurisdiction” (Cruikshank v. Bidwell, 176 U.S. 73, 80, 20 S.Ct. 280, 283, 44 L.Ed. 377), there is no doubt as to the power of a court of equity to enjoin even criminal proceedings under alleged unconstitutional statutes when essential to the safeguarding of rights of property and when circumstances are exceptional and the danger of irreparable loss is both great and immediate. Sparks v. Mellwood Dairy et al. (C.C.A.6) 74 F.(2d) 695, 697; Stafford v. Wallace, 258 U.S. 495, 512, 42" }, { "docid": "17850697", "title": "", "text": "an adjudication under such circumstances is clearly addressed to the discretion of the court of bankruptcy. McDonough et al. v. Owl Drug Co. et al. (C.C.A.9) 75 F.(2d) 45, 53, certiorari denied McDonough et al. v. Owl Drug Co. et al., 295 U.S. 750, 55 S.Ct. 829, 79 L.Ed. 1694; Banco Commercial De Puerto Rico v. Hunter Benn & Co. (C.C.A.1) 31 F.(2d) 921; Ewing et al. v. Forrester Nace Box Co. et al. (C.C.A.8) 12 F.(2d) 864; In re De Lue (C.C.A.1) 295 F. 130, 132; In re First National Bank of Belle Fourche et al. (C.C.A.8) 152 F. 64, 11 Ann.Cas. 355. Assuming, without deciding, that appellants had a sufficient interest in the proceedings to ask that the adjudications be vacated, we are satisfied that, under the circumstances, the court was guilty of no abuse of discretion in refusing to entertain the petitions in so far as they sought to vacate the adjudications. We are also convinced that the court was not required to assume jurisdiction of the appellants’ controversy with the Chase National Bank and its alleged subsidiaries or affiliates, even though the appellants asserted, in connection therewith, an equitable lien upon assets in the custody of the court of bankruptcy. Whether the petitions showed a right to an equitable lien upon these assets, we think it is unnecessary and inappropriate to decide. Even if the court was required to assume jurisdiction without regard to the interests of the estates in bankruptcy, and for the protection of the appellants, we think it is clear that their petitions not only fail to show any need of protection, but that they affirmatively show that no injury can come to them (appellants) by reason of the administration of the estates. There is no allegation that the Chase National Bank will be unable to account, as trustee, to the appellants for any damages caused by its alleged fraudulent conduct, nor are-there any allegations which would justify an inference that any equitable rights or liens which appellants have will be in any way disturbed by the bankruptcy proceedings. The record shows that" }, { "docid": "14585973", "title": "", "text": "plaintiffs an exception. From the judgment entered upon this finding, the plaintiffs have appealed. The assignments of error charge the court with having made a finding and entered a judgment which is not supported by the evidence. When an action at law is tried to a court without a jury under the provisions of section 773, title 28, U.S.C. (28 U.S.C.A. § 773) and the court makes a general finding, the question of the sufficiency of the evidence to sustain the finding is not subject to review on appeal, where the appellant at no time during the trial, by a request for specific findings of fact or declarations of law, or by motion for judgment in his favor on the ground of the insufficiency of the evidence to sustain a contrary judgment, or by other equivalent action, specifically raises that question in the court below and invokes a ruling thereon. Mansfield Hardwood Lumber Co. v. Horton (C.C.A.8) 32 F.(2d) 851, 852, 853; American Surety Co. of New York v. Cotton Belt Levee Dist. No. 1 of Phillips County, Ark. (C.C.A.8) 58 F.(2d) 234; United States v. Douglas, Buchanan & Crow, Inc., et al. (C.C.A.8) 61 F.(2d) 821; Cronkleton v. Hall (C.C.A.8) 66 F.(2d) 384, 386; Hawthorne v. Bankers’ Life Co. (C.C.A.8) 63 F.(2d) 971; Gerlach v. Chicago, R. I. & P. Ry. Co. (C.C.A.8) 65 F.(2d) 862; Anderson v. United States (C.C.A.8) 65 F.(2d) 870; Town Club of St. Louis v. United States (C.C.A.8) 68 F.(2d) 620; Hussey-Hobbs Tie Co. v. Louisville & N. R. Co. (C.C.A.8) 69 F.(2d) 92; Jones et al. v. Gill et al. (C.C.A.8) 67 F.(2d) 159; Mandel Bros., Inc., v. Henry A. O’Neil, Inc., et al. (C.C.A.8) 69 F.(2d) 452; Baker Ice Mach. Co., Inc., v. Hebert (C.C.A.8) 76 F.(2d) 73, 74, 75; Union Bleachery v. United States (C.C.A.4) 79 F.(2d) 549, 550, 551, 102 A.L.R. 204; Fleischmann Const. Co. v. United States, 270 U.S. 349, 46 S.Ct. 284, 70 L.Ed. 624; Eastman Kodak Co. et al. v. Gray, 292 U.S. 332, 54 S.Ct. 722, 78 L.Ed. 1291; Harvey Co. v. Malley et al., 288" }, { "docid": "23323446", "title": "", "text": "of the evidence upon which the findings of fact were based. We must therefore take the facts to be as the trial court has found them. King Lumber Co. et al. v. Benton et al. (C.C.A.5) 186 F. 458, 549; Carson et al. v. Hurt (C.C.A.5) 250 F. 30; Buessel v. United States (C.C.A.2) 258 F. 811; Oriole Phonograph Co. et al. v. Kansas City Fabric Products Co. et al. (C.C.A.8) 34 F.(2d) 400, 401; A. C. Motor Freight Lines, Inc., v. Shingledecker (C.C.A.7) 70 F.(2d) 827, 828. The result of the trial court’s inquiry into the issues and facts is set forth in the findings and conclusions (see Public Service Commission of Wisconsin et al. v. Wisconsin Telephone Co., 289 U.S. 67, 71, 53 S.Ct. 514, 77 L.Ed. 1036), and such findings are presumptively correct. Stearns-Roger Mfg. Co. v. Brown (C.C.A.8) 114 F. 939, 943. The question with which we are directly concerned on this appeal is not the constitutionality of the National Labor Relations Act, but the propriety of the granting by the court below of a temporary injunction requiring a stay of further proceedings by the board during the pendency of this suit. The granting or denial of a temporary injunction pending final hearing is within the sound judicial discretion of the trial court, and upon appeal an order granting such an injunction will not be disturbed unless contrary to some rule of equity or the result of an improvident exercise of judicial discretion. Especially will the granting of a temporary writ be upheld when the balance of injury as between the parties favors its issue. Prendergast v. New York Tel. Co., 262 U.S. 43, 50, 43 S. Ct. 466, 67 L.Ed. 853; Meccano, Ltd., v. John Wanamaker, 253 U.S. 136, 141, 40 S. Ct. 463, 64 L.Ed. 822; Love et al. v. Atchison, T. & S. F. Ry. Co. (C.C.A.S) 185 F. 321; Security Metal Products Co. et al. v. Kawneer Co. (C.C.A.S) 14 F.(2d) 569; Special School Dist. v. Speer (C.C.A.8) 75 F. (2d) 420. If the questions presented by a suit for an injunction" }, { "docid": "23323448", "title": "", "text": "are grave and difficult and the injury to the moving party will be certain, substantial, and irreparable if the motion for a temporary injunction is denied and the final decision is favorable, while if the motion is granted and the decision is unfavorable the inconvenience and loss to the opposing party will be inconsiderable or he may be protected by a bond, the injunction usually should be granted. City of Newton et al. v. Levis (C.C.A.8) 79 F. 715, 718; Denver & R. G. R. Co. et al. v. United States (C.C.A.8) 124 F. 156, 160; Henry Gas Co. v. United States (C.C.A.8) 191 F. 132; Massie et al. v. Buck (C.C.A.5) 128 F. 27, 31, 32; King Lumber Co. et al. v. Benton et al. (C.C.A.5) 186 F. 458, 459, supra; Love et al. v. Atchison, T. & S. F. Ry. Co. (C.C.A.8) 185 F. 321, 331, supra; Security Metal Products Co. et al. v. Kawneer Co. (C.C.A.8) 14 F.(2d) 569, 575, supra; Ohio Oil Co. v. Conway, 279 U.S. 813, 815, 49 S.Ct. 256, 73 L.Ed. 972. When the nature of the questions which arise upon a suit make them a proper subject for deliberate examination, and if a stay of proceedings will not result in too great injury to the defendants, it is proper to preserve the existing state of things until the rights of the parties can be fairly and fully investigated and determined. Hadden et al. v. Dooley et al. (C.C.A.2) 74 F. 429, 431; Blount v. Societe Anonyme du Filtre, etc. (C.C.A.6) 53 F. 98, 101. Since the granting or withholding of a temporary injunction rests in the sound judicial discretion of the trial court to which the application is made, its order may not be reversed by the appellate courts without clear proof of an abuse of discretion, even though the appellate court, under the same circumstances, would have made a different order. American Grain Separator Co. et al. v. Twin City Separator Co. (C.C.A.8) 202 F. 202, 206; Allen v. Omaha Live Stock Commission Co. (C. C.A.8) 275 F. 1; Security Metal" } ]

[ { "docid": "19120597", "title": "", "text": "SPARKS, Circuit Judge. Plaintiff charged defendants with infringement of United States Patent No. 2,043,960 issued June 9, 1936, to Union Carbide and Carbon Corporation of New York, assignee of the inventors Lloyd Theodore Jones, Harry Edward Kennedy and Maynard Arthur Rotermund of California, who filed the patent application on October 9, 1935. The patent relates both to a process or method of electric welding, and to compositions for use therein. Of the process or' method claims, numbered 1 to 17 inclusive, all were in issue except claim No. 10. Of the composition claims, those numbered 18, 20, 22, 23, 24, 26 and 27 were in issue. ■The defenses were invalidity and non-infringement. The court held valid and infringed composition claims 18, 20, 22 and 23. and invalid, composition claims number ed 24, 26 and 27. It also held all of the process or method claims in issue invalid. From the decree plaintiff, in cause No.9481, has appealed from the rulings adverse to it, and the defendants, in cause No.9482, have appealed from the rulings adverse to them. The specification states with considerable particularity the disclosures of the art at that time, as patentees then understood them. We refer in substance to the specification in order to get a fair disclosure of the problems which then confronted the applicants, and which they sought to solve. The fact that the patent was issued clothes plaintiff with the presumption of its validity. Among the various ways in which electrical energy had been converted into heat for welding metals, the arc process was the one most generally practiced, a typical example of which is its use to join the abutting edges of steel plates. In the metal-arc variation of the arc process, molten metal, provided by the melting of a metal wire or rod of suitable composition, was introduced between the abutting edges of the plates, and the latter were fused sufficiently to permit the added metal to coalesce with the metal of the plates so that, on cooling, a structurally strong bond resulted. The requisite heat was developed by maintaining either a direct" } ]

[ { "docid": "22751663", "title": "", "text": "Mr. Justice Jackson delivered the opinion of the Court. Linde Air Products Co., owner of the Jones patent for an electric welding process and for fluxes to be used therewith, brought an action for infringement against Lincoln and the two Graver companies. The trial court held four flux claims valid and infringed and certain other flux claims and all process claims invalid. 75 U. S. P. Q. 231. The Court of Appeals affirmed findings of validity and infringement as to the four flux claims but reversed the trial court and held valid the process claims and the remaining contested flux claims. 167 F. 2d 531. We granted certiorari, 335 U. S. 810, and reversed the judgment of the Court of Appeals insofar as it reversed that of the trial court, and reinstated the District Court decree. 336 U. S. 271. Rehearing was granted, limited to the question of infringement of the four valid flux claims and to the applicability of the doctrine of equivalents to findings of fact in this case. 337 U. S. 910. At the outset it should be noted that the single issue before us is whether the trial court’s holding that the four flux claims have been infringed will be sustained. Any issue as to the validity of these claims was unanimously determined by the previous decision in this Court and attack on their validity cannot be renewed now by reason of limitation on grant of rehearing. The disclosure, the claims, and the prior art have been adequately described in our former opinion and in the opinions of the courts below. In determining whether an accused device or composition infringes a valid patent, resort must be had in the first instance to the words of the claim. If accused matter falls clearly within the claim, infringement is made out and that is the end of it. But courts have also recognized that to permit imitation of a patented invention which does not copy every literal detail would be to convert the protection of the patent grant into a hollow and useless thing. Such a limitation would" }, { "docid": "1622483", "title": "", "text": "v. Linde Air Products Co., 336 U.S. 271, 276-77, 69 S.Ct. 535, 93 L.Ed. 672 (1949), the Court approved the district court’s decision that composition claims 24 and 26 of U.S. Patent No. 2,043,960 (“the '960 patent”) relating to electric welding were invalid on the ground that they were too broad and comprehended more than the invention. The Court also approved the district court’s decision that composition claims 18, 20, 22, and 23 were valid and infringed. Id. at 275. The Court then granted rehearing to reconsider whether the four valid claims 18, 20, 22, and 23 were infringed and whether the doctrine of equivalents applied. Graver Tank II, 339 U.S. at 606, 70 S.Ct. 854. On rehearing, the Court in an opinion by Justice Jackson held that the doctrine of equivalents did in fact apply, and that claims 18, 20, 22, and 23 were infringed under the doctrine of equivalents: It is difficult to conceive of a case more appropriate for application of the doctrine of equivalents. The disclosures of the prior art made clear that manganese silicate was a useful ingredient in welding compositions. Specialists familiar with the problems of welding compositions understood that manganese was equivalent to and could be substituted for magnesium in the composition of the patented flux and their observations were confirmed by the literature of chemistry. Id. at 612, 70 S.Ct. 854 (emphasis added). Justice Douglas dissented on the ground that the equivalent subject matter had been dedicated to the public: “[The manganese silicate flux] was disclosed in the application and then excluded from the claims. It therefore became public property.” Id. at 618, 70 S.Ct. 854 (Douglas, J., dissenting). See also id. at 617, 70 S.Ct. 854 (Black, J., dissenting). Despite Justice Jackson’s usual elegance and precision of expression, the majority opinion does not respond to either dissent or explain why there had been no dedication to the public as a result of the disclosures in the specification. As a result, we must look to the facts of the case to determine the scope of the Court’s holding in Ch'aver Tank II." }, { "docid": "14165891", "title": "", "text": "’066 patent pertains is one which is relatively crowded and, therefore, the claims are entitled only to a narrow construction. The requirements for determining “literal” infringement were set forth by the court in Huck Manufacturing Co. v. Textron, Inc., 187 USPQ 388, 408 (E.D.Mich.1975), as conclusion of law number 21: When an accused device falls literally within the language of a patent claim and is an equivalent of the patented rivet, the patent has been infringed. Thus, a “literal” infringement requires more than a blind reading of the terms of the claims on the accused structure. It also requires that the accused structure be equivalent to that disclosed in the patent. The Seventh Circuit Court of Appeals is in clear agreement with this two component test. See Mooney v. Brunswick Corp., 663 F.2d 724, 212 USPQ 401 (7th Cir.1981), where the court stated at 212 USPQ 411, that: In order to prove infringement, the plaintiff must demonstrate that defendant engaged in the “unauthorized performance of substantially the same process steps in substantially the same way to accommodate substantially the same result.” International Glass Co. v. United States, 408 F.2d 395, 400, 159 USPQ 434, 438-439 (Ct.Cl.1969). See Tilghman v. Proctor, 102 U.S. 707 [26 L.Ed. 279] (1881). It is not enough that the defendant produce the same result. Infringement occurs only when both the method and the result are substantially the same. See Linde Air Products Co. v. Graver Tank & Manufacturing Co., 167 F.2d 531, 77 USPQ 207 (7th Cir.1948), modified, 336 U.S. 271 [69 S.Ct. 535, 93 L.Ed. 672], 80 USPQ 451 (1949), adhered to on rehearing, 339 U.S. 605 [70 S.Ct. 854, 94 L.Ed. 1097], 85 USPQ 328 (1950). In this quote from Mooney, the court combined the two components of the test, using the accepted test for equivalence, per Graver Tank, supra. Plaintiffs have implied that the standard for determining literal infringement can be defined as follows: In determining whether an accused device or composition infringes a valid patent, resort must be had in the first instance to the words of the claim. If accused matter" }, { "docid": "19025101", "title": "", "text": "D.C., 86 F.Supp. 191. Upon appeal by both parties, this Court affirmed as to claims 18, 20, 22 and 23, but held valid and reversed the District Court as to all process claims and composition claims 24, 26 and 27. 167 F.2d 531. The Supreme Court agreed with Judge Swygert in toto, both as to claims 18, 20, 22 and 23, which he had held valid and infringed, and as to the other composition and process claims which he had held invalid. 336 U.S. 271, 69 S.Ct. 535, 93 L.Ed. 672. The valid composition claims were held infringed by Lincoln in the manufacture and sale of its 660 flux. The Supreme Court, upon petition of Graver, granted a rehearing on the issue of infringement, limited to a consideration of the doctrine of equivalents. 337 U.S. 910, 69 S.Ct. 1046, 93 L.Ed. 1722. The majority of the Court (two Justices dissenting) held that although Lincoln did not utilize the material called for by the claims, the 660 flux infringed by application of that doctrine. 339 U.S. 605, 70 S. Ct. 854, 94 L.Ed. 1097. After the 660 flux was adjudged an infringement by the District Court, Lincoln made and marketed four new fluxes, the 760, 770, 780 and 840 (known as the 700-series fluxes). Union Carbide, on the premise that these new fluxes infringed and, therefore, violated the District Court’s decree, brought an action to have defendants adjudged in contempt. This proceeding was heard by Honorable Charles A. Dewey, D.C., 106 F.Supp. 389, sitting by special assignment. He held that the new fluxes infringed and that defendants were in contempt. This Court, on the basis of the doctrine of “File Wrapper Estoppel,” held that Lincoln’s new fluxes did not infringe and reversed the decision of Judge Dewey. 196 F.2d 103. The Supreme Court denied certiorari, 343 U.S. 967, 72 S.Ct. 1059, 96 L.Ed. 1363, and petition for rehearing, 344 U.S. 849, 73 S.Ct. 6, 97 L.Ed. 660. We approach the issues argued on these appeals with knowledge of the careful and extensive consideration which has been accorded to the parties and" }, { "docid": "22117023", "title": "", "text": "means. In my view, a comparison to the color reference values occurring in the Durand device after the item reaches the weight scale is an equivalent function whether or not its first position indicating means is responsive to a signal from a comparison means, when the accused device is viewed in its entirety and compared to the claimed invention as a whole. To preclude the possibility of finding equivalent functions and therefore preclude finding infringement under the doctrine of equivalents simply because the accused device does not perform its functions in the same order as the claimed invention reduces the doctrine of equivalents, in practical effect, to nothing more than the test for literal infringement. As discussed above, the majority is overruling this court’s recent teachings that require consideration of the claimed invention as a whole when making the doctrine of equivalents analysis. The overruling of our precedents is, of course, permissible since the court sua sponte sits in banc. However, even when sitting in banc, this court can only overrule its own prior decisions, not those of the Supreme Court. I believe that the majority’s opinion departs significantly from the clear teachings of the Supreme Court, specifically those in Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097, 85 USPQ 328 (1950), and, in fact, adopts the position and the spirit of the dissenting opinions rejected in Graver Tank. In Graver Tank, the patent claims at issue involved an electrical welding process containing a combination of an alkaline earth metal silicate and any other silicate. The patented composition actually used silicates of calcium and magnesium, which were both alkaline earth metal silicates. The accused composition used silicates of calcium and manganese, the latter not being an alkaline earth metal. That difference prevented the finding of literal infringement. Nevertheless, the Supreme Court noted that the two compositions used the same mechanical methods, were identical in operation, and produced the same kind and quality of weld. The key issue became whether the substitution of a nonalkaline earth metal (manganese) for the" }, { "docid": "22117024", "title": "", "text": "not those of the Supreme Court. I believe that the majority’s opinion departs significantly from the clear teachings of the Supreme Court, specifically those in Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097, 85 USPQ 328 (1950), and, in fact, adopts the position and the spirit of the dissenting opinions rejected in Graver Tank. In Graver Tank, the patent claims at issue involved an electrical welding process containing a combination of an alkaline earth metal silicate and any other silicate. The patented composition actually used silicates of calcium and magnesium, which were both alkaline earth metal silicates. The accused composition used silicates of calcium and manganese, the latter not being an alkaline earth metal. That difference prevented the finding of literal infringement. Nevertheless, the Supreme Court noted that the two compositions used the same mechanical methods, were identical in operation, and produced the same kind and quality of weld. The key issue became whether the substitution of a nonalkaline earth metal (manganese) for the alkaline earth metal (magnesium) claimed in the patent was, under the circumstances of the case and in view of the prior art and the technology involved, a sufficiently insubstantial change which justified application of the doctrine of equivalents. The Supreme Court concluded, despite the claim language, that the use of manganese was an insubstantial change. In fact, the Court found infringement under the doctrine of equivalents despite several prior art patents which disclosed the use of manganese in welding fluxes, and despite the patent specification itself indicating that the patentee had experimented with using manganese in its fluxes. The current case presents, as did Graver Tank and as does any case involving the doctrine of equivalents, a choice between conflicting policies. On the one hand, there is the historic right of affording the public fair notice of what the patentee regards as his claimed invention in order to allow competitors to avoid actions which infringe the patent and to permit “designing around” the patent. See, e.g., State Indus., Inc. v. A.O. Smith Corp., 751 F.2d" }, { "docid": "22555341", "title": "", "text": "Mr. Justice Jackson delivered the opinion of the Court. Writs of certiorari have been granted, 335 U. S. 810, to review two judgments of the Court of Appeals for the Seventh Circuit involving the same patent. What we shall call the Jones patent was No. 2,043,960, issued to Lloyd Theodore Jones and others, for an electric welding process and for fluxes, or compositions, to be used therewith. The patent is now owned by The Linde Air Products Company, which brought an action for infringement against the Lincoln and two Graver companies. The District Court held four of the flux claims valid and infringed and concluded that the patent owner had not misused the patent so as to forfeit its claims to relief therefor. It held certain other flux claims and all of the process claims invalid. 75 U. S. P. Q. 231. The Court of Appeals affirmed the findings that four flux claims were valid and infringed and that the patent had not been abused, but reversed the trial court and held valid the process claims and the remaining contested flux claims. 167 F. 2d 531. The petitioners contend not only that the Court of Appeals’ judgment should be reversed, but that we should also reverse the District Court’s finding of partial validity and should declare the patent entirely invalid and not infringed. At the trial the electric welding prior art and the nature of the Jones invention were explored at length, and opinions of the two courts below, already in the books, adequately discuss the technology'of that art and the scientific features of the claims involved. We shall confine this opinion to a statement of the legal principles which lead to our decision. I. Flux Claims 18, 20, 22 and 23, Held Valid, and Infringed, By Two Courts Below. Electric welding was an established art before this invention but one with serious limitations which the industry sought to overcome. The known method was slow and laborious and permitted welding of only relatively thin plates. It was of different types, but each had such deficiencies as a dazzling open arc," }, { "docid": "23575624", "title": "", "text": "F.2d 768, 775, 26 USPQ2d 1588, 1593 (Fed.Cir.1993) (doctrine of equivalents should not extend to disclosed, but unexamined, subject matter) (Lourie, J., concurring). This is clearly contrary to 35 U.S.C. § 112, which requires that a patent applicant “particularly point[ ] out and distinctly claim[ ] the subject matter which the applicant regards as his invention.” 35 U.S.C. § 112 (1994). It is also contrary to our system of patent examination, in which a patent is granted following careful examination of that which an applicant claims as her invention. Thus, we agree with J. Baker that subject matter disclosed in the specification, but not claimed, is dedicated to the public. The Supreme Court’s decision in Graver Tank is not to the contrary. In Graver Tank, the Court affirmed a district court’s finding that the defendant infringed composition claims 18, 20, 22, and 23 of U.S. Patent 2,043,960, which claimed a composition for electric welding containing “a major portion of alkaline earth metal silicate.” The accused material contained manganese silicate, which is not an alkaline earth metal silicate. The specification, however, disclosed that manganese silicate, among other silicates, could also be used in the composition, but that the inventors preferred to use alkaline earth metal silicates. The Court affirmed a finding of infringement under the doctrine of equivalents based on the district court’s finding that “for all practical purposes, manganese silicate can be efficiently and effectually substituted for [alkaline earth metal silicates] as the major constituent of the welding composition.” Graver Tank, 339 U.S. at 612, 70 S.Ct. at 858, 85 USPQ at 331. Despite its reliance on the patentee’s disclosure in the specification of the use of manganese in the welding composition to support a finding of infringement under the doctrine of equivalents, the Court in Graver Tank was not confronted with the same factual situation as we are here. As issued, the ’960 patent included broad composition claims drawn to a welding material comprising “metallic silicate and calcium fluoride.” In other words, contrary to the situation here, the patentee in Graver Tank claimed the use of manganese silicate. However," }, { "docid": "1622482", "title": "", "text": "notice of an invention’s scope in the claims. The Patent Act supplies a correction process for applicants who have claimed “more or less than [they] had a right to claim in the patent.” 35 U.S.C. §§ 251, 252 (2001). The doctrine of equivalents need not duplicate the statute’s means of correcting claiming errors. Implicit in the protective function of the doctrine of equivalents is the notion that the patentees could not have protected themselves with reasonable care and foresight. Enforcing this Sage principle more aggressively will help achieve a better balance between the notice function of claims and the protective function of non-textual infringement. DYK, Circuit Judge, with whom LINN, Circuit Judge, joins, concurring. I join the majority opinion, and write separately only to emphasize further why our decision today is entirely consistent with the Supreme Court’s decision in Graver Tank & Manufacturing Co., Inc. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097 (1950) (“Graver Tank II”). In the first Graver Tank decision, Graver Tank & Manufacturing Co., Inc. v. Linde Air Products Co., 336 U.S. 271, 276-77, 69 S.Ct. 535, 93 L.Ed. 672 (1949), the Court approved the district court’s decision that composition claims 24 and 26 of U.S. Patent No. 2,043,960 (“the '960 patent”) relating to electric welding were invalid on the ground that they were too broad and comprehended more than the invention. The Court also approved the district court’s decision that composition claims 18, 20, 22, and 23 were valid and infringed. Id. at 275. The Court then granted rehearing to reconsider whether the four valid claims 18, 20, 22, and 23 were infringed and whether the doctrine of equivalents applied. Graver Tank II, 339 U.S. at 606, 70 S.Ct. 854. On rehearing, the Court in an opinion by Justice Jackson held that the doctrine of equivalents did in fact apply, and that claims 18, 20, 22, and 23 were infringed under the doctrine of equivalents: It is difficult to conceive of a case more appropriate for application of the doctrine of equivalents. The disclosures of the prior art made" }, { "docid": "19025113", "title": "", "text": "alkaline earth metal silicate flux and that the valid claims of the patent in suit encompassed only alkaline earth metal silicate fluxes. Lincoln 660 flux is a manganese silicate flux and is not an alkaline earth metal silicate flux. Counsel’s advice to Lincoln with respect to the invalidity of plaintiff’s asserted monopoly over the submerged arc automatic welding process and with respect to the invalidity of the broad composition claims 24 and 26 was correct and was sustained by the Courts. His advice with respect to the 660 flux proved to be in error by virtue of the Courts applying the doctrine of equivalents and holding the 660 flux did infringe claims 18, 20, 22 and 23 of the patent in suit.” The Master further found: “The defendant Lincoln relied on the opinion of Mr. Oberlin that the plaintiff’s composition claims were either void or not infringed by the Lincoln 660 by virtue of its being a manganese silicate flux and not an alkaline earth metal silicate flux in major proportion as encompassed by the claims that Mr. Oberlin considered to be valid and in so relying on said opinion thought lack of infringement by the Lincoln 660 would most likely be established by virtue of the Lincoln 660 being outside the scope of any valid claims of plaintiff’s patent.” (Italics supplied.) That the issue of infringement was highly doubtful and controversial was also recognized by the Master. He found: “The question of infringement was sufficiently doubtful that the Supreme Court granted a rehearing on that issue, and two justices dissented from the final judgment. Plaintiff ‘ considered the question whether a manganese silicate flux was the equivalent of an alkaline earth metal silicate flux so doubtful that even after the District Court, the Court of Appeals, and the Supreme Court’s first decision had held it was an equivalent, plaintiff nevertheless withheld payment of royalties to the inventors on the Union-melt 50, a manganese silicate flux, until after the second decision of the Supreme Court.” Union Carbide attempts to escape what ordinarily might be expected to follow from Lincoln’s activity" }, { "docid": "19025100", "title": "", "text": "subsequently merged into that corporation, which thereupon became the plaintiff. Lincoln (hereinafter called the defendant) since 1907 has been engaged in the manufacture of electric arc welding equipment and supplies and from the beginning has conducted the defense on behalf of both defendants. Graver has a manufacturing plant at East Chicago, Indiana, where defendant’s 660 flux, the infringing flux, was used for welding operations during the period of infringement. (The patented flux was called Unionmelt; the infringing flux, Lincolnweld.) The litigation has been before one court or another from the time it was commenced in 1945, to the present time. Linde in its original action sued on six teen claims to a process of electric welding and on seven claims to a composition or flux for use in the process. The case was heard by Honorable Luther M. Swygert, who held claims 18, 20, 22 and 23 valid and infringed and composition claims 24, 26 and 27 invalid. He also held all process claims invalid. Linde Air Products Co. v. Graver Tank & Mfg. Co., D.C., 86 F.Supp. 191. Upon appeal by both parties, this Court affirmed as to claims 18, 20, 22 and 23, but held valid and reversed the District Court as to all process claims and composition claims 24, 26 and 27. 167 F.2d 531. The Supreme Court agreed with Judge Swygert in toto, both as to claims 18, 20, 22 and 23, which he had held valid and infringed, and as to the other composition and process claims which he had held invalid. 336 U.S. 271, 69 S.Ct. 535, 93 L.Ed. 672. The valid composition claims were held infringed by Lincoln in the manufacture and sale of its 660 flux. The Supreme Court, upon petition of Graver, granted a rehearing on the issue of infringement, limited to a consideration of the doctrine of equivalents. 337 U.S. 910, 69 S.Ct. 1046, 93 L.Ed. 1722. The majority of the Court (two Justices dissenting) held that although Lincoln did not utilize the material called for by the claims, the 660 flux infringed by application of that doctrine. 339 U.S." }, { "docid": "1622462", "title": "", "text": "Linde Air Prods. Co., 336 U.S. 271, 276-77, 69 S.Ct. 535, 93 L.Ed. 672 (1949) (Graver I). Specifically, the Court found those claims too broad because they encompassed some inoperative silicates along with the nine operative metallic silicates in the specification. Id. at 276, 69 S.Ct. 535. The Court did not hold invalid narrower claims comprising “alkaline earth metals.” Thus, in the infringement action of Graver II, the Supreme Court addressed only the narrower claims comprising “alkaline earth metals.” The alleged infringing compositions in Graver II are similar to the compositions of the narrower claims, except that they substitute silicate of manganese — a metallic silicate such as in the earlier invalidated claims — for silicates of “alkaline earth metals” (e.g., magnesium or calcium) claimed in the narrower claims. Because the Court determined that “under the circumstances the change was so insubstantial,” and because the accused compositions “perform[ed] substantially the same function in substantially the same way to obtain the same result,” the Court upheld the finding of infringement under the doctrine of equivalents. Graver II, 339 U.S. at 608-10, 70 S.Ct. 854 (quoting Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 42, 50 S.Ct. 9, 74 L.Ed. 147 (1929)). The Court’s holding and the history of Graver II show that the patentee had not dedicated unclaimed subject matter to the public. In fact, the patentee had claimed the “equivalent” subject matter, even if the Court eventually held the relevant claims too broad. In 1997, less than a year after this court decided Maxwell, the Supreme Court addressed the doctrine of equivalents again in Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 117 S.Ct. 1040, 137 L.Ed.2d 146. In that case, Warner-Jenkinson invited the Court “to speak the death” of the doctrine of equivalents. Id. at 21, 117 S.Ct. 1040. The Court declined that invitation. In Warner-Jenkinson, the patentee added the phrase “at a pH from approximately 6.0 to 9.0” to claim 1 during prosecution. Id. at 22, 117 S.Ct. 1040. The alleged infringer operated its ultrafil-tration process at a pH of 5.0. Id. at 23, 117 S.Ct." }, { "docid": "19025112", "title": "", "text": "void and that Lincoln’s 660 flux did not infringe any of the remaining claims. Oberlin’s opinion was vindicated by the courts in all respects except that pertain ing to the four claims in suit, which the courts held valid and infringed on the doctrine of equivalents. Even as to these claims his opinion that they were not infringed was agreed to by two dissenting Justices of the Supreme Court. The above sketchy statement as to Lincoln’s relation with its patent counsel and its reliance upon his opinion is fully recognized by the Master in his report. Among other things, he found: “After careful study of the plaintiff's patents and the prior art, counsel advised Lincoln that plaintiff’s asserted patent monopoly over the submerged arc automatic welding process was void, that the broad composition claims 24 and 26 of the patent were void, and that the 660 flux did not infringe the remaining claims of the patent. Counsel expressed the opinion that Lincoln 660 did not infringe the patent in suit because it was not an alkaline earth metal silicate flux and that the valid claims of the patent in suit encompassed only alkaline earth metal silicate fluxes. Lincoln 660 flux is a manganese silicate flux and is not an alkaline earth metal silicate flux. Counsel’s advice to Lincoln with respect to the invalidity of plaintiff’s asserted monopoly over the submerged arc automatic welding process and with respect to the invalidity of the broad composition claims 24 and 26 was correct and was sustained by the Courts. His advice with respect to the 660 flux proved to be in error by virtue of the Courts applying the doctrine of equivalents and holding the 660 flux did infringe claims 18, 20, 22 and 23 of the patent in suit.” The Master further found: “The defendant Lincoln relied on the opinion of Mr. Oberlin that the plaintiff’s composition claims were either void or not infringed by the Lincoln 660 by virtue of its being a manganese silicate flux and not an alkaline earth metal silicate flux in major proportion as encompassed by the" }, { "docid": "22285411", "title": "", "text": "four narrower flux claims and found infringement by application of the doctrine of equivalents. Id. at 199, 75 USPQ at 238. These valid flux claims (claims 18, 20, 22, and 23) specified a combination of ingredients, a major constituent being an alkaline earth metal silicate, such as magnesium silicate. The infringer used a nonalkaline earth metal, namely manganese, in the flux in place of magnesium. The district court first found that the two compositions were identical in operation, in the kind of weld produced, and for all practical purposes manganese silicate could be substituted in the claimed composition. The court then stated: Whether it actually infringes these claims depends upon what application is made of the doctrine of equivalents. Id. at 199, 75 USPQ at 238. To answer that question, the court considered the entirety of the patent and its prosecution. Looking to the specification, the court concluded that manganese was taught as a substituent in the invention and noted that the inventors specifically stated that other suitable materials including manganese could form the main body of the flux. Thus, applying the doctrine, the court entered judgment of infringement. The Court of Appeals affirmed validity and infringement of the narrow claims, 167 F.2d 531, 538-39, 77 USPQ 207, 213 (7th Cir.1948), cert. granted, 335 U.S. 810, 69 S.Ct. 50, 93 L.Ed. 366 (1948), but reversed the judgment of invalidity of the broad claims, holding that they were valid as to the nine listed operative embodiments. Id. at 538, 77 USPQ at 212. In the first Supreme Court decision, Graver Tank Mfg Co. v. Linde Air Prods. Co., 336 U.S. 271, 69 S.Ct. 535, 93 L.Ed. 672 (1949) (Graver I), the Court unanimously upheld the validity and infringement of the narrow claims, two justices separately concurring on the issues of validity. The Court principally focused on the validity of the broad flux claims and held that the Court of Appeals erred in upholding their validity by restricting them to the nine operative embodiments in the specification, instead of evaluating the invention as claimed. Graver I, 336 U.S. at 277, 69 S.Ct." }, { "docid": "1622461", "title": "", "text": "used before he made his invention. But, whether so or not, his own act has made it public property if it was not so before. The patent itself, as soon as it is issued, is the evidence of this. The public has the undoubted right to use, and it is to be presumed does use, what is not specifically claimed in the patent. Id. at 361. The doctrine of equivalents extends the right to exclude beyond the literal scope of the claims. The Supreme Court first applied the modern doctrine of equivalents in Graver Tank & Mfg. Co. v. Linde Air Prods. Co. (Graver II). In that case, the Court explained: “equivalency must be determined against the context of the patent, the prior art, and the particular circumstances of the case.” 339 U.S. 605, 609, 70 S.Ct. 854, 94 L.Ed. 1097 (1950). In Graver I, a predecessor case addressing the validity of the claims at issue, the Court held invalid composition claims 24 and 26 comprising “silicates” and “metallic silicates.” Graver Tank & Mfg. v. Linde Air Prods. Co., 336 U.S. 271, 276-77, 69 S.Ct. 535, 93 L.Ed. 672 (1949) (Graver I). Specifically, the Court found those claims too broad because they encompassed some inoperative silicates along with the nine operative metallic silicates in the specification. Id. at 276, 69 S.Ct. 535. The Court did not hold invalid narrower claims comprising “alkaline earth metals.” Thus, in the infringement action of Graver II, the Supreme Court addressed only the narrower claims comprising “alkaline earth metals.” The alleged infringing compositions in Graver II are similar to the compositions of the narrower claims, except that they substitute silicate of manganese — a metallic silicate such as in the earlier invalidated claims — for silicates of “alkaline earth metals” (e.g., magnesium or calcium) claimed in the narrower claims. Because the Court determined that “under the circumstances the change was so insubstantial,” and because the accused compositions “perform[ed] substantially the same function in substantially the same way to obtain the same result,” the Court upheld the finding of infringement under the doctrine of equivalents. Graver" }, { "docid": "22285410", "title": "", "text": "may be found under that precedent. Clearly not. The majority has taken an errant detour off the map drawn in the Graver II decision. The importance of Graver II lies in the Court’s affirmation that the doctrine “continues today ready and available for utilization when the proper circumstances for its application arise.” Graver II, 339 U.S. at 608, 70 S.Ct. at 856. In the Graver decisions, the Supreme Court reviewed a ease raising issues of the validity and infringement of a patent owned by Linde Air Products Company for an electric welding process and for fluxes to be used therewith. The district court had held certain flux claims and all process claims invalid. Those claims merely required silicates or metallic silicates as the principal constituent of the flux. While nine operative silicates (including manganese) were listed in the specification, the claims were so broad as to include inoperative embodiments and processes. Linde Air Prods. Co. v. Graver Tank & Mfg. Co., 86 F.Supp. 191, 198, 75 USPQ 231, 237-38 (N.D.Ind.1947). However, the district court upheld four narrower flux claims and found infringement by application of the doctrine of equivalents. Id. at 199, 75 USPQ at 238. These valid flux claims (claims 18, 20, 22, and 23) specified a combination of ingredients, a major constituent being an alkaline earth metal silicate, such as magnesium silicate. The infringer used a nonalkaline earth metal, namely manganese, in the flux in place of magnesium. The district court first found that the two compositions were identical in operation, in the kind of weld produced, and for all practical purposes manganese silicate could be substituted in the claimed composition. The court then stated: Whether it actually infringes these claims depends upon what application is made of the doctrine of equivalents. Id. at 199, 75 USPQ at 238. To answer that question, the court considered the entirety of the patent and its prosecution. Looking to the specification, the court concluded that manganese was taught as a substituent in the invention and noted that the inventors specifically stated that other suitable materials including manganese could form the main" }, { "docid": "19025099", "title": "", "text": "MAJOR, Circuit Judge. These appeals are from a final judgment in favor of plaintiff, entered August 26, 1959, after accounting, for infringement of claims 18, 20, 22 and 23 of patent No. 2,043,960 on a welding flux (sometimes referred to as Jones or the patent in suit). Judgment was rendered in the amount of $3,010,077.16, apportioned as follows: Award of damages based on reasonable royalty.. $1,361,891.25 Interest at 6% per annum from June 30, 1950, the date of the last infringement ................ 748,185.91 Additional damages..... 900,000.00 Plaintiff, Union Carbide Corporation (hereinafter referred to as Union Carbide) appeals on the basis that the judgment is grossly inadequate (appeal No. 12797). Defendants, Graver Tank & Mfg. Co., Inc. (hereinafter referred to as Graver) and The Lincoln Electric Company (hereinafter referred to as Lincoln) appeal on the basis that it is excessive (appeal No. 12798). This action was commenced October 1, 1945, by Linde Air Products Company (hereinafter referred to as Linde) against the present defendants. Linde at that time was a subsidiary of Union Carbide and was subsequently merged into that corporation, which thereupon became the plaintiff. Lincoln (hereinafter called the defendant) since 1907 has been engaged in the manufacture of electric arc welding equipment and supplies and from the beginning has conducted the defense on behalf of both defendants. Graver has a manufacturing plant at East Chicago, Indiana, where defendant’s 660 flux, the infringing flux, was used for welding operations during the period of infringement. (The patented flux was called Unionmelt; the infringing flux, Lincolnweld.) The litigation has been before one court or another from the time it was commenced in 1945, to the present time. Linde in its original action sued on six teen claims to a process of electric welding and on seven claims to a composition or flux for use in the process. The case was heard by Honorable Luther M. Swygert, who held claims 18, 20, 22 and 23 valid and infringed and composition claims 24, 26 and 27 invalid. He also held all process claims invalid. Linde Air Products Co. v. Graver Tank & Mfg. Co.," }, { "docid": "19120622", "title": "", "text": "silicates plus the six other metallic silicates listed in the specifications as their equivalents. We think the court should have held valid the process claim 2 and composition claims 24, 26 and 27. The only issues involved in defendants’ appeal are the validity and infringement of composition claims 18, 20, 22 and 23. The latter is typical. Plaintiff’s 'process was quite different from that of the prior art disclosures in that the latter depended on the evolution of more gas to protect the molten metal, while plaintiff’s proceeds on the theory of eliminating all gas forming ingredients. That difference is clearly one of process. True, plaintiff’s process contemplated and depended upon a different composition of flux, and the patent was issued on both process and flux composition, and we think rightly so. There are as many different kinds of flux as there are elements and combinations of elements, and when thus used their results are quite as numerous. Plowever, this patent was not granted upon a result, but it was granted upon a process or method which produced a much desired result, and which was then unknown to the art. Any other process or method which produces the same result would not infringe this process patent, provided it does not use this method or its equivalent, and this would be true regardless of what flux, if any, was used for such purpose. The court found that the patent included a novel welding process in the sense that the electric arc between the electrode and base metal is sheathed by a mantle of welding composition and that the conductive arc area is composed predominantly of vaporous welding composition; that the capabilities of the invention represented an important advance in the welding art; that compositions of calcium, magnesium, strontium and barium, when prepared in accordance with the specification are operative as welding compositions within the teachings of the patent; that these elements are known in chemical literature as alkaline earth metals; that manganese is not an alkaline earth metal; that manganese silicate is one of the nine metallic silicates which the specification" }, { "docid": "14165892", "title": "", "text": "to accommodate substantially the same result.” International Glass Co. v. United States, 408 F.2d 395, 400, 159 USPQ 434, 438-439 (Ct.Cl.1969). See Tilghman v. Proctor, 102 U.S. 707 [26 L.Ed. 279] (1881). It is not enough that the defendant produce the same result. Infringement occurs only when both the method and the result are substantially the same. See Linde Air Products Co. v. Graver Tank & Manufacturing Co., 167 F.2d 531, 77 USPQ 207 (7th Cir.1948), modified, 336 U.S. 271 [69 S.Ct. 535, 93 L.Ed. 672], 80 USPQ 451 (1949), adhered to on rehearing, 339 U.S. 605 [70 S.Ct. 854, 94 L.Ed. 1097], 85 USPQ 328 (1950). In this quote from Mooney, the court combined the two components of the test, using the accepted test for equivalence, per Graver Tank, supra. Plaintiffs have implied that the standard for determining literal infringement can be defined as follows: In determining whether an accused device or composition infringes a valid patent, resort must be had in the first instance to the words of the claim. If accused matter falls clearly within the claim, infringement is made out and that is the end of it. Graver Tank & Mfg. Co., Inc. v. Linde Air Products Co., 339 U.S. 605, 607, 70 S.Ct. 854, 855, 94 L.Ed. 1097 (1950). However, this single quote is very misleading as to what the Graver Tank case stated as to literal infringement and it only reflects part of the actual requirement, which has been stated above. In Westinghouse v. Boyden Power Brake Co., 170 U.S. 537, 18 S.Ct. 707, 42 L.Ed. 1136 (1898), the Supreme Court held, at page 568, 18 S.Ct. at page 722, as follows: The patentee may bring the defendant within the letter of his claims, but if the latter has so far changed the principle of the device that the claims of the patent literally construed, have ceased to represent his actual invention, he is as little subject to be adjudged an infringer as one who has violated the letter of a statute has to be convicted, when he has done nothing in conflict with" }, { "docid": "23575625", "title": "", "text": "metal silicate. The specification, however, disclosed that manganese silicate, among other silicates, could also be used in the composition, but that the inventors preferred to use alkaline earth metal silicates. The Court affirmed a finding of infringement under the doctrine of equivalents based on the district court’s finding that “for all practical purposes, manganese silicate can be efficiently and effectually substituted for [alkaline earth metal silicates] as the major constituent of the welding composition.” Graver Tank, 339 U.S. at 612, 70 S.Ct. at 858, 85 USPQ at 331. Despite its reliance on the patentee’s disclosure in the specification of the use of manganese in the welding composition to support a finding of infringement under the doctrine of equivalents, the Court in Graver Tank was not confronted with the same factual situation as we are here. As issued, the ’960 patent included broad composition claims drawn to a welding material comprising “metallic silicate and calcium fluoride.” In other words, contrary to the situation here, the patentee in Graver Tank claimed the use of manganese silicate. However, the Court affirmed the district court’s decision in which it held these broad claims to be invalid on the ground that many metal silicates embraced by the claims, but not disclosed in the specification, were inoperative. Graver Tank & Mfg. Co. v. Linde Air Prods. Co., 336 U.S. 271, 276-77, 69 S.Ct. 535, 538-39, 93 L.Ed. 672, 80 USPQ 451, 453 (1949). Thus, by filing claims in the patent application that encompassed a welding composition containing metal silicates, including manganese silicates as disclosed in the specification, the patentee could not be said to have dedicated such an embodiment of the invention to the public, even if the broad claims encompassing the embodiment were later held invalid. Here, Maxwell limited her claims to fastening tabs attached between the inner and outer soles. She disclosed in the specification, without claiming them, alternatives in which the fastening tabs could be “stitched into the lining seam of the shoes.” Col. 2, 1. 42. By failing to claim these alternatives, the Patent and Trademark Office was deprived of the opportunity" } ]

[ { "docid": "22629974", "title": "", "text": "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.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948); accord City of Bessemer City, 470 U.S. at 573-74, 105 S.Ct. 1504 (“If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.”). Finally, there is abuse-of-discretion review. This is a second, more complicated, species of deferential appellate review. When a district court is vested with discretion as to a certain matter, it is not required by law to make a particular decision. Rather, the district court is empowered to make a decision — of its choosing — that falls within a range of permissible decisions. A district court “abuses” or “exceeds” the discretion accorded to it when (1) its decision .rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision — though not necessarily the product of a legal error or a clearly erroneous factual finding — -cannot be located within the range of permissible decisions. With these definitions in mind, we turn to Zervos’s argument that there is an exception here to our customary abuse-of-discretion review. In Orvis v. Higgins, 180 F.2d 537 (2d Cir.1950) (Frank, J.), we held that the court of appeals may review without deference — that is de novo — not only a district court’s legal determinations, but its factual determinations as well, provided that such factual determinations are not based on live testimony (“the Orvis rule”). See id. at 539-40. A subsequent generation of cases extended the Orvis rule, holding that when a district court’s decision on a" } ]

[ { "docid": "17366163", "title": "", "text": "The Equal Access to Justice Act (“EAJA”) provides that “a court shall award to a prevailing party ... fees and other expenses ... incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). It is undisputed that Vincent prevailed before the district court and that the position of the United States was not substantially justified. In assessing Vincent’s entitlement to fees, however, the district court concluded that the deficiencies referred to above were “special circumstances” justifying a substantial reduction in the fees awarded. Our review of that decision “is narrow; we will only reverse if we find the court abused its discretion.” United States v. 27.09 Acres of Land, 43 F.3d 769, 772 (2d Cir.1994). A district court abuses its discretion “when (1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision — though not necessarily the product of a legal error or a clearly erroneous factual finding — cannot be located within the range of permissible decisions.” In re Holocaust Victim Assets Litig., 424 F.3d 158, 165 (2d Cir.2005) (quoting Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir.2001)). Vincent argues that the district court abused its discretion in denying the full amount of fees requested in her motion. She contends that Schneider’s representation was not deficient and therefore cannot constitute “special circumstances” rendering a full award unjust. She further argues that the time billed on the fee application was appropriate because a novel issue was raised, and that the district court, by evaluating the billing entries sua sponte, improperly denied Schneider the opportunity to respond to its concerns. The Commissioner responds that the district court acted within its discretion and asks us to affirm. I. The EAJA’s “special circumstances” exception is a “safety" }, { "docid": "16110007", "title": "", "text": "class under Rule 23(b)(3) after concluding that common questions predominate over individual ones and that a class action is superior to other methods of adjudicating the matter. We review a district court’s decision to certify a class for abuse of discretion. Joel A. v. Giuliani, 218 F.3d 132, 139 (2d Cir.2000). A district court “ ‘abuses’ or ‘exceeds’ its discretion when (1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision — though not necessarily the product of a legal error or a clearly erroneous factual finding — cannot be located within the range of permissible decisions.” In re Holocaust Victim Assets Litig., 424 F.3d 158, 165 (2d Cir.2005) (quoting Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir.2001)). When a court is asked to certify a class and approve its settlement in one proceeding, the Rule 23(a) requirements designed to protect absent class members “demand undiluted, even heightened, attention.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Objectors argue that the Settlement contravenes Rule 23(a)(4) because the named plaintiffs failed to adequately represent the interests of class members who hold only Category C claims (“Category C-only plaintiffs”). “The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem, 521 U.S. at 625, 117 S.Ct. 2231. To satisfy Rule 23(a)(4), the named plaintiffs must “possess the same interests] and suffer the same injuries] as the class members.” Id. at 625-26, 117 S.Ct. 2231 (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977)) (internal quotation marks omitted). “Adequacy is twofold: the proposed class representative must have an interest in vigorously pursuing the claims of the class, and must have no interests antagonistic to the interests of other class members.” Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir.2006). Not every conflict among subgroups of a class will prevent class" }, { "docid": "3913071", "title": "", "text": "six weeks after [the Court] had decided that the insurance releases were unenforceable. Fourth, Mr. Dubbin stood by as his client attempted to extort a significant cash award from a fund belonging to Holocaust survivors in exchange for not filing a notice of appeal from [the Court’s] judgment approving the fairness of the settlement. And fifth, Mr. Dubbin filed that notice of appeal. For this, he initially sought $600,000, and now seeks $309,051 in fees plus $41,318 in disbursements. Id. at 375. The District Court found these contributions “worthless,” and denied Dubbin’s fee request. Id. at 382. Dubbin now appeals from this decision. Discussion Under the “common fund doctrine,” a party that secured “a fund for the benefit of others, in addition to himself, may recover his costs, including his attorney’s fees, from the fund itself or directly from the other parties enjoying the benefit.” Savoie v. Merchants Bank, 84 F.3d 52, 56 (2d Cir.1996). The actions of the party seeking to recover costs must, however, be “a substantial cause of the benefit obtained.” Id. at 57. Dubbin agrees, as he must, that “a material benefit to the class is the sine qua non for an attorney’s entitlement to an award of fees from the common fund.” Appellant’s Br. at 30. The District Court concluded that Dubbin’s contributions failed to offer any material benefit to the class. We agree. We review the District Court’s denial of attorney’s fees for an abuse of discretion. Goldberger v. Integrated Res., Inc., 209 F.3d 43, 47-48 (2d Cir.2000). “A district court ‘abuses’ or ‘exceeds’ the discretion accorded to it when (1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision — though not necessarily the product of a legal error or a clearly erroneous factual finding — cannot be located within the range of permissible decisions.” Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir.2001) (footnotes omitted). It merits underscoring that “ ‘abuse of discretion’ — already one of the most deferential standards of review—" }, { "docid": "12045429", "title": "", "text": "motion to dismiss, the district court concluded that Kickham had stated a claim under the common fund doctrine. Because Kickham was not a party to the Plan, the district court found inapposite Defendants-Appellants’ argument that the Plan’s terms precluded Kickham’s action. As for Defendants-Appellants’ claim that awarding relief to Kickham would violate the anti-alienation provisions of ERISA, 29 U.S.C. § 1056(d)(1), and the Internal Revenue Code, 26 U.S.C. § 401(a)(13), the district court ruled these provisions inapplicable because it found “no clear statutory intent to proscribe fee awards from ERISA-related common funds,” nor any cases dealing with such fee awards that showed any concern over the prohibitions on alienation of benefits. Kickham Hanley P.C. v. Kodak Ret. Income Plan, 574 F.Supp.2d 314, 319 (W.D.N.Y.2008). Finally, the district court rejected Defendants-Appellants’ argument that Kickham lacked standing and failed to exhaust administrative remedies, observing that Kickham based its claim on the common fund doctrine, not on ERISA. On August 29, 2008, Defendants-Appellants filed an interlocutory appeal from the district court’s decision to grant a preliminary injunction to Kickham. Discussion This Court reviews a district court’s decision to grant a preliminary injunction for abuse of discretion, which occurs “when (1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision— though not necessarily the product of a legal error or a clearly erroneous factual finding — cannot be located within the range of permissible decisions.” Vincenty v. Bloomberg, 476 F.3d 74, 83 (2d Cir.2007) (internal quotation marks omitted) (quoting Mastrovincenzo v. City of New York, 435 F.3d 78, 88 (2d Cir.2006)). To obtain a preliminary injunction, the moving party must demonstrate “(1) a likelihood of irreparable harm in the absence of the injunction; and (2) either a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation, with a balance of hardships tipping decidedly in the movant’s favor.” Doninger v. Niehoff, 527 F.3d 41, 47 (2d Cir.2008). With respect to Kickham’s showing of irreparable injury," }, { "docid": "23137479", "title": "", "text": "$461,031.21. This appeal followed. DISCUSSION We review a district court’s award of attorney’s fees for abuse of discretion, Goldberger v. Integrated Res., Inc., 209 F.3d 43, 47-48 (2d Cir.2000), “which occurs ‘when (1) [the court’s] decision rests on an error of law (such as application of the wrong legal principle) or clearly erroneous factual finding, or (2) its decision — -though not necessarily the product of a legal error or a clearly erroneous factual finding— cannot be located within the range of permissible decisions.’ ” Kickham Hanley P.C. v. Kodak Ret. Income Plan, 558 F.3d 204, 209 (2d Cir.2009) (quoting Vincenty v. Bloomberg, 476 F.3d 74, 83 (2d Cir.2007)). “ ‘[A]buse of discretion’ — already one of the most deferential standards of review— takes on special significance when reviewing fee decisions” because “ ‘the district court, which is intimately familiar with the nuances of the case, is in a far better position to make [such] decisions than is an appellate court, which must work from a cold record.’ ” Goldberger, 209 F.3d at 47-48 (quoting In re Bolar Pharm. Co. Sec. Litig., 966 F.2d 731, 732 (2d Cir.1992) (per curiam)). In challenging the district court’s attorneys’ fee determinations, Appellants make several arguments. First, they contend that the district court committed legal error by failing to calculate attorneys’ fees using the percentage method, suggesting “[t]he percentage method is the presumptive, preferred method” in this Circuit. Appellants’ Br. at 9. Second, Appellants suggest that the district court improperly relied on Arbor Hill to justify its decision not to use the percentage method, since that ease and others cited by the court involved statutory fee shifting rather than a common fund. Third, they assert that, whether or not the district court was within its discretion in employing a modified-lodestar method to calculate attorneys’ fees, it committed errors in its application of the Goldberger factors, including the use of an unprecedented factor to penalize counsel for their experience in litigating similar cases. We consider each of these arguments in turn. I. The District Court’s Decision Not to Employ a Percentage-of-Fund Method Appellants contend that" }, { "docid": "16110006", "title": "", "text": "such electronic distribution. Trial of this case would thus determine the rights of third parties to obtain sublicenses. We therefore conclude that the Settlement’s release pertaining to future uses by publishers and their sublicensees was permissible. II. Adequacy of Representation The party seeking to certify a class bears the burden of satisfying Rule 23(a)’s four threshold requirements: (1) numerosity (“the class is so numerous that joinder of all members is impracticable”), (2) commonality (“there are questions of law or fact common to the class”), (3) typicality (“the claims or defenses of the representative parties are typical of the claims or defenses of the class”), and (4) adequacy of representation (“the representative parties will fairly and adequately protect the interests of the class”). Fed.R.Civ.P. 23(a). The district court must also find that the action can be maintained under Rule 23(b)(1), (2), or (3). Before approving a class action settlement, the district court must assess its substance and conclude that it is “fair, reasonable, and adequate.” Fed.R.Civ.P. 23(e)(2). The district court did so here, approving a settlement-only class under Rule 23(b)(3) after concluding that common questions predominate over individual ones and that a class action is superior to other methods of adjudicating the matter. We review a district court’s decision to certify a class for abuse of discretion. Joel A. v. Giuliani, 218 F.3d 132, 139 (2d Cir.2000). A district court “ ‘abuses’ or ‘exceeds’ its discretion when (1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision — though not necessarily the product of a legal error or a clearly erroneous factual finding — cannot be located within the range of permissible decisions.” In re Holocaust Victim Assets Litig., 424 F.3d 158, 165 (2d Cir.2005) (quoting Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir.2001)). When a court is asked to certify a class and approve its settlement in one proceeding, the Rule 23(a) requirements designed to protect absent class members “demand undiluted, even heightened, attention.” Amchem Prods., Inc. v. Windsor, 521" }, { "docid": "20408785", "title": "", "text": "Cir.2006) (“Provided that the district court has applied the proper legal standards in deciding whether to certify a class, its decision may only be overturned if it constitutes an abuse of discretion.” (internal quotation marks omitted)). We have stated that “the abuse-of-diseretion standard has regularly been applied in reviewing a district judge’s conclusions with respect to individual requirements of Rule 23 both by this Court and by other Circuits.” Id. at 32 (internal citations omitted) (collecting cases). An appellate court, however, is “noticeably less deferential ... when [the district] court has denied class status than when it has certified a class.” Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir.1999) (internal quotation marks omitted), oven-uled on other grounds by In re IPO Secs. Litig., 471 F.3d at 40. “A district court vested with discretion to decide a certain matter is empowered to make a decision — of its choosing — that falls within a range of permissible decisions.” Parker v. Time Warner Entm’t Co., L.P., 331 F.3d 13, 18 (2d Cir.2003) (emphasis in original; internal quotation marks omitted). “A district court ‘abuses’ or ‘exceeds’ the discretion accorded to it when (1) its decision rests on an error of law ... or a clearly erroneous factual finding, or (2) its decision — though not necessarily the product of a legal error or a clearly erroneous factual finding— cannot be located within the range of permissible decisions.” Id. (quoting Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 168-69 (2d Cir.2001) (footnotes omitted; omission in original)). In contrast, de novo review is “review without deference,” id., and is “traditionally associated with appellate assessments of a district court’s legal conclusions.” Id. “With these principles in mind, the standard of review applicable to class certification decisions can be succinctly summarized as follows: We review class certification rulings for abuse of discretion. We review de novo the district court’s conclusions of law that informed its decision to deny class certification.’ ” Id. (quoting Turner v. Beneficial Corp., 242 F.3d 1023, 1025 (11th Cir.2001)). Rule 23(a) provides that (a) One or more members of a" }, { "docid": "2571564", "title": "", "text": "the Swiss Banks); the “Slave Labor I” class (those who performed slave labor for German corporations whose profits were deposited with the Swiss Banks); the “Slave Labor II” class (those who performed slave labor for Swiss corporations); and the “Refugee” class (those who claim to have been denied entry into, expelled from, or mistreated while in Switzerland during the relevant time period). After the settlement was approved by the district court as fair and reasonable, the district court appointed Special Master Judah Gribetz, Esq., to develop a plan to allocate and distribute the settlement proceeds. Appellants’ objections to the resulting plan, as approved in the November 22, 2000 order, has prompted these appeals. The district court has broad supervisory powers with respect to the administration and allocation of settlement funds, see Beecher v. Able, 575 F.2d 1010, 1016 (2d Cir.1978), and we “will disturb the scheme adopted by the district court only upon a showing of an abuse of discretion,” In re “Agent Orange” Prod. Litig., 818 F.2d 179, 181 (2d Cir.1987). Appellant Friedman has objected to the appointment of the Conference on Jewish Material Claims Against Germany, Inc. (the “Claims Conference”) as one of the organizations that will process claims and distribute funds under the settlement. Friedman, who disagrees with the policies and mission statements of the Claims Conference, asserts that the Claims Conference is not suited to the task and that the district court failed to carefully consider the selection of the Claims Conference or to explore other organizations that might have been used instead. We find no error in the district court’s decision. The Claims Conference was chosen because of its lengthy experience with similar programs and because it had already been chosen to process claims and distribute funds under the related German Foundation “Remembrance, Responsibili ty, and the Future” settlement (the “German Foundation”), which shares many class members with the present litigation. The efficacy of having one organization process the claims of individuals entitled to recover from both programs cannot be gainsaid. Friedman argues that the district court might just as easily have chosen the International" }, { "docid": "23137478", "title": "", "text": "be irrelevant where an attorney was from, it would be what the prevailing rate is for attorneys in this area. That’s the aspect of Arbor Hill that I’m dispensing with when I say that’s no longer the standard of what constitutes a reasonable attorney’s fee. That is as substantial an explanation why some of the fees as calculated in the fee schedule submitted by class counsel, they would have exceeded that traditional rate in the Northern District of New York. I’ve not discounted them as a result of that. That’s the impetus of the Arbor Hill decision. Oral Decision at 26-27. On November 5, 2007, the district court issued a final decision and order approving the settlement and explicitly incorporating the content of its oral decision, including the award of attorneys’ fees. The court slightly increased the total amount to be paid to counsel, granting attorneys’ fees in the amount of $343,744.50, reimbursement of litigation expenses in the amount of $10,053.31, and administrative expenses in the amount of $107,233.40, resulting in a final award of $461,031.21. This appeal followed. DISCUSSION We review a district court’s award of attorney’s fees for abuse of discretion, Goldberger v. Integrated Res., Inc., 209 F.3d 43, 47-48 (2d Cir.2000), “which occurs ‘when (1) [the court’s] decision rests on an error of law (such as application of the wrong legal principle) or clearly erroneous factual finding, or (2) its decision — -though not necessarily the product of a legal error or a clearly erroneous factual finding— cannot be located within the range of permissible decisions.’ ” Kickham Hanley P.C. v. Kodak Ret. Income Plan, 558 F.3d 204, 209 (2d Cir.2009) (quoting Vincenty v. Bloomberg, 476 F.3d 74, 83 (2d Cir.2007)). “ ‘[A]buse of discretion’ — already one of the most deferential standards of review— takes on special significance when reviewing fee decisions” because “ ‘the district court, which is intimately familiar with the nuances of the case, is in a far better position to make [such] decisions than is an appellate court, which must work from a cold record.’ ” Goldberger, 209 F.3d at 47-48 (quoting" }, { "docid": "17366164", "title": "", "text": "of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision — though not necessarily the product of a legal error or a clearly erroneous factual finding — cannot be located within the range of permissible decisions.” In re Holocaust Victim Assets Litig., 424 F.3d 158, 165 (2d Cir.2005) (quoting Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir.2001)). Vincent argues that the district court abused its discretion in denying the full amount of fees requested in her motion. She contends that Schneider’s representation was not deficient and therefore cannot constitute “special circumstances” rendering a full award unjust. She further argues that the time billed on the fee application was appropriate because a novel issue was raised, and that the district court, by evaluating the billing entries sua sponte, improperly denied Schneider the opportunity to respond to its concerns. The Commissioner responds that the district court acted within its discretion and asks us to affirm. I. The EAJA’s “special circumstances” exception is a “safety valve” that gives “the court discretion to deny awards where equitable considerations dictate an award should not be made.” Scarborough v. Principi, 541 U.S. 401, 422-23, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004) (quoting H.R.Rep. No. 96-1418, at 11 (1980); 1980 U.S.C.C.A.N. 4984, at 4990). The contours of that safety valve are indistinct. The Second Circuit has spoken only twice in published opinions to the question of what constitutes “special circumstances [that] make an award unjust,” and in neither case did it address whether — or to what extent — deficiencies in counsel’s performance may justify a denial or reduction in EAJA fees. See Oguachuba v. INS, 706 F.2d 93 (2d Cir.1983); United States v. 27.09 Acres of Land, 43 F.3d 769 (2d Cir. 1994). With those decisions as our baseline, we must decide whether the district court abused its discretion in applying the “special circumstances” exception in this case. In Oguachuba, we affirmed the district court’s denial of attorney’s fees under the EAJA where the petitioner’s own conceded history of repeated and flagrant misconduct" }, { "docid": "23547264", "title": "", "text": "v. Able, 575 F.2d 1010, 1016 (2d Cir.1978). In reviewing allocations of class settlements, therefore, we will disturb the scheme adopted by the district court only upon a showing of an abuse of discretion. In the present case, a relatively modest settlement fund must be allocated equitably among a large and diverse group of claimants. There are 240,000 claimants dispersed throughout the United States, Australia, and New Zealand. They suffer from an immense variety of ailments and have different medical and financial needs. Having pursued a number of often inconsistent goals in this litigation, they are as sharply divided over the distribution of the settlement fund as they are over its adequacy. The PMC seeks what it regards as a conventional scheme for “tort-based” recovery by individuals; Mr. Yannacone’s clients want the fund devoted largely to establishing a foundation; the district court adopted a compensation based scheme to distribute the bulk of the fund with the remainder to be used to establish a foundation. See P. Schuck, Agent Orange on Trial 211-13, 220 (1986). The district court was not bound to choose among only those plans offered by class members who spoke out. Rather, it had to “exercise its independent judgment to protect the interests of class absentees, regardless of their apparent indifference,” In re Traffic Executive Association—Eastern Railroads, 627 F.2d 631, 634 (2d Cir.1980), as well as to protect the interests of more vocal members of the class. The district judge therefore had discretion to adopt whatever distribution plan he determined to be in the best interests of the class as a whole notwithstanding the objections of class counsel, see, e.g., Distribution Opinion, 611 F.Supp. at 1409 (criticizing distribution plan proposed by PMC on ground that “too great a share of the fund would go to lawyers and medical experts”); Plummer v. Chemical Bank, 668 F.2d 654, 659 (2d Cir.1982) (district courts cannot rely solely on “the arguments and recommendations of counsel” in evaluating propriety of class settlements), or of a large number of class members. See TBK Partners, Ltd. v. Western Union Corp., 675 F.2d 456, 462 (2d" }, { "docid": "2080797", "title": "", "text": "valid proof receive a $5 payout. Young does not object to the 20% figure or argue that the first two categories of claimants will be undercompensated. Instead, he asserts that the cy pres award is inappropriate because the third category of claimants — those receiving a $5 payout regardless of price of the product they purchased — will not be fully compensated for their losses. We review a district court’s decision to approve a settlement for abuse of discretion. Girsh, 521 F.2d at 156 & n. 7. “ ‘An appellate court may find an abuse of discretion where the district court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.’ ” In re Prudential, 148 F.3d at 299 (quoting In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 783 (3d Cir.1995)). Mindful that we are dealing with a settlement, we remain hesitant to undo an agreement that has resolved a hard-fought, multi-year litigation. See In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 535 (3d Cir.2004). “Because class actions are rife with potential conflicts of interest between class counsel and class members,” however, “district judges presiding over such actions are expected to give careful scrutiny to the terms of proposed settlement in order to make sure that class counsel are behaving as honest fiduciaries for the class as a whole.” Mirfasihi, 356 F.3d at 785 (collecting cases); see also In re Gen. Motors, 55 F.3d at 785. We vacate the District Court’s orders approving the settlement and the fund allocation plan because it did not have the factual basis necessary to determine whether the settlement was fair to the entire class. Most importantly, it did not know the amount of compensation that will be distributed directly to the class. Removing attorneys’ fees and expenses, approximately $21,500,000 (less costs of administration) of the settlement were designated for the class, but only around $3,000,000 of that amount actually will be distributed to class members, with the remainder going to cy pres recipients after" }, { "docid": "1569718", "title": "", "text": "Court were to find that the bond is a maritime contract, Sureties could not prevail. Sureties have not demonstrated that they have actually paid out any claims, nor that the claims against the BRB[II] exceed the $3.7 million collateral provided by Premier. Id. at *4 n. 4. II. DISCUSSION In their briefs and at oral argument, the parties focused primarily on the question of whether the FMC Bond is a maritime contract, and whether a maritime lien may attach as a result of payments made under such a bond. However, in the present case it is not necessary to reach — and therefore we do not decide — those issues, because nowhere in the motion to intervene, or in any of Sureties’ subsequent filings and communications with the district court up until the time the district court denied the motion, did Sureties ever allege that they had paid any claims under the FMC Bond. Therefore, it was within the district court’s discretion to decide whether or not to exercise jurisdiction over Sureties’ claims, and the district court decided not to exercise jurisdiction. Sureties contend that, to the extent that the district court relied upon the prematurity of Sureties’ claims as the basis for the court’s denial of the motion to intervene, that reliance was error. We disagree and, accordingly, affirm the district court’s order. A. Standard of Review This Court reviews “a District Court’s denial of a motion to intervene, whether as of right or by permission, for abuse of discretion.” In re Holocaust Victim Assets Litigation, 225 F.3d 191, 197 (2d Cir.2000). “A district court abuses its discretion when (1) its decision rests on an error of law ... or a clearly erroneous factual finding, or (2) its decision — though not necessarily the product of a legal error or a clearly erroneous factual finding— cannot be located within the range of permissible decisions.” In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir.2003) (per curiam) (internal quotation marks omitted). B. General Principles In order to intervene in the action against BRBII, Sureties had to establish that they had" }, { "docid": "3913072", "title": "", "text": "at 57. Dubbin agrees, as he must, that “a material benefit to the class is the sine qua non for an attorney’s entitlement to an award of fees from the common fund.” Appellant’s Br. at 30. The District Court concluded that Dubbin’s contributions failed to offer any material benefit to the class. We agree. We review the District Court’s denial of attorney’s fees for an abuse of discretion. Goldberger v. Integrated Res., Inc., 209 F.3d 43, 47-48 (2d Cir.2000). “A district court ‘abuses’ or ‘exceeds’ the discretion accorded to it when (1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision — though not necessarily the product of a legal error or a clearly erroneous factual finding — cannot be located within the range of permissible decisions.” Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir.2001) (footnotes omitted). It merits underscoring that “ ‘abuse of discretion’ — already one of the most deferential standards of review— takes on special significance when reviewing fee decisions.” Goldberger, 209 F.3d at 47. “[T]he district court, which is intimately familiar with the nuances of the case, is in a far better position to make [such] decisions than is an appellate court, which must work from a cold record.” In re Bolar Pharm. Co. Sec. Litig., 966 F.2d 731, 732 (2d Cir.1992). Upon careful review of the record of this case, we conclude that the District Court acted well within its discretion in finding (1) that the renegotiation of the Swiss insurance company releases was initiated well before Dubbin submitted his formal objection on January 31, 2000; (2) that the decision to renegotiate these releases was triggered by the Senn and Ea-gleburger objections, rather than by Weiss’s November 24, 1999 letter or by Dubbin’s November 29, 1999 statement at the fairness hearing; and (3) that, in any event, “the amendment to the Settlement Agreement as it related to insurance companies did not embody alterations urged by Mr. Dubbin.” In re Holocaust Victim Assets Litig., 311 F.Supp.2d" }, { "docid": "23547263", "title": "", "text": "that remained to be taken by the district court. Id. at 515, 70 S.Ct. at 325. In contrast, the plaintiffs here continued to have an active interest in the litigation after the May 28 decision. Second, the Court recognized in Dickinson that the case had arisen before the adoption of Rule 54(b), a provision with the “obvious purpose” of “reducpng] as far as possible the uncertainty and the hazard assumed by a litigant who either does or does not appeal from a judgment of the character we have here.” Id. at 512, 70 S.Ct. at 324. The Court therefore expressly refused to “try to lay down rules to embrace any case but this.” Id. Accordingly, we conclude that the PMC’s appeal from the district court’s distribution plan was timely filed. We therefore need not consider the PMC’s petition for a writ of mandamus, which raises the same issues. 2. General Principles District courts enjoy “broad supervisory powers over the administration of class-action settlements to allocate the proceeds among the claiming class members ... equitably.” Beecher v. Able, 575 F.2d 1010, 1016 (2d Cir.1978). In reviewing allocations of class settlements, therefore, we will disturb the scheme adopted by the district court only upon a showing of an abuse of discretion. In the present case, a relatively modest settlement fund must be allocated equitably among a large and diverse group of claimants. There are 240,000 claimants dispersed throughout the United States, Australia, and New Zealand. They suffer from an immense variety of ailments and have different medical and financial needs. Having pursued a number of often inconsistent goals in this litigation, they are as sharply divided over the distribution of the settlement fund as they are over its adequacy. The PMC seeks what it regards as a conventional scheme for “tort-based” recovery by individuals; Mr. Yannacone’s clients want the fund devoted largely to establishing a foundation; the district court adopted a compensation based scheme to distribute the bulk of the fund with the remainder to be used to establish a foundation. See P. Schuck, Agent Orange on Trial 211-13, 220 (1986). The" }, { "docid": "12045430", "title": "", "text": "Kickham. Discussion This Court reviews a district court’s decision to grant a preliminary injunction for abuse of discretion, which occurs “when (1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision— though not necessarily the product of a legal error or a clearly erroneous factual finding — cannot be located within the range of permissible decisions.” Vincenty v. Bloomberg, 476 F.3d 74, 83 (2d Cir.2007) (internal quotation marks omitted) (quoting Mastrovincenzo v. City of New York, 435 F.3d 78, 88 (2d Cir.2006)). To obtain a preliminary injunction, the moving party must demonstrate “(1) a likelihood of irreparable harm in the absence of the injunction; and (2) either a likelihood of success on the merits or sufficiently serious questions going to the merits to make them a fair ground for litigation, with a balance of hardships tipping decidedly in the movant’s favor.” Doninger v. Niehoff, 527 F.3d 41, 47 (2d Cir.2008). With respect to Kickham’s showing of irreparable injury, this Court has recognized in a non-ERISA context that forcing counsel to attempt to collect its fee from hundreds of trust customers individually “is so impractical as to be infeasible, and constitutes irreparable harm.” Savoie v. Merchants Bank, 84 F.3d 52, 58 (2d Cir.1996). Defendants-Appellants do not appear to challenge the district court’s reliance on Sa-voie to find that Kickham demonstrated irreparable injury; nor do they attack the district court’s determination that the balance of hardships tipped in Kickham’s favor. The primary issue this Court must decide, therefore, is whether Kickham’s common fund claim to the vested pension benefits at issue presented sufficiently serious questions going to the merits such that the district court did not abuse its discretion in granting the preliminary injunction. We conclude that Kickham cannot successfully lay claim to vested but undistributed benefits and, therefore, that the preliminary injunction should not have issued. Kickham correctly acknowledges that the district court could not award attorney’s fees under ERISA’s fee-shifting provision, 29 U.S.C. § 1132(g)(1), because that provision permits recovery “only for fees" }, { "docid": "16768347", "title": "", "text": "Civil Procedure,” the government demonstrated substantial need for the information contained in the recordings and that the recordings were unique evidence that could not be obtained through other means. The court also determined that Appellant failed to show that the recordings would reveal his attorney’s mental impressions or litigation strategies, noting that Appellant had not submitted the recordings for in camera review. As a result, the court held that the recordings were not entitled to the heightened protection afforded opinion work product. This appeal followed. Discussion I. Work Product The attorney work product doctrine “provides qualified protection for materials prepared by or at the behest of counsel in anticipation of litigation or for trial.” In re Grand Jury Subpoenas Dated Mar. 19, 2002 & Aug. 2, 2002, 318 F.3d 379, 383 (2d Cir.2003). The party invoking the privilege bears the heavy burden of establishing its applicability. Id. at 384. This Court reviews the district court’s ruling on a work product claim for abuse of discretion. See, e.g., Horn & Hardart Co. v. Pillsbury Co., 888 F.2d 8, 12 (2d Cir.1989). A district court abuses its discretion “when (1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision— though not necessarily the product of a legal error or a clearly erroneous factual finding — cannot be located within the range of permissible decisions.” Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir.2001) (footnote omitted); see United States v. Adlman, 68 F.3d 1495, 1502 (2d Cir.1995) (remanding case where district court applied incorrect legal standard to work product claim). A. The Recordings are Fact Work Product There are two types of work product, ordinary or fact (herein “fact”) and opinion. As we have stated previously, fact work product may encompass factual material, including the result of a factual investigation. See In re Grand Jury Subpoena Dated Oct. 22, 2001, 282 F.3d 156, 161 (2d Cir.2002). In contrast, opinion work product reveals the “mental impressions, conclusions, opinions, or legal theories of an attorney or" }, { "docid": "2080796", "title": "", "text": "settlement structure that attempts to maintain an appropriate balance between payments to the class and cy pres awards. For instance, it could condition approval of a settlement on the inclusion of a mechanism for additional payouts to individual class members if the number of claimants turns out to be insufficient to deplete a significant portion of the total settlement fund. Turning to the particular cy pres distribution in this case, Young asserts that the District Court failed to fulfill its oversight responsibility by approving a class action settlement containing a cy pres provision that permits the distribution of funds to a third party without first fully compensating all claimants. As noted above, the settlement directs a cy pres award after claimants receive cash distributions via a three-tiered compensation structure: claimants with valid documentary proof of purchase and purchase price receive up to three times 20% of the actual price of the product they purchased; claimants with valid documentary proof of purchase receive up to three times 20% of the estimated price; and claimants without any valid proof receive a $5 payout. Young does not object to the 20% figure or argue that the first two categories of claimants will be undercompensated. Instead, he asserts that the cy pres award is inappropriate because the third category of claimants — those receiving a $5 payout regardless of price of the product they purchased — will not be fully compensated for their losses. We review a district court’s decision to approve a settlement for abuse of discretion. Girsh, 521 F.2d at 156 & n. 7. “ ‘An appellate court may find an abuse of discretion where the district court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.’ ” In re Prudential, 148 F.3d at 299 (quoting In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 783 (3d Cir.1995)). Mindful that we are dealing with a settlement, we remain hesitant to undo an agreement that has resolved a hard-fought, multi-year litigation. See In re" }, { "docid": "1569719", "title": "", "text": "district court decided not to exercise jurisdiction. Sureties contend that, to the extent that the district court relied upon the prematurity of Sureties’ claims as the basis for the court’s denial of the motion to intervene, that reliance was error. We disagree and, accordingly, affirm the district court’s order. A. Standard of Review This Court reviews “a District Court’s denial of a motion to intervene, whether as of right or by permission, for abuse of discretion.” In re Holocaust Victim Assets Litigation, 225 F.3d 191, 197 (2d Cir.2000). “A district court abuses its discretion when (1) its decision rests on an error of law ... or a clearly erroneous factual finding, or (2) its decision — though not necessarily the product of a legal error or a clearly erroneous factual finding— cannot be located within the range of permissible decisions.” In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir.2003) (per curiam) (internal quotation marks omitted). B. General Principles In order to intervene in the action against BRBII, Sureties had to establish that they had the right to enforce a maritime lien against the vessel. See Local Admiralty Rule for the Southern District of New York E.2 (“When a vessel ... has been arrested, attached or garnished, and is in the hands of the marshal ... anyone having a claim against the vessel ... is required to present the claim by filing an intervening complaint” that meets the requirements of FRCP 24); Admiralty Rule C (“An action in rem may be brought ... to enforce a maritime lien.”). Under FRCP 24(a), in order to intervene as of right in an action, “the applicant must: (1) file a timely motion; (2) show an interest in the litigation; (3) show that its interest may be impaired by the disposition of the action; and (4) show that its interest is not adequately protected by the parties to the action.” In re Holocaust Victim Assets Litigation, 225 F.3d at 197. As we explained in Itel Containers International Corp. v. Atlanttrafik Express Service Ltd., 982 F.2d 765 (2d Cir.1992): A maritime lien is: “a special" }, { "docid": "2571563", "title": "", "text": "PER CURIAM. Plaintiffs-appellants Abraham Friedman, Eliazar Bloshteyn, and Sofiya Blosh-teyn, are members of a class action brought against various Swiss banking institutions and entities (the “Swiss Banks”) to obtain redress for their various actions in profiting from the Holocaust. They appeal from the November 22, 2000, order of the United States District Court for the Eastern District of New York (Edward R. Korman, Chief Judge) approving the Special Master’s plan to allocate $1.25 billion in funds that have been obtained through an extensive settlement agreement that was entered into by the parties and approved by the district court. Members of the class' — -who are by definition Jewish and non-Jewish persons that either were victims or targets of Nazi persecution or performed slave labor for Swiss corporations and their heirs — were allocated to one or more subclasses: the “Deposited Assets” class (those who claim ownership of deposit accounts withheld by the Swiss Banks after, the War); the “Looted Assets” class (those who claim their property was looted by Nazis, and then disposed of through the Swiss Banks); the “Slave Labor I” class (those who performed slave labor for German corporations whose profits were deposited with the Swiss Banks); the “Slave Labor II” class (those who performed slave labor for Swiss corporations); and the “Refugee” class (those who claim to have been denied entry into, expelled from, or mistreated while in Switzerland during the relevant time period). After the settlement was approved by the district court as fair and reasonable, the district court appointed Special Master Judah Gribetz, Esq., to develop a plan to allocate and distribute the settlement proceeds. Appellants’ objections to the resulting plan, as approved in the November 22, 2000 order, has prompted these appeals. The district court has broad supervisory powers with respect to the administration and allocation of settlement funds, see Beecher v. Able, 575 F.2d 1010, 1016 (2d Cir.1978), and we “will disturb the scheme adopted by the district court only upon a showing of an abuse of discretion,” In re “Agent Orange” Prod. Litig., 818 F.2d 179, 181 (2d Cir.1987). Appellant Friedman has" } ]

[ { "docid": "17847197", "title": "", "text": "individual treatment versus class impact cases.) Of the seven managers during Ward’s tenure, three were family member owners. While there was undisputed evidence of sex bias on the part of one of them, Jim Forsman, Ward was evaluated and discharged by Gus Forsman, for whom there was no such evidence. In addition, Gus testified that Jim’s sexist remark concerning Ward had no influence on the firing decision and in fact had annoyed Gus. On these facts, the court was not compelled to find for Ward or to make an independent assessment of her abilities, as Ward now suggests the court should have done. III. Statistical Evidence. Ward contends that the judge erroneously criticized both the relevance and value of her statistical evidence. Again, we disagree. While the Supreme Court has recognized the existence of a role for statistics in disparate treatment cases, for example, in a plaintiff’s attempt to establish pretext, McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 805, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973), it has cautioned against giving controlling influence to statistics. Id. at n. 19. Regardless of how devastating and reliable the statistics may look, the issue remains in these cases whether a particular isolated historical event was discriminatory. An individual’s discharge may be justified despite overall statistics suggesting discriminatory policies. See, e. g., Bolton v. Murray Envelope Corp., 493 F.2d 191 (5th Cir. 1974); Peters v. Jefferson Chemical Co., 516 F.2d 447 (5th Cir. 1975). Thus, some cautionary remarks are not inappropriate in these cases. Caution may have been even more necessary here because Ward’s statistical proof in the management sector was based on an unreliably small sample. See Morita v. Southern California Permanente Medical Group, 541 F.2d 217, 219-20 (9th Cir. 1976), cert. denied, 429 U.S. 1050, 97 S.Ct. 761, 50 L.Ed.2d 765 (1977); White v. City of San Diego, 605 F.2d 455, 459-61 (9th Cir. 1979). IV. Expert Testimony. Ward assigns as reversible error the district court’s refusal to permit her expert in discrimination and affirmative action to testify that in his opinion Westland discriminated against Ward on account of her sex." } ]

[ { "docid": "133007", "title": "", "text": "was designated as assistant director. For approximately one year after those appointments were made, Grubb continued to manage the laundry at Foote West, assisted by Mrs. Fountain as laundry supervisor, but Grubb was now required to report to Carl and follow his instructions. In or about February 1977, Carl presented a proposed 1977-78 budget to his superi- or, Associate Hospital Administrator Harold Petke, in which he recommended elimination of the assistant director post (held by Grubb) and retention of the supervisor position (held by Mrs. Fountain) when the two laundries were physically consolidated into one facility at Foote East in the summer of 1977. When Petke (who had served as Grubb’s immediate supervisor at Mercy Hospital) asked Carl about his reasons for abolishing Grubb’s position, Carl replied that Mrs. Fountain was more cooperative, had longer years of laundry experience, and worked better with “the women” (the laundry workers) than Grubb, and that he needed a working supervisor who would be willing to “pitch in” occasionally and help with the laundering work. Carl told Petke that there “wasn’t a place” for Grubb. (App. at 58). According to the trial testimony of Petke and the Hospital’s personnel director, Gerald Culhane, Carl was given no objective criteria on which to base his decision regarding which supervisory position to eliminate in the consolidation process. Although Culhane “assumed” that Carl applied Hospital’s usual layoff practice — considering the affected employees’ relative performance, potential and length of service — both Carl and Petke testified that they were unaware of any particular layoff policy, and Carl never considered placing Grubb in the supervisor job. Apparently Carl was given near-plenary authority over his department’s budget, and his proposal was ratified as a matter of course by his superiors in Hospital’s administration. During the transition year from Carl’s appointment as overall laundry director until the laundries were finally consolidated, there was apparent friction between Carl and Grubb. According to Grubb’s later testimony, Carl began to deal directly with Mrs. Fountain (a white woman), and allegedly told Grubb that the supervisor would thenceforth report directly to him (Carl) since “[n]o" }, { "docid": "13888192", "title": "", "text": "or whatever you want, but you’re through.” This evidence, which was not rebutted, at the least suggests an animus toward Mr. Grubb. Other credited evidence establishes that the basis for this animus was Mr. Grubb’s race and/or age. Mr. Grubb’s testimony establishes that Mr. Carl directed him to fire three employees in the laundry that Mr. Carl believed were union activists and that, when Mr. Grubb took no action with regard to this direction, Mr. Carl asked him when he “was going to fire them niggers.” It is also undisputed that Mr. Carl directed Ms. Fountain to report to him rather than to Mr. Grubb. I credit Mr. Grubb’s testimony that Mr. Carl’s expressed reason for this alteration in line of authority was explained to Plaintiff in the following words: “A black man has no place supervising white women.” Finally, I specifically credit Mr. Grubb’s testimony that Mr. Carl told him he was “too old and set in his ways” and that he ought to retire. I do not find, however, that the actions of either Mr. Culhane or Mr. Pelke in acquiescing in Mr. Carl’s determination were prompted by discriminatory motives. The deposition evidence of William Jewell, a former employee of Defendant, to the effect that Mr. Culhane made racially discriminatory remarks, was not persuasive. These findings of fact support the conclusion that Defendant Foote permitted discriminatory employment practices. Procedures which rested almost entirely on subjective evaluation and favorable recommendations of an immediate supervisor not'only had a discriminatory impact on a minority employee but permitted the situation, which the Court finds obtained here, intentional discrimination on the part of an individual employee. See Long v. Ford Motor Co., 496 F.2d 500, 506 (6th Cir. 1974); Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972). Defendant contends that Plaintiff has failed to sustain the burden of proof and that Defendant had a valid economic reason for elimination of the position. See Mt. Healthy City School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); King v. Laborers Local 818, 443 F.2d 273 (6th Cir." }, { "docid": "133035", "title": "", "text": "ge bias. Telling Grubb that he was “old and set in his ways,” in the context of a dispute over which kind of sheet to use on the hospital beds, appears to reflect Carl’s recognition that Grubb was stubborn ju insisting that his way to manage the laundry (including the type of bed sheet to purchase) was the correct way. Also, the remarks about retirement were, according to Grubb’s own testimony, connected with his increasingly frequent absences from work due to health problems. If Carl were otherwise disposed to eliminate Grubb’s position, he might well have tried to persuade him to retire and thus avoid a confrontation when the position was abolished in the new budget. It appears (as in the claim of race discrimination) that some of Carl’s actions— particularly his handling of the actual termination — evidence a personal hostility toward Grubb himself, not prejudice against a black man or a man in his sixties. He may have perceived Mr. Grubb as a rival for authority in the laundry, or perhaps as an obstacle to his plans for the laundry, but “[pjersonality conflicts alone cannot supply a basis for an ADEA claim.” Ackerman, 670 F.2d at 70. Even Grubb recognized, as a past administrator, that reductions in the labor force provide an opportunity to eliminate those employees “that might cause you the most trouble.” (App. at 326). A subjective judgment to discharge an employee can be made for any nondiscriminatory reason, Ackerman, supra, and that reason “need not meet the unqualified approval of the judge or jury,” Douglas v. Andersen, 656 F.2d at 534. Therefore, we uphold Judge Boyle’s denial of Grubb’s age discrimination claim. V. Finally, we come to Grubb’s pendent claim asserting that Hospital’s failure to observe its alleged layoff policies with respect to his termination constituted a breach of implied contract under Michigan law. The District Court entered judgment for Hospital on this claim, and we affirm. A. Although Judge Boyle permitted Grubb to amend his complaint at trial in order to add the breach of contract claim, she ultimately declined to extend the doctrine" }, { "docid": "133016", "title": "", "text": "more likely motivation, or by showing that the articulated reason is unworthy of belief. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095; Fields v. Bolger, 723 F.2d 1216, 1219 (6th Cir.1984). This allocation of the respective burdens may also be applied in the adjudication of race discrimination claims arising under 42 U.S.C. § 1981, Long v. Ford Motor Co., 496 F.2d 500, 505 n. 11 (6th Cir. 1974), and Michigan’s Elliott-Larsen Act, Michigan Civil Rights Commission ex rel. Boyd v. Chrysler Corp., 80 Mich.App. 368, 375 n. 4, 263 N.W.2d 376, 380 n. 4 (1977); see generally Department of Civil Rights ex rel. Parks v. General Motors Corp., 93 Mich.App. 366, 375, 287 N.W.2d 240, 244 (1979) (“Federal law provides a good general source for interpreting state civil rights legislation because of the great number of decided cases.”), aff'd, 412 Mich. 610, 317 N.W.2d 16 (1982). However, the essential factual inquiry in such a case is still “ ‘whether the defendant intentionally discriminated against the plaintiff’ ” U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983) (quoting Burdine, 450 U.S. at 253, 101 S.Ctat 1093). The findings of the trial court on this issue are subject to review only under the “clearly erroneous” standard of Civil Rule 52(a). See Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). B. In the case before us, it appears that the parties met their respective burdens under the first two steps of the McDonnell Douglas/Burdine analysis. Grubb proved: (1) that he was black; (2) that he was qualified for retention in Hospital’s employ as either an assistant laundry director or a laundry supervisor; (3) that he was not so retained despite his qualifications; and (4) that Hospital instead retained as laundry supervisor a white person whose general qualifications were no greater than Grubb’s. Hospital, on the other hand, introduced testimony by Willard Carl and Harold Petke which explained the decision to retain Mrs. Fountain, rather than Grubb, as being motivated by Carl’s need for a working supervisor, not" }, { "docid": "133009", "title": "", "text": "black guy should be a boss over white women.” (App. at 303). On another occasion, Carl apparently ordered Grubb to fire three minority (two black, one Hispanic) laundry employees before the Foote West laundry became unionized (the Foote East laundry had been unionized before the merger). According to Grubb, when he failed to follow that instruction, Carl said, “When are you going to fire those niggers?” (App. at 298). At trial, Carl testified and denied making such racist remarks, and both Mrs. Fountain and Lurlene Osborne (one of the black women whom Carl wanted to fire) testified that they never heard Carl use racial epithets or saw him discriminate against minority employees. Although Mrs. Osborne acknowledged that Grubb had warned her about Carl’s wish to fire the women, she said he did not tell her why. Up through the date of his termination, Grubb never reported these alleged racist remarks to anyone in Hospital’s administration. Grubb also testified that, on several occasions, Carl made comments about Grubb’s allegedly poor health, suggesting it was time for him to retire. And on one occasion when the two men disagreed over the type of bed sheet to use, Carl allegedly remarked, “Well, I know you are old and set in your ways.” (App. at 301). At that time, Grubb was 60 or 61 years old. From February 1977 until July 1977, rumors began to spread that Grubb’s position would be eliminated. These rumors reached him through subordinates and fellow employees. Although Carl informed Mrs. Fountain, as early as April of that year, that she would be retained at the new facility (and, at least by implication, that Grubb would not), he never formally advised Grubb about his intentions, nor could he explain at trial why he did not do so. Grubb, not having been told anything officially, and having been told by administrator Petke that Carl would have to have documented reasons for firing him, decided to wait and see what happened. Finally, in July 1977, Grubb finished overseeing the transfer and disposition of the equipment from the laundry at Foote West, and" }, { "docid": "133023", "title": "", "text": "or to the acquisition of Mercy Hospital by Foote Memorial (and even after the acquisition but before Carl’s appointment as overall director), Grubb and Carl each held essentially equivalent positions in their respective hospital laundries. In particular, each of them took care of the managerial and administrative aspects of the laundry operations (preparing budgets, ordering supplies, setting work standards, hiring and firing laundry workers). At Mercy (and later Foote West), Rosella Fountain acted as a direct supervisor of the day-today work in the laundry, observing the employees’ job performance, setting work schedules, and generally seeing that the laundry work was actually done (even performing such work herself, when necessary). Since Carl did not have a supervisor under him at Foote East, he presumably did some of those things himself, but his appointment as laundry director for the combined hospitals clearly established him in the administrative role. Although the transitional situation of two separate laundries, on two opposite sides of town, reasonably required the presence of a second manager at Foote West (since Carl could not be at two places at once), the consolidation of the laundry facilities at Foote East in 1977 eliminated the need for an additional administrator. However, it was likely that the size of the combined laundry would necessitate the employment of an “on-line” supervisor, under Mr. Carl, who could directly oversee the laundry employees on a continuous basis. Such a role was already being performed by Mrs. Fountain, and had been for some 13 years. Therefore, she was a logical choice for retention when one of the two lower supervisory employees in the laundry had to be eliminated in the consolidation. Grubb, and the District Court, make much of the “subjective” nature of the criteria used by Carl in reaching his decision on which position to eliminate. Besides the fact that subjectivity of evaluation is not a per se indicator of discrimination, we note that Carl’s criteria were not wholly subjective. It was an objective fact that Grubb and Carl had performed the same function at the two hospitals, and that only one person would be" }, { "docid": "17376431", "title": "", "text": "her failure to note items of work missed by marking the windshield of the unit. The fact that plaintiff is a woman had nothing to do with the decision to terminate her employment. Harris does not directly challenge these findings, conceding that she failed to prove intentional discriminatory treatment based on sex. Rather, Harris maintains that she established a prima facie case of discrimination under a disparate impact theory and that Ford failed to rebut that case. That theory, however, does not apply to the facts of this case. To establish a prima facie case under the Griggs theory of disparate impact, an employee must, as a threshold matter, point to a facially-neutral employment practice or criteria that operates in a discriminatory manner. Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971). Harris does not argue that such a neutral practice exists. Instead, she alleges that Ford’s subjective decisions in determining discharges for “poor workmanship” impacts disproportionately* on women. Nonobjective evaluation systems may be probative of intentional discrimination, especially when discriminatory patterns result, because such systems operate to conceal actual bias in decisionmaking. See Satz v. ITT Financial Corp., 619 F.2d 738, 746 (8th Cir. 1980); Rowe v. General Motors Corp., 457 F.2d 348, 359 (5th Cir. 1972). A subjective decision-making system, however, is not the type of practice outlawed under Griggs and cannot alone form the foundation for a discriminatory impact case. See Taylor v. Teletype Corp., 648 F.2d 1129, 1132 n.6 (8th Cir. 1981). We agree with the district court that no basis exists for concluding that Ford fired Harris in violation of Title VII. Accordingly, we affirm. . The Honorable Scott O. Wright, United States District Judge for the Western District of Missouri. . Because we hold that no predicate for an impact case exists, we need not consider the district court’s finding that the statistical sample was too small to establish discrimination." }, { "docid": "1677872", "title": "", "text": "this court in Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir. 1975), Muller v. United States Steel Corp., 509 F.2d 923 (10th Cir. 1975); and Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972). Frequently these general policies involve subjective standards under the guise of which discrimination can more easily be practiced. See, for example, Robinson v. Union Carbide Corp., 538 F.2d 652 (5th Cir. 1976). Proof of a disparate impact gives rise to a prima facie case of employment discrimination upon a showing that the practices operate to exclude members of a protected group. Griggs v. Duke Power Co., supra; Furnco Construction Corp. v. Waters, supra. Statistical evidence will often be sufficient to establish the disparate impact. Albemarle, supra. The burden then shifts to the employer to show that its practice is “job related.” Plaintiff’s allegations of discrimination generally do not fall within the categories of cases to which disparate impact analysis is applicable. There has not been an allegation that the company systematically followed a practice or procedure for hiring safety managers which is discriminatory in effect, nor does the evidence show that any such standard policy existed. In any event, discriminatory impact cannot be established where you have just one isolated decision. A claim of discrimination resulting from the mode of filling a single position does not give rise to a disparate impact. While Yellow Freight’s general method of transferring employees to other shifts or of determining admittance to the management training program may, arguably at least, be a standard practice which may be analyzed under a disparate impact theory, it is clear that failure to appoint plaintiff to the position of safety manager does not fall within this category of cases. Did the Refusal of Yellow Freight to Grant the Plaintiff a Position Within the Company at Night So That He Could Go to Law School Constitute Disparate Impact? The difficulty with this contention is that there was no position available on the night shift for which plaintiff was qualified at the time in question. Where the disparate impact doctrine has been" }, { "docid": "133024", "title": "", "text": "be at two places at once), the consolidation of the laundry facilities at Foote East in 1977 eliminated the need for an additional administrator. However, it was likely that the size of the combined laundry would necessitate the employment of an “on-line” supervisor, under Mr. Carl, who could directly oversee the laundry employees on a continuous basis. Such a role was already being performed by Mrs. Fountain, and had been for some 13 years. Therefore, she was a logical choice for retention when one of the two lower supervisory employees in the laundry had to be eliminated in the consolidation. Grubb, and the District Court, make much of the “subjective” nature of the criteria used by Carl in reaching his decision on which position to eliminate. Besides the fact that subjectivity of evaluation is not a per se indicator of discrimination, we note that Carl’s criteria were not wholly subjective. It was an objective fact that Grubb and Carl had performed the same function at the two hospitals, and that only one person would be needed to perform that function at the combined facility. It was also an objective fact that Rosella Fountain was already working as the kind of supervisor Carl would still need in the laundry. To the extent that he also considered Mrs. Fountain to be more “cooperative” and better able “to work with the women” than Grubb, he was employing subjective judgment. But that subjectivity, without substantial proof of racial bias in its exercise, does not constitute unlawful discrimination. It is also contended that Carl’s alleged criteria were a sham because they were not applied to Grubb. This argument ignores the fact that Carl was not required to choose whether to retain Mr. Grubb or Mrs. Fountain in the same type of position, but rather whether to retain an assistant laundry director or a laundry supervisor. Carl’s standards were applied to Grubb, in the sense that it was determined that he was performing duties that Carl himself could perform in the consolidated facility, and thus the assistant director position would be superfluous. And to hold that" }, { "docid": "133008", "title": "", "text": "there “wasn’t a place” for Grubb. (App. at 58). According to the trial testimony of Petke and the Hospital’s personnel director, Gerald Culhane, Carl was given no objective criteria on which to base his decision regarding which supervisory position to eliminate in the consolidation process. Although Culhane “assumed” that Carl applied Hospital’s usual layoff practice — considering the affected employees’ relative performance, potential and length of service — both Carl and Petke testified that they were unaware of any particular layoff policy, and Carl never considered placing Grubb in the supervisor job. Apparently Carl was given near-plenary authority over his department’s budget, and his proposal was ratified as a matter of course by his superiors in Hospital’s administration. During the transition year from Carl’s appointment as overall laundry director until the laundries were finally consolidated, there was apparent friction between Carl and Grubb. According to Grubb’s later testimony, Carl began to deal directly with Mrs. Fountain (a white woman), and allegedly told Grubb that the supervisor would thenceforth report directly to him (Carl) since “[n]o black guy should be a boss over white women.” (App. at 303). On another occasion, Carl apparently ordered Grubb to fire three minority (two black, one Hispanic) laundry employees before the Foote West laundry became unionized (the Foote East laundry had been unionized before the merger). According to Grubb, when he failed to follow that instruction, Carl said, “When are you going to fire those niggers?” (App. at 298). At trial, Carl testified and denied making such racist remarks, and both Mrs. Fountain and Lurlene Osborne (one of the black women whom Carl wanted to fire) testified that they never heard Carl use racial epithets or saw him discriminate against minority employees. Although Mrs. Osborne acknowledged that Grubb had warned her about Carl’s wish to fire the women, she said he did not tell her why. Up through the date of his termination, Grubb never reported these alleged racist remarks to anyone in Hospital’s administration. Grubb also testified that, on several occasions, Carl made comments about Grubb’s allegedly poor health, suggesting it was time for" }, { "docid": "133019", "title": "", "text": "reasons: (1) it gives considera bly greater weight to Grubb’s testimony than was due; and (2) it has the effect of changing the nature of Hospital’s burden under Burdine. As pointed out by Judge Martin of this Court in the recent case of Brooks v. Ashtabula County Welfare Department, 717 F.2d 263, 267 (6th Cir.1983), the district court in a Title VII disparate treatment case cannot require the defendant to persuade the court that the legitimate reason articulated by said defendant actually motivated the employment decision at issue. It is the plaintiffs burden to persuade the court “that the asserted reason is pretextual.” Fields, 723 F.2d at 1219. But the effect of the District Court opinion in this case was to require proof (presumably by the defendant Hospital) that the decision to eliminate Grubb’s job “would have been reached” regardless of any racism on Carl’s part. Although Grubb testified that Carl had exhibited racial bias on at least two occasions, there is no other evidence in the record of racial bigotry on his part, or that of any other Hospital official. The evaluation of Grubb’s work made by Mr. Carl in early 1977 (App. at 628-29) does not evidence any propensity by Carl to act according to his alleged racial bias, even though the subjective nature of such an evaluation would give him an opportunity to do so. A comparison of that evaluation with those made by Harold Petke when he was Grubb's immediate superior at Mercy Hospital (App. at 630-88) fails to show any significant change in how Grubb’s job performance was viewed. Judge Boyle specifically found no evidence of discriminatory motives in either Petke or Culhane, the two other administrators most directly involved in Grubb’s termination. Both Mrs. Fountain and Ms. Osborne, with whom Grubb acknowledged being on friendly terms, could recall no incidence of discrimination by Carl, and Ms. Osborne (whom Carl allegedly wanted to fire, and referred to as a “nigger”) stated that she and Carl were friendly and would occasionally visit each other’s homes. Furthermore, Grubb never complained about Carl’s alleged racism to anyone in" }, { "docid": "133017", "title": "", "text": "Aikens, 460 U.S. 711, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983) (quoting Burdine, 450 U.S. at 253, 101 S.Ctat 1093). The findings of the trial court on this issue are subject to review only under the “clearly erroneous” standard of Civil Rule 52(a). See Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982). B. In the case before us, it appears that the parties met their respective burdens under the first two steps of the McDonnell Douglas/Burdine analysis. Grubb proved: (1) that he was black; (2) that he was qualified for retention in Hospital’s employ as either an assistant laundry director or a laundry supervisor; (3) that he was not so retained despite his qualifications; and (4) that Hospital instead retained as laundry supervisor a white person whose general qualifications were no greater than Grubb’s. Hospital, on the other hand, introduced testimony by Willard Carl and Harold Petke which explained the decision to retain Mrs. Fountain, rather than Grubb, as being motivated by Carl’s need for a working supervisor, not another manager, and by a view that Mrs. Fountain had performed that role well for many years and should logically be retained therein. Therefore, the judgment of the District Court had to rest on whether or not Grubb carried “the ultimate burden of persuading the court that [h]e has been the victim of intentional discrimination.” Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. “In short, the district court [had to] decide which party’s explanation of the employer’s motivation it believe[d].” Aiken, 103 S.Ct. at 1482. As noted above, Judge Boyle found that Carl’s actions evidenced animus against Grubb, and that Grubb's testimony about alleged racist comments by Carl established the unlawful nature of that animus. She further concluded, without further weighing of the evidence, that “while Defendant may have had a valid economic reason for the elimination of a supervisory position in the laundry, it does not follow that the decision to terminate Mr. Grubb would have been reached despite Mr. Carl’s unlawful animus.” 533 F.Supp. at 675. This conclusion is defective for two" }, { "docid": "133006", "title": "", "text": "both hospitals, with a view toward eliminating redundancy and effecting cost savings. A committee was formed in December 1975 to study and make recommendations to Hospital’s administration regarding consolidation of the laundries at the two facilities. Among the members of the committee were Grubb and Willard Carl (then aged 34 or 35), the manager of the laundry at Foote Memorial since 1973. The committee’s final report recommended that the two laundries be consolidated at one location, and that only one laundry manager and one assistant manager be retained. The supervisor position held by Mrs. Fountain (there had been no comparable position at Foote Memorial) was to be abolished upon consolidation. However, between September 1975 and March 1976, the two laundries continued to function as before — entirely separately under the direction of their respective managers. No action was taken to eliminate Mrs. Fountain’s position. There is no indication that the committee report was ever acted upon by Hospital administration; however, in March 1976, Mr. Carl was appointed Director of Laundry for both facilities, and Grubb was designated as assistant director. For approximately one year after those appointments were made, Grubb continued to manage the laundry at Foote West, assisted by Mrs. Fountain as laundry supervisor, but Grubb was now required to report to Carl and follow his instructions. In or about February 1977, Carl presented a proposed 1977-78 budget to his superi- or, Associate Hospital Administrator Harold Petke, in which he recommended elimination of the assistant director post (held by Grubb) and retention of the supervisor position (held by Mrs. Fountain) when the two laundries were physically consolidated into one facility at Foote East in the summer of 1977. When Petke (who had served as Grubb’s immediate supervisor at Mercy Hospital) asked Carl about his reasons for abolishing Grubb’s position, Carl replied that Mrs. Fountain was more cooperative, had longer years of laundry experience, and worked better with “the women” (the laundry workers) than Grubb, and that he needed a working supervisor who would be willing to “pitch in” occasionally and help with the laundering work. Carl told Petke that" }, { "docid": "133049", "title": "", "text": "Carl’s testimony (App. at 230-38) at trial are admittedly imprecise, but they essentially boiled down to a determination that Mrs. Fountain’s experience in directly supervising the laundry workers, and in scheduling their work hours and daily activities, was needed more in the consolidated laundry than Grubb’s experience in overall management of a laundry facility, a task Carl considered himself capable of doing. . Brooks, 717 F.2d at 267-68; Ward v. West-land Plastics, Inc., 651 F.2d 1266, 1270 (9th Cir.1980); Roman v. ESB, Inc., 550 F.2d 1343, 1354 (4th Cir.1976); Rich v. Martin Marietta Corp., 522 F.2d 333, 338-39 (10th Cir.1975). Although Judge Boyle cites Long v. Ford Motor Co., 496 F.2d 500, 506 (6th Cir.1974), and Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.1972), it should be noted that Rowe (cited in support of the dicta in Long) dealt with allegations of disparate impact on minorities by a facially neutral policy, not a case of alleged disparate treatment due to intentional discrimination. Although subjective evaluations may give greater leeway to personal bias, they do not have the importance in disparate treatment cases (like this one) that they have in disparate impact cases where subjectivity can provide the crucial link between employment statistics unfavorable to minorities and a showing that those statistics reflect unlawful discrimination. Ward, 651 F.2d at 1270 n. 1. . See note 9, supra. . See part III(B) of this opinion, supra. . This conclusion is reinforced by the fact that the court only dealt with this claim in a footnote at the outset of the opinion. 533 F.Supp. at 672-73. . We may assume, without deciding, that the alleged breach of contract arose from the same “nucleus of operative fact\" (the termination of Grubb’s employment at hospital) as his federal-law claims, and thus the District Court had the power to exercise pendent jurisdiction in this case. . Policy No. 355 provides, in pertinent part, as follows: II. DEFINITIONS A. Layoff: Layoffs are granted to staff members who are employed in departments which cannot continue their employment due to such reasons as: ... (2) a reorganization" }, { "docid": "1677871", "title": "", "text": "Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (general ability tests); Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977) (height and weight requirements). This court has followed such an approach in Spurlock v. United Airlines, 475 F.2d 216 (10th Cir. 1972) (college degree and 500 flight hours required for airline pilots), and Jones v. Lee Way Motor Freight, Inc., 431 F.2d 245 (10th Cir. 1970), cert. denied, 401 U.S. 954, 91 S.Ct. 972, 28 L.Ed.2d 237 (there was a company rule that truck drivers could not transfer to positions as “line” truck drivers, that is, “over-the-road” truck drivers). In cases such as this, statistical evidence is generally employed to prove the existence of disparate impact resulting from the criticized employment criteria. Courts have also applied the disparate impact theory of analysis to cases where the employer habitually engaged in a routine, general method of determining whether applicants or employees were qualified for particular jobs, promotions or transfers. Such general standards have been dealt with by this court in Rich v. Martin Marietta Corp., 522 F.2d 333 (10th Cir. 1975), Muller v. United States Steel Corp., 509 F.2d 923 (10th Cir. 1975); and Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir. 1972). Frequently these general policies involve subjective standards under the guise of which discrimination can more easily be practiced. See, for example, Robinson v. Union Carbide Corp., 538 F.2d 652 (5th Cir. 1976). Proof of a disparate impact gives rise to a prima facie case of employment discrimination upon a showing that the practices operate to exclude members of a protected group. Griggs v. Duke Power Co., supra; Furnco Construction Corp. v. Waters, supra. Statistical evidence will often be sufficient to establish the disparate impact. Albemarle, supra. The burden then shifts to the employer to show that its practice is “job related.” Plaintiff’s allegations of discrimination generally do not fall within the categories of cases to which disparate impact analysis is applicable. There has not been an allegation that the company systematically followed a practice or procedure for" }, { "docid": "133018", "title": "", "text": "another manager, and by a view that Mrs. Fountain had performed that role well for many years and should logically be retained therein. Therefore, the judgment of the District Court had to rest on whether or not Grubb carried “the ultimate burden of persuading the court that [h]e has been the victim of intentional discrimination.” Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. “In short, the district court [had to] decide which party’s explanation of the employer’s motivation it believe[d].” Aiken, 103 S.Ct. at 1482. As noted above, Judge Boyle found that Carl’s actions evidenced animus against Grubb, and that Grubb's testimony about alleged racist comments by Carl established the unlawful nature of that animus. She further concluded, without further weighing of the evidence, that “while Defendant may have had a valid economic reason for the elimination of a supervisory position in the laundry, it does not follow that the decision to terminate Mr. Grubb would have been reached despite Mr. Carl’s unlawful animus.” 533 F.Supp. at 675. This conclusion is defective for two reasons: (1) it gives considera bly greater weight to Grubb’s testimony than was due; and (2) it has the effect of changing the nature of Hospital’s burden under Burdine. As pointed out by Judge Martin of this Court in the recent case of Brooks v. Ashtabula County Welfare Department, 717 F.2d 263, 267 (6th Cir.1983), the district court in a Title VII disparate treatment case cannot require the defendant to persuade the court that the legitimate reason articulated by said defendant actually motivated the employment decision at issue. It is the plaintiffs burden to persuade the court “that the asserted reason is pretextual.” Fields, 723 F.2d at 1219. But the effect of the District Court opinion in this case was to require proof (presumably by the defendant Hospital) that the decision to eliminate Grubb’s job “would have been reached” regardless of any racism on Carl’s part. Although Grubb testified that Carl had exhibited racial bias on at least two occasions, there is no other evidence in the record of racial bigotry on his part, or" }, { "docid": "133025", "title": "", "text": "needed to perform that function at the combined facility. It was also an objective fact that Rosella Fountain was already working as the kind of supervisor Carl would still need in the laundry. To the extent that he also considered Mrs. Fountain to be more “cooperative” and better able “to work with the women” than Grubb, he was employing subjective judgment. But that subjectivity, without substantial proof of racial bias in its exercise, does not constitute unlawful discrimination. It is also contended that Carl’s alleged criteria were a sham because they were not applied to Grubb. This argument ignores the fact that Carl was not required to choose whether to retain Mr. Grubb or Mrs. Fountain in the same type of position, but rather whether to retain an assistant laundry director or a laundry supervisor. Carl’s standards were applied to Grubb, in the sense that it was determined that he was performing duties that Carl himself could perform in the consolidated facility, and thus the assistant director position would be superfluous. And to hold that Carl and Hospital should have “bumped” Mrs. Fountain from her job, and replaced her with Grubb, would interfere with a legitimate management decision to retain an employee in a position which she had well and faithfully performed for many years. Also, such a decision could well have left Hospital open to a sex discrimination charge instead. From an examination of the trial testimony of the two individuals, we come away with a picture of a rivalry caused when a man is suddenly placed into a superior position over another man. Both gentlemen originally held analogous positions in their respective laundries, but the administrative restructuring after the merger no doubt left a certain amount of resentment in Mr. Grubb, who might have received the higher post himself, and likewise left Mr. Carl, a man with perhaps less experience, in an insecure position where he had to contend with Grubb’s ideas of how things should be done. This impression is fortified by the following testimony given by Plaintiff at trial: Q Now, do you believe that Mr." }, { "docid": "133020", "title": "", "text": "that of any other Hospital official. The evaluation of Grubb’s work made by Mr. Carl in early 1977 (App. at 628-29) does not evidence any propensity by Carl to act according to his alleged racial bias, even though the subjective nature of such an evaluation would give him an opportunity to do so. A comparison of that evaluation with those made by Harold Petke when he was Grubb's immediate superior at Mercy Hospital (App. at 630-88) fails to show any significant change in how Grubb’s job performance was viewed. Judge Boyle specifically found no evidence of discriminatory motives in either Petke or Culhane, the two other administrators most directly involved in Grubb’s termination. Both Mrs. Fountain and Ms. Osborne, with whom Grubb acknowledged being on friendly terms, could recall no incidence of discrimination by Carl, and Ms. Osborne (whom Carl allegedly wanted to fire, and referred to as a “nigger”) stated that she and Carl were friendly and would occasionally visit each other’s homes. Furthermore, Grubb never complained about Carl’s alleged racism to anyone in Hospital’s administration, or even filed a formal grievance on that basis when his position was eliminated. It is true, of course, that an employer may be held liable under Title VII “for the discriminatory actions of its supervisors which affect the tangible job benefits of an employee on the basis of race.” Henson v. City of Dundee, 682 F.2d 897, 909 (11th Cir.1982). But this operation of the doctrine of respondeat superior should not dissuade the court from requiring the Title VII plaintiff to prove his case, particularly where (as here) an eleemosynary institution stands at risk for high amounts of damages and attorneys fees, and there were legitimate, nondiscriminatory reasons for its eliminating unnecessary expenses and pursuing the course it did in a combined facility. Although Grubb’s testimony, when viewed in isolation, could be substantial evidence for the District Court’s finding of racial animus, that finding must be reviewed in light of the entire record, and reversed when it is against the clear weight of the evidence. Johnson v. United States, 600 F.2d 1218," }, { "docid": "133048", "title": "", "text": "that he did so, in light of her denial of a directed verdict for Hospital at the close of Grubb’s proofs. See id. at n. 4. . Although personnel director Culhane may have dissuaded Grubb from pursuing the grievance procedure — telling him it was \"no use” going to the hospital president — there is nothing in the record to show that Culhane was aware that Grubb objected to his termination on grounds of race or age discrimination rather than mere dissatisfaction with the decision per se. We do not consider significant, in light of the lower court’s finding of no discriminatory intent on the part of other Hospital officials, any alleged failure to follow Hospital’s policies with regard to layoffs (see part V infra). Mr. Carl took no apparent part in those decisions; his role in these events ended with his handing the termination notice to Grubb. Therefore, his alleged unlawful animus cannot be imputed to any later occurrences. . The descriptions of these criteria in Mr. Petke’s testimony (App. at 51-54) and Mr. Carl’s testimony (App. at 230-38) at trial are admittedly imprecise, but they essentially boiled down to a determination that Mrs. Fountain’s experience in directly supervising the laundry workers, and in scheduling their work hours and daily activities, was needed more in the consolidated laundry than Grubb’s experience in overall management of a laundry facility, a task Carl considered himself capable of doing. . Brooks, 717 F.2d at 267-68; Ward v. West-land Plastics, Inc., 651 F.2d 1266, 1270 (9th Cir.1980); Roman v. ESB, Inc., 550 F.2d 1343, 1354 (4th Cir.1976); Rich v. Martin Marietta Corp., 522 F.2d 333, 338-39 (10th Cir.1975). Although Judge Boyle cites Long v. Ford Motor Co., 496 F.2d 500, 506 (6th Cir.1974), and Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.1972), it should be noted that Rowe (cited in support of the dicta in Long) dealt with allegations of disparate impact on minorities by a facially neutral policy, not a case of alleged disparate treatment due to intentional discrimination. Although subjective evaluations may give greater leeway to personal bias, they" }, { "docid": "133047", "title": "", "text": "that he applied and was qualified for a job for which the employer was seeking applicants; (3) that he was rejected despite his qualifications; and (4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of the plaintiff’s qualifications. 411 U.S. at 802, 93 S.Ct. at 1824. Since this model was formulated in the context of a discriminatory hiring case, it must be applied mu-tatis mutandis to other instances of alleged race discrimination \"with respect to ... terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(l) (1976). See Burdine, 450 U.S. at 253-54 n. 6, 101 S.Ct. at 1093-94 n. 6. . It should be noted, however, that Mrs. Fountain had greater seniority in the Mercy Hospital laundry, having served there since 1940 while Grubb only started there in 1957. But once the Hospital carried its burden of production it was no longer relevant whether or not Grubb had actually made out a prima facie case. See Ai-kens, 103 S.Ct. at 1482. Judge Boyle apparently felt that he did so, in light of her denial of a directed verdict for Hospital at the close of Grubb’s proofs. See id. at n. 4. . Although personnel director Culhane may have dissuaded Grubb from pursuing the grievance procedure — telling him it was \"no use” going to the hospital president — there is nothing in the record to show that Culhane was aware that Grubb objected to his termination on grounds of race or age discrimination rather than mere dissatisfaction with the decision per se. We do not consider significant, in light of the lower court’s finding of no discriminatory intent on the part of other Hospital officials, any alleged failure to follow Hospital’s policies with regard to layoffs (see part V infra). Mr. Carl took no apparent part in those decisions; his role in these events ended with his handing the termination notice to Grubb. Therefore, his alleged unlawful animus cannot be imputed to any later occurrences. . The descriptions of these criteria in Mr. Petke’s testimony (App. at 51-54) and Mr." } ]

[ { "docid": "22432931", "title": "", "text": "for reconsideration. On July 26, Lolli filed a notice of appeal listing only the July 8 order. We have jurisdiction pursuant to 28 U.S.C. § 1291. STANDARD OF REVIEW The denial of a motion for reconsideration is reviewed for an abuse of discretion. See Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 883 (9th Cir.2000). In contrast, we review a grant of summary judgment de novo. See Oliver v.Keller, 289 F.3d 623, 626 (9th Cir.2002). When considering a grant of summary judgment, “[vjiewing 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.” Id. DISCUSSION A. The Notice of Appeal We review the district court’s grant of summary judgment — not simply its denial of Lolli’s motion for reconsideration— although Lolli did not list the order granting summary judgment in his timely notice of appeal. Ordinarily, Lolli’s appeal of the February 28 summary judgment order would have been due by April 1, within 30 days of entry of judgment. Fed. R.App. Pro. 4; 26. Because Lolli filed a motion under Federal Rules of Civil Procedure 59(e) and 60(b) on March 11, this 30-day limit was tolled and began to run anew on July 10, the date the district court entered judgment on the motion for reconsideration. Fed. R.App. Pro. 4(a)(4)(iv), (vi). Lolli filed his notice of appeal on July 26, and it was therefore timely. Federal Rule of Appellate Procedure 3(c)(1)(B) provides that the notice of appeal must “designate the judgment, order, or part thereof being appealed.” When, as here, a party seeks to argue the merits of an order that does not appear on the face of the notice of appeal, we generally consider two factors: (1) whether “the intent to appeal a specific judgment can be fairly inferred” and (2) whether “the appellee [was] prejudiced by the mistake.” See Montes v. United States, 37 F.3d 1347, 1351 (9th Cir.1994) (internal quotation marks omitted). Both factors favor Lolli. Lolli’s intent to appeal the" } ]

[ { "docid": "5360518", "title": "", "text": "did not mention the May 8, 2003 Order granting summary judgment. The defendants ignore, however, the Rule 28(a)(1) statement that Messina filed with this court, which specified her intention to appeal from both orders and attached a copy of each. See D.C. CIR. R. 28(a)(1)(B) (“Rulings Under Review”) (requiring that an appellant’s Rule 28(a)(1) statement make “[ajppropriate references ... to each ruling at issue in this court, including the date ... and any official citation”); see also D.C. CIR. R. 15(c)(3) (requiring appellants to attach provisional Rule 28(a)(1) statements to their docketing statements). This circuit adheres to the “rule that a mistake in designating the specific judgment or order appealed from should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the appellant’s notice (and subsequent filings) and the opposing party is not misled by the mistake.” Foretich v. ABC, 198 F.3d 270, 274 n. 4 (D.C.Cir.1999). Messina’s Rule 28(a)(1) filing removed any doubt regarding her intent to appeal from the May 8 as well as the June 12 Order, and likewise eliminated any possibility that the defendants could have been misled in that regard. Indeed, at oral argument, the defendants conceded that the Rule 28(a)(1) statement clearly indicated Messina was challenging both orders and that. they were not misled. Oral Arg. Tape at 20:39. Accordingly, Messina’s challenge to the district court’s May 8 grant of summary judgment is properly before us. Ill We review the district court’s grant of summary judgment de novo. Republican Nat’l Comm. v. Taylor, 299 F.3d 887, 890 (D.C.Cir.2002). We will affirm if “there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The judicial proceedings privilege, upon which the district court grounded its grant of summary judgment, is well-settled in District of Columbia law. See Finkelstein, Thompson, & Loughran v. Hemispherx Biopharma, Inc., 774" }, { "docid": "16109105", "title": "", "text": "claim and that several of the bases for the IIED claims were preempted by federal law. The workers have appealed the grant of summary judgment as to their duty of fair representation and intentional infliction of emotional distress claims. They do not challenge the earlier dismissal of the other state law claims. II. JURISDICTION AND STANDARD OF REVIEW The district court had jurisdiction over the federal law DFR claim pursuant to 28 U.S.C. § 1337(a). See Breininger v. Sheet Metal Workers Int’l Ass’n Local Union No. 6, 493 U.S. 67, 83-84, 110 S.Ct. 424, 107 L.Ed.2d 388 (1989). The district court properly exercised supplemental jurisdiction over state law claims pursuant to 28 U.S.C. § 1367(a). We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. We review the district court’s grant of summary judgment de novo. Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of material fact. Id. 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We may affirm a grant of summary judgment on any ground supported by the record. Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 750 (9th Cir.2001). III. DISCUSSION The union and the workers both make numerous legal arguments in favor of their respective positions. We address these arguments in the order we deem to be prudent and reach only those necessary to our disposition of this ease. We conclude that the union is not liable for breach of the duty of fair representation, and that the workers have failed to produce evidence sufficient to maintain intentional infliction of emotional distress claims against any defendant. A. Proper parties to this appeal In their opposition brief, the union" }, { "docid": "23674787", "title": "", "text": "to certify its order for appeal, we now have jurisdiction pursuant to 28 U.S.C. § 1292(b). We Review motions for summary judgment de novo. See Suzuki Motor Corp. v. Consumers Union of United States, Inc., 330 F.3d 1110, 1131 (9th Cir.), cert. denied, 540 U.S. 983, 124 S.Ct. 468, 157 L.Ed.2d 373 (2003); King Jewelry, Inc., v. Fed. Express Corp., 316 F.3d 961, 963 (9th Cir.2003). Summary judgment should be granted when “there is no genuine issue as to any material fact” such that “the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Suzuki Motor Corp., 330 F.3d at 1131. To prevail on a summary judgment motion, the moving party carries the initial burden of demonstrating to the court that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has carried that burden, it then shifts to the nonmoving party, who must present evidence that there is indeed a genuine issue for trial. See id. at 323-24, 106 S.Ct. 2548. All disputed issues of fact are to be resolved in favor of the nonmoving party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. III. DISCUSSION MetroPCS advances claims under several sections of the'TCA, none of which has been authoritatively construed by this circuit. We address each of these claims in turn. A. Decision “In Writing” Under the Telecommunications Act, “[a]ny decision by a State or local government ... to deny a request to place, construct, or modify personal wireless service facilities shall be in writing.” 47 U.S.C. § 382(c)(7)(B)(iii). In the proceedings below, the district court ruled that the Board’s decision was adequately “in writing” under the TCA and granted the City’s motion for summary judgment on this issue. 259 F.Supp.2d at 1009. MetroPCS now appeals this ruling and. moves for summary judgment. The TCA’s simple directive that all local zoning decisions adverse to wireless service providers be “in" }, { "docid": "11835523", "title": "", "text": "for summary judgment. On February 26, 2007, plaintiff filed a motion for partial summary judgment, asserting that he is entitled to summary judgment on defendant’s liability under FMLA. Defendant filed a response on March 21, 2007, and plaintiff filed a reply on March 27, 2007. Meanwhile, on March 2, 2007, defendant filed a motion for summary judgment arguing that plaintiff cannot establish a genuine issue of material fact because (1) his knee problems in May 2005 did not constitute a “serious health condition” for which he was entitled to leave under FMLA, and (2) he provided insufficient notice of his intent to take FMLA leave. Plaintiff filed a response to defendant’s motion on April 6, 2007, and defendant filed a reply on April 27, 2007. B. Legal Standard Under Rule 56, summary judgment' should be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “An issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 451 (6th Cir.2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “A fact is material only if its resolution will affect the outcome of the lawsuit.” Hedrick, 355 F.3d at 451-52 (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). In deciding a motion for summary judgment, the Court must view the evidence in a light most favorable to the non-movant as well as draw all reasonable inferences in the non-movant’s favor. See Sutherland v. Michigan Dep’t of Treasury, 344 F.3d 603, 613 (6th Cir.2003); Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir.2003). “The moving party has the initial burden of showing the absence of a genuine issue of material fact as to an essential element of the non-moving party’s case.” Hedrick, 355 F.3d at 451" }, { "docid": "9556002", "title": "", "text": "MEMORANDUM OF DECISION JEFFERY P. HOPKINS, Bankruptcy Judge. Plaintiff, Kyle Howard (“Howard”), a physician, commenced this adversary proceeding on December 11, 1998, by filing a Complaint (Doc. 1) seeking a determination that the debt owed him by the Defendant, Debtor James M. McWeeney (“McWeeney”), is nondischargeable under 11 U.S.C. § 523(a)(6). Presently before the Court is a summary judgment motion (“Motion”) (Doc. 24) filed by McWeeney on February 2, 2000. The Court has jurisdiction over this proceeding pursuant to 28 U.S.C. § 1334 and the Standing Order of reference entered in this district on July 30, 1984. This is a core proceeding. 28 U.S.C. § 157(b)(2)(I). I Summary judgment is governed by Fed. R.Civ.P. 56, made applicable to this adversary proceeding pursuant to Fed. R. Bankr.P. 7056. The rule provides that “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Material facts are those “that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue exists with respect to a material fact “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The moving party bears the initial burden of “identifying those portions of [the record] 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). If this is accomplished, the non-moving party must establish the existence of facts, beyond mere allegations or denials in the pleadings, that demonstrate a genuine issue for trial. Id. at 324, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. In this regard, the evidence of the non-movant is to be taken as true and all justifiable inferences are to be drawn" }, { "docid": "16109106", "title": "", "text": "are any genuine issues of material fact. Id. 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.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We may affirm a grant of summary judgment on any ground supported by the record. Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 750 (9th Cir.2001). III. DISCUSSION The union and the workers both make numerous legal arguments in favor of their respective positions. We address these arguments in the order we deem to be prudent and reach only those necessary to our disposition of this ease. We conclude that the union is not liable for breach of the duty of fair representation, and that the workers have failed to produce evidence sufficient to maintain intentional infliction of emotional distress claims against any defendant. A. Proper parties to this appeal In their opposition brief, the union pointed out that two of the appellants— Teresa Wilson Sloan and Miyako Kanai— were omitted from the Notice of Appeal. The workers subsequently moved to correct the Notice of Appeal, which was allowed by the Deputy Clerk. The union then filed a Motion to Reconsider Deputy Clerk’s Order Granting Appellants’ Motion to Correct Clerical Mistake in Appellants’ Notice of Appeal, and the workers filed an opposition. This motion has been referred to this panel. Federal Rules of Appellate Procedure 3(c) provides that “[a]n appeal must not be dismissed ... for failure to name a party whose intent to appeal is otherwise clear from the notice.” “If a court determines it is objectively dear that a party intended to appeal, there are neither administrative concerns nor fairness concerns that should prevent the appeal from going forward.” Fed. R.App. P. 3(c) advisory committee’s note. It is clear from the record that the omission of Wilson-Sloan and Kanai was an inadvertent clerical error stemming from their counsel’s use of an incorrect caption; other pleadings before the district court" }, { "docid": "10761526", "title": "", "text": "comply with BLR 7056-1 by not filing a statement of undisputed facts with her first summary judgment motion and filed her second motion for summary judgment out of time and in disregard of the February 4, 2013 order. For these reasons, this Court will not consider either one of those motions. The Court held a hearing on the motions for summary judgment on August 28, 2013. C. Conclusions of Law. Plaintiffs seek a judgment that the debt owed by Defendant to each of them is not dischargeable under section 523(a)(5) or, alternatively, under section 523(a)(15) of the Bankruptcy Code and under section 523(a)(6). 1. Summary Judgment Standards. Pursuant to Fed.R.Civ.P. 56(c), made applicable by Fed. R. Bankr.P. 7056, a party moving for summary judgment is entitled to prevail if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material for the purposes of summary judgment only if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211 (1986). The moving party bears the initial burden to establish that no genuine factual issue exists or alternatively, that the non-moving party cannot prove its case at trial. Celotex, 477 U.S. at 323-326, 106 S.Ct. 2548; Exigent Tech., Inc. v. Atrana Solutions, Inc., 442 F.3d 1301, 1307-1309 (Fed. Cir.2006). The movant must point to the pleadings, discovery responses or supporting affidavits that tend to show the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The court must construe this evidence in the light most favorable to the non-moving party. Anderson, 477 U.S. at 249, 106 S.Ct. 2505; Rollins v. TechSouth, Inc., 833 F.2d 1525 (11th Cir.1987). “If there is a conflict between the parties’" }, { "docid": "22423205", "title": "", "text": "district court dismissed without prejudice. Appellant filed a timely notice of appeal. This court has jurisdiction over the appeal under 28 U.S.C. § 1291 because the order appealed from is a final decision of the district court. STANDARD OF REVIEW We review de novo the district court’s order granting summary judgment. See Buono v. Norton, 371 F.3d 543, 545 (9th Cir.2004). This court’s review is governed by the same standard used by the district court under Federal Rule of Civil Procedure 56(c). Suzuki Motor Corp. v. Consumers Union, Inc., 330 F.3d 1110, 1131 (9th Cir.), cert. denied, 540 U.S. 983, 124 S.Ct. 468, 157 L.Ed.2d 373 (2003). We must determine, viewing the evidence in the light most favorable to 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). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. The moving party has the burden of showing the absence of any genuine issue of fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 153, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). To defeat summary judgment the nonmoving party must go beyond the pleadings and, by its own affidavits or discovery, “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). If the non-moving party fails to make this showing, “the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). DISCUSSION “[T]he treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31, 113 S.Ct. 2475, 125 L.Ed.2d 22" }, { "docid": "23466914", "title": "", "text": "(E.D.Pa.2000). On February 6, 2001, one month prior to trial, the district court on Ernst’s motion entered summary judgment in its favor completely extinguishing the case on two independent grounds — appellants’ failure to adduce sufficient evidence of both scien-ter and loss causation. In addition, the court, as we have indicated, granted Ernst a partial summary judgment. Appellants filed a timely notice of appeal on March 5, 2001. C. Jurisdiction We have jurisdiction over this appeal of a final judgment of the district court pursuant to 28 U.S.C. § 1291. The district court exercised federal question jurisdiction under 28 U.S.C. §§ 1331 and 1337, because the case arose under the Securities Exchange Act of 1934, 15 U.S.C. § 78aa, and Rule 10b-5 promulgated thereunder. II. DISCUSSION A. Standard of Review We review an order granting summary judgment de novo, applying the same test the district court employed. See Lucent Info. Mgmt., Inc. v. Lucent Tech. Inc., 186 F.3d 311, 315 (3d Cir.1999). Fed. R.Civ.P. 56(c) provides, in pertinent part, that a court may grant summary judgment only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” In determining whether summary judgment is warranted, we view the record and draw inferences in a light most favorable to the non-moving party. See Arnold M. Diamond, Inc. v. Gulf Coast Trailing Co., 180 F.3d 518, 521 (3d Cir.1999). If a non-moving party fails to make a showing sufficient to establish the existence of an element essential to that party’s case on which it bears the burden of proof at trial, there is no issue as to a genuine issue of a material fact and thus the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Moreover, a party will not be able to withstand a motion for summary judgment" }, { "docid": "7870156", "title": "", "text": "in deciding that CSX and UTU were entitled to summary judgment We review the district court’s grant of summary judgment de novo. Sperle v. Michigan Dep’t of Corr., 297 F.3d 483, 490 (6th Cir.2002). Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). In considering such a motion, the court construes all reasonable factual inferences in favor of the nonmov-ing party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The central issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On appeal, the engineers argue that the district court erred in deciding that UTU owed them no duty of fair representation. They first claim that because they have trainmen’s seniority rights, they are part of the craft of trainmen, at least with respect to their seniority rights. Alternatively, they contend that even if they are not members of the craft, UTU nevertheless owed them a duty of fair representation. (The engineers do not challenge the district court’s award of summary judgment on their arbitration appeals, so that issue is not before us. Priddy v. Edelman, 883 F.2d 438, 446 (6th Cir.1989) (“We normally decline to consider issues not raised in the appellant’s opening brief.”).) 1. Claim premised upon a bargaining representative’s duty to members of the craft it represents The Railway Labor Act “impose[s] on the bargaining representative of a craft or class of employees the duty to exercise fairly the power conferred upon it in behalf of all those for whom it acts, without hostile discrimination against them.” Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192, 202-03, 65 S.Ct. 226, 89 L.Ed. 173 (1944). “A breach of the statutory duty of fair representation occurs only when a union’s conduct" }, { "docid": "15890915", "title": "", "text": "amount of BofA’s Swap Claim against Thrifty, if allowed, at $5,428,500. The agreement preserved Thrifty’s rights to object to allowance of the Swap Claim. After discovery and on summary judgment, the Bankruptcy Court rejected Thrifty’s objections and allowed the Swap Claim. See In re Thrifty Oil Co., 212 B.R. 147, 154 (Bankr.S.D.Cal.1997). Thrifty filed a timely notice of appeal, vesting this Court with appellate jurisdiction under 28 U.S.C. § 158(a). III. Standard Of Review Rule 56 of the Federal Rules of Civil Procedure mandates entry of summary judgment where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Fed. R. Civ. P. 56(c); Fed. R. Bank P. 7056; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A fact is “material” when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A “genuine issue” of material fact arises if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. Where, as here, the case turns on a mixed question of fact and law and the only disputes relate to the legal significance of undisputed facts, the controversy collapses into a question of law suitable to disposition on summary judgment. Union Sch. Dist. v. Smith, 15 F.3d 1519, 1523 (9th Cir.1994); Graham v. City of Chicago, 828 F.Supp. 576, 583 (N.D.Ill.1993). The district court reviews a bankruptcy court order granting summary judgment de novo. Parker v. Community First Bank (In re Bakersfield Westar Ambulance, Inc.), 123 F.3d 1243, 1245 (9th Cir.1997); Corman v. Morgan (In re Morgan), 197 B.R. 892, 895 (N.D.Cal.1996). The district court may affirm on any ground supported by the record, even if it differs from the ground relied upon by the bankruptcy court. Newbery Corp. v. Fireman’s Fund Ins. Co., 95 F.3d 1392, 1398 (9th Cir.1996); In re DeMasi, 227 B.R. 586, 587 (D.R.I.1998). IV. Discussion Thrifty raises two" }, { "docid": "23674786", "title": "", "text": "written, denial of MetroPCS’s CUP application constituted a decision “in writing” as required by § 332(c)(7) of the TCA, (2) the Board’s decision was supported by “substantial evidence,” (3) the Board did not unreasonably discriminate among providers of functionally equivalent services and (4) the Board’s decision was not impermissibly based on concerns over RF emissions. The City was granted summary judgment with respect to its claims on each of thése issues. Id. However, the district court also held that significant questions of material fact existed as to whether the Board’s denial of MetroPCS’s CUP application prohibited or had the effect of prohibiting the provision of wireless services in violation of § 332(c)(7) of the TCA. Id. at 1012-15. Accordingly, the district court denied both parties’ motions for summary judgment as to this issue. Id. at 1015. Both parties were granted leave to appeal the district court’s ruling to this Court, and both parties now seek summary judgment on all claims. II. JURISDICTION AND STANDARD OF REVIEW ' Since the district court granted both parties’ motions to certify its order for appeal, we now have jurisdiction pursuant to 28 U.S.C. § 1292(b). We Review motions for summary judgment de novo. See Suzuki Motor Corp. v. Consumers Union of United States, Inc., 330 F.3d 1110, 1131 (9th Cir.), cert. denied, 540 U.S. 983, 124 S.Ct. 468, 157 L.Ed.2d 373 (2003); King Jewelry, Inc., v. Fed. Express Corp., 316 F.3d 961, 963 (9th Cir.2003). Summary judgment should be granted when “there is no genuine issue as to any material fact” such that “the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Suzuki Motor Corp., 330 F.3d at 1131. To prevail on a summary judgment motion, the moving party carries the initial burden of demonstrating to the court that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has carried that burden, it" }, { "docid": "22165275", "title": "", "text": "which summary judgment was granted, with the exception of the claim against the Union for violation of the duty of fair representation under LMRA § 301, which is therefore not before this Court. In appealing that final judgment, the plaintiffs have abandoned the ERISA claim against the Union and NLRA claims. They appeal only the award of sum- . mary judgment on the RICO claim and the § 301 claim against USX for breach of contract; they also appeal a number of discovery orders the district court entered prior to summary judgment. That appeal bears number 92-6218, and has been consolidated with the discovery appeal, number 91-7215. II. THE DISTRICT COURT’S GRANT OF SUMMARY JUDGMENT A THE STANDARD OF REVIEW We review a “grant[ ] of summary judgment de novo, applying the same legal standard applied by the district court in the first instance.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1117 (11th Cir.1993). Summary judgment should be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). There is a genuine issue of material fact “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, 2510, 91 L.Ed.2d 202 (1986). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.... The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255, 106 S.Ct. at 2513 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970)). In other words, “[i]f a reasonable fact finder could draw more than one inference from the facts, and that inference creates a genuine issue of material fact, then" }, { "docid": "22795740", "title": "", "text": "after a court’s order but before the entry of judgment is treated as filed on the date of and after the entry of judgment. Therefore, we deem final judgment entered and LeMaire’s appeal timely filed. As a result, we have jurisdiction over this appeal. IV.DISCUSSION We review a district court’s order granting summary judgment de novo. Morris v. Equifax Info. Servs., L.L.C., 457 F.3d 460, 464 (5th Cir.2006). Summary judgment is appropriate when, after considering the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, “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); Bulko v. Morgan Stanley DW, Inc., 450 F.3d 622, 624 (5th Cir.2006). A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a summary judgment motion, all facts and evidence must be taken in the light most favorable to the non-movant. United Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir.2006). However, to avoid summary judgment, the non-movant must go beyond the pleadings and come forward with specific facts indicating a genuine issue for trial. Piazza’s Seafood World, L.L.C. v. Odom, 448 F.3d 744, 752 (5th Cir.2006). Complicating our review of this case is the fact that the district court gave no reasons for its decision. While findings of fact and conclusions of law are not necessary, as our review is de novo, we have emphasized in the past that such findings and conclusions are “often quite helpful for appellate review.” Thomas v. N.A. Chase Manhattan Bank, 994 F.2d 236, 241 n. 6 (5th Cir.1993) (internal quotation marks omitted). Indeed, in this case, such an analysis would have been beneficial as the pleadings and arguments of the parties are less than clear. However, because our review is not limited to the district court’s analysis, we may affirm the" }, { "docid": "15131523", "title": "", "text": "trial, and that the district court improperly resolved reasonable inferences from these facts in favor of the union and the Employers rather than in his favor. He specifically alleges that the union breached its duty of fair representation in its misrepresentations to CSJAC, in its negotiation of the endtail provision, and in its presentation of Williams’s grievance. Williams also claims that the district court improperly dismissed his claims that Complete and TSI were part of a single employer, and that their agreements with the union violated NMATA. II. ANALYSIS A. Standard of review We review de novo the district court’s grant of summary judgment. See Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir.1997). Summary judgment is appropriate when there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). In deciding a motion for summary judgment, the court must view the evidence and draw all reasonable inferences in favor of the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The judge is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue for trial is presented when there is sufficient “evidence on which the jury could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. 2505. B. Breach of the union’s duty of fair representation 1. Duty of fair representation As stated by Justice Byron White in Vaca v. Sipes, 386 U.S. 171, 177, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), the leading ease in this area of the law, a union’s duty of fair representation includes “a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” The duty extends to all of the union’s represented" }, { "docid": "13976826", "title": "", "text": "(Id.) Plaintiff subsequently filed an EEOC charge, unrelated to the present action, alleging that the County had discriminated against her in violation of the ADA. (Id.) II. Procedural History Defendants previously moved to dismiss plaintiffs Complaint pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction and, alternatively, pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. In an Opinion and Order dated September 22, 2004 (the “9/22/04 Opinion”) this Court denied defendants’ Rule 12(b)(1) motion and granted in part defendants’ Rule 12(b)(6) motion. However, at that time we declined to consider all of the grounds for dismissal raised by defendants in their Rule 12(b)(6) motion and gave notice that we would treat it as a motion for summary judgment pursuant to Rule 56. ' Accordingly, we will now address those remaining issues herein. DISCUSSION I. Standard of Review on Motion for Summary Judgment Under Fed. R. Civ. P. 56, summary judgment may be granted where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Crv. P. 56(c). The burden rests on the movant to demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant for a reasonable jury to return a verdict in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding whether summary judgment is appropriate, the court resolves all ambiguities and draws all permissible factual inferences against the movant. See id. at 255, 106 S.Ct. 2505. To defeat summary judgment, the nonmovant must go beyond the pleadings and “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court’s role at this stage" }, { "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": "22795739", "title": "", "text": "granted LaDOTD’s motion, stating that “written reasons” for its decision would be “filed at a later date.” Written reasons have never been filed, and LeMaire appealed the district court’s order on November 4, 2005. LeMaire has appealed only his Title VII claims. As a result, we do not consider his state law claims of assault and intentional infliction of emotional distress. III. JURISDICTION Although no judgment has ever been entered in this case, we have jurisdiction over this appeal under 28 U.S.C. § 1291. Pursuant to Rule 58(a) of the Federal Rules of Civil Procedure, a judgment following an order on a summary judgment motion must be set forth in a separate document. However, if a separate judgment is required but not entered, judgment is deemed entered 150 days after the order. Fed.R.Civ.P. 58(b)(2)(B). In this case, then, judgment was deemed entered 150 days after October 6, 2005, which was March 5, 2006. Although LeMaire filed his appeal before that date, Rule 4(a)(2) of the Federal Rules of Appellate Procedure provides that an appeal filed after a court’s order but before the entry of judgment is treated as filed on the date of and after the entry of judgment. Therefore, we deem final judgment entered and LeMaire’s appeal timely filed. As a result, we have jurisdiction over this appeal. IV.DISCUSSION We review a district court’s order granting summary judgment de novo. Morris v. Equifax Info. Servs., L.L.C., 457 F.3d 460, 464 (5th Cir.2006). Summary judgment is appropriate when, after considering the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, “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); Bulko v. Morgan Stanley DW, Inc., 450 F.3d 622, 624 (5th Cir.2006). A genuine issue of material fact exists when the evidence is such that a reasonable jury could return a verdict for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a summary judgment motion, all facts" }, { "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": "1659237", "title": "", "text": "United States, 892 F.Supp.2d 149, 154 (D.D.C. 2012) (quoting Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) ). If the Court determines that one party is not entitled to summary judgment, it \"changes tack on the cross motion and gives the unsuccessful movant 'all of the favorable factual inferences that it has just given to the movant's opponent.' \" Nucap Indus., Inc. v. Robert Bosch LLC, No. 15-2207, 273 F.Supp.3d 986, 997-98, 2017 WL 1197104, at *6 (N.D. Ill. Mar. 31, 2017) (quoting R.J. Corman Derailment Servs., LLC v. Int'l Union of Operating Engrs., Local Union 150, 335 F.3d 643, 647-48 (7th Cir. 2003) ). It is nonetheless still possible for a court to deny summary judgment to both sides. Summary judgment is appropriate \"only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed.\" Airlie Foundation v. IRS, 283 F.Supp.2d 58, 61 (D.D.C. 2003) (citing Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir. 1975) ); see also Fed. R. Civ. P. 56(a) ; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; CEI Wash. Bureau, Inc. v. DOJ, 469 F.3d 126, 129 (D.C. Cir. 2006). A fact is \"material\" if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 ; Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A dispute is \"genuine\" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 ; Holcomb, 433 F.3d at 895. \"A party asserting that a fact cannot be or is genuinely disputed must support the assertion\" by \"citing to particular parts of materials in the record\" or \"showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible" } ]

[ { "docid": "6405594", "title": "", "text": "future claims. See, e.g., Gentile v. MCA Records, Inc., 17 A.D.3d 264, 793 N.Y.S.2d 407 (N.Y.App.Div.lst Dep’t 2005). Consequently, we review the district court’s summary judgment ruling granting summary judgment as to Gold’s overtime claim de novo and agree with its conclusion. See In re Novartis Wage & Hour Litig., 611 F.3d 141, 150 (2d Cir. 2010) (abrogated on other grounds by Christopher v. SmithKline Beecham Corp., — U.S.-, 132 S.Ct. 2156, 183 L.Ed.2d 153 (2012)). “Outside salesmen” are exempted from New York Labor Law’s overtime requirements. “Outside salesm[e]n,” are defined as employees: (1)Whose primary duty is: (i) making sales ...; or (ii) obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and (2) Who is customarily and regularly engaged away from the employer’s place or places of business in performing such primary duty. 29 C.F.R. § 541.500(a) (defining “outside salesmen” as authorized by FLSA exemption provision, 29 U.S.C. § 213(a)(1)); see 12 NYCRR § 142-2.2 (noting that New York Labor Law’s overtime provision is subject to FLSA exemptions). The applicable regulations further provide that the “determination of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole.” 29 C.F.R. § 541.700. Our review of the record before the district court confirms that Gold’s primary duty was selling insurance. He was hired and trained by New York Life to sell insurance. Joint Appx. 879, ¶ 29, 902-09, ¶¶ 59-72. His compensation as well as his continued affiliation with the company was tied exclusively to his sales. Joint Appx. 866-67, ¶¶ 7-8, 914-15, ¶¶ 80-83. He was responsible for maintaining his own client lists, and he conceded that he was regularly engaged away from his employer’s place of business as his responsibilities were to “go out, meet people” and “close deals.” Joint Appx. 901-02, ¶¶ 57-58. Although Gold argues that research and making investment recommendations were his primary duties, even in the light most favorable to Gold," } ]

[ { "docid": "6405579", "title": "", "text": "York Life on Gold’s overtime claim, denied Gold summary judgment on his wage deduction claim, and ruled that a 2011 amendment to New York Labor Law that increased the amount of recoverable liquidated damages did not apply retroactively. In 2012, New York Life moved to dismiss the complaint based on CAFA’s home state exception. Concluding that the exception applied, the district court dismissed the complaint. Gold appeals, contending that New York Life waived the home state exception by failing to raise it within a reasonable time. For the reasons that follow, we hold that CAFA’s home state exception is not jurisdictional and must be — and in this ease was — raised within a reasonable time. We also hold that the 2011 amendment to New York Labor Law is not retroactive and that the district court’s grant of partial summary judgment with respect to Gold’s overtime claim was correct. BACKGROUND New York Life is a mutual insurance company that sells life insurance and other financial products. Joint Appx. 861. Gold was employed as an insurance agent at the company’s New York office from December 2001 to August 2004. Joint Appx. 30. It is not disputed that throughout Gold’s employment, New York Life classified him as an outside salesman whose main responsibility was to sell insurance. Under New York Labor Law, outside salesmen are not entitled to overtime pay. See 12 NYCRR § 142-2.2 (by reference to 29 U.S.C. § 213(a)(1) which exempts outside salesmen (as defined in 29 C.F.R. § 541.500) from Fair Labor Standards Act (“FLSA”) overtime provisions). When Gold started with New York Life, he was licensed to sell life insurance as well as annuities. Later, he obtained licenses which allowed him to also sell products with investment components and permitted him to use the title “registered representative.” Joint Appx. 868-69. To make sales, Gold was trained by New York Life to follow a six-step process that included researching a client’s needs, recommending products to meet those needs, and ultimately selling the client those products. Joint Appx. 169-70. As a registered representative, Gold was obligated to also comply" }, { "docid": "20206610", "title": "", "text": "matter of law.” Fed R. Civ. P. 56(c). Furthermore, we review a District Court’s interpretations of administrative regulations de novo. See Anderson v. Rochester-Genesee Reg'l Transp. Auth., 337 F.3d 201, 207 (2d Cir.2003). Specialized principles apply to our review of a district court’s construction of the FLSA. Because the FLSA is a remedial law, we must narrowly construe its exemptions. See, e.g. Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 4 L.Ed.2d 393 (1960); Bilyou v. Dutchess Beer Distribs., Inc., 300 F.3d 217, 222 (2d Cir.2002); Reich v. State of New York, 3 F.3d 581, 586 (2d Cir.1993), abrogated on other grounds by Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Furthermore, the employer invoking the exemption bears the burden of proving that its employees fall within the exemption. See Bilyou, 300 F.3d at 222. B. Fair Labor Standards Act and Related Regulations Congress enacted the FLSA in 1938 to eliminate “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” 29 U.S.C. § 202(a). In that effort, the FLSA imposes numerous “wage and hour” requirements, including the provision at issue here, to ensure that workers are adequately compensated. Pursuant to the FLSA, employers must pay an employee at a rate of “not less than one and one-half times the regular rate at which he is employed” for any hours worked in excess of forty hours in a given week. Id. § 207(a). This general rule does not apply, however, to several types of employees, including “administrative” employees. Id. § 213(a)(1). Accordingly, administrative employees, inter alia, are exempt from the overtime pay provision of the FLSA. The NYLL, too, mandates overtime pay and applies the same exemptions as the FLSA. N.Y. Comp.Codes R. & Regs., tit. 12, § 142-3.2 (“[A]n employer shall pay employees [overtime wages] subject to the exemptions of Section 13 of the Fair Labor Standards Act....”). Here, defendant argues — and plaintiff disputes — that Reiseck was an administrative employee for the purposes of" }, { "docid": "638582", "title": "", "text": "accurate payroll and time records as required by federal law.” Id. ¶ 27. Plaintiffs state in their respective declarations that they often worked more than forty hours per week without overtime compensation. E.g., Declaration of Asgar Muhammad (“Muhammad Deck”) (ct. doc. 54-3) ¶¶ 5-6; Deck of Jose Rivera (“Rivera Deck”) (ct. doc. 54-9) ¶¶ 5-6. According to plaintiffs, defendant Dennis also admitted that he paid employees who worked more than forty hours a week at their regular wage rate for the overtime hours. Declaration of Jennifer Smith dated January 4, 2011 (“1/4/11 Smith Deck”) (ct. doc. 61) at ¶26 (quoting Deposition of Raven P.D. Dennis 94:18-22, 95:6-9, June 8, 2009 ). This Court finds that the undisputed allegations in the complaint and the default submissions form a sufficient basis for establishing defendants’ liability under the FLSA for violations of the overtime provisions and record-keeping requirements. B. Neto York Labor Law The New York Labor Law mirrors the FLSA in most aspects, including its wage and overtime compensation provisions. Like the FLSA, the Labor Law requires that employers provide time-and-a-half compensation for their employees’ work hours exceeding forty per week, and adopts the same methods used by the FLSA for calculating overtime wages. N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2 (2011). The Labor Law also requires that employers establish and maintain complete and accurate records for their employees who fall under the Labor Law’s wage protections. See N.Y. Lab. Law §§ 195, 661; N.Y. Comp. Codes R. & Regs. tit. 12, § 138-3.1 (specifying content of employer’s records). Unlike the FLSA, the NYLL imposes a longer statute of limitations for bringing claims: whereas aggrieved employees must bring claims within two to three years under the FLSA depending on whether the violation was willful, employees have six years after the alleged violation to raise claims under the NYLL. 29 U.S.C. § 255(a); N.Y. Lab. Law § 663(1), (3). New York state also “does not require a plaintiff to show either a nexus with interstate commerce or that the employer has any minimum amount of annual sales.” Chun Jie Yin," }, { "docid": "14877958", "title": "", "text": "hours per week” from three years prior to the filing of this law suit on April 8, 2011 to the present. (Gilly Aff. Ex. B (Dkt. No. 18).) Plaintiffs have proposed a Notice of Pendency and Plaintiff Consent Form. (See Gilly Aff., Ex. B (Dkt. No. 18).). Plaintiffs additionally seek expedited disclosure of “the names, addresses, home and mobile telephone numbers, email addresses, and dates of employment of all Home Lending Specialists, Loan Consultants, and any similar mortgage lending position employed from a date three years prior to the filing of this action for such employees who worked outside of New York State and from a date six years prior to the filing of this action for such employees who worked in New York state.” (Pis. Cert. Mem. 18.) A. The Standard for Conditional Certification for FLSA Collectives The FLSA requires employers to pay their employees overtime wages, at the rate of time and a half, for hours in excess of 40 hours worked in a single week if the employees are not “exempt” under several recognized categories. 29 U.S.C. § 207. The FLSA exempts from overtime requirements persons who are employed in an administrative or executive capacity, employed as outside salespersons, if they are highly compensated, a combination of the foregoing or, in certain circumstances, when they are employed in retail services. See 29 U.S.C. § 213(a)(1) (administrative, executive, outside sales, and retail services exemptions); 29 C.F.R. § 541.601(a) (highly compensated employee exemption); 29 C.F.R. § 541.708 (combination exemption). These exemptions are narrowly construed and the burden rests on the employer to show that the employees are properly classified as exempt. See Martin v. Malcolm Pirnie, Inc., 949 F.2d 611, 614 (2d Cir.1991). Plaintiffs’ federal claims are brought pursuant to Section 216(b) of the FLSA. As earlier discussed, this section provides for a private right of action to recover unpaid overtime compensation and liquidated damages from employers who violate the Act’s overtime provisions. See 29 U.S.C. § 216(b). With regard to collective actions, the FLSA states, in relevant part that: An action ... may be maintained against any employer" }, { "docid": "3126359", "title": "", "text": "is denied. SO ORDERED. . NYNEX Corporation (''NYNEX”) and New York Telephone Company are both predecessors of Bell Atlantic Corporation, which presently operates as Verizon Communications Corporation. . 29 U.S.C. § 207(a)(1) provides in relevant part: Except as otherwise provided in this section, no employer shall employ any of his employees ... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed. . 12 N.Y.C.R.R. 142-2.2 provides that \"an employer shall pay an employee for overtime at a wage rate of 1Í4 times the employee's regular rate in the manner and methods provided in ... the Fair Labor Standards Act of 1938, as amended .... ” . In his motion for summary judgment, plaintiff asserts that the definition of “employee’' ‘ under New York Labor Law is the same as that under the FLSA. Defendant does not contest this assertion, and there are no cases cited that suggest otherwise. Indeed, the definition of “employee’’ under New York Labor Law § 651(5) appears similarly broad. Therefore, this Court will only consider whether plaintiff was an \"employee” within the meaning of the FLSA. See Lopez v. Silverman, 14 F.Supp.2d 405 (S.D.N.Y.1998) (applying a similar analysis). . Under FLSA § 216(b), plaintiff is also entitled to attorneys' fees incurred in relation to this portion of his FLSA claim. . Section 198(l-a) also allows an employee who prevails in a wage claim action reasonable attorneys' fees. Plaintiff would therefore be entitled to attorneys' fees related to his successful New York Labor Law overtime claim. .The Indemnification Clause states that the Contractor: shall indemnify ... the Telephone Company ... from and against losses, claims, demands, payments, suits, actions, recoveries, and judgment of all nature and description, out of or in any manner caused by the performance of any services or the providing of any materials under this agreement by Contractor. (Defs. Mem. Supp. Sum. J. at 26.) . Although this discussion only relates to indemnification" }, { "docid": "13688193", "title": "", "text": "not satisfied and defendant’s claim that plaintiff is exempt from the overtime requirements of the FLSA as a professional employee must be rejected. C. New York Labor Law Like the FLSA New York Labor Law imposes a requirement that employees pay time-and-a-half for work done in excess of forty hours a week. 12 N.Y.C.C.R. § 142-2.2. Similarly, there is an exception for employees working in a bona fide “professional capacity.” 12 N.Y.C.C.R. § 142-2.16 (c) (4) (iii). New York law differs from federal law, however, in that to establish the exception, the employer need not satisfy a “salary” test, only a duties test. Thus, the employer need only show that the employee was primarily engaged in work “requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study ....” Id. The New York language is essentially identical to that used in 29 C.F.R. § 541.3(a), which establishes the duties test for professionals under the FLSA. It is therefore reasonable to look to case law interpreting the latter regulation. As discussed above, the Court has concluded that plaintiff did perform the duties of an engineer in a manner which satisfies the duties test for the professional exemption. Because this is the only requirement under New York law, the plaintiff must be considered exempt from New York Labor Law requirements, even though he is not similarly exempt from the FLSA. Therefore, plaintiff is due overtime pay only for two years preceding the commencement of his action. D. Calculation of Overtime Compensation Under the FLSA, successful plaintiffs are entitled to receive pay for overtime hours (any hours worked in a week over forty) at a rate of one-and-one-half times their regular hourly rates of pay. 29 U.S.C. § 207. Because plaintiffs compensation was structured as an annual salary, payable in standard biweekly installments, the salary must first be converted to an hourly rate before overtime compensation can be determined. 29 C.F.R. § 778.109. Hourly rates are determined by dividing the employee’s biweekly compensation by the number of hours it" }, { "docid": "638583", "title": "", "text": "that employers provide time-and-a-half compensation for their employees’ work hours exceeding forty per week, and adopts the same methods used by the FLSA for calculating overtime wages. N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2 (2011). The Labor Law also requires that employers establish and maintain complete and accurate records for their employees who fall under the Labor Law’s wage protections. See N.Y. Lab. Law §§ 195, 661; N.Y. Comp. Codes R. & Regs. tit. 12, § 138-3.1 (specifying content of employer’s records). Unlike the FLSA, the NYLL imposes a longer statute of limitations for bringing claims: whereas aggrieved employees must bring claims within two to three years under the FLSA depending on whether the violation was willful, employees have six years after the alleged violation to raise claims under the NYLL. 29 U.S.C. § 255(a); N.Y. Lab. Law § 663(1), (3). New York state also “does not require a plaintiff to show either a nexus with interstate commerce or that the employer has any minimum amount of annual sales.” Chun Jie Yin, 2008 WL 906736, at *10. The New York Labor Law also expressly provides that employees are entitled to recover all unpaid wages. N.Y. Labor Law § 198(3); Chun Jie Yin, 2008 WL 906736, at *6; Jowers v. DME Interactive Holdings, Inc., 2006 WL 1408671, at *9 (S.D.N.Y.2006). Section 663 of the Labor Law expressly authorizes an employee to sue his or her employer to recover unpaid wages otherwise due to him or her under the statute. N.Y. Lab. Law § 663(1). Applying the same reasoning used in the FLSA analysis to the state claims, this Court finds that the undisputed allegations in the complaint and default submissions are sufficient to impose liability on defendants under the NYLL overtime and record-keeping provisions. See Debejian v. Atl. Testing Labs., Ltd., 64 F.Supp.2d 85, 87 n. 1 (N.D.N.Y. 1999) (finding New York Labor Law provisions “substantially similar to the federal scheme” such that its analysis of federal law would apply equally to claims brought under the FLSA and New York law). III. Damages A. Recoverable Damages Plaintiffs who" }, { "docid": "2138883", "title": "", "text": "651(6), the Court easily finds that Choice is an employer for purposes of the New York Minimum Wage Act. The Court also finds that Omogun may be held individually liable for Ethelberth’s claim for overtime under the NYLL. As the Second Circuit recognized in Irizarry, the New York Court of Appeals has not yet answered the question of whether the FLSA’s test for “employer” is the same as for the NYLL. Irizarry, 722 F.3d at 117. Nevertheless, the Court notes that districts in this Circuit “have consistently interpreted the definition of ‘employer’ under the New York Labor Law coexten-sively with the definition used by the FLSA.” Yu Y. Ho v. Sim Enterprises, Inc., No. 11-CV-2855, 2014 WL 1998237, at *10 (S.D.N.Y. May 14, 2014) (citing Moon v. Kwon, 248 F.Supp.2d 201, 236 n. 17 (S.D.N.Y.2002)). The Court finds no reason to depart from this interpretation. Having found that Omogun was an employer under the FLSA, the Court finds that Omogun also qualifies as an employer under the New York Minimum Wage Act. Having resolved the threshold questions of liability in Ethelberth’s favor, the Court finds that there is no dispute of fact regarding Defendants’ failure to pay Ethel-berth overtime compensation at a rate of one and one-half times his regular wage. See Section IV, supra. Accordingly, the Court grants summary judgment to Ethel-berth with respect to his claim for overtime pay in Count Three of the Amended Complaint. VI. Common Law Claims for Breach of Contract and Unjust Enrichment A. Whether Ethelberth’s Common Law Claims are Duplicative Defendants seek dismissal of Ethel-berth’s common law claims for breach of contract (Count One) and unjust enrichment (Count Five), arguing that these claims are duplicative of Ethelberth’s FLSA and NYLL claims. In Defendants’ view, Ethelberth’s state common law claims are duplicative because they “are premised squarely on violations of the FLSA and NYLL and not upon some other agreement between the parties.” (Defs. MSJ Memo at ECF 8-11). Ethelberth opposes, arguing that he may maintain claims in the alternative and that such claims are based on Defendants’ promise that he would be paid" }, { "docid": "2138881", "title": "", "text": "Act. B. Overtime Wages “New York’s Labor Law is the state analogue to the federal FLSA.” Santillan v. Henao, 822 F.Supp.2d 284, 292 (E.D.N.Y.2011). “Although the Labor Law ‘does not require a plaintiff to show either a nexus with interstate commerce or that the employer has any minimum amount of sales,’ it otherwise mirrors the FLSA in compensation provisions regarding minimum hourly wages and overtime[.]” Id. (citing Chun Jie Yin v. Kim, No. 07-CV-1236, 2008 WL 906736, at *4 (E.D.N.Y. Apr. 1, 2008); N.Y. Lab. Law § 652; N.Y. Comp.Codes R. & Regs. tit. 12 § 142-2.2). Accordingly, courts in the Second Circuit have generally applied their analysis of a plaintiffs FLSA claim to a plaintiffs NYLL claim due to the substantial similarity in the provisions. See Kleitman v. MSCK Mayain Olam Habba Inc., No. 11-CV-2817, 2013 WL 4495671, at *3 (E.D.N.Y. Aug. 20, 2013) (citing Santillan, 822 F.Supp.2d at 293). To recover overtime wages under the New York Minimum Wage Act, Ethelberth must prove that he was an “employee” and that Defendants were “employer[s]” as defined by the statute and accompanying regulations. See NYLL § 650 et seq.; N.Y. Comp.Codes R. & Regs. tit. 12 § 142-2.2. An employee under the New York Minimum Wage Act is “any individual employed or permitted to work by an employer in any occupation .... ” NYLL § 651(5). Having already found that Ethelberth was an employee of Choice within the meaning of the FLSA, the Court finds that Ethelberth was also an employee under the NYLL. The NYLL’s definition of an employer is broader than that contained in the FLSA, reaching “any individual, partnership, association, corporation, limited liability company, business trust, legal representative, or any organized group of persons acting as employer.” NYLL § 651(6). While a genuine issue of material fact regarding Choice’s engagement in interstate commerce precluded a determination on Choice’s coverage under the FLSA, interstate commerce is not relevant to an employer’s liability under the NYLL provisions at issue here. See Santillan, 822 F.Supp.2d at 292. Because there is no dispute that Choice “act[ed] as an employer,” NYLL §" }, { "docid": "1738551", "title": "", "text": "MEMORANDUM AND ORDER HURLEY, Senior District Judge: Plaintiffs Janira Torres (“Torres”), Victor Feliciano (“Feliciano”), and Maria S. Fonseca (“Fonseca”) commenced this action, on behalf of themselves and all others similarly situated, asserting that defendant United Healthcare Services, Inc. (“defendant”) deprived its sales representative employees, including plaintiffs, of earned overtime compensation in violation of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (“FLSA”) and the New York Labor Law (“NYLL”). Presently before the Court is defendant’s motion to dismiss the Complaint and to compel individual arbitration of each plaintiffs claims. For the reasons set forth below, defendant’s motion is granted. BACKGROUND The following facts are drawn from the Complaint and the parties’ submissions. Plaintiffs ’ Employment Defendant is an insurance company that operates in New York. Defendant “customarily and regularly deploys” its sales representative employees, including plaintiffs, “to one of [its] fixed sites in order to enroll eligible individuals in a Medicaid pro gram.” (Compl. ¶ 3.) Plaintiffs assert that in those roles they “had little or no discretion in the performance of their duties” and “had no supervisory functions.” (Id. ¶ 44.) Plaintiffs and other sales representatives “work long hours in order to meet aggressive quotas [defendant] imposes on them.” (Id. ¶ 3.) Plaintiffs allege that defendant “had a policy to deprive its sales representatives ... of earned overtime wages by uniformly misclassifying them as exempt from federal and state overtime protections.” (Id. ¶2.) Plaintiffs further allege that defendant failed to record all of the time its employees worked or to maintain certain payroll records as required by the FLSA and NYLL. (Id. ¶ 42.) Torres worked as a sales representative between August 2009 and October 2011. (Id. ¶¶ 48, 50.) During that time, she worked more than 55 hours “in most workweeks” but was never paid “overtime pay at the statutory rate of time and one-half her regular rate of pay” after working 40 hours per week. (Id. ¶¶ 54-56.) Feliciano, who worked as a sales representative between November 2007 and November 2011, also worked more than 55 hours “in most workweeks” while employed" }, { "docid": "19326476", "title": "", "text": "MEMORANDUM AND ORDER J. PAUL OETKEN, District Judge: Plaintiffs, individually and on behalf of all others similarly situated, assert that Defendants Duane Reade, Inc. and Duane Reade Holdings, Inc. (collectively “DR”) violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), and New York Labor Law § 650 et seq. (“NYLL”), by failing to compensate their assistant store managers (“ASMs”) for hours worked in excess of forty hours per week. Plaintiffs now move for class certification of their NYLL claims pursuant to Federal Rule of Civil Procedure 23. For the reasons that follow, Plaintiffs’ motion is granted. I. Factual Background DR owns and manages approximately 250 “retail drug and consumer convenience stores” within New York City and its surrounding metropolitan area. Jacob v. Duane Reade, Inc., No. 11 Civ. 160, 2012 WL 260230, at *1 (S.D.N.Y. Jan. 27, 2012). There are currently around 750 present and former ASMs who were classified by DR as such during the relevant class period. (Memorandum of Law in Support of Motion for Class Certification, Dkt. No. 92 (“Pl.’s Mem.”), at 1, 15; Memorandum of Law in Opposition, Dkt. No. 100 (“Def.’s Opp.”), at 2-3.) All ASMs are classified as exempt from FLSA (Duane Reade Job Description, Fuchs Deck, Dkt. No. 97, Ex. 56.) Moreover, all ASMs are uniformly, and similarly, treated as exempt from the overtime wage protections of the NYLL. (Brooks Deck, Dkt. No. 93, Ex. D (“Costa Tr.”), at 22:3-20.) The NYLL protects employees by requiring their employers to pay a “premium rate of one and one-half times their regular rate of pay for hours worked in excess of 40 in a workweek.” (See Ph’s Mem. at 11.); see also NYLL § 650 et seq.; N.Y. Comp.Codes R. & Regs. Tit. 12, § 142-2.2 (“An employer shall pay an employee for overtime at a wage rate of one and one-half times the employee’s regular rate in the manner and methods provided in and subject to the exemptions of sections 7 and 13[,] of 29 U.S.C. 201 et seq., the Fair Labor Standards Act of 1938, as amended; provided, however," }, { "docid": "2138880", "title": "", "text": "that he saw the administrative process to completion. The record thus fails to establish that Ethelberth has exhausted his administrative remedies. See Winsch v. Esposito Building Specialty, 48 A.D.3d 558, 852 N.Y.S.2d 199, 200 (2008) (affirming summary judgment dismissal of NYLL § 220 claim given lack of proof that any administrative determination had been rendered). Nor will the Court permit Ethelberth to circumvent the statutory requirement to exhaust administrative remedies under NYLL § 220 by simply asserting, without providing proof that should be readily available to him, that he has met the exhaustion requirement. The Court, therefore, grants summary judgment to Defendants on Count Two of the Amended Complaint, and dismisses it from this action. 2. Count Three — Exhaustion of Administrative Remedies Ethelberth brings Count Three of the Amended Complaint pursuant to the New York Minimum Wage Act, NYLL § 650 et seq., and therefore is not required to exhaust administrative remedies before doing so. Accordingly, the Court turns to the issue of whether Ethelberth qualifies for overtime under the New York Minimum Wage Act. B. Overtime Wages “New York’s Labor Law is the state analogue to the federal FLSA.” Santillan v. Henao, 822 F.Supp.2d 284, 292 (E.D.N.Y.2011). “Although the Labor Law ‘does not require a plaintiff to show either a nexus with interstate commerce or that the employer has any minimum amount of sales,’ it otherwise mirrors the FLSA in compensation provisions regarding minimum hourly wages and overtime[.]” Id. (citing Chun Jie Yin v. Kim, No. 07-CV-1236, 2008 WL 906736, at *4 (E.D.N.Y. Apr. 1, 2008); N.Y. Lab. Law § 652; N.Y. Comp.Codes R. & Regs. tit. 12 § 142-2.2). Accordingly, courts in the Second Circuit have generally applied their analysis of a plaintiffs FLSA claim to a plaintiffs NYLL claim due to the substantial similarity in the provisions. See Kleitman v. MSCK Mayain Olam Habba Inc., No. 11-CV-2817, 2013 WL 4495671, at *3 (E.D.N.Y. Aug. 20, 2013) (citing Santillan, 822 F.Supp.2d at 293). To recover overtime wages under the New York Minimum Wage Act, Ethelberth must prove that he was an “employee” and that Defendants were “employer[s]”" }, { "docid": "4997503", "title": "", "text": "responsibilities of an executive, administrative or professional employee.” Id. § 541.601(a)-(b)(1). Employees “customarily and regularly” perform a duty if they perform it more than occasionally but less than constantly. Id. § 541.701. In other words, employees who earn at least $100,000 are exempt from the FLSA’s overtime requirement if they perform at least one exempt administrative duty with some degree of regularity. B. New York and California Overtime Laws Under New York law, as under the FLSA, employees are entitled to overtime pay for every hour they work beyond 40 in a week. New York law also exempts employees who qualify as outside salespersons or administrative employees from the overtime requirement, and it defines and applies these exemptions in the same manner as the FLSA. See 12 N.Y.C.R.R. § 142 — 2.14(c)(5); Galasso v. Eisman, Zucker, Klein & Ruttenberg, 310 F.Supp.2d 569, 575 (S.D.N.Y.2004). California’s wage and hour laws are essentially the same as the FLSA and New York law: employees are entitled to overtime for each hour worked above 40 in a week, provided they do not fall within certain exemptions. California law also exempts employees who qualify as outside salespersons or administrative employees — but the ways in which these exemptions are defined differs slightly. In order to qualify as an outside salesperson, sales activities must account for “more than half’ of the employee’s working time. Cal. Code Regs. Tit. 8, § 11070(2)(J). This “quantitative” test differs slightly from the “primary duty” test contained in the FLSA. Similarly, California’s administrative exemption requires that an employee be “primarily engaged” in administrative tasks rather than having those tasks as his or her “primary duty,” but otherwise it mirrors the federal exemption. Id. § 11070(1)(A) (2Xf). Neither New York nor California law contains an analog to the FLSA’s exemption for highly compensated employees. DISCUSSION III. Summary Judgment Standard of Review Summary judgment is appropriate where the record demonstrates that “there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is material if it" }, { "docid": "4997485", "title": "", "text": "OPINION & ORDER PAUL A. CROTTY, District Judge: This consolidated class action lawsuit raises the question of whether individuals employed as Pharmaceutical Sales Representatives (“Reps”) are entitled to overtime pay under the federal Fair Labor Standards Act (the “FLSA” or “Act”), 29 U.S.C. §§ 201 et seq., and corresponding state wage and hour laws. Plaintiffs in this action are current and former Reps employed by Defendant Novartis Pharmaceuticals Corporation (“NPC”) in New York, California, and other states. They claim they qualify for overtime pay, and seek unpaid overtime wages, under the FLSA, as well as under the corresponding laws of New York and California. NPC contends that Plaintiffs are not entitled to overtime pay because they fall within the “outside sales” and “administrative” exemptions to both the federal and state overtime requirements. NPC also argues that certain members of the Plaintiff class are exempt from the FLSA’s overtime requirement because they qualify as “highly compensated” employees. Both parties have moved for summary judgment, and both claim there are no genuine issues of material fact. Having reviewed the extensive record and heard oral argument from the parties, the Court agrees there are no factual issues, and that judgment as a matter of law is appropriate. Plaintiff Reps are not entitled to overtime compensation because they are exempt from coverage as outside salespersons under the FLSA and state laws, and even if they are not outside salespersons, they are administrative employees and are still exempt. NPC’s motion for summary judgment is therefore GRANTED and Plaintiffs motion for summary judgment is DENIED. BACKGROUND I. Facts Although the parties draw different legal conclusions from the factual record, the material facts themselves are straightforward and essentially undisputed. NPC researches, develops, manufactures, markets, and sells pharmaceutical drugs. It is one of the largest drug manufacturers in the United States, with approximately 13,-000 employees nationwide. More than 6,000 of these employees are Pharmaceutical Sales Representatives. In 2005, Reps earned an average salary of $91,500-meaning that, for the year, NPC spent a total of roughly half a billion dollars on Reps’ salaries. Some Reps earn in excess of" }, { "docid": "3478421", "title": "", "text": "in interstate commerce.” McGuiggan, 84 F.Supp.2d at 480. Relatedly, the Court denies that part of the Defendant’s motion for summary judgment dismissing the Plaintiffs NYLL claim for overtime pay based on the MCA exemption. Fox v. Commonwealth Worldwide Chauffeured Transp. of NY, LLC, 865 F.Supp.2d 257, 268-69 (E.D.N.Y.2012) (“The New York State Department of Labor takes the position that the overtime provisions contained in that law expressly incorporate the FLSA’s exemptions, see 12 N.Y.C.R.R. § 142-2.2. Federal courts have followed the Department’s guidance, applying FLSA exemptions to state Labor Law claims. This includes the motor carrier exemption.”)(internal citation omitted). Further, the Court finds as a matter of law that the MCA exemption does not apply here and that, therefore, the Defendant may not rely on it at the trial to defeat the NYLL claim. C. The Wage Notice and Payroll Statement Claims The Defendant also seeks summary judgment dismissing the Plaintiffs wage notice and payroll statement claims under the New York Labor Law. “As of April 9, 2011, an employer must provide an employee with a wage notice within ten business days of the start of employment and then annually every February thereafter.” Yuquilema v. Manhattan’s Hero Corp., No. 13-CV-461 (WHP)(JLC), 2014 WL 4207106, at *10 (S.D.N.Y. Aug. 20, 2014) report and recommendation adopted, No. 13CV461, 2014 WL 5039428 (S.D.N.Y. Sept. 30, 2014). The notice must include, among other items, information about the rate and basis of pay, any tip or other allowances claimed by the employer, and the name and principal address of the employer, and it must be provided in English or in the primary language of the employee. See NYLL § 195(l)(a). “If any employee is not provided within ten business days of his or her first day of employment a notice ... he or she may recover in a civil action damages of fifty dollars for each work week that the violations occurred or continue to occur, but not to exceed a total of two thousand five hundred dollars.” NYLL § 198(l-b). Here, the Plaintiff commenced his employment in 2007, four years prior to the time" }, { "docid": "4150941", "title": "", "text": "F.2d 335, 336 (2d Cir.1978) (notification of putative plaintiffs “comports with the broad remedial purpose of the Act, which should be given a liberal construction, as well as with the interest of the courts in avoiding multiplicity of suits”). II. Class Action Certification A. Supplemental Jurisdiction In addition to his federal FLSA claims, plaintiff alleges that defendants’ pay deductions also violated New York’s Labor Law. Both “[t]he FLSA and New York state labor laws entitle employees to time-and-a-half overtime for hours worked in excess of forty hours per week.” Noble v. 93 University Place Corp., 303 F.Supp.2d 365, 376 (S.D.N.Y.2003) (citing 29 U.S.C. § 207(a)(1); N.Y. Lab. L. § 160; 12 N.Y.C.R.R. § 142-2.2). That is so because New York State regulations provide that “[a]n employer shall pay an employee for overtime ... in the manner and methods provided in and subject to the exemptions of sections 7 and 13 of ... the Fair Labor Standards Act of 1938, as amended .... In addition, an employer shall pay employees subject to the exemptions of section 13 of the Fair Labor Standards Act, as amended ....” Plaintiff has moved to certify his state law claims as a class action under Rule 23. In opposition to the motion, defendant contends that the court should decline to exercise supplemental jurisdiction over these claims because they raise novel and complex issues of state law. Defendant also argues that Rule 23’s requirements for class certification have not been met. In support of its contention that plaintiffs state law claims present “novel and complex” issues of New York law, defendant states that its “research reveals that there is not a single case, state or federal, addressing whether the salary basis test applies to claims under the New York State Labor Law.” Defendant’s Memorandum of Law (Dkt. # 36) at 15. Apparently defendant’s research did not unearth Dingwall v. Friedman Fisher Associates, P.C., 3 F.Supp.2d 215, 220 (N.D.N.Y.1998), in which the court stated that “New York law differs from federal law ... in that to establish the [overtime] exception, the employer need not satisfy a ‘salary’ test," }, { "docid": "2138899", "title": "", "text": "unless the employer's conduct is “willful/' in which case, a three-year statute of limitations applies. 29 U.S.C. § 255(a). If Ethelberth cannot establish willfulness and thereby avail himself of the three-year statute of limitations, 'his FLSA claim will be barred. (See Defs. Opp. at ECF 7 n. 3 (noting a two-year statute of limitations would limit Ethel-berth’s claims to September 28, 2010 but that Ethelberth left Choice in June 2010)). . Because the issue of whether an employer is covered by the FLSA may be dispositive of the entire action, some courts have deferred ruling on the applicable statute of limitations at the summary judgment stage where there exist disputed issues of fact on this threshold issue. See, e.g., Cooke v. General Dynamics Corp., 993 F.Supp. 56, 65-66 (D.Conn.1997) (deferring ruling on whether defendants willfully violated the FLSA due to outstanding issues regarding whether defendants violated the FLSA in the first place). . As discussed supra in footnote 1, although Counts Two and Three both purport to seek unpaid straight time wages and overtime, Ethelberth's summary judgment briefing makes clear that he is only seeking overtime pursuant to Count Three, which pleads a cause of action under NYLL § 650 et seq. (the New York Minimum Wage Act). (PL Memo at ECF 26-28). Although Ethelberth continues to seek both straight time wages and overtime under Count Two, which pleads a cause of action under Article 6 of the New York Labor Law, the Court need not, and does not, address the duplicative overtime claim in Count Two because of the Court’s decision to grant summary judgment to Ethel-berth on his overtime claim in Count Three. In addition, because Ethelberth currently seeks summary judgment only as to Defen-’ dants’ liability, the Court need not address his claims for liquidated damages, pre-judgment interest, and attorneys' fees and costs in both counts at this time. .New York’s overtime requirement is codified in its regulations: “An employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate in the manner and methods provided in and" }, { "docid": "19504972", "title": "", "text": "foregoing reasons, we AFFIRM the judgment of the district court. We follow the district court's ruling in setting forth facts here that relate to Flood and not to the other more than 100 plaintiffs who have joined in this action. After the district court entered summary judgment against Flood, it granted summary judgment as well against the remaining plaintiffs after they declined the district court's invitation to set forth any distinguishing facts for purposes of their own claims. S.A. 19. Although the agreement he signed characterized him as an independent contractor, the parties do not dispute for present purposes that Flood was an employee within the meaning of the FLSA and NYLL. See Glatt v. Fox Searchlight Pictures, Inc. , 811 F.3d 528, 534 (2d Cir. 2016) (noting that \"[t]he strictures of both the FLSA and NYLL apply only to employees\"). Count One of the complaint alleges a violation of the FLSA for failure to pay minimum wage and overtime. Count Two of the complaint alleges a parallel violation of the NYLL. Count Three of the complaint alleges a violation of the NYLL for failure to pay wages for each hour worked and failure to pay wages weekly. Section 3(k) of the FLSA specifies that the terms \"sale\" or \"sell\" include \"any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition.\" 29 U.S.C. § 203(k). For purposes of the outside salesman exemption, there is no need to separately discuss New York Labor Law, because as we have previously concluded it tracks the FLSA. See Gold v. New York Life Ins. Co. , 730 F.3d 137, 145 (2d Cir. 2013) (citing 12 NYCRR § 142-2.2 (noting that New York Labor Law's overtime provision is subject to FLSA exemptions) ); NYLL § 651(5). The Supreme Court's decision in Christopher abrogated our ruling in In re Novartis Wage & Hour Litig. , 611 F.3d 141 (2d Cir. 2010), which had concluded on similar facts that pharmaceutical sales representatives were not within the scope of the outside salesman exemption, in large part because they did not actually consummate a" }, { "docid": "11972179", "title": "", "text": "purposeful misclassification of its drivers as independent contractors instead of employees.” (Ortega Compl. ¶¶ 4, 89.) The court does not read these allegations as a basis of the conduct underpinning Ortega’s gratuity claim. Whether Ortega was indeed misclassified as an independent contractor goes to the applicability of NYLL, which does not apply to independent contractors. . While it is admittedly unclear from the text of the Sarniento opinion whether there was a separate charge, a review of the parties’ briefing in the Court of Appeals shows that there was not. Br. for Defs.-Resps., Samiento, 883 N.E.2d 990, 2007 WL 4938098, at *28 (\"[no] representation as to the amount of the ‘gratuity’ that is included in the [] ticket price”); Rep. Br. for Pls.-Apps., id., at *28-29 (\"percentage of the bill attributable to the ‘gratuity’ is not expressly stated”). . While the Second Circuit's analysis in De-Jesus focuses on the Fair Labor Standards Act, the opinion states that \"[i]n light of the fact that ‘[t]he relevant portions of New York Labor Law do not diverge from the requirements of the FLSA,’ our conclusions below about the FLSA allegations ‘appl[y] equally to [the NYLL] state law,claims.’ Dejesus, 726 F.3d at 89 n.5 (citing Whalen v. J.P. Morgan Chase & Co., 569 F.Supp.2d 327, 329 n.2 (W.D.N.Y. 2008)): see also Lopez-Serrano v. Rockmore, 132 F.Supp.3d 390, 403 (E.D.N.Y. 2015) (\"[T]he Court notes that the pleading standard applicable to overtime claims under the NYLL is analytically identical to its federal law counterpart under the FLSA,”). The regulation under which Ortega claims relief confirms this point. N.Y. Comp. Codes R. & Regs., tit. 12, § 142-2.2 (\"An employer shall pay an employee for overtime at a wage rate of one and one-half times the employee’s regular rate in the manner and methods provided in and subject to the exemptions of ... the Fair Labor Standards Act.”) . As to Ortega’s overtime claim and both Ortega and Mumin's minimum wage claims, Uber argues that Plaintiffs, failed to state that they were performing compensable work for Uber and faults Plaintiffs for failing to break down what they" }, { "docid": "19251091", "title": "", "text": "541.100 (executive), 541.200 (administrative), 541.300 (professional). Defendants do not claim that either co-managers or department managers could be exempt as a professional employee. . New York's overtime provisions expressly incorporate the FLSA exemptions. 12 N.Y.C.R.R. § 142-2.2. Courts regularly look to the FLSA when considering the scope of overtime exemptions under the NYLL. See Zheng v. Liberty Apparel Co., 355 F.3d 61, 78 (2d Cir.2003); Debejian v. Atl. Testing Labs., Ltd., 64 F.Supp.2d 85, 87 n. 1 (N.D.N.Y. 1999); Lopez v. Silverman, 14 F.Supp.2d 405, 411 n. 4 (S.D.N.Y.1998). Like the FLSA, the NYLL white collar exemption requires a \"salary of not less than ... [a fixed amount].” 12 N.Y.C.R.R. § 142-2.14(c)(4)(i)(e). In Torres I, the Court held that, under the NYLL, \"salary\" means \"receipt of fixed, regular compensation” that is \"not subject to weekly variation by hours worked.\" 2006 WL 2819730, at *13; see also Definition of \"Salary,” Op. N.Y. Dep't of Labor, File No. RO-06-0005 (Mar. 30, 2006) (submitted as Neilan Decl. Ex. JJJJ). Accordingly, the ensuing analysis focuses solely on federal law, but applies with equal force to Plaintiff's claims under New York State law. . The Court need not address separately Plaintiffs’ alternate contention that Gristede’s maintains an employment policy that creates a significant likelihood of pay deductions. (P. Mem. at 14.) Though the Supreme Court, in Auer, held that the exemption does not apply \"if there is either an actual practice of making [impermissible] deductions or an employment policy that creates a 'significant likelihood’ of such deductions,” 519 U.S. at 461, 117 S.Ct. 905 (emphasis added), the policy inquiry is ill-suited for the case at bar. The policy test was designed to alleviate somewhat the evidentiary burden on employees who are “subject to,” but have not yet suffered, impermissible deductions. Id. (noting that this approach \"rejects a wooden requirement of actual deductions”); see also Yourman, 229 F.3d at 130 (“Actual deductions from pay are [not] necessary for an employee to be found non-exempt.”). Here, however, Plaintiffs' chief argument is not that co-managers and department managers labor under the threat of impermissible salary deductions per Gristede's" } ]

[ { "docid": "6279702", "title": "", "text": "Title IX’s enforcement scheme fully addresses her constitutional claims against the School District and School Board. Consequently, we hold that plaintiff may not maintain her § 1983 claim and thereby bypass the comprehensive remedial scheme created in Title IX. In so holding, we join the Third and Seventh Circuits in recognizing no constitutional rights exception to the Sea Clammers doctrine. These circuits have held that a § 1983 claim based on the Equal Protection Clause is subsumed by Title IX. See Waid v. Merrill Area Public Sch., 91 F.3d at 862; Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2d at 789. We agree with this view. Having already presented her Title IX cause of action to a jury and lost, Bruneau is now relegated to challenging matters that occurred at her Title IX trial. II Appeal From the Title IX Verdict A. The Notice Element of the Jury Charge In her brief to this Court and at oral argument, plaintiff challenges the district court’s jury charge on two grounds. She first alleged it was error to instruct the jury that actual notice — as opposed to constructive notice — must be proved. Since that time, however, the Supreme Court has ruled that a high school student, who had a sexual relationship with a teacher but did not report it to school officials, could recover damages from the school district only if it had actual notice of and was deliberately indifferent to the teacher’s misconduct. See Gebser v. Lago Vista Indep. Sch. Dist., — U.S.-, 118 S.Ct. 1989, 2000, 141 L.Ed.2d 277 (1998). In light of this ruling, Bruneau’s counsel advised this panel by letter dated June 26, 1998 that the Supreme Court opinion answers the question of what is the appropriate standard of notice, and therefore we must affirm the district court’s holding on that issue. We agree. Bruneau’s second ground for attack is that the district court erred by limiting the class of persons eligible to receive notice on behalf of the School District to William Parker, Deborah Joyal-Reinisch and Lynda Race. Bruneau contends the general verdict for" } ]

[ { "docid": "11667792", "title": "", "text": "a school or even stays home for a few days in response to another student's teasing might allege that he or she has been \"denied” all of the benefits of the program. Because different students may react to the same behavior with varying degrees of discomfort, courts should consider whether a student’s claim that he or she was denied the benefits of an educational program is objectively reasonable. . . Minn. R. 3525.2470, subp. 3. . National Sea Clammers narrowed the Court's prior holding in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), that section 1983 authorizes claims to redress violations by state officials of rights that federal statutes create. . Compare Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 722-24 (6th Cir.1996), and Seamons v. Snow, 84 F.3d 1226, 1233-34 (10th Cir.1996) (holding Sea Clammers doctrine inapplicable to Title IX claims brought under section 1983), with Bruneau ex rel. Schofield v. South Kortright Cent. Sch. Dist., 163 F.3d 749, 757 (2nd Cir.1998), Waid v. Merrill Area Pub. Schs., 91 F.3d 857, 862-63 (7th Cir.1996), and Williams v. Sch. Dist. of Bethlehem, 998 F.2d 168, 176 (3rd Cir.1993) (holding Sea Clammers doctrine applicable). . Plaintiff notes that the Ninth Circuit reached the opposite conclusion in Oona v. McCaffrey, 143 F.3d at 477. The court in Oona interpreted Franklin to hold that, \"Title VII standards apply to hostile environment claims under Title IX.” The court further noted that in a previous Title VII decision the Ninth Circuit recognized that hostile environments include peer harassment. Based on these precedents the court concluded that Franklin clearly established a student’s right to be free from peer harassment under Title IX. The error in the Oona court’s reasoning became apparent when the Supreme Court explicitly held in Gebser that Title VII standards do not apply to Title IX claims. Gebser, 118 S.Ct. at 1995-97. For this reason, the Court declines to follow Oona. . Jane Doe A. thus requires courts to dismiss claims against a supervisor based on failure to discipline a single incident of subordinate misconduct, even" }, { "docid": "10662224", "title": "", "text": "we remain bound by Lillard. We see nothing in Rancho Palos Verdes that requires modification of Lillard or its reasoning, even though, as MHSAA notes, three other circuits have held that Congress intended Title IX to be exclusive. See Bruneau v. South Kortright Cent. Sch. Dist., 163 F.3d 749, 756-59 (2d Cir.1998); Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 862-63 (7th Cir.1996); Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2d 779, 789 (3d Cir.1990). Unlike this court in Lillard, the Second, Third, and Seventh Circuits declined to distinguish Sea Clam-mers on the basis that the Title IX cases concerned application of § 1983 to enforce independent constitutional rights rather than federal statutory law. See, e.g., Bruneau, 163 F.3d at 757 (“We see nothing in Sea Clammers that would support a constitutional rights exception.”). Those circuits also held that because the Supreme Court concluded that Title IX contains an implied damages remedy, see Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), Title IX “gives plaintiffs access to the full panoply of judicial remedies.” See Waid, 91 F.3d at 862-63 (holding that such access indicates Congress’s intent to preclude reliance on § 1983). On the other hand, MHSAA fails to recognize the cases from the Eighth and Tenth Circuits that have agreed with this court’s holding in Lillard. See Crawford, 109 F.3d at 1284; Seamans, 84 F.3d at 1234. The fact that the courts of appeal are evenly split on the issue of whether Congress intended Title IX to provide a complete remedy bolsters the conclusion that the GVR in the present case did not imply that this court should reconsider Lillard. Even if the Supreme Court thought Lillard was wrongly decided and attempted to cure the defect through a GVR in the present case, the decisions of the Eighth and Tenth Circuits would be unaffected — meaning that the circuit split would continue. Because we have determined that Dillard is controlling precedent, we need not extol its virtues in order to reach a decision in the present case. We" }, { "docid": "11667791", "title": "", "text": "student sexual harassment. . The Eleventh Circuit’s reasoning in Davis, that student-student harassment is not actionable under Title IX because Title IX provides no notice to schools that by accepting funds they would accept responsibility for remedying such harassment, is directly undermined by the Supreme Court's findings in Franklin and Gebser that teacher-student harassment is actionable. Neither form of harassment is explicitly mentioned in either the text of Title IX, see 20 U.S.C. § 1681(a), or its legislative history, see Davis, 120 F.3d at 1395-97. . See Gebser, 118 S.Ct. at 1998 (discussing the concern that recipients of federal funds have notice of potential liability in statutes enacted pursuant to Congress's power under the Spending Clause); Pennhurst, 451 U.S. at 28-29, 101 S.Ct. 1531 (limiting monetary damages under Spending Clause statutes because of the concern that receiving entities lack notice that they will be liable for such damages); Franklin, 503 U.S. at 74-75, 112 S.Ct. 1028 (stating that the notice problem does not arise when a claimant alleges intentional discrimination). . Any student who leaves a school or even stays home for a few days in response to another student's teasing might allege that he or she has been \"denied” all of the benefits of the program. Because different students may react to the same behavior with varying degrees of discomfort, courts should consider whether a student’s claim that he or she was denied the benefits of an educational program is objectively reasonable. . . Minn. R. 3525.2470, subp. 3. . National Sea Clammers narrowed the Court's prior holding in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), that section 1983 authorizes claims to redress violations by state officials of rights that federal statutes create. . Compare Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 722-24 (6th Cir.1996), and Seamons v. Snow, 84 F.3d 1226, 1233-34 (10th Cir.1996) (holding Sea Clammers doctrine inapplicable to Title IX claims brought under section 1983), with Bruneau ex rel. Schofield v. South Kortright Cent. Sch. Dist., 163 F.3d 749, 757 (2nd Cir.1998), Waid v. Merrill Area Pub." }, { "docid": "2442115", "title": "", "text": "of this Court to analyze how, if at all, the Sea Clammers doctrine applies when section 1983 is tested against Title IX. The School Defendants argue that, under the Sea Clammers doctrine, the “remedial devices” provided in Title IX are “sufficiently comprehensive” to preclude a section 1983 action arising out of the same factual circumstances. This argument is supported by the opinions of three United States Courts of Appeals that have discerned a Congressional intent to preclude suit under section 1983. In so holding, these courts include the Franklin implied private right of action for monetary damages among Title IX’s “remedial devices.” See Bruneau v. South Kortright Central Sch. Dist., 163 F.3d 749, 757 (2d. Cir.1998); Waid v. Merrill Area Pub. Schs., 91 F.3d 857, 862-63 (7th Cir.1996); Williams v. School Dist. Of Bethlehem, 998 F.2d 168, 176 (3rd Cir.1993). On the other hand, by not including the implied right of action for monetary damages within Title IX’s remedial scheme, three other circuits have held that there is no preclusion. See Crawford v. Davis, 109 F.3d 1281, 1284 (8th Cir.1997); Seamons v. Snow, 84 F.3d 1226, 1234 (10th Cir.1996); Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 723 (6th Cir.1996). Sea Clammers instructs courts to search out a “congressional intent” to supplant section 1983 actions. See Sea Clammers, 453 U.S. at 20, 101 S.Ct. 2615. This Court concludes that the Franklin implied private right of action necessarily should be considered among Title IX’s remedial devices for the purposes of the Sea Clam-mers analysis. In fact, this Court has even gone so far as to extend the implied private right of action under Title IX to permit suit for punitive damages against a municipal entity under certain egregious circumstances. • See section IV, supra. For this Court to ignore the reach of the Title IX private right of action when conducting the Sea Clammers analysis would undermine the Supreme Court’s discovery in Franklin of a “congressional intent” to create a private right of action under Title IX in the first place. This the Court cannot do. C. Preemption Applied:" }, { "docid": "18071791", "title": "", "text": "in two cases that provide the entire basis for Stegall’s argument and the district court’s ruling. They are Waid v. Merrill Area Public Schools, supra, 91 F.3d at 862-63, and Boulahanis v. Board of Regents, supra, 198 F.3d at 639-40. In Waid a teacher, and in Boulahanis student athletes, complaining of sex discrimination, brought suit against the educational institution itself under Title IX, and also against employees of the institution under section 1983, and we held that the sea-elammers doctrine barred the section 1983 claims. The individual defendants in the two cases, however, were not teachers or other ordinary employees. In Waid they were the school district’s director of curriculum and the principal of the school that had passed over Waid for a permanent appointment, and we described them as “officers” and “officials” of the school district. 91 F.3d at 862. In Boulahanis, similarly, the individual defendants are described as university “officials,” though without further specification. 198 F.3d at 639. It is easy to see why Title IX might be thought to supplant section 1983 suits against the school officials responsible for the policy or practice that violates Title IX, though not all courts agree. Compare Pfeiffer v. Marion Center Area School District, 917 F.2d 779, 789 (3d Cir.1990), which we followed in Waid and Boulahanis, and also Bruneau ex rel. Schofield v. South Kortright Central School District, 163 F.3d 749, 756-59 (2d Cir.1998), with Crawford v. Davis, 109 F.3d 1281, 1283-84 (8th Cir.1997); Seamons v. Snow, 84 F.3d 1226, 1233-34 (10th Cir.1996), and Lillard v. Shelby County Board of Education, 76 F.3d 716, 722-24 (6th Cir.1996), all rejecting the holding of Pfeiffer. The issue was expressly left open by the Supreme Court in Gebser. 524 U.S. at 292, 118 S.Ct. 1989. Title IX, especially having been interpreted in Cannon to provide a damages remedy, furnishes all the relief that is necessary to rectify the discriminatory policies or practices of the school itself. But it is quite otherwise in a case such as this, in which the malefactor is a teacher whose malefaction is not a policy or a practice" }, { "docid": "1730739", "title": "", "text": "been able to locate Anastasio’s whereabouts for international service. (Doc. # 28, p. 1). . Although Plaintiff's Eighth Claim for Relief is brought pursuant to 20 U.S.C. § 1681 et seq. (Doc. # 22, p. 23), the court believes that Plaintiff's intention was to bring it pursuant to 42 U.S.C. § 1983. Defendants, in their Motion to Dismiss, refer to Plaintiff's Eighth Claim for Relief as being brought pursuant to 42 U.S.C. § 1983 (Doc. # 27, p. 4), and Plaintiff, in his opposition, refers to the claim as being brought under 42 U.S.C. § 1983 (Doc. # 28, p. 13). Thus, the court will assume that Plaintiff meant to bring his Eighth Claim for Relief pursuant to 42 U.S.C. § 1983 and proceed in its analysis based upon this assumption. . Plaintiff also brought claims, not at issue in this Motion to Dismiss, against Washoe County School District for violations of Title IX for deprivation of educational benefits on the basis of sex (Fifth Claim for Relief) and for allowing peer harassment on the basis of sex (Sixth Claim for Relief) (Doc. # 22, pp. 20-21). Plaintiff also brought various state law tort claims for Negligence (Ninth Claim for Relief), Negligent Training and Supervision (Tenth Claim for Relief), Intentional Infliction of Emotional Distress (Eleventh Claim for Relief), and Negligent Infliction of Emotional Distress (Twelfth Claim for Relief). (Id. at 24-27). . Pfeiffer v. Marion Center Area School Dist., 917 F.2d 779 (3rd Cir.1990). . Waid v. Merrill Area Public Schools, 91 F.3d 857 (7th Cir.1996); Boulahanis v. Board of Regents, 198 F.3d 633 (7th Cir.1999) (following Waid). . Bruneau v. South Kortright Central School Dist., 163 F.3d 749 (2nd Cir.1998). . Lillard v. Shelby County Bd. of Educ., 76 F.3d 716 (6th Cir.1996). . Crawford v. Davis, 109 F.3d 1281 (8th Cir.1997). . Seamons v. Snow, 84 F.3d 1226 (10th Cir.1996)." }, { "docid": "7585253", "title": "", "text": "WL 949460, *6-*7 (N.D.N.Y.2000) (finding no Title IX preclusion of Section 1983 action as to individual defendants because such defendants are not subject to suit under Title IX). At least two circuits have reached a contrary conclusion. The Third and Seventh Circuits have both concluded that Title IX’s enforcement scheme is sufficiently comprehensive so as to preclude Section 1983 suits against individual defendants. See Pfeiffer v. Marion Center Area School District, 917 F.2d 779, 789 (3d Cir.1990); Waid v. Merrill Area Public Schools, 91 F.3d 857, 862-63 (7th Cir.1996). The Seventh Circuit reasoned on this point that Congress’ decision to enforce Title IX through the granting or withholding of federal funding “indicates that Congress intended to place the burden of compliance with civil rights law on educational institutions themselves, not on the individual officers associated with those institutions.” Id. The reasoning in Cinquanti which holds that the remedial scheme of Title IX is not “sufficiently comprehensive” as to the indi vidual defendants so as to preclude liability under Section 1983 is adopted. ' Such defendants are not amenable to suit under Title IX, so it cannot be said that Title IX provides plaintiffs comprehensive remedy as against the individual defendants. Accordingly, the individual defendants’ motion to dismiss plaintiffs Section 1983 claims based on the denial of equal protection must be denied. D. State Law Claims Plaintiff also sues all defendants for state law claims under the New York Human Rights Law and the equal protection clause of the New York Constitution, as well in tort for defamation and intentional infliction of emotional distress. Defendants raise several arguments against the validity of these state law causes of action. 1. Eleventh Amendment Immunity and Qualified Immunity The SUNY defendants argue that plaintiffs state law claims are barred by the Eleventh Amendment as to SUNY and SUNY-New Paltz, and by qualified immunity as to the individual defendants. Defendants argue that there has been no waiver of Eleventh Amendment immunity by New York as to these causes of action. Plaintiff argues in opposition that the New York Court of Appeals decision, Brown v. State," }, { "docid": "18071790", "title": "", "text": "a private right to enforce it, but indeed acting contrary to Congress’s intent. So, in the sea-clam-mers case, the Court decided to limit Thi-boutot: after rejecting the plaintiffs’ statutory claims, the Court held that section 1983 was not an available alternative because “it is hard to believe that Congress intended to preserve the § 1983 right of action when it created so many specific statutory remedies.” 453 U.S. at 20, 101 S.Ct. 2615. The completeness of those remedies showed that Congress “intended to supplant any remedy that otherwise would be available under § 1983.” Id. at 21, 101 S.Ct. 2615. The sea-clammers doctrine has been applied in a variety of contexts since its creation. See, e.g., PrimeCo Personal Communications, Ltd. Partnership v. City of Mequon, 352 F.3d 1147, 1151-53 (7th Cir.2003); Lollar v. Baker, 196 F.3d 603, 608-10 (5th Cir.1999); Mattoon v. City of Pittsfield, 980 F.2d 1, 5-6 (1st Cir.1992); Zombro v. Baltimore City Police Dept., 868 F.2d 1364, 1366-70 (4th Cir.1989). Of particular significance for the present case is our application of it in two cases that provide the entire basis for Stegall’s argument and the district court’s ruling. They are Waid v. Merrill Area Public Schools, supra, 91 F.3d at 862-63, and Boulahanis v. Board of Regents, supra, 198 F.3d at 639-40. In Waid a teacher, and in Boulahanis student athletes, complaining of sex discrimination, brought suit against the educational institution itself under Title IX, and also against employees of the institution under section 1983, and we held that the sea-elammers doctrine barred the section 1983 claims. The individual defendants in the two cases, however, were not teachers or other ordinary employees. In Waid they were the school district’s director of curriculum and the principal of the school that had passed over Waid for a permanent appointment, and we described them as “officers” and “officials” of the school district. 91 F.3d at 862. In Boulahanis, similarly, the individual defendants are described as university “officials,” though without further specification. 198 F.3d at 639. It is easy to see why Title IX might be thought to supplant section 1983" }, { "docid": "21110296", "title": "", "text": "5 of the Fourteenth Amendment expressly grants Congress broad authority to enforce the amendment’s substantive provisions “by appropriate legislation.” U.S. Const, amend. XIV, § 5; see also Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976). Because the Supreme Court has repeatedly held that those substantive provisions proscribe gender discrimination in education, see, e.g., United States v. Virginia, — U.S. -, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996), we are unable to understand how a statute enacted specifically to combat such discrimination could fall outside the authority granted to Congress by § 5. B. We next address the defendants’ argument that Title IX subsumes Ms. Crawford’s § 1983 claims because of the holding in Middlesex County Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20, 101 S.Ct. 2615, 2626, 69 L.Ed.2d 435 (1981). The Sea Clammers doctrine, the defendants contend, precludes Ms. Crawford’s § 1983 claims (based on Title IX and the Equal Protection Clause) for injunctive relief against UCA and defendants Williams and Thompson in their official capacities, and for monetary damages against defendants Williams and Davis in their individual capacities, leaving only Ms. Crawford’s Title IX claims against UCA and defendants Williams, Thompson, and Davis in their official capacities. The question of whether Title IX subsumes § 1983 claims is one of first impression in our court, and we are faced with a split of authority in other circuits. The Sixth and Tenth Circuits have held that Title IX does not subsume § 1983 claims, see, respectively, Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 722-24 (6th Cir.1996), and Seamons v. Snow, 84 F.3d 1226, 1233-34 (10th Cir.1996), while the Third and Seventh Circuits have held that it does, see, respectively, Williams v. School Dist. of Bethlehem, 998 F.2d 168, 176 (3rd Cir.1993), cert. denied, 510 U.S. 1043, 114 S.Ct. 689, 126 L.Ed.2d 656 (1994), and Waid v. Merrill Area Pub. Schs., 91 F.3d 857, 862-63 (7th Cir.1996). In Sea Clammers, 453 U.S. at 20, 101 S.Ct. at 2626, the Supreme Court held that if the remedial devices" }, { "docid": "6279696", "title": "", "text": "includes a statute’s legislative history. See, e.g., Smith, 468 U.S. at 1009, 104 S.Ct. 3457 (using the provisions of a statute and its legislative history to determine whether Congress intended to limit claims to those that could be brought under the statute’s administrative and judicial mechanism). Here, the Supreme Court has found that Title IX’s legislative history clearly indicates Congress’ plan to create a private right of action in the statute as a remedy to secure the enforcement of its provisions. See Cannon, 441 U.S. at 694, 99 S.Ct. 1946. Thus, we include this implied right of action as part of Title IX’s enforcement scheme. See also Waid v. Merrill Area Public Schools, 91 F.3d 857, 862-63 (7th Cir.1996); Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2d 779, 789 (3d Cir.1990). In sum, given Title IX’s administrative and judicial remedies, we believe it was Congress’ scheme that a claimed violation of Title IX be pursued under Title IX and not § 1983. B. Section 1988 Claim Alleging Violations of the Equal Protection Clause Bruneau further alleges that even if Title IX is sufficiently comprehensive to preclude her § 1983 claim for violations of that statute, Title IX does not bar her § 1983 claim for violations of the Equal Protection Clause of the Fourteenth Amendment. She maintains this constitutional right provides an independent basis for maintaining her § 1983 claim. Plaintiff finds support for this proposition in the Sixth, Eighth and Tenth Circuits, which have carved out an exception to the Sea Clammers doctrine for constitutional rights. These circuits allow a Title IX plaintiff to bring a separate § 1983 action predicated on a violation of a constitutional right. For example, the Eighth Circuit concluded that Sea Clammers does not prevent a Title IX plaintiff from asserting an additional cause of action under § 1983 for violations of the Equal Protection Clause, even when the same set of facts gives rise to the claimed violation of the statutory right. See Crawford v. Davis, 109 F.3d at 1284. Similarly, the Sixth Circuit declined to apply Sea Clam-mers to a case" }, { "docid": "10662223", "title": "", "text": "did not alter the vitality of Lillard. In Rancho Palos Verdes, as in the Sea Clammers and Smith cases, the primary question was whether Congress intended to foreclose reliance on § 1983. The Court in each of these cases focused on the extent of the rights and remedies provided in the statutory scheme. In those cases, the statutes at issue provided detailed means by which the private parties could seek redress, either through judicial or administrative channels. And in each of those cases, Congress neglected to explicitly authorize the types of remedies available under § 1983. The lodestar, in all cases, is what Congress intended. This court in Lillard addressed that precise inquiry as it related to Title IX and held that Congress did not intend to preclude recovery under § 1983. 76 F.3d at 723. “[Ujnless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision,” Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985), we remain bound by Lillard. We see nothing in Rancho Palos Verdes that requires modification of Lillard or its reasoning, even though, as MHSAA notes, three other circuits have held that Congress intended Title IX to be exclusive. See Bruneau v. South Kortright Cent. Sch. Dist., 163 F.3d 749, 756-59 (2d Cir.1998); Waid v. Merrill Area Pub. Sch., 91 F.3d 857, 862-63 (7th Cir.1996); Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2d 779, 789 (3d Cir.1990). Unlike this court in Lillard, the Second, Third, and Seventh Circuits declined to distinguish Sea Clam-mers on the basis that the Title IX cases concerned application of § 1983 to enforce independent constitutional rights rather than federal statutory law. See, e.g., Bruneau, 163 F.3d at 757 (“We see nothing in Sea Clammers that would support a constitutional rights exception.”). Those circuits also held that because the Supreme Court concluded that Title IX contains an implied damages remedy, see Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992), Title IX “gives" }, { "docid": "13128388", "title": "", "text": "liability arises only to the extent that they were responsible for implementing an unlawful practice or policy. Regarding the effect of a Title IX claim, there is a crucial line in our case law between suits against the alleged malefactor who is not shielded from section 1983 liability, see, e.g., Delgado, 367 F.3d at 674, and suits against school officials implementing the challenged education practice or policy who are shielded from individual liability, see, e.g., Boulahanis v. Bd. of Regents, 198 F.3d 633, 639 (7th Cir.1999). In the latter instance, we have held that a section 1983 claim is not cognizable because Title IX provides comprehensive recourse (the loss of federal funds) for the discriminatory practice or policy. “Congress intended to place the burden of compliance with civil rights law on educational institutions themselves, not on the individual officials associated with those institutions.” Waid v. Merrill Area Pub. Schs., 91 F.3d 857, 862 (7th Cir.1996). The Does contend the district court erroneously held that Title IX preempts their section 1983 claims against defen dants-appellees Cain, Fletcher, Hansen, and Shepard. Importantly, the Does’ claims against these school officials are essentially identical to their claims against the school district: specifically with respect to African American boys, the school district (through the school officials) failed to follow its sexual harassment policy, resulting in a widespread practice of deliberate indifference toward the plight of Smith’s victims. Because the Does’ claims against the school officials relates solely to their implementation of district policy, we conclude that Title IX provides sufficient statutory recourse for the discrimination. Therefore, we affirm the grant of summary judgment in favor of school officials Cain, Fletcher, Hansen, and Shepard in their individual capacities. The third relevant principle of Delgado is simple enough: Title IX does not immunize from section 1983 liability a defendant who uses his position in a federally funded education program to sexually harass and abuse students. See Delgado, 367 F.3d at 674. Title IX has two important anti-discrimination objectives: “to avoid the use of federal resources to support discriminatory practices” and “to provide individual citizens effective protection against" }, { "docid": "13128387", "title": "", "text": "applicable here. First, with respect to claims against a recipient of federal funds, we stated that “Title IX ... furnishes all the relief that is necessary to rectify the discriminatory policies or practices of the school itself.” Delgado, 367 F.3d at 674. To be sure, the question of whether Title IX preempted a section 1983 suit against a federally funded education program was not before us in Delgado because, in that case, the college student did not assert a section 1983 claim against her university. Thus, we bring to the fore in this case what was arguably dicta in Delgado: under the sea clammers doctrine, there is no parallel right of action under section 1983 against a federally funded education program where Title IX provides a sufficient private right of action for the allegedly unlawful policy or practice. Therefore, we affirm the district court’s grant of summary judgment to the school district on the Does’ section 1983 claims against it. The second principle of Delgado relates to section 1983 claims against school officials whose alleged liability arises only to the extent that they were responsible for implementing an unlawful practice or policy. Regarding the effect of a Title IX claim, there is a crucial line in our case law between suits against the alleged malefactor who is not shielded from section 1983 liability, see, e.g., Delgado, 367 F.3d at 674, and suits against school officials implementing the challenged education practice or policy who are shielded from individual liability, see, e.g., Boulahanis v. Bd. of Regents, 198 F.3d 633, 639 (7th Cir.1999). In the latter instance, we have held that a section 1983 claim is not cognizable because Title IX provides comprehensive recourse (the loss of federal funds) for the discriminatory practice or policy. “Congress intended to place the burden of compliance with civil rights law on educational institutions themselves, not on the individual officials associated with those institutions.” Waid v. Merrill Area Pub. Schs., 91 F.3d 857, 862 (7th Cir.1996). The Does contend the district court erroneously held that Title IX preempts their section 1983 claims against defen dants-appellees Cain," }, { "docid": "7585252", "title": "", "text": "under § 1983.’ ” Id. (quoting Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n., 453 U.S. 1, 20, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981)). The court then decided that “Title IX contains a sufficiently comprehensive enforcement scheme so as to foreclose the use of § 1983 to'implement its provisions.” Id. In conclusion, the court held that “given Title IX’s administrative and judicial remedies, we believe it was Congress’ scheme that a claimed violation of Title IX be pursued under Title IX and not § 1983.” Id. at 757. The Circuit made clear however that its decision in Bruneau applied only to the non-individual defendants, and did “not address the extent to which Title IX subsumes a § 1983 claim against the individual defendants.... ” Bruneau, 163 F.3d at 755. Based on this analysis, one court in the Northern District of New York has concluded that it follows from the reasoning in Bruneau that a Section 1983 suit against an individual is not subsumed by Title IX. See Cinquanti v. Tompkins-Cortland Community College, 2000 WL 949460, *6-*7 (N.D.N.Y.2000) (finding no Title IX preclusion of Section 1983 action as to individual defendants because such defendants are not subject to suit under Title IX). At least two circuits have reached a contrary conclusion. The Third and Seventh Circuits have both concluded that Title IX’s enforcement scheme is sufficiently comprehensive so as to preclude Section 1983 suits against individual defendants. See Pfeiffer v. Marion Center Area School District, 917 F.2d 779, 789 (3d Cir.1990); Waid v. Merrill Area Public Schools, 91 F.3d 857, 862-63 (7th Cir.1996). The Seventh Circuit reasoned on this point that Congress’ decision to enforce Title IX through the granting or withholding of federal funding “indicates that Congress intended to place the burden of compliance with civil rights law on educational institutions themselves, not on the individual officers associated with those institutions.” Id. The reasoning in Cinquanti which holds that the remedial scheme of Title IX is not “sufficiently comprehensive” as to the indi vidual defendants so as to preclude liability under Section 1983 is adopted. ' Such defendants" }, { "docid": "23122817", "title": "", "text": "pervasive, and objectively offensive.” Id., at 172. The court concluded that the Fitzgeralds’ Title IX claim lacked merit, however, because the response of the school committee and Dever to the reported harassment had been objectively reasonable. Id., at 175. The Court of Appeals turned next to the Fitzgeralds’ § 1983 claims. Relying on this Court’s precedents in Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1 (1981), Smith v. Robinson, 468 U. S. 992 (1984), and Rancho Palos Verdes v. Abrams, 544 U. S. 113 (2005), the court characterized Title IX’s implied private remedy as “sufficiently comprehensive” to preclude use of § 1983 to advance statutory claims based on Title IX itself. 504 F. 3d, at 179. This reasoning, the court held, “applied] with equal force” to the constitutional claims. Ibid. The court concluded that “Congress saw Title IX as the sole means of vindicating the constitutional right to be free from gender discrimination perpetrated by educational institutions.” Ibid. The Court of Appeals’ decision deepened a conflict among the Circuits regarding whether Title IX precludes use of § 1983 to redress unconstitutional gender discrimination in schools. Compare Bruneau ex rel. Schofield v. South Kortright Central School Dist., 163 F. 3d 749, 758-759 (CA2 1998); Waid v. Merrill Area Public Schools, 91 F. 3d 857, 862-863 (CA7 1996); Pfeiffer v. Marion Center Area School Dist., 917 F. 2d 779, 789 (CA3 1990), with Communities for Equity v. Michigan High School Athletic Assn., 459 F. 3d 676, 691 (CA6 2006); Crawford v. Davis, 109 F. 3d 1281, 1284 (CA8 1997); Seamons v. Snow, 84 F. 3d 1226, 1234 (CA10 1996). We granted certiorari to resolve this conflict, 553 U. S. 1093 (2008), and we now reverse. II A In relevant part, 42 U. S. C. § 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or" }, { "docid": "18071792", "title": "", "text": "suits against the school officials responsible for the policy or practice that violates Title IX, though not all courts agree. Compare Pfeiffer v. Marion Center Area School District, 917 F.2d 779, 789 (3d Cir.1990), which we followed in Waid and Boulahanis, and also Bruneau ex rel. Schofield v. South Kortright Central School District, 163 F.3d 749, 756-59 (2d Cir.1998), with Crawford v. Davis, 109 F.3d 1281, 1283-84 (8th Cir.1997); Seamons v. Snow, 84 F.3d 1226, 1233-34 (10th Cir.1996), and Lillard v. Shelby County Board of Education, 76 F.3d 716, 722-24 (6th Cir.1996), all rejecting the holding of Pfeiffer. The issue was expressly left open by the Supreme Court in Gebser. 524 U.S. at 292, 118 S.Ct. 1989. Title IX, especially having been interpreted in Cannon to provide a damages remedy, furnishes all the relief that is necessary to rectify the discriminatory policies or practices of the school itself. But it is quite otherwise in a case such as this, in which the malefactor is a teacher whose malefaction is not a policy or a practice for which the school could be held liable under Title IX. In Bruneau, Crawford, and Lillard, teachers were named as section 1983 defendants along with school officials, but nothing was made of the distinction between the two types of defendant. The distinction is crucial. The only possible efféct of applying the sea-clammers doctrine to this case would be to immunize Stegall from liability for his federal constitutional tort. How this could be thought to have been intended by Congress when it enacted Title IX without providing any damages remedy, or to advance the policies of that statute, is beyond us. Stegall argues feebly that since states often indemnify their employees for tor-tious misconduct, the university may be harmed financially if he is held liable to Delgado under section 1983. If such liability pinches the university, then it can cease indemnifying such tortfeasors; no statutory change would be necessary, because Illinois law requires the state to indemnify its employees only for the torts they commit within the scope of their employment. 5 ILCS 350/2(d); Nichol v." }, { "docid": "23122818", "title": "", "text": "whether Title IX precludes use of § 1983 to redress unconstitutional gender discrimination in schools. Compare Bruneau ex rel. Schofield v. South Kortright Central School Dist., 163 F. 3d 749, 758-759 (CA2 1998); Waid v. Merrill Area Public Schools, 91 F. 3d 857, 862-863 (CA7 1996); Pfeiffer v. Marion Center Area School Dist., 917 F. 2d 779, 789 (CA3 1990), with Communities for Equity v. Michigan High School Athletic Assn., 459 F. 3d 676, 691 (CA6 2006); Crawford v. Davis, 109 F. 3d 1281, 1284 (CA8 1997); Seamons v. Snow, 84 F. 3d 1226, 1234 (CA10 1996). We granted certiorari to resolve this conflict, 553 U. S. 1093 (2008), and we now reverse. II A In relevant part, 42 U. S. C. § 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” In three cases, this Court has found that statutory enactments precluded claims under this statute. Sea Clammers, supra; Smith, supra; Rancho Palos Verdes, supra. These cases establish that “[t]he crucial consideration is what Congress intended.” Smith, 468 U. S., at 1012. If Congress intended a statute’s remedial scheme to “be the exclusive avenue through which a plaintiff may assert [the] claims,” id., at 1009, the §1983 claims are precluded. See Rancho Palos Verdes, 544 U. S., at 120-121 (“The critical question, then, is whether Congress meant the judicial remedy expressly authorized by [the statute] to coexist with an alternative remedy available in a § 1983 action”). In those cases in which the § 1983 claim is based on a statutory right, “evidence of such congressional intent may be found directly in the statute creating the right, or inferred from the statute’s creation of a comprehensive enforcement scheme" }, { "docid": "8395766", "title": "", "text": "between the Government and the recipient of funds.” Gebser, 118 S.Ct. at 1997. “The fact that title IX was enacted pursuant to Congress’s spending power is evidence that it prohibits discriminatory acts only by grant recipients.” Rowinsky v. Bryan Indep. Sch. Dist., 80 F.3d 1006, 1012 (5th Cir.), cert. denied, 519 U.S. 861, 117 S.Ct. 165, 136 L.Ed.2d 108 (1996). Several circuits have held that because they are not grant recipients, school officials may not be sued in their individual capacity under Title IX. See Floyd v. Waiters, 133 F.3d 786, 789 (11th Cir.), vacated and remanded, — U.S. -, 119 S.Ct. 33, 142 L.Ed.2d 25 (1998); Smith, 128 F.3d at 1019; Lipsett v. University of Puerto Rico, 864 F.2d 881, 901 (1st Cir.1988); see also Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 730 (6th Cir.1996) (Nelson, J., concurring) (stating that only educational institutions may be found liable for Title IX violations). See also National Collegiate Athletic Ass’n v. Smith, — U.S. -, 119 S.Ct. 924, 142 L.Ed.2d 929 (1999) (receipt of dues from member colleges and universities does not subject NCAA to suit under Title IX). Agreeing with these holdings, we conclude that Title IX will not support an action against McDougall in her individual capacity. In addition to her Title IX complaint, however, Kinman also alleged violations of the Fourteenth Amendment as a basis for her section 1983 claim against McDougall in her individual capacity. In Kinman I, we dismissed the section 1983 claims against the district, Mackiel, and Whitehouse. See 94 F.3d at 467. Nothing in our decision in Kinman I, however, affects Kinman’s ability to bring a section 1983 action against McDougall individually. Likewise, Gebser does not bar such an action, for the Court made it clear that that decision has no effect on an individual-capacity suit against a teacher brought under state law or under section 1983. See Gebser, 118 S.Ct. at 2000. To hold McDougall liable under section 1983, Kinman must show that the conduct complained of was performed under color of state law and that the conduct deprived her of" }, { "docid": "21110297", "title": "", "text": "official capacities, and for monetary damages against defendants Williams and Davis in their individual capacities, leaving only Ms. Crawford’s Title IX claims against UCA and defendants Williams, Thompson, and Davis in their official capacities. The question of whether Title IX subsumes § 1983 claims is one of first impression in our court, and we are faced with a split of authority in other circuits. The Sixth and Tenth Circuits have held that Title IX does not subsume § 1983 claims, see, respectively, Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 722-24 (6th Cir.1996), and Seamons v. Snow, 84 F.3d 1226, 1233-34 (10th Cir.1996), while the Third and Seventh Circuits have held that it does, see, respectively, Williams v. School Dist. of Bethlehem, 998 F.2d 168, 176 (3rd Cir.1993), cert. denied, 510 U.S. 1043, 114 S.Ct. 689, 126 L.Ed.2d 656 (1994), and Waid v. Merrill Area Pub. Schs., 91 F.3d 857, 862-63 (7th Cir.1996). In Sea Clammers, 453 U.S. at 20, 101 S.Ct. at 2626, the Supreme Court held that if the remedial devices contained in a particular statute are “sufficiently comprehensive,” they may provide evidence that Congress intended to preclude suit under § 1983 to redress violations of that statute. To the extent that Ms. Crawford’s § 1983 claims are premised on alleged violations of the Equal Protection Clause, we believe that the application of Sea Clammers to her claims is plainly inapposite. Sea Clammers in no way restricts a plaintiffs ability to seek redress via § 1983 for the violation of independently existing constitutional rights, even if the same set of facts also gives rise to a cause of action for the violation of statutory rights. To the extent that Ms. Crawford’s § 1983 claims are based on alleged violations of Title IX, we find unpersuasive the defendants’ argument that Title IX contains a “sufficiently comprehensive” remedial scheme. The only enforcement mechanism that Title IX expressly provides is a procedure to terminate federal support to institutions that violate Title IX. See 20 U.S.C. § 1682; see also Cannon v. Univ. of Chicago, 441 U.S. 677, 683, 99" }, { "docid": "4362423", "title": "", "text": "S.Ct. 1683. Under that standard, the Court FINDS that, viewed in the light most favorable to the Plaintiff, the .Complaint specifically fails to state a claim with respect to each claim in the Complaint. The Court will address each claim in turn. B. Individual Capacity Claims Against Defendant For the following reasons, all of the Plaintiffs claims against the Defendant in his individual capacity shall be dismissed as a matter of law for failure to state a claim. i. Title IX claims It is impossible to bring a Title IX action against an individual. See Kinman v. Omaha Public School District, 171 F.3d 607 (8th Cir.1999); Smith v. Metropolitan School District, 128 F.3d 1014 (7th Cir.1997). Title IX operates to condition “an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds.” Kinman, 171 F.3d at 610-11 (quoting Gebser v. Lago Vista Ind. School Dist., 524 U.S. 274, 118 S.Ct. 1989, 1997, 141 L.Ed.2d 277 (1998)). This Court agrees with the many Courts of Appeals that have held that “because they are not grant recipients, school officials may not be sued in their individual capacity under Title IX.” Id. at 610; see also Floyd v. Waiters, 133 F.3d 786, 789 (11th Cir.), vacated and remanded, — U.S. —, 119 S.Ct. 33, 142 L.Ed.2d 25 (1998); Lipsett v. University of Puerto Rico, 864 F.2d 881, 901 (1st Cir.1988); Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 730 (6th Cir.1996) (Nelson, J., concurring); National Collegiate Athletic Ass’n v. Smith, — U.S. —, 119 S.Ct. 924, 142 L.Ed.2d 929 (1999). As such, the Plaintiff in this case may not maintain a Title IX action against the Defendant, Provost of the Virginia Beach campus of TCC, in his individual capacity. Because the Plaintiff cannot, as a matter of law, state a claim against the Defendant in his individual capacity under Title IX, the Court DISMISSES all Title IX claims against the Defendant individually. ii. ADA and Rehabilitation Act claims Title II of the ADA" } ]

[ { "docid": "22321750", "title": "", "text": "Cir.1991). When determining the sufficiency of plaintiffs’ claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in plaintiffs’ amended complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in bringing suit. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992). A complaint may not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.\" Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). A. Duty to Disclose The basis for dismissal of the instant complaint was its failure to state a claim for either fraudulent misrepresentation or fraudulent concealment with respect to either Brass or his transferees. On appeal plaintiffs do not appear to contend that the district court erred in dismissing the claims of the transferees, nor do they argue that there was any affirmative misrepresentation by AFT to Brass. Rather, they assert that AFT, through its chief executive Jensen, had an affirmative duty to disclose to Brass that the warrants and the underlying stock involved in his transaction with Abert were restricted and that Jensen’s silence when he had a duty to speak was tantamount to fraud. A duty to speak cannot arise simply because two parties may have been on opposite sides of a bargaining table when a deal was struck between them, for under New York law the ancient rule of caveat emptor is still alive and well. See, e.g., Moser v. Spizzirro, 31 A.D.2d 537, 537, 295 N.Y.S.2d 188 (2d Dep’t 1968), aff'd, 25 N.Y.2d 941, 305 N.Y.S.2d 153, 252 N.E.2d 632 (1969); Perin v. Mardine Realty Co., 5 A.D.2d 685, 685, 168 N.Y.S.2d 647 (2d Dep’t 1957), aff'd, 6 N.Y.2d 920, 190 N.Y.S.2d 995," } ]

[ { "docid": "17451798", "title": "", "text": "has developed under Federal Rule of Civil Procedure 56. See, e.g., Kamen, 791 F.2d at 1011. In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true and all reasonable inferences must be drawn in the plaintiffs favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007). The Court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). The Court should not dismiss the complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A 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). \"While the Court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions.” Id. When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiffs possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); Taylor v. Vt. Dep’t of Educ., 313 F.3d 768, 776 (2d Cir.2002). II. The following facts are undisputed, unless otherwise noted. CKX is a corporation involved with the entertainment industry. (Compl. ¶ 7.) The company focuses on acquiring entertainment content and related assets such as the rights to the names and images of various celebrities. (Compl. ¶ 7.)" }, { "docid": "2162725", "title": "", "text": "184, 188 (2d Cir.1998). In deciding a motion to dismiss, all reasonable inferences are drawn in the plaintiffs’ favor. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989). The Court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). Therefore, the defendants’ motion to dismiss should only be granted if it appears that the plaintiffs can prove no set of facts in support of their claim that would entitle them to relief. See Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Grandon, 147 F.3d at 188; Goldman, 754 F.2d at 1065. In deciding the motion, the Court may consider documents that are referenced in the Complaint, documents that the plaintiffs relied on in bringing suit and that are either in the plaintiffs’ possession or the plaintiffs knew of when bringing suit, or matters of which judicial notice may be taken. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); see also Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991); VTech Holdings Ltd. v. Lucent Techs., Inc., 172 F.Supp.2d 435, 437 (S.D.N.Y.2001). “[W]hen a plaintiff chooses not to attach to the complaint or incorporate by reference a document upon which it relies and which is integral to the complaint, the court may nonetheless take the document into consideration in deciding the defendant[s’] motion to dismiss, without converting the proceeding to one for summary judgment.” Int’l Audiotext Network, Inc. v. AT & T Co., 62 F.3d 69, 72 (2d Cir.1995) (internal citation and quotation marks omitted); see Yucyco, Ltd. v. Republic of Slovenia, 984 F.Supp. 209, 215 (S.D.N.Y.1997). Accordingly, the following facts alleged in the Complaint are accepted as true" }, { "docid": "20171034", "title": "", "text": "McKevitt v. Mueller, 689 F.Supp.2d 661, 665 (S.D.N.Y.2010). When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiffs possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir.2002); see also Kavowras v. New York Times Co., 328 F.3d 50, 57 (2d Cir.2003); Taylor v. Vt. Dep’t of Educ., 313 F.3d 768, 776 (2d Cir.2002); Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991); Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991); McKevitt, 689 F.Supp.2d at 665. II. The Court accepts the following factual allegations for the purposes of the motion to dismiss. A. The plaintiffs are individual participants in the Plan who held American Express stock in their individual Plan accounts during the class period. (Second Consol. Am. Compl. (“Compl.”) ¶¶ 20-23.) American Express, the Plan Sponsor and named fiduciary, is a New York company that offers consumer and business credit cards among other financial products. (Compl. ¶¶ 25-27,106.) The Director or Monitoring Defendants — Chenault, Akerson, Barshefsky, Burns, Chernin, Leschly, Levin, McGinn, Miller, Reinemund, Walter, and Williams — were members of the American Express Board of Directors during the class period. (Compl. ¶¶ 28-40.) The plaintiffs allege that the Director Defendants were fiduciaries of the Plan within the meaning of ERISA § 3(21)(A), 29 U.S.C. § 1002(21)(A), because they allegedly “exercised discretionary authority with respect to the management and administration of the Plan and management or disposition of the Plan’s assets” and “were ultimately responsible for monitoring and administering the Plan.” (Compl. ¶¶ 41-42.) The named fiduciaries of the Plan subject to ERISA are the Administration Committee, the Benefits Committee, and the Investment Committee. (Compl. ¶¶ 45-46, 51, 81-85.) The Compensation Committee Defendants — Leschly, McGinn, Miller, Walter, and Chernin —" }, { "docid": "19663573", "title": "", "text": "the plaintiff can prove no set of facts in support of its claims that would entitle it to relief. See Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (citing Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Grandon, 147 F.3d at 188; Goldman, 754 F.2d at 1065. While the Court should construe the factual allegations in the light most favorable to the plaintiff, the Court is not required to accept legal conclusions asserted in the Complaint. See Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir.2002); Barile v. City of Hartford, 386 F.Supp.2d 53, 54 (D.Conn.2005). In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the Complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiffs possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); see also Taylor v. Vermont Dep’t of Educ., 313 F.3d 768, 776 (2d Cir.2002); Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991); Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991); VTech Holdings Ltd. v. Lucent Techs., Inc., 172 F.Supp.2d 435, 437 (S.D.N.Y.2001). B. For the purposes of deciding these motions to dismiss, the following facts alleged in the Complaint are accepted as true. The defendant Findwhat is a company that offers advertising services in connection with its Internet search engine. (CompLIffl 1, 12, 19.) In particular, it uses the “pay-per-cliek” (“PPC”) marketing formula to price the advertisements it provides. Under this formula, an advertising customer bids on one or more keywords which, when entered into Findwhat’s search engine by Internet users, will return a hyperlink (or “link”) to the advertising customer’s web site alongside" }, { "docid": "4334826", "title": "", "text": "pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. On a motion to dismiss, the allegations in the complaint are accepted as true. See Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.1998). In deciding a motion to dismiss, all reasonable inferences are drawn in the plaintiffs favor. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989). The Court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). Therefore, the defendants’ motion to dismiss should be granted only if it appears that the plaintiff can prove no set of facts in support of its claim that would entitle it to relief. See Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Grandon, 147 F.3d at 188; Goldman, 754 F.2d at 1065. In deciding the motion, the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiffs possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); see also Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991); VTech Holdings Ltd. v. Lucent Techs., Inc., 172 F.Supp.2d 435, 437 (S.D.N.Y.2001). II. The factual background of the case leading up to the prior judgment is fully set forth in AAOT Foreign Econ. Ass’n (VO) Technostroyexport v. Int’l Dev. & Trade Servs., Inc., 139 F.3d 980 (2d Cir.1998), familiarity with which is assumed. The following facts, as alleged in the Complaint, are accepted as true for the purposes of this motion." }, { "docid": "21177899", "title": "", "text": "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). While factual allegations should be construed in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Id. A claim under Section 10(b) of the Securities Exchange Act sounds in fraud and must meet the pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure and of the PSLRA, 15 U.S.C. § 78u-4(b). Rule 9(b) requires that the complaint “(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.” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir.2007). The PSLRA similarly requires that the complaint “specify each statement alleged to have been misleading [and] the reason or reasons why the statement is misleading,” and it adds the requirement that “if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed.” 15 U.S.C. § 78u-4(b)(l); ATSI, 493 F.3d at 99. When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiffs possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002). The Court can take judicial notice of public disclosure documents that must be filed with the Securities and Exchange Commission (“SEC”) and documents that both “bear on the adequacy” of SEC disclosures and are “public disclosure documents required by law.” Kramer v. Time Warner, Inc., 937 F.2d 767, 773-74 (2d Cir.1991); see also Silsby v. Icahn, 17" }, { "docid": "19663574", "title": "", "text": "suit, or matters of which judicial notice may be taken. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); see also Taylor v. Vermont Dep’t of Educ., 313 F.3d 768, 776 (2d Cir.2002); Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991); Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991); VTech Holdings Ltd. v. Lucent Techs., Inc., 172 F.Supp.2d 435, 437 (S.D.N.Y.2001). B. For the purposes of deciding these motions to dismiss, the following facts alleged in the Complaint are accepted as true. The defendant Findwhat is a company that offers advertising services in connection with its Internet search engine. (CompLIffl 1, 12, 19.) In particular, it uses the “pay-per-cliek” (“PPC”) marketing formula to price the advertisements it provides. Under this formula, an advertising customer bids on one or more keywords which, when entered into Findwhat’s search engine by Internet users, will return a hyperlink (or “link”) to the advertising customer’s web site alongside the search results returned by the search engine. The customer then pays Findwhat a “per click” fee for every time that an Internet user actually clicks on the advertising customer’s ad. (Id. ¶¶ 18-21.) Payments average around fifty cents per click, although they can reach one hundred dollars or more for the most sought-after keywords. (Id. ¶ 21.) The plaintiff Payday entered into an agreement with Findwhat to provide PPC advertising services on January 3, 2004. (Complin 16, 54-57.) The defendant Advertising is a provider of online advertising and the developer of “ClickTracker,” a software measurement tool that allows tracking and measurement of sales on Internet sites. (Id. ¶ 14.) At some point prior to 2000, Advertising entered into an “affiliate relationship” with Findwhat which provided that the companies would split their revenues from PPC advertising business. (Id. ¶ 25.) Pursuant to this relationship, Findwhat sent keyword information to Advertising, and Advertising would in return direct Internet traffic to Findwhat’s search results listings. (Id. ¶ 26.) Findwhat and Advertising allegedly participated in the bidding process" }, { "docid": "3308102", "title": "", "text": "58.) The Complaint also alleges that Defendants Allen and Kramer breached their fiduciary duties by “offering to purchase additional shares so as to entrench their unlawful scheme and acquire such shares at an unfairly low price.” (Compl. ¶ 53; see Compl. ¶ 58.) DISCUSSION Defendants move pursuant to Rule 12(b)(6) to dismiss the Complaint for failure to state a claim. Defendants contend that their decisions regarding the Property and Deepdale are shielded by New York’s business judgment rule and that Plaintiff has not sufficiently alleged a breach of fiduciary duty or corporate waste. I. Legal Standard, on a Motion to Dismiss On a motion to dismiss under Fed. R.Civ.P. 12(b)(6), a court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiffs favor. Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.1998). A court should not dismiss a complaint for failure to state a claim unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In this limited task, the issue is not whether a plaintiff will ultimately prevail on his claim, but whether the plaintiff is entitled to offer evidence in support of the allegations in the complaint. Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton Coll., 128 F.3d 59, 62 (2d Cir.1997). A. Matters Outside the Pleadings In resolving a motion to dismiss for failure to state a claim, a court's “consideration is limited to facts stated on the face of the complaint, in documents appended to complaint or incorporated in the complaint by reference, and to such matters of which judicial notice may be taken.” Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991); see Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002). Such documents are considered to be part of the complaint. Cortec Indus. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.1991). A court may also consider “documents" }, { "docid": "1886461", "title": "", "text": "circumstances (the “'365 Patent activities”). Bristol-Myers moves pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss all of the claims raised by the antitrust plaintiffs in the antitrust actions (collectively, the “antitrust claims”). I. When considering a motion to dismiss, the Court “ ‘must accept the material facts alleged in the complaint[s] as true and construe all reasonable inferences in the plaintiffs’] favor.’” Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995) (considering a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)) (quoting Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.1994)). The Court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at trial but merely to determine whether the complaint[s] [themselves are] legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). Therefore, Bristol-Myers’s present motion should only be granted if it appears that the antitrust plaintiffs can prove no set of facts in support of their respective claims that would entitle them to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.1998); see also Goldman, 754 F.2d at 1065. In deciding the motion, the Court may consider documents referenced in the Complaints and documents that are in the relevant antitrust plaintiffs’ possession or that they knew of and relied on in bringing suit. See Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991); I. Meyer Pincus & Assoc., P.C. v. Oppenheimer & Co., Inc., 936 F.2d 759, 762 (2d Cir.1991); Skeete v. IVF America, Inc., 972 F.Supp. 206, 208 (S.D.N.Y.1997). The Court may also consider “matters of which judicial notice may be taken.” See Leonard F. v. Israel Discount Bank, 199 F.3d 99, 107 (2d Cir.1999) (quotation omitted); see also Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir.1991). However, “in antitrust cases, where ‘the proof is largely in the hands of the alleged conspirators,’ dismissals" }, { "docid": "17451799", "title": "", "text": "662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). \"While the Court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions.” Id. When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiffs possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); Taylor v. Vt. Dep’t of Educ., 313 F.3d 768, 776 (2d Cir.2002). II. The following facts are undisputed, unless otherwise noted. CKX is a corporation involved with the entertainment industry. (Compl. ¶ 7.) The company focuses on acquiring entertainment content and related assets such as the rights to the names and images of various celebrities. (Compl. ¶ 7.) On March 17, 2005, CKX acquired the stock of 19 Entertainment Limited (“19E”), a United Kingdom (“UK”) company that held a two-thirds interest in the popular television franchise “American Idol.” (Compl. ¶ 11.) Freemantle Media (“Freemantle”), a separate UK company with offices in the United States, continued to hold a one-third interest in “American Idol.” (Compl. ¶ 12.) Almost a year later, in February 2006, CKX hired the plaintiff to serve as its Senior Tax Counsel. (Compl. ¶ 9.) Wong’s duties as Senior Tax Counsel included finding ways to reduce CKX’s tax liability. (Compl. ¶ 9.) In 2006, Wong determined that if 19E were to conduct business through a permanent establishment (“PE”) in the United States — and thus have its income taxed primarily in the United States rather than in the UK — it would substantially reduce CKX’s effective tax rate. (Compl. ¶ 18.) At some point after this determination, Wong discovered that 19E might already have a PE in the United States through 19E’s relationship with Freemantle. (Compl. ¶ 22.) Wong repeatedly raised" }, { "docid": "16003134", "title": "", "text": "Inc., 134 F.3d 41, 46 (2d Cir.1997). In reviewing a Fed.R.Civ.P. 12(b)(6) motion, a court may consider the allegations in the complaint; exhibits attached to the complaint or incorporated therein by reference; matters of which judicial notice may be taken; Brass v. Am. Film Technolo gies, Inc., 987 F.2d 142, 150 (2d Cir.1993); and documents of which plaintiff has notice and on which it relied in bringing its claim or that are integral to its claim. Cortec Indus. Inc. v. Sum Holding, L.P., 949 F.2d 42, 48 (2d Cir.1991). However, mere notice or possession of the document is not sufficient. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002). Rather, a necessary prerequisite for a court’s consideration of the document is that a plaintiff relied “on the terms and effect of a document in drafting the complaint.” Id. As such, the document relied upon in framing the complaint is considered to be merged into the pleading. Id. at 153 n. 3 (citation omitted). In contrast, when assessing the sufficiency of the complaint, the court does not consider extraneous material because considering such would run counter to the liberal pleading standard which requires only a short and plain statement of the claim showing entitlement to relief. See Fed. R. Cir. P. 8(a), Chambers, 282 F.3d at 154. Nevertheless, in considering a Fed.R.Civ.P. 12(b)(6) motion, a court may consider facts as to which the court may properly take judicial notice under Rule 201 of the Federal Rules of Evidence (“Fed.R.Evid.”). In re Merrill Lynch & Co., Inc., 273 F.Supp.2d 351, 383 n. 3 (S.D.N.Y.2003)(citing, Chambers, 282 F.3d at 153). To survive a motion to dismiss, a plaintiff only has to allege sufficient facts, not prove them. Koppel v. 4987 Corp., 167 F.3d 125, 133 (2d Cir.1999). A court’s role in ruling on a motion to dismiss is to evaluate the legal feasibility of the complaint, not to undertake to weigh the evidence, which may be offered to support it. Cooper, 140 F.3d at 440 (citations omitted). Thus, for the purposes of the Motion to Dismiss, the Court accepts as true" }, { "docid": "23464704", "title": "", "text": "to evade a properly argued motion to dismiss simply because plaintiff has chosen not to attach the prospectus to the complaint or to incorporate it by reference.”). . Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002) (\"[O]n a motion to dismiss, a court may consider 'documents attached to the complaint as an exhibit or incorporated in it by reference ... matters of which judicial notice may be taken, or .., documents either in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in bringing suit.' \") (quoting Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993)); Rothman, 220 F.3d at 88-89; Cortec, 949 F.2d at 47 (\"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.”). . Rothman, 220 F.3d at 88; Cortec, 949 F.2d at 47 (\"[Wjhen a district court decides a motion to dismiss a complaint alleging securities fraud, it may review and consider public disclosure documents required by law to be and which actually have been filed with the SEC....”); Kramer v. Time Warner, Inc., 937 F.2d 767, 774 (2d Cir.1991) (giving rationale for allowing district courts to consider this information on Rule 12(b)(6) motion). .Chambers, 282 F.3d at 153 (\"[O]n a motion to dismiss, a court may consider ... 'matters as to which judicial notice may be taken ....’\") (quoting Brass, 987 F.2d at 150); Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir.1995); Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir.1991) (\"In determining the adequacy of a claim under Rule 12(b)(6), consideration is limited to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and matters of which judicial notice may be taken.”); Kramer, 937 F.2d at 774. .The 24/7 and Interliant actions are two of the approximately 27 consolidated actions in this litigation. Each of the actions consolidates cases pertaining" }, { "docid": "14794142", "title": "", "text": "Inc., 134 F.3d 41, 46 (2d Cir.1997). In reviewing a Fed.R.Civ.P. 12(b)(6) motion, a court may consider the allegations in the complaint; exhibits attached to the complaint or incorporated therein by reference; matters of which judicial notice may be taken; Brass v. Am. Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993); and documents of which plaintiff has notice and on which it relied in bringing its claim or that are integral to its claim. Cortec Indus., Inc. v. Sum Holding, L.P., 949 F.2d 42, 48 (2d Cir.1991). However, mere notice or possession of the document is not sufficient. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002). Rather, a necessary prerequisite for a court’s consideration of the document is that a plaintiff relied “on the terms and effect of a document in drafting the complaint.” Id. As such, the document relied upon in framing the complaint is considered to be merged into the pleading. Id. at 153 n. 3 (citation omitted). In contrast, when assessing the sufficiency of the complaint, the court does not consider extraneous material because considering such would run counter to the liberal pleading standard which requires only a short and plain statement of the claim showing entitlement to relief. See Fed.R.Civ.P. 8(a); Chambers, 282 F.3d at 154. Nevertheless, in considering a Fed.R.Civ.P. 12(b)(6) motion, a court may consider facts as to which the court may properly take judicial notice under Rule 201 of the Federal Rules of Evidence (“Fed.R.Evid.”). In re Merrill Lynch & Co., Inc., 273 F.Supp.2d 351, 383 n. 3 (S.D.N.Y.2003)(citing Chambers, 282 F.3d at 153). To survive a motion to dismiss, a plaintiff only has to allege sufficient facts, not prove them. Koppel v. 4987 Corp., 167 F.3d 125, 133 (2d Cir.1999). A court’s role in ruling on a motion to dismiss is to evaluate the legal feasibility of the complaint, not to undertake to weigh the evidence, which may be offered to support it. Cooper, 140 F.3d at 440 (citations omitted). Thus, for the purposes of the Motion to Dismiss, the Court accepts as true all of the material" }, { "docid": "19370881", "title": "", "text": "Marvin Ray Raskin), the current and former Chairs of the Committee (Harvey Fishbein and Norman Rein-er), and the current and former Administrators of the Plan (George Golfinopoulos and Emily Olshansky) (collectively, the “State Defendants”) now move to dismiss the plaintiffs second amended complaint against them pursuant to Fed.R.Civ.P. 12(b)(6). I On this motion to dismiss, the allegations in the Second Amended Complaint are accepted as true. See Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.1998). In deciding a motion to dismiss, all reasonable inferences must be drawn in the plaintiffs favor. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir.1995); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir.1989). The Court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). Therefore, the present motion should only be granted if it appears that the plaintiff can prove no set of facts in support of his claims against the State Defendants that would entitle him to relief. See Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Grandon, 147 F.3d at 188; Goldman, 754 F.2d at 1065. In deciding the motion, the Court may consider documents that are referenced in the Second Amended Complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiffs possession or the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); see also Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991); I. Meyer Pincus & Assoc., P.C. v. Oppenheimer & Co., Inc., 936 F.2d 759, 762 (2d Cir.1991); Coffey v. Cushman & Wakefield, Inc., No. 01 Civ. 9447, 2002 WL" }, { "docid": "20171033", "title": "", "text": "v. Lime Group LLC, 532 F.Supp.2d 556, 566 (S.D.N.Y.2007). The Court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985). The Court should not dismiss the complaint if the plaintiff has stated “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A 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, — U.S.-, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions.” Id.; see also McKevitt v. Mueller, 689 F.Supp.2d 661, 665 (S.D.N.Y.2010). When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiffs possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir.2002); see also Kavowras v. New York Times Co., 328 F.3d 50, 57 (2d Cir.2003); Taylor v. Vt. Dep’t of Educ., 313 F.3d 768, 776 (2d Cir.2002); Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991); Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir.1991); McKevitt, 689 F.Supp.2d at 665. II. The Court accepts the following factual allegations for the purposes of the motion to dismiss. A. The plaintiffs are individual participants in the Plan who held American Express stock in" }, { "docid": "12872821", "title": "", "text": "v. Rorech, 673 F.Supp.2d 217, 221 (S.D.N.Y.2009). A claim under Section 10(b) sounds in fraud and must meet the pleading requirements of Rule 9(b) of the Federal Rules of Civil Procedure and the Private Securities Litigation Reform Act of 1995 (\"PSLRA\"), 15 U.S.C. § 78u-4(b). Rule 9(b) requires that the complaint \"(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.\" ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 99 (2d Cir.2007). The PSLRA similarly requires that the complaint \"specify each statement alleged to have been misleading [and] the reason or reasons why the statement is misleading,\" and it adds the requirement that \"if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed.\" 15 U.S.C. § 78u-4(b)(1); see also ATSI Commc’ns, 493 F.3d at 99. When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiffs relied on in bringing suit and that are either in the plaintiffs’ possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); Rorech, 673 F.Supp.2d at 221. II The following facts are undisputed, unless otherwise indicated. A Swiss Re, the world’s largest reinsurer, is headquartered in Switzerland; its stock is traded on the Swiss stock exchange. (Second Am. Compl. (“complaint” or “SAC”) ¶¶ 2, 18.) At all relevant times, defendant Jacques Aigrain was Swiss Re’s chief executive officer (“CEO”). (Id. ¶ 19.) Defendant Georges Quinn was appointed chief financial officer (“CFO”) of Swiss Re on March 1, 2007, the day the class period began; prior to that, he had served as CFO of Swiss Re’s financial services business group and as regional CFO for Swiss Re Americas. (Id. ¶ 20.) Plumbers purchased shares of Swiss Re’s" }, { "docid": "1886462", "title": "", "text": "355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.1998); see also Goldman, 754 F.2d at 1065. In deciding the motion, the Court may consider documents referenced in the Complaints and documents that are in the relevant antitrust plaintiffs’ possession or that they knew of and relied on in bringing suit. See Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991); I. Meyer Pincus & Assoc., P.C. v. Oppenheimer & Co., Inc., 936 F.2d 759, 762 (2d Cir.1991); Skeete v. IVF America, Inc., 972 F.Supp. 206, 208 (S.D.N.Y.1997). The Court may also consider “matters of which judicial notice may be taken.” See Leonard F. v. Israel Discount Bank, 199 F.3d 99, 107 (2d Cir.1999) (quotation omitted); see also Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir.1991). However, “in antitrust cases, where ‘the proof is largely in the hands of the alleged conspirators,’ dismissals prior to giving the plaintiff ample opportunity for discovery should be granted very sparingly.” Hospital Bldg. Co. v. Trustees of Rex Hosp., 425 U.S. 738, 746, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976) (quoting Poller v. Columbia Broad., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962)). The Court has already set forth a number of relevant facts that are either undisputed or are matters of public record in a companion Opinion, issued today, which decides the motion for summary judgment filed by Danbury Pharmacal, Inc. and Watson Pharmaceuticals, Inc. (collectively “Watson”) and Mylan Pharmaceuticals, Inc., Mylan Laboratories Inc. and Mylan Technologies Inc. (collectively “Mylan”) in the patent infringement cases. See In re Buspirone, MDL No. 1410, slip op. at 6-26 (S.D.N.Y. Feb. 14, 2002) (Order No. 18) (Motion for Summary Judgment on Patent Infringement Claims). Familiarity with those factual recitations is assumed. II. Bristol-Myers moves to dismiss all of the federal and state antitrust claims based on Bristol-Myers’s conduct in listing the '365 Patent in the Orange Book and then bringing its" }, { "docid": "4334827", "title": "", "text": "S.Ct. 99, 2 L.Ed.2d 80 (1957); Grandon, 147 F.3d at 188; Goldman, 754 F.2d at 1065. In deciding the motion, the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiffs possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); see also Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991); VTech Holdings Ltd. v. Lucent Techs., Inc., 172 F.Supp.2d 435, 437 (S.D.N.Y.2001). II. The factual background of the case leading up to the prior judgment is fully set forth in AAOT Foreign Econ. Ass’n (VO) Technostroyexport v. Int’l Dev. & Trade Servs., Inc., 139 F.3d 980 (2d Cir.1998), familiarity with which is assumed. The following facts, as alleged in the Complaint, are accepted as true for the purposes of this motion. Techno is a Russian corporation with its principal place of business in Moscow, Russian Federation. (ComplJ 7.) IDTS is a corporation organized in April 1989 under the laws of the State of New York. (ComplJ 8.) Reich is a New York resident, who at all relevant times has been the president of IDTS. (ComplJ 2, 9, 30.) Jossem, also a New York resident, is Reich’s daughter, and at all relevant times has been the sole shareholder and sole director of IDTS. (ComplJ 2,10, 31.) The plaintiff alleges that Reich and Jos-sem kept IDTS inadequately capitalized from the time of its incorporation. (ComplJ 29.) Reich and Jossem also allegedly failed to observe required corporate formalities, including their failure to file and pay corporate franchise taxes or to hold any shareholders’ or directors’ meetings. (ComplJ 33.) Reich and Jossem allegedly dominated and controlled the actions of IDTS, made all decisions on its behalf, and used that control to further their own personal interests. (ComplJ 32.) For example, between October 1991 and August 1992, Reich allegedly diverted to" }, { "docid": "19370882", "title": "", "text": "of facts in support of his claims against the State Defendants that would entitle him to relief. See Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Grandon, 147 F.3d at 188; Goldman, 754 F.2d at 1065. In deciding the motion, the Court may consider documents that are referenced in the Second Amended Complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiffs possession or the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); see also Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991); I. Meyer Pincus & Assoc., P.C. v. Oppenheimer & Co., Inc., 936 F.2d 759, 762 (2d Cir.1991); Coffey v. Cushman & Wakefield, Inc., No. 01 Civ. 9447, 2002 WL 1610913, at *1 (S.D.N.Y. Jul 22, 2002); Skeete v. IVF America, Inc., 972 F.Supp. 206, 208 (S.D.N.Y.1997). II The Second Amended Complaint sets forth the following facts, which are accepted as true for the purposes of this motion. The plaintiff is an African-American attorney licensed in the State of New York. (Second Am. Compl. at 1.) The plaintiff was a member of the Panel from approximately 1995 to 1998. (Id. ¶ 1.) Prior to becoming a member of the Panel, the plaintiff had served as an Assistant District Attorney in New York County from 1986 to 1989 and had been a member of the 18-B panel in Kings County between 1991 and 1995. (Id. ¶ 5.) By April, 1998, the plaintiff had tried more than twenty felony matters to verdict, including three murder trials; had negotiated dozens of felony pleas; and had briefed and argued at least two appeals. (Id. ¶¶ 7, 9,11.) The plaintiff had not been reprimanded for his performance as a defense attorney by any judge, the Panel, or the Kings County" }, { "docid": "9883973", "title": "", "text": "“well-pleaded factual allegations” an assumption of veracity and determine whether, together, they plausibly give rise to an entitlement of relief. Id. at 679, 129 S.Ct. 1937. In deciding a motion to dismiss, “courts must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in .particular, documents incorporated, into the complaint by reference, and matters, of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). The court may also consider documents that the plaintiff relied on in bringing suit and that .are either in the plaintiffs possession or that the plaintiff knew of when bringing suit. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002); Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir.1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992); McKevitt v. Mueller, 689 F.Supp.2d 661, 665 (S.D.N.Y.2010). Where the complaint cites or quotes from excerpts of-a document, the court may consider other parts of the same document submitted by the parties on a motion to dismiss. 131 Main St. Assocs. v. Manko, 897 F.Supp. 1507, 1532 n. 23 (S.D.N.Y.1995). Here, the Complaint referred to whát transpired at several Committee meetings and the allegations could only be based on information found in the minutes of those meetings. The Defendants supplied the Court with copies of minutes of the Committee meetings and other Ampal committee meetings, but the only meetings discussed in the Complaint that are relevant to the motions were the Committee meetings held on February 15, 2009, (see ¶¶ 32-36), December 19, 2010, (see ¶¶ 39-43 and 61-62), and November 12, 2011. (See ¶¶ 66). The Trustee agreed at oral argument that the Court could consider these minutes in deciding the motions. (Tr. at 47:2-14.) The Court will also consider the terms of the Superseding Agreement, dated December 30,2010, which is attached as Exhibit G to" } ]

[ { "docid": "22316607", "title": "", "text": "burden shifts to the Secretary to prove the existence of alternative substantial gainful work which exists in the national economy and which the claimant could perform, considering not only his physical and mental capabilities, but also his age, his education, and his experience and training. Campbell v. Secretary of the Department of Health and Human Services, 665 F.2d 48, 51 (2nd Cir. 1981); Dousewicz v. Harris, 646 F.2d 771, 772 (2nd Cir. 1981); Parker v. Harris, 626 F.2d 225, 231 (2nd Cir. 1980). The applicable regulations promulgated by the Secretary set forth a straightforward five-step sequence to be utilized in evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920 (1981). First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Secretary next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work which the claimant could perform. Under the cases previously discussed, the claimant bears the burden of proof as to the first four steps, while the Secretary must prove the final one. On review, we may only set aside a determination which is based upon legal error or not supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Aubeuf v. Schweiker, 649 F.2d 107, 112 (2nd Cir. 1981); Dousewicz, 646 F.2d at 773. Substantial evidence" } ]

[ { "docid": "2912139", "title": "", "text": "a five-step procedure to assess disability claims. See 20 C.F.R. § 404.1520(a)(4). The Second Circuit has described the process as follows: First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience ... Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (alteration in original)). At any step, if the Commissioner can make a finding that the claimant is disabled or not disabled, he must do so and the process need not continue. See 20 C.F.R. § 404.1520(a)(4). If the Commissioner cannot make such a determination, then he must continue to the next step. See id. The burden proof at the first four steps falls on the claimant. See DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir.1998). If the process proceeds to the fifth step, then there is a limited burden shift: the Commissioner has the burden of proving that work exists in the national economy that the claimant can perform, but need not provide any additional evidence regarding the claimant’s residual functional capacity. See 20 C.F.R. § 404.1560(c)(2); Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir.2009). On behalf of the Commissioner, the ALJ applied the five-part test for determining whether Ellington was disabled and concluded that:" }, { "docid": "22138926", "title": "", "text": "sequential evaluation process which the Commissioner must use in assessing disability claims. See Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir.2004) (citing 20 C.F.R. §§ 404.1520(a)-(f)). During the five-step process, the ALJ considers (1) whether the claimant is gainfully employed, (2) whether the claimant has a severe impairment, (3) whether the impairment meets the criteria of any Social Security Income listings, (4) whether the impairment prevents the claimant from performing past relevant work, and (5) whether the impairment necessarily prevents the claimant from doing any other work. Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir.2004) (citation omitted). “If a claimant fails to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is determined to be not disabled. The fourth step in this analysis requires the ALJ to determine a claimant’s RFC.” Id. at 590-91. “A disability claimant has the burden to establish her RFC.” Id. at 591 (citing Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir.2004)). If the claimant establishes her inability to do past relevant work, then the burden of proof shifts to the Commissioner. Id. “The Commissioner must then prove, first that the claimant retains the RFC to do other kinds of work, and, second that other work exists in substantial numbers in the national economy that the claimant is able to perform.” Id. (citing Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir.2000)). Moreover, “[t]he burden of persuasion to prove disability and to demonstrate RFC remains on the claimant, even when the burden of production shifts to the Commissioner at step five.” Stormo, 377 F.3d at 806. A Goff contends the ALJ, in determining her RFC, erred by not giving proper weight to the opinions of her long-term treating physician and her treating psychiatrist. “[A] treating physician’s opinion is given ‘controlling weight’ if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and- is not inconsistent with the other substantial evidence.” Reed, 399 F.3d at 920 (quotations and citations omitted). “A treating physician’s opinion ‘do[es] not automatically control, since the record must be evaluated" }, { "docid": "11636954", "title": "", "text": "on de novo review, will ordinarily refuse to consider arguments, case law and/or evi-dentiary material which could have been, but were not, presented to the Magistrate Judge in the first instance. See Patersoiu-Leitch Co. Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir.1988). SO ORDERED. Dated: June 29, 2012. . Citations to \"T” refer to the Administrative Transcript. (Docket No. 9). . General Order No. 18 provides, in pertinent part, that \"[t]he Magistrate Judge will treat the proceeding as if both parties had accompanied their briefs with a motion for judgment on the pleadings.” . This five-step process is detailed as follows: First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a \"severe impairment\" which significantly limits his physical or mental ability to do basic work activities. If the claimant has such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a \"listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999); 20 C.F.R. §§ 416.920, 404.1520. . Plaintiff does not allege that he has suffered multiple episodes of decompensation of ex tended duration. . “The 'treating physician's rule' is a series of regulations set forth by the Commissioner in 20 C.F.R. § 404.1527 detailing the weight to be accorded a treating physician’s" }, { "docid": "22276679", "title": "", "text": "Social Security Act defines “disability” in relevant part as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Administration (“SSA”) has promulgated a five-step procedure for evaluating disability claims. See 20 C.F.R. § 404.1520. We have interpreted that procedure as follows: First, the [Commissioner] • considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a “severe impairment” [that] significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment ... listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience.... Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, -despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work [that] the claimant could perform. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam)). While [t]he burden is on the claimant to prove that he is disabled within the meaning of the [Social Security] Act[,] ... if the claimant shows that his impairment renders him unable to perform his past work, the burden then shifts to the [Commissioner] to show there is other gainful work in the national economy [that] the claimant could perform. Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir.1998) (quoting Carroll v. Secretary of Health and Human Servs., 705 F.2d 638, 642 (2d Cir.1983) (citations omitted)); see also Perez v. Chater," }, { "docid": "12314341", "title": "", "text": "“First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a ‘severe impairment’ which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a ‘listed’ impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.... [T]he claimant bears the burden of proof as to the first four steps, while the [Commissioner] must prove the final one.” DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir.1998) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982)). In reviewing the Commissioner’s decision, I must decide whether his conclusions are supported by substantial evidence in the record and whether they were reached by the application of the proper legal standard. See Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir.1990) (citing 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Pe- rales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Where substantial evidence supports the ALJ’s conclusions, this Court will not substitute its own judgment as to the facts. See Brown v. Bowen, 905 F.2d 632 (2d Cir.1990), cert. denied, 498 U.S. 1093, 111 S.Ct. 979, 112 L.Ed.2d 1064 (1991). B. The Opinions of Treating Physicians In 1991, the SSA promulgated" }, { "docid": "12735856", "title": "", "text": "a “severe impairment” which limits her mental or physical ability to do basic work activities. 3. If the claimant has a “severe impairment,” the . ALJ must ask whether, based solely on medical evidence, that limitation is listed in Appendix 1 of the regulations. 4. If the impairment is not “listed” in the regulations, the ALJ then asks whether she has residual functional capacity to perform her past work despite her severe impairment. 5. If she is unable to perform her past work, the burden shifts to the ALJ to prove that the claimant retains the residual functional capacity to perform alternative work. 20 C.F.R. §§ 404.1520, 416.920; Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.2004); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003) (citing Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.2002)). The claimant bears the burden of proof as to the first four steps, while the ALJ bears the burden of proof as to the fifth step. See Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000). In proceeding through the five-step analysis, the Commissioner must consider four factors: “(1) objective medical facts, (2) diagnosis or medical opinions based on these facts; (3) subjective evidence of pain and disability; and (4) the claimant’s educational background, age, and work experience.” Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983). C. Analysis 1.. The Treating Physician Rule The ALJ is required to accord special evidentiary weight to the opinion of the treating physician, as long as the treating physician’s opinion is supported by medically acceptable techniques, results from frequent examinations, and the administrative record. See Clark v. Commissioner of Soc. Sec., 143 F.3d 115, 119 (2d Cir.1998). The “treating physician rule,” as it is known, “mandates that the medical opinion of the claimant’s treating physician [be] given controlling weight if it is well supported by the medical findings and not inconsistent with other substantial record evidence.” Shaw v. Chater; 221 F.3d 126, 134 (2d Cir.2000); see also Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir.1999); Clark, 143 F.3d at 119; Schisler v. Sullivan, 3 F.3d 563," }, { "docid": "2787110", "title": "", "text": "ability to do work activities,” Berry, 675 F.2d at 467. If the claimant does suffer such an impairment, the third step is “whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations.” Berry, 675 F.2d at 467; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If so, the claimant is per se “disabled” and thus presumptively qualified for benefits. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If not, the Commissioner proceeds to the fourth step and examines whether, “despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work.” Berry, 675 F.2d at 467; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant is unable to perform his past work, the Commissioner finally determines whether there is other work the claimant can perform, taking into consideration the claimant’s RFC, age, education, and work experience. See 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Berry, 675 F.2d at 467. The claimant bears the burden of proof as to the first four steps. See Rosa, 168 F.3d at 77; Berry, 675 F.2d at 467. Once the claimant has fulfilled his burden, it shifts to the Commissioner at step five. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir.2009). This, however, is only a limited burden shift, in that the Commissioner “need only show that there is work in the national economy that the claimant can do; he need not provide additional evidence of the claimant’s residual functional capacity.” Id.; see also 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2). A. Treating Physician Rule Petrie first contends that the ALJ misapplied the Treating Physician Rule by failing to give various medical opinions controlling weight. He also argues that the ALJ had an obligation to re-contact Petrie’s treating sources when he found their opinions inadequate. Further, Petrie argues that, in giving his treating physicians’ opinions minimal weight, the ALJ failed to consider all relevant factors. Pe-trie’s objections have no merit. “A treating physician’s statement that the claimant is disabled cannot itself be determinative.” Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003) (internal quotation marks" }, { "docid": "11636955", "title": "", "text": "of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a \"listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999); 20 C.F.R. §§ 416.920, 404.1520. . Plaintiff does not allege that he has suffered multiple episodes of decompensation of ex tended duration. . “The 'treating physician's rule' is a series of regulations set forth by the Commissioner in 20 C.F.R. § 404.1527 detailing the weight to be accorded a treating physician’s opinion.” de Roman v. Barnhart, No. 03-Civ.0075, 2003 WL 21511160, at *9 (S.D.N.Y. July 2, 2003). . In the present case, school functioning is not at issue and (as set forth above) the record contains substantial evidence that Plaintiff's social functioning limitations are moderate. However, there is evidence of marked limitation as to occupational functioning. Specifically, Dr. Kang found that Plaintiff had a marked limitation with regard to understanding and remembering simple instructions. (T at 299)." }, { "docid": "9809892", "title": "", "text": "1545, 1551 (2d Cir.1983); Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980). In order to determine whether plaintiff suffers from a disability, the ALJ employs a five-step inquiry: (1) whether the plaintiff is currently working; (2) whether the plaintiff suffers from a severe impairment; (3) whether the impairment is listed in Appendix 1 of the relevant regulations; (4) whether the impairment prevents the plaintiff from continuing his past relevant work; and (5) whether there is other work which the plaintiff could perform. 20 C.F.R. § 404.1520; Berry, 675 F.2d at 467. If a claimant is found to be either disabled or not disabled at any step in this sequential inquiry, the ALJ’s review ends. 20 C.F.R. § 404.1520(a); Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir.1992). C. The Commissioner’s Arguments and My Findings The Commissioner argues that the ALJ’s decision is supported by substantial evidence and should be affirmed. The Commissioner notes that the ALJ found that Downs could no longer perform his past relevant work and was limited to performing a full range of sedentary work. Based upon this finding, the ALJ concluded that Downs was not disabled. 1. The Treating Physician Rule A treating source’s opinion of disability is entitled to some extra weight in claims for Social Security disability benefits. The Second Circuit Court of Appeals established the treating physician rule in a long series of eases, including Schisler v. Bowen, 851 F.2d 43, 47 (2d Cir.1988) (treating physician’s opinion of disability binding unless contradicted by substantial evidence). However, the Commissioner promulgated new regulations in response to these holdings. Although these regulations altered the treating physician rule, the Second Circuit upheld the regulations’ validity in Schisler v. Sullivan, 3 F.3d 563, 568-569 (2d Cir.1993). The present rule has been described in the following manner: Under 20 C.F.R. § 404.1527(d)(2) (“ § 404.1527(d)(2)”), the medical conclusion of a “treating” physician is “controlling” if it is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” The treating physician’s opinion on the subject of medical" }, { "docid": "20061221", "title": "", "text": "considers whether the claimant has an impairment that is listed in Appendix 1 of the regulations. When the claimant has such an impairment, the [Commissioner] will find the claimant disabled. However, if the claimant does not have a listed impairment, the [Commissioner] must determine, under the fourth step, whether the claimant possesses the residual functional capacity to perform her past relevant work. Finally, if the claimant is unable to perform her past relevant work, the [Commissioner] determines whether the claimant is capable of performing any other work. Brown v. Apfel, 174 F.3d 59, 62 (2d Cir.1999) (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996)). The claimant bears the burden of proof with regard to the first four steps; the Commissioner bears the burden of proving the last step. Brown, 174 F.3d at 62. The Commissioner must consider the following in determining a claimant’s entitlement to benefits: “(1) the objective medical facts [and clinical findings]; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability ...; and (4) the claimant’s educational background, age, and work experience.” Id. (quoting Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983) (per curiam)). B. Application In opposing defendant’s motion, plaintiff argues that the ALJ’s decision is not supported by substantial evidence and is the result of legal error. Specifically, plaintiff argues that the ALJ failed to apply the “treating physician rule” to the medical opinions of Dr. Goldman by not giving those opinions “controlling weight.” As set forth below, the Court concludes that the ALJ failed to provide sufficient reasons for not giving controlling weight to the opinions of Dr. Goldman and failed to explain what, if any, weight was given to those opinions. Therefore, the case must be remanded for such a determination. 1. Substantial Gainful Activity At step one, the ALJ must determine whether the claimant is presently engaging in substantial gainful activity. 20 C.F.R. § 404.1520(b). Substantial work activity is work activity that involves doing significant physical or mental activities, 20 C.F.R. § 404.1572(a), and gainful work activity is work usually done for pay" }, { "docid": "23006419", "title": "", "text": "high school equivalency degree. And (7) he is not “disabled.” The Appeals Council denied DeChirico’s request for review, thereby making the ALJ’s ruling the final decision of the Commissioner. See Perez v. Chater, 77 F.3d 41, 44 (2d Cir.1996); 20 C.F.R. §§ 404.981, 416.1481. DeChirico then appealed the decision in the district court (Eugene H. Nickerson, Judge), which granted the Commissioner’s motion for judgment on the pleadings and dismissed the action. DeChirico now appeals that ruling, arguing (1) that the ALJ erred in concluding that he was not disabled per se; (2) that the ALJ also erred in failing to subpoena DeChirico’s Social Security file from the nine-year period when (prior to being incarcerated) DeChirico was receiving disability benefits; and (3) that there was insufficient evidence to support the ALJ’s conclusion that DeChirico was capable of performing sedentary or light work. Discussion I. The Applicability of Listing § 1.10 The Social Security regulations establish a five-step process for evaluating disability claims: First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a \"listed\" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.... [T]he claimant bears the burden of proof as to the first four steps, while the [Commissioner] must" }, { "docid": "22894633", "title": "", "text": "considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Commissioner next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evi dence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Commissioner will consider him [per se ] disabled.... Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Commissioner then determines whether there is other work which the claimant could perform. Talavera, 697 F.3d at 151 (alterations in original) (quoting DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir.1998)); see 20 C.F.R. § 404.1520. The Social Security regulations define residual functional capacity as the most the claimant can still do in a work setting despite the limitations imposed by his impairments. Id. § 404.1545. In assessing the residual functional capacity of a claimant with multiple impairments, the SSA considers all his “medically determinable impairments ..., including ... medically determinable impairments that are not ‘severe.’ ” Id. § 404.1545(a)(2). The claimant bears the burden of proof in the first four steps of the sequential inquiry; the Commissioner bears the burden in the last. See Clarification of Rules Involving Residual Functional Capacity Assessments, 68 Fed.Reg. 51,153, 51,154-55 (Aug. 26, 2003) (citing Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987)); Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996). Selian first argues that the ALJ erred in concluding that Selian’s fibromyalgia was not a medically determinable impairment. Specifically, Selian contends that the ALJ improperly disregarded the diagnosis of Selian’s treating physician, Dr. Mark Corey; improperly substituted her own medical judgments; and confused and misstated the medical evidence. We agree. The record indicates that Dr." }, { "docid": "1866575", "title": "", "text": "or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does- not have a listed impairment, the fourth inquiry is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam) (quotations in original); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999); 20 C.F.R. § 404.1520. 8. While the claimant has the burden of proof on the first four steps, the Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at 146 n. 5, 107 S.Ct. 2287; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir.1984). The final step is divided into two parts. First, the Commissioner must assess the claimant’s job qualifications by considering his physical ability, age, education, and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant’s qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76 L.Ed.2d 66 (1983). 9. In this case, the ALJ made the following findings with regard to the five-step process set forth above: (1) Plaintiff has not engaged in substantial gainful activity since June 3, 2010 (R. at 17, 19) ; (2) Plaintiffs back pain, asthma, anxiety, depression, coronary artery disease, hypertension, obesity, and substance abuse constitute “severe” impairments within the meaning of the Act (R. at 19-20);" }, { "docid": "21182241", "title": "", "text": "gainful activity by reason of any medically determinable physical or mental impairment ... which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d). The impairment must be of “such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). Federal regulations set forth a five-step analysis that the Commissioner must follow in evaluating disability claims: 1. The ALJ must consider whether the claimant is currently engaged in substantial gainful activity. 2. If not, the ALJ must consider whether the claimant has a “severe impairment” which limits her mental or physical ability to do basic work activities. 3. If the claimant has a “severe impairment,” the ALJ must ask whether, based solely on medical evidence, that limitation is listed in Appendix 1 of the regulations. 4. If the impairment is not “listed” in the regulations, the ALJ then asks whether she has residual functional capacity to perform her past work despite her severe impairment. 5. If she is unable to perform her past work, the burden shifts to the ALJ to prove that the claimant retains the residual functional capacity to perform alternative work. 20 C.F.R. §§ 404.1520, 416.920; Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.2004); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003) (citing Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.2002)). The claimant bears the burden of proof as to the first four steps, while the ALJ bears the burden of proof as to the fifth step. See Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000). In proceeding through the five-step analysis, the Commissioner must consider four factors: “(1) objective medical facts; (2) diagnosis or medical opinions based on these facts; (3) subjective evidence of pain and disability; and (4) the claimant’s educational background, age, and work experience.” Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983). In this case, the" }, { "docid": "19717135", "title": "", "text": "exists in the national economy.’ ” Shaw v. Chater, 221 F.3d 126, 131-32 (2d Cir.2000) (quoting 42 U.S.C. § 423(d)(2)(A)). In determining whether a claimant is disabled, the Commissioner is required to apply the five-step sequential process set forth in 20 C.F.R. § 404.1520. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999). While the claimant bears the burden of proving the first four steps, the burden shifts to the Commission at step five. Rosa, 168 F.3d at 77. In the first step, the Commissioner considers whether the claimant is presently working in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i); Rosa, 168 F.3d at 77. If the claimant is not so engaged, the Commissioner next considers whether the claimant has a “severe impairment” that significantly limits his physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii); Rosa, 168 F.8d at 77. If the severity requirement is met, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment that is listed in Appendix 1 of the regulations, or is equal to a listed impairment. 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Part 404, Subpart P, Appendix 1; Rosa, 168 F.3d at 77. If the claimant has such an impairment, there will be a finding of disability. If not, the fourth inquiry is to determine whether, despite the claimant’s severe impairment, the claimant’s residual functional capacity allows the claimant to perform his or her past work. 20 C.F.R. § 404.1520(a)(4)(iv); Rosa, 168 F.3d at 77. Finally, if a claimant is unable to perform past work, the Commissioner then determines whether there is other work, such as “light work” discussed infra, that the claimant could perform, taking into account, inter alia, the claimant’s residual functional capacity, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v); Rosa, 168 F.3d at 77. II. The ALJ’s Decision Using the five-step process, the ALJ found that: 1) Plaintiff had not engaged in any substantial gainful activity since February 29, 2008, the date of the accident; 2) Plaintiff has severe medically determinable impairments, namely cervical and lumbar syndromes and a" }, { "docid": "2787111", "title": "", "text": "F.3d at 77; Berry, 675 F.2d at 467. Once the claimant has fulfilled his burden, it shifts to the Commissioner at step five. See Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir.2009). This, however, is only a limited burden shift, in that the Commissioner “need only show that there is work in the national economy that the claimant can do; he need not provide additional evidence of the claimant’s residual functional capacity.” Id.; see also 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2). A. Treating Physician Rule Petrie first contends that the ALJ misapplied the Treating Physician Rule by failing to give various medical opinions controlling weight. He also argues that the ALJ had an obligation to re-contact Petrie’s treating sources when he found their opinions inadequate. Further, Petrie argues that, in giving his treating physicians’ opinions minimal weight, the ALJ failed to consider all relevant factors. Pe-trie’s objections have no merit. “A treating physician’s statement that the claimant is disabled cannot itself be determinative.” Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003) (internal quotation marks omitted). Nevertheless, under the “treating physician” rule, “a treating source’s opinion on the issue(s) of the nature and severity of [a claimant’s] impairment(s)” is given “controlling weight” if the opinion is “well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2); see also Green-Younger, 335 F.3d at 106; Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir.1993). “The opinion of a treating physician is accorded extra weight because the continuity of treatment he provides and the doctor/patient relationship he develops place him in a unique position to make a complete and accurate diagnosis of his patient.” Mongeur v. Heckler, 722 F.2d 1033, 1039 n. 2 (2d Cir.1983) (per curiam). The opinion of the treating physician “is not afforded controlling weight where ... the treating physician issued opinions that are not consistent with other substantial evidence in the record, such as the opinions of other medical experts.” Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.2004) (per curiam)." }, { "docid": "22226928", "title": "", "text": "The SSA has promulgated regulations prescribing a five-step analysis for evaluating disability claims. “In essence, if the Commissioner determines (1) that the claimant is not working, (2) that he has a ‘severe impairment,’ (3) that the impairment is not one [listed in Appendix 1 of the regulations] that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do.” Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.2002); see also Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000). The claimant bears the burden of proof on the first four steps, while the SSA bears the burden on the last step. See id. In this case, as we have indicated, the ALJ found that Green-Younger has fibro-myalgia and degenerative disc disease; that her impairments were severe but did not equal or exceed a listed impairment; and that she had the residual functional capacity to do sedentary work, involving six hours a day of sitting and two hours of standing or walking. The ALJ rejected the contrary opinion of Green-Younger’s treating physician, Dr. Helfand, that her limitations were more severe. The SSA recognizes a “treating physician” rule of deference to the views of the physician who has engaged in the primary treatment of the claimant. “A treating physician’s statement that the claimant is disabled cannot itself be determinative.” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). However, SSA regulations advise claimants that “a treating source’s opinion on the issue(s) of the nature and severity of your impairment(s) ” will be given “controlling weight” if the opinion is “well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record.” 20 C.F.R. § 404.1527(d)(2) (emphasis added). See also Shaw, 221 F.3d at 134; Rosa v. Callahan, 168 F.3d 72, 78-79 (2d Cir.1999) (“[T]he ALJ cannot arbitrarily substitute his own judgment for competent medical opinion.”). We conclude from the record" }, { "docid": "22731963", "title": "", "text": "he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). The Social Security Administration (the “SSA”) has promulgated a five step procedure for evaluating disability claims. 20 C.F.R. § 404.1520. This Circuit has implemented that procedure as follows: First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a “severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience_ Assuming the claimant does not have a listed impairment, the fourth inquiry is whether,' despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam); see also Pratts, 94 F.3d at 37 (stating five step procedure). “Once' a disability claimant proves that his severe impairment prevents him from performing his past work [ie., at step four], the [Commissioner] then has the burden of proving that the claimant still retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy.” Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986); see also Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996) (“If the claimant satisfies her burden of proving the requirements in the first four steps, the burden then shifts to the [Commissioner] to prove in the fifth step that the claimant is capable of working.”); Aubeuf v. Schweiker, 649 F.2d 107," }, { "docid": "21182242", "title": "", "text": "the regulations, the ALJ then asks whether she has residual functional capacity to perform her past work despite her severe impairment. 5. If she is unable to perform her past work, the burden shifts to the ALJ to prove that the claimant retains the residual functional capacity to perform alternative work. 20 C.F.R. §§ 404.1520, 416.920; Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir.2004); Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir.2003) (citing Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir.2002)). The claimant bears the burden of proof as to the first four steps, while the ALJ bears the burden of proof as to the fifth step. See Shaw v. Chater, 221 F.3d 126, 132 (2d Cir.2000). In proceeding through the five-step analysis, the Commissioner must consider four factors: “(1) objective medical facts; (2) diagnosis or medical opinions based on these facts; (3) subjective evidence of pain and disability; and (4) the claimant’s educational background, age, and work experience.” Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983). In this case, the ALJ adhered to the appropriate five-step analysis. At step one, the ALJ found that the plaintiff had not engaged in gainful activity since December 28, 1998. At steps two and three, the ALJ found that the medical evidence established the plaintiff was severely impaired by her neck, shoulder, and back injury, but that this impairment did not meet or equal the criteria of any impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App.l. At step four, the ALJ found that the plaintiff retained the functional capacity to perform her past relevant work as a sewing machine operator. Because the ALJ was satisfied the plaintiff, despite her impairment, could still perform the light work of sewing machine operator, he did not proceed to the fifth step. The plaintiff makes two primary arguments why the ALJ’s conclusions are incorrect: (1) the ALJ wrongly rejected the opinions of the plaintiffs treating physicians; and (2) the ALJ failed to properly assess the plaintiffs credibility and erred in rejecting her subjective complaints. D. Analysis 1. The Treating Physician Rule" }, { "docid": "20843929", "title": "", "text": "F.2d 985 (1st Cir.1988). SO ORDERED. . Citations to \"T” refer to the Administrative Transcript. (Docket No. 7). . General Order No. 18 provides, in pertinent part, that \"[t]he Magistrate Judge will treat the proceeding as if both parties had accompanied their briefs with a motion for judgment on the pleadings.” . This five-step process is detailed as follows: First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a \"severe impairment” which significantly limits his physical or mental ability to do basic work activities. If the claimant has such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a \"listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.1982) (per curiam); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999); 20 C.F.R. §§ 416.920, 404.1520. . “The 'treating physician’s rule’ is a series of regulations set forth by the Commissioner in 20 C.F.R. § 404.1527 detailing the weight to be accorded a treating physician’s opinion.” de Roman v. Barnhart, No. 03Civ.0075, 2003 WL 21511160, at *9 (S.D.N.Y. July 2, 2003)." } ]

[ { "docid": "14496472", "title": "", "text": "argue that district court erred because, as a matter of state law, Cacique is not entitled to a royalty and therefore the Marquez sales information is not relevant to an issue in the case. Alternatively, appellants argue that the district court should have prohibited discovery of the sales information because it is, itself, a valuable trade secret belonging to Cacique’s chief competitor and a non-party. See F.R.C.P. Rule 26(c)(7). We do not reach this latter issue because we hold that the sales information is not relevant to an issue in the case. II. Jurisdiction and Standard of Review We have jurisdiction over this interlocutory appeal even though piecemeal appeals are rarely entertained. A contempt order and imposition of sanctions on a non-party for failure to obey a discovery order or subpoena is a final order for purposes of 28 U.S.C. § 1291. See In re Subpoena Served on Cal. Pub. Util. Comm., 813 F.2d 1473, 1476 (9th Cir.1987). The issues raised in this appeal are primarily questions of law reviewed de novo. Though contempt orders and the imposition of sanctions are reviewed for an abuse of discretion, see Hook v. Arizona Dep’t of Corrections, 107 F.3d 1397, 1403 (9th Cir.), cert. denied, — U.S. -, 118 S.Ct. 171, 139 L.Ed.2d 114 (1997), appellants do not directly challenge the contempt order. Instead, appellants challenge the underlying decision to enforce Cacique’s discovery request. If the order disobeyed is vacated then the “contempt order naturally falls.” Thomassen v. United States, 835 F.2d 727, 732 (9th Cir.1987). Discovery decisions are also ordinarily reviewed for an abuse of discretion. See Zimmerman v. Bishop, 25 F.3d 784, 789 (9th Cir.), cert. denied, 513 U.S. 1043, 115 S.Ct. 637, 130 L.Ed.2d 543 (1994). But whether there is an issue to which the information sought is relevant is a question of state law, and the district court’s conclusions of state law are reviewed de novo as questions of law. See Gibson v. County of Riverside, 132 F.3d 1311, 1312 (9th Cir.1997). Enforcing a discovery request for irrelevant information is a per se abuse of discretion. See Epstein v." } ]

[ { "docid": "23244563", "title": "", "text": "confusion” requires the factfinder to determine whether a “reasonably prudent consumer in the marketplace is likely to be confused as to the origin of the good or service bearing one of the marks.” Dreamwerks, 142 F.3d at 1129 (internal quotation marks omitted). We have recognized two distinct claims in the trademark infringement context: forward confusion and reverse confusion. See id. at 1130 n. 5. Forward confusion occurs when consumers believe that goods bearing the junior mark came from, or were sponsored by, the senior mark holder. See id. at 1129-30 & n. 5. To avoid summary judgment on a forward confusion claim, Deptula must raise a material question of fact regarding whether the buying public thought that Surfvivor was either the source of, or was sponsoring, the television show and its product line. By contrast, reverse confusion occurs when consumers dealing with the senior mark holder believe that they are doing business with the junior one. See id. To survive a summary judgment motion on a reverse confusion claim, a question of material fact would have to be raised as to whether consumers believed that Survivor was either the source of, or was a sponsor of, Deptula’s wares. We address each the ory in turn, and then discuss the disposition of Deptula’s state law claims, and motion to compel discovery. A. Forward Confusion Claim We need not determine whether Deptula raised a material issue of fact on the forward confusion claim. Deptula may not proceed on this theory because he failed to reference it in his complaint. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 929-30 (9th Cir.2004) (upholding dismissal of a claim where the complaint contained no facts in support of that claim). Deptula did not seek an opportunity to amend his complaint, relying instead on his argument that he sufficiently pled a claim for forward confusion. Accordingly, Deptula has no cognizable “forward confusion” claim to review on appeal. See id. B. Reverse Confusion Claim To analyze likelihood of confusion, we consider the following eight factors, generally referred to as the Sleek-craft factors: (1) strength of" }, { "docid": "23244575", "title": "", "text": "identical to the Sleekcraft test. See Carrington v. Sears, Roebuck & Co., 5 Haw.App. 194, 198-200, 683 P.2d 1220 (1984) (referring to H.R.S. § 482-^l(a) and Hawaii common-law). Therefore, the state reverse confusion claim suffers the same fate as the federal infringement claim. Cf. Americana Trad. Inc., 966 F.2d at 1290 n. 1 (permitting state law claims to proceed where they mirrored the federal claims). Deptula provided no legal support for his common-law “unfair practices” claim. Rather, Deptula’s citations referenced only state law infringement claims. Because Deptula did not support his common-law unfair practices claim by citation to governing law, he has waived the claim. See Howard v. Everex Sys., Inc., 228 F.3d 1057, 1069 n. 18 (9th Cir.2000) (concluding that failure to provide any legal argument in support of a contention waived that argument). D. Discovery Order The magistrate judge limited discovery in this case to information regarding t-shirts, sunscreen and lip balm, on the ground that any other discovery would be irrelevant. The magistrate judge, who was intimately familiar with the details of this case, considered the letter briefs that were filed by the parties on this issue and the discovery that had been conducted by the parties. In response to Interrogatories, Deptula explicitly identified t-shirts, sunscreen and lip balm as the infringing products. Litigants “may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.” Fed.R.Civ.P. 26(b)(1). Relevant information for purposes of discovery is information “reasonably calculated to lead to the discovery of admissible evidence.” Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1470 (9th Cir.1992) (citation omitted). District courts have broad discretion in determining relevancy for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.2002). The issue in this case is whether Survivor’s related products infringe on Surfvivor’s senior mark. Surfvivor itself identified the related infringing products as t-shirts, sunscreen and lip balm. The magistrate judge acted well within her discretion in limiting discovery to those matters Surfvivor itself had identified as the related infringing products. IV. CONCLUSION Application of the Sleekcraft factors to" }, { "docid": "23244577", "title": "", "text": "the facts of this case does not raise a material issue of fact regarding actual confusion between the Surfvivor and Survivor marks. The trial court’s entry of summary judgment in favor of Survivor was appropriate, and its discovery rulings were well within its discretionary boundaries. Because Deptula did not raise a forward confusion claim in his complaint, and did not seek leave to amend, his forward confusion claim was not preserved. AFFIRMED. Each party is to bear its costs on appeal. . Deptula contends that in Cacique, Inc. v. Robert Reiser & Co., Inc., 169 F.3d 619, 622 (9th Cir.1999), we held that a denial of discovery on relevancy grounds involves a question of law reviewed de novo. Deptula posits that determining the relevance of the evidence in a trademark infringement case requires an interpretation of whether his and Survivor's goods are \"related,” which he regards as a legal issue. We disagree. Cacique required de novo review because the relevance of the evidence in that case depended upon an interpretation of state law. See Cacique, 169 F.3d at 622. The district court’s interpretation of state law is a question of law reviewed de novo. See Gibson v. County of Riverside, 132 F.3d 1311, 1312 (9th Cir.1997). . We take this opportunity to clarify an apparent inconsistency in our caselaw. The district court did not examine the strength of the senior Surfvivor mark, relying on our holding in Walter v. Mattel, Inc., 210 F.3d 1108, 1111 n. 2 (9th Cir.2000), that \"the inquiry[in reverse confusion cases] focuses on the strength of the junior mark because the issue is whether the junior mark is so strong as to overtake the senior mark.” We understand the district court’s confusion, as Walter could be read to imply that the strength of the plaintiff's senior mark is irrelevant in reverse confusion cases. See Walter, 210 F.3d at 1111 n. 2. However, Walter contained no express holding regarding the irrelevancy of the senior mark. Accordingly, we adhere to the approach in the case that introduced the reverse confusion concept in this circuit, Dreamwerks, 142 F.3d at" }, { "docid": "2979880", "title": "", "text": "complete defense to allegations of infringement of both the “All-in-One” and “The Write Choice” trademarks. Market-quest timely appealed. STANDARD OF REVIEW We review the district court’s grant of summary judgment de novo. KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596, 602 (9th Cir. 2005) (KP Permanent II). We view the evidence in the light most favorable to Marketquest and determine “whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Id. We are mindful that “summary judgment is generally disfavored in the trademark arena” due to “the intensely factual nature of trademark disputes.” Id. (quoting Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1140 (9th Cir. 2002)). ANALYSIS I. Marketquest’s pleading was adequate to support a cause of action for trademark infringement under a reverse confusion theory of likely confusion. The Lanham Act provides a cause of action for the owner of a registered trademark against any person who, without consent of the owner, uses the trademark in commerce in connection with the sale or advertising of goods or services, when such use is likely to cause confusion. 15 U.S.C. § 1114(1). The validity of Marketquest’s trademarks is not disputed in this appeal. Thus, the question is whether there is a likelihood of confusion; that is, whether Defendants’ “actual practice^ were] likely to produce confusion in the minds of consumers about the origin of the goods ... in question.” KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 117, 125 S.Ct. 542, 160 L.Ed.2d 440 (2004) (KP Permanent I). We have recognized two theories of consumer confusion that support a claim of trademark infringement: forward confusion and reverse confusion. Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 630 (9th Cir. 2005). “Forward confusion occurs when consumers believe that goods bearing the junior mark came from, or were sponsored by, the senior mark holder.” Id. For example, consumers would experience forward confusion if they believed that Defendants’ 2011 cata-logue came from Marketquest because it featured the phrase “AU-in-One.” “By contrast, reverse confusion occurs" }, { "docid": "5381984", "title": "", "text": "decision to bifurcate the trial; and (6) the district court’s jury instructions and special verdict form. Furthermore, M2 Software seeks attorneys’ fees under the Lanham Act, 15 U.S.C. § 1117. As discussed below, we affirm because the district court did not err in determining there was no likelihood of confusion between the marks. In addition, the district court acted within its discretion in managing the trial and any errors were harmless. A. The District Court’s Grant of Partial Summary Judgment This case deals with “two distinct claims in the trademark infringement context: forward confusion and reverse confusion.” Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 630 (9th Cir.2005). Forward confusion occurs when consumers mistakenly associate a junior user’s mark with that of a “well-known senior mark.” Dreamwerks Prod. Group, Inc. v. SKG Studio, 142 F.3d 1127, 1130 n. 5 (9th Cir.1998). Reverse confusion cases, however, involve consumers dealing with a senior trademark-holder believing all the while that they are doing business with a junior user. See Surfvivor Media, Inc., 406 F.3d at 630. Both reverse and forward confusion cases require the plaintiff to demonstrate a likelihood of confusion among consumers. Therefore, to survive summary judgment on its forward confusion claim in this case, M2 Software must raise a material question of fact whether the general public and the music industry members thought that M2 Software was the source of Madacy’s CDs. Furthermore, to withstand summary judgment on its reverse confusion claim, M2 Software must demonstrate that a question of material fact remains whether music industry members believed that Ma-dacy was the source of M2 Software’s goods. The test of trademark infringement under state, federal, and common law is whether there will be a likelihood of confusion. See Cleary v. News Corp., 30 F.3d 1255, 1262-63 (9th Cir.1994). To determine whether there is a likelihood of confusion between the parties’ allegedly related goods and services, we consider the following eight Sleekcraft factors: (1) strength of the mark; (2) proximity of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) type of goods" }, { "docid": "23244570", "title": "", "text": "favors Survivor. 3. Similarity of the Marks In considering the degree of similarity between the two marks, courts should analyze each mark within the context of other identifying features. See Entrepreneur Media, 279 F.3d at 1144 (suggesting the examination of marks in their entirety). We also ask whether the marks are similar in sight, sound, and meaning. See id. The visual subfactor favors Survivor. Survivor makes a strong argument that because its mark is usually accompanied by the distinctive slogan “outwit[,] outplay[,] outlast,” or a stylized graphic, the marks are dissimilar. Cf. Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d 482, 487 (9th Cir.1981) (recognizing that when a challenged mark is accompanied by the logo of the manufacturer, confusion is unlikely). The “sound” subfactor favors Deptula. Phonetically, “Survivor” and “Surfvivor” are nearly identical. However, the “meaning” subfactor slightly favors Survivor. The word “survivor ” evokes its commonly understood meaning: one who “continue[s] to exist or live.” Merriam-Webster’s Collegiate Dictionary, 10th ed. 1187 (1999). However “surfvivor,” a coined term, connotes a more precise reference to surfing. Examining the marks in their relative entirety does not reflect the existence of a material issue of fact regarding the similarity of the marks. The subfactors do not weigh in favor of either party. 4. Evidence of Actual Confusion Evidence of actual confusion by consumers is strong evidence of likelihood of confusion. See Rodeo Collection v. West Seventh, 812 F.2d 1215, 1219 (9th Cir.1987). In analyzing this factor, we may consider whether merchants and non-purchasing members of the public, as well as actual consumers, were confused. See Americana Trad. Inc. v. Russ Berrie & Co., 966 F.2d 1284, 1289 (9th Cir.1992); see also Karl Storz Endoscopy-America, Inc. v. Surgical Tech., Inc., 285 F.3d 848, 854 (9th Cir.2002). As noted above, there is scant evidence of actual confusion in the record. A single retailer and a single customer mistook one Survivor product as Deptula’s. A survey commissioned by Survivor showed an absence of significant confusion. Cf. Playboy Enterprises v. Netscape Communications, 354 F.3d 1020, 1026 (9th Cir.2004) (“actual confusion among significant numbers of" }, { "docid": "23244564", "title": "", "text": "have to be raised as to whether consumers believed that Survivor was either the source of, or was a sponsor of, Deptula’s wares. We address each the ory in turn, and then discuss the disposition of Deptula’s state law claims, and motion to compel discovery. A. Forward Confusion Claim We need not determine whether Deptula raised a material issue of fact on the forward confusion claim. Deptula may not proceed on this theory because he failed to reference it in his complaint. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 929-30 (9th Cir.2004) (upholding dismissal of a claim where the complaint contained no facts in support of that claim). Deptula did not seek an opportunity to amend his complaint, relying instead on his argument that he sufficiently pled a claim for forward confusion. Accordingly, Deptula has no cognizable “forward confusion” claim to review on appeal. See id. B. Reverse Confusion Claim To analyze likelihood of confusion, we consider the following eight factors, generally referred to as the Sleek-craft factors: (1) strength of the mark(s); (2) relatedness of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels; (6) degree of consumer care; (7) the defendants’ intent; (8) likelihood of expansion. Dreamwerks, 142 F.3d at 1129 (citing to AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49) (9th Cir.1979) (“Sleekcraft”). The test is a fluid one and the plaintiff need not satisfy every factor, provided that strong showings are made with respect to some of them. See id. at 1129-30, 1132 (allowing case to proceed past summary judgment where the plaintiff overwhelmingly satisfied three Sleekcraft factors). 1. Strength of the Mark(s) i. The Strength of the Senior (Surfvi-vor) Mark The purpose of examining the strength of the plaintiffs mark is to determine the scope of trademark protection to which the mark is entitled. Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1141 (9th Cir.2002). The more unique the mark, the greater the degree of protection. See id. Trademarks are divided into five categories. The two strongest sets of marks are “arbitrary” and “fanciful”" }, { "docid": "12870289", "title": "", "text": "on Amazon’s motion for summary judgment, the district court declined to resolve the issue of whether Amazon is using MTM’s mark in commerce, and, instead, addressed the issue of likelihood of confusion. In evaluating likelihood of confusion, the district court utilized the eight-factor test set forth in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir.1979). Relying on our recent decision in Network Automation, Inc. v. Advanced Systems Concepts, 638 F.3d 1137 (9th Cir.2011), the district court focused in particular on the following factors: (1) the strength of MTM’s mark; (2) the evidence of actual confusion and the evidence of no confusion; (3) the type of goods and degree of care likely to be exercised by the purchaser; and (4) the appearance of the product listings and the surrounding context on the screen displaying the results page. Upon reviewing the factors, the district court concluded that the relevant Sleekcraft factors established “that there is no likelihood of confusion in Amazon’s use of MTM’s trademarks in its search engine or display of search results.” Therefore, the district court granted Amazon’s motion for summary judgment. II. Jurisdiction and Standard of Review We have jurisdiction pursuant to 28 U.S.C. § 1291. “The decision to grant summary judgment in a trademark infringement claim is reviewed de novo, and all reasonable inferences are to be drawn in favor of the non-moving party.” Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 630 (9th Cir.2005). “Although disfavored in trademark infringement cases, summary judgment may be entered when no genuine issue of material fact exists.” Id. Indeed, in several trademark cases, we have concluded that there is no likelihood of confusion as a matter of law and affirmed the district court’s grant of summary judgment in favor of the defendant. See, e.g., One Indus., LLC v. Jim O’Neal Distrib., 578 F.3d 1154, 1162-65 (9th Cir.2009); M2 Software, Inc. v. Madacy Entm’t, 421 F.3d 1073, 1080-85 (9th Cir.2005); Surfvivor Media, 406 F.3d at 631-34. III. Discussion To prevail on a claim of trademark infringement under the Lanham Act, “a trademark holder must show that the defendant’s use" }, { "docid": "23244561", "title": "", "text": "against Survivor for trademark infringement. During the course of pretrial litigation, Deptula petitioned the court for an order compelling discovery of any Survivor goods or services beyond “t-shirts, sunscreen and lip-balm.” In response, the court limited discovery to Survivor t-shirts, sunscreen and lip balm, concluding that any other evidence would be irrelevant. Survivor subsequently moved for summary judgment, which was granted on the basis that Deptula failed to present sufficient evidence to prove one of the elements of a trademark infringement claim— whether the marks are similar enough to create a “likelihood of confusion.” Be cause Deptula’s state law claims relied on the same likelihood of confusion standard as Deptula’s federal claim, the state law claims were also dismissed. Deptula filed a timely appeal. II. STANDARDS OF REVIEW The decision to grant summary judgment in a trademark infringement claim is reviewed de novo, and all reasonable inferences are to be drawn in favor of the non-moving party. See Dreamwerks Prod. Group, Inc. v. SKG Studio, 142 F.3d 1127, 1129 (9th Cir.1998). We may affirm on any basis finding support in the record. Commonwealth of the Northern Mariana Islands v. United States, 399 F.3d 1057, 1060 (9th Cir.2005). Although disfavored in trademark infringement cases, summary judgment may be entered when no genuine issue of material fact exists. See Thane Int'l, Inc. v. Trek Bicycle Corp., 305 F.3d 894, 901-02 (9th Cir.2002). Discovery rulings are reviewed for an abuse of discretion. See Garneau v. City of Seattle, 147 F.3d 802, 812 (9th Cir.1998). This standard also applies to rulings regarding the relevance of evidence. See id. III. ANALYSIS Deptula asserts infringement claims under the Lanham Act, 15 U.S.C. § 1114, and related state law claims. A successful trademark infringement claim under the Lanham Act requires a showing that the claimant holds a protectable mark, and that the alleged infringer’s imitating mark is similar enough to “cause confusion, or to cause mistake, or to deceive.” KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., — U.S. -, -, 125 S.Ct. 542, 547, 160 L.Ed.2d 440 (2004) (citation omitted). The test for “likelihood of" }, { "docid": "20570748", "title": "", "text": "is often a fact-intensive inquiry, courts are generally reluctant to decide this issue at the summary judgment stage. Thane Int’l, Inc. v. Trek Bicycle Corp., 305 F.3d 894, 901-02 (9th Cir.2002). However, in cases where the evidence is clear and tilts heavily in favor of a likelihood of confusion, we have not hesitated to affirm summary judgment on this point. See, e.g., Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002, 1019 (9th Cir.2004) (affirming summary judgment where the marks were “legally identical,” the goods at issue were related, and the marketing channels overlapped). As part of our de novo review, we conclude as a matter of law that likelihood of confusion is clear cut here and that Volkswagen and Audi have made out a prima facie case of infringement. We do not direct judgment on this issue, however, because the district court reserved judgment on Auto Gold’s defense of “first sale.” The case must be remanded for consideration of Auto Gold’s defenses. A “[l]ikelihood of confusion ‘exists when customers viewing [a] mark would probably assume that the product or service it represents is associated with the source of a different product or service identified by a similar mark.’ ” Fuddruckers, Inc. v. Doc’s B.R. Others, Inc., 826 F.2d 837, 845 (9th Cir.1987) (quoting Lindy Pen Co. v. Bic Pen Corp., 725 F.2d 1240, 1243 (9th Cir.1984)). The Ninth Circuit employs an eight-factor test (the “Sleekcraft ” factors) to determine the likelihood of confusion: (1) strength of the mark(s); (2) relatedness of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels; (6) degree of consumer care; (7) defendant’s intent; (8) likelihood of expansion. Surfvivor Media, Inc. v. Survivor Productions, 406 F.3d 625, 631 (9th Cir.2005); see also AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir.1979). These elements are not applied mechanically; courts may examine some or all of the factors, depending on their relevance and importance. See Surfvivor, 406 F.3d at 631; Thane Int’l, 305 F.3d at 901 (“The list of factors is not a score-card — whether a party" }, { "docid": "23244574", "title": "", "text": "of Expansion To resolve this factor, we must determine whether existence of the allegedly infringing mark is hindering the plaintiffs expansion plans. See Entrepreneur Media, 279 F.3d at 1152. Deptula has presented no specific evidence related to this factor. Although Deptula expressed interest in expanding his product line, mere speculation is not evidence. See Paladin Assoc., Inc. v. Montana Power Co., 328 F.3d 1145, 1161 (9th Cir.2003). Deptula’s complete inability to adduce any concrete evidence of expansion plans tilts this factor in favor of Survivor. See Entrepreneur Media, 279 F.3d at 1152. 9. Overall Analysis of the Sleekcraft Factors The distribution of the Sleekcraft factors does not raise a material issue of fact regarding likelihood of confusion. Cf. Dreamwerks, 142 F.3d at 1130-32 (holding summary judgment inappropriate where the Plaintiff satisfied three Sleekcraft factors and the other factors carried “little weight”). C. State Law Claims Deptula raised a number of state law infringement and unfair competition claims pursuant to Hawaii statute and common law. The infringement claims are governed by a “likelihood of confusion” standard identical to the Sleekcraft test. See Carrington v. Sears, Roebuck & Co., 5 Haw.App. 194, 198-200, 683 P.2d 1220 (1984) (referring to H.R.S. § 482-^l(a) and Hawaii common-law). Therefore, the state reverse confusion claim suffers the same fate as the federal infringement claim. Cf. Americana Trad. Inc., 966 F.2d at 1290 n. 1 (permitting state law claims to proceed where they mirrored the federal claims). Deptula provided no legal support for his common-law “unfair practices” claim. Rather, Deptula’s citations referenced only state law infringement claims. Because Deptula did not support his common-law unfair practices claim by citation to governing law, he has waived the claim. See Howard v. Everex Sys., Inc., 228 F.3d 1057, 1069 n. 18 (9th Cir.2000) (concluding that failure to provide any legal argument in support of a contention waived that argument). D. Discovery Order The magistrate judge limited discovery in this case to information regarding t-shirts, sunscreen and lip balm, on the ground that any other discovery would be irrelevant. The magistrate judge, who was intimately familiar with the details of" }, { "docid": "23244560", "title": "", "text": "merchandise, including t-shirts, shorts, and hats. The Survivor mark consists of the word “Survivor” in block script, and is often accompanied by the words “outwit[,] out-play[, and] outlast,” or is superimposed on a stylized graphic suggesting the location of a particular series. Survivor’s producers acknowledge awareness of Deptula’s mark. 3. Evidence of Actual Confusion After Siorvivor aired, Deptula encountered a few people who wondered whether his business was sponsored by Survivor. One retailer and one customer mistook Survivor sunscreen for Deptula’s product, and one trade show attendee thought that Deptula’s business was endorsed by Survivor’s producers. Survivor never received any complaints from confused customers, and a survey commissioned by Survivor revealed that fewer than two percent of four hundred and two sunscreen purchasers were confused by the two marks. None of Deptu-la’s customers ever returned any Surfvivor goods because of a mistaken belief that the goods they purchased were produced or endorsed by Survivor. No merchant stopped doing business with Deptula on account of confusion between the product lines. B. Procedural Background Deptula filed suit against Survivor for trademark infringement. During the course of pretrial litigation, Deptula petitioned the court for an order compelling discovery of any Survivor goods or services beyond “t-shirts, sunscreen and lip-balm.” In response, the court limited discovery to Survivor t-shirts, sunscreen and lip balm, concluding that any other evidence would be irrelevant. Survivor subsequently moved for summary judgment, which was granted on the basis that Deptula failed to present sufficient evidence to prove one of the elements of a trademark infringement claim— whether the marks are similar enough to create a “likelihood of confusion.” Be cause Deptula’s state law claims relied on the same likelihood of confusion standard as Deptula’s federal claim, the state law claims were also dismissed. Deptula filed a timely appeal. II. STANDARDS OF REVIEW The decision to grant summary judgment in a trademark infringement claim is reviewed de novo, and all reasonable inferences are to be drawn in favor of the non-moving party. See Dreamwerks Prod. Group, Inc. v. SKG Studio, 142 F.3d 1127, 1129 (9th Cir.1998). We may affirm on" }, { "docid": "23244558", "title": "", "text": "RAWLINSON, Circuit Judge: Plaintiffs-Appellants Surfvivor Media, Inc., and Peter S. Deptula (collectively Surfvivor or Deptula) appeal the grant of summary judgment in favor of Defendants-Appellees Survivor Productions, L.L.C., et al. (collectively Survivor), on Surfvivor’s federal and state trademark infringement claims. Surfvivor also challenges the magistrate judge’s ruling limiting discovery to allow examination of only certain Survivor goods. Because no material issue of fact was raised reflecting confusion between the marks, we affirm the entry of summary judgment in favor of Survivor. We also hold that the discovery rulings were well within the bounds of the court’s discretion. I. FACTUAL & PROCEDURAL BACKGROUND A. Factual Background 1. Plaintiffs-Appellants and the Surfvivor Mark Deptula holds three federal trademarks for the mark “Surfvivor,” an amalgamation of the words “surf’ and “survivor.” Dep-tula has adorned the majority of his Hawaiian beach-themed products, ranging from sunscreen, to t-shirts, to surfboards, with that mark. Of these products, approximately thirty to fifty percent of Plaintiffs wares are emblazoned with the Surf-vivor mark alone. The remaining wares sport a tiny Surfvivor mark along with a third-party logo, such as college insignia. Visually, the Surfvivor mark consists'of the term “Surfvivor” in block or cursive writing, often accompanied by a stylized graphic, such as a sun or a surfer. Deptu-la has been using this' mark for several years and has advertised his wares on local television and radio shows, on his website, and at local trade shows. Surfvivor goods are primarily sold to Hawaiian consumers through the local university, a chain of drugstores, military exchanges, and Hawaiian branches of major retailers. Dep-tula would like to expand Surfvivor’s out-of-state presence, but has not made any firm plans to do so. 2. Defendants-Appellees and the Survivor Mark Several years after Deptula coined the “Surfvivor” name, the Defendants-Appel-lees began broadcasting a reality television show, Survivor, involving a cast that must survive in extreme outdoor conditions. The show has been a viewer favorite for several years. Survivor’s producers created a special Survivor logo for advertising and marketing purposes. As with the Surfvivor mark, the Survivor mark is emblazoned on a wide range of consumer" }, { "docid": "23244576", "title": "", "text": "this case, considered the letter briefs that were filed by the parties on this issue and the discovery that had been conducted by the parties. In response to Interrogatories, Deptula explicitly identified t-shirts, sunscreen and lip balm as the infringing products. Litigants “may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.” Fed.R.Civ.P. 26(b)(1). Relevant information for purposes of discovery is information “reasonably calculated to lead to the discovery of admissible evidence.” Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1470 (9th Cir.1992) (citation omitted). District courts have broad discretion in determining relevancy for discovery purposes. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.2002). The issue in this case is whether Survivor’s related products infringe on Surfvivor’s senior mark. Surfvivor itself identified the related infringing products as t-shirts, sunscreen and lip balm. The magistrate judge acted well within her discretion in limiting discovery to those matters Surfvivor itself had identified as the related infringing products. IV. CONCLUSION Application of the Sleekcraft factors to the facts of this case does not raise a material issue of fact regarding actual confusion between the Surfvivor and Survivor marks. The trial court’s entry of summary judgment in favor of Survivor was appropriate, and its discovery rulings were well within its discretionary boundaries. Because Deptula did not raise a forward confusion claim in his complaint, and did not seek leave to amend, his forward confusion claim was not preserved. AFFIRMED. Each party is to bear its costs on appeal. . Deptula contends that in Cacique, Inc. v. Robert Reiser & Co., Inc., 169 F.3d 619, 622 (9th Cir.1999), we held that a denial of discovery on relevancy grounds involves a question of law reviewed de novo. Deptula posits that determining the relevance of the evidence in a trademark infringement case requires an interpretation of whether his and Survivor's goods are \"related,” which he regards as a legal issue. We disagree. Cacique required de novo review because the relevance of the evidence in that case depended upon an interpretation of state law. See Cacique," }, { "docid": "23244572", "title": "", "text": "consumers provides strong support for the likelihood of confusion”) (footnote reference omitted). This factor favors Survivor. 5. Marketing Channels We must determine whether the parties distribute their goods in the same marketing channels. See Entrepreneur Media, 279 F.3d at 1151. We agree with the district court that there is minor overlap within local Hawaiian distribution channels. For example, both Survivor and Surfvivor merchandise are sold at Hawaiian J.C. Penny stores. This factor slightly favors Deptula. 6. Degree of Consumer Care In analyzing the degree of care that a consumer might exercise in purchasing the parties’ goods, the question is whether a “reasonably prudent consumer” would take the time to distinguish between the two product lines. Brookfield Comm., Inc. v. West Coast Entertainment Corp., 174 F.3d 1036, 1060 (9th Cir.1999). Our analysis of this factor is complicated by the fact that the parties sell a wide range of goods at different prices. No clear standard exists for analyzing moderately priced goods, such as non-designer clothing. Compare Saks & Co. v. Hill, 843 F.Supp. 620, 624 (S.D.Cal.1993) (noting that customers exercise considerable care in purchasing clothing); and Surf Line Hawaii Ltd. v. Ahakuelo, 13 U.S.P.Q.2d 1975, 1979 (D.Hawai’i 1989) (commenting that customers do not exhibit much care in purchasing goods such as t-shirts). With respect to small, inexpensive goods such as sunscreen, the consumer is likely to exercise very little care. See Brookfield Comm., 174 F.3d at 1060. Thus, with respect to small items, the “degree of consumer care” factor favors Deptula. However, as to the other items, the “degree of consumer care” factor does not favor either party. 7. Defendants’ Intent Survivor’s producers acknowledge being aware of the Surfvivor mark before airing their show, but contend that they lacked intent to infringe upon that mark. Even, if true, that fact is not dispositive. “[A]bsence of malice, is no defense .to trademark infringement[.]” Petsmart, 281 F.3d at 843 (citation omitted). Further, “where the alleged infringer adopted his mark with knowledge, actual or constructive, that it was another’s trademark,” resolution of this factor favors Surfvivor. Brookfield Comm., 174 F.3d at 1059. 8. Likelihood" }, { "docid": "23244573", "title": "", "text": "(noting that customers exercise considerable care in purchasing clothing); and Surf Line Hawaii Ltd. v. Ahakuelo, 13 U.S.P.Q.2d 1975, 1979 (D.Hawai’i 1989) (commenting that customers do not exhibit much care in purchasing goods such as t-shirts). With respect to small, inexpensive goods such as sunscreen, the consumer is likely to exercise very little care. See Brookfield Comm., 174 F.3d at 1060. Thus, with respect to small items, the “degree of consumer care” factor favors Deptula. However, as to the other items, the “degree of consumer care” factor does not favor either party. 7. Defendants’ Intent Survivor’s producers acknowledge being aware of the Surfvivor mark before airing their show, but contend that they lacked intent to infringe upon that mark. Even, if true, that fact is not dispositive. “[A]bsence of malice, is no defense .to trademark infringement[.]” Petsmart, 281 F.3d at 843 (citation omitted). Further, “where the alleged infringer adopted his mark with knowledge, actual or constructive, that it was another’s trademark,” resolution of this factor favors Surfvivor. Brookfield Comm., 174 F.3d at 1059. 8. Likelihood of Expansion To resolve this factor, we must determine whether existence of the allegedly infringing mark is hindering the plaintiffs expansion plans. See Entrepreneur Media, 279 F.3d at 1152. Deptula has presented no specific evidence related to this factor. Although Deptula expressed interest in expanding his product line, mere speculation is not evidence. See Paladin Assoc., Inc. v. Montana Power Co., 328 F.3d 1145, 1161 (9th Cir.2003). Deptula’s complete inability to adduce any concrete evidence of expansion plans tilts this factor in favor of Survivor. See Entrepreneur Media, 279 F.3d at 1152. 9. Overall Analysis of the Sleekcraft Factors The distribution of the Sleekcraft factors does not raise a material issue of fact regarding likelihood of confusion. Cf. Dreamwerks, 142 F.3d at 1130-32 (holding summary judgment inappropriate where the Plaintiff satisfied three Sleekcraft factors and the other factors carried “little weight”). C. State Law Claims Deptula raised a number of state law infringement and unfair competition claims pursuant to Hawaii statute and common law. The infringement claims are governed by a “likelihood of confusion” standard" }, { "docid": "23244569", "title": "", "text": "the Junior (Survivor) Mark The Survivor series has high public recognition and the producers heavily advertise the show. These circumstances increase the strength of a mark and also weigh in favor of Deptula. See Cohn v. Petsmart, 281 F.3d 837, 841 (9th Cir.2002) (describing the effect of a strong junior mark). 2. Relatedness of the Goods The standard for deciding whether the parties’ goods or services are “related” is whether customers are “likely to associate” the two product lines. Dreamwerks, 142 F.3d at 1131. We must also consider whether the buying public could reasonably conclude that the products came from the same source. See Sleekcraft, 599 F.2d at 348 n. 10. In this case, although both parties portray an outdoor theme, there is no material evidence in the record that customers are likely to associate the two products or conclude that the products come from the same source. In fact, the evidence indicates that only one retailer and one customer may have concluded that the products had a common source. Resolution of this Sleekcraft factor favors Survivor. 3. Similarity of the Marks In considering the degree of similarity between the two marks, courts should analyze each mark within the context of other identifying features. See Entrepreneur Media, 279 F.3d at 1144 (suggesting the examination of marks in their entirety). We also ask whether the marks are similar in sight, sound, and meaning. See id. The visual subfactor favors Survivor. Survivor makes a strong argument that because its mark is usually accompanied by the distinctive slogan “outwit[,] outplay[,] outlast,” or a stylized graphic, the marks are dissimilar. Cf. Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F.2d 482, 487 (9th Cir.1981) (recognizing that when a challenged mark is accompanied by the logo of the manufacturer, confusion is unlikely). The “sound” subfactor favors Deptula. Phonetically, “Survivor” and “Surfvivor” are nearly identical. However, the “meaning” subfactor slightly favors Survivor. The word “survivor ” evokes its commonly understood meaning: one who “continue[s] to exist or live.” Merriam-Webster’s Collegiate Dictionary, 10th ed. 1187 (1999). However “surfvivor,” a coined term, connotes a more precise" }, { "docid": "23244578", "title": "", "text": "169 F.3d at 622. The district court’s interpretation of state law is a question of law reviewed de novo. See Gibson v. County of Riverside, 132 F.3d 1311, 1312 (9th Cir.1997). . We take this opportunity to clarify an apparent inconsistency in our caselaw. The district court did not examine the strength of the senior Surfvivor mark, relying on our holding in Walter v. Mattel, Inc., 210 F.3d 1108, 1111 n. 2 (9th Cir.2000), that \"the inquiry[in reverse confusion cases] focuses on the strength of the junior mark because the issue is whether the junior mark is so strong as to overtake the senior mark.” We understand the district court’s confusion, as Walter could be read to imply that the strength of the plaintiff's senior mark is irrelevant in reverse confusion cases. See Walter, 210 F.3d at 1111 n. 2. However, Walter contained no express holding regarding the irrelevancy of the senior mark. Accordingly, we adhere to the approach in the case that introduced the reverse confusion concept in this circuit, Dreamwerks, 142 F.3d at 1130-31. In Dreamwerks, we explicitly analyzed the strength of the lesser known senior mark. See id. (describing the senior mark as an \"arbitraiy” mark worthy of strong protection); see also Cohn v. Petsmart, Inc., 281 F.3d 837, 842 n. 6 (9th Cir.2002) (recognizing the propriety of analyzing the strength of the lesser known senior mark). The language in Walter that the inquiry focuses on the junior mark does not mean that inquiry into the strength of the senior mark is completely foregone. . Although Swvivor did not seek summary judgment on this basis and the district court did not address it, we also note the lack of any evidence in the record that Surfvivor suffered any. damages as a result of the asserted infringement. See Lindy Pen Co., Inc. v. Bic Pen Corp., 982 F.2d 1400, 1407 (9th Cir.1993) (\"[a] plaintiff must prove both the fact and the amount of damage”) (citation omitted)." }, { "docid": "23244571", "title": "", "text": "reference to surfing. Examining the marks in their relative entirety does not reflect the existence of a material issue of fact regarding the similarity of the marks. The subfactors do not weigh in favor of either party. 4. Evidence of Actual Confusion Evidence of actual confusion by consumers is strong evidence of likelihood of confusion. See Rodeo Collection v. West Seventh, 812 F.2d 1215, 1219 (9th Cir.1987). In analyzing this factor, we may consider whether merchants and non-purchasing members of the public, as well as actual consumers, were confused. See Americana Trad. Inc. v. Russ Berrie & Co., 966 F.2d 1284, 1289 (9th Cir.1992); see also Karl Storz Endoscopy-America, Inc. v. Surgical Tech., Inc., 285 F.3d 848, 854 (9th Cir.2002). As noted above, there is scant evidence of actual confusion in the record. A single retailer and a single customer mistook one Survivor product as Deptula’s. A survey commissioned by Survivor showed an absence of significant confusion. Cf. Playboy Enterprises v. Netscape Communications, 354 F.3d 1020, 1026 (9th Cir.2004) (“actual confusion among significant numbers of consumers provides strong support for the likelihood of confusion”) (footnote reference omitted). This factor favors Survivor. 5. Marketing Channels We must determine whether the parties distribute their goods in the same marketing channels. See Entrepreneur Media, 279 F.3d at 1151. We agree with the district court that there is minor overlap within local Hawaiian distribution channels. For example, both Survivor and Surfvivor merchandise are sold at Hawaiian J.C. Penny stores. This factor slightly favors Deptula. 6. Degree of Consumer Care In analyzing the degree of care that a consumer might exercise in purchasing the parties’ goods, the question is whether a “reasonably prudent consumer” would take the time to distinguish between the two product lines. Brookfield Comm., Inc. v. West Coast Entertainment Corp., 174 F.3d 1036, 1060 (9th Cir.1999). Our analysis of this factor is complicated by the fact that the parties sell a wide range of goods at different prices. No clear standard exists for analyzing moderately priced goods, such as non-designer clothing. Compare Saks & Co. v. Hill, 843 F.Supp. 620, 624 (S.D.Cal.1993)" }, { "docid": "23244562", "title": "", "text": "any basis finding support in the record. Commonwealth of the Northern Mariana Islands v. United States, 399 F.3d 1057, 1060 (9th Cir.2005). Although disfavored in trademark infringement cases, summary judgment may be entered when no genuine issue of material fact exists. See Thane Int'l, Inc. v. Trek Bicycle Corp., 305 F.3d 894, 901-02 (9th Cir.2002). Discovery rulings are reviewed for an abuse of discretion. See Garneau v. City of Seattle, 147 F.3d 802, 812 (9th Cir.1998). This standard also applies to rulings regarding the relevance of evidence. See id. III. ANALYSIS Deptula asserts infringement claims under the Lanham Act, 15 U.S.C. § 1114, and related state law claims. A successful trademark infringement claim under the Lanham Act requires a showing that the claimant holds a protectable mark, and that the alleged infringer’s imitating mark is similar enough to “cause confusion, or to cause mistake, or to deceive.” KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., — U.S. -, -, 125 S.Ct. 542, 547, 160 L.Ed.2d 440 (2004) (citation omitted). The test for “likelihood of confusion” requires the factfinder to determine whether a “reasonably prudent consumer in the marketplace is likely to be confused as to the origin of the good or service bearing one of the marks.” Dreamwerks, 142 F.3d at 1129 (internal quotation marks omitted). We have recognized two distinct claims in the trademark infringement context: forward confusion and reverse confusion. See id. at 1130 n. 5. Forward confusion occurs when consumers believe that goods bearing the junior mark came from, or were sponsored by, the senior mark holder. See id. at 1129-30 & n. 5. To avoid summary judgment on a forward confusion claim, Deptula must raise a material question of fact regarding whether the buying public thought that Surfvivor was either the source of, or was sponsoring, the television show and its product line. By contrast, reverse confusion occurs when consumers dealing with the senior mark holder believe that they are doing business with the junior one. See id. To survive a summary judgment motion on a reverse confusion claim, a question of material fact would" } ]

[ { "docid": "12364235", "title": "", "text": "Ohio St. 469, 189 N.E.. 246. The evidence completely failed to support the allegation in- the complaint that the appellee maintained its track, system approximately four feet above the level of the public roadway, causing an abrupt rise in the roadway at the- point, or that the roadway at the point of crossing contained holes and was not in good repair. In any event, there was no evidence that such a condition, even if it existed, was a proximate cause of the accident: Baltimore & Ohio Rd. Co. v. Reeves, 6 Cir., 10 F.2329. The evidence was not sufficient' to take the case to the jury on the issue of excessive speed of the trail}. Under Ohio law, in the absence of a statiit.e regulating the\"rpte of speed of railroad trains, 'a' train is not limited as to speed when traveling in the open country; and safety is secured :to- persons at public crossings by the observance ' of the statutory:.signals. New York, Chicago & St. Louis Railroad Co. v. Kistler, 66 Ohio St. 326, 64 N.E. 130; Baltimore & Ohio Rd. Co. v. Reeves, supra. The crossing, a little to the. west of Roxanna, Ohio, an unincorporated -village, o.f only .four homes with no railroad depot, was' correctly classified by . the ; District .Judge as a crossing-in the open.country. .. There was ' sübstdntiál \"uncontradicted testimony that the statutory signals were given. Although an attempt was '.made .to-, show the contrary, . appellant’s evidence on this issue was merely to the effect that certain witnesses -did . not. hear the whistle or the hell. But such witnesses were not listening for the signals or were not in a position to hear, and would not say that the signals were not given. Such testimony was not sufficient to take the case to the jury. Patton, Adm’x, v. Pennsylvania R. Co., 136 Ohio St. 159, 162, 163, 24 N.E.2d 597. The evidence failed to show any negligence on the part of the appellee in obstructing the view of the driver of the car in making the crossing. Appellee was not" } ]

[ { "docid": "4346891", "title": "", "text": "recognized that “negligence and contributory negligence” are issues under sections 4955.32 and 4955.34. Thus, no significant support exists for Appellees’ contention that Ohio law precludes a defense of contributory negligence in cases concerning the whistle-bell statute. We point out, however, that the defense of contributory negligence itself may be overcome if the plaintiff is able to show “a reasonable excuse” for failing to discover an approaching train. Rathgeb syllabus, 32 Ohio St. at 66. One is not charged with a duty to hear a whistle that has not been sounded or see a train which cannot be seen. Given evidence that ho warning sounds were given and that there were obstructions along the highway to obscure the train from the driver’s view, the jury could believe that the Glinseys exercised ordinary prudence in approaching the crossing and that the train’s failure to sound its whistle or bell was the proximate cause of the accident. Sturgell v. Detroit, T. &. I. R. R., 107 Ohio App. 5, 156 N.E.2d 477 (Pike Co. 1958); Cleveland, C. & C. R. R. v. Crawford, 24 Ohio St. 631 (1874). “[A] person to whom a duty of care is owing may assume that it will be performed, so that failure to anticipate negligence does not operate to defeat an action for injuries sustained.” 16 Ohio Jur.2d Railroads § 351 (1961). See Meek v. Pennsylvania Co., 38 Ohio St. 632 (1883); Hart v. Devereux, 41 Ohio St. 565 (1885). In short, “if a traveler, acting as a reasonably prudent person, is misled by the absence of signals or warnings required of a railroad company into believing that he might cross the tracks in safety and is struck by a train while attempting to do so, he is not precluded from recovering damages.”' 46 Ohio Jur.2d Railroads § 353, p. 387 (1961). See Schweinfurth v. Cleveland, C., C. & St. L. Ry., 60 Ohio St. 215, 54 N.E. 89 (1899); Cleveland, C., C. & St. L. Ry. v. Kuhl, 123 Ohio St. 552, 176 N.E. 222 (1931). Thus, the District Court’s denial of a directed verdict for" }, { "docid": "6127480", "title": "", "text": "few seconds before the impact when the tower said, “Eastern 537, make an immediate left turn. Traffic is P-38 above and behind you.” Instantly responding ■ to this direction, the engines of the DC-4 roared and the plane began a left turn but was struck before it could escape. Thus the quéstion is whether Shaw’s negative testimony that he heard no landing clearance given Eastern had enough probative value, as against Tig-ner’s affirmative statement that he gave the clearance, to form an issue of fact for the jury. It is generally held in railroad crossing cases that negative testimony of a witness that he did not hear a warning signal from a locomotive is sufficient to form an issue of fact, in the face of affirmative evidence that the warning was sounded, provided the witness was in a position to hear, and provided his attention was not distracted. A different situation is presented, however, when the witness is shown not to have been in a - position to hear or appears to have been inattentive. The testimony of such a witness that he did not hear the warning signal has little or no probative force. Small v. Pennsylvania R. Co., 1935, 65 App.D.C. 112, 80 F.2d 704; Strider v. Pennsylvania R. Co., 6 Cir., 1932, 60 F.2d 237; Venchik v. Pennsylvania R. Co., 1941, 143 Pa.Super. 465, 18 A.2d 118; Lanier v. Missouri P. R. Co., 1929, 9 La.App. 586, 119 So. 710; Zotter v. Lehigh Valley R. Co., 1924, 280 Pa. 14, 124 A. 284; Jensen v. Oregon Short Line R. Co., 1922, 59 Utah 367, 204 P. 101; Rickert v. Union P. R. Co., 1916, 100 Neb. 304, 160 N.W. 86; Young v. Erie R. Co., 1913, 158 App.Div. 14, 143 N.Y.S. 176; Jordan v. Osborne, 1911, 147 Wis. 623, 133 N.W. 32; Hubbard v. Boston & A. R. Co., 1893, 159 Mass. 320, 34 N.E. 459. Under the rule just stated Shaw’s negative testimony was insufficient to form an issue if he either (a) was not in a position during all the crucial nine-minute period to hear" }, { "docid": "5667180", "title": "", "text": "Volume 4, § d249. And the author also says: “And it is a well-established principle that the fact that the jury may misuse for purpose X evidence which is perfectly competent for purpose Y furnishes no ground for rejecting evidence absolutely essentia] to Hie case of the proponent in connection with purpose X. Evidence of another transaction may be necessary in order to enable a party to prove Ms case, to detail the ros geste, the constituent facts upon which he is relying.” Here the foundation of the action was negligence on the part of the defendant railroad company in that it did not give suitable or any signals of the approach of this train to the crossing in question. To show that such signals by bell or whistle were not given, it was ■necessary to call those bystanders and spectators who were present on the occasion of the collision and especially important, in view of the decisions that the statement of those who were not paying attention is of little weight against the testimony of those who were, to show that Granger’s attention was on the question of signals from the engine. The plaintiff was not confined to Granger’s mere' “say-so,” but, in view of the cross-examination tending to show Granger’s attention may have been on his own automobile, was entitled lo show diet his attention was in £act\"cal!ed to that particular question (signals) by voluntary, spontaneous, and relevant exclamations made at the time by one who was also watching the transaction and in a position 1o hear, see, and know. It was not an opinion or the recitation of a part transaction. The exclamation of Mrs. Granger was a part of the transaction, and drawn out by it. This question has been decided in a very similar case (Terwilliger, as Adm’x, v. Long Island Railroad Co., 152 App. Div. 168, 172, 136 N. Y. Supp. 733, 736), where the court said: “It is also urged that the court erred in permitting Mrs. Wilson to testify that she saw the accident and that she exclaimed, just at the moment" }, { "docid": "5790207", "title": "", "text": "listening for any whistle or bell? A. I mean I wasn’t talking. I think if there was a whistle I would have probably heard it. We weren’t talking and laughing that loud. I could have heard it. “Q. But you weren’t listening for one? A. No, I wasn’t. “Q. You weren’t looking for one? A. No, I wasn’t. “Q. And you didn’t realize you were approaching a railroad crossing? A. No, sir. “Q. That whistle could have sounded but due to the radio and you talking and not paying any attention and you not heard it, isn’t that correct? A. Well, no, I think if it would have blown I would have heard it, because the radio wasn’t playing that loud and we weren’t talking and laughing that loud. “Q. Edna, on the 20th of May, 1948, do you recall talking to one of the claim agents of the railroad company when there was a court reporter * * * taking it down? A. Yes. . “Q. And to refresh your recollection, Edna, didn’t he say this: ‘You state you did not hear an engine whistle being sounded,’ and didn’t you answer: ‘No, I didn’t’ ? A. That’s right. “Q. You remember that, don’t you? A. Yes. “Q. And didn’t he ask you: ‘Could it have been sounded but you just didn’t hear it due to the radio playing?’ and didn’t you answer: ‘Yes.’? A. I don’t know. I can’t remember. “Q. You can’t remember whether that was true or not? A. I don’t know.” The foregoing constituted only negative testimony. The district court held that the only testimony in support of appellant’s contention of negligence because of failure to blow the whistle and ring the bell was entirely negative in character, as contrasted to appellee’s overwhelming evidence to the effect that the whistle was blown and the bell rung. No witness in support of appellant’s claim testified that he was listening for any warning signals at any time prior to the accident. Where .a witness testifies that warning signals were not given or that he did not hear such" }, { "docid": "21532144", "title": "", "text": "the flagman did not precede the engine, but merely that they did not hear any signals; they did not see the flagman. Only two witnesses testified for plaintiff on the matter of the signals and the flagman. One of these, her husband, said: “I did not hear any whistle of the locomotive or see any flagman out in the highway flagging me and other people down. When I first saw the flagman he was riding on the tender out in the street.” The other, a Mr. Lee, testified that he had been traveling north in the same direction, but behind plaintiff’s car at a speed of about 30 miles an hour, and that when the accident occurred he was still 35 or 40 yards south of the railroad track. His testimony, further, was that when he first saw the engine, it was practically halfway across Twenty-Sixth street; that he did not remember hearing, the bell ring; and that he did not see the flagman. He did not say, however, that the bell was not ringing, or that the flagman did not precede the engine across the street. As for the plaintiff herself, she testified merely that she could not remember whether any whistle blew, or any bell was ringing, immediately before the crash. The case standing thus on the evidence, appellant insists that upon the direct, positive, and uncontradicted testimony of the witnesses for defendant that the bell was ringing and the whistle blowing, and that the flagman did precedo the engine at least halfway across the street, stopping traffic and warning of its approach, until, occupying nearly one-half of a 55-foot street, the engine gave its own unmistakable warning, there is no issue of fact for a jury and an. instructed verdict for defendant was demanded. Arnall Mills v. Smallwood (C.C.A.) 68 F.2d 57. It insists, in short, that the testimony admits of only one reasonable conclusion; that it was not the failure of the engineer to give signals, nor of the flagman to precede the engine all the way over the crossing which was, or could have been," }, { "docid": "5790209", "title": "", "text": "Warning signals, and it appears that the witness was not listening to hear such signals or not paying attention as to whether they were given or not, such testimony is negative, and in the face of substantial uncontradicted testimony that the signals were given, the evidence is not sufficient to present to the jury the question as to whether such signals were given. Carter v. Pennsylvania Railroad Co., 6 Cir., 172 F.2d 521; Strider v. Pennsylvania Railroad Co., 6 Cir., 60 F.2d 237; The Continental Baking Co. v. Pennsylvania Railroad Co., 87 Ohio App. 505, 96 N.E.2d 258; Toledo & Indiana Railroad Co. v. Yhalkee, 51 Ohio App. 378, 1 N.E.2d 163. There was substantial uncontradicted testimony that the signals were given, as required by law. Under the authorities above cited, the evidence of claimed negligence on the part of appellee in failing to give the warning signals was not sufficient to take the case to the jury. In accordance with the foregoing, the judgment of the district court is affirmed. . Ohio General Code, Section 8853:" }, { "docid": "17657754", "title": "", "text": "mitigation of damages is not the persuasive data that a federal court requires before it will depart from the law as set forth by an intermediate state court. We find no error in the trial court’s jury charge. Defendant’s next three points of error focus on evidentiary rulings made by the district judge. Its first quarrel is with the rulings that allowed the plaintiffs to present testimony about other accidents and signal malfunctions at this particular crossing. The railroad contends that this evidence was irrelevant. The plaintiffs introduced evidence of “other happenings” to establish that: (1) the crossing was extra-hazardous and (2) the railroad had notice that the warning signal had failed on other occasions. Given these two legal theories of liability, the testimony about other signal malfunctions was clearly relevant. Such evidence per mitted the jury to draw a reasonable inference that the crossing was dangerous and that the railroad had notice of mechanical difficulties with the signal. The fact that the malfunctions occurred at a different time of the day or that the witness to the light failures was traveling in a different direction goes strictly to the weight to be given the evidence. Jones & Laughlin Steel Corp. v. Matherne, 348 F.2d 394 (5th Cir. 1965). The testimony about prior car-train collisions at the crossing was also relevant. Both witnesses who testified about prior accidents stated that the signal lights did not flash and the warning bells did not ring before their collision. That is exactly what plaintiffs allege happened on the day in question. Once again, such evidence permitted the jury to draw a reasonable inference that the crossing was extrahazardous and that the railroad had notice. The fact that the accidents occurred at different times in the day and involved cars traveling in the opposite direction goes to the weight to be given the evidence. Id., Stoler v. Penn Central Transportation Co., 583 F.2d 896 (6th Cir. 1978) Defendant contends the trial judge erred when he admitted testimony about the deceased’s character for care in driving a car. The railroad cites five instances in the" }, { "docid": "4483002", "title": "", "text": "midway of the train, too far to communicate with him. • The engineer and fireman of the approaching east-hound train testified that the required statutory signal was given. Their testimony is corroborated not only by that of the conductor, engineer, and brakeman of the west-bound train, bht by the testimony of the conductor that his effort to warn Byrd was prompted by hearing the whistle of the approaching train. Yet there was testimony given by bystanders that they did not hear the signal, and were not aware of the train’s approach. This conflicting evidence makes a question for the jury on the issue whether the statutory signal was given. Therefore, in considering whether a verdict should have been directed, the assumption must be that it was not given. The question, therefore, is whether the evidence showed that the defendant was guilty of gross contributory negligence in attempting to cross the track without taking any precaution. We have recently stated, after full consideration, the general rule that there can be no recovery on behalf of a traveler on the highway killed or injured at a crossing by a passing train when, without excuse, he takes no precaution for his safety. Southern Railway Co. v. Priester (C. C. A.) 289 F. 945. The South Carolina cases were there cited, showing that the same rule was applied in that state under the South Carolina statute. The enforcement of this rule becomes more important because collisions with heavy motor ears endanger the lives of passengers and crew of the railroad trains as well as the occupants of automobiles. Drivers of automobiles therefore owe the duty of care and precaution before crossing railroad tracks, not only to themselves but to all persons on trains and to the railroad companies as owners of the trains. The circumstances which may excuse the traveler from taking precautions to look and listen for his own safety are thus well stated by Mr. Justice Marion in Chisholm v. Seaboard Air Line Railway, 121 S. C. 394, 114 S. E. 503: “The facts and conditions which may qualify the duty and" }, { "docid": "2642963", "title": "", "text": "were questioned on this point and their opinions as to the train’s speed varied from 15 to 25 miles per hour. The fact that the station at which the train was to stop was only a distance of four blocks beyond Capitol Avenue, furnishes rather strong support to defendant’s witnesses in this respect. Assuming that the speed was 25 miles per hour, we do not think it would substantiate the charge. Subsections C. and H. are similar. The negligence complained of in the former is that no bell was rung, no whistle blown, nor warning sounded; and the latter charges a failure to ring the crossing signal bell. Neither do we think the evidence supports these charges. Plaintiff, in this respect, relies wholly upon the testimony of two witnesses, Ausberger and White. The. former was approaching the crossing in an automobile from the south, accompanied by a Mrs. Reynolds (defendant witness) and was about one-half block from the crossing at the time of the collision. He testified: “I didn’t hear any bell sounded. It was a pretty cold, frosty night. The windows in my car were closed. I didn’t hear any whistle that night. I was not anticipating a train.” The witness White was defendant’s flagman in the fourth car of the train from the engine as it approached the crossing. He testified: “I couldn’t hear any signals.” Four witnesses testified for the defendant that the automatic engine bell was ringing, arid two witnesses that the crossing bells were on. Such testimony does not present a conflict, — it may all be true. Pere Marquette R. Co. v. Anderson, 7 Cir., 29 F.2d 479. Testimony of a witness that he did not hear, without any proof that he was listening and in a position to hear, can carry no weight, especially in the face of positive and direct evidence to the contrary. Subsection G. charges a failure to lower the crossing gates. Here again plaintiff relies heavily upon the testimony of Ausberger. As stated already, he was approaching the crossing from the south. He said: “I didn’t see no gates" }, { "docid": "12327059", "title": "", "text": "denied, and there was a verdict and judgment for plaintiffs. This appeal tests whether there was error in refusing to instruct. Appellant recognizes and accepts its burden to show that plaintiffs’ case failed, as matter of law, either for want of proof that defendant was negligent, or because the evidence conclusively established plaintiffs’ contributory negligence. It insists that plaintiffs’ evidence, except as to the presence of a flagman at the crossing, was negative, and that their denial of the flagman’s presence was conclusively contradicted by the physical facts. In support of its claim that evidence of negligence on its part is wholly wanting, it points out that plaintiffs did not testify that no signals were given. They testified merely that they did not see or hear any warning signs and signals, while its own evidence is direct, positive, and uncontradicted that the crossing was protected by a Louisiana law stop sign, and by a flagman at the crossing giving warning signals; that the engine’s tender was brightly lighted, that the whistle was blown before and the bell was rung continuously after the engine started over the crossing, and that the sole proximate cause of the collision was plaintiffs’ negligence in failing to stop at the sign and in coming on over the crossing in the dark, with all windows shut and obscured by fog and rain. Pollard v. Davis, Receiver, 5 Cir., 93 F.2d 193. In support of its claim that plaintiffs were contributorily negligent, it points to plaintiffs’ admissions that because it was raining and cold, all the windows in the car were up, that it was dark and foggy, and the windshield wiper was running to keep the mist and rain off the front window so that plaintiff driver could see in front, that he did not see and did not stop at defendant’s Louisiana law stop sign, nor did he look to the side of the car until at the moment of the collision, but he looked and drove straight ahead, and did not see the engine until he was practically in collision with it. Plaintiff Giles" }, { "docid": "1369454", "title": "", "text": "the track, and where both the noise of an approaching train and the shriek of a whistle must be much obstructed and muffled, it becomes highly important that the warning of an approaching train shall be given by whistle, and at such a point or points as will most effectually serve to give timely notice to one traveling on the public highway. The customary place for giving such signals by trains approaching this crossing from the east was at the whistling post 1,700 feet east of the crossing, and the effort of the railroad company was to show that the usual signals were on this occasion given at that post. If given there, the train would reach the crossing, at the speed it was traveling, in about 22 seconds. Upon this question the testimony of the witness Ellis was highly pertinent, even if he mistook a crossing signal for an alarm, and mistook the order in which the two distinct signals were given. If no signal was given until the train had passed out of his sight in the cut between the post and crossing, it was a question for the jury to say whether, looking to the speed of this train and the blind character of this ■crossing, it was due diligence to neglect giving a crossing signal at the whistling post, and before entering the cut between the post and crossing, and whether, if given at the crossing, it would more likely have been heard than if given near the crossing and in a cut. We come now to the question of contributory negligence. The court properly instructed the jury that this was a defense, the burden of supporting same being on the defendant. The exception taken to this part of the charge, must be overruled. In courts of the United States this has long been the established doctrine. Railroad Co. v. Gladmon, 15 Wall. 401; Hough v. Railway Co., 100 U. S. 213; Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. 653; Railroad Co. v. Volk, 151 U. S. 73, 14 Sup. Ct. 239;" }, { "docid": "21217472", "title": "", "text": "the crash. The District Judge sustained an objection to this testimony for the reason that the plaintiffs had not relied on this ground in their complaints. He also denied plaintiffs’ motion to amend the complaint so as to include as a ground for liability the failure of the defendant to give such signals. In the absence of any other evidence showing negligence on the part of the defendant, the District Judge directed verdicts for the defendant. On appeal, this Court was of the opinion that the District Judge should have permitted the plaintiffs to amend their complaints. This Court was also of the opinion that the proffered testimony would have made a ease for the jury. The opinion states: “In this case, appellants’ witness testified that he heard the collision, and the proffered testimony was he would testify that no bell, whistle, or horn was sounded immediately prior to the accident. We are of the view that the fact that the witness heard the crash, and that his proffered testimony was that he did not hear a bell, whistle, or horn, just before the crash, presented a jury question as to whether such signals were given by the appellee, and does not partake of the character of negative evidence that was held insufficient to present such question in Clark v. Baltimore & O. R. Co. [196 F.2d 206, C.A.6th, cert. denied, 344 U.S. 830, 73 S.Ct. 36, 97 L.Ed. 646], supra. * * * ” The judgments entered on the directed verdicts in favor of the defendant were reversed and the cases were remanded for a new trial. Green v. Baltimore & Ohio Railroad Company, 299 F.2d 837, C.A.6th. At the second trial, which is now being reviewed on this appeal, George Wright was again offered as a witness and, in view of the ruling on the first appeal, was allowed to testify. However, the District Judge again directed verdicts in favor of the defendant. From the judgments entered on such directed verdicts the present appeals are taken. In the first trial of this case it was strongly contended by" }, { "docid": "5667138", "title": "", "text": "Signal by Bell or Whistle. As just stated, the engineer testified to ringing the bell and blowing the regular crossing signals or whistle for both crossings. Kilmer testified, not quoted above, that he listened but did not hear any bell or whistle. Mr. Emens, who was in the automobile by the side of Kilmer, testified that they very much slowed down before going up the slope, and that he looked and listened, and that he continued so to do, and heard no bell or whistle until the danger signal was given just before the automobile was struck, and saw no engine or train until that time. He says that no- signals were given. The plaintiff called several other disinterested witnesses, some of whom had their attention on the train and its signals, and some of whom did not have their attention on its signals especially, and these testified either that no- bell was sounded and that no whistle was blown until the danger signal, or that, being in a position where they .could and probably would have heard, heard none. The defendant called the engineer, fireman, conductor, and quite a number of men who were on the special .excursion cars attached to the train, and these testified that they observed and heard the crossing signals given. The evidence was of such a character that a question of fact for the jury was presented whether or not the crossing signals were given, and whether or not the bell was rung, or whether or not any signal of the approach of the train was given prior to the danger signal. A Mr. Granger with his wife had stopped in the highway (crossroad) but a few feet east of the railroad tracks, and saw the automobile approaching the Swarthout Crossing, and both saw and heard the train coming from the south and saw it as it passed and also the collision. Mrs. Granger was asked: “Q. Did you, as the automobile and train eacli approached the Swarthout Crossing, have in mind the question as to whether or not the train was giving signals?" }, { "docid": "13713602", "title": "", "text": "approaching the crossing from the south; that the windows to their car were closed; that they were 200 or 300 feet from the crossing at the time of the accident; that they saw both the automobile and the train approaching the crossing; that they saw the accident; and that they did not hear any whistle or bell. And the driver of the truck which was hauling the tank testified that the windows of the cab were closed and that he did not hear any whistle or bell prior to the accident. Members of the train crew, __ two members of the crew engaged in hauling the tank, and two others testified that they heard the whistle, and there was testimony from some of them that the automatic bell was being sounded. Testhnony of witnesses merely that they did not hear a whistle or bell is of insufficient probative value to take the issue to the jury when in conflict with positive testimony of other witnesses that the whistle was sounded or the bell rung, unless it further appears from the circumstances, conditions, and surroundings that they were in position to hear and would probably have heard the sound had it been given. Union Pacific Railroad Co. v. Gaede, 10 Cir., 110 F.2d 931; Stephenson v. Grand Trunk Western Railroad Co., 7 Cir., 110 F.2d 401, 132 A.L.R. 4'55; Kilmer v. Norfolk & Western Railway Co., 4 Cir., 45 F.2d 532, certiorari denied 283 U.S. 824, 51 S.Ct. 347, 75 L.Ed. 1438; Bergman v. Northern Pacific Railway Co., 8 Cir., 14 F.2d 580. But the value of negative testimony depends upon the surrounding circumstances and conditions. And where it appears that the witnesses giving the testimony were alert and vigilant in watching and listening for approaching trains and were so situated and circumstanced that in all probability they would have heard the sound had it been given, the testimony is sufficient to take the case to the jury on the issue, even though there be positive testimony by other witnesses that they heard the whistle and the bell. Union Pacific Railroad" }, { "docid": "21217473", "title": "", "text": "hear a bell, whistle, or horn, just before the crash, presented a jury question as to whether such signals were given by the appellee, and does not partake of the character of negative evidence that was held insufficient to present such question in Clark v. Baltimore & O. R. Co. [196 F.2d 206, C.A.6th, cert. denied, 344 U.S. 830, 73 S.Ct. 36, 97 L.Ed. 646], supra. * * * ” The judgments entered on the directed verdicts in favor of the defendant were reversed and the cases were remanded for a new trial. Green v. Baltimore & Ohio Railroad Company, 299 F.2d 837, C.A.6th. At the second trial, which is now being reviewed on this appeal, George Wright was again offered as a witness and, in view of the ruling on the first appeal, was allowed to testify. However, the District Judge again directed verdicts in favor of the defendant. From the judgments entered on such directed verdicts the present appeals are taken. In the first trial of this case it was strongly contended by the appellee that so-called negative testimony of the kind offered by the witness Wright was not sufficient to take the case to the jury on the issue of negligence, when such testimony was met by positive evidence to the contrary, such as uncontradicted testimony by those operating the engine, as in the present case, that the bell was ringing and the whistle was blowing. Clark v. Baltimore & O. R. Co., supra, 196 F.2d 206, C.A.6th, cert. denied, 344 U.S. 830, 73 S.Ct. 36, 97 L.Ed. 646. In passing on the appeal from the judgment in that trial we rejected that contention. See also: Hood v. New York, Chicago & St. Louis Rd. Co., 166 Ohio St. 529, 144 N.E.2d 104; Ernst v. Baltimore & Ohio Railroad Co., 316 F.2d 856, 857, C.A.6th, which were not cited in the opinion in that ease. Such ruling constitutes the “law of the case,” which is to be applied in the second trial. General American Life Ins. Co. v. Anderson, 156 F.2d 615, 618-619, C.A.6th; Henderson v. United" }, { "docid": "12327058", "title": "", "text": "HUTCHESON, Circuit Judge. Injured in a highway crossing collision between Giles’ automobile and appellant’s switch engine, occurring at about 5 :55 on a dark, foggy, rainy morning, in February, appellees sued for the damages resulting. Their claim was that while they were proceeding at moderate speed along a much traveled public highway, defendant’s switch engine, without any warning being given of its approach, by bell, whistle, or other signal, was backed at an excessive speed on to the highway and into collision with their automobile. There was a general denial, a plea that plaintiffs’ negligence in driving onto the crossing recklessly and in total disregard of the Louisiana law stop sign, of the warning of the flagman, and of the brightly lighted tender, the whistle, bell, and other signals from the engine, was the sole proximate cause of the collision, and a plea that plaintiffs were contributorily negligent. The evidence concluded, defendant insisting both that there was no proof of defendant’s negligence, and that plaintiffs were contributorily negligent, moved for a verdict. The motion was denied, and there was a verdict and judgment for plaintiffs. This appeal tests whether there was error in refusing to instruct. Appellant recognizes and accepts its burden to show that plaintiffs’ case failed, as matter of law, either for want of proof that defendant was negligent, or because the evidence conclusively established plaintiffs’ contributory negligence. It insists that plaintiffs’ evidence, except as to the presence of a flagman at the crossing, was negative, and that their denial of the flagman’s presence was conclusively contradicted by the physical facts. In support of its claim that evidence of negligence on its part is wholly wanting, it points out that plaintiffs did not testify that no signals were given. They testified merely that they did not see or hear any warning signs and signals, while its own evidence is direct, positive, and uncontradicted that the crossing was protected by a Louisiana law stop sign, and by a flagman at the crossing giving warning signals; that the engine’s tender was brightly lighted, that the whistle was blown before and" }, { "docid": "2212189", "title": "", "text": "two short blasts of the whistle on the engine; third, that the defendant’s engineer failed to ring the engine’s bell, from the time the engine passed the whistling post until it passed over the crossing, as required by the laws of New Hampshire; fourth, that the engineer failed in his duty to prevent the accident after he discovered Richardson in a place of danger. Upon all these questions there was a sharp conflict of testimony. There was affirmative evidence on the part of the defendant that the grade-crossing signals were in proper condition and were working at the time of the accident. There was much testimony offered by the plaintiff that the grade-crossing signal was out of repair and was not working at the time of the accident; that the attention of several witnesses was called especially to the subject; that it was raining very hard and was quite dark; that the crossing lights were not burning and the crossing bells were not ringing; that the crossing signal had failed before; that the railroad had been warned a number of times; and that it had had'flagmen at the crossing on some occasions when the signal was not working. Several witnesses testified affirmatively that the automatic bell did not ring or the lights flash when the train was on the crossing, or .when it came back over the crossing after it had backed up to the station. Upon all the questions of negligence there was a sharp conflict of testimony. The defendant urged that, even though the whistle was not sounded and the bell was not rung, the railroad would not be liable for the injury, because its negligence was not the proximate cause of the injury, but that the proximate cause of the injury was the act of the automobile driver in running his automobile and the contributory negligence of Richardson in approaching the crossing. We have examined the instructions which the presiding judge gave upon this point; that if the jury should find that the failure of these warning signals-led the automobile driver and Richardson to approach the crossing" }, { "docid": "21532143", "title": "", "text": "this ordinance was negligence per se. Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471; Cooper v. Agee, 222 Ala. 334, 132 So. 173-175; Hover & Co. v. Denver Ry. Co. (C.C.A.) 17 F.2d 881; Steel Car Forge Co. v. Chec (C.C.A.) 184 F. 868; Texarkana Ry. Co. v. Parsons (C.C.A.) 74 F. 408. Appellant, in reply, points to the fact that six witnesses, the engineer and fireman, and four others not employees of defendant, gave positive testimony to the giving of crossing signals and to the fact that the flagman preceded the locomotive across the street at least to the middle of it, and until it had gotten so far out into the street that its great bulk and the noises it made in its movement gave far more significant evidence of its presence than the flagman himself could have given. He points out, too, that not a single witness for plaintiff gave testimony in contradiction. What testimony her witnesses gave was negative. It was not that no signals were given, and the flagman did not precede the engine, but merely that they did not hear any signals; they did not see the flagman. Only two witnesses testified for plaintiff on the matter of the signals and the flagman. One of these, her husband, said: “I did not hear any whistle of the locomotive or see any flagman out in the highway flagging me and other people down. When I first saw the flagman he was riding on the tender out in the street.” The other, a Mr. Lee, testified that he had been traveling north in the same direction, but behind plaintiff’s car at a speed of about 30 miles an hour, and that when the accident occurred he was still 35 or 40 yards south of the railroad track. His testimony, further, was that when he first saw the engine, it was practically halfway across Twenty-Sixth street; that he did not remember hearing, the bell ring; and that he did not see the flagman. He did not say, however, that the bell was not ringing," }, { "docid": "11880015", "title": "", "text": "the duty of the crew to give the signal. See St. Louis Southwestern Ry. v. Taylor, supra; Missouri Pacific R. R. v. Ellison, supra; Scoville v. Missouri Pacific R. R., 458 F.2d 639 (8th Cir. 1972). Three witnesses testified concerning the sounding of the whistle or bell. The engineer, Ridenour, testified that he blew the whistle from the time the train passed the whistle board, which is one quarter mile north of the crossing, and that he also rang the bell. This testimony was inconsistent with what Ridenour indicated in his statement of April 19 to the defendant’s claim agent, as then he said that he had sounded the whistle from about fifteen car lengths north of the crossing. This distance is approximately 750 feet and is substantially less than one quarter mile. The second witness who testified concerning the signals was Don Pittman, who said that he was in front of his business at Sixth and Spradling, about 1200 or 1500 feet from defendant’s track, when he heard the collision. Pittman testified that prior to the impact he did not hear a whistle or bell, even though he had heard whistles from his location on previous occasions. He stated that there were no other noises which would have prevented his hearing these signals on the night of the incident had they been given. The third witness, William Steward, testified that as he was proceeding east on Spradling Avenue behind the decedent’s truck he heard the train’s whistle when he was even with the gate of the Sherman Concrete plant. He did not remember hearing a bell. According to defendant’s expert evidence this gate is 370 feet west of defendant’s track. Steward testified that he did not hear the whistle before he reached that point, that his car window was down, and that there was nothing which would have prevented his hearing the whistle at an earlier point had it been blown. We believe that the foregoing evidence presented a question for the jury whether the train crew sounded the train’s whistle or bell as required by law. We find" }, { "docid": "5790208", "title": "", "text": "say this: ‘You state you did not hear an engine whistle being sounded,’ and didn’t you answer: ‘No, I didn’t’ ? A. That’s right. “Q. You remember that, don’t you? A. Yes. “Q. And didn’t he ask you: ‘Could it have been sounded but you just didn’t hear it due to the radio playing?’ and didn’t you answer: ‘Yes.’? A. I don’t know. I can’t remember. “Q. You can’t remember whether that was true or not? A. I don’t know.” The foregoing constituted only negative testimony. The district court held that the only testimony in support of appellant’s contention of negligence because of failure to blow the whistle and ring the bell was entirely negative in character, as contrasted to appellee’s overwhelming evidence to the effect that the whistle was blown and the bell rung. No witness in support of appellant’s claim testified that he was listening for any warning signals at any time prior to the accident. Where .a witness testifies that warning signals were not given or that he did not hear such Warning signals, and it appears that the witness was not listening to hear such signals or not paying attention as to whether they were given or not, such testimony is negative, and in the face of substantial uncontradicted testimony that the signals were given, the evidence is not sufficient to present to the jury the question as to whether such signals were given. Carter v. Pennsylvania Railroad Co., 6 Cir., 172 F.2d 521; Strider v. Pennsylvania Railroad Co., 6 Cir., 60 F.2d 237; The Continental Baking Co. v. Pennsylvania Railroad Co., 87 Ohio App. 505, 96 N.E.2d 258; Toledo & Indiana Railroad Co. v. Yhalkee, 51 Ohio App. 378, 1 N.E.2d 163. There was substantial uncontradicted testimony that the signals were given, as required by law. Under the authorities above cited, the evidence of claimed negligence on the part of appellee in failing to give the warning signals was not sufficient to take the case to the jury. In accordance with the foregoing, the judgment of the district court is affirmed. . Ohio General Code," } ]

[ { "docid": "23500619", "title": "", "text": "to silence (with its presumption against vesting). See id. at 306 (finding that separate agreement containing entitlement to lifetime benefits modified reservation of rights clause incorporated from another agreement and entitled retirees to welfare benefits for their lifetime); Bidlack, 993 F.2d at 608 (“But the agreements are not silent on the issue; they are merely vague. They say that once retired employees reach the age of 65 the company will pick up the full tab for their health insurance and that when they die their spouses will continue to receive supplemental health benefits, again at the company’s cost. This could be thought a promise to retired employees that they and their spouses will be covered for the rest of their lives.”). However, none of those decisions involve situations where a reservation of rights clause is an integral part of the contract that provides the “lifetime” benefits. In Diehl, we found that the contract providing “lifetime” benefits “was an independent contract, supported by separate consideration and capable of modifying or supplanting prior contractual arrangements,” such as the one that contained the reservation of rights clause. Diehl, 102 F.3d at 306-07. Here, the nature of the HCA as a “lifetime” benefit is not one of the enhancements created by the VSRP because the HCA is also a “lifetime” benefit for regular retirees according to the general retirement plan documents. Thus, unlike Diehl, the “lifetime” nature of the HCA benefit could not abrogate the reservation of rights clause included in the 1992 Retirement Guide and other general retirement plan documents because both were offered by the same contract. Moreover, the reservation of rights clause in Diehl provided an “unsure foundation of the putative right to discontinue” benefits. Id. at 308. The use of “lifetime” with respect to the VSRP’s HCA benefit simply does not operate to vest that benefit for the early retirees. In Bidlack, the only reservation of rights clause applicable to the plan at issue was in a contract between the employer and an insurance company for the purchase by the former of health insurance sold by the latter. Bidlack, 993" } ]

[ { "docid": "23057472", "title": "", "text": "which active workers at other plants have assented. Is there any reason to read into the agreements a ratchet that their language does not express? Labor law has modified contractual freedom in light of the statutory duty to bargain. An employer may not walk away from workers the same way a supplier of oil may walk away from customers. Instead the employer must bargain collectively with its employees. Once an existing agreement has ended and the bargaining obligation has been fulfilled, however, the employer may put its proposals into force, modifying or abandoning the terms that formerly applied. NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962); Lapham-Hickey Steel Corp. v. NLRB, 904 F.2d 1180, 1185 (7th Cir.1990). Parties may agree on immutable benefits, which continue by force of contract. But the presumption is and always has been that benefits mentioned in a collective bargaining agreement do not vest. “As with the obligation to make pension contributions in [Laborers Health and Welfare Trust Fund v.] Advanced Lightweight Concrete Co.[, 484 U.S. 539, 108 S.Ct. 830, 98 L.Ed.2d 936 (1988) ], other contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement. Exceptions are determined by contract interpretation. Rights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement. And of course, if a collective bargaining agreement provides in explicit terms that certain benefits continue after the agreement’s expiration, disputes as to such continuing benefits may be found to arise under the agreement”. Litton Financial Printing Division v. NLRB, - U.S. -, -, 111 S.Ct. 2215, 2226, 115 L.Ed.2d 177 (1991) (emphasis added). In Litton the Court looked for the “explicit terms” requiring the employer to honor seniority after the terminal date of the contract and, finding none, rebuffed the union’s claim. It did not search outside the terms of the agreement. Provisions in a collective bargaining agreement establishing benefits for retirees turn out to be a weak sort of promise. For retirees’ health benefits are not a mandatory subject of collective bargaining. As a result," }, { "docid": "22828490", "title": "", "text": "insurance benefits constituted an improper amendment of their welfare benefits plan. Schoonejongen, — U.S. at -, 115 S.Ct. at 1227. In its opinion, the Court decided what kind of amendment procedure ERISA requires the plans to include. The vesting of rights through agreements such as CBAs was not at issue. See id. at-, 115 S.Ct. at 1226 (“This case presents the question whether the standard provision in many employer-provided benefit plans stating that ‘The Company reserves the right at any time to amend the plan’ sets forth an amendment procedure that satisfies [ERISA] § 402(b)(3).”). The Court simply noted that ERISA does not mandate minimum vesting requirements for welfare benefit plans, and that ERISA allows employers to adopt, modify, or terminate such plans at will. Id. at -, 115 S.Ct. at 1228. The case bears no relation to the issues in YardMan. In Litton, the Court determined whether an employer and the union representing its employees must submit their disputes to arbitration under an arbitration clause in an expired CBA. Litton Fin. Printing Div., 501 U.S. at 193, 111 S.Ct. at 2218. Addressing the question whether the duties and obligations imposed by a contract survive the contract, the Court wrote: As with the obligation to make pension contributions ..., other contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement. Exceptions are determined by contract interpretation. Rights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement. And of course, if a collective-bargaining agreement provides in explicit terms that certain benefits continue after the agreement’s expiration, disputes as to such continuing benefits may be found to arise under the agreement, and so become subject to the contract’s arbitration provisions. Id. at 207-08, 111 S.Ct. at 2226 (all emphases added). In its brief, the defendant focuses on the portion of the above quotation which we have underscored and argues that Litton requires the plaintiffs to prove an “express agreement” that benefits vest before they can prevail. In making this argument, the defendant ignores the portion of the above quotation which" }, { "docid": "9329352", "title": "", "text": "of the LMRA, in addition to injunctive relief pursuant to Sections 404(a)(1), 502(a)(1)(B) and 502(a)(3) of ERISA, the Seventh Amendment provided them with a right to a jury trial. Thus, the trial court acted properly in ordering a jury trial on the issue of whether the defendants breached the CBA in violation of Section 301(a) of the Labor Management Relations Act and Sections 502(a)(1) and (a)(3) of ERISA. V. RETIREES’ CONTRACTUAL ENTITLEMENT TO LIFETIME INSURANCE BENEFITS AND PRE-1986 RETIREES’ RIGHT TO FULLY PAID HMO BENEFITS The central issue in this case is whether Collective Bargaining Agreements and plan documents entitled retirees to welfare benefits for the rest of their lives and pre-1986 retirees to fully paid HMO benefits. The trial court accepted the jury’s verdict that the parties intended to contract for lifetime welfare benefits for persons who retired during the terms of each of the five CBAs between PST and the United Steelworkers and determined that retirees were entitled to these benefits. In Ryan v. Chromalloy American Corp., 877 F.2d 598, 602-03 (7th Cir.1989), we held that ERISA did not establish a statutory right of vesting for welfare benefits. But, we observed that employers and unions may choose to enter agreements for welfare benefits to vest: “[Pjarties are free to subject ... welfare benefits to vesting requirements not provided by ERISA, or they may reserve the power to terminate such plans. As the Sixth Circuit has stated in Hansen v. White Farm Equipment Co., 788 F.2d 1186 (6th Cir.1986), ‘the parties may themselves set out by agreement or by private design, as set out in plan documents, whether retiree welfare benefits vest, or whether they may be terminated.’ Id. at 1193.” Id. at 603. We have further recognized the legal proposition that, in the absence of an agreement to the contrary, a company is not obligated to continue retiree welfare benefits after the expiration of the contract: “The entitlements established by collective bargaining agreements do not survive their expiration or modification. So if, for example, the 1982-85 agreement had established a plan under which Jewel provided health benefits for" }, { "docid": "7680802", "title": "", "text": "the Master Agreements, which are the basis of the Union’s vesting claims. In short, there is no basis for concluding that later modifications to a retiree’s initial level of health benefits are vested. Rather, the fact that modifications were routinely negotiated is fundamentally inconsistent with the notion that any retirement health benefits were ever vested. See Anderson v. Alpha Portland, 836 F.2d at 1519. For the foregoing reasons, we conclude that the history of collective bargaining between Morrell and the Union does not support the Union’s claim that hourly retirees’ health benefits are vested. With that background, we turn to the provisions of the Master Agreements as construed by the district court. III. The Master Agreement Provisions. The Master Agreements contain many provisions that reflect an intent to confer only non-vested retiree health benefits. 1. The absence of any explicit vesting language in Appendix F is strong evidence of the parties’ intent to limit retiree benefits to the term of the Master Agreement. By contrast, the pension benefits in Appendix G were expressly referred to as vested. 2. As noted above, each Master Agreement contained a term clause expressly limiting the duration of the retirement health benefits contained in Appendix F to the duration of the Master Agreement. We held in Anderson v. Alpha Portland Industries that similar language was inconsistent with an intent to vest health benefits for life: “[i]t would render the durational clauses nugatory to hold that benefits continue for life even though the agreement which provides the benefits expires on a certain date.” 836 F.2d at 1519; see also Bidlack v. Wheelabrator Corp., 993 F.2d 603, 609 (7th Cir.) (en banc) (“employers adamant against assuming perpetual obligations can eliminate all doubt by insisting on a clause that makes any entitlement to health benefits granted by the agreement expire on the date the agreement expires”), cert. denied, — U.S. -, 114 S.Ct. 291, 126 L.Ed.2d 240 (1993). 3. The provision in the 1973 Master Agreement that continued health benefits for past retirees is evidence that prior benefits were not vested. See Anderson v. Alpha Portland, 836 F.2d" }, { "docid": "7680803", "title": "", "text": "as vested. 2. As noted above, each Master Agreement contained a term clause expressly limiting the duration of the retirement health benefits contained in Appendix F to the duration of the Master Agreement. We held in Anderson v. Alpha Portland Industries that similar language was inconsistent with an intent to vest health benefits for life: “[i]t would render the durational clauses nugatory to hold that benefits continue for life even though the agreement which provides the benefits expires on a certain date.” 836 F.2d at 1519; see also Bidlack v. Wheelabrator Corp., 993 F.2d 603, 609 (7th Cir.) (en banc) (“employers adamant against assuming perpetual obligations can eliminate all doubt by insisting on a clause that makes any entitlement to health benefits granted by the agreement expire on the date the agreement expires”), cert. denied, — U.S. -, 114 S.Ct. 291, 126 L.Ed.2d 240 (1993). 3. The provision in the 1973 Master Agreement that continued health benefits for past retirees is evidence that prior benefits were not vested. See Anderson v. Alpha Portland, 836 F.2d at 1518-19; DeGeare, 837 F.2d at 816. Likewise, as noted above, Mor-rell’s “unilateral” adoption of a modified health benefits package for past retirees with the signing of each new Master Agreement is evidence that prior benefits were not vested. 4. Appendix F in several of the Master Agreements contained a coordination-of-benefits provision. We have held that such provisions are also inconsistent with vesting. See Anderson v. Alpha Portland, 836 F.2d at 1519. In the face of this substantial textual evidence that retiree health benefits are not vested, the Union points to relatively little in the Master Agreements to the contrary. First, the Union refers us to § 9.1(b) of Appendix F to the 1979 Master Agreement, a provision that also appeared in the 1982 and 1985 Agreements: (b) After Retirees Death: * sfc Hs ‡ ‡ (2) When a Retired Employee dies who has selected a joint and survivor form of pension, the above coverage shall continue for the surviving spouse and dependent children until the earlier of the surviving spouse’s death or remarriage. ..." }, { "docid": "13790012", "title": "", "text": "as such, carry with them an inference that they continue so long as the prerequisite status is maintained. Thus, when the parties contract for benefits which accrue on the achievement of retiree status, there is an inference that the parties likely intended those benefits to continue so long as the beneficiary remains a retiree. Id. In Paperworkers, however, this circuit questioned the inference. Paperworkers, 908 F.2d at 1261 n. 12. Nevertheless, we recognized that there is also no presumption that retiree health insurance benefits conferred by a CBA are coterminous with that CBA. See id. at 1261. As the Supreme Court explained in Litton Financial Printing v. NLRB: [Contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement. Exceptions are determined by contract interpretation. Rights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement. 501 U.S. 190, 207, 111 S.Ct. 2215, 2226, 115 L.Ed.2d 177 (1991). The retired employees argue that this court’s decision in NLRB v. Pinkston-Hollar Construction Services, Inc., requires that this court find that their benefits were vested. 954 F.2d 306, 310 (5th Cir.1992). In particular, they rely on the court’s conclusion that “pension, health and welfare plans are considered terms and conditions of employment that survive expiration of the agreement.” 954 F.2d at 310 (citing Hinson d/b/a Hen House Mkt. No. S, 175 N.L.R.B. 596 (1969), enforced sub nom. Hinson v. NLRB, 428 F.2d 133, 136-37 (8th Cir.1970)). This sentence, however, must not be read in a vacuum. Pinkston-Hollar involved whether a company’s unilateral withdrawal of welfare benefits from active employees after the expiration of the CBA violated the company’s bargaining obligation under the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (5). Pinkston-Hollar, therefore, sheds little light on the duration of retiree benefits, which are not subject to mandatory collective bargaining. See Pittsburgh Plate Glass, 404 U.S. 157, 92 S.Ct. 383, 30 L.Ed.2d 341. Moreover, literal application of the Pinkston-Hollar language would be especially questionable in light of the skepticism expressed in Paper-workers about an inference that retiree benefits are vested. 908 F.2d" }, { "docid": "13790011", "title": "", "text": "62 (4th Cir.1989); Anderson, 836 F.2d at 1516 (citing UFCW Local Union No. 150-A v. Dubuque Packing Co., 756 F.2d 66, 69 (8th Cir.1985)). Retired employees bear the burden of proving that their health insurance benefits are vested. Anderson, 836 F.2d at 1517; Dubuque, 756 F.2d at 70. The interpretation of collective bargaining agreements is governed by federal law. Paperworkers, 908 F.2d at 1256. Nonetheless, the court may draw upon state rules of contractual interpretation to the extent that those rules are “consistent with federal labor policies.” Id. (quoting International Union, UAW v. Yard-Man, Inc., 716 F.2d 1476, 1479 (6th Cir.1983)) (other citations omitted). Even when no identifiable federal labor policy favors or disfavors a particular interpretation, the rules of contractual interpretation are still applied with “flexibility ... in the context of labor contracts.” Id. In Yard-Man, the Sixth Circuit suggested an inference that retiree benefits are vested benefits. 716 F.2d at 1482. In concluding that the parties intended to vest retiree benefits, the court explained: [R]etiree benefits are in a sense “status” benefits which, as such, carry with them an inference that they continue so long as the prerequisite status is maintained. Thus, when the parties contract for benefits which accrue on the achievement of retiree status, there is an inference that the parties likely intended those benefits to continue so long as the beneficiary remains a retiree. Id. In Paperworkers, however, this circuit questioned the inference. Paperworkers, 908 F.2d at 1261 n. 12. Nevertheless, we recognized that there is also no presumption that retiree health insurance benefits conferred by a CBA are coterminous with that CBA. See id. at 1261. As the Supreme Court explained in Litton Financial Printing v. NLRB: [Contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement. Exceptions are determined by contract interpretation. Rights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement. 501 U.S. 190, 207, 111 S.Ct. 2215, 2226, 115 L.Ed.2d 177 (1991). The retired employees argue that this court’s decision in NLRB v. Pinkston-Hollar Construction Services, Inc., requires that" }, { "docid": "23057459", "title": "", "text": "benefits vested because “[t]here is simply.no evidence that the Company and the Union did not intend to vest the right to benefits in the retirees.”). But, looking at things as they are rather than as they might be, the direction indicated by the lead opinion in adopting option 2 and the weak no-vest rule is a significant improvement over the apparently extreme course suggested by Senn. . [T]he parties occasionally have understandings or expectations that were so fundamental that they did not need to negotiate about those expectations. When the court \"implies a promise” or holds that “good faith” requires a party not to violate those expectations, it is recognizing that sometimes silence says more tha[n] words.... Arthur Corbin, Corbin on Contracts § 570 (Colin K. Kaufman ed., Supp.1984). . The dissent suggests that Litton Fin. Printing v. NLRB, - U.S. -, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991), mandates the imposition of the strong no-vest rule. Litton, however, held that a collective bargaining agreement's arbitration clause did not terminate on the expiration of the agreement, but continued after the agreement's termination to apply to disputes \"arising under the contract.” Id. at -, 111 S.Ct. at 2225. Further, the language of the Court in Litton clearly recognizes the existence of vested benefits quite independent of \"explicit terms.” What the Court said bears repeating: “Rights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement. And of course, if a collective bargaining agreement provides in explicit terms that certain benefits continue after the agreement’s expiration, disputes as to such continuing benefits may be found to arise under the agreement, and so become subject to the contract's arbitration provisions.” Id. at -, 111 S.Ct. at 2226. The Court does not state that a contract right vests only if the agreement so provides in explicit terms. Rather, vesting is a matter of contract interpretation, which seeks to determine the intent of the parties. . [Wjhat parties do \"agree to,” particularly when they are silent, must be interpreted in light of [those] assumptions about reality that they" }, { "docid": "4819399", "title": "", "text": "where the merits and arbitrability questions are inextricably intertwined, a court’s arbitrability decision may, of necessity, touch incidentally on the merits. In Litton Financial Printing Div. v. NLRB, 501 U.S. 190, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991), the union representing Litton’s employees sought to arbitrate a dispute over layoffs of ten workers, including Litton’s six most senior employees. Like the CBA in this case, the Agreement contained an arbitration provision whose scope was limited to disputes “regarding [the] Agreement and any alleged violations of the Agreement, [and] the construction to be placed on any clause or clauses of the Agreement.” Id. at 194, 111 S.Ct. 2215. The Litton CBA provided that, “in case of layoffs, lengths of continuous service will be the determining factor if other things such as aptitude and ability are equal.” Id. However, because the agreement had expired nearly a year before the layoffs occurred, Litton contested the grievance’s arbitrability. The union argued that the seniority provision created a vested right which survived the expiration of the agreement, and thus the layoffs constituted violations of the agreement notwithstanding that they had occurred after expiration. The Supreme Court ruled for Litton and held the grievance non-arbitrable. It noted that “[o]nly where [factors such as aptitude and ability] were equal was the employer required to look to seniority.” Id. at 210, 111 S.Ct. 2215. The Court reasoned: “The important point is that factors such as aptitude and ability do not remain constant, but change over time. They cannot be said to vest or accrue or be understood as a form of deferred compensation. ... We cannot infer an intent on the part of the contracting parties to freeze any particular order of layoff or vest any contractual right as of the Agreement’s expiration.” Id. Only after it construed the disputed provision and determined that no rights were vested was the Court able to conclude that the grievance did not arise under the Agreement, and was thus non-arbitrable. The Union in this case characterizes Litton as inapplicable because this case does not involve an expired CBA, but Litton is" }, { "docid": "22493041", "title": "", "text": "presumed that \"a general durational clause\" in a collective-bargaining agreement \" 'says nothing about the vesting of retiree benefits' \" in that agreement. Id., at ---- - ----, 135 S.Ct., at 934-935 (quoting Noe v. PolyOne Corp., 520 F.3d 548, 555 (C.A.6 2008) ). If the collective-bargaining agreement lacked \"a termination provision specifically addressing retiree benefits\" but contained specific termination provisions for other benefits, the Sixth Circuit presumed that the retiree benefits vested for life. Tackett, supra, at ---- - ----, 135 S.Ct., at 934-935 (citing Yard-Man, supra, at 1480). The Sixth Circuit also presumed vesting if \"a provision ... 'tie[d] eligibility for retirement-health benefits to eligibility for a pension.' \" 574 U.S., at ----, 135 S.Ct., at 934 (quoting Noe, supra, at 558). This Court's decision in Tackett \"reject[ed] the Yard-Man inferences as inconsistent with ordinary principles of contract law.\" 574 U.S., at ----, 135 S.Ct., at 937. Most obviously, the Yard-Man inferences erroneously \"refused to apply general durational clauses to provisions governing retiree benefits.\" 574 U.S., at ----, 135 S.Ct., at 936. This refusal \"distort[ed] the text of the agreement and conflict[ed] with the principle of contract law that the written agreement is presumed to encompass the whole agreement of the parties.\" Ibid. The Yard-Man inferences also incorrectly inferred lifetime vesting whenever \"a contract is silent as to the duration of retiree benefits.\" 574 U.S., at ----, 135 S.Ct., at 937. The \"traditional principle,\" Tackett explained, is that \" 'contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement.' \" Id., at ----, 135 S.Ct., at 937 (quoting Litton Financial Printing Div., Litton Business Systems, Inc. v. NLRB, 501 U.S. 190, 207, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991) ). \"[C]ontracts that are silent as to their duration will ordinarily be treated not as 'operative in perpetuity' but as 'operative for a reasonable time.' \" 574 U.S., at ----, 135 S.Ct., at 936 (quoting 3 A. Corbin, Corbin on Contracts § 553, p. 216 (1960)). In fact, the Sixth Circuit had followed this principle in cases involving noncollectively bargained agreements, see Sprague v. General" }, { "docid": "22828491", "title": "", "text": "U.S. at 193, 111 S.Ct. at 2218. Addressing the question whether the duties and obligations imposed by a contract survive the contract, the Court wrote: As with the obligation to make pension contributions ..., other contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement. Exceptions are determined by contract interpretation. Rights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement. And of course, if a collective-bargaining agreement provides in explicit terms that certain benefits continue after the agreement’s expiration, disputes as to such continuing benefits may be found to arise under the agreement, and so become subject to the contract’s arbitration provisions. Id. at 207-08, 111 S.Ct. at 2226 (all emphases added). In its brief, the defendant focuses on the portion of the above quotation which we have underscored and argues that Litton requires the plaintiffs to prove an “express agreement” that benefits vest before they can prevail. In making this argument, the defendant ignores the portion of the above quotation which we have italicized in which the Court recognizes that courts, through rules of contract interpretation, can find that rights accrue or vest under the agreement even if they are not explicitly set out in the agreement. See Bidlack v. Wheelabrator Corp., 993 F.2d 603, 606-08 (7th Cir.) (en banc) (citing Litton in support of the rule that when CBAs are vague regarding the vesting of certain benefits, courts may resort to rules of interpretation, and to extrinsic evidence, in determining if the parties intended the rights to vest), cert. denied, — U.S. -, 114 S.Ct. 291, 126 L.Ed.2d 240 (1993). Far from contradicting Yard-Man, Litton actually supports its reasoning. In Massachusetts v. Morash, the Court decided that an employer’s payment of vacation benefits does not constitute a welfare benefit plan under ERISA. Morash, 490 U.S. at 120-21, 109 S.Ct. at 1675-76. In making this determination, the Court noted that ERISA’s vesting requirements do not apply to welfare benefit plans. Id. at 119, 109 S.Ct. at 1675. This was the extent of the Court’s discussion of" }, { "docid": "22493043", "title": "", "text": "Motors Corp., 133 F.3d 388, 400 (1998) (en banc), which \"only underscore[d] Yard-Man 's deviation from ordinary principles of contract law.\" Tackett, supra, at ----, 135 S.Ct., at 937. As for the tying of retiree benefits to pensioner status, Tackett rejected this Yard-Man inference as \"contrary to Congress' determination\" in the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 891. 574 U.S., at ----, 135 S.Ct., at 935. The Sixth Circuit adopted this inference on the assumption that retiree health benefits are \" 'a form of delayed compensation or reward for past services,' \" like a pension. Id., at ----, 135 S.Ct., at 931-932 (quoting Yard-Man, supra, at 1482). But ERISA distinguishes between plans that \"resul[t] in a deferral of income,\" § 1002(2)(A)(ii), and plans that offer medical benefits, § 1002(1)(A). See Tackett, 574 U.S., at ----, 135 S.Ct., at 935. Tackett thus concluded that this and the other \"inferences applied in Yard-Man and its progeny\" do not \"represent ordinary principles of contract law.\" Id., at ----, 135 S.Ct., at 929. B Like Tackett, this case involves a dispute between retirees and their former employer about whether an expired collective-bargaining agreement created a vested right to lifetime health care benefits. In 1998, CNH Industrial N.V. and CNH Industrial America LLC (collectively, CNH) agreed to a collective-bargaining agreement. The 1998 agreement provided health care benefits under a group benefit plan to certain \"[e]mployees who retire under the ... Pension Plan.\" App. to Pet. for Cert. A-116. \"All other coverages,\" such as life insurance, ceased upon retirement. Ibid. The group benefit plan was \"made part of\" the collective-bargaining agreement and \"r[an] concurrently\" with it. Id., at A-114. The 1998 agreement contained a general durational clause stating that it would terminate in May 2004. Id., at A-115. The agreement also stated that it \"dispose[d] of any and all bargaining issues, whether or not presented during negotiations.\" Ibid. When the 1998 agreement expired in 2004, a class of CNH retirees and surviving spouses (collectively, the retirees) filed this lawsuit, seeking a declaration that their health care benefits vested for life and an" }, { "docid": "22828489", "title": "", "text": "buttresses the already sufficient evidence of such intent in the language of this agreement itself. Id. Yard-Man is a prior decision of a panel of this circuit. Thus, we are bound to follow it “unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules [it].” Salmi v. Secretary of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985). The defendant, aware of this rule, argues that four recent Supreme Court decisions require us to modify Yard-Man: Curtiss-Wright Corp. v. Schoonejongen, — U.S. -, 115 S.Ct. 1223, 131 L.Ed.2d 94 (1995); Litton Financial Printing Division v. NLRB, 501 U.S. 190, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991); Massachusetts v. Morash, 490 U.S. 107, 109 S.Ct. 1668, 104 L.Ed.2d 98 (1989); and Laborers Health & Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484 U.S. 539, 108 S.Ct. 880, 98 L.Ed.2d 936 (1988). After examining these cases, we disagree. In Schoonejongen, the plaintiffs sued their employer, alleging that the employer’s termination of their health insurance benefits constituted an improper amendment of their welfare benefits plan. Schoonejongen, — U.S. at -, 115 S.Ct. at 1227. In its opinion, the Court decided what kind of amendment procedure ERISA requires the plans to include. The vesting of rights through agreements such as CBAs was not at issue. See id. at-, 115 S.Ct. at 1226 (“This case presents the question whether the standard provision in many employer-provided benefit plans stating that ‘The Company reserves the right at any time to amend the plan’ sets forth an amendment procedure that satisfies [ERISA] § 402(b)(3).”). The Court simply noted that ERISA does not mandate minimum vesting requirements for welfare benefit plans, and that ERISA allows employers to adopt, modify, or terminate such plans at will. Id. at -, 115 S.Ct. at 1228. The case bears no relation to the issues in YardMan. In Litton, the Court determined whether an employer and the union representing its employees must submit their disputes to arbitration under an arbitration clause in an expired CBA. Litton Fin. Printing Div., 501" }, { "docid": "9329358", "title": "", "text": "or the expiration of the governing Collective Bargaining Agreement. In short, our examination of the relevant Collective Bargaining Agreements and plan documents incorporated therein by reference reveals that they are void of any language that would provide the basis for finding an ambiguity in regard to a vestment of lifetime welfare benefits to employees who retired under the terms of any of the five Collective Bargaining Agreements. Thus, under our holdings in Ryan and Merk, set forth above, the retirees possessed no vested interest in welfare benefits, and the entitlements did not survive the expiration of the CBAs. The district court held that the Collective Bargaining Agreements and plan documents were ambiguous, as they referred to continued coverage for retirees, which could be interpreted to mean that the company “would provide benefits for the life of those who retire during the term of the contract....” Thus, the trial court held that resort to extrinsic evidence was necessary to resolve the issue of the plaintiffs’ entitlement to lifetime welfare benefits. We disagree. The default rule in this Circuit is that “entitlements established by collective bargaining agreements do not survive their expiration or modification.” Merk, 848 F.2d at 763. Thus, it requires more than a statement in a CBA that welfare benefits “will continue” to create an ambiguity about vesting, for the logical interpretation under our rule is that benefits “will continue” for the duration of the contract. Moreover, the Collective Bargaining Agreements and plan documents at issue are either silent on the question of whether a right to lifetime benefits should vest or appear to explicitly prohibit such vesting (i.e., the 1985 and 1986 Insurance Booklets and the 1986-88 Collective Bargaining Agreement). The mere silence of Collective Bargaining Agreements and plan documents concerning the vestment of welfare benefits fails to give rise to an ambiguity. Rather, this silence and the explicit repudiation of any possible basis for a lifetime benefits claim in the 1986-88 Collective Bargaining Agreement as well as the 1985 and 1986 Group benefits booklets referenced therein demonstrate that the signatories to the contract did not intend that a" }, { "docid": "7073806", "title": "", "text": "from time to time by the Company in its sole discretion by its President or any one of its Vice Presidents. It is the positions of [the unions] that the Company may not terminate the benefits of currently retired employees. The 1997 restatement of this medical plan contained similar language. The plaintiffs also direct us to a slew of extrinsic evidence, including various opinions of union representatives as to the nature of Ameren’s obligation, as well as deposition and other testimony of company officials which the plaintiffs believe support their case. As we explain below, this extrinsic evidence is not proper to stave off summary judgment. II. ANALYSIS Because the parties only dispute the application of settled law to the facts of this case, we will only briefly review the relevant legal principles. Unlike pension benefits, ERISA does not require the vesting of health-care benefits. Bland v. Fiatallis N. Am., Inc., 401 F.3d 779, 783 (7th Cir.2005) (citations omitted). “[I]f they vest at all, they do so under the terms of a particular contract.” Pabst Brewing Co. v. Corrao, 161 F.3d 434, 439 (7th Cir.1998). Therefore, as harsh as it may sound, in the absence of a contractual obligation “employers are ‘generally free ... for any reason at any time, to adopt, modify or terminate welfare plans.’ ” Bland, 401 F.3d at 783 (quoting Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 78, 115 S.Ct. 1223, 131 L.Ed.2d 94 (1995)). If a CBA or other governing document provides for health-care benefits for retirees, but is silent on the issue of whether or not those benefits exceed the life of the agreement, then in this circuit the presumption is that the benefits expire with the agreement. Bidlack v. Wheelabrator Corp., 993 F.2d 603, 606-08 (7th Cir.1993) (en banc). However, general contract law still applies, and in the event of a patent or latent ambiguity, a plaintiff may be entitled to a trial where extrinsic evidence can be introduced to establish the true intent of the agreement. Rossetto v. Pabst Brewing Co., 217 F.3d 539, 547 (7th Cir.2000) (summarizing four rules governing “litigation" }, { "docid": "15350513", "title": "", "text": "take account of inflation, changes in medical practice and technology, and increases in the costs of treatment independent of inflation. These unstable variables prevent accurate predictions of future needs and costs. Moore v. Metropolitan Life Ins. Co., 856 F.2d 488, 492 (2d Cir.1988). The rule is the same for plans that provide welfare benefits to retirees — retiree welfare benefits are generally not vested, and an employer can amend or terminate a plan providing such benefits at any time. See Curtiss-Wright, 514 U.S. at 75, 78, 115 S.Ct. at 1226-27, 1228 (discussing a retirement welfare plan, and stating: “ERISA does not create any substantive entitlement to employer-provided health benefits or any other kind of welfare benefits. Employers ... are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare plans. Nor does ERISA establish any minimum ... vesting ... requirements for welfare plans_ Accordingly, that [defendant] amended its plan to deprive [plaintiffs] of health benefits is not a cognizable complaint under ERISA” ' (citations omitted)); Schonholz, 87 F.3d at 77 (discussing a severance plan which provided ERISA welfare benefits, and stating: “Under ERISA it is the general rule that an employee welfare benefit plan is not vested and that an employer has the right to terminate or unilaterally to amend the plan at any time.”); Moore, 856 F.2d at 491 (discussing a retirement welfare plan, and stating: “Automatic vesting does not occur in the case of welfare plans.”). But see UAW v. Yard-Man, Inc., 716 F.2d 1476, 1482 (6th Cir.1983) (“[R]etiree benefits are in a sense ‘status’ benefits which, as such, carry with them an inference that they continue so long as the prerequisite status lie., as a retiree] is maintained.”). The rule under section 301 is similar — after a CBA expires, an employer generally is free to modify or terminate any retiree medical benefits that the employer provided pursuant to that CBA. See Litton Fin. Printing Div., a Div. of Litton Bus. Sys. v. NLRB, 501 U.S. 190, 207, 111 S.Ct. 2215, 2225-26, 115 L.Ed.2d 177 (1991) (“As with the obligation to" }, { "docid": "23057473", "title": "", "text": "539, 108 S.Ct. 830, 98 L.Ed.2d 936 (1988) ], other contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement. Exceptions are determined by contract interpretation. Rights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement. And of course, if a collective bargaining agreement provides in explicit terms that certain benefits continue after the agreement’s expiration, disputes as to such continuing benefits may be found to arise under the agreement”. Litton Financial Printing Division v. NLRB, - U.S. -, -, 111 S.Ct. 2215, 2226, 115 L.Ed.2d 177 (1991) (emphasis added). In Litton the Court looked for the “explicit terms” requiring the employer to honor seniority after the terminal date of the contract and, finding none, rebuffed the union’s claim. It did not search outside the terms of the agreement. Provisions in a collective bargaining agreement establishing benefits for retirees turn out to be a weak sort of promise. For retirees’ health benefits are not a mandatory subject of collective bargaining. As a result, the employer may change levels of benefits without dickering with the union. So much is the holding of Chemical Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971), where the employer made a mid-term alteration without, the Court held, shirking any duty of bargaining. Health and welfare benefits after retirement turn out to be unilateral rather than bilateral contracts. An employer may bind itself by making a sufficiently strong promise, id. at 181 n. 20, 92 S.Ct. at 399 n. 20; cf. Nolde Brothers, Inc. v. Bakery & Confectionery Workers, 430 U.S. 243, 97 S.Ct. 1067, 51 L.Ed.2d 300 (1977), but the extent of this promise depends on the employer’s words and deeds, not what the union’s negotiators think or say. Many courts have concluded that in unilateral promise cases employers may reduce or even discontinue post-retirement health benefits despite language stronger than that in the Wheelabrator pacts, and without regard to extrinsic evidence of the employees’ beliefs. E.g., Boyer and Gill (both holding that the terms of" }, { "docid": "22493042", "title": "", "text": "refusal \"distort[ed] the text of the agreement and conflict[ed] with the principle of contract law that the written agreement is presumed to encompass the whole agreement of the parties.\" Ibid. The Yard-Man inferences also incorrectly inferred lifetime vesting whenever \"a contract is silent as to the duration of retiree benefits.\" 574 U.S., at ----, 135 S.Ct., at 937. The \"traditional principle,\" Tackett explained, is that \" 'contractual obligations will cease, in the ordinary course, upon termination of the bargaining agreement.' \" Id., at ----, 135 S.Ct., at 937 (quoting Litton Financial Printing Div., Litton Business Systems, Inc. v. NLRB, 501 U.S. 190, 207, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991) ). \"[C]ontracts that are silent as to their duration will ordinarily be treated not as 'operative in perpetuity' but as 'operative for a reasonable time.' \" 574 U.S., at ----, 135 S.Ct., at 936 (quoting 3 A. Corbin, Corbin on Contracts § 553, p. 216 (1960)). In fact, the Sixth Circuit had followed this principle in cases involving noncollectively bargained agreements, see Sprague v. General Motors Corp., 133 F.3d 388, 400 (1998) (en banc), which \"only underscore[d] Yard-Man 's deviation from ordinary principles of contract law.\" Tackett, supra, at ----, 135 S.Ct., at 937. As for the tying of retiree benefits to pensioner status, Tackett rejected this Yard-Man inference as \"contrary to Congress' determination\" in the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 891. 574 U.S., at ----, 135 S.Ct., at 935. The Sixth Circuit adopted this inference on the assumption that retiree health benefits are \" 'a form of delayed compensation or reward for past services,' \" like a pension. Id., at ----, 135 S.Ct., at 931-932 (quoting Yard-Man, supra, at 1482). But ERISA distinguishes between plans that \"resul[t] in a deferral of income,\" § 1002(2)(A)(ii), and plans that offer medical benefits, § 1002(1)(A). See Tackett, 574 U.S., at ----, 135 S.Ct., at 935. Tackett thus concluded that this and the other \"inferences applied in Yard-Man and its progeny\" do not \"represent ordinary principles of contract law.\" Id., at ----, 135 S.Ct., at 929. B Like" }, { "docid": "15350514", "title": "", "text": "77 (discussing a severance plan which provided ERISA welfare benefits, and stating: “Under ERISA it is the general rule that an employee welfare benefit plan is not vested and that an employer has the right to terminate or unilaterally to amend the plan at any time.”); Moore, 856 F.2d at 491 (discussing a retirement welfare plan, and stating: “Automatic vesting does not occur in the case of welfare plans.”). But see UAW v. Yard-Man, Inc., 716 F.2d 1476, 1482 (6th Cir.1983) (“[R]etiree benefits are in a sense ‘status’ benefits which, as such, carry with them an inference that they continue so long as the prerequisite status lie., as a retiree] is maintained.”). The rule under section 301 is similar — after a CBA expires, an employer generally is free to modify or terminate any retiree medical benefits that the employer provided pursuant to that CBA. See Litton Fin. Printing Div., a Div. of Litton Bus. Sys. v. NLRB, 501 U.S. 190, 207, 111 S.Ct. 2215, 2225-26, 115 L.Ed.2d 177 (1991) (“As with the obligation to make pension contributions ..., other contractual obligations will cease, in the ordinary course, upon termination of the [collective] bargaining agreement.”); LTV Steel Co. v. UMW (In re Chateaugay Corp.), 945 F.2d 1205, 1208-09 (2d Cir.1991) (holding that the obligation of an employer to pay retiree health benefits ended when a collective bargaining agreement which provided those benefits expired); Century Brass Prods, v. UAW (In re Century Brass Products), 795 F.2d 265, 269 n. 2 (2d Cir.1986) (“Whether retirees’ insurance benefits extended beyond the term of a collective bargaining agreement is determined by reference to the terms of the contract and the parties’ intent.”); Bidlack, 998 F.2d at 606 (“ordinarily when a contract expires, it — expires. It is at an end” and therefore “a court should cast a cold eye on contentions that a contract with a fixed term actually created a perpetual obligation”). However, under both section 301 and ERISA, if an employer promises vested benefits, that promise will be enforced. See LMRA § 301(a), 29 U.S.C. § 185(a) (federal courts can hear, “[s]uits" }, { "docid": "3728190", "title": "", "text": "question because the Master Agreements under which the dispute arose are no longer in force, and the agreements to arbitrate found therein are likewise expired. But the Supreme Court has explained that it has not held “that termination of a collective-bargaining agreement automatically extinguishes a party’s duty to arbitrate grievances arising under the contract.” Nolde Bros. v. Local No. 358, Bakery & Confectionery Workers Union, 430 U.S. 243, 251, 97 S.Ct. 1067, 51 L.Ed.2d 300 (1977). The presumption of arbitrability in labor law jurisprudence will survive a terminated contract, such as the expired Master Agreements in this case, where the parties have failed to negate the presumption “expressly or by clear implication.” Id. at 255, 97 S.Ct. 1067. The Supreme Court has since instructed, however, that the conclusion of the Court in Nolde Bros, regarding the postex-piration presumption of arbitrability “was limited by the vital qualification that arbitration was of matters and disputes arising out of the relation governed by contract.” Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 204, 111 S.Ct. 2215, 115 L.Ed.2d 177 (1991). Otherwise, “parties to a collective-bargaining agreement would be presumed to intend that any dispute arising between them years or even decades after the expiration of the agreement would be arbitrable.” Chauffeurs, Teamsters & Helpers, Local Union 238 v. C.R.S.T., Inc., 795 F.2d 1400, 1404 (8th Cir.) (en banc) (quoting Local 703, Int’l Bhd. of Teamsters v. Kennicott Bros., 771 F.2d 300, 303 (7th Cir.1985)), cert. denied, 479 U.S. 1007, 107 S.Ct. 647, 93 L.Ed.2d 702 (1986). As relevant here, the Union’s grievance over Crown’s unilateral modification of the retiree health plans arises under the Master Agreements, and survives the expiration of those agreements, if the benefits under those health plans were “accrued or vested under the agreement.” Litton Fin., 501 U.S. at 207, 111 S.Ct. 2215. So to decide the question of arbitrability, we must first determine whether the retirees’ health benefits vested before the Master Agreements expired, that is, whether Crown’s unsatisfied obligation to provide such benefits was “already fixed under the contract[s].” Id. at 206, 111 S.Ct. 2215. That brings" } ]

[ { "docid": "22694975", "title": "", "text": "was not doing so in a vacuum; rather, the Iranian government’s acts against Nahrvani in Germany represent a re-initiation of a campaign of terror from which Nahrvani had narrowly escaped. As a result, we cannot assume that the death threats, vandalism, and harassment made no greater impact on Nahrvani than similar incidents would have made on an individual who had never been imprisoned and tortured previously. Narhvani experienced these threats not only as a surviv- or of torture and imprisonment, but also in the context of numerous reports of Iranian state-sponsored violence, including murders, against Iranian political exiles living in Europe and against Iranian Christians. These facts are compelling evidence that the Iranian government subjected Narhvani in Germany to psychological and emotional trauma that rises to the level of persecution. In sum, taking together a) the death threats, repeated harassment, near-confrontations, and multiple and escalating acts of physical vandalism by Iranian government agents in Germany; b) the past physical torture and imprisonment of Na-rhvani by agents of the same government in Iran; c) the Iranian government’s pattern and practice of violence against Iranian exiles residing in Europe generally, and Germany in particular; d) the Iranian government’s pattern and practice of persecuting and executing Muslims who convert to Christianity; and e) Nahrvani’s membership in multiple groups that the Iranian government strongly disfavors, I am compelled to conclude that Nahrvani suffered persecution in Germany. C. Inability or Unwillingness to Control Nongovernmental Forces It is well-established that, for the purposes of asylum eligibility, persecution can be perpetrated by either governmental forces or “nongovernmental groups ... which the government is unable or unwilling to control.” Navas, 217 F.3d at 656 n. 10 (internal quotation and citations omitted); see also Avetova-Elisseva v. INS, 213 F.3d 1192, 1197-98 (9th Cir.2000); Singh v. INS, 94 F.3d 1353, 1360 (9th Cir.1996). To meet this requirement, Nahrvani need not show that the government actually encouraged or aided the nongovernmental forces. As we explained in Navas, “[g]overnment action is not necessarily required; instead, police inaction in the face of such persecution can suffice to make out a claim.” Navas, 217" } ]

[ { "docid": "22326522", "title": "", "text": "“that union leaders like Osorio are at grave risk of persecution by Guatemalan authorities”); cf. Chen v. INS, 195 F.3d 198, 204 (4th Cir.1999) (holding that China’s “one child” policy does not amount to a pattern or practice of persecution). In this case, the evidence in the record does not compel the conclusion that there is a pattern or practice of persecution against Armenians in Russia. The affidavit of Dr. Dennis Papazian, which the majority points to as “the most salient evidence as to Avetova’s potential future in Russia,” [maj. op. at 1200 n.18], admits as much. Dr. Papazian states that “some Armenians in the Russian Federation experience only mild discrimination, while others face life-threatening persecution without there being any distinction between the activities of the individuals concerned,” and that “some Armenians” will continue to suffer persecution in Russia. In other words, the sworn statement of Avetova’s own expert reveals that, because some Armenians are persecuted and some are not, Armenians in Russia do not face one of the “more extreme situations in which members of an entire group ... are systematically persecuted.” Kotasz, 31 F.3d at 852. Accordingly, I must conclude that substantial evidence supports the BIA’s finding that there does not “exist[ ] in Russia a pattern or practice of persecution of persons on the basis of Armenian ethnicity.” II. In Kotasz, we also noted that even if members of the disfavored groups are not threatened by systematic persecution of the group’s entire membership, the fact of group membership nonetheless places them at some risk. That risk can rise to the level required for establishing a well-founded fear of persecution either as a result of an individual’s activities in support of the group, or because the individual is a member of a certain element of the group that is itself at greater risk of persecution than is the membership of the group as a whole. Id. at 853; accord Mgoian, 184 F.3d at 1035 n. 4. The majority points to three incidents, incidents that it finds “do not amount to ‘persecution’ (that is, past persecution) within the meaning" }, { "docid": "22726871", "title": "", "text": "over here.” AR 124. Sael testified that the men meant to refer to her ethnicity, because she was the only Chinese person in the neighborhood. AR 143, 149. These past experiences with anti-Chinese threats and violence support a “specific inference of personal danger.” Hartooni v. INS, 21 F.3d 336, 341 (9th Cir. 1994) (internal quotation marks omitted); see also Hoxha, 319 F.3d at 1184 (“[T]he threats and violence Hoxha experienced, although not sufficient to compel a finding of past persecution that would create a presumption in his favor, are indicative of his individualized risk of experiencing similar mistreatment if he returns to Koso-vo.”). In Hartooni, the asylum applicant was a Christian Armenian from Iran. The Iranian government had closed the applicant’s Armenian Christian school and forbidden the celebration of Christmas. 21 F.3d at 341. One time, soldiers stoned Hartooni’s church while she was inside. Id. Another time, they approached Hartoo-ni and a group of girls, who did not have their hair properly bound, and took some of the girls away, although Hartooni managed to escape. Id. Soldiers also visited Hartooni’s family’s home to ask about relatives who had fled to the United States, including Hartooni. Id. Although Hartoo-ni was never personally harmed, we held that these incidents, if believed, would be “enough to satisfy the requirement of a personal connection to the general persecution suffered by Christian Armenians in Iran.” Id. at 342; see also Hoxha, 319 F.3d at 1181, 1184 (holding that the petitioner demonstrated a “particularized risk” of persecution on account of his Albanian ethnicity with evidence that he was harassed and threatened, attacked on one occasion by a group of anti-Albanian Serbs, and ordered to appear for an “informative conversation” with authorities); Avetovar-Elis-seva, 213 F.3d at 1197, 1201-02 (holding that the petitioner established a “personalized threat” of future persecution on ac count of her Armenian ethnicity with evidence that she was “harassed and pushed by Russian officers” and could not get a job because of her ethnicity, and with evidence that an Armenian friend’s daughter was raped and beaten). As in Hartooni, Hoxha, and Avetova-Elisseva, Sael’s past" }, { "docid": "22326524", "title": "", "text": "of the statute,” [maj. op. at 1201], that “coupled with the overall risks that Dr. Papazian had identified,” [id. at 1197], compel the granting of Avetova’s petition: “(1) [Avetova] was harassed and pushed by Russian officers because of her ethnicity; (2) [Avetova] could not get a job even though she had a diploma because ‘there were no jobs for Armenians’; (3) [Avetova’s] friend’s daughter (who was Armenian) was raped and beaten by police officials,” [id. at 1197-98 (footnote omitted) ]. The harassment identified by the majority “falls far short of the required showing needed to compel a finding of persecution.” Khourassany v. INS, 208 F.3d 1096, 1100 (9th Cir.2000) (holding that similar harassment was insufficient to establish past persecution or a well-founded fear of persecution); accord Singh v. INS, 134 F.3d 962, 967 (9th Cir.1998); Prasad v. INS, 47 F.3d 336, 339 (9th Cir.1995); Mendez-Efrain v. INS, 813 F.2d 279, 283 (9th Cir.1987). The majority’s assertion that Avetova “could not get a job” is belied by Avetova’s own testimony, which reveals that she worked in Moscow at a hotel, as a babysitter, and as a cleaning woman, and “was getting by” economically. Cf. Kovac v. INS, 407 F.2d 102, 107 (9th Cir.1969) (holding that “a probability of deliberate imposition of substantial economic disadvantage upon an alien” may constitute persecution). Finally, that Ave-tova’s friend’s daughter was raped, although deplorable, see Lopez-Galarza v. INS, 99 F.3d 954, 959 (9th Cir.1996) (noting that “rape can support a finding of persecution”), does not “mak[e Avetova] a more likely target for persecution.” Mgoian, 184 F.3d at 1035 n. 4. Nothing in the record suggests, and nothing in the majority’s opinion explains, why the rape of Ave-tova’s “friend’s daughter” on account of the “friend’s daughter[’s]” ethnicity should make Avetova, as opposed to any other Armenian in Russia, “more likely to come to the attention of the persecutors.” Id.; see also Kotasz, 31 F.3d at 853-54 (explaining the individualized targeting requirement in non-pattern or practice cases). Rather than demonstrating that Avetova was targeted for persecution in Russia, the evidence shows that (i) Soviet troops rescued her from" }, { "docid": "22326510", "title": "", "text": "to Kotasz itself omitted) at 184 F.3d at 1035 n. 4: [I]f the applicant is a member of a “disfavored” group, but the group is not subject to systematic persecution, this court will look to (1) the risk level of membership in the group (i.e., the extent and the severity of persecution suffered by the group) and (2) the alien’s individual risk level (i.e., whether the alien has a special role in the group or is more likely to come to the attention of the persecutors making him a more likely target for persecution). The relationship between these two factors is corre-lational; that is to say, the more serious and widespread the threat of persecution to the group, the less individualized the threat of persecution needs to be. We therefore do not view Kotasz, as does the dissent, as casting any cloud on the conclusions reached here. In short, there is only scant evidence to cast doubt on the possibility of actual governmental support of harassment that would pose a “strong likelihood” of physical harm or death to Avetova-and more importantly, nothing in the record contradicts the conclusion of governmental unwillingness or inability to stop such harassment. Hence Avetova has demonstrated an objectively reasonable, as well as subjective, fear. As suggested by what has just been said, we also hold that the demonstrated harassment of Armenians in Russia amounts to “persecution” under Section 1101(a)(42)(A). Again no evidence was proffered by the INS to suggest the absence of such hostile treatment of Armenians in Russia. While not all harassment rises to the statutory level of “persecution,” here the detention, intimidation and beatings of Armenians because of their ethnicity, as described in the record, involves “the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive” Ghaly, 58 F.3d at 1431 (quotation marks and citation omitted). To the extent that the BIA or the IJ might be perceived as having decided differently (a doubtful premise, see n.20), that could not be viewed as supported by substantial evidence. Conclusion We hold that" }, { "docid": "22326492", "title": "", "text": "Opinion by Judge SHADUR; Dissent by Judge WARDLAW. SHADUR, District Judge: Maya Avetova-Elisseva (“Avetova”), a 62 year-old Armenian native and citizen of both Azerbaijan and Russia, petitions for review of a final decision of the Board of Immigration Appeals (“BIA”) affirming the denial by an immigration judge (“IJ”) of her application for asylum and withholding of deportation. Avetova claims that she suffered persecution in Russia on account of her Armenian ethnicity and Mormon faith and that she has a well-founded fear of future persecution if she were returned to that country. We have jurisdiction under 8 U.S.C. § 1105a(a) and, for the reasons given below, we grant Aveto-va’s petition. Eligibility for Asylum Under Section 1158(b) the Attorney General has discretion to grant asylum to aliens who qualify as statutory “refugees.” In turn, Section 1101(a)(42)(A) defines a “refugee” as an alien who is “unwilling or unable” to return to the alien’s home country “because of [past] persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” While “[a]n alien who establishes past persecution is presumed to have a well-founded fear of persecution .... [that] presumption may be rebutted where the conditions in the country have significantly changed” Pitcherskaia v. INS, 118 F.3d 641, 646 (9th Cir.1997) (citation omitted). Any alien who premises an asylum claim on a well-founded fear of persecution must demonstrate a subjectively genuine and objectively reasonable fear Arriaga-Barrientos v. INS, 987 F.2d 411, 413 (9th Cir.1991). While the subjective component is satisfied by “showing that the alien’s fear is genuine” id., the objective component requires “credible, direct, and specific evidence in the record that would support a reasonable fear of persecution” Singh v. INS, 134 F.3d 962, 966 (9th Cir.1998) (internal punctuation and source reference omitted). For a sustainable showing of past persecution, a “[p]etitioner must establish that the mistreatment she suffered ... was substantially more grievous in kind or degree than the general manifestation of hostility between ... competing ethnic and religious groups ...” id. at 967. But as to the requisite fear of future" }, { "docid": "22326518", "title": "", "text": "country to practice her Mormon religion and the lack of any harassment or problems because of her Armenian ethnicity.” If that is somehow intended to cast a cloud on the credibility of Avetova’s subjective fears (rather than reveal-big something about the IJ’s mindset), it is really undercut by the IJ’s observation that Avetova exhibited a \"high degree of fear and ... emotionalness” during her testimony. . Indeed, it appears that this is exactly what happened. As the United States’ own brief notes, the \"substantial Russian resentment of and hostility against all Caucasians ... has been exacerbated by the influx of refugees from the various ethnic conflicts.” . On that score, a converse determination that past persecution had been proved would not necessarily resolve a petitioner’s claim. In such event, the INS may still argue that current country conditions do not carry' the prospect that such past persecution will continue in the future (8’ C.F.R. § 208.13(b)(l)(i); and see, e.g., Reyes-Guerrero v. INS, 192 F.3d 1241, 1244-45 (9th Cir.1999)). . In that regard the BIA did not opine on whether the harassment of Armenians rises to the level of persecution. As for the IJ, though he labeled the treatment of Armenians summarized in the background materials as \"persecution or harassment,” his decision seems to rest on the mistaken notion that no government nexus with the \"persecution or harassment” was shown. Consequently, though Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996)(en banc) teaches that deference is owed to a BIA determination as to whether acts rise to the level of persecution, it appears that no such determination was made in this case. WARDLAW, Circuit Judge, dissenting: In finding Maya Avetova-Elisseva (“Avetova”) both eligible for asylum and entitled to withholding of deportation, the majority holds that there is “a pattern and practice of Armenian harassment in Russia,” [maj. op. at 1201-02 (emphasis added) ], and that this “harassment ... amounts to ‘persecution,’ ” [id. at 1202], I must respectfully dissent. I. 8 C.F.R. § 208.13(b)(2) provides that: In evaluating whether the applicant has sustained his or her burden of proving that he" }, { "docid": "22057813", "title": "", "text": "over the heads of two Afghan children playing in his front yard. She opened the door to her son Asil as he ran, bleeding, from a neo Nazi gang. She then watched as Asil became angry and frustrated and lost interest in school. Not surprisingly, Zakia testified credibly that these events caused constant fear and anxiety. The Mashiris did what they could — they bought steel-type drapes; they began walking Hadjir to school; Far-id tried to change careers. When nothing worked, the family understandably decided that they had no choice but to leave Germany. Cumulative Effect We need not and do not decide whether any one of Zakia’s experiences would be enough, standing alone, to establish past persecution. See Surita v. INS, 95 F.3d 814, 819 (9th Cir.1996) (“[W]hile a single incident, in some instances, may not rise to the level of persecution, the cumulative effect of several incidents may constitute persecution”). Viewed cumulatively, Za-kia’s evidence of a death threat, violent physical attacks against her husband and sons, a near-confrontation with a violent mob, vandalism, economic harm and emotional trauma compels a finding of past persecution. See Baballah, 367 F.3d at 1076-77 (holding that economic persecution, threats and attacks against the petitioner and his family compelled a finding of past persecution). B. Zakia testified that she believes she and her family were targeted because they were viewed as non-German foreigners. She also testified specifically about anti-foreigner slogans or symbols that accompanied nearly every violent incident the Mashiris witnessed or experienced. This evidence satisfies the requirement that Za-kia provide some direct or circumstantial evidence that she was persecuted on account of her race and nationality. See id. at 1077 (holding that petitioner’s own belief and persecutors’ use of the derogatory slur “goy” satisfied the “on account of’ prong). C. Zakia has also provided evidence that the government was unwilling or unable to control the anti-foreigner violence she and her family experienced at the hands of non-state actors. See Avetova-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir.2000) (“[Affirmative state action is not necessary to establish a well-founded fear of persecution if" }, { "docid": "22556585", "title": "", "text": "U.S. at 440, 107 S.Ct. 1207; Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001)); see also, e.g., Sael, 386 F.3d at 925. We have also repeatedly held that when petitioners are members of a group that is “significantly disfavored,” they must demonstrate an even lower level of individualized risk to prove a well-founded fear of future persecution. Sael, 386 F.3d at 927(“Because the record establishes that ethnic Chinese are significantly disfavored in Indonesia, Sael must demonstrate a ‘comparatively low’ level of individualized risk in order to prove that she has a well-founded fear of future persecution.” (quoting Hoxha v. Ashcroft, 319 F.3d 1179, 1184 (9th Cir.2003))); see also Mgoian v. INS, 184 F.3d 1029, 1035 n. 4 (9th Cir.1999); Singh, 94 F.3d at 1359; Kotasz v. INS, 31 F.3d 847, 853-54 (9th Cir.1994). In other words, when immigration petitioners are members of a “disfavored group,” “the less individualized the threat of persecution needs to be” because the threat they face is “more serious and widespread.” Sael, 386 F.3d at 925(eitations and quotations omitted). I believe that Petitioners easily satisfy this standard. The crux of Petitioners’ future persecution claim is that they fear their children will be subjected to the very harms and suffering that Petitioners suffered themselves as school-aged children in Egypt. There is no evidence in the record that discrimination against Copts in Egypt is any less widespread than it was before Petitioners fled to the United States. Like-wise, there is no evidence that Copts are any less likely to be the targets of violence and abuse than when Petitioners lived in Egypt. To the contrary, the evidence in the record and Petitioners’ credible testimony strongly suggest that Copts — Petitioners’ children, in particular — may be at greater risk to suffer violence and abuse and more frequently subject to discrimination than before Petitioners left Egypt. Of particular relevance to Petitioners’ claim that they fear that their children will be persecuted in Egypt, Petitioners’ credible testimony that the Egyptian school system has become increasingly hostile to Christians stands unrefuted by any other evidence. On this record, I would" }, { "docid": "22726872", "title": "", "text": "Id. Soldiers also visited Hartooni’s family’s home to ask about relatives who had fled to the United States, including Hartooni. Id. Although Hartoo-ni was never personally harmed, we held that these incidents, if believed, would be “enough to satisfy the requirement of a personal connection to the general persecution suffered by Christian Armenians in Iran.” Id. at 342; see also Hoxha, 319 F.3d at 1181, 1184 (holding that the petitioner demonstrated a “particularized risk” of persecution on account of his Albanian ethnicity with evidence that he was harassed and threatened, attacked on one occasion by a group of anti-Albanian Serbs, and ordered to appear for an “informative conversation” with authorities); Avetovar-Elis-seva, 213 F.3d at 1197, 1201-02 (holding that the petitioner established a “personalized threat” of future persecution on ac count of her Armenian ethnicity with evidence that she was “harassed and pushed by Russian officers” and could not get a job because of her ethnicity, and with evidence that an Armenian friend’s daughter was raped and beaten). As in Hartooni, Hoxha, and Avetova-Elisseva, Sael’s past experiences establish a sufficient personal connection to the general persecution directed against ethnic Chinese in Indonesia. Accordingly, we hold that Sael’s credible testimony compels the conclusion that she has a well-founded fear of future persecution. C. In rejecting Sael’s claim of a well-founded fear based on a “pattern or practice” of persecution, the BIA relied on two statements in the State Department’s 1999 Indonesia Country Report — one that the Indonesian government “officially promotes” ethnic tolerance and a second that “[r]a-cially motivated attacks against ethnic Chinese dropped sharply” in 1999. 1999 Indonesia Country Report § 5 (AR 223). Although we agree with the BIA that these statements could undermine an asylum applicant’s claim that there is a “pattern or practice” of persecution, Kotasz, 31 F.3d at 852, the statements do not diminish Sael’s claim of the general persecution of ethnic Chinese, sufficient to characterize their status as “disfavored” in Indonesia. The 1999 Indonesia Country Report confirms that ethnic Chinese are at least a “disfavored” minority group. It documents continued resentment, discrimination and ethnic violence; official" }, { "docid": "22326496", "title": "", "text": "Avetova’s testimony to be credible but, while granting her application for withholding of deporta tion from Azerbaijan, denied it as to Russia. Avetova filed a timely administrative appeal that the BIA denied on April 22, 1998. This petition followed. Avetova’s Fear of Future Persecution At issue is whether the record compels a finding that Avetova has a well-founded fear of future persecution because of her Armenian ethnicity. On that score the BIA simply stated: While the respondent testified to incidents of harm suffered by Mormons and Armenians in Russia, the record does not reflect that there exists in Russian a pattern or practice of persecution of persons on the basis of Armenian ethnicity or membership in the Mormon faith. Although the BIA’s opinion does not expressly state whether or not it was conducting a de novo review, its phrasing seems in part to suggest that it did conduct an independent review of the record. If that were the case, it would be the BIA’s decision that we review (see Vongsakdy v. INS, 171 F.3d 1203, 1206 (9th Cir.1999)). But the lack of analysis that the BIA opinion devoted to the issue at hand-its simple statement of a conclusion-also suggests that the BIA gave significant weight to the IJ’s findings. In light of that ambiguity, we will also look to the IJ’s oral decision as a guide to what lay behind the BIA’s conclusion. Any petitioner in Avetova’s position may create a rebuttable presumption of an objective fear of future persecution by demonstrating past persecution (see, e.g., Marcu v. INS, 147 F.3d 1078, 1081 (9th Cir.1998)). In support of her claim of past persecution because she is an Armenian, Avetova recites several incidents: (1) she was harassed and pushed by Russian officers because of her ethnicity; (2) she could not get a job even though she had a diploma because “there were no jobs for Armenians”; and (3) her friend’s daughter (who was Armenian) was raped and beaten by police officials. Although such experiences may certainly contribute to a petitioner’s state of mind (to satisfy the subjective component) and, if adequately" }, { "docid": "22326523", "title": "", "text": "of an entire group ... are systematically persecuted.” Kotasz, 31 F.3d at 852. Accordingly, I must conclude that substantial evidence supports the BIA’s finding that there does not “exist[ ] in Russia a pattern or practice of persecution of persons on the basis of Armenian ethnicity.” II. In Kotasz, we also noted that even if members of the disfavored groups are not threatened by systematic persecution of the group’s entire membership, the fact of group membership nonetheless places them at some risk. That risk can rise to the level required for establishing a well-founded fear of persecution either as a result of an individual’s activities in support of the group, or because the individual is a member of a certain element of the group that is itself at greater risk of persecution than is the membership of the group as a whole. Id. at 853; accord Mgoian, 184 F.3d at 1035 n. 4. The majority points to three incidents, incidents that it finds “do not amount to ‘persecution’ (that is, past persecution) within the meaning of the statute,” [maj. op. at 1201], that “coupled with the overall risks that Dr. Papazian had identified,” [id. at 1197], compel the granting of Avetova’s petition: “(1) [Avetova] was harassed and pushed by Russian officers because of her ethnicity; (2) [Avetova] could not get a job even though she had a diploma because ‘there were no jobs for Armenians’; (3) [Avetova’s] friend’s daughter (who was Armenian) was raped and beaten by police officials,” [id. at 1197-98 (footnote omitted) ]. The harassment identified by the majority “falls far short of the required showing needed to compel a finding of persecution.” Khourassany v. INS, 208 F.3d 1096, 1100 (9th Cir.2000) (holding that similar harassment was insufficient to establish past persecution or a well-founded fear of persecution); accord Singh v. INS, 134 F.3d 962, 967 (9th Cir.1998); Prasad v. INS, 47 F.3d 336, 339 (9th Cir.1995); Mendez-Efrain v. INS, 813 F.2d 279, 283 (9th Cir.1987). The majority’s assertion that Avetova “could not get a job” is belied by Avetova’s own testimony, which reveals that she worked in" }, { "docid": "22326497", "title": "", "text": "1206 (9th Cir.1999)). But the lack of analysis that the BIA opinion devoted to the issue at hand-its simple statement of a conclusion-also suggests that the BIA gave significant weight to the IJ’s findings. In light of that ambiguity, we will also look to the IJ’s oral decision as a guide to what lay behind the BIA’s conclusion. Any petitioner in Avetova’s position may create a rebuttable presumption of an objective fear of future persecution by demonstrating past persecution (see, e.g., Marcu v. INS, 147 F.3d 1078, 1081 (9th Cir.1998)). In support of her claim of past persecution because she is an Armenian, Avetova recites several incidents: (1) she was harassed and pushed by Russian officers because of her ethnicity; (2) she could not get a job even though she had a diploma because “there were no jobs for Armenians”; and (3) her friend’s daughter (who was Armenian) was raped and beaten by police officials. Although such experiences may certainly contribute to a petitioner’s state of mind (to satisfy the subjective component) and, if adequately supported, may also provide the required showing of an objectively reasonable fear of future persecution, we agree with the BIA that these incidents of hostility alone do not amount to “persecution” (that is, past persecution) within the meaning of the statute. In terms of the fear of future persecution, there is no question that Avetova satisfies the subjective component of the two-part test. As the IJ said after listening to and witnessing her testimony, Avetova demonstrates a “high degree of fear and ... emotionalness [sic].” Summarizing the “background materials” in the case, the IJ said that the objective evidence established this: [T]here is harassment, discrimination, and mistreatment of people of Armenian descent in Russia; in particular, Moscow, because of the problems that that city has encountered after the fall of the Soviet Union. ■ However, the background materials indicate that the inability of the police to sometimes deal with these problems, is not due to the fact that the police is [sic] participating in the persecution or harassment but, rather, because of lack of resources" }, { "docid": "22326509", "title": "", "text": "an established current pattern of persecution of members of the group to which she belongs carries the personalized threat of her future persecution (once again in the legal sense) if she were sent back to the place where such persecution is practiced. Suppose for example another Armenian expatriate from Russia whose past existence in that country had been wholly uneventful-such a person would fall into the category of what Dr. Papazian has referred to as “some Armenians in the Russian Federation [who] experience only mild discrimination” and who therefore face no demonstrable future threat justifying asylum in the United States. By contrast, Avetova’s past unpleasant experiences cou pled with the overall risks that Dr. Papazi-an had identified without contradiction totally justify his “affirmation] that she would face a strong likelihood of persecution, possibly resulting in physical harm or death, if she were forced to return to the Russian Federation” (emphasis added). This analysis meshes seamlessly not only with the post-Notasz statement in Mgoian quoted earlier in this opinion but also with Mgoian’s alternative explication (citations to Kotasz itself omitted) at 184 F.3d at 1035 n. 4: [I]f the applicant is a member of a “disfavored” group, but the group is not subject to systematic persecution, this court will look to (1) the risk level of membership in the group (i.e., the extent and the severity of persecution suffered by the group) and (2) the alien’s individual risk level (i.e., whether the alien has a special role in the group or is more likely to come to the attention of the persecutors making him a more likely target for persecution). The relationship between these two factors is corre-lational; that is to say, the more serious and widespread the threat of persecution to the group, the less individualized the threat of persecution needs to be. We therefore do not view Kotasz, as does the dissent, as casting any cloud on the conclusions reached here. In short, there is only scant evidence to cast doubt on the possibility of actual governmental support of harassment that would pose a “strong likelihood” of physical harm" }, { "docid": "22326527", "title": "", "text": "Avetova’s petition for review. Therefore, I dissent. . The majority states that 8 C.F.R. § 208.13(b)(2) and \"its explication in Kotasz v. INS ” are \"inapplicable] ... to defeat Ave-tova's claim” because \"Avetova’s past experiences and Dr. Papazian’s express affirmance as to her personal future risk plainly\" show that \"she would be singled out individually for persecution.” [Maj. op. at 1201 (internal quotation marks omitted)]; see infra Part II (finding that Avetova has not made the requisite showing of individualized persecution). This heavy reliance on Avetova’s \"past experiences” is a bit inconsistent with-the majority's earlier holding that these same past experiences \"do not amount to ‘persecution’ (that is, past persecution) within the meaning of the statute.” [Maj. op. at 1197]. As for Dr. Pa-pazian’s \"express affirmance,” it is of course true that Dr. Papazian concludes that Avetova \"would face a strong likelihood of persecution ... if she were forced to return to the Russian Federation.” In his affidavit, however. Dr. Papazian does not focus on Avetova’s individual circumstances, but rather discusses what he views as a “pattern of persecution experienced by Armenians ... in the Russian Federation,” (emphasis added). Other parts of the majority's opinion are not consistent with its express disavowal of any reliance on 8 C.F.R. § 208.13(b)(2) and its \" ‘pattern or practice' requirement.” [Id. at 1201]. For example, at one point, the majority states that, for Avetova to succeed on her .petition for review, “she merely has to demonstrate that Armenians are being systematically persecuted,” [id. at 1198 n. 10 (citing Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir.1999))]. Systematic persecution is a requirement only of pattern-or-practice claims, which are governed by 8 C.F.R. § 208.13(b)(2). See Kotasz, 31 F.3d at 852-53. In addition, the section of Mgoian v. INS cited favorably by the majority rests entirely on 8 C.F.R. § 208.13(b)(2) and Kotasz. [See maj. op. at 1198 n.10 (citing Mgoian, 184 F.3d. at 1035)]. Finally, at several places in its opinion, the majority appears to conclude that there is \"an established current pattern of persecution” against Armenians in Russia. [Id. at 1201]; [accord" }, { "docid": "22326508", "title": "", "text": "to her personal future risk plainly satisfy the quoted standard. 2. As for the “pattern or practice” alternative itself, we do not view it as requiring ,a showing • of universality-a showing that every individual in the vulnerable group must face such serious persecution. Here the evidence of substantial group persecution (again reflected in Dr. Papazian’s affidavit), coupled with Avetova’s special circumstances (including her past individual experiences), suffices. Under those circumstances we cannot justify subjecting Avetova to the serious gamble that she might perhaps escape the fate that the expert opinion evaluates as a “strong likelihood.” In both of those respects, we believe that it is entirely consistent to determine, on the one hand that a petitioner’s past harassment during a closed time period had not reached the legal level of “past persecution,” so as to defeat relief on the ground of that past persecution alone, and yet to determine that although such past experiences did not themselves reach that legal level, they are sufficiently probative of a singling out of the petitioner so that an established current pattern of persecution of members of the group to which she belongs carries the personalized threat of her future persecution (once again in the legal sense) if she were sent back to the place where such persecution is practiced. Suppose for example another Armenian expatriate from Russia whose past existence in that country had been wholly uneventful-such a person would fall into the category of what Dr. Papazian has referred to as “some Armenians in the Russian Federation [who] experience only mild discrimination” and who therefore face no demonstrable future threat justifying asylum in the United States. By contrast, Avetova’s past unpleasant experiences cou pled with the overall risks that Dr. Papazi-an had identified without contradiction totally justify his “affirmation] that she would face a strong likelihood of persecution, possibly resulting in physical harm or death, if she were forced to return to the Russian Federation” (emphasis added). This analysis meshes seamlessly not only with the post-Notasz statement in Mgoian quoted earlier in this opinion but also with Mgoian’s alternative explication (citations" }, { "docid": "22326528", "title": "", "text": "a “pattern of persecution experienced by Armenians ... in the Russian Federation,” (emphasis added). Other parts of the majority's opinion are not consistent with its express disavowal of any reliance on 8 C.F.R. § 208.13(b)(2) and its \" ‘pattern or practice' requirement.” [Id. at 1201]. For example, at one point, the majority states that, for Avetova to succeed on her .petition for review, “she merely has to demonstrate that Armenians are being systematically persecuted,” [id. at 1198 n. 10 (citing Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir.1999))]. Systematic persecution is a requirement only of pattern-or-practice claims, which are governed by 8 C.F.R. § 208.13(b)(2). See Kotasz, 31 F.3d at 852-53. In addition, the section of Mgoian v. INS cited favorably by the majority rests entirely on 8 C.F.R. § 208.13(b)(2) and Kotasz. [See maj. op. at 1198 n.10 (citing Mgoian, 184 F.3d. at 1035)]. Finally, at several places in its opinion, the majority appears to conclude that there is \"an established current pattern of persecution” against Armenians in Russia. [Id. at 1201]; [accord id. at 1201 (stating that there is \"a pattern and practice of Armenian harassment in Russia”) ]; [id. at 1202 (stating that “the detention, intimidation and beatings of Armenians because of their ethnicity” amounts to persecution) ]. . The record also does not compel the conclusion that there is systematic persecution against Mormons in Russia. As the majority does not address this argument, [see maj. op. at 1196-97 n.7], neither will I. . The majority correctly notes that a successful pattern-or-practice claim does not require \"a showing of universality-a showing that every individual in the vulnerable group must face such serious persecution.'' [Maj. op. at 1201]; see Makonnen v. INS, 44 F.3d 1378, 1383 (8th Cir.1995) (holding that \"to require a showing of persecution of all the members of the applicant’s group represents an unreasonable reading of the 'pattern or practice' language”). A successful pattern-or-practice claim, however, does require a showing of \"systematic persecution,” Kotasz, 31 F.3d at 853; accord Makonnen, 44 F.3d at 1383. Avetova has not made such a showing in this case." }, { "docid": "22326494", "title": "", "text": "persecution, Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir.1999)(internal quotation marks, punctuation and citations omitted) teaches: [T]he applicant is not required to show that she would be singled out individually for persecution if there is a pattern or practice of persecution of groups of persons similarly situated and she can establish her own inclusion in the group such that her fear of persecution upon return is reasonable. Thus, if [an applicant] is able to show a “pattern or practice” of persecution against a group of which she is a member, then she will be eligible for asylum. Finally, affirmative state action is not necessary to establish a well-founded fear of persecution if the government “is unwilling or unable to control those elements of its society responsible for targeting” a particular class of individuals id. at 1036. Standard of Review Adverse BIA asylum decisions are upheld if supported by “substantial evidence” (see Singh, 134 F.3d at 966). Under that deferential standard “a petitioner contending that the Board’s findings are erroneous must establish that the evidence not only supports that conclusion, but compels it” Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.l995)(internal quotation marks omitted and emphasis in original). Though limited to reviewing the administrative record, we consider the record in its entirety, including evidence that contradicts the BIA’s findings Velarde v. INS, 140 F.3d 1305, 1309 (9th Cir.1998). Background Avetova was born in Baku, Azerbaijan. In 1990 she and her family fled Baku to escape the Azeri campaign to cleanse Azerbaijan of Armenians and Russians. With the help of Soviet troops they crossed the Caspian Sea and were ultimately evacuated to Moscow. But Russia proved to be only slightly more hospitable to Avetova, for she and her friends were victims of numerous incidents of harassment due to their Armenian ethnicity and Mormon faith. In December 1993 Avetova entered the United States legally to be with her ill sister. In April 1996, one month after her visa expired, she conceded deportability but applied for asylum and withholding of deportation. On October 30, 1996 the IJ, in an oral decision, found" }, { "docid": "22274692", "title": "", "text": "explain the decision in an opinion, denied Kumar the right to the full and fair hearing required by the Fifth Amendment Due Process Clause. The prejudice caused by the BIA is exacerbated in a petition such as Kumar’s, where the law and the facts are not clear. This is a very close case, both legally and factually. We have articulated varying legal standards on the degree of individualized persecution a petitioner must show to merit relief. Compare Avetova-Elisseva v. INS, 213 F.3d 1192, 1196(9th Cir.2000) (finding that “[f]or a sustainable showing of past persecution, a ‘[petitioner must establish that the mistreatment she suf fered ... was substantially more grievous in kind or degree than the general manifestation of hostility between ... competing ethnic and religious groups’ ”) (second alteration in original) (quoting Singh v. INS, 134 F.3d 962, 967 (9th Cir.1998)), with Knezevic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir.2004) (holding that, in contrast to the proof required to show a well-founded fear of future persecution, “proof of particularized persecution is not- required to establish past persecution”). The cumulative effect of several incidents may constitute persecution, even if no single incident would itself rise to the level of persecution. In Chand v. INS, we stated, “When considering an asylum claim, we consider cumulatively the harm an applicant has- suffered. An applicant may suffer persecution because of the cumulative effect of several incidents, no one of which rises to the level of persecution.” 222 F.3d 1066, 1074 (9th Cir.2000) (finding persecution where Indo-Fijian was physically abused by Fijian soldiers, robbed multiple times, received no police assistance, and endured other crimes such as burglary); see also Narayan v. Ashcroft, 384 F.3d 1065, 1068 (9th Cir.2004) (holding violence due to the 1987 military coup, the denial of medical treatment, repeated burglaries of the petitioner’s home, denial of police assistance, and other physical violence compelled a finding of persecution against an Indo-Fijian petitioner); Prasad v. INS, 101 F.3d 614, 617 (9th Cir.1996) (finding persecution where Indo-Fijian member of the Labour Party was jailed twice for multiple days, beaten, and subjected to sadistic and" }, { "docid": "22326514", "title": "", "text": "exists, we need not resolve the question whether such a fear also exists because of Avetova's Mormon faith. It is worth adding, though, that Avetova’s \"outsider” status as an Armenian can only be worsened by her membership in a second minority group (this one religious)-and the same expert witness who directly supports the required objective component as to Avetova’s ethnicity, the reasonableness of her fear of persecution as an Armenian, also provides like support regarding her Mormon faith. . Specifically, Avetova was pushed around and was asked for her internal passport, and when it was discovered that she was Armenian she was told that the soldiers were \"sick and tired” of \"all these invaders.” . This opinion also consistently employs the present tense to describe the situation in Russia. We recognize of course that because Avetova’s hearing took place in 1996, the situation may since have changed. While it is unfortunate that the law’s processes cause this decision to be rendered more than three years after Avetova's initial hearing, we must consider the facts in the administrative record as if they speak to the current situation. Indeed, any remand in such circumstances would be extremely unfair to litigants, potentially triggering multiple determinations and repeated appeals as to whether there is any \"current” persecution-a sort of Zeno’s Paradox in which the arrow could never reach the target. This differs from a determination of past persecution, where remand is necessary to determine whether conditions in a country have changed. . Because there is no question that Avetova is Armenian, she merely has to demonstrate that Armenians are being systematically persecuted (see, e.g., Mgoian, 184 F.3d at 1035). . That report also says that the \"action or inaction [of the police] appears more closely tied to the seriousness of the complaint and the likelihood that the perpetrator will be apprehended, than to the ethnicity, religious views, or political affiliations of the victim.” But that conclusion is called into question by the State Department’s later country condition report discussed below. . For example, in Singh v. INS, 94 F.3d 1353, 1360 (9th Cir.1996) an" }, { "docid": "22326519", "title": "", "text": "not opine on whether the harassment of Armenians rises to the level of persecution. As for the IJ, though he labeled the treatment of Armenians summarized in the background materials as \"persecution or harassment,” his decision seems to rest on the mistaken notion that no government nexus with the \"persecution or harassment” was shown. Consequently, though Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996)(en banc) teaches that deference is owed to a BIA determination as to whether acts rise to the level of persecution, it appears that no such determination was made in this case. WARDLAW, Circuit Judge, dissenting: In finding Maya Avetova-Elisseva (“Avetova”) both eligible for asylum and entitled to withholding of deportation, the majority holds that there is “a pattern and practice of Armenian harassment in Russia,” [maj. op. at 1201-02 (emphasis added) ], and that this “harassment ... amounts to ‘persecution,’ ” [id. at 1202], I must respectfully dissent. I. 8 C.F.R. § 208.13(b)(2) provides that: In evaluating whether the applicant has sustained his or her burden of proving that he or she has a well-founded fear of persecution, the asylum officer or immigration judge shall not require the applicant to provide evidence that he or she would be singled out individually for persecution if: (i) The applicant establishes that there is a pattern or practice in his or her country of nationality or last habitual residence of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion; and (ii) The applicant establishes his or her own inclusion in and identification with such group of persons such that his or her fear of persecution upon return is reasonable. 8 C.F.R. § 208.13(b)(2); accord id. § 208.16(b)(3) (withholding of deportation). In Kotasz v. INS, 31 F.3d 847 (9th Cir.1994), we explained this regulation to mean “that where members of a given group are systematically persecuted ... proof of group membership suffices to establish a ‘well-founded fear.’” Id. at 852. As an example, we pointed to “the systematic attempt to annihilate the" } ]

[ { "docid": "16422960", "title": "", "text": "Rule 4(a)(1)(B), when the United States is a party, a notice of appeal must be filed “within 60 days after the judgment or order appealed from is entered.” Rule 4(a)(4) provides, however, that when a party files certain specified motions, the time to file an appeal runs from the district court’s entry of the order disposing of the motion. Ackerland contends that Rule 4(a)(4) is inapplicable, because the government’s “motion to reconsider” is not one of the tolling motions listed in the rule. We conclude that the government timely filed its notice of appeal. Although we have discouraged the use of a self-styled motion to reconsider “that is not described by any particular rule of federal civil procedure,” Sanders v. Clemco Indus., 862 F.2d 161, 168 (8th Cir.1988), we typically construe such a filing as a Rule 59(e) motion to alter or amend the judgment or as a Rule 60(b) motion for relief from judgment. Auto Servs. Co. v. KPMG, LLP, 537 F.3d 853, 855 (8th Cir.2008). While it is sometimes difficult to discern whether a motion to reconsider arises under Rule 59(e) or Rule 60(b), see Sanders, 862 F.2d at 168 & n. 11, the distinction makes no difference here. Under the current version of Rule 4(a)(4), motions filed under both rules toll the running of Rule 4(a)(1)(B)’s sixty-day period until the district court enters an order disposing of the motion. Fed. R.App. P. 4(a)(4)(A). Thus, the government had sixty days from March 9, 2010 — the day the district court denied the motion to reconsider — to file its notice of appeal. The notice filed on April 15 was timely. Ackerland relies on United States v. Whitford, 758 F.2d 329 (8th Cir.1985) and United States v. Austin, 217 F.3d 595 (8th Cir.2000), to show that the appeal is untimely. In both cases, this court held that motions to reconsider did not extend the time for filing a notice of appeal under Rule 4, but neither decision is controlling here. Whitford is inapposite because this court construed the motion at issue as a Rule 60(b) motion, and under the" } ]

[ { "docid": "6183705", "title": "", "text": "not ask the city council to review his termination. Instead, he filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that defendants terminated his employment based on his race. The EEOC issued a right to sue letter on February 28, 1996. Roark then filed this suit under Title VII of the Civil Rights Act of 1964, alleging retaliation, discrimination during his employment, and discrimination in connection with his termination. The complaint also alleged causes of action under 42 U.S.C. §§ 1981 and 1983, claiming violations of the First, Thirteenth, and Fourteenth Amendments. Defendants filed a motion for judgment on the pleadings under Rule 12(c) of Federal Rules of Civil Procedure, together with a motion for summary judgment pursuant to Rule 56(c). The district court granted the motion for judgment on the pleadings, disposing of three of the claims, and granted the motion for summary judgment on the remaining claims. Roark then moved the district court to reconsider and set aside the judgment under Rules 59(e) and 60(b). It is from the denial of that motion that Roark appeals. II. A district court has broad discretion in determining whether to grant a motion for postjudgment relief, and we will not reverse absent a clear abuse of discretion. See Innovative Home Health Care v. P.T.-O.T. Associates, 141 F.3d 1284, 1286 (8th Cir.1998) (indicating that we review a district court’s denial of a Rule 59(e) motion for an abuse of discretion); Cowan v. Strafford R-VI Sch. Dist., 140 F.3d 1153, 1159 (8th Cir.1998) (applying the abuse of discretion standard when reviewing the denial of a Rule 60(b) motion). “An abuse of discretion will only be found if the district court’s judgment was based on clearly erroneous factual findings or erroneous legal conclusions.” Mathenia v. Delo, 99 F.3d 1476, 1480 (8th Cir.1996), cert. denied, 521 U.S. 1123, 117 S.Ct. 2518, 138 L.Ed.2d 1020 (1997). Our determination of whether the district court abused its discretion in denying Roark’s postjudgment motion necessarily entails a review of the district court’s grant of judgment on the pleadings and summary judgment. See id. The district court properly" }, { "docid": "22366665", "title": "", "text": "late-filed, the district court lacked jurisdiction to consider it; consequently, we lack the power to review that court’s decision, which is effectively a nullity. Garrett v. United States, 195 F.3d 1032, 1033-34 (8th Cir.1999). 2 Unlike the Rule 59(e) motion, Arnold’s Rule 60(b) motion was timely filed in the district court. See Fed.R.Civ.P. 60(b) (allowing a party to file such a motion within “a reasonable time,” or within one year, depending on the type of motion). We may thus entertain his appeal solely on this point. Ill We review a district court’s denial of relief under Fed.R.Civ.P. 60(b) only for abuse of discretion. Sanders, 862 F.2d at 169 (citing United States v. Young, 806 F.2d 805, 806 (8th Cir.1986) (per curiam)). Because Rule- 60(b) cannot substitute for an appeal, Sanders, 862 F.2d at 170 & n. 16, an appeal from the denial of a Rule 60(b) motion does not present the underlying judgment for our review. Id. at 169-70. We conclude the district court did not abuse its discretion in this case. Arnold’s Rule 60(b) motion largely reasserted contentions made in earlier motions. See Broadway v. Norris, 193 F.3d 987, 990 (8th Cir.1999) (noting that Rule 60(b) is “not a vehicle for simple reargument on the merits”). In addition, Arnold failed to demonstrate exceptional circumstances warranting post-judgment relief. See Brooks v. Ferguson-Florissant Sch. Dist., 113 F.3d 903, 904 (8th Cir.1997) (requiring a Rule 60(b) movant to demonstrate exceptional circumstances to justify relief). We therefore affirm the order of the district court. See 8th Cir.R. 47B(4). . The judgment was formally entered into the dockel on December 6, 1999. . We may not extend Arnold’s filing time by three days for mail service, see Fed.RXiv.P. 6(e), because the ten-day filing period prescribed in Rule 59(e) runs from the entry of judgment, rather than its service upon the parties. FHC Equities, L.L.C. v. MBL Life Assurance Corp., 188 F.3d 678, 681-82 (6th Cir.1999) (collecting cases). . We grant Arnold's motion to file a reply brief out of time." }, { "docid": "6883829", "title": "", "text": "reason why the identical ground for dismissal under section 1915A(b)(2) should be treated differently. The other circuits to have addressed the question hold that review is indeed plenary, Liner v. Goord, 196 F.3d 132 (2d Cir.1999); Cooper v. Schriro, 189 F.3d 781, 783-84 (8th Cir.1999) (per curiam); Ruiz v. United States, 160 F.3d 273, 274 (5th Cir.1998) (per curiam); Davis v. District of Columbia, 158 F.3d 1342, 1348 (D.C.Cir.1998); McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997). We leave to future cases what the standard of review should be if the district judge bases dismissal on one of the other grounds in section 1915A — that the complaint is “frivolous” or “malicious” or (§ 1915A(b)(2)) that it seeks monetary relief from someone who has immunity. Since the determination in any of these cases is based solely on what the complaint says, and thus involves no factfinding, and is thus a determination of whether the case has any possible merit, appellate review may also be plenary, as suggested in id. at 604. But that we need not decide, and Cooter & Gell v. Hartman Carp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990), and Mars Steel Corp. v. Continental Bank N.A., 880 F.2d 928 (7th Cir.1989) (en banc), tug the other way. For the reasons stated in the accompanying order, the judgment is affirmed in part and reversed in part, and remanded. UNPUBLISHED ORDER Not to be cited per Circuit Rule 53 No. 98-2537. UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT. Submitted Oct. 13, 1999. Decided Nov. 24, 1999. On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, Wayne R. Andersen, Judge. Before POSNER, Chief Judge, RIPPLE and KANNE, Circuit Judges. ORDER In January 1998, Dwayne Sanders, proceeding pro se, filed a civil rights complaint under 42 U.S.C. § 1983, complaining about treatment he received when he was a pretrial detainee at the Cook County Jail. The district court dismissed Sanders’ complaint pursuant to 42 U.S.C. § 1915A. Because some of the allegations in Sanders’ complaint are sufficient to" }, { "docid": "22280326", "title": "", "text": "06-3007, the district court also expressed the view that Owens’s amended complaint was subject to dismissal under 28 U.S.C. § 1915A, because it was frivolous or malicious or failed to state a claim. Reading the original complaint and amendments together as we believe Owens intended, we disagree. See Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir.1999) (per curiam) (liberally construing original complaint, after observing that amended complaint standing alone failed to state a claim but that plaintiff clearly intended to have both complaints read together). At least some of Owens’s allegations appear to state claims against some defendants. See, e.g., Cody v. Weber, 256 F.3d 764, 771 (8th Cir.2001) (conduct undertaken in retaliation for inmate’s exercise of constitutionally protected right is actionable, even if conduct would have been proper if motivated by different reason); Powells v. Minnehaha, County Sheriff Dep’t, 198 F.3d 711, 712 (8th Cir.1999) (per curiam) (inmate stated constitutional claim by alleging officers opened his legal mail when he was not present). While in the lawsuit underlying appeal No. 07-1056 Owens raised new claims about being placed in danger, it appears he did so in order to qualify under section 1915(g)’s imminent-danger exception for purposes of pursuing the claims he raised in the first lawsuit. We thus recommend that, on remand, the district court consolidate the two lawsuits. Given Owens’s transfer to another prison, we agree with the district court’s implicit finding that his requests for injunctive relief arising from any conditions-of-confinement claims are now moot. See Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir.1985) (claim for injunctive relief to improve prison conditions was moot when inmate was transferred and no longer subject to those conditions). Accordingly, we reverse both dismissals and remand for further proceedings. We deny Owens’s motion for a status hearing (No. 06-3007), and his motions setting forth further information for the court to consider (No. 07-1056)." }, { "docid": "22601938", "title": "", "text": "an administrative employee of the detoxification center, then administered to Moore a breathalyzer test, which indicated he was not legally intoxicated. Hawk “attp[m]pted to hide the test result,” refused to allow Moore to make a telephone call, and placed him “in some type of solitary confinement room and locked the door.” The item Sims tested turned out to be cocaine. At the direction of defendant Wilhelm, Sims’s supervisor, Sims returned to the detoxification center, transported Moore to the county jail, and charged him with possession of a controlled substance. Moore ultimately pleaded no contest to the charge. The District Court dismissed all but one of Moore’s claims as being barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). The Court did not initially dismiss Moore’s claim that his due-process rights were violated because it concluded that claim did not necessarily call into question his criminal conviction. Moore filed an objection to the Court’s dismissal of his claims, and also filed an amended complaint. Construing Moore’s objection as a motion under Rule 60(b), the Court denied it. The Court then dismissed the amended complaint with prejudice under section 1915(e)(2)(B)(ii), concluding Moore failed to state a claim for violation of his due-process rights. Under section 1915(e)(2)(B)(ii), a District Court shall dismiss a complaint filed in forma pauperis “at any time if ... the action ... fails to state a claim on which relief may be granted.” After our de novo review, cf. Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir.1999) (per curiam) (28 U.S.C. § 1915A dismissal reviewed de novo), we conclude that Moore’s claim that he was unlawfully seized should not have been dismissed as it was not barred by Heck. In Heck, the Supreme Court held that a section 1983 action should be dismissed if a judgment “would necessarily imply the invalidity of [a plaintiffs] conviction or sentence,” unless the conviction or sentence was reversed, expunged, declared invalid, or called into question. The Court noted, however, that some section 1983 actions, “even if successful, will not demonstrate the invalidity of any outstanding criminal" }, { "docid": "6883828", "title": "", "text": "POSNER, Chief Judge. A provision added to the Judicial Code by the Prison Litigation Reform Act of 1996 requires the district judge to screen prisoner complaints at the earliest opportunity and dismiss the complaint, in whole or part, if (so far as bears directly on this case) it “fails to state a claim upon which relief can be granted.” 28 U.S.C. § 1915A(b)(1). The question, unresolved in this circuit, see Mathis v. New York Life Ins. Co., 133 F.3d 546, 547 (7th Cir.1998), is what the standard of appellate review of such a dismissal is. In the present case, the merits of which are being decided in an unpublished order entered today, the district judge held that the complaint indeed failed to state a claim. It is plain that the review of such a determination should be plenary, that is, without according any deference to the district judge’s determination. That is how an ordinary Rule 12(b)(6) dismissal is reviewed, e.g., Ledford v. Sullivan, 105 F.3d 354, 356 (7th Cir.1997), and we cannot think of any reason why the identical ground for dismissal under section 1915A(b)(2) should be treated differently. The other circuits to have addressed the question hold that review is indeed plenary, Liner v. Goord, 196 F.3d 132 (2d Cir.1999); Cooper v. Schriro, 189 F.3d 781, 783-84 (8th Cir.1999) (per curiam); Ruiz v. United States, 160 F.3d 273, 274 (5th Cir.1998) (per curiam); Davis v. District of Columbia, 158 F.3d 1342, 1348 (D.C.Cir.1998); McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997). We leave to future cases what the standard of review should be if the district judge bases dismissal on one of the other grounds in section 1915A — that the complaint is “frivolous” or “malicious” or (§ 1915A(b)(2)) that it seeks monetary relief from someone who has immunity. Since the determination in any of these cases is based solely on what the complaint says, and thus involves no factfinding, and is thus a determination of whether the case has any possible merit, appellate review may also be plenary, as suggested in id. at 604. But that we" }, { "docid": "23525172", "title": "", "text": "affirmed. See United States v. Lambros, No. 97-1553, 1997 WL 538013 (8th Cir. Sept.2, 1997) (unpublished per curiam), cert. denied, 522 U.S. 1065, 118 S.Ct. 731, 139 L.Ed.2d 669 (1998). Two subsequent § 2255 motions filed by Lam-bros were dismissed by the district court because this court had not authorized their filing. See 28 U.S.C. §§ 2255 and 2244. In 2001, Lambros filed a Rule 60(b) motion to vacate all of the previous judgments of the district court related to the denial of habeas relief. Construing the motion as a successive application for § 2255 relief, the district court denied relief because Lambros had not received authorization to file another § 2255 motion. This court affirmed. See United States v. Lambros, 40 Fed.Appx. 316 (8th Cir.2002) (unpublished per curiam), cert. denied, 537 U.S. 1195, 123 S.Ct. 1255, 154 L.Ed.2d 1032 (2003). Lambros filed a Rule 60(b) motion asking the district court to vacate its 2001 order denying his first Rule 60(b) motion. He argued that the court had improperly construed that previous motion as a successive § 2255 application. The district court denied the second Rule 60(b) motion, and Lambros then filed a Rule 59(e) motion to alter or amend the judgment. The district court denied the Rule 59(e) motion, and Lambros filed the present appeal. Initially, we note that our appellate jurisdiction depends in part on whether a petitioner needs a certificate of appealability to appeal the denial of a Rule 60(b) motion in a habeas proceeding. See United States v. Vargas, 393 F.3d 172, 174 (D.C.Cir.2004). Of course, a certificate is required to appeal from “the final order in a proceeding under section 2255.” 28 U.S.C. § 2253(c)(1)(B). Further, an order denying a Rule 60(b) motion is a final order for purposes of appeal. Mohammed v. Sullivan, 866 F.2d 258, 260 (8th Cir.1989). This court has implicitly recognized in published opinions that the certifícate requirement applies to an appeal from the denial of a Rule 60(b) motion seeking to reopen a habeas case. See Jones v. Roper, 311 F.3d 923, 924 (8th Cir.2002) (per curiam) (concluding district court’s" }, { "docid": "22557788", "title": "", "text": "error could have been corrected by appeal of that judgment. Townsend v. Terminal Packaging Co., 853 F.2d 623, 624 (8th Cir.1988) (per curiam); Chester v. St. Louis Hous. Auth., 820 F.2d 259, 260 (8th Cir.) (per curiam), cert. denied, — U.S. -, 108 S.Ct. 236, 98 L.Ed.2d 195 (1987). The rule specifically provides, however, that even a timely motion under it “does not affect the finality of a judgment or suspend its operation.” Fed.R.Civ.P. 60(b). Thus, unlike a Rule 59(e) motion, a Rule 60(b) motion does not toll the time for appeal of the judgment. Fox v. Brewer, 620 F.2d 177, 179 (8th Cir. 1980); Cline v. Hoogland, 518 F.2d 776, 778 (8th Cir.1975). Moreover, an appeal from the denial of a motion made under Rule 60(b) does not raise the underlying judgment for review; it presents the appellate court only with the question of whether the trial court abused its discretion in ruling on the motion. Browder v. Director, Dep’t of Corrections, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 560 n. 7, 54 L.Ed.2d 521 (1978); Sutherland v. ITT Continental Baking Co., 710 F.2d 473, 475 (8th Cir.1983); Fox, 620 F.2d at 179-80; Lang v. Wyrick, 590 F.2d 257, 259 (8th Cir.1978) (per curiam). Under these standards, Sanders’ appeal fails regardless of whether we construe his motion as arising under Rule 59(e) or under Rule 60(b), and in particular under Rule 60(b)(1). If we consider the motion as one for an amended judgment under Rule 59(e), the appeal fails for want of jurisdiction. When Sanders made his motion more than ten days after judgment, the district court’s denial of relief could rest on its lack of jurisdiction. Moreover, when the appellant filed his appeal more than thirty days after entry of judgment (in this case the Memorandum and Order for summary judgment), the appeal came too late to invoke appellate review. See Spinar, 796 F.2d at 1062-63; supra note 2. Thus, we must deny appellant any relief on this appeal if his motion arose under Rule 59(e). Turning now to the possible contention that the motion for" }, { "docid": "23646075", "title": "", "text": "PER CURIAM. Christopher Ray LeGear, an Iowa inmate, appeals the magistrate judge’s denial of his motion to reopen his previously-dismissed 42 U.S.C. § 1983 case based on newly-discovered evidence. We dismiss the appeal for lack of jurisdiction. LeGear claimed that prison officials violated his due process and Eighth Amendment rights by keeping him in administrative segregation without giving him specific reasons or meaningful reviews. The district court dismissed his complaint as frivolous pursuant to 28 U.S.C. § 1915(d) and denied his motion for reconsideration. LeGear appealed the order, and this court affirmed. Before we affirmed, however, LeGear moved the district court to reopen the case, alleging newly-discovered evidence. He also filed an “Application for Consideration of Special Discovery Request” and a motion for appointment of counsel. The district court referred the matter to the magistrate judge, who denied all three motions without explanation. LeGear appealed. A Federal Rule of Civil Procedure 60(b)(2) motion may be referred to a magistrate judge under 28 U.S.C. § 636(b)(3), which allows the district court to assign to the magistrate judge “additional duties ... not inconsistent with the Constitution and laws of the United States.” See McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 925 F.2d 853, 856 (5th Cir.1991) (motion may be referred for proposed recommendations and findings). A magistrate judge’s decision issued pursuant to section 636(b)(3) is not a final order; initial review rests with the district court. Gleason v. Secretary of Health & Human Servs., 777 F.2d 1324, 1324 (8th Cir.1985); Loewen-America, Inc. v. Advance Distrib. Co., 673 F.2d 219, 220 (8th Cir.1982). A magistrate judge’s decision is a final order only if the parties have explicitly and unambiguously consented to the magistrate judge’s jurisdiction under section 636(c). See Henry v. Tri-Services, Inc., 33 F.3d 931, 933 (8th Cir.1994). Because the district court did not issue an order on the motion and the record does not contain a document showing that the parties consented to the magistrate judge’s jurisdiction, we vacate the order and dismiss the appeal for lack of jurisdiction. . The Honorable John A. Jarvey, United States Magistrate Judge for" }, { "docid": "22284265", "title": "", "text": "retain jurisdiction under 28 U.S.C. § 1367---- As previously noted in its memorandum opinion, the Court has broad discretion to dismiss state law claims and counterclaims over which it has only supplemental jurisdiction if the Court has dismissed all claims over which the Court had original jurisdiction which has occurred in this case. The district court also noted that the parties’ submissions regarding the plaintiffs’ motion for rehearing raised “somewhat novel and complex issues of South Dakota law” regarding whether application of the indemnification clause under the facts and circumstances presented by this ease violated South Dakota law and whether the defendants could now also seek indemnification from the plaintiff corporation. The district court stated that determination of such issues would require further briefing and possible discovery. The district court then amended its prior judgment by dismissing the defendants’ counterclaims for indemnification without prejudice. Defendants Kirsch and Redden appeal the amended judgment. II. Standard of Review Although the plaintiffs brought their motion for rehearing or relief from judgment pursuant to Fed.R.Civ.P. 59(a) and 60(b)(6), the plaintiffs properly concede the motion was actually an improperly styled Fed. R.Civ.P. 59(e) motion. Norman v. Arkansas Dep’t of Educ., 79 F.3d 748, 750 (8th Cir. 1996) (any motion questioning the correctness of a judgment is functionally a Fed. R.Civ.P. 59(e) motion, regardless of how the motion is styled); BBCA, Inc. v. United States, 954 F.2d 1429, 1432 (8th Cir.) (motion seeking substantive change in judgment was Rule 59(e) motion; substance, rather than form, of motion controls), cert. denied, 506 U.S. 866, 113 S.Ct. 192, 121 L.Ed.2d 136 (1992). “‘A district court has broad discretion in determining whether to grant a [Fed. R.Civ.P. 59(e) ] motion to alter or amend judgment, and this court will not reverse absent a clear abuse of discretion.’ ” Global Network Techs., Inc. v. Regional Airport Autk, 122 F.3d 661, 665 (8th Cir.1997) (quoting Hagerman v. Yukon Energy Corp., 839 F.2d 407, 413 (8th Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 63, 102 L.Ed.2d 40 (1988)). “ ‘An abuse of discretion will only be found if the district court’s" }, { "docid": "12538125", "title": "", "text": "PER CURIAM. Orlando Townsend appeals pro se from the order of the District Court for the District of Nebraska dismissing as untimely his motion for reconsideration of an order dismissing his complaint for failure to comply with discovery. For reversal, Townsend argues that the district court abused its discretion in dismissing the motion, because his psychologist advised him to avoid circumstances that would cause “excessive mental duress” including “the grueling nature that deposition taking may entail.” For the following reasons, we affirm. Townsend, a black male, began working for the Terminal Packaging Company (Terminal Packaging) in August 1983, and was discharged in February 1985 for repeated tardiness. On April 21, 1986, he filed suit in federal court for employment discrimination under 42 U.S.C. § 1981 against Terminal Packaging and one of its employees, Pat Ryan. During the course of discovery, Townsend failed to appear for depositions on three occasions, including one occasion when the magistrate had ordered him to appear. After he also failed to attend a scheduled pretrial conference, Terminal Packaging and Ryan moved for dismissal with prejudice under Federal Rule of Civil Procedure 37(b)(2)(C). On May 4, 1987, the district court granted the motion and dismissed the case. Approximately seven months later, on December 28, 1987, Townsend filed a “motion to reconsider” which the court denied on January 26, 1988, on the ground that it was untimely. Three days later, Townsend appealed the order denying his motion for reconsideration. It is not clear whether the district court treated Townsend’s motion as one to alter or amend judgment under Federal Rule of Civil Procedure 59(e) or as a motion for postjudgment relief under Federal Rule of Civil Procedure 60(b). In either case, we conclude that the district court properly dismissed Townsend’s motion as untimely. Under Rule 59(e), Townsend had ten days from the May 4, 1987, dismissal order to file a motion to alter the judgment. This he failed to do, and therefore, the district court was without jurisdiction to consider such a motion. See Spinar v. South Dakota Bd. of Regents, 796 F.2d 1060, 1062 (8th Cir.1986). Under" }, { "docid": "22366664", "title": "", "text": "motion on January 14, 2000. Arnold filed his notice of appeal (specifying that motion, among others things) on February 14, 2000 — 31 days after the court denied the motion. Arnold’s ostensibly late filing, see Fed. RApp.P. 4(a)(1)(A) (requiring the notice of appeal to be filed within 30 days after the judgment is entered), is excused because the thirtieth day, February 13, 2000, fell upon a Sunday. See Fed.RApp.P. 26(a)(3) (excluding weekend days from consideration as the filing date). Thus Arnold’s appeal from the denial of his post-judgment motion is timely. 1 Though the appeal is timely, we lack subject-matter jurisdiction to consider the appeal from the denial of the Rule 59(e) motion in particular. A Rule 59(e) motion must be filed -within' 10 days of the entry of judgment. As we explained earlier, the time period may not be extended by the court, nor by agreement of counsel. See Fed.R.Civ.P. 6(b). Arnold’s Rule 59(e) motion was untimely because it was filed eleven days after the district court’s entry of judgment. Because the motion was late-filed, the district court lacked jurisdiction to consider it; consequently, we lack the power to review that court’s decision, which is effectively a nullity. Garrett v. United States, 195 F.3d 1032, 1033-34 (8th Cir.1999). 2 Unlike the Rule 59(e) motion, Arnold’s Rule 60(b) motion was timely filed in the district court. See Fed.R.Civ.P. 60(b) (allowing a party to file such a motion within “a reasonable time,” or within one year, depending on the type of motion). We may thus entertain his appeal solely on this point. Ill We review a district court’s denial of relief under Fed.R.Civ.P. 60(b) only for abuse of discretion. Sanders, 862 F.2d at 169 (citing United States v. Young, 806 F.2d 805, 806 (8th Cir.1986) (per curiam)). Because Rule- 60(b) cannot substitute for an appeal, Sanders, 862 F.2d at 170 & n. 16, an appeal from the denial of a Rule 60(b) motion does not present the underlying judgment for our review. Id. at 169-70. We conclude the district court did not abuse its discretion in this case. Arnold’s Rule 60(b)" }, { "docid": "22280325", "title": "", "text": "per cu-riam); see also Snider v. Melindez, 199 F.3d 108, 112 (2d Cir.1999). The dismissal of the second case as frivolous under 28 U.S.C. § 1915A(b) counted as a strike, but this court’s summary affirmance under Eighth Circuit Rule 47A(a) did not. See 28 U.S.C. § 1915(g) (describing a strike as “an action or appeal ... that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim”); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.1996) (only dismissal of appeal as frivolous counts as strike, whereas affir-mance of dismissal for frivolousness does not); Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir.1999) (same). Because we find that Owens has only one strike, we grant his motion for leave to proceed IFP in both appeals, leaving fee-collection details to the district court, see Henderson v. Norris, 129 F.3d 481, 484-85 (8th Cir.1997) (per curiam). Neither case was subject to dismissal under section 1915(g). We note that, in a footnote in the case underlying appeal No. 06-3007, the district court also expressed the view that Owens’s amended complaint was subject to dismissal under 28 U.S.C. § 1915A, because it was frivolous or malicious or failed to state a claim. Reading the original complaint and amendments together as we believe Owens intended, we disagree. See Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir.1999) (per curiam) (liberally construing original complaint, after observing that amended complaint standing alone failed to state a claim but that plaintiff clearly intended to have both complaints read together). At least some of Owens’s allegations appear to state claims against some defendants. See, e.g., Cody v. Weber, 256 F.3d 764, 771 (8th Cir.2001) (conduct undertaken in retaliation for inmate’s exercise of constitutionally protected right is actionable, even if conduct would have been proper if motivated by different reason); Powells v. Minnehaha, County Sheriff Dep’t, 198 F.3d 711, 712 (8th Cir.1999) (per curiam) (inmate stated constitutional claim by alleging officers opened his legal mail when he was not present). While in the lawsuit underlying appeal No. 07-1056 Owens raised" }, { "docid": "22601939", "title": "", "text": "under Rule 60(b), the Court denied it. The Court then dismissed the amended complaint with prejudice under section 1915(e)(2)(B)(ii), concluding Moore failed to state a claim for violation of his due-process rights. Under section 1915(e)(2)(B)(ii), a District Court shall dismiss a complaint filed in forma pauperis “at any time if ... the action ... fails to state a claim on which relief may be granted.” After our de novo review, cf. Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir.1999) (per curiam) (28 U.S.C. § 1915A dismissal reviewed de novo), we conclude that Moore’s claim that he was unlawfully seized should not have been dismissed as it was not barred by Heck. In Heck, the Supreme Court held that a section 1983 action should be dismissed if a judgment “would necessarily imply the invalidity of [a plaintiffs] conviction or sentence,” unless the conviction or sentence was reversed, expunged, declared invalid, or called into question. The Court noted, however, that some section 1983 actions, “even if successful, will not demonstrate the invalidity of any outstanding criminal judgment” against a plaintiff and should be allowed to proceed. See Heck, 512 U.S. at 486-87, 114 S.Ct. 2364. The Court stated: For example, a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the § 1983 plaintiffs still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, and especially harmless error, such a § 1983 action, even if successful, would not necessarily imply that the plaintiffs conviction was unlawful. Id. at 487 n. 7, 114 S.Ct. 2364 (internal citations omitted). Moore’s unlawful-seizure claim falls within this category. If Moore successful ly demonstrates that his initial seizure and detention by officers was without probable cause, such a result does not necessarily imply the invalidity of his drug-possession conviction. We therefore reverse the dismissal of this claim. We agree, however, that Moore’s claim that evidence was unlawfully “planted” was Heck-barred and therefore properly dismissed. Cf. Moore v. Novak, 146 F.3d 531, 535-36 (8th Cir.1998) (plaintiff convicted" }, { "docid": "22557789", "title": "", "text": "54 L.Ed.2d 521 (1978); Sutherland v. ITT Continental Baking Co., 710 F.2d 473, 475 (8th Cir.1983); Fox, 620 F.2d at 179-80; Lang v. Wyrick, 590 F.2d 257, 259 (8th Cir.1978) (per curiam). Under these standards, Sanders’ appeal fails regardless of whether we construe his motion as arising under Rule 59(e) or under Rule 60(b), and in particular under Rule 60(b)(1). If we consider the motion as one for an amended judgment under Rule 59(e), the appeal fails for want of jurisdiction. When Sanders made his motion more than ten days after judgment, the district court’s denial of relief could rest on its lack of jurisdiction. Moreover, when the appellant filed his appeal more than thirty days after entry of judgment (in this case the Memorandum and Order for summary judgment), the appeal came too late to invoke appellate review. See Spinar, 796 F.2d at 1062-63; supra note 2. Thus, we must deny appellant any relief on this appeal if his motion arose under Rule 59(e). Turning now to the possible contention that the motion for reconsideration sought relief under Rule 60(b), we observe that the appellant did file his motion for reconsideration within thirty days after the entry of the summary judgment order, so unlike in Spinar and Fox, the district court did have jurisdiction to rule on the motion. It denied the motion, and we may review this ruling only for abuse of discretion. United States v. Young, 806 F.2d 805, 806 (8th Cir.1986) (per curiam), cert. denied, — U.S.-, 108 S.Ct. 117, 98 L.Ed.2d 76 (1987); Spinar, 796 F.2d at 1062. The district court did not abuse its discretion in denying Sanders’ motion under Rule 60(b). First, the motion asserts that the district court erred as a matter of law in ruling that Missouri’s five-year statute of limitations barred his claims. Thus, the motion raises only issues of law that previously were rejected by the district court, and the district court did not abuse its discretion by subsequently denying relief. As Chief Judge Lay explained in Fox, the failure to present reasons not previously considered by the court" }, { "docid": "6183706", "title": "", "text": "that motion that Roark appeals. II. A district court has broad discretion in determining whether to grant a motion for postjudgment relief, and we will not reverse absent a clear abuse of discretion. See Innovative Home Health Care v. P.T.-O.T. Associates, 141 F.3d 1284, 1286 (8th Cir.1998) (indicating that we review a district court’s denial of a Rule 59(e) motion for an abuse of discretion); Cowan v. Strafford R-VI Sch. Dist., 140 F.3d 1153, 1159 (8th Cir.1998) (applying the abuse of discretion standard when reviewing the denial of a Rule 60(b) motion). “An abuse of discretion will only be found if the district court’s judgment was based on clearly erroneous factual findings or erroneous legal conclusions.” Mathenia v. Delo, 99 F.3d 1476, 1480 (8th Cir.1996), cert. denied, 521 U.S. 1123, 117 S.Ct. 2518, 138 L.Ed.2d 1020 (1997). Our determination of whether the district court abused its discretion in denying Roark’s postjudgment motion necessarily entails a review of the district court’s grant of judgment on the pleadings and summary judgment. See id. The district court properly dismissed Roark’s Title VII claims of retaliation and discrimination during the course of his employment because Roark failed to present those claims in his complaint to the EEOC. See Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222 (8th Cir.1994). The district court also properly dismissed Roark’s claim against Orlicek in his individual capacity because a supervisor may not be held liable under Title VII. See Bonomolo-Hagen v. Clay Central-Everly Community Sch. Dist., 121 F.3d 446, 447 (8th Cir.1997) (per curiam). We turn then to Roark’s claim of racial discrimination in connection with his termination. Claims of discrimination under Title VII and section 1981 are analyzed under the burden-shifting framework enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Richmond v. Bd. of Regents of Univ. of Minn., 957 F.2d 595, 598 (8th Cir.1992). Initially, Roark must establish a prima facie case of discrimination. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)." }, { "docid": "23525171", "title": "", "text": "PER CURIAM. Federal prisoner John Gregory Lam-bros appeals the district court’s order denying his Fed.R.Civ.P. 59(e) motion to alter or amend the district court’s order denying his Fed.R.Civ.P. 60(b) challenge to the denial of a previous Rule 60(b) motion. In that previous Rule 60(b) motion, Lambros challenged the 1997 denial of his 28 U.S.C. § 2255 motion attacking his drug convictions. For the reasons stated below, we dismiss the appeal. In 1993, a jury convicted Lambros of four cocaine-related offenses, including a conspiracy count. On appeal, this court vacated the sentence on the conspiracy count, remanded for resentencing on that count, and affirmed the conviction in all other respects. See United States v. Lambros, 65 F.3d 698 (8th Cir.1995), cert. denied, 516 U.S. 1082, 116 S.Ct. 796, 133 L.Ed.2d 744 (1996). On remand, Lambros filed multiple new trial motions pursuant to Fed.R.Crim.P. 33. The district court treated the new trial motions as a single § 2255 motion and denied all the claims. Lambros appealed the 360-month prison term to which he was resentenced. This court affirmed. See United States v. Lambros, No. 97-1553, 1997 WL 538013 (8th Cir. Sept.2, 1997) (unpublished per curiam), cert. denied, 522 U.S. 1065, 118 S.Ct. 731, 139 L.Ed.2d 669 (1998). Two subsequent § 2255 motions filed by Lam-bros were dismissed by the district court because this court had not authorized their filing. See 28 U.S.C. §§ 2255 and 2244. In 2001, Lambros filed a Rule 60(b) motion to vacate all of the previous judgments of the district court related to the denial of habeas relief. Construing the motion as a successive application for § 2255 relief, the district court denied relief because Lambros had not received authorization to file another § 2255 motion. This court affirmed. See United States v. Lambros, 40 Fed.Appx. 316 (8th Cir.2002) (unpublished per curiam), cert. denied, 537 U.S. 1195, 123 S.Ct. 1255, 154 L.Ed.2d 1032 (2003). Lambros filed a Rule 60(b) motion asking the district court to vacate its 2001 order denying his first Rule 60(b) motion. He argued that the court had improperly construed that previous motion as a" }, { "docid": "21909635", "title": "", "text": "Munroe v. Cont’l W. Ins. Co., 735 F.3d 783, 787 (8th Cir. 2013), quoting Jackson v. Gen. Accident Ins. Co., 720 S.W.2d 428, 429 (Mo. App. 1986) (internal quotation marks omitted). Here, the declarations page “clearly communicates” there is no auto medical coverage. Id. The Auto Medical Pay Endorsement does not “expressly change” this.- Id. ,It says: “With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by the endorsement.” Nothing in the endorsement modifies the declarations page. Reading the endorsement together with the declarations page, the district court properly found the policy does not cover, auto medical payments. IV. Peterson contends the district court erred in dismissing her remaining claims. But each of them requires underlying coverage. The. complaint alleges coverage under only the auto medical coverage provision of the policy. Because she is not insured under that provision, the district court properly dismissed her remaining claims. See Stanton v. State Farm Fire & Cas. Co., 169 F.Supp.2d 1109, 1115 (D.S.D. 2001) (finding that to assert a bad faith claim against the insurer, “there must be a failure to comply with a duty under the insurance contract”). V. Peterson thinks the district court erred in denying her motions for reconsideration and leave to amend. “A ‘motion for reconsideration’ is not described in the Federal Rules of Civil Procedure, but such a motion is typically construed either as a Rule 59(e) motion to alter or amend the judgment or as a Rule 60(b) motion for relief from judgment.” Auto Servs. Co. v. KPMG, LLP, 537 F.3d 853, 855 (8th Cir. 2008). Similarly, motions seeking post-judgment leave to amend must satisfy “the stringent standards governing the grant of Rule 59(e) and Rule 60(b) relief.” United States v. Mask of Ka-Nefer-Nefer, 752 F.3d 737, 743 (8th Cir. 2014). Únder either Rule 59(e) or Rule 60(b), this court reviews for abuse of discretion. See id. at 743 (reviewing' Rule 60(b) motion for leave to amend); Auto Servs. Co., 537 F.3d at 855 (reviewing Rule 59(e) motion for reconsideration). The district court found Peterson’s motions sought to" }, { "docid": "6837651", "title": "", "text": "PER CURIAM. In these consolidated appeals, South Dakota inmate Ricky Powells appeals from the District Court’s order dismissing his three consolidated actions for failure to state a claim under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) (Appeal Nos. 99-2029, 99-2032, and 99-2034) and from the District Court’s order dismissing Powells’s other two consolidated actions for failure to pay the filing fee (Appeal No. 99-3352). We affirm in part, reverse in part, and remand to the District Court. In August, September, and November 1998, Powells, a black man, filed three actions under 42 U.S.C. § 1983, claiming that a number of defendants violated his constitutional rights during his incarceration at the Minnehaha County Jail (D.Ct. Nos. 98-4136, 98-4160, and 98-4200.) In each of the three cases, Powells filed an in forma pauperis (IFP) application, which the District Court granted. The District Court consolidated the actions and dismissed them pursuant to sections 1915(e)(2)(B)(ii) and 1915A(b)(1) for failure to state a claim upon which relief may be granted. In December 1998, Powells filed two additional section 1983 actions arising from his incarceration in the South Dakota State Prison (D.Ct. Nos. 98-4233 and 98-4235.) The District Court consolidated the actions and, pursuant to 28 U.S.C. § 1915(g), denied Powells’s request to file the actions IFP because the Court had dismissed the prior three section 1983 actions. The District Court notified Powells that failure to pay the entire filing fee would result in dismissal of the actions. Powells did not pay the filing fee, and the court dismissed the cases. After our de novo review, see Cooper v. Schriro, 189 F.3d 781, 783 (8th Cir.1999) (§ 1915A dismissal reviewed de novo), we conclude that some of the allegations Powells made in case no. 98-4160 stated a claim. First, Powells alleged that he and his white cellmate, who followed the same procedures in requesting an extra mattress and extra blanket, were similarly situated and that Officer # 084, for racial reasons, denied his, but granted the white inmate’s, request for the items. We conclude that these allegations stated an equal-protection claim. Cf. Nash v. Black, 781 F.2d" }, { "docid": "23076625", "title": "", "text": "PER CURIAM: Plaintiff Mark Marvin (“Marvin”), pro se and incarcerated, filed this action pursuant to 42 U.S.C. § 1983, alleging that: (1) he was denied access to the courts because his legal mail was seized and because he was prohibited from sending any mail to his attorney for a 23 month period (“first claim”); (2) the New York State Board of Parole (“Board”) violated the ex post facto and due process clauses of the Constitution by denying his applications for work release and parole based on the Board’s classification of the crime for which he was convicted as “serious” (“second claim”); (3) employees of the New York State Department of Correctional Services (“DOCS”) violated his right to a legal remedy in court by refusing to release to him correspondence sent by his common law wife to DOCS employees (“third claim”); (4) a directive promulgated by DOCS employees abridged his First Amendment right to freedom of religion (“fourth claim”); and (5) employees of DOCS were deliberately indifferent to his serious medical needs by not permitting, even at his own expense, a dentist to perform a root canal to treat an oral infection (“fifth claim”). Marvin also moved the district court for a preliminary injunction directing DOCS to permit the root canal. The United States District Court for the Western District (Elfvin, J.) denied his motion for preliminary injunctive relief and subsequently entered judgment sua sponte dismissing, pursuant to 28 U.S.C. §§ 1915(e) and 1915A, Marvin’s second and third claims on the merits and the remaining claims on the ground that Marvin had failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e. The district court also denied Marvin’s motion for reconsideration of the judgment. Marvin appeals from the judgment and the orders denying preliminary injunctive relief and reconsideration of the judgment. DISCUSSION We review de novo a dismissal made pursuant to 28 U.S.C. § 1915A or § 1915(e). See Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir.2001); Liner v. Goord, 196 F.3d 132, 134 (2d Cir.1999). I. Claims Dismissed for Failure to Exhaust In 1996, Congress passed" } ]

[ { "docid": "8867362", "title": "", "text": "$5,000 in currency out of the United States, but rather the failure to file the required report. Thus the key to establishing a violation of the section is determining at what point filing becomes necessary. As to this, the statute is silent. The Treasury Department, however, in accordance with the Congressional mandate, see 31 U.S.C. § 1058, has issued regulations implementing the currency re porting requirements. Specifically, 31 C.F.R. § 103.25(b) provides that the reports required by § 1101 “shall be filed ... at the time of departure. . . . ” Thus our inquiry here is whether appellant had reached the “time of departure” without filing the necessary report. We conclude that after the flight had been called for boarding and appellant had stepped onto the jetport preparing to board the plane, the critical “time of departure” had been reached. At this point, appellant had unequivocally manifested an intention to leave the United States, and although stepping on the jetport is not the latest temporal point which could be interpreted as the “time of departure,” fixing this critical point at a later time would create a myriad of practical problems for enforcing the law and thus run counter to Congressional intent. Interpreting the “time of departure” as actual boarding of the plane, for example, would require having a customs officer on board every international flight departing the United States to collect the proper forms and would place an intolerable burden upon law enforcement. Any later time, moreover, would compound these problems. Our decision as to what constitutes the time of departure is supported by the Second Circuit’s analysis in United States v. Gomez-Londono, 553 F.2d 805 (2d Cir. 1977). In Gomez-Londono, a reliable informant had notified the DEA that the appellee would be departing New York for Columbia, South America, carrying $100,000 for the completion of a drug deal. Customs agents then observed Gomez-Londono at the departure area for Avianca Airlines, approached him, and warned him of the currency reporting requirements. He at first denied having more than $5,000 in currency, but after being questioned further, handed agents an" } ]

[ { "docid": "18648275", "title": "", "text": "of Appeals, in reversing the decision on other grounds, did not comment on Judge Dooling’s interpretation of the word “departure”, United States v. Gomez Londono, 553 F.2d 805, 808 n. 4 (2d Cir. 1977), subsequent decisions have cast doubt upon such a restrictive reading of the regulation. In United States v. Ajlouny, 629 F.2d 830 (2d Cir. 1980), the Court of Appeals upheld a conviction under 18 U.S.C. § 2314 for transportation of stolen property in foreign commerce although the goods were seized from a dock before they were loaded aboard ship. That statute provides that whoever “transports” out of the United States goods, securities or money of the value of $5000 or more shall be punished. The court held the transportation requirement satisfied “once property bound for a foreign destination arrives in a customs area” and was awaiting loading aboard its vessel. Id. at 837. If something is being “transported” before it is loaded on board, it would seem that one can reach time of “departure” before boarding the carrier. Good sense suggests that the time of “departure” does not mean the moment when the aircraft leaves the landing field. By that moment the officials would have no effective means of enforcing the statute. It is more in accord with the manifest purpose of the legislation to construe the time of “departure” as that time reasonably close to the moment of the carrier’s actual departure when the passenger has manifested a definite commitment to leave the country with knowledge of the filing requirement and an intention not to file. The court holds the time of departure had been reached for defendants by 6:00 P.M. when each, after being informed of the need to file if they were taking with them more than $5000, denied he had more. When defendants made these denials their bags had been checked, and they had obtained boarding passes. They were sitting in the departure area awaiting boarding of an airplane scheduled to depart for Athens, Greece within 30 minutes. In order to board the aircraft nothing remained for them to do except walk through" }, { "docid": "8867364", "title": "", "text": "envelope containing $10,000. The Customs agents then arrested Gomez-Londono and obtained a warrant to search his luggage. At a pre-trial suppression hearing, the district court held that the warrant was improper, in part because Gomez-Londono’s conduct had not violated § 1101. The Second Circuit reversed, holding that the magistrate who had issued the warrant properly could have concluded that Gomez-Londono had reached a point at which filing was required. Id. at 810. Because Rojas was not detained until she actually entered the jetport to board her flight, the case before us is even stronger than Gomez-Londono. Our interpretation of the “time of departure,” moreover, does not conflict with the “rule of lenity” requiring strict construction of criminal statutes. “The canon in favor of strict construction [of criminal statutes] is not an inexorable command to override common sense and evident statutory purpose. . . . Nor does it demand that a statute be given the ‘narrowest meaning’; it is satisfied if the words are given their fair meaning in accord with the manifest intent of the lawmakers.” United States v. Moore, 423 U.S. 122, 145, 96 S.Ct. 335, 347, 46 L.Ed.2d 333 (1975) (quoting United States v. Brown, 333 U.S. 18, 25-26, 68 S.Ct. 376, 379-380, 92 L.Ed. 442 (1948)). In light of our interpretation of the “time of departure,” the evidence uncontrovertibly showed that appellant, by entering the jetport without filing the necessary reports, denying for the third time that she was carrying over $5,000 in currency, and foregoing a final opportunity to satisfy the reporting requirements, committed the crime delineated in 31 U.S.C. § 1101. III. The Suppression Motion Appellant’s second argument is that the evidence uncovered by the search of appellant’s luggage and purse, as well as the statements appellant made during interrogation, should have been suppressed as fruits of an illegal detention. We reject this argument. Both the government and appellant vigorously argue whether the search at issue was a “border search,” thus falling within Customs’ plenary authority to search lug gage at the border without any modicum of suspicion of criminal activity. E.g., United States v." }, { "docid": "18558686", "title": "", "text": "of a section 5316 violation. See United States v. Flores, 753 F.2d 1499, 1505 (9th Cir.1985) (en banc) (construing similar language in the Gun Control Act, 18 U.S.C. § 922(e) (1982)). The district court therefore correctly concluded that the government did not have to prove Meixner’s knowledge of the reporting requirement to establish its forfeiture case. IV The currency reporting requirement, 31 C.F.R. § 103.25(b) (1983), provides that “[rjeports ... shall be filed at the time of entry into the United States or at the time of departure____” In granting the government’s motion for summary judgment, the district court held that Meixner had reached the “time of departure” without filing the requisite currency report form. While we have never expressly addressed the question of what constitutes the “time of departure,” three courts of appeals and a district court of this circuit have had occasion to construe the language in accordance with the intent underlying the regulation. Perhaps the leading case interpreting the language of 31 C.F.R. § 103.25(b) and the meaning of “time of departure” is United States v. Rojas, 671 F.2d 159 (5th Cir. 1982). In Rojas, Customs Officers at Miami International Airport made an announcement similar to that made here describing the reporting requirement over the public address system. A Customs Officer with reporting forms in hand stopped Rojas and asked her if she were transporting more than $5,000 out of the United States. Rojas responded, “No.” When asked again Rojas laughed and said, “I wish I had $5,000.” Id. at 161. Rojas’ flight was called for boarding. She handed her boarding pass to a Braniff employee and began to walk down the jet-way. Two Customs Officers stopped her and requested that she accompany them to an examination room. A search of Rojas’ luggage revealed $1,500,000 in United States Currency hidden in Monopoly boxes and an additional $12,500 in Rojas’ purse. Id. at 161-62. The court held that Rojas had failed to report currency in excess of $5,000 at the “time of departure” as required by 31 C.F.R. § 103.25(b). The court stated: We conclude that after the" }, { "docid": "18558707", "title": "", "text": "of departure” was reached after the flight had been called and appellant had stepped onto the jetway preparing to board the airplane. The court determined that appellant had at that point “unequivocally manifested an intention to leave the United States.” Id. See also United States v. $831,16045 United States Currency, 607 F.Supp. 1407, 1412-14 (N.D.Cal.1985) (“time of departure” is reached “when one is reasonably close, both spatially and temporally, to the physical point of departure itself, and manifests a definite commitment to leave”), affd, 785 F.2d 317 (9th Cir.1986) (mem.); United States v. Gomez Londono, 422 F.Supp. 519, 525 (E.D.N.Y.1976) (under currency reporting regulation, time of departure could not be reached until person actually boarded airplane or at least received boarding pass and was ready to board), rev’d on other grounds, 553 F.2d 805 (2d Cir.1977). As proposed policy, these holdings are not without merit. However, the statute expressly delegates to the Secretary of the Treasury the power to prescribe the “time and place” at which the report is to be filed. 31 U.S.C. § 5316(b) (1982). The Secretary has declined to exercise that authori ty; it is not the province of this court to make that policy judgment for him. I do not insist as a matter of law that air travelers be permitted to wait until the exact moment they cross an international border or even until they board an aircraft before they can be held to a duty to file a report. The Secretary is free to demark a functional equivalent of the border at which point the duty arises. Such a demarcation could be established as the point of passing through security, obtaining a boarding pass, entering the jetway, or a combination of these or other factors. The Secretary has simply neglected to specify any point at all. I conclude that the regulation is unconstitutionally vague as applied to the claimant under the facts of this case. Under the plain language of the statute and regulation, Meixner could reasonably conclude that she relented in time to file the currency report before the actual “time of departure.”" }, { "docid": "18558699", "title": "", "text": "part on United States v. Cutaia, 511 F.Supp. 619 (E.D.N.Y.1981). Cutaia held that passengers who had checked their baggage, received their boarding passes, and moved into the departure area had reached the critical \"time of departure.” We previously have cited to that portion of the Cutaia decision with approval. United States v. Duncan, 693 F.2d 971 (9th Cir.1982) cert. denied, 461 U.S. 961, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983). . The dissent asserts that cases like Rojas, Gomez-Londono, and $831,160.45 United States Currency arguably attempt to make a policy judgment reserved to the Secretary because the statute under which 31 C.F.R. § 103.25(b) was promulgated delegates to the Secretary the power to prescribe the \"time and place” at which a currency report form is to be filed. We believe that these decisions in no way invade the province of the Secretary because the Secretary has determined that the proper \"time and place” for filing a report is the “time of departure.” Once the Secretary has promulgated the regulation, it is decidedly the duty of this court to insure that the regulation is given its fair meaning in accord with the manifest intention of the lawmakers. Rojas, 671 F.2d at 163. . See, e.g., United States v. National Dairy Products, 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963) (provision in Robinson-Patman Act making it a crime to sell goods at \"unreasonably low prices for the purposes of destroying competition or eliminating a competitor\" not void for vagueness); United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947) (upholding the constitutionality of a Communications Act provision making it a crime to coerce a radio-broadcasting licensee to employ \"in excess of the number of employees needed by such licensee to perform actual services”); Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167 (1932) (provision of Texas Motor Vehicle Act held constitutional despite section allowing greater length and weight specifications for vehicles transporting materials from the point of origin \"to the nearest practicable common carrier receiving or loading point or from a common carrier" }, { "docid": "18680882", "title": "", "text": "boarding passes. In reaching this determination, the Court defined the “time of departure” as that time reasonably close to the moment of the carrier’s actual departure when the passenger has manifested a definite commitment to leave the country.... Id., 511 F.Supp. at 625. The Ninth Circuit has cited this case with approval, United States v. Duncan, 693 F.2d 971 (9th Cir.1982), and the Second Circuit has implicitly applied a similar test. Gomez-Londono, supra. The general principle which may be gleaned from these cases is that the “time of departure” from the country is reached when one is reasonably close, both spatially and temporally, to the physical point of departure itself, and manifests a definite commitment to leave. Considering the instant situation in light of this principle, the Court determines that Kraitamchitkul reached the “time of departure” without properly filing a cur rency report. This conclusion is based on the uncontroverted facts that he arrived at the last security checkpoint in advance of his departure gate without exhibiting the least intention to comply tlvith the reporting requirement (of which he subsequently indicated he was indeed aware); that he arrived there approximately one hour before his scheduled flight; and that he had previously registered for the flight, checked his baggage, and received his boarding pass— all that thus remained for him to do was to walk to the gate, present his pass, and board the aircraft. Therefore, when Krai-tamchitkul approached the security checkpoint shortly before the flight he satisfied the requirements of proximity in space and time and this — in conjunction with his seeming determination to leave the United States — situated him at the “time of departure.” Inasmuch as he reached this point without having filed a currency report, the Court concludes that Kraitamchitkul violated 31 U.S.C. § 5316. (B) Kraitamchitkul’s Actual Knowledge of the Reporting Requirement Claimants’ other argument is that scien-ter is an element which must be established in a civil forfeiture proceeding under § 5317, and that because Kraitamchitkul was unaware of the reporting requirement the government’s motion should be denied. This argument is both factually and" }, { "docid": "18558688", "title": "", "text": "flight had been called for boarding and appellant had stepped onto the jetport preparing to board the plane, the critical “time of departure” had been reached. At this point, appellant had unequivocally manifested an intention to leave the United States, and although stepping on the jetport is not the latest temporal point which could be interpreted as the “time of departure,” fixing this critical point at a later time would create a myriad of practical problems for enforcing the law and thus run counter to Congressional intent. Interpreting the “time of departure” as actual boarding of the plane, for example, would require having a customs officer on board every international flight departing the United States to collect the proper forms and would place an intolerable burden upon law enforcement. Any later time, moreover, would compound these problems. Id. at 163 (emphasis added). The Rojas panel also rejected the contention that its decision conflicted with the doctrine of strict construction ordinarily invoked in the interpretation of statutes imposing penalties. “The canon in favor of strict construction [of criminal statutes] is not an inexorable command to override common sense and evident statutory purpose____ Nor does it demand that a statute be given the ‘narrowest meaning’; it is satisfied if the words are given their fair meaning in accord with the manifest intent of the lawmakers.” Id. (citations omitted). The facts of Rojas coupled with the court’s reasoning in that case indicate that Meixner violated 31 C.F.R. § 103.25(b) in this case. Meixner unequivocally manifested an intention to leave the United States in violation of the currency reporting requirement when she entered the jetway after stating that she was carrying less than $5,000 in United States Currency. In United States v. Gomez-Londono, 553 F.2d 805 (2d Cir.1977), rev’g, 422 F.Supp. 519 (E.D.N.Y.1976), the Second Cir cuit had the opportunity to address the “time of departure” language in the context of reviewing a search warrant issued under 31 U.S.C. § 1105 (1976). In that case, a reliable DEA informant had notified customs agents that Gomez-Londono would be leaving the United States with $100,000 in" }, { "docid": "18680881", "title": "", "text": "time. To construe this phrase as meaning the actual boarding of the aircraft, the Court stated, “would require having a customs officer on board every international flight departing the United States.... ” Id., 671 F.2d at 163. On the other hand, the Court declined equally to overrule the possibility that an earlier stage of the departure process might in some instances represent the critical point. Id., citing United States v. Gomez-Londono, supra, 553 F.2d 805, 810. Rather, the Court indicated that the “time of departure” is when one “unequivocally manifests] an intention to leave the United States.... ” Rojas, supra, 671 F.2d at 163. In United States v. Cutaia, supra, the District Court for the Eastern District of New York phrased the test somewhat differently. In that case the Court held that the critical point was attained when defendants had checked their baggage, obtained their boarding passes, and were sitting in the departure area awaiting takeoff an hour hence: all that remained was for them to walk through the departure gate and present tickets and boarding passes. In reaching this determination, the Court defined the “time of departure” as that time reasonably close to the moment of the carrier’s actual departure when the passenger has manifested a definite commitment to leave the country.... Id., 511 F.Supp. at 625. The Ninth Circuit has cited this case with approval, United States v. Duncan, 693 F.2d 971 (9th Cir.1982), and the Second Circuit has implicitly applied a similar test. Gomez-Londono, supra. The general principle which may be gleaned from these cases is that the “time of departure” from the country is reached when one is reasonably close, both spatially and temporally, to the physical point of departure itself, and manifests a definite commitment to leave. Considering the instant situation in light of this principle, the Court determines that Kraitamchitkul reached the “time of departure” without properly filing a cur rency report. This conclusion is based on the uncontroverted facts that he arrived at the last security checkpoint in advance of his departure gate without exhibiting the least intention to comply tlvith the reporting" }, { "docid": "18558689", "title": "", "text": "[of criminal statutes] is not an inexorable command to override common sense and evident statutory purpose____ Nor does it demand that a statute be given the ‘narrowest meaning’; it is satisfied if the words are given their fair meaning in accord with the manifest intent of the lawmakers.” Id. (citations omitted). The facts of Rojas coupled with the court’s reasoning in that case indicate that Meixner violated 31 C.F.R. § 103.25(b) in this case. Meixner unequivocally manifested an intention to leave the United States in violation of the currency reporting requirement when she entered the jetway after stating that she was carrying less than $5,000 in United States Currency. In United States v. Gomez-Londono, 553 F.2d 805 (2d Cir.1977), rev’g, 422 F.Supp. 519 (E.D.N.Y.1976), the Second Cir cuit had the opportunity to address the “time of departure” language in the context of reviewing a search warrant issued under 31 U.S.C. § 1105 (1976). In that case, a reliable DEA informant had notified customs agents that Gomez-Londono would be leaving the United States with $100,000 in United States Currency procured in a recent narcotics transaction. Customs agents began surveillance at Kennedy International Airport and stopped GomezLondono as he walked toward the departure area for his international flight. Customs Agents informed Gomez-Londono that he was required to file a report if he was transporting more than $5,000 out of the United States. Gomez-Londono was asked twice whether he had more than $5,000; he replied “No” and showed the agents the $900 he had in his pocket. The agents asked Gomez-Londono the question a third time at which point he removed an envelope containing $10,000 in United States Currency- In validating the search warrant the court stated: [I]n light of the fact that appellee had obtained a ticket, had checked his baggage, and was headed toward the departure area when he was stopped, we find that the magistrate could reasonably have concluded that there was probable cause to believe appellee had reached a point at which he was “required” to file a report. Id. at 810. Indeed, in United States v. $831,160.45 United" }, { "docid": "8867361", "title": "", "text": "States, or (2) receives monetary instruments at the termination of their transportation to the United States from or through any place outside the United States in an amount exceeding $5,000 on any one occasion shall file a report or reports in accordance with subsection (b) of this section. Section 1058 of the same title states: Criminal penalty Whoever willfully violates any provision of this chapter or any regulation under this chapter shall be fined not more than $1,000, or imprisoned not more than one year, or both. Appellant urges that her conviction cannot stand because the evidence failed to show that she actually transported over $5,000 in currency out of the United States. We disagree. This issue is one of first impression in this circuit. Our normal first step in construing a statute is to interpret the statutory language in accordance with its “plain meaning.” E.g., United States v. Yeatts, 639 F.2d 1186, 1189 (5th Cir. 1981). Contrary to appellant’s argument, however, the crime which § 1101 punishes is not the transportation of more than $5,000 in currency out of the United States, but rather the failure to file the required report. Thus the key to establishing a violation of the section is determining at what point filing becomes necessary. As to this, the statute is silent. The Treasury Department, however, in accordance with the Congressional mandate, see 31 U.S.C. § 1058, has issued regulations implementing the currency re porting requirements. Specifically, 31 C.F.R. § 103.25(b) provides that the reports required by § 1101 “shall be filed ... at the time of departure. . . . ” Thus our inquiry here is whether appellant had reached the “time of departure” without filing the necessary report. We conclude that after the flight had been called for boarding and appellant had stepped onto the jetport preparing to board the plane, the critical “time of departure” had been reached. At this point, appellant had unequivocally manifested an intention to leave the United States, and although stepping on the jetport is not the latest temporal point which could be interpreted as the “time of" }, { "docid": "18680879", "title": "", "text": "detailed in 31 U.S.C. § 5317(b), which specifically provides: (b) A monetary instrument being transported may be seized and forfeited to the United States Government when a report on the instrument under section 5316 of this title has not been filed.... These two sections provide the statutory authority upon which the government bases the instant motion for summary judgment of forfeiture. In opposition to forfeiture, claimants set forth two arguments. These will be discussed serially. (A) “Time of Departure” Claimants’ initial contention is that Krai-tamchitkul had not progressed far enough toward departure to violate § 5316. Seizure and forfeiture of the currency at the security checkpoint was improper, they argue, because Kraitamchitkul could have complied with the statutory scheme by reporting the currency after passing through the checkpoint. The central question here is whether Kraitamchitkul had physically proceeded far enough in his attempt to remove the currency from this country to trigger the reporting requirements of § 5316. The relevant regulation interpreting this section provides that the point of filing the report is “the time of departure from the United States.” 31 C.F.R. § 103.25(b). The few cases which have construed the operative, yet admittedly ambiguous phrase “time of departure” are consistent in their endorsement of the proposition that this point may be reached well before one actually crosses the international border, and even before taking a seat on an aircraft destined for a foreign port. See United States v. Gomez-Londono, 553 F.2d 805 (2d Cir.1977); United States v. Cutaia, 511 F.Supp. 619, 624-625 (E.D.N.Y.1982). No set rule has emerged, however, for divining at what precise physical point in the departure process the nascent duty to report matures; this has been evaluated on a case-by-case basis. In United States v. Rojas, 671 F.2d 159, 163 (5th Cir.1982), the Court held that the “time of departure” had been reached when, the flight having been called for boarding, the defendant stepped onto the jetport preparing to board the plane. Fearing that it might engender myriad enforcement problems, the Fifth Circuit refused to fix as the “time of departure” a latter point in" }, { "docid": "18558698", "title": "", "text": "actual or constructive possession\" of the money seized lacked standing); United States v. $364,960.00 in United States Currency, 661 F.2d 319, 326 (5th Cir.1981) (claimant who was not “in possession of the property at the time it was seized” lacked standing in absence of showing ownership). . 31 U.S.C. § 5316(a)(1) was amended in 1984. The amount of currency subject to the reporting requirements was changed from $5,000 to $10,-000. Pub.L. No. 98-473, Title II, § 901(c)(2), 98 Stat. 2135 (1984). . Rojas was decided by a panel of the new Eleventh Circuit and is precedent in both the Fifth and Eleventh Circuits. . Under 31 U.S.C. § 1105 (1976), a search warrant may be issued upon a showing of probable cause that \"monetary instruments are in the process of transportation and with respect to which a report required under section 1101 of this title has not been filed.\" Section 1105 has been amended and is now section 5317; section 1101 is now section 5316(a). . In $831,160.45 United States Currency, the court relied in part on United States v. Cutaia, 511 F.Supp. 619 (E.D.N.Y.1981). Cutaia held that passengers who had checked their baggage, received their boarding passes, and moved into the departure area had reached the critical \"time of departure.” We previously have cited to that portion of the Cutaia decision with approval. United States v. Duncan, 693 F.2d 971 (9th Cir.1982) cert. denied, 461 U.S. 961, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983). . The dissent asserts that cases like Rojas, Gomez-Londono, and $831,160.45 United States Currency arguably attempt to make a policy judgment reserved to the Secretary because the statute under which 31 C.F.R. § 103.25(b) was promulgated delegates to the Secretary the power to prescribe the \"time and place” at which a currency report form is to be filed. We believe that these decisions in no way invade the province of the Secretary because the Secretary has determined that the proper \"time and place” for filing a report is the “time of departure.” Once the Secretary has promulgated the regulation, it is decidedly the duty of" }, { "docid": "18558712", "title": "", "text": "to crossing of the border at which the duty to file a. currency report arises. The regulation’s stark designation of \"time of entry\" or \"time of departure\" can be unambiguously applied in such a context. See 31 C.F.R. § 103.25(b) (1983). Cases holding that government officials may constitutionally conduct border searches at points removed from the physical border are also inapposite. E.g., Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S.Ct. 2535, 2539-40, 37 L.Ed.2d 596 (border searches may take place at \"functional equivalents” of border, such as an established station near the border or at a domestic airport of arriving international flights); United States v. Alfonso, 759 F.2d 728, 734 (9th Cir. 1985) (search of Columbia vessel in Los Angeles harbor within a day-and-a-half after arrival constituted an extended border search); United States v. Duncan, 693 F.2d 971, 977 (9th Cir. 1982) (person stopped while proceeding up ramp to board international flight was at \"functional equivalent of a border”; customs search may be made before a passenger boards aircraft), cert. denied, 461 U.S. 961, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983). I do not suggest that the government is precluded from establishing a practical point as the functional equivalent of the border at which the duty to file a currency report would arise; rather I contend that they must in fact delineate such a point in the governing regulation. Furthermore, search and seizure cases involve application of the necessarily general prohibitions of the Fourth Amendment to governmental conduct in a particularized factual context. By contrast, the instant case involves the exacting of a penalty against private citizens for breaching an affirmative duty, without a clear delineation of when that duty arises. . This case was submitted for decision by the Fifth Circuit before the effective date of the court reorganization act establishing the Eleventh Circuit. See Pub.L. No. 96-452, § 9(1), 94 Stat. 1995 (1980). The case was decided by a panel of the new Eleventh Circuit. . I am also aware that Congress has recently adopted an amendment to section 5316, which may affect the result in" }, { "docid": "18558687", "title": "", "text": "is United States v. Rojas, 671 F.2d 159 (5th Cir. 1982). In Rojas, Customs Officers at Miami International Airport made an announcement similar to that made here describing the reporting requirement over the public address system. A Customs Officer with reporting forms in hand stopped Rojas and asked her if she were transporting more than $5,000 out of the United States. Rojas responded, “No.” When asked again Rojas laughed and said, “I wish I had $5,000.” Id. at 161. Rojas’ flight was called for boarding. She handed her boarding pass to a Braniff employee and began to walk down the jet-way. Two Customs Officers stopped her and requested that she accompany them to an examination room. A search of Rojas’ luggage revealed $1,500,000 in United States Currency hidden in Monopoly boxes and an additional $12,500 in Rojas’ purse. Id. at 161-62. The court held that Rojas had failed to report currency in excess of $5,000 at the “time of departure” as required by 31 C.F.R. § 103.25(b). The court stated: We conclude that after the flight had been called for boarding and appellant had stepped onto the jetport preparing to board the plane, the critical “time of departure” had been reached. At this point, appellant had unequivocally manifested an intention to leave the United States, and although stepping on the jetport is not the latest temporal point which could be interpreted as the “time of departure,” fixing this critical point at a later time would create a myriad of practical problems for enforcing the law and thus run counter to Congressional intent. Interpreting the “time of departure” as actual boarding of the plane, for example, would require having a customs officer on board every international flight departing the United States to collect the proper forms and would place an intolerable burden upon law enforcement. Any later time, moreover, would compound these problems. Id. at 163 (emphasis added). The Rojas panel also rejected the contention that its decision conflicted with the doctrine of strict construction ordinarily invoked in the interpretation of statutes imposing penalties. “The canon in favor of strict construction" }, { "docid": "18558711", "title": "", "text": "boarding the aircraft. However, in reviewing her conviction for willful failure to report transportation of more than $5,000 in currency, this court limited its analysis to the constitutional permissibility of the search revealing the currency, whether a violation of the reporting requirement can be knowing and willful in the absence of actual denial in writing, and whether the reporting requirement infringed upon the privilege against self-incrimination. The Des Jardins court did not squarely confront the issue as to when the duty to file the report arises under the governing regulation. . Cases involving entry into or departure from this country across an actual border must be distinguished. E.g., United States v. $47,980 in Canadian Currency, 726 F.2d 532, 534 (9th Cir. 1984) (currency reporting requirement attached when claimant’s agents presented themselves at a port of entry, on United States soil, despite eventual denial of entry). Presentation at a border station or arrival inside the United States at an international airport do not present fact situations in which the court must look for a point prior to crossing of the border at which the duty to file a. currency report arises. The regulation’s stark designation of \"time of entry\" or \"time of departure\" can be unambiguously applied in such a context. See 31 C.F.R. § 103.25(b) (1983). Cases holding that government officials may constitutionally conduct border searches at points removed from the physical border are also inapposite. E.g., Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S.Ct. 2535, 2539-40, 37 L.Ed.2d 596 (border searches may take place at \"functional equivalents” of border, such as an established station near the border or at a domestic airport of arriving international flights); United States v. Alfonso, 759 F.2d 728, 734 (9th Cir. 1985) (search of Columbia vessel in Los Angeles harbor within a day-and-a-half after arrival constituted an extended border search); United States v. Duncan, 693 F.2d 971, 977 (9th Cir. 1982) (person stopped while proceeding up ramp to board international flight was at \"functional equivalent of a border”; customs search may be made before a passenger boards aircraft), cert. denied, 461 U.S." }, { "docid": "18558705", "title": "", "text": "specificity that it does not encourage arbitrary enforcement by customs agents, see Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983), and that it affords fair warning of the point at which the duty to report is activated such that individuals can reasonably rely upon it in regulating their own conduct, see Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 502, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). The governing regulation, 31 C.F.R. § 103.25(b) (1983), provides only that the currency transportation report “shall be filed at the time of entry into the United States or at the time of departure____” The government contends the duty to file the report attached at the time Meixner was first stopped on the jetway by customs agents. It is impossible to find support for that assertion in the language of the regulation. Read literally, the regulation does not impose the duty to file the report until an individual has actually crossed the international boundary line. Although this may be an unduly restrictive interpretation, it is difficult to determine from the plain language of the regulation at what earlier point the duty does arise. In fact, it is possible to conceive of a passenger, running late for an international flight, being aware of the reporting requirement as outlined in the regulation and yet believing he could secure his seat on the airplane before requesting the report form to fill out. The regulation does not clearly label such conduct a violation. The instant case presents a less extreme situation. Meixner was at the end of the jetway but had not yet boarded the airplane. When the currency reporting form was made available to her, she offered and attempted to complete it, but was not allowed to by the customs agents. I simply cannot ascertain from the regulation that she had effectively passed the point of departure from the country. I recognize that the Fifth Circuit, in United States v. Rojas, 671 F.2d 159, 163 (5th Cir. 1982) , concluded that the critical “time" }, { "docid": "18558706", "title": "", "text": "this may be an unduly restrictive interpretation, it is difficult to determine from the plain language of the regulation at what earlier point the duty does arise. In fact, it is possible to conceive of a passenger, running late for an international flight, being aware of the reporting requirement as outlined in the regulation and yet believing he could secure his seat on the airplane before requesting the report form to fill out. The regulation does not clearly label such conduct a violation. The instant case presents a less extreme situation. Meixner was at the end of the jetway but had not yet boarded the airplane. When the currency reporting form was made available to her, she offered and attempted to complete it, but was not allowed to by the customs agents. I simply cannot ascertain from the regulation that she had effectively passed the point of departure from the country. I recognize that the Fifth Circuit, in United States v. Rojas, 671 F.2d 159, 163 (5th Cir. 1982) , concluded that the critical “time of departure” was reached after the flight had been called and appellant had stepped onto the jetway preparing to board the airplane. The court determined that appellant had at that point “unequivocally manifested an intention to leave the United States.” Id. See also United States v. $831,16045 United States Currency, 607 F.Supp. 1407, 1412-14 (N.D.Cal.1985) (“time of departure” is reached “when one is reasonably close, both spatially and temporally, to the physical point of departure itself, and manifests a definite commitment to leave”), affd, 785 F.2d 317 (9th Cir.1986) (mem.); United States v. Gomez Londono, 422 F.Supp. 519, 525 (E.D.N.Y.1976) (under currency reporting regulation, time of departure could not be reached until person actually boarded airplane or at least received boarding pass and was ready to board), rev’d on other grounds, 553 F.2d 805 (2d Cir.1977). As proposed policy, these holdings are not without merit. However, the statute expressly delegates to the Secretary of the Treasury the power to prescribe the “time and place” at which the report is to be filed. 31 U.S.C. §" }, { "docid": "18558690", "title": "", "text": "United States Currency procured in a recent narcotics transaction. Customs agents began surveillance at Kennedy International Airport and stopped GomezLondono as he walked toward the departure area for his international flight. Customs Agents informed Gomez-Londono that he was required to file a report if he was transporting more than $5,000 out of the United States. Gomez-Londono was asked twice whether he had more than $5,000; he replied “No” and showed the agents the $900 he had in his pocket. The agents asked Gomez-Londono the question a third time at which point he removed an envelope containing $10,000 in United States Currency- In validating the search warrant the court stated: [I]n light of the fact that appellee had obtained a ticket, had checked his baggage, and was headed toward the departure area when he was stopped, we find that the magistrate could reasonably have concluded that there was probable cause to believe appellee had reached a point at which he was “required” to file a report. Id. at 810. Indeed, in United States v. $831,160.45 United States Currency, 607 F.Supp. 1407 (N.D.Cal.1985), affd mem., 785 F.2d 317 (9th Cir.1986), the district court held that a traveler, who admitted that he knew of the reporting requirement and had intended not to comply with it, had reached the “time of departure” when he attempted to pass through the x-ray checkpoint at San Francisco International Airport, after having checked his luggage and received his boarding pass. The district court in $831,160.45 United States Currency stated that the time of departure was “reached when one is reasonably close, both spatially and temporally, to the physical point of departure itself, and manifests a definite commitment to leave.” Id. at 1413. This formulation was subsequently adopted by the Fourth Circuit in United States v. Ozim, 779 F.2d 1017, 1018 (4th Cir.1985). There the court upheld criminal convictions of airline passengers who had secured their boarding passes and seat assignments, and had taken or attempted to take unreported currency into the departure area to await a flight expected to depart within two hours. What emerges from these cases" }, { "docid": "18680880", "title": "", "text": "of departure from the United States.” 31 C.F.R. § 103.25(b). The few cases which have construed the operative, yet admittedly ambiguous phrase “time of departure” are consistent in their endorsement of the proposition that this point may be reached well before one actually crosses the international border, and even before taking a seat on an aircraft destined for a foreign port. See United States v. Gomez-Londono, 553 F.2d 805 (2d Cir.1977); United States v. Cutaia, 511 F.Supp. 619, 624-625 (E.D.N.Y.1982). No set rule has emerged, however, for divining at what precise physical point in the departure process the nascent duty to report matures; this has been evaluated on a case-by-case basis. In United States v. Rojas, 671 F.2d 159, 163 (5th Cir.1982), the Court held that the “time of departure” had been reached when, the flight having been called for boarding, the defendant stepped onto the jetport preparing to board the plane. Fearing that it might engender myriad enforcement problems, the Fifth Circuit refused to fix as the “time of departure” a latter point in time. To construe this phrase as meaning the actual boarding of the aircraft, the Court stated, “would require having a customs officer on board every international flight departing the United States.... ” Id., 671 F.2d at 163. On the other hand, the Court declined equally to overrule the possibility that an earlier stage of the departure process might in some instances represent the critical point. Id., citing United States v. Gomez-Londono, supra, 553 F.2d 805, 810. Rather, the Court indicated that the “time of departure” is when one “unequivocally manifests] an intention to leave the United States.... ” Rojas, supra, 671 F.2d at 163. In United States v. Cutaia, supra, the District Court for the Eastern District of New York phrased the test somewhat differently. In that case the Court held that the critical point was attained when defendants had checked their baggage, obtained their boarding passes, and were sitting in the departure area awaiting takeoff an hour hence: all that remained was for them to walk through the departure gate and present tickets and" }, { "docid": "18648274", "title": "", "text": "of the need to file and that the government informed them of that need. Defendants contend, however, that their duty to report had not yet accrued as of the time they were arrested. Section 103.25(b) of 31 C.F.R. requires a report to be “filed at the time of ... departure, mailing or shipping from the United States,” unless the Commissioner of Customs otherwise directs. If their denials were made “at the time of departure” defendants violated § 1101. They assert that their statements were made before the time of “departure”. In United States v. Gomez-Londono, supra, Judge Dooling held that a defendant arrested in an airport waiting area after he had checked his baggage but before he had surrendered his ticket at the departure gate had not yet reached the time of “departure”. That opinion suggested that officers should have delayed their intervention until the suspect had surrendered his passage coupon, had received his boarding pass and was ready to board, or had taken his place aboard the aircraft. Id. at 525. While the Court of Appeals, in reversing the decision on other grounds, did not comment on Judge Dooling’s interpretation of the word “departure”, United States v. Gomez Londono, 553 F.2d 805, 808 n. 4 (2d Cir. 1977), subsequent decisions have cast doubt upon such a restrictive reading of the regulation. In United States v. Ajlouny, 629 F.2d 830 (2d Cir. 1980), the Court of Appeals upheld a conviction under 18 U.S.C. § 2314 for transportation of stolen property in foreign commerce although the goods were seized from a dock before they were loaded aboard ship. That statute provides that whoever “transports” out of the United States goods, securities or money of the value of $5000 or more shall be punished. The court held the transportation requirement satisfied “once property bound for a foreign destination arrives in a customs area” and was awaiting loading aboard its vessel. Id. at 837. If something is being “transported” before it is loaded on board, it would seem that one can reach time of “departure” before boarding the carrier. Good sense suggests that" } ]

[ { "docid": "16347851", "title": "", "text": "were all paid. .The only controversy was about the interest and damages, as. above stated. The commissioner reported that, according' to the ¡basis of .settlement claimed by the appellant, he had overpaid the amount due on the decree, $61.50 ; but that, according to the construction-of the mandate insisted on by the appellees, there was still due to them a balance of $3,831.02. Upon-this report, the appellant moved the court to order satisfaction of the decree to be eritered of record; or, to quash the execution then in the hands of the marshal, and order. the clerk of the court to issue no furthe fi. fa. on the decree; and, also, for an order on the marshal., .or the appellees, as might be proper to refund the money overpaid. But the court overruled, the motion, ordering, at.the same time,-that no further execution should issue, until the appellant had a reasonable time to present an appeal to this court. .And this appeal was .accordingly taken. An objection has-been made to the manner in which thisca3e has been brought before the court, and a motion made to dismiss, upon the ground that an appeal will not lie from this decision of' the Circuit Court. This objection to the form of proceeding, involves nothing more than a question of practice. The mandate from this court left nothing to the judgment and discretion of the Circuit Court, but directed it to carry into execution the decree of this court, which was recited in the mandate.' And if the decree of this court has been misunderstood, or misconstrued, by the court below, to the injury of either party, we see no valid objection to an appeal to this court, in order to have the error corrected. The question is merely1 as to the form of proceeding which this court should adopt, to enforce the execution of its. own mandate in the court below. The subject might, without doubt, be brought before us upon motion, and a mandamus issued to compel its execution. But an appeal from the decision of the court below, is equally convenient" } ]

[ { "docid": "15246559", "title": "", "text": "and also the amount of costs taxed' in the cause, amounting, to the sum of $15.93.45, and rested their case. Thereupon the defendants, to maintain the issues on their part/' put in evidence, among other matters, the following: 1st. The decree rendered by the District Court against the owners of the Sabine in favor of the cross, libellants, the owners of the Richmond, showing the amount decreed against the sureties on the bond of $8000 to be .the sum of $2000 each. 2d. The decree of the Circuit Court in the same cause in the amount of $1392.60 in sólido against the owners of the steamer Sabine, and against the sureties on the original bond for $8000 in the sum of $2000 each. 3d. The petition and allowance of the appeal from that decree to the Supreme Court of the United States, together with the appeal bond for the prosecution thereof. 4th. The record of the proceedings in the Circuit Court on the motion to quash the execution, together with the judg ment of the court allowing said motion and quashing the said execution. 5th. Four written papers signed by Kennard, Howe & Prentiss, attorneys of record for the owjiers of the steamer Richmond in the proceedings in admiralty, showing payments made by the parties respectively in satisfaction of the decree of the Circuit Court against them, which papers are as follows: “U. S. Circuit Court. “ Sarah C. Shirley et ais. v. St’r Richmond. “Rec’d, New Orleang, July 3d, 1876, from Jules Tuyes, Esq., 'security on the bond given by libellants in the above cause to respond to the cross libel' filed by N. S. Green et al., claimants of the steamer Richmond, the sum of eleven hundred and sixty-six dollars in full satisfaction of decree rendered against him in above entitled cause, and I hei*eby subrogate him to the rights of N. S. Green and owners of the st’r Richmond. (Signed) “ Kennard, IIowe & Prentiss, “ Att'ys for Owners of Iiiohmond,?'’ “ Received, New Orleans, Sept. 28th, 1876, from Home Ins. Co., fifteen hundred dollars in full" }, { "docid": "23056350", "title": "", "text": "would constitute the foundation for proceedings to enforce it, the former must be held as of equal authority. These are conclusions which reason and justice and consistency sustain, and an investigation will show them to be supported by express adjudica tion. It is true that, owing to the peculiar character of equity-jurisprudence, there are instances of decisions by courts of equity which can be enforced only by the authority and proceedings of these courts. Such, for example, is the class of cases for specific performances ; or wherever the decision of the court is to be fulfilled by some personal act of a party, and not by the mere payment of an ascertained sum of money. But this arises from the nature of the act decreed to be performed, .and from the peculiar or extraordinary power of the court to enforce it, and has no relation whatsoever to the comparative dignity or authority between judgments at law and decrees in equity. We lay it down, therefore, as the general rule, that in every instance in which an action of debt -can be maintained upon a judgment at law for a sum of money awarded by such judgment, the like action can be maintained upon a decree in equity which is for an ascertained and specific amount, and nothing more; and that the record of the proceedings in the one case must be ranked with and responded to as’of 'the same dignity and binding obligation with the record in the other. The case of Sadler v. Robins, 1 Campbell, 253, was an action upon a decree of the High Court of Chancery in the Island of Jamaica, for a sum of money; “ first deducting thereout the full costs of the said defendants expended in the said suit, to be taxed by one pf the masters of the said court; and also deducting thereout all and every other payment which S. & R., or either of them, might on or before the 1st day of January, 1806, show to the satisfaction of the said master, they or either of them had" }, { "docid": "23262046", "title": "", "text": "unsuccessful appeal. This objection raises a more serious, question. The supersedeas bond was in the common form, conditioned that the appellant shall “prosecute its appeal to effect and answer all damages and costs, if it fails to make its jplea good.” It has long been settled that a bond in that form binds the surety, upon affirmance of a judgment or decree for the mere payment of money, to pay the amount of the judgment or decree. Catlett v. Brodie, 9 Wheat. 553. Rule 29 of this court — Rule 13, 5th C. C. A. — makes provision for a difference with respect to the bond,- between -a judgment or decree for money not otherwise secured, and cases “where the property in controversy necessarily follows the event of the suit, as in real actions, replevin,- and -in suits on mortgages.” It is not clear whether the purpose of the rule, in case of secured judgments or decrees, was merely to limit the amount of the penalty, or was also to affect the nature of the liability, so that the sureties would be hable to answer only for the costs, and damages actually ^resulting from the delay. We are, however, relieved from deciding this question; because the record discloses that after the issue of the execution complained of Pease paid the amount due “as Trustee for himself and the other stockholders of the People’s Light Company.” In other words', the record does not show that Pease paid the amount as surety in satisfaction of the deficiency judgment against, himself.. The payment by him may have been made “as trustee,” because before that time the corporation had been dissolved. • If this payment was made on behalf of the corporation, obviously Peasé could get no benefit from a reversal of the decree; and as the decree has been satisfied by the principal obligor the sureties are in no danger of further proceeding against themselves. On the facts appearing of record the decree is, therefore, Affirmed. Summary judgment was entered on appeal bonds in the following cases: White v. Prigmore, 29 Ark. 208;" }, { "docid": "22831388", "title": "", "text": "the discharge, there was no firing in the harbor or other act of hostilities, which prevented her discharge of the cargo or its reception by the consignees. But on the same page of the brief it is admitted that “ this question having been heard on the exception to the sufficiency of the defence, the question as to the truth of the allegations of the answer was not before the court.” And this is conclusively established by its opinions and decrees. The principal opinion shows that it took up, in the first instance, the questions of law raised by the exceptions • to the answer, because their determination might relieve the parties from the delay and expense of introducing proof. 35 U. S. App. 620. By the decree thereupon made, and set out in the record, the third exception, as well as the second, was sustained, upon the ground -that the article of the answer to which it related was “ insufficient in the law to constitute a defence; ” and the fourth exception was overruled. In short, the defences of the cesser clause and of vis major were both held to be insufficient as matter of law, so that no evidence in support of either of them was competent, and no evidence to contradict either was necessary or material. The only questions of fact, left open for the introduction of proofs, were those of payment and of accord and satisfaction, presented by the remaining article of the answer. That the Circuit Court of Appeals 'understood such to be the condition of the case is apparent from its supplemental opinion, after proofs had been taken, in which it observed that “ most of the questions arising upon this appeal have been disposed of by this court upon a former occasion, and it remains to be considered whether the defences of payment and accord and satisfaction are sustained by the proofs; ” and then proceeded, upon an examination of the proofs, to hold that those defences were not sustained as to the claim for demurrage, and to enter a decree for" }, { "docid": "4097400", "title": "", "text": "of the proceeds of the sale was “solely for the payment of money.” The appropriate final process for the execution of the decree, so far as it remained unexecut-ed when the order complained of was made, was such a writ of execution against the defendant as the motion sought to forbid the enforcement of. Equity rule 8 (198 Fed. xxi, 115 C. C. A. xxi). A part of the command of the mandate issued from this court to the trial court upon the affirmance of the latter’s decree was: “You, therefore, are hereby commanded that such execution and further proceedings be had in said canse as according to right and justice, and the laws of the United States, ought to be bad, the said writ of error [appeai ?] notwithstanding. ” Plainly it was competent for the court to issue against the defendant in the cause such an execution as was issued. And the surety’s submission to the court of the question as to his liability on the supersedeas bond conferred on the court the right to decide the question and to provide for the enforcement of its decision by proper process. As at the time that decision was rendered the unexecuted part of the decree which had been superseded was “solely for the payment of money,” and as it was for that amount only that execution against the surety was allowed to be enforced, the decree having already been satisfied in part by the application of the proceeds of the sale of the property subjected to a lien and ordered to be sold, the result of what the court did was to allow the execution of appropriate process against the surety to be proceeded with, to the end of coercing the payment by him of no more than the amount which the supersedeas bond obligated him to pay. A surety on the bond cannot sustain a complaint against action of the court having this effect only. It follows that the decrees presented for review by the two appeals first above mentioned as now pending are affirmed. The satisfaction of" }, { "docid": "22061370", "title": "", "text": "in the sum of five thousand one hundred and eighty-nine dollars and twenty-six cents, which is in full force and unsatisfied. Execution was duly issued on the same, and the marshal returned that he found no corporate property. Unable to enforce payment of his judgment, through the ordinary process of an execution, the plaintiff applied to the Circuit Court in which the judgment was recovered, for a mandamus to com pel the defendants to levy the tax as authorized by the people of the county at the time they voted to aid in the construction of the railroad and to issue the bonds. V. Principal defence stated in the return of the supervisors is, that they had been enjoined from levying the tax as prayed, by a prior decree of the State court, and the record shows that the State court, at the suit of a tax-payer of the county, issued an injunction perpetually enjoining the defendants from levying the special tax voted at the time the proposition to grant aid to the railroad was adopted. Want of jurisdiction in the Circuit Court was not alleged in the return, nor was any such ground assumed by the circuit judge who refused the writ. Experienced counsel, however, have made that point in this court, and it becomes the duty of the court to determine it before examining the merits. Jurisdiction is defined to be the power to hear and determine the subject-matter in controversy in the suit before the court, and the rule is universal, that if the power is conferred to render the judgment or enter the decree, it also includes the power to issue proper process to enforce such judgment or decree. Express determination of this court is, that the jurisdiction of a court, is not exhausted by the rendition of the judgment, but continues until that judgment shall be satisfied. Consequently, a writ of error will lie when a party is aggrieved in the foundation, proceedings, judgment, or execution of a suit in a court of record. Process subsequent to judgment is as essential to jurisdiction as pi'oeess" }, { "docid": "15246560", "title": "", "text": "court allowing said motion and quashing the said execution. 5th. Four written papers signed by Kennard, Howe & Prentiss, attorneys of record for the owjiers of the steamer Richmond in the proceedings in admiralty, showing payments made by the parties respectively in satisfaction of the decree of the Circuit Court against them, which papers are as follows: “U. S. Circuit Court. “ Sarah C. Shirley et ais. v. St’r Richmond. “Rec’d, New Orleang, July 3d, 1876, from Jules Tuyes, Esq., 'security on the bond given by libellants in the above cause to respond to the cross libel' filed by N. S. Green et al., claimants of the steamer Richmond, the sum of eleven hundred and sixty-six dollars in full satisfaction of decree rendered against him in above entitled cause, and I hei*eby subrogate him to the rights of N. S. Green and owners of the st’r Richmond. (Signed) “ Kennard, IIowe & Prentiss, “ Att'ys for Owners of Iiiohmond,?'’ “ Received, New Orleans, Sept. 28th, 1876, from Home Ins. Co., fifteen hundred dollars in full .of all claims against said company arising out of a certain bond given in case No. 7057, IT. S. Circuit Court (admiral appeal), entitled Sarah C. Shirley & others v. St’r Richmond & others, and Merchants’ Mutual Ins. Co. v. St’r Sabine & others (consolidated); said bond, signed for $2000 by Alf. Moulton for the Home Co.*, being given to secure the payment of whatever judgment the Richmond and owners, cross libellants, should obtain against the Sabine owners. The above sum is in full settlement as a compromise of the Home Ins. Co.’s liability. (Signed) “ Kennard, IIowe & Prentiss, “AtGys for liiehmoncl & Owners.” “ H. S. Circuit Court. “ Sarah C. Shirley et ais. v. St’r Richmond. “Received, New Orleans, July 3d, 1876, from the New ■ Orleans Insurance Association, for account of Mr. C. Cavaroc, security on the bond given by libellants in the above .cause to respond to the cross libel filed by N. S. Green & al., clahnants of the st’r Richmond, the sum of $1166.66 dollars, in full satisfaction" }, { "docid": "11555877", "title": "", "text": "each was entitled. The decree would necessarily have taken the form of a money decree, or essentially a judgment in favor of each of the plaintiffs to whom an award would have been made, and the amount of the award would have been controlled by the extent of the bond holdings of each. It would have been in essence a judgment of each bondholder against the defendants. The accidental circumstance of which we speak was the fact that the defendants, in satisfaction of all the judgments against them, paid the total sum into court. The legal situation is precisely the same as if the money in court had been raised by execution process. A further legal consequence is that each plaintiff was entitled to take out of court the sum to which he or she was entitled, and incidentally this was measured by each plaintiff’s proportionate holdings of the bonds. In this sense each bondholder was entitled to a share in the fund, but accurately speaking each plaintiff did not share in a common fund, but each was entitled to receive the amount of the judgment each respectively had recovered. The share of each was not strictly a share in the fund, but was measured by what was the arithmetical equivalent of such share. It follows that the legal situation presented is this: A large number of creditors have each secured judgments against common defendants. The defendants, in satisfaction of the judgments, have paid into court a total sum, which is the aggregate amount of all the judgments. Some of the plaintiffs have come forward to demand and receive that part of the fund which represents their judgments. Others of the plaintiffs have not appeared. The question presented, then, is: What right have those who have appeared and who have received payment of their judgments to demand the moneys which belong to those who have not appeared? We are unable to see that any such right exists. The only plausible basis for it is that the plaintiffs who have appeared, having judgment against the defendants, have a right to satisfaction" }, { "docid": "15246563", "title": "", "text": "& Prentiss, who were the attorneys for the steamer Richmond; that he received the sums of money in the said papers severally mentioned, and that he executed the said papers under plenary authority from. the' plaintiffs to make the compromise. The plaintiffs then offered to prove by the same witness that the proctors for the owners of the steamer Sabine opened a negotiation with him to compromise said case, and offered to pay the sum of $5000 for a compromise of the litigation then pending between the parties, and threatened an appeal from the decree and judgment of the Circuit Court, which had been rendered in favor of the owners of the steamer Richmond, unless said money should be accepted and said compromise effected; and that for the pur pose of ending said litigation lie accepted said money and compromised said case; that it was expressly agreed by the parties to that cause that said litigation was then ended, and that no appeal should be taken from the said decree and judgment of the Circuit Court. To this offer and evidence the defendants objected on the ground that the papers in evidence constituted a contract in writing between the parties, and that no parol evidence impeaching them could be received. The court sustained the objection, and refused to hear the evidence, to which ruling the plaintiffs excepted. It is not important to determine what effect^ if any, should be given to the proceedings and order of the Circuit Court on-the motion of the defendants Tuyes and Moulton to quash the execution issued on the decree against them. It does not appear from the record of these proceedings on what .ground the judgment of the court was placed, and 4n its terms it is not final, as it merely quashes the particular writ of execution then in the marshal’s hands, and directs him to take no further proceedings thereunder. If it had been based upon a finding of a payment of the decree, or of an accord -and satisfaction-equivalent to payment, and had directed satisfaction' of the decree to be entered" }, { "docid": "22477548", "title": "", "text": "plaintiffs contend that the determination of the amount and validity of the tax is to be treated as an isolated and distinct proceeding, not as a step in the process of determining and collecting the tax imposed. It is true that if the executors fail to pay the tax adjudged to be due, New Jersey must take further proceedings to compel the executors to discharge their obligation. This is so even if the executors do not avail themselves of their existing right to appeal to the Court of Errors and Appeals, or if upon such appeal that court affirms the judgment of the Supreme Court. But it is not true that such further proceeding would be, in legal contemplation, independent action. Upon dismissal of the certiorari, the cause was remanded to the Prerogative Court. By the appeal of the executors, it had acquired jurisdiction not only to determine the tax due, but to take appropriate proceedings for its collection. Its jurisdiction continues until its decree is satisfied. The further proceedings required to compel satisfaction of the decree establishing liability for the tax do not differ in essence from those required to satisfy any judgment for a debt recovered at law or any decree in chancery for the payment of money. The procedure of the Prerogative Court subsequent to a decree follows that of the equity courts, which had, ordinarily, no power to enforce their decrees except by citation for contempt. Chapter 148 of the laws of 1900, which provides, as a means of collection, that the Prerogative Court shall issue a citation if it appears that a tax found to be due has not been paid, is declaratory of the existing procedure. Section 21 of the Transfer Inheritance Tax Act provides that the lien created by docketing a decree “ shall have the same effect as a lien by judgment, and execution shall issue thereon according to the rules and practice appertaining to other judgments.” Fourth. The prohibition of § 265 is against a stay of “ proceedings in any court of a State.” That term is comprehensive. It includes" }, { "docid": "15246564", "title": "", "text": "Court. To this offer and evidence the defendants objected on the ground that the papers in evidence constituted a contract in writing between the parties, and that no parol evidence impeaching them could be received. The court sustained the objection, and refused to hear the evidence, to which ruling the plaintiffs excepted. It is not important to determine what effect^ if any, should be given to the proceedings and order of the Circuit Court on-the motion of the defendants Tuyes and Moulton to quash the execution issued on the decree against them. It does not appear from the record of these proceedings on what .ground the judgment of the court was placed, and 4n its terms it is not final, as it merely quashes the particular writ of execution then in the marshal’s hands, and directs him to take no further proceedings thereunder. If it had been based upon a finding of a payment of the decree, or of an accord -and satisfaction-equivalent to payment, and had directed satisfaction' of the decree to be entered of record, as it clearly had power to do in such a proceeding, the judgment would have been conclusive as a defence to the bond in suit, notwithstanding the summary character of the proceeding. United States v. McLemore, 4 How. 286; Perkins v. Fourniquet, 14 How. 328. But the introduction of the record of these proceedings as evidence did not prejudice the plaintiffs in error, for the other evidence in the cause; and which no doubt is the same on which the Circuit Court acted in that proceeding, shows an accord and satisfaction equivalent to a payment of the decree, and, in equity, to a satisfaction and discharge. It is so expressed in each of the papers executed at the time, which, although they are in one sense receipts acknowledging the payment of money, are also written evidence of an executed agreement by which the money was received in full payment and settlement of the decree and of the bond given for its payment now sued on. It is shown that the attorneys for the" }, { "docid": "22831389", "title": "", "text": "overruled. In short, the defences of the cesser clause and of vis major were both held to be insufficient as matter of law, so that no evidence in support of either of them was competent, and no evidence to contradict either was necessary or material. The only questions of fact, left open for the introduction of proofs, were those of payment and of accord and satisfaction, presented by the remaining article of the answer. That the Circuit Court of Appeals 'understood such to be the condition of the case is apparent from its supplemental opinion, after proofs had been taken, in which it observed that “ most of the questions arising upon this appeal have been disposed of by this court upon a former occasion, and it remains to be considered whether the defences of payment and accord and satisfaction are sustained by the proofs; ” and then proceeded, upon an examination of the proofs, to hold that those defences were not sustained as to the claim for demurrage, and to enter a decree for the libellants in accordance with its former opinion. 62 U. S. App. 368. . The questions of payment, and of accord and satisfaction, need no extended notice. They are pure questions of fact, depending on conflicting evidence and on the peculiar circumstances of the case; upon which, had they been the only questions presented by the record, a writ of certiorari would not have been granted; which appear to this court, upon examination of the proofs, to have been rightfully decided by the Circuit Court of Appeals; and which it would serve no useful purpose to discuss. But for the reasons above stated, in considering the effect of the defence of vis major, The decrees of the Circuit Court of Appeals and of the District Court are reversed, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court. Mr. Justice McKenna was not present at the argument and took no part in the decision of this case." }, { "docid": "15246557", "title": "", "text": "Cavaroc, Tuyes, and Chiapellá, for the sum of $7292.60, with interest at'five per cent, per annum from March 11, 1876, and costs. Motions'were made on May 3, 1881, on behalf of Moulton and Tuyes, defendants in that' execution, to quash the samé on the ground that the said decree, as against each of the said suretiés,' had been satisfied and discharged. These motions came on to be heard June 16, 1881, on consideration whereof they were allowed, and the writ of fieri facias quashed, and the marshal ordered to desist from any further proceedings thereunder. The plaintiffs in error thereafter, on the 7th of March, 1882, being’ the owners of the steamboat Richmond or their representatives, commenced this action against the defendants in error, as parties to the appeal bond given for the prosecution of the appeal from the original decree of' the District Court to the Circuit Court. The- defendants rely upon two defences: 1st, That the matters in controversy were- finally adjudged in their favor by the Circuit Court on the motion to quash • the execution issued-against them on its decree, so as to constitute an estoppel upon the principle of res judicata ; 2d, That'the decrees of the Circuit Court against them respectively were discharged'by payments made and accepted in full satisfaction thereof, by way of compromise, prior to the appeal taken by the other parties to the Supreme Court.of the United' States. The. cause came on to be heard before the Circuit Court on .May 29, 1883, when the parties, having duly waived the intervention of a jury, submitted the cause to the court; on .consideration whereof, the court rendered judgment in favor of the defendants. The object of the present writ of error iUlo reverse that judgment. It appears from the bill of exceptions taken on the trial that the plaintiffs below, to maintain the issues on their part/'put in as evidence in said cause the appeal bond, decree and final judgment, and the mandate of the Supreme Court of the United States, as the same are described and-referred to in the plaintiffs’ petition," }, { "docid": "15246567", "title": "", "text": "agreement to extinguish the liability of the defendants by reason of the original decree, and .so to satisfy the obligation ,pf the bond on 'which they are sued. The right of the defendants to appeal from the decree, and the fact that they had declared their intention to do so, created such a dispute in respect to their liability as made it a proper subject of compromise. A compromise was made and fully performed on their part; they paid the money, which was received in payment of the decree, and took no appeal. It is not now open to the plaintiffs in error to treat this payment merely as a credit on account and hold the defendants to their original liability. United States v. Child 12 Wall. 232; Oglesby v. Attrill, 105 U. S. 605. The technicality difficulty, that there can be no satisfaction and discharge of a judgment or decree, except by matter of record, Mitchell v. Hawley, 4 Denio, 414; S. C. 47 Am. Dec. 260, cannot be interposed. At common law actual payment of a debt of record could not be pleaded in bar of an action for the recovery of the debt. This has been changed by statute both in England and in this country, and no reason can be assigned why an accord and satisfaction should not have the same effect. In. the present case the action is not on the decree, but on the appeal bond, and for the recovery of damages arising from the breach, as to/which matters in pais, such as payment or accord and satisfaction, were always a good plea. Judgment affirmed." }, { "docid": "15246565", "title": "", "text": "of record, as it clearly had power to do in such a proceeding, the judgment would have been conclusive as a defence to the bond in suit, notwithstanding the summary character of the proceeding. United States v. McLemore, 4 How. 286; Perkins v. Fourniquet, 14 How. 328. But the introduction of the record of these proceedings as evidence did not prejudice the plaintiffs in error, for the other evidence in the cause; and which no doubt is the same on which the Circuit Court acted in that proceeding, shows an accord and satisfaction equivalent to a payment of the decree, and, in equity, to a satisfaction and discharge. It is so expressed in each of the papers executed at the time, which, although they are in one sense receipts acknowledging the payment of money, are also written evidence of an executed agreement by which the money was received in full payment and settlement of the decree and of the bond given for its payment now sued on. It is shown that the attorneys for the owners of the Richmond, who signed those receipts, were fully authorized to do so. The Contract in each case is with the individual defendant for a satisfaction of the decree rendered against him severally. The payment and receipt of the money in pursuance- of the agreement amounted to a release of errors, so that there was a valuable consideration to sustain the contract whereby a less sum than the amount due by the decree was received in full payment. The offer on the part of the plaintiffs in error to prove by parol , another condition of the' contract, viz., that the other defendants, the owners of the steamboat Sabine, and the intervenors 'and other parties, the several insurance companies who had become parties to the appeal, should not take and perfect an appeal to the Supreme Court of the United States, was rightly rejected, because such parol evidence necessarily varied and contradicted the written agreement of the parties. The papers in evidence established a complete accord and satisfaction -fully performed, in pursuance of an" }, { "docid": "11555876", "title": "", "text": "which there are common claimants, because of a lien or otherwise, upon the property which has by execution been converted into money. There are many such illustrations. The power of the court is clear enough, because it is one of necessity. The duty of the court to exercise this power in the case of such a common fund is likewise sufficiently clear. We are not convinced, however, that the present fund is of the kind or character to which these principles of law apply. The possession of the fund here is merely incidental to, and in a sense an accident of, the original proceeding. This was essentially a süit by the original plaintiff against the defendants named, in which she recovered a judgment. The proceeding, being in equity, was unhampered by the forms and restrictions to which it would have been subjected as a suit at law. It was in consequence expanded, so that other suitors, circumstanced as was the plaintiff, might be joined with her in that suit and recover the judgment to which each was entitled. The decree would necessarily have taken the form of a money decree, or essentially a judgment in favor of each of the plaintiffs to whom an award would have been made, and the amount of the award would have been controlled by the extent of the bond holdings of each. It would have been in essence a judgment of each bondholder against the defendants. The accidental circumstance of which we speak was the fact that the defendants, in satisfaction of all the judgments against them, paid the total sum into court. The legal situation is precisely the same as if the money in court had been raised by execution process. A further legal consequence is that each plaintiff was entitled to take out of court the sum to which he or she was entitled, and incidentally this was measured by each plaintiff’s proportionate holdings of the bonds. In this sense each bondholder was entitled to a share in the fund, but accurately speaking each plaintiff did not share in a common fund," }, { "docid": "15246566", "title": "", "text": "owners of the Richmond, who signed those receipts, were fully authorized to do so. The Contract in each case is with the individual defendant for a satisfaction of the decree rendered against him severally. The payment and receipt of the money in pursuance- of the agreement amounted to a release of errors, so that there was a valuable consideration to sustain the contract whereby a less sum than the amount due by the decree was received in full payment. The offer on the part of the plaintiffs in error to prove by parol , another condition of the' contract, viz., that the other defendants, the owners of the steamboat Sabine, and the intervenors 'and other parties, the several insurance companies who had become parties to the appeal, should not take and perfect an appeal to the Supreme Court of the United States, was rightly rejected, because such parol evidence necessarily varied and contradicted the written agreement of the parties. The papers in evidence established a complete accord and satisfaction -fully performed, in pursuance of an agreement to extinguish the liability of the defendants by reason of the original decree, and .so to satisfy the obligation ,pf the bond on 'which they are sued. The right of the defendants to appeal from the decree, and the fact that they had declared their intention to do so, created such a dispute in respect to their liability as made it a proper subject of compromise. A compromise was made and fully performed on their part; they paid the money, which was received in payment of the decree, and took no appeal. It is not now open to the plaintiffs in error to treat this payment merely as a credit on account and hold the defendants to their original liability. United States v. Child 12 Wall. 232; Oglesby v. Attrill, 105 U. S. 605. The technicality difficulty, that there can be no satisfaction and discharge of a judgment or decree, except by matter of record, Mitchell v. Hawley, 4 Denio, 414; S. C. 47 Am. Dec. 260, cannot be interposed. At common law actual" }, { "docid": "22160253", "title": "", "text": "supplemental bill was filed making other parties defendants, and on June 14 an order fro confesso was entered against' all of the defendants in the original and supplemental bills. On April 23 an order was entered' directing all creditors to file their claims by petition, and on Octobei\\20 nearly every creditor had appeared and filed his petition. On July 17 an order was entered appointing a special master to report on the claims of creditors and marshal the liens thereof. Up to the 23d of November, the appellant made no opposition to the proceeding, and apparently assented to the action which was being taken by the creditors, looking to the appropriation of its property to the payment of their claims. On that day a change took place in its attitude towards this .suit. It went into the state courts and confessed judgment in behalf of several of its creditors; and on the 24th deposited in the registry of the Circuit Court money enough to pay off the judgment in favor of the Concentrating Company, and filed two pleas — one setting forth the fact of payment, and the other that the original and supplemental bills disclosed that the complainants had a plain, adequate and complete remedy at law; and that therefore the court, sitting as. a court of equity, had no jurisdiction; and praying a dismissal of the bills. Subsequently, on December 18, it filed a motion to' discharge the receiver. This motion was overruled, the pleas seem to have been -ignored, the master reported upon the claims presented, and on February 23, 1886, the court entered a decree which, finding the indebtedness to be as stated by the master, also what property was in possession of the receiver, decreed that upon default in the payment of those debts the property be sold in satisfaction thereof. From this decree the defendant has brought this appeal; and its principal contention is, that the Circuit Court had no jurisdiction whatever over the subject matter of the suit, because it appeared upon the face of the bills, original and supplemental, that the complainants" }, { "docid": "13645297", "title": "", "text": "satisfaction thereof; and. that the other defendant's be decreed to be justly and severally liable for the amount of the said debt, and to pay on account thereof so much of the unpaid subscription of each share of the stock in said corporation, held by them severally, as shall be necessary to .pay the same, and for general relief. A final decree was rendered against the company and several of its stockholders, co-defendants, for the payment of the amount due on account of the said bond, for which execution was awarded, and a decree foreclosing the equity of redemption in the corporate property described in the bill, on which the bond is declared to be á lien, and directing its sale. To review'this decree the defendants below prosecute the present appeal. ■ Several questions, arising upon the pleadings and evidence, and embodying the errors assigned upon the decree, will be considered in their order. - ' I. The first of these relates to the jurisdiction of the court. ' It is objected in the first place that the complainant is the assignee of a chose in action on which no suit could have been maintained in the Circuit Court by his assignor, and that consequently he is within' the prohibition of the first section of the act of March 3, 1875, e. 137.- The answer to this objection is,, that the obligation sued on is a negotiable promissory note, and is, therefore, excepted out of the prohibition relied on. It is true that the bond, as originally executed^ was • payable to Gayer, receiver, simply, and was not negotiable; but the‘subsequent indorsement was a new and complete contract, upon a distinct and sufficient consideration, and being payable to bearer, is negotiable by delivery merely. It is a negotiable note within the meaning of the law merchant, and according to the law of the place of .the contract, notwithstanding it is an instrument under seal. Langston v. South Carolina Railroad Co., 2 S. C. 248; Bank v. Railroad Company, 5 id. 156; Bond Debt Cases, 12 id. 200, 250. It is" }, { "docid": "15246558", "title": "", "text": "quash • the execution issued-against them on its decree, so as to constitute an estoppel upon the principle of res judicata ; 2d, That'the decrees of the Circuit Court against them respectively were discharged'by payments made and accepted in full satisfaction thereof, by way of compromise, prior to the appeal taken by the other parties to the Supreme Court.of the United' States. The. cause came on to be heard before the Circuit Court on .May 29, 1883, when the parties, having duly waived the intervention of a jury, submitted the cause to the court; on .consideration whereof, the court rendered judgment in favor of the defendants. The object of the present writ of error iUlo reverse that judgment. It appears from the bill of exceptions taken on the trial that the plaintiffs below, to maintain the issues on their part/'put in as evidence in said cause the appeal bond, decree and final judgment, and the mandate of the Supreme Court of the United States, as the same are described and-referred to in the plaintiffs’ petition, and also the amount of costs taxed' in the cause, amounting, to the sum of $15.93.45, and rested their case. Thereupon the defendants, to maintain the issues on their part/' put in evidence, among other matters, the following: 1st. The decree rendered by the District Court against the owners of the Sabine in favor of the cross, libellants, the owners of the Richmond, showing the amount decreed against the sureties on the bond of $8000 to be .the sum of $2000 each. 2d. The decree of the Circuit Court in the same cause in the amount of $1392.60 in sólido against the owners of the steamer Sabine, and against the sureties on the original bond for $8000 in the sum of $2000 each. 3d. The petition and allowance of the appeal from that decree to the Supreme Court of the United States, together with the appeal bond for the prosecution thereof. 4th. The record of the proceedings in the Circuit Court on the motion to quash the execution, together with the judg ment of the" } ]

[ { "docid": "13357874", "title": "", "text": "first hearing six months before to the effect that after his return insured was .unable to talk about what happened in Baltimore. It is not consistent with the telegram sent to the shirt company directing that goods be not shipped under insured’s orders, or with the telegram advising as to insured’s death and the arrangements for his funeral. And, if it is to be taken as true, we cannot understand why the brothers of insured, in attempting to obtain the return of the policies, should have failed to allude to the fraud which they claim had been practiced upon him. If the question of fraud were before us to be heard de novo, we do not see how we could decide it otherwise than did the judge below on the record as presented. We are not hearing the question de novo, however, but upon appeal; and, in such case, the rule is well settled that, we will not disturb the findings of the District Judge, who saw and heard the witnesses, unless satisfied that they are clearly wrong. Wolf Mineral Process Corporation v. Minerals Separation North American Corporation (C.C.A.4th) 18 F.(2d) 483; Virginia Shipbuilding Corporation v. United States (C.C.A.4th) 22 F.(2d) 38; Suburban Improvement Co. v. Scott Lumber Co. (C.C.A.4th) 67 F.(2d) 335, 90 A.L.R. 330; Miller v. Pyrites Co. (C.C.A.4th) 71 F.(2d) 804; Sherman v. Bramham (C.C.A.4th) 78 F.(2d) 443. Under this rule there can be no question but that the finding that there was no fraud must be affirmed. Coming to the second point, the contention of appellants is that all of the instruments executed on June 19th should be construed together as one instrument; that, when they are so construed, the consideration for the execution of the notes and the assignment of th'e insurance policies is shown to be the sale of a bill of merchandise; that testimony showing any other or different consideration should be excluded; and that, when such testimony is excluded from consideration, we have a transfer of policies made in consideration of a sale of goods which were never delivered and which there" } ]

[ { "docid": "5566210", "title": "", "text": "the Master’s first, or second report. This involves the propriety of the action of the District Court in sustaining exceptions to the first report, In other words, was the court justified in its refusal to accept findings of fact as made by a Master? Rule 53(e), Paragraph (2), of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides : “In an action to be tried without a jury the court shall accept the master’s findings of fact unless clearly erroneous.” The language thus employed leaves no room for argument that the District Court is bound by such findings “unless clearly erroneous.” The rule binds the District Court to accept findings of a Master just as Rule 52(a) binds this court to accept findings of a District Court. In fact, the language of the two rules is quite similar. The latter rule provides: “Findings of fact shall not be set aside unless clearly erroneous.” These rules promulgate no new principle of procedure, as such principle has long been recognized by the courts. It was aptly stated in Adamson v. Gilliland, 242 U.S. 350, on page 353, 37 S.Ct. 169, 170, 61 L.Ed. 356, where the court said: “ * * * the case is preeminently one for the application of the practical rule that so far as the finding of the master or judge who saw the witnesses ‘depends upon conflicting testimony or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, it must be treated as unassailable.’ * * * ” Other cases where similar rules and statutes have been thus construed are: Davis v. Schwartz, 155 U.S. 631, 636, 15 S.Ct. 237, 39 L.Ed. 289; In re Mendota Building Co., 7 Cir., 92 F.2d 644, and Carter Oil Co. v. McOuigg, 7 Cir., 112 F.2d 275. We can recall to mind no case where this rule may be more appropriately applied than in the instant situation. Here we have a difficult and involved proceeding in accounting. In compliance with the Master’s subpoena, an account was stated by the defendant." }, { "docid": "22468138", "title": "", "text": "S.Ct. 169, 61 L.Ed. 356; Wittmayer v. United States, 9 Cir., 1941, 118 F.2d 808, 810; Gates v. General Casualty Company of America, 9 Cir., 1941, 120 F.2d 925, 927; Augustine v. Bowles, 9 Cir., 1945, 149 F. 2d 93, 96; and see “Findings in the Light of the Recent Amendments to the Federal Rules of Civil Procedure”, 8 F.R.D. 271, 288-291, and cases cited in footnotes 6-9. The Supreme Court, in a very recent case, United States v. United States Gypsum Company, 1948, 333 U.S. 364, 68 S.Ct. 525, has stated the scope of this provision in this manner: “It was intended, in all actions tried upon the facts without a jury, to make applicable the then prevailing equity practice. Since judicial review of findings of trial courts does not have the statutory or constitutional limitations [on judicial review] of findings by administrative agencies or by a jury, this Court may reverse findings of fact by a trial court where ‘clearly erroneous.’ The practice in equity prior to the present Rules of Civil Procedure was that the findings of the trial court, when dependent upon oral testimony where the candor and credibility of the witnesses would best be judged, had great weight with the appellate court. The findings were never conclusive, however. A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Company, 1948, 333 U.S. 364, 394, 68 S.Ct. 525, 541. This interpretation is not a new departure. It merely stresses, as courts of appeal (including this court), have done before, that findings are to be given the effect which they formerly had in equity. Equity Rule 70Y- See, Equitable Life Assurance Society v. Irelan, 9 Cir., 1941, 123 F.2d 462, 464, and cases cited in footnotes 1 and 2; and see, Guilford Construction Co. v. Biggs, 4 Cir., 1939, 102 F.2d 46; United States v. Still, 4 Cir., 1941, 120 F.2d 876, 878; Katz Underwear Co. v." }, { "docid": "3208952", "title": "", "text": "unless unsupported by substantial evidence, unless against the clear weight of the evidence or unless induced by an erroneous view of the law. Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., in pertinent part provides: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” The plaintiffs urge that findings based upon uncontradicted testimony, where credibility of witnesses is not seriously questioned or involved, are not within the contemplation of the rule, and that this principle is applicable here. In Jersey Ins. Co. of New York v. Heffron, 242 F.2d 136 (4th Cir. 1957), the appeal was from a finding that a house collapse was an explosion within the coverage of a fire insurance policy. Judge Sobeloff, speaking for this court, at page 139, said: “* * * While the Court of Appeals has broader powers in reviewing a District Judge’s findings of fact than in reviewing the findings of a jury, * * * it will not disturb his findings merely because it may doubt their correctness. It is required that the Court of Appeals be satisfied that the District Judge is clearly in error before it will set his findings aside. * * * ” The same rule has also been applied to inferences to be drawn from proven facts. In Thompson v. United States, 268 F.2d 426 (4th Cir. 1959), this court stated: “ * * * The sole question is whether the facts require an inference that the United States waived the defaults of its contractor with respect to the contract * * *. That may have been a permissible inference, but the facts as found and recited in the opinion of the District Court do not require it. The factual question was settled by the findings of the District Court which we must accept.” The transcript of the testimony covers nearly three hundred pages. We shall advert to pertinent portions of the evidence in our discussion of certain findings and" }, { "docid": "5566211", "title": "", "text": "aptly stated in Adamson v. Gilliland, 242 U.S. 350, on page 353, 37 S.Ct. 169, 170, 61 L.Ed. 356, where the court said: “ * * * the case is preeminently one for the application of the practical rule that so far as the finding of the master or judge who saw the witnesses ‘depends upon conflicting testimony or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, it must be treated as unassailable.’ * * * ” Other cases where similar rules and statutes have been thus construed are: Davis v. Schwartz, 155 U.S. 631, 636, 15 S.Ct. 237, 39 L.Ed. 289; In re Mendota Building Co., 7 Cir., 92 F.2d 644, and Carter Oil Co. v. McOuigg, 7 Cir., 112 F.2d 275. We can recall to mind no case where this rule may be more appropriately applied than in the instant situation. Here we have a difficult and involved proceeding in accounting. In compliance with the Master’s subpoena, an account was stated by the defendant. Much labor and thought was given to the matter by an experienced Master, as is amply disclosed by a study of the first report rendered by him. He heard, saw and observed the witnesses and was in a better position to judge of their credibility and the weight to be given their testimony than either the District Court or this court, neither of which has. had such an opportunity. To set aside his findings “unless clearly erroneous” is not only contrary to the rule quoted and the accepted practice, but amounts to a trial de novo by the reviewing court with no assurance that any better or more accurate results could be achieved. That brings us to the question as to 'whether the findings of the Master were “clearly erroneous.” A careful examination of the oral testimony, in addition to the mass of documentary evidence, -convinces us not only that the findings of the Master were not “clearly erroneous” but that they were well grounded. It would prolong this opinion unduly to relate in detail" }, { "docid": "22468136", "title": "", "text": "by the Tax Court. That Court, on April 5, 1948, found that the proceeds of the transaction constituted income and that no part of it was chargeable to transfer of good will. It assessed a deficiency in excess profits taxes of $124,073.01 for the year 19-13. This is a petition to review the order. In the main, the issue is: Did the sale of the inventory on hand, the lease of the premises, and the transfer ■of the. enumerated accessories constitute, in whole or in part, a capital transaction? II Scope of Review Consideration of the questions involved turns upon the scope of our review of the decision of the Tax Court. By recent statutory enactment, Internal Revenue Code, Section 1141(a), as amended by Section 36, Public Law 773, 80th Congress, Second Session, 26 U.S. C.A. § 1141(a), it is decreed that this Court’s jurisdiction to review shall be “in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury”. This reads into the Internal Revenue Code the provision of the Federal Rules of Civil Procedure that: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. In the application of this rule and of the equity rule, which prior to the adoption of the Federal Rules of Civil Procedure governed review of equity cases only and which the rules made of universal application in all civil cases, United States v. United States Gypsum Company, 1948, 333 U.S. 364, 394, 68 S.Ct. 525, reviewing courts have emphasized the importance of the conclusions of the trial judge which derive from his opportunity to pass upon the credibility of the witnesses. And they have declined to resolve a conflict in the testimony of witnesses their own way. Davis v. Schwartz, 1895, 155 U.S. 631, 636, 15 S.Ct. 237, 39 L.Ed. 289; Adamson v. Gilliland, 1917, 242 U.S. 350, 353, 37" }, { "docid": "13501782", "title": "", "text": "court is not bound by the trial judge’s findings of fact, it is equally true that the appellate court ought not to disturb such findings, -especially where the evidence is conflicting and the credibility of witnesses is involved, unless it appears that the trial judge was clearly wrong. Hughes Federal Practice, Sections 5639, 5425; La Abra Silver Mining Co. v. United States, 175 U.S. 423, 20 S.Ct. 168, 44 L.Ed. 223; Rosenthal et al. v. New York Life Ins. Co., 8 Cir., 99 F.2d 578, 582; Colby v. Riggs Nat. Bank, 67 App.D.C. 259, 92 F.2d 183, 199, 114 A.L.R. 1065; Illinois Watch Case Co. et al. v. Hingeco Mfg. Co., Inc., et al., 1 Cir., 81 F.2d 41; New York Life Ins. Co. v. Simons et al., 1 Cir., 60 F.2d 30; American Rotary Valve Co. v. Moorhead, 7 Cir., 226 F. 202; Cf. Rule 52(a) New Federal Rules of Civil Procedure for the District Courts, 28 U.S.C.A. following section 723c. And where the credibility of witnesses is a determinative factor in arriving at findings of fact, as was the case here, the reviewing court will not usually upset those findings made by the judge who has had the opportunity of seeing and hearing the wit nesses testify. Moore v. Ford Motor Co., 2 Cir., 43 F.2d 685; Fuller et al. v. Reed et al., 1 Cir., 249 F. 158. In the instant case, after a complete review of the evidence, we cannot find any warrant for reaching a conclusion that the lower court was wrong in its findings of fact. Nor was the court in error in its conclusions of law that the policies were voidable at the option of the Insurance Company, in view of its findings of facts, unless that question is concluded by the two-year incontestible clause. The principles laid down in the case of Sakallaris v. New York Life Insurance Company, 134 Me. 91, 181 A. 669, appear to be decisive of the questions here involved. In that case an action was brought to recover on a life insurance policy issued by an insurance" }, { "docid": "12845458", "title": "", "text": "the deer herd was severely injuring the Forest and Game Preserve: a study of the evidence leads us to the conclusion that the judge below was clearly right in his finding of fact, that the land, forest and vegetative cover comprising said Game Preserve was being severely damaged by the deer herd. The evidence on behalf of the plaintiff on this question was much more persuasive than that offered on behalf of the defendants and the reasons given for the conclusions reached by tha> plaintiff’s witnesses were much more convincing than those given by defendants’ witnesses. Findings of a trial court on questions of fact will not be set aside unless clearly erroneous. Federal Rules of Civil Procedure, Rule 52(a), 28 U.S.C.A. following section 723c. Guilford Const. Co. v. Biggs, 4 Cir., 102 F.2d 46. As to the second question: whether, the fact being established that the deer herd was damaging the Game Preserve, the United States, without regard to State Laws, may protect its property from such damage, we are of the opinion, under the circumstances here presented, that the plaintiff has that right. Having purchased the lands in question, with the consent of the State of North Carolina, and having been encouraged to go ahead with the project of the National Forest, the right of the plaintiff to protect its lands and property from severe damage, cannot be doubted. On this point we consider the decision of the Supreme Court in Hunt v. United States, 278 U.S. 96, 49 S.Ct. 38, 73 L.Ed. 200, as controlling the issues here. In that case the Court said: “The direction given by the Secretary of Agriculture was within the authority conferred upon him by act of Congress. And the power of the United States to thus protect its lands and property does not admit of doubt, Camfield v. United States, 167 U.S. 518, 525, 526, 17 S.Ct. 864, 42 L.Ed. 260; Utah Power & Light Co. v. United States, 243 U.S. 389, 404, 37 S.Ct. 387, 61 L.Ed. 791; McKelvey v. United States, 260 U.S. 353, 359, 43 S.Ct. 132, 67" }, { "docid": "11493974", "title": "", "text": "PARKER, Circuit Judge. This is an appeal in a case instituted under R.S. § 4915, 35 U.S.C.A. § 63, by the Minnesota Mining and Manufacturing Company, assignee of one Swenson, to establish priority of right with respect to the invention embodied in patent No. 1,954,778, issued to Ernest H. Nichols, and to have patent issued to plaintiff embodying eight of the claims of that patent. In interference proceedings instituted in the Patent Office, priority was accorded Nichols, and patent was issued to him on application filed Nov. 1, 1932. Plaintiff relies upon the production by Swenson, several months prior to this application, of the product covered by the patent and manufactured in accordance with its process claims. The Patent Office record was before the judge below and was considered by him in connection with further testimony of Swenson, additional expert testimony and evidence of experiments conducted under the court’s direction. He properly aoplied the rule of Morgan v. Daniels, 153 U.S. 120, 14 S.Ct. 772, 38 L. Ed. 657, to the effect that the testimony must carry thorough conviction before the court would be justified in setting aside the decision of the Patent Office, but found that the additional evidence brought out the issues much more clearly thaii had theretofore been done, and held that in the light thereof Swenson was clearly shown to have priority. Minnesota Mining & Manufacturing Co. v. Nichols, D. C., 28 F. Supp. 105. We review such findings of the District Judge, just as in other cases, under the rule that they must be accepted by us unless clearly erroneous. Rule 52(a) of the Rules of Civil Procedure, 28 U.S.C. A. following section 723c; United States v. United States Shoe Machinery Co., 247 U. S. 32, 41, 38 S.Ct. 473, 62 L.Ed. 968; Adamson v. Gilliland, 242 U.S. 350, 37 S.Ct. 169, 61 L.Ed. 356; Wolf Mineral Process Corp. v. Minerals Separation N. A. Corp., 4 Cir., 18 F.2d 483, 486. The invention in issue relates to glazed granules for use in the manufacture of composition roofing and the process of making these granules. The" }, { "docid": "13701729", "title": "", "text": "I think that was correct as he told it, yes. “Q. You know Mr. Chester Taylor? A. Yes. * * * “Q: Do you remember the conversation that he testified to? You heard it? A: I don’t remember the conversation, no. “Q. Would you say that you didn’t say that conversation? A. No, I wouldn’t. I wouldn’t, no. I don’t know why I would have, but then if he said I did, we will give him the benefit of the doubt.” The findings of the trial Court fall within the familiar rule, that where based upon conflicting evidence they are presumptively correct, and unless some obvious error of law, or mistake of fact, has intervened, they will be permitted to stand. Silver King Coalition Mines Co. v. Silver King C. M. Co., 8 Cir., 204 F. 166, 177, Ann.Cas.1918B, 571. The provisions of the new procedural rules that the findings of fact of the trial judge are to be accepted on appeal unless clearly wrong (Rule 52(a), 28 U.S. C.A. following section 723c), is but the formulation of a rule long recognized and applied by courts of equity. Guilford Const. Co. v. Biggs, 4 Cir., 102 F.2d 46, 47. As was said by Mr. Justice Holmes in Adamson v. Gilliland, 242 U.S. 350, 353, 37 S.Ct. 169, 170, 61 L.Ed. 356 (citing Davis v. Schwartz, 155 U.S. 631, 636, 15 S.Ct. 237, 39 L.Ed. 289), the case is pre-eminently one for the application of the practical rule, that so far as the findings of the trial judge who saw the witnesses “depends upon conflicting testimony or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, it must be treated as unassailable.” Affirmed. Act of August 1, 1888, c. 728, 25 Stat. 357, 40 U.S.C.A. § 257; and Act of April 24, 1888, c. 194, 25 Stat. 94, 33 U.S.C.A. § 591. Public No. 409, House Resolution 6732, Act of Congress approved Aug. 30, 1935, 49 Stat. 1034, particularly referred to 'as House Document No. 238 of the 73rd Congress,- authorizing the construction" }, { "docid": "11493975", "title": "", "text": "must carry thorough conviction before the court would be justified in setting aside the decision of the Patent Office, but found that the additional evidence brought out the issues much more clearly thaii had theretofore been done, and held that in the light thereof Swenson was clearly shown to have priority. Minnesota Mining & Manufacturing Co. v. Nichols, D. C., 28 F. Supp. 105. We review such findings of the District Judge, just as in other cases, under the rule that they must be accepted by us unless clearly erroneous. Rule 52(a) of the Rules of Civil Procedure, 28 U.S.C. A. following section 723c; United States v. United States Shoe Machinery Co., 247 U. S. 32, 41, 38 S.Ct. 473, 62 L.Ed. 968; Adamson v. Gilliland, 242 U.S. 350, 37 S.Ct. 169, 61 L.Ed. 356; Wolf Mineral Process Corp. v. Minerals Separation N. A. Corp., 4 Cir., 18 F.2d 483, 486. The invention in issue relates to glazed granules for use in the manufacture of composition roofing and the process of making these granules. The granules are obtained by crushing silica .quartz and selecting those which will pass a relatively coarse screen and will be retained by a finer screen. Finer particles of the quartz are mixed with a flux and coloring matter, and water is added to form a paste by which the granules are coated. The coated granules are then fed into a rotary furnace, where they are subjected to such a temperature and for such a time as will cause the finer particles of silica or quartz in the paste to fuse completely and the larger particles to fuse only in part. There is thus formed on the granules a glazed coating in which the larger or partly fused quartz particles are embedded, giving a rough surface to the granules and causing them to adhere more securely to the asphalt base into which they are impressed. The eight claims of the patent to which the controversy as to priority relates are as follows: “1. Roofing granules, each granule of which has a surface coating composed of partly" }, { "docid": "12919461", "title": "", "text": "unless clearly erroneous. Rule 52, Federal1 Rules of Civil Procedure, 28 U.S.C.A. following section 723c. On the other hand counsel for the Collector argues that these findings are not binding on appeal because they are “legal conclusions” or at most “ultimate facts” or the “issues in the case.” In the application of Federal Rule 52 it is the following principle that guides this Court: the reviewing court does not review the evidence as an original fact finding tribunal; it does not attempt to settle conflicts in evidence or to determine questions of credibility. In re Duvall, 7 Cir., 103 F.2d 653, 655; Guilford Const. Co. v. Biggs, 4 Cir., 102 F.2d 46, 47. Of course Federal Rule' 52 does not require us to accept fact findings unsupported by the evidence. Nor does this Rule require us to respect conclusions of law which do not rest properly on the facts so found. It is certain that the principle giving the above described weight to the trial court’s findings of fact, does not compel the reviewing court to give any specific weight to the trial court’s conclusions of law, as it yet remains the duty of the appellate court to decide whether the correct rule of law has been applied to the facts found. Whether special findings are supported by the evidence or whether they give the requisite support to conclusions rendered thereon, are questions open to consideration here. In this connection counsel for the Collector points to three cases. United States v. Pugh, 99 U.S. 265, 270, 271, 25 L.Ed. 322; United States v. Jefferson Electric Mfg. Co., 291 U.S. 386, 406-410, 54 S.Ct. 443, 78 L.Ed. 859 and Nelson Co. v. Commissioner, 7 Cir., 75 F.2d 696, 697, 698. We have considered these cases and find them consistent with the principles stated. In essence he contends that “the questions in this case turn, not upon the credibility or the weight of the evidence but rather upon the legal significance to be given to the facts.” In effect this contention is equivalent to stating that the evidence does not establish the" }, { "docid": "23652960", "title": "", "text": "the Bank to turn over $25,000.00 to the Trustee and then conditioned on compliance with the turnover order allowed the Bank’s claim as a subordinate and inferior claim to the rights of general creditors. STANDARD OF REVIEW The Bank contends the Referee’s findings and orders issued pursuant thereto and the District Court’s approval of them on review were, in the respects complained of, clearly erroneous. General Order in Bankruptcy No. 37 makes the Federal Rules of Civil Procedure applicable to bankruptcy proceedings “insofar as they are not inconsistent with the Act” and commands that these Rules “be followed as nearly as may be.” Rule 52(a) Fed.R.Civ.P., states that “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Likewise, under General Order in Bankruptcy No. 47, unless otherwise directed in the order of reference the Referee “shall set forth his findings of fact and conclusions of law, and the judge shall accept his findings of fact unless clearly erroneous.” In applying and interpreting the “clearly erroneous” standard, the courts have used varying language to indicate the thrust and limitations of this principle. The Supreme Court in United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L. Ed. 746 (1948) said: “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction, that a mistake has been committed.” This language is later quoted with approval in Commissioner v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960). In Magidson v. Duggan, 212 F.2d 748, 752-753 (8 Cir. 1954) cert. denied 348 U.S. 883, 75 S.Ct. 124, 99 L.Ed. 694 Judge Sanborn paraphrased the Rule as follows: “The findings of fact of a trial court are clearly erroneous within Rule 52 of the Federal Rules of Civil Procedure, 28 U.S.C.A., when (1) not supported by substantial evidence, (2) contrary to the clear preponderance" }, { "docid": "22468137", "title": "", "text": "Internal Revenue Code the provision of the Federal Rules of Civil Procedure that: “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A. In the application of this rule and of the equity rule, which prior to the adoption of the Federal Rules of Civil Procedure governed review of equity cases only and which the rules made of universal application in all civil cases, United States v. United States Gypsum Company, 1948, 333 U.S. 364, 394, 68 S.Ct. 525, reviewing courts have emphasized the importance of the conclusions of the trial judge which derive from his opportunity to pass upon the credibility of the witnesses. And they have declined to resolve a conflict in the testimony of witnesses their own way. Davis v. Schwartz, 1895, 155 U.S. 631, 636, 15 S.Ct. 237, 39 L.Ed. 289; Adamson v. Gilliland, 1917, 242 U.S. 350, 353, 37 S.Ct. 169, 61 L.Ed. 356; Wittmayer v. United States, 9 Cir., 1941, 118 F.2d 808, 810; Gates v. General Casualty Company of America, 9 Cir., 1941, 120 F.2d 925, 927; Augustine v. Bowles, 9 Cir., 1945, 149 F. 2d 93, 96; and see “Findings in the Light of the Recent Amendments to the Federal Rules of Civil Procedure”, 8 F.R.D. 271, 288-291, and cases cited in footnotes 6-9. The Supreme Court, in a very recent case, United States v. United States Gypsum Company, 1948, 333 U.S. 364, 68 S.Ct. 525, has stated the scope of this provision in this manner: “It was intended, in all actions tried upon the facts without a jury, to make applicable the then prevailing equity practice. Since judicial review of findings of trial courts does not have the statutory or constitutional limitations [on judicial review] of findings by administrative agencies or by a jury, this Court may reverse findings of fact by a trial court where ‘clearly erroneous.’ The practice in equity prior to the present Rules of Civil Procedure" }, { "docid": "15369901", "title": "", "text": "deprived, I say, of a very material part of the information necessary to enable them to determine whether or not they shall make the contract with him.” These findings bind us in the action we should take, unless we are convinced, either that the judge’s reasoning was not sound as to the law, or that the facts as found by him are clearly not supported by the testimony. As to many of the facts of importance, and as found by the district judge, there seems to be no real dispute, while as to others there is sharp conflict in the evidence, which, however, was solved in favor of appellees by a judge who had opportunity to determine the truthfulness of the statements of. the several witnesses, heard them testify, and observed their demeanor, intelligence, . and candor . while upon the stand. We should be slow to depart from the well-recognized rule of following the findings of the trial court in the circumstances, and which is supported by the almost unanimous decisions of the federal courts. Adamson v. Gilliland, 242 U. S. 350, 37 S. Ct. 169, 61 L. Ed. 356; Mason v. United States, 260 U. S. 546, 556, 43 S. Ct. 200, 67 L. Ed. 396; Espenschied v. Baum, 115 F. 793, 53 C. C. A. 368; American, etc., v. Moorehead, 226 F. 202, 141 C. C. A. 129; Westerman v. Dispatch, etc., Co., 233 F. 609, 147 C. C. A. 417; United States Grass Creek O. & G. Co., 236 F. 481, 484, 149 C. C. A. 533; Stratton v. Buller (C. C. A.) 268 F. 825; McGovern v. McClintic-Marshall Co. (C. C. A.) 269 F. 916. So far from not adhering to the usual rule in this case, it seems to us that the District Court was elearly right in what it did, and there was no other conclusion that could fairly have been reached, having regard to the testimony in the ease and the law properly applicable thereto. These were applications for the issuance of policies of insurance on the life of James S. Keeton." }, { "docid": "12768268", "title": "", "text": "Bank v. Flippin, 158 N.C. 334, 74 S.E. 100; Merrill v. National Bank, 173 U.S. 131, 19 S.Ct. 360, 43 L.Ed. 640. No surrender of securities can be inferred, therefore, from the acceptance of the stock dividend on the basis of the face of the claim. There is no presumption that the stock dividend was accepted in extinguishment of the debt, but the presumption is to the contrary (Cf. Jefferson Standard Life Ins. Co. v. Lightsey, 4 Cir., 49 F.2d 586; 1 Am.Jur. 223, 224), and no evidence whatever that anyone intended that it should be so accepted. On the contrary, there is evidence that the judgment which the receiver of the bank held by assignment as collateral security was supposed to be worth at the time around $25,000; and it is unreasonable that he would have surrendered this security in order to receive stock worth about one-tenth that amount, or that anyone would have suggested that he do so. The assets, as has been noted, were transferred subject to existing liens and mortgages; and there is nothing to indicate an intention that these were to be extinguished upon the contemplated distribution of stock to which their holders would become entitled or that the holders were tó be accorded their rights under the distribution only upon surrender of these securities. As to the value of the stock distributed to the receiver and credited upon the claim of the bank, there is nothing in the record which would justify our disturbing the finding of the District Judge with regard thereto. The provisions of the new procedural rules that the findings of fact of the trial judge are to be accepted on appeal unless clearly wrong (Rule 52 (a), 28 U.S.C.A. following section 723c) is but the formulation of a rule long recognized and applied by courts of equity. Adamson v. Gilliland, 242 U.S. 350, 37 S. Ct. 169, 61 L.Ed. 356; Deutser v. Marlboro Shirt Co., 4 Cir., 81 F.2d 139, 142; Sherman v. Bramham, 4 Cir., 78 F.2d 443; Miller v. Pyrites Co., 4 Cir., 71 F.2d 804; Suburban Imp." }, { "docid": "13701730", "title": "", "text": "the formulation of a rule long recognized and applied by courts of equity. Guilford Const. Co. v. Biggs, 4 Cir., 102 F.2d 46, 47. As was said by Mr. Justice Holmes in Adamson v. Gilliland, 242 U.S. 350, 353, 37 S.Ct. 169, 170, 61 L.Ed. 356 (citing Davis v. Schwartz, 155 U.S. 631, 636, 15 S.Ct. 237, 39 L.Ed. 289), the case is pre-eminently one for the application of the practical rule, that so far as the findings of the trial judge who saw the witnesses “depends upon conflicting testimony or upon the credibility of witnesses, or so far as there is any testimony consistent with the finding, it must be treated as unassailable.” Affirmed. Act of August 1, 1888, c. 728, 25 Stat. 357, 40 U.S.C.A. § 257; and Act of April 24, 1888, c. 194, 25 Stat. 94, 33 U.S.C.A. § 591. Public No. 409, House Resolution 6732, Act of Congress approved Aug. 30, 1935, 49 Stat. 1034, particularly referred to 'as House Document No. 238 of the 73rd Congress,- authorizing the construction of the Eort Peck Dam and all things incidental thereto. Description is from exemplification of original record of the Department of Interior, General Dand Office, plaintiff’s exhibit 3. Description in patent covers same land, plaintiffs exhibit 4. The new rules govern appeals in condemnation proceedings. Rule 81(a)(7), F.R.C.P." }, { "docid": "13556041", "title": "", "text": "guilty of adultery with appellee’s husband. The credibility of the testimony is within the province of the trial court who saw the witnesses and heard them speak. We cannot say that the record did not warrant the inferences and conclusions that were drawn.” The opinion of this court in Morfessis v. Morfessis, 1950, 87 U.S.App.D.C. 292, 184 F.2d 468, stated: “The findings of the District Court, sitting without a jury, ‘shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.’ * As the trier of the facts, it is in the best position to consider the demeanor of the witnesses and to weigh their testimony. * -x- * >> '\"“Rule 52(a), Federal Rules of Civil Procedure.” Repeating what it had said in Davis v. Schwartz, 1895, 155 U.S. 631, 636, 15 S.Ct. 237, 39 L.Ed. 289, the Supreme Court said in Adamson v. Gilliland, 1917, 242 U.S. 350, 353, 37 S.Ct. 169, 170, 61 L.Ed. 356: “* * * [S]o far as the finding of the * * * judge who saw the witnesses ‘depends upon conflicting testimony or upon the credibility of witnesses * * * it must be treated as unassailable.’ ” The case of United States v. Oregon State Medical Society, 1952, 343 U.S. 326, 72 S.Ct. 690, 96 L.Ed. 978, is to the same effect. There the Supreme Court said, 343 U.S. at page 339, 72 S.Ct. at page 698: “As was aptly stated by the New York Court of Appeals * * * : ‘Face to face with living witnesses the original trier of the facts holds a position of advantage from which appellate judges are excluded. In doubtful cases the exercise of his power of observation often proves the most accurate method of ascertaining the truth. * * * How can we say the judge is wrong ? We never saw the witnesses. * * * To the sophistication and sagacity of the trial judge the law confides the duty of appraisal.’ Boyd v. Boyd," }, { "docid": "13556040", "title": "", "text": "reasonable mind must necessarily have had a reasonable doubt as to appellant’s guilt. Surely they do not intend to say Judge Schweinhaut was unreasonable in deciding as he did on the basis of the evidence which he believed. The majority statement must mean, then, that they believe Farrar’s testimony and that, giving credence to what he said, a reasonable doubt was inevitable. It follows they are reversing the trial judge’s decision as to the credibility of witnesses. But the question here is not what we think of the evidence as it appears on printed pages. The issue on this appeal is whether we can properly disturb the determination of guilt made by an experienced trial judge on evidence which, if believed, amply supports it, and which he found so completely convincing. I think it is thoroughly settled that we have no such authority. In Daniels v. Souders, 1952, 90 U.S.App.D.C. 298, 300, 195 F.2d 780, 781, this court said: “Appellant also contends that the evidence is not sufficient to support the finding that she was guilty of adultery with appellee’s husband. The credibility of the testimony is within the province of the trial court who saw the witnesses and heard them speak. We cannot say that the record did not warrant the inferences and conclusions that were drawn.” The opinion of this court in Morfessis v. Morfessis, 1950, 87 U.S.App.D.C. 292, 184 F.2d 468, stated: “The findings of the District Court, sitting without a jury, ‘shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.’ * As the trier of the facts, it is in the best position to consider the demeanor of the witnesses and to weigh their testimony. * -x- * >> '\"“Rule 52(a), Federal Rules of Civil Procedure.” Repeating what it had said in Davis v. Schwartz, 1895, 155 U.S. 631, 636, 15 S.Ct. 237, 39 L.Ed. 289, the Supreme Court said in Adamson v. Gilliland, 1917, 242 U.S. 350, 353, 37 S.Ct. 169, 170, 61 L.Ed. 356:" }, { "docid": "12768269", "title": "", "text": "there is nothing to indicate an intention that these were to be extinguished upon the contemplated distribution of stock to which their holders would become entitled or that the holders were tó be accorded their rights under the distribution only upon surrender of these securities. As to the value of the stock distributed to the receiver and credited upon the claim of the bank, there is nothing in the record which would justify our disturbing the finding of the District Judge with regard thereto. The provisions of the new procedural rules that the findings of fact of the trial judge are to be accepted on appeal unless clearly wrong (Rule 52 (a), 28 U.S.C.A. following section 723c) is but the formulation of a rule long recognized and applied by courts of equity. Adamson v. Gilliland, 242 U.S. 350, 37 S. Ct. 169, 61 L.Ed. 356; Deutser v. Marlboro Shirt Co., 4 Cir., 81 F.2d 139, 142; Sherman v. Bramham, 4 Cir., 78 F.2d 443; Miller v. Pyrites Co., 4 Cir., 71 F.2d 804; Suburban Imp. Co. v. Scott Lumber Co., 4 Cir., 67 F.2d 335, 90 A.L.R. 330. For the reasons stated, the decree appealed from will be affirmed. Affirmed." }, { "docid": "13501781", "title": "", "text": "in the State of Maine, we have recourse to the laws of that State in determining the respective rights of the parties in the controversy here involved. Rosenthal v. New York Life Ins. Co., 304 U.S. 263, 264, 58 S.Ct. 874, 82 L.Ed. 1330; Ruhlin et al. v. New York Life Ins. Co., 304 U.S. 202, 58 S.Ct. 860, 82 L.Ed. 1290; Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487; Mutual Life Ins. Co. of New York v. Johnson, Adm’r, 293 U.S. 335, 55 S.Ct. 154, 79 L.Ed. 398. The insured relies upon two main assignments of error, the second of which we shall take up first. In this assignment the insured maintains that the findings and rulings that the insured falsely and fraudulently concealed and misrepresented material facts in his application for the policies were clearly wrong. While it is true that on an appeal in equity a case is to be examined on both the law and the facts, and that the reviewing court is not bound by the trial judge’s findings of fact, it is equally true that the appellate court ought not to disturb such findings, -especially where the evidence is conflicting and the credibility of witnesses is involved, unless it appears that the trial judge was clearly wrong. Hughes Federal Practice, Sections 5639, 5425; La Abra Silver Mining Co. v. United States, 175 U.S. 423, 20 S.Ct. 168, 44 L.Ed. 223; Rosenthal et al. v. New York Life Ins. Co., 8 Cir., 99 F.2d 578, 582; Colby v. Riggs Nat. Bank, 67 App.D.C. 259, 92 F.2d 183, 199, 114 A.L.R. 1065; Illinois Watch Case Co. et al. v. Hingeco Mfg. Co., Inc., et al., 1 Cir., 81 F.2d 41; New York Life Ins. Co. v. Simons et al., 1 Cir., 60 F.2d 30; American Rotary Valve Co. v. Moorhead, 7 Cir., 226 F. 202; Cf. Rule 52(a) New Federal Rules of Civil Procedure for the District Courts, 28 U.S.C.A. following section 723c. And where the credibility of witnesses is a determinative factor in arriving at" } ]

[ { "docid": "23667942", "title": "", "text": "district court’s discretion when imposing a sentence for the base offenses in § 924(c)(1), for which the maximum penalty is life. Harris, 243 F.3d at 809. B. Furthermore, notwithstanding the fact that the enhancements under § 924(c)(l)(C)(i) and § 924(c)(l)(C)(ii) did not increase the penalties beyond § 924(c)(l)’s statutory maximum, we find that the enhancements fall squarely within Apprendi’s prior conviction exception. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). Cristobal urges us to find that Apprendi overruled the prior conviction exception in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Unfortunately for Cristobal, this Circuit has expressly held that Almenda-rez-Torres survives Apprendi. United States v. Sterling, 283 F.3d 216, 220 (4th Cir.2002) (finding that prior convictions were properly used to enhance a defendant’s sentence under the Armed Career Criminal Statute, 18 U.S.C. § 924(e)). In the alternative, Cristobal argues that § 924(c)(1)(C) enhancements should fall outside of the prior conviction exception to Apprendi because Apprendi “does not specifically address ‘second or subsequent convictions.’ ” Appellant’s Opening Brief at 55. This argument is patently merit-less. In order for a § 924(c) conviction to be a second or subsequent conviction, a defendant obviously must have been convicted of a first or “prior” § 924(c) offense. We will not invent a distinction where clearly none exists. We find that the fact that a § 924(c) conviction may be a “second or subsequent” conviction under that subsection need not be charged in the indictment or proved beyond a reasonable doubt. VI. Accordingly, we affirm all aspects of Cristobal’s conviction and sentence. AFFIRMED. . Cristobal’s remaining sufficiency of the evidence arguments are all predicated upon his claim that the evidence did not show he fired his gun at Officer Melton. We have carefully reviewed the record and are satisfied that the evidence, viewed in a light most favorable to the prosecution, supports such a" } ]

[ { "docid": "18482569", "title": "", "text": "(2001) (quoting Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001)) (internal quotations omitted). When the statute is read as a coherent whole, the two provisions are not in tension, because § 3592 adequately “sets forth” the non-statutory aggravating factors by providing that the jury may consider them. For the foregoing reasons, the conviction and sentence are AFFIRMED. The government’s motion to supplement the record on appeal is DENIED. . Those facts form part of the basis for Robinson’s conviction and death sentence on counts 3 and 7, which charged violations of 21 U.S.C. § 848 and 18 U.S.C. § 924(j), respectively. The jury unanimously recommended a death sentence on both counts. . Those facts form part of the basis for Robinson's conviction and death sentence on counts 3 and 11, which charged violations of 21 U.S.C. § 848 and 18 U.S.C. § 924(j), respectively. The jury unanimously recommended a death sentence on both counts. . Those facts form part of the basis for Robinson’s conviction on count 3 and his conviction and life sentences on counts 12 and 15, which charged violations of 21 U.S.C. §§ 848 and 841(a)(1) and 18 U.S.C. § 924(j), respectively. The jury — having separately recommended a death sentence for the portions of count 3 relating to the Shelton and Reyes murders— unanimously recommended a life sentence on the portion of count 3 related to Resendez and two other life sentences on counts 12 and 15. .Those facts form the basis of Robinson’s conviction and 300-month sentence on count 17, which charges a violation of 18 U.S.C. § 924(c)(1)(A). . See, e.g., Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (holding that “any fact ... that increases the maximum penalty for a crime must be charged in an indictment”); Apprendi, 530 U.S. at 476, 120 S.Ct. 2348 (same); United States v. Cotton, 535 U.S. 625, 627, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (same). See also Sattazahn v. Pennsylvania, 537 U.S. 101, 111, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003)" }, { "docid": "22257725", "title": "", "text": "the latter requires proof of agreement but the former do not, these convictions satisfy the Double Jeopardy Clause. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). He also argues that his consecutive § 924(c) sentences accord with neither § 924(c)’s own meaning nor the prohibition against double jeopardy because his convictions had the same underlying predicate offense and stemmed from the same underlying course of criminal conduct. We rejected this argument in United States v. Camps, 32 F.3d 102 (4th Cir.1994). Just as the defendant in Camps was properly sentenced for each individual act in violation of § 924(e), Robinson was properly sentenced for the separate drugs-for-firearms trades alleged in Counts 3 and 9. Robinson argues further that he is not subject to mandatory mínimums under § 924(c) because he was subject to a twenty-year mandatory minimum for the crack conspiracy. The statute reads: “Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who” violates the use or possession prongs is subject to at least a five-year mandatory minimum. 18 U.S.C. § 924(c)(1)(A). As Robinson notes, we have already disagreed with his interpretation of the “except” clause. In United States v. Studifin, 240 F.3d 415, 423 (4th Cir.2001), we held that the clause creates a “safety valve” for higher punishments: if “any other provision of law” imposes a higher sentence for conduct violating § 924(c), the district court should impose that sentence, not the lower one specified in § 924(c). Though Robinson raised this claim to preserve it for possible further review, the Supreme Court’s recent decision in Abbott v. United States, — U.S. -, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010), eliminates that possibility. The Court held that § 924(c)’s “except” clause only applies where “another provision of law directed to conduct proscribed by § 924(c) imposes an even greater mandatory minimum.” Id., 131 S.Ct. at 23. In other words, the Court agreed with Studifin’s “safety valve” reading of the provision. See id., 131 S.Ct. at" }, { "docid": "20531757", "title": "", "text": "failed to cite to the specific subsection of 18 U.S.C. § 924(c)(1)(A) that provides that an 84-month mandatory minimum applies when a firearm is brandished, see 18 U.S.C. § 924(c)(l)(A)(ii). But that argument does not call into question the district court's jurisdiction. See United States v. Brown, 752 F.3d 1344, 1349-50 (11th Cir.2014) (noting that an indictment’s failure to allege the drug quantity that triggered a higher statutory maximum sentence was not a jurisdictional defect and stating that an indictment’s failure to allege an essential element of a crime does not deprive the district court of jurisdiction). Therefore, the challenge has been waived by Payne’s guilty plea. See United States v. Betancourth, 554 F.3d 1329, 1332 (11th Cir.2009) (\"A defendant who enters an unconditional plea of guilty waives all nonjurisdictional challenges to the conviction, but challenges to the subject matter jurisdiction of the federal courts cannot be waived.”). In any event, Payne cannot credibly contend that he had insufficient notice that he would be subject to the mandatory minimum because the penalty page of his indictment stated that that mandatory minimum sentence applied to the § 924(c)(1)(A) count and the district court told him at his plea hearing that he “could receive a term of imprisonment of no less than seven years” on that count. . We reject Payne's contention that he could be sentenced under § 924(c)(1)(A)(ii) only if he admitted or a jury found that he \"knew that the firearm[] would be brandished.” To the contrary, Payne could be found liable so long as he was an \"active participant” in the bank robbery and he “kn[ew] that one of his confederates [was carrying] a gun.” Rosemond v. United States, - U.S. -, 134 S.Ct. 1240, 1249, 188 L.Ed.2d 248 (2014). He admitted both of those facts at his plea hearing. It does not matter whether Payne knew that one of his codefendants would actually brandish a gun in the bank. See United States v. Williams, 334 F.3d 1228, 1230, 1232-33 (11th Cir.2003) (upholding 10-year mandatory minimum sentence under 18 U.S.C. § 924(c)(1)(A)(iii) for defendant who participated in bank" }, { "docid": "16616789", "title": "", "text": "to be calculated independently, the adjustments set forth in Chapter Three of the Guidelines Manual “are not to be applied to mandatory statutory sentences”). Here, the district court could not have imposed any other sentence. With a total punishment of 360 months to life, § 5G1.2(d) required the court to impose the sentences on Counts 1, 9, 10, and 11 to run consecutively to the extent necessary to produce a sentence equal to the total punishment. Those four sentences added up to twenty-five years, which did not reach the total punishment of 360 months. The sentences on Counts 13 and 14 could not count toward that total punishment, because § 5G1.2(a) requires that those sentences be imposed independently and run consecutive to any other sentence. The twenty-year sentence on Count 13 and the five-year sentence on Count 14 were then added consecutively as required by 18 U.S.C. § 924(c)(l)(D)(ii), resulting in a total sentence of fifty years. C. Apprendi At oral argument, the United States argued that a decision of the United States Supreme Court requires that we reverse our earlier Apprendi ruling and remand to the district court to reimpose Graham’s fifty-five-year sentence. The United States points to United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002), which found an Apprendi violation not to “seriously affect the fairness, integrity, or public reputation of judicial proceedings” when the drug quantity, although not alleged in the indictment, was established by overwhelming evidence at trial, Cotton, 122 S.Ct. at 1786. The United States argues that the Apprendi violation in Graham’s case similarly fails to constitute plain error. Cotton was decided on May 20, 2002, more than five months before the United States filed its brief in this case, yet the United States referred to neither any error in the previous finding of an Apprendi violation, the five-month-old decision in Cotton, nor any other argument on the merits in its brief, focusing only on its law of the case argument. The United States has identified no “plain miscarriage of justice” that would result if we declined to address" }, { "docid": "19656481", "title": "", "text": "not more than life imprisonment. (PSR, p. 12). The PSR accurately reflected that the maximum term of supervised release was five years. (PSR ¶ 51, p. 12). At sentencing, the government recommended that the court impose the minimum statutory penalty of five years’ imprisonment. The district court, however, determined that a longer term was warranted and elected to sentence Todd in accordance with the advisory guidelines. The court ultimately imposed a term of 262 months’ imprisonment, which was the low end of the advisory guidelines range, and included a five-year term of supervised release. II. Todd’s first argument on appeal is that count seven of the indictment (the § 924(c) count to which Todd ultimately pled guilty) failed to state a federal offense, and this defect was not waived by his later guilty plea. The indictment charged that Todd “knowingly possessed firearms ... during and in relation to a drug trafficking crime.” The statute, however, applies to any person who “during and in relation to any ... drug trafficking crime ... uses or carries a firearm,” or to any person who “in furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A). See United States v. Gill, 513 F.3d 836, 850-51 (8th Cir.2008). The indictment thus conflated the two alternative offenses defined in § 924(c). We conclude nevertheless that Todd waived his challenge to the indictment by pleading guilty. A guilty plea waives all defects except those that are “jurisdictional.” Camp v. United States, 587 F.2d 397, 399 (8th Cir.1978). Although we previously characterized ah indictment that fails to state an offense as a “jurisdictional defect,” United States v. Fitzhugh, 78 F.3d 1326, 1330 (8th Cir.1996), the Supreme Court clarified more recently that a defective indictment does not deprive a court of jurisdiction. United States v. Cotton, 535 U.S. 625, 632, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). Therefore, Todd’s challenge to the indictment does not raise a jurisdictional defect, and so long as his guilty plea was valid, his claim is waived. Todd argues, however, that his guilty plea was not valid, because the district court failed" }, { "docid": "1306176", "title": "", "text": "a term of imprisonment of not less than 5 years”). The 1998 amendment signals Congress’s intent that the ten-year sentence in § 924(c)(1)(A)(iii) be “the minimum or the floor, not the floor and ceiling as the prior version of the statute provided,” and that it “left open the ceiling.” See United States v. Sias, 227 F.3d 244, 246 (5th Cir.2000). For these reasons, the district court correctly concluded that the statutory maximum sentence under § 924(c)(1)(A) is greater than the mandatory minimum. We next address whether the statutory maximum is life or something less than life but more than ten years. The Supreme Court’s decision in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), suggests a maximum of life imprisonment. The Harris plurality held that brandishing a firearm is a sentencing factor rather than an element of the offense in § 924(c)(1)(A), reasoning that because the statute’s “subsections alter only the minimum, the judge may impose a sentence well in excess of seven years, whether or not the defendant brandished the firearm.” Id. at 554, 556, 122 S.Ct. 2406 (emphasis added). In dissent, Justice Thomas explicitly referred to “the statutory maximum of life imprisonment for any violation of § 924(c)(1)(A).” Id. at 574, 122 S.Ct. 2406 (Thomas, J., dissenting); see also United States v. O’Brien, — U.S. -, 130 S.Ct. 2169, 2182, 176 L.Ed.2d 979 (2010) (Stevens, J., concurring) (noting that § 924(c)(1) “contains an implied statutory maximum of life”); id. at 2184 (Thomas, J., concurring in the judgment) (stating that penalty range under § 924(c)(1)(A)(i) is “five years to life imprisonment”). Relying on Harris, we have stated in dicta that the maximum sentence under § 924(c)(1)(A) is life imprisonment. See Washington, 462 F.3d at 1139 & n. 8; United States v. Dare, 425 F.3d 634, 640 (9th Cir.2005). Each of our sister circuits to address this issue has similarly concluded — some of them holding, not merely stating in dicta — that the statutory maximum is life. See United States v. Shabazz, 564 F.3d 280, 289 (3d Cir.2009) (holding statutory maximum is life" }, { "docid": "302479", "title": "", "text": "v. Stines, 313 F.3d 912, 917 (6th Cir.2002), in which we relied upon United States v. Strayhorn, 250 F.3d at 462, 467 (6th Cir.2001), and held that “[i]n order to preserve an Apprendi challenge, the defendants need not ‘utter the words “due process” ’ as long as it is well known that they dispute the district court’s factual findings as to drug quantity.” However, in deciding Lopez, we distinguished Strayhom on the ground that Apprendi had not been decided when the Strayhorn defendants were tried and sentenced. See Lopez, 309 F.3d at 969. Similarly, in Stines, we noted that “[i]t would have been impossible for the defendants to have intentionally relinquished or abandoned their Apprendi based claims considering Apprendi was decided after they were sentenced.” Stines, 313 F.3d at 917. Unlike the defendants in Strayhorn and Stines, the sentence was imposed upon Burgin on April 7, 2003 after Apprendi had been decided. Burgin cannot assert that Apprendi was not the law at the time of this sentencing. As such, his reliance upon Stines is misplaced. Therefore, we must now review the decision of the district court for plain error. See Fed.R.Civ.P. 52(b). Under the plain error test, “before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Cotton, 535 U.S. 625, 631-632, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (internal citations omitted). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. Ill The Government initially argues that Burgin waived his constitutional right to present a claim under Apprendi when, after pleading guilty, there was an admission by him that he had committed three violent felonies, as defined by 18 U.S.C. § 924(e). In making this argument, the Government relies upon (1) a listing of all the elements of the offense that it had given to Burgin, (2) his guilty plea form, and" }, { "docid": "16249008", "title": "", "text": "Court having granted certiorari in United States v. O’Brien, 560 U.S.-, 130 S.Ct. 2169, 176 L.Ed.2d 979 (2010) (the case has been decided since the time Mendoza filed his brief). It is unclear why Mendoza hedged a bet on the outcome of O’Brien. O’Brien involved a provision of 18 U.S.C. § 924(c) — a statute not at issue in this case — that provides for a 30-year mandatory minimum sentence when the firearm used in the offense is a machine gun. 18 U.S.C. § 924(c)(1)(B)(ii). The O’Brien court ruled that the fact that a gun is a machine gun is an element of the § 924(c) offense that must be proved to a jury beyond a reasonable doubt, as opposed to a sentencing factor to be proven to the judge. O’Brien, 130 S.Ct. at 2180. The holding has no bearing on the validity of Mendoza’s sentence under 21 U.S.C. § 841(b)(1)(B). As we have repeatedly-held, the amount of drugs a defendant possessed is not an element of a § 841 offense and the sentencing judge can find facts that trigger a mandatory minimum sentence. See Clark, 538 F.3d at 811-12; see also United States v. Washington, 558 F.3d 716, 720 (7th Cir.2009); Price, 516 F.3d at 605. Amount findings need be determined beyond a reasonable doubt only when they implicate a statutory maximum prison term, which is not the case here. See United States v. Kelly, 519 F.3d 355, 363 (7th Cir.2008); see also Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). III. GERARDO PINEDA-SORIA— MOTION TO SUPPRESS Gerardo Pineda-Soria was a supplier of cocaine to the conspiracy. He pled guilty to possessing with intent to distribute cocaine in violation of 21 U.S.C. § 841(a), subject to a plea agreement in which he retained his ability to appeal the district court’s denial of his motion to suppress drugs that had been found during a search of his residence. He was sentenced to 30 months’ imprisonment. He now appeals the denial of his motion to suppress. When considering a motion to suppress, we review the" }, { "docid": "15222140", "title": "", "text": "if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002) (internal quotation and citation omitted). Leaving aside the issue of whether the district court’s failure to specifically explain its rejection of the appellant’s claims was, if error at all, ‘“so “plain” the trial judge and prosecutor were derelict in countenancing it, even absent the defendant’s timely assistance in detecting it,’” United States v. Saro, 24 F.3d 283, 286 (D.C.Cir.1994) (quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982)), those claims cannot succeed because he cannot “show a reasonable likelihood that the sentencing court’s obvious errors affected his sentence.” Saro, 24 F.3d at 288; Bolla, 346 F.3d at 1153 (noting “somewhat relaxed standard for showing prejudice under third prong of the plain error test”). For starters, once the sentencing court granted the government’s substantial assistance motion, the appellant sought a “time-served” sentence — roughly 22 months — one far below the applicable adjusted 120-135 month range irrespective of any role-in-the-offense adjustment or criminal history departure. Moreover, such an adjustment or criminal history departure would have gained the appellant nothing because, with his criminal record, he did not qualify for the “safety valve provision” in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 — which allows certain first time offenders to avoid a statutory mandatory minimum sentence. United States v. Robinson, 158 F.3d 1291, 1293-94 (D.C.Cir.1998) (per curiam) (“[A] court may not sentence a defendant under the ‘safety valve’ provision when that defendant has more than 1 criminal history point.”). Thus, regardless of any vertical base-offense level adjustment or horizontal shift in the appellant’s criminal history category, he nevertheless would have faced a statutory mandatory minimum sentence of 120 months. See 21 U.S.C. § 841(b)(1)(A); U.S.S.G. § 601.2(a)(1). The government’s substantial assistance motion provided the only way for him to avoid a ten-year sentence. 18 U.S.C. § 3553(e); see Melendez v. United States, 518 U.S. 120, 126-27, 116 S.Ct. 2057, 2061-62, 135 L.Ed.2d" }, { "docid": "5214806", "title": "", "text": "penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The Supreme Court has held, however, that “brandishing” a firearm is a sentencing factor and not an element of the crime described in 18 U.S.C. § 924(c)(1)(A). Allowing the judge to find that factor by a preponderance of the evidence does not violate a defendant’s Fifth and Sixth Amendment rights. Harris v. United States, 536 U.S. 545, 556, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). The Supreme Court in Harris v. United States explained that the “brandishing” provision does not violate the Apprendi rule because the mandatory minimum provisions in § 924 do not extend a defendant’s sentence beyond the statutory maximum sentence, which is “well in excess of seven years.” Id. at 554, 567-68, 122 S.Ct. 2406; see also United States v. Shabazz, 564 F.3d 280, 288-89 (3d Cir.2009). Harris remains good law and has been subsequently relied upon and cited by the Supreme Court and this Court. See, e.g., United States v. O’Brien, — U.S. -, 130 S.Ct. 2169, 2179-80, 176 L.Ed.2d 979 (2010); United States v. Tidwell, 521 F.3d 236, 245 (3d Cir.2008). Given that the Supreme Court squarely addressed this issue in Harris and held that brandishing is a sentencing factor to be found by the judge, the appellants’ argument does not provide a basis for reversal. X. Shavers’s Term of Supervised Release Finally, Shavers contends that his eight-year term of supervised release exceeds the statutory maximum of five years for a violation of 18 U.S.C. § 924(c)(l)(A)(ii). For a felony conviction pursuant to § 924(c), which is a Class A felony, the maximum length of supervised release is five years. 18 U.S.C. §§ 3559(a)(1), 3583(b)(1); United States v. Cudjoe, 634 F.3d 1163, 1166 (10th Cir.2011); United States v. Todd, 521 F.3d 891, 895 (8th Cir.2008). Shavers is correct, therefore, that his sentence of eight years of supervised release exceeds the statutory maximum term of supervised release for the offense of conviction. Because that" }, { "docid": "18482570", "title": "", "text": "his conviction and life sentences on counts 12 and 15, which charged violations of 21 U.S.C. §§ 848 and 841(a)(1) and 18 U.S.C. § 924(j), respectively. The jury — having separately recommended a death sentence for the portions of count 3 relating to the Shelton and Reyes murders— unanimously recommended a life sentence on the portion of count 3 related to Resendez and two other life sentences on counts 12 and 15. .Those facts form the basis of Robinson’s conviction and 300-month sentence on count 17, which charges a violation of 18 U.S.C. § 924(c)(1)(A). . See, e.g., Jones v. United States, 526 U.S. 227, 243 n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (holding that “any fact ... that increases the maximum penalty for a crime must be charged in an indictment”); Apprendi, 530 U.S. at 476, 120 S.Ct. 2348 (same); United States v. Cotton, 535 U.S. 625, 627, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (same). See also Sattazahn v. Pennsylvania, 537 U.S. 101, 111, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003) (opinion of Scalia, J.) (“We can think of no principled reason to distinguish, in this context, between what constitutes an offense for purposes of the Sixth Amendment’s jury-trial guarantee and ... the Fifth Amendment’s Double Jeopardy Clause.”). . This holding is in accord with that of the other two circuits to have considered the issue. See United States v. Allen, 357 F.3d 745, 748 (8th Cir.2004) (holding, in an FDPA case, that \"aggravating factors essential to qualify a particular defendant as death eligible ... must be alleged in the indictment”); United States v. Higgs, 353 F.3d 281, 298 (4th Cir.2003) (same). At oral argument, the government represented that it became the policy of the Department of Justice, post-Ring, to seek, in all pending FDPA cases, superseding indictments setting forth the aggravating factors that render the defendant eligible for the death penalty. One of Robinson's co-defendants, Britt, was tried on the basis of one such superseding indictment, but the option was unavailable for Robinson, who was convicted and sentenced pre-Ring. . Two circuits have reached this" }, { "docid": "11395569", "title": "", "text": "and stated that “in light of the comments that [the government] just made, I would like to tell you, I appreciate [the government] not filing that motion.” Id. The court then denied Simmons’s request to withdraw his guilty plea and imposed two consecutive sixty-month sentences to run concurrently with a sentence Simmons was already serving on the unrelated drug charge. On appeal, Simmons' first argues that because Count Two of the indictment misstated the elements ' of ' § 924(c) and because the District Court failed to properly inform him of the elements of the offense as required by Rule 11, his guilty plea was invalid and he should be “permitted to withdraw his plea of guilty to Count [Two].” Second Supp. Br. of Appellant at 22; see United States v. Todd, 521 F.3d 891, 895 (8th Cir.2008) (noting that a challenge to an indictment is waived by a valid guilty plea). Simmons did not raise his Rule 11 argument before the District Court, so we review only for plain error. See United States v. Vonn, 535 U.S. 55, 58-59, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). Under this standard, Simmons must show not only that the District Court committed a plain error in complying with Rule 11, but also that any such error affected his substantial rights. A Rule 11 violation “affects substantial rights only where the defendant shows a reasonable probability that but for the error, he would not have entered a guilty plea.” Todd, 521 F.3d at 896. As noted above, Count Two of the indictment charged that Simmons “did knowingly and intentionally possess firearms” “during and in relation to a drug-trafficking crime.” Section 924(c), however, applies to any person who (1) “uses or carries a firearm” “during and in relation to any ... drug trafficking crime” or (2) “possesses a firearm” “in furtherance of any such crime.” 18 U.S.C. § 924(c). The government concedes that the indictment was defective and should have charged Simmons with possessing firearms “in furtherance of’ a drug-trafficking offense. Supp. Br. of Appellee at 10. And we agree with Simmons that because" }, { "docid": "22688328", "title": "", "text": "imposed), cert. denied, — U.S. -, 122 S.Ct. 803, 151 L.Ed.2d 689 (2002). General properly was charged with the offense of conspiring to distribute an unspecified quantity of cocaine base, cocaine powder, heroin, and marijuana, and his 235 month sentence is less than the statutory maximum for his offense. See 21 U.S.C.A. § 841(b)(1)(C) (West 1999). The failure to include drug quantity in the indictment does not invalidate General’s guilty plea because drug quantity is not an element of the offense for which he was sentenced. Accordingly, General cannot demonstrate that either his indictment or the district court’s explanation of the charges against him was erroneous, much less plainly erroneous. III. General next argues that his supervised release term violates contending that § 841(b)(1)(C) for a maximum supervised release term of three years. General has misread § 841(b)(1)(C), which clearly provides for a minimum supervised release term of three years, not a maximum. Because General’s five-year supervised release term does not exceed the statutory range allowable without regard to drug quantity, Apprendi is inapplicable. Indeed, we rejected an identical claim in United States v. Pratt, 239 F.3d 640, 648 (4th Cir.2001). Accordingly, we affirm General’s supervised release term. IV. General argues that the district court committed reversible error by failing to advise him during the plea colloquy about the five year mandatory minimum sentence applicable to his firearm charge. See 18 U.S.C.A. § 924(c) (West 2000) (providing a five year mandatory minimum for carrying a firearm during and in relation to a drug trafficking offense). As General notes, the district court advised General of the statutory máximums for each count but did not advise him of the statutory mandatory mínimums for his firearm offense. Rule 11(c)(1) requires the district court to inform the defendant of a statutory mandatory minimum sentence before accepting a guilty plea. Fed.R.Crim.P. 11(c)(1) (“Before accepting a plea of guilty ... the court must ... inform the defendant of, and determine that the defendant understands ... the mandatory minimum penalty provided by law....”). Because General did not seek withdrawal of his guilty plea on this ground in" }, { "docid": "23694055", "title": "", "text": "Cir.2009). Under this analysis, “the farther the judge’s sentence departs from the guidelines[,] the more compelling the justification based on factors in section 3553(a) that the judge must offer in order to enable the court of appeals to assess the reasonableness of the sentence imposed.” Courtland, 642 F.3d at 550 (internal quotation marks and punctuation omitted). A court’s explanation may be sufficient even if not framed in terms of a departure from the guidelines. Id. Lucas argues that the sentence is substantively unreasonable for two reasons. First, he contends that the 210-month sentence for a § 924(c) violation represents such a substantial increase over the applicable guidelines sentence of 84 months that it is unprecedented. As evidence, he points to the Supreme Court’s opinion in United States v. O’Brien, where Justice Kennedy noted that “most courts impose the mandatory minimum of 7 years’ imprisonment for brandishing a nonspecific weapon and the longest sentence that has come to the litigants’ or the Court’s attention is 14 years.” — U.S. -, 130 S.Ct. 2169, 2177, 176 L.Ed.2d 979 (2010). Because the Supreme Court could not identify a case where a defendant received more than a fourteen-year sentence for the same offense, and he received a seventeen-and-one-half-year sentence, Lucas posits that the sentence is substantively unreasonable. Lucas’s contention is unavailing. As discussed above, the maximum sentence for a conviction of § 924(c) is life imprisonment. Lucas’s sentence was (obviously) below this statutory maximum. The fact that we are unable to identify another case where a criminal defendant received a longer term of imprisonment does not render the sentence unreasonable; there must always be a first. Moreover, Lucas undercuts his own argument by noting the unusual procedural circumstances of his sentence. In most cases, a § 924(c) conviction is accompanied by a conviction for an underlying offense, and the seven-year mandatory minimum under § 924(c)(1)(A)(ii) would operate as a consecutive sentence. A defendant in such a case would necessarily already be facing a sentence greater than seven years without an upward variance from the mandatory minimum sentence for the § 924(c) conviction. And if" }, { "docid": "22257726", "title": "", "text": "person who” violates the use or possession prongs is subject to at least a five-year mandatory minimum. 18 U.S.C. § 924(c)(1)(A). As Robinson notes, we have already disagreed with his interpretation of the “except” clause. In United States v. Studifin, 240 F.3d 415, 423 (4th Cir.2001), we held that the clause creates a “safety valve” for higher punishments: if “any other provision of law” imposes a higher sentence for conduct violating § 924(c), the district court should impose that sentence, not the lower one specified in § 924(c). Though Robinson raised this claim to preserve it for possible further review, the Supreme Court’s recent decision in Abbott v. United States, — U.S. -, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010), eliminates that possibility. The Court held that § 924(c)’s “except” clause only applies where “another provision of law directed to conduct proscribed by § 924(c) imposes an even greater mandatory minimum.” Id., 131 S.Ct. at 23. In other words, the Court agreed with Studifin’s “safety valve” reading of the provision. See id., 131 S.Ct. at 30 (quoting Studifin, 240 F.3d at 423). Because Robinson’s greater mandatory minimum stems from the crack conspiracy rather than any § 924(c) firearm violation, he cannot benefit from § 924(c)’s “except” clause and was therefore properly sentenced. VII. Robinson calls our attention to a host of categories, tests, and frameworks: Rule 33 factors, two-pronged Brady analysis, constructive amendments, the Blockburger test, and the like. We have conscientiously reviewed each claim. None of them, properly employed, provides Robinson his requested relief. But it is well also to take a step back and not lose the forest for the trees. Viewed from this broader perspective, two facts stand out. First, Congress has strongly condemned the precise kind of conduct for which Robinson stands accused — conduct that destroys communities, families, and individual lives. Second, overwhelming evidence presented at a fair trial demonstrated Robinson’s guilt. Robinson asks us to discount these facts and focus myopically on particular details — the unrelated misconduct of police officers marginally involved with his remaining convictions and the various technical aspects of the" }, { "docid": "16321939", "title": "", "text": "section 841(a)(1), we focus on the latter.” United States v. Robinson, 241 F.3d 115, 118 (1st Cir.2001). The penalty for violating § 841(a)(1) varies according to the drug quantity involved. 21 U.S.C. § 841(b)(1); Robinson, 241 F.3d at 118. Under Minore, when drug quantity exposes a defendant to a higher statutory maximum sentence than he would otherwise face, drug quantity is a critical element of which the defendant must be adequately informed before a plea is accepted. Minore, 292 F.3d at 1115-1116. Here, the amount of drugs did expose Villalobos to a higher statutory maximum; Because Villalobos stipulated to 100-400 grams of heroin, he fell within the penalties outlined at § 841(b)(1)(B)(i) with a sentencing range of 5-40 years. The maximum sentence for a smaller or indeterminate amount of heroin is 20 years. 21 U.S.C. § 841(b)(1)(C). Since the drug quantity involved in the plea agreement exposed Villalobos to a higher statutory maximum sentence (40 years as opposed to 20 years), drug quantity was a critical element of the offense under Minore. Thus, the district court’s failure to inform Villalobos that the government would have to prove this element beyond a reasonable doubt violated Rule 11. See Minore, 292 F.3d at 1117. The Error Was Not Harmless Because Villalobos attempted to withdraw his plea in the district court on the basis of the Apprendi error, the harmless error standard applies. See United States v. Martinez, 277 F.3d 517, 524 & n. 8 (4th Cir.2002); United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002). To show that the error was harmless, the government must establish either that the record affirmatively demonstrates that the defendant “was aware of the rights at issue when he entered his guilty plea” or that the district court’s Rule 11 error was simply “minor or technical.” Minore at 1119. The government has failed to meet this burden. First, it is unable to make an “affirmative showing on the record that the defendant was actually aware of the advisement[that drug quantity had to be proved beyond a reasonable doubt],” Graibe, 946 F.2d at" }, { "docid": "22257724", "title": "", "text": "Robinson’s constructive amendment claim. Well-settled precedent supports the district court’s instructions. “[W]hen the Government charges in the conjunctive, and the statute is worded in the disjunctive, the district court can instruct the jury in the disjunctive.” United States v. Perry, 560 F.3d 246, 256 (4th Cir.2009). Moreover, agreeing with Robinson here would upend settled duplicity doctrine and let his already denied duplicity claim in through the back door. It is black letter law that duplicitous indictments can be cured through appropriate jury instructions. See, e.g., United States v. Mauskar, 557 F.3d 219, 226-27 (5th Cir.2009); United States v. Kakos, 483 F.3d 441, 445 & n. 1 (6th Cir.2007). If Robinson is right, though, all successful attempts at fixing duplicity are per se reversible constructive amendments. Floresca does not command any such result. VI. Robinson makes a few final contentions. First, he argues that under the Double Jeopardy Clause his § 924(c) convictions bar his § 924(o) conspiracy conviction. Because the former require proof the substantive crime was actually committed while the latter does not, and the latter requires proof of agreement but the former do not, these convictions satisfy the Double Jeopardy Clause. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). He also argues that his consecutive § 924(c) sentences accord with neither § 924(c)’s own meaning nor the prohibition against double jeopardy because his convictions had the same underlying predicate offense and stemmed from the same underlying course of criminal conduct. We rejected this argument in United States v. Camps, 32 F.3d 102 (4th Cir.1994). Just as the defendant in Camps was properly sentenced for each individual act in violation of § 924(e), Robinson was properly sentenced for the separate drugs-for-firearms trades alleged in Counts 3 and 9. Robinson argues further that he is not subject to mandatory mínimums under § 924(c) because he was subject to a twenty-year mandatory minimum for the crack conspiracy. The statute reads: “Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any" }, { "docid": "19656482", "title": "", "text": "firearm,” or to any person who “in furtherance of any such crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A). See United States v. Gill, 513 F.3d 836, 850-51 (8th Cir.2008). The indictment thus conflated the two alternative offenses defined in § 924(c). We conclude nevertheless that Todd waived his challenge to the indictment by pleading guilty. A guilty plea waives all defects except those that are “jurisdictional.” Camp v. United States, 587 F.2d 397, 399 (8th Cir.1978). Although we previously characterized ah indictment that fails to state an offense as a “jurisdictional defect,” United States v. Fitzhugh, 78 F.3d 1326, 1330 (8th Cir.1996), the Supreme Court clarified more recently that a defective indictment does not deprive a court of jurisdiction. United States v. Cotton, 535 U.S. 625, 632, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). Therefore, Todd’s challenge to the indictment does not raise a jurisdictional defect, and so long as his guilty plea was valid, his claim is waived. Todd argues, however, that his guilty plea was not valid, because the district court failed to comply with Federal Rule of Criminal Procedure 11. He first contends that the district court failed to inform him of “the nature of the charge” to which he was pleading guilty. Fed. R.Crim. Proc. 11(b)(1)(G). Todd asserts that the defective indictment did not set forth the “essential elements” of the offense, and that the court never informed him of the elements of the offense. At the plea hearing, Todd was not advised of the elements of the offense as stated by the indictment. Rather, the prosecutor recited the elements consistent with language in Todd’s plea agreement, which stated: “During and in relation to the commission of [a drug trafficking crime], the defendant knowingly carried and possessed a firearm in furtherance of that crime.” This iteration lumped the two offenses of § 924(c)(1)(A) into one sentence. By pleading guilty to the offense described at the plea hearing, Todd admitted both that he carried a firearm during and in relation to the commission of a drug trafficking crime, and that he possessed a firearm in furtherance" }, { "docid": "302480", "title": "", "text": "Therefore, we must now review the decision of the district court for plain error. See Fed.R.Civ.P. 52(b). Under the plain error test, “before an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Cotton, 535 U.S. 625, 631-632, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (internal citations omitted). “If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. Ill The Government initially argues that Burgin waived his constitutional right to present a claim under Apprendi when, after pleading guilty, there was an admission by him that he had committed three violent felonies, as defined by 18 U.S.C. § 924(e). In making this argument, the Government relies upon (1) a listing of all the elements of the offense that it had given to Burgin, (2) his guilty plea form, and (3) an admission by him that he had been previously convicted of three felonies, as defined under the ACCA. In opposition to the Government’s argument, Burgin contends that his guilty plea would be adversely affected by a waiver only if he had pled guilty to an indictment that had properly charged him with all of the elements of the offense. However, he submits that the Indictment was not only legally deficient, in that it was devoid of each and every requisite element of § 924(e), but the district court failed to identify all of the essential elements in the statute during the plea hearing. In deciding whether Burgin has affected a waiver that would preclude his appeal, we must clarify another issue that he has raised in this Court. While conceding guilt to three violent criminal offenses, it is Burgin’s contention that he never admitted that these felonies were committed on different occasions. In the Addendum to the Presentence Report, the Probation Officer wrote the defendant notes that the crimes in Portage County, Ohio occurred" }, { "docid": "22195678", "title": "", "text": "government filed a downward departure motion for substantial assistance under USSG § 5K1.1, Tramble was sentenced to a term of 200 months imprisonment and ten years of supervised release, to be served concurrently with a 200-month sentence and three years of supervised release as a result of his guilty plea to aiding and abetting money laundering. With an undetermined drug quantity, Stewart faced a maximum sentence of twenty years under 21 U.S.C. § 841(b)(1)(C). But the district court determined that she was responsible for 807.6 grams of crack cocaine, thereby exposing her to the penalty provisions of § 841(b)(1)(A), which carries a minimum sentence of ten years and a maximum of life imprisonment. Stewart was eventually sentenced to a term of 190 months’ imprisonment and five years of supervised release. On appeal, Stewart claims that her constitutional rights were violated because the indictment did not allege the drug quantity. As explained previously, we need not decide with respect to the issue of drug quantity whether Rossell, Tramble, or Stewart’s sentences violated Apprendi Even assuming that there was error, that was plain and that affected substantial rights, Olano, 507 U.S. at 732, 113 S.Ct. 1770, we still believe these Defendants would not be entitled to relief. This is so because even “[i]f all three [of these] conditions are met, an appellate court may ... exercise its discretion to notice a forfeited error, ... only if ... the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” United States v. Cotton, 535 U.S. 625, -, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002) (emphasis added). In Cotton, the Supreme Court dealt with an issue in a case analogous to the one now before this Court, where drug quantity in a vast drug conspiracy case was neither charged in the indictment nor proven beyond a reasonable doubt. The Court held that because the overwhelming evidence in the record showed that the defendants’ drug conspiracy involved drug quantities well above that necessary to impose sentences under the higher ranges of 21 U.S.C. § 841(b), then despite the fact that Apprendi had" } ]

[ { "docid": "23390873", "title": "", "text": "of the E.E.A. to administer and enforce the law under which it was created. There was no error in the denial of Gonzales’ motion for acquittal which was premised on the ground that the United States had not established that the statements were made in a matter within the jurisdiction of the E.E.A. At the request of the defendant, his asserted standard for determining what matters would be within the jurisdiction of the E.E.A. was included by the court in its instructions to the jury. Immediately following that instruction, however, the court, in effect, instructed the jury that the alleged statements were made in matters within the jurisdiction of the E.E.A. These instructions were not erroneous because the matter of whether a statement, which is established by the evidence, is within the jurisdiction of a department or agency of the United States, is a question for the courts to decide on the basis of the legislative history of the agency and the terms of the statute creating the agency and defining its powers. Pitts v. United States, 9 Cir., 263 F.2d 353, certiorari denied 360 U.S. 935, 79 S.Ct. 1457, 3 L.Ed.2d 1547; Terry v. United States, 8 Cir., 131 F.2d 40. Affirmed. . The Rural Electrification Administration will hereinafter be referred to as the “R.E.A.” . The leading cases holding that materiality is an essential element of all offenses included in the statute are: Weinstock v. United States, 97 U.S.App.D.C. 365, 231 F.2d 699; Freidus v. United States, 96 U.S.App.D.C. 133, 223 F.2d 598; Rolland v. United States, 5 Cir., 200 F.2d 678, certiorari denied 345 U.S. 964, 73 S.Ct. 950, 97 L.Ed. 1383. See also Sells v. United States, 10 Cir., 262 F.2d 815, certiorari denied 360 U.S. 913, 79 S.Ct. 1298, 3 L.Ed.2d 1262; and United States, v. Quirk, D.C.E.D.Pa., 167 F.Supp. 462, and cases cited. The leading cases holding that materiality is not an essential element of the offense except as to the first clause of the statute are: United States v. Silver, 2 Cir., 235 F.2d 375, certiorari denied 352 U.S. 880, 77 S.Ct. 102," } ]

[ { "docid": "14572598", "title": "", "text": "to make false statements as to the facts “within the jurisdiction” of the FDA. Thus the fact that source plasma (human) was not mentioned in the indictment is irrelevant. The indictment did not specify the basis for jurisdiction, but the trial court instructed the jury that two such bases exist. To the extent defendants were fully aware that the source plasma (human) regulations applied to their licensed facility, it should have been assumed that the Government would invoke the regulation as a basis for jurisdiction. To this end there was no improper shifting of the case. Defendants had notice and opportunity to prepare a defense. Defendants contend they were prejudiced by the trial court’s refusal to instruct the jury to consider “whether an agency has consciously acted to exclude an activity from its enforcement scheme” in deciding whether defendants’ false statements were “in a matter within the jurisdiction” of the FDA. The district court, however, correctly found jurisdiction and properly determined that this was a question of law which could be decided by the court. Gonzales v. United States, 286 F.2d 118, 123 (10th Cir. 1960), cert. denied, 365 U.S. 878, 81 S.Ct. 1028, 6 L.Ed.2d 190 (1961); Pitts v. United States, 263 F.2d 353, 358 (9th Cir.), cert. denied, 360 U.S. 935, 79 S.Ct. 1457, 3 L.Ed.2d 1547 (1959). The charge has been fully considered. It was fair and adequate both from the standpoint of the applicable law and as adjusted to the issues and the evidence. Defendants argue further that the court failed to allow the jury to take into account the decision of the FDA not to regulate products such as PTS at the time of the events alleged. Jurisdiction for purposes of § 1001 has been defined broadly as the power to act. United States v. Cartwright, 632 F.2d 1290, 1292 (5th Cir. 1980). Because agency power derives solely from Congress, it is the statutory grant of authority that is determinative rather than its exercise. There can be no question that the FDA at the time defendants were falsifying their donor records had statutory authority to" }, { "docid": "6294386", "title": "", "text": "It is the decision of this court that 18 U.S.C. § 1001 simply does not apply to the fact situation before us. Consideration of Appellant Bush’s contentions of error are therefore pretermitted. The decision of the court below is reversed and the case is remanded for the purpose of dismissal. . The text of the second affidavit typed by the IRS special agent and signed by Bush is set out below: . Only those cases in which the IRS agent is acting as a “policeman” are germane here. Most often, however, the merely “administrative” nature of such an agent is far removed from the basic situation which the “investigative exception” would cover, that is of a citizen directly approached by a law enforcement agent and asked incriminating questions by such agent. See, Paternostro v. United States, 311 F.2d 298 (5 Cir., 1962). RONEY, Circuit Judge (dissenting): I respectfully dissent. United States v. Lambert, 501 F.2d 943 (5th Cir. 1974), leaves no doubt in my mind that 18 U.S.C. § 1001 properly applies to statements made to the Internal Revenue Service. I agree with the majority to this extent. I do not agree, however, that the lengthy written statement made by Bush was equivalent to the exculpatory “no” dealt with in Paternostro v. United States, 311 F.2d 298 (5th Cir. 1962). The affidavit contained affirmative statements of false facts which the jury found to have been made willfully. That appears to me to be what Congress proscribed when it passed the 1970 version of 18 U.S.C. § 1001. Cf. United States v. Beacon Brass Co., Inc., 344 U.S. 43, 73 S.Ct. 77, 97 L.Ed. 61 (1952); United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598 (1941); United States v. McCue, 301 F.2d 452 (2d Cir.), cert. denied, 370 U.S. 939, 82 S.Ct. 1586, 8 L.Ed.2d 808 (1962); Cooper v. United States, 282 F.2d 527 (9th Cir. 1960); Brandow v. United States, 268 F.2d 559 (9th Cir. 1959); Pitts v. United States, 263 F.2d 353 (9th Cir.), cert. denied, 360 U.S. 935, 79 S.Ct. 1457, 3 L.Ed.2d 1547" }, { "docid": "23669248", "title": "", "text": "Brandow v. United States (9th Cir. 1959) 268 F.2d 559 (falsehoods in an affidavit filed with the Treasury Department) ; Pitts v. United States (9th Cir. 1959) 263 F.2d 353, cert. denied, 360 U.S. 935, 79 S.Ct. 1457, 3 L.Ed.2d 1547 (false statements in a personnel security questionnaire filed with the Atomic Energy Commission and certified by defendant) ; Cohen v. United States (9th Cir. 1953) 201 F.2d 386, cert. denied, 345 U.S. 951, 73 S.Ct. 864, 97 L.Ed. 1374 (false financial statement signed by defendant and delivered to Treasury Department agents conducting income tax investigations). . Judicial and congressional restiveness about the potential reach of § 1001 was one of the factors that led to the creation of The National Commission on Reform of Federal Criminal Laws. 1 U.S. Reform of Criminal Laws Nat’l Comm’n, Working Papers (1970) at 668-69. The Commission's proposed revision of § 1001 and related statutes eliminates the discrepancies among these statutes and clarifies the law. Under the proposed revisions, Bed-ord’s false statement would be unmistakably excluded. See Study Draft, Federal Criminal Code (1970) §§ 1352-1354, and comments thereto, pp. 122-26. . Friedman v. United States (8th Cir. 1967) 374 F.2d 363 held that § 1001 did not apply to an unsworn written statement given to the FBI falsely charging a state patrolman with assault and battery. The Friedman result was primarily predicated on the court’s restrictive reading of the term “jurisdiction” as used in § 1001, a position also taken by Circuit Judge Pickett, sitting as a district judge, in United States v. Levin (D.Colo.1953) 133 F.Supp. 88. Adler did not oppose Friedman on its alternative theory that § 1001 did not apply to statements made to federal agents during the course of a criminal investigation. Section 1353 of the 1970 proposed Criminal Code expressly deals with false reports of this kind. Supra note 1." }, { "docid": "14572596", "title": "", "text": "objects of the conspiracy in the indictment were independent. The language in the indictment concerning the conspiracy to make false statements did not focus on an alleged drug status of PTS. The word “drug” never appeared in the 39 false statement substantive counts. The defendants have failed to show that the withdrawal of portions of the conspiracy count had any effect upon the substantive false statement counts on which they were convicted. These counts do not mention PTS at all and allege that defendants made false statements by representing that “certain individuals had donated their plasma on certain dates at the [Miami] facilities ..., whereas in truth and fact, as they well knew, such individuals had not .... ” The Government’s decision not to pursue the FDC Act violations did not affect the remaining issues facing defendants. Neither Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), nor Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the two cases principally relied on by defendants, are applicable to this situation. The focus of defendants’ argument on this point involves the trial judge’s instructions. But the offenses charged simply had to do with the intentional making of false records, and the court committed no reversible error in instructing the'jury in accordance with the remaining counts of the indictment that went to trial. Jury Instructions Defendants argue that the district court expanded the scope of the indictment by instructing the jury that one basis for finding the false statements within FDA’s jurisdiction was the agency’s source plasma (human) regulations. They assert that this somehow transformed the case from a “PTS conspiracy” to a “source plasma (human) conspiracy.” They point out that the indictment does not mention source plasma (human). The shifting of this case from a “PTS conspiracy” to a “source plasma (human)” allowed conviction on a theory of criminal liability not charged in the indictment, according to defendants. The indictment, however, did not allege a “PTS conspiracy” or a “source plasma (human) conspiracy,” as defendants believe. It charged defendants with a conspiracy" }, { "docid": "14572602", "title": "", "text": "F.2d 1272, 1278 (5th Cir.), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 856 (1980); United States v. Markham, 537 F.2d 187 (5th Cir. 1976). A statement can be material even if it is ignored or never read by the agency receiving the misstatement. United States v. McIntosh, 655 F.2d at 83. “False statements must simply have the capacity to impair or pervert the functioning of a governmental agency.” United States v. Lichenstein, 610 F.2d at 1278. The defendants’ false records which untruthfully stated the donors and dates could impair the FDA in carrying out its responsibility for protection of the public health. Although they make much of the absence of any requirement that the records be kept for plasma use for noninjectable products, defendants concede that 18 U.S. C.A. § 1001 prohibits false statements generally, and not just those required by law or regulation. Since defendants kept false records which were material to the enforcement and regulatory responsibilities of the agency, the defendants cannot escape liability just because the agency regulations did not specifically require the keeping of those records. “A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.” Bryson v. United States, 396 U.S. 64, 72, 90 S.Ct. 355, 360, 24 L.Ed.2d 264 (1969). Dismissal Defendants argue that although the court’s jury instructions constituted reversible error requiring a new trial and the Government’s failure to prove that PTS was a drug as charged in the indictment warranted a judgment of acquittal, the defendants should never have been tried on this indictment in the first place. Specifically, they argue the original indictment tracked the language of inapplicable source plasma (human) regulations and charged the defendants with a variety of supposedly illegal actions, such as bleeding of hepatitis reactive donors and intoxicated donors, which were not illegal in 1975 with regard to PTS. In addition, they argue the grand jury charged that the defendants concealed and destroyed certain records “required by law to be maintained by them” with respect to PTS manufacture, and" }, { "docid": "18311319", "title": "", "text": "836, 78 S.Ct. 61, 2 L.Ed.2d 48. The trial court, recognizing this principle, specifically instructed the jury concerning the materiality of appellant’s statement. And in Blake v. United States, 323 F.2d 245, 246 (8 Cir. 1963) this court said: “In determining whether a false statement is material, the test is whether it ‘has a natural tendency to influence, or was capable of influencing, the decision of the tribunal in making a determination required to be be made.’ (Citations.)” This statement was subsequently approved in Brethauer, supra. Also see: Freidus v. United States, 96 U.S.App.D.C. 133, 223 F.2d 598, 601 (1955), and Brandow v. United States, 268 F.2d 559, 564-565 (9 Cir. 1959). Tested by this criteria, it appears that the “materiality” of the allegedly false statement is beyond question; no exception was taken to the trial court’s instruction concerning this matter. We are in agreement that the F.B.I. is an “agency” of the United States government. For a detailed history of the creation and purpose of the Federal Bureau of Investigation, and for the proposition that it is within the definition of “agency” within the meaning of the statute, see United States v. Stark, 131 F.Supp. 190, 194 (D.C.Md.1955). From the foregoing it is obvious that all of the essential elements of the statute are established in the instant case unless the “jurisdiction” of the F.B.I. to investigate crimes against the United States is not the “jurisdiction” envisioned by Section 1001. This must be determined by the interpretation placed on the word “jurisdiction”, and the test by which we are bound is the Congressional intent. Whether a matter is “within the jurisdiction” of a department or agency of the government, within the meaning of the statute is a question of law for determination by the court. The interpretation of that phrase must be made in the light of the legislative intent as it has been disclosed by the Acts of Congress. Terry v. United States, 131 F.2d 40, 44 (8 Cir. 1942); Pitts v. United States, 263 F.2d 353 (9 Cir. 1959), cert. den. 360 U.S. 935, 79 S.Ct. 1457," }, { "docid": "235542", "title": "", "text": "L.Ed.2d 134 (1961). The trial was conducted with scrupulous fairness to the prosecution and the defense alike. We find absolutely nothing in the comments or questions of Judge Cooper to warrant the charge that he was “an overt ally” of the Government. The contention that he was prejudiced is wholly without foundation and frivolous. As to the question of materiality, Section 1001 provides: Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both. We recognize that other circuits have held that materiality must be read into all the provisions of Section 1001. However, the statute is clearly written in the disjunctive and we have held that the prosecution is not obliged to prove the materiality of “false statements” alleged to have been made in violation of that section. See United States v. Marchisio, 344 F.2d 653 (2d Cir. 1965); United States v. Silver, 235 F.2d 375 (2d Cir.), cert. denied 352 U.S. 880, 77 S.Ct. 102, 1 L.Ed.2d 80 (1956). Moreover, we think the false statement cited in count 2 — the average number of employees in Nick's Auto Shop — was material to the issue of whether a first preference visa should be made available to one whose skill is in short supply in this country. Affirmed. . United States v. Zambito, 315 F.2d 266 (4th Cir.), cert. denied 373 U.S. 924, 83 S.Ct. 1524, 10 L.Ed.2d 423 (1963); Paritem Singh Poonian v. United States, 294 F.2d 74 (9th Cir. 1961); Gonzales v. United States, 286 F.2d 118 (10th Cir. 1960), cert. denied 365 U.S. 878, 81 S.Ct. 1028, 6 L.Ed.2d 190 (1961); Freidus v. United States, 96 U.S.App.D.C. 133, 223 F.2d 598 (1955); Rolland v. United States," }, { "docid": "14572599", "title": "", "text": "Gonzales v. United States, 286 F.2d 118, 123 (10th Cir. 1960), cert. denied, 365 U.S. 878, 81 S.Ct. 1028, 6 L.Ed.2d 190 (1961); Pitts v. United States, 263 F.2d 353, 358 (9th Cir.), cert. denied, 360 U.S. 935, 79 S.Ct. 1457, 3 L.Ed.2d 1547 (1959). The charge has been fully considered. It was fair and adequate both from the standpoint of the applicable law and as adjusted to the issues and the evidence. Defendants argue further that the court failed to allow the jury to take into account the decision of the FDA not to regulate products such as PTS at the time of the events alleged. Jurisdiction for purposes of § 1001 has been defined broadly as the power to act. United States v. Cartwright, 632 F.2d 1290, 1292 (5th Cir. 1980). Because agency power derives solely from Congress, it is the statutory grant of authority that is determinative rather than its exercise. There can be no question that the FDA at the time defendants were falsifying their donor records had statutory authority to regulate plasmapheresis centers. Under the FDC Act, Congress charged the FDA with the responsibility for ensuring that drugs and devices are not misbranded. In addition, the Supreme Court has consistently interpreted the FDC Act broadly in furtherance of its purpose to protect the public health. United States v. Park, 421 U.S. 658, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975). The fact that the regulations concerning noninjectable products which were proposed in 1974 were not finalized until 1976 does not preclude agency jurisdiction for purposes of 18 U.S.C.A. § 1001. Misbranding occurs when “labeling is false or misleading in any particular.” 21 U.S.C.A. § 352(a). Among the labeling used by defendants were packing lists which contained the names of donors and accompanied shipments of defendants’ products. To determine if these lists were accurate, it was necessary to check the donor records. The records were within the FDA’s jurisdiction because they provided the basis by which the FDA could determine compliance with the misbranding provisions of the FDC Act. Moreover, under the FDC Act the FDA is" }, { "docid": "14572600", "title": "", "text": "regulate plasmapheresis centers. Under the FDC Act, Congress charged the FDA with the responsibility for ensuring that drugs and devices are not misbranded. In addition, the Supreme Court has consistently interpreted the FDC Act broadly in furtherance of its purpose to protect the public health. United States v. Park, 421 U.S. 658, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975). The fact that the regulations concerning noninjectable products which were proposed in 1974 were not finalized until 1976 does not preclude agency jurisdiction for purposes of 18 U.S.C.A. § 1001. Misbranding occurs when “labeling is false or misleading in any particular.” 21 U.S.C.A. § 352(a). Among the labeling used by defendants were packing lists which contained the names of donors and accompanied shipments of defendants’ products. To determine if these lists were accurate, it was necessary to check the donor records. The records were within the FDA’s jurisdiction because they provided the basis by which the FDA could determine compliance with the misbranding provisions of the FDC Act. Moreover, under the FDC Act the FDA is authorized to inspect establishments in which drugs or devices “are manufactured, processed, packed, or held, for introduction into interstate commerce.... ” 21 U.S.C.A. § 374(a). Materiality Defendants contend that the false statements were immaterial because they were not relied on and could not and did not affect the functions of the Food and Drug Administration. They argue that no regulations required that any records be kept for the manufacture of PTS. To satisfy the element of materiality, it is enough if the statements had a “natural tendency to influence, or be capable of affecting or influencing, a governmental function.” United States v. Markham, 537 F.2d 187, 196 (5th Cir. 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 739, 150 L.Ed.2d 752 (1977). See United States v. McIntosh, 655 F.2d 80, 83 (5th Cir. 1981), cert. denied, 455 U.S. 948, 102 S.Ct. 1450, 71 L.Ed.2d 662 (1982); United States v. Carrier, 654 F.2d 559, 561 (9th Cir. 1981). The Government does not have to show actual reliance on the false statements. United States v. Lichenstein, 610" }, { "docid": "22976653", "title": "", "text": "86, 93, 61 S.Ct. 518, 85 L.Ed. 598 (1941); Pitts v. United States, 263 F.2d 353, 358 (9th Cir. 1959), cert. denied 360 U.S. 935, 79 S.Ct. 1457, 3 L.Ed.2d 1547. . Statements volunteered to an agency respecting matters within its competence fall within 18 U.S.C.A. § 1001. Pitts v. United States, 263 F.2d 353, 358 (9th Cir. 1959), cert. denied 360 U.S. 935, 79 S.Ct. 1457, 3 L.Ed.2d 1547; Cohen v. United States, 201 F.2d 386, 391-392 (9th Cir. 1953), cert. denied 345 U.S. 951, 73 S.Ct. 864, 97 L.Ed. 1374; Marzani v. United States, 83 App.D.C. 78, 168 F.2d 133, 141-142 (1948), aff’d 335 U.S. 895, 69 S.Ct. 299, 93 L.Ed. 431, reaff’d 336 U.S. 922, 69 S.Ct. 513, 93 L.Ed. 1075. Cf. Knowles v. United States, 224 F.2d 168, 172 (10th Cir. 1955). . Pitts v. United States, 263 F.2d 353, 356-357 (9th Cir. 1959), cert. denied 360 U.S. 935, 79 S.Ct. 1457, 3 L.Ed.2d 1547. There was testimony that as a matter of Air Force policy, requests for security clearances in anticipation of future needs were permitted. . Brandow v. United States, 268 F.2d 559, 565 (9th Cir. 1959), quoting with approval from United States v. Quirk, 167 F.Supp. 462, 464 (E.D.Pa.1958), aff’d 266 F.2d 26 (3d Cir. 1959). See also Pitts v. United States, 263 F.2d 353, 356 (9th Cir. 1959), cert. denied 360 U.S. 935, 79 S.Ct. 1457, 3 L.Ed.2d 1547. . The term “jurisdiction” is not used in the Act in a technical sense. Gonzales v. United States, 286 F.2d 118, 123 (10th Cir. 1960), cert. denied 365 U.S. 878, 81 S.Ct. 1028, 6 L.Ed.2d 190. See also Pitts v. United States, 263 F.2d 353, 357-358 (9th Cir. 1959), cert. denied 360 U.S. 935, 79 S.Ct. 1457, 3 L.Ed.2d 1547; Ebeling v. United States, 248 F.2d 429, 434 (8th Cir. 1957), cert. denied 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 261; United States v. Kenny, 236 F.2d 128, 130 (3d Cir. 1956), cert. denied 352 U.S. 894, 77 S.Ct. 133, 1 L.Ed.2d 87; United States v. Steiner Plastics Mfg. Co., 231 F.2d" }, { "docid": "22976652", "title": "", "text": "1323 (1959). . See United States v. Procter & Gamble Co., 356 U.S. 677, 683, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959). . Compare United States v. Annunziato, 293 F.2d 373, 382-383 (2d Cir. 1961), cert. denied 368 U.S. 919, 82 S.Ct. 240, 7 L.Ed.2d 134, and United States v. Giampa, 290 F.2d 83, 85 (2d Cir. 1961), and cases there cited, with Bary v. United States, 292 F.2d 53, 56 (10th Cir. 1961). The question was reserved in Rios v. United States, 256 F.2d 173, 178 (9th Cir., 1958), vacated on other grounds 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688. See Nw.U.L.Rev. 482, 497-501 (1960). . See Warszower v. United States, 312 U.S. 342, 347, 61 S.Ct. 603, 85 L.Ed. 876 (1941); Bryson v. United States, 238 F.2d 657, 662, n. 6 (9th Cir. 1956), cert. denied 355 U.S. 817, 78 S.Ct. 20, 2 L.Ed.2d 34. . See United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 85 L.Ed. 598 (1941); Pitts v. United States, 263 F.2d 353, 358 (9th Cir. 1959), cert. denied 360 U.S. 935, 79 S.Ct. 1457, 3 L.Ed.2d 1547. . Statements volunteered to an agency respecting matters within its competence fall within 18 U.S.C.A. § 1001. Pitts v. United States, 263 F.2d 353, 358 (9th Cir. 1959), cert. denied 360 U.S. 935, 79 S.Ct. 1457, 3 L.Ed.2d 1547; Cohen v. United States, 201 F.2d 386, 391-392 (9th Cir. 1953), cert. denied 345 U.S. 951, 73 S.Ct. 864, 97 L.Ed. 1374; Marzani v. United States, 83 App.D.C. 78, 168 F.2d 133, 141-142 (1948), aff’d 335 U.S. 895, 69 S.Ct. 299, 93 L.Ed. 431, reaff’d 336 U.S. 922, 69 S.Ct. 513, 93 L.Ed. 1075. Cf. Knowles v. United States, 224 F.2d 168, 172 (10th Cir. 1955). . Pitts v. United States, 263 F.2d 353, 356-357 (9th Cir. 1959), cert. denied 360 U.S. 935, 79 S.Ct. 1457, 3 L.Ed.2d 1547. There was testimony that as a matter of Air Force policy, requests for security clearances in" }, { "docid": "2117569", "title": "", "text": "not done so. This bill just amends the law so as to give the Federal Government authority to deal with that class of cases”) (emphasis added). The Supreme Court has stated that section 1001 should be construed broadly, and protects “myriad governmental activities.” See United States v. Rodgers, 466 U.S. 475, 480-81, 104 S.Ct. 1942, 1946-47, 80 L.Ed.2d 492 (1984); Bryson v. United States, 396 U.S. 64, 70, 90 S.Ct. 355, 359, 24 L.Ed.2d 264 (1969); Bramblett, 348 U.S. at 507, 75 S.Ct. at 507. Section 1001 applies when a declarant makes false statements to a legislative entity to gain a monetary benefit, e.g., Bramblett, 348 U.S. at 504, 75 S.Ct. at 505 (former congressman violated § 1001 by falsely representing that a person was entitled to compensation as his clerk); gives false information to avoid payments due the government, e.g., United States v. Knox, 396 U.S. 77, 78, 90 S.Ct. 363, 364, 24 L.Ed.2d 275 (1969) (declarant made false statements on wagering tax forms); attempts to gain a governmental privilege, e.g., Pitts v. United States, 263 F.2d 353, 360 (9th Cir.) (declarant sought Atomic Energy Commission security clearance), cert. denied, 360 U.S. 935, 79 S.Ct. 1457, 3 L.Ed.2d 1547 (1959); makes false statements, not realizing that they were made in matters within a federal agency’s jurisdiction, Yermian, 468 U.S. at 75, 104 S.Ct. at 2943, or fabricates a story that falsely accuses a third party of a crime, thus deliberately wasting agency investigative resources, see, e.g., Rodgers, 466 U.S. at 476, 104 S.Ct. at 1944 (declarant falsely stated that his wife had been kidnapped and that she was involved in a plot to assassinate the president); United States v. Adler, 380 F.2d 917, 919 (2d Cir.) (false statement that public officials had accepted bribes), cert. denied, 389 U.S. 1006, 88 S.Ct. 561, 19 L.Ed.2d 602 (1967). However, when a false statement does not fall within that “class of cases” that Congress conceivably could have intended to reach, courts have declined to apply section 1001, under varying rationales. This court has noted, that the statute, if read literally, could make" }, { "docid": "23422228", "title": "", "text": "At trial and on appeal one of the defendant’s main arguments is that the issue of materiality of the alleged misrepresentations on the requests for payment should not have been submitted to the jury; that as to some 25 counts, part or all of the items of alleged misrepresentation were related to several drugs which the proof clearly showed to be noncompensable under established guidelines used by the medicare payment agency in Denver (Colorado Blue Cross-Blue Shield); that since the statements related only to such non-compensable drugs, they were incapable of inducing payments, and were not material as a matter of law. Thus, it is argued, the convictions on these counts cannot stand. The governing principles are clear. Materiality of the alleged misstatements is an essential element of offenses defined by 18 U.S.C.A. § 1001. Gonzales v. United States, 286 F.2d 118, 120 (10th Cir.), cert. denied, 365 U.S. 878, 81 S.Ct. 1028, 6 L.Ed.2d 190 (1961). The indictment here alleged that defendant’s concealments, false statements and the like were of “material facts.” The trial court recognized materiality as an essential element of the offenses and so charged the jury. There must be sufficient Government proof under the standard applied in criminal cases that the alleged misstatement was material. See Poulos v. United States, 387 F.2d 4, 6 (10th Cir.). The application of these principles to a statement requesting payment from the Government has been made clear in Bartlett and Company Grain v. United States, 353 F.2d 338 (10th Cir.). That prosecution under 15 U.S.C.A. § 714m was for making a false statement to influence action of the Commodity Credit Corporation. A statement that grain was unloaded at a Kansas Warehouse was false. However, under documents governing authority for payment of the allowance sought, the court determined no payment was authorized unless grain was delivered “in store”; payment was not authorized if delivery was only “F.O.B. bin site.” The Government proof was held to be clearly of the latter type of transaction, according to the record exhibits. And since payment was unauthorized if the grain had been unloaded in accordance" }, { "docid": "2117570", "title": "", "text": "States, 263 F.2d 353, 360 (9th Cir.) (declarant sought Atomic Energy Commission security clearance), cert. denied, 360 U.S. 935, 79 S.Ct. 1457, 3 L.Ed.2d 1547 (1959); makes false statements, not realizing that they were made in matters within a federal agency’s jurisdiction, Yermian, 468 U.S. at 75, 104 S.Ct. at 2943, or fabricates a story that falsely accuses a third party of a crime, thus deliberately wasting agency investigative resources, see, e.g., Rodgers, 466 U.S. at 476, 104 S.Ct. at 1944 (declarant falsely stated that his wife had been kidnapped and that she was involved in a plot to assassinate the president); United States v. Adler, 380 F.2d 917, 919 (2d Cir.) (false statement that public officials had accepted bribes), cert. denied, 389 U.S. 1006, 88 S.Ct. 561, 19 L.Ed.2d 602 (1967). However, when a false statement does not fall within that “class of cases” that Congress conceivably could have intended to reach, courts have declined to apply section 1001, under varying rationales. This court has noted, that the statute, if read literally, could make “virtually any false statement, sworn or unsworn, written or oral, made to a Government employee ... a felony.” United States v. Bedore, 455 F.2d 1109, 1110 (9th Cir.1972). Accord United States v. Thevis, 469 F.Supp. 490, 513 (D.Conn.), aff'd, 614 F.2d 1293 (2d Cir.1979), cert. denied, 446 U.S. 908, 100 S.Ct. 1834, 64 L.Ed.2d 260 (1980). In Bedore, this court addressed whether section 1001 should apply when an individual makes a false statement to an F.B.I. agent in response to that agent’s inquiry. F.B.I. agents sought Bedore to serve him with a subpoena. When the agent asked Bedore his name, he replied that he was “Tom Halstead.” Id. at 1110. This court held that Bedore’s statement was not within the scope of section 1001. The court, reasoning from legislative history, stated that: [I]t is evident that section 1001 was not intended to reach all false statements made to governmental agencies and departments, but only those false statements that might support fraudulent claims against the Government, or that might pervert or corrupt the authorized functions of" }, { "docid": "18311320", "title": "", "text": "that it is within the definition of “agency” within the meaning of the statute, see United States v. Stark, 131 F.Supp. 190, 194 (D.C.Md.1955). From the foregoing it is obvious that all of the essential elements of the statute are established in the instant case unless the “jurisdiction” of the F.B.I. to investigate crimes against the United States is not the “jurisdiction” envisioned by Section 1001. This must be determined by the interpretation placed on the word “jurisdiction”, and the test by which we are bound is the Congressional intent. Whether a matter is “within the jurisdiction” of a department or agency of the government, within the meaning of the statute is a question of law for determination by the court. The interpretation of that phrase must be made in the light of the legislative intent as it has been disclosed by the Acts of Congress. Terry v. United States, 131 F.2d 40, 44 (8 Cir. 1942); Pitts v. United States, 263 F.2d 353 (9 Cir. 1959), cert. den. 360 U.S. 935, 79 S.Ct. 1457, 3 L.Ed.2d 1547, rehearing den. 361 U.S. 857, 80 S.Ct. 47, 4 L.Ed.2d 97; and Gonzales v. United States, 286 F.2d 118, 123 (10 Cir. 1961), cert. den. 365 U.S. 878, 81 S.Ct. 1028, 6 L.Ed.2d 190. While It is my understanding that there is no substantial disagreement concerning the interpretation of “statements” or “matter” or “department or agency” (as those terms are used in the statute), and their applicability to the facts herein present, I think it should clearly appear that a reversal must rest solely upon the interpretation of the word “jurisdiction”, and believe that significance should be attached to the very broad interpretation uniformly placed upon those other words by the Courts and the reasoning of those courts in arriving at their conclusions — reasoning involving consideration and application of the same general principles here required for ascertaining congressional purpose and intent. The majority refer to the legislative history of the statute and the circumstances under which the 1934 Amendment was passed and state: “Obviously, the immediate and primary purpose in amending" }, { "docid": "23669247", "title": "", "text": "not intended to embrace oral, unsworn statements, unrelated to any claim of the declarant to a privilege from the United States or to a claim against the United States, given in reponse to inquiries initiated by a federal agency or department, except, perhaps, where such a statement will substantially impair the basic functions entrusted by law to that agency. (Cf. Pa-ternostro v. United States (5th Cir. 1962) 311 F.2d 298; United States v. Stark (D.Md.1955) 131 F.Supp. 190.) Therefore, Bedord’s false statement of identity given to Henry is outside the scope of section 1001. The judgment is reversed with directions to dismiss the indictment. . We are not here concerned with those portions of § 1001 that penalize the use of false, fraudulent, or fictitious writings. Thus, certain previous decisions of this court are not helpful. See Neely v. United States (9th Cir. 1962) 300 F.2d 67, cert. denied, 369 U.S. 864, 82 S.Ct. 1030, 8 L.Ed.2d 84 (materially altered lease given to agents of the Internal Revenue Service investigating defendant’s income tax liability) ; Brandow v. United States (9th Cir. 1959) 268 F.2d 559 (falsehoods in an affidavit filed with the Treasury Department) ; Pitts v. United States (9th Cir. 1959) 263 F.2d 353, cert. denied, 360 U.S. 935, 79 S.Ct. 1457, 3 L.Ed.2d 1547 (false statements in a personnel security questionnaire filed with the Atomic Energy Commission and certified by defendant) ; Cohen v. United States (9th Cir. 1953) 201 F.2d 386, cert. denied, 345 U.S. 951, 73 S.Ct. 864, 97 L.Ed. 1374 (false financial statement signed by defendant and delivered to Treasury Department agents conducting income tax investigations). . Judicial and congressional restiveness about the potential reach of § 1001 was one of the factors that led to the creation of The National Commission on Reform of Federal Criminal Laws. 1 U.S. Reform of Criminal Laws Nat’l Comm’n, Working Papers (1970) at 668-69. The Commission's proposed revision of § 1001 and related statutes eliminates the discrepancies among these statutes and clarifies the law. Under the proposed revisions, Bed-ord’s false statement would be unmistakably excluded. See Study Draft," }, { "docid": "14572597", "title": "", "text": "applicable to this situation. The focus of defendants’ argument on this point involves the trial judge’s instructions. But the offenses charged simply had to do with the intentional making of false records, and the court committed no reversible error in instructing the'jury in accordance with the remaining counts of the indictment that went to trial. Jury Instructions Defendants argue that the district court expanded the scope of the indictment by instructing the jury that one basis for finding the false statements within FDA’s jurisdiction was the agency’s source plasma (human) regulations. They assert that this somehow transformed the case from a “PTS conspiracy” to a “source plasma (human) conspiracy.” They point out that the indictment does not mention source plasma (human). The shifting of this case from a “PTS conspiracy” to a “source plasma (human)” allowed conviction on a theory of criminal liability not charged in the indictment, according to defendants. The indictment, however, did not allege a “PTS conspiracy” or a “source plasma (human) conspiracy,” as defendants believe. It charged defendants with a conspiracy to make false statements as to the facts “within the jurisdiction” of the FDA. Thus the fact that source plasma (human) was not mentioned in the indictment is irrelevant. The indictment did not specify the basis for jurisdiction, but the trial court instructed the jury that two such bases exist. To the extent defendants were fully aware that the source plasma (human) regulations applied to their licensed facility, it should have been assumed that the Government would invoke the regulation as a basis for jurisdiction. To this end there was no improper shifting of the case. Defendants had notice and opportunity to prepare a defense. Defendants contend they were prejudiced by the trial court’s refusal to instruct the jury to consider “whether an agency has consciously acted to exclude an activity from its enforcement scheme” in deciding whether defendants’ false statements were “in a matter within the jurisdiction” of the FDA. The district court, however, correctly found jurisdiction and properly determined that this was a question of law which could be decided by the court." }, { "docid": "22976654", "title": "", "text": "anticipation of future needs were permitted. . Brandow v. United States, 268 F.2d 559, 565 (9th Cir. 1959), quoting with approval from United States v. Quirk, 167 F.Supp. 462, 464 (E.D.Pa.1958), aff’d 266 F.2d 26 (3d Cir. 1959). See also Pitts v. United States, 263 F.2d 353, 356 (9th Cir. 1959), cert. denied 360 U.S. 935, 79 S.Ct. 1457, 3 L.Ed.2d 1547. . The term “jurisdiction” is not used in the Act in a technical sense. Gonzales v. United States, 286 F.2d 118, 123 (10th Cir. 1960), cert. denied 365 U.S. 878, 81 S.Ct. 1028, 6 L.Ed.2d 190. See also Pitts v. United States, 263 F.2d 353, 357-358 (9th Cir. 1959), cert. denied 360 U.S. 935, 79 S.Ct. 1457, 3 L.Ed.2d 1547; Ebeling v. United States, 248 F.2d 429, 434 (8th Cir. 1957), cert. denied 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 261; United States v. Kenny, 236 F.2d 128, 130 (3d Cir. 1956), cert. denied 352 U.S. 894, 77 S.Ct. 133, 1 L.Ed.2d 87; United States v. Steiner Plastics Mfg. Co., 231 F.2d 149, 152 (2d Cir. 1956); United States v. Leviton, 193 F.2d 848, 851 (2d Cir. 1951), cert. denied 343 U.S. 946, 72 S.Ct. 860, 96 L.Ed. 1350; Nye & Nissen v. United States, 168 F.2d 846, 851 (9th Cir. 1948), aff’d 336 U.S. 613, 69 S.Ct. 766, 93 L.Ed. 919. . The essence of the Court’s instruction was contained in these four sentences: “Affiliation—it would be less than membership. You may find the defendant guilty of affiliation and not guilty of membership. Affiliation must be more than a casual relationship or an intermittent cooperation. It must be a continuous course of conduct on a fairly permanent basis.” . Hupman v. United States, 219 F.2d 243, 248 (6th Cir. 1955), cert. denied 349 U.S. 953, 75 S.Ct. 882, 99 L.Ed. 1278. . Killian v. United States, 368 U.S. 231, 254, n. 13, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961). . While the instructions approved in the Killian decision defined the terms “membership” and “affiliation” for the purposes of an affidavit filed with the National Labor Relations" }, { "docid": "14572590", "title": "", "text": "facility as required by regulation. In counts 48-54 the grand jury charged the Diazes with shipment in interstate commerce of adulterated and misbranded drugs. After the district court expressed doubt that the PTS was a drug, the Government dropped counts 48-54 and deleted all references to “drug” status in the conspiracy count. The Government also withdrew counts 41-43 involving false statements relating to consent forms. It is important to note that defendants never contested the falsity of the statements in donors’ records that formed the basis for counts 2-40. A central theme in the case is that such false statements were of the kind prescribed by 18 U.S.C.A. § 1001. That statute provides that an offense is committed against the United States by anyone who, “in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully .. . makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry.... ” Intertwined through various points on appeal is the notion that the false statements here made were not properly shown to have been “in any matter within the jurisdiction” of the Food and Drug Administration. To focus on that question properly, it is necessary to understand the regulatory framework for the defendants’ business. Regulatory Framework Congress has regulated the donation, manufacture, and use of human blood plasma and serum under two statutes, the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. § 301 et seq. (FDC Act), and the Public Health Service Act, 42 U.S.C.A. § 201 et seq. (PHS Act). Both are administered by the Food and Drug Administration (FDA). The FDA has promulgated a regulatory scheme for biological products. 21 C.F.R. §§ 600-680 (1982). The regulations provide for the registration of establishments collecting or manufacturing blood components. 21 C.F.R. § 607 (1982). Registration does not permit an establishment to ship blood or blood products in interstate commerce. 21 C.F.R. § 607.7(a) (1982). For this a license is required. The FDA grants establishment" }, { "docid": "14572593", "title": "", "text": "injectable use” limitation. 39 Fed.Reg. 26,164 (1974). In 1976 the FDA promulgated a regulation that defined source plasma (human) as “the fluid portion of human blood collected by plasmapheresis and intended as source material for further manufacturing use.” 21 C.F.R. § 640.60 (1982). This expanded definition is important here because the PTS produced by defendants is not used in the manufacture of injectable products. PTS is used in the manufacture of chemistry controls and other types of diagnostic products. Indictment The indictment filed by the grand jury alleged two types of wrongs committed by defendants: first, the making of false statements in violation of 18 U.S.C.A. .§ 1001, and second, the interstate shipment of the misbranded and adulterated PTS in violation of the FDC Act. The conspiracy count of the indictment accused defendants of conspiring to commit these two substantive offenses. Prior to trial the Government decided to abandon the second claim of FDC Act violations and its parallel allegations in the conspiracy count so that only the first type of wrong remained. The 40-count substantive allegations of making-false statements and counterpart provisions in the conspiracy count were tried to the jury- Defendants never contested the falsity of the statements in the four donor records that formed the basis for the 40 counts. Instead, defendants contended the statements were not within the jurisdiction of the FDA so they were not properly the basis of an 18 U.S.C.A. § 1001 violation. Defendants maintain that striking the FDC Act violations, which identified PTS as a drug, unlawfully amended the indictment. The indictment as revised by the Government and the count contained no allegations as to the drug status of PTS. Therefore, defendants argue the court’s instructions that the drug/device misbranding provisions of the FDC Act permitted the deter- initiation of agency jurisdiction necessary for guilt under 18 U.S.C.A. § 1001 to be based on the conclusion that PTS was either a drug or a device. This, they claim, was a theory not charged in the indictment. An indictment may charge a conspiracy with more than one distinct substantive offense, United States v." } ]

[ { "docid": "11979862", "title": "", "text": "never arise. • The first. question that confronts us, therefore; is whether under the. phrasing -of § 166 the petitioner as grantor reserved to himself a vested power over the title -of' any part of the corpus- of the trust The respondent by Article-166-1, Regulation 86, undertook to interpret the section as. providing for the taxation of income of a trust to the .grantor if there was a power to revoke upon the lapse of a period -of. years, or upon the happening of a specified event, regardless of whether such tim.e be fixed, determinable, or certain to come.. The petitioner contends that.§ 166 does not apply, and since not ambiguous may not be made to apply by regulation, because,' his' right of revocation is subject to ‘a--.contingency which has not yet happened and the happening of which is beyond his power to control. The Board sustained.the Conumssioner’s interpretation-of the statute. and the validity of his regulation. It draws a distinction between the existence of a power to revoke and the right to exercise that power. Even though the right to exercise the power to revoke may be contingent, it says, nevertheless the existence of the power during the tax year is not contingent. • The distinction is difficult .to apprehend. It is not consonant with generally accepted concepts of powers, for a power which is not presently exercisable and may. never be capable, of being exercised does not exist. 1, Sugden on Powers, 3d Amer. Ed., 371, 372.' It is difficult, therefore, to. comprehend that one may be vested with a. power that is not presently nor with certainty exercisable in futuro. The immediate precursor of § 166 was the similarly numbered section of the actj of 1928. That section provided for the taxing of trust, income to the grantor “Where the grantor of a trust has, at.any time during the ■ taxable year * * * the power -to revest in himself title to any part of. the corpus of the.trust * * 26 U.S.C.A. § 166 note. This opened the door, if indeed it did not invite," } ]

[ { "docid": "5888024", "title": "", "text": "power of revocation, which he never exercised, was not an asset of the taxpayer’s estate and gave him no interest in the corpus of the trusts under the law of Connecticut. State ex rel. Beardsley v. London & Lancashire Indemnity Co., 124 Conn. 416, 200 A. 567; McMurtry v. State, 111 Conn. 594, 151 A. 252; cf. United States v. Field, 255 U.S. 257, 41 S.Ct. 256, 65 L.Ed. 617, 18 A.L.R. 1461, and Restatement of Property, § 327. Though we may assume that this is so, the question remains whether an unfettered control over the corpus of a trust either in the grantor or in the donee of a power of revocation, who may appropriate it to his personal use, is not the equivalent of ownership of the property for tax purposes. The Commissioner relies on Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788, where the grantor was taxed on the income of a trust payable to his wife because he was entitled to the reversion after the expiration of a short term trust and, pending its duration, possessed extensive powers of investment and management. The theory was that the trust res essentially remained the property of the grantor and was at all times his for purposes of taxation. The power of revocation which, in the case at bar, was vested in the taxpayer under the five trusts and might at any time be exercised for his own benefit involved still greater control on his part than the powers of reinvestment retained by the grantor in Helvering v. Clifford, supra. Whatever may be the common law rule, which however has been modified by the National Bankruptcy Act § 70, 11 U.S.C.A. § 110, sub. a (3) and by statute in New York and elsewhere (see Restatement of Property § 327 Comment d), so as to subject such a power to the claims of creditors, it is a rule of property that ought not to determine the rights of the donee of the power if there is a clear public interest to the contrary. We cannot" }, { "docid": "14766857", "title": "", "text": "the trust was a revocable trust under Section 166 of the Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Code § 166, because under the agreement the corpus of the trust may revest in the grantor in case he survives his wife. The Board properly held that this argument was untenable. Helvering v. Wood, 309 U.S. 344, 60 S.Ct. 551, 84 L.Ed. 796. The Commissioner also contended before the Board that the grantor had in effect a power to revoke the trust, because all he had to do was to default in the payment of his notes, and the bank would thereupon foreclose upon the securities which constituted the trust estate and apply the same to the satisfaction of his private debt. The Board rejected this contention as ignoring the obligation of the grantor to reimburse the trust estate for any losses resulting from such foreclosure. In his brief before us the Commissioner does not renew his contentions with reference to Section 166 but relies only on one of his assignments of error, namely, that the Board erred in holding that the income was not taxable to the grantor under the provisions of Section 22(a). In common with Helvering v. Clifford, 309 U.S. 331, 60 S.Ct. 554, 84 L.Ed. 788, the grantor in the present case has made himself trustee with broad powers of management, and named his wife as beneficiary. There the correspondence ends. An important feature of the Clifford case was that the trust was of short duration; certiorari was granted “because of the importance to the revenue of the use of such short,term trusts in the reduction of surtaxes.” 309 U.S. at page 334, 60 S.Ct. at page 556, 84 L.Ed. 788. Here the trust, created at the time of marriage, is at least for the lifetime of the wife, and longer than that if she outlives her husband and exercises her power of appointment. In the Clifford case the corpus would surely revest in the grantor at the end of five years, and maybe sooner. Here the corpus will revest in the grantor only in the event that" }, { "docid": "6433383", "title": "", "text": "that court said: * * * The first question that confronts us, therefore, is whether under the phrasing of § 166 the petitioner as grantor reserved to himself a vested power over the title of any part of the corpus of the trust. The respondent by Article 166-1, Regulation 86, undertook to interpret the section as providing for the taxation of income of a trust to the grantor if there was a power to revoke upon the lapse of a period of years or upon the happening of a specified event, regardless of whether such time be fixed, determinable, or certain to come. The petitioner contends that § 166 does not apply, and since not ambiguous may not be made to apply by regulation, because his right of revocation is subject to a contingency which has not yet happened and the happening of which is beyond his power to control. The Board sustained the Commissioner’s interpretation of the statute and the validity of his regulation. It draws a distinction between the existence of a power to revoke and the right to exercise that power. Even though the right to exercise the power to revoke may be contingent, it says, nevertheless the existence of the power during the tax year is not contingent. The distinction is difficult to apprehend. It is not consonant with generally accepted concepts of powers, for a power which is not presently exercisable and may never be capable of being exercised does not exist. 1, Sugden on Powers, 3d Amer. Ed. 371, 372. It is difficult, therefore, to comprehend that one may be vested with a power that is not presently nor with certainty exercisable In futuro. [The 1928 Act] The immediate precursor of § 166 was the similarly numbered section of the act of 1928. That section provided for the taxing of trust income, to the grantor “where the grantor of a trust has at any time during the taxable year . . . the power to revest in himself title to any part of the corpus of the trust . . This opened the door," }, { "docid": "7926919", "title": "", "text": "passing at death but with interests theretofore created. The taxable event is a transfer inter vivos. But the measure of the tax is the value of the transferred property at the time when death brings it into enjoyment.” The petitioner contends that because the grantor had a possibility of regaining prior to his death the property transferred in trust by him, the transfer was intended to take effect in possession or enjoyment at or after his death. It would be bootless to reiterate in this opinion the circumstances of the cases discussed in Helvering v. Hallock. It is sufficient to state that in all the cases referred to in the majority opinion of the court as well as in the dissenting opinion of Mr. Justice Roberts a string or tie was inserted in the trust indenture whereby the grantor might pull back the corpus to himself upon the happening of some contingency terminable only by his death. This string or tie consisted usually of a provision in the agreement whereby the corpus revested in the grantor upon the termination of an earlier estate or where the grantor had the right upon the termination of an earlier estate to invade the corpus by destroying the trust. Typical among these cases is that of Bryant v. Helvering, considered in Helvering v. Hallock, supra, 309 U.S. at page 116, 60 S.Ct. at page 450, 84 L.Ed. 604, 125 A.L.R. 1368. The Bryant case is relied on strongly by the petitioner, but upon examination the distinction between it and the case at bar becomes apparent. In the Bryant case the indenture re served a joint power in the grantor and his wife during their lives and to either of them after the death of the other to modify, alter or revoke the trust. Such a provision is lacking in the indenture sub judice. The opinion of the Board of Tax Appeals and the briefs of the parties have dealt with the question of whether or not the estates created by the indenture after the life estates to the grantor and his wife are vested" }, { "docid": "11959955", "title": "", "text": "revest in the grantor title to any part of the corpus of the trust is vested in the grantor or any person not having a substantial adverse interest, then the income of such part of the trust shall be included in computing the net income of the grantor. It is conceded that in the light of the decision in Helvering v. Wood, 309 U.S. 344, 60 S. Ct. 551, 84 L.Ed. 796, no contention can now be made that income is taxable to the grantor under § 166, merely because he has reserved the right to receive the principal upon the death of his wife if he should then be living, for, as pointed out in that case, while a power to revest or revoke may in economic fact be the equivalent of reversion, yet the Congress seems to have drawn § 166 with the distinction between them in mind since mere reversions are not mentioned. Congress confined the section to trusts where there was a power to revest and did not extend it to trusts which might revert to the grantor, and there is no ambiguity lurking in the statute. The present grantor reserved no power to recall the corpus, though it may revert to him upon the death of his wife during his lifetime. The Commissioner contends, however, that even though § 166 does not apply, by reason of a power in the grantor to recall the corpus, nevertheless, under the provision in the trust instrument empowering the trustee to use principal for support, and under the provision for the termination of the trust upon attempts of beneficiaries to alienate or encumber interests therein, not only the income but the principal might be disbursed in satisfaction of the legal obligations of the grantor, and such disbursements would be equivalent for tax purposes to a distribution directly to the trustor under the doctrine of Douglas v. Willcuts, supra. This contention is perhaps sufficiently answered by our discussion of the tax obligation asserted under § 167. In addition, however, it must be recalled that during the tax years here in" }, { "docid": "7926920", "title": "", "text": "grantor upon the termination of an earlier estate or where the grantor had the right upon the termination of an earlier estate to invade the corpus by destroying the trust. Typical among these cases is that of Bryant v. Helvering, considered in Helvering v. Hallock, supra, 309 U.S. at page 116, 60 S.Ct. at page 450, 84 L.Ed. 604, 125 A.L.R. 1368. The Bryant case is relied on strongly by the petitioner, but upon examination the distinction between it and the case at bar becomes apparent. In the Bryant case the indenture re served a joint power in the grantor and his wife during their lives and to either of them after the death of the other to modify, alter or revoke the trust. Such a provision is lacking in the indenture sub judice. The opinion of the Board of Tax Appeals and the briefs of the parties have dealt with the question of whether or not the estates created by the indenture after the life estates to the grantor and his wife are vested estates. The Board held that the remainder estates were vested. We disagree with this conclusion. Clause IV (c) of the indenture provides for remainder over to the children of the grantor and his wife “now alive and then surviving” and provides also for “one equal part” of the trust res “in respect of each of the said children who may theretofore have died”, leaving husband, wife or issue surviving. In short, the remainder is not vested and cannot become vested until this class who will take can be ascertained and it cannot be ascertained until the survivor of the grantor and his wife dies. An estate may he said to be vested when the person or the class which takes the remainder is in existence or is capable of being ascertained when the prior estate vests. The estates following the life estates in the trust at bar do not meet this test, for the class contemplated as receiving the remainder must be composed of those children who were alive when the indenture was executed and" }, { "docid": "2603679", "title": "", "text": "as successor trustee. Under these facts the Commissioner, in determining the deficiencies, included the trust income in the income of the decedent. The Board of Tax Appeals held that the income of the trusts should be included in the income of the settlor-trustee because the trusts were lacking 'in substance and because the settlor-trustee had the substance of enjoyment of the trust property. To sustain the ruling the Commissioner relies on the reason assigned by the Board, and he also urges that under the terms of section 167 of the Revenue Act of 1932, where any part of the income of a trust is held or accumulated for future distribution to the grantor, such part of the income is to be included in computing the net income of the grantor. He contends that in this case the income was in fact accumulated during the taxable years, and under the terms of the trust instrument such income might have been distributed to the grantor after 1934 if he- had .exercised his power to revoke, and the fact that the grantor did not exercise his power is immaterial. He further says that the fact that the instrument did not compel the grantor to distribute the accumulated income to himself is unimportant. Petitioner relies upon Corning v. Commissioner, 6 Cir., 104 F.2d 329, in which it was held that income from trusts quite similar to those before us was not taxable to the grantor. That decision, however, relied upon Helvering v. St. Louis Trust Co., 296 U.S. 39, 56 S.Ct. 74, 80 L.Ed. 29, 100 A.L.R. 1239, which was expressly overruled on January 29, 1940, in Helvering v. Hallock, 60 S.Ct. 444, 84 L.Ed. -, 125 A.L.R. 1368. It is further contended by petitioner that under the facts here presented, section 167 does not require the inclusion of the trust income in decedent’s net income, because the power to determine whether the income should be accumulated was vested in John, who was the beneficiary of one-seventh interest in each trust, and therefore had a substantial adverse interest in the disposition of the trust" }, { "docid": "6028175", "title": "", "text": "S.Ct. 398, 75 L.Ed. 996, and Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, that an interest which, by the local property law, is a vested remainder subject to be divested upon the happening of some uncertain future event is nevertheless, for the purpose of the local tax statute, a contingent remainder. But in our opinion there is nothing in the District of Columbia statute which will justify this conclusion. In the District of Columbia the characteristics of a “vested interest” and a “contingent interest” have been firmly established by repeated decisions of this court, and likewise by statutory enactment. Congress, in enacting the law in .question, was legislating solely for the District, and in using the terms “vested” and “contingent” without defining them, recognized as valid for tax purposes the well established distinction between these two classes of estates. To hold otherwise would be to ignore the canon of construction which requires that every word of a statute be given its ordinary and natural meaning. In this view we are of opinion that the decisions in the' Klein and Hallock cases are inapplicable. In. each, the decedent had created a trust in favor of his wife, with a provision that if the husband survived the wife the property was to revert to him. In each case the Supreme Court held that the trust property should be included in the decedent’s gross estate under the Federal Revenue Act, which defines gross estate as including any property as to which there has been a transfer, by trust or otherwise, intended to take effect in possession or enjoyment at or after death. The rationale of the decisions was that it was the purpose of Congress to tax the transfer of interests which ripened into full enjoyment only at the death of the transferor, that this purpose could not be thwarted by the application of the “refined technicalities of the law of property” to inter vivos transactions which were in effect contingent upon and incomplete until death, and that the “importation of these distinctions and con" }, { "docid": "8920961", "title": "", "text": "74 L.Ed. 826, 67 A.L.R. 1244; hence a gift tax would be payable thereon (see Helvering v. Robinette, 3 Cir., March 23. 1942. 129 F.2d 8321, even though, by amendmen of the estate tax the whole of the trust property is includible in the donor’s gross estate. I.R.C. § 811(c) 26 U.S.C.A.Int.Rev.Code, § 811(c). See Paul, op. cit. § 17.12. The same is true of an irrevocable transfer in trust with the mere possibility of reverter to the grantor. Here it has been held that the grantor must pay a gift tax upon the value of the intermediate interests thereby created. Commissioner v. McLean, 5 Cir., April 23, 1942, 127 F.2d 942; Commissioner v. Marshall, 2 Cir., 1942, 125 F.2d 943. But the property is includible in the grantor’s gross estate for purposes of the estate tax. Helvering v. Hallock, 1940, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368. See Warren, supra, pp. 24 — 31. But where the question arising in gift tax litigation is whether there has been a completed gift inter vivos, we are bound by the Sanford case to correlate the gift tax with the estate tax, without regard to what happens under the income tax; and if the gift is incomplete from the viewpoint of the estate tax it must be regarded as incomplete for purposes of the gift tax. In the case at bar the donor has given up all power to get the property back, but he has retained in himself as settlor of the trust complete power, not only to control the disposition of the income among the named or described beneficiaries, but also to command at any time the distribution of the whole or any part of the principal to any' or all of such beneficiaries as he may see fit. There is no doubt that the retention of such a power renders the gift incomplete for purposes of the estate tax. I.R.C. § 811(c); Chickering v. Commissioner, 1 Cir., 1941, 118 F.2d 254, certiorari denied 314 U.S. 636, 62 S.Ct. 70, 86 L.Ed.-. “A gift to" }, { "docid": "2603680", "title": "", "text": "fact that the grantor did not exercise his power is immaterial. He further says that the fact that the instrument did not compel the grantor to distribute the accumulated income to himself is unimportant. Petitioner relies upon Corning v. Commissioner, 6 Cir., 104 F.2d 329, in which it was held that income from trusts quite similar to those before us was not taxable to the grantor. That decision, however, relied upon Helvering v. St. Louis Trust Co., 296 U.S. 39, 56 S.Ct. 74, 80 L.Ed. 29, 100 A.L.R. 1239, which was expressly overruled on January 29, 1940, in Helvering v. Hallock, 60 S.Ct. 444, 84 L.Ed. -, 125 A.L.R. 1368. It is further contended by petitioner that under the facts here presented, section 167 does not require the inclusion of the trust income in decedent’s net income, because the power to determine whether the income should be accumulated was vested in John, who was the beneficiary of one-seventh interest in each trust, and therefore had a substantial adverse interest in the disposition of the trust income. We think it is unnecessary to determine whether John had a substantial adverse interest in the disposition of this trust, because the income was already accumulated at the request of John and his co-advisory trustee. This being true, we think that section 167 plainly requires that it should be treated as income of the grantor for purposes of taxation. See Kaplan v. Commissioner, 1 Cir., 66 F.2d 401. Furthermore, it is clear that the income would be taxable to the grantor even though it could not be properly classified under section 167. In Helvering v. Clifford, 60 S.Ct. 554, 557, 84 L.Ed.-, decided by the Supreme Court, February 26, 1940, the Court in speaking of the specific provision in section 166 said: “We. should add that liability under § 22(a) is not foreclosed by reason of the fact that Congress made specific provision in § 166 [26 U.S. C.A. Int.Rev.Acts] for revocable trusts, but failed to adopt the Treasury recommendation in 1934 * * * that similar specific treatment should be accorded income from" }, { "docid": "22865466", "title": "", "text": "residue left in the grantor on determination of a particular estate. See Tiffany Real Property (2nd ed.) § 129 et seq., § 316 et seq. Congress seems to have drawn § 166 with that distinction in mind, for mere reversions are not specifically mentioned. Whether as a. matter of policy such nice distinctions should be perpetuated in a tax law by selecting one type of trust but not the other for special treatment is not for us. We have only the responsibility of carrying out the Congressional mandate. And where Congress has drawn a distinction, however nice, it is not proper for us to obliterate it. That seems to us to be the case here. Whether wisely or not, Congress confined § 166 to trusts where there was a “power to revest.” The problem of interpretation under § 16.6 is therefore quite different from that under § 22 (a). The former is narrowly confined to a special class; the latter by broad, sweeping language is all inclusive. Helvering v. Clifford, supra. Accordingly, the wide range for definition and specification under the latter is lacking under § 166. And so far as § 166 is concerned no ap-' parent or lurking ambiguity requires or permits us to divine a broader purpose than that expressed. The legis lative history corroborates this conclusion. When the 1934 Act was before the House Committee, the Treasury recommended that income from short term trusts and from revocable trusts should be taxable to the creator. The Congress adopted the latter by an appropriate amendment to § 166; but it did not select the former for special treatment. When such,clearochoice of ideas has been made in the drafting of a specific provision of the law, its language must be taken at its face value. Sec. 166 is therefore not applicable to this trust sinceRespond-ent is given no power to recall the corpus. He or his. estate gets it at the end of the term, on the death of his wife, or on his own death — whichever is the earliest. For a wholly different reason, petitioner’s argument based" }, { "docid": "23007144", "title": "", "text": "of South Norfolk, 4 Cir., 54 F.2d 1032, 1039. It seems that we musfdeal with Section 213, much as we would like to avoid it until the Supreme Court has had occasion in other cases to elaborate the doctrine of Helvering v. Clifford, 309 U.S. 331, 60 S, Ct. 554, 84 L.Ed. 788. When the income of a trust is not-taxable to'the \"grantor under the specific provisions of Section 219 (Sections 166 and 167 of-the present' act, 26 U.S.C.A. Int.Rev.Códe §§ 166, 167), it must be recognized' that there is a considerable margin of uncertainty as to how far the income is taxable to the grantor under- the blanket provisions of Section .213 (Section 22(a) of the present act, 26 U.S.C.A. Int. Rev. Code, § 22(a)). This uncertainty can be narrowed only by subsequent decisions of the Supreme Court. The terms of the trust instrument in the Clifford case differ widely in detail from those of the instruments now before us. The Higgins trusts are not short-term trusts, which was an important feature of the Clifford case. But Mr. Justice. Douglas pointed out in that case that “no one fact is normally decisive.” [309 U.S. 331, 60 S.Ct. 557, 84 L.Ed. 788.] The basic inquiry, as he states it, is whether the benefits directly or indirectly retained by the grantor blend so imperceptibly with the normal concepts of full ownership, that the grantor after the trust has been established may still be treated as the owner of the corpus. “Technical considerations, niceties of the law of trusts or conveyances, or the legal paraphernalia which inventive genius may construct as a refuge from surtaxes should not obscure the- basic issue.” 309 U.S. at page 334, 60 S.Ct. at page 556, 84 L.Ed. 788. Examining a typical trust set up by Mrs. Higgins, what is the extent of her dominion over the corpus? She is the dominant trustee under Article Sixth. She has broad powers of management, of investment and reinvestment, of sale of any of the trust property, either at public or private sale, without the necessity of a court decree." }, { "docid": "6433381", "title": "", "text": "thus amended. That change consisted in striking out the words “during the taxable year.” He advances no other ground for taxing the income of these trusts to petitioner. The income which the respondent seeks to tax as that of the taxpayer is that of trusts which must be assumed here to be juristic entities, for tax purposes, which the taxpayer did not and could not receive at any time. The controlling enactment reads: SEC. 166. REVOCABLE TRUSTS. Where at any time the power to revest in the grantor title to any part of the corpus of the trust is vested— (1) in the grantor * * *. The trust instruments may be susceptible of two constructions. The first is that the grantor thus created irrevocable trusts for terms of five years each. The second alternative is that the grantor taxpayer in the quoted trust deeds created trusts for terms longer than five years each. Upon either such premise of fact, the respondent is, we think, foreclosed by decisions of the courts and the Board. If it be found that the first alternative premise existed, then we have no more than irrevocable five-year term trusts, with a reversion, in the grantor, in each. The Supreme Court, in Helvering v. Wood, 309 U. S. 344, refused to apply the quoted enactment in such cases. On the other hand, if the second alternative condition of fact is found to obtain, then, since the power in the grantor to revest the corpora of these trusts could not be exercised unless and until the grantor lived for five years, that power did not exist during that period, which included the taxable year. That is to say, it can not, therefore, be said that “at any time the power to revest in the grantor title to any part of the * * * [corpora;] of the * * * [trusts] is vested — (1) in the grantor.” This conclusion, it seems to us, is inescapable in view of the decision of the Sixth Circuit Court of Appeals in Corning v. Commissioner, 104 Fed. (2d) 329, wherein" }, { "docid": "6545677", "title": "", "text": "grantor brings the trusts squarely within the provisions of section 166 of the [Revenue Act of 1934, relating to revocable trusts. It may be true, as the majority opinion points out, that subsequent events might happen, such as the settlor’s death prior to January 15, 1936, which would completely divest her of the power to revoke these trusts. Such a condition subsequent had not, however, happened during the taxable years here in question. During the taxable years 1934 and 1935 the settlor of the trusts was living and, in my judgment, was completely vested with a power to revoke the trusts, although such power was not exercisable until after January 15,1936, and this, I think, brings the trusts within the provisions of section 166, even though such power could not be exercised until then. Such cases as Corning v. Commissioner, 104 Fed. (2d) 329, and John Edward Rovensky, 37 B. T. A. 702, in my1 judgment, are not in point and do not support the conclusions reached in the majority opinion. In those cases the power to revoke the trusts was not vested in the grantor of the trusts during the taxable year, but was to vest only upon the happening of some future contingency, which might never happen. That fact I think makes the Corning case and the Rovensky case easily distinguishable from the instant case. As I have already stated, I think the facts of the instant case bring it squarely within the provisions of section 166 of the [Revenue Act of 1934, and, unless that section is unconstitutional when applied to such a situation as we have here, it seems to me that we must give it effect and tax the income of such trusts to the grantor thereof. Considering the nature of the trusts and that the beneficiaries werei petitioner’s four children, and that petitioner retained the unqualified right to revoke the trusts and revest in. herself the corpus after the lapse of only a few years, I see nothing to indicate that section 166, when applied to such a situation, is unconstitutional. Cf. DuPont v." }, { "docid": "6433382", "title": "", "text": "it be found that the first alternative premise existed, then we have no more than irrevocable five-year term trusts, with a reversion, in the grantor, in each. The Supreme Court, in Helvering v. Wood, 309 U. S. 344, refused to apply the quoted enactment in such cases. On the other hand, if the second alternative condition of fact is found to obtain, then, since the power in the grantor to revest the corpora of these trusts could not be exercised unless and until the grantor lived for five years, that power did not exist during that period, which included the taxable year. That is to say, it can not, therefore, be said that “at any time the power to revest in the grantor title to any part of the * * * [corpora;] of the * * * [trusts] is vested — (1) in the grantor.” This conclusion, it seems to us, is inescapable in view of the decision of the Sixth Circuit Court of Appeals in Corning v. Commissioner, 104 Fed. (2d) 329, wherein that court said: * * * The first question that confronts us, therefore, is whether under the phrasing of § 166 the petitioner as grantor reserved to himself a vested power over the title of any part of the corpus of the trust. The respondent by Article 166-1, Regulation 86, undertook to interpret the section as providing for the taxation of income of a trust to the grantor if there was a power to revoke upon the lapse of a period of years or upon the happening of a specified event, regardless of whether such time be fixed, determinable, or certain to come. The petitioner contends that § 166 does not apply, and since not ambiguous may not be made to apply by regulation, because his right of revocation is subject to a contingency which has not yet happened and the happening of which is beyond his power to control. The Board sustained the Commissioner’s interpretation of the statute and the validity of his regulation. It draws a distinction between the existence of a power" }, { "docid": "11439457", "title": "", "text": "control as if he alone had power to revoke the trust. While it is, of course, yet to be established that such device accomplishes its purpose, it is considered expedient to make it clear that in any of these cases the income shall be taxed to the grantor. The House bill made the grantor of a trust taxable upon the income of any part of the corpus of the trust where the power to revest in the grantor title to such part of the corpus was in the grantor glone or was in the grantor in conjunction with any person not having a substantial adverse interest in the disposition of such part of the corpus. Your committee has extended the scope of this provision so as to include, as well, the cases where the power to re-vest title to any part of the corpus is held, either alone or in conjunction with the grantor, by a person not having a substantial adverse interest in such part of the corpus or in the income therefrom.” Moreover, the Congress may make its own definition of a revocable trust. In enacting section 166 of the Revenue Act of 1932, it was dealing with the subject of taxation and designating the party who was to pay the tax on an income from a trust. It could use its own terms and define them. Consequently a trust might be deemed revocable for some purposes and not fall within the meaning Congress has given it, in defining who shall pay tax on an income derived from the trust. What the Congress was endeavoring to accomplish was to avoid the escape of taxes “ ‘by anticipatory arrangements and contracts * * * by which the fruits are attributed to a different tree from that on which they grew.’ Lucas v. Earl, 281 U.S. 111, 115 “50 S.Ct. 241, 74 L. Ed. 731.” Griffiths v. Helvering, 308 U.S. 355, 60 S.Ct. 277, 278, 84 L.Ed.-, decided December 18, 1939. The provision in these trust agreements whereby the commercial corporate trustee, whose sole duty was apparently to invest and" }, { "docid": "22865465", "title": "", "text": "to .revoke it prior to the end of the term. But in his contention that the trust here involved is covered by § 166, petitioner points out that there is no practical difference between a revocable trust and one certain to be terminated soon. And he argues that it would not be sensible to impute to Congress a purpose to impose the tax when the grantor has an executory power to revest title in himself but to withhold the tax when the grantor, by provisions in the trust deed, has already exercised that power. Our difficulty lies not in an inability to see the similarity of those situations but in being able to say that Congress treated them the same under § 166. A power .to revest or \"revoke may in economic fact be the equivalent of a reversion. But at least in the law of estates they are by no means synonymous. For, generally speaking, the power to revest ,pr to revoke an existing estate is discretionary with the donor; a reversion is the residue left in the grantor on determination of a particular estate. See Tiffany Real Property (2nd ed.) § 129 et seq., § 316 et seq. Congress seems to have drawn § 166 with that distinction in mind, for mere reversions are not specifically mentioned. Whether as a. matter of policy such nice distinctions should be perpetuated in a tax law by selecting one type of trust but not the other for special treatment is not for us. We have only the responsibility of carrying out the Congressional mandate. And where Congress has drawn a distinction, however nice, it is not proper for us to obliterate it. That seems to us to be the case here. Whether wisely or not, Congress confined § 166 to trusts where there was a “power to revest.” The problem of interpretation under § 16.6 is therefore quite different from that under § 22 (a). The former is narrowly confined to a special class; the latter by broad, sweeping language is all inclusive. Helvering v. Clifford, supra. Accordingly, the wide range" }, { "docid": "23007134", "title": "", "text": "10 Cir., 110 F.2d 934, 936, certiorari denied, October 14, 1940, 61 S.Ct. 26, 85 L.Ed. -; Rollins v. Helvering, 8 Cir., 92 F.2d 390, certiorari denied, 302 U.S. 763, 58 S.Ct. 409, 82 L.Ed. 592. Cf. Commissioner v. Morton, 7 Cir., 108 F.2d 1005. If the question comes to us again in a new case we shall feel free to re-examine it. But the question was fully and fairly presented to this court on the earlier appeal; the facts were simple and not in dispute; we overlooked no controlling authority; and there has been no intervening decision of the Supreme Court ruling the other way. The point is of shrunken im portance, 'from the standpoint of the revenue, becaüse since the- enactment of the Revenue Act of 1932 the income of a trust like those in the cases at bar will clearly be taxable to the grantor. Section 166 of the act, 26 U.S.C.A. Int.Rev.Acts, page 543, corresponding to old Section 219(g), now provides for taxation to the grantor not only where the power to revest is in the grantor as such, either alone or in conjunction with any person not having a substantial adverse interest,- but also where such power is vested “in any person not having a substantial adverse interest” which would, of course, include a trustee. Moreover, the income of a trust like those here involved would clearly be taxable to the grantor today under Section 167, 26 U.S.C.A. Int; Rev.Acts, ■ page 543, as income which is “held or accumulated for future distribution to the grantor.” Cf. Sawtell v. Commissioner, 1 Cir., 82. F.2d 221, 223. Under’ these circumstances we shall adhere to our earlier decision on Section 219 as'the law of the case. Appellees next press a technical objection to our consideration of Section 213 on the present appeal. The earlier appeal was from judgments for the Collector rendered by the District Court on the ground taken in the demurrers to the complaints, namely, that the income was taxable to the grantors under Section. 219. While the applicability of Section 213 was not raised" }, { "docid": "21330438", "title": "", "text": "trustee without reduction for expenses or compensation of the latter. Upon the death of the wife the trustee was at once to pay over the trust fund to the husband “or if he shall then be dead, to his legal representatives.” Taxation of the Interest of the Decedent in the 1912 Trust Fund. The future estate in the corpus of the trust of $100,000 reserved for the decedent on the death of'his wife “or if he shall then be dead, to his legal representatives” was the practical equivalent of a reservation to himself. The reversion which he had thus created was his property, fully taxable under Section 302 (a), which provides for taxation of the gross estate “to the extent of the interest therein of the decedent at the time of his death.” City Bank Farmers Trust Co. v. Miller, 278 N.Y. 134, 15 N.E.2d 553; Doctor v. Hughes, 225 N.Y. 305, 122 N.E. 221; Davies v. City Bank Farmers Trust Co., 248 App.Div. 380, 288 N.Y.S. 398. As Cardozo, J., remarked in Doctor v. Hughes (225 N.Y. at page 313, 122 N.E. at page 223): “There is no adequate disclosure of a purpose in the mind of this grantor to vest his presumptive heirs with rights which it would be beyond his power to defeat.” It is argued, however, that the interest reserved by the settlor is a contingent interest since an estate was limited to the “legal representatives”, and that under Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604, 125 A.L.R. 1368, the reserved interest can be taxed only if Section 302 (c) applies. That section provides for taxation: “To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in contemplation of or intended to take effect in possession or enjoyment at or after hits death, except in case of a bona fide sale for an adequate and full consideration in money or money’s worth. * * *” The appellant says that the reversion cannot be taxed because the transfer was in" }, { "docid": "6433395", "title": "", "text": "could not revest title to the corpus of the trust. * * * “There is no use, when raising surtaxes, to leave the way open, by the creation of these revocable trusts, for the avoidance of the imposition of those surtaxes. “My amendment, by striking out the words ‘during the taxable year’, would close this avenue of tax avoidance. * * *.” (78 Congressional Record, 6471.) Of course in the “year and a day trusts” the power was exercisable presently with a necessarily postponed effect. But so is the power here by its express terms. And see footnote 9D, infra. If the present grantor, having executed the “power to revest”, died before it became effective, the estate would naturally never “revest” in him. But neither would it under similar circumstances in the “year and a day” trust. This trust therefore seems indistinguishable from the year and a day trusts except on the narrow ground of the length of time involved. See Helvering v. Wood, 309 U. S. 344. “When the 1934 Act was before the House Committee, the Treasury recommended that income from short term trusts and from revocable trusts should be taxable to the creator. The Congress adopted the latter by an appropriate amendment to § 166; * * Whether reliance is placed on technical concepts thought to be implicit in the word “vested,” as it is in John Edward Rovensky, supra, and Edna B. Elias, supra, is not clear. But, if so, the opposite result should be reached, for by analogy to the law of real property the grantor’s right of revocation here would be “vested,” possibly subject to being divested, and not contingent. See Restatement of the Law of Property, pp. 534, 542, 562, 564; 1 Simes Law of Future Interests, 104. Since the decision relies heavily upon Corning v. Commissioner, 104 Fed. (2d) 329, it may not be amiss to note the following with respect to that case: A. Its authority has been greatly diminished by the subsequent disapproval of Helvering v. St. Louis Union Trust Co., 296 U. S. 39. See First National Bank of" } ]

[ { "docid": "22151201", "title": "", "text": "Procedure § 3604, at 607-08 (1975) (citing cases) [hereinafter cited as Wright, Miller & Cooper]. . Act of March 3, 1875, § 1, 18 Stat. 470. . 28 U.S.C. § 1332(a)(2) (1976), as amended by Foreign Sovereign Immunities Act of 1976, Pub.L. No. 94-583, § 3, 90 Stat. 2891. . The district court’s authority to dismiss non-diverse parties derives from F.R.C.P. 21 (Misjoinder and Non-joinder of Parties) which provides: 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 state of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately. . 3A Moore’s Federal Practice ¶ 21.03[2], at 21-14 (2d ed. 1979) [hereinafter cited as Moore’s]. . VWAG asserts that the possibility that Ivana is a joint tort-feasor is sufficient to establish her indispensability. But joint tort-feasors are merely permissive parties to an action, they are not indispensable. As the Court of Appeals for the Fifth Circuit recently held, “Rule 19, as amended in 1966, was not meant to unsettle the well-established authority to the effect that joint tort-feasors or coconspirators are not persons whose absence from a case will result in dismissal for nonjoinder.” Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir. 1970). . We, of course, make no determination whether VWAG may in fact have such a right against Ivana Field under the governing law, but note only that impleader may be available when there is a question of fact as to whether the parties are joint tort-feasors or whether the liability is primary or secondary, so that the defendant may be entitled to indemnity from the third party. 3 Moore’s ¶ 14.11 at 14-320. . VWAG asserts that impleader is not available here because Ivana is a party and Federal Rules of Civil Procedure 14(a) explicitly refers to “a person not a party to the action” in describing those who may be brought in. In view of our determination that" } ]

[ { "docid": "13167851", "title": "", "text": "U.S. 102, 125, note 22, 88 S.Ct. 733, 746, note 22, 19 L.Ed.2d 936 (1968). It is beyond peradventure that joint tortfeasors are not indispensable parties in the federal forum. See: Field v. Volkswagenwerk-AG, 626 F.2d 293, 298 n. 7 (3d Cir.1980); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1970); Windert Watch Co., Inc. v. Remex Electronics, Ltd., 468 F.Supp. 1242, 1246 (S.D.N.Y.1979); 7 Wright & Miller, Federal Practice and Procedure, § 1623 at 241-42 (1973 & Supp. 1981); Royal Truck and Trailer v. Armadora Maritime Salvadorena, 10 B.R. 488 (N.D. 111.1981); Jett v. Phillips & Associates, 439 F.2d 987 (10th Cir.1971); Sandobal v. Armour & Co., 429 F.2d 249 (8th Cir.1970); 3A Moore, Federal Practice ¶ 19.07(1) (2d ed. 1967). Indeed, the Advisory Committee Notes accompanying Rule 19 provide that “a tortfeasor with the usual ‘joint and several’ liability is merely a permissive party to an action against another with like liability” and “Joinder of these tortfeasors continues to be regulated by Rule 20”. Since the complaints at bar allege conditions of asbestosis resulting from exposure to products of both the solvent co-defendants and Unarco and/or J-M, the Chapter 11 debtors are joint tortfeasors and accordingly not indispensable. See also: In re Related Asbestos Cases, 23 B.R. 523 (N.D.Cal.1982); Austin v. Unarco Industries, Inc., 705 F.2d 1 (1st Cir.1983); Ashworth v. Johns-Manville Sales Corp., Case Nos. C78-470, C81-1545, C77-1088, C79-167 (N.D.Ohio Mar. 21, 1983); In re Stay of Proceedings Against Defendants Johns-Manville Corp. v. Unarco Industries, Inc., 99 Wash.2d 193, 660 P.2d 271 (S.C.Wash.1983) (en banc). Last, the solvent co-defendants of Unarco and J-M implore this Court to invoke its inherent power to stay proceedings. Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 163, 81 L.Ed. 153 (1936). It is submitted that the factors incorporated in Rule 19(b), Fed.R.Civ.P., as interpreted in Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968), should be employed, by analogy, to determine of such inherent power should be exercised. Particularly, the solvent co-defendants conjecture that a continuation of proceedings in the" }, { "docid": "8020256", "title": "", "text": "be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action. (b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a)(l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. . See, Prescription Plan Service Corp. v. Franco, 552 F.2d 493, 498 (2d Cir. 1977); Wolgin v. Atlas United Financial Corp., 397 F.Supp. 1003, 1012-13 (E.D.Pa.1975) aff'd, 530 F.2d 966 (3d Cir. 1976); Jett v. Phillips & Assoc., 439 F.2d 987, 990 (10th Cir. 1971): reaffirming rule that joint and several obligors are not indispensable parties. See generally, 3A Moore’s Federal Practice ¶ 19.10 at 2341 (2d ed. 1948). See, Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir. 1970); Wylain, Inc. v. Kidde Consumer Durables Corp., 74 F.R.D. 434, 436 (D.Del. 1977); U. S. v. Kates, 419 F.Supp. 846, 856 (E.D.Pa.1976); Dunlop v. Beloit College, 411 F.Supp. 398, 402 (W.D.Wis.1976); Hall v. E. I. DuPont DeNemours, Inc., 345 F.Supp. 353, 383 (E.D.N.Y.1972); Powell v. Kull, 329 F.Supp. 193, 195 (M.D.Pa.1971); Letmate v. Baltimore & Ohio Railroad, 311 F.Supp. 1059, 1063 (D.Md.1970): upholding the rule that joint tort feasors are not indispensable parties. See generally, 3A Moore’s Federal Practice ([ 19.07[1] at 2226 (2d ed. 1948)." }, { "docid": "17726822", "title": "", "text": "3 B.R. 375 (S.D.Tex.1980) (claims too interwoven to sever, although the bankruptcy court has authority to lift the stay as to less than all of the defendants); Rupp v. Cloud Nine Ltd. (In Re Cloud Nine, Ltd.), 3 B.R. 202 (Bkrtcy.D.N.M.1980) (relief from stay “will result in at best only a partial resolution of the issues and at worst will further complicate the issues and result in needless relitigation”); In re White Motor Credit Corp., 11 B.R. 294, 295 (Bkrtcy.N.D.Ohio 1981) (“for many reasons (perhaps including section 362 itself), products liability plaintiffs cannot dismiss a reorganization debtor and proceed against co-defendants only”). We agree that there might be cases in which additional considerations warrant a refusal to lift the stay as to some but not all of the co-defendants; we disagree only with the assertion that those considerations should be read into § 362. It is to those additional considerations that we now turn. Defendant argues that Unarco is a necessary party to this litigation and therefore that we should not allow the appeal to proceed against Raybestos alone. It urges that we apply standards analogous to the necessary and indispensable party criteria of Fed.R.Civ.P. 19. We. agree that despite the absence of a specific rule of appellate procedure authorizing the court to delay review in the absence of necessary parties, the court has the power to make such a determination. We do not agree, however, that this is a case warranting such delay. Joint tortfeasors are not considered indispensable parties under federal law. See Field v. Volkswagenwerk AG, 626 F.2d 293, 298 n. 7 (3d Cir.1980); Jett v. Phillips & Associates, 439 F.2d 987 (10th Cir.1971); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1970). The plaintiff will not be afford-ed incomplete relief. If she prevails on appeal and is entitled to a new trial on any of the issues she raises, she will be able to assert her full claim against Raybestos, leaving Raybestos to proceed against Unar-co for contribution. Whatever prejudice results to Raybestos from being forced to proceed without Unarco is simply that inherent in the" }, { "docid": "2052551", "title": "", "text": "applied to the relationship between PIIGI and PAC. The instruction listed all of the defendants to which the theory applied, and neither PIIGI nor PAC were among the defendants listed. We hold that the district court did not err in refusing to clarify further an already clear instruction on the applicability of the alter ego doctrine. VIL PAC AS AN INDISPENSABLE PARTY PIIGI finally contends that the district court erred in finding that PAC was not an indispensable party under Federal Rule of Civil Procedure 19(b). PAC, a subsidiary of PIIGI, was in bankruptcy at the time of trial and therefore suit against PAC was barred under the automatic stay. We review a district court’s decision as to whether a party is indispensable for an abuse of discretion. Navaho Tribe of Indians v. New Mexico, 809 F.2d 1455, 1471 (10th Cir.1987). We hold that the district court did not abuse its discretion in refusing to dismiss the action for want of an indispensable party. Here, PAC was alleged to have joint and several liability with PIGGI. The plaintiff had the choice of suing PAC or PIIGI or both under the doctrine of joint and several liability. That only PIIGI could be sued due to PAC’s bankruptcy does not render PAC an indispensable party, and the district court therefore did not abuse its discretion in refusing to dismiss the case under Rule 19(b). See Jett v. Phillips & Assoc., 439 F.2d 987, 990 (10th Cir.1971); Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194, 1198 (6th Cir.1988) (holding two potential defendants that were in bankruptcy at the time of trial were not indispensable parties requiring dismissal under Rule 19(b), because they were joint tortfeasors with the rest of the defendants); Field v. Volkswagenwerk AG, 626 F.2d 293, 298 n. 7 (3d Cir.1980); Fed.R.Civ.P. 19. Advisory Committee Note to the Amended Rule (noting that Rule 19 does not vary the “settled authorities” holding that a joint tortfeasor is merely a permissive party whose joinder is governed by Rule 20 (Permissive Joinder of Parties)); Charles A. Wright, et al., 7 Federal Practice and Procedure" }, { "docid": "22120943", "title": "", "text": "Federal Rules of Civil Procedure. Where joinder of a party would destroy subject matter jurisdiction, the court must dismiss the action if that party is ‘indispensable’ to the litigation.”). She bases this argument on the fact that her state court complaint identifies Jim Burke and MS Dealer as coconspirators and joint tortfeasors. However, that mere fact does not render Jim Burke an indispensable party. See Temple v. Synthes Corp., 498 U.S. 5, 7, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990) (per curiam) (“It has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit. ... The Advisory Committee Notes to Rule 19(a) explicitly state that ‘a tort-feasor with the usual “joint-and-several” liability is merely a permissive party to an action against another with like liability.’ ” (citations omitted)); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1970) (“Rule 19, as amended in 1966, was not meant to unsettle the well-established authority to the effect that joint tortfeasors or cocon-spirators are not persons whose absence from a case will result in dismissal for non-joinder.”); see also Pasco Int’l (London) Ltd. v. Stenograph Corp., 637 F.2d 496, 501 n. 10 (7th Cir.1980) (recognizing the “established principle” that coconspirators are not indispensable parties). Moreover, we note that (1) an arbitrator has already ruled in favor of Jim Burke on all of Franklin’s claims against it and (2) the state court has dismissed Franklin’s claims against Jim Burke with prejudice. A party is “indispensable” only if he meets either of the threshold tests of Rule 19(a) of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 19(b). That provision requires joinder if (1) in the person’s absence complete relief cannot be accorded among those already parties or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial" }, { "docid": "22120942", "title": "", "text": "does not affect jurisdiction in this, an independent action” to compel arbitration. Id. While acknowledging that the McCollum court has already specifically considered and rejected the argument Franklin raises here, she asks us to modify or reverse that case. We decline that request. See Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir.1998) (‘We are bound to follow a prior panel or en banc holding, except where that holding has been overruled or undermined to the point of abrogation by a subsequent en banc or Supreme Court decision.”). Alternatively, Franklin contends that diversity jurisdiction is lacking because Jim Burke is an “indispensable party,” as that term is defined in Rule 19 of the Federal Rules of Civil Procedure, to the petition to compel arbitration. See Doctor’s Assocs., Inc. v. Distajo, 66 F.3d 438, 445 (2d Cir.1995) (“As with any federal action, diversity of citizenship is determined by reference to the parties named in the proceeding before the district court, as well as any indispensable parties who must be joined pursuant to Rule 19 of the Federal Rules of Civil Procedure. Where joinder of a party would destroy subject matter jurisdiction, the court must dismiss the action if that party is ‘indispensable’ to the litigation.”). She bases this argument on the fact that her state court complaint identifies Jim Burke and MS Dealer as coconspirators and joint tortfeasors. However, that mere fact does not render Jim Burke an indispensable party. See Temple v. Synthes Corp., 498 U.S. 5, 7, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990) (per curiam) (“It has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit. ... The Advisory Committee Notes to Rule 19(a) explicitly state that ‘a tort-feasor with the usual “joint-and-several” liability is merely a permissive party to an action against another with like liability.’ ” (citations omitted)); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1970) (“Rule 19, as amended in 1966, was not meant to unsettle the well-established authority to the effect that joint tortfeasors or cocon-spirators are not persons whose" }, { "docid": "22216854", "title": "", "text": "362 itself), products liability plaintiffs cannot dismiss a reorganization debtor and proceed against co-defendants only. 11 B.R. at 295. These comments, however, are dicta. The scope of the automatic stay was not an issue in White Motor. Rather, White Motor involved the statutory authority of a bankruptcy judge to appoint a special master. Moreover, the cases relied upon by the bankruptcy judge to support his interpretation of the stay, Kalb v. Feuerstein, 308 U.S. 433, 60 S.Ct. 343, 84 L.Ed. 370 (1940) and Potts v. Potts, 142 F.2d 883 (6th Cir.1944), cert. denied, 324 U.S. 868, 65 S.Ct. 910, 89 L.Ed. 1423 (1945), did not involve the issue of the effect of the stay on co-defendants. In light of the clear language and legislative history of Section 362(a), the promulgation of a specific provision to stay proceedings against co-defendants of Chapter 13 debtors and case law interpretation, this court holds that Section 362 is limited in scope to the debtor and does not operate to stay actions against the co-defendants of this debtor. Moreover, it cannot be held that as a matter of law Manville is an indispensable party to the asbestos litigation. Under federal law, joint tortfeasors are not considered indispensable parties. Field v. Volkswagenwerk A.G., 626 F.2d 293, 298 n. 7 (3d Cir.1980); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1970); Windert Watch Co., Inc. v. Remex Electronics, Ltd., 468 F.Supp. 1242, 1246 (S.D.N.Y.1979), 7 Wright & Miller, Federal Practice and Procedure § 1623 at 241-42 (1973 & Supp. 1981). Further, a universal finding that Manville is an indispensable party to all the thousands of cases in which it is currently a defendant is not possible on the facts before the court today. This is because the essential inquiry in determining indispensability has been articulated as follows: There are two essential tests of an indispensable party: (1) can relief be afforded the plaintiff without the presence of the other party? (2) can the case be decided on its merits without prejudicing the rights of the other party? Pickett v. Paine, 199 S.E.2d 223 at 230, 230 Ga." }, { "docid": "2052552", "title": "", "text": "PIGGI. The plaintiff had the choice of suing PAC or PIIGI or both under the doctrine of joint and several liability. That only PIIGI could be sued due to PAC’s bankruptcy does not render PAC an indispensable party, and the district court therefore did not abuse its discretion in refusing to dismiss the case under Rule 19(b). See Jett v. Phillips & Assoc., 439 F.2d 987, 990 (10th Cir.1971); Lynch v. Johns-Manville Sales Corp., 710 F.2d 1194, 1198 (6th Cir.1988) (holding two potential defendants that were in bankruptcy at the time of trial were not indispensable parties requiring dismissal under Rule 19(b), because they were joint tortfeasors with the rest of the defendants); Field v. Volkswagenwerk AG, 626 F.2d 293, 298 n. 7 (3d Cir.1980); Fed.R.Civ.P. 19. Advisory Committee Note to the Amended Rule (noting that Rule 19 does not vary the “settled authorities” holding that a joint tortfeasor is merely a permissive party whose joinder is governed by Rule 20 (Permissive Joinder of Parties)); Charles A. Wright, et al., 7 Federal Practice and Procedure § 1622 at 342 (2d ed. 1986). CONCLUSION We REVERSE the judgment holding PII-GI liable for RICO fraud in the sale of securities under Count 1. We AFFIRM the judgments finding PIIGI liable for RICO wire fraud and RICO bank fraud under Counts 5 and 7. We REMAND for the entry of a new judgment against PIIGI in accordance with this opinion. . We will refer to the RTC and Standard Federal as “the Plaintiff” when referring to the RTC's arguments on appeal or Standard Federal's actions at trial. . . The Plaintiff did not sue PIIGI for state law fraud or for breach of fiduciary duty. . The Supreme Court has consistently held that the definition of security in the Securities Act of 1933 is virtually identical to the definition of a security in § 3(a)(10) of the Securities and Exchange Act of 1934. See Reves v. Ernst & Young, 494 U.S. 56, 61 n. 1, 110 S.Ct. 945, 949 n. 1, 108 L.Ed.2d 47 (1990). We therefore will refer to cases involving the" }, { "docid": "15957509", "title": "", "text": "neither a necessary nor indispensable party, but is merely a proper party. Plaintiff’s argument that complete relief cannot be obtained in Golightly’s absence misconstrues Rule 19(a)(1), which refers to relief as between the persons already parties and not relief between a party and the absent party whose joinder is sought. See 3A Moore’s Federal Practice ¶ 19.07-1[1]. The Court finds that complete resolution of the dispute between plaintiff and Diebold does not require the joinder of Golightly. See United States v. Arlington, 669 F.2d 925, 929 (4th Cir.1982). Furthermore, it is clear that persons whose liability is joint and several are not indispensable or necessary parties to an action against one of them merely because of the joint and several liability. See, e.g, Herpich v. Wallace, 430 F.2d 792 (5th Cir.1970); Letmate v. Baltimore & Ohio Ry. Co., 311 F.Supp. 1059 (D.Md.1970); Debbis v. Hertz Corp., 269 F.Supp. 671 (D.Md.1967); 3A Moore’s Federal Practice ¶19.07[1]. Since the Court has determined that Go-lightly is merely a proper party to this action, the specific issue raised by these motions is whether plaintiff may amend his complaint after removal to add a defendant who is merely a proper party and whose citizenship destroys the diversity jurisdiction of this Court which existed at the time of removal. Plaintiff contends that the amendment should be allowed under Rule 15, which relates to amended pleadings, and Rule 20, which relates to permissive joinder of parties. There is conflicting authority on this issue. In In re Merrimack Mutual Fire Insurance Co., 587 F.2d 642 (5th Cir. 1979), the Fifth Circuit ruled that a district court lacks discretion to allow the joinder of non-indispensable parties whose joinder after removal would destroy diversity. Id. at 647 n. 8. This ruling was based on a broad interpretation of Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), a case in which the Supreme Court held that a district court’s order to remand because of its calendar congestion did not state a reason falling within the exclusive grounds for remand stated in 28 U.S.C. §" }, { "docid": "15028609", "title": "", "text": "made “in consideration of one-half of the net proceeds of any recovery, after payment of attorneys’ fees and costs.” The first issue presented by this appeal is whether, absent the assignment, Tackett as a joint venturer with plaintiff was an indispensable party to the lawsuit. See Rule 19(a), Fed.R.Civ.P. The question of joinder in a diversity case is one of federal law. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 125 n.22, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968). The rule generally applied by federal courts is where two or more parties are joint obligees, they are indispensable parties in an action for enforcement of that obligation. Bry-Man’s, Inc. v. Stute, 312 F.2d 585, 587 (5th Cir. 1963); 3A Moore’s Federal Practice ¶ 19.11 at 2361 (1974). In the instant case, any obligation which might be owed by defendants would be owed to plaintiff and Tackett jointly pursuant to the terms of their contract with Peabody. Also, the rights, duties, and liabilities of plaintiff and Tackett’s joint venture are governed, in general, by principles of partnership law. Russell v. Thielen, 82 So.2d 143 (Fla.1955); 46 Am.Jur.2d Joint Ventures §§ 4, 57 (1969). Federal courts have held that in an action brought on a partnership contract, all members of the partnership are indispensable parties plaintiff. Grant County Deposit Bank v. McCampbell, 194 F.2d 469 (6th Cir. 1952); Charne v. Essex Chair Co., 92 F.Supp. 164 (D.N.J.1950); see Purcel v. Wells, 236 F.2d 469 (10th Cir. 1956). Accordingly, absent the assignment, Tackett was an indispensable party to this lawsuit. Because joinder of Tackett, a Florida corporation, would destroy the subject matter jurisdiction of the district court, Rule 19(b), Fed.R.Civ.P., requires the court to determine “whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed” by considering the four factors enumerated in the rule. The district court found that because of the availability of an adequate remedy in state court, and because of the possibility of a second suit by Tackett alone with an inconsistent result, the suit should not proceed" }, { "docid": "6605586", "title": "", "text": "that section 362(a)’s applicability must be determined by employing a Rule 19, Fed.R. Civ.P., analysis. Furthermore, in light of the Honorable William Thomas’ Order of September 8, 1982 in Clutter, supra, granting a stay of proceedings against solvent co-defendants in that case until November 2, 1982 or until it is determined whether Unarco and Johns-Manville are necessary or indispensable parties, we believe it appropriate to consider whether the debtor defendants are necessary or indispensable parties, using the analysis required by Rule 19, Fed.R.Civ.P. In effect, defendant Raymark is proposing a case-by-case approach. Ignoring possible objections to such an approach and assuming that a Rule 19 analysis is appropriate, we would nevertheless not reach the conclusion that a stay is required. Rule 19(a), Fed.R.Civ.P., provides in pertinent part: A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. A party who meets one of those tests is a necessary party. It is a well-established principle that Rule 19 does not require the joinder of joint tortfeasors, Provident Tradesman Bank & Trust v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968). Assuming, however that a Rule 19 analysis is required in every joint tortfeasor case, and assuming further that Unarco and Johns-Manville are necessary parties, we nonetheless do not find that they are indispensable parties. The first sentence of Rule 19(b) provides that if a necessary party under Rule 19(a) cannot be joined, the court shall determine whether in equity and" }, { "docid": "22216855", "title": "", "text": "cannot be held that as a matter of law Manville is an indispensable party to the asbestos litigation. Under federal law, joint tortfeasors are not considered indispensable parties. Field v. Volkswagenwerk A.G., 626 F.2d 293, 298 n. 7 (3d Cir.1980); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1970); Windert Watch Co., Inc. v. Remex Electronics, Ltd., 468 F.Supp. 1242, 1246 (S.D.N.Y.1979), 7 Wright & Miller, Federal Practice and Procedure § 1623 at 241-42 (1973 & Supp. 1981). Further, a universal finding that Manville is an indispensable party to all the thousands of cases in which it is currently a defendant is not possible on the facts before the court today. This is because the essential inquiry in determining indispensability has been articulated as follows: There are two essential tests of an indispensable party: (1) can relief be afforded the plaintiff without the presence of the other party? (2) can the case be decided on its merits without prejudicing the rights of the other party? Pickett v. Paine, 199 S.E.2d 223 at 230, 230 Ga. 786 (1973). An indispensable party is one who must be joined because his non-joinder is so prejudicial, both to his rights and to those of the parties already joined, that action cannot continue without him. Jones Knitting Corp. v. A.M. Pullen & Co., 50 F.R.D. 311, 314 (S.D.N.Y.1970). Accordingly, the determination of indispensability must be made on a case-by-case basis by the courts across the country where the asbestos litigation is pending. The facts of a particular case may render Manville an indispensable party. For example, if Manville supplied the major portion of asbestos products in a particular location it could be held to be unfair to proceed in Manville’s absence. That the indispensability is best determined on a case-by-case basis is illustrated by the divergent results reached by courts in applying a FRCP Rule 19 analysis. It would be most inappropriate for this court, without detailed knowledge of the specific factual contexts, to issue a sweeping ruling on Manville’s indispensability. This ruling is properly lodged with each individual trial court. This holding should not" }, { "docid": "13167850", "title": "", "text": "construction of Chapters 11 and 13 counsel that Congress did not envision or intend the § 362 stay to be utilized in a manner other than for the purpose of protecting the debtor and its estate. See also: In re Related Asbestos Cases, supra, 23 B.R. at 528; Pitts v. Unarco Industries, Inc., 698 F.2d 313 (7th Cir. 1983); In re Massachusetts Asbestos Cases, M.B.L. Nos. 1 & 2 (D.Mass. Sept. 23, 1982); In re Stay of Proceedings Against Defendants Johns-Manville Corporation and Unarco Industries, Inc., 99 Wash.2d 193, 660 P.2d 271 (S.C.Wash.1983) (en banc); Clutter v. Johns-Manville, et al, No. C-78-1229 (N.D. Ohio Aug. 2, 1982); In re UNR Industries, Inc., supra. The solvent co-defendants of Un-arco and J-M also urge a judicial classification of the Chapter 11 debtors as “indis-pensible” so as to mandate a stay of proceedings under Rule 19, Fed.R.Civ.P. Although the actions consolidated on appeal are uniformly predicated upon diversity, the issue of joinder and indispensability is one of federal law. Provident Tradesmans Bank & Trust Co. v. Patterson, 390 U.S. 102, 125, note 22, 88 S.Ct. 733, 746, note 22, 19 L.Ed.2d 936 (1968). It is beyond peradventure that joint tortfeasors are not indispensable parties in the federal forum. See: Field v. Volkswagenwerk-AG, 626 F.2d 293, 298 n. 7 (3d Cir.1980); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1970); Windert Watch Co., Inc. v. Remex Electronics, Ltd., 468 F.Supp. 1242, 1246 (S.D.N.Y.1979); 7 Wright & Miller, Federal Practice and Procedure, § 1623 at 241-42 (1973 & Supp. 1981); Royal Truck and Trailer v. Armadora Maritime Salvadorena, 10 B.R. 488 (N.D. 111.1981); Jett v. Phillips & Associates, 439 F.2d 987 (10th Cir.1971); Sandobal v. Armour & Co., 429 F.2d 249 (8th Cir.1970); 3A Moore, Federal Practice ¶ 19.07(1) (2d ed. 1967). Indeed, the Advisory Committee Notes accompanying Rule 19 provide that “a tortfeasor with the usual ‘joint and several’ liability is merely a permissive party to an action against another with like liability” and “Joinder of these tortfeasors continues to be regulated by Rule 20”. Since the complaints at bar allege conditions of asbestosis" }, { "docid": "13167852", "title": "", "text": "resulting from exposure to products of both the solvent co-defendants and Unarco and/or J-M, the Chapter 11 debtors are joint tortfeasors and accordingly not indispensable. See also: In re Related Asbestos Cases, 23 B.R. 523 (N.D.Cal.1982); Austin v. Unarco Industries, Inc., 705 F.2d 1 (1st Cir.1983); Ashworth v. Johns-Manville Sales Corp., Case Nos. C78-470, C81-1545, C77-1088, C79-167 (N.D.Ohio Mar. 21, 1983); In re Stay of Proceedings Against Defendants Johns-Manville Corp. v. Unarco Industries, Inc., 99 Wash.2d 193, 660 P.2d 271 (S.C.Wash.1983) (en banc). Last, the solvent co-defendants of Unarco and J-M implore this Court to invoke its inherent power to stay proceedings. Landis v. North American Co., 299 U.S. 248, 57 S.Ct. 163, 81 L.Ed. 153 (1936). It is submitted that the factors incorporated in Rule 19(b), Fed.R.Civ.P., as interpreted in Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968), should be employed, by analogy, to determine of such inherent power should be exercised. Particularly, the solvent co-defendants conjecture that a continuation of proceedings in the absence of J-M and Unarco will result in multiple and piecemeal litigation on a scale heretofore unknown in the history of American jurisprudence; initial litigation would transpire in the state and federal forums and then duplicative litigation would issue in the respective bankruptcy forums for indemnity or contribution thereby adversely impacting upon valuable judicial resources and generating a risk of inadequate and conflicting adjudications. Additionally the solvent co-defendants assert that the automatic stay of 11 U.S.C. § 362 precludes discovery upon J-M and Unarco thereby seriously compromising their ability to successfully defend pending actions. Confronting these arguments, it is initially observed that any duplicative or multiple litigation which may occur is a direct byproduct of bankruptcy law. As such, the duplication, to the extent that it may exist, is congressionally created and sanctioned. More importantly, however, any benefits which may derive to the solvent co-defendants from a stay are clearly outweighed by the countervailing interests of the plaintiffs. As the First Circuit has cogently observed: In a number of those [asbestos] cases, plaintiffs and crucial" }, { "docid": "23619655", "title": "", "text": "entirely independent codefendants, these considerations are not applicable herein. In light of the above authority, this court concludes that section 362 does not apply to claims against non-bankrupt codefendants. IV. There is no impediment to a severance of Unarco and Johns-Manville under Rule 19 of the Federal Rules of Civil Procedure, for they are not indispensable parties. Joint tortfeasors are not considered indispensable parties under federal law. Field v. Volkswagenwerk AG, 626 F.2d 293, 298 n.7 (3d Cir. 1980); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir. 1970); Kindle, supra; Windert Watch Co., Inc. v. Remex Electronics, Ltd., 468 F.Supp. 1242, 1246 (S.D.N.Y.1979); 7 Wright & Miller, Federal Practice and Procedure § 1623 at 241-42 (1973 & Supp. 1981). The court in Royal Truck considered that very point. The co-debtor contended that a stay of the proceedings was necessary because the bankrupt was an indispensable party under Rule 19. The court disagreed. In reaching its conclusion, the court analyzed the four interests suggested by Rule 19(b) that must be examined in each case to determine whether “in equity and good conscience” the court should proceed without a party whose absence from the litigation is desirable. The code-fendant in that case made the very arguments that are being presented to this court to justify extension of the stay to all parties: 1) an interest in avoiding multiple litigation, inconsistent relief, or sole responsibility for a liability defendant shares with another; 2) the interest of the courts and the public in complete, consistent and efficient settlement of disputes. The court rejected the co-debtor’s argument, premising its decision upon the joint and several liability of all codefendants. We are in accord with the result in Royal Truck. Hence, pursuant to Rule 21, FRCP, which provides: 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, and Rule 42(b), FRCP, which reads: The court, in furtherance of" }, { "docid": "13167849", "title": "", "text": "the Bankruptcy Act as a detailed and calculated statutory scheme particularly appropriate to in pari materia construction. See: In re Bell, 700 F.2d 1053 (6th Cir.1983) (construing Chapters 7 and 13 in pari materia); In re Fulg-hum Construction Corporation, 706 F.2d 171 (6th Cir.1983) (construing subsections of 11 U.S.C. § 547 in pari materia). In the action sub judice, such a construction of Chapters 11 and 13 of the Code support the proposition that Congress did not envision or intend the automatic stay of proceedings to be available to solvent co-defendants of a Chapter 11 debtor. Particularly, Chapter 13 expressly stays proceedings of creditors against co-debtors of the petitioner, 11 U.S.C. § 1301(a), whereas similar language is significantly absent from Chapter 11. Not only is the absence of any expansion of the scope the stay in Chapter 11 probative of congressional intent but, further, the pronouncement which does appear in Chapter 13 is extremely limited; it applies only to co-debtors rather than, as in.the action at bar, co-defendants of the petitioner. Accordingly, in pari materia construction of Chapters 11 and 13 counsel that Congress did not envision or intend the § 362 stay to be utilized in a manner other than for the purpose of protecting the debtor and its estate. See also: In re Related Asbestos Cases, supra, 23 B.R. at 528; Pitts v. Unarco Industries, Inc., 698 F.2d 313 (7th Cir. 1983); In re Massachusetts Asbestos Cases, M.B.L. Nos. 1 & 2 (D.Mass. Sept. 23, 1982); In re Stay of Proceedings Against Defendants Johns-Manville Corporation and Unarco Industries, Inc., 99 Wash.2d 193, 660 P.2d 271 (S.C.Wash.1983) (en banc); Clutter v. Johns-Manville, et al, No. C-78-1229 (N.D. Ohio Aug. 2, 1982); In re UNR Industries, Inc., supra. The solvent co-defendants of Un-arco and J-M also urge a judicial classification of the Chapter 11 debtors as “indis-pensible” so as to mandate a stay of proceedings under Rule 19, Fed.R.Civ.P. Although the actions consolidated on appeal are uniformly predicated upon diversity, the issue of joinder and indispensability is one of federal law. Provident Tradesmans Bank & Trust Co. v. Patterson, 390" }, { "docid": "11796600", "title": "", "text": "in a subsequent suit. While this Court has not been directed to any Canadian law on this point, the Court is satisfied that the Keene court’s finding of joint and several liability governs this case for the limited purpose of determining the applicability of Rule 19(a) of the Federal Rules of Civil Procedure. While it is true that questions of joinder have been considered to be primarily procedural issues, see Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 125 n. 22, 88 S.Ct. 733, 746 n. 22, 19 L.Ed.2d 936 (1968), and it is also true that issues of joinder involve a strong interest in maintaining an “independent system for administering justice,” Byrd v. Blue Ridge Rural Electric Co. v. New York, 356 U.S. 525, 538, 78 S.Ct. 893, 901, 2 L.Ed.2d 953 (1958), Canadian substantive law may be relevant to the joinder question before this Court. As Judge Wisdom has noted: “rules of joinder depend on the substantive rights and liabilities of the parties, present and absent. In diversity actions, these substantive rights and liabilities are creatures of state law.” Kuchenig v. California Co., 350 F.2d 551, 555-56 (5th Cir.1965), cert. denied, 382 U.S. 985, 86 S.Ct. 561, 15 L.Ed.2d 473 (1966). Although this Court can see little gain and conceivably some harm from applying foreign substantive law as a matter of governing state law to a joinder decision in a federal diversity case, foreign law may indeed determine the issue of “indispensability” in this case. For example, if Canadian law did not hold joint tortfeasors severally liable then as a matter of substantive “state” law the absent insurance companies would have a far greater interest in the outcome of this case. This Court, however, need not ascertain whether Canadian substantive law forces this Court to reach a conclusion different from that of the Keene court. The defendant has failed to bring any precedent to the Court’s attention indicating that Canadian law would not hold the defendant severally liable in this case. See Fed.Rule Civ.P. 44.1. As such, the defendant has failed to meet his burden" }, { "docid": "18745491", "title": "", "text": "of business is in Florida. However, at least three of the absent beneficiaries are citizens of New Jersey. Joinder of these absent beneficiaries would therefore destroy complete diversity. On December 3, 1984, the district court denied the appellants’ motion to dismiss, finding that although the absent beneficiaries were proper parties to the litigation, they were not indispensable parties. Thereafter, on February 8, 1985, the district court amended its order to certify to this court, pursuant to 28 U.S.C. § 1292(b) (1982), the issue of whether the absent beneficiaries of the land trusts were indispensable. The appellants thereupon petitioned this court for leave to appeal which was granted. II. The Supreme Court, in Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 125 n. 22, 88 S.Ct. 733, 746 n. 22, 19 L.Ed.2d 936 (1968) (citation omitted), has established that the question of joinder in a diversity case must be resolved in accordance with federal law. As the Court stated in that case: [I]t [is] clear that in a diversity case the question of joinder is one of federal law. To be sure, state-law questions may arise in determining what interest the outsider actually has, but the ultimate question whether, given those state-defined interests, a federal court may proceed without the outsider is a federal matter. Id. (citations omitted). The issue of whether joinder of the absent beneficiaries is required must therefore be decided within the framework of Fed.R.Civ.P. 19. See Morrison v. New Orleans Public Service Inc., 415 F.2d 419, 423 (5th Cir.1969). Joinder pursuant to Rule 19 involves a two-step inquiry. 3A J.W. Moore & J.D. Lucas, Moore’s Federal Practice ¶ 19.07-1[0] at 19-90 (2d ed. 1985). Subsection (a) of Rule 19 requires that “persons whose joinder is desirable from the standpoint of complete adjudication and elimination of relitigation” be joined where feasible. Schutten v. Shell Oil Co., 421 F.2d 869, 873 (5th Cir.1970). See also Fed.R. Civ.P. 19 note on 1966 amendment general considerations. Limitations on service of process, subject matter jurisdiction, and venue, however, may bar joinder in some cases. See Fed.R.Civ.P. 19 note on" }, { "docid": "23619654", "title": "", "text": "375 (D.C.S.D.Tex.1980), the district judge refused to permit a plaintiff to sever its claim against the bankrupt and proceed against the individual defendants, one of whom was a corporate officer of the bankrupt, on a charge of procuring monies by fraud and misrepresentation. The court stated that the allegations against the bankrupt and its officers were “inextricably interwoven, presenting common questions of law and fact, which can be resolved in one proceeding,” id. at 376, and “arise from the same factual and legal basis.” Id. at 377. Despite this language, the courtseemed to rest its conclusion not on the automatic stay provision, but on the court’s inherent discretion to permit or deny severance of actions in light of considerations of justice and efficiency. The reasoning of neither White Motor nor Federal Life appears to be determinative of the instant issues. Federal Life had emphasized that severance “would not be conducive to judicial economy and would unduly hinder the efforts of the Bankruptcy Court.” Id. at 376. With thousands of cases pending across the country, involving entirely independent codefendants, these considerations are not applicable herein. In light of the above authority, this court concludes that section 362 does not apply to claims against non-bankrupt codefendants. IV. There is no impediment to a severance of Unarco and Johns-Manville under Rule 19 of the Federal Rules of Civil Procedure, for they are not indispensable parties. Joint tortfeasors are not considered indispensable parties under federal law. Field v. Volkswagenwerk AG, 626 F.2d 293, 298 n.7 (3d Cir. 1980); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir. 1970); Kindle, supra; Windert Watch Co., Inc. v. Remex Electronics, Ltd., 468 F.Supp. 1242, 1246 (S.D.N.Y.1979); 7 Wright & Miller, Federal Practice and Procedure § 1623 at 241-42 (1973 & Supp. 1981). The court in Royal Truck considered that very point. The co-debtor contended that a stay of the proceedings was necessary because the bankrupt was an indispensable party under Rule 19. The court disagreed. In reaching its conclusion, the court analyzed the four interests suggested by Rule 19(b) that must be examined in each case to" }, { "docid": "17726823", "title": "", "text": "proceed against Raybestos alone. It urges that we apply standards analogous to the necessary and indispensable party criteria of Fed.R.Civ.P. 19. We. agree that despite the absence of a specific rule of appellate procedure authorizing the court to delay review in the absence of necessary parties, the court has the power to make such a determination. We do not agree, however, that this is a case warranting such delay. Joint tortfeasors are not considered indispensable parties under federal law. See Field v. Volkswagenwerk AG, 626 F.2d 293, 298 n. 7 (3d Cir.1980); Jett v. Phillips & Associates, 439 F.2d 987 (10th Cir.1971); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1970). The plaintiff will not be afford-ed incomplete relief. If she prevails on appeal and is entitled to a new trial on any of the issues she raises, she will be able to assert her full claim against Raybestos, leaving Raybestos to proceed against Unar-co for contribution. Whatever prejudice results to Raybestos from being forced to proceed without Unarco is simply that inherent in the principle of joint and several liability. Even absent a determination that Unarco is an indispensable party, we could stay the proceedings in the interest of judicial economy and fairness to the parties. The Supreme Court has indicated, however, that to be entitled to a stay, a party must demonstrate a clear case of hardship if there is a danger that the stay will damage the other party. Landis v. North America Co., 299 U.S. 248, 255, 57 S.Ct. 163,166, 81 L.Ed. 153 (1936); Dellinger v. Mitchell, 442 F.2d 782, 786-88 (D.C.Cir.1971). In this case, the damage to the plaintiff would be the financial hardship of being forced to wait for an undefined but potentially lengthy period before receiving the money to which she may be entitled. An additional consideration is that this is only one of a number of similar cases that have been and will be brought in the federal courts. In a number of those cases, plaintiffs and crucial witnesses are dying. We are not persuaded that the hardship to defendants of having" } ]

[ { "docid": "6286062", "title": "", "text": "“Mr. Kirk’s willful misconduct” before the Magistrate “constitutes criminal contempt of court.” The court ordered Kirk to pay a fine of $500 and further ordered him to appear at a second hearing to show cause why he should not be found again in criminal contempt for his statement to the court at the April 27 hearing that the documents “are in my files in Sacramento.” On October 19, 1979, Judge Conti conducted the second contempt proceeding against Kirk. After the court denied various of Kirk’s motions relating to his first conviction, Kirk’s counsel “submitted” the second matter without presenting any defense. The court found that Kirk’s statement to the court on April 27 was a lie and was criminal contempt of court. After considering subsequent motions filed by Kirk’s counsel as well as an affidavit filed by Kirk explaining his statement of April 27, the court issued a written order on November 30 making findings and holding Kirk in contempt of court. Kirk was sentenced to ten days in prison. Kirk appeals from both convictions. II. The Merits. Kirk argues that neither conviction was supported by the evidence. We agree and therefore reverse without reaching Kirk’s other arguments. In a case of criminal contempt, intent must be proved beyond a reasonable doubt. In re Floersheim, 9 Cir., 1963, 316 F.2d 423, 428. Although the precise nature of this intent is subject to controversy, see United States v. Smith, 9 Cir., 1977, 555 F.2d 249, 251, we recently adopted the Seventh Circuit’s position that “. . . [A]n attorney possesses the requisite intent only if he knows or reasonably should be aware in view of all the circumstances, especially the heat of the controversy, that he is exceeding the outermost limits of his proper role and hindering rather than facilitating the search for truth.” Hawk v. Cardoza, 9 Cir., 1978, 575 F.2d 732, 734-35, quoting In re Dellinger, 7 Cir., 1972, 461 F.2d 389, 400. Moreover, there can be no conviction for criminal contempt under 18 U.S.C. § 401 or 28 U.S.C. § 636(d) unless there has been such a “[misbehavior" } ]

[ { "docid": "8962086", "title": "", "text": "the judge was free to rehear testimony. In at least some circumstances, however, district courts did receive evidence and hear testimony, for Remington’s treatise noted that some courts had held in cases involving criminal contempt that the referee’s certificate constituted nothing more than a pleading and that the court was required to hear the evidence. See 9 H. Remington, Bankruptcy Law, § 3548, at 173-74. In fact, district courts received evidence, not only in criminal contempt cases, see, e.g., In re McIntosh, 73 F.2d 908 (9th Cir.1934); Haimsohn v. United States, 2 F.2d 441 (6th Cir.1924); Davidson v. Wilson, 286 F. 108 (3d Cir.1923); McNeil v. McCormack, 182 F. 808 (5th Cir.1910), but also in civil proceedings in which the alleged contemnor was threatened with coercive incarceration. See, e.g., Berkhower v. Mielzner, 29 F.2d 65 (6th Cir.1928); In re Goodrich, 184 F. 5 (1st Cir.1910). This differential treatment of cases involving incarceration is most likely attributable to the greater seriousness with which incarceration has traditionally been viewed. In sum, then, the following observations about the character of contempt proceedings under 11 U.S.C. § 69 may be made. First, the district court, in all circumstances, engaged in an independent review of the evidence presented to the referee and the facts found by him. Second, district courts did, at least in some circumstances, receive evidence and hear testimony during the contempt proceedings. Finally, whether the district court did receive evidence was dependent on the nature of the case before the court. While the courts used their discretion to determine whether they would receive evidence in a contempt proceeding under section 69, we will not adopt such an ad hoc procedure in civil contempt proceedings initiated under § 636(e). We find the better practice, and thus the one to be utilized in this circuit, is to set up a uniform standard of review which a district court can follow when reviewing a magistrate’s finding that its order had been violated and its certification of the facts under 28 U.S.C. § 636(a). Under 636(e), the magistrate shall “forthwith certify the facts to a judge" }, { "docid": "8396877", "title": "", "text": "“if the contempt charged involves disrespect to or criticism of” the judge (unless the defendant consents to that judge's hearing the matter). This creates a situation similar to that under 28 U.S.C. § 636(e), which allows the magistrate to certify to the district judge facts that would constitute contempt if the judge had been presiding, and empowers the judge to punish the contempt. True, I have been speaking just of criminal contempt. But section 636(e) extends to civil contempt as well (this is apparent from its last clause); and it would rarely be necessary to commit someone for civil contempt summarily. Considering the trend toward giving people charged with civil contempt procedural safeguards similar to the ones given those charged with criminal contempt, see, e.g., In re Rosahn, 671 F.2d 690, 697 (2d Cir.1982), we can safely assume that summary civil contempts are especially rare and that notice-and-hearing civil contempts are processed much like (though not identically to) Rule 42(b) criminal contempts — and therefore like contempt before a magistrate. See, e.g., Commodity Futures Trading Comm’n v. Premex, Inc., 655 F.2d 779, 782 n. 2 (7th Cir. 1981); Comment, Coercive Contempt and the Federal Grand Jury, 79 Colum.L.Rev. 735, 746-61 (1979). Anyway, civil contempt is an even less common sanction in modern federal civil litigation than criminal contempt. As a matter of logical implication from the text of the Constitution, I see no escape from the conclusion that section 636(c) is unconstitutional, especially as applied to diversity cases. But when logic points in one direction and the judges go in another, there usually is a better explanation for their action than the spirit of perversity. There is here. Since 1960, the caseload of the district courts has tripled and that of the courts of appeals has octupled, and there has not been a corresponding increase in the number of judges. The caseload has also become more varied and more difficult. The caseload crisis makes the idea of invalidating section 636(c) seem futile, unfair to the district courts, and ungrateful to Congress: in short, ill advised. This reaction is understandable, and" }, { "docid": "8962078", "title": "", "text": "Seventh Circuit stated: “According to section 636(e), if an individual commits an act constituting contempt of court, the magistrate must certify the facts of the incident to a district judge. The judge, after holding a hearing and evaluating the allegedly contemptuous conduct, may determine the nature and severity of appropriate punishment, if indicated.” Id. at 1044. This discussion, however, is not particularly instructive, for it is essentially nothing more than a paraphrase of the language of § 636(e) and does not specify the nature of the hearing required by that section. There have been previous cases involving contempt proceedings under § 636(e). In three of these cases — United States v. McCargo, 783 F.2d 507 (5th Cir.1986); In re Kirk, 641 F.2d 684 (9th Cir.1981); and Lindsey v. Jackson, 87 F.R.D. 405 (N.D.Miss.1980) — the alleged contemnor was allowed to testify before the district judge. In two other cases — Marshall v. Chromalloy American Corporation, Federal Malleable Division, 433 F.Supp. 330 (E.D.Wis.1977), aff'd, 589 F.2d 1335 (7th Cir.), cert. denied, 444 U.S. 884, 100 S.Ct. 174, 62 L.Ed.2d 113 (1979); and In re Establishment Inspection of Federal Clearing Die Casting Company, 484 F.Supp. 215 (N.D.Ill.1980), rev’d on other grounds, 655 F.2d 793 (7th Cir.1981) — there does not appear to have been any testimony before the district judge; moreover, the judge appears to have simply accepted the magistrate’s factual findings. In these latter two cases, however, there also does not seem to have been any dispute regarding the magistrate’s findings. Finally, in Litton Systems, Inc. v. American Telephone & Telegraph Co., 90 F.R.D. 410 (S.D.N.Y.1981), aff'd, 700 F.2d 785 (2d Cir.1983), a case which had been referred to the magistrate pursuant to § 636(b), the district court reviewed the magistrate’s findings in the same manner that it would have reviewed such findings in any other § 636(b) matter; in this particular case, the district court made its de novo determination solely on the basis of the record and did not hear the testimony of any witnesses. Given the lack of any substantive analysis of § 636(e) in any of the" }, { "docid": "18844043", "title": "", "text": "power, because, under no aspect of the Magistrate Act, can a magistrate punish for contempt. 28 U.S.C. § 636(e). According to section 636(e), if an individual commits an act constituting contempt of court, the magistrate must certify the facts of the incident to a district judge. The judge, after holding a hearing and evaluating the allegedly contemptuous conduct, may determine the nature and severity of appropriate punishment, if indicated. Unlike the relatively .mechanical entry of judgment, the power to punish for contempt of court is the means by which many court judgments, not including the collection of money judgments, are enforced. ... The vesting of this power exclusively in the hands of Article III judicial officers would seem, for present purposes at least, to provide an adequate distinction between such judges and non-Article III officers. This clear line also serves to limit the ultimate exercise of judicial power to persons enjoying the constitutional guarantee of independence.\" Geras v. Lafayette Display Fixtures, Inc., 742 F.2d 1037, 1044 (7th Cir.1984). See also Collins v. Foreman, 729 F.2d 108, 117 (2d Cir.), cert. denied, 469 U.S. 870, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984); Pacemaker Diagnostic Clinic of America v. Instromedix, 725 F.2d 537, 545 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984). . This power has been traced back to the practice of English common law courts. In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 1291, 8 L.Ed.2d 434 (1962); Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 635-36, 2 L.Ed.2d 672 (1958). The first mention of the contempt power in a statute of the United States was in section 17 of the Judiciary Act of 1789, 1 Stat. 73, 83, which stated that inferior federal courts \"shall have power to ... punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same....” This awesome power was unlimited until the Act of 1831, 4 Stat. 487, 488, which confined the summary power of punishment to misbehaviors in the presence of a" }, { "docid": "8962082", "title": "", "text": "In fact, the language of § 636(e) is nearly identical to that of former 11 U.S.C. § 69(b), the section which described the manner in which con-tempts committed before bankruptcy referees should be handled. Section 69(b), in its original form, provided as follows: The referee shall certify the facts to the judge, if any person shall do any of the things forbidden in this section. The judge shall thereupon, in a summary manner, hear the evidence as to the acts complained of, and, if it is such as to warrant him in so doing, punish such person in the same manner and to the same extent as for a contempt committed before the court of bankruptcy, or commit such person upon the same conditions as if the doing of the forbidden act had occurred with reference to the process of, or in the presence of, the court. Congress was clearly aware of the similarity between § 636(e) and § 69 when it enacted § 636, for the Senate Report on § 636 explicitly noted that the acts which were punishable as contempts under § 636 were the same as those specified in 11 U.S.C. § 69. See S.Rep. No. 371, 90th Cong., 1st Sess. 28 (1967). The nearly identical language of sections 636(e) and 69, coupled with Congress’ evident awareness when it drafted § 636 of the similarity between these two sections, would seem to indicate that an inquiry into the manner in which § 69 has been construed would be instructive in our attempt to determine the proper interpretation of § 636(e). The utility of such an inquiry is admittedly limited by the fact that the scope of the district court’s review of the referee's findings of fact in a contempt proceeding under 11 U.S.C. § 69 does not appear to have ever been completely and conclusively defined. There do, however, appear to be several general principles regarding the nature of such proceedings that may fairly be found to have been established. To begin with, it appears to have been understood that the district court was not bound by" }, { "docid": "8962079", "title": "", "text": "174, 62 L.Ed.2d 113 (1979); and In re Establishment Inspection of Federal Clearing Die Casting Company, 484 F.Supp. 215 (N.D.Ill.1980), rev’d on other grounds, 655 F.2d 793 (7th Cir.1981) — there does not appear to have been any testimony before the district judge; moreover, the judge appears to have simply accepted the magistrate’s factual findings. In these latter two cases, however, there also does not seem to have been any dispute regarding the magistrate’s findings. Finally, in Litton Systems, Inc. v. American Telephone & Telegraph Co., 90 F.R.D. 410 (S.D.N.Y.1981), aff'd, 700 F.2d 785 (2d Cir.1983), a case which had been referred to the magistrate pursuant to § 636(b), the district court reviewed the magistrate’s findings in the same manner that it would have reviewed such findings in any other § 636(b) matter; in this particular case, the district court made its de novo determination solely on the basis of the record and did not hear the testimony of any witnesses. Given the lack of any substantive analysis of § 636(e) in any of the above cases, however, we are reluctant to premise our conclusion on the basis of the holdings reached in them. Accordingly, we must turn to other sources in our attempt to determine the nature of the hearing required by § 636(e) in the circumstances presented by the instant case. As in all statutory interpretations, the primary source of guidance for our inquiry is the language of the statute itself. There are at least two conclusions that might tentatively be drawn from the language of § 636(e). First, the use of the phrase “shall ... hear the evidence” would, by its literal language, appear to mandate that the district judge is required to hear evidence. Second, the phrase “in a summary manner” seems to indicate that this hearing need not be de novo. The statutory language does not, however, provide support for any inferences beyond those just stated. The legislative history is not any more helpful in our quest to flesh out the character of the hearing contemplated by § 636(e). The House Report stated only that" }, { "docid": "2999106", "title": "", "text": "the district wherein the magistrate is' sitting: (1) disobedience or resistance to any lawful order, process, or' writ_ Upon the commission of any such act or conduct, the magistrate shall forthwith certify the facts to a judge of the district court and may serve or cause to be served upon any person whose behavior is brought into question under this section an order re quiring such person to appear before a judge of that court upon a day certain to show, cause why he should not be adjudged in contempt by reason of the facts so certified. A judge of the district court shall thereupon, in a summary manner, hear the evidence as to the act or conduct complained of and, if it is such as to warrant punishment, punish such person.... There can be no doubt that the provision covers criminal contempt proceedings. We have said as much. See Sequoia Auto Brokers, 827 F.2d at 1290 n. 16 (“Federal magistrates ... have no power of contempt themselves but must certify the facts to a judge of the district court.”); see also United States v. Ritte, 558 F.2d 926, 927 (9th Cir.1977) (per curiam) (“contemptuous acts ... related to proceedings before a magistrate must be referred to a district judge for adjudication.”); In re Kitterman, 696 F.Supp. 1866, 1368-69 (D.Nev.1988). The restriction is not unwise. The power to hold persons in criminal contempt is not only awesome, but is also an inherent power of Article III judges. Sequoia Auto Brokers, 827 F.2d at 1284. In fact, when upholding the constitutionality of the magistrate judge system itself, we noted that one of the ways that Article III court authority was preserved was found in the provision that “[d]is-triet courts retain the power to adjudge a party in contempt.” Pacemaker Diagnostic Clinic of Am., Inc. v. Instromedix, Inc., 725 F.2d 537, 545 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984). Similarly, when we upheld the power of a magistrate judge to impose discovery sanctions, we also opined that § 636(e), “which governs the jurisdiction" }, { "docid": "312087", "title": "", "text": "quash a warrant or to enforce a warrant through contempt proceedings remains with the federal district court. See, e.g., Donovan v. Blue Ridge Pressure Castings, Inc., 543 F.Supp. 53 (M.D.Pa.1981); In re Establishment Inspection of Federal Clearing Die Casting Co., 484 F.Supp. 215 (N.D.Ill.1980); Marshall v. Huffines Steel Co., 478 F.Supp. 986 (N.D.Tex.1979). Any action by OSHRC, in contrast, pertains only to the citation involved in statutory enforcement proceedings. See In re Worksite Inspection of Quality Products, Inc., 592 F.2d 611, 615 (1st Cir.1979). In addition, an OSHRC determination is not the final word. Any decision by OSHRC is subject to review by a federal court of appeals. 29 U.S.C. § 660(a). No party, therefore, is denied review of its constitutional claims by an Article III court. The only issue is whether by-passing the district court results in any serious ramifications. Under the Magistrates Act, a district court retains general supervisory power to review any action taken by a federal magistrate. See generally 28 U.S.C. § 636. This is because the magistrates themselves are not Article III judges. Magistrates are allowed to perform “inherently judicial” acts only because they act under the supervision of an Article III judge. See United States v. Raddatz, 447 U.S. 667, 681-84, 100 S.Ct. 2406, 2415-2416, 65 L.Ed.2d 424 (1980); Mathews v. Weber, 423 U.S. 261, 266-72, 96 S.Ct. 549, 552-555, 46 L.Ed.2d 483 (1976); see, e.g., United States v. De la Torre, 605 F.2d 154 (5th Cir.1979). Decisions by a magistrate pursuant to 28 U.S.C. § 636(b) are nqt final orders and may not be appealed until rendered final by a dis trict court. Glover v. Alabama Board of Corrections, 660 F.2d 120, 122 (5th Cir.1981) (Unit B). The principal consideration prompting the requirement of formal judicial review, and indeed the concept underlying the establishment of an Article III judiciary, is the desire to insulate judicial acts from executive and legislative coercion. Id. at 124 (citing O’Donoghue v. United States, 289 U.S. 516, 531, 53 S.Ct. 740, 743, 77 L.Ed. 1356 (1933).). Therefore, the proper method to ensure that a magistrate’s determination remains untainted" }, { "docid": "8962076", "title": "", "text": "by reason of the facts so certified. A judge of the district court shall thereupon, in a summary manner, hear the evidence as to the act or conduct complained of and, if it is such as to warrant punishment, punish such person in the same manner and to the same extent as for a contempt committed before a judge of the court, or commit such person upon the conditions applicable in the case of defiance of the process of the district court or misconduct in the presence of a judge of that court. Proctor contends that, in contempt proceedings in which the parties have consented to referral to the magistrate, the district court has no authority to review the magistrate’s factual findings and the court of appeals is limited to determining whether such findings were clearly erroneous. This would essentially result in the same type of review as that normally followed in proceedings under § 636(c). We decline to adopt Proctor’s interpretation of the district court’s responsibilities under § 636(e), however, for it is contrary to the plain language of that section, which explicitly states that the district judge shall hear the evidence regarding the act in question. We find instead that Congress, in enacting § 636(e), intended to create a distinct procedure, apart from that normally applicable to proceedings under either § 636(b) or § 636(c). In particular, we must interpret § 636(e)’s direction that, after the magistrate has certified the facts to the district court, the district judge “shall thereupon, in a summary manner, hear the evidence as to the act or conduct complained of.” It appears that no case has thus far explicitly addressed the issue of the type of hearing required by § 636(e) in a civil contempt proceeding. Further, those cases which discuss § 636(e) have apparently found it unnecessary to engage in any in-depth analysis of that section, at least in the context of the immediate issue. In Geras v. Lafayette Display Fixtures, Inc., 742 F.2d 1037 (7th Cir.1984), the Seventh Circuit, in upholding the constitutionality of § 636(c), briefly discussed § 636(e). The" }, { "docid": "8962081", "title": "", "text": "“[pjroposed 28 U.S.C. 636(d) [subsection (d) was redesignated as subsection (e) in 1979, see Federal Magistrate Act of 1979, § 2(1), Pub.L. No. 96-82, 93 Stat. 643 (1979) ] provides that specified acts or conduct before a magistrate shall constitute contempt of the U.S. district court of the district in which the magistrate is sitting.” H.R.Rep. No. 1629, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Ad. News 4252, 4262. The Senate Report, although it discusses § 636(e) at greater length, also does not describe in any detail the nature of the hearing required under that subsection. It therefore appears that the case law, the statutory language, and the legislative history of § 636(e) fail to provide any definitive guidance for our attempt to delineate the scope of the district court’s review of the magistrate’s factual findings. A potentially useful source of direction, however, is that of bankruptcy law for, prior to the enactment of the Bankruptcy Reform Act in 1978, bankruptcy referees possessed contempt powers similar to those currently exercised by magistrates. In fact, the language of § 636(e) is nearly identical to that of former 11 U.S.C. § 69(b), the section which described the manner in which con-tempts committed before bankruptcy referees should be handled. Section 69(b), in its original form, provided as follows: The referee shall certify the facts to the judge, if any person shall do any of the things forbidden in this section. The judge shall thereupon, in a summary manner, hear the evidence as to the acts complained of, and, if it is such as to warrant him in so doing, punish such person in the same manner and to the same extent as for a contempt committed before the court of bankruptcy, or commit such person upon the same conditions as if the doing of the forbidden act had occurred with reference to the process of, or in the presence of, the court. Congress was clearly aware of the similarity between § 636(e) and § 69 when it enacted § 636, for the Senate Report on § 636 explicitly noted that" }, { "docid": "8396855", "title": "", "text": "was not required to hold a new hearing. A requirement of a new hearing would obviously defeat the purpose of the reference to a magistrate. That purpose would also be defeated by de novo consideration of a magistrate’s actions under section 636(c). Deference to a magistrate with respect to fact-finding thus does not seem to implicate questions of judicial independence because the reviewing court— whether a district court or a court of appeals — would, of course, give any determinations of law full independent consideration. Thus, entry of final judgment by a magistrate is not of constitutional significance if the result is deference only to fact-finding and with full review of legal questions in the Article III courts. Despite our view of the authority to enter final judgment as having technical significance only, perhaps some clear line of demarcation between the power of an Article III judicial officer and a magistrate is required. Such a line of distinction may be found in the allocation of the contempt power, because, under no aspect of the Magistrate Act, can a magistrate punish for contempt. 28 U.S.C. § 636(e). According to section 636(e), if an individual commits an act constituting contempt of court, the magistrate must certify the facts of the incident to a district judge. The judge, after holding a hearing and evaluating the allegedly contemptuous conduct, may determine the nature and severity of appropriate punishment, if indicated. Unlike the relatively mechanical entry of judgment, the power to punish for contempt of court is the means by which many court judgments, not including the collection of money judgments, are enforced. Despite the effort of the dissent to trivialize the significance of the contempt power, it remains the primary means of enforcing many court judgments, particularly injunctions. The vesting of this power exclusively in the hands of Article III judicial officers would seem, for present purposes at least, to provide an adequate distinction between such judges and non-Article III officers. This clear line also serves to limit the ultimate exercise of judicial power to persons enjoying the constitutional guarantee of independence. The dissent" }, { "docid": "8962080", "title": "", "text": "above cases, however, we are reluctant to premise our conclusion on the basis of the holdings reached in them. Accordingly, we must turn to other sources in our attempt to determine the nature of the hearing required by § 636(e) in the circumstances presented by the instant case. As in all statutory interpretations, the primary source of guidance for our inquiry is the language of the statute itself. There are at least two conclusions that might tentatively be drawn from the language of § 636(e). First, the use of the phrase “shall ... hear the evidence” would, by its literal language, appear to mandate that the district judge is required to hear evidence. Second, the phrase “in a summary manner” seems to indicate that this hearing need not be de novo. The statutory language does not, however, provide support for any inferences beyond those just stated. The legislative history is not any more helpful in our quest to flesh out the character of the hearing contemplated by § 636(e). The House Report stated only that “[pjroposed 28 U.S.C. 636(d) [subsection (d) was redesignated as subsection (e) in 1979, see Federal Magistrate Act of 1979, § 2(1), Pub.L. No. 96-82, 93 Stat. 643 (1979) ] provides that specified acts or conduct before a magistrate shall constitute contempt of the U.S. district court of the district in which the magistrate is sitting.” H.R.Rep. No. 1629, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Ad. News 4252, 4262. The Senate Report, although it discusses § 636(e) at greater length, also does not describe in any detail the nature of the hearing required under that subsection. It therefore appears that the case law, the statutory language, and the legislative history of § 636(e) fail to provide any definitive guidance for our attempt to delineate the scope of the district court’s review of the magistrate’s factual findings. A potentially useful source of direction, however, is that of bankruptcy law for, prior to the enactment of the Bankruptcy Reform Act in 1978, bankruptcy referees possessed contempt powers similar to those currently exercised by magistrates." }, { "docid": "12081954", "title": "", "text": "Appellants next direct attention to provisions of § 636 that allow magistrates to conduct misdemeanor trials, 28 U.S.C. § 636(a)(3) (1982), and jury or nonjury civil trials, id. § 636(c) (1982 & Supp. Ill 1985), conditioned in each case upon the consent of the parties. As a matter of consistent statutory interpretation, they argue, it cannot have been Congress’ objective to allow magistrate selection of juries in felony cases without consent of the parties. Yet conditioning the holding of an entire trial before a magistrate on consent is not conclusive in the context of the separate and distinct function of jury selection. Moreover, the legislative history states in so many words that Congress considered the “additional duties” provision to be broad in scope and unrestricted by “any other specific grant of authority to magistrates.” Hence, we reject appellants’ textual arguments. We conclude that jury selection delegation to a magistrate is within the scope of § 636(b)(3) and consistent with the Federal Magistrates Act. We are mindful of the familiar canon of construction that requires statutes to be construed so as to avoid constitutional questions. E.g., Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 106 S.Ct. 3245, 3252, 92 L.Ed.2d 675 (1986). Nonetheless, “this canon of construction does not give a court the prerogative to ignore the legislative will in order to avoid constitutional adjudication.” Id. Here, the legislative will is evident. As the Seventh Circuit stated, “The only limitations on section 636(b)(3) are that the duties be consistent with the Constitution and federal laws and that they not be specifically excluded by section 636(b)(1).” In re Establishment Inspection of Gilbert & Bennett Mfg. Co., 589 F.2d 1335, 1340-41 (7th Cir.), cert. denied, 444 U.S. 884, 100 S.Ct. 174, 62 L.Ed.2d 113 (1979); see also Ford, 824 F.2d at 1441-42 (Rubin, J., dissenting) (only limit on § 686(b)(3) is Constitution or conflicting law). B. Constitutional Concerns The remaining question is whether Article III of the United States Constitution precludes a magistrate from presiding over jury selection in a felony case without the defendant’s consent. Article III, § 1 of the" }, { "docid": "18844042", "title": "", "text": "appropriate for [non-Article III] resolution with limited involvement by the Article III judiciary.' ” Id. 109 S.Ct. at 2797 (quoting Thomas, 105 S.Ct. at 3343 (Brennan, J., concurring in judgment)). . Our concerns over the constitutionality of bankruptcy courts exercising criminal contempt powers also leads us to doubt that criminal contempt powers are inherent in bankruptcy courts. The two propositions are logically exclusive: it could hardly be unconstitutional for a tribunal to exercise its inherent powers; conversely, to the extent that the inherent power of criminal contempt emanates from Article III, it may well be an essential attribute of judicial power that cannot be vested in a non-Article III entity without endangering our federal structure of separate and independent branches of government. For example, in affirming the constitutionality of the Federal Magistrates Act, several circuit courts have found it persuasive that contempt powers were not granted to magistrates: \"[A] clear line of demarcation between the power of an Article III judicial officer and a magistrate ... may be found in the allocation of the contempt power, because, under no aspect of the Magistrate Act, can a magistrate punish for contempt. 28 U.S.C. § 636(e). According to section 636(e), if an individual commits an act constituting contempt of court, the magistrate must certify the facts of the incident to a district judge. The judge, after holding a hearing and evaluating the allegedly contemptuous conduct, may determine the nature and severity of appropriate punishment, if indicated. Unlike the relatively .mechanical entry of judgment, the power to punish for contempt of court is the means by which many court judgments, not including the collection of money judgments, are enforced. ... The vesting of this power exclusively in the hands of Article III judicial officers would seem, for present purposes at least, to provide an adequate distinction between such judges and non-Article III officers. This clear line also serves to limit the ultimate exercise of judicial power to persons enjoying the constitutional guarantee of independence.\" Geras v. Lafayette Display Fixtures, Inc., 742 F.2d 1037, 1044 (7th Cir.1984). See also Collins v. Foreman, 729 F.2d" }, { "docid": "8962077", "title": "", "text": "to the plain language of that section, which explicitly states that the district judge shall hear the evidence regarding the act in question. We find instead that Congress, in enacting § 636(e), intended to create a distinct procedure, apart from that normally applicable to proceedings under either § 636(b) or § 636(c). In particular, we must interpret § 636(e)’s direction that, after the magistrate has certified the facts to the district court, the district judge “shall thereupon, in a summary manner, hear the evidence as to the act or conduct complained of.” It appears that no case has thus far explicitly addressed the issue of the type of hearing required by § 636(e) in a civil contempt proceeding. Further, those cases which discuss § 636(e) have apparently found it unnecessary to engage in any in-depth analysis of that section, at least in the context of the immediate issue. In Geras v. Lafayette Display Fixtures, Inc., 742 F.2d 1037 (7th Cir.1984), the Seventh Circuit, in upholding the constitutionality of § 636(c), briefly discussed § 636(e). The Seventh Circuit stated: “According to section 636(e), if an individual commits an act constituting contempt of court, the magistrate must certify the facts of the incident to a district judge. The judge, after holding a hearing and evaluating the allegedly contemptuous conduct, may determine the nature and severity of appropriate punishment, if indicated.” Id. at 1044. This discussion, however, is not particularly instructive, for it is essentially nothing more than a paraphrase of the language of § 636(e) and does not specify the nature of the hearing required by that section. There have been previous cases involving contempt proceedings under § 636(e). In three of these cases — United States v. McCargo, 783 F.2d 507 (5th Cir.1986); In re Kirk, 641 F.2d 684 (9th Cir.1981); and Lindsey v. Jackson, 87 F.R.D. 405 (N.D.Miss.1980) — the alleged contemnor was allowed to testify before the district judge. In two other cases — Marshall v. Chromalloy American Corporation, Federal Malleable Division, 433 F.Supp. 330 (E.D.Wis.1977), aff'd, 589 F.2d 1335 (7th Cir.), cert. denied, 444 U.S. 884, 100 S.Ct." }, { "docid": "8396856", "title": "", "text": "Act, can a magistrate punish for contempt. 28 U.S.C. § 636(e). According to section 636(e), if an individual commits an act constituting contempt of court, the magistrate must certify the facts of the incident to a district judge. The judge, after holding a hearing and evaluating the allegedly contemptuous conduct, may determine the nature and severity of appropriate punishment, if indicated. Unlike the relatively mechanical entry of judgment, the power to punish for contempt of court is the means by which many court judgments, not including the collection of money judgments, are enforced. Despite the effort of the dissent to trivialize the significance of the contempt power, it remains the primary means of enforcing many court judgments, particularly injunctions. The vesting of this power exclusively in the hands of Article III judicial officers would seem, for present purposes at least, to provide an adequate distinction between such judges and non-Article III officers. This clear line also serves to limit the ultimate exercise of judicial power to persons enjoying the constitutional guarantee of independence. The dissent raises a number of serious arguments which we must consider carefully since the independence and integrity of the federal judiciary is too important a matter to be sacrificed to pride of opinion. As the dissent itself concedes, however, many of its arguments are quite speculative. It seems to assume that the 4% of federal trials now conducted by magistrates may grow to 40% in a process that will eventually drown the federal courts. This need not be the case; in fact the dangers are so clear and so fearsome that they are likely to be avoided. As we have said, a radical shift to trial by magistrate could easily result in a finding of unconstitutionality on the new facts. Under all the circumstances, this is not a situation where some experimentation with traditional Article III arrangements is necessarily some sort of faustian bargain. In any event, it is ironic that, to avoid recourse to such expedients as the trial of some diversity cases by magistrates, the dissent would consider the abolition of federal diversity jurisdiction" }, { "docid": "17692682", "title": "", "text": "judges themselves.” [S.Rep. No. 371, 90th Cong., 1st Sess., 8, 12 (1967).] In enacting this section and in expanding the criminal jurisdiction conferred upon magistrates, Congress hoped by “increasing the scope of the responsibilities that can be discharged by that office, ... to establish a system capable of increasing the overall efficiency of the Federal judiciary....” Id. at 11. Mathews v. Weber, 423 U.S. at 267-68, 96 S.Ct. at 552-53 (citation omitted); see also United States v. Saunders, 641 F.2d 659, 663 (9th Cir.1980) (Supreme Court has allowed magistrates to perform even “inherently judicial” tasks when under supervision of an Article III judge), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981); In re Establishment Inspection of Gilbert & Bennett Manufacturing Co., 589 F.2d 1335, 1340-41 (7th Cir.) (footnote omitted) (“The only limitations on section 636(b)(3) are that the duties be consistent with the Constitution and federal laws and that they not be specifically excluded by section 636(b)(1).”), cert. denied, 444 U.S. 884, 100 S.Ct. 174, 62 L.Ed.2d 113 (1979); United States v. Boswell, 565 F.2d 1338, 1341-42 (5th Cir.) (because of judge’s illness, magistrate presided during four hours of closing argument; reversal of conviction not warranted), cert. denied, 439 U.S. 819, 99 S.Ct. 81, 58 L.Ed.2d 110 (1978). Presiding at the selection of a jury is a recognized “additional duty” of a magistrate. The Legal Manual for United States Magistrates lists as an “additional duty” the “[c]onduct of voir dire and selection of juries for district judges.” Administrative Office of the United States Courts, Legal Manual for United States Magistrates, § 3.10(3). Further, the United States District Court for the District of Puerto Rico has a local court rule which provides: “The magistrates are also authorized to: ... [c]onduct voir dire and select petit juries in civil and criminal cases for the Court.” D.P.R.R. 13.6N. This use of magistrates has also met with judicial approval. See Haith v. United States, 231 F.Supp. 495, 497-99 (E.D.Pa.1964) (neither Fed.R. Crim.P. 24(a) nor due process require presence of trial judge during jury selection; only lawyers present), aff’d per curiam," }, { "docid": "2999107", "title": "", "text": "judge of the district court.”); see also United States v. Ritte, 558 F.2d 926, 927 (9th Cir.1977) (per curiam) (“contemptuous acts ... related to proceedings before a magistrate must be referred to a district judge for adjudication.”); In re Kitterman, 696 F.Supp. 1866, 1368-69 (D.Nev.1988). The restriction is not unwise. The power to hold persons in criminal contempt is not only awesome, but is also an inherent power of Article III judges. Sequoia Auto Brokers, 827 F.2d at 1284. In fact, when upholding the constitutionality of the magistrate judge system itself, we noted that one of the ways that Article III court authority was preserved was found in the provision that “[d]is-triet courts retain the power to adjudge a party in contempt.” Pacemaker Diagnostic Clinic of Am., Inc. v. Instromedix, Inc., 725 F.2d 537, 545 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 100, 83 L.Ed.2d 45 (1984). Similarly, when we upheld the power of a magistrate judge to impose discovery sanctions, we also opined that § 636(e), “which governs the jurisdiction and powers of magistrates, requires a magistrate to refer contempt charges to a district court judge.” Grimes v. City & County of San Francisco, 951 F.2d 236, 240 (9th Cir.1991). Other circuits have reached the same conclusion. See Taberer v. Armstrong World Indus., Inc., 954 F.2d 888, 907 (3d Cir.1992) (magistrate judges cannot try contempts in proceedings before them); Geras v. Lafayette Display Fixtures, Inc., 742 F.2d 1037, 1044 (7th Cir.1984) (one support for the constitutionality of the magistrate judge system is the vesting of the contempt power in district judges); Collins v. Foreman, 729 F.2d 108, 117 (2d Cir.) (even in § 636(c) references the contempt power remains with the district judge), cert. denied, 469 U.S. 870, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984); cf. Proctor v. State Government of North Carolina, 830 F.2d 514, 517 (4th Cir.1987) (contempt proceedings must be certified to district judge for decision). It is no accident that our emphasis, and that of other circuits, has been on the contempt provision as a guarantee that Article III courts will" }, { "docid": "8962090", "title": "", "text": "conduct, impose sanctions against the noncomplying party. Accordingly, we conclude that the district court was in error when it ruled that it was precluded from receiving evidence and that its primary duty was to determine “whether the act complained of, on the facts as found by the magistrate [were] such as to ‘warrant punishment’ and, if so, ‘punish such person’.” We therefore vacate the district court’s order holding Dorman in contempt, and remand the case to the district court for proceedings consistent with this opinion. VACATED AND REMANDED. . Because this appeal involves only civil contempt, we express no view as to the procedure applicable to criminal contempt. . Section 636(b) requires that the district judge make a \"de novo determination” as to those findings of the magistrate to which objection is made. The Supreme Court has ruled that a \"de novo determination\" is not necessarily the same as a de novo hearing and that the decision to rehear testimony is within the sole discretion of the district judge, even as to those findings based on the magistrate’s judgment as to the credibility of the witnesses before him. United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). . The pertinent portion of the Senate Report reads as follows: Proposed 28 U.S.C. 636(d) [subsection (d) was redesignated as subsection (e) in 1979, see supra ] provides that specified acts or conduct before a magistrate shall constitute contempt of the U.S. District Court for the district in which the magistrate is sitting. S. 3475, the predecessor of S. 945, listed the same acts specified as contemptuous in S. 945, but would have permitted the U.S. magistrate himself to punish such acts when committed in his presence as contempts of court. The Committee on the Administration of Criminal Law of the Judicial Conference of the United States expressed \"serious doubts about the present provisions of section 636 (d) [of S. 3475] as presently worded which would give a full-time or part-time magistrate the power to try and punish contempts.” The committee recommended a substantial change in the language" }, { "docid": "17692681", "title": "", "text": "reference to a magistrate of all actions to review administrative determinations regarding the entitlement to Social Security benefits. The court relied heavily upon the legislative history, stating: “The Magistrate[s] Act specifies these three areas because they came up in our hearings and we thought they were areas in which the district courts might be able to benefit from the magistrate’s services. We did not limit the courts to the areas mentioned. Nor did we require that they use magistrates for additional functions at all. “We hope and think that innovative, imaginative judges who want to clean up their caseload backlog will utilize the U.S. magistrates in these areas and perhaps even come up with new areas to increase the efficiency of their courts.” Hearings on the Federal Magistrates Act before Subcommittee No. 4 of the House Committee on the Judiciary, 90th Cong., 2d Sess., 81 (1968). Section 636(b) was included to “permit ... the U.S. district courts to assign magistrates, as officers of the courts, a variety of functions ... presently performable only by the judges themselves.” [S.Rep. No. 371, 90th Cong., 1st Sess., 8, 12 (1967).] In enacting this section and in expanding the criminal jurisdiction conferred upon magistrates, Congress hoped by “increasing the scope of the responsibilities that can be discharged by that office, ... to establish a system capable of increasing the overall efficiency of the Federal judiciary....” Id. at 11. Mathews v. Weber, 423 U.S. at 267-68, 96 S.Ct. at 552-53 (citation omitted); see also United States v. Saunders, 641 F.2d 659, 663 (9th Cir.1980) (Supreme Court has allowed magistrates to perform even “inherently judicial” tasks when under supervision of an Article III judge), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981); In re Establishment Inspection of Gilbert & Bennett Manufacturing Co., 589 F.2d 1335, 1340-41 (7th Cir.) (footnote omitted) (“The only limitations on section 636(b)(3) are that the duties be consistent with the Constitution and federal laws and that they not be specifically excluded by section 636(b)(1).”), cert. denied, 444 U.S. 884, 100 S.Ct. 174, 62 L.Ed.2d 113 (1979); United States" } ]

[ { "docid": "5564062", "title": "", "text": "Rule to this case is just and practicable. See In re Kaypro, 218 F.3d at 1077; Schroeder v. McDonald, 55 F.3d 454, 459-60 (9th Cir. 1995). Here, however, there is no need to consider the application of Rule 58 as amended to this case. Under Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004), time constraints contained in the bankruptcy rules are claim-processing rules and do not affect federal subject matter jurisdiction. In Kontrick, a creditor failed to object to the debtor’s discharge within the sixty-day time limit set by Federal Rule of Bankruptcy Procedure 4004. Id. at 456-57, 124 S.Ct. 906. Rule 9006 allows extension of the Rule 4004 time limit only to the extent permitted by Rule 4004. When the creditor in Kontrick did raise an objection, the debtor responded by addressing the merits of the objection, and did not raise the timeliness issue until later. Id. at 449, 451, 124 S.Ct. 906. The Court held that the rule limiting the time for filing an objection was a claim-processing rule that did not implicate subject matter jurisdiction and that the debtor’s failure to timely assert it resulted in a forfeiture under the rule. Id. at 456-59, 124 S.Ct. 906. Rule 59 is as much a claim-processing rule as the rule at issue in Kontrick. See also Eberhart v. United States, — U.S. -, -, 126 S.Ct. 403, 407,163 L.Ed.2d 14 (2005) (holding that the time limit to move for a new trial under Federal Rule of Criminal Pro cedure 33(b)(2) is claim-processing rule forfeited by government’s failure to timely raise it); Brickwood Contractors, Inc. v. Datanet Eng’g, Inc., 369 F.3d 385, 396 (4th Cir.2004) (en banc) (finding that Rule ll’s safe harbor provisions are claim-processing rules that are forfeited if not timely raised). As neither the amendment to Rule 58, nor any timeliness challenge to the motion for reconsideration was raised by the Landlord in its briefs, we consider the timeliness issue forfeited. II. REJECTION OF THE LEASE The Landlord contends that the Trustee’s rejection of the lease eliminated any rights of the Trustee" } ]

[ { "docid": "22780725", "title": "", "text": "States, 546 U.S. 12, 126 S.Ct. 403, 406-07, 163 L.Ed.2d 14 (2005) (per curiam) (holding that rules setting forth time limits for a defendant's motion for a new trial grounded on a reason other than newly discovered evidence are not jurisdictional but, instead, are non-jurisdictional claim-processing rules); Kontrick v. Ryan, 540 U.S. 443, 455-56, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) (distinguishing between rules that are jurisdictional and rules that are merely inflexible claim-processing rules); see also United States v. Leijano-Cruz, 473 F.3d 571, 573-74 (5th Cir.2006) (recognizing that Eberhart and Kontrick suggest that Rule 4(b) is not jurisdictional, but declining to resolve the issue). . - U.S. -, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). . Id. at 2364, 2366. . Id. at 2364-66. . Id. at 2364 (quoting Kontrick, 540 U.S. at 452, 124 S.Ct. 906) (first alteration in original and quotations omitted). . Id. at 2365. . Id. (citing 28 U.S.C. § 2101(c)). . Id. (\"We have treated the rule-based time limit for criminal cases differently, stating that it may be waived ....”). . See United States v. Sadler, 480 F.3d 932, 941-42 (9th Cir.2007) (concluding that the time limitation in Rule 4(b)(1)(A) is not jurisdictional based on the rationale in Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005)); see also Ketchum v. Gulf Oil Corp., 798 F.2d 159, 162 (5th Cir.1986) (\"The holding of a panel of this court must comport with prior panel decisions, until changed by this court acting en banc, or unless the Supreme Court either clearly holds or teaches to the contrary.\"). . See United States v. Villegas, 404 F.3d 355, 358 (5th Cir.2005); see also United States v. Seals, 207 Fed.Appx. 489, 490 (5th Cir.2006) (addressing a similar argument and rejecting the defendant’s argument that the issue on appeal was subject to de novo review), cert. denied, - U.S. -, 127 S.Ct. 1894, 167 L.Ed.2d 377 (2007). . 18 U.S.C. § 3583(e)(3) (1988). . See, e.g., United States v. Holmes, 954 F.2d 270, 272 (5th Cir.1992), abrogated by Johnson v. United States, 529 U.S. 694," }, { "docid": "22170436", "title": "", "text": "urged the court to grant it) have each forfeited any right to contend that Rule 48 could not be used in this context. Recently, the Supreme Court has “undertaken to clarify the distinction between claims-processing rules and jurisdictional rules.” Bowles v. Russell, 551 U.S. 205, 210, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). Indeed, the Court has taken the lower courts and litigants to task for loosely using the “jurisdictional” label, which is properly limited to “prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.” Kontrick, 540 U.S. at 455, 124 S.Ct. 906 (internal quotation marks omitted). By contrast, claim-processing rules—such as court-prescribed rules of practice and procedure—“merely prescribe the method by which the jurisdiction granted the courts by Congress is to be exercised.” United States v. Hartwell, 448 F.3d 707, 717 (4th Cir.2006) (internal quotation marks omitted). Maintaining the distinction between jurisdictional rules and claim-processing rules is critical. Jurisdictional restrictions provide absolute limits on a court’s power to hear and dispose of a case, and such limits can never be waived or forfeited. See Kontrick, 540 U.S. at 456, 124 S.Ct. 906. Claim-processing rules, by contrast, are to be rigidly applied when invoked by a litigant, but can be forfeited if not raised and pursued in a timely fashion. See id. It is also important that, in order to be jurisdictional, a rule must be predicated on a valid statute. See Bowles, 551 U.S. at 212, 127 S.Ct. 2360 (“Congress decides what cases the federal courts have jurisdiction to consider.”); Kontrick, 540 U.S. at 452, 124 S.Ct. 906 (“Only Congress may determine a lower federal court’s subject-matter jurisdiction.”). Court-prescribed rules governing practice and procedure, however, “do not create or withdraw federal jurisdiction.” Kontrick, 540 U.S. at 453, 124 S.Ct. 906 (internal quotation marks omitted); see also Bowles, 551 U.S. at 210-13, 127 S.Ct. 2360; Eberhart, 546 U.S. at 15-16, 126 S.Ct. 403. Thus, a court-prescribed rule of practice and procedure will only be deemed jurisdictional if it is statutorily mandated. See Bowles, 551 U.S. at 210-12, 127 S.Ct. 2360." }, { "docid": "22359248", "title": "", "text": "amendment to a timely new trial motion if it is filed” out of time. United States v. Eberhart, 388 F.3d 1043, 1049 (7th Cir.2004), rev’d 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005). In reversing, the Supreme Court analogized the time deadlines in the court-prescribed Federal Rules of Criminal Procedure to the Bankruptcy Rules, which the Kontrick Court held “are not jurisdictional, but are instead claim-processing rules, that may be unalterable on a party’s application, but can nonetheless be forfeited if the party asserting the rule waits too long to raise the point.” Eberhart, 546 U.S. at 15, 126 S.Ct. 403 (quotations and citations omitted). Acknowledging, as the Kontrick Court had, that prior cases like Robinson had characterized court-prescribed time deadlines as “mandatory and jurisdictional,” the Eberhart Court again lamented the “imprecision” of the earlier use of the term “jurisdictional” to describe time prescriptions that, however inflexible and unalterable, nevertheless do not affect the subject-matter jurisdiction of lower federal courts. Id. at 18, 126 S.Ct. 403. Thus, the Court explained, “[t]he net effect of Robinson, viewed through the clarifying lens of Kontrick, is to admonish the Government that failure to object to untimely submissions entails forfeiture of the objection.” Id. Most recently, the jurisdictional nature of statutory time constraints was reaffirmed in Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 2366, 168 L.Ed.2d 96 (2007). Boivles concerned a civil litigant’s failure to file an appeal within the 14 days allowed under Federal Rule of Appellate Procedure 4(a)(6) when the time for appeal has been reopened. The district court judge had issued an order reopening the time for appeal for 17 days. Bowles’s appeal was timely filed under the order, but not under Rule 4(a)(6). Dismissing the appeal, the Supreme Court observed that the deadline in Rule 4(a)(6) was underpinned by an identical deadline set forth in 28 U.S.C. § 2107(c). Id. The Court reasoned that, “[although several of our recent decisions have undertaken to clarify the distinction between claims-processing rules and jurisdictional rules, none of them calls into question our longstanding treatment of statutory time limits for" }, { "docid": "22808562", "title": "", "text": "the exercise of appellate jurisdiction. See United States v. Machado, 465 F.8d 1301, 1305 (11th Cir.2006). We stated, “Filing a timely notice of appeal is ‘mandatory and jurisdictional’ and if a defendant fails to do so, a court of appeals is ‘without jurisdiction to review the decision on the merits.’ ” Id. (quoting Budinich v. Becton Dickinson & Co., 486 U.S. 196, 208, 108 S.Ct. 1717, 1722, 100 L.Ed.2d 178 (1988)). We remain bound by the rule of our prior precedent “unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir.2008). The Supreme Court explained in Bowles that filing deadlines or time limits are jurisdictional only when Congress establishes them, because “[wjithin constitutional bounds, Congress decides what cases the federal courts have jurisdiction to consider.” 551 U.S. 205, 127 S.Ct. at 2365. Based on that reasoning, the Court held that the deadline in Rule 4(a) for filing a notice of appeal in a civil case is mandatory and jurisdictional because it is grounded in a federal statute, 28 U.S.C. § 2107. Bowles, 551 U.S. 205, 127 S.Ct. at 2363-66. Bowles is the first decision of the Supreme Court to consider whether the deadlines for filing an appeal under Rule 4 are jurisdictional, but Bowles is the third recent decision of the Court that has distinguished rules of limitation that implement a statutory directive from time limitations in court-adopted rules of procedure. See also Eberhart v. United States, 546 U.S. 12, 15-19, 126 S.Ct. 403, 404-07, 163 L.Ed.2d 14 (2005) (per curiam) (Federal Rule of Criminal Procedure 33, which imposes a time limit for filing a post-conviction motion for a new trial, is a nonjurisdictional rule for processing claims and an objection of untimeliness may be forfeited.); Kontrick v. Ryan, 540 U.S. 443, 452-56, 124 S.Ct. 906, 914-16, 157 L.Ed.2d 867 (2004) (Because the deadline in Federal Rule of Bankruptcy Procedure 4004 for objecting to a discharge of debt is not grounded in a federal statute, its" }, { "docid": "19540206", "title": "", "text": "opposing party raises the issue. By definition, mandatory claim-processing rules, although subject to forfeiture, are not subject to harmless-error analysis. Petitioner in this case did not file a defective notice of appeal from the amended judgment imposing restitution, but rather failed altogether to file a notice of appeal from the amended judgment. Courts do not have discretion to overlook such an error, at least where it is called to their attention. * * * We hold that a defendant who wishes to appeal an order imposing restitution in a deferred restitution case must file a notice of appeal from that order. Because petitioner failed to do so, and the Government objected, the Court of Appeals properly declined to consider his challenge to the amount of restitution imposed. The judgment of the Court of Appeals, accordingly, is affirmed. It is so ordered. Justice GORSUCH took no part in the consideration or decision of this case. Justice GINSBURG, with whom Justice SOTOMAYOR joins, dissenting. Time limits, such as those stated in Federal Rules of Appellate Procedure 3 and 4, and other limitations prescribed in a procedural rule, this Court has held, are claim-processing rules, not jurisdictional requirements. See, e.g., Eberhart v. United States, 546 U.S. 12, 15-19, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam ); Kontrick v. Ryan, 540 U.S. 443, 448, 452-456, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). That matter is settled, and the Court, today, leaves undisturbed prior opinions distinguishing claim-processing rules from jurisdictional orders. See, e.g., Gonzalez v. Thaler, 565 U.S. 134, 141-143, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012) ; Henderson v. Shinseki, 562 U.S. 428, 435-436, 441-442, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) ; Scarborough v. Principi, 541 U.S. 401, 413-414, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004) ; cf. Bowles v. Russell, 551 U.S. 205, 209-213, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (distinguishing statutory prescriptions from procedural rules). As I see it, a defendant wishing to appeal his sentence and conviction when a restitution determination has been deferred has two choices: (1) He may immediately appeal his conviction and sentence of" }, { "docid": "7414345", "title": "", "text": "time he has to file a claim, Kontrick v. Ryan, 540 U.S. 443, 456, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004), or to “protect a defendant’s case-specific interest in timeliness,” John R. Sand, 552 U.S. at 133, 128 S.Ct. 750, but it “does not reduce the adjudicatory domain of [the] tribunal,” Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs & Trainmen Gen. Comm, of Adjustment, Cent. Region (Union Pacific), —- U.S.-, 130 S.Ct. 584, 596, 175 L.Ed.2d 428 (2009). See also Dolan v. United States, — U.S. -, 130 S.Ct. 2533, 2538, 177 L.Ed.2d 108 (2010) (noting that a claim-processing rule “do[es] not limit a [tribunal’s] jurisdiction, but rather regulate[s] the timing of motions or claims”). The different treatment of claim-processing rules and jurisdictional requirements has significant effects on the scope of authority held by adjudicatory tribunals. Claim-processing rules “typically permit [tribunals] to toll the limitations period in light of special equitable considerations,” John R. Sand, 552 U.S. at 133, 128 S.Ct. 750, and their protection can be “forfeited if the party asserting the rule waits too long to raise the point.” Kontrick, 540 U.S. at 456, 124 S.Ct. 906; see, e.g., Eberhart v. United States, 546 U.S. 12, 19, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam); Wilburn v. Robinson, 480 F.3d 1140, 1144-46 (D.C.Cir.2007). But a tribunal “has no authority to create equitable exceptions to jurisdictional requirements,” Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), and litigants cannot by waiver or forfeiture confer jurisdiction where it is otherwise lacking, see United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); S. Cal. Edison Co. v. FERC, 603 F.3d 996, 1000 (D.C.Cir.2010). Whether a statutory time limit or other prerequisite to suit is jurisdictional is “discerned by looking to the condition’s text, context, and relevant historical treatment.” Reed Elsevier, Inc. v. Muchnick, - U.S. -, 130 S.Ct. 1237, 1246, 176 L.Ed.2d 17 (2010). We begin by considering whether Congress “clearly statefd]” the limitation should “rank ... as jurisdictional.” Arbaugh v.Y & H Corp., 546 U.S. 500," }, { "docid": "22808563", "title": "", "text": "in a civil case is mandatory and jurisdictional because it is grounded in a federal statute, 28 U.S.C. § 2107. Bowles, 551 U.S. 205, 127 S.Ct. at 2363-66. Bowles is the first decision of the Supreme Court to consider whether the deadlines for filing an appeal under Rule 4 are jurisdictional, but Bowles is the third recent decision of the Court that has distinguished rules of limitation that implement a statutory directive from time limitations in court-adopted rules of procedure. See also Eberhart v. United States, 546 U.S. 12, 15-19, 126 S.Ct. 403, 404-07, 163 L.Ed.2d 14 (2005) (per curiam) (Federal Rule of Criminal Procedure 33, which imposes a time limit for filing a post-conviction motion for a new trial, is a nonjurisdictional rule for processing claims and an objection of untimeliness may be forfeited.); Kontrick v. Ryan, 540 U.S. 443, 452-56, 124 S.Ct. 906, 914-16, 157 L.Ed.2d 867 (2004) (Because the deadline in Federal Rule of Bankruptcy Procedure 4004 for objecting to a discharge of debt is not grounded in a federal statute, its deadline is a nonjurisdictional rule for processing claims and an objection of untimeliness may be forfeited.). The Supreme Court has made clear that only rules of limitation that implement a statutory directive may be mandatory and jurisdictional. Bowles, 551 U.S. 205, 127 S.Ct. at 2363-65. Time limitations in court-adopted rules of procedure are not jurisdictional; those deadlines provide rules for processing claims that “assure relief to a party properly raising them, but do not compel the same result if the party forfeits them.” Eberhart, 546 U.S. at 19, 126 S.Ct. at 407. In Bowles, the Supreme Court distinguished, for example, its deadline of 90 days for filing a petition for a writ of certiorari in a civil case, S.Ct. R. 13.1, which is grounded in a statute, 28 U.S.C. § 2101(c), and is, therefore, jurisdictional, from its deadline of 90 days for filing the same kind of petition, under the same rule, in a criminal case, which is not grounded in a statute and is, therefore, not jurisdictional. 551 U.S. 205, 127 S.Ct. at 2365." }, { "docid": "22378616", "title": "", "text": "but rather inflexible claim-processing rules. 127 S.Ct. at 2363-66. This court recently held that, in light of Bowles, Federal Rule of Appellate Procedure 4(b)(1) is a claim-processing rule. United States v. Garduno, 506 F.3d 1287, 1288-89 (10th Cir.2007). As a result, dismissal of Mitchell’s appeal, based on his failure to file a timely notice of appeal, is no longer mandatory and jurisdictional. Nevertheless, the time bar in Rule 4(b) must be enforced by this court when properly invoked by the government. Garduño, 506 F.3d at 1290-91; see Eberhart v. United States, 546 U.S. 12, 19, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (“These claim-processing rules thus assure relief to a party properly raising them.”). In this case the government never objected to the untimeliness of Mitchell’s notice of appeal and, as a result, forfeited its opportunity to ensure enforcement of the rule. Although it acknowledges that after Bowles this court has no obligation to raise the issue of timeliness, the government maintains this court could and should raise and decide the issue sua sponte. We begin this analysis by noting that this area of the law has been in flux since Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004), and Eberhart v. United States, 546 U.S. at 12, 126 S.Ct. 403, first indicated the time limitations in the federal rules may not be jurisdictional under some circumstances. As a result, there is limited case law indicating how the courts should enforce those rules which are no longer jurisdictional. The question of whether a court may sua sponte raise timeliness under Rule 4(b) is one of first impression in this circuit and appears to have only been addressed tangentially in other circuits. See Wilburn v. Robinson, 480 F.3d 1140, 1143-48 (D.C.Cir.2007). A Kontrick and Eberhart do not specifically speak to the issue of whether a court may sua sponte raise timeliness under non-jurisdictional federal rules. They generally indicate, however, that claim-processing rules must be raised by the parties. In Kontrick, which involved the time constraints of Bankruptcy Rule 4004 governing when a party must file a" }, { "docid": "14007005", "title": "", "text": "concern that we lacked authority to decide the appeal in light of party's failure to comply with Rule 4), recent Supreme Court decisions cast doubt on the validity of this view. In Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam), the Supreme Court held that Rule 33 of the Federal Rules of Criminal Procedure was not jurisdictional, but instead is an \"inflexible claim-processing rule.” Id. at 404 (quotation marks omitted). Similarly, in Kontrick v. Ryan, 540 U.S. 443, 456, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004), the Supreme Court held that Rules 4004 and 9006 of the Federal Rules of Bankruptcy Procedure were \"claim-processing rules,” rejecting the argument they were jurisdictional. But cf. Carelock, 459 F.3d at 440 n. 6 (suggesting in dicta, post-Kontrick and Eberhart, that \"the language and commentary of the rules, along with their prior treatment by the Supreme Court and this Court, strongly support the conclusion that Rules 3 and 4 [of the Federal Rules of Appellate Procedure] govern subject-matter jurisdiction”). The Supreme Court's decision last term in Bowles v. Russell, - U.S. -, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), similarly leaves this question open. In Bowles, the Supreme Court determined that the time for filing a notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(6) was jurisdictional and therefore not subject to waiver or judicial modification. Central to this determination was that the limitations in Rule 4(a)(6) \"carrie[d] into practice [28 U.S.C. § 2107(c)],” which itself expressly limited district courts' ability to extend the time for filing a notice of appeal. See id. at 2366 (\"Because Congress specifically limited the amount of time by which district courts can extend the notice-of-appeal period in [§ 2107(c)], that limitation is more than a simple claim-processing rule. As we have long held, when an appeal has not been prosecuted in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction. Bowles' failure to file his notice of appeal in accordance with the statute therefore deprived the Court" }, { "docid": "19999691", "title": "", "text": "F.3d 597, 605 (4th Cir.1999) (collecting cases); see also Nat’l Ecological Found, v. Alexander, 496 F.3d 466, 477 (6th Cir.2007) (“Rule 59(e) motions are aimed at reconsideration, not initial consideration.”) (internal quotation omitted). The district court did not exercise its discretion to excuse Doe’s untimeliness; on the contrary, it declined to consider the issue because Doe “should have raised [it] earlier.” Mem. Op. at 4, District of Columbia v. Doe ex rel. Doe, C.A. No. 04-1451, 2008 WL 5453977 (D.D.C. Dec. 31, 2008). As a result, it is not for us to decide timeliness vel non. But Doe says we must reach his argument because the district court did not have jurisdiction over the District’s untimely complaint. See Bowles v. Russell, 551 U.S. 205, 213, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (“forfeiture or waiver” does not apply where untimeliness precludes jurisdiction). As noted, however, the applicable limitations period was then prescribed by common law, not by statute. See Spiegler, 866 F.2d at 466 (borrowing limitations period from D.C.App. R. 15(a)). The limitations period was not jurisdictional and Doe’s argument thus fails. See Bowles, 551 U.S. at 210-11 & n. 2, 127 S.Ct. 2360 (describing “jurisdictional significance” of limitations period set by statute); Kontrick v. Ryan, 540 U.S. 443, 452, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) (“Only Congress may determine a lower federal court’s subject matter jurisdiction.”); S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1290 n. 1 (9th Cir.2006) (failure to comply with limitations period borrowed from local law is not jurisdictional in IDEA action). C. Merits Because the district court relied entirely on the administrative record, cf. 20 U.S.C. § 1415(i)(2)(B)(ii) (district court “shall hear additional evidence at the request of a party”), we review its grant of summary judgment de novo, applying the same standard it used. See Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 521-22 (D.C.Cir.2005). Under that standard, the IDEA hearing officer’s decision warrants “less deference than is conventional” in administrative proceedings but the District “must at least take on the burden of persuading the court that the" }, { "docid": "19797664", "title": "", "text": "limit was jurisdictional. McGaughy contends this holding has been undercut by subsequent jurisprudential developments, namely, Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam), where the Supreme Court refined the effect of court rules on Article III jurisdiction. Some of our recent cases have acknowledged our precedent’s potential inconsistency with Eberhart. See United States v. McGinty, 610 F.3d 1242, 1245 (10th Cir.2010); United States v. Sterling, 225 Fed.Appx. 748, 751 (10th Cir.2007). In Eberhart, the defendant made an untimely motion for a new trial under Federal Rule of Criminal Procedure 33(a), which included a seven-day time limit from the time of the verdict. Eberhart, 546 U.S. at 13, 126 S.Ct. 403. The government did not object on timeliness grounds but opposed the motion on the merits. Id. at 13-14, 126 S.Ct. 403. On appeal, the government for the first time argued that the district court had no jurisdiction to entertain the motion due to the seven-day time limit, and the court of appeals agreed. Id. at 14, 126 S.Ct. 403. The Supreme Court reversed, holding that Rule 33’s time limit was not a jurisdictional restriction, but merely a non-jurisdictional claim-processing rule that was forfeited if not raised in a timely fashion by an opposing party. Id. at 16,126 S.Ct. 403. In a subsequent case, Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), the Supreme Court further explored the distinction between jurisdictional and non-jurisdictional time limits. Bowles addressed whether the time limit found in Rule 4 of the Federal Rules of Appellate Procedure was jurisdictional. See id. at 208, 127 S.Ct. 2360. Rule 4 authorizes district courts to reopen the time for parties to file an appeal when the parties do not receive timely notice of an entry of judgment. See id. at 208-09, 127 S.Ct. 2360. Rule 4 requires that a motion to reopen be filed “within 180 days after the judgment or order is entered or within 7 days after the moving party received notice of the entry, whichever is earlier.” Id. at 208, 127 S.Ct. 2360." }, { "docid": "19101558", "title": "", "text": "and the government cited Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005), in suggesting that, by neglecting to appreciate the significance of the fact that Combs had not entered a conditional guilty plea, it may have “waived the waiver.” Eberhart is a part of a recent line of cases in which the Supreme Court has distinguished be tween jurisdictional rules and court-created “claim-processing” rules. See, e.g., Dolan v. United States, — U.S. -, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010) (holding that 90-day deadline for sentencing court to set restitution is not jurisdictional); Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (holding that time limit in Federal Rule of Appellate Procedure 4(a) for filing appeals in civil case is jurisdictional); Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) (distinguishing rules governing subject-matter jurisdiction from those that are merely claim-processing rules and holding that certain filing deadlines in Bankruptcy Rules are not jurisdictional). In Eberhart itself the Court held that the 7-day filing deadline applicable to motions for a new trial under Federal Rule of Criminal Procedure 33(a) is a non-jurisdictional claim-processing rule and that the government, by failing to raise the issue of untimeliness, forfeits the defense. Id. at 19, 126 S.Ct. 403. In Combs’s case, the government apparently assumes that the requirements of Rule 11(a)(2) are like those in Rule 33(a). If we agree with this position, then the government has waived its defense that Combs gave up his suppression claim by entering an unconditional guilty plea. Only the Ninth Circuit has explicitly addressed the application of Eberhart to Rule 11(a)(2), and in that en banc decision the court adopted the view suggested here by the government. See United States v. Jacobo Castillo, 496 F.3d 947, 954 (9th Cir.2007) (en banc). The defendant in Jacobo Castillo had appealed his conviction after entering an unconditional guilty plea and sought to raise issues concerning preindictment delay and an unsuccessful motion to suppress. Id. at 950. The government did not assert the absence of a conditional" }, { "docid": "1317274", "title": "", "text": "According to the plaintiff, the district court erred in holding that the time periods set forth in Rule 4 are mandatory and jurisdictional. The plaintiff points to recent Supreme Court decisions indicating that nonextendable time limits, such as those prescribed in Rule 4, “however emphatic, are not properly typed jurisdictional.” Arbaugh v. Y & H Corp., 546 U.S. 500, 510, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (internal quotation marks omitted); see Eberhart v. United States, 546 U.S. 12, 15, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (holding filing deadline for a motion for a new trial under Federal Rule of Criminal Procedure 33 is nonjurisdictional); Scarborough v. Principi, 541 U.S. 401, 413-14, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004) (Equal Access to Justice Act fee application deadline nonjurisdictional); Kontrick v. Ryan, 540 U.S. 443, 454-55, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) (deadline for filing a complaint under Bankruptcy Rule 4004 objecting to a debtor’s discharge non-jurisdictional). As the defendants note, however, none of these decisions concerns Rule 4’s deadlines, which the Supreme Court and this Court consistently have termed mandatory and jurisdictional. See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988) (holding that “the taking of an appeal within the prescribed time is mandatory and jurisdictional”); Feltner v. Lamar Adver. of Tenn., Inc., 200 Fed.Appx. 419, 422 (6th Cir.2006) (“Compliance with Fed. R.App. P. 4(a) is a mandatory and jurisdictional prerequisite which this court can neither waive nor extend.”) (quoting Baker v. Raulie, 879 F.2d 1396, 1398 (6th Cir.1989)); In re Sulzer Orthopedics & Knee Prosthesis Prods. Liab. Litig., 399 F.3d 816, 817 (6th Cir.2005) (quoting Browder v. Dep’t of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978) for the proposition that the thirty-day limit in which to file an appeal is “mandatory and jurisdictional”). Most recently, in Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), affirming a decision by this Court, the Supreme Court held that “[the petitioner’s] failure to file his notice of appeal in accordance with the" }, { "docid": "20413347", "title": "", "text": "79 S.Ct. 760, 3 L.Ed.2d 770 (1959), and Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946)). The Court explained that, in contrast, tolling is generally unavailable when a deadline is missed because of a “garden variety claim of excusable neglect.” Id. at 96. Neither Andrews nor Rodriguez departed from these principles. The Veterans Court enlarged Andrews beyond its premises, in holding that tolling of the one-year term of retroactivity under § 5110(b)(1) is never available. The presumption established by § 5110(b)(1) is not an implementation of a statutory time limit that is “jurisdictional.” See Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (holding that the statutory time limit for filing a notice of appeal from a civil case brought in federal district court is jurisdictional and hence not susceptible to equitable extension); Henderson v. Shinseki, 589 F.3d 1201 (Fed.Cir.2009) (en banc) (extending Bowles holding to apply to the statutory time limit for seeking review of a decision of the Board of Veterans’ Appeals). The presumptive retroactive date achieved by filing a claim within one year after discharge from service does not limit the time in which the veteran can bring a substantive claim for service connection. This presumption does not affect the VA’s ability to adjudicate the claim; it affects only the effective date of compensation if service connection is found. This period is akin to a “nonjurisdictional claim-processing rule,” for it imposes no restriction on a court’s jurisdiction. Such limits are susceptible to waiver and equitable treatment. See, e.g., Eberhart v. United States, 546 U.S. 12, 16, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (time period for a criminal defendant to move for a new trial is a “nonjuris-dictional claim-processing rule”); Kontrick v. Ryan, 540 U.S. 443, 456, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) (time limit for creditors to file objections in bankruptcy proceedings is a “claim-processing rule” and not a restriction on the court’s jurisdiction); see also Reed Elsevier, Inc. v. Muchnick, — U.S.-, 130 S.Ct. 1237, 176 L.Ed.2d 17 (2010) (holding that statutory requirement that, with" }, { "docid": "19101557", "title": "", "text": "defendant did not condition plea agreement on right to appeal pre-plea motions we lacked jurisdiction to review claims); United States v. Elizalde-Adame, 262 F.3d 637, 640 (7th Cir.2001) (concluding that defendant’s plea was “unequivocally unconditional” and thus we lacked “jurisdiction to hear the appeal”); United States v. Cain, 155 F.3d 840, 843 (7th Cir.1998) (noting that, because defendant did not preserve his right to appeal suppression issue, this court did “not have jurisdiction over [that] aspect of his appeal”); but see United States v. Robinson, 20 F.3d 270, 273 (7th Cir.1994) (noting that “[e]ven when a defendant pleads guilty unconditionally ... the court may review nonjurisdictional errors for plain error”). Typically, the jurisdictional bar is asserted by the government in response to a defendant’s attempt to raise pre-plea issues after entering an unconditional plea. Here, however, the government overlooked the absence of a conditional guilty plea and responded to Combs’s brief as if there is no question about our jurisdiction to evaluate his contentions. We raised the jurisdictional question on our own during oral argument, and the government cited Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005), in suggesting that, by neglecting to appreciate the significance of the fact that Combs had not entered a conditional guilty plea, it may have “waived the waiver.” Eberhart is a part of a recent line of cases in which the Supreme Court has distinguished be tween jurisdictional rules and court-created “claim-processing” rules. See, e.g., Dolan v. United States, — U.S. -, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010) (holding that 90-day deadline for sentencing court to set restitution is not jurisdictional); Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (holding that time limit in Federal Rule of Appellate Procedure 4(a) for filing appeals in civil case is jurisdictional); Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) (distinguishing rules governing subject-matter jurisdiction from those that are merely claim-processing rules and holding that certain filing deadlines in Bankruptcy Rules are not jurisdictional). In Eberhart itself the Court held that" }, { "docid": "3575287", "title": "", "text": "‘ WOLLMAN, Circuit Judge. Mario J. Watson pleaded guilty to being a felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and was sentenced to seventy months’ imprisonment. Judgment was entered on April 27, 2009. Months later, the district court received a letter from Watson, wherein he contested his sentence. The letter was docketed as a motion to reduce sentence, and the district court denied relief on October 30, 2009. Within ten days after the denial of his motion, Watson filed a pro se notice of appeal, stating that he was appealing from the April 2009 judgment and the October 2009 order. Watson’s appeal from the judgment of conviction and sentence was filed outside the deadlines set forth in Federal Rule of Appellate Procedure 4(b), a rule we have long considered jurisdictional. Our holding, however, has been called into question by the Supreme Court’s decisions in Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007); Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam); and Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). Accordingly, we appointed counsel to represent Watson and directed the parties to address the following two issues: (1) whether Rule 4(b) is jurisdictional, and (2) if Rule 4(b) is not jurisdictional, whether the government forfeited any objection to the timeliness of the notice of appeal and whether the court may enforce the time limit sua sponte. Thereafter, the government moved to dismiss the appeal, and the parties briefed the issues listed above. We now hold that Federal Rule of Appellate Procedure 4(b) is a nonjurisdictional claim-processing rule. Watson’s notice of appeal from the judgment of conviction and sentence was not timely filed, and the government properly objected by motion and in its merits brief. Accordingly, we dismiss the appeal from the judgment of conviction and sentence. As set forth below, Watson’s timely taken appeal from the order denying his motion to reduce sentence is without merit, and thus we affirm the order of denial. I. Federal" }, { "docid": "18137347", "title": "", "text": "“to the extent [it] purports] to authorize an exception to a jurisdictional rule.” Id. That qualifying dependent clause left open the doctrine’s continued vitality as an exception to a non-jurisdictional rule. Cf. Gutierrez v. Johnson & Johnson, 523 F.3d 187, 198-99 & n. 10 (3d Cir.2008); see also United States v. Garduno, 506 F.3d 1287, 1291-92 & n. 5 (10th Cir.2007); 4B Chaeles Alan Weight & Arthur R. Miller, Federal PRACTICE and Prooedure § 1168 (4th ed.2008); 16A id. § 3950.1. “Only Congress may determine a lower federal court’s subject-matter jurisdiction.” Kontrick v. Ryan, 540 U.S. 443, 452, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). Timing rules are therefore jurisdictional if they implement a statutory time limit, whereas timing rules lacking a statutory basis are “simple ‘claim-processing rule[s]’ ” subject to waiver and forfeiture. Bowles, 551 U.S. at 213, 127 S.Ct. 2360. The timing rules at issue here — Federal Rules of Civil Procedure 6(b)(2) and 59(e) and Federal Rule of Appellate Procedure (“FRAP”) 4(a)(4)(A)(iv) — are claim-processing rules. Obaydullah v. Obama, 688 F.3d 784, 788-91 (D.C.Cir.2012); see also Eberhart v. United States, 546 U.S. 12, 19, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005); Kontrick, 540 U.S. at 454, 124 S.Ct. 906; Wilburn v. Robinson, 480 F.3d 1140, 1146 n. 11 (D.C.Cir.2007); Advanced Bodycare Solutions, LLC v. Thione Int’l, Inc., 615 F.3d 1352, 1359 n. 15 (11th Cir.2010); Lizardo v. United States, 619 F.3d 273, 274 (3d Cir.2010); Dill v. Gen. Am. Life Ins. Co., 525 F.3d 612, 618 (8th Cir.2008); Nat'l Ecological Found. v. Alexander, 496 F.3d 466, 475 (6th Cir.2007); In re Onecast Media, Inc., 439 F.3d 558, 562 (9th Cir.2006). Unique circumstances excuse Mob-ley’s untimely filing of his Rule 59(e) motion. On the same day, Mobley filed two complaints in the district court seeking virtually the same relief under FOIA and the Privacy Act. Except for the federal agencies he sued as defendants, his two complaints were grounded in functionally identical FOIA and Privacy Act requests. The district court’s treatment of the two cases reflects their near-equivalence. Most notably, the district court issued a single memorandum opinion" }, { "docid": "19923905", "title": "", "text": "motions to dismiss provided in section 704(b)(2) is jurisdictional in nature. There are two possibilities: (a) that the time limit for UST motions to dismiss is jurisdictional, such that untimeliness of the UST’s section 707(b)(2) supplement deprived the bankruptcy court of jurisdiction to entertain those grounds for dismissal; or (b) that the time limit is not jurisdictional and the debtors waived their objection to the UST’s late filing by failing to object. The UST claims that any objection to its untimely filing has been waived because section 704(b)(2)’s deadline for UST motions to dismiss is not jurisdictional. Statutory limits, it claims, are only jurisdictional when Congress “clearly states” that they are jurisdictional. The debtors argue for the first time in their Reply Brief that “[i]f the motion under sec. 707(b)(2) were untimely, it resolves the appeal” because “[t]he lack of a timely objection should deprive the court of jurisdiction to entertain the motion to dismiss on that basis.” In Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), the Supreme Court held that the appellate filing deadline set by Fed. R.App. P. 4(a)(1)(A) and 28 U.S.C. § 2107(a) was jurisdictional in nature. The Court distinguished its holding in Bowles from that in Kontrick v. Ryan, 540 U.S. 443, 458-59, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004), where the Court had held that Federal Rule of Bankruptcy Procedure 4004 — which set deadlines for objections to a debtor’s discharge — was not jurisdictional. In contrasting its holdings in Bowles and Kontrick, the Court emphasized that the non-statutory nature of the time limit in Kontrick was essential to the analysis in that case. See Bowles, 127 S.Ct. at 2364. Justice Thomas noted that “those decisions [which have undertaken to clarify the distinction between jurisdictional and non-jurisdictional rules] have ... recognized the jurisdictional significance of the fact that a time limit is set forth in a statute.” Id. This distinction made sense, the Court reasoned, because “Congress decides whether federal courts can hear cases at all, [and thus] it can also determine when, and under what conditions, federal courts" }, { "docid": "6250333", "title": "", "text": "imposes detailed requirements upon the Basin Authority in performing this role. Paragraph 8 also implies that the Agreed Order addresses the State's role in maintaining the WTT Project. Paragraph 8 begins by affirmatively asserting that the State is responsible for maintaining the Corps’ project; it then proceeds to require the State to acquire rights of way as part of its maintenance responsibilities. SUTTON, Circuit Judge, concurring in the judgment. I respectfully see this case differently. Unlike the majority, I find it unnecessary to decide whether Bowles v. Russell, — U.S. -, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005), and Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004), compel us to determine that Rule 59(e) is a claim-processing rule. I instead believe we should adhere to the straightforward practice we have long employed when faced with an untimely Rule 59(e) motion — which is to construe the motion as a timely-filed Rule 60(b) motion. See Feathers v. Chevron U.S.A., Inc., 141 F.3d 264, 268 (6th Cir.1998) (“Where a party’s Rule 59 motion is not filed within the mandatory 10-day period, it is appropriate for a court to consider the motion as a motion pursuant to Rule 60 for relief from judgment.”); see also, e.g., Peake v. First Nat’l Bank & Trust Co. of Marquette, 717 F.2d 1016, 1020 (6th Cir.1983); Lommen v. McIntyre, 125 Fed.Appx. 655, 658-59 (6th Cir.2005); White-Bey v. McMeekin, No. 98-2162, 1999 WL 1045106, at *1 (6th Cir. Nov.10, 1999); Parker v. Wilkinson, No. 98-3611, 1999 WL 435150, at *1 (6th Cir. June 17, 1999); Jobete Music Co., Inc. v. Holland, No. 90-1664, 1991 WL 105750, at *2-3 (6th Cir. June 18, 1991); Beerbower v. United States, No. 85-1034, 1986 WL 16750, at *1 (6th Cir. Mar.14, 1986). If we construe the appellants’ Rule 59(e) motion as a Rule 60(b) motion, we have jurisdiction to hear the appeal from the district court’s denial of that motion. The district court denied the motion on January 6, 2006 and WTRBA and" }, { "docid": "18137346", "title": "", "text": "Rule 59(e) motion. Prior to Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), the unique circumstances doctrine permitted appellate courts to excuse untimeliness\" where a party acted belatedly in reliance on an erroneous district court ruling. See Thompson v. INS, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964); Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962). The doctrine, however, applied “only where a party who could have filed a timely notice of appeal is lulled into missing the deadline by a formal court order or ruling, containing specific assurances that action which extends or postpones the deadline has properly been taken.... ” Moore v. S.C. Labor Bd., 100 F.3d 162, 162 (D.C.Cir.1996); see also Osterneck v. Ernst & Whinney, 489 U.S. 169, 179, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989). In Bowles, 551 U.S. at 214, 127 S.Ct. 2360, the Supreme Court expressly overruled Thompson and Harris Truck Lines and rejected the unique circumstances doctrine, but only “to the extent [it] purports] to authorize an exception to a jurisdictional rule.” Id. That qualifying dependent clause left open the doctrine’s continued vitality as an exception to a non-jurisdictional rule. Cf. Gutierrez v. Johnson & Johnson, 523 F.3d 187, 198-99 & n. 10 (3d Cir.2008); see also United States v. Garduno, 506 F.3d 1287, 1291-92 & n. 5 (10th Cir.2007); 4B Chaeles Alan Weight & Arthur R. Miller, Federal PRACTICE and Prooedure § 1168 (4th ed.2008); 16A id. § 3950.1. “Only Congress may determine a lower federal court’s subject-matter jurisdiction.” Kontrick v. Ryan, 540 U.S. 443, 452, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). Timing rules are therefore jurisdictional if they implement a statutory time limit, whereas timing rules lacking a statutory basis are “simple ‘claim-processing rule[s]’ ” subject to waiver and forfeiture. Bowles, 551 U.S. at 213, 127 S.Ct. 2360. The timing rules at issue here — Federal Rules of Civil Procedure 6(b)(2) and 59(e) and Federal Rule of Appellate Procedure (“FRAP”) 4(a)(4)(A)(iv) — are claim-processing rules. Obaydullah v. Obama, 688 F.3d 784," } ]

[ { "docid": "12058556", "title": "", "text": "or amend a judgment under Fed.R.Civ.P. 59(e), but such power must be exercised within the ten day time limit. Burnam ¶. Amoco Container Co., 738 F.2d 1230, 1232 (11th Cir.1984). Fed.R. Civ.P. 6(b) provides that a court may in its discretion enlarge a time limit “but it may not extend the time for taking any action under [Rule] ... 59(e).” The ten day time limit imposed by Rule 59(e) is therefore jurisdictional and may not be waived by a court. See Sutliff, Inc. v. Donovan Companies, Inc., 727 F.2d 648, 652 (7th Cir. 1984); Textile Banking Co., v. Rentschler, 657 F.2d 844, 849 (7th Cir.1981); Hairline Creations, Inc. v. Kefalas, 664 F.2d 652, 655, 660, 212 USPQ 734, 736, 740 (7th Cir. 1981) (A motion filed twenty-eight days after judgment was found to be untimely.); Scola v. Boat Frances, R., Inc., 618 F.2d 147, 154 (1st Cir.1980). Applying the precedent of the Eleventh Circuit in Bur-nam, 738 F.2d at 1232, a district court has no inherent authority and cannot, sua sponte, modify its judgment outside of the ten day limit. Although it did not timely file a motion under Rule 59(e), Sun-Tek argues that it is entitled to prevail because Kenergy’s timely motions challenged almost the entire Final Judgment and thus opened the entire judgment up to modification or amendment by the district court. It is only the absence of any Rule 59(e) motion which is jurisdictional according to Sun-Tek’s argument. Kenergy’s motions, however, did not challenge the court’s determination in the Final Judgment that the case was not exceptional. Sun-Tek also argues that by retaining “jurisdiction for the entry of appropriate attorney fees consistent with the findings herein,” the district court did, sua sponte, retain jurisdiction to reverse its judgment that the case is not exceptional. In Hidle v. Geneva County Bd. of Educ., 792 F.2d 1098 (11th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1296, 94 L.Ed.2d 152 (1987), the Eleventh Circuit considered whether a party’s motion to alter or amend a judgment pursuant to Fed. R.Civ.P. 59 empowers the district court, in effect, to vacate a" } ]

[ { "docid": "8585314", "title": "", "text": "denied this motion in part, limiting the payments required to $15,000 per month. The Fund appeals from this order. III. APPEALABILITY Pantry Pride contends that the order of the district court was not appealable as either a final decision under 28 U.S.C. § 1291, or as an interlocutory order under 28 U.S.C. § 1292(a)(1). An interlocutory order “granting, continuing, modifying, refusing, or dissolving injunctions” is appealable under 28 U.S.C. § 1292(a)(1). In determining whether an order is appealable as an order refusing an injunction, there are two requirements. First, the order must have the effect of refusing an injunction. Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981). Second, the appeal must “further the statutory purpose of 'permitting] litigants to effectively challenge interlocutory orders of serious, perhaps irreparable consequence.’ ” Id. (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955)). The district court’s order refused, in part, the Fund’s motion for an injunction to compel the interim payment of withdrawal liability. Although the language of the Fund’s motion did not use the word “injunction,” this court must look to the substance of the request, rather than rely only on its language in determining whether an order is an appealable denial of an injunction. Cf. Ettelson v. Metropolitan Life Insurance Co., 317 U.S. 188, 192, 63 S.Ct. 163, 164, 87 L.Ed. 176 (1942) (interpreting a predecessor to 28 U.S.C. § 1292(a)(1)). In this case, the Fund requested, inter alia, that the court compel Pantry Pride to make future payments according to the schedule in its prior demand which, construed liberally, is a request for an injunction. Also, the denial of the claim to interim withdrawal benefits is a serious one. Congress believed that it was important to insure that the flow of employer withdrawal liability payments was not delayed by an employer disputing liability. See Senate Committee on Labor and Human Resources, Summary and Analysis of S. 1076, 96th Cong., 2d Sess. (1980), reprinted in Special Supp. 310, Pens.Rep. (BNA) 81, 84-85 (1980); H.R.Rep." }, { "docid": "23183278", "title": "", "text": "N.L.R.B. v. Interstate Dress Carriers, Inc., 610 F.2d 99, 104 (3d Cir. 1979). Recently, the Supreme Court reiterated that “we have construed the statute narrowly to ensure that appeal as of right under § 1292(a)(1) will be available only in circumstances where an appeal will further the statutory purpose of ‘permitting litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.’ ” See Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981) quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955). Yet this language neither alters the congressional directive and policy nor undermines the result we reach here. Carson itself held that an interlocutory order of a district court denying a joint motion by parties in a Title VII suit to enter a consent decree containing injunctive relief was an appealable order. In requiring that a litigant demonstrate that an interlocutory order might have a “serious, perhaps irreparable, consequence” and could be challenged only by immediate appeal, the Supreme Court did not cut back the statutory scope of § 1292(a)(1). Rather, the Court sought to distinguish pretrial procedural orders that had the practical effect of refusing an injunction and could be effectually challenged only at that moment, from procedural orders that did not pose irreparable consequences and could be effectively reviewed on appeal from final judgment. Compare Carson, supra (refusal to enter consent decree containing injunctive relief appealable under § 1292(a)(1)) with Switzerland Cheese Association, Inc. v. E. Horne’s Market, Inc., 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966) (denial of motion for summary judgment requesting permanent but no preliminary injunctive relief not appealable under § 1292). When interlocutory orders do not irrevocably affect the merits of the controversy, the Court, in fear of bringing a flood of pretrial orders within the § 1292 exception, has been reluctant to compromise the congressional policy against piecemeal appeals. See Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 482, 98 S.Ct. 2451, 2454, 57 L.Ed.2d 364 (1978) (order denying class certification held not" }, { "docid": "22302216", "title": "", "text": "on the trade secrets claim, asking the parties for supplemental briefing. Because the Court stayed its actions when Vietaulic appealed, the motion to dismiss that count is still pending. II. Appellate Jurisdiction Vietaulic argues that we have jurisdiction under 28 U.S.C. § 1292(a)(1), which provides for appellate review of interlocutory orders “refusing ... injunctions.” Here, the District Court did not explicitly deny an injunction, but Vietaulic argues that the dismissal of four counts of the complaint effectively denied Victaulic’s requests for preliminary (and permanent) injunctions related to those claims. An order that has the “practical effect of refusing an injunction” can be appealable under § 1292(a)(1). Carson v. Am. Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981). But “the mere fact that injunctive relief is requested and is therefore encompassed within the ruling made by the court on other grounds does not transform the ruling into one denying an injunction.” Shirey v. Bensalem Twp., 663 F.2d 472, 477 (3d Cir.1981). Rather, § 1292(a)(1) covers situations in which “the requested injunction was the predominant relief sought.” Id. at 478. By moving for a preliminary injunction, Vietaulic demonstrated that one of its chief goals was to end Tieman’s (admitted) violation of the covenant not to compete. Thus, the dismissal had the practical effect of refusing an injunction. Even so, an interlocutory appeal only lies if the District Court’s order has “ ‘serious, perhaps irreparable, consequenee[s],’ and ... the order can be ‘effectually challenged’ only by immediate appeal.” Carson, 450 U.S. at 84, 101 S.Ct. 993 (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 99 L.Ed. 233 (1955)). We have interpreted Carson as establishing a two-pronged test for determining whether an order such as this is appealable: it must (1) have serious consequences, and (2) immediate appeal must be the only means of effective challenge. See Ross v. Zavarella, 916 F.2d 898, 902 (3d Cir.1990). Our opinions in this area have not been careful to distinguish Carson’s “serious consequences” and “effective challenge” prongs. Nevertheless, it appears that urgency is the touchstone of the" }, { "docid": "12076235", "title": "", "text": "Mrs. Bogosian is entitled to statutory interest on her shares which is accumulating at a rate of 12%. We cannot say that the court required security in excess of what the Rhode Island statute permits, namely an amount “sufficient to assure to the petitioner payment of the value of such shares.” Rhode Island Gen.Laws § 7-1.1-90.1. II The “Interim, Distribution” Order A Appealability The order requiring WRC to pay Mrs. Bogosian $100,000 plus $10,000 per month during the pendency of the suit, with all payments credited against her final award, is appealable under 28 U.S.C. § 1292(a)(1) for the same reasons as the security order; it is a mandatory injunction. It is directed to a party (WRC), it orders that party to take a set of particular actions (sending money each month), it is more than minimally coercive, it has serious consequences, it is enforceable through contempt, and it provides at least part of the relief sought by the suit. See Chronicle Publishing Co. v. Hantzis, 902 F.2d at 1030-31; Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981); Baltimore Contractors Inc., v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955); cf. discussion at pp. 900-902, supra. Other courts have held similar kinds of payment orders appealable as “mandatory injunctions.” See Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 828 (D.C.Cir.1984) (allowing without discussion appeal of mandatory preliminary injunction); United States v. Price, 688 F.2d 204, 215 (3d Cir.1982). We are aware of no authority to the contrary. B The Merits WRC makes two arguments designed to show the order is unlawful. First, WRC argues that, in issuing this order the court must find authorization in Rhode Island, not in federal, law. See Friends for All Children v. Lockheed Aircraft Co., 746 F.2d at 828 n. 18 (looking to state law to determine if equitable relief is available); Sims Snowboards, Inc. v. Kelly, 863 F.2d 643, 647 (9th Cir.1988) (state law governs availability of equitable remedies); but see Perfect Fit Industries, Inc. v." }, { "docid": "22440255", "title": "", "text": "at variance with Kohn and D’Iorio. Considering a district court order that disposed both of plaintiff’s motion for a preliminary injunction and of defendant-intervenor’s motion to file a supplemental answer, the court stated summarily: “This court’s jurisdiction is limited to reviewing that portion of the .. . order refusing to grant an injunction.” Bushkill thus represents a narrow approach to section 1292(a)(1) that would restrict our jurisdiction to the literal terms of the statute. B. Section 1292(a)(1) provides that the appellate courts “shall have jurisdiction of appeals from .. . [ijnterloeutory orders of the district courts . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions. ... ” 28 U.S.C. § 1292(a)(1) (1976). The provision is one of four exceptions to the general rule that our appellate jurisdiction extends to final decisions of district courts. 28 U.S.C. § 1291 (1976). The history of § 1292 has been recounted elsewhere, see, e.g., Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233 (1955); Katz v. Carte Blanche Corp., 496 F.2d 747, 753-54 (3d Cir.), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974); Stewart-Warner Corp. v. Westinghouse Electric Corp., 325 F.2d 822, 829-30 (2d Cir. 1963) (Friendly, J., dissenting), cert. denied, 376 U.S. 944, 84 S.Ct. 800, 11 L.Ed.2d 767 (1964). It is sufficient to note here that section 1292(a)(1) “creates an exception to the long-established policy against piecemeal appeals, which this Court is not authorized to enlarge or extend. The exception is a narrow one and is keyed to the ‘need to permit litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.’ ” Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 480, 98 S.Ct. 2451, 2453, 57 L.Ed.2d 364 (1978) (quoting Baltimore Contractors v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955) (footnote omitted)); accord, Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981). Because section 1292(a)(1) is an exception to an otherwise fundamental rule of federal appellate jurisdiction, we must construe the" }, { "docid": "467850", "title": "", "text": "granted nor refused to grant an injunction, instead sending the motion to a magistrate to conduct evidentiary hearings. The consent decree itself, however, entered by the court in 1972 and which appellees by the 1979 motion sought to enforce, provides for affirmative injunctive relief. It is settled that a consent decree may constitute an injunction for purposes of § 1292(a)(1). See, e. g., Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981); Myers v. Gilman Paper Co., 544 F.2d 837, 847 (5th Cir.), modified on other grounds, 556 F.2d 758 (1977). The specific provision of the decree at issue (clause II.B) orders the defendants to permanently utilize a system of mill seniority with respect to the affected class. In response to plaintiffs’ motion, defendants contended that all provisions of the decree had expired; in essence, they asked the court to dissolve the injunction. In holding that the decree con- ' tinues to be viable, the court’s order had the practical effect of refusing to dissolve the injunction. The Supreme Court has recently reaffirmed that “[f]or an interlocutory order to be immediately appealable under § 1292(aXl) . . ., a litigant must show more than that the order has the practical effect of refusing an injunction.” Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981). Appeal as of right under § 1292(aXl) is available only if the appellant can show that the interlocutory order “might have serious, perhaps irreparable, consequence” and that the order may be “effectually challenged” only by immediate appeal. Id. at 84, 101 S.Ct. at 996; Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955). In Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 98 S.Ct. 2451, 57 L.Ed.2d 364 (1978) and Switzerland Cheese Association, Inc. v. E. Horne’s Market, Inc., 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966), the Court held interlocutory orders that refused the injunctive relief requested in the complaint not appealable because the orders lacked “serious, perhaps irreparable” consequences. In" }, { "docid": "21848150", "title": "", "text": "hear the appeal, we should exercise our discretion to dismiss it because Violet has refused to comply with the July 17 Order. We find neither argument persuasive. A. Jurisdiction Section 1292(a)(1) of 28 U.S.C. grants the courts of appeals jurisdiction to review “[interlocutory orders of ... district courts ... granting, continuing, modifying, refusing or dissolving injunctions, or. refusing to dissolve or modify injunctions.” Adopted by Congress “to permit litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence,” Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955), and because “rigid application of [the final-judgment] principle was found to create undue hardship in some cases,” Carson v. American Brands, Inc., 450 U.S. 79, 83, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981), this statutory exception to the final-judgment rule has generally been narrowly construed, see id. at 84-86, 101 S.Ct. at 996-997; Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 480-82, 98 S.Ct. 2451, 2453-54, 57 L.Ed.2d 364 (1978); Switzerland Cheese Association, Inc. v. E. Horne’s Market, Inc., 385 U.S. 23, 24, 87 S.Ct. 193, 194, 17 L.Ed.2d 23 (1966); United States v. Wade, 713 F.2d 49, 52 (3d Cir.1983); Williams v. Wallace Silversmiths, Inc., 566 F.2d 364, 365 (2d Cir.1977) (per curiam). Accordingly, we have held that review under “§ 1292(a) (1) is limited ‘to injunctions which give or aid in giving some or all of the substantive relief sought by a complaint,’ ” Miller v. United States, 403 F.2d 77, 78 (2d Cir.1968) (Friendly, J.) (quoting International Products Corp. v. Koons, 325 F.2d 403, 406 (2d Cir.1963) (Friendly, J.)) and the Supreme Court has held that “[o]rders that in no way touch on the merits of the claim ... are not ... ‘interlocutory’ within the meaning of § 1292(a)(1),” Switzerland Cheese Association, Inc. v. E. Horne’s Market, Inc., 385 U.S. at 25, 87 S.Ct. at 195. The further teaching of the Supreme Court has limited that section to appeals from interlocutory orders that the appealing parties can show “might cause them irreparable consequences if not immediately reviewed.” Carson v. American" }, { "docid": "23183277", "title": "", "text": "interlocutory and not final within meaning of § 1291); Fireman’s Fund Insurance Co. v. Joseph J. Biafore, Inc., 526 F.2d 170 (3d Cir. 1975) (district court order which did not resolve damages claim not appealable under 28 U.S.C. § 1291). Although litigation with respect to the entire judicial unit has not terminated, Congress, since 1891, has excepted from the finality rule a group of interlocutory orders of an equitable nature. Now codified at 28 U.S.C. § 1292(a), subsection (1) permits appeal from orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to modify or dissolve injunctions. .. . ” Because the district court, in partially granting plaintiffs’ motion for summary judgment, ordered the school district to provide CIC for the duration of Amber’s special education program, we hold that we have appellate jurisdiction to review this interlocutory decision under 28 U.S.C. § 1292(a)(1). An injunction that does not cover all the legal relief a plaintiff seeks is nevertheless a coercive order from which Congress has granted litigants a right to immediate appellate review. See N.L.R.B. v. Interstate Dress Carriers, Inc., 610 F.2d 99, 104 (3d Cir. 1979). Recently, the Supreme Court reiterated that “we have construed the statute narrowly to ensure that appeal as of right under § 1292(a)(1) will be available only in circumstances where an appeal will further the statutory purpose of ‘permitting litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.’ ” See Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981) quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955). Yet this language neither alters the congressional directive and policy nor undermines the result we reach here. Carson itself held that an interlocutory order of a district court denying a joint motion by parties in a Title VII suit to enter a consent decree containing injunctive relief was an appealable order. In requiring that a litigant demonstrate that an interlocutory order might have a “serious, perhaps irreparable, consequence” and could be challenged only by immediate appeal," }, { "docid": "16784103", "title": "", "text": "1292(a)(1). To be sure, it was an order having the “practical effect” of a preliminary injunction, but such an order is not appealable unless the appealing party demonstrates that it faces “serious, perhaps irreparable consequences,” Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981) (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955)). See I.A.M. National Pension Fund Benefit Plan v. Cooper Industries, Inc., 789 F.2d 21 (D.C.Cir.), cert. denied, — U.S. —, 107 S.Ct. 473, 93 L.Ed.2d 417 (1986). Here, KSC concedes that it faces no such consequences. Nor did it seek or obtain certification of the payment order in accordance with 28 U.S.C. § 1292(b). Accordingly, KSC’s attempted appeal must be dismissed for lack of jurisdiction. 2. RTF’s Appeal While urging us to dismiss KSC’s appeal of the payment order, PTF asks us to hear its appeal of the escrow order. PTF distinguishes the two situations by claiming that it is suffering irreparable injury from the escrow order and thus is entitled to an appeal under Carson. PTF’s first argument in support of this position is that the rate of interest it is receiving on the escrow account is less than that which it could earn in its own investment portfolio. This harm may be redressed by the final judgment in the event that PTF prevails, and is insufficient to justify an interlocutory appeal. At oral argument, PTF for the first time advanced another hardship purportedly imposed by the escrow order: contending that it faced many suits like this one, it urged that if escrow orders were entered in all of them, its ability to pay pensions to its members would be impaired. We reject this contention as entirely speculative. Each party retains its right to seek modification of the district court’s orders on the basis of changed circumstances. In the event that such a motion were made, and denied, and grave injury inflicted by the denial, then we would review the matter in accordance with the principles already stated. For" }, { "docid": "23013156", "title": "", "text": "v. American Brands, Inc., 450 U.S. 79, 84 [101 S.Ct. 993, 996, 67 L.Ed.2d 59] (1981) (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181 [75 S.Ct. 249, 252, 99 L.Ed. 233] (1955)). Because we have concluded that [the intervenor] can challenge the limitations on its participation during post-trial review, we conclude that § 1292(a)(1) provides no basis for affirming the decision below [that the order was appealable]. — U.S. at-, 107 S.Ct. at 1183 (footnote omitted). IV The import given to the series of decisions from General Electric to Carson has not been uniform in the circuits or, indeed, within a circuit. All are in agreement that the threshold requirement for invoking section 1292(a)(1) is that the order must have the effect of the grant or denial of an injunction, that is, it must be established that the order is injunctive in nature. Some courts have applied the Carson requirements for appealability to all deemed injunctive orders, excluding as a class only orders which are specifically directed to the propriety of preliminary injunctive relief. See, e.g., Shanks v. City of Dallas, 752 F.2d 1092, 1097 (5th Cir.1985) (“the erroneous denial of a preliminary injunction, therefore, will necessarily result in the type of serious consequence that § 1292(a)(1) is designed to prevent”); Chappell & Co. v. Frankel, 367 F.2d 197 (2d Cir.1966) (in banc) (only order refusing to grant preliminary injunction, as a class of case, poses a threat of irreparable harm). Cf. In re Flight Transp. Corp. Sea Litig., 730 F.2d 1128, 1133 (8th Cir.1984), cert. denied, 469 U.S. 1207, 105 S.Ct. 1169, 84 L.Ed.2d 320 (1985) (applied Carson requirements to deemed denial of motion for preliminary injunction). Others have found various distinctions, derived from the earlier decisions, for continuing to hold certain classes of deemed injunctive orders appealable as of right, that is without the separate showings required in Carson. See, e.g., Donovan v. Robbins, 752 F.2d 1170, 1174 (7th Cir.1985) (Carson requirements apply to deferral of permanent injunction but not to definitive denial of permanent injunction); Winterland Concessions Co. v. Trela, 735 F.2d 257, 261 (7th" }, { "docid": "22260575", "title": "", "text": "if seeking multiple remedies for the alleged violation of that right, states a single claim for relief.”). B. There are statutory exceptions to the final judgment rule. One, contained in 28 U.S.C. § 1292(a)(1), bestows appellate jurisdiction over interlocutory orders “granting, continuing, modifying, refusing or dissolving injunctions.” Although the parties did not suggest it, we may have jurisdic tion under § 1292(a) to review the district court’s partial dismissal of Counts 2-6, which was phrased in terms of a dismissal “to the extent that these five counts request injunctive and declaratory relief.” But only if that dismissal amounted to the refusal to issue an injunction. Section 1292(a) is not, however, a golden ticket litigants can use to take any decision affecting injunctive relief on a trip to the court of appeals. Just because a district court’s order has the “practical effect of refusing an injunction,” it does not automatically qualify for immediate appeal under § 1292(a)(1). Carson v. Am. Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996-97, 67 L.Ed.2d 59 (1981). The Supreme Court has instructed us that unless such an order threatens a “ ‘serious, perhaps irreparable, consequence’ ” and can be “ ‘effectually challenged’ only by immediate appeal, the general congressional policy against piecemeal review will preclude interlocutory appeal.” Id. at 84, 101 S.Ct. at 997 (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955)); see also Citizens Concerned About Our Children v. Sch. Bd. of Broward County, Fla., 193 F.3d 1285, 1289 (11th Cir.1999) (“[A]n order that does not rule on a request for injunctive relief, but that has the effect of denying it, may be immediately appealable. For such an interlocutory order to be appealable before final judgment, the prospective appellant must show that the denial of injunctive relief has a ‘serious, perhaps irreparable, consequence, and that the order can be effectually challenged only by immediate appeal.’ ” (citations omitted)). An interlocutory order that explicitly denies an injunction, however, “fits squarely within the plain language of § 1292(a)(1),” regardless of whether an immediate appeal is" }, { "docid": "10769338", "title": "", "text": "summary judgment). The Supreme Court recently held that a district court’s refusal to enter a consent decree containing injunctive provisions was appealable under 28 U.S.C.A. § 1292(a)(1). Carson v. American Brands, Inc., - U.S. -, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981). The Court was careful to note that an order is not appealable merely because it has the “practical effect” of denying an injunction. For an interlocutory order to be immediately appealable under § 1292(a)(1), however, a litigant must show more than that the order has the practical effect of refusing an injunction. Because § 1292(a)(1) was intended to carve out only a limited exception to the final judgment rule we have construed the statute narrowly to ensure that appeal as of right under § 1292(a)(1) will be available only in circumstances where an appeal will further the statutory purpose of “permit[ting] litigants to effectually challenge interlocutory order of serious, perhaps irreparable, consequence.” Baltimore Contractors, Inc. v. Bodinger, supra, 348 U.S., [176] at 181 [75 S.Ct. 249 at 252, 99 L.Ed. 233] Unless a litigant can show that an interlocutory order of the District Court might have “serious, perhaps irreparable, consequence,” and that the order can be “effectually challenged” only by immediate appeal, the general congressional policy against piecemeal review will preclude interlocutory appeal. 101 S.Ct. at 995-97. As stated earlier, Gould has never even attempted to show that the district court’s orders will have irreparable consequences. If the quoted language from C.arson is taken literally, this failure defeats our jurisdiction. In any event, a movant must prove “a substantial threat that [he] will suffer irreparable injury if the injunction is not granted,” Canal Authority v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974) before he will be entitled to a preliminary, id., or a permanent, United States v. W. T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), injunction. In this case, the appellant never attempted to “satisfy the court that relief is needed,” 345 U.S. at 633, 73 S.Ct. at 897, 97 L.Ed. at 1309, so we cannot say he was entitled to" }, { "docid": "20329633", "title": "", "text": "Except as provided in subsections (c) and (d) of this section, the courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States ..., or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions _ (Emphasis added.). Plaintiffs, however, contest our appellate jurisdiction and argue the district court neither refused to dissolve nor continued the existing injunction. More particularly, Plaintiffs contend the Forest Service did not request in its motion that the injunction be lifted. Because § 1292 is intended to carve out limited exceptions to the general rule that only final judgments of federal district courts are reviewable on appeal, the statute is construed narrowly. Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981). Thus, only when the interlocutory order of the district court specifically and explicitly grants or denies an injunction is such order immediately appealable under § 1292(a)(1). Justin Indus., Inc. v. Choctaw Securities, L.P., 920 F.2d 262, 265 & n. 2 (5th Cir.1990); Atwood Turnkey Drilling, Inc. v. International Underwater Contractors, 875 F.2d 1174, 1176 (5th Cir.1989), cert. denied sub nom. Petroleo Brasileiro, S.A. v. Atwood Turnkey Drilling, Inc., 493 U.S. 1075, 110 S.Ct. 1124, 107 L.Ed.2d 1030 (1990). If the district court’s order is not explicit, but merely has the practical effect of granting or denying injunctive relief, § 1292(a)(1) permits an appeal provided the litigant can further establish “that [the] interlocutory order of the' district court might have a ‘serious, perhaps irreparable, consequence,’ and that the order can be ‘effectually challenged’ only by immediate appeal.” Carson, 450 U.S. at 84, 101 S.Ct. at 996 (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955)). See also EEOC v. Kerrville Bus Co., 925 F.2d 129, 132 (5th Cir.1991). Thus, the question is whether the district court’s order explicitly continued or refused to dissolve the existing injunction. An affirmative answer halts our inquiry and establishes our jurisdiction. Despite Plaintiffs’ contention that the" }, { "docid": "2376441", "title": "", "text": "that prompted the injunction because it is “relevant to further proceedings in the District Court regarding damages.” Appellants’ brief at 45. Surgidev urges that this court is without jurisdiction to consider this issue. Our jurisdiction in this appeal flows solely from 28 U.S.C. § 1292(a)(1), which authorizes, in part, appeals from interlocutory orders granting injunctions or refusing to dissolve or modify injunctions. Because section 1292(a)(1) represents a departure from the general federal policy against piecemeal review, it must be construed strictly. E.g., Switzerland Cheese Ass’n v. E. Horne’s Market, Inc., 385 U.S. 23, 24, 87 S.Ct. 193, 195, 17 L.Ed.2d 23 (1966). The rule “spring[s] from a developing need to permit litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.” Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955); see also Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981). ETI’s right to appeal from the district court’s order “only goes to the injunction itself, and [ETI] cannot force consideration of the merits of the underlying case except as necessary to review the injunction.” Gould v. Control Laser Corp., 650 F.2d 617, 621 n. 7 (5th Cir.1981). This is not a situation where the asserted tortious interference issue is “interdependent with” or “a part of” a disputed injunction or issues concerning that injunction. See In re Federal Skywalk Cases, 680 F.2d 1175, 1180 (8th Cir.), cert. denied, 459 U.S. 988, 103 S.Ct. 342, 74 L.Ed.2d 383 (1982); Helzberg’s Diamond Shops, Inc. v. Valley West Des Moines Shopping Center, Inc., 564 F.2d 816, 818 (8th Cir.1977). To the contrary, the tortious interference issue has absolutely no bearing on any other issue in this appeal, let alone any “interlocutory orders of serious, perhaps irreparable, consequence.” Baltimore Contractors, 348 U.S. at 181, 75 S.Ct. at 252. It makes little difference that the issue may affect a later proceeding. If it does — and we have no assurance that it will — and if ETI loses, ETI can then appeal from a final decision and obtain" }, { "docid": "21413961", "title": "", "text": "(9th Cir.1986). The order to pay $33,758 in fees within 60 days satisfies the “immediate turn-over of property” requirement. But for the reasons given above, we do not find that payment of this modest award will irreparably harm the United States. IV. Appealability as an Injunction under 28 U.S.C. § 1292(a)(1) The government alternatively contends that the interim fee award is appeal-able as an injunction under 28 U.S.C. § 1292(a)(1). This argument is unavailing. According to the government, the order to pay the fees within 60 days had the practical effect of granting an injunction, in that it required the performance of some act — payment of the award within a limited period of time. This fails, however, to rise to the status of an appealable injunction for reasons lucidly set forth by the Supreme Court in Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996-97, 67 L.Ed.2d 59 (1981): For an interlocutory order to be immediately appealable under § 1292(a)(1), however, a litigant must show more than that the order has the practical effect of [granting or] refusing an injunction. Because § 1292(a)(1) was intended to carve out only a limited exception to the final judgment rule, we have construed the statute narrowly to ensure that appeal as of right under § 1282(a)(1) will be available only in circumstances where an appeal will further the statutory purpose of “permit[ting] litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.” Baltimore Contractors, Inc. v. Bodinger, supra, [348 U.S. 176] 181 [75 S.Ct. 249, 252-53, 99 L.Ed. 233 (1955)]. Unless a litigant can show that an interlocutory order of the district court might have a “serious, perhaps irreparable, consequence,” and that the order can be “effectually challenged” only by immediate appeal, the general congressional policy against piecemeal review will preclude interlocutory appeal. As indicated above, the government has not met its burden of showing irreparable harm. The government’s strong reliance on Webster v. Sowders, 846 F.2d 1032, is misplaced. Although it is true that the Sixth Circuit reasoned that an interim fee payment should be considered" }, { "docid": "16259724", "title": "", "text": "have jurisdiction over his appeal under 28 U.S.C. § 1292(a)(1) because the order appealed from denied injunctive relief. He points to the language of paragraph (4) of the Court’s order, which provides, “Defendants’ motion to dismiss plaintiffs’ prayer for injunctive and declaratory relief is GRANTED. Such dismissal is with prejudice”, and argues that this represents a refusal of his claim for injunctive relief. Section 1292(a)(1) provides, in part: (a) The courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions 28 U.S.C. § 1292(a)(1) (emphasis added). Although appellant construes this provision as automatically bestowing appellate jurisdiction when any order nominally grants or denies injunctive relief, the statute conditions our jurisdiction on (1) the entry of an “interlocutory” order, and (2) a district court decision on injunctive relief. The Supreme Court’s review of the purpose of and history behind § 1292(a)(1) is instructive of its scope. The statute was designed to modify the rule of finality because of a “need to permit litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.” Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955). Last Term, the Court again stressed the intent of that statutory provision to provide a vehicle for those orders which “can be ‘effectually challenged’ only by immediate appeal.” Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981). Because § 1292(a)(1) was enacted to alleviate the undue hardship caused by rigid application of the general principle permitting appellate review of only final decisions of the federal district courts and to prevent irreparable harm before the ultimate disposition of the case could be completed, its primary use has been for appellate review of decisions on preliminary injunctions. See, e. g., Merrell-National Laboratories, Inc. v. Zenith Laboratories, Inc., 579 F.2d 786 (3d Cir. 1978); United States v. Pennsylvania, 533 F.2d 107 (3d Cir. 1976). The limitation of the section" }, { "docid": "16259725", "title": "", "text": "designed to modify the rule of finality because of a “need to permit litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.” Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955). Last Term, the Court again stressed the intent of that statutory provision to provide a vehicle for those orders which “can be ‘effectually challenged’ only by immediate appeal.” Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981). Because § 1292(a)(1) was enacted to alleviate the undue hardship caused by rigid application of the general principle permitting appellate review of only final decisions of the federal district courts and to prevent irreparable harm before the ultimate disposition of the case could be completed, its primary use has been for appellate review of decisions on preliminary injunctions. See, e. g., Merrell-National Laboratories, Inc. v. Zenith Laboratories, Inc., 579 F.2d 786 (3d Cir. 1978); United States v. Pennsylvania, 533 F.2d 107 (3d Cir. 1976). The limitation of the section to “interlocutory” orders was focused upon in Switzerland Cheese Association, Inc. v. E. Horne’s Market, Inc., 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966), where appellants sought to appeal from the district court’s denial of a motion for summary judgment which would have included the grant of a permanent injunction against trademark infringement and unfair competition. In affirming the decision of the court of appeals that the order denying the motion for summary judgment was not an “interlocutory” one within the meaning of § 1292(a)(1), the Court stated: It is earnestly argued, however, that, although this order denied a permanent injunction, it was nonetheless “interlocutory” within the meaning of § 1292(a)(1) because the motion for summary judgment did service for a motion for a preliminary injunction . . . and that therefore “interlocutory” must also include a denial of a permanent injunction. We take the other view not because “interlocutory” or preliminary may not at times embrace denials of permanent injunctions, but for the reason that the denial of a motion for a" }, { "docid": "1177602", "title": "", "text": "partial summary judgment had the effect of denying its request for injunctive relief. We find that Chaparral’s position is unsupported by the facts and the law. It is clear that a specific order denying an injunction is not required for appealability under § 1292. The court will look to the substance of the order, not merely its label. General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430, 53 S.Ct. 202, 77 L.Ed.2d 408 (1932) (counterclaim for injunctive relief dismissed on jurisdictional grounds); Electronic Data Systems Federal Corp. v. General Services Administration, Board of Contract Appeals, 792 F.2d 1569 (Fed.Cir.1986) (grant of stay deemed to have effect of preliminary injunction); Rhone-Poulenc Specialties Chimiques v. SCM Corp., 769 F.2d 1569 (Fed.Cir.1985) (denial of stay to permit arbitration). In each of these cases, injunctive-type relief was clearly at issue although the order was not specifically denominated as the grant or denial of an injunction. Moreover, in applying this principle, the guidance of the Supreme Court in Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981), must be followed. The Supreme Court stated: For an interlocutory order to be immediately appealable under § 1292(a)(1), however, a litigant must show more than that the order has the practical effect of refusing an injunction. Because § 1292(a)(1) was intended to carve out only a limited exception to the final-judgment rule, we have construed the statute narrowly to ensure that appeal as of right under § 1292(a)(1) will be available only in circumstances where an appeal will further the statutory purpose of permit[ting] litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence. Baltimore Contractors, Inc. v. Bodinger, supra, at 181 [75 S.Ct. at 252] [348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233 (1955)]. Unless a litigant can show that an interlocutory order of the district court might have ‘serious, perhaps irreparable, consequence,’ and that the order can be ‘effectually challenged’ only by immediate appeal, the general congressional policy against piecemeal review will preclude interlocutory appeal. 450 U.S. at 84, 101 S.Ct. at 997; see also Switzerland" }, { "docid": "6451894", "title": "", "text": "or clearly erroneous factual findings.’ ” Abbott Labs. v. Andrx Pharms., Inc., 452 F.3d 1331, 1335 (Fed.Cir.2006) (quoting Polymer Techs., Inc. v. Bridwell, 103 F.3d 970, 973 (Fed.Cir.1996)). I. JURISDICTION Our jurisdiction over an interlocutory appeal such as that brought by P & G in this case is governed by 28 U.S.C. § 1292(a)(1) and (c)(1). Taken together, these subsections provide that this court has exclusive jurisdiction over appeals from interlocutory orders “granting, continuing, modifying, refusing or dissolving injunctions,” 28 U.S.C. § 1292(a)(1), in any case over which this court would have jurisdiction of an appeal under § 1295. 28 U.S.C. § 1292(c)(1). The Supreme Court has interpreted § 1292(a)(1) as providing a limited exception to the final judgment rule that is only available when “a litigant can show that an interlocutory order of the district court might have a ‘serious, perhaps irreparable, consequence,’ and that the order can be ‘effectually challenged’ only by immediate appeal.” Carson v. Am. Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981) (quoting Balt. Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 99 L.Ed. 233 (1955)); see also Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 287-88, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988) (“Section 1292(a)(1) will, of course, continue to provide appellate jurisdiction over orders that grant or deny injunctions and orders that have the practical effect of granting or denying injunctions and have serious, perhaps irreparable, consequence.” (internal quotation marks omitted)). In Woodard, this court stated that “[a]n order which is deemed to deny a preliminary injunction readily satisfies the Carson requirements.” 818 F.2d at 851; see also id. at 853. Accordingly, we have jurisdiction over P & G’s appeal if the trial court’s stay order had the practical effect of denying P & G’s motion for a preliminary injunction. Under this standard, we conclude that jurisdiction is proper. The trial court explicitly refused to consider the merits of P & G’s motion for a preliminary injunction. Indeed, the judge concluded it was moot. Even if this statement is merely a refusal to consider" }, { "docid": "21848149", "title": "", "text": "to the court with respect to her income and bank accounts. Violet timely appealed from the July 17 Order as so modified. On appeal, she contends principally that the district court lacked statutory authority to grant the mandatory injunction ordering turnover, and that, in any event, it applied improper standards in entering that order. The Trustee opposes the appeal on its merits but also has moved to dismiss on the grounds (1) that the July 17 Order is not appealable, and (2) that we should exercise our discretion to dismiss the appeal because Violet has refused to comply with the order appealed from. For the reasons below, we decline to dismiss the appeal and we affirm the July 17 Order. II. Appealability The Trustee contends that we lack jurisdiction to hear Violet’s appeal from the July 17 Order, because that order is neither a “final decision” appealable under 28 U.S.C. § 1291, nor an interlocutory order that is appealable under 28 U.S.C. § 1292(a)(1). Alternatively, the Trustee argues that even if we have jurisdiction to hear the appeal, we should exercise our discretion to dismiss it because Violet has refused to comply with the July 17 Order. We find neither argument persuasive. A. Jurisdiction Section 1292(a)(1) of 28 U.S.C. grants the courts of appeals jurisdiction to review “[interlocutory orders of ... district courts ... granting, continuing, modifying, refusing or dissolving injunctions, or. refusing to dissolve or modify injunctions.” Adopted by Congress “to permit litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence,” Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955), and because “rigid application of [the final-judgment] principle was found to create undue hardship in some cases,” Carson v. American Brands, Inc., 450 U.S. 79, 83, 101 S.Ct. 993, 996, 67 L.Ed.2d 59 (1981), this statutory exception to the final-judgment rule has generally been narrowly construed, see id. at 84-86, 101 S.Ct. at 996-997; Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 480-82, 98 S.Ct. 2451, 2453-54, 57 L.Ed.2d 364 (1978); Switzerland Cheese Association, Inc. v. E. Horne’s Market," } ]

[ { "docid": "8071329", "title": "", "text": "business, this exception does not help her. Nor do any of the exceptions contained in section 280A(c)(l), quoted above, fit the situation. Decision will be entered under Rule 155. Pub. L. 94-455, 90 Stat. 1520. Bodzin v. Commissioner, 60 T.C. 820 (1973), revd. 509 F.2d 679 (4th Cir. 1975). “In the absence of definitive controlling standards, the ‘appropriate and helpful’ test increases the inherent administrative problems because both business and personal uses of the residence are involved and substantiation of the time used for each of these activities is clearly a subjective determination. * * * Thus, expenses considered nondeductible personal, living, and family expenses might be converted into deductible business expenses simply because, under the facts of the particular case, it was appropriate and helpful to perform some portion of the taxpayer’s business in his personal residence. [S. Rept. 94-938 (1976), 1976-3 C.B. (Vol. 3) 49, 185.]” This report also cited Anderson v. Commissioner, T.C. Memo. 1974-49, as another case where this Court applied the “appropriate and helpful” standard. Defined in Black’s Law Dictionary 1355 (4th ed. 1951), as “[c]hief; leading; most important or considerable; primary; original. Highest in rank, authority, character, importance, or degree.” In our recent decision in Curphey v. Commissioner, 73 T.C. 766, 776 (1980), we noted that “section 280A(c)(l)(A) requires a determination as to whether, with respect to a particular business conducted by a taxpayer, the home office was his principal place for conducting that business.” Such determination was unnecessary since respondent had conceded that if the taxpayer’s rental activities constituted a trade or business (and not merely an activity for the production of income), then his home office was the principal place of business with respect to those activities. We again note that petitioner used her kitchen for personal purposes and, thus, did not satisfy the “exclusively” requirement of sec. 280A(c)(l). Although petitioner’s bookkeeping room was used exclusively for the business matters of the Gay Dog, it is readily apparent that such room did not constitute the focal point (principal place) of the Gay Dog’s business operations. The exceptions contained in sec. 280A(c)(l)(B) and" } ]

[ { "docid": "23388743", "title": "", "text": "spent at each location. I think this inquiry, “subtle” though it may be, ibid., will unnecessarily require the lower courts to conduct full-blown evidentiary hearings each time the Commissioner challenges a deduction under § 280A(e)(l)(A). Moreover, as structured, the Court’s “test” fails to provide clear guidance as to how the two-factor inquiry should proceed. Specifically, it is unclear whether the time element and importance-of-the-functions element are of equal significance. I write separately because I believe that in the overwhelming majority of cases (including the one before us), the “focal point” test — which emphasizes the place where the taxpayer renders the services for which he is paid or sells his goods — provides a clear, reliable method for determining whether a taxpayer’s home office is his “principal place of business.” I would employ the totality-of-the-circumstances inquiry, guided by the two factors discussed by the Court, only in the small minority of cases where the home office is one of several locations where goods or services are delivered, and thus also one of the multiple locations where income is generated. I certainly agree that the word “principal” connotes “ ‘most important,’ ” ante, at 174, but I do not agree that this definition requires courts in every case to resort to a totality-of-the-circumstances analysis when determining whether the taxpayer is entitled to a home office deduction under §280A(c)(l)(A). Rather, I think it is logical to assume that the single location where the taxpayer’s business income is generated — i. e., where he provides goods or services to clients or customers — will be his principal place of business. This focal point standard was first enunciated in Baie v. Commissioner, 74 T. C. 105 (1980), and has been consistently applied by the Tax Court (until the present case) in determining whether a taxpayer’s home office is his principal place of business. Indeed, if one were to glance quickly through the Court’s opinion today, one might think the Court was in fact adopting the focal point test. At two points in its opinion the Court hails the usefulness of the focal point inquiry:" }, { "docid": "23388725", "title": "", "text": "which he used exclusively as an office. Although he did not meet patients in the home office, Solimán spent two to three , hours per day there on a variety of tasks such as contacting patients, surgeons, and hospitals by telephone; maintaining billing records and patient logs; preparing for treatments and presentations; satisfying continuing medical education requirements; and reading medical journals and books. On his 1983 federal income tax return, Solimán claimed deductions for the portion of condominium fees, utilities, and depreciation attributable to the home office. Upon audit, the Commissioner disallowed those deductions based upon his determination that the home office was not Soliman’s principal place of business. Solimán filed a petition in the Tax Court seeking review of the resulting tax deficiency. The Tax Court, with six of its judges dissenting, ruled that Soliman’s home office was his principal place of business. 94 T. C. 20 (1990). After noting that in its earlier decisions it identified the place where services are performed and income is generated in order to determine the principal place of business, the so-called “focal point test,” the Tax Court abandoned that test, citing criticism by two Courts of Appeals. Id., at 24-25 (noting Meiers v. Commissioner, 782 F. 2d 75 (CA7 1986); Weissman v. Commissioner, 751 F. 2d 512 (CA2 1984); and Drucker v. Commissioner, 715 F. 2d 67 (CA2 1983)). Under a new test, later summarized and adopted by the Court of Appeals, the Tax Court allowed the deduction. The dissenting opinions criticized the majority for failing to undertake a comparative analysis of Soliman’s places of business to establish which one was the principal place. 94 T. C., at 33, 35. The Commissioner appealed to the Court of Appeals for the Fourth Circuit. A divided panel of that court affirmed. 935 F. 2d 52 (1991). It adopted the test used in the Tax Court and explained it as follows: “[The] test. . . provides that where management or administrative activities are essential to the taxpayer’s trade or business and the only available office space is in the taxpayer’s home, the ‘home office’ can" }, { "docid": "4423968", "title": "", "text": "no typewriter. Moreover, as the Tax Court found, it was “not a safe place to leave teaching, writing, or research materials and equipment.” The City College library was available to Professor Weissman from 9:00 a.m. to 9:00 p.m. on weekdays, but it did not afford him any private space in which to work. II. To qualify for a home-office deduction, a taxpayer must show that the office in his residence “is exclusively used on a regular basis” as his “principal place of business.” 26 U.S.C. § 280A(c)(l) (1982). An employee, such as Professor Weissman, must also demonstrate that the office is maintained “for the convenience of his employer.” Id. The fact that Professor Weissman used his home office exclusively and on a regular basis for employment-related activities is not disputed. Therefore we turn first to the issue whether the Tax Court correctly concluded that City College was Professor Weissman’s principal place of business. A. In identifying a taxpayer’s principal place of business, the Tax Court often seeks to ascertain the “focal point” of his business activities. Jackson v. Commissioner, 76 T.C. 696, 700 (1981); Baie v. Commissioner, 74 T.C. 105, 109 (1980). While this may be helpful in many cases, when a taxpayer’s occupation involves two very distinct yet related activities, such as practice and performance, see Drucker v. Commissioner, 715 F.2d 67 (2d Cir.1983), or writing and teaching, the “focal point” approach creates a risk of shifting attention to the place where a taxpayer’s work is more visible, instead of the place where the dominant portion of his work is accomplished. In the case of educators, the focal point approach does not always adequately distinguish between individuals with very different employment activities. No doubt many college professors spend most of their working hours teaching or engaging in teaching-related activities such as preparing for classes, meeting with students, and grading examinations and papers. Some college professors, however, spend the major share of their working hours researching and writing. Both types of employee have earned the designation “professor,” but the title should not obscure the differences between them. In this case," }, { "docid": "9825692", "title": "", "text": "such situations, the expenses properly attributable to each business are deductible. Fackler v. Commissioner, 133 F.2d at 511-512. Respondent argues, nevertheless, that, where a taxpayer is engaged in more than one business, a deduction is allowable under section 280A(c)(1)(A) only if, when all his businesses are considered together, his home office is his principal place of business as determined by evaluating the time spent, the degree of business activity, and the financial return from the activity at each business post. Respondent’s suggested criteria for determining the taxpayer’s principal place of business are drawn from cases involving the issue of whether a taxpayer was “away from home” for purposes of section 162(a). E.g., Frank v. United States, 577 F.2d 93 (9th Cir. 1978); Montgomery v. Commissioner, 532 F.2d 1088 (6th Cir. 1976), affg. 64 T.C. 175 (1975). See also Coombs v. Commissioner, 608 F.2d 1269 (9th Cir. 1979), affg., revg., and remanding 67 T.C. 426 (1976). “Principal place of business,” as used in those cases, refers to a general area or vicinity in which a taxpayer’s “tax home” is located, and a taxpayer cannot have more than one “tax home.” “Principal place of business,” as that term is employed in section 280A(c)(1)(A), refers to the home as a specific situs in which a business is carried on. We find no indication either in the statute or the legislative history that a taxpayer cannot have more than one principal place of business, for purposes of section 280A(c)(1), if he engages in more than one trade or business. We think that section 280A(c)(1)(A) requires a determination as to whether, with respect to a particular business conducted by a taxpayer, the home office was his principal place for conducting that business. Such a determination will fulfill the legislative objective of preventing deductions for the use of a home for purposes which are primarily personal. See S. Rept. 94-938, supra, 1976-3 C.B. (Vol. 3) at 185; H. Rept. 94-658, supra, 1976-3 C.B. (Vol. 2) at 852. The requirement that the secondary activity be a “trade or business” and not just a “section 212” income-producing activity," }, { "docid": "18747171", "title": "", "text": "and sofa. It is undisputed that this separate' room was used exclusively for administrative work on behalf of the laundry. It is also undisputed that the taxpayers made a legitimate business decision not to make office space in the laundromat. II. The sole issue in this case is whether the taxpayers are entitled to deductions arising from the maintenance of an office in their home. The Tax Court disallowed the “home office” deductions because it concluded that the “focal point” of the taxpayers’ laundromat business was at the laundry. See, e.g., Baie v. Commissioner, 74 T.C. 105 (1980). The taxpayers contend that the Tax Court erred in basing its decision upon the “focal point” of the laundromat business rather than upon the principal situs of Mrs. Meiers’ activities in performing her responsibilities as an employee of the laundromat. Taxpayers contend that the principal situs or focal point of Mrs. Meiers’ activities as an employee of the laundromat is her home office. The general rule contained in 26 U.S.C. § 280A, which controls home office deductions, is that “no deduction ... shall be allowed with respect to the use of a dwelling unit which is used by the taxpayer during the taxable year as a residence.” This general rule is, however, subject to an Exception for expense which is allocable to a portion of the dwelling unit that is exclusively used on a regular basis: (1) as the taxpayer’s principal place of business, or (2) as a place which is used by patients, clients or customers in meeting or dealing with the taxpayer. 26 U.S.C. § 280A(c). Further, when an employee maintains a home office, deductions are allowed only if the home office is maintained for the convenience of the employer. Prior to the enactment of § 280A, which specifically addresses the deductibility of home office expenses, 26 U.S.C. § 162 (deduction of ordinary and necessary business expenses), § 212 (deduction of expenses incurred for the production of income) and § 262 (non-deductibility of personal, living or family expenses) governed the deductibility of expenses for a home office. In analyzing the" }, { "docid": "12604413", "title": "", "text": "that her home office was exclusively used on a regular basis as her principal place of business, or that it was regularly used to meet clients in the normal course of her trade or business. Petitioner is thus not entitled to deduct the expenses of maintaining an office in her home, except to the extent of the expenses for interest and taxes, which are deductible without regard to the business use of her home, as allowed in the notice of deficiency. In determining whether petitioner’s home office was her principal place of business, we must examine the various locations in which petitioner conducted her business and ascertain which location was the “focal point” of her business activities. Baie v. Commissioner, 74 T.C. 105, 109 (1980); see Curphey v. Commissioner, 73 T.C. 766, 776 (1980), on appeal (9th Cir., Nov. 24,1980). Although petitioner has established that her home office was helpful in her real estate sales activities, she has failed to persuade us that her home office was her principal place of business. In the ordinary course of the business, petitioner’s first “contact” with clients would be through Walker & Lee’s office, and she also spent 12 to 16 hours per week in the Walker & Lee offices as a means of acquiring new clients. To be sure, we are satisfied that petitioner had some clients whom she had known for a number of years, but we are not convinced that her activities at the Walker & Lee office were not a more significant source of clients. Petitioner’s business card contained Walker & Lee’s address and telephone number as well as the telephone number of petitioner’s residence, but petitioner did not have a telephone listing in her own name. Although clients occasionally came to petitioner’s home, a larger percentage of petitioner’s clients met with her at open houses or elsewhere. In the circumstances, we find that petitioner has failed to carry her burden of proving that her home office was regularly and exclusively used as her principal place of business. We similarly find that petitioner has failed to prove that her" }, { "docid": "23388744", "title": "", "text": "where income is generated. I certainly agree that the word “principal” connotes “ ‘most important,’ ” ante, at 174, but I do not agree that this definition requires courts in every case to resort to a totality-of-the-circumstances analysis when determining whether the taxpayer is entitled to a home office deduction under §280A(c)(l)(A). Rather, I think it is logical to assume that the single location where the taxpayer’s business income is generated — i. e., where he provides goods or services to clients or customers — will be his principal place of business. This focal point standard was first enunciated in Baie v. Commissioner, 74 T. C. 105 (1980), and has been consistently applied by the Tax Court (until the present case) in determining whether a taxpayer’s home office is his principal place of business. Indeed, if one were to glance quickly through the Court’s opinion today, one might think the Court was in fact adopting the focal point test. At two points in its opinion the Court hails the usefulness of the focal point inquiry: It states that the place where goods are delivered or services rendered must be given “great weight in determining the place where the most important functions are performed,” ante, at 175, and that “the point where services are rendered or goods delivered is a principal consideration in most cases,” ante, at 176. In fact, the Court’s discomfort with the focal point test seems to rest on two fallacies — or perhaps one fallacy and a terminological obstinacy. First, the Court rejects the focal point test because “no one test is determinative in every case.” Ante, at 175. But the focal point test, as I interpret it, is not always determinative: Where it provides no single principal place of business, the “totality of the circumstances” approach is invoked. Second, the Court rejects the focal point test because its name has a “metaphorical quality that can be misleading.” Ibid. But rechristening it the “place of sale or service test” — or whatever label the Court would find less confusing — is surely a simple matter. The Commissioner’s" }, { "docid": "23388750", "title": "", "text": "taxpayer a home office deduction under § 280A(c)(l)(A), recognizing that although “preliminary preparation may have been beneficial to the efficient operation of petitioner’s business, both the final packaging for consumption and sales occurred on the premises of the [hot dog stand].” 74 T. C., at 109-110. Thus, the court concluded that the hot dog stand was the “focal point of [the taxpayer’s] activities.” Id., at 109. The Commissioner’s position is not entirely consistent. At one point in his brief he seems to advocate adopting the focal point test: “Since a ‘business’ under the Code must be an activity designed to produce income, the principal place of a ‘business’ should ordinarily refer to the principal place where income is earned. The ‘focal point’ test previously applied by the Tax Court properly encapsulates that principle.” Brief for Petitioner 26, n. 17. At other points in his brief, however, the Commissioner appears to advocate the very test adopted by the Court. See id., at 18, 23-24. Justice Stevens, dissenting. Respondent is self-employed. He pays the ordinary and necessary expenses associated with the operation of his office in McLean, Virginia; it is the only place of business that he maintains. In my opinion the Tax Court and the Court of Appeals correctly concluded that respondent is entitled to an income tax deduction for the cost of maintaining that office. This Court’s contrary conclusion misreads the term “principal place of business” in §280A of the Internal Revenue Code, deviates from Congress’ purpose in enacting that pro vision, and unfairly denies an intended benefit to the growing number of self-employed taxpayers who manage their businesses from a home office. I This case involves an exception to the general rule that “ordinary and necessary” business expenses are deductible. There is no dispute that the expenses at issue fall within that general category. They are questioned only because the office is located within respondent’s residence. If that office were located in any other place—even in someone else’s home—the general rule would apply, and respondent could have deducted the costs of its maintenance. If he had been prosperous enough" }, { "docid": "8071325", "title": "", "text": "of selling products at retail or wholesale, but only if the dwelling unit is the sole fixed location of such trade or business. Respondent maintains that since petitioner did not fall within any of the exceptions set forth in section 280A(c), the general rule of nondeductibility contained in section 280A(a) precludes petitioner from deducting the items at issue. Section 280A was added to the Internal Revenue Code by the Tax Reform Act of 1976 to provide “definitive rules relating to deductions for expenses attributable to the business use of homes.” S. Rept. 94-1236 (1976), 1976-8 C.B. (Vol. 3) 807, 839. Prior to the enactment of section 280A, this Court had allowed a deduction for an office in an employee’s residence on the grounds that the maintenance of such office was “appropriate and helpful” under the circumstances. Congress felt that clear-cut rules governing deductibility were needed because of the administrative burdens which resulted from requiring taxpayers to substantiate the business element of what is normally a personal item (i.e., maintenance of a residence). Additionally, there was the concern that, under the standards adopted by some courts (particularly this Court), those which were otherwise personal expenses were being allowed as deductions. In light of the above legislative background, we reluctantly conclude that petitioner is not entitled to deduct any of the expenses claimed here, as she fails to qualify under any of the enumerated exceptions. We cannot agree with her argument that the portions of her home which were used in connection with operating the Gay Dog constituted her principal place of business. This contention is simply not supported by the facts. It is readily apparent that, for purposes of the exception contained in section 280A(c)(l)(A), the hotdog stand, itself, was petitioner’s principal place of business. Nothing in the legislative history of section 280A or the Commissioner’s regulations furnishes any guidance as to the scope of the “principal place of business” concept in the context of section 280A. We therefore take it that what Congress had in mind was the focal point of a taxpayer’s activities, which, in the case before us," }, { "docid": "18747172", "title": "", "text": "is that “no deduction ... shall be allowed with respect to the use of a dwelling unit which is used by the taxpayer during the taxable year as a residence.” This general rule is, however, subject to an Exception for expense which is allocable to a portion of the dwelling unit that is exclusively used on a regular basis: (1) as the taxpayer’s principal place of business, or (2) as a place which is used by patients, clients or customers in meeting or dealing with the taxpayer. 26 U.S.C. § 280A(c). Further, when an employee maintains a home office, deductions are allowed only if the home office is maintained for the convenience of the employer. Prior to the enactment of § 280A, which specifically addresses the deductibility of home office expenses, 26 U.S.C. § 162 (deduction of ordinary and necessary business expenses), § 212 (deduction of expenses incurred for the production of income) and § 262 (non-deductibility of personal, living or family expenses) governed the deductibility of expenses for a home office. In analyzing the deductibility of these expenses, the Tax Court applied the liberal standard of “appropriate and helpful” to determine whether a home office expenditure was “ordinary and necessary.” See, e.g., Newi v. Commissioner, 28 T.C.M. (CCH) 686 (1969), aff'd, 432 F.2d 998 (2d Cir.1970); cf. Bodzin v. Commissioner, 60 T.C. 820 (1973) rev’d, 509 F.2d 679 (4th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 40, 46 L.Ed.2d 41 (1975); Sharon v. Commissioner, 66 T.C. 515 (1976), aff'd, 591 F.2d 1273 (9th Cir.1978), cert. denied, 442 U.S. 941, 99 S.Ct. 2883, 61 L.Ed.2d 311 (1979). The Commissioner objected to these liberal home office standards applied by the Tax Court. See, e.g., Rev.Rul. 62-180, 1962-2 C.B. 52, requiring the taxpayer to establish that the use of a home office was a condition of employment. The Commissioner therefore petitioned Congress to tighten the standards for home office deductions. Thereafter Congress enacted § 280A to resolve the dispute between the Commissioner and the Tax Court with respect to home office deductions. Green v. CIR, 707 F.2d 404, 407 (9th Cir.1983)." }, { "docid": "8036886", "title": "", "text": "the taxable year as a residence. The pertinent exceptions to this general rule are set forth in section 280A(c)(l), which provides: (c) Exceptions for Certain Business or Rental Use; Limitation on Deductions for Such Use.— (1) Certain business use. — Subsection (a) shall not apply to any item to the extent such item is allocable to a portion of the dwelling unit which is exclusively used on a regular basis— (A) as the taxpayer’s principal place of business, (B) as a place of business which is used by patients, clients, or customers in meeting or dealing with the taxpayer in the normal course of his trade or business, or (C) in the case of a separate structure which is not attached to the dwelling unit, in connection with the taxpayer’s trade or business. In the case of an employee, the preceding sentence shall apply only if the exclusive use referred to in the preceding sentence is for the convenience of his employer. The Commissioner urges that Mr. Hynes’ principal place of business was at the station where he performed his duties as a newsman, and that the principal place of business of Mrs. Hynes was at her real estate office in Chatham. Therefore, he concludes that the petitioners are not entitled to a deduction under section 280A for any part of the expenses attributable to maintaining such office during 1976, and the petitioners have the burden of proving otherwise. Rule 142(a), Tax Court Rules of Practice and Procedure; Welch v. Helvering, 290 U.S. 111 (1933). We must agree with the Commissioner’s position. In our recent decision in Curphey v. Commissioner, 73 T.C. 766, 776 (1980), we stated that “section 280A(c)(l)(A) requires a determination as to whether, with respect to a particular business conducted by a taxpayer, the home office was his principal place for conducting that business.” Section 280A(c) is also clear that, in the case of an employee, the home office must be for the convenience of the employer. It is readily apparent from the facts in this case that Mr. Hynes’ principal place of business as a newsman" }, { "docid": "18747170", "title": "", "text": "PER CURIAM. Taxpayers John and Sally Meiers appeal from a decision of the United States Tax Court sustaining the Commissioner’s determination of deficiencies related to deductions taken for maintaining an office in their residence. This court has jurisdiction under 26 U.S.C. § 7482. We reverse. I. The taxpayers are the sole shareholders of the Appleton Laundry Corporation which operates a self-service laundromat in Appleton, Wisconsin. Sally Meiers managed the laundromat and retained five part-time employees to assist the customers, make change, sell laundry products, launder customers’ clothes and clean the laundromat. Mrs. Meiers’ duties as manager included drafting the work schedule for employees, collecting money from the machines and filling the coin changer, assisting customers, performing bookkeeping and other managerial tasks. On average, Mrs. Meiers spent an hour a day at the laundromat and two hours a day in an office in her home drafting work schedules for employees and doing the laundromat’s bookkeeping. The “home office” consisted of a separate room in the taxpayers’ home and contained a desk, filing cabinet, safe, change counter and sofa. It is undisputed that this separate' room was used exclusively for administrative work on behalf of the laundry. It is also undisputed that the taxpayers made a legitimate business decision not to make office space in the laundromat. II. The sole issue in this case is whether the taxpayers are entitled to deductions arising from the maintenance of an office in their home. The Tax Court disallowed the “home office” deductions because it concluded that the “focal point” of the taxpayers’ laundromat business was at the laundry. See, e.g., Baie v. Commissioner, 74 T.C. 105 (1980). The taxpayers contend that the Tax Court erred in basing its decision upon the “focal point” of the laundromat business rather than upon the principal situs of Mrs. Meiers’ activities in performing her responsibilities as an employee of the laundromat. Taxpayers contend that the principal situs or focal point of Mrs. Meiers’ activities as an employee of the laundromat is her home office. The general rule contained in 26 U.S.C. § 280A, which controls home office deductions," }, { "docid": "18747175", "title": "", "text": "hot dog stand, not the home, was the focal point of her activities. Since Baie, the Tax Court has consistently applied the focal point test in evaluating the deductibility of home office expenses. See, e.g., Moskovit v. Commissioner, 44 T.C.M. (CCH) 859 (1982) (focal point of teacher is school); Lopkoffv. Commissioner, 45 T.C.M. (CCH) 256, 258 (1982) (focal point of Veterans Administration administrative assistant is hospital); Trussel v. Commissioner, 45 T.C.M. (CCH) 190, 191— 92 (1982) (focal point of judge is the courtroom). The Tax Court has held that the number of hours spent on various activities and in different locations is not controlling in determining the taxpayer’s focal point. See Green v. Commissioner, 78 T.C. 428, 433 (1982), rev’d, 707 F.2d 404 (9th Cir. 1983); Jackson v. Commissioner, 76 T.C. 696, 700 (1981). Rather, the Tax Court generally identifies the taxpayer’s focal point as the place where goods or services are provided to customers or clients or where income is produced. In Drucker v. Commissioner, 715 F.2d 67 (2d Cir.1983), the Second Circuit, in reversing the Tax Court, cast serious doubt on that tribunal’s application of the focal point test. Drucker, a concert violinist in the New York Metropolitan Opera, used a room in his apartment exclusively as a private studio for practice thirty hours a week. The Tax Court held that the focal point of Drucker’s activities as an employee was the performance hall, not his apartment, and denied the deduction. The Second Circuit reversed in an opinion which it apparently regarded at the time as sui generis (“It is indeed a ‘strange way to make a living,’ and we believe that the Tax Court failed to come to grips [sic] with that fact.” 715 F.2d at 69). The Second Circuit stressed the apparently unusual facts: ... [W]e find this the rare situation in which an employee’s principal place of business is not that of his employer. Both in time and in importance, home practice was the ‘focal point’ of the appellant musicians’ employment-related activities. See Wisconsin Psychiatric Servs., Ltd. v. CIR, 76 T.C. 839, 848-49 & n." }, { "docid": "23388728", "title": "", "text": "maintain ‘legitimate’ home offices, even if the taxpayer does not spend a majority of his time in the office.” 935 F. 2d, at 55. The court concluded that the Tax Court’s test would lead to identification of the “true headquarters of the business.” Ibid. Like the dissenters in the Tax Court, Judge Phillips in his dissent argued that the plain language of § 280A(c)(l)(A) requires a comparative analysis of the places of business to assess which one is principal, an analysis that was not undertaken by the majority. Ibid. Although other Courts of Appeals have criticized the focal point test, their approaches for determining the principal place of business differ in significant ways from the approach employed by the Court of Appeals in this case, see Pomarantz v. Commissioner, 867 F. 2d 495, 497 (CA9 1988); Meiers v. Commissioner, supra, at 79; Weissman v. Commissioner, supra, at 514-516; Drucker v. Commissioner, supra, at 69. Those other courts undertake a comparative analysis of the functions performed at each location. We granted certiorari to resolve the conflict. 503 U. S. 935 (1992). a <$ Section 162(a) of the Internal Revenue Code allows a taxpayer to deduct “all the ordinary and necessary expenses paid or incurred ... in carrying on any trade or business.” 26 U. S. C. § 162(a). That provision is qualified, however, by various limitations, including one that prohibits otherwise allowable deductions “with respect to the use of a dwelling unit which is used by the taxpayer ... as a residence.” §280A(a). Taxpayers may nonetheless deduct expenses attributable to the business use of their homes if they qualify for one or more of the statute’s exceptions to this disallowance. The exception at issue in this case is contained in § 280A(c)(l): “Subsection (a) shall not apply to any item to the extent such item is allocable to a portion of the dwelling unit which is exclusively used on a regular basis— “(A) [as] the principal place of business for any trade, or business of the taxpayer[,] “(B) as a place of business which is used by patients, clients, or customers" }, { "docid": "10912839", "title": "", "text": "taxable year as a residence.” Subsection (c) of section 280A lists exceptions to the general rule. The exceptions relevant to the parties’ arguments are set forth below: SEC. 280A(c). Exceptions for Certain Business or Rental Use; Limitation on Deductions for Such Use. (1) Certain business use. — Subsection (a) shall not apply to any item to the extent such item is allocable to a portion of the dwelling unit which is exclusively used on a regular basis— (A) [as] the principal place of business for any trade or business of the taxpayer, (B) as a place of business which is used by patients, clients, or customers in meeting or dealing with the taxpayer in the normal course of his trade or business, or (C) in the case of a separate structure which is not attached to the dwelling unit, in connection with the taxpayer’s trade or business. In the case of an employee, the preceding sentence shall apply only if the exclusive use referred to in the preceding sentence is for the convenience of his employer. * % * * * * * (3) Rental use. — Subsection (a) shall not apply to any item which is attributable to the rental of the dwelling unit or portion thereof (determined after the application of subsection (e)). Subsection (e) requires a taxpayer who uses the dwelling unit for personal purposes during the taxable year, as a residence or otherwise, to limit his deductions to the amount determined after applying the percentage obtained by comparing the number of days the unit (or portion thereof) is rented to the total number of days the unit (or portion thereof) is used. Bolton v. Commissioner, 77 T.C. 104 (1981), affd. 694 F.2d 556 (9th Cir. 1982). Paragraph (5) of section 280A(c) further limits the deduction authorized in case of rental use of a residence to the excess of the gross rental income over the portion of the expenses otherwise allowable (such as mortgage interest and taxes) that are attributable to the rental use. In other words, any net rental loss cannot be offset against unrelated income." }, { "docid": "23388726", "title": "", "text": "of business, the so-called “focal point test,” the Tax Court abandoned that test, citing criticism by two Courts of Appeals. Id., at 24-25 (noting Meiers v. Commissioner, 782 F. 2d 75 (CA7 1986); Weissman v. Commissioner, 751 F. 2d 512 (CA2 1984); and Drucker v. Commissioner, 715 F. 2d 67 (CA2 1983)). Under a new test, later summarized and adopted by the Court of Appeals, the Tax Court allowed the deduction. The dissenting opinions criticized the majority for failing to undertake a comparative analysis of Soliman’s places of business to establish which one was the principal place. 94 T. C., at 33, 35. The Commissioner appealed to the Court of Appeals for the Fourth Circuit. A divided panel of that court affirmed. 935 F. 2d 52 (1991). It adopted the test used in the Tax Court and explained it as follows: “[The] test. . . provides that where management or administrative activities are essential to the taxpayer’s trade or business and the only available office space is in the taxpayer’s home, the ‘home office’ can be his ‘principal place of business,’ with the existence of the following factors weighing heavily in favor of a finding that the taxpayer’s ‘home office’ is his ‘principal place of business:’ (1) the office in the home is essential to the taxpayer’s business; (2) he spends a substantial amount of time there; and (3) there is no other location available for performance of the office functions of the business.” Id., at 54. For further support, the Court of Appeals relied upon a proposed IRS regulation related to home office deductions for salespersons. Under the proposed regulation, salespersons would be entitled to home office deductions “even though they spend most of their time on the road as long as they spend ‘a substantial amount of time on paperwork at home.’” Ibid, (quoting proposed Treas. Reg. § 1.280A-2(b)(3), 45 Fed. Reg. 52399 (1980), as amended, 48 Fed. Reg. 33320 (1983)). While recognizing that the proposed regulation was not binding on it, the court suggested that it “evince[d] a policy to allow ‘home office’ deductions for taxpayers who" }, { "docid": "18747181", "title": "", "text": "We think that the application of these factors to home office deductions will carry out the purpose of Congress to prevent taxpayers from converting non-deductible personal expenses into deductible business expenses while ensuring, that taxpayers retain their entitlement to deduct necessary business expenses. In applying these standards to the present case, we conclude that the Tax Court erred in denying taxpayers a deduction for a home office. Mrs. Meiers spent most of her time in the home office and performed what may be her most important functions as a manager there. The Meiers made a legitimate business decision not to create office space at the laundromat. Further, the Commissioner concedes that this is not a situation where the taxpayers are attempting to convert non-deductible personal living expenses into deductible business expenses. Accordingly, we reverse the decision of the Tax Court denying the taxpayers a deduction for their home office expenses. Reversed. . 26 U.S.C. § 280A provides in pertinent part: § 280A. Disallowance of certain expenses in connection with business use of home, rental of vacation homes, etc. (a) General rule. — Except as otherwise provided in this section, in the case of a taxpayer who is an individual or an S corporation, no deduction otherwise allowable under this chapter shall be allowed with respect to the use of a dwelling unit which is used by the taxpayer during the taxable year as a residence. (b) Exception for interest, taxes, casualty losses, etc. — Subsection (a) shall not apply to any deduction allowable to the taxpayer without regard to its connection with his trade or business (or with his income-producing activity)- (c) Exceptions for certain business or rental use; limitation on deductions for such use.— (1) Certain business use. — Subsection (a) shall not apply to any item to the extent such item is allocable to a portion of the dwelling unit which is exclusively used on a regular basis— (A) [as] the principal place of business for any trade or business of the taxpayer. (B) as a place of business which is used by patients, clients, or customers in" }, { "docid": "12604412", "title": "", "text": "or business, or (C) in the case of a separate structure which is not attached to the dwelling unit, in connection with the taxpayer’s trade or business. In the case of an employee, the preceding sentence shall apply only if the exclusive use referred to in the preceding sentence is for the convenience of his employer. Petitioner contends that her home office was her principal place of business and that it was used by customers in meeting with petitioner in the normal course of her business. The Government argues that the offices of Walker & Lee were petitioner’s principal place of business; it does not claim that petitioner was an employee of Walker & Lee, thereby requiring that her office be maintained for the convenience of her employer. The Government further contends that petitioner’s home office was only occasionally used for meeting clients, rather than being used to meet clients “on a regular basis,” and was not used “exclusively” for meeting clients, as required by the statute. We find that petitioner has failed to establish that her home office was exclusively used on a regular basis as her principal place of business, or that it was regularly used to meet clients in the normal course of her trade or business. Petitioner is thus not entitled to deduct the expenses of maintaining an office in her home, except to the extent of the expenses for interest and taxes, which are deductible without regard to the business use of her home, as allowed in the notice of deficiency. In determining whether petitioner’s home office was her principal place of business, we must examine the various locations in which petitioner conducted her business and ascertain which location was the “focal point” of her business activities. Baie v. Commissioner, 74 T.C. 105, 109 (1980); see Curphey v. Commissioner, 73 T.C. 766, 776 (1980), on appeal (9th Cir., Nov. 24,1980). Although petitioner has established that her home office was helpful in her real estate sales activities, she has failed to persuade us that her home office was her principal place of business. In the ordinary" }, { "docid": "18747174", "title": "", "text": "Congress wished to provide “definitive rules relating to deductions for expenses attributable to the business use of homes,” Sen.Rep. 94-1236 (1976), reprinted in 1976-3 C.B. 807, 839 (Vol. Ill), and to preclude the deduction of “non-deductible personal, living and family expenses” as business expenses. Section 280A therefore imposes a heavy burden upon taxpayers to establish that their “home office” expenses meet its stringent standards for deductibility. In evaluating these claimed expenses, the Tax Court has established a “focal point” test to identify the taxpayer’s principal place of business as required by statute. In Baie, the taxpayer operated a hot dog stand and, due to limited space, prepared food for the stand in her kitchen. Baie also used a second bedroom in her house for bookkeeping and recordkeeping related to the stand. Finding no guidance in the legislative history of § 280A for defining the “principal place of business,” the Tax Court settled on the focal point test. The Court concluded that Baie was not entitled to a deduction for a home of fice because the hot dog stand, not the home, was the focal point of her activities. Since Baie, the Tax Court has consistently applied the focal point test in evaluating the deductibility of home office expenses. See, e.g., Moskovit v. Commissioner, 44 T.C.M. (CCH) 859 (1982) (focal point of teacher is school); Lopkoffv. Commissioner, 45 T.C.M. (CCH) 256, 258 (1982) (focal point of Veterans Administration administrative assistant is hospital); Trussel v. Commissioner, 45 T.C.M. (CCH) 190, 191— 92 (1982) (focal point of judge is the courtroom). The Tax Court has held that the number of hours spent on various activities and in different locations is not controlling in determining the taxpayer’s focal point. See Green v. Commissioner, 78 T.C. 428, 433 (1982), rev’d, 707 F.2d 404 (9th Cir. 1983); Jackson v. Commissioner, 76 T.C. 696, 700 (1981). Rather, the Tax Court generally identifies the taxpayer’s focal point as the place where goods or services are provided to customers or clients or where income is produced. In Drucker v. Commissioner, 715 F.2d 67 (2d Cir.1983), the Second Circuit, in" }, { "docid": "18747173", "title": "", "text": "deductibility of these expenses, the Tax Court applied the liberal standard of “appropriate and helpful” to determine whether a home office expenditure was “ordinary and necessary.” See, e.g., Newi v. Commissioner, 28 T.C.M. (CCH) 686 (1969), aff'd, 432 F.2d 998 (2d Cir.1970); cf. Bodzin v. Commissioner, 60 T.C. 820 (1973) rev’d, 509 F.2d 679 (4th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 40, 46 L.Ed.2d 41 (1975); Sharon v. Commissioner, 66 T.C. 515 (1976), aff'd, 591 F.2d 1273 (9th Cir.1978), cert. denied, 442 U.S. 941, 99 S.Ct. 2883, 61 L.Ed.2d 311 (1979). The Commissioner objected to these liberal home office standards applied by the Tax Court. See, e.g., Rev.Rul. 62-180, 1962-2 C.B. 52, requiring the taxpayer to establish that the use of a home office was a condition of employment. The Commissioner therefore petitioned Congress to tighten the standards for home office deductions. Thereafter Congress enacted § 280A to resolve the dispute between the Commissioner and the Tax Court with respect to home office deductions. Green v. CIR, 707 F.2d 404, 407 (9th Cir.1983). Congress wished to provide “definitive rules relating to deductions for expenses attributable to the business use of homes,” Sen.Rep. 94-1236 (1976), reprinted in 1976-3 C.B. 807, 839 (Vol. Ill), and to preclude the deduction of “non-deductible personal, living and family expenses” as business expenses. Section 280A therefore imposes a heavy burden upon taxpayers to establish that their “home office” expenses meet its stringent standards for deductibility. In evaluating these claimed expenses, the Tax Court has established a “focal point” test to identify the taxpayer’s principal place of business as required by statute. In Baie, the taxpayer operated a hot dog stand and, due to limited space, prepared food for the stand in her kitchen. Baie also used a second bedroom in her house for bookkeeping and recordkeeping related to the stand. Finding no guidance in the legislative history of § 280A for defining the “principal place of business,” the Tax Court settled on the focal point test. The Court concluded that Baie was not entitled to a deduction for a home of fice because the" } ]

[ { "docid": "22056819", "title": "", "text": "extent that Mr. DeWalt alleges a procedural due process claim, the district court was correct to dismiss the claim. Mr. DeWalt alleges more than a procedural due process claim, however. He also alleges a Fourteenth Amendment equal protection claim and a First Amendment retaliation claim, to which the liberty/property interest requirement for procedural due process claims does not apply. See Sandin, 515 U.S. at 487 n. 11, 115 S.Ct. 2293; Higgason v. Farley, 83 F.3d 807, 810 (7th Cir.1996) (per curiam). For example, if prison officials were to allocate T.V. time, visitation privileges, prison jobs, or any of the other privileges prisoners enjoy, on an otherwise illegal or discriminatory basis, their actions would be unconstitutional even though such privileges do not constitute liberty or property interests. See, e.g., Babcock v. White, 102 F.3d 267, 274-75 (7th Cir.1996) (retaliatory transfer); Black v. Lane, 824 F.2d 561, 562 (7th Cir.1987) (racial discrimination with respect to prison job); Bentley v. Beck, 625 F.2d 70, 70-71 (5th Cir. Unit B 1980) (per curiam) (same). Accordingly, the fact that Mr. DeWalt does not have a liberty or property interest in his former prison job does not foreclose his equal protection and retaliation claims arising from the loss of that job. 2. Thus, we are faced squarely with the issue whether Mr. DeWalt may bring his § 1983 action (based on his equal protection and retaliation claims) when the underlying disciplinary sanction has not been overturned or invalidated. Today, we join the Second Circuit and hold that a prisoner may bring a § 1983 claim “challenging the conditions of [his] confinement where [he] is unable to challenge the conditions through a petition for federal habeas corpus.” Jenkins v. Haubert, 179 F.3d 19, 21 (2d Cir.1999). a. Statutory framework Because Mr. DeWalt’s claim involves both § 1983 and the federal habeas statute, we begin our analysis by looking at both statutes. Section 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the" } ]

[ { "docid": "23676904", "title": "", "text": "rights whose deprivation has not caused actual, provable injury,” Memphis Community School Dist. v. Stachura, 477 U.S. 299, 308 n. 11, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986) (citing Carey, 435 U.S. at 266, 98 S.Ct. 1042), and because the statute does not reveal any attempt to alter that rule with respect to this class of cases, we now hold that section 1997e(e) does not bar recovery of nominal damages for violations of prisoners’ rights. See Rowe v. Shake, 196 F.3d 778, 781-82 (7th Cir.1999) (holding that prisoner’s complaint for nominal damages for First Amendment violation was not barred by § 1997e(e)). Moreover, the rule seems to be that an award of nominal damages is mandatory upon a finding of a constitutional violation, as the jury found here. See Carey v. Piphus, 435 U.S. 247, 267, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); Farrar v. Hobby, 506 U.S. 103, 112, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); Risdal v. Halford, 209 F.3d 1071 (8th Cir.2000) (plain error to give the jury discretion not to award nominal damages on a finding of a violation of free speech rights); Norwood v. Bain, 143 F.3d 843, 856 (4th Cir.1998), aff'd in pertinent part en banc, 166 F.3d 243 (4th Cir.), cert. denied, 527 U.S. 1005, 119 S.Ct. 2342, 144 L.Ed.2d 239 (1999). B We must now consider issues concerning the award of punitive damages. Because the jury was specifically instructed to consider the amount of actual damages in determining the amount of punitive damages to be awarded, 1(B) Aplt.App. 405, and we have determined that the award of actual damages must be vacated because of lack of proof of physical injury, we hold that the punitive damages award must also be set aside; otherwise the punitive award will rest on impermissible consideration of the improper actual damage award. We must next decide whether punitive damages may be reconsidered on remand. Defendant contends that the evidence was insufficient to support any award of punitive damages, and alternatively that the determination of liability for punitive damages was against the weight of the evidence. We conclude," }, { "docid": "14787339", "title": "", "text": "monetary damages because it was “too speculative” to determine whether Franklin would have pursued successfully an appeal if he had received a written statement. Franklin contends that he could have appealed successfully and concludes that his confinement in disciplinary segregation was a direct result of the procedural violation. It follows, Franklin asserts, that an award of compensatory damages for the due process violation is proper. Should this court deem compensatory damages inappropriate, however, Franklin argues in the alternative that an award of nominal damages is mandated by Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). A. Before addressing the issue of damages, we must find that Franklin’s procedural due process rights were violated within the meaning of the Fourteenth Amendment. The first step in that inquiry is to determine whether Franklin’s interest in remaining free from the restrictive confinement of disciplinary segregation is a protected life, liberty or property interest within the meaning of the Due Process Clause of the Fourteenth Amendment. Meachum v. Fano, 427 U.S. 215, 223-24, 96 S.Ct. 2532, 2537-38, 49 L.Ed.2d 451 (1976); Walker v. Hughes, 558 F.2d 1247, 1250 (6th Cir.1977). The nature of the claimed interest here is a liberty interest in not being placed in disciplinary segregation, as opposed to re maining in the general prison population. The Due Process Clause does not, in and of itself, create a liberty interest in being confined to a general population cell. Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868, 74 L.Ed.2d 675 (1983); McCrae v. Hankins, 720 F.2d 863, 866 (5th Cir.1983). A state may create a protected liberty interest, however, through promulgation of statutes, rules, regulations or policy statements. See, e.g., Hewitt, 459 U.S. at 472, 103 S.Ct. at 871 (state-created liberty interest in not being placed in administrative segregation absent substantive predicates); Wolff v. McDonnell, 418 U.S. at 557, 94 S.Ct. at 2975 (state-created right to good-time credits and protected interest in not being deprived of those credits without minimum procedures); Mayes v. Trammell, 751 F.2d 175, 179 (6th Cir.1984) (policy statements created a liberty" }, { "docid": "23563694", "title": "", "text": "forecloses an action for nominal or punitive damages for an Eighth Amendment violation involving no physical injury. Just as a “deprivation of First Amendment rights standing alone is a cognizable injury,” Rowe, 196 F.3d at 781, so too is the violation of a person’s right to be free from cruel and unusual punishment, see Harper v. Showers, 174 F.3d 716, 719 (5th Cir.1999) (claim of Eighth Amendment violation “is distinct from” any claim to entitlement for compensation for resulting mental or emotional damages). Although § 1997e(e) would bar recovery of compensatory damages “for” mental and emotional injuries suffered, the statute is inapplicable to awards of nominal or punitive damages for the Eighth Amendment violation itself. This conclusion readily follows from the fact that nominal damages “are not compensation for loss or injury, but rather recognition of a violation of rights.” Redding v. Fairman, 717 F.2d 1105, 1119 (7th Cir.1983); see Sahagian v. Dickey, 827 F.2d 90, 100 (7th Cir.1987). The Attorney General, relying on an isolated statement in Babcock, 102 F.3d at 271, argues that an award of nominal damages for Eighth Amendment violations would be inappropriate because the constitutional guarantee against cruel and unusual punishment, unlike the right to procedural due process, is not an “absolute” right. Cf. Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (because right to procedural due process is “absolute,” nominal damages are available for denial of right even absent actual injury). But Babcock’s comment about nominal damages was dicta because the appellant never argued that their availability could salvage his claim, see Babcock, 102 F.3d at 273, and because he did not the panel had no occasion to explore our prior opinions on the subject. We long ago decided that, at a minimum, a plaintiff who proves a constitutional violation is entitled to nominal damages. See Hessel v. O’Hearn, 977 F.2d 299, 302 (7th Cir.1992); Ustrak v. Fairman, 781 F.2d 573, 578 (7th Cir.1986). In particular, we have approved the award of nominal damages for Eighth Amendment violations when prisoners could not establish actual compensable harm. See Madison" }, { "docid": "23676903", "title": "", "text": "of Corrections, 165 F.3d 803, 808 n. 6 (10th Cir.1999) (citing Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978)). After some vacillation on this issue, the government has taken the position that nominal damages can be recovered under the statute. Defendant does not address the issue. As the Supreme Court has noted: Common-law courts traditionally have vindicated deprivations of certain “absolute” rights that are not shown to have caused actual injury through the award of a nominal sum of money. By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed; but at the same time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivations of rights. Carey v. Piphus, 435 U.S. at 266, 98 S.Ct. 1042. Because “nominal damages ... are the appropriate means of ‘vindicating’ rights whose deprivation has not caused actual, provable injury,” Memphis Community School Dist. v. Stachura, 477 U.S. 299, 308 n. 11, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986) (citing Carey, 435 U.S. at 266, 98 S.Ct. 1042), and because the statute does not reveal any attempt to alter that rule with respect to this class of cases, we now hold that section 1997e(e) does not bar recovery of nominal damages for violations of prisoners’ rights. See Rowe v. Shake, 196 F.3d 778, 781-82 (7th Cir.1999) (holding that prisoner’s complaint for nominal damages for First Amendment violation was not barred by § 1997e(e)). Moreover, the rule seems to be that an award of nominal damages is mandatory upon a finding of a constitutional violation, as the jury found here. See Carey v. Piphus, 435 U.S. 247, 267, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); Farrar v. Hobby, 506 U.S. 103, 112, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992); Risdal v. Halford, 209 F.3d 1071 (8th Cir.2000) (plain error to give the jury discretion not to award" }, { "docid": "23638915", "title": "", "text": "mandatory departmental rules for conducting his discipline hearing and administrative review. However, before wrestling with the contours and nuances of the process allegedly rendered or withheld, we must first determine whether any process was in fact constitutionally due. The Due Process Clause of the Fourteenth Amendment provides: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” U.S. CONST, amend. XIV, § 1. Accordingly, the procedural protections of the Due Process Clause will only be triggered if state action implicates a constitutionally protected interest in life, liberty, or property. Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (noting that - “whether due process requirements apply in the first place” depends on whether an “interest is within the Fourteenth Amendment’s protection of liberty and property”); see also Carey v. Piphus, 435 U.S. 247, 259, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (“Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.”). Thus it follows that a plaintiff cannot under Section 1983 complain of procedural due process violations unless the state has first deprived him or her of such a constitutionally protected interest. Kentucky Dept. of Corr. v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (“We examine procedural due process questions in two steps: the first asks whether there exists a liberty or property interest which has been interfered with by the State, the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.” (citations omitted)); Williams v. Ramos, 71 F.3d 1246, 1248-49 (7th Cir.1995) (“When a plaintiff brings an action under § 1983 for procedural due process violations, he must show that the state deprived him of a constitutionally protected interest in ‘life, liberty, or property’ without due process of law.”) (citing Zinermon v. Burch, 494 U.S. 113, 125-26, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990)). Here, the alleged deprivation to Lekas was his placement in disciplinary segregation-—-purportedly in contravention of" }, { "docid": "4436255", "title": "", "text": "inmate complaints. We turn now to Bates’ and Brown’s contention that the district court should have granted them qualified immunity from liability in this civil rights action. We reject this argument and affirm the decision below. The availability of qualified immunity is dependent upon a showing of good faith by state officials. Gomez v. Toledo, 446 U.S. 635, 639-40, 100 S.Ct. 1920, 1923-24, 64 L.Ed.2d 572 (1980). Under Procunier v. Navarette, 434 U.S. 555, 562-63, 98 S.Ct. 855, 859-60, 55 L.Ed.2d 24 (1978), prison officials like Bates and Brown can be liable for damages only if the constitutional right they violated was “clearly established at the time of the violation.” In the present case, the magistrate correctly observed in his report that by December, 1978, the constitutional principles of Pell v. Procunier, supra, had been well settled for over four years. Furthermore, earlier in 1978, officials of the Ohio Department of Rehabilitation and Correction had been forbidden to initiate disciplinary proceedings merely because an inmate could not substantiate a grievance. Taylor v. Perini, 455 F.Supp. 1241 (N.D.Ohio 1978). The district court’s order in Taylor had been codified in the Ohio Administrative Code, Regulation 5120-9-31, effective February 20,1978. These circumstances, in our view, gave the court below an ample basis for denying Bates and Brown the defense of qualified immunity. Inasmuch as Bates and Brown were properly held liable for violating Wolfel’s constitutional rights, the district court’s award of nominal damages should be affirmed. See Carey v. Piphus, 435 U.S. 247, 267, 98 S.Ct. 1042, 1054, 55 L.Ed.2d 252 (1978); Thompson v. Burke, 556 F.2d 231, 240 (3d Cir.1977). Finally, we uphold the district court’s refusal to assess punitive damages against Bates and Brown. Although punitive damages are, in theory, available to plaintiffs in civil rights actions, their imposition has generally been limited to cases involving egregious conduct or a showing of willfulness or malice on the part of the defendant. See Carey v. Piphus, 435 U.S. at 257, n. 11, 98 S.Ct. at 1049, n. 11; Stengel v. Belcher, 522 F.2d 438, 444 (6th Cir.1975), cert. dismissed, 429 U.S. 118," }, { "docid": "2339088", "title": "", "text": "of the alleged infraction by the Elgin staff, the impact of the legislative amendments was sufficiently clear when enacted to place the continuing existence of the liberty interest in doubt. Count flT alleges that Barichello has a liberty interest under 405 ILCS 5/2-100(b), which states \"[a] person with a known or suspected mental illness or developmental disabffity shall not be denied mental health or developmental services because of criminal record unrelated to present dangerousness.\" Citing Hewitt v. Helms, 459 U.S. 460, 471-472, 103 S.Ct. 864, 871-872, 74 L.Ed.2d 675 (1983), Barichello contends that the use of \"shall\" in the statute creates a liberty interest. It is no longer clear, however, that the presence of certain imperative words is sufficient to create a liberty interest. See Sandin v. Conner, - U.S. , -, 115 S.Ct. 2293, 2299, 132 L.Ed.2d 418 (replacing Hewitt test with an examination of the \"nature of the deprivation\"); see also Whitford v. Boglino, 63 F.3d 527, 531, n. 4 (7th Cir.1995) (suggesting that Sandin test may be limited to prisoners). Even looking at the “explicitly mandatory language,” the statute lacks the “specified substantive predicates to limit discretion” necessary to create a liberty interest. See Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 468, 109 S.Ct. 1904, 1910, 104 L.Ed.2d 506 (1989) (internal punctuation omitted). The final constitutional claim is that the elimination of the pass program constituted punishment without an adjudication of guilt, in violation of Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). We do not think that it was clearly established in 1990 that elimination of the pass program would constitute punishment. See Shelby County Jail Inmates v. Westlake, 798 F.2d 1085, 1089 (7th Cir.1986) (reasonable restrictions- on outdoor recreation do not constitute punishment). Barichello does not argue that elimination of the passes has traditionally been regarded as punishment, or that it served a punitive purpose. See Bell, at 537-538, 99 S.Ct. at 1873-1874, quoting Kennedy v. Mendozar-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963). Similarly, Barichello does not attribute a punitive scienter to" }, { "docid": "22762364", "title": "", "text": "that § 1997e(e) does not bar nominal damages, which he claims to have sought. Nominal damages are appropriate if a plaintiff establishes a violation of a fundamental constitutional right, even if he cannot prove actual injury sufficient to entitle him to compensatory damages. Carey v. Piphus, 435 U.S. 247, 255, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). Nominal damages are available for Fourth Amendment violations. See Slicker v. Jackson, 215 F.3d 1225, 1227 (11th Cir.2000) (approving of nominal damages award in Fourth Amendment excessive force claim). Relying on the plain text of the statute, the Second, Third, Seventh, Ninth, and Tenth Circuits have interpreted § 1997e(e) not to preclude a prisoner from seeking nominal damages. See Calhoun v. DeTella, 319 F.3d 936, 941 (7th Cir.2003); Oliver v. Keller, 289 F.3d 623, 630 (9th Cir. 2002); Thompson v. Carter, 284 F.3d 411, 418 (2d Cir.2002); Searles v. Van Bebber, 251 F.3d 869, 878-79 (10th Cir.2001); Allah v. Al-Hafeez, 226 F.3d 247, 252 (3d Cir.2000). The district court dismissed Hughes’s complaint sua sponte before service of process. Thus, the issue of whether § 1997e(e) precludes a prisoner from seeking nominal damages has not been presented in any way to the district court, and the district court did not consider whether Hughes’s complaint could be liberally construed to request nominal damages. See Leal v. Ga. Dep’t of Corrections, 254 F.3d 1276, 1280 (11th Cir.2001) (per curiam) (vacating the district court’s judgment and remanding to allow that court to consider the legal question in the first instance). Thus this claim should be considered by the district court in the first instance. IV. Deprivation of Property Finally, the district court dismissed Hughes’s deprivation-of-property claims under the Fourteenth Amendment on the grounds that they were filed outside of Alabama’s two-year statute of limitations applicable to § 1983 actions and were therefore frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). To dismiss a prisoner’s complaint as time-barred prior to service, it must “appear beyond a doubt from the complaint itself that [the prisoner] can prove no set of facts which would avoid a statute of limitations bar.” Leal, 254" }, { "docid": "21426347", "title": "", "text": "turns on whether he had a constitutionally protected liberty interest in avoiding placement in TLU. See Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454, 459-60, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989); Gillis v. Litscher, 468 F.3d 488, 491-92 (7th Cir.2006). The Constitution itself does not create an interest in avoiding transfer within a correctional facility. See Wilkinson, 545 U.S. at 222, 125 S.Ct. 2384; Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Nevertheless, in San-din the Supreme Court determined that the Fourteenth Amendment provides to inmates a liberty interest in avoiding placement in more restrictive conditions, such as segregation, when those conditions pose an atypical and significant hardship when compared to the ordinary incidents of prison life. See 515 U.S. at 484, 115 S.Ct. 2293. However, since the Court decided Sandin, we have repeatedly determined that even extremely harsh prison conditions may not be so “atypical” as to create the liberty interest the Court contemplated. See, e.g., Lekas v. Briley, 405 F.3d 602, 609 (7th Cir.2005); Thomas v. Ramos, 130 F.3d 754, 760-62 (7th Cir.1998); Wagner v. Hanks, 128 F.3d 1173, 1175-76 (7th Cir.1997). To that end, we have concluded that inmates have no liberty interest in avoiding transfer to discretionary segregation — that is, segregation imposed for administrative, protective, or investigative purposes. See Lekas, 405 F.3d at 608-09 & 608 n. 4 (“[R]eassignment from the general population to discretionary segregation does not constitute a deprivation of a liberty interest.”); Crowder v. True, 74 F.3d 812, 815 (7th Cir.1996) (holding that placement of inmate in non-disciplinary segregation for three months did not create liberty interest). Indeed, there is nothing “atypical” about discretionary segregation; discretionary segregation is instead an “ordinary incident of prison life” that inmates should expect to experience during their time in prison. See Lekas, 405 F.3d at 608-09; Wagner v. Hanks, 128 F.3d 1173, 1176 (7th Cir.1997) (“Even a prisoner who had committed a white-collar crime and had been assigned to the lowest-security prison in the state’s system might find himself in segregation for a nondisciplinary reason.”); Meriwether v. Faulkner," }, { "docid": "22175853", "title": "", "text": "rights. A plaintiff may recover nominal as well as punitive damages even if a violation of his civil rights causes no actual injury. Farrar v. Cain, 756 F.2d 1148, 1152 (5th Cir.1985); Ustrak v. Fairman, 781 F.2d 573, 581 (7th Cir. 1986). See also Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042,1054, 55 L.Ed.2d 252, 266 (1978); Ganey v. Edwards, 759 F.2d 337, 339 (4th Cir.1985); Madison County Jail Inmates v. Thompson, 773 F.2d 834, 844 (7th Cir.1985). Because Green’s complaints alleged violations of his constitutional rights, for which if proved he could receive at least nominal damages, he presented the district court with a case or controversy sufficient to invoke the court’s jurisdiction. 3. Green’s Specific Claims Boiling down the complaints in these record volumes, we arrive at seven specific claims which deserve discussion, a. Green alleged that the defendants had denied him a reasonable opportunity to challenge his assignment to administrative segregation. The trial court dismissed this claim as not being one for which relief could be granted, citing Young v. Wainwright, 449 F.2d 338, 339 (5th Cir.1971) (“classification of inmates is a matter of prison administration and management with which federal courts are reluctant to inter fere except in extreme circumstances”), and Jones v. United States, 534 F.2d 53, 54 (5th Cir.1976), cert. denied, 429 U.S. 978, 97 S.Ct. 487, 50 L.Ed.2d 586 (1976) (prison officials have broad discretion, free from judicial interference, in classifying prisoners in terms of their custodial status). We agree with the district court that both Young and Jones give prison officials broad discretion in classifying inmates. But when regulations governing the administration of state prisons create a liberty interest in remaining free from the restraints accompanying confinement in administrative confinement, a prisoner is entitled to the minimum requirements of procedural due process. Hewitt v. Helms, 459 U.S. 460, 471-72, 103 S.Ct. 864, 871, 74 L.Ed.2d 675, 688 (1983); Mitchell v. Hicks, 614 F.2d 1016, 1018-19 (5th Cir. 1980); Wright v. Enomoto, 462 F.Supp. 397 (N.D.Cal. 1976), summarily aff'd, 434 U.S. 1052, 98 S.Ct. 1223, 55 L.Ed.2d 756 (1978). Green’s pleadings" }, { "docid": "21086979", "title": "", "text": "to the disciplinary hearings on these infractions, Washington Department of Correction (DOC) employees, among other things, failed to give him 24-hour advanced written notice of allegations against him and did not allow him to call witnesses or present documentary evidence in his defense. Gotcher was found guilty of the serious infractions at the disciplinary hearings. As a consequence, he lost 30 days of good conduct time credits and was placed in disciplinary segregation. This action, brought under 42 U.S.C. § 1983, followed. Among other claims, Gotcher alleges that the DOC staff failed to afford him the process he was due in connection with the disciplinary hearings. Accordingly, he claims that his loss of good conduct time credits and his disciplinary segregation constituted compensable violations of his due process rights. Wood filed a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6), arguing that because Washington prison inmates do not possess a liberty interest in remaining free from disciplinary action, the complaint failed to state a claim upon which relief could be granted. In granting the motion to dismiss, the district court noted that because the Due Process Clause of the Fourteenth Amendment does not give rise to liberty interests in good conduct time credits or in remaining within the general prison population, the source of Gotcher’s claimed liberty interest had to be Washington state law. Applying the “mandatory language/substantive predicate” due process analysis set forth in such Supreme Court opinions as Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983), and Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989), the district court concluded that Goteher did not possess a protectable liberty interest. The court therefore dismissed his complaint. Goteher timely appealed that decision. We review de novo a dismissal for failure to state a claim, as it is a ruling on a question of law. Everest & Jennings, Inc. v. American Motorists Ins. Co., 23 F.3d 226, 228 (9th Cir.1994). All allegations of fact must be taken as true and construed in the light most favorable to Goteher." }, { "docid": "1028025", "title": "", "text": "again). Plaintiffs paid more than $172 (the total of the checks) to commence the litigation; the City’s tenders would leave them net losers. A tender is insufficient unless it makes the plaintiff whole and thus must include the filing fees and other costs under 28 U.S.C. § 1920. Cf. Fed.R.Civ.P. 68. And a promise of interest tomorrow differs from cash today; Chicago has a history of delay in payment, see Evans v. Chicago, 10 F.3d 474 (7th Cir.1993) (en banc), so a prudent litigant may attach a steep discount to a promise unaccompanied by a check. Especially because the City denies that interest is owed but offers it only as a goodwill gesture. Then there is the matter of damages. Chicago contends that neither the Constitution nor any statute entitles anyone to damages. That’s not correct: a person whose rights under the due process clause have been violated receives nominal damages if he cannot show out-of-pocket loss or other concrete injury. See Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). The City did not tender-even $1 for nominal damages. Cash on the barrelhead to cover costs, interest, and nominal damages still would not be enough, because plaintiffs want compensatory damages (if not punitive damages). Chicago maintains that they have not established any compensable loss, but this gets the cart before the horse. A court may resolve such an issue if and only if there is a live controversy. A defendant cannot demand and receive an opinion on the merits of some aspect of plaintiffs’ claims, pay off the rest, and then contend the whole suit is moot and must be dismissed, consigning the opinion to advisory status. Cf. Johnson v. Wattenbarger, 361 F.3d 991 (7th Cir.2004). To eliminate the controversy and make a suit moot, the defendant must satisfy the plaintiffs’ demands; only then does no dispute remain between the parties. Chicago is unwilling to satisfy plaintiffs’ demands. Gates, Nelson, and others similarly situated are entitled to a judge’s decision on what if any relief (in addition to return of the seized funds) is" }, { "docid": "22762363", "title": "", "text": "barred Hughes’s 2001 in forma pauperis claims. III. Prison Litigation Reform Act Hughes’s 2001 complaint also seeks damages for his treatment by the police officers after he was taken into custody. He alleges that he was forced to strip down to his underwear, sit in the cold for an extended period, and then answer questions at the police station, still wearing only his underwear. Characterizing it as an Eighth, or alternatively a Fourteenth, Amendment claim, the district court dismissed this claim as barred by the Prison Litigation Reform Act, which precludes a prisoner from bringing a federal civil action “for mental or emotional injury suffered while in custody without a prior showing of physical harm.” 42 U.S.C. § 1997e(e). Hughes argues on appeal that, properly construed, his complaint raises a Fourth Amendment challenge to the unreasonableness of his arrest and seeks nominal damages. Section 1997e(e), however, bars any claim seeking compensatory damages for emotional distress suffered while in custody. See Napier v. Preslicka, 314 F.3d 528, 532 (11th Cir. 2002). Hughes concedes this but argues that § 1997e(e) does not bar nominal damages, which he claims to have sought. Nominal damages are appropriate if a plaintiff establishes a violation of a fundamental constitutional right, even if he cannot prove actual injury sufficient to entitle him to compensatory damages. Carey v. Piphus, 435 U.S. 247, 255, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). Nominal damages are available for Fourth Amendment violations. See Slicker v. Jackson, 215 F.3d 1225, 1227 (11th Cir.2000) (approving of nominal damages award in Fourth Amendment excessive force claim). Relying on the plain text of the statute, the Second, Third, Seventh, Ninth, and Tenth Circuits have interpreted § 1997e(e) not to preclude a prisoner from seeking nominal damages. See Calhoun v. DeTella, 319 F.3d 936, 941 (7th Cir.2003); Oliver v. Keller, 289 F.3d 623, 630 (9th Cir. 2002); Thompson v. Carter, 284 F.3d 411, 418 (2d Cir.2002); Searles v. Van Bebber, 251 F.3d 869, 878-79 (10th Cir.2001); Allah v. Al-Hafeez, 226 F.3d 247, 252 (3d Cir.2000). The district court dismissed Hughes’s complaint sua sponte before service of process." }, { "docid": "21402742", "title": "", "text": "compensatory damages. See Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). The Carey Court reasoned that [bjecause the right to procedural due process is “absolute” in the sense that it does not depend upon the merits of a claimant’s substantive assertions, and because of the importance to organized society that procedural due process be observed, we believe that the denial of procedural due process should be actionable for nominal damages without proof of actual injury. Id. at 266, 98 S.Ct. 1042 (citations omitted). Extrapolating from Carey, other courts of appeals have held that when a jury finds a violation of an “absolute” constitutional right yet declines to award compensatory damages, the district court ordinarily should award nominal damages. See, e.g., Cabrera v. Jakabovitz, 24 F.3d 372, 391 (2d Cir.1994); Ruggiero v. Krzeminski, 928 F.2d 558, 563-64 (2d Cir.1991); Farrar v. Cain, 756 F.2d 1148, 1152 (5th Cir.1985). We agree with these courts and deem Carey controlling here. Accordingly, we hold that when a jury in a case brought pursuant to 42 U.S.C. § 1983 finds a violation of the plaintiffs procedural due process rights, but fails to award compensatory damages, nominal damages are available to the plaintiff. Let us be perfectly clear. We do not suggest that this entitlement is automatic, but, rather, it is incumbent upon the plaintiff to make a timely request for nominal damages. Cf. Kerr-Selgas, 69 F.3d at 1214-15 (emphasizing, in regard to a claim under 42 U.S.C. § 1981a, that a plaintiff is not “automatically entitled” to nominal damages, and suggesting the need for “a timely request”); Cooper, 63 F.3d at 281-83 (holding to like effect in a tort case). In some circuits, a plaintiff must request nominal damages ex ante, that is, by seeking a jury instruction to that effect, on penalty of waiver. See, e.g., Cooper, 63 F.3d at 281-84; Sims v. Mulcahy, 902 F.2d 524, 533-36 (7th Cir.1990). In dictum, Kerr-Selgas adumbrates a more expansive approach. See Kerr-Selgas, 69 F.3d at 1215 (denying relief because “Kerr neither requested a jury instruction on nominal damages, nor asked" }, { "docid": "21426346", "title": "", "text": "to whether either man deprived him of his rights, and that they were not “entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Vinning-El, 482 F.3d at 924. Our review is de novo, see Vinning-El, 482 F.3d at 924, and we may affirm on any basis supported by the record, see Cygan v. Wis. Dep’t of Corr., 388 F.3d 1092, 1098 (7th Cir.2004); see also Winters v. Frur-Con Inc., 498 F.3d 734, 743 (7th Cir.2007). 1. Townsend’s Fourteenth Amendment claim against Security Director Fuchs We first address Townsend’s argument that the district court erroneously granted summary judgment for Security Director Fuchs. Townsend essentially reasserts the argument that he made before district court. Specifically, he contends that Fuchs violated his due-process rights under Sandin and Wilkinson by placing him in TLU without procedural protections. Because it is undisputed that Townsend was not afforded a hearing or other procedural protections before he was placed in TLU, his argument turns on whether he had a constitutionally protected liberty interest in avoiding placement in TLU. See Ky. Dep’t of Corrs. v. Thompson, 490 U.S. 454, 459-60, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989); Gillis v. Litscher, 468 F.3d 488, 491-92 (7th Cir.2006). The Constitution itself does not create an interest in avoiding transfer within a correctional facility. See Wilkinson, 545 U.S. at 222, 125 S.Ct. 2384; Meachum v. Fano, 427 U.S. 215, 225, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Nevertheless, in San-din the Supreme Court determined that the Fourteenth Amendment provides to inmates a liberty interest in avoiding placement in more restrictive conditions, such as segregation, when those conditions pose an atypical and significant hardship when compared to the ordinary incidents of prison life. See 515 U.S. at 484, 115 S.Ct. 2293. However, since the Court decided Sandin, we have repeatedly determined that even extremely harsh prison conditions may not be so “atypical” as to create the liberty interest the Court contemplated. See, e.g., Lekas v. Briley, 405 F.3d 602, 609 (7th Cir.2005); Thomas" }, { "docid": "3313549", "title": "", "text": "from holding public office, voting in state elections and serving as a juror); A.M. v. Butler, 360 F.3d 787, 790 (7th Cir.2004) (finding that habeas petition was not moot because juvenile delinquency adjudication created sufficient adverse collateral consequences); McClendon v. Trigg, 79 F.3d 557, 558 (7th Cir.1996) (dismissing as moot a § 2254 petition to set aside prison disciplinary action that took away good time credits due to petitioner’s subsequent death). The Supreme Court has established a presumption of collateral consequences from a wrongful criminal conviction, but the Court has not extended this presumption to prison disciplinary sanctions. See Diaz v. Duckworth, 143 F.3d 345, 346 (7th Cir.1998) (citing Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)). Whether it is possible for a prisoner to allege sufficient consequences from a disciplinary action to maintain an Article III case or controversy after custody has ended remains an open question. See Diaz, 143 F.3d at 346-47. This case does not require that we decide that question. Mr. Cochran alleges in general terms only that he lost his preferred prison living arrangement, his prison job and his eligibility for rehabilitative programs and that the disciplinary report has damaged his prison record. These alleged deprivations, however, are not sufficient collateral consequences. See Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976) (stating that not every prison action that adversely affects the prisoner requires due process, such as a transfer to a substantially less agreeable prison and an unfavorable classification for rehabilitative programs); see also Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460-61, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (stating, in § 1983 context, that prisoners do not have an inherent liberty interest in the prison setting); DeWalt v. Carter, 224 F.3d 607, 613 (7th Cir.2000) (stating, in § 1983 context, that prisoners have no liberty or property interest in their prison job). Furthermore, the record does not suggest any such lingering disability. Conclusion Accordingly, the judgment of the district court is vacated, and the case is remanded with direction" }, { "docid": "5864232", "title": "", "text": "considered remote or speculative. We note that the order dismissing the complaint failed to directly consider this claim. No reason was assigned for not doing so, although Bradley’s proposed amended complaint had brought this claim to the district court’s attention. Lost prison wages are ascertainable and recoverable. See Mack v. Johnson, 430 F.Supp. 1139,1150-51 (E.D.Pa.1977) , aff’d mem., 582 F.2d 1275 (3d Cir. 1978) ; Landman v. Royster, 354 F.Supp. 1302, 1319 (E.D.Va.1973). Therefore, plaintiff adequately stated a claim with regard to the wages lost while he was in SHU. In addition, nominal damages are available in a § 1983 action if a plaintiff can show he was denied due process, even “without proof of actual injury.” Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 1053, 55 L.Ed.2d 252 (1978). Finally, with respect to damages, under the proper circumstances punitive damages may be available in a § 1983 action. Carlson v. Green, 446 U.S. 14, 22, 100 S.Ct. 1468, 1474, 64 L.Ed.2d 15 (1980). The district court’s order dismissing Bradley’s pro se complaint is reversed and the case is remanded for further proceedings consistent with this opinion. . 7 N.Y.C.R.R. § 252.3(f) provides that “[wjhere an inmate is being held in confinement in his cell or room or in a special housing unit, the committee shall interview the inmate at its first meeting following the date of confinement.” . 7 N.Y.C.R.R. § 253(l)(a) provides that “[i]n any case where there is reasonable cause to believe that an inmate’s behaviour has constituted a danger to life, health, security or property ... the superintendent may direct that a superintendent’s proceeding be held.” Upon the Superintendent so directing, 7 N.Y.C.R.R. § 253(2) requires that an employee of the correctional facility file formal charges against the prisoner, and the Superintendent must designate a person to conduct the proceeding. . In the present case, 16 of the 42 days spent in SHU prior to the Superintendent’s Proceeding were apparently the result of a different and unrelated disciplinary proceeding. Bradley does not contend that his confinement in SHU during these 16 days was wrongful." }, { "docid": "23563695", "title": "", "text": "an award of nominal damages for Eighth Amendment violations would be inappropriate because the constitutional guarantee against cruel and unusual punishment, unlike the right to procedural due process, is not an “absolute” right. Cf. Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (because right to procedural due process is “absolute,” nominal damages are available for denial of right even absent actual injury). But Babcock’s comment about nominal damages was dicta because the appellant never argued that their availability could salvage his claim, see Babcock, 102 F.3d at 273, and because he did not the panel had no occasion to explore our prior opinions on the subject. We long ago decided that, at a minimum, a plaintiff who proves a constitutional violation is entitled to nominal damages. See Hessel v. O’Hearn, 977 F.2d 299, 302 (7th Cir.1992); Ustrak v. Fairman, 781 F.2d 573, 578 (7th Cir.1986). In particular, we have approved the award of nominal damages for Eighth Amendment violations when prisoners could not establish actual compensable harm. See Madison County Jail Inmates v. Thompson, 773 F.2d 834, 844 (7th Cir.1985); see also Briggs v. Marshall, 93 F.3d 355, 360 (7th Cir.1996) (nominal damages available to remedy Fourth Amendment excessive force claim). Moreover, we note that several of our sister circuits have expressed similar approval of nominal damage awards for Eighth Amendment claims. See, e.g., Gibeau v. Nellis, 18 F.3d 107, 110-11 (2d Cir.1994); Butler v. Dowd, 979 F.2d 661, 672 (8th Cir.1992) (en banc); Beyah v. Coughlin, 789 F.2d 986, 989 (2d Cir.1986); Green v. McKaskle, 788 F.2d 1116, 1124 (5th Cir.1986); Lancaster v. Rodriguez, 701 F.2d 864, 866 (10th Cir.1983); Doe v. Dist. of Columbia, 697 F.2d 1115, 1122-23 (D.C.Cir.1983); see also Slicker v. Jackson, 215 F.3d 1225, 1231 (11th Cir.2000) (approving of nominal damage award in excessive force case). Because nominal damages are awarded to vindicate rights, not to compensate for resulting injuries, we hold that § 1997e(e) does not bar a suit seeking nominal damages to vindicate Eighth Amendment rights. See Thompson, 284 F.3d at 418 (holding that § 1997e(e) does" }, { "docid": "18302917", "title": "", "text": "days’ program segregation did not implicate a liberty interest because the plaintiff did not allege that “his time in temporary lock-up extended the overall length of his sentence or that he lost good time credits.”). See also McGrath v. Wells, No. 06-C-343-C, 2006 WL 2008994, at *6-7 (W.D.Wis. July 17, 2006); Juarez v. Frank, No. 05-C-738-C, 2006 WL 47064, at *3 (W.D.Wis. Jan. 6, 2006); Mark v. Imberg, No. 05-C-279-C, 2005 WL 1587797, at *7 (W.D.Wis. July 6, 2005); Meyer v. Teslik, No. 05-C-269 C, 2005 WL 1463528, at *3 (W.D.Wis. June 21, 2005); Aalders v. Roth, No. 02 C 4729, 2002 WL 1998293, at *2-3 (N.D.Ill. Aug. 28, 2002); United States v. Williams, No. 96 C 5646, 2000 WL 1273464, at *15 (N.D.Ill. Sept. 6, 2000). Correspondingly, before Wilkinson and Westefer, trial courts in this Circuit held routinely that a disciplinary confinement at a supermax prison does not implicate a liberty interest, provided such a confinement did not extend the length of an inmate’s sentence. See, e.g., Collins-Bey v. Frank, No. 05-C-453-C, 2005 WL 2148539, at *6 (W.D.Wis. Sept. 2, 2005) (rejecting a due process claim based on placement in disciplinary segregation at the Wisconsin supermax prison: “[The plaintiff] contends that his Fourteenth Amendment procedural due process rights were violated when he was not allowed to call and directly question witnesses of his choice at his prison disciplinary hearing .... [The plaintiff] acknowledges that he is not eligible to receive good time credit. As a result, disciplinary actions taken against him do not jeopardize the duration of his sentence. Because he has no protected liberty interest at stake in his prison disciplinary hearing, ... [the plaintiffs] claim that he was denied due process must be denied as legally meritless.”); Thomas v. Corrections Corp. of Am., No. 03-C-44-C, 2003 WL 23220781, at *2-3 (W.D.Wis. Feb. 27, 2003) (quoting Whitford v. Boglino, 63 F.3d 527, 532 (7th Cir.1995)) (“Plaintiffs allege that they were given 90 or 120 days’ disciplinary segregation and transferred to the Supermaximum prison^] ‘A prisoner has no due process right to be housed in any particular facility’ and" }, { "docid": "3313550", "title": "", "text": "only that he lost his preferred prison living arrangement, his prison job and his eligibility for rehabilitative programs and that the disciplinary report has damaged his prison record. These alleged deprivations, however, are not sufficient collateral consequences. See Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976) (stating that not every prison action that adversely affects the prisoner requires due process, such as a transfer to a substantially less agreeable prison and an unfavorable classification for rehabilitative programs); see also Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460-61, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989) (stating, in § 1983 context, that prisoners do not have an inherent liberty interest in the prison setting); DeWalt v. Carter, 224 F.3d 607, 613 (7th Cir.2000) (stating, in § 1983 context, that prisoners have no liberty or property interest in their prison job). Furthermore, the record does not suggest any such lingering disability. Conclusion Accordingly, the judgment of the district court is vacated, and the case is remanded with direction that it be dismissed as moot. Vacated and Remanded With Direction . See also Williams v. Wisconsin, 336 F.3d 576, 579 (7th Cir.2003) (\"For prisoners, the difference between a civil rights action and a collateral attack is easy to describe. Challenges to conditions of confinement (such as pollution in the prison or deliberate indifference to serious medical needs) fall under § 1983. Attacks on the fact or duration of confinement come under § 2254.” (citations omitted)); DeWalt v. Carter, 224 F.3d 607, 614-16 (7th Cir.2000) (discussing Supreme Court precedent on when a plaintiff may use § 1983 to bring action related to his conviction or sentence); Sylvester v. Hanks, 140 F.3d 713, 714 (7th Cir.1998) (\"Section 2254 is the appropriate remedy only when the prisoner attacks the fact or duration of ‘custody.’ ”). . See, e.g., Spencer v. Kemna, 523 U.S. 1, 7-14, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); Sibron v. New York, 392 U.S. 40, 55-56, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Pollard v. United States, 352 U.S. 354, 358, 77 S.Ct." } ]

[ { "docid": "23420799", "title": "", "text": "any executory contract or unexpired lease of the debtor, whether or not such contractor lease prohibits or restricts assignment of rights or delegation of duties, if — such lease is of nonresidential real property and has been terminated under applicable bankruptcy law prior to the order of relief. . Paragraph six of the Trustee’s motion states: In order to effect such sale, the Trustee must be authorized to assume the unexpired oil, gas and mineral leases entered into by the debtor and listed on Exhibit “B” attached hereto and incorporated herein by reference, and to assign the interests of the estate in them to B/C Joint Venture, pursuant to 11 U.S.C. Section 365(c). The Trustee alleges, upon information and belief, that no defaults exist in such leases, and adequate assurance of future performance will be provided by B/C Joint Venture. . We may freely review the district court's decisions of law in its bankruptcy appellate capacity. In re HECI Exploration Co., 862 F.2d 513 (5th Cir.1988). . 28 U.S.C. Section 157(a) states: Each district court may provide that any or all cases under title 11 and any or all proceedings arising under title 11 or arising in or related to a case under title 11 shall be referred to the bankruptcy judges for the district. . Subsection (b) permits each circuit to establish bankruptcy appellate panels to hear certain cases on appeal from bankruptcy courts. . Rule 8002 of the Bankruptcy Rules gives parties ten days from the date of entry of a judgment, order, or decree in which to appeal. This ten day requirement is jurisdictional and cannot be waived. In re Aguilar, 861 F.2d 873, 874 (5th Cir.1988). .Rule 4(a) states: In a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal required by Rule 3 shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from . This does not leave litigants without recourse, however. Two" } ]

[ { "docid": "2884136", "title": "", "text": "Reorganization Plan. Following a hearing on the matter, the Bankruptcy Court entered on February 5, 1993 a Memorandum Decision Finding No Discrimination In Respect of Statutory Requirements for Platting or Replatting and Granting Relief With Respect to Outstanding Taxes on Land Being Dedicated (the “Memorandum Decision”). The lower court rejected the Debtors’ arguments and held that 11 U.S.C. § 525(a) does not permit the Debtors to avoid the requirement of Fla.Stat. § 177.-101(4) to pay outstanding taxes. The lower court reasoned that Fla.Stat. § 177.101(4) applied uniformly to every person or entity seeking to plat or replat land in the State of Florida and that the statute does not discriminate against the Debtors “solely be cause such bankrupt or debtor is or has been a debtor under [the Bankruptcy Code] ...” See Memorandum Decision at 3. This timely appeal followed. Discussion The issues on appeal are (1) whether the application of Fla.Stat. § 177.101(4) to this case violates 11 U.S.C. § 525(a); and (2) whether the Appellees’ efforts to obtain immediate payment of the outstanding tax obligations violate the provisions in the Confirmation Order and the Reorganization Plan. The lower court’s determination of whether Fla.Stat. § 177.101(4) violates 11 U.S.C. § 525(a) is a conclusion of law, subject to de novo review. The issue of whether the Appellees’ conduct at issue violates the Confirmation Order and the Reorganization Plan is a question of fact, and the lower court’s findings on this matter will not be set aside unless clearly erroneous. In accordance with these standards of review, the Court reverses the decision of the lower court on both grounds. A. 11 U.S.C. § 525(a) Section 525(a) of the Bankruptcy Code provides, in pertinent part, that: a governmental unit may not deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise or other similar grant to, condition stick a grant to, discriminate with respect to such a grant against, ... a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, ... solely because such bankrupt or debtor" }, { "docid": "1068734", "title": "", "text": "of notice of an order is immaterial to the issue of whether a notice of appeal from the order is timely.”). In the case at bar, the Clerk of the Bankruptcy Court diligently mailed the Order on the very day it was signed, thereby ensuring receipt by the City’s counsel on Monday, February 8, 1993. The City’s argument that it lost three days in order to prepare its Notice of Appeal is a specious one. III. CONCLUSION For the reasons discussed herein, it is hereby ORDERED that the defendants-appellants’ motion for an order declaring that its facsimile transmission of its Notice of Appeal, and accompanying documents, constituted timely filing on February 16, 1993, is denied, and it is further ORDERED that the defendants-appellants’ motion for an order granting them leave to file the Notice of Appeal and accompanying papers with the Bankruptcy Court, nunc pro tunc, is denied, and it is further ORDERED that because the defendants-appellants’ Notice of Appeal was not timely filed, this Court lacks appellate jurisdiction; therefore, the appeal is hereby dismissed, and it is further ORDERED that the plaintiff-respondent’s request for the expenses and costs of responding to this motion is denied. IT IS SO ORDERED. . Ordinarily, the final day on which the City could have filed its Notice of Appeal would have been Monday, February 15, 1993. However, because that day was a legal holiday (President’s Day), it was correctly not included in the computation of the 10-day filing period. See Bankr. Rules 8002(a) and 9006(a), 11 U.S.C.A. . \"The notes of the Advisory Committee indicate the salutary policy underlying the 10-day limit. ‘The time of appeal from a [bankruptcy] ... order ... is 10 days rather than the 30 days provided for in civil practice. The shortened time is specified in order to obtain prompt appellate review ...’. Thus, the Bankruptcy Rules provide that appeals must be noticed within 10 days of entry of the judgment from which the appeal is taken.” Twins Roller Corp. v. Roxy Roller Rink Joint Venture, 70 B.R. 308, 310 (S.D.N.Y.1987). . The Debtor incorrectly asserts that this" }, { "docid": "2884140", "title": "", "text": "1141(a) of the Bankruptcy Code, a confirmed plan of reorganization is binding upon every entity with a prepetition claim against the debtor. 11 U.S.C. § 1141(a) (1988); see also, In re Justice Oaks II, Ltd., 898 F.2d 1644, 1560 (11th Cir.), cert. denied, 498 U.S. 959, 111 S.Ct. 387, 112 L.Ed.2d 398 (1990); In re Custom Arc Manufacturing, Inc., 125 B.R. 843, 844 (Bankr.M.D.Fla.1991). Therefore, the Ap-pellees, as holders of prepetition tax claims, are bound by the provisions of the Confirmation Order and the Reorganization Plan. The lower court’s Confirmation Order enjoins all persons and entities “from taking one or more of the following actions for the purpose of, directly or indirectly, collecting, recovering or receiving payment of, on or with respect to any Claim ...” See Confirmation Order at ¶ 22. Similarly, section 5.2.3 of the Reorganization Plan provides, among other things, that holders of prepetition tax claims “shall be barred from enforcing their rights with respect to their liens unless and until the [Debtors] fail[] to make any payments provided for in this section.” See Reorganized Plan, at 19, § 5.2.3. The Debtors argue that the Appellees’ instant efforts to obtain immediate payment of all taxes due (rather than await the ten semiannual installment payments as provided for in the Plan) directly violate these provisions of the Confirmation Order and the Reorganization Plan. The Court agrees. The record contains no evidence that the Debtors have ever been in default of their obligation to pay the tax claims as provided for by the Plan. Therefore, the Court finds no reason to render relief from the injunction contained in the Confirmation Order and the Reorganization Plan, or to depart from the installment payments specified in the Reorganization Plan. Conclusion In consideration of the above, the Memorandum Decision entered on February 5, 1993 by the Bankruptcy Court is hereby REVERSED. The court below is directed to grant the Appellants’ motion for an order determining that governmental administrative approval of platting and replatting actions on the Debtors’ property conditioned upon the prepayment of tax obligations pursuant to Fla.Stat. § 177.101(4) discriminates against" }, { "docid": "10220245", "title": "", "text": "OPINION PERRIS, Bankruptcy Judge. Approximately 36 days after the entry of an order, debtor/appellant, Oscar Martinez (“appellant”) filed a motion for an extension of time to file a notice of appeal from that order. Appellant appeals from the bankruptcy court’s denial of the motion for an extension. We affirm. FACTS On October 24, 1985, the bankruptcy court entered judgment in an adversary proceeding in appellant’s Chapter 11 case which validated an earlier trustee’s sale of the debtor’s property to defendants/appel-lees. Appellant filed a timely motion for rehearing. At a January 22, 1987 hearing on the motion, the bankruptcy court took the matter under submission. On February 11, 1987, the bankruptcy court filed an Order after Rehearing that denied the motion for rehearing and reinstated and reaffirmed the judgment. This order was entered on the docket on February 19, 1987. The court served the Order after Rehearing on appellant’s former counsel on February 12, 1987, who then served the order on appellant in San Jose, California on February 17, 1987, and in Los Gatos, California on March 9, 1987. Appellant filed a motion for an extension of time for appeal on March 27, 1987, contending that he did not receive notice of the Order after Rehearing. At the hearing on the motion, the court ruled from the bench that the time to appeal could not be extended because it had expired. Appellant filed a notice of appeal from the denial of his motion on May 6, 1987. On May 15, 1987, the court entered an order denying the motion and finding that there is no excusable neglect or other extraordinary circumstances justifying the requested relief. DISCUSSION The issue in this case is whether the bankruptcy court erred in denying appellant’s motion for an extension of time to appeal. A notice of appeal must be filed “within 10 days of the date of the entry of the judgment, order, or decree appealed from.” Bankruptcy Rule 8002(a) (“Rule 8002”). Although a motion to extend the time for filing a notice of appeal must be made within the 10 day period, a request made" }, { "docid": "12701837", "title": "", "text": "PER CURIAM. I. ISSUE ON APPEAL. The Debtor, Gaetano Colomba, argues that the bankruptcy court improperly dismissed his Chapter 13 case and entered an order enjoining the Debtor from filing any bankruptcy case for a period of two years. The Debtor’s statement of the issues on appeal confirms that the Debtor does not seek review of the denial of his motion for reconsideration, or the denial of his motion for re-reconsideration, but instead seeks appellate review from the underlying dismissal order as follows: The issue presented in this appeal is as follows: Did the bankruptcy court below commit a reversible error or abuse of discretion in dismissing the Debtor’s Chapter 13 case, Case No. 98-22180-JNF by its Order of January 10, 2000? Appellant’s Brief, p. 2. II. JURISDICTION. On January 10, 2000, the bankruptcy court dismissed the Debtor’s Chapter 13 case. The order was entered on the docket on January 11, 2000 (the “Dismissal Order”). On January 18, 2000, relying on Fed.R.Civ.P.59(e), the Debtor filed a motion seeking reconsideration of the January 10, 2000 order. The motion for reconsideration was denied on February 4, 2000. Pursuant to Fed.R.Bankr.P.8002, the Debtor had until February 14, 2000, or 10 days from the entry of the order denying the motion for reconsideration, to file a notice of appeal from the Dismissal Order. No notice of appeal was filed during that period. Instead, the Debtor filed another motion for reconsideration, a motion titled “Motion for Re-reconsideration of the January 10, 2000 order.” On February 18, 2000, the bankruptcy court denied the Debtor’s motion for re-reconsideration. On February 23, 2000, the Debtor filed a notice of appeal seeking to appeal “from all Orders or Motions filed under the above captioned docket number and are reflected in the docket sheet as docket items 1-46.” Notice of Appeal, p. 1. The Debtor alleges that his February 23, 2000 notice of appeal is timely, thus giving this Court jurisdiction over his appeal from the Dismissal Order. We disagree. As set forth below, the motion for re-reconsideration and the entry of the order disposing of that motion did not" }, { "docid": "10186527", "title": "", "text": "dated October 27, 1993. The defendants’ appeal of the district court’s decision is presently pending before the United States Court of Appeal for the Eleventh Circuit. . See, e.g., Matter of Topco, Inc., 894 F.2d 727 (5th Cir.1990) (ten-day rule is jurisdictional and cannot be waived); In re Abdallah, 778 F.2d 75 (1st Cir.1985), cert. denied, 476 U.S. 1116, 106 S.Ct. 1973, 90 L.Ed.2d 657 (1986) (no jurisdiction where appellants failed to file timely notice of appeal); In re Pioneer Investment Sendees Co., 153 B.R. 529 (Bankr.E.D.Tenn.1993) (10-day limit for filing appeal is jurisdictional); Martin v. Bay State Milling Co., 151 B.R. 154 (N.D.Ill.1993) (district court had no jurisdiction to hear appeal where appeal was filed more than 10 days). . Rule 9020(c) specifically states, in pertinent part, that the contempt order: shall be effective 10 days after service of the order and shall have the same force and effect as an order of contempt entered by the district court unless within the 10 day period, the entity named therein serves and files objections prepared in the manner provided in Rule 9033(b). If timely objections are filed, the order shall be reviewed as provided in Rule 9033. Fed.R.Bankr.P. 9020(c). . Some courts have ruled that the failure to file timely objections to a contempt order pursuant to Rules 9020(c) and 9033(c) constitutes a waiver of further judicial review of the contempt order. See, e.g., In re Nantahala Village, Inc., 976 F.2d 876 (4th Cir.1992); In re Sasson Jeans, Inc., 104 B.R. 600, 603 (S.D.N.Y.1989). . See footnote 2, supra. . A copy of the entire transcript of the October 28, 1992 evidentiary hearing was not included in the record on appeal nor was it designated to be included." }, { "docid": "6655922", "title": "", "text": "& Copper Co. v. Caplan (In re Century Brass Prods.), 22 F.3d 37 (2d Cir. 1994). See In re McLean Industries, Inc., 30 F.3d 385, 388 (2d Cir.1994), cert. denied,U.S. -, 115 S.Ct. 934, 130 L.Ed.2d 880 (1995). The Second Circuit therefore reversed the District Court Order, but it remanded the proceeding to the Bankruptcy Court to determine whether MARAD’s claim should nonetheless be disallowed under Section 502(d) of the Bankruptcy Code. Id. On June 9, 1995, the Bankruptcy Court issued a Memorandum Decision in favor of the USL Trust, disallowing MARAD’s secured claim pursuant to Section 502(d) of the Bankruptcy Code. In re McLean Industries, Inc., 184 B.R. 10 (Bankr.S.D.N.Y.1995). On June 27,1995, the Clerk of the Bankruptcy Court docketed the Order from the Bankruptcy Court’s opinion. MARAD did not file a notice of appeal from the Order within the ten days prescribed by Bankruptcy Rule 8002(a). Instead, on July 13, 1995, six days after the notice was due, MARAD brought, by way of an order to show cause, a motion for enlargement of time to file a late appeal, or alternatively, to deem an earlier objection to an order proposed by USL Trust to have been a notice of appeal. Following a hearing on July 24, 1995, the Bankruptcy Court issued an Order granting MARAD’s enlargement motion. This Court’s appellate jurisdiction is invoked pursuant to 28 U.S.C. § 158(a)(1). MARAD has appealed the Bankruptcy Court’s decision on the avoidable preference, and the USL Trust has appealed the Bankruptcy Court’s granting of MARAD’s enlargement motion. I consider the latter issue first. DISCUSSION Timeliness of MARAD’s Appeal The USL Trust argues that the Bankruptcy Judge erred as a matter of law and/or abused its discretion in granting MARAD’s motion under Bankruptcy Rule 8002(c) for an enlargement of time to file a notice of appeal. On appeal the Bankruptcy Court’s findings of fact are reviewed under a clearly erroneous standard; its conclusions of law are review de novo. In re Ionosphere Clubs, Inc., 922 F.2d 984, 988 (2d Cir.1990), cert. denied, 502 U.S. 808, 112 S.Ct. 50, 116 L.Ed.2d 28 (1991)." }, { "docid": "2884134", "title": "", "text": "Palm Bay and the Town of Santeetlah, all of whom are holders of pre-petition secured tax liens on certain real property owned by the Debtors. The terms of the Debtors’ respective reorganizations plans (collectively referred to as the “Reorganization Plan”) provided in pertinent part that claimants of allowed prepetition tax claims would receive the full amount of their claims in cash, either upon the sale of the tract of land or in ten (10) equal semiannual installments over a five-year period, beginning on February 1,1993. See Reorganization Plan, at 19, § 5.2.3. The Reorganization Plan also contained an injunctive clause, which provided that holders of allowed secured prepetition tax claims: shall retain their statutory lien on such property to secure the Reorganized Company’s obligations under this Plan, but shall be barred from enforcing their rights with respect to such liens unless and until the Reorganized Company fails to make any payment provided for in this section. Reorganization Plan, at 19, § 5.2.3. The Bankruptcy Court confirmed the Reorganization Plan on March 27, 1992. See Order Confirming Second Amended Joint Plan of Reorganization of General Development Corporation (the “Confirmation Order”). Following confirmation, the Debtors sought to plat or replat previously completed tracts of undeveloped land to achieve greater value from the liquidation of the undeveloped tracts, and to this end, sought governmental administrative approval of the platting and replatting actions. The governmental authorities, however, denied approval on the basis that the Debtors failed to comply with Fla.Stat. § 177.101(1). That statute requires that applications for actions platting or rep-latting land must include “certificates showing that all state and county taxes have been paid.” Fla.Stat. § 177.101(1) (West Supp. 1991). In response, the Debtors sought an order from the Bankruptcy Court determining that governmental administrative action with respect to the platting and replatting actions could not be conditioned on the immediate payment of the prepetition taxes. The Debtors argued that conditioning the approval of the platting and replatting actions upon payment of the outstanding tax obligations would violate the fresh start policy of 11 U.S.C. § 525, the Confirmation Order and the" }, { "docid": "1068722", "title": "", "text": "the alternative, an order granting the City leave to file the Notice of Appeal and accompanying papers with the Bankruptcy Court, nunc pro tunc. For the reasons set forth herein, the City’s motion is denied in its entirety. II. DISCUSSION A. Notice of Appeal Filing Requirements Bankruptcy Rule 8001 requires that a notice of appeal be filed with the Clerk of the Bankruptcy Court within the time allowed by Bankruptcy Rule 8002. Rule 8002, in turn, is entitled “Time for Filing Notice of Appeal”, and provides in pertinent part that the “notice of appeal shall be filed within 10 days of the date of entry of the judgment, order, or decree appealed from.” Rule 8002(a) (emphasis added). In the instant case, there is no dispute that the 10-day period for filing the City’s Notice of Appeal began to run on February 5, 1993 and ended on February 16, 1993. See note 1, supra. Rather, the Court must address the propriety of facsimile filing and also determine, as the Debtor urges, whether this court has jurisdiction to grant the relief requested. 1. The Filing Deadline is Jurisdictional in Nature. The 10-day period for filing a notice of appeal has been strictly construed, requiring strict compliance with its terms. In re Shewchun, 959 F.2d 236 (6th Cir. 1992); In re Parkway Inn, Ltd., 936 F.2d 579 (9th Cir.1991); In re Souza, 795 F.2d 855 (9th Cir.1986); In re Universal Minerals, Inc., 755 F.2d 309 (3d Cir.1985); In re Satellite Systems Corp., 73 B.R. 610 (S.D.N.Y.1987) (and cases cited therein); Twins Roller Corp. v. Roxy Roller Rink Joint Venture, 70 B.R. 308, 310 (S.D.N.Y. 1987) (and cases cited therein). More significantly, the 10-day deadline under Rule 8002(a) is jurisdictional in nature, so that a failure to timely file the notice of appeal deprives the district court of jurisdiction to review a bankruptcy court’s order. In re Corto, 1992 WL 279257, 1992 U.S.Dist. LEXIS 15296 (W.D.N.Y.1992); In re Tuti-no, 1991 WL 144199, 1991 U.S.Dist. LEXIS 10210 (N.D.N.Y.1991) (and cases cited therein); In re W.T. Grant Co., 425 F.Supp. 565, 567 (S.D.N.Y.1976), aff'd mem. sub." }, { "docid": "433136", "title": "", "text": "an appellant to file its notice of appeal within ten days from the entry of judgment. Fed.R.Bankr.P. 8002(a) (“The notice of appeal shall be filed with the clerk within 10 days of the date of the entry of the judgment, order, or decree appealed from”). Failure to timely file a notice within the ten day appeal period divests the district court of jurisdiction over the appeal and mandates dismissal of the appeal. In re Peacock, 125 B.R. 526, 528 n. 7 (N.D.Ill.1991) (“[t]he 10-day time period in which to file a bankruptcy appeal is jurisdictional under Bankruptcy Rule 8002(a)”); see also In re Topco, Inc., 894 F.2d 727, 733 n. 7 (5th Cir.1990) (“[Rule 8002’s] ten day requirement is jurisdictional and cannot be waived”); Twins Roller Corp. v. Roxy Roller Rink Joint Venture, 70 B.R. 308, 310 (S.D.N.Y.1987) (“Failure to file timely a notice of appeal within the meaning of Bankruptcy Rule 8002 bars appellate review_ [citations omitted]_ This 10-day limit is strictly construed, requiring strict compliance with its terms”). As stated, Martin filed his notice of appeal 38 days after the entry and docketing of the judgment orders. We, therefore, find that Martin failed to file a timely notice of appeal under Bankruptcy Rule 8002. Accordingly, this Court has no jurisdiction to hear this appeal unless Martin can show that he properly applied for an extension of time pursuant to Bankruptcy Rule 8002(c). However, we conclude that this Court is without jurisdiction to grant Martin an extension of time to file a notice of appeal, because Martin has not complied with either of the prerequisites necessary to obtain an extension of time to file a notice of appeal under Bankruptcy Rule 8002(c). Bankruptcy Rule 8002(c) states in pertinent part: The bankruptcy judge may extend the time for filing the notice of appeal by any party for a period not to exceed 20 days from the expiration of the time otherwise prescribed by this rule. A request to extend the time for filing a notice of appeal must be made before the time for filing a notice of appeal has" }, { "docid": "10186526", "title": "", "text": "and adjudicated in Case No. 92-6935-CIY-ARONOVITZ and is currently pending before the Eleventh Circuit. The Court also will not address on the merits Hemmerle’s argument that Boston Pointe lacked standing to move for contempt against Hemmerle since the Trustee— a party who undisputedly has standing— joined in Boston Pointe’s motion for contempt. Conclusion Based upon the foregoing, the Court hereby AFFIRMS the bankruptcy court’s Contempt Order dated November 8, 1992 and Turnover Order dated April 9, 1993. The evidence supports the finding that Hemmerle was in civil contempt of the three aforementioned orders and that the ultimate sanction of $47,000.00 as embodied in the Turnover Order was proper and appropriate. . The defendants appealed the entry of default and the Final Judgment to the district court. The case was assigned to this Court as Kenneth V. Hemmerle, Sr., S.I.R. Investment and Development, Inc. and King of Clubs, Inc. v. Daniel L. Bakst, Trustee, Case No. 92-6935-CIV-ARONO-VITZ (S.D.Fla.). After oral argument on the merits of the appeal, this court affirmed the bankruptcy court's decision by Order dated October 27, 1993. The defendants’ appeal of the district court’s decision is presently pending before the United States Court of Appeal for the Eleventh Circuit. . See, e.g., Matter of Topco, Inc., 894 F.2d 727 (5th Cir.1990) (ten-day rule is jurisdictional and cannot be waived); In re Abdallah, 778 F.2d 75 (1st Cir.1985), cert. denied, 476 U.S. 1116, 106 S.Ct. 1973, 90 L.Ed.2d 657 (1986) (no jurisdiction where appellants failed to file timely notice of appeal); In re Pioneer Investment Sendees Co., 153 B.R. 529 (Bankr.E.D.Tenn.1993) (10-day limit for filing appeal is jurisdictional); Martin v. Bay State Milling Co., 151 B.R. 154 (N.D.Ill.1993) (district court had no jurisdiction to hear appeal where appeal was filed more than 10 days). . Rule 9020(c) specifically states, in pertinent part, that the contempt order: shall be effective 10 days after service of the order and shall have the same force and effect as an order of contempt entered by the district court unless within the 10 day period, the entity named therein serves and files objections prepared" }, { "docid": "2884143", "title": "", "text": "1993. The ten-day period to appeal a bankruptcy court order begins to run from the date of the entry of the order on the docket. In re Enna Associated Investors, 61 B.R. 687 (N.D.Ill.1986); In re Pacific Sales Co., 13 B.R. 634 (Bankr.D.P.R.1981); see also Bankruptcy Rule 9021. Therefore, the ten-day period in this case began to run on February 10, 1993, the date of the entry of the decision on the docket. Ten days hence was February 20th which fell on a Saturday, and therefore, a Notice of Appeal filed on Monday, February 22, 1993 was timely. . See In re Chase & Sanborn Corp., 904 F.2d 588, 593 (11th Cir.1990); In re Sublett, 895 F.2d 1381 (11th Cir.1990). . See In re Chase, 904 F.2d at 593; In re T & B General Contracting, Inc., 833 F.2d 1455 (11th Cir.1987); In re General Coffee Corp., 64 B.R. 702 (S.D.Fla.1986), cert. denied, 485 U.S. 1007, 108 S.Ct. 1470, 99 L.Ed.2d 699 (1988). . See, e.g., In re Hoffman, 65 B.R. 985 (D.R.I.1986) (state statute requiring that tax administrator certify all outstanding taxes had been paid prior to state approval of transfer of debtor’s liquor license violated § 525(a)); In re William Tell, II, Inc., 38 B.R. 327 (N.D.Ill.983) (court directed state licensing board to issue renewal of debtor's liquor license despite outstanding tax obligations which had to be first satisfied pursuant to state statute); In re Aegean Fare, Inc., 35 B.R. 923 (Bankr.D.Mass.1983) (municipal licensing board cannot condition renewal of debtor's liquor license on basis of state law that required certification that all taxes due had been paid); In re Jacobsmeyer, 13 B.R. 298 (Bankr.W.D.Mo.1981). . Although the Appellants raised this argument in the court below, the lower court did not address it in the Memorandum Decision." }, { "docid": "2884135", "title": "", "text": "Confirming Second Amended Joint Plan of Reorganization of General Development Corporation (the “Confirmation Order”). Following confirmation, the Debtors sought to plat or replat previously completed tracts of undeveloped land to achieve greater value from the liquidation of the undeveloped tracts, and to this end, sought governmental administrative approval of the platting and replatting actions. The governmental authorities, however, denied approval on the basis that the Debtors failed to comply with Fla.Stat. § 177.101(1). That statute requires that applications for actions platting or rep-latting land must include “certificates showing that all state and county taxes have been paid.” Fla.Stat. § 177.101(1) (West Supp. 1991). In response, the Debtors sought an order from the Bankruptcy Court determining that governmental administrative action with respect to the platting and replatting actions could not be conditioned on the immediate payment of the prepetition taxes. The Debtors argued that conditioning the approval of the platting and replatting actions upon payment of the outstanding tax obligations would violate the fresh start policy of 11 U.S.C. § 525, the Confirmation Order and the Reorganization Plan. Following a hearing on the matter, the Bankruptcy Court entered on February 5, 1993 a Memorandum Decision Finding No Discrimination In Respect of Statutory Requirements for Platting or Replatting and Granting Relief With Respect to Outstanding Taxes on Land Being Dedicated (the “Memorandum Decision”). The lower court rejected the Debtors’ arguments and held that 11 U.S.C. § 525(a) does not permit the Debtors to avoid the requirement of Fla.Stat. § 177.-101(4) to pay outstanding taxes. The lower court reasoned that Fla.Stat. § 177.101(4) applied uniformly to every person or entity seeking to plat or replat land in the State of Florida and that the statute does not discriminate against the Debtors “solely be cause such bankrupt or debtor is or has been a debtor under [the Bankruptcy Code] ...” See Memorandum Decision at 3. This timely appeal followed. Discussion The issues on appeal are (1) whether the application of Fla.Stat. § 177.101(4) to this case violates 11 U.S.C. § 525(a); and (2) whether the Appellees’ efforts to obtain immediate payment of the outstanding" }, { "docid": "2884142", "title": "", "text": "the Debtor in violation of 11 U.S.C. § 525 and the fresh start principles underlying § 525. DONE AND ORDERED. .At oral argument on appeal, counsel for Appel-lee, City of Port St. Lucie challenged for the first time the timeliness of the notice of appeal in this case. Although this issue was not raised by any party in the appellate briefs, the Court will address it as it is a jurisdictional issue and cannot be waived. See Matter of Topco, Inc., 894 F.2d 727 (5th Cir.1990); In re Abdallah, 778 F.2d 75 (1st Cir.1985), cert. denied, 476 U.S. 1116, 106 S.Ct. 1973, 90 L.Ed.2d 657 (1986); In re Hospital General San Carols, Inc., 83 B.R. 870 (D.P.R.1988). The Court finds that the Notice of Appeal was filed within the ten-day limitations period prescribed by Bankruptcy Rule 8002(a). The Memorandum Decision from this appeal is taken was entered by the lower court on February 5, 1993. It was entered on the docket on February 10, 1993, and the Notice of Appeal was filed on February 22, 1993. The ten-day period to appeal a bankruptcy court order begins to run from the date of the entry of the order on the docket. In re Enna Associated Investors, 61 B.R. 687 (N.D.Ill.1986); In re Pacific Sales Co., 13 B.R. 634 (Bankr.D.P.R.1981); see also Bankruptcy Rule 9021. Therefore, the ten-day period in this case began to run on February 10, 1993, the date of the entry of the decision on the docket. Ten days hence was February 20th which fell on a Saturday, and therefore, a Notice of Appeal filed on Monday, February 22, 1993 was timely. . See In re Chase & Sanborn Corp., 904 F.2d 588, 593 (11th Cir.1990); In re Sublett, 895 F.2d 1381 (11th Cir.1990). . See In re Chase, 904 F.2d at 593; In re T & B General Contracting, Inc., 833 F.2d 1455 (11th Cir.1987); In re General Coffee Corp., 64 B.R. 702 (S.D.Fla.1986), cert. denied, 485 U.S. 1007, 108 S.Ct. 1470, 99 L.Ed.2d 699 (1988). . See, e.g., In re Hoffman, 65 B.R. 985 (D.R.I.1986) (state statute" }, { "docid": "1068735", "title": "", "text": "and it is further ORDERED that the plaintiff-respondent’s request for the expenses and costs of responding to this motion is denied. IT IS SO ORDERED. . Ordinarily, the final day on which the City could have filed its Notice of Appeal would have been Monday, February 15, 1993. However, because that day was a legal holiday (President’s Day), it was correctly not included in the computation of the 10-day filing period. See Bankr. Rules 8002(a) and 9006(a), 11 U.S.C.A. . \"The notes of the Advisory Committee indicate the salutary policy underlying the 10-day limit. ‘The time of appeal from a [bankruptcy] ... order ... is 10 days rather than the 30 days provided for in civil practice. The shortened time is specified in order to obtain prompt appellate review ...’. Thus, the Bankruptcy Rules provide that appeals must be noticed within 10 days of entry of the judgment from which the appeal is taken.” Twins Roller Corp. v. Roxy Roller Rink Joint Venture, 70 B.R. 308, 310 (S.D.N.Y.1987). . The Debtor incorrectly asserts that this court lacks jurisdiction to even entertain the instant motion (Debtor Mem. 3/26/93 at 2; Gordon Aff. ¶ 6). It is true that this court is deprived of appellate jurisdiction if an appellant fails to file a notice of appeal within the 10-day period prescribed by Rule 8002(a), and thereafter fails to either (1) file with the Bankruptcy Court a request for an extension within the initial 10-day period, or (2) make a showing of excusable neglect entitling it to make such a request within the 20-day period following expiration of the time for filing. See In re Universal Minerals, Inc., 755 F.2d 309, 312 (3d Cir.1985); Bankr. Rule 8002(c). But, this court cannot determine whether it has jurisdiction until it decides the merits of the instant motion. Refusing to entertain this motion on jurisdictional grounds puts the horse before the carriage. It is clear that because the City did not utilize Rule 8002(c) in the instant case, this court is without jurisdiction to pass upon the City’s request for an extension under that Rule (the" }, { "docid": "2884141", "title": "", "text": "section.” See Reorganized Plan, at 19, § 5.2.3. The Debtors argue that the Appellees’ instant efforts to obtain immediate payment of all taxes due (rather than await the ten semiannual installment payments as provided for in the Plan) directly violate these provisions of the Confirmation Order and the Reorganization Plan. The Court agrees. The record contains no evidence that the Debtors have ever been in default of their obligation to pay the tax claims as provided for by the Plan. Therefore, the Court finds no reason to render relief from the injunction contained in the Confirmation Order and the Reorganization Plan, or to depart from the installment payments specified in the Reorganization Plan. Conclusion In consideration of the above, the Memorandum Decision entered on February 5, 1993 by the Bankruptcy Court is hereby REVERSED. The court below is directed to grant the Appellants’ motion for an order determining that governmental administrative approval of platting and replatting actions on the Debtors’ property conditioned upon the prepayment of tax obligations pursuant to Fla.Stat. § 177.101(4) discriminates against the Debtor in violation of 11 U.S.C. § 525 and the fresh start principles underlying § 525. DONE AND ORDERED. .At oral argument on appeal, counsel for Appel-lee, City of Port St. Lucie challenged for the first time the timeliness of the notice of appeal in this case. Although this issue was not raised by any party in the appellate briefs, the Court will address it as it is a jurisdictional issue and cannot be waived. See Matter of Topco, Inc., 894 F.2d 727 (5th Cir.1990); In re Abdallah, 778 F.2d 75 (1st Cir.1985), cert. denied, 476 U.S. 1116, 106 S.Ct. 1973, 90 L.Ed.2d 657 (1986); In re Hospital General San Carols, Inc., 83 B.R. 870 (D.P.R.1988). The Court finds that the Notice of Appeal was filed within the ten-day limitations period prescribed by Bankruptcy Rule 8002(a). The Memorandum Decision from this appeal is taken was entered by the lower court on February 5, 1993. It was entered on the docket on February 10, 1993, and the Notice of Appeal was filed on February 22," }, { "docid": "1869787", "title": "", "text": "aver that their failure to obtain a stay does not render the homestead issue moot because if the court reverses the bankruptcy court, they would be entitled to a money judgment against Appel-lee for the amount of the homestead fund she received from the trustee. They also contend that Appellee’s request for sanctions is frivolous and is itself sanctionable. Federal Rule of Bankruptcy Procedure 8002(a) provides that a “notice of appeal shall be filed with the clerk within 10 days of the date of the entry of the judgment, order, or decree appealed from.” Because the untimely filing of a notice of appeal implicates the court’s jurisdiction, the ten day requirement is strictly construed. In re Nucorp Energy, Inc., 812 F.2d 582 (9th Cir.1987). In this case, the minute entry overruling the Garcia’s Objection to Exemption was filed on September 29, 1992. The Garcias filed their Notice of Appeal on March 16, 1993. While the Garcias argue that a bankruptcy court’s order is not appealable until judgment is entered, the cases they cite discuss the requirement that a separate order be entered on the clerk’s docket, not a formal judgment. See, e.g., Stelpflug v. Federal Land Bank of St. Paul, 790 F.2d 47 (7th Cir.1986); In re Johnson, 62 B.R. 24, 27 (9th Cir. BAP 1986). A bankruptcy court’s order denying a homestead exemption is an appealable final order. In re White, 727 F.2d 884, 885-86 (9th Cir.1984); see also, In re Fromal, 151 B.R. 730 (E.D.Va.1993). Moreover, there is no merit to the Garcia’s contention that the bankruptcy court did not intend its order to be final. Accordingly, because the Garcia’s appeal of the bankruptcy court’s Order Overruling Objection to Homestead Exemption was not timely filed, this court does not have jurisdiction to consider it. See, In re Mouradick, 13 F.3d 326, 327 (9th Cir.1994) (“the untimely filing of a notice of appeal deprives the appellate court of jurisdiction to review the bankruptcy court’s order.”) Appellee next contends that the Garcia’s appeal of the bankruptcy court’s summary judgment ruling is moot because the Garcias failed to obtain a stay" }, { "docid": "8713978", "title": "", "text": "time allowed under the bankruptcy rules, or the right to appeal will be waived. As discussed, we have previously held that an order denying a claim of exemption is a “final” order under 28 U.S.C. § 158(a). See In re Slimick, 928 F.2d at 307-09. It follows from Bankruptcy Rule 8001 that, absent an extension (or the presence of some other basis for appealing), a notice of appeal must be filed within ten days of the entry of an order. Failure to file within the time limit divests the appellate court of jurisdiction. See In re Souza, 795 F.2d 855, 857 (9th Cir.1986). An order from a bankruptcy court denying á claim of exemption finally determines the discrete matter to which it was addressed, determines and seriously affects substantial rights and can “cause irreparable harm if the losing party must wait until bankruptcy proceedings terminate before appealing.” See In re Allen, 896 F.2d 416, 418 (9th Cir.1990). We therefore hold that the denial of a claim of exemption is a “final” order under 28 U.S.C. § 158(a)(1) and that appeal from an order denying an exemption must be taken within the time allowed under the bankruptcy rules or the right to appeal will be waived. B. Timeliness of Preblich’s Appeal from Denial of Exemption To timely appeal from the bankruptcy Court’s order denying her claim of exemption, Preblich had to file a notice of appeal within ten days of entry of the order. See Fed. R. Bankr.P. 8002(a). Preblich failed to comply with this requirement. On February 24, 1993, the bankruptcy court entered its order denying Preblich’s January 1993 motion claiming an exemption in the escrow proceeds. Preblich never filed a notice of appeal from this order. Instead, on July 29, 1994, Preblich filed another motion claiming the escrow proceeds were exempt. It was only after this second motion was denied by the bankruptcy court that Preblich filed a notice of appeal on September 2, 1994. This notice of appeal, filed more than eighteen months after entry of the bankruptcy court’s February 24, 1993, order denying the exemption, was well" }, { "docid": "433135", "title": "", "text": "a trial on the Fraudulent Conveyance Action, which was consolidated with the remaining Count VI of the Discharge Action. On September 25, 1992, the Bankruptcy Court entered judgment orders in favor of Bay State in the Fraudulent Conveyance Action, 91 A 00418, and in favor of Bay State on Count VI of the Discharge Action, 90 A 1003 (collectively, “judgment orders”). 145 B.R. 933. The judgments were entered on the docket on the same date, September 25, 1992. On November 2, 1992, thirty-eight days after the entry of judgment and docketing of these orders, Martin filed a Notice of Appeal from the judgment orders. Martin did not file a motion for an extension of time to file a notice of appeal. In reliance upon Federal Rule of Bankruptcy Procedure 8002, Bay State contends that this Court lacks jurisdiction over this appeal on the basis that Martin’s Notice of Appeal was filed beyond the mandated ten-day appeal period. We agree and, therefore, grant Bay State’s motion to dismiss. DISCUSSION Federal Rule of Bankruptcy Procedure 8002 requires an appellant to file its notice of appeal within ten days from the entry of judgment. Fed.R.Bankr.P. 8002(a) (“The notice of appeal shall be filed with the clerk within 10 days of the date of the entry of the judgment, order, or decree appealed from”). Failure to timely file a notice within the ten day appeal period divests the district court of jurisdiction over the appeal and mandates dismissal of the appeal. In re Peacock, 125 B.R. 526, 528 n. 7 (N.D.Ill.1991) (“[t]he 10-day time period in which to file a bankruptcy appeal is jurisdictional under Bankruptcy Rule 8002(a)”); see also In re Topco, Inc., 894 F.2d 727, 733 n. 7 (5th Cir.1990) (“[Rule 8002’s] ten day requirement is jurisdictional and cannot be waived”); Twins Roller Corp. v. Roxy Roller Rink Joint Venture, 70 B.R. 308, 310 (S.D.N.Y.1987) (“Failure to file timely a notice of appeal within the meaning of Bankruptcy Rule 8002 bars appellate review_ [citations omitted]_ This 10-day limit is strictly construed, requiring strict compliance with its terms”). As stated, Martin filed his" }, { "docid": "12701838", "title": "", "text": "The motion for reconsideration was denied on February 4, 2000. Pursuant to Fed.R.Bankr.P.8002, the Debtor had until February 14, 2000, or 10 days from the entry of the order denying the motion for reconsideration, to file a notice of appeal from the Dismissal Order. No notice of appeal was filed during that period. Instead, the Debtor filed another motion for reconsideration, a motion titled “Motion for Re-reconsideration of the January 10, 2000 order.” On February 18, 2000, the bankruptcy court denied the Debtor’s motion for re-reconsideration. On February 23, 2000, the Debtor filed a notice of appeal seeking to appeal “from all Orders or Motions filed under the above captioned docket number and are reflected in the docket sheet as docket items 1-46.” Notice of Appeal, p. 1. The Debtor alleges that his February 23, 2000 notice of appeal is timely, thus giving this Court jurisdiction over his appeal from the Dismissal Order. We disagree. As set forth below, the motion for re-reconsideration and the entry of the order disposing of that motion did not toll the time for filing the notice of appeal. III. DISCUSSION. The bankruptcy appellate panel exercises jurisdiction pursuant to 11 U.S.C. § 158(a)(1) and § 158(b)(1) over final orders from which there has been a timely notice of appeal. If the notice of appeal is not timely filed, the bankruptcy appellate panel does not have jurisdiction. See, Browder v. Director, Dept. of Corrections of Ill., 434 U.S. 257, 264, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978). (Time limits for filing a notice of appeal are both mandatory and jurisdictional.) A motion for reconsideration pursuant to Rule 59(e), timely filed within the requisite 10 day period, tolls the time for filing an appeal. [Subsequent motion[s] for reconsideration served within ten days of the order denying the initial motion for reconsideration but more than ten days after the entry of the original judgment do[ ] not toll “the time for appealing from that judgment.” Acevedo-Villalobos v. Hernandez, 22 F.3d 384, 389 (1st Cir.1994); see Glinka v. Maytag Corp., 90 F.3d 72, 74 (2d Cir.1996) (“Allowing subsequent motions" } ]

[ { "docid": "22368421", "title": "", "text": "in New York v. United States, 505 U. S. 144 (1992), were the so-called “take title” provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985, which required States either to enact legislation providing for the disposal of radioactive waste generated within their borders, or to take title to, and possession of, the waste — effectively requiring the States either to legislate pursuant to Congress’s directions, or to implement an administrative solution. Id., at 175-176. We concluded that Congress could constitutionally require the States to do neither. Id., at 176. “The Federal Government,” we held, “may not compel the States to enact or administer a federal regulatory program.” Id., at 188. The Government contends that New York is distinguishable on the following ground: Unlike the “take title” provisions invalidated there, the background-check provision of the Brady Act does not require state legislative or executive officials to make policy, but instead issues a final directive to state CLEOs. It is permissible, the Government asserts, for Congress to command state or local officials to assist in the implementation of federal law so long as “Congress itself devises a clear legislative solution that regulates private conduct” and requires state or local officers to provide only “limited, non-policymaking help in enforcing that law.” “[T]he constitutional line is crossed only when Congress compels the States to make law in their sovereign capacities.” Brief for United States 16. The Government’s distinction between “making” law and merely “enforcing” it, between “policymaking” and mere “implementation,” is an interesting one. It is perhaps not meant to be the same as, but it is surely reminiscent of, the line that separates proper congressional conferral of Executive power from unconstitutional delegation of legislative authority for federal separation-of-powers purposes. See A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 530 (1935); Panama Refining Co. v. Ryan, 293 U. S. 388, 428-429 (1935). This Court has not been notably successful in describing the latter line; indeed, some think we have abandoned the effort to do so. See FPC v. New England Power Co., 415 U. S. 345, 352-353" } ]

[ { "docid": "22492676", "title": "", "text": "said to be one of \"dual sovereignty.\" Gregory v. Ashcroft, 501 U.S. 452, 457, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). The Constitution limits state sovereignty in several ways. It directly prohibits the States from exercising some attributes of sovereignty. See, e.g., Art. I, § 10. Some grants of power to the Federal Government have been held to impose implicit restrictions on the States. See, e.g., Department of Revenue of Ky. v. Davis, 553 U.S. 328, 128 S.Ct. 1801, 170 L.Ed.2d 685 (2008) ; American Ins. Assn. v. Garamendi, 539 U.S. 396, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003). And the Constitution indirectly restricts the States by granting certain legislative powers to Congress, see Art. I, § 8, while providing in the Supremacy Clause that federal law is the \"supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding,\" Art. VI, cl. 2. This means that when federal and state law conflict, federal law prevails and state law is preempted. The legislative powers granted to Congress are sizable, but they are not unlimited. The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms. And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority. Although the anticommandeering principle is simple and basic, it did not emerge in our cases until relatively recently, when Congress attempted in a few isolated instances to extend its authority in unprecedented ways. The pioneering case was New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), which concerned a federal law that required a State, under certain circumstances, either to \"take title\" to low-level radioactive waste or to \"regulat[e] according to the instructions of Congress.\" Id., at 175, 112 S.Ct. 2408. In enacting this provision, Congress issued orders to either the legislative or executive branch" }, { "docid": "13354553", "title": "", "text": "these enumerated powers that every congressional enactment having the force of law must rest. I can identify only four constitutionally enumerated powers that could arguably be candidates to support enactment of the Pro Rata Proposal: the Commerce Clause, § 5 of the Fourteenth Amendment, § 2 of the Fifteenth Amendment, and the Spending Clause. However, as I shall explain, none of these provisions can support the Pro Rata Proposal. As recent jurisprudence has made clear, the Commerce Clause is wholly deficient as a potential source of authority for Congress to mandate that the states accept the votes of U.S. citizens residing in the territories. First of all, a reasonable nexus to interstate commerce is lacking. See United States v. Morrison, 529 U.S. 598, 609, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) (holding that, at a minimum, regulated activity must “substantially affect” interstate commerce); United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (same). Second, even assuming an interstate commerce nexus could be advanced, the Commerce Clause does not afford Congress the authority to “issue directives requiring the States to address particular problems, [or to] command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Printz v. United States, 521 U.S. 898,. 936, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997). “[S]uch commands are fundamentally incompatible with our constitutional system of dual sovereignty.” Id.; see also New York v. United States, 505 U.S. 144, 162, 112 S.Ct. 2408 , 120 L.Ed.2d 120 (1992) (“While Congress has substantial powers to govern the Nation directly, including in areas of intimate concern to the States, the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ intentions.”); id. at 166, 112 S.Ct. 2408 (“We have always understood that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.”). I see no distinction between the Pro Rata Propos al’s mandate" }, { "docid": "11691437", "title": "", "text": "v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 2265, 144 L.Ed.2d 636 (1999) (“By splitting the atom of sovereignty, the founders established two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it” (internal quotation marks and citations omitted)). Accordingly, “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.” New York v. United States, 505 U.S. 144, 162, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). So important and fundamental are these requirements that they admit of no balancing of interests. See Printz, 521 U.S. at 932, 117 S.Ct. 2365. When a congressional enactment compromises “the structural framework of dual sovereignty,” the compromise, regardless of its degree, results in a fundamental defect, and “no comparative assessment of the various interests can overcome [it].” Id. Consequently, the command that “[t]he Federal Government may not compel the States to enact or administer a federal regulatory program” is categorical. Id. at 933, 117 S.Ct. 2365 (quoting New York, 505 U.S. at 188, 112 S.Ct. 2408). The necessity that this rule be categorical is demonstrated by the important values it preserves. As the Court in Gregory observed: It assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society; it increases opportunity for citizen involvement in democratic processes; it allows for more innovation and experimentation in government; it makes government more responsive by putting the States in competition for a mobile citizenry. Gregory, 501 U.S. at 458, 111 S.Ct. 2395 (citation omitted). Further, by assuring a division of power, the rule provides an overarching check on the abuse of governmental power thereby ensuring “the protection of our fundamental liberties.” Id. (internal quotation marks and citations omitted). Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will" }, { "docid": "14106623", "title": "", "text": "judicial review, and deny the deference due to Congress’s clear and amply supported findings. 3. Finally, the majority errs by profoundly misunderstanding the nature and extent of the proper limits imposed by federalism concerns on Congress’s commerce power. Whether considered as part of the substantially affects tests, see Lopez, 514 U.S. 549, 115 S.Ct. 1624 (1995), or as a separate inquiry, see New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), federalism concerns do not justify invalidation of Subtitle C. The Founders provided Congress with a broad and far-ranging power to regulate interstate commerce, but they restrained that power by locating it within an explicit constitutional system that depends upon two spheres of government — state and federal — to represent the interests of, and be accountable to, the people. The majority disregards this careful scheme of structural limitations and seeks to place additional and unprecedented constraints on Congress. Subtitle C, which legislates in an area of traditional congressional expertise, and does not interfere with or usurp any state authority, fits comfortably within the proper federalism-based limits on Congress’s Commerce Clause power. The Constitution allocates to Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const, art. 1, § 8, cl. 3. The Founders intended this power to be extensive in order to remedy the “defect of power in the existing Confederacy to regulate the commerce between its several members.” The Federalist No. 42, at 267 (James Madison)(Clinton Rossiter ed., 1961). From the outset, the Supreme Court recognized the extent of this power, holding it “complete in itself,” and to “be exercised to its utmost extent.” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196, 6 L.Ed. 23 (1824). This statement of Chief Justice Marshall in Ogden is “understood now as an early and authoritative recognition that the Commerce Clause grants Congress extensive power and ample discretion to determine its appropriate exercise.” Lopez, 514 U.S. at 568, 115 S.Ct. 1624 (Kennedy, J., concurring). At the same time, however, the Founders established judicially-enforeeable limits" }, { "docid": "16138166", "title": "", "text": "that the tourism they generate substantially affects interstate commerce. See id. The private landowners and North Carolina Counties now appeal. II. We consider this case under the framework articulated by the Supreme Court in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, — U.S.-, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), ajfg Brzonkala v. Virginia Polytechnic Institute and State University, 169 F.3d 820 (4th Cir.1999). While Congress’s power to pass laws under the Commerce Clause has been interpreted broadly, both Lopez and Morrison reestablish that the commerce power contains “judicially enforceable outer limits.” See Lopez, 514 U.S. at 566, 115 S.Ct. 1624; Morrison, 120 S.Ct. at 1748^49. It is essential to our system of government that the commerce power not extend to effects on inter-state commerce that are so remote that we “would effectually obliterate the distinction between what is national and what is local.” National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37, 57 S.Ct. 615, 81 L.Ed. 893 (1937). Indeed, the judiciary has the duty to ensure that federal statutes and regulations are promulgated under one of the enumerated grants of constitutional authority. It is our further duty to independently evaluate whether “a rational basis exist[s] for concluding that a regulated activity sufficiently affect[s] interstate commerce.” Lopez, 514 U.S. at 557,115 S.Ct. 1624. While this is rational basis review with teeth, the courts may not simply tear through the considered judgments of Congress. Judicial restraint is a long and honored tradition and this restraint applies to Commerce Clause adjudications. “Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.” Morrison, 120 S.Ct. at 1748. In fact, “[t]he substantial element of political judgment in Commerce Clause matters leaves our institutional capacity more in doubt than when we decide cases, for instance, under the Bill of Rights.” Lopez, 514 U.S. at 579, 115 S.Ct. 1624 (Kennedy, J., concurring). We must enforce the structural limits" }, { "docid": "12970177", "title": "", "text": "controversies, is based on the premise that the ‘powers of the legislature are defined and limited....'\" Flores, _ U.S. at _, 117 S.Ct. at 2162 (citing Marbury, 1 Cranch at 176, 2 L.Ed. 60). Yet, RFRA is expressly “designed to control cases and controversies.” Id. at _, 117 S.Ct. at 2172; 42 U.S.C.2000bb(b)(1). By forcing a standard of review upon the Article III judiciary, for the Court to apply in its adjudication of cases and controversies, Congress has gone beyond its limited and defined powers, intruded upon, and usurped a core function of the Article III branch. The separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch. United States v. Lopez, 514 U.S. 549, 552, 115 S.Ct. 1624, 1626, 131 L.Ed.2d 626 (1995) (citation omitted). “[T]he system of separated powers and checks and balances established in the constitution was regarded by the Framers as a ‘self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.’ ” Morrison v. Olson, 487 U.S. 654, 693, 108 S.Ct. 2597, 2620, 101 L.Ed.2d 569 (1988) (citation omitted). Maintaining the separation of powers is an essential part of the Constitutional structure and plays a vital role in securing freedom for all. Lopez, 514 U.S. at 578, 115 S.Ct. at 1639 (Kennedy, J., concurring). “[T]he courts retain the power, as they have since Marbury v. Madison, to determine if Congress has exceeded its authority under the Constitution.” Flores, _ U.S. at _, 117 S.Ct. at 2172. To that end, [wjhen the political branches of the Government act against the background of a judicial interpretation of the constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed. Id. In Lopez, the Supreme Court invalidated the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q), on grounds that Congress exceeded its authority under the Commerce Clause to regulate commerce among the" }, { "docid": "14106501", "title": "", "text": "the Supreme Court held that the “take title” provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985 im-permissibly coerced the states into passing legislation. Since that time, the Court has issued a spate of decisions striking federal enactments that exceeded Congress’ authority at the expense of the states. See Printz v. United States, 521 U.S. 98, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997) (striking the interim background check provision of the Brady Handgun Violence Prevention Act); City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (striking the Religious Freedom Restoration Act of 1993); Lopez, 514 U.S. 549, 115 S.Ct. 1624 (1995)(striking the Gun Free School Zones Act of 1990); see also Seminole Tribe v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (invalidating Congress’ attempt under the Indian Commerce Clause to abrogate the states’ Eleventh Amendment immunity). The common thread of contemporary activism is an interest in reviving the structural guarantees of dual sovereignty. For instance, Congress may not stretch the commerce power so far as to regulate noncommercial areas of traditional state concern— activity that “has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Lopez, 514 U.S. at 561, 115 S.Ct. 1624. Nor may Congress “define its own powers by altering the Fourteenth Amendment’s meaning.” City of Boerne, 117 S.Ct. at 2168. The Court has preserved the states’ immunity in federal court, defending their right not to be sued without consent. See Seminole Tribe, 517 U.S. 44, 116 S.Ct. 1114. It has enforced the “etiquette of federalism,” Lopez, 514 U.S. at 583, 115 S.Ct. 1624 (Kennedy, J., concurring), barring Congress from “commandee[ring] the legislative processes of the States,” New York, 505 U.S. at 161, 112 S.Ct. 2408 (internal quotation marks omitted), and forbidding the national government from “impress[ing] the state executive into its service” by “command[ing] the States’ officers ... to administer or enforce a federal regulatory program.” Printz, 117 S.Ct. at 2371, 2384. Taken as a whole, the decisions preserve Congress as an institution of broad but" }, { "docid": "12970180", "title": "", "text": "J., concurring). More recently the Court reemphasized the importance of maintaining the constitutional structure and separation of powers, and reaffirmed its duty to call into check impermissible exercises of Congressional power. See, Printz v. United States, _ U.S. _, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997)(striking portions of the Brady Handgun Violence Prevention Act as beyond Congress’ authority to enact pursuant to its powers under the Commerce and Necessary and Proper clauses); See also, New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992)(declaring Congress powerless to compel states to enact or administer federal radioactive waste regulatory programs). With respect to RFRA as applied to federal law, the Court has the power and obligation to check exercises of Congressional power which it deems excessive and unconstitutional. In my opinion, Flores and the Court’s precedents do as much. The majority concludes that Congress has the authority to enact RFRA and graft it onto all federal congressional law, and onto § 548(a)(2)(A) of the Bankruptcy Code in particular. Slip Op. at 861. I agree with the majority that Congress, in its plenary power to establish “uniform Laws on the subject of Bankruptcies, ” is indeed capable of amending any bankruptcy legislation that it has passed. Establishment Clause issues aside, there is no question that Congress could redraft § 548 to include an exemption, for all religious tithes, from the avoidance power of the trustee. But that is not what Congress did here. What Congress did, in reality, was attempt to make a substantive change in free exercise rights, and then impose its interpretation of what the right ought to be onto the courts via “grafts” onto every federal law. Before one can say that Congress may permissibly change the Bankruptcy Code to accommodate the provisions of RFRA, however, one must assume the constitutionality of RFRA in the first instance. But if RFRA does not pass constitutional muster, as I conclude, then Congress is powerless to change the Bankruptcy Code through its power under the Necessary and Proper Clause. That is, although Congress has “the power ‘[t]o make" }, { "docid": "9830989", "title": "", "text": "theft a federal crime. It would even support making the theft, more generally, of other “significant investments,” federal crimes. Surely, stereos and compact-disk players, personal computers and “dry goods,” such as refrigerators, microwaves, and washers and dryers, are “significant investments.” Would the theft of these items similarly be within the scope of Congress’s authority to criminalize under the Interstate Commerce Clause? As I read the majority opinion, they would be. These questions are not merely rhetorical. Under our federal system of government, the “States possess primary authority for defining and enforcing the criminal law.” Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982); see also Lopez, 514 U.S. at - n. 6, 115 S.Ct. at 1648 n. 6 (Thomas, J., concurring). The majority’s reminder that “Congress specifically found that local and state law enforcement efforts had proved inadequate in capturing auto thieves[,]” Maj. Op. at 128 (citation omitted), provides no basis for upholding this encroachment upon the plenary police power of the States. The Lopez Court underscored the principle that federal efforts to occupy an area of the criminal law, where the States have already entered the field, “effects a change in the sensitive relation between federal and state criminal jurisdiction.” 514 U.S. at - n. 3, 115 S.Ct. at 1631 n. 3 (citation and internal quotation marks omitted). Lopez also reaffirms that Congress has no plenary police power authorizing every type of legislation. Id. at -, 115 S.Ct. at 1633 (citing U.S. Const. art. I, § 8); cf. id. at -, 115 S.Ct. at 1642 (Thomas, J., concurring) (“we always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power; ... the Federal Government has nothing approaching a police power” (citing New York v. United States, 505 U.S. 144, 154, 112 S.Ct. 2408, 2417, 120 L.Ed.2d 120 (1992); Wirtz, 392 U.S. at 196, 88 S.Ct. at 2023-24; Jones & Laughlin, 301 U.S. at 37, 57 S.Ct. at 624; Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 435, 1 L.Ed. 440 (1793)" }, { "docid": "6473566", "title": "", "text": "waiver of a state’s Eleventh Amendment immunity. See generally Lopez, 514 U.S. at 578, 115 S.Ct. 1624 (Kennedy, J., concurring) (“[T]he federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of Government has tipped the scales too far”). Specifically, any conclusion we reach today must respect the Supreme Court’s admonition in Seminole Tribe that the “Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent limitations placed upon federal jurisdiction.” 517 U.S. at 72-73, 116 S.Ct. 1114. Further, we must acknowledge that “[r]ecognizing a congressional power to exact constructive waivers of sovereign immunity through the exercise of Article I powers would also, as a practical matter, permit Congress to circumvent the antiabrogation holding of Seminole Tribe.” College Savings Bank, — U.S. -, at-, 119 S.Ct. 2219. We do not intend to question these propositions. However, we do not read Seminole Tribe and its progeny, including the Supreme Court’s recent Eleventh Amendment decisions, to preclude Congress from conditioning federal grants on a state’s consent to be sued in federal court to enforce the substantive conditions of the federal spending program. Indeed, to do so would affront the Court’s acknowledgment in Seminole Tribe of “the unremarkable ... proposition that States may waive their sovereign immunity.” 517 U.S. at 65, 116 S.Ct. 1114. Furthermore, in New York the Court emphasized that principles of federalism do not pose an independent constitutional bar to Congress’ powers under the Spending Clause: By [employing the spending power to attach conditions on the States’ receipt of federal funding], as by any other permissible method of encouraging a State to conform to federal policy choices, the residents of the State retain the ultimate decision as to whether or not the State will comply. If a State’s citizens view federal policy as sufficiently contrary to local interests, they may elect to decline a federal grant. New York, 505 U.S. at 168, 112 S.Ct. 2408. If the Supreme Court were" }, { "docid": "22492677", "title": "", "text": "Congress are sizable, but they are not unlimited. The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms. And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority. Although the anticommandeering principle is simple and basic, it did not emerge in our cases until relatively recently, when Congress attempted in a few isolated instances to extend its authority in unprecedented ways. The pioneering case was New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992), which concerned a federal law that required a State, under certain circumstances, either to \"take title\" to low-level radioactive waste or to \"regulat[e] according to the instructions of Congress.\" Id., at 175, 112 S.Ct. 2408. In enacting this provision, Congress issued orders to either the legislative or executive branch of state government (depending on the branch authorized by state law to take the actions demanded). Either way, the Court held, the provision was unconstitutional because \"the Constitution does not empower Congress to subject state governments to this type of instruction.\" Id., at 176, 112 S.Ct. 2408. Justice O'Connor's opinion for the Court traced this rule to the basic structure of government established under the Constitution. The Constitution, she noted, \"confers upon Congress the power to regulate individuals, not States.\" Id., at 166, 112 S.Ct. 2408. In this respect, the Constitution represented a sharp break from the Articles of Confederation. \"Under the Articles of Confederation, Congress lacked the authority in most respects to govern the people directly.\" Id., at 163, 112 S.Ct. 2408. Instead, Congress was limited to acting \" 'only upon the States.' \" Id., at 162, 112 S.Ct. 2408 (quoting Lane County v. Oregon, 7 Wall. 71, 76, 19 L.Ed. 101 (1869) ). Alexander Hamilton, among others, saw this as \" '[t]he great and radical vice in ... the existing Confederation.' \" 505" }, { "docid": "7854897", "title": "", "text": "116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (holding that the Eleventh Amendment bars Con gress from using its power under the Indian Commerce Clause of Article I to expand the jurisdiction of the federal courts under Article III); id. at 72, 116 S.Ct. 1114 (“[W]e reconfirm that the background principle of state sovereign immunity embodied in the Eleventh Amendment is not so ephemeral as to dissipate when the subject of the suit is an area, like the regulation of Indian commerce, that is under the exclusive control of the Federal Government”); United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (holding that the Gun-Free School Zones Act exceeds Congress’ power under the Commerce Clause); id. at 567, 115 S.Ct. 1624 (“To uphold the Government’s contentions here ... would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”); id. at 578, 115 S.Ct. 1624 (“[T]he federal balance is too essential a part qf our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of Government has tipped the scales too far.”); New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (holding unconstitutional “take-title” provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985); id. at 178, 112 S.Ct. 2408 (“No matter how powerful the federal interest involved, the Constitution simply does not give Congress the authority to require the States to regulate.”). These decisions iterate with renewed vigor the system of “dual sovereignty” envisioned by the framers and established by the Constitution with the fundamental goal of preventing the expansion of state or federal governmental power at the expense of the liberty of individuals. See, e.g., New York v. United States, 505 U.S. 144, 181, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (“State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” (internal quotation marks and citation" }, { "docid": "12970176", "title": "", "text": "do with its passage of RFRA. See, Eugene Gressman, The Necessary and Proper Downfall of RFRA, 2 Chapman Univ. Nexus Journal of Opinion, 73, 77 (1997)(“RFRA is designed to protect the rights the judiciary would find and protect if the courts were to use the compelling governmental interest test with .respect to neutral laws that incidentally burden religious exercises.”). Such attempt, even as applied to federal law, in my opinion, is a serious breach of the separation of powers doctrine. “The power to interpret the Constitution in a case or controversy remains in the Judiciary,” Flores, _ U.S. at _, 117 S.Ct at 2166, and “[w]hen the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is.” Id. at _, 117 S.Ct. at 2172. This duty represents one of the core functions of the Judicial Branch, reserved to it by the Constitution. U.S. Const, art. III § 2. “The judicial authority to determine the constitutionality of laws, in cases and controversies, is based on the premise that the ‘powers of the legislature are defined and limited....'\" Flores, _ U.S. at _, 117 S.Ct. at 2162 (citing Marbury, 1 Cranch at 176, 2 L.Ed. 60). Yet, RFRA is expressly “designed to control cases and controversies.” Id. at _, 117 S.Ct. at 2172; 42 U.S.C.2000bb(b)(1). By forcing a standard of review upon the Article III judiciary, for the Court to apply in its adjudication of cases and controversies, Congress has gone beyond its limited and defined powers, intruded upon, and usurped a core function of the Article III branch. The separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch. United States v. Lopez, 514 U.S. 549, 552, 115 S.Ct. 1624, 1626, 131 L.Ed.2d 626 (1995) (citation omitted). “[T]he system of separated powers and checks and balances established in the constitution was regarded by the Framers as a ‘self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.’" }, { "docid": "6473565", "title": "", "text": "521 U.S. 507, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997);Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996); United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995); New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992); Gregory v. Ashcroft, 501 U.S. 452, 457-59, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991); Brzonkala v. Virginia Polytechnic Inst., 169 F.3d 820 (4th Cir.1999)(en banc); Brown v. North Carolina Div. of Motor Vehicles, 166 F.3d 698 (4th Cir.1999); Condon v. Reno, 155 F.3d 453 (4th Cir.1998),cert. granted, — U.S.-, 119 S.Ct. 1753, 143 L.Ed.2d 786 (1999); In re Creative Goldsmiths of Washington, D.C., Inc., 119 F.3d 1140, 1145 (4th Cir.1997), cert. denied sub nom. Schlossberg v. Maryland Comptroller of Treasury, — U.S. -, 118 S.Ct. 1517, 140 L.Ed.2d 670 (1998). These decisions collectively counsel that we not lightly conclude that principles of federalism and state sovereign immunity permit Congress to employ its spending power in a manner that ultimately effects a waiver of a state’s Eleventh Amendment immunity. See generally Lopez, 514 U.S. at 578, 115 S.Ct. 1624 (Kennedy, J., concurring) (“[T]he federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of Government has tipped the scales too far”). Specifically, any conclusion we reach today must respect the Supreme Court’s admonition in Seminole Tribe that the “Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent limitations placed upon federal jurisdiction.” 517 U.S. at 72-73, 116 S.Ct. 1114. Further, we must acknowledge that “[r]ecognizing a congressional power to exact constructive waivers of sovereign immunity through the exercise of Article I powers would also, as a practical matter, permit Congress to circumvent the antiabrogation holding of Seminole Tribe.” College Savings Bank, — U.S. -, at-, 119 S.Ct. 2219. We do not intend to question these propositions. However, we do not read Seminole Tribe and its progeny," }, { "docid": "7854898", "title": "", "text": "too vital a role in securing freedom for us to admit inability to intervene when one or the other level of Government has tipped the scales too far.”); New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (holding unconstitutional “take-title” provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985); id. at 178, 112 S.Ct. 2408 (“No matter how powerful the federal interest involved, the Constitution simply does not give Congress the authority to require the States to regulate.”). These decisions iterate with renewed vigor the system of “dual sovereignty” envisioned by the framers and established by the Constitution with the fundamental goal of preventing the expansion of state or federal governmental power at the expense of the liberty of individuals. See, e.g., New York v. United States, 505 U.S. 144, 181, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (“State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” (internal quotation marks and citation omitted)); Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) (“[A] healthy balance of power between the States and the Federal Government will reduce the risk of tyranny from either front.”); id. at 459, 111 S.Ct. 2395 (“In the tension between federal and state power lies the promise of liberty.”). They recognize that our federal governmental structure affords its citizens increased liberty through increased political accountability. As the court stated in Lopez, “[t]he theory that two governments accord more -liberty than one requires for its realization two distinct and discernible lines of political accountability: one between the citizens and the Federal Government; the second between the citizens and the States.” Lopez, 514 U.S. at 576, 115 S.Ct. 1624. 3. Role of National Political Process The framers envisioned from the outset the prominent role the political process would play in preventing the accumulation of national power at the expense of local interests. See James Thomas Flexner, The Young Hamilton 393 (1978) (“Hamilton and Madison responded [to objections to central power by" }, { "docid": "9229510", "title": "", "text": "compel States to enact a regulation or enforce a federal regulatory program, conscript state officers for such purpose, or prohibit a State from enacting laws. See New York v. United States, 505 U.S. 144, 188, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (\"The Federal Government may not compel the States to enact or administer a federal regulatory program.\"); Printz v. United States, 521 U.S. 898, 935, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997) (\"Today we hold that Congress cannot circumvent that prohibition by conscripting the State's officers directly.\"); Murphy, 138 S.Ct. at 1478 (\"The PASPA provision at issue here-prohibiting state authorization of sports gambling-violates the anticommandeering rule. That provision unequivocally dictates what a state legislature may and may not do.\"). Even requiring state officers to perform discrete, ministerial tasks violates the doctrine. Printz, 521 U.S. at 929-30, 117 S.Ct. 2365. The reasons behind the anticommandeering doctrine are several. See Murphy, 138 S.Ct. at 1477 (Part III-B). First, the rule reflects \"the Constitution's structural protections of liberty.\" Printz, 521 U.S. at 921, 117 S.Ct. 2365. By balancing power between the sovereigns, it prevents the accumulation of excessive power and \"reduce[s] the risk of tyranny and abuse from either front.\" Gregory, 501 U.S. at 458, 111 S.Ct. 2395. Second, the doctrine prevents Congress from passing the costs and burdens of implementing a federal program onto the States. Printz, 521 U.S. at 930, 117 S.Ct. 2365. Third, the doctrine promotes accountability; it ensures that blame for a federal program's burdens and defects falls on the responsible government. Id. (\"And it will likely be the [state chief law enforcement officers], not some federal official, who will be blamed for any error (even one in the designated federal database) that causes a purchaser to be mistakenly rejected.\"). These reasons, among others, counsel that courts must adhere to the strictures of the rule even where a Congressional act serves important purposes, is most efficiently effectuated through state officers, or places a minimal burden upon the State. Id. at 932, 117 S.Ct. 2365. \"It is the very principle of separate state sovereignty that such a law offends," }, { "docid": "14106344", "title": "", "text": "and Justice O’Connor, however, for the conclusion that the dissent’s view of federalism bears no resemblance to the Supreme Court’s. He need only look to the Court’s decision in Lopez itself where, in virtual anticipation of the very argument made by the dissent, Justice Kennedy wrote for himself, for Justice O’Connor, and just as assuredly for the three remaining Justices of the majority, that\" the absence of structural mechanisms to require[Congress] to undertake this principled task [of ensuring the proper federal balance], and the momentary political convenience often attendant upon their failure to do so, argue against a complete renunciation of the judicial role. Although it is the obligation of all officers of the Government to respect the constitutional design, the federal balance is too essential a part of our constitutional structure and plays too vital a role in securing freedom for us to admit inability to intervene when one or the other level of Government has tipped the scales too far. Lopez, 514 U.S. at 578, 115 S.Ct. 1624 (Kennedy, J., concurring, joined by O’Connor, J.). Thus does the dissent, even more than do appellants, fundamentally misapprehend the Court’s recent pronouncements on our dual sovereignty and the affirmative constitutional obligation of the judiciary to safeguard the sovereignty of the States against congressional encroachment. As Lopez forcefully reminds us, our federal system of government exists not as a mere matter of legislative grace, as the dissent (and ultimately appellants) would have, but rather as a matter of constitutional design. IV. Although in the wake of City of Boerne appellants have returned to defend section 13981 primarily as a constitutional exercise of Congress’ power under the Commerce Clause, they still contend alternatively, though now less enthusiastically, that section 13981 is a constitutionally legitimate exercise of Congress’ power under Section 5, one of the explicit bases upon which section 13981 was enacted. See 42 U.S.C. § 13981(a) (describing statute as adopted “[p]ursuant to the affirmative power of Congress to enact this part ... under section 5 of the Fourteenth Amendment ... ”). The Fourteenth Amendment, of course, provides in pertinent part as" }, { "docid": "9830990", "title": "", "text": "that federal efforts to occupy an area of the criminal law, where the States have already entered the field, “effects a change in the sensitive relation between federal and state criminal jurisdiction.” 514 U.S. at - n. 3, 115 S.Ct. at 1631 n. 3 (citation and internal quotation marks omitted). Lopez also reaffirms that Congress has no plenary police power authorizing every type of legislation. Id. at -, 115 S.Ct. at 1633 (citing U.S. Const. art. I, § 8); cf. id. at -, 115 S.Ct. at 1642 (Thomas, J., concurring) (“we always have rejected readings of the Commerce Clause and the scope of federal power that would permit Congress to exercise a police power; ... the Federal Government has nothing approaching a police power” (citing New York v. United States, 505 U.S. 144, 154, 112 S.Ct. 2408, 2417, 120 L.Ed.2d 120 (1992); Wirtz, 392 U.S. at 196, 88 S.Ct. at 2023-24; Jones & Laughlin, 301 U.S. at 37, 57 S.Ct. at 624; Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 435, 1 L.Ed. 440 (1793) (Iredell, J.))). If federalism means anything, it means that the federal government has nothing approaching a carte blanche. Today’s majority opinion pays no heed to these concerns of federalism, and I therefore, cannot agree that its result squares with Lopez. But there are additional reasons I must dissent. As I have explained elsewhere, see United States v. Chesney, 86 F.3d 564, 575-76 (6th Cir.1996) (Batchelder, J., concurring in the result), the question of whether an intrastate activity, such as carjacking, has a substantial effect on interstate commerce becomes relevant to the inquiry of whether a congressional regulation of such activity is a valid exercise of Congress’s interstate-commerce powers only after it has once been determined that the activity is commercial or economic, or that the statute in question is “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.” Lopez, 514 U.S. at -, 115 S.Ct. at 1631. Though the majority holds that carjacking itself is commercial activity and that the" }, { "docid": "12970178", "title": "", "text": "” Morrison v. Olson, 487 U.S. 654, 693, 108 S.Ct. 2597, 2620, 101 L.Ed.2d 569 (1988) (citation omitted). Maintaining the separation of powers is an essential part of the Constitutional structure and plays a vital role in securing freedom for all. Lopez, 514 U.S. at 578, 115 S.Ct. at 1639 (Kennedy, J., concurring). “[T]he courts retain the power, as they have since Marbury v. Madison, to determine if Congress has exceeded its authority under the Constitution.” Flores, _ U.S. at _, 117 S.Ct. at 2172. To that end, [wjhen the political branches of the Government act against the background of a judicial interpretation of the constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed. Id. In Lopez, the Supreme Court invalidated the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q), on grounds that Congress exceeded its authority under the Commerce Clause to regulate commerce among the several states. Lopez, 514 U.S. at 551, 115 S.Ct. at 1626. The Act made it a federal offense “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe is a school zone.” Id. But because by its terms the statute had nothing to do with commerce or any economic enterprise whatsoever, and did not substantially affect interstate commerce, Congress lacked the power to enact the legislation in the first instance. Id., 514 U.S. at 561, 115 S.Ct. at 1630-31. The Lopez opinion confirms that Congress’ plenary power, though broad indeed, is subject to outer limits which the Court has ample power to enforce, and will enforce. Id., 514 U.S. at 557, 115 S.Ct. at 1628-29. Preservation of the constitutional structure is of primary importance to all officers of the Government, and it is the duty of the Court to “intervene when one or the other [branch] of Government has tipped the scales too far.” Id., 514 U.S. at 578, 115 S.Ct. at 1639 (Kennedy," }, { "docid": "12970179", "title": "", "text": "several states. Lopez, 514 U.S. at 551, 115 S.Ct. at 1626. The Act made it a federal offense “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe is a school zone.” Id. But because by its terms the statute had nothing to do with commerce or any economic enterprise whatsoever, and did not substantially affect interstate commerce, Congress lacked the power to enact the legislation in the first instance. Id., 514 U.S. at 561, 115 S.Ct. at 1630-31. The Lopez opinion confirms that Congress’ plenary power, though broad indeed, is subject to outer limits which the Court has ample power to enforce, and will enforce. Id., 514 U.S. at 557, 115 S.Ct. at 1628-29. Preservation of the constitutional structure is of primary importance to all officers of the Government, and it is the duty of the Court to “intervene when one or the other [branch] of Government has tipped the scales too far.” Id., 514 U.S. at 578, 115 S.Ct. at 1639 (Kennedy, J., concurring). More recently the Court reemphasized the importance of maintaining the constitutional structure and separation of powers, and reaffirmed its duty to call into check impermissible exercises of Congressional power. See, Printz v. United States, _ U.S. _, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997)(striking portions of the Brady Handgun Violence Prevention Act as beyond Congress’ authority to enact pursuant to its powers under the Commerce and Necessary and Proper clauses); See also, New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992)(declaring Congress powerless to compel states to enact or administer federal radioactive waste regulatory programs). With respect to RFRA as applied to federal law, the Court has the power and obligation to check exercises of Congressional power which it deems excessive and unconstitutional. In my opinion, Flores and the Court’s precedents do as much. The majority concludes that Congress has the authority to enact RFRA and graft it onto all federal congressional law, and onto § 548(a)(2)(A) of the Bankruptcy Code in particular. Slip Op. at 861." } ]

[ { "docid": "9201415", "title": "", "text": "the panel's application of Latman but questioning \"whether Latman remains good policy.\" 2009 WL 7751415, at *10. The Ninth Circuit affirmed. In re Law, 435 Fed.Appx. 697 (2011) (per curiam ). It held that the surcharge was proper because it was \"calculated to compensate the estate for the actual monetary costs imposed by the debtor's misconduct, and was warranted to protect the integrity of the bankruptcy process.\" Id., at 698. We granted certiorari. 570 U.S. ----, 133 S.Ct. 2824, 186 L.Ed.2d 883 (2013). II. Analysis A A bankruptcy court has statutory authority to \"issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of\" the Bankruptcy Code. 11 U.S.C. § 105(a). And it may also possess \"inherent power ... to sanction 'abusive litigation practices.' \" Marrama v. Citizens Bank of Mass., 549 U.S. 365, 375-376, 127 S.Ct. 1105, 166 L.Ed.2d 956 (2007). But in exercising those statutory and inherent powers, a bankruptcy court may not contravene specific statutory provisions. It is hornbook law that § 105(a)\"does not allow the bankruptcy court to override explicit mandates of other sections of the Bankruptcy Code.\" 2 Collier on Bankruptcy ¶ 105.01[2], p. 105-6 (16th ed. 2013). Section 105(a) confers authority to \"carry out\" the provisions of the Code, but it is quite impossible to do that by taking action that the Code prohibits. That is simply an application of the axiom that a statute's general permission to take actions of a certain type must yield to a specific prohibition found elsewhere. See Morton v. Mancari, 417 U.S. 535, 550-551, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974) ; D. Ginsberg & Sons, Inc. v. Popkin, 285 U.S. 204, 206-208, 52 S.Ct. 322, 76 L.Ed. 704 (1932). Courts' inherent sanctioning powers are likewise subordinate to valid statutory directives and prohibitions. Degen v. United States, 517 U.S. 820, 823, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996) ; Chambers v. NASCO, Inc., 501 U.S. 32, 47, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). We have long held that \"whatever equitable powers remain in the bankruptcy courts must and can only be" } ]

[ { "docid": "8242672", "title": "", "text": "inherent-authority analysis. See Chrysler, 186 F.3d at 1019 (“The district court imposed the sanction under Rule 37 of the Federal Rules of Civil Procedure and the inherent authority of the court.”). Nevertheless, the guidance from the Court is clear, and we emphasize that the better practice is to apply Rule 37 where appropriate and not allow an exercise of inherent power to “obscure” the Rule 37 analysis. Societe Internationale, 357 U.S. at 207, 78 S.Ct. 1087. That is not to say that inherent powers are insufficient to justify the sanction of dismissal in an appropriate case if a court makes an express finding of bad faith. See Chambers v. NASCO, 501 U.S. 32, 49 n. 14, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (stating that Societe Internationale would not preclude a sanction of dismissal via a court’s inherent power and noting that the Court had held only that where Rule 37 was applied “there was ‘no need’ to resort to ... inherent power.” (quoting Societe Internationale, 357 U.S. at 207, 78 S.Ct. 1087)). Rather, inherent authority is a broad and powerful tool. As such, it should be used sparingly. Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980) (“Because inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion.”). In general, then, courts first should turn to specific rules tailored for the situation at hand, such as Rule 37, to justify sanctions. Then, as an alternative basis for support or in circumstances where specific rules are insufficient, ie., when “there [is] a need,” it may be appropriate to invoke their inherent authority. Societe Internationale, 357 U.S. at 207, 78 S.Ct. 1087; see also Chambers, 501 U.S. at 49 and 49 n. 14, 111 S.Ct. 2123 (“[P]rior cases have indicated that the inherent power of a court can be invoked even if procedural rules exist which sanction the same conduct,” but “because individual rules address specific problems, in many instances it might be improper to invoke one when another directly applies.”). It follows from this general rule that" }, { "docid": "1056458", "title": "", "text": "a Court, because they are necessary to the exercise of all others.’ ” Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (quoting United States v. Hudson, 11 U.S. (7 Cranch) 32, 34, 3 L.Ed. 259 (1812)). “These powers are ‘governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’ ” Id. (quoting Link v. Wabash R., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)). The inherent power of the federal courts includes the power to “control admission to its bar and to discipline attorneys who appear before it,” but the Supreme Court cautioned “this power ‘ought to be exercised with great caution.’ ” Id. (quoting Ex parte Burr, 22 U.S. (9 Wheat.) 529, 531, 6 L.Ed. 152 (1824)). Because of the potency of inherent powers, “[a] court must exercise its inherent powers with restraint and discretion, and a primary aspect of that discretion is the ability to fashion an appropriate sanction.” Harlan v. Lewis, 982 F.2d 1255, 1262 (8th Cir.1993) (citing Chambers, 501 U.S. at 44-45, 111 S.Ct. 2123). Furthermore, in invoking its inherent power, a court “must comply with the mandates of due process.” Chambers, 501 U.S. at 50, 111 S.Ct. 2123. Thus, before a district court may impose sanctions, the individual must receive notice that sanctions against her are being considered and an opportunity to be heard. In re Clark, 223 F.3d 859, 864 (8th Cir.2000) (citing Chambers, 501 U.S. at 56-57, 111 S.Ct. 2123; Jensen v. Fed. Land Bank of Omaha, 882 F.2d 340, 341 (8th Cir.1989)). We review a district court’s imposition of sanctions against an attorney under its inherent power for an abuse of discretion. United States v. Gonzalez-Lopez, 403 F.3d 558, 564 (8th Cir.2005) (citing Chambers, 501 U.S. at 55, 111 S.Ct. 2123; Bass v. General Motors Corp., 150 F.3d 842, 851 (8th Cir.1998)). “A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law" }, { "docid": "21427874", "title": "", "text": "See Chambers v. NASCO Inc., 501 U.S. 32, 42-43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). The Court’s inherent powers are those that “are necessary to the exercise of all others.” Roadway Express, 447 U.S. at 764, 100 S.Ct. 2455. Inherent powers include the Court’s power to control its docket by dismissing a case as a sanction for a party’s failure to obey court orders. Gonzalez v. Trinity Marine Group, Inc., 117 F.3d 894, 898 (5th Cir.1997). However, when inherent powers are invoked they must be exercised with “restraint and discretion.” Id. Thus, severe sanctions should be confined to instances of “bad faith or willful abuse of the judicial process.” Id. The severe sanction of dismissal is within the Court’s discretion; “[Consequently, the ‘less severe sanction’ of an assessment of attorney’s fees is undoubtedly within a court’s inherent power as well.” Chambers, 501 U.S. at 45, 111 S.Ct. 2123. Although a court usually imposes sanctions under statutes or rules, “sanctions imposed under a court’s inherent powers are appropriate in egregious cases of bad faith conduct such that in the informed discretion of the court, neither the statute nor the rules are up to the task.” Id. at 32, 111 S.Ct. 2123. In any event, when parties exploit the judicial process, a court may sanction conduct beyond the reach of other rules. Natural Gas Pipeline v. Energy Gathering, Inc., 2 F.3d 1397, 1407 (5th Cir.1993). ANALYSIS A. ClearValue, Haase, and Waggett Improperly Withheld the Tests 1) ClearValue, Haase, and Waggett were required to disclose the tests The Lark and Texas Oil Tech reports were related to ClearValue’s patent claims and analogous trade secret water clarification process claims. Proving Pearl River’s accused products had a “high molecular weight” as defined in the '690 patent was a necessary and key component of ClearValue’s patent infringement case. Each of the asserted '690 patent claims required the use of a high molecular weight DADMAC. See Docket No. 268 (Plaintiffs’ Notice of Intent to Assert Only Claims 1, 9, 10, and 17); '690 Patent col. 16:27-30; 16:64-67; 17:12-15; 18:13-17. ClearValue also had to show that the" }, { "docid": "16760618", "title": "", "text": "of its day in court. Because disposition of cases on the merits is generally favored, we have said that a default judgment must be a “sanction of last resort,” to be used only when less onerous methods (for example, adverse evidentiary determinations or other “issue-related sanctions”) will be ineffective or obviously futile. Shea, 795 F.2d at 1075 (internal quotation omitted); Shepherd, 62 F.3d at 1478. While we do not require a district court, in making this judgment, to exhaust lesser sanctions before turning to default, see, e.g., Shepherd, 62 F.3d at 1479, we do require that the court explain its reason for issuing a default judgment rather than a lesser sanction. This duty to explain arises out of two different, although related, concerns. Rule 37(b)(2) permits a district court to issue only such orders “as are just” in response to a party’s failure “to obey an order to provide or permit discovery.” Fed. R. Civ. P. 37(b)(2). The requirement that an ordered sanction be “just” imposes a duty on the district court, particularly in the case of severe sanctions, to give adequate consideration to “whether lesser sanctions would be more appropriate for the particular violation.” Bands, 93 F.3d at 808. When sanctions are ordered under the court’s inherent power, the need to consider less onerous alternatives stems from the intrinsic need for self-restraint in using so powerful a weapon. See, e.g., Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (“Beeause of their very potency, inherent powers must be exercised with restraint and discretion.”)- Indeed, we have noted that in order to justify the use of a court’s inherent power to order default, the court must give “a specific, reasoned explanation for rejecting lesser sanctions, such as fines, attorneys’ fees, or adverse evidentiary rulings.” Shepherd, 62 F.3d at 1478. A district court must state why, in light of the Shea factors, less onerous sanctions are not sufficient. Our task of appellate review of such orders, limited though it may be, cannot be properly exercised if we are not assured that the district court has" }, { "docid": "9504771", "title": "", "text": "in concluding that counsel acted improperly by instructing Nolen not to appear. The Government further asserts that misconduct of counsel unknown to the “client” — in this case the United States “as an institution”— does not warrant the sanction of judgment against the client. Finally, the Government and Petitioners go to some length to explain that the district court misinterpreted what was, they insist, innocent and good faith conduct. Prior to examination of these contentions, we pause to clarify our role in reviewing a district court’s determination of attorney misconduct and its imposition of the sanction of judgment. Preliminarily, we note that it is now clear that a federal court has the inherent power to sanction for conduct which abuses the judicial process. See Chambers v. NASCO, Inc., 501 U.S. 32, -, 111 S.Ct. 2123, 2132-33, 115 L.Ed.2d 27 (1991). This power is “governed not by rule or statute. but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962). Moreover, pursuant to this power, a court may impose the severe sanction of dismissal with prejudice (or its equivalent, judgment) if the circumstances so warrant. See Roadway Express, Inc. v. Piper, 447 U.S. 752, 765, 100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1980); Schilling v. Walworth County Park & Planning Comm’n, 805 F.2d 272, 274-75 (7th Cir.1986). Generally, a district court’s choice of sanction is reviewed for an abuse of discretion. See English v. Cowell, 969 F.2d 465, 472 (7th Cir.1992). However, we have observed that the particular sanction of dismissal with prejudice or judgment is “draconian,” Marrocco v. General Motors Corp., 966 F.2d 220, 223 (7th Cir.1992), and “must be infrequently resorted to by district courts,” Schilling, 805 F.2d at 275. In the normal course of events, justice is dispensed by'the hearing of'eases on their merits; only when the interests of justice are best served by dismissal can this harsh sanction be consonant with the role of courts. We" }, { "docid": "23234340", "title": "", "text": "is the ability to fashion an appropriate sanction for conduct which. abuses the judicial process.” Chambers, 501 U.S. at 44-45, 111 S.Ct. 2123. As the Supreme Court noted, to impose this requirement in every instance may have the effect of causing a delay in the proceeding that improperly rewards the offending party. “Interpreting the proceedings on the merits to conduct sanctions hearings may serve only to reward a party seeking delay.” Id. at 56, 111 S.Ct. 2123. Chambers, 501 U.S. at 56, 111 S.Ct. 2123. Moreover, as the Seventh Circuit observed, district courts need the discretion “to craft sanctions because the power to sanction is essential for them to manage heavy case loads and to protect the interests of litigants.” Graham, 2000 WL 717093, at *3 (citing Oliver v. Gramley, 200 F.3d 465, 466 (7th Cir.1999)). As a practical matter, the district court should usually inform the parties, as did the district judge here, that the district court is considering using its inherent authority to sanction particular conduct. The parties can present to the district court those rules or statutes that may be more appropriate. The district court can then exercise its “informed discretion” in selecting the appropriate authority. “The different grounds for ordering sanctions and shifting attorney’s fees are distinct and require a close and careful analysis.” In re Ruben, 825 F.2d 977, 983 (6th Cir.1987). Of course, there may be some instances in which the litigation conduct is so egregious and the court’s inherent authority so clearly applicable that a district court can exercise its inherent authority without the necessity of a full exposition on the potentially applicable federal rules and statutes. To be sure, the Court in Chambers cautioned that “inherent powers must be exercised with restraint and discretion.” Id. at 44, 111 S.Ct. 2123. Under Chambers, the appellate court reviews a district court’s resort to its inherent authority for an abuse of discretion and a district court’s failure to use a clearly applicable and effective sanction rule could constitute an abuse of discretion. Chambers, 501 U.S. at 50, 111 S.Ct. 2123. As noted by the Third" }, { "docid": "19261174", "title": "", "text": "Combs, 285 F.3d 899, 905 (9th Cir.2002); Jorgensen v. Cassiday, 320 F.3d 906 (9th Cir.2003). Moreover, a party’s destruction of evidence qualifies as willful spoliation if the party has “some notice that the documents were potentially relevant to the litigation before they were destroyed.” Leon v. IDX Sys., Corp. 464 F.3d 951, 959 (9th Cir.2006), quoting United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir.2002) (other citations omitted.) Finally, “[b]elated compliance with discovery orders does not preclude the imposition of sanctions.” Id., quoting North American Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir.1986); see also G-K Properties v. Redevelopment Agency of City of San Jose, 577 F.2d 645, 647-48 (9th Cir.1978). The Ninth Circuit has developed a five part test to evaluate whether a dismissal sanction under Rule 37 is just: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its dockets; (3) the risk of prejudice to the [party seeking sanctions]; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. Valley Engineers, Inc. v. Electric Engineering Co., 158 F.3d 1051, 1057 (9th Cir.1998). The third and fifth factors, prejudice and availability of less drastic sanctions, are the decisive factors. Id. (noting that factor numbers one and two favor, and number four cuts against, ease dispositive sanctions). 3. Inherent Authority of the Court The inherent power of the Court extends beyond those powers specifically created by statute or rule, and encompasses the power to sanction misconduct by the attorneys or parties before the Court. See, e.g. Chambers v. NASCO, Inc., 501 U.S. 32, 44-45, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (holding that federal courts have the inherent power to “fashion an appropriate sanction for conduct which abuses the judicial process.”). Sanctions pursuant to a court’s inherent authority are appropriate upon a finding of “recklessness when combined with an additional factor such as frivolousness, harassment, or an improper purpose.” Fink v. Gomez, 239 F.3d 989, 994 (9th Cir.2001). Dismissal sanctions under a court’s inherent power may be" }, { "docid": "23271140", "title": "", "text": "in which justice may be found and done. Thus, it is beyond peradventure that district courts have broad authority to preserve and protect their essential functions. To ensure that district courts have tools available to protect their truth-seeking process, the Federal Rules of Civil Procedure allow district courts to sanction parties who fail to meet minimum standards of conduct in many different contexts. E.g., Fed.R.Civ.P. 11 (groundless pleadings and other papers); 16(f) (failing to abide by pretrial orders); 26(g), 30(g), 37(d), and 37(g) (discovery abuses), 41(b) (involuntary dismissal for failure to prosecute, failure to follow rules, or failure to obey court order); 45(f) (disobeying subpoena); 56(g) (providing affidavit at summary judgment in bad faith or for delay). Congress has also enacted laws providing additional powers to district courts to police misconduct. E.g., 18 U.S.C. § 401 (contempt power); 28 U.S.C. § 1927 (punishing attorneys who vexatiously multiply proceedings). See generally Chambers v. NASCO, Inc., 501 U.S. 32, 62-63, 111 S.Ct. 2123, 2142, 115 L.Ed.2d 27 (1991) (Kennedy, J., dissenting) (listing sources of sanctioning authority). Nor do those formal rules and legislative dictates exhaust district courts’ power to control misbehaving litigants. To the contrary, the Supreme Court recently reaffirmed that a district court has inherent authority to impose sanctions upon those who would abuse the judicial process. Chambers, 501 U.S. at 43-44, 111 S.Ct. at 2132. In Chambers, a private party challenged a district court’s order making him liable to his opponent for attorneys’ fees of nearly $1 million expended because of the party’s bad faith conduct during the course of litigation. The Court rejected the challenge, finding that the order was an appropriate exercise of the district court’s inherent powers to control litigants. The Supreme Court explained that “Hit has long been understood that ‘certain implied powers must necessarily result to our Courts of justice from the nature of their institution,’ powers “which cannot be dispensed with in a Court, because they are necessary to the exercise of all others.’ ” Id., quoting United States v. Hudson, 11 U.S. (7 Cranch) 32, 3 L.Ed. 259 (1812). Such salutary powers, the" }, { "docid": "22443437", "title": "", "text": "at 770. Significantly, the same test that district courts employ in our circuit in considering motions for dismissal under Rule 41(b) — the Ehrenhaus test— could have been used by the district court here to dismiss the action under its inherent authority, without regard to the availability of a Rule 37 sanction. Chavez v. City of Albuquerque, 402 F.3d 1039, 1043-44 (10th Cir.2005) (Ehrenhaus dismissal analysis applies when district court invokes inherent power to dismiss jury verdict due to plaintiffs perjury at trial); see Chambers v. NASCO, Inc., 501 U.S. 32, 49, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (noting that “inherent power of a court can be invoked even if procedural rules exist which sanction the same conduct”). Consequently, we would be hard pressed to conclude that the district court’s invocation of Ehrenhaus under the Rule 41(b) framework resulted in a miscarriage of justice and rendered its dismissal of the case fundamentally unfair. B. Appropriateness of Dismissal This Court reviews for an abuse of discretion a district court’s decision to dismiss an action for failure to prosecute. E.g., Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1160 (10th Cir.2007) (“We review dismissals under Rule 41(b) for abuse of discretion.”); see Gripe v. City of Enid, Okla., 312 F.3d 1184, 1188 (10th Cir.2002). An abuse of discretion occurs when a district court makes “a clear error of judgment or exceed[s] the bounds of permissible choice in the circumstances.” McEwen v. City of Norman, Parks, 926 F.2d 1539, 1553-54 (10th Cir.1991). This occurs when a district court relies upon an erroneous conclusion of law or upon clearly erroneous findings of fact. See Ashby v. McKenna, 331 F.3d 1148, 1149 (10th Cir.2003). Applying this deferential standard, we affirm the district court’s dismissal order: Rule 41(b) states, “For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against the defendant.” Fed.R.Civ.P. 41(b). The sanction of dismissal with prejudice for failure to prosecute is a “severe sanction,” a measure of last resort." }, { "docid": "23145065", "title": "", "text": "the imposition of Rule 11 sanctions under these circumstances, we do not address whether the factual contentions included in defendants’ filings after October 18, 1993 were based on an “inquiry reasonable under the circumstances” as required by Rule 11(b), or whether any of the costs and attorneys’ fees Byrd was directed to pay were “incurred as a direct result of the [Rule 11] violation” as required by Rule 11(c)(2). B. THE COURT’S INHERENT AUTHORITY Although the district court ordered monetary sanctions only under the authority of Rule 11, it nonetheless sanctioned Byrd’s conduct under its inherent authority. The district court found Byrd’s representations to the court to be disingenuous and misleading. The district court also found that Byrd’s conduct of the ease concerning the releases and production of certain video tapes had been deceptive. We review sanctions imposed under a court’s inherent authority for abuse of discretion. Chaves v. M/V Medina Star, 47 F.3d 153, 156 (5th Cir.1995). However, we have also noted that “the threshold for the use of inherent power sanctions is high.” Id. (citing Reed v. Iowa Marine and Repair Corp., 16 F.3d 82 (5th Cir.1994)). “Indeed, the Supreme Court has cautioned that ‘because of their very potency, inherent powers must be exercised with restraint and discretion.’” Id. (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123, 2132, 115 L.Ed.2d 27 (1991)). More importantly, relevant to this case, this Court has held that “[i]n order to impose sanctions against an attorney under its inherent power, a court must make a specific finding that the attorney acted in ‘bad faith’.” Id.; R.T.C. v. Bright, 6 F.3d 336, 340 (5th Cir.1993); In re Thalheim, 853 F.2d 383, 389 (5th Cir.1988); see also Roadway Express, Inc. v. Piper, 447 U.S. 752, 767, 100 S.Ct. 2455, 2465, 65 L.Ed.2d 488 (1980) (“Similarly, the trial court did not make a specific finding as to whether counsel’s conduct in this case constituted or was tantamount to bad faith, a finding that would have to precede any sanction under the court’s inherent powers.”). Although the district court clearly indicated its displeasure" }, { "docid": "16760619", "title": "", "text": "case of severe sanctions, to give adequate consideration to “whether lesser sanctions would be more appropriate for the particular violation.” Bands, 93 F.3d at 808. When sanctions are ordered under the court’s inherent power, the need to consider less onerous alternatives stems from the intrinsic need for self-restraint in using so powerful a weapon. See, e.g., Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (“Beeause of their very potency, inherent powers must be exercised with restraint and discretion.”)- Indeed, we have noted that in order to justify the use of a court’s inherent power to order default, the court must give “a specific, reasoned explanation for rejecting lesser sanctions, such as fines, attorneys’ fees, or adverse evidentiary rulings.” Shepherd, 62 F.3d at 1478. A district court must state why, in light of the Shea factors, less onerous sanctions are not sufficient. Our task of appellate review of such orders, limited though it may be, cannot be properly exercised if we are not assured that the district court has fully considered whether harm caused by a party’s misconduct may be rectified by sanctions short of default. Cf., e.g., Outley v. City of New York, 837 F.2d 587, 591 (2d Cir.1988) (“Before the extreme sanction of preclusion may be used by the district court, a judge should inquire more fully into the actual difficulties which the violation causes, and must consider less drastic responses.”). Conclusory statements are not enough. Thus, in Shepherd, we held that although the district court had concluded that “ ‘[^Imposition of a lesser sanction would only reward the defendants for their misconduct in this litigation,’ ” id. at 1480 (quoting Shepherd v. ABC, 151 F.R.D. 179, 192 (D.D.C.1992)), the court had not sufficiently explained why lesser sanctions would “ ‘only reward the defendants’ and fail to provide meaningful deterrence and punishment for the misconduct.” Id. Rather, it had noted only that “[it] thought the misconduct was serious and imposing a default judgment was appropriate” without further explanation. Id. We thus felt obliged to remand for reconsideration of alternative sanctions by the" }, { "docid": "23673967", "title": "", "text": "may make such orders in regard to the failure as are just, and among others the following: (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; In Woodson, this court also upheld dismissal of a plaintiffs claim based on the inherent power of a district court. In Wood-son we stated: The federal courts are vested with the inherent power “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” [Link v. Wabash R. Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 1388, 1389, 8 L.Ed.2d 734 (1962).] This power is necessarily incident to the judicial power granted under Article III of the Constitution. [Natural Gas Pipeline, 2 F.3d at 1406.] This includes the power of the court to control its docket by dismissing a case as a sanction for a party’s failure to obey court orders. [In re United Markets Int’l, Inc., 24 F.3d 650, 654 (5th Cir.) cert. denied, 513 U.S. 946, 115 S.Ct. 356, 130 L.Ed.2d 310 (1994).] However, when these inherent powers are invoked, they must be exercised with “restraint and discretion.” [Chambers, 501 U.S. at 44, 111 S.Ct. at 2132.] Dismissing a case with prejudice is a harsh sanction, but we will uphold an involuntary dismissal unless the district court has abused its discretion. [Id. at 54-56, 111 S.Ct. at 2138.] This Court has held that such sanctions should be confined to instances of “bad faith or willful abuse of the judicial process.” [United Markets, 24 F.3d at 654 (quoting Pressey v. Patterson, 898 F.2d 1018, 1021 (5th Cir.1990)).] Woodson, 57 F.3d at 1417 (some citations omitted). Further, “a court must, of course, exercise caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.” •This Court notes that dismissal with prejudice is an “extreme sanction that deprives the litigant of the opportunity" }, { "docid": "19261175", "title": "", "text": "merits; and (5) the availability of less drastic sanctions. Valley Engineers, Inc. v. Electric Engineering Co., 158 F.3d 1051, 1057 (9th Cir.1998). The third and fifth factors, prejudice and availability of less drastic sanctions, are the decisive factors. Id. (noting that factor numbers one and two favor, and number four cuts against, ease dispositive sanctions). 3. Inherent Authority of the Court The inherent power of the Court extends beyond those powers specifically created by statute or rule, and encompasses the power to sanction misconduct by the attorneys or parties before the Court. See, e.g. Chambers v. NASCO, Inc., 501 U.S. 32, 44-45, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (holding that federal courts have the inherent power to “fashion an appropriate sanction for conduct which abuses the judicial process.”). Sanctions pursuant to a court’s inherent authority are appropriate upon a finding of “recklessness when combined with an additional factor such as frivolousness, harassment, or an improper purpose.” Fink v. Gomez, 239 F.3d 989, 994 (9th Cir.2001). Dismissal sanctions under a court’s inherent power may be imposed upon a finding of willfulness, fault or bad faith. See Leon v. IDX Systems Corp., 464 F.3d 951, 958 (9th Cir.2006). Before imposing dismissal sanctions, [a] district court must determine (1) the existence of certain extraordinary circumstances, (2) the presence of willfulness, bad faith, or fault by the offending party, (3) the efficacy of lesser sanctions, (4) the relationship or nexus between the misconduct drawing the dismissal sanction and the matters in controversy in the case, and finally, as optional considerations where appropriate, (5) the prejudice to the party victim of the misconduct, and (6) the government interests at stake. Halaco Eng’g Co. v. Costle, 843 F.2d 376, 380 (9th Cir.1988). Dismissal is only warranted in “extreme circumstances” and “to insure the orderly administration of justice and the integrity of the court’s orders.” Id. Courts may only impose terminating sanctions when no lesser sanction is adequate to cure the prejudice from the offending conduct. In re Napster, Inc. Copyright Litigation, 462 F.Supp.2d 1060, 1072 (N.D.Cal.2006). B. Destruction of Documents This lawsuit involves an allegation" }, { "docid": "21427873", "title": "", "text": "is made in violation of the rule, the court ... shall impose upon the person who made the certification, the party on whose behalf the disclosure, request, response, or objection is made, or both, an appropriate sanction, which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney’s fee. Fed.R.Civ.P. 26(g)(3). Courts have imposed sanctions under Rule 26(g) against parties or attorneys who have made misrepresentations about discovery. See Pope v. Fed. Express Corp., 138 F.R.D. 684 (W.D.Mo.1991) (sanctioning attorney who claimed an obviously falsified document was genuine); Perkinson v. Giibert/Robinson, Inc., 821 F.2d 686 (D.C.Cir.1987) (sanctioning attorney who misled the court about a client’s completion of discovery requests); Nat’l Ass’n of Radiation Survivors v. Turnage, 115 F.R.D. 543 (N.D.Cal.1987) (sanctioning attorney who falsely represented that the client had made an adequate search for requested documents). 8) Inherent Authority This Court also has the inherent power to sanction parties, and this inherent power is not limited to sanction mechanisms created by statute or rule. See Chambers v. NASCO Inc., 501 U.S. 32, 42-43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991). The Court’s inherent powers are those that “are necessary to the exercise of all others.” Roadway Express, 447 U.S. at 764, 100 S.Ct. 2455. Inherent powers include the Court’s power to control its docket by dismissing a case as a sanction for a party’s failure to obey court orders. Gonzalez v. Trinity Marine Group, Inc., 117 F.3d 894, 898 (5th Cir.1997). However, when inherent powers are invoked they must be exercised with “restraint and discretion.” Id. Thus, severe sanctions should be confined to instances of “bad faith or willful abuse of the judicial process.” Id. The severe sanction of dismissal is within the Court’s discretion; “[Consequently, the ‘less severe sanction’ of an assessment of attorney’s fees is undoubtedly within a court’s inherent power as well.” Chambers, 501 U.S. at 45, 111 S.Ct. 2123. Although a court usually imposes sanctions under statutes or rules, “sanctions imposed under a court’s inherent powers are appropriate in egregious cases of bad faith conduct" }, { "docid": "12209797", "title": "", "text": "States v. Britton, 731 F.3d 745, 749-50 (7th Cir.2013). The order is no better, understood as a civil contempt measure. Before holding a person in civil contempt, a district court “must be able to point to a decree from the court which sets forth in specific detail an unequivocal command which the party in contempt violated.” Mañez, 533 F.3d at 591 (quoting Grove Fresh Distribs., Inc. v. John Labatt, Ltd., 299 F.3d 635, 642 (7th Cir.2002)) (internal quotation marks omitted); see also Hornbeck Offshore Servs., L.L.C. v. Salazar, 713 F.3d 787, 792 (5th Cir.2013); John T. ex rel. Paul T. v. Del. Cnty. Intermediate Unit, 318 F.3d 545, 552 (3d Cir.2003). The problem is not that the district judge failed to point to the particular order or orders that Salem violated when he filed the Notice; it is that no such order exists. The Bank suggests that the district court did not hold Salem in contempt, but rather imposed sanctions under its inherent power to correct abuse of proceedings. The Supreme Court, however, has cautioned that the use of inherent powers should be “exercised with restraint and discretion.” Chambers v. NASCO, Inc., 501 U.S. 32, 44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); see also Law v. Siegel, — U.S. -, 134 S.Ct. 1188, 1194, 188 L.Ed.2d 146 (2014) (“Courts’ inherent sanctioning powers are ... subordinate to valid statutory directives and prohibitions.”). At a minimum, the court must be sure of both the factual and legal basis on which it is acting. Here, the record reveals misunderstandings on both fronts. The judge sanctioned Salem “for filing the Notice without any arguable right to do so.” That conclusion rested principally on the proposition that Trade Well had claimed an entitlement only to personal property, not to real property. But Trade Well’s claim was not so limited. Its original complaint, supplemented by the attached inventory, covered both fixtures and personal property. Fixtures, as we already have noted, are considered to be real property under Wisconsin law. And even if the character of the leased items Trade Well was trying to protect was" }, { "docid": "23203189", "title": "", "text": "authority in support of its decision to enter judgment dismissing the complaint and enter judgment by default on the counterclaim. The first question we face, therefore, is to determine if there is any source of authority for the district court’s action. “A district court has broad authority to ... dismiss a case for failure to obey ... orders,” Robson v. Hallenbeck, 81 F.3d 1, 2 (1st Cir.1996). One source of such authority is Fed.R.Civ.P. 41(b). On the other hand, “the rules of civil procedure do not completely describe and limit the power of district courts.” Brockton Sav. Bank v. Peat, Marwick, Mitchell & Co., 771 F.2d 5, 11 (1st Cir.1985). Indeed, “[i]t has long been understood that certain implied powers must necessarily result to our Courts of justice from the nature of their institution, powers which cannot be dispensed with in a Court, because they are necessary to the exercise of all others.” Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (citations omitted). Those inherent powers to sanction parties for litigation abuses include the power to “act sua sponte to dismiss a suit for failure to prosecute,” id. at 44, 111 S.Ct. 2123 (citing Link, 370 U.S. at 630-31, 82 S.Ct. 1386), and to enter default judgment, see Brockton Sav. Bank, 771 F.2d at 12. The order’s lack of citation to the Rules of Civil Procedure makes it difficult to conclude that the court was acting pursuant to its authority under Fed.R.Civ.P. 41(b) to dismiss the complaint for failure to prosecute. Not even Addison’s motions requesting such sanctions identified the rules pursuant to which the court could impose them. Because there is no conflict between the authority granted by these rules and the court’s inherent powers, however, we may assume that the district court employed its inherent powers in an attempt to vindicate the integrity of the proceedings in this ease. We review a district court’s exercise of its inherent powers only for abuse of discretion. See Chambers, 501 U.S. at 44, 111 S.Ct. 2123; National Hockey League v. Metropolitan Hockey Club, Inc.," }, { "docid": "11693161", "title": "", "text": "indicates that a party’s documents may be stricken as a sanction for failure to obtain local counsel, the language of the rule does not preclude alternative remedies when necessary. Moreover, a federal court is granted authority to dismiss an action pursuant to Rule 41(b) for failure to comply with a prior court order. Fed.R.Civ.P. 41(b). Finally, courts have discretion to impose sanctions to protect the judicial process, Chambers v. NASCO, Inc., 501 U.S. 32, 44-45, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991), and the authority of a court to dismiss cases sua sponte for lack of prosecution has long been considered an “inherent power” that is “necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Link v. Wabash Railroad Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). We appreciate the district court’s frustration with the Commission’s lack of diligence and its failures to comply with court directives in the first action. We also recognize that district courts must have wide discretion to manage litigation. “Because district judges have a better understanding of their litigants and their docket, review of managerial decisions such as this one are appropriately deferential.” Johnson v. Kamminga, 34 F.3d 466, 468 (7th Cir.1994). In this case, however, we believe the district court acted beyond its discretionary authority in dismissing sua sponte the first action. In Link, the Supreme Court held that the absence of express notice prior to a sua sponte dismissal with prejudice for failure to prosecute is not an automatic denial of due process. 370 U.S. at 632, 82 S.Ct. 1386. However, in Ball v. City of Chicago, 2 F.3d 752 (7th Cir.1993), we restricted a district court’s dismissal powers in this regard by requiring the court to provide “due warning” to plaintiffs counsel. Although we recognized in Ball that there may be extreme circumstances in which an explicit warning is unnecessary before sua sponte dismissal is used as a sanction, id. at 756; see also Johnson, 34 F.3d at 468 (encouraging, but not requiring, a warning before dismissing" }, { "docid": "23673966", "title": "", "text": "abuse of discretion. Chambers v. NASCO, Inc., 501 U.S. 32, 55, 111 S.Ct. 2123, 2138, 115 L.Ed.2d 27, reh’g denied, 501 U.S. 1269, 112 S.Ct. 12, 115 L.Ed.2d 1097 (1991); Natural Gas Pipeline Co. of America v. Energy Gathering, Inc., 2 F.3d 1397, 1410 (5th Cir.1993) cert. denied, Fox v. Natural Gas Pipeline Co. of America, 510 U.S. 1073, 114 S.Ct. 882, 127 L.Ed.2d 77 (1994). In dismissing Plaintiffs claim, the district court appears to have relied on Fed. R. Civ. Pro. 37(b)(2)(C) and the Fifth Circuit opinion of Woodson v. Surgitek, Inc., 57 F.3d 1406, 1417 (5th Cir.1995), in which a plaintiffs claim was dismissed pursuant to the district court’s inherent powers under Article III. Federal Rule of Civil Procedure 37(b) addresses the issue of sanctions and provides in relevant part: (2) Sanctions by a court in which action is pending. If a party ... fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule ..., 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 striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; In Woodson, this court also upheld dismissal of a plaintiffs claim based on the inherent power of a district court. In Wood-son we stated: The federal courts are vested with the inherent power “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” [Link v. Wabash R. Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 1388, 1389, 8 L.Ed.2d 734 (1962).] This power is necessarily incident to the judicial power granted under Article III of the Constitution. [Natural Gas Pipeline, 2 F.3d at 1406.] This includes the power of the court to control its docket by dismissing a case as a sanction for a party’s failure to obey court orders. [In re United Markets" }, { "docid": "2522717", "title": "", "text": "court’s own initiative....” Id. at 1010 (quoting MHC Inv. Co. v. Racom Corp., 323 F.3d 620, 623 (8th Cir. 2003)). Rule ll’s main purpose “is to deter baseless filings.... Rule 11 imposes a duty on attorneys to certify that they have conducted a reasonable inquiry and have determined that any papers filed with the court are well grounded in fact, legally tenable, and ‘not interposed for any improper purpose.’ ” Cooter & Gell, 496 U.S. at 393, 110 S.Ct. 2447 (quoting Fed. R. Civ. P. 11 (1990)). In addition to its Rule 11 discretion, the district court possesses inherent power “to manage [its] own affairs so as to achieve the orderly and expeditious disposition of cases.” Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)). The district court’s “inherent powers include the ability to supervise and ‘discipline attorneys who appear before it’ and discretion ‘to fashion an appropriate sanction for conduct which abuses the judicial process,’ including assessing attorney fees or dismissing the case.” Wescott Agri-Prods., Inc. v. Sterling State Bank, Inc., 682 F.3d 1091, 1095 (8th Cir. 2012) (quoting Chambers, 501 U.S. at 43, 44-45, 111 S.Ct. 2123). The court’s inherent power “reaches both conduct before the court and that beyond the court’s' confines” to secure compliance with the court’s orders. Chambers, 501 U.S. at 44, 111 S.Ct. 2123. 2. Federal Rule of Civil Procedure Jf.l(a)(l)(A)(ii)—£tipulation of Dismissal Following a voluntary dismissal pursuant to Federal Rule of Civil Procedure 41(a), “district courts may [still] enforce Rule 11.” Cooter & Gell, 496 U.S. at 395, 110 S.Ct. 2447. This is because “a voluntary dismissal does not expunge the [already completed] Rule 11 violation.” Id. Nothing in Rule 41(a) “terminates a district court’s authority to impose sanctions after such a dismissal.” Id. ' Here, the district court stated that “[r]efiling in a more favorable forum and avoiding an adverse decision are improper purposes for dismissal.” In reaching this conclusion, the court rejected the argument that “Rule 41 allows" }, { "docid": "13802439", "title": "", "text": "include taking certain facts as established, prohibiting the introduction of certain evidence, striking pleadings or parts thereof, staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof and/or rendering a judgment by default against the disobedient party. See Fed.R.Civ.P. 37(b)(2); Bonds v. District of Columbia, 93 F.3d 801, 807-08 (D.C.Cir.1996); Shepherd v. American Broadcasting Cos., 62 F,3d 1469, 1474 (D.C.Cir.1995). In addition, Rule 16 of the Federal Rules authorizes a court to sanction a party for failure to follow a scheduling or pretrial order, by imposing any of the sanctions authorized by Rule 37(b) as appropriate. See Fed. R.Civ.P. 16(f). Finally, Rule 41 authorizes a court to dismiss a case for failure to prosecute or to comply with the Federal Rules or any order of the court. See Fed.R.Civ.P. 41(b). 2. The Court’s Inherent Power When the Federal Rules do not provide courts with sufficient authority to protect the integrity of the judicial system and prevent abuses of the judicial process, courts have the inherent power to impose sanctions for abusive litigation practices undertaken in bad faith. See Shepherd v. American Broadcasting Cos., 62 F.3d at 1472. “These powers are ‘governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’ ” Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (quoting Link v. Wabash R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)). Because its inherent judicial power “must be exercised with restraint and discretion,” Chambers v. NASCO, Inc., 501 U.S. at 44, 111 S.Ct. 2123, a district court may use such power to enter a sanction as severe as dismissal or default judgment only if it finds, first, that there is clear and convincing evidence that the fraudulent or bad faith misconduct occurred, and second, that a lesser sanction “would not sufficiently punish and deter the abusive conduct while allowing a full and fair trial on the merits.” Shepherd v. American" } ]

[ { "docid": "10166205", "title": "", "text": "its opening, the Fund objected to payment of compensation on grounds (1) counsel never obtained a court order authorizing their employment, and (2) counsel has allegedly represented conflicting interests in this proceeding. 11 U.S.C. § 327(a). While the objector has not requested removal of counsel for the debtor, they have urged denial of the fees presently requested and reexamination of the payment of approximately $50,000.00 in interim compensation previously awarded. 11 U.S.C. § 328(c). Debtor responds the Code does not require Court approval of counsel for a Chapter 11 debtor in possession and denies any conflict of interest. Further, debtor urges entry of an order approving retention of counsel nunc pro tunc in the event prior approval is necessary. Objector questions the Court’s authority to enter a nunc pro tunc order in these circumstances. Four issues are presented for resolution: 1. Is a Court order approving retention of legal counsel for a Chapter 11 debtor in possession a prerequisite to the allowance of compensation? 2. Does the Court have authority to enter a nunc pro tunc order approving retention, and, if so, is such an order appropriate? 3. Assuming a nunc pro tunc order may be entered, should counsel’s compensation be denied in whole or in part on grounds of conflict of interest? 4. Should payment be deferred until the confirmation of a Chapter 11 plan? Attorneys for a debtor in possession must have an order approving their appointment before they are entitled to receive compensation from the estate. Matter of Laurent Watch Co., 539 F.2d 1231, 1232 (9th Cir.1976); Matter of Triangle Chemicals, 697 F.2d 1280 (5th Cir.1983); In re Wolsky, 35 B.R. 481 (Bankr.D.N.D.1983); In re Mork, 19 B.R. 947 (Bankr.D.Minn.1982); 11 U.S.C. §§ 327(a), 1107(a). While the debtor in possession has requested in the alternative for appointment nunc pro tunc, there is apparently no compliance with Rule 2014(a), F.Bk.R. (1983) (formally Rule 215(a)). That Rule requires an application reflecting the specific facts requiring employment, the name of the person to be employed, reasons for the selection, the professional services to be rendered, any proposed arrangement for compensation," } ]

[ { "docid": "17980588", "title": "", "text": "U.S.C. § 327(a) permits the trustee’s employment of professional persons to represent or assist an estate on the following conditions: (a) Except as otherwise provided in this section, the trustee, with the court’s approval, may employ one or more attorneys, accountants, appraisers, auctioneers, or other professional persons that do not hold or represent an interest adverse to the estate, and that are disinterested persons, to represent or assist the trustee in carrying out the trustee’s duties under this title. 11 U.S.C. § 327(a) (1979 and supp. 1985) (emphasis added) A disinterested person is defined in § 101, Subd. 13(A) and (E) of the Bankruptcy Code as: (13) ‘disinterested person’ means person that— (A) is not a creditor, an equity security holder, or an insider; ... (E) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor or an investment banker specified in subparagraph (B) or (C) of this paragraph, or for any other reason; 11 U.S.C. § 101(13)(A) and (E). Unfortunately, Mr. McEwen does not qualify as a “disinterested person”. He was a prepetition creditor of these estates, and he held a mortgage on the Debtors’ real property to secure payment of prepetition and post-petition services. This placed him in an untenable position adverse to both the Debtors and the other interests in the cases. When an attorney representing a bankruptcy estate does not qualify as a disinterested person, he is not ordinarily entitled to be employed by the estate or receive any compensation. See In re Leisure Dynam ics, Inc., 38 B.R. 121 (D.Minn.1983). The Court must, therefore, disallow Mr. McEwen any compensation for his post-petition work. Mr. McEwen did, however, do some work prior to the filing of the petition in preparing the petitions and schedules in each case. These were reasonable and necessary services provided for these estates. Mr. McEwen is not disqualified to receive compensation for these services since they were rendered prior to the time the" }, { "docid": "3712485", "title": "", "text": "The application was considered by the court at a hearing on October 11, at which all parties were represented. At the same hearing, the court discussed whether McEwen had to file an application for special purpose on the state court suit, which had been completed by this time. Although McEwen had not previously filed this application, he did so on or after October 11. On November 2, 1984, the court approved the application for McEwen’s appointment as attorney for the debtors in the bankruptcy cases. The court, however, never approved the application for special purpose. McEwen began to prepare the debtors’ petitions in mid-December of 1983. In order to secure payments for his work on the bankruptcy cases, McEwen obtained an $8,000 mortgage on real estate owned by debtor Lyle Pierce and his wife Elaine, who was not a party in the bankruptcy cases. McEwen recorded the mortgage on January 6, 1984, immediately before he filed the debtors’ petitions. McEwen, however, did not disclose the mortgage in his application for employment filed on October 11, nor did he disclose it in his statement of attorney filed with the petitions. From December 1984 through May 1985, the creditors made a series of motions for relief from stay and motions to dismiss, all of which were denied. Soon thereafter, the debtors were allowed to convert their cases to Chapter 7 cases. On June 19, 1985, McEwen submitted two applications to the bankruptcy court for attorneys’ fees — one for $33,-352.00 for work on the bankruptcy cases, and the other for $28,201.02 for work on the state case. The Chapter 7 trustee objected to all of these fees. The United States Trustee objected to the bankruptcy- related fees on the ground that they were excessive. On October 11, 1985, the bankruptcy court issued an order denying most of McEwen’s claims for compensation. As to the state court fees, the court held that McEwen was not entitled to compensation because the costs of that litigation were not administrative expenses of the estate. In re Pierce, 53 B.R. 825, 827 (Bankr.D.Minn.1985). Although McEwen also argued" }, { "docid": "3712505", "title": "", "text": "real or personal property. See Minn. Stat. § 481.13(4). Whether McEwen’s interest is classified as a lien on a money judgment or otherwise, it is clear that the lien is on personal property of the client, albeit an intangible interest. The statute, however, makes no distinctions between intangible and tangible personal property, but requires that notice of liens on all types of personal property must be recorded. . Although McEwen did not do so, the district court noted that he could also have established his lien under Minn.Stat. § 481.13(3). See Minn.Stat. § 481.13(3) (attorney may establish lien in summary proceeding or in separate equitable action). . As the district court noted, the bankruptcy court appeared to question the reasonableness of McEwen’s state court fees. The bankruptcy court noted that of the four grounds upon which McEwen’s state court appeal was based, three were stricken by the appellate court. The remaining basis for appeal involved a computation error which the bankruptcy court noted could have been corrected by the trial court, thus making the appeal unnecessary. See In re Pierce, 53 B.R. at 827 n. 4. As a result of the appeal, however, McEwen had a claim on one-half of the proceeds, rather than one-third, under the contingent fee contract. Additionally, even though the judgment on appeal was slightly larger, the debtors received less after the appeal because of the increased contingent fee. . Pursuant to 11 U.S.C. § 1107(a), the debtors-in-possession have the same authority as the trustee does under 11 U.S.C. § 327(a). . Although not cited by the bankruptcy court, it is clear that the court had the authority to deny McEwen’s post-petition fees pursuant to 11 U.S.C. § 328(c), which provides: Except as provided in Section 327(c), 327(e), or 1107(b) of this title, the court may deny allowance of compensation for services and reimbursement of expenses of a professional person under section 327 or 1103 of this title if, at any time during such professional’s employment under section 327 or 1103 of this title, such professional person is not a disinterested person, or represents or holds" }, { "docid": "3712500", "title": "", "text": "of the bankruptcy court denying all of McEwen’s claims for compensation except for the $8,000 awarded as pre-petition administrative expenses of the estate. . The Honorable Harry H. MacLaughlin, United States District Judge for the District of Minnesota, Fourth Division. . The bankruptcy court's decision is reported as In re Pierce, 53 B.R. 825 (Bankr.D.Minn.1985) (O’Brien, J.). The cases were originally assigned to the Honorable William A. Hill, Bankruptcy Judge for North Dakota, who was handling Northwestern Minnesota cases at the time. The cases were subsequently transferred to the bankruptcy court in Minnesota, where they were briefly assigned to the Honorable John Connelly and then to the Honorable Margaret A. Mahoney, before final assignment to the Honorable Dennis D. O’Brien. . The bankruptcy debtors in this case are Lyle Pierce and his three sons, Michael, Wayne, and Kevin. The debtors filed their bankruptcy petitions individually and as partners in Pierce Farms, a family farm partnership. . In addition to representing the debtors (Pierce Farms), McEwen also represented Agassiz Farms, a venture owned by Lyle Pierce’s daughter. . Although McEwen appealed the case on four different grounds, the appeals court found that the only error the trial court made involved a slight miscalculation in damages. See National Farmers, 351 N.W.2d at 370. The amended award for both plaintiffs amounted to $66,802, of which $45,848 was awarded to the Pierce Farms debtors. . McEwen alleges that he filed the application for his employment nunc pro tunc, although nowhere on its face does the application request this type of approval. Additionally, the bankruptcy court’s order stated only that McEwen was \"authorized to be employed by the [four] debtors as their attorney under a general retainer, subject to the limitations on compensation provided by 11 USC 328.” Order Authorizing Employment of Attorney Under General Retainer (Bankr.D.Minn. Nov. 2, 1985) (Connelly, J.). . Along with filing the bankruptcy petitions on January 6, 1984, McEwen filed a fee disclosure statement for each debtor. In these statements, McEwen stated that he had received or was to receive $2,000 from each debtor. The statements made no mention of" }, { "docid": "3712499", "title": "", "text": "it would deny his post-petition fees. Because denial of compensation is within the court’s discretion, see 11 U.S.C. § 328(c), and because we perceive no abuse of that discretion, we affirm the bankruptcy court’s denial of McEwen’s post-petition fees. Finally, as alluded to previously, it is apparent that because of our affirmance on this issue, McEwen’s claim that he should be awarded his bankruptcy fees nunc pro tunc for the period preceding his application of employment is, in effect, mooted. Even if we had determined that the bankruptcy court abused its discretion in not issuing the order nunc pro tunc, although we would probably not do so under the facts of this case and in light of the deference given to the bankruptcy courts in this area, see J.L. Lavender v. Wood Law Firm, 785 F.2d 247 (8th Cir.1986), to allow the total amount of the bankruptcy-related fees would obviously conflict with our prior determination that McEwen is not entitled to his post-petition fees. III. CONCLUSION. Based on the foregoing analysis, we affirm the order of the bankruptcy court denying all of McEwen’s claims for compensation except for the $8,000 awarded as pre-petition administrative expenses of the estate. . The Honorable Harry H. MacLaughlin, United States District Judge for the District of Minnesota, Fourth Division. . The bankruptcy court's decision is reported as In re Pierce, 53 B.R. 825 (Bankr.D.Minn.1985) (O’Brien, J.). The cases were originally assigned to the Honorable William A. Hill, Bankruptcy Judge for North Dakota, who was handling Northwestern Minnesota cases at the time. The cases were subsequently transferred to the bankruptcy court in Minnesota, where they were briefly assigned to the Honorable John Connelly and then to the Honorable Margaret A. Mahoney, before final assignment to the Honorable Dennis D. O’Brien. . The bankruptcy debtors in this case are Lyle Pierce and his three sons, Michael, Wayne, and Kevin. The debtors filed their bankruptcy petitions individually and as partners in Pierce Farms, a family farm partnership. . In addition to representing the debtors (Pierce Farms), McEwen also represented Agassiz Farms, a venture owned by Lyle Pierce’s" }, { "docid": "3712507", "title": "", "text": "an interest adverse to the interest of the estate with respect to the matter on which such professional person is employed. 11 U.S.C. § 328(c) (emphasis added). Although the bankruptcy court denied McEwen’s post-petition fees, the court concluded that McEwen was not disqualified to receive compensation for his work in preparing the debtors’ petitions and schedules since this work was done before filing and before the requirements of Section 327(a) became applicable. In re Pierce, 53 B.R. at 829 (citing Kotts v. Westphal, 746 F.2d 1329, 1330 (8th Cir.1984)). McEwen argues, as he did before the district court, that he cannot be denied compensation under Section 328(c) solely because of his prior employment by the debtors on the state case. See 11 U.S.C. § 1107(b) (person may not be disqualified from employment under Section 327(a) solely because of that person’s employment by or representation of the debtor before the commencement of the case). Although this is a correct statement of law, the bankruptcy court did not deny McEwen’s fees solely because he represented the debtors in a different case. Rather, the court also stated that McEwen was disinterested because the mortgage placed him in a position adverse to other parties. In re Pierce, 53 B.R. at 828; see also In re Leisure Dynamics, Inc., 32 B.R. at 755 (attorneys not disqualified solely because of their prepetition representation of the creditor, but also because they were insiders). . Although the Martin court awarded the attorneys their fees, the only reason it did so was because the attorneys fully disclosed the mortgage to the court at the commencement of the case. See In re Martin, 59 B.R. at 140. We presume that if the attorneys had failed to disclose the mortgage, as McEwen did here, the court may have denied the attorneys their fees. . McEwen claims that the trustee and the bankruptcy court were fully aware of the mortgage at the time he filed his application for employment, and that there was no objection made to his employment at that time. It appears to this court, however, that the only knowledge" }, { "docid": "17980589", "title": "", "text": "of this paragraph, or for any other reason; 11 U.S.C. § 101(13)(A) and (E). Unfortunately, Mr. McEwen does not qualify as a “disinterested person”. He was a prepetition creditor of these estates, and he held a mortgage on the Debtors’ real property to secure payment of prepetition and post-petition services. This placed him in an untenable position adverse to both the Debtors and the other interests in the cases. When an attorney representing a bankruptcy estate does not qualify as a disinterested person, he is not ordinarily entitled to be employed by the estate or receive any compensation. See In re Leisure Dynam ics, Inc., 38 B.R. 121 (D.Minn.1983). The Court must, therefore, disallow Mr. McEwen any compensation for his post-petition work. Mr. McEwen did, however, do some work prior to the filing of the petition in preparing the petitions and schedules in each case. These were reasonable and necessary services provided for these estates. Mr. McEwen is not disqualified to receive compensation for these services since they were rendered prior to the time the petition was filed and before the requirements of § 327 became applicable. See Kotts v. Westphal, 746 F.2d 1329 (8th Cir.1984). The reasonable value for these services is $2,000.00 in each case. The services benefited both the Chapter 11 and Chapter 7 estates. Therefore, the Court will allow $2,000.00 as an administrative expense against each Chapter 7 estate. IT IS ORDERED as follows: 1. All attorney’s fees and costs claimed for prepetition work in prosecuting the state court action on behalf of the Pierce family are disallowed as an administrative expense, and the claim shall be treated as an unsecured claim. 2. All fees and costs claimed for post-petition work are denied. 3. Neil McEwen is hereby awarded $2,000.00 in each of these bankruptcy cases as and for reasonable and necessary charges against the Chapter 7 estates. 4. The attorney’s lien claimed by Neil McEwen in the estates’ proceeds of the state court action against National Farmers Union Property and Casualty Insurance Company is hereby avoided and is of no force or effect. . Mr." }, { "docid": "3712486", "title": "", "text": "nor did he disclose it in his statement of attorney filed with the petitions. From December 1984 through May 1985, the creditors made a series of motions for relief from stay and motions to dismiss, all of which were denied. Soon thereafter, the debtors were allowed to convert their cases to Chapter 7 cases. On June 19, 1985, McEwen submitted two applications to the bankruptcy court for attorneys’ fees — one for $33,-352.00 for work on the bankruptcy cases, and the other for $28,201.02 for work on the state case. The Chapter 7 trustee objected to all of these fees. The United States Trustee objected to the bankruptcy- related fees on the ground that they were excessive. On October 11, 1985, the bankruptcy court issued an order denying most of McEwen’s claims for compensation. As to the state court fees, the court held that McEwen was not entitled to compensation because the costs of that litigation were not administrative expenses of the estate. In re Pierce, 53 B.R. 825, 827 (Bankr.D.Minn.1985). Although McEwen also argued that he was entitled to his state fees because he had an attorney’s lien in the proceeds of the state court judgment, the court held that because McEwen failed to perfect the lien pursuant to Minn.Stat. § 481.13, the trustee could avoid it under 11 U.S.C. § 545(2). Id. at 827-28. As to the bankruptcy-related fees, the court held that McEwen did not qualify for employment under 11 U.S.C. § 327(a) because he did not meet the definition of a disinterested person. Id. at 828. Accordingly, the court denied McEwen’s fees for his post-petition work on the bankruptcy cases. Id. at 828-29.® The court did, however, award McEwen $8,000 in administrative expenses as the reasonable value of his prepetition services rendered in the bankruptcy cases. Id. at 829. On March 2, 1986, the district court entered an order affirming the order of the bankruptcy court. This appeal followed. II. DISCUSSION. At the outset, we note that the bankruptcy court’s findings of fact are subject to the clearly erroneous standard, but its legal conclusions are subject" }, { "docid": "3712487", "title": "", "text": "that he was entitled to his state fees because he had an attorney’s lien in the proceeds of the state court judgment, the court held that because McEwen failed to perfect the lien pursuant to Minn.Stat. § 481.13, the trustee could avoid it under 11 U.S.C. § 545(2). Id. at 827-28. As to the bankruptcy-related fees, the court held that McEwen did not qualify for employment under 11 U.S.C. § 327(a) because he did not meet the definition of a disinterested person. Id. at 828. Accordingly, the court denied McEwen’s fees for his post-petition work on the bankruptcy cases. Id. at 828-29.® The court did, however, award McEwen $8,000 in administrative expenses as the reasonable value of his prepetition services rendered in the bankruptcy cases. Id. at 829. On March 2, 1986, the district court entered an order affirming the order of the bankruptcy court. This appeal followed. II. DISCUSSION. At the outset, we note that the bankruptcy court’s findings of fact are subject to the clearly erroneous standard, but its legal conclusions are subject to de novo review. In re Martin, 761 F.2d 472, 474 (8th Cir.1985). A. State Court Fees. McEwen does not appeal the bankruptcy court’s denial of his state court fees on the ground that they did not qualify as administrative expenses. Rather, McEwen argues that the district court erred in holding that he had to file notice of his attorney’s lien under Minn.Stat. § 481.13 in order to perfect his interest. He therefore maintains that his lien was not subject to the trustee’s avoidance powers under 11 U.S.C. § 545(2). Under 11 U.S.C. § 545(2), the trustee in bankruptcy has the power to avoid a statutory lien on a debtor’s property if the lien “is not perfected or enforceable at the time of the commencement of the case against a bona fide purchaser that purchases such property at the time of the commencement of the case, whether or not such a purchaser exists.” 11 U.S.C. § 545(2) (1979 & Supp.1985). This section gives the trustee the status of a hypothetical bona fide purchaser as of" }, { "docid": "3712506", "title": "", "text": "unnecessary. See In re Pierce, 53 B.R. at 827 n. 4. As a result of the appeal, however, McEwen had a claim on one-half of the proceeds, rather than one-third, under the contingent fee contract. Additionally, even though the judgment on appeal was slightly larger, the debtors received less after the appeal because of the increased contingent fee. . Pursuant to 11 U.S.C. § 1107(a), the debtors-in-possession have the same authority as the trustee does under 11 U.S.C. § 327(a). . Although not cited by the bankruptcy court, it is clear that the court had the authority to deny McEwen’s post-petition fees pursuant to 11 U.S.C. § 328(c), which provides: Except as provided in Section 327(c), 327(e), or 1107(b) of this title, the court may deny allowance of compensation for services and reimbursement of expenses of a professional person under section 327 or 1103 of this title if, at any time during such professional’s employment under section 327 or 1103 of this title, such professional person is not a disinterested person, or represents or holds an interest adverse to the interest of the estate with respect to the matter on which such professional person is employed. 11 U.S.C. § 328(c) (emphasis added). Although the bankruptcy court denied McEwen’s post-petition fees, the court concluded that McEwen was not disqualified to receive compensation for his work in preparing the debtors’ petitions and schedules since this work was done before filing and before the requirements of Section 327(a) became applicable. In re Pierce, 53 B.R. at 829 (citing Kotts v. Westphal, 746 F.2d 1329, 1330 (8th Cir.1984)). McEwen argues, as he did before the district court, that he cannot be denied compensation under Section 328(c) solely because of his prior employment by the debtors on the state case. See 11 U.S.C. § 1107(b) (person may not be disqualified from employment under Section 327(a) solely because of that person’s employment by or representation of the debtor before the commencement of the case). Although this is a correct statement of law, the bankruptcy court did not deny McEwen’s fees solely because he represented the debtors" }, { "docid": "3712508", "title": "", "text": "in a different case. Rather, the court also stated that McEwen was disinterested because the mortgage placed him in a position adverse to other parties. In re Pierce, 53 B.R. at 828; see also In re Leisure Dynamics, Inc., 32 B.R. at 755 (attorneys not disqualified solely because of their prepetition representation of the creditor, but also because they were insiders). . Although the Martin court awarded the attorneys their fees, the only reason it did so was because the attorneys fully disclosed the mortgage to the court at the commencement of the case. See In re Martin, 59 B.R. at 140. We presume that if the attorneys had failed to disclose the mortgage, as McEwen did here, the court may have denied the attorneys their fees. . McEwen claims that the trustee and the bankruptcy court were fully aware of the mortgage at the time he filed his application for employment, and that there was no objection made to his employment at that time. It appears to this court, however, that the only knowledge that these parties would have of the mortgage would be from the statements filed by the debtors on January 30, 1984, and in schedule B-3 which was filed soon thereafter. Neither the bankruptcy court or the trustee, however, should have the awesome responsibility of combing through the often voluminous materials that are filed with the court in order to ascertain every possible conflict of interest in a particular case, especially when a professional’s potential conflicts are required to be disclosed in the application itself. See Bankruptcy Rule 2014(a). In fact, we suspect that this was part of the reason for enactment of the disclosure requirements. . McEwen also may have violated Bankruptcy Rule 9011(a) when he signed the affidavit accompanying the application for his employment, and the affidavit stated that to the best of his knowledge he held no interest adverse to the estate. See In re Gray, 64 B.R. at 508-09." }, { "docid": "3712496", "title": "", "text": "any direct or indirect relationship to, connection with, or interest in, the debtor * * *[.] 11 U.S.C. §§ 101(13)(A), (E) (emphasis added). Specifically, the court held that McEwen was not disinterested because “[h]e was a prepetition creditor of these estates, and he held a mortgage on the Debtors’ real property to secure payment of prepetition and post-petition services.” In re Pierce, 53 B.R. at 828. The court also stated that this placed McEwen “in an untenable position adverse to both the Debtors and other interests in the cases.” Id. Because McEwen failed to meet the definition of a disinterested person, and thus failed to qualify for employment under Section 327(a), the court denied McEwen’s post-petition fees. Id. at 828-29 (citing In re Leisure Dynamics, Inc., 33 B.R. 121 (D.Minn.1983)). Despite the express statutory language disqualifying an attorney who is a creditor, McEwen argues that these rules should not be applied blindly, and that the test for disinterestedness should be whether the attorney possesses an interest that would color his independent judgment and impartial attitude. See In re O’Connor, 52 B.R. 892, 899 (Bankr.W.D.Okla.1985). Although McEwen’s argument is not without merit, the intent of the statute is clear; if a professional is a creditor, then that person is not disinterested under 11 U.S.C. § 101(13) and is subject to disqualification under Section 327(a). As this court recent ly noted, the professional’s complaint in this area lies with Congress, not the courts. In re Daig Corp., 799 F.2d 1251, 1253 n. 5 (8th Cir.1986), aff'g, 48 B.R. 121 (Bankr.D.Minn.1985). Moreover, there are two other grounds upon which the court could have denied McEwen’s fees. First, under Section 327(a), an attorney may be disqualified not only because he or she is not disinterested, but also because the attorney holds an “interest adverse to the estate.” 11 U.S.C. § 327(a). At least one court has held that an attorney’s pre-petition mortgage on the debtor’s real estate constitutes an “adverse interest” under Section 327(a). In re Martin, 59 B.R. 140,143 (Bankr.D.Maine 1986); see also In re Roberts, 46 B.R. 815, 849 (Bankr.D.Utah 1985) (attorney’s" }, { "docid": "3712495", "title": "", "text": "is essentially moot. The bankruptcy court, with the district court affirming, held that McEwen was not entitled to compensation for his post-petition work because he was not a disinterested person. Under 11 U.S.C. § 327(a), the trustee could employ, with the court’s approval, an attorney who did “not hold or represent an interest adverse to the estate, and [was a] disinterested person * * 11 U.S.C. § 327(a). Although framed conjunctively, the conditions are applied disjunctively; failure to meet either will result in disqualification. See In re Leisure Dynamics, Inc., 32 B.R. 753, 754 (Bankr.D.Minn.) (supplemental opinion to 32 B.R. 751), aff'd, 33 B.R. 121 (D.Minn.1983). The bankruptcy court found that McEwen failed to meet two parts of the definition of a disinterested person: (13) “disinterested person” means person that— (A) is not a creditor, an equity security holder, or an insider; * * * * * * (E) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of any direct or indirect relationship to, connection with, or interest in, the debtor * * *[.] 11 U.S.C. §§ 101(13)(A), (E) (emphasis added). Specifically, the court held that McEwen was not disinterested because “[h]e was a prepetition creditor of these estates, and he held a mortgage on the Debtors’ real property to secure payment of prepetition and post-petition services.” In re Pierce, 53 B.R. at 828. The court also stated that this placed McEwen “in an untenable position adverse to both the Debtors and other interests in the cases.” Id. Because McEwen failed to meet the definition of a disinterested person, and thus failed to qualify for employment under Section 327(a), the court denied McEwen’s post-petition fees. Id. at 828-29 (citing In re Leisure Dynamics, Inc., 33 B.R. 121 (D.Minn.1983)). Despite the express statutory language disqualifying an attorney who is a creditor, McEwen argues that these rules should not be applied blindly, and that the test for disinterestedness should be whether the attorney possesses an interest that would color his independent judgment and impartial attitude." }, { "docid": "3712493", "title": "", "text": "This claim, however, is without merit. Under Section 545(2) of the Code, the trustee has the power to avoid a statutory lien if the lien “is not perfected or enforceable at the commencement of the case against a bona fide purchaser * * 11 U.S.C. § 545(2). It is clear, therefore, that notice is irrelevant in this ease; McEwen’s lien was never perfected or enforceable against the trustee, who is given the status of a hypothetical bona fide purchaser as of the date the petitions are filed. See 4 Collier on Bankruptcy TI 545.04[2], at 545-19. Finally, McEwen argues that it would be inequitable to deny him the fruits of his labor. The bankruptcy court, however, found that this was not a case where equitable considerations should apply. In re Pierce, 53 B.R. at 827 n. 4. We find, as did the district court, that the bankruptcy court did not abuse its discretion in declining to apply its equitable powers in this case. We further note that the effect of the bankruptcy court’s order is not to totally deny McEwen’s fees and expenses, but rather, to relegate his status in claiming those fees to that of the other general, unsecured creditors. In summary, we hold that the bankruptcy court did not err in allowing the trustee to avoid McEwen’s lien. Because McEwen failed to file notice of his lien under Minn. Stat. § 481.13, the lien was either unperfected, or not established and therefore unenforceable. Thus, the trustee could avoid the lien under 11 U.S.C. § 545(2). B. Bankruptcy-Related Fees. McEwen argues that, under the facts of this case, his prepetition mortgage did not disqualify him from employment as a disinterested person. Additionally, McEwen argues that he should be awarded his fees nunc pro tunc prior to his order of appointment because he was under the mistaken impression that an order had been filed, and because he worked for the debtors during this period without objection from any of the parties involved. Because of our conclusions as to the first claim, however, it will become evident that the second claim" }, { "docid": "18607855", "title": "", "text": "328.04 at 328-34 (15th ed. 1994) (footnote omitted). We are satisfied that § 328(c) was intended to give the bankruptcy court some discretion with respect to attorney fee awards when the attorney loses his disinterested status during the course of administering a bankrupt’s estate. The permissive “may deny” language does not require the court to deny legal fees or disgorge previously paid fees in all eases. In exercising the discretion granted by the statute we think the court should lean strongly toward denial of fees, and if the past benefit to the wrongdoer fiduciary can be quantified, to require disgorgement of compensation previously paid that fiduciary even before the conflict arose. This approach is most in keeping with common law fiduciary principles and best serves the deterrence purpose of the rule. See Continental Ill. Nat’l Bank & Trust v. Charles N. Wooten, Ltd. (Matter of Evangeline Ref. Co.), 890 F.2d 1312, 1322-24 (5th Cir.1989) (fraudulent fee application deserves denial of all compensation); Hunter Savings Ass’n v. Baggott Law Offices Co. (In re Georgetown of Kettering, Ltd.), 750 F.2d 536, 540-41 (6th Cir.1984) (all fees denied when actual conflict of interest existed). Here the bankruptcy judge purported to utilize his discretion in making his fee decision. We are constrained to determine only whether he abused that discretion. See In re Anderson, 936 F.2d at 203. An abuse of discretion occurs when “the appellate court has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” McEwen v. City of Norman, 926 F.2d 1539, 1553-54 (10th Cir.1991) (quoting United States v. Ortiz, 804 F.2d 1161, 1164 n. 2 (10th Cir.1986)). Although there is little indication why Congress made denial of fees in conflict situations discretionary, it appears to be a recognition that a simple denial rule might not be appropriate in modern complex situations. In making our review we must first recognize that the compensation granted by the bankruptcy and district courts for the post-conflict period was not for English’s services but for the services of other" }, { "docid": "3712497", "title": "", "text": "See In re O’Connor, 52 B.R. 892, 899 (Bankr.W.D.Okla.1985). Although McEwen’s argument is not without merit, the intent of the statute is clear; if a professional is a creditor, then that person is not disinterested under 11 U.S.C. § 101(13) and is subject to disqualification under Section 327(a). As this court recent ly noted, the professional’s complaint in this area lies with Congress, not the courts. In re Daig Corp., 799 F.2d 1251, 1253 n. 5 (8th Cir.1986), aff'g, 48 B.R. 121 (Bankr.D.Minn.1985). Moreover, there are two other grounds upon which the court could have denied McEwen’s fees. First, under Section 327(a), an attorney may be disqualified not only because he or she is not disinterested, but also because the attorney holds an “interest adverse to the estate.” 11 U.S.C. § 327(a). At least one court has held that an attorney’s pre-petition mortgage on the debtor’s real estate constitutes an “adverse interest” under Section 327(a). In re Martin, 59 B.R. 140,143 (Bankr.D.Maine 1986); see also In re Roberts, 46 B.R. 815, 849 (Bankr.D.Utah 1985) (attorney’s pre-petition debt for legal fees for services not rendered in connection with bankruptcy case would constitute an adverse interest). Thus, the court could have denied compensation on this ground. Second, by failing to disclose the secured mortgage in either the statement of attorney or in the application for employment filed on October 11, 1984, McEwen committed a classic violation of the disclosure requirements embodied in 11 U.S.C. § 328(a) and Bankruptcy Rule 2014(a). Many courts have denied compensation to professionals where, in addition to other factors, they failed to previously disclose a relationship with the debtor that could have presented a potential area of conflict. See, e.g., In re Gray, 64 B.R. 505, 508 (Bankr.E.D.Mich.1986); In re Roberts, 46 B.R. at 850; In re Patterson, 53 B.R. 366, 373, 374 (Bankr.D.Neb.1985); In re Guy Apple Masonry Contractor, Inc., 45 B.R. 160, 162-63, 168 (Bankr.D.Ariz.1984). In summary, we find that the bankruptcy court could have denied McEwen his fees on any of the three aforementioned grounds. The court, however, determined that because McEwen was not disinterested," }, { "docid": "3712498", "title": "", "text": "pre-petition debt for legal fees for services not rendered in connection with bankruptcy case would constitute an adverse interest). Thus, the court could have denied compensation on this ground. Second, by failing to disclose the secured mortgage in either the statement of attorney or in the application for employment filed on October 11, 1984, McEwen committed a classic violation of the disclosure requirements embodied in 11 U.S.C. § 328(a) and Bankruptcy Rule 2014(a). Many courts have denied compensation to professionals where, in addition to other factors, they failed to previously disclose a relationship with the debtor that could have presented a potential area of conflict. See, e.g., In re Gray, 64 B.R. 505, 508 (Bankr.E.D.Mich.1986); In re Roberts, 46 B.R. at 850; In re Patterson, 53 B.R. 366, 373, 374 (Bankr.D.Neb.1985); In re Guy Apple Masonry Contractor, Inc., 45 B.R. 160, 162-63, 168 (Bankr.D.Ariz.1984). In summary, we find that the bankruptcy court could have denied McEwen his fees on any of the three aforementioned grounds. The court, however, determined that because McEwen was not disinterested, it would deny his post-petition fees. Because denial of compensation is within the court’s discretion, see 11 U.S.C. § 328(c), and because we perceive no abuse of that discretion, we affirm the bankruptcy court’s denial of McEwen’s post-petition fees. Finally, as alluded to previously, it is apparent that because of our affirmance on this issue, McEwen’s claim that he should be awarded his bankruptcy fees nunc pro tunc for the period preceding his application of employment is, in effect, mooted. Even if we had determined that the bankruptcy court abused its discretion in not issuing the order nunc pro tunc, although we would probably not do so under the facts of this case and in light of the deference given to the bankruptcy courts in this area, see J.L. Lavender v. Wood Law Firm, 785 F.2d 247 (8th Cir.1986), to allow the total amount of the bankruptcy-related fees would obviously conflict with our prior determination that McEwen is not entitled to his post-petition fees. III. CONCLUSION. Based on the foregoing analysis, we affirm the order" }, { "docid": "3712501", "title": "", "text": "daughter. . Although McEwen appealed the case on four different grounds, the appeals court found that the only error the trial court made involved a slight miscalculation in damages. See National Farmers, 351 N.W.2d at 370. The amended award for both plaintiffs amounted to $66,802, of which $45,848 was awarded to the Pierce Farms debtors. . McEwen alleges that he filed the application for his employment nunc pro tunc, although nowhere on its face does the application request this type of approval. Additionally, the bankruptcy court’s order stated only that McEwen was \"authorized to be employed by the [four] debtors as their attorney under a general retainer, subject to the limitations on compensation provided by 11 USC 328.” Order Authorizing Employment of Attorney Under General Retainer (Bankr.D.Minn. Nov. 2, 1985) (Connelly, J.). . Along with filing the bankruptcy petitions on January 6, 1984, McEwen filed a fee disclosure statement for each debtor. In these statements, McEwen stated that he had received or was to receive $2,000 from each debtor. The statements made no mention of the mortgage, although the bankruptcy court indicated that the total $8,000 was secured by the mortgage. See In re Pierce, 53 B.R. at 825-26. The only mention of the mortgage in any statements filed with the bankruptcy court appears to be in certain statements filed by the debtors on January 30, 1984, and later in schedule B-3, where the debtors stated that certain lake property had been assigned to McEwen. No dollar amount, however, was given in either of these forms. . We note that in his supervisory capacity, the United States Trustee has standing to object to and challenge various matters such as allegedly excessive fee applications. See 28 U.S.C. § 586; Bankruptcy Rules X-1008(a)(3), -1009(a). . In a footnote, the court noted that it had flexibility under 11 U.S.C. § 105 to authorize a pre-petition creditor attorney to represent the estate. However, the court further noted that the prerequisites to issuing such an order had not been met. In re Pierce, 53 B.R. at 829 n. 8. . Upon the trustee’s cross-appeal, the" }, { "docid": "3712494", "title": "", "text": "not to totally deny McEwen’s fees and expenses, but rather, to relegate his status in claiming those fees to that of the other general, unsecured creditors. In summary, we hold that the bankruptcy court did not err in allowing the trustee to avoid McEwen’s lien. Because McEwen failed to file notice of his lien under Minn. Stat. § 481.13, the lien was either unperfected, or not established and therefore unenforceable. Thus, the trustee could avoid the lien under 11 U.S.C. § 545(2). B. Bankruptcy-Related Fees. McEwen argues that, under the facts of this case, his prepetition mortgage did not disqualify him from employment as a disinterested person. Additionally, McEwen argues that he should be awarded his fees nunc pro tunc prior to his order of appointment because he was under the mistaken impression that an order had been filed, and because he worked for the debtors during this period without objection from any of the parties involved. Because of our conclusions as to the first claim, however, it will become evident that the second claim is essentially moot. The bankruptcy court, with the district court affirming, held that McEwen was not entitled to compensation for his post-petition work because he was not a disinterested person. Under 11 U.S.C. § 327(a), the trustee could employ, with the court’s approval, an attorney who did “not hold or represent an interest adverse to the estate, and [was a] disinterested person * * 11 U.S.C. § 327(a). Although framed conjunctively, the conditions are applied disjunctively; failure to meet either will result in disqualification. See In re Leisure Dynamics, Inc., 32 B.R. 753, 754 (Bankr.D.Minn.) (supplemental opinion to 32 B.R. 751), aff'd, 33 B.R. 121 (D.Minn.1983). The bankruptcy court found that McEwen failed to meet two parts of the definition of a disinterested person: (13) “disinterested person” means person that— (A) is not a creditor, an equity security holder, or an insider; * * * * * * (E) does not have an interest materially adverse to the interest of the estate or of any class of creditors or equity security holders, by reason of" }, { "docid": "4671498", "title": "", "text": "of the debtor with a security interest in property which he claimed to prevail over the interests of the estate. See Rubin v. Trader and Owens, Adversary Action No. 85-0721-2-3 (Bkrtcy. W.D.Mo. Oct. 27, 1986), app. dis. Civil Action No. 87-0778-CV-W-8 (Sept. 30, 1987). Under such circumstances, the courts have held with some uniformity that it is within the power of the bankruptcy court to deny fees when such a conflict of interest exists. See In re Roberts, 75 B.R. 402, 413 (D.Utah 1987), to the following effect: “The law firm, as a pre-petition creditor of the corporation, did not qualify as a ‘disinterested person’ and therefore was statutorily ineligible for employment. Section 328(c) specifically allows the court to deny attorney’s fees and costs at any time during employment that counsel is not a disinterested person or holds or represents an interest adverse to the estate. Although section 328(c) does not mandate the denial of fees, the clarity of the statutory ineligibility and the assertion by affidavit that the law firm was disinterested, when in fact it was not, warrants the denial of fees and costs ...” See also In re Pierce, 809 F.2d 1356, 1363 (8th Cir.1987), to the following effect: “(T)here are two other grounds upon which the court could have denied (attorney’s) fees. First, under Section 327(a), an attorney may be disqualified not only because he or she is not disinterested, but also because the attorney holds an ‘interest adverse to the estate.’ 11 U.S. C. section 327(a). At least one court has held that an attorney’s pre-petition mortgage on the debtor’s real estate constitutes an ‘adverse interest’ under Section 327(a). In re Martin, 59 B.R. 140, 143 (Bankr.D.Maine 1986); see also In re Roberts, 46 B.R. 815, 849 (Bankr.D.Utah 1985) (attorney’s pre-petition debt for legal fees for services not rendered in connection with bankruptcy case would constitute an adverse interest). Thus, the court could have denied compensation on this ground.” Accordingly, separately and independently, compensation will be denied for the reason that applicant counsel had an adverse interest to the estate during the time periods for" } ]

[ { "docid": "5794327", "title": "", "text": "of the trial.” Bagley, 473 U.S. at 678, 105 S.Ct. at 3381. Because appellants fail to show how they would have been able to use Scafidi’s record of arrests and indictments at the trial, they have failed to demonstrate the materiality of the withheld information. Initially, it is clear that Scafidi’s record of arrests and indictments would not have been admissible for impeachment purposes under Fed.R.Evid. 609 because none of the arrests or indictments resulted in a conviction. Further, inquiry into the mere existence of an arrest or indictment is not admissible to impeach the defendant’s credibility under Fed.R.Evid. 608(b). See Newman, 849 F.2d 156, 161 (5th Cir.1988); see also United States v. Labarbera, 581 F.2d 107, 108-09 (5th Cir.1978); United States v. Garcia, 531 F.2d 1303, 1306 (5th Cir.1976). Appellants next contend that the record of arrests and indictments in this case falls within an exception to the general rule of inadmissibility because it reveals Scafidi’s bias or motivation to testify falsely in return for favorable treatment on the state indictments pending against him in Mississippi. This court has acknowledged the general rule that while extrinsic evidence of specific conduct is generally not admissible to attack a witness’ credibility because it is a collateral issue, “[t]he bias of a witness ... is not a collateral matter and the party examining the witness is not bound by his denial of acts tending to show his bias.” United States v. Diecidue, 603 F.2d 535, 550 (5th Cir.1979). However, we reject appellants’ contention that Scafidi’s record of indictments would have been admissible extrinsic evidence of bias. First, the record reflects that only one of the eleven state indictments filed against Scafidi was still pending at the time of trial. Second, appellants ask us to speculate, with no record foundation, that the federal prosecutor had the ability to influence the state toward a favorable disposition of the pending state court indictment. And most importantly, in their post-trial offer of proof, appellants did not offer Scafidi’s record of arrests and indictments on a bias theory; their offering was under Rule 608(b) to demonstrate bad" } ]

[ { "docid": "21600562", "title": "", "text": "testimony improperly attacked Rodriguez’s credibility through evidence of specific instances of conduct, a violation of Rule 608(b) of the Federal Rules of Evidence. Specifically, Martinez reasons that, without evidence that Martinez was a Mexican Mafia member, Lopez’s testimony about Rodriguez and the Mexican Mafia, even if true, is not probative of Rodriguez’s bias. In considering Martinez’s challenge to the admission of Lopez’s testimony, we employ a deferential abuse of discretion standard of review. See United States v. Duncan, 919 F.2d 981, 985 (5th Cir.1990) (citations omitted), cert. denied, — U.S. —, 111 S.Ct. 2036, 114 L.Ed.2d 121 (1991); United States v. Bratton, 875 F.2d 439, 443 (5th Cir.1989) (citation omitted). In most instances, Rule 608(b) of the Federal Rules of Evidence prohibits the admission of extrinsic evidence solely for the purpose of attacking the credibility of the witness. See Fed. R.Evid. 608(b); see also United States v. Farias-Farias, 925 F.2d 805, 809 (5th Cir.1991) (citation omitted); United States v. Diecidue, 603 F.2d 535, 550 (5th Cir.1979) (citations omitted), cert. denied sub nom., 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980). Extrinsic evidence may, however, be admissible for another purpose — for example, if it tends to show bias in favor of or against a party. See United States v. Abel, 469 U.S. 45, 56, 105 S.Ct. 465, 471, 83 L.Ed.2d 450 (1984) (holding that impeachment evidence inadmissible under 608(b) may be admissible for another purpose, as “[i]t would be a strange rule of law which held that relevant, competent evidence which tended to show bias on the part of a witness was nonetheless inadmissible because it also tended to show that the witness is a liar”); see also United States v. Thorn, 917 F.2d 170, 176 (5th Cir.1990) (“An exception to the prohibition against the use of extrinsic evidence to attack the credibility of a witness exists in cases in which the evidence tends to show bias or motive for the witness to testify untruthfully.”), citing Diecidue, 603 F.2d at 550. The probative value of admitting the extrinsic evidence must substantially outweigh any prejudicial effect under Rule 403" }, { "docid": "13714104", "title": "", "text": "credibility .... ”); id. at 478 (“I would bring Agent Martinez in to directly impeach his credibility, to prove on the stand that Mr. Caldevilla is a liar.”). In fact, the government specifically disavowed any other ground for admission: It’s the Government’s position that [the defendants] thereby open the door for the admission of the evidence impeaching or what the Government submits, at least, is going to be impeaching the witness’ testimony. If it’s material, Judge, it would only come in for that one particular purpose and I should be allowed to use whatever evidence I have to show that Mr. Caldevilla is untruthful. Id. at 491 (emphasis added). Though the trial court made passing reference to other grounds for admissibility, id. at 494-95, it is clear that the sole ultimate basis for admitting the evidence was to attack Caldevilla’s credibility. The trial judge noted that he “would instruct the jury that the testimony with regard to this matter is admitted and limited to the issue of the credibility of the witness and is not addressed to the direct guilt or innocence of any defendant .. ..” Id. at 496. Given the fact that the extrinsic evidence was admitted solely to attack the credibility of the witness, and the fact that Fed.R. Evid. 608(b) specifically prohibits such a use of extrinsic evidence, the trial court’s ruling was in error. D. Harmless Error The government next argues that any error in the trial court’s ruling would be harmless. The government’s position is that if Caldevilla declined to answer questions on cross-examination because of his fifth amendment rights and the government was unable to rebut with extrinsic evidence, the trial court would have been within its discretion in striking Caldevilla’s testimony on direct examination. See, e.g., United States v. Diecidue, 603 F.2d 535, 552 (5th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980). Thus, the situation would be the same as it is now — no testimony by Caldevilla, no rebuttal by Martinez. The problem with this argument is that the government elaims only that it was" }, { "docid": "23675253", "title": "", "text": "wondering why Collins would have wanted a gun. The government’s evidence provided an answer: he was acting as the lookout for a burglary. Under these circumstances, the district court did not abuse its discretion by admitting evidence of the burglary. III. Did the district court violate Collins’ Sixth Amendment confrontation rights by limiting the scope of his cross-examination of a government witness? Collins asserts that the district court abused its discretion when it refused to allow him to attack Calisterio’s credibility by asking him whether he was a drug dealer and whether he lied when he told friends that the police broke down his door and arrested him for a traffic ticket. The district court prohibited these questions under Fed.R.Evid. 608(b) which states, in part: Specific instances of conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than for conviction of a crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness, be inquired into on cross-examination of the witness ... concerning the witness’ character for truthfulness or untruthfulness .... Collins contends that our decision in United States v. Ray, 731 F.2d 1361, 1364 (9th Cir.1984), compels us to hold that the district court abused its discretion by not permitting him to ask Calisterio if he was a drug dealer. Collins reads Ray too broadly. In Ray we held that a district court abuses its discretion by not allowing cross-examination about a witness’ continuing drug dealing where the drug dealing might bias the testimony of the witness. However, we cautioned that our holding was limited to cases where the defendant offers a “threshold level” of evidence that the witness’s drug dealing might cause bias. Id. Collins completely failed to make this showing: when asked by the court how Calisterio’s drug dealing might cause bias, Collins’ lawyer’s only response was: Well, the bias is that-I think, you know, that his dealings with drugs had something to do with his changing history. I know that maybe that’s speculative. Maybe I" }, { "docid": "17704591", "title": "", "text": "the trial court improperly excluded evidence regarding his character for truthfulness. The trial court held that an FBI agent could not testify as to Camper’s truthfulness because the government had not attacked Camper’s character for truthfulness. See Fed.R.Evid. 608(a). Camper argues that the government had placed his character for truthfulness at issue by including, as one object of the conspiracy, the charge that Camper and his co-conspirators agreed to cover up their knowledge of the firebombings. However, the government dropped this charge from the indictment before trial. The fact that some of the evidence may have shown that defendant conspired to cover up his crime does not mean that defendant’s character for truthfulness “has been attacked by opinion or reputation evidence or otherwise.” Fed.R.Evid. 608(a). See United States v. Thomas, 768 F.2d 611, 618 (5th Cir.1985). The trial court did not abuse its discretion in excluding the FBI agent’s testimony. Camper argues that several of the trial court’s evidentiary rulings deprived him of his right to confront adverse witnesses. The trial court precluded Camper from cross-examining the victims of the firebombings about prior drug use. The court also limited cross-examination about Paul Johnson’s prior acts of violence and vandalism, and prevented Camper from mentioning Johnson’s ten-year old misdemeanor conviction for forgery. The trial court did not abuse its discretion in foreclosing inquiry into past drug use by the teachers since Camper made no foundational showing that the evidence was relevant to the teachers’ credibility as witnesses. See United States v. Domina, 784 F.2d 1361, 1365-66 (9th Cir.1986), cert, denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987). The trial court allowed Camper to cross-examine Johnson about his prior acts of violence to the extent that they related to possible bias or motive to fabricate. It was not an abuse of discretion to limit further cross-examination. See Fed.R. Evid. 608(b). Finally, the trial court did not abuse its discretion in precluding mention of a misdemeanor conviction over ten years old offered for purposes of impeachment. See Fed.R.Evid. 609(b). Camper alleges other errors in the trial court’s evidentiary rulings. We" }, { "docid": "15011590", "title": "", "text": "truthfully in the past under his plea agreement certainly bears on his response to similar pressures and temptations in the present.” Id. at 241. Finding no reason to depart from our reasoning in Smith, we reject Sumlin’s claim that Perry’s testimony was irrelevant. We interpret Sumlin’s next challenge as one of improper “bolstering” under Rule 608(b). Rule 608(b) states that [s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Fed.R.Evid. 608(b). The testimony to which Sumlin now objects includes statements from Agent Perry that Goode had assisted the DEA in other investigations that resulted in numerous arrests. This testimony, however, followed Sumlin’s efforts to impeach Goode’s credibility by questioning the arrangements of his plea agreement with the DEA. Certainly, revealing a witness’ bias is an acceptable method of attacking a witness’ credibility. See United States v. Abel, 469 U.S. 45, 50-52, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). Equally acceptable, though, may be testimony that tends to rebut bias. In Smith, we recognized that our sister circuits did not agree on “the point at which impermissible ‘bolstering’ ends and permissible use of past cooperation to rebut bias begins.” 232 F.3d at 242. We did, however, identify the threshold question under Rule 608(b) as: “For what purpose has the prosecution offered the extrinsic evidence?” Id. If offered only to bolster an informant’s credibility, the extrinsic evidence is barred by Rule 608(b). See United States v. Taylor, 900 F.2d 779, 781 (4th Cir.1990). If offered for an alternate and legitimate reason, “such as ‘to justify a cooperation agreement [or] rebut allegations of bias,’ the evidence falls outside Rule 608(b)’s narrow confines.” Smith," }, { "docid": "19094886", "title": "", "text": "filed charging Pearl, Innes, Ongania, Noti, Martin, and Edwards with conspiracy to import and distribute cocaine in violation of 21 U.S.C. §§ 952(a), 960(a)(1), and 963, and, except for Edwards, with substantive counts of importation and possession of cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. Innes was, and remains, a fugitive. Ongania is in Peruvian custody. Subsequent to arraignment, Pearl pleaded guilty, and Martin was dismissed from the indictment. Only Noti and Edwards proceeded to trial, at which each was convicted. This timely appeal followed. DISCUSSION A. Exclusion of motive evidence was not reversible error. James Higgins, the government’s key witness, testified on cross-examination that his motive for informing against the defendants was his personal opposition to the use of drugs. He denied ever using or selling cocaine. Noti then attempted to introduce extrinsic evidence that Higgins was in fact a user and supplier of cocaine. The district court deemed the evidence inadmissible on the ground that Noti was seeking to attack Higgins’ credibility through evidence of specific instances of misconduct. Noti argues that the evidence was offered not to impeach the witness, but rather to shed light on Higgins’ actual motive to inform. The district court’s ruling is reviewed for an abuse of discretion. United States v. Cutler, 676 F.2d 1245, 1248 (9th Cir.1982). Evidence of a witness’ past misconduct, other than conviction of a crime, is inadmissible for the purpose of attacking the witness’ credibility. Fed.R.Evid. 404(a) & 608(b). Evidence that happens to include prior misconduct may be admissible, however, when it is offered to show the witness’ possible bias or self-interest in testifying. Burr v. Sullivan, 618 F.2d 583, 586-87 (9th Cir.1980). In such a case, the adverse party does not have to accept the witness’ testimony, but may offer extrinsic evidence to rebut it. United States v. James, 609 F.2d 36, 46 (2d Cir.1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1082, 63 L.Ed.2d 321 (1980). The exclusion of extrinsic evidence here did not constitute reversible error for two reasons. First, Noti has not demonstrated on appeal that he" }, { "docid": "12097917", "title": "", "text": "Prejudice, or Motive to Misrepresent 24. At trial, the defense conceded that something happened to Theresa, but maintained that appellant did not do it. On appeal, SFC Bins argues that evidence of Theresa’s financial interest was admissible under Mil.R.Evid. 608(c) because it had • a tendency to show that she was biased and had a motive to make and maintain the misrepresentations against him. He further argues that the military judge’s ruling, which “kept highly probative impeachment evidence from the members,” denied him his right to confront and cross-examine Theresa. Final Brief at 3. The Government argues that the proffered evidence was “so tenuous” that it was “collateral to any important issue at trial” and, thus, excluding it was “appropriate.” Answer to Final Brief at 7. 25. A witness may be impeached by evidence of “bias, prejudice, or any motive to misrepresent.” Mil.R.Evid. 608(c). When the defense offers this evidence, it may deny confrontation rights to exclude it. See, e.g., Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (Sixth Amendment Confrontation Clause requires defendant have a chance to show a prosecution witness’ bias). Mil.R.Evid. 608(c) allows bias or prejudice evidence to be introduced through examination of witnesses “or by evidence otherwise adduced.” Thus, extrinsic evidence is allowed under Mil.R.Evid. 608(c) but not under 608(b). See, e.g., United States v. Banker, 15 MJ 207 (CMA 1983) (specific acts of conduct that cannot be used to attack credibility may be used to show a witness’ bias, prejudice, or motive to misrepresent). 26. An accused has the right to present evidence that is both “logically and legally relevant.”' See United States v. Wool-heater, 40 MJ 170, 172-73 (CMA 1994). In Woolheater, we reversed an arson conviction because the military judge prevented the defense from presenting “legally and logically relevant evidence that someone else had the motive, knowledge, and opportunity to commit the arson.” Id. at 173. In doing so, however, we noted that “the Constitutional right to present defense evidence ... is not absolute and may yield to policy considerations such as the interest in the orderly conduct" }, { "docid": "13714105", "title": "", "text": "addressed to the direct guilt or innocence of any defendant .. ..” Id. at 496. Given the fact that the extrinsic evidence was admitted solely to attack the credibility of the witness, and the fact that Fed.R. Evid. 608(b) specifically prohibits such a use of extrinsic evidence, the trial court’s ruling was in error. D. Harmless Error The government next argues that any error in the trial court’s ruling would be harmless. The government’s position is that if Caldevilla declined to answer questions on cross-examination because of his fifth amendment rights and the government was unable to rebut with extrinsic evidence, the trial court would have been within its discretion in striking Caldevilla’s testimony on direct examination. See, e.g., United States v. Diecidue, 603 F.2d 535, 552 (5th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980). Thus, the situation would be the same as it is now — no testimony by Caldevilla, no rebuttal by Martinez. The problem with this argument is that the government elaims only that it was within the trial court’s discretion to strike the testimony. We will not hold the error to be harmless based on an assumption about how the trial court would exercise its discretion. This case involves enough hypothetical scenarios without our adding to the tale. Given that the error is not harmless and that all defendants objected, we must reverse all the convictions and remand for a new trial. III. ADMISSION OF DUPLICATE TAPES Defendant Kessler raises a second evidentiary argument, and because the same problem is likely to arise on retrial, we address the issue briefly. Kessler made several phone calls during the pendency of the conspiracy to informant Miller. Unbeknownst to Kessler, Miller recorded many of those calls and turned the recordings over to DEA agents. The DEA made copies of these recordings and the government introduced the copies into evidence at trial. Kessler objected to the admission of the copies because “[t]hey are not originals and they have not been in custody of the DEA exclusively or in such a manner secured so that" }, { "docid": "21600561", "title": "", "text": "he also believed Martinez was a member. Martinez, however, did not object that Lopez lacked personal knowledge to testify that Martinez was a member of this gang. See Fed.R.Evid. 602 (“a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”). At the charge conference, after the parties rested, Martinez moved, for the first time, to strike the testimony of witnesses regarding gang membership. The district court denied Martinez’s motion but instructed the jury to consider evidence of gang membership only to decide whether Rodriguez was biased in favor of or against any party, and for no other purpose. Martinez was convicted under 18 U.S.C. § 922(g)(1), and the district court sentenced him pursuant to the sentence enhancement provision of 18 U.S.C. § 924(e)(1). II A Martinez contends the district court abused its discretion by allowing Lopez to testify that Rodriguez was a member of the Mexican Mafia prison gang to show bias on Rodriguez’s part. According to Martinez, Lopez’s testimony improperly attacked Rodriguez’s credibility through evidence of specific instances of conduct, a violation of Rule 608(b) of the Federal Rules of Evidence. Specifically, Martinez reasons that, without evidence that Martinez was a Mexican Mafia member, Lopez’s testimony about Rodriguez and the Mexican Mafia, even if true, is not probative of Rodriguez’s bias. In considering Martinez’s challenge to the admission of Lopez’s testimony, we employ a deferential abuse of discretion standard of review. See United States v. Duncan, 919 F.2d 981, 985 (5th Cir.1990) (citations omitted), cert. denied, — U.S. —, 111 S.Ct. 2036, 114 L.Ed.2d 121 (1991); United States v. Bratton, 875 F.2d 439, 443 (5th Cir.1989) (citation omitted). In most instances, Rule 608(b) of the Federal Rules of Evidence prohibits the admission of extrinsic evidence solely for the purpose of attacking the credibility of the witness. See Fed. R.Evid. 608(b); see also United States v. Farias-Farias, 925 F.2d 805, 809 (5th Cir.1991) (citation omitted); United States v. Diecidue, 603 F.2d 535, 550 (5th Cir.1979) (citations omitted), cert. denied sub nom., 445 U.S. 946," }, { "docid": "19094887", "title": "", "text": "instances of misconduct. Noti argues that the evidence was offered not to impeach the witness, but rather to shed light on Higgins’ actual motive to inform. The district court’s ruling is reviewed for an abuse of discretion. United States v. Cutler, 676 F.2d 1245, 1248 (9th Cir.1982). Evidence of a witness’ past misconduct, other than conviction of a crime, is inadmissible for the purpose of attacking the witness’ credibility. Fed.R.Evid. 404(a) & 608(b). Evidence that happens to include prior misconduct may be admissible, however, when it is offered to show the witness’ possible bias or self-interest in testifying. Burr v. Sullivan, 618 F.2d 583, 586-87 (9th Cir.1980). In such a case, the adverse party does not have to accept the witness’ testimony, but may offer extrinsic evidence to rebut it. United States v. James, 609 F.2d 36, 46 (2d Cir.1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1082, 63 L.Ed.2d 321 (1980). The exclusion of extrinsic evidence here did not constitute reversible error for two reasons. First, Noti has not demonstrated on appeal that he could have proved any more than Higgins’ use and distribution of drugs. There was no offer of proof that Higgins cooperated in the investigation to gain lenient treatment in the future regarding his own drug violations, or that investigation of Higgins was deferred to induce his cooperation. The fact that Higgins used drugs, without more, is not sufficiently probative of motive to mandate reversal. The district court was therefore correct in concluding that the evidence went only to Higgins’ credibility. Second, Noti argued below that he sought to introduce the evidence to negate the suggestion that Higgins’ motive was honorable, so that the jury would focus on whether Higgins’ financial interest in the case tainted his testimony. Higgins’ financial rewards, however, were thoroughly explored at trial. Pearl and U.S. Customs each gave Higgins $10,000, and he had reason to expect more from the LAPD and the DEA. Noti’s counsel was free to raise the obvious inferences flowing from these facts in his closing argument. In addition, there was testimony as to Higgins’ reputation for untruthfulness," }, { "docid": "23048351", "title": "", "text": "that discretion. United States v. Merida, 765 F.2d 1205, 1217 (5th Cir.1985); United States v. Sudderth, 681 F.2d 990, 996 (5th Cir.1982). In the case at bar, the Gordon trial judge ruled that certain portions of Lang’s statement made to an FBI agent in another district attacking the credibility of co-conspirator Copeland by extrinsic evidence be excised and not brought out by Gordon on cross-examination of Lang pursuant to Federal Rules of Evidence 608(b). It is a well settled concept that for a trial court to permit the introduction of extrinsic evidence to prove misconduct that did not result in a conviction constitutes reversible error. United States v. Reed, 715 F.2d 870, 876 (5th Cir.1983); United States v. Cluck, 544 F.2d 195 (5th Cir.1976). Copeland’s “misconduct” did not result in a conviction. Thus, the trial court properly ruled that such questioning would amount to attacking the credibility of the witness Copeland by extrinsic evidence, which is prohibited by Rule 608(b) and ordered that those portions of Lang’s statements be excised and not brought out by Gordon on cross-examination. Moreover, Rule 404(b) provides that “Evidence of other crimes ... is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” The Gordon trial judge did not abuse his discretion. Appellant Gordon also asserts that he was entitled under the law to fully develop the facts surrounding the subject matter of Lang’s plea of guilty set forth in the memorandum of understanding. After review of the trial transcript, it is apparent that Gordon was not limited in his cross-examination of the government witness Lang concerning the “deal” Lang made with the prosecution. Appellant introduced into evidence Lang’s memorandum of understanding he made with the government and questioned Lang extensively regarding its effect in motivating him to testify against Gordon. Moreover, Lang’s prior convictions were permitted by the Court to be explored by appellant pursuant to Rule 609. See United States v. Bray, 445 F.2d 178, 182 (5th Cir.1971), cert. denied, 404 U.S. 1002, 92 S.Ct. 571, 30 L.Ed.2d 555 (1971); Beaudine v. United" }, { "docid": "2086033", "title": "", "text": "about the marijuana just found in the vehicle he was driving is some evidence of his guilty knowledge. Nothing in Fed.R.Evid. 608(b) is to the contrary. This Court has held that “[t]he application of Rule 608(b) to exclude extrinsic evidence of a witness’s conduct is limited to instances where the evidence is introduced to show a witness’s general character for truthfulness.” United States v. Opager, 589 F.2d 799, 801 (5th Cir.1979); see Carson v. Polley, 689 F.2d 562, 574 (5th Cir.1982). Rule 608(b) affects only evidence of prior instances of conduct when properly relevant solely for the purpose of attacking or supporting a witness’s credibility; it in no way affects the admission of evidence of such prior acts for other purposes, chiefly under Rules 403 and 404. See, e.g., United States v. Simpson, 709 F.2d 903, 908 (5th Cir.) (extrinsic evidence of prior instances of conduct was admissible under Rule 404(b) to establish requisite element of defendant’s intent), cert. denied, 464 U.S. 942, 104 S.Ct. 360, 78 L.Ed.2d 322 (1983); Carson, 689 F.2d at 574-75 (extrinsic evidence of prior conduct admissible as relevant to material issue); Opager, 589 F.2d at 801 (extrinsic evidence of prior conduct admissible to disprove a specific fact material to defense); United States v. Contreras, 602 F.2d 1237, 1241-1242 (5th Cir.) (extrinsic evidence of defendant’s prior conduct acts admissible to “test the credibility and factual foundation of [a specific] statement”), cert. denied, 444 U.S. 971, 100 S.Ct. 466, 62 L.Ed.2d 387 (1979); United States v. Hodnett, 537 F.2d 828, 829 (5th Cir.1976) (extrinsic evidence of prior bad acts admissible to show witness’s bias and prejudice). The fact that Rule 608(b) by its terms refers to prior conduct specifically “of a witness, for the purpose of attacking or supporting the witness’ credibility” reflects that the rule is not intended broadly to restrict the introduction of exculpating or incriminating substantive evidence. Thus, evidence of Fa-rias’s false statements at the time of his arrest for the offense in question, as substantive evidence of guilt, is admissible regardless of whether the requirements of Rule 608(b) are satisfied. VI. ANY ERROR" }, { "docid": "22240309", "title": "", "text": "Joe Sotelo’s guilt. See United States v. Limones, 8 F.3d 1004, 1008 (5th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1562, 128 L.Ed.2d 209 (1994). LIMITATION ON CROSS EXAMINATION OF GOVERNMENT WITNESS Joe Sotelo contends that the district court abused its discretion by limiting his cross-examination of Juan Robles regarding five felony charges pending against him at the time of trial. The trial court has the discretion to impose reasonable limits on the extent of cross-examination. United States v. Cooks, 52 F.3d 101, 103 (5th Cir.1995). However, the trial court’s discretion is limited by the requirements of the Confrontation Clause of the Sixth Amendment. Id. Joe Sotelo argues that the trial court’s limitation on the cross-examination of Juan Robles concerning five state felony charges— two for attempted murder—pending against him at the time of trial requires reversal. Rule 608(b) provides for impeachment on cross-examination with acts other than convictions if probative of the witness’s credibility, particularly if the evidence tends to show bias or motive for the witness to testify untruthfully. United States v. Thorn, 917 F.2d 170, 176 (5th Cir.1990). In Thom, this Court held that the trial court had not abused its discretion in refusing impeachment with state indictments because the defendant “had failed to offer any evidence that the Government could influence the disposition of the state court proceedings. The existence of a pending state court indictment on charges totally unrelated to the testimony offered ... was not shown to give [the witness] a substantial reason to cooperate with the federal prosecution.” Thorn, 917 F.2d at 176. The only evidence concerning this question was in response to Joe Sotelo’s question to Robles asking if his cooperation with the Government and his testimony were motivated by a desire to gain leniency for the charges currently pending against him. Robles relied, “No.” No other evidence tended to show that Robles thought that the Government could influence the disposition of the state court charges or that the Government could in fact exert such influence. The district court did not abuse its discretion in limiting the cross-examination of Robles. CUMULATIVE" }, { "docid": "6787819", "title": "", "text": "the defendant. Moreover, we permitted the defendant to examine him on all proffered specific incidents of alleged misconduct. C. Refusal to Allow Extrinsic Evidence to Discredit Barney Cummins Defendant sought to introduce extrinsic evidence of specific acts of Barney Cummins. The Court allowed the defendant to produce all proffered extrinsic evidence of Cummins’ alleged personal bias toward the defendant. United States v. Brown, 547 F.2d 438, 445-46 (8th Cir.), cert. denied, 430 U.S. 937, 97 S.Ct. 1566, 51 L.Ed.2d 784 (1977); United States v. Harvey, 547 F.2d 720, 722 (2d Cir. 1976); United States v. Moore, 174 U.S.App.D.C. 113, 115, 529 F.2d 355, 357 (1976); Advisory Committee Note to Fed.R.Evid. 608(a); McCormick, Evidence § 40 at 81 (2d ed. 1972). Pursuant to our interpretation of Fed.R.Evid. 608(b), the Court did limit the defendant in his attempt to produce extrinsic evidence of specific acts of past conduct of the witness Barney Cummins offered for the purpose of attacking his credibility. Fed.R.Evid. 608(b) provides in pertinent p¿rt: Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. The testimony which we excluded had nothing to do with Barney Cummins’ relationship with the defendant, nor did it concern convictions of any crime. Much of it concerned incidents occurring when Cummins was employed as a police officer for Lower Moreland, Pennsylvania. As heretofore noted, the defendant was given a full opportunity to examine Cummins about each of these incidents. According to the defendant’s offers of proof, the witnesses proffered by him, and excluded by the Court, would have contradicted Cummins’ denials and/or explanations of the incidents. This testimony is precisely the type that Rule 608(b) excludes to avoid minitrials on wholly collateral matters which tend to distract and confuse the jury. This was not evidence concerning the witness’s bias against the defendant, but instead went to totally collateral issues. The Court, therefore, properly excluded this evidence. United States v. Turquitt, 557 F.2d 464, 471 (5th Cir. 1977); United States v." }, { "docid": "12097918", "title": "", "text": "Confrontation Clause requires defendant have a chance to show a prosecution witness’ bias). Mil.R.Evid. 608(c) allows bias or prejudice evidence to be introduced through examination of witnesses “or by evidence otherwise adduced.” Thus, extrinsic evidence is allowed under Mil.R.Evid. 608(c) but not under 608(b). See, e.g., United States v. Banker, 15 MJ 207 (CMA 1983) (specific acts of conduct that cannot be used to attack credibility may be used to show a witness’ bias, prejudice, or motive to misrepresent). 26. An accused has the right to present evidence that is both “logically and legally relevant.”' See United States v. Wool-heater, 40 MJ 170, 172-73 (CMA 1994). In Woolheater, we reversed an arson conviction because the military judge prevented the defense from presenting “legally and logically relevant evidence that someone else had the motive, knowledge, and opportunity to commit the arson.” Id. at 173. In doing so, however, we noted that “the Constitutional right to present defense evidence ... is not absolute and may yield to policy considerations such as the interest in the orderly conduct at trials.” Id., citing Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). See also Mil.R.Evid. 403. 27. In United States v. Gray, 40 MJ 77 (CMA 1994), we reversed convictions for sodomy and adultery with the wife of a subordinate, and committing indecent acts with the subordinate’s 9-year-old daughter. There we held that the military judge abused his discretion by excluding évidence that the subordinate and his wife accused appellant to shift attention from their own dysfunctional and abusive family situation. The excluded “evidence was relevant to show bias” and was admissible under Mil.R.Evid. 608(c). 40 MJ at 80. Excluding the evidence violated “appellant’s rights to cross-examine the witnesses against him and to present [a] defense.” We reversed because “[t]he trial was a credibility contest between appellant and his alleged victims. We cannot discount the reasonable likelihood that the excluded evidence may have tipped the credibility balance in appellant’s favor.” Id. at 81. 28. The Supreme Court reversed a rape conviction on a similar issue in Olden v. Kentucky, 488" }, { "docid": "9760427", "title": "", "text": "district court’s ruling allowing these counts to proceed to trial under a single indictment was not error. B. Evidentiary Issues 1. Extrinsic evidence of a prior act of misconduct In its case-in-chief the government elicited testimony from three Dallas police officers that Blake had admitted involvement in the crimes charged and in other criminal activity. On direct and cross-examination, Blake denied making any incriminating statements to the police officers. On rebuttal, the government called a detective of the Dallas Police Department to testify, over Blake’s objection, about Blake’s presence at the “reverse” purchase operation detailed in the facts above. Blake contends this was improper impeachment, citing Rule 608(b) of the Federal Rules of Evidence. This rule provides: (b) Specific instances of conduct.—Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. Fed.R.Evid. 608(b). Under Rule 608(b) it is error to attack a witness’ general character for truthfulness by using extrinsic evidence of his conduct that has not resulted in conviction of a crime. United States v. Cohen, 631 F.2d 1223, 1226 (5th Cir.1980). We have, however, held that “Rule 608(b) should not stand as a bar to the admission of evidence introduced to contradict, and which the jury might find disproves, a witness’s testimony as to a material issue of the case.” United States v. Opager, 589 F.2d 799, 803 (5th Cir.1979). Blake’s admissions, in which he indicated that he had been extensively involved in drug trafficking, was a primary part of the government’s case-in-chief. As such, the admission that he was in the drug business was clearly a material issue in the case. When Blake denied making the incriminating statements" }, { "docid": "17834942", "title": "", "text": "plastic bags in Stewart’s backyard that were later proved to conceal bales of marijuana (although Patterson did not know it was marijuana at the time); that Stewart had seen Patterson when he discovered the bags; that after his arrest and subsequent release from custody Stewart told Patterson to keep his nose out of Stewart’s business; and finally that Stewart shot Patterson in the chest, ostensibly for reasons related to Patterson’s discovery of the bags in Stewart’s backyard. Patterson’s wife also offered testimony corroborating her husband’s story. The trial court declined to admit the proffered testimony, and the defendants challenge that ruling on appeal. Rule 608(b) of the Federal Rules of Evidence governs admission of extrinsic evidence to attack credibility, and provides that: Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of a crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness of another witness as to which character the witness being cross-examined has testified. “To the extent that it is ever admissible, extrinsic evidence to attack credibility is usually subject to the discretion of the trial judge.” United States v. Dinitz, 538 F.2d 1214, 1224 (5th Cir.1976). As a general matter, a party’s right to impugn the character for truthfulness of an opposing party’s witness is limited to questioning the witness on cross-examination. When such cross-examination testimony goes into evidence “ ‘the examiner must take his answer,’ and the examiner cannot offer impeachment testimony.” United States v. Cohen, 631 F.2d 1223, 1226 (5th Cir.1980). An exception to this rule has developed, however, where the extrinsic testimony proffered would tend to show that the witness is biased against the accused. In this case, there is no evidence linking either the marijuana found in Stewart’s yard or the shooting incident, to the July 1979" }, { "docid": "21600563", "title": "", "text": "100 S.Ct. 1345, 63 L.Ed.2d 781 (1980). Extrinsic evidence may, however, be admissible for another purpose — for example, if it tends to show bias in favor of or against a party. See United States v. Abel, 469 U.S. 45, 56, 105 S.Ct. 465, 471, 83 L.Ed.2d 450 (1984) (holding that impeachment evidence inadmissible under 608(b) may be admissible for another purpose, as “[i]t would be a strange rule of law which held that relevant, competent evidence which tended to show bias on the part of a witness was nonetheless inadmissible because it also tended to show that the witness is a liar”); see also United States v. Thorn, 917 F.2d 170, 176 (5th Cir.1990) (“An exception to the prohibition against the use of extrinsic evidence to attack the credibility of a witness exists in cases in which the evidence tends to show bias or motive for the witness to testify untruthfully.”), citing Diecidue, 603 F.2d at 550. The probative value of admitting the extrinsic evidence must substantially outweigh any prejudicial effect under Rule 403 of the Federal Rules of Evidence. See Farias-Farias, 925 F.2d at 809; see also Thorn, 917 F.2d at 176 (under general mandate of Rule 403, “district judge should exclude evidence if its prejudicial effect outweighs its probative value”). In Abel, the Supreme Court found that a gang member’s testimony that the defendant and a defense witness were members of the same gang and that it was characteristic of members of this gang to do anything to help each other — including steal, cheat, kill or lie — was permissible extrinsic evidence of bias. See Abel, 469 U.S. at 49, 105 S.Ct. at 467. The Court reasoned that evidence of the possible bias of a witness is relevant because “[a] successful showing of bias on the part of a witness would have a tendency to make the facts to which he testified less probable in the eyes of the jury than it would be without such testimony.” Id. at 51, 105 S.Ct. at 468. The Court stated that “[a] witness’ and a party’s common membership in" }, { "docid": "14827037", "title": "", "text": "address Atherton’s challenge to the validity of the subsequently issued warrant. B. Evidentiary Issues. Atherton contends that the district court erroneously excluded evidence of drug activity involving Lowe, the government informant and witness. Atherton argues that testimony regarding Lowe’s activity evidenced Lowe’s motivation to cooperate with, and his bias in favor of, the government. It is true that when evidence of a witness’ prior misconduct is properly offered to show bias, that evidence “is not limited by the strictures of Rule 608(b).” United States v. Schwab, 886 F.2d 509, 511 (2d Cir.1989) (citing United States v. James, 609 F.2d 36, 45-46 (2d Cir.1979), cert., denied, 445 U.S. 905, 100 S.Ct. 1082, 63 L.Ed.2d 321 (1980)), cert. denied, — U.S. —, 110 S.Ct. 1136, 107 L.Ed.2d 1041 (1990). We agree with the government, however, that the district court could properly conclude that this testimony was not probative of bias, and was therefore appropriately excluded pursuant to Fed.R.Evid. 608(b). Rule 608(b) provides in pertinent part: Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, ... may not be proved by extrinsic evidence. Essentially, the question presented is whether the district court abused its discretion by refusing to find the proffered testimony to be sufficiently probative of Lowe's asserted bias in favor of the government to warrant its admission into evidence. See United States v. Abel, 469 U.S. 45, 54, 105 S.Ct. 465, 470, 83 L.Ed.2d 450 (1984) (“A district court is accorded a wide discretion in determining the admissibility of evidence under the Federal Rules.”). We perceive no abuse of discretion here. Atherton proffered a witness who testified, out of the presence of the jury, that Lowe had purchased and used illegal drugs during the period that he was acting as a government informant. In a limited sense, any illegal conduct of a government witness can be considered probative of bias, on the theory that the witness is likely to curry the favor of government attorneys in order to avoid prosecution. The probative value of such evidence, however, depends in large measure on" }, { "docid": "13108832", "title": "", "text": "573 F.2d 599 (1978)). Thus, because this evidence is not being offered to establish that Jacobs has a general character for untruthfulness, Rule 608(b) does not bar its admissibility. Moreover, the Supreme Court has held that even if evidence is barred under Rule 608(b), it nonetheless may be admissible if it tends to show bias. United States v. Abel, 469 U.S. 45, 56, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984); see also United States v. Martinez, 962 F.2d 1161, 1165 (5th Cir.1992) (“Extrinsic evidence may ... be admissible for another purpose — for example, if it tends to show bias in favor of or against a party.”). As the Supreme Court explained, “it would be a strange rule of law which held that relevant, competent evidence which tended to show bias on the part of a witness was nonetheless inadmissible because it also tended to show that the witness is a liar [under Rule 608(b)].” Id. In short, we find that the evidence relating to the allegations that Jacobs stole funds from Jolt and lied to the IRS tends to show that he has a motive to lie in this case and should have been considered and evaluated as evidence of bias. The Supreme Court has recognized that “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right to cross examination.” Davis, 415 U.S. at 316-17, 94 S.Ct. 1105. The Supreme Court has also recognized that “proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness’ testimony.” Abel, 469 U.S. at 52, 105 S.Ct. 465. In fact, this court has stated that “cross-examination into any motivation or incentive a witness may have for falsifying his testimony must be permitted.” United States v. Bratton, 875 F.2d 439, 443 (5th Cir.1989) (quoting United States v. Hall, 653 F.2d 1002, 1008 (5th Cir.1981)) (emphasis in original). The admissibility of bias evidence, however, is subject to Rule 403." } ]

[ { "docid": "8649285", "title": "", "text": "PER CURIAM: The defendant, Jay Tee Spurgeon, appeals from a judgment of conviction entered by the United States District Court for the Eastern District of New York (David G. Trager, Judge) upon the defendant’s plea of guilty to the charge of being a convicted felon in possession of a gun in violation of 18 U.S.C. § 922(g). Judge Trager sentenced Spurgeon to a 57-month term of imprisonment and a three-year term of supervised release. In this appeal defendant challenges the district court’s calculation of his sentence. Specifically, he challenges the district court’s four-point enhancement under U.S.S.G. § 2K2.1(b)(5) for “possessing] a firearm or ammunition in connection with another felony offense,” in this case, a drug trafficking offense. We affirm. Section 2K2.1(b)(5) of the Sentencing Guidelines requires district judges to enhance a sentence by four points “[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense_” Spurgeon makes two arguments on appeal: (1) that there was insufficient evidence on which the district court could base a finding that he had committed a felony while in possession of a firearm and, (2) failing that, that he did not “possess” the gun “in connection with” a felony. As to the first challenge, the defendant’s argument is unavailing. Under § 2K2.1(b)(5), “felony offense” means “any offense (state, federal, or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought or a conviction obtained.” U.S.S.G. § 2K2.1 Commentary, App. Note 7. Although the government bears the burden of establishing that a defendant committed a “felony offense,” they need only do so, in the context of sentencing, by a preponderance of the evidence. See United States v. Sasso, 59 F.3d 341, 353 (2d Cir.1995). Moreover, such a determination is a finding of fact which may be upset only if clearly erroneous. United States v. Dodge, 61 F.3d 142, 146 (2d Cir.), cert. denied, — U.S. -, 116 S.Ct. 428, 133 L.Ed.2d 343 (1995); see also 18 U.S.C. § 3742(e). In this ease, the government provided sufficient evidence to permit the district court" } ]

[ { "docid": "22057298", "title": "", "text": "at 910. Here Washington stipulated to all of the facts necessary for his conviction. He admitted to the factual guilt of his offense. Washington’s decision to pursue the suppression of the evidence should not preclude him from receiving credit for accepting responsibility. To affirm the district court in this case would chill the fifing of suppression motions by defendants who admit their factual guilt. Suppression hearings play a vital role in not only protecting the rights of the particular defendant, but also in protecting society from overzealous law enforcement ignoring proper procedure. In the absence of a conditional plea, the defendant would have to choose between trying to suppress the evidence and receiving credit for acceptance of responsibility. A defendant should not have to make this choice. We therefore reverse the district court and remand for re-sentencing on the issue of acceptance of responsibility. C. Possession of a Firearm in Connection with Another Felony 1. Standard of Review This court reviews a district court’s application and interpretation of the sentencing Guidelines de novo and reviews the factual findings for clear error. United States v. Fitch, 137 F.3d 277, 281 (5th Cir.1998)(citing United States v. Edwards, 65 F.3d 430, 432 (5th Cir.1995)). 2. Analysis Section 2K2.1(b)(5) of the Guidelines mandates a sentence enhancement if, among other things, the “defendant used or possessed [the] firearm ... in connection with another felony offense.” Here Washington challenges the district court’s determination that he possessed the firearm in connection with a felony offense meriting a four level increase in his offense level. Washington argues that the evidence is insufficient to show that the weapons were used for any purpose connected to the small amount of drugs recovered. He contends that while a firearm can conceivably be used in connection with the distribution of drugs, a firearm cannot logically be used “in connection with” possession of drugs for personal use. We examined this very issue in United States v. Condren, 18 F.3d 1190 (5th Cir.1994). In Condren, the court enhanced the defendant’s sentence for being a felon in possession of a firearm under § 2K2.1(b)(5) because" }, { "docid": "14531712", "title": "", "text": "Fifth Circuit case involving the admission of evidence regarding repeated instances of drug use throughout a seven month period. United States v. Edwards, 182 F.3d 333 (5th Cir.1999). Mack argues generally that the evidence regarding his earlier instances of drug possession, over two years prior to his arrest, does not relate to the period of time during which he was shown to possess a gun. In addition, Mack argues that evidence of drug use is not Rule 404(b) character evidence and that the government’s cited case law is inapposite because it involved uninterrupted evidence of ongoing drug use. Because evidence regarding the December 2001 incident and Mack’s January 2002 arrest provide more than sufficient evidence to support the jury’s verdict, we do not need to determine whether the district court erred in its admission of evidence concerning the 1999 arrests. While we believe that aging evidence of drug use eventually loses its probative value under Section 922(g)(3), we need not draw any lines in the present case. To the extent that a two-year gap in the evidence of Mack’s drug use might have made admission of the prior arrests improper, any error in this regard was harmless. IV. We review the district court’s application of the Sentencing Guidelines de novo. United States v. Scolaro, 299 F.3d 956, 957 (8th Cir.2002). We review factual findings of the district court in applying the Sentencing Guidelines for clear error. United States v. Johnson, 60 F.3d 422, 423 (8th Cir.1995). The district court’s findings regarding a defendant’s purpose for possessing a firearm are factual findings subject to clear error review. Id. U.S.S.G. § 2K2.1(b)(5) provides a four level enhancement if a defendant “used or possessed any firearm or ammunition in connection with another felony offense ...” Id. “ ‘Felony offense’ as used in subsection (b)(5), means any offense (federal, state, or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought, or conviction obtained.” Application Note 7 to U.S.S.G. § 2K2.1. It is undisputed that tampering in the first degree is a felony offense. Mack argues" }, { "docid": "23162764", "title": "", "text": "and drugs suggests a connection between the two. Cf. United States v. Browning, 252 F.3d 1153, 1160 (10th Cir.2001) (explaining that “proximity” of a weapon and narcotics can demonstrate the connection necessary to support an enhancement under U.S.S.G. § 2K2.1(b)(5) for use or possession of a firearm “in connection with another felony offense”). Moreover, the lethality of the short-barreled shotgun supports the inference that this weapon had an illicit purpose. See United States v. Wyatt, 102 F.3d 241, 248 (7th Cir.1996) (noting that short-barreled guns are often associated with the narcotics trade). Finally, the co-defendant’s practice of trading firearms for methamphetamine supports an inference that Ms. Payton’s delivery of a handgun to two men, at her co-defendant’s direction, was connected to the conspiracy. Accordingly, we cannot say that the district court clearly erred in concluding that Ms. Payton was not eligible for the safety valve because she personally possessed firearms. Our conclusion that the district court properly refused to apply the safety valve provision obviates the need to consider Ms. Payton’s challenge to the sentence enhancement under § 2Dl.l(b)(l). Because she was not eligible for the safety valve, Ms. Payton received the mandatory minimum sentence required by statute. The two-level enhancement Ms. Payton received pursuant to § 2Dl.l(b)(l) therefore had no material effect on her term of incarceration. Consequently, the issue is moot and we need not address it. See United States v. Williams, 216 F.3d 611, 615 (7th Cir.2000) (concluding that an appeal of a § 2D1.1(b)(1) enhancement was moot because the defendant received the mandatory minimum sentence). B. Ms. Payton filed a supplemental brief arguing that, under United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the methodology used to determine her sentence violated her Sixth Amendment rights. She did not raise this argument, or any other Sixth Amendment argument, during her sentencing. Accordingly, we review for plain error. See Fed.R.Crim.P. 52(b); Booker, 125 S.Ct. at 769 (“[W]e expect reviewing courts to ... determin[e] ... whether the issue was raised below and whether it fails the ‘plain error’ test.”); United States v. Gonzalez-Huerta," }, { "docid": "23457496", "title": "", "text": "435, 437 (6th Cir.1998) (citation omitted). “A factual finding is clearly erroneous when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Moon, 513 F.3d 527, 540 (6th Cir.2008) (internal quotation marks omitted). “A 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.” United States v. Erpenbeck, 532 F.3d 423, 430 (6th Cir.2008) (quoting Gall, 552 U.S. at 41, 128 S.Ct. 586). a. Enhancement Under Guideline § 2K2.1(b)(6) Guideline § 2K2.1(b)(6) applies when a defendant possesses a gun “with knowledge, intent, or reason to believe that it would be used or possessed in con nection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The Guideline’s comments state that the subsection “appl[ies] if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense or another offense, respectively.” U.S.S.G. § 2K2.1 cmt. n. 14(A). The court “accord[s] due deference to the district court’s determination that [§ 2K2.1(b)(6)’s] enhancement applies.” Taylor, 648 F.3d at 431 (quoting United States v. Burke, 345 F.3d 416, 426-27 (6th Cir.2003)) (internal quotation marks omitted). Assessing the nexus between a firearm and a felony requires a fact-specific inquiry, under which the court affords due deference to the district court’s findings. Id. at 432. The district court’s factual findings are reviewed for clear error. Id. Stafford argues that the district court erred in “applying the enhancement because there was no evidence presented from which to infer any intent by Stafford to commit another felony offense with the gun.” Stafford relies on United States v. Payne, 462 Fed.Appx. 579, 582 (6th Cir.2012) (per curiam), claiming that the Government was required to show that Stafford possessed the “firearm with the intent to possess or use it, at some time in the future, in connection with another felony offense.” The comments to the Guideline, however, make it clear that the enhancement applies to situations where the “firearm or ammunition facilitated ... another felony offense.” U.S.S.G. § 2K2.1 cmt. n. 14(A). By" }, { "docid": "22175247", "title": "", "text": "to apply the Guidelines. Conclusion For the reasons stated herein, we reject defendants’ Sixth Amendment challenge to the Guidelines. For the same reasons and for additional reasons stated in a summary order also filed today, we affirm the district court’s judgments of conviction. The mandate in this case will be held pending the Supreme Court’s decision in Booker and Fanfan. Should any party believe there is a need for the district court to exercise jurisdiction prior to the Supreme Court’s decision, it may file a motion seeking issuance of the mandate in whole or in part. Although any petition for rehearing should be filed in the normal course pursuant to Rule 40 of the Federal Rules of Appellate Procedure, the court will not reconsider those portions of its opinion that address the defendant’s sentence until after the Supreme Court’s decision in Booker and Fanfan. In that regard, the parties will have until 14 days following the Supreme Court’s decision to file supplemental petitions for rehearing in light of Booker and Fanfan. . This per curiam opinion was circulated before filing to all active members of this Court. See, e.g., Tesser v. Board of Educ., 370 F.3d 314, 320 n. 3 (2d Cir.2004); Adeleke v. United States, 355 F.3d 144, 155 n. 9 (2d Cir.2004). . In an unpublished order dated-, we summarily rejected all of appellants' other challenges to their convictions and sentences. Accordingly, in this opinion, we outline only those facts necessary to address the Sixth Amendment argument. . Without these enhancements, Ferrell’s base offense level would have been reduced from 34 to 20, which, with a criminal history category of III, would have reduced his Guidelines sentencing range from 188-235 months to 41-51 months. Mincey's base offense level would have been reduced from 22 to 12, which, with a criminal history category of I, would have reduced his Guideline range from 41-51 months to 10-16 months. . Section 2K2.1(b)(1) provides for no enhancement to base offense level if a firearms crime involved fewer than three guns. The enhancement for 3-7 guns is 2 levels; for 8-24 guns, 4" }, { "docid": "9832900", "title": "", "text": "would be used or possessed in connection with another felony offense; and (2) the government engaged in sentence manipulation by programming the Cl to make certain statements while purchasing firearms from the defendant in an effort to enhance his sentence. A. Wagner’s Knowledge of the Intended Use for the Firearms We review the district court’s application of sentencing guidelines de novo, but where the district court bases the application of a sentencing guideline on factual findings, we review for clear error. United States v. Messino, 55 F.3d 1241, 1247 (7th Cir.1995). A factual determination is clearly erroneous only if, after considering all of the evidence, the reviewing court is left with the firm conviction that a mistake has been made. Id. Where there are two permissible inferences from the evidence, the district court’s choice between them cannot be clearly erroneous. United States v. Wyatt, 102 F.3d 241, 246 (7th Cir.1996). Sentencing Guideline § 2K2.1(b)(5) provides, in pertinent part: “If the defendant ... transferred any firearm ... with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense, increase [the offense level] by 4 levels.” Whether a defendant had reason to believe a firearm would be used or possessed in connection with another felony is a factual determination reviewed for clear error. United States v. Inglese, 282 F.3d 528, 539 (7th Cir.2002). Where the defendant protests the application of § 2K2.1(b)(5), the government bears the burden of proving by a preponderance of the evidence that the enhancement is applicable. United States v. Foutris, 966 F.2d 1158, 1160 (7th Cir.1992). Wagner first argues that the evidence does not establish that he heard, understood, or believed the unsolicited statements made by the Cl, and therefore, he did not have the knowledge, intent, or reason to believe that the firearms would be used or possessed in connection with another felony offense. Wagner contends that: (1) the background noise in the store made it difficult for Wagner to hear or understand the Cl’s statements; (2) SA Richardson was not always present or standing next to the" }, { "docid": "15273447", "title": "", "text": "defendant also confessed several times to being in possession of the weapons. That clearly lends even more support to the jury’s verdict. We therefore hold that a rational jury could have found Morris guilty beyond a reasonable doubt. C. Sentencing Enhancement Morris’s last argument is that the district court erred by enhancing his sentence by four offense levels for possessing a firearm in connection with the sale of marijuana. United States Sentencing Guideline § 2K2.1(b)(5) provides for a four-level enhancement if the government proves by a preponderance of the evidence that the defendant possessed a firearm in connection with another felony offense. We review the district court’s decision to apply this sentencing enhancement for clear error, and we will reverse the district court only if “after considering all of the evidence, [we are] left with the definite and firm conviction that a mistake has been committed.” United States v. Wyatt, 102 F.3d 241, 246 (7th Cir.1996). Here, Morris signed a statement admitting that he smokes marijuana and sometimes obtains enough marijuana “to make a little money to pay for rent and still have enough to get high myself.” He further admitted that his last legitimate job was three years before his arrest. In the same statement Morris acknowledged that he keeps the .22-caliber handgun for protection and has had it with him numerous times. Morris was arrested in the basement of his brother’s house, where the police found 2.9 grams of marijuana, bags with trace amounts of marijuana, and a marijuana grow book. The day before Morris was arrested the police found several more bags with trace amounts of marijuana in the trash outside of the residence. Given this evidence, the district court could have found that Morris sold marijuana using his gun for protection. We have previously held that possessing a firearm for protection while selling drugs is using a firearm is used “in connection with” a felony within the meaning of § 2K2.1(b)(5). See United States v. Haynes, 179 F.3d 1045, 1047 (7th Cir.1999). Moreover, the sale of marijuana is a felony offense. See 21 U.S.C. 841(b)(1)(d). The" }, { "docid": "7908482", "title": "", "text": "struggle ensued and police were able to acquire Haynes’ gun, but only after Haynes had kicked and punched two of the police officers. Following Haynes’ arrest, the police discovered that Haynes had more than 30 grams of marijuana on him. The police also searched Garcia and found marijuana on her. Garcia told the police where Haynes had_ stashed the rest of his marijuana and led them to the location, Upon arrival the police recovered another one and a quarter pounds of marijuana. At sentencing, the district court applied U.S.S.G. § 4B 1.4(b)(3)(A) and enhanced Haynes’ offense level because it determined that Haynes possessed the firearm “in connection with” his distribution of marijuana. On appeal, Haynes does not deny that he was engaged in felonious conduct, i.e., the possession with intent to distribute marijuana. Nor does he contend that he was in possession of a firearm at the time of the controlled substance offense. Rather, Haynes argues that the possession of the firearm was merely coincidental to, and not “in connection with,” the distribution of the marijuana and, therefore, an enhanced sentenced was not warranted. II. Discussion The district court’s determination involved a mixed question of fact and law. The district court’s interpretation of the Sentencing Guidelines is reviewed de novo and its findings of fact are reviewed for clear error. United States v. Mattison, 153 F.3d 406, 412 (7th Cir.1998). We begin our analysis by focusing on the lan guage of U.S.S.G. § 4B1.4(b)(3), which states: (b) The offense level for an armed career criminal is the greatest of: (3)(A) 34, if the defendant used or possessed the firearm or ammunition in connection with a crime of violence or controlled substance offense, as defined in § 4B1.2(1), or if the firearm possessed by the defendant was of a type described in 26 U.S.C. § 5845(a)[ ]; or (B) 33, otherwise! ] Id. (emphasis supplied). The Guidelines do not define the phrase “in connection with.” In the absence of any Guideline definition, we must construe the phrase according to its ordinary and natural meaning. See Smith v. United States, 508 U.S." }, { "docid": "8068335", "title": "", "text": "next argument is that the district court improperly enhanced Ms sentence under U.S.S.G. § 2K2.1(b)(5). That Guideline applies to any defendant who “transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” Id. The district court found that Inglese had “reason to believe” that “one or more of [the] guns” that he sold to Officers Korzeniewski or Kelly “would be used in the commission of a felony.” We review this finding for clear error. See United States v. Jemison, 237 F.3d 911, 918 (7th Cir.2001). In Jemison, the defendant planned to sell ten guns that he purchased from an Illinois gun store to members of the Gangster Disciple street gang. See id. at 913. The district court found that the defendant “had reason to believe” that the guns would be used for felonious activities and enhanced the defendant’s sentence by four levels pursuant to U.S.S.G. § 2K2.1(b)(5). See Jemison, 237 F.3d at 915. On appeal, the defendant argued that the district court erred in enhancing his sentence because the government did not show that he “had reason to believe that the [guns] would be used in a specific offense in the future.” Id. at 918 (quotation omitted) (emphasis added). We affirmed the sentencing enhancement even though the district court made no findings regarding whether the defendant knew which of the ten guns he sold would be used to commit a felony or which specific felony the gang members would commit. See id. We held that the defendant “had reason to believe” that the guns he sold would be used to commit a felony because the Gangster Disciples were “an infamous nationwide criminal organization” and because of the connection between street gangs and felonies. Id. In our case, there is ample evidence to suggest that Inglese “had reason to believe” that at least one of the guns he sold to the undercover police officers would be used to commit a felony. U.S.S.G. § 2K2.1(b)(5). For example, Officer Kelly told him that he needed to buy a" }, { "docid": "18245862", "title": "", "text": "firearms in connection with another felony offense. He further asserts that the district court unconstitutionally enhanced his sentence on the basis of factual findings that were neither admitted nor proven to a jury beyond a reasonable doubt. United States v. Booker, — U.S. —, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We address each claim in turn. Caldwell’s presentence report (“PSR”) recommended enhancing his sentence 4 levels because he possessed the firearms in connection with drug trafficking. See U.S.S.G. § 2K2.1(b)(5) (“If the defendant used or possessed any firearm or ammunition in connection with another felony offense ... increase by 4 levels.”). Caldwell objected to the enhancement, asserting that the firearms seized had no potential to facilitate illegal drug activity. Because the weapons were found in close proximity to drugs, drug proceeds, and reported drug activity, the district court overruled Caldwell’s objection to the PSR recommendation and applied the 4-level enhancement. Caldwell renews the objection on appeal, arguing that the firearms were not connected to drug trafficking. The district court’s determination on this issue was a mixed question of law and fact and is reviewed for clear error. United States v. Wyatt, 102 F.3d 241, 246 (7th Cir.1996). “A factual determination is clearly erroneous only if, after considering all of the evidence, the reviewing court is left with the definite and firm conviction that a mistake has been made.” Id. (citations omitted). Caldwell’s challenge to the § 2K2.1(b)(5) enhancement is without merit. As we have observed in past cases, the “in connection with” requirement is usually met where the seized firearms are found in close proximity to drugs, drug paraphernalia, and other obvious indications of drug trafficking. United States v. Patterson, 97 F.3d 192, 195 (7th Cir.1996) (affirming application of enhancement where marijuana and firearms found in same trunk); Wyatt, 102 F.3d at 247-48 (affirming application of enhancement where weapons found in home where defendant distributed and stored drugs, and in close proximity to drug ledgers and drug packaging materials); United States v. Ewing, 979 F.2d 1234, 1238 (7th Cir.1992) (“The seizure of a firearm in close proximity to illegal" }, { "docid": "7908486", "title": "", "text": "United States v. Gary, 74 F.3d 304, 317 (1st Cir.1996) (holding that the “in connection with” language, that appears in both U.S.S.G. § 2K2.1(b)(5) and § 4B1.4(b)(3)(A), should be given identical interpretations). The facts show that the gun facilitated Haynes’ transfer of the marijuana to Rusty. Drug dealers do not bring guns to a deal unless they wish to instill fear in their business associates or they feel the need for protection. Either way, the gun served a purpose in the deal and was therefore used in connection with the felonious conduct. The accessibility and proximity of Haynes’ gun to the two drug transactions support the inference that the gun was possessed in connection with Haynes’ Illegal dealings. See United States v. Ewing, 979 F.2d 1234, 1238 (7th Cir.1992) (“The seizure of a firearm in close proximity to illegal drugs is considered powerful support for the inference that the firearm was used in connection with the drug trafficking operation.”). The inferences drawn by the district court were sufficiently supported by the evidence. We find no error in the district court’s enhancement of Haynes’ offense level because it properly determined that he possessed the firearm in connection with his distribution of marijuana. AFFIRMED." }, { "docid": "23690273", "title": "", "text": "where, inter alia, a defendant possesses a firearm in connection with another felony offense. The district court applied the enhancement to Mr. Shigemura’s Guidelines calculation based on evidence that at the time of his arrest, Mr. Shigemura possessed firearms in connec tion with the state-law offense of transporting funds intended for use in a drug transaction. As discussed below, based on the significant evidence presented by the government that the money found in the vehicle’s trunk constituted either drug proceeds or funds to be used in a drug transaction, the district court did not clearly err in applying the enhancement. 1. Standard of Review “When reviewing the district court’s application of the sentencing guidelines, this Court reviews the district court’s findings of fact for clear error and legal conclusions de novo.” United States v. Beltran, 571 F.3d 1013, 1020 (10th Cir.2009). Under this standard of review, we will not disturb a factual finding of the district court “unless it has no basis in the record,” and “we view the evidence and inferences therefrom in the light most favorable to the district court’s determination.” United States v. Mozee, 405 F.3d 1082, 1088 (10th Cir.2005). 2. The Government Presented Sufficient Evidence to Establish That the Enhancement Applies. Section 2K2.1 (b)(6) applies where a defendant “used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6). Application Note 14 to this section defines “in connection with” as mandating that the enhancement applies “if the firearm or ammunition facilitated, or had the potential of facilitating, another felony offense.” Id. cmt. n. 14(A). The government has the burden of proving, by a preponderance of the evidence, that Section 2K2.1(b)(6) applies. See United States v. Pantelakis, 58 F.3d 567, 568 (10th Cir.1995). In this case, the government argued that Section 2K2.1(b)(6) applied because Mr. Shigemura possessed firearms in connection with the state-law felony offense of concealing or transporting drug proceeds or funds intended" }, { "docid": "23588125", "title": "", "text": "in enacting § 924(e) was to separate out for heightened punishment offenders repeatedly convicted of truly violent crimes. Lest we trivialize that intent, courts construing the reach of the provision must take care to stay .within the guideposts set by Congress. For the foregoing reasons, we remand for resentencing. IV. Weapons Enhancement The district court enhanced Peterson’s sentence for the use of a firearm “in connection with” his narcotics offenses pursuant to U.S.S.G §§ 2K2.1(b)(5) and 4B1.4(b)(3)(A). We review the district court’s application of a particular sentencing guideline de novo, but the factual findings underlying that application are reviewed for clear error. See United States v. Thompson, 32 F.3d 1, 4 (1st Cir.1994). Because we have found that Peterson’s conviction for breaking and entering is not a predicate violent felony, see supra, we do not apply the Sentencing Guideline relevant to armed career criminals, U.S.S.G. § 4B1.4(a), but rather apply only U.S.S.G. § 2K2.1(b)(5), a largely similar provision that applies generally to firearms offenders. Section 2K2.1(b)(5) provides for an offense level enhancement of 4 “if the defendant used or possessed any firearm or ammunition in connection with another felony offense.” We construe the phrase “in connection with” broadly. See United States v. Thompson, 32 F.3d 1, 7 (1st Cir.1994); see also United States v. Ellis, 168 F.3d 558, 563 (1st Gir.1999) (reading same phrase broadly in § 4B1.4(b)(3)(A)). Although there must be a “causal or logical relation or sequence between the possession and the related offense,” and “[m]ere coincidental possession” is insufficient, see Ellis, 168 F.3d at 563, we will find that a firearm has been used “in connection with” an offense “if the possession has ‘the potential to aid or facilitate’ the other crime,” id. (quoting Thompson, 32 F.3d at 6). Wé have not even required physical proximity between the firearms and the narcotics. See Thompson, 32 F.3d at 6 (citing United States v. Brewster, 1 F.3d 51, 54 (1st Cir. 1993)). In this case, the government established at trial that Peterson kept two guns in the same apartment where he stored marijuana. It was also established that a" }, { "docid": "22897007", "title": "", "text": "certainly a gross deviation from the standard of care that a reasonable person would exercise in such a situation. Mr. Brown’s argument that his conduct constituted only “mere flight” simply ignores the evidence and is not supported by the cases he cites. Aplt. Br. at 33-36. III. Enhancement for Firearm Possession in Connection With Another Felony Mr. Brown also argues that the district court erred by enhancing his sen- tenee pursuant to U.S.S.G. § 2K2.1(b)(5) for possessing a firearm in connection with another felony offense. We review a district court’s interpretation of the Sentencing Guidelines de novo, and its factual findings for clear error, giving due deference to the district court’s application of the guidelines to the facts. United States v. Walters, 269 F.3d 1207, 1214 (10th Cir.2001); 18 U.S.C. § 3742(e). We view the evidence and inferences therefrom in the light most favorable to the district court’s determination. Conley, 131 F.3d at 1389. Section 2K2.1(b)(5) of the Sentencing Guidelines provides that “[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense ... increase by 4 levels.” U.S.S.G. § 2K2.1(b)(5). A “felony offense” “means any offense (federal, state or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought, or conviction obtained.” U.S.S.G. § 2K2.1 cmt. n. 7. Except for its plain language, § 2K2.1(b)(5) provides little guidance regarding the nexus required between firearm possession and the felony offense. While we have noted that judicial interpretations of 18 U.S.C. § 924(c) provide “some guidance” in construing § 2K2.1(b)(5)’s “in connection with” requirement, United States v. Gomez-Arrellano, 5 F.3d 464, 466 (10th Cir.1993), we have rejected any assertion that judicial precedent interpreting § 924(c) controls when a sentence may be enhanced under § 2K2.1(b)(5). United States v. Bunner, 134 F.3d 1000, 1006 (10th Cir.1998). “Guided by these principles, we have generally held that if the weapon facilitated or had the potential to facilitate the underlying felony, then enhancement under § 2K2.1(b)(5) is appropriate.” Id. (citing Gomez-Arrellano, 5 F.3d at 466). However, the enhancement is not appropriate if" }, { "docid": "8292120", "title": "", "text": "to seize his gun did create a substantial risk of bodily injury, whether from accidental discharge or the threat of fire from the police.”). These facts sufficiently support the district court’s conclusion that a preponderance of the evidence demonstrated that Bates recklessly created a substantial risk of serious harm to others while fleeing from police. Thus, we affirm the district court’s decision to enhance Bates’s advisory-sentence calculation under § 3C1.2. B. Bates’s second argument is that the district court erred by applying § 2K2.1(b)(6)’s four-point enhancement for possessing a firearm in connection with another felony offense. As stated above, Bates did not raise this issue in his original appeal. Nevertheless, he filed a pro se brief arguing that this enhancement did not apply and, based on the potential merit to his argument, we ordered supplemental briefing on this issue. Section § 2K2.1(b)(6) provides, “If the defendant used or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense, increase by 4 levels.” USSG § 2K2.1(b)(6). The district court assessed this enhancement because it found that Bates’s firearm possession was connected to another felony offense — Bates’s possession of cocaine base. “The district court’s determination that the defendant possessed the firearm[ ] in connection with another felony is a factual finding that we review for clear error.” United States v. Smith, 535 F.3d 883, 885 (8th Cir.2008). Bates argues that because simple possession of less than one gram of cocaine base is not a felony under federal law, the district court erred in finding he possessed the firearm in relation to “another felony offense.” This claim is meritless. “ ‘Another felony offense’, for purposes of [§ 2K2.1](b)(6), means any federal, state, or local offense, other than the explosive or firearms possession or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.” USSG § 2K2.1(b)(6), cmt. (n. 14(C)). Under" }, { "docid": "19902780", "title": "", "text": "case cannot support the district court’s implicit conclusion that Mr. Jeffries’s possession of a firearm “facilitated, or had the potential of facilitating,” the felony offense of cocaine possession as Application Note 14(A) to section 2K2.1 now requires, we VACATE Mr. Jeffries’s sentence and REMAND for re-sentencing. II. Standard of Review In Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007), the Supreme Court bifurcated the process for reviewing a sentence. Under Gall, we must assess whether the issue complained of on appeal constitutes a “significant procedural error.” United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.2008). If it does not, we then review the “substantive reasonableness” of the sentence for abuse of discretion. Id. Arguments about a district court’s application of Sentencing Guideline enhancements fall under the “claim of significant procedural error” heading. United States v. Klein, 543 F.3d 206, 213 (5th Cir.2008) (“An error in applying the guidelines is a significant procedural error that constitutes an abuse of discretion.”) (citing Gall, 128 S.Ct. at 597). In examining such alleged procedural errors, we review the district court’s interpretation of the Sentencing Guidelines de novo, and we review any factual determinations made in sentencing for clear error. Cisneros-Gutierrez, 517 F.3d at 764. “A factual finding is not clearly erroneous as long as it is plausible in light of the record as a whole.” United States v. Brown, 470 F.3d 1091, 1094 (5th Cir.2006) (quotation omitted). III. Discussion Section 2K2.1(b)(6) of the Sentencing Guidelines provides for a four-level enhancement to a sentence for a conviction under § 922(g)(1) where “the defendant used or possessed any firearm ... in connection with another felony offense.” In 2006, the Sentencing Commission issued a new Application Note to that section to provide definition to the phrase “in connection with” in order to resolve “a circuit conflict pertaining to the application of [then] § 2K2.1 (b)(5) [now § 2K2.1(b)(6)] ... specifically with respect to the use of a firearm ‘in connection with’ burglary and drug offenses.” U.S.S.G. app. C. supp., amd. 691, at 177. The Application Notes now provide that" }, { "docid": "11188137", "title": "", "text": "credibility and whether he had reason to know of the illegality of his conduct, a factor relevant to whether the defendant acted willfully, i.e. “intentionally and purposely and with the intent to do something the law forbids” or, put another way, “with the bad purpose to disobey or disregard the law.” Bryan v. United States, 524 U.S. 184, 190, 118 S.Ct. 1939, 141 L.Ed.2d 197 (1998) (internal quotation marks and citation omitted). In Mitchell’s taped interview with the ATF agents, Mitchell conceded that he had “knowledge that the laws of New York are real strict about firearms” because of his prior arrest. (Tr. of Interview (Tape 2, Side A) at 1-2.) Evidence of the arrest was therefore relevant to whether Mitchell’s knew that his conduct was illegal and, nevertheless, decided purposely to disobey or disregard the law. Under these circumstances, such evidence was not impermissibly prejudicial. Mitchell also argues that he should not have received a sentence enhancement pursuant to U.S.S.G. § 2K2.1(b)(5). Under U.S.S.G. § 2K2.1(b)(5), a four-level enhancement is appropriate where a defendant “transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” Here, the district court found that “there was good reason to believe that these guns would be used in future crimes.” (Sentencing Tr. at 23.) We review the district court’s factual findings for clear error. United States v. Dodge, 61 F.3d 142, 146 (2d Cir.1996). In United States v. Martin, 78 F.3d 808, 812-13 (2d Cir.1996), we held that a four? level sentence enhancement was appropriate under this guideline where a defendant who sold firearms could foresee future felonies by the purchaser. In particular, we found that the defendant, who sold more than 100 “low-grade, easily concealable, inexpensive semi-automatic pistols,” id. at 810, had reason to believe that the guns he sold would be resold on the street and “be used to commit other felonies,” id. at 812. Moreover, our circuit has long recognized the connection between drug trafficking and firearms, repeatedly permitting firearms into evidence as proof of narcotics" }, { "docid": "20518837", "title": "", "text": "guidelines is de novo, but we review for clear error when the application of a sentencing guideline is based on factual findings. United States v. Meece, 580 F.3d 616, 620 (7th Cir.2009). Schmitt argues that the district court erred in applying a four-level enhancement to his offense level under United States Sentencing Guideline § 2K2.1(b)(6)(B) because the gun was not used or possessed “in connection with” another felony offense because the firearm was only in his home for a day and was not readily accessible in the basement. “Review of a district court’s sentencing enhancement under U.S.S.G. § 2K2.1(b)(6) is a mixed question of fact and law that we review for clear error.” Id. at 620-21 (quoting United States v. Markovitch, 442 F.3d 1029, 1031 (7th Cir.2006) (internal alterations omitted)). United States Sentencing Guideline § 2K2.1(b)(6)(B) calls for a four-point enhancement to a defendant’s base offense level if the defendant “[u]sed or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The second clause of the provision refers to a defendant’s actions which facilitate another person’s commission of a felony offense, see United States v. Lang, 537 F.3d 718, 721 (7th Cir.2008), which is not at issue here. So we are left to consider whether Schmitt used or possessed the AR-15 assault rifle in connection with another felony offense. There are two ways to approach this question. The enhancement would be proper if Schmitt “used or possessed” the firearm in connection with (1) his general drug dealing activities in his home or (2) the purchase of the firearm, which he allegedly bought with drugs. Because we find that Schmitt possessed the gun in connection with the drug deal he allegedly executed to buy the firearm, we need not decide whether the firearm was close enough in proximity to the drugs or in a readily accessible place sufficient to raise the inference that Schmitt had the firearm “in" }, { "docid": "20518836", "title": "", "text": "other than to impeach the government’s witness, the district court should have redacted the portion of the conviction record pertaining to the methamphetamine, or simply allowed the government to read the relevant portion of the conviction into the record. But the prosecution’s case would not have been “significantly less persuasive had the improper evidence been excluded.” Loughry, 660 F.3d at 975. There was already ample evidence before the jury to suggest that Schmitt was a drug dealer, which could lead a reasonable juror to infer that he had a reason to have a firearm. Being a user of drugs does not necessarily carry the same connotation, so removing the additional evidence that Schmitt used methamphetamine and pills would not have made the government’s case that he possessed the firearm “significantly less persuasive.” So we find that the error in admitting it was harmless. C. No Error in Schmitt’s Sentence Schmitt’s final argument is that the district court erred in determining his offense level for sentencing purposes. Our review of the district court’s application of sentencing guidelines is de novo, but we review for clear error when the application of a sentencing guideline is based on factual findings. United States v. Meece, 580 F.3d 616, 620 (7th Cir.2009). Schmitt argues that the district court erred in applying a four-level enhancement to his offense level under United States Sentencing Guideline § 2K2.1(b)(6)(B) because the gun was not used or possessed “in connection with” another felony offense because the firearm was only in his home for a day and was not readily accessible in the basement. “Review of a district court’s sentencing enhancement under U.S.S.G. § 2K2.1(b)(6) is a mixed question of fact and law that we review for clear error.” Id. at 620-21 (quoting United States v. Markovitch, 442 F.3d 1029, 1031 (7th Cir.2006) (internal alterations omitted)). United States Sentencing Guideline § 2K2.1(b)(6)(B) calls for a four-point enhancement to a defendant’s base offense level if the defendant “[u]sed or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or" }, { "docid": "14531713", "title": "", "text": "the evidence of Mack’s drug use might have made admission of the prior arrests improper, any error in this regard was harmless. IV. We review the district court’s application of the Sentencing Guidelines de novo. United States v. Scolaro, 299 F.3d 956, 957 (8th Cir.2002). We review factual findings of the district court in applying the Sentencing Guidelines for clear error. United States v. Johnson, 60 F.3d 422, 423 (8th Cir.1995). The district court’s findings regarding a defendant’s purpose for possessing a firearm are factual findings subject to clear error review. Id. U.S.S.G. § 2K2.1(b)(5) provides a four level enhancement if a defendant “used or possessed any firearm or ammunition in connection with another felony offense ...” Id. “ ‘Felony offense’ as used in subsection (b)(5), means any offense (federal, state, or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought, or conviction obtained.” Application Note 7 to U.S.S.G. § 2K2.1. It is undisputed that tampering in the first degree is a felony offense. Mack argues that the government did not prove by a preponderance of the evidence that the firearms he possessed at the time of arrest were possessed “in connection with” the felony offense of tampering. United States v. Hammer, 3 F.3d 266, 272 (8th Cir.1993) (setting forth preponderance of the evidence standard for sentencing determinations). Specifically, Mack argues that, because the government failed to present evidence tending to show how the firearms were used in the commission of the felony offense of tampering, there could be no finding that they were “used or possessed in connection” with the other offense. We disagree. The district court did not clearly err in determining that the driver of a stolen vehicle containing four handguns used or possessed those handguns in connection with the underlying felony of tampering with the same vehicle. We held in Scolaro, 299 F.3d at 957, that U.S.S.G. § 2K2.1(b)(5) does not require proof of use of the firearm in the commission of the underlying felon. Rather, the government need only prove that the firearm was used or" } ]

[ { "docid": "8625349", "title": "", "text": "and determined they could not be individually liable under state law. Id. at 386. (“Restated, the conduct at issue did not involve personal fault giving rise to liability under Louisiana Law.”). The court held that there was “nothing in the record” to satisfy the third and fourth factors. Id. at 386 (“The evidence does not show that Paul had personal knowledge of the condition of the valves ... [and] Paul did not personally perform the valve swap.”). Thus, the individual defendants were improperly joined because the defendant demonstrated that there is no reasonable basis for the district court to predict that the plaintiff could recover against the in-state defendants. Id. at 386-87. Similarly, CVS has established that Mumfrey cannot satisfy the second element of tortious interference. Under Texas law, the elements of tortious interference with contract are: (1) the existence of a contract, (2) willful and intentional interference, (3) interference that proximately caused damage, and (4) actual damage or loss. Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 456 (Tex.1998) (citing ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.1997)). “When the defendant is both a corporate agent and the third party who allegedly induces the corporation’s breach, the second element is particularly important.” Id. at 456-57. To maintain a tortious interference suit against a corporate agent or representative, a plaintiff must show that the agent acted willfully and intentionally to serve the agent’s personal interests at the corporation’s expense. Id. at 457. Even an agent’s mixed motives — benefit-ting himself and the corporation — are insufficient. Id. The Texas Supreme Court has provided guidance on determining when an corporation’s agent is acting against the corporation’s interests: If a corporation does not complain about it’s agents actions, then the agent cannot be held to have acted contrary to the corporation’s interests. Id. (citing Morgan Stanley & Co. v. Tex. Oil Co., 958 S.W.2d 178, 181-82 (Tex.1997)). Mumfrey alleged the following acts on the part of the individual defendants: Le-Blanc retaliated by telling Mumfrey he was going to “rip the chair out” of the pharmacy;' LeBlanc wrote Mumfrey up and" } ]

[ { "docid": "11502450", "title": "", "text": "Co., 958 S.W.2d at 182). Contrary to Kroger’s contention, however, an at-will employment relationship is subject to tortious interference. “Texas law firmly supports the contractual nature of an at-will employment relationship .... ” Fadeyi v. Planned Parenthood Assoc., 160 F.3d 1048, 1050 (5th Cir.1998). The Texas Supreme Court has recognized that an at-will employment relationship is a contract, notwithstanding that either party may terminate it at will. See id. Thus, until an employee is terminated, “third persons are not free to tortiously interfere with contracts which are terminable-at-will.” Knox v. Taylor, 992 S.W.2d 40, 57 (Tex.App.-Houston [14th Dist.] 1999, no pet.)(citing Sterner, 767 S.W.2d at 689). Therefore, “it is no defense to an action for tortious interference that a contract is terminable at will.” Knox, 992 S.W.2d at 58 (citing Juliette Fowler Homes, Inc., 793 S.W.2d at 666); Sterner, 767 S.W.2d at 689; Massey, 902 S.W.2d at 85. Here, Martin has failed to present evidence that Hémbree willfully or intentionally interfered with her relationship with Kroger.' There is no indication that Hembree’s actions or inaction were motivated by his personal interests or contrary to Kroger’s interests. There is also no suggestion that Kroger ever complained about Hembree’s actions with, respect to Martin. Thus, Martin cannot establish a prima facie case of tortious interference with existing business relations based on Hembree’s conduct. Furthermore, to the extent Martin’s claim of tortious interference with existing business relations is merely a restatement of her employment discrimination claim, it is foreclosed by the TCHRA. “The TCHRA provides the exclusive state-law means for redress of employment discrimination and preempts claims for discrimination brought under other state-law theories.” Cook v. Fidelity Invs., 908 F.Supp. 438, 442 (N.D.Tex.1995) (holding claim for negligent supervision brought by black employee complaining of company’s failure to prevent racial discrimination to be preempted by TCHRA) (citing Vincent, 895 S.W.2d at 473-74 (finding TCHRA to preempt claim of retaliatory discharge brought under the Texas Tort Claims Act); Stinnett v. Williamson County Sheriff’s Dep’t., 858 S.W.2d 573, 576-77 (Tex.App.—Austin 1993, writ denied) (finding claim of retaliatory discharge under Whistle Blower Act to be preempted by" }, { "docid": "3934248", "title": "", "text": "(3) that the intentional interference was a proximate cause of damage to Ulrich; and (4) that Ulrich suffered actual damage and loss. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 939 (Tex.1991); Eads v. American Bank, 843 S.W.2d 208, 210 (Tex.App.—Waco 1992, no writ). “A party to a business relationship cannot tortiously interfere with himself.” American Medical Int’l v. Giurintano, 821 S.W.2d 331, 335 (Tex.App.—Houston [14th Dist.] 1991, no writ); Baker v. Welch, 735 S.W.2d 548, 549 (Tex.App.—Houston [1st Dist.] 1987, writ dism’d w.o.j.); Frost Nat’l Bank v. Matthews, 713 S.W.2d 365, 369 (Tex. App.—Texarkana 1986, writ ref'd n.r.e.). Instead, liability must be founded upon the acts of an interfering third party. Schoellkopf v. Pledger, 778 S.W.2d 897, 902 (Tex.App.—Dallas 1989, writ denied); Baker, 735 S.W.2d at 549. Thus, as a party to Ulrich’s employment relationship, Exxon is legally incapable of tortiously interfering with its own relationship. Similarly, an employee or agent, such as Lawley, generally is not regarded as a third party. Baker, 735 S.W.2d at 549. Rather, his legal identity is that of his principal, Id. Thus, an employee generally is not personally liable for interference with his employer’s business relations. Id.; Gonzalez v. Gutierrez, 694 S.W.2d 384, 388 (Tex. App.—-San Antonio 1985, no writ); Terry v. Zachry, 272 S.W.2d 157, 160 (Tex.Civ.App.—San Antonio 1954, writ ref'd n.r.e.). It is only where the employee is acting beyond his authority and in furtherance of personal objectives, can the employee’s actions constitute tortious interference. See B., Inc. v. Miller Brewing Co., 663 F.2d 545, 553 (5th Cir.1981). It must be established that the employee was motivated by personal animus or greed. Id. In his complaint, Ulrich alleges that “[m]otivated by personal animosity for his personal purposes and utilizing the authority vested in him as a managing agent of Exxon Company, U.S.A., to make and implement policy with respect to Plaintiff, James R. Lawley, has engaged in a series of malicious and intentional actions to intimidate, harass, disparage, and disadvantage the plaintiff.” While Ulrich alleges that Lawley was motivated by personal animosity, he has presented no summary judgment evidence" }, { "docid": "6800533", "title": "", "text": "Brady, 811 S.W.2d 931 (Tex.1991)); Weakly v. East, 900 S.W.2d 755, 759 (Tex.App.1995); Holloway v. Skinner, 898 S.W.2d 793, 795 (Tex.1995). Uniformly, intent to interfere with the contractual or business relationship is considered the sine qua non of the torts, and it therefore must be pleaded in the complaint in order to escape dismissal. TransWorld Airlines, Inc. v. American Coupon Exch., Inc., 913 F.2d 676, 690 (9th Cir.1990) (in actions for inducing breach of contract or for intentional interference with economic advantage “it is essential that plaintiff plead and prove that the defendant intended to induce a breach ... [or performed] intentional acts ... designed to disrupt the relationship”) (citation omitted) (applying California law); Rickel v. Schwinn Bicycle Co., 144 Cal. App.3d 648, 192 Cal.Rptr. 732, 738 (1983) (must allege “some facts that take defendant’s actions out of the realm of legitimate business transactions”); Kand Med., Inc. v. Freund Med. Prods., Inc., 963 F.2d 125, 127 (6th Cir.1992) (recognizing that merely causing a breach of contract is insufficient to establish tortious interference in the absence of the requisite intent to induce the breach) (applying Ohio law); Cole v. Hall, 864 S.W.2d 563, 567 n. 6 (Tex.App.1993) (must plead element of intent, and mere allegation that defendant committed tortious interference by “falsely reporting her wages” is insufficient in the absence of an allegation that she “intentionally reported her wages falsely”); see Prosser and Keeton on the Law of Torts, supra, §§ 129 & 130, at 983 and 1009 (discussing the fact that liability for both types of tortious interference hinges on the defendants’ purpose in causing the interference and that liability will be found only where “the reason underlying [defendant’s] interference is a purely malevolent one, and a desire to do harm to the plaintiff for its own sake.”) Read liberally, I construe the contractual interference claim as alleging that UCC&P caused UCMC to breach its existing contracts with the franchisees when, as a parent corporation seeking to cut its losses, it made a hasty decision, based on the fact that it was losing money, to sell its subsidiary to a" }, { "docid": "23446177", "title": "", "text": "under § 1985(3). In Hilliard, the court stated that, under § 1985(3), plaintiffs must show that the alleged conspiracy was “motivated by class-based animus.” 30 F.3d at 653. Here, the Plaintiffs’ allegations fail to show that the purported, conspiracy was motivated by class-based animus. Rather, the Plaintiffs’ § 1985(3) claim is based on the theory that Runnels’ desire to get even with those who forced his father to resign was the motivation for the conspiracy. IV. Tortious Interference with a Business Relationship The Plaintiffs’ allegations fail to state a claim for tortious interference with business relations. Generally, as agents of the city, the Defendants cannot be liable for interference with the city’s contracts. See Holloway v. Skinner, 898 S.W.2d 793, 796 (Tex.1995). An agent may be liable, however, where he acts in furtherance of his own personal interests. See id. In Holloway, the court stated that, in order to prove personal interest the “plaintiff must show that the defendant acted in a fashion so contrary to the corporation’s interests that his actions could only have been motivated by personal interests.” Id. Proof of mixed motives is insufficient to create liability. See id. In this case, the Plaintiffs fail to allege facts showing that the Defendants’ actions could only have been motivated by personal interests. At best, the Plaintiffs’ contentions indicate that the Defendants acted with mixed motives and are, therefore, legally insufficient. V. Intentional Infliction of Emotional Dis-' tress The district court granted the Defendants’ motion for summary judgment with regard to Frankhouser on the issue of intentional infliction of emotional distress. This appeal involves only Grant and Benningfield’s intentional infliction of emotional distress claims. The elements of intentional infliction of emotional distress are: (1) the defendant acted either intentionally or recklessly; (2) the conduct was extreme or outrageous; (3) the defendant’s actions caused the plaintiff emotional distress; and (4) the emotional distress was severe. See Ugalde v. W.A. McKenzie Asphalt Co., 990 F.2d 239, 243 (5th Cir.1993) (citing Dean v. Ford Motor Credit Co., 885 F.2d 300, 306 (5th Cir.1989)). Grant’s allegations are sufficient to withstand summary judgment with" }, { "docid": "19870606", "title": "", "text": "actions were clearly taken in his corporate capacity); Giblin v. Murphy, 97 A.D.2d 668, 670, 469 N.Y.S.2d 211, 214-15 (3d Dep't 1983) (holding that once a court pierces the corporate veil, a corporation’s shareholders cannot be held liable for tortiously interfering with contracts of the company), appeal dismissed, 62 N.Y.2d 605, 479 N.Y.S.2d 1025, 468 N.E.2d 57 (1984); Holloway v. Skinner, 898 S.W.2d 793, 797 (Tex.1995) (“When there is a complete identity of interests [between the party to the contract and the alleged tortfeasor], there can be no interference as a matter of law.”); Schoellkoprf v. Pledger, 778 S.W.2d 897, 902-04 (Tex.Ct.App.1989) (holding that \"individuals who own, control, and dominate a closely held corporation” cannot tortiously interfere with their corporation's contracts). . Republic of Italy v. De Angelis, 206 F.2d 121, 131 (2d Cir.1953) (Clark, J., concurring) (\"[D]i- rectors, officers, and others interested in a corporation and acting in good faith in the corporate interest are not to be held [liable] for corporate actions which may constitute breaches of contract.”); Morast v. Lance, 631 F.Supp. 474, 482 (N.D.Ga.1986) (holding that, under Georgia law, directors who ordered their corporate subsidiary to fire plaintiff could not be held liable for tor-tious interference with his employment rights, because they were not “third parties\" in relation to the employment relationship), aff'd, 807 F.2d 926 (11th Cir.1987); Swager v. Court, 77 Ill.2d 173, 187-91, 32 Ill.Dec. 540, 545-47, 395 N.E.2d 921, 926-28 (1979) (explaining that “corporate officers who, 'in accordance with their business judgment and discretion,’ interfere with their corporation's contractual relations lack the requisite malice’ and therefore are not liable in tort”) (citation omitted); King v. Driscoll, 418 Mass. 576, 587, 638 N.E.2d 488, 494-95 (1994) (rejecting a claim of tortious interference with contract against a corporate officer, for failure to show that his actions were prompted by “a spiteful, malignant purpose, unrelated to the legitimate corporate interest”) (citation omitted); Murray v. Ray, 862 S.W.2d 931, 934-35 (Mo.Ct.App.1993) (holding that a person with an economic interest in a contract cannot be, held liable for inducing a breach of the contract even though motivated by" }, { "docid": "11502446", "title": "", "text": "the engineers were — someone .talked to the engineers. The engineers didn’t want to socialize and talk to me about anything other than the dispatchers that — the girls asked me what was going on. Q: You didn’t have an employment contract with Kroger, did you? ****** A: No. Q: In other words, you understood that your employment with Kroger was at will; right? A: Right. Texas courts recognize actions for tortious interference with both existing and prospective contracts. See Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 664 (Tex.1990); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 689 (Tex.1989); Hart v. Attorneys-At-Law, No. 01-97-00890-CV, 1999 WL 2391, at *5 (Tex.App.-Houston [1st Dist.] Dec. 30, 1998, no pet.); Doe v. SmithKline Beecham Corp., 855 S.W.2d 248, 258 (Tex.App.-Austin 1993), aff'd as modified, 903 S.W.2d 347 (1995); Exxon Corp. v. Allsup, 808 S.W.2d 648, 659 (Tex.App.-Corpus Christi 1991, writ denied). “These two torts differ primarily in that interference with prospective relations, requires the plaintiff! ] to prove both that [she] had a reasonable probability of obtaining a contract and that the defendant acted with malice.” Thrift v. Estate of Hubbard, 44 F.3d 348, 357 (5th Cir.1995). 1. Existing Business Relations To establish a claim for tortious interference with existing contractual relations, the plaintiff must prove: (1) the existence of a contract subject to interference; (2) willful and intentional interference; (3) proximate cause; and (4) actual damage or loss. Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 456 (Tex.1998) (citing ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.1997)); Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 939 (Tex.1991); Massey v. Houston Baptist Univ., 902 S.W.2d 81, 85 (Tex.App.-Houston [1st Dist.] 1995, writ denied). “Texas law recognizes that a party to a contract has a cause of action for tortuous [sic] interference against a third party, (meaning a stranger of the contract) who wrongfully interferes with the contract.” Probst v. Ryder Truck Rental, Inc., No. Civ.A. 3:97-CV-2521-P, 1999 WL 184127, at *9 (N.D.Tex. Mar. 29, 1999) (citing Holloway v. Skinner, 898 S.W.2d 793, 796 (Tex.1995)). When," }, { "docid": "4374261", "title": "", "text": "merely fictions); Academy Plaza L.L.C.1 v. Bryant Asset Management, No. 2774, 2006 WL 1652687 (Pa. Comm. PL June 9, 2006) (looking at the closeness of the relationship between the parent and subsidiary in determining whether the two corporations are sufficiently separate to form a conspiracy); SEECO, Inc., 22 S.W.3d at 157 (reasoning that if the parent and subsidiary were separate enough to contract with each, they were certainly separate enough to form a conspiracy). . See Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 771-72, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984); Grizzle v. Tex. Commerce Bank, N.A., 38 S.W.3d 265, 284 (Tex. App.-Dallas 2001, pet. granted), rev’d in part on other grounds, 96 S.W.3d 240 (Tex.2002); Atl. Richfield Co. v. Long Trusts, 860 S.W.2d 439, 447 (Tex.App.-Texarkana 1993, writ denied) (criticizing one other sister court for \"ignor[ing] the antitrust distinctions”); Metro. Life Ins. Co. v. La Mansion Hotels, 762 S.W.2d 646, 651-52 (Tex.App.-San Antonio 1988, writ dism’d as moot); Valores Corporativos, S.A. de C.V. v. McLane Company, Inc., 945 S.W.2d 160 (Tex.App.-San Antonio 1997); Holloway v. Atl. Richfield Co., 970 S.W.2d 641, 644 (Tex.App.-Tyler 1998, no writ) (all distinguishing Copperweld as limited to the Sherman Act). . The court in the Northern District relied upon the Supreme Court of Texas opinion, Holloway v. Skinner, 898 S.W.2d 793 (Tex.1995). That case cited Copperweld favorably and without necessarily limiting its application to the antitrust context. Holloway was a case dealing with tortious interference in which the court held that the plaintiff must show that the defendant acted in a fashion \"... so contrary to the corporation’s best interest that his actions could only have been motivated by personal interest.” Id. at 796. This is analogous to the allegations in this case. See also, Maxey v. Citizens National Bank, 507 S.W.2d 722 (Tex.1974). . This Court, in doing so, recognizes that this ruling is not critical to the resolution of the issue,' but makes this ruling because both parties raised Texas as a possible alternative. .Under the most significant relationship test, this Court determined that Arizona is the state with the" }, { "docid": "1636421", "title": "", "text": "contained a sovereignty exception. By the fall of 1989, both parties were aware that this exception encompassed the possibility of a claim to a portion of Devil’s Hammock by the State of Florida. The DNR’s February letter merely clarified the fact that Stack could not convey marketable title at the end of the 120-day period. Denson had two options when Stack was unable to produce marketable title after the 120-day period. First, he could accept title as it then existed. Second, he could have demanded a refund of all monies paid. There was no time constraint placed on the exercise of these options. The district court found that Denson did not demand a refund of his deposit in compliance with the terms of the contract. The general Florida rule is that when a contract does not expressly fix the time for performance of its terms, the law will imply a reasonable time. Greenwood v. Rotfort, 158 Fla. 197, 28 So.2d 825, 831 (1946); Fleming v. Burbach Radio, Inc., 377 So.2d 723, 724 (Fla.Dist.Ct.App.1979). Throughout the fall of 1989, Denson and Stack attempted to resolve Denson’s objections to the sovereignty exception. These attempts continued into January and February 1990, after the expiration of the 120-day period. After learning that the bank had transferred the $300,000 earnest money with interest from the escrow account to Stack’s personal account, Denson immediately objected and requested that Stack either return the money or file a suit to quiet title against the State of Florida. After Stack refused to file suit, Denson requested the return of the $300,000 and interest. The district court’s finding that Denson did not act to recover the deposit in a timely manner is clearly erroneous. Denson acted to recover his deposit within a reasonable period. Both parties attempted to find a solution to the sovereignty exception even after the 120-day period. Denson should not be penalized for failing to immediately demand the return of the earnest money when both parties were acting in good faith to close the transaction. Therefore, Denson is entitled to the return of the $300,000 and interest." }, { "docid": "23446176", "title": "", "text": "allege that the defendants conspired to deprive them of their First Amendment and equal protection rights. Under § 1985(3), a corporate entity and its employees constitute a “single legal entity which is incapable of conspiring with itself.” Hilliard v. Ferguson, 30 F.3d 649, 653 (5th Cir.1994) (holding that a school board and its employees constituted a single legal entity which could not conspire with itself for § 1985(3) purposes). A possible exception to the intracorporate conspiracy doctrine exists where corporate employees act for their own personal purposes. See Domed Stadium Hotel, Inc. v. Holiday Inns, Inc., 732 F.2d 480, 486 n. 5 (5th Cir.1984); H & B Equipment Co., Inc. v. International Harvester Co., 577 F.2d 239, 244 (5th Cir.1978). The Plaintiffs allege that Runnels’s father was forced to resign because of their grievances and, therefore, Runnels had a personal motive for retaliating. Further, the Plaintiffs maintain that the other Defendants conspired with Runnels and aided in the retaliation. Assuming the allegations of a personal motive are true, the Plaintiffs fail to state a claim under § 1985(3). In Hilliard, the court stated that, under § 1985(3), plaintiffs must show that the alleged conspiracy was “motivated by class-based animus.” 30 F.3d at 653. Here, the Plaintiffs’ allegations fail to show that the purported, conspiracy was motivated by class-based animus. Rather, the Plaintiffs’ § 1985(3) claim is based on the theory that Runnels’ desire to get even with those who forced his father to resign was the motivation for the conspiracy. IV. Tortious Interference with a Business Relationship The Plaintiffs’ allegations fail to state a claim for tortious interference with business relations. Generally, as agents of the city, the Defendants cannot be liable for interference with the city’s contracts. See Holloway v. Skinner, 898 S.W.2d 793, 796 (Tex.1995). An agent may be liable, however, where he acts in furtherance of his own personal interests. See id. In Holloway, the court stated that, in order to prove personal interest the “plaintiff must show that the defendant acted in a fashion so contrary to the corporation’s interests that his actions could only have" }, { "docid": "1636426", "title": "", "text": "right to the property or a benefit therefrom. (b) Appropriate the property to his own use or to the use of any person not entitled thereto. Id. at § 812.014. Under the terms of the civil statute, the district court was required to find that Denson’s claim was without substantial factual or legal support before awarding attorney’s fees and costs to Stack. Id. at § 772.-11. We review the district court’s findings for clear error. Under Florida law, a conversion occurs in violation of the criminal theft statute when a person who has a right to possession of property demands its return, and the property is not relinquished. Senfeld v. Bank of Nova Scotia Trust Co., 450 So.2d 1157, 1161 (Fla.Dist.Ct.App.1984); see Rosenthal Toyota, Inc. v. Thorpe, 824 F.2d 897, 901 (11th Cir.1987). In this case, the bank acted independently in transferring funds from the escrow account to Stack’s personal account and then applying the money to Stack’s other debts. Although Stack was made aware of this transfer by Denson, he refused to return the deposit money back to the escrow account or to Denson. As noted above, Stack was not entitled to keep the deposit and interest. Under these circumstances, the district court’s finding that Stack was entitled to attorney’s fees and costs under the civil theft statute is clearly erroneous. Even though Denson was not victorious in his civil theft claim, there was substantial factual and legal support for it. Therefore, we reverse the district court’s award of attorney’s fees and costs. III. CONCLUSION The district court improperly concluded that Stack was in a position to convey marketable title to Denson and that Denson did not request the return of the earnest money deposit in a timely manner. Denson is, therefore, entitled to the return of the deposit and accumulated interest. The award of attorney’s fees and costs to Stack under the contract is reversed because Denson is the prevailing party. We remand .to the district court to determine Denson’s attorney’s fees and costs and to enter judgment for same. Finally, the district court improperly awarded attorney’s fees" }, { "docid": "11502447", "title": "", "text": "probability of obtaining a contract and that the defendant acted with malice.” Thrift v. Estate of Hubbard, 44 F.3d 348, 357 (5th Cir.1995). 1. Existing Business Relations To establish a claim for tortious interference with existing contractual relations, the plaintiff must prove: (1) the existence of a contract subject to interference; (2) willful and intentional interference; (3) proximate cause; and (4) actual damage or loss. Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 456 (Tex.1998) (citing ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.1997)); Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 939 (Tex.1991); Massey v. Houston Baptist Univ., 902 S.W.2d 81, 85 (Tex.App.-Houston [1st Dist.] 1995, writ denied). “Texas law recognizes that a party to a contract has a cause of action for tortuous [sic] interference against a third party, (meaning a stranger of the contract) who wrongfully interferes with the contract.” Probst v. Ryder Truck Rental, Inc., No. Civ.A. 3:97-CV-2521-P, 1999 WL 184127, at *9 (N.D.Tex. Mar. 29, 1999) (citing Holloway v. Skinner, 898 S.W.2d 793, 796 (Tex.1995)). When, like Hem-bree, the defendant is both a corporate agent and the third party who allegedly induced the corporation’s breach, the second element is of particular importance. See Powell Indus., Inc., 985 S.W.2d at 456 (citing Holloway, 898 S.W.2d at 796). That is because, by definition, a party to a contract cannot tortiously interfere with his own contract. See Probst, 1999 WL 184127, at *9; Holloway, 898 S.W.2d at 796; Hussong v. Schwan’s Sales Enters., Inc., 896 S.W.2d 320, 326 (Tex.App.—Houston [1st Dist.] 1995, no writ). When the act of interference is allegedly committed by an individual who is also the lawful representative of the contracting party, the plaintiff must establish that the alleged act of interference was performed in furtherance of the defendant’s personal interest, so as to preserve the rule that a party cannot tortiously interfere with his own contract. See Powell Indus., Inc., 985 S.W.2d at 456-57; ACS Investors, Inc., 943 S.W.2d at 432; Holloway, 898 S.W.2d at 796. In other words, “[t]he plaintiff must prove that the agent acted willfully and intentionally" }, { "docid": "2323988", "title": "", "text": "own personal interests, see Stafford v. Puro, 63 F.3d 1436, 1442 (7th Cir. 1995) (“Directors and officers are not justified in acting solely for their own benefit or solely in order to injure the plaintiff because such conduct is contrary to the best interests of the corporation.”); Powell v. Feroleto Steel Co., 659 F.Supp. 303, 307 (D.Conn.1986); Phillips v. Montana Educ. Ass’n, 187 Mont. 419, 610 P.2d 154,158 (1980); see also Holloway v. Skinner, 898 S.W.2d 793, 796 (Tex. 1995) (noting that the personal benefit exception is the logically necessary corollary to the “rule that a party cannot tortiously interfere with its own contract”). Since Anson was insolvent, see infra Section II.B.2(f), Considine’s own investment in Anson was negligible at best, and the trial record discloses that he not only acted intentionally to evade Anson’s obligation to Peters, but at the same time negotiated for himself a $200,000 consulting fee. Thus, the circumstantial evidence and the Considine memoranda to Fleet generated a trialworthy issue as to whether Considine acted with “legal malice.” See Mesolella, 508 A.2d at 669-70; see, e.g., Dallis v. Don Cunningham & Assocs., 11 F.3d 713, 717-18 (7th Cir.1993) (upholding jury verdict against corporate officer who had directed corporation not to pay plaintiff his sales commissions, and where the officer’s “own compensation ... skyrocketed” during the relevant time period); see also, e.g., Chandler v. Bombardier Capital, Inc., 44 F.3d 80, 83 (2d Cir.1994) (upholding jury verdict against corporate officer who induced plaintiff's dismissal, then personally took charge of plaintiff's department). This is not a call the district court could make on a motion for judgment as a matter of law. On the other hand, the tortious interference claim against Fleet fails because Peters did not name Fleet as a defendant in this count, nor move to amend when Fleet brought the omission to Peters’ attention. Cf. supra note 23. Even if Peters had not abandoned its claim, moreover, it cites no apposite supporting case law. See Carlton, 923 F.2d at 3 (plaintiff who selects federal forum not entitled to trailblazing interpretations of state law). Fleet unquestionably had" }, { "docid": "3934249", "title": "", "text": "that of his principal, Id. Thus, an employee generally is not personally liable for interference with his employer’s business relations. Id.; Gonzalez v. Gutierrez, 694 S.W.2d 384, 388 (Tex. App.—-San Antonio 1985, no writ); Terry v. Zachry, 272 S.W.2d 157, 160 (Tex.Civ.App.—San Antonio 1954, writ ref'd n.r.e.). It is only where the employee is acting beyond his authority and in furtherance of personal objectives, can the employee’s actions constitute tortious interference. See B., Inc. v. Miller Brewing Co., 663 F.2d 545, 553 (5th Cir.1981). It must be established that the employee was motivated by personal animus or greed. Id. In his complaint, Ulrich alleges that “[m]otivated by personal animosity for his personal purposes and utilizing the authority vested in him as a managing agent of Exxon Company, U.S.A., to make and implement policy with respect to Plaintiff, James R. Lawley, has engaged in a series of malicious and intentional actions to intimidate, harass, disparage, and disadvantage the plaintiff.” While Ulrich alleges that Lawley was motivated by personal animosity, he has presented no summary judgment evidence to support that assertion. All the actions about which Ulrich complains fall within the normal course and scope of a supervisor’s duties. Ulrich admits that Lawley was “utilizing the authority vested in him as a managing agent of Exxon” to perpetuate the allegedly wrongful conduct. Moreover, elsewhere in his complaint, Ulrich alleges that Exxon ratified and adopted Lawley’s acts, which also places them within the course and scope of his employment. In any event, Ulrich cannot rest solely on his pleadings in opposing defendants’ motion for summary judgment. To prevail, Ulrich must set forth specific facts showing the existence of a genuine issue for trial. Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2552-53; Anderson, 477 U.S. at 257, 106 S.Ct. at 2514; Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1355-56. Bare assertions, unsupported by facts, are insufficient to defeat summary judgment. Williams, 839 F.2d at 1041; Miller v. GTE Corp., 788 F.Supp. 312, 315 (S.D.Tex.1991). Because Ulrich has set forth no facts showing that Lawley was furthering his personal objectives in dealing with" }, { "docid": "1636422", "title": "", "text": "fall of 1989, Denson and Stack attempted to resolve Denson’s objections to the sovereignty exception. These attempts continued into January and February 1990, after the expiration of the 120-day period. After learning that the bank had transferred the $300,000 earnest money with interest from the escrow account to Stack’s personal account, Denson immediately objected and requested that Stack either return the money or file a suit to quiet title against the State of Florida. After Stack refused to file suit, Denson requested the return of the $300,000 and interest. The district court’s finding that Denson did not act to recover the deposit in a timely manner is clearly erroneous. Denson acted to recover his deposit within a reasonable period. Both parties attempted to find a solution to the sovereignty exception even after the 120-day period. Denson should not be penalized for failing to immediately demand the return of the earnest money when both parties were acting in good faith to close the transaction. Therefore, Denson is entitled to the return of the $300,000 and interest. In summary, the district court improperly concluded that Stack possessed marketable title to Devil’s Hammock and that Denson did not timely demand a refund of the earnest money deposit. Because Stack could not convey marketable title, Denson had the right either to take the title with the defect or to demand the return of his deposit. Den-son demanded the return of the deposit after further attempts between Denson and Stack to close the deal were unsuccessful and when it became clear that any additional efforts would be futile. Because this demand was made within a reasonable time period, Stack was required to return the $300,000 and accumulated interest. B. Attorney’s Fees and Costs The contract provided that the prevailing party in any litigation arising out of the contract was entitled to recover reasonable attorney’s fees and costs. Likewise, the Florida civil theft statute, the basis for Count III of Denson’s complaint, provided that a defendant is entitled to reasonable attorney’s fees and costs if the claim against him is without substantial factual or legal support." }, { "docid": "16723823", "title": "", "text": "to be the ‘guiding spirit behind the wrongful conduct or the central figure in the challenged corporate activity.’ ” Ennis v. Loiseau, 164 S.W.3d 698, 707-08 (Tex.App.—Austin [3rd Dist.] 2005) (quoting Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 174 (5th Cir.1985)). In this case, Morrison, as a corporate agent, may be held “individually liable for fraudulent or tortious acts committed while in the service of [his] corporation.” Shapolsky v. Brewton, 56 S.W.3d 120, 133 (Tex.App.—Houston [14th Dist.] 2001, pet. denied), disapproved on other grounds, Michiana Easy Livin’ Country, Inc. v. Holten, 168 S.W.3d 777, 789 (Tex.2005). Morrison relies heavily on but quotes selectively from Holloway v. Skinner, 898 S.W.2d 793 (Tex.1995), in support of his argument. Morrison also argues that the bankruptcy court erred by relying on Weitzel v. Barnes, 691 S.W.2d 598 (Tex.1985), instead of the more recently decided Holloway. In Holloway, the corporation failed to make payments due under a promissory note, and the creditor sued a corporate officer who owned 40 percent of the company for tortious interference with a contract. The court found that the corporation’s severe cash flow problems and insolvency, not the actions of the corporate officer, caused the failure to keep up with payments. The corporate officer also reduced his salary and testified that “he was required to prioritize between competing claims because the corporation had insufficient cash flow to meet all obligations when they came due.” Holloway, 898 S.W.2d at 798. In contrast, no matter what financial problems Morrison Excavation had, they did not excuse Morrison’s decision to send the fraudulent financial statement to Western Builders. Morrison also doubled his own salary after he learned of the error in the statement. Weitzel confirms, in the context of the Texas Deceptive Teade PRACTICES Act, that “there can be individual liability on the part of a corporate agent for misrepresentations made by him.” Weitzel, 691 S.W.2d at 601. Similarly, the court in Miller v. Keyser, 90 S.W.3d 712 (Tex.2002), decided that “an agent for a disclosed principal may be held liable for passing along false representations made in the course and scope of" }, { "docid": "11502448", "title": "", "text": "like Hem-bree, the defendant is both a corporate agent and the third party who allegedly induced the corporation’s breach, the second element is of particular importance. See Powell Indus., Inc., 985 S.W.2d at 456 (citing Holloway, 898 S.W.2d at 796). That is because, by definition, a party to a contract cannot tortiously interfere with his own contract. See Probst, 1999 WL 184127, at *9; Holloway, 898 S.W.2d at 796; Hussong v. Schwan’s Sales Enters., Inc., 896 S.W.2d 320, 326 (Tex.App.—Houston [1st Dist.] 1995, no writ). When the act of interference is allegedly committed by an individual who is also the lawful representative of the contracting party, the plaintiff must establish that the alleged act of interference was performed in furtherance of the defendant’s personal interest, so as to preserve the rule that a party cannot tortiously interfere with his own contract. See Powell Indus., Inc., 985 S.W.2d at 456-57; ACS Investors, Inc., 943 S.W.2d at 432; Holloway, 898 S.W.2d at 796. In other words, “[t]he plaintiff must prove that the agent acted willfully and intentionally to serve the agent’s personal interests at the corporation’s expense.” Powell Indus., Inc., 985 S.W.2d at 457 (citing Holloway, 898 S.W.2d at 798); see Probst, 1999 WL 184127, at *9. “A corporate officer’s mixed motives — to benefit both'himself and the corporation — are insufficient to establish liability.” Powell Indus., Inc., 985 S.W.2d at 457 (citing ACS Investors, Inc., 943 S.W.2d at 432). When determining whether an agent acted against the corporation’s interests, the court considers the corporation’s evaluation of the agent’s actions. See id. (citing Morgan Stanley & Co. v. Texas Oil Co., 958 S.W.2d 178, 181-82 (Tex.1997)). “A corporation is a better judge of its own best interests than a jury or court.” Id. (citing Morgan Stanley & Co., 958 S.W.2d at 181). While a principal’s complaint about its agent’s actions is not conclusive of whether the agent acted against the principal’s best interests, “if a corporation does not complain about its agent’s actions, then the agent cannot be held to have acted contrary to the corporation’s interests.” Id. (citing Morgan Stanley &" }, { "docid": "11502449", "title": "", "text": "to serve the agent’s personal interests at the corporation’s expense.” Powell Indus., Inc., 985 S.W.2d at 457 (citing Holloway, 898 S.W.2d at 798); see Probst, 1999 WL 184127, at *9. “A corporate officer’s mixed motives — to benefit both'himself and the corporation — are insufficient to establish liability.” Powell Indus., Inc., 985 S.W.2d at 457 (citing ACS Investors, Inc., 943 S.W.2d at 432). When determining whether an agent acted against the corporation’s interests, the court considers the corporation’s evaluation of the agent’s actions. See id. (citing Morgan Stanley & Co. v. Texas Oil Co., 958 S.W.2d 178, 181-82 (Tex.1997)). “A corporation is a better judge of its own best interests than a jury or court.” Id. (citing Morgan Stanley & Co., 958 S.W.2d at 181). While a principal’s complaint about its agent’s actions is not conclusive of whether the agent acted against the principal’s best interests, “if a corporation does not complain about its agent’s actions, then the agent cannot be held to have acted contrary to the corporation’s interests.” Id. (citing Morgan Stanley & Co., 958 S.W.2d at 182). Contrary to Kroger’s contention, however, an at-will employment relationship is subject to tortious interference. “Texas law firmly supports the contractual nature of an at-will employment relationship .... ” Fadeyi v. Planned Parenthood Assoc., 160 F.3d 1048, 1050 (5th Cir.1998). The Texas Supreme Court has recognized that an at-will employment relationship is a contract, notwithstanding that either party may terminate it at will. See id. Thus, until an employee is terminated, “third persons are not free to tortiously interfere with contracts which are terminable-at-will.” Knox v. Taylor, 992 S.W.2d 40, 57 (Tex.App.-Houston [14th Dist.] 1999, no pet.)(citing Sterner, 767 S.W.2d at 689). Therefore, “it is no defense to an action for tortious interference that a contract is terminable at will.” Knox, 992 S.W.2d at 58 (citing Juliette Fowler Homes, Inc., 793 S.W.2d at 666); Sterner, 767 S.W.2d at 689; Massey, 902 S.W.2d at 85. Here, Martin has failed to present evidence that Hémbree willfully or intentionally interfered with her relationship with Kroger.' There is no indication that Hembree’s actions or inaction" }, { "docid": "210519", "title": "", "text": "claims using our interpretation of “ordinary course” before we will address the matter. 2. Tortious Interference Although Aubin may incur no direct liability for breaching the Facility Agreement, as a non-party he could be liable for tortiously interfering with that Agreement. Under Texas common law, the elements of a cause of action for tortious interference with contractual relations are: (1) a contract; (2) an intentional act, calculated to cause damage to the plaintiff, that interferes with the contract; (3) such intentional act proximately causes the plaintiff actual damages; and (4) the lack of any justifiable cause or excuse on the part of the defendant. Gibraltar Sav. v. LDBrinkman Corp., 860 F.2d 1275, 1298 (5th Cir.1988) (footnote omitted), cert. denied, 490 U.S. 1091, 109 S.Ct. 2432, 104 L.Ed.2d 988 (1989); Deauville Corp. v. Federated Dept. Stores, Inc., 756 F.2d 1183, 1194 (5th Cir.1985). The district court dismissed Hutton’s tortious interference claim on several grounds, all of which we find improper. First, during summary judgment hearings the court held that, as Haralson’s agent, Aubin was privileged to interfere with the Facility Agreement. But an agent is privileged to induce a principal to breach a contract only when the agent acts qua agent. If an agent is “motivated by personal animus or greed, then under Texas law, the agent can indeed be held liable for inducing his principal to breach a contract.” B. Inc. v. Miller Brewing Co., 663 F.2d 545, 553 (5th Cir.1981). Fact issues are raised on Aubin’s inducement of a breach and the role in which he acted. Next, the district court found that Aubin’s interest in the S&Ls’ sale proceeds gave him the privilege to interfere with the Facility Agreement. Aubin cites us to Sterner v. Marathon Oil Co., 767 S.W.2d 686, 691 (Tex.1989) (“one is privileged to interfere with another’s contract ... if he has an equal or superior right in the subject matter to that of the other party”). Aubin points to his 50% interest in the S&Ls’ sale proceeds as evidence of his equal interest in the Facility Agreement’s subject matter. But in the March 11," }, { "docid": "2323987", "title": "", "text": "motivation behind assertion of that right is irrelevant.”); see also Belden Corp. v. InterNorth, Inc., 90 Ill.App.3d 547, 45 Ill.Dec. 765, 768 n. 1, 413 N.E.2d 98, 101 n. 1 (1980); Kwan-Sa You v. Roe, 97 N.C.App. 1, 387 S.E.2d 188, 192 (1990). Since the successor liability claim was dismissed improvidently, see supra Section II.B.2(d), the tortious interference claim against Considine should have been submitted to the jury as well. Since a party normally cannot “interfere” with his own contract, see Baker v. Welch, 735 S.W.2d 548, 549 (Tex.App.-Houston (1 Dist.)1987), Considine’s status as Anson’s CEO and controlling shareholder is pertinent. As its contracting agent, Considine is Anson, and thus had a qualified privilege to terminate the Peters contract. Nonetheless, specialized rules apply to tortious interference claims against corporate agents. Agency liability is precluded only if the agent either acted in the “best interests” of its principal (viz., Anson), see Texas Oil Co. v. Tenneco, Inc., 917 S.W.2d 826, 831-32 (Tx.App.-Houston (1 Dist.)1994), or, at the very least, did not act solely to advance his own personal interests, see Stafford v. Puro, 63 F.3d 1436, 1442 (7th Cir. 1995) (“Directors and officers are not justified in acting solely for their own benefit or solely in order to injure the plaintiff because such conduct is contrary to the best interests of the corporation.”); Powell v. Feroleto Steel Co., 659 F.Supp. 303, 307 (D.Conn.1986); Phillips v. Montana Educ. Ass’n, 187 Mont. 419, 610 P.2d 154,158 (1980); see also Holloway v. Skinner, 898 S.W.2d 793, 796 (Tex. 1995) (noting that the personal benefit exception is the logically necessary corollary to the “rule that a party cannot tortiously interfere with its own contract”). Since Anson was insolvent, see infra Section II.B.2(f), Considine’s own investment in Anson was negligible at best, and the trial record discloses that he not only acted intentionally to evade Anson’s obligation to Peters, but at the same time negotiated for himself a $200,000 consulting fee. Thus, the circumstantial evidence and the Considine memoranda to Fleet generated a trialworthy issue as to whether Considine acted with “legal malice.” See Mesolella, 508" }, { "docid": "4374262", "title": "", "text": "1997); Holloway v. Atl. Richfield Co., 970 S.W.2d 641, 644 (Tex.App.-Tyler 1998, no writ) (all distinguishing Copperweld as limited to the Sherman Act). . The court in the Northern District relied upon the Supreme Court of Texas opinion, Holloway v. Skinner, 898 S.W.2d 793 (Tex.1995). That case cited Copperweld favorably and without necessarily limiting its application to the antitrust context. Holloway was a case dealing with tortious interference in which the court held that the plaintiff must show that the defendant acted in a fashion \"... so contrary to the corporation’s best interest that his actions could only have been motivated by personal interest.” Id. at 796. This is analogous to the allegations in this case. See also, Maxey v. Citizens National Bank, 507 S.W.2d 722 (Tex.1974). . This Court, in doing so, recognizes that this ruling is not critical to the resolution of the issue,' but makes this ruling because both parties raised Texas as a possible alternative. .Under the most significant relationship test, this Court determined that Arizona is the state with the most significant relationship to the conspiracy issue. The Court also recognizes that the State with the next most significant relationship to this issue is Delaware. In making an \"Erie guess” - concerning the course the Arizona Supreme Court would take, as is evident, the Court analyzed the law in a number of jurisdictions and discovered that the prevailing rule on this matter is in line with Delaware’s treatment of this question. Thus, even if the Court were to apply Delaware, or even Texas or New Jersey, law, rather than Arizona law, Plaintiffs’ conspiracy allegations would still withstand Defendant’s Motion to Dismiss. . See e.g., Faulkner v. Arkansas Childrens Hospital, 347 Ark. 941, 69 S.W.3d 393, 407 (2002) (stating, \"in order to sustain a claim for a civil conspiracy where agents of a corporation are involved, it is necessary to show that one or more of the agents acted outside of the scope of their employment, to render them a separate 'person' for purposes of the conspiracy.”); Harp v. King, 266 Conn. 747, 835 A.2d 953," } ]

[ { "docid": "17397424", "title": "", "text": "first count under the Warsaw Convention is allegedly based on diversity, the law to be applied in this case is not state law but a federal treaty. It is applied in the state courts not because it expresses a state policy which a federal court must follow, but because it expresses federal policy which a state court must follow. And in interpreting a federal treaty, the federal courts are certainly not bound by state court interpretations. In any event, we agree with our prior decision in Komlos v. Compagnie Nationale Air France, 2 Cir., 1953, 209 F.2d 436, 438, which impliedly agreed with Judge Leibell’s decision. Komlos v. Compagnie Nationale Air France, D.C.S.D.N.Y.1952, 111 F.Supp. 393, that the Convention did not create, an independent right of action. As Judge Leibell pointed out, Secretary of State Hull’s letter to President Roosevelt, dated March 31, 1934, indicated that the effect of Article 17 on which plaintiffs rely for tbeir argument was only to create a presumption of liability, leaving it for local law to grant the right of action. As one authority has stated, the purpose of the Convention was only “to effect a uniformity of procedure and remedies.” Orr, The Warsaw Convention, 31 Va.L. Rev. 423 (1945) ; see also Comment, Air Passenger Deaths, 41 Corn.L.Q. 243, 255-60 (1956); Fixel, The Law of Aviation, § 23 (1948). Plaintiffs, relying on a dictum in Judge Leibell’s opinion in Komlos, 111 F.Supp. at page 393, argue that where the law of the place of the injury provides no right of action or where there is no law of the place of injury the Warsaw Convention provides one. They then argue that the Federal Death on the High Seas Act does not grant them a right of action, for that does not apply to deaths in the airspace. We see no justification for such a reading of the Convention. The language of Article 17 does not indicate any difference between situations where the law of the place of injury does grant a right of action and where it does not. See Comment, 41 Corn.L.Q." } ]

[ { "docid": "7377333", "title": "", "text": "by Captain Bryant without objection and without any motion then or later made to strike it. After a careful trial and a detailed and patient consideration of all of the evidence, the Trial Court applied proper legal standards and made fact conclusions which certainly pass muster under F.R.Civ.P. 52(a), 28 U.S.C.A. There it ends. Affirmed. . The Federal»Tort Claims Aet, 28 U.S. C.A. § 1346(b) (1959 Supp.) provides: “Subject to the provisions of chapter 171 of this title, the district courts * * * shall have exclusive jurisdiction of civil actions on claims against the United States * * '* for * * * personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government * * * under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C.A. § 2674 provides that the assumed liability is only “in the same manner and to the same extent as a private individual under like circumstances.” . Hess v. United States, 1960, 361 U.S. 314, 316, 80 S.Ct. 341, 4 L.Ed.2d 305; Noel v. Linea Aeropostal Venezolana, 2 Cir., 1957, 247 F.2d 677, 66 A.L.R.2d 997, certiorari denied 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262; Higa v. Transocean Airlines, 9 Cir., 1955, 230 F.2d 780. . Its number was CG 83463. . Indian Towing Company v. United States, 1955, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48; Rayonier, Inc. v. United States, 1957, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354. . The Government offered and the District Court admitted, although with evident doubt as to its probative value, un-contradicted evidence that the search for this little shrimper cost the Coast Guard nearly $70,000 and the Naval Air Force $30,000. . The Committee comprised the Secretaries of the Treasury, Defense, and Commerce Departments and the Chairman of the Federal Communications Commission .and Civil Aeronautics Board, each of whom personally .signed the Plan. . The Civil Air Policy, May 1954," }, { "docid": "23034252", "title": "", "text": "in punitive damages claims — would allow such a claim. A. Current Second Circuit Law We have left open the question of whether state causes of action are still available under the Convention. As the law in this Circuit now stands, we have ruled that the Warsaw Convention creates a cause of action enabling a plaintiff to sue directly under its terms. See Benjamins v. British European Airways, 572 F.2d 913, 919 (2d Cir.1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1016, 59 L.Ed.2d 72 (1979). This holding reversed prior cases that had held the Convention created only a presumption of liability, not a cause of action. See Komlos v. Compagnie Nationale Aire France, 209 F.2d 436 (2d Cir.1953), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954); Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957). Benjamins left open the question of whether state causes of action were still available under the Convention, and only two of our cases have touched on this subject. See In re Air Crash Disaster at Warsaw, Poland, on March l4, 1980, 705 F.2d 85 (2d Cir.) (affirming on other grounds district court decision that regarded the cause of action under the Convention as exclusive, without discussing exclusivity issue), cert. denied, 464 U.S. 845, 104 S.Ct. 147, 78 L.Ed.2d 138 (1983); cf. Tokio Marine & Fire Ins. Co. v. McDonnell Douglas Corp., 617 F.2d 936, 941-42 (2d Cir.1980) (postulating in dicta that action under the Convention might not be exclusive). The Supreme Court has declined to address the question of exclusivity. See Air France v. Saks, 470 U.S. 392, 408, 105 S.Ct. 1338, 1346, 84 L.Ed.2d 289 (1985). We consider the issue an open question. B. Preservation and Preemption The issue is not whether the Convention preempts state laws with which it is in direct conflict, as it obviously must under the Supremacy Clause of the United States Constitution. See U.S. Const, art. YI. Nor is it whether a plaintiff may bring a state cause of action when" }, { "docid": "22942682", "title": "", "text": "pleaded by Benjamins “arise under” the Warsaw Convention. It is true that in the past we have said that the Warsaw Convention does not create a cause of action. We believe, however, that a re-examination of the question requires a different answer. A At the time the United States adhered to the Convention, it seemed obvious to all that the Convention created causes of action for wrongful death or personal injury (Article 17), and for damage to baggage (Article 18). One court went so far as to say, “If the Convention did not create a cause of action in Art. 17, it is difficult to understand just what Art. 17 did do.” Salamon v. Koninklijke Luchtvaart Maatschappij, N.V., 107 N.Y.S.2d 768, 773 (Sup. Ct.1951), aff’d mem., 281 App.Div. 965, 120 N.Y.S.2d 917 (1st Dept. 1953). The view that the Convention does not create a cause of action is, in large part, attributable to two cases we decided in the 1950s, Komlos v. Compagnie Nationale Air France, 209 F.2d 436 (2d Cir. 1953), rev’g on other grounds, 111 F.Supp. 393 (S.D.N.Y. 1952), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954), and Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957): The Second Circuit had spoken twice, the Supreme Court had denied certiorari, and in all subsequent American Warsaw cases it was either assumed or decided that the claim must be founded on some law other than the Convention itself. Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv.L.Rev. 497, 519 (1967). The analysis on which this structure of holding rests is to be found in Judge Lei-bell’s opinion for the district court in Kom-los. In determining whether a cause of action had been assigned to an insurer or remained the property of an estate, Judge Leibell held that the action envisioned by Article 17 was one created by domestic law, except in cases where the forum provided no analogous action. Ill F.Supp. at 401-02. Judge Leibell relied heavily on a letter" }, { "docid": "23034251", "title": "", "text": "and Michigan when the United States first adhered to the Warsaw Convention in 1934. In some states, “exemplary damages may properly partake of both a punitive and a compensatory character.” Id. § 733; C. McCormick, Damages, § 78, at 279 (1935). We noted, for example, in Racich v. Celotex Corp., 887 F.2d 393, 397 (2d Cir.1989), that New York has viewed punitive damages “as having a purpose beyond punishment, ‘affording] the injured party a personal monetary recovery over and above compensatory loss.’ ” Id., citing Wittman v. Gilson, 70 N.Y.2d 970, 972, 525 N.Y.S.2d 795, 520 N.E.2d 514 (1988). Ill PREEMPTION OF STATE LAW CAUSES OF ACTION It follows from the preceding discussion that were we to hold that plaintiffs could bring state law causes of action, then such a cause of action for punitive damages would sometimes include a compensatory element. On the other hand, if the federal cause of action is exclusive, then we would look to federal law to decide whether that body of law — which generally recognizes no compensatory element in punitive damages claims — would allow such a claim. A. Current Second Circuit Law We have left open the question of whether state causes of action are still available under the Convention. As the law in this Circuit now stands, we have ruled that the Warsaw Convention creates a cause of action enabling a plaintiff to sue directly under its terms. See Benjamins v. British European Airways, 572 F.2d 913, 919 (2d Cir.1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1016, 59 L.Ed.2d 72 (1979). This holding reversed prior cases that had held the Convention created only a presumption of liability, not a cause of action. See Komlos v. Compagnie Nationale Aire France, 209 F.2d 436 (2d Cir.1953), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954); Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957). Benjamins left open the question of whether state causes of action were still available under the Convention, and only two of our" }, { "docid": "8008381", "title": "", "text": "a common law nuisance. But this circuit has held the government absolutely liable where state law imposes strict liability on private persons. United States v. Praylou, 208 F.2d 291 (4th Cir. 1953), cert. denied, 347 U.S. 934, 74 S.Ct. 628, 98 L.Ed. 1085 (1954). In that case, Judge Parker distinguished between possession of a dangerous property, the point argued in Dalehite, and the operation of a dangerous instrument. 208 F.2d at 295. Praylou has been cited by the Supreme Court in Rayonier, Inc. v. United States, 352 U.S. 315, 319 n. 2, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957), a case which admonishes that it is not a judicial function to read exemptions into the Tort Claims Act beyond those provided by Congress. Praylou is on point, and we see no reason to reconsider it. See also, United States v. Pendergast, 241 F.2d 687, 688 (4th Cir. 1957). The Air Force’s liability to Nelms depends, then, on whether under the laws of North Carolina a private person would be required to compensate him. The North Carolina Supreme Court has imposed the standard of strict liability with respect to concussion damage caused by blasting, Guilford Realty & Ins. Co. v. Blythe Bros. Co., 260 N.C. 69, 131 S.E. 2d 900 (1963). In adopting the majority view of blasting eases, the Court relied on the rule appearing in the Restatement of Torts §§ 519-20 that whoever engages in ultrahazardous activities is absolutely liable for resulting harm. Nevertheless, sonic booms cannot be classified as ultrahazardous solely on the authority of the blasting cases, for even though sonic booms apparently produce effects much the same as concussions accompanying an explosive blast, they cannot be deemed ultrahazardous simply because the forces causing damage are comparable. Rather, if one who engages in supersonic flight is to be held strictly accountable, his action must on its own merit satisfy the criteria set out in § 520 of the Restatement: “An activity is ultrahazardous if it (a) necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the" }, { "docid": "5635862", "title": "", "text": "14, 1966, and, instead, approved, through the Civil Aeronautics Board, an interim agreement submitted by the International Air Transportation Association (IATA). Dep’t of State Press Release Nos. 110, 111; 54 Dep’t State Bull. 955 (1966). This interim arrangement, known as Agreement CAB 18900, provided that the parties thereto would agree to include in their tariffs to be filed with the CAB a “special contract” by which the carrier would waive its defenses provided by Article 20(1) of the Warsaw Convention and also its limitation of liability under the Convention up to $75,000. Husserl v. Swiss Air Transport Co., 351 F.Supp. at 703 n.1. Together, the Agreement, signed by each airline, the tariff, filed pursuant to the Agreement on May 16, 1966, the Notice to Passengers included within the ticket informing the passenger of the change in the regime of the Warsaw Convention, and the CAB order, constitute what has popularly been known as the “Montreal Agreement”. Id. With respect to the Warsaw Convention itself, the majority of courts have in the past adhered to the proposition that no cause of action is created by the Convention. Instead, the Convention was regarded as creating a presumption of liability if the otherwise applicable substantive law provided a claim for relief based on the injury alleged. Maugnie v. Compagnie Nationale Air France, 549 F.2d at 1258 n.2; Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir. 1957), cert. denied 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); Komlos v. Compagnie Nationale Air France, 111 F.Supp. 393 (S.D.N.Y.1952), rev’d on other grounds, 209 F.2d 436 (2d Cir. 1953), cert. denied 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954); Husserl v. Swiss Air Transport Co., 351 F.Supp. 702. It might be noted that this proposition is consistent with this court’s conclusion that the Convention does not extinguish any cause of action either. In other words, the Convention is neutral ■ with respect to the existence of a cause of action and merely conditions and limits any action which exist under otherwise applicable law. Husserl v. Swiss Air Transport Co., 388" }, { "docid": "23612243", "title": "", "text": "liable to the plaintiffs in this case for their alleged emotional injuries. A. The Cause of Action Under Warsaw At the outset, we accept those cases holding that the Warsaw Convention itself creates a cause of action. In the years immediately following the United States’ adherence to the Convention, most courts and commentators assumed that Article 17 created a cause of action. See Salamon v. Koninklijke Luchtvaart Maatschappij, N.V., 107 N.Y.S.2d 768, 773 (Sup.Ct.1951), aff'd mem. 281 App.Div. 965, 120 N.Y.S.2d 917 (1st Dept.1953) (“[i]f the Convention did not create a cause of action in Art. 17, it is difficult to understand just what Art. 17 did do”); James M. Grippando, Warsaw Convention — Federal Jurisdiction and Air Carrier Liability for Mental Injury: A Matter of Limits, 19 Geo.Wash.J.Int’1 L. & Econ. 59, 64-65 (1985); Lowenfeld and Mendelsohn, 80 Harv.L.Rev. at 517. Two seminal Second Circuit decisions in the 1950’s, however, held that the Warsaw Convention did not create a cause of action. Komlos v. Compagnie Nationale Air France, 209 F.2d 436 (2d Cir.1953), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954); Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957). Courts followed these decisions for two decades, and most commentators assumed the question to be closed, although not without criticizing the decisions. See Lowenfeld and Mendelsohn, 80 Harv.L.Rev. at 516-19; G. Nathan Calkins, Jr., The Cause of Action Under the Warsaw Convention, 26 J.Air L. & Com. 217, 323 (1959). Upon reexamination of these decisions, a careful analysis of the minutes of the Convention, and an analysis of the goals of the Warsaw regime, however, the Second Circuit reversed itself in Benjamins v. British European Airways, 572 F.2d 913 (2d Cir.1978), cert. denied, 439 U.S. 1114, 99 S.Ct. 1016, 59 L.Ed.2d 72 (1979). Judge Lum-bard, author of the Noel decision, wrote the opinion for the court holding that the Warsaw Convention itself did create a cause of action for wrongful death under Article 17 and for lost baggage under Article 18. Other" }, { "docid": "13341249", "title": "", "text": "99 S.Ct. 1016, 59 L.Ed.2d 72 (U.S. 1979), the Warsaw Convention provides a universal source of a cause of action. Id. at 919. Thus, it would appear that, this being a policy of international law, any application of foreign law could not obstruct access to this source. Cf. Pearson v. Northeast Airlines, Inc., 309 F.2d 553 (2d Cir. 1962) (en banc), cert. denied, 372 U.S. 912, 83 S.Ct. 726, 9 L.Ed.2d 720 (1963); Rosman v. Trans World Airlines, Inc., supra, at 398, 358 N.Y.S.2d at 108, 314 N.E.2d at 856. Rather, following along the channels of diplomacy, foreign laws could be employed to provide the details for the enforcement of this policy, such as providing guidelines to which relatives are to be the beneficiaries. Cf. Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961). Thus, it appears that if foreign law is to be applied at all, it would be relevant only to issues which may arise in the event of a damage trial or settlement. Even if this Court steps aside from the new era marked by Benjamins on the basis that Benjamins’ new expression may be limited to those cases where jurisdiction is unavailable under 28 U.S.C. § 1332 (1976), Benjamins, supra at 919, and that such jurisdiction exists here, the application of foreign law nonetheless appears relevant only to the issue of damages. Prior to Benjamins, it was consistently held that Husserl v. Swiss Air Transport Co., Ltd., 388 F.Supp. 1238, 1243 (S.D.N.Y.1975). Accord, Noel v. Linea Areopostal Venezuela, 247 F.2d 677 (2d Cir.) cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); Karfunkel v. Compagnie Nationale Air France, 427 F.Supp. 971, 977 (S.D.N.Y. 1977); Zousmer v. Canadian Pacific Airlines, Ltd., 307 F.Supp. 892, 899 (S.D.N.Y. 1969); Komlos v. Compagnie Nationale Air France, 111 F.Supp. 393, 401 (S.D.N.Y. 1952), rev’d on other grounds, 209 F.2d 436 (2d Cir. 1953), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954). In determining which wrongful death statute provides a claim for relief in diversity actions, a federal court" }, { "docid": "7377334", "title": "", "text": "extent as a private individual under like circumstances.” . Hess v. United States, 1960, 361 U.S. 314, 316, 80 S.Ct. 341, 4 L.Ed.2d 305; Noel v. Linea Aeropostal Venezolana, 2 Cir., 1957, 247 F.2d 677, 66 A.L.R.2d 997, certiorari denied 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262; Higa v. Transocean Airlines, 9 Cir., 1955, 230 F.2d 780. . Its number was CG 83463. . Indian Towing Company v. United States, 1955, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48; Rayonier, Inc. v. United States, 1957, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354. . The Government offered and the District Court admitted, although with evident doubt as to its probative value, un-contradicted evidence that the search for this little shrimper cost the Coast Guard nearly $70,000 and the Naval Air Force $30,000. . The Committee comprised the Secretaries of the Treasury, Defense, and Commerce Departments and the Chairman of the Federal Communications Commission .and Civil Aeronautics Board, each of whom personally .signed the Plan. . The Civil Air Policy, May 1954, page 44: “To provide an over-all Search and Rescue Plan for effective utilization of all available facilities to include provisions for the control and coordination of all types of Search and Rescue.” . The Plan states: “3. Objective. To establish a National Search and Rescue Plan which will integrate into a cooperative network available U. S. SAR facilities which will be coordinated in any one area by a single federal agency in order to afford greater protection of life and property of citizens of the United States and insure greater efficiency and economy. * * . 14 U.S.C.A. § 88 provides: “(a) In order to render aid to distressed persons, vessels, and aircraft on the high seas and on waters over which the United States has jurisdiction and in order to render aid to persons and property imperiled by flood, the Coast Guard may: (1) perform any and all acts necessary to rescue and aid persons and protect and save property; * * *. “(b) The Coast Guard may render aid to persons and protect" }, { "docid": "8008380", "title": "", "text": "that case'inapplicable. The inability to prevent a deliberately released destructive force from causing harm, it seems to us, provides an appropriate limit to the discretionary function exception. II Our holding that the exception is inapplicable does not, of course, render the Air Force liable. In order for Nelms to prevail, he must show that the damage to his property was caused by the negligent or wrongful act or omission of a government employee “under circumtances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). Since Nelms has been unable to show negligence either in the planning or operation of the flight, he necessarily relies on the doc trine of strict liability for ultrahazardous activities. The Air Force again relies on Dalehite v. United States, 346 U.S. 15, 45, 73 S.Ct. 956 (1953), where the Court ruled that the government could not be held liable without fault even if the explosive fertilizer were a common law nuisance. But this circuit has held the government absolutely liable where state law imposes strict liability on private persons. United States v. Praylou, 208 F.2d 291 (4th Cir. 1953), cert. denied, 347 U.S. 934, 74 S.Ct. 628, 98 L.Ed. 1085 (1954). In that case, Judge Parker distinguished between possession of a dangerous property, the point argued in Dalehite, and the operation of a dangerous instrument. 208 F.2d at 295. Praylou has been cited by the Supreme Court in Rayonier, Inc. v. United States, 352 U.S. 315, 319 n. 2, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957), a case which admonishes that it is not a judicial function to read exemptions into the Tort Claims Act beyond those provided by Congress. Praylou is on point, and we see no reason to reconsider it. See also, United States v. Pendergast, 241 F.2d 687, 688 (4th Cir. 1957). The Air Force’s liability to Nelms depends, then, on whether under the laws of North Carolina a private person would be required to compensate him. The North" }, { "docid": "22942697", "title": "", "text": "dissenting: The United States Senate is presently debating the wisdom of a proposed Panama Canal treaty, by which Panama will be giv en control of the Canal but certain rights will be reserved to the United States. One of the main concerns of those opposing ratification of the treaty is whether they can rely upon the interpretation of its provisions given them by the executive branch of our government. Opinions such as the one this Court now hands down demonstrate that their concern may not be ill-founded. In 1934, when Secretary of State Cordell Hull sent the Warsaw Convention to President Roosevelt for transmission to the Senate, he wrote that the effect of Article 17 was to “create a presumption of liability.” We may assume, I believe, that the Senate relied upon the Secretary of State’s assurances. Without question, the courts have done so. See Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); Komlos v. Compagnie Nationale Air France, 111 F.Supp. 393 (S.D.N.Y.1952), rev’d on other grounds, 209 F.2d 436 (2d Cir. 1953), cert. denied, 348 U.S. 820, 75 S.Ct. 81, 99 L.Ed. 646 (1954); Ross v. Pan American Airways, Inc., 299 N.Y. 88, 97-98 (1949). In Noel we said: Secretary of State Hull’s letter to President Roosevelt, dated March 31, 1934, indicated that the effect of Article 17 on which plaintiffs rely for their argument was only to create a presumption of liability, leaving it for local law to grant the right of action. As one authority has stated, the purpose of the Convention was only “to effect a uniformity of procedure and remedies.” Orr, The Warsaw Convention, 31 Va.L.Rev. 423 (1945); see also Comment, Air Passenger Deaths, 41 Corn.L.Q. 243, 255-60 (1956); Fixel, The Law of Aviation, § 23 (1948). 247 F.2d at 679 (footnote omitted). Completely reversing our field, we now hold that Article 17 creates a cause of action for wrongful death. As justification for this turnabout, the majority relies in part upon the “paucity of analysis that accompanied the creation of" }, { "docid": "13341250", "title": "", "text": "Court steps aside from the new era marked by Benjamins on the basis that Benjamins’ new expression may be limited to those cases where jurisdiction is unavailable under 28 U.S.C. § 1332 (1976), Benjamins, supra at 919, and that such jurisdiction exists here, the application of foreign law nonetheless appears relevant only to the issue of damages. Prior to Benjamins, it was consistently held that Husserl v. Swiss Air Transport Co., Ltd., 388 F.Supp. 1238, 1243 (S.D.N.Y.1975). Accord, Noel v. Linea Areopostal Venezuela, 247 F.2d 677 (2d Cir.) cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); Karfunkel v. Compagnie Nationale Air France, 427 F.Supp. 971, 977 (S.D.N.Y. 1977); Zousmer v. Canadian Pacific Airlines, Ltd., 307 F.Supp. 892, 899 (S.D.N.Y. 1969); Komlos v. Compagnie Nationale Air France, 111 F.Supp. 393, 401 (S.D.N.Y. 1952), rev’d on other grounds, 209 F.2d 436 (2d Cir. 1953), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954). In determining which wrongful death statute provides a claim for relief in diversity actions, a federal court must apply the conflict of laws rule prevailing in the state in which the court sits. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). the Warsaw system does not create any claim for relief but . . . merely (1) creates a presumption of liability if the otherwise applicable substantive law provides a claim for relief based on the injury alleged .... Earlier courts automatically applied New York’s black letter lex loci rule and thus turned to the wrongful death statute of the place of the injury. See, e. g., Komlos v. Compagnie Nationale Air France, supra, 111 F.Supp. at 400; Supine v. Compagnie Nationale Air France, 100 F.Supp. 214, 216 (E.D.N.Y.1951); Wyman v. Pan American Airways, Inc., 181 Misc. 963, 965-66, 43 N.Y.S.2d 420, 423 (Sup.Ct.1943), aff’d mem., 267 App.Div. 947, 48 N.Y.S.2d 459, aff’d mem., 293 N.Y. 878, 59 N.E.2d 785 (1944), cert. denied, 324 U.S. 882, 65 S.Ct. 1029, 89 L.Ed. 1432 (1945). Cf. Pearson, supra at 557; Kilberg, supra. However, New York" }, { "docid": "22942694", "title": "", "text": "of dismissal. We leave it to his discretion to determine, in a manner consistent with our opinion, which of Benja-mins’ causes of action he may decide and which, if any, he may not; in particular, we leave to him the question whether to take-pendent jurisdiction over the claims against HSA. Reversed and remanded for further proceedings consistent with our opinion. . Convention for the Unification of Certain Rules Relating to International Transportation by Air, 49 Stat. 3000, T.S. No. 876 (concluded Oct. 12, 1929; adhered to by United States June 27, 1934) [hereinafter referred to as “Convention”; “Article(s) ......” means Article(s) ......of the Convention]. . Judge Weinstein cited Husserl v. Swiss Air Transport Co., 485 F.2d 1240 (2d Cir. 1973), aff’g 351 F.Supp. 702 (S.D.N.Y.1972); Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); and Komlos v. Compagnie Nationale Air France, 111 F.Supp. 393 (S.D.N. Y.1952), rev’d on other grounds, 209 F.2d 436 (2d Cir. 1953), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954). He indicated, however, that he thought the matter not free from doubt, and commended the question to our careful attention. . Jurisdiction over HSA is alleged under principles of pendent jurisdiction. . Personal jurisdiction is not an issue in this case, as each defendant has submitted to the in personam jurisdiction of the court. . Smith v. Canadian Pacific Airways, Ltd., supra, indicates that venue is no concern of Article 28(1), 452 F.2d at 800-01. It answers only the question “whether suit may be brought at all in the courts of the United States,” whether state or federal and regardless of location. Id. at 800 n. 3. . 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. . But see Wyman v. Pan American Airways, 181 Misc. 963, 43 N.Y.S.2d 420 (Sup.Ct.1943), aff’d, 267 App.Div. 947, 48 N.Y.S.2d 459 (1st Dept.), aff'd, 293 N.Y. 878," }, { "docid": "23149217", "title": "", "text": "by such default on his part as, in accordance with the law of the court to which the ease is submitted, is considered to be equivalent to wilful misconduct. “(2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused under the same circumstances by any agent of the carrier acting within the scope of his employment.” Article 22 limits the liability of the carrier for each passenger to about $8,300. By the Montreal Agreement, this limit was raised to $75,000, and the defenses available under Article 20(1) were waived by the carriers. As I understand it, the Convention does not “exclusively regulate” the relationship between passenger and carrier on an international flight, but rather sets limits on and renders uniform certain of the aspects of that relationship. Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); Zousmer v. Canadian Pacific Air Lines, Limited, 307 F.Supp. 892 (S.D.N.Y.1969); Komlos v. Compagnie Nationale Air France, 111 F.Supp. 393 (S.D.N.Y.1952), rev’d on other grounds, 209 F.2d 436 (2d Cir. 1953); Lowenfeld and Mendelsohn, The United States and the Warsaw Convention, supra n. 1, 80 Harv.L.Rev. at 519. Indeed, it has been held that the Convention creates no new right of action, but rather creates “ . . . a presumption of liability, leaving it for local law to grant the right of action.” Noel v. Linea Aeropostal Venezolana, supra, 247 F.2d at 679. Since it is a treaty, it is the supreme law of the land, preempting local law in the areas where it applies. U.S.Const. Art. VI; United States v. Belmont, 301 U.S. 324, 57 S.Ct. 758, 81 L.Ed. 1134 (1937); Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798 (2d Cir. 1971). Thus, it would seem to follow that if the Convention “applies”, it applies to limit — not eliminate —liability; if it does not apply, it leaves liability to be established according to traditional common law rules. To invoke the Convention, there must be an “accident” within" }, { "docid": "5635863", "title": "", "text": "proposition that no cause of action is created by the Convention. Instead, the Convention was regarded as creating a presumption of liability if the otherwise applicable substantive law provided a claim for relief based on the injury alleged. Maugnie v. Compagnie Nationale Air France, 549 F.2d at 1258 n.2; Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir. 1957), cert. denied 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); Komlos v. Compagnie Nationale Air France, 111 F.Supp. 393 (S.D.N.Y.1952), rev’d on other grounds, 209 F.2d 436 (2d Cir. 1953), cert. denied 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954); Husserl v. Swiss Air Transport Co., 351 F.Supp. 702. It might be noted that this proposition is consistent with this court’s conclusion that the Convention does not extinguish any cause of action either. In other words, the Convention is neutral ■ with respect to the existence of a cause of action and merely conditions and limits any action which exist under otherwise applicable law. Husserl v. Swiss Air Transport Co., 388 F.Supp. 1238, 1252 (S.D.N.Y.1975). Since the Montreal Agreement, in large part, merely modified certain terms of the Convention, then arguably the Agreement itself would not independently support a cause of action, as Dunn contends here. Despite this, TWA asserts that “in pleading a causé of action based upon the Montreal Agreement, one must allege that agreement and prove that the defendant was a party thereto.” Appellant’s Opening Brief at 7. According to TWA, the Agreement “is merely a contractual provision between certain airlines and the U. S. Government. And because it is a contract, under the basic law of contracts it must be pleaded. In the case at bar, the existence of the contract (the Montreal Agreement) was neither mentioned, pleaded, alleged or proved.” Id. at 6. In support of its position, TWA cites Husserl v. Swiss Air Transport Co., 351 F.Supp. 702. Reliance on that case, however, is misplaced as the fact that the parties there did not dispute that the defendant carrier had signed the Montreal Agreement did not imply that the Agreement" }, { "docid": "12197096", "title": "", "text": "carry the Civil Aeronautics Act or the Code of Federal Regulations when taking a plane.” 118 N.E.2d 558. . Article 17 of the Warsaw Convention provides as follows: “The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident causing the damage so sustained took place on board the air craft or in the course of any of the operations of embarking or disembarking.” . Article 20(1) of the Convention provides: “The carrier shall not be liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.” . In Berguido v. Eastern Air Lines, Incorporated, 317 F.2d 628 (3 Cir. 1963), Judge McLaughlin, speaking for this Court, said at page 629: “The Warsaw Convention provides, inter alia, that the carrier is absolutely liable for all injuries where the accident causing the damage so sustained takes place on board the aircraft. Article 17. In such circumstances the liability of the carrier for each passenger is limited to 125,000 francs (approximately $8,300). Article 22(1). In order to escape that liability, the carrier has the burden of proving that it has taken all necessary measures to avoid the damage or that it was impossible for it to take them. Article 20(1). On the other hand, if the plaintiff sustains his burden of proving that the damage is caused by the ‘wilful misconduct’ of the carrier, ‘[t]he carrier shall not be entitled to avail himself of the provisions of this convention which exclude [Art. 20(1)] or limit [22(1)] his liability.’ Article 25(1).” . In Komolos v. Compagnie Nationale Air France, 111 F.Supp. 393, 401 (S.D.N.Y.1952), rev’d on other grounds, 209 F.2d 436 (2 Cir. 1953), cert. den. 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954), the court stated: “The Convention creates a presumption of liability from the happening of the accident. Art. 17. It gives the carrier complete exoneration from liability if" }, { "docid": "5408745", "title": "", "text": "with their use. Madsen v. East Jordan Irr. Co., 101 Utah 552, 125 P.2d 794; annotation 20 A.L.R.2d 1372. In Ford v. United States, supra, recovery against the Government for injuries sustained in the explosion of a booby trap at a deactivated military reservation was denied, but this was upon the ground that under Oklahoma law, negligence had not been established. Despite the governmental nature of the military project, the Court stated that the United States owed a duty to persons .who were actually known to be, or reasonably expected to be, at a military reservation that had been deactivated, to -exercise ordinary care to prevent injury to them, but that such duty could be discharged by giving ade quate warning or by the exercise of due care to make the premises reasonably safe. The fact that an absolute liability under state law may be imposed against individuals for certain dangerous activities does not relieve the Government from liability under the Tort Claims Act where the negligence thereby required is established. United States v. Praylou (United States v. Walker), 4 Cir., 1953, 208 F.2d 291, certiorari denied 347 U.S. 934, 74 S.Ct. 628, 98 L.Ed. 1085. Under the Tort Claims Act permitting recovery against the United States if a private person would be liable, it is not necessary to show that a private person could be sued under identical circumstances. Cerri v. United States, supra. It is pointed out that private persons under existing law cannot legally detonate a nuclear device. Neither can they maintain armies, operate the postal service, operate, independent of Government, certain secret experimental aircraft, or operate military airbases. Yet, there are analogous private activities in the scope of which certain negligent acts would give rise to private liability. I have no doubt that as to these, there may be corresponding responsibility on the part of the Government under the Tort Claims Act, depending on the particular facts See Air Transport Associates, Inc., v. United States, 9 Cir., 1955, 221 F.2d 467. I also believe that to hold the Government responsible for certain acts or omissions occurring" }, { "docid": "22942693", "title": "", "text": "appropriate in large air crash cases was not present at. the time Komlos and Noel were decided. Section 1407 of 28 U.S.C., enacted by Pub.L.No.90-296, 90th Cong., 2d Sess., 82 Stat. 109 (April 29,1968), created the Judicial Panel on Mul-tidistrict Litigation, and authorized the creation of the procedures found in the Manual for Complex Litigation. These procedures, such as consolidation and assignment to one expert judge, can — by reducing expenses and expediting dispositions — benefit all parties to air disaster actions, in which the plaintiff/victims may come from many different parts of the country. Obviously, these procedures are unavailable among the courts of the several states. Finally, we do not anticipate any large increase in the volume of federal litigation as a result of our holding. Most cases will fall under 28 U.S.C. § 1332, as they do today; only when plaintiffs and defendants are all aliens, but the United States is a nation with treaty jurisdiction, will it be necessary to invoke 28 U.S.C. § 1331. VI Accordingly, we reverse Judge Wein-stein’s order of dismissal. We leave it to his discretion to determine, in a manner consistent with our opinion, which of Benja-mins’ causes of action he may decide and which, if any, he may not; in particular, we leave to him the question whether to take-pendent jurisdiction over the claims against HSA. Reversed and remanded for further proceedings consistent with our opinion. . Convention for the Unification of Certain Rules Relating to International Transportation by Air, 49 Stat. 3000, T.S. No. 876 (concluded Oct. 12, 1929; adhered to by United States June 27, 1934) [hereinafter referred to as “Convention”; “Article(s) ......” means Article(s) ......of the Convention]. . Judge Weinstein cited Husserl v. Swiss Air Transport Co., 485 F.2d 1240 (2d Cir. 1973), aff’g 351 F.Supp. 702 (S.D.N.Y.1972); Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); and Komlos v. Compagnie Nationale Air France, 111 F.Supp. 393 (S.D.N. Y.1952), rev’d on other grounds, 209 F.2d 436 (2d Cir. 1953), cert. denied, 348 U.S. 820, 75" }, { "docid": "13704846", "title": "", "text": "or death caused by the negligent or wrongful act of an employee of the Government while acting within the scope of his employment, under circumstances where the United States, if a private person, would be liable in accordance with the law of the place at which the act or omission occurred. And Title 28, section 2674, provides in presently pertinent part that the Government shall be liable respecting the provisions of the title relating to tort claims in the same manner and to the same extent as a private individual under like circumstances. When these two sections are considered together, it is clear that, except where otherwise specifically provided in the Act itself, the liability of the Government under the Act is to be determined by the standards and tests of the substantive law of the state in which the tort occurred. Hatah-ley v. United States, 351 U.S. 173, 76 S.Ct. 745, 100 L.Ed. 1065; Carnes v. United States, 10 Cir., 186 F.2d 648; United States v. Gaidys, 10 Cir., 194 F.2d 762; United States v. Gray, 10 Cir., 199 F.2d 239. We do not explore the question whether the deputy sheriff was a non-compensated agent of the United States. It may be assumed without so deciding that he did occupy that status. If the provisions of the Tort Claims Act to which reference has been made stood alone, the question whether the facts pleaded in the complaint were sufficient to constitute a cause of action against the Government for which damages could be awarded would have to be determined by reference to the standards and tests of the substantive law of New Mexico. It is provided by statute in that state that one guilty of assaulting another shall be punished as therein specified, and in addition shall be liable to the suit of the injured party. N.M.S.A.1953, § 40-6-1. And it is held in that state that an officer is liable in damages where, in the course of effectuating an arrest, and through the use of excessive force not necessary for his own protection and safety, he shoots the" }, { "docid": "5408746", "title": "", "text": "(United States v. Walker), 4 Cir., 1953, 208 F.2d 291, certiorari denied 347 U.S. 934, 74 S.Ct. 628, 98 L.Ed. 1085. Under the Tort Claims Act permitting recovery against the United States if a private person would be liable, it is not necessary to show that a private person could be sued under identical circumstances. Cerri v. United States, supra. It is pointed out that private persons under existing law cannot legally detonate a nuclear device. Neither can they maintain armies, operate the postal service, operate, independent of Government, certain secret experimental aircraft, or operate military airbases. Yet, there are analogous private activities in the scope of which certain negligent acts would give rise to private liability. I have no doubt that as to these, there may be corresponding responsibility on the part of the Government under the Tort Claims Act, depending on the particular facts See Air Transport Associates, Inc., v. United States, 9 Cir., 1955, 221 F.2d 467. I also believe that to hold the Government responsible for certain acts or omissions occurring in the course of nuclear tests would not necessarily visit the Government with “novel or unprecedented liabilities” contrary to the intent of Congress. Finally, the defendant argues that since “Government employees are immune to suit for damages for the manner in which they have performed governmental acts which involved the exercise of judgment or discretion”, the Government likewise would not be liable by reason of such acts. This is begging the question. Of course, if the particular act or omission were a discretionary one, no liability could be predicated thereon by reason of the exception set out in 28 U.S.C.A. § 2680(a). Such cases as Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780, relied on by defendant, holding that the head of a department is not liable for damages by reason of official communications pursuant to an Act of Congress are not too helpful. The major premise of defendant’s argument, that is, that there can be no governmental liability in the absence of individual liability, has been questioned under certain circumstances." } ]

[ { "docid": "13687103", "title": "", "text": "1367(a) a district court properly exercises supplemental jurisdiction over state law claims that are part of the same case or controversy over which the district court has original jurisdiction, § 1367(c)(3) provides that a district court “may decline to exercise supplemental jurisdiction over a claim under subsection (a) if ... the district court had dismissed all claims over which it has original jurisdiction.” District courts enjoy wide discretion in determining whether to retain supplemental jurisdiction over a state claim once all federal claims are dismissed. The Commentary to § 1367(c)(3) explains: the idea here is that once the crutch is removed- the claim that supports the supplemental jurisdiction of the other claim or claims- the other should not remain for adjudication ... [Jjudicial discretion here is a particularly important element. Here the ‘may’ in ‘may decline’ has a major role to play. 28 U.S.C. § 1367 Practice Commentary (West Supp.1993). We do not lightly disturb a district court’s § 1367(e)(3) determination to remand state law claims. See, e.g., Rhyne v. Henderson County, 973 F.2d 386, 395 (5th Cir.1992) (“the district court has properly dismissed all of the federal questions that gave it original jurisdiction in this case. Therefore, we find that the district court’s dismissal of the state-law claims was proper under 28 U.S.C. § 1367(c)(3)”); Cook, Perkiss & Liehe Inc. v. Northern California Collection Serv., 911 F.2d 242, 247 (9th Cir.1990). The Supreme Court in United Mine Workers of America v. Gibbs, emphasized that “[njeedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of the applicable law.” 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Considerations of comity are particularly important in the context of state elections. We have repeatedly refused to get involved in resolving state election disputes arising under state laws. See Hubbard v. Ammerman, 465 F.2d 1169, 1181 (5th Cir.1972) cert. den. 410 U.S. 910, 93 S.Ct. 967, 35 L.Ed.2d 272 (1973) (“Since this local election contest had turned toward the legality of" } ]

[ { "docid": "16702959", "title": "", "text": "a claim arising under the Constitution, the Laws of the United States, and treaties made under their authority and the relationship between that claim and the state claim can be found to constitute, but one constitutional case. The state claims must be linked to the federal claim by a “common nucleus of operative facts”, and must be sufficiently substantial.to confer .federal court jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966); Confederación Laborista De Puerto Rico v. Cervecería India, Inc., 607 F.Supp. 1077, 1081 (D.Puerto Rico 1985). In Gibbs, 383 U.S. at 726, 86 S.Ct. 1130, the Supreme Court ruled a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims. When the balance of these factors indicates a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice. See Martínez v. Colón, 54 F.3d 980, 990 (1st Cir.1995). The preferred approach is pragmatic and case-specific. Thus, in “an appropriate situation, a federal court may retain jurisdiction over state-law claims notwithstanding the early demise of all foundational federal claims.” Rodríguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir.1995); Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 257 (1st Cir.1996). The exercise of pendent jurisdiction is discretionary, and the remaining claims in this litigation against co-defendant Padrón are very closely linked to the events and to the evidence to be presented as to the employer Fuller. Thus, upon an assessment of judicial economy and fairness to litigants, it is recommended that this Court exercises pendent jurisdiction as to plaintiffs claims under state law against co-defendant Padrón. CONCLUSION In sum, it is recommended that the Motions to Dismiss be GRANTED insofar as plaintiffs" }, { "docid": "1842696", "title": "", "text": "before the Puerto Rico Anti-discrimination Unit on September 22, 2003. Moreover, a claim of sexual harassment and employment discrimination, as referred above may rise to a civil rights violation under § 1983 and/or for relief under § 1981a. In view of the foregoing, it is recommended co-defendants Genzana and Cabrera’s request for dismissal for failure to state a sexual harassment claim under Title VII and Puerto Rico Laws be DENIED. IV. Pendent State Claims. Pendent jurisdiction exists whenever there is a claim arising under the Constitution, the Laws of the United States, and treaties made under their authority and the relationship between that claim and the state claim can be found to constitute, but one constitutional case. The state claims must be linked to the federal claim by a “common nucleus of operative facts”, and must be sufficiently substantial to confer federal court jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966); Confederación Laborista De Puerto Rico v. Cervecería India, Inc., 607 F.Supp. 1077, 1081 (D.Puerto Rico 1985). In Gibbs, 383 U.S. at 726, 86 S.Ct. 1130, the Supreme Court ruled a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims. When the balance of these factors indicates a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice. See Martínez v. Colón, 54 F.3d 980, 990 (1st Cir.1995). The preferred approach is pragmatic and case-specific. Thus, in “an appropriate situation, a federal court may retain jurisdiction over state-law claims notwithstanding the early demise of all foundational federal claims.” Rodríguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir.1995); Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 257 (1st Cir.1996). The" }, { "docid": "12619491", "title": "", "text": "(noting that in the “usual case,” the court will dismiss pendent claims at the same time it dismisses federal ones, but that this is not a “mandatory rule to be applied inflexibly in all eases”); Newport Limited v. Sears, Roebuck and Co., 941 F.2d 302, 307 (5th Cir.1991) (ruling that, while it is appropriate in many instances for a court to dismiss pendent state claims at the same time it dismisses federal claims, such dismissal is neither “absolute nor automatic”), cert. denied, 502 U.S. 1096, 112 S.Ct. 1175, 117 L.Ed.2d 420 (1992). The Supreme Court has instructed that, when dealing with motions to remand pendent claims, courts should exercise their discretion in a way that best serves the principles of economy, convenience, fairness, and comity. Carnegie-Mellon, 484 U.S. at 357, 108 S.Ct. at 623. It has noted, for example, that when a federal-law claim is “eliminated at an early stage of the litigation, the District Court ha[s] a powerful reason to choose not to continue to exercise jurisdiction.” Id. at 351, 108 S.Ct. at 619. However, no single factor is dispositive. Parker & Parsley Petroleum Co. v. Dresser Industries, 972 F.2d 580, 587 (5th Cir.1992). Here, by the time the Doddys filed their second motion to remand, this lawsuit had been in litigation for more than two years, the trial date was less than a month away, the parties had already filed more than 300 pleadings, most of the parties had already prepared extensive discovery disclosures in accordance with the Federal Rules of Civil Procedure, and summary judgment motions on behalf of many of the remaining defendants were pending. Moreover, the Doddys’ remaining causes of action did not raise any novel or unsettled issues of state law; their claims could be readily decided in federal court under established Texas tort principles. We are satisfied that the district court did not abuse its discretion in declining to remand. IV The Doddys next challenge Judge Harmon’s decision to vacate her order recus-ing herself. They do not argue that the judge should have recused herself. Rather, they assert that she could not take" }, { "docid": "2572198", "title": "", "text": "Dismiss and without any argument that the Family and Medical Leave Act (“FMLA”) claims, 29 U.S.C. § 2611(4), be dismissed on the same grounds as the ADA claims. (Docket No. 22, p. 13). A review of the Amended Complaint shows no claims have been made by plaintiff under the FMLA. Accordingly, there is no need for us to discuss the request for dismissal of the FMLA claims. G. Pendent Jurisdiction. PREPA and co-defendants Rosario, Nieves and Blanes request that, upon the dismissal of plaintiffs federal claims, any supplemental claims under state law should be dismissed. Pendent jurisdiction exists whenever there is a claim arising under the Constitution, the Laws of the United States, and treaties made under their authority and the relationship between that claim and the state claim can be found to constitute, but one constitutional case. The state claims must be linked to the federal claim by a “common nucleus of operative facts”, and must be sufficiently substantial to confer federal court jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966); Confederación Laborista De Puerto Rico v. Cervecería India, Inc., 607 F.Supp. 1077, 1081 (D.Puerto Rico 1985). In Gibbs, 383 U.S. at 726, 86 S.Ct. 1130, the Supreme Court ruled that a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims. When the balance of these factors indicates a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice. See Martínez v. Colón, 54 F.3d 980, 990 (1st Cir.1995). The preferred approach is pragmatic and case-specific. Thus, in “an appropriate situation, a federal court may retain jurisdiction over state-law claims notwithstanding the early demise of all foundational federal claims.” Rodríguez v. Doral Mortage" }, { "docid": "23536006", "title": "", "text": "Supreme Court’s articulation of the scope and nature of district courts’ discretion in exercising jurisdiction over pendent state law claims.” McClelland, 155 F.3d at 519. We must therefore consider both the statutory provisions of 28 U.S.C. § 1367(c) and the balance of the relevant factors of judicial economy, convenience, fairness, and comity that the Supreme Court outlined in Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350-51, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988), and United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), in determining whether the district court abused its discretion in allowing the Batistes’ voluntary dismissal of their remaining state-law claims. Although we have stated that our “general rule” is to decline to exercise jurisdiction over pendent state-law claims when all federal claims are dismissed or otherwise eliminated from a case prior to trial, this rule is neither mandatory nor absolute. McClelland, 155 F.3d at 519 (citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir.1989)); see Cohill, 484 U.S. at 350 n. 7, 108 S.Ct. 614 (stating that “in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine ... will point toward declining to exercise jurisdiction over the remaining state-law claims”). Thus, while the district court’s dismissal of the Batistes’ federal claims “provides ‘a powerful reason to choose not to continue to exercise jurisdiction,’ no single factor is dispositive in this analysis.” McClelland, 155 F.3d at 519 (quoting Cohill, 484 U.S. at 351, 108 S.Ct. 614); see Newport Ltd. v. Sears, Roebuck & Co., 941 F.2d 302, 307 (5th Cir.1991). We therefore must review the district court’s decision “in light of the specific circumstances of the case at bar.” McClelland, 155 F.3d at 519; see Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 585 (5th Cir.1992). We begin our analysis of the factors relevant to the pendent jurisdiction inquiry by noting that the remaining claims do not involve any “novel or complex” issues of state law. Newport Ltd., 941 F.2d at 308" }, { "docid": "23299882", "title": "", "text": "clearly predominate over the (now nonexistent) Furthermore, as noted above, not only have we stated that it is our \"general rule\" to remand cases when all federal claims are disposed of prior to trial, but the Supreme Court has counseled that the dismissal of all federal claims weighs heavily in favor of declining jurisdiction. See Gibbs, 86 S.Ct. at 1139, and Cohill, 108 S.Ct. at 619. The Supreme Court has also provided additional guidance regarding review of the discretionary retention of pendent state law claims. In Cohil4 the Supreme Court discussed the seminal case of United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), specifically focusing on the considerations appropriate to the exercise of jurisdiction over pendent state law claims after all federal claims had been eliminated from a case. 108 S.Ct. at 618-19. The Court counseled that, pursuant to the reasoning and holding of Gibbs, \"a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims.\" Cohili 108 S.Ct. at 619. The Court went on to state that when a \"balance of these factors indicates that a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction.\" Id. (footnote and internal citation omitted). Thus, both our \"general rule\" and the reasoning contained in Gibbs and Cohill indicate that remand is the correct disposition in the case at bar. Finally, based on a case presenting issues somewhat analogous to those under consideration here, this Court held that remand was mandated due to concerns of comity and the Congressional intent that cases involving workers' compensation issues be resolved in state courts. In Jones v. Roadway Express, Inc., 931 F.2d 1086 (5th Cir.1991), we construed 28 U.S.C. § 1445(c), which bars the removal of workers' compensation cases," }, { "docid": "17252795", "title": "", "text": "were unfounded. (Jewett Dep. at 89.) Moreover, these complaints did not involve the searches of individuals based on less than the requisite suspicion. Thus, plaintiff has not shown that any complaints lodged against Billing-slea were similar to the incident at the heart of this case. Accordingly, any failure to investigate complaints properly could not have been the “moving force” behind the constitutional violations alleged in the instant case. See Board of County Comm’rs v. Brown, 520 U.S. 397, 117 S.Ct. 1382, 1391, 137 L.Ed.2d 626 (1997). III. Plaintiffs’ State Law Claims Because all the claims over which the Court had original jurisdiction now have been removed from the case due to the Court’s decision to grant defendants’ motions for summary judgment with respect to plaintiffs’ federal claims, § 1367(c)(3) applies. As the Supreme Court has observed, “a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendant state-law claims. When the balance of these factors indicates that a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (footnote omitted). See also Hardy v. Birmingham Bd. Of Educ., 954 F.2d 1546, 1550 (11th Cir.1992). The Court concludes that dismissal is appropriate in this case, because plaintiffs’ federal claims have been dismissed. Moreover, “[njeedless decision of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.” United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d" }, { "docid": "7179737", "title": "", "text": "a state law case. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed. United Mine Workers v. Gibbs, 383 U.S. 715, 727, 86 S.Ct. 1130, 1139-40, 16 L.Ed.2d 218 (1966). Thus, while the passage of time is one factor favoring Davis’s argument, it is by no means determinative. [A] federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims. When the balance of these factors indicates that a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only statelaw claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice. Carnegie-Mellon Univ. v. Cohill, — U.S. -, 108 S.Ct. 614, 618-19, 98 L.Ed.2d 720 (1988) (citations and footnote omitted); see also United States v. Zima, 766 F.2d 153, 1158 (7th Cir.1985) (“After dismissal of federal claims, the district court must focus on factors such as judicial economy, fairness (particularly the prejudicial passage of state limitations periods) and convenience to the litigants, and the novelty or difficulty of the state law issues involved to determine whether to retain ancillary jurisdiction.”). Davis does not contend that his claims are time barred and that the policy of “fairness” therefore favors the exercise of jurisdiction by the district court. Davis simply asserts that it is inconvenient for him to have to refile in state court. But, as the Seventh Circuit has said, “Having to bring parallel suits may be a hardship, but it is not an injustice.” Hartford Accident & Indem. Co. v. Sullivan, 846 F.2d 377, 381 (7th Cir.1988). Davis does not dispute, nor could he, that principles of comity will be well-served by allowing the state courts to resolve claims solely of state law. It is true, of" }, { "docid": "1703117", "title": "", "text": "in Counts II-VII of Rivera’s complaint, and dismissed Count VIII (negligence). Because we hold that Murphy was not entitled to qualified immunity and that summary judgment on Count I should not, therefore, have been granted in his favor, we also hold that the court erred in granting summary judgment on Rivera’s pendent state law claims. Even had the court been correct in its grant of summary judgment on the § 1983 claim, it would not have been proper to grant .summary judgment on the pendent state law claims. Rather, in this case, the court should have dismissed the pendent claims over which the court no longer had jurisdiction, thereby allowing the plaintiff to pursue the action in state court where it was first brought. As the Supreme Court stated in Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1987): Under [United Mine Workers v.] Gibbs [383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)], a federal court should consider and weigh in each case, and at every stage of the litigation, the values of- judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims. When the balance of these factors indicates that a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice. Id. at 350, 108 S.Ct. at 619 (emphasis supplied) (footnote omitted). See also Cullen v. Mattaliano, 690 F.Supp. 93 (D.Mass.1988) (“it is the settled rule in this Circuit that in a non-diversity case, where pendent state claims are joined with a federal cause of action and that federal cause of action is the subject of a successful summary judgment motion, the pendent state claims should be dismissed.”). Id. at 99. The court had federal question jurisdiction to hear the § 1983 claim and therefore had jurisdiction to hear pendent state law claims which “derive[d] from" }, { "docid": "10697983", "title": "", "text": "send them to state court. See id. at n. 7, 108 S.Ct. 614. According to the Fifth Circuit, “[o]ur general rule is to dismiss state claims when the federal claims to which they are pendent are dismissed.” Parker & Parsley Petroleum Co. v. Dresser Industries, 972 F.2d 580, 585 (5th Cir.1992) (citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir.1989)). Here, the federal claims against all of the defendants have been dismissed and only state law claims remain. Because the federal claims are being dismissed before trial, the factors of judicial economy, convenience, fairness, and comity suggest that this court ought to decline jurisdiction over the remaining state law claims against these defendants. See 28 U.S.C. § 1367(c)(3). Those claims are therefore dismissed without prejudice. III. CONCLUSION Because Rahr had inquiry notice of his section 10(b) and section 18 claims against the defendants more than a year before he filed his suit and because the fifing of Krogman v. Grant Thornton did not toll the statute of limitations with respect to his claims, all of Rahr’s federal securities law claims are time barred. Accordingly, the defendants’ motions to dismiss those claims are GRANTED. Further, since no federal law claims remain in this case, Rahr’s other claims against the defendants — all of which are governed exclusively by state law — are DISMISSED without prejudice to Rahr’s refiling them in state court. SO ORDERED. . Rahr counters with a district court case of his own, Wenneman v. Brown, 49 F.Supp.2d 1283 (D.Utah 1999). However, in Wenneman, the plaintiffs had not been as clear about their knowledge of the attorneys’ role in preparing disclosures, and the court concluded that knowledge of the company’s fraud itself, coupled with mere knowledge of the identity of the company’s counsel, was insufficient to provide inquiry notice of the attorneys’ contributions to the fraud. Id. at 1293. Here, the facts tell a different story. Rahr alleges that he relied on the work product of the defendants and knew specifically who had produced it. Complaint ¶¶ 121-130. Thus, when he discovered the fraud, he had to have" }, { "docid": "3253209", "title": "", "text": "be the body to make such changes. Only Congress has the resources to adequately investigate and determine whether or not liability under CERCLA should be imposed on additional parties. Until such time, the courts should not deviate from the four existing categories of potentially liable parties which Congress clearly mandated under CERCLA. For the above reasons, plaintiffs’ CERCLA claim is dismissed as to defendants JCI, Hoover Universal and Hoover. State Law Claims In addition to the CERCLA claim, plaintiffs also alleged violations of the Michigan Environmental Protection Act. Count III of the complaint alleges nuisance and Count IV alleges fraud. According to the plaintiffs, this Court has pendent jurisdiction over the state claims. Plaintiffs assert that the state law claims arose from the same common nucleus of operative fact as the CERCLA claim. Since the federal and state claims all arose from the same disposal of hazardous substances at 122 Enterprise Drive, plaintiffs submit pendant jurisdiction exists under United Mine Workers v. Gibbs, 383 U.S. 715, 727, 86 S.Ct. 1130, 1139-40, 16 L.Ed.2d 218 (1966). In Gibbs, the court emphasized that pendent jurisdiction is a doctrine of discretion. Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139. As a result, the court must weigh factors such as judicial economy, convenience, comity and fairness to determine whether or not to exercise pendent jurisdiction over state law claims. Id. The Supreme Court in Gibbs, stated: When the federal law claims have dropped out of the lawsuit in its early stages and only state law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice. Id. at 726-727, 86 S.Ct. at 1139. In the instant case, the federal CERCLA claim has been dismissed leaving behind only state law claims. Since these state law claims will predominate the case in terms of proofs and scope of issues raised, this Court hereby dismisses plaintiffs’ state law claims without prejudice. CONCLUSION Based on the foregoing reasons, this Court hereby GRANTS the motion of defendants JCI, Hoover Universal and Hoover to dismiss plaintiffs’ complaint for failure to state a federal" }, { "docid": "10697981", "title": "", "text": "parties who, intending all along to pursue individual claims, assert reliance on the proposed class action just long enough to validate their otherwise time barred claims. See Wachovia, 461 F.Supp. at 1012. Here, by filing an individual suit before class certification was determined, Rahr frustrated the purpose of the class action tolling doctrine and should not now be able to reap its benefits. Accordingly, the court finds that the class action in Krogman v. Grant Thornton did not toll the statute of limitations for Rahr’s claims in this case. B. Pendent State Law Claims Rahr has also brought several state law claims against these defendants. See Counts III, IV, V, VI, VII, and VIII of the Complaint. Because all of his federal claims are time barred, Rahr’s pendent state law claims are, in the exercise of the court’s discretion, dismissed without prejudice. Federal court jurisdiction exists over an entire action, including state law claims, when the federal and state law claims “ ‘derive from a common nucleus of operative fact’ and are ‘such that [a plaintiff] would ordinarily be expected to try them all in one judicial proceeding.’ ” Carnegie-Mellon University v. Cohill, 484 U.S. 343, 349, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (quoting United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). Yet supplemental jurisdiction over state law claims is a “doctrine of discretion, not of plaintiffs right.” Gibbs, 383 U.S. at 726, 86 S.Ct. 1130. Consequently, “a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims.” Carnegie-Mellon, 484 U.S. at 350, 108 S.Ct. 614. When the federal claims are dismissed before trial and only state law claims remain, the balance of factors to be considered under the supplemental jurisdiction doctrine weigh heavily in favor of declining jurisdiction; therefore, the federal court should usually decline the exercise of jurisdiction over the remaining claims and" }, { "docid": "10411345", "title": "", "text": "& Co., 613 F.Supp. 249, 251 (D.Mass.1985) (“It has long been held that, for the purposes of diversity, a partnership is a citizen of each jurisdiction of which a partner is a citizen.”). Since defendant’s partners are citizens of most of the 50 states including New York and Missouri, the states where plaintiffs are incorporated and have their principal places of business, complete diversity is lacking. Since the federal claim has been dismissed with prejudice at such an early stage in the lawsuit, this is not an appropriate case to exercise pendent jurisdiction over the state-law claims. “[I]f the federal claims are dismissed before trial ... the state claims should be dismissed as well.” United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). While dismissal is not mandatory, a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a ease brought in that court involving pendent state-law claims. When the balance of these factors indicates that a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice ... in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered ... will point toward declining to exercise jurisdiction over the remaining state-law claims. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, n. 7, 108 S.Ct. 614, 619, n. 7, 98 L.Ed.2d 720 (1988) (emphasis added). I find no factors in this case suggesting that this court should retain jurisdiction of the state-law claims in the absence of any federal-law claims. Conclusion Plaintiffs are not entitled to a third chance to plead their federal claims. Plaintiffs were put on notice of pleading deficiencies when defendant moved to dismiss the original complaint. Where plaintiffs have had “ample opportunity to allege" }, { "docid": "2572199", "title": "", "text": "S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966); Confederación Laborista De Puerto Rico v. Cervecería India, Inc., 607 F.Supp. 1077, 1081 (D.Puerto Rico 1985). In Gibbs, 383 U.S. at 726, 86 S.Ct. 1130, the Supreme Court ruled that a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims. When the balance of these factors indicates a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice. See Martínez v. Colón, 54 F.3d 980, 990 (1st Cir.1995). The preferred approach is pragmatic and case-specific. Thus, in “an appropriate situation, a federal court may retain jurisdiction over state-law claims notwithstanding the early demise of all foundational federal claims.” Rodríguez v. Doral Mortage Corp., 57 F.3d 1168, 1177 (1st Cir.1995); Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 257 (1st Cir.1996). The exercise of pendent jurisdiction is discretionary. In view of the foregoing, federal claims against PREPA, Blanes, Rosario and Nieves survive the motion to dismiss. Thus, upon an assessment of judicial economy and fairness to litigants, the Court should exercise pendent jurisdiction as to plaintiffs Commonwealth claims against PREPA, Rosario, Nieves and Blanes. CONCLUSION It is recommended that the Motion to Dismiss of PREPA and the individual co-defendants be GRANTED in part and DENIED in part. In sum, it is recommended to the Court as follows: — Motion to Dismiss for failure to state a claim under 42 U.S.C.A. § 1983 be DENIED. •— Co-defendants Blanes, Rosario and Nieves’ Motion to Dismiss on grounds they enjoy qualified immunity as to the § 1983 claims be DENIED at this time. — Motion to Dismiss for failure to state a claim under 42 U.S.C.A. §§ 1985 and 1986 be GRANTED and this cause of action be" }, { "docid": "22466905", "title": "", "text": "715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966), noting that the justification for pendent jurisdiction lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them. Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well. [Footnotes and citations omitted.] The Court has not treated Gibbs as establishing a bright-line rule for pendent jurisdiction but has called for a more flexible analysis, balancing the values of economy, convenience, fairness, federalism, and comity. See, e.g., Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 & n. 7, 108 S.Ct. 614, 619 & n. 7, 98 L.Ed.2d 720 (1988) (citing Rosado, 397 U.S. at 403-05, 90 S.Ct. at 1213-14). The Carnegie-Mellon Court did state, though, that when the single federal-law claim is eliminated at an “early stage” of the litigation, the district court has “a powerful reason to choose not to continue to exercise jurisdiction.” Id. 484 U.S. at 351, 108 S.Ct. at 619. Our general rule is to dismiss state claims when the federal claims to which they are pendent are dismissed. Wong v. Stripling, 881 F.2d 200, 204 (5th Cir.1989). C. Dresser argues that the federal claim was dismissed at a “preliminary stage” in the proceedings and that the district court failed to articulate specific considerations of judicial economy, convenience, and fairness that would support pendent jurisdiction, perhaps because .there were none. Thus, Dresser contends that when the RICO claims were dismissed, there had been no “substantial commitment of judicial resources to the nonfederal claims,” W.R. Grace & Co. v. Continental Casualty Co., 896 F.2d 865, 872 (5th Cir.1990), as the court had conducted only one hearing, other proceedings having been held before a magistrate judge. Parker &" }, { "docid": "7179736", "title": "", "text": "several years before his claims are set for trial. Although we sympathize with Mr. Davis’s frustration, his arguments do not show an abuse of discretion by the district court. In its United Mine Workers decision, the Court considered many of the contentions implicit in Davis’s argument: The question of power [to decide pendent state claims] will ordinarily be resolved on the pleadings. But the issue whether pendent jurisdiction has been properly assumed is one which remains open throughout the litigation. Pretrial procedures or even the trial itself may reveal a substantial hegemony of state law claims, or likelihood of jury confusion, which could not have been anticipated at the pleading stage. Although it will of course be appropriate to take account in this circumstance of the already completed course of the litigation, dismissal of the state claim might even then be merited.... [Recognition of a federal court’s wide latitude to decide ancillary questions of state law does not imply that it must tolerate a litigant's effort to impose upon it what is in effect only a state law case. Once it appears that a state claim constitutes the real body of a case, to which the federal claim is only an appendage, the state claim may fairly be dismissed. United Mine Workers v. Gibbs, 383 U.S. 715, 727, 86 S.Ct. 1130, 1139-40, 16 L.Ed.2d 218 (1966). Thus, while the passage of time is one factor favoring Davis’s argument, it is by no means determinative. [A] federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims. When the balance of these factors indicates that a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only statelaw claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice. Carnegie-Mellon Univ. v. Cohill, — U.S. -, 108 S.Ct. 614, 618-19," }, { "docid": "7996352", "title": "", "text": "the pressing issue of the proper exercise of pendent jurisdiction of the state-law claims advanced along with the RICO claim. In dismissing without prejudice the state-law claims the district court cited the rubric that, “Where federal claims are dismissed before trial, pendent state claims should be dismissed as well.” Newport, 739 F.Supp. at 1084 (citing United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Wong v. Stripling, 881 F.2d 200 (5th Cir.1989)). While that rule of law generally presents an appropriate course of action in many instances, it is neither absolute nor automatic. It neither directs nor guides the disposition of a case such as that at bar. As the Supreme Court noted of late: More recently, we have made clear that this statement does not establish a mandatory rule to be applied inflexibly in all cases. The statement simply recognizes that in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine— judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state-law claims. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (citation omitted), 108 S.Ct. 614, 619 n. 7, 98 L.Ed.2d 720, 730 n. 7 (1988) {CMU). In CMU, the Court gave clear guidance to the district courts in their determination of the appropriate exercise of pendent jurisdiction pursuant to Gibbs. Under Gibbs, a federal court should consider and weigh in each case, and at every stage of litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims. When the balance of these factors indicates that a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice. Id. at 350, 108 S.Ct. at 618-19, 98 L.Ed.2d at 729-30. The" }, { "docid": "1842697", "title": "", "text": "Rico 1985). In Gibbs, 383 U.S. at 726, 86 S.Ct. 1130, the Supreme Court ruled a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims. When the balance of these factors indicates a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice. See Martínez v. Colón, 54 F.3d 980, 990 (1st Cir.1995). The preferred approach is pragmatic and case-specific. Thus, in “an appropriate situation, a federal court may retain jurisdiction over state-law claims notwithstanding the early demise of all foundational federal claims.” Rodríguez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir.1995); Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249, 257 (1st Cir.1996). The exercise of pendent jurisdiction is discretionary, and the remaining claims in this litigation against co-defendant Genzana and Cabrera are very closely linked to the events and to the evidence to be presented as to the employer Blan-co. Thus, upon an assessment of judicial economy and fairness to litigants, it is recommended this Court exercises pendent jurisdiction as to plaintiffs claims under state law against co-defendants Gen-zana and Cabrera. CONCLUSION For the above-stated reasons, its is recommended to the Court to GRANT IN PART AND DENY IN PART co-defendants Genzana and Cabrera’s Motion to Dismiss of (Docket No. 4) and DISMISS WITH PREJUDICE plaintiffs Title VII claims and Law 80 claims against co-defendants Genzana and Cabrera for lack of individual liability. In addition, it is rec- oramended co-defendants Genzana and Cabrera’s request for dismissal for failure to state a claim for sexual harassment under Title VII and Puerto Rico laws and to dismiss state law claims under Puerto Rico Laws 100, 17 and 69 be DENIED. Finally, it is recommended the supplemental claims brought against co-defendants" }, { "docid": "23626175", "title": "", "text": "In addition, it contends that injuries caused by predatory conduct occurring after the release would not have been discharged even if they arose as a result of a scheme or conspiracy that was ongoing when the release was signed. The district court concluded that the federal predatory pricing claims were undischarged because the agreement unambiguously applied only to causes of action related to the prior litigation. It also relied on Chapman’s oral testimony concerning his intent at the time he signed the agreement and on Covington v. Brewer, 101 Ga.App. 724, 115 S.E.2d 368, 372-73 (1960), in which the court held that the scope of a release as intended by the parties could not be presumed to encompass rights respecting a subject matter not clearly referred to in the body of the agreement. But cf. Ingram Corp. v. J. Ray McDermott & Co., 698 F.2d 1295, 1311-12 (5th Cir.1983). The doctrine of pendent jurisdiction as outlined in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966), gives the district court power to decide claims arising under state law as to which there was no independent basis for federal jurisdiction but which share a common nucleus of operative fact with federal claims. The court also has discretion not to hear such state law claims. Under Gibbs, a federal court should consider and weigh, in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims. When the balance of these factors indicates that a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline to exercise its jurisdiction by dismissing the case without prejudice. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 619, 98 L.Ed.2d 720 (1988) (footnote omitted). While the doctrine is a flexible one according great leeway to the court, see id. at" }, { "docid": "10697982", "title": "", "text": "plaintiff] would ordinarily be expected to try them all in one judicial proceeding.’ ” Carnegie-Mellon University v. Cohill, 484 U.S. 343, 349, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (quoting United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966)). Yet supplemental jurisdiction over state law claims is a “doctrine of discretion, not of plaintiffs right.” Gibbs, 383 U.S. at 726, 86 S.Ct. 1130. Consequently, “a federal court should consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction over a case brought in that court involving pendent state-law claims.” Carnegie-Mellon, 484 U.S. at 350, 108 S.Ct. 614. When the federal claims are dismissed before trial and only state law claims remain, the balance of factors to be considered under the supplemental jurisdiction doctrine weigh heavily in favor of declining jurisdiction; therefore, the federal court should usually decline the exercise of jurisdiction over the remaining claims and send them to state court. See id. at n. 7, 108 S.Ct. 614. According to the Fifth Circuit, “[o]ur general rule is to dismiss state claims when the federal claims to which they are pendent are dismissed.” Parker & Parsley Petroleum Co. v. Dresser Industries, 972 F.2d 580, 585 (5th Cir.1992) (citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir.1989)). Here, the federal claims against all of the defendants have been dismissed and only state law claims remain. Because the federal claims are being dismissed before trial, the factors of judicial economy, convenience, fairness, and comity suggest that this court ought to decline jurisdiction over the remaining state law claims against these defendants. See 28 U.S.C. § 1367(c)(3). Those claims are therefore dismissed without prejudice. III. CONCLUSION Because Rahr had inquiry notice of his section 10(b) and section 18 claims against the defendants more than a year before he filed his suit and because the fifing of Krogman v. Grant Thornton did not toll the statute of limitations with respect to his claims, all" } ]

[ { "docid": "22107179", "title": "", "text": "permitting him to waive his right to counsel. . All proceedings regarding the instant petition were conducted before then District Judge Johnnie B. Rawlinson, rather than Judge Pro, who had presided over the earlier proceedings. . Section 2244(d)(1) provides: “A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of— (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.” .Section 2244(d)(2) provides: \"The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” . Tillema also contends that he was entitled to statutory tolling during the pendency of his first section 2254 petition. Concurrently with the issuance of our opinion, the Supreme Court held that a federal habeas petition is not an \"application for State post-conviction or other collateral review” within the meaning of section 2244(d)(2) and, as a result, the limitation period is not statutorily tolled while a petitioner seeks federal habeas review. Duncan v. Walker, 531 U.S. 991, 121 S.Ct. 2120 (2001). Therefore, Tillema’s argument on this ground is without merit. . The Court explained: \"An application is 'filed,' as that term is commonly understood, when it is delivered" } ]

[ { "docid": "22452308", "title": "", "text": "Chavis, 382 F.3d at 925; Nino, 183 F.3d at 1005. Whether Gaston is entitled to tolling of the intervals between the disposition of one application and the filing of another is, however, a more complicated matter. In Saffold, the State of California argued that AEDPA’s statute of limitations should not be tolled during the intervals between applications because “during this period of time,.the petition is not under court .consideration” and therefore not “pending.” 536 U.S. at 219, 122 S.Ct. 2134. The Supreme Court disagreed. It wrote, first, that California’s “reading of the word ‘pending’ [ ] is not consistent with the word’s ordinary meaning,” id. at 219, 122 S.Ct. 2134, and, second, that such a construction of “pending” would do violence to Congress’s intent in passing AED-PA. It explained: California’s reading would also produce a serious statutory anomaly. A federal habeas petitioner must exhaust state remedies before he can obtain federal habeas relief. The statute makes clear that a federal petitioner has not exhausted those remedies as long as he maintains “the right under the law of the State to raise” in that State, “by any available procedure, the question presented.” 28 U.S.C. § 2254(c). We have interpreted this latter provision to require the federal habeas petitioner to “invok[e] one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1[ ] (1999). The exhaustion requirement serves AEDPA’s goal of promoting “comity, finality, and federalism,” Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000), by giving state courts “the first opportunity to review [the] claim,” and to “correct” any “constitutional violation in the first instance.” Boerckel, supra, at 844-845, 119 S.Ct. 1728. And AEDPA’s limitations period — with its accompanying tolling provision — ensures the achievement of this goal because it “promotes the exhaustion of state remedies while respecting the interest in the finality of state court judgments.” Duncan v. Walker, 533 U.S. 167, 178, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). California’s interpretation violates these principles by encouraging state prisoners to file federal" }, { "docid": "22197117", "title": "", "text": "date to file his petition for federal habeas corpus. However, the limitation period may be tolled: “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). Austin claims that his petition, filed January 29,1998, was timely because the limitations period was tolled in his case while his petition for post-conviction review was pending in the Ohio courts. Although the case was pending, the district court held that the statute of limitations period was not tolled, on the grounds that the complaint on which Austin’s post-conviction review was based — the technical defect in the indictment does not present a cognizable federal habeas claim. But Austin’s post-conviction petition, as originally presented to the trial court, contained two complaints. As a result, we are confronted by two different questions, each of first impression in this circuit. The first complaint, regarding the defect in the indictment’s language, is clearly an issue of Ohio law and does not raise a federal constitutional question. It was properly filed in the Court of Common Pleas of Mahoning County, pursuant to Ohio Rev.Code 2953.21, on December 1, 1994, and received appellate review for the first time in the Seventh District Court of Appeals, in a judgment filed May 6, 1997. That judgment was sustained by the Supreme Court of Ohio when it declined to hear the case, in an order filed September 17,1997. Thus, we are presented with the question of whether a state post-conviction petition which is otherwise properly filed must, to toll the AEDPA statute of limitations under § 2244(d)(2), raise a federal constitutional issue. The Supreme Court’s recent discussion of the exhaustion requirement in connection with state prisoners’ federal habeas petitions leaves little doubt that it must. See O’Sullivan v. Boerckel, 526 U.S. 838, ---, 119 S.Ct. 1728, 1732-33, 144 L.Ed.2d 1 (1999). Just as the tolling provision applies to a state review “with respect to the pertinent judgment or claim,” so the" }, { "docid": "7767763", "title": "", "text": "whether equitable tolling enlarged the time period for filing, and not whether an actual innocence claim could equitably toll the statute of limitations, we do not address this issue. Moreover, it is apparent that Diaz had all of the evidence to pursue this argument at least by the time that he filed his first federal habeas petition because he attached Jose Maqueria’s affidavit recanting his trial testimony to that petition. Therefore, he would not qualify for equitable tolling. AFFIRMED. . Later, the Supreme Court held that a timely § 2254 petition that is dismissed without prejudice will not toll the limitations period. Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). . 28 U.S.C. § 2244(d)(1) reads: A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of— (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. .28 U.S.C. § 2244(d)(2) reads: The time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. . Diaz also mentions that the claims asserted in his initial § 2254 petition had actually been exhausted, and therefore with respect to those" }, { "docid": "5630214", "title": "", "text": "problem and thus has forfeited the benefits of that statute. Owens v. Boyd, 235 F.3d 356 (7th Cir.2000); United States v. Marcello, 212 F.3d 1005 (7th Cir.2000). Austin concluded that tolling occurs under § 2244(d)(2) only if a prisoner includes in his state collateral attack at least one of the issues raised in the federal challenge. The court reasoned: “Otherwise, the purpose of tolling, which is to provide the state courts with the first opportunity to resolve the prisoner’s federal claim, is not implicated.” 200 F.3d at 395. This is not correct; it confuses tolling with exhaustion. A state court must be given the first opportunity to address the federal issue, see 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); but this exhaustion requirement can be satisfied on direct appeal as well as on collateral attack. Usually it is preferable to raise the federal question as soon as possible, which means at trial and on direct appeal. Cf. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). This does not imply, however, that state prisoners must proceed immediately from their direct appeals to federal collateral attacks. A state collateral proceeding based solely on state-law issues may avoid the need for federal relief, and a tolling rule permits prisoners to pursue such theories in state court without jeopardizing their ability to raise the federal constitutional issues later in federal court, if that proves to be necessary. See Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 2128, 150 L.Ed.2d 251 (2001). No matter what one makes of the policy arguments, however, the language of § 2244(d)(2) offers no leeway for them. See Artuz, 531 U.S. at 10, 121 S.Ct. 361 (“Whatever merits ... policy arguments [concerning § 2244] may have, it is not the province of [judges] to rewrite the statute to accommodate them.”). Time is suspended while a “properly filed” state collateral attack “with respect to the pertinent judgment or claim is pending” (emphasis added). Austin reads the word “judgment” out of § 2244(d)(2) and tolls the" }, { "docid": "22910634", "title": "", "text": "150 F.3d at 102-03. That one-year grace period expired April 24, 1997, over nine months before the instant petition was filed. However, AEDPA provides that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation.” 28 U.S.C. § 2244(d)(2). By not counting the time during which a petition is pending in state court, the tolling provision preserves the “long-standing federal policy” of requiring habeas appellants to exhaust state court remedies prior to initiating suit in federal court. Mills v. Norris, 187 F.3d 881, 883-84 (8th Cir.1999) (noting that “[t]he tolling period in § 2244(d)(2) complements [the exhaustion requirement under 28 U.S.C. § 2254(c) ] by extending the time for filing federal petitions while state remedies are being exhausted”); see also O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999) (noting that exhaustion doctrine is based upon the understanding that “state courts should have the first opportunity to review [an unlawful confinement] claim and provide any necessary rehef’)• We have not yet considered whether the pending-state-petition tolling provision extends the one-year grace period established in Ross. Several other circuit courts have considered the issue, however, and have held that the tolling provision applies to petitions challenging pre-AEDPA convictions. See Gaskins v. Duval, 183 F.3d 8, 10 (1st Cir.1999); Fields v. Johnson, 159 F.3d 914, 916 (5th Cir.1998) (per curiam); Gendron v. United States, 154 F.3d 672, 675 (7th Cir.1998) (per curiam) (resolving consolidated cases), cert. denied — U.S. -, 119 S.Ct. 1758, 143 L.Ed.2d 790 (1999); Hoggro v. Boone, 150 F.3d 1223, 1226 (10th Cir.1998); Lovasz v. Vaughn, 134 F.3d 146, 149 (3d Cir.1998); see also Mills, 187 F.3d at 882-84 (applying § 2244(d) tolling provision to habeas petition challenging pre-AEDPA conviction without discussing propriety of doing so); Guenther v. Holt, 173 F.3d 1328, 1331 (11th Cir.1999) (same). We agree with these circuits and hold that AEDPA’s pending-state-petition tolling provision does apply to a petition challenging a pre-AEDPA conviction. To hold otherwise" }, { "docid": "4104933", "title": "", "text": "identifies the correct governing legal principle from [the Supremem Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. B. Statute of Limitations Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir.1998). In calculating the one-year limitation period, the “time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted....” 28 U.S.C. § 2244(d)(2). In addition, the term “pending” in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir.1999); Barnett v. Lemaster, 167 F.3d 1321, 1323 (10th Cir.1999). The Supreme Court held in Duncan v. Walker that “an application for federal habeas corpus review is not an ‘application for State post-conviction or other collateral review’ within the meaning of 28 U.S.C. § 2244(d)(2),” and that therefore the section does “not toll the limitation period during the pendency of [a petitioner’s] first federal habeas petition.” 533 U.S. 167, 181-82, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDPA’s one-year limitations period is not tolled during the pen-dency of" }, { "docid": "23238939", "title": "", "text": "“in custody pursuant to the judgment of a State court” to file an application for a writ of habeas corpus. Title 28 U.S.C. § 2244(d)(2) provides for tolling of this one-year period as follows: “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” For prisoners whose convictions became final prior to April 24, 1996, the effective date of the Anti Terrorism and Effective Death Penalty Act, the one-year limitations period runs against them as of that date. Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir.1999). Abela’s judgment of conviction became final prior to April 24, 1996, so his one-year limitations period began running on that date. The Supreme Court recently concluded that a federal habeas corpus petition does not constitute “State post-conviction or other collateral review” in order to toll the one-year limitations period pursuant to section 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 182, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). Significantly, for our purposes, the Court construed the phrase “State post-conviction or other collateral review” to mean “State post-conviction [review]” and “other State collateral review.” Id. at 175-76, 121 S.Ct. 2120. Accordingly, the section 2241(d)(1) limitations period is not tolled while federal habeas corpus proceedings are pending, because federal habeas proceedings are neither “State post-conviction” nor “other State collateral review.” Id. at 181-82, 121 S.Ct. 2120. Thus, the more narrow question presented here is whether a petition for writ of certiorari to the Supreme Court may constitute a “properly filed” and “pending” application for “State post-conviction [review]” or “other State collateral review” so as to toll the section 2244(d)(1) limitation period. This Court’s pre-Duncan decision in Isham v. Randle, 226 F.3d 691 (6th Cir.2000), cert. denied, 531 U.S. 1201, 121 S.Ct. 1211, 149 L.Ed.2d 124 (2001), upon which the panel opinion relied, dealt with the situation where a petitioner could have sought, but did not seek, certiorari review of his Ohio collateral review motion. We held that “the one" }, { "docid": "14150085", "title": "", "text": "179, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). Since Crews’ conviction became final prior to April 24, 1996, the effective date of AED-PA, he had a one-year grace period, until April 23, 1997, to file his habeas corpus petitions. See Nara v. Frank, 264 F.3d 310, 315 (3d Cir.2001). Under AEDPA’s statutory tolling provision, the limitations period is tolled for “the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending....” 28 U.S.C. § 2244(d)(2). It is undisputed that Crews qualifies for statutory tolling for the period from January 13, 1997, to August 20, 1998, because his properly filed first PCRA Petition was pending during this period. Since 264 days of Crews’ limitations period passed prior to the filing of his first PCRA petition, he had 101 days following the Pennsylvania Supreme Court’s denial of his first PCRA petition, or until November 30, 1998, to file his petition for a writ of habeas corpus. He satisfied this deadline by filing his September 2, 1998, application, in response to which the District Court granted him an extension until March 15, 1999, to file his habeas corpus petition. He filed his habeas corpus petition on March 15, 1999, Thus, his habeas corpus petition was timely. The petition, however, is a mixed one. Under AEDPA, subject to certain exceptions, “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State.... ” 28 U.S.C. § 2254(b)(1). This exhaustion rule promotes “comity in that it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation.” Walker, 533 U.S. at 179, 121 S.Ct. 2120. Since the petition contains unexhausted claims, the District Court dismissed it without prejudice to refile after exhaustion, concluding that Rose v." }, { "docid": "22452309", "title": "", "text": "law of the State to raise” in that State, “by any available procedure, the question presented.” 28 U.S.C. § 2254(c). We have interpreted this latter provision to require the federal habeas petitioner to “invok[e] one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1[ ] (1999). The exhaustion requirement serves AEDPA’s goal of promoting “comity, finality, and federalism,” Williams v. Taylor, 529 U.S. 420, 436, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000), by giving state courts “the first opportunity to review [the] claim,” and to “correct” any “constitutional violation in the first instance.” Boerckel, supra, at 844-845, 119 S.Ct. 1728. And AEDPA’s limitations period — with its accompanying tolling provision — ensures the achievement of this goal because it “promotes the exhaustion of state remedies while respecting the interest in the finality of state court judgments.” Duncan v. Walker, 533 U.S. 167, 178, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). California’s interpretation violates these principles by encouraging state prisoners to file federal habeas petitions before the State completes a full round of collateral review. This would lead to great uncertainty in the federal courts, requiring them to contend with habeas petitions that are in one sense unlawful (because the claims have not been exhausted) but in another sense required by law (because they would otherwise be barred by the 1-year statute of limitations). Id. at 220, 122 S.Ct. 2134. The Court therefore concluded that habeas petitioners in “typical ‘appeal’ States” are entitled to “interval” tolling under § 2244(d)(2), that is, to tolling for the time “during the interval between a lower court’s entry of judgment and the timely filing of a notice of appeal (or petition for review) in the next court.” Id. at 219, 221, 122 S.Ct. 2134. The Court in Saffold held that habeas petitioners proceeding through California’s “original writ” system are also entitled to “interval tolling.” Id. at 223, 122 S.Ct. 2134; see Nino, 183 F.3d at 1006 (holding that “the AEDPA statute of limitations is tolled for ‘all of the time during which" }, { "docid": "11676420", "title": "", "text": "period of time, the petition is not under court consideration” and therefore not “pending.” 536 U.S. at 219, 122 S.Ct. 2134. The Supreme Court disagreed. It wrote, first, that California’s “reading of the word ‘pending’ [ ] is not consistent with the word’s ordinary meaning,” id. at 219, 122 S.Ct. 2134, and, second, that such a construction of “pending” would do violence to Congress’s intent in passing AED-PA. It explained: California’s reading would also produce a serious statutory anomaly. A federal habeas petitioner must exhaust state remedies before he can obtain federal habeas relief. The statute makes clear that a federal petitioner has not exhausted those remedies as long as he maintains “the right under the law of the State to raise” in that State, “by any available procedure, the question presented.” 28 U.S.C. § 2254(c). We have interpreted this latter provision to require the federal habeas petitioner to “invok[e] one complete round of the State’s established appellate review process.” O’Stdlivan v. Boerckel, 526 U.S. 838, 845 [119 S.Ct. 1728, 144 L.Ed.2d 1] (1999). The exhaustion requirement serves AEDPA’s goal of promoting “comity, finality, and federalism,” Williams v. Taylor, 529 U.S. 420, 436 [120 S.Ct. 1479, 146 L.Ed.2d 435] (2000), by giving state courts “the first opportunity to review [the] claim,” and to “correct” any “constitutional violation in the first instance.” Boerckel, supra, at 844-845 [119 S.Ct. 1728]. And AEDPA’s limitations period — -with its accompanying tolling provision — ensures the achievement of this goal because it “promotes the exhaustion of state remedies while respecting the interest in the finality of state court judgments.” Duncan v. Walker, 533 U.S. 167, 178 [121 S.Ct. 2120, 150 L.Ed.2d 251] (2001). California’s interpretation violates these principles by encouraging state prisoners to file federal habeas petitions before the State completes a full round of collateral review. This would lead to great uncertainty in the federal courts, requiring them to contend with habeas petitions that are in one sense unlawful (because the claims have not been exhausted) but in another sense required by law (because they would otherwise be barred by the 1-year statute of" }, { "docid": "17994567", "title": "", "text": "The' district court disagreed with this argument, holding that “petitioner was not attempting to exhaust his state remedies” during the four year period between the denial by the Superior Court of his petition and the date of his application for relief on different grounds to the California Supreme Court. Welch does not dispute this factual conclusion. Thus, the question we must now answer is whether Welch is entitled to statutory tolling pursuant to § 2244(d)(2). B. Analysis The statutory issue in this case is quite narrow. It boils down to whether the period starting with Welch’s abandonment of his first habeas claim in 1994, and encompassing his four and one-half year period of inaction, qualifies under AEDPA’s relevant tolling provision as “time during which a properly filed application for State post-conviction or other collateral review ... is pending.” 28 U.S.C. § 2244(d)(2). If not, the federal courts have no authority to entertain Welch’s petition. After the district court’s decision, and after our initial three-judge panel decision in this case, see Welch v. Newland, 267 F.3d 1013 (9th Cir.2001), the Supreme Court decided Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002). In that case, the Court held — in defining the term “pending” in § 2244(d)(2) with respect to California’s habeas corpus law and procedure and the federal issue of statutory tolling — that a petitioner is normally entitled to “one full round” of collateral review in state court free of federal interference. While that full round is properly in progress, AED-PA’s one-year statute is tolled. Id. at 222. The Court reasoned that such a construction protects “the principles of ‘comity, finality, and federalism,’ by promoting ‘the exhaustion of state remedies while respecting the interest in the finality of state court judgments.’ ” Id. (quoting Duncan v. Walker, 533 U.S. 167, 178, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001)). Notwithstanding his four and one-half year delay between petitions and the difference in the claims asserted, Welch asserts that this holding necessarily means that his two-phase quest in state court must be viewed in its totality as" }, { "docid": "11268642", "title": "", "text": "tolling during the ninety-day period in which the petitioner would have been allowed to ask the United States Supreme Court to grant certiorari to review the [state court’s] denial of his direct appeal (the fact that the petitioner did not seek certiorari is immaterial).”). The statute of limitations is tolled whenever “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). We have held that an application for state post-conviction relief is “pending”' — and, thus, the statute of limitations is tolled— not only when the application “actually is being considered by the trial or appellate court, but also during the ‘gap’ between the trial court’s initial disposition and the petitioner’s timely filing of a petition for review at the next level.” Currie v. Matesanz, 281 F.3d 261, 266 (1st Cir.2002) (internal quotation marks omitted); see also Carey v. Saffold, — U.S. -, 122 S.Ct. 2134, 2136, 153 L.Ed.2d 260 (2002) (confirming the prevailing view that an application remains pending between “a lower state court’s decision and the filing of a notice of appeal to a higher state court”). Such tolling enables state prisoners to comply with AEDPA’s exhaustion provisions, 28 U.S.C. § 2254(b) and (c), which require them to give state courts a “full opportunity” to address constitutional claims before presenting those claims to a federal court, O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Here, Nowaczyk filed his § 2254 petition in federal district court on June 20, 1997, roughly two months after the statute of limitations began to run. The petition stated four claims: (1) that there was insufficient evidence to support his conviction; (2) that the jury was permitted to consider prejudicial evidence; (3) that he received ineffective assistance of counsel at trial; and (4) that he was denied the right to a neutral judge both at trial and on appeal. Unlike the first three claims, No-waczyk had not raised the issue of judicial bias on direct appeal from his state conviction. In AEDPA parlance," }, { "docid": "5597720", "title": "", "text": "say that a petition continues to be ‘pending’ during the period between one court’s decision and a timely request for further review by a higher court.” Fernandez, 227 F.3d at 980. The common understanding is that “an action or suit is ‘pending’ from its inception until the rendition of final judgment.” Black’s Law Dictionary 1134 (6th ed.1990). A judgment usually does not become “final” until the completion of appellate review or the expiration of time for seeking such review. See 28 U.S.C. § 2244(d)(1) (stating that AEDPA’s statute of limitations begins to run when the challenged state judgment “became final by the conclusion of direct review or the expiration of the time for seeking such review”). It follows that an action remains “pending” through the appeals process. See Swartz, 204 F.3d at 420 (“Tolling the period of limitation between the time a state court denies post-conviction relief and the timely appeal or request for allowance of appeal is consistent with the plain meaning of the statutory language. That view is consistent with the exhaustion requirement of § 2254(c). The purpose of state remedy exhaustion is to “afford the state courts, which have an equal responsibility with the federal courts to vindicate federal constitutional rights, the first opportunity to remedy a constitutional violation.” Dickerson v. Walsh, 750 F.2d 150, 154 (1st Cir.1984) (citing Fay v. Noia, 372 U.S. 391, 418-19, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963)). The Supreme Court has held that state courts also must have a “full” opportunity to address constitutional claims. O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Thus, state prisoners cannot simply present their claims to the state trial court; they must “invokef ] one complete round of the State’s established appellate review process.” Id. AEDPA’s tolling provision complements the exhaustion requirement “by protecting a state prisoner’s ability later to apply for federal habeas relief while state remedies are being pursued.” Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 2128, 150 L.Ed.2d 251 (2001); cf. Gaskins, 183 F.3d at 10 (“Applying the tolling provision [during the judicially-crafted grace" }, { "docid": "23644429", "title": "", "text": "the United States Supreme Court upon exhausting state appellate procedures governing state post-conviction or other collateral review, is included in the time tolled under 28 U.S.C. § 2244(d)(2).” See 28 U.S.C. § 2253. Although in answering the certi fied questions we affirm the district court’s denial of Smaldone’s petition for substantially the same reasons set forth by the district court, we write a brief opinion to express our intent to join our sister circuits, though on a somewhat narrower basis, in rejecting the inclusion of the ninety-day period during which a petitioner could have filed a certiorari petition after the denial of his state post-conviction petition under the tolling provision of 28 U.S.C. § 2244(d)(2). A. Tolling for Supreme Court Review The AEDPA imposed for the first time a one-year statute of limitations for the filing of federal habeas petitions. 28 U.S.C. § 2244(d)(1). To support the federal interest in comity and finality of state court judgments, see Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 2128, 150 L.Ed.2d 251 (2001), AEDPA added to this time constraint a tolling provision allowing courts to suspend the progress of the statute of limitations for “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). Because petitioner raises a question of law as to whether this provision may include the ninety-day period for pursuit of certiorari on state collateral motions, we review the district court’s dismissal of Smaldone’s habeas petition de novo. See Williams v. Artuz, 237 F.3d 147, 150 (2d Cir.2001); Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.1999). Other circuits examining this issue have found, with some variation in the breadth of their holdings, that the statute of limitations should not toll during the period for seeking certiorari. See Stokes v. Philadelphia, 247 F.3d 539, 542 (3d Cir.2001); Crawley v. Catoe, 257 F.3d 395, 399-401 (4th Cir.2001); Snow v. Ault, 238 F.3d 1033, 1035 (8th Cir.2001); Isham v. Randle, 226 F.3d 691, 695 (6th Cir.2000); Gutierrez v. Schomig, 233" }, { "docid": "23191185", "title": "", "text": "In Duncan v. Walker, 531 U.S. 991, 121 S.Ct. 2120, 150 L.Ed.2d 251, the Court reversed a decision of the Second Circuit which held that a federal habeas petition, properly filed and pending in the district court, filed under 28 U.S.C. § 2254, tolled the period of the statute of limitations under 28 U.S.C. § 2244(d)(2) the same as would have a properly filed state habeas petition. See Walker v. Artuz, 208 F.3d 357 (2nd Cir.2000), reversed by Duncan v. Walker, 531 U.S. 991, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). The Court read 28 U.S.C. § 2244(d)(2) so that “the word ‘State’ applies to the entire phrase ‘post-conviction or other collateral review.’ ” Duncan v. Walker, 531 U.S. 991, 121 S.Ct. 2120, 2125, 150 L.Ed.2d 251. Because federal habeas corpus proceedings are neither state post- conviction review nor other state collateral review, the Court held that they do not toll the one-year limitations period under 28 U.S.C. § 2244(d)(2). This was the same construction of 28 U.S.C. §’2244(d)(2) reached by the Tenth Circuit in Rhine v. Boone. See Rhine v. Boone, 182 F.3d at 1156 (“We are satisfied that, in the wording of § 2244(d)(2), 'State’ modifies the phrase ‘post-conviction review’ and the phrase ‘other collateral review.’ ”). We are in agreement with the Tenth Circuit that “[a] petition for writ of certiorari to the United States Supreme Court is simply not an application for state review of any kind; it is neither an application for state post-conviction review nor an application for other state collateral review.” Rhine v. Boone, 182 F.3d at 1156. We further agree with the reasoning of the Tenth Circuit that: the term “pending” in § 2244(d)(2) must be construed to encompass all of the time during which a state prisoner is attempting, through proper use of state court procedures, to exhaust state court remedies with regard to a particular postconviction application. Rhine, 182 F.3d at 1155 (italics in original) (internal quotations omitted). The rule of exhaustion of state remedies is a long-standing federal procedural rule which has been codified at least since 1948 and" }, { "docid": "1231442", "title": "", "text": "a state post-conviction petition or other application for collateral review that does not contain a federally cognizable claim. The Sixth Circuit, relying primarily on the federal habeas exhaustion provision and principles of comity, concluded AEDPA’s limitations period is tolled only if a prisoner includes in his state post-conviction petition a federal or constitutional law issue which also is raised in his federal habeas petition. See Austin v. Mitchell, 200 F.3d 391 (6th Cir.1999). The Ninth Circuit and Seventh Circuit, relying on the plain language of AEDPA’s tolling provision, determined the limitations period is tolled so long as the state post-conviction petition attacks the pertinent judgment or claim. See Carter v. Litscher, 275 F.3d 663 (7th Cir.2001); Tillema v. Long, 253 F.3d 494 (9th Cir.2001). In Austin, the Sixth Circuit analogized AEDPA’s tolling provision to the exhaustion provision of the basic federal habeas statute, 28 U.S.C. § 2254(c). 200 F.3d at 394. The Supreme Court has held the federal habeas exhaustion provision is not meant to apply to purely state law or state constitutional claims. See O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999). Austin, therefore, reasoned AEDPA’s tolling provision, which also is part of the basic federal habeas statute, likewise was not meant to apply to state post-conviction petitions or collateral challenges which do not contain a federal claim. 200 F.3d at 394. Subsequent to the Sixth Circuit’s decision in Austin, the Supreme Court discussed AEDPA’s tolling provision in the context of addressing the “properly filed” requirement. See Artuz v. Bennett, 531 U.S. 4, 10, 121 S.Ct. 361, 364-65, 148 L.Ed.2d 213 (2000). Despite recognizing that both parties advanced arguments based on the habeas statute’s exhaustion provision, the Court declined to address those arguments, stating: Whatever merits these and other policy arguments may have, it is not the province of this Court to rewrite the statute to accommodate them. We hold as we do because respondent’s view seems to us the only permissible interpretation of the text — which may, for all we know, have slighted policy concerns on one or the other" }, { "docid": "9783050", "title": "", "text": "support of his interpretation of 28 U.S.C. § 2244(d)(1), Fielder understandably relies on language in Sweger v. Chesney, 294 F.3d 506 (3d Cir.2002), but we are not persuaded by this argument. We note, first, that Sweger did not concern the issue presented here. Sweger did not decide when the habeas statute of limitations begins to run under 28 U.S.C. § 2244(d)(1). Instead, Sweger concerned the interpretation of 28 U.S.C. § 2244(d)(2), which provides for the tolling of the statute of limitations while a state post-conviction proceeding is pending. The question in Sweger was whether under § 2244(d)(2) a state proceeding tolls the statute with respect to just the claims at issue in the state proceeding or with respect to all the claims included in a subsequently filed federal petition. We held that the statute is tolled for all of the claims in the federal petition. That interpretation of § 2244(d)(2) obviously does not require us in this ease to adopt the Walker interpretation of 28 U.S.C. § 2244(d)(1). Nor is there any logical inconsistency between the holding in Sweger and our holding here. The heart of our reasoning in Sweger was as follows: Section 2244(d)(2) states, “the time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2) (emphasis added). Reading this language to require that the state post-conviction proceeding raise the claims contained in the habeas petition ignores the use of the word “judgment” in the statute. See Carter [v. Litscher, 275 F.3d 663, 665 (7th Cir.2001)] (“Austin [v. Mitchell, 200 F.3d 391 (6th Cir.1999)] reads the word ‘judgment’ out of § 2244(d)(2) and tolls the time only while a particular ‘claim’ ... is before the state court. That is just not what the statute says. Any properly filed collateral challenge to the judgment tolls the time to seek federal collateral review.”) (emphasis in original). 294 F.3d at 516-17 (bracketed material added). We thus relied on a straightforward application of" }, { "docid": "22910633", "title": "", "text": "ability to respond to the petition.” Ross v. Artuz, 150 F.3d 97, 99 (2d Cir.1998) (alteration in original) (internal quotations . and citation omitted). AEDPA changed this by imposing a one-year limitations period on habeas petitions that begins to run from the latest of several events, including the date on which the challenged state judgment becomes final. See generally 28 U.S.C. § 2244(d)(1). AEDPA’s one-year limitations period does not strictly apply to the instant petition because appellant’s conviction became final prior to AEDPA’s enactment. See Reyes v. Keane, 90 F.3d 676, 678-79 (2d Cir.1996) (holding that AEDPA’s one-year limitations period ddes not apply retroactively), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 336-37, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997) (holding that AEDPA provisions for non-capital cases “generally apply only to cases filed after [AEDPA] became effective”). However, we have held that prisoners whose habeas claims accrued prior to AEDPA’s enactment are afforded the “reasonable time” of “one year after the effective date of AEDPA” to file a federal habeas petition. Ross, 150 F.3d at 102-03. That one-year grace period expired April 24, 1997, over nine months before the instant petition was filed. However, AEDPA provides that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation.” 28 U.S.C. § 2244(d)(2). By not counting the time during which a petition is pending in state court, the tolling provision preserves the “long-standing federal policy” of requiring habeas appellants to exhaust state court remedies prior to initiating suit in federal court. Mills v. Norris, 187 F.3d 881, 883-84 (8th Cir.1999) (noting that “[t]he tolling period in § 2244(d)(2) complements [the exhaustion requirement under 28 U.S.C. § 2254(c) ] by extending the time for filing federal petitions while state remedies are being exhausted”); see also O’Sullivan v. Boerckel, 526 U.S. 838, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999) (noting that exhaustion doctrine is based upon the understanding that “state courts should have the first opportunity" }, { "docid": "5839365", "title": "", "text": "pigs’ ears, [AEDPA] is not a silk purse in the art of statutory 'drafting.” Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). As Trenkler’s counsel acknowledged at oral argument, that argument was largely foreclosed by Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001), in which the Supreme Court relied on that same canon in interpreting § 2244(d)(2). Moreover, even without resort to Russello, we would find ample cause to conclude that Congress’s decision to provide for tolling in § 2244(d)(2) but not § 2255 was an intentional one. Federal habeas corpus review of state convictions under § 2254 implicates principles of comity that are inapplicable in the context of federal review of federal convictions under § 2255. “Comity ... dictates that when a prisoner alleges that his continued confinement for a state court conviction violates federal law, the state courts should have the first opportunity to review this claim and provide any necessary relief.” O’Sullivan v. Boerckel, 526 U.S. 838, 844, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); see also 28 U.S.C. § 2254(b)(1) (requiring state prisoners to exhaust available state post-conviction remedies before filing § 2254 petition for federal relief). As the Supreme Court explained in Duncan, the tolling provision contained in § 2244(d)(2) reflects Congress’s attempt to promote the exhaustion requirement while preserving a meaningful opportunity for state prisoners to seek federal review. 533 U.S. at -, 121 S.Ct. at 2128. In the absence of an explicit tolling provision, state prisoners could obtain relief in federal court only in the unlikely event that they were able to exhaust all available state review within the one-year limitations period for § 2254 petitions. Federal prisoners like Trenkler do not face the same problem. Nothing in AEDPA obligated Trenkler to exhaust the opportunity for relief under Rule 33 before seeking review of his conviction and sentence under § 2255. He was free to file a § 2255 motion immediately without fear that it would be dismissed for failure to exhaust available post-conviction reme dies. We acknowledge, however, that the availability" }, { "docid": "11268651", "title": "", "text": "its opinion. The Supreme Court decided Duncan in June of 2001, holding that the statute of limitations is tolled only by applications for state post-conviction review, and that later-dismissed federal habeas petitions do not have any tolling effect. 533 U.S. 167, 181— 82, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). The upshot of that decision for Nowaczyk was clear: if we affirmed the dismissal of his § 2254 petition by the district court in March of 1999, the fact that it had been pending before the federal courts for roughly four years would have no impact on the statute of limitations. Absent equitable tolling, the AEDPA one-year limitations period would have expired for No-waczyk in September of 1999, and any subsequent petition would be time barred. Following the Supreme Court’s decision in Duncan, we appointed counsel for No-waczyk, ordered supplemental briefing, and scheduled oral argument. We instructed counsel to focus on three questions: whether the district court erred in holding that Nowaczyk’s second application for state post-conviction review tolled AEDPA’s statute of limitations; whether the district court abused its discretion in dismissing, rather than staying, Nowac-zyk’s § 2254 petition, given the statute of limitations concerns; and whether, if we concluded that dismissal was appropriate, Nowaczyk would be entitled to equitable tolling when he attempted to refile his habeas petition. In its supplemental brief and again at oral argument, the state conceded that Nowaczyk’s second application for state post-conviction review tolled the limitations period. See Tillema v. Long, 253 F.3d 494, 502 (9th Cir.2001) (holding that “AEDPA’s period of limitation is tolled during the pendency of a state application challenging the pertinent judgment, even if the particular application does not include a claim later asserted in the federal habeas petition”); accord Carter v. Litscher, 275 F.3d 663 (7th Cir.2001) (same). But see Austin v. Mitchell, 200 F.3d 391 (6th Cir.1999) (adopting contrary view). Accordingly, we focus on the question whether the district court should have stayed the federal proceedings rather than dismissing Nowaczyk’s petition outright. We conclude that, under the circumstances of this case, the district court abused its discre tion" } ]

[ { "docid": "13930129", "title": "", "text": "VAN GRAAFEILAND, Circuit Judge: Clarence R. Sears, Jr. appeals from a judgment of conviction entered on April 5, 1976, after a jury trial in the Southern District of New York before Judge John M. Cannella. Appellant, who was charged in a two-count indictment with collecting and attempting to collect extensions of credit by extortionate means, 18 U.S.C. § 894, does not question the sufficiency of the evidence adduced against him. His only assertion of error is that a supplemental instruction given by Judge Cannella in response to an inquiry by the jury was erroneous and prejudicial. We do not agree and affirm the judgment of conviction. We reach our decision to affirm not without some difficulty. Although we find no merit in appellant’s specific claim on appeal, we view the charges against him as a trifling example of the class of activities Congress intended to regulate through Title II of the Consumer Credit Protection Act. Appellant contends that the loan in question was one between two friends and that his threats of violence were never seriously intended as a method of obtaining repayment. There was substantial evidence to sustain this contention, and the case was a close one. Nevertheless, we have concluded that, although somewhat trivial, it is within the reach of 18 U.S.C. § 894, Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971); United States v. Andrino, 501 F.2d 1373 (9th Cir. 1974), and we may not substitute our own view of the evidence for that of the jury. United States v. Simon, 425 F.2d 796, 799 (2d Cir. 1969), cert. denied, 397 U.S. 1006, 90 S.Ct. 1235, 25 L.Ed.2d 420 (1970). The jury was entitled to find that in July 1975, James Johnson, a letter carrier with the postal service, asked Sears for a loan. Johnson wanted to borrow $2,000 for the down payment on a house. He had previously borrowed money from Sears and had repaid it with interest. Appellant, who was also a postal employee, loaned Johnson $2,000 in cash in early August 1975. The loan was to be repaid" } ]

[ { "docid": "4205944", "title": "", "text": "transactions. *It is not necessary that the participants in the transaction be members of organized crime or that the particular activity has affected interstate commerce. The Supreme Court affirmed the validity of the approach employed in Title II with respect to an intrastate extortionate credit transaction in Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). While Perez was concerned with “loan sharking” activities, the Court held that “Extortionate credit transactions, though purely intrastate, may in the judgment of Congress affect interstate commerce”, and that the prohibition of extortionate credit transactions was within the realm of Congressional power under the Commerce Clause. 402 U.S. at 154, 91 S.Ct. at 1361. In United States v. Keresty, 465 F.2d 36 (3 Cir. 1972), cert. denied, 409 U.S. 991, 93 S.Ct. 340, 34 L.Ed.2d 258 (1972), it was held that Title II could validly be applied to a local gambling debt which could not be tied directly to organized crime. The court concluded, as we do, that the holding in Perez was not limited to loan shark transactions and that Congress haul a rational basis in attacking the economic base of organized crime through the proscription of extortionate credit transactions. The court concluded: “It is sufficient that Congress has defined a limited class of credit transactions, i. e., those involving extortionate means of extension and collection, as having a substantial effect on interstate commerce. That this particular transaction cannot be directly tied to organized crime, does not affect the validity of the congressional approach employed here. So long as the goal is within the power of Congress, we will not substitute our judgment for the judgment of Congress as to the wisdom of this particular statutory scheme.” 465 F.2d at 42-43. Bean and Metrick next contend that a § 894 violation requires proof that the underlying debt was a “juice loan”, that is, an extortionate extension of credit. As noted supra, § 892 proscribes the making of extortionate ex- tensions of credit while, on the other hand, § 894 forbids extortionate collection of “any extension of credit”. It" }, { "docid": "13082538", "title": "", "text": "HAYS, Circuit Judge: After a jury trial, appellants Jack Schwartz and George Sarkis were convicted of having employed extortionate means to collect extensions of credit, in violation of 18 U.S.C. §§ 2, 894. Each now urges that the evidence at trial was insufficient to sustain his conviction and that the prosecuting attorney’s use of the term “Mafia” in questioning a defense witness injected such prejudice into the trial as to warrant our reversal of the convictions. In addition, Schwartz contends that the jury’s verdict of guilty was inconsistent with the acquittal on a conspiracy count and was therefore ground for reversal. We reject these contentions and affirm the judgments of the district court. I Schwartz and Sarkis contend that section 894 was intended “as a weapon in the war on organized crime.” They assert that, since there was no evidence at trial that either was involved with organized crime, their convictions under section 894 cannot be sustained. We agree that the record contains no proof that either Schwartz or Sarkis had dealings with organized crime. We agree likewise that, in enacting section 894, Congress thought it could effectively be employed against large-scale criminal organizations. Conf.Rep.No. 1397, 90th Cong., 2d Sess., 2 U.S.Code Cong. & Admin.News 2021, at 2029 (1968). However, we are no longer free to agree with appellants that Congress intended thus to limit the scope of section 894. It suffices that the government proved that Schwartz and Sarkis attempted, or aided and abetted attempts, to collect extensions of credit by extortionate means. United States v. Sears, 544 F.2d 585 (2d Cir. 1976); United States v. Andrino, 501 F.2d 1373, 1377 (9th Cir. 1974); United States v. Annerino, 495 F.2d 1159, 1164-65 (7th Cir. 1974); United States v. Keresty, 465 F.2d 36, 39-41 (3d Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 340, 34 L.Ed.2d 258 (1972). See also Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). We undertake our review of the sufficiency of the evidence with this conclusion in mind. Schwartz was the president of Gaines Service Leasing Corp., a Brooklyn-based" }, { "docid": "23340825", "title": "", "text": "it does not follow that appellants’ threats fell outside the ambit of 18 U.S.C. § 894. Congress took an exceedingly broad view of what it is “to extend credit,” incorporating “any agreement, tacit or express, whereby the repayment or satisfaction of any debt or claim, whether acknowledged or disputed, valid or invalid, and however arising, may or will be deferred.” (Emphasis supplied). 18 U.S.C. § 891(1). Napoli’s diamond swindle certainly gave rise to a claim, accruing to the benefit of Jacobs, to which Napoli at least paid lip service. Cf. United States v. Annerino, 495 F.2d 1159, 1166 (7th Cir. 1974) (finding extension of credit in unauthorized use of credit cards and theft of partnership funds, followed by repayment agreement); United States v. Briola, 465 F.2d 1018, 1020-21 (10th Cir. 1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 908, 34 L.Ed.2d 688 (1973) (finding extension of credit in debt arising from fraudulent bets placed with bookmaking concern, followed by repayment agreement). Appellants suggest that this case presents merely an aggrieved shopkeeper seeking redress from a self-confessed swindler. We put to one side whether Congress lacks power to punish threats of violence even in such homespun contexts, cf. United States v. Perez, 426 F.2d 1073, 1080 (2d Cir. 1970), aff’d, 402 U. S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971); appellant Jacobs’ strategy for ensuring repayment was hardly commensurate with ordinary notions of self-help. Concededly, appellants were not involved in a classic loan-sharking operation, the specific evil against which Congress interposed 18 U.S.C. § 894. See Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). However, Perez has not been construed to suggest that only those so engaged with proven organized crime connections may constitutionally be convicted under the statute. See United States v. Keresty, 465 F.2d 36, 42-43 (3d Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 340, 34 L.Ed.2d 258 (1972); United States v. Annerino, supra, 495 F.2d at 1165. We agree with those courts that Perez, having established that Congress has power under the Commerce Clause to proscribe the class of extortionate" }, { "docid": "23340826", "title": "", "text": "self-confessed swindler. We put to one side whether Congress lacks power to punish threats of violence even in such homespun contexts, cf. United States v. Perez, 426 F.2d 1073, 1080 (2d Cir. 1970), aff’d, 402 U. S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971); appellant Jacobs’ strategy for ensuring repayment was hardly commensurate with ordinary notions of self-help. Concededly, appellants were not involved in a classic loan-sharking operation, the specific evil against which Congress interposed 18 U.S.C. § 894. See Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). However, Perez has not been construed to suggest that only those so engaged with proven organized crime connections may constitutionally be convicted under the statute. See United States v. Keresty, 465 F.2d 36, 42-43 (3d Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 340, 34 L.Ed.2d 258 (1972); United States v. Annerino, supra, 495 F.2d at 1165. We agree with those courts that Perez, having established that Congress has power under the Commerce Clause to proscribe the class of extortionate activities in which appellants engaged, precludes us from “ ‘ex-cisftng], as trivial, individual instances’ of the class.” Perez v. United States, supra, 402 U.S. at 154, 91 S.Ct. at 1361. V. Conclusion Appellants’ remaining contentions require little comment. The trial court was empowered by 18 U.S.C. § 894 to impose separate sentences for participation in the use of extortionate means and conspiracy to do so. Appellant Bufalino urges that the trial judge relied on misinformation in pronouncing sentence. But appellant did not avail himself of his opportunity to specifically contest the truth of any such statements during the sentencing proceeding, nor did he request an evidentiary hearing on any of the purportedly false allegations. We have considered appellants’ challenges to the trial court’s charge to the jury, and find no reversible error. Appellants’ contention that they were denied a speedy trial is specious, since the district court properly found that delays otherwise excessive were tolled by the unavailability of an essential prosecution witness. After consideration of all appellants’ other arguments, we find merit in none." }, { "docid": "23672476", "title": "", "text": "owed on the bad checks. In both instances, Nadir deferred repayment of the debt and, therefore, extended credit for purposes of section 894. See United States v. Horton, 676 F.2d 1165, 1171-72 (7th Cir.1982), cert. denied, 459 U.S. 1201, 103 S.Ct. 1164, 75 L.Ed.2d 431 (1983); United States v. Mase, 556 F.2d 671, 674 (2d Cir.1977), cert. denied, 435 U.S. 916, 98 S.Ct. 1472, 55 L.Ed.2d 508 (1978). Appellants’ argument that the statute does not encompass the use of extortionate means to collect legitimate debts is without merit. Although Congress was primarily concerned with abuses by organized crime, it is clear that section 894 proscribes a class of activities, that is, extortionate credit transactions. United States v. Annerino, 495 F.2d 1159,1164-65 (7th Cir.1974). The statute is directed to the use of extortionate means to collect monies which creditors claim are owing to them, regardless how the debt arose. United States v. Briola, 465 F.2d 1018, 1021 (10th Cir.1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 908, 34 L.Ed.2d 688 (1973). Section 894 has been applied to the collection of lawful debts. See, e.g., United States v. Nace, 561 F.2d 763, 770-71 (9th Cir.1977) (loan to manage business); United States v. Schwartz, 548 F.2d 427, 429-30 (2d Cir.1977) (purchase and leaseback of trucking equipment); United States v. Sears, 544 F.2d 585, 586 (2d Cir.1976) (loan for downpayment on a house). It is irrelevant that the debts Maratón and Parisenne owed to West Coast Metallics were legitimate. The evidence was sufficient to establish that appellants used coercion to collect extensions of credit and this was a violation of section 894. VI. Lopez’s Conspiracy and Racketeering Convictions The jury found Lopez guilty of Count 13, assaulting a postal carrier in violation of 18 U.S.C. § 2114, but the court granted his motion for judgment of acquittal. Lopez claims that this acquittal requires that his conspiracy and RICO convictions be reversed because it is impossible to determine whether the jury relied on Count 13 as the overt act in furtherance of a conspiracy and as one of the two predicate acts necessary to show" }, { "docid": "1970508", "title": "", "text": "891(1). These provisions were directed primarily at persons engaged in loan-sharking and organized crime, see Perez v. United States, 402 U.S. 146, 147, 91 S.Ct. 1357, 1358, 28 L.Ed.2d 686 (1971), though they are not specifically limited to such situations. See United States v. Bufalino, 576 F.2d 446, 452 (2d Cir.), cert. denied, 439 U.S. 928, 99 S.Ct. 314, 58 L.Ed.2d 321 (1978). We have acknowledged that, the statute is a broad one, “reflect[ing] Congress’s desire to craft a flexible set of tools for prosecutors to wield with “vigor and imagination’____” United States v. Scotti, 47 F.3d 1237, 1244 (2d Cir.1995) (citing H.R.Conf.Rep. No. 1397, 90th Cong., 2d Sess. 31, reprinted in 1968 U.S.C.C.A.N. 2021, 2029). There is no doubt that the government presented evidence that would have supported a finding that the defendant used “extortionate means” in an attempt to collect money from Capri. However, we agree with the district court that these extortionate means were not used to collect on “any extension of credit” that fits the definition prescribed in § 891. Since the evidence cannot be viewed to show a “loan” between Wallace and Capri, the government argues that Wallace and Capri had (in the words of the statute) “enter[ed] into [an] agreement, tacit or express, whereby the repayment or satisfaction of any debt or claim, whether acknowledged or disputed, valid or invalid, and however arising, [was] deferred.” 18 U.S.C. § 891. According to the government, such an extension of credit was made, because (in the words of the indictment) “defendants and their co-conspirators would and did sell illegitimate checks to a cooperating witness ... on a credit basis.” However, there was no evidence of a “sale” on “credit.” The closest commercial analog to the cheek transaction is a consignment in which the obligation to pay is contingent and no title passes. There was no indication that Capri would pay Wallace for the checks if the scheme to defraud the bank had failed. The parties merely agreed to split the proceeds of a transaction if the transaction succeeded. Although Wallace demanded payment of the money after the" }, { "docid": "13082539", "title": "", "text": "We agree likewise that, in enacting section 894, Congress thought it could effectively be employed against large-scale criminal organizations. Conf.Rep.No. 1397, 90th Cong., 2d Sess., 2 U.S.Code Cong. & Admin.News 2021, at 2029 (1968). However, we are no longer free to agree with appellants that Congress intended thus to limit the scope of section 894. It suffices that the government proved that Schwartz and Sarkis attempted, or aided and abetted attempts, to collect extensions of credit by extortionate means. United States v. Sears, 544 F.2d 585 (2d Cir. 1976); United States v. Andrino, 501 F.2d 1373, 1377 (9th Cir. 1974); United States v. Annerino, 495 F.2d 1159, 1164-65 (7th Cir. 1974); United States v. Keresty, 465 F.2d 36, 39-41 (3d Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 340, 34 L.Ed.2d 258 (1972). See also Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). We undertake our review of the sufficiency of the evidence with this conclusion in mind. Schwartz was the president of Gaines Service Leasing Corp., a Brooklyn-based organization which extended credit to one Fred McGee in the form of a purchase and leaseback of trucking equipment. McGee fell into default on his obligations to Gaines at about the time that Gaines itself was encountering financial difficulties. Schwartz became concerned about collecting the indebtedness of McGee and of another trucker, Jack Taylor, since Schwartz considered both of these delinquencies as major factors in Gaines’ troubles. Schwartz sought unsuccessfully to persuade McGee and Taylor to make good their obligations to Gaines; also to no avail, Grove Ebbert, a Gaines employee who in the past had repossessed leased equipment for Gaines, attempted to collect the delinquent amounts. In April, 1975, Schwartz employed Sarkis to assist Ebbert. Sarkis, who resided in Puerto Rico and was a former boxer, had been recommended to Schwartz by Schwartz’ friend, Jack Cohen. Cohen’s father had employed Sarkis as a bodyguard during a strike at the former’s Puerto Rican factory. Sarkis was flown from Puerto Rico to New York City and accommodated at Gaines’ expense in a Brooklyn motel. Though Sarkis’" }, { "docid": "13082540", "title": "", "text": "organization which extended credit to one Fred McGee in the form of a purchase and leaseback of trucking equipment. McGee fell into default on his obligations to Gaines at about the time that Gaines itself was encountering financial difficulties. Schwartz became concerned about collecting the indebtedness of McGee and of another trucker, Jack Taylor, since Schwartz considered both of these delinquencies as major factors in Gaines’ troubles. Schwartz sought unsuccessfully to persuade McGee and Taylor to make good their obligations to Gaines; also to no avail, Grove Ebbert, a Gaines employee who in the past had repossessed leased equipment for Gaines, attempted to collect the delinquent amounts. In April, 1975, Schwartz employed Sarkis to assist Ebbert. Sarkis, who resided in Puerto Rico and was a former boxer, had been recommended to Schwartz by Schwartz’ friend, Jack Cohen. Cohen’s father had employed Sarkis as a bodyguard during a strike at the former’s Puerto Rican factory. Sarkis was flown from Puerto Rico to New York City and accommodated at Gaines’ expense in a Brooklyn motel. Though Sarkis’ employ for Schwartz was only of a few days’ duration, Sarkis was paid about a thousand dollars for his services. During Sarkis’ stay in New York, he and Ebbert paid four visits to McGee’s Long Island home; on the fourth visit, one of the pair set fire to McGee’s garage and automobile. Sarkis contends that the evidence shows, not the use of extortionate means to collect extensions of credit as required by section 894, but only a wanton arson which was not a federal offense. Our view of the evidence is otherwise. The first visit by Sarkis and Ebbert to McGee’s home occurred about midnight, April 21, 1975. The following morning, April 22, Sarkis and Ebbert again visited McGee’s residence. There was evidence that Sarkis told McGee that he was employed by Schwartz and wanted $5,000 that McGee owed to Gaines. Sarkis told McGee that he did not want to “hurt McGee physically.” Ebbert, in Sarkis’ presence, told McGee that, if he failed to pay in two days, Ebbert and Sarkis would return to break" }, { "docid": "1970507", "title": "", "text": "verdict. United States v. Teitler, 802 F.2d 606, 614 (2d Cir.1986). A defendant who bases an appeal on insufficiency of the evidence bears a “very heavy burden.” United States v. Ragosta, 970 F.2d 1085, 1089 (2d Cir.), cert. denied, — U.S. -, 113 S.Ct. 608, 121 L.Ed.2d 543 (1992). The district court’s judgment dismissing this claim rests upon the language of 18 U.S.C. § 894: (a) Whoever knowingly participates in any way, or conspires to do so, in the use of any extortionate means (1) to collect or attempt to collect any extension of credit, or (2) to punish any person for the nonrepayment thereof, shall be fined ... or imprisoned not more than 20 years, or both. (Emphasis added.) The “extension of credit” is a defined term: To extend credit means to make or renew any loan, or to enter into any agreement, tacit or express, whereby the repayment or satisfaction of any debt or claim, whether acknowledged or disputed, valid or invalid, and however arising, may or will be deferred. 18 U.S.C. § 891(1). These provisions were directed primarily at persons engaged in loan-sharking and organized crime, see Perez v. United States, 402 U.S. 146, 147, 91 S.Ct. 1357, 1358, 28 L.Ed.2d 686 (1971), though they are not specifically limited to such situations. See United States v. Bufalino, 576 F.2d 446, 452 (2d Cir.), cert. denied, 439 U.S. 928, 99 S.Ct. 314, 58 L.Ed.2d 321 (1978). We have acknowledged that, the statute is a broad one, “reflect[ing] Congress’s desire to craft a flexible set of tools for prosecutors to wield with “vigor and imagination’____” United States v. Scotti, 47 F.3d 1237, 1244 (2d Cir.1995) (citing H.R.Conf.Rep. No. 1397, 90th Cong., 2d Sess. 31, reprinted in 1968 U.S.C.C.A.N. 2021, 2029). There is no doubt that the government presented evidence that would have supported a finding that the defendant used “extortionate means” in an attempt to collect money from Capri. However, we agree with the district court that these extortionate means were not used to collect on “any extension of credit” that fits the definition prescribed in § 891. Since" }, { "docid": "13082543", "title": "", "text": "testified further that Sarkis originally contemplated burning McGee’s house but ultimately concurred in Ebbert’s suggestion that the fire be set only to the garage since Gaines would not be able to collect from McGee if McGee died in a fire. From the barroom, the two men drove back to McGee’s house where, again according to Ebbert, Sarkis set the fire. In view of the earlier threats to McGee and demands for payment, these circumstances entitled the jury to conclude that Sarkis set the fire to promote the end which he was well paid to secure, namely, the collection of extensions of credit from McGee. This is precisely the conduct which section 894 condemns. Schwartz’ ease is closer, but we believe that the evidence affords a sufficient basis for affirming his conviction of aiding and abetting attempts to collect credit by extortionate means. See generally United States v. Taylor, 464 F.2d 240, 244-45 (2d Cir. 1972). Schwartz testified at trial that Sarkis had been transported from Puerto Rico and employed in order to provide protection for Ebbert. Schwartz testified, and his testimony was corroborated, that Victor Mignoli, who along with McGee and Taylor was a trucker indebted to Gaines, had told him that McGee was armed with a shotgun and would shoot anyone from Gaines who attempted to repossess his equipment. Ebbert, on the other hand, denied suggesting to Schwartz that he was in need of protection. In addition, Ebbert testified that, when asked why he had brought Sarkis from Puerto Rico, Schwartz responded that he wanted to “put a scare into Fred McGee. . ” There was evidence that Schwartz had previously stated he would “fix” Fred McGee and “get blood from that Black son of a bitch.” The jury, of course, was free to discredit Schwartz’ explanation for employing Sarkis and to accept the evidence which inculpated Schwartz. Several days after the fire, when McGee visited Schwartz to obtain assurances against further violence, Schwartz stated he would “guarantee” to McGee that “nobody will both you” if Gaines was repaid. Schwartz contends that he cannot be convicted on the sole" }, { "docid": "2062836", "title": "", "text": "an unduly narrow reading of the statute. The statute makes it an offense if one “knowingly participates in any way ... in the use of any extortionate means” to collect an extension of credit. 18 U.S.C. § 894(a)(1) (emphasis added). The breadth of the language reflects Congress’s desire to craft a flexible set of tools for prosecutors to wield with “vigor and imagination,” H.R.Conf.Rep. No. 1397, 90th Cong., 2d Sess. 31, reprinted in 1968 U.S.C.C.A.N. 2021, 2029, to shut down what it had found to be the second largest source of revenue for organized crime, see Perez v. United States, 402 U.S. 146, 155, 91 S.Ct. 1357, 1362, 28 L.Ed.2d 686 (1971) (discussing legislative history), and to allay problems of proof that had stymied .prior efforts to prosecute organized crime under the Hobbs Act, see United States v. DiPasquale, 740 F.2d 1282, 1288 (3d Cir.1984), cert. denied, 469 U.S. 1228, 105 S.Ct. 1226, 84 L.Ed.2d 364 (1985); Pacione, 738 F.2d at 570. Section 894(a)(1) is therefore not confined in its reach to those who directly threaten or commit acts of violence, but encompasses indirect participation in the use of extortionate means. Cf. Bigelow, 914 F.2d at 969-71 (upholding conviction of creditor who hired extortionist collectors). Cpntrary to the view of the district court, it seems to us that the provision of financing might be sufficient for liability in circumstances in which it is closely interwoven with and facilitates the use of extortionate means. We also reject a narrowing of the statute on different grounds suggested by Rodriguez. He urges us to construe the statute “to criminalize only those actions specifically intended” by a defendant to further the extortion. At first blush, Rodriguez’s argument seems to have merit. In dealing with a defendant who actually commits acts of violence or issues threats, we have held that “[t]o be convicted [under 18 U.S.C. § 894(a)(1) ], the defendant must have intended to make a ‘threat of use[ ] of violence or other criminal means[ ] to cause harm to the person, reputation, or property of [another] person.’ ” United States v. Natale," }, { "docid": "13082542", "title": "", "text": "his legs. Sarkis failed to dissociate himself from Ebbert’s threat. Considering the surrounding circumstances, in particular the midnight timing of the previous visit to McGee’s home and Sarkis’ silent acquiescence in Ebbert’s explicit threat of violence to McGee, the jury could have concluded beyond a reasonable doubt that Sarkis’ own statement that he did not want to hurt McGee was an implicit threat that Sarkis would put aside his compunctions against physical violence if McGee did not pay his debt to Gaines. In any event, the jury could have concluded that the subsequent fire was part of a design by Sarkis to secure payments from McGee. On April 23, Sarkis and Ebbert returned to McGee’s home. After being told that McGee was away, they went to a barroom. While drinking there, according to Ebbert, Sarkis hatched the plan to commit the arson. Sarkis apparently suggested setting the fire immediately after reporting to Ebbert a telephone conversation with Schwartz in which Schwartz had told Sarkis that he “was tired of being made a fool of.” Ebbert testified further that Sarkis originally contemplated burning McGee’s house but ultimately concurred in Ebbert’s suggestion that the fire be set only to the garage since Gaines would not be able to collect from McGee if McGee died in a fire. From the barroom, the two men drove back to McGee’s house where, again according to Ebbert, Sarkis set the fire. In view of the earlier threats to McGee and demands for payment, these circumstances entitled the jury to conclude that Sarkis set the fire to promote the end which he was well paid to secure, namely, the collection of extensions of credit from McGee. This is precisely the conduct which section 894 condemns. Schwartz’ ease is closer, but we believe that the evidence affords a sufficient basis for affirming his conviction of aiding and abetting attempts to collect credit by extortionate means. See generally United States v. Taylor, 464 F.2d 240, 244-45 (2d Cir. 1972). Schwartz testified at trial that Sarkis had been transported from Puerto Rico and employed in order to provide protection for" }, { "docid": "23533996", "title": "", "text": "source, by any means. See, e.g., Horton, 676 F.2d at 1172 (drug sale); United States v. Annerino, 495 F.2d 1159, 1166 (7th Cir.1974) (unauthorized use of credit cards and misappropriation of funds); see also 18 U.S.C. § 891(1) (“any debt ... however arising”). The district court also instructed that the elements of a crime under section 894 were “violence, a claim of indebtedness and an agreement to accept payment at another time.” See DiPasquale, 561 F.Supp. at 1356. This instruction required the government to prove more than was necessary to obtain a conviction, because it separated the claimed debt from the agreement to defer repayment. Although a claimed debt plus an independent agreement to defer repayment is one type of extension of credit, see, e.g., United States v. Keresty, 465 F.2d 36, 39 (3d Cir.), cert, denied, 409 U.S. 991, 93 S.Ct. 340, 34 L.Ed.2d 258 (1972), it is not the type charged in the indictment. Citing Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the appellants argue that this variance requires reversal. The indictment in Stirone predicated an essential element of a crime on the fact that the- victim imported sand from another state, but- the district court charged that the essential element could be proved either by the victim’s importation of sand or by his planned future exportation of steel. See id. at 214, 80 S.Ct. at 271. Reversing Stirone’s conviction, the Supreme Court held that “it cannot be said with certainty that with a new basis for conviction added, Stirone was convicted solely on the charge made in the indictment the grand jury returned.” Id. at 217, 80 S.Ct. at 273. The appellants’ invocation of Stirone is not persuasive. Although the district court required proof of more than the indictment charged, we can say with certainty that if the jury found a claimed debt and an independent agreement to defer repayment, it found a claimed debt. “[I]f the indictment is sufficient, evidence which meets its allegations and proves something more with out proving an offense different from that which is charged," }, { "docid": "23533995", "title": "", "text": "146, 159 (congressional findings). The definition of an extension of credit in section 891(1) was generously drafted. The definition has been even more generously construed. Only the Boulahanis court has constrained the scope of chapter 42. We decline to follow Boulahanis because we believe that its construction is inconsistent with the language and purpose of chapter 42. We conclude that a claimed debt is one type of extension of credit under section 891(1). The indictment was therefore sufficient under 18 U.S.C. § 894(a). 2. The Jury Instructions and the Evidence. The appellants contend that the district court erred when it charged the jury as to the possibly fictitious nature of the claimed debts. As we have already noted, claimed debts may be fictitious; thus, the instruction was not incorrect. Nor did the court err when it instructed that “the claim could be based on the assertion that money had been stolen [or] that money was due for the delivery of drugs which had not been paid for.” A debt or claim may arise from any source, by any means. See, e.g., Horton, 676 F.2d at 1172 (drug sale); United States v. Annerino, 495 F.2d 1159, 1166 (7th Cir.1974) (unauthorized use of credit cards and misappropriation of funds); see also 18 U.S.C. § 891(1) (“any debt ... however arising”). The district court also instructed that the elements of a crime under section 894 were “violence, a claim of indebtedness and an agreement to accept payment at another time.” See DiPasquale, 561 F.Supp. at 1356. This instruction required the government to prove more than was necessary to obtain a conviction, because it separated the claimed debt from the agreement to defer repayment. Although a claimed debt plus an independent agreement to defer repayment is one type of extension of credit, see, e.g., United States v. Keresty, 465 F.2d 36, 39 (3d Cir.), cert, denied, 409 U.S. 991, 93 S.Ct. 340, 34 L.Ed.2d 258 (1972), it is not the type charged in the indictment. Citing Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), the appellants argue that" }, { "docid": "23672475", "title": "", "text": "States v. McMahan, 744 F.2d 647, 650 (8th Cir.1984) (accepting a check constitutes an extension of credit); United States v. DiPasquale, 740 F.2d 1282, 1288 (3d Cir.1984) (a claimed debt is an extension of credit), cert. denied, 469 U.S. 1228, 105 S.Ct. 1226, 84 L.Ed.2d 364 (1985); see also United States v. Bonanno, 467 F.2d 14, 16-17 (9th Cir.1972) (rejecting contention that section 894 does not apply to collection of simple debt), cert. denied, 410 U.S. 909, 93 S.Ct. 964, 35 L.Ed.2d 271 (1973). However, we need not decide whether an extension of credit results merely from customer default. Extension of credit is broadly defined by statute, 18 U.S.C. § 891(1) (1982), to include any agreement to defer repayment of a debt. See Boulahanis, 677 F.2d at 590. Nadir agreed to sell gold to Maratón with the understanding that Maraton’s check would not be cashed until there were sufficient funds in the account. Nadir agreed to allow the owner of Parisienne to pay an additional amount each time he ordered gold to cover the amount owed on the bad checks. In both instances, Nadir deferred repayment of the debt and, therefore, extended credit for purposes of section 894. See United States v. Horton, 676 F.2d 1165, 1171-72 (7th Cir.1982), cert. denied, 459 U.S. 1201, 103 S.Ct. 1164, 75 L.Ed.2d 431 (1983); United States v. Mase, 556 F.2d 671, 674 (2d Cir.1977), cert. denied, 435 U.S. 916, 98 S.Ct. 1472, 55 L.Ed.2d 508 (1978). Appellants’ argument that the statute does not encompass the use of extortionate means to collect legitimate debts is without merit. Although Congress was primarily concerned with abuses by organized crime, it is clear that section 894 proscribes a class of activities, that is, extortionate credit transactions. United States v. Annerino, 495 F.2d 1159,1164-65 (7th Cir.1974). The statute is directed to the use of extortionate means to collect monies which creditors claim are owing to them, regardless how the debt arose. United States v. Briola, 465 F.2d 1018, 1021 (10th Cir.1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 908, 34 L.Ed.2d 688 (1973). Section 894 has been applied" }, { "docid": "7037086", "title": "", "text": "collect debts arising out of illegal, loan sharking, or other similar activities. It is true that the statute was enacted as a response to illegal gambling and loan sharking activities. See Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). Also, most of the cases interpreting and applying § 894 have involved illegal or bad faith debts. See, e.g., United States v. Polizzi, 801 F.2d 1543, 1557 (9th Cir.1986) (debt arising from “swindle”); United States v. DiPasquale, 740 F.2d 1282 (3d Cir.1984) (drug debts), cert. denied, 469 U.S. 1228, 105 S.Ct. 1226, 84 L.Ed.2d 364 (1985); United States v. Mase, 556 F.2d 671 (2d Cir.1977) (gambling losses), cert. denied, 435 U.S. 916, 98 S.Ct. 1472, 55 L.Ed.2d 508 (1978); United States v. Roberts, 546 F.2d 596 (5th Cir.1977) (gambling debts), cert. denied, 431 U.S. 968, 97 S.Ct. 2927, 53 L.Ed.2d 1064 (1977); United States v. Annerino, 495 F.2d 1159, 1166 (7th Cir.1974) (unauthorized use of credit cards). Nevertheless, the language of the statute is not limited to attempts to collect illegal or illegitimate extensions of credit. Rather, the statute says that it is unlawful to use extortionate means to “collect or attempt to collect any extension of credit....” 18 U.S.C. § 894(a)(1). Under § 891(1), an extension of credit includes an agreement to defer “the repayment or satisfaction of any debt or claim, whether acknowledged or disputed, valid or invalid, and however arising.... ” When the terms of the statute are clear and unambiguous we need not resort to legislative history. Further, this court has previously stated as follows: “It is undoubtedly true that this statute was primarily aimed at what is commonly called loansharking, but it is not limited in its terms to a loan in the sense of money passing. See Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). From our reading of Perez we are convinced that the real thrust of the legislation is directed to the use of extortionate means in order to collect monies which the creditors maintain are owing to them, regardless of" }, { "docid": "2062835", "title": "", "text": "v. Pacione, 738 F.2d 567, 571-72 (2d Cir.1984) (“[C]ongress was concerned primarily with the use of actual and threatened violence by members of organized crime engaged in loan sharking.”). The construction the government urges would extend the reach of § 894(a)(1) to cover even the benevolent arrangement of financing by a person to save the debtor, so long as it is known that the debtor will use the funds to pay off the extortionist. Accordingly, we hold that the defendant must play some role in the extortion itself to incur liability under 18 U.S.C. § 894(a)(1); merely being the knowing “in strumentality through which the loanshark’s collection tactics could bear fruit,” contrary to the government’s contention in its brief, is not sufficient. Because the issue will likely arise on retrial, we take note of the district court’s observation that Rodriguez can only be convicted of a § 894(a)(1) offense if there is proof that he used extortionate means himself, perhaps by reinforcing threats made by Scotti, see Rodriguez, 1993 WL 534314, at *3. This seems an unduly narrow reading of the statute. The statute makes it an offense if one “knowingly participates in any way ... in the use of any extortionate means” to collect an extension of credit. 18 U.S.C. § 894(a)(1) (emphasis added). The breadth of the language reflects Congress’s desire to craft a flexible set of tools for prosecutors to wield with “vigor and imagination,” H.R.Conf.Rep. No. 1397, 90th Cong., 2d Sess. 31, reprinted in 1968 U.S.C.C.A.N. 2021, 2029, to shut down what it had found to be the second largest source of revenue for organized crime, see Perez v. United States, 402 U.S. 146, 155, 91 S.Ct. 1357, 1362, 28 L.Ed.2d 686 (1971) (discussing legislative history), and to allay problems of proof that had stymied .prior efforts to prosecute organized crime under the Hobbs Act, see United States v. DiPasquale, 740 F.2d 1282, 1288 (3d Cir.1984), cert. denied, 469 U.S. 1228, 105 S.Ct. 1226, 84 L.Ed.2d 364 (1985); Pacione, 738 F.2d at 570. Section 894(a)(1) is therefore not confined in its reach to those who directly" }, { "docid": "4205943", "title": "", "text": "18 U.S.C. § 894(a): “Whoever knowingly participates in any way, or conspires to do so, in the use of any extortionate means “(1) to collect or attempt to collect any extension of credit, or “(2) to punish any person for the nonrepayment thereof, shall be fined not more than $10,000 or imprisoned not more than 20 years, or both.” It is true, as Bean and Metrick contend, that Title II was primarily intended to attack the economic basis of organized crime. They argue that a conviction under Title II may not be sustained absent proof that the defendants are members of organized crime. Section 894(a) is not limited, however, to members of organized crime, but broadly applies to “whoever” uses extortionate means to collect an extension of credit. Likewise, its companion provision, 18 U.S.C. § 892(a), applies to “[wjhoever makes any extortionate extension of credit”. Although Congress was primarily concerned with organized crime, it is clear that a means chosen to attack it was the proscription of a class of activities, that is, extortionate credit transactions. *It is not necessary that the participants in the transaction be members of organized crime or that the particular activity has affected interstate commerce. The Supreme Court affirmed the validity of the approach employed in Title II with respect to an intrastate extortionate credit transaction in Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). While Perez was concerned with “loan sharking” activities, the Court held that “Extortionate credit transactions, though purely intrastate, may in the judgment of Congress affect interstate commerce”, and that the prohibition of extortionate credit transactions was within the realm of Congressional power under the Commerce Clause. 402 U.S. at 154, 91 S.Ct. at 1361. In United States v. Keresty, 465 F.2d 36 (3 Cir. 1972), cert. denied, 409 U.S. 991, 93 S.Ct. 340, 34 L.Ed.2d 258 (1972), it was held that Title II could validly be applied to a local gambling debt which could not be tied directly to organized crime. The court concluded, as we do, that the holding in Perez was not" }, { "docid": "7740078", "title": "", "text": "tested in battle. . . . [I]t is not, and is not intended to be, a Federal usury law, nor does it have anything to do with interest rates as such. It is, rather, a deliberate legislative attack on the economic foundations of organized crime. . The methods used in the enforcement of [underworld business obligations] are notorious. . . . [T]he conferees wish to leave no doubt of the congressional intention that chapter 42 is a weapon to be used with vigor and imagination against every activity of organized crime that falls within its terms. Conf.Rep.No.1397, 90th Cong., 2d Sess., 2 U.S.Code Cong. & Admin. News p. 2029 (1968). A more clearly stated, open-ended directive by the legislative branch to the executive branch could not have been phrased. Although the issue was not squarely presented and resolved, the Supreme Court, in Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971), discussed in dicta the underlying intent of the statute. Perez held that the extortionate credit transactions statute, 18 U.S.C. § 891 et seq., as it applied to petitioner (concededly, a “loan sharker”) was a permissible exercise by Congress of its powers under the Commerce Clause of the Constitution. The issue here is the reach of that statute — ■ its application to Andrino, who contended on appeal to be nothing more than an ordinary gambling enthusiast. Mere forms and titles aside, it is clear that Congress intended this statute to regulate purely intrastate extortionate transactions if, in its judgment, they affected interstate commerce. And, if the threatening “ ‘evil’ ” adopts a different “form,” the law created to counter it may be extended to embrace it. See Perez, supra, 402 U.S. at 154, 91 S.Ct. at 1361. The absence in this case of formal “loans” and of specified “interest” rates, in all their myriad forms, is deemed to be inconsequential insofar as the actual characteristics of the extension of credit, the accrual of a debt, and the manifestation of coercion to collect that extension are sufficiently displayed by the evidence presented. The rejection of" }, { "docid": "8581589", "title": "", "text": "occasioned by any intentional device by the Government to obtain a tactical advantage over the defendants; nor were the defendants able to prove substantial prejudice caused by the delay. United States v. Alred, 513 F.2d 330 (6th Cir.), cert. denied, 423 U.S. 828, 96 S.Ct. 47, 46 L.Ed.2d 45 (1975). Ill It is next contended that 18 U.S.C. §§ 891 and 894 are unconstitutional because they do not require proof of a nexus between the extortionate means' and interstate commerce. It is urged that the extortionate means in the present case involved a purely local intrastate activity. This contention was rejected in Perez v. United States, 402 U.S. 146, 91 S.Ct. 1357, 28 L.Ed.2d 686 (1971). The Supreme Court held that Congress, in regulating the class of activities affecting commerce, had the constitutional power to regulate purely local intrastate activities. Thus the constitutionality of Sections 891 and 894 was upheld. Stephan v. United States, 496 F.2d 527, 528 (6th Cir. 1974), cert. denied sub nom., Marchesani v. United States, 423 U.S. 861, 96 S.Ct. 116, 46 L.Ed.2d 88 (1975). The type of loan is inconsequential so long as “the actual characteristics of the extension of credit, the accrual of a debt, and the manifestation of coercion to collect that extension are sufficiently displayed by the evidence presented.” United States v. Andrino, 501 F.2d 1373, 1377 (9th Cir. 1974). The evidence in the present case was overwhelming. It was supplied by the defendants’ hired enforcer Berryman, who testified for the Government, and also by Michael and by members of his family. IV We find no prejudicial error in the court’s instructions to the jury, or in its use of the disjunctive instead of conjunctive words. We are also of the opinion that the court did not err in admitting evidence of prior similar acts of the defendants who hired Berryman to commit the acts. Berry-man testified that appellants told him to use whatever force was necessary to collect the debt. Evidence of prior misconduct is not admissible to prove the character of a person or another crime, but rather is admissible" } ]

[ { "docid": "10030724", "title": "", "text": "referring to the more stringent “standard set by the R.L.U.I.P.A.2000.” He asserted this wás so because RLUIPA “explicitly changed the standard by which restrictions on the free exercise of religion are to be judged, and clearly applies in the prison context.” Citing Mayweathers v. Newland, 314 F.3d 1062 (9th Cir .2002), and 42 U.S.C. § 2000cc-l(a)(l), Alvarez contended that RLUIPA “restores a higher standard which requires the state to demonstrate ... that its regulations or practices are ‘in furtherance of a compelling governmental] interest.’ ” Additionally, he identified RLUIPA as providing a statutory ground for relief apart from the Free Exercise Clause. He explained he was bringing suit under the “Religious Land Use and Institutionalized Persons Act (R.L.U.I.P.A.) ... in relation to ... substantial burdening and interference with Sacred Religious Objects and Practices. And violation of plaintiffs First Amendment (free exercise).” (Emphasis added.) Prison officials were “not only violating plaintiffs constitutional rights, but the Religious Land Use and Institutionalized Persons Act.” (Emphasis added.) The appellees’ reply acknowledged that Alvarez’s “claim must be analyzed under the Religious Land Use and Institutionalized Persons Act.” His “claims of an RLUIPA violation [were] without merit,” they argued, given the serious “safety and security” concerns justifying restrictions on religious practice while an inmate was in disciplinary housing. The district court granted summary judgment in favor of appellees. Citing Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir.1997), a religious exercise case litigated before the passage of RLUIPA, the court held that an inmate could prevail on a free exercise claim only by showing that prison officials “burdened the practice of [his] religion by preventing him from engaging in conduct mandated by his religious faith.” The court found the restrictions on Alvarez’s religious exercise were not a “substantial burden on the practice of his religion.” Furthermore, the court held that insofar as officials had produced “sufficient evidence” that the restrictions furthered the “legitimate institutional goals” of maintaining prison safety and security, they did not “rise to the level of a constitutional violation.” STANDARD OF REVIEW A district court’s grant of summary judgment is reviewed de novo." } ]

[ { "docid": "21885574", "title": "", "text": "Pearson alleged violations of an asserted federal proscription under 42 U.S.C. § 1981 (1988) of discriminatory discharge in private employment contracts, procedural due process rights, substantive due process rights, First Amendment rights, Title VII, and the Fourteenth Amendment right of equal protection. On each of these claims the district court granted defendant-appellees’ motion for summary judgment. We address each issue in turn, undertaking a plenary review of whether there is no genuine issue as to any material fact and whether the appel-lees are entitled to judgment as a matter of law. Carlin Communication v. Southern Bell, 802 F.2d 1352, 1356 (11th Cir.1986). II. DISCUSSION A. The 42 U.S.C. § 1981 Claim In granting summary judgment below, the district court addressed the merits of Pearson’s claims under 42 U.S.C. § 1981 for discriminatory discharge. Our review of the district court’s decision, however, need not reach the merits, as appellant’s § 1981 claim fails legally under the Supreme Court’s intervening ruling in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). In Patterson, the Court addressed the scope of § 1981 as applied to employment contracts, and held that § 1981 ... covers only conduct at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through legal process. 491 U.S. at 179-80, 109 S.Ct. at 2374. Hence, claims for discriminatory discharge are not cognizable under § 1981. Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1520 (11th Cir.1991). Thompkins v. Dekalb County Hosp. Auth., 916 F.2d 600, 601 (11th Cir.1990) (per curiam). The clear mandate of Patterson, moreover, applies retroactively to cases like the present case, in which a final judgment had not been reached at the time of the Patterson decision. Weaver, 922 F.2d at 1519. Accordingly, we affirm the district court’s grant of summary judgment on appellant’s § 1981 claim in light of Patterson. B. The First Amendment Claim Appellant’s complaint also asserted a free speech claim, alleging that the Medical Center’s action against the appellant was taken in retaliation for comments critical of overall operating room" }, { "docid": "17412056", "title": "", "text": "resulting dismissal would be without prejudice to his re-filing this mer-itless claim after exhausting the grievance procedures”). Other appellate courts have also vacated district court decisions that reached the merits — even though finding for the officials — without considering the issue of exhaustion first. See e.g., McAdoo v. Terhune, 54 Fed.Appx. 664, 664 (9th Cir.2003) (unpublished decision) (vacating grant of summary judgment, noting that the “district court erred in reaching the merits of McAdoo’s case”); Brown v. Toombs, 139 F.3d 1102, 1104 (6th Cir.1998) (holding court will not “process or decide the merits of any case on appeal that does not comply with the statute”). Whereas the PLRA requires dismissal for failure to state a claim without requiring exhaustion, no such authorization exists for a grant of summary judgment. See 42 U.S.C. § 1997e(c)(2). g. Is Dismissal With or Without Prejudice? A dismissal for failure to exhaust is usually without prejudice, Morales v. Mackalm, 278 F.3d 126, 131 (2d Cir.2002), because failure to exhaust is ordinarily a “temporary, curable, procedural flaw.” Snider, 199 F.3d at 111. That is, “[i]f the time permitted for pursuing administrative remedies has not expired, a prisoner who brings suit without having exhausted these remedies can cure the defect simply by exhausting them and then reinstituting his suit (in the event the administrative claim fails to afford him the desired relief).” Id. at 111-12. Thus, where a plaintiff is effectively barred from administrative exhaustion— such as when the time for administrative exhaustion has expired and the inmate has been denied a waiver to file a late grievance-courts have not hesitated to dismiss with prejudice. See Orta, 2003 WL 548856, at *3 (dismissing with prejudice because inmate’s transfer, from city to state custody, rendered future exhaustion impossible); Patterson v. Goord, No. 02 Civ. 759(JSM), 2002 WL 31640585, at *1 (S.D.N.Y. Nov. 21, 2002) (dismissing complaint with prejudice after plaintiff failed to obtain leave to file late grievance). Where plaintiff may be barred from refiling by the statute of limitations, however, existing authority is less clear. While “[fjailure to exhaust administrative remedies precludes only the current lawsuit,”" }, { "docid": "8782381", "title": "", "text": "was denied a reasonable opportunity to exercise his religion without adequate penological justification. B. Summary Judgment — Dismissal of Counts 1 and 4 The district court allowed Maddox’s complaint to go forward on Counts 1 and 4, but then granted the defendants’ motion for summary judgment on both counts because Maddox failed to properly exhaust his administrative remedies. Maddox concedes that he failed to grieve his complaint for access to religious materials (Count 1), Appellant’s Reply Br. p. 2 n. 1 (stating that his “grievance did not address alleged denial of access to religious literature, and therefore, his claims as to this issue were properly dismissed on summary judgment”), so we find that the district court properly dismissed that count. The district court, however, also dismissed Maddox’s claim for group worship (Count 4) because he failed to list the names of the defendants, or if not known at the time, their description, in the grievance pursuant to 20 Illinois Administrative Code § 504.810. We review de novó the question whether the prisoner has met the exhaustion requirement. See Conyers v. Abitz, 416 F.3d 580, 584 (7th Cir.2005). Exhaustion is an affirmative defense with the burden of proof on the defendants. See Jones v. Bock, 549 U.S. 199, 212, 127 S.Ct. 910,166 L.Ed.2d 798 (2007). The PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 ... until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Section 1997e(a) requires “proper exhaustion”; that is, the inmate must file a timely grievance utilizing the procedures and rules of the state’s prison grievance process. See Woodford v. Ngo, 548 U.S. 81, 90, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); see also Conyers, 416 F.3d at 584. The “applicable procedural rules” that a prisoner must properly exhaust are defined not by the PLRA, but by the prison grievance process itself. Jones, 549 U.S. at 218, 127 S.Ct. 910. We have taken a “strict compliance approach to exhaustion.” Dole v. Chandler, 438 F.3d 804, 808 (7th Cir.2006). Thus, “[a] prisoner must properly use the prison’s" }, { "docid": "7824421", "title": "", "text": "summary judgment in favor of Officer Light-ner with respect to Canell’s Establishment Clause claim. ii. Free Exercise Clause Canell also argues that Lightner’s actions infringed upon his rights under the Free Exercise Clause when Lightner’s mock-preaching and espousal of religious views interfered with Canell’s efforts to pray. We disagree. First, as we discussed above, Ca-nell has not alleged that Lightner acted pursuant to any state or prison policy authorizing prison, staff to interfere with the religious freedoms of inmates. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 2404-05, 96 L.Ed.2d 282 (1987) (holding that prison policies may interfere with the exercise of a constitutional right if they are based on valid penological objectives). Second, Lightner’s alleged activities do not constitute a substantial burden on Canell’s free exercise of his religion. See Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir.1997) (burden must be substantial and interfere with a tenet or belief that is central to religious doctrine). Canell’s only allegation is that on some occasions Lightner interfered with his prayer activities by preaching about Christian gospel. While Lightner’s evangelizing may have constituted an intrusion upon Ca-nell’s prayers on some occasions during the brief period involved, we agree with the district court’s conclusion that these intrusions were “relatively short-term and sporadic” and did not constitute a substantial interference. Accordingly, we affirm the grant of summary judgment in favor of Officer Light-ner. CONCLUSION We have jurisdiction over Canell’s appeal because it was filed prior to the enactment of the Prison Litigation Reform Act. While the Act also provides limitations on actions for mental or emotional injury, it does not preclude actions for violations of First Amendment rights. Finally, we affirm the grant of summary judgment in favor of the defendants. AFFIRMED. . Canell has not appealed- the district court's grant of summary judgment in favor of the Mult-nomah County Commissioners. . The Sixth, Seventh, and Tenth Circuits have declined to apply § 1915(g) to pending cases. See Garcia v. Silbert, 141 F.3d 1415 (10th Cir.1998) (holding that § 1915(g) does not apply to actions filed before the" }, { "docid": "7992968", "title": "", "text": "702, 707 (9th Cir.2013) (internal quotation marks, citations, and alterations omitted). Ill A. Granting Summary Judgment to Turner Was Error At the outset, we reject the government’s argument that El-Shaddai waived his right to appeal the magistrate’s findings on exhaustion because El-Shaddai did not specifically object to them. “[Pjarties who do not object to a magistrate’s report waive their right to challenge the magistrate’s factual findings but retain their right to appeal the magistrate’s conclusions of law.” Baxter v. Sullivan, 928 F.2d 1391, 1394 (9th Cir.1991). Here, El-Shaddai does not challenge the magistrate’s factual findings on whether he filed the grievance or its contents. Rather, he challenges the legal conclusion as to whether the grievance gave adequate notice with regard to Turner, which we review de novo. See Josephs v. Pac. Bell, 443 F.3d 1050, 1061 (9th Cir.2006); cf. Viniemtos v. U.S., Dep’t of Air Force Through Aldridge, 939 F.2d 762, 768 (9th Cir.1991). The question of whether the district court erred in granting summary judgment in favor of Turner is properly before us. As to the merits of the issue, the Prison Litigation Reform Act (“PLRA”) requires inmates to both substantively and procedurally exhaust all claims through administrative avenues before filing a suit in court. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). The scope of this requirement depends on the scope of administrative remedies that the state provides. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (“[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.”). In California, inmate grievances must “describe the problem and the action requested.” Cal.Code Reg., tit. 15 § 3084.2. We have said that “when a prison’s grievance procedures do not specify the requisite level of detail” needed to exhaust a claim, the standard enunciated in the Seventh Circuit applies. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir.2009). That standard provides: [w]hen the administrative rulebook is silent, .a grievance suffices if it alerts the prison to the nature of the wrong" }, { "docid": "20198642", "title": "", "text": "state a cause of action. We decline to dismiss plaintiffs section 1981 claims on that basis. 3. 42 U.S.C. § 1983 As to plaintiffs section 1983 claims, intentional discrimination on the basis of race or sex by a government employer may be covered by section 1983 as an Equal Protection violation. See Quinn v. Nassau County Police Dept., 53 F.Supp.2d 347, 356 (E.D.N.Y.1999). To the extent there is an identity between plaintiffs section 1983 claim and his Title VII claim, the section 1983 claim would be foreclosed. See Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, 143 (2d Cir.1993), cert. denied, 510 U.S. 1164, 114 S.Ct. 1189, 127 L.Ed.2d 539 (1994). If, however, plaintiff is basing his claim on a substantive right distinct from Title VII, his claim would not be precluded. Id. It is unclear from the vague, conclusory allegations in plaintiffs complaint whether he is alleging anything other than what he has already attempted to allege under Title VII. However, because his section 1983 claim must be dismissed for other reasons discussed below, we need not decide this issue. Plaintiff also asserts a claim under section 1983 for violation of his First Amendment rights, although he does not state what First Amendment rights were violated, or how they were violated. Presumably, he is complaining about what he considers to be a violation of his First Amendment right to petition the government for redress, when the defendants, acting under color of state law, allegedly retaliated against him for filing his discrimination complaint. (Plaintiff does not identify a violation of his right of free speech). The “right to petition the government for redress of grievances, which is an assurance of a particular freedom of expression, ... is subject to the same constitutional analysis as the right to free speech.” White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir.), cert. denied, 510 U.S. 865, 114 S.Ct. 185, 126 L.Ed.2d 144 (1993) (internal citations and quotations omitted). The Second Circuit has recognized that there are circumstances when complaints of system-wide employment discrimination may implicate matters of public concern, such" }, { "docid": "3143986", "title": "", "text": "the sole purpose of attending a judicial proceeding addressing certain asserted grievances and was denied access to existing transcripts and legal papers necessary for a proper presentation of his cause even though the materials were easily accessible within the institution and even though he filed written requests expressly and clearly identifying his critical dependence upon having access to the documents. Assuming the truth of the foregoing, it is evident that defendants were not entitled to judgment as a matter of law and a summary judgment disposition of this claim was clearly improper. Patterson also predicates an abrogation of his Eighth Amendment right to be free of cruel and unusual punishment upon, inter alia, defendants’ denial, without penological justification, of out-of-cell exercise during his 46-day tenure at SPSM. A genuine issue of material fact exists as to whether Patterson was permitted exercise on or after December 20, 1980. Accordingly, summary judgment disposition of this claim was improper. It is generally recognized that a total or near-total deprivation of exercise or recreational opportunity, without penological justification, violates Eighth Amendment guarantees. Inmates require regular exercise to maintain reasonably good physical and psychological health. Ruiz v. Estelle, 679 F.2d 1115, 1152 (5th Cir.1982), citing Campbell v. Cauthron, 623 F.2d 503, 506-07 (8th Cir.1980); Spain v. Procunier, 600 F.2d 189, 199 (9th Cir.1979). See also: Montana v. Commissioners Court, 659 F.2d 19, 22 (5th Cir.1981), cert. denied, 455 U.S. 1026, 102 S.Ct. 1730, 72 L.Ed.2d 147 (1982); Franklin v. State of Oregon, State Welfare Division, 662 F.2d 1337, 1346 (9th Cir.1981); Kirby v. Blackledge, 530 F.2d 583, 587 (4th Cir.1976). Also, adjudication of the Eighth Amendment claim may necessitate development of additional facts not incorporated into the record, such as the size of the cell, opportunity for contact with other inmates, time per day expended outside the cell, justifications for denial of the right to exercise, physical or psychological injuries resulting from a lack of exercise or a particularized need for exercise. See: Ruiz v. Estelle, 679 F.2d 1115, 1152 (5th Cir.1982). A summary judgment disposition of Patterson’s Eighth Amendment claim was clearly improper. The" }, { "docid": "5527057", "title": "", "text": "See Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir.2011); see also McCollum v. Cal. Dep’t of Corr. & Rehab., 647 F.3d 870, 882 (9th Cir.2011) (specific evidence of retaliation required). There is nothing in the record to indicate Nelson even knew about the earlier suit. There is similarly no evidence to show that Ludlow knew about the earlier suit or other evidence suggesting that the claimed harassment by Ludlow was in retaliation for the earlier suit. The district court correctly granted summary judgment against Wood on the retaliation claim. The district court also dismissed Wood’s claims against two other prison officials, Thomason and MacEachern, finding that he failed to exhaust his administrative remedies as required by the Prison Litigation and Reform Act. 42 U.S.C. § 1997e(a). To the extent that Wood is seeking to resurrect claims other than First Amendment Retaliation against these defendants, we affirm the district court’s dismissal. While Wood contends that prison officials prevented him from completing the grievance process, the district court found that he had failed to follow through with his complaints. Nothing in the record indicates that this conclusion was clearly erroneous. Morton v. Hall, 599 F.3d 942, 945 (9th Cir.2010) (“In reviewing a dismissal for failure to exhaust administrative remedies, we review the district court’s legal conclusions de novo and factual findings for clear error.”). AFFIRMED. . The statute reads in relevant part: (a) General rule No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability,, unless the government demonstrates that imposition of the burden on that person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. (b) Scope of application This section applies in any case in which— (1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or (2) the substantial burden affects, or" }, { "docid": "6042964", "title": "", "text": "fair representation claim. We review de novo the district court’s grant of summary judgment. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, — U.S. -, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). A union breaches its duty of fair representation if its conduct is “arbitrary, discriminatory, or in bad faith.” Peters v. Burlington N.R.R., 931 F.2d 534, 538 (9th Cir.1990) (quotations and citations omitted). A union does not breach its duty of fair representation by acting negligently. Id. A union acts arbitrarily only if it shows an “egregious” or “reckless disregard” for the rights of its members. Id. Further, “[w]e have never held that a union has acted in an arbitrary manner where the challenged conduct involved the union’s judgment as to how best to handle a grievance.” Peterson v. Kennedy, 771 F.2d 1244, 1254 (9th Cir.1985). Patterson contends Local 959 breached its duty of fair representation by not sufficiently investigating his grievance. In support of this contention, Patterson argues Local 959 should have presented evidence that other Mat-Maid drivers stopped for coffee breaks to complete paperwork in the same restaurant where Patterson was waiting to speak with the union representative, and these other drivers were not terminated nor were they even disciplined. We reject this argument because the evidence would have been irrelevant. Patterson did not stop at the restaurant to take a coffee break and to complete paperwork. He went to Local 959’s offices and was waiting at the restaurant hoping to speak with a union representative to obtain permission to attend a collective bargaining meeting. Patterson next argues Local 959 breached its duty because it failed to introduce evidence that he suffers from post-traumatic stress disorder. We also reject this argument. Local 959 made a strategic decision not to introduce the evidence. Local 959 explained it decided to focus on the particular incident which gave rise to Patterson’s termination because Patterson insisted he had done nothing wrong and he contended his termination was not warranted. Local 959 determined the medical evidence would have been largely irrelevant to this defense. Local 959" }, { "docid": "6042963", "title": "", "text": "service. Local 959 argues, however, its notice of removal was timely because it was filed within thirty days of March 7, 1994, the date Patterson obtained relief from the automatic stay. We agree. If an automatic stay is in effect at the time the plaintiff files a state court action (which was the situation here), the thirty-day period for removal does not begin to run until relief is obtained from the automatic stay. See Easley v. Pettibone Michigan Corp., 990 F.2d 905, 908-09 (6th Cir.1993). A contrary rule would require a debtor to expend limited resources and to continue to litigate a claim as if no stay were in place. Cf. In re Schwartz, 954 F.2d 569, 571-72 (9th Cir.1992). If a debtor were forced to continue to litigate the claim, the purposes underlying the automatic stay would be thwarted. Id. Thus, the district court did not err in denying Patterson’s motion to remand. B. Duty of Fair Representation Patterson next argues the district court erred by granting Local 959’s summary judgment motion on his fair representation claim. We review de novo the district court’s grant of summary judgment. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, — U.S. -, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). A union breaches its duty of fair representation if its conduct is “arbitrary, discriminatory, or in bad faith.” Peters v. Burlington N.R.R., 931 F.2d 534, 538 (9th Cir.1990) (quotations and citations omitted). A union does not breach its duty of fair representation by acting negligently. Id. A union acts arbitrarily only if it shows an “egregious” or “reckless disregard” for the rights of its members. Id. Further, “[w]e have never held that a union has acted in an arbitrary manner where the challenged conduct involved the union’s judgment as to how best to handle a grievance.” Peterson v. Kennedy, 771 F.2d 1244, 1254 (9th Cir.1985). Patterson contends Local 959 breached its duty of fair representation by not sufficiently investigating his grievance. In support of this contention, Patterson argues Local 959 should have presented evidence that other Mat-Maid" }, { "docid": "7992969", "title": "", "text": "to the merits of the issue, the Prison Litigation Reform Act (“PLRA”) requires inmates to both substantively and procedurally exhaust all claims through administrative avenues before filing a suit in court. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 90-91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). The scope of this requirement depends on the scope of administrative remedies that the state provides. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (“[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.”). In California, inmate grievances must “describe the problem and the action requested.” Cal.Code Reg., tit. 15 § 3084.2. We have said that “when a prison’s grievance procedures do not specify the requisite level of detail” needed to exhaust a claim, the standard enunciated in the Seventh Circuit applies. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir.2009). That standard provides: [w]hen the administrative rulebook is silent, .a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought. As in a notice-pleading system, the grievant need not lay out the facts, articulate legal theories, or demand particular relief. All the grievance need do is object intelligibly to some asserted shortcoming. Strong v. David, 297 F.3d 646, 650 (7th Cir .2002). In recent decisions, we have applied the Strong standard to California prisoner claims. Sapp v. Kimbrell held that a prisoner who alleged that eye problems and denials of his requests for surgery or medical appointments exhausted his claim against a prison doctor, even though the prisoner never specifically identified the doctor in his grievance. 623 F.3d 813 (9th Cir.2010). We reasoned that “Sapp was not required to identify [the doctor] by name to exhaust the grievance against' him. Neither the PLRA itself nor the California regulations require an inmate to identify responsible parties or otherwise to signal who ultimately may be sued.” Id. at 824. Here, El-Shaddai’s grievance gave greater notice than Sapp’s grievances. El-Shaddai described not only the nature of the wrong but also identified Turner by" }, { "docid": "22629144", "title": "", "text": "improve the quality of decision-making in any eventual lawsuit. At the same time, this exception does not alter prisoners’ incentive to pursue administrative remedies to the extent possible. 2 Having recognized an exception to the PLRA’s exhaustion requirement where a prison official renders administrative remedies effectively unavailable by improperly screening a prisoner’s grievances, we must next determine whether Sapp falls within this exception. To fall within this exception, a prisoner must show that he attempted to exhaust his administrative remedies but was thwarted by improper screening. In particular, the inmate must establish (1) that he actually filed a grievance or grievances that, if pursued through all levels of administrative appeals, would have sufficed to exhaust the claim that he seeks to pursue in federal court, and (2) that prison officials screened his grievance or grievances for reasons inconsistent with or unsupported by applicable regulations. A grievance suffices to exhaust a claim if it puts the prison on adequate notice of the problem for which the prisoner seeks redress. To provide adequate notice, the prisoner need only provide the level of detail required by the prison’s regulations. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). The California regulations require only that an inmate “describe the problem and the action requested.” Cal.Code Regs. tit. 15, § 3084.2(a). Where, as here, a prison’s regulations are “incomplete as to the factual specificity [required in an inmate’s grievance], a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir.2009) (internal quotation marks omitted). Sapp pursues three claims against three defendants in this suit. He alleges that Peterson denied him needed medical treatment for his eye condition; that Van Cor denied him an Olson review of his medical records; and that Kimbrell improperly screened his grievances seeking medical care. We conclude that Sapp’s grievances would have sufficed to exhaust only the claim against Peterson. Sapp’s grievances alerted the prison to the nature of his complaint regarding medical treatment for his eye condition. In" }, { "docid": "22071915", "title": "", "text": "and unsafe living conditions in violation of the Eighth Amendment of the United States Constitution. Defendants moved to dismiss for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). The district court granted Defendants’ motion and dismissed the action with prejudice. It held that Griffin had failed to exhaust his administrative remedies, noting that he alleged deliberate indifference to his medical needs in his federal action without having first grieved it to the prison. Griffin filed a Motion to Reconsider, which the district court granted for reasons unrelated to this appeal. The district court then dismissed the action without prejudice, reiterating the reasoning underlying its earlier dismissal. Griffin timely appeals. The district court’s dismissal without prejudice would typically constitute a non-final judgment and preclude appellate review. However, we treat the dismissal as final because Griffin “has no way of curing the defect found by the court: there is no indication he could begin a new administrative process in the prison.” See Butler v. Adams, 397 F.3d 1181, 1183 (9th Cir.2005). A dismissal for failure to exhaust administrative remedies receives “clear error” review of factual issues. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). We review the district court’s legal conclusions de novo. Id. Discussion The Prison Litigation Reform Act requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions. 42 U.S.C. § 1997e(a) (2008); see Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (“Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit.”). Exhaustion must be “proper.” Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). This means that a grievant must use all steps the prison holds out, enabling the prison to reach the merits of the issue. Id. at 90, 126 S.Ct. 2378. Prisoners need comply only with the prison’s own grievance procedures to properly exhaust under the PLRA. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798" }, { "docid": "20198643", "title": "", "text": "we need not decide this issue. Plaintiff also asserts a claim under section 1983 for violation of his First Amendment rights, although he does not state what First Amendment rights were violated, or how they were violated. Presumably, he is complaining about what he considers to be a violation of his First Amendment right to petition the government for redress, when the defendants, acting under color of state law, allegedly retaliated against him for filing his discrimination complaint. (Plaintiff does not identify a violation of his right of free speech). The “right to petition the government for redress of grievances, which is an assurance of a particular freedom of expression, ... is subject to the same constitutional analysis as the right to free speech.” White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir.), cert. denied, 510 U.S. 865, 114 S.Ct. 185, 126 L.Ed.2d 144 (1993) (internal citations and quotations omitted). The Second Circuit has recognized that there are circumstances when complaints of system-wide employment discrimination may implicate matters of public concern, such that they would constitute speech protected by the First Amendment. See Saulpaugh, 4 F.3d at 143; Quinn, 53 F.Supp.2d at 361. However, plaintiffs single, conclusory allegation of a violation of his First Amendment rights is not sufficient to state a claim under section 1983. II. Failure to Obtain a Right to Sue Letter Defendant Commission next argues that the complaint does not contain a right to sue letter with respect to plaintiffs Title VII claims, such that there has been a failure to exhaust administrative remedies. Plaintiff concedes that through oversight he failed to attach to the complaint a copy of his Title VII right to sue letter, but he has attached it to his Opposition Memorandum. That moots this issue and we decline to dismiss plaintiffs Title VII claims on this basis. III. Eleventh Amendment Immunity Defendant’s next asserted ground for dismissing plaintiffs complaint is based upon Eleventh Amendment immunity. Under the Eleventh Amendment, States enjoy an immunity from suit in federal court by all private parties for all causes of action, including suits" }, { "docid": "2484309", "title": "", "text": "SNEED, Circuit Judge. Max Lopez (“Lopez”), a California state prisoner, appeals pro se the district court’s grant of summary judgment and dismissal of his claims under 42 U.S.C. § 1983. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm. I. FACTUAL AND PROCEDURAL BACKGROUND On October 30, 1995, Lopez filed a Complaint in forma pauperis in the Eastern District of California, alleging that defendants Warden G.A. Smith, Chief Medical Officer Dr. Larry Loo, Chief Dental Officer Acevedo, Dr. Tierney, Counselor Patterson and Appeals Coordinator McClure (collectively “defendants”) violated his civil rights protected by 42 U.S.C. § 1983. Lopez alleged that defendants: (1) knowingly placed him in a cell with a dangerous inmate who subsequently injured him; (2) provided inadequate medical care; (3) denied him outdoor exercise; (4) denied him a blanket and pillow in his cell; and (5) improperly placed him in the Security Housing Unit (“SHU”). On December 11, 1996, defendants filed a motion to dismiss and for summary judgment and Lopez filed a cross-motion for summary judgment. On May 27, 1997, the Magistrate Judge issued findings and recommendations in which he dismissed Lopez’ claims that defendants knowingly housed him in a cell with a dangerous inmate and improperly placed him in the SHU, granted defendants’ motion for summary judgment on the remaining claims and denied Lopez’ cross motion for summary judgment. On September 18, 1997, the district court adopted the Magistrate Judge’s findings and recommendations. Lopez filed a timely notice of appeal on October 6,1997. II. STANDARD OF REVIEW This court reviews de novo both the district court’s dismissal of an action pursuant to Federal Rule of Civil Procedure 12(b)(6) and grant of summary judgment. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995) (summary judgment); Barnett v. Centoni 31 F.3d 813, 816 (9th Cir.1994) (per curiam) (dismissal). III. DISCUSSION A. Dismissal of Lopez’ Claim of Deliberate Indifference to a Serious Risk to his Safety. Lopez contends that the district court erred in dismissing his claim that prison officials violated the Eighth Amendment by placing him in a cell with a dangerous inmate" }, { "docid": "1243874", "title": "", "text": "Opinion for the Court filed by Senior Circuit Judge WILLIAMS. WILLIAMS, Senior Circuit Judge: Harvey L. Patterson claims that his immediate supervisor engaged in unlawful racial discrimination against him through her various interventions into Patterson’s management of his division at the Environmental Protection Agency (“EPA”). He also claims that his later transfer to another position within the EPA amounted to unlawful retaliation directed against his filing and pursuit of a discrimination complaint before the EPA’s Office of Civil Rights. The district court granted summary judgment for the defendant. We affirm. Beginning in 1998, Patterson, an African-American, served as Director of the Superfund/RCRA Regional Procurement Operations Division (“SRRPOD”) and as a member of the EPA’s Senior Executive Service (“SES”). SRRPOD is a division of the Office of Acquisition Management (“OAM”), which itself is within the Office of Administration and Resources Management (“OARM”). During the summer of 2000, Judy S. Davis, a Caucasian, became Patterson’s immediate supervisor upon her promotion to Acting Director of OAM (a promotion made permanent the following year). Patterson alleges that trouble between him and Davis began almost immediately and that their relationship suffered from serious differences in management philosophy. The disparate treatment that Patterson alleges depends entirely on actions by Davis as his superior; those actions, and more broadly the interaction between him and Davis, also form the background for the allegedly retaliatory transfer. We address the allegations of disparate treatment first, then those of retaliation. Discrimination claims. These need not detain us long. As a threshold matter, Patterson first contacted an EEO counsel- or on February 28, 2002. His claims that are based on alleged actions taken more than 45 days earlier were not properly exhausted, see 29 C.F.R. § 1614.105(a)(1); see also Broderick v. Donaldson, 437 F.3d 1226, 1232 (D.C.Cir.2006), so summary judgment as to those claims was clearly correct. Patterson’s remaining discrimination claims rest on evidence that Davis: (1) vetoed his hiring of clerical staff on February 25, 2002, thus usurping what he believed to be his prerogative (although she reversed that decision two days later); (2) detailed two employees out of SRRPOD in" }, { "docid": "22629145", "title": "", "text": "only provide the level of detail required by the prison’s regulations. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). The California regulations require only that an inmate “describe the problem and the action requested.” Cal.Code Regs. tit. 15, § 3084.2(a). Where, as here, a prison’s regulations are “incomplete as to the factual specificity [required in an inmate’s grievance], a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought.” Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir.2009) (internal quotation marks omitted). Sapp pursues three claims against three defendants in this suit. He alleges that Peterson denied him needed medical treatment for his eye condition; that Van Cor denied him an Olson review of his medical records; and that Kimbrell improperly screened his grievances seeking medical care. We conclude that Sapp’s grievances would have sufficed to exhaust only the claim against Peterson. Sapp’s grievances alerted the prison to the nature of his complaint regarding medical treatment for his eye condition. In his grievances, Sapp explained that he was having trouble getting medical treatment and that he may have developed an eye infection, and he requested eyelid surgery and a follow-up appointment with a doctor at UC Davis. Further, contrary to the district court’s conclusion, Sapp was not required to identify Peterson by name to exhaust the grievance against him. Neither the PLRA itself nor the California regulations require an inmate to identify responsible parties or otherwise to signal who ultimately may be sued. See Jones, 549 U.S. at 217, 127 S.Ct. 910 (“[N]othing in the [PLRA] imposes a ‘name all defendants’ requirement.”). Sapp’s grievances therefore would have sufficed to exhaust his claim against Peterson for the denial of adequate medical treatment. By contrast, no grievance that was screened — properly or improperly — would have sufficed to exhaust Sapp’s claim against Van Cor for failing to give him an Olson review of his medical records. The grievances that Sapp alleges were improperly screened did not mention the denial of an Olson review at all. Although Sapp" }, { "docid": "7779475", "title": "", "text": "appellees violated his Eighth Amendment right to be free of cruel and unusual punishment by using excessive force against him and being deliberately indifferent to his medical needs. Appellees moved the district court to dismiss Miller’s complaint, as amended, for failure to allege a constitutional violation. The district court denied their motion. After filing an answer, appellees filed a motion, styled “Defendants’ Motion to Dismiss and Motion for Summary Judgment,” in which they argued that appellant failed to exhaust his administrative remedies before bringing suit. Appellees contended that Miller failed to exhaust his administrative remedies, as required by 42 U.S.C. § 1997e(a), because he did not sign and date the grievance form. On August 28, 1998, the district court granted appellees’ motion and dismissed Miller’s case without prejudice. The court found that Miller failed to exhaust his administrative remedies because he did not follow the GDC’s grievance procedures, which required that he sign and date his grievance form. This appeal followed. II. We review de novo dismissals for failure to exhaust administrative remedies under section 1997e(a). See Alexander v. Hawk, 159 F.3d 1321, 1323 (11th Cir.1998). Prison inmates have a constitutional right of access to the courts. See Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 2180, 135 L.Ed.2d 606 (1996) (stating that prisoners must be afforded “a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts”) (internal quotation marks omitted). Section 1997e(a) sets forth the procedures prisoners must follow in exercising their fundamental right of access to the courts. Under this provision, prisoners must exhaust any administrative remedies available to them before filing a suit in federal court based on violations of constitutional rights. Specifically, section 1997e(a) provides that: [n]o action shall be brought with respect to prison conditions under Section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). An inmate incarcerated in a state prison, thus, must first comply with the grievance procedures established by" }, { "docid": "22071916", "title": "", "text": "1183 (9th Cir.2005). A dismissal for failure to exhaust administrative remedies receives “clear error” review of factual issues. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003). We review the district court’s legal conclusions de novo. Id. Discussion The Prison Litigation Reform Act requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions. 42 U.S.C. § 1997e(a) (2008); see Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (“Even when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit.”). Exhaustion must be “proper.” Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). This means that a grievant must use all steps the prison holds out, enabling the prison to reach the merits of the issue. Id. at 90, 126 S.Ct. 2378. Prisoners need comply only with the prison’s own grievance procedures to properly exhaust under the PLRA. Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Griffin properly appealed his grievance through all steps that the Maricopa County jail held out. He filed an Inmate Grievance Form and completed the prison’s appeals process. Defendants assert that Griffin nonetheless failed to exhaust properly. Griffin did not grieve that prison staff members were deliberately indifferent to his medical needs, an allegation that now forms the primary component of his Eighth Amendment claim. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Defendants contend that, without this allegation, the grievance was not factually specific enough to satisfy the PLRA’s exhaustion requirement. Griffin asserts that his grievance alleged every fact necessary for proper exhaustion. I. Appropriate Standard of Factual Specificity The Supreme Court held in Jones v. Bock that a prison’s own grievance process, not the PLRA, determines how detailed a grievance must be to satisfy the PLRA exhaustion requirement. 549 U.S. at 218,127 S.Ct. 910. The Maricopa County jail’s procedures, however, provide little guidance as to what facts a grievance must include. The jail’s Inmate Grievance Form" }, { "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": "17545527", "title": "", "text": "v. Maryland, 378 U. S. 226, 228 (1964) . The Court’s failure to do so presumably rests on the New York court’s footnote in its later opinion stating that, in its view, the transactional immunity granted by the New York statute would not affect petitioner’s conviction. But if petitioner’s conviction is indeed regarded as final under New York law, then the constitutional issue is posed without regard to New York law for the reasons stated in the text. E. g., Gardner v. Broderick, 392 U. S. 273 (1968); Uniformed Sanitation Men Assn. v. Commissioner of Sanitation, 392 U. S. 280 (1968); Malloy v. Hogan, 378 U. S. 1 (1964); Murphy v. Waterfront Comm’n, 378 U. S. 52 (1964); Ullmann v. United States, 350 U. S. 422 (1956); Hoffman v. United States, 341 U. S.479 (1951); United States v. Murdock, 284 U. S. 141 (1931); McCarthy v. Arndstein, 266 U. S. 34 (1924); Hale v. Henkel, 201 U. S. 43 (1906); Ballmann V. Fagin, 200 U. S. 186 (1906); Jack v. Kansas, 199 U. S. 372 (1905); Brown v. Walker, 161 U. S. 591 (1896); Counselman v. Hitchcock, 142 U. S. 547 (1892). But see, e. g., Adams v. Maryland, 347 U. S. 179 (1954); Smith v. United States, 337 U. S. 137 (1949); Feldman v. United States, 322 U. S. 487 (1944); Heike v. United States, 227 U. S. 131 (1913). Not only do the parties disagree on. the extent of the' federal constitutional protection, but both parties also see a decision on that sharply disputed question as necessary.to a decision of this, case: . Counsel for respondent: “[I]f transactional immunity is required by the federal Constitution, then the decision of the Court of Appeals that this was or wasn’t a thing as specified in the New York State statute, is a matter of federal importance, and it is to be decided by a uniform standard. “On the other hand, if the only thing that the Constitution requires is a use plus fruits immunity,- then when New York decided whether this crime, this bribery was one of the things testified" } ]

[ { "docid": "22637018", "title": "", "text": "Me. Justice Fortas delivered the opinion of the Court. Appellant brought this action in the Supreme Court of the State of New York seeking reinstatement as a New York City patrolman and back pay. He claimed he was unlawfully dismissed because he refused to waive his privilege against self-incrimination. In August 1965, pursuant to subpoena, appellant appeared before a New York County grand jury which was investigating alleged bribery and corruption of police officers in connection with unlawful gambling operations. He was advised that the grand jury proposed to examine him concerning the performance of his official duties. He was advised of his privilege against self-incrimination, but he was asked to sign a “waiver of immunity” after being told that he would be fired if he did not sign. Following his refusal, he was given an administrative hearing and was discharged solely for this refusal, pursuant to § 1123 of the New York City Charter. The New York Supreme Court dismissed his petition for reinstatement, 27 App. Div. 2d 800, 279 N. Y. S. 2d 150 (1967), and the New York Court of Appeals affirmed. 20 N. Y. 2d 227, 229 N. E. 2d 184 (1967). We noted probable jurisdiction. 390 U. S. 918 (1968). Our decisions establish beyond dispute the breadth of the privilege to refuse to respond to questions when the result may be self-incriminatory, and the need fully to implement its guaranty. See Spevack v. Klein, 385 U. S. 511 (1967); Counselman v. Hitchcock, 142 U. S. 547, 585-586 (1892); Albertson v. SACB, 382 U. S. 70, 80 (1965). The privilege is applicable to state as well as federal proceedings. Malloy v. Hogan, 378 U. S. 1 (1964); Murphy v. Waterfront Commission, 378 U. S. 52 (1964). The privilege may be waived in appropriate circumstances if the waiver is knowingly and voluntarily made. Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying. Counselman v. Hitchcock, supra, at 585-586; Murphy v. Waterfront Commission," }, { "docid": "22672513", "title": "", "text": "give up his guar antee against self-incrimination contained in the Fifth Amendment are so well known, see Ullmann v. United States, 350 U. S. 422, 440 (dissenting), and Piccirillo v. New York, 400 U. S. 548, 549 (dissenting), that I need not write at length. In Counselman v. Hitchcock, 142 U. S. 547, 586, the Court adopted the transactional immunity test: “In view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates.” Id., at 586. In Brown v. Walker, 161 U. S. 591, a ease involving another federal prosecution, the immunity statute provided that the witness would be protected “on account of any transaction . . . concerning which he may testify.” Id., at 594. The Court held that the immunity offered was coterminous with the privilege and that the witness could therefore be compelled to testify, a ruling that made “transactional immunity” part of the fabric of our constitutional law. Ullmann v. United States, supra, at 438. This Court, however, apparently believes that Counsel-man and its progeny were overruled sub silentio in Murphy v. Waterfront Comm’n, 378 U. S. 52. Murphy involved state witnesses, granted transactional immunity under state law, who refused to testify for fear of subsequent federal prosecution. We held that the testimony in question could be compelled, but that the Federal Government would be barred from using any of the testimony, or its fruits, in a subsequent federal prosecution. Murphy overruled, not Counselman, but Feldman v. United States, 322 U. S. 487, which had held “that one jurisdiction within our federal structure may compel a witness to give testimony which could be used to convict him of a crime in another jurisdiction.” Murphy v. Waterfront Comm’n, supra, at 77. But Counselman, as the Murphy Court recognized, “said nothing about the problem of incrimination under the law of another sovereign.” Id., at 72. That problem is one of federalism, as to require transactional immunity between jurisdictions might “deprive a state of the right to prosecute a violation of its criminal law" }, { "docid": "22627370", "title": "", "text": "the court’s opinion in United States v. Barsky, 72 F. Supp. 165 (1947), affirmed, Barsky v. United States, 83 U. S. App. D. C. 127, 138, 167 F. 2d 241, 252 (1948). R. S. § 859, as originally enacted in 1857, was a part of § 2 of a comprehensive statute, 11 Stat. 155, designed on the one hand to compel the testimony of witnesses and on the other hand to pro fect them from prosecution for crimes revealed by their testimony. Section 1 of the Act became R. S. § 102, 2 U. S. C. § 192. As first enacted, § 2 not only prevented the use of a witness’ testimony in subsequent criminal proceedings but gave him complete immunity from prosecution “for any fact or act touching which he shall be required to testify.” This latter provision was deleted in 1862, 12 Stat. 333, leaving only the partial protection of § 859, which was in effect declared insufficient to require a witness to give self-incriminatory testimony in Counselman v. Hitchcock, 142 U. S. 547 (1892). R. S. § 860 applied to evidence obtained from a party or witness in any “judicial proceeding” and provided that such evidence should not be used against such person in any criminal proceeding. See Brown v. Walker, 161 U. S. 591 (1896). H. R. Rep. No. 266, 61st Cong., 2d Sess., which was concurred in by the Senate Committee reporting the repealer, states: “This section [860] was enacted apparently for the purpose of enabling the Government to compel the disclosure of incriminating testimony on condition that the witness disclosing the same would be given immunity. In the case of Counselman v. Hitchcock (142 U. S., 547) it was held that legislation can not abridge a constitutional privilege, and that it can not replace or supply one, at least unless it is so broad as to have the same extent in scope and effect, and that said section 860 of the Revised Statutes does not supply a complete protection from all the perils against which the constitutional prohibition was designed to guard, and is" }, { "docid": "22672508", "title": "", "text": "testify, or produce evidence 161 U. S., at 594; 201 U. S., at 66. The same is true of Smith v. United States, 337 U. S. 137, 141, 146 (1949), and United States v. Monia, 317 U. S. 424, 425, 428 (1943). In Albertson v. Subversive Activities Control Board, 382 U. S. 70 (1965), some of the Counselman language urged upon us by petitioners was again quoted. But Albertson, like Counselman, involved an immunity statute that was held insufficient for failure to prohibit the use of evidence derived from compelled admissions and the use of compelled admissions as an “investigatory lead.” Id., at 80. In Adams v. Maryland, 347 U. S. 179, 182 (1954), and in United States v. Murdock, 284 U. S. 141, 149 (1931), the Counselman dictum was referred to as the principle of Counselman. The references were in the context of ancillary points not essential to the decisions of the Court. The Adams Court did note, however, that the Fifth Amendment privilege prohibits the “use” of compelled self-incriminatory testimony. 347 U. S., at 181. In any event, the Court in Ullmann v. United States, 350 U. S., at 436-437, recognized that the rationale of Counselman was that the Counselman statute was insufficient for failure to prohibit the use of evidence derived from compelled testimony. See also Arndstein v. McCarthy, 254 U. S., at 73. The Waterfront Commission of New York Harbor is a bistate body established under an interstate compact approved by Congress. 67 Stat. 541. In re Waterfront Comm’n of N. Y. Harbor, 39 N. J. 436, 189 A. 2d 36 (1963). Reconsideration of the rule that the Fifth Amendment privilege does not protect a witness in one jurisdiction against being compelled to give testimony that could be used to convict him in another jurisdiction was made necessary by the decision in Malloy v. Hogan, 378 U. S. 1 (1964), in which the Court held the Fifth Amendment privilege applicable to the States through the Fourteenth Amendment. Murphy v. Waterfront Comm’n, 378 U. S., at 57. At this point the Court added the following note: “Once" }, { "docid": "22672510", "title": "", "text": "a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.” Id., at 79 n. 18. If transactional immunity had been deemed to be the “constitutional rule” there could be no federal prosecution. See, e. g., California v. Byers, 402 U. S. 424, 442 n. 3 (1971) (Harlan, J., concurring in judgment); United States v. Freed, 401 U. S. 601, 606 n. 11 (1971); Piccirillo v. New York, 400 U. S. 548 (1971); Stevens v. Marks, 383 U. S. 234, 24<R245 (1966). E. g., Murphy v. Waterfront Comm’n, swpra; Ullmann v. United States, supra; Smith v. United States, 337 IT. S. 137 (1949); United States v. Monia, 317 U. S. 424 (1943); Hale v. Henkel, 201 IT. S. 43 (1906); Jack v. Kansas, 199 U. S. 372 (1905); Brown v. Walker, 161 IT. S. 591 (1896). See also n. 35, supra. E. g., Albertson v. Subversive Activities Control Board, 382 IT. S., at 80; Arndstein v. McCarthy, 254 IT. S., at 73. In Malloy v. Hogan, 378 IT. S., at 10-11, the Court held that the same standards would determine the extent or scope of the privilege in state and in federal proceedings, because the same substantive guarantee of the Bill of Rights is involved. The Murphy Court emphasized that the scope of the privilege is the same in state and in federal proceedings. Murphy v. Waterfront Comm’n, 378 U. S., at 79. Ibid. As the Court noted in Gardner v. Broderick, 392 U. S., at 276, “[a]nswers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying.” See, e. g., Albertson v. Subversive Activities Control Board, 382 U. S., at 80. See Murphy v. Waterfront Comm’n, 378 U. S., at 102-104 (White, J., concurring). Adams v. Maryland, 347 U. S.," }, { "docid": "22104084", "title": "", "text": "(1892), this Court held that immunity of this type could not be used to compel a witness to testify against himself, because it did not provide protection coextensive with the Fifth Amendment. The Counselman Court reasoned that the statute “protected [the witness] against the use of his testimony against him ... in any criminal proceeding, in a court of the United States. But it had only that effect. It could not, and would not, prevent the use of his testimony to search out other testimony to be used in evidence against him .... It could not prevent the obtaining and the use of witnesses and evidence which should be attributable directly to the testimony he might give under compulsion, and on which he might be convicted, when otherwise, and if he had refused to answer, he could not possibly have been convicted.” Id., at 564. In concluding, the Court stated that “no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the Constitution of the United States.” Id., at 585. Due to this latter statement in the Counselman opinion, Congress and the lower courts assumed that only a broad “transaction” immunity would satisfy the requirements of the Fifth Amendment. Thus, beginning in 1893, Congress enacted a series of statutes giving a witness complete immunity from prosecution for any crime divulged in compelled testimony. This reliance on transaction immunity continued until 1970, when Congress enacted § 6002 as part of the Organized Crime Control Act of 1970, Pub. L. 91-452, 84 Stat. 927. In the meantime, however, the Court decided several cases suggesting that some forms of use immunity would be constitutionally permissible. In Murphy v. Waterfront Comm’n, 378 U. S. 52 (1964), the Court held that a state witness could not be compelled to give testimony that could be incriminating under federal law “unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him.” Id., at 79." }, { "docid": "22672511", "title": "", "text": "35, supra. E. g., Albertson v. Subversive Activities Control Board, 382 IT. S., at 80; Arndstein v. McCarthy, 254 IT. S., at 73. In Malloy v. Hogan, 378 IT. S., at 10-11, the Court held that the same standards would determine the extent or scope of the privilege in state and in federal proceedings, because the same substantive guarantee of the Bill of Rights is involved. The Murphy Court emphasized that the scope of the privilege is the same in state and in federal proceedings. Murphy v. Waterfront Comm’n, 378 U. S., at 79. Ibid. As the Court noted in Gardner v. Broderick, 392 U. S., at 276, “[a]nswers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying.” See, e. g., Albertson v. Subversive Activities Control Board, 382 U. S., at 80. See Murphy v. Waterfront Comm’n, 378 U. S., at 102-104 (White, J., concurring). Adams v. Maryland, 347 U. S., at 181; Bram v. United States, 168 U. S. 632, 542 (1897). As Mr. Justice White, concurring in Murphy, pointed out: “A coerced confession is as revealing of leads as testimony given in exchange for immunity and indeed is excluded in part because it is compelled incrimination in violation of the privilege. Malloy v. Hogan, [378 U. S. 1, 7-8]; Spano v. New York, 360 U. S. 315; Bram v. United States, 168 U. S. 532.” 378 U. S., at 103. Jackson v. Denno, 378 U. S. 368 (1964). See supra, at 460; Brief for the United States 37; Cf. Chapman v. Calijornia, 386 U. S. 18 (1967). Jackson v. Denno, supra. Mr. Justice Douglas, dissenting. The Self-Incrimination Clause says: “No person . . . shall be compelled in any criminal case to be a witness against himself.” I see no answer to the proposition that he is such a witness when only “use” immunity is granted. My views on the question of the scope of immunity that is necessary to force a witness to" }, { "docid": "22104085", "title": "", "text": "of supplanting the privilege conferred by the Constitution of the United States.” Id., at 585. Due to this latter statement in the Counselman opinion, Congress and the lower courts assumed that only a broad “transaction” immunity would satisfy the requirements of the Fifth Amendment. Thus, beginning in 1893, Congress enacted a series of statutes giving a witness complete immunity from prosecution for any crime divulged in compelled testimony. This reliance on transaction immunity continued until 1970, when Congress enacted § 6002 as part of the Organized Crime Control Act of 1970, Pub. L. 91-452, 84 Stat. 927. In the meantime, however, the Court decided several cases suggesting that some forms of use immunity would be constitutionally permissible. In Murphy v. Waterfront Comm’n, 378 U. S. 52 (1964), the Court held that a state witness could not be compelled to give testimony that could be incriminating under federal law “unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him.” Id., at 79. In a footnote, the Court added that once a defendant had been immunized in a state proceeding, “the federal authori ties have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.” Id., at 79, n. 18. Several years later, in Gardner v. Broderick, 392 U. S. 273, 276 (1968), the Court stated that “[a]nswers may be compelled regardless of the [Fifth Amendment] privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying.” And shortly thereafter, in People v. La Bello, 24 N. Y. 2d 598, 602, 249 N. E. 2d 412, 414 (1969), the New York Court of Appeals interpreted Murphy and Gardner to hold that Counselman did not bar use immunity statutes, so long as they protected the immunized witness “from the use of his testimony or the fruits thereof.” B It was in this context that Congress in 1969 began considering a" }, { "docid": "22067478", "title": "", "text": "has been a privilege to disregard the duty to which a subpoena calls. And when Congress turned to the device of immunity legislation, therefore, it did not provide a “substitute” for the performance of the universal duty to appear as a witness— it did not undertake to give something for nothing. It was the refusal to give incriminating testimony for which Congress bargained, and not the refusal to give any testimony. And it was only in exchange for self-incriminating testimony which “otherwise could not be got” (Heike v. United States, 227 U. S. 131, 142) because of the witness’s invocation of his constitutional rights that Congress conferred immunity against the use of such testimony. Instead of giving more than the constitutional equivalent for the privilege against self-incrimination, Congress for a long time did not give enough. See Counselman v. Hitchcock, 142 U. S. 547, invalidating the Act of February 25, 1868, 15 Stat. 37, It. S. § 860, the first immunity statute relating to judicial proceedings. In order to remove the gap between-what this Act gave and what the Constitution was construed to require, Congress promptly passed the Act of February 11, 1893, 27 Stat. 443, in order not to interrupt the effective enforcement of the Interstate Commerce Act. As the debates reveal, Congress acted on its understanding of what this Court in the Counsel-man decision indicated was an adequate legislative alternative. See remarks of Senator Cullom, July 18, 1892, 23 Cong. Rec. 6333. The 1893 Act followed the language of the Act of January 24, 1857, by providing that “no person shall be excused from attending and testifying or from producing books . . .” 27 Stat. 443 (italics added). And in 1896 this Court, in Brown v. Walker, 161 U. S. 591, 595, found that the 1893 Act “sufficiently satisfies the constitutional guarantee of protection.” There was no indication of any belief that Congress had given anything more than it had to give — and, indeed, only a bare majority of the Court thought that the statute had given as much as the Constitution required. Certainly until the" }, { "docid": "22058155", "title": "", "text": "criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.” (Emphasis added.) The statute thus makes no distinction between truthful and untruthful statements made during the course of the immunized testimony. Rather, it creates a blanket exemption from the bar against the use of immunized testimony in cases in which the witness is subsequently prosecuted for making false statements. The legislative history of § 6002 shows that Congress intended the perjury and false-declarations exception to be interpreted as broadly as constitutionally permissible. The present statute was enacted as a part of the Organized Crime Control Act of 1970, after a re-examination of the broad transactional immunity statute enacted in response to this Court’s decision in Counselman v. Hitchcock, 142 U. S. 547 (1892). See Hostigar v. United States, 406 U. S. 441, 452, and n. 36 (1972). Its design was not only to bring about uniformity in the operation of immunity grants within the federal system, but also to restrict the grant of immunity to that required by the United States Constitution. Thus, the statute derives from a 1969 report of the National Commission on the Reform of the Federal Criminal Laws, which proposed a general use immunity statute under which “the immunity conferred would be confined to the scope required by the Fifth Amendment.” And as stated in both the Senate and House Reports on the proposed legislation: “This statutory immunity is intended to be as broad as, but no broader than, the privilege against self-incrimination. ... It is designed to reflect the use-restriction immunity concept of Murphy v. Waterfront Commission, 378 U. S. 52 (1964) rather [than] the transaction immunity concept of Counselman v. Hitchcock, 142 U. S. 547 (1892).” In light of the language and legislative history of § 6002, the conclusion is inescapable that Congress intended to permit the use of both truthful and false statements made during the course of immunized testimony if such use was not prohibited by the Fifth Amendment. Ill The limitation placed on the use of relevant evidence by the Court of" }, { "docid": "22698146", "title": "", "text": "applicable here, that all evidence derived solely from statements made without full Miranda warnings be excluded at a subsequent criminal trial. For purposes of analysis in this case we believe that the question thus presented is best examined in two separate parts. We will therefore first consider whether the police conduct complained of directly infringed upon respondent’s right against compulsory self-incrimination or whether it instead violated only the prophylactic rules developed to protect that right. We will then consider whether the evidence derived from this interrogation must be excluded. Ill The history of the Fifth Amendment right against compulsory self-incrimination, and the evils against which it was directed, have received considerable attention in the opinions of this Court. See, e. g., Kastigar v. United States, 406 U. S. 441 (1972); Miranda v. Arizona, supra; Murphy v. Waterfront Comm’n, 378 U. S. 52 (1964); Ullmann v. United States, 350 U. S. 422, 426 (1956); Counselman v. Hitchcock, 142 U. S. 547 (1892). At this point in our history virtually every schoolboy is familiar with the concept, if not the language, of the provision that reads: “No person . . . shall be compelled in any criminal case to be a witness against himself . ...” This Court’s decisions have referred to the right as “the mainstay of our adversary system of criminal justice,” Johnson v. New Jersey, supra, at 729, and as “ ‘one of the great landmarks in man’s struggle to make himself civilized.’ ” Ullmann, supra, at 426. It is not surprising that the constitution of virtually every State has a comparable provision. 8 J. Wigmore, Evidence § 2252 (McNaughton rev. 1961) (hereinafter Wigmore). The importance of a right does not, by itself, determine its scope, and therefore we must continue to hark back to the historical origins of the privilege, particularly the evils at which it was to strike. The privilege against compulsory self-incrimination was developed by painful opposition to a course of ecclesiastical inquisitions and Star Chamber proceedings occurring several centuries ago. See L. Levy, Origins of the Fifth Amendment (1968); Morgan, The Privilege Against Self-Incrimination, 34" }, { "docid": "22637019", "title": "", "text": "150 (1967), and the New York Court of Appeals affirmed. 20 N. Y. 2d 227, 229 N. E. 2d 184 (1967). We noted probable jurisdiction. 390 U. S. 918 (1968). Our decisions establish beyond dispute the breadth of the privilege to refuse to respond to questions when the result may be self-incriminatory, and the need fully to implement its guaranty. See Spevack v. Klein, 385 U. S. 511 (1967); Counselman v. Hitchcock, 142 U. S. 547, 585-586 (1892); Albertson v. SACB, 382 U. S. 70, 80 (1965). The privilege is applicable to state as well as federal proceedings. Malloy v. Hogan, 378 U. S. 1 (1964); Murphy v. Waterfront Commission, 378 U. S. 52 (1964). The privilege may be waived in appropriate circumstances if the waiver is knowingly and voluntarily made. Answers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying. Counselman v. Hitchcock, supra, at 585-586; Murphy v. Waterfront Commission, supra, at 79. The question presented in the present case is whether a policeman who refuses to waive the protections which the privilege gives him may be dismissed from office because of that refusal. About a year and a half after New York City discharged petitioner for his refusal to waive this immunity, we decided Garrity v. New Jersey, 385 U. S. 493 (1967). In that case, we held that when a policeman had been compelled to testify by the threat that otherwise he would be removed from office, the testimony that he gave could not be used against him in a subsequent prosecution. Garrity had not signed a waiver of immunity and no immunity statute was applicable in the circumstances. Our holding was summarized in the following statement (at 500): “We now hold the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of" }, { "docid": "22672509", "title": "", "text": "at 181. In any event, the Court in Ullmann v. United States, 350 U. S., at 436-437, recognized that the rationale of Counselman was that the Counselman statute was insufficient for failure to prohibit the use of evidence derived from compelled testimony. See also Arndstein v. McCarthy, 254 U. S., at 73. The Waterfront Commission of New York Harbor is a bistate body established under an interstate compact approved by Congress. 67 Stat. 541. In re Waterfront Comm’n of N. Y. Harbor, 39 N. J. 436, 189 A. 2d 36 (1963). Reconsideration of the rule that the Fifth Amendment privilege does not protect a witness in one jurisdiction against being compelled to give testimony that could be used to convict him in another jurisdiction was made necessary by the decision in Malloy v. Hogan, 378 U. S. 1 (1964), in which the Court held the Fifth Amendment privilege applicable to the States through the Fourteenth Amendment. Murphy v. Waterfront Comm’n, 378 U. S., at 57. At this point the Court added the following note: “Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.” Id., at 79 n. 18. If transactional immunity had been deemed to be the “constitutional rule” there could be no federal prosecution. See, e. g., California v. Byers, 402 U. S. 424, 442 n. 3 (1971) (Harlan, J., concurring in judgment); United States v. Freed, 401 U. S. 601, 606 n. 11 (1971); Piccirillo v. New York, 400 U. S. 548 (1971); Stevens v. Marks, 383 U. S. 234, 24<R245 (1966). E. g., Murphy v. Waterfront Comm’n, swpra; Ullmann v. United States, supra; Smith v. United States, 337 IT. S. 137 (1949); United States v. Monia, 317 U. S. 424 (1943); Hale v. Henkel, 201 IT. S. 43 (1906); Jack v. Kansas, 199 U. S. 372 (1905); Brown v. Walker, 161 IT. S. 591 (1896). See also n." }, { "docid": "22672504", "title": "", "text": "610. This statement was made with specific reference to the Compulsory Testimony Act of 1893, 27 Stat. 443, the model for almost all federal immunity statutes prior to the enactment of the statute under consideration in this case. See Murphy v. Waterfront Comm’n, 378 U. S., at 95 (White, J., concurring). Accord, Gardner v. Broderick, 392 U. S., at 276; Murphy v. Waterfront Comm’n, supra; McCarthy v. Arndstein, 266 U. S., at 42 (Brandéis, J.); Heilce v. United States, 227 U. S. 131, 142 (1913) (Holmes, J.). Eor other provisions of the 1970 Act relative to immunity of witnesses, see 18 U. S. C. §§ 6001-6005. See, e. g., Murphy v. Waterfront Comm’n, supra, at 54, 78; Counselman v. Hitchcock, 142 U. S. 547, 585 (1892). See Piccirillo v. New York, 400 U. S. 548 (1971). 15 Stat. 37. See Counselman v. Hitchcock, supra, at 560. In re Counselman, 44 F. 268 (CCND Ill. 1890). Counselman v. Hitchcock, supra, at 564. Precisely, the Court held “that legislation cannot abridge a constitutional privilege, and that it cannot replace or supply [sic] one, at least unless it is so broad as to have the same extent in scope and effect.” Id,., at 585. See Murphy v. Waterfront Comm’n, supra, at 54, 78. Counselman was decided Jan. 11, 1892. Senator Cullom introduced the new bill on Jan. 27, 1892. 23 Cong. Rec. 573. 23 Cong. Rec. 6333. Act of Feb. 11, 1893, 27 Stat. 443, repealed by the Organized Crime Control Act of 1970, Pub. L. No. 91-452, § 245, 84 Stat. 931. See the remarks of Senator Cullom, 23 Cong. Rec. 573, 6333, and Congressman Wise, who introduced the bill in the House. 24 Cong. Rec. 503. See Shapiro v. United States, 335 U. S. 1, 28-29 and n. 36 (1948). Ullmann v. United States, 350 U. S., at 438; Shapiro v. United States, supra, at 6. There was one minor exception. See Piccirillo v. New York, 400 U. S., at 571 and n. 11 (Brennan, J., dissenting); Arndstein v. McCarthy, 254 U. S. 71, 73 (1920). The statute is a product" }, { "docid": "22672503", "title": "", "text": "13, supra, 72 Yale L. J., at 1571. See 8 Wigmore, supra, n. 2, § 2281, at 492. Mr. Justice White noted in his concurring opinion in Murphy v. Waterfront Comm’n, 378 U. S., at 92, that immunity statutes “have for more than a century been resorted to for the investigation of many offenses, chiefly those whose proof and punishment were otherwise impracticable, such as political bribery, extortion, gambling, consumer frauds, liquor violations, commercial larceny, and various forms of racketeering.” Id., at 94-95. See n. 14, supra. See Comment, n. 13, supra, 72 Yale L. J., at 1576. For a listing of these statutes, see National Commission on Reform of Federal Criminal Laws, Working Papers, 1444-1445 (1970). For a listing of these statutes, see 8 Wigmore, supra, n. 2, § 2281, at 495 n. 11. See, e. g., 8 J. Wigmore, Evidence § 2281, at 501 (3d ed. 1940); 8 Wigmore, supra, n. 2, § 2281, at 496. See Hale v. Henkel, 201 U. S. 43, 70 (1906); Brown v. Walker, 161 U. S., at 610. This statement was made with specific reference to the Compulsory Testimony Act of 1893, 27 Stat. 443, the model for almost all federal immunity statutes prior to the enactment of the statute under consideration in this case. See Murphy v. Waterfront Comm’n, 378 U. S., at 95 (White, J., concurring). Accord, Gardner v. Broderick, 392 U. S., at 276; Murphy v. Waterfront Comm’n, supra; McCarthy v. Arndstein, 266 U. S., at 42 (Brandéis, J.); Heilce v. United States, 227 U. S. 131, 142 (1913) (Holmes, J.). Eor other provisions of the 1970 Act relative to immunity of witnesses, see 18 U. S. C. §§ 6001-6005. See, e. g., Murphy v. Waterfront Comm’n, supra, at 54, 78; Counselman v. Hitchcock, 142 U. S. 547, 585 (1892). See Piccirillo v. New York, 400 U. S. 548 (1971). 15 Stat. 37. See Counselman v. Hitchcock, supra, at 560. In re Counselman, 44 F. 268 (CCND Ill. 1890). Counselman v. Hitchcock, supra, at 564. Precisely, the Court held “that legislation cannot abridge a constitutional privilege, and that it" }, { "docid": "22672498", "title": "", "text": "of testimonial compulsion prior to the adoption of our Constitution, see 8 J. Wigmore, Evidence § 2190 (J. McNaughton rev. 1961). See Ullmann v. United States, 350 U. S. 422, 439 n. 15 (1956); Blair v. United States, 250 U. S. 273 (1919). Statute of Elizabeth, 5 Eliz. 1, c. 9, § 12 (1562). Countess of Shrewsbury’s Case, 2 How. St. Tr. 769, 778 (1612). See the parliamentary debate on the Bill to Indemnify Evidence, particularly the remarks of the Duke of Argyle and Lord Chancellor Hardwicke, reported in 12 T. Hansard, Parliamentary History of England 675, 693 (1812). See also Piemonte v. United States, 367 U. S. 556, 559 n. 2 (1961); Ullmann v. United States, supra, at 439 n. 15; Brown v. Walker, 161 U. S. 591, 600 (1896). 1 Stat. 73, 88-89. See Blair v. United States, supra, at 281; 8 Wigmore, supra, n. 2, §§ 2192, 2197. See Murphy v. Waterfront Comm’n, 378 U. S. 52, 55 (1964). See Ullmann v. United States, 350 U. S., at 426; E. Griswold, The Fifth Amendment Today 7 (1955). Murphy v. Waterfront Comm’n, supra, at 94 (White, J., concurring); McCarthy v. Arndstein, 266 U. S. 34, 40 (1924); United States v. Saline Bank, 1 Pet. 100 (1828); cf. Gardner v. Broderick, 392 U. S. 273 (1968). Hoffman v. United States, 341 U. S. 479, 486 (1951); Blau v. United States, 340 U. S. 159 (1950); Mason v. United States, 244 U. S. 362, 365 (1917). See, e. g., Miranda v. Arizona, 384 U. S. 436, 443-444 (1966); Boyd v. United States, 116 U. S. 616, 635 (1886). Soon after the privilege against compulsory self-incrimination became firmly established in law, it was recognized that the privilege did not apply when immunity, or “indemnity,” in the English usage, had been granted. See L. Levy, Origins of the Fifth Amendment 328, 495 (1968). Parliament enacted an immunity statute in 1710 directed against illegal gambling, 9 Anne, c. 14, §§ 3-4, which became the model for an identical immunity statute enacted in 1774 by the Colonial Legislature of New York. Law of Mar." }, { "docid": "14670847", "title": "", "text": "clearly indicated that once the relevant evidence had been discovered he would make a motion to suppress any tainted evidence. This motion was also denied without an evidentiary hearing. We conclude that this issue was properly raised in the trial court. This case presents the difficult question of what immunity is sufficient to supplant the Fifth Amendment’s privilege against self-incrimination where the questioning sovereign is a State and the prosecuting sovereign is the Federal Government. It is clear in this case that as to the questioning sovereign, the State of North Dakota, McDaniel received “transactional immunity” — i. e., immunity from prosecution for offenses revealed by the compelled testimony. McDaniel contends that under the standards of Counselman v. Hitchcock, 142 U. S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892), the Federal Government must also be precluded from prosecuting him for any offenses related to his compelled testimony. He relies primarily on the following language: “It is quite clear that legislation cannot abridge a constitutional privilege, and that it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect. * * * “We are clearly of opinion that no statute which leaves the party or witness subject to prosecution after he answers the criminating question put to him, can have the effect of supplanting the privilege conferred by the constitution of the United States, •x- * * in view of the constitutional provision, a statutory enactment, to be valid, must afford absolute immunity against future prosecution for the offense to which the question relates.” Id. at 585-586, 12 S.Ct. at 206. The Government, on the other hand, contends that only “use” immunity — i. e., that neither the compelled testimony nor evidence derived from it may be used in the federal prosecution — is required under the principles of Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964), and that there was no such use in the instant case. To this contention, McDaniel responds that Murphy and Counselman are in irreconcilable conflict and" }, { "docid": "22704267", "title": "", "text": "441 (1972); McCarthy v. Arndstein, 266 U. S. 34 (1924); Counselman v. Hitchcock, 142 U. S. 547 (1892). In each of these cases, however, the Court was responding to the dilemma that confronts persons asserting their Fifth Amendment privilege to a court or other tribunal vested with the contempt power. In each instance, the tribunal can require witnesses to appear without any showing of probable cause to believe they have committed an offense or that they have relevant information to convey, and require the witnesses to testify even if they have formally and expressly asserted a privilege of silence. Individuals in this situation are faced with what Justice Goldberg once described as “the cruel trilemma of self-accusation, perjury, or contempt.” Murphy v. Waterfront Comm’n, 378 U. S. 52, 55 (1964). If the witness’ invocation of the privilege at trial is not to be defeated by the State’s refusal to let him remain silent at an earlier proceeding, the witness has to be protected “against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case. ...” Lefkowitz v. Turley, 414 U. S. 70, 78 (1973). By contrast, suspects subject to informal custodial police interrogation of the type involved in this case are not in the same position as witnesses required to appear before a court, grand jury, or other such formal tribunal. Where independent evidence leads police to a suspect, and probable cause justifies his arrest, the suspect cannot seriously urge that the police have somehow unfairly infringed on his right “to a private enclave where he may lead a private life.” Murphy v. Waterfront Comm’n, supra, at 55. Moreover, when a suspect interjects not the privilege itself but a post hoc complaint that the police failed to administer Miranda warnings, he invokes only an irrebuttable presumption that the interrogation was coercive. He does not show that a privilege was raised and that the police actually or overtly coerced him to provide testimony and other evidence to be used against him at trial. See Johnson v. New Jersey, 384 U. S. 719, 730 (1966). He could" }, { "docid": "22057678", "title": "", "text": "constitutional claim. B In both Great Britain and in what later became the United States, immunity statutes, like the privilege against compulsory self-incrimination, predate the adoption of the Constitution. Kastigar v. United States, 406 U. S. 441, 445 n. 13, 446 n. 14. This Court first considered a constitutional challenge to an immunity statute in Counselman v. Hitchcock, 142 U. S. 547. The witness in that case had refused to testify before a federal grand jury in spite of a grant of immunity under the relevant federal statute. The Court overturned his contempt conviction. It construed the statute to permit the use of evidence derived from his immunized testimony. The witness was held to have validly asserted his privilege because “legislation cannot abridge a constitutional privilege, and . . . it cannot replace or supply one, at least unless it is so broad as to have the same extent in scope and effect.” Id., at 585. See also Brown v. United States, 359 U. S. 41; Ullmann v. United States, 350 U. S. 422; Brown v. Walker, 161 U. S. 591. After the holding in Malloy v. Hogan, 378 U. S. 1, that the Fifth Amendment privilege against compulsory self-incrimination is also contained in the Fourteenth Amendment, this rule is necessarily applicable to state immunity statutes as well. Cf. Murphy v. Waterfront Comm’n, 378 U. S. 52. Language in Counselman and its progeny was read by some to require that the witness must be immune from prosecution for the transaction his testimony concerned. Indeed, the federal statutes subsequently upheld by the Court granted such transactional immunity. Brown v. United States, supra; Ullman v. United States, supra; Heike v. United States, 227 U. S. 131; Brown v. Walker, supra. The adoption of Pub. L. 91-452 in 1970 marked a change in federal immunity legislation from the provision of transactional immunity to the provision of what is known as “use” immunity. 18 U. S. C §§ 6001, 6002. This immunity, similar to that provided by the New Jersey statute in this case, protects the witness from the use of his compelled testimony" }, { "docid": "22672505", "title": "", "text": "cannot replace or supply [sic] one, at least unless it is so broad as to have the same extent in scope and effect.” Id,., at 585. See Murphy v. Waterfront Comm’n, supra, at 54, 78. Counselman was decided Jan. 11, 1892. Senator Cullom introduced the new bill on Jan. 27, 1892. 23 Cong. Rec. 573. 23 Cong. Rec. 6333. Act of Feb. 11, 1893, 27 Stat. 443, repealed by the Organized Crime Control Act of 1970, Pub. L. No. 91-452, § 245, 84 Stat. 931. See the remarks of Senator Cullom, 23 Cong. Rec. 573, 6333, and Congressman Wise, who introduced the bill in the House. 24 Cong. Rec. 503. See Shapiro v. United States, 335 U. S. 1, 28-29 and n. 36 (1948). Ullmann v. United States, 350 U. S., at 438; Shapiro v. United States, supra, at 6. There was one minor exception. See Piccirillo v. New York, 400 U. S., at 571 and n. 11 (Brennan, J., dissenting); Arndstein v. McCarthy, 254 U. S. 71, 73 (1920). The statute is a product of careful study and consideration by the National Commission on Reform of Federal Criminal Laws, as well as by Congress. The Commission recommended legislation to reform the federal immunity laws. The recommendation served as the model for this statute. In commenting on its proposal in a special report to the President, the Commission said: “We are satisfied that our substitution of immunity from use for immunity from prosecution meets constitutional requirements for overcoming the claim of privilege. Immunity from use is the only consequence flowing from a violation of the individual’s constitutional right to be protected from unreasonable searches and seizures, his constitutional right to counsel, and his constitutional right not to be coerced into confessing. The proposed immunity is thus of the same scope as that frequently, even though unintentionally, conferred as the result of constitutional violations by law enforcement officers.” Second Interim Report of the National Commission on Reform of Federal Criminal Laws, Mar. 17, 1969, Working Papers of the Commission, 1446 (1970). The Commission’s recommendation was based in large part on a" } ]

[ { "docid": "21483433", "title": "", "text": "or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” LMRA, Title V, § 501(3), 29 U.S.C. § 142(3), provides that the terms “employee” and “labor organization” shall have the same meaning “as when used in the National Labor Relations Act as amended by this Act.” The reading of LMRA § 301 to exclude unions representing supervisors, as suggested by the union, was approved by the Second Circuit Court of Appeals in A. H. Bull Steamship Co. v. National Marine Engineers’ Beneficial Ass’n, 250 F.2d 332 (2d Cir. 1957), cert, denied A. H. Bull S. S. Co. v. Seafarers & Intern. Union, 355 U.S. 932, 78 S.Ct. 411, 2 L.Ed.2d 414 (1958). Two other courts, in dictum, so interpret this section. International Organization of Masters, Mates and Pilots of America, Inc. v. National Labor Relations Board, 351 F.2d 771, 775 (D.C.Cir. 1965); Retail Clerks, Local 330, Pharmacists & Retail Drug Store Employees Union v. Lake Hills Drug Co., 49 CCH Lab.Cas. ¶ 18,916 (W.D.Wash.1964). In Bull, National MEBA was sued by Bull Steamship Company for specific performance of a collective-bargaining agreement, which contained a no-strike clause. Notwithstanding that clause, it called a strike. Bull Steamship Company moved for an injunction pendente lite enjoining National MEBA from continuing the strike in violation of the no-strike clause. The district court granted the injunction. 156 F.Supp. 190 (E.D.N.Y.1957). On appeal, two questions were presented: (1) whether the dispute was a “labor dispute” within the meaning of the Norris-LaGuardia Act, which prohibits a federal court from enjoining a peaceful strike, and (2) whether LMRA § 301 granted jurisdiction to the federal courts in a suit over a collective-bargaining agreement between an employer and a union covering only supervisory personnel. The Court of Appeals decided that the dispute was a “labor dispute” precluding the issuance of an injunction by the federal courts. It went on to discuss LMRA § 301: “The substantial" } ]

[ { "docid": "14224863", "title": "", "text": "labor organization representing employees in an industry affecting commerce . . . .” Appellant contends that since MMP represents only “supervisory” employees, and since section 2(3) of the National Labor Relations Act, as amended, 29 U.S.C. § 152(3), and section 501(3) of the Labor Management Relations Act, 29 U.S.C. § 142(3), operate to exclude MMP from definition as a “labor organization representing employees” (emphasis added), jurisdiction cannot be predicated upon section 301(a). This rather mechanical approach to the statutory interpretation has found some judicial adherents. See Masters, Mates & Pilots Union v. NLRB, 351 F.2d 771 (D.C.Cir. 1965); Pharmacists, Local 330 v. Lake Hills Drug Co., 255 F.Supp. 910 (W.D.Wash. 1964) (dictum). We, however, agree with the Second Circuit that Congress, by eliminating supervisory employees from the bargaining and organizational protection of subchapter II, did not intend to deprive members of “supervisory unions” of the rights secured by section 301. E. g., National Marine Eng’rs Beneficial Ass’n v. Globe Seaways, Inc., 451 F.2d 1159, 1160 n. 1 (2d Cir. 1971); United States v. National Marine Eng’rs Beneficial Ass’n, 294 F.2d 385 (2d Cir. 1961); Isbrandtsen Co. v. District 2, Marine Eng’rs Beneficial Ass’n, 256 F.Supp. 68 (E.D. N.Y.1966); see United States v. National Marine Eng’rs Beneficial Ass’n, 292 F.2d 190, 192 (2d Cir. 1961). We thus conclude .that the complaint stated a claim within the District Court’s jurisdiction. The above notwithstanding, the decision below cannot stand. Examining the entire record, we find no evidence that the union “unfairly represented” Dente in a manner for which compensation is available under Vaca v. Sipes, supra. We can perceive no union conduct that was performed in bad faith or that could be characterized as arbitrary or discriminatory. 386 U.S. at 190, 87 S.Ct. 903. The worst that can be said of the union’s conduct is that it was negligent, and this of course is not enough. For whatever can be said of the union’s delay in processing the grievance and moving to arbitration, it was not that kind of “arbitrary abuse” giving rise to damages under section 301. Id. at 193, 87 S.Ct." }, { "docid": "12203655", "title": "", "text": "(citations omitted). See also United Association of Journeymen & Apprentices of the Plumbing & Pipefitters, Industry v. Local 334, 452 U.S. 615, 101 S.Ct. 2546, 69 L.Ed.2d 280 (1981) (permitting suit by one union against another for alleged violations of a union constitution to be maintained under section 301); Rutledge v. Aluminum Brick & Clay Workers Int’l Union, 737 F.2d 965 (11th Cir.1984); International Union, Allied Industrial Workers v. Local Union No. 589, 693 F.2d 666, 671 (7th Cir.1982); Hill v. Iron Workers Local Union, No. 25, 520 F.2d 40 (6th Cir.1975); Dente v. Masters, Mates & Pilots Local 90, 492 F.2d 10 (9th Cir.1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974). Thus, there can be little doubt that an employee can maintain an action under section 301(a) against the union for breach of the labor contract, at least, where, as here, the employee has also alleged a breach of the duty of fair representation. The second issue — whether the contract provisions on which Lewis relies were “intended to confer a benefit upon ... [Lewis],” Lockridge, 403 U.S. at 298-99, 91 S.Ct. at 1924, — is less clear. Those provisions may have been negotiated solely for the benefit of the employer as a protection against a union’s abusing its exclusive power to refer employees. For example, in this case, the employers demand to be allowed to veto the Union’s referrals, and they insist that the Union promise to refer competent applicants to them and also not to discriminate against nonunion workers. If the Union breaks this promise the employers can sue the Union under section 301(a), but the employee cannot because the promises do not run to him. And there is no allegation that any employer covered by the agreement in this case is dissatisfied because the Union has not referred Lewis to him. It may be doubtful therefore whether this is a suit “by a union member against his union that seeks to redress union interference with rights conferred on individual employees by the employer’s [or the union’s] promises in the collective-bargaining agreement,”" }, { "docid": "890811", "title": "", "text": "that a labor organization is an organization \"in which employees participate,\" see 29 U.S.C. § 152(5), not an organization in which supervisors participate, An “employee” within the meaning of the Act excludes supervisors. As the majority recognizes, an employer may fire a supervisor for participating in a union. See Florida Power & Light Co. v. IBEW, 417 U.S. 790, 94 S.Ct. 2737, 41 L.Ed.2d 477 (1974). This remedy does, however, place the burden upon the employer to enforce his rights by exercising his right of discharge. The unanswered question is whether the employer may utilize the alternative, less drastic remedy of refusal to bargain with a union containing his supervisors. Cf. Typographical Local 38 v. NLRB, 278 F.2d 6 (1 Cir. 1960) (violation of § 8(b)(2) and § 8(b)(3) for union to insist that supervisor be a member of the union), affd by an equally divided court, 365 U.S. 705, 81 S.Ct. 855, 6 L.Ed.2d 36 (1961). Therefore, cases holding a union that contains supervisors may be a labor organization for purposes of § 8(b), see, e. g., Masters, Mates & Pilots Union v. NLRB, 159 U.S.App.D.C. 11, 486 F.2d 1271 (1973), cert. denied, 416 U.S. 956, 94 S.Ct. 1970, 40 L.Ed.2d 306 (1974); Marriott Corp. v. NLRB, 491 F.2d 367 (9 Cir.), cert. denied, 419 U.S. 881, 95 S.Ct. 146, 42 L.Ed.2d 578 (1974), or for purposes of LMRA § 301, see Pharmacists Employees Local 330 v. Lake Hills Drug Co., 255 F.Supp, 910 (D.Wash.1964), are not determinative. Cf. Report and Recommendations on Labor-Management Relations in the Federal Service, GERR Ref. File 21:1018 (1973) (supervisors should not participate in the management of labor organization within Executive Order 11491); Executive Order 11491 §§ 2(c), 10(b)(1), 21(b), 24(2). . On that ground, the instant case is to be distinguished sharply from those cases in which a certified labor organization chooses an official of a local or other group to conduct its labor negotiations. See, e. g., General Electric Co. v. NLRB, 412 F.2d 512, 517 (2 Cir. 1969), and cases cited therein. The rationale of those cases is that the employees" }, { "docid": "14224862", "title": "", "text": "OPINION ELY, Circuit Judge; Florin Dente, a member of Local 90 of the International Organization of Masters, Mates and Pilots (hereinafter “MMP”), filed a grievance with the Local in December, 1969, against his employer for wrongful discharge. Since the Local was involved in contract rene-gotiations, this grievance, as well as many others, was not arbitrated until September, 1970. At that time, Dente was reinstated, but the arbitrator declined to award back pay. Dente then initiated this damage action against his union, asserting that the delay between his grievance and the arbitration effectively deprived him of wages during the intervening period. The District Court held that under section 301(a) of the Labor-Management Relations Act, 29 U.S.C. § 185(a), as construed, Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967), the union was liable to Dente for damages arising out of the delay in arbitration. The threshold question is whether jurisdiction here exists under section 301(a), which vests jurisdiction in district courts over “[s]uits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce . . . .” Appellant contends that since MMP represents only “supervisory” employees, and since section 2(3) of the National Labor Relations Act, as amended, 29 U.S.C. § 152(3), and section 501(3) of the Labor Management Relations Act, 29 U.S.C. § 142(3), operate to exclude MMP from definition as a “labor organization representing employees” (emphasis added), jurisdiction cannot be predicated upon section 301(a). This rather mechanical approach to the statutory interpretation has found some judicial adherents. See Masters, Mates & Pilots Union v. NLRB, 351 F.2d 771 (D.C.Cir. 1965); Pharmacists, Local 330 v. Lake Hills Drug Co., 255 F.Supp. 910 (W.D.Wash. 1964) (dictum). We, however, agree with the Second Circuit that Congress, by eliminating supervisory employees from the bargaining and organizational protection of subchapter II, did not intend to deprive members of “supervisory unions” of the rights secured by section 301. E. g., National Marine Eng’rs Beneficial Ass’n v. Globe Seaways, Inc., 451 F.2d 1159, 1160 n. 1 (2d Cir. 1971); United States v. National Marine" }, { "docid": "11862932", "title": "", "text": "bring public employees within the coverage of other provisions of federal labor law, it has enacted explicit amendments or separate legislation. Examples of this include the 1974 amendments to the Fair Labor Standards Act, 29 U.S.C. § 203(d), which removed the public entity exemption to that Act, and the Federal Labor Management Relations Act, 5 U.S.C. §§ 7101-7135, which created the Federal Labor Relations Authority. In contrast to those explicit enactments, there is no express provision for the coverage suggested here, and the explicit statutory language denies coverage. Ayres relies upon Dente v. International Organization of Masters, Mates and Pilots, Local 90, 492 F.2d 10 (9th Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974). Dente concerned our jurisdiction under section 301(a) to hear the claims of supervisory employees. We he’d that although supervisors are excluded from the statutory definition of employees, Congress could not have intended to deprive them of the rights created by section 301(a). Other circuits have also determined that the explicit exception of supervisors from section 152 does not constitute an exclusion of supervisory employees from all provisions of the Act. See District 2, Marine Engineers Beneficial Association AFL-CIO v. Amoco Oil Company, 554 F.2d 774, 777 (6th Cir. 1977) (supervisory employee exemption limited to provisions of subchapter II of the Act); United States v. National Marine Engineers’ Beneficial Association, 294 F.2d 385 (2d Cir. 1961) (exclusion of supervisory employees does not apply to subchapter III of the Act, relating to national emergencies). However, Ayres’s contention that Dente mandates a limitation of the section 152 definitions to subchapter II of the Act is incorrect. Dente merely requires that we avoid a “mechanical approach” to the literal terms of the statute. Dente, 492 F.2d at 12. Expansion of section 301(a) coverage to su pervisors was clearly consistent with Congress’s intent to protect employees. Expansion of coverage to include public employees involves the conflicting intent, not present in Dente, to exclude the states from the reach of federal labor laws. See Crilly, 529 F.2d at 1360. We decline to extend the coverage of" }, { "docid": "23466075", "title": "", "text": "in particular the emergency strike injunction provisions of § 208, 29 U.S.C. § 178. In United States v. National Marine Eng’rs Beneficial Ass’n (MEBA), 294 F.2d 385 (2d Cir. 1961), Judge Friendly concluded that supervisors were excluded from coverage under the Wagner Act but that Congress intended that they be covered by the Taft-Hartley Act despite the cross reference in § 501(3). Holding that the district court properly applied § 208(a) to end a national emergency supervisor strike, the Second Circuit reasoned that if a literal application of a statute led to a result plainly at variance with the clear legislative purpose, the literal meaning must yield to the legislative purpose. 294 F.2d at 385, 393. In Dente v. Int’l Organization of Masters, Mates and Pilots, 492 F.2d 10 (9th Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974), the Ninth Circuit applied Judge Friendly’s reasoning in a suit by a member of a supervisor union against that union for violating its duty of fair representation. The court held that there was federal jurisdiction under § 301(a) to. entertain the suit. 492 F.2d at 12. Finally, in Isbrandtsen Co. v. Dist. 2, Marine Eng’rs Beneficial Ass’n, 256 F.Supp. 68 (E.D.N.Y.1966), a supervisor union sued in state court to compel arbitration of a wage dispute. The employer petitioned for removal on the ground that the district court for the Eastern District of New York had jurisdiction under § 301(a), 29 U.S.C. § 185(a). The district court denied the union’s motion to remand. It reasoned that Congress had a specific purpose in excluding supervisors from the jurisdiction of the National Labor Relations Board, but that it did not intend to exclude supervisors from suits under § 301(a) for violation of collective bargaining agreements. The Isbrandtsen case has been cited approvingly by the Second Circuit. Thus, at least two circuits in determining whether there is § 301(a) jurisdiction over a union look no further than the language “labor organization which represents employees in an industry affecting commerce”, and disregard the cross reference in § 501(3) to a restrictive" }, { "docid": "4154448", "title": "", "text": "723 F.2d 837 (11th Cir.), cert. denied, 467 U.S. 1243, 104 S.Ct. 3517, 82 L.Ed.2d 825 (1984), the Eleventh Circuit adopted the federal statute of limitations in a section 301 case involving a breach of the duty of fair representation. The court reasoned that because unfair representation claims also are unfair labor practices, the six-month period from section 10(b) applies. This circuit has been “properly circumspect” about applying the federal statute of limitations to nonhybrid section 301 suits. Niro v. Fearn Int’l, Inc., 827 F.2d 173, 177 (7th Cir.1987) (collecting cases for and against application of the six-month rule to pure section 301 suits brought by a union to compel an employer to arbitrate a grievance). First, we look to see if federal law provides a more closely analogous limitations period than any state statute. Second, we choose a federal limitations period if federal policies and the practicalities of litigation make that statute of limitations more appropriate. Plumbers Pension Fund, Local 130 v. Domas Mechanical Contractors, 778 F.2d 1266, 1268-70 (7th Cir.1985). A comparison of Plaintiffs’ complaint to an unfair labor practice claim for breach of the duty of fair representation convinces us that the two are not just closely analogous, but identical. The duty of fair representation arises from the union’s exclusive right to represent all bargaining unit members in their dealing with the employer. Vaca, 386 U.S. at 182, 87 S.Ct. at 912. A union commits an unfair labor practice under section 8(b) of the NLRA when its conduct toward a member of the collective bargaining unit is “arbitrary, discriminatory, or in bad faith.” Id. at 190, 87 S.Ct. at 916. On May 29, 1984, the Plaintiffs filed an unfair labor practice charge with the National Labor Relations Board (“NLRB”) alleging that the Union violated section 8(b)(1)(A) of the NLRA. The basis of the charge was that [o]ur local went on strike on April 16, 1984 after we were assured by union officials that all the proper procedures had been followed. Our strike ended on April 19, 1984 after it was determined to be “illegal” because the union" }, { "docid": "1210599", "title": "", "text": "defendants’ position is that plaintiffs’ complaint is brought to “enforce” the collective bargaining agreement, and because some interpretation of that agreement appears to be necessary, Section 301(a) confers jurisdiction upon this Court. Defendants argue that because any duty imposed upon defendants was imposed under the collective bargaining agreement, and as the complaint alleges a failure to perform that duty, this is an action “for violation” of a collective bargaining agreement within the meaning of Section 301(a). This Court has not been able to find any reported case in which any federal court has held that the mere negligent failure by the union to perform a duty owed only to its own members under a collective bargaining agreement has been held sufficient to invoke Section 301(a) jurisdiction, where the failure resulted in a personal injury and the suit seeks relief via damages predicated upon negligence for the injury sustained. The case law as to whether such an action in this regard is maintainable under Section 301(a) is, at best, unclear. Neither Motor Coach Employees v. Lockridge, supra, nor Vaca v. Sipes, supra, address themselves to this question. In Bryant v. Int. Union, U.M.W. of America, supra, the jurisdictional question was not specifically addressed by the Sixth Circuit, and the contract did not provide for a mandatory affirmative duty on behalf of the Union to inspect the mines for compliance with the safety rules and regulations. As noted previously the Ninth Circuit in 1973 took the position that a Section 301(a) suit by a member-employee against his union will lie for union breaches of contractual promises in the collective bargaining agreement creating duties owed by the union to its member-employees. See Buzzard v. Local Lodge 1040 Int. Ass’n. of Mach. & A. Workers, supra. And see Beriault v. Local 40, Super Cargoes & Checkers of I.L.W.U., 501 F.2d 258 (9th Cir. 1974). However, in Dente v. International Org. of Masters, Mates & Pilots, Local 90, 492 F.2d 10 (9th Cir.) (December 5, 1973), cert. den., 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974), the Ninth Circuit noted that an employee’s" }, { "docid": "23566118", "title": "", "text": "the union presenting the grievance has breached its duty of fair representation, Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567, 96 S.Ct. 1048, 47 L.Ed.2d 231 (1976), and that section 301 of the Labor Management Relations Act may provide the jurisdictional basis for employee suits against employers and labor organizations. That section provides that “[sjuits for violation of contracts between an employer and a labor organization representing employees . . . may be brought in any district court . . .” 29 U.S.C. § 185(a). The prerequisite for jurisdiction is a contract between an employer and a labor organization. Smith v. Evening News Ass’n, 371 U.S. 195, 200, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962). However, § 301 creates federal jurisdiction only over parties to the contract, and federal jurisdiction under § 301 is limited to “[sjuits for violation of contracts between an employer and a labor organization . . . 29 U.S.C. § 185. Thus in Aacon Contracting Co. v. Ass’n of Catholic Trade Unionists, 178 F.Supp. 129 (E.D.N.Y.1959), claiming that the defendant union attempted to compel plaintiff to breach a collective bargaining agreement it had with another union, plaintiff attempted to assert federal jurisdiction over the dispute even though there was no contractual relationship between plaintiff and defendant. The complaint was dismissed and the Second Circuit affirmed, 276 F.2d 958 (2d Cir. 1960), on the opinion of the trial judge: “The language of the statute is explicit. It specifically refers to suits for violation of contracts between an employer and a labor organization. In this case there is no contractual relationship between the parties.” 178 F.Supp. at 130. While clearly this does not prevent Sever, as an individual member of a signatory union from claiming under § 301, Smith v. Evening News Ass’n, supra, 371 U.S. at 200, 83 S.Ct. 267, he may only bring suit against the parties signatory to the agreement, and here the Eastern Conference is not a party. The Eastern Conference is not a party to any collective bargaining agreement and represents no employees directly; it has never been a party to" }, { "docid": "11862931", "title": "", "text": "He contends that no exemption of political entities exists as to the remaining provisions of the Labor Management Relations Act, including section 301(a). The arguments raised by Ayres were considered by the Third Circuit in a case virtually identical to this one, Crilly v. Southeastern Pennsylvania Transportation Authority, 529 F.2d 1355 (3d Cir. 1976). In a thoughtful and persuasive opinion, Judge Gibbons concluded that the literal terms of the Act indicate that section 301(a) does not apply to political subdivisions, and that there is insufficient legislative history to support a contrary interpretation. Although acknowledging the Act’s theme of employee protection, Judge Gibbons determined that the application of section 301(a) to political subdivisions would be an expansion of coverage, a function committed to the legislature rather than to the courts. Id. at 1357. We adopt this view as the proper interpretation of the Act. Had it been the intent of Congress to extend the protections of section 301(a) to public employees, we believe that purpose would have been stated more clearly. When Congress has wished to bring public employees within the coverage of other provisions of federal labor law, it has enacted explicit amendments or separate legislation. Examples of this include the 1974 amendments to the Fair Labor Standards Act, 29 U.S.C. § 203(d), which removed the public entity exemption to that Act, and the Federal Labor Management Relations Act, 5 U.S.C. §§ 7101-7135, which created the Federal Labor Relations Authority. In contrast to those explicit enactments, there is no express provision for the coverage suggested here, and the explicit statutory language denies coverage. Ayres relies upon Dente v. International Organization of Masters, Mates and Pilots, Local 90, 492 F.2d 10 (9th Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974). Dente concerned our jurisdiction under section 301(a) to hear the claims of supervisory employees. We he’d that although supervisors are excluded from the statutory definition of employees, Congress could not have intended to deprive them of the rights created by section 301(a). Other circuits have also determined that the explicit exception of supervisors from section" }, { "docid": "23466076", "title": "", "text": "there was federal jurisdiction under § 301(a) to. entertain the suit. 492 F.2d at 12. Finally, in Isbrandtsen Co. v. Dist. 2, Marine Eng’rs Beneficial Ass’n, 256 F.Supp. 68 (E.D.N.Y.1966), a supervisor union sued in state court to compel arbitration of a wage dispute. The employer petitioned for removal on the ground that the district court for the Eastern District of New York had jurisdiction under § 301(a), 29 U.S.C. § 185(a). The district court denied the union’s motion to remand. It reasoned that Congress had a specific purpose in excluding supervisors from the jurisdiction of the National Labor Relations Board, but that it did not intend to exclude supervisors from suits under § 301(a) for violation of collective bargaining agreements. The Isbrandtsen case has been cited approvingly by the Second Circuit. Thus, at least two circuits in determining whether there is § 301(a) jurisdiction over a union look no further than the language “labor organization which represents employees in an industry affecting commerce”, and disregard the cross reference in § 501(3) to a restrictive definition of employee or labor organization. Obviously the same technique of statutory construction could be-used with respect to the definition of employer. That is, we might look not to the literal language of § 501(3) and § 2(2), but to the dominant intention of Congress in enacting the Labor Management Relations Act. If we perceive that the dominant intention was to cover all employers in industries where a labor dispute would burden or obstruct commerce or the free flow of commerce, we could conclude that the exclusion of political subdivision employers in § 2(2) was not intended to apply to both Acts. If we perceive that the dominant intention was to exclude totally from the reach of the national law of labor relations states and their political subdivisions, however, we should conclude that § 2(2) applies and that there is no § 301(a) jurisdiction. But as is so often the case, Congress has revealed its dominant intention with crystalline ambiguity. We have not been referred to any legislative history in the eightieth Congress disclosing so" }, { "docid": "23200406", "title": "", "text": "under the doctrine, an essential element is “a bad faith motive, an intent to hostilely discriminate against a portion of the union’s membership.” Hardcastle v. Western Greyhound Lines, supra, 303 F.2d at 185 (emphasis supplied). We have examined the complaint carefully, and conclude that the plaintiffs have failed to state a claim sufficiently within the fair representation doctrine to invoke the exception to the primary jurisdiction doctrine. The complaint does not allege that the Union’s actions were intentional, were hostile to any class of persons, or were undertaken with the deliberate purpose of benefiting other employees in the district. Rather, the complaint speaks of neglect, or carelessness, in the wording accompanying Proposal No. 4. The Ninth Circuit has held that negligent conduct on the part of the Union is not enough to invoke the fair representation doctrine. Dente v. International Organization of Masters, Mates & Pilots, Local 90, 492 F.2d 10, 12 & n.3 (9th Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974). But see id. at 12-13 (Browning, J., concurring). Moreover, the vote here was simply an advisory one, and the plaintiffs do not contend that a referendum was required by law. Nor were adequate facts alleged to support an inference of bad faith or discriminatory intent. The alleged misrepresentation occasioned by one sentence in Proposal No. 4 is doubtful, and is certainly not of a magnitude to indicate bad faith. As we read it, the meaning of the disputed sentence is that, under Proposal No. 4, unlike No. 3, a person is not locked into his own prior district’s jobs before he can go elsewhere. This is an accurate statement. Moreover, Proposal No. 4 refers the reader to Proposal No. 3, and the example in Proposal No. 3 clearly shows that a person with an earlier date of hire might be adversely affected if his prior district had been a less active one. The further allegations that the Union acted “in an unfair, invidious, unequal and arbitrary manner” toward the plaintiffs are mere conclusions of law, plainly insufficient under Federal Rule of" }, { "docid": "12203654", "title": "", "text": "was satisfied that the suit was one to enforce the collective bargaining agreement. Second, we would be creating an artificial and irrational distinction by holding that section 301(a) permits suits by employees against employers, but not against unions. Moreover, such an irrational distinction would clearly undercut the broad rationale of Evening News, and the clear congressional policy choices behind section 301(a) which were identified by the Court in that case. See id. at 199-200, 83 S.Ct. at 269-70. Finally, although Lock-ridge might at first glance suggest that the presence of the employer as a defendant is critical to section 301(a) jurisdiction, see id. at 298-99, 91 S.Ct. at 1923-24, a closer look reveals that in that case the employee sued his union for breach of an implied agreement between the union and the employee, not for the union’s breach of the collective bargaining agreement. Indeed, in Lockridge, the Court explicitly noted without qualification that “... individual employees have standing to protect rights conferred upon them by such agreements.” Id. at 298, 91 S.Ct. at 1924 (citations omitted). See also United Association of Journeymen & Apprentices of the Plumbing & Pipefitters, Industry v. Local 334, 452 U.S. 615, 101 S.Ct. 2546, 69 L.Ed.2d 280 (1981) (permitting suit by one union against another for alleged violations of a union constitution to be maintained under section 301); Rutledge v. Aluminum Brick & Clay Workers Int’l Union, 737 F.2d 965 (11th Cir.1984); International Union, Allied Industrial Workers v. Local Union No. 589, 693 F.2d 666, 671 (7th Cir.1982); Hill v. Iron Workers Local Union, No. 25, 520 F.2d 40 (6th Cir.1975); Dente v. Masters, Mates & Pilots Local 90, 492 F.2d 10 (9th Cir.1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974). Thus, there can be little doubt that an employee can maintain an action under section 301(a) against the union for breach of the labor contract, at least, where, as here, the employee has also alleged a breach of the duty of fair representation. The second issue — whether the contract provisions on which Lewis relies were “intended to" }, { "docid": "23561802", "title": "", "text": "“relate” to employee benefit plans, and the deemer clause would in effect preempt these. See Eversole, 500 F.Supp. at 1169, and Wadsworth, 562 F.2d at 78. Accordingly, the court concludes that at least when the plan is not created pursuant to collective bargaining, ERISA does not preempt state law claims for breach of contract and implied duties of good faith and fair dealing. However, when the plan is created pursuant to a collective bargaining agreement, as in the instant case, the preemption analysis takes on a new dimension. The question then becomes whether federal labor law and policy require a different result. The analysis of this question begins with the Ninth Circuit’s decision in Rehmar v. Smith, 555 F.2d 1362 (9th Cir.1976). In Rehmar, a case arising just prior to the effective date of ERISA, the trustees of a pension plan had denied plaintiff survivor’s benefits under a collectively-bargained pension plan. Plaintiff sued in state court, and the trustees removed. Applying principles derived from state insurance law, such as, inter alia, that ambiguities should be construed against the insurer, the district court found for the plaintiff. The Ninth Circuit reversed. First, it considered whether the district court had jurisdiction under § 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, over a suit to recover pension benefits allegedly due under a collectively bargained pension plan. § 301 provides: [sjuits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court without respect to amount in controversy or without respect to the citizenship of the parties. Construing this section to require only that a suit be for violation of a contract between a union and an employer, the court held that § 301 jurisdiction exists regardless of whether either the union or the employer is a party to the suit. Having concluded that the district court had jurisdiction under § 301, the court then determined, citing Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), that federal common" }, { "docid": "1210600", "title": "", "text": "supra, nor Vaca v. Sipes, supra, address themselves to this question. In Bryant v. Int. Union, U.M.W. of America, supra, the jurisdictional question was not specifically addressed by the Sixth Circuit, and the contract did not provide for a mandatory affirmative duty on behalf of the Union to inspect the mines for compliance with the safety rules and regulations. As noted previously the Ninth Circuit in 1973 took the position that a Section 301(a) suit by a member-employee against his union will lie for union breaches of contractual promises in the collective bargaining agreement creating duties owed by the union to its member-employees. See Buzzard v. Local Lodge 1040 Int. Ass’n. of Mach. & A. Workers, supra. And see Beriault v. Local 40, Super Cargoes & Checkers of I.L.W.U., 501 F.2d 258 (9th Cir. 1974). However, in Dente v. International Org. of Masters, Mates & Pilots, Local 90, 492 F.2d 10 (9th Cir.) (December 5, 1973), cert. den., 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974), the Ninth Circuit noted that an employee’s right to sue his union under Section 301(a) is limited to those situations in which the union’s breach of duty rises to the level of a denial of the duty of fair representation. In Richardson v. Comm. Wkrs. of America, 443 F.2d 974 (8th Cir. 1971), the plaintiff employee brought suit against both the employer and the union for wrongful discharge and for discrimination. The suit against the union was predicated upon Section 301(a) jurisdiction arising out of a clause of the collective bargaining agreement that prevent ed the union from discriminating against employees due to membership or nonmembership in the union, and from intimidating or coercing any employee into joining the union or continuing membership therein. The factual context involved an employee who had withdrawn from union membership and was thereafter harassed by union members and eventually wrongfully discharged, for alleged violations of company rules, at the urging of the union. The Eighth Circuit held that the essence of plaintiff’s claim against the union was not for breach of contract, but rather for breach" }, { "docid": "16592668", "title": "", "text": "representation suit. The following quotes from Anchor reveal that such a suit may be brought to vindicate “uniquely personal rights” of employees such as working conditions. Further, the right to sue is granted because collective activity may sometimes arbitrarily be at the expense of an individual member. “Section 301 contemplates suits by and against individual employees as well as between unions and employees; and contrary to earlier indications § 301 suits encompass those seeking to vindicate ‘uniquely personal’ rights of employees such as wages, hours, overtime pay, and wrongful discharge . . . ” 96 S.Ct. at 1055, 47 L.Ed.2d at 240. * * * * * “ . . . The federal labor laws, in seeking to strengthen the bargaining position of the average worker in an industrial economy, provided for the selection of collective-bargaining agents with wide authority to negotiate and conclude collective-bargaining agreements on behalf of all employees in appropriate units, as well as to be the employee’s agent in the enforcement and administration of the contract. Wages, hours, working conditions, seniority and job security therefore became the business of certified or recognized bargaining agents, as did the contractual procedures for the processing and settling of grievances, including those with respect to discharge.” ****** “ . . . the duty of fair representation has served as a ‘bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.’ ” 96 S.Ct. at 1056, 47 L.Ed.2d at 241. . In Dente v. International Org. of Masters, Mates & P., Local 90, 492 F.2d 10 (9th Cir. 1974), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974), plaintiff sought relief under Section 301(a), and the court held that the complaint under that section was proper, however, negligent conduct by the union was not sufficient to uphold relief. Plaintiff also asserted what was labeled a separate theory of recovery—a recovery based on breach of the collective bargaining agreement. The court stated: “The right of an employee to sue his union under section 301(a) is limited to those" }, { "docid": "21483448", "title": "", "text": "remove supervisors from the jurisdiction of the National Labor Relations Board; to withdraw them from the compulsory provisions of the National Labor Relations Act. See H.R. Rept. No. 245 on H.R. 3020, 80th Cong., 1st Sess. 5, 8, 13, 15 (1947); S. Rept. No. 105 on S. 1126, 80th Cong., 1st Sess. 4-5, 19, 28 (1947); Conf. Rept. No. 510 on H.R. 3020, 80th Cong., 1st Sess. 60 (1947); U. S. Code Congressional Service 1947, p. 1135; 93 Cong. Rec. 3533, 3952, 4260 (1947). It does not follow that it was the intention of Congress to exclude from the jurisdiction of a federal court under § 301 of Title III suits for violation of collective- bargaining agreements merely because the members of the union, which is a party to such an agreement, are supervisory employees, as long as they are in an industry affecting interstate commerce. “It will be noted, however, that this amendment does not mean that employers cannot still bargain with supervisors and include them, if they see fit, in collective bargaining contracts. All that the proposal does is to prevent employers being compelled to accord supervisors the anomalous status of employees for the purposes of the Wagner [National Labor Relations] Act.” S.Rept. No. 105 on S. 1126, 80th Cong., 1st Sess. 19 (1947). Interpreting the phrase “labor organization representing employees in an industry affecting commerce” in its ordinary meaning comports with the expressed legislative intent of avoiding industrial strife by making labor unions suable as entities in the Federal courts. The court concludes that it has original jurisdiction of this action under LMRA § 301, 29 U.S.C. § 185. The union urges the court to remand to the state court, despite a finding that it has jurisdiction. It advances a most unusual argument. It agrees that, regardless of the forum, federal law should and will be applied. See Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957). It assumes that, despite a finding of federal court jurisdiction, this court has the discretionary power to remand and" }, { "docid": "23466074", "title": "", "text": "suggests that political subdivisions of states are excluded from coverage under either act. While we could conclude our analysis at this point if the definitions of the Wagner Act were clearly intended to be literally applied to suits under the Taft-Hartley Act, several significant decisions have cautioned that literalism may not be the appropriate canon of statutory construction. See, e. g. United States v. Ryan, 350 U.S. 299, 76 S.Ct. 400, 100 L.Ed. 335 (1950). Contra, Puerto Rico Marine Management, Inc. v. Internat’l Longshoremen’s Ass’n, AFL-CIO, 398 F.Supp. 118 (D.P.R.1975). Supervisors, for example, had not been mentioned in the original definition of employees in § 2(3) of the Wagner Act, 29 U.S.C. § 152(3). Section 501(3) of the Taft-Hartley Act cross references the definition of employee to § 2(3) of the Wagner Act. Among the amendments to that Act included in Title I of the Taft-Hart-ley Act was a redefinition of employee expressly excluding supervisors. If the cross reference was read literally, supervisor unions would fall outside the provisions of the Labor Management Relations Act, in particular the emergency strike injunction provisions of § 208, 29 U.S.C. § 178. In United States v. National Marine Eng’rs Beneficial Ass’n (MEBA), 294 F.2d 385 (2d Cir. 1961), Judge Friendly concluded that supervisors were excluded from coverage under the Wagner Act but that Congress intended that they be covered by the Taft-Hartley Act despite the cross reference in § 501(3). Holding that the district court properly applied § 208(a) to end a national emergency supervisor strike, the Second Circuit reasoned that if a literal application of a statute led to a result plainly at variance with the clear legislative purpose, the literal meaning must yield to the legislative purpose. 294 F.2d at 385, 393. In Dente v. Int’l Organization of Masters, Mates and Pilots, 492 F.2d 10 (9th Cir. 1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974), the Ninth Circuit applied Judge Friendly’s reasoning in a suit by a member of a supervisor union against that union for violating its duty of fair representation. The court held that" }, { "docid": "13820765", "title": "", "text": "Augspurger, 510 F.2d at 858-59. A union breaches its duty to fairly represent its members only if it is dishonest or arbitrary, acts in bad faith, or with personal hostility. In this circuit mere negligence is not enough. Dente v. Masters, Mates & Pilots Local 90, 492 F.2d 10 (9th Cir.1973), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974). There is a body of cases extant which deals with charges of breach within the integration of seniority lists-merger situation. See, e.g., Humphrey v. Moore, 375 U.S. at 355, 84 S.Ct. 363; Price v. Teamsters, 457 F.2d 605 (3d Cir.1972). These courts have observed that within this context, it is almost inevitable that some individuals will be injured, and that even where the same union represents both bodies of employees, it does not breach its duty to individual members as long as it proceeds on some reasoned basis. Id. If a union has not met this minimal level of representation, perhaps the merger should be re-examined. The employer is, of course, never open to liability on this theory until breach by the union has been established. Vaca v. Sipes, 386 U.S. at 195-98. We therefore hold that despite the statutory delegation of control over airline mergers to the CAB, jurisdiction to hear duty-of-fair-representation claims remains in the district courts. The district court is REVERSED both as to the duty-of-fair-representation suit against the union and the breach-of-contract action against the employer. The case is remanded for further proceedings not inconsistent with this opinion." }, { "docid": "16592669", "title": "", "text": "and job security therefore became the business of certified or recognized bargaining agents, as did the contractual procedures for the processing and settling of grievances, including those with respect to discharge.” ****** “ . . . the duty of fair representation has served as a ‘bulwark to prevent arbitrary union conduct against individuals stripped of traditional forms of redress by the provisions of federal labor law.’ ” 96 S.Ct. at 1056, 47 L.Ed.2d at 241. . In Dente v. International Org. of Masters, Mates & P., Local 90, 492 F.2d 10 (9th Cir. 1974), cert. denied, 417 U.S. 910, 94 S.Ct. 2607, 41 L.Ed.2d 214 (1974), plaintiff sought relief under Section 301(a), and the court held that the complaint under that section was proper, however, negligent conduct by the union was not sufficient to uphold relief. Plaintiff also asserted what was labeled a separate theory of recovery—a recovery based on breach of the collective bargaining agreement. The court stated: “The right of an employee to sue his union under section 301(a) is limited to those cases wherein there has been a breach of duty of fair representation by the union . . Collective bargaining agreements are unique in nature, and the current limitations on the employee’s right to sue under section 301(a) are not so restrictive as substantially to impair his protective remedies.” 492 F.2d at 12, footnote 4. (Emphasis added). The remedy of fair representation is broad and where it flows from a collective bargaining agreement, the Ninth Circuit intimates that it is exclusive. . Negligence on the part of the union is insufficient to impose liability for breach of a duty of fair representation. Dente v. International Org. of Masters, Mates & P., Loc. 90, supra; Brough v. United Steelworkers of America, AFL-CIO, supra; Helton v. Hake, supra. See also: Vaca v. Sipes, supra; Beriault v. Local 40, Super Cargoes & Check, of I.L. & W.U., supra. . Examination of Article IX entitled “Safety and Health” reveals that a union member’s rights, as well as the union’s rights regarding results of an inspection are rather limited. The mine" } ]

[ { "docid": "18458983", "title": "", "text": "economic incentive to do so. The position here urged by plaintiff is not needed to enable a licensee to attack a patent’s validity. It is one thing to say that a party is not prevented from contesting the validity of a patent merely by entering into a licensing agreement. It is quite another to allow one, freed of the barrier of licensee estoppel, to commence litigation with a full opportunity for a trial on the issues of validity and infringement, to consent to an adverse adjudication on both issues and then for him cavalierly to ignore the consequences of the decree based on such consent the minute he leaves the courthouse. The decree under that theory is merely a scrap of paper. In this court’s view, a balancing of the relevant public interest factors requires that consent decrees containing adjudications of validity and infringement, entered into without collusion, after the litigants have had the opportunity for pretrial discovery and a trial on the merits, be accorded res judicata effect. Such decrees should be of no less binding force than a judgment of validity and infringement entered after a trial on the merits. To hold otherwise would permit abuse of the judicial process, waste of judicial resources and reward questionable ethical conduct. These are all matters which also concern the public interest. To adopt the plaintiff’s position would force every patent validity and infringement suit to a trial on the merits to assure a res judicata effect. It would discourage settlement of such litigation, since otherwise there could be no assurance of finality. Must this assurance come only as a result of a trial on the merits so that litigation is compelled to achieve an unassailable position? The public interest is not served by driving a patentee and an alleged infringer into extended litigation of a kind recognized by the Supreme Court as “a very costly process,” entailing “staggering” financial burdens upon the respective litigants where, even in a non jury trial, “an inordinate amount of trial time” is required. “The general rule of res judicata applies to repetitious suits involving" } ]

[ { "docid": "19999166", "title": "", "text": "is indeed a difficult assessment to make, this court is inclined to agree with the view that: “The danger of some extension of unwarranted monopolies is outweighed, . by the threats to enforcement of valid patents and proliferation of expensive and time consuming litigation necessarily following upon denial of the usual res judicata effect to such decrees.” Wallace Clark & Co., Inc. v. Acheson Industries, Inc., 532 F.2d 846, 849 (2nd Cir. 1976); and see Schlegel Manufacturing Co. v. USM Corp., 525 F.2d 775 (6th Cir. 1975) Moreover, unlike in Lear it does not appear in this case that the juxtaposed policies are necessarily in direct conflict. More specifically, a persuasive argument can be made that the public interest in close scrutiny of patents would in itself be better served by affording res judicata effect to such a consent decree. It seems somewhat anomalous to strive to free useful ideas from the constraints of invalid patents by providing interested parties with a convenient means of postponing adjudication which might achieve such a result. As the court said in Schlegel, supra, 525 F.2d at 781: “The public interest requires that an invalid patent be stripped of its monopoly, and at as early a date as possible. When a consent decree is to be given res judicata effect, litigants are encouraged to litigate the issue of validity rather than foreclosing themselves by a consent decree. If they were given a second chance to litigate the issue of validity, alleged infringers might well accept a license under a consent decree and forego an attack on validity until favored by a stronger financial position, or until threatened by other manufacturers who were not paying royalties. By giving res judicata effect to consent decrees this court protects the public interest in that an alleged infringer is deprived of a judicial device which could be used to postpone and delay a final adjudication of validity.” And see Res Judicata Effects of Consent Judgments in Patent Infringement Litigation, 36 Federal Bar Journal 171 (1977). Finally, this court recognizes and dismisses the possibility of adopting a case-by-case approach" }, { "docid": "12770715", "title": "", "text": "limitations on excessive litigation. Id. at 334-349, 91 S.Ct. at 1445-1453, . .” Maxon Premix Burner Co. v. Eclipse Fuel Engineering Co., 471 F.2d 308, 312 (7th Cir. 1972), cert. denied, 410 U.S. 929, 93 S.Ct. 1365, 35 L.Ed.2d 591 (1973). We believe the result we reach gives effect to our deep concern with an efficient but fair administration of justice: To hold otherwise would permit abuse of the judicial process, waste of judicial re sources and reward' questionable ethical conduct. These are all matters which also concern the public interest. To adopt the plaintiffs position would force every patent validity and infringement suit to a trial on the merits to assure a res judicata effect. It would discourage settlement of such litigation, since otherwise there could be no assurance of finality. Wallace Clark & Co. v. Acheson Industries, Inc., 394 F.Supp. 393, 400 (S.D.N.Y.1975), aff’d, 532 F.2d 846 (2d Cir.), cert. denied, 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800 (1976). If encouraging the swift, and decisive removal of artificial barriers to the competition of ideas is the primary policy advocated in Lear, providing opportunities for recurrent, expensive, and duplicative litigation between the same parties is the least effective way to promote such a policy. Second, under our result, the strong interest in voiding meritless patents will be adequately protected. Granting res judicata effect to consent decrees adjudging both validity and infringement does not close courtroom doors to litigation on the issue of patent validity, except as to parties and their privies after they have had an opportunity to litigate the issues fully. The patent is still subject to challenge by third parties interested in the subject matter of the patent, including other licensees who have not yet aired their own challenge to a patent’s validity. Unlike the more broadly preclusive doctrine of licensee estoppel at issue in Lear, the doctrine of res judicata when applied to consent decrees does not affect third parties. Third, adoption of the district court’s and Wikomi II’s position would consign us to an ad hoc determination of the applicability .of the res" }, { "docid": "2201094", "title": "", "text": "litigation on the issue of patent validity, except as to parties or their privies, and only after they have had the opportunity to litigate the issue fully. Third parties are not affected by the consent decree. See, e. g., Annot., 4 A.L.R.Fed. 214, 217 (1970); Boutell v. Volk, 449 F.2d 673, 675 (10th Cir. 1971). The public interest requires that an invalid patent be stripped of its monopoly, and at as early a date as possible. When a consent decree is to be given res judicata effect, litigants are encouraged to litigate the issue of validity rather than foreclosing themselves by a consent decree. If they were given a second change to litigate the issue of validity, alleged infringers might well accept a license under a consent decree and fore-go an attack on validity until favored by a stronger financial position, or until threatened by other manufacturers who were not paying royalties. By giving res judicata effect to consent decrees this court protects the public interest in that an alleged infringer is deprived of a judicial device which could be used to postpone and delay a final adjudication of validity. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, supra, 402 U.S. at 334-48, 91 S.Ct. 1434; Lear, Inc. v. Adkins, supra, 395 U.S. at 683, 89 S.Ct. 1902; Troxel Mfg. Co. v. Schwinn Bicycle Co., supra, 465 F.2d at 1257; see also Ransburg Electro-Coating Corp. v. Spiller & Spiller, Inc., 489 F.2d 974, 978 (7th Cir. 1973). We, therefore, hold that the District Court was correct in ruling that the doctrine of res judicata barred USM from reviving and relitigating the issue of the validity of the Horton patent. III. Contempt The District Court held that USM has violated the permanent injunction issued by that court on February 22, 1972, and is in contempt. The permanent injunction was reaffirmed and ordered to be continued. USM was ordered to account for all profits derived from its sales of the contemptuous construction. We conclude that the findings of infringement are not clearly erroneous and that these findings require affirmance of the" }, { "docid": "12770713", "title": "", "text": "(1976); Broadview Chemical Corp. v. Loctite Corp., 474 F.2d 1391, 1394-95 (2d Cir. 1973); United States ex rel. Shell Oil Co. v. Barco Corp., 430 F.2d 998, 1001-02 (8th Cir. 1970); USM Corp. v. Standard Pressed Steel Co., 453 F.Supp. 743, 747 (N.D.Ill.1978); Langsam, Res Judicata Effects of Consent Judgments in Patent Infringement Litigation, 36 Fed.B.J. 171, 183-84 (1977); Note, “To Bind or Not to Bind\": Bar and Merger Treatment of Consent Decrees in Patent Infringement Litigation, 74 Col.L.Rev. 1322, 1347-50 (1974). For several reasons, foreclosure of a “case-by-case” inquiry into the effect to be given a consent decree adjudging both validity and infringement is not only consistent with but is also the most effective way to enforce the Lear policy of facilitating competitive access to ideas. First, according res judicata effect to consent decrees like the one before us will encourage earlier and more vigorous challenges to the validity of patents. As the Court of Appeals for the Sixth Circuit noted in Schlegel Manufacturing Co. v. USM Corp., The public interest requires that an invalid patent be stripped of its monopoly, and at as early a date as possible. When a consent decree is to be given res judicata effect, litigants are encouraged to litigate the issue of validity rather than foreclosing themselves by a consent decree. If they were given a second chance to litigate the issue of validity, alleged infringers might well accept a license under a consent decree and forego an attack on validity until favored by a stronger financial position, or until threatened by other manufacturers who were not paying royalties. By giving res judicata effect to consent decrees this court protects the public interest in that an alleged infringer is deprived of a judicial device which could be used to postpone and delay a final adjudication of validity. 525 F.2d at 781. Moreover, “[although public policy encourages tests of patent validity, see Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 344-45, 91 S.Ct. 1434, 1450-1451, 28 L.Ed.2d 788, . . . (1971), public policy also favors conservation of judicial time and" }, { "docid": "8836315", "title": "", "text": "citing Blonder-Tongue Laboratories v. University of Illinois Foundation, 402 U.S. 313, 333, 91 S.Ct. 1434, 1445, 28 L.Ed.2d 788 (1971). But plaintiff’s argument, while ingenious, has no application to the facts of this case. In seeking relief from the prospective effect of the consent judgment, defendants made no attempt to invoke collaterally the California judgment to invalidate the Washington court’s decree adjudicating the patents valid. Instead, defendants relied on the subsequent judgment as the materialization of a contingency expressly provided for by paragraph 10 of the parties’ settlement agreement. The relief granted below was founded upon the express agreement of the parties as reflected in the Settlement Agreement; that relief simply holds plaintiff to its bargain and is hardly inconsistent with equitable principles. We thus have no occasion in this case to consider “the inevitable problems that can arise in determining the effect of the determination of [a patent’s] invalidity upon a prior judgment of validity if collateral estoppel is applied to all later suits.” Blumcraft of Pittsburgh v. Kawneer Co., 482 F.2d 542, 549 (5th Cir. 1973). Similarly, there is no merit in plaintiff’s contention that the consensual nature of the Washington judgment somehow precludes relief under Rule 60(b)(5), where otherwise appropriate. Plaintiff contends that the revision of the prospective features of the consent decree impairs the res judicata effect to which such judgments are entitled. It is true that, as a general rule, consent decrees are accorded res judicata effect. See, e. g., Wallace Clark & Co. v. Acheson Industries, 532 F.2d 846 (2d Cir. 1976), cert. denied, 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800 (1976), and cases cited, 532 F.2d at 848. But the revision of the decree exacted by the district court in this case was consistent with the familiar distinction between the conclusive, res judicata effect properly accorded decrees adjudicating accrued rights and those prospective features of a decree “that involve the supervision of changing conduct or conditions and are thus provisional and tentative.” United States v. Swift & Co., supra, 286 U.S. at 114, 52 S.Ct. at 462. As the Court observed" }, { "docid": "22880682", "title": "", "text": "typical situation involving the grant of a license after a patent issues, but also in the case of a pre-issuance licensee, such as in Lear. Id. at 672-74, 89 S.Ct. at 1911-13. With respect to a requirement in the license agreement between Adkins and Lear for payment of royalties until the patent was declared invalid, the Court stated: The parties’ contract, however, is no more controlling on this issue than is the State’s doctrine of estoppel, which is also rooted in contract principles. Id. at 673, 89 S.Ct. at 1912. Thus, broadly speaking, Lear expresses a policy in favor of precluding restrictions on attacks on patent validity. However, the Court in Lear did not deal with the situation where litigation is terminated by a consent decree which by its terms acknowledges a patent’s validity. In such a situation, other public policy considerations come into play, namely, preserving the fi nality of judgments as well as the strong public policy of encouraging settlements. As the district court in this case recognized, there is substantial ground for a difference of opinion, indeed, a conflict in precedent of the circuits, on whether Lear negates the res judicata effect which would otherwise inhere in a consent decree. Compare Massillon, supra at 473; Crane Co. v. Aeroquip Corp., 504 F.2d 1086, 183 USPQ 577 (7th Cir.1974); Kraly v. National Distillers and Chem. Corp., 502 F.2d 1366, 183 USPQ 79 (7th Cir.1974) with American Equipment Corp. v. Wikomi Mfg. Co., 630 F.2d 544, 208 USPQ 465 (7th Cir.1980); Safe Flight Instrument Corp. v. United Control Corp., 576 F.2d 1340, 197 USPQ 849 (9th Cir. 1978); Wallace Clark & Co. v. Acheson Indus., Inc., 532 F.2d 846 (2d Cir.), cert. denied, 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800 reh’g denied, 427 U.S. 908, 96 S.Ct. 3194, 49 L.Ed.2d 1200 (1976). Upon consideration of that issue, as discussed more fully below, we conclude that general principles of res judicata apply, despite the policies favoring challenges to validity expressed in Lear. B. Choice of Law As Hallco correctly points out, the first significant legal question posed by" }, { "docid": "18458986", "title": "", "text": "the settlement agreement was entered into, a different Court of Appeals held that the subject of the settlement did not infringe. The court recognized that enforcement of the settlement contract would result in the payment of damages partly for the use of a device that is outside the scope of the patent. While Lear concluded that federal patent policy requires the abolition of the doctrine of licensee estoppel, the court held “that such policy must occupy a subsidiary position to the fundamental policy favoring the expedient and orderly settlement of disputes and the fostering of judicial economy.” Similarly, in Maxon Premix Burner Co. v. Eclipse Fuel Eng. Co., the court noted that while public policy encourages tests of patent validity, public policy also favors conservation of judicial time and limitations on expensive litigation. Therefore, the court held that a party had waived the right to contest the validity of a patent by raising the issue for the first time in post trial motions after the court had found infringement. The Ninth Circuit, in Sehnitger v. Canoga Electronics Corp., held that a trial on the merits is not required before a judgment of patent validity and infringement is entitled to res judicata effect. The court’s per curiam decision does not so indicate, but an examination by this court of the record in Sehnitger reveals that the prior judgment accorded res judicata effect was obtained by default. The holding in the instant ease follows a fortiorari. To permit plaintiff to reassert in this suit the same claims it advanced in its first action is tantamount to relegating all consent decrees in patent suits of this kind to the status of a voluntary dismissal without prejudice under Rule 41(a) of the Federal Rules of Civil Procedure, with the end result as if the action had not been brought in the first place. At least in the instance of a voluntary dismissal the court may impose terms as a condition thereof to prevent abuse of the judicial process. Under plaintiff’s theory, it could immediately upon the entry of the consent decree commence a second" }, { "docid": "12770709", "title": "", "text": "& Co. v. Acheson Industries, Inc., 532 F.2d 846, 849 (2d Cir.), cert. denied, 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800 (1976) (footnote omitted). To give adequate weight to considerations of public policy, courts, in considering its application to patent litigation, have recognized exceptions to an inflexible view of the res judicata doctrine. To protect the public interest in free circulation of ideas, the doctrine of res judicata has been limited to assure that invalid patents are not used or valid patents misused to acquire monopoly power. Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 669-70, 64 S.Ct. 268, 273, 88 L.Ed. 376 (1944). Res judicata effect will not be accorded to consent decrees containing only a concession of the validity of the patent without an express or inferable acknowledgment of its infringement. Kraly v. National Distillers & Chemical Corp., 502 F.2d 1366, 1368-69 (7th Cir. 1974); Business Forms Finishing Service, Inc. v. Carson, 452 F.2d 70, 75 (7th Cir. 1971); Addressograph-Multigraph Corp. v. Cooper, 156 F.2d 483, 485 (2d Cir. 1946). The distinction drawn between a decree containing merely an adjudication of validity and one establishing both validity and infringement reflects the strategic realities of patent litigation, which often dictate that a defendant readily concede validity in order to avoid a finding of infringement: Courts have agreed that it is unlikely that a party who defends successfully on the issue of infringement will adequately press the issue of invalidity. If the defendant can easily prove that he is not infringing, the hypothetical validity of his opponent’s patent does not concern him. Indeed, a concession of its validity would not prejudice him at all because the patent, even in the absence of such concession, is presumed to be valid. The alleged infringer, therefore, has little incentive to contest a recital of validity. In contrast, the litigation which results in a concession of validity in a decree which adjudicates both infringement and validity is more likely to be genuine because the defendant who is losing on the issue of infringement must contest validity in order to avoid either" }, { "docid": "12770707", "title": "", "text": "whether a prior consent judgment adjudicating infringement as well as validity bars a party to the judgment or its privies from subsequently contesting the validity of the patent. II. In Lear v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969), the Supreme Court overruled the doctrine of licensee estoppel, which barred a patent licensee from contesting the validity of the patent which was the subject of the license. In Lear, there had been no prior suits between the parties concerning the disputed patent. The sole issue before the Court was the relative priority of the principles of contract law upon which licensee estoppel was premised and the public policy in favor of fostering the general competitive use of ideas no longer deserving of patent protection. The Court justified its abrogation of the licensee estoppel doctrine by relying on what it declared to be the need to prevent unwarranted insulation of patents from judicial scrutiny and on its belief that often only licensees have sufficient economic incentive to challenge patent validity. The case before us is quite different from that presented in Lear. Here, the issues to which plaintiff wishes to grant res judicata effect are embodied in a formal consent judgment rather than in a private licensing agreement. Such an order entered upon a consent decree represents a judicial act and is generally held to bar a party or its privies from subsequently relitigating the issues settled by the decree. United States v. Southern Ute Indians, 402 U.S. 159, 174, 91 S.Ct. 1336, 1343, 28 L.Ed.2d 695 (1971); United States v. Swift & Co., 286 U.S. 106, 115, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932); Kiwi Coders Corp. v. Acro Tool & Die Works, 250 F.2d 562, 568 (7th Cir. 1957). See 1B Moore’s Federal Practice 110.409[5]. Although a consent judgment may, in rare cases for overriding public policy reasons, be denied res judicata effect, 1B Moore’s Federal Practice ¶ 0.405[11], we are mindful that “judicial decrees disposing of issues in active litigation cannot be treated as idle ceremonies without denigrating the judicial process.” Wallace Clark" }, { "docid": "22880688", "title": "", "text": "judgment, but only the policies involved in resolving the right of a patent licensee to challenge the validity of the licensed patent in a suit for royalties under the contract. That question puts at odds only the binding effect of contract provisions under state contract law and the federal patent policy favoring free use of ideas rightfully belonging to the public domain: The uncertain status of licensee estop-pel in the case law is a product of judicial efforts to accommodate the competing demands of the common law of contracts and the federal law of patents. On the one hand, the law of contracts forbids a purchaser to repudiate his promises simply because he later becomes dissatisfied with the bargain he has made. On the other hand, federal law requires that all ideas in general circulation be dedicated to the common good unless they are protected by a valid patent. Lear, 395 U.S. at 668, 89 S.Ct. at 1910. The application of res judicata principles, thus, involves a public policy totally absent from Lear. We are aware of no court which has even suggested that Lear abrogates the application of res judicata principles based on a judgment imposed by the court after full litigation. Nevertheless, some courts, like the court here, have held that a consent judgment, unlike an imposed judgment, runs afoul of Lear even with respect to the same cause of action (i.e., a suit on the same device alleged to infringe the same patent) on the theory that Lear precludes parties from removing possible challenges to validity merely by their agreement. Rejecting this theory, the Sixth Circuit stated in Schlegel Mfg. Co. v. USM Corp., 525 F.2d 775, 781, 187 USPQ 417, 422 (6th Cir.1975) cert. denied, 425 U.S. 912, 96 S.Ct. 1509, 47 L.Ed.2d 763 (1976): The public interest requires that an invalid patent be [held invalid] at as early a date as possible. When a consent decree is to be given res judicata effect, litigants are encouraged to litigate the issue of validity rather than foreclosing themselves by a consent decree. If they were given a" }, { "docid": "12770712", "title": "", "text": "408 F.2d 335, 338 (7th Cir. 1969); Kiwi Coders Corp. v. Acro Tool & Die Works, 250 F.2d at 562, 568. However, notwithstanding dictum in Kraly v. National Distillers & Chemical Corp., 502 F.2d 1366, 1368 (7th Cir. 1974), the impact of Lear on “the question . whether a consent judgment adjudicating infringement as well as validity of the patent has not yet been decided by this court.” USM Corp. v. Standard Pressed Steel Co., 524 F.2d 1097, 1098-99 (7th Cir. 1975). The question before us is whether the Brunswick and Kiwi Coders line of eases can withstand the policy imperatives of Lear. We hold that it can. In so deciding, we join the interpretation of Lear adopted by three other Courts of Appeals, by several academic commentators, and most recently by one district court within this circuit. See Wallace Clark & Co. v. Acheson Industries, Inc., 532 F.2d at 849; Schlegel Manufacturing Co. v. USM Corp., 525 F.2d 775, 780-81 (6th Cir. 1975), cert. denied, 425 U.S. 912, 96 S.Ct. 1509, 47 L.Ed.2d 763 (1976); Broadview Chemical Corp. v. Loctite Corp., 474 F.2d 1391, 1394-95 (2d Cir. 1973); United States ex rel. Shell Oil Co. v. Barco Corp., 430 F.2d 998, 1001-02 (8th Cir. 1970); USM Corp. v. Standard Pressed Steel Co., 453 F.Supp. 743, 747 (N.D.Ill.1978); Langsam, Res Judicata Effects of Consent Judgments in Patent Infringement Litigation, 36 Fed.B.J. 171, 183-84 (1977); Note, “To Bind or Not to Bind\": Bar and Merger Treatment of Consent Decrees in Patent Infringement Litigation, 74 Col.L.Rev. 1322, 1347-50 (1974). For several reasons, foreclosure of a “case-by-case” inquiry into the effect to be given a consent decree adjudging both validity and infringement is not only consistent with but is also the most effective way to enforce the Lear policy of facilitating competitive access to ideas. First, according res judicata effect to consent decrees like the one before us will encourage earlier and more vigorous challenges to the validity of patents. As the Court of Appeals for the Sixth Circuit noted in Schlegel Manufacturing Co. v. USM Corp., The public interest requires that an" }, { "docid": "12770716", "title": "", "text": "competition of ideas is the primary policy advocated in Lear, providing opportunities for recurrent, expensive, and duplicative litigation between the same parties is the least effective way to promote such a policy. Second, under our result, the strong interest in voiding meritless patents will be adequately protected. Granting res judicata effect to consent decrees adjudging both validity and infringement does not close courtroom doors to litigation on the issue of patent validity, except as to parties and their privies after they have had an opportunity to litigate the issues fully. The patent is still subject to challenge by third parties interested in the subject matter of the patent, including other licensees who have not yet aired their own challenge to a patent’s validity. Unlike the more broadly preclusive doctrine of licensee estoppel at issue in Lear, the doctrine of res judicata when applied to consent decrees does not affect third parties. Third, adoption of the district court’s and Wikomi II’s position would consign us to an ad hoc determination of the applicability .of the res judicata doctrine. For example, in the present suit, the court would be forced to consider the motivation of Wikomi I’s chief executive in accepting the consent decree. Wikomi II has argued that the decree should not be read to represent a binding determination of validity and infringement because at the time it was entered the executive was in deteriorating health and was anxious “in any way he possibly could to extricate his company from patent litigation which was hindering his efforts to sell the company. It is possible to imagine an endless .list of such subjective and elusive factors, which under Wikomi II’s argument would have to be evaluated before according res judicata effect to a decree. Included in the list might be the extent to which discovery had advanced in the prior proceedings, the degree of judicial supervision of presettlement negotiations, the remaining life of the patent at the time of the decree, and the size or burden of any royalty payments established by the decree or by a contemporaneous license agreement. This “case-by-case”" }, { "docid": "8836316", "title": "", "text": "(5th Cir. 1973). Similarly, there is no merit in plaintiff’s contention that the consensual nature of the Washington judgment somehow precludes relief under Rule 60(b)(5), where otherwise appropriate. Plaintiff contends that the revision of the prospective features of the consent decree impairs the res judicata effect to which such judgments are entitled. It is true that, as a general rule, consent decrees are accorded res judicata effect. See, e. g., Wallace Clark & Co. v. Acheson Industries, 532 F.2d 846 (2d Cir. 1976), cert. denied, 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800 (1976), and cases cited, 532 F.2d at 848. But the revision of the decree exacted by the district court in this case was consistent with the familiar distinction between the conclusive, res judicata effect properly accorded decrees adjudicating accrued rights and those prospective features of a decree “that involve the supervision of changing conduct or conditions and are thus provisional and tentative.” United States v. Swift & Co., supra, 286 U.S. at 114, 52 S.Ct. at 462. As the Court observed in System Federation v. Wright, supra, 364 U.S. at 647-48, 81 S.Ct. at 371: “A balance must ... be struck between the policies of res judicata and the right of the court to apply modified measures to changed circumstances.” Here, where the possibility of changed circumstances was expressly provided for by the very terms of the parties’ Settlement Agreement, we are clear that the district judge did not abuse his discretion in modifying the prospective features of the decree to conform thereto. However, we are also clear that the district judge should have granted defendants’ motion in toto. The Settlement Agreement clearly and unambiguously covers all three patents, not simply the 540 patent. Not only does the recital (quoted earlier) in the Settlement Agreement state that the term “540” was intended to cover the other two patents and indicate that it was merely a shorthand method of referring to all patents in suit, but paragraph 10 is also consistent with such an intent: “[u]pon the expiration of patent 3,043,540 or if patent 3,043,540 is held" }, { "docid": "2201092", "title": "", "text": "a fully litigated result. This would seem to be the logical extension of denying res judicata effect to a consent decree. This court has not recognized such a difference previously, see Warner v. Tennessee Products Corp., supra, 57 F.2d 642 (6th Cir.), cert. denied, 287 U.S. 632, 53 S.Ct. 83, 77 L.Ed. 548 (1932). Even though the degree of judicial involvement is different between a consent decree and a litigated result, we are not prepared to find that judicial involvement in a consent decree is so inconsequential as to justify different treatment. We stated in Wadsworth Electric Mfg. Co. v. Westinghouse Electric & Mfg. Co., 71 F.2d 850, 851-52 (6th Cir. 1934), as follows: Were it permissible upon every proceeding in contempt to again challenge the validity of the claims, and to reopen issues already decided, such practice would be subversive, if not indeed wholly destructive, of the plenary-power of the court to enforce its decrees, and to reopen questions of validity upon an appeal from a contempt order would be to invite all defeated litigants in patent infringement suits to defy injunctional orders, and by such defiance to seek review of adjudicated issues not otherwise open to them. In United States v. Swift & Co., 286 U.S. 106, 115, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932), Mr. Justice Cardozo said: “We reject the argument . . . that a decree entered upon consent is to be treated as a contract and not as a judicial act.” Looking to the rationale of Lear, we note that there is a significant difference between the effect of a consent decree and the doctrine of licensee estoppel. The parties to the patent suit are entitled to a full and fair hearing on the merits of the case up until the time a consent decree is entered. The doctrine of licensee estoppel closed the doors of the courts to a large group of parties who had sufficient interest in the patent to challenge its validity. By giving res judicata effect to consent decrees, we do not close the doors of the courts to" }, { "docid": "19124147", "title": "", "text": "and acknowledged that the patent was infringed by certain products manufactured or sold by Fibertec. RudkinWiley, Buckley and Fibertec were all named parties in this Consent Judgment, which stated: IT IS HEREBY ORDERED AND ADJUDGED THAT:.... 2. United States Letters' Patent No. 4,245,862 of Frank T. Buckley, Jr., entitled “Drag Reducer for Land Vehicles,” is valid and enforceable, and has been infringed by defendant’s manufacture and/or sale of the products accused of infringement in this action. See PlaintifPs. Exhibit 7, Speranza Deel. Plaintiff notes that not all of the fairings that Plaintiff alleges to be infringing in the immediate action were addressed by the Fibertec action’s Consent Judgment. Plaintiff specifically states that this Motion “is only seeking a partial summary judgment of infringement as to. those Fibertec fairings previously adjudicated as infringing the ’862 Patent.” Plaintiffs Memorandum in Support of Motion- at 26, ft. 17. Case law in the Fourth Circuit and elsewhere clearly holds that a consent judgment which provides that a patent is valid and infringed is res judicata, and that such a judgment bars the parties to the judgment, or their privies, from relitigatirig validity, enforceability, or infringement in subsequent legal proceedings. Swan Carburetor Co. v. Nash Motors Co., 25 F.Supp. 21, 22-23 (D.Md.), aff'd, 98 F.2d 115 (4th Cir.1938). Other Circuits have adopted similar rules. See Interdynamics, Inc. v. Firma Wolf, 653 F.2d 93, 97 (3d Cir.), cert. denied 454 U.S. 1092, 102 S.Ct. 658, 70 L.Ed.2d 631 (1981); American Equip. Corp. v. Wikomi Mfg. Co., 630 F.2d 544, 546-48 (7th Cir.1980); Wallace Clark & Co. v. Acheson Indus., Inc., 532 F.2d 846, 848-49 (2d Cir.), cert denied, 425 Ú.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800 (1976); Schlegel Mfg. Co. v. USM Corp., 525 F.2d 775, 778-81 (6th Cir.1975), cert. denied, 425 U.S. 912, 96 S.Ct. 1509, 47 L.Ed.2d 763 (1976). As Plaintiff notes in his Reply, Defendants have not challenged the validity of this legal standard. Rather, Defendants argue that res judicata does not apply because “the suit is not between the same parties and does not involve the same cause of action involved" }, { "docid": "12770714", "title": "", "text": "invalid patent be stripped of its monopoly, and at as early a date as possible. When a consent decree is to be given res judicata effect, litigants are encouraged to litigate the issue of validity rather than foreclosing themselves by a consent decree. If they were given a second chance to litigate the issue of validity, alleged infringers might well accept a license under a consent decree and forego an attack on validity until favored by a stronger financial position, or until threatened by other manufacturers who were not paying royalties. By giving res judicata effect to consent decrees this court protects the public interest in that an alleged infringer is deprived of a judicial device which could be used to postpone and delay a final adjudication of validity. 525 F.2d at 781. Moreover, “[although public policy encourages tests of patent validity, see Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 344-45, 91 S.Ct. 1434, 1450-1451, 28 L.Ed.2d 788, . . . (1971), public policy also favors conservation of judicial time and limitations on excessive litigation. Id. at 334-349, 91 S.Ct. at 1445-1453, . .” Maxon Premix Burner Co. v. Eclipse Fuel Engineering Co., 471 F.2d 308, 312 (7th Cir. 1972), cert. denied, 410 U.S. 929, 93 S.Ct. 1365, 35 L.Ed.2d 591 (1973). We believe the result we reach gives effect to our deep concern with an efficient but fair administration of justice: To hold otherwise would permit abuse of the judicial process, waste of judicial re sources and reward' questionable ethical conduct. These are all matters which also concern the public interest. To adopt the plaintiffs position would force every patent validity and infringement suit to a trial on the merits to assure a res judicata effect. It would discourage settlement of such litigation, since otherwise there could be no assurance of finality. Wallace Clark & Co. v. Acheson Industries, Inc., 394 F.Supp. 393, 400 (S.D.N.Y.1975), aff’d, 532 F.2d 846 (2d Cir.), cert. denied, 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800 (1976). If encouraging the swift, and decisive removal of artificial barriers to the" }, { "docid": "12770708", "title": "", "text": "before us is quite different from that presented in Lear. Here, the issues to which plaintiff wishes to grant res judicata effect are embodied in a formal consent judgment rather than in a private licensing agreement. Such an order entered upon a consent decree represents a judicial act and is generally held to bar a party or its privies from subsequently relitigating the issues settled by the decree. United States v. Southern Ute Indians, 402 U.S. 159, 174, 91 S.Ct. 1336, 1343, 28 L.Ed.2d 695 (1971); United States v. Swift & Co., 286 U.S. 106, 115, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932); Kiwi Coders Corp. v. Acro Tool & Die Works, 250 F.2d 562, 568 (7th Cir. 1957). See 1B Moore’s Federal Practice 110.409[5]. Although a consent judgment may, in rare cases for overriding public policy reasons, be denied res judicata effect, 1B Moore’s Federal Practice ¶ 0.405[11], we are mindful that “judicial decrees disposing of issues in active litigation cannot be treated as idle ceremonies without denigrating the judicial process.” Wallace Clark & Co. v. Acheson Industries, Inc., 532 F.2d 846, 849 (2d Cir.), cert. denied, 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800 (1976) (footnote omitted). To give adequate weight to considerations of public policy, courts, in considering its application to patent litigation, have recognized exceptions to an inflexible view of the res judicata doctrine. To protect the public interest in free circulation of ideas, the doctrine of res judicata has been limited to assure that invalid patents are not used or valid patents misused to acquire monopoly power. Mercoid Corp. v. Mid-Continent Investment Co., 320 U.S. 661, 669-70, 64 S.Ct. 268, 273, 88 L.Ed. 376 (1944). Res judicata effect will not be accorded to consent decrees containing only a concession of the validity of the patent without an express or inferable acknowledgment of its infringement. Kraly v. National Distillers & Chemical Corp., 502 F.2d 1366, 1368-69 (7th Cir. 1974); Business Forms Finishing Service, Inc. v. Carson, 452 F.2d 70, 75 (7th Cir. 1971); Addressograph-Multigraph Corp. v. Cooper, 156 F.2d 483, 485 (2d Cir. 1946)." }, { "docid": "2056519", "title": "", "text": "modification, such a requirement would significantly diminish the force of a consent decree as a judgment of the court. Id. In each new action, the patentee would be put to the expense of reestablishing the scope of its patent and the patent’s congruence with the allegedly infringing product. If these essential aspects of a patentee’s rights could be reopened at the option of an infringer, patentees would lack incentive to enter into settlements. Moreover, there would result a. “subversion of the deeply instilled policy of settlement of legitimate disputes . . . . ” Ransburg Electro-Coating Corp. v. Spiller & Spiller, Inc., 489 F.2d 974, 978 (7th Cir. 1973) (enforcing a contractual settlement of an infringement suit). This could lead to more litigation because infringers would have an incentive to enter a consent decree and attempt to relitigate issues in a contempt proceeding. Schlegel Mfg. Co. v. USM Corp., 525 F.2d 775, 782 (6th Cir. 1975), cert, denied, 425 U.S. 912, 96 S.Ct. 1509, 47 L.Ed.2d 763 (1976). Such relitigation would frustrate the general public interest in finality of litigation, and in vindicating judicial authority. See United States ex rel. Shell Oil Co. v. Barco Corp., 430 F.2d 998, 1002 (8th Cir. 1970). These concerns in protecting settlements have led courts faced with a prior consent decree in a patent infringement action to place their principal reliance on effectuating the doctrine of res judicata. The decision in Lear, Inc. v. Adkins, supra, has been held inapplicable. As one court noted: No consent decree was even involved in Lear .... [Lear's] derogation of contract law in favor of patent law is a far cry from allowing identical parties to reopen valid judicial [consent] decrees at their mere whim .... In the case of a consent decree, ... we only look to the equities involved as to the particular parties and the public interest is not at stake. Schlegel Mfg. Co. v. King Aluminum Corp., 369 F.Supp. 650, 652 (S.D.Ohio 1973). See also Wallace Clark & Co. v. Acheson Industries, Inc., 394 F.Supp. 393 (S.D.N.Y.1975). The significant public interest represented by the" }, { "docid": "22880689", "title": "", "text": "aware of no court which has even suggested that Lear abrogates the application of res judicata principles based on a judgment imposed by the court after full litigation. Nevertheless, some courts, like the court here, have held that a consent judgment, unlike an imposed judgment, runs afoul of Lear even with respect to the same cause of action (i.e., a suit on the same device alleged to infringe the same patent) on the theory that Lear precludes parties from removing possible challenges to validity merely by their agreement. Rejecting this theory, the Sixth Circuit stated in Schlegel Mfg. Co. v. USM Corp., 525 F.2d 775, 781, 187 USPQ 417, 422 (6th Cir.1975) cert. denied, 425 U.S. 912, 96 S.Ct. 1509, 47 L.Ed.2d 763 (1976): The public interest requires that an invalid patent be [held invalid] at as early a date as possible. When a consent decree is to be given res judicata effect, litigants are encouraged to litigate the issue of validity rather than foreclosing themselves by a consent decree. If they were given a second chance to litigate the issue of validity, alleged infringers might well accept a license under a consent decree and forego an attack on validity until favored by a stronger finan cial position, or until threatened by other manufacturers who were not paying royalties. By giving res judicata effect to consent decrees this court protects the public interest in that an alleged infringer is deprived of a judicial device which could be used to postpone and delay a final adjudication. See also American Equip., 630 F.2d at 548, 208 USPQ at 469. We agree with this analysis. Moreover, the Federal Circuit has repeatedly expressed the view that there is a strong public interest in settlement of patent litigation. See Hartley v. Mentor Corp., 869 F.2d 1469, 1473 n. 5, 10 USPQ2d 1138, 1142 n. 5 (Fed.Cir.1989); Hemstreet v. Speigel, Inc., 851 F.2d 348, 350, 7 USPQ2d 1502, 1504 (Fed.Cir.1988). A binding consent judgment encourages patent owners to agree to settlement and to remove its force would have an adverse effect on settlement negotiations. See id." }, { "docid": "2201093", "title": "", "text": "litigants in patent infringement suits to defy injunctional orders, and by such defiance to seek review of adjudicated issues not otherwise open to them. In United States v. Swift & Co., 286 U.S. 106, 115, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932), Mr. Justice Cardozo said: “We reject the argument . . . that a decree entered upon consent is to be treated as a contract and not as a judicial act.” Looking to the rationale of Lear, we note that there is a significant difference between the effect of a consent decree and the doctrine of licensee estoppel. The parties to the patent suit are entitled to a full and fair hearing on the merits of the case up until the time a consent decree is entered. The doctrine of licensee estoppel closed the doors of the courts to a large group of parties who had sufficient interest in the patent to challenge its validity. By giving res judicata effect to consent decrees, we do not close the doors of the courts to litigation on the issue of patent validity, except as to parties or their privies, and only after they have had the opportunity to litigate the issue fully. Third parties are not affected by the consent decree. See, e. g., Annot., 4 A.L.R.Fed. 214, 217 (1970); Boutell v. Volk, 449 F.2d 673, 675 (10th Cir. 1971). The public interest requires that an invalid patent be stripped of its monopoly, and at as early a date as possible. When a consent decree is to be given res judicata effect, litigants are encouraged to litigate the issue of validity rather than foreclosing themselves by a consent decree. If they were given a second change to litigate the issue of validity, alleged infringers might well accept a license under a consent decree and fore-go an attack on validity until favored by a stronger financial position, or until threatened by other manufacturers who were not paying royalties. By giving res judicata effect to consent decrees this court protects the public interest in that an alleged infringer is deprived of a" } ]

[ { "docid": "22691322", "title": "", "text": "outset, I note my agreement that Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), supports the conclusion that the issue presented in this appeal is final for review. 28 U. S. C. § 1257. In Time, Inc. v. Hill, 385 U. S. 374 (1967), the Court considered a state cause of action that afforded protection against unwanted-publicity rather than damage to reputation through the publication of false statements of fact. In such actions, however, the State also recognized that truth was an absolute defense against liability for publication of reports concerning newsworthy people or events. Id., at 383. The Court’s abandonment of the “matter of general or public interest” standard as the determinative factor for deciding whether to apply the New York Times malice standard to defamation litigation brought by private individuals, Gertz v. Robert Welch, Inc., 418 U. S. 323, 346 (1974); see also Rosenbloom v. Metromedia, Inc., 403 U. S. 29, 79 (1971) (Marshall, J., dissenting), calls into question the conceptual basis of Time, Inc. v. Hill. In neither Gertz nor our more recent decision in Cantrell v. Forest City Publishing Co., 419 U. S. 245 (1974), however, have we been called upon to determine whether a State may constitutionally apply a more relaxed standard of liability under a false-light theory of invasion of privacy. See id., at 250-251; Gertz, supra, at 348; ante, at 490 n. 19. Our recent opinions dealing with First Amendment limitations on state defamation actions all center around the common premise that while the Constitution requires that false ideas be corrected only by the competitive impact of other ideas, the First Amendment affords no constitutional protection for false statements of fact. See Gertz, supra, at 339-340. Beginning with this common assumption, the decisions of this Court have undertaken to identify a standard of care with respect to the truth of the published facts that will afford the required “breathing space” for First Amendment values. Mr. Justice Douglas, concurring in the judgment. I agree that the state judgment is “final,” and I also agree in the reversal of the Georgia court." } ]

[ { "docid": "22970784", "title": "", "text": "directed specifically at speech itself. Because I do not believe the fact of general applicability to be dispositive, I find it necessary to articulate, measure, and compare the competing interests involved in any given case to determine the legitimacy of burdening constitutional interests, and such has been the Court’s recent practice in publication cases. See Hustler Magazine, Inc. v. Falwell, 485 U. S. 46 (1988); Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562 (1977). Nor can I accept the majority’s position that we may dispense with balancing because the burden on publication is in a sense “self-imposed” by the newspaper’s voluntary promise of confidentiality. See ante, at 671. This suggests both the possibility of waiver, the requirements for which have not been met here, see, e. g., Curtis Publishing Co. v. Butts, 388 U. S. 130, 145 (1967), as well as a conception of First Amendment rights as those of the speaker alone, with a value that may be measured without reference to the importance of the information to public discourse. But freedom of the press is ultimately founded on the value of enhancing such discourse for the sake of a citizenry better informed and thus more prudently self-governed. “[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.” First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 783 (1978). In this context, “‘[i]t is the right of the [public], not the right of the [media], which is paramount,’” CBS, Inc. v. FCC, 453 U. S. 367, 395 (1981) (emphasis omitted) (quoting Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969)), for “[without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally,” Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 492 (1975); cf. Richmond Newspapers, Inc. v. Virginia, 448 U. S. 555, 573 (1980); New York Times Co. v. Sullivan, 376" }, { "docid": "22994407", "title": "", "text": "make no law . . . abridging the freedom of speech, or of the press,” has been applied to new circumstances requiring different adaptations of prior principles and precedents. The essence of that protection is that Congress may not regulate speech except in cases of extraordinary need and with the exercise of a degree of care that we have not elsewhere required. See, e. g., Schenck v. United States, 249 U. S. 47, 51-52 (1919); Abrams v. United States, 250 U. S. 616, 627-628 (1919) (Holmes, J., dissenting); West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 639 (1943); Texas v. Johnson, 491 U. S. 397, 418-420 (1989). At the same time, our cases have not left Congress or the States powerless to address the most serious problems. See, e. g., Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976); FCC v. Pacifica Foundation, 438 U. S. 726 (1978). Over the years, this Court has restated and refined these basic First Amendment principles, adopting them more particularly to the balance of competing interests and the special circumstances of each field of application. See, e. g., New York Times Co. v. Sullivan, 376 U. S. 254 (1964) (allowing criticism of public officials to be regulated by civil libel only if the plaintiff shows actual malice); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974) (allowing greater regulation of speech harming individuals who are not public officials, but still requiring a negligence standard); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) (employing highly flexible standard in response to the scarcity problem unique to over-the-air broadcast); Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221, 231-232 (1987) (requiring “compelling state interest” and a “narrowly drawn” means in context of differential taxation of media); Sable, supra, at 126, 131 (applying “compelling interest,” “least restrictive means,” and “narrowly tailored” requirements to indecent telephone communications); Turner, 512 U. S., at 641 (using “heightened scrutiny” to address content-neutral regulations of cable system broadcasts); Central Hudson Gas & Elec. Corp.," }, { "docid": "22397895", "title": "", "text": "Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); Branzburg v. Hayes, 408 U. S. 665, 707 (1972); New York Times Co. v. United States, 403 U. S. 713 (1971); Mills v. Alabama, 384 U. S. 214, 218-219 (1966); Grosjean v. American Press Co., Inc., 297 U. S. 233, 250 (1936). See also Herbert v. Lando, 441 U. S. 153, 180-199 (1979) (Brennan, J., dissenting in part); Saxbe v. Washington Post Co., 417 U. S. 843, 850 (1974) (Powell, J., dissenting); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U. S. 376, 393 (1973) (Burger, C. J., dissenting); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969); Time, Inc. v. Hill, 385 U. S. 374, 389 (1967); Stewart, “Or of the Press,” 26 Hastings L. J. 631 (1975). In light of the “increasingly prominent role of mass media in our society, and the awesome power it has placed in the hands of a select few,” Gertz, 418 U. S., at 402 (White, J., dissenting), protection for the speech of nonmedia defendants is essential to ensure a diversity of perspectives. See J. Barron, Freedom of the Press for Whom? (1973). “[U]ninhibited, robust and wide-open” debate, New York Times Co. v. Sullivan, 376 U. S., at 270, among nonmedia speakers is as essential to the fostering and development of an individual’s political thought as is such debate in the mass media. See J. Klapper, The Effects of Mass Communications (1960). Justice Powell’s opinion does not expressly reject the media/ nonmedia distinction, but does expressly decline to apply that distinction to resolve this case. One searches Gertz in vain for a single word to support the proposition that limits on presumed and punitive damages obtained only when speech involved matters of public concern. Gertz could not have been grounded in such a premise. Distrust of placing in the courts the power to decide what speech was of public concern was precisely the rationale Gertz offered for rejecting the Rosenbloom plurality approach. 418 U. S., at 346. It would have been incongruous for the Court to go" }, { "docid": "23674092", "title": "", "text": "are to take the majority opinion at face value, is one of two disturbing consequences: Either (1) paying for advertising is not speech at all, while such activities as draft card burning, flag burning, armband wearing, public sleeping, and nude dancing are, or (2) compelling payment for third-party communication does not implicate speech, and thus the Government would be free to force payment for a whole variety of expressive conduct that it could not restrict. In either case, surely we have lost our way. See Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y, 447 U. S. 557 (1980) (advertising to promote the use of electricity is speech); First Nat. Bank of Boston v. Bellotti, 435 U. S. 765 (1978) (corporate advertising regarding referendum); Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977) (per curiam) (payment of dues used to engage in speech); Buckley v. Valeo, 424 U. S. 1 (1976) (contributions for political advertising). 2 See Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180 (1997) (coerced carriage of broadcast signals over cable television facilities); Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1 (1986) (coerced inclusion of private messages in utility bill envelopes); PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980) (coerced creation of a speaker’s forum on private property); Abood v. Detroit Bd. of Ed., supra (coerced payment of dues used to engage in speech); Wooley v. Maynard, 430 U. S. 705 (1977) (coerced display of state license plate); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974) (coerced right of reply to newspaper editorials); Wesf Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943) (coerced Pledge of Allegiance). The majority’s grounds for distinguishing certain of our precedents are, to say the least, unpersuasive and contradictory, as Justice Souter’s dissent amply demonstrates. Moreover, the majority’s excessive emphasis on the supposed collectivization of the fruit industry, ante, at 469, 474-477, likewise fails to support its conclusion. Although the Constitution may not “enact Mr. Herbert Spencer’s Social Statics,” Lochner v." }, { "docid": "22791736", "title": "", "text": "a content-based blanket restriction on speech, and, as such, cannot be “properly analyzed as a form of time, place, and manner regulation.” 475 U. S., at 46. See also Boos v. Barry, 485 U. S. 812, 321 (1988) (“Regulations that focus on the direct impact of speech on its audience” are not properly analyzed under Renton); Forsyth County v. Nationalist Movement, 505 U. S. 123, 134 (1992) (“Listeners’ reaction to speech is not a content-neutral basis for regulation”). These precedents, then, surely do not require us to uphold the CDA and are fully consistent with the application of the most stringent review of its provisions. V In Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 557 (1975), we observed that “[e]ach medium of expression ... may present its own problems.” Thus, some of our cases have recognized special justifications for regulation of the broadcast media that are not applicable to other speakers, see Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); FCC v. Pacifica Foundation, 438 U. S. 726 (1978). In these cases, the Court relied on the history of extensive Government regulation of the broadcast medium, see, e. g., Red Lion, 395 U. S., at 399-400; the scarcity of available frequencies at its inception, see, e. g., Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637-638 (1994); and its “invasive” nature, see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 128 (1989). Those factors are not present in cyberspace. Neither before nor after the enactment of the CDA have the vast democratic forums of the Internet been subject to the type of government supervision and regulation that has attended the broadcast industry. Moreover, the Internet is not as “invasive” as radio or television. The District Court specifically found that “[cjommunications over the Internet do not ‘invade’ an individual’s home or appear on one’s computer screen unbidden. Users seldom encounter content ‘by accident.’ ” 929 F. Supp., at 844 (finding 88). It also found that “[ajlmost all sexually explicit images are preceded by warnings as to the content,” and cited testimony" }, { "docid": "22397894", "title": "", "text": "number of subscribers.” Indeed, it would be paradoxical to increase protection to statements injurious to reputation as the size of their audience, and hence their potential to injure, grows. Cf. Keeton v. Hustler Magazine, Inc., 465 U. S. 770, 781 (1984). Owing to transformations in the technological and economic structure of the communications industry, there has been an increasing convergence of what might be labeled “media” and “nonmedia.” Pool, The New Technologies: Promise of Abundant Channels at Lower Cost, in What’s News: The Media in American Society 81, 87 (1981). See also I. Pool, Technologies of Freedom (1983); U. S. Federal Trade Commission, Media Policy Session: Technology and Legal Change (1979); Subcommittee on Telecommunications, Consumer Protection, and Finance of the House Committee on Energy and Commerce, Telecommunications in Transition: The Status of Competition in the Telecommunications Industry, 97th Cong., 1st Sess. (Comm. Print 1981). See, e. g., Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575, 585 (1983); Columbia Broadcasting System, Inc. v. FCC, 453 U. S. 367, 395 (1981); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); Branzburg v. Hayes, 408 U. S. 665, 707 (1972); New York Times Co. v. United States, 403 U. S. 713 (1971); Mills v. Alabama, 384 U. S. 214, 218-219 (1966); Grosjean v. American Press Co., Inc., 297 U. S. 233, 250 (1936). See also Herbert v. Lando, 441 U. S. 153, 180-199 (1979) (Brennan, J., dissenting in part); Saxbe v. Washington Post Co., 417 U. S. 843, 850 (1974) (Powell, J., dissenting); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U. S. 376, 393 (1973) (Burger, C. J., dissenting); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 390 (1969); Time, Inc. v. Hill, 385 U. S. 374, 389 (1967); Stewart, “Or of the Press,” 26 Hastings L. J. 631 (1975). In light of the “increasingly prominent role of mass media in our society, and the awesome power it has placed in the hands of a select few,” Gertz, 418 U. S., at 402 (White, J., dissenting), protection for the speech" }, { "docid": "22682318", "title": "", "text": "be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky, supra, at 572. We have recognized that “the freedom of speech” referred to by the First Amendment does not include a freedom to disregard these traditional limitations. See, e. g., Roth v. United States, 354 U. S. 476 (1957) (obscenity); Beauharnais v. Illinois, 343 U. S. 250 (1952) (defamation); Chaplinsky v. New Hampshire, supra (“ ‘fighting’ words”); see generally Simon & Schuster, supra, at 124 (Kennedy, J., concurring in judgment). Our decisions since the 1960’s have narrowed the scope of the traditional categorical exceptions for defamation, see New York Times Co. v. Sullivan, 376 U. S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974); see generally Milkovich v. Lorain Journal Co., 497 U. S. 1, 13-17 (1990), and for obscenity, see Miller v. California, 413 U. S. 15 (1973), but a limited categorical approach has remained an important part of our First Amendment jurisprudence. We have sometimes said that these categories of expression are “not within the area of constitutionally protected speech,” Roth, supra, at 483; Beauharnais, supra, at 266; Chaplinsky, supra, at 571-572, or that the “protection of the First Amendment does not extend” to them, Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485, 504 (1984); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 124 (1989). Such statements must be taken in context, however, and are no more literally true than is the occasionally repeated shorthand characterizing obscenity “as not being speech at all,” Sunstein, Pornography and the First Amendment, 1986 Duke L. J. 589, 615, n. 46. What they mean is that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content (obscenity, defamation, etc.)— not that they are categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for content discrimination unrelated to their distinctively pro-scribable content. Thus, the government may proscribe libel; but it may not make the further content discrimination of proscribing only" }, { "docid": "22691949", "title": "", "text": "right when it has been asserted by corporations. See, e. g., Times Film Corp. v. Chicago, 365 U. S. 43, 47 (1961); Kingsley Int’l Pictures Corp. v. Regents, 360 U. S. 684, 688 (1959); Joseph Burstyn, supra. In Grosjean v. American Press Co., 297 U. S. 233, 244 (1936), the Court rejected the very reasoning adopted by the Supreme Judicial Court and did not rely on the corporation's property rights under the Fourteenth Amendment in sustaining its freedom of speech. Yet appellee suggests that First Amendment rights generally have been afforded only to corporations engaged in the communications business or through which individuals express themselves, and the court below apparently accepted the “materially affecting” theory as the conceptual common denominator between appellee’s position and the precedents of this Court. It is true that the “materially affecting” requirement would have been satisfied in the Court’s decisions affording protection to the speech of media corporations and corporations otherwise in the business of communication or entertainment, and to the commercial speech of business corporations. See cases cited in n. 14, supra. In such cases, the speech would be connected to the corporation’s business almost by definition. But the effect on the business of the corporation was not the governing rationale in any of these decisions. None of them mentions, let alone attributes significance to, the fact that the subject of the challenged communication materially affected the corporation’s business. The press cases emphasize the special and constitutionally recognized role of that institution in informing and educating the public, offering criticism, and providing a forum for discussion and debate. Mills v. Alabama, 384 U. S., at 219; see Saxbe v. Washington Post Co., 417 U. S. 843, 863-864 (1974) (Powell, J., dissenting). But the press does not have a monopoly on either the First Amendment or the ability to enlighten. Cf. Buckley v. Valeo, 424 U. S., at 51 n. 56; Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 389-390 (1969); New York Times Co. v. Sullivan, 376 U. S. 254, 266 (1964); Associated Press v. United States, 326 U. S. 1, 20" }, { "docid": "22738333", "title": "", "text": "the Government deprives the disadvantaged person or class of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice. The Government may not by these means deprive the public of the right and privilege to determine for itself what speech and speakers are worthy of consideration. The First Amendment protects speech and speaker, and the ideas that flow from each. The Court has upheld a narrow class of speech restrictions that operate to the disadvantage of certain persons, but these rulings were based on an interest in allowing governmental entities to perform their functions. See, e. g., Bethel School Dist. No. 403 v. Fraser, 478 U. S. 675, 683 (1986) (protecting the “function of public school education”); Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U. S. 119, 129 (1977) (furthering “the legitimate penological objectives of the corrections system” (internal quotation marks omitted)); Parker v. Levy, 417 U. S. 733, 759 (1974) (ensuring “the capacity of the Government to discharge its [military] responsibilities” (internal quotation marks omitted)); Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 557 (1973) (“[F]ederal service should depend upon meritorious performance rather than political service”). The corporate independent expenditures at issue in this ease, however, would not interfere with governmental functions, so these cases are inapposite. These precedents stand only for the proposition that there are certain governmental functions that cannot operate without some restrictions on particular kinds of speech. By contrast, it is inherent in the nature of the political process that voters must be free to obtain information from diverse sources in order to determine how to cast their votes. At least before Austin, the Court had not allowed the exclusion of a class of speakers from the general public dialogue. We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion. A 1 The Court has recognized that First Amendment protection extends to corporations. Bellotti, supra, at 778, n. 14 (citing Limnark Associates," }, { "docid": "22729490", "title": "", "text": "Juris. Statement 14a. The Supreme Court of New Jersey denied further review. Id., at 17a, 18a. Appellants appealed to this Court. Their principal claim is that the imposition of criminal penalties under an ordinance prohibiting all live entertainment, including nonob-scene, nude dancing, violated their rights of free expression guaranteed by the First and Fourteenth Amendments of the United States Constitution. We noted probable jurisdiction, 449 U. S. 897 (1980), and now set aside appellants’ convictions. I As the Mount Ephraim Code has been construed by the New Jersey courts — a construction that is binding upon us — ■ “live entertainment,” including nude dancing, is “not a permitted use in any establishment” in the Borough of Mount Ephraim. App. to Juris. Statement 12a. By excluding live entertainment throughout the Borough, the Mount Ephraim ordinance prohibits a wide range of expression that has long been held to be within the protections of the First and Fourteenth Amendments. Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952); Schacht v. United States, 398 U. S. 58 (1970); Jenkins v. Georgia, 418 U. S. 153 (1974); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975); Erznoznik v. City of Jacksonville, 422 U. S. 205 (1975); Doran v. Salem Inn, Inc. 422 U. S. 922 (1975). See also California v. LaRue, 409 U. S. 109, 118 (1972); Young v. American Mini Theatres, Inc., supra, at 61, 62. Nor may an entertainment program be prohibited solely because it displays the nude human figure. “[N]udity alone” does not place otherwise protected material outside the mantle of the First Amendment. Jenkins v. Georgia, supra, at 161; Southeastern Promotions, Ltd. v. Conrad, supra; Erznoznik v. City of Jacksonville, supra, at 211-212, 213. Furthermore, as the state courts in this case recognized, nude dancing is not without its First Amendment protections from official regulation. Doran v. Salem Inn, Inc., supra; Southeastern Promotions, Ltd. v. Conrad," }, { "docid": "22691971", "title": "", "text": "informed discussion, although the two often converge. See G. Gunther, Cases and Materials on Constitutional Law 1044 (9th ed. 1975); T. Emerson, The System of Freedom of Expression 6 (1970). The Court has declared, however, that “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Garrison v. Louisiana, 379 U. S. 64, 74-75 (1964). And self-govenment suffers when those in power suppress competing views on public issues “from diverse and antagonistic sources.” Associated Press v. United States, 326 U. S. 1, 20 (1945), quoted in New York Times Co. v. Sullivan, 376 U. S. 254, 266 (1964). Nor is there any occasion to consider in this case whether, under different circumstances, a justification for a restriction on speech that would be inadequate as applied to individuals might suffice to sustain the same restriction as applied to corporations, unions, or like entities. The Massachusetts court did not go so far as to accept appellee’s argument that corporations, as creatures of the State, have only those rights granted them by the State, See Brief for Appellee 4, 23-25. Cf. Mr. Justice White’s dissent, post, at 809; Mr. Justice Rehnquist’s dissent, post, p. 822. The court below recognized that such an extreme position could not be reconciled either with the many decisions holding state laws invalid under the Fourteenth Amendment when they infringe protected speech by corporate bodies, e. g., Linmark Associates, Inc. v. Township of Willingboro, 431 U. S. 85 (1977); Time, Inc. v. Firestone, 424 U. S. 448 (1976); Doran v. Salem Inn, Inc., 422 U. S. 922 (1975); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); New York Times Co. v. United States, 403 U. S. 713 (1971); Time, Inc. v. Hill, 385 U. S. 374 (1967); New York Times Co. v. Sullivan, supra; Kingsley Int’l Pictures Corp. v. Regents, 360 U. S. 684 (1959); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952), or with deeiáons affording corporations the protection" }, { "docid": "22729491", "title": "", "text": "live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952); Schacht v. United States, 398 U. S. 58 (1970); Jenkins v. Georgia, 418 U. S. 153 (1974); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975); Erznoznik v. City of Jacksonville, 422 U. S. 205 (1975); Doran v. Salem Inn, Inc. 422 U. S. 922 (1975). See also California v. LaRue, 409 U. S. 109, 118 (1972); Young v. American Mini Theatres, Inc., supra, at 61, 62. Nor may an entertainment program be prohibited solely because it displays the nude human figure. “[N]udity alone” does not place otherwise protected material outside the mantle of the First Amendment. Jenkins v. Georgia, supra, at 161; Southeastern Promotions, Ltd. v. Conrad, supra; Erznoznik v. City of Jacksonville, supra, at 211-212, 213. Furthermore, as the state courts in this case recognized, nude dancing is not without its First Amendment protections from official regulation. Doran v. Salem Inn, Inc., supra; Southeastern Promotions, Ltd. v. Conrad, supra; California v. LaRue, supra. Whatever First Amendment protection should be extended to nude dancing, live or on film, however, the Mount Ephraim ordinance prohibits all live entertainment in the Borough: no property in the Borough may be principally used for the commercial production of plays, concerts, musicals, dance, or any other form of live entertainment. Because appellants’ claims are rooted in the First Amendment, they are entitled to rely on the impact of the ordinance on the expressive activities of others as well as their own. “Because overbroad laws, like vague ones, deter privileged activities], our cases firmly establish appellant’s standing to raise an overbreadth challenge.” Grayned v. City of Rockford, 408 U. S. 104, 114 (1972). II The First Amendment requires that there be sufficient justification for the exclusion of a broad category of protected expression as one of the permitted commercial uses in the Borough. The justification does not appear on the face of the ordinance since the ordinance itself is ambiguous with respect to whether live entertainment is permitted: § 99-15B" }, { "docid": "22691972", "title": "", "text": "See Brief for Appellee 4, 23-25. Cf. Mr. Justice White’s dissent, post, at 809; Mr. Justice Rehnquist’s dissent, post, p. 822. The court below recognized that such an extreme position could not be reconciled either with the many decisions holding state laws invalid under the Fourteenth Amendment when they infringe protected speech by corporate bodies, e. g., Linmark Associates, Inc. v. Township of Willingboro, 431 U. S. 85 (1977); Time, Inc. v. Firestone, 424 U. S. 448 (1976); Doran v. Salem Inn, Inc., 422 U. S. 922 (1975); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); New York Times Co. v. United States, 403 U. S. 713 (1971); Time, Inc. v. Hill, 385 U. S. 374 (1967); New York Times Co. v. Sullivan, supra; Kingsley Int’l Pictures Corp. v. Regents, 360 U. S. 684 (1959); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952), or with deeiáons affording corporations the protection of constitutional guarantees other than the First Amendment. E. g., United States v. Martin Linen Supply Co., 430 U. S. 564 (1977) (Fifth Amendment double jeopardy); G. M. Leasing Corp. v. United States, 429 U. S. 338, 353 (1977) (Fourth Amendment). In any event, appellee’s argument is inapplicable to two of the appellants. National banks are creatures of federal law and in strumentalities of the Federal Government, Easton v. Iowa, 188 U. S. 220, 229-230 (1903); McCulloch v. Maryland, 4 Wheat. 316 (1819), and their existence is in no way dependent on state law. See 7A Michie, Banks and Banking, ch. 15, §§ 1, 5 (1973 ed.). In cases where corporate speech has been denied the shelter of the First Amendment, there is no suggestion that the reason was because a corporation' rather than an individual or association was involved. E. g., Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U. S. 376 (1973); Kingsley Books, Inc. v. Brown, 354 U. S." }, { "docid": "22738334", "title": "", "text": "Civil Service Comm’n v. Letter Carriers, 413 U. S. 548, 557 (1973) (“[F]ederal service should depend upon meritorious performance rather than political service”). The corporate independent expenditures at issue in this ease, however, would not interfere with governmental functions, so these cases are inapposite. These precedents stand only for the proposition that there are certain governmental functions that cannot operate without some restrictions on particular kinds of speech. By contrast, it is inherent in the nature of the political process that voters must be free to obtain information from diverse sources in order to determine how to cast their votes. At least before Austin, the Court had not allowed the exclusion of a class of speakers from the general public dialogue. We find no basis for the proposition that, in the context of political speech, the Government may impose restrictions on certain disfavored speakers. Both history and logic lead us to this conclusion. A 1 The Court has recognized that First Amendment protection extends to corporations. Bellotti, supra, at 778, n. 14 (citing Limnark Associates, Inc. v. Willingboro, 431 U. S. 85 (1977) ; Time, Inc. v. Firestone, 424 U. S. 448 (1976); Doran v. Salem Inn, Inc., 422 U. S. 922 (1975); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam); Time, Inc. v. Hill, 385 U. S. 374 (1967); New York Times Co. v. Sullivan, 376 U. S. 254; Kingsley Int’l Pictures Corp. v. Regents of Univ. of N. Y., 360 U. S. 684 (1959); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952)); see, e. g., Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180 (1997); Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 (1996); Turner, 512 U. S. 622; Simon & Schuster, 502 U. S. 105; Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989); Florida Star v. B. J. F.," }, { "docid": "22738335", "title": "", "text": "Inc. v. Willingboro, 431 U. S. 85 (1977) ; Time, Inc. v. Firestone, 424 U. S. 448 (1976); Doran v. Salem Inn, Inc., 422 U. S. 922 (1975); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975); Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974); New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam); Time, Inc. v. Hill, 385 U. S. 374 (1967); New York Times Co. v. Sullivan, 376 U. S. 254; Kingsley Int’l Pictures Corp. v. Regents of Univ. of N. Y., 360 U. S. 684 (1959); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952)); see, e. g., Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180 (1997); Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 (1996); Turner, 512 U. S. 622; Simon & Schuster, 502 U. S. 105; Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989); Florida Star v. B. J. F., 491 U. S. 524 (1989); Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767 (1986); Landmark Communications, Inc. v. Virginia, 435 U. S. 829 (1978) ; Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974); Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S. 6 (1970). This protection has been extended by explicit holdings to the context of political speech. See, e. g., Button, 371 U. S., at 428-429; Grosjean v. American Press Co., 297 U. S. 233, 244 (1936). Under the rationale of these precedents, political speech does not lose First Amendment protection “simply because its source is a corporation.” Bellotti, supra, at 784; see Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal., 475 U. S. 1, 8 (1986) (plurality opinion) (“The identity of the speaker is not decisive in determining whether speech is pro tected. Corporations and other associations, like individuals, contribute to the ‘discussion, debate, and the dissemination of information and ideas’ that the First Amendment" }, { "docid": "5546132", "title": "", "text": "out by public libraries themselves or by other community bodies with a traditional legal right to engage in that function) would unreasonably interfere with the discretion necessary to create, maintain, or select a library’s “collection” (broadly defined to include all the information the library makes available). Cf. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256-258 (1974) (protecting newspaper’s exercise of editorial control and judgment). That is to say, “strict scrutiny” implies too limiting and rigid a test for me to believe that the First Amendment requires it in this context. Instead, I would examine the constitutionality of the Act’s restrictions here as the Court has examined speech-related restrictions in other contexts where circumstances call for heightened, but not “strict,” scrutiny — where, for example, complex, competing constitutional interests are potentially at issue or speech-related harm is potentially justified by unusually strong governmental interests. Typically the key question in such instances is one of proper fit. See, e.g., Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469 (1989); Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 740-747 (1996) (plurality opinion); Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 227 (1997) (Breyer, J., concurring in part); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 389-390 (1969). In such cases the Court has asked whether the harm to speech-related interests is disproportionate in light of both the justifications and the potential alternatives. It has considered the legitimacy of the statute’s objective, the extent to which the statute will tend to achieve that objective, whether there are other, less restrictive ways of achieving that objective, and ultimately whether the statute works speech-related harm that, in relation to that objective, is out of proportion. In Fox, supra, at 480, for example, the Court stated: “What our decisions require is a ‘fit’ between the legislature’s ends and the means chosen to accomplish those ends — a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to" }, { "docid": "22688761", "title": "", "text": "that approach uncritically. General constitutional principles indeed apply, but “each case ultimately must depend on its own specific facts . . . .” Erznoznick v. City of Jacksonville, 422 U. S. 205, 209 (1975). (2) (a) As all those joining in today’s disposition necessarily recognize, “ ‘[e]ach medium of expression . . . must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems.’ ” Ante, at 501, n. 8 (plurality opinion); ante, at 527-528 (Brennan, J., concurring in judgment) (quoting Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 557 (1975)). Accord, California v. LaRue, 409 U. S. 109, 117 (1972); Red Lion Broadcasting Co. v. FCC, 395 U. S. 367, 386 (1969); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 503 (1952); Kovacs v. Cooper, 336 U. S. 77, 97 (1949) (Jackson, J., concurring). The uniqueness of the medium, the availability of alternative means of communication, and the public interest the regulation serves are important factors to be weighed; and the balance very well may shift when attention is turned from one medium to another. Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640 (1981). Regulating newspapers, for example, is vastly different from regulating billboards. Some level of protection is generally afforded to the medium a speaker chooses, but as we have held just this past week in Heffron, “the First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired.” Id., at 647 (emphasis added). Justice Black, speaking for the Court in Adderley v. Florida, 385 U. S. 39, 48 (1966) (emphasis added), “vigorously and forthrightly rejected” the notion that “people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please.” In Kovacs v. Cooper, supra, the Court upheld a municipal ordinance that totally banned sound trucks from a town’s borders; other media were available. The Court had no difficulty distinguishing Saia v. New York, 334 U. S. 558 (1948), decided" }, { "docid": "22338540", "title": "", "text": "Secretary of State has unbridled discretion to grant or deny a license, and that the differential treatment of professional and nonprofessional fundraisers denies them equal protection of the laws. In light of our conclusion that the licensing provision is unconstitutional on other grounds, we do not reach these questions. Justice Scalia, concurring in part and concurring in judgment. We ftave held the solicitation of money by charities to be fully protected as the dissemination of ideas. See ante, at 787-789; Secretary of State of Maryland v. Joseph H. Munson Co., 467 U. S. 947, 959-961 (1984); Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 628-632 (1980). It is axiomatic that, although fraudulent misrepresentation of facts can be regulated, cf. New York Times Co. v. Sullivan, 376 U. S. 254 (1964), the dissemination of ideas cannot be regulated to .prevent it from being unfair or unreasonable, see, e. g., Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 51, 54, 57 (1988); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 256-258 (1974); Organization for a Better Austin v. Keefe, 402 U. S. 415, 419 (1971); Kingsley International Pictures Corp. v. Regents of University of New York, 360 U. S. 684, 688-689 (1959); Baumgartner v. United States, 322 U. S. 665, 673-674 (1944). Because the opinion of the Court, except for footnote 11, is consistent with this principle, I join all of the opinion with that exception. As to the last two sentences of that footnote, which depart from the case at hand to make a pronouncement upon a situation that is not before us, I do' not see how requiring the professional solicitor to disclose his professional status is narrowly tailored to prevent fraud. Where core First Amendment speech is at issue, the State can assess liability for specific instances of deliberate deception, but it cannot impose' a prophylactic rule requiring disclosure even where misleading statements are not made. Cf. Landmark Communications, Inc. v. Virginia, 435 U. S. 829, 843-844 (1978). Since donors are assuredly aware that a portion of their donations may go to solicitation" }, { "docid": "22641078", "title": "", "text": "abuse in 1999). Congress also found that surrounding the serious offenders are those who flirt with these impulses and trade pictures and written accounts of sexual activity with young children. Congress may pass valid laws to protect children from abuse, and it has. E. g., 18 U. S. C. §§2241, 2251. The prospect of crime, however, by itself does not justify laws suppressing protected speech. See Kingsley Int’l Pictures Corp. v. Regents of Univ. of N. Y., 360 U. S. 684, 689 (1959) (“Among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law, not abridgment of the rights of free speech” (internal quotation marks and citation omitted)). It is also well established that speech may not be prohibited because it concerns subjects offending our sensibilities. See FCC v. Pacifica Foundation, 438 U. S. 726, 745 (1978) (“[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it”); see also Reno v. American Civil Liberties Union, 521 U. S. 844, 874 (1997) (“In evaluating the free speech rights of adults, we have made it perfectly clear that ‘[sjexual expression which is indecent but not obscene is protected by the First Amendment’ ”) (quoting Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989)); Carey v. Population Services Int'l, 431 U. S. 678, 701 (1977) (“[T]he fact that protected speech may be offensive to some does not justify its suppression”). As a general principle, the First Amendment bars the government from dictating what we see or read or speak or hear. The freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children. See Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy, J., concurring). While these categories may be prohibited without violating the First Amendment, none of them includes the speech prohibited by the CPPA. In his dissent from the opinion of the Court of Appeals, Judge Ferguson" }, { "docid": "22812874", "title": "", "text": "to participate in a televised debate. See Brief for FCC et al. as Amici Curiae 14 (“The First Amendment does not constrain the editorial choices of state-entity public broadcasters licensed to operate under the Communications Act”); see also Brief for State of California et al. as Amici Curiae 4 (“In its role as speaker, rather than mere forum provider, the state actor is not restricted by speaker-inclusive and viewpoint-neutral rules”). See supra, at 685-686. See n. 17, infra. After citing Shuttlesworth, we explained: “The reasoning is simple: If the permit scheme ‘involves appraisal of facts, the exercise of judgment, and the formation of an opinion,’ Cantwell v. Connecticut, 310 U. S. 296, 305 (1940), by the licensing authority, ‘the danger of censorship and of abridgment of our predous First Amendment freedoms is too great’ to be permitted, Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 553 (1975).” 505 U. S., at 131. It is particularly troubling that AETC excluded the only independent candidate but invited all the major-party candidates to participate in the planned debates, regardless of their chances of electoral success. See n. 6, supra. As this Court has recognized, “political figures outside the two major parties have been fertile sources of new ideas and new programs; many of their challenges to the status quo have in time made their way into the political mainstream.” Anderson v. Celebrezze, 460 U. S. 780, 794 (1983) (citing Illinois Bd. of Elections v. Socialist Workers Party, 440 U. S. 173, 186 (1979)). Lack of substantial financial support apparently was not a factor in the decision to invite a major-party candidate with even less financial support than Forbes. See n. 6, supra. Indeed, a plurality of the Court recently has expressed reluctance about applying public forum analysis to new and changing contexts. See Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 741, 749 (1996) (plurality opinion) is not at all dear that the public forum doctrine should be imported wholesale into the area of common carriage regulation”). Hie Court observes that “in most cases, the First Amendment of" } ]

[ { "docid": "6184309", "title": "", "text": "an ADEA claim, a plaintiff must establish, by a preponderance of the evidence, that age was the “but-for” cause of the adverse employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). Age discrimination claims in which the plaintiff relies on circumstantial evidence proceed according to the three-part 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); Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1108 (3d Cir.1997) (reaffirming the application of a “slightly modified version of [McDonnell Douglas ] in ADEA cases”). Under this framework, the plaintiff must first establish a prima facie case of discrimination. Keller, 130 F.3d at 1108 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). Satisfying the prima facie elements creates an “inference of unlawful discrimination.” Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 357 (3d Cir.1999) (quoting Waldron v. SL Indus., Inc., 56 F.3d 491, 494 (3d Cir.1995)). The elements of a prima facie case of age discrimination are that: (1) the plaintiff is at least forty years old; (2) the plaintiff suffered an adverse employment decision; (3) the plaintiff was qualified for the position in question; and (4) the plaintiff was ultimately replaced by another employee who was sufficiently younger so as to support an inference of a discriminatory motive. Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir.2013). This Court has indicated the prima facie case is not “intended to be rigid, mechanized, or ritualistic.” Pivirotto, 191 F.3d at 352 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978)). Where the plaintiff is not directly replaced, the fourth element is satisfied if the plaintiff can provide facts which “if otherwise unexplained, are more _ likely ■ than not based on the consideration of impermissible factors.” Id. Once the plaintiff has successfully established a prima facie case creating an inference of discrimination, the burden shifts to the employer who must “articulate a legitimate" } ]

[ { "docid": "20175562", "title": "", "text": "grant of summary judgment on his ADEA claim. The ADEA makes it “unlawful for an employer to ... discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). The McDonnell Douglas framework applies. Rahlf v. Mo-Tech Corp., 642 F.3d 633, 637 (8th Cir.2011). In order to establish a prima facie ease under the ADEA, Onyiah must show: (1) he is over 40; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) substantially younger, similarly-situated employees were treated more favorably. Anderson v. Durham D & M, L.L.C., 606 F.3d 513, 523 (8th Cir.2010). If Onyiah establishes a prima facie ease of age discrimination, the burden of production shifts to the University to “articulate a legitimate, nondiscriminatory reason” for the pay disparity. Rahlf, 642 F.3d at 637. If the University does so, Onyiah must show that its proffered reason was pretext for discrimination. Id. At all times, Onyiah retains the ultimate burden of persuasion that “age was the ‘but-for’ cause” of his lesser salary. Id., citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). Again assuming that Onyiah has made a prima facie case of ADEA salary discrimination by identifying substantially younger professors who were paid more, he fails to prove that the University’s explanation for his salary — compliance with University policy and his failure to negotiate — is pretext for age discrimination. See Gibson v. American Greetings Corp., 670 F.3d 844, 856 (8th Cir.2012). Onyiah does not identify any evidence that supports an inference that age was the “but for” cause of his salary, beyond pointing to younger professors who are paid more. This does not create a material issue of fact at the pretext stage. See Carraher v. Target Corp., 503 F.3d 714, 719 (8th Cir.2007) (“Although Carraher was replaced by someone substantially younger than him, in this case 28 years younger, we have previously held that this fact, though necessary to establish a prima facie case, possesses ‘insufficient" }, { "docid": "20528161", "title": "", "text": "of evidence a prima facie case of discrimination. Second, once the plaintiff proves a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment decision. Finally, if the defendant carries its burden, the plaintiff must either prove by a preponderance of the evidence that the legitimate reasons offered by the defendant are merely a pretext for discrimination or present sufficient evidence, of any type, for a reasonable jury to conclude that discrimination was a “motivating factor” for the employment action, even though the defendant’s legitimate reason may also be true or have played some role in the decision. McDonnell Douglas, 411 U.S. at 802-05, 93 S.Ct. at 1824-26; Burdine, 450 U.S. at 252-54, 101 S.Ct. at 1093-94; Desert Palace, 539 U.S. at 101-02, 123 S.Ct. at 2155. C. Age Discrimination 1. ADEA Most of Mr. King’s federal claims arise under the ADEA. The ADEA provides that “[i]t shall be unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). In order to fall under the ADEA’s protections, an employee must be “at least 40 years of age[,]” 29 U.S.C. § 631(a), and the plaintiff “retains the burden of persuasion to establish that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Financial Services, Inc., 557 U.S. 167, 177, 129 S.Ct. 2343, 2351, 174 L.Ed.2d 119 (2009) (emphasis added). The Eleventh Circuit “has adopted a variation” of the prima facie case standard articulated by the Supreme Court for Title VII claims in McDonnell Douglas for cases arising under the ADEA. Mitchell v. Worldwide Underuniters Ins. Co., 967 F.2d 565, 566 (11th Cir.1992). “Under this variation of the McDonnell Douglas test for establishing a prima facie case of discrimination, the plaintiff must show that he (1) was a member of the protected group of persons between the ages of 40 and 70, (2) was" }, { "docid": "14915817", "title": "", "text": "disputed issues of fact as undisputed. See Rivera v. City and Cnty. of Denver, 365 F.3d 912, 920 (10th Cir.2004). “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). Under the ADEA, it is “unlawful for an employer ... 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, because of such individual’s age.” 29 U.S.C. § 623(a). “[T]he ordinary meaning of the ADEA’s requirement that an employer took adverse action ‘because of age is that age was the ‘reason’ that the employer decided to act.” Gross v. FBL Fin. Servs., Inc., 557 U.S.-, 129 S.Ct. 2343, 2350, 174 L.Ed.2d 119 (2009). In other words, we must determine whether age was a “but-for” cause, id., or “the factor that made a difference,” Jones v. Okla. City Pub. Sck, 617 F.3d 1273, 1277 (10th Cir.2010); cf. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on Torts § 41, at 265 (5th ed. 1984) (“An act or omission is not regarded as a cause of an event if the particular event would have occurred without it.”). Ms. Simmons has not challenged the district court’s holding that there is no direct evidence of discrimination, so we evaluate her ADEA claim using the three-step framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Jones, 617 F.3d at 1278-79. Under this framework, the plaintiff must initially establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for its action. Id. at 802-03, 93 S.Ct. 1817. Should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons" }, { "docid": "13491821", "title": "", "text": "moving party is entitled to judgment as a matter of law. Fed. R. Civ.P. 56(a). A genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When considering a motion for summary judgment, we must draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When considering an unopposed motion for summary judgment, we determine de novo whether the facts as presented by the movant establish that the movant met its initial burden under Rule 56. Cacevic, 226 F.3d at 491. The ADEA prohibits an employer from failing or refusing to hire any individual because of such individual’s age. 29 U.S.C. § 623(a)(1). A plaintiff may establish a violation of the ADEA through the use of direct or circumstantial evidence. Provenzano, 663 F.3d at 811. Age discrimination claims based on circumstantial evidence are governed by the three-step framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Geiger v. Tower Auto., 579 F.3d 614, 622 (6th Cir.2009). In the first step, the plaintiff employee must establish a prima facie case of discrimination; if this burden is met, the employer must respond by articulating a legitimate, nondiscriminatory reason for the challenged adverse employment action. See McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. 1817. If the employer meets its burden, then the plaintiff must rebut the proffered reason by showing that it was pretext intended to mask discrimination. Id. at 804, 93 S.Ct. 1817. All ADEA plaintiffs must carry the burden of persuasion and demonstrate that age was the “but-for” cause of the adverse employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 2350, 174 L.Ed.2d 119 (2009). After reviewing the record, we believe that the FAA met its burden under Rule 56, so that the district court’s grant" }, { "docid": "15599284", "title": "", "text": "or privileges of employment on the basis of their age. 29 U.S.C. § 623(a). In order to prove his claim, Haigh must show, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action. See Gross v. FBL Fin. Servs., Inc., — U.S.-, 129 S. Ct. 2343, 2352, 174 L.Ed.2d 119 (2009) (“The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.”); Clark v. Matthews Int’l Corp., 628 F.3d 462, 469 (8th Cir.2010) (“[The plaintiff] is required to prove that his age was the ‘but-for’ cause of [the employer’s] challenged decisions regardless of whether he uses direct or circumstantial evidence to prove his age-discrimination claims.”) (citing Gross, 129 S.Ct. at 2351). Because Haigh has no direct evidence of discrimination, his claims are analyzed under the familiar burden-shifting scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Clark, 628 F.3d at 469 (“The Supreme Court in Gross declined to answer whether use of this evidentiary framework is appropriate in the context of ADEA claims ... [but] [o]ther circuits ... have continued to apply it.”). First, Haigh is tasked with establishing a prima facie case of age discrimination by showing (1) he was at least 40 years old; (2) he was terminated; (3) he was meeting his employer’s reasonable expectations at the time he was terminated; and (4) he was replaced by an individual who was substantially younger. Roeben v. BG Excelsior Ltd. P’ship, 545 F.3d 639, 642 (8th Cir.2008). If Haigh establishes a prima facie case, the burden shifts to Gelita to provide a legitimate, nondiscriminatory reason for the termination. Id. Finally, if Gelita provides such a reason, the burden returns to Haigh to prove Gelita’s reason was mere pretext for discrimination. Id. at 642-43. The district court concluded Haigh failed to present sufficient evidence to create a genuine issue of material fact as to" }, { "docid": "4729847", "title": "", "text": "43 Pa. Stat. Ann. § 955(a) (similar prohibition). To succeed on a claim of age discrimination under the ADEA and PHRA, the plaintiff “must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer decision.” Gross v. FBL Financial Services, Inc., — U.S. -, 129 S.Ct. 2343, 2351, 174 L.Ed.2d 119 (2009). Where, as here, the complaining party relies upon circumstantial evidence to support an age discrimination claim, our Court of Appeals has approved the use of the familiar burden shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a Title VII discrimination case. See Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir.2009). As explained in Smith, the burden shifting approach works as follows: the plaintiff bears the burden of proof and the initial burden of production, having to demonstrate a prima facie case of discrimination by showing first, that the plaintiff is forty years of age or older; second, that the defendant took an adverse employment action against the plaintiff; third, that the plaintiff was qualified for the position in question; and fourth, that the plaintiff was ultimately replaced by another employee who was sufficiently younger to support an inference of discriminatory animus. Once the plaintiff satisfies these elements, the burden of production shifts to the employer to identify a legitimate non-discriminatory reason for the adverse employment action. If the employer does so, the burden of production returns to the plaintiff to demonstrate that the employer’s proffered rationale was a pretext for age discrimination. At all times, however, the burden of persuasion rests with the plaintiff. Id. at 689-90 (citations omitted). If the employer offers evidence of a legitimate, non-discriminatory reason for the adverse employment decision, the plaintiff must produce evidence “from which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.” Fuentes v. Perskie, 32 F.3d 759," }, { "docid": "5989211", "title": "", "text": "the non-moving party. Id. However, the party seeking to overcome a motion for summary judgment may not “rest on mere allegations” in its complaint but must “set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). The party seeking to overcome a motion for summary judgment must also make a showing sufficient to establish the existence of those elements essential to that party’s case. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-33, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). III. ADEA Claim Under the ADEA, it is “unlawful for an employer ... 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, because of such individual’s age.” 29 U.S.C. § 623(a)(1). The Supreme Court recently concluded that “the ordinary meaning of the ADEA’s requirement that an employer took adverse action ‘because of age is that age was the ‘reason’ that the employer decided to act.” Gross v. FBL Fin. Servs., Inc., - U.S. -, 129 S.Ct. 2343, 2350, 174 L.Ed.2d 119 (2009). The Court held that in order to “establish a disparate-treatment claim under the plain language of the ADEA[,] a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse decision.” Id. Therefore, in all ADEA disparate treatment claims, the plaintiff must prove by a preponderance of the evidence that age was the “but-for” cause of the challenged employment decision. Id. at 2351 & n. 4. After Gross, courts struggled with whether the burden-shifting framework of McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), continued to apply to ADEA cases. The Tenth Circuit recently clarified this issue, however, and held that a plaintiff may meet his burden under the ADEA by either direct evidence or by indirect evidence through the McDonnell Douglas framework. Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1278 (10th Cir.2010). Under this framework, Plaintiff must first make a prima facie case of discrimination under the ADEA, demonstrating that: (1) she" }, { "docid": "6000613", "title": "", "text": "discretion, the jury has to get the case.” Combs, 106 F.3d at 1538. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 178, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) (ADEA plaintiff must show, through direct or circumstantial evidence, “that age was the ‘but-for’ cause of the challenged employer decision”). Ill Mr. Orlando’s denial of Takeda’s proffered reason for Ms. Kragor’s termination — which we accept as true for purposes of summary judgment — creates a jury question as to discrimination when combined with Ms. Kragor’s prima facie case. We therefore reverse the district court’s grant of summary judgment in favor of Takeda and remand for a trial on Ms. Kragor’s claim that her termination was the result of age discrimination in violation of the ADEA. Reversed and Remanded. . Some of our post -Reeves cases have described this as the burden shifting back to the plaintiff to show pretext, see, e.g., Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1344 (11th Cir.2003), but it is more accurate to say that once the employer offers evidence of a legitimate, nondiscriminatory reason for the adverse action, \"the McDonnell Douglas framework — with its presumptions and burdens — disappear^], and the sole remaining issue [i]s discrimination vel non.” Reeves, 530 U.S. at 142-43, 120 S.Ct. 2097 (citations and internal quotation marks omitted). The opportunity provided to a plaintiff to show pretext is simply an opportunity to present evidence from which the trier of fact can find unlawful discrimination. . We do not know, of course, whether Mr. Orlando actually made the statements attributed to him by Dr. Bode. As noted earlier, the parties did not depose Mr. Orlando or Dr. Bode. Maybe at trial Mr. Orlando will deny that he said anything favorable about Ms. Kragor to Dr. Bode, and if so a jury will have to assess the credibility of Mr. Orlando and Dr. Bode. Or maybe Mr. Orlando will admit to making the statements attributed to him, but will explain that they were only his personal beliefs or were made so as to not implicate Dr. Bode" }, { "docid": "1999860", "title": "", "text": "Ex-Lax.” Acevedo-Padilla, 740 F.Supp.2d at 299. We can discern no error by the district court and, for purposes of this appeal, we have likewise only considered those facts (“additional” or otherwise) properly presented and supported, per Local Rule 56. C. Acevedo’s Age Discrimination Claim 1. The ADEA and McDonnell Douglas The ADEA provides that it is unlawful for an employer to “refuse to hire or to discharge any individual or otherwise discriminate against [him] with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). A plaintiff asserting a claim under the ADEA has the burden of establishing “that age was the ‘but-for’ cause of the employer’s adverse action.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). Such a plaintiff is not required to proffer direct evidence of discrimination, and may meet his burden through circumstantial evidence. To be sure, we have acknowledged that “ADEA plaintiffs rarely possess ‘smoking gun’ evidence to prove their employers’ discriminatory motivations.” Velez, 585 F.3d at 446 (quoting Arroyo-Audifred v. Verizon Wireless, Inc., 527 F.3d 215, 218-19 (1st Cir.2008)). In the absence of direct evidence of age discrimination, we evaluate ADEA claims under the three-stage burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Cameron v. Idearc Media Corp., 685 F.3d 44, 48 (1st Cir.2012). In the first of the three McDonnell Douglas stages, the plaintiff has the initial burden of establishing a prima facie case of discrimination. In an ADEA action this requires a showing “[1] that he or she was at least 40 years old at the time of discharge; [2] that he or she was qualified for the position but [3] was nevertheless fired; and [4] the employer subsequently filled the position.” Id. (citing Velez, 585 F.3d at 447). Doing so “gives rise to an inference that the employer discriminated due to the plaintiffs advanced years.” Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir.1991). If the plaintiff is able to establish" }, { "docid": "19536665", "title": "", "text": "or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.' \" Id. (quoting 29 U.S.C. § 623(a)(1) ). Because plaintiff seeks to recover under a theory of disparate treatment, he must \"prove, by a preponderance of the evidence, that age was the 'but-for' cause of the challenged adverse employment action.\" Id. (quoting Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167, 180, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) ). In other words, \"in the ADEA context, it's not enough to show that age was a motivating factor. The plaintiff must prove that, but for his age, the adverse action would not have occurred.\" Martino v. MCI Commc'ns Serv., Inc. , 574 F.3d 447, 455 (7th Cir. 2009). \"In this respect, the ADEA is narrower than Title VII ... as Title VII also protects against mixed-motive discrimination.\" Carson, 865 F.3d at 532. An ADEA plaintiff may satisfy this burden through two methods. First, she \"may proceed by introducing direct or circumstantial evidence that her employer took an adverse action against her because of her age.\" Id. at 532-33. Alternatively, she may use the McDonnell Douglas \"burden shifting framework.\" Id. at 533 (citing McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) ). Under this approach, the plaintiff must show evidence that \"(1) she is a member of a protected class, (2) she was meeting the defendant's legitimate expectations, (3) she suffered an adverse employment action, and (4) similarly situated employees who were not members of her protected class were treated more favorably.\" Id. (quoting Simpson v. Franciscan All., Inc. , 827 F.3d 656, 661 (7th Cir. 2016) ). If the plaintiff meets each element of her prima facie case, \"the burden shifts 'to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action, at which point the burden shifts back to the plaintiff to submit evidence that the employer's explanation is pretextual.' \" Id. (internal quotation marks omitted) (quoting Simpson , 827" }, { "docid": "5269897", "title": "", "text": "Disparate Treatment A plaintiff seeking to recover for disparate treatment under the ADEA must “prove, by a preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse employment action.” Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 180, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009); Fleishman v. Continental Casualty Co., 698 F.3d 598, 603 (7th Cir. 2012). In this respect, the ADEA is narrower than Title VII of the Civil Rights Act of 1964, as Title VII also protects .against mixed-motive discrimination. See Hossack v. Floor Covering Assocs. of Joliet, Inc., 492 F.3d 853, 860 (7th Cir. 2007). An ADEA plaintiff may proceed by introducing direct or circumstantial evidence that her employer took an adverse action against her because of her age. See Cerutti v. BASF Corp., 349 F.3d 1055, 1061 (7th Cir. 2003), overruled in part on other grounds by Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th Cir. 2016). Alternatively, a plaintiff may proceed through the burden-shifting framework adapted from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under the burden-shifting approach, the plaintiff must come forward with evidence showing that “(1) she is a member of a protected class, (2) she was meeting the defendant’s legitimate expectations, (3) she suffered an adverse employment action, and (4) similarly situated employees who were not members of her protected class were treated more favorably.” Simpson v. Franciscan Alliance, Inc., 827 F.3d 656, 661 (7th Cir. 2016). If the plaintiff has established this prima fa-cie case, the burden shifts “to the defendant to ‘articulate a legitimate, nondiscriminatory reason for the adverse employment action, at which point the burden shifts back to the plaintiff to submit evidence that the employer’s explanation is pretex-tual.’ ” Id. (citation omitted). However the plaintiff chooses to proceed, at the summary judgment stage the court must consider all admissible evidence to decide whether a reasonable jury could find that the plaintiff suffered an adverse action because of her age. See Ortiz, 834 F.3d at 765 (“Th[e] legal standard ... is simply whether the evidence" }, { "docid": "1634222", "title": "", "text": "Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009) (“[T]he ordinary meaning of the ADEA’s requirement that an employer took adverse action ‘because of age is that age was the ‘reason’ that the employer decided to act.”). By identifying direct evidence of discriminatory motive, a plaintiff overcomes summary judgment, foregoing the McDonnell Douglas analysis. Torgerson, 643 F.3d at 1044. Direct evidence includes circumstantial evidence if the plaintiff shows “a specific link between a discriminatory bias and the adverse employment action, sufficient to support a finding by a reasonable fact-finder that the bias motivated the action.” Id. at 1046. See also EEOC v. City of Independence, 471 F.3d 891, 894 (8th Cir.2006) (“To succeed on a disparate treatment claim, the plaintiff must show the employee’s age ‘actually played a role in [the employer’s decision- making] process and had a determinative influence on the outcome.’ ” (alteration in original)), quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). “But if the plaintiff lacks evidence that clearly points to the presence of an illegal motive, he must avoid summary judgment by creating the requisite inference of unlawful discrimination through the McDonnell Douglas analysis, including sufficient evidence of pretext.” Torgerson, 643 F.3d at 1044. Under McDonnell Douglas, an employee first establishes a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The burden of production then shifts to the employer to “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. See also Torgerson, 643 F.3d at 1047 (“The burden to articulate a nondiscriminatory justification is not onerous, and the explanation need not be demonstrated by a preponderance of the evidence.”). If the employer offers such a reason, the burden shifts back to the plaintiff to evidence that the employer’s proffered explanation is pretext for unlawful discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. A plaintiff provides sufficient evidence of pretext by showing that “the employer’s explanation is unworthy of credence ... because it has no basis in fact.... [or]" }, { "docid": "13491822", "title": "", "text": "discrimination claims based on circumstantial evidence are governed by the three-step framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Geiger v. Tower Auto., 579 F.3d 614, 622 (6th Cir.2009). In the first step, the plaintiff employee must establish a prima facie case of discrimination; if this burden is met, the employer must respond by articulating a legitimate, nondiscriminatory reason for the challenged adverse employment action. See McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. 1817. If the employer meets its burden, then the plaintiff must rebut the proffered reason by showing that it was pretext intended to mask discrimination. Id. at 804, 93 S.Ct. 1817. All ADEA plaintiffs must carry the burden of persuasion and demonstrate that age was the “but-for” cause of the adverse employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 2350, 174 L.Ed.2d 119 (2009). After reviewing the record, we believe that the FAA met its burden under Rule 56, so that the district court’s grant of summary judgment to the FAA was proper. See Cacevic, 226 F.3d at 491-92; see also Guarino v. Brookfield Twp. Trs., 980 F.2d 399, 407 (6th Cir.1992) (district court correctly relied on evidence designated by defendants in their unopposed motion for summary judgment). In its second motion for summary judgment, the FAA attached additional depositions which established that the FAA had legitimate, nondiscriminatory reasons for hiring air traffic controllers for the Cleveland ARTCC who graduated from the MARC program or through the VRA. These reasons included the specialized knowledge and relevant experience those applicants possessed, knowledge and experience which Yeschick lacked. Furthermore, the district court correctly found that, on the record before it, Yeschick had not carried his burden of demonstrating that age was the “but-for” cause of the FAA’s failure to hire him, as he was required to under Gross, 129 S.Ct. at 2352. The FAA put forth evidence indicating that Yeschick’s application was designated “inactive” because he did not have current contact information on file. Further, the FAA showed that applications from older" }, { "docid": "915839", "title": "", "text": "Douglas burden-shifting framework. Daniels, 776 F.3d at 198-99. After establishing a prima facie case of retaliation, the burden shifts to the employer to provide a legitimate non-retaliatory reason for its conduct. Moore, 461 F.3d at 342. If it does so, the burden shifts back to the plaintiff “to convince the factfinder both that the employer’s proffered explanation was false [that is, a pretext], and that retaliation was the real reason for the adverse employment action.” Id. The onus is on the plaintiff to establish causation at two stages of the case: initially, to demonstrate a causal connection as part of the prima facie case, and at the final stage of the McDonnell Douglas framework to satisfy her ultimate burden of persuasion by proving pretext. The question before us is what a plaintiff must bring as part of her prima facie case of retaliation to survive a motion for summary judgment in the wake of the Supreme Court’s decision in Nassar, which held that “Title VII retaliation claims must be proven according to traditional principles of but-for causation.” 133 S.Ct. at 2533. Our sister circuits are split on this question. See Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 251 n.10 (4th Cir. 2015) (collecting cases). We conclude that Nassar does not alter the plaintiffs burden at the prima facie stage; proving but-for causation as part of her ultimate burden of persuasion comes later, and not at the motion-to-dismiss stage. Importantly, the “but-for” causation standard required by Nassar “does not conflict with our continued application of the McDonnell Douglas paradigm” in Title VII retaliation cases. Smith v. Allentown, 589 F.3d 684, 691 (3d Cir. 2009) (analyzing Gross v. FBL Financial Services, 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009), and the “but-for” causation requirement in proving claims under the Age Discrimination in Employment Act). Applying McDonnell Douglas to Title VII retaliation claims, we have made clear that “[although the burden of production of evidence shifts back and forth, the plaintiff has the ultimate burden of persuasion at all times.” Daniels, 776 F.3d at 193. Because the McDonnell Douglas" }, { "docid": "4391643", "title": "", "text": "age discrimination based on disparate treatment. When, as here, a plaintiff relies on circumstantial rather than direct evidence of age discrimination, the case is considered under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 515 (8th Cir.2011) (upholding the continued applicability of McDonnell Douglas after Gross v. FBL Fin. Servs., Inc., — U.S. -, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009)); Haigh v. Gelita USA, Inc., 632 F.3d 464, 468 (8th Cir.2011) (applying McDonnell Douglas, after Gross, in ADEA claim based on circumstantial evidence). Under this framework, the plaintiff must first establish a four-part prima facie case of age discrimination. See Chambers v. Metro. Prop. & Cas. Ins. Co., 351 F.3d 848, 855 (8th Cir.2003). To establish a prima facie case of age discrimination in a reduction-in-force, a plaintiff must show that (1) he is over 40 years old, (2) he met the applicable job qualifications, (3) he suffered an adverse employment action, and (4) there is some additional evidence that age was a factor in the employer’s termination decision. See Ward v. Int'l Paper Co., 509 F.3d 457, 460 (8th Cir.2007). Once the plaintiff establishes a prima facie case, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. Id. If the employer does so, the plaintiff must show that the employer’s proffered reason was pretext for discrimination. Id. At all times, the plaintiff retains the burden of persuasion to prove that age was the “but-for” cause of the termination. See Gross v. FBL Fin. Servs., Inc., — U.S. at-, 129 S.Ct. at 2350. The first and third elements of a prima facie case are undisputed: Rahlf, Stelter and Johnson were over forty and were laid off. Mo-Tech also does not contest that Stelter and Johnson satisfy the second element: both were qualified for a position at the company after the RIF. Mo-Tech does, however, argue that Rahlf was not qualified for any position existing after the" }, { "docid": "1634223", "title": "", "text": "the plaintiff lacks evidence that clearly points to the presence of an illegal motive, he must avoid summary judgment by creating the requisite inference of unlawful discrimination through the McDonnell Douglas analysis, including sufficient evidence of pretext.” Torgerson, 643 F.3d at 1044. Under McDonnell Douglas, an employee first establishes a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The burden of production then shifts to the employer to “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id. See also Torgerson, 643 F.3d at 1047 (“The burden to articulate a nondiscriminatory justification is not onerous, and the explanation need not be demonstrated by a preponderance of the evidence.”). If the employer offers such a reason, the burden shifts back to the plaintiff to evidence that the employer’s proffered explanation is pretext for unlawful discrimination. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. A plaintiff provides sufficient evidence of pretext by showing that “the employer’s explanation is unworthy of credence ... because it has no basis in fact.... [or] by persuading the court that a [prohibited] reason more likely motivated the employer.” Torgerson, 643 F.3d at 1047 (second alteration in original). See also Reeves, 530 U.S. at 143, 120 S.Ct. 2097 (plaintiff overcomes summary judgment by showing employer’s proffered explanation is unworthy of credence). “At all times, the plaintiff retains the burden of persuasion to prove that age was the ‘but-for’ cause of the termination.” Rahlf, 642 F.3d at 637, citing Gross, 557 U.S. at 176-77, 129 S.Ct. 2343. B. Here, the commissioners did not directly reference Hilde’s age in their hiring process. Because Hilde fails to show a “specific link” to age discrimination, the McDonnell Douglas analysis applies. See Torgerson, 643 F.3d at 1046. The parties agree that Hilde satisfies the first three prima facie elements: he was (1) over 40 at the time of the challenged decision, (2) not hired (or promoted), and (3) qualified for the job. Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 515 (8th Cir.2011) (fourth element whether employer hired younger person to fill position)." }, { "docid": "13519258", "title": "", "text": "privileges or employment, because of such individual’s age.” 29 U.S.C. §§ 623(a)(1), 631(a). “To establish a disparate-treatment claim under the ... ADEA, ... a plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse decision.” Gross v. FBL Fin. Servs., Inc., — U.S. -, 129 S.Ct. 2343, 2350, 174 L.Ed.2d 119 (2009). “[T]he ADEA does not permit a separate recovery of compensatory damages for pain and suffering or emotional distress.” Comm’r Internal Revenue v. Schleier, 515 U.S. 323, 326, 115 S.Ct. 2159, 2162, 132 L.Ed.2d 294 (1995). Where, as here, there is no direct or statistical evidence of age discrimination, the Court applies the burden-shifting framework established 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), to evaluate ADEA claims based upon circumstantial evidence. See Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir.2000) (en banc). Under the McDonnell Douglas framework, plaintiff must establish a prima facie case of discrimination. Chapman, 229 F.3d at 1024. Because the instant case concerns a job elimination (not a discharge for cause), Ms. Maples may establish a prima facie case of discrimination by (1) showing that she was a member of a protected group and was adversely affected by an employment decision; (2) proving that she was qualified for her own position or to assume another position at the time of the discharge; and (3) producing sufficient evidence from which a rational fact finder could conclude that her employer intended to discriminate against her in making the discharge decision. Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1331 (11th Cir.1998); accord Williams v. Vitro Servs. Corp., 144 F.3d 1438, 1441 (11th Cir.1998). If a plaintiff is successful in establishing a prima facie case, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the challenged employment action. Chapman, 229 F.3d at 1024. The Eleventh Circuit describes this burden as “exceedingly light.” Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142 (11th" }, { "docid": "4729846", "title": "", "text": "nonmoving party. Cont’l Ins. Co. v. Bodie, 682 F.2d 436, 438 (3d Cir.1982). The moving party has the burden of showing the absence of a genuine issue of material fact, but the nonmoving party must present affirmative evidence from which a jury might return a verdict in the nonmoving party’s favor. Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505. Mere conclusory allegations taken from the pleadings are insufficient to withstand a motion for summary judgment. Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir.1990). Summary judgment is to be entered “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). B. Age Discrimination Claims The ADEA declares it unlawful “to discharge any individual ... because of such individual’s age.” 29 U.S.C. § 623(a)(1); see also 43 Pa. Stat. Ann. § 955(a) (similar prohibition). To succeed on a claim of age discrimination under the ADEA and PHRA, the plaintiff “must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer decision.” Gross v. FBL Financial Services, Inc., — U.S. -, 129 S.Ct. 2343, 2351, 174 L.Ed.2d 119 (2009). Where, as here, the complaining party relies upon circumstantial evidence to support an age discrimination claim, our Court of Appeals has approved the use of the familiar burden shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), a Title VII discrimination case. See Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir.2009). As explained in Smith, the burden shifting approach works as follows: the plaintiff bears the burden of proof and the initial burden of production, having to demonstrate a prima facie case of discrimination by showing first, that the plaintiff is forty years of age or older;" }, { "docid": "3478877", "title": "", "text": "Paul Grossman & C. Geoffrey Weirich, Employment Discrimination Law 2-4 (5th ed.2012) (describing prima facie case as “fluid” and “adaptable] ... to the facts of the particular case”). . The D.C. Circuit recently reaffirmed the principle that at summary judgment, the pretext inquiry under Brady requires that the plaintiff proffer evidence of “demonstrably discriminatory motive.” Hairston v. Vance-Cooks, 773 F.3d 266, 272 (D.C.Cir.2014) (citation omitted). . In Gross v. FBL Financial Services, Inc., the Supreme Court held that a plaintiff bringing an age discrimination claim under the ADEA must show that age was the ‘'but-for” cause of the challenged action. 557 U.S. 167, 177-78, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009); accord Schuler v. Pricewaterhouse-Coopers, LLP, 595 F.3d 370, 376 (D.C.Cir.2010). Gross did not, however, address whether the McDonnell Douglas framework governs the ADEA. See Gross, 557 U.S. at 175 n. 2, 129 S.Ct. 2343. But given that Gross concerned the ultimate burden of persuasion, and not the burdens of production (the role of the McDonnell Douglas framework), the \"but-for” causation requirement of Gross impacts neither the prima facie case elements nor McDonnell Douglas's applicability in the ADEA context. See Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir.2009) (explaining that Gross \"stands for the proposition that it is improper to shift the burden of persuasion to the defendant” and reviewing cases that leave intact the McDonnell Douglas framework in ADEA cases). . While the Court's discussion of various alleged adverse employment actions generally proceeded in chronological order in the factual overview, see supra Part II, the Court here addresses the denial of work assignments first, given that the central question implicated — whether Martin was a \"qualified individual with a disability” under the ADA — in turn impacts the disposition of other disparate treatment claims addressed below. Additionally, although Defendants’ arguments on this question were made in response to Martin's failure-to-accommodate claims in Counts Five and Six, the Court addresses them here. See Mem. Supp. Mot. Dismiss & Summ. J. 17. .Count Ten does not allege that Martin lost work assignments on account of her age. See" }, { "docid": "2452081", "title": "", "text": "least 40 years old because of that employee’s age. See id. at §§ 623(a)(l)-(2), 631(a). A A plaintiff may support a claim under the ADEA through either direct evidence or circumstantial evidence. See Mora v. Jackson Mem’l Found., Inc., 597 F.3d 1201, 1204 (11th Cir.2010). To ultimately prevail, “[a] plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the ‘but-for’ cause of the challenged employer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,177-78,129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). Where, as here, a plaintiff proffers circumstantial evidence to establish an ADEA claim, we apply the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Sims v. MVM, Inc., 704 F.3d 1327, 1332-33 (11th Cir.2013) (explaining how this burden-shifting framework for circumstantial evidence remains consistent with the Supreme Court’s decision in Gross). Under this framework, a plaintiff must first establish a prima facie case of age discrimination. See Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir.2000). If he does so, the burden of production shifts to the employer “to articulate a legitimate, nondiscriminatory reason for the challenged employment action.” Id. If the defendant articulates at least one such reason, the plaintiff is then given the opportunity to show that the employer’s stated reason is merely a pretext for discrimination. See id. In the district court and on appeal, Mr. Mazzeo and CRI have disagreed about the appropriate prima facie test under the ADEA. Mr. Mazzeo urged the district court to use the standard version of the ADEA prima facie case. See, e.g., Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308 (11th Cir.2012) (the elements of a prima facie case under the ADEA are that the plaintiff was a member of the protected group, that the plaintiff was subject to an adverse employment action, that a substantially younger person filled the position the plaintiff sought or from which he was fired, and that the plaintiff was qualified for the job in question). CRI, for its part," } ]

[ { "docid": "15686798", "title": "", "text": "Mr. Justice Frankfurter joined, said: * * * Most of their allotted lands were expressly exempt from taxation, and, as the opinion of the Court recognizes, this removed them from the operation of Oklahoma’s estate tax. In a note supplementing this statement he further said: The fact that the exemptions do not mention inheritance or estate taxes is unimportant. As pointed out before, contrary to the general rule Indian tax exemptions are to be liberally construed. See Carpenter v. Shaw, 280 U. S. 863, 366-67. For that reason decisions, such as U. S. Trust Co. v. Helvering, 307 U. S. 57, that statutory exemptions from taxation do not include an exemption from estate taxes, have no application here. It appears, therefore, that both the majority and the minority were in agreement that the Act of May 10, 1928, was intended not only to cover direct taxes on the lands, but was intended to cover as well a tax on the privilege of transferring the lands at death. The tax under consideration in Oklahoma Tax Commission v. United States, supra, was a State tax; the tax levied in the case at bar is a Federal tax, but this is immaterial, since both taxes are identical in character; both are estate taxes levied upon transfers of property by death. Section 301 (a) of the Revenue Act of 1926 (c. 27, 44 Stat. 9, 69) levies a tax “upon the transfer of the net estate of every decedent * * The Oklahoma tax, according to the opinion of the Supreme Court in Ohlahoma Tax Commission v. United States, supra, p. 600, was levied “upon all transfers made in contemplation of death or intended to take effect after death as well as transfers ‘by will or the intestate laws of this state.’ ” Since the lands are exempt from State estate taxes, it necessarily follows they are exempt from Federal estate taxes. We are of the opinion that the Commissioner of Internal Revenue wrongfully included in the decedent’s gross estate the value of the 160 acres of allotted lands, and, therefore, under the special" } ]

[ { "docid": "18321318", "title": "", "text": "that would be indicated by a challenge to the notion that the estate tax is not a direct tax. As a kind of corollary to this indirect nature of the estate tax, it has long been established that an exemption of securities or bonds from “taxation” or “all taxation” —despite the apparent literal force of the language — does not necessarily operate as an exemption from estate or inheritance taxes. See e.g., Murdock v. Ward, 178 U.S. 139, 145-147, 20 S.Ct. 775, 777-78, 44 L.Ed. 1009 (1900); United States Trust Co. v. Helvering, 307 U.S. 57, 60, 59 S.Ct. 692, 693, 83 L.Ed. 1104 (1939); Iglehart v. Commissioner, 77 F.2d 704, 712 (5th Cir.1935); Greene v. United States, 171 F.Supp. 459, 145 Ct.Cl. 259 (1959). The executors do not seek to controvert the established general rule, now embodied in Treas.Reg. § 20.- 2033-1 (1963), that an exemption from all taxation without exception generally does not affect the imposition of estate and other excise taxes. The executors’ argument is bottomed on the premise, recognized in Greene v. United States, supra, and followed in Jandorfs Estate v. Commissioner, 171 F.2d 464 (2d Cir.1948), that where there is a “strong indication” in a particular statute and its legislative history that Congress intended an exemption from “all taxation” to encompass excise taxes as well, the specific Congressional intention should override the general rule of Murdock v. Ward, supra; United States Trust Co., supra, and similar cases. The executors argue that the terms and legislative history of the Housing Act of 1937, Pub.L. No. 75-412, 50 Stat. 888 (1937) (“the 1937 Act”), from which section 11(b) is derived, contain sufficient indicia of a Congressional intent to exempt Project Notes from estate taxes so as to preclude application of the Murdock v. Ward and United States Trust Co. rule. The 1937 Act created the former United States Housing Authority (the Authority) as an agency of the Department of the Interior. Section 3(a). It acknowledged the existence of “public housing agencies” defined as “any State, county, municipality, or other government entity or public body (excluding the Authority)," }, { "docid": "14343215", "title": "", "text": "which is an excise tax. The respondent urges that it is the principal and interest of the bonds as property — not the bondholder’s privilege of passing them on at death, which the statute exempts. He relies on Murdock v. Ward, 178 U.S. 139, 20 S.Ct. 775, 44 L.Ed. 1009, relating to the federal inheritance tax imposed by the War Revenue Act of 1898, 30 Stat. 448, and Plummer v. Coler, 178 U.S. 115, 20 S.Ct. 829, 44 L.Ed. 998, relating to the New York inheritance tax. Those cases support the proposition that a provision exempting United States bonds from taxation as to principal and interest, without more, relates exclusively to direct taxation of them as property. The cited cases would be persuasive, if Congress had not shown an intent to use the phrase “exempt * * * from all taxation” to include estate taxes by expressly excepting them in one section of the statute and not in the other, and if the Treasury Department had not for 20 years construed the statute as granting exemption with respect to the estate tax. The Commissioner has taken two completely contradictory positions in exempting bonds issued prior to March 1, 1941, while denying exemption to those issued after that date. Either the Victory Liberty Loan Act did not grant exemption with respect to the federal estate tax, in which case the Treasury Regulations prior to 1941 were invalid, or it did grant such exemption, in which case there was no -legal justification for the taxing officials to differentiate between bonds issued before March 1, 1941 and those issued after that date. For reasons already stated we believe that the statute discloses the intent of Congress to grant exemption from the federal estate tax with respect to bonds beneficially owned by a nonresident alien decedent. Sections 4, 31 U.S.C.A. § 742a, and 5 of the Public Debt Act of 1941, 55 Stat. 9, upon which the Treasury purports to base its volte face as to bonds issued after March 1, 1941, dealt only with income taxes and has no bearing, in our opinion," }, { "docid": "3232049", "title": "", "text": "immune from state taxation on various theories, the last being that such properties were “federal instru-mentalities” and therefore exempt by constitutional implication. See Oklahoma Tax Comm'n v. United States, 319 U.S. 598, 602-04 (1943). This reasoning was rejected by the Supreme Court in its Oklahoma Tax Comm'n opinion, supra, 319 U.S. 598, 603, which then went on to consider whether immunity flowed from the Congressional restrictions on alien-ability and use. The case involved inheritance taxes imposed by Oklahoma on the transfer of the estates of members of the Five Civilized Tribes who held legal title to their property; the estates included restricted cash and securities under the supervision of the Secretary of the Interior. The Court held “that the restriction, without more, is not the equivalent of a congressional grant of estate tax immunity for the cash and securities” (319 U.'S. at 602), finding that “(1) the legislative history of the Act [imposing the restriction] refutes the contention that an exemption was intended; and (2) application of the normal rule against tax exemption by statutory implication prevents our reading such an implication into the Act” (319 U.S. at 604). Five years later, this holding was applied to the very type of trust property now before us — Osage headrights (and funds derived therefrom) and shares of the Osage trust fund (derived from the Kansas lands) held in trust by the United States for the Indians. West v. Oklahoma Tax Comm'n, supra, 334 U.S. 717 (1948). The Court “fail[ed] to see any substantial difference for estate tax purposes between restricted property and trust property. The power of Congress over both types of property is the same * * *. The effect which an estate or inheritance tax may have is the same in both instances; liens may be placed on both restricted and trust properties and lead to complications; and both types of property may of necessity be depleted to assure payment of the tax.” 334 U.S. at 726. The Court refused to find any reason for immunity in the fact that the estate might “be tapped repeatedly by Oklahoma until" }, { "docid": "22573043", "title": "", "text": "S. 384 (1922) (municipal bonds subject to federal estate taxation notwithstanding an intergovernmental tax immunity- barring a direct tax on the bond); Murdock v. Ward, 178 U. S. 139, 148 (1900) (federal tax exemption on federal bonds did not extend to taxation on the right to transfer the bonds at death); Plummer v. Coler, 178 U. S. 115 (1900) (State may calculate estate tax based on total value of property passing through the estate, including federal obligations exempt from direct taxation by the State). See also United States Trust Co. v. Helvering, supra, at 60 (applying the rule of Greiner, Murdock, and Plummer to hold that property subject to a general exemption from “all taxation” would not exempt it from excise taxes such as the estate tax); Treas. Reg. § 20.2033-1, 26 CFR § 20.2033-1 (Supp. 1964) (statutes exempting federal obligations from “all taxation” refer only to direct taxation). Cf. West v. Oklahoma Tax Comm’n, 334 U. S. 717, 727 (1948) (recognizing the distinction between direct taxes and excise taxes); Reinecke v. Northern Trust Co., 278 U. S. 339, 347 (1929) (same). Consistent with this understanding, on the rare occasions when Congress has exempted property from estate taxation it has generally adverted explicitly to that tax, rather than generically to “all taxation.” E. g., Revenue Act of 1934, § 404, 48 Stat. 754, repealed by the Revenue Act of 1962, § 18, 76 Stat. 1052. Placed in context, then, § 5(e) does not stand for appellees’ proposition that Project Notes were intended to be exempt from estate taxes; it stands for exactly the opposite. Appellees attempt to bolster their contrary view with various indicia of an alleged congressional intent. Although these considerations were found compelling in Haffner, we conclude, as did the Tax Court in Estate of Egger v. Commissioner, 89 T. C. 726 (1987), that the factors appellees rely upon, whether considered alone or in combination, are insufficient to demonstrate that Congress intended to exempt Project Notes from estate taxation in contravention of the understood meaning of § 5(e), a demonstration which must be unambiguous under the principle disfavoring" }, { "docid": "15730556", "title": "", "text": "Trust Co. v. United States, 14 F.Supp. 541, 82 Ct.Cl. —, decided May 4, 1936, it was held that a tax on profits from the sale of the bonds was not a tax on the bonds. In Hitner v. Lederer (D.C.) 14 F.(2d) 991, affirmed (C.C.A.) 63 F.(2d) 877, a payment in bonds was held subject to the income tax on the ground that the bonds themselves were not taxed. So also in James v. Commissioner, 13 B.T.A. 764, dividends payable in government bonds were held to be taxable. In Murdock v. Ward, 178 U.S. 139, 20 S.Ct. 775, 44 L.Ed. 1009, it was held that United States bonds belonging to the decedent were subject to an inheritance tax notwithstanding a comprehensive and general provision in the bonds exempting them from taxation. In Bromley v. McCaughn, 280 U.S. 124, 50 S.Ct. 46, 74 L.Ed. 226, it was held that gift taxes like death taxes are imposed on the exercise of the right to transfer the property and not upon the property itself. While in neither of the opinions in the two cases last cited is it said in so many words that the taxes considered were not taxes upon the bonds themselves, the decisions neces sarily so held in effect, for if the taxes in question had been direct taxes upon the bonds they unquestionably would have been invalid for more than one reason. They were, however, upheld by the Supreme Court. Starting then with the principle established by the cases above cited that the words “all taxation” mean all taxation upon the bonds themselves and do not refer to excise taxes upon some right connected with the bonds, we reach the conclusion that if the exception contained in the bond covenant, and upon which the plaintiff relies had been omitted, there would be no question but that the bonds were subject to the' tax. In other words, if the covenant had simply provided that the bonds were exempt from “all taxation,” these words woiild not include the tax in question which would have been properly imposed. The plaintiff urges," }, { "docid": "8069716", "title": "", "text": "shall not be subject to lien, levy, attachment, or forced sale to satisfy any debt or obligation contracted or incurred prior to the issuance of a certificate of competency. Earlier, the 1912 amendment, 37 Stat. 86, 88 had put it this way: “nor shall the lands or funds of Osage tribal members be subject to any claim against the same arising prior to grant of a certificate of competency. That no lands or moneys inherited from Osage allottees shall be subject to or be taken or sold to secure the payment of any indebtedness incurred by such heir prior to the time such lands and moneys are turned over to such heirs * * In 1929 and 1938, Congress amended the Act (45 Stat. 1478-79, 52 Stat. 1034, 1035) to direct that the restricted mineral lands “and all royalties and bonuses arising therefrom shall belong to the Osage Tribe of Indians and shall be disbursed to members of the Osage Tribe or their heirs or assigns as now provided by law * * B. For many years Indian trust pr restricted property was considered immune from state taxation on various theories, the last being that such properties were “federal instrumentalities” and therefore exempt by constitutional implication. See Oklahoma Tax Comm’n v. United States, 319 U.S. 598, 602-604, 63 S.Ct. 1284, 87 L.Ed. 1612 (1943). This reasoning was rejected by the Supreme Court in its Oklahoma Tax Comm’n opinion, supra, 319 U.S. 598, 603, 63 S.Ct. 1284, which then went on to consider whether immunity flowed from the Congressional restrictions on alienability and use. The case involved inheritance taxes imposed by Oklahoma on the transfer of the estates of members of the Five Civilized Tribes who held legal title to their property; the estates included restricted cash and securities under the supervision of the Secretary of the Interior. The Court held “that the restriction, without more, is not the equivalent of a congressional grant of estate tax immunity for the cash and securities” (319 U.S. at 602, 63 S.Ct. at 1285), finding that “(1) the legislative history of the Act [imposing" }, { "docid": "8069717", "title": "", "text": "many years Indian trust pr restricted property was considered immune from state taxation on various theories, the last being that such properties were “federal instrumentalities” and therefore exempt by constitutional implication. See Oklahoma Tax Comm’n v. United States, 319 U.S. 598, 602-604, 63 S.Ct. 1284, 87 L.Ed. 1612 (1943). This reasoning was rejected by the Supreme Court in its Oklahoma Tax Comm’n opinion, supra, 319 U.S. 598, 603, 63 S.Ct. 1284, which then went on to consider whether immunity flowed from the Congressional restrictions on alienability and use. The case involved inheritance taxes imposed by Oklahoma on the transfer of the estates of members of the Five Civilized Tribes who held legal title to their property; the estates included restricted cash and securities under the supervision of the Secretary of the Interior. The Court held “that the restriction, without more, is not the equivalent of a congressional grant of estate tax immunity for the cash and securities” (319 U.S. at 602, 63 S.Ct. at 1285), finding that “(1) the legislative history of the Act [imposing the restriction] refutes the contention that an exemption was intended; and (2) applica tion of the normal rule against tax exemption by statutory implication prevents our reading such an implication into the Act” (319 U.S. at 604, 63 S.Ct. at 1287). Five years later, this holding was applied to the very type of trust property now before us — Osage headrights (and funds derived therefrom) and shares of the Osage trust fund (derived from the Kansas lands) held in trust by the United States for the Indians. West v. Oklahoma Tax Comm’n, supra, 334 U.S. 717, 68 S.Ct. 1223 (1948). The Court “fail-fed] to see any substantial difference for estate tax purposes between restricted property and trust property. The power of Congress over both types of property is the same * * *. The effect which an estate or inheritance tax may have is the same in both instances; liens may be placed on both restricted and trust properties and lead to complications ; and both types of property may of necessity be depleted to" }, { "docid": "16991447", "title": "", "text": "taxation, cash and securities held for the Indians by the Secretary of the Interior, and miscellaneous personal properties and insurance. The court said that the transfer of lands which Congress by explicit command exempted from direct taxation was also exempted from estate taxes. But in respect to the other restricted properties the court said that restriction against alienation was not the equivalent of a Congressional grant of immunity from estate tax imposed under state law; that if Congress intended to prevent the state from levying a general nondiscriminatory estate tax applicable alike to Indians and all other citizens, it should say so in plain words; and that in the absence of an explicit provision of non-tax-ability, exemption of restricted properties of Indians from estate taxes did not exist. In Landman v. Commissioner, 10 Cir., 123 F.2d 787, certiorari denied 315 U.S. 810, 62 S.Ct. 799, 86 L.Ed. 1209, a full-blood restricted Creek Indian died seized of a restricted allotment of land, certain bonds representing invested proceeds derived from the production of oil and gas from the allotted land, and certain cash derived from the same source. The cash and the bonds were under the supervision and control of the Secretary of the Interior. Upon the death of the decedent, the estate passed to her heirs who likewise were restricted Indians, and the transfer of the personal property was affected by the simple expedient of bookkeeping entries in the records of the Treasury of the United States and of the Superintendent of the Five Civilized Tribes. Stressing the distinction between restrictions against alienation and exemption from taxation under federal law, it was held that even though the property was restricted the estate was liable for estate tax. And that case was cited with obvious approval in Oklahoma Tax Commission v. United States, supra. Viewed in the light of these cases, we think it is fairly clear that until Congress shall explicitly provide otherwise income of a kind in question is not exempt from income tax under federal law. The judgment is reversed and the cause remanded with direction to dismiss the" }, { "docid": "22573042", "title": "", "text": "§ 5(e) of the Housing Act of 1937, 50 Stat. 890, as amended, 42 U. S. C. § 1437i(b), do appellees endeavor to establish their exemption. Of course, we begin our analysis of § 5(e) with the statutory language itself. This section states that “[Project Notes], including interest thereon, . . . shall be exempt from all taxation now or hereafter imposed by the United States.” Well before the Housing Act was passed, an exemption of property from all taxation had an understood meaning: the property was exempt from direct taxation, but certain privileges of ownership, such as the right to transfer the property, could be taxed. Underlying this doctrine is the distinction between an excise tax, which is levied upon the use or transfer of property even though it might be measured by the property’s value, and a tax levied upon the property itself. The former has historically been permitted even where the latter has been constitutionally or statutorily forbidden. The estate tax is a form of excise tax. Greiner v. Lewellyn, 258 U. S. 384 (1922) (municipal bonds subject to federal estate taxation notwithstanding an intergovernmental tax immunity- barring a direct tax on the bond); Murdock v. Ward, 178 U. S. 139, 148 (1900) (federal tax exemption on federal bonds did not extend to taxation on the right to transfer the bonds at death); Plummer v. Coler, 178 U. S. 115 (1900) (State may calculate estate tax based on total value of property passing through the estate, including federal obligations exempt from direct taxation by the State). See also United States Trust Co. v. Helvering, supra, at 60 (applying the rule of Greiner, Murdock, and Plummer to hold that property subject to a general exemption from “all taxation” would not exempt it from excise taxes such as the estate tax); Treas. Reg. § 20.2033-1, 26 CFR § 20.2033-1 (Supp. 1964) (statutes exempting federal obligations from “all taxation” refer only to direct taxation). Cf. West v. Oklahoma Tax Comm’n, 334 U. S. 717, 727 (1948) (recognizing the distinction between direct taxes and excise taxes); Reinecke v. Northern Trust Co.," }, { "docid": "20074082", "title": "", "text": "May 10, 1928, supra. We are of the-opinion that the transfer of such land at the death of the decedent was exempt from Federal taxation under the provisions of section 4 of the Act of May 10, 1928, supra, and under the decision of the Supreme Court in Oklahoma Tax Commission v. United States, 319 U.S. 598, 63 S.Ct. 1284, 87 L.Ed. 1612. In that case there was involved the right of the State of Oklahoma to subject to its estate tax certain land exempt from direct taxation, land not exempt from direct taxation, restricted cash and securities held for the Indians by the Secretary of the Interior, and miscellaneous personal properties and insurance. The court divided 5 to 4 on the propriety of the inclusion within the estate of the Indians of the land not exempt from direct taxation, the restricted cash and securities, and the miscellaneous personal properties and insurance, but it was unanimous in holding that the land exempt from direct taxation under the provisions of section 4 of the Act of May 10, 1928, supra, should not have been included. In the majority opinion (319 U.S. at pages 610, 611 63 S.Ct. at page 1290, 87 L.Ed. 1612) it was said: “The validity of the taxes on the transfer of the land presents a somewhat different problem. Some of these lands are exempt from direct taxation by virtue of explicit congressional command. The Act of May 10, 1928, 45 Stat. 495, for example, provides that Indians of a class which includes the three deceased should select up to 160 acres of his allotted, inherited or devised restricted lands, which ‘shall remain exempt from taxation while the title remains in the Indian designated * * * or in any full-blood Indian heir of devisee,’ while all other restricted lands are made subject to taxation by Oklahoma. The state argues that congressional exemption of the land from direct state taxation does not exempt the land from an estate tax, because of the principles announced in United States Trust Co. v. Helvering, supra ¿307 U.S. 57, 59 S.Ct. 692," }, { "docid": "2153714", "title": "", "text": "sales now rest in the Registry of the District Court. The State of California now seeks to impress a lien upon the money in the Registry for State inheritance taxes allegedly due. The money was placed in the Registry under the understanding of parties and Court that it should retain the restrictions which were upon the land prior to sale. The claimed inheritance tax was based upon the succession of appellee Lee Arenas as surviving husband of Guadalupe and Richard Brown Arenas as surviving son of Eleuteria Brown Arenas, to the allotted lands. The District Court, in a comprehensive opinion, held that the properties transferred in the instant case were exempted by Congress from direct taxation and thus could not be included in the estate for inheritance tax purposes. The opinion is reported as Arenas V. United States, 140 F.Supp. 606. The Appeal Oklahoma Tax Commission v. United States, 319 U.S. 598, 63 S.Ct. 1284, 87 L.Ed. 1612 and West v. Oklahoma Tax Commission, 334 U.S. 717, 68 S.Ct. 1223, 92 L.Ed. 1676, are authorities for the proposition that merely because property transferred at the death of an Indian is held in trust by the United States does not per se mean that the property is immune from inheritance tax; that, in order to be immune from inheritance tax, it must be shown that the property was exempted by Congress from direct taxation. The District Court held that when Congress enacted legislation ceding limited state jurisdiction over civil and criminal actions in Indian lands of California and, in such legislation, declared that: “Nothing * * * [herein] shall authorize the alienation, encumbrance, or taxation of any real or personal property * * * belonging to any Indian * * * that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States * * * .” 67 Stat. 588, 589, Act Aug. 15, 1953, 28 U.S.C. § 1360 (b), 18 U.S.C. § 1162(b). it intended to exempt such Indians’ land from direct taxation. We doubt the validity of such construction." }, { "docid": "20301400", "title": "", "text": "the property, could be taxed.” Id. at 355, 108 S.Ct. 1179 (emphasis added). The Court thus concluded that the Project Notes were not exempt from federal estate taxes because estate taxes were excise taxes, “levied upon the use or transfer of property ...” rather than “a tax levied upon the property itself.” Id. In support of its conclusion, the Court cited a series of cases standing for the principle that an exemption of specific property from taxation did not necessarily extend to excise taxes involving that property. Id. at 355, 108 S.Ct. 1179 (citing Greiner v. Lewellyn, 258 U.S. 384, 386-87, 42 S.Ct. 324, 66 L.Ed. 676 (1922) (holding that federal estate tax applied to municipal bonds despite immunity barring a direct tax on the bond); Murdock v. Ward, 178 U.S. 139, 148, 20 S.Ct. 775, 44 L.Ed. 1009 (1900) (holding that state inheritance tax measured by the total amount of a bequest was a valid tax even if the amount of the bequest included bonds statutorily exempt from taxation); Plummer v. Coler, 178 U.S. 115, 117, 20 S.Ct. 829, 44 L.Ed. 998 (1900) (permitting federal estate tax under the same rationale as Murdock where statute exempted federal bonds from “all taxes or duties of the United States, as well as from taxation in any form by or under state, municipal, or local authority....”); United States Trust Co. v. Helvering, 307 U.S. 57, 60, 59 S.Ct. 692, 83 L.Ed. 1104 (1939) (relying on Murdock and Plummer to hold that an exemption for War Risk Insurance from “all taxation” did not exempt the insurance from federal estate tax)). From these cases, the Court surmised that “on the rare occasions when Congress has exempted property from estate taxation it has generally adverted explicitly to that tax, rather than generieally to ‘all taxation.’ ” Wells Fargo, 485 U.S. at 356, 108 S.Ct. 1179 (emphasis added) (quotation marks and citation omitted). According to plaintiffs and the district court in this case, because Wells Fargo and the cases it relies upon interpret statutes exempting property from “all taxation,” “all taxes,” or “taxation in any form,”" }, { "docid": "20074084", "title": "", "text": "83 L.Ed. 1104]. A majority of the Court concludes that this principle does not apply to Indian lands specifically exempted from direct taxation. We therefore hold that the transfer of those lands which Congress has exempted from direct taxation by the state are also exempted from estate taxes.” Mr. Justice Murphy, in his dissenting opinion, in which the Chief Justice and Mr. Justice Reed and Mr. Justice Frankfurter joined, said: “* * * Most of their allotted lands were expressly exempt from taxation, and, as the opinion of the Court recognizes, this removed them from the operation of Oklahoma’s estate tax.” In a note supplementing this statement he further said: “The fact that the exemptions do not mention inheritance or estate taxes is unimportant. As pointed out before, contrary to the general rule Indian tax exemptions are to be liberally construed. See Carpenter v. Shaw, 280 U.S. 363, 366, 367, 50 S.Ct. 121, 122, 74 L.Ed. 478. For that reason decisions, such as United States Trust Co. v. Helvering, 307 U.S. 57, 59 S.Ct. 692, 83 L.Ed. 1104, that statutory exemptions from taxation do not include an exemption from estate taxes, have no application here.” It appears, therefore, that both the majority and the minority were in agreement that the Act of May 10, 1928, was intended not only to cover direct taxes on the lands, but was intended to cover as well a tax on the privilege of transferring the lands at death. The tax under consideration in Oklahoma Tax Commission v. United States, supra, was a State tax; the tax levied in the case at bar is a Federal tax, but this is immaterial, since both taxes are identical in character; both are estate taxes levied upon transfers of property by death. Section 301 (a) of the Revenue Act of 1926, c. 27, 44 Stat. 9, 69, 26 U.S.C.A.Int.Rev. Acts, page 225, levies a tax “upon the transfer of the net estate of every decedent * * The Oklahoma tax, according to the opinion of the Supreme Court in Oklahoma Tax Commission v. United States, supra, 319 U.S." }, { "docid": "16991446", "title": "", "text": "and that the income was subject to tax. In Superintendent of Five Civilized Tribes v. Commissioner, supra, the taxpayer was a full-blood Creek Indian. Certain funds derived from his restricted allotment of land were invested and the proceeds therefrom were collected and held in trust under the direction of the Secretary of the Interior. Although the land from which the income came was restricted against alienation, the court said that it found nothing in any applicable statute which expressed a definite intent to exclude from tax income such as that involved; and that taxation of income from trust funds of an Indian ward was not so inconsistent with that relationship that exemption was a necessary implication. In Oklahoma Tax Commission v. United States, supra, the question was whether statutes of Oklahoma imposing inheritance taxes reached the estates of members of the Five Civilized Tribes of Indians in that State. The restricted properties of which the estates were composed fell into four main categories. They were land exempt from direct taxation, land not exempt from direct taxation, cash and securities held for the Indians by the Secretary of the Interior, and miscellaneous personal properties and insurance. The court said that the transfer of lands which Congress by explicit command exempted from direct taxation was also exempted from estate taxes. But in respect to the other restricted properties the court said that restriction against alienation was not the equivalent of a Congressional grant of immunity from estate tax imposed under state law; that if Congress intended to prevent the state from levying a general nondiscriminatory estate tax applicable alike to Indians and all other citizens, it should say so in plain words; and that in the absence of an explicit provision of non-tax-ability, exemption of restricted properties of Indians from estate taxes did not exist. In Landman v. Commissioner, 10 Cir., 123 F.2d 787, certiorari denied 315 U.S. 810, 62 S.Ct. 799, 86 L.Ed. 1209, a full-blood restricted Creek Indian died seized of a restricted allotment of land, certain bonds representing invested proceeds derived from the production of oil and gas from" }, { "docid": "22185018", "title": "", "text": "benefits due or to become due . . . shall be exempt from taxation . . .” However, this amendment served only to clarify the original provision for exemption, without more. Unless resort is had to enlargement by implication, this exemption means only that the proceeds or benefits of a War Risk policy are exempt from taxation. Exemptions from taxation do not rest upon implication. An estate tax is not levied upon the property of which an estate is composed. It is an excise imposed upon the transfer of or shifting in relationships to property at death. The tax here is no less an estate tax because the proceeds of the policy were paid by the Government directly to the beneficiary; the taxing power was nevertheless exercised upon “the transfer of property procured through expenditures by the decedent with the purpose, effected at his death, of having it pass to another.” In an analogous situation, federal bonds exempt by statute from all taxation have been held subject to a federal inheritance tax. And state inheritance taxes can be measured by the value of federal bonds exempted by statute from state taxation in any form. Similarly, the statutory immunity of War Risk Insurance from taxation does not include an immunity from excises upon the occasion of shifts of economic interests brought about by the death of an insured. Petitioner makes the further point that the inclusion of proceeds of the War Risk policy for purposes of an estate tax amounts to'an impairment of the Government’s contract with the insured veteran, in violation of the Fifth Amendment to the Constitution. But neither the Act of 1924, as amended, nor any of the provisions of the War Risk Insurance Act purported to exempt War Risk Insurance from death duties. Therefore, no statu tory exemption which could be considered a provision of the insurance contract has been affected by the imposition of the estate tax in this case. The judgment is Affirmed. § 302 (g) Revenue Act of 1926, as amended. 43 Stat. 607, 613. 98 F. 2d 734. State courts have differed as" }, { "docid": "14343214", "title": "", "text": "nonresident alien not engaged in business in the United States were exempt from the federal estate tax, Treasury Regulation 70, Article 11 was amended by adding the following new sentence: “In case the decedent was a nonresident alien not engaged in business in the United States, bonds, notes and certificates of indebtedness of the United States, and bonds of the War Finance Corporation, beneficially owned by such alien, should not be included.” This provision continued 'substantially unchanged until 1941, when it was amended by adding at the end “however, bonds, notes, and certificates of indebtedness of the United States, issued on or after March 1, 1941, which such decedent beneficially owned, should be included in the gross estate.” Despite this legislative and administrative history, the respondent contends that section 4 of -the Victory Liberty Loan Act exempting the bonds “from any and all taxation” does not include, and was not intended by Congress to include, the federal estate tax. The argument rests on the distinction between a direct tax on property and an estate tax, which is an excise tax. The respondent urges that it is the principal and interest of the bonds as property — not the bondholder’s privilege of passing them on at death, which the statute exempts. He relies on Murdock v. Ward, 178 U.S. 139, 20 S.Ct. 775, 44 L.Ed. 1009, relating to the federal inheritance tax imposed by the War Revenue Act of 1898, 30 Stat. 448, and Plummer v. Coler, 178 U.S. 115, 20 S.Ct. 829, 44 L.Ed. 998, relating to the New York inheritance tax. Those cases support the proposition that a provision exempting United States bonds from taxation as to principal and interest, without more, relates exclusively to direct taxation of them as property. The cited cases would be persuasive, if Congress had not shown an intent to use the phrase “exempt * * * from all taxation” to include estate taxes by expressly excepting them in one section of the statute and not in the other, and if the Treasury Department had not for 20 years construed the statute as granting" }, { "docid": "15730555", "title": "", "text": "exempt, both as to principal and interest, from all taxation now or hereafter imposed by the United States, any State, or any of the possessions of the United States, or by any local taxing authority, except (a) estate or inheritance taxes, and (b) graduated additional income taxes, commonly known as surtaxes, and excess-profits and war-profits taxes, now or hereafter imposed by the United States, upon the income or profits of individuals, partnerships, associations, or corporations. The interest on an amount of bonds authorized by said Act approved September 24, 1917, as amended, •the principal of which does not exceed $5,-000, owned by any individual, partnership, association, or corporation, shall be exempt from the taxes provided for in clause (b) above.” This covenant conformed to the act authorizing the issuance of the bonds which contained substantially the same language. The fact that a tax is in some way related to government bonds and is measured by the value of the bonds does not make it a tax upon the bonds themselves. In Central Hanover Bank & Trust Co. v. United States, 14 F.Supp. 541, 82 Ct.Cl. —, decided May 4, 1936, it was held that a tax on profits from the sale of the bonds was not a tax on the bonds. In Hitner v. Lederer (D.C.) 14 F.(2d) 991, affirmed (C.C.A.) 63 F.(2d) 877, a payment in bonds was held subject to the income tax on the ground that the bonds themselves were not taxed. So also in James v. Commissioner, 13 B.T.A. 764, dividends payable in government bonds were held to be taxable. In Murdock v. Ward, 178 U.S. 139, 20 S.Ct. 775, 44 L.Ed. 1009, it was held that United States bonds belonging to the decedent were subject to an inheritance tax notwithstanding a comprehensive and general provision in the bonds exempting them from taxation. In Bromley v. McCaughn, 280 U.S. 124, 50 S.Ct. 46, 74 L.Ed. 226, it was held that gift taxes like death taxes are imposed on the exercise of the right to transfer the property and not upon the property itself. While in neither" }, { "docid": "1493402", "title": "", "text": "specific statute of the United States which provided for the exemption of income derived therefrom. Other cases cited by appellee are readily distinguishable. In Igleheart v. Commissioner, 5 Cir., 77 F.2d 704, 712, Federal Farm Loan Bonds were included in the gross estate of the decedent (Igleheart and others were executors of the estate) subject to the estate tax. The levied and collected tax was not on income; a few lines from the decision will serve to explain the court’s position. “The estate tax is not a tax on property. It is an excise on the privilege of transmitting property of a decedent upon his death; the amount of the tax being measured by the value of the property transmitted. * * * The provision exempting from taxation Federal Farm Loan bonds and the income therefrom is not violated by measuring the estate tax by the value, at the time of the decedent’s death, of all of his property, including such bonds, as the United States may tax the transmission of property upon the death of its former owner, regardless of the character of that property.” Citing Plummer v. Coler, 178 U.S. 115, 20 S.Ct. 829, 44 L.Ed. 998, and Murdock v. Ward, 178 U.S. 139, 20 S.Ct. 775, 44 L.Ed. 1009, also cited by the appellee. United States Trust Co. of New York v. Commissioner, 2 Cir., 98 F.2d 734, involved the inclusion in gross estate of proceeds of a war risk insurance policy, and there likewise the tax was upon the right to transfer property at death, which is comparable to the Igleheart case immediately above. In Phipps v. Commissioner, 10 Cir., 91 F.2d 627, 112 A.L.R. 1441; Hamersley v. United States, Ct.Cl, 16 F.Supp. 768, and Central Hanover Bank & Trust Co. v. United States, Ct.Cl., 14 F.Supp. 541, the exemption from taxation extended only to principal and interest, not to “income”. While not of importance to the case at hand, it is interesting to note that the Supreme Court of the United States held invalid a recording tax upon mortgages in the state of Alabama, so" }, { "docid": "22185017", "title": "", "text": "of Tax Appeals upheld the determination of the Commissioner, and the Circuit Court of Appeals affirmed. Congress has manifested a consistent policy in the Revenue Acts from 1918 to 1934, when the veteran died, by impositions of estate taxes upon transfers at death of proceeds of all life insurance (not payable to an insured’s estate) in- excess of forty thousand dollars. This has been in harmony with a general plan of graduating income and inheritance taxes to accord with the respective sizes of incomes and estates. And the Treasury Regulations have stated that “The statute provides for the inclusion in the gross estate of . . . All insurance [not for the benefit of an estate] ... to the extent that it exceeds . . . forty thousand dollars .... The term ‘insurance’ refers to life insurance of every description, ...” But petitioner invokes the provision of the World War Veterans’ Act, 1924, that insurance thereunder “shall be exempt from all taxation.” An amendment to that Act of August 12, 1935 provides that “Payments of benefits due or to become due . . . shall be exempt from taxation . . .” However, this amendment served only to clarify the original provision for exemption, without more. Unless resort is had to enlargement by implication, this exemption means only that the proceeds or benefits of a War Risk policy are exempt from taxation. Exemptions from taxation do not rest upon implication. An estate tax is not levied upon the property of which an estate is composed. It is an excise imposed upon the transfer of or shifting in relationships to property at death. The tax here is no less an estate tax because the proceeds of the policy were paid by the Government directly to the beneficiary; the taxing power was nevertheless exercised upon “the transfer of property procured through expenditures by the decedent with the purpose, effected at his death, of having it pass to another.” In an analogous situation, federal bonds exempt by statute from all taxation have been held subject to a federal inheritance tax. And state inheritance" }, { "docid": "3873887", "title": "", "text": "to be included. See Treas. Reg. 105, Sec. 81.13 (1942). The validity of the amendment is here in issue. The taxpayer’s position is that this class of bonds is exempt from estate tax under Section 4 of the Victory Liberty Loan Act of March 3, 1919, 40 Stat. 1309, 1311, 31 U. S.C.A. § 750, which provided that such bonds shall, while beneficially owned by a non-resident alien individual not engaged in business in the United States, “be exempt both as to principal and interest from any and all taxation [now or hereafter] imposed * * But the Government argues that the Federal estate tax is not a tax on the principal or interest of any property; it is an excise tax imposed on the transfer of property upon death, measured by the value of the property passing. United States Trust Co. of N. Y. v. Hel-vering, 307 U.S. 57, 59 S.Ct. 692, 83 L.Ed. 1104; Plummer v. Coler, 178 U.S. 115, 20 S.Ct. 829, 44 L.Ed. 998; Murdock v. Ward, 178 U.S. 139, 20 S.Ct. 775, 44 L.Ed. 1009; Phipps v. Commissioner, 10 Cir., 91 F.2d 627. And hence it is not such a tax as is contemplated by the exempting statute. The precise issue has received the consideration of both the Tax Court and the Court of Appeals for the Second Circuit, with conflicting resolution. In Estate of Jandorf v. Commissioner, 9 T.C. 338, No. 50, CCH Dec. par. 16,011 (Sept. 12, 1947), the Tax Court decided in favor of the Government and was reversed by the Court of Appeals, (1948) 171 F.2d 464, 466. But in a subsequent decision involving the same issue, the Tax Court, with two dissents declined to follow the Second Circuit and reaffirmed its original position. Estate of de Guebriant v. Commissioner, 14 T.C., No. 79, CCH Dec. par. 17,600 (April 18, 1950). This difference of result follows from different approaches to the basic problem of statutory construction. That difference of approach centers about a comparison of the exempting phraseology of Section 4 of the Victory Liberty Loan Act \" with the exempting" } ]

[ { "docid": "22859467", "title": "", "text": "In Holt v. United States, 218 U. S. 245, 252-253 (1910) (Holmes, J.), the Court found that the common-law evidentiary duty permitted the compulsion of various forms of physical evidence. In Schmerber v. California, 384 U. S. 757, 764 (1966), this Court observed that traditionally witnesses could be compelled, in both state and federal courts, to submit to “fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” See also United States v. Wade, 388 U. S. 218 (1967). In Gilbert v. California, 388 U. S. 263, 266-267 (1967), handwriting was held, “like the . . . body itself” to be an “identifying physical characteristic,” subject to production. In United States v. Dionisio, 410 U. S. 1 (1973), and United States v. Mara, 410 U. S. 19 (1973), this Court again confirmed that handwriting is in the nature of physical evidence which can be compelled by a grand jury in the exercise of its subpoena power. See also United States v. Mullaney, 32 F. 370 (CC Mo. 1887). This broad duty to provide most relevant, nonprivileged evidence has not been considered to exist only in the common law. The Court has recognized that by statute “Congress may provide for the performance of this duty.” Blackmer v. United States, 284 U. S. 421, 438 (1932). By imposing an obligation to produce documents as well as to appear and give testimony, we believe the language of § 7602 suggests an intention to codify a broad testimonial obligation, including an obligation to provide some physical evidence relevant and material to a tax investigation, subject to the traditional privileges and limitations. This conclusion seems inherent in the imposition of an obligation to “appear,” since an obligation to appear necessarily entails an obligation to display physical features to the summoning authority. Congress thereby authorized the Service to compel the production of some physical evidence, and it is certainly possible to conclude that this authorization extended to the execution of handwriting exemplars, one variety of relevant physical evidence." } ]

[ { "docid": "15262565", "title": "", "text": "Amendment privilege against self-incrimination. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). The compulsion of handwriting exemplars has been the subject of far less protection than the compulsion of testimony and documents.13 444 U.S. at 712-713 and 718, 100 S.Ct. at 878-879 and 881 (Footnotes omitted). These authorities make it clear that (as here) a subpoena may be issued under Rule 17(c) of the Federal Rules of Criminal Procedure for the production of handwriting exemplars without calling for testimony or communications and that the mere giving of exemplars to be used solely as a standard for comparison in order to determine whether the witness is the author of certain writings, constitutes non-testimonial physical evidence. It does not constitute testimony or testimonial communications unless it comprises “the content as opposed to the physical character of [the] writing.” United States v. Mara, 410 U.S. at 22, 93 S.Ct. at 776 footnote. The Government seeks here only the physical character of the writing. The marital adverse testimony privilege, on which Mr. and Mrs. McKeon rely, is a rule in the Federal courts which grants to the witness-spouse alone the privilege of refusing to testify against a defendant spouse. Relying on Gilbert v. California, supra, two Federal District Courts have held that “The rule does not prohibit giving non-testimonial evidence against a spouse nor otherwise generally protect one spouse being used as the source of evidence against the other. The Supreme Court has held that handwriting exemplars are neither communicative nor testimonial * * * » In re Clark, 461 F.Supp. 1149 (S.D.N.Y.1978). See also In re Grand Jury Proceedings, Rovner, 377 F.Supp. 954 (E.D.Pa.), aff’d mem, 500 F.2d 1400 (3d Cir.1974), cert. denied, 419 U.S. 1106, 95 S.Ct. 776, 42 L.Ed.2d 802 (1975). Thus, given the United States Supreme Court’s view that handwriting exemplars (as opposed to the content of same) are neither communicative nor testimonial, it follows that the marital adverse testimony privilege does not preclude a Rule 17(c) subpoena therefor. Moreover, although the privilege does apply to any questions to the witness-spouse with respect to the" }, { "docid": "3187835", "title": "", "text": "States Attorney for the sole purpose of comparing handwriting. No part of the writing was to be used for any other purpose and no part of the text was to be used for any purpose except the comparison of handwriting. Patrick Mertens moved to suppress introduction of the evidence for any purpose. Mertens based this motion on claims of violation of the right of protection against unreasonable search and seizure under the 4th Amendment, the rights to be protected against compulsory self-incrimination under the 5th Amendment and the privilege of confidentiality of communication between lawyer and client. Requiring a defendant to produce examples of his handwriting does not violate the privilege against self-incrimination under the 5th Amendment: “A mere handwriting exemplar, in contrast to the contents of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection.” Gilbert v. California, 388 U.S. 263, at pp. 266-267, 87 S.Ct. 1951, at p. 1953, 18 L.Ed. 2d 1178 (1967). There is no violation of 4th Amendment protection against unreasonable search and seizure by compelling the production of handwriting exemplars. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Doe (Schwartz) 457 F.2d 895, 898-899 (3rd Cir. 1972). There is no violation of the protection against unreasonable search and seizure when the objects seized are in plain view of a person lawfully present at the moment of the view. The papers were not in a place protected by the 4th Amendment. They were visible in the hands of a spectator in a public courtroom. They were not concealed upon the person of the spectator requiring a search. Thus we have no question as to whether the exigencies of the situation would require a warrant. Such a doctrine applies only when there ' is a claim of “plain view” of the object seized where otherwise a warrant would be required, such as a seizure connected with an arrest of a suspect. Fed.R.Cr.P. 17(c) allows the" }, { "docid": "10252342", "title": "", "text": "or seizure is unreasonable depends upon the particular facts and circumstances of each case, with an exact formula to determine reasonableness being impossible to formulate. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Smith v. United States, 103 U.S.App.D.C. 48, 254 F.2d 751 (1958), cert. denied, 357 U.S. 937, 78 S.Ct. 1388, 2 L.Ed.2d 1552 (1958). The narrow issues presented for determination by the Government’s petition are (1) whether a compelled handwriting exampiar comes within the search and seizure provisions of the Fourth Amendment and, if the answer to this question is in the affirmative, (2) whether the ordering of the exemplars would be an unreasonable search and seizure. I The issue of whether the Constitution prohibits the Government from compelling an individual to produce handwriting exemplars or from using such forced exemplars in a criminal trial has come to the fore in recent years. Decisions of the United States Supreme Court clearly indicate that the Fifth Amendment does not prohibit the compelling or using of such exemplars and that handwriting is not a personal communication of a defendant but rather “an identifying physical characteristic.” United States v. Wade, 388 U.S. 218, 222-223, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); cf., Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). As to the relationship of compelled handwriting exemplars to the Fourth Amendment, all doubts as to the application of this Amendment to physical evidence seized from an individual which is merely an element of his physical characteristics were resolved by the Supreme Court in Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). In that case, the Supreme Court established that law enforcement officials may not compel the production of physical evidence, absent a showing of the reasonableness of the seizure, even if that physical evidence is an element of an individual’s physical characteristics such as fingerprint evidence. The Court stated: “ * * * (W)e find no merit in the suggestion *" }, { "docid": "1689532", "title": "", "text": "issues have been conclusively resolved against the defendant by the majority opinion of the Supreme Court written by Mr. Justice Brennan in Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, (June 12, 1967). The conflicting views upon such issues are fully discussed in the majority and dissenting opinions. We are bound by the majority opinion. On the Fifth Amendment issue, Gilbert holds: “The taking of the exemplars did not violate petitioner’s Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of ‘an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers,’ and not ‘compulsion which makes a suspect or accused the source of “real or physical evidence” * * Schmerber v. [State of] California, 384 U.S. 757, 763-764, [86 S.Ct. 1826, 16 L.Ed.2d 908]. One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, ante, [87 S.Ct.] at 1926. No claim is made that the content of the exemplar was testimonial or communicative matter. Cf. Boyd v. United States, 116 U.S. 616 [6 S.Ct. 524, 29 L.Ed. 746].” In our present case as. in Gilbert, the exemplars contained no testimonial or communicative matter. The Gilbert holding on the Sixth Amendment reads: “The taking of the exemplars was not a ‘critical’ stage of the criminal proceedings entitling petitioner to the assistance of counsel. Putting aside the fact that the exemplars were taken before the indictment and appointment of counsel, there is minimal risk that the absence of counsel might derogate his right to a fair trial. Cf. United States v. Wade, ante. If, for some reason, an unrepresentative exemplar is taken, this can be brought out and corrected through" }, { "docid": "12046480", "title": "", "text": "time is in conflict with the Manual. Accordingly, the military judge erred in refusing to consider the merits of defense objections to reception of evidence concerning the statements. Of course, our conclusion as to this local Rule of Practice does not mean that all local rules are invalid. We only have before us a Rule which we have determined conflicts with a provision of the Manual for Courts-Martial — just as was true of the rule held invalid in Kelson. Ill The Court of Military Review concluded that the two statements by appellant to Sergeant Thompson “can be viewed properly as a physical act, such as giving voice or handwriting exemplars, which requires no preliminary warning.” Unpublished opinion at 2. We recognize that, under some circumstances, the words spoken or written by an accused may be received in evidence even though they were taken by an investigator without any Article 31(b), UCMJ, 10 U.S.C. § 831(b), warning. For example, handwriting exemplars are admissible despite the absence of a warning. United States v. Lloyd, 10 M.J. 172 (C.M.A. 1981). The rationale is that Article 31, like the Fifth Amendment, focuses on testimonial compulsion. See United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973) (handwriting exemplars); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (handwriting exemplars); see also United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (voice exemplars); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (voice exemplars). However, these were cases where the content or meaning of the words spoken or written was irrelevant. Only the physical characteristics of the words — how they were said and not what was said— were material. In the present case, however, the Government was seeking to bring before the trier of fact the contents of the utterances. Under these circumstances, the guiding precedent is People v. Rucker, 26 Cal.3d 368, 162 Cal.Rptr. 13, 605 P.2d 843 (1980), where a defendant’s statements were offered to rebut a defense of voluntary intoxication. The People" }, { "docid": "12051475", "title": "", "text": "S.Ct. 1684, 6 L.Ed.2d 1081 (1961), gave impetus to the process of incorporating various provisions of the Bill of Rights into the Fourteenth Amendment, the Court considered whether extraction of a blood specimen infringed on the privilege against self-incrimination or constituted an unreasonable search and seizure. In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), both questions were answered in the negative. In that case a blood specimen had been taken from a driver who had been arrested for drunk driving but who had refused to submit voluntarily to the blood test. That the Supreme Court had adopted Wigmore’s theory of “testimonial compulsion” in interpreting the privilege against self-incrimination became evident in cases like United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (voice exemplars); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) (handwriting exemplars); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (grand jury subpoenas for voice exemplars), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973) (grand jury subpoenas for handwriting exemplars). Under this view, words or conduct which lack testimonial characteristics are not protected by the Fifth Amendment. Cf. Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910); 8 Wigmore, Evidence § 2263 (McNaughton rev. 1961). This Court has rejected efforts to utilize the same theory of “testimonial compulsion” as an aid in interpreting the intent of Congress regarding Article 31 of the Uniform Code of Military Justice. Now, in the face not only of the Supreme Court’s opinions but also of a mounting tide of state court precedents, the question requires a new look. Recently we refused to find that a right to counsel existed with respect to handwriting exemplars which a Secret Service agent obtained from a serviceperson who was in confinement at the time. United States v. McDonald, 9 M.J. 81 (C.M.A. 1980). We could not conceive that the right to counsel during custodial interrogation that was made available by Miranda v." }, { "docid": "6481745", "title": "", "text": "voice exemplar in the exact words of a telephone conversation taped by the Government. The Court found this constitutional, stating: It has long been held that the compelled display of identifiable physical characteristics infringes no interest protected by the privilege against compulsory self-incrimination. “[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.” . . . Wade (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)) and Gilbert definitively refute any contention that the compelled production of the voice ex emplars in this case would violate the Fifth Amendment. The voice recordings were to be used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what was to be said. Id., at 5 of 410 U.S., 93 S.Ct. at 767, quoting Holt v. United States, 218 U.S. 245, 252, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910). The present case is indistinguishable . from Dionisio on legal grounds. While Dionisio dealt with voice exemplars and the exemplars in the instant case are handwritten, the Court in Dionisio, as in the other leading cases on point (Mara, Gilbert, Wade), dealt with such exemplars interchangeably and without constitutional differentiation. Moreover, in the instant case the exemplars were to be used only as a standard of comparison, and the trial transcript shows that both prosecutor and handwriting expert strictly limited themselves to such use. Defendant argues on nonconstitutional grounds that the exemplar ordered was unduly prejudicial at trial. However, it is the trial court’s duty to weigh the potential prejudice from overemphasis against the usefulness of the exemplars for handwriting analysis. We cannot say that the trial court abused its discretion. Cf. United States v. Izzi, 427 F.2d 293, 295 (2d Cir.), cert. den., 399 U.S. 928, 90 S.Ct. 2244, 26 L.Ed.2d 794 (1970); Fountain v. United States, 384 F.2d 624, 632 (5th Cir. 1967)," }, { "docid": "15262560", "title": "", "text": "384 U.S. 757, 763-764, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908. One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, [388 U.S. 218] at 222-223, 87 S.Ct. [1926] at 1929-1930 [18 L.Ed.2d 1149]. 388 U.S. at 266-267, 87 S.Ct. at 1953. Thereafter in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), in a case involving voice exemplars, the same Court noted: Wade and Gilbert definitively refute any contention that the compelled production of the voice exemplars in this case would violate the Fifth Amendment. The voice recordings were to be used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what was to be said. 410 U.S. at 7, 93 S.Ct. at 768. And in the companion case of United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), the Court, in the case of a potential defendant who was directed by a subpoena to produce handwriting and printing exemplars, held that: We have held today in Dionisio, that a grand jury subpoena is not a “seizure” within the meaning of the Fourth Amendment and, further, that that Amendment is not violated by a grand jury directive compelling production of “physical characteristics” that are “constantly exposed to the public.” Supra, [410 U.S.] at 9-10, 93 S.Ct., at 769. Handwriting, like speech, is repeatedly shown to the public, and there is no more expectation of privacy in the physical characteristics of a person’s script than there is in the tone of his voice. See United States v. Doe (Schwartz), 2 Cir., 457 F.2d 895, 898-899; Bradford v. United States, 5 Cir., 413 F.2d 467, 471-472; cf. Gilbert v. California, 388 U.S. 263, 266-267," }, { "docid": "6481744", "title": "", "text": "outside [the Fifth Amendment’s] protection.” As for Fourth Amendment rights, the Supreme Court has recently held that handwriting exemplars taken alone are outside the scope of the Fourth Amendment’s protection because a person has no reasonable expectation of privacy regarding his handwriting. United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), rev’g, 454 F.2d 580 (7th Cir. 1971). See also United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), rev’g in part, aff’g in part, 442 F.2d 276 (7th Cir. 1971). Moreover, there is no suggestion in the record that the exemplars were the fruit of an independently illegal seizure such as that in Davis v. Mississppi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). The appellant’s argument that it was error for the trial court to require that exemplars be in the form of allegedly forged words also has been answered by the Supreme Court and is without merit. In Dionisio, the defendant was ordered by the district court to give a voice exemplar in the exact words of a telephone conversation taped by the Government. The Court found this constitutional, stating: It has long been held that the compelled display of identifiable physical characteristics infringes no interest protected by the privilege against compulsory self-incrimination. “[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.” . . . Wade (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)) and Gilbert definitively refute any contention that the compelled production of the voice ex emplars in this case would violate the Fifth Amendment. The voice recordings were to be used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what was to be said. Id., at 5 of 410 U.S., 93 S.Ct. at 767, quoting Holt v. United States, 218 U.S." }, { "docid": "22049216", "title": "", "text": "number of rather unusual spelling mistakes, and the material dictated to Pheaster included those words. The fact that a number of the same spelling mistakes appeared both in the notes and in the exemplars was introduced into evidence at the trial. A conventional analysis was also performed to compare the handwriting on the two sources, but the Government expert could only testify that the handwriting on the note from the kidnappers appeared to be disguised. He was unable to state positively that the note from the kidnappers was written by Pheaster. Pheaster acknowledges that the taking and subsequent use of handwriting exemplars for identification purposes does not violate the Fifth Amendment’s protection against self-incrimination. In Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the Supreme Court reached this conclusion through the following reasoning: “First. The taking of the exemplars did not violate petitioner’s Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of ‘an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers,’ and not ‘compulsion which makes a suspect or accused the source of “real or physical evidence” . . . .’ Schmerber v. State of California, 384 U.S. 757, 763-764 [86 S.Ct. 1826, 1833, 16 L.Ed.2d 908]. One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, supra, 388 U.S., at 222-223 [87 S.Ct. [1926], at 1929-1930, 18 L.Ed.2d 1149], No claim is made that the content of the exemplars was testimonial or communicative matter. Cf. Boyd v. United States, 116 U.S. 616 [6 S.Ct. 524, 29 L.Ed. 746].” 388 U.S. at 266-267, 87 S.Ct. at 1953. Pheaster argues that the instant case is distinguishable from Gilbert" }, { "docid": "15262564", "title": "", "text": "States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967), handwriting was held, “like the . .. body itself” to be an “identifying physical characteristic,” subject to production. In United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), this Court again confirmed that handwriting is in the nature of physical evidence which can be compelled by a grand jury in the exercise of its subpoena power. See also United States v. Mullaney, 32 F. 370 (CC Mo.1887). % ■%. sf: s{: % Nor is there any constitutional privilege of the taxpayer or other parties that is violated by this construction. Compulsion of handwriting exemplars is neither a search or seizure subject to Fourth Amendment protections, United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), nor testimonial evidence protected by the Fifth Amendment privilege against self-incrimination. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). The compulsion of handwriting exemplars has been the subject of far less protection than the compulsion of testimony and documents.13 444 U.S. at 712-713 and 718, 100 S.Ct. at 878-879 and 881 (Footnotes omitted). These authorities make it clear that (as here) a subpoena may be issued under Rule 17(c) of the Federal Rules of Criminal Procedure for the production of handwriting exemplars without calling for testimony or communications and that the mere giving of exemplars to be used solely as a standard for comparison in order to determine whether the witness is the author of certain writings, constitutes non-testimonial physical evidence. It does not constitute testimony or testimonial communications unless it comprises “the content as opposed to the physical character of [the] writing.” United States v. Mara, 410 U.S. at 22, 93 S.Ct. at 776 footnote. The Government seeks here only the physical character of the writing. The marital adverse testimony privilege, on which Mr. and Mrs." }, { "docid": "7609499", "title": "", "text": "the jury’s right to draw unfavorable inferences. Defendant challenges this as violating his Fifth Amendment right to avoid compelled testimonial self-incrimination, magnified by permitting comment thereon. At first blush there might appear to be no possible merit in this complaint, it being well settled that handwriting is a matter of physical characteristics which may be demanded without infringing constitutional rights. See United States v. Euge, 1980, 444 U.S. 707, 713, 100 S.Ct. 874, 879, 63 L.Ed.2d 141. Indeed, it is the stock in trade of handwriting experts that some characteristics are so personally entrenched that disguise is almost impossible. See Harrison, Suspect Documents, (1958) 292, 349-51. In Gilbert v. California, 1967, 388 U.S. 263, at 266-67, 87 S.Ct. 1951, at 1953-54, 18 L.Ed.2d 1178, the Court said, in holding that handwriting exemplars constitute “real or physical evidence” not within the Fifth Amendment privilege protecting communications, “One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, supra, [388 U.S. 218] at 222-223 [87 S.Ct. 1926 at 1929-1930, 18 L.Ed.2d 1149]. No claim is made that the content of the exemplar was testimonial or communicative matter.\" (Emphasis suppl.) The government here, however, did not limit its demand to handwriting exemplars as such. When the agent stated the words he wished written down, defendant replied that he wanted to see what he was to write, rather than take dictation. When the agent refused, defendant’s counsel asked whether the agent would permit counsel to write out what defendant was to write, but this, too, was rejected on the ground — which was the fact — that the court had approved the government’s proposed dictation procedure. Defendant refused to comply, even though the court held him in contempt. The only difference we see between dictation and being" }, { "docid": "6481743", "title": "", "text": "Government then moved in open court, with supporting affidavits, that Rogers be compelled to execute exemplars in the form objected to by Rogers. The court so ordered and Rogers complied. Rogers then sought an order suppressing use of those exemplars at trial, which motion the court denied. Apparently Rogers did not renew his objection when the exemplars were used at trial, although he reasserts the claim on appeal. Defendant by his actions has not waived his right to raise on appeal his pretrial objection. Whitlow, supra. Rogers does not appear to argue that no exemplar constitutionally could be required of him, and it is clear that such argument could not succeed. No question of right to counsel is raised in this case, and a general Fifth Amendment attack is answered by the Supreme Court’s ruling in Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967): “[A] mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside [the Fifth Amendment’s] protection.” As for Fourth Amendment rights, the Supreme Court has recently held that handwriting exemplars taken alone are outside the scope of the Fourth Amendment’s protection because a person has no reasonable expectation of privacy regarding his handwriting. United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), rev’g, 454 F.2d 580 (7th Cir. 1971). See also United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), rev’g in part, aff’g in part, 442 F.2d 276 (7th Cir. 1971). Moreover, there is no suggestion in the record that the exemplars were the fruit of an independently illegal seizure such as that in Davis v. Mississppi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). The appellant’s argument that it was error for the trial court to require that exemplars be in the form of allegedly forged words also has been answered by the Supreme Court and is without merit. In Dionisio, the defendant was ordered by the district court to give a" }, { "docid": "14322235", "title": "", "text": "exists... and consequently outside of the protection of the Fourth Amendment.” United States v. Nix, 465 F.2d 90, 93 (5th Cir.1972) (citations omitted); see also United States v. Mara, 410 U.S. 19, 21-22, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973) (recognizing that in addition to the Fifth Amendment, there also is no legitimate Fourth Amendment interest violated by the compulsory production of characteristics exposed to the public). . See, e.g., United States v. Knight, 607 F.2d 1172, 1177 (5th Cir.1979) (recognizing that \"[h]andwriting exemplars fall outside the protection of the Fourth [and Fifth] Amendment[s] and comment on the refusal to provide an exemplar is permissible”) (citations omitted). .See, e.g., United States v. Blakney, 581 F.2d 1389, 1390 (10th Cir.1978) (stating that \"if the exemplars would provide probative and relevant evidence in the case there would seem no merit in the claim of prejudice when questions were asked which brought out the refusal to provide them”); United States v. Franks, 511 F.2d 25, 36 (6th Cir.1975) (recognizing that \"[e]vidence that [defendant] refused to comply with the court order [to provide a voice exemplar]... is admissible”) (citations omitted). . Only one circuit has held that a comment by the prosecutor on a defendant's failure to produce a requested handwriting exemplar constituted a violation of the Fifth Amendment. Specifically, in United States v. White, 355 F.2d 909, 912 (7th Cir.1966), the Seventh Circuit stated that \"evidence introduced by the Government.. .with respect to [defendant’s] failure to cooperate, by giving handwriting specimens.. .was not admissible... [and] constituted an attempt to obtain an inference of guilt from his refusal to cooperate, 'in violation of the spirit, if not the letter, of the Fifth Amendment' ”. Yet, significantly, the Seventh Circuit's decision in White was rendered one year prior to the Supreme Court’s express holding in Gilbert that a handwriting exemplar does not amount to testimonial evidence falling within the Fifth Amendment’s protection. . Similarly, in Nix — a case supporting Lentz’s \"authorship” argument rather than the government’s \"consciousness of guilt” argument — the defendant was charged with signing a false name to a form in" }, { "docid": "14322226", "title": "", "text": "Oral argument is dispensed with as the facts and legal contentions are adequately set forth in the existing record and oral argument would not aid the decisional process. III. The starting point in the analysis is the Fifth Amendment to the United States Constitution. In this regard, it is axiomatic that the Fifth Amendment prohibits a prosecutor from commenting on a defendant’s failure to testify or to present testimonial evidence in the course of a criminal trial. See Howard v. Moore, 131 F.3d 399, 421 (4th Cir.1997) (recognizing that the “Fifth Amendment forbids comment by the prosecution on a defendant’s failure to testify”) (citing Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965)). Yet, the Supreme Court has made clear that “[a] mere handwriting exemplar.. .is an identifying physical characteristic outside [the Fifth Amendment’s] protection.” Gilbert v. California, 388 U.S. 263, 266-67, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). This is so because “[t]he handwriting itself (as opposed to the content of a written statement) is physical, not testimonial evidence.” United States v. McDougal, 137 F.3d 547, 559 (8th Cir.1998) (citing Gilbert, 388 U.S. at 266-67, 87 S.Ct. 1951). Thus, it is settled that a defendant in a criminal case may be compelled to furnish a handwriting exemplar and it is also settled that “introducing samples of the defendant’s handwriting at trial do[es] not violate the Fifth Amendment privilege against self-incrimination.” McDougal, 137 F.3d at 559. A prosecutor is likewise permitted to comment on, and indeed present evidence of, a defendant’s refusal to provide a handwriting exemplar if he was directed to do so, as involved here. Additionally, “[ejvidence that the defendant attempted to disguise his or her handwriting is also permissible, since otherwise the defendant could frustrate the government’s right to obtain a sample.” McDougal, 137 F.3d at 559 (citations omitted). In light of these settled principles, it is clear that the December 14, 2005 Order directing Lentz to provide handwriting exemplars to the government did not infringe his constitutional rights in any respect. And, it is equally clear that Lentz does not enjoy a" }, { "docid": "15262559", "title": "", "text": "risk of a possible indictment against her. In view of the relevance and materiality of the matter sought, the Government’s application is clearly made in good faith, is not part of a general fishing expedition and is not made to harass the movants herein. Mr. and Mrs. McKeon nonetheless contend that the requested exemplars will not be admissible at the trial and production of the same will require “testimony” from Mrs. McKeon in violation of her marital privilege. The Supreme Court, however, has indicated otherwise. In Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), that Court held: First. The taking of the exemplars did not violate petitioner’s Fifth Amendment privilege against self-incrimination. The privilege reaches only compulsion of “an accused’s communications, whatever form they might take, and the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one’s papers,” and not* “compulsion which makes a suspect or accused the source of ‘real or physical evidence’ * * Sehmerber v. State of California, 384 U.S. 757, 763-764, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908. One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the cover of the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. United States v. Wade, [388 U.S. 218] at 222-223, 87 S.Ct. [1926] at 1929-1930 [18 L.Ed.2d 1149]. 388 U.S. at 266-267, 87 S.Ct. at 1953. Thereafter in United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), in a case involving voice exemplars, the same Court noted: Wade and Gilbert definitively refute any contention that the compelled production of the voice exemplars in this case would violate the Fifth Amendment. The voice recordings were to be used solely to measure the physical properties of the witnesses’ voices, not for the testimonial or communicative content of what" }, { "docid": "16790213", "title": "", "text": "court denied the motion to suppress the handwriting exemplars. We agree that Hollins could have no valid objection to complying with the grand jury subpoena. A handwriting exemplar is neither a search nor seizure under the fourth amendment. United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). Nor is a handwriting exemplar testimonial evidence subject to the fifth amendment privilege against self incrimination. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). In fact, on page 3 of his affidavit which is attached to the motion to suppress Hollins states that he voluntarily complied with the grand jury subpoena. Accordingly, we find that the district court properly denied Hollins’ motion to suppress the handwriting exemplars. The district court also denied Hollins’ motion to suppress the photograph taken of him while in custody on the obstruction charge. The district court reasoned that, as with the handwriting exemplars, which were obtained by use of a grand jury subpoena, the photograph could have been obtained through means other than the arrest. (R. 35). We agree. As with the handwriting exemplars, the photograph could have been obtained by use of a grand jury subpoena without violating Hollins’ fifth amendment right against self incrimination. Schmerber v. California, 384 U.S. 757, 763-64, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966). Therefore, we find that the district court properly denied Hollins’ motion to suppress the photograph. The district court also denied on the merits Hollins’ motion to dismiss. Hollins argues that the almost four year delay between the end of the conspiracy and his indictment violated his fifth amendment right to due process of law. He claims actual and substantial prejudice to his defense due to the fact that Delphine Porter, a government witness, was a better witness against him than she would have been had he been brought to trial sooner. In 1980 Porter was a drug addict with a $200.00 a day heroin habit. During a 21 month period of incarceration at Lexington Prison Porter kicked her drug habit. The government responds that this factor does" }, { "docid": "15262563", "title": "", "text": "upheld, the “primary assumption” was that a summoned party must “give what testimony one is capable of giving” absent an exemption “grounded in a substantial individual interest which has been found, through centuries of experience, to outweigh the public interest in the search for truth.” Ibid. One application of this broad duty to provide relevant evidence has been the recognition, since early times, of an obligation to provide certain forms of nontes-timonial physical evidence.7 In Holt v. United States, 218 U.S. 245, 252-253, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910) (Holmes, J.), the Court found that the common-law evidentiary duty permitted the compulsion of various forms of physical evidence. In Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966), this Court observed that traditionally witnesses could be compelled, in both state and federal courts, to submit to “fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.” See also United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). In Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967), handwriting was held, “like the . .. body itself” to be an “identifying physical characteristic,” subject to production. In United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), and United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), this Court again confirmed that handwriting is in the nature of physical evidence which can be compelled by a grand jury in the exercise of its subpoena power. See also United States v. Mullaney, 32 F. 370 (CC Mo.1887). % ■%. sf: s{: % Nor is there any constitutional privilege of the taxpayer or other parties that is violated by this construction. Compulsion of handwriting exemplars is neither a search or seizure subject to Fourth Amendment protections, United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973), nor testimonial evidence protected by the Fifth" }, { "docid": "5609731", "title": "", "text": "245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910). It is well founded that handwriting exemplars are not protected by the Fifth Amendment privilege against self-incrimination. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Schmerber has made it clear that the obtaining of physical evidence from a person involves a potential Fourth Amendment violation at two different levels — the seizure of the person necessary to bring him in contact with government agents, and the subsequent search for and seizure of evidence. As to the seizure of the appellant, we have already found that a valid border search led to the arrest of the appellant. As to the possible violation of the Fourth Amendment at the second level —the subsequent search for and seizure of evidence — the Supreme Court has as recently as last year stated that no violation of the Fourth Amendment is found from compelling execution of handwriting or voice exemplars. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 93 S.Ct. 774, 35 L.Ed.2d 99 (1973). Dionisio relied on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), which held that the Fourth Amendment provides no protection for what “a person knowingly exposes to the public, even in his home or office.” The physical characteristics of a person’s voice or handwriting are constantly exposed to the public, hence no intrusion into a person’s privacy results from the compelled execution of a handwriting exemplar. We find no Fourth or Fifth Amendment violation to exist. IY. The appellant next contends that pursuant to Rule 16(f) of the Federal Rules of Criminal Procedure, the government’s motion to produce was not timely because not made within 10 days after arraignment. Rule 16(f) dealing with time for motions applies only to defendants. In the Matter of Magnus, Mabee & Reynard, Inc., 311 F.2d 12 (2nd Cir. 1962). V. Appellant contends also that the pretrial photographic identification procedure" }, { "docid": "6481742", "title": "", "text": "was done in United States v. Whitlow, 339 F.2d 975, 980 (7th Cir. 1964). Moreover, the Government did not lead him to believe that further evidence would be forthcoming on the question of interstate movement of the documents. Hence, Rogers has waived his hearsay objection. Diaz v. United States, 223 U.S. 442, 450, 32 S.Ct. 250, 252, 56 L.Ed. 500 (1912); Gibson v. Elgin, Joliet & Eastern Railway Co., 246 F.2d 834, 836 (7th Cir.) (relying upon Diaz), cert. den., 355 U.S. 897, 78 S.Ct. 270, 2 L.Ed.2d 193 (1957); American Rubber Products Corp. v. NLRB, 214 F.2d 47, 51-52 (7th Cir. 1954) (relying upon Diaz); United States v. Rosenberg, 195 F.2d 583, 596 (2d Cir.), cert. den., 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 652 (1952). II. Handwriting Exemplars After indictment, but before trial, the Government sought a court order requiring that defendant Rogers execute examples of his handwriting. The court so ordered, and Rogers agreed to give examples in any form except the names and addresses used on the forged documents. The Government then moved in open court, with supporting affidavits, that Rogers be compelled to execute exemplars in the form objected to by Rogers. The court so ordered and Rogers complied. Rogers then sought an order suppressing use of those exemplars at trial, which motion the court denied. Apparently Rogers did not renew his objection when the exemplars were used at trial, although he reasserts the claim on appeal. Defendant by his actions has not waived his right to raise on appeal his pretrial objection. Whitlow, supra. Rogers does not appear to argue that no exemplar constitutionally could be required of him, and it is clear that such argument could not succeed. No question of right to counsel is raised in this case, and a general Fifth Amendment attack is answered by the Supreme Court’s ruling in Gilbert v. California, 388 U.S. 263, 266-267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967): “[A] mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic" } ]