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[ { "docid": "903652", "title": "", "text": "the payments were made directly on behalf of the employer pursuant to a statutory scheme whose purpose it is to compensate at least to a degree the pecuniary loss as sustained by an employee from an injury received in the course of his work, we think it fair in the confusion of these ambiguous-amphibious controversies, Mike Hooks, Inc. v. Pena, 5 Cir., 313 F.2d 696, 697, 1963 A.M.C. 355, to require, not a repayment as such, but rather a credit against those items of damages ultimately allowed that bear a reasonable relation to the items of loss compensated by workmen’s compensation benefits. The items against which credit should be allowed would include (a) the ultimate award for maintenance and cure, (b) the pecuniary loss of wages during the period of payment of the compensation benefits, and (c) medical-hospital payments incurred up to the date of payment under the Compensation Act. No such credit is required as to the element of (d) pain and suffering— past, present, or future — or (e) loss of earnings or earning capacity subsequent to the date of payment of the last compensation benefit. The result is that between Shipowner and seaman, the case must go back for a trial on the issue of damages. On that issue, appropriate credits shall be allowed in accordance with this opinion. Affirmed as to third party defendant; reversed and remanded. . Williams-McWilliams, Inc. Although the barge was owned by Humble Oil & Refining Co., it was under bare-boat charter to Williams-McWilliams, Inc., who is therefore treated as Shipowner pro hac vice. See Stevens v. Seacoast Co., 5 Cir., 1969, 414 F.2d 1032. See generally G. Gilmore & C. Black, The Law of Admiralty 215-19 (1957). . Presumably on the basis of the Outer Continental Shelf Lands Act, 43 U.S.C.A. § 1333(c), making applicable the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq., the Shipowner-Employer made voluntary payments of $70 a week for approximately 50 weeks, totaling $3500. The Shipowner, as an anchor to windward, seeks to recover these on the ground that Massey, as a" } ]

[ { "docid": "22318045", "title": "", "text": "Justice Kennedy delivered the opinion of the Court. The Longshore and Harbor Workers’ Compensation Act (LHWCA or Act), 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq., creates a comprehensive federal scheme to compen sate workers injured or killed while employed upon the navigable waters of the United States. The Act allows injured workers, without forgoing compensation under the Act, to pursue claims against third parties for their injuries. But § 33(g) of the LHWCA, 33 U.S.C. § 933(g), provides that under certain circumstances if a third-party claim is settled without the written approval of the worker’s employer, all future benefits including medical benefits are forfeited. The question we must decide today is whether the forfeiture provision applies to a worker whose employer, at the time the worker settles with a third party, is neither paying compensation to the worker nor yet subject to an order to pay under the Act. I The injured worker in this case was Ployd Cowart, and his estate is now the petitioner. Cowart suffered an injury to his hand on July 20,1983, while working on an oil drilling platform owned by Transco Exploration Company (Transco). The platform was located on the Outer. Continental Shelf, an area subject to the Act. 43 U. S. C. § 1333(b). Cowart was an employee of the Nicklos Drilling Company (Nicklos), who along with its insurer Compass Insurance Co. (Compass) are respondents before us. Nicklos and Compass paid Cowart temporary disability payments for 10 months following his injury. At that point Cowart’s treating physician released him to return to work, though he found Cowart had a 40% permanent partial disability. App. 75. The Department of Labor notified Compass that Cowart was owed permanent disability payments in the total amount of $35,592.77, plus penalties and interest. This was an informal notice which did not constitute an award. No payments were made. Cowart, meanwhile, had filed an action against Transco alleging that Transeo’s negligence caused his injury. On July 1, 1985, Cowart settled the action for $45,000, of which he received $29,350.60 after attorney’s fees and expenses." }, { "docid": "21911011", "title": "", "text": "of the employment in which injured must have a significant relationship to traditional maritime activity. See, e.g., Weyerhaeuser v. Gilmore, 528 F.2d 957, 961 (9th Cir. 1975), cert. denied, 429 U.S. 868, 97 S.Ct. 179, 50 L.Ed.2d 148 (1976). Coverage of the Act on this basis was upheld by the panel majority in the present appeal and, under similar facts, by another panel of this court in Pippen v. Shell Oil Co., 661 F.2d 378 (5th Cir. 1981). (We stayed the issuance of the mandate in Pippen pending our present decision on en banc rehearing.) . Boudreaux’s accident occurred in Louisiana’s territorial waters. Had it occurred on the outer continental shelf, beyond state waters, then Boudreaux unquestionably would have been covered by the LHWCA pursuant to the Outer Continental Shelf Lands Act, 43 U.S.C. § 1333(b), which specifically extends LHWCA coverage to employees there injured in operations conducted for the purpose of exploring for, developing, removing or transporting the natural resources of the subsoil and seabed of the outer continental shelf. . Boudreaux was paid LHWCA compensation payments by the insurer of his employer, Aqua-tek. As amended in 1972, the Act permits an injured employee to bring suit for negligent injury against third-person vessel parties, section 905(b), 33 U.S.C. § 905(b), subject to employer’s right to be reimbursed from any damage recovery for benefits paid, id. section 933, 33 U.S.C. § 933. The employer’s insurer did, in fact, intervene herein to assert its claim for reimbursement. . See Miller v. Central Dispatch, Inc., 673 F.2d 773, 784 (5th Cir. 1982); Aparicio v. Swan Lake, 643 F.2d 1109 (5th Cir. 1981). . 33 U.S.C. § 903(a) provides: Compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel).... The remainder of the section provides that no LHWCA" }, { "docid": "22817135", "title": "", "text": "been on a vessel at the time of his injury. The only question, therefore, is whether Gray is limited to state workers’ compensation remedies or may also recover under the LHWCA. Gray did recover under the Louisiana workers’ compensation scheme, receiving weekly benefits totalling $3,172.50 over two years as well as $1,696.14 for medical expenses. These payments were credited against his later LHWCA recovery. See App. to Pet. for Cert. A-45. State workers’ compensation and the LHWCA are not mutually exclusive remedies. Sun Ship, Inc. v. Pennsylvania, 447 U. S. 715 (1980). The relevant section provides: “With respect to disability or death of an employee resulting from any injury occurring as the result of operations conducted on the Outer Continental Shelf for the purpose of exploring for, developing, removing or transporting by pipeline the natural resources, or involving rights to the natural resources, of the subsoil and seabed of the outer Continental Shelf, compensation shall be payable under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act.” 67 Stat. 463, as amended, 43 U. S. C. § 1333(b). Petitioners view Congress’ failure to extend LHWCA coverage to all offshore oil workers as an explicit rejection of the position adopted by the court below. However, it appears that the bill, S. 1547, was designed not so much to increase the benefits of those not covered, as to limit the remedies of those workers who could qualify as seamen and so were not confined to the workers’ compensation scheme. See 117 Cong. Rec. 10490-10491 (1971) (statement of Sen. Tower); Hearings, at 396-403, 418-419, 602. The bill was opposed because it would limit recoveries by those who did better without LHWCA coverage. Id., at 589-590, 602. See generally Boudreaux v. American Workover, Inc., 680 F. 2d 1034, 1053 (CA5 1982). The dissent finds “substantial irony” in this analogy in light of the 1972 LHWCA Amendments, which extended coverage landward to piers. Post, at 433-434. The irony dissipates in light of the fact that while Rodrigue did observe that offshore platforms are like piers, its holding was that they are islands. 395 U." }, { "docid": "12278426", "title": "", "text": "could not be paid” timely. Similarly, however, the Act gives the employer the absolute, unfettered right to timely controvert the entitlement to compensation, in which event no compensation is owing, under the express terms of section 14(a), and no penalty is owing, under the express terms of section 14(e), unless and until an award is made by the deputy commissioner. In that event, compensation is due within ten days of the award, and failure to timely pay the award, unless it is stayed pursuant to an appeal, results in the twenty percent penalty of section 14(f). We have held that this penalty “does not admit to an exception for late payment for equitable reasons.” Lauzon v. Strachan Shipping Co., 782 F.2d 1217, 1222 (5th Cir.1985). Moreover, where a plaintiff secures payment of compensation by an award, attorneys’ fees and certain expenses may also be adjudged in his favor. 33 U.S.C. § 928. In 1984, Congress enacted further amendments to the LHWCA, including a new provision making it a criminal offense for an employer, its agent, or an employee of an insurance carrier, to knowingly and willfully make a false statement or misrepresentation for the purpose of reducing, denying, or terminating compensation benefits. 33 U.S.C. § 931(c). The legislation which became the 1984 amendments to the LHWCA was the product of several years of congressional consideration. During this period of time, organized labor took the position that employers all too often arbitrarily refused to pay compensation resulting in “cases of members virtually having been forced to accept settlements far below their proper entitlements” under the LHWCA, as “the injured worker in need of immediate care and income protection is in a far more vulnerable position than his employer or longshore insurance carrier.” See generally, Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1981: Hearings on S. 1182 Before the Subcommittee on Labor of the Senate Committee on Labor and Human Resources, 97th Cong., 1st Sess. 433, 516-23, 545 (1981). Congress, however, did not enact any legislation to modify the employer’s absolute, unfettered right under the LHWCA to controvert compensation claims, nor" }, { "docid": "23473720", "title": "", "text": "(quoting Potomac Elec. Power Co. v. Director, Office of Workers’ Comp. Programs, 449 U.S. 268, 281-82, 101 S.Ct. 509, 516, 66 L.Ed.2d 446 (1980)), cert. denied, 494 U.S. 1082, 110 S.Ct. 1813, 108 L.Ed.2d 944 (1990). This immediate recovery is translated through § 914, which provides for prompt payment, unless the right to compensation is timely controverted by the employer, § 914(d). “Thus, the scheme of the LHWCA is that the employer is absolutely required to pay compensation promptly on notice of injury and in the absence of a timely written controversion.” Atkinson v. Gates, McDonald & Co., 838 F.2d 808, 810 (5th Cir.1988). The LHWCA provides for penalties of 10% for, among other things, failure to make timely advance (without an award) payments, unless a notice to controvert is timely filed, § 914(e), and 20% if an award is not timely paid, unless review is sought and payment of the award is stayed, § 914(f). Here, rather than timely controvert, Ceres Gulf made advance payments to Cooper for approximately 18 months, until shortly before he reached maximum medical improvement. As noted, the AU and BRB held that the LHWCA, § 914(j), provides for reimbursement of those payments only if unpaid installments of LHWCA compensation remain owing. Section 914(j) states that “[i]f the employer has made advance payments of compensation, he shall be entitled to be reimbursed out of any unpaid installment or installments of compensation due.” The only other two sections of the LHWCA which provide for recovery of overpayments are § 922, which provides for such recovery after a final award is modified, but only out of unpaid LHWCA compensation, and § 908(j), which provides for an employer’s recovery of compensation, but again only out of compensation payable, for periods during which a disabled employee fails to report, omits, or understates, employment-related earnings. None of the three sections provides for the employer recovering over-payments directly from the employee, as sought here; such recovery, under the LHWCA, can only be an offset against future LHWCA compensation. Ceres Gulf contends that Cooper’s claim that resulted in the advance payments was" }, { "docid": "8961771", "title": "", "text": "the substantive fault issues; the comments did not denigrate the significance of the report as impeachment evidence. Conclusion We affirm the district court’s ruling that there was insufficient evidence to present a jury question on the issue of Lyons’ seaman status. We hold that Kerr-McGee had no duty to require Ma-Ju to correct alleged defects in the C.C. RIDER’s deck, and that as a matter of law Kerr-McGee is not liable under section 5(b). We further hold that neither the district court’s evidentiary rulings nor its comments on the evidence present grounds for reversal. Accordingly, we affirm judgment in favor of Ma-Ju; and we reverse the judgment in favor of Lyons and against Kerr-McGee, and remand for entry of judgment in favor of Kerr-McGee. AFFIRMED in part; REVERSED in part and REMANDED. . As Lyons' injuries occurred as a result of operations conducted on the outer continental shelf within the meaning of 43 U.S.C. § 1333(b), the Outer Continental Shelf Lands Act (OCSLA), she is by virtue thereof entitled to LHWCA compensation and is treated as a covered employee (and Kerr-McGee as an employer) under the LHWCA. See Longmire v. Sea Drilling Corp., 610 F.2d 1342 (5th Cir.1980). . Jurisdiction was based on diversity, the Jones Act, and admiralty. The cases were consolidated. They were handled on the law rather than the admiralty side of the docket. No party complains of this. Kerr-McGee does not complain on appeal of the district court’s denial of its claims against Ma-Ju and its insurers. . We decide the seaman status issue within the same analytical framework that the district court decided it and Kerr-McGee and Lyons have presented it here and below, and without any special reference to Lyons being an LHWCA-covered employee. We recognize that we have held that those longshoremen and harbor workers, including ship repairers, shipbuilders, and ship breakers, directly covered by the LHWCA are for that reason ineligible for consideration as seamen or members of the crew of a vessel entitled to claim Jones Act benefits respecting the same thus covered employment. Pizzitolo v. Electro-Coal Transfer Corp., 812 F.2d" }, { "docid": "7582039", "title": "", "text": "analyses, we hold that the district court did not err in holding that the reciprocal indemnity agreement between Baker and Tidewater obligates Baker to indemnify Tidewater fully for Seth’s injuries. A. First, Baker appeals the district court’s ruling that the reciprocal indemnity agreement entered into by Baker and Tidewater was valid under § 905 of the LHWCA. 33 U.S.C. § 905(b). Section 905(b) of the LHWCA provides that agreements for an employer to indemnify a vessel from injuries to a longshoreman are void. Id. However, reciprocal-indemnity agreements between employer and vessel are not void when a longshoreman is entitled to LHWCA relief by virtue of the Outer Continental Shelf Lands Act (“OCS-LA”). 43 U.S.C. § 1333(b); 33 U.S.C. § 905(c). The question is whether Seth, who was a longshoreman at the time of the incident, is covered by § 1333(b) of OCS-LA Baker argues that Seth is not covered because he does not satisfy the “situs” test and is thus not covered under § 1333(b). We find this argument unavailing. “Section 1333(b) of OCSLA extends the LHWCA’s benefits to employees disabled or killed ‘as the result of operations conducted on the outer Continental Shelf for the purposes of exploring for ... [or] developing ... the natural resources ... of the subsoil and seabed of the outer Continental Shelf.’ ” Mills v. Director, 877 F.2d 356, 357-58 (5th Cir.1989) (en banc) (quoting 43 U.S.C. § 1333(b)). Under this subsection, with two exceptions, all employees suffering injury or death on the outer continental shelf are covered by the LHWCA if they are engaged in exploring for or developing natural resources. The only exceptions, not applicable here, are for masters or members of a crew of a vessel or employees of the United States. 43 U.S.C. § 1333(b)(1). The only status requirement is that the worker be engaged in exploration or production of minerals, and the only situs requirement is that the worker be injured on the outer continental shelf. See Mills, 877 F.2d at 362. Because Seth was engaged in mineral exploration, was a non-seaman, and was injured on the outer continental" }, { "docid": "23473719", "title": "", "text": "court held that it had “jurisdiction because this is a federal question, arising directly under a federal statutory compensation plan. 28 U.S.C. § 1331; [LHWCA,] 33 U.S.C. § 921(d).” 756 F.Supp. at 304. (As discussed infra, § 921(d) allows claimants and deputy commissioners, but not employers, to obtain district court enforcement of a compensation order making an award.) In this case, subject matter jurisdiction can be viewed only against the backdrop of the LHWCA statutory scheme. The employer’s liability under the LHWCA is “exclusive and in place of all other liability of such employer to the employee....” 33 U.S.C. § 905(a). As with other worker’s compensation schemes, “the LHWCA ... represents a compromise between the interests of injured workers, who receive a certain and immediate recovery, and the interests of employers and insurers, who in turn receive ‘definite and lower limits on potential liability than would have been applicable in common-law tort actions for damages.’ ” In re Claim for Compensation Under the Longshore & Harbor Workers Compensation Act, 889 F.2d 626, 632 (5th Cir.1989) (quoting Potomac Elec. Power Co. v. Director, Office of Workers’ Comp. Programs, 449 U.S. 268, 281-82, 101 S.Ct. 509, 516, 66 L.Ed.2d 446 (1980)), cert. denied, 494 U.S. 1082, 110 S.Ct. 1813, 108 L.Ed.2d 944 (1990). This immediate recovery is translated through § 914, which provides for prompt payment, unless the right to compensation is timely controverted by the employer, § 914(d). “Thus, the scheme of the LHWCA is that the employer is absolutely required to pay compensation promptly on notice of injury and in the absence of a timely written controversion.” Atkinson v. Gates, McDonald & Co., 838 F.2d 808, 810 (5th Cir.1988). The LHWCA provides for penalties of 10% for, among other things, failure to make timely advance (without an award) payments, unless a notice to controvert is timely filed, § 914(e), and 20% if an award is not timely paid, unless review is sought and payment of the award is stayed, § 914(f). Here, rather than timely controvert, Ceres Gulf made advance payments to Cooper for approximately 18 months, until shortly before" }, { "docid": "17823867", "title": "", "text": "“true” wages and that the remaining $80,107.50 constituted workers’ compensation benefits, for the following reasons. The LHWCA provides an injured plaintiff with an immediate and readily available compensation payment from his employer while not precluding any action the plaintiff may have against any third-party tortfeasor. McLeod v. ERA Aviation, Inc., 1996 WL 80086, *2 (E.D.La. 1996) citing Bloomer v. Liberty Mut. Ins. Co., 445 U.S. 74, 100 S.Ct. 925, 932, 63 L.Ed.2d 215 (1980). However, an employee is not entitled to double recovery under the LHWCA. Id. To this end, the LHWCA allows for an employee to elect either to receive compensation or to recover damages against a third person. 33 U.S.C. § 933(a). By bringing this suit, Baham has chosen to recover damages which may be payable because of the fault of Nabors. Seatrax argues that the payments made to Baham were advance compensation payments in the form of wages in lieu of compensation. With the exception of a portion of the sums noted below, the Court agrees. An employer need not label the payments made to an employee as advance compensation in order to receive a credit for such payments. Id. citing McCabe Inspection Service v. Willard, 240 F.2d 942, 943 (2nd Cir.1957). The Fifth Circuit has held that the key in determining whether payments made to an employee are characterized as “true” wages or wages in lieu of compensation is the intent of the employer. Shell Offshore, Inc. v. Director, Office of Workers’ Compensation Programs, U.S. Dept. of Labor, 122 F.3d 312, 317-318 (5th Cir.1997). While the above caselaw does not deal specifically with the right of an employer to recover such payments from a third party, the Court finds that the same principle should apply to an employer as applies to an insurer who makes compensation payments. If an insurer is entitled to a future credit on amounts due an injured employee, the employer is entitled to recover these amounts from a third party tortfeasor. The evidence established that the majority of the disputed payments made to Ba-ham by Seatrax were wages in lieu of compensation." }, { "docid": "23052596", "title": "", "text": "LHWCA: “compensation shall be payable under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act.” 43 U.S.C.A. § 1333(b) (West Supp.1979). Furthermore, as we have previously noted, Congress intended that persons protected by the OCSLA were to be entitled to the full panoply of remedial provisions available to longshoremen. Because we are convinced that the OCSLA is a general reference statute, we conclude that it incorporates the 1972 Amendments to the LHWCA. Accordingly, we hold that Long-mire may pursue a § 905(b) action against Sea Drilling. The contrary result would only inject a further anomaly into an area of law already fraught with “fine and often intuitively questionable distinctions.” For example, were we to accept Sea Drilling’s argument that § 905(b) does not apply to workers like Longmire who trace their rights under the LHWCA through the OCSLA, we would preserve on the Outer Continental Shelf precisely the problem Congress sought to eliminate in the 1972 amendments. In Ber trand v. Forest Corp., 441 F.2d 809 (5th Cir.), cert. denied, 404 U.S. 863, 92 S.Ct. 106, 30 L.Ed.2d 107 (1971), we noted that an injured Outer Continental Shelf worker “remains free to sue non employer third parties for damages.” 441 F.2d at 811 n.2 (citing Sieracki and Watson v. Gulf Stevedore Corp., 374 F.2d 946 (5th Cir.), cert. denied, 389 U.S. 927, 88 S.Ct. 286, 19 L.Ed.2d 277 (1967)). Applying Reed v. The Yaka and Jackson v. Lykes, 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488 (1967), such an employee would presumably also be free to bring that action against an employing shipowner. The action would necessarily be predicated on the theory of unseaworthiness. If Longmire is not entitled to the benefits of the negligence action provided in § 905(b), then he is also not subject to the abolition of the unseaworthiness remedy contained in that section. We think that fidelity to congressional purpose requires the result we reach in this case. With respect to all workers entitled to compensation according to the provisions of the LHWCA, Congress intended to eliminate the unseaworthiness remedy against a vessel and" }, { "docid": "878540", "title": "", "text": "motion was sustained is the statutory immunity of Aquatek, the employer, from any liability to its “maritime employee” within the coverage of the LHWCA, other than the exclusive remedy provided by that Act. 33 U.S.C. § 905. Thus, if Boudreaux at the time of the injury was a “maritime” employee provided a remedy by the LHWCA, then his employer Aquatek cannot be held liable to the defendant AWI to indemnify it for, or to contribute to the payment of, any damages awarded to Boudreaux against AWI for injuries sustained in the course of his “maritime” employment. The district court so held, in granting the employer’s insurer summary judgment dismissing AWI’s third-party demand against it. By virtue of a Rule 54(b) order determining there was no just reason for delay and directing entry of judgment, the dismissal is an appealable judgment. . If a member of a similar wireline crew was injured while performing his duties on a movable barge offshore on the Outer Continental Shelf, he would be entitled to LHWCA benefits. See Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331-1356, esp. § 1333, which so provides as to employees there injured in operations conducted for the purpose of exploring for, developing, removing or transporting the natural resources of the subsoil and seabed of the Outer Continental Shelf. . On two occasions the Supreme Court has indicated that the “language of the 1972 Amendments is broad and suggests that we should take an expansive view of the extended coverage,” National Northeast Marine Terminal Co. v. Caputo, supra, 432 U.S. at 268, 97 S.Ct. at 2359, and that the decision (to focus on the nature, not location of employment) “also1 serves the broader congressional purpose of expanding coverage. Congress intended to apply a simple, uniform standard of coverage.” Pfeiffer v. Ford, supra, 444 U.S. at 83-84, 100 S.Ct. at 338. . Fusco v. Perini North River Associates, 601 F.2d 659 (2d Cir. 1979), vacated and remanded, 444 U.S. 1028, 100 S.Ct. 697, 62 L.Ed.2d 664 (1980), rev’d on remand, 622 F.2d 1111 (2d Cir. 1980), cert. denied, 449 U.S. 1131," }, { "docid": "4017078", "title": "", "text": "LHWCA. Specifically, it would detract from the objective of promoting the prompt payment of compensation, and it could discourage employees from seeking the full extent of their statutory benefits. The LHWCA is a no-fault workers compensation scheme that provides “employees with the benefit of a more certain recovery for work-related harms” while providing “employers with definite and lower limits on potential liability than would have been applicable in common-law tort actions for damages.” Potomac Elec. Power Co. v. Director, O.W.C.P., 449 U.S. 268, 281, 101 S.Ct. 509, 66 L.Ed.2d 446 (1980). The LHWCA is thus designed to accommodate “employees’ interest in receiving a prompt and certain recovery for their industrial injuries as well as ... the employers’ interest in having their contingent liabilities identified as precisely and as early as possible.” Id. at 282, 101 S.Ct. 509. Within this framework, § 14(f) serves two distinct purposes. First, it “encourage[s] employers to provide prompt payment of compensation to injured workers.” Garvey Grain Co. v. Director, O.W.C.P., 639 F.2d 366, 372 (7th Cir.1981). Second, when an employer violates the Act’s provisions requiring prompt payment, § 14(f) serves to “compensate claimants for their inconvenience and expense during the time when they did not receive timely compensation.” Ingalls Shipbuilding, 119 F.3d at 978. See also Watkins v. Newport News Shipbuilding & Dry Dock Co., 8 B.R.B.S. 556, 560 (1978) (section 14 payments “do not exist merely to give employers a financial incentive to pay compensation voluntarily and promptly. They are, in fact, additional amounts paid to the claimant to compensate for the inconvenience and expenses of supporting herself during the time when her earning capacity was reduced or destroyed and compensation was not being paid.”), vacated and remanded on other grounds sub nom., Newport News Shipbuilding & Dry Dock Co. v. Director, O.W.C.P., 594 F.2d 986 (4th Cir.1979). Section 14(f)’s award for late payment is thus an integral part of the compensation package that the LHWCA provides for injured employees. As a result, if a claimant is forced to pay legal fees out of her own pocket to obtain a § 14(f) award, her" }, { "docid": "4017077", "title": "", "text": "sum, Congress created a simple system for categorizing payments made by employers under the LHWCA: payments going directly to an employee are compensation, see 33 U.S.C. § 902(12), while payments going to the LHWCA special fund are penalties or fines, see id. § 944(c)(3). When the LHWCA’s broad definition of compensation is read with the language of § 14(f), and the Act’s structural differentiation between compensation and penalties is taken into account, it is reasonably clear that a § 14(f) late payment award to an employee is compensation. If, however, we assume for the sake of argument that the Act is ambiguous on this point, and we investigate further, we still conclude that a § 14(f) payment is compensation. Section 914(f) awards should be designated as compensation because this interpretation is “most harmonious” with the LHWCA’s scheme and purpose. See Engle, 464 U.S. at 217, 104 S.Ct. 597. A conclusion that § 14 awards are not compensation, which would foreclose attorney’s fees for their collection, would be inconsistent with the purpose and objectives of the LHWCA. Specifically, it would detract from the objective of promoting the prompt payment of compensation, and it could discourage employees from seeking the full extent of their statutory benefits. The LHWCA is a no-fault workers compensation scheme that provides “employees with the benefit of a more certain recovery for work-related harms” while providing “employers with definite and lower limits on potential liability than would have been applicable in common-law tort actions for damages.” Potomac Elec. Power Co. v. Director, O.W.C.P., 449 U.S. 268, 281, 101 S.Ct. 509, 66 L.Ed.2d 446 (1980). The LHWCA is thus designed to accommodate “employees’ interest in receiving a prompt and certain recovery for their industrial injuries as well as ... the employers’ interest in having their contingent liabilities identified as precisely and as early as possible.” Id. at 282, 101 S.Ct. 509. Within this framework, § 14(f) serves two distinct purposes. First, it “encourage[s] employers to provide prompt payment of compensation to injured workers.” Garvey Grain Co. v. Director, O.W.C.P., 639 F.2d 366, 372 (7th Cir.1981). Second, when an employer" }, { "docid": "12088609", "title": "", "text": "W. EUGENE DAVIS, Circuit Judge: We granted rehearing en banc to determine whether appellant, O’Neal Mills, a land-based welder injured while building an offshore oil platform in Amelia, Louisiana, qualifies for benefits under the Longshore & Harbor Workers’ Compensation Act (LHWCA) as incorporated in the Outer Continental Shelf Lands Act (OCSLA). Because we conclude that OCSLA’s provision adopting LHWCA includes a situs of injury requirement that Mills did not satisfy, we affirm the order of the Benefits Review Board (BRB) rejecting Mills’ claim. I. McDermott, Inc., employed Mills as a welder in February 1982 when he suffered an injury during construction of an oil production platform destined for the outer Continental Shelf. The injury occurred in McDermott’s yard in Amelia, Louisiana, where Mills had been working on the platform for at least six months before the accident. Mills performed all of his welding work for McDermott on land. The deputy commissioner of the Office of Workers’ Compensation Programs initially approved Mills’ application for LHWCA benefits under OCSLA, 43 U.S.C. § 1333(b). An administrative law judge reversed the deputy commissioner’s decision. The Benefits Review Board for the U.S. Department of Labor affirmed the AU’s denial of benefits, and Mills appealed to this court. In Mills v. Director, OWCP, 846 F.2d 1013 (5th Cir.1988), a panel of this court reversed the BRB and remanded. The court granted McDermott’s petition for rehearing en banc on September 9,1988. We now affirm the BRB’s order and hold that Mills does not qualify for benefits under OCSLA because he does not satisfy its situs-of-injury requirement. II. Section 1333(b) of OCSLA extends the LHWCA’s benefits to employees disabled or killed “as the result of operations conducted on the outer Continental Shelf for the purposes of exploring for ... [or] developing ... the natural resources ... of the subsoil and seabed of the outer Continental Shelf.” As incorporated in OCSLA, § 933(i) of the LHWCA provides the exclusive remedy of an injured employee against his employer. See 33 U.S.C. § 933(i); Barger v. Petroleum Helicopters, Inc., 692 F.2d 337, 339 (5th Cir.1982). McDermott argues that Mills falls outside" }, { "docid": "11279602", "title": "", "text": "an employer in loading, unloading, repairing, dismantling, or building a vessel).\" 33 U.S.C. § 903(a). The Fifth Circuit, in Winchester, found that a worker employed as a \"gear man\" with duties rather similar to Wallace’s fell within the status test. 632 F.2d at 516. The situs prong has been the source of considerable amounts of litigation in situations in which the employee is injured on land away from the shoreline, but within the scope of his maritime employment. It is difficult to ascertain whether Wallace’s reinjury giving rise to his retaliatory discharge claim occurred inland while refueling his superintendent's truck or on the dock when he returned. In Winchester, however, the Fifth Circuit found that the plaintiff, who was injured at a gear room five blocks from the waterfront, met the situs test. This liberal view of the situs prong comports with policy against workers walking in and out of coverage. Id. In any event, no one here challenges Wallace’s LHWCA coverage. . The Delaware River is a navigable water of the United States. Id. 100 S.Ct. at 2434. . Workers who initially claim benefits under state law will generally be able to receive additional benefits under the LHWCA. 100 S.Ct. at 2438. To avoid double recovery, a worker who receives state benefits, then pursues federal benefits, may be required to credit the state benefits against the federal and vice versa. Landry v. Carlson Mooring Serv., 643 F.2d 1080, 1088 (5th Cir.1981), cert. denied, 454 U.S. 1123, 102 S.Ct. 970, 71 L.Ed.2d 109; Johnson v. Texas Employers Ins. Ass'n, 558 S.W.2d 47, 52 (Tex.Civ.App.— Beaumont 1977, writ ref'd n.r.e.). . OCSLA allows adjacent states to apply their laws to activities on the outer Continental Shelf \"[t]o the extent that they are applicable and not inconsistent with this Act or with other Federal laws and regulations____” 43 U.S.C. § 1333(a)(2)(A). The Fifth Circuit made clear, however, that OCSLA commits Shelf-related injuries to the exclusive jurisdiction of the LHWCA. Id. at 509-10. 43 U.S.C. § 1333(b), adopting the LHWCA as the exclusive remedy, does not specifically refer to retaliatory discharge claims. The" }, { "docid": "11279603", "title": "", "text": "100 S.Ct. at 2434. . Workers who initially claim benefits under state law will generally be able to receive additional benefits under the LHWCA. 100 S.Ct. at 2438. To avoid double recovery, a worker who receives state benefits, then pursues federal benefits, may be required to credit the state benefits against the federal and vice versa. Landry v. Carlson Mooring Serv., 643 F.2d 1080, 1088 (5th Cir.1981), cert. denied, 454 U.S. 1123, 102 S.Ct. 970, 71 L.Ed.2d 109; Johnson v. Texas Employers Ins. Ass'n, 558 S.W.2d 47, 52 (Tex.Civ.App.— Beaumont 1977, writ ref'd n.r.e.). . OCSLA allows adjacent states to apply their laws to activities on the outer Continental Shelf \"[t]o the extent that they are applicable and not inconsistent with this Act or with other Federal laws and regulations____” 43 U.S.C. § 1333(a)(2)(A). The Fifth Circuit made clear, however, that OCSLA commits Shelf-related injuries to the exclusive jurisdiction of the LHWCA. Id. at 509-10. 43 U.S.C. § 1333(b), adopting the LHWCA as the exclusive remedy, does not specifically refer to retaliatory discharge claims. The Fifth Circuit, however, treated the claim the same as a claim resulting from death or disability. This treatment buttresses this Court’s earlier determination that retaliatory discharge claims brought pursuant to state statute arise out of state workmen’s compensation laws for purposes of 28 U.S.C. § 1445(c). . See also Gates v. Shell Oil, 812 F.2d 1509, 1514 (5th Cir.1987) (since OCSLA adopts LHWCA, \"statutory employer\" defense under state law inoperative). . Section 1257(1) — (2) provides as follows: Final judgments or decrees rendered by the highest Court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows: (1) By appeal, where is drawn in question the validity of a treaty or statute of the United States and the decision is against its validity. (2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor if its validity. 28" }, { "docid": "23576873", "title": "", "text": "paid to Peters, they were entitled to automatic reimbursement in full without having to prove Speeflo’s liability for Peters’ injuries. Accordingly, Intervenors simply presented evidence of the amount of compensation benefits that they had paid on account of Peters’ injuries and prayed for judgment in that amount against either Peters or Spee-flo. The district court, on the other hand, persisted in the view that, because Peters and Speeflo expressly excluded the intervention from the scope of the settlement, Intervenors could not recover unless they established Speeflo’s liability for Peters’ injuries. Accordingly, the district court dismissed the intervention, and this appeal followed. The only issue on appeal is whether a worker and a third-party tort-feasor may settle their dispute independently of the employer’s compensation lien. II. OVERVIEW OF THE LHWCA A brief overview of the Act’s compensation scheme will place in context the dis- trict court’s decision and the parties’ positions. The LHWCA allocates the costs of industrial accidents through a compromise between the rights of employees and employers that is typical of many workers’ compensation schemes: an injured worker is entitled to “prompt and certain” compensation benefits from his employer even if the employer is not to blame for the accident, see Louviere v. Shell Oil Co., 509 F.2d 278, 283 (5th Cir.1975), cert. denied, 423 U.S. 1078, 96 S.Ct. 867, 47 L.Ed.2d 90 (1976); the benefits, however, are generally less than the worker could recover under traditional tort compensation systems and constitute the employer’s exclusive liability for the worker’s injuries, see 33 U.S.C. § 905(a). To accomplish its “manifest purpose ... to assure prompt aid to the employee when his need is greatest,” Louviere, 509 F.2d at 283, the Act encourages the voluntary payment of benefits, see 33 U.S.C.A. § 914(a), (d), but also provides an administrative procedure for resolving disputed cases, see id. § 914(d); 20 C.F.R. pt. 702 (1984). We have recognized that the compensation scheme of the Act furthers at least two other objectives, both of which are particularly relevant to the issue in this case; (1) “placing the burden ultimately on the company whose default" }, { "docid": "10827041", "title": "", "text": "because it directly contravenes § 905(b) of the LHWCA. Second, A&B maintains that state law governs the Master Service Contract and invalidates the indemnity provisions at issue. 1. A&B argues that § 905(b) of the LHWCA rendered the indemnity clause of the Master Service Contract invalid. The district court rejected this argument, determining that the indemnity provision was saved by § 905(c) of the LHWCA. Diamond Offshore Co. v. A&B Builders, Inc., 75 F.Supp.2d 676, 681-84 (5th Cir.1999). Section 905(b) prohibits indemnification by the employer of a covered employee for a claim due to bodily injury brought by the employee against the vessel (including its owner). 33 U.S.C. § 905(b). However, if the injured employee is entitled to receive the benefits of the LHWCA “by virtue of’ § 1333(b) of the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1331 et seq., then § 905(e) provides an exception, allowing “any reciprocal indemnity provision whereby the employer ... and the vessel agree to defend and indemnify the other for the cost of defense and loss or liability for damages arising out of or re-suiting from death or bodily injury to their employees.” 33 U.S.C. § 905(c). A&B puts forth two primary grounds in support of its contention that the district court erred in finding that the § 905(c) exception applied to this case. First, A&B argues that there is no summary judgment evidence that McMillon qualified for LHWCA workers’ compensation benefits under § 1333(b) of the OCS-LA. Second, A&B contends that the indemnity provision is not “reciprocal.” We address both of these grounds in turn. A&B contends that the district court erred in concluding that McMillon qualified for LHWCA workers’ compensation benefits under § 1333(b) because there is no summary judgment evidence that OSCLA’s situs and status requirements are met. In order to recover LHWCA benefits by virtue of § 1333(b), notwithstanding any application of the LHWCA of its own force, the injured worker must satisfy “status” requirement of § 1333(b) and the “situs” requirement of § 1333(a)(1). Demette v. Falcon Drilling Co., Inc., 280 F.3d 492, 498 (5th Cir.2002);" }, { "docid": "23473707", "title": "", "text": "BARKSDALE, Circuit Judge: Primarily at issue is subject matter jurisdiction vel non for an original action in district court against a former employee to recover advance payments made under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (LHWCA), when additional LHWCA compensation is not owed the employee and the relief sought is not permitted, either procedurally or substantively, by the Act. After being denied such recovery in LHWCA administrative proceedings, but without seeking review in a court of appeals as allowed by the Act, the employer and its compensation insurer filed this separate suit. Several months later, when a default judgment was being considered, the Director, Office of Workers’ Compensation Programs, fortuitously became aware of this action and immediately sought to intervene, based on his authority as administrator of the LHWCA. This notwithstanding, the district court entered the judgment and later denied intervention. The Director bases error, inter alia, on the denial and lack of subject matter jurisdiction. We agree and REVERSE and REMAND with instructions. I. Ceres Gulf is a stevedoring company subject to the LHWCA; ESIS/INA, its worker’s compensation insurer. Almost immediately after Ceres Gulf employed Cooper, he claimed that he had been injured in the course of that employment and sought compensation and medical benefits under the LHWCA. Ceres Gulf did not promptly controvert Cooper’s LHWCA claim; instead, over a period of almost 18 months, it made advance payments to him totalling approximately $36,000. Ceres Gulf did, however, contest the claim; and following a hearing, an Administrative Law Judge (AU) denied it, finding that a work injury had not occurred. Concomitantly, the AU denied Ceres Gulf’s request for reimbursement of the advance payments, ruling that “33 U.S.C. § 914(j) which is the only known authority for allowing reimbursement for overpayments applies only in cases where it is contemplated that additional [LHWCA] compensation will become due.” Cooper and Ceres Gulf appealed to the Department of Labor Benefits Review Board (BRB); and it affirmed, holding in part: The [LHWCA] ... provides for reimbursement of advance compensation payments only if unpaid installments of compensation remain" }, { "docid": "23507394", "title": "", "text": "liability under the Jones Act, I would still find it necessary to reject Judge Garwood’s proposal with respect to that claim. As the majority opinion explains, unless the FELA dictates otherwise, the Jones Act is construed in accord with the common law. Without the statutory impediment of section 53, therefore, the issue would shift from whether our role as an enforcer of congressional intent prevents us from modifying the principles of joint and several liability under the Jones Act to whether principles of stare decisis cut off the course Judge Garwood would have us take. That issue is resolved, I find, by a fair reading of the Supreme Court’s decision in Edmonds v. Compagnie Generate Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979). Edmonds was a longshoreman; he was injured while unloading cargo for a shipowner who had contracted with Edmonds’ employer, a stevedoring concern, for Ed-monds’ work. Because of the-injury, Ed-monds received benefits from his employer under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). He also sued the shipowner for negligence under 33 U.S.C. § 905(b), a provision of the LHWCA added by Congress in 1972 to specifically authorize such suits. At trial, the jury returned the following verdict: Total damages to Edmonds were $100,000; responsibility for those damages was divided between Edmonds (10%), the employer (70%), and the shipowner (20%). The district court implemented the verdict by reducing Edmonds’ recovery by his own negligence (10%). The court, could not, however, permit Edmonds to recover any of the judgment from the employer — the employer was not a party to the suit because the LHWCA specifically limited its liability. Therefore, despite the fact that the shipowner was only 20% responsible for Ed-monds’ injuries, the district court held the shipowner responsible for the remaining 90% of Edmonds’ damages. The shipowner appealed, finally reaching the United States Supreme Court. To the Court, the shipownér made two arguments: (1) that in the process of specifically authorizing negligence suits against shipowners through the LHWCA’s 1972 amendments, Congress limited a shipowner’s liability to only that proportion of plaintiff’s damages which" } ]

[ { "docid": "23635343", "title": "", "text": "price differential less weight than in other situations where the products appear to be less similar. Our inclination derives from the possibility that the reason for the price differential may be price-insensitive consumers. Cf. Columbia Metal Culvert Co., Inc. v. Kaiser Aluminum & Chemical Corp., 579 F.2d 20, 28 & n. 22 (3d Cir. 1978), cert. denied, 439 U.S. 876, 99 S.Ct. 214, 58 L.Ed.2d 190 (1978). However, since there is no conclusive evidence that consumers in this market are price insensitive, we must afford the price differential its due weight. Moreover, a closer analysis of the products show that although the end product of the drive-thru and the conventional method is nearly identical, the total service is quite different. The differences in the total service provided by drive-thru as compared to conventional retailing are reflected by industry perception of the drive-thru submarket as a separate economic entity, another Brown Shoe factor suggesting a relevant submarket. The district court found that “the drive-thru retail photographic processing business has achieved recognition within the photographic industry as a separate method of doing business and a separate market.” More important than industry perception is consumer perception. Expert testimony indicated that consumers do treat drive-thru as a separate submarket. The convenience and service of drive-thru kiosks apparently segregate them from other forms of retailing. Consumers are willing to pay a premium for the convenience of drive-thru service. And the Fotomate, with whom a customer deals, is more of a specialist than salespersons in many drug stores or discount stores that offer photo processing. Another Brown Shoe factor, “specialized vendors,” also supports the district court’s finding of a drive-thru submarket. It is quite clear that kiosks are a specialized method of retailing distinct from other conventional methods. Fotomat is disturbed by the district court’s finding of a drive-thru submarket in view of the fact that the district court found that a given customer might purchase photo processing from both drive-thru and conventional retailers depending on which is more convenient under the circumstances. Fotomat suggests that this precludes the existence of a submarket. We cannot agree." } ]

[ { "docid": "22952761", "title": "", "text": "Court subsequently withdrew it, Standard Oil Co. v. United States, 337 U. S. 293, only to reinstate it again today. This issue, which appeared settled at the time of the 1950 amendment, provoked an acrimonious exchange during the Senate hearings. Hearings before a Subcommittee of the Senate Committee on the Judiciary on H. R. 2734, 81st Cong., 1st & 2d Sess., pp. 160-168. The decline continued at approximately the same rate to 1963, the last year for which data are available, when there were 3,590 single-store grocery firms in the area. The record contains no breakdown of the figures on single-store concerns. In an extensive study of the retail grocery industry on a national scale, the Federal Trade Commission found that between 1939 and 1954 the total number of grocery stores in the United States declined by 109,000, or 28%. The entire decrease was suffered by stores with annual gross sales of less than $50,000. During the same period, the number of stores in all higher sales brackets increased. The Commission noted that the census figures, from which its data were taken, included an undetermined number of grocery firms liquidating after 1948 that merely closed their grocery operations and continued their remaining lines of business, such as nongrocery retailing, food wholesaling, food manufacturing, etc. Staff Report to. the Federal Trade Commission, Economic Inquiry Into Food Marketing, Part I, Concentration and Integration in Retailing 48, 54 (1960). The generalized case against the Court’s numerical approach is stated in Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv. L. Rev. 226, 312, n. 261: “[T]here are serious problems connected with the use of this yardstick. First, not every firm contributes equally to competition. In particular, there may be a fringe of firms too small to be able to affect price and production policies in the market as a whole. Alternatively, certain firms may be marginal in the sense that their costs and financial situations preclude them from having much, if any, impact on market conditions; indeed they may be able to remain in operation only" }, { "docid": "23449662", "title": "", "text": "In 1962 it added a variety of health and beauty aids under its PLUS mark, including skin creams, lotions and hair care products. In 1963 it introduced spices and cooking oil products, and in 1972 it added pet food supplements. All of the products sold under the PLUS mark are known for their high quality and high price. Initially Products sold its goods through mail order. However, in 1960 it changed its merchandising approach by selling directly to jobbers and health stores. Currently, the bulk of its sales is to such stores. In 1980 Products was acquired by Richardson-Vicks, Inc. (“RVI”), which established a new company policy of promoting distribution of the PLUS line into supermarket nutrition centers. Up until that time the PLUS line products were sold in nutrition centers in only three retail grocery chains, representing about forty stores. By the end of 1981, as a result of Products’ new marketing approach, its products were sold in over thirty-five chains with 923 centers. In large part RVI was recognizing and responding to the increased interest in nutrition and natural products recently developed in this country which has led a significant number of supermarkets to open up nutrition centers within their retail stores. The health food sections, particularly popular on the west coast, are actually self-contained mini-health stores, for the premium-priced products therein are segregated from the grocery’s more mundane items, thereby fostering the image of a high quality health food store within a retail supermarket. Products’ dispute with Foods is a natural byproduct of its expansion into conventional grocery stores. Naturally, Products was vigilant in attempting to restrict others from using the word “PLUS” even before its entrance into conventional grocery store sales. It is the proprietor of three organizations for the trademark PLUS and one registration for the trademark PLUS ONE-UP, and since 1970 it has forwarded cease and desist letters to companies relating to over 130 different uses of the word “PLUS,” and has filed numerous opposition proceedings in the Patent and Trademark Office. See, e.g., American Dietaids Co. v. Plus Products, 412 F.Supp. 691 (S.D.N.Y.)," }, { "docid": "12459330", "title": "", "text": "that are marketed together by a particular type of seller. See, e.g., Grinnell, 384 U.S. at 572-73, 86 S.Ct. 1698 (accredited central station services, including automatic burglar alarms, automatic fire alarms, sprinkler supervision services, and watch signal services, constitute proper relevant market); F.T.C. v. Staples, Inc., 970 F.Supp. 1066, 1075 (D.D.C.1997) (upholding product market consisting of all consumable office supplies sold through office superstores); F.T.C. v. Whole Foods, 548 F.3d 1028, 1040 (D.C.Cir.2008) (upholding product market consisting of sales at premium, natural, and organic supermarkets); Matter of Toys R Us, Inc., 126 F.T.C. 415, 593 (1998) (concluding that relevant product market is the retail sale of toys, including products as distinct as bikes, video games, and dolls). Here, plaintiffs have alleged that wholesalers’ ability to offer the full line of Pool Products with prompt delivery and credit is what makes them a distinct and desirable channel of distribution for both manufacturers and Pool Dealers. See infra. In the context pleaded here, the breadth of products involved does not make plaintiffs’ product market definition implausible. Pool Defendants also argue that by limiting the market definition to Pool Products sold by distributors, plaintiffs have alleged a product market that is too narrow. They argue that Pool faces competition for Pool Product sales, not only from other distributors, “but also from mass-market retailers (e.g. Wal-Mart, Home Depot and Lowe’s),” large pool supply retailers with internal distribution networks, buying groups, grocery stores, hardware stores, and online retailers. Defendants’ argument is unavailing as plaintiffs have alleged practical industry indicia that support the Pool Product distribution market as a distinct market. Significantly, plaintiffs allege that market participants view the wholesaling of Pool Products as a distinct channel of distribution. The complaint alleges that Pool Product manufacturers consider wholesale distributors such as PoolCorp to be a “unique and essential channel for the efficient distribution of their products,” because it would be expensive for manufacturers to directly access Pool Dealers and other customers. The complaint alleges that Pool Product Distributors are essential to manufacturers because they warehouse significant volumes of a wide range of product lines throughout the" }, { "docid": "4178800", "title": "", "text": "setting certain prices. Hiring and discharging of store employees, and transfers of personnel rest solely with the defendant in all stores. The retail stores served by different warehouses are charged different prices for the same goods at the same time. Separate accounting records are kept for each store which bears its own expenses of operation. In the operation of its warehouses, offices, canneries, bakeries, coffee roasting plant, food manufacturing and processing plants, printing and multigraphing shop, auto maintenance and fixture plant, mechanical shop, and other non-retail selling units, the defendant employs approximately 3200 workers. It is this great enterprise for which the defendant claims exemption from the Fair Labor Standards Act as a retail establishment. It is not disputed that the defendant is in the business of retailing food products to consumers. Nor do the facts show anything to indicate that the profit making transaction for the company is any other than the sale of merchandise on the retail store shelf to the individual food buyer. We may take it that defendant’s canning of vegetables, its roasting of coffee, baking of bread and all the other acts done in preparing and assembling food products for sale are part of a plan whose terminus is the retail sale over the counter to the consumer. From the standpoint of business integration, it might conceivably be assumed that this whole enterprise is an “establishment”. However, it is quite another thing to say that it is a retail establishment when it engages in so many important operations other than retailing, even though the retail sale is the event from which the defendant’s income is derived. The Administrator, provided for in the statute, has expressed a view contrary to the defendant’s position in the Interpretative Bulletin, issued by the Wage and Hour Division of the United States Department of Labor, defining the scope and applicability of § 13(a) (2). Interpretative Bulletin No. 6, Retail and Service Establishments (June, 1941). Each of the defendant’s retail stores under this interpretation, comes within the exemption as a single physical place of business, but not the “warehouses, central executive" }, { "docid": "23650643", "title": "", "text": "Company (Kroger) operates more than 1,400 supermarkets throughout the United States. In 1983, Kroger operated 32 supermarkets in the Indianapolis area, which together accounted for about 28 percent of area retail grocery sales. Defendant-appellee Super Valu Stores, Inc. (Super Valu), like Kroger, is a multibillion-dollar corporation. Although primarily a grocery wholesaler, Super Valu since 1980 has owned and franchised “Cub” retail food stores in various states. Cub stores are substantially larger than conventional supermarkets such as those operated by Indiana Grocery and Kroger, and offer a lower level of services to their customers in exchange for prices that normally are 6 to 10 percent lower than those of conventional stores. In late 1982, Super Valu decided to grant a Cub franchise to defendant-appellee Markkay of Indiana, Inc. (Markkay) to operate in the Indianapolis area beginning in late 1983. Thus began the entry of Super Valu and Cub into the Indianapolis retail grocery market and the events that spawned this litigation. When the Markkay Cub opened in the autumn of 1983, other multi-grocery store firms in addition to Indiana Grocery and Kroger were operating in Indianapolis. Marsh Supermarkets, Inc., (Marsh) operated 29 stores; the Great Atlantic & Pacific Tea Co. (A & P) operated 11 (but had already decided to withdraw from the market before Cub’s entry); O’Malia Food Markets, Inc. (O’Malia) operated 6; Dietel’s, Inc. (Mr. D’s) operated 4; Aldi, Inc., operated 4; and Seven-Eleven Supermarkets operated 4. In addition, other firms operated approximately 40 more supermarkets in the Indianapolis area. The Markkay Cub, of course, did not just appear in Indianapolis one morning. By early 1983, Indianapolis grocers, including Indiana Grocery and Kroger, knew that Super Valu was planning to enter the area market with several Cub stores and knew of Cub stores’ strategy of pricing as low or below its competitors and advertising that fact to the public. Indianapolis grocers also knew that Cub stores had been quite successful in other cities and that a substantial part of any of the Cub stores’ gain in area sales would come at their loss. Existing grocers, therefore, did not sit" }, { "docid": "23449663", "title": "", "text": "increased interest in nutrition and natural products recently developed in this country which has led a significant number of supermarkets to open up nutrition centers within their retail stores. The health food sections, particularly popular on the west coast, are actually self-contained mini-health stores, for the premium-priced products therein are segregated from the grocery’s more mundane items, thereby fostering the image of a high quality health food store within a retail supermarket. Products’ dispute with Foods is a natural byproduct of its expansion into conventional grocery stores. Naturally, Products was vigilant in attempting to restrict others from using the word “PLUS” even before its entrance into conventional grocery store sales. It is the proprietor of three organizations for the trademark PLUS and one registration for the trademark PLUS ONE-UP, and since 1970 it has forwarded cease and desist letters to companies relating to over 130 different uses of the word “PLUS,” and has filed numerous opposition proceedings in the Patent and Trademark Office. See, e.g., American Dietaids Co. v. Plus Products, 412 F.Supp. 691 (S.D.N.Y.), aff’d, 551 F.2d 299 (2d Cir.1976) (“ACEROLA PLUS” and “CAMU PLUS”); Plus Products v. Natural Organics, Inc., 204 U.S.P.Q. (BNA) 773 (T.T.A.B.1979) (“NATURE’S PLUS”); Plus Products v. Redken Laboratories, Inc., 199 U.S.P.Q. (BNA) 111 (T.T.A.B.1978) (“ph PLUS”). Defendant Foods, a chain of discount grocery stores, incorporated in New Jersey, is the latest company whose use of the word PLUS, Products is challenging. Foods has a markedly different public image from the high quality image of Products’ PLUS line, its chain of discount stores offering consumers lower prices in exchange for an absence of amenities. For instance, customers must select their merchandise from cartons and bins, they must pay by cash and must bag their own goods. Foods stocks national brands with which it utilizes shelf talkers bearing the PLUS mark, and it also has hundreds of private label items that are sold under its PLUS logo. Only a few of these items overlap with goods sold by Products, to wit, spices, food oils and pet foods. This particular concept of “bargain basement” grocery stores was" }, { "docid": "8407965", "title": "", "text": "1033 (D.C.Cir.2008) (stating that district court concluded that PNOS were not distinct market because they “compete within the broader market of grocery stores and supermarkets”). The D.C. Circuit reversed this decision and remanded the case, holding that the district court’s decision to limit its market analysis to marginal customers was error. See Whole Foods, 548 F.3d at 1041. Because core consumers — i.e., those who “demand[] exclusively a particular product or package of products” — can constitute a submarket worthy of antitrust protection, the D.C. Circuit determined that the FTC may have “show[n] a likelihood of success sufficient, using the sliding scale, to balance any equities that might weigh against injunction.” Id. In May 2009, following the remand, the FTC and Whole Foods entered into a consent agreement under which a Trustee of Whole Foods would divest itself of 32 locations, none of which was in Los Angeles County. See Decision and Order, available at http://www.fte. gov/os/adjpro/d9324/090529wfdo.pdf (last visited Jan. 23, 2012). The FTC then voluntarily dismissed the case, and the action was terminated. See Civil Action No. 07-1021, ECF No. 192. In January 2010, Plaintiff Kottaras brought this suit alleging that the merger foreclosed competition in the PNOS market solely in Los Angeles County, leading to supra-competitive prices there. See Compl. Specifically, she alleges that Whole Foods’s acquisition of Wild Oats substantially lessened competition in violation of Section 7 of the Clayton Act, 15 U.S.C. § 18 (Count I), created an unlawful monopoly in violation of Section 2 of the Sherman Act, 15 U.S.C. § 2 (Count II), and constituted an unlawful agreement in restraint of trade in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1, and Section 3 of the Clayton Act, 15 U.S.C. § 14 (Counts III and IV, respectively). See Compl., ¶ 2. Pursuant to Federal Rule of Civil Procedure 23, Plaintiff has now moved to certify a class of all persons who purchased “premium, natural, or organic products from Whole Foods supermarkets in California’s Los Angeles County” between the date of the merger and the date of this Court’s ruling. See" }, { "docid": "11489891", "title": "", "text": "and tea are sold in the same grocery stores as plaintiff’s wares. Coffee, tea, and fruit juices are potables; and all of the products of defendant and plaintiff are served at dining room tables. It is not unknown for a wholesale grocer or grocery chain to market under his special brand the exact variety of groceries here involved, ranging from coffee through canned fruits to fruit juices. Defendant has expended large sums upon advertising White House coffee and tea. The advertising has had such effect that a few purchasers would attribute to defendant any grocery sold under the White House mark; and of these some would buy that grocery more readily on account of the mistaken attribution. Compare A. W. Frey, Manufacturers’ Product, Package & Price Policies (1940), pp. 310, 311; Agnew and Haughton, Marketing Policies (1941), pp. 212, 213. It is not unusual for a grocer in his advertisements, order lists and displays to group defendant’s products with plaintiff’s products under the single rubric, White House. In my opinion the factors just recited are not conclusive. That goods are retailed through the same channels is often important. Cf. Restatement, Torts, § 731(d). Yet where the channel is the modern grocery store with its varied array of merchandise drawn from all quarters of the globe, this factor should not be regarded as of much weight. We are told that in republican Germany the presumption that goods bearing the same mark and sold through the same channel would be regarded by the customer as coming from the same source was a presumption not applied to drug stores, department stores and the like because “in those stores many products are sold which the public knows do not come from the same source.” John Wolff, Non-Competing Goods In Trade-Mark Law, 37 Col.L. Rev. 582, 586 note 21. See also pp. 594, 595. And the German rule has special relevance to American grocery stores not merely because standard retailing practice subdivides the stock and, for example, classifies coffees and teas separately from fruit juices and canned fruits, (Alex Todoroff, Food Buying Today, The Grocery" }, { "docid": "4178799", "title": "", "text": "the exception of one which is a coffee roasting plant, receive and stock the products manufactured and processed by itself, numerous private label items produced and packed expressly for defendant, and hundreds of other items of other manufacturers. Each warehouse serves the retail stores in' its zone, the operational territory of the defendant being divided into several zones. Each warehouse carries various food products which it distributes upon order to defendant’s retail stores and those owned and operated by its subsidiaries. Each warehouse has its own storage, transportation and office facilities. The retail stores are operated under a common general management. They vary, however, as to size, type of goods sold, service rendered and prices charged. Some stores sell dry groceries almost exclusively; others have groceries and a produce department; still others also have meat departments. Some operate on a self service plan. Some carry produce especially suited for the neighborhood in which they are located. The manager of each store bears the principal responsibility in ordering for his store. He also exercises discretion in setting certain prices. Hiring and discharging of store employees, and transfers of personnel rest solely with the defendant in all stores. The retail stores served by different warehouses are charged different prices for the same goods at the same time. Separate accounting records are kept for each store which bears its own expenses of operation. In the operation of its warehouses, offices, canneries, bakeries, coffee roasting plant, food manufacturing and processing plants, printing and multigraphing shop, auto maintenance and fixture plant, mechanical shop, and other non-retail selling units, the defendant employs approximately 3200 workers. It is this great enterprise for which the defendant claims exemption from the Fair Labor Standards Act as a retail establishment. It is not disputed that the defendant is in the business of retailing food products to consumers. Nor do the facts show anything to indicate that the profit making transaction for the company is any other than the sale of merchandise on the retail store shelf to the individual food buyer. We may take it that defendant’s canning of vegetables," }, { "docid": "16731747", "title": "", "text": "a market are able to coordinate their pricing and production activities, they can increase their collective profits and reduce consumer welfare by raising price and reducing output.”) (citing George Stigler, A Theory of Oligopoly, 72 J. Pol. Econ. 44 (1964) (arguing that successful collusion requires firms to overcome particular market uncertainties; one of the key uncertainties is whether another firm will \"cheat” its rivals by offering a lower price)); United States Energy Information Administration, World Crude Oil Production, 1960-2008, http://www.eia.doe.gov/aer/txt/ptbl 105, html (last visited June 13, 2009) (during the 1970s OPEC never controlled more than 56% of the world oil market). . Another consideration is that many alleged competitors’ product offerings differ substantially from those of defendants, including box stores selling goods in bulk, such as Costco; retailers selling a limited selection of products and brands, such as Trader Joe’s; and stores specializing in organic foods, such as Whole Foods. These markets are by their nature incapable of competing for much of the business of traditional supermarkets such as those operated by defendants. Notwithstanding these obvious facts, Costco, Trader Joe’s, and Whole Foods were each alleged by defendants to have placed competitive pressure on them during the labor dispute. . Interestingly, economic theory suggests an even stronger negative effect on competition: it would appear to predict that, at least in the short run, in a market in which large, dominant firms have an agreement limiting competition amongst themselves, such an agreement will tend to increase the prices charged by those large firms, and that smaller firms, rather than increasing whatever economic pressure they ordinarily exert on those larger firms by charging the lower prices that would obtain under competitive conditions in order to attract the larger firms’ customers, but will instead charge higher prices close to those being charged by the larger firms. See Herbert Hovenkamp, Federal Antitrust Policy § 4.1b (1994). Firms that pool profits are acting as a kind of cartel, and cartels that do not contain all the firms in the market are still able to raise prices above the prices that would be observed in a" }, { "docid": "8407964", "title": "", "text": "Finally, Plaintiffs alternative request for certification under Rule 23(b)(2) is easily rejected as equitable relief in this case is merely incidental to monetary damages. I. Background On August 28, 2007, Whole Foods acquired Wild Oats, another retailer specializing in premium, natural, and organic foods. See Compl., ¶ 1. A couple of months before the merger was consummated, the Federal Trade Commission sought to enjoin it on the ground that it would create monopolies in eighteen cities where Whole Foods and Wild Oats were the only premium, natural, and organic supermarkets (PNOS). The FTC’s motion for a preliminary injunction was denied by Judge Paul Friedman of this District because the FTC had not shown a likelihood of success on the merits. FTC v. Whole Foods Market, Inc., 502 F.Supp.2d 1, 49-50 (D.D.C.2007). His decision was based on a finding that the relevant product market was broader than PNOS and at least included “the retail sale of food and grocery items in supermarkets.” Id. at 19; see also FTC v. Whole Foods Market, Inc., 548 F.3d 1028, 1033 (D.C.Cir.2008) (stating that district court concluded that PNOS were not distinct market because they “compete within the broader market of grocery stores and supermarkets”). The D.C. Circuit reversed this decision and remanded the case, holding that the district court’s decision to limit its market analysis to marginal customers was error. See Whole Foods, 548 F.3d at 1041. Because core consumers — i.e., those who “demand[] exclusively a particular product or package of products” — can constitute a submarket worthy of antitrust protection, the D.C. Circuit determined that the FTC may have “show[n] a likelihood of success sufficient, using the sliding scale, to balance any equities that might weigh against injunction.” Id. In May 2009, following the remand, the FTC and Whole Foods entered into a consent agreement under which a Trustee of Whole Foods would divest itself of 32 locations, none of which was in Los Angeles County. See Decision and Order, available at http://www.fte. gov/os/adjpro/d9324/090529wfdo.pdf (last visited Jan. 23, 2012). The FTC then voluntarily dismissed the case, and the action was terminated. See" }, { "docid": "254101", "title": "", "text": "and the foregoing shall then not be construed to permit differentials based on differences in quantities greater than those so fixed and established: And provided further, That nothing herein contained shall prevent persons engaged in selling goods, wares, or merchandise in commerce from selecting their own customers in bona fide transactions and not in restraint of trade: And provided further, That nothing herein contained shall prevent price changes from time to time where in response to changing conditions affecting the market for or the marketability of the goods concerned, such as but not limited to actual or imminent deterioration of perishable goods, obsolescence of seasonal goods, distress sales under court process, or sales in good faith in discontinuance of business in the goods concerned. It is to be noted that “commodities” is here used in the context of items of “like grade and qualities” and as synonymous with “goods, wares or merchandise.” These terms are not commonly applied to electric power. Moreover, the statute appears to preserve a right to select one’s own customers in “bona fide transactions,” a right not traditionally accorded to public utilities. The section read as a whole reflects a concern about price discrimination with respect to manufactured products and consumer goods. The legislative history, reflecting the same concern, relates entirely to competitive problems then existing in the distribution of goods which conventionally were sold through a supplier-wholesaler-retailer channel that was being invaded by grocery chains and retail order houses. The House and Senate Reports, for example, refer to “goods, wares and merchandise” in discussing the scope of Section 2(a) and Representative Patman, when introducing his bill, spoke in terms of “food and merchandise distribution” and “huge chain stores.” Even more significant is the fact that the Congress which passed the Robinson-Pat-man Act in 1936 had a year earlier amended the Federal Power Act to provide for FPC review of all rates charged for the transmission or sale of electric power subject to its jurisdiction. The amendment, drawing from the Interstate Commerce Act, included a directive that the FPC review any disparity in rates between categories" }, { "docid": "12459333", "title": "", "text": "buy recurrently, ie. items which get used up or discarded.” Staples, 970 F.Supp. at 1073. The defendants in Staples argued that the alleged product market was contrived, and the appropriate market was the overall sale of office products. Id. The court found that although the products were the same whether they were sold through superstores or other types of retailers, products sold by office superstores nonetheless made up the relevant market. Id. at 1074-76. The court relied on evidence that “office superstore prices [were] affected primarily by other office superstores and not by non-superstore competitors.” Id. at 1076-77. The Court also cited differences between office superstores and other outlets, as well as special characteristics of office superstores’ customers. Id. at 1078-80. Here the plaintiffs similarly allege facts that suffice to make it plausible that sales of pool products by distributors are distinct from sales of Pool Products through other means in economically significant ways. Plaintiffs allege that Pool Dealers—the direct purchasers of Pool Products from distributors—favor distributors because of the diversity of offerings and fast delivery that distributors provide and the willingness of distributors to extend credit. The more manufacturers’ lines carried by a distributor, the better able the distributor is to satisfy dealer demands. As noted, the complaint alleges that distributors “are the only available source of Pool Products for the vast majority of dealers.” There is nothing in the complaint from which the Court could infer that Wal-Mart or other retailers offer Pool Products on the scale offered by distributors or with a similar level of service. See Grinnell, 384 U.S. at 573, 86 S.Ct. 1698 (“There are, to be sure, substitutes for the accredited central station service!,]” “[b]ut none of them appears to operate on the same level as the central station service”). That Pool Dealers might in some instance purchase pool products from manufacturers or other retailers does not negate that distributors can be Pool Dealers’ “core” suppliers. Whole Foods, 548 F.3d at 1037 (D.C.Cir.2008) (upholding a market consisting of sales at premium, natural and organic supermarkets, despite evidence that non-“core” customers of Whole Foods and" }, { "docid": "8407963", "title": "", "text": "MEMORANDUM OPINION JAMES E. BOASBERG, District Judge. Plaintiff Ekaterini Kottaras is a resident of Los Angeles County and a consumer of pre mium, natural, and organic products. She is a patron of Defendant Whole Foods Market, Inc. and also shopped at Wild Oats Markets before the two grocery chains merged. Believing this merger unlawfully raised prices on certain products, she brought this antitrust action against Whole Foods. She subsequently moved, under Federal Rule of Civil Procedure 23, to certify a class of Los Angeles County Whole Foods shoppers. Now that the parties have both submitted briefs and offered expert testimony at a hearing on this Motion, the Court believes class certification is not appropriate here for three central reasons. First, an essential element of Plaintiffs ease — that is, injury to individual members of the class — cannot be proven through classwide evidence; the action, accordingly, does not satisfy Rule 23(b)(3)’s requirement that common questions predominate over individual ones. Second, the proposed methodology of Plaintiffs expert is too vague for the Court to rigorously analyze. Finally, Plaintiffs alternative request for certification under Rule 23(b)(2) is easily rejected as equitable relief in this case is merely incidental to monetary damages. I. Background On August 28, 2007, Whole Foods acquired Wild Oats, another retailer specializing in premium, natural, and organic foods. See Compl., ¶ 1. A couple of months before the merger was consummated, the Federal Trade Commission sought to enjoin it on the ground that it would create monopolies in eighteen cities where Whole Foods and Wild Oats were the only premium, natural, and organic supermarkets (PNOS). The FTC’s motion for a preliminary injunction was denied by Judge Paul Friedman of this District because the FTC had not shown a likelihood of success on the merits. FTC v. Whole Foods Market, Inc., 502 F.Supp.2d 1, 49-50 (D.D.C.2007). His decision was based on a finding that the relevant product market was broader than PNOS and at least included “the retail sale of food and grocery items in supermarkets.” Id. at 19; see also FTC v. Whole Foods Market, Inc., 548 F.3d 1028," }, { "docid": "12459334", "title": "", "text": "delivery that distributors provide and the willingness of distributors to extend credit. The more manufacturers’ lines carried by a distributor, the better able the distributor is to satisfy dealer demands. As noted, the complaint alleges that distributors “are the only available source of Pool Products for the vast majority of dealers.” There is nothing in the complaint from which the Court could infer that Wal-Mart or other retailers offer Pool Products on the scale offered by distributors or with a similar level of service. See Grinnell, 384 U.S. at 573, 86 S.Ct. 1698 (“There are, to be sure, substitutes for the accredited central station service!,]” “[b]ut none of them appears to operate on the same level as the central station service”). That Pool Dealers might in some instance purchase pool products from manufacturers or other retailers does not negate that distributors can be Pool Dealers’ “core” suppliers. Whole Foods, 548 F.3d at 1037 (D.C.Cir.2008) (upholding a market consisting of sales at premium, natural and organic supermarkets, despite evidence that non-“core” customers of Whole Foods and Wild Oats sometimes “cross-shopped” at conventional supermarkets). The Fifth Circuit’s decision in Leegin, 615 F.3d at 418, does not require the Court to find plaintiffs proposed product market implausible. In Leegin, the court rejected a proposed market definition of the “wholesale sale of brand-name women’s accessories to independent retailers.” Id. The court said that “ ‘wholesale sale’ does not adequately define the relevant market, because the relevant market definition must focus on the product rather than the distribution level.” Id. The Court found “women’s accessories” too broad and vague a relevant product market and that PSKS failed to allege why brand-name goods were not interchangeable with non-brand-name products. Id. Unlike PSKS, however, the plaintiffs here have pled facts indicating why wholesale sales of Pool Products by distributors are seen as distinct by market participants. Plaintiffs’ definition of Pool Products is also not vague like “women’s accessories.” Id. Because plaintiffs have pled facts indicating a lack of interchangeability between Pool Products sold by distributors and Pool Products sold in other ways, they have sufficiently alleged a" }, { "docid": "20563034", "title": "", "text": "at an accelerating rate. The total number of grocery stores declined from a peak of 386,897 in 1939 to .244,833 in 1963. The Competitive Significance of Private Label Products in the Food Industry 23. Perhaps the most competitively significant innovation of the national mass merchandisers, made possible by their size, was their exploitation of “private label” products. A & P, Kroger, Safeway and National Tea were pioneers in this development. These and other national chains arranged for their own sources of supply and frequently themselves engaged in manufacturing or acquired manufacturers. 24. Private label permitted significant competitive advantages for these chains, including: (a) Private labels yield higher profits on products equivalent in quality to national brands which, in turn, permit lower consumer prices on products of high quality. (b) Private labels allow the food merchandiser to exercise exclusive control over (1) product specifications, (2) sources of supply, (3) quality standards and control, (4) packaging design and procurement, (5) physical movement of the product from source to retail outlet, (6) pricing and promotion, and (7) ultimate success or failure of the product. (c) Private labels enable the chain to bargain more favorably with national brand manufacturers and purchase national brand goods on more advantageous terms. (d) Private labels provide the establishment of a broader supply base of manufacturers, thereby decreasing dependence upon a relatively few, large national brand manufacturers. (e) Private labels give the retailer greater merchandising flexibility by introducing a new balancing dimension to its product mix and a versatile pricing approach depending upon marketing strategy so that in situations where nationally advertised brands are sold at or below cost, private label merchandise can serve to retain sufficient over-all margin so that operations remain profitable. (f) A low price image can be more effectively conveyed to the public through the introduction of private label into the over-all sales mix. (g) Consumer recognition of private label values attracts customers and builds retail sales volume and new items introduced under an established private label have ready consumer acceptance based upon other items under the same label. (h) Customer good will is transferred" }, { "docid": "8619381", "title": "", "text": "their activities come within the precise language of the exemption would appear to be clear, unless we should conclude as did the court of the Third Circuit in respect to the American Stores Company, that the appellee does not conduct a “retail establishment,” for if it be a retail establishment not only the greater part of its selling, but all of it, is in intrastate commerce. The industry considered in Walling v. American Stores Company, supra, was, as is the Smith business, a chain store activity. It likewise operated retail stores and warehouses for the economical and efficient distribution of its merchandise to chain store units. Its activities, however, went far beyond those here involved, not only in extent, but in kind. Its warehouses contained manufacturing, processing, and packing plants, bottling works, canneries, bakeries, and coffee-roasting plants; its activities crossed state lines; and its retail stores served by different warehouses, were charged differing prices for the same goods at the same time. Conceding Thai from the standpoint of business integration it might conceivably be assumed that the whole enterprise was an establishment, the court concluded however, that it was quite another thing to say that it was a retail establishment when it engaged in so many important operations other than retailing, even though the retail sale was the event which effected its derivation of income. It was, the court said [133 F.2d 844], “a multi-state business structure engaged in manufacturing and processing food products, warehousing and distribution of food items” and so not comparable to retail establishments sought to be exempted by Congressional grace. If the American Stores Company is an establishment, the Smith Company is, and no principle known to us requires distinction to be drawn in this respect between a business occupying a single store and one utilizing several or many retail outlets for the sale of its goods. No other activity such as wholesaling, manufacturing, or processing is disclosed by the record. The sole business of the Smith Company is retailing and its warehousing of merchandise without other purpose than to provide for necessary and economical distribution" }, { "docid": "23449684", "title": "", "text": "In Vitarroz Corp. v. Borden, Inc., 644 F.2d at 967, in finding no likelihood of confusion between use of the same mark for crackers and corn chips in the same retail outlets, this court stated: [T]his factor is not of overriding importance. Within retail food stores, the record shows that the products are shelved in different sections whenever space permits, the crackers in the “cookies and crackers” section, and the chips in the section for “salty, crunchy snacks.” More important, the record shows that Vitarroz targets its products at a distinct group of consumers, who shop for the Vitarroz name in specialty stores, many of which do not carry Borden’s chips. Buitoni Foods Corp. v. Gio. Buton & C.S.P.A., 680 F.2d 290, 292 (2d Cir.1982), also held that there was no likelihood of confusion between table wine and liqueurs that have only slight proximity because of different alcohol contents and uses. The differences in modes of marketing and the segregation of Products’ merchandise renders the slight proximity of the parties’ products insignificant. The weakness of the PLUS mark further assures lack of confusion between the products of the parties. Moreover, as we said in Vitarroz Corp. v. Borden, Inc., 644 F.2d at 966, “[i]n no case, however, have we determined a senior user’s right to injunctive relief solely on the basis of the similarity of the marks and the proximity of the products.” (8) Bridging the Gap Noting that RVI is an aggressive mer-chandizer and that health food products are ill-defined, the district court predicted that Products may well bridge the gap into “what might be considered conventional food products.” While this prognostication is open to question because of Products’ strict policy of confining its sales to health stores and nutrition centers, it is not clearly erroneous. Nevertheless, the specter of some blurring in distinction between health foods and conventional food items is outweighed by other factors. Foods runs a particular type of grocery, a discount store carrying brand-name items, and given the other Polaroid factors, we do not agree that the possibility that Products may sell conventional foods —" }, { "docid": "23650642", "title": "", "text": "BAUER, Chief Judge. Plaintiff-appellants Indiana Grocery Co., Inc. (Indiana Grocery) and Preston-Safeway, Inc. (Preston-Safeway) appeal from the district court’s grant of summary judgment to defendants on all of their federal antitrust and pendent state-law counts. 684 F.Supp. 561. The plaintiffs’ charges arose from pricing activity in the Indianapolis retail grocery market between 1983 and 1985. For the reasons that follow, we affirm. I. In mid-1982, Indiana Grocery operated 28 supermarkets in the Indianapolis area. In 1983, it sold about 13 percent of the area’s groceries. Preston-Safeway in 1983 operated 12 supermarkets in the Indianapolis area and its share of area grocery sales was about 10 percent. In 1985, the owners of Indiana Grocery acquired the common stock of Preston-Safeway, which by then had already acquired additional stores from another supermarket chain that was leaving the Indianapolis area and had sold some stores to Indiana Grocery. Since 1986, all of Indiana Grocery’s stores in Indianapolis have operated under the Preston-Safeway name. For simplification, we will hereinafter refer to both plaintiff-appellants as “Indiana Grocery.” Defendant-appellee The Kroger Company (Kroger) operates more than 1,400 supermarkets throughout the United States. In 1983, Kroger operated 32 supermarkets in the Indianapolis area, which together accounted for about 28 percent of area retail grocery sales. Defendant-appellee Super Valu Stores, Inc. (Super Valu), like Kroger, is a multibillion-dollar corporation. Although primarily a grocery wholesaler, Super Valu since 1980 has owned and franchised “Cub” retail food stores in various states. Cub stores are substantially larger than conventional supermarkets such as those operated by Indiana Grocery and Kroger, and offer a lower level of services to their customers in exchange for prices that normally are 6 to 10 percent lower than those of conventional stores. In late 1982, Super Valu decided to grant a Cub franchise to defendant-appellee Markkay of Indiana, Inc. (Markkay) to operate in the Indianapolis area beginning in late 1983. Thus began the entry of Super Valu and Cub into the Indianapolis retail grocery market and the events that spawned this litigation. When the Markkay Cub opened in the autumn of 1983, other multi-grocery store firms in" }, { "docid": "20936939", "title": "", "text": "frozen foods, fruits, vegetables, household supplies, drugs, and sundries; in 1959, the sale of food products accounted for 90% of all sales by grocery stores in the area; The relevant trade area in which defendants operated prior to the merger was the Los Angeles metropolitan area consisting of Los Angeles and Orange Counties; Los Angeles ranks as the second largest metropolitan area in the United States in terms of population, income, and retail dollar sales; approximately 6,750,000 persons reside in the area and total retail sales were approximately $9,100,000,000 in 1957; the Los Angeles metropolitan area is an appreciable trade area and a section of the country within the meaning of Section 7 of the Clayton Act; sales of groceries in the area approximate $2,500,000,000 annually ; Von’s and Shopping Bag prior to the merger were engaged in interstate commerce and Von’s presently is engaged in interstate commerce; several cooperatives operate in the metropolitan area, some who sell to nonmembers; Orange Empire, a cooperative, services numerous retail members and nonmembers in California, Arizona, and Nevada with an annual wholesale sales of approximately $280,000,000; prior to the merger, the twenty leading chains of supermarkets were all a part of the retail grocery competition in the area and each of the chains competed with each other; there was direct competition between some of the Von’s stores and some of the Shopping Bag stores, particularly in those instances where the stores were so located that they were competing for the same customers. With respect to the issues of fact and law, the parties are in agreement as follows: (1) that the defendant corporations were engaged in interstate commerce; (2) that the court has jurisdiction; (3) that any products or groups of products which are of sufficiently peculiar characteristics and uses as to make them distinct from all other products are in line of commerce within the meaning of Section 7 of the Clayton Act and that groceries and related products, taken as a whole, have such peculiar characteristics and uses in the operation of retail grocery stores; (4) that groceries and related products" } ]

[ { "docid": "7064123", "title": "", "text": "discovery ban was handed down on the scheduled date of the pre-trial conference; the court’s ruling was, therefore, consistent with its Local Rule 9(d), then in effect, which specified that discovery “shall be completed, if possible, prior to the pre-trial conference.” B. Denial of Motion to Supplement the Record Appellants contend that the trial court abused its discretion by refusing to receive post-trial evidence of a $20.00 BRAC assessment imposed on every employee to support a national strike against a different employer, the Norfolk and Western Railway. Appellants assert this expenditure should be rebated. They brought a motion to supplement the record based on F.R.Civ.P. 59, which allows the grant of a new trial on all or part of the issues under certain circumstances, and on F.R.Civ.P. 60(b)(2), which allows the court to set aside a judgment when there is newly discovered evidence which by due diligence could not have been discovered earlier. Appellants contend that the offered evidence would demonstrate that part of the court’s prospective relief — -a $1.00 per year rebate from the Local Lodges and System Board — was grossly inadequate. A motion to reopen to submit additional evidence is addressed to the sound discretion of the trial judge. Berns v. Pan American World Airways, Inc., 667 F.2d 826, 829 (9th Cir. 1982) and cases cited therein. The denial of a motion to vacate under F.R.Civ.P. 60(b) will be reversed only upon a clear showing of abuse of discretion. United States v. Russell, 578 F.2d 806, 807 (9th Cir. 1978). The same is true with respect to a motion to supplement the record brought under F.R.Civ.P. 59. Johnson v. United States, 270 F.2d 488, 492 (9th Cir. 1959), cert. denied, 362 U.S. 924, 80 S.Ct. 678, 4 L.Ed.2d 743 (1960). We do not believe the district court abused its broad discretion. As the union points out, the costs of a strike are germane to collective bargaining since a strike is one of the central methods employed in collective bargaining for improving wages and working conditions. The assessment in question should not be included in any rebate;" } ]

[ { "docid": "18505253", "title": "", "text": "be dismissed.” This order contained no proof of service and National Bank’s counsel claims never to have received it. National Bank did not respond to the conditional order. The BAP dismissed the appeal on April 14, 1988. National Bank moved the BAP to set aside its order of dismissal, claiming the designation of the transcript was “incorrect[ ],” that no notice of the procedural default was received, and that dismissal was therefore “an unwarranted sanction.” The BAP denied this motion without explanation on June 14, 1988. National Bank filed a notice of appeal to this court on June 24, 1988. National Bank’s notice purports to appeal both the bankruptcy court’s December 1987 summary judgment and the BAP’s June 1988 refusal to reconsider its order of dismissal. However, under Fed.R.App.P. 4(a)(1), National Bank’s notice was timely only as to the June 1988 denial of the motion to reconsider. Accordingly, we have jurisdiction to review only the June 1988 order and do not address the merits. Cf. Ellingsworth v. Chrysler, 665 F.2d 180, 183-84 (7th Cir.1981) (notice timely as to denial of Rule 60(b) motion but untimely as to underlying judgment confers appellate jurisdiction only as to Rule 60(b) denial). Although our standard of review of a BAP order denying a motion to reconsider is apparently a question of first impression, we review for abuse of discretion. This is the standard we apply to orders denying relief from judgment under Fed.R.Civ.P. 60(b). Thompson v. Housing Authority, 782 F.2d 829, 832 (9th Cir.1986). We have previously analogized the dismissal of a bankruptcy appeal for failure to prosecute to a dismissal under Fed.R.Civ.P. 41(b). In re Hill, 775 F.2d 1385, 1386-87 (9th Cir. 1985). Denial of reconsideration of such a dismissal is appropriately analogized to a Rule 60(b) determination. Bankruptcy Rule 8001(a) grants the BAP authority to dismiss appeals for non-prosecution, including failure to make a timely written request for a transcript. Greco v. Stubenberg, 859 F.2d 1401, 1404 (9th Cir. 1988). However, such a dismissal constitutes an abuse of discretion if the court fails to consider both alternative sanctions and the relative culpability" }, { "docid": "14738130", "title": "", "text": "default or his counterclaim would be dismissed. Yusuf then filed a motion for default judgment, with a memorandum of points and authorities and declarations in support of his motion. A hearing was scheduled for July 27, 1987. No opposition papers were filed, and Hagen and the Yusovs did not appear at the hearing. After making certain that the Yusovs had proper notice of the hearing, the district court entered a default judgment against them, giving title to several real properties to Yusuf, and providing for damages in the sum of $2,035,387.90. The Yusovs subsequently filed a motion to set aside the default judgment under federal rules 55(c) and 60(b), which the court denied after holding a hearing. The Yusovs also filed, ex parte, an application for stay of execution of judgment, and an application for an order expunging all abstracts of judgment issued by the court, which the court also denied. DISCUSSION A. Default Judgment as a Sanction This court reviews the imposition of sanctions for an abuse of discretion. North American Watch v. Princess Ermine Jewels, 786 F.2d 1447, 1450 (9th Cir.1986). We cannot say that the trial court abused its discretion in this case. The Yusovs and their attorney consistently and willfully failed to obey court orders and follow the rules of procedure, resulting in great delay. A previous sanction of $3,880 in attorneys’ fees had been ignored. The district court has an obligation to manage its docket, and may use sanctions against a party when necessary. The court found that no sanction short of striking the answer and entering default was sufficient. The default against the Yusovs, although harsh, was not an abuse of discretion under the egregious facts of this case. B. Denial of Motion to Set Aside Judgment under Rule 60(b) We review the denial of a motion to set aside a default judgment under Rules 55(c) and 60(b) of the Federal Rules of Civil Procedure for an abuse of discretion. Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 832 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60" }, { "docid": "22234689", "title": "", "text": "no action had been taken on Oliva’s case, the district court issued an order dismissing the action. The district court stated as its reason for dismissal that pursuant to local rules and order of the court, Oliva should have filed a motion for summary judgment by August 6, 1987, and that no action had been taken on the case since July 6, 1987. The court filed ah order dismissing the action on February 27, 1989. Oliva filed a motion for relief from the order pursuant to Rule 60(b), Fed.R.Civ.P., which the court denied by order dated March 21, 1989. On that same date, the court entered a judgment of dismissal, “[i]n accordance with the Court Order filed February 27, 1989.” Oliva’s notice of appeal, filed within 60 days of the March 21 judgment, states he appeals “from the judgment of dismissal rendered by the Court on March 21, 1989.” The Secretary argues that Oliva’s appeal is solely from the denial of Oliva’s Rule 60(b) motion, and not from the underlying dismissal. We disagree. Oliva filed a timely notice of appeal from the March 21 judgment, which is based on the February 27 order of dismissal. Therefore, our review is of the dismissal of the action, not of the decision on the 60(b) motion. Compare Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir.1991) (appeal of court’s denial of Rule 60(b) motion does not bring up the underlying judgment for review). District courts have inherent power to control their dockets and may impose sanctions, including dismissal, in the exercise of that discretion. Hamilton Copper & Steel Corp. v. Primary Steel, Inc., 898 F.2d 1428, 1429 (9th Cir.1990) (citations omitted). Because dismissal is a harsh penalty, it should be imposed as a sanction only in extreme circumstances. Thompson v. Housing Authority, 782 F.2d 829, 831 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986). The district court’s sua sponte dismissal of this case for failure to prosecute is reviewed for abuse of discretion. Id. at 832. Of the factors that our circuit has advised district courts to" }, { "docid": "22234690", "title": "", "text": "a timely notice of appeal from the March 21 judgment, which is based on the February 27 order of dismissal. Therefore, our review is of the dismissal of the action, not of the decision on the 60(b) motion. Compare Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir.1991) (appeal of court’s denial of Rule 60(b) motion does not bring up the underlying judgment for review). District courts have inherent power to control their dockets and may impose sanctions, including dismissal, in the exercise of that discretion. Hamilton Copper & Steel Corp. v. Primary Steel, Inc., 898 F.2d 1428, 1429 (9th Cir.1990) (citations omitted). Because dismissal is a harsh penalty, it should be imposed as a sanction only in extreme circumstances. Thompson v. Housing Authority, 782 F.2d 829, 831 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986). The district court’s sua sponte dismissal of this case for failure to prosecute is reviewed for abuse of discretion. Id. at 832. Of the factors that our circuit has advised district courts to consider before resorting to the penalty of dismissal, see Thompson, 782 F.2d at 831, Hamilton Copper & Steel Corp., 898 F.2d at 1430, the two that are decisive in this case are the failure to consider less drastic alternatives and the lack of warning of imminent dismissal of the case. In cases involving sua sponte dismissal of an action, rather than dismissal following a noticed motion under Rule 41(b), Fed.R.Civ.P., there is a closer focus on these two considerations. See Hamilton Copper & Steel Corp., 898 F.2d 1428; see also Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir.1991). Where, as here, the district court does not explicitly consider these factors, we independently review the record to determine whether the order of dismissal was an abuse of discretion. Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir.1987), cert. denied, 488 U.S. 819, 109 S.Ct. 59, 102 L.Ed.2d 37 (1988). The record before us does not reveal that the district court considered sanctions less drastic than dismissal. A district court" }, { "docid": "10978572", "title": "", "text": "a case to federal court unless they could be characterized as shams. See Bryant II, 844 F.2d at 605. Consequently, whenever a case with doe defendants was permitted to proceed in federal court, it was only because they were appropriately \"ignored.” Chism v. National Heritage Life Ins. Co., 637 F.2d 1328, 1330 (9th Cir.1981). Thus, Bryant's suggestion that a federal district court previously had jurisdiction to entertain claims against doe defendants is incorrect. .Rule 56(f) provides as follows: “Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” . Bryant does not argue on appeal that the district court abused its discretion by denying his Rule 60(b) motion for relief from the judgment. We review the district court's ruling on a Rule 60(b) motion for an abuse of discretion. Thompson v. Housing Authority of the City of Los Angeles, 782 F.2d 829, 832 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986). The record provides no indication that the district court abused its discretion." }, { "docid": "21722585", "title": "", "text": "under rule 60(b)(6) requires a showing of extraordinary circumstances not related to inadvertence or neglect already covered in rule 60(b)(1). See Corex Corp. v. United States, 638 F.2d 119, 121 (9th Cir.1981). Unlike the rest of rule 60(b), subdivision (6) is construed harshly against the movant. See id. Danon, therefore, cannot prevail merely by alleging facts that tend to show the error of the original dismissal. See Browder, 434 U.S. at 263 n. 7,98 S.Ct. at 560 n. 7; SEC v. Seaboard Corp., 666 F.2d 414, 416 (9th Cir.1982). My review of the rule 60(b) moving papers reveals that the essence of Danon’s claim, as stated in the memorandum and declarations, was that Danon personally had nothing to do with his attorney’s misfeasance and should not be penalized for it. Even if true, this is legally insufficient for a rule 60(b)(6) motion. A number of courts have held that in order for a party to prevail under rule 60(b)(6), counsel must have committed at least gross negligence, while his client must not have been neglectful. See, e.g., King v. Mordowanec, 46 F.R.D. 474, 479-80 (D.R.I.1969). Other courts have concluded that gross negligence is an inadequate basis for a rule 60(b)(6) motion. See, e.g., Schwarz v. United States, 384 F.2d 833, 835-36 (2d Cir. 1967); see also Inryco, Inc. v. Metropolitan Engineering Co., 708 F.2d 1225, 1233-34 (7th Cir.), cert. denied, 464 U.S. 937, 104 S.Ct. 347, 78 L.Ed.2d 313 (1983); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2864, at 221-23 (1973). We need not decide that issue because even if gross negligence were adequate, Danon has conceded in his moving papers that his counsel’s actions did not rise to the level of gross negligence. Thus, I conclude that Judge Marshall did not abuse her discretion by denying Danon’s rule 60(b) motion because justification for the denial was evident from the moving papers. See, e.g., Standard Newspapers, Inc. v. King, 375 F.2d 115, 116 (2d Cir.1967) (per curiam). BOOCHEVER, Circuit Judge, dissenting in part. While I believe that Danon and his counsel’s conduct warranted sanctions, I respectfully" }, { "docid": "11108384", "title": "", "text": "to doubt that the declaratory judgment was appealable under the terms of the Rule 68 judgment, the City moved the district court to modify or vacate the judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. It argued that there was a misunderstanding and mistake in the formation of the agreement: Blair believed that the judgment would preclude an appeal, while the City thought an appeal was allowed. The district court denied the motion. Id. at 313-17. II The City asks us to review the district court’s denial of the Rule 60(b) motion to vacate or modify the offer of judgment. Motions for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b) are committed to the sound discretion of the trial judge. Thompson v. Housing Authority, 782 F.2d 829, 832 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 98 L.Ed.2d 60 (1986). We will not reverse the decision absent an abuse of discretion. Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir.1991). The City fails to point out how the district court abused its discretion. At most, the City repeats to us the legal arguments that it made to the district court and asks us to resolve them opposite from the district judge’s resolution. However, we do not review the district court’s decision de novo. Under our review, we hold there was no abuse of discretion. On the contrary, its discussion of the reasons for refusing the motion are persuasive and compelling. See Blair II, 795 F.Supp. at 313-17. The City argues that there was a mutual mistake in forming the agreement, since both Blair and the City thought that the judgment would preserve appeal rights. In the alternative, it argues that there was no meeting of the minds about the agreement if Blair did not intend to preserve appeal rights while the City did have such an intention. The simple fact is, however, that the right to appeal was not a term of the agreement. At most, the mistake or misunderstanding was in the parties’ estimation of the future affect that the" }, { "docid": "18697004", "title": "", "text": "of discretion. Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 832 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986). This court has set forth three factors to consider in Rule 60(b) motions: “(1) whether the plaintiff will be prejudiced, (2) whether the defendant has a meritorious defense, and (3) whether culpable conduct of the defendant led to the default.” Falk v. Allen, 739 F.2d 461, 463 (9th Cir.1984). BEB contests the district court’s application of the culpable conduct factor. The district court relied on Meadows v. Dominican Republic, 817 F.2d 517 (9th Cir.), cert. denied, 484 U.S. 976, 108 S.Ct. 486, 487, 98 L.Ed.2d 485 (1987), to conclude that BEB’s conduct was not the result of excusable neglect. In Meadows, this court held that because the Dominican Republic knew the legal consequences, its failure to respond to a complaint constituted culpable conduct. Id. at 521-22. BEB cites Gregorian v. Izvestia, 871 F.2d 1515 (9th Cir.), cert. denied, — U.S. -, 110 S.Ct. 237, 107 L.Ed.2d 188 (1989), in support of its argument that its conduct was not culpable. In Gregorian, the Soviet government, acting on the belief that neither international nor U.S. law provided jurisdiction over the plaintiffs’ primary claims, instructed a Soviet trading organization to refuse to enter an appearance. The district court entered a default judgment against the non-appearing defendant and denied defendant’s Rule 60(b) motion to set aside the default judgment. We held that the district court abused its discretion in denying defendant’s Rule 60(b) motion. We explained that a defendant does not act culpably when it refuses to appear on instructions from its government where the instructions are based on the reasonable belief that the government and its entities are immune from suit. Id. at 1525. BEB contends that it failed to respond because of the Chinese government’s refusal to grant its initial application for an exit visa and because of the disruption of normal business activities caused by the Tiananmen Square Incident. This case is distinguishable from Gregorian in that BEB does not allege that the PRC" }, { "docid": "22586620", "title": "", "text": "60(b) motion seeking to void the decree and injunction. Among the contentions raised were arguments that the district court lacked jurisdiction to order an injunction, that the injunction constituted an illegal restraint of trade, and that changed circumstances made the injunction inequitable. Without allowing discovery, the district court denied the 60(b) motion, ruling that “the subject pleading raises no basis for relief under that rule” and that the motion, filed sixteen months after entry of the consent decree, was not filed within a “reasonable” time. Aireo appeals the denial of the civil contempt motion. Van Vorous and Vac-Tec appeal the denial of the 60(b) motion. I 60(b) MOTION When reviewing the denial of a 60(b) motion, we are generally limited to determining whether the denial amounts to an abuse of discretion. Unless the trial court was powerless to render the judgment in the first instance, an appeal from the denial of a 60(b) motion raises for review only the order itself and not the underlying judgment. Browder v. Director, Department of Corrections, 434 U.S. 257, 263 n.7, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Hayward v. Britt, 572 F.2d 1324, 1325 (9th Cir. 1978) (per curiam); Pagan v. American Airlines, Inc., 534 F.2d 990, 992-93 (1st Cir. 1976). We note that the underlying judgment was by consent and has the same force and effect for 60(b) purposes as a judgment rendered on the merits following trial. United States v. Kellum, 523 F.2d 1284, 1287 (5th Cir. 1975); Siebring v. Hansen, 346 F.2d 474, 477 (8th Cir.), cert. denied, 382 U.S. 943, 86 S.Ct. 400, 15 L.Ed.2d 352 (1965); Securities & Exchange Commission v. Thermodynamics, Inc., 319 F.Supp. 1380, 1382 (D.Colo.1970), aff’d, 464 F.2d 457 (10th Cir. 1972), cert. denied, 410 U.S. 927, 93 S.Ct. 1358, 35 L.Ed.2d 588 (1973). Although Van Vorous’ motion did not specify which subdivision of 60(b) he relied on, apparently his arguments appealed to 60(b)(4), (5) and (6). Rule 60(b)(5) allows relief from the operation of judgment when “it is no longer equitable” to give the judgment prospective application. Rule 60(b)(6) provides a remedy for “any" }, { "docid": "18505254", "title": "", "text": "timely as to denial of Rule 60(b) motion but untimely as to underlying judgment confers appellate jurisdiction only as to Rule 60(b) denial). Although our standard of review of a BAP order denying a motion to reconsider is apparently a question of first impression, we review for abuse of discretion. This is the standard we apply to orders denying relief from judgment under Fed.R.Civ.P. 60(b). Thompson v. Housing Authority, 782 F.2d 829, 832 (9th Cir.1986). We have previously analogized the dismissal of a bankruptcy appeal for failure to prosecute to a dismissal under Fed.R.Civ.P. 41(b). In re Hill, 775 F.2d 1385, 1386-87 (9th Cir. 1985). Denial of reconsideration of such a dismissal is appropriately analogized to a Rule 60(b) determination. Bankruptcy Rule 8001(a) grants the BAP authority to dismiss appeals for non-prosecution, including failure to make a timely written request for a transcript. Greco v. Stubenberg, 859 F.2d 1401, 1404 (9th Cir. 1988). However, such a dismissal constitutes an abuse of discretion if the court fails to consider both alternative sanctions and the relative culpability of the appellant and his attorney, because dismissal may inapy: /oriately punish the appellant for the negle s. of his counsel. Greco, 859 F.2d at 1404; In re Hill, 775 F.2d at 1387; see also Henderson v. Duncan, 779 F.2d 1421,1423 (9th Cir.1986) (standards for dismissal under Fed.R.Civ.P. 41(b)). Although these precedents involved dismissals by district courts rather than by the BAP, the same standard should apply to the BAP. National Bank’s motion for reconsideration satisfied Rule 60(b)’s recognition of “mistake, inadvertence, surprise, or excusable neglect” as possible grounds for reconsideration. Either prior to its dismissal order or upon reconsideration, the BAP should have considered alternative sanctions or whether the mistake of counsel deserved to be imputed to the client. Its failure to do so without explanation was an abuse of discretion. Cf. Jackson v. Beech, 636 F.2d 831, 835-36 (D.C.Cir.1980) (abuse of discretion to refuse to set aside inadvertent default where no prejudice to other party appears). Although in “egregious circum stances” a court may dismiss a case for non-compliance with procedural rules without" }, { "docid": "23273203", "title": "", "text": "explanations during the April 24, 1987 hearing, granting appellants a second extension of time within which to comply with the court’s orders. Finally, appellants offered the same inadequate explanations for failure to comply with the discovery orders during the hearing on May 1, 1987. Judge Conti had simply heard them all when he ultimately ordered the case dismissed and assessed sanctions. With respect to appellants’ claim that sanctions should have been imposed solely on counsel rather than the client, this argument would require us to ignore established law. In Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), the Supreme Court expressly stated: There is certainly no merit to the contention that dismissal of petitioner’s claim because of his counsel’s unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequence of the acts or omissions of this freely selected agent. Id. at 633-34, 82 S.Ct. at 1390-91. See also Chism v. Nat’l Heritage Life Ins. Co., 637 F.2d 1328, 1332 (9th Cir.1981). C. Post Judgment Motion On June 8, 1987, motions were filed requesting, inter alia, leave to file a late response to TWA’s motion to dismiss. A declaration of counsel accompanied the motion. Judge Conti denied the motion stating that “[a]t this late date, plaintiff cannot seriously contend she lacked an opportunity to respond to defendant’s motion.” ER 149 at 4. We review denials of motions under Fed.R.Civ.P. 60 for abuse of discretion. Thompson v. Housing Authority of the City of Los Angeles, 782 F.2d 829, 832 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986). Appellants’ claim that Judge Conti abused his discretion is without merit. No aspect of appellants’ explanation for their neglect constitutes a valid reason or an adequate showing of excusable neglect for relief under Rule 60(b). Moreover, under Local Rule 220-1, the district court was under no obligation to hold a hearing on the motion. We find no abuse of discretion in the court’s denial of" }, { "docid": "11882078", "title": "", "text": "257, 263 n.7, 98 S.Ct. 556, 560 n.7, 54 L.Ed.2d 521. Furthermore, “[t]he Court of Appeals may review the ruling [on a Rule 60(b) motion] only for abuse of discretion . . . and an appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” Id. Spellman’s arguments must all be evaluated solely as they bear on the district court’s exercise of discretion on the Rule 60(b) mo tion. He cannot prevail merely by showing that the default judgment itself was erroneous. Most of the considerations advanced by Spellman go to the merits of the default judgment. These matters alone are not sufficient grounds for granting a Rule 60(b)(1) motion. Browder, supra, 434 U.S. at 263 n.7, 98 S.Ct. at 560 n.7. See also Hayward v. Britt, 572 F.2d 1324, 1325 (9th Cir. 1978). Before the issue of Spellman’s defenses can be reached, he must show mistake, surprise, inadvertence, or excusable neglect. The district court specifically found that he had failed to do so. Indeed, the court’s finding, amply supported by the record, was that it was only through his own contumacy that he declined to participate in this suit, that his Answer was stricken, that sanctions (which remain unpaid) were imposed, that a default was taken against him, and that judgment was entered. The steps taken by Spellman show a pattern of conscious behavior that cannot be characterized as inadventence. Spellman also argues that his motions should have been granted because the court was without power to strike his answer and enter default for his. mere failure to pay discovery sanctions. If the court was without such power, and the judgment therefore void, then it may be set aside under Rule 60(b)(4). Rule 37(b), Federal Rules of Civil Procedure, authorizes courts to employ various sanctions, including “striking out pleadings or parts thereof ... or rendering a judgment by default,” Rule 37(b)(2)(C), when “a party ... fails to obey an order to permit or provide discovery, including an order made under subdivision (a) of this rule,” Rule 37(b)(2). The order Spellman violated by refusing" }, { "docid": "8822785", "title": "", "text": "Dahl and Shugart appeal. II. DISCUSSION Federal Rule of Civil Procedure 41(b) provides that a defendant may move for dismissal of an action for “failure of the plaintiff to prosecute or to comply with these rules or any order of court.” Federal Rule of Civil Procedure 16(f) provides for the imposition of sanctions when an attorney disobeys a scheduling or pretrial order or is unprepared to participate in a pretrial conference. Before imposing dismissal as a sanction, the district court must weigh several factors: the public’s interest in expeditious resolution of litigation; the court’s need to manage its docket; the risk of prejudice to the defendants; the public policy favoring disposition of cases on their merits; and the availability of less drastic sanctions. Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 831 (9th Cir.) (per curiam), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986). “Dismissal, however, is so harsh a penalty it should be imposed as a sanction only in extreme circumstances.” Id. This court reviews a district court’s dismissal under rule 41(b) for abuse of discretion, determining whether the sanction was clearly outside the acceptable range based upon the facts of the particular case. Chism v. National Heritage Life Ins. Co., 637 F.2d 1328, 1331 (9th Cir.1981), overruled on other grounds, Bryant v. Ford Motor Co., 844 F.2d 602, 605 (9th Cir.1987) (en banc); see also Hyde & Drath v. Baker, 24 F.3d 1162, 1169 (9th Cir.1994). Here, the court dismissed the case because the plaintiffs’ attorneys had failed to pay sanctions in the manner prescribed by the court, one attorney had failed, to pay sanctions altogether and a timely joint exhibit and witness list had not been filed. Under the particular facts of this case, we conclude the dismissal was improper because public policy strongly favored resolution of this dispute on the merits, outright dismissal penalized only one of two parties guilty of discovery abuse, and dismissal severely penalized plaintiffs Dahl and Shugart for their counsels’ bad behavior. In cases that implicate important public policy concerns, the court should weigh the public" }, { "docid": "14738131", "title": "", "text": "Ermine Jewels, 786 F.2d 1447, 1450 (9th Cir.1986). We cannot say that the trial court abused its discretion in this case. The Yusovs and their attorney consistently and willfully failed to obey court orders and follow the rules of procedure, resulting in great delay. A previous sanction of $3,880 in attorneys’ fees had been ignored. The district court has an obligation to manage its docket, and may use sanctions against a party when necessary. The court found that no sanction short of striking the answer and entering default was sufficient. The default against the Yusovs, although harsh, was not an abuse of discretion under the egregious facts of this case. B. Denial of Motion to Set Aside Judgment under Rule 60(b) We review the denial of a motion to set aside a default judgment under Rules 55(c) and 60(b) of the Federal Rules of Civil Procedure for an abuse of discretion. Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 832 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986). Rule 55(c) provides that a default judgment may be set aside in accordance with Rule 60(b). Fed.R.Civ.P. 55(c). Rule 60(b)(1) allows a court to set aside a final judgment for “mistake, inadvertence, surprise, or excusable neglect.” Fed.R.Civ.P. 60(b)(1). We agree with the district court that Hagen’s conduct went well beyond lack of diligence, or carelessness. Nor were the Yusovs mere passive victims of the misdeeds. Hagen and the Yusovs intentionally and repeatedly disregarded court orders. The conduct of this litigation was inexcusable, and the district court did not abuse its discretion in denying relief to the Yusovs under Rules 55(c) and 60(b). C. Grant of Motion to Compel The Yusovs challenge the magistrate’s procedure in granting the motion to compel discovery. We review the magistrate’s decision for an abuse of discretion. See Hatch v. Reliance Insurance Co., 758 F.2d 409, 416 (9th Cir.), cert. denied, 474 U.S. 1021, 106 S.Ct. 571, 88 L.Ed.2d 555 (1985). The Yusovs contend that they were prejudiced by the magistrate’s refusal to consider their opposition papers. The Yusovs failed," }, { "docid": "1987288", "title": "", "text": "the time within which to make a Rule 60 motion had long since passed, and the motions appear to have no merit. Carter timely appeals. We review the district court’s denial of a Rule 60 motion for an abuse of discretion. Thompson v. Housing Auth., 782 F.2d 829, 832 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986). II. Timeliness of Rule 60(b) Motion The district court denied Carter’s Rule 60 motion as untimely. A motion under Fed. R.Civ.P. 60(b) must be made “within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.” A. The use of the words “entered or taken” creates some ambiguity as to when the time for filing a Rule 60(b) motion begins to run. We find no case that differentiates “taken” from “entered”. The Federal Rules of Civil Procedure have established a procedure by which a judgment is to be entered. The Supreme Court has commented that the purpose of these rules in relation to filing a notice of appeal, is to make it clear when the time for filing a notice of appeal begins to run. See Bankers Trust Co. v. Mallis, 435 U.S. 381, 384-85, 98 S.Ct. 1117, 1119-20, 55 L.Ed.2d 357 (1978) (per curiam). The need for clarity is equally compelling when it comes to filing post-judgment motions under Rule 59 and 60. Both these rules contain time requirements which are as rigidly applied as the time requirement for filing a notice of appeal. See Fed.R.Giv.P. 6(b) (the court may not extend time for taking action under either Rule 59 or 60(b)). Wherever the rules establish a time requirement that limits a litigant’s ability to obtain relief from a final judgment, it is imperative that the district court provide a clear signal that the time period within which that relief can be sought has begun to run. For this reason, we hold that the time requirements of Rule 60(b) only commence running upon “entry” of final judgment that complies with Rule" }, { "docid": "11882077", "title": "", "text": "FERGUSON, Circuit Judge: Spellman was named as a cross-defendant in a cross-complaint filed by some of the defendants in a securities case. After failing to produce requested documents, and failing to attend his noticed deposition, he was ordered to comply, and to pay sanctions of $790. He then gave his deposition, but refused to pay the $790. Upon motion, the court struck his answer to the cross-complaint and entered a default against him, which was eventually reduced to judgment for $669,739.54. Four months later, Spell-man filed a motion to set aside the judgment under Rule 60(b), Federal Rules of Civil Procedure. He now appeals from the denial of this motion, and from the denial of his subsequent motion for reconsideration. For the reasons set forth below, we reverse the decision of the district court. Analysis here must begin with the proposition that “[a] motion for relief from judgment under Rule 60(b) . . . does not toll the time for appeal from, or affect the finality of, the original judgment.” Browder v. Director, 434 U.S. 257, 263 n.7, 98 S.Ct. 556, 560 n.7, 54 L.Ed.2d 521. Furthermore, “[t]he Court of Appeals may review the ruling [on a Rule 60(b) motion] only for abuse of discretion . . . and an appeal from denial of Rule 60(b) relief does not bring up the underlying judgment for review.” Id. Spellman’s arguments must all be evaluated solely as they bear on the district court’s exercise of discretion on the Rule 60(b) mo tion. He cannot prevail merely by showing that the default judgment itself was erroneous. Most of the considerations advanced by Spellman go to the merits of the default judgment. These matters alone are not sufficient grounds for granting a Rule 60(b)(1) motion. Browder, supra, 434 U.S. at 263 n.7, 98 S.Ct. at 560 n.7. See also Hayward v. Britt, 572 F.2d 1324, 1325 (9th Cir. 1978). Before the issue of Spellman’s defenses can be reached, he must show mistake, surprise, inadvertence, or excusable neglect. The district court specifically found that he had failed to do so. Indeed, the court’s finding, amply" }, { "docid": "22849246", "title": "", "text": "affected competition. When reduced to its essentials, Coastal’s claim “does no more than state [its] commercial disappointment at losing [Toyota’s] patronage — the recurrent case of the jilted ... supplier who loses a manufacturer’s franchise and accuses the manufacturer and the new suitor of attempting to monopolize something.” Dunn & Mavis, 691 F.2d at 243-44. In addition, Coastal’s contention that the district court should have reopened the case when Coastal informed the court of the mistake made by Coastal's expert is without merit. We review denials of motions under Fed.R.Civ.P. 59 and 60 for abuse of discretion. Thompson v. Housing Authority of the City of Los Angeles, 782 F.2d 829, 832 (9th Cir.) cert. denied, — U.S. —, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986); Robins v. Harum, 773 F.2d 1004, 1006 (9th Cir.1985). In order to establish an abuse of discretion, Coastal must make three showings. First, Coastal must establish that the revised testimony of its expert constituted “newly discovered evidence” within the meanings of Rules 60(b)(2) and 59. Second, Coastal must have exercised “due diligence” to discover this evidence. Third, the newly discovered evidence must be of such magnitude that production of it earlier would have been likely to change the disposition of the case. Coastal fails to meet any of these three criteria. On the first point, Coastal’s argument falls short because the evidence upon which the expert’s testimony was based had been in Coastal’s possession since the start of litigation. Evidence is not “newly discovered” under the Federal Rules if it was in the moving party’s possession at the time of trial or could have been discovered with reasonable diligence. Engelhard Industries, Inc. v. Research Instrumental Corp., 324 F.2d 347, 352 (9th Cir.1963), cert. denied, 377 U.S. 923, 84 S.Ct. 1220, 12 L.Ed.2d 215 (1964); accord Area Transportation Authority v. Missouri, 640 F.2d 173, 175 (8th Cir.1981). See also 11 Wright & Miller § 2859 (1973) (“Under both rules [59 and 60], if [the evidence] was in the possession of the party before the judgment was rendered it is not newly discovered ...”). This fact of" }, { "docid": "11108383", "title": "", "text": "City allowed judgment to be taken against it on Blair’s claims of false arrest and violations of the First, Fourth, and Fourteenth Amendments with respect to his arrests on four different occasions. It proposed allowing an award of damages to be taken against it in the total amount of $4,000. The City also allowed judgment to be taken against it on the claim for declaratory relief “in accordance with the Court’s Opinion and Order.” Id. In addition, all records of the arrests would be expunged. The remaining claims were to be dismissed and all defendants other than the City were to be dismissed with prejudice. The offer was silent as to the City’s right to appeal. The district court conducted a hearing regarding the offer of judgment and expressed its view that the judgment, as constructed, might preclude an appeal of the declaratory-judgment. During this hearing, the City stated that it believed it could appeal the declaratory judgment; Blair disagreed. The district court then entered judgment pursuant to Rule 68. Id. at 312-13. Apparently beginning to doubt that the declaratory judgment was appealable under the terms of the Rule 68 judgment, the City moved the district court to modify or vacate the judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. It argued that there was a misunderstanding and mistake in the formation of the agreement: Blair believed that the judgment would preclude an appeal, while the City thought an appeal was allowed. The district court denied the motion. Id. at 313-17. II The City asks us to review the district court’s denial of the Rule 60(b) motion to vacate or modify the offer of judgment. Motions for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b) are committed to the sound discretion of the trial judge. Thompson v. Housing Authority, 782 F.2d 829, 832 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 98 L.Ed.2d 60 (1986). We will not reverse the decision absent an abuse of discretion. Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir.1991). The City fails to point out" }, { "docid": "18697003", "title": "", "text": "See 1 Restatement (Third) of the Foreign Relations Law of the United States § 471 n. 2 (1987) (“[ajrticle 5(j) of the [Vienna Convention] lists transmission of [legal] documents as a permissible consular function”). Nonetheless, the House Report did not consider the Vienna Convention to be an “applicable international convention on service of judicial documents” under § 1608. Thus, although the Consular Convention between the United States and the PRC was not in effect when the House Report was prepared, it likewise should not be construed as a “convention on service of judicial documents” under § 1608(b)(2). See Dellapenna, Suing Foreign Governments and Their Corporations, § 4.3, at 114 (1988) (“[a]t present the United States has ratified only one convention relating to service of process abroad — the Hague Convention”). Service of process therefore was proper under § 1608(b)(3)(B). III. Culpable Conduct BEB contends that the district court erred by not granting BEB’s motion to set aside default judgment under Fed.R.Civ.P. 60(b). A district court’s decision on a Rule 60(b) motion is reviewed for abuse of discretion. Thompson v. Housing Auth. of Los Angeles, 782 F.2d 829, 832 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986). This court has set forth three factors to consider in Rule 60(b) motions: “(1) whether the plaintiff will be prejudiced, (2) whether the defendant has a meritorious defense, and (3) whether culpable conduct of the defendant led to the default.” Falk v. Allen, 739 F.2d 461, 463 (9th Cir.1984). BEB contests the district court’s application of the culpable conduct factor. The district court relied on Meadows v. Dominican Republic, 817 F.2d 517 (9th Cir.), cert. denied, 484 U.S. 976, 108 S.Ct. 486, 487, 98 L.Ed.2d 485 (1987), to conclude that BEB’s conduct was not the result of excusable neglect. In Meadows, this court held that because the Dominican Republic knew the legal consequences, its failure to respond to a complaint constituted culpable conduct. Id. at 521-22. BEB cites Gregorian v. Izvestia, 871 F.2d 1515 (9th Cir.), cert. denied, — U.S. -, 110 S.Ct. 237, 107 L.Ed.2d 188 (1989)," }, { "docid": "23273204", "title": "", "text": "Heritage Life Ins. Co., 637 F.2d 1328, 1332 (9th Cir.1981). C. Post Judgment Motion On June 8, 1987, motions were filed requesting, inter alia, leave to file a late response to TWA’s motion to dismiss. A declaration of counsel accompanied the motion. Judge Conti denied the motion stating that “[a]t this late date, plaintiff cannot seriously contend she lacked an opportunity to respond to defendant’s motion.” ER 149 at 4. We review denials of motions under Fed.R.Civ.P. 60 for abuse of discretion. Thompson v. Housing Authority of the City of Los Angeles, 782 F.2d 829, 832 (9th Cir.), cert. denied, 479 U.S. 829, 107 S.Ct. 112, 93 L.Ed.2d 60 (1986). Appellants’ claim that Judge Conti abused his discretion is without merit. No aspect of appellants’ explanation for their neglect constitutes a valid reason or an adequate showing of excusable neglect for relief under Rule 60(b). Moreover, under Local Rule 220-1, the district court was under no obligation to hold a hearing on the motion. We find no abuse of discretion in the court’s denial of the 60(b) motion. D. Motion to Disqualify In addition to appellants’ motion for relief from judgment and for leave to file a late response, they also moved to disqualify Judge Conti pursuant to 28 U.S.C. §§ 144 and 455(b)(1). In accordance with § 144, an affidavit of prejudice was submitted asserting that Judge Conti had formed a “personal bias or prejudice” against plaintiff. ER 145. Judge Conti denied the motion for disqualification, finding that the motion lacked a legal basis in that the “alleged bias or prejudice did not arise from an extrajudicial source.” ER 149 at 3. Alternatively, the court found that “bias against plaintiff’s counsel may not qualify as prejudice against plaintiff for purposes of disqualification.” Id. Notwithstanding the alternative basis, we find that the district judge correctly rejected the motion and affidavit as legally insufficient. As with § 144, the provisions of § 455(a) & (b)(1) require recusal only if the bias or prejudice stems from an extrajudicial source and not from conduct or rulings made during the course of the proceeding." } ]

[ { "docid": "22129529", "title": "", "text": "Me. Justice Blatchfoed, after stating the case, delivered the opinion of the court. The principal contentions in this court on the part of the defendant are that, although Massachusetts, if an independent nation, could have enacted a statute like the one in question, which her own courts would have enforced and which other nations would have recognized, yet when-she became one of the United States, she surrendered to the general .government her right of control over the fisheries of the ocean, and transferred to it her rights over the waters adjacent to the coast and a part of the ocean; that, as by the Constitution, article 3, section 2, the judicial power of the United States is made to extend to all cases of admiralty and maritime jurisdiction, it is consistent only with that view that the rights in respect of fisheries should be regarded as national rights, and be enforced only in national courts; that the proprietary right of Massachusetts is confined to the body of the county ; that the offence committed by the defendant was committed outside of that territory, in a locality where legislative control did not rest upon title in the soil and waters, but upon rights of sovereignty inseparably connected with national character, and which were intrusted exclusively to enforcement in admiralty courts; that the Commonwealth has no jurisdiction upon the ocean within three miles of the shore; that it could not, by the statute in question, oust the United States of jurisdiction; that fishing upon the high seas is in its nature an integral part of national commerce, and its control and regulation c.re necessarily vested in Congress and not in the individual States; that Congress has manifested its purpose to take the regulation of coast fisheries, in the particulars covered by the Massachusetts statute in question, by the joint resolution of Congress of-February 9,1871, (16 Stat. 593,) establishing the Fish Commission, and by Title 51 of the Revised Statutes, entitled “ Regulation of Fisheries,” and by the act of February 28, 1887, c. 288, (24 Stat. 434,) relating to the mackerel fisheries," } ]

[ { "docid": "23695124", "title": "", "text": "the California decision from adopting the “Inland Water Line” in this case. Essentially the argument is that the Convention was not intended either to be the exclusive determinant of inland or territorial waters or to divest a nation of waters which it had long considered subject to its sole jurisdiction. By the long-standing, continuous, and unopposed exercise of jurisdiction to regulate navigation on waters within the “Inland Water Line,” the United States is said to have established them as its inland waters under traditional principles of international law. Alternatively, Louisiana suggests that, even assuming the exclusivity of the Convention on the Territorial Sea and the Contiguous Zone, the “Inland Water Line,” by virtue of this assertion of sovereignty, has created “historic bays” within the exception of Article 7 of the Convention. We have concluded, however, that nothing in either the enactment of the 1895 Act or its administration indicates that the United States has ever treated that line as a territorial boundary. Under generally accepted principles of international law, the navigable sea is divided into three zones, distinguished by the nature of the control which the contiguous nation can exercise over them. Nearest to the nation’s shores are its inland, or internal waters. These are subject to the complete sovereignty of the nation, as much as if they were a part of its land territory, and the coastal nation has the privilege even to exclude foreign vessels altogether. Beyond the inland waters, and measured from their seaward edge, is a belt known as the marginal, or territorial, sea. Within it the coastal nation may exercise extensive control but cannot deny the right of innocent passage to foreign nations. Outside the territorial sea are the high seas, which are international waters not subject to the dominion of any single nation. Whether particular waters are inland has depended on historical as well as geographical factors. Certain shoreline configurations have been deemed to confine bodies of water, such as bays, which are necessarily inland. But it has also been recognized that other areas of water closely connected to the shore, although they do" }, { "docid": "22316076", "title": "", "text": "for determining inland waters claimed against other nations is one that rests with the Federal Government, and not with the individual States. California relies upon Manchester v. Massachusetts, 139 U. S. 240, for the proposition that a State may draw its boundaries as it pleases within limits recognized by the law of nations regardless of the position taken by the United States. Although some dicta in the case may be read to support that view, we do not so interpret the opinion. The case involved neither an expansion of our traditional international boundary nor opposition by the United States to the position taken by the State. 2. Twenty-jour-mile Closing Rule. — The Convention recognizes, and it is the present United States position, that a 24-mile closing rule together with the semicircle test should be used for classifying bays in the United States. Applying these tests to the segments of Cali fornia’s coast here in dispute, it appears that Monterey Bay is inland water and that none of the other coastal segments in dispute fulfill these aspects of the Convention test. We so hold. California asserts that the Santa Barbara Channel may be considered a “fictitious bay” because the openings at both ends of the channel and between the islands are each less than 24 miles. The United States argues that the channel is no bay at all; that it is a strait which serves as a useful route of communication between two areas of open sea and as such may not be classified as inland waters. By way of analogy California directs our attention to the Breton and Chandeleur Sounds off Louisiana which the United States claims as inland waters, United States v. Louisiana, 363 U. S. 1, 66-67, n. 108. Each of these analogies only serves to point up the validity of the United States’ argument that the Santa Barbara Channel should not be treated as a bay. The Breton Sound is a cul de sac. The Chandeleur Sound, if considered separately from the Breton Sound which it joins, leads only to the Breton Sound. Neither is used as" }, { "docid": "22316069", "title": "", "text": "the Court did not particularize the definition. It was that task which subsequently led to the appointment of the Special Master. The Special Master found that there was no internationally accepted definition for inland waters and decided, in those circumstances, that it was the position which the United States took on the question in the conduct of its foreign affairs which should be controlling. He considered the relevant date on which to determine our foreign policy position to be the date of the California decree, October 27, 1947. He therefore rejected the assertion that letters from the State Department written in 1951 and 1952 declaring the then present policy of the United States were conclusive on the question before him. At the same time that decision required the Special Master to consider a great many foreign policy materials dating back to 1793 in an attempt to discern a consistent thread of United States policy on the definition of inland waters. He ultimately decided that as of 1947 the United States had taken the position that a bay was inland water only if a closing line could be drawn across its mouth less than 10 miles long enclosing a sufficient water area to satisfy the Boggs formula. Since the filing of the Special Master’s Report the policy of the United States has changed significantly. Indeed it may now be said that there is a settled international rule defining inland waters. On March 24, 1961, the United States ratified the Convention on the Territorial Sea and the Contiguous Zone (T. I. A. S. No. 5639) and on September 10, 1964, when the requisite number of nations had ratified it, the Convention went into force. For nations which do not use a straight-base-line method to define inland waters (see United Kingdom v. Norway, [1951] I. C. J. Rep. 116), the Convention permits a 24-mile maximum closing line for bays and a “semicircle” test for testing the sufficiency of the water area enclosed. The semicircle test requires that a bay must comprise at least as much water area within its closing line as would" }, { "docid": "22316126", "title": "", "text": "the problem of deciding what were inland waters and what were not, and of drawing an exact demarcation between the inland waters and a three-mile strip of marginal sea, this Court said that “there is no reason why, after determining in general who owns the three-mile belt here involved, the Court might not later, if necessary, have more detailed hearings in order to determine' with greater definiteness particular segments of the boundary.” 332 U. S., at 26. It was not long before such hearings did become necessary, for the United States and California found themselves in sharp disagreement as to what the term “inland waters” meant when applied to specific segments of the California coast. Both parties assumed at that time, long before the Submerged Lands Act was passed, that the term was to be given a content derived from the usage of international law and the United States’ foreign relations, since the California decision in upholding the claim of the United States to land under the three-mile belt of marginal sea had relied on the necessity of federal protection and control of the territorial seas as an incident of national sovereignty. But the doctrines of international law were so confused and contradictory as to exactly what measurements a bay must have to be inland water, and under what conditions a channel between islands and the mainland was inland water, that both sides were able to find precedents supporting them. This Court therefore submitted the case to a Special Master to make findings of fact and recommendations of law as to whether each of seven segments of submerged land off the mainland of California, the same seven now in dispute, should be treated as “inland waters” within the meaning of the California opinion and decree, and therefore the property of the State. 342 U. S. 891. On October 14, 1952, the Master filed his Report, 344 U. S. 872, in which he said he assumed that the test of whether the land in dispute belonged to California depended on whether it was inland water “by (1) any customary, generally recognized" }, { "docid": "11264718", "title": "", "text": "Fishing and Conservation of the Living Resources of the High Seas, Art. 6, H 1, [1966] 1 U. S. T. 138, 141, T. I. A. S. 5969. Even a casual examination of the facts relied upon by the District Court in this case reveals that the geographic scope of the fish and wildlife enforcement efforts was determined primarily, if not exclusively, by the needs of effective management of the fish and game population involved. Thus, for example, the Gharrett-Scudder line, which the District Court considered “a classic demonstration of the assertion by the United States government of its claim to sovereignty over the whole of Cook Inlet,” Pet. for Cert. 37a, was drawn almost solely with reference to the needs of the coastal salmon net fisheries and was never intended to depict the boundaries of the territorial waters of the United States. Indeed, the very method of drawing the fishery boundaries by use of straight baselines conflicted with this country’s traditional policy of measuring its territorial waters by the sinuosity of the coast. See United States v. California, 381 U. S., at 167-169. Even if we could agree that the boundaries selected for purposes of enforcing fish and wildlife regulations coincided with an intended assertion of territorial sovereignty over Cook Inlet as inland waters, we still would disagree with the District Court’s conclusion that historic title was established in the territorial period. The court found that the third essential element of historic title, acquiescence by foreign nations, was satisfied by the fail ure of any foreign nation to protest. Scholarly comment is divided over whether the mere absence of opposition suffices to establish title. See Juridical Regime of Historic Waters, Including Historic Bays, 2 Yearbook of the International Law Commission, 1962, pp. 1, 16-19 (U. N. Doc. A/CN.4/143). The Court previously has noted this division but has taken no position in the debate. See Louisiana Boundary Case, 394 U. S., at 23-24, n. 27. In this case, we feel that something more than the mere failure to object must be shown. The failure of other countries to protest is meaningless" }, { "docid": "13952258", "title": "", "text": "to include “fringe of islands along the coast in [its] immediate vicinity” to the coast line, are permissible under the Convention to participating nations, but not to States of the United States when contrary to the expressed opposition of the United States itself. (2) Under the twenty-four mile closing rule, Monterey Bay becomes inland waters, but the Santa Barbara Channel does not, despite the location of those islands, a distance of less than twenty-four miles at both ends of the channel between the coast line and the islands (i. e., between Point Concepcion and the northwestern tip of San Miguel and between the southern tip of San Clemente and Point Loma). (3) The “Historic bay” theory, under which both state and federal courts have previously found or been aided in finding that Monterey, Santa Monica, and San Pedro Bays have boundaries three miles outside a line from point to point closing the bays (because falling within Art. XII of the 1849 California Constitution). (4) “Roadsteads” are not inland waters. (5) The line of “Ordinary Low Water” as used in the Convention and the Submerged Lands Act was lower low water line, or lower low tide average, not the average of all low tides. (6) “Artificial accretions” can increase the state's land and extend the original three mile limit seaward, when done without the United States exercising its power over navigable waters to prevent it. With these Supreme Court rulings in mind, we turn to the instant case. Appellant urges twelve errors. We summarize these as follows: (1) The boundaries of a state are determined by Congress, not international law. Congress, by the Hawaiian Statehood Act, established the “channels” be tween the Hawaiian Islands as being within the boundaries of the State of Hawaii. And even if we assume the enjoined flights pass over international waters subject to no sovereignty, such waters are not “a place” within the statute defining “interstate air transportation.” (49 U.S.C. § 1301(21) (a).) (2) The federal courts (a) should have abstained from exercising jurisdiction; (b) the federal courts had no jurisdiction; and (c) the State of" }, { "docid": "22316074", "title": "", "text": "a view might unduly inhibit the United States in the conduct of its foreign relations by making its ownership of submerged lands vis-á-vis the States continually dependent upon the position it takes with foreign nations. “Freezing” the meaning of “inland waters” in terms of the Convention definition largely avoids this, and also serves to fulfill the requirements of definiteness and stability which should attend any congressional grant of property rights belonging to the United States. IV. Subsidiary Issues. Once it is decided that the definitions of the Convention on the Territorial Sea and the Contiguous Zone apply, many of the subsidiary issues before us fall into place. 1. Straight Base Lines. — California argues that because the Convention permits a nation to use the straight-baseline method for determining its seaward boundaries if its “coast line is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity,” California is therefore free to use such boundary lines across the openings of its bays and around its islands. We agree with the United States that the Convention rec ognizes the validity of straight base lines used by other countries, Norway for instance, and would permit the United States to use such base lines if it chose, but that California may not use such base lines to extend our international boundaries beyond their traditional international limits against the expressed opposition of the United States. The national responsibility for conducting our international relations obviously must be accommodated with the legitimate interests of the States in the territory over which they are sovereign. Thus a contraction of a State’s recognized territory imposed by the Federal Government in the name of foreign policy would be highly questionable. But an extension of state sovereignty to an international area by claiming it as inland water would necessarily also extend national sovereignty, and unless the Federal Government’s responsibility for questions of external sovereignty is hollow, it must have the power to prevent States from so enlarging themselves. We conclude that the choice under the Convention to use the straight-base-line method" }, { "docid": "19333145", "title": "", "text": "did not argue that the United States had ever specifically asserted, in its dealings with foreign nations, that the waters of Stefansson Sound are inland waters. Rather, Alaska attempted to identify a general but consistent “10-mile rule” invoked by the United States in its domestic and international affairs. If applied to Alaska’s Arctic Coast, the State argued, this rule would require treating the waters of Ste-fansson Sound as inland waters. The Master examined the boundary delimitation practices of the United States and concluded that the United States did not have a well-established rule for treating waters between the mainland and fringing islands as inland waters. The Master recognized that, in the Alabama and Mississippi Boundary Case, we suggested that between 1903 and 1961 the United States had “enclosed] as inland waters those areas between the mainland and off-lying islands that were so closely grouped that no entrance exceeded 10 geographical miles.” 470 U. S., at 106-107. Observing that this statement was not “strictly necessary” to the decision in the Alabama and Mississippi Boundary Case, the Master declined to rely on it here. The Master therefore concluded that, for purposes of measuring Alaska’s submerged lands, the State’s coastline should correspond to a normal baseline under Article 3 of the Convention. For the reasons discussed below, we find no error in the Master’s approach. A Under the Convention, a nation’s past boundary delimitation practice is relevant in a narrow context: specifically, when a nation claims that certain waters are “historic” inland waters under Article 7(6) of the Convention. If certain geographic criteria are met, Article 7(4) of the Convention permits a nation to draw a “closing line” across the mouth of a bay and to measure its territorial sea outward from that line. Waters enclosed by the line are considered internal waters. Article 7(6) also permits a nation to enclose “historic” bays, even if those waters do not satisfy the geographic criteria of Article 7(4). For a body of water to qualify as a historic bay, the coastal nation “must have effectively exercised sovereignty over the area continuously during a time sufficient" }, { "docid": "23695164", "title": "", "text": "“the choice under the Convention to use the straight-base-line method for determining inland waters claimed against other nations is one that rests with the Federal Government, and not with the individual States.” Since the United States asserts that it has not drawn and does not want to draw straight baselines along the Louisiana coast, that disclaimer would, under the California decision, be conclusive of the matter. Louisiana argues, however, that because the Louisiana coast is so perfectly suited to the straight baseline method, and because it is clear that the United States would employ it in the conduct of its international affairs were it not for this lawsuit, the Court should reconsider its holding in California and itself draw appropriate baselines. While we agree that the straight baseline method was designed for precisely such coasts as the Mississippi River Delta area, we adhere to the position that the selection of this optional method of establishing bound aries should be left to the branches of Government responsible for the formulation and implementation of foreign policy. It would be inappropriate for this Court to review or overturn the considered decision of the United States, albeit partially motivated by a domestic concern, not to extend its borders to the furthest extent consonant with international law. 7. Historic inland waters. Louisiana argues that all the waters of the Mississippi River Delta, and East Bay in particular, are “so-called ‘historic’ bays” within the meaning of Article 7 (6), and that they are therefore inland waters notwithstanding their failure to meet the geographical requirements of Article 7 and the United States’ refusal to draw straight baselines. Historic bays are not defined in the Convention, and the term therefore derives its content from general principles of international law. As the absence of a definition indicates, there is no universal accord on the exact meaning of historic waters. There is substantial agreement, however, on the outlines of the doctrine and on the type of showing which a coastal nation must make in order to establish a claim to historic inland waters. But because the concept of historic waters" }, { "docid": "23695243", "title": "", "text": "prejudice of any party hereto Moreover, we note that the concession did not include as inland waters the area Louisiana designates as “Isle au Breton Bay.” See n. 87, supra. It might be argued that the United States’ concession reflected its firm and continuing international policy to enclose inland waters within island fringes. It is not contended at this time, however, that the United States has taken that posture in its international relations to such an extent that it could be said to have, in effect, utilized the straight baseline approach sanctioned by Article 4 of the Convention. If that had been the consistent official international stance of the Government, it arguably could not abandon that stance solely to gain advantage in a lawsuit to the detriment of Louisiana. Cf. United States v. California, 381 U. S. 139, 168: “[A] contraction of a State’s recognized territory imposed by the Federal Government in the name of foreign policy would be highly questionable.” We do not intend to preclude Louisiana from arguing before the Special Master that, until this stage of the lawsuit, the United States had actually drawn its international boundaries in accordance with the principles and methods embodied in Article 4 of the Convention on the Territorial Sea and the Contiguous Zone. See n. 72, supra. Louisiana also suggests that the indentations between the passes of the Mississippi River Delta are part of the river mouth and therefore inland waters under Article 13 of the Convention: “If a river flows directly into the sea, the baseline shall be a straight line across the mouth of the river between points on the low-tide line of its banks.” The Article obviously does not encompass indentations between arms of land formed by the river but not containing it. The United States argues that the Convention recognizes only historic bays and not other kinds of inland water bodies. We do not pass on this contention except to note that, by the terms of the Convention, historic bays need not conform to the normal geographic tests and therefore need not be true bays. How unlike" }, { "docid": "22316070", "title": "", "text": "a bay was inland water only if a closing line could be drawn across its mouth less than 10 miles long enclosing a sufficient water area to satisfy the Boggs formula. Since the filing of the Special Master’s Report the policy of the United States has changed significantly. Indeed it may now be said that there is a settled international rule defining inland waters. On March 24, 1961, the United States ratified the Convention on the Territorial Sea and the Contiguous Zone (T. I. A. S. No. 5639) and on September 10, 1964, when the requisite number of nations had ratified it, the Convention went into force. For nations which do not use a straight-base-line method to define inland waters (see United Kingdom v. Norway, [1951] I. C. J. Rep. 116), the Convention permits a 24-mile maximum closing line for bays and a “semicircle” test for testing the sufficiency of the water area enclosed. The semicircle test requires that a bay must comprise at least as much water area within its closing line as would be contained in a semicircle with a diameter equal to the length of the closing line. Unquestionably the 24-mile closing line together with the semicircle test now represents the position of the United States. The United States contends that we must ignore the Convention on the Territorial Sea and the Contiguous Zone in performing our duty of giving content to “inland waters” as used in the Submerged Lands Act, and must restrict ourselves to determining what our decision would have been had the question been presented to us for decision on May 22, 1953, the date of enactment. At that time there was no international accord on any definition of inland waters, and the best evidence (although strenuously contested by California) of the position of the United States was the letters of the State Department which the Special Master refused to treat as conclusive. We do not think that the Submerged Lands Act has so restricted us. Congress, in passing the Act, left the responsibility for defining inland waters to this Court. We think that" }, { "docid": "11264704", "title": "", "text": "litigation and because the case presented a substantial question concerning the proof necessary to establish a body of water as a historic bay. 419 U. S. 1045 (1974). II State sovereignty over submerged lands rests on the Submerged Lands Act of 1953, 67 Stat. 29, 43 U. S. C. §§ 1301-1315. By this Act, Congress effectively confirmed to the States the ownership of submerged lands within three miles of their coastlines. See United States v. Maine, 420 U. S. 515 (1975). “Coast line” was defined in terms not only of land but, as well, of “the seaward limit of inland waters.” The term “inland waters” was left undefined. In United States v. California, 381 U. S. 139, 161-167 (1965), the Court concluded that the definitions provided in the Convention on the Territorial Sea and the Contiguous Zone, [1964] 2 U. S. T. 1606, T. I. A. S. No. 5639, should be adopted for purposes of the Submerged Lands Act. See also United States v. Louisiana (Louisiana Boundary Case), 394 U. S. 11, 35 (1969). Under Art. 7 of the Convention, and particularly ¶¶ 5 and 6 thereof, a bay with natural entrance points separated by more than 24 miles is considered as inland water only if it is a “historic” bay. Since the distance between the natural entrance points to Cook Inlet is greatly in excess of 24 miles, the parties agree that Alaska must demonstrate that the inlet is a historic bay in order successfully to claim sovereignty over its lower waters and the land beneath those waters. The term “historic bay” is not defined in the Convention. The Court, however, has stated that in order to establish that a body of water is a historic bay, a coastal nation must have “traditionally asserted and maintained dominion with the acquiescence of foreign nations.” United States v. California, 381 U. S., at 172. Furthermore, the Court appears to have accepted the general view that at least three factors are significant in the determination of historic bay status: (1) the claiming nation must have exercised authority over the area; (2) that" }, { "docid": "23695211", "title": "", "text": "of that length.” The straight 24-mile line selected by Louisiana runs from Cami-nada Pass to Empire Canal, just east of Bastian Bay, and we can see no valid objection to that line. The United States argues that Article 7 (5) permits the drawing inside an oversize bay of only one 24-mile closing line (or perhaps several lines totaling 24 miles). Yet Louisiana has, in addition to drawing the 24-mile line from Caminada Pass to Empire Canal, also drawn closing lines across other indentations within “Ascension Bay,” such as West Bay, which qualify independently as inland waters. The United States’ position is that the tributary bays cannot be taken into account in computing the area of the larger indentation for purposes of the semicircle test but then disregarded in measuring the parts of the bay to be enclosed by the 24-mile line. We find nothing in the Convention or its history to support this contention. Article 7 (5) mandates that a straight 24-mile baseline shall be drawn within an oversize bay so as to include the greatest area of water. It does not follow from the fact that this additional method of delimiting inland waters in an oversize bay is available, that smaller bays within the oversize bay but outside the straight 24-mile baseline lose their status as inland waters. If it is determined that “Ascension Bay” does not qualify as a “well-marked indentation” containing “landlocked waters,” and that a straight baseline therefore cannot be drawn within it from Caminada Pass to Empire Canal, the question will be presented whether the beach erosion jetties on Grande Isle are part of the coast within Article 8 of the Convention. See supra, at 36. We hold that they are. The United States argues that Article 8 is limited to structures which are “integral parts of the harbor system” and that there is no harbor between Grande Isle and the jetties. While some early discussion of the subject by the International Law Commission tends to support the United States’ position that these jetties are not encompassed by Article 8, see [1954] 1 Y. B." }, { "docid": "19333146", "title": "", "text": "Master declined to rely on it here. The Master therefore concluded that, for purposes of measuring Alaska’s submerged lands, the State’s coastline should correspond to a normal baseline under Article 3 of the Convention. For the reasons discussed below, we find no error in the Master’s approach. A Under the Convention, a nation’s past boundary delimitation practice is relevant in a narrow context: specifically, when a nation claims that certain waters are “historic” inland waters under Article 7(6) of the Convention. If certain geographic criteria are met, Article 7(4) of the Convention permits a nation to draw a “closing line” across the mouth of a bay and to measure its territorial sea outward from that line. Waters enclosed by the line are considered internal waters. Article 7(6) also permits a nation to enclose “historic” bays, even if those waters do not satisfy the geographic criteria of Article 7(4). For a body of water to qualify as a historic bay, the coastal nation “must have effectively exercised sovereignty over the area continuously during a time sufficient to create a usage and have done so under the general toleration” of the community of nations. Id., at 102 (citing Juridical Regime of Historic Waters, Including Historic Bays 56, U. N. Doc. A/CN.4/143 (1962)) (internal quotation marks omitted). Accordingly, where a State within the United States wishes to claim submerged lands based on an area’s status as historic inland waters, the State must demonstrate that the United States: (1) exercises authority over the area; (2) has done so continuously; and (3) has done so with the acquiescence of foreign nations. See Alabama and Mississippi Boundary Case, supra, at 101-102. Recognizing these strict evidentiary requirements, Alaska does not contend that the waters of Stefansson Sound are historic inland waters. Alaska does not purport to show any specific assertion by the United States that the waters of Stefansson Sound are inland waters. Rather, Alaska argues that, at the time it was admitted to the Union, the United States had a general, publicly stated policy of enclosing as inland waters areas between the mainland and closely-grouped fringing" }, { "docid": "22316071", "title": "", "text": "be contained in a semicircle with a diameter equal to the length of the closing line. Unquestionably the 24-mile closing line together with the semicircle test now represents the position of the United States. The United States contends that we must ignore the Convention on the Territorial Sea and the Contiguous Zone in performing our duty of giving content to “inland waters” as used in the Submerged Lands Act, and must restrict ourselves to determining what our decision would have been had the question been presented to us for decision on May 22, 1953, the date of enactment. At that time there was no international accord on any definition of inland waters, and the best evidence (although strenuously contested by California) of the position of the United States was the letters of the State Department which the Special Master refused to treat as conclusive. We do not think that the Submerged Lands Act has so restricted us. Congress, in passing the Act, left the responsibility for defining inland waters to this Court. We think that it did not tie our hands at the same time. Had Congress wished us simply to rubber-stamp the statements of the State Department as to its policy in 1953, it could readily have done so itself. It is our opinion that we best fill our responsibility of giving content to the words which Congress employed by adopting the best and most workable definitions available. The Convention on the Territorial Sea and the Contiguous Zone, approved by the Senate and ratified by the President, provides such definitions. We adopt them for purposes of the Submerged Lands Act. This establishes a single coastline for both the administration of the Submerged Lands Act and the conduct of our future international relations (barring an unexpected change in the rules established by the Convention). Furthermore the comprehensiveness of the Convention provides answers to many of the lesser problems related to coastlines which, absent the Convention, would be most troublesome. California argues, alternatively to its claim that “inland waters” embraces all ocean areas lying within a State’s historic seaward boundaries, that" }, { "docid": "13952257", "title": "", "text": "date of the California 1947 decree, i. e., October 27, 1947. That position, he found, was that a bay was inland water only if a closing line could be drawn across its mouth less than ten miles long enclosing a sufficient water area to satisfy the so-called Boggs formula, as to the sufficiency of the depth of bays. (Cf. 381 U.S. at 163 n. 27, 85 S.Ct. 1401.) But the Convention permits use of a different formula: a straight baseline method— with a twenty-four mile maximum closing line for bays and a “semi-circle” test for testing the sufficiency of the water area enclosed. The semi-circle test and the twenty-four mile closing line “ [unquestionably * * * now represents the position of the United States.” (381 U.S. at 164, 85 S.Ct. at 1415.) And this position and the 1964 Supreme Court opinion “freezes” the meaning of “inland waters” in terms of the Convention. The “subsidiary issues” decided in United States v. State of California, supra, were: (1) That straight base lines (as used by Norway) to include “fringe of islands along the coast in [its] immediate vicinity” to the coast line, are permissible under the Convention to participating nations, but not to States of the United States when contrary to the expressed opposition of the United States itself. (2) Under the twenty-four mile closing rule, Monterey Bay becomes inland waters, but the Santa Barbara Channel does not, despite the location of those islands, a distance of less than twenty-four miles at both ends of the channel between the coast line and the islands (i. e., between Point Concepcion and the northwestern tip of San Miguel and between the southern tip of San Clemente and Point Loma). (3) The “Historic bay” theory, under which both state and federal courts have previously found or been aided in finding that Monterey, Santa Monica, and San Pedro Bays have boundaries three miles outside a line from point to point closing the bays (because falling within Art. XII of the 1849 California Constitution). (4) “Roadsteads” are not inland waters. (5) The line of “Ordinary Low" }, { "docid": "22316079", "title": "", "text": "as inland water and opposes any such claim now. The channel has not been regarded as a bay either historically or geographically. In these circumstances, as with the drawing of straight base lines, we hold that if the United States does not choose to employ the concept of a “fictitious bay” in order to extend our international boundaries around the islands framing Santa Barbara Channel, it cannot be forced to do so by California. It is, therefore, unnecessary to reinstitute proceedings before a master to determine the factual question of whether the passageway is internationally useful. 3. Historic Inland Waters. — By the terms of the Convention the 24-mile closing rule does not apply to so-called “historic” bays. Essentially these are bays over which a coastal nation has traditionally asserted and maintained dominion with the acquiescence of foreign nations. California claims that virtually all the waters here in dispute are historic inland waters as the term is internationally understood. It relies primarily on an interpretation of its State Constitution to the effect that the state boundaries run three miles outside the islands and bays, plus several court decisions which so interpret it as applied to Monterey, Santa Monica, and San Pedro Bays The United States counters that, as with straight base lines, California can maintain no claim to historic inland waters unless the claim is endorsed by the United States. The Special Master found it unnecessary to decide that question because, on the evidence before him, he concluded that California had not traditionally exercised dominion over any of the claimed waters. Since the 24-mile rule includes Monterey Bay, we do not consider it here. As to Santa Monica Bay, San Pedro Bay, and the other water areas in dispute, we agree with the Special Master that they are not historic inland waters of the United States. California contends that two studies of the criteria for determining historic waters have been made since the Special Master filed his report which show that he applied the wrong standards, thus vitiating his conclusions. In particular it is said that the Special Master erroneously" }, { "docid": "23695242", "title": "", "text": "islands as well. We do not intend, however, in passing on these motions, to settle the location of the coastline of Louisiana or that of any other State.” (Emphasis supplied.) As we stressed in that case, this Court has placed no imprimatur on that position. Nor do we think the United States is bound by it. Louisiana has not relied to its detriment on the concession, which appears to have been made primarily for purposes of reaching agreement on the leasing of the submerged lands pending a final ruling on their ownership. The Interim Agreement of 1956 specifically recognized that neither party would be bound by its positions: “The submerged lands in the Gulf of Mexico are divided for the purposes hereof into four zones as shown on the plat annexed hereto as Exhibit 'A,’ which reflects as a base line the so-called ‘Chapman-Line.’ No inference or conclusion of fact or law from the said use of the so-called ‘Chapman-Line’ or any other boundary of said zones is to be drawn to the benefit or prejudice of any party hereto Moreover, we note that the concession did not include as inland waters the area Louisiana designates as “Isle au Breton Bay.” See n. 87, supra. It might be argued that the United States’ concession reflected its firm and continuing international policy to enclose inland waters within island fringes. It is not contended at this time, however, that the United States has taken that posture in its international relations to such an extent that it could be said to have, in effect, utilized the straight baseline approach sanctioned by Article 4 of the Convention. If that had been the consistent official international stance of the Government, it arguably could not abandon that stance solely to gain advantage in a lawsuit to the detriment of Louisiana. Cf. United States v. California, 381 U. S. 139, 168: “[A] contraction of a State’s recognized territory imposed by the Federal Government in the name of foreign policy would be highly questionable.” We do not intend to preclude Louisiana from arguing before the Special Master that," }, { "docid": "22316075", "title": "", "text": "We agree with the United States that the Convention rec ognizes the validity of straight base lines used by other countries, Norway for instance, and would permit the United States to use such base lines if it chose, but that California may not use such base lines to extend our international boundaries beyond their traditional international limits against the expressed opposition of the United States. The national responsibility for conducting our international relations obviously must be accommodated with the legitimate interests of the States in the territory over which they are sovereign. Thus a contraction of a State’s recognized territory imposed by the Federal Government in the name of foreign policy would be highly questionable. But an extension of state sovereignty to an international area by claiming it as inland water would necessarily also extend national sovereignty, and unless the Federal Government’s responsibility for questions of external sovereignty is hollow, it must have the power to prevent States from so enlarging themselves. We conclude that the choice under the Convention to use the straight-base-line method for determining inland waters claimed against other nations is one that rests with the Federal Government, and not with the individual States. California relies upon Manchester v. Massachusetts, 139 U. S. 240, for the proposition that a State may draw its boundaries as it pleases within limits recognized by the law of nations regardless of the position taken by the United States. Although some dicta in the case may be read to support that view, we do not so interpret the opinion. The case involved neither an expansion of our traditional international boundary nor opposition by the United States to the position taken by the State. 2. Twenty-jour-mile Closing Rule. — The Convention recognizes, and it is the present United States position, that a 24-mile closing rule together with the semicircle test should be used for classifying bays in the United States. Applying these tests to the segments of Cali fornia’s coast here in dispute, it appears that Monterey Bay is inland water and that none of the other coastal segments in dispute fulfill these" }, { "docid": "22819385", "title": "", "text": "boundary, that Act recited that Louisiana was “bounded by the said gulf [of Mexico] . . . including all islands within three leagues of the coast.” In 1938 Louisiana by statute declared its southern boundary to be twenty-seven marine miles from the shore line. We think United States v. California, 332 U. S. 19, controls this case and that there must be a decree for the complainant. We lay aside such cases as Toomer v. Witsell, 334 U. S. 385, 393, where a State’s regulation of coastal waters below the low-water mark collides with the interests of a person not acting on behalf of or under the authority of the United States. The question here is not the power of a State to use the marginal sea or to regulate its use in absence of a conflicting federal policy; it is the power of a State to deny the paramount authority which the United States seeks to assert over the area in question. We also put to one side New Orleans v. United States, 10 Pet. 662, holding that title to or dominion over certain lots and vacant land along the river in the city of New Orleans did not pass to the United States under the treaty of cession but remained in the city. Such cases, like those involving ownership of the land under the inland waters (see, for example, Pollard’s Lessee v. Hagan, 3 How. 212), are irrelevant here. As we pointed out in United States v. California, the issue in this class of litigation does not turn on title or ownership in the conventional sense. California, like the thirteen original colonies, never acquired ownership in the marginal sea. The claim to our three-mile belt was first asserted by the national government. Protection and control of the area are indeed functions of national external sovereignty. 332 U. S. pp. 31-34. The marginal sea is a national, not a state concern. National interests, national responsibilities, national concerns are involved. The problems of commerce, national defense, relations with other powers, war and peace focus there. National rights must therefore be" } ]

[ { "docid": "6786642", "title": "", "text": "arising out of the sale by her of said automobile and the exemption thereon aforesaid.” The Referee in Bankruptcy has certified the following question: “Did the Referee err, upon the evidence heard by him, in ordering the Trustee to pay over to Denver Public Schools Credit Union $300.00 of the proceeds of the sale by the Trustee of an automobile upon which said Credit Union held an unrecorded chattel mortgage given it prior to bankruptcy by the bankrupt?” The first matter which this Court must determine is whether it should adjudicate the claims asserted in the proceeds from the sale of the exempt property or direct the creditor to seek an adjudication in the State Courts of rights to the fund. It appears that the Colorado State Supreme Court has never passed on the question in issue. Both the bankrupt and claimant have asked this Court to determine the matter. Because of the relatively small amount involved here ($300.00) and the desirability of having the Bankruptcy Court administer the entirety of the bankrupt’s assets, including the proceeds realized from the sale of the exempt property, this Court will endeavor to determine what the applicable substantive law of the state would be. See 1 Collier on Bankruptcy Section 6.20. The respondent credit union contends that CRS 77-13-3 refers only to attachment and execution wherein a purchase money situation is required to defeat an exemption. From this point it is reasoned that an exemption cannot be claimed in mortgaged property whether a purchase money mortgage was involved or not. In support of this position, counsel for the claimant union seems to interpret Weil v. Nevitt, 18 Colo. 10, 31 P. 487 (1892), as indicating that a borrower loses his claim to exemption whenever he executes a chattel mortgage covering exempt property even though the encumbrance was not executed in a true purchase money transaction. Next, the credit union cites Charnesky v. Urban, 245 Wis. 268, 14 N.W.2d 161 (1944), and Gylling v. Kjergaard, 8 Cir., 1923, 293 F. 676, for the proposition that a mortgagee may recover from the proceeds of mortgaged" } ]

[ { "docid": "362163", "title": "", "text": "burden on creditors engaged in future advances financing, it is not the responsibility of this court to second guess the legislative intent in providing the present procedure: To the extent this presents a dilemma it is political, not judicial. The legislature has provided for the privilege of perfecting security interests ... Clearly that body is entitled to prescribe the conditions precedent that must be met to obtain legislatively conferred privileges. To obtain the benefits, creditors must bear the burdens and pay the required tax. American City Bank v. Western Auto Supply Co., 631 S.W.2d at 425. For all these reasons, the trustee prevails in his contest with the bank. II. THE DEBTORS’ EXEMPTION CLAIM The debtors may not claim an exemption in property recovered by the trustee through avoidance and preservation of a creditor’s unperfected security interest. Under 11 U.S.C.A. § 551 (West 1979) the trustee may preserve for the benefit of the estate any transfer avoided under § 544: Any transfer avoided under section 522, 544, 545, 547, 548, 549, or 724(a) of this title, or any lien void under section 506(d) of this title, is preserved for the benefit of the estate but only with respect to property of the estate. This court has previously noted that: A trustee may bring an unperfected secured creditor’s interest into the estate pursuant to 11 U.S.C. ... [§ 551] after having successfully pursued his rights under 11 U.S.C. § 544(a), but there is a provision which specifically prohibits a debtor from exempting that interest out of the estate. 11 U.S.C. § 522(g). In re Morgan, 6 B.R. 701, 703 (Bkrtcy.M.D.Tenn.1980). Because the trustee may preserve the secured (but unperfected) interest of the Bank for the benefit of the estate, the debtor does not possess any exemption right in the sale proceeds recovered by the trustee. Accordingly, the trustee is entitled to the sale proceeds and interest held in escrow. An appropriate order will be entered. . We have addressed the enforceability of such clauses in In re Bates, 35 B.R. 475, 478 (Bkrtcy.M.D.Tenn.1983) and Third National Bank v. Johnson, 9 B.R." }, { "docid": "1150385", "title": "", "text": "MEMORANDUM OF OPINION CONCERNING DEBTORS’ MOTION TO AVOID LIENS JOHN C. AKARD, Bankruptcy Judge. Daniel Weaver and Beverly Weaver (Debtors) seek to set aside liens held by ITT Financial Services (ITT) on their exempt property. FACTS The facts of this case are not disputed. On February 11, 1986, the Debtors borrowed $2,512.50 from ITT. The projected finance charge was $733.20. As a condition for lending money to the Debtors, ITT required and received a security interest in various property of the Debtors. However, ITT did not perfect its security interest. The validity of this security interest as to the Debtors is not disputed. On June 18, 1986, the Debtors filed a voluntary Chapter 7 Bankruptcy Petition. The Debtors elected the Federal exemptions under § 522(d). , At the time of filing, an outstanding loan balance of approximately $2,411.00 remained. This amount exceeds the value of the property subject to the security interest. On August 27, 1986, the Debtors filed a Motion to Avoid ITT’s Lien and on November 26,1986, filed an Amended Motion. ISSUES The two issues presented are: 1. ITT does not dispute the power of the Trustee to avoid an unperfected lien; but where the Trustee-in-Bankruptcy (Trustee) chooses to take no action to avoid an unperfected, nonpos-sessory, nonpurchase-money lien, can the Debtor utilize the Trustee’s power to avoid the lien? 2. Are firearms and mini-bikes claimed as exempt by the Debtors considered “household goods or furnishings” for lien avoidance purposes under § 522(f)? DISCUSSION The three applicable sections of the Bankruptcy Code empowering debtors and/or trustees to avoid liens are §§ 544, 506 and 522. Section 544 The Trustee is given the powers of a judicial lien creditor, an attaching creditor, and a bona fide purchaser under § 544(a) which reads as follows: (a) The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by— (1) a creditor that" }, { "docid": "1170425", "title": "", "text": "equitable process or proceeding.” 11 U.S.C. § 101(27). Section 522(d)(1) gives each debtor in a joint case a $7500 exemption in real estate which serves as their residence. In order to avoid a judicial lien on the basis that it impairs a debtor’s exemption, the debtor must show that he has exemption rights which are impaired by the existence of valid judicial liens. In Re Butler, 5 B.R. 360 (Bankr.Md.1980). The issue presented in this case is whether the debtor may claim as exempt his interest in and avoid judicial liens on property he does not. own, but which is subject to his right to purchase under a recorded installment sales contract. The interest of a debtor who purchases property under a recorded installment contract is property of the estate as of the petition date. In Re S.O.A.W. Enterprises, Inc., 32 B.R. 279, 11 B.C.D. 16, 18 (Bankr.W.D. Tex.1983). A recorded contract for a deed, the terms of which provide for the debtor to purchase and the seller to convey title when the debtor completes performance, is the equivalent of a mortgage relationship. In Re Booth, 19 B.R. 53, 8 B.C.D. 1393, 1395 (Bankr.D.Utah 1982). The vendor in substance is a mortgagee with a lien on the property in the amount of the purchase price. Id. As long as the debtor’s interest is recorded, the debtor’s exemption interest is superior to the position of the trustee. Cf. In Re Trotta, 12 B.R. 843, 8 B.C.D. 187 (Bankr.D.Conn.1981) (Debtor’s unrecorded equitable interest subject to trustee’s avoidance power as hypothetical lien creditor). In the present case, the debtor’s right to obtain title to the real estate upon performance of his obligations must be considered property of the estate which he is entitled to claim as exempt pursuant to § 522. Neither the trustee nor any creditor has objected to the debtor’s claim of exemption concerning this real estate. Thus, since I have concluded that the debtor may include this interest within his exempt property, next it must be determined whether any of the judicial liens are subject to avoidance because they impair" }, { "docid": "20958902", "title": "", "text": "security interest, but its lien is not perfected, the trustee automatically steps into a position having priority over the creditor. As one court has explained: In effect, the Bankruptcy Code grants [the] Trustee greater rights than the Bank had against Debtor’s vehicle outside bankruptcy.[The] Trustee’s strong-arm powers under § 544 allow him to preserve the value of an unperfected lien for the benefit of the bankruptcy estate. Debtor’s pre-petition rights remain the same post-petition as she had voluntarily granted the lien, even though the Bank had failed to perfect it. The Bank’s rights are also preserved as its lien was not perfected and therefore not effective against subsequently perfected liens. [The] Trustee has the rights of a creditor with a later-perfected lien. The Code allows the Trustee to avoid the unperfected lien and distribute the proceeds equally to all unsecured creditors of the bankruptcy estate. Sometimes, the trustee is required to take affirmative and formal action to force the unperfected lienholder to recognize this reality, but in some cases, where the lien is patently unperfected, the creditor will yield to the trustee without much effort on the part of the trustee. I agree with those courts that have held that such property comes into the estate pursuant to the trustee’s powers, even if the trustee seems relatively passive in causing that to happen. In effect, so long as the trustee asserts the estate’s interest in the property when faced with an unperfected or otherwise avoidable lien, the property has been recovered by the trustee, and the debtor may not claim such property as exempt. The key to this analysis is the underlying principle that a debtor should not be able to claim an exemption in property that the debtor voluntarily transferred to another party, by granting a security interest or otherwise. If, outside of bankruptcy, the creditor would have a valid lien, that lien would be enforceable against the debtor regardless of when, or whether, such lien was perfected. Section 522(g) means that the debtor is not allowed to reap a windfall benefit just because the lien which the debtor" }, { "docid": "20958904", "title": "", "text": "granted was not perfected by the creditor, or not perfected timely. Thus, if the lien was enforceable by the creditor outside bankruptcy, the debtor may not claim the resulting equity as exempt. If the lien were not enforceable outside bankruptcy, then there would be no transfer to avoid by the trustee, and the debtor could claim an exemption as they would any other unencumbered exemptible property. But that is not the case here since the parties appear to agree that HSBC had a valid, but unperfected, lien. Finally, where the debtor did grant a security interest in property, the debtor’s rights are not determined by whether the trustee actually was forced to bring an action to “recover” the property for the benefit of the estate. Otherwise, in a case such as this one, the trustee would always be required to file an adversary action against the creditor to do so. Requiring trustees to do so, when the creditor concedes that it has an unperfected lien, would result in unnecessary litigation and serve no useful purpose. Therefore, the trustee need only take such steps as are necessary to either have the creditor concede its lien is unperfected or otherwise avoidable, or to obtain a judgment so finding. Consequently, because I find that the Trustee “recovered” the equity that had been encumbered by HSBC’s lien for the benefit of the estate, the Debtors cannot claim exemptions in that equity. However, according to the schedules, the Esca-lade is worth $20,575, and HSBC’s debt is $18,840. Accordingly, since there was no contrary evidence as to the debt due HSBC, the Trustee recovered only the $18,840 for the benefit of the estate. The remainder, $1,735, represents equity that existed regardless of the Trustee’s powers and it is, therefore, exemptible. ACCORDINGLY, for the foregoing reasons, the Trustee’s Objection to Exemptions is SUSTAINED in part. The Debtors are entitled to claim exemptions totaling $1,735 in the 2000 Cadillac Esca-lade. IT IS SO ORDERED. . Mo. Stat. Ann. §§ 513.430.1(5) and (3). . As discussed more fully below, the distinction between whether HSBC has an unper-fected lien, versus" }, { "docid": "4572822", "title": "", "text": "(3) and 544(b)(1) of the Bankruptcy Code. Section 544, known as the “strong arm clause,” allows the trustee as a hypothetical judgment lien creditor under § 544(a)(1), a hypothetical unsatisfied execution creditor under § 544(a)(2), and a bona fide purchaser for value under § 544(a)(3), “to cut off unperfected security interests, secret liens and undisclosed prepetition claims against the debtor’s property as of the commencement of the case.” Collier on Bankruptcy ¶ 544.02[2] (Alan N. Resnick & Henry J. Sommer eds., 16th ed.). To state a claim under each of § 544(a)’s subsection, a trustee, in this case the Debtors, is required, at a minimum, to set forth facts that, if true, would establish the unperfected status of the lien sought to be avoided. Batt v. Scully, 168 B.R. 541, 545 (D.N.J.1994) (stating § 544(a) “gives the Trustee the power to defeat any unperfected security interests as of the date of the filing”); In re Best, 417 B.R. 259, 277-78 (Bankr.E.D.Pa.2009) (stating that the issue regarding plausibility of a trustee’s § 544(a) claim is whether depending on the trustee’s strong-arm powers the trustee would “have been able to defeat or prime the property interest”); High Strength Steel, Inc. v. Lozinski, et al. (In re High Strength Steel, Inc.), 269 B.R. 560, 574 (Bankr.D.Del.2001) (“a trustee is a secured creditor whose rights are junior to security interests which were perfected prior to the petition date”). For a § 544(b) claim, the Debtors were required to allege the existence of an actual creditor with an allow able unsecured claim that could have avoided the Liens. 2. The Debtors Failed to State a § 544(a) Claim for Avoidance of the Equitable Lien The Debtors may exercise their § 544 strong-arm powers to avoid the Equitable Lien only if J.P. Morgan’s interest was unperfected as of the Petition Date. See, e.g., In re Bridge, 18 F.3d 195, 204 (3d Cir.1994) (holding that trustee took property free and clear of unrecorded equitable lien); In re Aultman, 223 B.R. 481 (Bankr.W.D.Pa.1998) (holding that recording of prepetition lis pendens precluded operation of § 544(a)(3) strong-arm powers). In" }, { "docid": "10190193", "title": "", "text": "bankruptcy administration certain household goods they had sold to the bankrupt and in- which they had unperfected security interests. In concluding that the exemption granted under the Colorado statute extends to the bankrupt’s equity interest and not to the property itself, we reasoned: “The real controversy here is between the sellers who want to collect the purchase price and the trustees who wish to invalidate the liens and take the proceeds, up to the amount of the liens, for the bankrupt estates. In either event the bankrupts get for themselves the equity and nothing more. The sellers benefit if the exemption applies to the articles of property because the purchase money mortgages are valid between the sellers and the purchasers. The general creditors benefit if the exemption applies to the equity because then the property becomes part of the bankrupt estate and the liens are invalid against the trustee who sells the property and pays into the estate the amount of the liens with the excess going to the bankrupts under their exemptions.” 413 F.2d at 1286. We believe this view applies with equal force to the 1977 Oklahoma statute. Nothing in the language of the statute calls for a contrary conclusion. Although we perceive in the 1977 statute a legislative purpose to assure the bankrupt a personal means of transportation, we cannot agree with the district court that the language exempting “[o]ne (1) motor vehicle having an equity value not to exceed One Thousand Five Hundred Dollars” reflects a clear and unambiguous legislative intent to reserve to the bankrupt the very vehicle held by him in every instance where his equity interest is less than $1,500. When, as here, liens encumber a vehicle subject to exemption, the bankrupt, in practical terms, can be assured of no more than his equity interest. As we noted in Cummings, treating the exemption as extending to the vehicle itself does little more than assure the lien-holder a priority in the vehicle he might not be entitled to if the vehicle passed through the bankruptcy estate. Here, for example, GMAC would enjoy a priority" }, { "docid": "20916861", "title": "", "text": "the vehicle pursuant to 11 U.S.C. § 544. The facts in this case leads to the same conclusion. The Smiths financed the purchase of their restaurant fixtures and equipment and granted the Bank a lien to secure the obligation. Therefore, they may not utilize § 522(i)(2) of the Bankruptcy Code to exempt the property recovered by the trustee. The lien the Smiths gave to the National Boulevard Bank was a voluntary transfer. 11 U.S.C. § 101(40); see also, In re Saberman, 3 B.R. 316, 1 CBC 2nd 671 (Bkrtcy.N.D.Ill.1980). Therefore, they may not exempt the subject property under § 522(g)(1). Furthermore, they are not entitled to an exemption under § 522(g)(2) since a purchase money security interest is a nonjudicial lien which may not be avoided under § 522(f) of the Bankruptcy Code. It follows that the debtors failure to qualify for an exemption under § 522(f) and § 522(g) prevents them from benefitting from the lien avoided by the trustee. The debtors argued in their brief that the Bank’s unperfected lien was invalid upon the filing of their Chapter 11 petition so there is nothing for the trustee to preserve for the benefit of creditors in this case. That argument is unsupported. Under § 409.301(l)(b) of the Wisconsin Statutes an unperfected security interest in personal property is subordinate to the interest of a person who becomes a lien creditor prior to perfection. However, an unper-fected security interest is still valid against persons such as the debtors in this case. Perfection of an interest is important only to insure priority of the lien over intervening third parties. The absence of perfection does not affect, however, the enforceability of the lien against the parties to the transaction. Thus, even without a subsequent filing to perfect the security interest, the security interest became valid and enforceable . . ., from the date on which the last of the . . . requirements for attachment occurred. Styler v. Local Loan Financial Services, 6 B.R. at 577, 6 BCD at 1209. The Wisconsin Supreme Court reached the same conclusion in Charnesky v. Urban, 245" }, { "docid": "1113478", "title": "", "text": "court correctly observed that “[t]o to exemptable, the property must be unencumbered to the extent of that interest.” Day v. Boteler, 5 B.R. 408, 6 Bankr.Ct.Dec. 798 (Bkrtcy.S.D.Ala.1980). The following excerpt from the House Judiciary Report discussing the redemption provision of 11 U.S.C. § 722 bears directly on the issue before the court: This section is new and is broader than rights of redemption under the Uniform Commercial Code. It authorizes an individual debtor to redeem tangible personal property intended primarily for personal, family, or household use, from a lien securing a dischargeable consumer debt. It applies only if the debtor’s interest in the property is exempt or has been abandoned. The right to redeem extends to the whole of the property, not just the debtor’s exempt interest in it Thus, for example, if a debtor owned a $2,000 car, subject to a $1,200 lien, the debtor could exempt his $800 interest in the car. The debtor is permitted a $1,500 exemption in a car. Proposed 11 U.S.C. 522(d)(2). This section permits him to pay the holder of the lien $1,200 and redeem the entire car, not just the remaining $700 of his exemption. H.Rep. No. 95-595, 95th Cong., 1st Sess. 380-81 (1977), U.S.Code Cong. & Admin. News 1978, p. 6336 (emphasis added). Because a debtor’s exemptable interest in encumbered property is limited to his equity, he may not through his exemption claim shield an unperfected secured creditor from a trustee pursuing his rights under 11 U.S.C. § 544(a). As the court noted in Cummings, The real controversy here is between the sellers who want to collect the purchase price and the trustees who wish to invalidate the liens and take the proceeds, up to the amount of the liens, for the bankrupt estates. In either event the bankrupts get for themselves the equity and nothing more. The sellers benefit if the exemption applies to the articles of property because the purchase money mortgages are valid between the sellers and the purchasers. The general creditors benefit if the exemption applies to the equity because then the property becomes part of" }, { "docid": "1106113", "title": "", "text": "certain third parties. These parties are granted priority over an unperfected security interest even though their interests arise subsequent in time. See Utah Code Ann. § 70A-9-301 (Supp.1979). One such party designated in Utah Code Ann. § 70A-9-301(l)(b) as taking priority over an unperfected security interest is “a person who becomes a lien creditor before the security interest is perfected.” Section 70A-9-301(3) includes in its definition of a lien creditor, “a trustee in bankruptcy from the date of filing of the petition.” Thus, under state law, the trustee is granted priority over the unperfected lien of Local Loan. Under 11 U.S.C. § 544(a)(1), the trustee is granted certain avoiding powers in addition to his or her rights under state law. (a) The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by- (1) a creditor that extends credit to the debtor at the time of the commencement of the case, and that obtains, at such time and with respect to such credit, a judicial lien on all property on which a creditor on a simple contract could have obtained a judicial lien, whether or not such a creditor exists. Thus, as a hypothetical judicial lienholder who obtains his lien as of the date of filing the petition in bankruptcy, the trustee may avoid the unperfected security interest of Local Loan. Under 11 U.S.C. § 551, the lien is then automatically preserved for the benefit of the estate of the debtor. Thereafter, Local Loan has claim only as an unsecured creditor of the estate. The Lanctots claim the motorcycles in question as exempt property under 11 U.S.C. § 522(d)(5), which reads: (d) The following property may be exempted under subsection (b)(1) of this section: (5) The debtor’s aggregate interest, not to exceed in value $400 plus any unused amount of the exemption provided under paragraph (1) of this subsection in any property." }, { "docid": "9370123", "title": "", "text": "determined that Citifinancial’s lien in the debtor’s mobile home is unper-fected, the Court must now decide whether the trustee is entitled to avoid Citifinan-cial’s lien on the mobile home, the amount of the avoided lien, and the proper apportionment between the avoided lien and the non-avoided lien (ie. the real estate). Citifinancial advances what is essentially an equitable argument for denying the trustee’s requested relief. One, it would be inequitable to the debtor for the trustee to avoid Citifinancial’s lien because it is uncertain whether preserving the lien will actually benefit the bankruptcy estate. Two, Citifinancial apparently contests the apportionment of value between the avoided lien and the non-avoided lien, suggesting that the value of its lien on the real estate is greater than that proposed under the trustee’s methodology. K.S.A. 84-9-301(l)(b) gives priority to the trustee, as a lien creditor, over the unperfected security interest of Citifinancial. Under § 544, Citifinancial’s unperfected security interest in the mobile home is avoidable by the trustee. It makes no difference that the debtor has claimed the property exempt as his homestead. Citifinancial appears to argue that on an equitable basis, the Court should not grant the trustee’s request to avoid its lien because the debtor has claimed the property exempt. Citifinancial is essentially asserting the debtor’s exemption. This argument has been previously rejected. See In re Noblit, 72 F.3d 757, 758 (9th Cir.1995) (exemptions are personal to the debtor). Citifinancial also argues that preserving the lien will not benefit the estate and therefore, this Court should deny the trustee’s avoidance. As this Court reads § 551, upon avoidance of Citifinancial’s lien in the mobile home, the lien is automatically preserved for the benefit of the estate. See In re Rubia, 257 B.R. 324, 327 (10th Cir. BAP 2001), aff'd 23 Fed.Appx. 968, 2001 WL 1580933 (10th Cir. Dec.12, 2001). The effect of avoiding and preserving a lien under § 544 and § 551 was discussed in In re Rubia, supra. In that case, the trustee sought to recover postpetition payments made by the debtor to the creditor. ... the fixing of [the" }, { "docid": "19615998", "title": "", "text": "have actual notice.\"). Although an unrecorded mortgage is valid between the mortgagor and mortgagee, it is not enforceable against third parties. In re Bower, 2010 WL 4023396 at 4, 2010 Bankr. Lexis 3641 at 12 )(\"Unrecorded mortgages are only enforceable against the granter, his or her heirs, devisees, and persons with actual knowledge of the mortgage.\"). Generally, a mortgage gives a mortgagee title to the real property and the mortgagor retains possessory rights, causing a transfer of interest in property. Eaton v. Fed. Nat'l Mortg. Ass'n, 462 Mass. 569, 969 N.E.2d 1118, 1124 (2012). The trustee in Traverse was able to avoid the unrecorded mortgage as a transfer because under Massachusetts law an unrecorded mortgage is enforceable between the debtor and the mortgagee. In contrast, under Puerto Rico law, an unrecorded mortgage is unenforceable among the debtor, the mortgagee and third parties. In a lien theory jurisdiction, such as Puerto Rico, the mortgagee does not obtain title transfer of the real property. In fact, the lender must record the mortgage deed in the Property Registry to acquire a security interest over the real property. P.R. Laws Ann. tit. 30 § 2607, as superseded by Act No. 210 of December 8, 2015, Article 57. If there is a default by the mortgagor, then the mortgagee may foreclose on the real property in a judicial forum as a result of its recorded lien. P.R. Laws Ann. tit. 30 § 2701, as superseded by Act No. 210 of December 8, 2015, Article 94. However, an unperfected mortgage deed does not entitle the mortgagee the right to foreclose on the property in Puerto Rico. An unrecorded mortgage deed is not considered a lien or an unperfected security interest in real property in Puerto Rico-unlike Massachusetts law, which grounds the ruling in Traverse. The Traverse court made clear that the trustee's right of preservation under section 551 simply puts the trustee in the shoes of the creditor whose lien is avoided. Traverse, 753 F.3d at 29. A mortgagee may foreclose if a debtor defaults. However, the Traverse trustee could not foreclose on the property because" }, { "docid": "10190192", "title": "", "text": "question whether exemption extends to the property itself or to the debt- or’s equity interest in it. The result might instead be viewed as entitling the debtor vis-a-vis Dallas Ceramic to reserve whatever equity interest he had in the real estate up to $5,000, thereby precluding Dallas Ceramic’s attempted execution because the equity interest was less than $5,000. The precise question in this appeal concerning exemption in a bankruptcy context was answered by this court in In re Cummings, 413 F.2d 1281, under the Colorado statute exempting “[t]he household goods owned and used by the head of a family or owned by such head and used by his or her dependents to the extent of seven hundred fifty dollars in [equity] value, and owned and used by a single person to the extent of two hundred fifty dollars in [equity] value.” Colo. Rev. Stat. 1963, § 77-2-2(f) (current version at Colo. Rev. Stat. 1973, § 13-54-102(e)). The sellers in Cummings, much like GMAC, asserted exemption under the Colorado statute as a reason for removing from bankruptcy administration certain household goods they had sold to the bankrupt and in- which they had unperfected security interests. In concluding that the exemption granted under the Colorado statute extends to the bankrupt’s equity interest and not to the property itself, we reasoned: “The real controversy here is between the sellers who want to collect the purchase price and the trustees who wish to invalidate the liens and take the proceeds, up to the amount of the liens, for the bankrupt estates. In either event the bankrupts get for themselves the equity and nothing more. The sellers benefit if the exemption applies to the articles of property because the purchase money mortgages are valid between the sellers and the purchasers. The general creditors benefit if the exemption applies to the equity because then the property becomes part of the bankrupt estate and the liens are invalid against the trustee who sells the property and pays into the estate the amount of the liens with the excess going to the bankrupts under their exemptions.” 413 F.2d" }, { "docid": "20958903", "title": "", "text": "the creditor will yield to the trustee without much effort on the part of the trustee. I agree with those courts that have held that such property comes into the estate pursuant to the trustee’s powers, even if the trustee seems relatively passive in causing that to happen. In effect, so long as the trustee asserts the estate’s interest in the property when faced with an unperfected or otherwise avoidable lien, the property has been recovered by the trustee, and the debtor may not claim such property as exempt. The key to this analysis is the underlying principle that a debtor should not be able to claim an exemption in property that the debtor voluntarily transferred to another party, by granting a security interest or otherwise. If, outside of bankruptcy, the creditor would have a valid lien, that lien would be enforceable against the debtor regardless of when, or whether, such lien was perfected. Section 522(g) means that the debtor is not allowed to reap a windfall benefit just because the lien which the debtor granted was not perfected by the creditor, or not perfected timely. Thus, if the lien was enforceable by the creditor outside bankruptcy, the debtor may not claim the resulting equity as exempt. If the lien were not enforceable outside bankruptcy, then there would be no transfer to avoid by the trustee, and the debtor could claim an exemption as they would any other unencumbered exemptible property. But that is not the case here since the parties appear to agree that HSBC had a valid, but unperfected, lien. Finally, where the debtor did grant a security interest in property, the debtor’s rights are not determined by whether the trustee actually was forced to bring an action to “recover” the property for the benefit of the estate. Otherwise, in a case such as this one, the trustee would always be required to file an adversary action against the creditor to do so. Requiring trustees to do so, when the creditor concedes that it has an unperfected lien, would result in unnecessary litigation and serve no useful purpose." }, { "docid": "1113479", "title": "", "text": "the holder of the lien $1,200 and redeem the entire car, not just the remaining $700 of his exemption. H.Rep. No. 95-595, 95th Cong., 1st Sess. 380-81 (1977), U.S.Code Cong. & Admin. News 1978, p. 6336 (emphasis added). Because a debtor’s exemptable interest in encumbered property is limited to his equity, he may not through his exemption claim shield an unperfected secured creditor from a trustee pursuing his rights under 11 U.S.C. § 544(a). As the court noted in Cummings, The real controversy here is between the sellers who want to collect the purchase price and the trustees who wish to invalidate the liens and take the proceeds, up to the amount of the liens, for the bankrupt estates. In either event the bankrupts get for themselves the equity and nothing more. The sellers benefit if the exemption applies to the articles of property because the purchase money mortgages are valid between the sellers and the purchasers. The general creditors benefit if the exemption applies to the equity because then the property becomes part of the bankrupt estate and the liens are invalid against the trustee who sells the property and pays into the estate the amount of the liens with the excess going to the bankrupts under their exemptions. 413 F.2d at 1286. It is apparent that in the Bankruptcy Reform Act of 1978 the Congress has chosen to benefit the general creditors. It is important to note that the conclusion reached herein is derived from subsection (b) of § 522, which contains the general operative exemption provisions of this new law. Thus, it is applicable whether a debtor utilizes bankruptcy or nonbankruptcy exemptions. In either event, a debtor may exempt only his equity in property subject to a security interest. It is important for trustees in jurisdictions where state exemption statutes are similar to those which were before the courts in the Espelund and Baldwin cases to realize that they now must scrutinize every exemption claim-even if the value available and assigned by the debtor is sufficient to cover the entire property-to ascertain whether the property nevertheless is" }, { "docid": "2224381", "title": "", "text": "redeem the property as if the “time of redemption had not expired.” 12 Vt. Stat. Ann. §§ 4529, 4530. It is quite clear that under Vermont law, the act of recording a certificate of non-redemption in no way affects the mortgagor, whose equity of redemption extinguishes automatically when the redemption period lapses. Recording simply perfects title against “subsequent purchasers, mortgagees or attaching creditors.” See id. § 4530 (“Such foreclosure shall not transfer the title to such lands as against subsequent purchasers, mortgagees or attaching creditors,” unless the certificate is recorded on time) (emphasis added). Appellant argues that filing the certificate of non-redemption affects its rights as “a subsequent attaching creditor.” For the reasons discussed below, we disagree both with Appellant’s premise (that it qualifies as “a subsequent attaching creditor”) and its conclusion (that such status would entitle it to stay the filing of the certificate of non-redemption). Appellant contends that pursuant to federal bankruptcy law (1) a debtor-in-possession stands in the shoes of a trustee, see 11 U.S.C. § 1107(a);(2) a trustee may, inter alia, stand in the shoes of a creditor that issued credit at the time the bankruptcy petition was filed, see 11 U.S.C. § 544(a)(1); and (3) appellant “obtainfed], at such time and with respect to such credit, a judicial lien on all property on which a creditor on a simple contract could have obtained such a judicial lien....” Id. While this argument seems to support appellant’s claim that a debtor may be deemed a “subsequent attaching creditor” by operation of § 544 of the bankruptcy code, the argument distorts the purpose of the “strong arm” powers under § 544. “The purpose of the ‘strong arm clause’ is to cut off unperfected security interests, secret liens and undisclosed prepetition claims against the debtor’s property as of the commencement of the case.” Collier on Bankruptcy ¶ 544.03 (15th ed. rev.2001). Given that Merchants Bank’s mortgage is neither unperfected, secret, nor undisclosed, we find § 544(a)(1) inapplicable in this case. Assuming arguendo that appellant is “a subsequent attaching creditor,” we nonetheless conclude that appellant’s argument that the filing of" }, { "docid": "23482516", "title": "", "text": "9, and debtor later filed bankruptcy. The debtor’s Trustee thereafter sought to avoid the transfer of the “accounts”, and the creditor moved to dismiss the Trustee’s action. The Florida court began by finding that the parties had intended to create an interest in the debt- or’s personality, the “accounts” or contracts for deed. Id. at 1351-52. The Court then held: “The contract vendee’s possible equitable interest in the land he is purchasing does not exempt a third party’s security interest in the vendor’s rights of collection from Florida’s Uniform Commercial Code. Such an interest is created by contract, emanates from the rights and obligations of the executory contract between vendor and vendee, and must be characterized as personal property.” Id. at 1353. Having earlier found, as a matter of fact, that the creditor had not perfected by filing, id. at 1351, the Court then held that the Trustee, having shown the creditor to be unperfected, had properly stated a cause of action for lien avoidance under the Bankruptcy Act of 1898, and denied the creditor’s motion to dismiss. In its answer to the Complaint filed by Castle Rock Industrial Bank, S.O.A.W. also asserted a counterclaim, alleging that Plaintiff Castle Rock Industrial Bank was an unperfected creditor as of the date of bankruptcy, and that, pursuant to § 544(a), as applied in Chapter. 11 cases under the terms of §§ 1106 and 1107(a), that S.O.A.W., as Debtor-in-Possession, was entitled to avoid the lien of Castle Rock Industrial Bank, with such lien to be preserved for the benefit of S.O.A.W.’s estate under § 551 of the Bankruptcy Code. Having held that Plaintiff was an unperfeeted creditor as of the date of the petition herein and having held that these Agreements for Deed are to be considered property of the estate, it is the opinion of this Court, that the pledge and physical possession of the Agreements for Deed was not effective to perfect the security interest of Plaintiff Castle Rock Industrial Bank and said liens can be avoided by the Court for the benefit of the Estate. Pursuant to Rule 7052 of" }, { "docid": "20916862", "title": "", "text": "the filing of their Chapter 11 petition so there is nothing for the trustee to preserve for the benefit of creditors in this case. That argument is unsupported. Under § 409.301(l)(b) of the Wisconsin Statutes an unperfected security interest in personal property is subordinate to the interest of a person who becomes a lien creditor prior to perfection. However, an unper-fected security interest is still valid against persons such as the debtors in this case. Perfection of an interest is important only to insure priority of the lien over intervening third parties. The absence of perfection does not affect, however, the enforceability of the lien against the parties to the transaction. Thus, even without a subsequent filing to perfect the security interest, the security interest became valid and enforceable . . ., from the date on which the last of the . . . requirements for attachment occurred. Styler v. Local Loan Financial Services, 6 B.R. at 577, 6 BCD at 1209. The Wisconsin Supreme Court reached the same conclusion in Charnesky v. Urban, 245 Wis. 268, 14 N.W.2d 161 (1944). This court notes that Congress consciously endowed debtors with avoidance powers under the Bankruptcy Code which were unavailable under § 6 of the Bankruptcy Act of 1898 (former 11 U.S.C. § 24). However, nothing in § 522 empowers a debtor to avoid a consensual lien. It would not be consistent in this context to place the burden on the trustee to avoid an unperfected lien only to have the debtor exempt the property. Should this court rule that the debtors may claim the subject sale proceeds exempt, the result would be of no benefit to the debtors or the bankruptcy estate and would undermine the goals of the bankruptcy laws. In view of the foregoing, which constitutes my findings of fact and conclusions of law in accordance with Rule 752 of the Federal Rules of Bankruptcy Procedure, the trustee is entitled to a judgment denying the debtors claimed $14,950.00 exemption from the proceeds received from the sale of equipment and fixtures removed from their restaurant located at 7630 West" }, { "docid": "4755708", "title": "", "text": "the project, (2) the completion of the reconstruction work and (3) Cataldo had to request the note and mortgage. The mortgage was also supposed to be superior in priority to any interest of Carroll M. Low-enstein and/or CML Realty Trust which had a third mortgage on the property. Finally, Deja Vu argues that it had a lien on the property in the form of a statutory Notice of Contract which lien Deja Vu was induced to terminate through misrepresentation of Recklitis. On all of these facts, Deja Vu, except for bankruptcy, might well have an unperfect-ed right to a mortgage; however, the Court need not consider this issue because the intervening bankruptcy changes the rights of the parties. Under 11 U.S.C. § 541, all the property of the Harbour House debtors became property of the estate. The estate is a separate entity from the pre-bankrupt-cy debtors. See In re Robinson’s Wines & Liquors, Inc., 2 B.C.D. 50 (E.D.N.Y.1975) (debtor in possession is a different entity from debtor). It has long been recognized in bankruptcy law that equitable liens will not be valid where available means of perfecting legal liens have not been employed. Allowing an equitable lien is an unfair result for unsecured creditors who have dealt with the debtor without knowledge of the secret lien. Legislative History to § 60(a)(6) Bankruptcy Act of 1898 (repealed 1978), House Report No. 1293, 81st Cong., 1st Sess. (1949). Congress has recognized the importance of protecting creditors from secret or equitable liens by giving the trustee, as of the commencement of the case, the status of a bona fide purchaser of real property. 11 U.S.C. § 544(a)(3). Under this section of the Code, the trustee can avoid unrecorded interests. In re Trotta, 12 B.R. 843, 8 B.C.D. 187 (Bkrtcy.D.Conn.1981). An equitable lien would not be valid against a bona fide purchaser since the purchaser has no notice that such a lien exists and the trustee may avoid such a lien. In re Mazzetti, 22 B.R. 538, 9 B.C.D. 686 (Bkrtcy.E.D.Mich.1982); see also In re Hastings, 4 B.R. 292, 6 B.C.D. 401 (Bkrtcy.D.Minn.1980). Deja" }, { "docid": "1170426", "title": "", "text": "performance, is the equivalent of a mortgage relationship. In Re Booth, 19 B.R. 53, 8 B.C.D. 1393, 1395 (Bankr.D.Utah 1982). The vendor in substance is a mortgagee with a lien on the property in the amount of the purchase price. Id. As long as the debtor’s interest is recorded, the debtor’s exemption interest is superior to the position of the trustee. Cf. In Re Trotta, 12 B.R. 843, 8 B.C.D. 187 (Bankr.D.Conn.1981) (Debtor’s unrecorded equitable interest subject to trustee’s avoidance power as hypothetical lien creditor). In the present case, the debtor’s right to obtain title to the real estate upon performance of his obligations must be considered property of the estate which he is entitled to claim as exempt pursuant to § 522. Neither the trustee nor any creditor has objected to the debtor’s claim of exemption concerning this real estate. Thus, since I have concluded that the debtor may include this interest within his exempt property, next it must be determined whether any of the judicial liens are subject to avoidance because they impair the debtor’s claimed exemption of $7,900. This analysis turns on the value of the property as of the petition date, as compared to the amount of non-avoidable obligations. In Re Tarrant, 19 B.R. 360 (Bankr.D.Alaska 1982). A judicial lien impairs an exemption where all or any portion of the lien exceeds the remainder of value left over after subtraction of each valid lien and the exemption claimed. In Re Duncan, 43 B.R. 833, 838 (Bankr.D.Alaska 1984). Here, the value of the property and the amount of outstanding obligations asserted by the debtor shall be accepted by the Court because none of the interested parties appeared to contest the facts according to the debtor. Thus, I find that the value of the debtor’s interest in the real estate is $62,000, the value according to the trustee’s appraisal. A condition precedent to the debtor’s obtaining title is the payment of $59,000, which is the amount of the seller’s “lien.” In light of this obligation, all of the debtor’s equity is subject to his claim of exemption. There" } ]

[ { "docid": "3440674", "title": "", "text": "EASTERBROOK, Circuit Judge. Dan Young, whose IQ has been measured at 56, has slight comprehension of abstract concepts. He is also uncontrollably violent when left to his own devices and has accumulated a lengthy criminal record. The convictions now under review are for the rape and exceptionally brutal murder of Kathy Morgan. His detailed confession was corroborated by a confederate plus a match between Young’s dental pattern and a bite mark on Morgan’s body. He was sentenced to life imprisonment, which is essential to incapacitate Young (who appears to be undeterrable) and protect society. According to Young, however, his mental shortcomings prevent him from making effective confessions and require him to be freed, because he can’t understand the legal significance of Miranda warnings. What is more, Young now contends that the drugs used to render him calm enough for trial spoiled the adjudication — and his counsel rendered ineffective assistance by not doing more to prevent a trial from occurring. The district court denied Young’s petition under 28 U.S.C. § 2254. See 2001 WL 1298704, 2001 U.S. Dist. LEXIS 17618 (N.D.Ill. Oct. 25, 2001). Before trial three psychiatrists examined Young. All three concluded that he was fit for trial — which is to say that he had the mental capacity to understand the charges and assist his lawyer in presenting a defense. See Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). In light of the unanimity, Young’s lawyer did not request a formal fitness hearing under 725 ILCS 5/104-21(a) and 725 ILCS 5/104-11. Young’s current lawyers say that this was incompetent assistance, because one of the reasons why Young was deemed fit to stand trial was that he was taking psychotropic medication. A timely hearing, according to current counsel, might have shown that the drugs interfered with rather than promoted Young’s fitness. When Young made a similar claim on post-conviction review in Illinois, the state court held a hearing to consider exactly this question. After receiving evidence the judge concluded, on the basis of uncontradicted psychiatric evidence, that Young was taking the drugs not" } ]

[ { "docid": "2239563", "title": "", "text": "received a request for information from the office of the United States Attorney. As he had for Newman, Rosner determined to obtain a lawyer for Seiden more familiar with matters of this nature, and, after conversing with other lawyers in New York, arranged for Martin to represent Seiden. At that time Martin was in private practice, as a partner in a firm which did a considerable amount of criminal defense work. Rosner describes his initial contacts with Martin as follows: “In the course of briefing Mr. Martin as to the matter for which we required his services, I disclosed the following: I told Mr. Martin that I had interviewed Norman Seiden and was satisfied that Mr. Seiden had nothing to fear from the criminal investigation. I told Mr. Martin that Mr. Newman was Mr. Seiden’s son-in-law, was a target of the investigation and that, within the bounds of law, Mr. Seiden wanted to assist Mr. Newman’s defense. Because of these circumstances, I considered my communication with Mr. Martin to be clothed in the attorney-client privilege. In employing Mr. Martin, I disclosed to him in a summary way my understanding of the facts, and answered the questions Mr. Martin put to me. While I do not recall now the details of the conversation, the only facts I had at that time I had obtained from Mr. Newman in privileged communications to me. I told Mr. Martin, in substance, based upon my understanding of the facts, that Mr. Newman may very well be in trouble in the investigation. I had, I believe, two telephone conversations and one face-to-face meeting with Mr. Martin, during which I gave Mr. Martin my understanding of Mr. Newman’s problem, the facts I felt Mr. Martin needed, and answered questions Mr. Martin put to me. I believe I also told Mr. Martin that Mr. Newman had retained Arthur Christy to represent him, and he should feel free to call Mr. Christy.” Returning at the end of his affidavit to his communications with Martin, Rosner states: “I have a clear recollection that, perceiving Mr. Martin to be in effect" }, { "docid": "7078022", "title": "", "text": "OPINION SWEET, District Judge. This diversity action was commenced by Murray Newman (“Newman”) against his former attorney Murray Silver (“Silver\"), a resident of Georgia, and Ralph LiButti who was known to the parties at the time of the transactions in question as Robert Prestí (“Prestí”), alleged without denial to be a New Jersey resident. The complaint alleg es causes of action for a breach of fiduciary duty, malpractice, fraud, and conversion. Upon the findings and conclusions set forth below, judgment will be entered on the first cause of action, and damages will be awarded in the amount of $169,300.00. The remaining causes of action will be dismissed. The parties to this dispute would be readily recognized by O. Henry and Damon Runyon, and it is regrettable that their skills and knowledge of the foibles of human conduct could not be combined to resolve the issues in this non-jury trial. The testimony, in its totality has presented a disturbing view of scenes behind the defense of a substantial' criminal prosecution. As is so often the case, the convicted defendant, Newman, here seeks to blame his counsel, Silver, for his conviction and sentence and to recover amounts which he paid for legal services which he considers constituted malpractice, a breach of his attorney’s fiduciary duty and worse. Findings of Fact In the fall of 1977 by virtue of a subpoena duces tecum served upon Capitol Motors, Inc. (“Capitol Motors”) Newman, the company’s president and chief executive officer and thirty percent shareholder, learned that the company, he and the company’s other principal officer, Charles Romagnano (“Romagnano”) were the targets of a grand jury investigation into the turning back of odometers (“clocking”) by a number of used car dealers, some of which, like Capitol Motors, were located on Jerome Avenue in the Bronx. After consulting with his regular counsel, who advised that he had little familiarity with criminal proceedings, Newman retained Paul Perito, a former Assistant United States Attorney in this district, who had been suggested to him by his son, Gary Newman (“Gary”). At this early stage the indistinct outline of the role" }, { "docid": "23293255", "title": "", "text": "Bubar, Zalowitz did effectively cross-examine a number of the government witnesses, including the government’s principal witness, Shaw; he sought to establish as his defense that Bubar was a saint who could not possibly have done wrong and at the same time he tried to show that Shaw and the government were in league against him — God v. Mammon; and, even though this may be regarded as an odd posture for a criminal defense today, some indication of its effectiveness is that it kept the jury out deliberating Bubar’s fate for three days. Under our Wight standard, “[t]he proof of the efficiency of . assistance [of counsel] lies in the character of the resultant proceedings. . . . ” 176 F.2d at 379. (B) Bubar’s Decision To Assert His Right To Be Represented By Counsel Of His Own Choice We turn next to what we regard as the decisive issue on Bubar’s representation by counsel claim: whether he knowingly and intelligently exercised his constitutional right to be represented by counsel of his own choice. We hold that he did. The record before us demonstrates with striking clarity that Bubar selected Zalow-itz as his counsel because he knew him and had compelling reasons for entrusting his defense to him; that after more than a month of trial, during which he was represented by two lawyers, he deliberately rejected Meehan, his court-appointed lawyer, and chose to continue to have Zalowitz represent him, despite Judge Newman’s repeated statements to Bubar that Meehan was the more effective lawyer; on at least three occasions after Meehan’s withdrawal Judge Newman reminded Bubar of Mee-han’s continued availability, since he had been permitted to withdraw only on the condition that he would return if Bubar needed him; and on December 2, 1975 Bu-bar bluntly informed Judge Newman, “I wish only Mr. Zalowitz, and I have no desire for any other attorney.” Bubar adhered consistently to that position throughout proceedings in the district court and, for aught that appears in the record, still does, despite the able presentation made to us by his court-appointed appellate counsel. Backing up for" }, { "docid": "13516752", "title": "", "text": "704 advisory committee’s notes. However, Newman failed to object to the first two statements, and, absent any objections, the district court had little reason to exclude the statements on its own accord. The above statements were not offered as opinion testimony per se; rather, the DBR director’s opinion was part of' a letter demanding that Newman return the diverted assets, and the second statement was offered in the ordinary course of describing certain events and discussions surrounding the discovery of Newman’s diversion of funds. Without objection to the specific itéms, the district court could well have concluded that the evidence, overall, was helpful to the jury in understanding the course of events. Admission of the first two statements clearly did not rise to the level of plain error. See United States v. Williams, 809 F.2d 75, 82 (1st Cir.1986), cert. denied, 482 U.S. 906, 107 S.Ct. 2484, 96 L.Ed.2d 377 (1987). Newman did object to the third statement, and while its admission was erroneous, the, error was harmless. The general concern with statements of ultimate legal opinions is that juries may be confused or may accept the offered opinions in lieu of the legal rulings of the judge. See 3 Jack Weinstein & Margaret Berger, Weinstein’s Evidence § 704[02] (1994). The third statement did not present this risk. Like the second statement, it was made in the course of describing events and discussions surrounding Newman’s diversion of the funds. The statement was made in passing and was not held out as authoritative or expert opinion on Newman’s guilt for the charges on trial. See, e.g., Hygh, 961 F.2d at 363 (finding that erroneous admission of legal opinion was harmless error). C. Prosecutorial Misconduct Newman argues that the district court erred in allowing the government to ask him grossly improper and argumentative questions during the opening of the cross-examination. Newman points to two specific sets of questions. In the first, the prosecutor asked Newman if he knew the' meaning of the terms “intent” or “state of mind.” We find these questions to be clearly harmless. Indeed, Newman does not indicate that" }, { "docid": "22580423", "title": "", "text": "Agent Batt testified on voir dire that Evans was somewhat equivocal in making his identification. The level of certainty-demonstrated by a witness is clearly one factor to consider in assessing the reliability of his confession. See Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In excluding entirely Agent Batt’s testimony concerning the prior photographic selections made by Evans, Judge Newman conceded that he might have admitted this testimony — at least as to Evans’ failure to select the photograph of Jenkins included in the spread shown to him — in a separate trial of Jenkins. In a separate trial, however, Jenkins would have had no due process right to introduce the testimony of Agent Batt regarding the prior identification by Evans, cf. Chambers v. Mississippi, supra. We cannot say that the mere loss of the possible privilege of presenting normally inadmissible hearsay in a separate trial evidences prejudice of a type mandating severance of a joint trial under Rule 14, F.R.Cr.P. Cf. Byrd v. Wainwright, 428 F.2d 1017, 1022 and n. 8 (5th Cir. 1970) (where the exculpatory testimony was admissible as of right in a separate trial). Jenkins next claims prejudice by reason of the trial court’s redaction of Corinne Shelly’s pretrial statement concerning Jenkins’ admission of guilt to her, from which Judge Newman edited out Shelly’s report of incriminating references by Jenkins to his co-defendants. According to the statement, which was given to federal agents on September 20, 1972, Jenkins first replied to Shelly’s inquiries about the bank robbery that he had “helped rob the bank,” and then later suggested that the persons he had helped were “Nasty [Wilcox] and his friends.” Judge Newman’s redaction of any reference to Wilcox or the other co-defendants was proper in the context of the joint trial, see Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and did not limit in the least the ability of Jenkins’ counsel to cross-examine Shelly concerning her in-court recitation of this admission. Indeed the redacted portions probably would have hurt Jenkins more than they" }, { "docid": "19346957", "title": "", "text": "Barefoot had regained sufficient competency to be tried. Dr. Newman concluded that “Barefoot is able to understand the nature and consequences of the proceedings against him and to assist properly in his defense. We view him as competent to stand trial with representation by his attorney.” J.A. 905 (emphasis added). Barefoot maintains that the district court, in determining whether he was able to adequately represent himself in April 2012, could not have reasonably relied on Dr. Newman’s opinion given more than a year previously. But Barefoot offered no evidence of his own in counterpoint. Further, Barefoot’s mental health had been at issue before the court, at the time of its ruling, for more than five years. Viewed in the context of the process at large— deliberate as it was—the court correctly declined to disregard Dr. Newman’s evaluation as stale per se. Rather, the district court was bound to consider all of the evidence together with any circumstances enhancing or detracting from its probative value, including its vintage, and to accord that evidence its commensurate weight. Dr. Newman’s 2011 evaluation, standing in isolation, might have been regarded as inconclusive with respect to Barefoot’s competency to conduct his own defense in 2012. Taken in conjunction with the court’s opportunity to personally observe Barefoot, however, and juxtaposed with the affirmative evidence of Barefoot’s competency (of which there was little), Dr. Newman’s opinion could rationally carry the day. It was therefore not an abuse of the court’s discretion to rule, in accordance with Edwards, that Barefoot was not sufficiently competent to represent himself at trial. B. The government offered the Petit evidence in connection with its presentation on Count Three, which charged Barefoot with solicitation to commit a crime of violence, that is, to damage or destroy by explosives the Johnston County Courthouse and Sheriffs Office. Gautier, who had participated in Petit’s murder, recounted at trial that Barefoot harbored a grudge against Sheriff Bizzell. Barefoot blamed Bizzell for the failure of the Bare-foots’ fledgling drinking establishment, The Enchanted Barn, which one witness described as “a backwoods bootleg bar or something.” J.A. 663. Gautier explained" }, { "docid": "376443", "title": "", "text": "until after the trial. These notes were not susceptible to “suppression by the prosecution,” see Brady, 373 U.S. at 87, 83 S.Ct. 1194. Under no circumstances is the Government required to volunteer to the defendant potentially exculpatory information which it neither possesses nor of which it is aware. With respect to the remainder of the notes, appellant’s only claim of materiality is that their use at trial would have enabled him further to impeach Newman by emphasizing the scope of his assistance to the Government in the hope of receiving lenient treatment. Goldberg does not dispute the district court’s finding that the fact of Newman’s cooperation was fully explored at trial; he simply argues that the specifics of that cooperation evidenced by the notes were not brought out. The district court found on remand, and we have seen no contrary evidence, that nothing in the notes tended to prove appellant’s innocence of the charges against him. In particular, appellant argues that certain portions of Newman’s handwritten notes would have been useful for his impeachment. Appellant accurately summarizes these as providing questions for appellant’s and a defense witness’s cross-examination. Of course, there is no due process right to such materials on the basis that they would have given advance notice of the prosecution’s questions — evidence of this character is not “material to guilt.” The only legitimate purpose to which these notes could have been put is the further illustration of the extent of Newman’s cooperation. Assuming the Government’s failure to produce these notes was error, it was harmless beyond a reasonable doubt. In addition to the obvious fact that they were merely cumulative on the issue of Newman’s cooperation, it is questionable whether the effect of these notes — as well as the Keilp and Lebowitz notes — would be to impeach Newman at all. It is at least as likely that to the extent Newman could win the prosecutor’s favor by his cooperation, he would be less likely to attempt to do so by perjurious testimony. Finally, appellant points to three instances in the Newman notes where the notes" }, { "docid": "8426637", "title": "", "text": "1963). . . .” United States v. Newman, 476 F.2d at 733. The above case is not only controlling on the standard to be applied, but is also determinative of the outcome with regard to this portion of Gaea’s appeal. Gaea asserts that statements brought to the attention of the trial judge in Newman indicate that the government may have bargained with Nee. Thesé' were the very statements considered by this Court in Newman. If this Court felt that it was reasonable for the district judge to disbelieve that the U.S. Attorney had vital information in Newman, the same conclusion must apply herein, inasmuch as we are reviewing the same precise statement. Thus, this Court is bound by precedent to find that the mere refusal to compel testimony by the U.S. Attorney did not constitute error. 2. “Testimony” by the prosecutor A statement made by the Assistant U.S. Attorney in his closing remarks, however, serves to distinguish this case from Newman. To support Nee’s testi mony that he had served as a witness without “threats or promises or inducements”, the prosecutor stated to the jury: “Our office has nothing to do with that. We could not and would not deal with Mr. Nee. He plead guilty.” (Tr. 563-564) (emphasis added) The government concedes that the above represents “testimony”, but argues that its effect was not prejudicial because 1) the jury knew that sentencing was within the Judge’s prerogative and 2) cautionary instructions were given to the jury. The government’s arguments are not persuasive. Had the Assistant U.S. Attorney believed that the jury actually understood the sentencing process, he would not have made the statement in the first place. It is more likely that the Assistant U.S. Attorney offered the comment in order to support the damaged credibility of the government’s prime witness, Thomas Nee. A juror listening to Nee may well have discredited his testimony on the assumption that Nee had received a deal in return for a guilty plea and service as a witness. The “testimony” by the prosecutor undermined this assumption, and thereby prejudiced the defendant. When a" }, { "docid": "10111394", "title": "", "text": "Ad.News 3182, 3411). However, nothing in the Act or its legislative history suggests a Congressional intent to preclude psychiatric testimony relevant to the entrapment defense. The entrapment defense, both before and after passage of the Act, allows the defendant to argue that he lacked predisposition and he only committed the crime because he was induced to commit it by government agents. Psychiatric testimony that a defendant’s mental disease, defect or subnormal intelligence made him more susceptible to inducement than a normal person or rendered him incapable of forming the specific intent required as an element of the crime would not be barred by the Act. Pohlot, 827 F.2d at 897. Although we conclude that Han-nie’s testimony was admissible, we also conclude that the district court did not abuse its discretion by refusing to admit it. The trial court has wide discretion under Fed.R.Evid. 702 to admit expert testimony if it will “assist the trier of fact to understand the evidence or determine a fact in issue.” In light of the lengthy and sometimes inconsistent explanation of the substance of Hannie’s testimony by Newman’s attorney, the trial court could easily have concluded that the testimony would needlessly confuse the jury. Newman’s attorney stated that Hannie, among other things, would testify that Newman did not have the specific criminal intent needed to commit the offense in question. Testimony on the ultimate issue of intent is inadmissible under Fed.R.Evid. 704(b). Newman noticed his intent to present an insanity defense well before trial; however, he did not inform the court or the government that Hannie would testify on Newman’s susceptibility to inducement until the government had rested its case. The trial court could have properly excluded the evidence on the basis that the government had insufficient time to procure rebuttal psychiatric witnesses. McLernon, 746 F.2d at 1115. Finally, Newman’s proffer of testimony indicated that Hannie was not going to testify that Newman’s mental disease, defect or subnormal intelligence made him susceptible to inducement. Rather, Hannie planned to testify that Newman’s well-doc umented addiction to cocaine and depression over the activities of his business partners" }, { "docid": "10111395", "title": "", "text": "of the substance of Hannie’s testimony by Newman’s attorney, the trial court could easily have concluded that the testimony would needlessly confuse the jury. Newman’s attorney stated that Hannie, among other things, would testify that Newman did not have the specific criminal intent needed to commit the offense in question. Testimony on the ultimate issue of intent is inadmissible under Fed.R.Evid. 704(b). Newman noticed his intent to present an insanity defense well before trial; however, he did not inform the court or the government that Hannie would testify on Newman’s susceptibility to inducement until the government had rested its case. The trial court could have properly excluded the evidence on the basis that the government had insufficient time to procure rebuttal psychiatric witnesses. McLernon, 746 F.2d at 1115. Finally, Newman’s proffer of testimony indicated that Hannie was not going to testify that Newman’s mental disease, defect or subnormal intelligence made him susceptible to inducement. Rather, Hannie planned to testify that Newman’s well-doc umented addiction to cocaine and depression over the activities of his business partners made him easy prey for government agents. This Circuit has consistently held that narcotics addiction standing alone without other psychological involvement raises no issue of mental disease or defect. United States v. Lyons, 731 F.2d 243, 245 (5th Cir.1984) (en banc), cert. denied, 469 U.S. 930, 105 S.Ct. 323, 83 L.Ed.2d 260 (1984). While the record does not expressly demonstrate that the trial judge followed precisely the routine set out above, it does disclose that refusal to allow the psychologist to testify as the attorney proffered did not affect Newman’s substantial rights. Any error or irregularity in this respect must be disregarded. Fed.R.Crim.Pro. 52(a). III. For the foregoing reasons, the judgment of the trial court is AFFIRMED." }, { "docid": "22253164", "title": "", "text": "were perceiving [Johnson’s] performance.” (Id. at 103, J.A. at 665.) Noyes also met directly with Johnson to discuss this unfavorable review, and expressly addressed (and refuted) Johnson’s attempt to shift the blame to Newman. When Johnson complained that the shortfalls in his performance were the result of Newman not training him properly, Noyes responded that it was “part of a co-manager’s responsibility” to “go and motivate themselves to get this information,” and that “it’s not good just to blame one store manager in nine years for not teaching you anything.” (Id. at 120, J.A. at 669.) Moreover, on those infrequent occasions when Noyes invited Newman to express his opinion about Johnson and his job performance, the record reveals that Newman often used these opportunities to serve as an advocate for Johnson, and not a detractor. Most significantly, when Noyes informed Newman that she was considering terminating Johnson, Newman responded by asking whether “there was anything more he could do to help” Johnson. (Id. at 165-66, J.A. at 675-76.) More generally, while Newman occasionally expressed a desire to do more to address the problems that Noyes had identified at the Wheelers-burg store, and voiced his frustration that these deficiencies would reflect poorly upon him as store manager, Noyes responded by expressly directing Newman to “hold back” in order to “give [Johnson] the opportunity to show what he could do.” (Id. at 91-93, J.A. at 656-58.) Noyes’ testimony, in short, belies any suggestion that she acted as a mere conduit of Newman’s alleged racial prejudice, or his “cat’s paw,” in reaching the decision to discharge Johnson. In this regard, this case is far different from Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 877-78 (6th Cir.2001), in which we found support for a “cat’s paw” theory in senior management’s failure to conduct an independent investigation, and its reliance instead upon the account of an allegedly biased lower-level employee. Here, by contrast, Noyes testified that she based her decision upon an independent assessment of Johnson’s job performance, informed principally by her own direct, repeated, and unchallenged observations. Absent any basis to disregard Noyes’" }, { "docid": "9373832", "title": "", "text": "108 (1976) (plurality opinion). The Constitution requires the circumstances to reflect that the defendant was informed of all of the direct consequences of his plea. Brady, 397 U.S. at 755, 90 S.Ct. 1463. A plea may be involuntary if the defendant does not understand the nature of the constitutional rights he is waiving, or unintelligent if the defendant does not understand the charges against him. Henderson, 426 U.S. at 645 n.13, 96 S.Ct. 2253. With respect to counsels’ performance, the record indicates that Beck was adequately informed of the nature and consequences of his guilty pleas and understood the charges against him. According to the affidavit submitted by Beck’s trial counsel on state habeas, counsel discussed the guilty plea with our client, repeatedly, at length, and in great detail. We both have experience with Arlington juries and serious crimes and we both felt it highly likely that an Arlington jury would convict our client and sentence him to death. We discussed the advisability of a jury versus a judge sentencing with other attorneys in the areas, and they concurred that a jury was likely to sentence Beck to death. We knew from the outset that Judge Newman would try this case, that he had no prior capital case experience, and that he was fair in sentencing in other serious felony cases. We also believed that the evidence in mitigation we intended to present would be more favorably received by a judge than a jury. We recommended to Beck that he plead guilty and have judge sentencing as presenting only a better likelihood of avoiding a death sentence. The decision to plead guilty and have Judge Newman sentence was ultimately Beck’s decision, after our recommendation and numerous discussions of the pros and cons of the different options. We discussed, at length, with Beck the elements of all offenses charged and in detail what the Commonwealth would have to prove to convict him. We discussed the possibility that Beck could avoid a rape conviction, based on his denials of that offense, and the possible effort to defeat the robbery charges on the" }, { "docid": "19346956", "title": "", "text": "decision in substantial part on its “impressions of and discussions” with Barefoot during the hearing. Faretta Order 5. These colloquies were generally marked by Barefoot’s insistence that he could cross-examine the government’s witnesses far more ably than his appointed counsel. The court strove to impress upon Barefoot that effective cross-examination is merely an isolated aspect of a thorough, competent defense, but it came to regard that message as neither received nor comprehended. At hearing’s end, the court remained “unconvinced” that Barefoot could “understand[ ] fully his role and duties at trial were he to represent himself.” Id. at 4. Moreover, the district court expressed concern that Barefoot’s delusional disorder had only partially remitted, and that he was not taking medication to ameliorate any lingering impairment. The court adverted to the forensic evaluation prepared by Ralph Newman, a staff psychiatrist at the Federal Medical Center in Butner, North Carolina, where Barefoot had been housed since January 2008. Dr. Newman’s evaluation was prepared on March 9, 2011, then submitted to the court to support the proposition that Barefoot had regained sufficient competency to be tried. Dr. Newman concluded that “Barefoot is able to understand the nature and consequences of the proceedings against him and to assist properly in his defense. We view him as competent to stand trial with representation by his attorney.” J.A. 905 (emphasis added). Barefoot maintains that the district court, in determining whether he was able to adequately represent himself in April 2012, could not have reasonably relied on Dr. Newman’s opinion given more than a year previously. But Barefoot offered no evidence of his own in counterpoint. Further, Barefoot’s mental health had been at issue before the court, at the time of its ruling, for more than five years. Viewed in the context of the process at large— deliberate as it was—the court correctly declined to disregard Dr. Newman’s evaluation as stale per se. Rather, the district court was bound to consider all of the evidence together with any circumstances enhancing or detracting from its probative value, including its vintage, and to accord that evidence its commensurate weight." }, { "docid": "6754480", "title": "", "text": "Leslie Fay, and Terry Irwin, the manager of Leslie Fay’s budget, audit and tax department. Tr. 502. Falkowitz supposedly told Terwilliger “many, many times about Paul’s inaccuracies, false statements, and deceptions.” Tr. 549, 561. Terwilliger explained that both Falkowitz and Irwin had shared with him their frustrations in handling the audit function within the company because of the fact that the audit committee never met and that either Polishan or Kenia would consistently deny them access to information necessary to perform their internal audit duties. Terwilliger testified, “I know that Mr. Falkowitz had corresponded directly with Mr. Pomerantz and I believe also directly with Mr. Newman explaining to both at length the kinds of problems he was having in discharging the audit function within Leslie Fay because of Mr. Polishan’s interruptions and failure to provide information and general uncooperative nature.” Tr. 506. Terwilliger referred to a letter that Fal-kowitz had written to John Pomerantz both in draft and final form. He recalled the letter’s stating that Falkowitz was having personal difficulties performing the audit function and needed additional staff. When asked if Polishan’s name was mentioned in the letter, Terwilliger could not recall if it was. He said that he did recall that there was no mention of the use of plugged numbers or false financial statements. Terwilli-ger then recalled that there was a Falkowitz letter to Newman, Falkowitz’s superior, and further that he had seen that letter as well. Terwilliger testified that although Polishan’s name was not mentioned in that letter either, Falkowitz’s letter to Newman did reference Falkowitz’s inability to perform his audit function due to being denied access to records, financial statements, and the like. Tr. 518. However, even if Terwilliger’s recollection about Falkowitz’s letter to Newman is true, I cannot assume that Newman showed that letter to Pomerantz. And Terwilliger’s testimony about Falkowitz’s letter to Pomer-antz does not establish Pomerantz’s wrongdoing; at best it suggests that Pomerantz knew of Falkowitz’s personnel shortage. But that is not the allegation Terwilliger makes here; Terwilliger asserts that current senior management had actual knowledge of wrongdoing. The first time Terwilliger" }, { "docid": "22286836", "title": "", "text": "director of operations, determined that one full-time nonprofessional position in the rehabilitation department should be eliminated, and he consulted Sprenkle (who was on maternity leave) for assistance. She in turn recommended that Parkview eliminate the position of full-time physical therapy aide. Newman was the only employee holding that position. Effective February 19, 1993, the hospital laid off Newman and six other employees. On February 5,1994, Newman filed a complaint against Parkview in the district court, alleging that its decision to lay him off constituted unlawful discrimination under the ADA. Specifically, Newman alleged, among other things, that his layoff resulted from Sprenkle’s irritation with his medical need to combine the breaks. He contended that “[u]pon [his] exercise of his ability to continue his break consolidation, Ms. Sprenkle became belligerent in attitude with him.” Br. at 5. He further supported his complaint with certain allegations of actions that occurred after the layoff, which he contended demonstrated that Parkview’s proffered reasons for his layoff were pretextual. During pretrial discovery, Newman propounded interrogatories on Parkview seeking identification of each person Parkview believed had knowledge of his claims and each person it intended to call at trial. Newman also sought to learn the substance of each prospective witness’ testimony. Parkview responded by, among other things, referring to its self-executing disclosures, objecting to the scope of the interrogatory requests, and stating that it had not identified its trial witnesses. Its self-executing disclosures stated that: Defendant believes the following persons are reasonably likely to have information that bears significantly on the claims or defenses in this matter: Jennifer M. Brown Plaintiffs job performance; the Hospital’s attempts to accommodate Plaintiffs alleged disability; Hospital-wide layoff of February, 1993; Hospital policies and procedures. Kamille Sprenkle Plaintiffs job performance; the decision to eliminate the position of full-time Physical Therapy Aid; conversations with Plaintiff regarding his request for an accommodation. Ernest Perilli Hospital-wide layoffs of February, 1993; Hospital policies and procedures. Newman claims that he never received this list and he further observes that the names and the substance of their testimony were not supplied in response to his interrogatories. Therefore, he" }, { "docid": "16751591", "title": "", "text": "that the trial court erred in failing to order a competency hearing when defendant failed to appear on the last day of trial. A trial court must order a hearing to determine the defendant's competency if information comes to the trial court’s attention that raises a bona fide doubt about the defendant’s competency to stand trial. Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815 (1966). A defendant is competent to stand trial if he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him. United States v. Smith, 521 F.2d 374, 377 (10th Cir.1975). Defendant suggests that a bona fide doubt about defendant’s competency arose when defendant did not appear in court on the last day of his trial. While Alan Dill, defendant’s attorney, was looking for defendant, Daniel Smith, an attorney assisting Dill, told the trial court that defendant had been unable to assist counsel in his defense because of his use of narcotics. The following exchange occurred: “MR. SMITH: Your Honor, initially we would object to continuing the trial without Mr. Newman; but another concern that I have and I know Mr. Dill has at this point in time — and we’ve had it since about last Thursday — and it has been increased every day during this trial. I can only say that in my mind — and I know in Mr. Dill’s mind — it’s very increased this morning with Mr. Newman not appearing — We attempted since last Thursday to discuss the various plea negotiations with my client, Mr. Zelinka, as well as with Mr. Newman. Mr. Newman was, we felt, not in a mental frame of mind because of what appears to us as the ingestion of narcotics to discuss the plea offers.. The first time that we saw Mr. Newman where he appeared to be able to intelligently discuss this type of thing was Monday morning. Every night since this trial started on Monday, Mr. Dill and" }, { "docid": "22253139", "title": "", "text": "finding that Newman treated Johnson less favorably than he had treated Caucasian coman-agers. Johnson and other employees testified by deposition that Newman refused to mentor or train Johnson, and instead ignored him. They also said that Newman did not introduce Johnson to department heads, criticized him in public, and blamed him for errors that occurred in areas that were the responsibility of other employees. Kroger seeks to minimize this evidence by emphasizing that Noyes was the decisionmaker, so that any bias exhibited by Newman was irrelevant. Although remarks made by an individual who has no authority over the challenged employment action are not indicative of discriminatory intent, the statements of managerial-level employees who have the ability to influence a personnel decision are relevant. Ercegovich, 154 F.3d at 354-55 (concluding that the plaintiff presented a genuine issue of material fact as to whether the manager in question was involved in the employer’s decision to eliminate the plaintiffs position without giving him the opportunity to transfer elsewhere). Newman not only supervised Johnson on a daily basis, but also spoke with Noyes about the problems she identified during her store visits in late 1995, assisted Noyes in preparing Johnson’s performance review in January of 1996, and consulted with Noyes prior to her ultimate decision to offer Johnson a new but diminished position. Based upon these facts, we conclude that a jury could reasonably find that Newman played a significant role in Noyes’s decisionmaking process. Kroger also contends that Newman’s concern about having an African-American comanager was an isolated statement that cannot support a finding of racial discrimination. See id. at 355 (“Isolated and ambiguous comments are too abstract, in addition to being irrelevant and prejudicial, to support a finding of age discrimination.”) (internal quotation marks and citation omitted). But Newman’s comment does not stand alone. Instead, the manner in which several employees observed him behave towards Johnson — behavior that was claimed to be distinct from his interaction with Caucasian comanagers — reinforces the possibility that Newman’s comment might have reflected racial animus. Id. at 356 (“[W]hen assessing the relevancy of an allegedly" }, { "docid": "7078026", "title": "", "text": "argued, and determined, and the case set down for trial on August 23, 1978. Late in July, preparation for trial was proceeding apace, and documents were being collected relating to the chain of title of the cars at issue. The application of the odometer statute with respect to cars destined for overseas shipment was the subject of research and discussion, since then, as now, Newman conceded the clocking with respect to such cars. According to Givens, the possibility of a viable defense turned upon the ultimate reach to be given the statute by the court and the ability of the government to establish the chain of title which was considered to be an essential element of its case. It was assumed that the government had obtained some evidence from one or more of the participants in the activities which were under indictment. Both Givens and Newman describe in substantially similar terms a meeting which may well have been the critical one to set the events in motion which gave rise to this action. Newman with dogged determination pressed Perito for a personal evaluation of the case seeking an answer to the question “what would you do if you were in my situation.” Perito refused to answer the question on the grounds of its impropriety and then finally acceded to the request by telling Newman that if he were Newman, he would seek to arrange a plea of guilty. It was obvious to all those present, as it was obvious at this trial, that this was not the answer that Newman anticipated or wanted to hear. This shock is the best evidence of the reality which was being unpleasantly thrust upon him at his request. As a consequence of compelling Perito to answer his inquiry, Newman sought new counsel. Gary asked Presti if he could arrange a consultation with Silver, to whom Gary had been introduced by Presti during a trip to the Kentucky horse sales earlier in the spring. Whether this introduction marked the first involvement in Newman’s affairs by Silver or not was the subject of conflicting testimony. Gary" }, { "docid": "23042726", "title": "", "text": "this proceeding, nor did .the District Court hold that it was. As to the $75,900 thereafter withdrawn by Newman, however, the record does not show that Schapiro ever received any part of it, and the referee did not purport so to find. The referee merely found that Schapiro had “notice” of Newman’s misappropriation and that he “approved” of it. This finding appears to have rested primarily on Schapiro’s admission on the stand that Newman had subsequently told him of the withdrawal and why it had been done, and that, on the basis of this explanation, he felt the withdrawal was justified. The natural import of this testimony would seem to be that Schapiro thought Newman was entitled to withdraw and hold the $75,900 until the difficulties which had arisen in the assignment of the International Paper account had been ironed out. In this, of course, he was legally mistaken, for the corporation and not Newman had become the legal owner or legal holder of the $100,-000 at the time the General Properties deal was closed and the new stock was issued for it. Schapiro’s acceptance of the $24,000 from Newman in payment of Newman’s alleged personal debt, when the corporation was insolvent, when he knew that Newman had no authority to use the funds for any such purpose, and while he was still the owner of the corporation’s capital stock, would in our opinion constitute an inequity against general creditors in the bankruptcy situation, of which cognizance could properly be taken, in an appropriate manner, on any invocation by Schapiro of the equitable jurisdiction of the court in relation to its administration of the assets — • such as the filing of a claim to share in the distribution of the estate. As to the $75,- 900 later withdrawn by Newman, however, of which Schapiro had received no part, the wrong to general creditors lay in Newman’s withdrawal and retention of the funds, and not in Schapiro’s subsequent knowledge and mental sanction of what Newman had done. It does not appear that Schapiro ever ran the business of the corporation," }, { "docid": "20890695", "title": "", "text": "adequate waiver. Id. Angel. Angel Rodriguez seemed to understand the possible conflict, acknowledged that he had the right to separate counsel, and nonetheless wanted Golburgh to represent him. Given the court inquiry and Angel’s narrative responses, the record establishes that Angel consented to the joint representation. Santiago. Santiago Rodriguez believed that there would be no important conflict of interest and insisted that Golburgh represent him. The Court expressly informed Santiago of some of the risks and of his right to separate counsel. The most difficult issue concerns whether Santiago knew of his right to separate counsel, because he did not respond to the judge’s question on this point. Nevertheless, a review of “the particular facts and circumstances surrounding the case” shows that Santiago was aware of this right. Santiago’s insistence on Golburgh, which came shortly after the judge’s remarks on the right to separate counsel, shows that Santiago had a “clear, unequivocal, and unambiguous” understanding of his option to have alternative representation. The record supports the government’s claim that Angel and Santiago made informed decisions to retain Golburgh. As a result of these decisions, defendants waived any claims resulting from an adverse conflict of interest in this joint representation. The judgment of the District Court is AFFIRMED. . Defendants also argue that the district court abused its discretion in failing to sever their trials, that the court erred in admitting kidnapping evidence and coconspirator statements, that the evidence was insufficient to support the convictions, that a material variance existed between the conspiracy charge and evidence presented at trial, and that one of the sentences was infirm. These contentions lack merit. . At trial, Golburgh’s defense strategy focused on challenges to the credibility of government witnesses and did not distinguish among these three co-defendants. . Defendants also advance a different kind of conflict of interest issue. They say that Arthur Newman, a disbarred attorney, was closely associated with Golburgh in the defense and that Newman, as a potential witness and possible coconspirator, was disqualified from representing defendants. Therefore, defendants say Golburgh was also disqualified. See generally United States v. Tatum, 943" } ]

[ { "docid": "7446702", "title": "", "text": "to alleged negligence by the power company in failing to minimize its costs by diversifying its sources of power. Functionally, it was a remedial order. Indeed, in effect though not in legal form it was “punishment” for past misconduct by the firm. A state has, as we have been at pains to stress, a strong interest in punishing its malefactors, and this whether the punishment takes the form of a rate order or of a seizure of contraband or of a criminal sanction. The ratemaking order in NOPSI might therefore have been analogized to the disciplinary proceeding in Mid-dlesex. No such analogizing to Middlesex (or to Dayton Christian Schools) is possible here. The critical element of misconduct — emphasized ad nauseam not only in this opinion but in our earlier opinion in Illinois v. General Electric Co., supra, 683 F.2d at 213 — is missing. We repeat the holding of that decision: Younger is confined to cases in which the federal plaintiff had engaged in conduct actually or arguably in violation of state law, thereby exposing himself to an enforcement proceeding in state court which, once commenced, must be allowed to continue uninterrupted to conclusion (if no state proceeding is ever commenced, there is of course no Younger bar). This is not such a case. Within the potential domain of Younger marked out by this distinction, there are additional limits illustrated by NOPSI, but we need not consider their bearing. We note, finally, that decisions from other circuits support our result. Ford Motor Co. v. Insurance Commissioner, 874 F.2d 926, 933-35 (3d Cir.1989); Kercado-Melendez v. Aponte-Roque, 829 F.2d 255, 258-62 (1st Cir.1987). The decision of the district court in Indiana, refusing to abstain, is affirmed (Nos. 89-2055, 89-2056); the decision of the district court in Wisconsin, abstaining, is reversed (No. 89-1655). EASTERBROOK, Circuit Judge, concurring. I join the court’s opinion but add a few words about the commissioners’ “concession” that they cannot evaluate the constitutionality of the laws they administer. How can a state “concede” that the Constitution is not supreme for its executive branch? The Supremacy Clause, Art. VI" } ]

[ { "docid": "4952728", "title": "", "text": "court must also consider whether any of Judge Hunter’s claims are general challenges to the constitutionality of the disciplinary rules. 1. Nature of Supreme Court Action The first issue is whether the action taken by the New Jersey Supreme Court in issuing a private reprimand to Judge Hunter was adjudicative or administrative. The “nature of a proceeding ‘depends not upon the character of the body but upon the character of the proceedings.’ ” Id. quoting Prentis, 211 U.S. at 226, 29 S.Ct. at 69. “The form of the proceeding is not significant. It is the nature and effect which is controlling.” Feldman, 460 U.S. at 482, 103 S.Ct. at 1314 (quoting In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795, cert. denied, 326 U.S. 807, 66 S.Ct. 94, 90 L.Ed. 491 (1945)). The United States Supreme Court has distinguished adjudicative and administrative functions in the following manner: A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of the subject of its power. Feldman, 460 U.S. at 477, 103 S.Ct. at 1312 quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908). In Feldman, the Supreme Court also recognized, but did not define, the category of ministerial acts. The Third Circuit, however, defines ministerial acts as “acts taken with respect to particular individuals based on the preferences of the actor; they do not involve application of preferences inscribed in existing law; nor do they involve the creation of a rule that will apply in the future.” Guarino v. Larsen, 11 F.3d 1151, 1157 (3d Cir.1993). In Feldman, the United States Supreme Court classified as adjudicative the decision of the District of Columbia Court of Appeals not to waive a bar admission rule which required applicants to graduate from an ABA approved law" }, { "docid": "15848252", "title": "", "text": "injunction hearing with the hearing on the merits, extended the TRO to September 10, 1987, the date set for the consolidated hearing, and invited the parties to brief the issue of whether abstention was appropriate. On September 9, the day before the consolidated hearing, Federal Express dismissed its state appeal. After hearing the matter on September 10 and 11, the Court granted the preliminary injunction for an indefinite period, took the decision on the merits under ad visement, and requested additional briefs on the issue of abstention. Although the abstention issued was argued squarely in the hearing and in the pre- and post-trial briefs, the Court did not reach the issue because it found the prerequisite to abstention, subject-matter jurisdiction, lacking. The Sixth Circuit reversed that holding, however, compelling this court now to address the abstention issue. Applying the traditional, three-step framework with sensitivity to the federalism concerns underlying Younger abstention, the Court finds that it must abstain from determining the merits of this dispute. Consequently, the Court dismisses plaintiffs claim and lifts the injunction against TPSC. I. THE STATE PROCEEDINGS CONSTITUTE AN “ONGOING JUDICIAL PROCEEDING”. Where the state proceeding “investigates, declares and enforces liabilities as they stand on present and past facts and under laws supposed already to exist,” it is judicial. NOPSI, — U.S. at -, 109 S.Ct. at 2519, 105 L.Ed.2d at 318 (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908)). Accord CSXT, 883 F.2d at 474. Both Federal Express and TPSC, agree, as they must, that the proceedings out of which this suit grew are “judicial,” as defined in NOPSI. The more difficult issue is whether the proceedings are “ongoing” given that plaintiff has dismissed its state appeal. As a general rule, the proper point of reference for determining whether state proceedings are “ongoing” is the date the federal complaint is filed. In Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987), the Court applied the day-of-filing rule and held that abstention was appropriate, even though the state proceedings" }, { "docid": "8075826", "title": "", "text": "the Middlesex test is that of “ongoing state judicial proceedings.” Id. The Plaintiff contends that the Michigan disciplinary proceedings are administrative proceedings, not judicial, and they therefore, fail the first part of the Middlesex test. The Supreme Court has reasoned, however, that the federalism concerns which gave rise to Younger and its progeny are fully applicable to non-criminal proceedings when important state interests are involved. Id. In New Orleans Public Service, Inc. v. Council of the City of New Orleans, the Supreme Court held that in determining whether an administrative proceeding is judicial in nature for purposes of Younger abstention, a court must examine the “nature of the final act.” 491 U.S. 350, 371, 109 S.Ct. 2506, 2520, 105 L.Ed.2d 298 (1989) (“NOPSI ”) (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226-27, 29 S.Ct. 67, 69-70, 53 L.Ed. 150 (1908)). The Court explained that “[a] judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.” Id. at 370, 109 S.Ct. at 2519 (quoting Prentis, 211 U.S. at 226, 29 S.Ct. at 69); see also CSXT, Inc. v. Pitz, 883 F.2d 468, 474 (6th Cir.1989), cert. denied, 494 U.S. 1030, 110 S.Ct. 1480, 108 L.Ed.2d 616 (1990). Because the Board is proceeding against Fieger to enforce its Rules of Professional Conduct, it is performing an adjudicative, as opposed to a legislative, function. It therefore, satisfies the first requirement for Younger abstention. Thus, under both Middlesex and NOPSI, the Michigan proceedings are judicial in nature for purposes of Younger abstention. The Plaintiff relies on the Sixth Circuit case, In re Grand Jury 89-4-72, 932 F.2d 481 (6th Cir.), cert. denied, 502 U.S. 958, 112 S.Ct. 418, 116 L.Ed.2d 438 (1991). In that case, the Michigan Attorney Grievance Commission requested disclosure of all the evidence that had been presented to a grand jury in a bribery ease and that might have related to criminal or unethical conduct by a Michigan lawyer. Id. at 482. The request was based on Federal Rule of Criminal Procedure 6(e)(3)(c)(i), an exception to" }, { "docid": "8075825", "title": "", "text": "that characterized the proceedings as “a travesty,” a “legalized lynching,” and “a kangaroo court.” Id. at 428, 102 S.Ct. at 2519. The district court abstained on the basis of Younger. The Third Circuit, however, reversed on the ground that the state bar disciplinary proceedings did not provide a meaningful opportunity to adjudicate constitutional claims. The Appellate Court viewed the proceedings as “administrative,” not “judicial.” Thus, the Supreme Court had before it virtually all the questions that we now face — a constitutional attack on the state disciplinary rules as well as its procedures. The Supreme Court reversed, enumerating the three-part test which forms the basis of our analysis today: 1) Do state bar disciplinary hearings within the constitutionally prescribed jurisdiction of the State Supreme Court constitute an ongoing state judicial proceeding; 2) do the proceedings implicate important state interests; and 3) is there an adequate opportunity in the state proceedings to raise constitutional challenges? Id, at 432, 102 S.Ct. at 2521. 1. The First Requirement: Ongoing State Judicial Proceedings The first requirement of abstention under the Middlesex test is that of “ongoing state judicial proceedings.” Id. The Plaintiff contends that the Michigan disciplinary proceedings are administrative proceedings, not judicial, and they therefore, fail the first part of the Middlesex test. The Supreme Court has reasoned, however, that the federalism concerns which gave rise to Younger and its progeny are fully applicable to non-criminal proceedings when important state interests are involved. Id. In New Orleans Public Service, Inc. v. Council of the City of New Orleans, the Supreme Court held that in determining whether an administrative proceeding is judicial in nature for purposes of Younger abstention, a court must examine the “nature of the final act.” 491 U.S. 350, 371, 109 S.Ct. 2506, 2520, 105 L.Ed.2d 298 (1989) (“NOPSI ”) (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226-27, 29 S.Ct. 67, 69-70, 53 L.Ed. 150 (1908)). The Court explained that “[a] judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.” Id. at 370, 109 S.Ct." }, { "docid": "8047053", "title": "", "text": "27 L.Ed.2d 625 (1971); see also In re Petition to Inspect & Copy Grand Jury Materials, 735 F.2d 1261, 1271 (11th Cir.), cert. denied, 469 U.S. 884, 105 S.Ct. 254, 83 L.Ed.2d 191 (1984). In addition, the function assigned to the Council suggests that it is analogous to a clerk or a bailiff, in that both assist in the process of orderly decisionmak-ing accomplished by the court. See 28 U.S.C. § 332(d)(1) (providing that each judicial council should make orders as necessary for the effective administration of justice). The presence of circuit and district judges on the Council adds nothing to our power. It would not matter if the Council were com posed of the nine members of the Supreme Court; when the Justices acted in their capacity as members of the Council, their power and role would be that of the Council, not of the Supreme Court. Even if the Judicial Council often or even primarily acts as a subordinate administrative body, it acted as a court in this ease. “‘A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.’” District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 477, 103 S.Ct. 1303, 1311, 75 L.Ed.2d 206 (1983) (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 224, 29 S.Ct. 67, 68, 53 L.Ed. 150 (1908)). That is exactly what the Council did here. See In re Petition, 735 F.2d at 1271 (holding that a judicial council disciplinary proceeding is closely analogous to a “judicial proceeding” within the meaning of Fed.R.Crim.P. 6(e)(3)(C)(i)). Other characteristics of the Council’s actions in this case suggest that this proceeding was judicial in nature. The Special Investigative Committee took sworn testimony and examined the records of actual cases. It issued an order transferring a case from one judge to another because of alleged misconduct, just as the circuits have done in the past. See, e.g., United States v. Jacobs, 855 F.2d 652, 656-57 (9th Cir.1988) (holding that a judge’s misconduct in a particular case warranted reassignment). The stigmatizing" }, { "docid": "19384485", "title": "", "text": "the Commission. However, the absence of certain features of court process does not necessarily render a proceeding other than a judicial proceeding. In New Orleans Public Service, Inc. (NOPSI) v. Council of City of New Orleans, 491 U.S. 350, 370-71, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989), the Supreme Court noted that a “judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.” Id. (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 53 L.Ed. 150 (1908)). Under this standard, the proceedings before the Commission are judicial. Under the second prong of the Middle-sex test, the question is whether the state proceedings implicate important state interests. While the parties vigorously dispute whether the Fair Dealing Act is designed to protect and further the public interest or protect the economic interests of certain Illinois distributors, states have the primary responsibility for regulating liquor distribution. The state has an important interest in regulating liquor distribution, and the Act implicates this interest. However, careful review of the cases applying Younger abstention convinces this court that abstention is not warranted here. In virtually any case in which a federal plaintiff is challenging the constitutionality of a state statute, there is a strong argument that an important state interest is implicated. After all, the state legislature and the governor have determined that the statute was important enough to be enacted. However, the Supreme Court has noted that Younger abstention is not “always appropriate whenever a civil proceeding is pending in a state court.” Pennzoil, 481 U.S. at 14 n. 12, 107 S.Ct. 1519. There must be something more than a state’s interest in the constitutionality of its own statutes for Younger to apply. The key question the Middlesex test is designed to answer is whether the state proceeding “is the type of proceeding to which Younger applies.” NOPSI, 491 U.S. at 367, 109 S.Ct. 2506. The Supreme Court noted that “our concern for comity and federalism has led us to expand the protection of Younger beyond state criminal" }, { "docid": "9884034", "title": "", "text": "781 F.2d 1448, 1449 (9th Cir.1986) (per curiam); Parkhurst v. State of Wyoming, 641 F.2d 775, 111 (10th Cir.1981). We need not consider the result here had plaintiff brought his federal action without petitioning for review to the SJC. Cf. Kercado-Melendez v. Aponte-Roque, 829 F.2d 255, 258-63 (1st Cir.1987) (plaintiff who chose not to appeal state administrative board’s decision may bring civil rights challenge in federal court), cert. denied, 486 U.S. 1044, 108 S.Ct. 2037, 100 L.Ed.2d 621 (1988); see also Thomas v. Texas State Bd. of Medical Examiners, 807 F.2d 453, 456 (5th Cir.1987) (similar); see generally Duty Free Shop v. Administration De Terrenos, 889 F.2d 1181, 1183 (1st Cir.1989) (purpose behind Younger abstention is a “reluctance to interfere with an ongoing state judicial proceeding.”) (emphasis added). In the present case, plaintiffs SJC petition is currently pending; for us to act now would clearly interfere with an ongoing judicial proceeding. See New Orleans Public Serv. v. Council of New Orleans, — U.S. —, 109 S.Ct. 2506, 2521, 105 L.Ed.2d 298 (1989) (administrative proceedings that are “judicial in nature ... should be regarded as ‘ongoing’ for the purposes of Younger abstention until state appellate review is completed_”) (Rehnquist, J. concurring) (citing Ohio Civil Rights Comm’n v. Dayton Schools, 477 U.S. 619, 629, 106 S.Ct. 2718, 2723, 91 L.Ed.2d 512 (1985)). B. Three-Part Test for Younger Abstention As stated supra, the Supreme Court has formulated a three-part inquiry to determine what kind of ongoing, noncriminal, state-initiated proceedings are entitled to a federal deference. See Middlesex County Ethics Committee, 457 U.S. at 432, 102 S.Ct. at 2521; Dayton Schools, 477 U.S. at 627-29, 106 S.Ct. at 2722-24 (1985). Without question the ongoing SJC review petition meets that test. First, the SJC proceedings are, of course, “judicial in nature” in that they involve “[a] judicial inquiry [that] investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.” New Orleans Public Service v. Council of New Orleans, 109 S.Ct. at 2519 (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct." }, { "docid": "4258365", "title": "", "text": "Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (civil enforcement action); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (nuisance action). Defendant argues that I should abstain, because to enjoin the Chief Judge of the Nineteenth Judicial Circuit from enforcing the Circuit’s local rule would be in direct violation of the precepts embodied in the Younger decision and “would represent a gross intrusion into the functions of Illinois state courts.” I disagree. Plaintiffs’ request that I examine the constitutionality of a rule promulgated by the state judges does not implicate Younger. Younger is confined to cases in which the federal plaintiff had engaged in conduct actually or arguably in violation of state law, thereby exposing himself to an enforcement proceeding in state court which, once commenced, must be allowed to continue uninterrupted to conclusion. Allegheny Corp. v. Hasse, 896 F.2d 1046, 1053 (7th Cir.1990). Plaintiffs contend that there are ongoing proceedings here, namely the case involving Jane Doe who is accused of DUI violations. But I do not believe that this is a judicial proceeding of the sort that Younger cautions should not be obstructed by the federal court. In considering the distinction between judicial and administrative or ministerial proceedings, the Supreme Court noted that “a judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist”, Prentis v. Atlantic Coast Line, 211 U.S. 210, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908). There is no such proceeding here, but rather an administrative act by which the Circuit Judge simply designates who is to evaluate the DUI defendant before any hearing and determination can ensue and this, I believe, does not require abstention under Younger. In fact, abstaining in this case would be contrary to the equally compelling teaching of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which authorizes a federal court to enjoin threatened state action that, if carried out, would violate the plaintiff’s federal rights. See Hasse, 896 F.2d at 1053. 2." }, { "docid": "4844480", "title": "", "text": "new rule of law or modifies, explains or criticizes an existing rule of law; or the decision resolves, creates, or avoids an apparent conflict of authority within the Appellate Court.” Seizing on this “new rule” language and what they characterize as the appellate court’s “unprecedented interpretation” of the Home Rule Provision, plaintiffs conclude that the Illinois Appellate Court adopted a “new rule of law.” There are several problems with this argument. In general terms, this argument would effectively undermine the Rooker-Feldman doctrine by allowing federal district and circuit courts to review directly the constitutional correctness of state court opinions. More specifically, the Illinois Appellate Court’s decision is simply not a “rule” of the type considered in Skinner. In Feldman itself, the Supreme Court made clear that the only “rules” that may be challenged independently in federal court are those that are “promulgated in a nonjudicial proceeding.” Feldman, 460 U.S. at 486, 103 S.Ct. 1303. The proceeding before the Illinois Appellate Court here was plainly judicial. The Supreme Court has explained the distinction between judicial and legislative proceedings as follows: A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation on the other hand looks to the future and changes existing conditions by making a new rule- to be applied thereafter to all or some part of those subject to its power. Feldman, 460 U.S. at 477, 103 S.Ct. 1303, quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 53 L.Ed. 150 (1908). The district court correctly applied this test and found that the Illinois Appellate Court conducted a judicial inquiry. It decided liabilities on present facts — the validity of an existing amendment to the Chicago Zoning Ordinance as challenged by owners of nearby property — and under existing Illinois law. Plaintiffs argue that the appellate court created a “new rule” because, in their view, the prior Illinois cases cited by the appellate court are distinguishable because they did not involve due process claims. Plaintiffs’" }, { "docid": "9884035", "title": "", "text": "are “judicial in nature ... should be regarded as ‘ongoing’ for the purposes of Younger abstention until state appellate review is completed_”) (Rehnquist, J. concurring) (citing Ohio Civil Rights Comm’n v. Dayton Schools, 477 U.S. 619, 629, 106 S.Ct. 2718, 2723, 91 L.Ed.2d 512 (1985)). B. Three-Part Test for Younger Abstention As stated supra, the Supreme Court has formulated a three-part inquiry to determine what kind of ongoing, noncriminal, state-initiated proceedings are entitled to a federal deference. See Middlesex County Ethics Committee, 457 U.S. at 432, 102 S.Ct. at 2521; Dayton Schools, 477 U.S. at 627-29, 106 S.Ct. at 2722-24 (1985). Without question the ongoing SJC review petition meets that test. First, the SJC proceedings are, of course, “judicial in nature” in that they involve “[a] judicial inquiry [that] investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.” New Orleans Public Service v. Council of New Orleans, 109 S.Ct. at 2519 (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908)). Second, the issues at stake — involving the enforcement of proper standards of medical licensure — obviously implicate important state interests. See Thomas v. Texas State Board of Medical Examiners, 807 F.2d 453, 455 (5th Cir.1987) (“[T]he state, through its Bd. of Medical Examiners, possesses a great interest in the outcome of the litigation, for it seeks to assure the competency of physicians who practice in its borders.”); Cf. Middlesex, 457 U.S. at 434-35, 102 S.Ct. at 2522-23 (attorneys); Allen v. Louisiana State Bd. of Dentistry, 835 F.2d 100, 103 (5th Cir.1988) (dentists); Parker v. Commonwealth of Kentucky Bd. of Dentistry, 818 F.2d 504, 508 (6th Cir.1987) (same). Finally, the review proceedings before the SJC provide an adequate opportunity to raise federal constitutional challenges. See Dayton Schools, 477 U.S. at 629, 106 S.Ct. at 2723 (“[I]t is sufficient under Middlesex that constitutional claims may be raised in state-court judicial review of the administrative proceeding.”). The SJC reviews the Board’s decisions in part for constitutional error, see Mass.Gen.L. ch. 30A," }, { "docid": "10498966", "title": "", "text": "462, 103 S.Ct. 1303, 75 L.Ed.2d 206 (1983), the Court discussed the distinction between judicial and administrative or ministerial proceedings. Feldman involved a federal suit by two lawyers challenging the refusal of the District of Columbia Court of Appeals to admit them to the bar. The significance of such a distinction is that an order emanating from a judicial proceeding of a state supreme court is not reviewable by a federal district court, but an administrative or ministerial order may be reviewable if a valid constitutional claim exists. In its discussion, the Feldman Court relied upon Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150 (1908), for guidance in determining the nature of a proceeding. The issue before the Prentis Court was whether a federal district court was free to enjoin the implementation of a rate order imposed by the District of Columbia Court of Appeals. The Prentis Court stated that “[a] judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed to exist. That is its purpose and end.” Id. at 226, 29 S.Ct. at 69. The Court found that the commission’s determination of a rate was legislative as opposed to adjudicative because the decision looked to the future and changed existing conditions by making a new rule to be applied thereafter. Id. The Court suggested that the nature of the proceeding “depends not upon the character of the body but upon the character of the proceedings.... The nature of the final act determines the nature of the previous inquiry.” Id. at 226-27, 29 S.Ct. at 69-70 (citing Ex parte Virginia, 100 U.S. 339, 348, 25 L.Ed. 676 (1880)). The Feldman Court also relied upon In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed. 1795 (1945) in its determination regarding the existence of a case or controversy. In Summers, the petitioner sought review of the Supreme Court of Illinois’s denial of petitioner’s prayer for admission to the practice of law in that state. The Court noted that even though the law of" }, { "docid": "4258364", "title": "", "text": "1428, 1433, 51 L.Ed.2d 752 (1977) (citing Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)). And a district court should not shirk its obligation to exercise jurisdiction where a case may properly be adjudicated. See Cohens v. Virginia, 19 U.S. 264, 5 L.Ed. 257 (1821). 1. Younger Abstention In Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 751, 27 L.Ed.2d 669 (1971), the Supreme Court held that the federal district court could not intervene in an ongoing criminal proceeding in state court and noted that the “normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions”. Younger applied the abstention doctrine to a state criminal proceeding, but the doctrine has since been expanded to apply to quasi-criminal, civil, and administrative proceedings. E.g., Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982) (Younger policies fully applicable to noncriminal judicial proceeding when important state interests are involved); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977) (civil enforcement action); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (nuisance action). Defendant argues that I should abstain, because to enjoin the Chief Judge of the Nineteenth Judicial Circuit from enforcing the Circuit’s local rule would be in direct violation of the precepts embodied in the Younger decision and “would represent a gross intrusion into the functions of Illinois state courts.” I disagree. Plaintiffs’ request that I examine the constitutionality of a rule promulgated by the state judges does not implicate Younger. Younger is confined to cases in which the federal plaintiff had engaged in conduct actually or arguably in violation of state law, thereby exposing himself to an enforcement proceeding in state court which, once commenced, must be allowed to continue uninterrupted to conclusion. Allegheny Corp. v. Hasse, 896 F.2d 1046, 1053 (7th Cir.1990). Plaintiffs contend that there are ongoing proceedings here, namely the case involving Jane Doe who is accused of DUI violations. But I" }, { "docid": "15848253", "title": "", "text": "against TPSC. I. THE STATE PROCEEDINGS CONSTITUTE AN “ONGOING JUDICIAL PROCEEDING”. Where the state proceeding “investigates, declares and enforces liabilities as they stand on present and past facts and under laws supposed already to exist,” it is judicial. NOPSI, — U.S. at -, 109 S.Ct. at 2519, 105 L.Ed.2d at 318 (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908)). Accord CSXT, 883 F.2d at 474. Both Federal Express and TPSC, agree, as they must, that the proceedings out of which this suit grew are “judicial,” as defined in NOPSI. The more difficult issue is whether the proceedings are “ongoing” given that plaintiff has dismissed its state appeal. As a general rule, the proper point of reference for determining whether state proceedings are “ongoing” is the date the federal complaint is filed. In Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987), the Court applied the day-of-filing rule and held that abstention was appropriate, even though the state proceedings had run their course by the time the matter reached the Supreme Court and dismissal would leave Texaco without any state remedy. 481 U.S. at 17-18, 107 S.Ct. at 1529-30. Similarly, in Zalman v. Armstrong, 802 F.2d 199 (6th Cir.1986), the court held that “the proper time of reference for determining the applicability of Younger abstention is the time the federal complaint is filed.” Id. at 204. The court vacated the District Court’s judgment in favor of the federal plaintiff, even though the state criminal proceedings against him had been dismissed before the appeal was filed. Id. at 206-07. See also Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975) (rejecting argument that state judicial proceedings had ended by time federal complaint was filed); Steffel v. Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 1217, 39 L.Ed.2d 505 (1974) (holding that Younger principles did not apply where no state criminal proceeding is pending when federal complaint is filed); Thomas v. Texas State Bd. of Medical Exam., 807 F.2d 453 (5th" }, { "docid": "4258366", "title": "", "text": "do not believe that this is a judicial proceeding of the sort that Younger cautions should not be obstructed by the federal court. In considering the distinction between judicial and administrative or ministerial proceedings, the Supreme Court noted that “a judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist”, Prentis v. Atlantic Coast Line, 211 U.S. 210, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908). There is no such proceeding here, but rather an administrative act by which the Circuit Judge simply designates who is to evaluate the DUI defendant before any hearing and determination can ensue and this, I believe, does not require abstention under Younger. In fact, abstaining in this case would be contrary to the equally compelling teaching of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which authorizes a federal court to enjoin threatened state action that, if carried out, would violate the plaintiff’s federal rights. See Hasse, 896 F.2d at 1053. 2. Burford Abstention Plaintiffs argue, alternatively, that the Burford abstention doctrine is applicable here. Simply stated, Burford requires a federal court to avoid needless conflict with the administration by a state of its own affairs. Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) (challenge to state-wide regulatory system which court found important to state policy of conserving gas and oil as well as having an impact on the economy of the State of Texas). For example, if the issue involves a specialized aspect of a complicated regulatory scheme of local law and review by the federal court “would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial concern”, then Burford abstention is proper. Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 1244, 47 L.Ed.2d 483 (1976). Here, defendant argues that the local rule and its application is intricately tied to the Alcoholism and Other Drug Dependency Act, as well as the Illinois Vehicle Code. Both" }, { "docid": "12972103", "title": "", "text": "Allstate, however, does not persuasively argue that the principles explicated in Feldman are not applicable here. Although the West Virginia Supreme Court of Appeals has not itself issued a final decision on the committee’s decision with respect to Allstate’s conduct, we nevertheless hold that the Rooker-Feldman doc trine prevents the district court from exercising subject matter jurisdiction. In conducting this analysis, we are mindful of the weight given by the Supreme Court to federal-state comity concerns that arise out of federal review of state bar proceedings and to the “strength of the state interest in regulating the state bar.” Feldman, 460 U.S. at 484 n. 16, 108 S.Ct. 1308 (quoting Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975) (stating that “[t]he interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been officers of the courts”)). The first question that we must answer is whether the Committee’s proceedings qualify as judicial actions as opposed to administrative or ministerial processes. As the Feldman Court explained: “[a] judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.... Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.” Feldman, 460 U.S. at 477, 103 S.Ct. 1303 (quoting Prentis v. Atlantic Coast Line, 211 U.S. 210, 226, 29 S.Ct. 67, 53 L.Ed. 150 (1908)). In evaluating the committee’s proceedings to assess their judicial character, we examine the nature and effect of the proceeding and not the form of it. See Feldman, 460 U.S. at 478, 103 S.Ct. 1303 (quoting Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 819, 6 L.Ed. 204 (1824)). We are of opinion that the committee’s actions and opinion are of a judicial rather than administrative character. The subcommittee which conducted the hearing was a sub-committee of the committee" }, { "docid": "9910019", "title": "", "text": "seeking relief from the past state actions, but relief from the prospective enforcement of the statute. Id. at 709-11, 97 S.Ct. 1428. Here, Executive Arts perceived the possibility of the prospective future enforcement of the zoning law against itself once the state court had declared Executive Arts to be a regulated use under the City’s zoning law, preemptively filing in federal court attacking the constitutionality of the Ordinance before any enforcement action could occur. It is true that Executive Arts’s initial complaint asked for inappropriate relief that would clearly have interfered with the ongoing state judicial proceedings, particularly the request for a declaration that no variance was required and that the state court’s interpretation of the zoning statute was wrong. However, the district court required Executive Arts to amend the complaint to focus upon the constitutionality of the final legislated ordinance rather than the ongoing state proceedings. Therefore, “[a]s a challenge to completed legislative action, [Executive Arts’s] suit represents neither the interference with ongoing judicial proceedings against which Younger was directed, nor the interference with an ongoing legislative process against which [the] ripeness holding in Prentis [v. Atlantic Coast Line Co., 211 U.S. 210, 29 S.Ct. 67, 53 L.Ed. 150 (1908)] was directed.” New Orleans Public Service, Inc., 491 U.S. at 372, 109 S.Ct. 2506. In an even murkier case for Younger abstention than the one presently before us, the Supreme Court stated with regard to a federal statutory challenge to an administrative body’s ongoing rate-making policies that “[the constitutional challenge] is, insofar as our policies of federal comity are concerned, no different in substance from a facial challenge to an allegedly unconstitutional statute or zoning ordinance— which we would assuredly not require to be brought in state courts.” Id. In this case, the substantive content to which the Supreme Court referred, an allegedly unconstitutional zoning ordinance, is directly at issue. Therefore, while ,“[i]t is true, of course, that the federal court’s disposition of [this] case may well affect, or for practical purposes, pre-empt, a future — or ... even a pending — state-court action ... there is no doctrine" }, { "docid": "8047054", "title": "", "text": "declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.’” District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 477, 103 S.Ct. 1303, 1311, 75 L.Ed.2d 206 (1983) (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 224, 29 S.Ct. 67, 68, 53 L.Ed. 150 (1908)). That is exactly what the Council did here. See In re Petition, 735 F.2d at 1271 (holding that a judicial council disciplinary proceeding is closely analogous to a “judicial proceeding” within the meaning of Fed.R.Crim.P. 6(e)(3)(C)(i)). Other characteristics of the Council’s actions in this case suggest that this proceeding was judicial in nature. The Special Investigative Committee took sworn testimony and examined the records of actual cases. It issued an order transferring a case from one judge to another because of alleged misconduct, just as the circuits have done in the past. See, e.g., United States v. Jacobs, 855 F.2d 652, 656-57 (9th Cir.1988) (holding that a judge’s misconduct in a particular case warranted reassignment). The stigmatizing effect of the comments issued in the context of the Judicial Council’s order support an analogy to disbarment proceedings, which courts have characterized as judicial. In re Palmisano, 70 F.3d 483, 484-85 (7th Cir.1995) (characterizing disbarment proceedings as judicial while deciding whether an appeal from such proceedings lies to the circuit or to the circuit council), cert. denied, — U.S. -, 116 S.Ct. 1854, 134 L.Ed.2d 954 (1996). In this regard, it is no accident that all members of the judicial councils enjoy Article III status; separation of powers principles might not permit a body otherwise composed to exercise some of the powers the Council has at its disposal, including those exercised in this case. Whether the Judicial Council is an arm of the executive branch or the judiciary is irrelevant to the question of our appellate jurisdiction. See Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 224, 29 S.Ct. 67, 68, 53 L.Ed. 150 (1908) (defining a “judicial inquiry”). Even if the Council functioned as an Article III body — a conclusion that" }, { "docid": "23545594", "title": "", "text": "State court.” Thus, we have held that the Act does not apply to state administrative proceedings. See American Motors Sales Corp. v. Runke, 708 F.2d 202, 204 (6th Cir.1983). The Supreme Court has held that the Act forbids the use of a federal injunction “to stay litigation in a state court” or, in other words, to interfere with the decision of a legal controversy in a state court. See Roudebush v. Hartke, 405 U.S. 15, 20, 92 S.Ct. 804, 808, 31 L.Ed.2d 1 (1972). In Roudebush, the plaintiff asked a federal court to enjoin a recount of an election for the United States Senate. The recount had been ordered by an Indiana state court. The Supreme Court held that the state court order was not the kind of state proceeding to which the Act applied. The Court explained that a nonenjoinable “proceeding” under the Act is that which involves the performance of a “judicial inquiry.” See id. at 20-21, 92 S.Ct. at 808-09. “A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.” Id. at 21, 92 S.Ct. at 809 (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908)). Since the duty of the state court in ordering the recount could be characterized “as ministerial, or perhaps administrative,” it was not a “proceeding in State court” within the meaning of the Act. Id. The question, then, is whether the arbitration proceeding involved in this case is a “proceeding in State court” within the meaning of the Act. We conclude that it is not. Arbitration is a private dispute resolution mechanism instituted pursuant to an agreement between the parties. It occurs predominantly outside, and in lieu of, court proceedings. Here, both Cafcomp and ARN voluntarily submitted to the arbitration. Additionally, the arbitration was governed by a private agreement to arbitrate disputes. We believe that under these circumstances, the arbitration proceeding involved in this case is not a “proceeding in State court” within the meaning of the Act. Moreover," }, { "docid": "19384484", "title": "", "text": "Pullman abstention - avoiding unwarranted determination of federal constitutional questions - may also weigh in favor of Younger abstention. The Court held that “it was entirely possible that the Texas courts would have resolved this case on state statutory or constitutional grounds, without reaching the federal constitutional questions Texaco raises in this ease.” Pennzoil, 481 U.S. at 12, 107 S.Ct. 1519. The Seventh Circuit has applied the three-part Middlesex test on several occasions. See, e.g., Crenshaw v. The Supreme Court of Indiana, 170 F.3d 725, 727-28 (7th Cir.1999); Majors v. Engelbrecht, 149 F.3d 709, 711-14 (7th Cir.1998). As to the first prong of the test, this court finds that the proceedings before the Illinois Liquor Control Commission are judicial in nature. The plaintiffs argue that the proceedings are not judicial because they lack some of the procedural protections of court proceedings. In particular, they complain that, with little or no evidentiary support, the Commission issued ex parte nonreviewable orders requiring them to continue providing products to the distributors during the pendency of the proceedings before the Commission. However, the absence of certain features of court process does not necessarily render a proceeding other than a judicial proceeding. In New Orleans Public Service, Inc. (NOPSI) v. Council of City of New Orleans, 491 U.S. 350, 370-71, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989), the Supreme Court noted that a “judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.” Id. (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 53 L.Ed. 150 (1908)). Under this standard, the proceedings before the Commission are judicial. Under the second prong of the Middle-sex test, the question is whether the state proceedings implicate important state interests. While the parties vigorously dispute whether the Fair Dealing Act is designed to protect and further the public interest or protect the economic interests of certain Illinois distributors, states have the primary responsibility for regulating liquor distribution. The state has an important interest in regulating liquor distribution, and the Act implicates this" }, { "docid": "12972104", "title": "", "text": "as opposed to administrative or ministerial processes. As the Feldman Court explained: “[a] judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist.... Legislation on the other hand looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power.” Feldman, 460 U.S. at 477, 103 S.Ct. 1303 (quoting Prentis v. Atlantic Coast Line, 211 U.S. 210, 226, 29 S.Ct. 67, 53 L.Ed. 150 (1908)). In evaluating the committee’s proceedings to assess their judicial character, we examine the nature and effect of the proceeding and not the form of it. See Feldman, 460 U.S. at 478, 103 S.Ct. 1303 (quoting Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 819, 6 L.Ed. 204 (1824)). We are of opinion that the committee’s actions and opinion are of a judicial rather than administrative character. The subcommittee which conducted the hearing was a sub-committee of the committee on Unlawful Practice of Law of the State Bar and was comprised of a circuit judge and two attorneys. It received and investigated the complaint filed against Allstate alleging that circulating its flier was the unlawful practice of law. The sub-committee held a hearing in which it heard argument and examined the facts and exhibits concerning the accused pamphlet. The full committee then analyzed the facts under the West Virginia State bar’s definition of the practice of law and considered various state-court precedents defining conduct that was found to be the unauthorized practice of law. The committee then rendered its written opinion and decision in which it concluded that the dissemination of the pamphlet constituted the unlawful practice of law as defined by the West Virginia Supreme Court of Appeals. See W.Va.Code §§ 51-l-4a. The Committee then denied Allstate’s petition for reconsideration and sought Allstate’s agreement to act in accordance with its opinion. These proceedings were not ministerial or legislative. Rather, the committee investigated the claims against Allstate, applied the State Bar’s regulations and state" } ]

[ { "docid": "15683709", "title": "", "text": "in issue and recommend the judgment to be entered thereon; * * * to do all things and to make such orders as may be required to accomplish a full hearing on all matters of fact and law in issue, * * * as fully and completely as though this reference had not been made and as though this cause had been tried before the Court, reserving to the Court the full right and power to review and determine all questions of fact and law,” etc. The master found that the appellees’ “article of manufacture and sale differs in no material detail from the device of the patent,” and that it is “intended for use in the same manner.” It seems clear that, if tho appellant’s patent is valid, the appellees’ welding rod is an infringement of it. Our own independent examination of the two rival devices, which are part of the exhibits before us, has convinced us of their virtual identity. The defenses relied upon by the appellees, as enumerated in the briefs and in the master’s report, were as follows: (1) There is no invention disclosed; (2) the patent was obtained by fraud; (3) the invention was not joint in nature; (4) the subject-matter of the patent was first invented by the appellee Mills. The master found in favor of the appellees on the first defense — -lack of invention on the part of the appellant’s welding tube— and found against the appellees on the other three defenses. Accordingly, he recommended that a decree be entered finding the appellant’s letters patent invalid. Both sides filed exceptions to the master’s report, and all exceptions were by the court overruled and disallowed. The court below entered a final decree adopting the master’s findings of fact and conclusions of law, and adjudging the appellant’s letters patent to be invalid. From that decree the present appeal was taken. Under our view of the ease, it is necessary to consider only the defense in which the appellee’s position was sustained by the master and the court below; namely, that the appellant’s patent was" } ]

[ { "docid": "11095979", "title": "", "text": "that no question of infringement or validity turned on any close construction of the patent claims. However, this language was not used inadvisedly. In Buckeye Incubator Co. v. Petersime, District Judge Hiekenlooper had occasion to consider closely the construction of these patent claims, and held that they were not infringed by a device or hatching method similar in its principle of operation to defendant’s. That case is now pending on appeal. In Buckeye Incubator Co. v. Cooley, supra, Judge Woolley, in discussing the prior art, uses this language: “More important still, there Was no arrangement for establishing and regulating currents of heated air and, similarly, no provision for obtaining uniformity of temperature other than that initially provided by the heating means. Moreover it should be noted that the heated air, like the wind, would go where it listeth, and, accordingly, it acted as it pleased.” In the present ease, at the hearing and before seeing Judge Woolley’s opinion, a similar expression was used by me in describing the operation of defendant’s apparatus. Judge Woolley, in describing Smith’s hatching method, uses this language: “He, too, set eggs in trays arranged in tiers and inclosed them in a chamber, and he also provided artificially heated air by a motor driven fan positioned at the top of the chamber, but he established an air current and regulated its direction by arranging the tiers of trays in two columns parallel with and separated from each other so as to form between them a central corridor, and placed partitions or curtains from the top to a short distance from the bottom of the tiers and directed the air current downwardly, not through the eggs, but through the corridor where it mushroomed on the floor, spread beneath the tiers, ascended through the egg trays and escaped through definitely arranged air outlets. By so controlling the current of heated air Smith claims, and we think correctly, that he is enabled to attain unif ormity of temperature in its movement.” Even if all these expressions were used in a situation not requiring an exact determination of Smith’s method" }, { "docid": "11095978", "title": "", "text": "infringement. This conclusion finds support in my previous opinion, as well as in the opinions of other judges who have had occasion to examine the art and consider Smith’s patent. In Buckeye Incubator Co. v. Wolf (D. C.) 291 F. 255, describing Smith’s hatching method, I used this language: “The principle of operation and the hatching method for which this apparatus is designed consist in forcing mechanically a draft of heated air downwardly through the central corridor, where it passes below the bottom of the partition or curtains and ascends through the column of egg trays to the exit at the top of the respective egg chambers. Part of the foul air is permitted to escape through the air exits, and additional fresh air is drawn in through the air inlets and returned through the central corridor and the egg chambers. A cycle of forced circulation of air through definite channels, it is said, is thereby obtained.” As already said, I should not feel bound thereby, if my present opinion were otherwise, for the reason that no question of infringement or validity turned on any close construction of the patent claims. However, this language was not used inadvisedly. In Buckeye Incubator Co. v. Petersime, District Judge Hiekenlooper had occasion to consider closely the construction of these patent claims, and held that they were not infringed by a device or hatching method similar in its principle of operation to defendant’s. That case is now pending on appeal. In Buckeye Incubator Co. v. Cooley, supra, Judge Woolley, in discussing the prior art, uses this language: “More important still, there Was no arrangement for establishing and regulating currents of heated air and, similarly, no provision for obtaining uniformity of temperature other than that initially provided by the heating means. Moreover it should be noted that the heated air, like the wind, would go where it listeth, and, accordingly, it acted as it pleased.” In the present ease, at the hearing and before seeing Judge Woolley’s opinion, a similar expression was used by me in describing the operation of defendant’s apparatus. Judge Woolley, in" }, { "docid": "11095965", "title": "", "text": "doors or other openings.” Smith solved the problem and procured and kept uniformity of temperature in the manner described in our former opinion. Briefly stated, he devised a central corridor or chamber, with two egg or hatching chambers, one on each side of and separated from the central corridor by partitions, with openings both at the bottom and the top of the corridor partitions to allow for the circulation of air. In this central corridor he placed fans and. heating units. In operation the air is forced downward through the central corridor, heated by steam coils or radiators therein, mushroomed against the floor, and passes in both directions under the bottoms of the partition, whence it ascends through the column of egg trays, and back into the central corridor through openings at the partition tops. By this means, air is driven or circulated at all times through channels more or less restricted, and is delivered first to eggs in the advanced stage of incubation, carrying away from them heat units and delivering the same to eggs in a less advanced stage. Even if not so stated, this method necessarily implies that the air current should play first upon the eggs in the most advanced stage. The apparatus claims call for the elements of a device thus constructed and functioning strictly in conformity to these principles. The method or process claims need not necessarily be so limited. However, claim 3, and also, in my opinion, claim 2, of the method claims in issue, call for a process limited to this exact series of steps. Claim 1, above quoted, is broader. Plaintiff contends that Smith’s method and claim 1 are broad enough to include any hatching method whereby eggs in different stages of incubation are inclosed in the same incubator chamber, and air is so agitated that heat units given off by eggs in the advanced stage will be diffused throughout the chamber and around eggs in a less advanced stage. Defendant, on the other hand, contends that claim 1 calls for a process only, which requires the application of a current" }, { "docid": "22370917", "title": "", "text": "about $24,-000,000, having a total egg capacity of over 188,000,000. The old type of incubator, with eggs arranged at a single level, all in a single stage of incubation, has thus become obsolete. That the method employed in the Smith type of incubator was novel and revolutionary in the industry is not challenged. The question presented here is what scope may rightly be given to Claim 1 of the patent; whether the petitioner has drafted it in such form as to secure the fruits of his invention. Claim 1 reads as follows: “ 1. The method of hatching a plurality of eggs by arranging them at different levels in a closed chamber having restricted openings of sufficient capacity for the escape of foul air without undue loss of moisture and applying a current of heated air, said current being created by means other than variations of temperature and of sufficient velocity to circulate, diffuse and maintain the air throughout the chamber at substantially the same temperature, whereby the air will be vitalized, the moisture conserved and the units of heat will be carried from the eggs in the more advanced stage of incubation to those in a less advanced stage for the purpose specified.” It will be observed that the claim, standing by itself, asserts the essential elements of the method of incubation to be: (a) the arrangement of the eggs at different levels in staged incubation in a closed chamber, having restricted openings of sufficient capacity for the escape of foul air without undue loss of moisture; (b) the application to the eggs of heated air in a current created by means other than variation of temperature; and (c), as marking the boundaries of the claim, the current of air is to be of sufficient velocity to circulate, diffuse and maintain the air throughout the chamber at substantially the same temperature whereby the air will be vitalized, moisture conserved, and the units of heat carried from the eggs in the more advanced stage to those in the less advanced. To avoid petitioner’s charge of infringement two main contentions are" }, { "docid": "16182961", "title": "", "text": "the eggs to a “column of air,” to moving the eggs to a different position “with reference to the forced circulation of hot air,” to forcing the air “to pass between the different eggs” which will in effect “act as a cooling medium” for the more advanced eggs, all of which contemplate a defined current of air by which certain eggs may be cooled and given the additionally needed oxygen, and others may be warmed by the heat units which the current carries from the more advanced eggs. The file wrapper history of Smith’s patent tends to support the same conclusion. This conception of a current of air driven in a definite or predetermined direction is different, we think, from the Petersime process, by which diffusion of heat units and uniformity of temperature is obtained by the slow stirring or agitation of the air in the egg chamber. Judgment affirmed. 1. The method of hatching a plurality of eggs by arranging them at different levels in a closed chamber, having restricted openings of sufficient capacity for the escape of foul air without undue loss of moisture, and applying a current of heated air, said current being created by means other than variations of temperature and of sufficient velocity to circulate, diffuse, and maintain the air throughout the chamber at substantially the same temperature, whereby the air will be vitalized, the moisture conserved, and the units of heat will be carried from the eggs in the more advanced stage of incubation to those in a less advanced stage for the purpose specified. 2. The method of hatching a plurality of eggs by arranging them at different levels in a closed chamber, having restricted openings of sufficient capacity for the escape of foul air without undue loss of moisture, and applying a power-driven current of heated air in an adjacent chamber through openings into the egg chamber, said current being of sufficient velocity to circulate, diffuse, and maintain the air throughout the egg chamber at substantially the same temperature, whereby the air will be vitalized, the moisture conserved, and the units of" }, { "docid": "22249586", "title": "", "text": "any particular manner other than that it should be of sufficient velocity to produce the results prescribed by the claim/5 Thus construed, infringement of the patented method could not be avoided nor anticipation of it denied by showing that the challenged use was with different arrangements of the eggs or with a different structure, for guiding or controlling the propelled current of air within the closed chamber, from any exhibited in the specifications and drawings of the patent. To establish the Hastings prior use respondents rely on the proof of his construction of an incubator in Brooklyn, New York, early in 1911, and its use in the hatching season in the early months of that year and of 1912, and on proof of his construction of another in Muskogee, Oklahoma, in 1911, and its use in 1912 and 1913. They offer documentary corroboration in more or less contemporary articles in published journals and in a patent application with its supporting documents, filed in the patent office in 1911. Without stopping to state the evidence in detail, it is established by the testimony of Hastings, abundantly • corroborated, and not seriously denied, that, apart from the setting of eggs in staged incubation, which will be presently discussed, these incubators employed all the elements of the Smith method, and that their operation was successful in the sense that they were each used for hatching eggs for two successive seasons and that the percentage of the hatches was comparable to that of the smaller still air incubators then in use. Hastings’ incubators were closed chambers, with restricted openings. A current of heated air was propelled by a motor driven fan in such manner as to come in contact with the eggs placed within the chamber in stacks of trays, and to return to the fan by means of which it was continuously recirculated. See Smith v. Snow, supra, 19, 20; Waxham v. Smith, 294 U. S. 20, 22. Both incubators were of large capacity. That in Brooklyn was built for 6,000 eggs, although it does not appear that it ever contained more than" }, { "docid": "11095977", "title": "", "text": "acquiesced in that rejection and accepted narrower claims. Smith is not now entitled to have a construction which covers merely eggs in different stages of incubation in one chamber, with heated air applied to or forced about them. He made an effort to get claims broad enough to admit of this construction, and failed. He acquiesced in that rejection and accepted claims which called for the application of a current of air. This expression, whether we consider merely its normal meaning, or whether we determine its meaning from the disclosures of the specifications, or whether we determine the same from these repeated Patent Office rejections, must be held limited to a method which calls for the creation and driving by force of a current of air in some more or less definite or predetermined direction through a column of eggs arranged in an order which presents first to the current those in the most advanced stage. In my opinion, defendant has not appropriated this element or step of claim 1, and is not guilty of infringement. This conclusion finds support in my previous opinion, as well as in the opinions of other judges who have had occasion to examine the art and consider Smith’s patent. In Buckeye Incubator Co. v. Wolf (D. C.) 291 F. 255, describing Smith’s hatching method, I used this language: “The principle of operation and the hatching method for which this apparatus is designed consist in forcing mechanically a draft of heated air downwardly through the central corridor, where it passes below the bottom of the partition or curtains and ascends through the column of egg trays to the exit at the top of the respective egg chambers. Part of the foul air is permitted to escape through the air exits, and additional fresh air is drawn in through the air inlets and returned through the central corridor and the egg chambers. A cycle of forced circulation of air through definite channels, it is said, is thereby obtained.” As already said, I should not feel bound thereby, if my present opinion were otherwise, for the reason" }, { "docid": "16182959", "title": "", "text": "Claim 1 calls for the application of “a current of heated air, said current being created by means other than variations of temperature, * * * whereby * * * units of heat will be carried from eggs in the more advanced stage of incubation to those in a less advanced stage.” Claim 2 calls for a \"power-driven current of heated air in an adjacent chamber, * * * said current being of sufficient velocity to circulate, * * * whereby * * * the units of heat will be carried from the eggs in the more advanced stage of incubation to those in the less advanced stage.” Claim 3 is even more restricted, calling for “a vertically directed current of heated air in an adjacent chamber, * * * said current being created by mechanically moving means, * * • whereby * * * the units of heat will be carried from the eggs in the more advanced stage of incubation to those in the less advanced stage. • * * *” It is thus to be seen that all of the claims call for a current of heated air, limited in claims 2 and 3 to “power-driven” and “vertically directed.” The question is whether the broader phrase of claim 1, “applying a current of heated air,” includes the agitation of .air, not in defined currents, but so that it will produce a diffusion of heat units resulting in uniformity of temperature. Looking to the language of the claims, as indeed to the device that Smith uses, it would seem that he had in mind a process by which the warm air taken into the corridor would be currently directed, so as to strike firs't the eggs in the more advanced incubation, take to them the additionally needed oxygen, and carry the heat units therefrom to other parts of the two compartments, thus effecting, in part, at least, a uniformity of temperature throughout the egg chambers. This interpre- ■’ tation, we think, is borne out by the specifications. They refer to a “forced circulation of hot air,” to subjecting" }, { "docid": "11095976", "title": "", "text": "it can be said that no definite limitation is thereby imposed, they certainly furnish light in determining what method or series of steps are defined in claim 1. If claim 1, as originally presented, had been allowed, Smith might claim the construction now asserted, but perhaps at the risk of validity. If amended claim 2 had been allowed, Smith would be entitled to the construction now contended for, except only for the limitation of “a predetermined speed or velocity.” In the claim first submitted, he was seeking a claim covering eggs arranged in a column in various stages of incubation, with merely heated air forced or impelled about the eggs. In the later claim, he was seeking to cover eggs in one chamber in various stages of incubation, with heated air driven about all the eggs, plus a predetermined speed or velocity for the air. These claims were all rejected by the Examiner, either because they were anticipated by the prior art or because they covered more than Smith had actually discovered or invented. He acquiesced in that rejection and accepted narrower claims. Smith is not now entitled to have a construction which covers merely eggs in different stages of incubation in one chamber, with heated air applied to or forced about them. He made an effort to get claims broad enough to admit of this construction, and failed. He acquiesced in that rejection and accepted claims which called for the application of a current of air. This expression, whether we consider merely its normal meaning, or whether we determine its meaning from the disclosures of the specifications, or whether we determine the same from these repeated Patent Office rejections, must be held limited to a method which calls for the creation and driving by force of a current of air in some more or less definite or predetermined direction through a column of eggs arranged in an order which presents first to the current those in the most advanced stage. In my opinion, defendant has not appropriated this element or step of claim 1, and is not guilty of" }, { "docid": "1012236", "title": "", "text": "BODINE, District Judge. This suit is an action in equity for the infringement of claims 1 and 2 of the Smith incubator patent, No. 1,262,860. The defendant operated at Frenehtown, N. J., and Easton, Pa. The patent was held valid and infringed in Buckeye v. Wolf (D. C.) 291 F. 253, and in Buckeye v. Cooley, in this district, affirmed Circuit Court of Appeals (Third Circuit) 17 F.(2d) 453, and valid, but not infringed, in Buckeye v. Petersime, Southern District of Ohio, affirmed Circuit Court of Appeals (Sixth Circuit) 19 F.(2d) 721, and in Buckeye v. Blum, Northern District of Ohio, 17 F.(2d) 456. The claims in suit are as follows. The italics are mine. “1. The method of hatching a plurality of eggs by arranging them at different levels in a closed chamber having restricted openings of sufficient capacity for the escape of foul air without undue loss of moisture and applying a current of heated adr, said current being created by means other than variations of temperature and of sufficient velocity to circulate, diffuse and maintain the air throughout the chamber at substantially the same temperature, whereby the air will be vitalized, the moisture conserved and the units of heat will be carried from the eggs in the more advanced stage of incubation to those in a less advanced stage for the purpose specified. “2. The method of hatching a plurality of eggs by arranging them at different levels in a closed chamber having restricted openings of sufficient capacity for the escape of foul air without, undue loss of moisture and applying a power driven current of heated adr in an adjacent chamber through openings into the egg chamber, said current being of sufficient velocity to ..circulate, diffuse and maintain the air throughout the egg chamber at substantially the same temperature, whereby the air will be vitalized, the moisture conserved and the units of heat will be carried from the eggs in the more advanced stage of incubation to those in a less advanced stage for the purpose specified.” Judge Woolley, speaking for the Circuit Court of Appeals," }, { "docid": "22370918", "title": "", "text": "and the units of heat will be carried from the eggs in the more advanced stage of incubation to those in a less advanced stage for the purpose specified.” It will be observed that the claim, standing by itself, asserts the essential elements of the method of incubation to be: (a) the arrangement of the eggs at different levels in staged incubation in a closed chamber, having restricted openings of sufficient capacity for the escape of foul air without undue loss of moisture; (b) the application to the eggs of heated air in a current created by means other than variation of temperature; and (c), as marking the boundaries of the claim, the current of air is to be of sufficient velocity to circulate, diffuse and maintain the air throughout the chamber at substantially the same temperature whereby the air will be vitalized, moisture conserved, and the units of heat carried from the eggs in the more advanced stage to those in the less advanced. To avoid petitioner’s charge of infringement two main contentions are pressed by respondents. First, that Claim 1 is restricted to an arrangement of the eggs in such order with respect to the direction of the propelled current of heated air that it will first come in contact with the more advanced eggs. Thus construed, respondents do not infringe, as concededly the movement of air within their incubator does not pass to the eggs in staged incubation in any particular order. Second, that the movement of air in respondents’ incubator, produced by the agitating action of fans or propellers, does not result in “ a current of air ” traveling in a constant predestined path within the meaning of Claim 1. In passing upon these conten tions it is necessary to ascertain the proper scope of Claim 1, and to determine whether the characteristic features of respondents’ incubator come within its scope. Respondents maintain that the claim is restricted in its scope in the manner indicated above (a) by the disclosures of the patent itself, (b) by the prior art, including the patentee Smith’s own prior" }, { "docid": "11095974", "title": "", "text": "-with eggs disposed therein in different stages of incubation. In my opinion, it is not possible, to procure either a current or column of heated air, functioning in the way pointed out in Smith’s patent, without means for creating a forced draft, and -without means „ for restricting more or less the channels through which it is driven. Smith’s method cannot be practiced without these means. Turning to the file wrapper history of Smith’s patent, we find these conclusions much strengthened. His application, as originally filed, contained four method claims. Claim 1 thereof was in these words: “The method of hatching eggs by arranging the eggs in a column and applying heated air forced about the eggs, the heated air being adapted to the eggs in various stages of incubation.” This, as. well as the other three method claims, was rejected. It was then amended by inserting after the word “column” the words “of various stages of incubation” and by striking out the word “forced” and inserting the word “impelled.” After repeated rejections of all method claims, new method claims were again submitted. Of these, claim 2 is in these words: “The method of hatching eggs by arranging in one chamber eggs in various stages of incubation, the eggs in different stages of incubation being in different parts of said chamber, and applying heated air driven at a predetermined speed or velocity about all the eggs whereby the heated air will be adapted to eggs in various stages of incubation.” This amended claim, as well as all other amended method claims, was again rejected. Later, after an oral hearing and the' submission of evidence, the more limited claims now in the patent were presented and allowed. At the time of this hearing, the Smith incubator had been on the market for some time and was enjoying a substantial sale. This success was strongly emphasized. It may also be fairly inferred that its structural detail and method of operation were made known to and fully understood by the Examiner. These rejections and Smith’s acquiescence are not without substantial weight. Even if" }, { "docid": "11095966", "title": "", "text": "eggs in a less advanced stage. Even if not so stated, this method necessarily implies that the air current should play first upon the eggs in the most advanced stage. The apparatus claims call for the elements of a device thus constructed and functioning strictly in conformity to these principles. The method or process claims need not necessarily be so limited. However, claim 3, and also, in my opinion, claim 2, of the method claims in issue, call for a process limited to this exact series of steps. Claim 1, above quoted, is broader. Plaintiff contends that Smith’s method and claim 1 are broad enough to include any hatching method whereby eggs in different stages of incubation are inclosed in the same incubator chamber, and air is so agitated that heat units given off by eggs in the advanced stage will be diffused throughout the chamber and around eggs in a less advanced stage. Defendant, on the other hand, contends that claim 1 calls for a process only, which requires the application of a current of heated air, more or less controlled, first to eggs in the advanced stage, and does not include merely stirring or agitating air, even though by so doing the temperature is kept reasonably uniform, regardless of the varying stages of incubation. The manufacturer of defendant’s apparatus issues, with its delivery, instructions that all eggs should be set at one time. If this were done, plaintiff does not contend that the method would infringe. The defendant uses two Aero incubators, one for a single stack of egg trays, and the other for three stacks. The evidence shows that defendant does not use the single stack incubator in accordance with the instructions, but sets the eggs in a series, so as to have them in varying stages of incubation. He testifies that this was done because the capacity of the heating unit is not adequate to get a sufficiently high temperature, if all the eggs are set at once. In operating the three-stack incubator, all the eggs are not set at the same time, but one stack" }, { "docid": "14338843", "title": "", "text": "Incubator Co. v. Hillpot (D. C.) 22 F.(2d) 855, the decision here under review. In the last cited case there was a contest (raised by a counterclaim) between the Smith patent and the Hillpot patents. The District Court held the claims of the Smith patent not infringed hy the respondent and the claims of the Hillpot patents not infringed by the complainant, and accordingly dismissed both bill and counterclaim. Both parties have appealed. In the Cooley Case infringement was so plain there was no occasion to construe the claims. In the present case, however, the alleged infringements are of a character that call for their construction. Hence the scope of the claims and how they read, as construed, on the practices of the respondent are the only issues with which we have to deal under the Smith patent. That patent has five claims; the first three are for methods and the last two are for apparatus. We are concerned in this case only with the first two method claims of which claim I, whose critical words we have emphasized by italics, reads as follows: “The method of hatching a plurality of eggs hy arranging them at different levels in a closed chamber having restricted openings of sufficient capacity for the escape of foul air without undue loss of moisture and applying a current of heated air, said current being created by means other than variations of temperature and of sufficient velocity to circulate, diffuse and maintain the air throughout the chamber at substantially the same temperature, whereby the air wili be vitalized, the moisture conserved and the units of heat will be carried from the eggs in the more advanced stage of incubation to those in a less advanced stage for the purpose specified.” The closed chamber was,old; placing eggs in mesh bottom trays, stacking the trays in tiers, separating the tiers by passageways and arranging the trays at different levels as incubation advances, called stage incubation, were old; heat distribution effected by fan driven heated air was old; and openings in the closed chamber for the escape of foul" }, { "docid": "22249583", "title": "", "text": "a method of incubation of a plurality of eggs. Claim 5 is a claim for an apparatus adapted to the use of the method and is of significance in the present litigation only if a method claim is sustained. Claim 1 may be taken as typical of the other method claims. In Smith v. Snow, supra, its essential elements were stated to be (p. 8): “(a) the arrangement of the eggs at different levels in staged incubation in a closed chamber, having restricted openings of sufficient capacity for the escape of foul air without undue loss of moisture; (b) the application to the eggs of heated air in a current created by means other than variation of temperature; and (c), as marking the boundaries of the claim, the current of air is to be of sufficient velocity to circulate, diffuse and maintain the air throughout the chamber at substantially the-same temperature whereby the air will be vitalized, moisture conserved, and the units of heat carried from the eggs in the more advanced stage to those in the less advanced.” Staged incubation is the successive setting of eggs in the same incubator at brief intervals. At different stages in the course of the three weeks period of incubation the eggs have different temperatures, those in the earlier having lower temperatures than those in the later stages. When subjected to a temperature approximating that of body heat, the eggs of the earlier stages absorb heat and those of the later stages give off heat. It was pointed out in the opinion in the Snow case that a demonstrated advantage of the Smith method over that of the earlier type of incubator, in which there was no propelled current of air, is that it facilitates the continuous operation of the incubator through staged incubation, and makes it possible in the process of incubation to increase the number of eggs in a single incubator from a few hundred to many thousands. To avoid infringement, it was insisted in the Snow case that the claim was restricted, by the specifications and drawings of the patent," }, { "docid": "22370937", "title": "", "text": "call for no comment. This history of the prior art serves to emphasize rather than to discredit the striking advance made by Smith in effecting the combination defined in Claim 1. More than the skill of the art was involved in combining and adjusting its elements in such fashion as to solve the major prob lems of artificial incubation. The prior art discloses no application of a continuously circulating current of air to eggs in staged incubation which would restrict Claim 1 with respect either to the arrangement of the eggs or the direction or control of the current of air. 4. There remains the question of infringement. The respondents’ machine exhibits a closed chamber, with restricted outlet for the escape of foul air and an intake for fresh air, with eggs arranged at different levels in staged incubation, with a fan-impelled movement of air which circulates and recirculates throughout the chamber. The air moves over and about the eggs, carrying the units of heat from the warmer to the cooler eggs, maintains a substantially uniform temperature throughout the chamber, vitalizes the air and conserves moisture. As Claim 1 of petitioner’s patent is not restricted to any particular order in which the current of air reaches the eggs, respondents do not avoid infringement by interspersing indiscriminately, as they do, the trays of eggs in different stages of incubation. Respondents’ claim of non-infringement is thus reduced to the contention that their incubators do not employ circulating currents of air called for by Claim 1. Their emphasis is on the agitation of air in respondents’ machine in such a manner that its movement does not follow defined1 paths through the chamber so as to answer to the description “ current of air.” In respondents’ machine fans or air propellers are located at either side of the chamber, about mid-way of its height,' near the wall and between the wall and tiers of egg trays. They are constructed and operated in such fashion that the air is “ drawn ” by their action from the central corridor through the tiers of eggs toward" }, { "docid": "14338844", "title": "", "text": "words we have emphasized by italics, reads as follows: “The method of hatching a plurality of eggs hy arranging them at different levels in a closed chamber having restricted openings of sufficient capacity for the escape of foul air without undue loss of moisture and applying a current of heated air, said current being created by means other than variations of temperature and of sufficient velocity to circulate, diffuse and maintain the air throughout the chamber at substantially the same temperature, whereby the air wili be vitalized, the moisture conserved and the units of heat will be carried from the eggs in the more advanced stage of incubation to those in a less advanced stage for the purpose specified.” The closed chamber was,old; placing eggs in mesh bottom trays, stacking the trays in tiers, separating the tiers by passageways and arranging the trays at different levels as incubation advances, called stage incubation, were old; heat distribution effected by fan driven heated air was old; and openings in the closed chamber for the escape of foul air (though not purposely restricted) were old. In the Cooley Case we found, as did both courts in the Wolf Case, that Smith got away from the old art and conceived a new method and provided a new apparatus whereby heated air, instead of being driven hither and yon throughout the closed chamber, is driven in currents and made to circulate in the form of columns of air in predetermined paths through columns of trays containing eggs which, at different stages of incubation, have different temperatures and which, therefore, exact different treatment, with the result that he met the demands of eggs of varying temperatures and supplied them with a temperature having a uniformity which all workers in the art had sought and which the hen alone affords to best advantage in nature. If Smith did not do this, he did nothing. -But this court and other courts have thought he did it. Van Marter v. Miller, Fed. Cas. No. 16,863. In his patent he describes one preferred apparatus by which, the method can he" }, { "docid": "16182958", "title": "", "text": "box through openings over the sides of the compartments. The Petersime device is an open box with out partitions, in. which there are egg trays of different sizes arranged in a drum. The heated air is taken in at the bottom of the cabinet and rises primarily because it is heated. There are inlets for air at the bottom and outlets at the top. The air in the drum is agitated by a slow-moving stirrer, but there is no defined current created \"by the agitation, that drives the air first upon the eggs in the more advanced stage of incubation, although it is admittedly so mixed that the heat units from those eggs are diffused throughout the entire drum. There is a thorough mixing of the air, but no application of defined currents. As we have seen, the apparatus of Smith discloses a defined current of air driven first over the warmer eggs. His process claims may nevertheless be sustained upon a broader ground than exemplified in the device, if their language justifies such interpretation. Claim 1 calls for the application of “a current of heated air, said current being created by means other than variations of temperature, * * * whereby * * * units of heat will be carried from eggs in the more advanced stage of incubation to those in a less advanced stage.” Claim 2 calls for a \"power-driven current of heated air in an adjacent chamber, * * * said current being of sufficient velocity to circulate, * * * whereby * * * the units of heat will be carried from the eggs in the more advanced stage of incubation to those in the less advanced stage.” Claim 3 is even more restricted, calling for “a vertically directed current of heated air in an adjacent chamber, * * * said current being created by mechanically moving means, * * • whereby * * * the units of heat will be carried from the eggs in the more advanced stage of incubation to those in the less advanced stage. • * * *” It is" }, { "docid": "1012237", "title": "", "text": "diffuse and maintain the air throughout the chamber at substantially the same temperature, whereby the air will be vitalized, the moisture conserved and the units of heat will be carried from the eggs in the more advanced stage of incubation to those in a less advanced stage for the purpose specified. “2. The method of hatching a plurality of eggs by arranging them at different levels in a closed chamber having restricted openings of sufficient capacity for the escape of foul air without, undue loss of moisture and applying a power driven current of heated adr in an adjacent chamber through openings into the egg chamber, said current being of sufficient velocity to ..circulate, diffuse and maintain the air throughout the egg chamber at substantially the same temperature, whereby the air will be vitalized, the moisture conserved and the units of heat will be carried from the eggs in the more advanced stage of incubation to those in a less advanced stage for the purpose specified.” Judge Woolley, speaking for the Circuit Court of Appeals, summarized Smith’s invention-in the following language: “By so controlling the current of heated air Smith claims, and we think correctly, that he is enabled to attain uniformity of temperature in its movement, first, through the old heat radiating eggs, and next, as it ascends, to the newer heat absorbing eggs, it being necessary that the temperature of the former should be maintained at a point not higher than 105° and that of the latter at a point not below 100°.” The inventor, Smith, examined as to the Hillpot device, said: “Q. * * * Do you mean that you made a machine like Mr. Hillpot’s from the drawing that your witness made? A. Yes. “Q. And since that time? A. Yes. “Q. When did you do that? A. It was some time last season. I just could not give the date of that; somewhere about a year ago. “Q. Did you arrange fans in it the same as the Hillpot machine? A. Yes. “Q. And 'did they blow the air down or up? A. They" }, { "docid": "16182960", "title": "", "text": "thus to be seen that all of the claims call for a current of heated air, limited in claims 2 and 3 to “power-driven” and “vertically directed.” The question is whether the broader phrase of claim 1, “applying a current of heated air,” includes the agitation of .air, not in defined currents, but so that it will produce a diffusion of heat units resulting in uniformity of temperature. Looking to the language of the claims, as indeed to the device that Smith uses, it would seem that he had in mind a process by which the warm air taken into the corridor would be currently directed, so as to strike firs't the eggs in the more advanced incubation, take to them the additionally needed oxygen, and carry the heat units therefrom to other parts of the two compartments, thus effecting, in part, at least, a uniformity of temperature throughout the egg chambers. This interpre- ■’ tation, we think, is borne out by the specifications. They refer to a “forced circulation of hot air,” to subjecting the eggs to a “column of air,” to moving the eggs to a different position “with reference to the forced circulation of hot air,” to forcing the air “to pass between the different eggs” which will in effect “act as a cooling medium” for the more advanced eggs, all of which contemplate a defined current of air by which certain eggs may be cooled and given the additionally needed oxygen, and others may be warmed by the heat units which the current carries from the more advanced eggs. The file wrapper history of Smith’s patent tends to support the same conclusion. This conception of a current of air driven in a definite or predetermined direction is different, we think, from the Petersime process, by which diffusion of heat units and uniformity of temperature is obtained by the slow stirring or agitation of the air in the egg chamber. Judgment affirmed. 1. The method of hatching a plurality of eggs by arranging them at different levels in a closed chamber, having restricted openings of sufficient capacity" } ]

[ { "docid": "22348452", "title": "", "text": "the sentence that I would impose in any event.” Although the district court did not comment on the guideline ranges that would apply with and without the enhancement, the record reflects no disagreement between the parties or confusion by the district court about the guidelines range before and after the enhancement. The defendant argued in his objections to the PSR that without the enhancement “he should be scored at Level 6, at a Category I, with a sentencing range of 0-6 months, at Zone A.” At sentencing the district court specifically referenced his consideration of the parties’ arguments made at sentencing and in the reports before exercising its discretion to impose a sentence of 41 months. As in Tzep-Mejia, Bonilla’s sentence did not result from an incorrect application of the guidelines. Bonilla argues that the district court committed an additional procedural error by failing to adequately explain the chosen sentence. Gall, 128 S.Ct. at 597. There is some dispute as to whether plain error review should apply to this issue because Bonilla did not object to the adequacy of the district court’s reasons at sentencing. We need not decide the appropriate level of review, because as explained below, the district court’s reasons were sufficient under any standard. Prior to Rita, this court held that if a district court imposes a sentence within the properly determined Guidelines range, little explanation is required. See United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005). In Rita, the Court indicated that more than a brief statement may be required when a district court is presented with nonfrivolous arguments for a sentence outside the Guidelines. 127 S.Ct. at 2468-69. Nevertheless, the Court concluded that the district court’s reasons for rejecting the defendant’s § 3553(a) arguments for a non-Guidelines sentence in that case were, although brief, legally sufficient. Id. at 2469. Specifically, the Court noted that the record made clear that the judge listened to and considered the arguments and evidence but simply found the circumstances insufficient to warrant a sentence below the Guidelines range. Id. The judge said that the range was not “inappropriate”" } ]

[ { "docid": "22203392", "title": "", "text": "to the government’s pointed questions regarding Carter’s arguments do not provide a record that “makes clear that the sentencing judge listened to each argument.” Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2469, 168 L.Ed.2d 203 (2007). The Supreme Court has instructed that the district court “may not presume that the Guidelines range is reasonable.” Gall, 128 S.Ct. at 596-97; see also Rita, 127 S.Ct. at 2465 (emphasizing that, in determining the merits of the arguments by prosecution and defense that the guidelines sentence should not apply, “the sentencing court does not enjoy the benefit of a legal presumption that the Guidelines sentence should apply”). Here, however, the district court presumed the guideline range was reasonable and failed to make any individualized assessment. “The sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita, 127 S.Ct. at 2468. Yet, the district court did not give any reason for rejecting Carter’s arguments regarding his sentence. Unlike cases in which we have found that the district court adequately considered the defendant’s specific “history and characteristics,” the court did not “consider how the sentencing factors apply to [Carter] and determine whether an indi vidualized sentence [was] warranted.” United States v. Plouffe, 445 F.3d 1126, 1131 (9th Cir.2006); see, e.g., United States v. Stoterau, 524 F.3d 988, 999-1000 (9th Cir.2008) (finding that the district court adequately “considered the evidence and arguments of the defendant” where the district court referred to numerous subsections of § 3553(a), and, “at various points in the sentencing hearing, the district court explicitly noted that it had considered [the defendant’s] arguments”), cert. denied, — U.S. —, 129 S.Ct. 957, — L.Ed.2d — (2009). I echo the concern that such deferential review has made appellate review of sentencing “an empty formality.” Gall, 128 S.Ct. at 607 (Alito, J., dissenting); see also United States v. Autery, 555 F.3d 864, 878-79 (9th Cir.2009) (Tashima, J., dissenting); United States v. Ruff, 535 F.3d 999, 1005 (9th Cir.2008) (Gould, J., dissenting) (in" }, { "docid": "22665358", "title": "", "text": "for that, and under 3553 ... the public needs to be protected if it is true, and I must accept as true the jury verdict.’ ” Id. at 2462 (alterations in original). The Supreme Court determined that “the sentencing judge’s statement of reasons was brief but legally sufficient.” Id. at 2469. In United States v. Rodriguez, 523 F.3d 519 (5th Cir.), cert. denied, - U.S. -, 129 S.Ct. 624, 172 L.Ed.2d 616 (2008), the district court overruled the defendant’s written objections to the PSR for the reasons given in the addendum. 523 F.3d at 522. The court then listened to the defendant’s arguments for a sentence at the low end of the Guidelines range, but rejected them and sentenced him at the high end of the range. Id. at 522-23. The district court believed that sentence “adequately addressed the objectives of punishment and deterrence.” Id. at 523. On appeal, this court affirmed, noting that the district court had seen the defendant’s arguments in the objections to the PSR and had expressly adopted the PSR’s findings and reasoning. Id. at 525. This court found the district court’s reasons adequate in light of Rita. Id. at 525-26. In United States v. Gomez-Herrera, 523 F.3d 554 (5th Cir.), cert. denied, — U.S. -, 129 S.Ct. 624, 172 L.Ed.2d 617 (2008), this court affirmed the defendant’s sentence when the district court rejected his arguments for a downward departure. The defendant had filed a sentencing memorandum in which he analyzed the various § 3553(a) factors and requested a below-Guidelines sentence. 523 F.3d at 556. He made the same arguments at the sentencing hearing, and the district court noted them but “was persuaded on the basis of the arguments made both here today and in the sentencing memorandum that [the court] should not depart downward from the Guideline range.” Id. at 557. In affirming, this court found the district court had considered the defendant’s arguments and adequately addressed them. Id. at 565. In United States v. Bonilla, 524 F.3d 647 (5th Cir.2008), cert, denied, — U.S. -, 129 S.Ct. 904, — L.Ed.2d - (2009), the defendant" }, { "docid": "22665225", "title": "", "text": "519 (5th Cir.2005). In Rita, the Court indicated that more than a brief statement may be required when a district court is presented with nonfrivolous arguments for a sentence outside the Guidelines. 127 S.Ct. at 2468-69. Nevertheless, the Court concluded that the district court’s reasons for rejecting the defendant’s § 3553(a) arguments for a non-Guidelines sentence in that case were, although brief, legally sufficient. Id. at 2469. Specifically, the Court noted that the record made clear that the judge listened to and considered the arguments and evidence but simply found the circumstances insufficient to warrant a sentence below the Guidelines range. Id. The judge said that the range was not “inappropriate” and that a sentence at the bottom of the range was “appropriate.” Id. The Court acknowledged that the judge might have said more, but was not required to do so. Id. In this case, the record makes clear that the judge reviewed not only the PSR, to which there were no objections, but also Gomez-Herrera’s and the government’s sentencing memorandum setting forth each party’s position on the appropriate sentence. These arguments were repeated at the sentencing hearing. The court also received a written statement from the defendant’s father and his former employer, and an oral statement by his niece in support of a lower sentence for the defendant. The court noted that Gomez-Herrera sought a sentence below the Guidelines range based on various factors but stated that it was persuaded by the arguments at the hearing and in the sentencing memos that he should not depart downward from the Guidelines range. The court also concluded that there was no reason to sentence Gomez-Herrera at either extreme of the Guideline range and that it would choose the midpoint. This statement of reasons is not substantially different from that given and found to be legally adequate in Rita. Accordingly, the defendant’s argument that his sentence must be overturned for an inadequate statement of reasons is rejected. Gomez-Herrera also argues that his sentence was substantively unreasonable. As he did in the district court, Gomez-Herrera asserts that several factors warranted a sentence below" }, { "docid": "22907690", "title": "", "text": "S.Ct. 113, 169 L.Ed.2d 80 (2007), and need not explicitly refer to either the § 3553(a) factors or respond to “every argument for leniency that it rejects in arriving at a reasonable sentence.” JarrilloLuna, 478 F.3d at 1229; United States v. A.B., 529 F.3d 1275, 1289 (10th Cir.2008) (noting that “when the district court adheres to the advisory Guidelines range,” § 3553(c) does not require a “particularized analysis” of the statutory factors), cert. denied, — U.S.-, 129 S.Ct. 440, — L.Ed.2d-2008 WL 4189667, at *1 (2008). A sentence at the low end of the Guidelines range is “a functional rejection” of the defendant’s request for a below-Guidelines sentence. Sanchez-Juarez, 446 F.3d at 1115. In Sanchez-Juarez, the district court heard defendant’s arguments for a downward variance, noted that it had reviewed the PSR’s factual findings, considered the Guidelines applications, and cited the defendant’s offense conduct. Id. But we observed that, at a minimum, a sentencing court must “ ‘state its reasons for imposing a given sentence.’ ” Id. at 1116 (quoting United States v. Rose, 185 F.3d 1108, 1111 (10th Cir.1999)). The sentencing court in Sanchez-Juarez failed to meet this minimum requirement, as it gave no reasons for the sentence it imposed and did not mention the § 3553(a) factors at all. Id. at 1115. The district court’s conduct in this case is strikingly different from that in Sanchez-Juarez. As noted previously, the district court clearly considered the § 3553(a) factors in sentencing Mr. Martinez-Barragan. It addressed Mr. Martinez-Barragan’s arguments that his criminal history score exaggerated his future dangerousness and that he entered the country in order to provide for his family. The court did not cite specific subsections of § 3553(a), but it is not required to do so. However, the facts and circumstances that it did consider, see supra Part 11(A)(1)(b), are plainly relevant to many of the statutory factors, including the nature of the offense and the history of the defendant; the need for the sentence to deter future criminal conduct, protect the public from the defendant, and provide the defendant with treatment; and “the need to avoid" }, { "docid": "22240939", "title": "", "text": "or public reputation of the judicial proceedings.’” Id. (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir.2006)). In Vonner, the en banc court applied plain-error review to the question whether re-sentencing was required where the district court had imposed a within-Guidelines sentence without explicitly stating why it denied the defendant’s request for a downward variance. The court acknowledged that the sentencing court’s explanation was not “ideal;” that it failed to specifically address all of Vonner’s arguments for leniency. Yet, the record demonstrated that the district court had considered the nature and circumstances of the offense and the history and characteristics of the defendant. Nothing in the record suggested that the sentencing court did not listen to, consider and understand every argument Vonner made. Citing Rita v. United States, — U.S. -, 127 S.Ct. 2456, 2469, 168 L.Ed.2d 203 (2007), the court observed that a lengthy reasoned explanation was not required because the request for leniency was “conceptually straightforward.” Vonner, 516 F.3d at 388. Further, the court noted that Vonner’s arguments in mitigation were not disputed by the government and therefore did not amount to “controverted matters” on which the district court was required to rule under Rule 32 of the Federal Rules of Criminal Procedure, Fed.R.Crim.P. 32(i)(3)(B). Id. at 388-89. Hence, the en banc court concluded the sentencing court had not plainly violated its duty to analyze the relevant sentencing factors or Vonner’s arguments for leniency. Id. Vonner’s inadequate-ex planation objection was overruled, his procedural-unreasonableness challenge was denied, and the district court’s judgment of sentence was affirmed. Here, defendant Houston’s request for reconsideration was based on two asserted errors. First, he argued that the district court did not adequately explain why such circumstances as cultural acceptance of gambling, familial relationships, and his history of generosity were not deemed to merit a greater-than-three-months downward variance. Id. In response, the district court confirmed that it had fully considered these circumstances. Memorandum and Order p. 2, JA 149; Memorandum and Order p. 2, JA 171. Clearly, the district court’s mere failure to fully explain the extent of its consideration of sentencing" }, { "docid": "22140465", "title": "", "text": "public need protection from him. We review challenges to sentences for reasonableness for abuse of discretion only. United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir.2009). This review occurs in two parts. Id. First, this court considers whether there was a procedural error made by the district court. Id. Procedural errors include “miscalculating or failing to calculate the sentencing range under the Guidelines, treating the Guidelines as mandatory, [or] failing to consider the § 3553(a) factors ....’’ Id. (citation omitted). If there is no procedural error, then this court “engages in a substantive review based on the totality of the circumstances.” Id. (citations omitted). “[A] sentence within the Guidelines range is presumed reasonable on appeal.” Id. We conclude that the district court did not abuse its discretion in this case. First, there was no procedural error. The district court at sentencing noted several times that he had read and considered the “copious briefs,” the objections to the PSR, sentencing memorandum, and reply memorandum. The district court stated that it had “studied the provisions of 3553(a)” and its factors at sentencing. Because of the district court’s reference to the arguments made in the briefs and sentencing memorandum, we look to these documents to determine if they provide adequate information about the factors the district court considered and whether the district court’s reasons were adequate. See United States v. Bonilla, 524 F.3d 647, 658 (5th Cir.2008). These documents include arguments by both sides on the § 3553(a) factors and each factor’s application, providing clarification on what the court considered at sentencing. By examining the record in full, the district court’s reasons for the chosen sentence are clear and this court can review them. We conclude that there is no procedural error here. Finding no procedural error, we next consider the substantive reasonableness of Tuma’s sentence. Because the sentence was within the Guideline range it is presumed substantively reasonable. United States v. Diaz Sanchez, 714 F.3d 289, 295 (5th Cir.2013). Turna has not rebutted this presumption with evidence that the district court improperly considered a factor, failed to take into account a" }, { "docid": "18533723", "title": "", "text": "(3) his argument that Edwards requires reversal. A. Constitutional Challenges to the Convictions Defendant challenges his convictions on constitutional grounds. His arguments are identical to the defendant’s arguments in United States v. McCalla, 545 F.3d 750 (9th Cir.2008), cert. denied, — U.S. —, 129 S.Ct. 1363, — L.Ed.2d — (2009), which we rejected. See id. at 753-56 (rejecting the defendant’s argument that “Congress lacks authority under the Commerce Clause to regulate the noncommercial and wholly intrastate production of child pornography, and therefore, as applied to him, 18 U.S.C. § 2251(a) is unconstitutional”); id. at 755-56 (holding that as-applied challenges relying on the “de minimis” character of the defendant’s actions are foreclosed); id. at 756 (holding that United States v. McCoy, 323 F.3d 1114 (9th Cir.2003), had been effectively overruled by Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005)). Defendant’s arguments are therefore foreclosed. Subject to our discussion below, in Part C, Defendant’s convictions were not in error. B. Challenges to the Sentence We review for abuse of discretion the district court’s sentence. United States v. Bendtzen, 542 F.3d 722, 725 (9th Cir.2008). “We will reverse the sentence only where it was procedurally erroneous or substantively unreasonable.” Id. We review for plain error objections not raised to the district court. United States v. Waknine, 543 F.3d 546, 554 n. 4 (9th Cir.2008). On appeal, Defendant raises two procedural challenges to his sentence. First, he argues that the district court did not adequately consider the factors in 18 U.S.C. § 3553(a). We disagree. The district court stated that it had considered the § 3553(a) factors, and Defendant did not provide any arguments requiring further explanation. The district court did not abuse its discretion. See United States v. Stoterau, 524 F.3d 988, 999 (9th Cir.2008) (“[Wjhen a defendant’s arguments are straightforward and uncomplicated, the district court does not abuse its discretion when it listens to the defendant’s arguments and then simply finds those circumstances insufficient to warrant a sentence lower than the Guidelines range.” (brackets and internal quotation marks omitted)), cert. denied, — U.S. —, 129 S.Ct. 957," }, { "docid": "23291969", "title": "", "text": "the court failed to recognize its authority to depart.” United States v. Andreano, 417 F.3d 967, 970 (8th Cir.2005); see also United States v. Vasquez, 433 F.3d 666, 670 (8th Cir.2006) (“[W]e cannot review whether the district court erred in declining to exercise its discretion to depart downward for overstated criminal history.”). Here, the district court recognized its authority to depart downward, yet decided not to do so, stating, “I don’t believe there’s any proper grounds for downward departure because the criminal history Category does not substantially over represent the seriousness of your situation and your criminal history.” (Sent. Tr. 27.) Because the district court recognized its authority, we are precluded from reviewing this decision. Weldon also argues that the district court committed significant procedural error by not adequately considering the section 3553(a) sentencing factors. Contrary to Weldon’s contention, however, there is no requirement that the district court recite every section 3553(a) factor, United States v. Battiest, 553 F.3d 1132, 1136 (8th Cir.), cert. denied, — U.S. -, 129 S.Ct. 2452, 174 L.Ed.2d 242 (2009), and the defendant’s PSR, arguments by the parties, and other evidence at the sentencing hearing all provide the court with enough information on which to base a sentencing decision. See United States v. Struzik, 572 F.3d 484, 487 (8th Cir.2009). In Struzik, we concluded that the district court “fully considered [the section 3553(a) ] factors and sufficiently explained its decision” where “the court had ‘significant exposure’ to [the defendant’s] PSR, the parties’ sentencing memoranda and their arguments at the sentencing hearing” and “imposed a sentence which he justified by specific reference to several § 3553(a) factors.” Id. Similarly here, the district court heard arguments by both parties, and Weldon’s PSR explained his offense level and recommended sentence. See United States v. Jones, 493 F.3d 938, 941 (8th Cir.2007) (“The [PSR] contains extensive information regarding [the defendant], his history and characteristics, the nature and circumstances of the offense, the kinds of sentences available, and a recommended advisory sentencing guidelines range, all of which are factors under § 3553(a).”), vacated, 552 U.S. 1091, 128 S.Ct. 928, 169" }, { "docid": "22665360", "title": "", "text": "objected to the PSR, but the district court overruled the objections. On appeal, this court opined: “Error does not necessarily result when the district court’s reasons, as in this case, are not clearly listed for review.” 524 F.3d at 657. The district court stated that it had “considered the arguments made earlier ... as well as the information in the report,” and also that it kept “in mind the factors that the court has to consider in imposing a sentence.” Id. Based on these statements, this court analyzed the record to determine if the arguments and report stated sufficient reasons to uphold the sentence. Id. at 658. The court found such support, but strongly recommended that the district court explicitly state its reasons on the record. Id. (“A clear statement of reasons on the record also serves to prevent the inefficiency that would result from remand and resentencing if on appeal we had been unable to determine the court’s reasons from the record.”). In Rita, Rodriguez, and Gomez-Herrera, the sentencing court acknowledged that § 3553(a) arguments had been made and devoted a few words to rejecting them. In Bonilla, the sentencing court referred to arguments previously made and to the report, thereby incorporating that reasoning into her decision, in which she explicitly noted her consideration of the sentencing factors. Unlike in these cases, the district court in this case did not give any reasons for its sentence beyond a bare recitation of the Guideline’s calculation. This despite the fact that Mondragon-Santiago raised arguments before the district court concerning his family, his work history, and his prior convictions, all of which are relevant considerations under § 3553(a). See § 3553(a)(1) (including as a sentencing factor “the nature and circumstances of the offense and the history and characteristics of the defendant”). The district court did not mention Mondragon-Santiago’s arguments, and the court’s statement of reasons did not further illu mínate its reasoning. The total explanation of the court was as follows: “This is an Offense Level 21, Criminal History Category 3 case with guideline provisions of ... 46 to 57 months. The" }, { "docid": "23375824", "title": "", "text": "Cir.2010). Marrero claims that the district court did not understand its authority to categorically disagree with the crack-cocaine Guidelines, making his sentence procedurally deficient. See Moore v. United States, 555 U.S. 1, 129 S.Ct. 4, 172 L.Ed.2d 1 (2008) (per curiam); United States v. Johnson, 553 F.3d 990, 996 (6th Cir.2009). In the proceedings below, Marrero repeatedly contested the application of the crack-cocaine disparity to his sentence. However, Marrero never argued to the district court that it should impose a downward departure based on a categorical disagreement with the Guidelines. Rather, he only argued for a downward departure based on his mistaken belief that Congress had eliminated the contested disparity. Additionally, Marrero responded negatively when, at the close of the sentencing hearing, the district court asked him whether he had “any other objections to the sentence ... imposed.” As a result, we review his request for remand under a plain-error standard. See United States v. Simmons, 587 F.3d 348, 354-58 (6th Cir.2009) (determining that plain-error review applied to defendant’s procedural argument for remand in light of Kimbrough, even though defendant’s counsel at sentencing had “devoted much of her argument [at sentencing] to the idea that a downward variance was warranted ... because of the Guidelines’ disparate treatment of crack and powder cocaine offenses” and had, when asked if she had additional objections, raised a vague objection to the “procedural, substantive aspects” of defendant’s sentence), cert. denied, — U.S. -, 130 S.Ct. 2116, 176 L.Ed.2d 741 (2010). See generally United States v. Vonner, 516 F.3d 382, 386 (6th Cir.2008) (en banc); United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir.2004). As this Court previously held in Michael, “the district court’s error, if any, in failing affirmatively to recognize its discretion to reject the statutory 100:1 ratio as implicitly incorporated into U.S.S.G. § 4B1.1 was not plain.” 576 F.3d at 328 (citing United States v. Liddell, 543 F.3d 877, 885 (7th Cir.2008)). In this case, the district court explicitly recognized that “the guidelines are advisory to the Court.” It also discussed its consideration of the 18 U.S.C. § 3553(a) factors, explaining" }, { "docid": "18533724", "title": "", "text": "court’s sentence. United States v. Bendtzen, 542 F.3d 722, 725 (9th Cir.2008). “We will reverse the sentence only where it was procedurally erroneous or substantively unreasonable.” Id. We review for plain error objections not raised to the district court. United States v. Waknine, 543 F.3d 546, 554 n. 4 (9th Cir.2008). On appeal, Defendant raises two procedural challenges to his sentence. First, he argues that the district court did not adequately consider the factors in 18 U.S.C. § 3553(a). We disagree. The district court stated that it had considered the § 3553(a) factors, and Defendant did not provide any arguments requiring further explanation. The district court did not abuse its discretion. See United States v. Stoterau, 524 F.3d 988, 999 (9th Cir.2008) (“[Wjhen a defendant’s arguments are straightforward and uncomplicated, the district court does not abuse its discretion when it listens to the defendant’s arguments and then simply finds those circumstances insufficient to warrant a sentence lower than the Guidelines range.” (brackets and internal quotation marks omitted)), cert. denied, — U.S. —, 129 S.Ct. 957, 173 L.Ed.2d 153 (2009). Second, Defendant argues that the district court erred in calculating the Guidelines range. The PSR recommended a total offense level of 49, corresponding to a Guidelines “range” of life imprisonment. Defendant did not object to the PSR’s recommendations at sentencing, and the district court adopted the PSR. Because the statutory maximum for Defendant’s convictions is 480 months, the district court sentenced Defendant to that term of imprisonment. Defendant failed to object at sentencing, so we review for plain error. Fed.R.Crim.P. 52(b); United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). The district court did not fail completely to calculate the Guidelines range: The court stated that it calculated the total offense level as 49, corresponding to a range of 480 months. Defendant’s argument is that the district court did not actually engage in a calculation personally, but instead adopted the PSR’s recommendation wholesale, without any analysis. Defendant stresses the following remark, made by the district court early in the sentencing hearing: “[A] number of [the" }, { "docid": "8232790", "title": "", "text": "desire to litigate this new legal argument before the undersigned in Defen dant’s case to avoid plain-error review before the Eighth Circuit Court of Appeals. Both parties requested the opportunity to brief the new legal issue. The court granted the parties’ joint request. On January 19, 2009, Defendant filed a Supplemental Sentencing Memorandum (docket no. 144). On the same date, the government filed a Supplemental Sentencing Memorandum (docket no. 145). All of the contested legal and factual issues in Defendant’s sentencing are now fully submitted and ready for decision. On February 19, 2009, at 8:30 a.m., in the Temporary Courthouse in Cedar Rapids, Iowa, the court shall reconvene the Hearing and impose sentence in a manner consistent with the instant Sentencing Memorandum. III. SENTENCING FRAMEWORK A “district court should begin [a sentencing proceeding] with a correct calculation of the [defendant’s] advisory Sentencing Guidelines range.” United States v. Braggs, 511 F.3d 808, 812 (8th Cir.2008). The defendant’s advisory Sentencing Guidelines range “is arrived at after determining the appropriate Guidelines range and evaluating whether any traditional Guidelines departures are warranted.” United States v. Washington, 515 F.3d 861, 865 (8th Cir.2008). “[A]fter giving both parties a chance to argue for the sentence they deem appropriate, the court should consider all of the factors listed in 18 U.S.C. § 3553(a) to determine whether they support the sentence requested by either party.” Braggs, 511 F.3d at 812. “The district court may not assume that the Guidelines range is reasonable, but instead ‘must make an individualized assessment based on the facts presented.’ ” Id. (quoting Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)); see, e.g., Nelson v. United States, - U.S. -, 129 S.Ct. 890, 892, 172 L.Ed.2d 719 (2009) (per curiam) (“Our cases do not allow a sentencing court to presume that a sentence within the applicable Guidelines range is reasonable.”). The district court “has substantial latitude to determine how much weight to give the various factors under § 3553(a).” United States v. Ruelas-Mendez, 556 F.3d 655, 657 (8th Cir.2009). “If the court determines that a sentence outside" }, { "docid": "23375823", "title": "", "text": "held that a district court may vary a defendant’s sentence upon concluding that “the craek/powder disparity yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a mine-run case,” id. at 110, 128 S.Ct. 558. See also Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 843-44, 172 L.Ed.2d 596 (2009) (per curiam) (“[District courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines.”). Though Marrero was sentenced under the career-offender provisions of U.S.S.G. § 4B1.1 rather than the drug-quantity table of U.S.S.G. § 2D1.1, the sentencing disparity between crack and powder cocaine offenses is “implicitly incorporated” in his career-offender enhancement. United States v. Michael, 576 F.3d 323, 327 (6th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 819, 175 L.Ed.2d 574 (2009). Therefore, the logic of Kimbrough and Spears still applies, and a “categorical disagreement with the [erack-to-powdercocaine] ratio may ... support a district court’s rejection of the career offender enhancement.” United States v. Curb, 625 F.3d 968, 972 (6th Cir.2010). Marrero claims that the district court did not understand its authority to categorically disagree with the crack-cocaine Guidelines, making his sentence procedurally deficient. See Moore v. United States, 555 U.S. 1, 129 S.Ct. 4, 172 L.Ed.2d 1 (2008) (per curiam); United States v. Johnson, 553 F.3d 990, 996 (6th Cir.2009). In the proceedings below, Marrero repeatedly contested the application of the crack-cocaine disparity to his sentence. However, Marrero never argued to the district court that it should impose a downward departure based on a categorical disagreement with the Guidelines. Rather, he only argued for a downward departure based on his mistaken belief that Congress had eliminated the contested disparity. Additionally, Marrero responded negatively when, at the close of the sentencing hearing, the district court asked him whether he had “any other objections to the sentence ... imposed.” As a result, we review his request for remand under a plain-error standard. See United States v. Simmons, 587 F.3d 348, 354-58 (6th Cir.2009) (determining that plain-error review applied to defendant’s procedural argument for remand in light" }, { "docid": "22665357", "title": "", "text": "presented arguments to the district court under § 3553(a) to justify a downward departure, but the court ignored them. The government responds that the district court considered the defendant’s arguments and rejected them, noting the nature of his previous conviction for aggravated assault with a deadly weapon, and recognizing the defendant’s family situation. The district court listened to the arguments and asked questions of defense counsel and the defendant, but the court did not directly address the arguments before reciting the Guidelines calculation and range and choosing a sentence within that range. In fact, the district court did not mention any § 3553(a) factors at all. A survey of recent cases on this topic illustrates the inadequacy of the district court’s explanation. In Rita, the district court acknowledged that the defendant was requesting a downward departure under § 3553(a) and summarized the defendant’s arguments. 127 S.Ct. at 2461. After hearing the government’s response, the court “concluded that he was ‘unable to find that the [report’s recommended] sentencing guideline range ... is an inappropriate guideline range for that, and under 3553 ... the public needs to be protected if it is true, and I must accept as true the jury verdict.’ ” Id. at 2462 (alterations in original). The Supreme Court determined that “the sentencing judge’s statement of reasons was brief but legally sufficient.” Id. at 2469. In United States v. Rodriguez, 523 F.3d 519 (5th Cir.), cert. denied, - U.S. -, 129 S.Ct. 624, 172 L.Ed.2d 616 (2008), the district court overruled the defendant’s written objections to the PSR for the reasons given in the addendum. 523 F.3d at 522. The court then listened to the defendant’s arguments for a sentence at the low end of the Guidelines range, but rejected them and sentenced him at the high end of the range. Id. at 522-23. The district court believed that sentence “adequately addressed the objectives of punishment and deterrence.” Id. at 523. On appeal, this court affirmed, noting that the district court had seen the defendant’s arguments in the objections to the PSR and had expressly adopted the PSR’s findings" }, { "docid": "13169320", "title": "", "text": "623 F.3d 624, 625 (8th Cir.2010). Under this standard, we initially review a sentence for significant procedural error and then, if necessary, for substantive reasonableness. United States v. Fischer, 551 F.3d 751, 754 (8th Cir.2008). Procedural errors include, among other things, “failing to consider the § 3553(a) factors ... or failing to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). As to the section 3553(a) factors, a district judge is not required to recite each factor. United States v. Battiest, 553 F.3d 1132, 1136 (8th Cir.), cert. denied, — U.S. —, 129 S.Ct. 2452, 174 L.Ed.2d 242 (2009). Rather, as we have previously held, “the district court fully considered the section 3553(a) factors and sufficiently explained its decision where the court had significant exposure to the defendant’s PSR, the parties’ sentencing memoranda and their arguments at the sentencing hearing and imposed a sentence which he justified by specific reference to several § 3553(a) factors.” United States v. Bryant, 606 F.3d 912, 919 (8th Cir.2010) (quotations omitted). At sentencing, Petters argued that a reduced sentence was appropriate because, under the guidelines, there was no empirical basis for the harsh sentences given to white-collar offenders based on the amount of loss and because there was a sentencing disparity between Petters and similarly-situated defendants. After the district court heard argument on these points, Petters requested that the district court find “[t]hat the guidelines itself has no empirical basis.” The district court denied that request, explaining that the guidelines were advisory and that it was unnecessary to condemn the guidelines in total. The court then heard from Petters’s attorney, from Petters, and from the government, after which the court referenced each section 3553(a) factor and discussed how those factors applied to Petters. In light of the thorough sentencing hearing in which the district court addressed Petters’s argument concerning the empirical basis for the guidelines, recited the section 3553(a) factors, considered how the section 3553(a) factors applied to Petters, and created a meaningful record for appellate review, we reject Petters’s argument that the" }, { "docid": "4864752", "title": "", "text": "sufficiently rejected the defendant’s request for a downward departure when it simply stated that without downward departure, the Guidelines range was not “inappropriate” and the sentence was “appropriate.” 551 U.S. at 358, 127 S.Ct. 2456. The Supreme Court recognized that the judge could have explained more regarding why it rejected the defendant’s downward departure motion, but noted that the “context and the record make clear that this, or similar, reasoning underlies the judge’s conclusion.” Id. at 359,127 S.Ct. 2456. In this case, the District Court clearly rejected Friedman’s downward departure motion. The District Court explained that it was “convinced based on the testimony at the trial” that Friedman had “no moral objection” to the bribe and that Friedman was not the victim of extortion, but instead was motivated to pay the bribe in order to sell the building quickly and to avoid proper procedures to legalize the sixteenth unit. (App. at 959.) The District Court did not commit procedural error in its resolution of the departure motion. d. Meaningful Consideration of § 3553(a) Factors Friedman’s final argument with respect to his sentence is that the District Court failed to give meaningful consideration to the § 3553(a) factors. In Booker, the Supreme Court held that appellate courts should insure that district courts analyze the § 3553(a) factors when determining sentences for criminal enterprises. 543 U.S. at 261, 125 S.Ct. 738. Sentencing courts must give “meaningful consideration” to the factors in 18 U.S.C. § 3553(a). United States v. Olhovsky, 562 F.3d 530, 546 (3d Cir.2009). A district court’s failfure] to consider the § 3553(a) factors can create a procedurally unreasonable sentence. United States v. Levinson, 543 F.3d 190, 196 (3d Cir.2008). “[T]he district court need not discuss and make findings as to each of the § 3553(a) factors if the record makes clear that the court took the factors into account in sentencing.... ” United States v. Kononchuk, 485 F.3d 199, 204 (3d Cir.2007). Still, “[wjhere one party raises a colorable argument about the applicability of one of the factors, [ ] the court should respond to that argument as part of" }, { "docid": "22665359", "title": "", "text": "and reasoning. Id. at 525. This court found the district court’s reasons adequate in light of Rita. Id. at 525-26. In United States v. Gomez-Herrera, 523 F.3d 554 (5th Cir.), cert. denied, — U.S. -, 129 S.Ct. 624, 172 L.Ed.2d 617 (2008), this court affirmed the defendant’s sentence when the district court rejected his arguments for a downward departure. The defendant had filed a sentencing memorandum in which he analyzed the various § 3553(a) factors and requested a below-Guidelines sentence. 523 F.3d at 556. He made the same arguments at the sentencing hearing, and the district court noted them but “was persuaded on the basis of the arguments made both here today and in the sentencing memorandum that [the court] should not depart downward from the Guideline range.” Id. at 557. In affirming, this court found the district court had considered the defendant’s arguments and adequately addressed them. Id. at 565. In United States v. Bonilla, 524 F.3d 647 (5th Cir.2008), cert, denied, — U.S. -, 129 S.Ct. 904, — L.Ed.2d - (2009), the defendant objected to the PSR, but the district court overruled the objections. On appeal, this court opined: “Error does not necessarily result when the district court’s reasons, as in this case, are not clearly listed for review.” 524 F.3d at 657. The district court stated that it had “considered the arguments made earlier ... as well as the information in the report,” and also that it kept “in mind the factors that the court has to consider in imposing a sentence.” Id. Based on these statements, this court analyzed the record to determine if the arguments and report stated sufficient reasons to uphold the sentence. Id. at 658. The court found such support, but strongly recommended that the district court explicitly state its reasons on the record. Id. (“A clear statement of reasons on the record also serves to prevent the inefficiency that would result from remand and resentencing if on appeal we had been unable to determine the court’s reasons from the record.”). In Rita, Rodriguez, and Gomez-Herrera, the sentencing court acknowledged that § 3553(a)" }, { "docid": "20730251", "title": "", "text": "when the defendant offers relevant arguments in favor of a lower sentence, the sentencing judge may not rest solely on “a bare recitation of the Guideline’s calculation.” Id. at 363; see also United States v. Tisdale, 264 Fed.Appx. 403, 411 (5th Cir.2008) (unpublished) (“Under Rita ... failure to offer any reason whatsoever for rejecting the defendants’ § 3553(a) arguments or any explanation for following the guidelines range constitutes failure to consider the § 3553(a) factors.”). We have upheld sentences where the court at least “acknowledged that § 3553(a) arguments had been made and devoted a few words to rejecting them.” Mondragon—Santiago, 564 F.3d at 363. Although a court must generally say more if it imposes a non-guidelines sentence, it “need not engage in robotic incantations that each statutory factor has been considered.” Fraga, 704 F.3d at 439 (internal quotation marks omitted). We have clarified, further, that “[e]rror does not necessarily result when the district court’s reasons ... are not clearly listed for our review.” United States v. Bonilla, 524 F.3d 647, 657 (5th Cir.2008). We focus on the district court’s statements in the context of the sentencing proceeding as a whole. See id. Ours, therefore, is a .pragmatic, totality-of-the-circumstances review into whether the district court evaluated the parties’ sentencing arguments and rooted its sentence in permissible sentencing factors. In this case, we find the district court sufficiently discharged its obligation under § 3553(c). To begin with, it explained that it had reviewed all the relevant materials and recounted Diaz Sanchez’s principal arguments for a departure or a variance. On two occasions, the court emphasized that it adopted the PSR and its addenda, which themselves examine those arguments. It then critically engaged the positions of both defense and government counsel, emphasizing Diaz Sanchez’s criminal history. After announcing sentence, the district court entertained defense counsel’s objection and even offered to “reset” the sentencing at defense counsel’s election. Diaz Sanchez does not dispute that all his arguments were asserted and heard. The government, meanwhile, pressed for a middle-to-upper guidelines-range sentence, emphasizing Diaz Sanchez’s criminal history and arguing the court should reject Diaz Sanchez’s" }, { "docid": "22907689", "title": "", "text": "Mr. Martinez-Barragan receive counseling to help address his problems with domestic violence. Reviewing the transcript as a whole, it is clear that the district court understood its discretion, considered many facts specific to Mr. Martinez-Barragan, and applied the Guidelines as advisory. 2. Explaining the Sentence Mr. Martinez-Barragan also claims that his sentence was unreasonable because the district court failed to adequately explain the basis for its sentence. A district court must explain its reasons for imposing a sentence. United States v. Sanchez-Juarez, 446 F.3d 1109, 1116 (10th Cir.2006); 18 U.S.C. § 3553(c). When the defendant makes “a nonfrivolous argument for leniency,” the district court “must somehow indicate that [it] did not ‘rest on the guidelines alone, but considered whether the guideline sentence actually conforms, in the circumstances, to the statutory factors.’ ” United States v. JarrilloLuna, 478 F.3d 1226, 1230 (10th Cir.2007) (quoting Sanchez-Juarez, 446 F.3d at 1117). The court must provide only a general statement of its reasons, United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.2007), cert. denied, — U.S. -, 128 S.Ct. 113, 169 L.Ed.2d 80 (2007), and need not explicitly refer to either the § 3553(a) factors or respond to “every argument for leniency that it rejects in arriving at a reasonable sentence.” JarrilloLuna, 478 F.3d at 1229; United States v. A.B., 529 F.3d 1275, 1289 (10th Cir.2008) (noting that “when the district court adheres to the advisory Guidelines range,” § 3553(c) does not require a “particularized analysis” of the statutory factors), cert. denied, — U.S.-, 129 S.Ct. 440, — L.Ed.2d-2008 WL 4189667, at *1 (2008). A sentence at the low end of the Guidelines range is “a functional rejection” of the defendant’s request for a below-Guidelines sentence. Sanchez-Juarez, 446 F.3d at 1115. In Sanchez-Juarez, the district court heard defendant’s arguments for a downward variance, noted that it had reviewed the PSR’s factual findings, considered the Guidelines applications, and cited the defendant’s offense conduct. Id. But we observed that, at a minimum, a sentencing court must “ ‘state its reasons for imposing a given sentence.’ ” Id. at 1116 (quoting United States v. Rose, 185" }, { "docid": "22703743", "title": "", "text": "address his arguments for a downward departure and in not fully explaining its reasoning for imposing a sentence at the top of the guidelines range. The government argues that plain error review should apply to this issue because Rodriguez did not object to the adequacy of the district court’s reasons at sentencing. We need not decide the appropriate level of review, because as explained below, the district court’s reasons were sufficient under any standard. Prior to Rita, this court held that if a district court imposes a sentence within the properly determined guidelines range, little explanation is required. See United States v. Mares, 402 F.3d 511, 519 (5th Cir.2005). In Rita, the Court indicated that more than a brief statement may be required when a district court is presented with nonfrivolous arguments for a sentence outside the Guidelines. 127 S.Ct. at 2468-69. Nevertheless, the Court concluded that the district court’s reasons for rejecting the defendant’s § 3553(a) arguments for a non-Guidelines sentence were, although brief, legally sufficient. Id. at 2469. Specifically, the court noted that the record made clear that the judge listened to and considered the arguments and evidence but simply found the circumstances insufficient to warrant a sentence below the Guidelines range. Id. The judge said that the range was not “inappropriate” and that a sentence at the bottom of the range was “appropriate.” Id. The Court acknowledged that the judge might have said more, but was not required to do so. Id. Here, the district court’s comments at sentencing reflect adequate consideration of the § 3553(a) factors. See Mares, 402 F.3d at 519. At the beginning of the sentencing hearing, the court had before it the PSR, the defendant’s objections to the PSR and a statement from the government adopting the matters set forth in the PSR. The defendant stated that his objections were ones the court had seen before, and stood on them as written. In overruling Rodriguez’s objections, the district court adopted the findings, reasoning, and Guidelines calculations of the PSR. Rodriguez’s counsel argued for a sentence at the bottom or below the guideline range," } ]

[ { "docid": "10393024", "title": "", "text": "DECISION AND ORDER RANDA, District Judge. This case is about Congress’ authority under the Constitution to pass the Freedom of Access to Clinics Entrances Act, codified at 18 U.S.C. § 248, et seq. (“FACE”). More specifically, as charged in the Information, this case is about that portion of FACE which prohibits the non-violent physical obstruction of entrances to reproductive health services clinics. Because the regulation of this type of conduct through the use of the Commerce Clause power is unprecedented and would permit Congress to exceed the scope of its enumerated power, thereby upsetting the delicate federal balance embodied in the Tenth Amendment and elsewhere in the Constitution, and further because private action is unreachable under Section 5 of the Fourteenth Amendment, that portion of FACE is unconstitutional and void. ANALYSIS “It is, emphatically, the province and duty of the judicial department, to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177, 1 Cranch 137, 2 L.Ed. 60 (1803). Indeed, “[t]his is of the very essence of judicial duty.” Id. at 178; see also, Bell v. Maryland, 378 U.S. 226, 244, 84 S.Ct. 1814, 1824, 12 L.Ed.2d 822 (1964) (Douglas, J., concurring). Therefore, though not written into the Constitution, the power of judicial review has become a bedrock principle of our jurisprudence. In exercising this power, the Court must be mindful that “[t]he powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written.” Marbury, 5 U.S. at 176. I. THE STATUTE The pertinent part of FACE reads as follows: § 248. Freedom of access to clinic entrances (a) Prohibited activities. — Whoever— (1) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services; ... shall be subject to the penalties provided in subsection (b) and the civil remedies provided" } ]

[ { "docid": "2238879", "title": "", "text": "others for the purpose of depriving third parties of their lawful rights.” Madsen, 512 U.S. at 776, 114 S.Ct. 2516. In addition, we hold that individuals may be convicted for conspiring to engage in conduct prohibited by FACE. Finally, the district court did not abuse its discretion in requiring defendant Hudson to participate in a mental health program as a condition of his supervised release. The decision of the district court is Affirmed. . Each of the defendants had participated in a prior clinic obstruction using a similar mecha'nism. Defendant Wilson was indicted. We reversed the district court's dismissal of the charges, concluding that Congress had Commerce Clause authority to pass FACE, United States v. Wilson, 73 F.3d 675 (7th Cir.1995), certiorari denied, - U.S. -, 117 S.Ct. 47, 136 L.Ed.2d 12 (1996), and Wilson was convicted on remand. Defendant Hudson also was previously indicted and convicted, and we affirmed the convictions on appeal. United States v. Soderna, 82 F.3d 1370 (7th Cir.1996), certiorari denied, - U.S. -, 117 S.Ct. 507, 136 L.Ed.2d 398 (1996). . As the firemen were working to release defendant Wilson from the car blocking the rear exit, the fire chief advised Wilson that because people were able to enter the building, he may want to release himself. While a city ordinance required that a second exit be available before people could enter the building, the fire chief had determined that the building could be used safely because the fire department was present to assist in case of a fire. . Defendants recognize as much, conceding that \"[a]lthough decided by the Seventh Circuit, issues of the constitutionality of FACE are revisited in these appeals in order to preserve the appellants’ opportunity for petitioning the Supreme Court for discretionary review.” (Appellants' Br. at 2). . Indeed, defendants recognize as much, conceding that the First Amendment protects “the exercise of the fundamental rights of free speech and association to combine with others in pursuit of common goals by lawful means\" (Appellants’ Br. at 25) (emphasis added); however, defendants here have not combined with others using lawful means." }, { "docid": "1916196", "title": "", "text": "which relief can be granted. First, the Court finds that Congress acted within its authority under the Commerce Clause when it enacted FACE. Second, the Court finds that FACE does not impermissibly regulate protected expression or burden religion. Instead, FACE is directed at regulating unprotected speech and conduct, and any regulation of protected speech is incidental to the content or viewpoint of that speech. Third, the Court finds that Plaintiffs have failed to show that FACE is vague or overbroad. Fourth, the Court finds the punishments imposed and the statutory damages allowed by FACE do not violate the Eighth Amendment prohibition against cruel and unusual punishment and excessive fines. Finally, having found that FACE does not violate the First, Fourth, Fifth, Eighth or Tenth Amendments, the Court finds that enforcement of FACE by state officials does not in any manner violate the Fourteenth Amendment. Accordingly, IT IS ORDERED GRANTING Defendants’ and Intervenors’ Motions to Dismiss (docs. #33, 53). FURTHER ORDERED DENYING Plaintiffs’ Motion for Preliminary Injunction (doc. # 1) on mootness grounds. FURTHER ORDERED dismissing this action with prejudice. . \"Physical obstruction\" means \"rendering impassable ingress to or egress from a facility that provides reproductive health services” or \"rendering passage to or from such a facility ... unreasonably difficult or hazardous.” 18 U.S.C. § 248(e)(4). . “Intimidate” means “to place a person in reasonable apprehension of bodily harm to him- or herself or to another.” , 18 U.S.C. § 248(e)(3). . “Interfere with” means \"to restrict a person's freedom of movement.” 18 U.S.C. § 248(e)(2). . \"Reproductive health services” refers to \"reproductive health services provided in a hospital, clinic, physician’s office, or other facility, and includes medical, surgical, counselling or referral services relating to the human reproductive system, including services relating to pregnancy or the termination of a pregnancy.” 18 U.S.C. § 248(e)(5). . See Criminal Complaint in United States of America v. Ronald Dean Brock, et al., attached as Exhibit 4 to Defendants' Memorandum. . See Plaintiffs' Memorandum in Opposition to Defendants' Motion for Revised Briefing and Hearing Schedule, pp 2-3. . It is true that FACE also prohibits" }, { "docid": "2238855", "title": "", "text": "a special condition of his supervised release, the court ordered Hudson to “participate in a mental health treatment program and * * * take any and all prescribed medications as may be directed by the treatment provider and participate in any psychological and/or psychiatric evaluations and counseling as may be directed by [his] supervising probation officer.” Defendants appeal. We affirm. II. Freedom of Access to Clinic Entrances Act In 1994, reacting to a nationwide problem of violent protests and blockades aimed at both abortion clinics and their patients and employees, “Congress enacted the Freedom of Access to Clinic Entrances Act, an act making it a federal crime to engage in certain prohibited activities interfering with the provision or obtainment of ‘reproductive health services.’ ” United States v. Bird, 124 F.3d 667, 670 (5th Cir.1997), certiorari denied, — U.S. -, 118 S.Ct. 1189, 140 L.Ed.2d 320 (1998). “Between 1977 and early 1993, more than 1,000 acts of violence against abortion providers and more than 6,000 clinic blockades were reported in the United States.” American Life League, Inc. v. Reno, 47 F.3d 642, 646 (4th Cir.1995), certiorari denied, 516 U.S. 809, 116 S.Ct. 55, 133 L.Ed.2d 19 (1995). The wave of violence, intimidation, and interference included “Murder, arson, kidnappings, bombings and bomb threats, assaults, death threats, trespasses, vandalism, gas attacks, military-style assaults, and blockades of entrances to clinics.” United States v. Soderna, 82 F.3d 1370, 1372 (7th Cir.1996), certiorari denied, - U.S. -, 117 S.Ct. 507, 136 L.Ed.2d 398 (1996). Because the local law enforcement agencies were unable or sometimes unwilling to take action to protect the patients and staffs of these facilities, Congress concluded that the Act was necessary to protect and promote public safety and health. American Life, 47 F.3d at 646. The Act “forbids the use of force or threats of force or physical obstruction deliberately to injure, intimidate, or interfere with people seeking to obtain or to provide any reproductive medical or other health services, not just abortion, and also people seeking to exercise their religious rights in a church or other house of worship.” Soderna, 82 F.3d" }, { "docid": "6013192", "title": "", "text": "generalized restriction on protesting and thus is unconstitutional. We vacate this portion of the dis trict court’s order and remand the case for the district court to reform its preliminary injunction in conformity with Madsen and this opinion. (3) Clinic and residential blockades Paragraph (A)(4) also enjoins defendants from blocking and attempting to block, barricade, or obstruct the entrances, exits, or driveways of the residences of the Clinic staff; and inhibiting or impeding or attempting to impede the free ingress or egress of persons to any street providing the sole access to the residences of Clinic staff. The Court in Madsen did not address the provision of the injunction in that case which prohibited defendants from impeding access to streets that provide the sole access to the staffs residences. As a constitutional matter, the restrictions in this case on obstructing the staffs residences and impeding access to the streets serving those residences are not problematic because they burden no more speech than is necessary to serve the State’s significant interest in promoting the free flow of traffic on public streets. See Madsen, 512 U.S. at 767-69, 114 S.Ct. at 2526. The injunction’s prohibition of these activities easily satisfies Madsen’s standard. However, this portion of the injunction is vacated as moot to the extent that it applies to the Lucero residence. (4) Floating 20-foot buffer zone Finally, Paragraph (A)(5) enjoins defendants from knowingly being within 20 feet of Dr. Lucero, his family, and any person seeking to obtain or provide Clinic services. As to Dr. Lucero and his family, this portion of the injunction is vacated as moot. At oral argument, plaintiffs’ counsel conceded that the district court erred in including “any person seeking to obtain or provide reproductive health services from or by [plaintiffs]” within the ambit of the floating 20-foot buffer zone. Accordingly, we vacate the injunction in this'regard, and remand so that the district court may reform its preliminary injunction. See Schenck, — U.S. at-- -, 117 S.Ct. at 866-67 (indicating that such a floating buffer zone is unconstitutional because it burdens more speech than is necessary to" }, { "docid": "20329166", "title": "", "text": "other attempt to physically blockade clinic property in an effort to deprive women of their constitutional right to choose an abortion. Indeed, the demonstrations generally were orderly and peaceful, a fact Judge Oakes himself acknowledges. See Oakes op. at Background II-A (“The demonstrations are mostly peaceful in nature.”); see also Pro-Choice, 799 F.Supp. at 1423. With this more accurate picture of the record in mind, I address the constitutionality of the buffer zone. Paragraph 1(b) of the injunction creates a “First Amendment free zone” around the clinics, banning, as it does, the entire universe of expressive activity within fifteen feet of the clinics, except for the allowance of two sidewalk counselors. The district court provided for the buffer zone in an effort to ensure “unfettered access” to the clinics as well as to “prevent defendants from crowding patients and invading their personal space.” Pro-Choice, 799 F.Supp. at 1434. As the original panel determined, this restriction burdens more speech than necessary to accomplish these goals. See Pro-Choice Network v. Schenck, 67 F.3d 359, 370-371 (2d Cir.1994). Significantly, paragraph 1(b) is cumulative. Other portions of the injunction, left intact by the panel majority’s opinion, prohibit all obstructionist activities, thereby promoting the aforementioned goals. Specifically, paragraph 1(a) of the injunction, without any buffer zone, prohibits protestors from “trespassing on, sitting in, blocking, impeding, or obstructing access to, ingress into or egress from any facility, including, but not limited to, the parking lots, parking lot entrances, driveways, and driveway entrances, at which abortions are performed.” Indeed, in the words of the district court, paragraph 1(a) covers obstructing and impeding access to and egress from the clinics, congregating in private driveways and parking lots, surrounding the cars of patients and staff as they try to enter the driveways and parking lots of the clinics, and crowding, shoving or interfering with patients and staff as they approach the clinic on foot. Pro-Choice, 799 F.Supp. at 1434. Paragraph 1(c), moreover, bars protestors from “physically abusing, grabbing, touching, pushing, shoving, or crowding” any clinic staff member or patient. Id. at 1440 (emphasis added). Finally, paragraph 1(d) enjoins “using" }, { "docid": "22422530", "title": "", "text": "women to choose to have an abortion”). On September 27, 1990, three days after respondents filed their complaint and one day before the scheduled large-scale blockade, the District Court issued a TRO. The parties stipulated that the TRO might remain in force until decision on respondents’ motion for a preliminary injunction. In pertinent part, the TRO enjoined defendants from physically blockading the clinics, physically abusing or tortiously harassing anyone entering or leaving the clinics, and “demonstrating within 15 feet of any person” entering or leaving the clinics. As an exception to this 15-foot “buffer zone” around people, the TRO allowed two sidewalk counselors to have “a conversation of a nonthreatening nature” with individuals entering or leaving the clinic. If the individuals indicated that they did not want the counseling, however, the counselors had to “cease and desist” from counseling. At first, defendants complied with the TRO, holding a peaceful demonstration rather than the scheduled blockade. Subsequently, they stipulated that “physical blockades” could be enjoined, and they conducted no such blockades between the issuance of the TRO and the issuance of the preliminary injunction 17 months later. Defendants, however, continued to engage in protests that the District Court labeled “constructive blockades,” as well as sidewalk counseling. Constructive blockades consisted of “demonstrating and picketing around the entrances of the clinics, and . . . harassing patients and staff entering and leaving the clinics.” Id., at 1424. This included many of the protest elements described above, including attempts to intimidate or impede cars from entering the parking lots, congregating in driveway entrances, and crowding around, yelling at, grabbing, pushing, and shoving people entering and leaving the clinics. The purpose of constructive blockades was the same as physical blockades: “to prevent or dissuade patients from entering the clinic.” Ibid. Clinic volunteer escorts testified that the protests were much quieter, calmer, and smaller during the first month after the TRO issued, but that the protests returned to their prior intensity thereafter, including aggressive sidewalk counseling with occasional shoving and elbowing, trespassing into clinic buildings to continue counseling of patients, and blocking of doorways and driveways." }, { "docid": "15894239", "title": "", "text": "the plaintiffs are therefore entitled to injunctive relief against her. For the reasons set forth we agree that injunctive relief is warranted. The Freedom of Access to Clinic Entrances Act provides civil remedies and criminal penalties against anyone who “by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services....” 18 U.S.C. § 248(a)(1). The statute defines “physical obstruction” as “rendering impassable ingress to or egress from a facility that provides reproductive health services ... or rendering passage to or from such a facility ... unreasonably difficult or hazardous.” Id. § 248(e)(4). F.A.C.E. empowers states to bring civil suits seeking remedies based upon the threat of future violation, even without proof of past violations. “If the Attorney General of a State has reasonable cause to believe that any person or group of persons is being, has been, or may be injured by conduct constituting a violation of this section, such Attorney General may commence a civil action in the name of such State....” Id. § 248(c)(3)(A). Such remedies may include “temporary, preliminary or permanent injunctive relief, compensatory damages, and civil penalties....\" Id. § 248(c)(8)(B). On appeal, defendant Melfi does not dispute the District Court’s determination that her behavior was intentional or motivated by the fact that the clinics provide reproductive health services. Instead, she contends that her protest activities do not constitute acts of force, threats of force, or physical obstruction. As a general matter, the District Court determined that the plaintiffs are likely to prove that certain protestor activities violated F.A.C.E. by disrupting access to and the administration of care at reproductive health care facilities through physical obstruction and threats of force. ' The record on that point appears strong. In terms of physical obstruction, the record contains evidence that some of the defendants impeded the operation of those facilities by engaging in protest" }, { "docid": "20329110", "title": "", "text": "provision”) establishes a fifteen-foot buffer zone around the entrances to all facilities in the Western District of New York at which abortions are performed. The provision enjoins defendants, as well as their agents and representatives “and all other persons ... acting in their behalf or in concert with them,” from demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of such facilities, or within fifteen feet of any person or vehicle seeking access to or leaving such facilities, except that the form of demonstrating known as sidewalk counseling by no more than two persons ... shall be allowed[.] “Sidewalk counseling,” as described in paragraph 1(c), consists of “a conversation of a non-threatening nature by not more than two people with each person or group of persons they are seeking to counsel.” In short, this provision establishes what might be deemed a permeable buffer zone with a “floating” fifteen foot radius: demonstrators must remain at least fifteen feet away from each entrance to an abortion facility, the entrance to its parking area and its driveways, and from women, doctors, and other staff at the facility seeking access to or leaving the facility, with the exception that two “counselors” are allowed to enter the buffer zone to engage in “non-threatening conversation” with each person or group of persons approaching or leaving the facility. Project Rescue contends that the buffer zone provision fails the Madsen test in that it “burdens more speech than necessary” to accomplish its purposes. In particular, it contends, the buffer zone is not necessary to effectuate the goal of securing unfettered access to the clinics because paragraph 1(a) of the injunction, which prohibits Project Rescue from impeding or obstructing access to the clinics, already accomplishes that task. In evaluating whether the fifteen-foot buffer zone is more burdensome than necessary, we note that the Supreme Court in Madsen found a thirty-six-foot buffer zone necessary to protect the government interests enumerated in that case. — U.S. at -, 114 S.Ct. at 2527. The thirty-six-foot buffer" }, { "docid": "22422553", "title": "", "text": "clinic parking lots can do so. As in Madsen, the record shows that protesters purposefully or effectively blocked or hindered people from entering and exiting the clinic doorways, from driving up to and away from clinic .entrances, and from driving in and out of clinic parking lots. Based on this conduct — both before and after the TRO issued — the District Court was entitled to conclude that the only way to ensure access was to move back the demonstrations away from the driveways and parking lot entrances. Similarly, sidewalk counselors — both before and after the TRO — followed and crowded people right up to the doorways of the clinics (and sometimes beyond) and then tended to stay in the doorways, shouting at the individuals who had managed to get inside. In addition, as the District Court found, defendants’ harassment of the local police made it far from certain that the police would be able to quickly and effectively counteract protesters who blocked doorways or threatened the safety of entering patients and employees. Based on this conduct, the District Court was entitled to conclude that protesters who were allowed close to the entrances would continue right up to the entrance, and that the only way to ensure access was to move all protesters away from the doorways. Although one might quibble about whether 15 feet is too great or too small a distance if the goal is to ensure access, we defer to the District Court’s reasonable assessment of the number of feet necessary to keep the entrances clear. See Madsen, 512 U. S., at 769-770 (“[S]ome deference must be given to the state court’s familiarity with the facts and the background of the dispute between the parties even under our heightened review”). Petitioners claim that unchallenged provisions of the injunction are sufficient to ensure this access, pointing to the bans on trespassing, excessive noise, and “blocking, impeding or obstructing access to” the clinics. They claim that in light of these provisions, the only effect of a ban on “demonstrating” within the fixed buffer zone is “a ban on" }, { "docid": "2755510", "title": "", "text": "OPINION OF THE COURT OAKES, Circuit Judge. In this case, the United States appeals the decision of the District Court for the District of New Jersey (John C. Lifland, Judge) that the defendants are jointly and severally liable, rather than individually liable, for statutory damages of $5,000 “per violation” of the Freedom of Access to Clinic Entrances Act (“FACE” or “the Act”), 18 U.S.C. § 248 (2000). Several defendants filed cross appeals, arguing that FACE is a violation of Congress’s authority under the U.S. Constitution’s Commerce Clause and of the First Amendment. We conclude that damages under FACE are properly awarded jointly and severally among defendants and that FACE is constitutional. Accordingly, we affirm the district court. BACKGROUND On April 18, 1997, the United States, through the United States Attorney General, filed a complaint for injunctive relief and statutory damages against thirty defendants who, the Attorney General alleged, were an ongoing threat to the Metropolitan Medical Associates (“MMA”), a reproductive health clinic in Englewood, New Jersey, its employees and persons seeking reproductive health services at MMA. Specifically, the Attorney General alleged that each defendant participated in one, two, or three protests that obstructed access to MMA in violation of FACE. In the prayer for relief in the Complaint, the Attorney General elected to pursue statutory damages of $5,000 per defendant in lieu of proving actual damages to MMA. The district court held an evidentiary hearing on July 8-10, 1997, on the Attorney General’s motion for a preliminary injunction. The evidence at the hearing demonstrated that five of the named defendants blocked access to MMA on August 7, 1996, twelve of the named defendants blocked access to MMA on January 18, 1997, and nineteen of the named defendants blocked access to MMA on March 15, 1997. Accordingly, on December 22, 1997, the district court enjoined defendants and their employees, agents, and others acting in concert with them, from blocking and impeding access to MMA, intimidating or attempting to intimidate or interfere with persons seeking access to MMA, and entering or being on MMA premises. After the preliminary injunction was granted, the" }, { "docid": "20329167", "title": "", "text": "Significantly, paragraph 1(b) is cumulative. Other portions of the injunction, left intact by the panel majority’s opinion, prohibit all obstructionist activities, thereby promoting the aforementioned goals. Specifically, paragraph 1(a) of the injunction, without any buffer zone, prohibits protestors from “trespassing on, sitting in, blocking, impeding, or obstructing access to, ingress into or egress from any facility, including, but not limited to, the parking lots, parking lot entrances, driveways, and driveway entrances, at which abortions are performed.” Indeed, in the words of the district court, paragraph 1(a) covers obstructing and impeding access to and egress from the clinics, congregating in private driveways and parking lots, surrounding the cars of patients and staff as they try to enter the driveways and parking lots of the clinics, and crowding, shoving or interfering with patients and staff as they approach the clinic on foot. Pro-Choice, 799 F.Supp. at 1434. Paragraph 1(c), moreover, bars protestors from “physically abusing, grabbing, touching, pushing, shoving, or crowding” any clinic staff member or patient. Id. at 1440 (emphasis added). Finally, paragraph 1(d) enjoins “using any mechanical loudspeaker or sound amplification device or making any excessively loud sound which injures, disturbs, or endangers the health or safety of any patient or employee of a health care facility at which abortions are performed.” Id. The inescapable conclusion is that “the [buffer] zone provision ... forbids conduct even beyond that which would obstruct or impede access.” Pro-Choice, 67 F.3d at 370. Indeed, within the fifteen-foot buffer zone, the preliminary injunction restricts such sacrosanct First Amendment conduct as holding a placard containing an antiabortion message, passive leafletting or handbilling, silent picketing and even the mere voicing of protest. The Supreme Court, however, consis tently has confirmed not only the constitutionally protected status of such activities but their importance in our society. See, e.g., Boos v. Barry, 485 U.S. 312, 318, 108 S.Ct. 1157, 1162, 99 L.Ed.2d 333 (1988) (stating that law prohibiting display of certain signs “operates at the core of the First Amendment”); Carey v. Brown, 447 U.S. 455, 466-67, 100 S.Ct. 2286, 2293, 65 L.Ed.2d 263 (1980) (“Public-issue picketing, an exercise" }, { "docid": "22422531", "title": "", "text": "TRO and the issuance of the preliminary injunction 17 months later. Defendants, however, continued to engage in protests that the District Court labeled “constructive blockades,” as well as sidewalk counseling. Constructive blockades consisted of “demonstrating and picketing around the entrances of the clinics, and . . . harassing patients and staff entering and leaving the clinics.” Id., at 1424. This included many of the protest elements described above, including attempts to intimidate or impede cars from entering the parking lots, congregating in driveway entrances, and crowding around, yelling at, grabbing, pushing, and shoving people entering and leaving the clinics. The purpose of constructive blockades was the same as physical blockades: “to prevent or dissuade patients from entering the clinic.” Ibid. Clinic volunteer escorts testified that the protests were much quieter, calmer, and smaller during the first month after the TRO issued, but that the protests returned to their prior intensity thereafter, including aggressive sidewalk counseling with occasional shoving and elbowing, trespassing into clinic buildings to continue counseling of patients, and blocking of doorways and driveways. Alleging that Project Rescue and five individual defendants (including petitioner Schenck) breached the TRO on five separate occasions from late October 1990 through December 1990, respondents sought four contempt citations. A fifth contempt citation for a 1991 incident was sought against petitioner Schenck and another individual defendant. Throughout 1991 and into 1992, the District Court held 27 days of hearings in these contempt proceedings, and issued opinions concluding that five of the six incidents justified a finding of civil contempt. In February 1992, after hearing 12 additional days of testimony, the District Court issued the injunction, parts of which are challenged here. The relevant provisions are set forth in the margin. Although the injunction largely tracked the TRO, there were significant changes. First, while the TRO banned “demonstrating... within fifteen feet of any person” entering or leaving the clinics, the injunction more broadly banned “demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of such facilities” (fixed buffer zones)," }, { "docid": "2238878", "title": "", "text": "the district judge had ample opportunity to observe defendant Hudson. He appeared both pro se and through counsel, providing the court with even more opportunity to assess his behavior. Contrary to defendant’s assertion, the district court was not confusing behavior arising from a mental condition and behavior representing a rational decision to protest abortion as seen by the fact that the court did not require codefendant Wilson to participate in a mental health program. The district court made its decision based on an individualized assessment of Hudson’s past and present behavior and as such did not abuse its discretion. IV. Conclusion Based on the foregoing, we affirm the judgment of the district court and sustain the constitutionality of FACE. Having decided the exact issue in Soderna, we reaffirm this Court’s holding that FACE does not violate the Free Speech Clause of the First Amendment. We also conclude that FACE does not violate the defendants’ right of freedom of association, since “[t]he freedom of association protected by the First Amendment does not extend to joining with others for the purpose of depriving third parties of their lawful rights.” Madsen, 512 U.S. at 776, 114 S.Ct. 2516. In addition, we hold that individuals may be convicted for conspiring to engage in conduct prohibited by FACE. Finally, the district court did not abuse its discretion in requiring defendant Hudson to participate in a mental health program as a condition of his supervised release. The decision of the district court is Affirmed. . Each of the defendants had participated in a prior clinic obstruction using a similar mecha'nism. Defendant Wilson was indicted. We reversed the district court's dismissal of the charges, concluding that Congress had Commerce Clause authority to pass FACE, United States v. Wilson, 73 F.3d 675 (7th Cir.1995), certiorari denied, - U.S. -, 117 S.Ct. 47, 136 L.Ed.2d 12 (1996), and Wilson was convicted on remand. Defendant Hudson also was previously indicted and convicted, and we affirmed the convictions on appeal. United States v. Soderna, 82 F.3d 1370 (7th Cir.1996), certiorari denied, - U.S. -, 117 S.Ct. 507, 136 L.Ed.2d 398 (1996)." }, { "docid": "22422539", "title": "", "text": "Appeals then heard the case en banc, and affirmed the District Court by a divided vote. 67 F. 3d 377 (1995). Each of two opinions garnered a majority of the court. Judge Oakes’ lead opinion, joined by eight other judges, affirmed for reasons that closely track the reasoning of the District Court. Id., at 388-392. A concurring opinion by Judge Winter, joined by nine other judges, affirmed primarily on the ground that the protesters’ expressive activities were not protected by the First Amendment at all, and because the District Court’s injunction was a “reasonable response” to the protesters’ conduct. Id., at 396, 398. We granted certiorari. 516 U. S. 1170 (1996). 1 — ( I-H A Petitioners challenge three aspects of the injunction: (i) the floating 15-foot buffer zones around people and vehicles seeking access to the clinics; (ii) the fixed 15-foot buffer zones around the clinic doorways, driveways, and parking lot entrances; and (iii) the \"cease and desist” provision that forces sidewalk counselors who are inside the buffer zones to retreat 15 feet from the person being counseled once the person indicates a desire not to be counseled. Because Madsen bears many similarities to this case and because many of the parties’ arguments depend on the application of Madsen here, we review our determination in that case. A Florida state court had issued a permanent injunction enjoining specified organizations and individuals from blocking or interfering with clinic access and from physically abusing people entering or leaving the clinic. Six months after the injunction issued, the court found that protesters still impeded access by demonstrating on the street and in the driveways, and that sidewalk counselors approached entering vehicles in an effort to hand literature to the occupants. In the face of this evidence, the court issued a broader injunction that enjoined the defendant protesters from “ ‘physically abusing, grabbing, intimidating, harassing, touching, pushing, shoving, crowding or assaulting’ ” anyone entering or leaving the clinic; from “ ‘congregating, picketing, patrolling, demonstrating or entering that portion of public right-of-way or private property within [36] feet of the property line of the" }, { "docid": "10488279", "title": "", "text": "obstructing and impeding access to and egress from the clinics, congregating in private driveways and parking lots, surrounding the cars of patients and staff as they try to enter the driveways and parking lots of the clinics, and crowding, shoving or interfering with patients and staff as they approach the clinic on foot. As the Second Circuit noted in Terry, there is simply no First Amendment right to impede or obstruct access to public or private buildings. Terry, 886 F.2d at 1364 (citations omitted). Likewise, there is no First Amendment right to picket in a private driveway or parking lot. Paragraph (a) also enjoins trespassing on all areas of plaintiffs’ health care facilities including parking lots and other surrounding property. This provision is necessary because of the uncontroverted evidence that defendants continuously trespass on the clinics’ private property while they are demonstrating, picketing and “sidewalk counseling,” as well as when they engage in physical “blockades.” There is simply no First Amendment right to trespass upon private property, even when access to that property may be the only, or most effective, way to reach the intended audience. See Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976) (finding no constitutional right to engage in labor picketing in a shopping center, even though picketing in that location was the only effective way for the labor union to reach its intended audience). Paragraph (b) of the preliminary injunction secures unfettered access to the clinics by setting dual “clear zones” of fifteen feet around entrances and fifteen feet around people and vehicles seeking access. The “clear zones” are necessary to ensure that people and vehicles seeking access to the clinics will not be impeded, and will be able to determine readily where the entrances are located. Further, the “clear zones” will prevent defendants from crowding patients and invading their personal space. The Supreme Court has upheld “clear zones” in other demonstration contexts. See, e.g., Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (upholding a Washington D.C. ordinance prohibiting picketing within 500 feet of a foreign" }, { "docid": "2238850", "title": "", "text": "CUMMINGS, Circuit Judge. Defendants George Lyman Wilson and Colin Lester Hudson appeal from their convictions for violating the Freedom of Access to Clinic Entrances Act of 1994,18 U.S.C. § 248 (“FACE”), raising a facial challenge to the Act’s constitutionality. Specifically, defendants claim that FACE violates their First Amendment right of freedom of speech by deterring the expression of a particular point of view and their right of freedom of association. They further allege that their convictions for conspiring to engage in conduct prohibited by FACE violate the First Amendment. In addition, defendant Hudson claims that the district court-abused its discretion in requiring him to participate in a mental health program as a condition of his supervised release. Based on this Court’s decision in United States v. Soderna, 82 F.3d 1370 (7th Cir.1996), certiorari denied, — U.S. -, 117 S.Ct. 507, 136 L.Ed.2d 398 (1996), and the Supreme Court’s decision in Madsen v. Women’s Health Center, Inc., 512, U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994), we sustain the constitutionality of FACE and affirm defendants’ convictions. We also find that the district court did not abuse its discretion in requiring defendant Hudson to participate in a mental health program as a condition of his supervised release. I. Facts Defendants are abortion protestors. On September 20, 1996, defendants blockaded the two entrances to the Wisconsin Women’s Health Care Center (“the Clinic”) in Milwaukee. The Clinic is in the business of providing reproductive health care services, including abortions. In order to block the entrances, defendants encased themselves in cars, defendant Hudson in a brown Buick at the front entrance and defendant Wilson in a dark blue Oldsmobile at the rear. Specifically, defendants sat on the ground underneath the cars with their bodies extending upright into the cars through holes cut in the floor. The defendants, facing the rear of the cars, were restrained by two I-beams sandwiched together with a circle cut out around each defendant’s neck. The I-beams were fastened together by a slide bolt mechanism and were filled with different sizes of pipe in order to conceal the release mechanism." }, { "docid": "6013182", "title": "", "text": "Finally, the Court examined the injunction’s restraint of “picketing, demonstrating, or using sound amplification equipment within 300 feet of the residences of clinic staff.” The injunction also enjoined demonstrators from impeding access to streets which provided the sole access to streets on which those residences were located. Id. As to noise, the Court upheld the restriction on the same grounds it used to uphold noise outside the clinics. Id. As to the picketing, the Court found that the 300-foot zone was broader than necessary to protect particular residences given the evidence in that ease. Id. at 775-77, 114 S.Ct. at 2530. It found that a smaller zone could have accomplished this result. Id. at 775-77,114 S.Ct. at 2530. b. Schenck v. Pro-Choice Network In Schenck v. Pro-Choice Network, — U.S. -, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997), the Supreme Court addressed another challenge to an injunction in the abortion protest context, and reaffirmed the principles articulated in Madsen. The abortion protesters enjoined in Schenck had engaged in a variety of activities, including blocking the plaintiff abortion clinics’ driveways and entrances, disrupting clinic operations by entering the clinics, flinging themselves onto patients’ cars, crowding cars approaching the clinics, and distributing literature to and conversing with patients approaching the clinics. Id. at-, 117 S.Ct. at 860. The protesters also had used “more aggressive techniques,” such as yelling in the faces of women approaching the clinics; jostling, grabbing, pushing, and shoving women attempting to enter the clinics; and elbowing, grabbing, and spitting on volunteers who escorted pa tients to the clinics. Id. Protesters called “sidewalk counselors” walked alongside women attempting to enter the clinics and tried to persuade the women not to have abortions; sometimes these efforts degenerated into physical altercations. Id. The district court in Schenck issued an injunction which barred the protesters from demonstrating within a fixed 15-foot buffer zone around the clinic doorways, driveways, and parking lot entrances. The injunction also established 15-foot floating buffer zones around people and vehicles entering or leaving the clinic facilities. A “cease and desist” provision in the injunction allowed two sidewalk counselors to" }, { "docid": "1772036", "title": "", "text": "had welded themselves inside cars blocking access to an abortion clinic. United States v. Lindgren, No. A3-95-4 (D.N.D. complaint filed Jan. 18, 1995). That complaint targeted neither speech nor picketing. Moreover, the remedy the Government sought — a 200-foot buffer zone around the clinic and its employees— was intended to protect protesters’ First Amendment rights while also protecting the constitutional right to an abortion. Id. at 9-10. In each of the other three cases appellants rely on, the Government prosecuted not speech, but only violent or disruptive conduct: blocking access to a clime by welding protesters inside cars parked against clinic doors, Milwaukee Women’s Med. Serv’s., Inc. v. Brock, Civ. No. 94-C-0793 (E.D. Wis. complaint in intervention filed Dec. 20, 1994) at 3; and threatening, stalking, and assaulting clinic employees, United States v. Smith, No. 74:95CV-0025 (N.D. Ohio complaint filed Jan. 4, 1995) at 3-6, United States v. Dinwiddie, No. 95-1101-CV-W-8 (W.D. Mo. complaint filed Jan. 1995) at 2. In each case, the requested relief included buffer zones tailored to specific violations of the Access Act. See Smith, Compl. at 7-8 (requesting injunc-tive relief including 50-foot buffer zone around clinic and 25-foot buffer zone around doctor’s home); Brock, Compl. at 5 (seeking-injunctive relief including 50-foot buffer zone around clinic); Dinwiddie (W.D. Mo. temporary restraining order filed Jan. 6, 1995) at 7 (temporarily restraining defendant from locating within 500 feet of any reproductive health facility within court’s- jurisdiction). See generally Madsen, 512 U.S. at - - -, 114 S.Ct. at 2527-28 (upholding reasonably circumscribed buffer -zones as remedy for violations of the law by anti-abortion protesters). The cases relied on by appellants thus fall far short of showing that the Government uses the Access Act to “proscribe” protected speech. Those cases involve a wholly separate question: whether courts sitting in equity may enjoin activities that do not violate the Act as a remedy for activities that quite clearly do violate the Act. That question has no bearing here. Appellants argue that the District Court also ignored evidence that the Government was not applying the Act evenhandedly. Although they claim that the" }, { "docid": "15335005", "title": "", "text": "omitted). Before McCullen, the Supreme Court had decided three cases involving similar buffer zones at medical facilities. In the first two of those cases—Madsen v. Women’s Health Center, Inc., 512 U.S. 753, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994) and Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357, 117 S.Ct. 855, 137 L.Ed.2d 1 (1997) — the Court confronted the issue in the context of injunctions prohibiting specific individuals from interfering with public access to clinics. It viewed both restrictions, a thirty-six foot buffer zone in Madsen and a fifteen foot zone in Schenck, as sufficiently narrowly tailored and thus upheld them under intermediate scrutiny. In Madsen, the Court noted that the thirty-six foot buffer zone at issue in that case was created by way of injunctive relief only after a first injunction (which enjoined the specified protesters from blocking or interfering with public access to the clinic) proved insufficient to serve the government’s stated interests. Madsen, 512 U.S. at 769-70, 114 S.Ct. 2516. The Court also emphasized that “the state court found that [those protesters] repeatedly had interfered -with the free access of patients and staff’ to the clinic in question before issuing the injunction, leaving the state court with “few other options to protect access” to the clinic. Id. at 769, 114 S.Ct. 2516. Similarly, in Schenck, the Court upheld the fixed buffer zone because “the record show[ed] that protesters purposefully or effectively blocked or hindered people from entering and exiting the clinic doorways, from driving up to and away from clinic entrances, and from driving in and out of clinic parking lots.” 519 U.S. at 380, 117 S.Ct. 855. The Schenck Court also struck down a floating bubble zone as insufficiently tailored to the government’s interests. Id. at 377-80, 117 S.Ct. 855. The restriction was overbroad chiefly because of the type of speech it restricted (leafleting and other comments on matters of public concern) and the nature of the location (a public sidewalk). Id. at 377, 117 S.Ct. 855. The Court emphasized the potential for uncertainty that a floating bubble zone creates — “[w]ith" }, { "docid": "2238856", "title": "", "text": "Inc. v. Reno, 47 F.3d 642, 646 (4th Cir.1995), certiorari denied, 516 U.S. 809, 116 S.Ct. 55, 133 L.Ed.2d 19 (1995). The wave of violence, intimidation, and interference included “Murder, arson, kidnappings, bombings and bomb threats, assaults, death threats, trespasses, vandalism, gas attacks, military-style assaults, and blockades of entrances to clinics.” United States v. Soderna, 82 F.3d 1370, 1372 (7th Cir.1996), certiorari denied, - U.S. -, 117 S.Ct. 507, 136 L.Ed.2d 398 (1996). Because the local law enforcement agencies were unable or sometimes unwilling to take action to protect the patients and staffs of these facilities, Congress concluded that the Act was necessary to protect and promote public safety and health. American Life, 47 F.3d at 646. The Act “forbids the use of force or threats of force or physical obstruction deliberately to injure, intimidate, or interfere with people seeking to obtain or to provide any reproductive medical or other health services, not just abortion, and also people seeking to exercise their religious rights in a church or other house of worship.” Soderna, 82 F.3d at 1372-1373. Specifically, the Act provides criminal and civil penalties against anyone who: (1) by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services[.] 18 U.S.C. § 248(a). The Act defines “interfere” as “to restrict a person’s freedom of movement,” § 248(e)(2). “Intimidate” is defined as placing “a person in reasonable apprehension of bodily harm to him- or herself or to another.” § 248(e)(3). The statutory definition of “physical obstruction” is “rendering impassable ingress to or egress from a facility that provides reproductive health services or to or from a place of religious worship, or rendering passage to or from such a facility or place of religious worship unreasonably difficult or hazardous.” § 248(e)(4). The Act also provides that “[njothing in this section shall be construed — (1) to" } ]

[ { "docid": "529633", "title": "", "text": "Court has already determined that BAC and Carlisle are not “suppliers,” which is one of the requirements under the OCS-PA. The Ogles have failed to provide any additional factual allegations that would support a claim under the OCSPA. Therefore, BAC and Carlisle are entitled to judgment on the pleadings on this claim as well. i. Wrongful Foreclosure The Ogles assert a claim for wrongful foreclosure under Ohio law. BAC and Carlisle argue that wrongful foreclosure is not a recognized cause of action in Ohio. “Wrongful foreclosure” in Ohio “describes not a discrete claim with specific elements but a collection of challenges to a foreclosure action.” Id.; see Wells Fargo Bank, N.A. v. Favino, No. 1:10-cv-571, 2011 WL 1256771, at *12 (N.D.Ohio Mar. 31, 2011) (finding that “wrongful foreclosure” is not a “cause of action, only an affirmative defense”). Accordingly, BAC and Carlisle are entitled to judgment on the pleadings on the Ogles’ wrongful foreclosure claim. j. Civil Conspiracy The Ogles allege that BAC and Carlisle and others conspired against them. BAC and Carlisle argue that the Ogles fail to establish the elements of a civil conspiracy claim. Under Ohio law, the elements of civil conspiracy are: (1) a malicious combination of two or more persons; (2) causing injury to person or property; (3) the existence of an unlawful act which is independent from the conspiracy itself; and (4) damages. Gosden v. Louis, 116 Ohio App.3d 195, 687 N.E.2d 481, 496 (1996). Although the Ogles present a conclusory allegation regarding the existence of a civil conspiracy, they fail to allege sufficient facts in support of the elements of this claim. Accordingly, BAC and Car-lisle are entitled to judgment on the pleadings on the Ogles’ civil conspiracy claim. k. Negligent Servicing The Ogles allege that BAC and Carlisle negligently serviced their loan by failing to identify the noteholder. BAC and Carlisle argue that this claim fails because the Ogles cannot maintain a tort action based on a contract. The Court agrees. “A claim that a bank is negligently administering a loan is an action in contract and not a tort action, since" } ]

[ { "docid": "19941900", "title": "", "text": "Duration Fund, Ltd., 476 F.Supp.2d 809, 820 (S.D.Ohio 2007), citing Moffitt v. Auberle, 167 Ohio App.3d 120, 854 N.E.2d 222 (2006). Thus “[a] misrepresentation made with an honest belief in its truth may still be negligent because of a lack of reasonable care in ascertaining the facts, or in the manner or expression, or absence of skill and competence required by a particular business or profession.” Id., citing Martin v. Ohio State Univ. Foundation, 139 Ohio App.3d 89, 103-04, 742 N.E.2d 1198 (2000). A claim for negligent misrepresentation under Ohio law cannot be based on omissions or on a failure to do something; it must be based on affirmative statements or acts. Isaac v. Alabanza Corp., No. 05 JE 55, 2007 WL 901596, *7 (Ohio App. 7 Dist.2007), citing Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 149, 684 N.E.2d 1261. Nor can such a claim be based on representations of future action or conduct unless plaintiff can show that at the time the representation was made, the party had no intention of carrying it out. Id. The statute of limitations for a negligent misrepresentation claim in Ohio is four years. Ohio Revised Code (“R.C.”) 2305.09 (general 4-year limitations period for tort actions not expressly covered by other provisions in the Code). Because negligent misrepresentation is not listed as one of the causes of action to which the discovery rule applies under R.C. 2305.09, such a claim accrues when the misrepresentation is made. Orshoski v. Krieger, No. OT-01-009, 2001 WL 1388037, *6 (Ohio App. 6 Dist., Nov. 9, 2001) (“R.C. 2305.09 has not extended the ‘discovery rule’ to toll the statute of limitations in negligent misrepresentation cases.”); Chandler v. Schriml, No. 99AP-1006, 2000 WL 675123 (Ohio App. 10 Dist. May 25, 2000) (“R.C. 2305.09 has not extended the ‘discovery rule’ to toll the statute of limitations in negligent misrepresentation cases.”); Investors REIT One v. Jacobs, 46 Ohio St.3d 176, 179, 546 N.E.2d 206 (1989). Aiding and Abetting Common Law Fraud In In re Enron See., Derivative, and “Erisa” Litig., 465 F.Supp.2d 687, 726-28 (S.D.Tex.2006) (#161 in" }, { "docid": "17636529", "title": "", "text": "contained in the Amended Complaint, which was not verified by the Plaintiff. Plaintiff also relies on his own affidavit dated July 24, 2007, stating simply that he reviewed the Amended Complaint, and he “believe[s] the contents contained in the Amended Complaint to be true.” (Doc. 71-3). Assuming, arguendo, that Plaintiffs affidavit constitutes retroactive verification of the Amended Complaint, and that a verified complaint may be considered as evidence in establishing a genuine issue of material fact, no factual issues preclude summary judgment in favor of Defendants. B. Plaintiffs Tort Claims Plaintiff asserts identical claims of negligent misrepresentation, professional negligence, negligence, negligent infliction of emotional distress, and breach of fiduciary duty against both Defendants Time and State Farm. In addition to contending that no facts support Plaintiffs tort claims, both Defendants have raised the economic-loss doctrine as a defense to Plaintiffs negligence causes of action. Because the allegations giving rise to these claims are identical, the Court will address the tort claims against both Defendants together. 1. Negligence and Professional Negligence Plaintiffs Amended Complaint seeks the recovery of economic loss in the form of medical expenses incurred when Plaintiff had surgery in 2004. Time did not pay the claim due to its rescission of Plaintiffs Policy. There is no allegation or evidence, however, that either Time or State Farm undertook an duty to Plaintiff to cover his medical expenses independent of a valid contract for health insurance. Ohio law precludes the recovery of economic damages “where recovery of such damages is not based upon a tort duty independent of contractually created duties.” Pavlovich v. National City Bank, 435 F.3d 560, 569 (6th Cir.2006). “The economic loss doctrine holds that absent tangible physical harm to persons or tangible things there is generally no duty to exercise reasonable care to avoid economic losses to others. Queen City Terminals, Inc. v. Gen. Am. Transp. Corp., 73 Ohio St.3d 609, 653 N.E.2d 661 (1995). These economic losses may be recovered in contract only. Id.” J.F. Meskill Enters., LLC v. Acuity, 2006 U.S. Dist. LEXIS 41491, 2006 WL 903207 (N.D.Ohio Apr. 7, 2006). The economic-loss rule" }, { "docid": "5113075", "title": "", "text": "Inc. v. Cola, 745 F.Supp.2d 588, 619 (E.D.Pa.2010) (noting that under Pennsylvania’s “gist of the action” doctrine, a plaintiff is generally precluded from recovering in tort for claims arising from breach of contract). Defendant maintains that because Plaintiffs have failed to allege the existence of any legal duty arising outside of the obligations contained in the contract, and because the conduct underlying the tort claims falls within the scope of the alleged contractual relationship, Plaintiffs’ tort claims fail as a matter of law. Defendant also argues that, under Ohio law, “[t]here is no separate tort cause of action for breach of good faith that is separate from a breach of contract claim. Rather, good faith is part of a contract claim and does not stand alone.” Northeast Ohio College of Massotherapy v. Burek, 144 Ohio App.3d 196, 204, 759 N.E.2d 869, 875 (Ohio Ct.App.2001) (internal citation and quotation omitted). See also JHE, Inc. v. Southeastern Penn. Transp. Auth., No. 1790, 2002 WL 1018941, at *5-7 (Pa.Com.Pl. May 17, 2002) (noting that Pennsylvania does not recognize a tort claim for bad faith, and that separate causes of action cannot be maintained for breach of contract and breach of the covenant of good faith, “even in the alternative.”). Plaintiffs concede that if there are valid and enforceable contracts, the quasi-contractual claims and tort claims are not viable. Plaintiffs argue, however, that although they believe that the contracts at issue are valid and enforceable, it is not clear at this point whether Defendant concedes this point. In the event that the Court eventually finds that one or more of the contracts is invalid or unenforceable, Plaintiffs have pleaded quasi-contractual claims and tort claims in the alternative. Plaintiffs correctly note that Federal Rule of Civil Procedure 8(d)(3) specifically provides that a party may state as many claims as it has, regardless of consistency. See Concheck v. Barcroft, No. 2:10-cv-656, 2011 WL 3359612, at *8 (S.D.Ohio 2011) (refusing to dismiss quasi-contract claims because if the contract is ultimately deemed unenforceable, plaintiff may be able to succeed on alternate theories of recovery); Jent v. BAC Home" }, { "docid": "7007051", "title": "", "text": "Ohio law the existence of a contract action generally excludes the opportunity to present the same case as a tort claim.” Id. This rule does not apply in this case, however, because the contract and tort claims asserted by Plaintiffs each have separate independent bases in the Ohio Revised Code. See Prater v. Three-C Body Shop, Inc., No. 01AP-950, 2002 WL 479827, at *4 (Ohio App. 10th Dist. Mar. 29, 2002) (citing Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 151, 684 N.E.2d 1261 (1996)) (“a tort claim based upon the same actions as those upon which a breach of contract claim is based exists only if the breaching party also breaches a duty owed separately from that duty created by the contract, that is, a duty owed even if no contract existed.”) By enacting the UCC, the Ohio General Assembly provided certain rights and remedies to parties to a contract involving the sale of goods. Likewise, the General Assembly also provided different rights and remedies to those injured by defective products when it enacted the OPLA. Thus, Plaintiffs’ contractual and tort claims are based upon separately identifiable statutory duties imposed by law, making the rule set forth in Wolfe inapplicable. Raymond fails to cite any cases establishing that a plaintiff asserting tort claims sounding in product liability is barred from pursuing claims under the UCC, and cases to the contrary, which allow such theories to proceed simultaneously, are legion. See, e.g., Ressallat v. Burglar & Fire Alarms, Inc., 79 Ohio App.3d 43, 606 N.E.2d 1001 (3d Dist.1992); City of Cleveland v. N. Pac. Group., Inc., Nos. 78706, 78871, 79595, 2002 WL 1349205 (Ohio App. 8th Dist. June 20, 2002); see also Sun Refining & Marketing Co. v. Crosby Valve & Gage Co., 68 Ohio St.3d 397, 627 N.E.2d 552 (1994). Thus, Wolfe is no obstacle to Plaintiffs’ pursuit of contract-based warranty claims under the UCC. Raymond next argues that Plaintiffs’ breach of warranty claims under the UCC fail as a matter of law because the decedent was not in privity with Raymond. As Plaintiffs point" }, { "docid": "15840865", "title": "", "text": "common law duty to perform contract duties with skill and in a workmanlike manner, the breach of which creates a cause of action in negligence. This argument was rejected by the court in Fuchs [v. Parsons Const. Co.], 166 Neb. [188] at 197, 199, 201, 88 N.W,2d [648] at 653-654, 655-656 [1958]. While the alleged breach of contract in this case may be considered a breach of this common law duty, that breach of duty is not, on these facts, independent of the duties imposed by the contract. The factual issues pertain, then, to NPPD’s cause of action for breach of contract. Similarly, we conclude that plaintiffs’ claims, based upon negligence, must be dismissed as the parties to the contract were sophisticated and the allegation of negligence stems from the breach of that contract. “When the promissee’s injury consists merely of the loss of his bargain, no tort claim arises because the duty of the promisor to fulfill the term of the bargain arises only from the contract.” Battista v. Lebanon Trotting Association, 538 F.2d 111, 117 (6th Cir.1976). (3) Implied Warranty to Perform in a Safe and Workmanlike Manner Like the plaintiff in Nebraska Power, the plaintiffs herein also allege, in Count VIII of the amended complaint, that defendant owed a legal duty to plaintiffs, independent of the contract, to perform its contractual duties in a safe and workmanlike manner. While Ohio law is clear that a builder has a duty to perform with workmanlike skill and use proper materials, Mitchem v. Johnson, 7 Ohio St.2d 66, 218 N.E.2d 594 (1966), that duty may be found to have arisen out of the contract. Tibbs v. National Homes Construction Corp., 52 Ohio App.2d 281, 369 N.E.2d 1218 (1977); Lloyd v. William Fannin Builders, Inc., 40 Ohio App.2d 507, 320 N.E.2d 738 (1973). In First Bank of Akron v. Cann, 503 F.Supp. 419 (N.D.Ohio 1980), affd on other grounds, 669 F.2d 415 (6th Cir.1982), the Court held that plaintiffs’ allegation that the defendant “wrongfully failed to discover certain variances” was, in essence, a claim that defendant had failed to perform its" }, { "docid": "11220227", "title": "", "text": "pecuniary loss to the plaintiff (5) while the plaintiff justifiably relied upon the information (6) and while the defendant failed to exercise reasonable care or competence in obtaining or communicating the information. Delman v. City of Cleveland Heights, 41 Ohio St.3d 1, 4, 534 N.E.2d 835 (1989). The parties focus on the second and sixth elements— false information and reasonable care. False Information The false information element requires a representation as to “past or existing facts, not promises or representations relating to future actions or conduct.” Telxon Corp. v. Smart Media of Del., Inc., No. 22098, 2005 WL 2292800, at *13 (Ohio App. Sept. 21, 2005). A tort claim for negligent misrepresentation is thus distinguished from a breach of contract claim, which is necessarily based on a promise of future conduct. Id. (citing Cincinnati ex rel. Ritter v. Cincinnati Reds, LLC, 150 Ohio App,3d 728, 746, 782 N.E.2d 1225 (2002)); see also R.J. Wildner Contracting Co., Inc. v. Ohio Turnpike Comm’n, 913 F.Supp. 1031, 1041 (N.D.Ohio 1996) (“A claim for negligent misrepresentation is based on false information, not a broken promise.”). The requirement of false information as to past or existing facts is born out by the specific circumstances of cases in which Ohio courts have recognized viable negligent misrepresentation claims. See, e.g., Haddon View Inv. Co. v. Coopers & Lybrand, 70 Ohio St.2d 154, 156-57, 436 N.E.2d 212 (1982) (accounting firm could be liable to the members of a limited partnership for misrepresenting the partnership’s current financial status); Moffitt v. Auberle, 167 Ohio App.3d 120, 123-24, 854 N.E.2d 222 (2006) (doctor’s office could be liable to a patient for misrepresenting that medical documentation had been sent to the patient’s employer); Martin v. Ohio State Univ. Found., 139 Ohio App.3d 89, 104, 742 N.E.2d 1198 (2000) (financial planner could be liable to retirees for misrepresenting timing of payments from a trust); hippy v. Soc’y Nat’l Bank, 100 Ohio App.3d 37, 45-46, 651 N.E.2d 1364 (1995) (bank could be liable to a real estate investor for misrepresenting the qualifications and experience of an environmental assessment firm in connection with a real" }, { "docid": "11220226", "title": "", "text": "Props., 123 Ohio App.3d 575, 583, 704 N.E.2d 1249 (1997). Here, there is no evidence supporting the first element of a clear and unambiguous promise. As explained above, even if GEM’s evidence is accepted as true, it is not clear who was responsible for paying GEM under the GOE Contract. Therefore, SunTrust’s alleged promise that GEM “would be paid in full” is not clear and unambiguous in its terms. See, e.g., Scotts v. Cent. Garden & Pet Co., 403 F.3d 781, 789 (6th Cir.2005) (“[A] promise to abide by vague provisions ... could neither be clear and unambiguous in its terms nor induce reasonable and foreseeable reliance^]”) (internal quotations omitted). Negligent Misrepresentation GEM also brings a claim against SunTrust for the tort of negligent misrepresentation. To be liable for negligent misrepresentation under Ohio law, a defendant must (1) in the course of his business, profession, or employment, or in any other transaction in which he has a pecuniary interest, (2) supply false information (3) for the guidance of others in their business transactions (4) causing pecuniary loss to the plaintiff (5) while the plaintiff justifiably relied upon the information (6) and while the defendant failed to exercise reasonable care or competence in obtaining or communicating the information. Delman v. City of Cleveland Heights, 41 Ohio St.3d 1, 4, 534 N.E.2d 835 (1989). The parties focus on the second and sixth elements— false information and reasonable care. False Information The false information element requires a representation as to “past or existing facts, not promises or representations relating to future actions or conduct.” Telxon Corp. v. Smart Media of Del., Inc., No. 22098, 2005 WL 2292800, at *13 (Ohio App. Sept. 21, 2005). A tort claim for negligent misrepresentation is thus distinguished from a breach of contract claim, which is necessarily based on a promise of future conduct. Id. (citing Cincinnati ex rel. Ritter v. Cincinnati Reds, LLC, 150 Ohio App,3d 728, 746, 782 N.E.2d 1225 (2002)); see also R.J. Wildner Contracting Co., Inc. v. Ohio Turnpike Comm’n, 913 F.Supp. 1031, 1041 (N.D.Ohio 1996) (“A claim for negligent misrepresentation is based on" }, { "docid": "529635", "title": "", "text": "any duties the bank has arise out of contract, from the framework of the loan agreement.” Favino, 2011 WL 1256771, at *14. Further, the Sixth Circuit has held that “under Ohio law, the existence of a contract action generally excludes the opportunity to present the same case as a tort claim.” Wolfe v. Continental Cas. Co., 647 F.2d 705, 710 (6th Cir.1981). 1.Breach of Contract and the Covenant of Good Faith and Fair Dealing The Ogles allege a claim for breach of contract and breach of the covenant of good faith and fair dealing. BAC and Carlisle argue that the Ogles failed to allege sufficient factual allegations in support of these claims. In Ohio, a claim for breach of contract requires proof of four elements: existence of a contractual relationship between the parties, performance under the contract by the party seeking recovery for the breach, breach of the contract by the party against which relief is sought, and damages to the party seeking relief resulting from the breach. Pavlovich v. National City Bank, 435 F.3d 560, 565 (6th Cir.2006) (citing Wauseon Plaza Ltd. P’ship v. Wauseon Hardware Co., 156 Ohio App.3d 575, 807 N.E.2d 953, 957 (2004)). And the duty of good faith and fair dealing is integral to any contract. Krukrubo v. Fifth Third Bank, No. 07AP-270, 2007 WL 4532689, at *5 (Ohio Ct.App. Dec. 27, 2007). Thus, a breach of covenant of good faith and fair dealing “does not stand alone as a separate cause of action from a breach of contract claim.” Westwinds Dev. Corp. v. Outcalt, No. 2008-G-2863, 2009 WL 1741978, at *11 (Ohio Ct.App. June 19, 2009); see Interstate Gas Supply, Inc. v. Calex Corp., No. 04AP-980, 2006 WL 328679, at *20 (Ohio Ct.App. Feb. 14, 2006) (“an allegation of a breach of the implied covenant of good faith cannot stand alone as a separate cause of action from a breach of contract claim”). Here, there is no dispute that the Ogles have not performed as required under the Note and Mortgage. The Ogles admittedly stopped making mortgage payments in September 2009, when they say" }, { "docid": "529637", "title": "", "text": "they learned that BAC was servicing the loan. The Ogles have therefore failed to plead performance and accordingly, have failed to adequately plead a breach of contract claim. See Wells Fargo Bank, N.A., 2011 WL 1256771, at *9 (finding that failure to make mortgage loan payments prevents party from proving his own performance in breach of contract action against the lender seeking to foreclose on the loan). The breach of covenant of good faith and fair dealing fails for the same reasons. Accordingly, BAC and Carlisle are entitled to judgment on the pleadings of these claims. m. Slander of Title The Ogles allege that the mortgage assignments and the allonge constitute a slander of their title. In Ohio, “[s]lander of title is a tort action which may be brought against any one who falsely and maliciously defames the property, either real or personal, of another, and thereby causes him some special pecuniary damage or loss.” (Internal quotation marks omitted) Green v. Lemarr, 139 Ohio App.3d 414, 744 N.E.2d 212, 224 (2000). Thus, to recover for slander of title in Ohio, a plaintiff must prove special damages. See id. at 226. Under the Federal Rules of Civil Procedure, special damages must be alleged with specificity. Fed.R.Civ.P. 9(g). Though the Ogles allege that the mortgage assignments and allonge are not valid, they do not allege facts showing that BAC and Carlisle acted with malice, or that their actions proximately caused actual pecuniary loss. Thus, the Ogles fail to state a claim of slander of title and BAC and Carlisle are entitled to judgment on this claim. n. Declaratory Relief The Ogles seek an order declaring that BAC has no interest in the mortgage or real property that is the subject of the foreclosure action. To obtain declaratory relief relating to BAC’s attempt to collect on a debt, the Ogles must show that “there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510," }, { "docid": "18184477", "title": "", "text": "dealing (Count Eight), and intentional or negligent misrepresentation (Count Nine). All of the remaining state law claims seek damages representing lost investment dollars and/or unearned commissions relative to the viatical investments. Ohio courts have been fairly consistent in their approach in finding that the shorter statute of limitations under § 1704.43 is applicable to actions arising from sales of or contracts relating to securities. For example, in Lynch v. Dean Witter Reynolds, Inc., 134 Ohio App.3d 668, 731 N.E.2d 1205 (1999), investors brought suit styled, in part, as a breach of contract related to the sale of limited partnership interests. The trial court held the shorter statute of limitations under § 1704.43 applied as well as that for a breach of a written contract and determined the following: Specific statutory provisions prevail over conflicting general provisions unless the legislature’s intent that the general provision prevail is clear. R.C. 1.51; State v. Volpe (1988), 38 Ohio St.3d 191, 527 N.E.2d 818, paragraph one of the syllabus; Haack v. Bank One, Dayton, N.A., Montgomery App. No. 16131, 1997 WL 205998 (Ohio App.1997), unreported, 1997 WL 205998. Accordingly if the investors claims can be characterized both as violations of the specific provisions of R.C. Chapter 1707 and as breaches of their contracts with Dean Witter, the limitations period set forth in R.C. 1707.13 prevails over the general limitations period for breach of contract claims. Id. at 671, 731 N.E.2d at 1207. (Emphasis added.) See also, Helman v. ERL Prolong, Inc., 139 Ohio App.3d 231, 244, 743 N.E.2d 484, 494 (2000) (prospective purchases brought claims in the nature of fraud, breach of fiduciary duty, breach of contract regarding purchase of stock certificates never received which were deemed barred under § 1707.43 as their claims were based upon a “fraudulent sales of securities”); Hater v. Gradison Division of McDonald and Co. Sec., Inc., 101 Ohio App.3d 99, 112-113, 655 N.E.2d 189, 197-198 (1995) (claims of fraud were “inextricably interwoven” and related to sales of securities thereby subject to statute of limitations under § 1707.43). See also, Goldberg v. Cohen, 2002 WL 1371031, Blue Sky L." }, { "docid": "11254452", "title": "", "text": "the terms of their mortgage. See, e.g., Vida v. OneWest Bank, 2010 WL 5148473, at *7 (D.Or. Dec. 13, 2010); Brockbank v. JPMorgan Chase Bank, 2012 WL 1142933, at *4 (D.Utah Apr. 4, 2012); Salgado v. America’s Servicing Co., 2011 WL 3903072, at *2 (D.Ariz. Sept. 6, 2011); Rackley v. JPMorgan Chase Bank, 2011 WL 2971357, at *4 (W.D.Tex. July 21, 2011). Similarly, the “submission of ... documentation” is not consideration. See, e.g., Mehta v. Wells Fargo, 737 F.Supp.2d 1185, 1196-98 (S.D.Cal.2010); Rackley v. JPMorgan Chase, 2011 WL 2971357, at *4 (W.D.Tex. July 21, 2011) (citing cases). If document submission were sufficient, “each would— be barista not hired after filling out an application at Starbucks and handing it to a Starbucks employee” could claim consideration. Banaga v. Taylor Bean Mortg., 2011 WL 5056985, at *4 (N.D.Cal. Oct. 24, 2011). Finally, even if the TPP Agreement were a valid contract, it prohibits only a “foreclosure sale” while the TPP Agreement is effective, which never took place here. (Doc. 9-2 at 81). Consequently, the breach of contract claim is appropriately dismissed. B. Implied Covenant of Good Faith and Fair Dealing (Count II) Defendants allege that Plaintiff breached an implied covenant of good faith and fair dealing in the TPP Agreement. (Doc. 9-2 at ¶ 85). An implied covenant, however, “does not stand alone” as “a separate claim.” Pappas v. Ippolito, 177 Ohio App.3d 625, 642, 895 N.E.2d 610 (2008). Furthermore, a duty of good faith and fair dealing “cannot exist until the underlying contract is formed.” Walker v. Dominion Homes, Inc., 164 Ohio App.3d 385, 397, 842 N.E.2d 570 (2005). As the unsigned TPP Agreement is not an enforceable contract, the breach of implied covenant of good faith and fair dealing claim is appropriately dismissed. C. Promissory Estoppel (Count III) The elements of a claim of promissory estoppel are: “(1) a clear and unambiguous promise; (2) reliance on that promise; (3) reliance that was reasonable and foreseeable; and (4) damages caused by that reliance.” JP Morgan Chase Bank, N.A. v. Horvath, 862 F.Supp.2d 744, 749 (S.D.Ohio 2012) (citing Current Source, Inc. v." }, { "docid": "7007052", "title": "", "text": "products when it enacted the OPLA. Thus, Plaintiffs’ contractual and tort claims are based upon separately identifiable statutory duties imposed by law, making the rule set forth in Wolfe inapplicable. Raymond fails to cite any cases establishing that a plaintiff asserting tort claims sounding in product liability is barred from pursuing claims under the UCC, and cases to the contrary, which allow such theories to proceed simultaneously, are legion. See, e.g., Ressallat v. Burglar & Fire Alarms, Inc., 79 Ohio App.3d 43, 606 N.E.2d 1001 (3d Dist.1992); City of Cleveland v. N. Pac. Group., Inc., Nos. 78706, 78871, 79595, 2002 WL 1349205 (Ohio App. 8th Dist. June 20, 2002); see also Sun Refining & Marketing Co. v. Crosby Valve & Gage Co., 68 Ohio St.3d 397, 627 N.E.2d 552 (1994). Thus, Wolfe is no obstacle to Plaintiffs’ pursuit of contract-based warranty claims under the UCC. Raymond next argues that Plaintiffs’ breach of warranty claims under the UCC fail as a matter of law because the decedent was not in privity with Raymond. As Plaintiffs point out in their response, Raymond’s privity argument fails to account for Ohio case law permitting a plaintiff to establish privity even in the absence of a direct contractual relationship. Specifically, according to several decisions from intermediate appellate courts in Ohio, “when the manufacturer is so involved in the sales transaction that the distributor merely becomes the agent of the manufacturer, then the manufacturer and the ultimate consumer are in privity of contract.” Bobb Forest Prods., Inc. v. Morbark Indus. Inc., 151 Ohio App.3d 63, 83-84, 783 N.E.2d 560 (7th Dist.2002) (citing Mettler-Toledo, Inc. v. Wysong & Miles Co., No. 98AP-1462, 1999 WL 1009721, at *3 (Ohio App. 10th Dist. Nov. 9, 1999); Myers v. Moore Distrib., Inc., No. CA92-07-125, 1993 WL 19093, at *2 (Ohio App. 12th Dist. Feb. 1, 1993)). In addition, “[a] consumer may also have privity of contract with the manufacturer if that consumer is an intended third-party beneficiary to a contract.” Bobb Forest Prods., 151 Ohio App.3d at 84, 783 N.E.2d 560 (citing Am. Rock Mechanics, Inc. v. Thermex Energy Corp.," }, { "docid": "7007050", "title": "", "text": "warranty,” clearly covers implied warranties, as well as express. Ohio Rev.Code § 2307.71(A)(13)(c). The definition of “representation” to which Plaintiffs refer is irrelevant to the issue. b. Warranty Claims under Ohio’s UCC Although not explicitly denominated as such in the complaint, Plaintiffs’ warranty claims are separately cognizable under contract law and Ohio Revised Code § 1302.26 et seq. Raymond provides several reasons why it believes the contract-based breach of warranty claims alleged by Plaintiffs fail as a matter of law. Specifically, Raymond asserts that (1) Ohio law precludes plaintiffs from presenting the same cause of action as both a breach of contract and a tort; (2) the decedent’s lack of privity with Raymond compels dismissal of Plaintiffs’ breach of warranty claims; and/or (3) the claims are time-barred. Citing Wolfe v. Cont’l Cas. Co., 647 F.2d 705, 710 (6th Cir.1980), Raymond contends that Plaintiffs are barred from asserting any contract-based claims in this action because they are also seeking to recover in tort based upon the same allegations. Wolfe stands for the general proposition that “under Ohio law the existence of a contract action generally excludes the opportunity to present the same case as a tort claim.” Id. This rule does not apply in this case, however, because the contract and tort claims asserted by Plaintiffs each have separate independent bases in the Ohio Revised Code. See Prater v. Three-C Body Shop, Inc., No. 01AP-950, 2002 WL 479827, at *4 (Ohio App. 10th Dist. Mar. 29, 2002) (citing Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 151, 684 N.E.2d 1261 (1996)) (“a tort claim based upon the same actions as those upon which a breach of contract claim is based exists only if the breaching party also breaches a duty owed separately from that duty created by the contract, that is, a duty owed even if no contract existed.”) By enacting the UCC, the Ohio General Assembly provided certain rights and remedies to parties to a contract involving the sale of goods. Likewise, the General Assembly also provided different rights and remedies to those injured by defective" }, { "docid": "11254453", "title": "", "text": "claim is appropriately dismissed. B. Implied Covenant of Good Faith and Fair Dealing (Count II) Defendants allege that Plaintiff breached an implied covenant of good faith and fair dealing in the TPP Agreement. (Doc. 9-2 at ¶ 85). An implied covenant, however, “does not stand alone” as “a separate claim.” Pappas v. Ippolito, 177 Ohio App.3d 625, 642, 895 N.E.2d 610 (2008). Furthermore, a duty of good faith and fair dealing “cannot exist until the underlying contract is formed.” Walker v. Dominion Homes, Inc., 164 Ohio App.3d 385, 397, 842 N.E.2d 570 (2005). As the unsigned TPP Agreement is not an enforceable contract, the breach of implied covenant of good faith and fair dealing claim is appropriately dismissed. C. Promissory Estoppel (Count III) The elements of a claim of promissory estoppel are: “(1) a clear and unambiguous promise; (2) reliance on that promise; (3) reliance that was reasonable and foreseeable; and (4) damages caused by that reliance.” JP Morgan Chase Bank, N.A. v. Horvath, 862 F.Supp.2d 744, 749 (S.D.Ohio 2012) (citing Current Source, Inc. v. Elyria City Sch. Dist., 157 Ohio App.3d 765, 773, 813 N.E.2d 730 (Ohio Ct.App.2004) (citing Healey v. Republic Powdered Metals, Inc., 85 Ohio App.3d 281, 284, 619 N.E.2d 1035 (Ohio Ct.App.1992))). Defendants allege that Plaintiff breached a promise in the TPP Agreement to permanently modify their loan if they made three reduced payments and submitted some documents. (Doc. 9-2 at ¶91). However, this claim fails for several reasons. First, the TPP Agreement does not make a “clear and unambiguous promise” that Plaintiff would permanently modify Defendants’ loan. Kena Props., LLC v. Merchants Bank & Trust, 218 Fed.Appx. 402, 406 (6th Cir.2007); see also Nachar v. PNC Bank, 901 F.Supp.2d 1012, 1020-21 (N.D.Ohio 2012). The TPP Agreement explicitly contemplated that Defendants could temporarily make reduced payments while they applied for a permanent loan modification by submitting documents that Plaintiff needed to determine if Defendants qualified under HAMP, and, moreover, that Plaintiff had discretion to decide whether to modify the loan. Defendants have not alleged that Plaintiff found them qualified under HAMP, nor that they received a" }, { "docid": "529636", "title": "", "text": "560, 565 (6th Cir.2006) (citing Wauseon Plaza Ltd. P’ship v. Wauseon Hardware Co., 156 Ohio App.3d 575, 807 N.E.2d 953, 957 (2004)). And the duty of good faith and fair dealing is integral to any contract. Krukrubo v. Fifth Third Bank, No. 07AP-270, 2007 WL 4532689, at *5 (Ohio Ct.App. Dec. 27, 2007). Thus, a breach of covenant of good faith and fair dealing “does not stand alone as a separate cause of action from a breach of contract claim.” Westwinds Dev. Corp. v. Outcalt, No. 2008-G-2863, 2009 WL 1741978, at *11 (Ohio Ct.App. June 19, 2009); see Interstate Gas Supply, Inc. v. Calex Corp., No. 04AP-980, 2006 WL 328679, at *20 (Ohio Ct.App. Feb. 14, 2006) (“an allegation of a breach of the implied covenant of good faith cannot stand alone as a separate cause of action from a breach of contract claim”). Here, there is no dispute that the Ogles have not performed as required under the Note and Mortgage. The Ogles admittedly stopped making mortgage payments in September 2009, when they say they learned that BAC was servicing the loan. The Ogles have therefore failed to plead performance and accordingly, have failed to adequately plead a breach of contract claim. See Wells Fargo Bank, N.A., 2011 WL 1256771, at *9 (finding that failure to make mortgage loan payments prevents party from proving his own performance in breach of contract action against the lender seeking to foreclose on the loan). The breach of covenant of good faith and fair dealing fails for the same reasons. Accordingly, BAC and Carlisle are entitled to judgment on the pleadings of these claims. m. Slander of Title The Ogles allege that the mortgage assignments and the allonge constitute a slander of their title. In Ohio, “[s]lander of title is a tort action which may be brought against any one who falsely and maliciously defames the property, either real or personal, of another, and thereby causes him some special pecuniary damage or loss.” (Internal quotation marks omitted) Green v. Lemarr, 139 Ohio App.3d 414, 744 N.E.2d 212, 224 (2000). Thus, to recover for" }, { "docid": "17636536", "title": "", "text": "Ohio Supreme Court held that a plaintiff may not recover for negligent infliction of emotional distress “where the defendant’s negligence produced no actual threat of physical harm to the plaintiff or any other person.” 73 Ohio St.3d 80, 1995 Ohio 65, 652 N.E.2d 664. See also Strasel v. Seven Hills OBGYN Assocs., 170 Ohio App.3d 98, 104, 2007 Ohio 171, 866 N.E.2d 48 (Ohio Ct.App.); King v. Bogner, 88 Ohio App.3d 564, 569, 624 N.E.2d 364, 367 (1993) (Ohio case law recognizes negligent infliction of emotional distress only where the plaintiff is cognizant of a real physical danger to herself or another.); Massie v. Dayton Power & Light Co., Fayette App. Nos. CA91-10-021 and CA91-11-025, 1992 WL 236801 (Sept. 21, 1992) (same); Dawoudi v. Ullman Oil, Inc. Geauga App. No. 93-G-1782, 1994 WL 102403 (Mar. 25, 1994) (same); and Huston v. Morris, Franklin App. No. 90AP-1009, 1991 WL 35001 (Mar. 12, 1991) (“Under Ohio law, claims for negligent infliction of serious emotional distress are cognizable only where the plaintiff or someone closely related to the plaintiff faced actual physical peril.”). Plaintiff has provided no evidence and asserted no facts suggesting that Defendants or their alleged agents caused physical harm or the threat of physical harm. Rather, the Amended Complaint states only that Cunningham and/or Bunts’ actions inflicted “serious emotional distress” and proximately caused Plaintiff “substantial damages.” In Heiner, the Ohio Supreme Court emphasized that even “real and debilitating” emotional injuries do not give rise to a claim of negligent infliction of emotional distress; rather, the tort is narrowly defined to apply to cases involving physical peril. Heiner, 73 Ohio St.3d at 88, 652 N.E.2d 664. I. Breach of Fiduciary Duty “While the law has recognized a public interest in fostering certain professional relationships, such as the doctor-patient and attorney-client relationships, it has not recognized the insurance agent-client relationship to be of similar importance.” Nielsen Enterprises, Inc. v. In surance Unlimited Agency, Inc., Franklin App. No. 85AP-781, 1986 WL 5411, 1986 Ohio App. LEXIS 6754 (Ohio Ct.App., May 8, 1986). Thus, the relationship between an insurance agent and an insured, without" }, { "docid": "529632", "title": "", "text": "Kondrat v. Morris, 118 Ohio App.3d 198, 692 N.E.2d 246, 253 (1997). In view of these requirements, a plaintiff that fails to plead the elements necessary to establish a RICO violation also fails to state a claim under the OCPA. Universal Coach, Inc. v. New York City Transit Auth., Inc., 90 Ohio App.3d 284, 629 N.E.2d 28, 32 (1993); see State ex rel. Fatur v. Eastlake, No. 2009-L-037, 2010 WL 1254369, *5 (Ohio Ct.App. Mar. 31, 2010) (citing Universal Coach); but see State v. Hicks, No. CA2002-08-198, 2003 WL 23095414, at *8 (Ohio Ct.App. Dec. 31, 2003) (rejecting the continuity requirement for establishing an OCPA pattern of corrupt activity). Because the Ogles have failed to plead the necessary elements of a RICO claim, they also fail to state a claim under the OCPA. Therefore, BAC and Carlisle are entitled to judgment on the pleadings on the Ogles’ OCPA claim. h. Unfair or Deceptive Acts or Practices The Ogles allege that BAC and Carlisle violated Ohio Revised Code §§ 1345.02(A) and (F)(1), another OCSPA claim. The Court has already determined that BAC and Carlisle are not “suppliers,” which is one of the requirements under the OCS-PA. The Ogles have failed to provide any additional factual allegations that would support a claim under the OCSPA. Therefore, BAC and Carlisle are entitled to judgment on the pleadings on this claim as well. i. Wrongful Foreclosure The Ogles assert a claim for wrongful foreclosure under Ohio law. BAC and Carlisle argue that wrongful foreclosure is not a recognized cause of action in Ohio. “Wrongful foreclosure” in Ohio “describes not a discrete claim with specific elements but a collection of challenges to a foreclosure action.” Id.; see Wells Fargo Bank, N.A. v. Favino, No. 1:10-cv-571, 2011 WL 1256771, at *12 (N.D.Ohio Mar. 31, 2011) (finding that “wrongful foreclosure” is not a “cause of action, only an affirmative defense”). Accordingly, BAC and Carlisle are entitled to judgment on the pleadings on the Ogles’ wrongful foreclosure claim. j. Civil Conspiracy The Ogles allege that BAC and Carlisle and others conspired against them. BAC and Carlisle argue that" }, { "docid": "19941899", "title": "", "text": "citing inter alia 3 Restatement of Law (Second), Torts § 552(1) at 126-27 (1965). See also In re National Century Financial Enterprises, Inc., 504 F.Supp.2d 287, 295 (S.D.Ohio May 6, 2007) (“Under Ohio law, a person is liable for negligent misrepresentation when: (1) he supplies false information (2) for the guidance of others in their business transactions, (3) causing pecuniary loss to plaintiff, (4) who justifiably relies upon the information, (5) if he fails to exercise reasonable care or competence in obtaining or communicating the information.”); Hamilton v. Sysco Food Services of Cleveland, Inc., 170 Ohio App.3d 203, 208, 866 N.E.2d 559, 562-63 (Ohio App. 8 Dist. 2006) (“[T]he elements for negligent misrepresentation require (1) a defendant who is in the business of supplying information, and (2) a plaintiff who sought guidance with respect to his business transactions from the defendant.”). Thus an actor that fails to exercise reasonable care or competence in supplying the correct information may be liable for negligent misrepresentation under Ohio tort law. Ohio Bureau of Workers’ Compensation v. MDL Active Duration Fund, Ltd., 476 F.Supp.2d 809, 820 (S.D.Ohio 2007), citing Moffitt v. Auberle, 167 Ohio App.3d 120, 854 N.E.2d 222 (2006). Thus “[a] misrepresentation made with an honest belief in its truth may still be negligent because of a lack of reasonable care in ascertaining the facts, or in the manner or expression, or absence of skill and competence required by a particular business or profession.” Id., citing Martin v. Ohio State Univ. Foundation, 139 Ohio App.3d 89, 103-04, 742 N.E.2d 1198 (2000). A claim for negligent misrepresentation under Ohio law cannot be based on omissions or on a failure to do something; it must be based on affirmative statements or acts. Isaac v. Alabanza Corp., No. 05 JE 55, 2007 WL 901596, *7 (Ohio App. 7 Dist.2007), citing Textron Fin. Corp. v. Nationwide Mut. Ins. Co., 115 Ohio App.3d 137, 149, 684 N.E.2d 1261. Nor can such a claim be based on representations of future action or conduct unless plaintiff can show that at the time the representation was made, the party had no" }, { "docid": "17636530", "title": "", "text": "recovery of economic loss in the form of medical expenses incurred when Plaintiff had surgery in 2004. Time did not pay the claim due to its rescission of Plaintiffs Policy. There is no allegation or evidence, however, that either Time or State Farm undertook an duty to Plaintiff to cover his medical expenses independent of a valid contract for health insurance. Ohio law precludes the recovery of economic damages “where recovery of such damages is not based upon a tort duty independent of contractually created duties.” Pavlovich v. National City Bank, 435 F.3d 560, 569 (6th Cir.2006). “The economic loss doctrine holds that absent tangible physical harm to persons or tangible things there is generally no duty to exercise reasonable care to avoid economic losses to others. Queen City Terminals, Inc. v. Gen. Am. Transp. Corp., 73 Ohio St.3d 609, 653 N.E.2d 661 (1995). These economic losses may be recovered in contract only. Id.” J.F. Meskill Enters., LLC v. Acuity, 2006 U.S. Dist. LEXIS 41491, 2006 WL 903207 (N.D.Ohio Apr. 7, 2006). The economic-loss rule applies in a tort action when, as here, economic loss is unaccompanied by personal injury or property damage. Pavlovich, 435 F.3d at 569. The issue in Meskill was whether the economic loss doctrine barred the plaintiffs negligence, negligent misrepresentation, and professional negligence claims against its insurance broker, arising out of the insurer’s refusal to pay for a loss covered by the policy. The Court dismissed plaintiffs negligence claim, and declined to consider the claim as one for “professional negligence”, applying the economic loss doctrine. Applying these holdings to the case at bar, it is clear that Plaintiff cannot maintain its negligence claim against [the broker]. Numerous courts have held that negligence claims for economic loss do not survive the economic loss doctrine. See Chemtrol [Adhesives, Inc. v. Am. Mfrs. Mwt. Ins. Co., 42 Ohio St.3d 40, 537 N.E.2d 624, 629-30 (Ohio 1989) ] (explaining that “a plaintiff who has suffered only economic loss due to another’s negligence has not been injured in a manner which is legally cognizable or compensable”); All Erection & Crane Rental" }, { "docid": "18184479", "title": "", "text": "Rep. P(CCH)74,278 (Ohio App. 7 Dist.2002) (unpublished) (fraud action premised upon sale of securities was subject to two year statute of limitations under § 1707.43 versus four year statute under § 2305.09). In this instance, the claims sounding in common law fraud, fraud in the inducement, breach of contract, and unjust enrichment clearly arise from the sale of the viatical investments, thus falling under the more specific limitations period in § 1707.43. Lynch, supra. The same is true for the claims alleging breach of fiduciary duty, intentional or negligent misrepresentation and negligent training and supervision. See Ware v. Kowars, 2001 WL 58731 (Ohio App. 10 Dist.2001) (unpublished) (finding § 1707.43 applied to claims of breach of fiduciary duty, conversion, breach of contract and fraud as they were contrary to the prohibition against fraud in the sale of securities). See also, Adams v. Dean Witter Reynolds, Inc., 1999 WL 401394 (Ohio App. 8 Dist.1999) (claim alleging that account was negligently and/or fraudulently managed was controlled by statute of limitations contained in § 1707.43). But see Ferritto v. Alejandro, 139 Ohio App.3d 363, 743 N.E.2d 978 (2000) (declining to apply § 1707.43 as the money given to insurer was not invested in funds as represented, therefore not based upon violations of securities’ purchase nor did the investors seek return of monies invested). The present action is distinguishable from that in Ferritto as the prayer seeks return of the investments as well the unearned commissions which are considered “other aetion[s] for any recovery based upon or arising out of a sale or contract for sale made in violation of Chapter 1707.” O.R.C. § 1707.43. Despite a determination that the applicable statute of limitations under § 1707.43 controls, the Defendant must establish that the relevant time frame has passed, thus rendering the claims untimely. The Receiver reiterates the same arguments presented in support of his position relative to the timeliness of the federal securities claims. In short, despite his appointment in mid-2000, because the Court did not authorize the Receivership to pursue actions in contract or tort until October 2002, Plaintiff argues this latter" } ]

[ { "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": "10604709", "title": "", "text": "the sum of $39,200, but A & B Produce, Inc. did not pay Exel for its services. On June 10, 2003, Pacific; a produce wholesaler, filed a complaint, later amended, in the district court against A & B Produce, Inc. and Anthony Badolato, its president (collectively “A & B Produce”), alleging that A & B Produce failed to pay for produce that it purchased from Pacific. Pacific claimed that it was the beneficiary of a statutory trust under PACA, 7 U.S.C. § 499e(c), from which it was entitled to recover payment for the produce. On October 1, 2003, Pacific and A & B Produce entered into a stipulation and order, pursuant to which A & B Produce agreed to liquidate its assets subject to the PACA trust for the benefit of the potential PACA trust beneficiaries. On November 14, 2003, Exel filed a complaint in intervention in Pacific’s action seeking to recov er the cost of the transportation services that it provided to A & B Produce prior to the distribution of PACA trust funds to the PACA trust beneficiaries. Exel, however, did not claim to be a PACA trust beneficiary; rather, Exel sought payment for its transportation services as an administrative expense chargeable to the res of the PACA trust prior to any distribution of the PACA trust funds to the beneficiaries. Pacific opposed Exel’s claim. The district court denied Exel’s claim for payment for its transportation services as administrative expenses of the PACA trust on the ground that allowing Exel payment “ahead of the PACA trust beneficiaries ... would defeat the purpose of the PACA [trust] to place unpaid sellers in a priority position and expand the term ‘administrative expense’ too far.” App. at 7. Exel then appealed. III. JURISDICTION AND STANDARD OF REVIEW The district court had subject matter jurisdiction over this case pursuant to 7 U.S.C. § 499e(c)(5). See Tanimura & Antle, Inc. v. Packed Fresh Produce, Inc., 222 F.3d 132, 138 (3d Cir.2000) (“[District courts clearly have jurisdiction over actions by private parties seeking to enforce payment from the [PACA] trust.”). We have jurisdiction pursuant" }, { "docid": "23471196", "title": "", "text": "Timothy Butler, Gelmin had also said that he did not feel that GBJ was “capable of seeing this through to the end, that we do not have the resources or the ability to see it through.” Predictably, Sequa opposed the motion to intervene. In a December 22, 1999 order Judge Batts denied Butler’s motion to intervene under Rule 24. She ruled that Butler did not meet three of the four requirements for Rule 24(a) intervention. From the denial of its motion, Butler appeals. We affirm. DISCUSSION We review the denial of a motion to intervene for abuse of discretion. United States v. City of New York, 198 F.3d 360, 364 (2d Cir.1999). This standard reflects the view that district courts, due to their proximity to the dispute, usually have a better sense of the case’s factual nuances upon which a motion to intervene often turns. United States v. Pitney Bowes, Inc., 25 F.3d 66, 69 (2d Cir.1994). Rule 24(a) of the Federal Rules of Civil Procedure governs intervention as a matter of right by a non-party into an ongoing litigation. It provides that [u]pon timely application anyone shall be permitted to intervene in an action ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. Fed.R.Civ.P. 24(a). As the language of the rule suggests, a putative intervenor as of right must meet four criteria: the applicant must (1) file a timely motion; (2) claim an interest relating to the property or transaction that is the subject of the action; (3) be so situated that without intervention the disposition of the action may impair that interest; and (4) show that the interest is not already adequately represented by existing parties. Pitney Bowes, 25 F.3d at 70. A would-be intervenor’s failure to meet all of these requirements justifies the denial of its motion. Id." }, { "docid": "8497917", "title": "", "text": "of new parties will cause undue delay and prejudice.” Shortly thereafter, the district court preliminarily enjoined implementation of DAPA. The Jane Does timely appealed the denial of their motion to intervene. Although the Jane Does argued in the district court that they were entitled both to intervention by right and to permissive intervention, on appeal they argue only that they are entitled to intervention by right. II. “A ruling denying intervention of right is reviewed de novo.” Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir.1996) (en bane). “Although the mov-ant bears the burden of establishing its right to intervene, Rule 24 is to be liberally construed.” Brumfield v. Dodd, 749 F.3d 339, 341 (5th Cir.2014) (citing 6 James W. Moore, et al., Moore’s Federal Practice § 24.03[l][a] (3d ed.2008) [Moore’s ]). “Federal courts should allow intervention where no one would be hurt and the greater justice could be attained.” Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir.1994) (internal quotation marks omitted). For the purposes of deciding the motion to intervene, we accept the Jane Does’ factual allegations as true. Mendenhall v. M/V Toyota Maru No. 11, 551 F.2d 55, 57 (5th Cir.1977). III. Intervention by right is governed by Federal Rule of Civil Procedure 24(a). To intervene by right, the prospective in-tervenor either must be “given an unconditional right to intervene by a federal statute,” Fed.R.Civ.P. 24(a)(1), or must meet each of the four requirements of Rule 24(a)(2): (1) the application for intervention must be timely; (2) the applicant must have an interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest; (4) the applicant’s interest must be inadequately represented by the existing parties to the suit. New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.1984) [NOPSI] (en banc) (internal quotation marks omitted). The Jane Does claim that they satisfy each of the four requirements of" }, { "docid": "1887959", "title": "", "text": "its motion to intervene as of right under Fed.R.Civ.P. 24(a)(2), and that the district court abused its discretion in denying appellant’s motion under the standard for permissive intervention under Fed.R.Civ.P. 24(b)(2). The district court made no findings of fact or conclusions of law to support its denial of appellant’s motion to intervene. A district court’s denial of intervention as of right is reviewed de novo. Taylor Communications Group, Inc. v. Southwestern Bell Tel. Co., 172 F.3d 385, 387 (5th Cir.1999). Intervention as of right is governed by Rule 24(a) which provides that “[u]pon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” Fed.R.Civ.P. 24(a)(2). To intervene as of right under Rule 24(a)(2), appellant must meet a four prong test. Each of the following four requirements must be satisfied: (1) the application for intervention must be timely; (2) the applicant must have an interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair his ability to protect that interest; (4) the applicant’s interest must be inadequately represented by the existing parties to the suit. Taylor, 172 F.3d at 387. Under the first requirement, the district court should have considered four factors to determine whether appellant’s application for intervention was timely. The four factors are: (1) The length of time during which the would-be intervenor actually knew or reasonably should have known of its interest in the case before it petitioned for leave to intervene; (2) the extent of the prejudice that the existing parties to the litigation may suffer as a result of the would-be intervenor’s failure to apply for intervention as soon as it knew or reasonably should" }, { "docid": "10839518", "title": "", "text": "practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. Fed.R.Civ.P. 24(a). Under Rule 24(a)(2), a party is entitled to intervention as a matter of right if the party’s interest in the subject matter of the litigation is direct, substantial and legally protectable. Meek, 985 F.2d at 1477. Rule 24(b) provides for permissive intervention as follows: Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a feder al or state governmental officer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Fed.R.Civ.P. 24(b). Permissive intervention under Fed. R. Civ. Proc. 24(b) is appropriate where a party’s claim or defense and the main action have a question of law or fact in common and the intervention will not unduly prejudice or delay the adjudication of the rights of the original parties. Walker v. Jim Dandy Co., 747 F.2d 1360, 1365 (11th Cir.1984). A. Florida’s Motion to Intervene Intervention as of Right Before a party can intervene as a matter of right, it must timely move to intervene. The proposed intervenor must show that it has an interest in the subject matter of the suit, that its ability to protect that interest may be impaired by the disposition of the suit, and that existing parties in the suit cannot adequately protect that interest. Since no party disputes that Florida timely filed its motion to intervene, we consider each of the" }, { "docid": "1814528", "title": "", "text": "the adjudication of the original parties’ rights.” The trial court’s discretion in considering motions for permissive intervention is considered “very broad” and the Second Circuit employs a clear abuse of discretion standard of review. Brennan, 579 F.2d at 192. The statutory language of Rule 24(b) requires an intervenor to demonstrate first, that the motion is timely, and second, that its claim or defense shares a common question of fact or law with the main action. Most courts add a third requirement of showing an independent ground for subject matter jurisdiction. Nat’l Children’s Ctr., 146 F.3d at 1046. Courts have interpreted these requirements with even greater flexibility when the third-party seeks to intervene only for the purpose of gaining access to discovery materials. In re Linerboard Antitrust Li-tig., 333 F.Supp.2d 333, 339 (E.D.Pa.2004). Even if a party meets the threshold criteria for permissive intervention, the court must still engage in a balancing test of the parties’ interests and exercise its discretion in determining whether or not to grant the intervention. Vitamins, 2001 WL 34088808, *2, 2001 U.S. Dist. Lexis 25068, at *27. 1. Timeliness The first requirement under Rule 24(b) is a timely motion to intervene. The Second Circuit takes the following circumstances into consideration when determining whether an application to intervene is timely: “(1) how long the applicant had notice of the interest before it made the motion to intervene; (2) prejudice to existing parties resulting from any delay; (3) prejudice to the applicant if the motion is denied; and (4) any unusual circumstances militating for or against a finding of timeliness.” In re: Bank of New York Deriv. Litig., 320 F.3d 291, 300 (2d Cir.2003) (internal quotation omitted). In cases where parties have sought intervention for the limited purpose of modifying a protective order, the requirement of timeliness is quite broad. Linerboard, 333 F.Supp.2d at 339. Where a party seeks intervention to modify a protective order and not to participate on the merits, courts have permitted intervention even where the parties to the underlying litigation have settled their dispute. Nat’l Children’s Ctr., 146 F.3d at 1047 (noting a “growing" }, { "docid": "22437763", "title": "", "text": "in a curt, one-sentence order without specifying whether or not its denial was premised upon a finding of untimeliness, we have no way of determining whether it abused its discretion with regard to that element; consequently, we must review the timeliness issue in this case de novo. See Sierra Club v. Espy, 18 F.3d 1202, 1205 n. 2 (5th Cir.1994) (“Although the timeliness of intervention is generally reviewed for abuse of discretion, where the district court makes no finding regarding timeliness, we review this factor de novo.” (citations omitted)). 111 In the absence of a statute conferring an unconditional right to intervene, Federal Rule of Civil Procedure 24(a)(2) governs a party’s application for intervention as of right in the federal courts. Rule 24(a)(2) provides: Upon timely application anyone shall be permitted to intervene in an action ... when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. Fed.R.Civ.P. 24(a)(2). Courts in this circuit have recognized that the requirements of Rule 24(a)(2) may be broken down into four elements, each of which must be demonstrated in order to provide a non-party with a right to intervene: (1) the application must be timely; (2) the applicant must have a “significantly protecta-ble” interest relating to the transaction that is the subject of the litigation; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect its interest; and (4) the applicant’s interest must be inadequately represented by the parties before the court. See Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 836 (9th Cir.1996). A Timeliness is “the threshold requirement” for intervention as of right. United States v. Oregon, 913 F.2d 576, 588 (9th Cir.1990). In other words, if we find “that the motion to intervene was not timely, [we] need" }, { "docid": "10544180", "title": "", "text": "determination. Finally, in a separate order, Judge Ashland ordered the parties to appear before the court on November 7, 1988 to settle the contents of an order contemplated in the Memorandum of Decision. Del Mar Packing Co. and Smithpro Brokerage (“Claimants”) first appeared at the November 7, 1988 hearing. Claimants asserted their right to a share of the trust assets notwithstanding the fact that they had not intervened and had no prior participation in the proceedings. An order filed on December 28, 1988 granted relief from stay and identified the participants of the trust entitled to share in the trust assets. Claimants were identified along with Beneficiaries in the order. In addition, the court again denied an award of interest and attorneys’ fees and costs. Beneficiaries timely appealed both the inclusion of Claimants as sharing in the trust assets and the denial of interest and attorneys’ fees and costs. STANDARD OF REVIEW Whether Del Mar Packing Co. and Smithpro Brokerage, Claimants, are entitled to share in the Debtor’s trust assets is a question of law. Questions of law are reviewed de novo. In re Pizza of Hawaii, 761 F.2d 1374 (9th Cir.1985). Generally, review of a bankruptcy court’s award of attorney’s fees or similar compensation is for an abuse of discretion. In re Nucorp Energy, Inc., 764 F.2d 655, 657 (9th Cir.1985); In re Knudsen Corp., 84 B.R. 668, 670 (9th Cir. BAP 1988). DISCUSSION Beneficiaries argue that Claimants must be excluded from sharing in the PACA trust distributions because Claimants did not participate in the bankruptcy proceedings. Specifically, Beneficiaries assert that Claimants should have no share because they did not establish the validity of their claims, they did not timely move to intervene under Fed.R.Civ.P. 24, and their failure to participate constitutes waiver of their claims. According to the Perishable Agricultural Commodities Act, any perishable agricultural commodities received by a commission merchant, dealer, or broker and any receivables or proceeds from the sale of the commodities, shall be held in trust for the benefit of all unpaid suppliers or sellers of such commodities until they have received full payment." }, { "docid": "20032600", "title": "", "text": "Inc. (“EMI”) resorts in the Dominican Republic which are the properties at issue” in this suit. [DE 781, p. 1]. Plaintiffs and the Elliott Defendants oppose Ms. Pullman’s motions, asserting that her intervention would be improper given the totality of the circumstances. See [DE 801]; [DE 823]. Intervention of right is governed by Federal Rule of Civil Procedure 24(a). Pursuant to Rule 24(a), a party who does not possess “an unconditional right to intervene by a federal statute” must be permitted to intervene in an action if they can establish that: (1) the application to intervene is timely; (2) the party has an interest relating to the property or transaction which is the subject of the action; (3) the party is so situated that disposition of the action, as a practical matter, may impede or impair the party’s ability to protect that interest; and (4) the party’s interest is represented inadequately by the existing parties to the suit. See Fed.R.Civ.P. 24(a); Fox v. Tyson Foods, Inc., 519 F.3d 1298, 1302-03 (11th Cir.2008). Permissive intervention, on the other hand, is governed by Federal Rule of Civil Procedure 24(b). Pursuant to Rule 24(b), “[a] party seeking to intervene ... must show that: (l)[the] application to intervene is timely; and (2) [the party’s] claim or defense and the main action have a question of law or fact in common.” Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir.1989) (citation omitted). Furthermore, a “district court has the discretion to deny intervention even if both of those requirements are met, and its decision is reviewed for an abuse of discretion.” Id. As is clear from the foregoing, any request to intervene must be “timely,” regardless of whether intervention is sought as a matter of right pursuant to Rule 24(a) or permissively pursuant to Rule 24(b). In determining whether Pullman’s intervention request was timely, I “must consider the length of time during which [Pullman] knew or reasonably should have known of [her] interest in the case before moving to intervene, the extent of prejudice to the existing parties as a result of [her] failure to move" }, { "docid": "4506528", "title": "", "text": "(2d Dep’t 1978), rev’d on other grounds, 49 N.Y.2d 93, 400 N.E.2d 303, 424 N.Y.S.2d 361 (1979) (“A litigant has no inherent right to have his [or her] attorney’s fees paid by his [or her] opponent ... except if specifically provided by contract or statute.”) (citations omitted). Count 10 explicitly falls within the contractual exception to the general rule barring attorney’s fees as a separate cause of action. The Trust alleges that the relevant P & I policies provide for attorneys fees as part of the “costs, charges and expenses reasonably incurred and paid by the assured in connection with any liability insured under this policy,” subject to applicable deductibles. See Complaint, ¶ 98 (quoting P & I policy). Count 10 therefore states a claim for attorney’s fees recognized under New York law. Whether another construction of the above contractual terms may be appropriate under the circumstances will be resolved at trial. VII. Intervenors’ Complaint The Clubs also move to dismiss the Claimants’ Complaint on the grounds that the Claimants, as intervenors, lack standing under New York’s direct action statute. We disagree. Fed.R.Civ.P. 24 provides for both mandatory and permissive intervention. Rule 24 provides in pertinent part: (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. (b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action ... (2) when an applicant’s claim or defense and the main action have a question of law or fact in common.... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. By order dated April 6, 1993, Bankruptcy Judge Blackshear granted the Claimants’ motion to intervene without indicating whether" }, { "docid": "18639424", "title": "", "text": "sponsorship of prayer or other religious activities. VI. We next address whether the district court correctly denied intervention under Fed.R.Civ.P. 24 to Rutherford as the representative of the proposed intervenor class of DISD schoolchildren. Rule 24 provides for both permissive intervention, see rule 24(b), and intervention as a matter of right, see rule 24(a). Of the latter category, it is only the non-statutory variety of intervention of right, set out in rule 24(a)(2), that presents itself here. We review the district court’s rule 24(a)(2) determinations under a de novo standard. Ceres Gulf v. Cooper, 957 F.2d 1199, 1202 (5th Cir.1992). Intervention under Rule 24(a)(2) is to be accorded only upon proof of four factors: (1) the application must be timely; (2) the applicant must have an interest in the property or transaction that is the subject of the action; (3) disposition of the matter must impair or impede the applicant’s ability to protect that interest; and (4) the applicant’s interest must not be adequately represented by the parties to the suit. Association of Professional Flight Attendants v. Gibbs, 804 F.2d 318, 320 (5th Cir.1986). Rutherford first claims that its motion was timely. Doe disagrees, and the district court alternatively denied intervention on this ground, citing the fact that Rutherford moved to intervene just two days before the hearing on the preliminary injunction, although it had had almost four months to seek leave to intervene. Alone among the four Gibbs factors, we review the district court’s determination of the timeliness of the petition for abuse of discretion. Kneeland v. National Collegiate Athletic Ass’n, 806 F.2d 1285, 1289 (5th Cir.), cert. denied, 484 U.S. 817, 108 S.Ct. 72, 98 L.Ed.2d 35 (1987). In Stallworth v. Monsanto Co., 558 F.2d 257, 264-66 (5th Cir.1977), we distilled from prior precedent four factors to be considered before passing on the timeliness of a petition for leave to intervene: (1) The length of time during which the would-be intervenor actually knew or reasonably should have known of his interest in the ease before he petitioned for leave to intervene [ ...;] (2) The extent of the" }, { "docid": "10839517", "title": "", "text": "appeal, the Corps denied Georgia’s water supply request. It concluded that it lacked the “legal authority to grant Georgia’s request without additional legislative authority, because the request would involve substantial effects on project purposes and major operational changes.” STANDARD OF REVIEW We review the denial of a motion to intervene as of right de novo. Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1512 (11th Cir.1996). Subsidiary factual findings are subject to review for clear error. Meek v. Metro. Dade County, 985 F.2d 1471, 1477 (11th Cir.1993). Orders denying permissive intervention are subject to review for abuse of discretion. Id. DISCUSSION Rule 24(a) provides for intervention as a matter of right as follows: Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. Fed.R.Civ.P. 24(a). Under Rule 24(a)(2), a party is entitled to intervention as a matter of right if the party’s interest in the subject matter of the litigation is direct, substantial and legally protectable. Meek, 985 F.2d at 1477. Rule 24(b) provides for permissive intervention as follows: Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a feder al or state governmental officer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene" }, { "docid": "3473434", "title": "", "text": "of the fifty-four Offer-ees would compete with any of the appellants for a transfer to a particular building and obtain the transfer as a result of the retroactive seniority. For such a result to occur, the court reasoned, several events would need to converge: (i) one of the Offerees and one of the appellants would have to request the same transfer; (ii) each would have to have the same job title (i.e., Custodian or Custodian Engineer); (iii) the performance ratings of the Offeree and the appellant would have to be quite close; and (iv) the Offeree and the appellant would have to hold the first and second spots, respectively, on the transfer list for the particular building. The district court held, therefore, that appellants’ interest in their seniority rankings was not “direct, substantial, and legally protecta-ble,” id. at 156 (internal quotation marks omitted), denied appellants’ motion to intervene, and approved the Agreement. This appeal followed. DISCUSSION “We review the denial of ... the motion for intervention as of right under Fed.R.Civ.P. 24(a) ... for abuse of discretion.” New York News, Inc. v. Kheel, 972 F.2d 482, 485 (2d Cir.1992); accord United States v. Glens Falls Newspapers, Inc., 160 F.3d 853, 854 (2d Cir.1998) (“We have jurisdiction of an appeal from an order which denies intervention. Our review invokes the abuse of discretion standard.” (internal citations omitted)). “Errors of law or fact may constitute such abuse.” SG Cowen Sec. Corp. v. Messih, 224 F.3d 79, 81 (2d Cir.2000). To intervene as of right, a movant must: “(1) timely file an application, (2) show an interest in the action, (3) demonstrate that the interest may be impaired by the disposition of the action, and (4) show that the interest is not protected adequately by the parties to the action.” Kheel, 972 F.2d at 485. The timeliness of appellants’ motion to intervene is not questioned. Turning to the nature of appellants’ interest in the underlying action, we have stated that, for an interest to be cognizable under Rule 24(a)(2), it must be “direct, substantial, and legally protectable.” Washington Elec. Coop., Inc. v. Massachusetts" }, { "docid": "15726793", "title": "", "text": "to absurd or futile results, we must enforce what Congress has commanded whether or not we agree with its policy choices,” Bell v. Bell (In re Bell), 225 F.3d 203, 219 (2d Cir.2000) (internal quotation marks and citation omitted). The Joint Liquidators’ argument that TLHC lacks standing to intervene, raised for the first time on appeal, is without merit. III. CONCLUSION For the foregoing reasons, we reverse the district court’s order of May 8, 2000 and the bankruptcy court’s order of September 30, 1999 and hold that TLHC possesses an unconditional right to intervene under 11 U.S.C. § 1109(b) and Fed. R. Civ. P. 24(a)(1). . Pursuant to Federal Rule of Bankruptcy Procedure (''FRBP”) 7001, intervention in adversary proceedings is governed by FRBP 7024, which adopts FRCP 24. FRCP 24 provides in relevant part: (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. (b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common. ... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. Fed.R.Civ.P. 24. . In Unsecured Creditors Comm. v. Noyes (In re STN Enters), 779 F.2d 901, 904 (2d Cir.1985), we held that 11 U.S.C. §§ 1103(c)(5) and 1109(b) implied a qualified right for creditors1 committees to initiate adversary proceedings where the trustee or debtor in possession unjustifiably failed to bring suit. ." }, { "docid": "23578412", "title": "", "text": "for reconsideration of that ruling. 139 F.R.D. at 294-95. Kheel appeals from the denial of those motions. DISCUSSION 1. Intervention Kheel contends that the district court erred in denying his motion to intervene for the purpose of seeking Rule 11 sanctions. We review the denial of both the motion for intervention as of right under Fed.R.Civ.P. 24(a) and the motion for permissive intervention under Fed.R.Civ.P. 24(b) for abuse of discretion. See Washington Elec. v. Mass. Mun. Wholesale Elec., 922 F.2d 92, 96 (2d Cir.1990); United States v. Hooker Chemicals & Plastics Corp., 749 F.2d 968, 990-91 (2d Cir.1984). Because a district court’s order denying intervention is a final order, we have appellate jurisdiction. See Hooker Chemicals & Plastics Corp., 749 F.2d at 990 n. 19; Ionian Shiyying Co. v. British Law Insurance Co., 426 F.2d 186, 189 (2d Cir.1970). a. Intervention as of Right In order to intervene as of right under Fed.R.Civ.P. 24(a)(2), an applicant must (1) timely file an application, (2) show an interest in the action, (3) demonstrate that the interest may be impaired by the disposition of the action, and (4) show that the interest is not protected adequately by the parties to the action. See United States v. State of New York, 820 F.2d 554, 556 (2d Cir.1987). “Failure to satisfy any one of these requirements is sufficient grounds to deny the application.” Id. (citations omitted). The district court held that Kheel had not satisfied the requirements of Rule 24(a)(2) because Kheel’s interest in protecting his reputation was not related to the conspiracy alleged in the proceedings and because disposition of the case would not impair Kheel’s ability to protect his interest by other means, such as a defamation suit under state law. . The district court also noted that Kheel was not seeking to join the action as a party and stated that the Federal Rules of Civil Procedure do not anticipate limited “special status” inter-venors. In his motion for reconsideration, Kheel argued that the district court in denying his motion to intervene mistakenly had applied Rule 24 in disregard of the central purpose" }, { "docid": "6085592", "title": "", "text": "far as we can determine from the record, no other defendant filed any memorandum expressly taking a position on intervention. On August 17, 1999, Southwest filed a Second Amended Complaint deleting the claims related to the Cousins MarketCen-ter project and later a Third Amended Complaint was filed. On August 25, 1999, the district court issued an order denying Applicants’ motion to intervene as of right and denying permissive intervention. Applicants filed a motion for reconsideration under Federal Rule of Civil Procedure 60(b)(2) with declarations adding documentation of Applicants’ alleged status as third-party beneficiaries and other facts pertinent to intervention. The district court denied Applicants’ motion for reconsideration. Applicants filed a timely appeal of the district court’s denial of both the motion to intervene and the motion for reconsideration. DISCUSSION Rule 24 provides for intervention as of right and permissive intervention. Applicants sought leave to intervene on both grounds. We review de novo a district court’s denial of a motion to intervene as of right, with the exception of timeliness, which we review for abuse of discretion. Donnelly, 159 F.3d at 409. Where, as here, no federal statute confers an unconditional right to intervene, Rule 24(a) provides for intervention as of right: Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties. FED. R. CIV. P. 24(a). We apply a four-part test under Rule 24(a): .(1) the application for intervention must be timely; (2) the applicant must have a “significantly protectable” interest relating to the property or transaction that is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect that interest; and (4) the applicant’s interest must not be" }, { "docid": "10604708", "title": "", "text": "plaintiffs, as if it had been the sole seller and provider and as the sole plaintiff. Exel intervened seeking to recover its unpaid transportation expenses from the PACA trust funds prior to their distribution to the trust beneficiaries. After the district court denied Exel’s claim, Exel appealed, but we will affirm the district court’s order. II. FACTS AND PROCEDURAL HISTORY The parties do not dispute the relevant facts. A & B Produce, Inc., which now is defunct, formerly was engaged in the business of buying produce from various sellers and suppliers for ultimate resale. Pursuant to its contract with A & B Produce, Inc., Exel arranged and paid for the transportation of produce from sellers and suppliers of produce to A & B Produce, Inc. In doing so, Exel paid certain carriers to transport seven shipments of produce from various sellers and suppliers to, or for the benefit of, A & B Produce, Inc. Exel submitted invoices to A & B Produce, Inc., which acknowledges that it received the shipments, for the freight charges in the sum of $39,200, but A & B Produce, Inc. did not pay Exel for its services. On June 10, 2003, Pacific; a produce wholesaler, filed a complaint, later amended, in the district court against A & B Produce, Inc. and Anthony Badolato, its president (collectively “A & B Produce”), alleging that A & B Produce failed to pay for produce that it purchased from Pacific. Pacific claimed that it was the beneficiary of a statutory trust under PACA, 7 U.S.C. § 499e(c), from which it was entitled to recover payment for the produce. On October 1, 2003, Pacific and A & B Produce entered into a stipulation and order, pursuant to which A & B Produce agreed to liquidate its assets subject to the PACA trust for the benefit of the potential PACA trust beneficiaries. On November 14, 2003, Exel filed a complaint in intervention in Pacific’s action seeking to recov er the cost of the transportation services that it provided to A & B Produce prior to the distribution of PACA trust funds" }, { "docid": "10604710", "title": "", "text": "to the PACA trust beneficiaries. Exel, however, did not claim to be a PACA trust beneficiary; rather, Exel sought payment for its transportation services as an administrative expense chargeable to the res of the PACA trust prior to any distribution of the PACA trust funds to the beneficiaries. Pacific opposed Exel’s claim. The district court denied Exel’s claim for payment for its transportation services as administrative expenses of the PACA trust on the ground that allowing Exel payment “ahead of the PACA trust beneficiaries ... would defeat the purpose of the PACA [trust] to place unpaid sellers in a priority position and expand the term ‘administrative expense’ too far.” App. at 7. Exel then appealed. III. JURISDICTION AND STANDARD OF REVIEW The district court had subject matter jurisdiction over this case pursuant to 7 U.S.C. § 499e(c)(5). See Tanimura & Antle, Inc. v. Packed Fresh Produce, Inc., 222 F.3d 132, 138 (3d Cir.2000) (“[District courts clearly have jurisdiction over actions by private parties seeking to enforce payment from the [PACA] trust.”). We have jurisdiction pursuant to 28 U.S.C. § 1291 as the district court certified the July 21, 2004 order as final under Fed. R.Civ.P. 54(b). See Gerardi v. Pelullo, 16 F.3d 1363, 1368 (3d Cir.1994). We review the district court’s interpretation of PACA on a de novo basis. Idahoan Fresh v. Advantage Produce, Inc., 157 F.3d 197, 202 (3d Cir.1998). IV. DISCUSSION A. Background We begin with an overview of PACA. In 1930, Congress enacted PACA to promote fair trading practices in the produce industry. See 7 U.S.C. §§ 499a-499s; Idahoan Fresh, 157 F.3d at 199. Specifically, “Congress intended PACA to protect small farmers and growers who were vulnerable to the practices of financially irresponsible buyers.” Id. at 199 (footnote omitted). “Under PACA, it is unlawful for buyers of produce, inter alia, to fail to make prompt payment for a shipment of produce.” Id. (citing 7 U.S.C. § 499b(4)). A buyer’s failure to tender prompt payment triggers civil liability and the possible suspension or revocation of the buyer’s PACA license that 7 U.S.C. § 499c requires. See 7 U.S.C." }, { "docid": "23249295", "title": "", "text": "Bank’s attorneys are entitled to compensation for their time spent pursuing this appeal. Upon proper application, the District Court should award a reasonable fee for the attorney’s services during this appeal. See Northcross v. Board of Education, 611 F.2d 624, 643 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980). The decision of the District Court is affirmed. . Fed.R.Civ.P. 24 provides in pertinent part: (a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. (b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant's claim or defense and the main action have a question of law or fact in common____ In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties. . 29 U.S.C. § 1002(21)(A) provides in pertinent part: [A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, ... or, (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. . 29 U.S.C. § 1104(a)(1) provides in pertinent part: [A] fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and— (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan;" }, { "docid": "10604717", "title": "", "text": "benefit of all unpaid PACA creditors). Exel argues that it “has a valid claim for recovery of its freight charges as administrative expenses of the PACA trust because ... A & B Produce incurred those freight charges in its role as the trustee of the PACA trust account.” Appellant’s br. at 21. Exel asserts that, “[without [its] services, there would be substantially less trust assets for distribution.” Id. at 20. But even if we accept the factual basis for Exel’s argument and adhere to the general view that a non-PACA creditor in some circumstances is entitled to payment of necessary and actual charges that it incurred for the benefit of the PACA trust beneficiaries, we are satisfied that the transportation costs that Exel seeks to recover do not constitute administrative expenses incurred for the benefit of the PACA trust beneficiaries. Therefore, common law trust principles do not afford Exel the right to payment for its transportation services as administrative expenses of the PACA trust. In particular, Exel did not provide the transportation services to A & B Produce to increase the value of the trust res for the benefit of the PACA trust beneficiaries. In other words, even though the transportation of the produce to A & B Produce ultimately generated a portion of the proceeds that came to constitute the res of the PACA trust, Exel’s services were not “directly responsible for the availability of the funds,” Milton Poulos, 947 F.2d at 1353, and its services certainly do not qualify as the “hard costs of collection.” Southland + Keystone, 132 B.R. at 643 (internal quotation marks omitted). Exel performed these services for A & B Produce during the ordinary course of A & B Produce’s business operations rather than to augment the corpus of the trust. Obviously, when Exel arranged for the transportation of the produce to A & B Produce, Pacific and A & B Produce had not yet entered into the October 1, 2003 stipulation and order concerning the imposition and administration of the trust. Moreover, Exel provided for the transportation of the produce without any court" } ]

[ { "docid": "21551049", "title": "", "text": "SELYA, Circuit Judge. On March 22, 1993, defendant-appellant Hector De Alba Pagan pled guilty to five counts of an indictment charging him, and twenty-three other persons, with various drug-trafficking offenses. On August 5, 1993, the district court, after first denying defendant’s pro se motion to withdraw his earlier plea, sentenced him to a lengthy prison term. This appeal followed. Defendant makes several points. Distilled, these points reduce to three broad issues. We address those issues seriatim. I. Plea Withdrawal Defendant contends that the district court erred in refusing to allow him to withdraw his guilty plea. We review a district court’s decision to grant or deny a request to withdraw a guilty plea solely for abuse of discretion. See United States v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir.1994); United States v. Doyle, 981 F.2d 591, 594 (1st Cir.1992); United States v. Pellento, 878 F.2d 1535, 1538 (1st Cir.1989). Applying that standard, we discern no error. It is settled that a motion to withdraw a guilty plea, made before sentencing, can be granted “only upon an affirmative showing of a ‘fair and just reason.’ ” Parrilla-Tirado, 22 F.3d at 371 (quoting Fed. R.Crim.P. 32(d)). The burden of persuasion rests with the defendant. See id. In determining whether this burden has been carried, an inquiring court must consider the totality of the circumstances, focusing especially on four factors, namely, (1) the plausibility of the reasons prompting the requested change of plea; (2) the timing of the defendant’s motion; (3) the existence or nonexistence of an assertion of innocence; and (4) whether the defendant’s plea realistically may be characterized as legally suspect, say, because it was involuntary or otherwise in derogation of the requirements imposed by Fed.R.Crim.P. 11. See id. at 371; Doyle, 981 F.2d at 594; Pellento, 878 F.2d at 1537. If, after due consideration, the defendant appears to have the better -of this assessment, the court must then mull an additional factor: prejudice to the government. See Parrilla-Tirado, 22 F.3d at 371; United States v. Kobrosky, 711 F.2d 449, 455 (1st Cir.1983). Here, we do not reach the question of" } ]

[ { "docid": "11283134", "title": "", "text": "show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. 366. At the allocution phase of his sentencing hearing, Cruz Castro alleged that his counsel and the prosecutor had assured him before the change of plea hearing that he “didn’t have to say anything” in order to receive a 96 month sentence. Cruz Castro alleges that his counsel’s misrepresentation of the plea agreement, along with his failure to admit this misrepresentation at the sentencing hearing, indicate that his counsel’s performance fell below “an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. He asserts further that he only pled guilty because his counsel did not inform him that the judge had to respect the written terms of the plea agreement. Although Cruz Castro petitions us to consider this ineffective assistance of counsel claim on direct appeal, we agree with the government that a “collateral proceeding would be the appropriate” setting for the presentation of this claim. “[E]ven after a trial is completed, we do not entertain ineffective assistance claims on direct appeal absent an evidentiary record that allows us to evaluate the fact-specific allegations.” United States v. Genao, 281 F.3d 305, 313 (1st Cir.2002) (citing United States v. Woods, 210 F.3d 70, 74 (1st Cir.2000)). The evidentiary record here is not complete enough to allow us to evaluate Cruz Castro’s allegations of ineffective assistance of counsel. A collateral proceeding under 28 U.S.C. § 2255, “in which the parties and the district court can address factual matters relevant to the issue,” is the proper setting for Cruz Castro’s ineffective assistance of counsel challenge to a waiyer of appellate rights. Id. (citing United States v. Jadusingh, 12 F.3d 1162, 1169-1170 (1st Cir.1994)). IV. Applying Teeter, 257 F.3d 14 (1st Cir.2001), we conclude that Cruz Castro’s waiver of his right to appeal was knowing and voluntary. The language of the waiver in the plea agreement was clear, and the district court inquired at the change of plea" }, { "docid": "19351487", "title": "", "text": "appeal, Frausto argues that he is entitled to an evidentiary hearing on three of his claims that his trial counsel was ineffective. First, Frausto argues that his trial counsel was ineffective for incorrectly advising him that Rigoberto would be unable to testify at Frausto’s trial. Frausto asserts that if he had known that Rigoberto could have testified at trial, he would not have pled guilty. Second, Frausto argues that his attorney was ineffective for telling him that a jury would believe that he owned the Ford Focus when the DEA report showed that he did not own the Ford Focus. Frausto claims that had he known about the DEA report he would not have pled guilty. Finally, Frausto argues his counsel was ineffective for not informing him that an expert using spectrographic voice analysis was available to analyze the voice in the phone calls. Frausto contends that he would not have pled guilty if his counsel had informed him about this technology. II. Discussion An evidentiary hearing on a § 2255 petition may be denied if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). We review a district court’s decision to deny an evidentiary hearing for abuse of discretion. Noe v. United States, 601 F.3d 784, 792 (8th Cir.2010). However, when doing so, we must “look behind that discretionary decision to the court’s rejection of the claim on the merits, which is a legal conclusion that we review de novo.” Id. (quoting Saunders v. United States, 236 F.3d 950, 952 (8th Cir.2001)). Thus, to determine whether Frausto is entitled to an evidentiary hearing, we must review de novo the validity of his ineffeetive-assistance-of-counsel claims. See id. To establish ineffective assistance of counsel, Frausto must demonstrate that his counsel’s performance was both deficient and prejudicial. See id. at 789; Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “In determining whether counsel’s conduct was objectively reasonable, there is a ‘strong presumption that counsel’s conduct falls within the wide range of" }, { "docid": "19691916", "title": "", "text": "(1st Cir.2000), we review for clear error any factual inferences drawn by the district court from the facts stipulated by the parties. The parties, however, agreed that the present appeal presents purely legal issues of contract interpretation and they have not argued that any factual inferences should be reviewed for clear error. We therefore abide by the parties' characterization of the applicable standard of review and apply de novo review to the district court's decision. . \"IDEA provides that 'a court or a hearing officer may require the agency to reimburse the parents for the cost of [private school] enrollment if the court or hearing officer finds that the agency had not made [Free and Appropriate Education] available to the child in a timely manner prior to that enrollment.' \" Diaz-Fonseca, 451 F.3d at 31 (citing 20 U.S.C. § 1412(a)(10)(C)(ii)). . In Nieves Márquez, the issue of whether a cause of action for damages existed under IDEA was intertwined with whether the state-defendants enjoyed Eleventh Amendment immunity from any claims for money damages. 353 F.3d at 123. Our holding that tort-like damages were not available under IDEA, allowed us to avoid the constitutional issue whether state officers enjoyed Eleventh Amendment immunity. In Diaz-Fonseca, we were called upon to decide whether plaintiffs could recover compensatory and punitive damages in an IDEA claim that plaintiffs had characterized as a section 1983 claim. We reasoned that \"if federal policy precludes money damages for IDEA claims, it would be odd for damages to be available under another vehicle.” 451 F.3d at 28 (citing Nieves-Márquez, 353 F.3d at 125). . Although United National points to at least one Maine decision that declined to find there was a duty to defend where the underlying complaint sought purely injunctive relief and the allegations in the complaint did not support an award of damages or monetary relief, York Golf & Tennis Club v. Tudor Ins. Co., 845 A.2d 1173 (Me.2004), we are here dealing with a case in which the insured is liable for payment of monetary relief which is intertwined with an injunction. Thus, we are not" }, { "docid": "19798550", "title": "", "text": "have been different. See United States v. Dominguez Benitez, 542 U.S. 74, 82, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004); Vargas-De Jesús, 618 F.3d at 67. Though certainly not overwhelming, the evidence was sufficient to support Rodriguez’s convictions on the crack and marijuana counts, regardless of the omitted instruction. See Vargas-De Jesús, 618 F.3d at 66-67 (affirming conspiracy conviction despite lack of jury instruction under plain error standard of review, because evidence was sufficient). We thus affirm Rodriguez’s convictions on Counts One, Three, and Five, and vacate his convictions on Counts Two and Four. That leaves only the question of whether to remand Rodriguez’s case for resentencing. We choose to do so, because we find that the vacated counts may “alter the dimensions of the sentencing ‘package,’” United States v. Genao-Sánchez, 525 F.3d 67, 71 (1st Cir.2008), and that the district court should have the opportunity to consider whether a new sentence is warranted. We therefore need not reach Rodriguez’s remaining claim that the district court erred in calculating the amount of crack attributable to him as a result of his participation in the conspiracy. C. Rodríguez-Romero Rodríguez-Romero raises two challenges to the district court’s evidentiary rulings. First, he argues that the district court should have allowed him to introduce what he characterizes as impeachment evidence. Second, he claims that a portion of trial testimony was inadmissible hearsay and violated his rights under the Confrontation Clause. We review the district court’s evidentiary rulings for abuse of discretion, though “we consider de novo whether the strictures of the Confi-ontation Clause have been met.” United States v. Vega Molina, 407 F.3d 511, 522 (1st Cir.2005). Where Rodríguez-Romero failed to object at trial, we review for plain error. See, e.g., United States v. Rodriguez, 525 F.3d 85, 95 (1st Cir.2008) (failure to object on hearsay grounds results in plain error review); United States v. Luciano, 414 F.3d 174, 178 (1st Cir.2005) (same for failure to object on Confrontation Clause grounds). Finding no abuse of discretion, and no violation of the Confrontation Clause, we affirm. 1. The impeachment testimony Rodriguez-Romero’s first argument is that" }, { "docid": "20130193", "title": "", "text": "PER CURIAM: Mickey L. Long, a federal prisoner, appeals pro se from the district court’s dismissal of his motion to vacate, set aside, or correct sentence, 28 U.S.C. § 2255, as untimely. We granted him a certificate of appealability (COA) on the following issue: Whether the district court violated Clisby v. Jones, 960 F.2d 925 (11th Cir. 1992), by failing to address Long’s claim that he was entitled to statutory tolling of the limitations period, pursuant to 28 U.S.C. § 2255(f)(4) and Aron v. United States, 291 F.3d 708 (11th Cir.2002), due to trial counsel’s failure to file a requested direct appeal. On appeal, Long contends that the district court was required to hold an evidentiary hearing on his claim. The government concedes that the district court did not address this claim, but it contends that Clisby should be applied only to substantive claims of constitutional violations in the criminal proceedings, not to claims for tolling of the limitations period. Upon review, we vacate and remand for further proceedings. I. In 2005, Long pled guilty to possession with intent to distribute marijuana and hydromorphone, in violation of 21 U.S.C. § 841(a)(1), and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g), and was sentenced to 97 months’ imprisonment. He did not pursue a direct appeal of his sentence. In 2009, he filed a § 2255 motion raising several grounds for relief, including ineffective assistance of counsel for failure to file a specifically requested direct appeal from the allegedly unconstitutional sentence. In the section titled “timeliness of motion,” he claimed that his motion should be considered timely filed because of counsel’s failure to file the requested appeal. The government moved to dismiss the § 2255 motion as untimely, arguing only that it had been filed more than one year after the expiration of the time for filing a notice of direct appeal. In his response, Long argued that the government had created an impediment to timely filing when it transferred him to a state institution. The magistrate judge recommended dismissing the motion as untimely. Although" }, { "docid": "17117052", "title": "", "text": "held, however, that “a court may make implicit findings with regard to sentencing matters.” United States v. Ovalle-Márquez, 36 F.3d 212, 227 (1st Cir.1994); accord United States v. Cruz, 981 F.2d 613, 619 (1st Cir.1992) (“A court may make implicit findings on disputed factual questions by accepting the government’s recommendations at the sentencing hearing.” (internal quotations omitted)). During the sentencing hearing, the court gave each party the opportunity to discuss the basis for relying on the ATF agent’s testimony regarding what Rivera had told him when Rivera’s own words did not include the same statements. The contested statements concerned Grant’s alleged knowledge that he was giving the firearms to individuals who would use them in connection with a felony. After both parties were heard on the statements of the ATF agent and the informant, the district court ruled that Grant “had reason to believe that the weapons would be used or possessed in connection with another felony offense.” Transcript of Sentencing Hearing at 26. The court indicated in writing, as part of the judgment, that it “adopt[ed] the factual findings ... in the presentenee report.” We find this case virtually indistinguishable from United States v. Savoie, 985 F.2d 612, 621 (1st Cir.1993), which found, on similar, if not identical, facts, that the sentencing court had implicitly ruled that the contested statements were sufficiently rehable. Under Savoie, the district court’s ruling and written adoption of the PSR amounts “necessarily [to a] finding against [Grant] on all disputed matters of fact,” id., that are the subject of this appeal. Moreover, although Grant objected to certain facts in the PSR that stated he had the requisite knowledge, Grant did not provide the sentencing court with evidence to rebut the factual assertions that he was in charge of a drug operation in the New Bedford area and that he intended to provide the firearms to friends and family members in furtherance of their work in that operation. Consequently, the court was justified in relying on the contested facts. See United States v. Mir, 919 F.2d 940, 943 (5th Cir.1990) (explaining that, although defendant objected" }, { "docid": "12199461", "title": "", "text": "guilty plea despite noting that “it is highly unlikely that the suppression of [the statements in question] regarding drug trafficking activity ... would have affected [the defendant’s] decision to plead guilty.” United States v. Molina-Gomez, 781 F.3d 13, 25 (1st Cir. 2015). The First Circuit explained that determining whether the defendant would have pled guilty absent the error was “not our decision to make.... ‘[A] court has no right to decide for a defendant that his decision [to plead guilty] would have been the same had the evidence the court considers harmless not been present.’” Id. (second alteration in original) (quoting United States v. Weber, 668 F.2d 552, 562 (1st Cir. 1981)). The defendant “is entitled to determine for himself whether he still wishes to plead guilty given the suppression of the drug-trafficking-related statements.” Id. Insofar as Molina-Gomez may be read to mandate remand on any error without considering harmlessness, our precedents applying harmless error review, described above, foreclose adopting such a blanket rule. See, e.g., Richard, Davis, 530 F.3d at 1083; see also Miller v. Gammie, 335 F.3d 889, 892-93 (9th Cir. 2003) (en banc) (holding that a three-judge panel is bound by prior circuit precedent unless “clearly irreconcilable ... intervening higher authority” “effectively overrule[s]” the precedent). We instead adopt the rule articulated by a plurality of the circuit courts, under which we must consider whether an erroneous denial of a motion to suppress contributed to the defendant’s decision to plead guilty, and under which it is only the “rare[]” case in which we may definitively make the harmlessness determination necessary to preclude remand. Benard, 680 F.3d at 1213; see also United States v. Mikolon, 719 F.3d 1184, 1188-89 (10th Cir. 2013) (recognizing Be-nard’s standard for allowing the defendant to vacate the plea but concluding beyond a reasonable doubt that any error did not contribute to the defendant’s decision to plead guilty because “[t]he government unequivocally represented to [the defendant] and the court that it would not seek to admit [the defendant’s] statements at trial” and thereby took the contested statements “off the table”). Contrary to the Government’s arguments," }, { "docid": "13808430", "title": "", "text": "2913646, at *7 (D.Mass. Sept. 8, 2009). Petitioner has failed to show, in his memorandum or through the record, that any of his state convictions would have been successfully vacated. As such, the sentencing guidelines following his plea would not have changed, and therefore there is no prejudice. Thus, the allegations of ineffective counsel for failure challenge or object to the use his prior convictions fail. c. Failure to File a Motion of Severance The petitioner alleges that trial counsel was ineffective in failing to file a motion of severance “in light of movant’s lack of involvement with the other alleged co-conspirators.” (# 259 and 311 at 4) The petitioner does not address this claim in his memorandum, and provides no documentary support for the allegation. Further, courts have noted “that individuals who are indicted together generally should be tried together.” Turner, 501 F.3d at 73 (citing United States v. Pena-Lora, 225 F.3d 17, 33 (1st Cir.2000)); see also United States v. Flores-Rivera, 56 F.3d 319, 325 (1st Cir.1995) (“Thus, when multiple defendants are named in a single indictment, a defendant who seeks a separate trial can ordinarily succeed in obtaining one only by making a strong showing of evident prejudice. The hurdle is intentionally high ... ”) (internal citation and quotation marks omitted). To whit, there is simply no colorable claim that trial counsel’s failure to ask for a severance amounted to ineffective assistance of counsel. d. Failure to Advise Petitioner on the Sentencing Guidelines The petitioner appears to allege that trial counsel was ineffective for failing to advise the petitioner that he would be exposed to the career offender enhancement pursuant to 21 U.S.C. § 851. He states that counsel was ineffective for failing to “inform movant that by pleading guilty he would be exposed to an enhancement pursuant to 21 U.S.C. § 851.” (# 259 at 4) His claim appears to allege that if he had been advised as such, he would not have pled guilty. However, this is also contradicted by the record. During the plea colloquy, the court asked the Assistant United States Attorney John" }, { "docid": "4171156", "title": "", "text": "determined that the government’s discretionary decision not to make a downward departure motion was unassailable absent some allegation of bad faith. Even if his attorney had failed to understand the terms of the plea agreement and had misrepresented them to Tinajero-Ortiz, she concluded that he had failed to show Strickland prejudice. Regardless of what he may have been told, “there was no guarantee that the court would sentence him to 5 years.” Judge Schreier adopted in full the magistrate’s report and recommendation after concluding that Tinajero-Ortiz had “failed to show either that his counsel’s representation was objectively deficient or that any such deficiencies prejudiced the defense and affected the judgment.” She denied his § 2255 petition but granted him a certificate of appealability. Petitioner now argues not only that his counsel provided him constitutionally ineffective assistance, but also that he should have been granted an evidentiary hearing by the district court. II. Tinajero-Ortiz first argues that the district court erred in concluding that his counsel had not provided constitutionally ineffective assistance. “When addressing post-conviction ineffective assistance claims brought under § 2255, we review the ineffective assistance issue de novo and the underlying findings of fact for clear error.” United States v. Regenos, 405 F.3d 691, 692-93 (8th Cir.2005). The two part Strickland test “applies to challenges to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Tinajero-Ortiz has the burden to prove both that his counsel’s representation “fell below an objective standard of reasonableness,” Regenos, 405 F.3d at 693, and that there is a “reasonable probability that, but for counsel’s errors, he would not have [pled] guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. 366. Petitioner argues that his attorney provided constitutionally ineffective assistance in two ways. He suggests first that counsel misled him by telling him that he “would likely receive a sentence of five years for pleading guilty.” Tinajero-Ortiz points to counsel’s original sentencing memorandum in which he requested the court impose a sentence of “five years" }, { "docid": "2193325", "title": "", "text": "STAHL, Senior Circuit Judge. Defendant-appellant Thomas Ronald Theodore appeals from his conviction and sentence on nine counts of mail fraud, in violation of 19 U.S.C. § 1341, and three counts of violating -the Food Drug and Cosmetic Act, 21 U.S.C. §§ 331(a), (d), & (p). He contends that the district court erred: (1) when it denied defense counsel’s motion to withdraw and request for a continuance; (2) when it did not declare mid-trial a mistrial sua sponte; (3) when it did not conduct an evidentiary hearing on Theodore’s post-trial motion for a new trial and denied his motion for a new trial based on ineffective assistance of counsel; and (4) when it ordered restitution to victims without holding an evidentiary hearing. Because this case presents serious claims of ineffective assistance of counsel, we remand for an evidentiary hearing on Theodore’s post-trial motion for a new trial based on ineffective assistance. We note that the almost universal rule in these cases is that petitioners cannot raise ineffective assistance of counsel claims for the first time on direct review, the concern being that there is often no opportunity to develop the necessary evidence where the claim is first raised on direct appeal. See Ellis v. United States, 313 F.3d 636, 652 (1st Cir.2002); Knight v. United States, 37 F.3d 769, 774 (1st Cir.1994); United States v. Jadusingh, 12 F.3d 1162, 1169-70 (1st Cir.1994); United States v. Mala, 7 F.3d 1058, 1063 (1st Cir.1993), cert. denied, 511 U.S. 1086, 114 S.Ct. 1839, 128 L.Ed.2d 466 (1994). This rule does not apply in this instance because the record here is sufficiently developed to warrant further consideration of the previously raised issue of ineffective assistance of counsel as the entirety of the appeal revolves .around the question of whether Theodore’s counsel was ineffective within the strictures of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See United States v. Sotomayor-Vazquez, 249 F.3d 1, 13 (1st Cir.2001); United States v. Ademaj, 170 F.3d 58, 64 (1st Cir.), cert. denied, 528 U.S. 887, 120 S.Ct. 206, 145 L.Ed.2d 173 (1999). Here, we" }, { "docid": "23648479", "title": "", "text": "Rivera-Rodríguez, and PabónMandrell. II. Discussion A. Evidentiary Rulings On appeal, Arzola-Martínez, Muñiz-Massa, and Rivera-Moreno claim that the district court made several erroneous evidentiary rulings at trial. We disagree. We conclude that the district court did not abuse its discretion in making the evidentiary rulings at issue. 1. Standard/Scope of Review We review a district court’s evidentiary rulings and Brady determinations for abuse of discretion. United States v. DeCologero, 530 F.3d 36, 65 (1st Cir.2008); United States v. Walter, 434 F.3d 30, 33 (1st Cir.2006). We review de novo “whether the strictures of the Confrontation Clause have been met.” Walter, 434 F.3d at 33 (quoting United States v. Vega Molina, 407 F.3d 511, 522 (1st Cir.2005))(internal quotation marks omitted). “Only rarely—and in extraordinarily compelling circumstances—will we, from the vista of a cold appellate record, reverse a district court’s on-the-spot judgment concerning the relative weighing of probative value and unfair effect.” Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir.1988). 2. Analysis a. Arzola-Martínez Arzola-Martínez claims that the district court erred when it allowed the prosecution to present, as evidence of his membership in the conspiracy, a firearm and narcotics the police seized during separate arrests that he argues were unconnected to, even if they were contemporaneous with, the charged conspiracy. Arzola-Martínez argues that no evidence linked these events to the charged conspiracy, so admission of these events was improper character evidence under Rule 404(b) and prejudicial under Rule 403. Victor Javier Veguilla-Figueroa (“Officer Veguilla-Figueroa”), a member of the Puerto Rico Police Department (“PRPD”), testified that, around 9:00 p.m. on October 13, 2005, a date which fell within the time frame of the charged conspiracy, he and two other PRPD police officers performing surveillance in Guayama received a communication over their radio that three individuals in a particular vehicle were armed and had threatened someone. Officer Veguilla-Figueroa stated that he and his colleagues identified and pursued the car, which initially refused to stop. When the vehicle finally did stop, Officer VeguillaFigueroa placed the driver, Arzola-Martínez, under arrest and searched him, seizing a firearm. José A. Ortiz-Reyes (“Officer Ortiz-Reyes”), another PRPD" }, { "docid": "1803905", "title": "", "text": "2255. Oakes’s supporting memorandum asserted that his conviction and sentence should be vacated because his guilty plea had been neither knowing nor voluntary. Specifically, he based this assertion on a claim that he did not understand, at the time he pleaded guilty, that the government would have to prove that the images in his possession depicted actual children. On October 4, 2002, Oakes’s direct appeal was rejected. See United States v. Oakes, 47 Fed.Appx. 5, 6 (1st Cir.2002) (per curiam). This Court then took up Oakes’s habeas petition, raised sua sponte the question of procedural default, and denied relief on that basis. See United States v. Oakes, 224 F.Supp.2d 296 (D.Me. 2002). The Court of Appeals then granted Oakes a certificate of appealability, but limited its review to “[wjhether the district court [had] erred in denying petitioner’s 28 U.S.C. § 2255 motion on the ground of procedural default.” The Court of Appeals vacated the habeas judgment concluding that although the district court has the authority to raise the question of procedural default sua sponte, this Court failed to afford Oakes notice of its intention to rely upon his procedural default and an opportunity to respond to that issue. Oakes v. United States, 400 F.3d 92 (1st Cir.2005). The procedural default issue has now been briefed by the parties. I. DISCUSSION Given that the voluntariness of his plea was not challenged on direct appeal, Oakes has procedurally defaulted the claim. This procedural default can be excused, however, if Oakes makes a showing of cause and prejudice or actual innocence. Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). Oakes claims to satisfy both tests. A. Cause Oakes asserts that the cause for his procedural default was ineffective assistance of appellate counsel and that he suffered prejudice because he would not have pled guilty if he had known that part of the statute upon which his conviction rests was unconstitutional. At least one court has found that ineffective assistance of appellate counsel may constitute cause and prejudice to overcome a procedural default. See Boysiewick v. Schriro," }, { "docid": "19691898", "title": "", "text": "Fed. Ins. Co., 136 F.3d 71, 73 (1st Cir.1998) (“Construction of insurance contracts and application of their terms to facts are matters of law, which we review de novo.”). A. Coverage dispute regarding the scope of the term “damages” The main issue presented in this case is whether a third-party claim for reimbursement under IDEA is covered under the terms of the Policy as a claim for “money damages.” The parties disagree on the proper interpretation of the term “money damages” and they dispute whether, as a matter of insurance contract interpretation under Maine law, the term “money damages” includes monetary compensation that is equitable in nature. Per our decisions in Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 124 (1st Cir.2003), and Díaz-Fonseca v. Puerto Rico, 451 F.3d 13, 31 (1st Cir.2006), it is settled law in this circuit that “tort-like money damages, as opposed to compensatory equitable relief, are not available under IDEA.” Nieves-Márquez, 353 F.3d at 124. This rule stems from the Supreme Court’s decision in School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). In Burlington, the Supreme Court held that reimbursement of educational expenses was an available remedy under the Education of the Handicapped Act (EHA), IDEA’S predecessor statute, but explained that reimbursement could not be characterized as damages as it “merely requires the [defendant] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper [individualized educational program].” Id. at 370-71, 105 S.Ct. 1996. Relying on our decisions in Nieves-Márquez and Diaz-Fonseca, United National urges us to hold that a claim for reimbursement under IDEA is not a claim that seeks “money damages” under the Policy. However, United National’s contention is not supported by these precedents. While it is beyond cavil that tort-like monetary damages are not available under IDEA, the policy reasons that underlie our decisions in Nieves-Márquez and Diaz-Fonseca do not bind our interpretation of the types of claims that may be deemed covered under a contract of insurance" }, { "docid": "82630", "title": "", "text": "sufficiently developed to allow reasoned consideration of the claim.” Id. Here, though, the record is not sufficiently developed to allow us “to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. As Constant admits in his brief, while the prosecutor stated at sentencing that ACCA’s application to this case turned on whether a juvenile adjudication in Constant’s criminal history qualified as a predicate offense under the statute, the record is incomplete as to why trial defense counsel anticipated that the ACCA would apply. This information, along with testimony as to the exact advice that trial defense counsel gave to Constant, could be critical in assessing counsel’s performance. That leaves us with two options. As we usually do, we could require “ ‘that such claims “must originally be presented to the district court” as a collateral attack under 28 U.S.C. § 2255’ due to the paucity of the record and the district court’s ‘better position to adduce the relevant evidence’ as to whether counsel’s performance was deficient and whether such deficiency prejudiced the defendant.” United States v. Kenney, 756 F.3d 36, 48-49 (1st Cir.2014) (quoting United States v. Colón-Torres, 382 F.3d 76, 84-85 (1st Cir.2004)). Aternatively, in “special circumstances,” United States v. Vega Molina, 407 F.3d 511, 531 (1st Cir.2005), we have stated that where “the record is embryonic but ‘contain^] sufficient indicia of ineffectiveness,’ we may opt to remand for an evidentiary hearing without requiring the defendant to bring a collateral challenge.” Kenney, 756 F.3d at 49 (alteration in original) (quoting Colón-Torres, 382 F.3d at 85). For three reasons, we opt for such a remand in this case. First, and most importantly, we have significant “indicia of ineffectiveness.” The challenged advice at issue is written and unequivocal. While the government echoes the district court’s conclusion that “[trial defense counsel] was basically advising in this letter that [Constant] might be [subject to the ACCA] and that it’s possible that [he] wouldn’t be,” the February 12 letter was plainly more definitive, and the government points" }, { "docid": "17117051", "title": "", "text": "necessary because the controverted matter will not be taken into account in, or will not affect, sentencing. A written record of these findings and determinations must be appended to any copy of the presentence report made available to the Bureau of Prisons. Fed.R.Crim.P. 32(c)(1). We have held that the strictures of Rule 32(c)(1) bind the sentencing court to compliance. See United States v. Bruckman, 874 F.2d 57, 64 (1st Cir.1989) (finding a violation of Rule 32[ (c)(1)] when the district court fails to make or append such findings); United States v. Hanono-Surujun, 914 F.2d 15, 18 (1st Cir.1990) (collecting cases). The purposes of this rule are two-fold: (1) to protect “a defendant’s due process rights to be sentenced on the basis of accurate information”; and (2) to provide “a clear record of the disposition of controverted facts in the presentence report, which, in turn, reduces the likelihood that subsequent appellate or administrative decisions will be made based on improper or incomplete information.” Bruckman, 874 F.2d at 63-64. With regard to the first concern, we have held, however, that “a court may make implicit findings with regard to sentencing matters.” United States v. Ovalle-Márquez, 36 F.3d 212, 227 (1st Cir.1994); accord United States v. Cruz, 981 F.2d 613, 619 (1st Cir.1992) (“A court may make implicit findings on disputed factual questions by accepting the government’s recommendations at the sentencing hearing.” (internal quotations omitted)). During the sentencing hearing, the court gave each party the opportunity to discuss the basis for relying on the ATF agent’s testimony regarding what Rivera had told him when Rivera’s own words did not include the same statements. The contested statements concerned Grant’s alleged knowledge that he was giving the firearms to individuals who would use them in connection with a felony. After both parties were heard on the statements of the ATF agent and the informant, the district court ruled that Grant “had reason to believe that the weapons would be used or possessed in connection with another felony offense.” Transcript of Sentencing Hearing at 26. The court indicated in writing, as part of the judgment, that" }, { "docid": "18258861", "title": "", "text": "denial of severance, a “defendant must show ‘prejudice so pervasive that a miscarriage of justice looms.’ ” United States v. Turner, 501 F.3d 59, 73 (1st Cir.2007) (quoting United States v. LiCausi, 167 F.3d 36, 49 (1st Cir.1999)). “[SJeverance is particularly disfavored in conspiracy cases.” Id. As a general matter, we cannot say that the district court abused its wide discretion in refusing to grant separate trials at the outset of the proceedings. Our jurisprudence favors trying co-conspirators together, despite the reality that evidence admissible against one defendant may be, and often is, inadmissible with regard to others. See, e.g., id. We see no unusual circumstances that should have tilted the balance in favor of severance in this particular case. Second, we address Bucci’s contention that the district court committed reversible error by issuing a limiting instruction rather than redacting Bucci’s name from the recording and the transcript provided to the jury. Even where the Confrontation Clause is implicated, we ordinarily presume that jurors will follow limiting instructions. United States v. Rodríguez-Duran, 507 F.3d 749, 769 (1st Cir.2007). Occasionally, however, at least in the constitutional context, a limiting instruction will not be sufficient to preserve a co-defendant’s rights where the extrajudicial statement is “powerfully incriminating” and “ ‘inculpatory on its face.’ ” Id. (quoting United States v. Vega Molina, 407 F.3d 511, 520 (1st Cir.2005)). “Statements that are incriminating only when linked to other evidence in the case” do not merit such scrutiny. Id. (quoting Vega Molina, 407 F.3d at 520) (internal quotation marks omitted). The district court determined that Jordan’s remarks, while powerfully incriminating as to Jordan, did not directly inculpate Bucci. Significantly, defense counsel candidly and explicitly agreed with this assessment while arguing Bucci’s motion to sever. To be sure, Jordan’s remarks were neither flattering nor helpful to Buc-ci’s defense. The recording contains numerous derisive references to Bucci as well as a discussion concerning whether Bucci had been arrested and whether he was providing information to law enforcement. Thus, the recording surely implies that Bucci participated with Jordan and Minotti in an illicit undertaking of some species. Nevertheless," }, { "docid": "16237041", "title": "", "text": "United States v. Lucia, 416 F.2d 920 (5th Cir.1969)), cert. denied, 402 U.S. 943, 91 S.Ct. 1607, 29 L.Ed.2d 111 (1971). Similarly, courts have permitted guilty pleas to be withdrawn where the defendant pleaded guilty to something that is not a crime. In United States v. Barboa, 777 F.2d 1420 (10th Cir.1985), a defendant brought a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, alleging inter alia that his guilty plea to a conspiracy charge was invalid because his alleged co-conspirator was actually a government informant. The court held that no indictable conspiracy existed where the only parties were the defendant and government agents or informants, and that the district court had abused its discretion in denying an evidentiary hearing to determine whether the person with whom the defendant purportedly conspired was actually a government agent. The court, moreover, observed that “[i]f Barboa pled guilty to something which was not a crime, he is not now precluded from raising this jurisdictional defect, which goes ‘to the very power of the State to bring the defendant into court to answer the charge brought against him.’ ” Id. at 1423 n. 3 (quoting Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628 (1974). See also United States v. Ruizdel Valle, 8 F.3d 98 (1st Cir.1993) (holding that defendant should have been allowed to withdraw guilty plea post-sentence in part on basis that the same district judge ruled that similar facts in co-defendant’s case did not constitute crime). We note, moreover, that every circuit court to have considered whether a defendant may withdraw his plea to a violation of 18 U.S.C. § 924(c)(1) in light of Bailey’s change in the law has addressed this issue on the merits. See United States v. Garcia, 1996 WL 128123 (8th Cir. March 25,1996) (unpublished disposition) (summarily vacating guilty plea on direct appeal on basis of Bailey); United States v. Keebler, 78 F.3d 598 (10th Cir.1996) (table), 1996 WL 84104 (10th Cir. Feb. 27, 1996) (remanding to trial court for reconsideration of plea in light of Bailey); United States" }, { "docid": "82631", "title": "", "text": "evidence’ as to whether counsel’s performance was deficient and whether such deficiency prejudiced the defendant.” United States v. Kenney, 756 F.3d 36, 48-49 (1st Cir.2014) (quoting United States v. Colón-Torres, 382 F.3d 76, 84-85 (1st Cir.2004)). Aternatively, in “special circumstances,” United States v. Vega Molina, 407 F.3d 511, 531 (1st Cir.2005), we have stated that where “the record is embryonic but ‘contain^] sufficient indicia of ineffectiveness,’ we may opt to remand for an evidentiary hearing without requiring the defendant to bring a collateral challenge.” Kenney, 756 F.3d at 49 (alteration in original) (quoting Colón-Torres, 382 F.3d at 85). For three reasons, we opt for such a remand in this case. First, and most importantly, we have significant “indicia of ineffectiveness.” The challenged advice at issue is written and unequivocal. While the government echoes the district court’s conclusion that “[trial defense counsel] was basically advising in this letter that [Constant] might be [subject to the ACCA] and that it’s possible that [he] wouldn’t be,” the February 12 letter was plainly more definitive, and the government points to nothing else in the record that supports its claim that the advice only posited a possible outcome. The written, unequivocal advice was also both incorrect and material. The sentencing range under the Guidelines of 210 to 262 months as calculated by trial defense counsel in the February 12 letter far exceeded Constant’s actual Guidelines range of 53 to 78 months. Based on this large disparity, trial defense counsel informed the court at sentencing that Constant’s decision to proceed to trial “was driven by the ACCA,” and that “[h]is only hope to avoid [ACCA’s 15-year minimum sentence] was to have a trial.” Second, this is not a case in which the ineffective assistance claim calls into question a broad array of issues. We instead have here “an isolated and easily analyzed trial decision.” See Kenney, 756 F.3d at 49 (requiring the filing of a habeas claim where “the alleged deficiency ... did not consist of an isolated and easily analyzed trial decision”). Finally, resolution of the Strickland claim may shed light relevant to the district" }, { "docid": "19691897", "title": "", "text": "the Recommended Decision, but United National did not file any objections. On July 1, 2009, the district court adopted the Recommended Decision and granted United National’s motion for summary judgment. SU 37 now appeals that decision. II. Discussion We review the district court’s grant of summary judgment on cross-motions for summary judgment de novo. Barnes v. Fleet Nat’l Bank N.A., 370 F.3d 164, 170 (1st Cir.2004). “‘Cross-motions [for summary judgment] ... require us to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed.’ ” Littlefield v. Acadia Ins. Co., 392 F.3d 1, 6 (1st Cir.2004) (quoting Barnes, 370 F.3d at 170). Where, as here, “the facts upon which liability is claimed or denied under an insurance policy are undisputed and the existence or amount of liability depends solely upon a construction of the policy, the question presented is one of law for the court to decide.” Atlas Pallet, Inc. v. Gallagher, 725 F.2d 131, 134 (1st Cir.1984); see also Stop & Shop Cos., Inc. v. Fed. Ins. Co., 136 F.3d 71, 73 (1st Cir.1998) (“Construction of insurance contracts and application of their terms to facts are matters of law, which we review de novo.”). A. Coverage dispute regarding the scope of the term “damages” The main issue presented in this case is whether a third-party claim for reimbursement under IDEA is covered under the terms of the Policy as a claim for “money damages.” The parties disagree on the proper interpretation of the term “money damages” and they dispute whether, as a matter of insurance contract interpretation under Maine law, the term “money damages” includes monetary compensation that is equitable in nature. Per our decisions in Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 124 (1st Cir.2003), and Díaz-Fonseca v. Puerto Rico, 451 F.3d 13, 31 (1st Cir.2006), it is settled law in this circuit that “tort-like money damages, as opposed to compensatory equitable relief, are not available under IDEA.” Nieves-Márquez, 353 F.3d at 124. This rule stems from the Supreme Court’s decision in School Committee of Burlington v. Department of" }, { "docid": "23648478", "title": "", "text": "for the remainder of his natural life followed by a term of supervised release of ten years. On June 25, the district court sentenced Rivera-Moreno to a term of imprisonment of thirty-five years followed by a term of supervised release of fifteen years. Finally, on July 28, the district court sentenced Arzola-Martinez to a term of imprisonment for the remainder of his natural life followed by a term of supervised release of fifteen years. Between May and August of 2008, each Appellant filed his timely notice of appeal. Each Appellant raises multiple issues on appeal. First, we address challenges by Arzola-Martínez, Muñiz-Massa, and Rivera-Moreno to the district court’s evidentiary rulings. Second, we consider the argument made by these three Appellants that the evidence presented at trial was insufficient for a jury to find them guilty beyond a reasonable doubt. We then consider, under plain error review, whether the ex parte conversations that the district judge held with prospective jurors violated Appellants’ Sixth Amendment rights. Finally, we evaluate various issues raised concerning the sentencing of Arzola-Martínez, Rivera-Rodríguez, and PabónMandrell. II. Discussion A. Evidentiary Rulings On appeal, Arzola-Martínez, Muñiz-Massa, and Rivera-Moreno claim that the district court made several erroneous evidentiary rulings at trial. We disagree. We conclude that the district court did not abuse its discretion in making the evidentiary rulings at issue. 1. Standard/Scope of Review We review a district court’s evidentiary rulings and Brady determinations for abuse of discretion. United States v. DeCologero, 530 F.3d 36, 65 (1st Cir.2008); United States v. Walter, 434 F.3d 30, 33 (1st Cir.2006). We review de novo “whether the strictures of the Confrontation Clause have been met.” Walter, 434 F.3d at 33 (quoting United States v. Vega Molina, 407 F.3d 511, 522 (1st Cir.2005))(internal quotation marks omitted). “Only rarely—and in extraordinarily compelling circumstances—will we, from the vista of a cold appellate record, reverse a district court’s on-the-spot judgment concerning the relative weighing of probative value and unfair effect.” Freeman v. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir.1988). 2. Analysis a. Arzola-Martínez Arzola-Martínez claims that the district court erred when it allowed the" } ]

[ { "docid": "11745903", "title": "", "text": "at his local board and requested an application form for conscientious objector status, completed the form and returned it to the board on August 24, 1966. The local board rejected his claim for change in status in writing on the same day. There are three assignments of error, all centering around the failure of the District Court to grant appellant’s motion for judgment of acquittal. The first assignment is based on the racial composition of the Selective Service Board. Appellant, a Negro, contended that Negroes were systemieally excluded from selective service board service. This assignment is foreclosed by our holding in Clay v. United States, 5 Cir., 1968, 397 F.2d 901. It is thus without merit. The second is based on the fact of the introduction of appellant’s selective service file into evidence through the clerk of appellant’s local board. This assignment is also foreclosed against appellant. Lowe v. United States, 5 Cir., 1968, 389 F.2d 51; Pardo v. United States, 5 Cir., 1966, 369 F.2d 922. The other error asserted is based on the failure of the draft board to classify appellant as a conscientious objector. On the trial appellant contended that the denial to him of such classification was without basis in fact, arbitrary, summary and contrary to law. The opposite is true. As noted, appellant did not contend that he was a conscientious objector until after he had been ordered to report for induction. The regulation, Title 32, § 1625.2, Code of Federal Regulations, relating to reopening and reconsidering a classification prior to and after an order to report for induction, provides that “ * * * the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction * * * unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.” Appellant’s application for conscientious objector status shows that he acquired the belief which is the basis of his claim when he “Accepted Islam as taught by Honorable" } ]

[ { "docid": "23455646", "title": "", "text": "way —even in the noncombat elements of the medical branch — is contrary to the principle of Christian love. This is so because my time in the army has made me realize that, without the medical branch, there can be no army —that, by participating even in the noncombat elements of the medical branch, I am personally allowing the army to carry on in its function of killing human beings. I realize that my purpose is not really to give loving care to the injured but to aid in insuring that the continuous cycle of killing never stops. I now realize that the army is a complex organization made up of many parts, all functioning together as a whole. Without any one of these parts, it cannot function properly. The medical branch is simply one of the parts without which the army cannot function. It is just as much a part of the army as the infantry, which carries on the fighting. This is dramatically illustrated to the motto of the Army Medical Service: “To conserve the fighting strength.” Consequently, I now find participation in the army in any capacity — even the noncombat elements of the medical branch — contrary to my religious beliefs. This change of view prompted Hel-wiek to apply in January 1970 for discharge under Army Regulation 635-20 as a 1-0 conscientious objector — i. e., one conscientiously opposed to both combatant and noncombatant military service. AR 635-20 sets forth the policy, criteria, and procedures for the disposition of conscientious objector claims of active military personnel. The Regulation requires the Army to consider “requests for separation based on bona fide conscientious objection to participation in war, in any form, when such objection develops subsequent to entry into the active military service.” AR 635-20(3) (a). To coordinate with the Selective Service System, however, the Army will not consider claims based on conscientious objection growing out of experiences before entering military service unless that objection did not become fixed until after entry into the service. AR 635-20(3) (b). Under the Regulation, a chaplain, a psychiatrist, and a hearing" }, { "docid": "23455662", "title": "", "text": "in religious beliefs subsequent to classification as I-A-0 in order to present a valid claim for discharge on conscientious objector grounds. United States ex rel. Healy v. Beatty, 5 Cir. 1970, 424 F.2d 299, 302, aff’g S.D.Ga.1969, 300 F.Supp. 843. Under AR 635-20 there is no requirement that the religious belief upon which objection is based must manifest itself only subsequent to entry into the service. Indeed, the claimant may properly hold the same or similar religious beliefs both before and after his entry into the service. Rather, the requirement of AR 635-20(3) (b) is that the objection itself- — -the objection to participation in war in any form — must become fixed only after entry into the Army. Although the Board has inart-fully phrased it, we assume that it meant to find this latter fact — that Hel-wick’s objection to participation in war in any form existed at the time he was granted a I-A-0 classification and did not thereafter change. We conclude, however, that there was no basis in fact for the Board’s finding that Helwick’s objection existed prior to his entry into the Army and that his views did net thereafter change. In the statements attached to his application for discharge, Helwick presented a prima facie claim that his views had indeed changed. At the time he applied to his local draft board for a I-A-0 classification, he was — it was true — motivated by the same religious objections to killing that compelled him later to seek a discharge. When he first entered the Army as a I-A-0 conscientious objector, however, he believed that it was in accordance with his religious beliefs to participate in the medical branch of the Army; there he could humanely administer to the needs of all injured participants of war. After entering the Army and going through basic training, his views changed. He came to realize that the purpose of the medical corps— like that of other noncombatant elements —is to support the partisan efforts of the combat forces. For that reason Helwick now finds participation in the Army in any" }, { "docid": "9334969", "title": "", "text": "his Battalion Commander because of this restriction, appellant sought a transfer to another branch, but his application to this end was denied, and orders were issued assigning appellant to Viet Nam for noncombatant duty. While on leave pending shipment abroad, appellant filed with the Military District of Washington at Fort McNair an application for discharge from the Army as one who had become a conscientious objector after enlistment. Army Regulation No. 635-20, issued January 22, 1969, under the authority of Department of Defense Directive 1300.6, dated May 10, 1968, embodies the policies and procedures to be observed in the case of “military personnel who, by reason of religious training and belief, claim conscientious objection to participation in war in any form.” The general policy is stated to be that consideration will be given to separation requests “when such (conscientious) objection develops subsequent to entry into the active military service.” But it is also said that “[rjequests for discharge after entering military service will not be accepted when— * * * * * * (3) Based on essentially political, sociological, or philosophical views, or on a merely personal moral code. ****** As contemplated by the procedure prescribed in AR 635-20, appellant was interviewed by an Army chaplain, an Army psychiatrist, and an officer “in the grade of 0-3 or higher, who is knowledgeable in policies and procedures relating to conscientious objector matters.” Their findings and recommendations were made part of appellant’s application file, which was forwarded to the Adjutant General at Army Headquarters in Washington. There it was reviewed by a board of three officers, and thereafter the Adjutant General notified appellant that, “by order of the Secretary of the Army,” his application was disapproved. The reason given was that “[ejvidence presented indicates your objection to service is based upon a personal moral code and is politically and sociologically oriented.” In his application, appellant related his upbringing in the Jewish faith, to which he continues actively to adhere. His answer to the query in the application form as to the basis of his claim of conscientious objection is set forth in" }, { "docid": "12153765", "title": "", "text": "medical students which permits them to join the Army Reserve as commissioned officers and to postpone active duty until medical studies are completed. In July, 1971, Nürnberg completed his studies and in October, 1971, applied for discharge as a conscientious objector. His application was finally denied by the Conscientious Objector Review Board (Board) in September, 1972, and he was ordered to active duty beginning January 8, 1973. The basis for denial was not that petitioner was not a conscientious objector, but that his conscientious objector beliefs had become crystallized and were fixed prior to his voluntary enlistment in the Army in February, 1969. Paragraph 5(c) of Army Regulation 135-25 provides that consideration will not be given to requests for discharge based solely on conscientious objection which existed, but was not claimed, prior to the member’s initial entry into military service. On January 3, 1973, Dr. Nürnberg filed a petition for a writ of habeas corpus and an order to show cause why a preliminary injunction should not issue, staying his orders to report for active duty as a physician with the United States Army. The motion for a preliminary injunction was heard on January 5, 1973, before Hon. Robert L. Carter, United States District Judge, Southern District of New York. By memorandum decision dated January 8, 1973, a preliminary injunction was issued. The respondents submitted a written memorandum in opposition to the petition, and the writ was granted by Judge Carter on February 9, 1973 (355 F.Supp. 1187). No evidentiary hearing- was held. This is an appeal by the respondents seeking that the order below be vacated and that the petition for writ of habeas corpus be dismissed. I In support of His application for conscientious objector status, Dr. Nürnberg, pursuant to regulation, filed a written statement in which he set forth his religious training and beliefs, and provided letters of reference from his mother, two doctor friends and a Rabbi. In February and June, 1972, he was interviewed at Fort Totten, New York, by a chaplain, Captain Donald N. Martin, who concluded that he was sincere in his conscientious" }, { "docid": "23455663", "title": "", "text": "finding that Helwick’s objection existed prior to his entry into the Army and that his views did net thereafter change. In the statements attached to his application for discharge, Helwick presented a prima facie claim that his views had indeed changed. At the time he applied to his local draft board for a I-A-0 classification, he was — it was true — motivated by the same religious objections to killing that compelled him later to seek a discharge. When he first entered the Army as a I-A-0 conscientious objector, however, he believed that it was in accordance with his religious beliefs to participate in the medical branch of the Army; there he could humanely administer to the needs of all injured participants of war. After entering the Army and going through basic training, his views changed. He came to realize that the purpose of the medical corps— like that of other noncombatant elements —is to support the partisan efforts of the combat forces. For that reason Helwick now finds participation in the Army in any capacity contrary to his religious beliefs. Such views, if sincerely held, would clearly entitle him to discharge as a 1-0 conscientious objector under AR 635-20(3) (b). We have already determined that there is no evidence in the record to support a finding that Helwick does not truly hold religious scruples against participation in war in any form. The question then is whether there is any evidence to cast doubt upon his claim that his objection became fixed only after entry into the Army. The district court purported to find such evidence in the admitted fact that Helwick expressed similar religious views when he applied for a I-A-0 classification. As noted above, however, there is no requirement in the law that one’s religious beliefs manifest themselves only after entry into the Army. United States ex rel. Healy v. Beatty, 5 Cir. 1970, 424 F.2d 299, 302. Both the district court and the Board thought it unlikely that Hel-wick’s views would change after having been exposed to military life for only two and a half months. Actually" }, { "docid": "22546248", "title": "", "text": "635-20, ¶3: “a. Consideration will be given to requests for separation based on bona fide conscientious objection to participation in war, in any form, when such objection develops subsequent to entry into the military service. “b. Federal courts have held that a claim to exemption from military service under Selective Service laws must be interposed prior to notice of induction, and failure to make timely claim for exemption constitutes waiver of the right to claim. . . . Requests for discharge after entering military service will not be favorably considered when— “(1) Based on conscientious objection which existed, but which was not claimed prior to notice of induction, enlistment or appointment.” See also Department of Defense Directive No. 1300.6, § IV B 2. “You also asked whether the Army allows a soldier to file for discharge in instances where his conscientious objector views are fixed after notice of induction but prior to entry into the military service. Present practice grants the soldier the opportunity to file in such cases.” The letter additionally explains the composition and operation of the Army 1-0 Conscientious Objector Review Board, which has the responsibility of ruling on applications for conscientious objector discharges. The Board is composed of a senior officer, an officer in the Judge Advocate General Corps, a chaplain, and a Medical Corps officer. Only two votes are required to approve an application. The same letter from the General Counsel of the Department of the Army reports that the identical interpretation prevailed in 1965, when the petitioner first was ordered to report for induction. Mr. Justice Douglas, dissenting. The rather stuffy judicial notion that an inductee’s realization that he has a “conscientious” objection to war is not a circumstance over which he has “no control” within the meaning of the Regulation is belied by experience. Saul of Tarsus would be a good witness: “Now as he journeyed he approached Damascus, and suddenly a light from heaven flashed about him. And he fell to the ground and heard a voice saying to him, ‘Saul, Saul, why do you persecute me?’ And he said, ‘Who are" }, { "docid": "23455661", "title": "", "text": "(E.D.N.Y.1968); Packard v. Rollins, 307 F.Supp. 1388 (W.D.Mo.1969). Ordinarily our review might end here. In this case, however, the district court apparently had a premonition of error, for it went on to hold that “even if the consideration of the Selective Service File, for the purpose indicated, was improper, the Court finds- from the evidence introduced that there was and is a basis in fact for the conclusion that there has not been a substantial change in petitioner’s professed religious beliefs subsequent to his entry in the military service.” 318 F.Supp. at 883. We must therefore examine the evidence before the Board to determine whether the district court’s latter holding was correct. Before doing so, however, we must clarify one point. Both the Board and the district court loosely assert that there has been no substantial change in Helwick’s religious beliefs subsequent to his I-A-0 classification and entry into the Army. The trouble with this statement is that there is nothing in the Statute, the Regulations or the decisional law which requires a substantial change in religious beliefs subsequent to classification as I-A-0 in order to present a valid claim for discharge on conscientious objector grounds. United States ex rel. Healy v. Beatty, 5 Cir. 1970, 424 F.2d 299, 302, aff’g S.D.Ga.1969, 300 F.Supp. 843. Under AR 635-20 there is no requirement that the religious belief upon which objection is based must manifest itself only subsequent to entry into the service. Indeed, the claimant may properly hold the same or similar religious beliefs both before and after his entry into the service. Rather, the requirement of AR 635-20(3) (b) is that the objection itself- — -the objection to participation in war in any form — must become fixed only after entry into the Army. Although the Board has inart-fully phrased it, we assume that it meant to find this latter fact — that Hel-wick’s objection to participation in war in any form existed at the time he was granted a I-A-0 classification and did not thereafter change. We conclude, however, that there was no basis in fact for the Board’s" }, { "docid": "21943719", "title": "", "text": "the Army based the refusal to discharge Petitioner as an 1-0 on the ground that the evidence showed no substantial change in his religious beliefs since he was classified as noncombatant. Respondents say that the “basis in fact” test must be applied to this finding. The trouble with this is that I know no basis in law for the contention. I am not aware of the legal source of the argument that the want of substantial change in religious belief after induction bars the serviceman from obtaining relief in the courts. There is nothing in the statute, the Regulations or in the decisional law which estops an inductee from claiming, in a proper case, full exemption despite his receiving an I-A-0 classification as requested. Respondents’ argument seems to be founded in waiver and is, I surmise, based upon AR 635-20 § 3 which states (as “Policy”) that “Consideration will be given to requests for separation based on bona fide conscientious objection to participation in war, in any form, when such objection develops subsequent to entry into the active military service.” The argument seems to be that Healy’s religious beliefs are the same now as they were at the pre-induction stage and hence did not “develop subsequent to entry into the active military service.” Indeed, as I recall the evidence, Private Healy conceded this. But this loses sight of the fact that the Regulations speak of the development of conscientious objection to participation in war “in any form” after induction, that is to say participation in such noncombatant service as the Medical Corps. The record in this case indicates that Healy’s beliefs have undergone material change since induction. He no longer believes that the Medical Corps is a noncombatant arm of the service. In this connection he asserts: “The first day of training the Commanding Officer of MTC, in explaining his position to the new trainees, said, T am a soldier first and a doctor second. And it is stressed in our own training that the medic is to be a soldier first and only then a medic. Of course, what" }, { "docid": "23455647", "title": "", "text": "conserve the fighting strength.” Consequently, I now find participation in the army in any capacity — even the noncombat elements of the medical branch — contrary to my religious beliefs. This change of view prompted Hel-wiek to apply in January 1970 for discharge under Army Regulation 635-20 as a 1-0 conscientious objector — i. e., one conscientiously opposed to both combatant and noncombatant military service. AR 635-20 sets forth the policy, criteria, and procedures for the disposition of conscientious objector claims of active military personnel. The Regulation requires the Army to consider “requests for separation based on bona fide conscientious objection to participation in war, in any form, when such objection develops subsequent to entry into the active military service.” AR 635-20(3) (a). To coordinate with the Selective Service System, however, the Army will not consider claims based on conscientious objection growing out of experiences before entering military service unless that objection did not become fixed until after entry into the service. AR 635-20(3) (b). Under the Regulation, a chaplain, a psychiatrist, and a hearing officer interviewed Helwick. Based on the results of these interviews and Helwick’s statements in his application, his unit commander recommended disapproval of Helwick’s application. Helwick’s battalion commander, the Medical Training Center commander, and the post commander routinely endorsed the recommendation of the unit commander and forwarded Helwick’s application to the Conscientious Objector Review Board. On March 24, 1970, the Conscientious Objector Review Board denied Helwick’s request for discharge as a 1-0 conscientious objector. In a written opinion the Board assigned two grounds for its decision: (1) that Helwick does not “truly hold” views against participation in war in any form which are derived from religious training and belief, and (2) that Helwick’s views have not changed subsequent to his I-A-0 classification and entry into military service so as to entitle him to discharge under AR 635-20(3) (b). Helwick filed a petition for writ of habeas corpus April 13, 1970, in the district court on the ground that the Army wrongfully denied his application for discharge as a 1-0 conscientious objector. Finding a basis in fact" }, { "docid": "12816378", "title": "", "text": "such objection develops subsequent to entry into the military service. b. Federal courts have held that a claim to exemption from military service under Selective Service laws must be interposed prior to notice of induction, and failure to make timely claim for exemption constitutes a waiver of the right to claim. However, claims based on conscientious objection growing out of experiences prior to entering military service, but which did not become fixed until entry into the service, will be considered. Requests for discharge after entering military service will not be favorably considered when — (1) Based on conscientious objection which existed, but which was not claimed prior to induction, enlistment, or appointment. . . . . See United States ex rel. Checkman v. Laird, 469 F.2d 773, 778 (2d Cir. 1972); Scott v. Commanding Officer, 431 F.2d 1132, 1138 (3d Cir. 1970). . We do not hold that the Board can never rely on facts occurring prior to crystallization as bases for an inference of insincerity. However, as the time period between the events and crystallization increases, the probative value of the facts decreases. . See also United States v. Rutherford, 437 F.2d 182 (8th Cir. 1971); United States v. Cummins, 425 F.2d 646 (8th Cir. 1970); United States v. Bornemann, 424 F.2d 1343 (2d Cir. 1970). . Petitioner’s father concluded his letter as follows: I am sure Michael is sincere in his Christian beliefs as a Catholic and that in the last year he has been deeply reconsidering his personal philosophy. As a result since entering on active duty he has finally and sincerely, I believe, concluded that being a conscientious objector is the only morally honest course he can follow concerning the Vietnam or any other war. Considering my own feelings, I am sorry that it has become necessary for Michael to apply for the C O separation from the military service; however, considering his deep religious beliefs and the unjustified Vietnam war that exemplifies the futility and horror of a war that forces young men to kill one another, murder civilians and destroy a whole civilized country," }, { "docid": "14218457", "title": "", "text": "PER CURIAM: Petitioner seeks summary relief from denial by the district court of a writ of habeas corpus and of an application for a stay of a general court-martial now set for September 3, 1968 at which he is to be tried on charges of wilful disobedience of a superior officer. The disobedience is alleged to have occurred on July 9, 1968. Petitioner was inducted February 28, 1968. The crux of the petition below, and of the petition to this court, is that the Army has failed to properly make available to petitioner his right to apply for discharge as a conscientious objector under Army Regulation 635-20 and that after he did file his application (on or about June 4, 1968) the Army frustrated and failed to promptly process and grant his application, all in violation of the Army’s own regulations and of requirements of administrative due process. The district court denied relief but retained jurisdiction so that if after exhaustion of military remedies petitioner is not satisfied that the military courts “dealt fully and fairly” with his allegations appropriate federal judicial relief will be available. Regulation 635-20, filed with this court as an exhibit, dated May 27, 1968, reaches conscientious objection developed subsequent to entry into the military service. It excludes from its scope requests for discharge based solely on conscientious objection which existed but was not claimed prior to induction or was claimed and denied by the Selective Service System prior to induction. An amendment issued on or about July 18, 1968, states that consideration will be given to claims of conscientious objection growing out of experiences prior to entering military service but which did not become fixed until entry into the service Such record as is presented to us tends to show (although we make no finding on a necessarily fragmentary record that this occurred) that before induction petitioner presented a claim of conscientious objector status to his draft board but only after receiving notice of induction. In recent cases two circuits have taken differing positions on the necessity of exhaustion of the procedures of the military" }, { "docid": "22800278", "title": "", "text": "Mr. Justice Stewart delivered the opinion of the Court. When a member of the armed forces has applied for a discharge as a conscientious objector and has exhausted all avenues of administrative relief, it is now settled that he may seek habeas corpus relief in a federal district court on the ground that the denial of his application had no basis in fact. The question in this case is whether the district court must stay its hand when court-martial proceedings are pending against the serviceman. The petitioner, Joseph Parisi, was inducted into the Army as a draftee in August 1968. Nine months later he applied for a discharge as a conscientious objector, claiming that earlier doubts about military service had crystallized into a firm conviction that any form of military activity conflicted irreconcilably with his religious beliefs. He was interviewed by the base chaplain, the base psychiatrist, and a special hearing officer. They all attested to the petitioner’s sincerity and to the religious content of his professed beliefs. In addition, the commanding general of the petitioner’s Army training center and the commander of the Army hospital recommended that the petitioner be discharged as a conscientious objector. His immediate commanding officer, an Army captain, disagreed, recommending disapproval of the application on the ground that the petitioner’s beliefs were based on essentially political, sociological, or philosophical views, or on a merely personal moral code. In November 1969, the Department of the Army denied the petitioner conscientious objector status, on the grounds that his professed beliefs had become fixed prior to entering the service and that his opposition to war was not truly based upon his religious beliefs. On November 24, 1969, the petitioner applied to the Army Board for Correction of Military Records (hereafter sometimes ABCMR) for administrative review of that determination. Four days later the petitioner commenced the present habeas corpus proceeding in the United States District Court for the Northern District of California, claiming that the Army’s denial of his conscientious objector application was without basis in fact. He sought discharge from the Army and requested a preliminary injunction to" }, { "docid": "12816369", "title": "", "text": "(1st Cir. 1969). Petitioner stated in his application that at the time he became a member of the ROTC, he did not consider himself to be a conscientious objector. His views evolved and congealed over a period of years and it would be illogical and indeed inconsistent with AR 635-20 to hold that because he once voluntarily participated in the military, he could not thereafter sincerely assert conscientious objector beliefs. That petitioner was a son and grandson of career military officers is clearly an inadequate basis in fact. First, petitioner’s father wrote a letter to the Board attesting to his son’s sincerity. Second, so to hold would be to deny the relief provided in AR 635-20 to offspring of career military officers; the illogic of such a position is apparent. Maj. Custer found that petitioner’s present position “represents an entire reversal from his upbringing as the son of a professional military officer” and that because he was an Army “brat,” he was knowledgeable about the military prior to entry on active service. However, Maj. Custer’s conclusions contradict completely the description of petitioner’s upbringing by his mother and father. Petitioner’s father stated that “[t]he real purpose of the military, the bombing, the killing and maiming and the general destruction was never forcefully brought to his attention until the bloodbath of South East Asia.” Both parents described petitioner as demonstrating pacifistic tendencies from an early age. App. at 39a-41a. We see no reason in the record to accord greater weight to Maj. Custer’s surmise as to petitioner’s upbringing than to the statements of petitioner’s parents. The fact that petitioner’s beliefs crystallized after only one month of active service also is an insufficient basis in fact. Petitioner stated in his application that he was moving toward a conscientious objector position prior to entry into service and that it was not until he entered active service that he was forced to decide precisely the nature of his views and whether to follow the dictates of these beliefs. It is not surprising to us that his decision was made after only one month in service" }, { "docid": "3971718", "title": "", "text": "ANDERSON, Circuit Judge: Lee Lovallo, an enlistee and specialist E4 in the United States Army, filed a petition in the district court for a writ of habeas corpus to effect his release from military service on the ground that he was a conscientious objector. This action followed a denial by the Army’s Conscientious Objection Review Board of his application for a discharge from the Army which he had filed on September 18, 1970 on the same ground. The district court held that there was no objective evidence upon which the Department of the Army could have based its denial and granted the relief requested. The principal issue on appeal is whether there was any “basis in fact” for the Army’s determination that petitioner’s beliefs lacked the necessary sincerity. At a time when Lovallo faced draft induction he admittedly looked for an easy way out and when his attempt to join the Peace Corps failed, he enlisted in the Army as a bandsman because he considered it better to carry an instrument than a weapon. In March of 1969 he was assigned to the 26th Army Band, Fort Wadsworth, Staten Island where he expected to remain throughout the period of his enlistment. On August 5, 1970, however, he received notice that he was to be transferred to Korea. It was this order for reassignment and the circumstances which surrounded it that precipitated his application for discharge as a conscientious objector. In the application petitioner stated, “My condemnation of killing is a religious conviction based upon both formal and derived religious beliefs.” He recounted his life-long instructions as a Roman Catholic, his study of philosophy at a university, and the influence of fellow members of the Army band from which his “conscience assumed a new depth of commitment to beliefs that [he] had long before internalized” as the sources from which his convictions derived. Petitioner explained that his ideas concerning the sanctity of life and his repugnance to participation in military operations did not mature until he received his orders to Korea and that ultimately it was this scheduled transfer that effected" }, { "docid": "22546247", "title": "", "text": "govern all conscientious objector claims than would the Army, whose mission is to train inductees as members of military units of maximum effectiveness and morale. Department of Defense Directive No. 1300.6, § VI B (May 10, 1968): “With respect to persons who have already served a portion of their obligated service who request discharge or non-combatant service for conscientious objection, the following actions will be taken: “2. Pending decision on the case and to the extent practicable the person will be employed in duties which involve the minimum conflict with his asserted beliefs. . . .” Army Regulation No. 635-20, ¶ 6a (July 31, 1970): “[I]ndividuals who have submitted formal applications ... for discharge based on conscientious objection will be retained in their units and assigned duties providing the minimum practicable conflict with their asserted beliefs pending a final decision on their applications. In the case of trainees, this means that they will not be required to train in the study, use, or handling of arms or weapons. . . .” See Army Regulation No. 635-20, ¶3: “a. Consideration will be given to requests for separation based on bona fide conscientious objection to participation in war, in any form, when such objection develops subsequent to entry into the military service. “b. Federal courts have held that a claim to exemption from military service under Selective Service laws must be interposed prior to notice of induction, and failure to make timely claim for exemption constitutes waiver of the right to claim. . . . Requests for discharge after entering military service will not be favorably considered when— “(1) Based on conscientious objection which existed, but which was not claimed prior to notice of induction, enlistment or appointment.” See also Department of Defense Directive No. 1300.6, § IV B 2. “You also asked whether the Army allows a soldier to file for discharge in instances where his conscientious objector views are fixed after notice of induction but prior to entry into the military service. Present practice grants the soldier the opportunity to file in such cases.” The letter additionally explains the composition" }, { "docid": "21943718", "title": "", "text": "the question. Petitioner specifically requested his draft board to grant a classification limiting him to noncombatant service. And the Selective Service System would thus classify him today. On December 27, 1968, the Director of the Selective Service System stated that the subject “would be properly classified in Class I-A-O, as a conscientious objector, if he were being considered for classification under the Military Selective Service Act of 1968, at this time.” Where does this leave Private Healy? By seeking and receiving noncombatant status did he waive the right to claim 1-0 status after induction? IV Army Regulations (635-20 § 3(b)) provide for waiver of conscientious objector status under certain conditions. Failure of the inductee to make timely claim for exemption constitutes a waiver of the right when such classification was not sought prior to induction and where such status was claimed but was denied by the Selective Service System. Healy’s case does not fit into either class, for he not only claimed exemption as a conscientious objector but received such a classification. The Secretary of the Army based the refusal to discharge Petitioner as an 1-0 on the ground that the evidence showed no substantial change in his religious beliefs since he was classified as noncombatant. Respondents say that the “basis in fact” test must be applied to this finding. The trouble with this is that I know no basis in law for the contention. I am not aware of the legal source of the argument that the want of substantial change in religious belief after induction bars the serviceman from obtaining relief in the courts. There is nothing in the statute, the Regulations or in the decisional law which estops an inductee from claiming, in a proper case, full exemption despite his receiving an I-A-0 classification as requested. Respondents’ argument seems to be founded in waiver and is, I surmise, based upon AR 635-20 § 3 which states (as “Policy”) that “Consideration will be given to requests for separation based on bona fide conscientious objection to participation in war, in any form, when such objection develops subsequent to entry" }, { "docid": "7625396", "title": "", "text": "requires a substantial change in religious beliefs subsequent to classification as I-A-0 in order to present a valid claim for discharge on conscientious objector grounds. Army Regulation 635-20 § 3(a) provides that: Consideration will be given to requests for separation based on bona fide conscientious objection to participation in war, in any form, when such objection develops subsequent to entry into the active military service. This does not mean that the religious belief upon which the objection is based must manifest itself only subsequent to entry on active duty but rather, the objection itself must so manifest itself and not exist prior to entry on active duty. This conclusion is aptly illustrated in the subparagraph following the above quoted language where it is stated: [Cjlaims based on conscientious objection growing out of experiences prior to entering military service, but which did not become fixed until entry into the service, will be considered. A.R. 635-20 § 3(b) (emphasis supplied) That this was the circumstance in Private Healy’s case is clearly demonstrated by the evidence adduced in the court below. In treating the question of waiver, the district court noted that the Army will not accept nor consider requests for discharge “Based solely on conscientious objection which existed, but which was not claimed prior to induction” or “Based solely on conscientious objection claimed and denied by the Selective Service prior to induction.” A.R. 635-20 § 3(b) (1) and (2). The court properly concluded that Private Healy’s claim did not fit into either of the two abovementioned categories, for “[H]e not only claimed exemption as a conscientious objector but received such a classification.” 300 F.Supp. at 849. Appellants’ contention that the district court exceeded its scope of review is without merit. Implicit within the “no basis in fact” standard of review for military habeas corpus matters is the presupposition that the proper legal standard is applied; in this case, the applicable Army Regulations. The district court concluded that the Army’s basis for disapproving the petitioner’s application for discharge had no foundation in law, and ordered the petitioner discharged. No error appearing, the judgment" }, { "docid": "7625397", "title": "", "text": "the court below. In treating the question of waiver, the district court noted that the Army will not accept nor consider requests for discharge “Based solely on conscientious objection which existed, but which was not claimed prior to induction” or “Based solely on conscientious objection claimed and denied by the Selective Service prior to induction.” A.R. 635-20 § 3(b) (1) and (2). The court properly concluded that Private Healy’s claim did not fit into either of the two abovementioned categories, for “[H]e not only claimed exemption as a conscientious objector but received such a classification.” 300 F.Supp. at 849. Appellants’ contention that the district court exceeded its scope of review is without merit. Implicit within the “no basis in fact” standard of review for military habeas corpus matters is the presupposition that the proper legal standard is applied; in this case, the applicable Army Regulations. The district court concluded that the Army’s basis for disapproving the petitioner’s application for discharge had no foundation in law, and ordered the petitioner discharged. No error appearing, the judgment is affirmed. . 300 F.Supp. 843 (S.D.Ga.1969). . Pursuant to Rule 18 of the Rules of this court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the clerk to place the case on the Summary Calendar and to notify the parties in writing. See Huth v. Southern Pacific Company, 417 F.2d 526 (5th Cir. 1969) and Murphy v. Houma Well Service, 409 F.2d 804 (5th Cir. 1969). . “In class I-A-0 shall be placed every registrant who would have been classified in class I-A but for the fact that he has been found, by reason of religious training and belief, to be conscientiously opposed to combatant training and service in the armed forces.” 32 C.F.R. § 1622.11. . The sincerity of Private Healy’s beliefs was never questioned throughout the administrative process of reviewing his application for discharge. A complete statement of the petitioner’s religious training and beliefs appears in the opinion of the court below reported at 300 F.Supp. 843 (S.D.Ga.1969)." }, { "docid": "7625395", "title": "", "text": "sought and obtained a I-A-0 conscientious objector classification prior to induction. We do not feel that this difference, ipso facto, compels a different result. Both Pitcher and Healy entered the Army in the Medical Corps; both subsequently found that service in the medical corps was not compatible with their religious beliefs and training and both applied for discharge on conscientious objector grounds. The application for discharge of each was disapproved, but for different reasons. In Pitcher, the Army denied the request for discharge on the ground that Pitcher’s claim was based on a personal moral code and not upon religious beliefs. In the instant case, the Army’s denial of Healy’s request for discharge was based on the ground that there was no evidence to show a substantial change in his religious beliefs subsequent to his classification of I-A-0 as a non-combatant. However, as the court below recognized, the Army’s basis for denial of Healy’s request seems to be founded in waiver, for there is nothing in the Statute, the Regulations or the decisional law which requires a substantial change in religious beliefs subsequent to classification as I-A-0 in order to present a valid claim for discharge on conscientious objector grounds. Army Regulation 635-20 § 3(a) provides that: Consideration will be given to requests for separation based on bona fide conscientious objection to participation in war, in any form, when such objection develops subsequent to entry into the active military service. This does not mean that the religious belief upon which the objection is based must manifest itself only subsequent to entry on active duty but rather, the objection itself must so manifest itself and not exist prior to entry on active duty. This conclusion is aptly illustrated in the subparagraph following the above quoted language where it is stated: [Cjlaims based on conscientious objection growing out of experiences prior to entering military service, but which did not become fixed until entry into the service, will be considered. A.R. 635-20 § 3(b) (emphasis supplied) That this was the circumstance in Private Healy’s case is clearly demonstrated by the evidence adduced in" }, { "docid": "2767503", "title": "", "text": "decisions, as well as ours, Parisi may then bring that fact to the attention of the District Court. Affirmed. . Joseph Parisi was drafted on August 22, 1968. According to the inservice conscientious objector application he filed with the Army on May 22, 1969 (pursuant to Army Regulation (AR) 635-20), Parisi had doubts at the time of his induction about his feelings toward military service. However, his beliefs did not coalesce into conscientious objection until he was well down the road of basic training and initial duty assignment (psychological social work and counseling). His application, which was made prior to issuance of any order for redeployment to a combat station, also stated that his Army experiences to that point led him to the firm conviction that participation in any form of military activity conflicted irreconcilably with his Christian beliefs. The initial interviews mandated by AR 635-20 uniformly terminated in Parisi’s favor; the base Chaplain, the base psychiatrist, and the special hearing officer (as well as Parisi’s immediate supervisor) all attested to the sincerity and religious nature of Parisi’s conscientious objection to military service. According to the record, the Commander of the Army hospital at Parisi’s base as well as the Commanding General of his training center also recommended approval of the application, although they did not interview Parisi personally. However, Parisi’s immediate commanding officer, Captain Hubman, recommended disapproval, with the notation, “Consider application contrary to paragraph 3b (3) AR 635-20.” This paragraph provides that conscientious objector applications will not be favorably considered when: “(3) Based on essentially political, sociological, or philosophical views, or on a merely personal moral code.” Captain Hubman had not interviewed Parisi nor had he engaged in any conversations with Parisi about the latter’s religious beliefs and convictions. In November, 1969, the Department of the Army denied Parisi’s application. That office noted two reasons for its decision : (I) that Parisi’s professed beliefs became fixed prior to entering the service, and (2) that Parisi was not truly opposed to all war due to his religious beliefs, as demonstrated by his attempts thus far to support it. Parisi" } ]

[ { "docid": "9568454", "title": "", "text": "'his wife on a community basis. The District Court, in rendering its •decision, was fully aware of the decision of the Supreme Court of the United States in the case of Commissioner of Int. Rev. v. Culbertson, 1949, 337 U.S. 733, 69 S.Ct. 1210,93 L.Ed. 1659, clarifying the principles developed in Commissioner of Int. Rev. v. Tower, 1946, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670, and Lusthaus v. Commissioner, 1946, 327 U.S. 293, 66 S.Ct. 539, 90 L.Ed. 679, wherein it was established as a primary test of reality of a family partnership for income tax purposes whether “the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise.” 337 U.S. at page 742, 69 S.Ct. at page 1214. The Supreme Court further indicated the circumstances to be considered in determining tax validity: “ * * * the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent * * *.” 337 U.S. at page 742, 69 S.Ct. at page 1214. The determination of these questions is one of fact. See Harkness v. Commissioner, 9 Cir., 1952, 193 F.2d 655, 658, certiorari denied, 343 U.S. 945, 72 S.Ct. 1040. The District Court, upon examination of all.these circumstances, as required by the rule laid down in the Culbertson case, expressly found that the parties in this case did not in good faith intend to join together in the present conduct of the business enterprise. In doing so the District Court had before it the following facts. On November 20, 1942, appellant and his wife created separate trusts for their two minor children by paying $21,000 to the Beverly Hills National Bank and Trust Company, as trustee, under the terms of a trust instrument providing that all funds were to be accumulated and no distribution made until" } ]

[ { "docid": "12958797", "title": "", "text": "remaining liquid assets exercisable by the petitioner. This factor, of course, is an important one in the consideration of whether or not a partnership truly exists; but if it is concluded that an arrangement amounts to a partnership for tax purposes, the means used to achieve the partnership purposes cannot have the effect of excluding a valid partnership claim for deduction. Therefore, the Tax Court is directed to reconsider its opinion in the light of the test set forth by the Supreme Court in the Culbertson case, supra, 337 U.S. 733 at page 742, 69 S.Ct. 1210, at page 1214: “The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case, [Commissioner of Internal Revenue v. Tower, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670], but whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise.” The Tax Court did not examine this issue and merely applied the reasoning that the partners settled accounts as to the securities in 1951, leaving only the real estate as proper partnership property. But the 1939 Internal Revenue Code, applicable here, does not provide for a constructive distribution of capital, as it does income, even as to a partnership in the process of liquidation. Since Section 187 of the 1939 Code, 26 U.S.C.A. § 187, provides for the filing of partnership returns and permits the computation of gain and loss generally on the same basis as an individual, the courts have long and consistently held that the partnership is an entity, requiring separate accounting, owning separate assets, and owing separate obligations for tax purposes" }, { "docid": "7096086", "title": "", "text": "protect his wife and daughter against losses, a purpose which is inconsistent with the contention that the agreement was a mere sham. The Tax Court also concluded that “petitioner’s [sic] attempt to claim the corporation losses as his own was a plan for improper tax avoidance.” Insofar as this conclusion indicates that the Tax Court based its decision upon a consideration of whether the petitioners entered into “the profit and loss arrangements” in order to minimize their taxes, we hold that the conclusion was irrelevant to the issues before it. For the reasons stated in Judge Medina’s opinion in Gilbert v. Commissioner, 2 Cir., 248 F.2d 399, we hold that determination of whether the profit and loss arrangements were effective to minimize the petitioners’ taxes depends upon whether those agreements effected any economic consequences in the business conducted by Oxford, and does not depend upon the results of an inquiry into the motives of the petitioners. Determination of whether petitioners can claim as a deduction the losses sustained between 1948 and 1950 depends upon whether the agreements of 1948 and 1949 created a “joint venture” between Oxford and them. A “joint venture” is, for tax purposes, equivalent to a partnership. Section 3797(a) (2), Internal Revenue Code of 1939, 26 U.S.C. § 3797(a) (2). A family partnership is recognized for tax purposes if “the partners joined together in good faith to conduct a business * * Commissioner of Internal Revenue v. Culbertson, 1949, 337 U.S. 733, at pages 744-745, 69 S.Ct. 1210, at page 1215, 93 L.Ed. 1659. In Culbertson, as in the present case, the existence of the business antedated the formation of the partnership. But in that case there was no doubt that a change had occurred in the conduct of the business. The control of the enterprise had changed hands. That fact distinguishes Culbertson from this case, for here the control of the enterprise did not change hands. For many years, petitioners made substantial advances to Oxford. Mr. Haas always controlled the policies to Oxford and devoted his time and effort to its management. The agreements entered into" }, { "docid": "7126094", "title": "", "text": "do for them whatever was necessary in connection with the firm business. But the principles and concepts which the courts must apply in the application of the federal income tax law are not governed by State criteria. United States v. Kintner, 9 Cir., 216 F.2d 418, 424; Commissioner of Internal Revenue v. Linde, 9 Cir., 213 F.2d 1, 7. The question here is whether there was in truth and in reality the sale of a capital asset within the meaning of the federal tax laws. What the Tax Court has held is, in short, that there was really a dissolution of a partnership under the guise of a sale. In the Hatch case, supra, this court, while holding the proviso contained in the General Counsel’s Memorandum, above referred to, not applicable to the facts in that case, nevertheless stated that “we agree with the statement of the Commissioner”. That proviso and the holding of the Tax Court here, are but an application of the principle that the incidence of taxation depends upon the substance and not the form of a transaction. Thus in the determination of whether a partnership exists for tax purposes, the question is whether “the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise.” Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 742, 69 S.Ct. 1210, 1214, 93 L.Ed. 1659. An assignment by a husband to his wife of salary and fees to be earned by him, though valid in the State of California, does not serve to prevent the whole of the salary and fees from being taxed as income to the husband, for tax consequences cannot be attached to any “arrangement by which the fruits are attributed to a different tree from that on which they grew.” Lucas v. Earl, 281 U.S. 111, 115, 50 S.Ct. 241, 74 L.Ed. 731. Where the grantor of a trust remains in substance the owner of the trust corpus the income of the trust is taxable to him. Helvering v. Clifford, 309 U.S. 331, 60 S.Ct." }, { "docid": "11473302", "title": "", "text": "Internal Revenue v. Culbertson, 1949, 337 U.S. 733, 742, 69 S.Ct. 1210, 1214, 93 L.Ed. 1659: “The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case [Commissioner of Internal Revenue v. Tower, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670], but whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise. * * *\" The trial judge had, we think, pretty evidently read the Culbertson case before he gave his instructions here. We think also that he had looked at our opinion in Lamb v. Smith, 3 Cir., 1950,183 F.2d 938. In the latter case the situation was not unlike this one, where the taxpayer had paid his assessment and sought to get it back through the district court rather than trying to fight out his dispute before the tax court. The requirement that good faith is an essential part of the formation of such a family partnership runs all through the Culbertson opinion and the paragraph of the instruction complained of, even when torn out of context, puts to the jury the determination of the question of fact, described by the Supreme Court. Aside from the instructions the taxpayer alleges other errors in the course of the trial. One of these has to do with a difference of opinion which the trial judge had with Mrs. Maloney when she was on the witness stand. The taxpayer had granted to Mrs. Maloney and Maloney, Jr., undivided interests in the real estate upon which the tanning business owned by Maloney, Sr., and transferred to the partnership was carried on. Mrs." }, { "docid": "5359704", "title": "", "text": "law, it must be treated as a partnership for tax purposes. Appellants say that the mere fact that the two daughters contributed neither vital services nor original capital does not require a disregarding of the partnership in the imposition of income tax. It is true that in the Culbertson case the Tax Court was criticized for focusing its attention entirely upon concepts of “vital services” and “original capital” as the sole controlling tests without regard to the question of bona fide intent of the parties. The court stated that the true test to be applied was as follows: “The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case [Commissioner of Internal Revenue v. Tower, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670], but whether considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise:” 337 U.S. at page 742, 69 S.Ct. at page 1214. Particularly important was its further statement 337 U.S. at page 744, 69 S.Ct. at page 1215: “Unquestionably a court’s determination that the services contributed by a partner are not ‘vita! and that he has not participated in ‘management and control of the business’ or contributed ‘original capital’ has the effect of placing a heavy burden on the taxpayer to show the bona fide intent of the parties to join together as partners.” The language last quoted we think is controlling upon this appeal. The trial court has found that the daughters contributed no services; that they contributed no capital; and that they have not participated in the management or control of the business. The taxpayers therefore" }, { "docid": "12021791", "title": "", "text": "on an average of twice weekly. As to the business property, she suggested that it be constructed for a restaurant on the ground floor. She objected to the possible use of the second floor, and the possible tenancy was altered accordingly. From the foregoing analysis of the trust instruments, of the circumstances surrounding their creation, and of the operation under them, it is clear that these trusts were and are valid entities for income tax purposes. The Partnership. Practically the entire emphasis of respondent here is placed upon the partnership situation. Both the Tax Court and counsel for respondent treat the partnership as being a “family” partnership and subject to the sharp scrutiny such a partnership invites in income tax matters. The legal básís of the Tax Court determination is the tests (as construed by the Tax Court) of the cases of Commissioner of Internal Revenue v. Tower, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670, 164 A.L.R. 1135 and Lusthaus v. Commissioner, 327 U.S. 293, 66 S.Ct. 539, 90 L.Ed. 679 in considering family partnerships. Removing the undue “emphasis” placed upon the test as set out in these two cases, Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 742, 69 S.Ct. 1210, 1214, 93 L.Ed. 1659 stated the rule to be “whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise.” While this rule. was announced in a “family” partnership case, yet it equally is applicable to partnership cases in general. It is the test here where the partnership is not a family partnership. The determinative inquiry is as to the good faith intent of the parties to combine for a business purpose. The creation" }, { "docid": "16470857", "title": "", "text": "by allowing PB, through its membership interest in HBH, to receive the HRTCs generated by the East Hall renovation. He characterizes the transaction as an impermissible “indirect sale of the [HRTCs] to a taxable entity.... by means of a purported partnership between the seller of the credits, [NJSEA], and the purchaser, [PB].” (Appellant’s Opening Br. at 30.) While the Commissioner raises several arguments in his effort to reallocate the HRTCs from NJSEA to PB, we focus primarily on his contention that PB should not be treated as a bona fide partner in HBH because PB did not have a meaningful stake in the success or failure of the partnership. We agree that PB was not a bona fide partner in HBH. A. The Test A partnership exists when, as the Supreme Court said in Commissioner v. Culbertson, two or more “parties in good faith and acting with a business purpose intend[] to join together in the present conduct of the enterprise.” 337 U.S. at 742, 69 S.Ct. 1210; see also Comm’r v. Tower, 327 U.S. 280, 286-87, 66 S.Ct. 532, 90 L.Ed. 670 (1946) (<rWhen the existence of an alleged partnership arrangement is challenged by outsiders, the question arises whether the partners really and truly intended to join together for the purpose of carrying on business and sharing in the profits or losses or both.”); Southgate Master Fund, L.L.C. ex rel. Montgomery Capital Advisors v. United States, 659 F.3d 466, 488 (5th Cir.2011) (“The sine qua non of a partnership is an intent to join together for the purpose of sharing in the profits and losses of a genuine business.”). The Culbertson test is used to analyze the bona tides of a partnership and to decide whether a party’s “interest was a bona fide equity partnership participation.” TIFD III-E, Inc. v. United States, 459 F.3d 220, 232 (2d Cir.2006) (hereinafter “Castle Harbour”). To determine, under Culbertson, whether PB was a bona fide partner in HBH, we must consider the totality of the circumstances, considering all the facts — the agreement, the conduct of the parties in execution of its provisions," }, { "docid": "5359703", "title": "", "text": "had died. Since the whole enterprise thus centered about his personal services and his peculiar familiarity with the business, it is hard to perceive any business purpose in the formation of a purported partnership or any reason for making the so-called partnership agreemenis except as a scheme for the assignment of income derived from Wisdom’s personal services. Appellants, on the other hand, urge that the decisions relating to assignment of income are not applicable here. Their contention is that the parties, parents and daughters, entered into an arrangement which meets the requirements of the law of California for the creation of a valid partnership; that the fact that by mutual consent the income of the business was divided between the four of them, sufficiently shows that under local law there was in fací a partnership; and they contend that the substance of the holding in Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 69 S.Ct. 1210, 93 L.Ed. 1659, is that if a partnership is real in that it meets the standards of local law, it must be treated as a partnership for tax purposes. Appellants say that the mere fact that the two daughters contributed neither vital services nor original capital does not require a disregarding of the partnership in the imposition of income tax. It is true that in the Culbertson case the Tax Court was criticized for focusing its attention entirely upon concepts of “vital services” and “original capital” as the sole controlling tests without regard to the question of bona fide intent of the parties. The court stated that the true test to be applied was as follows: “The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case [Commissioner of Internal Revenue v. Tower, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670], but whether considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities" }, { "docid": "11473301", "title": "", "text": "senior Maloney after the partnership agreement was drawn up as it was before. That issue was the one to which the court’s instruction was directed. Read with that in mind there was nothing misleading about it even though one may raise a question as to a particular word when the paragraph is lifted out of its context and removed from the background of this case. A third objection made by the taxpayer has to do with motive. The judge charged: “In order to prevail, the plaintiff must establish to your satisfaction that this was a bona fide partnership for the purpose of jointly carrying on the business because of the contributions of capital and services by the partners and that it was not primarily established for tax avoidance or tax reduction purposes as a means of channeling the taxpayer’s income to the members of his family without paying their taxes, the plaintiff would ordinarily have to pay on it.” We think the objection is answered by an excerpt from the court’s opinion in Commissioner of Internal Revenue v. Culbertson, 1949, 337 U.S. 733, 742, 69 S.Ct. 1210, 1214, 93 L.Ed. 1659: “The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case [Commissioner of Internal Revenue v. Tower, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670], but whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise. * * *\" The trial judge had, we think, pretty evidently read the Culbertson case before he gave his instructions here. We think also that he had looked at our opinion in Lamb" }, { "docid": "16991558", "title": "", "text": "respect to the Norfolk-Portsmouth project, or merely an employee of the partnership of Harland Bartholomew & Associates, was a question of fact for the determination of the Tax Court. This is clearly indicated by the decisions of the Supreme Court in Commissioner of Internal Revenue v. Tower, 327 U.S. 280, 287, 66 S.Ct. 532, 90 L.Ed. 670, and Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 69 S.Ct. 1210, 93 L.Ed. 1659. In the latter case at pages 742, 743 of 337 U.S., at page 1214 of 69 S.Ct., the Supreme Court said: “The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case, but whether, considering all the facts —the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise. There is nothing new or particu larly difficult about such a test. Triers of fact are constantly called upon to determine the intent with which a person acted. * * * ” It cannot be said that, as a matter of law, Royer was or was not a “partner” with respect to the Norfolk-Portsmouth project. Apparently the Government, in requiring the partnership to engage a Virginia engineer as an associate in the performance of the work, contemplated that he should be something more than a mere employee; but that fact alone would not be of controlling significance. We know of no reason, however, why Royer could not be a “partner” unless he was also a “joint adventurer” with joint control, or why the fact that his relationship to Har-land Bartholomew & Associates was confined to the Norfolk-Portsmouth project would prevent his being a “partner” with respect" }, { "docid": "23024258", "title": "", "text": "contended during the trial that certain unincorporated business enterprises of the appellant were to be treated as sole proprietorships for tax purposes, while appellant contended that they were partnerships. The test for determining recognition of a partnership for federal income tax purposes is whether “the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise.” Commissioner of Internal Revenue v. Culbertson, 1949, 337 U.S. 733, 742, 69 S.Ct. 1210, 1214, 93 L.Ed. 1659. This question is one of fact. Toor v. Westover, 9 Cir., 1952, 200 F.2d 713; Harkness v. Commissioner, 9 Cir., 1951, 193 F.2d 655, certio-rari denied, 343 U.S. 945, 72 S.Ct. 1040, 96 L.Ed. 1349. There is substantial evidence to support the Government’s contention that the alleged partnerships should not be recognized for tax purposes. The record discloses, among other things, that the enterprises were financed by a single fund belonging to appellant, that appellant made the policy decisions, that the purported partners were not to acquire an interest in the assets of the business until appellant had withdrawn an amount equal to his original capital investment, that no profits were actually distributed during the years in question to persons other than appellant, and that in at least one instance a new partner entered the business without another partner knowing the terms. Two further contentions are made by appellant which pertain only to Counts Three and Four, the counts based upon the year 1945. (1) Appellant asserts that in computing closing net worth for the year 1945 the Government improperly included $15,-000 in markers or IOU’s as cash of the B-R Smoke Shoppe, one of appellant’s enterprises. Regardless of whether such markers should technically be treated as cash or accounts receivable, they were properly included as part of the assets of the business. Appellant can hardly rely upon the fact that the enterprise was engaged in the illegal business of bookmaking, and that therefore, under California law, the markers were unenforceable. It is obvious that appellant accepted markers as a substitute for cash from his customers" }, { "docid": "16555420", "title": "", "text": "in execution of its provisions.’ ” Commissioner v. Tower, 327 U.S. 280. Tn Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 69 S.Ct. 1210, 1214, 93 L.Ed. 1659, the Supreme Court gave further consideration to the family partnership problem and gave added emphasis to the thought that the intent of the parties is of very great if, indeed, not controlling importance. In the course of that opinion it is said: “The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case, but whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise. There is nothing new or particularly difficult about such a test. Triers of fact are constantly called upon to determine the intent with which a persoii acted.” In the instant case the Tax Court found as a fact from all the evidence and attending circumstances that “the petitioner and his wife did not form, or intend to form, a bona fide partnership to operate a news agency prior to or during 1943 and 1944.” The income here involved resulted from operating the news agency. The income arising from rentals of the Carberry Apartments was reported by petitioner’s wife. In the course of the Tax Court’s opinion it is observed that, “According to the evidence, the petitioner operated the news agency as his own individual business. His wife did render valuable assistance to him in the earlier years from about 1906 to 1924, but she has taken no active part in the business since that time. No partnership, agreement, was ever entered into and proof is lacking even of" }, { "docid": "9568453", "title": "", "text": "ORR, Circuit Judge. This is a family partnership case. These cases represent a phase in the history of income tax litigation which reflects the increasing efforts on the part of taxpayers to distribute the impact of taxation among members of a close family group without substantially altering control over the income, producing property and the attempts of Congress and the Commissioner of Internal Revenue to insure that income from property will be taxable to the substantial owner of that property and income from personal services will be taxable to the person rendering those services. The present appeal is taken from a determination by the District Court that a pártnership in which Mr. Toor, hereinafter referred to as appellant, was general part-; ner and the Beverly Hills National Bank and Trust Company, as trustee of two trusts, the limited partner, was not valid for income tax purposes during the years 1943, 1944 and 1945. It was held that the entire income of the business was properly assessed by the Commissioner of Internal Revenue to appellant and 'his wife on a community basis. The District Court, in rendering its •decision, was fully aware of the decision of the Supreme Court of the United States in the case of Commissioner of Int. Rev. v. Culbertson, 1949, 337 U.S. 733, 69 S.Ct. 1210,93 L.Ed. 1659, clarifying the principles developed in Commissioner of Int. Rev. v. Tower, 1946, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670, and Lusthaus v. Commissioner, 1946, 327 U.S. 293, 66 S.Ct. 539, 90 L.Ed. 679, wherein it was established as a primary test of reality of a family partnership for income tax purposes whether “the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise.” 337 U.S. at page 742, 69 S.Ct. at page 1214. The Supreme Court further indicated the circumstances to be considered in determining tax validity: “ * * * the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their" }, { "docid": "16555419", "title": "", "text": "the credibility of the witnesses. Rule 52, Federal Rules of Civil Procedure, 28 U.S.C.A.; United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746; Kohl v. Commissioner of Internal Revenue, 8 Cir., 170 F.2d 531. Whether for federal tax purposes a partnership exists depends upon the particular facts in each case. A taxpayer may not by the device of a purported partnership divide his income for the purpose of preventing having it all taxed to himself, and the family partnership is looked upon with suspicion and is subjected to special scrutiny to prevent tax avoidance. Recent decisions of the Supreme Court indicate that the vital question to be determined in these family partnership cases is whether “the partners really and truly intended to join together for the purpose of carrying on business and sharing in the profits or losses or both. And their intention in this respect is a question of fact, to be determined from testimony disclosed by their ‘agreement, considered as a whole, and by their conduct in execution of its provisions.’ ” Commissioner v. Tower, 327 U.S. 280. Tn Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 69 S.Ct. 1210, 1214, 93 L.Ed. 1659, the Supreme Court gave further consideration to the family partnership problem and gave added emphasis to the thought that the intent of the parties is of very great if, indeed, not controlling importance. In the course of that opinion it is said: “The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case, but whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together" }, { "docid": "11876873", "title": "", "text": "cases where the government challenges the existence of a partnership for tax purposes. In determining whether there was a true partnership for income tax purposes, the fact that there was no contribution of “original capital” or “vital services” is to be taken into consideration, but it is not conclusive. The test is: \" * * * whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in' the present conduct of the enterprise. * * * Triers of fact are constantly called upon to determine the intent with which a person acted. * * * If, upon a consideration of all the facts, it is found that the partners joined together in good faith to conduct a business, having agreed that the services or capital to be contributed presently by each is of such value to the partnership that the contributor should participate in the distribution of profits, that is sufficient.” Commissioner v. Culbertson, supra, 337 U.S. 741-745, 69 S.Ct. 1214 (emphasis supplied). The finding of fact that there is (or is not) a partnership by the trier of fact (Tax Court or jury) if supported by the evidence, is final. Davis v. Commissioner, 3 Cir., 1947, 161 F.2d 361. Since it is decisively determined that the validity of a partnership, at least for federal income tax purposes, is a question of fact, it follows that, on the evidence of the instant case, the matter should have gone to the jury. The latter was properly and adequately instructed upon the legal principles involved as dictated by the Supreme Court in the Culbertson decision. The learned trial judge wisely submitted interrogatories to the jury which pinpointed' the ultimate issues of the case. Finally, those issues of" }, { "docid": "9432275", "title": "", "text": "to the resolution of joint venture status. Beck Chemical Equipment Corp. v. Commissioner, 27 T.C. 840; Cleveland v. Commissioner, 4 Cir., 297 F.2d 169, 172; 6 Mertens, Law of Federal Income Taxation, § 35.05. The landmark cases setting forth what constitutes a valid partnership for federal income tax purposes are Commissioner of Internal Revenue v. Tower, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670, and Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 69 S.Ct. 1210, 93 L.Ed. 1659. They are cited and relied upon by all parties to this litigation. In Tower, the Court in upholding the Tax Court’s conclusion that a partnership had not been established, states: “When the existence of an alleged partnership arrangement is challenged by outsiders, the question arises whether the partners really and truly intended to join together for the purpose of carrying on business and sharing in the profits or losses or both. And their intention in this respect is a question of fact, to be determined from testimony •disclosed by their ‘agreement, considered as a whole, and by their conduct in execution of its provisions.’ ” 327 U.S. 286-287, 66 S.Ct. 535. The Court also rejects taxpayers’ contention that the partnership should be upheld because valid under state law, by stating: “The statutes of Congress designed to tax income actually earned because of the capital and efforts of each individual member of a joint enterprise are not to be frustrated by state laws which for state purposes prescribe the relations of the members to each other and to outsiders.” 327 U.S. 288, 66 S.Ct. 536. The Court in Culbertson reiterates the Tower intention test heretofore set out and emphasizes that the test is concerned specifically with intent rather ■than objective indicia, stating: “The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower •case, but whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the" }, { "docid": "11876869", "title": "", "text": "thereon for the payments made by the wife during 1946 on estimated income. The District Court, in accordance with the jury’s finding that there was a “real” partnership, concluded that the taxpayer was entitled to revoke the election to file the joint return for 1946; the tax actually owing, as determined by the District Court, was calculated as if the taxpayer had filed a separate return for 1946. It may be noted, parenthetically, that the Collector here attacks the propriety of the District Court’s action and asserts that in any event the taxpayer is taxable on 70 per cent of the partnership income for 1946 on the ground that his election to file a joint return for 1946 is binding and irrevocable under the law. Principally, the Collector contends that the taxpayer presented no substantial evidence upon the basis of which the jury could find that the taxpayer’s wife and daughters were partners for federal tax purposes and that the District Court should have accordingly directed a verdict in his favor. He asks a reversal of the District Court’s judgment with instructions to enter judgment in his favor. The crux of the Collector’s argument is that the taxpayer failed to sustain the burden of establishing, in accordance with Commissioner of Internal Revenue v. Culbertson, 1949, 337 U.S. 733, 69 S.Ct. 1210, 1214, 93 L.Ed. 1659, that “the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise.” The evidence in the instant case, says the Collector, establishes there was no change in the real economic position of the taxpayer; he retained control over the business; there was a mere paper reallocation of income among an intimate family group and the income itself was devoted to purposes which satisfied taxpayer’s natural desires. Lusthaus v. Commissioner, 1946, 327 U.S. 293, 66 S.Ct. 539, 90 L.Ed. 679; Helvering v. Clifford, 1940, 309 U.S. 331, 334, 60 S.Ct. 554, 84 L.Ed. 788; Commissioner of Internal Revenue v. Tower, 1946, 327 U.S. 280, 290-291, 66 S.Ct. 532, 90 L.Ed. 670, 164 A.L.R. 1135. In" }, { "docid": "5359706", "title": "", "text": "are under the heavy burden of showing the bona fide intent to join together as partners. The trial court has held that this burden has not been sustained and its holding in this respect cannot be said to be clearly erroneous. Wisdom’s real purpose was disclosed by portions of his letter quoted above in which he sought a rewriting of his individual contract with the Blatz Brewing Company “to make it easier for me” since “the Government seems to be very particular regarding income tax returns”. He insisted in his dealing with Blatz that after the contract was rewritten all commissions payable under the contract should be paid to him and none to the others of his family; there was no separate partnership bank account; all funds were deposited in the bank account of the two appellants who had sole authority to draw on them. The customers of the business were never notified of the existence of any partnership; the business continued to be carried on in the name of P. W. Wisdom; all valuable papers of the business were kept in the safe deposit box of the taxpayers. Substantial portions of the funds derived from the business were kept in savings accounts, and interest upon each was collected and retained solely by the taxpayers. All correspondence was carried on by Wisdom in his own name, always using the first personal pronoun, and with no reference to any other member of his family. We are of the opinion that there is wanting any ground on which to overturn the determination by the trial court that as a matter of fact the taxpayers have not sustained the burden placed upon them by the rule in the Culbertson case. See Harkness v. Commissioner of Internal Revenue, 9 Cir., 193 F.2d 655, certiorari denied 343 U.S. 945, 72 S.Ct. 1040, 96 L.Ed. 1349. The judgment is affirmed. . The court found: “During the years 1943 to 1945, neither Evelyn P. Wisdom nor either of the daughters performed any services to the business- nor participated in the management or control of said business. The" }, { "docid": "5360924", "title": "", "text": "it has been said, of clarifying the rules there stated the Supreme Court discussed and restated them at length in Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733, 69 S.Ct. 1210, 93 L.Ed. 1659. In the Tower case the Court said that the question whether the family partnership is real for income tax purposes depends upon “whether the partners really and truly intended to join together for the purpose of carrying on business and sharing in the profits or losses or both. And their intention in this respect is a question of fact, to be determined from testimony disclosed by their ‘agreement, considered as a whole, and by their conduct in execution of its provisions. (Citations.) We see no reason why this general rule should not apply in tax cases where the government challenges the existence of a partnership for tax purposes.” 327 U.S. at page 287, 66 S.Ct. at page 536, 90 L.Ed. 670. In the Culbertson case the rule so stated was “clarified” as follows: “The question is not whether the services or capital contributed by a partner are of sufficient importance to meet some objective standard supposedly established by the Tower case, but whether, considering all the facts — the agreement, the conduct of the parties in execution of its provisions, their statements, the testimony of disinterested persons, the relationship of the parties, their respective abilities and capital contributions, the actual control of income and the purposes for which it is used, and any other facts throwing light on their true intent — the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise.” 337 U.S. at page 742, 69 S.Ct. at page 1214, 93 L.Ed. 1659. A business partnership is a contractual relation at all times, not a mere afterthought for tax purposes. It is true in this case that the wife of plaintiff did contribute $691.61 to the original purchase price of the store in Rapid City, South Dakota, but she did not pretend at that time to be a partner in the" }, { "docid": "23024257", "title": "", "text": "S.Ct. 1511, 91 L.Ed. 1850; Stoppelli v. United States, supra. Judged by this standard, the motion for judgment of acquittal was properly denied in the present case. Appellant argues in his reply brief that even if there was sufficient evidence to show a tax deficiency there was no evidence of fraud. A state of mind can seldom be proved by direct evidence but must be inferred from all the circumstances. A wilful intent to evade income taxes may be inferred from such factors as appellant’s failure to' include a substantial amount of income on his and his wife’s tax returns, the failure to keep adequate books which would clearly reflect income, and the concealment of the ownership of property such as a safe deposit box, real estate interests, and business licenses. These factors, all present in the instant case, are but part of a general pattern of conduct engaged in by appellant from which the jury could infer the requisite intent. See Norwitt v. United States, 9 Cir., 1952, 195 F.2d 127, 132. The Government contended during the trial that certain unincorporated business enterprises of the appellant were to be treated as sole proprietorships for tax purposes, while appellant contended that they were partnerships. The test for determining recognition of a partnership for federal income tax purposes is whether “the parties in good faith and acting with a business purpose intended to join together in the present conduct of the enterprise.” Commissioner of Internal Revenue v. Culbertson, 1949, 337 U.S. 733, 742, 69 S.Ct. 1210, 1214, 93 L.Ed. 1659. This question is one of fact. Toor v. Westover, 9 Cir., 1952, 200 F.2d 713; Harkness v. Commissioner, 9 Cir., 1951, 193 F.2d 655, certio-rari denied, 343 U.S. 945, 72 S.Ct. 1040, 96 L.Ed. 1349. There is substantial evidence to support the Government’s contention that the alleged partnerships should not be recognized for tax purposes. The record discloses, among other things, that the enterprises were financed by a single fund belonging to appellant, that appellant made the policy decisions, that the purported partners were not to acquire an interest in the" } ]

[ { "docid": "135594", "title": "", "text": "JOHN E. MILLER, District Judge. The plaintiff filed this suit to recover from the defendant the sum of $8,592.52 with interest thereon for alleged over-payments to the defendant by plaintiff for services performed by defendant under certain contracts entered into by the defendant and the Veterans’ Administration. The plaintiff alleges that the overpayment by it to the defendant was made on certain false and fraudulent statements of defendant as -to the manner and method of the performance of the work provided for by the contracts. The defendant filed a motion to make the complaint more definite and certain and, on February 15, 1952, the court granted the motion in certain particulars not necessary to here enumerate. In accordance with the order of the court, the plaintiff filed an amendment to the complaint in - which it set forth specifically the various items upon which it seeks a recovery. To the amendment to the complaint the defendant filed his answer and counterclaim. Subsequent to the filing of the answer and counterclaim, the defendant filed amendment thereto in which he alleges that the -court has jurisdiction under Title 28 U.S.C.A. § 1346, to entertain the counterclaims alleged in Paragraphs 9 and 10 of the original answer and counterclaim. The plaintiff has now filed a motion to dismiss the counterclaims on the ground that the court is without jurisdiction to hear and determine them. “It is fundamental that - the United States cannot be sued without its permission, and that permission must be specifically granted- by Congress. It will not be implied. It is a deep-rooted principle in the - fabric of all English speaking countries that a.sovereign is immune from suits in its own courts.” North Dakota-Montana Wheat Growers’ Association v. United States, 8 Cir., 66 F.2d 573, 577, 92 A.L.R. 1484. In Nassau Smelting & Refining Works v. United States, 266 U.S. 101, 106, 45 S.Ct. 25, 69 L.Ed. 190, the Court said: “The objection to a suit against the United States is fundamental, whether it be in the form of an original action, or a set-off, or a counterclaim. Jurisdiction" } ]

[ { "docid": "20965321", "title": "", "text": "In fact, the Lender in this case accepted the completion agreement in writing. The validity and construction of contracts through which the United States is exercising its constitutional functions, their consequences on the rights and obligations of the parties and the titles or liens which they create or permit present questions of federal law not controlled by the laws of any state. United States v. Allegheny County, 322 U.S. 174, 182, 64 S.Ct. 908, 88 L.Ed. 1209; S. R. A., Inc. v. State of Minnesota, 327 U.S. 558, 564, 66 S.Ct. 749, 90 L.Ed. 851; United States v. Jones, 9 Cir., 1949, 176 F.2d 278. Defendant argues that under well established legal principles defendant cannot occupy the position of a fiduciary. Restatement of the Law, Trusts 2d, § 95; United States v. Waylyn Corp., D.C. D.Puerto Rico 1955, 130 F.Supp. 783, affirmed Waylyn Corp. v. United States, 1 Cir., 1956, 231 F.2d 544, certiorari denied 352 U.S. 827, 77 S.Ct. 40, 1 L.Ed.2d 49. Those authorities are not in point. Lender was delegated broad general pow'ers by the Congress to go forward with prefabricated housing and in particular with housing in Alaska. 15 U.S.C.A. § 603; 12 U.S.C.A. § 1749a; 12 U.S.C.A. § 1701g-2; Federal Housing Administration Region No. 4 v. Burr, 1939, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed. 724. If the United States Government, or any branch thereof, enters into a contract with an individual, natural or corporate, and does so in its private or business capacity and not as a sovereign, it submits itself to the same rules of law which govern the construction of contracts between individuals. S. R. A., Inc. v. State of Minnesota, supra; Reading Steel Casting Co. v. United States, 268 U.S. 186, 45 S.Ct. 469, 69 L.Ed. 907; Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434. In a case such as this, where the governmental agency is acting in a commercial field, with the full authority and consent of Congress, that agency should not be less amenable to the ordinary rules of law than would be" }, { "docid": "13896625", "title": "", "text": "upon which the government bases its action, does not enlarge the defendant’s rights to sue the government. The defendant’s counterclaim is not in the form of recoupment or set-off but rather an independent claim for affirmative relief. In the case of In re Monongahela Rye Liquors, 3 Cir., 1944, 141 F.2d 864, at page 869, the court said: “It is, of course, true that when the United States or a State institutes a suit, it thereby submits itself to the jurisdiction of the court, but, as to claims against the sovereign, the latter’s submission to a court’s jurisdiction, because of its suit, draws in only such adverse claims as have arisen out of the same transaction which gave rise to the sovereign’s suit. * * * A defendant’s right in such regard is one of recoupment.” The court then cites Bull v. United States, 1935, 295 U.S. 247, 55 S.Ct. 695, 79 L.Ed. 1421, for the proposition that recoupment is in the nature of a defense. See also United States v. Finn, 9 Cir., 1956, 239 F.2d 679, and In re Greenstreet, Inc., 7 Cir,, 1954, 209 F.2d 660 where at page 664 the court stated: “The postulate to be distilled from the cases is * * * that the United States, by initiating an action as a plaintiff, consents to the jurisdiction of the court to entertain any defensive plea including the right of set-off to the extent of the government’s claim, but does not thereby consent to an affirmative judgment on a counterclaim.” (Emphasis supplied.) The court also cited, inter alia, United States v. United States Fidelity & Guaranty Co., 1940, 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894, and United States v. Shaw, supra. See also: Waylyn Corporation v. United States, 1 Cir., 1956, 231 F.2d 544, certiorari denied 352 U.S. 827, 77 S.Ct. 40, 1 L.Ed.2d 49. The plaintiff’s motion to dismiss the defendant’s counterclaim will be granted. . Plaintiff does not contend that it is a holder in due course of the note. . “Question Involved”, plaintiff’s brief p. 2. . After argument the" }, { "docid": "3059268", "title": "", "text": "The third defense alleges that 1, on the same facts, the statute and regulations relied on in the complaint deprive defendants of their property without due process of law and take their property for public use without just compensation in violation of the Fifth Amendment to the Constitution. Thus, the first counterclaim proceeds upon the theory (a) that Regulation 1 of the administrator is invalid as in violation of the statute, and (b) that the statute is void as in violation of the Constitution and seeks a declaratory judgment to this effect. The Government asserts that the court has no jurisdiction over the subject matter of the counterclaim and that it must be dismissed for want of jurisdiction. It also urges that the counterclaim should be stricken for redundancy since it merely repeats matters of defense already fully and adequately raised by the first three defenses. It is fundamental that the United States cannot be sued without its consent. Panella v. United States, 2 Cir., 216 F.2d 622; Munro v. United States, 303 U.S. 36, 58 S.Ct. 421, 82 L. Ed. 633. This is equally true whether the claim is asserted in the form of an original action or as a counterclaim. United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; United States v. U.S. Fidelity & Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894; Nassau Smelting & Refining Works v. United States, 266 U.S. 101, 45 S.Ct. 25, 69 L.Ed. 190; Illinois Central R. Co. v. Public Utilities Commission, 245 U.S. 493, 38 S.Ct. 170, 62 L.Ed. 425; United States v. Patterson, 5 Cir., 206 F.2d 345, 348; United States v. Davidson, 5 Cir., 139 F.2d 908; United States v. Merchants Transfer & Storage Co., 9 Cir., 144 F.2d 324. Thus, the test is whether defendants could have maintained an original action for a declaratory judgment upon the allegations of the first counterclaim. In re Greenstreet, Inc., 7 Cir., 209 F.2d 660; United States v. Patterson, supra. The Declaratory Judgments Act, 28 U.S.C. §§ 2201-2202, under which suits for declaratory judgments in" }, { "docid": "3456279", "title": "", "text": "Thus, unless Congress has given its consent for the Government to be sued, the defendant’s counterclaim is barred by sovereign immunity. Let us then turn to the question of whether Congress has given its consent to sue in eases involving claims or counterclaims based on contracts and torts, like those in the present case. As far as the counterclaim sounding in tort is concerned, I note that it fails to state a claim for relief. See Rule 12(b)(6), Fed.R.Civ.P. The agencies of plaintiff, whose job it was to pass on defendant Buffalo’s supplemental loan application, were under no duty to defendant to act with haste. While it is not a laudable rule, he who deals with governmental agencies, at least as far as deliberate speed is concerned, deals at his own peril. Also, the tort counterclaim has no jurisdictional basis because it is not one of the torts from which Congress has removed the cloak of sovereign immunity. 28 U.S.C.A. § 2680(h) (1957); United States v. Silverton, 1 Cir., 1956, 200 F.2d 824; Waylyn Corporation v. United States, 1 Cir., 1956, 231 F.2d 544. Thus, defendant Buffalo’s tort counterclaim not only fails to state a claim for relief, but it also lacks a jurisdictional basis. If the plaintiff United States is suing and being sued in its own right (a question to be decided later in this opinion), the counterclaim sounding in tort will have to be dismissed. With reference to the counterclaim sounding in contract, I find that Congress has waived the Government’s cloak of sovereign immunity to the extent of an affirmative recovery not to exceed $10,000. See the Tucker Act, 28 U.S.C.A. § 1346(a)(2). While there is considerable authority to the effect that no affirmative recovery may be had in counterclaims against the United States, but only recoupment or offset (United States v. Double Bend Mfg. Co., D.C.S.D.N.Y.1953, 114 F.Supp. 750, 751; United States v. Nipissing Mines Co., 2 Cir., 1913, 206 F. 431; United States v. Joseph Behr & Sons, Inc., D.C.N.D.Ill.1953, 110 F.Supp. 286; United States v. Wissahickon Tool Works, Inc., D.C.S.D.N.Y.1949, 84 F.Supp. 896)," }, { "docid": "7751993", "title": "", "text": "and Paul Fortson, two of the eleven employees alleged in the complaint to be due unpaid wages under the Act, are indebted to the defendant in the respective amounts of $500 and $300, and prays judgment against Herman W. Easton and Paul Fortson in said amounts. Plaintiff contends that the court lacks jurisdiction over defendant’s counterclaim on three grounds: (1) the United States is the real party plaintiff in this action, and it has not given its consent to any counterclaim or set-off in actions brought under Section 16(c); (2) the counterclaim is a permissive counterclaim lacking independent grounds of federal jurisdiction; and (3) the counterclaim does not state a claim against an “opposing party” as required by the Federal Rules of Civil Procedure. The plaintiff brought this action in his official capacity as a federal official for the benefit of the United States and under the express provisions of a statute; it is therefore a suit by the United States. Inasmuch as the counterclaim seeks to reduce the amount claimed by the plaintiff, it is brought against the plaintiff, i. e. the United States. No suit, counterclaim or set-off may be brought against the United States without specific statutory consent. United States v. Shaw, 1940, 309 U.S. 495, 500, 501, 60 S.Ct. 659, 84 L.Ed. 888; United States v. United States Fidelity and Guaranty Co., 1940, 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894; Nassau Smelting & Refining Works v. United States, 1924, 266 U.S. 101, 45 S.Ct. 25, 69 L.Ed. 190; State of Kansas v. United States, 1907, 204 U.S. 331, 27 S.Ct. 388, 51 L.Ed. 510. For a counterclaim or set-off to be allowed against the United States, there must be a specific statute authorizing an original suit against the United States on the claim on which the counterclaim or set-off is predicated. Section 16(c) of the Fair Labor Standards Act does not authorize suits against the United States or counterclaims or set-offs in actions brought by the Secretary of Labor pursuant to that section. A judgment in this case would not bar the defendant from" }, { "docid": "5004931", "title": "", "text": "Wallace v. United States, 2 Cir. 1944, 142 F.2d 240. This accords with the view that notwithstanding the right to assert a counterclaim or cross-claim against any party to an action, Federal Rules of Civil Procedure, rule 13, 28 U. S.C.A. following section 723e, none can be asserted against the Government in any action which it institutes. See, United States v. Shaw, 1940, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; United States v. U. S. Fidelity Co., 1940, 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894; United States v. Merchants Transfer & Storage Co., 9 Cir.1944, 144 F.2d 324; and see my opinion in Bowles v. Crew, D.C.Cal.1945, 59 F.Supp. 809, in which I applied 'this principle to a suit brought by the Office of Price Administration and dismissed a cross-complaint attempted to be filed against them in the action. Moreno v. United States, 1 Cir. 1941, 120 F.2d 128, 130. The Harrisburg, 1886, 119 U.S. 199, 214, 7 S.Ct. 140, 147, 30 L.Ed. 358. Borchard, Government Responsibility in Tort, 34 Yale Law Journal, 1924, I, 129, 229 ; 36 Yale Law Journal, 1926, I, 757, 1039. And see, Hammond-Knowlton v. United States, 2 Cir.1941, 121 F.2d 192; Wallace v. United States, 2 Cir. 1944, 142 F.2d 240. See cases in Note 31. Federal Rules of Civil Procedure, Rule 21, 28 U.S.C.A. following section 723c. Federal Rules of Civil Procedure, Rule 21, 28 U.S.C.A. following section 723c." }, { "docid": "13892417", "title": "", "text": "an independent proceeding. As a general rule, it has been held that the Government’s immunity from certain types of claims applies whether the claim is asserted by way of an independent action or by way of a counterclaim. Nassau Smelting & Refining Works v. United States, 266 U.S. 101, 45 S.Ct. 25, 69 L.Ed. 190; United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; United States v. Merchants Transfer & Storage Co., 9 Cir., 144 F.2d 324; United States v. Silverton, 1 Cir., 200 F.2d 824; United States v. Patterson, 5 Cir., 206 F.2d 345; Waylyn Corporation v. United States, 1 Cir., 231 F.2d 544; and Mitchell v. Floyd Pappin & Son, D.C., 122 F.Supp. 755. The rule has been paraphrased to mean that no consent to be sued on a counterclaim, based on a cause of action from which it is otherwise immune, can be implied from the Government’s act of instituting a suit against the hypothetical counterclaimant. See, e.g., Waylyn Corporation v. United States, supra, 231 F.2d at page 547. It is well settled that the United States has retained its cloak of immunity from actions based on the wilful or negligent misrepresentations of its agents or servants. 28 U.S.C.A. § 2680(h); Clark v. United States, 9 Cir., 218 F.2d 446; Jones v. United States, 2 Cir., 207 F.2d 563. The counterclaim in this action falls within this prohibited class. Defendant contends that even though the United States has never consented to be sued on the. particular cause of action, which he alleges in his counterclaim, the counterclaim may stand where it is used for the purpose of defeating or diminishing the Government’s recovery, and not for the purpose of obtaining affirmative relief against the Government. Though there is language in United States v. Shaw, supra, which indicates that immunity may be waived to the extent that the counterclaim is used only as a “set-off,” the Court in that case later points out that even if the defendant were successful on his counterclaim, “The judgment should be limited to a dismissal' of the government’s" }, { "docid": "13896626", "title": "", "text": "239 F.2d 679, and In re Greenstreet, Inc., 7 Cir,, 1954, 209 F.2d 660 where at page 664 the court stated: “The postulate to be distilled from the cases is * * * that the United States, by initiating an action as a plaintiff, consents to the jurisdiction of the court to entertain any defensive plea including the right of set-off to the extent of the government’s claim, but does not thereby consent to an affirmative judgment on a counterclaim.” (Emphasis supplied.) The court also cited, inter alia, United States v. United States Fidelity & Guaranty Co., 1940, 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894, and United States v. Shaw, supra. See also: Waylyn Corporation v. United States, 1 Cir., 1956, 231 F.2d 544, certiorari denied 352 U.S. 827, 77 S.Ct. 40, 1 L.Ed.2d 49. The plaintiff’s motion to dismiss the defendant’s counterclaim will be granted. . Plaintiff does not contend that it is a holder in due course of the note. . “Question Involved”, plaintiff’s brief p. 2. . After argument the defendant submitted a paper over the signature of his attorney wherein he names one of the Reconstruction Finance Corporation’s agents with whom he dealt, and substitutes definite figures for expressions “very few” and “substantial number” which appear in the answer. The paper is not in affidavit form and is not to be considered by the court, 6 Moore’s Fed.Prac. § 46.11 (8), p. 2062, except, perhaps, as a statement of the facts which defendant expects to offer at trial as proof of his averments of fraud as is done in pre-trial conference." }, { "docid": "3456277", "title": "", "text": "representative capacity as assignee of the assets and liabilities of the now defunct Reconstruction Finance Corporation, hereinafter referred to as R. F. C. If the counterclaim of the defendant were, instead, a claim, the cases hold that the doctrine of sovereign immunity would bar the action. See United States v. Shaw, 1940, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; United States v. United States Fidelity & Guaranty Co., 1940, 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894; Nassau Smelting & Refining Co. v. United States, 1924, 266 U.S. 101, 45 S.Ct. 25, 69 L.Ed. 190. Query: Does this rule change when a party’s would-be claim is converted into a conterclaim by the sovereign’s initiative in filing suit? Permission to file both compulsory and permissive counterclaims is given in Rule 13(a) and 13(b), Fed.R.Civ. P. Rule 13(d), Fed.R.Civ.P., which reads as follows, deals with counterclaims against the United States: “These rules shall not be construed to enlarge beyond the limits now fixed by law the right to assert counterclaims or to claim credits against the United States or an officer or agency thereof.” The case law under Rule 13(d), Fed.R.Civ.P., is to the effect that the rule is to be interpreted literally in all types of actions. United States v. Finn, 9 Cir., 1956, 239 F.2d 679, 682. “ * * * As regards plaintiff’s immunity from suits to which Congress has not given plaintiff’s consent, and as regards jurisdiction of such suits, there is no distinction between counterclaims and original suits. Congress never gave plaintiff’s consent to the Finns’ counterclaim. “There is no merit in the contention that, by bringing this action, plaintiff gave its consent to the Finns’ counterclaim. This action was brought for plaintiff by its attorneys — the United States Attorney for the Southern District of California and two of his assistants. Plaintiff’s attorneys were not authorized to give its consent to the Finns’ counterclaim, nor did they attempt or pretend to do so. As indicated above, only Congress could have given such consent.” In accord United States v. Thompson, D.C.N.D.W.Va.1957, 150 F.Supp. 674." }, { "docid": "5004930", "title": "", "text": "v. Sherwood, 1941, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058. United States v. Sherwood, 1941, 312 U.S. 584, 591, 61 S.Ct. 767, 772, 85 L.Ed. 1058. Defense Supplies Corporation v. United States Lines, 2 Cir.1942, 148 F.2d 311. United States v. Clyde-Mallory Lines, 5 Cir., 1942, 127 F.2d 569, 571. World War Veterans’ Act, 1924, § 19, as amended, Chapter 849, 46 Stat. 992, 38 U.S.C.A. § 445. 28 U.S.C.A. § 724. Munro v. United States, 1938, 303 U.S. 36, 41, 58 S.Ct. 421, 423, 82 L.Ed. 633. As far back as 1878, and notwithstanding the provision of the Judiciary Act of 1789, which declared the laws of the State in trials at common law were to be regarded as rules of decision in the courts of the United States, the Supreme Court declined to bind the United States by a state statute of limitation in a suit which it brought against a superintendent of Indians Affairs in Minnesota. See United States v. Thompson, 1878, 98 U.S. 486, 25 L.Ed. 194. Wallace v. United States, 2 Cir. 1944, 142 F.2d 240. This accords with the view that notwithstanding the right to assert a counterclaim or cross-claim against any party to an action, Federal Rules of Civil Procedure, rule 13, 28 U. S.C.A. following section 723e, none can be asserted against the Government in any action which it institutes. See, United States v. Shaw, 1940, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; United States v. U. S. Fidelity Co., 1940, 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894; United States v. Merchants Transfer & Storage Co., 9 Cir.1944, 144 F.2d 324; and see my opinion in Bowles v. Crew, D.C.Cal.1945, 59 F.Supp. 809, in which I applied 'this principle to a suit brought by the Office of Price Administration and dismissed a cross-complaint attempted to be filed against them in the action. Moreno v. United States, 1 Cir. 1941, 120 F.2d 128, 130. The Harrisburg, 1886, 119 U.S. 199, 214, 7 S.Ct. 140, 147, 30 L.Ed. 358. Borchard, Government Responsibility in Tort, 34 Yale" }, { "docid": "18548249", "title": "", "text": "438; FLEA, 56 F.3d at 275. Likewise, officers and agents do not waive the government’s sovereign immunity from injunctive relief by instituting an action or asserting a claim in court. See United States v. Shaw, 309 U.S. 495, 499, 501-03, 60 S.Ct. 659, 660-61, 662, 84 L.Ed. 888 (1940); United States v. United States Fidelity & Guar. Co., 309 U.S. 506, 510-13, 60 S.Ct. 653, 655-57, 84 L.Ed. 894 (1940); see also United States v. Associated Air Transport, Inc., 256 F.2d 857, 862 (5th Cir.1958) (“[T]he United States does not waive its immunity from the imposition upon it of an injunction or other unauthorized remedy by coming into court with a claim or counter-claim.”); Patterson, 206 F.2d at 348 (“[I]t is now well settled that the United States does not waive its sovereign immunity by the institution of an action_”). In determining whether the United States is immune from “suit,” courts interpret the term “suit” broadly to include more than just an actual suit instituted against the United States. See Shaw, 309 U.S. at 503, 60 S.Ct. at 662 (“ ‘The objection to a suit against the United States is funda-mental, whether it be in the form of an original action or a set-off or a counterclaim.’ ”) (quoting Nassau Smelting & Refining Works v. United States, 266 U.S. 101, 106, 45 S.Ct. 25, 25, 69 L.Ed. 190 (1924)). Indeed, the United States’ immunity from “suit” extends not only to all types of injunc-tive process and relief, e.g., Naganab, 202 U.S. at 475-76, 26 S.Ct. at 667-68, but also to judicial process, Buchanan v. Alexander, 45 U.S. (4 How.) 20, 21, 11 L.Ed. 857 (1846) (disbursing agent of government not subject to writ of attachment sought by creditors of seaman serving on the frigate Constitution), and state statutory time-restraints, United States v. Summerlin, 310 U.S. 414, 416, 60 S.Ct. 1019, 1020, 84 L.Ed. 1283 (1940) (“It is well settled that the United States is not bound by state statutes of limitation or subject to the defense of laches in enforcing its rights.”); accord United States v. Thompson, 98 U.S. 486," }, { "docid": "3456276", "title": "", "text": "to dismiss against Buffalo. Prior to the determination of the genuine issue, which concerns defendant Buffalo’s counterclaim, supra, some preliminary aspects must be resolved. From a close scrutiny of the counterclaim, it appears readily divisible into two parts: a. Breach of contract based upon the orginal loan agreement. b. A tort action based upon negligence. The segment of the counterclaim based on the original loan contract is a compulsory counterclaim in that it arose out of the same transaction and occurrence that plaintiff’s claim arose from. See Rule 13(a), Fed.R.Civ.P,, 28 U.S.C.A. The segment of the counterclaim based on the negligence of certain government agencies in processing the defendant’s supplemental loan application is a permissive counterclaim in that it involves facts and circumstances independent of the facts and circumstances involved in plaintiff’s claim. See Rule 13(b), Fed.R.Civ.P. In deciding the question of the applicability of the doctrine of sovereign immunity let us assume initially that the United States is the real party in interest in this case and that it is not suing in its representative capacity as assignee of the assets and liabilities of the now defunct Reconstruction Finance Corporation, hereinafter referred to as R. F. C. If the counterclaim of the defendant were, instead, a claim, the cases hold that the doctrine of sovereign immunity would bar the action. See United States v. Shaw, 1940, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; United States v. United States Fidelity & Guaranty Co., 1940, 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894; Nassau Smelting & Refining Co. v. United States, 1924, 266 U.S. 101, 45 S.Ct. 25, 69 L.Ed. 190. Query: Does this rule change when a party’s would-be claim is converted into a conterclaim by the sovereign’s initiative in filing suit? Permission to file both compulsory and permissive counterclaims is given in Rule 13(a) and 13(b), Fed.R.Civ. P. Rule 13(d), Fed.R.Civ.P., which reads as follows, deals with counterclaims against the United States: “These rules shall not be construed to enlarge beyond the limits now fixed by law the right to assert counterclaims or to claim credits" }, { "docid": "390108", "title": "", "text": "that “the note, although purporting to bind him, was actually executed because he was assured that the corporation, the recipient of the funds under his note, had adequate collateral, and that he would never be held personally accountable. * * * Under the familiar accepted Texas principles, this parol evidence would not be admissible because it negates the very obligation of the writing.” See 3 Corbin, Contracts § 583 (1960); Restatement, Contracts §§ 23T, 240(1) (1932). . We emphasize again that we are discussing the Bank’s right alone. Whatever rights the Contractor or the Trustee in bankruptcy might have is in no way resolved here. See note 24, supra. . “Where not enforced by sale before the filing of a petition initiating a proceeding under this title, and except where the estate of the bankrupt is solvent: (1) though valid against the trustee under subdivision (b) of this section, statutory liens, including liens for taxes or debts owing to the United States or to any State or any subdivision thereof, on personal property not accompanied by possession of such property, * * * shall be postponed in payment of the debts specified in clauses (1) and (2) of subdivision (a) of section 104 of this title * * The provisions of 11 U.S.C.A. § 107 (c) have been substantially modified since the commencement of this litigation. See 11 U.S.C.A. § 107(c) (Supp.1966) ; Pub.L. 89-495, 80 Stat. 268 (July 5, 1966). . Contending that 11 U.S.C.A. § 46 is insufficient to invest jurisdiction, the Government cites: United States v. Shaw, 1940, 309 U.S. 495, 60 S.Ct. 659, 84 L. Ed. 888; United States v. United States Fid. & Guar. Co., 1940, 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894; Nassau Smelting & Refining Works v. United States, 1924, 266 U.S. 101, 45 S.Ct. 25, 69 L.Ed. 190; Banning v. United States, 9 Cir., 1958, , 259 F.2d 305; In re Greenstreet, Inc., 7 Cir., 1954, 209 F.2d 660. . We do, however, sustain it as to the tax levies, infra. . “31. That the funds referred to in Stipulations" }, { "docid": "390109", "title": "", "text": "by possession of such property, * * * shall be postponed in payment of the debts specified in clauses (1) and (2) of subdivision (a) of section 104 of this title * * The provisions of 11 U.S.C.A. § 107 (c) have been substantially modified since the commencement of this litigation. See 11 U.S.C.A. § 107(c) (Supp.1966) ; Pub.L. 89-495, 80 Stat. 268 (July 5, 1966). . Contending that 11 U.S.C.A. § 46 is insufficient to invest jurisdiction, the Government cites: United States v. Shaw, 1940, 309 U.S. 495, 60 S.Ct. 659, 84 L. Ed. 888; United States v. United States Fid. & Guar. Co., 1940, 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894; Nassau Smelting & Refining Works v. United States, 1924, 266 U.S. 101, 45 S.Ct. 25, 69 L.Ed. 190; Banning v. United States, 9 Cir., 1958, , 259 F.2d 305; In re Greenstreet, Inc., 7 Cir., 1954, 209 F.2d 660. . We do, however, sustain it as to the tax levies, infra. . “31. That the funds referred to in Stipulations 23, 24, 27 and 30 [the amounts paid by the Bank on tax levies, paid to the Government, ($38,480.41) and withdrawn by the Bank ($69,318.82) ] relate to statutory liens for taxes and for debts owing to the United States, and which said funds were in the “actual possession” of the Defendant Bank on February 28, 1962.” . The objectives of this legislation are well stated by Collier: “Notwithstanding the long established bankruptcy principle that valid liens should be enforceable in their entirety as against general, unsecured creditors and those entitled to priority the realization developed that state-created statutory liens, like state priorities to the extent they are recognized in bankruptcy run counter to the underlying objective of equitable distribution of the debtor’s assets among all his creditors. As a result of long inaction of tax authorities, liens for taxes which had accumulated over a number of years often consumed a very substantial portion of an estate and indeed the whole estate if not large. * * * This situation was further aggravated in the" }, { "docid": "375820", "title": "", "text": "States. Reversed and remanded. . See § 85-301 et seq., Code of Georgia; Parker v. Hughes, 25 Ga. 374; Calhoun v. Cawley, 104 Ga. 335, 30 S.E. 773. . Cf. Ballard v. W. T. Smith Lumber Co., 258 Ala. 436, 63 So.2d 376. . United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; United States v. U. S. Fidelity & Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894; Nassau Smelting Works v. United States, 266 U. S. 101, 45 S.Ct. 25, 69 L.Ed. 190; Illinois Central R. Co. v. Public Utilities Comm., 245 U.S. 493, 38 S.Ct. 170, 62 L.Ed. 425. . Belknap v. Schild, 161 U.S. 10, 17, 16 S.Ct. 443, 40 L.Ed. 599; United States v. McLemore, 4 How. 286, 11 L.Ed. 977; Hill v. United States, 9 How. 386, 13 L.Ed. 185; McAvoy v. United States, 2 Cir., 178 F.2d 353. Cf. Larson v. Domestic & Foreign Corp., 337 U.S. 682, 703, 69 S.Ct. 1457, 93 L.Ed. 1628. . See United States v. The Thekla, 266 U. S. 328, 45 S.Ct. 112, 69 L.Ed. 313; United States v. National City Bank of N. Y., 2 Cir., 83 F.2d 236; Mountain Copper Co. v. United States, 9 Cir., 142 F. 625; E. C. Shevlin Co. v. United States, 9 Cir., 146 F.2d 613, 615. . United States v. National City Bank of N. Y., supra, 83 F.2d at page 238. . United States v. Shaw, supra; United States v. Fidelity & Guaranty Co., supra; United States v. 9 Acres of Land, D.C. 100 F.Supp. 378, affirmed, Oyster Shell Products Co. v. U. S., 5 Cir., 197 F.2d 1022; United States v. Davidson, 5 Cir., 139 F.2d 908; United States v. Merchants Transfer & Storage Co., 9 Cir., 144 F.2d 324; United States v. Meyer, 7 Cir., 113 F.2d 387, 394; United States v. Ring Const. Corp., D.C., 96 F.Supp. 762; United States v. Lashlee, D.C., 105. F. Supp. 184; 3 Moore’s Federal Practice, 2d. Ed., § 13.28, p. 75. . 28 U.S.C.A. § 2412(a); Ewing v. Gardner, 341 U.S. 321, 71" }, { "docid": "3059269", "title": "", "text": "58 S.Ct. 421, 82 L. Ed. 633. This is equally true whether the claim is asserted in the form of an original action or as a counterclaim. United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; United States v. U.S. Fidelity & Guaranty Co., 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894; Nassau Smelting & Refining Works v. United States, 266 U.S. 101, 45 S.Ct. 25, 69 L.Ed. 190; Illinois Central R. Co. v. Public Utilities Commission, 245 U.S. 493, 38 S.Ct. 170, 62 L.Ed. 425; United States v. Patterson, 5 Cir., 206 F.2d 345, 348; United States v. Davidson, 5 Cir., 139 F.2d 908; United States v. Merchants Transfer & Storage Co., 9 Cir., 144 F.2d 324. Thus, the test is whether defendants could have maintained an original action for a declaratory judgment upon the allegations of the first counterclaim. In re Greenstreet, Inc., 7 Cir., 209 F.2d 660; United States v. Patterson, supra. The Declaratory Judgments Act, 28 U.S.C. §§ 2201-2202, under which suits for declaratory judgments in the Federal Courts must be brought, is essentially a procedural statute. Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 240, 57 S.Ct. 461, 81 L.Ed. 617, 108 A.L.R. 1000. It does not create new substantive rights but merely grants an additional remedy where jurisdiction already exists. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194. Neither by the Declaratory Judgments Act nor otherwise has the United States given its consent to be sued in an action of the character of this counterclaim. Stout v. United States, 2 Cir., 229 F.2d 918; Di Benedetto v. Morgenthau, 80 U.S.App.D.C. 34, 148 F.2d 223, petition for certiorari dismissed 326 U.S. 686, 66 S.Ct. 25, 90 L.Ed. 402; Love v. United States, 8 Cir., 108 F.2d 43, certiorari denied 309 U.S. 673, 60 S.Ct. 716, 84 L. Ed. 1018; Gibson v. United States, 6 Cir., 161 F.2d 973. Questions of the invalidity of regulations or the unconstitutionality of statutes may be raised against the Government by way of" }, { "docid": "6987707", "title": "", "text": "States not in excess of $10,000, founded upon any express or implied contract. Subdivision (c) of Section 1346 provides that the jurisdiction conferred “includes jurisdiction of any set-off, counterclaim, or other claim or demand whatever on the part of the United States against any plaintiff commencing an action under this section”. This section is limited to set-offs and counterclaims on the part of the Government. There is no reciprocal provision authorizing set-offs and counterclaims against the Government in actions in which the Government is the plaintiff. The courts in other circuits have held that this omission is immaterial and that Congress by the Tucker Act has waived the Government’s sovereign immunity to the extent of an affirmative recovery up to $10,000, and that for this purpose there is no distinction between a counterclaim and an original suit. United States v. Springfield, 5 Cir., 1960, 276 F.2d 798; United States v. Silverton, 1 Cir., 1952, 200 F.2d 824; United States v. Buffalo Coal Mining Co., D.C.Alaska, 1959, 170 F.Supp. 727; see National City Bank of New York v. Republic of China, 1955, 348 U.S. 356, 359, 75 S.Ct. 423, 99 L.Ed. 389. In this circuit, however, the rule is firmly established that under the Tucker Act no affirmative recovery may be had by means of a counterclaim against the Government, and that the only relief against the Government by means of a counterclaim is in the nature of recoupment or set-off. United States v. Nipissing Mines Co., 2 Cir., 1913, 206 F. 431; United States v. Carey Terminal Corp., E.D.N.Y., 1962, 209 F.Supp. 385; United States v. Frank, S.D.N.Y., 1962, 207 F.Supp. 216; United States v. Anasae International Corp., S.D.N.Y., 1961, 197 F.Supp. 926; United States v. Double Bend Mfg. Co., S.D.N.Y., 1953, 114 F.Supp. 750, 751; United States v. Wissahickon Tool Works, Inc., S.D.N.Y., 1949, 84 F.Supp. 896, affirmed, 2 Cir., 1952, 200 F.2d 936; see also United States v. United States Fidelity & Guaranty Co., 1940, 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894; United States v. Shaw, 1940, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888;" }, { "docid": "6987708", "title": "", "text": "York v. Republic of China, 1955, 348 U.S. 356, 359, 75 S.Ct. 423, 99 L.Ed. 389. In this circuit, however, the rule is firmly established that under the Tucker Act no affirmative recovery may be had by means of a counterclaim against the Government, and that the only relief against the Government by means of a counterclaim is in the nature of recoupment or set-off. United States v. Nipissing Mines Co., 2 Cir., 1913, 206 F. 431; United States v. Carey Terminal Corp., E.D.N.Y., 1962, 209 F.Supp. 385; United States v. Frank, S.D.N.Y., 1962, 207 F.Supp. 216; United States v. Anasae International Corp., S.D.N.Y., 1961, 197 F.Supp. 926; United States v. Double Bend Mfg. Co., S.D.N.Y., 1953, 114 F.Supp. 750, 751; United States v. Wissahickon Tool Works, Inc., S.D.N.Y., 1949, 84 F.Supp. 896, affirmed, 2 Cir., 1952, 200 F.2d 936; see also United States v. United States Fidelity & Guaranty Co., 1940, 309 U.S. 506, 60 S.Ct. 653, 84 L.Ed. 894; United States v. Shaw, 1940, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; United States v. Joseph Behr & Sons, Inc., N.D.Ill., 1953, 110 F.Supp. 286. Defendant suggests that the time has come to depart from this rule, asserting that the result is not required by the wording of the Tucker Act as demonstrated by the reasons given in support of the decisions in the other circuits. Considering the modem trend and attitude away from the doctrine of sovereign immunity whenever permissible, and the anomalous situation created under Rule 13, Fed.Rules Civ.Proc., 28 U.S.C.A., whenever a compulsory counterclaim is involved, cf., United States v. Thompson, N.D.W.Va., 1957, 150 F.Supp. 674, this Court would be inclined to agree. See United States v. Buffalo Coal Mining Co., supra; National City Bank of New York v. Republic of China, supra. It appears wholly unrealistic to compel the defendant under such circumstances to institute a separate and distinct suit for the amount of the counterclaim. But it is not for this Court to decide when a departure should be made from a rule long established in this circuit by the appellate court." }, { "docid": "13892416", "title": "", "text": "HALBERT, District Judge. In this action plaintiff seeks to recover for the damages to its property resulting from an alleged trespass and the wrongful taking of timber by the defendants. Defendant, Van Meter (hereinafter in this opinion referred to as “defendant”), has filed a counterclaim against plaintiff alleging that the timber was taken in reliance on wilful and negligent misrepresentations by an agent and servant of plaintiff. Two motions are presently before the Court in this case. Plaintiff has filed a motion to dismiss the counterclaim, and defendant has filed a motion to amend his counterclaim by adding an allegation that the claim has previously been presented to the General Accounting office and the Controller General of the United States and has been denied. The motion to dismiss presents the question of whether a defendant in an action instituted by the United States may assert a cause of action against the United States by way of counterclaim, when the sovereign immunity of the United States would bar such an action if it were commenced in an independent proceeding. As a general rule, it has been held that the Government’s immunity from certain types of claims applies whether the claim is asserted by way of an independent action or by way of a counterclaim. Nassau Smelting & Refining Works v. United States, 266 U.S. 101, 45 S.Ct. 25, 69 L.Ed. 190; United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; United States v. Merchants Transfer & Storage Co., 9 Cir., 144 F.2d 324; United States v. Silverton, 1 Cir., 200 F.2d 824; United States v. Patterson, 5 Cir., 206 F.2d 345; Waylyn Corporation v. United States, 1 Cir., 231 F.2d 544; and Mitchell v. Floyd Pappin & Son, D.C., 122 F.Supp. 755. The rule has been paraphrased to mean that no consent to be sued on a counterclaim, based on a cause of action from which it is otherwise immune, can be implied from the Government’s act of instituting a suit against the hypothetical counterclaimant. See, e.g., Waylyn Corporation v. United States, supra, 231 F.2d at page" }, { "docid": "18548250", "title": "", "text": "60 S.Ct. at 662 (“ ‘The objection to a suit against the United States is funda-mental, whether it be in the form of an original action or a set-off or a counterclaim.’ ”) (quoting Nassau Smelting & Refining Works v. United States, 266 U.S. 101, 106, 45 S.Ct. 25, 25, 69 L.Ed. 190 (1924)). Indeed, the United States’ immunity from “suit” extends not only to all types of injunc-tive process and relief, e.g., Naganab, 202 U.S. at 475-76, 26 S.Ct. at 667-68, but also to judicial process, Buchanan v. Alexander, 45 U.S. (4 How.) 20, 21, 11 L.Ed. 857 (1846) (disbursing agent of government not subject to writ of attachment sought by creditors of seaman serving on the frigate Constitution), and state statutory time-restraints, United States v. Summerlin, 310 U.S. 414, 416, 60 S.Ct. 1019, 1020, 84 L.Ed. 1283 (1940) (“It is well settled that the United States is not bound by state statutes of limitation or subject to the defense of laches in enforcing its rights.”); accord United States v. Thompson, 98 U.S. 486, 488-89, 25 L.Ed. 194 (1878); United States v. Hato Rey Bldg. Co., Inc., 886 F.2d 448, 450 (1st Cir.1989) (noting the “maxim nullum tempus occurrit regi (time does not run against the King)”). Thus, the term “suit” embodies the broad principle that the government is not subject to “legal proceedings, at law or in equity” or “judicial process” without its consent. Belknap v. Schild, 161 U.S. 10, 16, 16 S.Ct. 443, 445, 40 L.Ed. 599 (1896). Interpreting the term “suit” broadly comports with the core notion of sovereign immunity that in the absence of governmental consent, the courts lack jurisdiction to “restrain the government from acting, or to compel it to act.” Larson, 337 U.S. at 704, 69 S.Ct. at 1468. B. The Supreme Court promulgated Rules 401 and 601 pursuant to congressionally delegated authority in 28 U.S.C. § 2075. See 28 U.S.C. § 2075 (granting Supreme Court authority to promulgate bankruptcy rules); In re Williams, 422 F.Supp. 342, 344 (N.D.Ga.1976) (former bankruptcy rules promulgated by Supreme Court pursuant to 28 U.S.C. § 2075). The" } ]

[ { "docid": "6625199", "title": "", "text": "THE TILA, JUSTIFYING THE DEBTOR’S RESCISSION OF THE AGREEMENT AND TRIGGERING ELIMINATION OF CREDITHRIFT’S SECURED CLAIM AND RIGHT TO ITS COLLECTION OF ANY FINANCE CHARGES; AND RENDERING IT LIABLE FOR A STATUTORY PENALTY FOR REFUSING TO HONOR THE DEBTOR’S VALID RESCISSION THEREOF AND FOR THE DEBTOR’S ATTORNEYS’ FEES IN PROSECUTING THIS MATTER. Credithrift’s failure to include the assignment recording fee in the finance charge in the Agreement puts into motion consequences which can only be described as disastrous to it. As a direct result, the disclosure of the finance charge itself is $25 too low, a violation of 15 U.S.C. § 1638(a)(3) and 12 C.F.R. § 226.18(d). Since the finance charge on which it is calculated is understated, the annual percentage rate of the finance charge is also understated, in violation of 15 U.S.C. § 1638(a)(4) and 12 C.F.R. § 226.18(e). Less obvious is the fact that the “amount financed” is also incorrect, since it includes the $25 charge which should be part of the finance charge. This figure should actually be $3,330, not $3,355. The failure to accurately disclose this figure is violative of 15 U.S.C. § 1638(a)(2) and 12 C.F.R. § 226.18(b). Pursuant to 15 U.S.C. §§ 1635(a), (f), and 12 C.F.R. § 226.23(a)(3), the failure of a creditor to accurately provide “material disclosures” required by the TILA authorizes the consumer to rescind the transaction at any time within three years from its consummation. See, e.g., In re Tucker, 74 B.R. 923, 929-30 (Bankr.E.D.Pa.1987). The term “material disclosures” includes disclosure of the annual percentage rate, the amount of the finance charge, the amount to be financed, and the balance upon which a finance charge will be imposed. 15 U.S.C. § 1602(u). The disclosure of all of these terms is erroneous here due to the misplacement of the $25 assignment recording fee. Since multiple “material disclosure” violations occurred in the preparation of the Agreement, the Debtor’s dispatch of the rescission letter within three years from the execution of same was effective to timely rescind the Agreement. The consequences of an effective rescission, which the creditor refuses to acknowledge or" } ]

[ { "docid": "6764435", "title": "", "text": "disclosed by the bank pursuant to TILA. a) The Assignment Fee is Not Part of the Finance Charge of the Mortgage Among the disclosures required by TILA are the three elements of a credit transaction: the amount financed, the finance charge, and the annual percentage rate. See 15 U.S.C. § 1638. TILA and Regulation Z define the finance charge as “the sum of all charges, payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit.” 15 U.S.C. § 1605(a); see also 12 C.F.R. § 226.4(a) (the finance charge includes charges imposed “as an incident to or a condition of the extension of credit.”). Examples of charges included in the finance charge are: interest on the loan, service or carrying charges, loan fees, finder’s fees, fees for an investigation or credit report, or other charges for any guarantee or insurance that protects the creditor against the obli-gor’s default or other credit loss. See 15 U.S.C. § 1605(a). To determine whether a charge is a part of the finance charge, a court must determine whether the charge is incident to, or a condition of, the extension of credit. See Stutman v. Chemical Bank, No. 94 Civ. 5013, 1996 WL 539845, at *3 (S.D.N.Y. Sept.24, 1996) (citing Veale v. Citibank, 85 F.3d 577, 579 (11th Cir.1996); Berryhill v. Rich Plan of Pensacola, 578 F.2d 1092, 1099 (5th Cir.1978) (“The important question is whether the seller refuses to extend credit until the customer agrees to another charge.”)). The .875% assignment fee in this action is not part of the finance charge as defined by TILA and Regulation Z. The .875% fee was not imposed incident to, or as a condition of, the extension of plaintiffs’ loan. Instead, the fee was imposed more than four years after defendant issued the loan and there is no evidence that defendant would not have provided the loan without a guarantee that plaintiffs would pay this fee. See Stutman, 1996 WL 539845, at *3 ($275 document transfer fee assessed in" }, { "docid": "6764434", "title": "", "text": "is remedial in nature, its terms must be construed in liberal fashion if the underlying Congressional purpose is to be effectuated. N.C. Freed Co., Inc. v. Board of Governors of the Fed. Reserve Sys., 473 F.2d 1210, 1214 (2d Cir.1973). See also Inge v. Rock Financial Corp., 281 F.3d 613, 621 (6th Cir.2002); Fairley v. Turan-Foley Imports, Inc. 65 F.3d 475, 479 (5th Cir.1995); Jackson v. Grant, 890 F.2d 118, 120 (9th Cir.1989). The sole federal claim here is that Astoria Federal violated TILA and its implementing Regulation Z, 12 C.F.R. § 12 (1996), promulgated thereunder by the Federal Reserve Bank. Plaintiffs assert two violations of TILA: First, that the .875% assignment fee was part of the finance charge of the mortgage and therefore should have been disclosed by the bank and included in the calculation of the finance charge presented to the Pechinskis before they entered into the loan agreement; and second, that even if the assignment fee is not part of the finance charge, it is a prepayment penalty that should have been disclosed by the bank pursuant to TILA. a) The Assignment Fee is Not Part of the Finance Charge of the Mortgage Among the disclosures required by TILA are the three elements of a credit transaction: the amount financed, the finance charge, and the annual percentage rate. See 15 U.S.C. § 1638. TILA and Regulation Z define the finance charge as “the sum of all charges, payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit.” 15 U.S.C. § 1605(a); see also 12 C.F.R. § 226.4(a) (the finance charge includes charges imposed “as an incident to or a condition of the extension of credit.”). Examples of charges included in the finance charge are: interest on the loan, service or carrying charges, loan fees, finder’s fees, fees for an investigation or credit report, or other charges for any guarantee or insurance that protects the creditor against the obli-gor’s default or other credit loss. See 15 U.S.C. § 1605(a)." }, { "docid": "6625194", "title": "", "text": "certification and entering summary judgment in favor of the creditor on each of three distinct substantive claims: (1) The creditor had failed to disclose the annual percentage rate more conspicuously than the other necessary disclosures; (2) The creditor had failed to include a fee for recording the assignment of its mortgage in the finance charge; and (3) The “net proceeds” of the loan were inaccurately disclosed. The court exhaustively discussed the class issue, on which it affirmed the district court, 729 F.2d at 1374-79, and the first substantive issue, on which it reversed the district court and found liability. Id. at 1379-82. It devotes but a single paragraph each to its disposition of the plaintiffs’ second and third claims, which were dictum in light of its previous holdings rendering the presence of violations additional to the first asserted violation immaterial. See 15 U.S.C. § 1640(g). In the paragraph discussing the exclusion of fees for recording the assignment of the plaintiffs’ mortgages from the finance charge, the court states, id. at 1382: The courts have stated that such recording fees are properly excludable. Title 15 U.S.C.A. § 1605 specifically states that fees or premiums for title examination, title insurance, or similar purposes may be excluded from the finance charge. Under this provision, the fee for recording the assignment of the mortgage was properly excluded from the finance charge on the Truth-in-Lending disclosure statement. George v. General Finance Corp. of Louisiana, 414 F.Supp. 33 (E.D.La.1976). A careful review of George, supra, the only holding of the “courts” cited in Shro-der, indicates that it does not stand for the proposition ascribed to it by the Shroder court. In George, 414 F.Supp. at 34, the issue raised by the plaintiff was whether a $2.00 charge for “official fees” and a $.75 charge for “notary fees,” both disclosed to the borrower and actually paid for these purposes, were properly excluded from the disclosure of the finance charge. The George plaintiff maintained that the notary fee was not a “charge prescribed by law” within the scope of 12 C.F.R. at § 226.4(e)(1) because “ ‘there is" }, { "docid": "6764439", "title": "", "text": "(1) When an obligation includes a finance charge computed from time to time by application of a rate to the unpaid principal balance, a statement [must be issued] indicating whether or not a penalty may be imposed if the obligation is prepaid in full. (2) When an obligation includes a finance charge other than the finance charge described in paragraph (k)(l) of this section, a statement [must be issued] indicating whether or not the consumer is entitled to a rebate of any finance charge or if the obligation is prepaid in full. 12 C.F.R. § 226.18(k). The Federal Reserve Bank has also issued Official Staff Interpretations of Regulation Z, 12 C.F. R. § 226, Supp. I (1996), which are to be given deference by the judicial branch. See Milhollin, 444 U.S. at 566, 100 S.Ct. 790. The Staff Interpretations define prepayment “penalty” to encompass “only those charges that are assessed strictly because of the prepayment in full of a simple-interest obligation, as an addition to all other amounts.” Official Staff Interpretations, 12 C.F.R. § 226, Supp. I, ¶ 18(k). The Staff Interpretations offer examples of prepayment penalties including: “[i]nterest charges for any period after prepayment in full is made” or “[a] minimum finance charge in a simple-interest transaction.” Id. TILA and its official interpretations thereby indicate that the type of penalty that must be disclosed relates to finance charges in addition to those otherwise due upon prepayment of the loan. The given examples all involve interest payments or other components of the finance charge. As determined above, however, the .875% fee is not part of the finance charge and therefore is not the type of fee that qualifies as a prepayment penalty. See Stutman, 1996 WL 539845, at*5. Furthermore, the assignment fee at issue in this action does not fall within the statute’s definition of a prepayment penalty because the fee was not imposed “strictly because of the prepayment in full” of the Astoria Federal loan. Had plaintiffs merely prepaid their loan — rather than requesting an assignment in conjunction with prepayment — no fee would have been assessed. See" }, { "docid": "22897321", "title": "", "text": "CHOY, Circuit Judge: Donald L. Bone charges that the Hibernia Bank violated the disclosure requirements of the Truth in Lending Act, 15 U.S.C. § 1638(a) (1970), as implemented by the Federal Reserve Board’s Regulation Z, 12 C.F.R. Part 226, by failing to adequately identify its method of computing the unearned, precomputed portion of the finance charge on a loan obligation in the event of the obligation’s prepayment. Hibernia’s disclosure statement revealed that its method of rebating such interest was “according to the ‘Rule of 78’s’.” The district court, holding that this simple reference did not provide meaningful disclosure to the average credit consumer, granted Bone summary judgment and awarded him damages under 15 U.S.C. § 1640(a) (1970). The Bank appeals. We reverse. On December 6, 1971 Bone received a loan of $4,000.00 for the purchase of an automobile from Hibernia’s branch office in Lafayette, California. Interest on the loan was 7.51% per annum. The finance charge was precomputed at this rate for the three year duration of the loan obligation and added to the face amount of the note, for a total indebtedness of $4,479.84 which Bone promised to repay in 36 successive equal installments of $124.44 per month. Before consummating the loan agreement, Bone told Michael Shields, the bank loan officer, of his concern about whether there would be any penalty for prepaying the obligation. Bone then questioned Shields at great length about the prepayment clause contained in Hibernia’s disclosure statement which provides : “PREPAYMENT. If the Loan is paid in full prior to final payment date or maturity, Borrower shall receive a rebate of any precomputed interest included in the finance charge according to the ‘Rule of 78’s;’ provided, however, that there will first be deducted therefrom the sum of $25.00.” Shields explained the meaning of this clause and described its operation in several hypothetical examples of the results obtained if the loan were prepaid at various times before maturity. Several days after receiving the loan, Bone telephoned the Bank, informed it of its alleged violation of the Truth in Lending Act, and offered to “settle his claim”" }, { "docid": "6764436", "title": "", "text": "To determine whether a charge is a part of the finance charge, a court must determine whether the charge is incident to, or a condition of, the extension of credit. See Stutman v. Chemical Bank, No. 94 Civ. 5013, 1996 WL 539845, at *3 (S.D.N.Y. Sept.24, 1996) (citing Veale v. Citibank, 85 F.3d 577, 579 (11th Cir.1996); Berryhill v. Rich Plan of Pensacola, 578 F.2d 1092, 1099 (5th Cir.1978) (“The important question is whether the seller refuses to extend credit until the customer agrees to another charge.”)). The .875% assignment fee in this action is not part of the finance charge as defined by TILA and Regulation Z. The .875% fee was not imposed incident to, or as a condition of, the extension of plaintiffs’ loan. Instead, the fee was imposed more than four years after defendant issued the loan and there is no evidence that defendant would not have provided the loan without a guarantee that plaintiffs would pay this fee. See Stutman, 1996 WL 539845, at *3 ($275 document transfer fee assessed in connection with a mortgage prepayment is not part of the finance charge pursuant to TILA where fee was imposed three year's after the defendant loaned the money and there is no allegation that the defendant would not have granted the loan without a guarantee that the fee would be paid). Moreover, the assignment fee was imposed because of plaintiffs’ specific request that Astoria Federal assign the mortgage to another lending institution. “Therefore, the [fee] was incident not to the extension of the loan, but rather to the extinguishment of the debt.” Id. (citing Adamson v. Alliance Mortg. Co., 861 F.2d 63, 65-66 (4th Cir.1988), overruled on other grounds, Busby v. Crown Supply, Inc., 896 F.2d 833, 841 (4th Cir.1990) (fees for the release of a deed at the termination of a loan were not part of the finance charge because they were not incident to the extension of credit but instead were “incident to the formal extinguishment of the Lender’s liens after the debts had been repaid.”)). Because the .875% assignment fee was not imposed" }, { "docid": "3004405", "title": "", "text": "a precomputed finance charge loan. By including the amount of the finance charge in the total of payments, the defendant has merely informed the plaintiffs of the total cost of their simple interest loan assunfing no prepayment, and assuming that all loan payments are timely received. However, the inclusion of the finance charge in the total of payments does not mean that the loan is not a simple interest loan, for the agreement clearly states that the finance charge is computed daily on the loan balance. If the consumer prepays a simple interest loan, he simply pays the. unpaid balance of the principal plus the interest actually earned through the date of prepayment (plus any prepayment charge). For this reason, § 226.8(b)(7) is inapplicable to a simple interest loan — no rebate of the finance charge occurs since only the interest actually earned is paid by the borrower.. This interpretation is confirmed by Federal Reserve Board Public Information Letter No. 991 (Jan. 22, 1976). This is in response to your letter ... regarding the proper disclosure of the method of computing rebates of unearned finance charges on student loans under Regulation Z. The disclosures are made on promissory notes which consolidate a series of student loans. Item 7 of the Truth in Lending portion of the note states that the borrower may make full or partial prepayment without penalty and further provides that a rebate of unearned interest will be “computed simple on the unpaid balance.” You ask whether this is a sufficient disclosure of the rebate method. Your question apparently relates to § 226.8(b)(7) of Regulation Z, which requires an identification of the method used to compute rebates of unearned finance charges on obligations involving precomputed finance charges. However, this section would not apply to the type of transaction described in the note, which involves a simple interest loan. Assuming this is a true simple interest loan, there would be no unearned finance charges at the time of prepayment and thus no reason to make any disclosures under § 226.8(b)(7). Simple interest loans are, however, subject to the disclosure" }, { "docid": "2485953", "title": "", "text": "charge,” “annual percentage rate,” “total of payments,” and “total sale price” as specified by the Board of Governors of the Federal Reserve System; any security interest taken by creditor; any dollar charge or percentage amount which a creditor may impose on account of late payment, other than a deferral charge; a statement indicating whether consumer is entitled to a rebate of any finance charge upon refinancing or prepayment in full, if the obligation involves a precomputed financing charge, or, alternatively, a statement indicating whether or not a penalty will be imposed if the obligation involves a finance charge computed from time to time by application of a rate to the unpaid principal balance; a statement referring consumer to the appropriate contract document for' information regarding nonpayment, default, acceleration rights, and prepayment rebates and penalties. 15 U.S.C. § 1638(b). Additional information required by § 1638(b) includes: certain life, accident, or health insurance premiums included in the finance charge; property damage and liability insurance premiums included in the finance charge; fees and charges prescribed by law to be paid concerning security interests; , premiums paid for insurance in lieu of perfecting any security interest otherwise required; and any tax levied on security instruments or documents evidencing indebtedness if payment is a precondition for recording a security interest. 15 U.S.C. § 1605. As noted, EZ is a creditor under TILA and thus required to make these disclosures in writing. EZ does not dispute that the documents Plaintiff presents as evidence of the transactions are the ones EZ provided. Each transaction is evidenced by a “Check Cashing Disclosure” and an “Agreement.” The “Check Cashing Disclosure” attempts to comply with TILA, and conspicuously1 segregates from all other information the “amount financed,” the “finance charge,” the APR, and the “total of payments,” among other items. The “annual percentage rate,” listed at 24%, would have been accurately calculated if the “finance charge” of $6.00 were the interest charged on the principal balance of $300.00. As discussed below, however, Defendant assessed finance charges of $105.00 per month. This conclusion is supported by an examination of EZ’s disclosure form," }, { "docid": "2485952", "title": "", "text": "question of whether, based upon the undisputed material facts, Plaintiff is entitled to summary judgment on the issue of the alleged TILA violation by Defendant. A. 15 U.S.C. § 1638(b) and Regulation Z § 226.17(b) TILA and the regulations of the Federal Reserve require creditors to provide borrowers certain information before extending credit. 15 U.S.C. § 1638(b); 12 C.F.R. § 226.17(b). Additionally, TILA specifies that the prerequisite information, except for the creditor’s identity, be “conspicuously segregated from all other terms, data, or information provided in connection with a transaction, including any computations or itemization.” 15 U.S.C. § 1638(b). Information that must be segregated, includes the following: the “amount financed;” the “finance charge;” the finance charge expressed as an APR (if it exceeds a statutory minimum); the “total of payments,” consisting of the sum of the amount financed and the finance charge; the number, amount, and due dates or period of payments required to repay the total; in a sale of property or services, the “total sale price;” descriptive explanations of the terms “amount financed,” “finance charge,” “annual percentage rate,” “total of payments,” and “total sale price” as specified by the Board of Governors of the Federal Reserve System; any security interest taken by creditor; any dollar charge or percentage amount which a creditor may impose on account of late payment, other than a deferral charge; a statement indicating whether consumer is entitled to a rebate of any finance charge upon refinancing or prepayment in full, if the obligation involves a precomputed financing charge, or, alternatively, a statement indicating whether or not a penalty will be imposed if the obligation involves a finance charge computed from time to time by application of a rate to the unpaid principal balance; a statement referring consumer to the appropriate contract document for' information regarding nonpayment, default, acceleration rights, and prepayment rebates and penalties. 15 U.S.C. § 1638(b). Additional information required by § 1638(b) includes: certain life, accident, or health insurance premiums included in the finance charge; property damage and liability insurance premiums included in the finance charge; fees and charges prescribed by law to" }, { "docid": "12162145", "title": "", "text": "PER CURIAM: Chapter 13 bankruptcy trustee Kathleen McDonald appeals the bankruptcy appel late panel’s denial of her request for actual damages, statutory damages, attorneys’ fees, and costs under the Truth in Lending Act, 15 U.S.C. § 1601 et seq., and for attorneys’ fees and costs under Nevada law. This appeal raises an issue of first impression for this circuit: whether statutory damages are available for violations of 15 U.S.C. §§ 1632(a) and 1638(b)(1). We hold that they are not. We also reject the Trustee’s claim for actual damages and for attorneys’ fees and costs. BACKGROUND On June 27, 2002, Bobby Ferrel, Jr. obtained a “pay-day loan” from Checks-N-Advance, Inc. An unsigned promissory note from Checks-N-Advance specified that Ferrel received $300 as a pay-day advance. Ferrel was obligated to repay the $300 and a $45 financing fee by July 4, 2002. The stated annual percentage rate of interest was 782.143%. The “finance charge,” “annual percentage rate,” “amount financed,” and “total of payments” appeared in the same font and size on the promissory note. McDonald claims that Ferrel did not receive disclosures required by the Truth in Lending Act before consummating the transaction. Ferrel filed for Chapter 13 bankruptcy on February 7, 2003. Kathleen McDonald was appointed as trustee. The Trustee, not the unpaid creditor, filed a creditor’s proof of claim on behalf of Check-N-Advance for the unpaid loan. She then initiated an adversary proceeding by filing a complaint requesting that the bankruptcy court disallow the claim. In the complaint, McDonald claimed the loan agreement: (1) failed to provide TILA-required disclosures prior to consummation of the transaction in violation of 15 U.S.C. § 1638(b); (2) failed “properly and conspicuously” to disclose the finance charge and the annual percentage rate in violation of 15 U.S.C. § 1632(a) and its implementing regulations; and (3) violated Nevada state consumer loan law, NRS § 604.164.3, which requires the same disclosures as TILA. McDonald sought damages and attorneys’ fees and costs under TILA, as well as attorneys’ fees and costs under Nevada law. Checks-N-Advance did not respond to the Trustee’s complaint. The bankruptcy court found Check-N-Advance violated" }, { "docid": "6764428", "title": "", "text": "OPINION AND ORDER STEIN, District Judge. Plaintiffs bring this action against Astoria Federal Savings and Loan Association claiming that a $2,479 charge assessed in connection with the assignment of their home mortgage violated the Truth in Lending Act, 15 U.S.C. § 1601 et seq. (“TILA”). Plaintiffs also assert state law claims of common law equity, breach of contract, unjust enrichment, fraud, and deceptive and unfair practices in violation of New York General Business Law § 349. Astoria Federal now moves pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss all claims except for plaintiffs’ breach of contract and unjust enrichment claims. Because, as set forth below, the $2,479 charge was neither part of the finance charge of the mortgage as defined by TILA and its implementing Regulation Z nor is it a prepayment penalty, that charge did not have to be disclosed prior to entering into the loan agreement, and defendant’s motion is accordingly granted. BACKGROUND Plaintiffs Matthew J. Pechinski and Brooke Ritvo Pechinski own an apartment at 62 West 62nd Street in Manhattan. (Compl.f 16.) On March 27, 1997, plaintiffs obtained a $297,600 loan from The Greater New York Savings Bank (“Greater New York”) in order to purchase the apartment. (Id.) The “Fixed/Adjustable Rate Note” (the “Note”) signed in connection with the mortgage stated that the borrower “may make a full prepayment or partial prepayments without paying any prepayment charge.” (Compl. ¶ 18 and Ex. A.) The Pechinskis also received a federal Truth-in-Lending Disclosure Statement that stated that there was no prepayment penalty. (ComplV 18.) However, the mortgage stated that Greater New York could charge plaintiffs a “reasonable fee” as a condition of its agreeing to assign the mortgage to another lending institution. (Compl.20.) In the fall of 1997, subsequent to plaintiffs’ obtaining the mortgage, Greater New York was acquired by Astoria Financial Corp., at which point the Astoria Federal Savings and Loan Association became the holder of plaintiffs’ note and mortgage. (ComplV 31.) Four and one half years after obtaining their mortgage, plaintiffs notified Astoria Federal that they intended to refinance the mortgage, using U.S. Trust Corporation as the new, refinancing" }, { "docid": "6764438", "title": "", "text": "incident to the extension of credit and because it was not a condition of the loan, it is not a finance charge within the meaning of TILA and Regulation Z. b) The Assignment Fee is Not a Prepayment Penalty In addition to the finance charge, TILA requires the disclosure of other as pects of a credit transaction, including certain terms of prepayment. See 12 U.S.C.A. § 1638; 12 C.F.R. § 226.18 (1996). TILA requires that the lending institution provide the consumer with: A statement indicating whether or not the consumer is entitled to a rebate of any finance charge upon refinancing or prepayment in full pursuant to acceleration or otherwise, if the obligation involves a precomputed finance charge [and][a] statement indicating whether or not a penalty will be imposed in those same circumstances if the obligation involves a finance charge computed from time to time by application of a rate to the unpaid principal balance. 15 U.S.C. § 1638(a)(ll). Regulation Z elaborates on the disclosure required in the event of prepayment as follows: (k) Prepayment. (1) When an obligation includes a finance charge computed from time to time by application of a rate to the unpaid principal balance, a statement [must be issued] indicating whether or not a penalty may be imposed if the obligation is prepaid in full. (2) When an obligation includes a finance charge other than the finance charge described in paragraph (k)(l) of this section, a statement [must be issued] indicating whether or not the consumer is entitled to a rebate of any finance charge or if the obligation is prepaid in full. 12 C.F.R. § 226.18(k). The Federal Reserve Bank has also issued Official Staff Interpretations of Regulation Z, 12 C.F. R. § 226, Supp. I (1996), which are to be given deference by the judicial branch. See Milhollin, 444 U.S. at 566, 100 S.Ct. 790. The Staff Interpretations define prepayment “penalty” to encompass “only those charges that are assessed strictly because of the prepayment in full of a simple-interest obligation, as an addition to all other amounts.” Official Staff Interpretations, 12 C.F.R. § 226," }, { "docid": "6625193", "title": "", "text": "the mis-categorized charges would have been ex-cludable if they had been placed in the proper category. We believe that requiring the consumer to pay the $25 mortgage assignment cost here constitutes an attempt to exclude a sum from the finance charge which can never be properly excluded therefrom, and an attempt to do this by the totally impermissible means of combining the disclosure of this fee with excluda-ble charges. Cf. Campbell v. General Finance Corp., 523 F.Supp. 989 (W.D.Va.1981) (a debt previously discharged in bankruptcy which is charged to a consumer in making a post-bankruptcy loan must be disclosed as a finance charge). In support of its position, Credithrift places considerable emphasis on Shroder v. Suburban Coastal Corp., 729 F.2d 1371 (11th Cir.1984), the only prior case which appears to have ruled on the issue of whether a fee for recording the assignment of a mortgage from the lender to its as-signee was properly excluded from the finance charge in a TILA disclosure statement. Shroder involved an appeal from a district court judgment denying class certification and entering summary judgment in favor of the creditor on each of three distinct substantive claims: (1) The creditor had failed to disclose the annual percentage rate more conspicuously than the other necessary disclosures; (2) The creditor had failed to include a fee for recording the assignment of its mortgage in the finance charge; and (3) The “net proceeds” of the loan were inaccurately disclosed. The court exhaustively discussed the class issue, on which it affirmed the district court, 729 F.2d at 1374-79, and the first substantive issue, on which it reversed the district court and found liability. Id. at 1379-82. It devotes but a single paragraph each to its disposition of the plaintiffs’ second and third claims, which were dictum in light of its previous holdings rendering the presence of violations additional to the first asserted violation immaterial. See 15 U.S.C. § 1640(g). In the paragraph discussing the exclusion of fees for recording the assignment of the plaintiffs’ mortgages from the finance charge, the court states, id. at 1382: The courts have stated" }, { "docid": "6764430", "title": "", "text": "mortgagee, and that they therefore planned to prepay their Astoria Federal loan in full and simultaneously assign it to a new lender as a means of avoiding a New York state mortgage recording tax. (Complin 28, 32.) As part of the refinancing transaction, plaintiffs requested that Astoria Federal assign the mortgage to U.S. Trust. (Comply 32.) Astoria Federal responded to plaintiffs’ request for an assignment by indicating that it would assign the mortgage only if the Pechinskis paid (1) an assignment fee of 1% of the outstanding balance of the mortgage, amounting to $2,834.11 and (2) a $200 appearance fee for an Astoria Federal representative to attend the closing, receive its check for the prepayment of the loan, and deliver the assignment to U.S. Trust. (Comply 33.) Plaintiffs ultimately paid Astoria Federal the outstanding balance on the existing loan, the $200 appearance fee and, under protest, an assignment fee of .875% of the outstanding balance of the mortgage, amounting to $2,479. (Compl.f 34.) Shortly thereafter, plaintiffs commenced this action alleging that the assignment fee violated TILA because (1) it was part of the finance charge on the loan and should have been disclosed to plaintiffs and included in the calculation of the finance charge and (2) it was a prepayment penalty that defendant was required to disclose to plaintiffs prior to their entering the loan agreement. Plaintiffs do not contest the $200 appearance fee. DISCUSSION 1. Rule 12(b)(6) Standard In reviewing a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), a court must accept as true the factual allegations in the complaint. See Weinstein v. Albright, 261 F.3d 127, 131 (2d Cir.2001); Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir.1995). A motion to dismiss should not be granted 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.” Walker v. City of New York, 974 F.2d 293, 298 (2d Cir.1992) (quoting Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir.1991)). The review is limited, and “[t]he" }, { "docid": "6764440", "title": "", "text": "Supp. I, ¶ 18(k). The Staff Interpretations offer examples of prepayment penalties including: “[i]nterest charges for any period after prepayment in full is made” or “[a] minimum finance charge in a simple-interest transaction.” Id. TILA and its official interpretations thereby indicate that the type of penalty that must be disclosed relates to finance charges in addition to those otherwise due upon prepayment of the loan. The given examples all involve interest payments or other components of the finance charge. As determined above, however, the .875% fee is not part of the finance charge and therefore is not the type of fee that qualifies as a prepayment penalty. See Stutman, 1996 WL 539845, at*5. Furthermore, the assignment fee at issue in this action does not fall within the statute’s definition of a prepayment penalty because the fee was not imposed “strictly because of the prepayment in full” of the Astoria Federal loan. Had plaintiffs merely prepaid their loan — rather than requesting an assignment in conjunction with prepayment — no fee would have been assessed. See Stutman, 1996 WL 539845, at *5 ($275 document transfer fee was not a prepayment penalty because the fee “was not imposed strictly because of prepayment in full of the obligation, but rather because of specific services requested by plaintiffs in connection with the prepayment.”). Additionally, the assignment fee cannot be deemed a prepayment penalty since the fee can be assessed before or after the loan matures. Accordingly, a loan could mature without payment in full being made by the borrower and the borrower could subsequently obtain refinancing to repay the loan. In the event the borrower requests an assignment as part of the refi nancing, the assignment fee could still be assessed. But this fee could not be considered a pre payment penalty since the loan had already matured. Plaintiffs forcefully contend that the fee is in fact a penalty because it does not relate to any service provided by the lender. Indeed, during oral argument on this motion, Astoria Federal conceded that the cost to the lender of assigning the mortgage is relatively minimal" }, { "docid": "3004406", "title": "", "text": "disclosure of the method of computing rebates of unearned finance charges on student loans under Regulation Z. The disclosures are made on promissory notes which consolidate a series of student loans. Item 7 of the Truth in Lending portion of the note states that the borrower may make full or partial prepayment without penalty and further provides that a rebate of unearned interest will be “computed simple on the unpaid balance.” You ask whether this is a sufficient disclosure of the rebate method. Your question apparently relates to § 226.8(b)(7) of Regulation Z, which requires an identification of the method used to compute rebates of unearned finance charges on obligations involving precomputed finance charges. However, this section would not apply to the type of transaction described in the note, which involves a simple interest loan. Assuming this is a true simple interest loan, there would be no unearned finance charges at the time of prepayment and thus no reason to make any disclosures under § 226.8(b)(7). Simple interest loans are, however, subject to the disclosure requirements of § 226.8(b)(6), if the creditor imposes any penalty charges for prepayment of the loan. Since this transaction involves no such charge, that section would not be applicable. Disclosure of the fact that no penalty is imposed for prepayment is not required, although the Regulation would not prohibit such a disclosure. Thus, we believe that the first sentence of Item 7 may be retained but is not necessary. The second sentence, relating to rebates, should, of course, be deleted since it is inapplicable to this transaction and may be confusing to borrowers. Plaintiffs’ loan appears to be a simple interest loan; hence, the requirements of § 226.8(b)(7) are not pertinent. Further, defendant has revealed the minimum penalty charge imposed upon prepayment and has thus satisfied the requirements of § 226.8(b)(6), which deals with simple interest loans. The Court concludes that summary judgment must be entered in defendant’s favor regarding the alleged violation under 12 C.F.R. § 226.8(b)(7). III. CONCLUSION With regard to the four alleged violations not covered in Dixey v. Idaho First National" }, { "docid": "6764437", "title": "", "text": "connection with a mortgage prepayment is not part of the finance charge pursuant to TILA where fee was imposed three year's after the defendant loaned the money and there is no allegation that the defendant would not have granted the loan without a guarantee that the fee would be paid). Moreover, the assignment fee was imposed because of plaintiffs’ specific request that Astoria Federal assign the mortgage to another lending institution. “Therefore, the [fee] was incident not to the extension of the loan, but rather to the extinguishment of the debt.” Id. (citing Adamson v. Alliance Mortg. Co., 861 F.2d 63, 65-66 (4th Cir.1988), overruled on other grounds, Busby v. Crown Supply, Inc., 896 F.2d 833, 841 (4th Cir.1990) (fees for the release of a deed at the termination of a loan were not part of the finance charge because they were not incident to the extension of credit but instead were “incident to the formal extinguishment of the Lender’s liens after the debts had been repaid.”)). Because the .875% assignment fee was not imposed incident to the extension of credit and because it was not a condition of the loan, it is not a finance charge within the meaning of TILA and Regulation Z. b) The Assignment Fee is Not a Prepayment Penalty In addition to the finance charge, TILA requires the disclosure of other as pects of a credit transaction, including certain terms of prepayment. See 12 U.S.C.A. § 1638; 12 C.F.R. § 226.18 (1996). TILA requires that the lending institution provide the consumer with: A statement indicating whether or not the consumer is entitled to a rebate of any finance charge upon refinancing or prepayment in full pursuant to acceleration or otherwise, if the obligation involves a precomputed finance charge [and][a] statement indicating whether or not a penalty will be imposed in those same circumstances if the obligation involves a finance charge computed from time to time by application of a rate to the unpaid principal balance. 15 U.S.C. § 1638(a)(ll). Regulation Z elaborates on the disclosure required in the event of prepayment as follows: (k) Prepayment." }, { "docid": "877835", "title": "", "text": "outstanding, for the respective periods thereof. There will be deducted from the rebate all unpaid default charges (see (N) below). In measuring the disclosure made by the defendant against the disclosure required by Regulation Z, it is helpful to briefly review the overall purpose of the Consumer Credit Protection Act. The Congressional purpose of the Act is stated in 15 U.S.C. § 1601 as follows: . It is the purpose of this sub-chapter to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit. With respect to the general area of prepayment of obligations, Regulation Z, promulgated by the Federal Reserve Board pursuant to the Consumer Credit Protection Act, has two subparagraphs dealing with required disclosures upon prepayment of an obligation which is other than open end. The subparagraph discussed above, 12 C.F.R. § 226.8(b)(7), deals with obligations involving precomputed finance charges, and subparagraph (6), 12 C.F.R. § 226.8(b)(6), concerns obligations which do not involve precomputed finance charges. Since these two subparagraphs deal with the same general subject, prepayment penalties, and since the purpose of the Consumer Credit Protection Act is to enable consumers to compare credit terms, it seems clear that these two subparagraphs should be considered together. In analyzing these two subparagraphs, the Court finds that the disclosures contemplated by both are similar. The lender must disclose any charge, or the method of determining any charge, which is not related to the finance charge earned on an obligation when it is prepaid. If an obligation does not involve precomputed finance charge, the problem is simplified since any charge over and above the outstanding principal balance would be a penalty. If an obligation does involve precomputed finance charges, the problem is more difficult, since the outstanding contract balance at any given time is made up of principal, earned interest, and unearned interest. In such a case, if an individual prepays the obligation, the unearned finance charge included in the contract balance must be computed before a determination" }, { "docid": "877836", "title": "", "text": "not involve precomputed finance charges. Since these two subparagraphs deal with the same general subject, prepayment penalties, and since the purpose of the Consumer Credit Protection Act is to enable consumers to compare credit terms, it seems clear that these two subparagraphs should be considered together. In analyzing these two subparagraphs, the Court finds that the disclosures contemplated by both are similar. The lender must disclose any charge, or the method of determining any charge, which is not related to the finance charge earned on an obligation when it is prepaid. If an obligation does not involve precomputed finance charge, the problem is simplified since any charge over and above the outstanding principal balance would be a penalty. If an obligation does involve precomputed finance charges, the problem is more difficult, since the outstanding contract balance at any given time is made up of principal, earned interest, and unearned interest. In such a case, if an individual prepays the obligation, the unearned finance charge included in the contract balance must be computed before a determination can be made as to whether a penalty is involved. With this background, 12 C.F.R. § 226.8(b)(7) can now be analyzed more fully. The disclosure contemplated by that section consists of two items. The first of these items is the identification of the method used to determine unearned finance charge. As stated above, the prepayment penalty cannot be ascertained until the unearned interest is computed. The first disclosure is therefore a preliminary step and has no independent value to the consumer in comparing credit terms available to him. To make such a comparison, the consumer needs to proceed to the second disclosure required by 12 C.F.R. § 226.8(b)(7), “. . .a statement of the amount or method of computation of any charge that may be deducted from the amount of any rebate of such unearned finance charge that will be credited to the obligation or refunded to the customer.” The second disclosure provides the consumer with the information he needs to compare credit terms. For example, if a consumer is considering loans from two different" }, { "docid": "6764441", "title": "", "text": "Stutman, 1996 WL 539845, at *5 ($275 document transfer fee was not a prepayment penalty because the fee “was not imposed strictly because of prepayment in full of the obligation, but rather because of specific services requested by plaintiffs in connection with the prepayment.”). Additionally, the assignment fee cannot be deemed a prepayment penalty since the fee can be assessed before or after the loan matures. Accordingly, a loan could mature without payment in full being made by the borrower and the borrower could subsequently obtain refinancing to repay the loan. In the event the borrower requests an assignment as part of the refi nancing, the assignment fee could still be assessed. But this fee could not be considered a pre payment penalty since the loan had already matured. Plaintiffs forcefully contend that the fee is in fact a penalty because it does not relate to any service provided by the lender. Indeed, during oral argument on this motion, Astoria Federal conceded that the cost to the lender of assigning the mortgage is relatively minimal and that the assignment fee, calculated as a percentage of the outstanding principal balance of the loan, bears little if any relation to the services provided. However, those facts are not determinative of the penal nature of the assignment fee, since the fee must be scrutinized in light of the specific definition of a prepayment “penalty” as set forth in TILA and its implementing regulations. As discussed above, the assignment fee here does not constitute a prepayment penalty pursuant to that federal statute. The fact that the fee in question bears no apparent relation to the bank’s cost of providing an assignment may speak to the reasonableness or unreasonableness of the assignment fee, but such an argument relates to plaintiffs’ contract claims, which are not at issue on this motion. 3. The State Law Claims A district court may decline to exercise jurisdiction over claims supported only by supplemental jurisdiction if it has dismissed all the claims over which it has original jurisdiction. See 28 U.S.C. § 1367(c). The remaining claims for relief in plaintiffs’" } ]

[ { "docid": "15849338", "title": "", "text": "him, Hawes points' out that a defendant in a criminal case is not allowed to testify as a witness, that he has only the right to make a statement not under oath, and that husband and wife are not competent or compellable to give'evidence in any criminal proceeding for or against each other. It has been decided, as counsel concede, that the legislature may make one fact prima facie evidence of another, and it is certainly within the established power of a State to prescribe the evidence which is to be received in the courts of its own government. Adams v. New York, 192 U. S. 585, 588. In Hawkins v. Bleakly, 243 U. S. 210, 214, it is said, “ the establishment of presumptions, and of rules respecting the burden of proof, is clearly within the domain of the state governments, and that a provision of this character, not unreasonable in itself and not conclusive of the rights of the party, does not constitute a denial of due process of law. Mobile, Jackson & Kansas City R. R. Co. v. Turnipseed, 219 U. S. 35, 42.” Undoubtedly there must be a relation between the two facts. Bailey v. Alabama, 219 U. S. 219; McFarland v. American Sugar Refining Co., 241 U. S. 79. That is, if one may evidence the other, there must, be connection betwéen them, a requirement that .reasoning insists on and, necessarily, the law. We think the condition is satisfied by the Georgia statute. Distilling spirits is not an ordinary incident of a farm and in a prohibition State has illicit character and purpose, and certainly is not so silent and obscure in use that one who rented a farm upon which it was or had been conducted would probably be ignorant of it. On the con trary, it may be presumed that one on such a farm or one who occupies it will know what there is upon it. It is not arbitrary for the State to act upon the presumption and erect it into evidence of knowledge; not peremptory, of course, but subject to" } ]

[ { "docid": "8749119", "title": "", "text": "corporations and individuals, using engines, locomotives or cars of any kind or description whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gasoline or lever power, and running on tracks, . • . .” That the objection is without merit is so clearly established as to require only references to the decided cases to that effect. The objection to the second statute is that it was wanting in due process because retroactively applied to the ease since the statute was enacted after the accident occurred. But the court below, held that the statute cut off no substantive defense but simply provided a rule of evidence controlling the burden of proof. That as thus construed it does not violate the Fourteenth Amendment to the Constitution of the United States is also so conclusively settled as to again require nothing but a reference to the decided cases. As it results that at the time the writ of error was sued out it had been conclusively settled by the decisions' of this court that both grounds relied upon were devoid of merit, we think the alleged constitutional questions were too frivolous to sustain jurisdiction and we therefore maintain the motion which has been made to dismiss and our judgment will be Dismissed for want of jurisdiction. Tullis v. Lake Erie & W. R. R., 175 U. S. 348; Minnesota Iron Co. v. Kline, 199 U. S. 593; Louisville & Nashville R. R. v. Melton, 218 U. S. 36; Aluminum Company v. Ramsey, 222 U. S. 251. Mobile, J. & K. R. R. v. Turnipseed, 219 U. S. 35, 42-43; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 82; Reitler v. Harris, 223 U. S. 437, 441-442; Luria v. United States, 231 U. S. 9, 25-27." }, { "docid": "13705524", "title": "", "text": "court says: “A foreign corporation is- amenable to suit to enforce a personal liability, if it is doing business within the jurisdiction in such manner and to such extent as to warrant the inference that it is present there. Lafayette Ins. Co. v. French, 18 How. 404, 15 L. Ed. 451; Connecticut Mut. L. Ins. Co. v. Spratley, 172 U. S. 602, 43 L. Ed. 569, 19 S. Ct. 308; St. Louis Southwestern R. Co. v. Alexander, 227 U. S. 218, 57 L. Ed. 486, 33 S. Ct. 245, Ann. Cas. 1915B, 77. Even when present and amenable to suit, it may not, unless it has consented (Pennsylvania F. Ins. Co. v. Gold Issue Min. & Mill. Co., 243 U. S. 93, 61 L. Ed. 610, 37 S. Ct. 344; Smolik v. Philadelphia & R. Coal & I. Co. [D. C.] 222 F. 148), be sued on transitory causes of action arising elsewhere which are unconnected with any corporate action by it within the jurisdiction (Old Wayne Mut. Life Ass’n v. McDonough, 204 U. S. 8, 51 L. Ed. 345, 27 S. Ct. 236; Simon v. Southern R. Co., 236 U. S. 115, 59 L. Ed. 492, 35 S. Ct. 255).” To the same effect, see Morris & Co. v. Skandinavia Ins. Co., 49 S. Ct. 360, 73 L. Ed. page-; Robert Mitchell Furn. Co. v. Selden Breck Const. Co., 257 U. S. 213, 42 S. Ct. 84, 66 L. Ed. 201; Simon v. Sou. Ry. Co., 236 U. S. 115, 35 S. Ct. 255, 59 L. Ed. 492; Old Wayne Mutual Life Ass’n v. McDonough, 204 U. S. 8, 27 S. Ct. 236, 51 L. Ed. 345. The position taken by the plaintiffs that, in taking the requisite steps for removal'and in interposing the demurrer to the jurisdiction, the defendant has voluntarily submitted to the jurisdiction of this court, is untenable. Obviously the filing of a demurrer to the jurisdiction cannot constitute a waiver of the very object therein sought, and the Supreme Court of the United States has repeatedly held that removal of a case to the District" }, { "docid": "22100278", "title": "", "text": "v. Thompson, 281 U. S. 331, 338. 42 Stat. 168. U. S. C. Tit. 7, § 217: “. . . the precisions of all laws relating to the suspending or restraining-the enforcement, operation, or execution of, or the setting aside in whole'or in part the orders of the Interstate Commerce Commission, are made' applicable to the jurisdiction, powers, and \"duties of the Secretary in enforcing the provisions of this title, and to any person subject to the provisions of this’title.” c. 309, 36 Stat. 539. c. 32, 38 Stat. 208, 219; U. S. C., Tit. 28, §§ 41 (8) (27) (28), 47. Procter & Gamble v. United States, 225 U. S. 282, 292; Lehigh Valley R. Co. v. United States, 243 U. S. 412; United States v. Illinois Central R. Co., 244 U. S. 82; United States v. Atlanta, B. & C. R. Co., 282 U. S. 522; Standard Oil Co. v. United States, 283 U. S. 235, 238. c. 64, 42 Stat. 164. U. S. C. Tit. 7, § 207. c. 64, 42 Stat. 166. U. S. C. Tit. 7, § 211. Compare Arizona Grocery Co. v. Atchison, T. & S. F. Ry. Co., 284 U. S. 370, 386, 387. See Cutler v. Rae, 7 How. 729, 731; Morris v. Gilmer, 129 U. S. 315, 325; Minnesota v. Northern Securities Co., 194 U. S. 48, 62; Mattingly v. Northwestern V. R. Co., 158 U. S. 53; 443 Cans v. United States, 226 U. S. 172; Mitchell v. Maurer, 293 U. S. 237, 244. Perez v. Fernandez, 202 U. S. 80, 100; Stratton v. St. Louis S. W. Ry., 282 U. S. 10, 13. United States v. Huckabee, 16 Wall. 414, 435; Stickney v. Wilt, 23 Wall. 150, 163; Gully v. Interstate Natural Gas Co., 292 U. S. 16, 19." }, { "docid": "13521344", "title": "", "text": "Stevens, 95 U. S. 655, 24 L. Ed. 535; Baltimore & Ohio Southwestern Ry. Co. v. Voigt, 176 U. S. 498, 505, 20 S. Ct. 385, 44 L. Ed. 560; Santa Fe, Prescott & Phenix Ry. Co. v. Grant Brothers Construction Co., 228 U. S. 177, 184, 33 S. Ct. 474, 57 L. Ed. 787; Pierce Co. v. Wells, Fargo & Co., 236 U. S. 278, 283, 35 S. Ct. 351, 59 L. Ed. 576; Norfolk Southern R. R. Co. v. Chatman, 244 U. S. 276, 37 S. Ct. 499, 61 L. Ed. 1131, L. R. A. 1917F, 1128. But an, agreement that the carrier shall not be liable for negligence, unless the injured party or his representative gives notice in writing of his claim within a specified period, is good under our law if the period named is a reasonable one. Gooch v. Oregon Short Line R. R. Co., 258 U. S. 22, 42 S. Ct. 192, 66 L. Ed. 443; Southern Pacific Co. v. Stewart, 248 U. S. 446, 449, 450, 39 S. Ct. 139, 63 L. Ed. 350; St. Louis, Iron Mountain & Southern Ry. Co. v. Starbird, 243 U. S. 592, 602, 37 S. Ct. 462, 61 L. Ed. 917. In England, however, a different rule prevails, and it is there settled that a public carrier may exempt itself from liability for its own or its agents’ negligence. Henderson v. Stevenson, L. R. 2 H. L. Sc. 47, 2 R. (H. L.) 71; Parker v. Southeastern Ry. Co., 2 C. P. D. 416; Richardson, Spence & Co. v. Rountree (1844) S. C. 217; Price v. Union Lighterage Co., [1904] 1 K. B. 412; Pyman S. S. Co. v. Hull, etc., R. Co., [1904] 2 K. B. 788; Baxter’s Leather Co. v. Royal, etc., Packet Co., [1908] 2 K. B. 626; The Marriott v. Yeoward, [1909] 2 K. B. 987; Cook v. T. Wilson’s Sons & Co., Ltd., [1915] 85 L. J. K. B. 88; Hood v. Anchor Line, Ltd., [1918] A. C. 837, 849; Charles Wade & Co., Ltd., v. London & N. W. Ry. Co.," }, { "docid": "22538075", "title": "", "text": "obtained it since the effective date of the Act under consideration. The Act authorizes, and in effect constrains, juries to convict defendants charged with violation of this statute even though no evidence whatever has been offered which tends to prove an essential ingredient of the offense. The procedural safeguards found in the Constitution and in the Bill of Rights, Chambers v. Florida, 309 U. S. 227, 237, stand as a constitutional barrier against thus obtaining a conviction, ibid., 235-238. These constitutional provisions contemplate that a jury must determine guilt or innocence in a public trial in which the defendant is confronted with the witnesses against him and in which he enjoys the assistance of counsel; and where guilt is in issue, a verdict against a defendant must be preceded by the introduction of some evidence which tends to prove the elements of the crime charged. Compliance with these constitutional provisions, which of course constitute the supreme law of the land, is essential to due process of law, and a conviction obtained without their observance cannot be sustained. It is unnecessary to consider whether this statute, which puts the defendant against whom no evidence of guilt has been offered in a procedural situation from which he can escape conviction only by testifying, compels him to give evidence against himself in violation of the Fifth Amendment. c. 850, 52 Stat. 1250, 1251; 15 U. S. C. § 902 (f). See 42 F. Supp. 252. These are crimes of violence according to the definition contained in § 1 (6) of the Act, 15 U. S. C. § 901 (6). 131 F. 2d 261. Armed robbery is a crime of violence as defined in § 1 (6) of the Act. 131 F. 2d 614. Wilson v. United States, 162 U. S. 613, 619. Ex parte Fisk, 113 U. S. 713, 721; Adams v. New York, 192 U. S. 585, 599; Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35, 42; Bailey v. Alabama, 219 U. S. 219, 238; Luria v. United States, 231 U. S. 9; Hawes v. Georgia, 258" }, { "docid": "22632245", "title": "", "text": "or taken away either by the preliminary, tentative hearing before the auditor or by the use to which his report may be put. An order of a court, like a statute, is not unconstitutional because it endows an official act or finding with a presumption of regularity or of verity. Marx v. Hanthorn, 148 U. S. 172, 182; Turpin v. Lemon, 187 U. S. 51, 59; Reitler v. Harris, 223 U. S. 437. In Meeker v. Lehigh Valley R. R. Co., 236 U. S. 412, 430, it was held that the provision in § 16 of the Interstate Commerce Act making the findings and. order of the Commission prima fade evidence of the facts therein stated in suits brought to enforce reparation awards, does not infringe upon the right of trial by jury. See also Mills v. Lehigh Valley R. R. Co., 238 U. S. 473; Chicago, Burlington & Quincy R. R. Co. v. Jones, 149 Illinois, 361, 382. In the Meeker Case this court relied especially upon Holmes v. Hunt, 122 Massachusetts, 505, and called attention to the fact that there the statute making the report of an auditor prima facie evidence at the trial before a jury was held to be a legitimate exercise of legislative power over rules of evidence and in no wise inconsistent with the constitutional right of trial by jury. The reasons for holding an auditor’s report admissible as evidence are, in one respect, stronger than for giving such effect to the report of an independent tribunal like the Interstate Commerce Commission. The auditor is an officer of the court which appoints him. The proceedings before him are subject to its supervision, arid the report .may be'used only if, and so far as, acceptable to the court. That neither the hearing before the auditor, nor the introduction of his report in evidence abridges in any way the right of trial by jury was the conclusion reached in 1902 in the District of Massachusetts in Primrose v. Fenno, 113 Fed. Rep. 375; 119 Fed. Rep. 801, the first reported case in which an auditor was" }, { "docid": "22612365", "title": "", "text": "applicable in large measure to the choice of beneficiaries of the relief. In establishing a system of unemployment benefits the legislature is not bound to occupy the whole field. It may strike at the evil where it is most felt, Otis v. Parker, 187 U. S. 606, 610; Carroll v. Greenwich Insurance Co., 199 U. S. 401, 411; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 81; Central Lumber Co. v. South Dakota, 226 U. S. 157, 160; Rosenthal v. New York, 226 U. S. 260, 270; Patsone v. Pennsylvania, 232 U. S. 138, 144; Keokee Coke Co. v. Taylor, 234 U. S. 224, 227; Silver v. Silver, 280 U. S. 117, 123; Hardware Dealers Mutual Fire Ins. Co. v. Glidden Co., 284 U. S. 151, 159, or where it is most practicable to deal with it, Dominion Hotel v. Arizona, 249 U. S. 265, 268-269. It may exclude others whose need is less, New York, N. H. & H. R. Co. v. New York, 165 U. S. 628, 634; St. Louis Consolidated Coal Co. v. Illinois, 185 U. S. 203, 208; Engel v. O’Malley, 219 U. S. 128, 138; N. Y. Central R. Co. v. White, 243 U. S. 188, 208; Radice v. New York, 264 U. S. 292, 294; West Coast Hotel Co. v. Parrish, 300 U. S. 379, or whose effective aid is attended by inconvenience which is greater, Dominion Hotel v. Arizona, supra; Atlantic Coast Line R. Co. v. State, 135 Ga. 545, at 555-556; 69 S. E. 725, as affirmed and approved, Atlantic Coast Line R. Co. v. Georgia, 234 U. S. 280, 289. As we cannot say that these considerations did not lead to the selection of the classes of employees entitled to unemployment benefits, and as a state of facts may reasonably be conceived which would support the selection, its constitutionality must be sustained. There is a basis, on grounds of administrative convenience and expense, for adopting a classification which would permit the use of records, kept by the taxpayer and open to the tax gatherer, as an aid to the" }, { "docid": "22184832", "title": "", "text": "that may be agreed upon.” Baltimore & Ohio R. R. Co. v. Interstate Commerce Commission, 221 U. S. 612; Missouri, Kansas & Texas Ry. Co. v. United States, 231 U. S. 112. United States v. Delaware & Hudson Co., 213 U. S. 366. McCulloch v. Maryland, 4 Wheat. 316, 421-423; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 472; Lottery Case, 188 U. S. 321; Clark Distilling Co. v. Western Maryland Ry. Co., 242 U. S. 311. Chicago, Burlington & Quincy R. R. Co. v. Iowa, 94 U. S. 155, 161; Stone v. Farmers’ Loan & Trust Co., 116 U. S. 307; Interstate Commerce Commission v. Chicago, Rock Island & Pacific Ry. Co., 218 U. S. 88; Minnesota Rate Cases, 230 U. S. 352. New York, New Haven & Hartford R. R. Co. v. Interstate Commerce Commission, 200 U. S. 361; Atlantic Coast Line R. R. Co. v. Riverside Mills, 219 U. S. 186; Texas & Pacific Railway Co. v. Abilene Cotton Oil Co., 204 U. S. 426; Adams Express Co. v. Croninger, 226 U. S. 491; Boston & Maine Railroad v. Hooker, 233 U. S. 97. Johnson v. Southern Pacific Company, 196 U. S. 1; Employers’ Liability Cases, 207 U. S. 463; Baltimore & Ohio R. R. Co. v. Interstate Commerce Commission, 221 U. S. 612; Southern Railway Co. v. United States, 222 U. S. 20; Second Employers’ Liability Cases, 223 U. S. 1. Atlantic Coast Line R. R. Co. v. North Carolina Corporation Commission, 206 U. S. 1, 26; Missouri Pacific Railway v. Kansas, 216 U. S. 262, 278. Dow v. Beidelman, 125 U. S. 680; Chicago, Rock Island & Pacific Ry. Co. v. Arkansas, 219 U. S. 453; Omaha & Council Bluffs Street Ry. v. Interstate Commerce Commission, 230 U. S. 324; Chesapeake & Ohio Ry. Co. v. Conley, 230 U. S. 513, 522-524; St. Louis, Iron Mountain & Southern Ry. Co. v. Arkansas, 240 U. S. 518. United States v. Delaware & Hudson Co., 213 U. S. 366, 417; Grenada Lumber Co. v. Mississippi, 217 U. S. 433, 443; Southwestern Oil Co. v. Texas, 217" }, { "docid": "23245335", "title": "", "text": "Railway, 124 Minn. 368, 373, 145 N.W. 40; Menard v. Goltra, 328 Mo. 368, 40 S.W.2d 1053. See Helton v. Alabama Midland, 97 Ala. 275, 12 So. 276; St. Louis & S. F. R. Co. v. Coy, 113 Ark. 265, 168 S.W. 1106; Prinn v. De Rice, 1930, 129 Me. 479, 149 A. 580; Pennsylvania Co. v. McCann, 54 Ohio St. 10, 42 N.E. 768, 31 L.R.A. 651, 56 Am.St.Rep. 695. Contra: Olson v. Omaha & C. B. S. Railway Co., 131 Neb. 94, 267 N.W. 246; Precourt v. Driscoll, 85 N.H. 280, 157 A. 525, 78 A.L.R. 874. Cf. Lykes Bros. SS. Co. v. Esteves, 5 Cir., 89 F.2d 528; Dela ware & Hudson Co. v. Nahas, 3 Cir., 14 F.2d 56. In these two groups of cases the courts were talking about the same thing and labelling it differently, but in each instance. the result was the same; the court was choosing the appropriate classification to enable it to apply its own familiar rule. In another and quite-different setting the question of classification has frequently arisen, namely, in cases involving the constitutionality of statutes shifting from the plaintiff to the defendant the burden of proof on the issue of contributory negligence, as applied retroactively to alleged torts committed before the date of the enactment. Here the courts, federal as well as state, have upheld the statutes as so applied. Sackheim v. Pigueron, 215 N.Y. 62, 109 N.E. 109; Southern Ind. Ry. v. Peyton, 157 Ind. 690, 693, 61 N.E. 722; Wallace v. Western N. C. R., 104 N.C. 442, 10 S.E. 552; Easterling Lumber Co. v. Pierce, 235 U.S. 380, 35 S.Ct. 133, 59 L.Ed. 279. See Meeker v. Lehigh Valley Rd. Co., 236 U.S. 412, 430, 35 S.Ct. 328, 59 L.Ed. 644, Ann.Cas.1916B, 691; Luria v. United States, 231 U.S. 9, 25-27, 34 S.Ct. 10, 58 L.Ed. 101; Mobile, Jackson & Kansas City Rd. Co. v. Turnipseed, 219 U.S. 35, 42, 31 S.Ct. 136, 55 L.Ed. 78, 32 L.R.A.,N.S., 226, Ann.Cas.1912A, 463; Reitler v. Harris, 223 U.S. 437, 441, 442, 32 S.Ct. 248, 56 L.Ed. 497. The" }, { "docid": "22753239", "title": "", "text": "Milling Co., 218 U. S. 406; Seaboard Air Line Ry. v. Seegers, 207 U. S. 73; Yazoo & Mississippi Valley R. R. Co. v. Jackson Vinegar Co., 226 U. S. 217, that of public utility and patron; in Noble State Bank v. Haskell, 219 U. S. 104, that of banker and depositor; in St. Louis & San Francisco Ry. Co. v. Mathews, 165 U. S. 1; Missouri, Kansas & Texas Ry. Co. v. May, 194 U. S. 267; and Minneapolis & St. Louis Ry. Co. v. Emmons, 149 U. S. 364, that of railway and .adjoining landowner. Holden v. Hardy, 169 U. S. 366; St. Louis, Iron Mountain & St. Paul Ry. Co. v. Paul, 173 U. S. 404; Tullis v. Lake Erie & Western R. R. Co., 175 U. S. 348; Knoxville Iron Co. v. Harbison, 183 U. S. 13; Atkin v. Kansas, 191 U. S. 207; Great Southern Hotel Co. v. Jones, 193 U. S. 532; Minnesota Iron Co. v. Kline, 199 U. S. 593; Wilmington Star Mining Co. v. Fulton, 205 U. S. 60; Muller v. Oregon, 208 U. S. 412; McLean v. Arkansas, 211 U. S. 539; Louisville & Nashville R. R. Co. v. Melton, 218 U. S. 36; Mobile, Jackson & Kansas City R. R. Co. v. Turnipseed, 219 U. S. 35; Chicago, Rock Island & Pacific Ry. Co. v. Arkansas, 219 U. S. 453; Arizona Employers’ Liability Cases, 250 U. S. 400. Compare Second Employers’ Liability Cases, 223 U. S. 1. Muller v. Oregon, 208 U. S. 412, 420. 53 Geo. 3, c. 40. For the earlier law see, for instance, 23 Edw. 3, c. 1-8; 25 Edw. 3, c. 1-7, The Statutes of Laborers; 5 Eliz., c. 4; 1 Jac. 1, c. 6. 5 Geo. 4, c. 95, (replaced by 6 Geo. 4, c. 129). For the earlier law see, for instance, 34 Edw. 3, c. 9; The King v. Journeymen Tailors of Cambridge, 8 Modern, 10; Wright, The Law of Criminal Conspiracies. Criminal Law Amendment Act (1871), 34 & 35 Vic., c. 32, § 1, last paragraph. For the earlier law see" }, { "docid": "22544944", "title": "", "text": "to reside permanently in the United States, and his subsequent residence in a foreign country was prompted by considerations which were consistent with that Intention, he is at liberty to show it. Not only so, but these are matters of which he possesses full, if not special, knowledge. The controlling rule respecting the power of the legislature in establishing such presumptions is comprehensively stated in Mobile &c. Railroad Co. v. Turnipseed, 219 U. S. 35, 42, 43, as follows: “Legislation providing that proof of one fact shall constitute prima facie evidence of the main fact in issue, is but to enact a rule of evidence, and quite within the general power of government.. Statutes, national and state, dealing with such methods of proof in both civil and criminal cases abound, and the decisions upholding them are numerous. . . . “That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law or a denial of the equal protection of the law it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate. So, also, it must not, under guise of regulating thé presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed. “If a legislative provision not unreasonable in itself prescribing a rule of evidence, in either criminal or civil cases, does not shut' out from the party affected a reasonable opportunity to submit to the jury in his defense all of the facts bearing upon the issue, there is no ground for holding that due process of law has been denied him.” Of like import are Fong Yue Ting v. United States, 149 U. S. 698, 729; Adams v. New York, 192 U. S. 585, 599; Bailey v. Alabama, 219 U. S. 219, 238; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 81; Reitler" }, { "docid": "11224086", "title": "", "text": "S. 361. Cf. Sioux Remedy Co. v. Cope, 235 U. S. 197, 203. Western Union v. Foster, 247 U. S. 105, 114. Frost Trucking Co. v. Railroad Comm’n, 271 U. S. 583, 593, et seq. Foster-Fountain Packing Co. v. Haydel, 278 U. S. 1, 13. United States v. Chicago, M., St. P. & P. R. Co., 282 U. S. 311, 328. Tomlinson v. Jessup, 15 Wall. 454, 459. Miller v. State, 15 Wall. 478, 488, 493 et seq. Shields v. Ohio, 95 U. S. 319, 324. Beer Co. v. Massachusetts, 97 U. S. 25, 33. Sinking-Fund Cases, 99 U. S. 700, 720. Greenwood v. Freight Co., 105 U. S. 13, 17 et seq. Close v. Glenwood Cemetery, 107 U. S. 466, 474-476. Lake Shore & M. S. Ry. Co. v. Smith, 173 U. S. 684, 698. Fair Haven & W. R. Co. v. New Haven, 203 U. S. 379, 388 et seq. Berea College v. Kentucky, 211 U. S. 45, 57. Hammond Packing Co. v. Arkansas, 212 U. S. 322, 345, 346. Missouri Pacific Ry. Co. v. Kansas, 216 U. S. 262, 274. Chicago, M. & St. P. R. Co. v. Wisconsin, 238 U. S. 491, 501. Sears v. Akron, 246 U. S. 242, 248. Coombes v. Getz, 285 U. S. 434, 441. Public Service Common of Puerto Rico v. Havemeyer, 296 U. S. 506. Looker v. Maynard, 179 U. S. 46, 52. Texas & N. O. R. Co. v. Miller, 221 U. S. 408, 414. Aluminum Co. v. Ramsey, 89 Ark. 522, 535; 117 S. W. 568. Railroad Company v. Fort, 17 Wall. 553, 559. Hough v. Railway Co., 100 U. S. 213, 217. Randall v. Baltimore & Ohio R. Co., 109 U. S. 478, 483. Armour v. Hahn, 111 U. S. 313, 318. Chicago, M. & St. P. Ry. v. Ross, 112 U. S. 377, 382 et seq. Northern Pacific R. Co. v. Herbert, 116 U. S. 642, 647. New. York Central R. Co. v. White, 243 U. S. 188, 198-199. Cf. Standard Oil Co. v. Anderson, 212 U. S. 215, 220. Lindsley v. Natural Carbonic Gas Co.," }, { "docid": "22359003", "title": "", "text": "past and how it had dealt with them. For many years before the enactment of Transportation Act, 1920, it had been necessary, from time to time, to adjudicate comprehensively upon substantially all rates in a large territory. When such rate changes were applied for, the Commission made them by a single order; and, in large part, on evidence deemed typical of the whole rate structure. This remained a common practice after the burden of proof to show that a proposed increase of any rate was reasonable had been declared, by Act of June 18, 1910, c. 309, § 12, 36 Stat. 539, 551, 552, to be upon the carrier. Thus, the practice did not have its origin in the group system of rate-making provided for in 1920 by the new § 15a. It was the actual necessities of procedure and administration which had led to the adoption of that method, in passing upon the reasonableness of proposed rate increases. The necessity of adopting a similar course when multitudes of divisions were to be passed upon was obvious. The method was equally appropriate in such enquiries; and we must assume that Congress intended to confer upon the Commission power to pursue it. That there is no constitutional obstacle to the adoption of the method pursued is clear. Congress may, consistently with the due process clause, create rebuttable presumptions, Mobile, Jackson & Kansas City R. R. Co. v. Turnipseed, 219 U. S. 35; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61; and shift the burden of proof, Minneapolis & St. Louis R. R. Co. v. Railroad & Warehouse Commission, 193 U. S. 53. It might, therefore; have declared in terms, that'if the Commission finds that evidence introduced is typical of traffic and operating conditions, and of the joint rates and divisions, of the carriers of a group, it may be accepted as prima facie evidence bearing upon the proper divisions of each joint rate of every carrier in that group. Congress did so provide, in effect, when it imposed upon the Commission the duty of determining the divisions. For only" }, { "docid": "22780829", "title": "", "text": "full contestation of all the issues, and takes no question of fact from either court or jury. • At most therefore it is merely a rule of evidence. It does not abridge the right of trial, by jury or take away any of its incidents. Nor does it in any wise work a denial of due process of law. In principle it is not unlike the statutes in many of the States whereby tax deeds are made,prima facie evidence of the regularity of all the proceedings upon which their validity depends. Such statutes have been generally sustained, Pillow v. Roberts, 13 How. 472, 476; Marx v. Hanthorn, 148 U. S. 172, 182; Turpin v. Lemon, 187 U. S. 51, 59; Cooley’s Constitutional Limitations, 7th ed. 525, as have many other state and Federal enactments establishing other rebuttable presumptions. Mobile &c. Railroad v. Turnipseed, 219 U. S. 35, 42; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 81; Reitler v. Harris, 223 U. S. 437; Luria v. United States, 231 U. S. 9, 25. Ah instructive case upon the subject is Holmes v. Hunt, 122 Massachusetts, 505, where, in an elaborate opinion by Chief Justice Gray, a statute making the report of an auditor prima facie evidence at the trial before a jury was held to be a legitimate exercise of legislative power oyer rules of evidence and in no wise inconsistent with the constitutional right of trial by jury. And in Chicago &c. Railroad v. Jones, 149 Illinois, 361, 382, a like ruling was made in respect of a statutory provision similar to that now before us. Complaint is made because the court refused to direct a verdict for the defendant, but of this it suffices to say that the ruling was undoubtedly right, because the plaintiff’s evidence, including the findings and orders of the Commission, tended to show every fact essential to a recovery upon both claims and there was no opposing evidence. The District Court made an allowance of $20,000 as a fee for the plaintiff’s attorneys and directed that it be taxed, and collected as" }, { "docid": "7487110", "title": "", "text": "the other facts disclosed at the trial, and so gave judgment for' the defendant. The judgment was affirmed by the Supreme Court of the State (80 Kansas, 148), and the plaintiff then brought the case here upon the contention, denied by that court, that the statute of 1907 impaired the obligation of - his contract and therefore was violative of the contract .clause of the Constitution of the United States. . In our opinion, the contention cannot be sustained. The plaintiff’s rights arising out of his contract were in no wise impaired by the statute of 1907.. It. did not interpose any obstacle to their assertion by him, and neither did it leave him without a suitable remedy for their ascertainment and enforcement. If the attempted forfeiture was invalid before, it continued to be só thereafter. The statute dealt only with a rule of evidence, not with any substantive right. By making the entry of forfeiture upon the official record prima fade, but not conclusive, evidence that all preliminary steps essential to a valid forfeiture were properly taken and that the forfeiture was duly declared, it but established a rebuttable presumption, which he was at liberty to overcome by other evidence. That such a statute does not offend against either the contract clause or the due process of law clause of the Constitution, even where the change is made applicable to. pending causes, is now well 'settled. Pillow v. Roberts, 13 How. 472, 476; Marx v. Hanthorn, 148 U. S. 172, 181; Turpin v. Lemon, 187 U. S. 51, 59; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 81; Curtis v. Whitney, 13 Wall. 68; Cooley’s Const. Lim., 7th ed. 409, 524-526. It was because the plaintiff failed to assume and carry the burden of overcoming the rebuttable presumption established by the statute that he failed in his action. Judgment affirmed." }, { "docid": "22780828", "title": "", "text": "greater than the rebate; but unless they were proved they could not be recovered. Whatever they were they could be recovered.” There is nothing in either report of the Commission which is in conflict with what was said in that case. On the contrary, the plain import of the findings is that the amounts awarded represent the claimant’s actual pecuniary loss; and, in view of the recital that the findings were based upon the evidence adduced, it must be presumed, there being no showing to the contrary, that they were justified by it... It is also urged, as it was in the courts below, that the provision in § 16 that, in actions like this, “the findings and order of the Commission shall be prima facie evidence of the facts therein stated” is repugnant to the Constitution in that it infringes upon the right of trial by jury and operates as a denial of due process of law. This provision only establishes a rebuttable presumption. It cuts off no defense, interposes no obstacle to a full contestation of all the issues, and takes no question of fact from either court or jury. • At most therefore it is merely a rule of evidence. It does not abridge the right of trial, by jury or take away any of its incidents. Nor does it in any wise work a denial of due process of law. In principle it is not unlike the statutes in many of the States whereby tax deeds are made,prima facie evidence of the regularity of all the proceedings upon which their validity depends. Such statutes have been generally sustained, Pillow v. Roberts, 13 How. 472, 476; Marx v. Hanthorn, 148 U. S. 172, 182; Turpin v. Lemon, 187 U. S. 51, 59; Cooley’s Constitutional Limitations, 7th ed. 525, as have many other state and Federal enactments establishing other rebuttable presumptions. Mobile &c. Railroad v. Turnipseed, 219 U. S. 35, 42; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 81; Reitler v. Harris, 223 U. S. 437; Luria v. United States, 231 U. S. 9, 25." }, { "docid": "22359004", "title": "", "text": "was obvious. The method was equally appropriate in such enquiries; and we must assume that Congress intended to confer upon the Commission power to pursue it. That there is no constitutional obstacle to the adoption of the method pursued is clear. Congress may, consistently with the due process clause, create rebuttable presumptions, Mobile, Jackson & Kansas City R. R. Co. v. Turnipseed, 219 U. S. 35; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61; and shift the burden of proof, Minneapolis & St. Louis R. R. Co. v. Railroad & Warehouse Commission, 193 U. S. 53. It might, therefore; have declared in terms, that'if the Commission finds that evidence introduced is typical of traffic and operating conditions, and of the joint rates and divisions, of the carriers of a group, it may be accepted as prima facie evidence bearing upon the proper divisions of each joint rate of every carrier in that group. Congress did so provide, in effect, when it imposed upon the Commission the duty of determining the divisions. For only in that way could the task be performed. As pointed out in Railroad Commission of Wisconsin v. Chicago, Burlington & Quincy R. R. Co., 257 U. S. 563, 579, serious injustice to any carrier could be avoided, by availing of the saving clause which allows ■ anyone to except itself from the order, in whole or in part, on proper showing. Fourth. It is asserted that the order 'directs a transfer of revenues of the western carriers to the New England carriers, pending a decision in the matter of divisions; that Congress has not granted authority to take such provisional action; and that, hence, the order is void. The argument is, that under § 15(6), the Commission. may prescribe divisions only when, upon full hearing, it is of opinion that those existing are, or will be, unjust, unreasonable or inequitable; that in such event it shall prescribe divisions which are just, reasonable and equitable; and that the provisional character of the order demonstrates that the hearing has not been a full one. Whether a hearing" }, { "docid": "22556207", "title": "", "text": "the site or place where, and at the time when, a still or distilling apparatus was set up without having been registered, such presence of the defendant shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury (or of the court when tried without jury).” Section 5601 (b)(4) of 26 U. S. C. provides: “Whenever on trial for violation of subsection (a)(8) the defendant is shown to have been at the site or place where, and at the time when, such distilled spirits were produced by distillation or any other process from mash, wort, wash, or other material, such presence of the defendant shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury (or of the court when tried without jury).” Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35; Bailey v. Alabama, 219 U. S. 219; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61; McFarland v. American Sugar Rjg. Co., 241 U. S. 79; Manley v. Georgia, 279 U. S. 1; Western & Atlantic R. Co. v. Henderson, 279 U. S. 639; Morrison v. California, 291 U. S. 82. E. g., Pugliese v. United States, 343 F. 2d 837 (C. A. 1st Cir., 1965); Barrett v. United States, 322 F. 2d 292 (C. A. 5th Cir., 1963), rev’d on other grounds, sub nom. United States v. Gainey, 380 U. S. 63; McFarland v. United States, 273 F. 2d 417 (C. A. 5th Cir., 1960) (dictum); Vick v. United States, 216 F. 2d 228 (C. A. 5th Cir., 1954); United States v. De Vito, 68 F. 2d 837 (C. A. 2d Cir., 1934); Graceffo v. United States, 46 F. 2d 852 (C. A. 3d Cir., 1931). Brief for petitioner, p. 14. See also brief for petitioner, p. 33, United States v. Gainey, 380 U. S. 63; Bozza v. United States, 330 U. S. 160, 164. The relevant Senate and House Reports discussing the presumptions added by § 5601 (b) are in identical language, which" }, { "docid": "22632244", "title": "", "text": "315. Nor does the requirement of a preliminary hearing infringe the constitutional right, either because it involves delay in reaching the jury trial or because it affords opportunity for exploring in advance the evidence which the adversary purposes to introduce before the jury. Capital Traction Co. v. Hof, 174 U. S. 1. In view of these decisions it cannot be deemed an undue obstruction of the right to a jury trial to require a preliminary hearing before an auditor. Nor can the order be held unconstitutional as unduly interfering with the jury’s determination of issues of fact, because it directs the auditor to form and express an opinion upon facts and items in dispute. The report will, unless rejected by the court, be admitted at the jury trial as evidence of facts and findings embodied therein; but it will be treated, at most,, as prima facie evidence thereof. The parties will.remain as free to call, examine, and cross-examine witnesses as if the report had not been made. No incident of the jury trial is modified or taken away either by the preliminary, tentative hearing before the auditor or by the use to which his report may be put. An order of a court, like a statute, is not unconstitutional because it endows an official act or finding with a presumption of regularity or of verity. Marx v. Hanthorn, 148 U. S. 172, 182; Turpin v. Lemon, 187 U. S. 51, 59; Reitler v. Harris, 223 U. S. 437. In Meeker v. Lehigh Valley R. R. Co., 236 U. S. 412, 430, it was held that the provision in § 16 of the Interstate Commerce Act making the findings and. order of the Commission prima fade evidence of the facts therein stated in suits brought to enforce reparation awards, does not infringe upon the right of trial by jury. See also Mills v. Lehigh Valley R. R. Co., 238 U. S. 473; Chicago, Burlington & Quincy R. R. Co. v. Jones, 149 Illinois, 361, 382. In the Meeker Case this court relied especially upon Holmes v. Hunt, 122 Massachusetts, 505, and" }, { "docid": "22538076", "title": "", "text": "be sustained. It is unnecessary to consider whether this statute, which puts the defendant against whom no evidence of guilt has been offered in a procedural situation from which he can escape conviction only by testifying, compels him to give evidence against himself in violation of the Fifth Amendment. c. 850, 52 Stat. 1250, 1251; 15 U. S. C. § 902 (f). See 42 F. Supp. 252. These are crimes of violence according to the definition contained in § 1 (6) of the Act, 15 U. S. C. § 901 (6). 131 F. 2d 261. Armed robbery is a crime of violence as defined in § 1 (6) of the Act. 131 F. 2d 614. Wilson v. United States, 162 U. S. 613, 619. Ex parte Fisk, 113 U. S. 713, 721; Adams v. New York, 192 U. S. 585, 599; Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35, 42; Bailey v. Alabama, 219 U. S. 219, 238; Luria v. United States, 231 U. S. 9; Hawes v. Georgia, 258 U. S. 1, 4. Mobile, J. & K. C. R. Co. v. Turnipseed, supra, p. 43; Bailey v. Alabama, supra, 239; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 81; Luria v. United States, supra, 25; McFarland v. American Sugar Rfg. Co., 241 U. S. 79, 86; Manley v. Georgia, 279 U. S. 1; Western & Atlantic R. Co. v. Henderson, 279 U. S. 639, 642; Morrison v. California, 291 U. S. 82, 90. Bailey v. Alabama, supra, 235. Delia was convicted upon an indictment which charged, inter alia, receipt of ammunition. McFarland v. American Sugar Rfg. Co., supra, 86. Morrison v. California, supra, 94, 96. See Ferry v. Ramsey, 277 U. S. 88." } ]

[ { "docid": "22712216", "title": "", "text": "and were therefore ineligible for fees under § 1988: “The Farrars sued for $17 million in money damages; the jury gave them nothing. No money damages. No declaratory relief. No injunctive relief. Nothing. . . . [T]he Farrars did succeed in securing a jury-finding that Hobby violated their civil rights and a nominal award of one dollar. However, this finding did not in any meaningful sense ‘change the legal relationship’ between the Farrars and Hobby. Nor was the result a success for the Farrars on a ‘significant issue that achieve[d] some of the benefit the [Farrars] sought in bringing suit.’ When the sole relief sought is money damages, we fail to see how a party ‘prevails’ by winning one dollar out of the $17 million requested.” 941 F. 2d, at 1315 (citations omitted) (quoting Garland, supra, at 791-792). The majority reasoned that even if an award of nominal damages represented some sort of victory, “surely [the Farrars’] was ‘a technical victory ... so insignificant and ... so near the situations addressed in Hewitt and Rhodes, as to be insufficient to support prevailing party status.’” 941 F. 2d, at 1315 (quoting Garland, supra, at 792). The dissent argued that “Hewitt, Rhodes and Garland [do not] go so far” as to hold that “where plaintiff obtains only nominal damages for his constitutional deprivation, he cannot be considered the prevailing party.” 941 F. 2d, at 1317 (Reavley, J., dissenting). We granted certiorari. 502 U. S. 1090 (1992). I — I The Civil Rights Attorney’s Fees Awards Act of 1976, 90 Stat. 2641, as amended, 42 U. S. C. § 1988, provides in relevant part: “In any action or proceeding to enforce a provision of sections 1981,1982,1983,1986, and 1986 of this title, title IX of Public Law 92-318 ... , or title VI of the Civil Rights Act of 1964 .. ., the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” “Congress intended to permit the .. . award of counsel fees only when a party has prevailed on" } ]

[ { "docid": "22550792", "title": "", "text": "Report, at 2. See also Kerr v. Quinn, 692 F. 2d 875, 877 (CA2 1982) (“The function of an award of attorney’s fees is to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel”). A rule of proportionality would make it difficult, if not impossible, for individuals with meritorious civil rights claims but relatively small potential damages to obtain redress from the courts. This is totally inconsistent with Congress’ purpose in enacting § 1988. Congress recognized that private-sector fee arrangements were inadequate to ensure sufficiently vigorous enforcement of civil rights. In order to ensure that lawyers would be willing to represent persons with legitimate civil rights grievances, Congress determined that it would be necessary to compensate lawyers for all time reasonably expended on a case. This case illustrates why the enforcement of civil rights laws cannot be entrusted to private-sector fee arrangements. The District Court observed that “[g]iven the nature of this lawsuit and the type of defense presented, many attorneys in the community would have been reluctant to institute and to continue to prosecute this action.” App. 189. The court concluded, moreover, that “[c]ounsel for plaintiffs achieved excellent results for their clients, and their accomplishment in this case was outstanding. The amount of time expended by counsel in conducting this litigation was reasonable and reflected sound legal judgment under the circumstances.” Id., at 190. Nevertheless, petitioners suggest that respondents’ counsel should be compensated for only a small fraction of the actual time spent litigating the case. In light of the difficult nature of the issues presented by this lawsuit and the low pecuniary value of many of the rights respondents sought to vindicate, it is highly unlikely that the prospect of a fee equal to a fraction of the damages respondents might recover would have been sufficient to attract competent counsel. Moreover, since counsel might not have found it economically feasible to expend the amount of time respondents’ counsel found necessary to litigate the case properly, it is even less likely that counsel would" }, { "docid": "76860", "title": "", "text": "TSI claims the district court’s failure to adjust the award of attorney fees and failure to consider the Johnson factors constitute an abuse of discretion. TSI maintains Allen was only successful on three of her eight claims, and, thus, the lodestar should be reduced based on Allen’s limited success. TSI submits Allen’s successes are further limited when her damages are compared against the court’s award. Allen submitted exhibits stating her compensatory damages and back pay exceeded $233,000.00, and asked the jury to award her $1.5 million in punitive damages. The district court awarded Allen only $23,616.21 in back pay and compensatory damages and $75,000.00 in punitive damages — amounts which total less than one-tenth of the amount she requested. Therefore, TSI argues, given Allen's limited success, a substantial reduction in her lodestar amount is appropriate. TSI claims, when all of the Johnson factors are weighed, they also decidedly favor reducing the lodestar amount. For those reasons, TSI urges $50,000.00 would be an appropriate amount for Allen’s attorney fee award. “We review the district court’s award of attorney’s fees for abuse of discretion.” Simpson v. Merchs. & Planters Bank, 441 F.3d 572, 581 (8th Cir.2006). First, we consider whether Allen was the prevailing party in this litigation. “To be a prevailing party, [Alen] must ‘succeed on any significant issue in litigation which achieves some of the benefit [she] sought in bringing suit.’ ” Forest Park II v. Hadley, 408 F.3d 1052, 1059 (8th Cir.2005) (quoting Farrar v. Hobby, 506 U.S. 103, 109, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992)). Alen was the prevailing party in this case because she obtained judgment in her favor on two of her claims. Moreover, while not receiving the damages sought, she recovered substantial damages and received some of the benefit sought in bringing the suit. The district court’s lodestar calculations are not challenged by TSI. The district court considered the twelve factors outlined in Johnson to calculate the final fee award and did not find any basis for adjusting the lodestar. The district court carefully scrutinized the affidavits and billing statements provided by Alen’s counsel," }, { "docid": "13174620", "title": "", "text": "relevance was Kerr’s “well-educated and cultured” appearance as well as his “fine work record, strong family ties, and no history of prior confrontations with police.” Id. Judge Zampano also thought the case strengthened by “an incontrovertible police record which attested to the lack of proper and customary police procedures, a transcript of the defendants’ testimony under oath in the state criminal trial, which demonstrated almost as a matter of law that the police officers’ arrest lacked probable cause, and the availability of a third party witness, Mr. Santillo, who supported Mr. Kerr’s version in several crucial respects.” Id. Finally, he noted that he had recommended a “rather high settlement” and had cautioned that a “‘substantial recovery’ was probable.” Id. DISCUSSION Although a denial of attorney’s fees should be overturned only if the district court abused its discretion, Robinson v. Kimbrough, 620 F.2d 468 (2d Cir.1980), the latitude afforded trial courts in exercising that discretion is narrowed by a presumption that successful civil rights litigants should recover an attorney’s fee unless special circumstances would render such an award unjust. See S.Rep. No. 1011, 94th Cong., 2d Sess., reprinted in 1976 U.S.Code Cong. & Ad.News 5908, 5912; see also Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) (per curiam). The function of an award of attorney’s fees is to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel. Where the merits of a claim are obviously strong and would be so recognized by local counsel and where the probable damage award is high and would be so recognized by counsel, a district court has discretion to deny an application for counsel fees. This is so because counsel in such cases can be easily obtained on a contingent basis. Since the principal statutory purpose is not served by an award in those circumstances, the addition of counsel fees to a judgment may be considered unjust and denied by the district court. The district court’s discretion to deny fees begins," }, { "docid": "14521314", "title": "", "text": "19, 27 (2d Cir.2000) (quoting Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 334 (2d Cir.1999)). We conclude that, in this case, the District Court exceeded its allowable discretion in denying attorneys’ fees to the prevailing party on the basis of that party’s rejection of the court’s settlement proposal, which was also rejected by his adversary. It is quite clear from the record that the District Court concluded that Raishevich’s refusal to settle at its proposed amount was a “special circumstance” that, by itself, rendered an award of fees unjust. Because the District Court did not analyze the other factors suggested in Kerr, 692 F.2d at 878, and because the decision to award or deny fees is best determined by the district judge “who is most familiar with all facets of the case,” id, a remand is appropriate. See, e.g., Matthew Bender & Co. v. West Publ’g Co., 240 F.3d 116, 126 (2d Cir.2001) (remanding where district court relied on wrong legal standard and did not specifically identify other facts that could have justified a fee award); Mentor Ins. Co. (U.K.) Ltd. v. Brannkasse, 996 F.2d 506, 521 (2d Cir.1993) (“[T]his Court will not speculate as to whether the award is appropriate under any other theory that has not been stated by the district court....”). On remand, the District Court should reconsider Ra-ishevich’s application for attorneys’ fees. CONCLUSION For the foregoing reasons, we affirm the District Court’s amended judgment filed on December 17, 1998 reducing the compensatory damage award. However, we vacate the District Court’s order of November 10, 1999 denying Raishevich’s application for attorneys’ fees and remand for the District Court to reconsider his application. Each party shall bear its own costs on this appeal. . There were four opinions below. Following a bench trial limited to the issue of damages, the District Court awarded Raishevich $24,000 in compensatory damages. Raishevich v. Foster, 9 F.Supp.2d 415 (S.D.N.Y.1998) (“Raishevich I\"). Raishevich II, an unpublished opinion and order, reduced the damage award to $12,000. On January 13, 1999, the District Court, by an unpublished opinion and order, granted" }, { "docid": "14521306", "title": "", "text": "light of all of the circumstances and the size of recovery, an award of such fees might work an injustice.” Id. We emphasized that this decision will turn on such factors as the award of punitive damages, the amount of the compensatory award, the degree and measurability of the harm to the plaintiff, and the public interest in the particular claim. See id. A. Prevailing Party Before we reach the question whether the District Court correctly applied the Kerr test, we must address whether Raishevich is a “prevailing party.” 42 U.S.C. § 1988(b). To so qualify, a “civil rights plaintiff must obtain at least some relief on the merits of his claim.” Farrar, 506 U.S. at 111, 113 S.Ct. 566. A plaintiff who achieves relief as a result of a settlement may be considered a prevailing party if the relief obtained was “of the same general type” as the relief sought. Lyte v. Sara Lee Corp., 950 F.2d 101, 104 (2d Cir.1991) (internal quotation marks omitted). We conclude, as the District Court did, that because Raishevich sought monetary compensation for the value of his destroyed transparencies and because Foster is legally obligated to compensate him, Raishevich qualifies as a “prevailing party.” Raishevich qualifies despite the fact that he received a lesser amount than he sought, because a “judgment for damages in any amount ... modifies the defendant’s behavior for the plaintiffs benefit by forcing the defendant to pay an amount of money he otherwise would not pay.” Farrar, 506 U.S. at 113, 113 S.Ct. 566 (holding that a party who wins nominal damages may be considered a prevailing party); see also Ruggiero v. Krzeminski, 928 F.2d 558, 564 (2d Cir.1991) (holding that a party who achieves only partial success may be considered a prevailing party). At minimum, therefore, Raishevich has established his eligibility for a fee award. See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 758 (2d Cir.1998) (“A plaintiff who has ‘prevailfed]’ in the litigation has established only his eligibility for, not his entitlement to, an award of fees.”) (quoting Farrar, 506 U.S. at 114, 113 S.Ct. 566) (alteration in" }, { "docid": "20042807", "title": "", "text": "Justice O’Connor explains in her concurrence, “when a plaintiffs victory is purely technical or de minimis, a district court need not go through the usual complexities involved in calculating attorney’s fees... .As a matter of common sense and sound judicial administration, it would be wasteful indeed to require that courts laboriously and mechanically go through those steps when the de minim-is nature of the victory makes the proper fee immediately obvious. Instead, it is enough for a court to explain why the victory is de minimis and announce a sensible decision to ‘award low fees or no fees’ at all.” Farrar, 506 U.S. at 118, 113 S.Ct. at 576 (O’Connor, J., concurring). Casey, 12 F.3d at 805. The Supreme Court has also said that “[t]he purpose of § 1988 is to ensure ‘effective access to the judicial process’ for persons with civil rights grievances.” Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (quoting H.R. Rep. No. 94-1558, p. 1 (1976)). Attorneys’ fee awards in civil rights cases are designed “to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel.” City of Riverside v. Rivera, 477 U.S. 561, 578, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986) (referencing fee awards under 42 U.S.C. § 1988 and quoting Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir.1982)). With this purpose, and this general standard, for an award of fees in civil rights cases in mind, I now turn to evaluating the fee claim in this case. B. Paul Dorr’s Fee Claim 1. “Prevailing party” Section 1988 authorizes awards of reasonable attorneys’ fees to a “prevailing party.” 42 U.S.C. § 1988. Thus, the initial question regarding the propriety of awarding attorneys’ fees in a case such as this is whether the plaintiff can be characterized as a “prevailing party.” Casey, 12 F.3d at 804. In Hensley, the Supreme Court stated that a party is a “prevailing party” when he or she “ ‘sueceedfs] on any significant issue in litigation which achieves some of" }, { "docid": "16122000", "title": "", "text": "her action, she was released less than three weeks later. She was not confined for the overwhelming majority of the case, and Milbank was not retained until after her release. She was also released from prison before the defendant answered the complaint or filed a motion for summary judgment, and she was able to amend her complaint as a matter of right. She did so. She also could have voluntarily discontinued her action and then refiled it — when she was no longer a “prisoner.” See Morris, 205 F.Supp.2d at 241 (denying the defendants’ motion to dismiss this action for failure to exhaust administrative remedies pursuant to § 1997e(a) because plaintiff could simply voluntarily discontinue and then refile suit). Perhaps most significantly, if Morris had simply waited a few weeks to file her suit in the first place, the PLRA would not have been implicated at all. This was purely a matter of happenstance. It would be absurd to interpret § 1997e(d) to impose attorneys’ fees limits on a plaintiff who files a successful, non-frivolous civil rights action while a prisoner, but is released from prison less than three weeks later and retains lawyers when she is no longer a prisoner. Accordingly, I hold that § 1997e(d) does not apply to this case. B. The Lodestar Analysis I turn, then, to a traditional lodestar analysis of Morris’s application for fees and costs. 1. Applicable Law Under 42 U.S.C. § 1988, in civil rights actions “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” See Raishevich v. Foster, 247 F.3d 337, 344 (2d Cir.2001). The Second Circuit has explained that the award of attorneys’ fees is designed to “ ‘encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel.’” Id. (quoting Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir.1982)). The Supreme Court has held that success on any significant issue in litigation that achieves “some of the benefit” sought is sufficient to qualify a plaintiff" }, { "docid": "17093143", "title": "", "text": "us to determine that the applicable hourly rate is $250 as to all work performed and award fees accordingly, or, in the alternative, remand to the district court for reconsideration of the hourly rate or rates to be applied and a recalculation of the fee award. II. DISCUSSION A. Standard of Review Attorney’s fees are authorized by 42 U.S.C. § 1988(b) for parties prevailing on claims under 42 U.S.C. § 1983 in order “to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel.” Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir.1982). We review the district court’s award of attorney’s fees for abuse of discretion, LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 757 (2d Cir.1998), and “[a] district court necessarily abuses its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the record,” id. B. Determination of a Reasonable Hourly Rate The district court began its inquiry by calculating a “lodestar” or the number of hours reasonably expended on the litigation times a reasonable hourly rate. Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986); Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). Acknowledging the presumption of reasonableness that attaches to the lodestar, the district court then proceeded to consider whether an adjustment of the lodestar was nonetheless warranted to arrive at a reasonable fee. See Blum, 465 U.S. at 897, 104 S.Ct. 1541. In so doing, the district court was careful to state its findings in reducing the number of hours claimed, Farbotko Fee Award II, slip. op. at 5-8, as well as to provide a not unreasonable explanation for reducing the award by 40% due to what it considered the “limited success” of the appeal, id. at 11-12. Notably, however, the opinion of the district court did not reflect any findings of fact or other comment on the evidence proffered in support of plaintiffs-appellants’ request for" }, { "docid": "17093142", "title": "", "text": "omitted). The district court further rejected plaintiffs-appellants’ argument that “exceptional circumstances” justified awarding a higher hourly rate for work performed in this Court in the first appeal. Id. at 10. Accordingly, the district court used an hourly rate of $175 as to all work performed, and one-half that hourly rate for travel. Id. The final amount of the fee award was $10,962, and $907.13 was also awarded in costs. Id. at 13. On appeal, plaintiffs-appellants focus primarily on the district court’s determination of the applicable hourly rate. No challenge is made to the exclusion of hours, to the 40% downward adjustment of the amount of fees awarded, or to the amount of costs awarded. Plaintiffs-appellants argue that the district court erred in failing to consider evidence of the prevailing market rate and relied instead entirely on prior caselaw in fixing the hourly rate. Plaintiffs-appellants also argue that the district court erred in concluding that no “exceptional circumstances” were present meriting an upward adjustment in the hourly rate for work performed in this Court. Plaintiffs-appellants ask us to determine that the applicable hourly rate is $250 as to all work performed and award fees accordingly, or, in the alternative, remand to the district court for reconsideration of the hourly rate or rates to be applied and a recalculation of the fee award. II. DISCUSSION A. Standard of Review Attorney’s fees are authorized by 42 U.S.C. § 1988(b) for parties prevailing on claims under 42 U.S.C. § 1983 in order “to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel.” Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir.1982). We review the district court’s award of attorney’s fees for abuse of discretion, LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 757 (2d Cir.1998), and “[a] district court necessarily abuses its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the record,” id. B. Determination of a Reasonable Hourly Rate The district court began its inquiry by calculating a" }, { "docid": "14521305", "title": "", "text": "the merits are strong and a probable damage award is high, local counsel would be easily obtained due to the prospect of a significant contingency fee, and thus an award of attorneys’ fees would not further the statutory purpose. See id. Accordingly, we established a two-step test for courts to apply when considering whether special circumstances make it appropriate to deny attorneys’ fees. A court must make an initial determination whether “the plaintiffs claim was so strong on the merits and so likely to result in a substantial judgment that counsel in similar cases could be easily and readily retained.” Id. To evaluate this prong, a court, analyzing the posture of the case at the time counsel is sought, must determine whether “attorneys who generally take such cases on a contingent basis would readily appreciate the value of the case and agree to pursue it.” Id. at 878. After the court determines that the plaintiffs ease satisfies this first requirement for denial of fees, it then may use its discretion to deny fees if, “in light of all of the circumstances and the size of recovery, an award of such fees might work an injustice.” Id. We emphasized that this decision will turn on such factors as the award of punitive damages, the amount of the compensatory award, the degree and measurability of the harm to the plaintiff, and the public interest in the particular claim. See id. A. Prevailing Party Before we reach the question whether the District Court correctly applied the Kerr test, we must address whether Raishevich is a “prevailing party.” 42 U.S.C. § 1988(b). To so qualify, a “civil rights plaintiff must obtain at least some relief on the merits of his claim.” Farrar, 506 U.S. at 111, 113 S.Ct. 566. A plaintiff who achieves relief as a result of a settlement may be considered a prevailing party if the relief obtained was “of the same general type” as the relief sought. Lyte v. Sara Lee Corp., 950 F.2d 101, 104 (2d Cir.1991) (internal quotation marks omitted). We conclude, as the District Court did, that because" }, { "docid": "20042808", "title": "", "text": "“to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel.” City of Riverside v. Rivera, 477 U.S. 561, 578, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986) (referencing fee awards under 42 U.S.C. § 1988 and quoting Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir.1982)). With this purpose, and this general standard, for an award of fees in civil rights cases in mind, I now turn to evaluating the fee claim in this case. B. Paul Dorr’s Fee Claim 1. “Prevailing party” Section 1988 authorizes awards of reasonable attorneys’ fees to a “prevailing party.” 42 U.S.C. § 1988. Thus, the initial question regarding the propriety of awarding attorneys’ fees in a case such as this is whether the plaintiff can be characterized as a “prevailing party.” Casey, 12 F.3d at 804. In Hensley, the Supreme Court stated that a party is a “prevailing party” when he or she “ ‘sueceedfs] on any significant issue in litigation which achieves some of the benefit the part[y] sought in bringing suit.’ ” Hensley, 461 U.S. at 433, 103 S.Ct. 1933 (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978)); Farrar v. Hobby, 506 U.S. 103, 111, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (a prevailing party is one who obtains “at least some relief on the merits of his claim”); Casey, 12 F.3d at 804 (quoting Farrar). Thus, the prevailing party inquiry “does not turn on the magnitude of the relief obtained.” Farrar, 506 U.S. at 114, 113 S.Ct. 566; Casey, 12 F.3d at 804. In Marquart v. Lodge 837, Int’l Ass’n of Machinists & Aerospace Workers, 26 F.3d 842 (8th Cir.1994), the Eighth Circuit Court of Appeals found that the Supreme Court had “delineated the extreme contours of what constitutes a prevailing civil rights plaintiff for purposes of fee-shifting” in Farrar: In Farrar, the Court re-examined three recent civil rights attorneys’ fee decisions to refine the definition of a prevailing civil rights plaintiff under 42 U.S.C. Marquart, 26 F.3d at 850. It is readily apparent that" }, { "docid": "21592352", "title": "", "text": "the Kerr-Selgas rule does not (and henceforth will not) apply to such cases. Thus, the district court’s decision to accept and enforce the unchallenged punitive damages award was entirely proper. Consequently, De Jesus Nazario’s success was not the sort of technical or de minimis victory that can serve to deny prevailing party status under our precedent. See Farrar, 506 U.S. at 114, 113 S.Ct. 566. Nor was her alleged lack of entitlement to punitive damages so clear under Kerr-Selgas as to render a fee award unjust. The appellees have one more arrow in their quiver. They urge — based on the Supreme Court’s holding in Farrar — that the incongruity between the results the plaintiff initially sought and the results she actually obtained supports a complete denial of attorney’s fees. The defendants observe that a gap of $760,000 separates the aggregate damages the plaintiff sought ($800,000) from the damages that the jury actually awarded ($40,000). This chasm, they argue, suggests such modest success as to permit a refusal of all fees. In most cases, however, as we have noted, a gulf between results sought and those obtained is properly addressed when determining the amount of attorney’s fees to be awarded, not when determining whether to award fees in the first place. See Farrar, 506 U.S. at 114, 113 S.Ct. 566; see also Gay Officers Action League, 247 F.3d at 293-94. The defendants, however, press on, correctly noting that the Supreme Court has suggested that where a veritable ocean separates the damages sought from the damages awarded, the appropriate fee can be “no fee at all.” Farrar, 506 U.S. at 116, 113 S.Ct. 566 (O’Connor, J. concurring) (noting that where plaintiff sought 17 million dollars in damages from six defendants and received one dollar from one defendant, plaintiff should not be entitled to an award of any attorney’s fees). Nevertheless, the cases counsel that courts should normally award some attorney’s fees, and adjust the amount of the award to account for the results that the plaintiff obtained. See, e.g., City of Riverside v. Rivera, 477 U.S. 561, 574, 106 S.Ct. 2686," }, { "docid": "14521307", "title": "", "text": "Raishevich sought monetary compensation for the value of his destroyed transparencies and because Foster is legally obligated to compensate him, Raishevich qualifies as a “prevailing party.” Raishevich qualifies despite the fact that he received a lesser amount than he sought, because a “judgment for damages in any amount ... modifies the defendant’s behavior for the plaintiffs benefit by forcing the defendant to pay an amount of money he otherwise would not pay.” Farrar, 506 U.S. at 113, 113 S.Ct. 566 (holding that a party who wins nominal damages may be considered a prevailing party); see also Ruggiero v. Krzeminski, 928 F.2d 558, 564 (2d Cir.1991) (holding that a party who achieves only partial success may be considered a prevailing party). At minimum, therefore, Raishevich has established his eligibility for a fee award. See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 758 (2d Cir.1998) (“A plaintiff who has ‘prevailfed]’ in the litigation has established only his eligibility for, not his entitlement to, an award of fees.”) (quoting Farrar, 506 U.S. at 114, 113 S.Ct. 566) (alteration in original). It remains to be determined whether the District Court exceeded its allowable discretion in concluding that Raishevich is not entitled to an award. B. Likelihood of Attracting Similar Counsel The District Court found that by the time Raishevich obtained his current counsel, the facts in his ease were so favorable that other counsel could easily have been obtained. Raishevich challenges this conclusion, arguing that the facts at the time he brought his complaint were not nearly as favorable as the District Court indicated. Raishevich’s current counsel did not file this complaint but was hired after the defendant conceded liability. Although counsel asserted at oral argument before us that his firm was seeking fees for Raishevich’s former attorney’s work, this assertion is belied by the record. In his memorandum of law in support of his application for attorneys’ fees and costs, Raishevich, through his counsel, explicitly forfeited the opportunity to seek fees for his prior counsel’s work. Pl.’s Mem. of Law submitted to the District Court at 18. The District Court did not exceed its" }, { "docid": "22550791", "title": "", "text": "prevailing plaintiffs in such litigation is particularly important and necessary if Federal civil and consitutional rights are to be adequately protected.” House Report, at 9. (emphasis added; footnote omitted). See also 122 Cong. Rec., at 33314 (remarks of Sen. Kennedy) (“[C]ivil rights cases — unlike tort or antitrust cases — do not provide the prevailing plaintiff with a large recovery from which he can pay his lawyer”). Congress enacted § 1988 specifically to enable plaintiffs to enforce the civil rights laws even where the amount of damages at stake Would not otherwise make it feasible for them to do so: “[F]ee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vin dicate the important Congressional policies which these laws contain. . . If private citizens are to be able to assert their civil rights, and if those who violate the Nation’s fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court.” Senate Report, at 2. See also Kerr v. Quinn, 692 F. 2d 875, 877 (CA2 1982) (“The function of an award of attorney’s fees is to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel”). A rule of proportionality would make it difficult, if not impossible, for individuals with meritorious civil rights claims but relatively small potential damages to obtain redress from the courts. This is totally inconsistent with Congress’ purpose in enacting § 1988. Congress recognized that private-sector fee arrangements were inadequate to ensure sufficiently vigorous enforcement of civil rights. In order to ensure that lawyers would be willing to represent persons with legitimate civil rights grievances, Congress determined that it would be necessary to compensate lawyers for all time reasonably expended on a case. This case illustrates why the enforcement of civil rights laws cannot be entrusted to private-sector fee arrangements. The District Court observed that “[g]iven the nature of this lawsuit and the type of defense presented, many" }, { "docid": "14521304", "title": "", "text": "its discretion if its conclusions are based on an erroneous determination of law, or on a clearly erroneous assessment of the evidence.” Matthew Bender & Co. v. West Publ’g Co., 240 F.3d 116, 121 (2d Cir.2001) (internal quotation marks and citations omitted). Title 42, section 1988 of the United States Code authorizes district courts to award reasonable attorneys’ fees to prevailing parties in proceedings in vindication of civil rights. See 42 U.S.C. § 1988(b). Although a district court typically has wide discretion in choosing whether to deny attorneys’ fees, we have indicated that this discretion is narrowed by a presumption that successful civil rights litigants should ordinarily recover attorneys’ fees unless special circumstances would render an award unjust. Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir.1982). As we explained in Kerr, the “function of an award of attorney’s fees is to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel.” Id. We recognized, however, that in cases in which the merits are strong and a probable damage award is high, local counsel would be easily obtained due to the prospect of a significant contingency fee, and thus an award of attorneys’ fees would not further the statutory purpose. See id. Accordingly, we established a two-step test for courts to apply when considering whether special circumstances make it appropriate to deny attorneys’ fees. A court must make an initial determination whether “the plaintiffs claim was so strong on the merits and so likely to result in a substantial judgment that counsel in similar cases could be easily and readily retained.” Id. To evaluate this prong, a court, analyzing the posture of the case at the time counsel is sought, must determine whether “attorneys who generally take such cases on a contingent basis would readily appreciate the value of the case and agree to pursue it.” Id. at 878. After the court determines that the plaintiffs ease satisfies this first requirement for denial of fees, it then may use its discretion to deny fees if, “in" }, { "docid": "22931767", "title": "", "text": "hostile work environment. Moreover, it found that Wal-Mart failed reasonably to accommodate him and that Wal-Mart had made an impermissible pre-employment inquiry in its job description. It found that Chin aided and abetted in the discrimination but that Bowen—who was a defendant below—did not. The jury, however, also found that Brady was not constructively discharged, and that he had not been subjected to intentional infliction of emotional distress. Based on these findings, the jury awarded Brady $2.5 million in compensatory damages, $9,114 in economic damages, $5 million in punitive damages, and $2 in nominal damages. The district court apportioned all of the compensatory damages to the state law claim and all of the punitive damages to the ADA claim. The court struck the economic damages award because Brady did not prevail on his constructive discharge claim. And, pursuant to 42 U.S.C. § 1981a(b)(3)(D), the punitive damages award was reduced to the statutory cap of $300,000. Appellants filed a Rule 50(b) motion for judgment as a matter of law and a Rule 59 motion for a new trial. The court denied those motions except that it ordered that a new trial on the issue of compensatory damages be held unless Brady accepted a remittitur of the compensatory damages award from $2.5 million to $600,000. Brady v. Wal-Mart Stores, Inc., 455 F.Supp.2d at 217-18. Brady accepted the remittitur. This appeal followed. II. Discussion The appeal involves seven issues: (1) whether Appellants waived their right to move for judgment as a matter of law post-verdict by failing properly to move for judgment as a matter of law at the close of all of the evidence; (2) whether the district court erred in not granting Appellants judgment as a matter of law on Appellee’s disability discrimination claims; (3) whether the district court erred in not granting Appellants judgment as a matter of law on Appellee’s failure-to-accommodate claim; (4) whether the district court improperly admitted into evidence a nationwide consent decree and, if so, whether a new trial should be granted; (5) whether the district court erred in not granting Appellants judgment as a matter" }, { "docid": "16122001", "title": "", "text": "civil rights action while a prisoner, but is released from prison less than three weeks later and retains lawyers when she is no longer a prisoner. Accordingly, I hold that § 1997e(d) does not apply to this case. B. The Lodestar Analysis I turn, then, to a traditional lodestar analysis of Morris’s application for fees and costs. 1. Applicable Law Under 42 U.S.C. § 1988, in civil rights actions “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” See Raishevich v. Foster, 247 F.3d 337, 344 (2d Cir.2001). The Second Circuit has explained that the award of attorneys’ fees is designed to “ ‘encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel.’” Id. (quoting Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir.1982)). The Supreme Court has held that success on any significant issue in litigation that achieves “some of the benefit” sought is sufficient to qualify a plaintiff as a “prevailing party” for attorneys’ fees purposes. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (internal quotations and citation omitted); see Lyte v. Sara Lee Corp., 950 F.2d 101, 103 (2d Cir.1991). At a minimum, the plaintiff “must be able to point to a resolution of the dispute which changes the legal relationship between itself and the defendant.” Texas State Teachers Ass’n v. Garland Indep. School Dist., 489 U.S. 782, 792, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989) (citations omitted). Additionally, under § 1988, a prevailing party is entitled to recover “those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.” LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir.1998) (internal quotations omitted). The costs awarded under § 1988 include not only those ordinarily recoverable pursuant to 28 U.S.C. § 1920, Rule 54(d)(1) of the Federal Rules of Civil Procedure, and a judicial district’s local civil rules, but also any additional costs ordinarily charged in the particular legal marketplace. Anderson v. City of New York," }, { "docid": "16643797", "title": "", "text": "[available] for her state claims are equivalent to those in this forum,” Woodford Opinion at 6; Gatti Opinion at 6, was incorrect. Title VII and the ANEA provide that a prevailing party may be awarded attorneys’ fees. “The function of an award of attorney’s fees is to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel.” Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir.1982). “If private citizens are to be able to assert their civil rights, and if those who violate the Nation’s fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court.” S.Rep. No. 94-1011, at 2 (1976), reprinted in 1976 U.S.C.C.A.N. 5908, 5910. Awards of attorneys’ fees are not available on the claims asserted in the state-court actions, and hence the relief available is not the same. Although plaintiffs, once they exhausted their administrative remedies and received right-to-sue letters, could have brought their Title VII and ADEA claims in state court, see Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 29, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (ADEA); Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 825, 110 S.Ct. 1566, 108 L.Ed.2d 884 (1990) (Title VII), they plainly were entitled to bring them in federal court. See, e.g., id. at 826, 110 S.Ct. 1566 (“It may be assumed that federal judges will have more experience in Title VII litigation than state judges. That ... is ... a factor that the plaintiff may weigh when deciding where to file suit....”) Having properly brought their federal claims in federal court, they are entitled to pursue those claims and, if successful, to be awarded the remedies with which Congress sought to encourage that pursuit. In its ultimate balancing of the Colorado River factors, the district court stated that it “is not in the business of issuing advisory opinions or preempting decisions of state courts.” Woodford Opinion at 6; Gatti Opinion at 6. This dichotomy was an unsound" }, { "docid": "14521317", "title": "", "text": "the District Court’s factual findings regarding the uniqueness of Raishevich's work, his past earnings or his future earnings potential. Tr. of Oral Argument at 11-13. . Kerr's \"special circumstances” exception to a fee award \"serves as a short-hand way of saying that, even before calculating a lodestar or wading through all the reasonableness factors, it is clear that the reasonable fee is no fee at all.” Farrar v. Hobby, 506 U.S. 103, 118, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (O'Connor, J., concurring). . Although Foster now argues on appeal that, because he did not specifically admit committing a constitutional violation, his admission of liability did not qualify Raishevich as a \"prevailing party” under 42 U.S.C. § 1988(b), he previously classified Raishevich's action as one brought pursuant to 42 U.S.C. § 1983 in his two letters to the District Court reflecting his concession of liability. .In its analysis, the District Court indicated that these favorable facts also helped establish the reasoning needed to justify its denial of a fee award. See Raishevich IV, 70 F.Supp.2d at 414-15. The District Court's opinion suggests that it considered the concession of liability, the strength of Raishevich’s case, and the refusal to accept the court-proposed settlement figure all as factors permitting it to exercise its discretion to deny fees. By so doing, the District Court appears to have collapsed its analysis of the two prongs established in Kerr. First, under Kerr, a district court must determine whether the facts at the time counsel was hired reveal that the merits of the case are strong and a probable damage award is high. 692 F.2d at 877-78. Then, and only then, may a district court exercise its discretion to deny fees because the circumstances of the case indicate that an award would be unjust. Id. . Indeed, Raishevich’s current counsel agreed to take this case on a contingent basis. Of course, “determination of the ease with which counsel can be retained to handle cases similar to the plaintiff’s [] is not resolved simply by the fact that in the actual case counsel was retained.\" Kerr, 692" }, { "docid": "14521303", "title": "", "text": "do so would be to multiply the Bigelow factor exponentially. Our precedent suggests the opposite: Bigelow provides only that the factfinder is given some latitude in making a reasonable assessment of the damages, but it does not authorize the assessment of an additional penalty beyond permitting the plaintiff a more liberalized standard of proof. Although the Bigelow principle should be applied, it should not be applied twice. Here, recognizing that Raishevich’s evidence was weak, the District Court gave him the benefit of the doubt, but initially did so twice. Therefore, the District Court correctly reduced its damage award in Raishevich II because it had previously applied Bigelow twice. II. Denial of Attorneys’ Fees Our review of the denial of an award of attorneys’ fees is “highly deferential to the district court” and we reverse only for an abuse of discretion. Alderman v. Pan Am World Airways, 169 F.3d 99, 102 (2d Cir.1999) (internal quotation marks omitted). While “abuse of discretion” is “one of the most deferential standards of review[,] ... [a] district court necessarily abuses its discretion if its conclusions are based on an erroneous determination of law, or on a clearly erroneous assessment of the evidence.” Matthew Bender & Co. v. West Publ’g Co., 240 F.3d 116, 121 (2d Cir.2001) (internal quotation marks and citations omitted). Title 42, section 1988 of the United States Code authorizes district courts to award reasonable attorneys’ fees to prevailing parties in proceedings in vindication of civil rights. See 42 U.S.C. § 1988(b). Although a district court typically has wide discretion in choosing whether to deny attorneys’ fees, we have indicated that this discretion is narrowed by a presumption that successful civil rights litigants should ordinarily recover attorneys’ fees unless special circumstances would render an award unjust. Kerr v. Quinn, 692 F.2d 875, 877 (2d Cir.1982). As we explained in Kerr, the “function of an award of attorney’s fees is to encourage the bringing of meritorious civil rights claims which might otherwise be abandoned because of the financial imperatives surrounding the hiring of competent counsel.” Id. We recognized, however, that in cases in which" } ]

[ { "docid": "22224319", "title": "", "text": "conflict of that character. The argument is also unnecessary and inapposite if the subject is one demanding uniformity of regulation so that state action is altogether inadmissible in the absence of federal action. In that class of cases the Constitution itself occupies the field even if there, is no federal legislation. The argument is appropriately addressed to those cases where States may act in the absence of federal action but where there has been federal action governing the same subject. Prigg v. Pennsylvania, 16 Pet. 539, 617, 618; Northern Pacific Ry. Co. v. Washington, 222 U. S. 370, 379; Erie R. Co. v. New York, 233 U. S. 671, 681, 682; Southern Ry. Co. v. Railroad Commission, 236 U. S. 439, 446, 447; Oregon-Washington R. & N. Co. v. Washington, 270 U. S. 87, 101, 102; Napier v. Atlantic Coast Line R. Co., 272 U. S. 605, 612, 613; Gilvary v. Cuyahoga Valley Ry. Co., 292 U. S. 57, 60, 61. Under our constitutional system, there necessarily remains to the States, until Congress acts, a wide range for the permissible exercise of power appropriate to their ter ritorial jurisdiction although interstate commerce may be affected. Minnesota Rate Cases, 230 U. S. 352, 402. States are thus enabled to deal with local exigencies and to exert in the absence of conflict with federal legislation an essential protective power. And when Congress does exercise its paramount authority, it is obvious that Congress may determine how far its regulation shall go. There is no constitutional rule which compels Congress to occupy the whole field. Congress may circumscribe its regulation and occupy only a limited field. When it does so, state regulation outside that limited field and otherwise admissible is not forbidden or displaced. The principle is thoroughly established that the exercise by the State of its police power, which would be valid if not superseded by federal action, is superseded only where the repugnance or conflict is so “direct and positive” that the two acts cannot “be reconciled or consistently stand together.” Sinnot v. Davenport, 22 How. 227, 243; Missouri, K. & T." } ]

[ { "docid": "23381295", "title": "", "text": "interfere at all, even in the silence of Congress. In the other, (and this is the one in which the legitimate exercise of the State’s police power brings it into contact with interstate commerce so as to affect that commerce,) the State may- exercise its police power until Congress has by affirmative legislation occupied the field by regulating interstate commerce and so necessarily has excluded state action. Cases of the latter type are the Southern Railway Co. v. Reid, 222 U. S. 424; Northern Pacific Railway Co. v. Washington, 222 U. S. 370, 378; C. R. I. & P. Ry. Co. v. Elevator Company, 226 U. S. 426, 435; Erie Railroad Co. v. New York, 233 U. S. 671, 681; and Missouri Pacific Railroad Co. v. Stroud, 267 U.S. 404. Some stress is laid by the counsel of the State on the case of Missouri Pacific Ry. Co. v. Larabee Flour Mills, 211 U. S. 612. There the question was whether a state court might by mandamus compel a railroad company, under its common law obligation as a common carrier, to afford equal local switching service to its shippers, notwithstanding tKe fact that the cars in regard to which the service was claimed were two-thirds of them in interstate commerce and one-third in intrastate commerce. The contention was that the enactment of the Interstate Commerce Law put'such switching wholly in control of the Interstate Commerce Commission. The case was one on the border line, three judges dissenting. The number of cases decided since that case and above cited have made it clear that the rule, as it always had been, was not intended in that case to be departed from. That rule is that there is a field in which the local interests of States touch so closely upon interstate commerce that, in the silence of Congress on the subject, the States may exercise their police powers; and local switchings, as in that case, and quarantine, as in the case before us, are in that field. But when Congress has acted, and occupied the field, as it has here, the" }, { "docid": "23381294", "title": "", "text": "to extirpate it or prevent its spread. Indeed the Commissioner of Agriculture in that case was to aid the state authorities in their quarantine and other measures from federal appropriation. The act we are considering is very different. It makes no reference whatever to cooperation with state authorities. It proposes the independent exercise of federal authority with reference to quarantine in interstate commerce. It covers the whole field so far as the spread of the plant disease by interstate transportation can be affected and restrained. With such authority vested in the Secretary of Agriculture, and with such duty imposed upon him, the state laws of quarantine that affect interstate commerce and this federal law can not stand together. The relief sought to protect the different States, in so far as it depends on the regulation of interstate commerce, must be obtained through application to the Secretary of Agriculture. In the relation of the States to the regulation of interstate commerce by Congress there are two fields. There is one in which the State can not interfere at all, even in the silence of Congress. In the other, (and this is the one in which the legitimate exercise of the State’s police power brings it into contact with interstate commerce so as to affect that commerce,) the State may- exercise its police power until Congress has by affirmative legislation occupied the field by regulating interstate commerce and so necessarily has excluded state action. Cases of the latter type are the Southern Railway Co. v. Reid, 222 U. S. 424; Northern Pacific Railway Co. v. Washington, 222 U. S. 370, 378; C. R. I. & P. Ry. Co. v. Elevator Company, 226 U. S. 426, 435; Erie Railroad Co. v. New York, 233 U. S. 671, 681; and Missouri Pacific Railroad Co. v. Stroud, 267 U.S. 404. Some stress is laid by the counsel of the State on the case of Missouri Pacific Ry. Co. v. Larabee Flour Mills, 211 U. S. 612. There the question was whether a state court might by mandamus compel a railroad company, under its common law" }, { "docid": "22318849", "title": "", "text": "not of the effect of the Commission’s order, which we assume for purposes of decision to be .valid, but whether the grant of power to the Commission operated to supersede the state act before the Commission’s order. We are of opinion that, in the absence of administrative implementation by the Commission, § 1 does not of itself curtail state power to regulate train lengths. The provisions under which the Commission purported to act, phrased in broad and general language, do not in terms deal with that subject. We do not gain either from their words or from the legislative history any hint that Congress in enacting them intended, apart from Commission action, to supersede state laws regulating train lengths. We can hardly suppose that Congress, merely by conferring authority on the Commission to regulate car service in an “emergency,” intended to restrict the exercise, otherwise lawful, of state power to regulate train lengths before the Commission finds an “emergency” to exist. Congress, in enacting legislation within its constitutional authority over interstate commerce, will not be deemed to have intended to strike down a state statute designed to protect the health and safety of the public unless its purpose to do so is clearly manifested, Reid v. Colorado, 187 U. S. 137, 148; Missouri Pacific R. Co. v. Larabee Mills, 211 U. S. 612, 621, et seq.; Missouri, K. & T. R. Co. v. Harris, 234 U. S. 412, 418-419; Welch Co. v. New Hampshire, 306 U. S. 79,85; Allen-Bradley Local v. Board, 315 U. S. 740, 749, or unless the state law, in terms or in its practical administration, conflicts with the Act of Congress, or plainly and palpably infringes its policy. Sinnot v. Davenport, 22 How. 227, 243; Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 623; Savage v. Jones, 225 U. S. 501, 533; Carey v. South Dakota, 250 U. S. 118, 122; Atchison, T. & S. F. R. Co. v. Railroad Comm’n, 283 U. S. 380, 391; Townsend v. Yeomans, 301 U. S. 441, 454. The contention, faintly urged, that the provisions of" }, { "docid": "22224318", "title": "", "text": "state authorities in order to insure safety and determine seaworthiness is not in conflict with any express provision of the federal laws and regulations. The testimony in the record shows that those laws and regulations are administered in accordance with this view. Second. The next question is whether the federal statutes are to be construed as implying a prohibition of inspection by state authorities of hull and machinery to insure safety and determine seaworthiness in the case of vessels which in this respect lie outside the federal requirements. The state court took the view that Congress had occupied the field and that no room was left for state action in relation to vessels plying on navigable waters within the control of the federal government. 186 Wash. pp. 593, 596. And this is the argument pressed by respondents and the Solicitor General. This argument, invoking a familiar principle, would be unnecessary and inapposite if there were a direct conflict with an express regulation of Congress acting within its province. The argument presupposes the absence of a conflict of that character. The argument is also unnecessary and inapposite if the subject is one demanding uniformity of regulation so that state action is altogether inadmissible in the absence of federal action. In that class of cases the Constitution itself occupies the field even if there, is no federal legislation. The argument is appropriately addressed to those cases where States may act in the absence of federal action but where there has been federal action governing the same subject. Prigg v. Pennsylvania, 16 Pet. 539, 617, 618; Northern Pacific Ry. Co. v. Washington, 222 U. S. 370, 379; Erie R. Co. v. New York, 233 U. S. 671, 681, 682; Southern Ry. Co. v. Railroad Commission, 236 U. S. 439, 446, 447; Oregon-Washington R. & N. Co. v. Washington, 270 U. S. 87, 101, 102; Napier v. Atlantic Coast Line R. Co., 272 U. S. 605, 612, 613; Gilvary v. Cuyahoga Valley Ry. Co., 292 U. S. 57, 60, 61. Under our constitutional system, there necessarily remains to the States, until Congress acts, a" }, { "docid": "23074056", "title": "", "text": "Public Utilities Comm’n, 245 U. S. 493, 510: “In construing federal statutes enacted under the power conferred by the commerce clause of the Constitution ... it should never be held that Congress intends to supersede or suspend the exercise of the reserved powers of a State, even where that may be done, unless, and except so far as, its purpose to do so is clearly manifested.” We have frequently applied that principle. See e. g. Reid v. Colorado, 187 U. S. 137, 148. Missouri Pacific Ry. Co. v. Larabee Mills Co. 211 U. S. 612, 621, et seq. Missouri, K. & T. Ry. Co. v. Harris, 234 U. S. 412, 418-419. Smith v. Illinois Bell Telephone Co., 282 U. S. 133, 139. Northwestern Bell Tel. Co. v. Nebraska Ry. Comm’n, 297 U. S. 471, 478. Kelly v. Washington, 302 U. S. 1, 10, et seq. Appellant cites Northern Pacific Ry. Co. v. Washington, 222 U. S. 370, 378; Erie Railroad Co. v. New York, 233 U. S. 671; Oregon-Washington Co. v. Washington, 270 U. S. 87; Napier v. Atlantic Coast Line, 272 U. S. 605, 613; and Missouri Pacific R. Co. v. Porter, 273 U. S. 341, 345. In each, the facts differ so widely from those of the case before us that no discussion is required to show that it is not in point. Plainly Congress by mere grant of power to the Interstate Commerce Commission did not intend to supersede state police regulations established for the protection of the public using state highways. Affirmed. Laws 1933, c. 106 as amended by c. 169, 49 Stat. 546; 49 U. S. C. § 304 3 M. C. C. 665. Ex Parte No. MC-2, July 12, 1938. Ex Parte No. MC-2, December 22, 1938. Ex parte No. MC-2, July 12, 1938 (Rule'3 (a) and (b))." }, { "docid": "22318850", "title": "", "text": "deemed to have intended to strike down a state statute designed to protect the health and safety of the public unless its purpose to do so is clearly manifested, Reid v. Colorado, 187 U. S. 137, 148; Missouri Pacific R. Co. v. Larabee Mills, 211 U. S. 612, 621, et seq.; Missouri, K. & T. R. Co. v. Harris, 234 U. S. 412, 418-419; Welch Co. v. New Hampshire, 306 U. S. 79,85; Allen-Bradley Local v. Board, 315 U. S. 740, 749, or unless the state law, in terms or in its practical administration, conflicts with the Act of Congress, or plainly and palpably infringes its policy. Sinnot v. Davenport, 22 How. 227, 243; Missouri, K. & T. R. Co. v. Haber, 169 U. S. 613, 623; Savage v. Jones, 225 U. S. 501, 533; Carey v. South Dakota, 250 U. S. 118, 122; Atchison, T. & S. F. R. Co. v. Railroad Comm’n, 283 U. S. 380, 391; Townsend v. Yeomans, 301 U. S. 441, 454. The contention, faintly urged, that the provisions of the Safety Appliance Act, 45 U. S. C. §§ 1 and 9, providing for brakes on trains, and of § 25 of Part I of the Interstate Commerce Act, 49 U. S. C. § 26 (b), permitting the Commission to order the installation of train stop and control devices, operate of their own force to exclude state regulation of train lengths, has even less support. Congress, although asked to do so, has declined to pass legislation specifically limiting trains to seventy cars. We are therefore brought to appellant’s principal contention, that the state statute contravenes the commerce clause of the Federal Constitution. Although the commerce clause conferred on the national government power to regulate commerce, its possession of the power does not exclude all state power of regulation. Ever since Willson v. Black-Bird Creek Marsh Co., 2 Pet. 245, and Cooley v. Board of Wardens, 12 How. 299, it has been recognized that, in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters" }, { "docid": "22933625", "title": "", "text": "49 Stat. 546); Welch Co. v. New Hamp shire, 306 U. S. 79 (maximum hours of employees regulated by state prior to effective date of federal regulation); Eichholz v. Comm’n, 306 U. S. 268, 274 (intrastate transportation regulations infringed); Maurer v. Hamilton, 309 U. S. 598, 606 (state regulation of size and weight reserved from federal regulation). Frequently this Court has recognized the power of the state in such circumstances over other interstate carriers. Minnesota Rate Cases, 230 U. S. 352, 408, and cases cited; Erie R. Co. v. Williams, 233 U. S. 685; Erie R. Co. v. Public Utility Comm’rs, 254 U. S. 394, 409; Missouri Pacific R. Co. v. Norwood, 283 U. S. 249. Cf. 7 U. S. C. § 269 (1940); 29 U. S. C. § 160 (a) (1940). Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 437; Adams Express Co. v. Croninger, 226 U. S. 491, 505; New York Central R. Co. v. Winfield, 244 U. S. 147, 150; Oregon-Washington R. Co. v. Washington, 270 U. S. 87, 101 (cf. amendment to meet decision, 44 Stat. 250); Napier v. Atlantic Coast Line, 272 U. S. 605, 612; Missouri Pacific R. Co. v. Porter, 273 U. S. 341, 345; Hines v. Davidowitz, 312 U. S. 52, 66; Illinois Natural Gas Co. v. Central Ill. Pub. Serv. Co., 314 U. S. 498, 509. Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., supra; Savage v. Jones, 225 U. S. 501, 533; Corn Products Rfg. Co. v. Eddy, 249 U. S. 427, 435; Whipple v. Martinson, 256 U. S. 41, 45; Mintz v. Baldwin, 289 U. S. 346, 350; Kelly v. Washington, 302 U. S. 1, 10. These sections are derived from the Acts of August 2, 1886, c. 840, 24 Stat. 209; May 9, 1902, c. 784, 32 Stat. 193; August 10, 1912, c. 284, 37 Stat. 273. § 2325. Inspection, manufacture, storage, and marking of process or renovated butter.. “The Secretary of Agriculture is authorized and required to cause a rigid sanitary inspection to be made, at such times as" }, { "docid": "22458581", "title": "", "text": "wholly within the' State, and within ninety days, in case of shipments from without the State, and that failure to adjust and pay a claim within the prescribed period should subject the carrier to a penalty of fifty dollars in case the full amount claimed was recovered, as the statute was applied to a claim for loss or damage to interstate freight while in the possession of the carrier within the State,- was not an unwarrantable interference. with interstate commerce, in the absence of legislation by Congress, but was rather a regulation in aid of the performance by the carrier of its legal duty. The decision was rested upon the authority and reasoning of Sherlock v. Alling, 93 U. S. 99, 104; Smith v. Alabama, 124 U. S. 465, 476; Nashville &c. Ry. v. Alabama, 128 U. S. 96; Western Union Telegraph Co. v. James, 162 U. S. 650, 660; Chicago, Mil. & St. P. Ry. v. Solan, 169 U. S. 133, 137; Pennsyl vania R. R. Co. v. Hughes, 191 U. S. 477, 491; Missouri Pacific Ry. v. Larabee Mills, 211 U. S. 612, 623. And see Western Union Tel. Co. v. Milling Co., 218 U. S. 406, 416; Western Union Telegraph Co. v. Crovo, 220 U. S. 364; Minnesota Rate Cases, 230 U. S. 362, 402, 408, 410. But the “Act to Regulate Commerce” (Act of February 4, 1887, c. 104, 24 Stat. 379), is now invoked, together with its amendments, and especially that part of the Hepburn Act of June 29, 1906, known as the Carmack Amendment (c. 3591, 34 Stat. 584, 595); and it remains to be considered whether the Texas statute, as applied to claims for loss or damage to interstate freight while in the possession of the carrier in the State of Texas, is repugnant to this. Federal legislation. It is of course settled that when Congress has exerted its paramount legislative authority over a particular subject of interstate commerce, state laws upon the same subject are superseded. Northern Pacific Ry. v. Washington, 222 U. S. 370, 378; Erie Railroad Co. v. New York," }, { "docid": "23074055", "title": "", "text": "intended between duty imposed and action permitted is more striking in view, of the. matters that, along with qualifications and hours of service of drivers, are committed to the discretion of the Commission. They include transportation of bággage and express, uniform systems of accounts, records, and reports, and preservation of records. The roads belong to the State. ■ There is need of local supervision of operation of motor vehicles to prevent collisions, to safeguard pedestrians, and the like. Unquestionably, reasonable regulation of periods of continuous driving is an appropriate measure. In view of the efforts of governmental authorities everywhere to mitigate the destruction of life, limb and property resulting from the use of motor vehicles, it cannot be inferred that Congress intended to supersede any state safety measure prior to the taking effect of a federal measure found suitable to put in its place. Its purpose to displace the local law must be definitely expressed. Mintz v. Baldwin, 289 U. S. 346, 350. The rule applicable is clearly stated in Illinois Central R. Co. v. Public Utilities Comm’n, 245 U. S. 493, 510: “In construing federal statutes enacted under the power conferred by the commerce clause of the Constitution ... it should never be held that Congress intends to supersede or suspend the exercise of the reserved powers of a State, even where that may be done, unless, and except so far as, its purpose to do so is clearly manifested.” We have frequently applied that principle. See e. g. Reid v. Colorado, 187 U. S. 137, 148. Missouri Pacific Ry. Co. v. Larabee Mills Co. 211 U. S. 612, 621, et seq. Missouri, K. & T. Ry. Co. v. Harris, 234 U. S. 412, 418-419. Smith v. Illinois Bell Telephone Co., 282 U. S. 133, 139. Northwestern Bell Tel. Co. v. Nebraska Ry. Comm’n, 297 U. S. 471, 478. Kelly v. Washington, 302 U. S. 1, 10, et seq. Appellant cites Northern Pacific Ry. Co. v. Washington, 222 U. S. 370, 378; Erie Railroad Co. v. New York, 233 U. S. 671; Oregon-Washington Co. v. Washington, 270 U. S." }, { "docid": "22933607", "title": "", "text": "Justice Stone: I think the judgment should be affirmed. The decision of the Court appears to me to depart radically from the salutary principle that Congress, in enacting legislation within its constitutional authority, will not be deemed to have intended to strike down a state statute designed to protect the health and safety of the public unless the state act, in terms or in its practical administration, conflicts with the act of Congress or plainly and palpably infringes its policy. Sinnot v. Davenport, 22 How. 227, 243; Missouri, K. & T. Ry. Co. v. Haber, 169 U. S. 613, 623; Reid v. Colorado, 187 U. S. 137, 148; Savage v. Jones, 225 U. S. 501, 533; Missouri, K. & T. Ry. Co. v. Harris, 234 U. S. 412, 419; Carey v. South Dakota, 250 U. S. 118, 122; Atchison, T. & S. F. Ry. Co. v. Railroad Commission, 283 U. S. 380, 391; Townsend v. Yeomans, 301 U. S. 441, 454; Kelly v. Washington, 302 U. S. 1, 10; cf. Maurer v. Hamilton, 309 U. S. 598, 614. We have here no question of an unexercised discretionary power given by Congress to a federal official as the means of regulating interstate commerce, where the full exercise of his authority would conflict with an assertion of the state power. In such circumstances the state’s authority to act turns upon the question, which this Court has often been called upon to answer, whether the failure of the federal official to exercise his full power is in effect a controlling administrative ruling that no further regulation by either federal or state government is needful. Napier v. Atlantic Coast Line Ry. Co., 272 U. S. 605; cf. Mintz v. Baldwin, 289 U. S. 346; Northwestern Bell Telephone Co. v. Railway Commission, 297 U. S. 471; Welch Co. v. New Hampshire, 306 U. S. 79. Here, concededly, the Secretary is exercising all the authority he has. His authority under 32 Stat. 198, 26 U. S. C. § 2325, to seize and condemn is restricted to the manufactured product, “renovated butter.” It does not extend to" }, { "docid": "22458582", "title": "", "text": "Missouri Pacific Ry. v. Larabee Mills, 211 U. S. 612, 623. And see Western Union Tel. Co. v. Milling Co., 218 U. S. 406, 416; Western Union Telegraph Co. v. Crovo, 220 U. S. 364; Minnesota Rate Cases, 230 U. S. 362, 402, 408, 410. But the “Act to Regulate Commerce” (Act of February 4, 1887, c. 104, 24 Stat. 379), is now invoked, together with its amendments, and especially that part of the Hepburn Act of June 29, 1906, known as the Carmack Amendment (c. 3591, 34 Stat. 584, 595); and it remains to be considered whether the Texas statute, as applied to claims for loss or damage to interstate freight while in the possession of the carrier in the State of Texas, is repugnant to this. Federal legislation. It is of course settled that when Congress has exerted its paramount legislative authority over a particular subject of interstate commerce, state laws upon the same subject are superseded. Northern Pacific Ry. v. Washington, 222 U. S. 370, 378; Erie Railroad Co. v. New York, decided May 25, 1914, 233 U. S. 671. But it is equally well settled that the mere creation of the. Interstate Commerce Commission, and the grant to it of a measure of control over interstate commerce, does not of itself, and in the absence of specific action by the Commission or by Congress itself, interfere with the authority of the States to establish regulations conducive to the welfare and convenience of their citizens, even though interstate commerce be thereby incidentally affected, so long as it be not directly burdened or interfered with. Missouri Pacific Ry. v. Larabee Mills, 211 U. S. 612, 623; Southern Ry. Co. v. Reid, 222 U. S. 424, 437. In the Larabee Mills Case it was held that the railroad company, by engaging in the business of a common carrier, had become subject to certain duties imposed upon it by general law, including the obligation to treat all shippers alike; that the enforcement of this duty and the regulation of matters pertaining to it were within the authority of the State," }, { "docid": "22325885", "title": "", "text": "Board of Wardens of Port of Philadelphia, 12 How. 299; The Steamboat New York v. Rea, 18 How. 223; Morgan v. Louisiana, 118 U. S. 455; The Minnesota Rate Cases, 230 U. S. 352; Wilmington Transp. Co. v. California Railroad Comm., 236 U. S. 151; Vandalia R. Co. v. Public Service Comm., 242 U. S. 255; Stewart & Co. v. Rivara, 274 U. S. 614; Welch Co. v. New Hampshire, 306 U. S. 79. The basic limitations upon local legislative power in this area are clear enough. The controlling principles have been reiterated over the years in a host of this Court’s decisions. Evenhanded local regulation to effectuate a legitimate local public interest is valid unless preempted by federal action, Erie R. Co. v. New York, 233 U. S. 671; Oregon-Washington Co. v. Washington, 270 U. S. 87; Napier v. Atlantic Coast Line, 272 U. S. 605; Missouri Pacific Co. v. Porter, 273 U. S. 341; Service Transfer Co. v. Virginia, 359 U. S. 171, or unduly burdensome on maritime activities or interstate commerce, Minnesota v. Barber, 136 U. S. 313; Morgan v. Virginia, 328 U. S. 373; Bibb v. Navajo Freight Lines, 359 U. S. 520. In determining whether state regulation has been preempted by federal action, “the intent to supersede the exercise by the State of its police power as to matters not covered by the Federal legislation is not to be inferred from the mere fact that Congress has seen fit to circumscribe its regulation and to occupy a limited field. In other words, such intent is not to be implied unless the act of Congress fairly interpreted is in actual conflict with the law of the State.” Savage v. Jones, 225 U. S. 501, 533. See also Reid v. Colorado, 187 U. S. 137; Asbell v. Kansas, 209 U. S. 251; Welch Co. v. New Hampshire, 306 U. S. 79; Maurer v. Hamilton, 309 U. S. 598. In determining whether the state has imposed an undue burden on interstate commerce, it must be borne in mind that the Constitution when “conferring upon Congress the regulation of" }, { "docid": "22774536", "title": "", "text": "sphere of its delegated power. Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426; Northern Pacific Ry. Co. v. Washington, supra; Southern Ry. Co. v. Reid, supra. But the intent to supersede the exercise by the State of its police power as to matters not covered by the Federal legislation is not to be inferred from the mere fact that Congress has seen fit to circumscribe its regulation and to occupy a limited field. In other words, such intent is not to be implied unless the act of Congress fairly interpreted is in actual conflict with the law of the State. This principle has had abundant illustration. Chicago &c. Ry. Co. v. Solan, 169 U. S. 133; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613; Reid v. Colorado, 187 U. S. 137; Pennsylvania R. R. Co. v. Hughes, 191 U. S. 477; Crossman v. Lurman, 192 U. S. 189; Asbell v. Kansas, 209 U. S. 251; Northern Pacific Ry. Co. v. Washington, 222 U. S. 370, 379; Southern Ry. Co. v. Reid, 222 U. S. 424, 442. In Missouri, Kansas & Texas Ry. Co. v. Haber, supra, the Supreme Court of Kansas had affirmed a judgment against the railway company for damages caused by its having brought into the State certain cattle alleged to have been affected with Texas fever which was communicated to the cattle of the plaintiff. The recovery was based upon a statute of Kansas which made actionable the driving or transporting into the State of cattle which were liable to communicate the fever. It was contended that the act óf Congress of May 29, 1884, c; 60 (23 Stat. 31), known as the Animal Industry Act, together with the act of March 3, 1891, c. 544 (26 Stat. 1044), appropriating money to carry out its provisions, and § 5258 of the Re-, vised Statutes, covered substantially the whole subject of the transportation from one State to another State of live stock capable of imparting contagious disease, and therefore that the State of Kansas had no authority to" }, { "docid": "22115111", "title": "", "text": "Congress fairly interpreted is in actual conflict with the law of the State. This principle has had abundant illustration.” Savage v. Jones, 225 U. S. 501, 533. 4. “These cases recognize the established rule that a state law enacted under any of the reserved powers — especially if under the police power — is not to be set aside as inconsistent with an act of Congress, unless there is actual repugnancy, or unless Congress has, at least, manifested a purpose to exercise its paramount authority over the subject. The rule rests upon fundamental grounds that should not be disregarded.” Missouri, K. & T. R. Co. v. Harris, 234 U. S. 412, 418-419. 5. “In construing federal statutes enacted under the power conferred by the commerce clause of the Constitution the rule is that it should never be held that Congress intends to supersede or suspend the exercise of the reserved powers of a State, even where that may be done, unless, and except so far as, its purpose to do so is clearly manifested.” Illinois Central R. Co. v. Public Utilities Comm’n, 245 U. S. 493, 510. 6. “The principle thus applicable has been frequently stated. It is that the Congress may circumscribe its regulation and occupy a limited field, and that the intention to supersede the exercise by the State of its authority as to matters not covered by the federal legislation is not to be implied unless the Act of Congress fairly interpreted is in conflict with the law of the State.” Atchison, T. & S. F. R. Co. v. Railroad Comm’n, 283 U. S. 380, 392-393. 7. “Unless limited by the exercise of federal authority under the commerce clause, the State has power to make and enforce the order. The purpose of Congress to supersede or exclude state action against the ravages of the disease is not lightly to be inferred. The intention so to do must definitely and clearly appear.” Mints v. Baldwin, 289 U. S. 346, 350. 8. “The power conferred upon the Congress is such that when exerted it excludes and supersedes state legislation" }, { "docid": "11228205", "title": "", "text": "the language of the statute already quoted, and the nature of its subject matter indicate that it contemplated no restriction of state control over depreciation rates until the Interstate Commerce Commission had prescribed its own rates. State commissions were not deprived of power to fix rates for intrastate telephone service, in determining which rates of depreciation chargeable to operating expenses play an important part. See Lindheimer v. Illinois Bell Telephone Co., 292 U. S. 151. The statute did not envisage an immediate adoption of depreciation rates by the Interstate Commerce Commission. A long period might elapse, as the event has shown, before the Commission would be prepared to act. It cannot be supposed that Congress intended by the amendment to § 20 (5) to preclude all regulation, state and national, of depreciation rates for telephone companies, for an indefinite time, until the Interstate Commerce Commission could act administratively to prescribe rates. See Illinois Central R. Co. v. Public Utilities Comm’n, 245 U. S. 493, 510; Railroad Commissioners v. Great Northern Ry. Co., 281 U. S. 412, 430. In Smith v. Illinois Bell Telephone Co., 282 U. S. 133, 139, this Court pointed out that until the Interstate Commerce Commission has prescribed depreciation rates the prerogative of the state to regulate such rates cannot be gainsaid. See also Missouri Pacific Ry. Co. v. Larabee Flour Mills Co., 211 U. S. 612, 623. When respondent fixed the composite rate of depreciation applicable to all classes of appellant’s property for 1934, the Interstate Commerce Commission had prescribed no rate. It had given directions for filing data with state commissions preparatory to establishing a rate for the year 1935, and by the Revised Uniform System of Accounts for Telephone Companies, effective in 1933, it had prescribed, Instruction 81 (A) (C), the method by which depreciation accounts should be kept, directing that there be a composite annual percentage rate of depreciation for each account covering depreciable property, ahd that until rates “prescribed by this Commission become effective” the company’s estimated composite rate be used. It is said that the company rate, use of which was" }, { "docid": "22224321", "title": "", "text": "Ry. Co. v. Haber, 169 U. S. 613, 623, 624; Reid v. Colorado, 187 U. S. 137, 148; Crossman v. Lurman, 192 U. S. 189, 199, 200; Asbell v. Kansas, 209 U. S. 251, 257, 258; Missouri Pacific Ry. Co. v. Larabee Mills, 211 U. S. 612, 623; Savage v. Jones, 225 U. S. 501, 533; Atlantic Coast Line v. Georgia, 234 U. S. 280, 293, 294; Carey v. South Dakota, 250 U. S. 118, 122; Atchison, T. & S. P. Ry. Co. v. Railroad Commission, 283 U. S. 380, 392, 393; Mintz v. Baldwin, 289 U. S. 346, 350. Gilvary v. Cuyahoga Valley Ry. Co., supra. A few illustrations will suffice. In Reid v. Colorado, supra, the question arose with respect to a statute of Colorado aimed at the prevention of the introduction into the State of diseased animals. One who had been convicted of its violation contended that the subject of the transportation of cattle by one State to another had been so far covered by the federal statute, known as the Animal Industry Act (23 Stat. 31), that no enactment by .the State upon that subject was permissible. While the congressional act did deal with the subject of the driving or transporting of diseased livestock from one State into another, Congress had gone no further than to make it an offense against the United States for one knowingly to take or send from one State to another livestock affected with infectious or communicable disease. The Court concluded that the state statute, requiring a certificate that the cattle were free from disease, irrespective of the shipper’s knowledge of the actual condition of the cattle, did not cover the same ground as the Act of Congress and was not inconsistent with it. Id., pp. 149, 150. The principle was thus emphatically stated: “It should never be held that Congress intends to supersede or by its legislation suspend the exercise of the police powers of the States, even when it may do so, unless its purpose to effect that result is clearly manifested. This court has said— and the principle" }, { "docid": "22372884", "title": "", "text": "4. The purpose to exclude state action for the discharge of insolvent debtors may be manifested without specific declaration to that end; that which is clearly implied is of equal force as that fidiich is expressed. New York Central R. R. Co. v. Winfield, 244 U. S. 147, 150, et seq. Erie R. R. Co. v. Winfield, 244 U. S. 170. Savage v. Jones, 225 U. S. 501, 533. The general rule is that an intention wholly to exclude state .action will not be implied unless, when fairly interpreted, an Act of Congress is plainly in conflict with state regulation of the same subject. Savage v. Jones, supra. Illinois Central R. R. Co. v. Public Utilities Comm’n, 245 U. S. 493, 510. Merchants Exchange v. Missouri, 248 U. S. 365. In respect of bankruptcies the intention of Congress is plain. The national purpose to establish uniformity necessarily excludes state regulation. It is apparent, without comparison in detail of the provisions of the Bankruptcy Act with those of the Arkansas statute, that intolerable inconsistencies and confusion would result if .that insolvency law be given effect while the national Act is in force. Congress did-not intend to give insolvent debtors seeking discharge, or their creditors seeking to collect claims, choice between the relief provided by the Bankruptcy Act and that specified in state insolvency laws. States may not pass or enforce laws to interfere with or complement the Bankruptcy Act or to provide additional or auxiliary regulations. Prigg v. Pennsylvania, 16 Pet. 539, 617, 618. Northern Pacific Ry. v. Washington, 222 U. S. 370, 378, et seq. St. Louis, Iron Mt. & S. Ry. v. Edwards, 227 U. S. 265. Erie R. R. Co. v. New York, 233 U. S. 671, 681, et seq. New York Central R. R. Co. v. Winfield, supra. Erie R. R. Co. v. Winfield, supra. Oregon-Washington Co. v. Washington, 270 U. S. 87, 101. It is clear that the provisions of the Arkansas law governing the distribution of property of insolvents for the payment of their debts and providing for their discharge, or that otherwise relate to" }, { "docid": "22933624", "title": "", "text": "561; Clark Distilling Co. v. Western Maryland Ry. Co., 242 U. S. 311, 325, et seq.; Whitfield v. Ohio, 297 U. S. 431; Kentucky Whip & Collar Co. v. Illinois Central R. Co., 299 U. S. 334, 350. Merchants Exchange v. Missouri, 248 U. S. 365, 368 (United States Warehouse Act permits state laws for inspection and weighing by specific direction of § 29, 39 Stat. 490; cf. Act of March 2, 1931, c. 366, 46 Stat. 1465); Whipple v. Martinson, 256 U. S. 41 (state regulates prescriptions of narcotics further than United States); Northwestern Bell Tel. Co. v. Nebraska Comm’n, 297 U. S. 471, 479 (telephone depreciation); Hartford Indemnity Co. v. Illinois, 298 U. S. 155, 159 (specific authority for state laws to continue in operation); Kelly v. Washington, 302 U. S. 1, 9 (state inspection of hulls omitted from federal inspection); South Carolina Hwy. Dept. v. Barnwell Bros., 303 U. S. 177, note 5 (state regulation of truck weight and width omitted from federal regulation by the federal Motor Carrier Act of 1935, 49 Stat. 546); Welch Co. v. New Hamp shire, 306 U. S. 79 (maximum hours of employees regulated by state prior to effective date of federal regulation); Eichholz v. Comm’n, 306 U. S. 268, 274 (intrastate transportation regulations infringed); Maurer v. Hamilton, 309 U. S. 598, 606 (state regulation of size and weight reserved from federal regulation). Frequently this Court has recognized the power of the state in such circumstances over other interstate carriers. Minnesota Rate Cases, 230 U. S. 352, 408, and cases cited; Erie R. Co. v. Williams, 233 U. S. 685; Erie R. Co. v. Public Utility Comm’rs, 254 U. S. 394, 409; Missouri Pacific R. Co. v. Norwood, 283 U. S. 249. Cf. 7 U. S. C. § 269 (1940); 29 U. S. C. § 160 (a) (1940). Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 437; Adams Express Co. v. Croninger, 226 U. S. 491, 505; New York Central R. Co. v. Winfield, 244 U. S. 147, 150; Oregon-Washington R. Co. v. Washington, 270" }, { "docid": "22325884", "title": "", "text": "in accordance with a comprehensive system of regulation enacted by Congress, the City of Detroit may not legislate in such a way as, in effect, to impose additional or inconsistent standards. Secondly, the argument is made that even if Congress has not expressly pre-empted the field, the municipal ordinance “materially affects interstate commerce in matters where uniformity is necessary.” We have concluded that neither of these contentions can prevail, and that the Federal Constitution does not prohibit application to the appellant's vessels of the criminal provisions of the Detroit ordinance. The ordinance was enacted for the manifest purpose of promoting the health and welfare of the city’s inhabitants. Legislation designed to free from pollution the very air that people breathe clearly falls within the exercise of even the most traditional concept of what is com-pendiously known as the police power. In the exercise of that power, the states and their instrumentalities may act, in many areas of interstate commerce and maritime activities, concurrently with the federal government. Gibbons v. Ogden, 9 Wheat. 1; Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299; The Steamboat New York v. Rea, 18 How. 223; Morgan v. Louisiana, 118 U. S. 455; The Minnesota Rate Cases, 230 U. S. 352; Wilmington Transp. Co. v. California Railroad Comm., 236 U. S. 151; Vandalia R. Co. v. Public Service Comm., 242 U. S. 255; Stewart & Co. v. Rivara, 274 U. S. 614; Welch Co. v. New Hampshire, 306 U. S. 79. The basic limitations upon local legislative power in this area are clear enough. The controlling principles have been reiterated over the years in a host of this Court’s decisions. Evenhanded local regulation to effectuate a legitimate local public interest is valid unless preempted by federal action, Erie R. Co. v. New York, 233 U. S. 671; Oregon-Washington Co. v. Washington, 270 U. S. 87; Napier v. Atlantic Coast Line, 272 U. S. 605; Missouri Pacific Co. v. Porter, 273 U. S. 341; Service Transfer Co. v. Virginia, 359 U. S. 171, or unduly burdensome on maritime activities or interstate commerce, Minnesota" }, { "docid": "22774535", "title": "", "text": "formulas “except in so far as the provisions of this Act may require to secure freedom from adulteration or misbranding” (§-8). We have already noted the limitations of the provisions referred to. And it is clear that this proviso merely relates to the interpretation of the requirements of the act, and does not enlarge its purview or establish a rule as to matters which lie outside its prohibitions. Is, then, a denial to the State of the exercise of its power for the purposes in question necessarily implied in the Federal statute? For when the question is whether a Federal act overrides a state law, the entire scheme of the statute must of course be considered and that which needs must be implied is of no less force than that which'is expressed. If the purpose of the act cannot otherwise be' accomplished — if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect — the state law must yield to the regulation of Congress within the sphere of its delegated power. Texas & Pacific Ry. Co. v. Abilene Cotton Oil Co., 204 U. S. 426; Northern Pacific Ry. Co. v. Washington, supra; Southern Ry. Co. v. Reid, supra. But the intent to supersede the exercise by the State of its police power as to matters not covered by the Federal legislation is not to be inferred from the mere fact that Congress has seen fit to circumscribe its regulation and to occupy a limited field. In other words, such intent is not to be implied unless the act of Congress fairly interpreted is in actual conflict with the law of the State. This principle has had abundant illustration. Chicago &c. Ry. Co. v. Solan, 169 U. S. 133; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613; Reid v. Colorado, 187 U. S. 137; Pennsylvania R. R. Co. v. Hughes, 191 U. S. 477; Crossman v. Lurman, 192 U. S. 189; Asbell v. Kansas, 209 U. S. 251; Northern Pacific Ry. Co. v. Washington, 222 U. S. 370," } ]

[ { "docid": "17974359", "title": "", "text": "de los Santos v. Immigration and Naturalization Service, 525 F.Supp. 655, 664 (S.D.N.Y.1981). As was stated in a recent Law Review article: Reliance on literal meaning is a wholly inadequate response to the problems and efforts of the law-drafter and law-giver.... A good faith, common sense effort to reconstruct the context and purpose is essential. Literal meaning is a wholly insufficient tool. Kernochan, Statutory Interpretation: An Outline of Method, 3 The Dalhousie L.J. 334 (1976). Section 365(d)(4) was enacted to enable a trustee to review a debtor’s executory contracts or leases, to assume those which are necessary to an effective reorganization, and to reject those which are burdensome. In re Steelship, 576 F.2d 128, 132 (8th Cir.1978). In order to minimize the hardship to those parties with whom the debtor has such a contract or lease, the trustee is required to act expeditiously. House Rep. No. 595, 95th Cong., 1st Sess. 348-9 (1977); Senate Report No. 989, 95th Cong., 2d Sess. 59 (1978), U.S. Code Cong. & Admin. News 1978, 5787. As a general rule, the trustee must either assume or reject the lease within 60 days of the order for relief or the lease will be deemed rejected. However, Congress recognized that there may be times when it is not possible for the trustee to make a careful and informed assessment of the benefits and burdens of the lease within this 60 day period. Accordingly, it empowered the court to grant a trustee who demonstrates cause for an extension additional time to make this assessment. Although the literal language of the statute requires that the extension be granted before the expiration of the 60 day period, the court finds that this provision was intended to assure that the trustee submit his request to the court within this period, and to preclude the court from extending the time for assumption upon an untimely application by the trustee. Accord, In re Capellen, 39 B.R. 40 (Bankr.S.D.Fla.1984). By requiring the trustee to make a decision concerning the lease within the 60 day period, or show cause why he needs additional time to" } ]

[ { "docid": "18561465", "title": "", "text": "appropriate month. The debtor defaulted on this rent obligation for the months of August and September, 1985. Upon the debtor’s default, the landlord instituted a summary proceeding for the non-payment of rent in the Third District Court, County of Suffolk, Huntington Part. This action was withdrawn upon the debtor’s tender of the rental sums then due the landlord. However, the landlord instituted the second summary proceeding noted above upon the debtor’s failure to pay its October, 1985, rent. DISCUSSION In its Memorandum of Law, the landlord frames the issue in dispute as whether this court can extend the debtor’s time to assume or reject the lease after the landlord has moved to compel the debtor’s assumption or rejection. However, the landlord’s assertion that it can so compel the debtor has no basis in any provision of the Code. Under 11 U.S.C. § 365(d)(2), a lessor may move to compel a debtor to assume or reject a residential real property lease only. In such a case, the lessor’s power to compel serves to relieve doubts relating to the lease’s status in the reorganization that may arise from a trustee’s power to assume or reject a residential real property lease at any time until the confirmation of the plan. H.R. No. 95-595, 95th Cong., 1st Sess. 348-9 (1977); see, S.R. No. 95-989, 95th Cong., 2d Sess. 59 (1978), U.S. Code Cong. & Admin.News 1978, p. 5787. In 11 U.S.C. § 365(d)(3) and (4), Congress has separately provided for the trustee’s assumption or rejection of a commercial lease. A trustee must decide whether to assume or reject a commercial lease within 60 days of the bankruptcy filing, or within such extended time as the bankruptcy court grants. See generally, 11 U.S.C. § 365(d)(4). However, neither § 365(d)(3) nor (d)(4) bestow upon the landlord the power it now seeks to exercise. This court must adhere to the literal requirements of an unambiguous statute, provided that such a literal reading would not produce absurd, unintended or manifestly unjust results. In re Unit Portions of Delaware, 53 B.R. 83, 84, 13 B.C.D. 635 (Bankr.E.D.N.Y.1985). Through the" }, { "docid": "23256690", "title": "", "text": "vacated the premises, the landlord could not get a new tenant because the trustee might later decide to assume the unexpired lease. On the other hand, if a chapter 11 debtor remained in possession of the premises before assumption, he was not liable for rent and, in the case of shopping center tenants, for common area charges. The landlord could eventually recover the reasonable value of the possession from the estate, but generally not until the plan was confirmed and administrative claimants were paid. Meanwhile, the landlord was forced to provide the use of his property, utilities, security and other services without current payment. See 130 Cong.Rec. S8891, S8894-95 (daily ed. June 29, 1984) (statement of Sen. Hatch), reprinted in 1984 U.S.Code Cong. & Ad.News, 590, 598-99. Congress recognized these problems and sought to remedy them by adding section 365(d)(4), with its sixty-day time limit for all unexpired leases of nonresidential real property, not just those involving a chapter 7 debtor. But there is no indication that Congress meant that section to prescribe the time in which the court had to act. Rather, the legislative history shows that Congress’s only concern was with the trustee, as evidenced by the following comments of Senator Hatch: Although in a chapter 7 case the bankruptcy code presently requires that the trustee decide whether to assume or reject an unexpired lease within 60 days after the bankruptcy petition is filed, there is no deadline for this decision in a chapter 11 case. Because of the unprecedented number of bankruptcy cases and the consequent delays in the bankruptcy courts, tenant space has been vacated for extended periods of time before the bankruptcy court forced the trustee to decide whether to assume or reject the lease.... [Section 365(d)(4)] would lessen the problems caused by extended vacancies and partial operation of tenant space by requiring that the trustee decide whether to assume or reject the nonresidential real property lease within 60 days after the order for relief in a case under any chapter. Id. (emphasis added). Thus, Congress’s intent was simply to force the trustee to make" }, { "docid": "3951965", "title": "", "text": "Suffice it to say that it is not a bona fide lease for purposes of the Bankruptcy Code. Section 365(d) requires “any unexpired lease of nonresidential real property” to be treated as follows: (3) The trustee shall timely perform all the obligations of the debtor, ... under any unexpired lease of nonresidential real property, until such lease is assumed or rejected____ (4) [I]f the trustee does not assume or reject an unexpired lease of nonresidential real property under which the debtor is the lessee within 60 days after the date of the order for relief, ... then such lease is deemed rejected, and the trustee shall immediately surrender such nonresidential real property to the lessor. 11 U.S.C. § 365(d)(3), (4) (Supp.III 1985). These subsections were added to the Bankruptcy Code in 1984 to provide a 60-day period in which a lease of real property must be assumed or rejected, and to require continued performance under a lease until the decision to assume or reject is made. Statement by Senator Orrin G. Hatch, on House Conference Report No. 98-882, June 29, 1984, reprinted in 1984 U.S.Code Cong. & Ad.News 590, 598-99. See generally 2 Collier on Bankruptcy (15th ed. 1986) ¶ 365.03[2], at 365-30 to 365-31. Although the legislative history provides us with the purpose of these subsections, there is little evidence available to assist us in determining what Congress envisioned by the term “lease of nonresidential real property.” The statute’s plain language offers little definition of those transactions that must be assumed or rejected, other than in section 365(m), which provides that “leases of real property shall include any rental agreement to use real property.” The term “lease of real property” does, however, appear elsewhere in the Code, in section 502(b)(6). The legislative history of section 502(b)(6) furnishes explicit authority for restricting the scope of that term to “bona fide” leases. Section 502(b)(6) limits the amount of damages that a landlord can recover upon breach or rejection of a lease of real property. “It was designed to compensate the landlord for his loss while not permitting a claim so large" }, { "docid": "1191817", "title": "", "text": "By-Rite Distributing, 55 B.R. at 743. Part of those adopted amendments included Section 365(d)(4). This section includes a sixty-day time limit for all unexpired leases of nonresidential real property which encompasses Chapter 11. In adopting Section 365(d)(4), Congress intended to shorten the trustee’s decision making process, not dictate court calendars: [Section 365(d)(4) ] would lessen the problems caused by extended vacancies and partial operation of tenant space by requiring that the trustee decide whether to assume or reject the nonresidential real property lease within 60 days after the order for relief in a case under any chapter. 130 Cong. Rec. S8891, S8894 (daily ed. June 29, 1984) (statement of Sen. Hatch), reprinted in 1984 U.S.Code Cong. & Ad. News 576, 590, 598; see By-Rite Distributing, 55 B.R. at 744. Although Congress extended a certain degree of protection to lessors, nothing remotely suggests that the shortened time period for a trustee’s decision to be made was intended to impact upon when a court approved same. In fact, the policy reasons underlying the payment of an administrative expense contradict any rule requiring prior court approval of a trustee’s rejection of an unexpired lease. Policy The presumption in bankruptcy cases is that the debtor’s limited resources will be equally distributed. In adopting Section 365, Congress intended to allow the trustee to assume with court approval only those leases which would benefit the estate, and conversely to reject those leases which were unprofitable. See In re Whitcomb & Keller Mortg. Co., 715 F.2d 375, 379 (7th Cir.1983) (quoting H.R.Rep. No. 595, 95th Cong., 1st Sess. 221 (1977), reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5963, 6181) (“[Sjuccessful reorganization under Chapter 11 depends on relieving the debtor of burdensome contracts and pre-petition debts so that ‘additional cash flow thus freed is used to meet current operating expenses.’ ”). Any such rejection conveys a two-fold benefit: (1) removing an unprofitable asset; and (2) reducing administrative expenses. These administrative expenses are “the actual, necessary costs and expenses of preserving the estate,” 11 U.S.C. § 503(b)(1)(A), and are paid as a first priority expense. 11 U.S.C. §" }, { "docid": "23459307", "title": "", "text": "to determine whether to assume or reject should be extended. Pursuant to § 365(d)(4), only upon the court finding cause can an extension be granted. Congress obviously did not intend the cause requirement to be lightly dismissed or blindly applied. Examination of the legislative history reveals that the requirement of cause was Congress’ focus. See, e.g., 130 Cong.Rec. S8891, S8894-95 (daily ed. June 29, 1984) (statement of Sen. Hatch), reprinted in 1984 U.S.Code Cong. & Ad.News 590, 598-601. As in this case, evidentiary hearings are scheduled and judges are expected to sift the evidence, examine applicable precedent and make informed rulings. At bottom, the courts, as they did under the former Bankruptcy Act in considering the tension between debtors-in-possession and landlords, are to “consider not only the interest of the landlord but also those of the debtor and its creditors”, Queens Boulevard Wine & Liquor Corp. v. Blum, 503 F.2d 202, 207 (2d Cir.1974), except that the burden has now been placed on the debtor-in-possession. In carrying out that judicial function, “no possible statutory purpose is served by terminating [an] estate’s interest in [a] lease merely because the court could not hear or decide the issue within the 60-day period.” Unit Portions, 53 B.R. at 85. Particularly is that so where a bankruptcy court, like this court, is faced with a voluminous calendar which requires a judge to hear, in addition to conducting trials and pretrial conferences, numerous motions, see In re Bygaph, Inc., 56 B.R. 596, 601 n. 3 (Bankr.S.D.N.Y.1986). Many of these are of an emergency nature or concern requests for preliminary injunctions which have priority pursuant to Rule 7065 of the Rules of Bankruptcy Procedure. Furthermore, a literal application of § 365(d)(4) could lead to the absurd result of causing an “estate to forfeit a potentially critical asset merely because the trustee’s motion was not decided until after the expiration of the 60 day period.” Unit Portions, 53 B.R. at 85. Written opinions in complex matters are desirable not only for the parties but also for the appellate courts in case an appeal is taken. Not every" }, { "docid": "22920788", "title": "", "text": "within the 60-day period, court approval may fall outside of that time. Cf. In re Avery Arnold Construction, Inc., supra, 11 B.R. at 34. Such a construction is contrary to the language and legislative history of Section 365. The automatic rejection mechanism of Section 365(d)(4), like that of Section 365(d)(1), was intended by Congress to resolve uncertainties between parties to leases concerning the status of the lease relationship, not to prolong them. See H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 348 (1977), 1978 U.S. Code Cong. & Admin. News, p. 6304. Section 365(d)(4) is an unambiguous expression of Congressional intent to remedy the plight of the landlord “who is unfortunate enough to have for its tenant an insolvent [debtor].” See Kennedy v. Boston-Continental National Bank, 11 F.Supp. 611, 616 (D.Mass.1935). As implemented by Bankruptcy Rule 6006, it requires the debt- or to take appropriate steps, including notice, a hearing, and court approval within the 60-day period in order to assume. Once the 60 days have expired without being extended for cause shown and without an assumption approved by the bankruptcy court, a lease is deemed rejected. The Court cannot agree to a construction of Section 365(d)(4) that would defeat the obvious intent of Congress and add delay and uncertainty to lease assumption decisions. The Court must also disagree with counsel’s contention that the filing of the motion to assume on the sixtieth day operates to extend the period for assumption or rejection. In order to obtain an extension of time to assume, Section 365(d)(4) requires that the matter be brought before the Court for determination within the 60-day period. Cf. Bankruptcy Rules 3002(c)(1), 4003(b), 4004(b), 4007(c), 8002(c), and 9006(b)(3); 11 U.S.C. § 362(e). Unless the motion for an extension of time to assume or reject is heard and granted within 60 days automatic rejection will occur. Upon a proper showing of cause, the bankruptcy court may enter an order extending the 60-day period upon the ex parte motion of the debtor in possession or trustee. See Texas & New Orleans Railroad Co. v. Phillips, supra, 196 F.2d at 694. The" }, { "docid": "11339726", "title": "", "text": "§ 365(d)(2) (1983). Congress became concerned about the practical consequences of Chapter 11 filings by tenants of shopping centers. It was particularly concerned that mall operators were facing periods of extended vacancies, that would last until such time as the bankruptcy courts would finally decide to take the initiative and force debtors to make a choice whether to assume or reject the leases. It was also concerned about the effects the extended vacancies were having on other tenants. See 130 Cong. Rec. S8891, S8894-95 (daily ed. June 29, 1984) (statement of Sen. Hatch), reprinted in 1984 U.S.Code Cong. & Admin.News 576, 590, 598-99. To address this problem, Congress added two provisions dealing specifically with nonresidential leases in Chapter 11 proceedings. Subsection (d)(3) requires the debtor to perform all lease obligations while deciding whether to assume, but permits the court to delay the debtor’s performance during the first 60 days after filing for reorganization. Subsection (d)(4) establishes the 60-day deadline for assumption or rejection, and imposes on the debtor the burden of petitioning the bankruptcy court for a change in the deadline. According to the legislative history, the so-called Shopping Center Amendments were expressly intended to lessen the problems caused by extended vacancies and partial operation of tenant space by requiring that the trustee decide whether to assume or reject nonresidential real property lease [sic] within 60 days after the order for relief in a case under any chapter. This time period could be extended by the court for cause, such as in exceptional cases involving large numbers of leases. 1984 U.S.Code Cong. & Admin.News at 599. This is the sole passage in the legislative history that addresses extensions of time. The second sentence discusses the requirement that the court find “cause” for the extension; there is no reference to any requirement that the bankruptcy judge make his finding within any particular period of time. Congress’ emphasis on cause for an extension, and its failure to mention any deadline within which the court must act, is fairly indicative of its intent. Congress was concerned that a properly supported motion for extension," }, { "docid": "9748053", "title": "", "text": "lessor. 11 U.S.C. § 365(d)(3)-(4). Those subsections impose two obligations on a trustee or debtor with respect to unexpired nonresidential leases. First, § 365(d)(3) makes clear that the debtor must perform all obligations owing under a lease — particularly the obligation to pay rent at the contract rate' — until the lease is rejected. Second, § 365(d)(4) requires a debtor or trustee to decide whether to assume or reject a lease within 60 days after the filing of a bankruptcy petition. If the trustee fails to act within 60 days, the lease is “deemed rejected” and the trustee must “immediately surrender such nonresidential real property to the lessor.” 11 U.S.C. § 365(d)(4). Those duties arose out of the so-called “Shopping Center Amendments” contained in the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 333 (1984). Through those amendments, Congress sought to protect the interests of commercial landlords who, compared to other creditors, were unfairly disadvantaged because they were forced to continue extending credit — in the form of rent — during the pendency of reorganization proceedings. See 130 Cong. Rec. S8891 (1984), reprinted in 1984 U.S.C.C.A.N. 590, 598-99 (statement of Sen. Hatch) (discussing problem). Specifically, Congress enacted the Shopping Center Amendments to tackle two main problems. “The first problem which [the Amendments] would remedy is the long-term vacancy or partial operation of space by a bankrupt tenant.” Id. at 598. Previously, a debtor could file a Chapter 11 bankruptcy petition and then maintain control of the leased property for the entire duration of the bankruptcy proceedings, even if the debtor had ceased operations and had vacated the premises. The automatic stay prevented the landlord from evicting the debtor or regaining possession of the leased space. The landlord lost money, and the extended vacancy hurt other tenants in the same shopping center as the bankrupt tenant because of decreased customer traffic. Id. at 599. “A second and related problem is that during the time the debtor has vacated space but has not yet decided whether to assume or reject the lease, the trustee has stopped making" }, { "docid": "18594553", "title": "", "text": "that the debtor has established cause for the extension and hereby grants the debtor until April 17, 1986 to assume or reject the lease. It is SO ORDERED. . This court need decide whether the landlord's acts constitute a termination of the lease as contemplated by the Code, see P.L. 98-353, Statement by the Hon. Orrin G. Hatch, 130 Cong.R. S8891, June 29, 1984, 3 U.S.Code Cong. & Ad.News 590, 600, only if it answers the threshold inquiry in the affirmative. . Article XIX, Section 19.02, defines “Deliberate Events of Default\" as follows: (a) Notwithstanding anything to the contrary set forth in this Lease, if Tenant shall default (1) in the timely payment of Fixed Minimum Rent, Percentage Rent, Tax Rent, Tenant’s proportionate share of Operating Costs, the Utility Charge, or Promotion Charge or in the timely reporting of Gross Sales or any of them, and any such default shall be repeated two (2) times in any period of twelve (12) months; or (2) in the performance of any other covenant of this Lease more than three (3) times in any period of twelve (12) months, then, notwithstanding that such defaults shall have been cured within the period after notice as above provided, any further similar default within such twelve (12) month period shall be deemed to be a Deliberate Event of Default. .Since the lease has not been properly terminated, this court need not address itself to the issue raised by the parties as to whether the issuance of a warrant of eviction was necessary to terminate the landlord-tenant relationship. . The debtor filed an order for relief on October 24, 1985. The debtor then cross-moved to extend the time to assume or reject the Lease on November 29, 1985, within the statutory 60-day period. . This court rejects the notion that it should grant the debtor an open-ended extension to expire upon the confirmation of the Chapter 11 plan. With the enactment of § 365(d)(4), Congress clearly expressed its intent that such a result is untenable. However, since § 365(d)(4) enables the debtor to seek additional time within" }, { "docid": "1191816", "title": "", "text": "not he still had a tenant and could start collecting rent again. A chapter 11 trustee, on the other hand, could wait almost indefinitely— till confirmation of the plan — to decide to assume the lease; in the meantime, the landlord was left in limbo. In re By-Rite Distributing, Inc., 55 B.R. 740, 743 (D.C.Utah 1985). If the debtor had vacated the premises, for example, the landlord could not get a new tenant because the trustee might later decide to assume the unexpired lease. This situation was especially serious in shopping center scenarios, where a vacancy in one store hurt all the other tenants because of the reduced customer traffic in the center as a whole. In fact, Congress intended to remedy the problems caused shopping centers and their solvent tenants arising from the administration of the Code, by adopting what are commonly referred to as the “shopping center bankruptcy amendments.” 130 Cong.Rec. S8891, S8894 (daily ed. June 29, 1984) (statement of Sen. Hatch), reprinted in 1984 U.S.Code Cong. & Ad.News 576, 590, 598; see By-Rite Distributing, 55 B.R. at 743. Part of those adopted amendments included Section 365(d)(4). This section includes a sixty-day time limit for all unexpired leases of nonresidential real property which encompasses Chapter 11. In adopting Section 365(d)(4), Congress intended to shorten the trustee’s decision making process, not dictate court calendars: [Section 365(d)(4) ] would lessen the problems caused by extended vacancies and partial operation of tenant space by requiring that the trustee decide whether to assume or reject the nonresidential real property lease within 60 days after the order for relief in a case under any chapter. 130 Cong. Rec. S8891, S8894 (daily ed. June 29, 1984) (statement of Sen. Hatch), reprinted in 1984 U.S.Code Cong. & Ad. News 576, 590, 598; see By-Rite Distributing, 55 B.R. at 744. Although Congress extended a certain degree of protection to lessors, nothing remotely suggests that the shortened time period for a trustee’s decision to be made was intended to impact upon when a court approved same. In fact, the policy reasons underlying the payment of an administrative" }, { "docid": "18594552", "title": "", "text": "reasoned decision as to the need for an extension. This court cannot read § 365(d)(4) so strictly as to encourage such absurd results. See, Unit Portions, 53 B.R. at 85. Furthermore, such a conclusion would run contrary to Congress’ intent to weed unnecessary delay out of the trustee’s decision to assume or reject. 3 U.S. Code Cong. & Ad.News at 598-99 (1984). This court is cognizant of the delays that can stem from the trustee’s failure to pursue the assumption or rejection of the unexpired lease. Thus, the trustee will only be granted additional time within which to make its decision for cause, where the trustee is unable to make a careful and informed assessment of the lease’s benefits and burdens to the estate within the 60 day period. Unit Portions, 53 B.R. at 85. Accordingly, this court finds that the debtor’s cross-motion, brought within the statutory 60-day period, tolls for the purposes of § 365(d)(4) the running of the court’s time to grant the debtor’s request for an extension. In addition, the court finds that the debtor has established cause for the extension and hereby grants the debtor until April 17, 1986 to assume or reject the lease. It is SO ORDERED. . This court need decide whether the landlord's acts constitute a termination of the lease as contemplated by the Code, see P.L. 98-353, Statement by the Hon. Orrin G. Hatch, 130 Cong.R. S8891, June 29, 1984, 3 U.S.Code Cong. & Ad.News 590, 600, only if it answers the threshold inquiry in the affirmative. . Article XIX, Section 19.02, defines “Deliberate Events of Default\" as follows: (a) Notwithstanding anything to the contrary set forth in this Lease, if Tenant shall default (1) in the timely payment of Fixed Minimum Rent, Percentage Rent, Tax Rent, Tenant’s proportionate share of Operating Costs, the Utility Charge, or Promotion Charge or in the timely reporting of Gross Sales or any of them, and any such default shall be repeated two (2) times in any period of twelve (12) months; or (2) in the performance of any other covenant of this Lease more" }, { "docid": "23256689", "title": "", "text": "not paid until later, when other administrative claims were satisfied. In a chapter 7 case, on the other hand, “if the trustee [did] not assume or reject an ... unexpired lease of the debtor within 60 days after the order for relief, or within such additional time as the court, for cause, within such 60-day period, fixes, then such ... lease [was] deemed rejected.” 11 U.S.C. § 365(d)(1) (amended 1984). This disparate treatment of chapter 7 and chapter 11 cases led to inequitable results. A trustee in a chapter 7 case had to decide within sixty days after the bankruptcy petition was filed whether or not to assume the lease. Thus, within a reasonable time the landlord of a chapter 7 debtor knew whether or not he still had a tenant and could start collecting rent again. A chapter 11 trustee, on the other hand, could wait almost indefinitely — till confirmation of the plan — to decide to assume the lease; in the meantime, the landlord was left in limbo. If the debtor had vacated the premises, the landlord could not get a new tenant because the trustee might later decide to assume the unexpired lease. On the other hand, if a chapter 11 debtor remained in possession of the premises before assumption, he was not liable for rent and, in the case of shopping center tenants, for common area charges. The landlord could eventually recover the reasonable value of the possession from the estate, but generally not until the plan was confirmed and administrative claimants were paid. Meanwhile, the landlord was forced to provide the use of his property, utilities, security and other services without current payment. See 130 Cong.Rec. S8891, S8894-95 (daily ed. June 29, 1984) (statement of Sen. Hatch), reprinted in 1984 U.S.Code Cong. & Ad.News, 590, 598-99. Congress recognized these problems and sought to remedy them by adding section 365(d)(4), with its sixty-day time limit for all unexpired leases of nonresidential real property, not just those involving a chapter 7 debtor. But there is no indication that Congress meant that section to prescribe the time" }, { "docid": "8934802", "title": "", "text": "initial sixty-day period, automatic rejection of the unexpired lease will occur. Heerey claims that the decision in By-Rite and its interpretation of section-365(d)(4) support his argument that the lease herein has been rejected by operation of law. Heerey states that prior to the April 4th hearing, Bon Ton and Heerey had reached an oral agreement that Bon Ton would ask for a sixty-day extension of time to assume the lease. However, because court approval was not granted before this alleged sixty-day extension expired, and because Bon Ton could have taken the necessary steps to assume the lease within that time, the lessor argues it can now invoke section 365(d)(4) to deem the lease rejected. Court Approval and The Act of Assumption In the context of section 365(d)(1), there is no requirement that court approval occur within the sixty-day limitation imposed so long as the trustee has “acted” within that time period. See In re Price Chopper Supermarkets, Inc., 19 B.R. 462 (Bankr.S.D.Ca.1982); In re Avery Arnold Constr. Inc., 11 B.R. 34 (Bankr.S.D.Fla.1981). The policy behind section 365 is to prevent parties in contractual or lease relationships with the debtor from being left in doubt concerning their status vis-a-vis the estate. H.R.Rep. No. 95-595, 95th Cong., 2nd Sess. 348, (1977) reprinted in U.S. Code Cong. & Admin.News 5963, 6304 (1978); S.Rep. No. 95-989, 95th Cong., 2nd Sess. 59 (1978) reprinted in U.S.Code Cong. & Admin.News 5787, 5845 (1978). The legislative history to section 365(d)(4) in particular indicates that the trustee must elect to assume within the sixty-day period: ... Although in a chapter 7 case the bankruptcy code presently requires that the trustee decide whether to assume or reject an unexpired lease within 60 days after the bankruptcy petition is filed, there is no deadline for this decision in a chapter 11 case. The bill would lessen the problems caused by extended vacancies and partial operation of tenant space by requiring that the trustee decide whether to assume or reject the nonresidential real property lease within 60 days after the order for relief in a case under any chapter. 130 Cong.Rec." }, { "docid": "23459306", "title": "", "text": "or debtor-in-possession could assume or reject all executory contracts and unexpired leases at any time before confirmation of a plan of reorganization unless the court, on request of any party to the contract or lease, ordered that the determination be made sooner. 11 U.S.C. § 365(d)(2) (1978); see Theatre Holding Corp. v. Mauro, 681 F.2d 102 (2d Cir.1982). If the lease were rejected, the landlord received an administrative claim for the reasonable value of the trustee’s use and occupancy of the premises, an amount that was often but not necessarily the rent set forth in the lease. In 1984, Congress, concerned with the uncertainty of the rental provision and the unfairness of placing the burden of persuasion on landlords, addressed these issues. First, it added § 365(d)(3) to confirm that the trustee’s obligation is to pay rent as set forth in a commercial lease. Second, it carved out commercial leases from the provisions of 11 U.S.C. § 365(d)(2) and added § 365(d)(4). It thereby placed the burden on debtors-in-possession to show cause why the time to determine whether to assume or reject should be extended. Pursuant to § 365(d)(4), only upon the court finding cause can an extension be granted. Congress obviously did not intend the cause requirement to be lightly dismissed or blindly applied. Examination of the legislative history reveals that the requirement of cause was Congress’ focus. See, e.g., 130 Cong.Rec. S8891, S8894-95 (daily ed. June 29, 1984) (statement of Sen. Hatch), reprinted in 1984 U.S.Code Cong. & Ad.News 590, 598-601. As in this case, evidentiary hearings are scheduled and judges are expected to sift the evidence, examine applicable precedent and make informed rulings. At bottom, the courts, as they did under the former Bankruptcy Act in considering the tension between debtors-in-possession and landlords, are to “consider not only the interest of the landlord but also those of the debtor and its creditors”, Queens Boulevard Wine & Liquor Corp. v. Blum, 503 F.2d 202, 207 (2d Cir.1974), except that the burden has now been placed on the debtor-in-possession. In carrying out that judicial function, “no possible statutory purpose" }, { "docid": "3531792", "title": "", "text": "after the bankruptcy petition is filed, there is no deadline for this decision in a chapter 11 case. Because of the Unprecedented number of bankruptcy cases and the consequent delays in the bankruptcy courts, tenant space has been vacated for extended periods of time before the bankruptcy court forced the trustee to decide whether to assume or reject the lease. During this time, the other tenants of the shopping center are hurt because of the reduced customer traffic in the shopping center. Tenants and landlords in other nonresidential structures have encountered similar problems. The bill would lessen the problems caused by extended vacancies and partial operation of tenant space by requiring that the trustee decide whether to assume or reject non-residential real property lease within 60 days after the order for relief in a case under any chapter. This time period could be extended by the court for cause, such as in exceptional cases involving large numbers of leases. One of the minor changes in this subtitle was to limit it to non-residential real property leases. If the lease is not assumed or rejected within this 60-day period, or any additional period granted by the court, the lease is deemed rejected and the trustee must immediately surrender the property to the lessor. 130 Cong.Rec.S. 8894-8895, reprinted at 1984 U.S.Code Cong. & Ad.News 576, 598-601. This proceeding does not present the problem that § 365(d)(4) was designed to remedy. The debtor has not vacated the leased premises and wishes to assume the lease, not to assign it. There will be no problem of disruption of the shopping center’s business. To allow the landlord to terminate the lease in this case would not serve the purpose of Congress in enacting § 365(d)(4), but only permit the landlord to take advantage of what appears to be a lawyer’s miscalculation. The landlord had already received the debtor’s motion to assume the lease when he filed his motion for possession of the premises, and he has not claimed any detriment attributable to the debtor’s late filing. - Section 70b of the Act of 1898 (the" }, { "docid": "8934803", "title": "", "text": "section 365 is to prevent parties in contractual or lease relationships with the debtor from being left in doubt concerning their status vis-a-vis the estate. H.R.Rep. No. 95-595, 95th Cong., 2nd Sess. 348, (1977) reprinted in U.S. Code Cong. & Admin.News 5963, 6304 (1978); S.Rep. No. 95-989, 95th Cong., 2nd Sess. 59 (1978) reprinted in U.S.Code Cong. & Admin.News 5787, 5845 (1978). The legislative history to section 365(d)(4) in particular indicates that the trustee must elect to assume within the sixty-day period: ... Although in a chapter 7 case the bankruptcy code presently requires that the trustee decide whether to assume or reject an unexpired lease within 60 days after the bankruptcy petition is filed, there is no deadline for this decision in a chapter 11 case. The bill would lessen the problems caused by extended vacancies and partial operation of tenant space by requiring that the trustee decide whether to assume or reject the nonresidential real property lease within 60 days after the order for relief in a case under any chapter. 130 Cong.Rec. S8894-95 (remarks of Senator Hatch) reprinted in U.S.Code Cong. & Admin.News 599 (1984) (emphasis added). However, no time constraints exist under section 365(d)(4) or section 365(a) for the entry of court approval sanctioning a trustee’s decision to assume or reject an unexpired lease. Moreover, to hold that a trustee who has acted to assume within the sixty-day period is nevertheless deemed to have rejected an unexpired lease merely because no express order approving the assumption was entered prior to the expiration of the sixty-day period, or any extension thereof, would lead to an anomalous result. Section 365(d)(4) may not be used by a lessor in such a situation to recapture a lease and obtain a windfall to which he may not be equitably entitled. See Queens Boulevard Wine & Liquor Corp. v. Blum, 503 F.2d 202, 206-207 (2d Cir.1974). Bon Ton had taken the requisite steps to assume its unexpired lease of nonresidential real property under section 365(a) and section 365(d)(4). By filing its motion within 60 days of the commencement of its case and" }, { "docid": "23459305", "title": "", "text": "look beyond the language where a literal reading would produce absurd, unintended, or manifestly unjust results”). Briefly put, the issue here is simply whether Congress had, in Judge Learned Hand’s words, an underlying purpose inconsistent with the literal wording of that phrase in § 365(d)(4) indicating that the extension must be ordered before the end of the 60-day period. Upon analysis of the 1984 restructuring of § 365 of the Code accomplished by Pub.L. No. 98-353, review of the legislative history, examination of the task Congress assigned to the bankruptcy courts in § 365(d)(4) and identification of the results that would flow from its literal interpretation, we hold that an order granting an extension need not be entered within the period so long as the motion was timely made. To hold to the contrary would be to undermine the principal purpose Congress sought to achieve in enacting § 365(d)(4). Prior to the 1984 amendments, unexpired commercial leases were treated similar to all other executory contracts and unexpired leases. In a Chapter 11 case, a trustee or debtor-in-possession could assume or reject all executory contracts and unexpired leases at any time before confirmation of a plan of reorganization unless the court, on request of any party to the contract or lease, ordered that the determination be made sooner. 11 U.S.C. § 365(d)(2) (1978); see Theatre Holding Corp. v. Mauro, 681 F.2d 102 (2d Cir.1982). If the lease were rejected, the landlord received an administrative claim for the reasonable value of the trustee’s use and occupancy of the premises, an amount that was often but not necessarily the rent set forth in the lease. In 1984, Congress, concerned with the uncertainty of the rental provision and the unfairness of placing the burden of persuasion on landlords, addressed these issues. First, it added § 365(d)(3) to confirm that the trustee’s obligation is to pay rent as set forth in a commercial lease. Second, it carved out commercial leases from the provisions of 11 U.S.C. § 365(d)(2) and added § 365(d)(4). It thereby placed the burden on debtors-in-possession to show cause why the time" }, { "docid": "18561467", "title": "", "text": "establishment of the 60 day period, Congress sought to expedite the trustee’s decision to assume or reject; however, there is no indication that Congress intended to endow a lessor with a mechanism for harassing the trustee into making a hasty and ill-advised determination prior to the expiration of the statutory period. See, Statement by the Honorable Orrin G. Hatch, P.L. 98-353, 130 Cong.R. S8891, 3 U.S.Code Cong. & Ad.News 576, 598-601 (1984). Accordingly, this court finds the landlord’s motion to compel incongruous with existing bankruptcy law and, as such, denies the motion. The landlord can attempt to quicken the assumption process through its opposition to the debtor’s motion to extend the statutory 60-day period. This court may grant such an extension for cause where the trustee has demonstrated that it cannot accurately assess the value of the lease to the estate within the prescribed 60-day period. Unit Portions, 53 B.R. at 85. In the present case, the debtor asserts two grounds upon which such relief is required: 1) the debtor requires additional time to assess the profitability of this location during the “busy season” between Christmas and the end of March; and, 2) the debtor is in the midst of negotiations with third parties to obtain loans which will be used to provide working capital and satisfy post-petition rent obligations. The landlord has not sufficiently refuted this showing of cause through its assertions that it has incurred the burdens of upkeep as well as the loss of a prospective lessee for the premises. The Code provides the landlord with an avenue for relief should the debtor reject the lease, see generally 11 U.S.C. § 365(g). Additional safeguards within the Code dictate that prior to the trustee’s assumption of the lease, the landlord be made whole for damages due to debtor’s default. See generally, 11 U.S.C. § 365(b). Furthermore, the landlord’s claim that the debtor’s chances of obtaining financing are “slim at best” is mere speculation and hardly an invalidation of the debtor’s showing of cause. Accordingly, this court grants the debtor’s cross-motion to extend the statutory period in which it" }, { "docid": "18561466", "title": "", "text": "to the lease’s status in the reorganization that may arise from a trustee’s power to assume or reject a residential real property lease at any time until the confirmation of the plan. H.R. No. 95-595, 95th Cong., 1st Sess. 348-9 (1977); see, S.R. No. 95-989, 95th Cong., 2d Sess. 59 (1978), U.S. Code Cong. & Admin.News 1978, p. 5787. In 11 U.S.C. § 365(d)(3) and (4), Congress has separately provided for the trustee’s assumption or rejection of a commercial lease. A trustee must decide whether to assume or reject a commercial lease within 60 days of the bankruptcy filing, or within such extended time as the bankruptcy court grants. See generally, 11 U.S.C. § 365(d)(4). However, neither § 365(d)(3) nor (d)(4) bestow upon the landlord the power it now seeks to exercise. This court must adhere to the literal requirements of an unambiguous statute, provided that such a literal reading would not produce absurd, unintended or manifestly unjust results. In re Unit Portions of Delaware, 53 B.R. 83, 84, 13 B.C.D. 635 (Bankr.E.D.N.Y.1985). Through the establishment of the 60 day period, Congress sought to expedite the trustee’s decision to assume or reject; however, there is no indication that Congress intended to endow a lessor with a mechanism for harassing the trustee into making a hasty and ill-advised determination prior to the expiration of the statutory period. See, Statement by the Honorable Orrin G. Hatch, P.L. 98-353, 130 Cong.R. S8891, 3 U.S.Code Cong. & Ad.News 576, 598-601 (1984). Accordingly, this court finds the landlord’s motion to compel incongruous with existing bankruptcy law and, as such, denies the motion. The landlord can attempt to quicken the assumption process through its opposition to the debtor’s motion to extend the statutory 60-day period. This court may grant such an extension for cause where the trustee has demonstrated that it cannot accurately assess the value of the lease to the estate within the prescribed 60-day period. Unit Portions, 53 B.R. at 85. In the present case, the debtor asserts two grounds upon which such relief is required: 1) the debtor requires additional time to assess" }, { "docid": "22920787", "title": "", "text": "the right to assume an unexpired lease’ before court approval will be granted. Matter of Truffles of Sarasota, Inc., 30 B.R. 666, 669 (Bkrtcy.M.D.Fla.1983). In this Court’s view, “assumption” and “approval” under Section 365(a) are correlative terms, that is, mutually interdependent and occurring in conjunction with one another. Assumption presupposes approval by the bankruptcy court. It is the opinion of this Court that assumption of an unexpired lease of nonresidential real property as contemplated by Section 365(d)(4) consists of three elements: (1) a conscious and deliberate decision on the part of the debtor in possession or trustee to assume, whether that decision is manifested by words, conduct, or a paper filed with the court; (2) the ability, as determined by the Court after notice and a hearing, to satisfy the cure, compensate, and adequate assurance requirements of Section 365(b)(1)(A), (B), and (C); and (3) a manifestation of judicial approval by the bankruptcy court. The Court rejects counsel’s argument that so long as the motion to assume an unexpired lease of nonresidential real property is filed within the 60-day period, court approval may fall outside of that time. Cf. In re Avery Arnold Construction, Inc., supra, 11 B.R. at 34. Such a construction is contrary to the language and legislative history of Section 365. The automatic rejection mechanism of Section 365(d)(4), like that of Section 365(d)(1), was intended by Congress to resolve uncertainties between parties to leases concerning the status of the lease relationship, not to prolong them. See H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 348 (1977), 1978 U.S. Code Cong. & Admin. News, p. 6304. Section 365(d)(4) is an unambiguous expression of Congressional intent to remedy the plight of the landlord “who is unfortunate enough to have for its tenant an insolvent [debtor].” See Kennedy v. Boston-Continental National Bank, 11 F.Supp. 611, 616 (D.Mass.1935). As implemented by Bankruptcy Rule 6006, it requires the debt- or to take appropriate steps, including notice, a hearing, and court approval within the 60-day period in order to assume. Once the 60 days have expired without being extended for cause shown and without an" } ]

[ { "docid": "22446831", "title": "", "text": "complaints to the EEO officer, any belief that Spellman and Strong would be effective conduits for complaints is even more unreasonable. As we said in Perry, “the law against sexual harassment is not self-enforcing” and an employer cannot be expected to correct harassment unless the employee makes a concerted effort to inform the employer that a problem exists. Perry, 126 F.3d at 1014. Accordingly, the district court correctly held that Civil Constructors had no notice or knowledge of Parkins’ harassment until August 23, 1996, and that Civil Constructors effectively corrected the harassment when complaints were made to the Union and transmitted to its EEO officer. C. Retaliation Parkins also contends that Civil Constructors retaliated against her for reporting the harassment by ostracizing her, laying her off early in November 1996, and failing to recall her in April 1997. Title VII prohibits retaliation against an employee who has engaged in activity protected by the Act. 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation Parkins must show that (1) she engaged in statutorily protected activity; (2) she suffered an adverse employment action; and (3) there is a causal link between the protected activity and the adverse action. Debs v. Northeastern Ill. Univ., 153 F.3d 390, 397 (7th Cir.1998). If she establishes these elements, Civil Constructors has the burden to produce a legitimate, nondiscrimi natory reason for its actions. Once this reason is produced, Parkins must prove that the reason is pretextual. See id. We quickly dispatch Parkins’ complaints about ostracism by her fellow workers. Previously, we suggested that an adverse employment action might occur when an employer orders its employees to shun the plaintiff, provided that this activity causes material harm to the plaintiff. See McKenzie v. Illinois Dep’t of Transp., 92 F.3d 473, 485 (7th Cir.1996); accord Flannery v. Trans World Airlines, Inc., 160 F.3d 425, 428 (8th Cir.1998) (shunning is not an adverse employment action where the plaintiff did not allege that the ostracism resulted in a reduced salary, benefits, seniority, or responsibilities); Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 693 (8th Cir.1997) (ostraeization" } ]

[ { "docid": "22931668", "title": "", "text": "from the register from which the Certificate was generated. In short, there were no facts supporting a finding in Brown’s favor with respect to Baldwin’s promotion. B. Brown also claimed that she was denied each of the nine promotions as a form of retaliation for her outspoken opposition to discrimination, and specifically for her testimony on at least four occasions between 1992 and 2004 in the Reynolds litigation. We need not address whether the evidence supported a claim of retaliation with respect to the promotions of Mahaffey, Glass, or Estes, having already concluded that there was sufficient evidence to support a jury finding of discrimination in the failure to promote the plaintiff. And the remedy for the retaliatory claims would be exactly the same. We do, however, examine the sufficiency of the evidence concerning the plaintiffs claims of retaliation as to the remaining six promotions — those of Rowe, Estes, Reynolds, Rhoden, Tolbert, and Baldwin. These retaliatory claims fail for insufficient evidence. The McDonnell Douglas burden-shifting analysis applies in cases of retaliation relying on circumstantial evidence, such as this one. Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir.2009). As we recently explained, the prima facie case for retaliation requires the employee to show that: (1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment action; and (3) he established a causal link between the protected activity and the adverse action. These three elements create a presumption that the adverse action was the product of an intent to retaliate. Once a plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the defendant to rebut the presumption by articulating a legitimate, non-discriminatory reason for the adverse employment action. If the defendant carries this burden of production, the presumption raised by the prima facie ease is rebutted and drops from the case. After the defendant makes this showing, the plaintiff has a full and fair opportunity to demonstrate that the defendant’s proffered reason was merely a pretext to mask discriminatory actions. Id. at 1307-08 (internal citations and quotation marks omitted). There is no" }, { "docid": "8617132", "title": "", "text": "indices that might be unique to a particular situation.” Id. This is not an exhaustive list, however, because “adverse actions can come in many shapes and sizes____The law does not take a ‘laundry list’ approach to retaliation, because ... its forms are as varied as the human imagination will permit.” Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir.1996). However, “not everything that makes an employee unhappy is an actionable adverse action.” Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996). At the outset we note that there is no question regarding the first element of the prima facie case. Savino has clearly engaged in. statutorily protected activity in complaining against Popper, first to C.P. Hall, and then to the E.E.O.C. Damato v. Jack Phelan Chevrolet Geo, Inc., 927 F.Supp. 283, 288 (N.D.Ill.1996) (finding that even an informal complaint to a supervisor would constitute protected activity). The critical issues are whether Savino can otherwise establish a prima facie case of retaliation, and whether she can rebut C.P. Hall’s proffered explanations for failing to promote her and denying her an “anniversary” raise. We address each possible claim of retaliation in turn. 1. The Regional Accountant Position at the 7300 Facility Savino claims that she suffered an adverse job consequence when C.P. Hall failed to promote her into the position of Regional Accountant. As Savino did not interview for this position, nor has she shown that she was more qualified than Morrow, we find that the only tenable “adverse job consequence” suffered by Savino is that she was not notified of the position and given the opportunity to interview for it. Assuming that this failure to notify or interview is, in fact, an adverse consequence, Savino’s retaliation claim fails because: 1) she has not shown that there is any causal connection between her complaint and the action; 2) even if she did, C.P. Hall has provided ample evidence that it had a legitimate, non-discriminatory reason for not notifying or interviewing Savino; and 3) Savino has failed to provide any evidence that C.P. Hall’s reasons were merely pretext. First, with regard" }, { "docid": "10014422", "title": "", "text": "a variant of the McDonnell Douglas burden-shifting method. To establish a prima facie case of retaliation, Haywood must show that: (1) she engaged in statutorily-protected expression; (2) she suffered an adverse employment action; and (3) there is a causal link between the protected expression and the adverse employment action. Eiland v. Trinity Hosp., 150 F.3d 747, 753 (7th Cir.1998). Once Haywood establishes her prima facie case, Lucent has the burden of producing a valid, non-retaliatory reason for its action. See Sanchez v. Henderson, 188 F.3d 740, 746 (7th Cir.1999). In order to prevail, Haywood must then rebut Lucent’s proffered reason by establishing that it is merely pretextual. Id. Lucent does not address the first element of Haywood’s prima facie case; thus, the court will assume that Haywood has established that she engaged in a statutorily protected activity. However, Lu-cent argues that Haywood has failed to established the second and third elements of her prima facie case because (a) any alleged delay in transferring her to another department in July 1999 does not constitute an adverse employment action, and (b) Haywood cannot establish a causal connection between her February 1999 EEOC charge and either the alleged transfer delay in July 1999 or her employment termination in December 1999. As discussed below, the court finds that Haywood has failed to establish the third element of her prima facie case, the required causal link between the adverse employment action and the protected activity. Because the court finds that Haywood has failed to establish the third element of her prima facie case, the court need not address the second element of her prima facie case, whether Haywood has sufficiently alleged that she suffered from an adverse employment action. To demonstrate the causal link, a plaintiff must show that the defendant would not have taken the adverse action “but for” the protected behavior. McKenzie v. Ill. Dept. of Transp., 92 F.3d 473, 483 (7th Cir.1996). A plaintiff can establish the causal link by showing that there was a suspiciously short period of time between her complaint and the adverse employment action. Parkins v. Civil Constructors" }, { "docid": "10545124", "title": "", "text": "submit all of her written communications to Bain for approval, that she was given diffi cult assignments with short turn around times, and that she was denied a pay increase. These allegations are merely endemic to an employee who reports to a supervisor. Once Bain’s appointment as her superior was held to be non-discriminatory, the indirect effect that this new position had on Mackey’s responsibilities and authority must also be considered discrimination free. III. Retaliation To establish a prima facie claim of retaliation in violation of Title VII, a plaintiff must show that (1) she engaged in protected activity; (2) the defendant took an adverse employment action against her; and (3) a causal connection existed between the protectéd activity and the adverse action. Laughlin v. Metropolitan Washington Airports Authority, 149 F.3d 253, 258 (4th Cir.1998). The defendant may then rebut the prima facie case by showing that there was a legitimate nondiscriminatory reason for the adverse action, Munday v. Waste Management of North America, Inc., 126 F.3d 239, 242 (4th Cir.1997), after which the burden shifts back to the plaintiff to show that those reasons- are pretextual. Id. Defendant argues that Mackey’s retaliation claim must be dismissed because she failed to allege that she suffered an adverse employment action as a result of her protected activity. In particular, Defendant claims that her reassignment to the Division of the Extramural Programs in February of 1985 did not constitute an “adverse employment action” because it did not involve an “ultimate decision,” such as hiring, granting leave, discharging, promoting, or compensating. The Fourth Circuit, in defining what constitutes an adverse employment action, has “consistently focused on the question of whether there has been discrimination in what could be characterized as ultimate employment decisions, such .as hiring, granting leave, discharging, promoting, and compensating.” Page v. Bolger, 645 F.2d 227, 233 (4th Cir.1981). Defendant claims that this interpretation of an adverse employment action would preclude a reassignment and transfer because they are only mediate actions. However, the Fourth Circuit has not specifically addressed whether a reassignment can be considered an adverse employment action. But see" }, { "docid": "23201343", "title": "", "text": "shifting burdens in Title VII discrimination and retaliation cases. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Yartzoff v. Thomas, 809 F.2d 1371, 1375 (9th Cir.1987). The plaintiff bears the initial burden of establishing a prima facie case. To state a prima facie case of discrimination, a plaintiff must show that: (1) she belongs to a protected class, (2) she was performing according to her employer’s legitimate expectations, (3) she suffered an adverse employment action, and (4) other employees with qualifications similar to her own were treated more favorably. Godwin, 150 F.3d at 1220. In order to make out a prima facie case of retaliation, a plaintiff must show that (1) she was engaging in protected activity, (2) the employer subjected her to an adverse employment decision, and (3) there was a causal link between the protected activity and the employer’s action. Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754, 755 (9th Cir.1997). The parties do not dispute that Bergene and her husband have satisfied their burden of establishing a prima facie case of both discrimination and retaliation in connection with the denial of the promotion. The burden therefore shifts to SRP to produce evidence that Bergene was denied the promotion for a legitimate, nondiscriminatory reason. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). The parties agree that SRP has advanced a reason for denying Bergene the promotion. SRP claims that it chose DeGraff rather than Bergene for the electrical foreman position because he was better-qualified, as evidenced by the higher rankings that Pratt assigned him on several criteria. The burden then shifts back to Bergene to show that SRP’s proffered reason was a pretext for discrimination. See id. at 256, 101 S.Ct. 1089; Godwin, 150 F.3d at 1220. The critical issues at this stage, therefore, are whether Bergene has produced sufficient evidence to raise a triable issue of fact as to whether the reason proffered by SRP for denying her the promotion was a pretext for unlawful retaliation" }, { "docid": "4426411", "title": "", "text": "analyzing plaintiffs retaliation claim the Court applies the familiar McDonnell Douglas shifting burden of proof, set forth above. In order to establish a prima facie case of retaliation under Title VII, plaintiff must show that (1) she engaged in protected opposition to Title VII discrimination; (2) she suffered an adverse employment action contemporaneous with or subsequent to such opposition or participation; and (3) a casual connection links the protected activity and the adverse employment action. See Penry v. Federal Home Loan Bank of Topeka, 155 F.3d 1257, 1263 (10th Cir.1998); Thomas, 111 F.3d at 1513. Plaintiff can establish the causal connection by “evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.” Burrus, 683 F.2d at 343. Defendant concedes that plaintiff can establish a prima facie case of retaliation based on the filing of her administrative charge. After plaintiff establishes a prima facie case of retaliation, the burden shifts to KU to offer a legitimate reason for the adverse action. Here, KU claims that it did not hire plaintiff for the adjunct or ad hoc faculty positions because it had previously denied her promotion and tenure. See Memorandum In Support Of Motion For Summary Judgment On Claims Of Plaintiff (Doc. #24) filed December 15, 1999 at 29. The burden now shifts back to plaintiff to show a genuine dispute of material fact as to whether KU’s proffered reason is pretextual. See Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir.1997). Plaintiff may establish retaliation indirectly by demonstrating that KU’s asserted reasons for the adverse actions at issue are unworthy of belief. See id. (citing Murray v. City of Sapulpa, 45 F.3d 1417, 1421 (10th Cir.1995)). Plaintiff first claims that the close proximity between her protected activity and the adverse employment decisions is sufficient, by itself, to establish pretext. “Close proximity in time may provide some probative evidence of retaliatory intent.” Sanjuan v. IBP, Inc., 160 F.3d 1291, 1299 (10th Cir.1998). An inference of retaliation based on timing “can only be made, however, where ‘close temporal proximity’ exists between the" }, { "docid": "22931669", "title": "", "text": "evidence, such as this one. Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir.2009). As we recently explained, the prima facie case for retaliation requires the employee to show that: (1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment action; and (3) he established a causal link between the protected activity and the adverse action. These three elements create a presumption that the adverse action was the product of an intent to retaliate. Once a plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the defendant to rebut the presumption by articulating a legitimate, non-discriminatory reason for the adverse employment action. If the defendant carries this burden of production, the presumption raised by the prima facie ease is rebutted and drops from the case. After the defendant makes this showing, the plaintiff has a full and fair opportunity to demonstrate that the defendant’s proffered reason was merely a pretext to mask discriminatory actions. Id. at 1307-08 (internal citations and quotation marks omitted). There is no dispute here that Brown engaged in protected activity — her testimony and general involvement in the Reynolds discrimination class action against the Department, see 42 U.S.C. § 2000e-3(a); Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir.2008) — and that she suffered a series of adverse employment actions. The disputed question is whether the evidence sufficiently established, with respect to any of the promotions that Brown allegedly was denied, a “causal connection” between the two foregoing facts. To show causation, a plaintiff in a retaliation case need prove only that retaliatory animus was one factor in the adverse employment decision. See, e.g., Terry v. Ashcroft, 336 F.3d 128, 140-41 (2d Cir.2003). The Department noted that the only specific times Brown claims to have testified in Reynolds were in 1992, and again in December 2004, and that the closest promotion in time to those dates (that of Baldwin on March 19, 2005) was three months removed. It also claims that no decisionmakers at the Department were shown to have had knowledge of Brown’s participation or testimony" }, { "docid": "19960600", "title": "", "text": "Act. 29 U.S.C. § 2615(a)(2); Breneisen v. Motorola, Inc., 512 F.3d 972, 977-78 (7th Cir.2008). Similarly, Title VII protects employees who complain to their employers about sexual harassment from retaliation on that basis. 42 U.S.C. § 2000e-3; Bernier v. Morningstar, Inc., 495 F.3d 369, 375 (7th Cir.2007). We evaluate FMLA and Title VII retaliation claims in the same manner, assessing the direct or indirect method of proof. See Burnett, 472 F.3d at 481 n. 5 (7th Cir.2006) (citing Buie v. Quad/Graphics, Inc., 366 F.3d 496, 504 n. 3 (7th Cir.2004)). Under the direct method, Caskey must present evidence of (1) a statutorily protected activity; (2) a materially adverse action taken by the employer; and (3) a causal connection between the two. Humphries v. CBOCS West, Inc., 474 F.3d 387, 404 (7th Cir.2007). Under the indirect method, an employee must establish a prima facie case by proving that she (1) engaged in a statutorily protected activity; (2) met her employer’s legitimate expectations; (3) suffered an adverse employment action; and (4) was treated less favorably than similarly situated employees who did not engage in statutorily protected activity. Nichols v. Southern Illinois University-Edwardsville, 510 F.3d 772, 784-85 (7th Cir.2007). Once the prima facie case is established, the burden shifts to the employer to produce a non-discriminatory reason for its action; if the employer meets this burden, the burden shifts back to the employee to demonstrate that the proffered reason is pretextual. Id. at 785. Under the direct method, Caskey satisfies the first two elements. Caskey engaged in activity protected by the FMLA: on various occasions from 2000-2003, Cas-key requested and received FML. Caskey also engaged in activity protected by Title VII: Caskey supported the discrimination complaints of her co-worker Carol Isaacs, who filed a charge of sex discrimination with the EEOC in July 2002. She also suffered an adverse employment action, though she has not clearly indicated whether the relevant “action” was the second-stage IIP in February 2003 or her termination in May 2003. Ultimately, however, it does not matter whether her discipline or her termination qualifies as the adverse action, because she" }, { "docid": "11229310", "title": "", "text": "retaliation. The retaliation provision in Title VII provides: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because [she] has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). As with other Title VII claims, a retaliation claim may be proved circumstantially under the familiar McDonnell Douglas burden-shifting analysis. Samuelson v. Durkee/French/Airwick, 976 F.2d 1111, 1114 (7th Cir.1992). Initially, Hubbard must make a prima facie showing that: (1) she engaged in statutorily protected expression; (2) she suffered an adverse action by her employer; and (3) there is a causal link between the protected expression and the adverse action. Rennie v. Dalton, 3 F.3d 1100, 1108 (7th Cir.1993); Samuelson, 976 F.2d at 1114. If Hubbard establishes a prima facie case of retaliation, the burden of production shifts to Blue Cross to come forward with a legitimate, non-retaliatory reason for its actions. If Blue Cross rebuts Hubbard’s prima facie case in this manner, the burden shifts back to Hubbard to demonstrate that Blue Cross’ proffered reasons for disciplining and, ultimately, terminating her were pretextual. Gleason v. Mesirow Financial, Inc., 118 F.3d 1134, 1146 (7th Cir.1997). Blue Cross claims that Hubbard cannot establish a prima facie case of retaliation because (1) her complaints to Laeivita and Williams were not statutorily protected expression, and (2) even if her complaints were protected expression, there is no causal connection between the complaints and any adverse employment action. Blue Cross does not contest, however, that the DVW, the CAP, or Hubbard’s termination constitute adverse employment actions. We begin with the first disputed element, protected expression. Hubbard points to two complaints she made about her non-promotion as instances of protected expression. First, she complained to human re sources employee Beth Williams about the fact that two males were promoted to Billing Manager II positions. Her second complaint was to Lacivita. According to Hubbard, she indicated that she believed “sex played a role” in the promotions of the two males by questioning Lacivita “why the women" }, { "docid": "22975033", "title": "", "text": "filed a notice of appeal from this judgment. II. In Title VII retaliation cases, the plaintiff must first make the following pri-ma facie showing: “(1) that [she] engaged in activity protected by Title VII, (2) that an adverse employment action occurred, and (3) that a causal link existed between the protected activity and the adverse action.” Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471 (5th Cir.2002). The causal link required by the third prong of the prima facie case does not rise to the level of a “but for” standard. Id. The plaintiff “need not prove that her protected activity was the sole factor motivating the employer’s challenged decision in order to establish the ‘causal link’ element of a prima facie case.” Long v. Eastfield Coll, 88 F.3d 300, 305 n. 4 (5th Cir.1996) (citation omitted). “Assuming the plaintiff is able to establish [her] prima facie case, the burden then shifts to the defendant to demonstrate a legitimate nondiscriminatory purpose for the employment action.” Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir.2001). If the defendant satisfies this burden, the plaintiff must prove that the employer’s stated reason for the adverse action was merely a pretext for the real, discriminatory purpose. Id. At the summary judgment stage, the nonmovant need only point to the existence of a genuine issue of material fact. We review the grant of summary judgment de novo. Mason v. United Air Lines, Inc., 274 F.3d 314, 316 (5th Cir.2001). A. The parties agree that Gee has satisfied the first two elements of her prima facie cáse, i.e., that she engaged in a protected activity and suffered an adverse employ-, ment action. We must determine whether Gee is able to raise a fact issue regarding a causal connection between her complaint of sexual harassment and her nonselection for the new position. In granting summary judgment against Gee, the district court noted that the harassment occurred two years prior to her nonselection, and that Gee received a favorable performance review from Hopkins on April 21, 1995, after the meeting at which Gee claims that her" }, { "docid": "22923141", "title": "", "text": "case of retaliation. Id. If the plaintiff presents a prima facie case of retaliation, the burden shifts to the employer to rebut the plaintiffs prima facie case by articulating a legitimate, non-discriminatory reason for its adverse employment decision. Id. If the employer successfully makes this showing, the burden shifts back to the plaintiff to show the employer’s proffered reason was a pretext. Id. To establish a prima facie case of retaliation, Kasper must show (1) she engaged in a protected activity, (2) she suffered an adverse employment action, and (3)a causal connection between the protected activity and the adverse employment action. Id. at 1078-79. The parties agree Kasper has satisfied the first and second elements of her prima facie case of retaliation-Kasper engaged in a protected activity by reporting Johnson’s inappropriate conduct to the human resources department on October 10, 2001, and Federated took adverse employment action against Kasper when it discharged her on October 8, 2002. The issue on appeal is whether the district court correctly concluded Kasper failed to demonstrate the third element of her prima facie case-a causal connection between her report of Johnson’s inappropriate behavior and her discharge. 1. Causal Connection Kasper contends she established causation, because she complained about Johnson’s conduct before any supervisor criticized her performance. The undisputed facts, however, refute Kasper’s contention. On September 28, 2001, nearly two weeks before Kasper’s October 10 complaint regarding Johnson’s conduct, Goo-dew sent an e-mail message to Bucher criticizing Kasper’s performance in the TSS position. In Goodew’s e-mail message, he stated Kasper “does not have a good grasp on the TSS position or at least the TSS position in the Select Express Segment. He[r] counter parts seem frustrated with her too. She is always asking for help but they can not get a feel for the numbers because she never brings them to the table.” Goodew also expressed doubt about Kasper’s ability to “set goals” and questioned “[h]ow the heck did she get by for 3 years?” The fact Goodew criticized Kasper’s performance before she complained about Johnson’s conduct weakens any inference of causation. See Erenberg v." }, { "docid": "8617131", "title": "", "text": "at 493 (motion for summary judgment properly granted where plaintiff presented no evidence that defendant’s “reasons were mere pretexts nor any other evidence from which retaliatory intent could be inferred”). Pretext may be shown by establishing one of the following: 1) the defendant employer’s justification had no ba sis in fact; 2) the explanation was not the “real” reason; or 3) the reason stated was not sufficient to warrant the adverse employment action. See Collier v. Budd Co., 66 F.3d 886, 892 (7th Cir.1995). Moreover, to state a claim for retaliation, the adverse action taken against the employee must be material. An adverse action is material when a change in the “terms and conditions of employment” is “more disruptive than a mere inconvenience or an alteration of job responsibilities.” Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.1993). Such a materially adverse change could include “a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, or other indices that might be unique to a particular situation.” Id. This is not an exhaustive list, however, because “adverse actions can come in many shapes and sizes____The law does not take a ‘laundry list’ approach to retaliation, because ... its forms are as varied as the human imagination will permit.” Knox v. Indiana, 93 F.3d 1327, 1334 (7th Cir.1996). However, “not everything that makes an employee unhappy is an actionable adverse action.” Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996). At the outset we note that there is no question regarding the first element of the prima facie case. Savino has clearly engaged in. statutorily protected activity in complaining against Popper, first to C.P. Hall, and then to the E.E.O.C. Damato v. Jack Phelan Chevrolet Geo, Inc., 927 F.Supp. 283, 288 (N.D.Ill.1996) (finding that even an informal complaint to a supervisor would constitute protected activity). The critical issues are whether Savino can otherwise establish a prima facie case of retaliation, and whether she can rebut C.P. Hall’s proffered explanations for failing to" }, { "docid": "2987775", "title": "", "text": "management hierarchy of the company). The type of marginal discretion Lopez had over Hall’s work operations is not sufficient to impute Title VII vicarious liability to an employer. See, e.g., Parkins, 163 F.3d at 1034. Additionally, Hall’s own actions indicate that she never considered Lopez to be her supervisor. Whenever she had a complaint, she spoke with her actual supervisor (i.e., Steve Conn or Brian Kol-ka) or the human resources department, not with Lopez or anyone else in his capacity. Hall, 276 F.3d at 355-56 (footnotes omitted). Although the court in Hall referred to “authority to affect the terms and conditions of the victim’s employment,” rather than to the power to take “tangible employment action” against the victim, as the hallmark of a supervisor’s power, the specific kinds of authority identified by the court — the “power to hire, fire, demote, promote, transfer, or discipline an employee” — are precisely the same actions that the Supreme Court in EUerth identified as examples of “tangible employment actions.” See Ellerth, 524 U.S. at 761, 118 S.Ct. 2257. Moreover, the court in Hall specifically considered the alleged “supervisor’s” power to exercise such authority over the victim of the alleged, harassment. See Hall, 276 F.3d at 355. Other decisions are generally in accord with these principles. See Savino v. C.P. Hall Co., 199 F.3d 925, 932 n. 7 (7th Cir.1999) (holding that “[t]here [wa]s no question that Popper was Savino’s supervisor, as he hired her and apparently had the power to terminate her position”); Parkins v. Civil Constructors of Ill., Inc., 163 F.3d 1027, 1034 (7th Cir.1998) (holding that a .supervisor is one with “authority ... of substantial magnitude,” such as the power to hire, fire, demote, promote, transfer, or discipline the plaintiff); Dominicak-Brutus v. Urban Property Servs. Co., 217 F.Supp.2d 911, 922 (N.D.Ill.2002) (noting that the Seventh Circuit Court of Appeals “adheres to a strict definition of who qualifies as a supervisor under Title VII,” citing Hall, and holding that the purported alleged harasser’s ability to assign the plaintiff work was not sufficient to establish his “supervisory status”); Pickett v. Colonel of Spearfish," }, { "docid": "23487595", "title": "", "text": "harassment. To prove a prima facie case of retaliation, Matvia must show that “(1) she engaged in a protected activity; (2) the employer took an adverse employment action against her; and (3) a causal connection existed between the protected activity and the asserted adverse action.” Von Gunten v. Maryland, 243 F.3d 858, 863 (4th Cir.2001). Once Matvia establishes the elements of her prima facie case, the burden shifts to BHIM to proffer evidence of a legitimate, non-discriminatory reason for taking the adverse employment action. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the employer carries its burden, “the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered” were pretextual. Id. As recently noted by the Supreme Court, “a plaintiffs prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000) (emphasis added). Because of her participation in the sexual harassment investigation, Matvia alleges that BHIM retaliated against her by (1) declining to promote her to Terbush’s supervisory position, (2) failing to take action to stop co-workers from ostracizing and vilifying her, and (3) disciplining her for claiming on her time card an hour she had not worked. Turning first to the decision to offer Terbush’s managerial position to Theodore Goebel rather than Matvia, the district court correctly concluded that because this decision was made a short time after the harassment investigation, Matvia had established a prima facie case. See Von Gunten, 243 F.3d. at 865 (noting that a refusal to promote can constitute adverse employment action); Tinsley v. First Union Nat’l Bank, 155 F.3d 435, 443 (4th Cir.1998) (observing that “the closeness in time between” the protected activity and the adverse employment action is sufficient to “make a prima facie case of causality”) (internal quotation marks omitted). In offering a legitimate, non-discriminatory reason" }, { "docid": "9521832", "title": "", "text": "16-17. When, as here, an employee asserts an FMLA retaliation claim without direct evidence of the employer’s retaliatory intent, the Court applies the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir.2006). Under this framework, the plaintiff must first establish a prima facie case of retaliation by showing that (1) she engaged in statutorily protected activity, (2) she suffered an adverse employment action, and (3) a causal connection exists between the protected activity and the adverse employ ment action. See id. If the plaintiff demonstrates a prima facie case, the burden shifts to the employer to articulate a legitimate, non-retaliatory reason for the adverse employment action. See id. If the employer does so, then the plaintiff must show that the employer’s proffered reason for the adverse action is pretextual. See id. a. Prima Facie Case Regarding the elements of DuChateau’s prima facie case, CDM does not dispute that DuChateau engaged in FMLA-protected conduct by taking maternity leave. See 29 U.S.C. § 2612(a)(1)(A). CDM argues, however, that the record conclusively shows that DuChateau did not suffer an adverse employment action and that no causal connection exists between her FMLA leave and any adverse action. The Court disagrees and finds that DuChateau has established a triable issue of fact on these elements. (1) Adverse Action CDM asserts that DuChateau’s departure from Go Green was not an adverse employment action because (1) she voluntarily left the project and (2) even if CDM removed her, “there was no change in her job position, pay, duties or benefits.” D.E. 20 at 16. In support of its first argument, CDM claims that on three occasions, DuChateau stated that she would no longer work on Go Green: during her December 23, 2008, phone conversation with Wheatley; in her December 29, 2008, email to Plante; and in a conversation with Pedersen after she returned from leave. The record, though, presents a factual dispute on this issue. DuChateau denies telling Wheatley or Pedersen" }, { "docid": "5963034", "title": "", "text": "must first establish a prima facie case by “presenting] evidence that (1) she engaged in activity protected by Title VII; (2)[her] employer took an adverse employment action against her; and (3) the adverse action was causally related to the exercise of her rights.” Holcomb v. Powell, 433 F.3d 889, 901-02 (D.C.Cir.2006). If plaintiff meets her burden to establish a prima facie case, defendant “must articulate a legitimate nonretaliatory reason for [the adverse] action.” Id. at 901. If defendant articulates such a reason, “plaintiff has the ultimate burden of establishing that the reason asserted ... is pretext for retaliation.” Id. III. Prima Facie Case A. Protected Activity It is well settled that Title VII protects informal, as well as formal, complaints of discrimination. See, e.g., Mansfield v. Billington, 432 F.Supp.2d 64, 73 n. 3 (D.D.C.2006) (“The defendant does not dispute that the plaintiffs letter to her supervisors is a protected activity under Title VII. Because Title VII protects informal complaints such as letters, the plaintiff has stated a claim for retaliation under Title VII.”); Lockamy v. Truesdale, 182 F.Supp.2d 26, 37 (D.D.C.2001) (“The plaintiff clearly engaged in a protected activity ... when he filed an informal complaint with the EEOC alleging that [his supervisor] harassed him and discriminated against him.”). Thus, as defendant does not dispute, plaintiff engaged in protected activity when she first contacted EEO Counselor Worthy to complain of workplace discrimination sometime in June 2006. Plaintiff again engaged in protected activity on July 6, 2005, when she declined OSY’s offer of resolution and expressed her intention to proceed with a formal complaint. Thus, plaintiff has established the first element of her prima facie ease. B. Adverse Action To establish the second prima facie element of retaliation, a plaintiff need not necessarily show an adverse action that affects the terms and conditions of employment. See Burlington N. & Santa Fe Ry. Co. v. White, — U.S. -, -, 126 S.Ct. 2405, 2415, 165 L.Ed.2d 345 (2006) (rejecting the position of several circuits that had previously required plaintiffs to show acts affecting decisions such as hiring, granting of leave, firing, promotion," }, { "docid": "370377", "title": "", "text": "promote the plaintiff was nondiscriminatory is merely a post hoc rationalization that “carries the seeds of its own destruction.” Bishopp v. District of Columbia, 788 F.2d 781, 789 (D.C.Cir.1986); cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 1791, 104 L.Ed.2d 268 (1989) (in mixed-motives case, employer may not proffer as a legitimate, nondiscriminatory reason a reason that “did not motivate it at the time of the decision”). B. Retaliation Although the Court holds that the plaintiff has carried her burden on the discrimination claim based on WMATA’s failure to promote her in 1984, she has failed to convince the Court that WMATA subsequently retaliated against her for filing an EEOC grievance. The plaintiff alleges that WMATA retaliated against her in four different ways by rejecting her 1985 and 1987 CDS applications, calling her into a “threatening” meeting to “check up” on her, and finally eliminating her position in Rail Service during a WMATA-wide reduction-in-force (“RIF”). It is well-established that “in order to establish a prima facie case of retaliation, a plaintiff must show: 1) that she engaged in a statutorily protected activity; 2) that the employer took an adverse personnel action; and 3) that a causal connection existed between the two.” Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C.Cir.1985) (quoting McKenna v. Weinberger, 729 F.2d 783, 790 (D.C.Cir.1984)). A plaintiff may establish the “causal connection” element “by showing that the employer had knowledge of the employee’s protected activity, and that the adverse personnel action took place shortly after that activity.” Id. In a case involving a retaliatory failure to promote, the plaintiff must also demonstrate that he or she was qualified for the position. Id. at 86 n. 5 (citing Williams v. Boorstin, 663 F.2d 109, 116-17 (D.C.Cir.1980, cert. denied, 451 U.S. 985, 101 S.Ct. 2319, 68 L.Ed.2d 842 (1981)). Even assuming arguendo that the plaintiff has made out a prima facie case of retaliation, the Court holds that she did not satisfy her burden of proving by a preponderance of the evidence that WMATA’s proffered legitimate, nondiscriminatory reasons are pretextual. See id. at 87. WMATA has" }, { "docid": "22901152", "title": "", "text": "McDonnell Douglas burden shifting analysis.” McKenzie, 92 F.3d at 483. Applying this mode of analysis, if Gleason establishes a prima facie case of retaliation, the burden of production then shifts to Mesirow to “come forward with a legitimate, non-retaliatory reason for its actions.” Id. If the defendant rebuts Gleason’s prima facie case in this manner, however, the burden shifts back to the plaintiff to demonstrate that her employer’s proffered reasons for terminating her were pretextual. Id. To establish a prima facie case of retaliation under Title VII, Gleason must establish that (1) she engaged in what our case law refers to as “statutorily protected expression” (i.e., reporting or otherwise opposing conduct prohibited by Title VII, such as sexual harassment), (2) she suffered an adverse, job-related action by her employer (in this case, termination), and (3) there is causal link between her opposition to unlawful discrimination and her termination. Id.; Holland v. Jefferson Nat. Life Ins. Co., 883 F.2d 1307, 1313 (7th Cir.1989). “In order to demonstrate the ‘causal link,’ [Gleason] must demonstrate that [Mesirow] would not have taken the adverse action ‘but for’ the protected expression.” McKenzie, 92 F.3d at 483. Gleason fails to establish the first element of a prima facie case of retaliation (engaging in “protected expression”) because she never reported her allegations of sexual harassment during her term of employment with the defendant-appellee. In order to demonstrate a ease of retaliatory discharge, a plaintiff must show that she opposed conduct prohibited by Title VII, or at a minimum that she had a “reasonable belief’ she was challenging such conduct. Dey, 28 F.3d at 1458. Gleason and others did complain about Novak’s management style, in general terms. However, Gleason concedes that she did not raise the subject of sexual harassment to anyone in authority (including Novak and McGowan), and she admits that she neglected to follow the company’s procedures for reporting sexual harassment. Gleason claims in her deposition testimony that she “feels” that Novak’s objectionable behavior “encompassed ... sexual discrimination,” but unless she made these “feelings” known to her employer, they are irrelevant. Based on this record, we" }, { "docid": "15918888", "title": "", "text": "of sexual harassment; the second is that she suffered retaliation from her coworkers. 1. Satterfield’s Claim for Retaliatory Discharge To establish a prima facie case of retaliation, Satterfield must show that: 1) she engaged in activity protected by Title VII; 2) this exercise of protected rights was known to defendant; 3) defendant thereafter took adverse employment action against the plaintiff, or the plaintiff was subjected to severe or pervasive retaliatory harassment by a supervisor; and 4) there was a causal connection between the protected activity and the adverse employment action or retaliation. Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir.2000) (emphasis omitted). If Satterfield establishes this prima facie case, the burden of production shifts to the Sheriff to “articulate some legitimate, nondiscriminatory reason” for his actions. Id. at 792-93 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). If the Sheriff produces such evidence, then Satterfield, who bears the burden of persuasion throughout the entire process, must demonstrate, “that the proffered reason was not the true reason for the employment decision.” Id. at 793 (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). The Sheriff challenges Satterfield’s ability to establish the fourth element of her prima facie case: that there was a causal connection between the protected activity and the adverse employment action or retaliation. He also argues that there is no evidence on which a reasonable jury could base a finding that the Sheriffs legitimate, nondiscriminatory reason for his actions was merely a pretext. As for the causal connection, without direct evidence of such a connection, “a plaintiff must produce sufficient evidence from which an interference could be drawn that the adverse action would not have been taken” in the absence of Satterfield’s complaint of harassment. Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000). “[N]o one factor is dispositive in establishing a causal connection .... ” Id. “The burden of establishing a prima facie case in a retaliation action is not onerous, but one" }, { "docid": "18976542", "title": "", "text": "as actionable injuries unless accompanied by adverse changes in the terms, conditions, or privi leges of employment. Id. at 1135. Likewise, “[m]ere inconveniences and alteration of job responsibilities will not rise to the level of adverse action.” Id. (internal citations omitted). Finally, under the third prong, the plaintiff may establish a causal connection “by showing that the employer had knowledge of the employee’s protected activity, and that the adverse personnel action took place shortly after that activity.” Cones v. Shalala, 199 F.3d 512, 521 (D.C.Cir.2000) (quoting Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C.Cir.1985)). To qualify as a causal connection, however, the temporal proximity between the employer’s knowledge of the protected activity and the adverse personnel action must be “very close.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (noting that a three- or four-month period between an adverse action and protected activity is insufficient to show a causal connection, and that a 20-month period suggests “no causality at all”). 2. The Court Grants the Defendant’s Motion for Summary Judgment on the Retaliation Claim Arising Out of the 1992 Acting Supervisor Dispute The plaintiff asserts that she has established a prima facie case of retaliation with regard to the 1992 Acting Supervisor dispute. Pl.’s Renewed Opp’n at 31. She argues that she engaged in statutorily protected activity when she filed her EEO complaints and suffered an adverse employment action when the defendant denied her promotion to Acting Supervisor. Id. Moreover, she asserts that she has established a causal connection between the protected activity and the adverse employment action by pointing out that she filed her EEO complaints just before the alleged discrimination began in March 1992, and that the area manager responsible for Acting Supervisor promotions knew of these complaints. Id. The court concludes that the plaintiff has failed to establish a prima facie case for retaliation. The plaintiff certainly engaged in statutorily protected activity when she filed her EEO complaints, and the defendant’s decision not to promote the plaintiff does qualify as an adverse employment action. Forkkio, 306 F.3d at" } ]

[ { "docid": "22661554", "title": "", "text": "part in the Annapolis Convention of 1786, sat on both state and federal courts, and was widely known for his writings on judicial and constitutional subjects. Act of July 14, 1798, 1 Stat. 596. But see Smith v. California, 361 U. S. 147, 155 (concurring opinion); Both v. United States, 354 U. S. 476, 508 (dissenting opinion). 1 Tucker, Blackstone’s Commentaries (1803), 297 (editor’s appendix); cf. Brant, Seditious Libel: Myth and Reality, 39 N. Y. U. L. Rev. 1. Cf. Meiklejohn, Free Speech and Its Relation to Self-Government (1948). Mr. Justice Goldberg, Douglas joins, concurring in the result. The Court today announces a constitutional standard which prohibits “a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Ante, at 279-280. The Court thus rules that the Constitution gives citizens and newspapers a “conditional privilege” immunizing nonmalicious misstatements of fact regarding the official conduct of a government officer. The impressive array of history and precedent marshaled by the Court, however, confirms my belief that the Constitution affords greater protection than that provided by the Court’s standard to citizen and press in exercising the right of public criticism. In my view, the First and Fourteenth Amendments to the Constitution afford to the citizen and to the press an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses. The prized American right “to speak one’s mind,” cf. Bridges v. California, 314 U. S. 252, 270, about public officials and affairs needs “breathing space to survive,” N. A. A. C. P. v. Button, 371 U. S. 415, 433. The right should not depend upon a probing by the jury of the motivation of the citizen or press. The theory of our Constitution is that every citizen may speak his mind and every newspaper express its view on matters of public concern and may not be barred from speaking or publishing" } ]

[ { "docid": "22958633", "title": "", "text": "reprisals and physical danger; (ii) that compulsory disclosure of confidential sources would violate the First Amendment’s freedom of the press by impeding the dissemination of news which can be obtained only if he, as a professional journalist, may effectively guarantee anonymity of the source; and (iii) that he, as a professional journalist and as a resident and citizen of the State of New York, possesses a statutory reportorial privilege to withhold the source of news coming into his possession. The mayor promptly moved for an order to compel disclosure of the identity of the informant[s]. The defendants responded by moving for summary judgment on the ground that each had acted in good faith in publishing the article and that both believed all of the allegedly defamatory statements to be true. The District Court (The Honorable James H. Meredith, Chief Judge), did not reach the merits of the motion to compel. However, on the basis of a well-developed record consisting of affidavits, depositions, and other documentary evidence, it entered summary judgment for the defendants on the grounds that neither defendant had knowledge of falsity, that neither entertained serious doubts as to the truth of any statement in the article, and that neither acted with reckless disregard for truth or falsity. 330 F.Supp. 936, 940 (1970). This appeal followed. I In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L. Ed.2d 686 (1964), it was established that the First and Fourteenth Amendments’ protection of speech and the press restrict the enforcement of State libel laws. Times accordingly held that a public official may recover damages “for a defamatory falsehood relating to his official conduct” only if he “proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279-280, 84 S.Ct. at 726. The holding of Times was reaffirmed and the reckless disregard aspect of its actual malice standard amplified in St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323, 20 L.Ed.2d 262 (1968). The" }, { "docid": "11815243", "title": "", "text": "official conduct of a public official. The Court said that these constitutional guarantees prohibit recovery of damages “unless he [the public official] proves that the statement was made with ‘actual malice’— that is with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. at 279-280, 84 S.Ct. at 726. The Court required proof of “actual malice” presented with “convincing clarity” or proof of “the recklessness that is required for a finding of actual malice.” 376 U.S. at 285-286, 288, 84 S.Ct. at 730. The protection originally granted the publications relating to “public officials” were later extended to cover “pub- lie figures.” Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). The Rosenbloom, plurality-articulated both the legal precept and the procedural standards utilized by the district court in the case before us: “. . .a libel action . . . by a private individual . . . for a defamatory falsehood in a . . . [publication] relating to his involvement in an event of public of general concern may be sustained only upon clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not.” 403 U.S. at 52, 91 S.Ct. at 1824. [Footnote omitted.] “[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” 403 U. S. at 56, 91 S.Ct. at 1826. III. We experience some discomfort in accepting the Rosenbloom plurality opinion as a definitive statement of the appropriate law for this proceeding. Although the district court seemed quick to accept the opinion of three Supreme Court Justices as ruling case law, we are constrained to observe that the affirmance of this court’s judgment in that case was produced by a majority coalition of Supreme Court Justices for" }, { "docid": "712770", "title": "", "text": "to help GLOBE readers lose up to a pound a day.” Prior to publication, the entire April 24 issue, including the article in question, was submitted to GLOBE’s outside counsel for libel review. Since the Marshmallow Diet article did not appear defamatory, counsel did not discuss it with GLOBE’s editors. Nelson learned of the article and its reference to her shortly after its publication. At that time, she was one of eight staff nutritionists employed by the Bureau of Nutrition. (She is now on maternity leave.) She had several responsibilities. From time to time, she reviewed nutrition books in order to determine their reliability and credibility. She also answered inquiries from the press and public on matters relating to nutrition. Finally, Nelson was responsible for nutrition education in two areas of Brooklyn. In that capacity, she gave talks concerning general nutrition to various community groups. Nelson based those talks on materials supplied by the Bureau of Nutrition! II. Discussion A. The Defamation Claim In the landmark case of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Supreme Court held for the first time that “the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct.” Id. at 283, 84 S.Ct. at 727. A public official may not recover “damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279-80, 84 S.Ct. at 726. In Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), the Court extended the protections of .New York Times v. Sullivan to “public figures.” There are two types of public figures. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a'public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular" }, { "docid": "22384062", "title": "", "text": "require “‘breathing space,’” id., at 272 (quoting NAACP v. Button, 371 U. S. 415, 433 (1963)): “A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions — and to do so on pain of libel judgments virtually unlimited in amount— leads to . . . ‘self-censorship.’ . . . Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so.” 376 U. S., at 279. The Court therefore held that the Constitution “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279-280. That showing must be made with “convincing clarity,” id., at 285-286, or, in a later formulation, by “clear and convincing proof,” Gertz, 418 U. S., at 342. The standards of New York Times apply not only when a public official sues a newspaper, but also when a “public figure” sues a magazine or news service. See Curtis Publishing Co. v. Butts, 388 U. S. 130,162-165 (1967) (Warren, C. J., concurring in result); id., at 170 (opinion of Black, J.); id., at 172 (opinion of Brennan, J.). See also Wolston v. Reader’s Digest Assn., Inc., 443 U. S. 157, 163-169 (1979). A decade after New York Times, the Court examined the constitutional limits on defamation suits by private-figure plaintiffs against media defendants. Gertz, supra. The Court concluded that the danger of self-censorship was a valid, but not the exclusive, concern in suits for defamation: “The need to avoid self-censorship by the news media is ... , not the only societal value at issue . . . [or] this Court would have embraced long ago the view that publishers and broadcasters enjoy" }, { "docid": "877142", "title": "", "text": "motion for summary judgment by asserting that there is an issue for the jury as to malice unless they make some showing, of the kind contemplated by the Rules, of facts from which malice may be inferred. Thompson v. Evening Star Newspaper Co., 129 U.S.App.D.C. 299, 394 F.2d 774 (1968). As I view the record, plaintiffs have failed to produce any evidence beyond the mere allegations that defendants published the book with reckless disregard of the falsity of its contents. Summary judgment is particularly appropriate at an early stage in' cases where claims of libel or invasion of privacy are made against publications dealing with matters of public interest and concern. In recognition of the constitutional privilege of free expression secured by the First and Fourteenth Amendments, the courts in libel actions have recognized the need for affording summary relief to defendants in order to avoid the “chilling effect” on freedom of speech and press. Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Konigsberg v. Time, Inc., 312 F.Supp. 848 (S.D.N.Y.1970); Cerrito v. Time, Inc., 302 F.Supp. 1071 (N.D.Cal.1969), aff’d., 449 F.2d 306 (9th Cir. 1970). Accordingly, the constitutional privilege mandates the granting of a motion for summary judgment as soon as it becomes clear that a plaintiff cannot establish the “actual malice” required for recovery in defamation actions of this nature. An analysis of a libel claim must commence with the seminal case of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In New York Times, the Supreme Court superimposed constitutional limitations on state libel laws and held that the freedoms of speech and of the press guaranteed by the First and Fourteenth Amendments prohibit a public official from recovering damages for a defamatory falsehood relating to his official conduct, unless he proves that the statement was made with “actual malice”, which the court defined as the publication of false statements with actual knowledge of their falsity or with reckless disregard for their truth or falsity. 376 U.S. at 279-280, 84 S.Ct. 710. See, also Garrison" }, { "docid": "11815242", "title": "", "text": "In her deposition the author stated that she talked by telephone to a man representing himself as Gordon. For his part, Gordon denies either a face to face or a telephonic interview. Random advertised: “Through actual interviews and personal experiences, the author analyzes the complex sociological and economic pressures exerted on and by [Blacks and Jews]. . . .” (Emphasis supplied.) Gordon, on the other hand, showed that “Earl” was never interviewed by Berson. Random House sets forth affidavits by its representatives stating that it had no reason to doubt the author’s veracity and, accordingly, made no further investigation. Gordon replies in kind that because of the potential for defamation Random House should have done more than take its author’s word at face value. Gordon contends that the publisher should have investigated the authenticity of the critical interviews with Gordon and “Earl”. II. The landmark New York Times case held that the constitutional guarantee of freedoms of speech and press imposed severe restrictions on the state libel laws when the allegedly defamatory publications related to official conduct of a public official. The Court said that these constitutional guarantees prohibit recovery of damages “unless he [the public official] proves that the statement was made with ‘actual malice’— that is with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. at 279-280, 84 S.Ct. at 726. The Court required proof of “actual malice” presented with “convincing clarity” or proof of “the recklessness that is required for a finding of actual malice.” 376 U.S. at 285-286, 288, 84 S.Ct. at 730. The protection originally granted the publications relating to “public officials” were later extended to cover “pub- lie figures.” Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). The Rosenbloom, plurality-articulated both the legal precept and the procedural standards utilized by the district court in the case before us: “. . .a libel action . . . by a private individual . . . for a defamatory falsehood in a . . ." }, { "docid": "22958634", "title": "", "text": "grounds that neither defendant had knowledge of falsity, that neither entertained serious doubts as to the truth of any statement in the article, and that neither acted with reckless disregard for truth or falsity. 330 F.Supp. 936, 940 (1970). This appeal followed. I In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L. Ed.2d 686 (1964), it was established that the First and Fourteenth Amendments’ protection of speech and the press restrict the enforcement of State libel laws. Times accordingly held that a public official may recover damages “for a defamatory falsehood relating to his official conduct” only if he “proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279-280, 84 S.Ct. at 726. The holding of Times was reaffirmed and the reckless disregard aspect of its actual malice standard amplified in St. Amant v. Thompson, 390 U.S. 727, 88 S. Ct. 1323, 20 L.Ed.2d 262 (1968). The Court said with respect to this aspect of the constitutional standard: “[Rjeekless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” 390 U. S., at 731, 88 S.Ct., at 1325. It is clear, finally, that the conditional privilege granted by Times to false defamatory expression no longer is confined to statements concerning public officials. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), holds that constitutional protection is to be extended to “all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.” Id., at 44, 91 S.Ct., at 1820. Thus, “the determinant whether the First Amendment applies to state libel actions is whether the utterance involved concerns an issue" }, { "docid": "11815240", "title": "", "text": "substantive law governing, on the theory that the book’s implication is that he is a dishonest merchant who cheats blacks and is causing trouble and difficulties for this nation. It is the publisher’s position that Gordon was not entitled to a trial on the substantive merits of this claim because, irrespective of whether Gordon was famous, he had become involved in a matter of “public or general concern”-by his conduct when he telephoned his 1964 Philadelphia riot experiences to the Philadelphia Inquirer, which later published an account of Gordon’s experi- enees. The publisher contends that the relationship between Jewish merchants and inner-city blacks has been the subject of widespread public interest in national news magazines and many national and local publications. It is on this basis that Random House contends that it comes within the “involvement in an event of public or general concern” protection of the plurality opinion of Rosen-bloom. Accordingly, the publisher argues that for Gordon to have the substantive merits of his libel claim heard, it is necessary for him to show that the “defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not.” Gordon does not contend that Random House published with actual knowledge of the falsehood. Rather he seems to proceed on twin theories: First, he contends that the New York Times rule does not apply and that Pennsylvania libel law of lack of reasonable care is the appropriate standard. Alternatively, if New York Times does apply, there is a sufficient issue of “reckless disregard”: that considering the cumulative effect of the lack of investigatory efforts, of advertising the book as containing actual interviews, of the inaccuracy of the Prologue and of the inherent improbability of “Earl’s” statements, a sufficient issue was joined to have a fact finder decide whether the publisher acted with a reckless disregard. The publisher filed affidavits explaining that Lenora E. Berson represented that the factual statements in the Prologue concerning Max Gordon were based on an actual interview she had with him, plus information contained in the public press." }, { "docid": "12006917", "title": "", "text": "however, in substantial measure from those of Judge Ainsworth. Moreover, I reach the result without the use of the procedural euphuism — a de novo review in the appellate court. I. In New York Times v. Sullivan, 1964, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, the Supreme Court fashioned a procedural technique under the aegis of the First Amendment to insulate the communications industry from state libel laws. That case involved a libel action brought by a public official against a newspaper. The rule was announced that in such an action, the complainant must meet a standard of proof of convincing clarity that a defamatory falsehood alleged as libelous was uttered with “. . . knowledge that it was false or with reckless disregard of whether it was false or not . . .” 376 U.S. at 280, 84 S.Ct. at 726. This rule reached its full scope in Rosenbloom v. Metromedia, 1971, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296, when it was extended to place the same burden on any citizen if the utterance involved is related to an issue of public or general concern. 403 U.S. at 44, 91 S.Ct. 1811. Also in Garrison v. Louisiana, 1964, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125, and again in Rosenblatt v. Baer, 1966, 383 U.S. 75, 84, 86 S.Ct. 669, 15 L.Ed.2d 597, both public official cases, the court stated that the holding in New York Times v. Sullivan also establishes that the burden is on the plaintiff in such a case to establish the falsity of the utterance. Thus, the present rule is that the buj’den of the plaintiff in a libel action against the news media arising out of a defamatory publication, where a First Amendment defense is asserted, is (a) to establish by clear and convincing proof that (b) the statement was false and (c), that it was published with the knowledge that it was false or with reckless disregard of whether it was false or not. The Supreme Court has not expressly added the requirement of clear and convincing" }, { "docid": "11815241", "title": "", "text": "that the “defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not.” Gordon does not contend that Random House published with actual knowledge of the falsehood. Rather he seems to proceed on twin theories: First, he contends that the New York Times rule does not apply and that Pennsylvania libel law of lack of reasonable care is the appropriate standard. Alternatively, if New York Times does apply, there is a sufficient issue of “reckless disregard”: that considering the cumulative effect of the lack of investigatory efforts, of advertising the book as containing actual interviews, of the inaccuracy of the Prologue and of the inherent improbability of “Earl’s” statements, a sufficient issue was joined to have a fact finder decide whether the publisher acted with a reckless disregard. The publisher filed affidavits explaining that Lenora E. Berson represented that the factual statements in the Prologue concerning Max Gordon were based on an actual interview she had with him, plus information contained in the public press. In her deposition the author stated that she talked by telephone to a man representing himself as Gordon. For his part, Gordon denies either a face to face or a telephonic interview. Random advertised: “Through actual interviews and personal experiences, the author analyzes the complex sociological and economic pressures exerted on and by [Blacks and Jews]. . . .” (Emphasis supplied.) Gordon, on the other hand, showed that “Earl” was never interviewed by Berson. Random House sets forth affidavits by its representatives stating that it had no reason to doubt the author’s veracity and, accordingly, made no further investigation. Gordon replies in kind that because of the potential for defamation Random House should have done more than take its author’s word at face value. Gordon contends that the publisher should have investigated the authenticity of the critical interviews with Gordon and “Earl”. II. The landmark New York Times case held that the constitutional guarantee of freedoms of speech and press imposed severe restrictions on the state libel laws when the allegedly defamatory publications related to" }, { "docid": "11815238", "title": "", "text": "OPINION OF THE COURT ALDISERT, Circuit Judge. The question for decision is whether a genuine issue of material fact existed in a libel action thereby precluding entry of summary judgment in favor of the book publisher. Relying on Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S. Ct. 1811, 29 L.Ed.2d 296 (1971), and New York Times Co. v. Sullivan, 376 U. S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the district court, 349 F.Supp. 919, ruled as a matter of law that the alleged defamatory statements were not published with knowledge that they were false or with reckless disregard as to whether the statements were false. Contending that the publisher’s affidavits in support of its motion for summary judgment and Gordon’s opposing affidavits presented a jury question, the plaintiff has appealed. We reverse, vacate the judgment, and remand for the development of a complete record at trial. I. Max Gordon, a Philadelphia retailer of the Jewish faith, sued Random House, a book publisher, in libel for alleged defamatory statements contained in the prologue to a book entitled “The Negroes and the Jews” authored by Lenora E. Berson. The book was published in, April, 1971. The Prologue relates that Gordon had escaped the pogroms of Russia, had become a business retailer through the dint of hard work and sacrifice, and then had become a victim of the 1964 North Philadelphia black community riots. Counterposing the Gordon story is the story of “Earl,” a black itinerant, allegedly interviewed on a Harlem park bench, who explains why he hates Jews, especially those in the retail business who sell cheap clothes at high prices and “gyp” blacks. The Prologue effectively portrays a picture of metropolitan neighborhoods becoming black and Puer-to Rican, with “the Max Gordon’s and their younger, more Americanized coreligionists . . . [forming] the business infra-structure,” portraying Gordon as a Jewish merchant in conflict with “Earl” and other blacks: “As antagonists they may well hasten the nation down the bloody road of racism and reaction.” Plaintiff grounds his libel action, brought in diversity under 28 U.S.C. § 1332 with Pennsylvania" }, { "docid": "22649418", "title": "", "text": "Me. Justice Brennan announced the judgment of the Court and an opinion in which The Chief Justice and Mr. Justice- Blackmun join. In a series of cases beginning with New York Times Co. v. Sullivan, 376 U. S. 254 (1964), the Court has considered the limitations upon state libel laws imposed by the constitutional guarantees of freedom of speech and of the press. New York Times held that in a civil libel action by a public official against a newspaper those .guarantees required clear and convincing proof that a defamatory falsehood alleged as libel was uttered with “knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 280. The same requirement was later held to apply to “public figures” who sued in libel on the basis of alleged defamatory falsehoods. The several cases considered since New York Times involved actions of “public officials” or “public figures,” usually, but not always, against newspapers or magazines. Common to all the cases was a defamatory falsehood in the report of an event of “public or general interest.” The instant case presents the question whether the New York Times’ knowing-or-reckless-falsity standard applies in a state civil libel action brought not by a “public official” or a “public figure” but by a private individual for a defamatory falsehood uttered in .a news broadcast by a radio station about the individual’s involvement in an event of public or general interest. The District Court for the Eastern District of Pennsylvania held that the New York Times standard did not apply and that Pennsylvania law determined respondent’s liability in this diversity case, 289 F. Supp. 737 (1968). The Court of Appeals for the Third Circuit held that the New York Times standard did apply and reversed the judgment for damages awarded to petitioner by the jury. 415 F. 2d 892 (1969). We granted cer-tiorari, 397 U. S. 904 (1970). We agree with the Court of Appeals and affirm that court’s judgment. I In 1963, petitioner was a distributor of nudist magazines in the Philadelphia metropolitan area. During the fall of" }, { "docid": "861270", "title": "", "text": "speech and the press prohibit recovery of damages in a libel action brought by a public official against critics for defamatory comment about his official conduct “unless he [the public official] proves that the statement was made with ‘actual malice’'—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. at 279-280, 84 S.Ct. at 726. The court reasoned that “if the freedoms of expression are to have the ‘breathing space’ that they ‘need * * * to survive,’ ” 376 U.S. at 272, 84 S.Ct. at 721, factual error, defamatory content and even resort to exaggeration and vilification are essential to free public discussion. In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), the court, in affirming the decision of the Third Circuit Court of Appeals, extended the application of the New York Times’ constitutional privilege further “to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.” 403 U.S. at 44, 91 S.Ct. at 1820. In Rosenbloom, Justice Brennan, writing the plurality opinion, focused on society’s interest in being informed of certain issues: “If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved or because in some sense the individual did not choose to become involved.” Id. 403 U.S. at 43, 91 S.Ct. at 1819. The Court of Appeals in Gordon v. Random House, Inc., 486 F.2d 1356 (3d Cir. 1973), “experience[d] some discomfort in accepting the Rosenbloom plurality opinion as a definitive statement of the appropriate law . . . .” 486 F.2d at 1359. . In Random House, the District Court had relied on Rosenbloom in granting defendant’s motion for summary judgment. 349 F.Supp. 919 (E.D. Pa.1973). Judge Aldisert directed that the lower court develop a more adequate record in which the district judge as a matter of law decides (1) whether the subject matter of the allegedly defamatory material constituted an event of" }, { "docid": "22668043", "title": "", "text": "U. S. 254 (1964). There this Court defined a constitutional privilege intended to free criticism of public officials from the restraints imposed by the common law of defamation. The Times ran a political advertisement endorsing civil rights demonstrations by black students in Alabama and impliedly condemning the performance of local law-enforcement officials. A police commissioner established in state court that certain misstatements in the advertisement referred to him and that they constituted libel per se under Alabama law. This showing left the Times with the single defense of truth, for under Alabama law neither good faith nor reasonable care would protect the newspaper from liability. This Court concluded that a “rule compelling the critic of official conduct to guarantee the truth of all his factual assertions” would deter protected speech, id., at 279, and announced the constitutional privilege designed to counter that effect: “The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id., at 279-280. Three years after New York Times, a majority of the Court agreed to extend the constitutional privilege to defamatory criticism of “public figures.” This extension was announced in Curtis Publishing Co. v. Butts and its companion, Associated Press v. Walker, 388 U. S. 130, 162 (1967). The first case involved the Saturday Evening Post’s charge that Coach Wally Butts of the University of Georgia had conspired with Coach “Bear” Bryant of the University of Alabama to fix a football game between their respective schools. Walker involved an erroneous' Associated Press account of former Major General Edwin Walker’s participation in a University of Mississippi campus riot. Because Butts was paid by a private alumni association and Walker had resigned from the Army, neither could be classified as a “public official” under New York Times. Although Mr. Justice Harlan announced the result in both cases, a majority of the" }, { "docid": "877145", "title": "", "text": "in any single opinion in Rosenbloom, Mr. Justice White, in a concurring opinion, summarized the concensus of the opinions this way; “[I]t would seem that at least five members of the Court would support each of the following rules; For public officers and public figures to recover for damage to their reputations for libelous falsehoods, they must prove either knowing or reckless disregard of the truth. All other plaintiffs must prove at least negligent falsehood, but if the publieatioiTabout them was in an area of legitimate public interest, then they too must prove deliberate or reckless error.” Thus, a plurality of the Court agreed that to sustain an action for defamation when the public or general interest privilege applies, the complainant must offer “clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not.” 403 U.S. at 52, 91 S.Ct. at 1824. According to Rosenbloom, one who published a communication concerning another on a matter of public or general interest was not subject to liability, even though the communication was false and defamatory, unless he published it with knowledge of its falsity, or in reckless disregard of its truth or falsity. Rosenbloom, supra; Restatement Second on Torts, § 581A (Tentative Draft April 25, 1974). The focus in Rosenbloom was directed to the newsworthy event; the event or issue was the significant aspect, rather than the individual involved. On the eve of this memorandum, the Supreme Court decided Gertz v. Welch, supra, which has the effect of circumscribing the Rosenbloom decision. The issue in Gertz was whether a newspaper or broadcaster, having published defamatory falsehoods about an individual who was neither a public official nor a public figure, could claim a constitutional privilege against liability for the injury inflicted by those statements. The Court concluded that the New York Times standard requiring actual malice was inapplicable in a case involving a private individual. In effect, the Court adopted the dissenting opinion of Justice Harlan ^ in Rosenbloom. In his dissent in Rosenbloom, Justice Harlan concluded" }, { "docid": "877143", "title": "", "text": "848 (S.D.N.Y.1970); Cerrito v. Time, Inc., 302 F.Supp. 1071 (N.D.Cal.1969), aff’d., 449 F.2d 306 (9th Cir. 1970). Accordingly, the constitutional privilege mandates the granting of a motion for summary judgment as soon as it becomes clear that a plaintiff cannot establish the “actual malice” required for recovery in defamation actions of this nature. An analysis of a libel claim must commence with the seminal case of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). In New York Times, the Supreme Court superimposed constitutional limitations on state libel laws and held that the freedoms of speech and of the press guaranteed by the First and Fourteenth Amendments prohibit a public official from recovering damages for a defamatory falsehood relating to his official conduct, unless he proves that the statement was made with “actual malice”, which the court defined as the publication of false statements with actual knowledge of their falsity or with reckless disregard for their truth or falsity. 376 U.S. at 279-280, 84 S.Ct. 710. See, also Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); Miller v. News Syndicate Co., 445 F.2d 356 (2d Cir. 1971). A logical extension of the New York Times rule followed three years later in Curtis Publishing Co. v. Butts, and its companion, Associated Press v. Walker, 388 U.S. 130, 162, 87 S.Ct. 1975, 18 L. Ed.2d 1094 (1967). The Court therein concluded that the New York Times test should.apply to criticism of “public figures” as well as “public officials”. In Curtis and Walker, the Court extended the constitutional privilege to protect defamatory criticism of non-public officials who “are nevertheless intimately involved in the resolution of important public questions, or, by reason of their fame, shape events. in areas of concern to society at large.” Id., at 164, 87 S.Ct. at 1996. In 1971, a plurality of the Court extended the constitutional privilege once again to protect defamatory criticism against private individuals, Rosenbloom v. Metromedia, 403 U.S. 29; 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971). Although no more than three Justices joined" }, { "docid": "22369755", "title": "", "text": "which would prevail if the jury found that the article was both true and published on a “lawful occasion.” The second defense was “con ditional privilege,” which could prevail even if the jury found the article to be false, but only if it also found that its publication was “on a lawful occasion, in good faith, for a justifiable purpose, and with a belief founded on reasonable grounds of the truth of the matter published.” The jury returned a verdict of $20,000, of which $10,000 was against the newspaper and $10,000 against NANA. On appeal, the New Hampshire Supreme Court affirmed the judgment, holding that the trial judge properly sent to the jury the question of whether or not the particular libel alleged was “relevant” to Roy’s fitness for office. 109 N. H. 441, 254 A. 2d 832. We granted certiorari in order to consider the constitutional issues presented by the case. 397 U. S. 904. I In New York Times Co. v. Sullivan, 376 U. S. 254, 279-280, we held that the First and Fourteenth Amendments require “a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” The rule of New York Times was based on a recognition that the First Amendment guarantee of a free press is inevitably in tension with state libel laws designed to secure society’s interest in the protection of individual reputation. The approach of New York Times was to identify a class of person- — ■ there public officials — and a type of activity — there official conduct — and to require as to defamations respecting them a particularly high standard of liability — knowing falsehood or reckless disregard of the truth. Later cases have made it clear that the applicability of this basic approach is not limited to those in public office or to the performance of official acts, or, for" }, { "docid": "13205853", "title": "", "text": "plaintiff. Falsity and damages were presumed, truth was a defense, and proof of fault was not required. See id. at 262-63, 267, 84 S.Ct. 710 (describing Alabama law); Restatement (Second) of Torts § 581A, cmt. b (1977); Restatement (Second) of Torts § 620, cmt. c (1977); 1 Robert D. Sack, Sack on Defamation: Libel, Slander, and Related Problems § 2:1.1 (4th ed. 2016). In New York Times, the Supreme Court limited defamation liability by developing “standards that satisfy the First Amendment.” 376 U.S. at 269, 84 S.Ct. 710. The Court declared that a “public official” seeking “damages for a defamatory falsehood” about his “official conduct” must prove with “convincing clarity” that the statement was made with “actual malice” — that is, “with knowledge that [the statement] was false or with reckless disregard of whether it was false or not.” Id. at 279-80, 285, 84 S.Ct. 710. The “actual malice” standard — by requiring proof that the defendant published with knowledge or reckless disregard that the statement was false — also requires proof that the statement was false. See Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964) (explaining New York Times requires a public official to prove “the utterance was false”); see also Air Wisc. Airlines Corp. v. Hoeper, —U.S.-, 134 S.Ct. 852, 861, 187 L.Ed.2d 744 (2014) (“[W]e have long held that actual malice requires material falsity”). In Gertz v. Robert Welch, Inc., the Court said both public officials and public figures must prove actual malice by “clear and convincing proof.” 418 U.S. 323, 342, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Gertz also held that a defamation plaintiff must prove actual injury to recover for a false and defamatory statement about a matter of public concern. Id. at 348-49, 94 S.Ct. 2997. And in Philadelphia Newspapers, Inc. v. Hepps, the Court held that in cases involving speech about matters of public concern, the First Amendment requires all plaintiffs — public and private — to prove falsity. 475 U.S. 767, 776, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986). The plaintiff “carries the burden of" }, { "docid": "3556844", "title": "", "text": "remember you wrote the script though? Jacobson: I don’t remember writing it. I do see it. Question: You don’t remember writing it? Jacobson: Yes, I mean — I don’t remember sitting at my typewriter, what I was thinking and how my hands were working. I see the script. It has a date. I wrote it, obviously, and I remember being involved in a series of reports on that subject. On redirect examination, Jacobson asserted that his recollection of his state of mind at the time of the broadcast had improved from the time of his deposition to the time of the trial because he had “gone over everything that ha[d] been given to [him] by a whole team of lawyers” including the script that he used during his Perspective and the videotape of the actual broadcast. Jacobson stated that as a consequence his memory was jarred and he was able to “just recall more specifically some things that I didn't recall from before.\" II. Concerned that traditional state law actions for defamation might interfere with the First Amendment guarantees of free expression, the Supreme Court held in the landmark case of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), that a public official could recover in a libel action only if the official was able to show that the alleged defamatory statement was made with “ ‘actual malice’ — that is with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279-80, 84 S.Ct. at 726. This constitutional standard, which was extended to public figures such as Brown & Williamson in Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), requires that the plaintiff prove by “clear and convincing evidence” that the defendant either knew the statement was false or “in fact entertained serious doubts as to [its] truth. . . . .” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). In New York Times, the Supreme Court also outlined" }, { "docid": "4463623", "title": "", "text": "SPRECHER, Circuit Judge. We are required to review the application of the New York Times rule to an alleged defamatory publication relating to a public official. This is an appeal from the entry of a summary judgment in favor of all of the defendants in a libel action brought by an elected public official, the tax assessor of Calumet Township, Lake County, Indiana, based upon a nine-page article published in the November, 1972, issue of Harper’s Magazine entitled “A Tax Assessor Has Many Friends—The Story of Tom Fadell, his rise to power in Gary, Indiana, and why he will probably stay there.” There was no dispute that the plaintiff was a public official subject to the application of the New York Times rule that the First and Fourteenth Amendments prohibit a public official from recovering damages in a civil libel action for defamatory falsehoods relating to his official conduct unless he proves that the statements were made with actual malice—that is, with knowledge that they were false or with reckless disregard of whether they were false or not. New York Times Co. v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). New York Times requires that actual malice be shown with “convincing clarity.” Id. at 285-286, 84 S.Ct. 710. Where the New York Times rule is applicable, the Supreme Court has required that an appellate court make an independent examination of the whole record to determine whether it could constitutionally support a judgment for the plaintiff “so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.” Id. at 284-285, 84 S.Ct. at 729. In Carson v. Allied News Co., 529 F.2d 206, 210 (7th Cir. 1976), we accepted the following test enunciated in the concurring opinion of Judge Wright in Wasserman v. Time, Inc., 138 U.S.App.D.C. 7, 424 F.2d 920, 922-923 (1970), for applying the “convincing clarity” standard in summary judgment situations: Unless the court finds on the basis of pretrial affidavits, depositions or other documentary evidence, that the plaintiff can prove actual malice in the" } ]

[ { "docid": "1509470", "title": "", "text": "forum and procedures for an expedient dispute resolution, does not endeavor to supplant the substantive law under which the claim against the estate (or for that matter any defenses, counterclaims, or other rights claimed by either party to the dispute) arose. See generally Report of the Commission on the Bankruptcy Laws of the United States, H.R.Doc. No. 137, 93d Cong., 1st Sess., Pt. I, 68-71, 76-78 (1973). It would appear that the substantive law regarding claims against the estate gives way only in those instances in which the internal goals of the bankruptcy system require alteration of externally created substantive rights, including “(1) equality of distribution among creditors, (2) a fresh start for debtors, and (3) economical administration [of the bankruptcy system.]” Id. at 75; see also id. at 75-83; cf. Michigan Employment Security Comm ’n v. Wolverine Radio Co. (In re Wolverine Radio Co.), 930 F.2d 1132, 1148 (6th Cir.1991) (noting that, although the bankruptcy court has power to determine the amount and legality of taxes under 11 U.S.C. § 505, “ ‘[t]here is no power to reject [state] tax obligations, burdensome or otherwise’ ”) (quoting In re Pine Knob, 20 B.R. 714, 716 (Bankr.E.D.Mich.1982), cert. dismissed, — U.S. -, 112 S.Ct. 1605, 118 L.Ed.2d 317 (1992)). And in those instances in which the Congress has decided that the administration of the Bankruptcy Code requires alteration in the substantive rights of the parties, it has not hesitated to make such intentions clear. See, e.g., 11 U.S.C. §§ 544-551, 553 (establishing in the trustee the power to avoid otherwise legal transfers of property for benefit of bankruptcy estate); 11 U.S.C. § 507 (establishing priorities for satisfaction of claims against the bankruptcy estate). Turning to the specific question at hand, it is well established that matters of proof, such as are presented in the bankruptcy trustee’s claimed tax deduction, are properly considered to be a part of the substantive tax laws. See Dick v. New York Life Ins. Co., 359 U.S. 437, 446, 79 S.Ct. 921, 927, 3 L.Ed.2d 935 (1959) (holding that “presumptions (and their effects) and burden of proof" } ]

[ { "docid": "2290001", "title": "", "text": "incorrect, and cites several cases supporting its position. For example, in In re Landbank Equity Corp., 973 F.2d 265, 269-71 (4th Cir.1992), the court stated: [W]e find nothing in the plain language of the Bankruptcy Code that expresses an intent to alter the burdens of proof or persuasion in the context of a disputed claim against the bankruptcy estate. When a dispute arises, the code provides that it be resolved by the bankruptcy court or, in the case of a non-“core” dispute, by the district court. Subject to some exceptions, the code expressly provides to the bankruptcy court jurisdiction to “determine the amount or legality of any tax” assessed against the debtor. See 11 U.S.C. § 505(a)(1). Turning to the specific question at hand, it is well established that matters of proof, such as are presented in the bankruptcy trustee’s claimed tax deduction, are properly considered to be a part of the substantive tax laws.... [N]o portion of the Bankruptcy Code expresses a policy or intent to replace any aspect of the federal tax law with any special legal requirement to be applied only in the context of a bankruptcy proceeding. Thus, upon review of the code and its legislative history, we find nothing which suggests that this dispute between a taxpayer and the IRS should be decided in a manner any different from that in which the case would be determined outside the bankruptcy context. (Citations omitted.) In this district, however, the courts have held the bankruptcy code and rules determine whether the taxpayer-debtor or the taxing entity carries the burden of proof or persuasion. See, e.g., In re Hudson Oil Company, Inc., 91 B.R. 932, 945 (Bankr.D.Kan.1988) (“in the bankruptcy context, ... the burden remains on the creditor to prove the validity of the claim”); In re Koontz, 71 B.R. at 610 (“the burden of persuasion by a preponderance of the evidence is” on the taxing authority). Furthermore, in In re Fullmer, the Tenth Circuit Court of Appeals applied the burden of proof standards set out in 11 U.S.C. § 502(a) and Fed.R.Bankr.P. 3001(f) without comment as to" }, { "docid": "19084145", "title": "", "text": "-, 112 S.Ct. 2967, 119 L.Ed.2d 587 (1992). The Court also notes in In re Kirk, 98 B.R. 51, 54-55 (Bankr.M.D.Fla.1989), the Court in dicta, in an innocent spouse case under IRC § 6013(d)(3), noted, that under § 505 the focus is on the extent of the underlying tax liability of the debtor, and that the burden of proof would be on the debtor. The burden is on the taxpayer in the Tax Court, except with respect to the issue of fraud. 26 U.S.C. § 7454. It is similarly on the taxpayer in district court refund suits, even with respect to a Government counterclaim for an additional deficiency, the notice of which was issued during the suit, again except with respect to the issue of fraud. 26 U.S.C. § 7422(e). However, where the IRS, pursuant to 26 U.S.C. § 6214(a), asserts amounts of tax owed in excess of the amount specifically supported by the notice of deficiency, the burden of persuasion with respect to such additional amounts is on the Government. 26 U.S.C. § 7453, Tax Court Rule 142. This is logical for it is the deficiency notice that gives rise to the presumption of correctness of the Secretary’s determination (and an assessment follows if the taxpayer does not file a petition with the Tax Court to redetermine a deficiency). For policy reasons, the burden should not necessarily vary from one forum to another. Some courts have concluded that the debtor has the burden of proof when objecting to a tax claim in bankruptcy. See In re Landbank Equity Corp., 973 F.2d 265, 269-71 (4th Cir.1992); Resyn Corp. v. United States, 851 F.2d 660, 662-63 (3rd Cir.1988); Matter of Uneco, Inc., 532 F.2d 1204, 1207 (8th Cir.1976); contra: In re Placid Oil Co., 988 F.2d 554, 557 (5th Cir.1993); In re Fidelity Holding Co., LTD., 837 F.2d 696, 698 (5th Cir.1988); In re Rasbury, 130 B.R. 990, 1000-03, & n. 11 (Bankr.N.D.Ala.1991), aff'd, 141 B.R. 752 (N.D.Ala.1992); In re Dakota Industries, 131 B.R. 437, 443-45 (Bankr.D.S.D.1991). The Court concludes that the Debtors have the burden of proof with respect to" }, { "docid": "19084146", "title": "", "text": "Tax Court Rule 142. This is logical for it is the deficiency notice that gives rise to the presumption of correctness of the Secretary’s determination (and an assessment follows if the taxpayer does not file a petition with the Tax Court to redetermine a deficiency). For policy reasons, the burden should not necessarily vary from one forum to another. Some courts have concluded that the debtor has the burden of proof when objecting to a tax claim in bankruptcy. See In re Landbank Equity Corp., 973 F.2d 265, 269-71 (4th Cir.1992); Resyn Corp. v. United States, 851 F.2d 660, 662-63 (3rd Cir.1988); Matter of Uneco, Inc., 532 F.2d 1204, 1207 (8th Cir.1976); contra: In re Placid Oil Co., 988 F.2d 554, 557 (5th Cir.1993); In re Fidelity Holding Co., LTD., 837 F.2d 696, 698 (5th Cir.1988); In re Rasbury, 130 B.R. 990, 1000-03, & n. 11 (Bankr.N.D.Ala.1991), aff'd, 141 B.R. 752 (N.D.Ala.1992); In re Dakota Industries, 131 B.R. 437, 443-45 (Bankr.D.S.D.1991). The Court concludes that the Debtors have the burden of proof with respect to the assessments and the items of income set forth in the deficiency notice and the United States has the burden with respect to more general allegations of additional income reserved by the deficiency notice and asserted in the Tax Motion. The Court concludes that in the least in the context of a § 505(a) Motion by the IRS to determine the tax liability of a debtor, as opposed to the objection by the debtor or trustee to a claim of the IRS versus the Debtor’s estate, the presumption of correctness as to the amounts set out in any statutory assessment, or deficiency notice retains its validity, and thus the debtors bear both the burden of production and persuasion. The Court need not make any conclusions of law in the context of an objection to claim in this case, and declines to do so. In the event that this analysis is incorrect and the IRS has the burden of persuasion on all issues in a proceeding under 11 U.S.C. § 505, the IRS has met its" }, { "docid": "3439272", "title": "", "text": "plaintiff must prove in order to establish a prima facie case. United States v. Continental Illinois Nat’l Bank and Trust Co. of Chicago, 889 F.2d 1248, 1253 (2d Cir.1989). If the debtor sustains that initial burden, the ultimate burden of persuasion is upon the creditor. Central Rubber Prods., Inc. v. Stafford Higgins Indus., Inc. (In re Central Rubber Prods., Inc.), 31 B.R. 865, 867 (Bankr.D.Conn.1983). Outside of the bankruptcy context, the taxpayer normally bears the burden of disproving a deficiency assessed by the Service. Burke v. Comm’r, 929 F.2d 110, 112 (2d Cir.1991). There is disagreement as to whether that rule alters the normal burden of persuasion in bankruptcy proceedings where the burden remains with a claimant. Compare Internal Revenue Serv. v. Levy (In re Landbank Equity Corp.), 973 F.2d 265, 269-71 (4th Cir.1992) (taxpayer retained burden of proving bad debt deduction in bankruptcy proceeding) with Placid Oil Co. v. Internal Revenue Serv. (Matter of Placid Oil Co.), 988 F.2d 554, 557 (5th Cir.1993) (once taxpayer-debtor produced sufficient evidence to rebut the Service’s prima facie case of nondeduetibility of claimed deductions, the Service had the ultimate burden to prove by a preponderance of the evidence that the deductions were invalid). As noted, the Service has filed a proof of claim establishing a prima facie case. The Service therefore had an allowed claim until the debtor filed an objection which arguably raised questions of fact. At that point, the debtor had the initial burden of offering evidence to support his objection. He failed to meet that burden. Legal memoranda and oral argument do not suffice as evidence sufficient to create a factual dispute. Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 526 (2d Cir.1994). Thus, to the extent the debtor’s objections rest on factual allegations, they are overruled. But that ruling is not dispositive if the Service’s claim is defective as a matter of law. See World Sav. and Loan Ass’n v. Lenz (In re Lenz), 110 B.R. 523, 525 (D.Colo.1990) (where undisputed facts showed that deficiency claim was invalid, claim was properly disallowed). For the reasons that follow, I find" }, { "docid": "10538678", "title": "", "text": "provides all information necessary to enable the IRS to prepare the return for the taxpayer.” Id. at 204-05. The Lowrie court harmonized these cases by contrasting the situation where the debtor does not cooperate with the IRS, does not sign anything, and does not admit to the taxes owing, with the situation where the debtor meets with the IRS, signs a form containing sufficient information to calculate the tax, and admits to the taxes owing. In the latter situation, the Lowrie court held that the documents signed by the debtor are appropriately treated as filed returns for purposes of § 523(a)(1)(B)(i). Lowrie, 162 B.R. at 867. The court, therefore, accepted the signed 1902-B forms admitting to the tax liability as the equivalence of a return and discharged the debtor’s tax liabilities. Id. After Lowrie, the bankruptcy court in Berard v. United States (In re Berard), 181 B.R. 653 (Bankr.M.D.Fla.1995), treated a signed form 4549 as a return for purposes of § 523(a)(1)(B)(i). The court stated that “it is important to note the acceptance of the Form 4549, and the Debtors’ consent to assessment and collection, relieved the Internal Revenue Service of certain statutory duties [from which] it would not otherwise be relieved .” Id. at 656. Appellant argues that Appellee’s failure to file a tax return precludes a discharge of his 1983 tax liabilities. Because Appellee did not file a form 1040, the question is whether, under the circumstances here, he should be deemed to have filed a required return under § 523(a) (1)(B )(i). Appellant asserts that the bankruptcy court should apply nonbankruptey law in making this determination, citing IRS v. Levy (In re Landbank Equity), 973 F.2d 265, 270 (4th Cir.1992) (holding that in objecting to a tax claim the debtor has the burden of proving any deductions). However, in Franchise Tax Board of the State of California v. MacFarlane (In re MacFarlane), 83 F.3d 1041, 1045 (9th Cir. 1996), the Ninth Circuit rejected Landbank and held that the Franchise Tax Board had the burden of proof stating that “[t]he bankruptcy code is silent on the allocation of" }, { "docid": "7794438", "title": "", "text": "part of the creditor’s entitlement, implying that it is not shifted in bankruptcy. In re Landbank Equity Corp., supra, 973 F.2d at 270, so holds, though In re Macfarlane, 83 F.3d 1041, 1045 (9th Cir.1996), is to the contrary. We acknowl edged the division of authority in In re Carlson, supra, 126 F.3d at 921, without having to choose. Today we choose, and we choose Landbank. It is supported by the general pattern of American tax law, in which “payment precedes defense, and the burden of proof, normally on the claimant, is shifted to the taxpayer,” Bull v. United States, 295 U.S. 247, 260, 55 S.Ct. 695, 79 L.Ed. 1421 (1935), and by the countless cases which hold that burden of proof is “substantive” for purposes of the Erie doctrine, e.g., Director v. Greenwich Collieries, 512 U.S. 267, 271, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994); American Dredging Co. v. Miller, 510 U.S. 443, 454, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994); Dick v. New York Life Ins. Co., 359 U.S. 437, 446, 79 S.Ct. 921, 3 L.Ed.2d 935 (1959); Koppers Co. v. Aetna Casualty & Surety Co., 98 F.3d 1440, 1446 (3d Cir.1996), in recognition of the critical importance of burden of proof to a person’s rights. Illinois has given its taxing authorities an entitlement to collect a penalty tax pursuant to a Notice of Penalty Liability that is defeasible only if the taxpayer can persuade the adjudicator that the tax is not due. That is different from an entitlement to collect the taxes listed in the notice upon proof by the state that the tax is due. On the latter interpretation, the Notice of Penalty Liability really is just a notice, conferring no rights, adding nothing to the Notice of Tax Liability; on the former view, which seems to us the sound view, the Notice of Penalty Liability creates a defeasible right. Congress can alter entitlements in bankruptcy, and sometimes does so, but there is no indication that it meant to shift the burden of proof from taxpayer to tax collector. Rather the contrary. The Code itself grants" }, { "docid": "2290000", "title": "", "text": "or the debtor-in-possession “carries the burden of going forward to meet, overcome, or at least equalize, the creditor’s evidence.” In re Koontz, 71 B.R. at 610. If the debtor carries its burden, then the ultimate burden of persuasion by a preponderance of the evidence remains with the credi tor. Id.; see also In re Fullmer, 962 F.2d 1463, 1466 (10th Cir.1992). In contrast, in tax litigation the IRS’s “statutory notice of deficiency is presumed correct; the burden rests on the taxpayer to establish that the determination of income is erroneous.” Jones v. C.I.R., 903 F.2d 1301, 1303 (10th Cir.1990); see also Welch v. Helvering, 290 U.S. Ill, 115, 54 S.Ct. 8, 9, 78 L.Ed. 212 (1933) (IRS’s assessment presumed correct and taxpayer has burden of proving it wrong). Thus, the question of which burden of proof standard is applicable arises when the taxpayer-debtor seeks to have a bankruptcy court determine his tax liability. The IRS claims the tax litigation burden of proof should apply, thereby making Domme responsible for proving the IRS’s tax assessment is incorrect, and cites several cases supporting its position. For example, in In re Landbank Equity Corp., 973 F.2d 265, 269-71 (4th Cir.1992), the court stated: [W]e find nothing in the plain language of the Bankruptcy Code that expresses an intent to alter the burdens of proof or persuasion in the context of a disputed claim against the bankruptcy estate. When a dispute arises, the code provides that it be resolved by the bankruptcy court or, in the case of a non-“core” dispute, by the district court. Subject to some exceptions, the code expressly provides to the bankruptcy court jurisdiction to “determine the amount or legality of any tax” assessed against the debtor. See 11 U.S.C. § 505(a)(1). Turning to the specific question at hand, it is well established that matters of proof, such as are presented in the bankruptcy trustee’s claimed tax deduction, are properly considered to be a part of the substantive tax laws.... [N]o portion of the Bankruptcy Code expresses a policy or intent to replace any aspect of the federal tax law" }, { "docid": "17804142", "title": "", "text": "IRS v. Levy (In re Landbank Equity Corp.), 973 F.2d 265, 269-71 (4th Cir.1992) (taxpayer retains burden), with Placid Oil Co. v. IRS (In re Placid Oil Co.), 988 F.2d 554, 557 (5th Cir.1993) (IRS bears final burden)'. We agree with the bankruptcy court and the district court that we need not determine this circuit’s rule in this case because even if the IRS bore the burden of proof (which, at trial, the IRS thought it did), in the face of the IRS’ claim in bankruptcy the Carlsons nevertheless bore the burden of going forward, which required them to produce something sufficient to defeat the IRS’ prima facie case. See Placid Oil, 988 F.2d at 557 (pursuant to 11 U.S.C. § 502 and Fed. R. Bankr.P. 3001(f), proof of claim is prima facie evidence of validity and amount; burden of going forward then shifts to objecting party, who must bring forth evidence equal in probative force; only then does burden revert to claimant to prove validity of claim by preponderance of the evidence); Allegheny, 954 F.2d at 173-74 (same); Fullmer, 962 F.2d at 1466 (same). According to the bankruptcy court, the Carl-sons failed at that task; they did not make a showing sufficient to rebut the penalty portion of the IRS’ claim. We find no error in that determination. The Carlsons provided no evidence that they exercised ordinary care and prudence in regard to their 1990, 1991, and 1992 income taxes. They presented no evidence that they attempted to conserve assets to meet their tax obligations. Paying taxes is one of only two sure things in life, yet the Carlsons allowed their tax liabilities to build over 3 years without taking significant steps to reduce or meet those liabilities. For instance, the Carlsons did not set aside funds out of Mr. Carlson’s draw from his firm, make periodic payments when they could, seek financing during those years, or sell their Indiana property, which would have satisfied a large chunk of the IRS’ bill. Mr. Carlson asserts that his son’s medical bills totaled $170,000 over the 3 years in question. This" }, { "docid": "8103575", "title": "", "text": "in a civil action. The application of this rule is problematic when the claimant is a taxing authority. Un like an ordinary plaintiff in a civil action, the burden of proof in a contest involving a tax assessment rests with the taxpayer. United States v. Janis, 428 U.S. 438, 440, 96 S.Ct. 3021, 3025, 49 L.Ed.2d 1046 (1976); Helvering v. Taylor, 293 U.S. 507, 515, 55 S.Ct. 287, 290-91, 79 L.Ed. 623 (1935); United States v. Rexach, 482 F.2d 10, 17 (1st Cir.1973), cert. denied 414 U.S. 1039, 94 S.Ct. 540, 38 L.Ed.2d 330 (1973). This rule is supported by “the presumption of administrative regularity; the likelihood that the táxpayer will have access to the relevant information; and the desirability of bolstering the record-keeping requirements of the Code.” Rexach, 482 F.2d at 16. Psaty v. United States, 442 F.2d 1154, 1160 (3rd Cir.1971). In Rexach, Judge Coffin further stated that if the burden were placed on the government in an action to collect assessed taxes it “would encourage taxpayer delay and inaction thereby imposing on the government the costs and burden both of borrowing money to meet the gap of unpaid taxes and of initiating litigation. It would also undermine the record keeping requirements thereby making the government’s case more difficult if not impossible to establish.” 482 F.2d at 17. In the bankruptcy claim context, however, a majority of courts place the burden of proof on taxing authorities. Franchise Tax Board, of California. v. MacFarlane (In re MacFarlane), 83 F.3d 1041 (9th Cir.1996); Placid Oil Co. v. I.R.S. (In re Placid Oil Co.), 988 F.2d 554 (5th Cir.1993); California State Board of Equalization v. Official Unsecured Creditors Committee (In re Fidelity Holding Co., Ltd.), 837 F.2d 696 (5th Cir.1988); Gran v. I.R.S. (In re Gran), 964 F.2d 822 (8th Cir.1992); In re Premo, supra; and In re Dakota Industries, Inc., 131 B.R. 437 (Bankr.D.S.D.1991). In contrast, other courts hold that the burden of proof in bankruptcy cases remains on the taxpayer. United States v. Charlton, 2 F.3d 237 (7th Cir.1993); Internal Revenue Service v. Levy (In re Landbank Equity Corp.)," }, { "docid": "22641464", "title": "", "text": "Revenue, 168 Ill. 2d 247, 256-261, 659 N. E. 2d 961, 966-968 (1995). The Court of Appeals for the Seventh Circuit accordingly ruled for the Department of Revenue. 179 F. 3d, at 550. The Court of Appeals thought the trustee may have satisfied his burden of production by identifying Pluhar as the financial officer but, in any event, had not satisfied his burden of persuasion. Because Stoecker was the president and, as far as the record showed, he and Pluhar were the only officers, each would have been involved in Chandler’s tax affairs. Ibid. While it is true that failure to pay must be willful (at least grossly negligent) to justify the penalty under Illinois law, see Branson, supra, at 254-255, 659 N. E. 2d, at 965, and true that Chandler had an opinion letter from a reputable lawyer that no tax was due because of certain details of the lease-purchase agreement, there was no evidence that Stoecker ever saw the letter or relied on it, and nothing else bearing on the issue of willfulness. See 179 F. 3d, at 550-551. Obviously, the burden of proof was critical to the resolution of the case, which the Department of Revenue won because the Court of Appeals held that the burden remained on the trustee, just as it would have been on the taxpayer had the proceedings taken place outside of bankruptcy. The Courts of Appeals are divided on this point: the Seventh Circuit joined the Third and Fourth Circuits in leaving the burden on the taxpayer. See Resyn Corp. v. United States, 851 F. 2d 660, 663 (CA3 1988); In re Landbank Equity Corp., 973 F. 2d 265, 270-271 (CA4 1992). The Courts of Appeals for the Fifth, Eighth, Ninth, and Tenth Circuits have come out the other way. See In re Placid Oil Co., 988 F. 2d 554, 557 (CA5 1993); In re Brown, 82 F. 3d 801, 804-805 (CA8 1996); In re Macfarlane, 83 F. 3d 1041, 1044-1045 (CA91996), cert. denied, 520 U. S. 1115 (1997); In re Fullmer, 962 F. 2d 1468, 1466 (CA10 1992). We granted certiorari" }, { "docid": "22641465", "title": "", "text": "See 179 F. 3d, at 550-551. Obviously, the burden of proof was critical to the resolution of the case, which the Department of Revenue won because the Court of Appeals held that the burden remained on the trustee, just as it would have been on the taxpayer had the proceedings taken place outside of bankruptcy. The Courts of Appeals are divided on this point: the Seventh Circuit joined the Third and Fourth Circuits in leaving the burden on the taxpayer. See Resyn Corp. v. United States, 851 F. 2d 660, 663 (CA3 1988); In re Landbank Equity Corp., 973 F. 2d 265, 270-271 (CA4 1992). The Courts of Appeals for the Fifth, Eighth, Ninth, and Tenth Circuits have come out the other way. See In re Placid Oil Co., 988 F. 2d 554, 557 (CA5 1993); In re Brown, 82 F. 3d 801, 804-805 (CA8 1996); In re Macfarlane, 83 F. 3d 1041, 1044-1045 (CA91996), cert. denied, 520 U. S. 1115 (1997); In re Fullmer, 962 F. 2d 1468, 1466 (CA10 1992). We granted certiorari to resolve the issue, 528 U. S. 1068 (2000), and now affirm. II Creditors’ entitlements in bankruptcy arise in the first instance from the underlying substantive law creating the debtor’s obligation, subject to any qualifying or contrary provisions of the Bankruptcy Code. See Butner v. United States, 440 U. S. 48, 55 (1979); Vanston Bondholders Protective Comm. v. Green, 329 U. S. 156, 161-162 (1946). The “basic federal rule” in bankruptcy is that state law governs the substance of claims, Butner, supra, at 57, Congress having “generally left the determination of property rights in the assets of a bankrupt’s estate to state law,” 440 U. S., at 54 (footnote omitted). “Unless some federal interest requires a different result, there is no reason why [the state] interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding.” Id., at 55. In this case, the bankruptcy estate’s obligation to the Illinois Department of Revenue is established by that State’s tax code, which puts the burden of proof on the responsible officer of" }, { "docid": "6760213", "title": "", "text": "Opinion where the bankruptcy court appears to have applied an improper burden of proof. Since the factual issues asserted by the IRS are dependent upon the burden of proof employed by the bankruptcy court, this Court shall not address those factual issues as the IRS’ appeal may be resolved by application of the proper burden of proof. . Debtor law firm has in fact practiced under five different names, originally had its greatest presence in Pittsburgh, Pennsylvania and had offices in several cities including, at one time, Washington D.C. The claimed expenses at issue in this appeal arose following the defection of debtor’s Washington D.C. office and in part involved another Washington D.C. firm which was approached as a potential merger partner. . Their is a split among the circuits concerning where the burden of persuasion lies when the IRS is a claimant in bankruptcy. The Fourth and Seventh Circuits agree with the Third Circuit. See In re Landbank Equity Corp., 973 F.2d 265 (4th Cir.1992); U.S. v. Charlton, 2 F.3d 237 (7th Cir.1993). However, the Fifth, Eighth, Ninth and Tenth Circuits have come to an opposite result, holding that in bankruptcy cases the ultimate burden of proof rests with the IRS. See Matter of Placid Oil Co., 988 F.2d 554 (5th Cir.1993); In re Brown, 82 F.3d 801 (8th Cir.1996); In re Macfarlane, 83 F.3d 1041 (9th Cir.1996); In re Fullmer, 962 F.2d 1463 (10th Cir.1992). This Court is, of course, constrained to follow the Third Circuit holding in Resyn." }, { "docid": "10538679", "title": "", "text": "Form 4549, and the Debtors’ consent to assessment and collection, relieved the Internal Revenue Service of certain statutory duties [from which] it would not otherwise be relieved .” Id. at 656. Appellant argues that Appellee’s failure to file a tax return precludes a discharge of his 1983 tax liabilities. Because Appellee did not file a form 1040, the question is whether, under the circumstances here, he should be deemed to have filed a required return under § 523(a) (1)(B )(i). Appellant asserts that the bankruptcy court should apply nonbankruptey law in making this determination, citing IRS v. Levy (In re Landbank Equity), 973 F.2d 265, 270 (4th Cir.1992) (holding that in objecting to a tax claim the debtor has the burden of proving any deductions). However, in Franchise Tax Board of the State of California v. MacFarlane (In re MacFarlane), 83 F.3d 1041, 1045 (9th Cir. 1996), the Ninth Circuit rejected Landbank and held that the Franchise Tax Board had the burden of proof stating that “[t]he bankruptcy code is silent on the allocation of the ultimate burden of proof in this case. In the absence of a statutory directive, we consider it appropriate to turn to policy considerations that underlie the bankruptcy code.” Therefore, because the Code does not define what “a return, if required” means, MacFarlane supports the view that the bankruptcy court may appropriately consider policy considerations behind the bankruptcy law in applying this language in § 523(a)(1)(B)(i) and is not limited to just nonbankruptcy law. Even if nonbankruptcy law is the sole source of reference, the Germantown decision supports the view that all the requirements for filing a tax return on an approved form do not need to be satisfied in order for the document to constitute a return where the taxpayer acts in good faith, makes what it deems the appropriate return, and discloses all relevant information. 309 U.S. at 309-10, 60 S.Ct. at 568-69. Appellant also argues that a return prepared by the IRS and not signed by the taxpayer is not a filed return. While this is the general rule, exceptions to this" }, { "docid": "16850994", "title": "", "text": "personal liability for unpaid tax debts survive bankruptcy.\"); Matter of Fein, 22 F.3d 631, 633 (5th Cir.1994) (‘‘[I]n the case of individual debtors, Congress consciously opted to place a higher priority on revenue collection than on debtor rehabilitation or ensuring a ‘fresh start.’ \"), . ROA, vol. 2, p. 13 (emphasis added). . Tel-Phonic Servs., Inc. v. TBS Intern., Inc., 975 F.2d 1134, 1137 (5th Cir.1992) (\"A party will not be heard to appeal the propriety of an order to which it agreed.\"); Hunt v. Bankers Trust Co., 799 F.2d 1060, 1066 (5th Cir.1986). Moreover, the IRS asserts that we should not review any error which was waived by consent, and if all errors complained of come within the waiver, the judgment must be affirmed. Pacific R.R. v. Ketchum, 101 U.S. 289, 295, 11 Otto 289, 25 L.Ed. 932 (1880). .See Pardee v. Great Lakes Higher Educ. Corp., 218 B.R. 916, 921 (9th Cir.1998); Leeper v. Pennsylvania Higher Educ. Assistance Agency, 49 F.3d 98, 101-02 (3d Cir.1995); Fullmer v. United States, 962 F.2d 1463, 1468 (10th Cir.1992); Burns v. United States, 887 F.2d 1541, 1543 (11th Cir.1989); Hanna, 872 F.2d 829, 831 (8th Cir.1989); Bradley v. United States, 936 F.2d 707, 709-10 n. 3 (2d Cir.1991) (stating in dictum that the weight of authority supports the view that a debtor is personally liable for post-petition interest on unpaid taxes). But see In re Reich, 66 B.R. 554, 557-58 (Bankr.D.Colo.1986), rev’d, 107 B.R. 299 (D.Colo.1989) and In re Frost, 19 B.R. 804, 810 (Bankr.D.Kan.1982) (stating that “[t]he notion that any creditor can show up at the debtors' doorstep after discharge is granted and attempt to collect a discharged debt is ... offensive to the concept of the debtor’s fresh start....” and concluding that \"the IRS cannot collect ... post-petition interest from the debtors after receipt of a discharge.”), vacated on relevant ground as unripe, 47 B.R. 961 (D.Kan.1985). . Leeper, 49 F.3d at 102 (3d Cir.1995). . Hanna, 872 F.2d at 831. . Heisson, 217 B.R. at 4 (relying on a number of Bankruptcy Act cases, including: United States v. River" }, { "docid": "8103576", "title": "", "text": "the government the costs and burden both of borrowing money to meet the gap of unpaid taxes and of initiating litigation. It would also undermine the record keeping requirements thereby making the government’s case more difficult if not impossible to establish.” 482 F.2d at 17. In the bankruptcy claim context, however, a majority of courts place the burden of proof on taxing authorities. Franchise Tax Board, of California. v. MacFarlane (In re MacFarlane), 83 F.3d 1041 (9th Cir.1996); Placid Oil Co. v. I.R.S. (In re Placid Oil Co.), 988 F.2d 554 (5th Cir.1993); California State Board of Equalization v. Official Unsecured Creditors Committee (In re Fidelity Holding Co., Ltd.), 837 F.2d 696 (5th Cir.1988); Gran v. I.R.S. (In re Gran), 964 F.2d 822 (8th Cir.1992); In re Premo, supra; and In re Dakota Industries, Inc., 131 B.R. 437 (Bankr.D.S.D.1991). In contrast, other courts hold that the burden of proof in bankruptcy cases remains on the taxpayer. United States v. Charlton, 2 F.3d 237 (7th Cir.1993); Internal Revenue Service v. Levy (In re Landbank Equity Corp.), 973 F.2d 265 (4th Cir.1992); Resyn Corp. v. United States, 851 F.2d 660 (3rd Cir.1988) and Cobb v. United States (In re Cobb), 135 B.R. 640 (Bankr.D.Neb.1992). I find the cases adopting the majority rule unpersuasive. Gran and Placid Oil relied solely on Fidelity for their holdings. Fidelity relied, in turn, on a case from this district and one from New York for the proposition that the government and litigants should be subject to the same burden of proof. In re WHET, Inc., 33 B.R. 424, 437 (Bankr.D.Mass.1983) and In re Avien, Inc., 390 F.Supp. 1335 (E.D.N.Y.1975), aff'd, 532 F.2d 273 (2d Cir.1976). In WHET, Judge Lavien addressed whether the procedure implemented by the court for addressing claims objections was proper. While he did state that the burden of proof is always on the claimant, the issue was neither discussed nor was it a necessary part of the decision. Significantly, he ruled otherwise in a later proceeding. See In re Mason, 118 B.R. 170 (Bankr.D.Mass.1990) (assumed without discussion burden is on debtor in action under" }, { "docid": "7794437", "title": "", "text": "confers on them, and these entitlements are then enforced consistently with the provisions of the Code governing preferences, priority, and other issues that arise in the marshaling and collection of debts from a bankrupt debtor. An equity free-for-all would engender confusion and uncertainty and increase the strategic incentives to petition for bankruptcy either of debtors, if the bankruptcy court curtailed entitlements, or of creditors, if it expanded them. The closest to the power here asserted of a free-wheeling equitable discretion to cut down entitlements when they are sought to be enforced in a bankruptcy proceeding is the power of equitable subordination. 11 U.S.C. § 510. But it must be exercised case by case and not over a whole class of claims. United States v. Reorganized CF & I Fabricators of Utah, Inc., 518 U.S. 213, 228-29, 116 S.Ct. 2106, 135 L.Ed.2d 506 (1996); United States v. Noland, supra, 517 U.S. at 543, 116 S.Ct. 1524; cf. In re Envirodyne Industries, Inc., 79 F.3d 579, 581 (7th Cir.1996). Burden of proof is rightly classified as a part of the creditor’s entitlement, implying that it is not shifted in bankruptcy. In re Landbank Equity Corp., supra, 973 F.2d at 270, so holds, though In re Macfarlane, 83 F.3d 1041, 1045 (9th Cir.1996), is to the contrary. We acknowl edged the division of authority in In re Carlson, supra, 126 F.3d at 921, without having to choose. Today we choose, and we choose Landbank. It is supported by the general pattern of American tax law, in which “payment precedes defense, and the burden of proof, normally on the claimant, is shifted to the taxpayer,” Bull v. United States, 295 U.S. 247, 260, 55 S.Ct. 695, 79 L.Ed. 1421 (1935), and by the countless cases which hold that burden of proof is “substantive” for purposes of the Erie doctrine, e.g., Director v. Greenwich Collieries, 512 U.S. 267, 271, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994); American Dredging Co. v. Miller, 510 U.S. 443, 454, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994); Dick v. New York Life Ins. Co., 359 U.S. 437, 446, 79 S.Ct." }, { "docid": "17804141", "title": "", "text": "exercises ordinary business care and prudence “if he ma[kes] reasonable efforts to conserve sufficient assets in marketable form to satisfy his tax liability and nevertheless was unable to pay all or a portion of the tax when it became due.” Id. “Undue hardship” means more than mere inconvenience. 26 C.F.R. § 1.6161-l(b). It must be substantial financial hardship, “for example, loss due to the sale of property at a sacrifice price.” Id. ' Generally the taxpayer bears the burden of proof when disputing tax liabilities with the IRS. See Helvering v. Taylor, 293 U.S. 507, 515, 55 S.Ct. 287, 290-91, 79 L.Ed. 623 (1935). In bankruptcy, however, the ultimate burden of proof lies on the claimant. In re Allegheny Int’l, Inc., 954 F.2d 167 (3rd Cir.1992); Fullmer v. United States (In re Fullmer), 962 F.2d 1463 (10th Cir.1992). The courts of appeals are split on whether the IRS or the taxpayer has the ultimate burden of proof when a debtor objects in bankruptcy to the denial of deductions or abatements of their tax bills. Compare IRS v. Levy (In re Landbank Equity Corp.), 973 F.2d 265, 269-71 (4th Cir.1992) (taxpayer retains burden), with Placid Oil Co. v. IRS (In re Placid Oil Co.), 988 F.2d 554, 557 (5th Cir.1993) (IRS bears final burden)'. We agree with the bankruptcy court and the district court that we need not determine this circuit’s rule in this case because even if the IRS bore the burden of proof (which, at trial, the IRS thought it did), in the face of the IRS’ claim in bankruptcy the Carlsons nevertheless bore the burden of going forward, which required them to produce something sufficient to defeat the IRS’ prima facie case. See Placid Oil, 988 F.2d at 557 (pursuant to 11 U.S.C. § 502 and Fed. R. Bankr.P. 3001(f), proof of claim is prima facie evidence of validity and amount; burden of going forward then shifts to objecting party, who must bring forth evidence equal in probative force; only then does burden revert to claimant to prove validity of claim by preponderance of the evidence); Allegheny, 954" }, { "docid": "22029837", "title": "", "text": "in deciding whether to import the taxpayer’s ultimate burden of proof into bankruptcy proceedings. See, e.g., In re Wilhelm, 173 B.R. 398, 401-02 (Bankr.E.D.Wis.1994) (deciding that IRS bears ultimate burden); In re Premo, 116 B.R. 515, 518-24 (Bankr.E.D.Mich.1990) (same). Unfortunately, “[t]he ease law on this issue is divided with neither side making an overwhelmingly convincing argument.” Wilhelm, 173 B.R. at 402. The Fifth, Eighth and Tenth Circuits reviewed the issue and concluded that the taxing authority bears the ultimate burden of proof in bankruptcy proceedings. See Matter of Placid Oil Co., 988 F.2d 554, 557 (5th Cir.1993); In re Gran, 964 F.2d 822, 827-28 (8th Cir.1992); In re Full-mer, 962 F.2d 1463, 1466 (10th Cir.1992). The Third and Fourth Circuits reached the opposite conclusion. Resyn Corp. v. United States, 851 F.2d 660, 663 (3d Cir.1988); In re Landbank Equity Corp., 973 F.2d 265, 268-72 (4th Cir.1992). The Board urges us to adopt the reasoning of Landbank that bankruptcy courts are generally required to apply the substantive law under which the claim arose, that there is no indication that Congress implicitly intended the bankruptcy code to amend the substantive tax law regarding the taxpayer’s burden of proof, and that equity considerations do not provide a basis for shifting the taxpayer’s burden of proof to the government. Landbank, 973 F.2d at 270-72. While we agree with the Board that Landbank is strong support for the Board’s position, we do not agree with its analysis or conclusion. Nor do we consider Landbank controlling or persuasive because it is the only circuit decision to rule specifically on the allocation of burdens in a bankruptcy proceeding when a debtor’s bad debt deduction is challenged. Other circuit decisions clearly establish a broad rule that taxing authorities are to be treated the same as other claimants and must therefore bear the ultimate burden of proving their claims in bankruptcy. See, e.g., Matter of Fidelity Holding Co., 837 F.2d 696, 698 (5th Cir.1988) (“The Bankruptcy Code ... does not differentiate between government and private claimants when proofs of claim are filed.”). The logic of that rule is compelling" }, { "docid": "3439271", "title": "", "text": "¶ 502.01, at p. 502-16 (15th ed. 1994) (“Unless the ... objector ... introduces evidence as to the invalidity of the claim or the exeessiveness of its amount, the claimant need offer no further proof of the merits the claim.”). Further, “[wjhen the taxpayer introduces evidence that refutes the government’s proof of claim in a bankruptcy proceeding, any burden shifting to the government of coming forward with relevant evidence involves only those elements that the taxpayer has challenged.” Gran v. Internal Revenue Serv. (In re Gran), 964 F.2d 822, 828 (8th Cir.1992). Moreover, if a debtor files an affirmative defense, the debtor has the burden of proof as to that defense. In re Rasbury, supra, 130 B.R. at 1003 (taxpayers had burden of proving safe harbor affirmative defense to withholding liability); In re Clark, 106 B.R. 602, 603 (Bankr.E.D.Mo.1989) (innocent spouse defense to tax liability); In re Ousley, 92 B.R. 278, 282-83 (Bankr.S.D.Ohio 1988) (duress defense to contractual liability). A defense is affirmative if the absence of the defense is not an element that the plaintiff must prove in order to establish a prima facie case. United States v. Continental Illinois Nat’l Bank and Trust Co. of Chicago, 889 F.2d 1248, 1253 (2d Cir.1989). If the debtor sustains that initial burden, the ultimate burden of persuasion is upon the creditor. Central Rubber Prods., Inc. v. Stafford Higgins Indus., Inc. (In re Central Rubber Prods., Inc.), 31 B.R. 865, 867 (Bankr.D.Conn.1983). Outside of the bankruptcy context, the taxpayer normally bears the burden of disproving a deficiency assessed by the Service. Burke v. Comm’r, 929 F.2d 110, 112 (2d Cir.1991). There is disagreement as to whether that rule alters the normal burden of persuasion in bankruptcy proceedings where the burden remains with a claimant. Compare Internal Revenue Serv. v. Levy (In re Landbank Equity Corp.), 973 F.2d 265, 269-71 (4th Cir.1992) (taxpayer retained burden of proving bad debt deduction in bankruptcy proceeding) with Placid Oil Co. v. Internal Revenue Serv. (Matter of Placid Oil Co.), 988 F.2d 554, 557 (5th Cir.1993) (once taxpayer-debtor produced sufficient evidence to rebut the Service’s prima facie" }, { "docid": "22029836", "title": "", "text": "Oliver v. United States, 921 F.2d 916, 919 (9th Cir.1990). The taxpayer is required to prove the merits of a claimed deduction by a preponderance of the evidence. Rockwell v. Commissioner, 512 F.2d 882, 885 (9th Cir.), cert. denied, 423 U.S. 1015, 96 S.Ct. 448, 46 L.Ed.2d 386 (1975). Similarly, under California law, a taxpayer claiming a deduction bears the ultimate burden of proving facts to justify the deduction. Krumpotich v. Franchise Tax Bd., 26 Cal. App.4th 1667, 1671, 31 Cal.Rptr.2d 896, 899, review denied (Oct. 13, 1994). In bankruptcy proceedings, a properly filed claim constitutes prima facie evidence of the validity and amount of the claim. 11 U.S.C. §§ 501, 502(a). The debtor or trustee has the burden of presenting evidence to rebut this prima facie validity. If that burden is met, the creditor must present evidence to prove the claim. The ultimate burden of proof therefore is on the creditor. See In re Holm, 931 F.2d 620, 623 (9th Cir.1991); United States v. Sampsell, 224 F.2d 721, 722-23 (9th Cir.1955). Courts have struggled in deciding whether to import the taxpayer’s ultimate burden of proof into bankruptcy proceedings. See, e.g., In re Wilhelm, 173 B.R. 398, 401-02 (Bankr.E.D.Wis.1994) (deciding that IRS bears ultimate burden); In re Premo, 116 B.R. 515, 518-24 (Bankr.E.D.Mich.1990) (same). Unfortunately, “[t]he ease law on this issue is divided with neither side making an overwhelmingly convincing argument.” Wilhelm, 173 B.R. at 402. The Fifth, Eighth and Tenth Circuits reviewed the issue and concluded that the taxing authority bears the ultimate burden of proof in bankruptcy proceedings. See Matter of Placid Oil Co., 988 F.2d 554, 557 (5th Cir.1993); In re Gran, 964 F.2d 822, 827-28 (8th Cir.1992); In re Full-mer, 962 F.2d 1463, 1466 (10th Cir.1992). The Third and Fourth Circuits reached the opposite conclusion. Resyn Corp. v. United States, 851 F.2d 660, 663 (3d Cir.1988); In re Landbank Equity Corp., 973 F.2d 265, 268-72 (4th Cir.1992). The Board urges us to adopt the reasoning of Landbank that bankruptcy courts are generally required to apply the substantive law under which the claim arose, that there is" } ]

[ { "docid": "23399347", "title": "", "text": "damages. Kolegas v. Heftel Broadcasting Corp., 154 Ill.2d 1, 180 Ill.Dec. 307, 312, 607 N.E.2d 201, 206 (1992); Girsberger v. Kresz, 261 Ill.App.3d 398, 198 Ill.Dec. 940, 952, 633 N.E.2d 781, 793 (1993); Brown & Williamson Tobacco Corp. v. Jacobson, supra, 713 F.2d at 268. But the point has been waived. The defendants base their attack on the judgment on other and less promising grounds. The first, which is limited to Christopher, is that the district court did not obtain personal jurisdiction over him under Illinois’ long-arm statute, because of the “fiduciary shield” doctrine. This doctrine, recognized by the courts of many states including Illinois—though also much criticized and by many jurisdictions rejected, see, e.g., Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 527 N.Y.S.2d 195, 199-202, 522 N.E.2d 40, 44-47 (1988); Columbia Briargate Co. v. First National Bank, 713 F.2d 1052, 1055-77 (4th Cir.1983); Robert A. Koenig, Comment, “Personal Jurisdiction and the Corporate Employee: Minimum Contacts Meet the Fiduciary Shield,” 38 Stan.L.Rev. 813 (1986)— denies personal jurisdiction over an individual whose presence and activity in the state in which the suit is brought were solely on behalf of his employer or other principal. Rollins v. Ellwood, 141 Ill.2d 244, 152 Ill.Dec. 384, 395-400, 565 N.E.2d 1302, 1313-18 (1990); People ex rel. Hartigan v. Kennedy, 215 Ill.App.3d 880, 159 Ill.Dec. 438, 445-46, 576 N.E.2d 107, 114-15 (1991). So a policeman sent into a state to serve an arrest warrant cannot be sued there for false arrest, although his superiors, who sent him, can be by virtue of his having come into the state on their business. That was Rollins. If Christopher’s action in coming into Illinois to fire and defame Rice was done solely on behalf of Nova, he is under the fiduciary shield and this regardless of whether he exercised discretion rather than merely carrying out precise orders mechanically. The Kennedy case shielded directors of a charitable organization under the doctrine. Marine Midland Bank, N.A. v. Miller, 664 F.2d 899 (2d Cir.1981), is a similar case, although it is an impaired precedent because it was an interpretation of New" } ]

[ { "docid": "18149079", "title": "", "text": "(W.D.Okla.1990) (relying on Ten Mile). As noted, Ten Mile’s statements about the fiduciary shield must be confined to the doctrine as applied in Wyoming. And Home-Stake assumed without deciding that Oklahoma would adopt the fiduciary shield doctrine. Accordingly, these decisions’ reliance on Ten Mile and Home-Stake was misplaced. They do not establish the existence of the fiduciary shield doctrine as a matter of Oklahoma law. Given this lack of authority, we question whether we can predict with any confidence that Oklahoma courts would graft the fiduciary shield doctrine into a long- arm statute intended to reach as far as due process allows. But similar to Home-Stake, we feel sufficiently certain that Oklahoma would not apply the fiduciary shield doctrine in this case, even if we assumed that Oklahoma courts would adopt it as a general matter. All of the fiduciary shield cases discussed above involve run-of-the-mill contract and tort claims brought against both a corporation and its fiduciary. We have not located any case in which the fiduciary shield doctrine was applied to a claim for breach of fiduciary duty, which can only be brought against the fiduciary. Some jurisdictions hold that the fiduciary shield does not apply to claims such as breach of fiduciary duty. Illinois, for example, holds that the fiduciary shield does not protect an officer or director acting to “serve his personal interests.” Rollins v. Ellwood, 141 Ill.2d 244, 152 Ill.Dec. 384, 565 N.E.2d 1302, 1318 (1990). The Fifth Circuit agrees with this approach. Lewis v. Fresne, 252 F.3d 352, 359 n. 6 (5th Cir.2001) (“ ‘[T]he shield is removed if the individual’s personal interests motivate his actions----’ ” (quoting Darovec Mktg. Grp., Inc. v. Bio-Genics, Inc., 42 F.Supp.2d 810, 819 (N.D.Ill.1999))); cf. Dodson Int’l Parts, Inc. v. Altendorf, 181 F.Supp.2d 1248, 1255 (D.Kan.2001) (relying on Lewis for the idea that “[w]hen the claim alleges or necessarily involves the personal interests or motives of the individual defendant, the fiduciary shield doctrine does not apply”). And the Southern District of New York has stated, “If any suggestion of self-dealing is made by the plaintiffs’ Complaint and other" }, { "docid": "6189981", "title": "", "text": "Young & Co. v. Bremer, 197 Ill.App.3d 30, 143 Ill. Dec. 736, 741, 554 N.E.2d 671, 676 (App.Ct. 1990) (§ 2-209 requires plaintiff to allege o,nly that defendant “performed an act or omission which caused an injury in Illinois, and that the act or omission was tortious in nature”); Heritage House Restaurants, Inc. v. Continental Funding Group, Inc., 906 F.2d 276, 282 (7th Cir.1990) (holding that jurisdiction in'misrepresentation 'and deceptive business practices case was appropriate under § 2-209, based on nonresident defendant’s alleged misrepresentations to an Illinois corporation about whether a deposit would be insured). However, Shaw and Is-grigg argue that the court lacks jurisdiction because Illinois’ fiduciary shield doctrine exempts them from the long-arm statute. We must decide whether the doctrine applies on these facts. The fiduciary shield doctrine was first recognized by the Illinois Supreme Court in Rollins v. Ellwood, 141 Ill.2d 244,152 Ill.Dec. 384, 565 N.E.2d 1302 (1990). Rollins arose after defendant Ellwood, a Maryland police officer, traveled to Illinois to take custody of plaintiff Sylvester Rollins and returned with him to Baltimore. Rollins had been arrested in East St. Louis, Illinois, and the police there had discovered an outstanding fugitive warrant for. one Ruchell Rollins issued by the Baltimore police. Believing that the plaintiff was Ruchell Rollins, the East St. Louis police held him until the Baltimore police, in the form of Ellwood, could take him back to Maryland. There it was determined that Rollins was not the person named in the fugitive warrant and he was allowed to return to Illinois. He sued Ellwood and other defendants for negligence and the intentional torts of kidnapping, unlawful restraint and conspiracy, and sought to establish personal jurisdiction under § 2-209. Ellwood filed a motion to quash service of process, arguing that the circuit court lacked personal jurisdiction over him because he was protected by the fiduciary shield doctrine. Id. at 386-88, 565 N.E.2d at 1304-06. The doctrine, which at the time of Rollins had already been adopted by several decisions of the Illinois Appellate Court, “prevents courts from asserting jurisdiction over a [nonresident] on the basis of" }, { "docid": "15207539", "title": "", "text": "plaintiffs complaint as true unless controverted by defendant’s affidavits, see Turnock v. Cope, 816 F.2d 332, 333 (7th Cir.1987), and resolves conflicts between the affidavits in plaintiffs favor. See id. This court has jurisdiction over a non-consenting, non-resident defendant only if an Illinois state court would have jurisdiction. See McIlwee v. ADM Industries, Inc., 17 F.3d 222, 223 (7th Cir.1994). An Illinois state court has jurisdiction if jurisdiction comports with the Illinois and the United States Constitutions. See RAR v. Turner Diesel, Ltd., 107 F.3d 1272, 1276 (7th Cir.1997). Personal jurisdiction must comply with the Illinois Constitution, or more specifically, Illinois due process. While the Illinois Supreme Court has offered little guidance as to how state due process differs from federal due process in the personal jurisdiction context, it has explained that “jurisdiction is to be asserted only when it is fair, just, and reasonable to require a nonresident defendant to defend an action in Illinois, considering the quality and nature of the defendant’s acts which occur in Illinois or which affect interests located in Illinois.” Rollins v. Ellwood, 141 Ill.2d 244, 275, 152 Ill.Dec. 384, 565 N.E.2d 1302 (Ill.1990). Reddick argues that it would violate Illinois due process to require him to defend an action in Illinois for events arising out of his activities as an agent of SAJBIS and on SABIS’s behalf. Specifically, he argues that the “fiduciary shield” doctrine prevents this court from exercising jurisdiction over him. In certain circumstances, Illinois due process mandates a “fiduciary shield” defense to personal jurisdiction as a matter of law. See Rollins, 141 Ill.2d at 280, 152 Ill.Dec. 384, 565 N.E.2d 1302. The fiduciary shield doctrine denies personal jurisdiction over an individual whose “presence and activity in the state in which the suit is brought were solely on behalf of his employer or principal.” Rice v. Nova Biomedical Corp., 38 F.3d 909, 912 (7th Cir.1994). The rationale underlying the doctrine is that, “[i]t is unfair and unreasonable ... to assert personal jurisdiction over an individual who [sought] the protection and benefits of Illinois law, not to serve his personal interests, but" }, { "docid": "11026596", "title": "", "text": "Fireworks, 963 F.2d 941, 945 (7th Cir.1992). Until September, 1989, a nonresident defendant could be sued in Illinois if (1) he performed one of the enumerated acts under Illinois’ long-arm statute; and (2) the minimum contacts with Illinois that due process requires were present. FMC, 892 F.2d at 1310. Courts interpreting the Illinois long-arm statute considered these two requirements separately. See, e.g., Saylor v. Dyniewski, 836 F.2d 341, 343 (7th Cir.1988); Green v. Advance Ross Electronics Corp., 86 Ill.2d 431, 56 Ill.Dec. 657, 660, 427 N.E.2d 1203, 1206 (1981). However, Illinois amended its long-arm statute, effective September 7, 1989, to add a “catch-all” provision. This provision provides that “[a] court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States.” Ill.Rev.Stat. ch. 110, para. 2-209(c) (1989). This amended provision makes the first inquiry (i.e., did defendant perform one of the enumerated acts under the Illinois long-arm statute) unnecessary because jurisdiction under the Illinois long-arm statute is co-extensive with the limits of due process. See Dehmlow, 963 F.2d at 945; FMC, 892 F.2d at 1311 n. 5; Damian Services Corp. v. PLC Services, Inc., 763 F.Supp. 369, 371 (N.D.Ill.1991); Kinney v. Anchorlock Corp., 736 F.Supp. 818, 825 n. 5 (N.D.Ill.1990). Stated differently, if due process is satisfied, jurisdiction is met under Section 2-209(c) of Illinois’ long-arm statute irrespective of whether a defendant has done any of the acts set forth under Section 2 — 209(a)(1)—(14). Ill.Rev.Stat. ch. 110, paras. 2-209(a, c) (1989); Damian, 763 F.Supp. at 371; Kinney, 736 F.Supp. at 825 n. 5. This does not end our analysis. The Illinois Supreme Court in Rollins v. Ellwood, 141 Ill.2d 244, 152 Ill.Dec. 384, 565 N.E.2d 1302 (1990), recently intimated that a new two-step inquiry may be required. In deciding whether it is fair to subject a nonresident defendant to Illinois jurisdiction a court may not look solely to the Illinois long-arm statute and the federal due process clause. Rollins, 152 Ill.Dec. at 398, 565 N.E.2d at 1316. See People ex rel. Hartigan v. Kennedy, 215 Ill.App.3d 880," }, { "docid": "11163062", "title": "", "text": "ISI Ontario. This claim (which we call the fiduciary claim) depends on establishing that S&A served as counsel to one or both of the firms, as opposed to Reits-ma personally. What S&A wants- — -and what the district court gave it — -is the opportunity to litigate these claims in Canada rather than the United States. Observing that neither Menard nor Wood performed any of the questioned acts in Illinois, S&A contended that the courts of that state lack personal jurisdiction over it. Because Fed.R.Civ.P. 4(k)(l)(A) links personal jurisdiction in federal cases to the jurisdiction of the state courts, if the state courts may not exercise jurisdiction then neither may the federal courts, on S&A’s view, unless a federal statute authorizes nationwide (or worldwide) service of process — which the Lanham Act does not. The district court agreed with this submission, held that S&A lacks “minimum contacts” with the State of Illinois, and added that Illinois would not in any event exercise jurisdiction even if the Constitution permitted it. Illinois employs the fiduciary-shield doctrine, see Rollins v. Ellwood, 141 Ill.2d 244, 278, 152 Ill.Dec. 384, 565 N.E.2d 1302, 1314 (1990), under which a person who enters the state solely as fiduciary for another may not be sued in Illinois. S&A acted only as a fiduciary for Reitsma, the district court concluded, and therefore may not be sued in Illinois. (This conclusion effectively rejected the fiduciary claim on the merits, for if S&A never represented ISI International or ISI Ontario it had no fiduciary duties to them.) The district court added that even if Illinois could exercise personal jurisdiction over S&A, the suit still would be dismissed on the ground of forum non conveniens. Ottawa is a superior location for this' litigation, the judge wrote. The premise of the district court’s opinion, and of the parties’ appellate briefs, is that if the state courts in Illinois would not exercise personal jurisdiction over S&A, then federal courts may not do so. That premise is false. The due process clause protects persons from being haled into a court unless they have “minimum contacts”" }, { "docid": "15207540", "title": "", "text": "Illinois.” Rollins v. Ellwood, 141 Ill.2d 244, 275, 152 Ill.Dec. 384, 565 N.E.2d 1302 (Ill.1990). Reddick argues that it would violate Illinois due process to require him to defend an action in Illinois for events arising out of his activities as an agent of SAJBIS and on SABIS’s behalf. Specifically, he argues that the “fiduciary shield” doctrine prevents this court from exercising jurisdiction over him. In certain circumstances, Illinois due process mandates a “fiduciary shield” defense to personal jurisdiction as a matter of law. See Rollins, 141 Ill.2d at 280, 152 Ill.Dec. 384, 565 N.E.2d 1302. The fiduciary shield doctrine denies personal jurisdiction over an individual whose “presence and activity in the state in which the suit is brought were solely on behalf of his employer or principal.” Rice v. Nova Biomedical Corp., 38 F.3d 909, 912 (7th Cir.1994). The rationale underlying the doctrine is that, “[i]t is unfair and unreasonable ... to assert personal jurisdiction over an individual who [sought] the protection and benefits of Illinois law, not to serve his personal interests, but to serve those of his employer or principal.” Rollins, 141 Ill.2d at 280, 152 Ill.Dec. 384, 565 N.E.2d 1302. There are two important limitations to the shield: (1) the shield is removed if the individual’s personal interests motivated his actions, see Rice, 38 F.3d at 912; and (2) the shield generally does not apply when the individual’s actions are discretionary. See Brujis v. Shaw, 876 F.Supp. 975, 978 (N.D.Ill.1995). As noted, the fiduciary shield denies personal jurisdiction if the individual’s actions were “solely on behalf of his employer.” Rice, 38 F.3d at 912. If the individual “was acting also on his own behalf — to serve his personal interests,” the shield does not apply. Id. (emphasis added). The personal interests need not be pecuniary — they may be dislike or malice towards the plaintiff. See id.; Roy v. Austin Co., 1994 U.S.Dist. LEXIS 16254 at *6-7 (N.D.Ill.1994) (holding, on a motion to dismiss, that plaintiffs allegation that defendant’s actions were “without justification based on the legitimate business interests of [the employer], and were performed maliciously”" }, { "docid": "13714868", "title": "", "text": "1200, 1201-02 (7th Cir.1997); Indianapolis Colts, Inc. v. Metro Baltimore Football Club Ltd. Partnership, 34 F.3d 410, 411 (7th Cir.1994). Indeed, “the state in which the injury (and therefore the tort) occurs may require the wrongdoer to answer for its deeds even if events were put in train outside its borders.” Janmark, Inc., 132 F.3d 1200, 1202. Because Clipp’s alleged injury occurred in Illinois, the critical issue is whether defendants “entered” Illinois in some fashion. Clipp claims that defendants solicited orders in Illinois, advertised LOCK-ITS™ on its Internet web site, and advertised its product in Mary Jane’s Beanie World magazine, a magazine circulated in Illinois and nationally. First, Whelan claims that his contacts ■ with Illinois were made solely on behalf of Tag Bags, Inc. in his capacity as president. He argues that the fiduciary shield doctrine prevents this Court from exercising personal jurisdiction over him as an individual. We agree. The fiduciary shield doctrine “denies personal jurisdiction over an individual whose presence and activity in the state in which the suit is brought were solely on behalf of his employer or other principal.” Rice v. Nova Biomedical Corp., 38 F.3d 909, 912 (7th Cir.1994), cert. denied, 514 U.S. 1111, 115 S.Ct. 1964, 131 L.Ed.2d 855 (1995). Accord Rollins v. Ellwood, 141 Ill.2d 244, 152 Ill.Dec. 384, 565 N.E.2d 1302, 1313-1318 (1990). The doctrine serves to prevent the “perceived unfairness” of forcing an individual to defend a lawsuit brought against him personally in a forum in which he performed the only relevant contacts for the benefit of his employer and not for his own benefit. Vandeveld, 877 F.Supp. at 1163; Brujis v. Shaw, 876 F.Supp. 975, 977 (N.D.Ill.1995). Nonetheless, the doctrine will not apply if the defendant is the alter ego of the entity for which he is a fiduciary. Brujis, 876 F.Supp. at 978-979. The fiduciary shield doctrine is an equitable doctrine and is, therefore, applied with discretion. Burnhope v. Nat’l Mortgage Equity Corp., 208 Ill.App.3d 426, 153 Ill.Dec. 398, 567 N.E.2d 356, 363-364 (1990). The amended complaint does not allege that Whelan’s contacts with Illinois were performed in" }, { "docid": "6189986", "title": "", "text": "The Rice court said only that “[i]f [the defendant’s] action in coming into Illinois to fire and defame [the plaintiff] was done solely on behalf of [the defendant’s employer], he is under the fiduciary shield and this regardless of whether he exercised discretion rather than merely carry ing out precise orders mechanically.” Id. at 912. Rice’s statement about discretion was clearly dictum, and we do not think that the court intended to settle the issue with a ■single sentence unsupported by any analysis. Thus Rice does not undermine our conclusion that all the courts that have examined the discretion issue have held that the exercise of discretion removes the defendant from the fiduciary shield’s protections. Nonetheless, in a great many fiduciary shield cases the discretion issue-does not arise at all — the courts Consider only whether the out-of-state defendant was acting on the corporation’s behalf or on his own. See e.g., Alpert v. Bertsch, 235 Ill.App.3d 452, 176 Ill.Dec. 333, 601 N.E.2d 1031 (App.Ct.1992), appeal denied, 148 Ill.2d 639, 183 Ill.Dec. 15, 610 N.E.2d 1259 (1993); Household Commercial Financial Services, Inc. v. Trump, Nos. 92 C 6920 and 92 C 5010, 1993 WL 389386 (N.D.Ill. Sept. 30, 1993); Modem Aids, Inc. v. Lil’ Drug Store Products, Inc., No. 93 C 1714, 1993 WL 239054 (N.D.Ill. June 25, 1993); Ace Novelty Co. v. Vijuk Equipment, Inc., No. 90 C 3116, 1991 WL 150191 (N.D.Ill. July 31, 1991). Thus it is not clear under Illinois law whether discretion is an essential factor to be considered in determining whether the fiduciary shield should be invoked. It is our task to ascertain, as best we can, what the Illinois Supreme Court would do if it were deciding this case. Todd v. Societe Bic, S.A., 21 F.3d 1402, 1405 (7th Cir.), cert. denied, — U.S.-, 115 S.Ct. 359, 130 L.Ed.2d 312 (1994); Heller International Corp. v. Sharp, 974 F.2d 850, 858 (7th Cir.1992). We think that court would consider the extent of the nonresident defendant’s discretion an important factor, though not a determinative one, in deciding whether an Illinois court’s jurisdiction over him was proper." }, { "docid": "13566230", "title": "", "text": "marketing activity resulting in wide circulation in the California forum. See Calder, 465 U.S. at 789, 104 S.Ct. 1482. The members or shareholders of a company with a smaller, narrower base of ownership and control compared to the National Enquirer cannot easily argue lack of control over company conduct. Although they do not correctly identify it as such, the foreign defendants’ opposition to personal jurisdiction in this matter essentially amounts to an assertion of what is known as the fiduciary shield doctrine. This doctrine, though, is a discretionary, equitable doctrine certain states have employed to limit their jurisdictional reach under their state constitutions and long-arm statutes. E.g., Marine Midland Bank, N.A. v. Miller, 664 F.2d 899 (2nd Cir.1981) (recognizing doctrine under New York’s longarm statute); Merkel Associates v. Bellofram Corp., 437 F.Supp. 612, 618-20 (W.D.N.Y.1977) (same); Torco Oil Co. v. Innovative Thermal Corp., 730 F.Supp. 126, 135 n. 20 (N.D.Ill.1989) (same); Rollins v. Ellwood, 141 Ill.2d 244, 152 Ill.Dec. 384, 565 N.E.2d 1302, 1316-18 (1990) (recognizing doctrine “under Illinois’ due process clause and the tenets of our concept of the jurisdictional power of the Illinois courts”); Mergenthaler Linotype Co. v. Leonard Storch Enterprises, 66 Ill.App.3d 789, 23 Ill.Dec. 352, 383 N.E.2d 1379, 1385 (1978) (interpretation of Illinois long-arm statute); see also Rice v. Nova Biomedical Corp., 38 F.3d 909, 912-13 (7th Cir.1994) (applying doctrine using Illinois law in a diversity case). It is not, however, a limitation imposed by federal constitutional law, Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 902 n. 3 (2nd Cir.1981); Balance Dynamics Corp. v. Schmitt Industries, 204 F.3d 683, 697-98 (6th Cir.2000); Columbia Briargate Co. v. First Nat. Bank in Dallas, 713 F.2d 1052, 1055-65 (4th Cir.1983); Kinetic Instruments v. Lares, 802 F.Supp. 976, 981 n. 2 (S.D.N.Y.1992) (citing Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804); Mobil Oil Corp. v. Advanced Environmental Recycling Technologies, 833 F.Supp. 437, 442 (D.Del.1993) (same); Torco Oil Co. v. Innovative Thermal Corp., 730 F.Supp. 126, 135 n. 20 (N.D.Ill.1989), which is what we are dealing with in the present proceeding. Even with the bootstrapping" }, { "docid": "23459344", "title": "", "text": "Illinois long-arm statute as well as due process. Prior to September, 1989, a nonresident defendant could be sued in Illinois only if he or she (1) performed one of the acts enumerated in the Illinois long-arm statute; and (2) established minimum contacts with Illinois which satisfy due process requirements. Mors v. Williams, 791 F.Supp. 739, 741 (N.D.Ill.1992) (citation omitted). Effective September 7, 1989, Illinois amended its long-arm statute to include a new “catch-all” provision, which provides that “[a] court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States.” 735 ILCS § 5/2-209(c). This “catch-all” provision renders the first inquiry (i.e., did the defendant perform one of the enumerated acts under the long-arm statute) unnecessary because jurisdiction under the Illinois long-arm statute is now co-extensive with the limits of due process. Dehmlow v. Austin Fireworks, supra, 963 F.2d at 945; FMC Corp. v. Varonos, 892 F.2d 1308, 1311 n. 5 (7th Cir.1990). Accordingly, the Court must ascertain whether the exercise of jurisdiction over Mr. Christoph satisfies the requirements of due process. This determination requires an analysis under both the United States and Illinois Constitutions. Mors v. Williams, supra, 791 F.Supp. at 741 (citing Rollins v. Ellwood, 141 Ill.2d 244, 152 Ill.Dec. 384, 398, 565 N.E.2d 1302, 1316 (1990)); Damian Services Corp. v. PLC Services, Inc., 763 F.Supp. 369, 371 (N.D. Ill.1991) (citation omitted). C. Federal Due Process Under the Due Process Clause of the Fourteenth Amendment, a state court may exercise personal jurisdiction over a nonresident defendant only if the defendant has “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fan-play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)); Michael J. Neuman & Associates, Ltd. v. Florabelle Flowers, Inc., supra, 15 F.3d at 725. In determining the reasonableness of forcing a nonresident defendant to defend in" }, { "docid": "6189984", "title": "", "text": "and benefits of Illinois law, not to serve his personal interests, but to serve those of his employer or principal.” 152 Ill.Dec. at 400, 565 N.E.2d at 1318. It is clear that Rollins governs this dispute. Yet, the parties differ over its interpretation. Shaw and Isgrigg claim that because they were acting only on behalf of USCB, not on their own behalf, they are protected by the fiduciary shield doctrine (Dft’s Mem. at 4-7). Brujís reads Rollins more narrowly, arguing that the fiduciary shield protects only those who both acted on their employer’s or principal’s behalf and had no discretion over their actions. She claims that since Shaw and Isgrigg were principal officers of USCB they had discretion to decide whether to continue using the name United States Credit Bureau to deceive customers and that they should not be protected by the fiduciary shield (Plfs Mem. at 7-10). Fiduciary shield cases following Rollins do not conclusively settle whether a fiduciary’s exercise of discretion automatically removes him from the protection of the shield. The cases that have addressed the issue generally conclude that the shield should not apply where the employee has the power to decide what is to be done and chooses to commit the acts that subject him to long-arm jurisdiction. Renner v. Grand Trunk Western Railroad Co., 263 Ill.App.3d 547, 204 Ill.Dec. 42, 44, 641 N.E.2d 1, 3 (App.Ct.1994), appeal denied, 157 Ill.2d 521, 205 Ill.Dec. 185, 642 N.E.2d 1302 (1994); People ex rel. Morse v. E & B Coal Co., 261 Ill.App.3d 738, 199 Ill.Dec. 597, 603, 634 N.E.2d 436, 441 (App. Ct.1994); Ruca Hardware, Ltd. v. Chien, No. 94 C 3635, 1994 WL 548196, at *5 (N.D.Ill. Oct. 4, 1994); Lexecon Inc. v. Milberg Weiss Bershad Specthrie & Lerach, No. 92 C 7768, 1993 WL 179789, at *4 (N.D.Ill. May 24, 1993). Indeed, in only one case in which the discretion issue arose did a court reject the idea of an exception to the fiduciary shield for discretionary acts, and it did so only in passing. Rice v. Nova Biomedical Corp., 38 F.3d 909 (7th Cir.1994)." }, { "docid": "18149080", "title": "", "text": "for breach of fiduciary duty, which can only be brought against the fiduciary. Some jurisdictions hold that the fiduciary shield does not apply to claims such as breach of fiduciary duty. Illinois, for example, holds that the fiduciary shield does not protect an officer or director acting to “serve his personal interests.” Rollins v. Ellwood, 141 Ill.2d 244, 152 Ill.Dec. 384, 565 N.E.2d 1302, 1318 (1990). The Fifth Circuit agrees with this approach. Lewis v. Fresne, 252 F.3d 352, 359 n. 6 (5th Cir.2001) (“ ‘[T]he shield is removed if the individual’s personal interests motivate his actions----’ ” (quoting Darovec Mktg. Grp., Inc. v. Bio-Genics, Inc., 42 F.Supp.2d 810, 819 (N.D.Ill.1999))); cf. Dodson Int’l Parts, Inc. v. Altendorf, 181 F.Supp.2d 1248, 1255 (D.Kan.2001) (relying on Lewis for the idea that “[w]hen the claim alleges or necessarily involves the personal interests or motives of the individual defendant, the fiduciary shield doctrine does not apply”). And the Southern District of New York has stated, “If any suggestion of self-dealing is made by the plaintiffs’ Complaint and other documents submitted to this Court, the fiduciary shield doctrine will not be applied.” In re Union Carbide Corp. Consumer Prods. Bus. Sec. Litig., 666 F.Supp. 547, 573 (S.D.N.Y.1987). In essence, regardless of whatever else the fiduciary shield may protect, it makes little sense to apply it to claims of breach of fiduciary duty — a claim alleging, by its very nature, that the agent did not act on the principal’s behalf, but in the agent’s own interest at the principal’s expense. To conclude, whether or not Oklahoma would adopt the fiduciary shield doctrine as a general matter, we believe it would not apply it to the claims Newsome asserts against the individual defendants. The fiduciary shield doctrine therefore does not provide a basis for defendants to avoid personal jurisdiction in Oklahoma. C. Personal Jurisdiction for the Law Firm Finally, we turn to the remaining party — the law firm — against which Newsome asserts two causes of action. First, he asserts breach of fiduciary duty based on the law firm representing both Mahalo Canada and" }, { "docid": "2843197", "title": "", "text": "the principles of federal due process. While this conclusion disposes of Oberst’s motion and Glass’s claim against Oberst, the court nonetheless will address the issue of personal jurisdiction over Oberst under Illinois due process, since both parties address Illinois due process issues at length. 2. Illinois due process Under the Illinois constitution’s guarantee of due process, “[j]urisdiction is to be asserted only when it is fair, just, and reasonable to require a nonresident defendant to defend an action in Illinois, considering the quality and nature of the defendant’s acts which occur in Illinois or which affect interests located in Illinois.” Rollins, 141 Ill.2d at 275, 152 Ill.Dec. at 398, 565 N.E.2d at 1316. Based on the fairness required by Illinois due process principles, a defendant in Illinois may raise a defense to personal jurisdiction known as the fiduciary shield doctrine. • Pursuant to the fiduciary shield doctrine, a court cannot' exercise jurisdiction over a nonresident defendant who has performed acts in Illinois solely as a representative of his employer, and not for his personal benefit. Rollins, 141 Ill.2d at 276, 152 Ill.Dec. at 398-99, 565 N.E.2d at 1316-17 (citing Hurletron Whittier, Inc. v. Barda, 82 Ill.App.3d 443, 448, 37 Ill.Dec. 838, 841, 402 N.E.2d 840, 843 (1980)). In Rollins, Ellwood, a police officer and Maryland resident, entered Illinois solely in his capacity as a police officer, and arrested Rollins, a man believed wanted in Maryland. Unfortunately, Rollins was not the man wanted in Maryland, and was forced to spend several weeks in jail until the case of mistak en identity was cleared up. Rollins sued Ellwood and the city of Baltimore. Finding that Illinois courts had no jurisdiction over Ellwood, the Illinois Supreme Court stated: We find that it is not fair, just, and reasonable for the Illinois courts to ass~rt personal jurisdiction over one in Ellwood's situation. Eliwood entered into Iffinois, and while in Illinois engaged in conduct giving rise to the present cause of action, solely in his capacity as a police officer acting for the Baltirriore police department and the State of Maryland. The nature and quality" }, { "docid": "11026597", "title": "", "text": "process. See Dehmlow, 963 F.2d at 945; FMC, 892 F.2d at 1311 n. 5; Damian Services Corp. v. PLC Services, Inc., 763 F.Supp. 369, 371 (N.D.Ill.1991); Kinney v. Anchorlock Corp., 736 F.Supp. 818, 825 n. 5 (N.D.Ill.1990). Stated differently, if due process is satisfied, jurisdiction is met under Section 2-209(c) of Illinois’ long-arm statute irrespective of whether a defendant has done any of the acts set forth under Section 2 — 209(a)(1)—(14). Ill.Rev.Stat. ch. 110, paras. 2-209(a, c) (1989); Damian, 763 F.Supp. at 371; Kinney, 736 F.Supp. at 825 n. 5. This does not end our analysis. The Illinois Supreme Court in Rollins v. Ellwood, 141 Ill.2d 244, 152 Ill.Dec. 384, 565 N.E.2d 1302 (1990), recently intimated that a new two-step inquiry may be required. In deciding whether it is fair to subject a nonresident defendant to Illinois jurisdiction a court may not look solely to the Illinois long-arm statute and the federal due process clause. Rollins, 152 Ill.Dec. at 398, 565 N.E.2d at 1316. See People ex rel. Hartigan v. Kennedy, 215 Ill.App.3d 880, 159 Ill.Dec. 438, 443, 576 N.E.2d 107, 112 (1991); Aetna Casualty & Surety Co. v. Crowther, Inc., 221 Ill.App.3d 275, 163 Ill. Dec. 679, 581 N.E.2d 833 (1991). The Illinois Supreme Court unequivocally stated that the Illinois Constitution, which contains its own separate and independent guarantee of due process, must also be satisfied. Rollins, 152 Ill.Dec. at 398, 565 N.E.2d at 1316. Therefore, in analyzing defendants’ motion to dismiss, the central issue raised is whether this court’s exercise of personal jurisdiction over Elkins and Williams is constitutional so as not to offend the due process clause of the Fourteenth Amendment and the due process clause of the Illinois Constitution. A. Due Process Clause of the Fourteenth Amendment A court’s assertion of personal jurisdiction over a nonresident defendant must comport with “traditional notions of fair play and substantial justice” to satisfy the due process clause of the Fourteenth Amendment. Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). In fact, the Seventh Circuit has recently stated that the" }, { "docid": "6189980", "title": "", "text": "summons or filing a waiver of service is effective to establish jurisdiction over the person of a defendant who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located, or ... when authorized by a statute of the United States.” Shaw and Isgrigg argue that because there is no statute here authorizing special service methods, the court has jurisdiction only if an Illinois court would have jurisdiction. Illinois has a long-arm statute that grants its courts personal jurisdiction to the maximum extent permitted by the Illinois constitution and the Constitution of the United States. 735 ILCS 5/2-209. Shaw and Isgrigg are covered by § 2-209 because under both constitutions the tortious acts, they allegedly committed in Illinois— authorizing and directing the use of the misleading USCB name in violation of the FDCPA — are sufficient to confer jurisdiction. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (“minimum contacts” sufficient for federal due process); Arthur Young & Co. v. Bremer, 197 Ill.App.3d 30, 143 Ill. Dec. 736, 741, 554 N.E.2d 671, 676 (App.Ct. 1990) (§ 2-209 requires plaintiff to allege o,nly that defendant “performed an act or omission which caused an injury in Illinois, and that the act or omission was tortious in nature”); Heritage House Restaurants, Inc. v. Continental Funding Group, Inc., 906 F.2d 276, 282 (7th Cir.1990) (holding that jurisdiction in'misrepresentation 'and deceptive business practices case was appropriate under § 2-209, based on nonresident defendant’s alleged misrepresentations to an Illinois corporation about whether a deposit would be insured). However, Shaw and Is-grigg argue that the court lacks jurisdiction because Illinois’ fiduciary shield doctrine exempts them from the long-arm statute. We must decide whether the doctrine applies on these facts. The fiduciary shield doctrine was first recognized by the Illinois Supreme Court in Rollins v. Ellwood, 141 Ill.2d 244,152 Ill.Dec. 384, 565 N.E.2d 1302 (1990). Rollins arose after defendant Ellwood, a Maryland police officer, traveled to Illinois to take custody of plaintiff Sylvester Rollins and returned with him to" }, { "docid": "16742915", "title": "", "text": "be sued in Illinois only if he or she (1) performed one of the acts enumerated in the Illinois long-arm statute; and (2) established minimum contacts with Illinois which satisfy due process requirements. Mors v. Williams, 791 F.Supp. 739, 741 (N.D.Ill.1992) (citing FMC Corp. v. Varonos, 892 F.2d 1308, 1310 (7th Cir.1990)). Effective September 7, 1989, however, Illinois amended its long-arm statute to include a new “catch-all” provision, which provides that “[a] court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States.” 735 ILCS 5/2-209(c). This “catch-all” provision renders the first inquiry (i.e., did the defendant perform one of the enumerated acts under the long-arm statute) unnecessary because jurisdiction under the Illinois long-arm statute is now co-extensive with the limits of due process. Dehmlow v. Austin Fireworks, supra, 963 F.2d at 945; FMC Corp. v. Varonos, supra, 892 F.2d at 1311 n. 5; Mors v. Williams, supra, 791 F.Supp. at 741; Damian Services Corp. v. PLC Services, Inc., 763 F.Supp. 369, 371 (N.D.Ill.1991) (citations omitted). Accordingly, this Court must ascertain whether the exercise of jurisdiction over these defendants satisfies the requirements of due process. This determination requires an analysis under both the United States and Illinois Constitutions. Mors v. Williams, supra, 791 F.Supp. at 741 (citing Rollins v. Ellwood, 141 Ill.2d 244, 152 Ill.Dec. 384, 398, 565 N.E.2d 1302, 1316 (1990)); Damian Services Corp. v. PLC Services, Inc., supra, 763 F.Supp. at 371 (citation omitted). B. Federal Due Process Under the Due Process Clause of the Fourteenth Amendment, a state court may exercise personal jurisdiction over a nonresident defendant only if the defendant has “certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940)); Michael J. Neuman & Associates, Ltd. v. Florabelle Flowers, Inc., supra, 15 F.3d" }, { "docid": "13566229", "title": "", "text": "in or controlling the double-counted activity. Columbia Briargate Co. v. First Nat’l Bank in Dallas, 713 F.2d 1052, 1064-65 (4th Cir.1983) (referring to “direct personal involvement” standard); Application to Enforce Administrative Subpoenas Duces Tecum of S.E.C. v. Knowles, 87 F.3d 413, 417-19 (10th Cir.1996); Interlease Aviation Investors II (Aloha) L.L.C. v. Vanguard Airlines, 262 F.Supp.2d 898, 908-10 (N.D.Ill.2003) (stating that imputation of corporate contacts would not be permitted unless the stockholders controlled, dominated, supervised, or directed the contacts at issue); cf. Burger King Corp., 471 U.S. 462, 479 & n. 22, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). When a federal court asserts personal jurisdiction against two members of a limited liability company with only two members and a handful of employees, virtually all of the significant planning, acting, directing, and masterminding will be attributable to one member, the other, or both, making them the “primary participants.” The nonprevailing reporter and editor being sued for libel in Calder, for instance, were at least able to credibly argue that they could not control the National Enquirer’s marketing activity resulting in wide circulation in the California forum. See Calder, 465 U.S. at 789, 104 S.Ct. 1482. The members or shareholders of a company with a smaller, narrower base of ownership and control compared to the National Enquirer cannot easily argue lack of control over company conduct. Although they do not correctly identify it as such, the foreign defendants’ opposition to personal jurisdiction in this matter essentially amounts to an assertion of what is known as the fiduciary shield doctrine. This doctrine, though, is a discretionary, equitable doctrine certain states have employed to limit their jurisdictional reach under their state constitutions and long-arm statutes. E.g., Marine Midland Bank, N.A. v. Miller, 664 F.2d 899 (2nd Cir.1981) (recognizing doctrine under New York’s longarm statute); Merkel Associates v. Bellofram Corp., 437 F.Supp. 612, 618-20 (W.D.N.Y.1977) (same); Torco Oil Co. v. Innovative Thermal Corp., 730 F.Supp. 126, 135 n. 20 (N.D.Ill.1989) (same); Rollins v. Ellwood, 141 Ill.2d 244, 152 Ill.Dec. 384, 565 N.E.2d 1302, 1316-18 (1990) (recognizing doctrine “under Illinois’ due process clause and the tenets" }, { "docid": "15207543", "title": "", "text": "978 (N.D.Ill.1995); see also Ruca Hardware, Ltd. v. Chien, 1994 WL 548196 at 7, 1994 U.S.Dist. LEXIS 14064 at *12 (N.D.Ill.1994). In establishing the fiduciary shield doctrine in Rollins, the Illinois Supreme Court suggested that the element of compulsion involved in an employee’s contacts with Illinois made it unfair to assert jurisdiction over him later. See Rollins, 141 Ill.2d at 279-80, 152 Ill.Dec. 384, 565 N.E.2d 1302. Rollins involved a wrongful arrest suit brought against a Baltimore, Maryland officer who effectuated an arrest in Illinois. Stressing the absence of discretion in that case, the Supreme Court stated: - Because [the police officer’s] conduct in Illinois was a product of, and was motivated by, his employment situation and not his personal interests, we conclude that it would be unfair to use this conduct to assert personal jurisdiction over him as an individual.... In practical terms, an employee, especially one in [the police officer’s] position, has little or no alternative besides unemployment when ordered to enter another State to carey out the wishes of his employer. Id. Similar to Rollins, the complaint and Reddick’s affidavits establish that Ralph Bistany compelled Reddick to tenninate plaintiff. Plaintiff alleges nothing to suggest that Reddick had any discretion whether or not to execute Bistany’s directive. For the foregoing reasons, the court concludes that the fiduciary shield doctrine bars the court’s jurisdiction over Reddick. Accordingly, Reddick is dismissed as a defendant in this action. CONCLUSION SABIS’s motion to dismiss counts V(C), V(E), VI(C) and VI(E) is granted. SA-BIS’s motion to dismiss count V(B) is denied. . The individual SABIS defendants’ motion to dismiss counts V(B), V(C), V(E), VI(F), VI(C), VI(E) and VI(F) is granted. The Foundation’s motion to dismiss counts V(A), V(B), V(C), V(E), V(F), VI(C), VI(E) and VI(F) is granted. The individual Foundation defendants’ motion to dismiss counts V(C), V(E), VI(C), VI(E) and VI(F) is granted. The individual Foundation defendants’ motion to dismiss count V(B) is granted with respect to defendant Murphy and is denied with respect to defendant Livney. Defendant Schulz’ motion to dismiss for lack of personal jurisdiction is denied as moot. Defendant Reddick’s" }, { "docid": "13714869", "title": "", "text": "solely on behalf of his employer or other principal.” Rice v. Nova Biomedical Corp., 38 F.3d 909, 912 (7th Cir.1994), cert. denied, 514 U.S. 1111, 115 S.Ct. 1964, 131 L.Ed.2d 855 (1995). Accord Rollins v. Ellwood, 141 Ill.2d 244, 152 Ill.Dec. 384, 565 N.E.2d 1302, 1313-1318 (1990). The doctrine serves to prevent the “perceived unfairness” of forcing an individual to defend a lawsuit brought against him personally in a forum in which he performed the only relevant contacts for the benefit of his employer and not for his own benefit. Vandeveld, 877 F.Supp. at 1163; Brujis v. Shaw, 876 F.Supp. 975, 977 (N.D.Ill.1995). Nonetheless, the doctrine will not apply if the defendant is the alter ego of the entity for which he is a fiduciary. Brujis, 876 F.Supp. at 978-979. The fiduciary shield doctrine is an equitable doctrine and is, therefore, applied with discretion. Burnhope v. Nat’l Mortgage Equity Corp., 208 Ill.App.3d 426, 153 Ill.Dec. 398, 567 N.E.2d 356, 363-364 (1990). The amended complaint does not allege that Whelan’s contacts with Illinois were performed in a capacity other than as an officer of Tag Bags, Inc. Moreover, the amended complaint does not allege that Whelan is the alter ego of Tag Bags, Inc. or that Tag Bags, Inc. is a sham corporation. See Gaither Tool Co., Inc. v. Tire Serv. Equipment MFG, Inc., 96 C 8094, 1997 WL 403583, * 4. Furthermore, Clipp has not provided the court with any equitable reasons for why this Court should disregard the corporate entity. Because Clipp has not alleged any other contacts between Whelan and Illinois, defendants’ motion to dismiss Whelan in his individual capacity is granted. This Court, however, does have personal jurisdiction over Tag, Bags, Inc. In Indianapolis Colts, 34 F.3d at 411-412, the Seventh Circuit held an Indiana District Court had jurisdiction over a Maryland defendant operating a football team in Maryland. The Court found that the Maryland defendant’s alleged conduct, if proved, was a tort against the Indiana plaintiffs’ trademark and that the injury was felt in Indiana Likewise, the alleged tortious acts of a Minnesota defendant, Tag Bags," }, { "docid": "6189987", "title": "", "text": "(1993); Household Commercial Financial Services, Inc. v. Trump, Nos. 92 C 6920 and 92 C 5010, 1993 WL 389386 (N.D.Ill. Sept. 30, 1993); Modem Aids, Inc. v. Lil’ Drug Store Products, Inc., No. 93 C 1714, 1993 WL 239054 (N.D.Ill. June 25, 1993); Ace Novelty Co. v. Vijuk Equipment, Inc., No. 90 C 3116, 1991 WL 150191 (N.D.Ill. July 31, 1991). Thus it is not clear under Illinois law whether discretion is an essential factor to be considered in determining whether the fiduciary shield should be invoked. It is our task to ascertain, as best we can, what the Illinois Supreme Court would do if it were deciding this case. Todd v. Societe Bic, S.A., 21 F.3d 1402, 1405 (7th Cir.), cert. denied, — U.S.-, 115 S.Ct. 359, 130 L.Ed.2d 312 (1994); Heller International Corp. v. Sharp, 974 F.2d 850, 858 (7th Cir.1992). We think that court would consider the extent of the nonresident defendant’s discretion an important factor, though not a determinative one, in deciding whether an Illinois court’s jurisdiction over him was proper. As the courts that have emphasized discretion have pointed out, the Rollins court was impressed by the compulsory nature of Officer Ellwood’s actions in Illinois: Also, we are not persuaded by the argument ... that asserting personal, jurisdiction over an employee who acted in the scope of his employment is justified because the employee is serving his own financial interests when he performs the tasks imposed upon him by his employer. In practical terms, an employee, especially one in Ellwood’s position, has little or no alternative besides unemployment when ordered to enter another State to carry out the wishes of his employer. Rollins, 152 Ill.Dec. at 400, 565 N.E.2d at 1318. Accordingly, we think the Renner and E.& B Coal courts were correct in looking beyond the personal eapacity/representative capacity distinction, which, although critical in Rollins, was not the only aspect of the decision. Still, Rollins did not turn on the issue of discretion; the statement quoted above was only dictum. Rather, Rollins’ underlying holding was that “^jurisdiction is to be asserted only when it" } ]

[ { "docid": "23567933", "title": "", "text": "received 7% of the gross proceeds (or some other fixed amount) as compensation for their services, and the Issuer received the remaining capital. See MDCM Holdings, Inc. v. Credit Suisse First Boston Corp., 216 F.Supp.2d 251, 253 (S.D.N.Y.2002). After the offering, those who purchased on the IPO could profit by selling their stock in the aftermarket, ie., on a stock exchange such as the Nasdaq. Indeed, from 1998 to 2000, customers who bought IPO stock often made large profits as the price of the stock dramatically surged in the aftermarket. Plaintiffs who bought stock in the aftermarket for 309 of these high-technology and Internet-related stocks allege that the Allocating Underwriters required their customers to enter into agreements to buy additional shares of the Issuer in the aftermarket as a condition of receiving the right to purchase the IPO stock. In some instances, these customers were also required to make those purchases at predetermined escalating prices. As a result of these “Tie-in Agreements,” the Allocating Underwriters created an artificial demand for the company’s stock and caused the price of the stock to rise. In addition, the Underwriters used this scheme to enrich themselves by requiring customers to pay them a portion of the profits they made by selling the IPO shares in the aftermarket. Spurred by newspaper and government investigations into the IPO allocation practices of various investment banks, Plaintiffs filed over 1,000 Complaints in this district from January 11 to December 6, 2001, each alleging that the Underwriters perpetrated this scheme in connection with 309 IPOs. See Makaron v. VA Linux Sys., Inc., No. 01 Civ. 242 (first action filed January 11, 2001); Genduso v. Internap Network Servs. Corp., No. 01 Civ. 11247 (last action filed December 6, 2001). Plaintiffs are suing three groups of defendants in each IPO case; the Underwriters of the IPO, the company that issued the stock (“Issuer” or “Issuer Defendant”), and the company’s officers (“Individual Officers” or “Individual Defendants”). In total, Plaintiffs are suing fifty-five Underwriters, 309 Issuers, and thousands of Individual Defendants. In an effort to coordinate the lawsuits and avoid taxing the limited" } ]

[ { "docid": "22140692", "title": "", "text": "allocations of shares at the offer price on agreements to purchase shares in the aftermarket (the “Tie-in Agreements”). Second, they allege that the underwriters also required customers who received allocations of shares at the offer price to pay three forms of “Undisclosed Compensation” to the underwriters: (1) paying inflated brokerage commissions, (2) paying commissions on churned transactions in unrelated securities, and (3) purchasing other, unwanted securities from the underwriters. Third, the Plaintiffs allege that the underwriters used their analysts in several improper ways: (1) setting unrealistic price targets, (2) promising a “hot” analyst to an issuer in exchange for underwriting the IPO, (3) tying analyst compensation to performance of the investment banking division, (4) allowing analysts to own shares of stocks they were touting, and (5) failing to disclose these conflicts of interest. The Master Allegations also allege that the underwriters facilitated receipt of quick profits by insiders of the issuer and that the issuers (also Defendants) “participated in and benefitted from” the underwriters’ misconduct. The Master Allegations detail the specific activities of each underwriter. These allegations include reports of the tie-in arrangements, undisclosed compensation, and analyst manipulation. The issuers in the six focus cases involved in the pending appeal are Corvis Corp., Engage Technologies, Inc., Fire-Pond, Inc., iXL Enterprises, Inc., Sycamore Networks, Inc., and VA Software Corp. All six complaints include the following six claims: * claims under section 11 of the Securities Act, 15 U.S.C. § 77k, against the issuer, individual officers, and underwriters for untrue material statements of fact or material omissions from the registration statement, specifically the tie-in agreements and the undisclosed compensation; * claims under section 15 of the Securities Act, 15 U.S.C. § 77o, against individual officers for derivative liability for an issuer’s violation of section 11; * claims under section 10(b) of the Securities and Exchange Act of 1934 (“the Exchange Act”), 15 U.S.C. § 78j, and Rule 10b-5, 17 C.F.R. § 240.10b-5, against the underwriters for deceptive and manipulative practices in connection with an IPO, specifically the tie-in agreements and the undisclosed compensation; * claims under section 10(b) of the Exchange Act" }, { "docid": "23568064", "title": "", "text": "no ambiguity as to who had “common knowledge” of the alleged scheme: the Underwriters and their customers. See id. This allegation is entirely consistent with the Plaintiffs’ allegations that in 309 IPOs, Underwriters repeatedly required their customers who received IPO stock (e.g., T. Rowe Price’s Developing Technology Fund, medium, and large institutional investors) to enter into Tie-in Agreements and pay Undisclosed Compensation. At the same time, there is no concession that investors in the aftermarket — ie., the Plaintiffs in these cases — knew about this scheme. In arguing that the Plaintiffs have pled themselves out of court, the Underwriters point to the allegation that institutional and retail investors knew about the scheme, and thus all retail investors must have known about the scheme. See 11/1/02 Tr. at 31 (David W. Ichel stating: “It says also retail investors.”). However, this interpretation reads the words “retail investor” out of context. The sentence to which the Underwriters refer states: “Institutional and retail investors, who have received allocations in initial public offerings from various firms ...MA ¶30 (emphasis added). While it is true that Plaintiffs have pled that at least some retail investors knew about the scheme, this group is plainly limited to those investors who received stock from the Underwriters in the IPO. The Underwriters’ argument would only have merit if the Complaints had alleged that the scheme was common knowledge among all investors. But not only is there no such allegation, such an allegation would not be reasonable given that investors who buy stock in the initial allocation generally have more knowledge of the IPO process than investors who purchase stock in the aftermarket. Indeed, the SEC has long defended the importance of securities law on the ground that investors in the aftermarket have a much lower level of sophistication and knowledge about the IPO process than initial purchasers. See, e.g., SEC Special Study at 556 (arguing that disclosure provisions of the Securities Act are particularly important because “persons who bought in the after-market often [are] less sophisticated [than customers who received original allotments] and more susceptible to the allure of" }, { "docid": "23568098", "title": "", "text": "is significant that these Underwriters were listed on the registration statements as underwriters of the IPO, but then allegedly received no allocation. This circumstance is so unusual that it supports a strong inference that the Non-Allocating Underwriters either knew about, or acted with reckless disregard towards, the entire scheme of the Allocating Underwriters when signing the registration statement. Second, these Complaints cannot and need not be read in isolation. There are 309 Complaints against the fifty-five Underwriters in which Plaintiffs describe in painstaking detail the relationships between the various investment banks. See MA ¶¶ 66-85. Even if an Underwriter took no role in one allocation, it took an active role in others — and in those IPOs it is accused of committing illegal acts. For example, during the class period J.P. Morgan was either a Lead or Co-Lead Under writer in twelve other IPOs in which it is alleged to have required Tie-In Agreements of its customers and taken Undisclosed Compensation. The allegations that J.P. Morgan engaged in the same scheme in these IPOs raise a strong inference that in the Cacheflow IPO J.P. Morgan knew that the misstatements and omissions in the registration statements were misleading; or, at least, acted with reckless disregard towards their truth. Similarly, in the Master Allegations, Plaintiffs allege that at least one customer was required or induced by J.P. Morgan to buy stock in the aftermarket at prices substantially above the IPO price in six IPOs. These allegations also raise a strong inference that in the Cacheflow IPO J.P. Morgan knew that the misstatements and omissions in the registration statements were false or misleading because the Allocating Underwriters would and did require Tie-in Agreements and Undisclosed Compensation. Paragraph (b)(2) has thus been satisfied. c. Individual Defendants On November 13, 2002, I directed Plaintiffs to submit charts summarizing their allegations of scienter as to the Individual Defendants and Issuers in each of the 309 complaints. See Order, In re Initial Public Offering Sec. Litig., No. 21 MC 92 (S.D.N.Y. Nov. 13, 2002) (“11/13/02 Order”). As to the Individual Defendants, Plaintiffs were directed to identify (1)" }, { "docid": "23567934", "title": "", "text": "the price of the stock to rise. In addition, the Underwriters used this scheme to enrich themselves by requiring customers to pay them a portion of the profits they made by selling the IPO shares in the aftermarket. Spurred by newspaper and government investigations into the IPO allocation practices of various investment banks, Plaintiffs filed over 1,000 Complaints in this district from January 11 to December 6, 2001, each alleging that the Underwriters perpetrated this scheme in connection with 309 IPOs. See Makaron v. VA Linux Sys., Inc., No. 01 Civ. 242 (first action filed January 11, 2001); Genduso v. Internap Network Servs. Corp., No. 01 Civ. 11247 (last action filed December 6, 2001). Plaintiffs are suing three groups of defendants in each IPO case; the Underwriters of the IPO, the company that issued the stock (“Issuer” or “Issuer Defendant”), and the company’s officers (“Individual Officers” or “Individual Defendants”). In total, Plaintiffs are suing fifty-five Underwriters, 309 Issuers, and thousands of Individual Defendants. In an effort to coordinate the lawsuits and avoid taxing the limited judicial resources of this district, the Assignment Committee of the Southern District of New York directed that all of the actions be transferred to this Court for “coordination and decision of pretrial motions, discovery and related matters other than trial.” Order, In re Initial Public Offering Sec. Litig., 21 MC 92 (Aug. 9, 2001). This Court subsequently consolidated the lawsuits by Issuer {e.g., In re Cacheflow Securities Litigation), thereby resulting in 309 consolidated cases that are being coordi nated in the above-captioned litigation. The Underwriters, Issuers, and Individual Defendants now move to dismiss these actions in their entirety. In broad terms, the Defendants put forward two grounds for dismissal. First, they argue that each of the 309 Complaints fails to comply with the pleading requirements of the Federal Rules of Civil Procedure and the Private Securities Litigation Reform Act of 1995 (“PSLRA”). Second, they contend that even if the allegations are properly pled and assumed to be true, the Complaints must be dismissed for “failure to state a claim upon which relief can be granted.”" }, { "docid": "23568063", "title": "", "text": "sometimes expressed by the Underwriter Defendants and other times implied, but nevertheless invariably communicated between those with the power to make allocations of shares in initial public offerings (the underwriters).... 32. For example, “Michael Sola, portfolio manager for T. Rowe Price’s Developing Technology Fund, explained to USA Today [May 25, 2001] how the game was played. He said that ‘people know that the higher they say they are willing to buy the stock (in the after market), the bigger the allocation [of IPO shares] they are going to get.”’ [Testimony of David W. Tice, David W. Tice & Associates, Inc., before the House Committee on Financial Services, Capital Markets, Insurance and Government Sponsored Enterprises Subcommittee, June 14, 2001]. 33. Even institutional investors generally considered to be medium or large in terms of amount of assets under management, were told by Underwriter Defendants, in words or substance, that in order to receive IPO allocations, they had to commit to buying additional shares in the aftermarket. MA ¶¶ 30-33 (emphasis added). When read in context, there is no ambiguity as to who had “common knowledge” of the alleged scheme: the Underwriters and their customers. See id. This allegation is entirely consistent with the Plaintiffs’ allegations that in 309 IPOs, Underwriters repeatedly required their customers who received IPO stock (e.g., T. Rowe Price’s Developing Technology Fund, medium, and large institutional investors) to enter into Tie-in Agreements and pay Undisclosed Compensation. At the same time, there is no concession that investors in the aftermarket — ie., the Plaintiffs in these cases — knew about this scheme. In arguing that the Plaintiffs have pled themselves out of court, the Underwriters point to the allegation that institutional and retail investors knew about the scheme, and thus all retail investors must have known about the scheme. See 11/1/02 Tr. at 31 (David W. Ichel stating: “It says also retail investors.”). However, this interpretation reads the words “retail investor” out of context. The sentence to which the Underwriters refer states: “Institutional and retail investors, who have received allocations in initial public offerings from various firms ...MA ¶30 (emphasis" }, { "docid": "22140691", "title": "", "text": "to whether the requirement is met, although such a circumstance might appropriately limit the scope of the court’s inquiry at the class certification stage, and (4) that the cases pending on this appeal may not be certified as class actions. We therefore vacate the class certifications and remand for further proceedings. Background Throughout 2001, thousands of investors filed class actions against 55 underwriters, 310 issuers, and hundreds of individual officers of the issuing companies, alleging that the Defendants had engaged in a scheme to defraud the investing public in violation of federal securities laws. The Assignment Committee of the Southern District of New York transferred all these suits to Judge Scheindlin for pretrial coordination. Judge Scheindlin consolidated the thousands of cases by issuer, resulting in 310 consolidated actions. The complaints, as amended, consist of a set of “Master Allegations” applicable to all 310 consolidated actions and a “Class Action Complaint” specific to each of the 310 issuers. The Master Allegations describe three fraudulent devices used by the underwriters. First, they allege that the underwriters conditioned allocations of shares at the offer price on agreements to purchase shares in the aftermarket (the “Tie-in Agreements”). Second, they allege that the underwriters also required customers who received allocations of shares at the offer price to pay three forms of “Undisclosed Compensation” to the underwriters: (1) paying inflated brokerage commissions, (2) paying commissions on churned transactions in unrelated securities, and (3) purchasing other, unwanted securities from the underwriters. Third, the Plaintiffs allege that the underwriters used their analysts in several improper ways: (1) setting unrealistic price targets, (2) promising a “hot” analyst to an issuer in exchange for underwriting the IPO, (3) tying analyst compensation to performance of the investment banking division, (4) allowing analysts to own shares of stocks they were touting, and (5) failing to disclose these conflicts of interest. The Master Allegations also allege that the underwriters facilitated receipt of quick profits by insiders of the issuer and that the issuers (also Defendants) “participated in and benefitted from” the underwriters’ misconduct. The Master Allegations detail the specific activities of each underwriter." }, { "docid": "4500768", "title": "", "text": "quantities, at what prices, and for how long each is likely to hold purchased shares before selling them to others. On the basis of this kind of information, the members of the underwriting syndicate work out final arrangements with the issuing firm, fixing the price per share and specifying the number of shares for which the underwriters will be jointly responsible. As we have said, after buying the shares at a discounted price, the syndicate resells the shares to investors at the fixed price, in effect earning its commission in the process. B In January 2002, respondents, a group of 60 investors, filed two antitrust class-action lawsuits against petitioners, 10 leading investment banks. They sought relief under § 1 of the Sherman Act, ch. 647, 26 Stat. 209, as amended, 15 U. S. C. § 1; § 2(c) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1527, 15 U. S. C. § 13(c); and state antitrust laws. App. 1,14. The investors stated that between March 1997 and December 2000 the banks had acted as underwriters, forming syndicates that helped execute the IPOs of several hundred technology-related companies. Id., at 22. Respondents’ antitrust complaints allege that the underwriters “abused the ... practice of combining into underwriting syndicates” by agreeing among themselves to impose harmful conditions upon potential investors — conditions that the investors apparently were willing to accept in order to obtain an allocation of new shares that were in high demand. Id., at 12. These conditions, according to respondents, consist of a.requirement that the investors pay “additional anticompetitive charges” over and above the agreed-upon IPO share price plus underwriting commission. In particular, these addi tional charges took the form of (1) investor promises “to place bids ... in the aftermarket at prices above the IPO price” (i e., “laddering” agreements); (2) investor “commitments to purchase other, less attractive securities” (i e., “tying” arrangements); and (3) investor payment of “non-competitively determined” (i. e., excessive) “commissions,” including the “purchas[e] of an issuer’s shares in follow-up or ‘secondary’ public offerings (for which the underwriters would earn" }, { "docid": "23568092", "title": "", "text": "proffered by Plaintiffs. Because there is no real doubt in these cases that Plaintiffs have ample grounds on which to base their allegations, there is no danger that the allegations here are “unwarranted” — even if they ultimately turn out to be untrue. To ask Plaintiffs to show more than they have would be pointless, and to ask the Court to cross-reference every paragraph of every complaint against particular media reports, articles, letters, and other sources would be a waste of this Court’s limited resources. Accordingly, Plaintiffs have satisfied the third requirement of paragraph (b)(1). 2. The Material Misstatement Claims Satisfy Paragraph (b)(2) of the PSLRA — Scienter Paragraph (b)(2) provides, “In any private action ... in which the plaintiff may recover money damages only on proof that the defendant acted with a particular state of mind, the complaint shall ... state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2) (emphasis added). In most of the Complaints, Plaintiffs have brought Rule 10b-5(b) claims for material misstatements and omissions against all Defendants: Allocating Underwriters, Non-Allocating Underwriters, Individual Officers, and Issuers. Plaintiffs allege that each of these Defendants made the seven misstatements and omissions when signing the registration statement. Plaintiffs have satisfied the requirements of paragraph (b)(2) with respect to these alleged misstatements and omissions for each Defendant. a. Allocating Underwriters Plaintiffs have alleged that the Allocating Underwriters engaged in a scheme that could have only happened intentionally, and which they knew must be disclosed to the investing public: “the Allocating Underwriter Defendants created artificial demand for Cacheflow stock by conditioning share allocations in the IPO upon the requirement that customers agree to purchase shares of Cacheflow in the aftermarket and, in some instances, to make those purchases at pre-arranged, escalating prices (‘Tie-in Agreements’).” Cacheflow Compl. ¶ 3. Under this scheme, the Allocating Underwriters profited by “requiring] their customers to repay a material portion of profits obtained from selling IPO share allocations in the aftermarket through one or more of the following types of transactions: (a) paying" }, { "docid": "21680654", "title": "", "text": "realized.” 15 U. S. C. § 78p(b). In 2007, respondent Vanessa Simmonds filed 55 nearly identical actions under § 16(b) against financial institutions that had underwritten various initial public offerings (IPOs) in the late 1990⅛ and 2000, including these petitioners. In a representative complaint, she alleged that the underwriters and the issuers’ insiders employed various mechanisms to inflate the aftermarket price of the stock to a level above the IPO price, allowing them to profit from the aftermarket sale. App. 59. She further alleged that, as a group, the underwriters and the insiders owned in excess of 10% of the outstanding stock during the relevant time period, which subjected them to both disgorgement of profits under § 16(b) and the reporting requirements of § 16(a). Id., at 61. See 15 U. S. C. § 78m(d)(3); 17 CFR §§ 240.13d-5(b)(1) and 240.16a-1(a)(1) (2011). The latter requires insiders to disclose any changes to their ownership interests on a document known as a Form 4, specified in the Securities and Exchange Commission regulations. 15 U. S. C. § 78p(a)(2)(C); 17 CFR §240.16a-3(a). Simmonds alleged that the underwriters failed to comply with that requirement, thereby tolling § 16(b)’s 2-year time period. App. 62. Simmonds’ lawsuits were consolidated for pretrial purposes, and the United States District Court for the Western District of Washington dismissed all of her complaints. In re: Section 16(b) Litigation, 602 F. Supp. 2d 1202 (2009). As relevant here, the court granted petitioners’ motion to dismiss 24 complaints on the ground that § 16(b)’s 2-year time period had expired long before Simmonds filed the suits. The United States Court of Appeals for the Ninth Circuit reversed in relevant part. 638 F. 3d 1072 (2011). Citing its decision in Whittaker v. Whittaker Corp., 639 F. 2d 516 (1981), the court held that §16(b)’s limitations period is “tolled until the insider discloses his transactions in a Section 16(a) filing, regardless of whether the plaintiff knew or\" should have known of the conduct at issue.” 638 F. 3d, at 1095. Judge Milan Smith, Jr., the author of the panel opinion, also specially concurred, expressing his" }, { "docid": "23567932", "title": "", "text": "The investment banks profited by receiving kickbacks from the investors who received the IPO allocations. To hide the scheme from the investing public, the investment banks, companies, and officers violated the securities laws by making misleading statements in offering documents and by manipulating the market. Thousands of ordinary investors, who are. Plaintiffs in these cases, allege that the value of their holdings plummeted as a result of this unlawful conduct. I. INTRODUCTION From January 1998 to December 2000, over 460 high technology and Internet-related companies raised capital by selling ownership of their company to the public. Prior to going public, each company hired a group of investment banks to underwrite their IPO. Some, but not all, of the Underwriters allocated the IPO stock for distribution to initial purchasers (“Allocating Underwriters”). On the day of the IPO, the Allocating Underwriters sold the stock directly to those customers, usually institutional investors. The price of the stock was predetermined and set forth in a registration statement filed with the Securities and Exchange Commission (“SEC”). In general, the Underwriters received 7% of the gross proceeds (or some other fixed amount) as compensation for their services, and the Issuer received the remaining capital. See MDCM Holdings, Inc. v. Credit Suisse First Boston Corp., 216 F.Supp.2d 251, 253 (S.D.N.Y.2002). After the offering, those who purchased on the IPO could profit by selling their stock in the aftermarket, ie., on a stock exchange such as the Nasdaq. Indeed, from 1998 to 2000, customers who bought IPO stock often made large profits as the price of the stock dramatically surged in the aftermarket. Plaintiffs who bought stock in the aftermarket for 309 of these high-technology and Internet-related stocks allege that the Allocating Underwriters required their customers to enter into agreements to buy additional shares of the Issuer in the aftermarket as a condition of receiving the right to purchase the IPO stock. In some instances, these customers were also required to make those purchases at predetermined escalating prices. As a result of these “Tie-in Agreements,” the Allocating Underwriters created an artificial demand for the company’s stock and caused" }, { "docid": "4500769", "title": "", "text": "2000 the banks had acted as underwriters, forming syndicates that helped execute the IPOs of several hundred technology-related companies. Id., at 22. Respondents’ antitrust complaints allege that the underwriters “abused the ... practice of combining into underwriting syndicates” by agreeing among themselves to impose harmful conditions upon potential investors — conditions that the investors apparently were willing to accept in order to obtain an allocation of new shares that were in high demand. Id., at 12. These conditions, according to respondents, consist of a.requirement that the investors pay “additional anticompetitive charges” over and above the agreed-upon IPO share price plus underwriting commission. In particular, these addi tional charges took the form of (1) investor promises “to place bids ... in the aftermarket at prices above the IPO price” (i e., “laddering” agreements); (2) investor “commitments to purchase other, less attractive securities” (i e., “tying” arrangements); and (3) investor payment of “non-competitively determined” (i. e., excessive) “commissions,” including the “purchas[e] of an issuer’s shares in follow-up or ‘secondary’ public offerings (for which the underwriters would earn underwriting discounts).” Id., at 12-13. The complaint added that the underwriters’ agreement to engage in some or all of these practices artificially inflated the share prices of the securities in question. Id., at 32. The underwriters moved to dismiss the investors’ complaints on the ground that federal securities law impliedly precludes application of antitrust laws to the conduct in question. (Ihe antitrust laws at issue include the commercial bribery provisions of the Robinson-Patman Act.) The District Court agreed with petitioners and dismissed the complaints against them. See In re Initial Public Offering Antitrust Litigation, 287 F. Supp. 2d 497, 524-525 (SDNY 2003) (IPO Antitrust). The Court of Appeals for the Second Circuit reversed, however, and reinstated the complaints. 426 F. 3d 130, 170, 172 (2005). We granted the underwriters’ petition for certiorari. And we now reverse the judgment of the Court of Appeals. II A Sometimes regulatory statutes explicitly state whether they preclude application of the antitrust laws. Compare, e. g., Webb-Pomerene Act, 15 U. S. C. § 62 (expressly providing antitrust immunity), with §" }, { "docid": "23567972", "title": "", "text": "to rise in the weeks following the IPO. See id. ¶ 32. Indeed, the stock “hit a high of $182 1/6 per share on December 9,1999, just prior to the end of the quiet period.” Id. At some point after the offering, “Plaintiffs Val Kay, Greg Frick, Eric Egelman and Kenneth L. Schmid ... purchased or otherwise acquired shares of Cacheflow common stock traceable to the IPO.” Id. ¶ 12. Plaintiffs allege that this remarkable price increase in Cacheflow’s stock “was not the result of normal market forces.” Id. ¶ 31. Rather, “the Allocating Underwriter Defendants created artificial demand for Cacheflow stock by conditioning share allocations in the IPO upon the requirement that customers agree to purchase shares of Cacheflow in the aftermarket and, in some instances, to make those purchases at pre-arranged, escalating prices (“Tie-in Agreements”).” Id. ¶ 3. “As part and parcel of this scheme ... certain of the underwriters ... also improperly utilized their analysts, who, unbeknownst to investors, were compromised by conflicts of interest, [to] artificially inflate or maintain the price of Cacheflow stock by issuing favorable recommendations in analyst reports.” Id. ¶ 7. Under this scheme, Caeheflow’s Underwriters profited by “requiring] their customers to repay a material portion of profits obtained from selling IPO share allocations in the aftermarket through one or more of the following types of transactions:” (a) paying inflated brokerage commissions; (b) entering into transactions in otherwise unrelated securities for the primary purpose of generating commissions; and/or (c) purchasing equity offerings underwritten by these IPO Underwriter Defendants, including, but not limited to, secondary (or add-on) offerings that would not be purchased but for the unlawful scheme alleged herein. Id. ¶ 4. Plaintiffs collectively refer to these payments as “Undisclosed Compensation.” Id. Plaintiffs also contend that NeSmith, Malcolm and Johnson “knew of or recklessly disregarded the conduct complained of herein through their participation in the ‘Road Show1 process by which underwriters generate interest in public offerings.” Id. ¶ 8. Moreover, these officers benefitted from the Tie-in Agreements “as a result of their personal holdings of the Issuer’s stock.” Id. 2. The Registration Statement’s" }, { "docid": "23567970", "title": "", "text": "308 of the 309 consolidated cases. The Complaints detail the allegations about each Issuer’s offering and set forth the various claims against the Underwriters, the Issuer and its officers. In addition, Plaintiffs have filed a document entitled “Master Allegations” that contains the allegations that are shared by all of the Complaints. The individual Complaints incorporate the Master Allegations by reference. A. Individual Complaints As a randomly-chosen example of the individual Complaints, I shall describe in some detail the 34-page Consolidated Amended Complaint in In re Cacheflow, Inc. Sec. Litig., 01 Civ. 5143 (filed April 24, 2002) (“Cacheflow Compl.”). 1. Factual Allegations and Allegations of Market Manipulation In 1999, Cacheflow, Inc., was a Sunnyvale, California-based company that produced appliances designed to speed up content delivery over the Internet. See Cacheflow Compl. ¶ 17. At the time the company decided to go public, Brian NeS-mith was the company’s President and Chief Executive Officer, Michael Malcolm was Chairman of the Board of Directors, and Michael Johnson was Chief Financial Officer, Vice President and Secretary. See id. ¶¶ 18-20. Each of these individuals signed a registration statement and prospectus that was submitted to the SEC (collectively referred to as the “registration statement”). See id. On November 18, 1999, Cacheflow’s registration statement was approved by the SEC. See id. ¶ 5. The next day, an underwriting syndicate distributed 5,000,000 shares of Cacheflow at a price of $24.00 per share. See id. ¶ 30. The underwriting syndicate consisted of the following investment banks: POSITION UNDERWRITER LEAD MANAGER Morgan Stanley CO-MANAGER CSFB Dain Rauscher SYNDICATE MEMBERS Robertson Stephens (as successor-in-interest to Banc Boston) BaneBoston Salomon J.P. Morgan (as successor-in-interest to H & Q) H&Q Id. ¶ 14. All of the Underwriters were allocated Cacheflow’s initial stock except for J.P. Morgan (H & Q). See id. ¶¶ 14-15. “On the day of the IPO, the price of Cacheflow stock shot up dramatically, trading as high as $139.25 per share, or more than 480% above the IPO price on substantial volume.” Id. ¶ 31. Trading on the Nasdaq .under the ticker symbol “CFLO”, the price of Cacheflow’s stock continued" }, { "docid": "23567987", "title": "", "text": "escalate as soon as the shares were publicly issued. 17. Not content with record underwriting fees obtained in connection with new offerings, the Underwriter Defendants sought, as part of their manipulative scheme, to further enrich themselves by improperly sharing in the profits earned by their customers in connection with the purchase and sale of IPO securities. The Underwriter Defendants kept track of their customers’ actual or imputed profits from the allocation of shares in the IPOs and then demanded that the customers share a material portion of the profits obtained from the sale of those allocated IPO shares through one or more of the following types of transactions: (a) paying inflated brokerage commissions; (b) entering into transactions in otherwise unrelated securities for the primary purpose of generating commissions; and/or (c) purchasing equity offerings underwritten by the Underwriter Defendants, including, but not limited to, secondary (or add-on) offerings that would not be purchased but for the Underwriter Defendants’ unlawful scheme (Transactions “(a)” through “(c)” above will be, at varying times, collectively referred to hereinafter as “Undisclosed Compensation”). MA ¶¶ 14-17. “For example,” according to paragraph 34, “customers who received allocations of IPO shares in the following listed IPOs fulfilled their commitments to purchase shares in the aftermarket pursuant to Tie-in Agreements, netting the Underwriter Defendants and other underwriters of the referenced offerings substantial additional trading revenue and commissions and substantially and artificially increasing the demand for the issuer’s shares[.]” Id. ¶ 34. The statement made in the Master Allegations with respect to Cacheflow’s IPO is representative of the allegations repeatedly made in paragraph 34: One customer, in order to obtain shares of the Cacheflow IPO from Morgan Stanley, was required or induced to and did purchase from Morgan Stanley in the aftermarket, at prices substantially above the IPO price, thousands of additional Cacheflow shares. Id. ¶ 34, at 16. While paragraph 34 makes similar allegation with respect to almost every IPO— from Aclara Biosciences to Z-Tel Technologies — and fills over 71 pages of the Master Allegations, see id. ¶ 84 at 8-80, these allegations are not duplicative. The allegations in" }, { "docid": "23567988", "title": "", "text": "Compensation”). MA ¶¶ 14-17. “For example,” according to paragraph 34, “customers who received allocations of IPO shares in the following listed IPOs fulfilled their commitments to purchase shares in the aftermarket pursuant to Tie-in Agreements, netting the Underwriter Defendants and other underwriters of the referenced offerings substantial additional trading revenue and commissions and substantially and artificially increasing the demand for the issuer’s shares[.]” Id. ¶ 34. The statement made in the Master Allegations with respect to Cacheflow’s IPO is representative of the allegations repeatedly made in paragraph 34: One customer, in order to obtain shares of the Cacheflow IPO from Morgan Stanley, was required or induced to and did purchase from Morgan Stanley in the aftermarket, at prices substantially above the IPO price, thousands of additional Cacheflow shares. Id. ¶ 34, at 16. While paragraph 34 makes similar allegation with respect to almost every IPO— from Aclara Biosciences to Z-Tel Technologies — and fills over 71 pages of the Master Allegations, see id. ¶ 84 at 8-80, these allegations are not duplicative. The allegations in paragraph 34 differ in three significant ways. First, each allegation varies with respect to the Underwriter from whom that particular unnamed customer bought the IPO stock. For example, the allegations involving Autoweb and Backweb Technologies state: One customer, in order to obtain shares of the Autoweb IPO from CSFB, was required or induced to and did purchase from CSFB in the aftermarket, at prices substantially above the IPO price, about twice the number of Autoweb shares allocated to that customer in the IPO. * * * * * * One customer, in order to obtain shares of the Backweb Technologies IPO from Goldman Sachs, was required or induced to and did purchase from Goldman Sachs in the aftermarket, at prices substantially above the IPO price, more than three times the number of Back-Web Technologies shares allocated to that customer in the IPO. Id. ¶ 34 at 13-14 (emphasis added). Second, the allegations differ as to the amount of stock that the customer was required or induced to buy in the aftermarket. For instance, while one" }, { "docid": "23568099", "title": "", "text": "a strong inference that in the Cacheflow IPO J.P. Morgan knew that the misstatements and omissions in the registration statements were misleading; or, at least, acted with reckless disregard towards their truth. Similarly, in the Master Allegations, Plaintiffs allege that at least one customer was required or induced by J.P. Morgan to buy stock in the aftermarket at prices substantially above the IPO price in six IPOs. These allegations also raise a strong inference that in the Cacheflow IPO J.P. Morgan knew that the misstatements and omissions in the registration statements were false or misleading because the Allocating Underwriters would and did require Tie-in Agreements and Undisclosed Compensation. Paragraph (b)(2) has thus been satisfied. c. Individual Defendants On November 13, 2002, I directed Plaintiffs to submit charts summarizing their allegations of scienter as to the Individual Defendants and Issuers in each of the 309 complaints. See Order, In re Initial Public Offering Sec. Litig., No. 21 MC 92 (S.D.N.Y. Nov. 13, 2002) (“11/13/02 Order”). As to the Individual Defendants, Plaintiffs were directed to identify (1) their title, (2) whether they signed the relevant registration statement, (3) the source of their knowledge of the alleged misrepresentations or omissions, (4) the number of shares of the relevant Issuer that they owned, (5) the number of shares sold, (6) the dates(s) of sale, and (7) the proceeds from the sale. In response, Plaintiffs submitted a chart on November 26, 2002. As an example, Plaintiffs submitted the following chart in connection with the Ask Jeeves Inc. offering: Individual Defendant Signed? Source of Knowledge Shares Owned Shares Sold Date (s) Sold. Robert W, Wrubel President, CEO and Member -Road Show interaction Underwriter Defendants prior to IPO Approximately 100,000 shares (Including 10,000 in Secondary Offering) 8/16/2000-2/23/2001 Approximately $1,320,000 (Including $720,000 in Secondary Offering) gg 137, 138, 139, 140 Individual Defendant stock sales ¶ 22 ¶ 142(a) ¶ 142(b) ¶ 142(b) Plaintiffs’ allegations against the Individual Defendants who signed the registration statement are not nearly as strong as those against the Underwriters. This is not surprising given that the Complaints most fully describe the conduct and motivations" }, { "docid": "298792", "title": "", "text": "POOLER, Circuit Judge. Determined to recover losses sustained in the initial public offering (“IPO”) market which flourished during the stock market boom of the late 1990s, investor-plaintiffs brought more than 1,000 class action lawsuits (the “Securities Actions”) against issuers, underwriters, and brokers, all alleging widespread manipulation of both the IPO market and IPO aftermarket. In re Initial Pub. Offering Secs. Litig., 174 F.Supp.2d 70, 75 (S.D.N.Y.2001). On August 8, 2001, Chief Judge Michael B. Mu-kasey signed an order transferring all of the Securities Actions for pre-trial purposes to the Hon. Shira A. Scheindlin, district judge for the United States District Court for the Southern District of New York. Certain defendants asked Judge Scheindlin to recuse herself from the Securities Actions. She refused. Thirty-nine of the defendant underwriting firms (the “Moving Defendants”) now petition for a writ of mandamus reversing the November 28, 2001, opinion and order of the district court (Scheindlin, J.) denying their motion for recusal under 28 U.S.C. § 455. In seeking the district judge’s removal, the Moving Defendants primarily argue that (1) the district court judge’s financial and legal interests, as well as knowledge acquired during her participation as a private investor in several IPOs, mandate recusal under 28 U.S.C. § 455(b)(1), (4) and (5); (2) 28 U.S.C. § 455 does not permit a district court judge to cure a conflict by divesting the offending interest unless substantial judicial time has been invested; (3) substantial judicial time has not been invested here because the Securities Actions were not consolidated and transferred until August 2001; and (4) comments made by the district court judge, along with her divestment of certain stocks to retain jurisdiction, create an appearance of partiality requiring her recusal under 28 U.S.C. § 455(a). Because we find the district court expended substantial judicial time in the Securities Actions before the recusal motion was made, and because we do not believe an appearance of bias exists, we deny the writ. BACKGROUND The underlying actions The Securities Actions allege defendants manipulated the IPO and IPO aftermarkets in a variety of ways, including nondisclosure of commissions and other" }, { "docid": "23567969", "title": "", "text": "& Randall Smith, U.S. Probes Inflated Commissions for Hot IPOs, Wall St. J., Dec. 7, 2000, at Cl. The article explained: The Securities and Exchange Commission along with the U.S. attorney’s office in Manhattan are conducting the inquiry, which is at an early stage, the people say. A federal grand jury has also been called by the U.S. attorney’s office to consider evidence. Both the U.S. attorney’s office and the SEC have issued subpoenas to IPO participants, requesting trading records and other documents, these people add. The authorities are scrutinizing ways in which Wall Street dealers may have sought and obtained larger-than-typical trading commissions in return for giving coveted allocations of IPOs to certain investors. Some of the arrangements could have included specific formulas tied to the investors’ profits on the offerings, the people familiar with the probe say. Id. The first complaint in this litigation was filed one month later. See Makaron v. VA Linux Sys., Inc., 01 Civ. 242 (filed Jan. 11, 2001). IV. THE COMPLAINTS Plaintiffs have filed an Amended Complaint in 308 of the 309 consolidated cases. The Complaints detail the allegations about each Issuer’s offering and set forth the various claims against the Underwriters, the Issuer and its officers. In addition, Plaintiffs have filed a document entitled “Master Allegations” that contains the allegations that are shared by all of the Complaints. The individual Complaints incorporate the Master Allegations by reference. A. Individual Complaints As a randomly-chosen example of the individual Complaints, I shall describe in some detail the 34-page Consolidated Amended Complaint in In re Cacheflow, Inc. Sec. Litig., 01 Civ. 5143 (filed April 24, 2002) (“Cacheflow Compl.”). 1. Factual Allegations and Allegations of Market Manipulation In 1999, Cacheflow, Inc., was a Sunnyvale, California-based company that produced appliances designed to speed up content delivery over the Internet. See Cacheflow Compl. ¶ 17. At the time the company decided to go public, Brian NeS-mith was the company’s President and Chief Executive Officer, Michael Malcolm was Chairman of the Board of Directors, and Michael Johnson was Chief Financial Officer, Vice President and Secretary. See id. ¶¶ 18-20." }, { "docid": "23568001", "title": "", "text": "paragraph contains the only reference to the alleged motivation of the Issuers and the Individual Defendants to participate in this scheme. See id. ¶ 112. “The Issuers, as new publicly held corporations, benefitted financially from the misconduct as the run up of their respective stock prices afforded them with substantial opportunities to utilize their stock as currency in connection with corporate acquisitions, and to raise even more money through add-on offerings.” Id. As far as the Individual Defendants are concerned, “[they] were motivated to and did benefit financially as a result of the sharp appreciation in value of the respective Issuer’s stock price.” Id. C. Part II and Part III of the Master Allegations Although the second and third part of the Master Allegations fill hundreds of pages, they are easily summarized. Part II has twenty-two sections, each of which is tabbed to one particular Underwriter Defendant. All of the sections contain (1) background information on that Underwriter, (2) quotations from various newspaper articles reporting on perceived abuses in the IPO allocations by that investment bank, and (3) a list of the IPOs and their offering price that the Underwriter led or co-led, First Day High Price, and the percentage increase that the First Day High represents when compared to the IPO price. In addition, the twenty-one page section on CSFB restates facts revealed from the government’s investigation into the IPO allocation practices of that bank as well as its subsequent settlement with the SEC. Part III is marked with two tabs. After Tab A, Plaintiffs have listed each of the fifty-five investment banks and provided several paragraphs of information about the bank’s corporate structure. After Tab B, Plaintiffs have listed the IPOs the Underwriter participated in, the IPO price and the number of shares that investment bank was allocated in that IPO. In addition, Plaintiffs have included estimates as to the amount of additional compensation that customers were required to pay in order to receive the IPO stock. For example, one summary reads: Banc of America IPO Shares IPO Price Allocated Apropos $22.00 2,000 Digital Insight $15.00 2,000 Dígitas" }, { "docid": "23567931", "title": "", "text": "Not the Law..390 XII. SECTION 20 CLAIMS.392 CONCLUDING MATERIAL XIII. LEAVE TO REPLEAD.397 XIV. CONCLUSION.399 TABLE OF AUTHORITIES APPENDICES Al. LIST OF CONSOLIDATED CASES .... C£> H T* A2. SECTION 11. tH (M A3. SECTION 15. 03 (M ^ A4. RULE 10b-5 CLAIMS AGAINST INDIVIDUAL DEFENDANTS CQ (M A5. RULE 10b-5 CLAIMS AGAINST ISSUERS *£> (M ^ A6. SECTION 20. CO INTRODUCTORY MATERIAL These cases allege a vast scheme to defraud the investing public. The scheme — characterized by Tie-in Agreements, Undisclosed Compensation, and analyst conflicts, and concealed by misrepresentations and omissions — was aimed at fraudulently driving up the price of stock in hundreds of companies in the immediate aftermarket of their initial public offerings (“IPOs”). Plaintiffs allege that investment banks routinely required substantial investors to participate in the scheme in order to receive allotments of these valuable IPOs. The companies going public and their officers profited handsomely by taking advantage of the inflated value of the stock to raise capital, enter into mergers and acquisitions, or sell their individual holdings at enormous gains. The investment banks profited by receiving kickbacks from the investors who received the IPO allocations. To hide the scheme from the investing public, the investment banks, companies, and officers violated the securities laws by making misleading statements in offering documents and by manipulating the market. Thousands of ordinary investors, who are. Plaintiffs in these cases, allege that the value of their holdings plummeted as a result of this unlawful conduct. I. INTRODUCTION From January 1998 to December 2000, over 460 high technology and Internet-related companies raised capital by selling ownership of their company to the public. Prior to going public, each company hired a group of investment banks to underwrite their IPO. Some, but not all, of the Underwriters allocated the IPO stock for distribution to initial purchasers (“Allocating Underwriters”). On the day of the IPO, the Allocating Underwriters sold the stock directly to those customers, usually institutional investors. The price of the stock was predetermined and set forth in a registration statement filed with the Securities and Exchange Commission (“SEC”). In general, the Underwriters" } ]

[ { "docid": "22316294", "title": "", "text": "form of procedural relief. Conclusion We reverse the dismissal of Zarvela’s refiled petition and remand for further proceedings. . Rule 6(e) provides: \"Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period.” . Section 2244(b)(2) provides: A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless- (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. . An appropriately conditioned stay is not inconsistent with Geraci v. Senkowski, 211 F.3d 6 (2d Cir.2000), in which a refiled habeas petition was untimely where the petitioner waited 283 days after his conviction became final to pursue an initial state collateral challenge, 78 days after that challenge was denied to pursue a second state collateral challenge, and seven days after that challenge was denied to return to federal court. That 368-day total rendered his petition untimely by three days. Id. at 8-9 (alternate holding). While die first collateral challenge was pending, an initial habeas petition had been filed and dismissed for lack of exhaustion. Geraci v. Senkowski, 23 F.Supp.2d 246, 251 (E.D.N.Y.1998). The brief intervals we authorize on this appeal as conditions of a stay would not have aided Geraci because he did not return to federal court within 30 days after his first state collateral" } ]

[ { "docid": "3350511", "title": "", "text": "equitably toll the limitations period during the time that a first habeas petition is pending before a dismissal without prejudice. Id. In addition, Justice Stevens noted that neither of his suggestions contravened the “narrow holding” of the majority opinion in Duncan, id. at 2130, and the majority agreed by declaring that Justice Stevens’s concern presented an issue that was not before the Court, id. at 2129. In circumstances similar to the case at bar, the Second Circuit adopted the alternative approach recommended by Justice Stevens. In Zarvela v. Artuz, 254 F.3d 374 (2d Cir.2001), the court addressed a situation in which a defendant’s first habe-as petition was dismissed without prejudice on non-exhaustion grounds. The first petition was filed with only two days of eligibility remaining on his grace period. The defendant filed for state post-conviction relief only nine days after the dismissal of his first petition. Fourteen days after the final disposition of his unexhaust-ed claims in state court, the defendant filed a second habeas petition, but the district court dismissed the petition with prejudice because he exceeded his grace period by nine days, excluding other “tolla-ble” days. Id. at 377-78. To achieve the objective of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), as reenforced by AEDPA, see 28 U.S.C. § 2254(b)(1)(A), which is to assure that a district court will not grant relief on unexhausted claims, the Second Circuit established the following framework for circumstances in which a dismissal without prejudice “ ‘could jeopardize the timeliness of a collateral attack.’ ” Zarvela, 254 F.3d at 380 (quoting Freeman v. Page, 208 F.3d 572, 577 (7th Cir.2000)). A district court should dismiss only the unexhausted claims in the habeas petition and stay further proceedings on the remaining portion until the petitioner has exhausted his/her remedies in state court. Id. To allay the concern that a petitioner might take an undue amount of time to pursue state court remedies, the court imposed a brief, reasonable time limit upon the petitioner to present claims to state courts and return to federal court exhaustion, “normally 30 days”" }, { "docid": "9965934", "title": "", "text": "consider two uses of the equitable powers of the federal courts to ensure that petitioners who invoke the court’s jurisdiction within the 1-year interval prescribed by AEDPA are not barred from having their federal claims heard. Id. at 182-84, 121 S.Ct. 2120. First, Justice Stevens suggested that courts confronted with a mixed petition could stay the proceedings rather than dismiss them completely. Id. at 182-83, 121 S.Ct. 2120. Under this stay and abeyance procedure, courts retain jurisdiction over the exhausted claims, dismiss the unexhausted claims, and stay the habeas proceedings pending the complete exhaustion of state remedies. Second, Justice Stevens urged the federal courts to equitably toll the limitations period for petitioners who initially invoked the court’s jurisdiction during the statuto ry one-year period. Id. at 183, 121 S.Ct. 2120 (“[NJeither the Court’s narrow holding, nor anything in the text or legislative history of AEDPA, precludes a federal court from deeming the limitations period tolled for such a petition as a matter of equity”). Shortly thereafter, the Second Circuit addressed the issue raised by Justice Stevens. Zarvela v. Artuz, 254 F.3d 374 (2d Cir.2001). The petitioner in Zarvela filed his habeas petition with only two days remaining in the limitations period. Id. at 377. Subsequently, he sought permission to withdraw the petition without prejudice so that he could exhaust a new claim in the state courts. Id. The District Court granted his motion. Id. Nine days later, he filed his new claim in state court; fourteen days after the state appellate decision was rendered, he re-filed his federal habeas petition. Id. The District Court dismissed his petition as untimely. Id. The Second Circuit held that the District Court confronted with Zarvela’s mixed petition should have issued a stay rather than grant the petitioner’s motion to withdraw. Id. at 380, 383 (noting that a stay “will be the only appropriate course in cases like Zarvela’s. where an outright dismissal ‘could jeopardize the timeliness of a collateral attack.’ ”) (citing Freeman v. Page, 208 F.3d 572, 577 (7th Cir.2000)) (emphasis added). Such a stay, the court ruled, should have been conditioned upon" }, { "docid": "22546051", "title": "", "text": "have perfected an appeal because the district court could dismiss a federal habeas petition filed before this time expires for failure to exhaust state remedies). The rationale of these cases is persuasive. At any time during a statutory grace period, a petitioner may file an appeal; we therefore presume he is “attempting, through proper use of state court procedures,” to seek an appeal during this time. Moreover, AEDPA strongly encourages petitioners to exhaust state court remedies before seeking federal ha-beas review. 28 U.S.C. § 2254(b)(1)(A). A definition of “pending” that encompasses statutory grace periods for appeal furthers AEDPA’s objective of state remedy exhaustion by tolling the limitations period for the entire period during which a petitioner could pursue a state appeal. Mr. Gibson’s limitations period was therefore tolled during the thirty-day grace period for appeal; the clock began running again on May 25, 1996, when the thirty-day period expired. B. Consideration of State Decisions to Reach the Merits Mr. Gibson argues that, because the state appellate court allowed his appeal out of time, we should toll the statute of limitations during the entire period between his initial filing for post-conviction relief and the state appellate court’s final denial, including the period between the expiration of his time to appeal and his filing of a motion for leave to appeal out of time. We do not agree. The state court’s grant of leave to appeal out of time cannot erase the time period during which nothing was pending before a state court. In addition, we have held that a state court’s decision dismissing a prisoner’s post-conviction application as procedurally barred does not determine whether an application is “properly filed” for tolling purposes under AEDPA. Habteselassie v. Novak, 209 F.3d 1208, 1212 (10th Cir.2000) (“We decline to follow the minority view that construes § 2244(d)(2) to mean that a state post-conviction petition is not properly filed if it is ultimately determined to be procedurally barred or otherwise is determined to be frivolous or without merit.”). Following this logic, a state court’s decision to reach the merits of a case does not transform" }, { "docid": "23427051", "title": "", "text": "petitioner’s federal petition might obtain relief. See id. at 182-83, 121 S.Ct. 2120 (Stevens, J., concurring). First, Justice Stevens wrote that district courts could simply hold proceedings in abeyance while the petitioner returned to state court. When a petition contains an unexhausted claim, Justice Stevens wrote, “there is no reason why a district court should not retain jurisdiction over a meritorious claim and stay further proceedings pending the complete exhaustion of state remedies.” Id. Second, Justice Stevens indicated that although statutory tolling was not available, equitable tolling remained an option. “[A] federal court might very well conclude that tolling is appropriate based on the reasonable belief that Congress could not have intended to bar federal habeas review for petitioners who invoke the court’s jurisdiction within the 1-year interval prescribed by AED-PA.” Id. at 183, 121 S.Ct. 2120. This court has endorsed Justice Stevens’s concurrence. In Palmer v. Carlton, 276 F.3d 777 (6th Cir.2002), we ruled that a petitioner whose original petition was filed within the one-year statute of limitations, but whose petition, after the statute of limitations had expired, was voluntarily dismissed without prejudice to allow exhaustion of state remedies, could return to federal court following exhaustion provided that the petitioner filed for state court relief and returned to federal court within “a brief, reasonable time limit.” See id. at 781. We suggested that the petitioner should file in state court within a time period of “ ‘normally 30 days’ ” after the federal dismissal and should return to federal court within “'30 days’ ” of exhaustion. See id. at 781 (quoting and relying on Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir.), cert. denied, — U.S. -, 122 S.Ct. 506, 151 L.Ed.2d 415 (2001)); see also Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir.2000) (suggesting that equitable tolling should be available “when a prisoner actively pursues judicial remedies but files a defective pleading during the statutory period”). The petitioner in Palmer had neither conformed to the “normal” thirty-day period for returning to federal court nor explained his delay, so this court affirmed the district court’s dismissal. See" }, { "docid": "23142845", "title": "", "text": "petition on its own motion, the courts below erred in dismissing the petitions as untimely without providing petitioners prior notice and an opportunity to be heard. We therefore vacate and remand for further proceedings consistent with this opinion. I. BACKGROUND AEDPA provides a one-year period of limitation for filing habeas petitions pursuant to Section 2254. See 28 U.S.C. § 2244(d)(1). Depending on the circumstances surrounding the claims, the limitation period runs from one of several dates: 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)(l)(A)-(D). The limitation period is tolled during the time that a properly filed application for state post-conviction review is pending, see id. at § 2244(d)(2), and may be equitably tolled where appropriate, see Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000) (per curiam). In this case, each of the petitioners filed pro se a petition for a writ of habeas corpus on Form AO 241 (Rev.5/85) (the “AO Form”). As required by Rule 2(c) the Rules Governing Section 2254 Cases in the United States District Courts (the “2254 Habeas Rules”), the AO Form is substantially the same as the form annexed to the 2254 Habeas Rules (the “2254 Habeas Rules Form”). See 2254 Habeas Rule 2(c) (petition must be in “substantially the form annexed to the rules”). The 2254 Habeas Rules Form was last amended on" }, { "docid": "22316284", "title": "", "text": "portion of the petition or to dismiss the petition in its entirety. In many cases, a stay will be preferable, see Duncan, 121-S.Ct. at 2130 (Stevens, J., with whom Souter, J., joins, concurring in part and in the judgment) (“[Tjhere is no reason why a district court should not retain jurisdiction over a meritorious claim and stay further proceedings pending the complete exhaustion of state remedies.”), and, as discussed below, will be the only appropriate course in cases like Zarvela’s where an outright dismissal “could jeopardize the timeliness of a collateral attack.” Freeman, 208 F.3d at 577. See Duncan, 121 S.Ct. at 2130 (Stevens, J., with whom Souter, J., joins, concurring in part and in the judgment) (“Indeed, there is every reason to [stay proceedings pending exhaustion] ... when the failure to retain jurisdiction would foreclose federal review of a meritorious claim because of the lapse of AEDPA’s 1-year limitations period.”). We recognize, however, that a stay, unless appropriately conditioned, could permit a habeas petitioner to take an undue amount of time to pursue state court remedies. We noted that problem in Warren, which concerned a habeas petitioner whose petition was dismissed without prejudice so that he could pursue new, unexhausted claims in the state courts. Warren, 219 F.3d at 113. After the dismissal, he failed to present his new claims to the state courts, and sought to return to the federal court to reactivate his original petition more than 20 months after its dismissal. He contended that the time between the dismissal and his request for reactivation should be tolled from the one-year limitations period. We rejected his claim, ruling that he had failed to exercise the “ ‘reasonable diligence’ ” required for equitable tolling. Id. (quoting Smith, 208 F.3d at 17). We also rejected his claim that his refiled petition related back to the initial filing date of his dismissed petition. Id. at 14. Sharing a concern expressed by the Fifth Circuit, we noted that if Warren’s contention were upheld, a habeas petitioner whose petition was dismissed for lack of exhaustion “ ‘could then wait decades to exhaust" }, { "docid": "5925730", "title": "", "text": "Duncan does not prohibit equitable tolling. Justice Stevens’ concurrence indicated that nothing in the majority opinion would prevent a court from equitably tolling the statute of limitations period for “petitioners whose timely filed habeas petitions remain pending in district court past the limitations period, only to be dismissed after the court belatedly realizes that one or more claims have not been exhausted.” Duncan, 533 U.S. at 184, 121 S.Ct. 2120 (Stevens, J., concurring). In a footnote, the Justice stated that “[t]he court below ... did not reach the question whether it ‘should exercise its equitable powers to exclude the [time] during which the first [habeas] petition was pending,’ 208 F.3d 357, 362 (C.A.2 2000), [and] is free to consider the issue on remand.” Almost all courts addressing the issue have been asked to equitably toll the statute of limitation period for untimely petitions, not to prospectively toll the period at the time the courts were dismissing timely petitions, as was the case here. Although such a decision would normally be made by the district court that receives Hargrove’s untimely petition, we find that the district court’s actions here were reasonable. Recently, the Second Circuit was confronted with a factually similar situation in Zarvela v. Artuz, 254 F.3d 374, 376 (2d Cir.2001). Zarvela sought permission to withdraw his timely petition, without prejudice to renew at a later date, so that he could present a new claim to the state courts. Zarvela, 254 F.3d at 377. Zarve-la pursued his state court remedies and returned to federal court fourteen days after he was denied leave to appeal. Id. The district court dismissed Zarvela’s subsequent petition as untimely. Id. The Second Circuit decided that the district court should have stayed Zarvela’s first petition, subject to appropriate conditions. When a district court elects to stay a petition, “it should explicitly condition the stay on the prisoner’s pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief internormally 30 days after state court exhaustion is completed.” Id. at 381. Because Zarvela" }, { "docid": "7604271", "title": "", "text": "Court by writ of certiorari expires, which is ninety days after the date on which direct review of the case has been completed by the highest court in the state. See Jimenez v. Walker, 166 F.Supp.2d 765, 770 (E.D.N.Y.2001) (citing Ross v. Artuz, 150 F.3d 97, 98 (2d Cir.1998)). Thus, for the purposes of the AEDPA, De Jesus’s conviction became final on June 6, 1999, which was ninety days after the New York Court of Appeals denied his application for leave to appeal. Accordingly, De Jesus had until June 6, 2000 to file a timely habeas petition in federal court, not including any time tolled while “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment is pending.” 28 U.S.C. § 2244(d)(2). The Supreme Court recently held that the phrase “State post-conviction or other collateral review” does not include federal habeas corpus petitions, and thus, the one-year limitations period is not tolled during the pendency of a federal habeas petition. See Duncan v. Walker, 533 U.S. 167, 121 S.Ct. 2120, 150 L.Ed.2d 251 (June 18, 2001), rev’g Walker v. Artuz, 208 F.3d 357 (2d Cir.2000); see also Jimenez, 166 F.Supp.2d at 770. Consequently, De Jesus had until February 23, 2001 to file a timely Second Habeas Petition. The Second Ha-beas Petition was filed on July 12, 2001, roughly four and one-half months outside of the AEDPA’s one-year statute of limitations, and therefore, is considered untimely- Nevertheless, under appropriate circumstances, the AEDPA’s one-year statute of limitations is subject to equitable tolling. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000). The AEDPA’s “one-year period is a statute of limitations rather than a jurisdictional bar.” Id. Equitable tolling of the one-year limitations period is available “when extraordinary circumstances prevent a prisoner from filing a timely habeas petition.” Warren v. Garvin, 219 F.3d 111, 113 (2d Cir.), cert. denied, 531 U.S. 968, 121 S.Ct. 404, 148 L.Ed.2d 312 (2000). Moreover, the party seeking equitable tolling, here De Jesus, “must have acted with reasonable diligence throughout the period he seeks to toll.” Id. (internal quotations and" }, { "docid": "16278207", "title": "", "text": "leave to appeal that denial). The limitations clock began running again on February 15, 2000, when a state post-conviction application was no longer pending. The limitations clock continued to run for the next 13 days, until February 28, 2000, the date on which Jimenez filed his petition for a writ of error coram nobis. The one-year statute of limitations was tolled again from February 28, 2000 through June 12, 2000, when the petitioner’s coram nobis application was pending in the Appellate Division. The clock started again on June 13, 2000 and ran for the next six days until June 19, 2000, the date the petitioner refiled his habeas corpus petition. When these nineteen days are added to the 356-day total, the one-year AEDPA statute of limitations is exceeded by ten days, and Jimenez’s petition is thus time-barred. The Court notes that in August 1999, Jimenez presented it with a choice: dismiss the petition with leave to refile, or stay the proceedings while the petitioner exhausted his state-court remedies. The Court dismissed the petition with leave to refile. Had the Court stayed the proceedings instead, Jimenez’s petition would not be time-barred, because it was filed on May 5, 1999, twenty-three days before the expiration of the limitations period. Since the Supreme Court’s decision in Duncan, the Second Circuit has stated that when a district court is presented with a petition containing exhausted and unexhausted claims, the district court should dismiss only the unexhausted claims and stay further proceedings on the remaining portion of the petition where, as here, “outright dismissal could jeopardize the timeliness of a collateral attack.” Zarvela v. Artuz, 254 F.3d 374, 379 (2d Cir.2001). To avoid the problems associated with excessive delays in seeking exhaustion, the Second Circuit suggested “conditioning] the stay on the petitioner’s initiation of exhaustion within a limited period, normally 30 days, and a return to the district court after exhaustion is completed, also within a limited period, normally 30 days.” Id. at 381. If the district court chooses to dismiss the entire petition, the Second Circuit recommends including in the dismissal order “an appropriate" }, { "docid": "9965935", "title": "", "text": "Stevens. Zarvela v. Artuz, 254 F.3d 374 (2d Cir.2001). The petitioner in Zarvela filed his habeas petition with only two days remaining in the limitations period. Id. at 377. Subsequently, he sought permission to withdraw the petition without prejudice so that he could exhaust a new claim in the state courts. Id. The District Court granted his motion. Id. Nine days later, he filed his new claim in state court; fourteen days after the state appellate decision was rendered, he re-filed his federal habeas petition. Id. The District Court dismissed his petition as untimely. Id. The Second Circuit held that the District Court confronted with Zarvela’s mixed petition should have issued a stay rather than grant the petitioner’s motion to withdraw. Id. at 380, 383 (noting that a stay “will be the only appropriate course in cases like Zarvela’s. where an outright dismissal ‘could jeopardize the timeliness of a collateral attack.’ ”) (citing Freeman v. Page, 208 F.3d 572, 577 (7th Cir.2000)) (emphasis added). Such a stay, the court ruled, should have been conditioned upon the petitioner’s “prompt initiation of state .court exhaustion and his prompt return to federal court after completion of exhaustion,” 254 F.3d at 376-77. Thus, the appellate court directed district courts prospectively to “explicitly condition the stay on the prisoner’s pursuing state court remedies within a brief interval, normally 30 days, after the stay is entered and returning to federal curt within a similarly brief .interval, normally 30 days after state court exhaustion is completed.” Without using the language of equitable tolling, the circuit court found that the petitioner was “entitled to have his petition treated as if it had been stayed, provided his entry to the state courts and his return occurred promptly.”. . Finding, that the petitioner would have complied with the timeliness conditions of the stay that should have been granted, the appellate court reversed and remanded for further proceedings. In Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir.2002), this Court endorsed the stay and abeyance procedure adopted by the Second Circuit in Zarvela, The court wrote: , The Second Circuit [stay" }, { "docid": "22316295", "title": "", "text": "would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. . An appropriately conditioned stay is not inconsistent with Geraci v. Senkowski, 211 F.3d 6 (2d Cir.2000), in which a refiled habeas petition was untimely where the petitioner waited 283 days after his conviction became final to pursue an initial state collateral challenge, 78 days after that challenge was denied to pursue a second state collateral challenge, and seven days after that challenge was denied to return to federal court. That 368-day total rendered his petition untimely by three days. Id. at 8-9 (alternate holding). While die first collateral challenge was pending, an initial habeas petition had been filed and dismissed for lack of exhaustion. Geraci v. Senkowski, 23 F.Supp.2d 246, 251 (E.D.N.Y.1998). The brief intervals we authorize on this appeal as conditions of a stay would not have aided Geraci because he did not return to federal court within 30 days after his first state collateral challenge was denied. Instead, 78 days later, he filed a second state collateral challenge. See Geraci, 211 F.3d at 9. . Zarvela's refiled petition, sought to be renewed after his initially filed petition had been dismissed without prejudice to permit exhaustion, was properly not considered a \"second or successive petition” within the meaning of 28 U.S.C. § 2244(b)(2). See Slack v. McDaniel, 529 U.S. 473, 485-87, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Warren, 219 F.3d at 113 n. 1. . The claims presented in that initial petition (and renewed in the refiled petition) are properly before the District Court because that initial petition should have been stayed. Whether the new claim presented in the refiled petition is entitled to be considered to “relate back” to the timely claims in the initial petition is a matter for consideration by the District Court. .In view of our disposition, we need not consider (1) Zarvela’s claims that circumstances during his prison confinement warrant equitable tolling, (2) Judge Raggi’s deci sion to extend the one-year limitations period by" }, { "docid": "4104936", "title": "", "text": "diligence brought his federal habeas petition, moved to have the petition dismissed without prejudice in order to fully exhaust state remedies, proceeded to exhaust his claims in state court, and thereupon renewed his habeas petition. Rodriguez v. Bennett, 303 F.3d 435, 438-39 (2d Cir.2002). In addition, the Second Circuit has directed that, after Duncan, the “only appropriate course in cases ... where an outright dismissal could jeopardize the timeliness of a collateral attack” is to stay further proceedings. Zarvela v. Artuz, 254 F.3d 374, 380 (2d Cir.) (quotation omitted), cert. denied, Fischer v. Zarvela, 534 U.S. 1015, 122 S.Ct. 506, 151 L.Ed.2d 415 (2001); see also Duncan, 533 U.S. at 182, 121 S.Ct. 2120 (Stevens, J., concurring in part and in the judgment) (“[I]n our post-AEDPA world there is no reason why a district court should not retain jurisdiction over a meritorious claim and stay further proceedings pending the complete exhaustion of state remedies. Indeed, there is every reason to do so_”). Thus, where a petitioner has acted with reasonable diligence it is appropriate to treat a prior dismissal as a stay. See Musgrove v. Filion, 232 F.Supp.2d 26, 29 (E.D.N.Y.2002) (“[T]he Court should have stayed the petition and allowed the petitioner to exhaust his state remedies. Because it did not do that, extraordinary circumstances prevented the petitioner from filing a timely petition. Accordingly, the Court will treat his dismissed habeas petition as if it had been stayed provided he acted with reasonable diligence between the dismissal and his return to federal court.”); Butti v. Giambruno, No. 02-CIV-3900, 2002 WL 31885973, at *3, 2002 U.S. Dist. LEXIS 24708, at *8-*9 (S.D.N.Y. Dec. 26, 2002) (applying equitable tolling principles in similar situation). C. Exhaustion A state prisoner’s federal habeas petition must be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1989). “This exhaustion requirement is ... grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations" }, { "docid": "23464744", "title": "", "text": "a timely petition. Then after the end of 1996 Schlueter did not attempt to ascertain from Lauer prior to the January 16, 1997 deadline of which he was well aware whether Lauer, in fact, had filed a PCRA petition. We also find it significant that the period of limitations at issue in Seit-zinger was a brief 90 days and that the attorney filed the complaint only one day late. Thus, the attorney’s misconduct warranted equitably tolling one day of a short period of limitations. Here, the AEDPA’s limitation period is one year, and did not begin to run until April 24, 1996, nearly nine years after Schlueter’s conviction became final in 1987. Schlueter did not initiate state post-conviction proceedings until 1998 and did not pursue federal habeas corpus relief until 2000 even though he had been convicted in 1987. The circumstances in Schlueter’s case simply do not warrant the application of equitable tolling after such lengthy periods of time had elapsed following his conviction before he sought state and federal relief. Schlueter also relies on Spitsyn v. Moore, 345 F.3d 796 (9th Cir.2003), and Baldayaque v. United States, 338 F.3d 145 (2d Cir.2003), for the proposition that attorney malfeasance constitutes an extraordinary circumstance sufficient to warrant equitable tolling of the one-year period of limitation. As these cases amply demonstrate, however, a finding that attorney malfeasance is an extraordinary circumstance, without more, is not sufficient to warrant equitable tolling. Spitsyn holds that egregious attorney misconduct may justify equitable tolling, but also requires district courts to examine the petitioner’s due diligence in pursuing the matter under the specific circumstances he faced. Spitsyn, 345 F.3d at 802. Likewise, Balda-yaque holds that “an attorney’s conduct, if it is sufficiently egregious, may constitute the sort of ‘extraordinary circumstances’ that would justify the application of equitable tolling.” Baldayaque, 338 F.3d at 152-53. Baldayaque, however, expressly states that the presence of extraordinary circumstances “is not enough” — a petitioner “must also show that he acted with reasonable diligence, and that the extraordinary circumstances caused his petition to be untimely.” Id. at 153 (citation omitted). In other words," }, { "docid": "22316285", "title": "", "text": "court remedies. We noted that problem in Warren, which concerned a habeas petitioner whose petition was dismissed without prejudice so that he could pursue new, unexhausted claims in the state courts. Warren, 219 F.3d at 113. After the dismissal, he failed to present his new claims to the state courts, and sought to return to the federal court to reactivate his original petition more than 20 months after its dismissal. He contended that the time between the dismissal and his request for reactivation should be tolled from the one-year limitations period. We rejected his claim, ruling that he had failed to exercise the “ ‘reasonable diligence’ ” required for equitable tolling. Id. (quoting Smith, 208 F.3d at 17). We also rejected his claim that his refiled petition related back to the initial filing date of his dismissed petition. Id. at 14. Sharing a concern expressed by the Fifth Circuit, we noted that if Warren’s contention were upheld, a habeas petitioner whose petition was dismissed for lack of exhaustion “ ‘could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to “continue” his federal remedy, without running afoul of the statute of limitations.’ ” Id. (quoting Graham, 168 F.3d at 780). However, the concern about excessive delays in seeking exhaustion and in returning to federal court after exhaustion can easily be dispelled by allowing a habeas petitioner no more than reasonable intervals of time to present his claims to the state courts and to return to federal court after exhaustion. Cf. Adams v. United States, 155 F.3d 582, 584 n. 2 (2d Cir.1998) (petitioner improperly denied opportunity to file timely collateral attack afforded new opportunity “provided that he does so promptly”). Therefore, where a district court elects to dismiss only unexhausted claims and stay proceedings as to the balance of the petition, the court should condition the stay on the petitioner’s initiation of exhaustion within a limited period, normally 30 days, and a return to the district court after exhaustion is completed, also within a limited" }, { "docid": "14150098", "title": "", "text": "at 380. If a habeas petition is stayed, the petitioner should be given a reasonable interval, normally 30 days, to file his application for state post-conviction relief, and another reasonable interval after the denial of that relief to return to federal court. See id. If a petitioner fails to meet either time-limit, the stay should be vacated nunc pro tunc. See id. We note that while these two “reasonable intervals” may appear to enlarge the one-year limitations period for some petitioners, technically these intervals are only available after a petition has been timely filed. See id. at 382. Further, we agree with the court in Zarvela that such brief additional time is consistent with the purpose of AEDPA’s limitation period, which was to make sure that a state prisoner does not take more than one year after his conviction becomes final to present his federal claim. State prisoners should have the full year allowed them by Congress to consider and prepare their federal habeas petitions, and, if it turns out that the presence of unexhausted claims and the requirements of federal law require a round trip to and from state court to accomplish exhaustion, brief intervals to meet such requirements should not be counted against that one-year period. Prompt action by the petitioner to initiate exhaustion and return to federal court after its completion serves as the functional equivalent of the “reasonable diligence” that has long been a prerequisite to equitable tolling of limitations periods. Id., 254 F.3d. at 382 (emphasis added); see also Walker, 533 U.S. at 183, 121 S.Ct. 2120 (Stevens, J., concurring) (holding that it is reasonable to believe “that Congress could not have intended to bar federal habeas review for petitioners who invoked the court’s jurisdiction within the 1-year interval prescribed by AEDPA).” IY. Conclusion For the reasons stated above, the District Court’s dismissal of petitioner’s habe-as corpus petition is reversed, and this case is remanded for further proceedings consistent with this opinion. . Crews did not move for reconsideration of the denial of his first PCRA petition in the Pennsylvania Supreme Court, or petition the" }, { "docid": "9965938", "title": "", "text": "federal court and filed a second habe-as petition. This wait amounted to more than the “normal” 30-day period suggested by the Second Circuit as a reasonable period for a petitioner to return to federal jurisdiction, and the record offers no reason for the two-month delay. Id. at 781-82. As the petitioner waited sixty days after his state court dismissal to re-file his habeas petition, he would not have complied with the retroactive stay contemplated by the Zarvela court. Like the Zarvela court, the Palmer court did not conduct a traditional equitable tolling analysis.. Instead, it simply determined that had the petitioner’s case been stayed conditionally upon the two 30-day' filing windows, the petitioner would not have complied. 276 F.3d at 781-82. Notably, the court did not indicate that the failure to comply with this “normal” time period was dispositive. Indeed, the court suggested that an adequate explanation might have excused the delay. Id. (“[T]he record offers no reason for the two-month delay.”). But, Palmer offered no reason for his delay that would have permitted the court to consider whether equitable tolling was appropriate. Nor could he have. Between the March 2 habeas dismissal and the May 24 habeas re-filing, the petitioner does not appear to have filed any additional proceedings in the state court. Instead, the petitioner was relying on a previously-filed state action that sought declaratory relief on purely state grounds. Id. at 780 (“[TJhis pleading did not present a federal question for review.”); Palmer v. Tennessee Dep’t of Correction, 1998 WL 870534 (Tenn.Ct.App.1998), appeal denied (Mar. 22, 1999) (raising Tennessee statutory and Tennessee constitutional claims but no federal constitutional claims). Palmer was a poor candidate for equitable tolling not simply because he waited sixty days after his state proceedings were completely concluded to re-file his federal habeas action, but because he did not bring any federal challenges whatsoever during this time period. In Hargrove v. Brigano, 300 F.3d 717 (6th Cir.2002), this Court more fully endorsed the stay-and-abeyance procedure in the context of AEDPA statute of limitations. In Hargrove, the petitioner sought habeas relief on the grounds of" }, { "docid": "4104935", "title": "", "text": "a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000). As Justice Stevens noted in his concurring opinion in Duncan, [Njeither the Court’s narrow holding, nor anything in the text or legislative history of AEDPA, precludes a federal court from deeming the limitations period tolled for [a first habeas] petition as a matter of equity. The Court’s opinion does not address a federal court’s ability to toll the limitations period apart from § 2244(d)(2). Furthermore, a federal court might very well conclude that tolling is appropriate based on the reasonable belief that Congress could not have intended to bar federal habeas review for petitioners who invoke the court’s jurisdiction within the 1-year interval prescribed by AEDPA. 533 U.S. at 183, 121 S.Ct. 2120 (Stevens, J., concurring in part and in the judgment) (citation omitted). Heeding Justice Stevens’ advice, the Second Circuit has indicated that tolling would be manifestly appropriate for an out-of-time petition where the petitioner has with diligence brought his federal habeas petition, moved to have the petition dismissed without prejudice in order to fully exhaust state remedies, proceeded to exhaust his claims in state court, and thereupon renewed his habeas petition. Rodriguez v. Bennett, 303 F.3d 435, 438-39 (2d Cir.2002). In addition, the Second Circuit has directed that, after Duncan, the “only appropriate course in cases ... where an outright dismissal could jeopardize the timeliness of a collateral attack” is to stay further proceedings. Zarvela v. Artuz, 254 F.3d 374, 380 (2d Cir.) (quotation omitted), cert. denied, Fischer v. Zarvela, 534 U.S. 1015, 122 S.Ct. 506, 151 L.Ed.2d 415 (2001); see also Duncan, 533 U.S. at 182, 121 S.Ct. 2120 (Stevens, J., concurring in part and in the judgment) (“[I]n our post-AEDPA world there is no reason why a district court should not retain jurisdiction over a meritorious claim and stay further proceedings pending the complete exhaustion of state remedies. Indeed, there is every reason to do so_”). Thus, where a petitioner has acted with reasonable diligence it is appropriate to" }, { "docid": "3350510", "title": "", "text": "district court might undertake. First, Justice Stevens suggested that district courts implement a stay over habeas proceedings until unex-hausted claims are addressed in state courts: [Ajlthough the Court’s pre-AEDPA decision in Dose v. Lundy ... prescribed the dismissal of federal habeas corpus petitions containing unexhausted claims, in our post-AEDPA world there is no reason why a district court should not retain jurisdiction over a meritorious claim and stay further proceedings pending the complete exhaustion of state remedies. Indeed, there is every reason to do so when AEDPA gives a district court the alternative of simply denying a petition containing unexhausted but non-meritorious claims, see 28 U.S.C. § 2254(b)(2) (1994 ed„ Supp. V), and when the failure to retain jurisdiction would foreclose federal review of a meri torious claim because of the lapse of AEDPA’s 1-year limitations period. Id. Second, relying upon a “reasonable belief that Congress could not have intended to bar federal habeas review for petitioners who invoke the court’s jurisdiction within the 1-year interval prescribed by AEDPA,” Justice Stevens proposed that district courts equitably toll the limitations period during the time that a first habeas petition is pending before a dismissal without prejudice. Id. In addition, Justice Stevens noted that neither of his suggestions contravened the “narrow holding” of the majority opinion in Duncan, id. at 2130, and the majority agreed by declaring that Justice Stevens’s concern presented an issue that was not before the Court, id. at 2129. In circumstances similar to the case at bar, the Second Circuit adopted the alternative approach recommended by Justice Stevens. In Zarvela v. Artuz, 254 F.3d 374 (2d Cir.2001), the court addressed a situation in which a defendant’s first habe-as petition was dismissed without prejudice on non-exhaustion grounds. The first petition was filed with only two days of eligibility remaining on his grace period. The defendant filed for state post-conviction relief only nine days after the dismissal of his first petition. Fourteen days after the final disposition of his unexhaust-ed claims in state court, the defendant filed a second habeas petition, but the district court dismissed the petition with prejudice" }, { "docid": "18523193", "title": "", "text": "state habeas relief on June 15, 2001 or soon thereafter, other than his failure to begin his inquiries while incarcerated at Northern Cl CDU and to move more quickly in gathering supporting documentation and researching his case while he had full library access and faced less restrictive conditions at MaeDougall Cl. See Belot, 490 F.3d at 207-208 (holding it within the district court’s discretion to deny equitable tolling where the petitioner should have filed “an unpolished petition within the allotted time”); Hizbullahankhamon, 255 F.3d at 76 (rejecting equitable tolling on reasonable diligence grounds where the petitioner failed to demonstrate that “but for those 22 days at the very beginning of the one-year limitations period during which petitioner was allegedly denied access to legal materials, he would have been able to file his petition within the one-year limitations period”). The Court sees no reason why Mr. Adkins needed until November 7, 2001—almost a full year after his release from Northern Cl CDU on November 28, 2000 and approximately five months after the expiration of the AEDPA limitations period on June 15, 2001—to file his application for state habeas relief. Thus, the Court finds that even if the combination of factors upon which Mr. Adkins relies in support of equitable tolling did constitute an “extraordinary circumstance,” he has nonetheless failed to show that he acted with reasonable diligence to pursue his habeas rights during the period spanning June 15, 2000 and November 7, 2001. Equitable tolling of the 168 days between June 15, 2000 and November 28, 2000, and a corresponding extension of the limitations period to November 7, 2001, is therefore unwarranted. 3. Emotional Trauma. This still leaves the issue of emotional trauma that Mr. Adkins argues justifies equitable tolling because his mental condition was both an extraordinary circumstance that prevented him from filing in a timely manner and a factor in his ability to diligently pursue his rights. Mr. Adkins seeks equitable tolling on the basis of his alleged emotional trauma from June 15, 2000 through his transfer from Northern Cl CDU to MacDougall Cl on November 28, 2000. As" }, { "docid": "6592638", "title": "", "text": "thereby assuring habeas petitioners “the full year allowed them by Congress.” Zarvela v. Artuz, 254 F.3d at 382. Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, is not to the contrary. There, the Supreme Court determined that a habeas petitioner was not entitled to equitable tolling of a thirty-two-month period while he exhausted state remedies because he had failed to demonstrate diligence in this pursuit. See id. at 419, 125 S.Ct. 1807 (“[Pjetitioner waited years, without any valid justification, to assert [his state claims]. Had petitioner advanced his claims within a reasonable time of their availability, he would not now be facing any time problem, state or federal.”). This confirmed our own precedent, indicating that a court may deny equitable tolling when the petitioner did not seek collateral review diligently. See Smith v. McGinnis, 208 F.3d at 17-18. To the extent the Supreme Court further observed that “not only did petitioner sit on his rights for years before he filed his [state] petition, but also sat on them for five more months after his [state] proceedings became final before deciding to seek relief in federal court,” Pace v. DiGuglielmo, 544 U.S. at 419, 125 S.Ct. 1807 (emphasis in original), we understand the latter observation only to reinforce the adverse diligence determination for the period for which tolling was sought, not to establish a distinct diligence requirement that would have rendered the petition untimely even if state remedies had been promptly pursued, see id. (observing that petitioner would not be facing “any time problem” if he had pursued state claims within reasonable time). Nor does Rashid v. Mukasey, 533 F.3d 127 (2d Cir.2008), signal otherwise. There, an alien sought equitable tolling of the filing deadline to reopen removal proceedings. We adhered to the familiar rule that the alien must have exercised diligence “during the entire period he or she seeks to toll.” Id. at 132. What we clarified was that in such reopening cases, the “entire period” to be tolled “includes both the period of time before the ineffective assistance of counsel was or should have been discovered and the" } ]

[ { "docid": "22701373", "title": "", "text": "apply in all cases in which a prisoner asserts that a prison regulation violates the Constitution, not just those in which the prisoner invokes the First Amendment. We made quite clear that the standard of review we adopted in Turner applies to all circumstances in which the needs of prison administration implicate constitutional rights. See Turner, 482 U. S., at 85 (“Our task ... is to formulate a standard of review for prisoners’ constitutional claims that is responsive both to the ‘policy of judicial restraint regarding prisoner complaints and [to] the need to protect constitutional rights’”) (citation omitted); id., at 89 (“If Pell, Jones, and Bell have not already resolved the question posed in [Procunier v.] Martinez, [416 U. S. 396 (1974),] we resolve it now: when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests”); Estate of Shabazz, supra, at 349 (“To ensure that courts afford appropriate deference to prison officials, we have determined that prison regulations alleged to infringe constitutional rights are judged under a ‘reasonableness’ test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights”). In Turner itself we applied the reasonableness standard to a prison regulation that imposed severe restrictions on the inmate’s right to marry, a right protected by the Due Process Clause. See Turner, supra, at 95-96 (citing Zablocki v. Redhail, 434 U. S. 374 (1978), and Loving v. Virginia, 388 U. S. 1 (1967)). Our precedents require application of the standard here. In Turner, we considered various factors to determine the reasonableness of a challenged prison regulation. Three are relevant here. “First, there must be a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.” 482 U. S., at 89 (quoting Block v. Rutherford, 468 U. S. 576, 586 (1984)). Second, a court must consider “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” 482 U. S., at 90. Third, “the absence of ready alternatives" } ]

[ { "docid": "22154243", "title": "", "text": "but was stymied by the error. Had Nunez or someone in his position been provided with the correct program statement upon his initial request, he may have been satisfied and dropped his complaint, thus reducing the quantity of suits. Alternatively, armed with the correct program statement, Nunez or someone in his position may have still believed that his Fourth Amendment rights were violated, but the quality of his suit would have been enhanced. We therefore hold, under the circumstances of this case, that the Warden’s mistake rendered Nunez’s administrative remedies effectively unavailable, and that his failure to exhaust them is excused. 2. Merits Nunez contends that a material question of fact exists regarding whether his Fourth Amendment rights were violated by the strip search. We disagree and affirm the district court’s grant of summary judgment to defendants. Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), provides the standard for reviewing alleged infringements of prisoners’ constitutional rights. See Washington v. Harper, 494 U.S. 210, 224, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990) (stating that Turner applies whenever “the needs of prison administration implicate constitutional rights”); Michenfelder v. Sumner, 860 F.2d 328, 331 (9th Cir.1988) (applying the Turner standard to prisoners’ allegations of Fourth Amendment violations). Turner provides that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89, 107 S.Ct. 2254. Searches of prisoners must be reasonable to be constitutional. See Michenfelder, 860 F.2d at 332. The reasonableness of a particular search of a prisoner is determined by applying the balancing test the Supreme Court announced in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). See Michenfelder, 860 F.2d at 332. In Bell, the Court wrote: The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the" }, { "docid": "23484723", "title": "", "text": "under the Fourth Amendment that was proper ly submitted to the jury. In short, Cornwell's only outstanding Fourth Amendment claim to which the court's charge can apply is for the alleged violation of his limited right to privacy during the strip search. In evaluating prison regulations that allegedly infringe on inmates' constitutional rights, the Supreme Court has set forth a completely different test: “when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 [107 S.Ct. 2254, 2261, 96 L.Ed.2d 64] (1987) (Emphasis added) (reviewing prison regulations regarding inmate to inmate correspondence and marriage); O’Lone v. Estate of Shabazz, 482 U.S. 342 [107 S.Ct. 2400, 96 L.Ed.2d 282] (1987) (challenge to regulations under Free Exercise clause applies same standard). The “rational relationship” standard affords prison officials great flexibility to establish pol-' icies that would best balance the penological interests of the institution with the constitutional rights of the inmates. Turner, supra, 482 U.S. at 89 [107 S.Ct. at 2261]. In determining whether the prison policy is reasonably related to some legitimate penological interest, courts have enumerated several factors for consideration, including (1) whether there is a valid, rational connection between the prison policy and the legitimate governmental interest asserted to justify it; (2) the existence of alternative means for inmates to exercise their constitutional rights; (3) the impact that accommodation to these constitutional rights may have on other guards and inmates, and on the allocation of prison resources; and (4) the absence of ready alternatives as evidence of the reasonableness of the regulation. Id. see also Jordan v. Gardner, 986 F.2d 1521 (9th Cir.1993); Covino v. Patrissi, 967 F.2d 73, 78-79 (2d Cir.1992); Letcher v. Turner, 968 F.2d 508, 510 (5th Cir.1992) (per curiam). . In Orebaugh v. Caspari, 910 F.2d 526 (8th Cir.1990), the Eighth Circuit evaluated whether procedural due process was violated when a \"correctional officer conducting a routine search of [an inmate’s] cell confiscated and destroyed various items [the inmate] had purchased from the prison canteen because they exceeded" }, { "docid": "6767777", "title": "", "text": "association and access to the courts. A review of plaintiffs’ complaint and attached supporting grievance leads the court to conclude that plaintiffs can prove no set of facts that would entitle them to relief. Plaintiffs’ first allegation is that defendants’ interception and confiscation of mail between inmates constituted an unlawful invasion of plaintiffs’ First Amendment right to correspond. There is no doubt that First Amendment issues are implicated when restrictions are imposed upon an inmate’s correspondence. United States v. Holloway, 740 F.2d 1373, 1382 (6th Cir.), cert. denied, 469 U.S. 1021, 105 S.Ct. 440, 83 L.Ed.2d 366 (1984). Yet a prisoner retains only those First Amendment freedoms which are “not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Martin v. Kelley, 803 F.2d 236, 240 n. 7 (6th Cir.1986) (quoting Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974)); see Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Lawful incarceration legitimately requires the retraction or with drawal of many rights and privileges, as a necessary consequence of society’s need to deter and punish crime. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987). Accordingly, plaintiffs blanket assertion of an absolute right against “censorship” of prisoner-to-prisoner correspondence is frivolous. No such absolute right exists. As Turner v. Safley makes clear, prisoners’ First Amendment rights are subject to curtailment for legitimate penological reasons. The judgment primarily rests with the prison administrators “who are actually charged with and trained in the running of the particular institution.” Bell v. Wolfish, 441 U.S. 520, 562, 99 S.Ct. 1861, 1886, 60 L.Ed.2d 447 (1979). In cases of conflict between prisoner rights and institutional regulation, the Supreme Court has established the following standard: When a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is “reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89, 107 S.Ct. at 2261; see Thornburgh v. Abbot, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989)." }, { "docid": "7769791", "title": "", "text": "of privacy.’ ”) (quoting 3 Privacy Law and Practice ¶25.02[1] (George B. Trubow ed., (1991)). Nevertheless, prisoners’ constitutional rights must be exercised with due regard for the requirements of prison administration. Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 2259-60, 96 L.Ed.2d 64 (1987). Courts must give great deference to the decisions of prison officials concerning the management of correctional facilities. Id. at 85-86, 107 S.Ct. at 2259-60. In Turner, the Supreme Court established a rational relationship test for assessing the constitutionality of prison regulations and practices. The Court held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Id. at 89, 107 S.Ct. at 2261. In applying this test, courts should consider the following factors: (1) whether there is a valid, rational connection between the prison regulation or practice and a legitimate governmental interest; (2) whether the regulation or practice allows inmates an alternative means of exercising the subject constitutional right; (3) the impact of accommodation of the asserted right on guards, other inmates, and the allocation of resources generally; and (4) the absence of ready alternatives to the regu lation or practice. Id. at 89-91, 107 S.Ct. at 2261-63. The Court has also discussed the factors that must be considered in assessing the reasonableness of prisoner searches: The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted. Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). We have applied these principles to prisoner searches in a number of cases. See, e.g., Dunn v. White, 880 F.2d 1188, 1190-97 (10th Cir.1989) (holding that noneonsensual blood test does not violate the Fourth Amendment), cert. denied, 493 U.S. 1059," }, { "docid": "5857943", "title": "", "text": "right to privacy: “Although the inmates’ right to privacy must yield to the penal institution’s need to maintain security, it does not vanish altogether.” Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir.1982). A second well established premise is that “a strip search is an invasion of personal rights of the first magnitude.” Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir.1993). In the context of prisoners’ civil rights litigation, the Supreme Court has instructed that when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). These statements by the Court were made in its opinion upholding the validity of prison regulations of correspondence between state prisoners while invalidating restrictions on marriage by such prisoners. Id. at 81, 107 S.Ct. 2254. The Court declared in 1979, fourteen years before the searches at issue here, that determination of the constitutionality of a strip search “requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (emphasis added). Following that decision, we held that a strip search of a motorist detained for a minor traffic offense, which was conducted in a lobby area in view of ten to twelve persons, violated his constitutional rights because there was neither a sufficient security justification for the search, nor any justification for conducting the search in a public area. Hill v. Bogans, 735 F.2d 391 (10th Cir.1984). We said there that Bell v. Wolfish requires courts “to consider the scope of the particular" }, { "docid": "7100253", "title": "", "text": "and refined the factors used to detect constitutional violations resulting from conditions of confinement. The Court set forth four factors in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987): “First, there must be a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.... [T]he second factor ... is whether there are alternative means of exercising the right that remain open to prison inmates -A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.... Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation.” Id. at 89-90, 107 S.Ct. 2254. These factors operate as “guidelines to be weighed in the evaluation of a regulation” not prongs of a four-part test in which each prong must be met. Whitney v. Brown, 882 F.2d 1068, 1071 (6th Cir.1989). The guiding principle, however, is that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89, 107 S.Ct. 2254. As noted above, the question in this case does not focus on the reasonableness of placing uncooperative and disruptive detainees in administrative segregation. Rather, the issue is whether the regulation requiring removal of all of the detainees’ clothes violates the Constitution. Courts in this Circuit have recognized that prisoners have a liberty and privacy interest in shielding their naked bodies from view by others, especially members of the opposite gender. For instance, in Cornwell v. Dahlberg, 963 F.2d 912 (6th Cir.1992), the court held that a prison inmate had a Fourth Amendment privacy interest that may have been violated when he was strip-searched in view of female prison guards and others after a prison uprising. In Kent v. Johnson, 821 F.2d 1220 (6th Cir.1987), the court held that an inmate challenging a Michigan prison’s regulation stated a Fourth Amendment claim in light of Turner’s four factors where he “alleged that the defendants-appellees’ policy and" }, { "docid": "6901985", "title": "", "text": "1220, 1224 (6th Cir.1987). In this case, the sincerity of Flagner’s religious beliefs is not in dispute. Flagner alleges that application of §§ 5120-9-25(D) and (F) violated his First Amendment free exercise rights. He asserts that despite his efforts to prevent prison officials from violating the tenets of his religious faith, the defendants forcibly cut his beard and sidelocks in 1996 and 1998. The Supreme Court has held that in most circumstances, prison officials “should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Wolfish, 441 U.S. at 547, 99 S.Ct. 1861. “To ensure that courts afford appropriate deference to prison officials,” the Supreme Court has “determined that prison regulations alleged to infringe constitutional rights are judged under a ‘reasonableness’ test less restrictive than that ordinarily applied to alleged infringements of fundamental constitutional rights.” O’Lóne v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987). In Turner v. Safley, the Supreme Court articulated the proper standard as follows: “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). We agree with the district court’s conclusion in its March 23, 1999 Order adopting the magistrate judge’s Report and Recommendation that the proper standard to apply in prisoner cases challenging restrictions on the free exercise of religion is supplied by the Supreme Court’s decision in Turner, not by Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). In Smith, the Supreme Court concluded “that generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest.” Id. at 886 n. 3, 110 S.Ct. 1595. Following the Smith decision, Congress enacted the Religious Freedom Restoration Act (RFRA) which was later held unconstitutional by the Supreme Court in City of" }, { "docid": "7194316", "title": "", "text": "to intrude into that sphere of decision making. Deciding to accelerate the searches by using additional assistance from female cadets hardly seems unreasonable in these circumstances. I question second-guessing prison administrators when such credible threats to officers’ safety are present. Indeed; I would think such security concerns vindicate the Supreme Court’s instruction to defer to prison administrators — an instruction that it seems the majority has too hastily disregarded. In sum, we are guided by our precedent and bound by Supreme Court precedent, the jury’s undisputed factual findings, and our deference to prison officials’ expertise in these matters. Balancing the four Bell factors in light of these limitations, I conclude that O’Connell’s search of Byrd was reasonable under the Fourth Amendment, and I respectfully dissent from the contradictory analysis in the majority opinion. . Because the majority holds that the factors articulated in Turner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), are inapplicable to Byrd’s challenge and instead focuses exclusively on the Bell factors, Maj. Op. 1141 n.6, I too only address the Bell factors. It ultimately makes no difference whether we consider the factors articulated in Turner, however, as application of the Turner factors also compels a finding that O'Connell's search of Byrd was reasonable under the Fourth Amendment. See Bull v. City and County of San Francisco, 595 F.3d 964, 975-76 (9th Cir.2010) (en banc) (\"Because the Turner factors require us to give more deference to detention officials' determinations than does the balancing test in Bell, it is not surprising that our consideration of the Turner factors leads to the same conclusion.”). In Turner, the Supreme Court held that \"when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” 482 U.S. at 89, 107 S.Ct. 2254. In making this determination, the Supreme Court directed us to consider four factors. Id. at 89-91, 107 S.Ct. 2254. First, we consider whether there is a \"valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.” Id." }, { "docid": "21571150", "title": "", "text": "and confinement in prison.” Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979). Since inmates retain protections created by the first amendment, Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1972) (per curiam), the Court has found that a prisoner must be given a “reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners who adhere to conventional religious precepts.” Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972) (per curiam). While confinement does not strip a convicted prisoner of all constitutional rights, such rights are limited by the fact of incarceration and by valid penological objectives, such as rehabilitation, deterrence, and security. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987). In this case, we must balance Siddiqi’s right to be afforded a reasonable opportunity to exercise his first amendment right against the legitimate penological goals of the Jail. Hadi v. Horn, 830 F.2d 779, 783 (7th Cir.1987); Caldwell v. Miller, 790 F.2d 589, 596 (7th Cir.1986). The Supreme Court has set out the standard for striking such a balance: “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). See also O’Lone, 482 U.S. at 349, 107 S.Ct. at 2404; Hadi v. Horn, 830 F.2d at 785. This test is less restrictive than that ordinarily applied to infringements on constitutional rights in consideration of the need to give appropriate deference to prison officials, avoiding unnecessary judicial intrusion into security problems and other prison concerns. O’Lone, 482 U.S. at 349-50, 107 S.Ct. at 2404-05. In Turner and O’Lone, the Court identified some factors that are helpful in applying this reasonableness test: (1) whether there is a rational relationship between the regulation and the legitimate governmental interest behind the rule; (2) whether alternative means of exercising the right exist; (3) what impact accommodating the" }, { "docid": "23551725", "title": "", "text": "cautious approach to second-guessing the decisions of prison administrators: [T]he problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have ... additional reason to accord deference to the appropriate prison authorities. Turner v. Safley, 482 U.S. 78, 84-85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (in class action challenge to prison regulations regarding correspondence and inmate marriage, district court granted preliminary injunction in favor of inmates; Eighth Circuit affirmed, finding regulations violated First Amendment; Supreme Court reversed ruling on correspondence regulation, but affirmed order enjoining inmate marriage prohibition). This rationale is no less applicable in the context of jails and detention facilities. See Mauro v. Arpaio, 188 F.3d 1054 (9th Cir.1999) (district court granted summary judgment in favor of county on challenge by prisoners and detainees to jail’s rule against sexually explicit periodicals; Court of Appeals affirmed, finding regulation reasonably related to legitimate penological interests). The district court’s injunction was predicated on the belief that webcam broadcasts constitute impermissible pre-conviction “punishment” in violation of Fourteenth Amendment substantive due process. Although, “under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt,” Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), “if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to ‘punishment,’ ” id. at 539, 99 S.Ct. 1861; see also Valdez v. Rosenbaum, 302 F.3d 1039, 1045 (9th Cir.2002) (district court granted summary judgment in favor of jail officials in detainee’s challenge to restrictions on telephone access; Court of Appeals affirmed). The" }, { "docid": "4398875", "title": "", "text": "L.Ed.2d 459 (1989); Turner, 482 U.S. at 84, 107 S.Ct. at 2259. With these general principles in mind, the court will now address the appropriate standard to be applied to Nichols’ facial and as applied First Amendment challenges. 2. The Appropriate Standard of Review — The “Reasonable Relationship” Test This court’s analysis of Nichols’ First Amendment claims is governed by the Supreme Court’s decisions in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), and Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). A prison rule or regulation which impinges upon an inmate’s constitutional rights is valid “if it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89, 107 S.Ct. at 2261. In adopting the “reasonable relationship” test, Justice O’Connor observed “[o]ur task ... is to formulate a standard of review of prisoners’ constitutional claims that is responsive both to the ‘policy of judicial restraint regarding prisoner complaints and [to] the need to protect constitutional rights.’ ” Id. at 85, 107 S.Ct. at 2259 (quoting Martinez, 416 U.S. at 406, 94 S.Ct. at 1808). Turner opined the “reasonable relationship” test was necessary if “prison administrators ..., and not the courts, [are] to make the difficult judgments concerning institutional operations.” Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. The rule would also distort the decision making process, for every administrative judgment would be subject to the possibility that some court somewhere would conclude that it had a less restrictive way of solving the problem at hand. Courts inevitably would become the primary arbiters of what constitutes the best solution to every administrative problem, thereby “unnecessarily perpetuating] the involvement of the federal courts in affairs of prison administration.” Id. at 89, 107 S.Ct. at 2261-62 (citations omitted). The “reasonable relationship” test articulated in Turner was subsequently applied in Abbott to uphold the facial validity of the Federal Bureau of Prison regulations restricting inmate access" }, { "docid": "47425", "title": "", "text": "to alleged inftingements of fundamental constitutional rights. O’Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987). “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Id. (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987)). The Supreme Court has explained that: In our view, such a standard is necessary if prison administrators ..., and not the courts, [are] to make the difficult judgments concerning institutional operations. Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. The rule would also distort the decision-making process, for every administrative judgment would be subject to the possibility that some court somewhere would conclude that it had a less restrictive way of solving the problem at hand. Courts inevitably would become the primary arbiters of what constitutes the best solution to every administrative problem, thereby unnecessarily perpetuating] the involvement of the federal courts in affairs of prison administration. Turner, 482 U.S. at 89, 107 S.Ct. at 2261-62 (internal citations and quotations omitted) (other alterations in original). The vitality of Turner and O’Lone continues in non-RFRA cases. E.g., Giano v. Senkowski, 54 F.3d 1050 (2d Cir.1995) (applying standard to a prisoner’s First Amendment challenge to prison policy allowing inmates to possess commercially produced erotic literature but prohibiting possession of nude or semi-nude photographs of spouses or girlfriends). However, there does not appear to be a clear consensus in the courts as to whether RFRA’s heightened standard is limited in application to statutory claims brought pursuant to RFRA itself or whether it also applies to constitutional claims brought under the First Amendment. See Francis v. Keane, 888 F.Supp. 568, 572 n. 5 (S.D.N.Y.1995) (collecting cases and analyzing RFRA and constitutional claims separately, applying RFRA compelling interest standard to the former and lower First Amendment reasonableness standard to the latter); see also Alameen v. Coughlin," }, { "docid": "8871954", "title": "", "text": "inmates to receive books and magazines from outside the institution only if the materials were mailed directly from the publisher or a book club.” Id. 441 U.S. at 549, 99 S.Ct. at 1879. The Court concluded that the regulations were a “rational response by prison officials to an obvious security problem,” namely, the smuggling of contraband. Id. 441 U.S. at 550, 99 S.Ct. at 1880. The Court subsequently held in Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987), that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” In Thornburgh v. Abbott, 490 U.S. 401, 404, 109 S.Ct. 1874, 1876, 104 L.Ed.2d 459 (1989), the Court applied Turner in upholding restrictions placed on the receipt of outside publications by convicted prisoners. Although Thornburgh did not involve pretrial detainees, the concern for security is the same for pretrial detainees as for convicted inmates. Bell, 441 U.S. at 546 n. 28, 99 S.Ct. at 1878 n. 28. We therefore apply the same legal standard for detainees as for convicted inmates with due regard for the particular circumstances of pretrial detainment. See id. 441 U.S. at 552, 99 S.Ct. at 1881. Accordingly, we shall apply the Turner standard to determine the constitutionality of the Detention Center’s restrictions on receipt of publications. In Turner, the Supreme Court applied what amounts to a two-part test. First, “there must be a valid, rational connection between the prison regulation and the legitimate- governmental interest put forward to justify it.” Turner, 482 U.S. at 89, 107 S.Ct. at 2261 (internal quotation omitted). The Court emphasized that the governmental interest must be legitimate and neutral. Id. at 90, 107 S.Ct. at 2262. Once a rational connection to a legitimate governmental interest has been established, the second inquiry is whether the challenged regulation is reasonably related to that interest. In evaluating reasonableness, a court must consider whether “there are alternative means of exercising the right that remain open to prison inmates,” as well as “the impact accommodation of the asserted" }, { "docid": "5857942", "title": "", "text": "the alleged violation occurred and must come forward with sufficient facts to show the official violated that clearly established law. The defendant bears the normal summary judgment burden of showing no material facts that would defeat the qualified immunity defense remain in dispute. For the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must be as plaintiff maintains. The contours of the right must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the fight of preexisting law the unlawfulness must be apparent. Foote v. Spiegel, 118 F.3d 1416, 1424 (10th Cir.1997) (quoting V-1 Oil Co. v. Means, 94 F.3d 1420, 1423 (10th Cir.1996)) (internal citations omitted). We begin with the premise that inmates retain some right to privacy: “Although the inmates’ right to privacy must yield to the penal institution’s need to maintain security, it does not vanish altogether.” Cumbey v. Meachum, 684 F.2d 712, 714 (10th Cir.1982). A second well established premise is that “a strip search is an invasion of personal rights of the first magnitude.” Chapman v. Nichols, 989 F.2d 393, 395 (10th Cir.1993). In the context of prisoners’ civil rights litigation, the Supreme Court has instructed that when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). These statements by the Court were made in its opinion upholding the validity of prison regulations of correspondence between state prisoners while invalidating restrictions on marriage by such prisoners." }, { "docid": "23147238", "title": "", "text": "will frequently fail to disclose the reality of a municipality’s power structure. Praprotnik, 108 S.Ct. at 934 (Brennen, J., concurring). Accordingly, it asserted that state law should only serve as a starting point in identifying official policymakers, and courts should be permitted to consider extrastatutory evidence in determining who possessed final policymaking authority in a particular case. Id. Like previous cases, the facts at issue here do not compel us to choose sides in this dispute. . Cal.Gov’t Code § 26605 provides that \"[t]he sheriff shall take charge of and keep the county jail and the prisoners in it.\" See also Brandt v. Board of Supervisors, 84 Cal.App.3d 598, 601, 147 Cal.Rptr. 468, 470 (1978) (“The responsibility for operating jails in this state is placed by law upon the Sheriff.”) . In Michenfelder, we found that the standard announced by the Court in Turner v. Safley, 482 U.S. 78, 107, 107 S.Ct. 2254, 2271, 96 L.Ed.2d 64 (1987), that a prison regulation which \"impinges on inmates’ constitutional rights is valid if it is reasonably related to legitimate penological interests,” is generally applicable to cases involving other prisoners’ constitutional rights as well. Michenfelder, 860 F.2d at 331. Prior to Michen-felder, we had applied the Turner standard only in cases involving the alleged infringement of First Amendment rights. See e.g., Reimers v. Oregon, 846 F.2d 561, 562-63 (9th Cir.1988); McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987). Michenfelder involved a prisoner’s challenge to, among other things, a jail policy of strip searching inmates housed in the maximum security unit every time such inmates left or returned to the unit. In assessing whether the challenged strip search of maximum security prisoners violated Turner's \"reasonable relationship” test, Michenfelder primarily employed the factors set forth in Bell's Fourth Amendment reasonableness standard. Thus, Michen-felder, like all the cases cited below, supports application of the Bell reasonableness standard in this case. . Thompson alleges that the strip search at the county jail included a visual inspection of his anal area. The County does not deny that the County strip search policy indeed calls for a" }, { "docid": "23038999", "title": "", "text": "(1986). This burden to demonstrate a genuine issue of fact increases where the factual context makes the non-moving party’s claim implausible. Matsushita Electric Industrial Company, Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Thus, mere disagreement or the bald assertion that a genuine issue of material fact exists no longer precludes the use of summary judgment. California Architectural Building Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987), cert. denied — U.S. -, 108 S.Ct. 698, 98 L.Ed.2d 650 (1988). In both, Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) and O’Lone v. Estate of Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987), the United States Supreme Court directly addressed the standard for review appropriate for prison regulations which impinge on a prison inmate’s constitutional rights. In both of these cases the Supreme Court rejected the application of “strict scrutiny” analysis to this type of prison regulation. Turner at 482 U.S. 89-90, 107 S.Ct. 2261-62; O’Lone at 482 U.S. 349-50, 107 S.Ct. 2404-05. Instead, the Court decided that the prison regulation must only pass a reasonable relationship test: “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner at 482 U.S. 89, 107 S.Ct. 2261. In Turner, the Court applied the reasonable relation test to uphold a prison regulation which permitted correspondence between immediate family members who are inmates in other correctional institutions and correspondence between inmates concerning legal matters. Under the regulation other correspondence between inmates is permitted only if it was determined to be in the best interest of the parties involved. The Turner Court also used the reasonable relation test to strike down a prison regulation which permitted an inmate to marry only with the permission of the superintendent of the prison. Under this regulation, the superintendant’s approval was only to be given when there was a compelling reason. In O’Lone the Court, upheld prison work policies which prevented some Muslim prisoners from attending" }, { "docid": "9755293", "title": "", "text": "which prison officials could effectively inspect the inmates for concealed contraband or injury. Y. First Amendment Regulations that infringe upon a prisoner’s First Amendment rights must pass a reasonableness test. Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261-62, 96 L.Ed.2d 64 (1987); O’Lone v. Estate of Skabazz, 482 U.S. at 353, 107 S.Ct. at 2406-07. In both Turner and O’Lone, the Supreme Court emphasized that in analyzing the constitutionality of prison regulations, courts should apply the less stringent reasonableness standard, rather than strict scrutiny, in order to ensure that “courts afford appropriate deference to prison officials” and permit the officials “to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration.” O’Lone v. Estate of Skabazz, 482 U.S. at 349, 107 S.Ct. at 2405 (quoting Turner v. Safley, 482 U.S. at 89, 107 S.Ct. at 2261-62). Specifically, the Court considers four factors in determining whether a prison regulation is rationally related to a legitimate penological interest: (1) whether there is a legitimate rational connection between the prison regulation and the government interest; (2) whether the prisoners have alternative means of exercising the constitutional right at issue; (3) the impact that accommodation of the constitutional right would have on other inmates, guards, and prison resources in general; and (4) the availability of alternatives to the regulation. Turner v. Safley, 482 U.S. at 89-90, 107 S.Ct. at 2261-62. The policy or conduct at issue need not be the least restrictive; rather, absent evidence demonstrating that prison officials exaggerated their response to security issues, their expert judgment should be accepted by the Court. Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 128, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977); Hurley v. Ward, 549 F.Supp. 174, 183 (S.D.N.Y.1982). As discussed above, defendants assert that the strip search was reasonable to ensure the security of the facility. The Court has already determined, however, that a genuine issue of fact exists as to whether the strip search was reasonable given plaintiffs’ allegation that they were never actually searched, visually or physically. Similarly, defendants have" }, { "docid": "17470069", "title": "", "text": "ground that defendants had not produced requested documents or answered written interrogatories. The magistrate denied the discovery requests, in part because Walker did not state that the material was necessary to oppose the motion for summary judgment. The magistrate did, however, permit Walker to file an opposition to defendants’ motion. The magistrate recommended that the motion for summary judgment be granted. She concluded that the prison officials had a paramount interest in identifying carriers of the AIDS virus, and that an AIDS test is reasonably related to that legitimate penological objective. The magistrate also determined that the degree of force used by the prison guards was reasonable. Thus, she found no violation of Walker’s constitutional rights. The district court adopted the magistrate’s Report and Recommendation without modification, and granted summary judgment to the defendants. II. DISCUSSION Walker asserts that the involuntary withdrawal of his blood following the threatened use of taser guns constituted an unreasonable search and seizure under the fourth amendment as well as a violation of his eighth amendment rights. For several reasons, we conclude that the district court erred in granting summary judgment on the record before it. Prisoners, despite their conviction and confinement, do not forfeit all constitutional rights. Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979). “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Turner v. Safley, 482 U.S. at 84, 107 S.Ct. at 2259. Nevertheless, prisoners’ constitutional rights are subject to substantial limitations and restrictions in order to allow prison officials to achieve legitimate correctional goals and maintain institutional security. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987); Bell v. Wolfish, 441 U.S. at 546-47, 99 S.Ct. at 1877-78. In Turner v. Safley, the Supreme Court set forth the standard for evaluating prisoners’ constitutional claims. The Court held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. at 89, 107 S.Ct." }, { "docid": "23484722", "title": "", "text": "most dangerous prisoner inmates), cert. denied, 464 U.S. 999, 104 S.Ct. 502, 78 L.Ed.2d 693 (1983). Id. . An Eighth Amendment claim of this nature may also be cognizable under the Fourth Amendment as it specifically relates to privacy. For example, in Cornwell v. Dahlberg, 963 F.2d 912, 916-17 (6th Cir.1992), the Sixth Circuit evaluated whether the Fourth Amendment right to privacy was implicated when an inmate was strip-searched outdoors before several female correctional officers after a prison uprising. On this issue, the Cornwell court explained: A convicted prisoner maintains some reasonable expectations of privacy while in prison, particularly where those claims are related to forced exposure to strangers of the opposite sex, even though those privacy rights may be less than those enjoyed by non-prisoners. E.g., Bell v. Wolfish, 441 U.S. 520, 558 [99 S.Ct. 1861, 1884, 60 L.Ed.2d 447] (1979); Kent v. Johnson, 821 F.2d 1220, 1226-27 (6th Cir.1987) (collecting cases). Accordingly, in challenging the conditions of his outdoor strip search before several female OSR correctional officers, Cornwell raised a valid privacy claim under the Fourth Amendment that was proper ly submitted to the jury. In short, Cornwell's only outstanding Fourth Amendment claim to which the court's charge can apply is for the alleged violation of his limited right to privacy during the strip search. In evaluating prison regulations that allegedly infringe on inmates' constitutional rights, the Supreme Court has set forth a completely different test: “when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 [107 S.Ct. 2254, 2261, 96 L.Ed.2d 64] (1987) (Emphasis added) (reviewing prison regulations regarding inmate to inmate correspondence and marriage); O’Lone v. Estate of Shabazz, 482 U.S. 342 [107 S.Ct. 2400, 96 L.Ed.2d 282] (1987) (challenge to regulations under Free Exercise clause applies same standard). The “rational relationship” standard affords prison officials great flexibility to establish pol-' icies that would best balance the penological interests of the institution with the constitutional rights of the inmates. Turner, supra, 482 U.S. at 89 [107 S.Ct." }, { "docid": "6425766", "title": "", "text": "in Hudson, our circuit has held that the Fourth Amendment right of people to be secure against unreasonable searches and seizures “extends to incarcerated prisoners; however, the reasonableness of a particular search is determined by reference to the prison context.” Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir.1988). In Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987), the Supreme Court stated “when a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” The Court identified four factors to guide reviewing courts in applying this test: 1) the existence of a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it; 2) the existence of alternative means of exercising the right that remain open to prison inmates; 3) the impact that accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally; and 4) the absence of ready alternatives as evidence of the reasonableness of the regulation. Id. at 89-91, 107 S.Ct. at 2261-63. The Supreme Coúrt has held that Turner applies whenever “the needs of prison administration implicate constitutional rights.” Washington v. Harper, 494 U.S. 210, 224, 110 S.Ct. 1028, 1038, 108 L.Ed.2d 178 (1990). Thus, courts have applied the Turner test to prisoners’ Fourth Amendment claims, as well as their First and Fourteenth Amendment claims. See, e.g., Covino v. Patrissi, 967 F.2d 73 (2d Cir.1992); Michenfelder, 860 F.2d at 331. In Michenfelder, we said: Not all four factors will be relevant to each case. For example, the second Turner factor — availability of other avenues for exercising the right infringed upon — is much more meaningful in the [Fjirst [A’Jmendment context than the [FJourth or [Ejighth, where the right is to be free from a particular wrong. Though all our prior decisions employing the Turner ... analysis have involved infringements of inmates’ [F]irst [Ajmendment rights, Reimers v. Oregon, 846 F.2d 561 (9th Cir.1988) (free exercise); McElyea v. Babbitt, 833 F.2d 196, 197 (9th" } ]

[ { "docid": "8673107", "title": "", "text": "McCREE, Circuit Judge. This is an appeal from a judgment of the District Court dismissing an action brought by plaintiff under the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985(3). , Defendant commission had been appointed by the Allen County Fiscal Court (the governing body of Allen County) to operate the Allen County War Memorial Hospital, upon whose medical staff plaintiff had served since its opening. The hospital is the only one in Allen County, and was financed in part by funds made available under the federal Hospital Survey and Construction (Hill-Burton) Act. In February, 1967, the five defendant physicians wrote letters to the commission complaining of certain of plaintiff’s actions and recommending that he not be reappointed to the staff. The complaints did not question his professional ability, but were based on matters such as general uncooperativeness, refusal to handle emergency cases, and dismissal from various medical associations. On March 6, 1967, plaintiff, represented by counsel, appeared before the commission to answer the charges which had been lodged against him. On April 10,1967, plaintiff was denied reappointment. In his complaint, plaintiff alleged that defendants had conspired to, and had in fact denied him, rights secured by the Constitution of the United States. Specifically, he alleged that he had been deprived of the opportunity to practice his profession without due process of law because his hearing had not been impartial, because he had not been sufficiently informed of the charges against him, because the commission had considered information obtained outside of the hearing, and because counsel had not been permitted to cross-examine all those upon whose testimony the commission relied. Further, plaintiff alleged that he had been denied equal protection of the laws because standards had been applied to him different from those which had been applied to other physicians on the staff. Defendants moved to dismiss the complaint on alternate grounds of lack of subject matter jurisdiction and failure to state a claim upon which relief could be granted. The District Court granted the motion on jurisdictional grounds. Defendants’ motion was based on alternate grounds because of" } ]

[ { "docid": "2055781", "title": "", "text": "remanded, 560 F.2d 575 (3d Cir. 1977) (remanded to consider motion to amend complaint to establish jurisdiction on other grounds), or to refuse to perform abortions, see Doe v. Bellin Memorial Hospital, 479 F.2d 756 (7th Cir. 1973). The Fourth Circuit found state action where a hospital, which had received Hill-Burton funds, refused to give staff privileges or treat certain patients on account of their race. At that time, the statute and regulations provided that a hospital did not have to be available to all if separate facilities were available. See Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963) (en banc), cert. denied, 376 U.S. 938, 84 S.Ct. 793,11 L.Ed.2d 659 (1964). In a later case involving a similar allegation, the court found state action not through the statutory authorization for discrimination but through several facts: the hospital had a deed from the city and county with a reverter clause, it had tax-exempt status, it exercised the power of eminent domain, and it received subsidies for capital construction from the state and federal governments. See Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964). More recently, the Fourth Circuit has decided that the receipt of Hill-Burton funds is sufficient to make even the decision to deny a doctor staff privileges state action. See Christhilf v. Annapolis Emergency Hospital Ass’n, Inc., 496 F.2d 174 (1974). This Circuit has rejected the conclusion reached in Christhilf. It has found state action in cases involving denial of staff privileges where the hospitals were in part governed by, or the governing body was appointed by, public officials. See O’Neill v. Grayson County War Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973); Chiaffitelli v. Dettmer Hospital, Inc., 437 F.2d 429 (6th Cir. 1971) (per curiam); Meredith v. Allen County War Memorial Hospital Comm’n, 397 F.2d 33 (6th Cir. 1968). However, that the hospital was regulated by state and federal governments and had received funds under the Hill-Burton Act was not enough for a private hospital’s decision to deny a doctor staff privileges to be state action. Something more than partial federal" }, { "docid": "2745337", "title": "", "text": "state action present herein so as to transform the actions of the defendant hospital from “private” to “public”. “ * * * State involvement sufficient to transform a ‘private’ university into a ‘State’ university requires more than merely chartering the university [citation omitted]; providing financial aid in the form of public funds [citation omitted]; or granting of tax exemptions [citation omitted]. * * * ” Blackburn v. Fisk University, C.A.6th (1971), 443 F.2d 121, 123 [1]. Although the foregoing dealt with the actions of a university, such language was considered “relevant to and dispositive of” an attempt to make private hospitals into public or state institutions. Place v. Shepherd, C.A.6th (1971), 446 F.2d 1239, 1245 [3], In Jackson v. Norton-Children’s Hospitals, Inc., C.A.6th (1973), 487 F.2d 502, the Court upheld the dismissal of the complaint, which alleged that the plaintiff doctor’s civil rights were violated when he was discharged from the defendant hospital’s staff, “ * * * notwithstanding the receipt by the hospital of Hill-Burton funds and the existence of state regulations governing hospitals. * * *” Ibid, at 503[1]. “ * * * Whenever state action has been discovered in the activities of an ostensibly private hospital something more than a partial federal funding is involved. * * * ” Ibid. For example, in O’Neill v. Grayson County War Memorial Hospital, supra, the Court found, not only that the hospital was the only hospital in the county and that it was financed in part by Hill-Burton funds, but also that it operated under a 15-year lease from the county fiscal court in exchange for $1.00 consideration and the hospital’s agreement to fulfill all responsibilities incident to the operation of a hospital. Also, in Meredith v. Allen County War Memorial Hospital Com’n, C.A.6th (1968), 397 F.2d 33, 35 [2, 3], the Court emphasized that the defendant commission members were appointed by the county fiscal court to operate the hospital. The Court specifically held that “* * * [b]ecause the members of the commission hold office as a result of governmental appointment and because they administer a public facility, their" }, { "docid": "10661346", "title": "", "text": "individuals whose freedom of decision-making has, by contract and the reserved governmental power of continuing oversight, been circumscribed substantially more than that accorded an independent contractor, the coloration of state action fairly attaches.” 438 F.2d at 784-785 (footnote omitted). In the instant case, Temple carries out a “specific governmental function”; it is “heavily subsidized”; and its “freedom of decision-making has . . . been circumscribed substantially more than that generally accorded to an independent contractor” by the trustee-appointment and financial accountability provisions of the Act. Hence, “the coloration of state action fairly attaches” to its activities. In a number of cases involving hospitals that received federal funds, subject to state regulation, through the Hill-Burton Act, a finding of “state action” has been based solely on the receipt of Hill-Burton funding. Smith v. Hampton Training School for Nurses, 360 F.2d 577 (4th Cir. 1966); Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963); Meyer v. Massachusetts Eye and Ear Infirmary, 330 F.Supp. 1328 (D.Mass.1971); but see Ozlu v. Lock Haven Hospital, 369 F.Supp. 285 (M.D.Pa.1974). In other hospital cases, the coupling of Hill-Burton funding with governmental appointment of hospital officials has constituted the requisite “state action.” Chiaffitelli v. Dettmer Hospital, Inc., 437 F.2d 429 (6th Cir. 1971); Meredith v. Allen County War Memorial Hospital Commission, 397 F.2d 33 (6th Cir. 1968). Both of these elements — governmental appointment of an institution’s officials and receipt of governmental funds subject to state regulation — are present in the instant case. Indeed, a finding of “state action” is even more appropriate here, for Temple’s subsidies flow directly from the Commonwealth, not the federal government. The finding of “state action” in another hospital case, Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964) (en banc), did not turn on the receipt of Hill-Burton funds, but it too supports the result reached here. Summarizing the state’s involvement with the hospital in question, the late Chief Judge Sobeloff said; “we have a reverter supplemented by detailed regulations; the city and county have supplied construction funds for the expansion of the hospital plant; they" }, { "docid": "2147378", "title": "", "text": "the acceptance of medical judgments reached by staff physicians and hospital reviewing committees regarding Dr. Crowder’s-surgical competence. This decision concerned professional standards of medical fitness; it did not involve custodial or administrative functions which required the Board to base its decision upon state-imposed guidelines. Moreover, only two of the Board’s thirteen members were public officials. This fact, combined with the knowledge that the Board’s decision concerned professional standards of medical fitness, convinces us that the Board’s decision cannot be characterized as “state action.” Although it is true that this court has found “state action” in similar circumstances, see O’Neill v. Grayson County War Memorial Hospital, 472 F.2d 1140, 1143 (6th Cir.1973); Chiaffitelli v. Dettmer Hospital, Inc., 437 F.2d 429, 430 (6th Cir.1971) (per curiam); Meredith v. Allen County War Memorial Hospital Comm’n, 397 F.2d 33, 35 (6th Cir.1968), we believe the legal reasoning of these cases is no longer valid in light of the Supreme Court’s recent holdings in this area of the law. Rather than looking to the number of public officials who serve on the governing board of a private institution, we believe the proper focus concerns whether the State has exercised “coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum, 457 U.S. at 1004, 102 S.Ct. at 2786. Undoubtedly there may be situations where state action is manifest in the decisions of a private entity because public officials work behind the scene to influence a particular result, or because powerful and influential public officers add the prestige of their office to the actions or findings of a private institution. In this case, however, this situation does not exist, and there was no state action. Furthermore, even assuming the continued validity of Meredith and its progeny, see Downs v. Sawtelle, 574 F.2d 1, 7-8 (1st Cir.), cert. denied, 439 U.S. 910, 99 S.Ct. 278, 58 L.Ed.2d 255 (1978); Jackson v. Statler Foundation, 496 F.2d 623, 634-35 (2d Cir.1974), this case is distinguishable from Meredith, Chiaffitelli and O’Neil because in each" }, { "docid": "2147380", "title": "", "text": "of those cases a majority of the members of the hospital’s governing board were accountable to the public. O’Neil, 472 F.2d at 1143 (“board of directors shall at all times contain at least one member from each of the County’s magisterial districts”); Chiaffitelli, 437 F.2d at 430 (“five of the nine members of the hospital’s board of governors are ... responsible to the public”); Meredith, 397 F.2d at 34-35 (entire hospital commission “appointed by governing body of Allen County to operate the hospital”). Here, only two of the thirteen board members were responsible to the public. In our view, this is not sufficient state involvement to constitute “a close nexus between the [Commonwealth of Kentucky] and the challenged action of the [hospital’s board] so that the action of the latter may be fairly treated as that of the State itself.” Blum, 457 U.S. at 1004, 102 S.Ct. at 2786, quoting Jackson v. Metro. Edison Co., 419 U.S. at 351, 95 S.Ct. at 453. See also Aasum v. Good Samaritan Hospital, 395 F.Supp. 363, 368 (D.Ore.1975), aff'd, 542 F.2d 792, 794-95 (9th Cir.1976) (even though three of seven directors of hospital’s board are publicly appointed, hospital is not a state actor). Dr. Crowder further argues that state action is established here because the hospital facility was purchased in 1980 by the governing body of Christian County, Kentucky, and then leased back to the hospital’s Board of Trustees through a financial arrangement authorized by State statute. See Ky.Rev.Stat. §§ 103.200-103.285. The financial agreement between the hospital and Christian County also provided that the Hospital pledge all future revenue to Christian County in order to secure payment of the County bonds issued to finance the acquisition of the hospital. In Hodges v. Metts, 676 F.2d 1133 (6th Cir.1982), we held government action had not been established in the operation of a private housing complex even though the mortgage secured by the operators had been insured by the federal government under section 221(d)(4) of the National Housing Act, 12 U.S.C. § 17151(d)(4). In Hodges, we found that, although the Department of Housing and Urban" }, { "docid": "2081330", "title": "", "text": "public function served by the Hospital. Moreover, the other provisions of the lease, including the nominal consideration, the Foundation’s assumption of all obligations and agreements made by the Fiscal Court to secure funds under the Hill-Burton Act, the agreement that all donations received by the Foundation shall revert to the Fiscal Court should the former cease to exist, and the requirements relating to the Foundation’s maintenance and operation of the Hospital, indicate that the Hospital is not a purely private institution, immune from the mandates of the Fourteenth Amendment. Compare Burton v. Wilmington Parking Authority, 365 U.S. 715, 721-726, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), with Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 171-177, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). We do not suggest that the presence of state action in this case or in any case can be determined by the application of some clear-cut test. Rather, as noted by the Supreme Court in Burton v. Wilmington Parking Authority, supra, 365 U.S. at 722, 81 S.Ct. at 860, “to fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an ‘impossible task’ which ‘This Court has never attempted.’ Kotch v. Board of River Port Pilot Comm’rs, 330 U.S. 552, 556, [67 S.Ct. 910, 912, 91 L.Ed. 1093]. Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance.” In view of the Supreme Court’s ruling in Burton v. Wilmington Parking Authority, supra, and this Court’s decision in Meredith v. Allen County War Memorial Hospital Commission, supra, we conclude that the amended complaint alleged sufficient facts to support a finding of the requisite state action under Appellant’s Section 1983 claim. We therefore hold that the District Court abused its discretion in denying Appellant’s motion for reconsideration and leave to amend the complaint. II. Section 1985(3) Claim In ruling upon Appellant’s claim under 42 U.S.C. § 1985(3), the District Court cited Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), in support of the proposition" }, { "docid": "2081328", "title": "", "text": "the Hospital Foundation leases the Hospital premises from the Grayson County Fiscal Court in exchange for $1.-00 consideration and the Foundation’s agreement to fulfill all duties and responsibilities incident to the maintenance and operation of the hospital. Included in the terms and conditions of the lease are the provisions that all gifts received by the Hospital shall become the property of the Fiscal Court in the event the Foundation ceases to exist, that the Foundation shall assume the obligations and agreements that the Fiscal Court has made with the United States in securing Hill-Burton Act funds, and that the Foundation’s board of directors shall at all times contain at least one member from each magisterial district of Grayson County. In Meredith v. Allen County War Memorial Hospital Commission, 397 F.2d 33 (6th Cir. 1968), this Court was faced with an appeal which was identical in many aspects to the present one. In finding the requisite state action for the claim under Section 1983, the Meredith Court emphasized that the defendant commission members were appointed by the county Fiscal Court and that the defendant hospital, financed in part by Hill-Burton Act funds, was the only one in the area. See also Chiaffitelli v. Dettmer Hospital, Inc., 437 F.2d 429 (6th Cir. 1971). In dismissing Appellant’s complaint, the District Court distinguished our Meredith decision solely on the ground that the commission members in that case were directly appointed by the Fiscal Court, whereas in the present case “no such governmental influence upon the challenged activities under Constitutional attack . . . has been demonstrated.” Although neither the original complaint nor the amended complaint suggests that the Appellee members of the Hospital Foundation’s board of directors are appointed by the county Fiscal Court or any other governmental body, this fact alone does not preclude a finding of the requisite state action in this case. Significantly, one provision of the lease set forth in the amended complaint requires that the board of directors shall at all times contain at least one member from each of the County’s magisterial districts, revealing an element of the" }, { "docid": "2081327", "title": "", "text": "for reconsideration of the District Court’s judgment of dismissal and for leave to amend his complaint, setting forth numerous details respecting the interrelationship between the Hospital Foundation and the Grayson County Fiscal Court, including a lease covering the land and buildings occupied by the Hospital. Indicating that the amended complaint would likewise be subject to dismissal because it failed to allege facts establishing state action, the District Court denied the motion to amend. I. Section 1983 Claim In view of the District Court’s express reason for denying Appellant’s motion to amend his complaint, we look to the amended complaint as well as the original complaint to determine whether the Court properly ruled that Appellant failed to allege facts establishing state action for purposes of his claim under 42 U.S.C. § 1983. The amended complaint reiterated the allegation that the Grayson County War Memorial Hospital is the only hospital located in Grayson County and that it was financed in part by Hill-Burton Act funds. The amended complaint further set forth the current 15-year lease under which the Hospital Foundation leases the Hospital premises from the Grayson County Fiscal Court in exchange for $1.-00 consideration and the Foundation’s agreement to fulfill all duties and responsibilities incident to the maintenance and operation of the hospital. Included in the terms and conditions of the lease are the provisions that all gifts received by the Hospital shall become the property of the Fiscal Court in the event the Foundation ceases to exist, that the Foundation shall assume the obligations and agreements that the Fiscal Court has made with the United States in securing Hill-Burton Act funds, and that the Foundation’s board of directors shall at all times contain at least one member from each magisterial district of Grayson County. In Meredith v. Allen County War Memorial Hospital Commission, 397 F.2d 33 (6th Cir. 1968), this Court was faced with an appeal which was identical in many aspects to the present one. In finding the requisite state action for the claim under Section 1983, the Meredith Court emphasized that the defendant commission members were appointed by" }, { "docid": "10661347", "title": "", "text": "F.Supp. 285 (M.D.Pa.1974). In other hospital cases, the coupling of Hill-Burton funding with governmental appointment of hospital officials has constituted the requisite “state action.” Chiaffitelli v. Dettmer Hospital, Inc., 437 F.2d 429 (6th Cir. 1971); Meredith v. Allen County War Memorial Hospital Commission, 397 F.2d 33 (6th Cir. 1968). Both of these elements — governmental appointment of an institution’s officials and receipt of governmental funds subject to state regulation — are present in the instant case. Indeed, a finding of “state action” is even more appropriate here, for Temple’s subsidies flow directly from the Commonwealth, not the federal government. The finding of “state action” in another hospital case, Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964) (en banc), did not turn on the receipt of Hill-Burton funds, but it too supports the result reached here. Summarizing the state’s involvement with the hospital in question, the late Chief Judge Sobeloff said; “we have a reverter supplemented by detailed regulations; the city and county have supplied construction funds for the expansion of the hospital plant; they continue to provide for its operational needs, grant it tax exemptions, empower it to condemn property and have supplied it with money to build on condemned land.” 329 F.2d at 714-715. In this case, there is no reversionary interest in the Commonwealth, but that is because the Commonwealth still holds title to the many millions of dollars of real and personal property that it allows Temple to use; the Commonwealth has constructed millions of dollars worth of buildings for Temple; it appropriates millions of dollars for Temple’s operational needs; and it grants Temple not only a tax exemption but also the power to issue tax exempt bonds. To be sure, the Commonwealth has not authorized Temple to condemn property, but other indices of state involvement are present —the incorporation of Temple into the Commonwealth system of higher education, the renaming of the institution to reflect its changed' status, and the power to appoint trustees that is vested in Commonwealth officials. Thus, the elements of state involvement present here so closely resemble those present in Eaton," }, { "docid": "3747100", "title": "", "text": "Although the court in Simkins was concerned specifically with the racially discriminatory practices of the Cone Hospital, the policy of Simkins has been expanded to include other questions besides just race. Sams v. Ohio Valley General Hospital Ass’n, 413 F.2d 826 (4th Cir. 1969); see Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964). . Judge Friendly also authored the Powe v. Miles case, supra. DUNIWAY, Circuit Judge (concurring): I concur, but add some observations of my own. Presbyterian Hospital is “private.” It is not owned or operated by the State of California or any of its political subdivisions. No agency of the state selects or is represented on its governing board. Thus several of the cases in which the receipt of Hill-Burton funds or the grant by the state of tax exemption, or both, are mentioned are not in point. See, e. g.: O’Neill v. Grayson County War Memorial Hospital, 6 Cir., 1973, 472 F.2d 1140, 1142-1143;. Chiaffitelli v. Dettmer Hospital, Inc., 6 Cir., 1971, 437 F.2d 429; Sosa v. Board of Managers of Val Verde Memorial Hospital, 5 Cir., 1971, 437 F.2d 173, 174; Foster v. Mobile County Hospital Board, 5 Cir., 1968, 398 F.2d 227, 230; Meredith v. Allen County War Memorial Hospital Commission, 6 Cir., 1968, 397 F.2d 33, 35. Appellant has not shown that there is any California statute or regulation dealing with the procedure or qualifications for staffing the Presbyterian Hospital with doctors. All that is shown is that the hospital’s receipt of substantial Hill-Burton funds does subject certain of its operations to regulation by the state, and that it is exempt from state taxes. Presumably, although we need not so decide, if the hospital took some action under applicable state regulations that action would be “state action.” Our question, then, is narrow: whether other actions by the hospital, not regulated by the state, are “state action” merely because the hospital has received Hill-Burton funds, is tax exempt, and is partially regulated by the state. The answer to this question is “no.” There are many “private” charitable organizations that receive subventions of various kinds" }, { "docid": "2607018", "title": "", "text": "(7th Cir. 1971). In Simkins v. Moses Cone Memorial Hospital, 323 F.2d 959 (4th Cir. 1963), the court held that the use of Hill-Burton funds to establish a separate but equal hospital provided a basis for a § 1983 suit. There, however, the state was deeply involved in the objectionable activity, since it authorized the dual hospital system and directed the disbursement of Hill-Burton funds to perpetuate it. Hence the decision is distinguishable. A number of other cases have held that a private hospital receiving Hill-Burton funds acts under color of state law if it is the only hospital in the area. In Shulman v. Washington Hospital Center, 319 F.Supp. 252 (D.C.1970), the court held that constitutional standards could be imposed on hospitals which “were the only hospitals in the area, and thus acquired a quasi-public character,” at 255. A similar result was reached in O’Neill v. Grayson County War Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973) (hospital acted under color of state law where it was the only hospital in the city, had Hill-Burton funding, had facilities which were leased from the county in return for their maintenance and operation). See also Sams v. Ohio Valley General Hospital Association, 413 F.2d 826 (4th Cir. 1969); Meredith v. Allen County War Memorial Hospital Com’n, 397 F.2d 33 (6th Cir. 1968). Here, however, Sacred Heart Hospital is not in such a dominant or monopoly situation. Indeed plaintiff can scarcely make this argument since she in fact availed herself of the services of one of the other hospitals in the city in obtaining a tubal ligation. Thus we find that the provision of 13 percent of Sacred Heart General Hospital’s construction costs since 1961 through the Hill-Burton and HEW programs, exemption from taxes and regulation by the state do not provide a basis for a § 1983 suit. Hence, it was proper to dismiss the complaint. III. MOOTNESS The dismissal of appellant’s request for equitable relief can also be sustained on the ground that the issue is moot in light of appellant’s sterilization. The parties have stipulated that “Surgical sterilization by" }, { "docid": "2055782", "title": "", "text": "state and federal governments. See Eaton v. Grubbs, 329 F.2d 710 (4th Cir. 1964). More recently, the Fourth Circuit has decided that the receipt of Hill-Burton funds is sufficient to make even the decision to deny a doctor staff privileges state action. See Christhilf v. Annapolis Emergency Hospital Ass’n, Inc., 496 F.2d 174 (1974). This Circuit has rejected the conclusion reached in Christhilf. It has found state action in cases involving denial of staff privileges where the hospitals were in part governed by, or the governing body was appointed by, public officials. See O’Neill v. Grayson County War Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973); Chiaffitelli v. Dettmer Hospital, Inc., 437 F.2d 429 (6th Cir. 1971) (per curiam); Meredith v. Allen County War Memorial Hospital Comm’n, 397 F.2d 33 (6th Cir. 1968). However, that the hospital was regulated by state and federal governments and had received funds under the Hill-Burton Act was not enough for a private hospital’s decision to deny a doctor staff privileges to be state action. Something more than partial federal funding is needed for state action. See Jackson v. Norton-Children’s Hospitals, Inc., 487 F.2d 502, 503 (6th Cir. 1973) (per curiam), cert. denied, 416 U.S. 1000, 94 S.Ct. 2413, 40 L.Ed.2d 776 (1974). This Court rejected an analogous claim of state action in Griffith v. Bell-Whitley Community Action Agency, 614 F.2d 1102, 1108-10 (6th Cir.), cert. denied, 447 U.S. 928, 100 S.Ct. 3025, 65 L.Ed.2d 1122 (1980). The plaintiffs in that case challenged their discharges from the community action agency as violations of their First and Fifth Amendment rights. They claimed the actions of the agency were government actions because the agency received virtually all of its operating funds from the federal government, was subject to extensive regulations, and was part of the federal government’s war on poverty. This Court held the private agency did not have a symbiotic relationship with the government so as to fall under Burton; nor was there a nexus between the funding and the regulations and the action challenged. Thus, the complaints were dismissed for failure to state a cause" }, { "docid": "2081326", "title": "", "text": "not accept the admittance of any of Appellant’s patients after December 31, 1970. It further alleged that the Board refused Appellant staff privileges at the Hospital. The above actions by the Board were said to have constituted a denial of due process and equal protection in that Appellant was not sufficiently informed of the charges against him, was not afforded an impartial hearing, was not permitted to cross examine witnesses against him, and was subjected to standards different from those applied to other physicians at the Hospital. Defendants-Ap-pellees are said to have acted individually under color of state law and in a conspiracy to deny Appellant his constitutional rights. The District Court granted Defendants-Appellees’ motion to dismiss the complaint for lack of federal jurisdiction, noting that the alleged actions of Defendants-Appellees were not taken under color of state law, as required for purposes of the claim under 42 U.S.C. § 1983, and that no state agents were involved in the alleged conspiracy for purposes of the claim under 42 U.S.C. § 1985(3). Plaintiff-Appellant subsequently moved for reconsideration of the District Court’s judgment of dismissal and for leave to amend his complaint, setting forth numerous details respecting the interrelationship between the Hospital Foundation and the Grayson County Fiscal Court, including a lease covering the land and buildings occupied by the Hospital. Indicating that the amended complaint would likewise be subject to dismissal because it failed to allege facts establishing state action, the District Court denied the motion to amend. I. Section 1983 Claim In view of the District Court’s express reason for denying Appellant’s motion to amend his complaint, we look to the amended complaint as well as the original complaint to determine whether the Court properly ruled that Appellant failed to allege facts establishing state action for purposes of his claim under 42 U.S.C. § 1983. The amended complaint reiterated the allegation that the Grayson County War Memorial Hospital is the only hospital located in Grayson County and that it was financed in part by Hill-Burton Act funds. The amended complaint further set forth the current 15-year lease under which" }, { "docid": "16385385", "title": "", "text": "if the court should find only some other significant evidence of ‘state action’ ”. Jackson v. Statler Foundation, 496 F.2d 623, 635 (2d Cir. 1974). Other courts have also held that the appointment by the state of a majority of an institution’s board is either determinative of state action or an important factor in establishing state action. See Meredith v. Allen County War Memorial Hospital, 397 F.2d 33 (6th Cir. 1968); Chiaffitelli v. Dettmer Hospital, Inc., 437 F.2d 429 (6th Cir. 1971); O’Neill v. The Grayson County War Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973) ; Isaacs v. Board of Trustees of Temple University, 385 F.Supp. 473 (E.D.Penn. 1974) ; Braden v. University of Pittsburgh, 392 F.Supp. 118 (W.D.Pa.1975). In Aasum v. Good Samaritan Hospital, 395 F.Supp. 363 (D.Ore.), aff’d, 542 F.2d 792 (9th Cir. 1976), the court concluded that the appointment of three of seven directors of the hospital’s board by city, county and state officials did not make the hospital a state actor, but the court also specifically distinguished Jackson v. Statler Foundation, supra, as involving state appointment of a majority of the board, while the Oregon hospital only had a minority of its board appointed by the state. Similarly, we did not find the Rhode Island School of Design to be a state actor, although five of its forty-three directors were required to be state or city officials. See Lamb v. Ran-toul, 561 F.2d 409 (1st Cir. 1977). The crucial fact, as noted previously, is that the town of Milo appoints the entire board of Milo Community Hospital. Although the other aspects of state involvement do not appear to us to be as critical as the appointment of the Board of Directors, they nevertheless offer additional support for our conclusion. Other courts have found that ownership by the city or state of a reversionary interest in an institution’s property is an important factor in finding state action. See Hampton v. City of Jacksonville, 304 F.2d 320 (5th Cir. 1962); Eaton v. Gibbs, 329 F.2d 710 (4th Cir. 1964). Moreover, the distribution of the hospital’s , profits," }, { "docid": "3300126", "title": "", "text": "PER CURIAM. The plaintiff, a licensed physician, sued the hospital for discharging him from the hospital staff, claiming federal jurisdiction on the basis of 42 U.S.C. Secs. 1983 and 1985, and also on the basis of the general federal question statute, 28 U.S.C. See. 1343. The district court in a carefully reasoned opinion sustained the defendant’s motion for summary judgment and dismissed the plaintiff’s action. He was of the opinion that the action of the defendant hospital did not constitute state action within the meaning of Sec. 1983, not withstanding the receipt by the hospital of Hill-Burton funds and the existence of state regulations governing hospitals. A number of cases support this holding and we are of the opinion that it is correct. Whenever state action has been discovered in the activities of an ostensibly private hospital something more than a partial federal funding is involved. See Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir. 1973); O’Neill v. Grayson County Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973); Place v. Shephard, 446 F.2d 1239 (6th Cir. 1971); Chiaffitelli v. Dettmer Hospital, Inc., 437 F.2d 429 (6th Cir. 1971); Meredith v. Allan County War Memorial Hospital Commission, 397 F.2d 33 (6th Cir. 1968). The district court further found that plaintiff was accorded due process of law in his discharge even if it should be assumed that state action was present. The record fully supports the conclusion that the plaintiff was accorded proper notice and a fair hearing at all three levels of the administrative process prior to his discharge, including the Personnel Relations Committee, the Executive Committee, and the Board of Directors Medical Staff Liaison Committee. Despite proper notice, plaintiff failed to attend the hearings or to present any evidence to controvert the charges which had been made against him in connection with his conduct. As to the Sec. 1985 claim, the district court found that the statute was not applicable so as to confer federal jurisdiction inasmuch as the record wholly failed to reveal a “class-based invidious discriminatory animus” or intent on the part of the alleged conspirators." }, { "docid": "2147379", "title": "", "text": "on the governing board of a private institution, we believe the proper focus concerns whether the State has exercised “coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum, 457 U.S. at 1004, 102 S.Ct. at 2786. Undoubtedly there may be situations where state action is manifest in the decisions of a private entity because public officials work behind the scene to influence a particular result, or because powerful and influential public officers add the prestige of their office to the actions or findings of a private institution. In this case, however, this situation does not exist, and there was no state action. Furthermore, even assuming the continued validity of Meredith and its progeny, see Downs v. Sawtelle, 574 F.2d 1, 7-8 (1st Cir.), cert. denied, 439 U.S. 910, 99 S.Ct. 278, 58 L.Ed.2d 255 (1978); Jackson v. Statler Foundation, 496 F.2d 623, 634-35 (2d Cir.1974), this case is distinguishable from Meredith, Chiaffitelli and O’Neil because in each of those cases a majority of the members of the hospital’s governing board were accountable to the public. O’Neil, 472 F.2d at 1143 (“board of directors shall at all times contain at least one member from each of the County’s magisterial districts”); Chiaffitelli, 437 F.2d at 430 (“five of the nine members of the hospital’s board of governors are ... responsible to the public”); Meredith, 397 F.2d at 34-35 (entire hospital commission “appointed by governing body of Allen County to operate the hospital”). Here, only two of the thirteen board members were responsible to the public. In our view, this is not sufficient state involvement to constitute “a close nexus between the [Commonwealth of Kentucky] and the challenged action of the [hospital’s board] so that the action of the latter may be fairly treated as that of the State itself.” Blum, 457 U.S. at 1004, 102 S.Ct. at 2786, quoting Jackson v. Metro. Edison Co., 419 U.S. at 351, 95 S.Ct. at 453. See also Aasum v. Good Samaritan Hospital, 395 F.Supp. 363, 368 (D.Ore.1975)," }, { "docid": "2081325", "title": "", "text": "CELEBREZZE, Circuit Judge. This is an appeal from the District Court’s dismissal of Plaintiff-Appellant’s suit under the Civil Rights Act of 1871, 42 U.S.C. '§§ 1983 and 1985. The named Defendants-Appellees include the Grayson County War Memorial Hospital and the Grayson County Hospital Foundation, Inc., the latter being a non-stock, non-profit charitable corporation. According to the complaint, the Hospital is the only one located in the County, and it was financed in part by funds appropriated under the Federal Hospital Survey and Construction (Hill-Burton) Act. The named individual Defendants-Ap-pellees are nine members of the board of directors of Grayson County War Memorial Hospital, five physicians who serve on the staff of the Hospital, the Hospital’s administrator, and seven members of the Fiscal Court of Grayson County, Kentucky (the governing body of Gray-son County). Appellant is a licensed physician, practicing in Leitchfield, Grayson County, Kentucky. The complaint alleged that by letter dated December 9, 1970, the Hospital’s board of directors advised Appellant that they would not allow him to be on the hospital staff and would not accept the admittance of any of Appellant’s patients after December 31, 1970. It further alleged that the Board refused Appellant staff privileges at the Hospital. The above actions by the Board were said to have constituted a denial of due process and equal protection in that Appellant was not sufficiently informed of the charges against him, was not afforded an impartial hearing, was not permitted to cross examine witnesses against him, and was subjected to standards different from those applied to other physicians at the Hospital. Defendants-Ap-pellees are said to have acted individually under color of state law and in a conspiracy to deny Appellant his constitutional rights. The District Court granted Defendants-Appellees’ motion to dismiss the complaint for lack of federal jurisdiction, noting that the alleged actions of Defendants-Appellees were not taken under color of state law, as required for purposes of the claim under 42 U.S.C. § 1983, and that no state agents were involved in the alleged conspiracy for purposes of the claim under 42 U.S.C. § 1985(3). Plaintiff-Appellant subsequently moved" }, { "docid": "2081329", "title": "", "text": "the county Fiscal Court and that the defendant hospital, financed in part by Hill-Burton Act funds, was the only one in the area. See also Chiaffitelli v. Dettmer Hospital, Inc., 437 F.2d 429 (6th Cir. 1971). In dismissing Appellant’s complaint, the District Court distinguished our Meredith decision solely on the ground that the commission members in that case were directly appointed by the Fiscal Court, whereas in the present case “no such governmental influence upon the challenged activities under Constitutional attack . . . has been demonstrated.” Although neither the original complaint nor the amended complaint suggests that the Appellee members of the Hospital Foundation’s board of directors are appointed by the county Fiscal Court or any other governmental body, this fact alone does not preclude a finding of the requisite state action in this case. Significantly, one provision of the lease set forth in the amended complaint requires that the board of directors shall at all times contain at least one member from each of the County’s magisterial districts, revealing an element of the public function served by the Hospital. Moreover, the other provisions of the lease, including the nominal consideration, the Foundation’s assumption of all obligations and agreements made by the Fiscal Court to secure funds under the Hill-Burton Act, the agreement that all donations received by the Foundation shall revert to the Fiscal Court should the former cease to exist, and the requirements relating to the Foundation’s maintenance and operation of the Hospital, indicate that the Hospital is not a purely private institution, immune from the mandates of the Fourteenth Amendment. Compare Burton v. Wilmington Parking Authority, 365 U.S. 715, 721-726, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961), with Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 171-177, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). We do not suggest that the presence of state action in this case or in any case can be determined by the application of some clear-cut test. Rather, as noted by the Supreme Court in Burton v. Wilmington Parking Authority, supra, 365 U.S. at 722, 81 S.Ct. at 860, “to fashion" }, { "docid": "2745338", "title": "", "text": "* * *” Ibid, at 503[1]. “ * * * Whenever state action has been discovered in the activities of an ostensibly private hospital something more than a partial federal funding is involved. * * * ” Ibid. For example, in O’Neill v. Grayson County War Memorial Hospital, supra, the Court found, not only that the hospital was the only hospital in the county and that it was financed in part by Hill-Burton funds, but also that it operated under a 15-year lease from the county fiscal court in exchange for $1.00 consideration and the hospital’s agreement to fulfill all responsibilities incident to the operation of a hospital. Also, in Meredith v. Allen County War Memorial Hospital Com’n, C.A.6th (1968), 397 F.2d 33, 35 [2, 3], the Court emphasized that the defendant commission members were appointed by the county fiscal court to operate the hospital. The Court specifically held that “* * * [b]ecause the members of the commission hold office as a result of governmental appointment and because they administer a public facility, their actions must be regarded as having been taken under color of law. * * *” Ibid, at [2]. Finally, in Chiaffitelli v. Dettmer Hospital, Inc., C.A.6th (1971), 437 F.2d 429, 430[1], four of the nine members of the hospital’s board of governors were, under the hospital’s charter, responsible to the public, i. e. “ * * * four [were] appointed by the Miami County Commissioners, and the fifth is the Judge of the Common Pleas Court of Miami County. Under applicable case law, this is enough to give the hospital the character of a public agency. * * * ” Ibid. There are no distinguishing factors herein, other than a partial funding by various governmental bodies, to render the defendant hospital a public or state institution. Thérefore, the defendants’ motion for a summary judgment as to any claim of a denial of civil rights hereby is granted. The defendants also moved to dismiss for lack of jurisdiction over the subject matter, Rule 12(b)(1), Federal Rules of Civil Procedure, insofar as the complaint alleges a claim" }, { "docid": "16385384", "title": "", "text": "77 S.Ct. 806, 1 L.Ed.2d 792 (1956), found that discriminatory conduct by institutions of which city or state agencies are trustees was discrimination by the state. The fact that in the present case, the town of Milo only appointed the trustees as opposed to serving on the board itself, does not diminish this nexus between the hospital’s operation and the town. In evaluating a private foundation, four of whose seven man board were appointed by state officers, the Second Circuit concluded: “Even indirect governmental participation in the management of an organization is persuasive evidence of the existence of ‘state action’ where that participation is both substantial and other than neutral . . . [H]ere public officials, named in their ex officio capacities, control the selection of a majority of the governing body, and the Buffalo Foundation appears to have established this procedure for the very purpose of involving the public in its activities. This participation is neither insignificant nor neutral. Therefore, as to the Buffalo Foundation, a finding of ‘state action’ may be warranted even if the court should find only some other significant evidence of ‘state action’ ”. Jackson v. Statler Foundation, 496 F.2d 623, 635 (2d Cir. 1974). Other courts have also held that the appointment by the state of a majority of an institution’s board is either determinative of state action or an important factor in establishing state action. See Meredith v. Allen County War Memorial Hospital, 397 F.2d 33 (6th Cir. 1968); Chiaffitelli v. Dettmer Hospital, Inc., 437 F.2d 429 (6th Cir. 1971); O’Neill v. The Grayson County War Memorial Hospital, 472 F.2d 1140 (6th Cir. 1973) ; Isaacs v. Board of Trustees of Temple University, 385 F.Supp. 473 (E.D.Penn. 1974) ; Braden v. University of Pittsburgh, 392 F.Supp. 118 (W.D.Pa.1975). In Aasum v. Good Samaritan Hospital, 395 F.Supp. 363 (D.Ore.), aff’d, 542 F.2d 792 (9th Cir. 1976), the court concluded that the appointment of three of seven directors of the hospital’s board by city, county and state officials did not make the hospital a state actor, but the court also specifically distinguished Jackson v. Statler" } ]

[ { "docid": "6538327", "title": "", "text": "No. 989, 95th Cong., 2nd Sess. 74 (1978); U.S.Code Cong. & Admin.News 1978, pp. 5787, 5860. Binding precedent in this circuit holds that equitable subordination is proper where three elements are established: (1) that the claimant has engaged in inequitable conduct; (2) that the conduct has injured creditors or given unfair advantage to the claimant; and (3) that subordination of the claim is not inconsistent with the Bankruptcy Code. See In re Mobile Steel, 563 F.2d 692 (5th Cir.1977). The burden and sufficiency of proof required are not uniform in all cases. Where the claimant is an insider or a fiduciary, the trustee bears the burden of presenting material evidence of unfair conduct. See In re Multiponics, 622 F.2d 709, 714 (5th Cir.1980). Once the trustee meets his burden, the claimant then must prove the fairness of his transactions with the debtor or his claim will be subordinated. See id. If the claimant is not an insider or fiduciary, however, the trustee must prove more egregious conduct such as fraud, spoliation or overreaching, and prove it with particularity. See In re Ludwig Honold Mfg. Co., 46 B.R. 125 (Bkrtcy.E.D.Pa.1985) (citing In re W.T. Grant, 699 F.2d 599 (2d Cir.1983)). In light of these distinctions, the trustee’s claim of error on equitable subordination cannot be properly evaluated until the appropriate standard and burden of proof are determined. The correct standard, of course, depends upon if and when appellee became an insider or fiduciary of the debtor. The Bankruptcy Code defines an insider as an officer, director, or “person in control of the debtor” corporation. See § 101(28)(B). A fiduciary, under general corporate theory, includes an officer, director, agent, majority shareholder or a minority shareholder exercising actual control over the corporation. See 12B Fletcher, Cyclopedia Corporations § 5811 at 156-57 (1984). A shareholder has control when she determines corporate policy, whether by personally assuming management responsibility or by selecting management personnel. See Berle, “Control” in Corporate Law, 58 Colum.L.Rev. 1212 (1958). In this case, appellee clearly was an insider and fiduciary as of July 29, 1983, when she became secretary of the" } ]

[ { "docid": "1204491", "title": "", "text": "is an insider. The Code fails to define “person in control” or “control.” Therefore, insider status must be determined on a case by case basis through examination of the totality of the circumstances and the creditor’s degree of involvement in the debtor’s affairs. In Re UVAS Farming Corp., 89 B.R. 889, 892 (Bankr.D.N.M.1988). “[A]n insider can be any entity whose close relationship to the debtor requires careful scrutiny of the questioned transaction.” Id. at 892. More clearly, an insider is one with a close enough relationship with the debtor such that his conduct requires rigorous scrutiny by the courts. In re Fabricators, Inc., 926 F.2d 1458 (5th Cir.1991), citing In re Missionary Baptist Foundation of America, Inc., 818 F.2d 1135, 1144 n. 8 (5th Cir.1987). “Control” is defined by an examination of the facts, and “an opportunity to self-deal or exert more control than is available to other unsecured creditors” is indicative of insider status. Uvas, 89 B.R. at 892. The court in In re F & S Cent. Mfg. Corp., 53 B.R. 842 (Bankr.E.D.N.Y.1985) held that a creditor is in control of a debtor when the creditor has a special relationship with the debtor which can not be characterized as at arms length, and whereby the debtor can be compelled to repay the creditor’s debt. 53 B.R. at 848. Thus, the control such persons exercise need not be legal or absolute. Id. When the creditor has a stranglehold over the debtor, leaving the debtor powerless to act independent of the creditor, the creditor is an insider with control. In re Belco, Inc., 38 B.R. 525 (Bankr.W.D.Okla.1984). However, a debtor’s inferior bargaining position is not enough to make a creditor a control person. Uvas, 89 B.R. at 893. Mere financial power is incidental to debtor-creditor relationships and does not itself amount to control over the debtor. Id. Actual management of a debtor is control. In re Technology for Energy Corp., 56 B.R. 307 (Bankr.E.D.Tenn.1985). Actual management means controlling such things as debtor’s personnel or contract decisions, production schedules, and accounts payable. Id. at 316. Nonetheless, in In re Technology, a" }, { "docid": "22850376", "title": "", "text": "has no fiduciary responsibilities, his claims, while closely scrutinized, should only be subject to subordination on grounds that would apply equally to outsiders. Collier’s fl 510.05[3][a] at 510-14. But cf. In re Beverages Int'l Ltd., 50 B.R. 273, 280 (Bankr.D. Mass.1985) (stating that ”[w]here a claimant is an insider or an affiliate of the debtor, or where the creditor exercises control over or domination of the debtor, his dealings with the debtor are subject to strict scrutiny.”) (emphasis added). In this regard, we note that a reading of the prior panel opinion in this case might allow the inference that the prior panel believed that Huffman was, indeed, a fiduciary of MBFA. See Missionary Baptist, 712 F.2d at 212 n. 4. We believe, however, that a fair reading of that opinion does not support a conclusion that the panel considered or decided that question. Since, as we point out infra, such a determination did not form the basis of the bankruptcy court’s disposition of this case on remand, we need not decide the question whether insider status under the Code necessarily implies the existence of fiduciary responsibility or whether Huffman, for some reason other than his statutorily-defined status as an insider, is a fiduciary. . We note that the bankruptcy court, on remand, limited itself to consideration of Wall’s conduct that related to the transactions involving the Dumas and Crestview homes. The court noted that \"while the full scope of Wall’s dealings could be considered in making the subordination determination those dealings by Wall cannot be imputed to Huffman.” Missionary Baptist, 48 B.R. at 889. With regard to any claim by Wall, the court noted that it would not be necessary to limit the determination of inequitable conduct to the Dumas and Crestview transactions because this court in Mobile Steel stated that inequitable conduct directed against the debtor or its creditors may be sufficient to warrant subordination of a claim even if that conduct was not related to the acquisition or assertion of that claim. Id. n. 4 (citing Mobile Steel, 563 F.2d at 700). The bankruptcy court believed that" }, { "docid": "12973939", "title": "", "text": "applied only in limited circumstances. Holt v. Federal Deposit Insurance Corp. (In re CTS Truss, Inc.), 868 F.2d 146, 148-49 (5th Cir.1989). Moreover, the doctrine is remedial, not penal, and should be applied only to the extent necessary to offset the specific harm that the creditors suffered on account of the inequitable conduct. Trone v. Smith (In re Westgate-California Corp.), 642 F.2d 1174, 1178 (9th Cir.1981); Mobile Steel, 563 F.2d at 701. This Court has enunciated a three-prong test for equitable subordination: (1) the claimant must have engaged in some type of inequitable conduct; (2) the misconduct must have resulted in injury to the creditors or conferred an unfair advantage on the claimant; and (3) equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Code. Mobile Steel, 563 F.2d at 700. In order to justify equitable subordination, the bankruptcy court is required to make specific findings and conclusions with respect to each of the requirements. Missionary Baptist I, 712 F.2d at 212. The burden of proof in this case is clear. The initial burden of going forward with factual evidence to overcome the validity of TFI’s verified proofs of claim rests on the trustee in this case. Once the trustee meets this initial burden, the burden then shifts to TFI to demonstrate its good faith and the fairness of its conduct. See Mobile Steel, 563 F.2d at 701. C. Insider Status A claim arising from the dealings between a debtor and an insider is to be rigorously scrutinized by the courts. In re N & D Properties, Inc., 799 F.2d 726, 731 (11th Cir.1986); see also Wilson v. Huffman (In re Missionary Baptist Foundation of America, Inc.), 818 F.2d 1135, 1144 n. 8 (5th Cir.1987) (“Missionary Baptist II ”). If the claimant is not an insider, then evidence of more egregious conduct such as fraud, spoliation or overreaching is necessary. N & D Properties, 799 F.2d at 731. Accordingly, whether a claimant is an insider of the debtor can be fundamentally important in an equitable subordination case in that it effects the standard of" }, { "docid": "4022475", "title": "", "text": "for equitable subordination must be denied” because there is “no evidence ... how if at all Tarro’s conduct might have been unfair to [other creditors].” The Bankruptcy Court found “no evidence ... to even suggest that the loans by Tarro/Telesis were unfair to other creditors, or that any special inequity resulted from such loans vis-a-vis other creditors.” The Trustee’s argument is two tiered. First, he argues that the Bankruptcy Court made several legal and factual errors in concluding that Tarro was not an “insider” within the meaning of the Bankruptcy Code, 11 U.S.C. § 101(31). That error in turn, he argues, led the Court to apply the wrong legal standard for invoking equitable subordination. Unlike under its rechar-acterization analysis, where the Bankruptcy Court specifically considered the issue under an insider standard, the Trustee argues that the Bankruptcy Court applied the non-insider test, which requires that the “conduct was egregious and severely unfair to other creditors” rather than the insider standard, requiring only unfairness. Because the Court finds that the Bankruptcy Court’s factual finding that there was no unfairness satisfies even the less rigorous insider standard, affirmance of the Bankruptcy Court’s determination is justified. a. Insider Standard A claim arising from the dealings between a debtor and an insider is to be rigorously scrutinized by the courts. In re Fabricators, 926 F.2d at 1465. However, the mere fact of an insider relationship is insufficient to warrant subordination. Id. at 1467. “The reason that transactions of insiders will be closely studied is because such parties usually have greater opportunities for such inequitable conduct, not because the relationship itself is somehow a ground for subordination.” Id. at 1465 (quoting In re Missionary Baptist Foundation, Inc., 818 F.2d 1135, 1144, n. 8 (5th Cir.1987) (Missionary Baptist II)). Such claims are not automatically subordinated because insiders are the persons most interested in restoring and reviving the debtor, and such bona fide efforts should be viewed with approval. See 3 Collier in Bankruptcy, II 510.05[3a] at 510-14. Insider status goes only to determining the standard under which the creditor’s conduct is reviewed. Where a creditor is" }, { "docid": "18798736", "title": "", "text": "the record before us, the total amount distributable from Herby’s estate will approximate 2.1 million dollars. If the claims of the Insiders are allowed a ranking equal to that of the unsecured trade creditors, the Insiders would receive approximately 75% of Herby’s estate. This cannot be permitted. Even with subordination, the harm to the trade creditors will not be completely rectified. Anything less than full subordination would lend judicial approval to the unfair advantage secured by the Insiders. This we will not do. AFFIRMED. . See 11 U.S.C. § 101(31). . As no bank would finance Summit’s acquisition of Herby’s on terms that were acceptable to the Insiders, Summit borrowed the funds from Dun-nam. . Benjamin v. Diamond (In re Mobile Steel Co.), 563 F.2d 692 (5th Cir.1977). . Id. at 699-700. . See also Fabricators, Inc. v. Technical Fabricators, Inc. (In re Fabricators, Inc.), 926 F.2d 1458, 1464 (5th Cir.1991). . Id.; Wilson v. Huffman (In re Missionary Baptist Foundation of America, Inc.), 712 F.2d 206, 209 (5th Cir.1983) (Missionary Baptist I). . In re Fabricators, Inc., 926 F.2d at 1464; In re Consolidated Bancshares, Inc., 785 F.2d 1249, 1252 (5th Cir.1986). . 11 U.S.C. § 510(c)(1). . 124 Cong.Rec.H 11095, H 11113 (Sept. 28, 1978). . Pepper v. Litton, 308 U.S. 295, 305, 60 S.Ct. 238, 244, 84 L.Ed. 281 (1939). . Mobile Steel, 563 F.2d at 700-701; Wilson v. Huffman (In re Missionary Baptist Foundation of America, Inc.), 818 F.2d 1135, 1143-44 (5th Cir.1987) (Missionary Baptist II). . Fabricators, 926 F.2d at 1465; see also Pepper, 308 U.S. at 306, 60 S.Ct. at 244 (subjecting fiduciaries of the debtor to rigorous scrutiny). . Fabricators, 926 F.2d at 1465; see also Pepper, 308 U.S. at 306, 60 S.Ct. at 244. . Fabricators, 926 F.2d at 1466; Missionary Baptist I, 712 F.2d at 210. . Fabricators, 926 F.2d at 1467; Missionary Baptist I, 712 F.2d at 212. . Mobile Steel, 563 F.2d at 703. . Id. . Pepper, 308 U.S. at 309-10, 60 S.Ct. at 246-47. . Fabricators, 926 F.2d at 1469. . 377 F.2d 291 (5th Cir.1967). ." }, { "docid": "12973941", "title": "", "text": "scrutiny a court will apply. TFI argues that Missionary Baptist II stands for the proposition that strict scrutiny is apposite only to fiduciaries. To the contrary, Missionary Baptist II merely states that a finding of inequitable conduct may be different, depending on whether the claimant is an insider or a fiduciary: The reason that transactions of insiders will be closely studied is because such parties usually have greater opportunities for such inequitable conduct, not because the relationship itself is somehow a ground for subordination. If the alter ego or insider has fiduciary responsibilities to other creditors, then claims that might otherwise be allowable as proved may perhaps be subordinated. Missionary Baptist II, 818 F.2d at 1144 n. 8 (citations omitted). The bankruptcy court found that TFI was an affiliate and insider of Fabricators no later than February 2, 1985, the date the parties signed the stock exchange agreement. TFI concedes that it was an insider for the period between February 10, 1985 (the date on which Williams was elected Executive Vice-President and the stock exchange agreement was revised to delete TFI’s escape right), and March 24, 1985 (the date of the release agreement). However, TFI contends that it was not an insider either before February 10 or after March 24. As for the period between February 2 and February 10, TFI argues that it could not have been an insider because the stock exchange was conditional on TFI's satisfaction with Fabricators' financial condition, and TFI did not acquire equitable or legal ownership of any of Fabricators’ assets or stock. In ruling that TFI was an insider of Fabricators within the definition provided in 11 U.S.C. § 101(30) during the period between February 2 and February 10, the bankruptcy court explained that TFI, through Williams, exercised control over Fabricators and the two companies constructively merged their affairs following the February 2 stock exchange agreement. The district court placed emphasis on the aspect of control in finding that TFI was an insider of Fabricators. Indeed, the Bankruptcy Code and case law precedent stand for the proposition that control is a sufficient basis" }, { "docid": "3582109", "title": "", "text": "must have engaged in some type of inequitable conduct; (b) The misconduct must have resulted in injury to the creditors of the debtor or conferred an unfair advantage on the claimant; and (c) Equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy Code. In re Missionary Baptist Found, of Am., Inc., 712 F.2d 206, 212 (5th Cir.1983); In re Mobile Steel Co., 563 F.2d 692, 700 (5th Cir.1977). All three must be proven for a claim to be subordinated. In determining whether the Bank engaged in misconduct, it must first be determined whether the Bank was an “insider” or if it should otherwise be held to a fiduciary’s duty of fair dealing as a nonin-sider. Sleepy Valley, Inc. v. Leisure Valley, Inc. (In re Sleepy Valley, Inc.), 93 B.R. 925, 932-933 (Bankr.W.D.Tex.1988). As noted, the Debtor failed to prove that the Bank was an insider. The primary distinction between subordinating the claims of insiders versus noninsiders lies in the severity of misconduct required to be shown. Pine-tree Partners, Ltd. v. OTR (In re Pinetree Partners, Ltd.), 87 B.R. 481, 488 (Bankr.N. D.Ohio 1988); Anaconda-Ericsson, Inc. v. Hessen (In re Teltronics Services, Inc.), 29 B.R. 139, 169 (Bankr.E.D.N.Y.1983). Where the party is a noninsider, inequitable conduct must be proven with particularity. The degree of misconduct which the plaintiff must show in the case of a noninsider has been variously described as gross misconduct tantamount to fraud, misrepresentation, overreaching or spoliation. In re Osborne, 42 B.R. 988, 996 (W.D.Wis. 1984); Pinetree Partners at 488. Where the claimant is an insider, the claimant’s dealings with the debtor will be subjected to more exacting scrutiny. The evidence adduced at trial is insufficient to establish inequitable conduct under the first prong of the Mobile test. The Debtor further argues that Dudley Montgomery breached his fiduciary duty to the Debtor. Under normal circumstances, the relationship between a debtor and a creditor is an arm’s length transaction. Jefferson Mortgage, 25 B.R. at 970. Furthermore, Teltronics held that a creditor is not a fiduciary of either the debtor or other creditors of" }, { "docid": "12973946", "title": "", "text": "the bankruptcy court to support it, this Court is unable to accept the trustee’s argument. Since TFI concedes that it was an insider until the release agreement was executed, this Court can endorse the use of rigorous scrutiny only for TFI’s conduct until March 24. Our inquiry does not end simply by finding an insider relationship. The cases are clear that the mere fact of an insider relationship is insufficient to warrant subordination, Missionary Baptist I, 712 F.2d at 210. The insider status goes only to establishing the standard to apply in reviewing the insider’s conduct. In order to equitably subordinate a creditor’s claim, the creditor-insider must actually use its power to control to its own advantage or to the other creditors’ detriment. See Comstock v. Group of Institutional Investors, 335 U.S. 211, 229, 68 S.Ct. 1454, 1463, 92 L.Ed. 1911 (1948). With this in mind, we address next the issue of inequitable conduct. D. Inequitable Conduct It is difficult to define the boundaries of inequitable conduct under the first part of the three-prong Mobile Steel test, but there have been recognized generally three categories of misconduct which may constitute inequitable conduct: (1) fraud, illegality, and breach of fiduciary duties; (2) undercapitalization; or (3) claimant’s use of the debtor as a mere instrumentality or alter ego. Missionary Baptist I, 712 F.2d at 212. This Court has made clear that the claimant’s misconduct need not relate directly to the acquisition or assertion of its claim. Mobile Steel, 563 F.2d at 700. In the instant case, the bankruptcy court evidently found that TFI had engaged in inequitable conduct within the first two categories. 1. Fraud, Illegality and Breach of Fiduciary Duty Within the category of fraud, illegality and breach of fiduciary duty, the bankruptcy court found that TFI had acted inequitably in four ways. We will discuss each of these in turn. a. Inducing Other Creditors to Extend Credit The bankruptcy court found that TFI acted inequitably by causing other creditors to extend new credit to Fabricators and to abstain from collecting on past debts when TFI knew or should have known" }, { "docid": "1203045", "title": "", "text": "this Court does not find error in the bankruptcy court’s failure to address the Wages opinion. IV. Inequitable Conduct As previously noted, the first prong of the Mobile Steel test is that the claimant engage in some type of inequitable conduct. From the facts before it, the bankruptcy court found TFI guilty of inequitable conduct in the following ways: 1. Making loans to Fabricators on a secured basis at a time at which the bankruptcy court determined that Fabricators was undercapitalized and at a time when TFI’s motivation in advancing that money was to acquire control of Fabricators in order to realize a projected $2,000,000 profit on contracts in progress. 2. Causing creditors to extend new credit or to abstain from collection measures when TFI knew or should have known that Fabricators was in failing financial circumstances. 3. Interfering with the completion of Fabricators’ contract with Nicholson Engineering Systems to gain preferential payment and a release from TFI's liability to O’Neal Steel Corporation. 4. Presenting a fraudulent resolution in order to open a bank account for deposit of Fabricators’ receivables beyond the reach of creditors. 5.Obtaining a lien upon Fabricators’ assets to secure capital contributions which shifted the risk of loss from TFI to the creditors of Fabricators. The court’s ruling on the issue of inequitable conduct was based in large part upon its finding that TFI was an insider. The determination is crucial because the conduct of a fiduciary is subject to special scrutiny by the court and implicates a higher degree of fidelity than the conduct of an unrelated third party. Mobile Steel, supra. However, while the conduct of an insider is subject to rigorous scrutiny, it is not sufficient for the trustee merely to establish insider status in order to invoke equitable subordination. Matter of Missionary Baptist Foundation II, 818 F.2d at 1143. The trustee must prove inequitable or unfair conduct, injury to other creditors, and consistency with the bankruptcy code. In re Medical Equities, Inc., 83 B.R. 954 (Bkrtcy.S.D.Ohio, 1987); Matter of Missionary Baptist Foundation II, supra. In re N & D Properties, Inc., 799 F.2d" }, { "docid": "4768636", "title": "", "text": "term ‘principles of equitable subordination’ follow existing case law and leave to the court development of this principle.” 124 Cong.Rec. H. 11,095 (Sept. 28, 1978). A three pronged test has been developed for a court to determine whether to exercise its power of equitable subordination: (i) The claimant must have engaged in some type of inequitable conduct. (ii) The misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant. (iii) Equitable subordination of the claim must not be inconsistent with the provisions of the Bankruptcy [Code]. Benjamin v. Diamond (In re Mobil Steel Co), 563 F.2d 692, 700 (5th Cir.1977). Under the first element, three general categories of inequitable conduct have been recognized: (1) fraud, illegality and breach of fiduciary duties; (2) substitution of debt for capital when a company is undercapital-ized; and (3) the claimant’s use of the debtor as its alter ego or instrumentality. Wilson v. Huffman (In re Missionary Baptist Foundation of America), 712 F.2d 206, 212 (5th Cir.1983); In re Beverages International, Ltd., 50 B.R. 273, 281 (Bankr.D.Mass 1985). The burden of proof varies, depending on the status of the claimant. “Where the claimant is an insider or a fiduciary, the Trustee bears the burden of presenting material evidence of unfair conduct.” Estes v. N & D Properties, Inc. (In re N & D Properties, Inc.), 799 F.2d 726, 731 (11th Cir.1986); Machinery Rental, Inc. v. Herpel (In re Multiponics, Inc.), 622 F.2d 709, 714 (5th Cir.1980). Once this burden is met, the burden shifts to the claimant to prove the fairness of his conduct vis-a-vis the debtor and the other creditors. In re N & D Properties, Inc., supra. “If the claimant is not an insider or fiduciary, however, the Trustee must prove more egregious conduct such as fraud, spoliation or overreaching, and prove it with particularity.” Id. The Code defines an insider as an officer, director or person in control of the debtor. 11 U.S.C. § 101(30)(B). This definition, however, is merely illustrative, and the term “must be applied flexibly on a case by" }, { "docid": "15571225", "title": "", "text": "Rumbaugh Assocs., Inc., 114 B.R. 418 (E.D.Pa.1990); In re F.A. Potts & Co., Inc., 115 B.R. 66 (E.D.Pa.1990). Although there is general acceptance of the Mobile Steel three-part test, courts have struggled to define the precise conduct that constitutes grounds for equitable subordination. Generally, there are three eatego- ríes of conduct that satisfy the first prong of the three-part test: (1) fraud, illegality, or breach of fiduciary duties; (2) undercapitali-zation; and (3) claimant’s use of the debtor as a mere instrumentality or alter ego. Clark Pipe, 893 F.2d at 699, citing In re Missionary Baptist Found., 712 F.2d 206 (5th Cir.1983); see also In re Herby’s Foods, Inc., 2 F.3d 128, 131 (5th Cir.1993); In re CTS Truss, Inc., 868 F.2d at 148-49. Further, in applying equitable subordination principles, the courts differentiate between insider and non-insider claimants. As stated in In re Teltronics Servs., Inc., 29 B.R. 139, 169 (Bankr.E.D.N.Y.1983): The primary distinctions between subordinating the claims of insiders versus those of non-insiders lie in the severity of misconduct required to be shown, and the degree to which the court will scrutinize the claimant’s actions toward the debtor or its creditors. In In re N & D Properties, Inc., 799 F.2d 726, 731 (11th Cir.1986), the court discussed the differences in the burden of proof in insider and non-insider cases: The burden and sufficiency of proof required are not uniform in all cases. Where the claimant is an insider or a fiduciary, the trustee bears the burden of presenting material evidence of unfair conduct. Once the trustee meets his burden, the claimant then must prove the fairness of his transactions with the debtor or his claim will be subordinated. If the claimant is not an insider or fiduciary, however, the trustee must prove more egregious conduct such as fraud, spoliation or overreaching, and prove it with particularity. (citations omitted). Accord In re Osborne, 42 B.R. at 996 (“Once an objectant in an insider case supports allegations of impropriety with a substantial factual showing, the burden shifts to the insider creditor to prove the good faith and inherent fairness of its" }, { "docid": "11715618", "title": "", "text": "required are not uniform in all eases. Where the claimant is an insider or a fiduciary, the trustee bears the burden of presenting material evidence of unfair conduct. Once the trustee meets his burden, the claimant then must prove the fairness of his transactions with the debtor or his claim will be equitably subordinated. If the claimant is not an insider or fiduciary, the trustee must prove more egregious conduct such as fraud, spoilation, or overreaching and prove it with particularity. In re N & D Properties, Inc., 799 F.2d 726, 731 (11th Cir.1986). Insider status alone, however, is insufficient to warrant subordination. In re Fabricators, Inc., 926 F.2d 1458, 1467 (5th Cir.1991). The question of whether a claimant is an insider is a question of fact which will only be reversed if clearly erroneous. Fabricators, Inc., 926 F.2d at 1466; Paolella & Sons, 161 B.R. at 118. Section 11 U.S.C. § 101(31) defines insider to include: (B) if the debtor is a corporation— (i) director of the debtor; (ii) officer of the debtor; (iii) person in control of the debtor; (iv) partnership in which the partner is a general partner. (v) general partner of the debtor; or (vi) relative of a general partner, director, officer, or person in control of the debtor. Id. The term “person” includes a corporation. 11 U.S.C. § 101(41). The Bankruptcy Court found that Heisley was an insider. This finding is clearly correct considering that Heisley was the chairman of the board and chief executive officer of N/S during the period of the inequitable conduct of which the appellants are complaining. Based on this finding the Bankruptcy Court went on to “assume, for purposes of our discussion, that we can collapse the Defendants and Heisley into a single entity which is, indeed, an insider of both entities.” Nutri/System, 169 B.R. at 866. Although the Court doubts the efficacy of collapsing the appellees into one entity, it will do so for purposes of this discussion because, notwithstanding the stricter scrutiny applied to insiders, the Bankruptcy Court’s finding that the appellants failed to prove inequitable conduct was" }, { "docid": "12973940", "title": "", "text": "is clear. The initial burden of going forward with factual evidence to overcome the validity of TFI’s verified proofs of claim rests on the trustee in this case. Once the trustee meets this initial burden, the burden then shifts to TFI to demonstrate its good faith and the fairness of its conduct. See Mobile Steel, 563 F.2d at 701. C. Insider Status A claim arising from the dealings between a debtor and an insider is to be rigorously scrutinized by the courts. In re N & D Properties, Inc., 799 F.2d 726, 731 (11th Cir.1986); see also Wilson v. Huffman (In re Missionary Baptist Foundation of America, Inc.), 818 F.2d 1135, 1144 n. 8 (5th Cir.1987) (“Missionary Baptist II ”). If the claimant is not an insider, then evidence of more egregious conduct such as fraud, spoliation or overreaching is necessary. N & D Properties, 799 F.2d at 731. Accordingly, whether a claimant is an insider of the debtor can be fundamentally important in an equitable subordination case in that it effects the standard of scrutiny a court will apply. TFI argues that Missionary Baptist II stands for the proposition that strict scrutiny is apposite only to fiduciaries. To the contrary, Missionary Baptist II merely states that a finding of inequitable conduct may be different, depending on whether the claimant is an insider or a fiduciary: The reason that transactions of insiders will be closely studied is because such parties usually have greater opportunities for such inequitable conduct, not because the relationship itself is somehow a ground for subordination. If the alter ego or insider has fiduciary responsibilities to other creditors, then claims that might otherwise be allowable as proved may perhaps be subordinated. Missionary Baptist II, 818 F.2d at 1144 n. 8 (citations omitted). The bankruptcy court found that TFI was an affiliate and insider of Fabricators no later than February 2, 1985, the date the parties signed the stock exchange agreement. TFI concedes that it was an insider for the period between February 10, 1985 (the date on which Williams was elected Executive Vice-President and the stock exchange" }, { "docid": "4541785", "title": "", "text": "or engaged in unfair conduct, at which point the burden will shift to the respondent to prove the good faith and fairness of its actions. In re Fabricators, Inc., 926 F.2d 1458, 1465 (5th Cir.1991); Bellanca Aircraft, supra, 850 F.2d at 1282 n. 13; N & D Properties, supra, 799 F.2d at 731; and Osborne, supra, 42 B.R. at 996. On the other hand, insider status alone is not sufficient grounds to warrant subordination. See, e.g., Beverages International, supra, 50 B.R. at 281. Accord, 3 COLLIER ON BANKRUPTCY, ¶ 510.05[3][a], at 510-12 to 510-15 (15th ed. 1993). The Defendants argue that the Heieo Defendants, and specifically NSI, were not insiders of the Debtors. Because Heisley became the chairman of the board and chief executive officer of N/S shortly after the involuntary petition was filed, and because the Landlords’ administrative rent claims began to accrue shortly prior thereto, it is clear that Heisley, at least, was an insider during much of the time when the alleged inequitable conduct occurred. Thus, we will assume, for the purposes of our discussion, that we can collapse the Defendants and Heisley into a single entity which is, indeed, an insider of both Debtors. But see page 863 n. 3 supra. Notwithstanding this assumption, and the stricter scrutiny which accompanies it, we conclude that the Defendants have not treated the Landlords unfairly, and we will therefore not subordinate the claims of the Heico Defendants to the administrative rent claims of the Landlords. Courts have identified three general categories of inequitable conduct which warrant the equitable subordination of a creditor’s claim: (1) fraud, illegality, and breach of fiduciary duties; (2) undercapitali-zation; or (3) a creditor’s use of debtor as an alter ego or instrumentality. See Fabricators, supra, 926 F.2d at 1467; In re Missionary Baptist Foundation of America, Inc., 712 F.2d 206, 212 (5th Cir.1983); and Beverages International, supra, 50 B.R. at 281. Although these forms of inequity certainly could be perpetrated post-petition, in the course of a bankruptcy ease, our research has not located one case in which the post-petition conduct of a claimant was challenged" }, { "docid": "1996620", "title": "", "text": "the monies were advanced on the basis of a merger agreement wherein TFI became an insider within the contemplation of Section 101. TFI and Fabricators became affiliates and insiders no later than February 2,1985, by virtue of their written agreement for TFI to acquire all of the shares in Fabricators, and the two companies merging of their affairs shortly thereafter under Williams’ direction and control. TFI and Fabricators constructively merged their affairs following the February 2, 1985, stock exchange agreement. Finding TFI to be an insider prior to February 10, is not required to subordinate its secured claim because the security interest was not perfected until at least February 18, when TFI was admittedly an insider. As pointed out by the Fifth Circuit: A claim arising from the dealings between a debtor and its fiduciaries is to be rigorously scrutinized by the courts, but the mere fact of the fiduciary relationship is insufficient to warrant subordination. See, e.g., Missionary Baptist, 712 F.2d at 212 (citing Mobile Steel and Mul-tiponics.) “Upon the trustee’s submission of sufficient evidence to overcome the prima facie showing, the claimant is obliged to prove his good faith and fairness in the dealings. It is at this junture that the fiduciary’s claim is subject to the probing light of judicial inquiry.” Missionary Baptist, 712 F.2d at 212; see Mobile Steel, 563 F2d. at 701-02. In re Missionary Baptist Foundation of America, 818 F.2d 1135 (1987). With this in mind, the Court now considers the test for subordination as set forth in Mobile Steel, supra. The case law has established guidelines for determining whether a claimant’s conduct has been inequitable so as to justify subordinating its claim. Generally, a claimant’s conduct will be deemed inequitable if the claim arises out of one of the following three categories of misconduct: (1) fraud, illegality, breach of fiduciary duty; (2) undercapitalization; or (3) use of the debtor as a mere instrumentality or alter ego. Missionary Baptist Foundation of America, Inc., 712 F.2d 206 (5th Cir., 1983). In determining whether an entity was undercapitalized, the Fifth Circuit provides the following standard: [W]e" }, { "docid": "1203046", "title": "", "text": "for deposit of Fabricators’ receivables beyond the reach of creditors. 5.Obtaining a lien upon Fabricators’ assets to secure capital contributions which shifted the risk of loss from TFI to the creditors of Fabricators. The court’s ruling on the issue of inequitable conduct was based in large part upon its finding that TFI was an insider. The determination is crucial because the conduct of a fiduciary is subject to special scrutiny by the court and implicates a higher degree of fidelity than the conduct of an unrelated third party. Mobile Steel, supra. However, while the conduct of an insider is subject to rigorous scrutiny, it is not sufficient for the trustee merely to establish insider status in order to invoke equitable subordination. Matter of Missionary Baptist Foundation II, 818 F.2d at 1143. The trustee must prove inequitable or unfair conduct, injury to other creditors, and consistency with the bankruptcy code. In re Medical Equities, Inc., 83 B.R. 954 (Bkrtcy.S.D.Ohio, 1987); Matter of Missionary Baptist Foundation II, supra. In re N & D Properties, Inc., 799 F.2d 726 (11th Cir.1986). On the other hand, if the claimant is not an insider, the Trustee must prove more egregious conduct such as fraud, spoliation, or overreaching. N & D Properties, 799 F.2d at 731. In the case at bar, the bankruptcy court looked to the definition of “insider” found at 11 U.S.C. Section 101(30) which provides: (30) “insider” includes: (B) if the debtor is a corporation— (i) director of the debtor; (ii) officer of the debtor; (iii) person in control of the debtor; (iv) partnership in which the debtor is a general partner; (v) general partner of the debtor; or (vi) relative of a general partner, director, officer, or person in control of the debtor; ... The court then found that TFI exercised control over the debtor as of February 2, 1985. Specifically, the court stated: TFI and Fabricators became affiliates and insiders no later than February 2, 1985, by virtue of their written agreement for TFI to acquire all of the shares in Fabricators, and the two companies merging of their affairs shortly" }, { "docid": "4390834", "title": "", "text": "debtor and an insider is to be rigorously scrutinized by the courts.”) (citations omitted); Eufaula, 266 B.R. 483, 489 (“If the claimant is an insider or a fiduciary, the party seeking equitable subordination need only show ‘unfair’ conduct.”) (citing Estes v. N & D Properties, Inc. (In re N & D Properties, Inc.), 799 F.2d 726, 731 (11th Cir.1986)). Closer scrutiny for insiders is warranted “ ‘because such parties usually have greater opportunities for such inequi table conduct, not because the relationship itself is somehow grounds for subordination.’ ” Fabricators, 926 F.2d at 1465 (quoting Wilson v. Huffman (In re Missionary Baptist Foundation of America), 818 F.2d 1135, 1144 n. 8 (5th Cir.1987)). “Insider” is defined in 11 U.S.C. § 101(31), which relevant portion provides: (B) if the debtor is a corporation, (i) director of the debtor; (ii) officer of the debtor; (iii) person in control of the debtor; (iv) partnership in which the debtor is a general partner; (v) general partner of the debtor; or (vi) relative or a general partner, director, officer, or person in control of the debtor. 11 U.S.C. § 101(31)(B). “Shareholder of the debtor” is not one of the enumerated categories of insiders as defined by the bankruptcy code; however, the list of insider relationships contained in 11 U.S.C. § 101(31) is not exhaustive. See In re Armstrong, 231 B.R. 746, 749 (Bankr.E.D.Ark.1999); In re Century Investment Fund VII Ltd. Partnership, 96 B.R. 884, 892 (Bankr.E.D.Wis.1989). A shareholder who exercises control over the debtor can be considered an insider. See Fabricators, 926 F.2d at 1465 (noting that control of the debtor is sufficient for insider status, even absent other formal relationships, such as shareholder status). The undisputed facts show that, at the time of the transaction, Tullis-Dickerson already held a significant percentage of the outstanding shares of the Debtor. See Exhibit 6 to Memorandum Brief. And a principal of Tullis-Dickerson was a member of the Debtor’s board of directors. See Debtor’s Disclosure Statement. These factors are sufficient to confer “insider” status on Tullis-Dickerson. However, insider status by itself is insufficient grounds for equitable subordination. Mid-Town" }, { "docid": "4390833", "title": "", "text": "use of the debtor as an alter ego for the benefit of a claimant.’ ” In re Eufaula Industrial Authority, 266 B.R. 483, 489 (10th Cir. BAP 2001) (quoting 80 Nassau Assocs. v. Crossland Fed. Sav. Bank (In re 80 Nassau Assocs.), 169 B.R. 832, 838 (Bankr.S.D.N.Y.1994)). It is insufficient for the objecting party simply to allege that the claimant engaged in “inequitable conduct,” specific facts must be alleged describing the type of misconduct that fits within these categories. Id. (citing In re After Six, Inc., 177 B.R. 219, 231-232 (Bankr.E.D.Pa.1995)). When the creditor is an insider, the transaction should be given greater scrutiny. In re Mid-Town Produce Terminal, Inc., 599 F.2d 389, 392 (10th Cir. 1979) (“Because there is incentive and opportunity to take advantage, dominant shareholders and other insiders’ loans in a bankruptcy situation are subject to special scrutiny.”) (citing Pepper v. Litton, 308 U.S. 295, 306-307, 60 S.Ct. 238, 245, 84 L.Ed. 281 (1939)); In re Fabricators, Inc., 926 F.2d 1458, 1465 (5th Cir.1991) (“A claim arising from the dealings between a debtor and an insider is to be rigorously scrutinized by the courts.”) (citations omitted); Eufaula, 266 B.R. 483, 489 (“If the claimant is an insider or a fiduciary, the party seeking equitable subordination need only show ‘unfair’ conduct.”) (citing Estes v. N & D Properties, Inc. (In re N & D Properties, Inc.), 799 F.2d 726, 731 (11th Cir.1986)). Closer scrutiny for insiders is warranted “ ‘because such parties usually have greater opportunities for such inequi table conduct, not because the relationship itself is somehow grounds for subordination.’ ” Fabricators, 926 F.2d at 1465 (quoting Wilson v. Huffman (In re Missionary Baptist Foundation of America), 818 F.2d 1135, 1144 n. 8 (5th Cir.1987)). “Insider” is defined in 11 U.S.C. § 101(31), which relevant portion provides: (B) if the debtor is a corporation, (i) director of the debtor; (ii) officer of the debtor; (iii) person in control of the debtor; (iv) partnership in which the debtor is a general partner; (v) general partner of the debtor; or (vi) relative or a general partner, director, officer, or" }, { "docid": "4022476", "title": "", "text": "was no unfairness satisfies even the less rigorous insider standard, affirmance of the Bankruptcy Court’s determination is justified. a. Insider Standard A claim arising from the dealings between a debtor and an insider is to be rigorously scrutinized by the courts. In re Fabricators, 926 F.2d at 1465. However, the mere fact of an insider relationship is insufficient to warrant subordination. Id. at 1467. “The reason that transactions of insiders will be closely studied is because such parties usually have greater opportunities for such inequitable conduct, not because the relationship itself is somehow a ground for subordination.” Id. at 1465 (quoting In re Missionary Baptist Foundation, Inc., 818 F.2d 1135, 1144, n. 8 (5th Cir.1987) (Missionary Baptist II)). Such claims are not automatically subordinated because insiders are the persons most interested in restoring and reviving the debtor, and such bona fide efforts should be viewed with approval. See 3 Collier in Bankruptcy, II 510.05[3a] at 510-14. Insider status goes only to determining the standard under which the creditor’s conduct is reviewed. Where a creditor is a non-insider, the trustee must show that the creditor’s conduct was “egregious and severely unfair in relation to other creditors.” In re Giorgio, 862 F.2d at 939. In the context of insiders, the standard is one of simple unfairness. Furthermore, the burden of proof shifts in insider transactions. Once the trustee has met his initial burden of going forward with factual evidence to overcome the validity of the claimant’s proof of claim, the burden shifts to the claimant/insider to demonstrate its good faith and the fairness of its conduct. Fabricators, 926 F.2d at 1465. In order to shift the burden, the Trustee must provide a “substantial factual basis to support its allegation of impropriety.” Mobile Steel, 563 F.2d at 701. b. Inequitable Conduct The Bankruptcy Court refused to equitably subordinate Tarro’s claim because it found that there was no evidence of inequity in Tarro’s conduct. Because the Trustee failed to present any evidence of impropriety, equitable subordination was not appropriate. The Trustee appeals this determination with an elaborate discussion of the facts supporting his contention" }, { "docid": "17702536", "title": "", "text": "test, a claim is equitably subordinated if there is a showing by a preponderance of the evidence that (i) the claim holder engaged in some type of inequitable conduct, (ii) which injured the creditors of the debtor or conferred an unfair advantage on the claimant, and (iii) equitable subordination of the claim is not inconsistent with the provisions of the Bankruptcy [Code]. Id. at 700. See also In re Lifschultz Fast Freight, 132 F.3d 339, 344 (7th Cir.1997). “Equitable subordination is an unusual remedy which should be applied only' in limited circumstances.” Fabricators, Inc. v. Technical Fabricators, Inc. (In re Fabricators, Inc.), 926 F.2d 1458, 1464 (5th Cir.1991). “A claim arising from the dealings between a debtor and an insider is to be rigorously scrutinized by the courts.” Id. at 1465 (citations omitted). Nonetheless, “the mere fact of an insider relationship is insufficient to warrant subordination.” Id. at 1467 (citing Wilson v. Huffman (In re Missionary Baptist Foundation of America, Inc.), 712 F.2d 206, 210 (5th Cir.1983)). The initial burden of going forward with factual evidence to overcome the validity of the claimant’s proof of claim rests on the trustee or a fiduciary. Once the initial burden is met, it then shifts to the claimant “to demonstrate its good faith and the fairness of its conduct.” Id. at 212 (citing Mobile Steel, 563 F.2d at 701). Applying the “rigorous scrutiny” standard to review the LeRouxs’ conduct, we will now examine whether the LeRouxs engaged in misconduct which injured the Debtor’s creditors or conferred an unfair advantage on themselves. Three categories of misconduct have generally been recognized to constitute inequitable conduct: “(1) fraud, illegality, breach of fiduciary duties; (2) un-dercapitalization; and (3) claimant’s use of the debtor as a mere instrumentality or alter ego.” Fabricators, 926 F.2d at 1467; see also Lifschultz, 132 F.3d at 344 (quoting In re Missionary Baptist Foundation of America, 712 F.2d 206, 212 (5th Cir.1983)). Undercapitalization of the debtor alone, absent misconduct by the insider, is insufficient to justify equitable subordination of an insider’s debt claim. Id. at 343. The Debtor alleges that the LeRouxs’ claim" } ]

[ { "docid": "13521366", "title": "", "text": "be construed by the laws of the United States and no.t by the laws of Great Britain, if they differ in any particular.” In Williston on Contracts, vol. 3, § 1792, the law is correctly stated as follows: “The legality of a contract depends upon the law of the place where it is made. If the contract was illegal (as distinguished from merely unenforceable) where made it is invalid everywhere, and if valid where made it is generally enforceable everywhere. That latter rule, however, is qualified by the doctrine that no state will enforce a contract though valid where made, if its enforcement is contrary to the policy of the forum.” In Wharton’s Conflict of Laws (3d Ed.) vol. 2, § 471c, p. 1076, it is said that “it is, however, a well-established rule in the federal courts that a stipulation exempting the carrier from liability for loss or injury due to negligence is contrary to the public policy of the United States, and will not be enforced, even if valid by the law of the state or of a foreign country where the contract was made and the transportation commenced, or by the law which the contract expressly designates as the governing law. An exception has been made, however, where the loss or damage complained of occurred within the foreign state or country.” The exception to the rule referred to is supported by The Trinacria (D. C.) 42 F. 863, and Baetjer v. La Compagnie (D. C.) 59 F. 789. The decisions which support the exception were both rendered in the District Court for the Southern district of New York, one decided in 1890, and the other in 1894 by Judge Brown. In the Trinaeria Case the bill of lading was issued at Genoa and provided for the carriage of goods in a British vessel to New York. It exempted from liability arising from negligence. The exception was valid both by English and Italian law. In sustaining’ the exception Judge Brown said: “As the contract was made in Italy by an English master of an English ship, and by" } ]

[ { "docid": "14737154", "title": "", "text": "Calvin Klein in the amount of $101,542.62, the full value of the lost shipment. While we agree with the district court that gross negligence does not void a limitation of liability provision, we find that the parties agreed that such a provision was in effect for this carriage. For the reasons below, we reverse and remand. DISCUSSION On this appeal, Trylon contends that the district court incorrectly held that no agreement existed as to the limitation of liability. Trylon further argues that the limitation is enforceable despite its conceded gross negligence. Calvin Klein contends that the district court correctly held that, under New York law, no agreement existed between the parties as to a liability limit for this stolen shipment. Alternatively, Calvin Klein points to two different public policy reasons why the limitation provision, if there is one, is unenforceable. First, Trylon’s gross negligence resulted in the loss, and public policy prohibits the enforcement of an exculpatory provision which attempts to relieve the contracting party of liability under such circumstances. Second, the $50 limit was unreasonably low and therefore unenforceable. We address these contentions. A common carrier, see N.Y. Transp. Law § 2(8) (McKinney Supp.1989), under New York law is strictly liable for the loss of goods in its custody. “Where the loss is not due to the excepted causes [that is, act of God or public enemy, inherent nature of goods, or shipper’s fault], it is immaterial whether the carrier was negligent or not_” American Mach. & Foundry Co. v. Santini Bros., 54 Misc.2d 886, 889, 283 N.Y.S.2d 574, 576 (Sup.Ct.1967) (quoting 13 C.J.S. Carriers § 71, at 132 (1939)), aff'd mem., 46 A.D.2d 844, 362 N.Y.S.2d 402 (1st Dep’t 1974). Even in the case of loss from theft by third parties, liability may be imposed upon a negligent common carrier. F.A. Straus & Co. v. Canadian Pac. Ry., 254 N.Y. 407, 173 N.E. 564 (1930). A shipper and a common carrier may contract to limit the carrier’s liability in cases of loss to an amount agreed to by the parties, 17 N.Y.Jur.2d Carriers § 294 (1981), so long" }, { "docid": "6746654", "title": "", "text": "against the original plaintiff unless the plaintiff amends his complaint to include direct claims against the third-party defendant (New York Civil Practice Act, § 193-a, subd. 3). The claim of the third-party defendants is stricken and dismissed without prejudice. We come then to the plaintiff’s motion to strike the first affirmative defense to plaintiff’s complaint. Sauter’s defense is based upon the arbitration provision of the contract, which provides that arbitration shall be a condition precedent to< a legal action Sauter urges that by virtue of plaintiff’s failure to resort to arbitration within the time specified therefor, plaintiff is barred from instituting this action. We must test the soundness of Sauter’s defense against the requirements of the law of New York (Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188). An agreement which provides that arbitration shall be a condition precedent to legal action is valid in New York State (The President, etc. of D. & H. Canal Co. v. Pennsylvania Coal Co., 50 N.Y. 250, at page 266). Service of an answer without asserting the affirma tive defense of an arbitration agreement is a waiver thereof (Zimmerman v. Cohen, 236 N.Y. 15, 139 N.E. 764; Syracuse Plaster Co. v. Agostini Building Corp., 169 Misc. 564, 7 N.Y.S.2d 897) and when the agreement is pleaded it rebuts any inference of waiver that would otherwise be drawn from the mere service of an answer (Hosiery Manufacturers Corp. v. Goldston, 238 N.Y. 22, 143 N.E. 779). In spite of this, it is not permissible to employ an affirmative defense for the purpose of asserting the agreement, since § 1451 of the New York Civil Practice Act provides the third-party defendants with an exclusive remedy (American Reserve Insurance Co. v. China Insurance Co., 297 N.Y. 322 at pages 326-327, 79 N.E.2d 425, 427, wherein Judge Conway wrote: “We think that the stay provided for in this section is the exclusive remedy for a person against whom an action has been brought in violation of an agreement to arbitrate. The Legislature has provided a means of enforcing that which was" }, { "docid": "22109273", "title": "", "text": "is without power to legalize such a provision here. For, applying the rationale of the Croninger case, were it not for Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, the Federal common law rule would invalidate the exculpatory provision here, in the absence of a state statute on the subject, since this suit was brought in a Federal court. However, the Croninger doctrine, as modified by Erie v. Tompkins, supra, requires the Federal courts sitting in New York to apply the New York decisional rules, including the New York “choice of law” rules. The highest court of New York has held that, as a matter of public policy, th.e New York courts will not recognize the law of any other state which would validate a provision making a carrier immune from liability for its own negligence. This rule of New York public policy is binding upon a Federal court, sitting in New York, in a diversity case, Griffin v. MeCoaeh, 313 U.S. 498, 61 S.Ct. 1023, 85 L.Ed. 1481. It would follow, then, that the exculpatory provision here is without validity. It is possible, however, that the Erie-Tompkins doctrine does not apply to cases involving tariffs filed with the Board under the Civil Aeronautics Act, on the theory that Congress, when it enacted that legislation, may be deemed to have intended that uniform rules should govern interstate air carriage. If that is so, it is inconceivable that Congress intended, merely by remaining silent, to authorize the 'Board to adopt a policy flatly at odds with the hitherto uniform Federal policy, frequently announced by the Supreme Court in decisions involving all sorts of transportation, and ultimately expressed by Congress in statutes governing carriers by rail, water carriers, and motor car riers. I do not see why the reasons for that rule — i. e., the encouragement of care on the part of the carriers, and the protection of shippers and passengers from imposition by the carriers — do not apply with equal force to transportation by air. I would suppose that for those reasons, if" }, { "docid": "15101716", "title": "", "text": "notified of the accident, investigated it, and with reasonable promptness denied liability by reason of the exclusion clause of the policy. Thereafter and shortly before the trial of the Myers suit against the Bronart Company in Ohio, it advised the insurer that by reason of its financial condition it was unable to incur the expense of actually defending the suit and suggested that the insurer should take over the defense. And this the Company did, but only after the execution of a non-waiver agreement by the Bronart Company. In a carefully considered opinion the district judge held that the policy did not cover the injuries sustained by the Myers, by reason of the exclusion clause; that the plaintiff was entitled to a declaratory decree to that effect; and that the defendants should be enjoined from prosecuting their claims against the insurer. We are of the opinion that this conclusion was correct. In approaching the construction of the language of the policy, the first problem lies in the field of conflict of laws. The case was tried in a federal district court for the State of North Carolina, where the jurisdiction was based on diverse citizenship alone; but the proof shows that the policy was countersigned and delivered and first took effect in the State of Ohio. In such a situation the question might arise as to whether, for the interpretation of the policy, we should apply the applicable doctrine of conflict of laws as determined by the federal courts or by the decisions of the North Carolina court. A similar question was noted but not decided by the Supreme Court in Ruhlin v. New York Life Ins. Co., 304 U.S. 202, 208, 58 S.Ct. 860, 862, 82 L.Ed.. 1290 (decided shortly after Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487) where, in note 2, it was said: “Under the general doctrine the interpretation of an insurance contract depends on the law of the place where the policy is delivered. Mutual Life Ins. Co. v. Johnson, 293 U.S. 335, at page 339," }, { "docid": "8717746", "title": "", "text": "Export, which operation was solely that of defendant Wyle without any participation of American Export; that for the injuries sustained by plaintiff, defendant Wyle is primarily liable, because such injury was caused by the negligence of Wyle in providing the lighter and of its servants in the manner in which the coal was handled, and without any negligence on the part of American Export. Finally it is averred that defendant Wyle violated its duty to plaintiff to use due care, and its duty to so conduct itself as not to cause loss or damage to defendant American Export. In the event that American Export is held liable to the plaintiff, it seeks judgment over against Wyle. I think the cross-claim states a cause of action and should be sustained. Although as a general rule at common law there is no right to contribution between wrongdoers, there are exceptions to the rule. Erie R. R. Co. v. Erie & W. Transportation Co., 204 U.S. 220, 225, 27 S.Ct. 246, 51 L.Ed. 450; New York & P. R. S. S. Co. v. Lee’s Lighters, D.C., 48 F.2d 372, 375. Since Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, the state law is determinative of the right to indemnity or contribution. Kravas v. Great Atlantic & Pacific Tea Co., D.C., 28 F.Supp. 66. As to matters of pleading the Federal Rules control, ibid. It is the law of New York that one is liable for his negligence not only to the person injured, but also to one who without fault has been held responsible for that injury. Dunn v. Uvalde Asphalt Paving Co., 175 N.Y. 214, 67 N.E. 439; Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N.Y. 461, 31 N.E. 987, 30 Am.St.Rep. 685. The recent application of the doctrine in Westchester Lighting Co. v. Westchester County Small Estates Corp., 278 N.Y. 175, 15 N.E.2d 567, points the way to the decision in this case. And see Schubert v. August Schubert Wagon Co., 249 N.Y. 253, 257, 164 N.E. 42, 64 A.L.R." }, { "docid": "22961445", "title": "", "text": "§ 193(2) could rest. We think it reasonably clear that the decision in Fox v. Western New York Motor Lines, Inc., 257 N.Y. 305, 178 N.E. 289, 78 A.L.R. 578, set.forth the substantive law of New York rather than a mere procedural rule. While Rule 14, unlike § 193(2) of the New York Civil Practice Act, gives the defendant a right to bring in a third person “who is or may be liable * * * to the plaintiff,” in view of the decisions of the Supreme Court in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, and Klaxon Co. v. Stentor Electric Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477, we do not feel justified in so construing this rule as to give the defendant a recovery which could not be obtained through any remedy available in the New York State Courts. To do so would attach a greater significance to the choice of the forum than those authorities would seem to sanction. Inasmuch as the original defendant in the case at bar could obtain no contribution in New York, if we held that Rule 14 governed, “the accident of diversity of citizenship would * * * disturb equal administration of justice in coordinate state and federal courts sitting side by side.” Klaxon v. Stentor Electric Co., 313 U.S. 487, at page 496, 61 S.Ct. 1020, at page 1021, 85 L.Ed. 1477. Such a disposition would be contrary to the whole theory of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. In spite of the great convenience and advantage of applying Rule 14 in the present case we feel impelled to hold that we are precluded from doing this by the interpretation of the New York statutes by its highest court. Judgments and orders affirmed. § 193 “2. Where any party to an action shows that some third person, not then a party to the action, is for -will be liable to such party wholly or in part" }, { "docid": "72429", "title": "", "text": "Chicago. Hyman Krauss died of leukemia on April 18, 1977. Frances Krauss filed an application for payment of $100,000, plus interest, under her husband’s certificate on May 18, 1977. Manhattan Life paid her $25,000, plus interest, which it stated was the maximum coverage under the policy for part-time employees. Since the master policy was issued and delivered in New York State, section 161(l)(a) of the New York Insurance Law required the policy to include an incontestability clause. That clause provides that the “validity of this Policy shall not be contested, except for nonpayment of premiums, after it has been in force for two years from its date of issue.” Illinois and New York differ regarding the effect of such an incontestability clause where, as here, an insurance company seeks to defend against liability on grounds that the insured was not eligible for insurance under the group policy. Under New York law, as established in Simpson v. Phoenix Mutual Life Insurance Co., 24 N.Y.2d 262, 299 N.Y.S.2d 835, 247 N.E.2d 655 (1969), Manhattan Life cannot raise Hyman Krauss’s ineligibility as a defense and would hence be liable for the entire $100,000. Under Illinois law, as established in Crawford v. Equitable Life Assurance Society of the United States, 56 Ill.2d 41, 305 N.E.2d 144 (1973), Manhattan Life can raise Hyman Krauss’s ineligibility as a defense. Contrary to the conclusions of the district court, we believe that, because Illinois is the only state with an enunciated interest in this dispute, Illinois law should apply. Accordingly, despite the incontestability clause, Manhattan Life can assert Hyman Krauss’s ineligibility as a defense. Under the principles of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), a federal court in a diversity case must apply the substantive law of the forum state, including its choice-of-law rules. Klaxon Co. v. Stentor Electrical Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Thus, as recognized by the district court, New York choice-of-law rules govern this case. In Dym v. Gordon, 16 N.Y.2d 120, 124, 262 N.Y.S.2d 463, 466, 209 N.E.2d" }, { "docid": "23475951", "title": "", "text": "terminals to furnish adequate cab service. It contracted with four ■operating companies, in which it had a majority interest, to operate their cabs out of the terminals designated by it. It furnished them with various supplies and services and supervised the hiring of their drivers. Factually, the subsidiaries were no more under the parent’s thumb than Mursam; furthermore, there was no suggestion that the operating companies were undercapitalized or unable to pay the plaintiffs judgment. If anything, therefore, we should be more ready to hold the defendants before us than the operating companies sued there. We are not, however, bound by New York law in our decision of this case. For the contract, a lease of New Jersey real estate, was made and recorded in New Jersey. While the trial court held that New Jersey followed the doctrine of the Wagner case, the only case cited for this assertion is hardly in point. It would, indeed, be strange if New Jersey did foi low New York law, since even before the harsh doctrine of the Wagner case was established, the leading treatise in this field said that New York law “is probably more conservative than the general run of most jurisdictions,” contrasting Berkey v. Third Avenue R. Co., 244 N.Y. 84, 155 N.E. 58, 50 A.L.R. 599 (which refused to impose liability on the parent of a street railway operated as part of a unified system) with Lehigh Valley R. Co. v. Dupont, 2 Cir., 128 F. 840, and Lehigh Valley R. Co. v. Delachesa, 2 Cir., 145 F. 617, in which, on similar facts, this court (in the old untrammeled days before Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487) imposed liability. New Jersey law is as yet relatively undeveloped, but some clue to the rationale which would be followed by its courts is afforded by Ross v. Pennsylvania Railroad, 1930, 106 N.J.L. 536, 148 A. 741, 743, where an administrator sued a parent corporation for damages caused by the act of its subsidiary. In holding the parent, the Court" }, { "docid": "7012195", "title": "", "text": "CLARK, Circuit Judge. This is an appeal from a plaintiff’s judgment in an action by the beneficiary to recover the face amount of a policy of life insurance issued by defendant. The insured, a resident of New York, applied for the policy and paid the first premium thereon in Massachusetts. But there was conflicting evidence as to whether the policy had been delivered to the insured in Massachusetts or had been mailed to his residence in New York. A provision of the policy limited death benefits to a return of premiums in the event of the insured’s suicide, while sane or insane, within two years of the date of issue. Since the insured did so commit suicide, the only question involves the effectiveness of the limitation. The court below applied § 155 of the N.Y. Insurance Law, which has been interpreted as rendering the restriction void where the insured commits suicide while insane. Franklin v. John Hancock Mut. Life Ins. Co., 298 N.Y. 81, 80 N.E.2d 746. The case was submitted to the jury for a verdict upon special interrogatories, and it was found that the policy had been mailed to the insured in New York and that the insured had been insane at the time he committed suicide. Judgment for plaintiff was directed to be entered upon this verdict. As jurisdiction is grounded upon diversity of citizenship of the parties, familiar principles require that we decide the issue here in accordance with the substantive law, including the conflict-of-laws rules, which would be applied by a court of the State of New York. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; Griffin v. McCoach, 313 U.S. 498, 61 S.Ct. 1023, 85 L.Ed. 1481, 134 A.L.R. 1462; Guaranty Trust Co. of N. Y. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231; Sampson v. Channell, 1 Cir., 110 F.2d 754, 128 A.L.R. 394, certiorari denied Channell v. Sampson, 310 U.S. 650," }, { "docid": "23353745", "title": "", "text": "highest court in New York ruled in that case that the action, by virtue of New York choice of law rules, was properly founded upon the liability created by the Massachusetts Wrongful Death Act. It stated, however, that.New York courts should, if appropriate, award damages in excess of the statutory $15,000 maximum recovery required by the Massachusetts statute. Fundamental New York policy, given expression by a state constitutional provision prohibiting the New York legislature from enacting any such limitation, was held to prevent New York courts from applying the limitation by means of court-made law. The court emphasized that the limitation was deemed by the 1894 drafters of the state constitution to be “absurd and unjust, in measuring the pecuniary value of all lives, to the next of kin, by the same arbitrary standard.” In effect, the Court of Appeals of the State of New York, in Kilberg, fashioned a rule of law allowing recovery of damages without arbitrary limit, modeled on the New York Wrongful Death Statute, although the Massachusetts statute still served as the foundation for plaintiff’s cause of action for wrongful death. Judge McGohey, constrained by the edict of Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), and Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), properly applied the principles of New York conflict of laws enunciated in Kil-berg and declined to recognize the Massachusetts limitation upon liability. This writer has already criticized the argument apparently adopted by the panel opinion, that New York was constitutionally disabled from applying its own substantive rules of law to a cause of action arising out of a plane crash in Massachusetts. See dissent, 307 F.2d at 136. Although Judge Swan did not expressly approve this proposition of constitutional law, the inference seemed inescapable that, in effect, the panel majority had exalted the lex loci delictus to constitutional status with the consequence that New York was barred from applying the whole or any part of its own wrongful death policy to the events occurring" }, { "docid": "3233407", "title": "", "text": "defendant French Line from Le Havre to Paris. He claims that the baggage was negligently placed in the rack by both defendants. French Railways maintains an office in New York City which solicits business and sells tickets for its transportation facilities in France. It has not procured a license to do business in New York, nor has it consented to be sued. French Line has offices in New York City, its vessels regularly come into the port of New York, and it is duly authorized to do business in New York. French Railways contends that this action, between non-residents on an out of state tort, would not be entertained by the courts of New York State, and that this court must follow that state rule, citing Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. The courts of New York State have declined to entertain jurisdiction in suits between non-residents on out of state torts in the absence of special circumstances, Gregonis v. Philadelphia & R. Coal & Iron Co., 235 N.Y. 152, 139 N.E. 223, 32 A.L. R. 1; Reep v. Butcher, 176 Misc. 369, 27 N.Y.S.2d 330; Brandao v. United Fruit Co., 183 Misc. 683, 50 N.Y.S.2d 886, Yesuvida v. Pennsylvania R. Co., 200 Misc. 815, 111 N.Y.S.2d 417, and foreign corporations are treated as non-residents even though they have obtained authority to do business in New York. See Williamson v. Palmer, 181 Misc. 610, 43 N.Y.S.2d 532. The General Corporation Law of New York, however, provides that the courts have jurisdiction of actions of this type. **The judicial policy of declining jurisdiction is effective only in the absence of special circumstances, Keep v. Butcher, supra. The fact that the statute of limitations has run in the plaintiff’s residence has been considered a special circumstance, Randle v. Inecto, Inc, 131 Misc. 261, 226 N.Y.S. 686; Williamson v. Palmer, supra; or that defendant was not present in the plaintiff’s residence, Murnan v. Wabash Railway Co., 246 N.Y. 244, 158 N.E. 508, 54 A.L.R. 1522, on remand, 222 App.Div. 833, 226 N.Y.S. 393; Richter v." }, { "docid": "2184179", "title": "", "text": "agreement. By the incorporation of the parts of the Act it was agreed that the owner would be discharged from liability for loss of or damage to cargo unless suit be brought within a year. If this stipulation is valid the plaintiff cannot recover as more than a year had expired between the accrual of the causes of action and the bringing of the suit. If the Florida statutes are controlling the action was brought seasonably and the granting of the motion to dismiss was error. The plaintiff’s position is simply stated. It says that there is diversity of citizenship, the amount involved exceeds $3,000, the action is brought in a Federal court sitting in Florida, and requires the application of Florida law, the laws of the forum govern as to limitations, and by the Florida law contractual stipulations shortening limitation periods are void. If this were the usual run of the mill diversity case for the enforcement of a right derived from and existing under state law the question, at the outset, would be whether the determination of the applicable limitation period was controlled, under Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, by state law. Such question has been resolved. Whether the question be of substantive or procedural rights, or in a hiatus between the two, it is the state law that governs. Guaranty Trust Co. of New York v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231. See also Holderness v. Hamilton Fire Ins. Co. of New York, D.C.S.D.Fla.1944, 54 F.Supp. 145. So too, would we be required to determine the effect to be given to a prohibition against shortening limitation periods by contract under a declaration of public policy made by the legislature of the state in which the court is sitting? Trust Co. of Chicago v. Pennsylvania Railroad Co., 7 Cir., 1950, 183 F.2d 640, 21 A.L.R.2d 238. But do we here have the usual type of a diversity ease? Do we look to the statutes of the State and its" }, { "docid": "13426590", "title": "", "text": "by other circuits. See North River Insurance Co. v. Fed Sea/Fed Pac Line, 647 F.2d 985, 989 (9th Cir.1981) (foreign jurisdiction clause valid when COGSA applies only as contract term); Ralston Purina Co. v. Barge Juneau & Gulf Carribean Lines, 619 F.2d 374, 375 (5th Cir.1980) (parties’ agreement to one year limitation on suit prevails over COGSA provision); Commonwealth Petrochemicals Inc. v. S/S Puerto Rico, 607 F.2d 322, 325 (4th Cir.1979) (specific definition of “package” in bill of lading controls over definition in COGSA); P.P.G. Industries, Inc. v. Ashland Oil Co., 527 F.2d 502, 507 (3d Cir.1975) (parties could have extended, but neglected so to do, COGSA’s statute of limitations provision to agent of carrier). Thus, in this case COGSA does not apply of its own force as a statute, but merely as a contractual term in the bill of lading. We disagree with the district court’s assertion that state law is “totally unavailing.” We see no reason to deviate from our holding in Leather’s Best v. S.S. Mormaclynx, 451 F.2d 800, 808 (2d Cir.1971), that an action against a terminal for negligent loss of cargo is not within federal maritime jurisdiction, but is a state claim governed by state law. Since state law governs, provisions of COGSA incorporated by contract can be valid only insofar as they do not conflict with applicable state law. In deciding this pendent claim, of course, the district court must act in the same manner as would a New York state court, Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and this rule applies to conflicts rules as well, Klaxon Co. v. Stentor Electric Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). Here, plaintiffs allege that the oil was lost due to defendants’ negligence. Since the loss occurred in New Jersey, a New York court would apply New Jersey law. Babcock v. Jackson, 12 N.Y.2d 473, 483, 240 N.Y.S.2d 743, 750-51, 191 N.E.2d 279, 284 (1963) (“where the defendant’s exercise of due care ... is in issue, the jurisdiction in which the" }, { "docid": "7012196", "title": "", "text": "a verdict upon special interrogatories, and it was found that the policy had been mailed to the insured in New York and that the insured had been insane at the time he committed suicide. Judgment for plaintiff was directed to be entered upon this verdict. As jurisdiction is grounded upon diversity of citizenship of the parties, familiar principles require that we decide the issue here in accordance with the substantive law, including the conflict-of-laws rules, which would be applied by a court of the State of New York. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; Griffin v. McCoach, 313 U.S. 498, 61 S.Ct. 1023, 85 L.Ed. 1481, 134 A.L.R. 1462; Guaranty Trust Co. of N. Y. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231; Sampson v. Channell, 1 Cir., 110 F.2d 754, 128 A.L.R. 394, certiorari denied Channell v. Sampson, 310 U.S. 650, 60 S.Ct. 1099, 84 L.Ed. 1415. Defendant’s contention is that the New York statute should not have been applied to the transaction here involved. Its position is that the applicable substantive law is that of Massachusetts, under which the suicide provision is enforceable in accordance with its terms. Moore v. Northwestern Mut. Life Ins. Co., 192 Mass. 468, 78 N.E. 488. This assertion is based upon the fact that a so-called “binding receipt” was delivered to the insured in Massachusetts at the time he executed Part I of the application and paid the first premium. It is urged that as the locus contractus its law should be applied. Although there is considerable conflict in New York, as elsewhere, as to the effect of various types of binding receipts, these decisions involve the situation where death or a change in the applicant’s condition occurs between the date of the receipt and the date when the policy, if any, is delivered. See Comment, 63 Yale L.J. 523, 525-528 (1954); see also Comment, 44 Yale L.J. 1223 (1935)." }, { "docid": "11023387", "title": "", "text": "Ins. Co. v. Plummer, 5 Cir, 13 F.Supp. 169. And this principle of construction has been applied to these garage liability policies. Lavine v. Indemnity Ins. Co. 260 N.Y. 399, 407, 183 N.E. 897; Newton v. Employers Liab. Assur. Corp. Ltd., supra; Appleman Insurance Law and Practice, Vol. VII, c. 188, p. 276. Counsel for the appellee also refers to the printed provision of the policy which reads; “This policy applies only to accidents which occur during the policy period within the United States of America, Canada or Newfoundland.” This is a very customary provision in automobile policies. It, of course, applies to accidents resulting from the use of any automobile included in the policy; but it obviously does not apply to accidents arising from the use of an automobile not within the coverage of the policy. Lavine v. Indemnity Ins. Co. 260 N.Y. 399, 183 N.E. 897. As this case was tried in Virginia and the jurisdiction of the federal court was based on diverse citizenship only, it is our duty here to give effect to any applicable Virginia decisions. New York Life Ins. Co. v. Jackson, 304 U.S. 261, 58 S.Ct. 871, 82 L.Ed. 1329; Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. As the policy was issued and delivered in Illinois, we first look to the Virginia decisions on the conflict of laws with respect to the applicable rule of interpretation of the contract. Ruhlin v. New York Life Ins. Co. 304 U.S. 202, 208, note 2, 58 S.Ct. 860, 82 L.Ed. 1290. On this point we find the Virginia decisions are in accord with the general doctrine that the interpretation of the contract depends upon the law of the place where the policy was delivered. Phoenix Indemnity Co. v. Anderson, 170 Va. 406, 196 S.E. 629; C.I.T. Corporation v. Guy, 170 Va. 16, 195 S.E. 659; Union Central Life Ins. Co. v. Pollard, 94 Va. 146, 26 S.E. 421, 36 L.R.A. 271, 64 Am.St.Rep. 715. And we also find the Illinois rule of interpretation of insurance contracts" }, { "docid": "22109291", "title": "", "text": "secure the utmost care in the rendering of a service of the highest importance to the community. A carrier who stipulates not to-be bound to the exercise of care and dili gence ‘seeks to put off the essential duties of his employment.’ It is recognized that the carrier and the individual customer are not on an equal footing. ‘The latter * * * cannot afford to higgle or stand •out and seek redress in the courts. * * He prefers rather to accept any bill of lading, or sign any paper the carrier presents; often, indeed, without knowing what the one or the other contains. In most cases he has no alternative but to •do this or abandon his business.’ Railroad Company v. Lockwood, supra, [17 Wall, at] 378, 379, 21 L.Ed. 627, 639, 640. For these reasons, the common carrier, in the prosecution of its business as such is not permitted to drop its character and transmut itself by contract into a mere bailee, with right to stipulate against the consequences of its negligence.” . Santa Fe Railway v. Grant Bros., supra, note 1. . Klaxon Co. v. Stentor Mfg. Co., 313 U.S. 481, 61 S.Ct. 1020, 85 L.Ed. 1417; Griffin v. McCoach, 313 U.S. 498, 61 S.Ct. 1023, 85 L.Ed. 1481. . Straus & Co. v. Canadian Pacific R. Co., 254 N.Y. 407, 113 N.E. 564; Restatement of Conflict of Laws and New York Annotations thereto, §§ 337, 338, 612. One of the statutory provisions relied upon by the Court of Appeals in the Straus case as symptomatic of New York’s public policy was Personal Property Law, McK.Consol.Laws, c. 41, § 189, (§ 3 of the Uniform Bills of Lading Act, 4 Uniform Laws Annotated) which prevents a carrier from inserting in a bill of lading terms which are “contrary to law or public policy, or (b) In any wise impair his obligation to exercise at least that degree of care in the transportation and safekeeping of the goods entrusted to him which a reasonably careful man would exercise in regard to similar goods of his own.” ." }, { "docid": "14789542", "title": "", "text": "was decided by Justice Brandéis upon the principles of Swift v. Tyson, 16 Pet. 1, 41 U.S. 1, 10 L.Ed. 865, at a time when it was thought there was Federal common law, but Justice Brandéis himself wiped out the authority of that case, and many others, by overruling Swift v. Tyson in his opinion in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, holding that there is no Federal common law, and that, upon a non-Federal question, the controlling substantive law is the law of the state. Plaintiff also cites and relies upon Capo v. C-O Two Fire Equipment Co., D.C.N.J.1950, 93 F.Supp. 4. But that case, like many other soundly reasoned cases, including one by our own 8th circuit Court of Appeals, Dixey v. Federal Compress & Warehouse Co., 8 Cir., 132 F.2d 275, is not based on the substantive law of New York. That case was based on the law of New Jersey, and the Dixey-Federal Compress case was based on the law of Arkansas. I am, therefore, of the opinion that the substantive law of New York upon the question, as determined by the last decisions of its highest court above cited, is that if the policy contains provisions authorizing the insurer to settle its liabilities with the insured by a loan, the loan is not payment, but otherwise it is payment. Here, there is no provision in the policy authorizing the insurer to settle its liabilities by a loan, and, therefore, under the controlling law of New York, the “loan” was payment, and, under the holding of the Supreme Court in United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171, the insurer is the real party in interest and must prosecute the suit in its own name. But even if the loan receipt here did not constitute payment under the controlling substantive law of New York, but amounted only to a loan, the effect would be no more than to enable the insurer to prosecute this action in the name of" }, { "docid": "22109292", "title": "", "text": ". Santa Fe Railway v. Grant Bros., supra, note 1. . Klaxon Co. v. Stentor Mfg. Co., 313 U.S. 481, 61 S.Ct. 1020, 85 L.Ed. 1417; Griffin v. McCoach, 313 U.S. 498, 61 S.Ct. 1023, 85 L.Ed. 1481. . Straus & Co. v. Canadian Pacific R. Co., 254 N.Y. 407, 113 N.E. 564; Restatement of Conflict of Laws and New York Annotations thereto, §§ 337, 338, 612. One of the statutory provisions relied upon by the Court of Appeals in the Straus case as symptomatic of New York’s public policy was Personal Property Law, McK.Consol.Laws, c. 41, § 189, (§ 3 of the Uniform Bills of Lading Act, 4 Uniform Laws Annotated) which prevents a carrier from inserting in a bill of lading terms which are “contrary to law or public policy, or (b) In any wise impair his obligation to exercise at least that degree of care in the transportation and safekeeping of the goods entrusted to him which a reasonably careful man would exercise in regard to similar goods of his own.” . The Civil Aeronautics Act became law on June 23, 1938, less than two months after the decision in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 811, 82 L.Ed. 1188. . Since it is argued that Congress intended to give the Board exclusive authority, at least in the first instance, to validate tariffs, in the interest of export and uniform Federal regulation of interstate air commerce, it is noteworthy that the Civil Aeronautics Act contains no provision which contemplates an action before the Board for damages for violation of the Act from which the Board might learn, in the first instance, via the complaints of disgruntled shippers and passengers, how well its regulations are working in practice. Compare 49 U.S.C.A. §§ 9, 13(1) providing for such a proceeding before the Interstate Commerce Commission, and 46 U.S.C.A. § 821 which authorizes a similar action before the Federal Maritime Board. See also text accompanying notes 22, 23 and 24 infra. . As to rail transportation, see cases cited in note 1, supra. As to water" }, { "docid": "11137634", "title": "", "text": "charitable organization domiciled in Ohio. Plaintiffs argued for the application of New York law, the lex loci delicti. Defendant sought to apply New Jersey law (which provides charitable groups with immunity to certain tort actions) on the ground that New Jersey had an interest in forcing plaintiffs, as domiciliaries, to accept the burdens as well as the benefits of its loss-distribution rules. The New York Court of Appeals held that this substantive law interest of New Jersey’s outweighed the happenstance that the injury occurred in the State of New York, which had no substantive interest in the outcome; accordingly, New Jersey law applied. In the case at hand, while defendant argues for application of the lex loci delicti, the Court must also consider the substantive law purposes of Virginia’s contributory negligence law and New York’s comparative negligence law. See Murphy v. Acme Markets, Inc., 650 F.Supp. 51, 54 (E.D.N.Y.1986) (McLaughlin, J.). If the purpose of these laws relates to loss allocation, Virginia has no substantive law interest in enforcing its rule when two non-domiciliaries are involved. Id. at 54. On the other hand, New York has an obvious interest in enforcing its determination that its own domiciliary whose own negligence is only partially responsible for her injuries should not go uncompensated. Indeed, the strong New York policy favoring partial compensation of its domiciliaries in such circumstances has led the New York Court of Appeals to decline to apply a Massachusetts statutory limit on damages for a wrongful death suit, Kilberg v. Northeast Airlines Inc., 9 N.Y.2d 34, 211 N.Y.S.2d 133, 172 N.E.2d 526 (1961), a Connecticut law permitting a wife to sue her husband for negligently inflicted injuries, Mertz v. Mertz, 271 N.Y. 466, 3 N.E.2d 597 (1936), and a British law upholding a contractual provision releasing a shipper from liability for its own negligence, F.A Straus & Co. v. Canadian Pac. Ry. Co., 254 N.Y. 407, 173 N.E. 564 (1930). Since, as Judge McLaughlin noted in Murphy, application of New York law in such circumstances will neither impair multi-state workings nor produce great uncertainty for litigants, the teachings of" }, { "docid": "2782984", "title": "", "text": "brought in New York to recover for the death through a negligent landing at a New Jersey Airport. There the defendant attempted to limit its liability to the sum of $5,000 under a provision to that effect in his ticket which had been purchased in New York. The New York Court of Appeals held that New York law governed the defendant’s contract obligation, and under that law the provision was invalid as unlawfully limiting the liabilities of a common carrier. There is, however, a plain difference between a specific agreement to limit liability and an implied obligation of a common carrier to act with due care. Any right of recovery was founded upon the New Jersey Death Act, and the New Jersey law would be clearly controlling unless the stipulation in the ticket were found valid. In Dyke v. Erie Ry. Co., 45 N.Y. 113, 6 Am.Rep. 43, the plaintiff purchased a ticket in New York from the Erie Railroad. He received injuries while passing through Pennsylvania on a trip from Attica, New York, to New York City, and sued the railroad in the New York courts. A Pennsylvania statute limited recovery to $3,000 in actions against common carriers to recover for personal injuries.- The Court ■of Appeals refused to apply the limitation of the Pennsylvania statute on the ground that the contract of carriage was not divisible and depended upon the law of the place where it was made rather than the place where the accident happened. It seems hard to reconcile this old case with later decisions by the same court in Carroll v. Staten Island R. Co., supra, and Webber v. Herkimer & M. St. R. Co., 109 N.Y. 311, 16 N.E. 358. At best, however, the death of a passenger outside of New York territory was not involved.in the Dyke decision and it was not necessary, as here, to invoke the death statute of a foreign state in order to recover any damages at all. We cannot regard Dyke v. Erie Ry. Co., supra, as in any way governing the case before us. It seems clear" } ]

[ { "docid": "5311350", "title": "", "text": "present to testify, or if the court could hear the claim “on the record.” Watts’ attorney told the court that the only purpose served by a hearing would be to allow Watts and his wife to testify to the information contained in the interrogatories. Rather than bring Watts and his wife from the continental United States to testify to information that he had before him, the judge admitted for the record interrogatories of Watts and his wife. On the basis of the records from the plea hearing, the interrogatories of Watts and his wife alleging a secret agreement, affidavits of Watts’ former defense counsel and the prosecutor denying such an agreement, affidavits of Watts’ in-laws claiming that the attorney of Watts’ wife told them of the secret agreement, the Rule 35 motion filed by Watts, two letters written to the Judge by Watts, and his own recollections, Judge Dueñas denied Watts’ motion. Watts challenges this denial. He argues that the court erred in resolving contradicting affidavits and interrogatories concerning a secret agreement without an eviden-tiary hearing at which he and his wife could testify. ANALYSIS Section 2255 requires that “[ujnless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing ..., determine the issues and make findings of fact and conclusions of law.” 28 U.S.C. § 2255 (1982). When section 2255 motions are based on alleged occurrences entirely outside the record, which if true would support relief, the court must conduct a hearing on those allegations “unless, viewing the petition against the record, its allegations do not state a claim for relief or are so patently frivolous or false as to warrant summary dismissal.” See Baumann v. United States, 692 F.2d 565, 571 (9th Cir.1982). In deciding such motions judges need not conduct full evidentiary hearings. See Rules Governing Habeas Corpus Cases. Section 2255 itself “recognizes that there are times when allegations of facts outside the record can be fully investigated without requiring the personal presence of the prisoner.” Machibroda v. United" } ]

[ { "docid": "8896346", "title": "", "text": "be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” Henderson, 426 U.S. at 647, 96 S.Ct. at 2258. We express no opinion as to whether Bigman was, in fact, apprised of the element of intent. We merely hold that such a conclusion cannot fairly be drawn from the record in this case. Accordingly, an evidentiary hearing is required. Sober, 644 F.2d at 810; see also Shah v. United States, 878 F.2d 1156, 1158 (9th Cir.) (gathering cases), cert. denied, — U.S. -, 110 S.Ct. 195, 107 L.Ed.2d 149 (1989). In the future the court would be well advised to establish on the record that the defendant understands the intent element of the crime to which a plea of guilty is entered. See, e.g., Williams v. Raines, 783 F.2d 774, 775-76 (9th Cir.1986) (upholding denial of a Henderson voluntariness challenge because the district court specifically questioned the defendant on the element of intent). II For the first time on appeal Bigman says that his sentence must be vacated due to the district court’s failure to comply with the requirements of Fed.R.Crim.P. 32(c)(3)(D). Normally we will not address on appeal issues not raised in a § 2255 motion and passed upon by the district court. See e.g., Willard v. California, 812 F.2d 461, 465 (9th Cir.1987). “But this rule is not inflexible.” Quinn v. Robinson, 783 F.2d 776, 814 (9th Cir.1986) (citing Youakim v. Miller, 425 U.S. 231, 234, 96 S.Ct. 1399, 1401, 47 L.Ed.2d 701 (1976)), cert. denied, 479 U.S. 882, 107 S.Ct. 271, 93 L.Ed.2d 247 (1986); see also In re Howell, 731 F.2d 624, 627 (9th Cir.), cert. denied, 469 U.S. 933, 105 S.Ct. 330, 83 L.Ed.2d 266 (1984). Thus “[w]e have discretion to decide whether to address an issue that the district court did not reach if the question is a purely legal one and the record has been fully developed prior to appeal; in deciding whether to exercise this discretion we should consider" }, { "docid": "8896345", "title": "", "text": "644 F.2d 807, 809 (9th Cir.1981) (per curiam). Bigman signed a plea agreement under which a first degree murder charge and other charges were dismissed in exchange for a plea of guilty to second degree murder. The transcript of the hearing for Bigman’s change of plea indicates that Big-man “discussed” the plea with counsel. Bigman’s trial counsel also submitted an affidavit stating that he “discussed” with Bigman the lesser included offenses of voluntary and involuntary manslaughter. After a complete review of defense counsel’s affidavit and the transcript of the change of plea hearing, we are unable to conclude with certainty that Bigman in fact was apprised of the intent element of the crime to which he pleaded guilty. Because the record does not conclusively establish that Bigman was so apprised, we must vacate the district court’s summary denial of Big-man’s claim and remand for an evidentiary hearing. Sober, 644 F.2d at 810. We do, however, caution the court, counsel, and future litigants to consider that the Supreme Court has noted in Henderson that “it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.” Henderson, 426 U.S. at 647, 96 S.Ct. at 2258. We express no opinion as to whether Bigman was, in fact, apprised of the element of intent. We merely hold that such a conclusion cannot fairly be drawn from the record in this case. Accordingly, an evidentiary hearing is required. Sober, 644 F.2d at 810; see also Shah v. United States, 878 F.2d 1156, 1158 (9th Cir.) (gathering cases), cert. denied, — U.S. -, 110 S.Ct. 195, 107 L.Ed.2d 149 (1989). In the future the court would be well advised to establish on the record that the defendant understands the intent element of the crime to which a plea of guilty is entered. See, e.g., Williams v. Raines, 783 F.2d 774, 775-76 (9th Cir.1986) (upholding denial of a Henderson voluntariness challenge because the district court specifically questioned the defendant on the element of" }, { "docid": "22240447", "title": "", "text": "not within the range of competence demanded of attorneys in criminal cases.\" Signori, 844 F.2d at 638; see Hill, 474 U.S. at 56-57, 106 S.Ct. at 369-70, citing McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970) (McMann). Ineffectiveness of counsel is a mixed question of fact and law reviewed independently. Signori, 844 F.2d at 638. We likewise review independently the determination of voluntariness. Id. The court denied Shah’s section 2255 motion without conducting an evidentiary hearing. Under section 2255, such a hearing must be granted “[ujnless the motion and the files and record of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255. The court here considered, and rejected, the need to hold an evidentiary hearing even though Shah’s papers requesting a hearing did not reach the district judge until he had already ruled on his section 2255 motion. Where a section 2255 motion is based on alleged occurrences outside the record, no hearing is required if the allegations, “viewed against the record, either fail to state a claim for relief or are ‘so palpably incredible or patently frivolous as to warrant summary dismissal.’ ” Marrow v. United States, 772 F.2d 525, 526 (9th Cir.1985) (Marrow), quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984), cert. denied, 470 U.S. 1058, 105 S.Ct. 1772, 84 L.Ed.2d 832 (1985); see also Watts v. United States, 841 F.2d 275, 277 (9th Cir.1988) (Watts)) Baumann v. United States, 692 F.2d 565, 571 (9th Cir.1982) (Baumann). Where section 2255 motions have been based on alleged occurrences outside the record, we have often held that an eviden-tiary hearing was required. E.g., United States v. Burrows, 872 F.2d 915, 917 (9th Cir.1989) (Burrows); Marrow, 772 F.2d at 527; Mayes v. Pickett, 537 F.2d 1080, 1083 (9th Cir.1976), cert. denied, 431 U.S. 924, 97 S.Ct. 2198, 53 L.Ed.2d 238 (1977). Indeed, an evidentiary hearing may be required in spite of “the barrier of the plea or sentencing procedure record [which], although imposing, is not invariably insurmountable.” Blackledge v. Allison, 431 U.S. 63," }, { "docid": "1578773", "title": "", "text": "Evidentiary Hearing As the case is presented to us today, the proper question is not the ultimate merits of Kayode’s claim of ineffective-assistance-of-counsel but, rather, whether the district court erred in denying the claim without granting an evidentiary hearing. We review the district court’s decision for an abuse of discretion. United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir.1998). A. Section 2255 permits a federal prisoner to bring a collateral challenge by moving the sentencing court to vacate, set aside, or correct his sentence. 28 U.S.C. § 2255(a). Once a petitioner files a § 2255 motion, the district court is required by statute to hold a hearing “[ujnless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also United States v. Reed, 719 F.3d 369, 373 (5th Cir.2013); Dupart v. United States, 541 F.2d 1148, 1149 (5th Cir.1976) (per curiam). As this court has explained, Application of this statutory command ... demands a two-step inquiry: (1) Does the record in the case, as supplemented by the Trial Judge’s “personal knowledge or recollection,” conclusively negate the factual predicates asserted in support of the motion for post-conviction relief? (2) Would the petitioner be entitled to post-conviction relief as a legal matter if those factual allegations which are not conclusively refuted by the record and matters within the Trial Judge’s personal knowledge or recollection are in fact true? If the answer to the first inquiry is a negative one and the answer to the second inquiry an affirmative one, then s. 2255 requires the District Court to conduct an evidentiary hearing on those factual allegations which, if found to be true, would entitle the petitioner to post-conviction relief. Friedman v. United States, 588 F.2d 1010, 1015 (5th Cir.1979) (footnote omitted). Thus, a district court abuses its discretion by denying an evidentiary hearing if the motion sets forth specific, controverted issues of facts that are not conclusively negated by the record and that, if proved at the hearing, would entitle the petitioner to any relief. See, e.g.," }, { "docid": "1578774", "title": "", "text": "record in the case, as supplemented by the Trial Judge’s “personal knowledge or recollection,” conclusively negate the factual predicates asserted in support of the motion for post-conviction relief? (2) Would the petitioner be entitled to post-conviction relief as a legal matter if those factual allegations which are not conclusively refuted by the record and matters within the Trial Judge’s personal knowledge or recollection are in fact true? If the answer to the first inquiry is a negative one and the answer to the second inquiry an affirmative one, then s. 2255 requires the District Court to conduct an evidentiary hearing on those factual allegations which, if found to be true, would entitle the petitioner to post-conviction relief. Friedman v. United States, 588 F.2d 1010, 1015 (5th Cir.1979) (footnote omitted). Thus, a district court abuses its discretion by denying an evidentiary hearing if the motion sets forth specific, controverted issues of facts that are not conclusively negated by the record and that, if proved at the hearing, would entitle the petitioner to any relief. See, e.g., Mack v. Smith, 659 F.2d 23, 25 (5th Cir.1981) (“[W]here [the petitioner] would be entitled to post-conviction relief if his factual allegations were proven true, s. 2255 requires an evidentiary hearing on those allegations.”) (citing Friedman, 588 F.2d 1010, approvingly); see also United States v. Thompson, 721 F.3d 711, 713 (D.C.Cir.) cert. denied, — U.S. -, 134 S.Ct. 629, 187 L.Ed.2d 407 (2013) (“[Wjhere a defendant raises a colorable and previously unexplored ineffective assistance claim on appeal, we remand for further district court proceedings unless the record alone conclusively shows that the defendant either is or is not entitled to relief.”) (internal quotation marks omitted); Winthrop-Redin v. United States, 767 F.3d 1210, 1216 (11th Cir.2014) (“[A] petitioner need only allege — not prove — reasonably specific, non-conclusory facts that, if true, would entitle him to relief.”) (quotation marks and citation omitted). Further, “[cjontested fact issues in § 2255 cases must be decided on the basis of evidentiary hearings.” Reagor v. United States, 488 F.2d 515, 517 (5th Cir.1973). As the Supreme Court has explained, even" }, { "docid": "23433395", "title": "", "text": "was imposed. Like Hirsch, Brown filed objections to the presentence report. Under the District Court’s Administrative Order, he objected to the allegations of the report pertaining to drug quantities, the number of people involved in the conspiracy, and the claim that he exchanged a gun for discharge of a drug debt. Addendum to Brown PSR (served June 2, 1992). These objections were renewed at the time of sentencing. Brown Sentencing Tr. 9-14. The government responded to these objections by relying on the presentence report. Brown Sentencing Tr. 15-21. The government, citing Smith v. United States, 876 F.2d 655, 657 (8th Cir.) (per curiam), cert. denied, 493 U.S. 869, 110 S.Ct. 195, 107 L.Ed.2d 149 (1989), argues that Brown waived his procedural argument by not requesting an evidentiary hearing at the time of sentencing. Smith is not in point. In Smith, the defendant made certain challenges to the PSR at the time of sentencing. These were resolved against him. He then brought a postconviction proceeding under 28 U.S.C. § 2255, attempting to raise “new challenges to his PSI.”' 876 F.2d at 657. We held that “[b]ecause Smith did not raise these claims at sentencing, he is precluded from raising them in a section 2255 motion.” Ibid. Here, on direct appeal, Brown urges only those factual challenges to the PSR that he made in the District Court. He made these objections both before and at the sentencing hearing. He did not ask for an evidentiary hearing in so many words, but under our cases a factual dispute over the PSR triggers the right to such a hearing. Streeter, 907 F.2d at 791-92. As in the case of Hirsch, the procedures required by our precedents were not followed. We again refer to Streeter, 907 F.2d at 791-92: The presentence report is not evidence and is not a legally sufficient basis for making findings on contested issues of material fact. If a defendant objects to factual allegations in a presentence report, the Court must either state that the challenged facts will not be taken into account at sentencing, or it must make a finding" }, { "docid": "20858611", "title": "", "text": "testify in his own defense. III. Our analysis is focused on whether Rosin was entitled to an evidentiary hearing before the district court denied his § 2255 motion for post-conviction relief. On appeal, Rosin argues that his trial counsel rendered ineffective assistance by incorrectly estimating his prison sentence to be five to six years and for failing to pursue plea negotiations. Rosin contends that the reasonable inference to be drawn from the factual allegations in his affidavit is that he would have accepted a guilty plea in exchange for a more favorable sentence had he been properly advised by trial counsel. Rosin asserts that the competing factual allegations in his affidavit and in the affidavits of his trial counsel entitle him to an evidentiary hearing. We disagree. We review a district court’s denial of an evidentiary, hearing in a § 2255 proceeding for an abuse of discretion. Aron v. United States, 291 F.3d 708, 714 n. 5 (11th Cir.2002). The district court is not required to grant a petitioner an evidentiary hearing if the § 2255 motion “and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see Anderson v. United States, 948 F.2d 704, 706 (11th Cir.1991). The district court should order an evidentiary hearing and rule on the merits of a petitioner’s claim, however, “if the petitioner alleges facts that, if true, would entitle him to relief.” Aron, 291 F.3d at 714-15 (internal quotation marks omitted). Nevertheless, an evidentiary hearing is unnecessary when the petitioner’s allegations are “ ‘affirmatively contradicted by the record’ ” or if such claims are “ ‘patently frivolous.’ ” Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir.1989) (quoting United States v. Guerra, 588 F.2d 519, 520-21 (5th Cir.1979)). When a challenge to the validity of a conviction on the basis of ineffective assistance of counsel arises in the context of the plea process, Strickland’s two-part test applies. See Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203 (1985). Therefore, in order to be entitled to" }, { "docid": "8562165", "title": "", "text": "court erred in denying his § 2255 petition without an evidentiary hearing. A district court may not deny a § 2255 motion without an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255. We will affirm the court if Quan’s allegations, “viewed against the record, either fail to state a claim for relief or are ‘so palpably incredible or patently frivolous as to warrant summary dismissal.’ ” Marrow v. United States, 772 F.2d 525, 526 (9th Cir.1985) (quoting United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984), cert. denied, — U.S.-, 105 S.Ct. 1772, 84 L.Ed.2d 832 (1985)). Where a prisoner’s motion presents no more than conclusory allegations, unsupported by facts and refuted by the record, an evidentiary hearing is not required. Farrow v. United States, 580 F.2d 1339, 1360-61 (9th Cir.1978) (en banc). As we have indicated, Quan’s claim of breach of the plea agreement is contradicted by the record. As the agreement is clear on its face, no hearing is required. United States v. Bronstein, 623 F.2d 1327, 1330 (9th Cir.), cert. denied, 449 U.S. 842, 101 S.Ct. 122, 66 L.Ed.2d 50 (1980). His claim that he was induced to sign the agreement by oral promises is patently frivolous. His contention that the Parole Commission improperly considered the presentence report does not state a claim for relief. No evidentiary hearing was required. The denial of Quan’s § 2255 petition is affirmed. . The plea agreement, which was signed on August 8, 1983, reads in relevant part: The parties agree that: 1. Mr. Quan will plead guilty to Count II of the indictment (a felon in possession of explosives) the maximum possible punishment for which is a fine of not more than $10,000, or imprisonment for not more than ten years, or both. 2. Mr. Quan further agrees to testify truthfully and fully at trial concerning his involvement in the conspiracy charged in Count I at trial and further agrees to cooperate with the United States in giving complete and" }, { "docid": "23362030", "title": "", "text": "not to accept the Government’s plea offer to plead guilty to count two. The District Court ultimately concluded that Booth’s argument that he could have received a lighter sentence was futile because “[e]ven if he could have received a lighter sentence for Count II, his sentence for Count I remains at 90 months.” II. Booth appealed the District Court’s denial of his motion to vacate sentence, and we granted a certificate of appealability. We have jurisdiction over Booth’s appeal pursuant to 28 U.S.C. § 2253. We review the District Court’s decision to deny an evidentiary hearing on a motion to vacate sentence for abuse of discretion. United States v. McCoy, 410 F.3d 124, 131 (3d Cir.2005). III. Although a district court has discretion whether to order a hearing when a defendant brings a motion to vacate sentence pursuant to 28 U.S.C. § 2255, our caselaw has imposed limitations on the exercise of that discretion. In considering a motion to vacate a defendant’s sentence, “the court must accept the truth of the movant’s factual allegations unless they are clearly frivolous on the basis of the existing record.” Government of the Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir.1989). See also R. Governing § 2255 Cases R. 4(b). The district court is required to hold an evidentiary hearing “un less the motion and files and records of the case show conclusively that the movant is not entitled to relief.” Id. We have characterized this standard as creating a “reasonably low threshold for habeas petitioners to meet.” McCoy, 410 F.3d at 134 (quoting Phillips v. Woodford, 267 F.3d 966, 973 (9th Cir.2001)). Thus, the district court abuses its discretion if it fails to hold an evidentiary hearing when the files and records of the case are inconclusive as to whether the movant is entitled to relief. Id. at 131, 134 (“If [the] petition allegefs] any facts warranting relief under § 2255 that are not clearly resolved by the record, the District Court [is] obligated to follow the statutory mandate to hold an evidentiary hearing.”). In this case, Booth alleges that his" }, { "docid": "3783933", "title": "", "text": "Cir.), cert. denied McDonnell v. United States, 500 U.S. 927, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991). We agree with the trial judge’s ruling. III. Evidentiary Hearing Finally, Dugan contends the court committed error in denying his motion for an evidentiary hearing. We disagree, for as we have explained above, the record most eloquently displays that the movant, Dugan, was not entitled to relief, as there was no Brady violation and as Dugan could have, but did not, present his ineffective assistance of counsel claim on direct appeal. As we stated in Delgado, 936 F.2d at 309, “ ‘a judge should dismiss the petition without a hearing if it plainly appears from the facts of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief.’ Aleman v. United States, 878 F.2d 1009, 1012 (7th Cir.1989) (quoting Rule 4(b) of the Rules Governing Section 2255 Proceedings).” An evidentiary hearing under the circumstances in this case would serve only to “overburden [the] judicial system [by addressing] another needlessly repetitious and wasteful collateral attack. Some place, somewhere, somehow, we must put an end to this repetitious and meritless litigation if we are to be able to attempt to render justice in a timely fashion to those with meritorious claims.” Olson v. United States, 989 F.2d 229, 233 (7th Cir.) (quoting United States v. Kovic, 830 F.2d 680, 692 (7th Cir. 1987), cert. denied, 484 U.S. 1044, 108 S.Ct. 778, 98 L.Ed.2d 864 (1988)), cert. denied, — U.S. -, 114 S.Ct. 258, 126 L.Ed.2d 210 (1993). Because Dugan’s Brady and ineffective assistance claims were without merit, plainly he was not entitled to have his sentence vacated, set aside, or corrected under § 2255. We hold the court did not err in denying Dugan’s motion for an evidentiary hearing. CONCLUSION Because the government timely disclosed its agreement with its witness and because Dugan failed to raise his ineffective assistance of counsel claim at the earliest feasible opportunity, we affirm the district court’s denial of Dugan’s § 2255 motion. AFFIRMED. . On April 18, 1988," }, { "docid": "22228753", "title": "", "text": "Because we find that the district court’s abuse of discretion in excluding the medical records prejudiced Blaylock, we reverse Blaylock’s conviction and remand for a new trial. II. THE DISTRICT COURT ABUSED ITS DISCRETION IN DENYING BLAYLOCK’S MOTION FOR AN EV-IDENTIARY HEARING ON HIS CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL A. Standard of Review We review the district court’s decision to deny Blaylock’s motion for an eviden-tiary hearing on his ineffective assistance of counsel claim for abuse of discretion. United States v. Navarro-Garcia, 926 F.2d 818, 822 (9th Cir.1991). Ineffective assistance of counsel is a mixed question of law and fact that we review de novo. United States v. Layton, 855 F.2d 1388, 1416 (9th Cir.1988), cert. denied, 489 U.S. 1046, 109 S.Ct. 1178, 103 L.Ed.2d 244 (1989). B. The District Court’s Duty Pursuant to 28 U.S.C. § 2255, a district court must grant a hearing to determine the validity of a petition brought under that section, “[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255 (1988) (emphasis added). In deciding whether Blaylock was entitled to an evidentiary hearing on his claim, the district court should have determined whether, accepting the truth of Blay-lock’s factual allegations, he could have prevailed on an ineffective assistance claim. See Unites States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir.1988); United States v. Burrows, 872 F.2d 915, 917 (9th Cir.1989); see also Gov’t of Virgin Islands v. Forte, 865 F.2d 59, 62 (3rd Cir.1989). In this case, the record shows that the district court’s denial of an evidentiary hearing under 28 U.S.C. § 2255 constituted an abuse of discretion. C. The Strickland Test To prevail on an ineffective assistance of counsel claim, Blaylock must show that: (1) his attorney’s performance was unreasonable under prevailing professional standards, Strickland v. Washington, 466 U.S. 668, 687-91, 104 S.Ct. 2052, 2064-66, 80 L.Ed.2d 674 (1984); and (2) that there is a “reasonable probability that but for counsel’s unprofessional errors, the result would have been different,” id. at 694, 104 S.Ct. at 2068." }, { "docid": "23448868", "title": "", "text": "ineffectiveness due to a clear conflict of interest. This precise argument has been repeatedly rejected by this circuit. See Nevius v. Sumner, 105 F.3d 453, 460 (9th Cir.1996); Bonin, 77 F.3d at 1159. III. Evidentiary Hearing on Ineffective Assistance Next, Ortiz argues that the district court abused its discretion in not granting an evidentiary hearing on his ineffective assistance of counsel claims. The district court must grant a petitioner’s motion to hold an evidentiary hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255. “To earn the right to a hearing, therefore, Appellant [is] required to allege specific facts which, if true, would entitle him to relief.” United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 2444, 138 L.Ed.2d 203 (1997). We must accord the district court below “wide latitude” on its decision to deny an evidentiary hearing on an ineffective assistance of counsel claim. See id. (“Under the abuse of discretion standard, an appellate court may not simply substitute its judgment for that of the lower court.”). In the instant case, we agree with the district court that Ortiz has failed to allege facts that, if true, would entitle him to relief on his ineffective assistance of counsel claims. IV. Prosecutorial Misconduct Ortiz maintains that three discrete acts of prosecutorial misconduct deprived him of a fair trial: First, the prosecutor’s improper questioning of eight-year-old Bernice McCor-mack elicited “inflammatory testimony.”. Second, the government failed to disclose Brady material that may have been used to impeach a key witness for the prosecution, Jose Alvarez. Third, the prosecutor presented Alvarez’s testimony while knowing that it was perjured. For the reasons stated below, we find that all three claims of prosecutorial misconduct lack merit. A. Improper Questioning Ortiz contends that the prosecutor committed misconduct at trial in asking eight-year-old Bernice McCormack a series of questions on redirect examination regarding whether she was afraid of Ortiz. See State v. Ortiz, 131 Ariz. 195, 639 P.2d 1020, 1029 (1981). Bernice ultimately" }, { "docid": "1333192", "title": "", "text": "that it had no power over and could not be responsible for the actions of the state authorities. We accept the disavowal of power, but disagree with the assignment of responsibility. The federal prosecutor cannot direct the actions of the state prosecutors, but having incorporated the state plea offer into the federal plea agreement, the breaking of the promises by the state authorities does factor into the determination of the voluntariness of Birdwell’s guilty plea. If, as conceded, the state offer was a significant factor in inducing Birdwell to plead guilty, to the extent that he likely would not otherwise have done so, his guilty plea is tainted. The issue focuses then on whether the plea agreement was violated and whether Birdwell forfeited his position under that agreement or otherwise precipitated its abrogation. We cannot make that factual determination on the record before us, nor should we make that factual assessment in the first instance. That determination must be made by the district court. Under the mandate of section 2255, the district court must make findings of fact and conclusions of law unless the motion, files, and record “conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255; Friedman v. United States, 588 F.2d 1010 (5th Cir.1979). Fuller factual development of the record is necessary, and it is possible that an evidentiary hearing will be required. When a petitioner’s habeas claim is based on an unkept promise in a plea agreement, and his petition contains “specific factual allegations, not directly contradicted in the record, of circumstances undermining his plea,” an evidentiary hearing is warranted. United States v. Dabdoub-Diaz, 599 F.2d 96, 100 (5th Cir.), cert. denied, 444 U.S. 878, 100 S.Ct. 164, 62 L.Ed.2d 107 (1979). See United States v. Raetzsch, 781 F.2d 1149 (5th Cir.1986); United States v. Fuller, 769 F.2d 1095 (5th Cir.1985). The case before us presents such a situation. The state offer/promise was an essential element of Birdwell’s guilty plea. The record before us reflects that the two state criminal charges against Birdwell were lodged pursuant to the Interstate Agreement on Detainers." }, { "docid": "3783932", "title": "", "text": "a constitutional issue on direct appeal bars raising it in a subsequent § 2255 motion unless the defendant can show cause for and actual prejudice resulting from the error of which he complained.” United States v. Kovic, 830 F.2d 680, 683 (7th Cir.1987) (footnote omitted), cert. denied, 484 U.S. 1044, 108 S.Ct. 778, 98 L.Ed.2d 864 (1988) (citing Norris v. United States, 687 F.2d 899 (7th Cir. 1982)). Dugan had separate trial and appellate attorneys, so there is no reason why Dugan’s appellate attorney could not have raised an ineffective assistance of trial counsel claim on Dugan’s direct appeal. Moreover, the particular factual bases for Dugan’s allegations of ineffective assistance — trial counsel’s alleged failure to object to alleged hearsay, failure to cross-examine, and so forth — could have been presented to and resolved by this court on direct appeal. Because Dugan failed to present his ineffective assistance of counsel claim at the earliest feasible opportunity, Dugan is procedurally barred from seeking relief under § 2255. See United States v. Taglia, 922 F.2d 413 (7th Cir.), cert. denied McDonnell v. United States, 500 U.S. 927, 111 S.Ct. 2040, 114 L.Ed.2d 125 (1991). We agree with the trial judge’s ruling. III. Evidentiary Hearing Finally, Dugan contends the court committed error in denying his motion for an evidentiary hearing. We disagree, for as we have explained above, the record most eloquently displays that the movant, Dugan, was not entitled to relief, as there was no Brady violation and as Dugan could have, but did not, present his ineffective assistance of counsel claim on direct appeal. As we stated in Delgado, 936 F.2d at 309, “ ‘a judge should dismiss the petition without a hearing if it plainly appears from the facts of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief.’ Aleman v. United States, 878 F.2d 1009, 1012 (7th Cir.1989) (quoting Rule 4(b) of the Rules Governing Section 2255 Proceedings).” An evidentiary hearing under the circumstances in this case would serve only to “overburden [the] judicial system [by addressing]" }, { "docid": "23675705", "title": "", "text": "The expert opines that trial counsel’s performance was deficient because, among other things, he failed to seek forensic testing of the physical evidence, failed to interview witnesses and otherwise follow up on leads indicating multiple involvement, and failed to present a complete picture of the defendant at the penalty phase. The ultimate burden which must be borne if Siripongs is to succeed on his ineffective assistance of counsel claim, is to show both that trial counsel’s performance was defective and a reasonable probability that, but for the deficient performance, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984). The issue before us, however, is not whether Siripongs actually was deprived of his Sixth Amendment right to effective assistance of counsel, but only whether he is entitled to a hearing in order to- try to establish that claim. A petitioner in a capital case is entitled to an evidentiary hearing where there has been no state court evidentiary hearing and the petitioner raises a “colorable” claim of ineffective assistance. Smith v. McCormick, 914 F.2d 1153, 1170 (9th Cir.1990); Hendricks v. Vasquez, 974 F.2d 1099, 1103, 1109-10 (9th Cir.1992). See also Morris v. California, 966 F.2d 448, 454 (9th Cir.1991) (non-capital case; remand for evidentiary hearing required where allegations in petitioner’s affidavit raise inference of deficient performance), cert. denied, — U.S. —, 113 S.Ct. 96, 121 L.Ed.2d 57 (1992). Cf. Shah v. United States, 878 F.2d 1156, 1159-60 (9th Cir.) (non-capital case; no evidentiary hearing required where petitioner’s allegations as to counsel’s advice are- “patently frivolous and totally incredible.”), cert. denied, 493 U.S. 869, 110 S.Ct. 195, 107 L.Ed.2d 149 (1989). In Smith, the defendant initially pled not-guilty, but thereafter changed his plea to guilty and asked to be put to death. We held that the defendant was entitled to an evidentiary hearing, in a habeas proceeding, on his Sixth Amendment claim that counsel was ineffective in failing to seek a psychiatric evaluation to determine whether the defendant was competent to change his plea. Smith, 914 F.2d" }, { "docid": "11519278", "title": "", "text": "state a claim for relief under § 2255, Mejia-Mesa must further show that his allegations, if proven true, would establish actual prejudice. See Frady, 456 U.S. at 167, 102 S.Ct. at 1594 (ignoring cause and affirming dismissal for lack of actual prejudice). Proof of a Brady violation requires showing that the evidence the government failed to disclose was material. See United States v. Tham, 884 F.2d 1262, 1266 (9th Cir.1989) (citing Bagley, 473 U.S. at 674, 105 S.Ct. at 3379); see also United States v. Hernandez, 94 F.3d 606, 610 (10th Cir.1996) (“There appears to be little or no difference in the operation of the ‘materiality’ (Brady) and ‘prejudice’lFrady) tests.”). There can be little doubt that Mejia-Mesa’s allegations, if true, would establish prejudice. He contends that the government withheld, suppressed or destroyed a page or pages from the deck log of the M/V Eagle-I, the vessel carrying the cocaine that was seized by U.S. customs officials, that would have shown the vessel to have been outside United States waters at the time it was seized. If Mejia-Mesa’s allegations are true, the missing page or pages would be exculpatory evidence. C. Evidentiary Hearing on Brady Claim The district court has discretion to deny an evidentiary hearing on a § 2255 claim where the files and records conclusively show that the movant is not entitled to relief. See United States v. Andrade-Larrios, 39 F.3d 986, 991 (1994). Section 2255, however, requires that “an evidentiary hearing ‘shah’ be granted ‘[ujnless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.’ ” Baumann v. United States, 692 F.2d 565, 570 (9th Cir.1982) (quoting 28 U.S.C. § 2255). “[T]he petitioner need not detail his evidence, but must only make specific factual allegations which, if true, would entitle him to relief.” Id. at 571 (citing United States v. Hearst, 638 F.2d 1190, 1194-95 (9th Cir.1980)). Here, if Mejia-Mesa’s allegations are proven true, an essential element of the offenses charged in two of the three crimes of conviction may be lacking. An evidentiary hearing on Mejia-Mesa’s Brady" }, { "docid": "23675706", "title": "", "text": "petitioner raises a “colorable” claim of ineffective assistance. Smith v. McCormick, 914 F.2d 1153, 1170 (9th Cir.1990); Hendricks v. Vasquez, 974 F.2d 1099, 1103, 1109-10 (9th Cir.1992). See also Morris v. California, 966 F.2d 448, 454 (9th Cir.1991) (non-capital case; remand for evidentiary hearing required where allegations in petitioner’s affidavit raise inference of deficient performance), cert. denied, — U.S. —, 113 S.Ct. 96, 121 L.Ed.2d 57 (1992). Cf. Shah v. United States, 878 F.2d 1156, 1159-60 (9th Cir.) (non-capital case; no evidentiary hearing required where petitioner’s allegations as to counsel’s advice are- “patently frivolous and totally incredible.”), cert. denied, 493 U.S. 869, 110 S.Ct. 195, 107 L.Ed.2d 149 (1989). In Smith, the defendant initially pled not-guilty, but thereafter changed his plea to guilty and asked to be put to death. We held that the defendant was entitled to an evidentiary hearing, in a habeas proceeding, on his Sixth Amendment claim that counsel was ineffective in failing to seek a psychiatric evaluation to determine whether the defendant was competent to change his plea. Smith, 914 F.2d at 1170. In Hendricks, the defendant, after being sentenced to death for murdering two people, was granted an evidentiary hearing on his claim that counsel was ineffective in failing to investigate and pursue a mental impairment defense. Hendricks, 974 F.2d at 1109-10. Based on these authorities, and after reviewing the forensic evidence, the other evidence in the record, the expert affidavits, and the deposition of trial counsel in this ease, we are convinced that Siripongs has presented at least a colorable claim of ineffective assistance of counsel. We note that the credibility and accuracy of the averments of the experts has never been materially questioned by the state or the district court. The district court nevertheless denied petitioner’s request for an evidentiary hearing. The district court advanced two principal reasons. The first was the court’s acceptance of the contention by the state that counsel’s decision not to pursue an accomplice defense, indeed even to investigate such a defense, was justified as a “tactical” decision, because the mounting of such a defense would involve an admission" }, { "docid": "11519279", "title": "", "text": "If Mejia-Mesa’s allegations are true, the missing page or pages would be exculpatory evidence. C. Evidentiary Hearing on Brady Claim The district court has discretion to deny an evidentiary hearing on a § 2255 claim where the files and records conclusively show that the movant is not entitled to relief. See United States v. Andrade-Larrios, 39 F.3d 986, 991 (1994). Section 2255, however, requires that “an evidentiary hearing ‘shah’ be granted ‘[ujnless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.’ ” Baumann v. United States, 692 F.2d 565, 570 (9th Cir.1982) (quoting 28 U.S.C. § 2255). “[T]he petitioner need not detail his evidence, but must only make specific factual allegations which, if true, would entitle him to relief.” Id. at 571 (citing United States v. Hearst, 638 F.2d 1190, 1194-95 (9th Cir.1980)). Here, if Mejia-Mesa’s allegations are proven true, an essential element of the offenses charged in two of the three crimes of conviction may be lacking. An evidentiary hearing on Mejia-Mesa’s Brady claim is thus required. II. Juror Exclusion Mejia-Mesa next claims that the systematic exclusion of Black and Hispanic persons from the jury pool deprived him of an impartial jury and fair trial. Not having raised this claim at trial or ori direct appeal, he is procedurally barred from raising it now unless he can show cause and actual prejudice. See Frady, 456 U.S. at 167, 102 S.Ct. at 1594; Johnson, 988 F.2d at 945; Dunham, 767 F.2d at 1397. Mejia-Mesa has made no showing of cause or actual prejudice. A claim of new evidence cannot excuse his failure to object to the juror pool at voir dire or even on appeal. Furthermore, he has shown no prejudice resulting from the exclusion of certain jurors. Mejia-Mesa’s claim amounts to nothing but a “mere conclusory statement” demonstrating neither cause nor actual prejudice. See Johnson, 988 F.2d at 945. The district court did not err in dismissing this claim. III. Excessive Fines Mejia-Mesa next argues that the $750,000 fine imposed upon him in addition to his thirty year" }, { "docid": "22240446", "title": "", "text": "on his motion to strike an affidavit included in the government’s response to his section 2255 motion. We review the denial of a section 2255 petition independently. Walker v. United States, 816 F.2d 1313, 1316 (9th Cir.1987). II In challenging a guilty plea for ineffective assistance of counsel, a defendant must demonstrate “both that his counsel’s performance was deficient and that the deficient performance prejudiced his defense.” United States v. Signori, 844 F.2d 635, 638 (9th Cir.1988) (Signori). “The longstanding test for determining the validity of a guilty plea is ‘whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’ ” Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985) (Hill), quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). “A defendant who pleads guilty upon the advice of counsel may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the range of competence demanded of attorneys in criminal cases.\" Signori, 844 F.2d at 638; see Hill, 474 U.S. at 56-57, 106 S.Ct. at 369-70, citing McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970) (McMann). Ineffectiveness of counsel is a mixed question of fact and law reviewed independently. Signori, 844 F.2d at 638. We likewise review independently the determination of voluntariness. Id. The court denied Shah’s section 2255 motion without conducting an evidentiary hearing. Under section 2255, such a hearing must be granted “[ujnless the motion and the files and record of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255. The court here considered, and rejected, the need to hold an evidentiary hearing even though Shah’s papers requesting a hearing did not reach the district judge until he had already ruled on his section 2255 motion. Where a section 2255 motion is based on alleged occurrences outside the record, no hearing is required if the allegations, “viewed against" }, { "docid": "2989517", "title": "", "text": "on his observation of Andrade-Larrios, and Andrade-Larr-ios’ response to his questions, the district judge specifically found that Andrade-Larr-ios was free of coercive influence. On appeal, Andrade-Larrios argues that the inquiry should have been more searching, because defense counsel said that “it is a very delicate situation.” The judge responded to this by asking “What is so delicate?” He explored the “delicacy” fully, and found that it seemed to be some reluctance by defense counsel to clarify that he was claiming to have an 11(e)(1)(C) deal rather than a mere 11(e)(1)(B) deal. The delicacy, as explained on the record, had nothing to do with duress. D. Effective Assistance Andrade-Larrios argues on appeal that he was denied effective assistance of counsel because his family members paid his lawyers fees, and his lawyer was serving their interests rather than his when he advised him to change his plea. We do not reach the legal issues which this argument might raise, because no factual basis for it was established until the second motion. The judge could have no inkling of this from anything An-drade-Larrios put before him on the first motion. E. Breach of Agreement Andrade-Larrios argues that the prosecutor breached the plea agreement, by prosecuting his brothers anyway. But there is nothing in the record on the first order to support either the proposition that he had a plea agreement that his brothers would not be prosecuted, or even that his brothers were in fact prosecuted. F. Evidentiary Hearing As has been explained, there was nothing in the record to show the district court why it needed an evidentiary hearing to resolve some material factual dispute. The district judge acted within his discretion in denying an evidentiary hearing on the § 2255 motion because the files and records conclusively showed that the movant was not entitled to relief. 28 U.S.C. § 2255; Shah v. United States, 878 F.2d 1156, 1159 (9th Cir.), cert. denied, 493 U.S. 869, 110 S.Ct. 195, 107 L.Ed.2d 149 (1989); Watts v. United States, 841 F.2d 275, 277 (9th Cir.1988). AFFIRMED." } ]

[ { "docid": "23086521", "title": "", "text": "(1st Cir.2004) (quoting Wightman v. Springfield Terminal Ry., 100 F.3d 228, 230 (1st Cir.1996)) (internal quotation marks omitted). B. The First Amendment Claim Public employees do not lose their First Amendment rights to speak on matters of public concern simply because they are public employees. Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Still, those rights are not absolute: “the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti, 126 S.Ct. at 1957. If a court finds the employee has made statements that are within the scope of First Amendment protection, the court must then “balance ... the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); see also, e.g., Waters v. Churchill, 511 U.S. 661, 668, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994); Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987); Connick, 461 U.S. at 150-52, 103 S.Ct. 1684. Garcetti has clarified and expanded on the earlier law. The Supreme Court described the correct analysis as involving a two-step initial inquiry. The first step requires a determination of: whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. Garcetti, 126 S.Ct. at 1958 (citing Connick, 461 U.S. at 147, 103 S.Ct. 1684; Pickering, 391 U.S. at 568, 88 S.Ct. 1731) (citations omitted). Garcetti recognizes that this first step itself has two subparts: (a) that the employee spoke as a citizen and (b) that the speech was on a matter of public concern. Id. If the answer to the Garcetti’s first (two subpart) step is yes, then the possibility of a First Amendment claim arises, and" } ]

[ { "docid": "19900339", "title": "", "text": "Springs, 477 F.3d 1212, 1219 (10th Cir.2007)). B. Garcetti/Pickering Analysis “[T]he First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); see also Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Therefore, “a public employer cannot retaliate against an employee for exercising his constitutionally protected right of free speech.” Dill v. City of Edmond, Okla., 155 F.3d 1193, 1201 (10th Cir.1998) (citing Connick v. Myers, 461 U.S. 138, 146-47, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). When analyzing a free speech claim based on retaliation by an employer, this court applies the five-prong Garcetti/Pickering test. Dixon v. Kirkpatrick, 553 F.3d 1294, 1301-02 (10th Cir.2009). Under the Garcetti/Pickering analysis, First, the court must determine whether the employee speaks pursuant to his official duties. If the employee speaks pursuant to his official duties, then there is no constitutional protection because the restriction on speech simply reflects the exercise of employer control over what the employer itself has commissioned or created. Second, if an employee does not speak pursuant to his official duties, but instead speaks as a citizen, the court must determine whether the subject of the speech is a matter of public concern. If the speech is not a matter of public concern, then the speech is unprotected and the inquiry ends. Third, if the employee speaks as a citizen on a matter of public concern, the court must determine whether the employee’s interest in commenting on the issue outweighs the interest of the state as employer. Fourth, assuming the employee’s interest outweighs that of the employer, the employee must show that his speech was a substantial factor or a motivating factor in a detrimental employment decision. Finally, if the employee establishes that his speech was such a factor, the employer may demonstrate that it would have taken the same action against the employee even in the absence of the protected speech. Brammer-Hoelter, 492 F.3d at 1202-03 (internal quotations" }, { "docid": "6323511", "title": "", "text": "This court reviews a grant of summary judgment de novo. The question before the district court, and this court on appeal, is whether the record, when viewed in the light most favorable to the non-moving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Even assuming Bradley was fired because of his allegations against James, and that his allegations were a matter of public concern, he cannot prevail. This case is controlled by the Supreme Court’s decision in Garcetti v. Ceballos, — U.S. -, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), decided in May 2006, after the March 2006 decision of the district court. Garcetti applies the two-part Pickering test to determine whether a public employee’s speech should receive constitutional protection. See Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). First, did the employee speak as a citizen on a matter of public concern? If the answer to that question is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. We cannot find Bradley spoke as a citizen. Garcetti’s test for whether a person spoke as a citizen or as a public employee comes down to whether the speech was made “pursuant to official responsibilities.” 126 S.Ct. at 1961. “Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.” Id. at 1960; see also McGee v. Pub. Water Supply, Dist. #2 of Jefferson County, Mo., 471 F.3d 918, 921 (8th Cir.2006). As a police officer, Bradley had an official responsibility to cooperate with the investigation Stacks was conducting into the UCAPD’s response to the Hughes Hall incident. His allegations of intoxication against James were made" }, { "docid": "14055225", "title": "", "text": "actionable interest in the subject of the searches and therefore short of alleging a redressable Fourth Amendment violation. And without this, neither the Fourth Amendment claim, see SDI, 568 F.3d at 695, nor the failure-to-train claim, see Bd. of County Com’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 400, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (holding that the municipal policy must be a “moving force” behind the violation of plaintiff’s federally protected right), nor the RICO claim, Canyon County v. Syngenta Seeds, Inc., 519 F.3d 969, 975 (9th Cir.2008) (“A civil RICO plaintiff only has standing if, and can only recover to the extent that, he has been injured in his business or property by the conduct constituting the violation.”), will succeed. C. First Amendment Claims Plaintiffs have asserted two different breeds of First Amendment claims: prior restraint claims and a retaliation claim. 1. Prior Restraint Claims Courts evaluate prior restraints of government employee speech through the lens of Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will County, Illinois, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). United States v. Nat’l Treasury Employees Union, 513 U.S. 454, 466, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995). See also Gibson v. Office of Atty. Gen., State of California, 561 F.3d 920, 926 (9th Cir. 2009). The Pickering test requires the court to balance “the interests ... of a citizen, in commenting on matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Thus, Pickering balancing only applies to speech made “as a citizen on a matter of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Garcetti addressed the distinction between speech made “as a citizen” and speech made “as an employee.” Speech made as an employee is speech that “owes its existence to a public employee’s professional responsibilities.” Id. at 421, 126 S.Ct. 1951. Restricting such speech “simply reflects the exercise" }, { "docid": "13016192", "title": "", "text": "in so speaking outweighs the State’s interest in promoting effective and efficient public service. Pickering v. Bd. of Educ. of Township High School Dist., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). If the answer to both inquiries is yes, the speech is protected. The Court has little doubt that Condiff spoke on a matter of public concern when she and her husband notified both the principal and the superintendent of the sexual harassment of students by a teacher at the high school. See Solomon v. Royal Oak Township, 842 F.2d 862, 865 (6th Cir.1988) (finding that “speech disclosing public corruption is a matter of public interest and therefore deserves constitutional protection.”) (citations omitted); see also Connick, 461 U.S. at 148, 103 S.Ct. 1684 (explaining that statements “seeking] to bring to light actual or potential wrongdoing or breach of public trust on the part of [government employees]” address a matter of public concern). The question is whether she was speaking “as a citizen.” In Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the Supreme Court explained that public employees do not “surrender all their First Amendment rights by reason of their employment.” Id. at 417, 126 S.Ct. 1951; see also Thomas v. Whalen, 51 F.3d 1285, 1291 (6th Cir.1995) (noting that “[fjreedom of speech is not traded for an officer’s badge ...) (quotation omitted). However, it made clear that “[w]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti, 547 U.S. at 421, 126 S.Ct. 1951. This means that if Condiffs reports to the Principal and Superintendent regarding the sexual harassment were made “pursuant to [her] official duties” as a teacher in the Hart County School District, then she was not speaking “as a citizen” and her speech is not protected by the First Amendment. Id. Defendant contends that Condiffs First Amendment retaliation claim is" }, { "docid": "21829047", "title": "", "text": "virtue of government employment.” Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). However, “this does not require a grant of immunity for employee grievances.” Id. at 147, 103 S.Ct. 1684. “[T]he- First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.” Id. at 149, 103 S.Ct. 1684. Thus, First Amendment protection of a public employee’s speech depends on a careful balance “between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs.” Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In Garcetti v. Ceballos, the Supreme Court noted two inquiries in determining whether public employee speech is protected against employer retaliation: The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (quotation omitted), quoted in Lane v. Franks, — U.S. -, 134 S.Ct. 2369, 2378, 189 L.Ed.2d 312 (2014). The Court granted certiorari in Garcetti to determine whether a public employee’s speech criticizing government misconduct—a matter of public concern— was protected from employer retaliation even if made pursuant to the employee’s duties. Id. at 416-17, 126 S.Ct. 1951. The Court ruled such speech unprotected: [Wjhen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. ... Restricting speech that owes its existence to a public employee’s professional responsibilities does" }, { "docid": "14810761", "title": "", "text": "1951, 164 L.Ed.2d 689 (2006)). First, a court must determine “whether the employee spoke as a citizen on a matter of public concern.” Garcetti, 547 U.S. at 418, 126 S.Ct. 1951 (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). Speech is considered protected where it pertains to a “matter of political, social or other concern to the community.” (Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). However, “speech on a purely private matter, such as an employee’s dissatisfaction with the conditions of his employment falls outside the realm of constitutional protection.” Benvenisti 2006 WL 2777274, at *10, 2006 U.S. Dist. LEXIS 73373, at *32 (internal quotation marks and citations omitted). Moreover, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes,” Garcetti, 547 U.S. at 421, 126 S.Ct. 1951, and “the First Amendment does not protect the employee’s speech from discipline or retaliation by the employer.” Weintraub v. Bd. of Educ., 489 F.Supp.2d 209, 219 (E.D.N.Y.2007). “The inquiry into the protected status of speech is one of law, not fact.” Benvenisti 2006 WL 2777274, at *7, 2006 U.S. Dist. LEXIS 73373, at *24 (quoting Connick, 461 U.S. at 148 n. 7, 103 S.Ct. 1684); see also Lewis, 165 F.3d at 163 (“Whether an employee’s speech addresses a matter of public concern is a question of law for the court to decide .... ”). If the answer to the first part of the inquiry is no and the employee’s speech is found to be of a private matter rather than a public one, “the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.” Garcetti, 547 U.S. at 418, 126 S.Ct. 1951 (citing Connick, 461 U.S. at 147, 103 S.Ct. 1684). However, if the answer is yes, the court must “move to the second part of the test, questioning ‘whether the relevant government entity has an adequate justification for treating the employee different ly from any other" }, { "docid": "5196860", "title": "", "text": "B. First Amendment Retaliation Claim In determining whether APS impermissibly retaliated against Ms. Reinhardt in violation of her First Amendment rights, we apply the test from Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Deschenie, 473 F.3d at 1276. Our inquiry in this case is limited to whether Ms. Reinhardt spoke as a citizen or as a public employee. We express no opinion on whether Ms. Reinhardt can meet the other elements of a claim for protected speech, including whether the speech was on a matter of public concern. Garcetti v. Ceballos sets the boundaries of “protected” employee speech, and the parties agree that this is the controlling law. ApltApp. 237. Garcetti recognized that employee speech made pursuant to the employee’s professional duties is not afforded First Amendment protection. 547 U.S. at 421, 126 S.Ct. 1951. We have noted that “[t]he question under Garcetti is not whether the speech was made during the employee’s work hours, or whether it concerned the subject matter of his employment.” Thomas v. City of Blanchard, 548 F.3d 1317, 1323 (10th Cir.2008). The key is “whether the speech was made pursuant to the employee’s job duties or, in other words, whether the speech was commissioned by the employer.” Id. (internal quotation marks and citation omitted). Rather than defining a comprehensive framework for defining the scope of an employee’s duties, the Supreme Court emphasized that the inquiry is “a practical one,” noting that “formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform.” Garcetti 547 U.S. at 424-25, 126 S.Ct. 1951. Post Garcetti, this court has generally identified two factors that suggest an employee was speaking as a pri vate citizen rather than pursuant to her job responsibilities: (1) the employee’s job responsibilities did not relate to reporting wrongdoing and (2) the employee went outside the chain of command when reporting the wrongdoing. See Thomas, 548 F.3d at 1324-25; Brammer-Hoelter v. Twin Peaks Charter Acad., 492" }, { "docid": "23284078", "title": "", "text": "Amendment. The first is that they were retaliated against for exercising their freedom of speech. The second is that they were retaliated against for exercising their freedom of association. The third is that Dr. Marlatt’s blanket prohibition on Plaintiffs discussing Academy matters in public and her statement that she would prefer Plaintiffs not meet together in public constituted an illegal prior restraint on speech and association. These are distinct claims. See Shrum v. City of Coweta, 449 F.3d 1132, 1138 (10th Cir.2006) (distinguishing between freedom of speech and freedom of association retaliation claims); Milwaukee Police Ass’n v. Jones, 192 F.3d 742, 749-50 (7th Cir.1999) (distinguishing between freedom of speech retaliation claims. and prior restraint claims). A. Freedom of Speech Retaliation Claim “When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” Garcetti v. Ceballos, - U.S. -, 126 S.Ct. 1951, 1958, 164 L.Ed.2d 689 (2006). At the same time, “[t]he First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens.” Id. Consequently, when government employees speak on matters of public concern, “they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” Id.; see also Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). After the Supreme Court’s recent decision in Garcetti it is apparent that the “Pickering ” analysis of freedom of speech retaliation claims is a five step inquiry which we now refer to as the “Garcetti/Pickering” analysis. First, the court must determine whether the employee speaks “pursuant to [his] official duties.” Garcetti 126 S.Ct. at 1960; see also Mills, 452 F.3d at 647 (“Garcetti ... holds that before asking whether the subject-matter of particular speech is a topic of public concern, the court must decide whether the plaintiff was speaking ‘as a citizen’ .... ”). If the employee speaks pursuant to his official duties, then there is no constitutional protection because the restriction on speech" }, { "docid": "8434351", "title": "", "text": "at issue is the First Amendment right of public employees to speak as citizens on matters of public concern. See Pickering v. Bd. of Ed. of Twp. High Sch. Dist., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). “Nevertheless, a citizen who accepts public employment ‘must accept certain limitations on his or her freedom.’ ” Borough of Duryea, Pa. v. Guarnieri, — U.S. —, 131 S.Ct. 2488, 2494, 180 L.Ed.2d 408 (2011) (citing Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)). Thus, to state a prima facie First Amendment retaliation case, Watts must show that “(1) he suffered an adverse employment action; (2) he spoke as a citizen on a matter of public concern; (3) his interest in the speech outweighs the government’s interest in the efficient provision of public services; and (4) the speech precipitated the adverse employment action.” Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir.2007) (internal quotations and citation omitted). In Garcetti v. Ceballos, the United States Supreme Court added a threshold question to this analysis by asking whether the public employee spoke pursuant to his or her official duties. 547 U.S. at 421, 126 S.Ct. 1951. The Court found that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.” Id. The parties dispute this threshold issue and whether the transfer was an adverse employment action that his speech precipitated. The remaining elements are neither disputed nor examined. 1. Whether Watts Spoke as a Private Citizen or Pursuant to Duty Under Garcetti the “first task is to determine whether [Plaintiffs] speech was part of [his] official duties, that is whether [he] spoke as a citizen or as part of [his] public job.” Davis v. McKinney, 518 F.3d 304, 312 (5th Cir.2008) (citing Williams v. Dallas Ind. Sch. Dist., 480 F.3d 689, 692 (5th Cir.2007)). Two primary sub-issues exist: is the Garcetti question one of law or fact and did Watts speak pursuant to duty. a. Question of Law or Fact Whether the Garcetti" }, { "docid": "20506159", "title": "", "text": "whether the speech that prompted her termination was constitutionally protected. Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). The first part of that inquiry, and the one the district court found dispositive, asks whether Meade’s speech related to a matter of public concern. Id. A teacher such as Meade cannot be fired for exercising her right of free speech on such matters. Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., 391 U.S. 563, 574, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). If, however, Meade’s overall point in writing the letter was to express a purely personal grievance, then the First Amendment will not help her. Kristofek v. Vill. of Orland Hills, 712 F.3d 979, 986 (7th Cir.2013); see also Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The Supreme Court has defined “public concern” to mean “legitimate news interest,” or “a subject of general interest and of value and concern to the public at the time of publication.” City of San Diego v. Roe, 543 U.S. 77, 83-84, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (per curiam). In deciding whether Meade’s letter fits this description, we consider its content, its form, and the context in which it was written. Connick, 461 U.S. at 147-48, 103 S.Ct. 1684. Of these three considerations, content is the most important. Chaklos v. Stevens, 560 F.3d 705, 714 (7th Cir.2009). We also must take care not to place undue weight on Meade’s apparent motive in writing her letter, in particular whether it was personal or not. Rather, we look at “the overall objective or point ” of the letter to determine whether it discussed matters of public concern. Kristofek, 712 F.3d at 985. (One side note: although Garcetti held that a public employee’s statements made pursuant to her official duties cannot provide the basis for a retaliation claim, see 547 U.S. at 421, 126 S.Ct. 1951, Moraine Valley concedes that Meade had no employer-imposed duty to write her letter.) Applying these standards, we have no trouble concluding that" }, { "docid": "9923423", "title": "", "text": "criminal activity was not constitutionally protected conduct. In a landmark case on the issue of whether conduct is constitutionally protected, Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the Supreme Court of the United States held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcet-ti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). By contrast, “[w]hen an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences.” Id. at 423, 126 S.Ct. 1951; see also Pickering v. Bd. of Educ. of Tp. High Sch. Dist. 205, Will Cnty. Illinois, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (“The problem in any case is to arrive at a balance between the interests of the ... citizen, in commentihg upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”). In the wake of Garcetti, the United States Court of Appeals for the Third Circuit has held that: A public employee’s statement is protected activity only where (1) the employee spoke as a citizen (2)’ about a matter of public concern and (3) “the government employer did not have an adequate justification for treating the employee differently from any other member of the general public as a result of the statement he made.” Hara v. Pennsylvania Dept. of Educ., 492 Fed.Appx. 266, 267 (3d Cir.2012) (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir.2006) (internal quotations omitted)). Accordingly, the Third Circuit also explained that a court should “proceed through three steps to ascertain whether a public employee’s speech is protected by the First Amendment.” Morris v. Philadelphia Hous. Auth., 487 Fed.Appx. 37, 39 (3d Cir.2012). The Court delineated the steps, writing: First, as a threshold issue, we" }, { "docid": "14810760", "title": "", "text": "judgment should be granted with respect to plaintiffs employment discrimination claims pursuant to 42 U.S.C. §§ 1981 and 1983 as well as his Monell claim. VII. First Amendment Retaliation To establish a First Amendment retaliation claim under Section 1983, a public employee must demonstrate the following: (1) the speech at issue was protected; (2) he suffered an adverse employment action; and (3) “the speech at issue was a substantial or motivating factor in the adverse employment action.” Benvenisti v. City of New York, No. 04 Civ. 3166, 2006 WL 2777274, at *7, 2006 U.S. Dist. LEXIS 73373, at *21-22 (S.D.N.Y. Sept. 23, 2006) (citing cases); see also Healy v. City of New York, No. 04 Civ. 7344, 2006 WL 3457702, at *4, 2006 U.S. Dist. LEXIS 86344, at *11 (S.D.N.Y. Nov. 22, 2006) (citing cases). In determining whether a public employee’s speech is protected, courts must engage in a two-part inquiry. See Healy, 2006 WL 3457702, at *4, 2006 U.S. Dist. LEXIS 86344, at *12 (citing Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)). First, a court must determine “whether the employee spoke as a citizen on a matter of public concern.” Garcetti, 547 U.S. at 418, 126 S.Ct. 1951 (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). Speech is considered protected where it pertains to a “matter of political, social or other concern to the community.” (Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). However, “speech on a purely private matter, such as an employee’s dissatisfaction with the conditions of his employment falls outside the realm of constitutional protection.” Benvenisti 2006 WL 2777274, at *10, 2006 U.S. Dist. LEXIS 73373, at *32 (internal quotation marks and citations omitted). Moreover, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes,” Garcetti, 547 U.S. at 421, 126 S.Ct. 1951, and “the First Amendment does not protect the employee’s speech from discipline or retaliation by the employer.” Weintraub v. Bd." }, { "docid": "19966824", "title": "", "text": "to faculty governance speech has been limited, however, by the increasing application by courts of [the] public-employee speech doctrine to faculty claims. Both the Pickering balancing test and the Connick public concern test in particular have been used to deny constitutional protection to faculty governance speech. [Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).] The Supreme Court’s latest words on academic freedom appear in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). In that case, a deputy district attorney filed a 42 U.S.C. § 1983 complaint against officials in a district attorney’s office, alleging that he was subject to adverse employment actions in retaliation for engaging in protected speech, that is, for writing a memorandum in which he recommended dismissal of a case on the basis of purported governmental misconduct. The Court held that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. The Court concluded that the deputy district attorney did not speak as a citizen when he wrote his memorandum and, thus, his speech was not protected by the First Amendment. Garcetti, 547 U.S. at 421-22, 126 S.Ct. 1951. In a dissent joined by Justice Stevens and Justice Ginsburg, Justice Souter raised the specter of academic freedom in expressing concern about the potential reach of the majority opinion in Garcetti: Consider the breadth of the [majority’s formulation of the public-employee speech doctrine]: “Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.” [Maj. op., 547 U.S. at 421-22, 126 S.Ct. 1951.] This ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor, and I have to" }, { "docid": "16834008", "title": "", "text": "was the cause of the City forcing her to resign, which in her view makes out a First Amendment claim. Defendant argues that under the Supreme Court’s ruling in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), Plaintiffs First Amendment claim should be dismissed. This Court finds that Garcetti controls the outcome of Plaintiffs First Amendment claim against the City. In Garcetti, the Court, relying on Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and its progeny, addressed the proper inquiries that guide First Amendment analysis for public employee speech. A court is to look at: whether the employee spoke as a citizen as a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. This consideration reflects the importance of the relationship between the speaker’s expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations. See Garcetti, 547 U.S. at 418, 126 S.Ct. 1951 (citations and internal quotation marks omitted). The Court went on to “hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id. at 421, 126 S.Ct. 1951. In defining the scope of an employee’s official duties, the Court noted that: [t]he proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to" }, { "docid": "20833579", "title": "", "text": "and leaving credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts to the jury. Gonzalez, 689 F.3d at 474-75. III. DISCUSSION A. First Amendment Speech Hurst’s first argument on appeal is that the district court erroneously granted Lee County’s Rule 50 motion because Hurst’s speech was not employee speech pursuant to his job duties and should have been considered citizen speech protected by the First Amendment. We disagree. While government employees are not stripped of their First Amendment right to freedom of speech by virtue of their employment, this right is not without exception. Pickering v. Bd. of Educ. of Tp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). A four-pronged test is used to determine whether the speech of a public employee is entitled to constitutional protection from employer discipline. See Juarez v. Aguilar, 666 F.3d 325, 332 (5th Cir.2011). A plaintiff must establish that: (1) he suffered an adverse employment decision; (2) his speech involved a matter of public concern; (3) his interest in speaking outweighed the governmental defendant’s interest in promoting efficiency; and (4) the protected speech motivated the defendant’s conduct. Id. The Supreme Court noted in Garcetti v. Ceballos that, for an employee’s speech to qualify for First Amendment protection, he must be speaking as a citizen on a matter of public concern. 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). This court has characterized that requirement — that he be speaking as a citizen on a matter of public concern — as a threshold layer to the second prong of the retaliation test. See Davis v. McKinney, 518 F.3d 304, 312 (5th Cir.2008). Garcetti further states that, when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Garcetti, 547 U.S. at 421, 126 S.Ct. 1951. In the past, we have acknowledged that Garcetti does not explicate what it means to speak ‘pursuant to’ one’s" }, { "docid": "4473432", "title": "", "text": "his eventual termination.''). . 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). . 547 U.S. 410, 419, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). . Id. at 421, 126 S.Ct. 1951. . Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 692-93 (5th Cir. 2007) (\"Pickering, however, is now inapposite. The Supreme Court's recent pronouncement in Garcetti v. Ceballos added a threshold layer to the Pickering balancing test. Under Garcetti, we must shift our focus from the content of the speech to the role the speaker occupied when he said it.” (citation omitted)). . Garcetti, 547 U.S. at 417, 126 S.Ct 1951. . Id. at 418, 126 S.Ct. 1951 (citing Pickering, 391 U.S. at 574, 88 S.Ct. 1731). . Id. . Id. . Id. . Id. . Id. at 419, 126 S.Ct. 1951. The latter justification appears to prevent confusion over whether a public employee who routinely speaks on behalf of the government is, in fact, speaking on behalf of the government or on his or her own behalf. As discussed infra, Garcetti expounds on this. . Id. . Id. at 420-21, 126 S.Ct. 1951 (emphasis added). . Id. at 421, 126 S.Ct. 1951 (\"We hold that when public employees make statements pursuant to their official duties ... the Constitution does not insulate their communications from employer discipline.”); Discipline, Merriam-Webster, http://www.merriamwebster. com/dictionary/discipline (defining \"discipline” as \"control gained by enforcing obedience or order” or \"a rule or system of rules governing conduct or activity”). . Id. at 420-21, 126 S.Ct. 1951. While such speech might very well relate to the employee’s official duties, it is not necessarily made pursuant to those duties. . Id. at 421, 126 S.Ct. 1951. . Id. at 424, 126 S.Ct. 1951. . In Reilly v. City of Atlantic City, the Third Circuit explained that, when an individual’s official duties as a public employee overlap with his duties as a citizen, the individual speaks as a citizen. 532 F.3d 216, 231 (3d Cir. 2008) (\"That an employee’s official responsibilities provided the initial impetus to [speak] is immaterial to his/her independent obligation as a citizen...." }, { "docid": "17609476", "title": "", "text": "review is of course de novo.” Id. at 349. B. Discussion To rebut a defendant’s qualified immunity defense, the plaintiff must show: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. Al-Kidd, — U.S. -, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (citation omitted). A court may consider either prong of the qualified immunity analysis first. Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). We begin by addressing the first prong — whether Kil-patrick’s reprimands violated Gibson’s First Amendment right to free expression. The Supreme Court has long held that government employees are not stripped of their right to freedom of expression by virtue of their employment. Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). This right is not absolute, though, and we utilize a four-pronged test to determine whether the speech of a public employee is entitled to constitutional protection. See Juarez v. Aguilar, 666 F.3d 325, 332 (5th Cir.2011). A plaintiff must establish that: (1) he suffered an adverse employment decision; (2) his speech involved a matter of public concern; (3) his interest in speaking outweighed the governmental defendant’s interest in promoting efficiency; and (4) the protected speech motivated the defendant’s conduct. Id. (citations omitted). In 2006, the Supreme Court added what we have characterized as a “threshold layer” to the second prong of the retaliation test. See Davis v. McKinney, 518 F.3d 304, 312 (5th Cir.2008) (describing Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)). Under this prong, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti 547 U.S. at 421, 126 S.Ct. 1951. While the court must consider factual circumstances to determine whether speech is official, the determination is still" }, { "docid": "5196859", "title": "", "text": "her workload to reduce her salary. ApltApp. 182-85. The state investigation concluded that APS was maintaining inaccurate lists, which resulted in qualified special education students not obtaining services. ApltApp. 204. Furthermore, there is a factual dispute as to how APS actually calculates “extended contracts” and whether Ms. Reinhardt qualified for such a contract during 2004-2006. Aplt.App. 285. APS has stated that an SLP must have 48 students to qualify for an extended contract. ApltApp. 325. At other times APS has said 35 to 40 students is a full-time caseload. ApltApp. 315. Yet at other times, APS maintains that number of students is just one factor in determining caseload because some students require more intensive services. ApltApp. 312. While APS has provided data about the hourly pay rate for SLPs, ApltApp. 285, it has provided no information about how SLP caseloads or salaries are determined at Rio Grande High. Without expressing any opinion on the merits, we think Ms. Reinhardt has offered sufficient evidence of pretext to withstand summary judgment on her § 504 retaliation claim. B. First Amendment Retaliation Claim In determining whether APS impermissibly retaliated against Ms. Reinhardt in violation of her First Amendment rights, we apply the test from Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Deschenie, 473 F.3d at 1276. Our inquiry in this case is limited to whether Ms. Reinhardt spoke as a citizen or as a public employee. We express no opinion on whether Ms. Reinhardt can meet the other elements of a claim for protected speech, including whether the speech was on a matter of public concern. Garcetti v. Ceballos sets the boundaries of “protected” employee speech, and the parties agree that this is the controlling law. ApltApp. 237. Garcetti recognized that employee speech made pursuant to the employee’s professional duties is not afforded First Amendment protection. 547 U.S. at 421, 126 S.Ct. 1951. We have noted that “[t]he question under Garcetti is not whether the speech was made during" }, { "docid": "9404265", "title": "", "text": "148 F.3d 1126, 1133 (D.C.Cir.1998)). “When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (citing Waters v. Churchill, 511 U.S. 661, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994)). Nevertheless, “public employees do not surrender all their First Amendment rights by reason of their employment.” Id. at 417, 126 S.Ct. 1951. Accordingly, a public employee who claims retaliation in violation of her First Amendment rights must meet a four-factor test: First, the public employee must have spoken as a citizen on a matter of public concern. [Garcetti, 547 U.S. at 418, 126 S.Ct. 1951; Tao, 27 F.3d at 638-39]. “Second, the court must consider whether the governmental interest in ‘promoting the efficiency of the public services it performs through its employees’ ... outweighs the employee’s interest, ‘as a citizen, in commenting upon matters of public concern’....” O’Donnell, 148 F.3d at 1133 (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568[, 88 S.Ct. 1731, 20 L.Ed.2d 811] (1968)). Third, the employee must show that her speech was “a substantial or motivating factor in prompting the retaliatory or punitive act.” Id. Finally, the employee must refute the government employer’s showing, if made, that it would have reached the same decision in the absence of the protected speech. See id. (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287[, 97 S.Ct. 568, 50 L.Ed.2d 471] (1977)). Wilburn, 480 F.3d at 1149. “The first two factors ... are questions of law for the court to resolve, while the latter are questions of fact ordinarily for the jury.” Tao, 27 F.3d at 639 (citing Hall, 856 F.2d at 258). Defendants argue that Plaintiff cannot establish the first of these four factors, i.e., that she “spoke as a citizen on a matter of public concern.” In Garcetti, the Supreme Court clarified that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution" }, { "docid": "4159800", "title": "", "text": "Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)) (omission in original). Third, the employee must “show that the protected expression was a substantial or motivating factor in the adverse employment decision.” Id. at 45. If all three parts of the inquiry are resolved in favor of the plaintiff, the employer may still escape liability if it can show that “it would have reached the same decision even absent the protected conduct.” Rodriguez-Garcia, 610 F.3d at 765-66 (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). The Court must first determine whether the speech touched upon a matter of public concern. Where speech relates to a matter of inherent public concern, such as official malfeasance or the neglect of duties, this inquiry is confined to the subject matter of the speech. See Curran, 509 F.3d at 46; Jordan v. Carter, 428 F.3d 67, 73 (1st Cir.2005). Here, Decotiis informed the parents of children receiving speech and language services from CDS-Cumberland, the public agency charged with providing these services, that CDS-Cumberland may have been withholding certain services to which the children were legally entitled. She also urged the parents to contact advocacy groups for guidance on the matter. The subject matter of her speech plainly relates to a matter of inherent concern, and we therefore easily conclude that Decotiis’s speech touched upon a matter of public concern. However, whether Decotiis was speaking as a citizen, and the merits of the Pickering balancing test, are up for debate. 1. Garcetti Analysis In Garcetti, the Supreme Court held that public employees do not speak as citizens when they “make statements pursuant to their official duties,” and that accordingly, such speech is not protected by the First Amendment. 547 U.S. at 421, 126 S.Ct. 1951. In Garcetti itself, there was no dispute about whether the speech in question had been made pursuant to the plaintiffs employment duties, and so the Court noted that it had “no occasion to articulate a comprehensive framework for defining the scope of an" } ]

[ { "docid": "12299923", "title": "", "text": "federal government employers under the Act, whether brought under section 791 or 794, must satisfy “the requirement of exhaustion of administrative remedies in the manner prescribed by section [794a(a)(l) ] and thus by Title VII.” Milbert, 830 F.2d at 357. We think this conclusion goes far to support the district court’s reasoning that Title VII caselaw must be consulted in considering the application of the Rehabilitation Act to uniformed military personnel. The reasons underlying the Title VII “military exception” have been well stated by Judge Fletcher for the Ninth Circuit in Gonzalez, 718 F.2d at 927-29, and need not be repeated here. See also Johnson v. Alexander, 572 F.2d 1219, 1223-24 (8th Cir.) (Henley, J.), cert. denied, 439 U.S. 986, 99 S.Ct. 579, 58 L.Ed.2d 658 (1978). As noted above, this Court has adopted that exception. Stinson, 821 F.2d at 1539, 1541. Just as it would be incongruous to require persons claiming discrimination on grounds of sex, race, religion, or national origin — but not handicapped discrimination claimants — to follow Title VII procedures in suing federal employers, so it would be incongruous to allow uniformed military personnel to bring discrimination claims against the military based on handicap, when statutory claims based on sex, race, religion, or national origin are barred. Any doubt we might entertain on this issue is dispelled by Smith v. Christian, 763 F.2d 1322 (11th Cir.1985), in which this Court rejected a section 794 claim brought against the Navy by an individual who was denied a commission in the Naval Reserve Medical Service Corps because he was missing his right index finger. Without addressing the issue whether the claimant had a cause of action against the military under section 794 to begin with, Smith found that section 794 did not override the Navy’s countervailing statutory authority to prescribe physical qualifications for enlistees, an area over which we found “Congress has given the Executive Branch wide latitude.” Smith, 763 F.2d at 1325. Smith found the Navy’s authority specifically rooted in two statutes, 10 U.S.C.A. § 591(b) (West 1983) and 10 U.S.C.A. § 5579(a) (West 1959). See Smith," } ]

[ { "docid": "20749440", "title": "", "text": "295, 299 (5th Cir.2000) (ART discharged for failure to maintain his position in the reserve forces); Hupp v. U.S. Dep’t of the Army, 144 F.3d 1144, 1148 (8th Cir.1998) (plaintiff denied a National Guard technician position through an application process involving consideration of military qualifications); Mier v. Owens, 57 F.3d 747, 748 (9th Cir.1995) (National Guard technician failed to receive a military promotion). Even under the tests used in other circuits, Bowers’s claims are barred. In response to the Secretary’s motion, Bowers did not dispute or otherwise respond to the contention that Majors Sturdevant and Co-burn supervised in both her military and civilian capacities. See Fisher v. Peters, 249 F.3d 433, 443-44 (noting that the plaintiff challenged conduct by supervisors who reviewed her in both her military and civilian positions); Willis v. Roche, 256 Fed.Appx. 534, 537 (3d Cir.2007) (noting that the ART challenged conduct by an officer supervising him in both his military and civilian capacities). Bowers contends on appeal that Majors Sturdevant and Coburn did not supervise her in her military capacity and were not in her military side chain of command; however, it is not disputed that she held a military rank in her reserve unit, and that her claims challenge the conduct of superi- or military officers serving at the same military station, if not within the same unit, in a direct supervisory capacity. Thus, any investigation into the allegedly discriminatory and retaliatory actions by these officers necessarily threatens an intrusion into officer-subordinate relationships and the “unique structure” of the military establishment. See Mier, 57 F.3d at 749-50 (“Military personnel cannot sue superior officers to recover damages for alleged constitutional violations because the ‘relationship between enlisted military personnel and their superior officers ... is at the heart of the necessarily unique structure of the Military Establishment.’ ” (quoting Chappell v. Wallace, 462 U.S. 296, 300, 305, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983))); cf. Overton, 373 F.3d at 96 (“Any attempt surgically to dissect and analyze the civilian relationship between Overton and Fletcher, with its military dimensions, moreover, would itself threaten to intrude into their military" }, { "docid": "21967101", "title": "", "text": "under other similar discrimination statutes as non-justiciable. See, e.g., Fisher v. Peters, 249 F.3d 433 (6th Cir.2001); Brown v. United States, 227 F.3d 295 (5th Cir.2000); Mier v. Owens, 57 F.3d 747 (9th Cir.1995); Wright v. Park, 5 F.3d 586 (1st Cir.1993). Although Mier and Wright were decided before the current version of § 10216(a) was enacted in 1996, Fisher and Brown, which were decided after 1996, did not discuss the aforementioned language contained in § 10216(a) and the weight of such language in overcoming those courts’ justiciability concerns. In our view, given the broad and unambiguous language contained in § 10216(a), Congress articulated its intention that dual status technicians be treated in the same manner as other federal civilian employees, including having rights under the Equal Pay Act. Given this clear direction from Congress, we must follow it. See Chappell v. Wallace, 462 U.S. 296, 304, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (stating that Congress is the constitutionally authorized source of authority over the military system of justice). Moreover, given the plain language of § 10216(a), we have no discretion not to adjudicate Jentoft’s rights under the Equal Pay Act, even under the Feres doctrine, which is a judicially-created doctrine. The so-called Feres doctrine arose from the Supreme Court decision in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), which held that the government was not liable under the Federal Tort Claims Act for “injuries to servicemen arising out of or are incident to [military] service.” Id. at 146, 71 S.Ct. 153. That holding of Feres was later extended beyond the Tort Claims Act to recognize the “unique relationship between the government and military personnel,” and the disruption to that relationship that could result if a “soldier were allowed to hale his superiors into court.” Chappell, 462 U.S. at 299, 304, 103 S.Ct. 2362. That understanding of Feres, by itself, would seem to preclude a court from adjudicating a claim brought by a dual status technician such as Jentoft against the government based on acts that were incident to her military service." }, { "docid": "20749439", "title": "", "text": "a military nexus sufficient to bar such claims. See, e.g., Williams v. Wynne, 533 F.3d 360, 368 (5th Cir.2008) (ART tested positive for cocaine use while on military status and the decision to discharge him as a result was, therefore, a military personnel management decision); Walch v. Adjutant Gen.’s Dep’t of Tex., 533 F.3d 289, 292 (5th Cir.2008) (National Guard technician discharged from his military position in the Texas Air National Guard); Willis v. Roche, 256 Fed.Appx. 534, 537 (3d Cir.2007) (ART challenged conduct by an officer supervising him in both his military and civilian capacities); Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 96 (2d Cir.2004) (National Guard technician alleged misconduct by his supervisor, who was his immediate military superior, occurring while plaintiff was working on a military base, in military uniform, to ensure the military’s airlift capacity); Luckett v. Bure, 290 F.3d 493, 499 (2d Cir.2002) (dual status technician transferred out of his position in the reserve forces by his military supervisors); Brown v. United States, 227 F.3d 295, 299 (5th Cir.2000) (ART discharged for failure to maintain his position in the reserve forces); Hupp v. U.S. Dep’t of the Army, 144 F.3d 1144, 1148 (8th Cir.1998) (plaintiff denied a National Guard technician position through an application process involving consideration of military qualifications); Mier v. Owens, 57 F.3d 747, 748 (9th Cir.1995) (National Guard technician failed to receive a military promotion). Even under the tests used in other circuits, Bowers’s claims are barred. In response to the Secretary’s motion, Bowers did not dispute or otherwise respond to the contention that Majors Sturdevant and Co-burn supervised in both her military and civilian capacities. See Fisher v. Peters, 249 F.3d 433, 443-44 (noting that the plaintiff challenged conduct by supervisors who reviewed her in both her military and civilian positions); Willis v. Roche, 256 Fed.Appx. 534, 537 (3d Cir.2007) (noting that the ART challenged conduct by an officer supervising him in both his military and civilian capacities). Bowers contends on appeal that Majors Sturdevant and Coburn did not supervise her in her military capacity and" }, { "docid": "20749420", "title": "", "text": "his superior officers. Id. at 679, 107 S.Ct. 3054. The Court declined to limit Feres to claims by officers against their superiors because even an inquiry into whether a suit questions “military discipline and decisionmaking would itself require judicial inquiry into, and hence intrusion upon, military matters.” Id. at 682-83, 107 S.Ct. 3054. This Court extended the analysis in Feres and Chappell to discrimination claims brought by military personnel pursuant to Title VII and the Rehabilitation Act in Coffman v. Michigan, 120 F.3d 57 (6th Cir.1997). See id. at 59 (“Consistent with the reasoning in Chappell, courts of appeals have consistently refused to extend statutory remedies available to civilians to uniformed members of the armed forces absent a clear direction from Congress to do so.”). By its terms, 42 U.S.C. § 2000e-16(a) applies to all personnel actions affecting “employees” of the “military departments.” Id. However, “[t]he Equal Employment Opportunity Commission and the circuits that have considered this statute have interpreted it to apply only to suits by civilian employees of the military departments, and not members of the armed forces.” Fisher v. Peters, 249 F.3d 433, 438 (6th Cir.2001); see Brown v. United States, 227 F.3d 295, 298 n. 3 (5th Cir.2000) (citing cases); 29 C.F.R. § 1614.103(d)(1). C. Sixth Circuit Precedent This Court has never considered claims brought under Title VII or the Rehabilitation Act by an ART. In Leistiko v. Stone, 134 F.3d 817 (6th Cir.1998), the plaintiff alleged that he had been discharged from his position as a National Guard technician in violation of the Rehabilitation Act. Id. at 818. Like an ART, a National Guard technician occupies a hybrid civilian/military position. National Guard technicians are federal civilian employees that must, as a condition of their employment, be members of the National Guard. 32 U.S.C. § 709(b)(2); 10 U.S.C. § 10216(a)(1)(B). This Court affirmed the district court’s grant of summary judgment in favor of the defendant because “ ‘[e]very court having occasion closely to consider the capacity of National Guard technicians has determined that capacity to be irreducibly military in nature.’ ” Leistiko, 134 F.3d at 821" }, { "docid": "1010067", "title": "", "text": "incident to service.” Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 95 L.Ed. 152 (1950); see also Meister v. Texas Adjutant Gen.’s Dep’t, 233 F.3d 332, 336 (5th Cir. 2000). The Feres Court held the FTCA waived sovereign immunity, “putting the United States government in the same position as any other defendant.” Meister, 233 F.3d at 336. After Feres, the Supreme Court “authorized a suit for damages against federal officials whose actions violated an individual’s constitutional rights.... ” Chappell v. Wallace, 462 U.S. 296, 298, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (citing Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)). In Chappell, though, the Court limited the Bivens remedy by holding “that enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations.” Id. at 305, 103 S.Ct. 2362. The Court later reaffirmed the applicability of the Feres incident-to-service test, requiring courts to abstain from interfering in cases arising .under such circumstances. United States v. Stanley, 483 U.S. 669, 683-84, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987). This court has categorized the Feres doctrine as one of justiciability. Filer v. Donley, 690 F.3d 643, 648-50 (5th Cir. 2012). Although the Supreme Court has only considered this issue in the context of FTCA and Bivens claims, we have held that Feres bars all lawsuits based on injuries incident to military service. See Crawford v. Texas Army Nat’l Guard, 794 F.2d 1034, 1035-36 (5th Cir. 1986). Relevant to this case, claims brought directly under state law are barred by Feres. Holdiness v. Stroud, 808 F.2d 417, 426 (5th Cir. 1987). In Holdiness, the plaintiff filed suit under 42 U.S.C. §§ 1983, 1985; the FTCA; and Louisiana state law. Id. at 420. We followed Chappell’s, command to hesitate before interfering in the relationships between military personnel and the preference for having those disputes adjudicated under the “unique structure of the military establishment.” Id. at 426. We held that judicial review of a state-law tort claim arising in this" }, { "docid": "6448017", "title": "", "text": "service.” Id. All other circuits to address the issue have also held that Title VII is inapplicable to uniformed members of the military. See, e.g., Doe v. Garrett, 903 F.2d 1455, 1461-62 (11th Cir.1990) (barring naval reserve member’s Rehabilitation Act claim that his release from active-duty military was due to discrimination based on his handicap), cert. denied, 499 U.S. 904, 111 S.Ct. 1102, 113 L.Ed.2d 213 (1991); Roper v. Department of Army, 832 F.2d 247, 248 (2d Cir.1987). (barring army reserve member’s claim that ■ she was not promoted due to racial and sexual discrimination); Stinson v. Hornsby, 821 F.2d 1537, 1541 (11th Cir.1987) (barring national guard member’s claim that his discharge was due to racial discrimination), cert. denied, 488 U.S. 959, 109 S.Ct. 402, 102 L.Ed.2d 390 (1988); Taylor v. Jones, 653 F.2d 1193, 1200 (8th Cir.1981) (barring national guard member’s claim, that she was demoted due to racial discrimination); Johnson v. Alexander, 572 F.2d 1219, 1223-24 (8th Cir.) (barring army applicant’s claim that he was rejected due to racial discrimination), cert. denied, 439 U.S. 986, 99 S.Ct. 579, 58 L.Ed.2d 658 (1978). This interpretation of § 2000e-16(a) is con sistent with § 1614.103(d)(1), which excludes uniformed members of the military departments from coverage. Therefore, § 1614.108(d)(1) does not conflict with § 2000e-16. Hodge also argues that because “MWR is a program operated by the U.S. Navy largely out of non-appropriated funds, using largely civilian employees,” it is “thus a 5 U.S.C. Sec. 105 military dept.” This argument is negated by the plain language of the relevant statutes. Section 2000e-16(a) provides coverage for employees or applicants for employment in “military departments as defined in section 102” or in “executive agencies as defined in section 105 ... (including employees and applicants for employment who are paid from nonappropriated funds)_” The plain language of § 2000e-16(a) makes it clear that a “military department” must come under the definition of § 102 to be covered by Title VII. Section 102 does not distinguish between military departments operated out of appropriated funds and those using nonappropriated funds. Furthermore,- § 105 defines an executive" }, { "docid": "11987085", "title": "", "text": "the Feres doctrine to Section 1983 claims that are incident to military service, in a case brought by a Texas National Guardsman. Crawford v. Tex. Army Nat’l Guard, 794 F.2d 1034, 1035-36 (5th Cir.1986). Finally, we also have held that Title VII claims that originate from military status are barred by Feres. Brown v. United States, 227 F.3d 295, 299 (5th Cir.2000). In summary, then, each category of claim brought by Major Walch has been held subject to Feres in certain circumstances. Walch argues his circumstances are distinguishable primarily because he is a dual-status Guardsman and a federal technician. The discrimination against him allegedly occurred during his civilian work. Consequently, we find this an appropriate point to discuss the details of his employment. The National Guard Technician Act, Pub.L. No. 90-486, 82 Stat. 755 (Aug. 13, 1968), created an unusual status, mixing state command with federal employment, combining civilian job positions with military leadership: Congress has authorized the use of National Guard technicians since the National Defense Act of 1916. Previously defined as “caretakers and clerks” with duties limited to maintenance of National Guard supplies and equipment, technicians gradually expanded their role “to provide support in the administration and training of the National Guard military organization and for the day-to-day maintenance and repair of equipment which cannot be accomplished during normal military training periods.” Prior to 1968, all technicians, except those in the District of Columbia, were state employees paid with federal funds; approximately ninety-five percent of the technicians held dual status as members of the National Guard. In the National Guard Technicians Act of 1968, Congress converted technicians to federal employee status to provide them a uniform system of federal salaries, retirement, fringe benefits, and to clarify their status under the Federal Tort Claims Act (FTCA). Further, this legislation sought to recognize both the military and state characteristics of the National Guard by providing administrative authority to the states over the technicians. In Perpich v. Department of Defense, [496 U.S. 334, 348, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990),] the Supreme Court noted that National Guard personnel “must keep" }, { "docid": "19340870", "title": "", "text": "for enlistment in the National Guard that is provided to federal armed forces: We have previously held that “neither Title VII nor its standards are applicable to persons who enlist or apply for enlistment in any of the Armed Forces of the United States.” Johnson v. Alexander, 572 F.2d 1219, 1224 (8th Cir.), cert. denied, 439 U.S. 986, 99 S.Ct. 579, 58 L.Ed.2d 658 (1978). We do not see any significant distinction, for Title VII purposes, between a member of the Army or Air Force and a member of the reserve component of those forces, the National Guard. In neither case is the relationship between the government and the member that of employer-employee; military service differs materially from civilian employment, whether public or private, and is not appropriately government by Title VII. Taylor v. Jones, 653 F.2d 1193, 1200 (8th Cir.1981) (citing Johnson, 572 F.2d at 1223-24); accord Stinson v. Hornsby, 821 F.2d 1537, 1539 (11th Cir.1987) (characterizing a full-time uniformed member of the Alabama National Guard as “military personnel,” rather than state employee, which rendered Title VII inapplicable). The Sixth Circuit has extended that line of cases to bar uniformed members of the Michigan National Guard from bringing suit under the Americans With Disabilities Act and Title V of the Rehabilitation Act. Coffman v. State of Michigan, 120 F.3d 57, 58-59 (6th Cir.1997). The foregoing cases reflect “a consistent judicial interpretation that Congress did not intend to extend the protections of Title VII ... to members of the state National Guard ... because of a determination that, if Congress had intended to encroach upon the special status of the military in our system by extending these protections, it would have expressed its intention clearly.” Frey v. State of California, 982 F.2d 399, 404 (9th Cir.1993). The Court agrees with this authority and concludes that Title VII does not abrogate sovereign immunity for enlisted personnel and applicants for enlistment in the National Guard. Thus, if plaintiff sought to enlist as a uniformed member of the National Guard, her claim is barred by the doctrine of sovereign immunity. However, as recognized" }, { "docid": "13744242", "title": "", "text": "Privacy Act creates a range of specific, non-damage remedies, see 5 U.S.C. § 552a(g)(2) & (3), which the government concedes remain fully applicable. Navy Br. at 25. Cf. Jorden v. National Guard Bureau, 799 F.2d 99, 110-11 (3d Cir.1986) (distinguishing between monetary and injunctive relief in applying Feres to § 1983). But the FTCA provides only damage actions. Thus there is a broad world to which the military-specific language of the Privacy Act can apply, while Feres leaves the FTCA’s similar language with little or no role. More generally, we have understood Feres to create the equivalent of a “clear statement” rule. In finding it applicable to claims under 42 U.S.C. § 1985(3), we said: ... Feres itself represents a refusal to read statutes with their ordinary sweep. The unique setting of the military led the Feres Court to resist bringing the armed services within the coverage of a remedial statute in the absence of an express Congressional command. Bois v. Marsh, 801 F.2d 462, 469 n. 13 (D.C.Cir.1986) (emphasis added); see also Coffman v. State of Michigan, 120 F.3d 57, 59 (6th Cir.1997) (holding that ADA and Rehabilitation Act do not apply to the military absent a “clear direction” from Congress (emphasis added)); Roper v. Department of Army, 832 F.2d 247, 248 (2d Cir.1987) (holding that in the “absence of some express indication” from Congress, Title VII does not apply to the military). In the Privacy Act there is no more of an “express Congressional command” than there is in the FTCA. The Supreme Court has itself extended Feres to all Bivens actions. United States v. Stanley, 483 U.S. 669, 681-84, 107 S.Ct. 3054, 3062-64, 97 L.Ed.2d 550 (1987); Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). Bivens, of course, imposes liability on individual officials, as indeed does the liability under 42 U.S.C. § 1985(3) that in Bois we found subject to Feres. Thus one might write off both Stanley and Chappell, and Bois, as extensions addressed to some special anxiety that might flow from individual exposure to liability. Compare Maj. Op. at 1056" }, { "docid": "1010068", "title": "", "text": "such circumstances. United States v. Stanley, 483 U.S. 669, 683-84, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987). This court has categorized the Feres doctrine as one of justiciability. Filer v. Donley, 690 F.3d 643, 648-50 (5th Cir. 2012). Although the Supreme Court has only considered this issue in the context of FTCA and Bivens claims, we have held that Feres bars all lawsuits based on injuries incident to military service. See Crawford v. Texas Army Nat’l Guard, 794 F.2d 1034, 1035-36 (5th Cir. 1986). Relevant to this case, claims brought directly under state law are barred by Feres. Holdiness v. Stroud, 808 F.2d 417, 426 (5th Cir. 1987). In Holdiness, the plaintiff filed suit under 42 U.S.C. §§ 1983, 1985; the FTCA; and Louisiana state law. Id. at 420. We followed Chappell’s, command to hesitate before interfering in the relationships between military personnel and the preference for having those disputes adjudicated under the “unique structure of the military establishment.” Id. at 426. We held that judicial review of a state-law tort claim arising in this context would constitute an “unwarranted intrusion into the military personnel structure” about which the Court has previously warned. Id. The Morrises allege that their case is distinguishable because Thompson removed on the basis of diversity of citizenship. We see no distinction. These are still state-law claims arising in a situation that was incident to service. “[Civilian courts may not sit in plenary review over intra-service military disputes.” Crawford, 794 F.2d at 1035. Feres bars state-law claims because adjudication “would undermine military decision-making as surely as federal claims held to be nonjusticiable.” Texas Adjutant Gen.’s Dep’t v. Amos, 54 S.W.3d 74, 78 (Tex. App.—Austin 2001, pet. denied). The Morrises further argue that the Feres doctrine does not apply because Morris and Thompson held the same rank. It is true that the superior-subordinate relationship has at times been relevant in the articulation of the Feres doctrine. Chappell, 462 U.S. at 300, 103 S.Ct. 2362. Nonetheless, the Supreme Court does “not consider the officer-subordinate relationship crucial[.]” Stanley, 483 U.S. at 680, 107 S.Ct. 3054. In Stanley, the Army" }, { "docid": "13396967", "title": "", "text": "interpreted broadly. “[Pjractically any suit that ‘implicates the military judgments and decisions’ ... runs the risk of colliding with Feres.” Persons v. United States, 925 F.2d 292, 295 (9th Cir.1991) (quoting United States v. Johnson, 481 U.S. 681, 691, 107 S.Ct. 2063, 2069, 95 L.Ed.2d 648 (1987)). The Supreme Court has held that Feres applies not only to tort actions brought under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., but to Bivens actions as well. Chappell v. Wallace, 462 U.S. 296, 305, 103 S.Ct. 2362, 2368, 76 L.Ed.2d 586 (1983) (“enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations”); United States v. Stanley, 483 U.S. 669, 680-81, 107 S.Ct. 3054, 3062, 97 L.Ed.2d 550 (1987) (Chappell approach applies to all activities performed “incident to service” and not merely to activities performed within the officer/subordinate relationship). Furthermore, Feres bars intentional tort claims as well as simple negligence claims. See Mollnow v. Carlton, 716 F.2d 627, 628 (9th Cir.1983). Finally, Feres is not limited to suits against the United States. We have extended Feres to “suits between individual members of the military, recognizing an ‘intramilitary immunity’ from suits based on injuries sustained incident to service.” Lutz v. Secretary of the Air Force, 944 F.2d 1477, 1480-81 (9th Cir.1991). In sum, the Feres doctrine is applicable “whenever a legal action ‘would require a civilian court to examine decisions regarding management, discipline, supervision, and control of members of the armed forces of the United States.’ ” Hodge v. Dalton, 107 F.3d 705, 710 (9th Cir.1997) (quoting McGowan v. Scoggins, 890 F.2d 128, 132 (9th Cir.1989)). Bowen attempts to escape the reach of Feres by arguing that the doctrine applies only to the federal military structure. First, Bowen claims that his status as a state, rather than federal, military employee exempts his claim from the Feres bar. We previously have rejected this argument. “It is beyond question that the Feres doctrine generally applies to claims brought by National Guard members.” Stauber v. Cline, 837 F.2d 395, 399 (9th Cir.1988); see also" }, { "docid": "13139896", "title": "", "text": "4. . Although the rule emanating from Feres has been extended by the cases that follow it, we refer to the principles that have emerged from these cases as \"the Feres doctrine.” . The Feres doctrine has been extended beyond its original application to FTCA claims. Thus, for example, members of the military cannot challenge military decisions under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), see Chappell v. Wallace, 462 U.S. 296, 304, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), or under 42 U.S.C. § 1983, see Dibble v. Fenimore, 339 F.3d 120, 125 (2d Cir.2003), cert. denied, - U.S. -, 124 S.Ct. 2068, 158 L.Ed.2d 619 (2004). The doctrine applies not only to legal actions brought by members of the regular military, but also to those brought by members of the National Guard. See Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 674, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977); Jones v. N.Y. State Div. of Military & Naval Affairs, 166 F.3d 45, 51 (2d Cir.1999); Stauber, 837 F.2d at 399. . The extent to which \"redress designed to halt or prevent ... constitutional violation[s] rather than the award of money damages” may be permitted — an issue not presented on this appeal — is discussed in Dibble, 339 F.3d at 126 (quoting Stanley, 483 U.S. at 683, 107 S.Ct. 3054; internal quotation marks omitted; omission and alteration in original). . One of Congress’s explicit goals in giving Guard Technicians dual status under the Guard Technicians Act was to grant them coverage under the Federal Tort Claims Act. Am. Fed’n of Gov’t Employees, 730 F.2d at 1542 (citing H.R.Rep. No. 90-1823, U.S. Code Cong. & Admin.News 1968, p. 3318 (1968)). We have found no evidence that a similar explicit goal of the Act was to grant Guard Technicians rights under Title VII. . The concurrence warns of the \"undisciplined expansion of the Feres doctrine.” {Infra, p. 100.) Inasmuch as the general application of Feres to Guard Technicians is well settled, and its application" }, { "docid": "13139895", "title": "", "text": "interviewed Overton, Fletcher, and other workers in the ELEN shop. The defendants respond that Ivan Kelly was not the Inspector General of the Division and that his investigation of Fletcher was not authorized. .Specifically, Overton asserts that, while acting as his superior, Fletcher made \"derogatory comments about African-Americans and other ethnic groups, as well as women,” Overton Deck ¶ 14, at 4; \"use[d] the terms 'Spies,’ ‘Hebes’ and 'Kikes' on several occasions,” id.; and said, in effect, that \"women did not belong working on aircraft, but rather belonged in the kitchen,” id. Fletcher also allegedly asked Overton \"What's that Bill, your spear?” (referring to a broken broom Overton was holding), id. ¶ 16, at 5, and, in mock dialect, \"What you got there [referring to a cheeseburger Overton was carrying], fried chicken?” id. ¶ 17. Overton further states that other co-workers heard Fletcher say, \"All blacks are niggers,” \"Niggers belong on the basketball court rather than working on C5 aircraft,” and \"[African Americans] are too stupid to be working on aircraft.” Id. ¶ 14, at 4. . Although the rule emanating from Feres has been extended by the cases that follow it, we refer to the principles that have emerged from these cases as \"the Feres doctrine.” . The Feres doctrine has been extended beyond its original application to FTCA claims. Thus, for example, members of the military cannot challenge military decisions under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), see Chappell v. Wallace, 462 U.S. 296, 304, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), or under 42 U.S.C. § 1983, see Dibble v. Fenimore, 339 F.3d 120, 125 (2d Cir.2003), cert. denied, - U.S. -, 124 S.Ct. 2068, 158 L.Ed.2d 619 (2004). The doctrine applies not only to legal actions brought by members of the regular military, but also to those brought by members of the National Guard. See Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 674, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977); Jones v. N.Y. State Div. of Military &" }, { "docid": "21893711", "title": "", "text": "Feres, governed. Therefore, plaintiff could sue under the FTCA. In the thirty years since the Feres decision, Congress has not seen fit to legislatively modify the judicial exception to the FTCA. Furthermore, the Supreme Court recently confirmed the vitality of the Feres doctrine in Stencel Aero Eng'r Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977). Stencel Aero held that Feres bars an indemnity action by a third party for money paid to a serviceman who could not recover directly from the United States. 431 U.S. at 673-74, 97 S.Ct. at 2058-59. This court has consistently applied Feres in holding that FTCA suits are barred if plaintiff was injured incident to military service. Joseph v. United States, 505 F.2d 525 (7th Cir. 1974) (pre-existing infirmity became aggravated during military service); Herreman v. United States, 476 F.2d 234 (7th Cir. 1973) (death of Army National Guard member, not on active duty, flying on military aircraft was “incident to military service”); Layne v. United States, 295 F.2d 433 (7th Cir. 1961), cert. denied, 368 U.S. 990, 82 S.Ct. 605, 7 L.Ed.2d 527 (1962) (death of Air National Guard pilot on training flight was “incident to military service”). See also Citizens National Bank v. United States, 594 F.2d 1154 (7th Cir. 1979) (Feres bar applied to intentional torts). Ill We now turn to the specific question of whether plaintiff’s injury was “incident to military service.” Air Force Academy cadets are considered members of the Air Force. 10 U.S.C. § 8075(b)(2). There is no dispute that plaintiff’s injury was incident to his service as a cadet at the Academy. Thus, the sole question we must decide is whether the Feres rule covers cadets. In Archer v. United States, 217 F.2d 548 (9th Cir. 1954), cert. denied, 348 U.S. 953, 75 S.Ct. 441, 99 L.Ed. 745 (1955), a cadet from the United States Military Academy was killed , in the crash of a military airplane. The cadet was on leave and rode gratuitously in the plane. His parents claimed that the plane was operated negligently and sued for damages under" }, { "docid": "11987084", "title": "", "text": "Force’s later motion to dismiss, Major Walch asserted that he had inaccurately used the Bivens label to refer to claims against the Texas Adjutant General actually under 42 United States Code, Sections 1983, 1985, and 1988. He never sought to amend his complaint on that basis. The relief that is sought includes reinstatement, back pay, money damages for the discrimination, and attorneys’ fees. Understanding the claims, we examine whether they are justiciable. B. Justiciability of Guardsman’s claims of discrimination The district judge found these claims to run afoul of the doctrine that “United States military personnel may not bring actions based on injuries suffered incident to their service in the armed forces.” See Feres, 340 U.S. 135, 71 S.Ct. 153. Feres was a Federal Torts Claims Act suit. Id. at 138, 71 S.Ct. 153. In 1987, the Supreme Court also applied Feres to block Bivens claims by service members whose injuries were incident to service. United States v. Stanley, 483 U.S. 669, 684, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987). Fur ther, this Circuit applied the Feres doctrine to Section 1983 claims that are incident to military service, in a case brought by a Texas National Guardsman. Crawford v. Tex. Army Nat’l Guard, 794 F.2d 1034, 1035-36 (5th Cir.1986). Finally, we also have held that Title VII claims that originate from military status are barred by Feres. Brown v. United States, 227 F.3d 295, 299 (5th Cir.2000). In summary, then, each category of claim brought by Major Walch has been held subject to Feres in certain circumstances. Walch argues his circumstances are distinguishable primarily because he is a dual-status Guardsman and a federal technician. The discrimination against him allegedly occurred during his civilian work. Consequently, we find this an appropriate point to discuss the details of his employment. The National Guard Technician Act, Pub.L. No. 90-486, 82 Stat. 755 (Aug. 13, 1968), created an unusual status, mixing state command with federal employment, combining civilian job positions with military leadership: Congress has authorized the use of National Guard technicians since the National Defense Act of 1916. Previously defined as “caretakers and" }, { "docid": "6448016", "title": "", "text": "F.2d 926, 928 (9th Cir.1983), this court held that the term “military departments” in § 2000e-16(a) “include[s] only civilian employees of the Army, Navy, and Air Force and not both civilian employees and enlisted personnel.” In reaching this conclusion, we compared the definition that Congress had given “armed forces” with the definition that Congress had given “military departments.” We noted that Congress had defined “armed forces” in 10 U.S.C. § 101 as “the Army, Navy, Air Force, Marine Corps, and Coast Guard.” Id. This definition differed from the definition that Congress used for “military departments” in 5 U.S.C. § 102. Id. We concluded that “[t]he two differing definitions show that Congress intended a distinction between ‘military departments’ and ‘armed forces,’ the former consisting of civilian employees, the latter of uniformed military personnel.” Id. We then examined the legislative history of § 2000e-16(a) and concluded that the legislative history also provided “a strong inference that section [2000e-16] was not intended to extend Title VII coverage to enlisted and commissioned members of the armed forces in active service.” Id. All other circuits to address the issue have also held that Title VII is inapplicable to uniformed members of the military. See, e.g., Doe v. Garrett, 903 F.2d 1455, 1461-62 (11th Cir.1990) (barring naval reserve member’s Rehabilitation Act claim that his release from active-duty military was due to discrimination based on his handicap), cert. denied, 499 U.S. 904, 111 S.Ct. 1102, 113 L.Ed.2d 213 (1991); Roper v. Department of Army, 832 F.2d 247, 248 (2d Cir.1987). (barring army reserve member’s claim that ■ she was not promoted due to racial and sexual discrimination); Stinson v. Hornsby, 821 F.2d 1537, 1541 (11th Cir.1987) (barring national guard member’s claim that his discharge was due to racial discrimination), cert. denied, 488 U.S. 959, 109 S.Ct. 402, 102 L.Ed.2d 390 (1988); Taylor v. Jones, 653 F.2d 1193, 1200 (8th Cir.1981) (barring national guard member’s claim, that she was demoted due to racial discrimination); Johnson v. Alexander, 572 F.2d 1219, 1223-24 (8th Cir.) (barring army applicant’s claim that he was rejected due to racial discrimination), cert. denied, 439" }, { "docid": "10642006", "title": "", "text": "U.S. 482, 495, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997). For this reason, we must consider the 1997 Amendments against the backdrop of our intra-military immunity precedent. Beginning with Feres, the Supreme Court has been quite careful in guarding the doctrine of intra-military immunity against statutory and common law challenges. 340 U.S. at 146, 71 S.Ct. 153 (holding that the doctrine applied to suits brought under the Federal Tort Claims Act); see also Chappell v. Wallace, 462 U.S. 296, 305, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983) (enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations). Our Circuit has followed suit. See Hodge, 107 F.3d at 710 (intramilitary immunity doctrine precludes suit brought by active-duty military personnel pursuant to 42 U.S.C. § 2000e-16(e)); Mier, 57 F.3d at 751 (intra-military immunity doctrine preludes suits by dual status employees under Title VII); Stauber, 837 F.2d at 401 (intra-military immunity precludes common law tort suit by dual status employee); Gonzalez v. Department of Army, 718 F.2d 926, 929 (9th Cir.1983) (intra-military immunity doctrine precludes suit under Title VII); Mollnow v. Carlton, 716 F.2d 627, 631 (9th Cir.1983) (intra-military immunity precludes military officers from suing fellow military officers under 42 U.S.C. § 1985(1) or common law tort theories); Mattos v. United States, 412 F.2d 793, 794 (9th Cir.1969) (intramilitary immunity doctrine precludes suits by reservists against fellow reservists for injuries received while on reserve training). In Gonzalez and Mier, we quoted with approval the Eighth Circuit’s observation that “if Congress had intended for [Title VII] to apply to the uniformed personnel of the various armed services, it would have said so in unmistakable terms.” Johnson v. Alexander, 572 F.2d 1219, 1224 (8th Cir.1978) (quoted in Gonzalez, 718 F.2d at 928 and in Mier, 57 F.3d at 749). In Mier, we began our statutory analysis by applying the “unmistakable terms” test and determined that Congress had not — either through the National Guard Technicians Act or Title VII itself — “stated in ‘unmistakable terms’ ” that Title VII applies to dual status National Guard technicians." }, { "docid": "17086365", "title": "", "text": "Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam). B. Incident to Service Test In Feres, the Supreme Court created a judicial exception to the broad waiver of sovereign immunity in the Federal Tort Claims Act (FTCA). See 340 U.S. at 146, 71 S.Ct. 153. The federal government cannot be liable under the FTCA “for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Id. The Supreme Court subsequently applied the exception created in Feres to damage actions under Bivens. See Chappell v. Wallace, 462 U.S. 296, 305, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). Relying on language in Feres, courts have applied the “incident to service” test. Originally, this test was cast in narrow terms, barring enlisted military personnel from bringing FTCA claims against a superior officer. See id. at 305, 103 S.Ct. 2362. In subsequent cases, the federal courts have expanded the reach of the Feres doctrine. See, e.g., United States v. Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987) (applying Feres to bar Bivens claims for damages against military and civilian officials for injuries resulting from the military’s intentional administration of LSD to unwitting volunteer); United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (applying Feres to bar an FTCA claim against the United States alleging negligence by civilian employees of the Federal Aviation Administration); United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985) (applying Feres to FTCA claim arising from the decedent servicemember’s murder committed by a fellow service-member which occurred off-duty and off-base); Stencel Aero Eng’g Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977) (applying Feres to bar defendant corporation’s cross-claim against United States for indemnification of ser-vicemember’s injuries arising from military activities); Pringle v. United States, 208 F.3d 1220 (10th Cir.2000) (per curiam) (applying Feres to an FTCA claim for injuries sustained from a beating after plaintiff servicemember was ejected from a military club); Quintana, 997 F.2d 711" }, { "docid": "9713184", "title": "", "text": "beyond question that the Feres doctrine generally applies to claims brought by National Guard members. See, e.g., Stencel Aero, 431 U.S. at 673, 97 S.Ct. at 2058; Anderson v. United States, 724 F.2d 608, 610 (8th Cir.1983); cf. Sebra v. Neville, 801 F.2d 1135, 1140-41 (9th Cir.1986) (justiciability doctrine restricts review of military decisions involving civilian National Guard technician because civilian National Guard employees must hold military rank). Stauber seeks to escape the doctrine on the ground that his claims arose while he and the defendants were civilian employees. Although the technicians had dual status for some purposes, the defendants respond that military regulations, standard operating procedures, and active-duty military officers controlled how the shop was run. See Johnson, 107 S.Ct. at 2069 (because pilot was acting pursuant to standard operating procedures at time of death, suit could implicate military discipline); Millang, 817 F.2d 533, 535 n. 3 (Feres immunity applies upon showing that persons involved were subject to military control; showing of actual control unnecessary). We agree that the conduct that occurred at the maintenance shop cannot give rise to actionable tort claims without impinging on military authority and calling into question matters which are exclusively the subject of military remedies. Stanley, 107 S.Ct. at 3063 (mere process of determining “which particular suits would call into question military discipline and decision-making would itself require judicial inquiry into, and hence intrusion upon, military matters”); Chappell v. Wallace, 462 U.S. 296, 305, 103 S.Ct. 2362, 2368, 76 L.Ed.2d 586 (1983). In 1984, in the Shearer decision, the Supreme Court noted that “[t]he Feres doctrine cannot be reduced to a few brightline rules; each case must be examined in light of the [FTCA] as it has been construed in Feres and subsequent cases.” 473 U.S. at 57, 105 S.Ct. at 3043. The Court in Shearer focused on the effect of suits between military personnel on military discipline and the problem of having civilian courts second-guessing military decisions. Shearer, 473 U.S. at 57-58 & n. 4, 105 S.Ct. at 3043-3044 & n. 4; see Atkinson, 825 F.2d 202 (9th Cir.1987); Millang, 817 F.2d" }, { "docid": "13471408", "title": "", "text": "— mistakenly—that the Supreme Court in Chappell v. Wallace concluded that a member of the military cannot sue a superior under 42 U.S.C. § 1983. Relying on the principle of deference to the military endorsed in Feres, the Chappell Court in fact concluded that military personnel cannot maintain an action for monetary damages against superior officers for alleged constitutional violations under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotbs, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See Chappell v. Wallace, 462 U.S. 296, 305, 103 S.Ct. 2362, 2368, 76 L.Ed.2d 586 (1983). In reaching this outcome, the Chappell Court appeared to rely on a couple of “special factors” to deny a Bivens remedy for the alleged constitutional violations. In particular, the Court identified “the unique disciplinary structure of the Military Establishment and Congress’ activity in the field.” Id. at 304, 103 S.Ct. at 2368. While Chappell is not directly controlling, it nevertheless reflects the principle that a civilian court should exercise restraint in its review of an intraservice military dispute. As a consequence, the range of permissible lawsuits against military superiors is narrowly circumscribed. Of those circuits that have confronted this issue, five have disallowed section 1983 claims for monetary and injunc-tive relief by National Guard personnel. Watson v. Arkansas National Guard, 886 F.2d 1004 (8th Cir.1989); Sebra v. Neville, 801 F.2d 1135 (9th Cir.1986); Crawford v. Texas Army National Guard, 794 F.2d 1034 (5th Cir.1986); Penagaricano v. Llenza, 747 F.2d 55 (1st Cir.1984); Martelon v. Temple, 747 F.2d 1348 (10th Cir.1984), cert. denied, 471 U.S. 1135, 105 S.Ct. 2675, 86 L.Ed.2d 694 (1985). Three of these circuits relied expressly on Chappell in concluding that these section 1983 claims are nonjusticiable. Both the First Circuit and the Ninth Circuit referred to Chappell but relied on the Mindes test to preclude justiciability of section 1983 claims. Penagaricano, 747 F.2d at 61-64; Sebra; 801 F.2d at 1141-42. As a rule, these courts have observed that the disruptive effect of damages suits on military discipline is the same regardless of whether the suit is a Bivens" } ]

[ { "docid": "21051813", "title": "", "text": "adult entertainment zoning ordinances as time, place, and manner regulations. Alameda Books, 122 S.Ct. at 1733 (plurality opinion); id. at 1741 (Kennedy, J., concurring); Renton, 475 U.S. at 46-47, 106 S.Ct. 925. A time, place, and manner regulation of adult entertainment will be upheld if it is “designed to serve a substantial government interest and ... reasonable alternative avenues of communication remain[] available.” Alameda Books, 122 S.Ct. at 1734. Additionally, a time, place, and manner regulation must be justified without reference to the content of the regulated speech and narrowly tailored to serve the govern- merit’s interest. Schultz, 228 F.3d at 845. In this case, however, we are not dealing with a zoning ordinance or a public indecency statute. Instead, we are called upon to evaluate the constitutionality of an adult entertainment liquor regulation. Therefore, it is not entirely clear whether Section 5(b) should be analyzed as a time, place, and manner restriction or as a regulation of expressive conduct under O’Brien’s, four-part test; or for that matter whether the tests are entirely interchangeable. See LLEH, Inc. v. Wichita County, Texas, 289 F.3d 358, 365 (5th Cir.), cert. denied, — U.S. -, 123 S.Ct. 621, 154 L.Ed.2d 517 (2002) (noting uncertainty as to which test courts should use in analyzing the constitutionality of adult entertainment regulations: “the test for time, place, or manner regulations, described in Renton ... or the four-part test for incidental limitations on First Amendment freedoms, established in O’Brien .... ”). For all practical purposes, however, the distinction is irrelevant because the Supreme Court has held that the time, place, and manner test embodies much of the same standards as those set forth hi United States v. O’Brien. Barnes, 501 U.S. at 566, 111 S.Ct. 2456 (plurality opinion) (relying on Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298-99, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)); LLEH, 289 F.3d at 365-66 (same). Moreover, as explained infra, two of the Supreme Court’s post-44 Liquormart decisions — Pap’s A.M. and Alameda Books—make it abundantly clear that the analytical frameworks and standards utilized by the Court in evaluating adult" } ]

[ { "docid": "12273079", "title": "", "text": "v. Veneman, 231 F.Supp.2d 895, 906-07 (N.D.Iowa 2002) (quoting this section of Branstad). Thus, “likelihood of success on the merits” necessarily requires consideration of the law applicable to the plaintiffs claims. b. Applicable law Recently, in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002), the United States Supreme Court explained that it had used the following three-step analysis of the constitutional validity of a municipal zoning ordinance regulating adult entertainment businesses in its prior decision in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986): First, we found that the ordinance did not ban adult theaters altogether, but merely required that they be distanced from certain sensitive locations. The ordinance was properly analyzed, therefore, as a time, place, and manner regulation. [Renton, 475 U.S.], at 46, 106 S.Ct. 925, 89 L.Ed.2d 29. We next considered whether the ordinance was content neutral or content based. If the regulation were content based, it would be considered presumptively invalid and subject to strict scrutiny. Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115, 118, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991); Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 230-231, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987). We held, however, that the Renton ordinance was aimed not at the content of the films shown at adult theaters, but rather at the secondary effects of such theaters on the surrounding community, namely, at crime rates, property values, and the quality of the city’s neighborhoods. Therefore, the ordinance was deemed content neutral. Renton, supra, at 47-49, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29. Finally, given this finding, we stated that the ordinance would be upheld so long as the city of Renton showed that its ordinance was designed to serve a substantial government interest and that reasonable alternative avenues of communication remained available. 475 U.S., at 50, 106 S.Ct. 925, 89 L.Ed.2d 29. We concluded that Renton had met this burden, and we upheld its ordinance. Id.," }, { "docid": "12596447", "title": "", "text": "set forth by City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002), and City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). The Alameda Books/Renton line of cases deal with zoning ordinances aimed at dispersing adult entertainment businesses throughout a community, which are considered time, place, and manner restrictions. Alameda Books, 535 U.S. at 434, 122 S.Ct. 1728 (plurality opinion). Another line of Supreme Court cases, however, uses the intermediate scrutiny test of United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), to review public indecency statutes, which are considered laws affecting expressive conduct. See City of Erie v. Pap’s AM., 529 U.S. 277, 289, 120 S.Ct. 1382,146 L.Ed.2d 265 (2000) (plurality opinion); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (plurality opinion). There is some confusion about which line of cases should be used in evaluating laws like the Ordinance, which do not fall neatly into either category. See Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702, 714 (7th Cir.2003) (expressing uncertainty as whether to analyze an adult entertainment liquor regulation “as a time, place, and manner restriction [under Alameda Books/Renton ] or as a regulation of expressive conduct under [Pap’s AM./Bames ]”) (citing LLEH, Inc. v. Wichita County, Texas, 289 F.3d 358, 365 (5th Cir.2002)). And for most cases, it may not matter which test is employed. Id. (noting that the analysis between the two lines of cases may be “entirely interchangeable”). The crucial analytical step of both tests is the same; which is to say, that under both lines of cases, intermediate scrutiny is applied if the challenged law is found to be either content neutral or for the purpose of decreasing secondary effects. See Alameda Books, 535 U.S. at 448, 122 S.Ct. 1728 (Kennedy, J. concurring) (“A zoning restriction that is designed to decrease secondary effects and not speech should be subject to intermediate rather than strict scrutiny.”); R.V.S., L.L.C. v. City of" }, { "docid": "12273081", "title": "", "text": "at 51-54, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29. Alameda Books, Inc., 535 U.S. at 433-34, 122 S.Ct. 1728 (emphasis added). Thus, this court must likewise apply the “Renton analysis” and (1) determine whether the City’s amended ordinances constitute a ban on “adult entertainment businesses,” or only a “time place and manner regulation”; (2) determine whether the amended ordinances are “content neutral” or “content based”; and (3)(a) if the amended ordinances are found to be “content neutral,” determine whether they are “designed to serve a substantial government interest” and whether “reasonable alternative avenues of communication remain available,” or (b) if the amended ordinances are found to be “content based,” apply “strict scrutiny” to determine the validity of the amended ordinances. c. Preliminary application of the law i. “Ban” or “time, place, and manner” regulation? As the Supreme Court has explained, an ordinance that does not ban adult businesses altogether, but merely requires that they be distanced from certain sensitive locations, see Renton, 475 U.S. at 46, 106 S.Ct. 925, or not allowed to concentrate, see Alameda Books, Inc., 535 U.S. at 430 & 435, 122 S.Ct. 1728, is a “time, place, and manner” regulation. In the present case, the October 2003 amendments imposed a complete — albeit temporary — ban on new “adult” businesses. However, the amended ordinances now at issue, Sioux City Municipal Code 25.56.030 and the January 2004 amendments, only bar “adult entertainment businesses,” as redefined, from the General Business (BG) Zones, not from the entire City. Because “adult entertainment businesses,” however defined, are still permitted within General Business— Metropolitan (BG-M) zones, such as the downtown area, the regulations at issue here are “time, place, and manner” restrictions. ii. “Content neutral” or “content based”? The next question, then, is whether the ordinances, as amended, are “content neutral” or “content based” at the second step of the Renton analysis. The fundamental principle at issue at this stage of the analysis is the principle “that ‘government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to" }, { "docid": "9449172", "title": "", "text": "L.Ed.2d 29 (1986), the Supreme Court applied a three-step analysis in reviewing the First Amendment validity of a municipal zoning ordinance that regulated adult movie theaters. The Renton analysis instructs courts reviewing regulations of adult entertainment establishments to consider: (1) whether the regulation constitutes an invalid total ban or merely a time, place, and manner regulation, (2) whether the regulation is content-based or content-neutral, and accordingly, whether strict or intermediate scrutiny is to be applied, and (3) if content-neutral, whether the regulation is designed to serve a substantial government interest and allows for reasonable alternative channels of communication. In upholding a ban on multiple-use adult establishments, the plurality opinion in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002), adhered to the Renton framework. However, in his concurrence, Justice Kennedy joined the four dissenters, id. at 455-56, 122 S.Ct. 1728, in eschewing the content-neutral “fiction” of adult entertainment zoning ordinances. Id. at 448, 122 S.Ct. 1728 (“These ordinances are content based and we should call them so.”); see also G.M. Enterprises v. Town of St. Joseph, 350 F.3d 631, 637 (7th Cir.2003) (explaining that the content-based versus content-neutral inquiry is unnecessary). Generally, content based restrictions on speech are analyzed with the strictest scrutiny, but Justice Kennedy explained that content based zoning regulations can be exceptions to that rule. In so concluding, he agreed with the plurality that “the central holding of Renton is sound: A zoning restriction that is designed to decrease secondary effects and not speech should be subject to intermediate rather than strict scrutiny.” Alameda Books, 535 U.S. at 448, 122 S.Ct. 1728. Whatever the label, Renton’s second step is best conceived as an inquiry into the purpose behind an ordinance rather than an evaluation of an ordinance’s form. See Alameda Books, 535 U.S. at 440-41, 122 S.Ct. 1728 (plurality opinion) (explaining Renton’s second step “requires courts to verify that the predominant concerns motivating the ordinance were with the secondary effects of adult [speech]”) (emphasis added) (internal quotations omitted); Ben’s Bar v. Village of Somerset, 316 F.3d 702, 723" }, { "docid": "16423889", "title": "", "text": "Overarching the discussion are the questions whether strict or intermediate scrutiny governs the constitutional analysis of the Ordinance and whether the Ordinance generally violates state constitutional or statutory provisions. We will discuss these issues first. Next we will address 97-75’s provisions that limit the location of SOBs. The interpretation and constitutionality of amended regulations for the physical structure and exterior signage of SOBs comprise the third section of the opinion. Finally, we consider issues surrounding the licensing of SOB employees. I. General Issues A. Strict or Intermediate Scrutiny While no sea change occurred in the constitutional status of SOBs during the pendency of this case on appeal, the Supreme Court refined the Renton test in the interim, see City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002), and partially superseded the district court’s analysis. In Alameda Books, the Court majority (including Justice Kennedy in a separate concurrence) reaffirmed the three-part Renton test, which considers (a) whether a sexually oriented business zoning ordinance is a time, place and manner regulation; (b) whether the ordinance is aimed at the content of sexually-oriented speech (content-based) or the “speech’s” secondary effects on the community (content-neutral); and after passing those tests, (c) whether the ordinance is designed to serve a substantial governmental interest and leaves open reasonable alternative avenues of communication. See Alameda Books, 535 U.S. at 433-34, 122 S.Ct. at 1733-34, citing City of Renton, 475 U.S. at 47, 106 S.Ct. at 930. In that opinion, the Court expressly distinguished between the second and third parts of the Renton test, explaining that: The former requires courts to verify that the “predominate concerns” motivating the ordinance “were with the secondary effects of adult [speech], and not with the content of adult [speech].” The latter inquiry goes one step further and asks whether the municipality can demonstrate a connection between the speech regulated by the Ordinance and the secondary effects that motivated the adoption of the Ordinance. Only at this stage did Renton contemplate that courts would examine evidence concerning regulated speech and secondary effects. Id. at" }, { "docid": "21389288", "title": "", "text": "we reject this challenge. The provision at issue'reads as follows: [Ejntertainers [must] maintain a minimum distance of five (5) feet from areas on the establishment’s premises being occupied by customers, for a minimum of one (1) hour after the entertainer appears semi-nude on the establishment’s premises. This regulation is not intended to prohibit ingress or egress from the premises or entertainers [sic] use of the premises’ common restroom. It is intended to control illicit sexual contact and reduce the incidents of prostitution occurring in the establishments. Regulating a reasonable delay between the times the entertainers appear semi-nude and their commingling with customers is a narrowly tailored furtherance [sic] of this interest. Penalty for violation: license suspension after being cited for two (2) such violations. JA 364 (emphasis in original). Because the Ordinance forbids anyone from being semi-nude anywhere but on stage, this provision requires that an entertainer stay at least five feet away from areas being occupied by customers for at least one hour after the entertainer performs semi-nude on stage. Managers, establishments, and entertainers each have an affirmative duty to ensure the enforcement of this provision. Although the plaintiffs contend that this provision should be subjected to strict scrutiny, it is well-settled that laws targeting the “secondary effects” of adult-entertainment establishments are subject to intermediate scrutiny. In Renton v. Playtime Theatres, Inc., the Supreme Court held that an ordinance designed to concentrate such establishments in one area of a city would be subject to intermediate scrutiny because it was a content-neutral time, place, and manner restriction. 475 U.S. 41, 46-47, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). Although five members of the Court abandoned the premise that such restrictions are content-neutral sixteen years later in City of Los Angeles v. Alameda Books, the Court continued to apply intermediate scrutiny to laws targeting “secondary effects.” 535 U.S. 425, 429, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (applying intermediate scrutiny to an ordinance dispersing, rather than concentrating, adult businesses). In each of those cases, the Court applied its earlier ruling in United States v. O’Brien, which set intermediate scrutiny as the" }, { "docid": "16232476", "title": "", "text": "supported by a substantial governmental interest; the Ordinances allow a sufficient number of sites for plaintiffs businesses to relocate; the Ordinances are not vague or overbroad; and the amortization provision is valid and satisfies due process. Plaintiff contends there are genuine issues of material fact as to each of these propositions which precludes summary judgment and requires the court to conduct a trial. Zoning ordinances designed to combat the undesirable secondary effects of adult entertainment businesses are analyzed as “time, place, and manner” restrictions on speech. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), citing with approval Young v. American Mini Theatres, Inc., 427 U.S. 50, 70, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). A city may impose reasonable restrictions on the time, place or manner of protected speech, provided the restrictions are content neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication of the information.' Colacurcio v. City of Kent, 163 F.3d 545, 551 (9th Cir.1998), cert. denied, 529 U.S. 1053, 120 S.Ct. 1553, 146 L.Ed.2d 459 (2000). 1. Are the Ordinances Content Neutral? A zoning ordinance is analyzed as a time, place, and manner restriction on speech “if the predominant purpose of the ordinance is the amelioration of secondary effects in the surrounding community.” Id. at 551. Secondary effects are “regulatory targets that happen to be associated with the type of speech.” Boos v. Barry, 485 U.S. 312, 320, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988). Plaintiff contends that is not the predominant purpose of the Ordinances at issue in this case and indeed, that the Ordinances are a pretext for suppressing protected speech. Plaintiff relies on the Supreme Court’s recent decision in City of Los Angeles v. Alameda Books, 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002), and suggests that Alameda Books represents a new and different approach to the constitutional analysis of adult entertainment zoning ordinances. While Alame-da Books may clarify existing precedent, this court is not persuaded that it fundamentally alters the legal landscape regarding" }, { "docid": "16267149", "title": "", "text": "of the Ordinances is to regulate the harmful secondary effects associated with sexually oriented businesses. World Wide Video of Washington, Inc. v. City of Spokane, 227 F.Supp.2d 1143, 1150-51 (E.D.Wash.2002). The summary judgment record permits no other conclusion as to the purpose of the Ordinances. See e.g., Ordinance C-33001, Preamble/Findings, (4)(k) (“It is not the intent of the proposed zoning provisions to suppress any speech activities protected by the First Amendment ..., but to propose content neutral legislation which addresses the negative secondary impacts of adult retail use and entertainment establishments[.]”). Accordingly, we apply in termediate scrutiny. See Renton, 475 U.S. at 49,106 S.Ct. 925. B An ordinance aimed at combating the secondary effects of a particular type of speech survives intermediate scrutiny “if it is designed to serve a substantial government interest, is narrowly tailored to serve that interest, and does not unreasonably limit alternative avenues of communication.” Center for Fair Pub. Policy v. Maricopa County, 336 F.3d 1153, 1166 (9th Cir.2003) (citing Renton, 475 U.S. at 50, 106 S.Ct. 925 and Colacurcio v. City of Kent, 163 F.3d 545, 551 (9th Cir.1998)), cert. denied, 124 S.Ct. 1879 (2004). World Wide does not appeal the district court’s determination that the Ordinances leave open adequate alternative avenues of communication. The issue before us is thus limited to whether the Ordinances are narrowly tailored to serve a substantial government interest. In Alameda Books, the Supreme Court “elarif[ied] the [Renton] standard for determining whether an [adult-use] ordinance serves a substantial government interest.” 535 U.S. at 433, 122 S.Ct. 1728 (plurality opinion). Thus, the proper starting point for evaluating World Wide’s appeal is close consideration of Renton and Alameda Books. Our analysis is also informed by Maricopa County, this court’s sole interpretation and application of the Renton/Alameda Books standard to date. 1 The challenged ordinance in Renton prohibited adult movie theaters from locating within 1,000 feet of various zones, such as those intended for schools and churches. An adult theater owner sued, arguing, inter alia, that because the City of Renton improperly relied on another city’s experiences with the secondary effects of adult" }, { "docid": "12343366", "title": "", "text": "secondary effects of adult entertainment; and (3) satisfies intermediate scrutiny. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). The purpose and effect of the regulation must be to reduce the secondary effects rather than to reduce speech. City of Los Angeles v. Alameda Books, 535 U.S. 425, 445, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002)(Kennedy, J., concurring). Pursuant to intermediate scrutiny, a valid content-neutral time, place, and manner regulation is permissible if it is narrowly tailored to serve a substantial governmental interest without unreasonably limiting alternative avenues of communication. Ward v. Rock Against Rac ism, 491 U.S. 781, 798, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). In contrast, if the regulation of sexually explicit materials is aimed primarily at suppression of First Amendment rights, it is thought to be content-based and so presumptively violates the First Amendment and is subject to strict scrutiny. Renton, 475 U.S. at 46, 106 S.Ct. 925. A content-based restriction survives strict scrutiny only on a showing of necessity to serve a compelling state interest, combined with least restrictive narrow tailoring to serve that end. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). The ordinance’s prohibition on installation of enclosed booths, cubicles, rooms or stalls in SOBs is a valid time, place and manner regulation. It does not amount to a complete ban on erotic expression, since it only regulates the setting of that expression. The Summary to the ordinance and the ordinance’s “Declaration of Policy” evince a purpose to protect the health, safety and welfare of Berlin’s residents. These documents cite to studies across the country finding a connection between SOBs with booths, cubicles, studios and rooms, and prostitution, and the spread of communicable diseases such as HIV and Hepatitis B, and other unhealthful conditions. Prior to enacting the ordinance, the Town passed a moratorium on SOBs pending the Ordinance Committee’s study of experiences in several cities nationwide. In enacting its regulations, the Town may rely on the experiences of other cities so long as" }, { "docid": "17605294", "title": "", "text": "Houston, 352 F.3d 162, 172 (5th Cir.2003). We review a district court’s factual findings for clear error. Kona Tech. Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 601 (5th Cir.2000). The Supreme Court’s admonition that cities not justify ordinances by relying on “shoddy data or reasoning,” City of Los Angeles v. Alameda Books, 535 U.S. 425, 438, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (plurality opinion), requires factual findings, but turns on the legal interpretation of what the Supreme Court meant by “shoddy.” Therefore, we review a district court’s findings as to the existence of a city’s evidence for clear error, but we review de novo whether that evidence falls within the Supreme Court’s admonition. III. DISCUSSION “Zoning regulations restricting the location of adult entertainment businesses are considered time, place, and manner restrictions ... if they do not ban [adult-entertainment] businesses throughout the whole of a jurisdiction and are ‘designed to combat the undesirable secondary effects of such businesses’ rather than to restrict the content of their speech per se.” Encore Videos, 330 F.3d at 291 (quoting City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986)) (citing Lakeland Lounge v. Jackson, 973 F.2d 1255, 1257-58 (5th Cir.1992)). Time, place, and manner restrictions on speech violate the First Amendment unless they are content-neutral, are designed to serve a substantial governmental interest, do not unreasonably limit alternative avenues of communication, and are narrowly tailored. See Encore Videos, 330 F.3d at 291-92. Kennedale’s ordinances meet the narrow tailoring standard if they “target! ] and eliminate! ] no more than the exact source of the evil [they] seek! ] to remedy.” Encore Videos, 330 F.3d at 293; Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). Thus, an ordinance meant to deter property depreciation may only regulate businesses for which a connection to property depreciation can be demonstrated. To show that an ordinance advances its goals, a city “may rely on any evidence that is ‘reasonably believed to be relevant.’ ” Alameda Books, 535 U.S. at 438, 122 S.Ct." }, { "docid": "12343365", "title": "", "text": "a broader range of conduct. Accordingly, whether the overbreadth of the Berlin ordinance’s “no touch” provision is sufficiently substantial to render the ordinance unconstitutional requires the Court to look to the merits of the claim. Defendants also assert that plaintiffs lack standing on their challenge to the ordinance’s prohibition against enclosed booths, cubicles, rooms or stalls, since that provision is not applicable to Centerfolds. However, at present, Centerfolds cannot install such booths, cubicles, rooms or stalls and remain in compliance with the ordinance. Accordingly, the ordinance is applicable to Centerfolds. The Court finds that plaintiffs have satisfied the standing requirements for the facial challenge to the ordinance’s restrictions on activities within a SOB. Constitutionality of the Ordinance Defendants argue that the ordinance is a valid time, place and manner regulation subject to intermediate scrutiny. Plaintiffs argue that it is an impermissible content-based ordinance subject to strict scrutiny. A regulation of SOBs is constitutional if it (1) is a time, place and manner restriction rather than a total ban on adult entertainment; (2) targets the negative secondary effects of adult entertainment; and (3) satisfies intermediate scrutiny. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). The purpose and effect of the regulation must be to reduce the secondary effects rather than to reduce speech. City of Los Angeles v. Alameda Books, 535 U.S. 425, 445, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002)(Kennedy, J., concurring). Pursuant to intermediate scrutiny, a valid content-neutral time, place, and manner regulation is permissible if it is narrowly tailored to serve a substantial governmental interest without unreasonably limiting alternative avenues of communication. Ward v. Rock Against Rac ism, 491 U.S. 781, 798, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). In contrast, if the regulation of sexually explicit materials is aimed primarily at suppression of First Amendment rights, it is thought to be content-based and so presumptively violates the First Amendment and is subject to strict scrutiny. Renton, 475 U.S. at 46, 106 S.Ct. 925. A content-based restriction survives strict scrutiny only on a showing of necessity to serve" }, { "docid": "21051829", "title": "", "text": "of Los Angeles v. Alameda Books, Inc. This past term in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002), the Supreme Court upheld, at the summary judgment stage, an ordinance prohibiting multiple adult entertainment businesses from operating in the same building. Id. at 1733. The Court reached this conclusion despite the fact that the city had not, prior to the enactment of the ordinance, conducted or relied upon studies (or other evidence) specifically demonstrating that forbidding multiple adult entertainment businesses from operating under one roof reduces secondary effects. Id. at 1736 (plurality opinion); id. at 1744 (Kennedy, J., concurring). Once again, however, a majority of the Court could not agree on a single rationale for this decision. The primary issue in Alameda Books was the appropriate standard “for determining whether an ordinance serves a substantial government interest under Renton.” 122 S.Ct. at 1733. The plurality — written by Justice O’Connor and joined by Chief Justice Rehnquist and Justices Scalia and Thomas — concluded that whether a municipal ordinance is “ ‘designed to serve a substantial government interest and does not unreasonably limit alternative avenues of communication’ ... requires [courts to] ... ask[ ] whether the municipality can demonstrate a connection between the speech regulated by the ordinance and the secondary effects that motivated the adoption of the ordinance.” Id. at 1737. According to the plurality, this requirement is met if the evidence upon which the municipality enacted the regulation “ ‘is reasonably bé-lieved to be relevant’ for demonstrating a connection between [secondary effects producing] speech and a substantial, independent government interest.” Id. at 1736. The plurality stressed that once a municipality presents a rational basis for addressing the secondary effects of adult entertainment through evidence that “fairly supports] the municipality’s rationale for its ordinance,” id., the plaintiff challenging the constitutionality of the ordinance must “cast direct doubt on this rationale, either by demonstrating that the municipality’s evidence does not support its rationale or by furnishing evidence that disputes the municipality’s factual findings.” Id. If a plaintiff fails to cast doubt" }, { "docid": "17605295", "title": "", "text": "at 291 (quoting City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986)) (citing Lakeland Lounge v. Jackson, 973 F.2d 1255, 1257-58 (5th Cir.1992)). Time, place, and manner restrictions on speech violate the First Amendment unless they are content-neutral, are designed to serve a substantial governmental interest, do not unreasonably limit alternative avenues of communication, and are narrowly tailored. See Encore Videos, 330 F.3d at 291-92. Kennedale’s ordinances meet the narrow tailoring standard if they “target! ] and eliminate! ] no more than the exact source of the evil [they] seek! ] to remedy.” Encore Videos, 330 F.3d at 293; Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). Thus, an ordinance meant to deter property depreciation may only regulate businesses for which a connection to property depreciation can be demonstrated. To show that an ordinance advances its goals, a city “may rely on any evidence that is ‘reasonably believed to be relevant.’ ” Alameda Books, 535 U.S. at 438, 122 S.Ct. 1728. However, “[t]his is not to say that a municipality can get away with shoddy data or reasoning. The municipality’s evidence must fairly support the municipality’s rationale for its ordinance.” Id. at 438, 122 S.Ct. 1728. On-site businesses (i.e., adult theaters or strip clubs) pose a greater threat of secondary effects than off-site sexually oriented businesses (i.e., adult bookstores). Therefore, a city that enforces an ordinance meant to prevent harmful secondary effects associated with the operation of an off-site business must rely on evidence showing that off-site businesses, rather than the broader category of sexually oriented businesses that includes on-site businesses, cause harmful secondary effects. Encore Videos, 330 F.3d at 295 (requiring city to “provide at least some substantial evidence of secondary effects specific to adult businesses that sell books or videos solely for off-site entertainment” to meet narrow tailoring requirement). In Encore Videos, we invalidated San Antonio’s ordinance regulating sexually oriented businesses because the city failed to present adequate evidence showing a connection between off-site businesses and harmful secondary effects. San Antonio’s evidence consisted" }, { "docid": "16232477", "title": "", "text": "cert. denied, 529 U.S. 1053, 120 S.Ct. 1553, 146 L.Ed.2d 459 (2000). 1. Are the Ordinances Content Neutral? A zoning ordinance is analyzed as a time, place, and manner restriction on speech “if the predominant purpose of the ordinance is the amelioration of secondary effects in the surrounding community.” Id. at 551. Secondary effects are “regulatory targets that happen to be associated with the type of speech.” Boos v. Barry, 485 U.S. 312, 320, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988). Plaintiff contends that is not the predominant purpose of the Ordinances at issue in this case and indeed, that the Ordinances are a pretext for suppressing protected speech. Plaintiff relies on the Supreme Court’s recent decision in City of Los Angeles v. Alameda Books, 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002), and suggests that Alameda Books represents a new and different approach to the constitutional analysis of adult entertainment zoning ordinances. While Alame-da Books may clarify existing precedent, this court is not persuaded that it fundamentally alters the legal landscape regarding adult entertainment zoning ordinances. The plurality opinion in Alameda Books observed that the Renton analysis distinguishes the inquiry into whether a municipal ordinance is content neutral from the inquiry into whether it is “designed to serve a substantial governmental interest and do[es] not unreasonably limit alternative avenues of communication.” 122 S.Ct. at 1737, quoting Renton, 475 U.S. at 47-54, 106 S.Ct. 925. The former inquiry requires courts to verify that the “predominate concerns” motivating the ordinance “were with the secondary effects of adult [speech], and not with the content of adult [speech].” Id. quoting Renton, 475 U.S. at 47, 106 S.Ct. 925. The latter inquiry goes a step further and asks whether the municipality can demonstrate a connection between the speech regulated by the ordinance and the secondary effects that motivated the adoption of the ordinance. According to the Court, “[o]nly at this stage did Renton contemplate that courts would examine evidence concerning regulated speech and secondary effects.” Id, citing Renton, 475 U.S. at 50-52, 106 S.Ct. 925. It does not appear that Justice Kennedy," }, { "docid": "9449192", "title": "", "text": "substantial government interest and is not narrowly tailored, it is unnecessary for us to separately analyze whether the Ordinance leaves open reasonable alternate channels of communication. C. Applying Renton/Alameda Books Beyond Sexually Explicit Speech As a final matter, we observe that challenging questions are raised by the Ordinance’s expansiveness. While we applied the Renton/Alameda Books framework in reviewing the constitutionality of the Ordinance, it is unclear how “sexual” in nature regulated speech must be to warrant the Renton/Alameda Books analysis. Even under our narrow reading of “exotic dancing,” a number of expressive activities may fall within Rockford’s definition that are not ordinarily regulated under a secondary effects theory. It is important to keep in mind that the Ordinance does not apply to nude dancing or other forms of nude entertainment. A survey of the laws challenged on secondary effects grounds in leading Supreme Court and Seventh Circuit cases illustrates the unusual breadth of the Ordinance. See Alameda Books, 535 U.S. at 425, 122 S.Ct. 1728 (prohibiting “Adult Entertainment Businesses” from operating in the same building); City of Erie v. Pap’s A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (restricting public nudity); Banes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (same); Renton, 475 U.S. at 41, 106 S.Ct. 925 (regulating the location of adult motion picture theaters); G.M. Enterprises, 350 F.3d at 631 (regulating nude dancing); Ben’s Bar, 316 F.3d at 702 (prohibiting the sale, use, and con sumption of alcohol on the premises of “Sexually Oriented Businesses” ). As these cases demonstrate, courts have upheld a number of restrictions on sexually explicit expression that falls short of obscenity. However, what constitutes sexually explicit but non-obscene expression can be difficult to define. Previously, regulating nudity or semi-nudity has served as a common link in the laws enacted by municipalities pertaining to sexually explicit expression. The uniqueness of the Ordinance is that it removes nudity from the calculus and seeks to regulate clothed individuals. The challenge attendant to this legislative leap may be that it cuts a broader swath across expression and" }, { "docid": "19939284", "title": "", "text": "San Antonio Ordinance # 87443 § 1(2). The city justifies this ordinance on the ground that it will reduce the adverse secondary effects (such as increased crime and the reduction of property values) of sexually oriented businesses. Therefore, in order to demonstrate that the ordinance is narrowly tailored, the city must show that the ordinance addresses these problems. To establish that Ordinance #87443 passes the narrow tailoring test, the city relies on three studies of the secondary effects of adult businesses, all conducted in other cities: one in Seattle, Washington, in 1989, another in Austin, Texas, in 1986, and the third in Garden Grove, California, in 1991. The city is “entitled to rely on the experiences ... of other cities ... so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.” City of Renton, 475 U.S. at 51-52, 106 S.Ct. 925; see City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (confirming that “a municipality may rely on any evidence that is ‘reasonably believed to be relevant’ for demonstrating a connection between speech and a substantial, independent government interest” (quoting City of Renton, 475 U.S. at 51-52, 106 S.Ct. 925)). However, these studies do not support the city’s extensive regulation of sexually oriented businesses. The studies either entirely exclude establishments that provide only take-home videos and books (as is the case with the Seattle study) or include them but do not differentiate the data collected from such businesses from evidence collected from enterprises that provide on-site adult entertainment — as may have been the case with the Austin and Garden Grove studies. Off-site businesses differ from on-site ones, because it is only reasonable to assume that the former are less likely to create harmful secondary effects. If consumers of pornography cannot view the materials at the sexually oriented establishment, they are less likely to linger in the area and engage in public alcohol consumption and other undesirable activities. See World Wide Video, Inc. v. City of Tukwila, 117" }, { "docid": "19939283", "title": "", "text": "tailoring standard if it “targets and eliminates no more than the exact source of the evil it seeks to remedy.” Frisby, 487 U.S. at 485, 108 5.Ct. 2495. Although government need not choose the “least intrusive means” to advance its legitimate interests, it “may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” Ward, 491 U.S. at 799, 109 S.Ct. 2746. Ordinance # 87443 prohibits sexually oriented businesses from being within 1000 feet of other sexually oriented businesses or residential areas, churches, schools, or parks. The ordinance defines “sexually oriented business” broadly. The regulation applies not only to establishments at which individuals can view sexually explicit materials on site, but also to establishments that do not permit on-site viewing (■ie., businesses at which individuals can buy or rent sexually explicit materials for at-home viewing). In addition, the ordinance applies to any bookstore, novelty store, or video store that devotes over 20% of its inventory or floor space to sexually explicit materials. San Antonio Ordinance # 87443 § 1(2). The city justifies this ordinance on the ground that it will reduce the adverse secondary effects (such as increased crime and the reduction of property values) of sexually oriented businesses. Therefore, in order to demonstrate that the ordinance is narrowly tailored, the city must show that the ordinance addresses these problems. To establish that Ordinance #87443 passes the narrow tailoring test, the city relies on three studies of the secondary effects of adult businesses, all conducted in other cities: one in Seattle, Washington, in 1989, another in Austin, Texas, in 1986, and the third in Garden Grove, California, in 1991. The city is “entitled to rely on the experiences ... of other cities ... so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.” City of Renton, 475 U.S. at 51-52, 106 S.Ct. 925; see City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (confirming that" }, { "docid": "9449171", "title": "", "text": "forms of mainstream dancing to touch parts of the body, including the breasts and pelvic area. It was also her opinion that the Ordinance’s clothing definition encompasses a wide range of dance costumes, uniforms, and practice attire. At the conclusion of the hearing, the district court issued an opinion finding in favor of Rockford, denying the injunction requests and dismissing the entire case with prejudice. The district court found that the Ordinance was not an unconstitutional prior restraint. Furthermore, the court found that the Ordinance was a proper time, place, and manner restriction because Rockford was entitled to rely on its experience that Exotic Dancing Nightclubs cause undesirable secondary effects. The district court also found that the Ordinance was not unconstitutionally vague or overbroad. RVS appeals the district court’s decision with respect to its determination that the Ordinance is not a prior restraint and that sufficient evidence exists to uphold the Ordinance on a secondary effects rationale. II. Discussion A. Legal Framework In Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), the Supreme Court applied a three-step analysis in reviewing the First Amendment validity of a municipal zoning ordinance that regulated adult movie theaters. The Renton analysis instructs courts reviewing regulations of adult entertainment establishments to consider: (1) whether the regulation constitutes an invalid total ban or merely a time, place, and manner regulation, (2) whether the regulation is content-based or content-neutral, and accordingly, whether strict or intermediate scrutiny is to be applied, and (3) if content-neutral, whether the regulation is designed to serve a substantial government interest and allows for reasonable alternative channels of communication. In upholding a ban on multiple-use adult establishments, the plurality opinion in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002), adhered to the Renton framework. However, in his concurrence, Justice Kennedy joined the four dissenters, id. at 455-56, 122 S.Ct. 1728, in eschewing the content-neutral “fiction” of adult entertainment zoning ordinances. Id. at 448, 122 S.Ct. 1728 (“These ordinances are content based and we should call them" }, { "docid": "832240", "title": "", "text": "89 L.Ed.2d 29 (1986), the Supreme Court established that ordinances targeting the so-called “secondary effects” of adult businesses are analyzed as regulations aimed at the time, place, and manner of speech. Id. at 46, 106 S.Ct. 925. Such a regulation will be upheld if it is content neutral, “narrowly tailored to serve a significant governmental interest,” and if it “leaves open ample alternative channels of communication.” Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683, 688 (10th Cir.1998). Roy City’s ordinance was enacted to protect against negative secondary effects and thus meets the “content-neutral” prong. See, e.g., id. at 686-87. Further, Dr. John’s does not argue that the ordinance fails to leave open alternative means of communication; thus, the only question on appeal is whether the ordinance is narrowly tailored to serve a significant government interest. It is well established that combating the secondary effects of adult businesses is a “significant governmental interest.” See, e.g., City of Renton, 475 U.S. at 50, 106 S.Ct. 925; Z.J. Gifts D-2, 136 F.3d at 688. Dr. John’s does not challenge that principle, but rather contends it is simply not the kind of adult business that can be thought to produce negative secondary effects. Specifically, Dr. John’s argues that the studies cited in support of the Roy City ordinance do not consider businesses (like Dr. John’s) that sell materials only for off-site consumption, carry only a “small amount of adult videos” along with “a substantial inventory of general merchandise,” and have a clientele that is 40% women. In order to show that a challenged ordinance promotes a significant government interest, “the government bears the burden of providing evidence of secondary effects, where it relies on those secondary effects as the, justification for restricting speech.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1197 n. 8 (10th Cir.2003) (citing City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 437, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (plurality)). In Heideman, we canvassed the Supreme Court’s secondary effects decisions and outlined the basic principles for determining whether this burden has been met." }, { "docid": "12273080", "title": "", "text": "subject to strict scrutiny. Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 115, 118, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991); Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 230-231, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987). We held, however, that the Renton ordinance was aimed not at the content of the films shown at adult theaters, but rather at the secondary effects of such theaters on the surrounding community, namely, at crime rates, property values, and the quality of the city’s neighborhoods. Therefore, the ordinance was deemed content neutral. Renton, supra, at 47-49, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29. Finally, given this finding, we stated that the ordinance would be upheld so long as the city of Renton showed that its ordinance was designed to serve a substantial government interest and that reasonable alternative avenues of communication remained available. 475 U.S., at 50, 106 S.Ct. 925, 89 L.Ed.2d 29. We concluded that Renton had met this burden, and we upheld its ordinance. Id., at 51-54, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29. Alameda Books, Inc., 535 U.S. at 433-34, 122 S.Ct. 1728 (emphasis added). Thus, this court must likewise apply the “Renton analysis” and (1) determine whether the City’s amended ordinances constitute a ban on “adult entertainment businesses,” or only a “time place and manner regulation”; (2) determine whether the amended ordinances are “content neutral” or “content based”; and (3)(a) if the amended ordinances are found to be “content neutral,” determine whether they are “designed to serve a substantial government interest” and whether “reasonable alternative avenues of communication remain available,” or (b) if the amended ordinances are found to be “content based,” apply “strict scrutiny” to determine the validity of the amended ordinances. c. Preliminary application of the law i. “Ban” or “time, place, and manner” regulation? As the Supreme Court has explained, an ordinance that does not ban adult businesses altogether, but merely requires that they be distanced from certain sensitive locations, see Renton, 475 U.S. at 46, 106 S.Ct. 925, or not allowed to" } ]

[ { "docid": "6627036", "title": "", "text": "BREYER, Chief Judge. Gerald Harris has been convicted of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). He appeals the fifteen-year sentence that a sentence-enhancement statute requires the district court to impose when a gun-possessing felon “has three previous convictions ... for violent felon[ies].” 18 U.S.C. § 924(e)(1). He claims that the court should not have counted as “violent felonies,” two of his previous Massachusetts convictions for “assault and battery. Harris makes two arguments, neither of which warrants resentencing. I The Supreme Court has held that, in determining whether a prior offense is a “violent felony” for sentence-enhancement purposes, the sentencing court should “look only to the fact of conviction and the statutory definition of the prior offense.” Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 2160, 109 L.Ed.2d 607 (1990). The Court recognized that, sometimes, looking to the “statutory definition” alone will not establish whether or not the prior offense was a “violent felony,” for some statutes contain language in a single section that covers several separate crimes, some of which are “violent” and some of which are not. For example, a burglary statute might forbid breaking into and entering “a building, ship, vessel or vehicle.” Mass.Gen.L. ch. 266, § 16; cf. Taylor, 110 S.Ct. at 2159. Such language forbids both burglaries of a “building,” which are “violent felonies,” and other types of burglaries (of a “ship, vessel or vehicle”), which are not violent felonies. See id. at 2158-59. Faced with a prior conviction under such a statute, a sentencing court, the Supreme Court says, may look to “the indictment or information and jury instructions” to determine whether the defendant was convicted of the “violent felony” type, or the other type, of offense under the statute. Id. at 2160; 18 U.S.C. § 924(e)(2)(B); see also United States v. Bregnard, 951 F.2d 457, 459-60 (1st Cir.1991), petition for cert. filed, 60 U.S.L.W. 3689 (U.S. Mar. 20, 1992) (No. 91-1517); cf. United States v. Doe, 960 F.2d 221, 224-25 (1st Cir.1992). What, however, should a court do when there are no jury instructions to look" } ]

[ { "docid": "22438038", "title": "", "text": "921(a)(33)(A)(ii). When statutory language dictates that predicate offenses contain enumerated elements, we must look only to the predicate offense rather than to the defendant's underlying acts to determine whether the required elements are present. See United States v. Wright, 957 F.2d 520, 522 (8th Cir.) (construing United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(1)(i), which defines \"crime of violence\" as an offense that \"has as an element, the use, attempted use, or threatened use of physical force\" (emphasis added)), cert. denied 506 U.S. 856, 113 S.Ct. 167, 121 L.Ed.2d 114 (1992). We may expand our inquiry under this categorical approach to review the charging papers and jury instructions, if applicable, only to determine under which portion of the assault statute Smith was convicted. See Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). This case is quite similar to Taylor, which involved a sentence enhancement under 18 U.S.C. § 924(e) for prior burglaries. The Supreme Court read § 924(e) as requiring the predicate burglary offense to contain the elements of generic burglary, precluding a court from looking to the defendant’s underlying conduct. See Taylor, 495 U.S. at 600-01, 110 S.Ct. 2143. The Court noted that the federal sentencing court could go beyond the mere fact of conviction, for example, and look to the charging papers and jury instructions to determine if the jury was required to actually find the elements of generic burglary in order to convict the defendant. Id. at 602, 110 S.Ct. 2143. The Supreme Court remanded Taylor because the Court could not determine, from the record before it, under which subsection of the Missouri burglary statute the defendant had pleaded guilty and been convicted. Id. On remand, the government produced the charging papers, which detailed the elements of the crimes to which the defendant had pleaded guilty, though the papers did not include a reference to the specific section of the state burglary statute. See United States v. Taylor, 932 F.2d 703, 707 (8th Cir.), cert. denied, 502 U.S. 888, 112 S.Ct. 247, 116 L.Ed.2d 202 (1991). On appeal from the remand," }, { "docid": "2406614", "title": "", "text": "with U.S.S.G. § 4B1.2 (defining “crime of violence”). Having recently decided in Doe that the crime of being a convicted felon in knowing possession of a firearm is not a “violent felony” and hence cannot be counted as a predicate offense required for sentencing under the armed career criminal guideline, Doe, 960 F.2d at 226, we must now decide whether such a crime, freshly committed, is a “crime of violence” that can energize the career offender guideline. A. The touchstone of our analysis is the Supreme Court’s opinion in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Taylor, fairly read, dictates that a sentencing court, in determining whether a crime constitutes a violent felony under 18 U.S.C. § 924(e), should look at the crime categorically, that is, the. sentencing court should “look only to the fact of conviction and the statutory definition of the ... offense,” and not to the underlying circumstances. Id. 110 S.Ct. at 2160; see also United States v. Harris, 964 F.2d 1234, 1235 (1st Cir.1992) (discussing Taylor); Doe, 960 F.2d at 223-224; United States v. Bregnard, 951 F.2d 457, 459 (1st Cir.1991) (Taylor’s categorical approach should be applied to all “candidate” predicate crimes under 18 U.S.C. § 924(e)), cert. denied, - U.S.-, 112 S.Ct. 2939, 119 L.Ed.2d 564 (1992). Since the case at bar has a slightly different focus than the Taylor case, we believe that careful parsing of the Court’s opinion is helpful. Taylor involved the government’s attempt to use an earlier conviction for burglary as a predicate for an enhancement under the Armed Career Criminal Act. The Court identified three reasons why consideration of prior offenses should normally be restricted to the parameters of the statute under which the offender had been convicted. First, the lan guage of 18 U.S.C. § 924(e) “support[ed] the inference that Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.” Taylor, 110 S.Ct. at 2159. Second, the legislative history of" }, { "docid": "8865161", "title": "", "text": "their § 922(g) convictions should not have been enhanced for career offender or armed career criminal status. U.S.S.G. §§ 4B1.1, 4B1.4. The government concedes Canon and Delang should have been sentenced without reliance upon the career offender provisions. We review de novo the legality of the armed career criminal enhancements. United States v. Hahn, 960 F.2d 903, 907 (9th Cir.1992). Canon and Delang are armed career criminals under Guidelines § 4B1.4. Canon and Delang violated § 922(g), and each has three prior violent felony convictions. 18 U.S.C. § 924(e). Under § 924(e), Canon’s single armed robbery conviction and Delang’s three armed robbery convictions are for violent felonies. United States v. Antonie, 953 F.2d 496, 498-99 (9th Cir.1991), cert. denied, - U.S. -, 113 S.Ct. 138, 121 L.Ed.2d 91 (1992). The burglary statute under which Canon was convicted substantially corresponds to “generic” burglary; thus, that conviction is for a violent felony. Tex.Penál Code § 30.02; Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 2158, 109 L.Ed.2d 607 (1990). Because possession of a sap is “presumptive evidence of unlawful violent intentions” and necessarily entails a “serious potential risk of physical injury to another,” this felony conviction also qualifies. 18 U.S.C. § 924(e)(2)(B)(ii); United States v. Dunn, 946 F.2d 615, 621 (9th Cir.), cert. denied, - U.S. -, 112 S.Ct. 401, 116 L.Ed.2d 350 (1991); see Cal.Penal Code § 12020 (statute under which Canon was convicted); People v. Johnson, 72 Cal.App.3d 52, 55, 139 Cal.Rptr. 811, 813 (1977) (proof of “possession alone” suffices to convict under § 12020). On remand, the district court shall sentence Canon and Delang as armed career criminals, but not as career offenders. IV Canon and Delang maintain that prosecution in federal court violated their due process and equal protection rights. They have not, however, shown prima facie that the prosecutor’s charging decision rested on an impermissible factor, such as race, gender or religion. In these circumstances, we lack authority to review the charging decision. United States v. Sitton, 968 F.2d 947, 953 (9th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1306, 122 L.Ed.2d 695" }, { "docid": "23322809", "title": "", "text": "a review of relevant portions of the record underlying the prior convictions, including a review of the charging documents, ... showed that this defendant had been convicted of actual bank robbery pursuant to the first paragraph of 18 U.S.C. § 2113(a).” Id.; see also United States v. Mendez, 992 F.2d 1488, 1490-92 (9th Cir.1993) {Mendez) (holding conspiracy to rob in violation of 18 U.S.C. § 1951 a crime of violence for purposes of 18 U.S.C. § 924(c) even though section 1951 also covers conspiracy to extort among other crimes), cert. denied, — U.S. -, 114 S.Ct. 262, 126 L.Ed.2d 214 (1993). Likewise, in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160, 109 L.Ed.2d 607 (1990), the Supreme Court suggested that the categorical approach ... may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of eases where a jury was actually required to find all the elements of generic burglary. For example, in a State whose burglary statutes include entry of an automobile as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for en hancement [pursuant to 18 U.S.C. § 924(e)], (Emphasis added.) 18 U.S.C. § 3 does not describe the accessory after the fact crime “using several permutations, any one of which constitutes the same offense.” Mendez, 992 F.2d at 1490. Rather, the same statutory definition applies to every accessory after the fact conviction regardless of the nature of the underlying federal offense, whether it be murder for hire or tax evasion. Under the categorical approach, therefore, we are barred from going beyond the statutory definition of the offense in determining whether Innie’s prior felony conviction as an accessory after the fact to murder for hire was a crime of violence. Indeed, any different interpretation would leave United States v. Young, 990 F.2d 469, 472 (9th" }, { "docid": "12548259", "title": "", "text": "Gutierrez, 20 of which were semi-automatic handguns. ATF agents arrested Stevens and Gutierrez in July 1991. Both were indicted for knowingly making false statements in connection with the gun purchases in violation of 18 U.S.C. § 922(a)(6), and for aiding and abetting in violation of 18 U.S.C. § 2. Ste- yens was also indicted for possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Both men pleaded guilty to the crimes charged. In sentencing Stevens, the court applied the Armed Career Criminal Provision, § 4B1.4, of the sentencing guidelines, and sentenced him to 188 months imprisonment, supervised release of five years, and a $10,000 fine. In sentencing Gutierrez, the court departed upward from the guidelines, and sentenced him to 30 months imprisonment, supervised released of three years, and a $25,000 fine. Neither Stevens nor Gutierrez objected during sentencing, but both now complain on appeal, asking this Court to reverse and remand for resen-tencing. ANALYSIS Because Appellants failed to object during sentencing, we review their sentences for plain error. United States v. Navejar, 963 F.2d 732, 734 (5th Cir.1992). “[Plain error] is a mistake so fundamental that it constitutes a ‘miscarriage of justice.’ ” Id. (quoting United States v. Lopez, 923 F.2d 47 (5th Cir.1991), cert. denied, — U.S. -, 111 S.Ct. 2032, 114 L.Ed.2d 117 (1.991)). STEVENS’S SENTENCE The following path led the court to § 4B1.4 of the sentencing guidelines, under which Stevens was sentenced. Stevens’s three prior burglary convictions and his aggravated crime against nature conviction, when combined with his guilty plea for shipping firearms interstate in violation of 18 U.S.C. § 922(g)(1), activated 18 U.S.C. § 924(e). Section 924(e) provides: In the case of a person who violates § 922(g) of this title and has three previous convictions by any court referred to in § 922(g)(1) of this title for a violent felony ... committed on occasions different from one another, such person shall be fined not more than $25,000 and imprisoned not less, than 15 years ■... In turn, § 924(e) activated the Armed Career Criminal provision, §" }, { "docid": "23135169", "title": "", "text": "in the indictment at issue in this case (possession of between twenty-eight and two hundred grams of cocaine), Brandon’s 1994 conviction is not a conviction for a serious drug offense under section 924(e)(2)(A)(ii). And without the 1994 conviction, Brandon’s criminal history does not qualify him as an armed career criminal under section 924(e). We therefore vacate Brandon’s sentence and remand for resentencing. VACATED AND REMANDED. . Although Taylor involved the determination of whether a prior conviction should be considered a burglary conviction under section 924(e)(2)(B)(ii), we have applied its categorical approach and its approval of limited review of the charging papers and jury instructions to cases involving other crimes under subsections (2)(B)(i) and (2)(B)(ii). See United States v. Frazier-El, 204 F.3d 553, 562 (4th Cir.), cert. denied, - U.S. -, 121 S.Ct. 487, 148 L.Ed.2d 459 (2000); United Stales v. Hairston, 71 F.3d 115, 117-18 (4th Cir.1995); Cook, 26 F.3d at 510. This approach is equally applicable to the determination of whether a prior conviction is for a \"serious drug felony” under section 924(e)(2)(A). See Taylor, 495 U.S. at 602, 110 S.Ct. 2143 (\"We think the only plausible interpretation of § 924(e)(2)(B)(ii) is that, like the rest of the enhancement statute, it generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense.”); United States v. Bregnard, 951 F.2d 457, 459 (1st Cir.1991) (\"Although Taylor involved the analysis of a crime specifically listed in § 924(e)(2)(B)(ii), the Supreme Court adopted a formal categorical approach applicable to the entire enhancement statute.”). . We recognize that there are decisions from other circuits that might appear to reach a different conclusion. But those cases in fact do not address the precise issue we confront here. For example, in United States v. Whitfield, 907 F.2d 798, 800 (8th Cir.1990), the court concluded that a conviction for trafficking based on possession of heroin was not a conviction for a serious drug offense under section 924(e)(2)(A)(ii). There is no indication in Whitfield, however, whether the decision was premised on a conclusion that intent to distribute or" }, { "docid": "1286111", "title": "", "text": "then stated that because “[tjhere is no similar definition governing the ‘otherwise’ clausef ] and no means by which to control the inquiry and prevent it from becoming the kind of factual investigation that Taylor sought to avoid” we may not look to the charging document, jury instruction, or guilty plea in making the violent felony determination under subsection (ii). Id. Thus, Permenter demands that this court follow only the categorical approach in determining whether the intimidation conviction qualifies under § 924(e)(2)(B)(ii). See King, 979 F.2d at 804 (stating that Tenth Circuit cases require court to examine only the elements of the crime to determine whether conviction is violent felony). But see United States v. Cook, 26 F.3d 607, 510 (4th Cir.1994) (rejecting argument “that Taylor’s, instruction to examine the charging papers and jury instructions of a prior conviction to determine whether it constitutes a ‘violent felony’ applies only to cases under § 924(e)(2)(B)(ii) involving prior” burglary convictions); United States v. Bregnard, 961 F.2d 457, 459 (1st Cir.1991) (stating that Taylor approach is applicable to the entire enhancement statute, not just to crimes enumerated in § 924(e)(2)(B)(ii)). On its face, the definition of the intimidation offense allows a person to be convicted for acts against property, and, therefore, the statute does not necessarily present circumstances which involve a serious potential risk of physical injury to a person. Accordingly, the conviction does not qualify under the “otherwise” clause of 18 U.S.C. § 924(e)(2)(B)(ii). See Permenter, 969 F.2d at 914-15; United States v. Sherbondy, 865 F.2d 996, 1011 (9th Cir.1988) (stating that where a statute “is overly broad or inclusive, subsection (ii) is not applicable”), cf. United States v. Parker, 5 F.3d 1322, 1326 (9th Cir.1993) (refusing to apply Taylor exception in case involving “otherwise” clause of § 924(e)(2)(B)(ii) and strongly noting that Taylor permitted a deviation from the categorical approach only in burglary cases). I am now left with the question of whether, under Permenter, a court may look to the underlying charging document and guilty plea “to determine whether [the defendant] was charged with and admitted conduct which falls without" }, { "docid": "20371263", "title": "", "text": "LOKEN, Circuit Judge. This is a post-conviction proceeding under 28 U.S.C. § 2255 in which the district court vacated Norman Ray Woodall’s sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), because his trial counsel provided ineffective assistance in not objecting to an inadequate showing of the requisite prior “violent felony” convictions. Woodall appeals the court’s additional ruling that the Double Jeopardy Clause of the Fifth Amend ment does not bar his resentencing under § 924(e)(1). We affirm. I. Woodall was tried and convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was also charged with violating § 924(e)(1), a sentence enhancement statute requiring a mandatory minimum fifteen-year prison sentence for § 922(g) violators who have at least three prior violent felony convictions. A § 924(e)(1) violation is determined at sentencing. See United States v. Washington, 992 F.2d 785, 787 (8th Cir.), cert. denied, — U.S. -, 114 S.Ct. 356, 126 L.Ed.2d 320 (1993). “Violent felony” is defined in § 924(e) to include “burglary.” See § 924(e)(2)(B). Three months before Woodall was sentenced, the Supreme Court held “that an offense constitutes ‘burglary’ for purposes of a § 924(e) enhancement if either its statutory definition substantially corresponds to ‘generic’ burglary, or the charging paper and jury instructions actually required the jury to find all the elements of generic burglary.” Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160, 109 L.Ed.2d 607 (1990). Woodall’s presentence investigation report (“PSR”) listed five burglary convictions in Texas state court but did not provide information showing that they were “generic” burglaries under Taylor. Woodall did not object to this portion of the PSR, nor did he contend at sentencing that the burglary convictions were not prior violent felonies for purposes of § 924(e)(1). The district court sentenced him to fifteen years in prison based upon the information contained in the PSR. He appealed his conviction and sentence on other grounds, and we affirmed. United States v. Woodall, 938 F.2d 834 (8th Cir.1991). Woodall moved for § 2255 relief, claiming that he received" }, { "docid": "1286110", "title": "", "text": "under subsection (ii)). This means that, under the categorical approach, Defendant’s 1990 conviction for intimidating a witness cannot qualify as a violent felony for enhancement purposes. In apparent recognition of the fact that Defendant’s intimidation conviction does not qualify as a violent felony under the categorical approach, the Government argues that this court may apply the exception outlined by the Supreme Court in Taylor and examine the charging documents and guilty plea to determine if the intimidation conviction qualifies under 18 U.S.C. § 924(e). My review, however, is restricted because this court limited the applicability of the Taylor exception in Permenter. In that case, we held that a court may utilize only the purely categorical approach to determine whether a non-enumerated conviction qualifies as a violent felony under the “otherwise” clause of § 924(e)(2)(B)(ii). See Permenter, 969 F.2d at 914. The court reasoned that reference to supporting information such as a charging document or a jury instruction serves only to determine whether a defendant is actually convicted of “burglary” as defined by Taylor. The court then stated that because “[tjhere is no similar definition governing the ‘otherwise’ clausef ] and no means by which to control the inquiry and prevent it from becoming the kind of factual investigation that Taylor sought to avoid” we may not look to the charging document, jury instruction, or guilty plea in making the violent felony determination under subsection (ii). Id. Thus, Permenter demands that this court follow only the categorical approach in determining whether the intimidation conviction qualifies under § 924(e)(2)(B)(ii). See King, 979 F.2d at 804 (stating that Tenth Circuit cases require court to examine only the elements of the crime to determine whether conviction is violent felony). But see United States v. Cook, 26 F.3d 607, 510 (4th Cir.1994) (rejecting argument “that Taylor’s, instruction to examine the charging papers and jury instructions of a prior conviction to determine whether it constitutes a ‘violent felony’ applies only to cases under § 924(e)(2)(B)(ii) involving prior” burglary convictions); United States v. Bregnard, 961 F.2d 457, 459 (1st Cir.1991) (stating that Taylor approach is applicable to" }, { "docid": "3601144", "title": "", "text": "Mr. Lujan also contends that his burglary conviction should have been excluded because it is ancient under section 4A1.2(e) of the Sentencing Guidelines. This section states that “Any ... prior sentence that was imposed within ten years of the defendant’s commencement of the instant offense is counted.” Mr. Lujan argues that because his conviction for burglary was more than twenty years old, it should not have been included under 18 U.S.C. § 924(e)(1). Section 4B1.4 of the Sentencing Guidelines, entitled Armed Career Criminal, is the section that implements 18 U.S.C. § 924(e). U.S.S.G. § 4B1.4, at 268, Background (1993). According to the application notes, “the time periods for the counting of prior sentences under § 4A1.2” are not applicable to sentence enhancement determinations under section 924(e). Id. at 267, Application Note 1. Section 4A1.2 of the Sentencing Guidelines therefore does not prohibit Mr. Lujan’s burglary conviction from being used as a prior conviction under the ACCA. The ACCA itself does not place any time period restriction on prior convictions considered for sentence enhancement. Other circuits have uniformly rejected arguments that a limitation exists or should be created. United States v. Daniels, 3 F.3d 25, 28 (1st Cir.1993); United States v. Alverez, 972 F.2d 1000, 1006 (9th Cir.1992), cert. denied, — U.S.—, 113 S.Ct. 1427, 122 L.Ed.2d 795 (1993); United States v. Blankenship, 923 F.2d 1110, 1118 (5th Cir.), cert. denied, — U.S.—, 111 S.Ct. 2262, 114 L.Ed.2d 714 (1991); United States v. McConnell, 916 F.2d 448, 450 (8th Cir.1990); United States v. Preston, 910 F.2d 81, 89 (3rd Cir.1990), cert. denied, 498 U.S. 1103, 111 S.Ct. 1002, 112 L.Ed.2d 1085 (1991); United States v. Green, 904 F.2d 654, 655 (11th Cir.1990). We similarly decline to conclude that prior convictions should be eliminated from consideration under the ACCA because they are ancient. Accordingly, we AFFIRM the enhancement of Mr. Lujan’s sentence. . \"Significantly, § 924(e)(1) is a penalty enhancement, not a separate substantive crime.” United States v. Johnson, 973 F.2d 857, 859 (10th Cir.1992)." }, { "docid": "9344547", "title": "", "text": "analysis of a crime specifically listed in § 924(e)(2)(B)(ii), the Supreme Court adopted a formal categorical approach applicable to the entire enhancement statute. Under this categorical approach, the sentencing court examines “the statutory definitions of the prior offenses, and not ... the particular facts underlying those convictions.” 110 S.Ct. at 2159. However, in a narrow range of cases, the sentencing court goes beyond the “mere fact of conviction” to the charging papers or jury instructions to determine whether the prior offense is a violent felony under § 924(e). Id. at 2160. Both of Bregnard’s assault and battery convictions were under Mass.Gen.L. ch. 265, § 13A, which provides that “[w]ho-ever commits an assault or an assault and battery upon another shall be punished by imprisonment for not more than two and one half years.” The government concedes that the Massachusetts assault and battery statute includes conduct that does not constitute a violent crime. Therefore, this is a case where the court must look beyond the statute to determine whether the assault and battery convictions involved crimes which had “as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The district court relied on the presentence report’s description of the offenses to conclude that Bregnard had committed three previous violent felonies. Bregnard did not object to the factual narrative of his prior convictions, nor has he asserted that it was erroneous for the district court to rely on the presentence report. Time and again we have held that facts stated in presentence reports are deemed admitted if they are not challenged in the district court. See, e.g., United States v. Dietz, 950 F.2d 50, 55-56 (1st Cir.1991); United States v. Wilkinson, 926 F.2d 22, 29 (1st Cir.), cert. denied, — U.S. —, 111 S.Ct. 2813, 115 L.Ed.2d 985 (1991). Cf. United States v. Payton, 918 F.2d 54, 56 (8th Cir.1990) (holding that defendant’s admission at sentencing hearing that he had committed generic burglary coupled with the description in the information of the conviction for burglary was sufficient to find generic" }, { "docid": "9344548", "title": "", "text": "which had “as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The district court relied on the presentence report’s description of the offenses to conclude that Bregnard had committed three previous violent felonies. Bregnard did not object to the factual narrative of his prior convictions, nor has he asserted that it was erroneous for the district court to rely on the presentence report. Time and again we have held that facts stated in presentence reports are deemed admitted if they are not challenged in the district court. See, e.g., United States v. Dietz, 950 F.2d 50, 55-56 (1st Cir.1991); United States v. Wilkinson, 926 F.2d 22, 29 (1st Cir.), cert. denied, — U.S. —, 111 S.Ct. 2813, 115 L.Ed.2d 985 (1991). Cf. United States v. Payton, 918 F.2d 54, 56 (8th Cir.1990) (holding that defendant’s admission at sentencing hearing that he had committed generic burglary coupled with the description in the information of the conviction for burglary was sufficient to find generic burglary under Taylor). The presentence report relates that on July 8, 1976, Bregnard pled guilty to assaulting one Jeffrey Hayden with intent to cause physical harm and injury. He received an eleven month sentence. On January 28, 1984, Bregnard and an accomplice waited for Wilfred Cameron as he was leaving his home. When Cameron attempted to resist, Bregnard and his companion assaulted him. Bregnard was charged with assault and battery and larceny. Although the larceny count was not prosecuted because the victim recanted his testimony on that count, Bregnard pled guilty to the assault and battery charge and received a one year suspended sentence. These facts, underlying both convictions for assault and battery, leave no doubt that Bregnard’s conduct “ha[d] as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)©. Congress’ intent in enacting the sentencing enhancement provision of the Armed Career Criminal Act was to strengthen the law enforcement efforts of the states by enhancing the punishment of “career” offenders. Taylor v." }, { "docid": "23054886", "title": "", "text": "crime of violence. The district court in this case found that defendant’s prior conviction was for a crime of violence, in light of both the statutory elements of the offense and the factual description of the conduct underlying the conviction included in the presentence investigation report. Defendant argues, however, that pursuant to Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and United States v. Mack, 8 F.3d 1109 (6th Cir.1993) (per curiam), vacated on other grounds, 53 F.3d 126 (6th Cir.1995), the district court can look only to the statutory elements of defendant’s prior offense to determine if the offense amounted to a crime of violence under the Guidelines. In Taylor, the Supreme Court considered whether a defendant’s conviction on burglary charges constituted a “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), which provides a sentence enhancement for persons convicted of violating the statute who have three previous convictions for “a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1); Taylor, 495 U.S. at 578, 110 S.Ct. at 2147. The definition of a violent felony on which the Court based its decision in Taylor is nearly identical to the definition of a crime of violence used in the Guidelines. Compare 18 U.S.C. § 924(e)(2)(B) with U.S.S.G. § 4B1.2(1). The Court held that sentencing courts are required to employ a categorical approach to determining what constitutes a violent felony and that their inquiry is limited to an examination of the fact of conviction and the statutory definition of the predicate offense. Any specific, underlying facts regarding the offense should be irrelevant to a sentencing court’s determination. Taylor, 495 U.S. at 602, 110 S.Ct. at 2160; see United States v. Lane, 909 F.2d 895, 901 (6th Cir.1990), cert. denied, 498 U.S. 1093, 111 S.Ct. 977, 112 L.Ed.2d 1062 (1991). According to the Supreme Court, the categorical approach avoids the impracticability and unfairness of allowing a sentencing court to engage in a broad factfinding inquiry relating to a defendant’s prior offenses. Taylor, 495 U.S. at 601, 110 S.Ct. at 2159." }, { "docid": "9344542", "title": "", "text": "him with being a convicted felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). On May 15, 1990, the government filed an information charging that the defendant had four prior convictions for violent felonies and therefore qualified as an “armed career” criminal, subject to the enhancement provision of 18 U.S.C. § 924(e). The convictions used by the government were: (1) robbery in 1974; (2) breaking and entering in the night time with intent to commit larceny in 1974; (3) assault and battery in 1976; and (4) assault and battery in 1985. Prior to sentencing, Bregnard filed a motion to dismiss the indictment and a supplemental motion in which he argued, among other things, that two of the predicate offenses — the breaking and entering conviction and the assault and battery convictions — were not within the purview of the § 924(e) enhancement. At sentencing, the district court relied on the presentence report to find that the two assault and battery convictions constituted predicate crimes for the § 924(e) enhancement because both offenses involved the threat or use of physical force on another. Although the district court judge did not specifically rule on whether the breaking and entering conviction was a proper predicate for the enhancement, he suggested that United States v. Patterson, 882 F.2d 595 (1st Cir.1989), cert. denied, 493 U.S. 1027, 110 S.Ct. 737, 107 L.Ed.2d 755 (1990), foreclosed the issue and Bregnard’s argument to the contrary. On appeal, Bregnard raises two issues. First, he argues that the district court erred in finding that the government had proved three prior violent felonies as required under the provision of the enhancement statute, 18 U.S.C. § 924(e). Second, he claims that the enhancement of his sentence on the basis of state convictions labeled misdemeanors by the state, but punishable by a maximum term of more than two years imprisonment, is contrary to Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and amounts to a denial of the equal protection of the law. II The sentencing enhancement provision of the Armed Career" }, { "docid": "23047763", "title": "", "text": "underlying a plea confirmed by McCall. In these circumstances, we conclude that the fact recitals in the PSR are not an adequate basis for affirming McCall’s sentence. This is not a case where the PSR described prior offense conduct without stating its documentary sources. In such cases, we have held that failure to object relieved the government of its obligation to introduce at sentencing the documentary evidence Taylor or Shepard requires. See United States v. Menteer, 408 F.3d 445, 446-47 (8th Cir.2005); United States v. Balanga, 109 F.3d 1299, 1304 & n. 7 (8th Cir.1997); accord United States v. Bregnard, 951 F.2d 457, 460 n. 3 (1st Cir.1991), cert. denied, 504 U.S. 973, 112 S.Ct. 2939, 119 L.Ed.2d 564 (1992). Nor is this a case where the PSR described conduct derived from documents Taylor or Shepard permit. Instead, the PSR expressly relied on police reports and probation records that would be inadmissible at sentencing under Taylor and Shepard. Timothy McCall objected to the § 924(e) enhancement. The minimum sentence mandated by that enhancement is severe, and the parties and the court understandably failed to perceive the governing evidentiary principles that we have now clarified. In these circumstances, we reverse the judgment of the district court and remand the case for further sentencing proceedings at which the government may seek to prove, with evidence admissible under Taylor or Shepard, that McCall’s three prior felony DWI convictions were violent felonies under the “otherwise involves” provision in 18 U.S.C. § 924(e)(2)(B)(ii). For this purpose, the district court may permit the parties to expand the sentencing record, as we have approved in prior cases remanded for re-sentencing in light of Taylor. See United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992); United States v. Taylor, 932 F.2d 703, 707 (8th Cir.), cert. denied, 502 U.S. 882, 112 S.Ct. 232, 116 L.Ed.2d 188 (1991). . Accord United States v. Hargrove, 416 F.3d 486, 494 (6th Cir.2005); United States v. Melton, 344 F.3d 1021, 1026-29 (9th Cir.2003), cert. denied, 541 U.S. 953, 124 S.Ct. 1696, 158 L.Ed.2d 386 (2004); United States v. Howze, 343 F.3d" }, { "docid": "23135168", "title": "", "text": "crime “trafficking.” As noted above, states have widely varying definitions of trafficking. To accept the government’s argument would mean that defendants with prior convictions for possessing the same quantity of cocaine would or would not be subject to sentencing as armed career criminals depending on the state where the underlying conviction occurred, and thus would create the very inconsistencies in punishment that the Supreme Court in Taylor found impermissible. See Taylor, 495 U.S. at 588-89, 110 S.Ct. 2143 (“Congress intended that the enhancement provision be triggered by crimes having certain specified elements, not by crimes that happened to be labeled ‘robbery’ or ‘burglary’ by the laws of the State of conviction.”). III. To summarize, we conclude that “intent to manufacture or distribute” need not be an element of the crime underlying a state conviction for that conviction to be considered a serious drug offense for purposes of sentence enhancement under section 924(e)(2)(A)(ii). Nonetheless, because we cannot say that intent to manufacture or distribute is inherent in the generic conduct prohibited by the statute and alleged in the indictment at issue in this case (possession of between twenty-eight and two hundred grams of cocaine), Brandon’s 1994 conviction is not a conviction for a serious drug offense under section 924(e)(2)(A)(ii). And without the 1994 conviction, Brandon’s criminal history does not qualify him as an armed career criminal under section 924(e). We therefore vacate Brandon’s sentence and remand for resentencing. VACATED AND REMANDED. . Although Taylor involved the determination of whether a prior conviction should be considered a burglary conviction under section 924(e)(2)(B)(ii), we have applied its categorical approach and its approval of limited review of the charging papers and jury instructions to cases involving other crimes under subsections (2)(B)(i) and (2)(B)(ii). See United States v. Frazier-El, 204 F.3d 553, 562 (4th Cir.), cert. denied, - U.S. -, 121 S.Ct. 487, 148 L.Ed.2d 459 (2000); United Stales v. Hairston, 71 F.3d 115, 117-18 (4th Cir.1995); Cook, 26 F.3d at 510. This approach is equally applicable to the determination of whether a prior conviction is for a \"serious drug felony” under section 924(e)(2)(A). See" }, { "docid": "11721551", "title": "", "text": "Under analogous provisions of the criminal code, numerous courts have employed the same reasoning to reach the same result. See, e.g., United States v. Kern, 12 F.3d 122, 126 (8th Cir.1993) (conspiracy to commit bank robbery is crime of violence as defined in 18 U.S.C. § 16); United States v. Mendez, 992 F.2d 1488, 1491-92 (9th Cir.) (conspiracy to rob is crime of violence under 18 U.S.C. § 924(c)(3)) (collecting cases), cert. denied — U.S. -, 114 S.Ct. 262, 126 L.Ed.2d 214 (1993); United States v. Johnson, 962 F.2d 1308, 1311-12 (8th Cir.) (§ 924(c); conspiracy to commit bank robbery), cert. denied — U.S.-, 113 S.Ct. 358, 121 L.Ed.2d 271 (1992); United States v. Patino, 962 F.2d 263, 267 (2d Cir.) (§ 924(c); conspiracy to commit kidnapping), cert. denied — U.S. -, 113 S.Ct. 354, 121 L.Ed.2d 268 (1992); United States v. Greer, 939 F.2d 1076, 1099 (5th Cir.1991) (§ 924(c); conspiracy to deprive citizens of civil rights), aff'd en banc, 968 F.2d 433 (5th Cir.1992), cert. denied, — U.S.-, 113 S.Ct. 1390, 122 L.Ed.2d 764 (1993); see also United States v. Cruz, 805 F.2d 1464, 1474 n. 11 (11th Cir.1986) (“any conspiracy to commit a crime of violence” would, by its nature, create a “substantial risk of violence”) (dicta), cert. denied, 481 U.S. 1006, 107 S.Ct. 1631, 95 L.Ed.2d 204 (1987). But cf. United States v. King, 979 F.2d 801 (10th Cir.1992) (holding that conspiracy to commit armed robbery under New Mexico law was not “violent felony” for purposes of § 924(e)). For these reasons, we conclude that both of defendant’s convictions — conspiracy to commit arson and aiding and abetting the commission thereof — constitute crimes of violence within the meaning of § 3156(a)(4). As defendant has advanced no other chal-Ipnge to the detention order, we affirm the district court’s decision. Affirmed. . Section 3156(a)(4) reads as follows: [T]he term “crime of violence” means— (A) an offense that has as an element of the offense the use, attempted use, or threatened use of physical force against the person or property of another; or (B) any other offense that" }, { "docid": "2406615", "title": "", "text": "(discussing Taylor); Doe, 960 F.2d at 223-224; United States v. Bregnard, 951 F.2d 457, 459 (1st Cir.1991) (Taylor’s categorical approach should be applied to all “candidate” predicate crimes under 18 U.S.C. § 924(e)), cert. denied, - U.S.-, 112 S.Ct. 2939, 119 L.Ed.2d 564 (1992). Since the case at bar has a slightly different focus than the Taylor case, we believe that careful parsing of the Court’s opinion is helpful. Taylor involved the government’s attempt to use an earlier conviction for burglary as a predicate for an enhancement under the Armed Career Criminal Act. The Court identified three reasons why consideration of prior offenses should normally be restricted to the parameters of the statute under which the offender had been convicted. First, the lan guage of 18 U.S.C. § 924(e) “support[ed] the inference that Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.” Taylor, 110 S.Ct. at 2159. Second, the legislative history of the statute indicated that Congress itself had “generally [taken] a categorical approach to predicate offenses.” Id. Third, “the practical difficulties and potential unfairness” of a fact-specific approach seemed “daunting.” Id. Although this appeal involves a sentence enhanced under U.S.S.G. § 4B1.1 rather than U.S.S.G. § 4B1.4, we believe that the two guideline provisions must be construed in pari passu and that, therefore, the Court’s reasoning in Taylor is especially persuasive here. Cf, e.g., United States v. Leavitt, 925 F.2d 516, 517-18 (1st Cir.1991) (drawing an analogy between the Court’s analysis of predicate offenses in Taylor and a proposed method of analysis of predicate offenses under the career offender guideline). We conclude, for essentially the same reasons that led the Taylor Court to circumscribe the definition of “violent felony” under 18 U.S.C. § 924(e), that the Sentencing Commission intended courts to adopt a categorical approach in the definition of “crime of violence” under the career offender guideline. Not only does section 4B1.2 employ exactly the same language that Taylor relied on to justify an inference that" }, { "docid": "23322808", "title": "", "text": "carve out a limited exception to the general rule that a court may only look to the fact of conviction and the. statutory definition of the prior offense. However, the exception is limited to those situations where the language of the statute itself defines crimes of both violence and nonviolence. Thus, in United States v. Selfa, 918 F.2d 749 (9th Cir.), cert. denied, 498 U.S. 986, 111 S.Ct. 521, 112 L.Ed.2d 532 (1990), the district court determined that the defendant’s two prior convictions for bank robbery in violation of 18 U.S.C. § 2113(a) constituted crimes of violence. The first paragraph of section 2113(a) prohibits bank robbery committed “by force and violence, or by intimidation” while the second paragraph criminalizes the act of entering or attempting to enter a bank with intent to commit a felony in it. As we discussed in Selfa, only the first paragraph describes a crime of violence. Id. at 751-52 & n. 2. Nonetheless we upheld the district court’s decision to apply U.S.S.G. § 4B1.1 because the presentence report, “based upon a review of relevant portions of the record underlying the prior convictions, including a review of the charging documents, ... showed that this defendant had been convicted of actual bank robbery pursuant to the first paragraph of 18 U.S.C. § 2113(a).” Id.; see also United States v. Mendez, 992 F.2d 1488, 1490-92 (9th Cir.1993) {Mendez) (holding conspiracy to rob in violation of 18 U.S.C. § 1951 a crime of violence for purposes of 18 U.S.C. § 924(c) even though section 1951 also covers conspiracy to extort among other crimes), cert. denied, — U.S. -, 114 S.Ct. 262, 126 L.Ed.2d 214 (1993). Likewise, in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 2160, 109 L.Ed.2d 607 (1990), the Supreme Court suggested that the categorical approach ... may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of eases where a jury was actually required to find all the elements of generic burglary. For example, in a State whose burglary statutes include entry of an automobile as" }, { "docid": "11578978", "title": "", "text": "(10th Cir.1992). Those seven circuits have concluded that under Taylor the government may use some means, other than a jury instruction, to establish that the prior conviction resulted from a generic burglary. We agree with those circuits. In this case, the district court considered the presentence investigation report (“PSR”) in determining that Adams’ prior convictions under Georgia’s non-generic burglary statute constituted “burglaries” under § 924(e), i.e., generic burglaries. The PSR documented Adams’ prior convictions, pursuant to his guilty pleas, for burglarizing both dwellings and businesses. The information contained in the PSR about Adams’ prior convictions established that they were generic burglaries under Taylor and therefore those burglaries were properly counted for purposes of the § 924(e) enhancement. Nothing in Taylor suggests that a defendant with prior convictions from a state with a non-generic burglary statute may escape the application of § 924(e) simply by pleading guilty and thereby avoiding the creation and use of jury instructions. See, e.g., Harris, 964 F.2d at 1236. Accordingly, the district court did not err in applying the § 924(e) enhancement. III. Finally, Adams contends that the evidence was insufficient to support his conviction for armed bank robbery in violation of 18 U.S.C. §§ 2113(a) & (d), and his conviction for using and carrying a firearm during and in relation to the commission of a erime of violence in violation of 18 U.S.C. § 924(c). Generally, we review whether the evidence is sufficient to support a conviction de novo. United States v. Vazquez, 53 F.3d 1216, 1224 (11th Cir.1995). However, when the defendant fails to renew his Federal Rule of Criminal Procedure 29 motion for a judgment of acquittal at the close of the defense case, as did Adams, we “may reverse only to prevent a manifest miscarriage of justice.” United States v. Hamblin, 911 F.2d 551, 556-57 (11th Cir.1990) (footnote omitted), cert. denied, 500 U.S. 943, 111 S.Ct. 2241, 114 L.Ed.2d 482 (1991). The manifest miscarriage of justice standard “require[s] a finding that the evidence on a key element of the offense is so tenuous that a conviction would be shocking.” United States v." } ]

[ { "docid": "22555299", "title": "", "text": "(1989) (emphasis in original). Thus, an “unintended person . . . [may be] the object of the detention,” so long as the detention is “willful” and not merely the consequence of “an unknowing act.” Id., at 596; cf. County of Sacramento v. Lewis, 523 U. S. 833, 844 (1998) (no seizure where a police officer accidentally struck and killed a motorcycle passenger during a high-speed pursuit). A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned. See California v. Hodari D., 499 U. S. 621, 626, n. 2 (1991); Lewis, supra, at 844, 845, n. 7. When the actions of the police do not show an unambiguous intent to restrain or when an individual’s submission to a show of governmental authority takes the form of passive acquiescence, there needs to be some test for telling when a seizure occurs in response to authority, and when it does not. The test was devised by Justice Stewart in United States v. Mendenhall, 446 U. S. 544 (1980), who wrote that a seizure occurs if “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave,” id., at 554 (principal opinion). Later on, the Court adopted Justice Stewart’s touchstone, see, e. g., Hodari D., supra, at 627; Michigan v. Chesternut, 486 U. S. 567, 573 (1988); INS v. Delgado, 466 U. S. 210, 215 (1984), but added that when a person “has no desire to leave” for reasons unrelated to the police presence, the “coercive effect of the encounter” can be measured better by asking whether “a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter,” Bostick, supra, at 435-436; see also United States v. Drayton, 536 U. S. 194, 202 (2002). The law is settled that in Fourth Amendment terms a traffic stop entails a seizure of the driver “even though" } ]

[ { "docid": "9730306", "title": "", "text": "force and authority was such that a reasonable person would have believed he was not free to leave. See 743 F.2d at 1163-64. In United States v. Johnson, 626 F.2d 753 (9th Cir.1980), federal agents approached the home of a suspect to investigate the theft of a treasury check. See 626 F.2d at 755. The seizure of the suspect occurred when the suspect was inside the house and the officers were outside with guns drawn. See United States v. Johnson, 626 F.2d at 757. The Ninth Circuit held that this arrest was unconstitutional because “it is the location of the arrested person and not the arresting agents that determines whether an arrest occurs within a home.” id. The Ninth Circuit reasoned that to hold otherwise would allow officers to “avoid illegal ‘entry’ into a home simply by remaining outside the doorway and controlling the movements of suspects within through the use of weapons that greatly extend the ‘reach’ of the arresting officers.” Id. The Supreme Court has found “a person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). However, “in situations where the individual could not or would not want to leave, even absent police presence, the appropriate inquiry is whether a reasonable person would feel free to decline the officer’s requests.” Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Regarding circumstances where police officers, without warrant or exigent circumstances and acting under the color of authority, order the occupants of an residence to the door to be seized, the Tenth Circuit has stated: In situations where the individual could not or would not wish to leave, even absent the police presence, “the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382," }, { "docid": "23134046", "title": "", "text": "belief ” that “criminal activity may be afoot.” Id. at 21-22, 30, 88 S.Ct. 1868 (citations omitted). Thus, under Terry, in evaluating whether Campbell’s interaction with Johnson prior to his arrest amounted to an unreasonable seizure, we must first determine at what moment Johnson was seized, and then whether that seizure was justified by reasonable, articulable facts known to Campbell as of that time that indicated that Johnson was engaged in criminal activity. A person is seized for Terry purposes when, “taking into account all of the circumstances surrounding the encounter, the police conduct would ... ‘communicate[ ] to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’ ” Kaupp v. Texas, — U.S.-, 123 S.Ct. 1843, 1845, 155 L.Ed.2d 814 (2003) (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)). A seizure does not occur every time a police officer approaches someone to ask a few questions. Such consensual encounters are important tools of law enforcement and need not be based on any suspicion of wrongdoing. Bostick, 501 U.S. at 434, 111 S.Ct. 2382. However, when the interaction ceases to be consensual, that is, when a reasonable person would no longer “feel free to decline the officers’ requests or otherwise terminate the encounter,” the Fourth Amendment requires the officer to be able to point to specific facts justifying the intrusion. Id. at 436, 111 S.Ct. 2382; see also United States v. Drayton, 536 U.S. 194, 122 S.Ct. 2105, 2112, 153 L.Ed.2d 242 (2002) (finding no seizure where police officers gave defendants “no reason to believe that they were required to answer the officers’ questions”); United States v. Kim, 27 F.3d 947, 951 (3d Cir.1994) (stating that our task in assessing a police encounter is “to decide whether, under the totality of the circumstances ... a reasonable person would [feel] free to decline [an officer’s] requests or otherwise terminate the encounter with him”). The parties disagree about the exact moment when the interaction between Johnson and Campbell became a stop. Johnson argues that, based" }, { "docid": "15534565", "title": "", "text": "crime.... ”). An actual physical touching is not required to constitute a seizure of a person, but in the absence of a physical touching, there must be a submission to an officer’s show of authority. California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). As a corollary, the deprivation or restraint of a person’s liberty may be physical, or it may be that “in view of all of the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (plurality). Cf. Brendlin v. California, 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (“[T]he ‘coercive effect of the encounter’ can be measured ... by asking whether ‘a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.’ ” (quoting Florida v. Bostick, 501 U.S. 429, 435-36, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991))). So, while an officer merely asking a citizen questions may not be a seizure, circumstances indicating a seizure might include “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870 (plurality); see, e.g., Brendlin, 551 U.S. at 255, 127 S.Ct. 2400 (“The law is settled that in Fourth Amendment terms a traffic stop entails a seizure of the driver even though the purpose of the stop is limited and the resulting detention quite brief.” (quotation makes omitted)); Brower, 489 U.S. at 598, 109 S.Ct. 1378 (noting that officers’ use of a roadblock to stop petitioner’s car constituted a seizure of the petitioner and explaining “a roadblock is not just a significant show of authority to induce a voluntary stop, but [it] is designed to produce a stop by physical impact if voluntary compliance does not occur”); Mendenhall, 446 U.S. at 555, 100 S.Ct." }, { "docid": "17106051", "title": "", "text": "stage,” id. (second alteration in original) (quoting United States v. Shareef, 100 F.3d 1491, 1500 (10th Cir.1996)) (internal quotation marks omitted). 1 The district court held that Mr. Jones was not seized “at the time of the initial conversation between [Mr. Jones] and [the Missouri officers because] a reasonable person would not have felt that he or she was unable to terminate the encounter.” R., Vol. I, at 126. Mr. Jones argues that this was error under the factors we set forth in United States v. Rogers, 556 F.3d 1130, 1137-38 (10th Cir.2009), for assessing whether a citizen has been seized for purposes of the Fourth Amendment. It is well-established that “a seizure does not occur simply because a police officer approaches an individual and asks a few questions.” United States v. Lopez, 443 F.3d 1280, 1283 (10th Cir.2006) (quoting Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)) (internal quotation marks omitted). “[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that [ ]he was not free to leave.” United States v. Fox, 600 F.3d 1253, 1258 (10th Cir.2010) (first alteration in original) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)) (internal quotation marks omitted); see, e.g., United States v. Salas-Garcia, 698 F.3d 1242, 1248 (10th Cir.2012) (“A seizure occurs when ‘a reasonable person would not feel free to leave or disregard the contact.’ ” (quoting Lundstrom v. Romero, 616 F.3d 1108, 1119 (10th Cir.2010))). “The critical inquiry is whether the police conduct would have communicated to a reasonable person that [ ]he was not at liberty to ignore the police presence and go about [his] business.” Fox, 600 F.3d at 1258 (quoting Bostick, 501 U.S. at 437, 111 S.Ct. 2382, 115 L.Ed.2d 389) (internal quotation marks omitted). In Rogers, we stated that to determine whether an individual has been seized, we should consider several factors, including: (1) the threatening presence of several officers; (2)" }, { "docid": "23402660", "title": "", "text": "Fourth Amendment. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion); United States v. Notorianni, 729 F.2d 520, 522 (7th Cir.1984). In these situations, a “seizure” of the person occurs only if a reasonable person in similar circumstances would not have felt “free to leave.” Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)); United States v. Boden, 854 F.2d 983, 991 (7th Cir.1988). The second approach articulated by the Supreme Court applies when the police approach an individual in a confined space such as a bus. In such a situation, it no longer “makes sense to inquire whether a reasonable person would feel free to continue walking.” Florida v. Bostick, 501 U.S. 429, 435, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991). Because a person on a bus or in an otherwise confining space “has no desire to leave” and would wish to remain even if police were not present, “the degree to which a reasonable person would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter.” Id. at 435-36, 111 S.Ct. at 2387. When a person’s “freedom of movement [is] restricted by a factor independent of police conduct — i.e., by his being a passenger on a bus ..., the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ request or otherwise terminate the encounter.” Id. at 436, 111 S.Ct. at 2387; Chesternut, 486 U.S. at 576, 108 S.Ct. at 1981 (seizure occurred if “respondent could reasonably have believed that he was not free to disregard the police presence and go about his business”). This second formulation is the appropriate analytical approach in this case. Mr. Jerez’ and Mr. Solis’ movements were confined as a natural result of their voluntary decision to stay in the motel. It was the middle of the night and at least one of" }, { "docid": "6083016", "title": "", "text": "review the factual findings of the district court for clear error and its legal conclusions de novo.” United States v. Simons, 206 F.3d 392, 398 (4th Cir.2000). A. The first issue presented is at what point during the exchange between Brown and the officers was Brown seized, thereby triggering the protections of the Fourth Amendment. “[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free ‘to disregard the police and go about his business,’ the encounter is consensual and no reasonable suspicion is required.” Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (citation omitted) (quoting California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). A number of circumstances inform the inquiry of whether a reasonable person would feel free to disregard the police, including “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.); accord Weaver, 282 F.3d at 312. The district court reached alternative conclusions as to when Brown was seized. First, the court concluded that the initial encounter between Brown and the officers — during which Officer Lewis asked Brown if they could talk to him, informed him that he matched the description of the anonymous tip, and asked if he would consent to a pat-down search — constituted a seizure which triggered Brown’s Fourth Amendment rights. Alternatively, the court concluded that Brown was seized when Officer Lewis decided to arrest him for public intoxication and ordered him to place his hands upon an adjacent car. We examine each of these conclusions in turn. 1. The district court first concluded that the initial encounter between Brown and the officers “amounted to a Terry stop, and not a consensual" }, { "docid": "2538802", "title": "", "text": "factual determinations in ruling on a motion to suppress for clear error and its conclusions of law de novo. United States v. Griffith, 533 F.3d 979, 982 (8th Cir.2008). Although the Fourth Amendment prevents police from seizing a person without a reasonable suspicion of criminal activity, the Amendment is not triggered by a consensual encounter between an officer and a private citizen. Id. at 983. “[M]ere police questioning does not constitute a seizure.” Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). “Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search ... provided they do not induce cooperation by coercive means. If a reasonable person would feel free to terminate the encounter, then he or she has not been seized.” United States v. Angulo-Guerrero, 328 F.3d 449, 451 (8th Cir.2003). “A consensual encounter becomes a seizure implicating the Fourth Amendment when, considering the totality of the circumstances, the questioning is ‘so intimidating, threatening, or coercive that a reasonable person would not have believed himself free to leave.’ ” United States v. Flores-Sandoval, 474 F.3d 1142, 1145 (8th Cir.2007), quoting United States v. Hathcock, 103 F.3d 715, 718 (8th Cir.1997). Two relevant Supreme Court cases bear examination. In United States v. Drayton, the Supreme Court held no seizure occurred when officers boarded a bus during a scheduled stop and began questioning passengers about their travel plans and baggage in a routine drug and weapons interdiction effort. 536 U.S. at 196, 122 S.Ct. 2105. And while the police officers in Drayton were not in uniform or visibly armed, the Court stated that “those factors should have little weight in the analysis.” Id. at 204, 122 S.Ct. 2105. The Court noted that [o]fficers are often required to wear uniforms and in many circumstances this is cause for assurance, not discomfort. Much the same can be said for wearing sidearms. That most law enforcement officers are armed is a fact well known to the public. The presence of a holstered firearm thus is" }, { "docid": "6151932", "title": "", "text": "and citizens” under the Fourth Amendment: “ ‘(1) the consensual encounter, which may be initiated without any objective level of suspicion; (2) the investigative detention, which, if non-consensual, must be supported by a reasonable, articulable suspicion of criminal activity; and (3) the arrest, valid only if supported by probable cause.’ ” United States v. Waldon, 206 F.3d 597, 602 (6th Cir.2000) (quoting United States v. Avery, 137 F.3d 343, 352 (6th Cir.1997)). Here, the interaction between Smith and the Cincinnati police officers began as a consensual encounter but developed into an investigatory detention or Terry stop when Officer Putnick ordered Smith to stop. i. Encounters that do not amount to a seizure In order for a seizure to occur, the encounter must not be consensual and the officers must use physical force or the individual must submit to the officers’ show of authority. Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007); California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). “[A] consensual encounter becomes a seizure when ‘in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’” United States v. Jones, 562 F.3d 768, 772 (6th Cir.2009) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). We have noted that, “[circumstances indicative of a seizure include ‘the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.’ ” Id. (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870). However, absent the intentional application of physical force, even if there is a show of authority and a reasonable person would not feel free to leave, in order for a seizure to occur there must also be submission to the show of authority: “there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far" }, { "docid": "17437293", "title": "", "text": "a mere encounter, no Fourth Amendment claim arises. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Law enforcement officers do not violate the Fourth Amendment “merely by approaching individuals on the street or in public places,” putting questions to those “willing to listen,” and “ask[ing] for identification” even absent any “basis for suspecting a particular individual.” United States v. Drayton, 536 U.S. 194, 200, 201, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). Rather, the protections of the Fourth Amendment are triggered when an encounter loses its consensual nature. In other words, a Fourth Amendment seizure has occurred if an individual is “restrained” by an officer’s use of “physical force or show of authority.” United States v. Smith, 575 F.3d 308, 312 (3d Cir.2009) (quoting Bostick, 501 U.S. at 434, 111 S.Ct. 2382). “To be clear, a seizure ‘requires either physical force ... or, where that is absent, submission to the assertion of authority.’ ” Id. at 313 (quoting California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)). “[T]he test for [the] existence of a ‘show of authority’ is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.” Hodari D., 499 U.S. at 628, 111 S.Ct. 1547; see also Commonwealth v. Wood, 833 A.2d 740, 745 (Pa.Super.2003) (“[I]t is axiomatic that our courts discern whether a person has been seized by determining whether, under all the circumstances surrounding the incident at issue, a reasonable person would believe he was free to leave.”) (quotation marks omitted). In reaching a determination as to whether an encounter is a search or seizure for Fourth Amendment purposes, one is “require[d] to consider[ ] ... all the circumstances surrounding the encounter.” Smith, 575 F.3d at 312 (quoting Bostick, 501 U.S. at 439, 111 S.Ct. 2382). Our case law looks to a variety of factors indicative of a seizure: “the threatening presence of several officers, the display of a weapon by an" }, { "docid": "23221052", "title": "", "text": "have explained that the first category of consensual encounters does not implicate [Fjourth [Ajmendment scrutiny. The second category involves reasonably brief encounters in which a reasonable person would have believed that he or she was not free to leave. In order to justify such a [Fjourth [A]mendment “seizure,” the government must show a reasonable, ar-ticulable suspicion that the person has committed or is about to commit a crime. Finally, when the totality of circumstances indicate that an encounter has become too intrusive to be classified as a brief seizure, the encounter is an arrest and probable cause is required. United States v. Espinosu-Guerra, 805 F.2d 1502, 1506 (11th Cir.1986) (internal citations omitted). The Supreme Court has held: Law enforcement officers do not violate the Fourth Amendment’s prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen. Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage-provided they do not induce cooperation by coercive means. If a reasonable person would feel free to terminate the encounter, then he or she has not been seized. United States v. Drayton, 536 U.S. 194, 200-01, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) (emphasis added and internal citations omitted). Indeed, “[t]he mere fact that a law enforcement officer approaches an individual and so identifies himself, without more, does not result in a seizure.” See United States v. Baker, 290 F.3d 1276, 1278 (11th Cir.2002) (citing Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). Moreover, under controlling case law, the simple act of police questioning does not constitute a seizure. See Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Factors relevant to this inquiry include, among other things: “whether a citizen’s path is blocked or impeded; whether identification is retained; the suspect’s age, education and intelligence; the length of the suspect’s detention and questioning; the number of police officers present; the" }, { "docid": "18037812", "title": "", "text": "whether certain facts establish a seizure or detention in violation of the Fourth Amendment.” United States v. Waldon, 206 F.3d 597, 602 (6th Cir.2000); see also Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) (“[A]s a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal.”). “When a district court has denied the motion to suppress, we must ‘consider the evidence in the light most favorable to the government.’ ” United States v. Pearce, 531 F.3d 374, 379 (6th Cir.2008) (quoting United States v. Carter, 378 F.3d 584, 587 (6th Cir.2004) (en banc)). A. “This Court has explained that there are three types of permissible encounters between the police and citizens: ‘(1) the consensual encounter, which may be initiated without any objective level of suspicion; (2) the investigative detention, which, if nonconsensual, must be supported by a reasonable, articulable suspicion of criminal activity; and (3) the arrest, valid only if supported by probable cause.’” Waldon, 206 F.3d at 602 (quoting United States v. Avery, 137 F.3d 343, 352 (6th Cir.1997)). Although “[l]aw enforcement officers do not violate the Fourth Amendment’s prohibition of unreasonable seizures” by approaching individuals in public places and asking questions, United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002), a consensual encounter becomes a seizure when “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); see also Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (“[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search his or her luggage — as long as the police do not convey a message that compliance with their request is required.” (citations omitted)); United States v. Peters, 194 F.3d 692, 698 (6th Cir.1999) (“Absent coercive or intimidating" }, { "docid": "2337091", "title": "", "text": "otherwise lawful government conduct. ... It is clear, in other words, that a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual’s freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual’s freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied. Brower, 489 U.S. at 596-97, 109 S.Ct. 1378 (internal citations and quotation marks omitted) (emphasis in original); see also County of Sacramento v. Lewis, 523 U.S. 833, 844, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (concluding that no seizure occurred where the police accidentally struck and killed a motorcyclist during a high-speed pursuit). The Court expanded on that rationale in California v. Hodari D., 499 U.S. 621, 624-29, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), where the Court determined that no seizure occurred when a suspect was approached by police, then ran away and was chased. The Court stated that “[t]he word ‘seizure’ readily bears the meaning of laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful.” Id. at 626, 111 S.Ct. 1547. The Court cited with approval commentary that explained that an arrest could be accomplished by “ ‘constructive detention,’ ” which “ ‘is accomplished by merely touching, however slightly, the body of the accused, by the party making the arrest and for that purpose.’ ” Id. at 625, 111 S.Ct. 1547 (citing A. Cornelius, Search and Seizure 163-64 (2d ed. 1930)) (emphasis added). Finally, an important caveat to the free to leave standard, often employed in bus sweep contexts, is that “when a person ‘has no desire to leave’ for reasons unrelated to the police presence, the ‘coercive effect of the encounter’ can be measured better by asking whether ‘a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.’ ” Brendlin v. Cal., 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (quoting Bostick, 501 U.S. at 435-36, 111" }, { "docid": "2337092", "title": "", "text": "readily bears the meaning of laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful.” Id. at 626, 111 S.Ct. 1547. The Court cited with approval commentary that explained that an arrest could be accomplished by “ ‘constructive detention,’ ” which “ ‘is accomplished by merely touching, however slightly, the body of the accused, by the party making the arrest and for that purpose.’ ” Id. at 625, 111 S.Ct. 1547 (citing A. Cornelius, Search and Seizure 163-64 (2d ed. 1930)) (emphasis added). Finally, an important caveat to the free to leave standard, often employed in bus sweep contexts, is that “when a person ‘has no desire to leave’ for reasons unrelated to the police presence, the ‘coercive effect of the encounter’ can be measured better by asking whether ‘a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.’ ” Brendlin v. Cal., 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (quoting Bostick, 501 U.S. at 435-36, 111 S.Ct. 2382). As this discussion makes clear, mere physical contact by an officer, although a significant factor, does not automatically qualify an encounter as a Fourth Amendment seizure. See 4 Wayne R. La-Fave, Search and Seizure: A Treatise on the Fourth Amendment § 9.4(a), p. 427 (4th ed. 2010) (“Even physical contact is acceptable if it is consensual, a normal means of attracting a person’s attention or obviously serves some nonseizure purpose.” (internal quotation marks and citations omitted)); see also id. at n. 85 & accompanying text (commenting that “physically grabbing and moving the suspect,” with a concomitant show of force and authority, may indicate that a seizure occurred). For instance, we have suggested that physical contact does not elevate automatically an encounter to the level of a Fourth Amendment seizure. As we said in Acevedo v. Canterbury, 457 F.3d 721, 725 (7th Cir.2006), “[c]ertain types of non-restraining physical contact, without a concomitant showing of authority, are just too minor to constitute a ‘seizure’ for Fourth Amendment purposes without doing violence to that word.” See" }, { "docid": "8721101", "title": "", "text": "L.Ed.2d 389 (1991). Officers may approach an individual and ask questions randomly or on a hunch. United States v. Manuel, 992 F.2d 272, 274 (10th Cir.1993). If a “reasonable person would feel free ‘to disregard the police and go about his business,’” the encounter is consensual and the Fourth Amendment is not implicated. Bostick, 501 U.S. at 434, 111 S.Ct. at 2386 (quoting California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991)). Whether a police-citizen encounter constitutes a seizure turns on a consideration of “all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Bostick, 501 U.S. at 439, 111 S.Ct. at 2389. There is no doubt that at its inception the encounter between the agents and Mr. Lambert was permissible and in no way implicated the Fourth Amendment. This is true even of the officers’ request to examine Mr. Lambert’s ticket and driver’s license. See Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983) (permissible for agents to request and examine passenger’s ticket and driver’s license); United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877-78, 64 L.Ed.2d 497 (1980) (same). However, what began as a consensual encounter quickly became an investigative detention once the agents received Mr. Lambert’s driver’s license and did not return it to him. In Royer, the.Court rejected the argument that an encounter between DEA agents and an air passenger in the concourse of an airport was consensual. The Court first concluded that “[ajsking for and examining Roy-er’s ticket and his driver’s license were no doubt permissible in themselves.” Royer, 460 U.S. at 501, 103 S.Ct. at 1326. However, “[ejritical to the Plurality’s holding [that the encounter was not consensual] was the officers’ retention of the defendant’s identification and ticket because ‘as a practical matter, [the defendant] could not leave the airport without them.’ ” Bloom, 975 F.2d at 1452 (quoting Royer, 460 U.S. at" }, { "docid": "15534564", "title": "", "text": "officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The restraint by an officer must be “through means intentionally applied” as opposed to an unknowing act. Brower v. Cty. of Inyo, 489 U.S. 593, 597, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). A traditional arrest by an officer is a com monly understood type of seizure. Ashcroft v. al-Kidd, 568 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (“An arrest, of course, qualifies as a ‘seizure’ of a ‘person’ .... ”). But the scope of what may be considered a seizure is broader than this common example and the Supreme Court has supplied some helpful guidance as to the parameters of the term. See generally Terry, 392 U.S. at 16, 88 S.Ct. 1868 (“It is quite plain that the Fourth Amendment governs ‘seizures’ of the person which do not eventuate in a trip to the station house and prosecution for crime.... ”). An actual physical touching is not required to constitute a seizure of a person, but in the absence of a physical touching, there must be a submission to an officer’s show of authority. California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). As a corollary, the deprivation or restraint of a person’s liberty may be physical, or it may be that “in view of all of the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (plurality). Cf. Brendlin v. California, 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (“[T]he ‘coercive effect of the encounter’ can be measured ... by asking whether ‘a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.’ ” (quoting Florida v. Bostick, 501 U.S. 429, 435-36, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991))). So, while an officer merely asking a citizen" }, { "docid": "18037813", "title": "", "text": "v. Avery, 137 F.3d 343, 352 (6th Cir.1997)). Although “[l]aw enforcement officers do not violate the Fourth Amendment’s prohibition of unreasonable seizures” by approaching individuals in public places and asking questions, United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002), a consensual encounter becomes a seizure when “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); see also Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (“[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search his or her luggage — as long as the police do not convey a message that compliance with their request is required.” (citations omitted)); United States v. Peters, 194 F.3d 692, 698 (6th Cir.1999) (“Absent coercive or intimidating behavior which negates the reasonable belief that compliance is not compelled, the [officer’s] request for additional identification and voluntarily given information from the defendant does not constitute a seizure under the Fourth Amendment.”). Factors that, if present, indicate that a seizure occurred include “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. To justify a brief, investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), an officer must point to specific, articulable facts that gave rise to a “reasonable suspicion” that the suspect was engaged in criminal activity. Id. at 21, 88 S.Ct. 1868. “A reasonable suspicion exists when, based on the totality of the circumstances, a police officer has ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” United States" }, { "docid": "23221053", "title": "", "text": "consent to search luggage-provided they do not induce cooperation by coercive means. If a reasonable person would feel free to terminate the encounter, then he or she has not been seized. United States v. Drayton, 536 U.S. 194, 200-01, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002) (emphasis added and internal citations omitted). Indeed, “[t]he mere fact that a law enforcement officer approaches an individual and so identifies himself, without more, does not result in a seizure.” See United States v. Baker, 290 F.3d 1276, 1278 (11th Cir.2002) (citing Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)). Moreover, under controlling case law, the simple act of police questioning does not constitute a seizure. See Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Factors relevant to this inquiry include, among other things: “whether a citizen’s path is blocked or impeded; whether identification is retained; the suspect’s age, education and intelligence; the length of the suspect’s detention and questioning; the number of police officers present; the display of weapons; any physical touching of the suspect, and the language and tone of voice of the police.” United States v. De La Rosa, 922 F.2d 675, 678 (11th Cir.1991). A seizure occurs for Fourth Amendment purposes, however, “ ‘only when, by means of physical force or a show of authority, [a person’s] freedom of movement is restrained.’ ” Craig v. Singletary, 127 F.3d 1030, 1041 (11th Cir. 1997) (quoting United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). Here, we readily conclude the circumstances indicate only a consensual encounter and, accordingly, did not result in a Fourth Amendment violation. Lt. Gonzalez’s uncontroverted testimony showed that he approached Perez’s group and asked if they were okay, given the rough weather and late hour of the encounter. When he inquired whether they had identification, but did not specifically ask to see it, all of the men “automatically produced” Florida driver’s licenses. He spoke with them in a “conversational” tone and, although he was in uniform, his firearm remained holstered." }, { "docid": "16387417", "title": "", "text": "255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (“[T]he Court adopted Justice Stewart’s touchstone [.Mendenhall test], but added that when a person ‘has no desire to leave’ for reasons unrelated to the police presence, the ‘coercive effect of the encounter’ can be measured better by asking whether ‘a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.’ ”) (internal citations omitted). Mendenhall makes clear that “circumstances that might indicate a seizure” may exist “even where the person did not attempt to leave....” Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. Here, while Oliva-Ramos may not have intended or attempted to leave his apartment at 4:30 a.m., the BIA must also inquire into whether he felt free to leave. (Question: “What would have happened if you’d asked the officers to leave?;” Response “I couldn’t tell the officers to leave because it’s the law and I didn’t have anything to tell them.”). The BIA, therefore, erred in rejecting Oliva-Ramos’s claim of a regulatory violation without an adequate inquiry into whether Oliva-Ramos was seized before proceeding to find reasonable suspicion to detain him. We caution, however, that nothing in this opinion is intended to undermine the ability of immigration officers to ask questions of a person to obtain his or her immigration status so long as the inquiry is consistent with the limitations imposed by the Fourth Amendment. See Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Bostick makes clear that “even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, ask to examine the individual’s identification, and request consent to search ... as long as the police do not convey a message that compliance with their requests is required.” Id. (internal citations omitted). “So long as a reasonable person would feel free. ‘to disregard the police and go about his business,’ the encounter is consensual and no reasonable suspicion is required.” Id. at 434, 111 S.Ct. 2382 (internal citation omitted). But the encounter “loses its consensual nature” and a seizure has" }, { "docid": "11809367", "title": "", "text": "that we review de novo. United States v. McKines, 933 F.2d 1412, 1426 (8th Cir.) (en banc), cert. denied, — U.S. -, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991). “Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons.” Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). A seizure does not occur when a police officer approaches an individual and merely questions him or asks to examine his identification — so long as the officer does not convey a message that compliance with his requests is required. Florida v. Bostick, 501 U.S. 429,-, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). If “a reasonable person would feel free ‘to disregard the police and go about his business,’ ” the encounter is consensual and no reasonable suspicion is required. Id. (quoting California v.. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991)). In short, to determine whether a particular encounter constitutes a seizure, we consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that he was not free to decline the officers’ requests or otherwise terminate the encounter. Id. at -, 111 S.Ct. at 2389. Applying this standard, we find that Ward was not seized until Klingbeil began frisking him. Prior to that time, none of the officers conveyed a message to Ward that he was not free to disregard them and go about his business. When Ward initially approached Klingbeil, the officer asked him for identification. When Ward asked if he could enter the station to purchase cigarettes, Klingbeil allowed him to do so, thus indicating to Ward that he was free to continue with his business. As-Ward walked into the station, he asked if he was under arrest, and Klingbeil said no, further indicating to Ward that he had not been detained. Although the officers followed Ward into the station, they in no way interfered with his business of purchasing cigarettes; rather, they continued their investigation by speaking with" }, { "docid": "21425990", "title": "", "text": "United States v. Johnson, 910 F.2d 1506, 1508 (7th Cir.1990) (citations omitted). As this formulation makes clear, not every police encounter implicates the Fourth Amendment. A seizure within the meaning of the Fourth Amendment takes place if, in view of all the circumstances surrounding the incident, a reasonable person would not believe that he was free to leave. See Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); accord United States v. Drayton, 536 U.S. 194, 201, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). In determining whether a reasonable person would believe that he was free to leave or whether, instead, the encounter amounts to a seizure, we consider such factors as: (1) whether the encounter occurred in a public pláce; (2) whether the suspect consented to speak with the officers; (3) whether the officers informed the individual that he was not under arrest- and was free to leave; (4) whether the individuals were moved to another area; (5) whether there was a threatening presence of several officers and a display of weapons or physical force; (6) whether the officers deprived the defendant of documents she needed to continue on her way; and (7) whether the officers’ tone of voice was such that their requests would likely be obeyed. United States v. Johnson, 680 F.3d 966, 975 n. 4 (7th Cir.2012) (quoting United States v. Barker, 467 F.3d 625, 629 (7th Cir.2006)). We also have considered “whether police indicated to the person that she was suspected of a crime or was the specific target of police investigation.” United States v. McCarthur, 6 F.3d 1270, 1276 (7th Cir.1993). The distinction between a consensual encounter, which does not implicate the Fourth Amendment, and an investigative stop, which does implicate the constitutional guarantee because it constitutes a seizure, is often difficult to discern. On one hand, the Supreme Court has recognized. that “mere police questioning does not constitute a seizure.” Bostick, 501 U.S. at 434, 111 S.Ct. 2382, 115 L.Ed.2d 389; see also United States v. Childs, 277 F.3d 947, 950 (7th Cir.2002) (en banc) (noting that police" } ]

[ { "docid": "12039778", "title": "", "text": "a prior Sprengel invention, the fork-type gear. It, however, operated on a different concept — a fact found by the district court and not challenged on appeal — and it was substantially slower and more dangerous than Sprengel ’390. Another indicia of non-obviousness was the skeptical reception which Spren-gel ’390 received. Adams, 383 U.S. at 52, 86 S.Ct. 708. At least one sophisticated purchaser required an undertaking that a proven forklift gear, which previously dominated the market, would be provided should the new Sprengel device “fail.” Significant also is the fact that the Sprengel application was filed in the U.S. patent office in 1964 (a German application was made in 1963), and Leh-mann ’222, filed in 1959, had issued two years earlier. In the time which elapsed between Sprengel and Lehmann, no other person skilled in the art hit upon the Sprengel concept. Another more important indication was the financial and commercial success which the Sprengel boom received. It virtually superseded all prior booms on new shipbuilding. Deere; Adams; Reynolds, 167 F.2d at 83. Although commercial success alone does not resolve the issue of obviousness, it is nevertheless proper to consider it. Compton v. Metal Products, Inc., 453 F. 2d 38 (4 Cir. 1971), cert. denied, 406 U. S. 968, 92 S.Ct. 2414, 32 L.Ed.2d 667 (1972). Finally, although obviousness is determined predominantly by examining what the claims in prior patents taught on paper, it is proper to consider whether the claims made in prior patents were ever operational and to discount the inoperable ones. Adams, 383 U.S. at 51-52, 86 S.Ct. 708; Reynolds, 167 F.2d at 84. Lehmann ’222, the principal basis of defendant’s claim of obviousness, has never been used on any ship. The district court’s specific conclusions that “no one . . . prior to Sprengel came up with a pendulum gear for a boom handling 120 tons or heavier loads, capable of servicing two hatches without rerigging” and that “unhesitatingly . . . even apart from commercial success, Sprengel’s Patent ’390 is valid under . . . Section 103” to me are unassailable under the clearly" } ]

[ { "docid": "23438062", "title": "", "text": "patents in suit were invalid, the “better practice” would have been to resolve the issue of infringement as well); see also Carman Indus., Inc. v. Wahl, 724 F.2d 932, 936 n. 2, 220 USPQ 481, 484 n. 2 (Fed.Cir.1983) (the district court erroneously “combined the analysis of validity with that of infringement”). We have applied this rule in a variety of contexts. For example, in Tenneco Resins, Inc. v. Reeves Bros., Inc., 752 F.2d 630, 224 USPQ 536 (Fed.Cir.1985), we held that the district court did not abuse its discretion in refusing a party’s delayed motion to amend its pleadings to add a defense of invalidity: While we recognize that the issues of infringement, interference, validity, and unenforceability are normally addressed together, they are distinct and separate issues. Thus, Tenneco had the duty to place this distinct and separate issue in its pleading if it wished the court to consider the matter. Given that the infringement and validity issues are normally addressed together, Reeves (and the trial court) could reasonably have assumed that Tenneco’s silence [in its original pleading] expressed its intention not to raise the validity issue. Id. at 635 n. 4, 752 F.2d 630, 224 USPQ at 539 n. 4 (citation and internal quotations omitted). In Fin Control Systems Pty, Ltd. v. OAM, Inc., 265 F.3d 1311, 1321, 60 USPQ2d 1203, 1207 (Fed.Cir.2001), we held that a district court could not sua sponte grant a party summary judgment of patent invalidity in response to a motion for summary judgment that was focused exclusively on the issue of noninfringement: [the] defenses of invalidity and unen-forceability were not the subject of any motion before the district court, nor does the record indicate that these aspects of the case had been fully litigated at the time that the district court entered judgment. Therefore, the district court’s sua sponte grant of summary judgment of invalidity and unenforce-ability was procedurally improper because it did not provide the parties with adequate notice or an opportunity for FCS to present evidence and argument in opposition to the motion. Id. at 1321, 265 F.3d 1311, 60" }, { "docid": "7644713", "title": "", "text": "enabled or whether or not it is the claimed material (as opposed to the unclaimed disclosures) in that patent that are at issue. In re Sasse, 629 F.2d 675, 681, 207 USPQ 107, 111 (C.C.P.A.1980) (“[W]hen the PTO cited a disclosure which expressly anticipated the present invention ... the burden was shifted to the applicant. He had to rebut the presumption of the operability of [the prior art patent] by a preponderance of the evidence.” (citation omitted)). The applicant, however, can then overcome that rejection by proving that the relevant disclosures of the prior art patent are not enabled. Id. Id. at 1355 (footnote omitted). We then indicated that that presumption applies in the district court as well as the PTO, placing the burden on the patentee to show that unclaimed disclosures in a prior art patent are not enabling. Id. That case, however, did not decide whether a prior art printed publication, as distinguished from a patent, is presumptively enabling during patent prosecution. Id. at 1355 n. 22 (“We note that by logical extension, our reasoning here might also apply to prior art printed publications as well, but as Sugimoto is a patent we need not and do not so decide today.”). As the issue regarding non-patent publications is squarely before the court today, we now hold that a prior art printed publication cited by an examiner is presumptively enabling barring any showing to the contrary by a patent applicant or patentee. Relying on the presumption of validity accorded to issued patents, 35 U.S.C. § 282, Antor asserts that a presumption of enablement is applicable only to prior art patents, not to publications, because “the PTO must examine [patents] for enablement before they issue, and 35 U.S.C. § 282 says patents are presumed valid.” Antor Br. 16-17. However, we rejected that argument in Amgen: On appeal, Amgen argues that there should be no presumption of enablement in this case because under § 282 courts only presume the claimed subject matter in a patent is enabled. Thus, Amgen argues, because only the unclaimed disclosures of [the prior art patent] are" }, { "docid": "11197475", "title": "", "text": "JOHN W. PECK, Circuit Judge. Plaintiff-appellant (hereinafter 3-M) brought suit for injunctive relief and damages against the defendants-appellees in the District Court for infringement of its Thomson patent No. 2,610,- 910, relating to a neoprene-phenolic adhesive cement, that was issued on September 16, 1952. The defendants-appellees claimed the patent was invalid and raised several defenses, two of which were tried while the remaining issues were reserved pending the outcome of the present case. The District Court found one of the defenses that was tried dispositive of the case and held the Thomson patent, claims 1-10, invalid and unenforceable. This successful défense presents the only question which we need to decide, that is, whether the patented invention was in public use or on sale in this country more than one year prior to the date of the application for patent in the United States. 35 U.S.C. § 102(b). The original patent application was filed on September 7, 1943. Therefore, the grace period under the above statute being one year before such application, the defendants-appellees had the burden of proving by clear and convincing evidence that the patented invention was in public use or on sale before September 7, 1942. FMC Corp. v. F. E. Myers & Bro. Co., 384 F.2d 4 (6th Cir. 1967), cert. denied, 390 U.S. 988, 88 S.Ct. 1183, 19 L.Ed.2d 1291 (1968); Atlas v. Eastern Air Lines, Inc., 311 F.2d 156 (1st Cir. 1962), cert. denied, 373 U.S. 904, 83 S.Ct. 1290, 10 L.Ed.2d 199 (1963). “The purpose of the 1-year statutory bar is to prevent an inventor from obtaining profits on his invention for a number of years and then at a later date obtaining a patent.” Ushakoff v. United States, 164 Ct.Cl. 455, 327 F.2d 669, 672 (1964). A noted exception to this statutory bar is where the prohibited activities are “substantially for purposes of experiment.” Smith & Griggs Mfg. Co. v. Sprague, 123 U.S. 249, 256, 8 S.Ct. 122, 31 L.Ed. 141 (1887). 3-M had the burden of proving that its activities prior to September 7, 1942, were solely part of an experimental program" }, { "docid": "6327545", "title": "", "text": "in 1980 when the first Form 2 was produced. The patent examiner initially rejected the claims of Glaxo’s Form 2 application and again rejected them on reconsideration. Grounds for the rejection were stated as “anticipated by or, in the alternative, ... obvious over” the ’658 patent, referring specifically to Example 32. In response to this rejection, Glaxo submitted two declarations which purported to show distinctions between the claims in the application and the prior art. After receiving these declarations, the examiner withdrew his rejections, and U.S. Patent No. 4,521,431 was issued, covering Form 2 ranitidine hydrochloride as characterized by its infra-red spectrum (Claim 1) and its x-ray powder diffraction pattern (Claim 2). In addition, the patent covers certain pharmaceutical compositions (Claims 3-16) and treatment methods (Claims 17 and 18) using Form 2. II. NOVOPHARM’S DEFENSES As noted above, Novopharm admits that by filing its ANDA in 1991 it infringed on the ’431 patent, but raises in defense its contentions that the patent is invalid. There is a statutory presumption that an issued patent is valid, 35 U.S.C. § 282, and the party challenging the patent bears the burden of proving invalidity by clear and convincing evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422 (Fed.Cir.1988). Keeping these standards in mind, the court now turns to a diseussion of Novopharm’s challenge to the validity of the ’431 patent. A Inherent Anticipation. Under 35 U.S.C. § 102, an invention may be patented only if it is “novel.” Novelty is judged by examining the “prior art” available to the public at the time the patent application is filed. The prior art includes the teaching from an existing patent such as the ’658 patent in this instance. Graham v. John Deere Co., 383 U.S. 1, 6, 86 S.Ct. 684, 688, 15 L.Ed.2d 545 (1966). If a unit of prior art discloses an invention, then the invention is said to be “anticipated” by the prior art. RCA Corp. v. Applied Digital Data Systems, Inc., 730 F.2d 1440, 1444 (Fed.Cir.1984). The prior art need not expressly disclose the invention. If an inventor seeks to claim an advantage" }, { "docid": "2804502", "title": "", "text": "that case. We recognize that would not have been necessary unless the Court found either the Morgan or the Brainard patent valid and infringed. We next state our conclusions of law on this aspect of the case. A patent, of course, is presumed valid and “[t]he burden of establishing invalidity of a patent shall rest on a party asserting it.” 35 U.S.C. § 282. See also, H. K. Porter Co. v. Goodyear Tire & Rubber Co., 437 F.2d 244 (6 Cir., 1971); Simplicity Mfg. Co. v. Quick Mfg., Inc., 355 F.2d 1012, 1014 (6 Cir., 1966). The Seventh Circuit, however, has said that “[t]he presumption of validity is largely, if not wholly, dissipated when pertinent prior art is shown not to have been considered during the processing of the patent application.” Deep Welding, Inc. v. Sciaky Bros., Inc., 417 F.2d 1227 (7 Cir., 1969). Nevertheless, presumption of validity is not destroyed merely by the failure to cite pertinent prior art. The defendant assumes the burden of proving that the reference upon which he relies anticipates the patent in suit or demonstrates a lack of invention. Preformed Line Products Co. v. Fanner Mfg. Co., supra, at 271. For tests in determining patentability we look first to the statutes. 35 U.S.C. § 101 provides in part: “Whoever invents or discovers any new and useful . . . machine or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” Thus, there must be an invention and the applicant for a patent must have invented it himself. The invention must be useful and novel and nonobvious. To demonstrate a lack of novelty defendants must show that the identical invention was found in the prior art. The prior art is defined in 35 U.S.C. § 102, and (as stated in plaintiff’s pretrial memo at pp. 22-23) includes the following: (1) Patents or printed publications of this or a foreign country which issued or were published either before the applicant for patent made his invention or more than one year prior to the date that" }, { "docid": "9540508", "title": "", "text": "the dimensional limitations. The examiner again rejected the claims, but, after argument on behalf of Gardner, relented. The ’447 patent issued July 1,1969, after nearly six years of prosecution, the focus of which had been the patentability of the invention claimed therein over that disclosed by Vits. Another prior art patent which the trial judge described as important is U.S. patent No. 3,097,971 to Carlisle et al. (the Carlisle patent, or Carlisle). Entitled “Method of and Apparatus for Supporting or Guiding Strip Material,” it is concerned primarily with supporting materials such as steel strips, but expressly extends application of the principles taught therein to “wide elongate material of various kinds.” Fig. 6 of Carlisle shows diagrammatically the use of angled orifices which “enhances the cushion effect of the fluid.” In short, Carlisle shows, as does Vits, the use of partially opposed jets to support a continuous sheet of material. Carlisle was not cited by the examiner during prosecution of Gardner’s initial application and two continuation applications. Gardner requested the examiner to make Carlisle of record in the remarks section of his amendment after final rejection in the first continuation application. It will be recalled, however, that the examiner in his discretion refused to enter that amendment. Thus, at trial, the parties contested whether Carlisle had been considered by the examiner at all, the significance they attached to this fact being, in the words of the trial court, whether the “patent in suit is not entitled to a presumption of validity as to Carlisle.” This last-quoted passage is especially significant in that it contains the trial court’s only mention of the presumption of validity. Despite its awareness of controversy concerning the presumption, the trial court never concluded: (1) whether Carlisle had in fact been considered by the examiner; (2) whether Carlisle shows anything not shown in Vits, which was exhaustively considered by the examiner; (3) who had the burden of proving facts concerning validity or invalidity at trial; and (4) by what standard of proof those facts had to be shown. The final prior art references deemed important by the trial" }, { "docid": "20832388", "title": "", "text": "applications that some of the inhibitors specifically listed in the parent application may operate by means of chelation, nothing new or broadening was added to the claimed invention. The invention was still directed toward the broad discovery of a chemical embossing process which utilized an inhibitor in the printing ink. The claims and the invention were not changed by their reference to the specific chelation mechanism, but remained as they were in the parent application, which had, from the beginning, included chelators as inhibitors. Proof of fraud on the Patent Office must be clear, unequivocal and convincing, and a mere preponderance of evidence which leaves the issue in doubt is a wholly insufficient basis for a finding of fraud. Baldwin-Lima-Hamilton Corp. v. Tatnall Meas. Sys. Co., 169 F.Supp. 1 (E.D.Pa.1958), aff’d. 268 F.2d 395 (3d Cir.), cert. denied, 361 U.S. 894, 80 S.Ct. 190, 4 L.Ed.2d 151 (1959). De fendant has fallen far short of the exacting standard for proof of fraud. We find no merit in its position. Conclusion Defendant here has used a shotgun approach to challenge the validity of the patents in suit. However, in spite of the diverse grounds which Armstrong has advanced in support of its claim that the patents should be held invalid, we find that the defendant has failed to meet its burden on any point. We are mindful of the statutory presumption of validity which attaches to a patent which has been regularly issued. 35 U.S.C. § 282. The party seeking to invalidate it, therefore, has the burden of proof. The evidence adduced at trial shows that the patents in suit disclose a meritorious invention which has materially advanced the art of foam vinyl technology. We have no difficulty in hold ing U. S. Patents 3,293,094 and 3,293,-108 valid. II Infringement The patents in suit disclose a process whereby embossing is achieved in a foamed vinyl product by utilizing an inhibitor which substantially alters the temperature at which the blowing agent decomposes. The specific task before the court is to determine whether plaintiff has met its burden of proof to show that" }, { "docid": "22249788", "title": "", "text": "patent discloses an entirely different device, composed of parts distinct from those of the claimed invention, and operating in a different way to process different material differently. Thus there is presented here no possible question of anticipation by equivalents. See Tate Engineering, Inc. v. United States, 477 F.2d 1336, 1342, 193 Ct.Cl. 1088, 175 USPQ 115, 119 (Ct.Cl.1973). It is clear, moreover, that the device disclosed in the ’770 patent, had it come after issuance of the ’315 patent, could not be found an infringement of the asserted claims. The district court’s analysis treated the claims as mere catalogs of separate parts, in disregard of the part-to-part relationships set forth in the claims and that give the claims their meaning. On the unchallenged evidence of record, we are left with a “definite and firm conviction” that the district court’s finding of anticipation was mistaken and therefore clearly erroneous. That part of its judgment relating to invalidity under 35 U.S.C. § 102(b) must therefore be reversed. II. Obviousness A. Presumption of Validity Guided by remarks found in then applicable court opinions, the district court: (1) viewed the statutory presumption of validity, 35 U.S.C. § 282, as “vanished” or “severely weakened” when Amhoist introduced prior art not cited by the examiner; (2) reduced the required burden of proof, in light of that introduction, to a “mere preponderance” ; and (3) implicitly required Lindemann to prove that the uncited art had been considered by the PTO. (1) Courts are not, of course, at liberty to repeal a statute, or to legislate conditions diminishing its effect. Hence the statutory presumption cannot “vanish” or be “weakened” and the statutorily assigned burden of proof cannot be shifted. Stratoflex Inc. v. Aeroquip Corp., 713 F.2d 1530, 218 USPQ 871 (Fed.Cir.1983). At the same time, much confusion can be avoided by patentees who refrain from efforts to expand the role of the presumption beyond its burden-assigning and decisional approach-governing function. (2) The burden upon the challenger of validity under 35 U.S.C. § 282 is to introduce evidence of facts establishing invalidity (thus overcoming the presumption). American Hoist &" }, { "docid": "22962326", "title": "", "text": "to the asserted claims of the '658 and '400 patents, the burden was on PowerOasis to come forward with evidence to the contrary. The district court therefore correctly placed the burden on PowerOasis to come forward with evidence to prove enti tlement to claim priority to an earlier filing date. II. Written Description Requirement Application of the written description requirement is central to the resolution of this appeal. “It is elementary patent law that a patent application is entitled to the benefit of the filing date of an earlier filed application only if the disclosure of the earlier application provides support for the claims of the later application, as required by 35 U.S.C. § 112.” In re Chu, 66 F.3d 292, 297 (Fed.Cir.1995); see also Augustine Med., Inc. v. Gaymar Indus., Inc., 181 F.3d 1291, 1302-03 (Fed.Cir.1999) (“Different claims of [a CIP] application may therefore receive different effective filing dates.... Subject matter that arises for the first time in [a] CIP application does not receive the benefit of the filing date of the parent application.”). To satisfy the written description requirement the disclosure of the pri- or application must “convey with reasonable clarity to those skilled in the art that, as of the filing date sought, [the inventor] was in possession of the invention.” VasCath Inc. v. Mahurkar, 935 F.2d 1555, 1563-64 (Fed.Cir.1991) (emphasis in original). While a prior application need not contain precisely the same words as are found in the asserted claims, see Eiselstein v. Frank, 52 F.3d 1035, 1038 (Fed.Cir.1995); Purdue Pharma LP v. Faulding Inc., 230 F.3d 1320, 1323 (Fed.Cir.2000) (holding that the disclosure does not have to provide in haec verba support in order to satisfy the written description requirement), the prior application must indicate to a person skilled in the art that the inventor was “in possession” of the invention as later claimed. Ralston, 772 F.2d at 1575; see also Janice M. Mueller, Patent Misuse Through the Capture of Industry Standards, 17 Berkeley Tech. L.J. 623, 638 (2002) (“The [written description] requirement operates as a timing mechanism to ensure fair play in the presentation" }, { "docid": "8696301", "title": "", "text": "Goodyear dropped all its Wingfoot patents or applications because of advice contained in a letter of March 7, 1944 from its patent department in connection with its United States application : “British Patent 329,955 [Killen] has been cited in this case. In our opinion, this reference is a complete anticipation of the present invention. ***** “It is our recommendation that this application be abandoned.” Presumptions of Validity. Plaintiff relies upon various “presumptions of validity” and especially those claimed to arise (1) from the issuance of the patent; (2) from alleged commercial success; (3) from alleged copying; and (4) from prior unsuccessful efforts by defendant and others to develop the alleged invention. 1. Presumption of validity of patent from its issuance. United States Code, Title 35, § 282 provides that: “A patent shall be presumed valid. The burden of establishing invalidity of a patent shall rest on a party asserting it.” This burden has been said to be “a heavy one, as it has been held that ‘every reasonable doubt should be resolved against * * *.'\" the party asserting invalidity. Mumm v. Jacob E. Decker, 1937, 301 U.S. 168, 171, 57 S.Ct. 675, 676, 81 L.Ed. 983. The weight to be given any such presumption is, however, dependent among other things upon the nature of the prosecution in the Patent Office. In this instance, the Examiner, although listing nine American and three foreign references in the Herzegh file wrapper, did not cite two patents more pertinent than any of the cited references; such patents and their importance were known to plaintiff’s patent counsel; and an affidavit of Herzegh intended to establish priority over two of the Patent Office citations, and to prove satisfactory tests, was at best misleading, a. Failure of Patent Office to Cite Best Prior Art. Neither Killen nor the South African Wingfoot patent was referred to of record in the prosecution of the Herzegh patent. In some cases, it may be “as reasonable to conclude that a prior art patent not cited was considered and cast aside because not pertinent, as to conclude that it was inadvertently" }, { "docid": "12320676", "title": "", "text": "consideration of assignor es-toppel. It is at best incongruous to suppose that the equitable doctrine of assignor estoppel can never be applied to an equitable defense. The premise of the doctrine, prevention of unfairness and injustice, is not removed upon the mere denomination of a defense as “equitable”. Diamond Scientific, 848 F.2d at 1224, 6 USPQ2d at 2031 (“Courts that have expressed the estoppel doctrine in terms of unfairness and injustice have reasoned that an assignor should not be permitted to sell something and later to assert that what was sold is worth less, all to the detriment of the assignee.”). If we were to hold otherwise, Diamond Scientific could be avoided by merely couching invalidity defenses in terms of inequitable conduct, precisely as appellants attempt here to do. See Tenneco Resins, Inc. v. Reeves Bros., Inc., 736 F.2d 1508, 1512, 222 USPQ 276, 279 (Fed.Cir.1984) (“While the affirmative defenses of invalidity and unenforceability against an asserted patent are technically separate and distinct, realistically they involve related if not identical evidence [and are] ‘hopelessly intermingled’ with remaining issues.”). Appellants say the spectre of inequitable conduct is raised by its allegations that Neuberg was misnamed as joint inventor, and that Luniewski was misled about the prior work at High Voltage Engineering and the patentability of the inventions. Appellants rely on conjecture. Moreover, the district court correctly determined that those allegations directly contradict statements made by Luniewski in his declarations, see, e.g., Diamond Scientific, 848 F.2d at 1225, 6 USPQ2d at 2031-32, i.e.: (1) Luniewski’s declarations name Neuberg as a joint inventor; (2) Luniewski admitted participation in and knowledge of the prior work at High Voltage Engineering in 1980 yet stated in his declaration that the invention was not “in public use or [on] sale in the United States ... for more than one year prior to this application”; and (3) “Luniewski participated in the patent application process, at least to the extent of reviewing and commenting on the disclosure portions of the application” and the declarations stated under penalty of perjury that the “APPARATUS AND METHOD FOR RADIATION PROCESSING OF MATERIALS" }, { "docid": "22962324", "title": "", "text": "U.S.C. § 120, that the earlier nonprovisional application discloses the invention of the second application in the manner provided by the first paragraph of 35 U.S.C. § 112, is met and whether a substantial portion for all of the earlier nonprovisional application is repeated in the second application in a continuation-in-part. M.P.E.P., Seventh Ed. (July 1998), at § 201.08. When neither the PTO nor the Board has previously considered priority, there is simply no reason to presume that claims in a CIP application are entitled to the effective filing date of an earlier filed application. Since the PTO did not make a determination regarding priority, there is no finding for the district court to defer to. Of course, the fact that the MobileStar Network prior art was never before the PTO does not change the presumption of validity or who has the burden of proof with respect to the prima facie case of invalidity. See Am. Hoist, 725 F.2d at 1360. T-Mobile, the party asserting invalidity, must still show by clear and convincing evidence that the asserted patent is invalid. Once it has established a prima facie case of invalidity and its burden is met, “the party relying on validity is then obligated to come forward with evidence to the contrary.” Ralston, 772 F.2d at 1573. T-Mobile established its prima facie case of invalidity with respect to the asserted claims. It is undisputed that the MobileStar Network was in public use more than one year prior to the June 15, 2000 filing date of the CIP Application. PowerOasis conceded that the MobileStar Network would infringe the claims of the '658 and '400 patents if it were in operation today. “[Tjhat which would literally infringe if later in time anticipates if earlier.” Schering Corp. v. Geneva Pharms., Inc., 339 F.3d 1373, 1379 (Fed.Cir.2003) (internal citation omitted). Accordingly, PowerOasis has conceded that unless the asserted claims are accorded an earlier filing date than the 2000 CIP Application, the MobileStar Network is § 102(b) prior art. Once T-Mobile established by clear and convincing evidence that the MobileS-tar Network was § 102(b) prior art" }, { "docid": "870541", "title": "", "text": "create heat. In holding that patent invalid, we used language that is appropriate here: In spite of these and other differences which may amount to -improvement over valves of the prior art, in sum all that appellant did was to apply a known valve to an analogous use in a known combination or system. This is not invention. Such advance in the art, if advance there was, merely resulted from that type of activity reasonably to be expected of those mechanically skilled in the applicable art. The process 976 patent is invalid by virtue of its obviousness. We make this determination as a matter of law based on evidence which convinces us beyond a reasonable doubt that the statutory presumption of validity of issued patents should fall. II The Apparatus 232 Patent Appellant also claims infringement of the parent of the 976 patent — an apparatus patent which proffers a detailed method of effectuating the 976 process. Because Norpak does not contest the validity of this patent on appeal we move to consideration of the infringement issue. Although IOM admits that Norpak is not presently infringing the apparatus 232 patent, it is their contention that Norpak manufactured infringing devices in 1966 which were in use after the issuance of the patent in June of 1967. IOM has submitted affidavits tending to show the following facts: that Norpak purchased and dismantled their device in early April of 1966; that Norpak purchased at least a dozen each of several component parts of the IOM device later in the same month; and that IOM’s device is useful in normal operation for a two year period. From these facts appellant asks us to infer that their device was copied by Norpak and that it was in use in June of 1967 when the patent was issued. Norpak answers by unrefuted testimony to the effect that the component parts were purchased for experimentation only and were discarded prior to the date that appellant’s patent was granted. There is no testimony offered by IOM that infringing devices were ever seen in use. On these facts the" }, { "docid": "18955415", "title": "", "text": "teachings of the Kirschbraun disclosure, and were not such as would ordinarily produce successful results, because of the failure in such tests to observe certain requirements which were essential to the proper operation of an}- such process. We have examined the testimony of these chemists with some care. Without imputing to them any unfairness or desire to deceive, we are not entirely satisfied that the tests were conducted with the assistance of such knowledge as was available in 1920. However this may be, the burden devolved upon the appellants in attacking the opera-bility of appellee’s disclosure to prove, by a preponderance of evidence, that the disclosure was inoperable. This has been recognized as the rule. The courts have also been of opinion that in such cases it is assumed that the one skilled in the art attempting to operate the mechanism, or practice the process, will make such adjustments and corrections as would occur to those naturally skilled in the art to make the device or process operable. Manhattan Book Casing Co. v. E. C. Fuller Co., 274 Fed. 964; Robbins v. Steinbart, 19 C.C.P.A. (Patents) 1069, 57 F. (2d) 378. We think it may be safely stated that if one skilled in the art is able, by following- the disclosure of an application, and with the aicl of the knowledge of the art at that time, can and does successfully practice a process or prepare a device described in said disclosure, then the disclosure must be held to be operable, even though others have likewise attempted to successfully practice said disclosure and have failed. The human element, namely, that of the skill of the worker, must always be considered in such cases. We do not mean by this observation to hold that one may go outside of the disclosure and the known art of the time, and bring to his aid other knowledge acquired from other sources and thus make a disclosure operable, but we do mean that if one fairly practicing the disclosure, with the aid of the. known art, is successful, that is sufficient. There being no" }, { "docid": "22962325", "title": "", "text": "the asserted patent is invalid. Once it has established a prima facie case of invalidity and its burden is met, “the party relying on validity is then obligated to come forward with evidence to the contrary.” Ralston, 772 F.2d at 1573. T-Mobile established its prima facie case of invalidity with respect to the asserted claims. It is undisputed that the MobileStar Network was in public use more than one year prior to the June 15, 2000 filing date of the CIP Application. PowerOasis conceded that the MobileStar Network would infringe the claims of the '658 and '400 patents if it were in operation today. “[Tjhat which would literally infringe if later in time anticipates if earlier.” Schering Corp. v. Geneva Pharms., Inc., 339 F.3d 1373, 1379 (Fed.Cir.2003) (internal citation omitted). Accordingly, PowerOasis has conceded that unless the asserted claims are accorded an earlier filing date than the 2000 CIP Application, the MobileStar Network is § 102(b) prior art. Once T-Mobile established by clear and convincing evidence that the MobileS-tar Network was § 102(b) prior art to the asserted claims of the '658 and '400 patents, the burden was on PowerOasis to come forward with evidence to the contrary. The district court therefore correctly placed the burden on PowerOasis to come forward with evidence to prove enti tlement to claim priority to an earlier filing date. II. Written Description Requirement Application of the written description requirement is central to the resolution of this appeal. “It is elementary patent law that a patent application is entitled to the benefit of the filing date of an earlier filed application only if the disclosure of the earlier application provides support for the claims of the later application, as required by 35 U.S.C. § 112.” In re Chu, 66 F.3d 292, 297 (Fed.Cir.1995); see also Augustine Med., Inc. v. Gaymar Indus., Inc., 181 F.3d 1291, 1302-03 (Fed.Cir.1999) (“Different claims of [a CIP] application may therefore receive different effective filing dates.... Subject matter that arises for the first time in [a] CIP application does not receive the benefit of the filing date of the parent application.”)." }, { "docid": "2531534", "title": "", "text": "Claim 1 of the patent was invalid under 35 U.S.C. § 102(b) (1970), that Claims 2 and 3 were invalid under 35 U.S.C. § 102(a) and (b) (1970) and also under 35 U.S.C. § 103, and that Claims 4 and 5 were not infringed. Accordingly, the district court denied Paeco’s request for injunctive relief. Although holding that AMI had failed to prove by clear and convincing evidence that Paeco had procured the patent through fraud on the patent office, the district court nevertheless concluded that the case was “exceptional” under 35 U.S.C. § 285 (1970) entitling AMI to reasonable attorney fees. Both Paeco and AMI have filed appeals to this court. For reasons discussed hereafter, we have concluded that our sole source of jurisdiction is 28 U.S.C. § 1292(a)(1) and that our review is therefore directed to those issues bearing on the district court’s denial of injunctive relief. I. CLAIM 1 Claim 1 of the patent reads as follows: 1. Replica wooden beams fabricated entirely of molded foam plastic material having the characteristics of rigid urethane foam comprising portions thereof molded to present the appearance of fasteners utilized to secure the replica beams with a surface or with similar replica beams. The district court held Claim 1 invalid under § 102(b) and Paeco appeals from that holding. Section 102(b) establishes “novelty” as a prerequisite to a patent. If the invention described in a patent claim was in public use or on sale or described in a printed publication more than one year prior to the date of application for the patent, the invention is said to lack “novelty” and the claim is invalid. The learned district judge accurately stated the law concerning invalidity under § 102(b): Every patent comes into court clothed with a presumption of validity, 35 U.S.C. § 282 (1970); and the party challenging the validity of a patent bears a heavy burden of demonstrating by clear and convincing proof a prior use or sale of the patented invention or the patent’s deficiency in some other respect. See Trio Process Corp. v. L. Goldstein’s Sons, Inc., 461 F.2d" }, { "docid": "23438061", "title": "", "text": "is not infringed does not render the counterclaim for patent invalidity moot. Id. at 102-03, 113 S.Ct. 1967. The Court determined that “[a] party seeking a de claratory judgment of invalidity presents a claim independent of the patentee’s charge of infringement.” Id. at 96, 113 S.Ct. 1967 (emphasis added). The Court concluded that “of the two questions, validity has the greater public importance.” Id. at 100, 113 S.Ct. 1967 (citation omitted); see also Altvater v. Freeman, 319 U.S. 359, 365-366, 63 S.Ct. 1115, 87 L.Ed. 1450 (1943) (holding that a finding of noninfringement does not render the distinct claim of patent invalidity moot). Similarly, this court has long recognized that patent infringement and invalidity are separate and distinct issues. “Though an invalid claim cannot give rise to liability for infringement, whether it is infringed is an entirely separate question capable of determination without regard to its validity.” Medtronic, Inc. v. Cardiac Pacemakers, Inc., 721 F.2d 1563, 1583, 220 USPQ 97, 111 (Fed.Cir.1983) (noting that although the district court was correct in its determination that the patents in suit were invalid, the “better practice” would have been to resolve the issue of infringement as well); see also Carman Indus., Inc. v. Wahl, 724 F.2d 932, 936 n. 2, 220 USPQ 481, 484 n. 2 (Fed.Cir.1983) (the district court erroneously “combined the analysis of validity with that of infringement”). We have applied this rule in a variety of contexts. For example, in Tenneco Resins, Inc. v. Reeves Bros., Inc., 752 F.2d 630, 224 USPQ 536 (Fed.Cir.1985), we held that the district court did not abuse its discretion in refusing a party’s delayed motion to amend its pleadings to add a defense of invalidity: While we recognize that the issues of infringement, interference, validity, and unenforceability are normally addressed together, they are distinct and separate issues. Thus, Tenneco had the duty to place this distinct and separate issue in its pleading if it wished the court to consider the matter. Given that the infringement and validity issues are normally addressed together, Reeves (and the trial court) could reasonably have assumed that Tenneco’s silence" }, { "docid": "23555902", "title": "", "text": "USPQ2d 1697, 1699 (Fed. Cir.1999). However, to support its preliminary injunction, Purdue bore the burden of establishing a likelihood of success on these issues and thus must have shown that Roxane likely will not prove that the patent is invalid. Canon Computer Sys., Inc., 134 F.3d at 1088, 45 USPQ2d at 1358. Every patent is presumed valid, so if Roxane fails to identify any persuasive evidence of invalidity, the very existence of the patent satisfies Purdue’s burden on validity. Id. Roxane contends that the '331 parent is prior art that anticipates and invalidates the patents-in-suit because the inventive entity of the '331 parent is different from its progeny. Purdue argues and the district court held that the '331 parent is not relevant prior art because the inventions disclosed in the patents-in-suit were conceived and reduced to practice before the filing date of the '331 parent application. Conception and reduction to practice are questions of law, based on subsidiary findings of fact. Hybritech Inc. v. Monoclonal Antibodies, Inc., 802 F.2d 1367, 1376, 231 USPQ 81, 87 (Fed.Cir. 1986). To antedate (or establish priority) of an invention, a party must show either an earlier reduction to practice, or an earlier conception followed by a diligent reduction to practice. See Price v. Symsek, 988 F.2d 1187, 1190, 26 USPQ2d 1031, 1037-38 (Fed.Cir.1993). Conception requires proof that the inventor formed in his mind “a definite and permanent idea of the complete and operative invention, as it is hereafter to be applied in practice,” and that the idea be “so clearly defined in the inventor’s mind that only ordinary skill would be necessary to reduce the invention to practice, without extensive research or experimentation.” Burroughs Wellcome Co. v. Barr Labs., Inc., 40 F.3d 1223, 1228, 32 USPQ2d 1915, 1920 (Fed.Cir.1994) (citations omitted). Where a party seeks to show conception though oral testimony of an inventor, it must produce independent evidence corroborating that testimony. Price, 988 F.2d at 1195, 26 USPQ2d at 1036-37. Such evidence is to be evaluated under a rule of reason. Id. To prove actual reduction to practice, “an inventor must establish that" }, { "docid": "3181852", "title": "", "text": "least 450° F., and cooled below its normal freezing point while still remaining tacky, could be pressed against the fabric (laminated) without damaging it. While the original apparatus was satisfactory for laminating polyurethane to carpets, it tended to wrinkle when applied to fabrics suitable for use in garments. Accordingly, Dickey devised an arrangement of rollers that would tension the foam before lamination, ending the problem of wrinkles. In addition, the second patent indicated that the materiál to which the foam was to be bonded could be pre-heated, thus increasing its adhesion to the foam. He applied for a patent in September, 1957, and after four rejections succeeded in having an amended application accepted on January 11, 1962. In January, 1963 Dickey applied for a Reissue of the second patent, primarily directed at correcting inartful language in the original. This was granted on December 10, 1963. The tests for obviousness were described in Graham v. John Deere Co., 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966): “Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined.” 383 U.S. at 17, 86 S.Ct. at 694. The District Court relied both on preexisting patents and expert testimony to conclude that flame lamination of polyurethane foam was amply foreshadowed in the prior art. Relying heavily on expert testimony introduced by both Reeves and U. S. Laminating, Judge Bartels determined that it was well known to those skilled in the art that thermoplastic materials would assume a supercooled state (remain fluid below their normal freezing point) if cooled rapidly. Furthermore, while plaintiff’s expert preferred to describe polyurethane foam as “thermosetting” (taking a different chemical form after fusing), testimony established that it was thought in 1956 to have thermoplastic properties, and was indeed described as such in the Dickey patent application. Thus a person skilled in the art would have expected" }, { "docid": "17677100", "title": "", "text": "rejection and thereafter canceled when rejected “as unpatentable over McIntyre in view of Palmer and when further considering Lebelle.” Of particular interest and pertinence is application claim 14 because, in addition to reciting “vertically adjustable wheels,” it provided for an apparatus “having lower longitudinal frame members adapted to slide on the surface onto which the paving material is deposited.” Thus it is shown that, of the original eighteen claims, only six, including claims 1, 3 and 4 here claimed and found to be infringed, were ultimately allowed. Each of the six claims provides for the operation, on wheels, of the framework supporting the curb-laying machine. The two original application claims which made provision for the operation of the machine on skids or slides were canceled when rejected. It is clear that the applicant accepted the examiner’s view that the skid-supported rear end of the machine would not work and that efforts to claim a skid-supported curber were abandoned. VALIDITY Claims 1, 3 and 4 of the patent in suit are combination claims in which all of the elements of the combination are old. We do not understand the plaintiff to contend to the contrary. The District Court held: “This patent in suit not only claims but actually discloses a new combination of elements functioning together in a new way and which unquestionably produces new and outstanding results; from which I am of the opinion and so find that the Canfield invention taken as a whole would not have been obvious to a person having ordinary skill in the art of paving apparatus.” 187 F.Supp. 819, 822. 35 U.S.C.A. § 282 provides in part as follows: “A patent shall be presumed valid. The burden of establishing invalidity of a patent shall rest on a party asserting it. * * * ” Mere argument will not suffice to overcome this statutory presumption and to sustain the burden imposed upon the defendants who assert invalidity. The defendants’ case on validity consists largely of the introduction of a number of old paper patents followed by the argument that the disclosures in such patents could" } ]

[ { "docid": "11999148", "title": "", "text": "F.2d 885; Cf. Commissioner of Internal Revenue v. Rosenheim, 3 Cir., 132 F.2d 677, 680. Here, the statute does not require that actual notice be given a transferee, but it does require that the notice be sent “by registered mail” to the transferee at its “last known address”. Title 26 U.S. C.A. Sections 272(a) (1) and 311(a) (1), (e); see also, Commissioner of Internal Revenue v. Rosenheim, 3 Cir., 132 F.2d 677, 680; Botany Worsted Mills v. U. S., 278 U.S. 282, 49 S.Ct. 129, 73 L.Ed. 379. In this case petitioner stands charged with fraud, and has been penalized in back taxes and penalties by a 'summary assessment in the aggregate of over a third of a million dollars without ever being heard. Its petition arrived and was filed with the Tax Court on the ninety-first day after the mailing of the statutory notice by. the Commissioner, and only a few hours after the time for answer is supposed to have expired. ****Moreover, the notice of the Commissioner was not mailed to the “last known address” of the petitioner corporation, as required by the statute, but was improperly addressed and mailed to petitioner’s president at his private residence, where the corporation had no address and where no corporate business had ever been transacted. Under the circumstances, we are constrained to believe that service of the statutory notice on petitioner’s president under a fictitious name was not equivalent to service on the corporation, and that the notice was therefore wholly ineffective for non-compliance with the statute. See Welch v. Schweitzer, 9 Cir., 106 F.2d 885, 888; Carbone v. Commissioner, 8 T. C. 207. However this may be, we hold that the agents of the Commissioner were negligent in failing to ascertain by a reasonable effort the correct and “last known address” of petitioner, and that their improper addressing of the deficiency notice caused a delay in its delivery of at least one day which should be credited to petitioner so as to give the Tax Court jurisdiction over its petition. See Dilks v. Blair, 7 Cir., 23 F.2d 831; Commissioner" } ]

[ { "docid": "8780517", "title": "", "text": "notices of deficiency which, under section 6213(a) constitute “tickets to the Tax Court.” Section 6212(b)(1) provides that such a notice is valid if mailed to the taxpayer’s “last known address.” A notice of deficiency is valid even though there are errors in the mailing address, if there is a timely filing of a petition with this Court and if the taxpayer suffered no damage as a result of the errors. Brzezinski v. Commissioner, 23 T.C. 192 (1954), and cases cited therein; see Clodfelter v. Commissioner, 527 F.2d 754 (9th Cir. 1975), cert. denied 425 U.S. 979 (1976), affg. 57 T.C. 102 (1971); Berger v. Commissioner, 404 F.2d 668 (3rd Cir. 1968), cert. denied 395 U.S. 905 (1969), affg. 48 T.C. 848 (1967); Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367 (1974), affd. 538 F.2d 334 (9th Cir. 1976); Degill Corp. v. Commissioner, 62 T.C. 292 (1974); Zaun v. Commissioner, 62 T.C. 278 (1974); Lifter v. Commissioner, 59 T.C. 818 (1973). The rationale of this rule is twofold. One element of the rationale is that the purpose of section 6212 — the giving of notice to a taxpayer that respondent proposes a deficiency — is acheived if the taxpayer receives actual notice. See, e.g., Berger v. Commissioner, supra; Alta Sierra Vista, Inc. v. Commissioner, supra; Zaun v. Commissioner, supra; Lifter v. Commissioner, supra. The other element of the rationale is that the taxpayer is not harmed if the improperly addressed notice of deficiency is actually received in time to file a timely petition with this Court. See, e.g., Clodfelter v. Commissioner, supra; Degill Corp. v. Commissioner, supra; Brzezinski v. Commissioner, supra; cf. Shelton v. Commissioner, 63 T.C. 193 (1974). Both elements of the rationale apply to the facts of the instant case. Petitioner received actual notice of the deficiency, and thus was alerted to the respondent’s assertion of a deficiency. Petitioner filed her petition within 90 days after the notice of deficiency was mailed. We conclude that the notice of deficiency in the instant case is valid, notwithstanding that respondent did not mail it to the address at which petitioner" }, { "docid": "426063", "title": "", "text": "Cir. 1975), affg. 57 T.C. 102 (1971); Goodman v. Commissioner, 71 T.C. 974, 977-978 (1979); Brzezinski v. Commissioner, supra at 195. See also Commissioner v. Stewart, 186 F.2d 239 (6th Cir. 1951), revg. a Memorandum Opinion of this Court. The deficiency notices in those cases were held to he valid because they served the two functions of section 6212: (1) They notified the taxpayer that a deficiency had been determined against him, and (2) they gave the taxpayer the opportunity to petition this Court for redetermination of the proposed deficiency. Compare Mulvania v.. Commissioner, supra. Although the notice of deficiency in the present case was not mailed to petitioners at their \"last known address,” it was sent to them by certified mail as authorized in section 6212(a). More importantly, petitioners actually received the notice well within 90 days of its mailing and timely filed a petition in this • Court. Therefore, pursuant to the above cited cases, we hold that the notice of deficiency complied with section 6212(a). The next question is whether a notice of deficiency that satisfies section 6212(a), that is in fact received by the taxpayer, and that permits the taxpayer to file a timely petition in this Court is valid so as to toll the running of the limitations period under section 6503(a)(1). B. Statute op Limitations Petitioners acknowledge the line of cases holding that a notice not mailed to the taxpayer’s last known address is valid so long as the taxpayer receives it in time to petition this Court and files a timely petition. Petitioners do not appear to contest the general proposition that such a notice may be valid for purposes of section 6212(a). Petitioners’ principal argument is that the notice here did not become valid for any purpose until it actually was received by them, by which time the statute of limitations under section 6501(a) had expired. Since the notice was not mailed until the last day of the period of limitations under section 6501(a), we must decide whether the notice was valid on the date it was mailed so as to toll" }, { "docid": "426089", "title": "", "text": "Pittsburgh Realty Investment Trust v. Commissioner, 67 T.C. 260, 282-285 (1976); Degill Corp. v. Commissioner, 62 T.C. 292, 295-296 (1974); Zaun v. Commissioner, 62 T.C. 278, 280 (1974); Lifter v. Commissioner, 59 T.C. 818, 822-825 (1973); Robinson v. Commissioner, 57 T.C. 735, 737 (1972). Compare Clodfelter v. Commissioner, 57 T.C. 102 (1971), affd. 527 F.2d 754 (9th Cir. 1975). Sec. 6213(a) correspondingly provides that the \"mailing” of a notice of deficiency under sec. 6212 starts the period for filing a petition with this Court. In Estate of McKaig v. Commissioner, 51 T.C. 331 (1968), the taxpayer’s attorney knew of the notice of deficiency almost a month before he received it, because he then wrote a letter to the Commissioner requesting a copy of it. However, the petition alleged and we found that the taxpayer did not learn about the notice until her attorney received a copy of it. Thus, we held that the 90-day period for petitioning this Court began on the date that the Commissioner furnished the taxpayer’s attorney with a copy of the notice of deficiency. In McPartlin v. Commissioner, 653 F.2d 1185 (7th Cir. 1981), revg. an unpublished order of this Court, since the taxpayers filed their petition within 90 days of their receipt of both the \"Notice of Federal Tax Lien” and the notice of deficiency, the Seventh Circuit did not decide when the 90-day period for petitioning this Court began. 653 F.2d at 1192. Presumably, such a notice also would be ineffective to toll the period of limitations on the date it was mailed pursuant to section 6503(aXl). See McPartlin v. Commissioner, supra at 1192. Shields, J., concurring: I concur in the result but feel that we should not take up the question of the statute of limitations at this point. The matter before us for decision is a motion by petitioners to dismiss for lack of jurisdiction. Whether or not the proposed assessment is time barred under section 6501(a) has no bearing on our jurisdiction. If it did, we would never be able to consider the many proposed assessments set forth in notices of" }, { "docid": "426076", "title": "", "text": "the notice was determinative was based upon our conclusion that the first mailing was ineffective to toll the period of limitations pursuant to section 6503(a)(1). We reasoned that the first mailing was a \"nullity” because the deficiency notice was erroneously addressed and was returned to the Commissioner undelivered. The present case is clearly distinguishable because the only mailing here resulted in a delivery to petitioners and a timely filing of their petition. Our decision is not altered by certain cases stating that, where \"notice of a deficiency is not sent to the taxpayer’s 'last known address,’ subsequent actual notice of the determined deficiency will commence the running of the 90 day period” for petitioning the Tax Court. McPartlin v. Commissioner, supra at 1192. Accord Johnson v. Commissioner, 611 F.2d 1015 (5th Cir. 1980), revg. a Memorandum Opinion of this Court; Estate of McKaig v. Commissioner, 51 T.C. 331 (1968). In each of those cases, as in the present case, notices of deficiency were mailed to the taxpayers but not to their last known addresses. Unlike the present case, the taxpayers in those cases did not receive the notices sent to them through the mail. The taxpayers in McPartlin had no notice of the deficiency until about 1 year after the original notice of deficiency was sent to them. At that time, they received a \"Notice of Federal Tax Lien.” Their attorney later received a copy of the original notice of deficiency when it was hand delivered to him. In McKaig, the taxpayer first learned of the deficiency from her attorney who told her about it on receiving a copy of the notice of deficiency 140 days after it was originally mailed to her. The taxpayers in Johnson never received the notice mailed to them; they first learned of the determined deficiency more than 90 days after the notice had been mailed when they received a \"statement of tax due.” In all three cases, the taxpayer petitioned this Court within 90 days of receiving notification of the deficiency by methods other than in a notice of deficiency mailed to them. The" }, { "docid": "15594950", "title": "", "text": "Greve, 37 B.T.A. 450 (1938), Henry Wilson, 16 B.T.A. 1280 (1929), unless the taxpayer receives actual notice that a notice of deficiency has been issued and files a timely petition, Richard A. Zaun, 62 T.C. 278 (1974), Daniel Lifter, 59 T.C. 818 (1973). Every court has judicial power to hear and determine, and inquire into, its own jurisdiction and to decide all questions, the decision of which is necessary to determine the question of jurisdiction. Stoll v. Gottlieb, 305 U.S. 165 (1938); 21 C.J.S. sec. 113. See also Nash Miami Motors, Inc. v. Commissioner, 358 F. 2d 636, 637 (C.A. 5, 1966). When at any time and in any manner it is represented to the Court that it does not have jurisdiction, the Court should examine the grounds of jurisdiction before proceeding further, the question of jurisdiction being always open for determination. Wheeler’s Peachtree Pharmacy, Inc., 35 T.C. 177 (1960). A notice of deficiency must be issued prior to the filing of a petition in the Tax Court. The validity of a notice of deficiency upon which a petition is based is a jurisdictional question that, when brought to the Court’s attention, should be answered before the Court considers whether the petition was timely filed. Furthermore, it is sometimes necessary to first determine questions with respect to the mailing of the notice of deficiency before it is possible to determine whether a petition is timely filed. See Estate of Francis P. McKaig, Jr., supra; Boccuto v. Commissioner, 277 F. 2d 549 (C.A. 3, 1960). We conclude that when a notice of deficiency is not mailed to taxpayer at his last known address and as a result thereof the petition filed by the taxpayer in this Court is not filed within the time provided by law, this Court has the jurisdiction and authority to, and should, grant a motion properly filed by petitioner to dismiss the proceeding for lack of jurisdiction because a valid statutory notice of deficiency was not sent to petitioner. Respondent’s motion to dismiss is denied. Petitioners’ motion to dismiss is granted. An appropriate order will be entered." }, { "docid": "17031670", "title": "", "text": "Service Center in Andover, Mass. The address shown on this return was 11 Winding Lane, Enfield, Conn, (the Enfield address). The North-Atlantic Service Center processes all returns for the districts comprising the North-Atlantic Eegion of the Internal Eev-enue Service. The Hartford district is within that region. On May 5,1970, the appellate division branch of the North-Atlantic Eegion located in New Haven, Conn., mailed a deficiency notice to petitioners’ Somerset Street address in Withersfield. The deficiency notice related to petitioners’ 1968 taxable year. This notice was received by petitioners no later than June 8,1970. The 90-day period running from the mailing of the deficiency notice expired on August 3,1970. The petitioners mailed their petition to the Tax Court with respect to this deficiency notice on September 24, 1970, and such petition was filed at the Tax Court on September 28, 1.970. OPINION The question presented is whether an income tax return for a subsequent taxable year filed with an IES regional service center prior to the issuance of a statutory deficiency notice is sufficient to notify respondent of a change in address. Respondent here contends that his deficiency notice regarding 1968 was properly mailed to petitioners’ “last known address,” i.e., the Withersfield address, and that this Court lacks jurisdiction in the case because petitioners’ petition was not filed in this Court within the prescribed period. Petitioners, contrariwise, assert that their “last known address” at the time of the mailing of the deficiency notice was the Enfield address shown on their 1969 return which was filed with the North-Atlantic Service Center no less than 20 days before the statutory notice was mailed. If petitioners’ contention is held to be correct, the case would have a different frame of reference. Compare Frances Lois Stewart, 55 T.C. 238, 241 (1970), on appeal (C.A. 9, Jan. 29, 1971); Estate of Francis P. McKaig, Jr., 51 T.C. 331, 335 (1968). We find that respondent’s notice of deficiency was indeed mailed to petitioners’ “last known address” as of the date of the mailing and that petitioners’ filing of their 1969 return was not the kind of notice" }, { "docid": "426075", "title": "", "text": "incorrect” mailing address. The difference between such errors is merely one of degree and would not be determinative under the facts of the present case. Petitioners cite Reddock v. Commissioner, 72 T.C. 21 (1979), for the proposition that a notice of deficiency not mailed to the last known address is effective only on receipt for purposes of section 6503(a)(1). In Reddock, the notice was mailed 3 days before the end of the period of limitations to an address that was not the taxpayers’ last known address. The Postal Service returned that notice to the Commissioner undelivered. Eleven days after the period of limitations had run, the Commissioner remailed the same notice to the taxpayers by ordinary mail at their last known address. The taxpayers received the notice and filed a petition in this Court. In their petition, the taxpayers challenged the timeliness of the notice. We held that the assessment was barred since the notice was not remailed to the taxpayers until after the period of limitations had expired. Our decision that the remailing of the notice was determinative was based upon our conclusion that the first mailing was ineffective to toll the period of limitations pursuant to section 6503(a)(1). We reasoned that the first mailing was a \"nullity” because the deficiency notice was erroneously addressed and was returned to the Commissioner undelivered. The present case is clearly distinguishable because the only mailing here resulted in a delivery to petitioners and a timely filing of their petition. Our decision is not altered by certain cases stating that, where \"notice of a deficiency is not sent to the taxpayer’s 'last known address,’ subsequent actual notice of the determined deficiency will commence the running of the 90 day period” for petitioning the Tax Court. McPartlin v. Commissioner, supra at 1192. Accord Johnson v. Commissioner, 611 F.2d 1015 (5th Cir. 1980), revg. a Memorandum Opinion of this Court; Estate of McKaig v. Commissioner, 51 T.C. 331 (1968). In each of those cases, as in the present case, notices of deficiency were mailed to the taxpayers but not to their last known addresses. Unlike" }, { "docid": "18684217", "title": "", "text": "The petition must be filed within 90 days after the notice of deficiency is issued. Sec. 6213(a). If respondent issued a valid notice of deficiency, the petition must be dismissed for lack of jurisdiction as untimely. In that event, petitioners would not be entitled to challenge the merits of the deficiency in this Court, but would be required to pay the full assessment and file a claim for refund prior to challenging the merits of the assessment in court through a suit for refund. Sec. 7422; Flora v. United States, 362 U.S. 145 (1960). However, if jurisdiction is lacking because of respondent’s failure to issue a valid notice of deficiency, we will dismiss the case on that ground, rather than for lack of a timely filed petition. Keeton v. Commissioner, supra at 379. A valid notice of deficiency has been issued if it is mailed to the taxpayer’s last known address by certified or registered mail. Sec. 6212(a) and (b). Respondent has made a mailing to petitioners on April 15, 1985, to the same address in North Brunswick, New Jersey, which they have indicated to be their present address as well as their address on April 15, 1985. Accordingly, we need not consider further petitioners’ argument as to respondent’s failure to make a mailing to their last known address. It is also clear that where a notice of deficiency is sent to taxpayer’s last known address, it is valid whether or not petitioners received it. Tadros v. Commissioner, 763 F.2d 89 (2d Cir. 1985); Cool Fuel, Inc. v. Connett, 685 F.2d 309, 312 (9th Cir. 1982); Estate of McKaig v. Commissioner, 51 T.C. 331, 335 (1968). The parties have been unable to provide the Court with citation to any case in which Form 3877, standing alone and without other corroboration of the existence of a notice of deficiency, has been held sufficient to prove both the existence of the notice as well as the proof of its mailing. We thus consider this a case of first impression, but limit our holding to the unusual facts present herein. We first consider" }, { "docid": "17031671", "title": "", "text": "respondent of a change in address. Respondent here contends that his deficiency notice regarding 1968 was properly mailed to petitioners’ “last known address,” i.e., the Withersfield address, and that this Court lacks jurisdiction in the case because petitioners’ petition was not filed in this Court within the prescribed period. Petitioners, contrariwise, assert that their “last known address” at the time of the mailing of the deficiency notice was the Enfield address shown on their 1969 return which was filed with the North-Atlantic Service Center no less than 20 days before the statutory notice was mailed. If petitioners’ contention is held to be correct, the case would have a different frame of reference. Compare Frances Lois Stewart, 55 T.C. 238, 241 (1970), on appeal (C.A. 9, Jan. 29, 1971); Estate of Francis P. McKaig, Jr., 51 T.C. 331, 335 (1968). We find that respondent’s notice of deficiency was indeed mailed to petitioners’ “last known address” as of the date of the mailing and that petitioners’ filing of their 1969 return was not the kind of notice sufficient to apprise respondent of their newest and second Connecticut address. Petitioners’ did not file their petition in this Court in a timely fashion and hence respondent’s motion to dismiss for lack of jurisdiction will be granted. Section 6212(b) (1) of the Code provides that respondent’s notice of deficiency will be sufficient if mailed to taxpayer’s “last known address.” The “last known address” is the last known permanent address or legal residence of taxpayer or last knowntemporary address of a definite duration or period to which all communications during such period should be sent. Harvey L. McCormick, 55 T.C. 138 (1970); Gregory v. United States, 57 F. Supp. 962 (Ct. Cl. 1944). A taxpayer who asserts that a notice of deficiency has been mailed to him at the wrong address must show that he furnished respondent with a clear and concise notification concerning a definite change of address. Harvey L. McCormick, supra; Langdon P. Marvin, J.r., 40 T.C. 982 (1963). Petitioners here have not shown that they filed a clear and concise notification with respondent" }, { "docid": "8780518", "title": "", "text": "the purpose of section 6212 — the giving of notice to a taxpayer that respondent proposes a deficiency — is acheived if the taxpayer receives actual notice. See, e.g., Berger v. Commissioner, supra; Alta Sierra Vista, Inc. v. Commissioner, supra; Zaun v. Commissioner, supra; Lifter v. Commissioner, supra. The other element of the rationale is that the taxpayer is not harmed if the improperly addressed notice of deficiency is actually received in time to file a timely petition with this Court. See, e.g., Clodfelter v. Commissioner, supra; Degill Corp. v. Commissioner, supra; Brzezinski v. Commissioner, supra; cf. Shelton v. Commissioner, 63 T.C. 193 (1974). Both elements of the rationale apply to the facts of the instant case. Petitioner received actual notice of the deficiency, and thus was alerted to the respondent’s assertion of a deficiency. Petitioner filed her petition within 90 days after the notice of deficiency was mailed. We conclude that the notice of deficiency in the instant case is valid, notwithstanding that respondent did not mail it to the address at which petitioner resided. Because of this conclusion, we find it unnecessary to decide whether the notice of deficiency was mailed to petitioner’s last known address. Petitioner concedes that courts have held that if a taxpayer receives actual notice in a timely fashion so that the taxpayer is not prejudiced by errors in mailing the notice of deficiency, then the notice will not be invalidated on the ground of “last known address.” However, “Petitioner asserts that the operative and distinguishing factor in the case at bar is the fact that she did not receive any notification that there was a deficiency against her until after the statute of limitations had expired.” (Petitioner’s opening brief, p. 24; emphasis in original.) She stresses the importance of the statute of limitations and its underlying rationale. She argues that at some point she “must be allowed the repose of knowing [she] will not be assessed additional taxes.” However, section 6501(c)(1), by providing that there are no time limits on assessment or judicial proceedings to collect taxes in the case of fraud,.in effect" }, { "docid": "19320411", "title": "", "text": "W. Heaberlin, supra; however, it is inapposite. In that case, a timely petition was not filed, and this Court concluded that the error in addressing the notice of deficiency was not a harmless one. In the present case, a timely petition was filed, “and obviously the taxpayer * * * suffered no damage and lost no right as a result of the error in the address.” John W. Heaberlin, supra at 59. We believe reliance on the technical allegation in the petition that petitioners were not given proper notice of the deficiency 'misconceives the intent and purpose of section 6212(b)(1). We think respondent has shown that the notice of deficiency was mailed to petitioners at their last-known address within the meaning of section 6212(b) (1). The 3020 Beverly Plaza address, though an incorrect street number, was given to the IRS personnel by petitioners’ attorney, and, in fact, the attorney used that address in communicating with petitioners. The Seattle office of the IRS had used that address in mailing the proposed waivers on November 22, 1968, and Floyd confirmed receipt of that communication in a subsequent telephone conversation held before the notice was mailed. Furthermore, the notice of deficiency, mailed to that address, was actually received by-petitioners without any delay. Indeed, the notice was promptly delivered and was received on January 9, 1969, along with all other mail accumulated for petitioners during the Christmas holidays, thus enabling petitioners to file a timely petition in this Court. Petitioners were not prejudiced in any way by the error. In the final analysis, the facts of this case are not distinguishable in principle from those cases which have held that inconsequential errors in addressing a notice of deficiency do not destroy its validity. See, e.g., Clement Brzezinski, 23 T.C. 192 (1954); Daniel Thew Wright, 34 B.T.A. 84 (1936), affirmed per curiam 101 F. 2d 309 (C.A. 4, 1939); Kay Manufacturing Co., 18 B.T.A. 753 (1930), affirmed per curiam 53 F. 2d 1083 (C.A. 2, 1931); cf. Boren v. Riddell, 241 F. 2d 670 (C.A. 9, 1957); Bankers Trust Co., Trustee, 24 B.T.A. 10 (1931)." }, { "docid": "426053", "title": "", "text": "the mailing of a notice of deficiency also bars the Commissioner from making any assessment or collection during that 90-day (or 150-day) period and, if a petition is filed in the Court, bars such assessment or collection until the decision of the Tax Court has become final. The issues in this case are (1) whether or not the notice of deficiency was sent to petitioners’ \"last known address” as that term is used in section 6212(b)(1), and (2) if not, whether the notice of deficiency is nonetheless valid to toll the limitations period under section 6503(a)(1), where the notice was received by petitioners and where petitioners timely filed their petition within 90 days after the mailing of the notice of deficiency. The Court has decided many cases involving a taxpayer’s \"last known address,” usually in the context of whether or not the petition was timely filed under section 6213(a). This case for the first time presents the question of whether the \"last known address” provision of section 6212(b)(1) is a legal requirement for a notice of deficiency to be valid for purposes of tolling the running of the limitations period under section 6503(a)(1). The issue is critical here because the notice of deficiency was mailed on the last day of the 3-year limitations period. Section 6501(a) provides that the amount of any deficiency shall be assessed within 3 years after the return was filed. Section 6503(a)(1) provides, however, that the running of the 3-year period of limitations on assessment is suspended by \"the mailing of a notice under section 6212(a)” for the period during which assessment is prohibited and for 60 days thereafter. It is well settled that a notice of deficiency mailed to the taxpayer’s \"last known address” is valid for all purposes from the date of its mailing whether or not the taxpayer actually receives it. Zenco Engineering Corp. v. Commissioner, 75 T.C. 318, 321-322 (1980), affd. without published opinion 673 F.2d 1332 (7th Cir. 1981); Lifter v. Commissioner, 59 T.C. 818, 820-821 (1973); Brzezinski v. Commissioner, 23 T.C. 192, 195 (1954). Such a notice commences the 90-day" }, { "docid": "8780516", "title": "", "text": "notice of deficiency was mailed. OPINION Petitioner argues that the statutory notice of deficiency was not mailed to her last known address, as required by section 6212(b), and is therefore not valid. Respondent disagrees, asserting that the notice of deficiency was mailed to addresses which respondent reasonably believed to be the last known addresses of petitioner and Richard. Respondent argues that, even if the notice of deficiency was not sent to petitioner’s last known address, the underlying intent of the statute was satisfied by petitioner’s actual receipt of the notice and her filing of a petition with the Court within 90 days after the notice was mailed. As a result, respondent concludes, the notice of deficiency is valid. Petitioner disagrees, asserting that filing of the petition does not cure the defect in the notice, especially since the notice was not received by petitioner until after the statute of limitations had expired. We agree with respondent that, on the facts in this case, the notice of deficiency is valid. Section 6212(a) provides for the mailing of notices of deficiency which, under section 6213(a) constitute “tickets to the Tax Court.” Section 6212(b)(1) provides that such a notice is valid if mailed to the taxpayer’s “last known address.” A notice of deficiency is valid even though there are errors in the mailing address, if there is a timely filing of a petition with this Court and if the taxpayer suffered no damage as a result of the errors. Brzezinski v. Commissioner, 23 T.C. 192 (1954), and cases cited therein; see Clodfelter v. Commissioner, 527 F.2d 754 (9th Cir. 1975), cert. denied 425 U.S. 979 (1976), affg. 57 T.C. 102 (1971); Berger v. Commissioner, 404 F.2d 668 (3rd Cir. 1968), cert. denied 395 U.S. 905 (1969), affg. 48 T.C. 848 (1967); Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367 (1974), affd. 538 F.2d 334 (9th Cir. 1976); Degill Corp. v. Commissioner, 62 T.C. 292 (1974); Zaun v. Commissioner, 62 T.C. 278 (1974); Lifter v. Commissioner, 59 T.C. 818 (1973). The rationale of this rule is twofold. One element of the rationale is that" }, { "docid": "426054", "title": "", "text": "of deficiency to be valid for purposes of tolling the running of the limitations period under section 6503(a)(1). The issue is critical here because the notice of deficiency was mailed on the last day of the 3-year limitations period. Section 6501(a) provides that the amount of any deficiency shall be assessed within 3 years after the return was filed. Section 6503(a)(1) provides, however, that the running of the 3-year period of limitations on assessment is suspended by \"the mailing of a notice under section 6212(a)” for the period during which assessment is prohibited and for 60 days thereafter. It is well settled that a notice of deficiency mailed to the taxpayer’s \"last known address” is valid for all purposes from the date of its mailing whether or not the taxpayer actually receives it. Zenco Engineering Corp. v. Commissioner, 75 T.C. 318, 321-322 (1980), affd. without published opinion 673 F.2d 1332 (7th Cir. 1981); Lifter v. Commissioner, 59 T.C. 818, 820-821 (1973); Brzezinski v. Commissioner, 23 T.C. 192, 195 (1954). Such a notice commences the 90-day period for petitioning this Court and tolls the statute of limitations on assessment of the tax on the date it is mailed. Secs. 6213(a) and 6503(a)(1). Respondent’s first argument is that the notice of deficiency was mailed to petitioners at their \"last known address.” If respondent is right and the foregoing rules apply, then we need go no further. Petitioners contend, however, that respondent failed to mail the notice of deficiency to them at their \"last known address.” As a consequence, they argue, the notice was not effective until it was actually received by them, at which time the statute of limitations under section 6501(a) had expired. Issue 1. Last Known Address In arguing that the notice of deficiency was not .mailed to their \"last known address,” petitioners emphasize that, 12 days before the notice was mailed, they orally notified an employee of the Office of the Returns Program Manager by telephone that their new address was the Niles address. They also point out that on the same day they gave their notification, respondent mailed" }, { "docid": "15594942", "title": "", "text": "filed objections to respondent’s motion to dismiss and also moved to dismiss this case for the reason that a valid notice of deficiency had not been mailed to petitioners, the notice of deficiency not having been mailed to their last known addresses as required by section 6212(b)(2), I.R.C. 1954. Both motions to dismiss were set for hearing before the Court at San Diego, Calif., on June 17, 1974. Counsel for both parties agreed to submit the motions to the Court on a stipulation of facts. The stipulation of facts was filed with the Court, and the motions were taken under advisement. The stipulated facts are included in the recitals above. The only question for decision is whether, when a petition is not filed in this Court within the time prescribed in the applicable sections of the Internal Revenue Code, this Court has jurisdiction to determine whether the notice of deficiency upon which the petition was based is valid. If this question is answered in the negative, then we must grant respondent’s motion to dismiss for untimely filing of the petition and respondent will be free to assess and collect the tax unless petitioners take some action in another court to prevent such action. On the other hand, if the answer to the question is in the affirmative, then we will grant petitioners’ motion to dismiss because the notice of deficiency mailed to petitioners was not valid, having not been mailed to petitioners at their last known addresses within the import of section 6212(b) of the Code. In such event, respondent may not assess a deficiency in tax, under normal circumstances, until he has issued a valid notice of deficiency to petitioners. See Pfeffer v. Commissioner, 272 F. 2d 383 (C.A. 2, 1959), affirming an order of this Court; Estate of Francis P. McKaig, Jr., 51 T.C. 331 (1968). This Court has in numerous cases dealt with questions concerning the validity of notices of deficiency which were claimed by the taxpayers not to have been mailed to their last known addresses. See Daniel Lifter, 59 T.C. 818 (1973), and cases cited" }, { "docid": "12645659", "title": "", "text": "944 (1978). When the Congress enacted the timely mailing as timely filing provisions, using terms such as “delivered by United States mail,” we cannot say that the Congress intended to include delivery by private delivery services. Lastly, petitioners argue what they perceive to be the equities of their case, urging that the petition was only 1 day late and was received at the Court shortly after 9 a.m. on the 91st day. While the Court believes a taxpayer should be able to have his day in Court without first paying the deficiency determined by respondent, the Congress, in creating the prepayment forum (deficiency jurisdiction) in this Court, placed a time limit on a taxpayer’s access to the Court. In section 7502, the Congress liberalized the time requirements somewhat by permitting timely mailing to be treated as timely filing in some cases. If that is to be further liberalized to extend to use of a private delivery service instead of the U.S. mails, that change in the law must come from the Congress and not from this Court. We hold that section 7502 does not apply when delivery is made by a private delivery service rather than by the U.S. Postal Service, and the petition in this case was not timely filed. Petitioners argue alternatively that the 90-day period for filing their petition never started to run because the statutory notice of deficiency was not sent to their “last known address” as required by section 6212(b). Normally the taxpayer’s “last known address” is the address shown on the tax return unless the taxpayer has notified respondent of a change of address. Keeton v. Commissioner, 74 T.C. 377, 382 (1980); Lifter v. Commissioner, 59 T.C. 818, 821 (1973). Here the notice of deficiency was mailed to petitioners at the address shown on their return, but petitioners argue that it should have been mailed to the Whitlockville Road address in Katonah, N.Y. Petitioners never notified respondent, and respondent had no way to know that they wished any notices or other communications sent to that address or to any other address than the return" }, { "docid": "426062", "title": "", "text": "a procedure for giving notice that \"shall be sufficient” in cases where, due to the taxpayer’s failure to give notice of a change of address, actual notice cannot be perfected. Mulvania v. Commissioner, 81 T.C. 65 (1983). Because of this provision, a notice that is mailed to the taxpayer’s \"last known address” will be valid even if it is never received. DeWelles v. Commissioner, supra at 39-40; Alta Sierra Vista, Inc. v. Commissioner, supra at 372; Lifter v. Commissioner, supra at 821. Some opinions contain language stating that, under section 6212(b)(1), notice of a deficiency must be sent to the taxpayer’s last known address in order to be effective. However, there is a long line of cases holding deficiency notices to be valid even though they were not mailed to the taxpayer’s last known address. Those cases have sustained the validity of an incorrectly addressed notice where the notice is received by the taxpayer within the period for petitioning this Court and a timely petition is filed. Clodfelter v. Commissioner, 527 F.2d 754, 757 (9th Cir. 1975), affg. 57 T.C. 102 (1971); Goodman v. Commissioner, 71 T.C. 974, 977-978 (1979); Brzezinski v. Commissioner, supra at 195. See also Commissioner v. Stewart, 186 F.2d 239 (6th Cir. 1951), revg. a Memorandum Opinion of this Court. The deficiency notices in those cases were held to he valid because they served the two functions of section 6212: (1) They notified the taxpayer that a deficiency had been determined against him, and (2) they gave the taxpayer the opportunity to petition this Court for redetermination of the proposed deficiency. Compare Mulvania v.. Commissioner, supra. Although the notice of deficiency in the present case was not mailed to petitioners at their \"last known address,” it was sent to them by certified mail as authorized in section 6212(a). More importantly, petitioners actually received the notice well within 90 days of its mailing and timely filed a petition in this • Court. Therefore, pursuant to the above cited cases, we hold that the notice of deficiency complied with section 6212(a). The next question is whether a notice" }, { "docid": "8780519", "title": "", "text": "resided. Because of this conclusion, we find it unnecessary to decide whether the notice of deficiency was mailed to petitioner’s last known address. Petitioner concedes that courts have held that if a taxpayer receives actual notice in a timely fashion so that the taxpayer is not prejudiced by errors in mailing the notice of deficiency, then the notice will not be invalidated on the ground of “last known address.” However, “Petitioner asserts that the operative and distinguishing factor in the case at bar is the fact that she did not receive any notification that there was a deficiency against her until after the statute of limitations had expired.” (Petitioner’s opening brief, p. 24; emphasis in original.) She stresses the importance of the statute of limitations and its underlying rationale. She argues that at some point she “must be allowed the repose of knowing [she] will not be assessed additional taxes.” However, section 6501(c)(1), by providing that there are no time limits on assessment or judicial proceedings to collect taxes in the case of fraud,.in effect denies this repose to a taxpayer with respect to whose return fraud has been asserted. Although no fraud has been asserted against petitioner, proof of fraud on the part of Richard, as to the joint returns, in any further proceedings in which petitioner is a party, keeps the statute of limitations open as to petitioner. Hicks Co. v. Commissioner, 56 T.C. 982, 1030 (1971); Stone v. Commissioner, 56 T.C. 213, 227-228 (1971). Thus, petitioner’s contention that she received the improperly mailed notice of deficiency after the statute of limitations expired is not persuasive for the simple reason that the asserted statute of limitations had not expired. See Estate of McKaig v. Commissioner, 51 T.C. 331, 337 (1968). We conclude that respondent’s assertion of fraud in the notice of deficiency vitiates petitioner’s argument, and that the above-stated rule should be applied in the instant case. Petitioner relies upon our opinion in Greve v. Commissioner, 37 B.T.A. 450, 452 (1938), where we stated as follows: The original mailing, having been directed to a wrong address, did not" }, { "docid": "15594943", "title": "", "text": "untimely filing of the petition and respondent will be free to assess and collect the tax unless petitioners take some action in another court to prevent such action. On the other hand, if the answer to the question is in the affirmative, then we will grant petitioners’ motion to dismiss because the notice of deficiency mailed to petitioners was not valid, having not been mailed to petitioners at their last known addresses within the import of section 6212(b) of the Code. In such event, respondent may not assess a deficiency in tax, under normal circumstances, until he has issued a valid notice of deficiency to petitioners. See Pfeffer v. Commissioner, 272 F. 2d 383 (C.A. 2, 1959), affirming an order of this Court; Estate of Francis P. McKaig, Jr., 51 T.C. 331 (1968). This Court has in numerous cases dealt with questions concerning the validity of notices of deficiency which were claimed by the taxpayers not to have been mailed to their last known addresses. See Daniel Lifter, 59 T.C. 818 (1973), and cases cited therein. We have also dealt, in numerous cases, with questions concerning the timeliness of petitions filed with the Court, under varying circumstances. See Angelo Vitale, 59 T.C. 246 (1972); Frances Lois Stewart, 55 T.C. 238 (1970), affirmed per curiam (C.A. 9, 1972); Estate of Frank Everest Moffat, 46 T.C. 499 (1966); Nathaniel A. Denman, 35 T.C. 1140 (1961); Sam Satovsky, 1 B.T.A. 22 (1924). However, we have not found too many cases wherein the Commissioner had filed a motion to dismiss for lack of jurisdiction because the petition was admittedly not timely filed but the Court nevertheless ruled on petitioner’s motion to dismiss because the notice of deficiency was invalid. There are a sufficient number of those cases, however, to make it clear that even though the petition was not timely filed, this Court may determine the validity of the notice of deficiency and dismiss for lack of jurisdiction on that ground if it concludes that the notice of deficiency was invalid, with the different effect on future proceedings mentioned above. In Gennaro A. Carbone," }, { "docid": "1406665", "title": "", "text": "provides that the notice shall be sufficient if mailed to the taxpayer “at his last known address.” If this is done the notice is sufficient even though the taxpayer may not actually receive it. But here respondent apparently had no “last known address” for petitioner, although his agents had been in contact with petitioner. Thus, section 6212(b)(1) does not serve to validate this notice of deficiency. The purpose of the notice of deficiency is to notify the taxpayer of the determination of a deficiency in tax and the proposed assessment of that deficiency within time for petitioner to file a timely petition in this Court. Clement Brzezinski, supra. Under the circumstances here present, we think it was incumbent upon respondent to either obtain a usable address from petitioner or to make a reasonable effort to see to it that petitioner received a copy of the notice within time to file a timely petition in this Court. This could have been done by either attempting to deliver a copy of the notice to petitioner in jail or by attempting to determine which of the various addresses they had for petitioner would be the address at which petitioner would most reasonably be calculated to receive the notice. Here respondent had no reason to believe that petitioner wanted him to use either of the addresses used to send mail to him, see Daniel Lifter, supra/ nor could the notice of deficiency, so mailed, be reasonably calculated to apprise petitioner of the action respondent proposed to take so petitioner could file a timely petition in this Court, see Robinson v. Hanrahan, supra. The defect in mailing of the notice was not merely technical, see Daniel Lifter, supra at 823, and petitioner did not receive a copy of the notice of deficiency in time to file a timely petition in this Court. We recognize that the respondent should not be required to go to unreasonable lengths to be certain that the taxpayer receives the notice of deficiency where the taxpayer has not filed returns and respondent has no readily accessible “last known address,” and we" } ]

[ { "docid": "22819909", "title": "", "text": "Justice Stevens delivered the opinion of the Court. On February 6, 1982, an obviously intoxicated off-duty serviceman named Carr fired several rifle shots into an automobile being driven by petitioners on a public street near the Bethesda Naval Hospital. Petitioners brought suit against the United States alleging that their injuries were caused by the Government’s negligence in allowing Carr to leave the hospital with a loaded rifle in his possession. The District Court dismissed the action — and the Court of Appeals affirmed — on the ground that the claim is barred by the intentional tort exception to the Federal Tort Claims Act (FTCA or Act). The question we granted certiorari to decide is whether petitioners’ claim is one “arising out of” an assault or battery within the meaning of 28 U. S. C. § 2680(h). I When it granted the Government’s motion to dismiss, the District Court accepted petitioners’ version of the facts as al leged in their complaint and as supplemented by discovery. That version may be briefly stated. After finishing his shift as a naval medical aide at the hospital, Carr consumed a large quantity of wine, rum, and other alcoholic beverages. He then packed some of his belongings, including a rifle and ammunition, into a uniform bag and left his quarters. Some time later, three naval corpsmen found him lying face down in a drunken stupor on the concrete .floor of a hospital building. They attempted to take him to the emergency room, but he broke away, grabbing the bag and' revealing the barrel of the rifle. At the sight of the rifle barrel, the corpsmen fled. They neither took further action to subdue Carr, nor alerted the appropriate authorities that he was heavily intoxicated and brandishing a weapon. Later that evening, Carr fired the shots that caused physical injury to one of the petitioners and property damage to their car. The District Court began its legal analysis by noting the general rule that the Government is not liable for the intentional torts of its employees. The petitioners argued that the general rule was inapplicable because" } ]

[ { "docid": "4430447", "title": "", "text": "OPINION OF THE COURT A. LEON HIGGINBOTHAM, Jr., Circuit Judge. Once again, we are' asked to decide the rights of a serviceman who, while on autho rized leave and off base, suffered a fatal injury because of, inter alia, the alleged negligence of persons within the command hierarchy of the United States Army (“Army”). We are confronted with the traditional defenses of the Feres doctrine and a claim of the inapplicability of the Federal Tort Claims Act. Plaintiff-appellant Louise Shearer brought this action against defendant-appellee, the United States, under the Federal Torts Claim Act (“FTCA”), 28 U.S.C. Sections 1346(b), 2671-2680, claiming that the negligence of the Army caused the murder of her son Private Vernon Shearer. Relying on the Feres doctrine, the district court granted the government’s motion for summary judgment. Appellant challenges the district court’s decision presenting two issues for consideration on this appeal: whether either the Feres doctrine or the intentional tort exception to the FTCA bars appellant’s action. We hold that neither the Feres doctrine nor the intentional tort exception to the FTCA bars appellant’s claim. We therefore will reverse the district court’s order granting summary judgment to the United States and will remand this case to the district court. I. For the purposes of this appeal, we must accept as true the following facts pleaded by appellant — the party against whom summary judgment has been ordered: the decedent, Vernon Shearer, was an eighteen-year old private in the Army stationed at Fort Bliss, Texas. Having been in the Army barely four months, on June 2, 1979, while off the military reservation on an authorized leave from his unit, Shearer was “kid- • napped at point of gun and shot to death” in New Mexico by Private Andrew Heard. Heard was also off-duty. Three years before, while stationed in Germany, Heard also had been prosecuted for what was alleged to be a gruesome murder of a German woman. The indictment alleged that he had “inflicted serious head injuries on the 38-year-old Margarete Hess on the occasion of sexual actions by means of a wrench and a lifting" }, { "docid": "6349682", "title": "", "text": "United States, 463 F.Supp. 908, 912 (E.D.Pa.1978). Moreover, courts, have uniformly permitted claims arising out of assaults by non-employees, where governmental negligence was a contributing cause. See United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963); Jablonski v. United States, 712 F.2d 391, 395 (9th Cir.1983); Rogers v. United States, 397 F.2d 12 (4th Cir.1968); Panella, 216 F.2d at 623. In 1988, the Supreme Court’s decision in Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988), clarified, to some extent, the scope of § 2680(h)’s assault and battery exception. The plaintiffs in Sheridan had been shot by an off-duty navy corpsman, who was employed at the Bethesda Naval Hospital. Prior to the shooting, the corpsman had been discovered by other Navy personnel wandering around in a drunken stupor on hospital grounds, carrying a rifle. Rather than restrain the corpsman, the Navy personnel fled the scene, and the corpsman subsequently shot his rifle into a passing ear, injuring the plaintiffs. The Sheridan plaintiffs alleged that the government had been negligent in failing to restrain the corpsman, who was drunk and carrying a weapon on Navy property, in violation of Navy regulations. The government defended on the ground that the plaintiffs’ claim was barred by the assault and battery exception. The court held that the claim was riot barred. The court began its analysis by recognizing that the assault and battery exception had never been interpreted as a complete bar to claims in which an assault arid battery was the direct cause of the plaintiff’s injury. 487 U.S. at 398-399, 108 S.Ct. at 2454. In United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963), for example, the court had held that a prisoner could bring suit against the government for damages resulting from an assault by other prisoners which prison guards had negligently permitted to take place. The Sheridan Court posited two theories which could explain why such a claim did not “arise out of” an assault or battery, within the meaning of § 2680(h). First, it" }, { "docid": "11402482", "title": "", "text": "grabbing [his] bag and revealing the barrel of the rifle.” Id. at 395, 108 S.Ct. 2449. The corpsmen then fled from the scene and took no further action to restrain the tortfeasor or to alert authorities that the tortfeasor was intoxicated and in possession of a firearm. Id. The tortfeasor later shot and injured one of the plaintiffs and damaged the plaintiffs’ vehicle. Id. The plaintiffs then sued the government by way of the three corpsmen for negligently allowing the tortfeasor to leave the hospital with a gun while “obviously intoxicated.” Id. at 393-94, 108 S.Ct. 2449. The district court in Sheridan dismissed the plaintiffs’ complaint as barred by the intentional-tort exception, and this Court affirmed, holding that “ § 2680(h) bars actions alleging negligence of the supervising employees when the underlying tort is an assault or battery by a government employee.” Sheridan v. United States, 823 F.2d 820, 823 (4th Cir.1987). The Supreme Court, however, reversed and allowed the plaintiffs’ claim against the government to proceed, reasoning that the mere fact that [the tortfeasor] happened to be an off-duty federal employee should not provide a basis for protecting the Government from liability that would attach if [he] had been an unemployed civilian patient or visitor in the hospital. Indeed, in a case in which the employment status of the assailant, has nothing to do with the basis for imposing liability on the Government, it would seem perverse to exonerate the Government because of the happenstance that [the tortfeasor] was on a federal payroll. Sheridan, 487 U.S. at 402, 108 S.Ct. 2449. Here, the district court below held that, unlike in Sheridan — where the drunken tortfeasor’s status as a government employee was wholly irrelevant to imposing liability on the government for the corpsmen’s negligence — Pernell’s status as a government employee was a but— for element of Durden’s negligence claim, thus barring the claim. Specifically, the district court held that “even if the government’s knowledge of Pernell’s tendency to commit criminal acts made Pernell’s assaulting Durden foreseeable to the government before December 13, 2009, section 2680(h) still negates the" }, { "docid": "5075791", "title": "", "text": "that the aide was armed with a rifle. Id. The corpsmen failed to report this incident to the appropriate authorities. Id. Later that night, the aide fired his rifle into a passing car, injuring one of the passengers. Id. Petitioners brought a claim under the FTCA alleging that their injuries were caused by the Government’s negligence. Id at 394, 108 S.Ct. at 2451-52. The courts below dismissed the petitioners’ claim because it implicated an intentional tort by a Government employee. Id. at 395, 108 S.Ct. at 2452. The Sheridan Court began its discussion by noting, “it is both settled and undisputed that in at least some situations the fact that an injury was directly caused by an assault or battery will not preclude liability against the Government for negligently allowing the assault to occur.” Id. at 398, 108 S.Ct. at 2454 (citing United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963)). The Court added that even if an intentional tort was “a sine qua non of recovery,” recovery under the FTCA was not precluded pursuant to § 2680(h). Id. at 400, 108 S.Ct. at 2454. The Court held that § 2680(h) did not preclude recovery from the government for the intentional tort of its employee acting outside the scope of his or her duty. Id. at 401, 108 S.Ct. at 2455. The Court expounded on its holding by addressing the question of whether the Government owed the petitioners a duty that arose independent from the aide’s status as a Government employee. The Court stated that “[b]y voluntarily adopting regulations that prohibit the possession of firearms on the naval base and that require all personnel to report the presence of any such firearm, and by further voluntarily undertaking to provide care” to the aide, the Government had assumed a duty of due care to the petitioners. Id. at 401, 108 S.Ct. at 2455. Thus, the employment status of the petitioners’ assailant had nothing to do with the duty owed by the Government; the petitioners’ theory of liability was analogous to those cases in which a person" }, { "docid": "23180736", "title": "", "text": "We begin with the last claim first. 1. Albrecht Subrogees’ claim about failing to enforce regulations centers on the interaction between Albrecht and Lewis. Subro-gees contend that Albrecht’s admonition to Lewis was not enough. As Lewis’s supervisor, they argue, Albrecht had a duty to follow up with Lewis and ensure that he did not allow Armstrong to stay at his home. Albrecht’s omission, in their view, constituted negligent supervision of his subordinate, Lewis. In support of their argument, Subrogees cite Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988). In that case, an off-duty and very drunk serviceman left the Bethesda Naval Hospital with a rifle and ammunition. Prior to leaving the hospital he fought with three other Naval corpsmen who unsuccessfully tried to subdue him. After the serviceman fled, the corpsmen never alerted authorities that a drunken serviceman was wandering about with a rifle. The serviceman then fired shots at a car, injuring a passenger inside it. Id. at 395, 108 S.Ct. 2449. The Government argued the serviceman had committed an intentional tort. Claims stemming from intentional torts generally are excluded from the Government’s waiver of sovereign immunity under 28 U.S.C. § 2680(h). It states that § 1346(b)(l)’s waiver of sovereign immunity does not apply to “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights,” with certain exceptions for investigative or law enforcement officers. The Government cannot take advantage of this so-called “assault and battery exception” to its waiver of sovereign immunity in our case because “the exception only applies in cases arising out of assaults by federal employees.” Sheridan, 487 U.S. at 400, 108 S.Ct. 2449 (citing Panella v. United States, 216 F.2d 622 (2d Cir.1954) (Harlan, J.)). Armstrong, the assailant in our case, was an Army recruit but does not qualify as a government employee. Because the plaintiffs in Sheridan sought to sue for the Government’s negligence in “fail[ing] to prevent [the serviceman’s] use of a rifle,” id. at 395, 108 S.Ct. 2449, and not alerting" }, { "docid": "11402481", "title": "", "text": "merits of Durden’s claim at this stage of the litigation. III. As an alternative basis for dismissing Durden’s complaint, the district court held that the fact that the Army gained knowledge of Pernell’s allegedly violent propensity via his government employment was enough to nullify Durden’s claims pursuant to the FTCA’s intentional-tort exception. The district court overstated the exception’s reach, however, .and therefore we conclude that the district court erred in dismissing Durden’s complaint on this alternative basis. The FTCA carves out an exception to its own general waiver of immunity that bars recovery for “[a]ny claim arising out of assault[ ][or] battery.” 28 U.S.C. § 2680(h). The Supreme Court defined the scope of the intentional-tort exception in Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988). In Sheridan, three naval corpsmen encountered the tortfeasor, also a naval employee, in a drunken stupor in the hallway of a naval hospital. Id. at 394-95, 108 S.Ct. 2449. The corpsmen “attempted to take [the tortfeasor] to the emergency room, but he broke away, grabbing [his] bag and revealing the barrel of the rifle.” Id. at 395, 108 S.Ct. 2449. The corpsmen then fled from the scene and took no further action to restrain the tortfeasor or to alert authorities that the tortfeasor was intoxicated and in possession of a firearm. Id. The tortfeasor later shot and injured one of the plaintiffs and damaged the plaintiffs’ vehicle. Id. The plaintiffs then sued the government by way of the three corpsmen for negligently allowing the tortfeasor to leave the hospital with a gun while “obviously intoxicated.” Id. at 393-94, 108 S.Ct. 2449. The district court in Sheridan dismissed the plaintiffs’ complaint as barred by the intentional-tort exception, and this Court affirmed, holding that “ § 2680(h) bars actions alleging negligence of the supervising employees when the underlying tort is an assault or battery by a government employee.” Sheridan v. United States, 823 F.2d 820, 823 (4th Cir.1987). The Supreme Court, however, reversed and allowed the plaintiffs’ claim against the government to proceed, reasoning that the mere fact that [the tortfeasor]" }, { "docid": "4727875", "title": "", "text": "2454, 101 L.Ed.2d 352 (1988) (quoting 28 U.S.C. § 1346(b)). The Court further noted, however, that this broad jurisdictional grant' “ ‘shall not apply to ... [a]ny claim arising out of assault, battery’ or other specified intentional torts.” Id. (quoting 28 U.S.C. § 2680(h)). Plaintiffs’ First Cause of Action clearly seeks to impose direct liability upon the United States for the sexual assaults and batteries allegedly perpetrated by Naval officers at the Convention social events. Because the actions for which Plaintiffs seek damages are included within a category of intentional torts that have been specifically exempted from the FTCA’s jurisdictional grant, this Court lacks subject matter jurisdiction over them. Therefore, Plaintiffs’ First Cause of Action must be dismissed. 2. Defendant United States’ Motion to Dismiss Plaintiffs’ Second Cause of Action. In their Second Cause of Action, Plaintiffs seek to impose liability upon the United States for negligence. The United States argues that this cause of action is also precluded by the assault and battery exception, 28 U.S.C. § 2680(h), or alternatively, that Plaintiffs cannot establish liability under Nevada law. In Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988), the Supreme Court held the assault and battery exception does not bar recovery “when a negligence claim against the government arises out of an incident of battery but is in no way contingent on the perpetrator’s federal employment status, i.e., when the government’s liability is based on its breach of a duty owed the victim that is independent of its relationship, if any, to the perpetrator ...” Franklin v. United States, 992 F.2d 1492, 1498 (10th Cir.1993) (citing Sheridan, 487 U.S. at 400-03, 108 S.Ct. at 2454-56). In Sheridan, the Supreme Court noted that both the district court and the court of appeals “assumed that the alleged negligence would have made the defendant liable under the law of Maryland, and also assumed that the Government would have been liable if [the perpetrator] had not been a Government employee.” 487 U.S. at 395, 401,108 S.Ct. at 2452, 2455. The Court assumed that the government’s liability existed under" }, { "docid": "5075790", "title": "", "text": "quality assurance and documentation; the defendant failed to adhere to its own regulations regarding supervision in the nursery; the defendant failed to identify the cause of the plaintiffs’ injuries and take steps to prevent recurrence thereof; and the defendant ignored both direct and indirect warnings about Beekelic’s unsuitability for placement in the nursery. This type of claim is not excepted from the waiver of sovereign immunity found in 28 U.S.C. § 1346(b). See Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988); United States v. Muniz, 374 U.S. 150, 88 S.Ct. 1850, 10 L.Ed.2d 805-(1963). In Sheridan, the Supreme Court was faced with this same issue in a case factually analogous to the instant case. In Sheridan, three naval corpsmen found a naval medical aide “lying face down in a drunken stupor on the concrete floor of a hospital building.” 487 U.S. at 395, 108 S.Ct. at 2452. The corpsmen initially tried to get the aide to the emergency room, but fled when the aide resisted and it was revealed that the aide was armed with a rifle. Id. The corpsmen failed to report this incident to the appropriate authorities. Id. Later that night, the aide fired his rifle into a passing car, injuring one of the passengers. Id. Petitioners brought a claim under the FTCA alleging that their injuries were caused by the Government’s negligence. Id at 394, 108 S.Ct. at 2451-52. The courts below dismissed the petitioners’ claim because it implicated an intentional tort by a Government employee. Id. at 395, 108 S.Ct. at 2452. The Sheridan Court began its discussion by noting, “it is both settled and undisputed that in at least some situations the fact that an injury was directly caused by an assault or battery will not preclude liability against the Government for negligently allowing the assault to occur.” Id. at 398, 108 S.Ct. at 2454 (citing United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963)). The Court added that even if an intentional tort was “a sine qua non of recovery,” recovery under the" }, { "docid": "2733080", "title": "", "text": "see 28 U.S.C. § 1346(b), it has not waived immunity for every type of tort. One of the exceptions contained in the FTCA is the “intentional tort” exception. It provides that immunity is not waived as to: Any claim arising out of assault, battery, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights.... § 2680(h). Thus, we must decide whether Kugel’s complaint states a claim resulting solely from the defamatory acts of government agents, in which case the intentional torts exception bars it, or whether he asserts a distinct negligence claim cognizable under the FTCA. The Second Circuit has accurately noted that “[t]he task of maintaining the FTCA’s jurisdictional boundary has been more difficult in practice than is suggested by the statute’s facially neat distinction between claims sounding in negligence and those ‘arising out of’ the enumerated intentional torts.” See Guccione v. United States, 847 F.2d 1031, 1033 (2d Cir.1988), reh’g denied, 878 F.2d 32 (1989), cert. denied, 493 U.S. 1020, 110 S.Ct. 719, 107 L.Ed.2d 739 (1990). Decisions from our circuit and others, however, adequately guide our disposition of this appeal. In Art Metal-U.S.A., Inc. v. United States, 753 F.2d 1151 (D.C.Cir.1985), we held that a litigant may not substitute the name of a cause of action not included in section § 2680(h) for one that is included where the alleged breach of duties in the two claims is identical. Id. at 1154-55 (duty not to interfere with economic relationship with third parties is indistinguishable from duty not to interfere with contract rights). Here Kugel’s complaint appears to allege a claim other than defamation. In assessing the nature of his claim, however, we must scrutinize the alleged cause of his injury. See Block v. Neal, 460 U.S. 289, 297, 103 S.Ct. 1089, 1093, 75 L.Ed.2d 67 (1983) (examining which of plaintiffs two alleged FTCA claims actually caused her injuries). It appears to us that the cause of Kugel’s injury was not the FBI’s execution of the investigation but its dissemination of information associated with the investigation. This conclusion finds support in Supreme" }, { "docid": "11402483", "title": "", "text": "happened to be an off-duty federal employee should not provide a basis for protecting the Government from liability that would attach if [he] had been an unemployed civilian patient or visitor in the hospital. Indeed, in a case in which the employment status of the assailant, has nothing to do with the basis for imposing liability on the Government, it would seem perverse to exonerate the Government because of the happenstance that [the tortfeasor] was on a federal payroll. Sheridan, 487 U.S. at 402, 108 S.Ct. 2449. Here, the district court below held that, unlike in Sheridan — where the drunken tortfeasor’s status as a government employee was wholly irrelevant to imposing liability on the government for the corpsmen’s negligence — Pernell’s status as a government employee was a but— for element of Durden’s negligence claim, thus barring the claim. Specifically, the district court held that “even if the government’s knowledge of Pernell’s tendency to commit criminal acts made Pernell’s assaulting Durden foreseeable to the government before December 13, 2009, section 2680(h) still negates the court’s subject matter jurisdiction. After all, the government only acquired such knowledge in the course of Pernell’s employment.” Durden, 2012 WL 3834934, at *9; see id. (“[Because the government’s knowledge of [Pernell’s] tendency to commit criminal acts stemmed solely from [his] government employment, the government’s breach of any duty owed to [Durden] was not independent of the employment relationship.” (citing Bajkowski v. United States, 787 F.Supp. 539, 541-42 (E.D.N.C.1991) (“If [the tortfeasor] were not an employee of the Army, the Army would not have had ... knowledge of his prior criminal and assaultive behavior.... ”))). The same could be said, however, about the corpsmen’s knowledge of the intoxicated tortfea-sor in Sheridan: presumably, the corpsmen alleged to have acted negligently would not have been present in the naval hospital that night — and thus would not have gained knowledge of the drunken tortfeasor and put themselves in a position to be negligent in the first instance — were it not for their government employment. Accordingly, we hold that, although the government’s ability (i.e., legal duty) to" }, { "docid": "2733086", "title": "", "text": "FTCA, the alleged tort must create liability under the law of the state where the alleged acts or omissions occurred. See 28 U.S.C. § 1346(b). Despite Kugel’s contention that the tortious conduct supporting a false light invasion of privacy occurred in the District of Columbia, we think it is clear that the challenged conduct took place in North Carolina. Because North Carolina does not recognize the tort of false light invasion of privacy, see Hall v. Post, 323 N.C. 259, 372 S.E.2d 711 (1988), Kugel cannot bring his false light claim under the FTCA. For the preceding reasons, we conclude that the district court properly dismissed the plaintiff’s complaint as barred by section 2680(h) of the FTCA. Accordingly, the judgment below is Affirmed. . In his complaint and on brief, Kugel had alleged that Special Agent Whatley was negligent in the initiation as well as the execution of the investigation. At oral argument, however, his counsel conceded that Whatley’s initiation of the investigation was proper. . Several decisions from other circuits have held that an intentional tort arising out of negligent supervision by the government does not constitute an independent claim under the FTCA. See, e.g., Thigpen v. United States, 800 F.2d 393, 395-96 (4th Cir.1986) (negligent supervision claim based on naval hospital employee’s sexual molestation of two minors barred by assault and battery exception); Miele v. United States, 800 F.2d 50, 52 (2d Cir.1986) (negligent supervision claim where soldier threw sulphuric acid into child’s face barred by assault and battery exception); Hoot v. United States, 790 F.2d 836, 838 (10th Cir.1986) (claim based on negligent refusal of serviceman’s request for mental examination and treatment where serviceman violently assaulted plaintiff barred by assault and battery exception); Satterfield v. United States, 788 F.2d 395, 399 (6th Cir.1986) (wrongful death claim based on Army’s negligent failure to supervise serviceman who beat and killed another serviceman barred by intentional tort exception); Johnson v. United States, 788 F.2d 845, 850-51 (2d Cir.), cert, denied, 479 U.S. 914, 107 S.Ct. 315, 93 L.Ed.2d 288 (1986) (negligent supervision claim based on postman’s sexual assault on infant" }, { "docid": "23180738", "title": "", "text": "other security authorities, the Court held that the intentional tort bar to waivers of sovereign immunity did not apply, id. at 403, 108 S.Ct. 2449. The Government there was deemed to have waived its sovereign immunity to harm caused by its drunk serviceman-employee. Though that immunity normally remains where an employee acts intentionally, “the negligence of [the corpsmen] who allowed a foreseeable assault and battery to occur may furnish a basis for Government liability that is entirely independent of [the drunk serviceman’s] employment status.” Id. at 401, 108 S.Ct. 2449 (emphases added). Naval-base regulations about firearm safety and the corpsmen’s decision to take the drunk serviceman into their care were two specific sources of the Government’s independent negligence. Id. at 401, 108 S.Ct. 2449. To allow someone in the serviceman’s condition, armed with a rifle, out of the corpsmen’s care courted foreseeable trouble. Thus, the Government had waived its sovereign immunity and the plaintiffs’ case could go forward. Id. at 403, 108 S.Ct. 2449. Sheridan effectively represents an exception to an exception to an exception to a general rule. The general rule is sovereign immunity: the Government cannot be sued. The FTCA creates an exception to that rule by waiving sovereign immunity. That waiver of sovereign immunity comes with conditions (such as the scope-of-employment requirement of § 1346(b)(1)) and exceptions (such as the assault-and-battery exception of § 2680(h)). But Sheridan established that claims of independent negligence committed by Government employees are not barred by the assault-and-battery exception. Subrogees’ claims in this case, however, do not fall under the holding of Sheridan. To begin, the harm here was not foresee able. To repeat, the eorpsmen in Sheridan knew danger lurked if they allowed a drunk serviceman with a loaded rifle to leave hospital grounds. But in our case Lewis knew of no obvious danger in taking in a recruit who had passed background checks. And Lewis’s supervisor (Albrecht) likewise knew of no obvious danger that Lewis would defy his order that Lewis not take Armstrong into Lewis’s home. Moreover, Subrogees’ claims with regard to Albrecht’s conduct are not “entirely independent” of" }, { "docid": "23180737", "title": "", "text": "committed an intentional tort. Claims stemming from intentional torts generally are excluded from the Government’s waiver of sovereign immunity under 28 U.S.C. § 2680(h). It states that § 1346(b)(l)’s waiver of sovereign immunity does not apply to “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights,” with certain exceptions for investigative or law enforcement officers. The Government cannot take advantage of this so-called “assault and battery exception” to its waiver of sovereign immunity in our case because “the exception only applies in cases arising out of assaults by federal employees.” Sheridan, 487 U.S. at 400, 108 S.Ct. 2449 (citing Panella v. United States, 216 F.2d 622 (2d Cir.1954) (Harlan, J.)). Armstrong, the assailant in our case, was an Army recruit but does not qualify as a government employee. Because the plaintiffs in Sheridan sought to sue for the Government’s negligence in “fail[ing] to prevent [the serviceman’s] use of a rifle,” id. at 395, 108 S.Ct. 2449, and not alerting other security authorities, the Court held that the intentional tort bar to waivers of sovereign immunity did not apply, id. at 403, 108 S.Ct. 2449. The Government there was deemed to have waived its sovereign immunity to harm caused by its drunk serviceman-employee. Though that immunity normally remains where an employee acts intentionally, “the negligence of [the corpsmen] who allowed a foreseeable assault and battery to occur may furnish a basis for Government liability that is entirely independent of [the drunk serviceman’s] employment status.” Id. at 401, 108 S.Ct. 2449 (emphases added). Naval-base regulations about firearm safety and the corpsmen’s decision to take the drunk serviceman into their care were two specific sources of the Government’s independent negligence. Id. at 401, 108 S.Ct. 2449. To allow someone in the serviceman’s condition, armed with a rifle, out of the corpsmen’s care courted foreseeable trouble. Thus, the Government had waived its sovereign immunity and the plaintiffs’ case could go forward. Id. at 403, 108 S.Ct. 2449. Sheridan effectively represents an exception to an exception to an exception" }, { "docid": "6232565", "title": "", "text": "the ground that Guccione had failed to bring his action within the applicable two-year limitations period. Judge Motley found that plaintiff’s claim was not first presented until November 28, 1984, or at the earliest July 18, 1984, but had accrued no later than March 1982. Judge Motley rejected Guccione’s contention that he did not have notice of the defamatory conduct underlying his claim until the release of the Senate Report, supra n. 2. Discussion Under the FTCA, the Government has waived immunity from suit for claims of property damage or personal injury caused by the “negligent or wrongful act or omission” of its employees “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). Section 2680(h) of the FTCA, the so-called intentional tort exception, excludes from this limited waiver of sovereign immunity “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” The task of maintaining the FTCA’s jurisdictional boundary has been more difficult in practice than is suggested by the statute’s facially neat distinction between claims sounding in negligence and those “arising out of” the enumerated intentional torts. Difficulty has arisen primarily in situations in which intentionally inflicted harm may have occurred in significant part because of the negligence of Government personnel. Appellant contends that this is such a case, and that his “negligent supervision” claim is actionable notwithstanding the apparent applicability of section 2680(h) to Weinberg’s conduct. Appellant’s claim initially encounters a rather inhospitable line of cases broadly interpreting the scope of section 2680(h) in the context of “mixed” claims of negligence and intentional tort. United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), was an action brought by the survivor of a serviceman who, while off duty and away from his base, had been kidnapped and murdered by another serviceman. The suit alleged that the Army knew of the assailant’s dangerousness and negligently" }, { "docid": "5075789", "title": "", "text": "(discretionary function) and § 2680(h) (intentional tort). The Court will address these contentions separately. Intentional Tort Defense The defendant contends that it cannot be liable under the FTCA because the plaintiffs’ claims necessarily arise out of a clam for battery. Section 2680(h) of Title 28 of the United States Code provides that sovereign immunity is not waived for “any claim arising out of assault, battery” or other enumerated intentional torts. Thus, the issue before the Court is whether the plaintiffs’ claims arise out of Beekelic’s battery upon the plaintiffs. The defendant’s argument misinterprets the plaintiffs’ claims. The plaintiffs seek recovery, not for Beckelic’s intentional acts, but for the defendant’s breach of the duty of care it owed the plaintiffs. This case is not so much about what Beckelic did, as it is about what the defendant failed to do. The Court, upon consideration of all the evidence, finds that the defendant faded to exercise reasonable care in its decision to assign Beckelic to the nursery; the defendant failed to adhere to its own regulations regarding quality assurance and documentation; the defendant failed to adhere to its own regulations regarding supervision in the nursery; the defendant failed to identify the cause of the plaintiffs’ injuries and take steps to prevent recurrence thereof; and the defendant ignored both direct and indirect warnings about Beekelic’s unsuitability for placement in the nursery. This type of claim is not excepted from the waiver of sovereign immunity found in 28 U.S.C. § 1346(b). See Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988); United States v. Muniz, 374 U.S. 150, 88 S.Ct. 1850, 10 L.Ed.2d 805-(1963). In Sheridan, the Supreme Court was faced with this same issue in a case factually analogous to the instant case. In Sheridan, three naval corpsmen found a naval medical aide “lying face down in a drunken stupor on the concrete floor of a hospital building.” 487 U.S. at 395, 108 S.Ct. at 2452. The corpsmen initially tried to get the aide to the emergency room, but fled when the aide resisted and it was revealed" }, { "docid": "8467137", "title": "", "text": "that is independent of its relationship, if any, to the perpetrator, § 2680(h) does not bar recovery under the FTCA. Sheridan v. United States, 487 U.S. 392, 400-03, 108 S.Ct. 2449, 2454-56, 101 L.Ed.2d 352 (1988) (government liable for naval corpsmen’s negligent execution of assumed responsibility over intoxicated, armed individual encountered in naval hospital, even though latter also happened to be corpsman and plaintiffs injury was result of his intentional tort); see also Bembenista v. United States, 866 F.2d 493, 497-98 (D.C.Cir.1989) (following Sheridan). With this important qualification, the Shearer plurality’s general analysis of § 2680(h) appears to remain the prevailing view. See Westcott v. City of Omaha, 901 F.2d 1486, 1489-90 (8th Cir.1990); see, e.g., Kugel v. United States, 947 F.2d 1504, 1507 (D.C.Cir.1991); see also Sandoval v. United States, 980 F.2d 1057, 1058-59 (5th Cir.1993). Here, the government would have no potential liability if not for the fact that those responsible for the intentionally tortious medical care alleged in the complaint were VA employees. Indeed, the “negligent” pre-surgical conduct complained of in the pretrial order is part and parcel of the very battery claim that has implicated § 2680(h) from the outset. Consequently, the distinction drawn in Sheridan does not alter our conclusion, under the Shearer approach previously adopted by this circuit in Hoot, that this case falls within the scope of § 2680(h). One last matter raised by the pretrial order should be addressed briefly. The order includes two allegations of institutional-type negligence that might implicate, on a more general level, the direct responsibility of the VA hospital itself: “(i) Defendant owed a duty to [plaintiffs] to follow its procedure regarding consent,” and “(j) Defendant is guilty of negligence for its failure to follow its own procedures regarding consent.” Aplt. Addendum Vol. I, tab 2, at 4. Beyond these vague and conclusory allegations of negligence, however, the pretrial order fails to specify what the pertinent procedures were, why their nonobservance was material, and how all this related to Mr. Franklin’s death. Negligence standing alone, without causal connection to cognizable injury, is not actionable. Key v. Liquid Energy" }, { "docid": "8467136", "title": "", "text": "like [plaintiffs] that sound in negligence but stem from a battery committed by a Government employee. 473 U.S. at 54-55, 105 S.Ct. at 3039; see, e.g., Hoot v. United States, 790 F.2d 836, 838-39 (10th Cir.1986); Guccione v. United States, 847 F.2d 1031, 1034 (2d Cir.1988) (noting cases from other circuits), cert. denied, 493 U.S. 1020, 110 S.Ct. 719, 107 L.Ed.2d 739 (1990). In Shearer’s terms, the argument advanced to avoid § 2680(h) in the present case should be rejected as an ineffective attempt to recast a battery claim (surgery without competent consent) as a negligent failure to prevent the battery (by not ensuring that a competent consent was obtained). Since Shearer, however, the Supreme Court has recognized one category of battery-related cases that falls outside the preclusive compass of § 2680(h). Specifically, when a negligence claim against the government arises out of an incident of battery but is in no way contingent on the perpetrator’s federal employment status, i.e., when the government’s liability is based on its breach of a duty owed the victim that is independent of its relationship, if any, to the perpetrator, § 2680(h) does not bar recovery under the FTCA. Sheridan v. United States, 487 U.S. 392, 400-03, 108 S.Ct. 2449, 2454-56, 101 L.Ed.2d 352 (1988) (government liable for naval corpsmen’s negligent execution of assumed responsibility over intoxicated, armed individual encountered in naval hospital, even though latter also happened to be corpsman and plaintiffs injury was result of his intentional tort); see also Bembenista v. United States, 866 F.2d 493, 497-98 (D.C.Cir.1989) (following Sheridan). With this important qualification, the Shearer plurality’s general analysis of § 2680(h) appears to remain the prevailing view. See Westcott v. City of Omaha, 901 F.2d 1486, 1489-90 (8th Cir.1990); see, e.g., Kugel v. United States, 947 F.2d 1504, 1507 (D.C.Cir.1991); see also Sandoval v. United States, 980 F.2d 1057, 1058-59 (5th Cir.1993). Here, the government would have no potential liability if not for the fact that those responsible for the intentionally tortious medical care alleged in the complaint were VA employees. Indeed, the “negligent” pre-surgical conduct complained of in the" }, { "docid": "4727874", "title": "", "text": "the sexual assaults and batteries allegedly perpetrated upon the Plaintiffs by Naval officers at the 1990 and 1991 Tailhook Conventions. The United States argues that Plaintiffs are precluded from recovering under such a theory because the United States has not waived its sovereign immunity for acts arising out of assault and battery. See 28 U.S.C. § 2680(h). The Supreme Court has summarized the extent to which the United States has waived its sovereign immunity by virtue of enacting the FTCA as follows: The FTCA gives federal district courts jurisdiction over claims against the United States for jnoney damages “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Sheridan v. United States, 487 U.S. 392, 398, 108 S.Ct. 2449, 2454, 101 L.Ed.2d 352 (1988) (quoting 28 U.S.C. § 1346(b)). The Court further noted, however, that this broad jurisdictional grant' “ ‘shall not apply to ... [a]ny claim arising out of assault, battery’ or other specified intentional torts.” Id. (quoting 28 U.S.C. § 2680(h)). Plaintiffs’ First Cause of Action clearly seeks to impose direct liability upon the United States for the sexual assaults and batteries allegedly perpetrated by Naval officers at the Convention social events. Because the actions for which Plaintiffs seek damages are included within a category of intentional torts that have been specifically exempted from the FTCA’s jurisdictional grant, this Court lacks subject matter jurisdiction over them. Therefore, Plaintiffs’ First Cause of Action must be dismissed. 2. Defendant United States’ Motion to Dismiss Plaintiffs’ Second Cause of Action. In their Second Cause of Action, Plaintiffs seek to impose liability upon the United States for negligence. The United States argues that this cause of action is also precluded by the assault and battery exception, 28 U.S.C. § 2680(h), or alternatively, that Plaintiffs cannot establish" }, { "docid": "11402480", "title": "", "text": "is not for the purpose of learning new information about Pernell that the Army would have had no reason to know or undisputedly did not know prior to Pernell’s rape of Durden. Per-nell’s affidavit does not state that he com mitted any prior crimes that should have put the Army on notice that he was a serial offender, and Durden does not dispute the government’s claim that it was only after Pernell raped Durden and gave a DNA sample that Pernell was linked to the 2008 and 2009 burglaries and sexual assaults in Fayetteville. Thus, although Durden’s claim that relevant evidence is “held exclusively within the walls of the defendant” might be true with respect to what the Army knew about Pernell prior to the rape, Durden has not put forth any facts or information about Pernell that she believes that the Army knew in the first instance and that she would know by way of Pernell. Accordingly, discovery would serve no purpose, and it was not error for the district court to reach the merits of Durden’s claim at this stage of the litigation. III. As an alternative basis for dismissing Durden’s complaint, the district court held that the fact that the Army gained knowledge of Pernell’s allegedly violent propensity via his government employment was enough to nullify Durden’s claims pursuant to the FTCA’s intentional-tort exception. The district court overstated the exception’s reach, however, .and therefore we conclude that the district court erred in dismissing Durden’s complaint on this alternative basis. The FTCA carves out an exception to its own general waiver of immunity that bars recovery for “[a]ny claim arising out of assault[ ][or] battery.” 28 U.S.C. § 2680(h). The Supreme Court defined the scope of the intentional-tort exception in Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988). In Sheridan, three naval corpsmen encountered the tortfeasor, also a naval employee, in a drunken stupor in the hallway of a naval hospital. Id. at 394-95, 108 S.Ct. 2449. The corpsmen “attempted to take [the tortfeasor] to the emergency room, but he broke away," }, { "docid": "23180735", "title": "", "text": "be within the scope of employment, all three factors must be satisfied. Because the first and second factors are not close to being met here, we agree with the District Court’s holding. As a result, Lewis’s decision to bring Armstrong into his home temporarily does not fit within the scope of employment needed to invoke the Government’s waiver of sovereign immunity. The District Court properly concluded that it lacked jurisdiction over Subrogees’ claims with respect to Lewis’s actions. B. Albrecht’s and the Army’s Actions Do Not Fit Within the FTCA’s Waiver of Sovereign Immunity Subrogees also argue that regardless whether Lewis’s conduct was within the scope of his employment, the Government may be held independently liable for its alleged acts of negligence. They contend that the Army did not train Lewis adequately; pressured recruiters like Lewis to meet recruiting goals, endangering society at large in the process; did not conduct a sufficient background check of Armstrong; and, acting through Albrecht, failed to follow up in enforcing its regulations prohibiting recruiters from giving lodging to recruits. We begin with the last claim first. 1. Albrecht Subrogees’ claim about failing to enforce regulations centers on the interaction between Albrecht and Lewis. Subro-gees contend that Albrecht’s admonition to Lewis was not enough. As Lewis’s supervisor, they argue, Albrecht had a duty to follow up with Lewis and ensure that he did not allow Armstrong to stay at his home. Albrecht’s omission, in their view, constituted negligent supervision of his subordinate, Lewis. In support of their argument, Subrogees cite Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988). In that case, an off-duty and very drunk serviceman left the Bethesda Naval Hospital with a rifle and ammunition. Prior to leaving the hospital he fought with three other Naval corpsmen who unsuccessfully tried to subdue him. After the serviceman fled, the corpsmen never alerted authorities that a drunken serviceman was wandering about with a rifle. The serviceman then fired shots at a car, injuring a passenger inside it. Id. at 395, 108 S.Ct. 2449. The Government argued the serviceman had" } ]

[ { "docid": "22089618", "title": "", "text": "of their conduct.” Houston v. Reich, 932 F.2d 883, 887 (10th Cir.1991); see also Duncan v. Gunter, 15 F.3d 989, 991-92 (10th Cir.1994) (“The Eleventh Amendment does not bar [individual-capacity suits] because state officers may be personally liable for their unconstitutional acts.”). Accordingly, the district court’s Eleventh Amendment dismissal of Whitney’s discrimination suit against Patrick in his individual capacity was error. In addition to dismissing Whitney’s discrimination claims, the district court also dismissed her § 1983 harassment and defamation claims against Patrick. This court has held that a district court may dismiss sua sponte a pro se complaint for failure to state a claim. McKinney v. Oklahoma, 925 F.2d 363, 365 (10th Cir.1991). Such a dismissal is appropriate only where it is “ ‘patently obvious’ that the plaintiff could not prevail on the facts alleged, and allowing [her] an opportunity to amend [her] complaint would be futile.” Id. (citation omitted); see also Hall v. Bellmon, 935 F.2d 1106, 1110 n. 3 (10th Cir.1991) (“[P]ro se litigants are to be given reasonable opportunity to remedy the defects in their pleadings.”). Nevertheless, when the “plaintiff is proceeding pro se, we must construe [her] pleadings liberally,” applying a less stringent standard than is applicable to pleadings filed by lawyers. Gagan v. Norton, 35 F.3d 1473, 1474 n. 1 (10th Cir.1994), cert. denied, 513 U.S. 1183, 115 S.Ct. 1175, 130 L.Ed.2d 1128 (1995). This court, however, will not supply additional factual allegations to round out a plaintiffs complaint or construct a legal theory on a plaintiffs behalf. Hall, 935 F.2d at 1110. With these precepts in mind, we conclude that the district court erred in dismissing Whitney’s harassment claim against Patrick. Citing this court’s opinion in Noland v. McAdoo, 39 F.3d 269, 271 (10th Cir.1994), the district court recognized: “An allegation of sexual harassment is actionable under § 1983 as a violation of the Equal Protection Clause____ [HJowever, ... in order to establish the state action necessary to support a § 1983 claim, defendant ... had to be plaintiffs supervisor or in some other way exercise state authority over her.” Nevertheless, the district court" } ]

[ { "docid": "19190028", "title": "", "text": "notice of the charges filed against him as required by prison policy and to afford Plaintiff the opportunity to consult an attorney. At the November 20, 1992 disciplinary hearing, DOC officials found Plaintiff guilty of disobeying a lawful order and ordered Plaintiff to serve ten days in punitive segregation and assessed eighteen days loss of good time credits. On February 3, 1993, Plaintiff filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 in district court. Count I of the complaint alleged that prison officials violated Plaintiffs Fourth, Fifth, and Sixth Amendment rights when they requested that he submit to a urinalysis. Count II of the complaint alleged prison officials violated Plaintiffs due process rights by failing to provide Plaintiff with a notice of charges twenty-four hours prior to his disciplinary hearing. Defendants moved to dismiss Count I and moved for summary judgment as to Count II. The district court adopting the magistrate’s findings and recommendations, granted Defendants’ motions for dismissal and summary judgment, and this appeal followed. I. Plaintiff contends the district court erred in dismissing Count I of his complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. The sufficiency of a complaint is a question of law which we review de novo. Morgan v. City of Rawlins, 792 F.2d 975, 978 (10th Cir.1986). In reviewing the dismissal of a pro se litigant’s complaint under Fed. R.Civ.P. 12(b)(6), we liberally construe the plaintiffs pleadings, presume all of plaintiffs well-pleaded factual allegations are true, and view the allegations in the light most favorable to the plaintiff. Hall v. Bellmon, 935 F.2d 1106, 1109-10 (10th Cir.1991). When a complaint alleges a constitutional claim under § 1983, the constitutional claim “should not be dismissed unless it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief.” Dunn v. White, 880 F.2d 1188, 1190 (10th Cir.1989) (quoting Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir.1988)), cert. denied, 493 U.S. 1059, 110 S.Ct. 871, 107 L.Ed.2d 954 (1990)." }, { "docid": "23018215", "title": "", "text": "district court has the discretion to dismiss a case with prejudice for the failure to comply with the rules of civil procedure or the court’s orders, the court does not exercise its discretion soundly unless it first considers certain criteria — specifically, “ ‘(1) the degree of actual prejudice to the defendant; (2) the amount of interference with the judicial process; (3) the culpability of the litigant; (4) whether the court warned the party in advance that dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of lesser sanctions.’ ” Id. (quoting Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir. 2003)). In this case, there is no indication that the district court considered any of these factors before dismissing both the original and the amended complaint. Furthermore, as in Nasious, these factors do not all weigh in favor of dismissal, and we see no basis for affirming the court’s decision based on our own independent assessment of these criteria on appeal. See id. at 1162-63. Finally, the district court concluded that Plaintiffs motion to file a late amended complaint should be denied because the claims he sought to add lacked merit. Although we generally review for abuse of discretion a district court’s denial of leave to amend a complaint, when this “denial is based on a determination that amendment would be futile, our review for abuse of discretion includes de novo review of the legal basis for the finding of futility.” Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Schs., 565 F.3d 1232, 1250 (10th Cir.2009). We thus consider de novo whether “it is ‘patently obvious’ that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). We likewise review de novo a district court’s conclusion that a complaint should be dismissed because it fails to state a claim upon which relief may be granted. See Jojola v. Chavez, 55 F.3d 488, 490 (10th Cir.1995). In his amended complaint, Plaintiff" }, { "docid": "22108028", "title": "", "text": "for example, he complains that officials have enacted a property policy that discriminates against indigent prisoners. But he fails to identify the policy or describe it well enough to convey the basis for his claim. Other paragraphs complain of actions taken as the result of discrimination, but he fails to explain the ground for the alleged discrimination. 3. Dismissal With Prejudice Without Opportunity to Amend The district court dismissed the entire complaint with prejudice. But “dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.” Oxendine, 241 F.3d at 1275 (brackets and internal quotation marks omitted). “[T]he plaintiff whose factual allegations are close to stating a claim but are missing some important element that may not have occurred to him, should be allowed to amend his complaint.” Hall, 935 F.2d at 1110. There is no indication that the district court considered allowing Mr. Gee to amend his complaint with regard to any of his allegations. True, only a few of the complaint’s 154 paragraphs state plausible claims for relief under Twombly and Iqbal. The district court, however, should have afforded Mr. Gee the opportunity to amend his complaint before dismissing every claim with prejudice. On remand, the district court shall allow Mr. Gee an opportunity to seek leave to file an amended complaint that satisfies Tivombly and Iqbal, except for those claims that are barred by preclusion or the statute of limitations so that amending those claims would be futile. See Iqbal, 129 S.Ct. at 1954 (remanding for the court of appeals to determine whether to remand to the district court so the plaintiff could seek leave to amend his complaint). III. CONCLUSION The dismissal with prejudice of paragraphs 115-18 and 120, which are subject to claim preclusion, and paragraphs 3-6, 65-68, and 103-107, which are time-barred, is AFFIRMED. Thus, the dismissal of Defendants Lenny Stillwell and S. Kelley, who are named only in the precluded claims, is" }, { "docid": "11160046", "title": "", "text": "dismissal decision was premature because the district court granted defendants’ motion to dismiss before her deadline to file a motion to remand to state court and before her response period expired. She also complains that the district court granted judgment for some defendants sua sponte, it did not give her the opportunity to amend, and it dismissed her claims with prejudice. We see no reversible error. First, Ms. Knight was not prejudiced by the court’s taking action before she could move to remand, because such a motion would have failed. Second, although we disfavor (1) sua sponte dismissals and (2) dismissals before the losing party has an opportunity to respond, this court has held that such a “dismissal under Rule 12(b)(6) is not reversible error when it is patently obvious that the plaintiff could not prevail on the facts alleged and allowing [her] an opportunity to amend [her] complaint would be futile.” McKinney v. Okla. Dep’t of Human Servs., 925 F.2d 363, 365 (10th Cir.1991) (citation and internal quotation marks omitted). Similarly, even though pro se parties generally should be given leave to amend, it is appropriate to dismiss without allowing amendment “where it is obvious that the plaintiff cannot prevail on the facts [s]he has alleged and it would be futile to give [her] an opportunity to amend.” Gee, 627 F.3d at 1195 (internal quotation marks omitted). And finally, “[a] dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile,” Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir.2006); see also Gee, 627 F.3d at 1181, 1195 (affirming dismissal with prejudice of claims barred by statute of limitations and claim preclusion). For the reasons discussed, it is patently obvious that Ms. Knight cannot proceed with her claims, and any further opportunity to amend would be futile because her claims would still be barred. Therefore, the district court did not err in dismissing claims sua sponte, in dismissing without affording Ms. Knight an opportunity to amend, or in dismissing the claims with prejudice. Finally," }, { "docid": "22452026", "title": "", "text": "in a future action. Kasap v. Folger Nolan Fleming & Douglas, Inc., 166 F.3d 1243, 1248 (D.C.Cir.1999) (stating dismissal without prejudice on jurisdictional issue precludes relitigation of that issue but not refiling of complaint). The preclusive effect, however, is one of issue preclusion (collateral estoppel) rather than claim preclusion (res judicata). Otherwise stated, the district court’s standing ruling precludes Mr. Brereton from relitigating the standing issue on the facts presented, but does not preclude his claim about the validity of the ordinance. See Matosantos Comm’l Corp. v. Applebee’s Int’l, Inc., 245 F.3d 1203, 1209-10 (10th Cir.2001). We turn, finally, to another aspect of the district court’s decision in this case that may reflect some confusion about this area of the law. Federal Rule of Civil Procedure Rule 15(a) provides that leave to amend a party’s complaint “shall be freely given when justice so requires.” Our case law establishes a limitation to this principle: the district court may dismiss without granting leave to amend when it would be futile to allow the plaintiff an opportunity to amend his complaint. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Where a complaint fails to state a claim, and no amendment could cure the defect, a dismissal sua sponte may be appropriate. Curley v. Perry, 246 F.3d 1278, 1281-82 (10th Cir.2001). If such a dismissal operates on the merits of the complaint, it will also ordinarily be entered with prejudice. See id. at 1282. The district court apparently concluded, relying on this line of cases, that dismissal with prejudice was appropriate here because any attempt by Mr. Brereton to amend his complaint to allege standing would be futile. Aplt.App. at 107-08. It thus applied the futility concept to convert a dismissal that should have been without prejudice into one with prejudice. A dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile. Grossman v. Novell, Inc., 120 F.3d 1112, 1126 (10th Cir.1997). It is important to realize, however, that denial of leave to amend and dismissal with prejudice are" }, { "docid": "16824118", "title": "", "text": "local rule. See E.D. Okla. LCvR 7.1(o). The court did not abuse its discretion in denying the motion to amend for failure to comply with local rules. See Lambertsen v. Utah Dep’t of Corr., 79 F.3d 1024, 1029-30 (10th Cir.1996). We AFFIRM the grant of Defendant Williams’s motion to dismiss, AFFIRM the denial of Plaintiffs motion to amend, and REVERSE the district court’s grant of the motion to dismiss by Defendants Orman, Workman, and Morton. We GRANT appellant’s motion to proceed without prepayment of fees and remind appellant that he is obligated to continue to make partial payments until the filing fee is paid in full. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1. . Randall Workman, the current warden of OSP, has been automatically substituted for Mr. Sirmons as the correct party under Federal Rule of Civil Procedure 25(d). . “A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). If the district court “can reasonably read the pleadings to state a valid claim,” the court should excuse such deficiencies as “the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Id. \"In addition, pro se litigants are to be given reasonable opportunity to remedy the defects in their pleadings.” Id. at 1110 n. 3. Nonetheless, the district court need not “assume the role of advocate for the pro se litigant” nor relieve the pro se plaintiff of his basic obligation to provide sufficient facts on which to base a claim. Id. atlllO. . Allhough Mr. Barrett’s prison grievances focused on violations of prison regulations and not constitutional claims, Defendants have not asserted the affirmative defense of non-exhaustion. Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct." }, { "docid": "23018216", "title": "", "text": "court concluded that Plaintiffs motion to file a late amended complaint should be denied because the claims he sought to add lacked merit. Although we generally review for abuse of discretion a district court’s denial of leave to amend a complaint, when this “denial is based on a determination that amendment would be futile, our review for abuse of discretion includes de novo review of the legal basis for the finding of futility.” Miller ex rel. S.M. v. Bd. of Educ. of Albuquerque Pub. Schs., 565 F.3d 1232, 1250 (10th Cir.2009). We thus consider de novo whether “it is ‘patently obvious’ that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). We likewise review de novo a district court’s conclusion that a complaint should be dismissed because it fails to state a claim upon which relief may be granted. See Jojola v. Chavez, 55 F.3d 488, 490 (10th Cir.1995). In his amended complaint, Plaintiff sought to raise two claims: false imprisonment and denial of access to the courts. As for the false imprisonment claim, the district court concluded that this claim lacked merit because Plaintiff had not invalidated his imprisonment and thus could not recover damages under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), which generally prohibits an individual from recovering damages in a civil rights action for an allegedly unlawful confinement where there has not been a favorable termination of the criminal action on appeal or in a collateral action. Plaintiff argues, however, that Heck should not bar this action because Plaintiff has no available habeas remedy. Indeed, Plaintiff in fact sought to invalidate his imprisonment through a 28 U.S.C. § 2241 petition but was prevented by his transfer out of Immigration and Customs Enforcement custody, which mooted his habeas claims. See Cohen Ma v. Hunt, 372 Fed.Appx. 850 (10th Cir.2010). Under these circumstances, Plaintiff argues, his false imprisonment claim should not be barred by his failure to obtain relief in habeas." }, { "docid": "22188835", "title": "", "text": "Curley challenges both the district court’s dismissal decision on the merits and the constitutionality of the court’s procedure in sua sponte dismissal. We address the merits first because we need to address the constitutional procedural challenge only if we affirm on the merits the dismissal under § 1915(e)(2) and Rule 12(b)(6). DISCUSSION The district court had jurisdiction under 28 U.S.C. § 1381. We have jurisdiction under 28 U.S.C. § 1291. I. Failure to state a claim We review de novo the district court’s decision to dismiss a complaint under § 1915(e)(2) for failure to state a claim. See Perkins v. Kansas Dep’t of Corrections, 165 F.3d 803, 806 (10th Cir.1999). We must accept the allegations of the complaint as true and view them in the light most favorable to the plaintiff. See id. We further construe a pro se complaint liberally. See id. “Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.” Id. Similarly, dismissal under Rule 12(b)(6) without affording the plaintiff notice or an opportuni ty to amend is proper only “when it is ‘patently obvious’ that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Like the district court in this case, we construe Curley’s complaint as asserting a violation of the Eighth Amendment. He argues that the prison officials created unconstitutional conditions of confinement by failing to prevent or monitor inmate-to-inmate correspondence, which is an alleged mechanism that inmates use to plan violence against other inmates. A prison official’s failure to prevent harm “violates the Eighth Amendment only when two requirements are met.” Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). First, the prison official’s act or omission must be “objectively, sufficiently serious” and “result in the denial of the minimal civilized measure of life’s necessities ...." }, { "docid": "22188839", "title": "", "text": "825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Because no amendment could cure this defect, it was appropriate for the district court to dismiss the complaint with prejudice. We therefore affirm the district court’s decision dismissing Curley’s complaint for failure to state a claim. II. Constitutionality of sua sponte dismissal under Rule 12(b)(6) and § 1915(e)(2) Curley argues that the district court violated his Fifth Amendment rights to due process and equal protection of the laws by dismissing his complaint without providing notice or an opportunity to amend it. We review this constitutional question de novo. See White v. Colorado, 157 F.3d 1226, 1232 (10th Cir.1998) (constitutionality of a federal statute). A. Due Process At our request, the parties have briefed the constitutionality of sua sponte dismissal under § 1915(e)(2)(B)(ii) without notice or opportunity to amend. Upon further review, we conclude that Curley’s original constitutional claim is broad enough to encompass a similar challenge to the constitutionality of sua sponte dismissal under Rule 12(b)(6) without notice or an opportunity to amend. For the purposes of the Due Process Clause, the standard for dismissal for failure to state a claim is essentially the same under both provisions. Compare Perkins, 165 F.3d at 806 (“Dismissal of a pro se complaint for failure to state a claim [under § 1915(e)(2)(B)(ii) ] is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend,” (emphasis added)), with Hall, 935 F.2d at 1109-10 (“Although dismissals under Rule 12(b)(6) typically follow a motion to dismiss, giving plaintiff notice and opportunity to amend his complaint, a court may dismiss sua sponte when it is patently obvious that the plaintiff could not prevail on the facts alleged,, and alloiving him an opportunity to amend his complaint 'would be futile.” (quotation marks omitted) (emphasis added)). We therefore find it appropriate to address the constitutionality of both procedures employed by the district court in this case. Curley argues that the .dismissal in his case violated his due process rights by infringing on" }, { "docid": "3956165", "title": "", "text": "sovereign immunity. See United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976). Finally, relying on Fed.R.Civ.P. 12(b)(5), the district court dismissed the defendant bankruptcy trustee (Mr. Wa-beke) because plaintiffs attempted to serve the summons and complaint by leaving a copy with a secretary at the trustee’s law firm. See Fed.R.Civ.P. 4(d)(1); Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1987); Pollack v. Meese, 737 F.Supp. 663, 666-67 (D.D.C.1990). All dismissals were with prejudice. Liberal construction is accorded the pro se pleadings in this case. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972); Jaxon v. Circle K Corp., 773 F.2d 1138, 1140 (10th Cir.1985); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). In reviewing a district court’s decision on a motion to dismiss for failure to state a claim, the allegations of the complaint are accepted as true and dismissal of the complaint is warranted “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). Applying these standards, the district court’s dismissal of the complaint, insofar as it seeks money damages, against the judicial and governmental defendants is affirmed based on absolute judicial and sovereign immunity. Although plaintiffs also sought to have the entire bankruptcy code declared unconstitutional, the complaint lacks any legal or factual specificity which would allow us reasonably to read the pleadings as stating a recognized claim, despite the plaintiffs’ nonlawyer status. See Hall, 935 F.2d at 1109-10. Thus, insofar as the complaint seeks declaratory and injunctive relief, the dismissal of the complaint is affirmed. The district court’s dismissal with prejudice of the trustee is slightly more complex. The general rule is that “when a court finds that service is insufficient but curable, it generally should quash the service and give the plaintiff an opportunity to re-serve the defendant.” Pell v. Azar Nut Co., 711 F.2d 949, 950 n. 2 (10th Cir.1983)." }, { "docid": "22464032", "title": "", "text": "Pro Se Prisoner Complaints As we recently expounded in Hall v. Bellmon, 935 F.2d 1106, 1108-11 (10th Cir. 1991), there are three common pretrial points at which a district court may dispose of a pro se complaint such as Mr. Northing-ton’s. First, the court may dismiss the complaint as patently “frivolous or malicious” under 28 U.S.C. § 1915(d). Id. at 1108-09. See Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A claim is “frivolous” or “malicious” if it “is based on an “indisputably meritless legal theory.” Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. The § 1915(d) “frivolous” or “malicious” standard allows the district court to “pierce the veil of the complaint’s factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Id. “Clearly baseless factual allegations are those that are ‘fantastic’ or ‘delusional.’ ” Hall, 935 F.2d at 1109 (quoting Neitzke, 490 U.S. at 327-28, 109 S.Ct. at 1833). In making this determination, the district court is to weigh the allegations in favor of the in forma pauper-is plaintiff. Denton v. Hernandez, — U.S. -, -, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992). And we review for an abuse of discretion. Id. at-, 112 S.Ct. at 1734. Second, a district court may dismiss a pro se complaint under Rule 12(b)(6) for failure to state a claim. Under this rule, the complaint should 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.' ” Id. (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). The district court must construe a pro se plaintiffs complaint liberally under this standard. Haines v. Ker-ner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972). Nevertheless, the court should not assume the role of advocate, and should dismiss claims which are supported only by vague and conclusory allegations. Hall, 935 F.2d at 1110. Third, the district court may grant summary judgment under Fed.R.Civ.P. 56(c) “if the pleadings," }, { "docid": "1062077", "title": "", "text": "BRORBY, Circuit Judge. Plaintiff, Joe Martinez, an inmate at the Utah State Prison, appeals from an order of the district court dismissing his pro se, 42 U.S.C. § 1983 complaint for failure to state a claim on which relief may be granted. For the reasons below, we reverse the order and remand the case for further proceedings. THE COMPLAINT According to the allegations in the complaint, Mr. Martinez has a cyst on his left testicle and epididymis of his right testicle. He claims that these conditions were diagnosed by a physician in June 2002, and he was told that if his symptoms did not resolve themselves within a month, he would need surgery. Mr. Martinez alleges that his condition never improved and that defendants failed to provide the required surgery at either the prison or an outside facility. He alleges that he is in constant pain as a result of the failure to treat him. As to the failure to provide medical treatment, Mr. Martinez claims that defendants have told him that “there is nothing they can do for [his] condition because he has missed medical appointments.” R. I., doc. 7 at 3-4. He alleges that he has “not been informed of the medical appointments,” and that he is “required to rely upon the staff at the Department of Corrections” to schedule and “arrange transportation” for his appointments. Id. at 4. His § 1983 complaint, which was filed following exhaustion of his administrative remedies, seeks redress for violation of his Eighth Amendment right against cruel and unusual punishment, including compensatory and punitive damages and an order directing defendants to provide the prescribed medical care. THE STANDARD OP REVIEW This court reviews a decision to dismiss for failure to state a claim de novo, and “[djismissal of a pro se complaint ... is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.” Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002) (quotation omitted). In addition to construing a pro se" }, { "docid": "22464660", "title": "", "text": "the Defendants, as required to support a Bivens action, and had instead alleged facts that, at most, constituted negligence, which is not cognizable under Bivens. Oxendine filed a timely notice of appeal of the district court’s decision, and now argues that the district court improperly concluded that Defendants’ conduct did not rise to the level of a constitutional violation. STANDARD OF REVIEW We have stated that “[dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend.” Perkins v. Kansas Dep’t of Corrections, 165 F.3d 803, 806 (10th Cir.1999). In addition, “we must liberally construe the allegations of a pro se complaint.” Id. Finally, we note that, in deciding a motion to dismiss pursuant to Rule 12(b)(6), a court may look both to the complaint itself and to any documents attached as exhibits to the complaint. See Fed.R.Civ.P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes”); Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir.1991) (“A written document that is attached to the complaint as an exhibit is considered part of the complaint and may be considered in a Rule 12(b)(6) dismissal”) DISCUSSION Reviewing the district court’s decision to dismiss Oxendine’s complaint for failure to state a claim de novo, see Sutton v. Utah State School for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999), we find that Oxendine’s complaint presents facts which, if true, could entitle him to relief under Bivens. We must therefore reverse the district court’s judgment dismissing Oxendine’s complaint for failure to state a claim. Although Oxendine references the Due Process Clauses of the Fifth and Fourteen Amendments and argues that he was denied his “due process rights to adequate medical treatment,” his complaint is more accurately characterized as an Eighth Amendment claim that Defendants’ provision of inadequate medical treatment, and delay in obtaining specialized medical assistance when it was" }, { "docid": "22102073", "title": "", "text": "methods of either prospective injunctive relief ... or damage suits against [defendants] in them personal capacities, neither of which requires waiver of sovereign immunity.” Ali, 278 F.3d at 7 (citations, quotation omitted); see also Alden v. Maine, 527 U.S. 706, 732, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (distinguishing between the existence of a legal right under federal law and the “implementation of the law in a manner consistent with the constitutional sovereignty of the States”). We therefore conclude that sovereign immunity bars Mr. Trujillo’s claims against the New Mexico defendants to the extent that Mr. Trujillo seeks damages from these defendants in their official capacities. Accordingly, we affirm the district court’s dismissal of these claims with prejudice pursuant to § 1915 on this basis. B. Merits of Mr. Trujillo’s remaining claims against the New Mexico defendants Remaining, then, are Mr. Trujillo’s claims against the New Mexico defendants in their official capacities for injunctive relief only, and his claims against the New Mexico defendants in their personal capacities for money damages. Liberally construing Mr. Trujillo’s pro se complaint, Price v. Philpot, 420 F.3d 1158, 1162 (10th Cir.2005), we read it to allege against these remaining defendants 1) a Fourteenth Amendment due process and equal protection claim; 2) a denial of the constitutional right of access to the courts claim; and 3) an Eighth Amendment nutritionally inadequate diet claim. The district court determined that no relief could be granted on any of these claims and dismissed them with prejudice pursuant to § 1915(e)(2) and Fed.R.Civ.P. 12(b)(6). A district court may dismiss under § 1915 for failure to state a claim if “it is ‘patently obvious’ that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991) (quotations omitted). “In determining whether dismissal is proper, we must accept the allegations of the complaint as true and we must construe those allegations, and any reasonable inferences that might be drawn from them, in the light most favorable to the plaintiff.” Perkins, 165 F.3d" }, { "docid": "11453580", "title": "", "text": "self-care. The Tulsa County Mental Health Court (MHC) issued an order of emergency detention, which lasted 66 days. A few months after his release from detention, Plaintiff filed this lawsuit against Holt, Glenwood Apartments, Coff-man Investment Company (CIC) (the owner of the Apartments), Clay Coffman (the owner of CIC), COPES, TPD, the Tulsa County District Attorney, TCBH, the Oklahoma Department of Mental Health and Substance Abuse Services (ODMH- SAS), MHC, the State of Oklahoma, and the United States of America. The district court dismissed for frivolousness and for failure to state a claim. We will affirm on the second ground, so we need not address frivolousness. II. DISCUSSION “Because [Plaintiff] is proceeding pro se, we liberally construe his filings.” Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir.2010). But the court will not “assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). And the pro se litigant must still follow the rules of procedure. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir.2005) We review de novo a dismissal for failure to state a claim. See Casanova, 595 F.3d at 1124. Under Fed.R.Civ.P. 8(a) a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). As the Supreme Court has explained, “[T]he pleading standard Rule 8 announces does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. (internal quotation marks omitted). “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.” Id. A. The Apartment Defendants The Amended Complaint fails to state a proper claim against Holt, Glenwood Apartments, CIC, and Coffman. Causes" }, { "docid": "5793070", "title": "", "text": "The court will grant a motion for dismissal under Rule 12(b)(6) only if there is an absence of law to support a claim of the type made, or of facts sufficient to malee a valid claim, or if on the face of the complaint there is an insurmountable bar to relief indicating that the plaintiff does not have a claim. See generally Rauch v. Day & Night Mfg., 576 F.2d 697, 702 (6th Cir.1978); Ott v. Midland-Ross Corp., 523 F.2d at 1367, 1369 (6th Cir.1975); Brennan v. Rhodes, 423 F.2d 706 (6th Cir.1970). In this case, Plaintiffs are proceeding pro se. A pro se litigant’s pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); see also Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A court should make a reasonable attempt to read the pleadings to state a valid claim on which the plaintiff could prevail, despite the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with the pleading requirements. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). This standard does not mean, however, that pro se plaintiffs are entitled to take every case to trial. See Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.1996): Indeed, courts should not assume the role of advocate for the pro se litigant. See Hall, 935 F.2d at 1110. III. MOTIONS TO DISMISS BY HEISER A. Due Process Violation — Count I In the first count of Plaintiffs’ amended complaint, Plaintiffs bring an action under 42 U.S.C. § 1983 alleging that Defendant Heiser deprived them of their civil rights. In particular, Plaintiffs allege that Heiser violated both their “[substantive] due process and procedural due process [rights] under the Fourteenth Amendment.” (Doe. # 30 at 19.) A section 1983 claim must satisfy two elements: “1) the deprivation of a right secured by the Constitution or laws of" }, { "docid": "18496315", "title": "", "text": "entities, e.g., the Healdton Police Department, the Wilson Police Department and the Carter County Sheriff’s Department. See, e.g., Dean v. Barber, 951 F.2d 1210, 1214 (11th Cir.1992) (“Sheriffs departments and police departments are not usually considered legal entities subject to suit[.]”), citing Martinez v. Winner, 771 F.2d 424, 444 (10th Cir.1985) (“The ‘City of Denver Police Department’ is not a separate suable entity, and the complaint will be dismissed as to it.”), vacated as moot, 800 F.2d 230 (10th Cir.1986). In summary, even under the less stringent standard applicable to pro se complaints, see Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir.1988) (“Moreover, -pro se complaints, like the one involved here, are held ‘to less stringent standards than formal pleadings drafted by lawyers.’ ”), quoting Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980), quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), it is clear that the Plaintiff has wholly failed to state any actionable civil rights claims in his amended complaint. See, e.g., Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991) (“[C]onelusory allegations without supporting factual avei’ments are insufficient to state a claim upon which relief can be based.”). Ordinarily, the Court would be required to grant the Plaintiff leave to amend before dismissing this action pursuant to Fed.R.Civ.P. 12(b)(6). See, e.g., McKinney v. Oklahoma, 925 F.2d 363, 365 (10th Cir.1991) (“[T]he preferred practice is to accord a plaintiff notice and an opportunity to amend his complaint before acting upon a motion to dismiss for failure to state a claim[.]”). See generally Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (“In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”). The Court declines to do so here, however, for two reasons. First, it is well-established that a" }, { "docid": "18496316", "title": "", "text": "See, e.g., Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991) (“[C]onelusory allegations without supporting factual avei’ments are insufficient to state a claim upon which relief can be based.”). Ordinarily, the Court would be required to grant the Plaintiff leave to amend before dismissing this action pursuant to Fed.R.Civ.P. 12(b)(6). See, e.g., McKinney v. Oklahoma, 925 F.2d 363, 365 (10th Cir.1991) (“[T]he preferred practice is to accord a plaintiff notice and an opportunity to amend his complaint before acting upon a motion to dismiss for failure to state a claim[.]”). See generally Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (“In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”). The Court declines to do so here, however, for two reasons. First, it is well-established that a pleading “which states bald conclusions unsupported by allegation of fact is legally insufficient” and that relief “may be denied without [further] hearing.” Martinez v. United States, 344 F.2d 325, 326 (10th Cir.1965). Second, this is not the Court’s first encounter with the Plaintiff; a previous action (against, inter alia, some of the same Defendants named herein) was summarily dismissed pursuant to Fed.R.Civ.P. 12(b)(6) because the Court found the Plaintiffs complaint to be legally insufficient. See Lindsey v. FBI Offices, et al., Case No. CIV-02-193-P, slip op. at 11 (E.D.Okla. Feb. 12, 2003) (per U.S. District Judge James H. Payne), aff'd, Lindsey v. FBI Offices, 80 Fed.Appx. 654 (10th Cir.2003) [unpublished opinion], cert. denied, 543 U.S. 899, 125 S.Ct. 136, 160 L.Ed.2d 168 (2004). It is clear from a review of the pleadings in that case as well as those here that “allowing [the Plaintiff] an opportunity to amend his complaint would be futile[.]” McKinney, 925 F.2d at 365, citing Huxall v. First State Bank, 842 F.2d 249, 250 n. 2 (10th Cir.1988). The Court therefore" }, { "docid": "22452027", "title": "", "text": "amend his complaint. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). Where a complaint fails to state a claim, and no amendment could cure the defect, a dismissal sua sponte may be appropriate. Curley v. Perry, 246 F.3d 1278, 1281-82 (10th Cir.2001). If such a dismissal operates on the merits of the complaint, it will also ordinarily be entered with prejudice. See id. at 1282. The district court apparently concluded, relying on this line of cases, that dismissal with prejudice was appropriate here because any attempt by Mr. Brereton to amend his complaint to allege standing would be futile. Aplt.App. at 107-08. It thus applied the futility concept to convert a dismissal that should have been without prejudice into one with prejudice. A dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile. Grossman v. Novell, Inc., 120 F.3d 1112, 1126 (10th Cir.1997). It is important to realize, however, that denial of leave to amend and dismissal with prejudice are two separate concepts. See generally, N. Assurance Co. of Am. v. Square D Co., 201 F.3d 84, 88 (2d Cir.2000) (noting that where denial of leave to amend does not reach underlying merits of claim, “the actual decision denying leave to amend is irrelevant to the claim preclusion analysis.”). A denial of leave to amend to repair a jurisdictional defect, even on futility grounds, does not call for a dismissal with prejudice. The two concepts do not overlap in those cases where, although amendment would be futile, a jurisdictional defect calls for a dismissal without prejudice. See Hutchinson v. Pfeil, 211 F.3d 515, 519, 523 (10th Cir.2000) (affirming district court’s denial of leave to amend to add state law claims on futility grounds, while also affirming dismissal, apparently without prejudice, of entire action for lack of standing); Bauchman ex rel. Bauchman v. West High School, 132 F.3d 542, 549-50, 561-62 (10th Cir.1997) (upholding district court’s denial of leave to amend complaint under futility analysis, but reversing merits disposition on pendent state claims and remanding for" }, { "docid": "22102074", "title": "", "text": "pro se complaint, Price v. Philpot, 420 F.3d 1158, 1162 (10th Cir.2005), we read it to allege against these remaining defendants 1) a Fourteenth Amendment due process and equal protection claim; 2) a denial of the constitutional right of access to the courts claim; and 3) an Eighth Amendment nutritionally inadequate diet claim. The district court determined that no relief could be granted on any of these claims and dismissed them with prejudice pursuant to § 1915(e)(2) and Fed.R.Civ.P. 12(b)(6). A district court may dismiss under § 1915 for failure to state a claim if “it is ‘patently obvious’ that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991) (quotations omitted). “In determining whether dismissal is proper, we must accept the allegations of the complaint as true and we must construe those allegations, and any reasonable inferences that might be drawn from them, in the light most favorable to the plaintiff.” Perkins, 165 F.3d at 806. Ultimately, we affirm in part, reverse in part, and remand. 1. Eighth Amendment and Fourteenth Amendment claims arising from Mr. Trujillo’s classification into segregation Mr. Trujillo claims that his classification violated his Eighth Amendment right to be free from cruel and unusual punishment and his Fourteenth Amendment right to procedural due process. The district court construed Mr. Trujillo’s complaint as alleging “improper classification” and held that it faded to state a claim for these constitutional violations because “[Mr. Trujillo] has no due process right to a particular classification.” The district court is correct that “[classification of [a] plaintiff into ... segregation does not involve deprivation of a liberty interest independently protected by the Due Process Clause.” Bailey v. Shillinger, 828 F.2d 651, 652 (10th Cir.1987) (citing Hewitt v. Helms, 459 U.S. 460, 468, 108 S.Ct. 864, 74 L.Ed.2d 675 (1983)). But prison conditions that “impose[ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life” may create a liberty interest protected by the Due Process Clause." } ]

[ { "docid": "22619967", "title": "", "text": "719 (1978); cf. 8 C. Wright & A. Miller, Federal Practice and Procedure §2008 (1970). The Rules do not differentiate between information that is private or intimate and that to which no privacy interests attach. Under the Rules, the only express limitations are that the information sought is not privileged, and is relevant to the subject matter of the pending action. Thus, the Rules often allow extensive intrusion into the affairs of both litigants and third parties. If a litigant fails to comply with a request for discovery, the court may issue an order directing compliance that is enforceable by the court’s contempt powers. Wash. Super. Ct. Civ. Rule 37(b). Petitioners argue that the First Amendment imposes strict limits on the availability of any judicial order that has the effect of restricting expression. They contend that civil discovery is not different from other sources of information, and that therefore the information is “protected speech” for First Amendment purposes. Petitioners assert the right in this-' case to disseminate any information gained through discovery. They do recognize that in limited circumstances, not thought to be present here, some information may be restrained. They submit, however: “When a protective order seeks to limit expression, it may do so only if the proponent shows a compelling governmental interest. Mere speculation and conjecture are insufficient. Any restraining order, moreover, must be narrowly drawn and precise. Finally, before issuing such an order a court must determine that there are no alternatives which intrude less directly on expression.” Brief for Petitioners 10. We think the rule urged by petitioners would impose an unwarranted restriction on the duty and discretion of a trial court to oversee the discovery process. <1 It is, of course, clear that information obtained through civil discovery authorized by modern rules of civil procedure would rarely, if ever, fall within the classes of unprotected speech identified by decisions of this Court. In this case, as petitioners argue, there certainly is a public interest in knowing more about respondents. This interest may well include most — and possibly all — of what has been discovered" } ]

[ { "docid": "6915797", "title": "", "text": "re-access at a later time. The Committee intends that, in leaving the message in storage, the addressee should be considered the subscriber or user from whom the system received the communication for storage, and that such communication should continue to be covered by section 2702(a)(2) [governing RCS providers].” H.R. Rep. No. 99-647, at 65 (1986). In addition to the Weaver court, another district court found that an ECS provider became an RCS provider after a communication had been read and stored. In Flagg v. City of Detroit, 252 F.R.D. 346, 362-63 (E.D.Mich.2008), the City of Detroit had previously used text messaging services provided by SkyTel, an ECS provider. By the time communications were accessed, however, SkyTel had ceased to be an active provider of text messaging services, although it continued to maintain a database of text messages sent. The district court found that it had become an RCS provider because it served in the capacity of a “virtual filing cabinet” for the City. Id. Courts outside the Ninth Circuit and commentators have accused the Ninth Circuit of relying “on a unitary approach, under which service providers contract with their customers to provide either an ECS or an RCS, but not both.” Flagg, 252 F.R.D. at 362. It is true that the Ninth Circuit in Quon reversed a district court finding that a single provider provided both ECS and RCS services to the same customer. See Quon v. Arch Wireless Operating Co., Inc., 445 F.Supp.2d 1116, 1137 (C.D.Cal.2006). Nonetheless, the court is puzzled by the criticism of Theofel as “unitary,” and speculates that there may be a misapprehension of that opinion due to a quirk in its issuance. The Ninth Circuit first issued an opinion in Theofel in August 2003. Theofel v. FareyJones, 341 F.3d 978 (9th Cir.2003). In February 2004, the Ninth Circuit issued an order amending that opinion, which added the following language: “[N]ot all remote computing services are also electronic communications services .... The government notes that remote computing services and electronic communications services are ‘often the same entities,’ but ‘often’ is not good enough to make the" }, { "docid": "2658835", "title": "", "text": "are unfounded. Additionally, Hagem-eyer has refused Rudolph’s bona fide attempts to resolve the dispute by granting French access to the storage facility. Since Gateway has discharged its duty to produce the documents as they are kept in the usual course of business, this portion of Hagemeyer’s motion to compel production will be denied. However, Hagemeyer must be given continuing access to materials kept in the storage facility as well as in the office. B. Hagemeyer’s Request for Computer Backup Tapes Hagemeyer also seeks to compel production of a full backup of Gateway’s e-mails. Any party may request production of documents within the possession, custody, or control of another party, subject to the qualifications of Rule 26(b) of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 34(a). A party need not produce documents or tangible things that are not in existence or within its control. Norman v. Young, 422 F.2d 470 (10th Cir.1970); see also 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure: Civil § 2210 (2d ed.1994). It is sufficient that the discovered party respond by saying that a document or tangible thing is not in existence. 8A Wright, Miller & Marcus, supra, § 2213. “In the face of a denial by a party that it has possession, custody or control of documents, the [requesting] party must make an adequate showing to overcome this assertion.” Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 147 (S.D.N.Y.1997) (quoting Golden Trade S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 525 n. 7 (S.D.N.Y.1992)); cf. Clark v. Universal Builders, Inc., 501 F.2d 324, 339 (7th Cir. 1974) (in a class action lawsuit, the party requiring absent class members to submit to written interrogatories has the burden of demonstrating the merits of discovery). Records kept in the ordinary course of the business of a party are presumed to exist. Goldman v. Checker Taxi Co., 325 F.2d 853, 856 (7th Cir.1963). The Court does not presume that all e-mails are kept in the regular course of business. See Sithon Maritime Company v. Holiday Mansion, No." }, { "docid": "19356094", "title": "", "text": "Regardless of the witness’ legal relationship to a document, for the purposes of a Rule 45 subpoena, a document is within a witness’s “possession, custody, or control” if the witness has the practical ability to obtain the document. Babaev v. Grossman, No. CV03-5076 (DLI)(WDW), 2008 WL 4185703 at *3 (E.D.N.Y. Sept. 8, 2008) (“Documents are under a party’s control when it has the right, authority or practical ability to obtain them from a non-party.”); In re NTL, Inc. Sec. Litig., 244 F.R.D. 179, 195 (S.D.N.Y.2007) (Peck, M.J.) (“Under Rule 34, control does not require that the party have legal ownership or actual physical possession of the documents at issue; rather, documents are considered to be under a party’s control when that party has the right, authority, or practical ability to obtain the documents from a non-party to the action.”) (internal quotation marks and citations omitted), afftd sub nom., Gordon Partners v. Blumenthal, 02 Civ. 7377(LAK), 2007 WL 1518632 (S.D.N.Y. May 17, 2007) (Lewis, D.J.); see In re Zyprexa Prods. Liab. Litig., 254 F.R.D. 50, 58 (E.D.N.Y.2008), afftd, 04-MD-1596, 2008 WL 4682311 (E.D.N.Y. Oct. 21, 2008); Bank of New York v. Meridien BIAO Bank Tanzania, Ltd., 171 F.R.D. 135, 146-47 (S.D.N.Y.1997) (Francis, M.J.); George Hantscho Co. v. Miehle-Goss-Dexter, Inc., supra, 33 F.R.D. at 334-35. If the party subpoenaed has the practical ability to obtain the documents, the actual physical location of the documents — even if overseas — is immaterial. Matter of Marc Rich & Co., A.G., 707 F.2d 663, 667 (2d Cir.1983); In re Flag Telecom Holdings, Ltd. Sec. Litig., 236 F.R.D. 177, 180 (S.D.N.Y.2006) (Conner, D.J.); Cooper Indus., Inc. v. British Aerospace, Inc., 102 F.R.D. 918, 920 (S.D.N.Y.1984) (Edelstein, D.J.). However, “[IJegal and practical inability to obtain the requested documents from the non-party, including by reason of foreign law, may place the documents beyond the control of the party who has been served with the Rule 34 request.” Cohen v. Horowitz, 07 Civ. 5834(PKC), 2008 WL 2332338 at *2 (S.D.N.Y. June 4, 2008) (Castel, D.J.), citing Shcherbakovskiy v. Da Capo Al Fine, Ltd., supra, 490 F.3d at 138. The" }, { "docid": "6915796", "title": "", "text": "and through it download messages onto a personal computer, but that is not the default method of using Hotmail. Thus, unless a Hotmail user varies from default use, the remote computing service is the only place he or she stores messages, and Microsoft is not storing that user’s opened messages for backup purposes.” Id. (footnote omitted). Given this fact, the Weaver court concluded that as soon as a user opened an email message and maintained that message on the Hotmail website, Microsoft was maintaining the message “solely for the purpose of providing storage or computer processing services to such subscriber or customer.” Weaver, 636 F.Supp.2d at 772 (quoting 18 U.S.C. § 2703(b)(2)). Stated differently, at that point Hotmail ceased to be an ECS provider and became an RCS provider, providing remote storage service for the email. Weaver found that such an interpretation was supported by the SCA’s legislative history. It cited the House Report, which stated: “Sometimes the addressee, having requested and received a message, chooses to leave it in storage on the service for re-access at a later time. The Committee intends that, in leaving the message in storage, the addressee should be considered the subscriber or user from whom the system received the communication for storage, and that such communication should continue to be covered by section 2702(a)(2) [governing RCS providers].” H.R. Rep. No. 99-647, at 65 (1986). In addition to the Weaver court, another district court found that an ECS provider became an RCS provider after a communication had been read and stored. In Flagg v. City of Detroit, 252 F.R.D. 346, 362-63 (E.D.Mich.2008), the City of Detroit had previously used text messaging services provided by SkyTel, an ECS provider. By the time communications were accessed, however, SkyTel had ceased to be an active provider of text messaging services, although it continued to maintain a database of text messages sent. The district court found that it had become an RCS provider because it served in the capacity of a “virtual filing cabinet” for the City. Id. Courts outside the Ninth Circuit and commentators have accused the Ninth" }, { "docid": "16026361", "title": "", "text": "the party-litigant can exercise custody and control over the documents. Hunter Douglas, Inc. v. Comfortex Corp., 1999 WL 14007, at *3. The rubric of this query is not limited to whether the party has a legal right to those documents but rather that there is “access to the documents” and “ability to obtain the documents.” Id. at *3 (citing Cooper Indus., Inc. v. British Aerospace, Inc., 102 F.R.D. 918, 920 (S.D.N.Y. 1984) & Addamax Corp. v. Open Software Found., Inc., 148 F.R.D. 462, 467 (D.Mass. 1993)); Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 146 (S.D.N.Y.1997) (finding that “documents are considered to be under a party’s control when the party has the right, authority, or practical ability to obtain the documents fi’om a non-party to the action”) (emphasis added); M.L.C. v. North Am. Philips Corp., 109 F.R.D. at 136 (discussing the legal right to the production of the document). The burden of establishing control over the documents being sought rests with the demanding party. DeSmeth v. Samsung Am., Inc., 1998 WL 74297, at *9; 7 Moore’s Federal Practice § 34.14[2][b]. Amtrak’s contention that DOT has possession, custody, and control of OSC’s records is supported by nothing more than hypotheses. The State has explicitly stated that DOT does not have access or control over OSC records (the documents that reflect the underlying facts and conclusions of certain audits) other than those records or reports OSC has given to DOT, which were the final reports on the audits of Super Steel, DOT, and Amtrak. DOT does not have the legal right nor the practical ability to those underlying documents. DOT did not generate, acquire or maintain the materials nor determine the location thereof. The audits have nothing to do with the contract between DOT and Amtrak, the transaction at issue in this litigation, and OSC will not receive any benefit of any award in this case. See supra n. 10. Thus, Amtrak has not and cannot meet its burden of proving control. D. Deliberative Process Privilege Amtrak is not without a possible mechanism to assess the records" }, { "docid": "8779902", "title": "", "text": "result from disclosure. See In re Remington Arms Co., 952 F.2d 1029, 1032 (8th Cir.1991); Rywkin v. New York Blood Center, No. 95 Civ. 10008, 1998 WL 556158 at *3 (S.D.N.Y. Aug. 31,1998). In this case, the parties easily meet their respective burdens on the first two prongs. The potentially incriminating information is confidential, and its disclosure could cause significant harm to the Madanes Brothers. At the same time, the bank statements are critical to fair litigation of the plaintiffs claims. These interests must therefore be weighed in determining whether the requested modifications to the Protective Order are warranted. Because of the harsh consequences of disclosure of incriminating information, it is appropriate to place strict limitations on the disclosure of the unredacted bank statements. The restrictions proposed by the Madanes Brothers, however, are unworkable. Maintaining the only unredacted copy at the court would hamper the ability to plaintiffs counsel to prepare for trial, and denying access to plaintiffs financial experts would make it virtually impossible for them to analyze the transactions. Likewise, potential witnesses could hardly provide insight into financial records from which all identifying information had been redacted. Accordingly, unredacted copies of the bank statements shall be maintained in a secure location at the offices of plaintiffs counsel in New York, where the parties, their attorneys, any independent financial expert, and any witness may review them. The defendants’ request that experts and witnesses be identified in advance before being given access to the bank statements is not justified. Such advance notice is warranted where there is reason to believe that the potential witnesses may have a vested interest in appropriating or misusing the information. See Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 144-45 (S.D.N.Y.1997) (where experts may have relation to producing party’s competitors, experts’ identity must be disclosed before trade secrets are revealed to them). That is not the case here. There is no suggestion that either potential witnesses or the plaintiffs experts are allied with the Argentine authorities that would prosecute any perceived criminal activities. If the identity of these persons were" }, { "docid": "15583152", "title": "", "text": "and copy, test, or sample any tangible things * * * which are in the possession, custody or control of the party upon whom the request is served.” Rule 34(a), Federal Rules of Civil Procedure. Moreover, “federal courts have consistently held that documents are deemed to be within the ‘possession, custody .or control’ for purposes of Rule 34 if the party has actual possession, custody or control, or has the legal right to obtain the documents on demand.” In re Bankers Trust Co., 61 F.3d 465, 469 (6th Cir.1995), citing Resolution Trust Corp. v. Deloitte & Touche, 145 F.R.D. 108, 110 (D.Colo.1992); Weck v. Cross, 88 F.R.D. 325, 327 (N.D.Ill. 1980). Specifically, control is defined as “the legal right, authority, or ability to obtain upon demand documents in the possession of another.” Florentia Cont. Corp. v. RTC, No. 92 Civ. 1188, 1993 WL 127187 at *3 (S.D.N.Y. Apr. 22, 1993). In practice,- however, other courts “have sometimes interpreted Rule 34 to require production if the party has practical ability to obtain the documents from another, irrespective of his legal entitlement to the documents.” U.S. v. Skeddle, 176 F.R.D. 258, 261 n. 5 (N.D.Ohio 1997) (citations omitted); citing, Scott v. Arex, 124 F.R.D. 39, 41 (D.Conn.1989) (“The word ‘control’ is to be broadly construed,” such that “[a] party controls documents that it has the right, authority, or ability to obtain on demand.”); Gary J. Mennitt, Document Discovery: Possession, Custody or Control, 214 N.Y.L.J. 214 (Nov. 21, 1995). Therefore, “under Rule 34, ‘control’ does not require that the party have legal ownership or actual physical possession of the documents at issue; rather, documents are considered to be under a party’s control when that party has the right, authority, or practical ability, to obtain the documents from a non-party to the action.” Bank of New York v. Meridien BIAO Bank Tanzania, Ltd., 171 F.R.D. 135, 146 (S.D.N.Y.1997), citing, In re NASDAQ Market-Makers Antitrust Litigation, 169 F.R.D. 493, 530 (S.D.N.Y.1996), citing Golden Trade S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 525 (S.D.N.Y.1992); Scott v. Arex, Inc., supra at 41; M.L.C., Inc. v. North" }, { "docid": "20417682", "title": "", "text": "party has “ ‘the right, authority, or practical ability to obtain the documents from a non-party to the action.’ ” Id. (quoting Bank of N.Y. v. Meridien BIAO Bank, Tanzania Ltd., 171 F.R.D. 135, 146-47 (S.D.N.Y.1997)). The court found that NTL Europe had both the legal right and the practical ability to obtain any documents in New NTL’s possession, as a “document sharing clause” made it “clear that New NTL was to make available to ... NTL Europe any documents that it needed to be able to comply with its legal obligations, such as [the plaintiffs’ suit].” Id. at 195-96. Second, NTL Europe’s practical ability to obtain the documents was evidenced by testimony from NTL Europe’s CEO, who stated that “[w]henever there was a document that we needed [from New NTL] ..., we would call [New NTL] and ask if they had it, and if they had it, they’d send it.” Id. at 196. As such, New NTL had the necessary “control” over documents to be able to preserve and produce them in litigation. Id. at 195. The concept of control as interpreted by In re NTL, Inc. Securities Litigation in the context of Rule 34 provides the closest analogy to control in connection with a spoliation issue, and applying it to this dispute, I conclude that Tracer/PSI did not have the sufficient legal authority or practical ability to ensure the preservation of documents prepared by Wilson. Apart from Goodman’s conclusory statements, no evidence has been presented to demonstrate that Tracer/PSI had any legal control over documents prepared or maintained by Wilson. Further, Goodman has failed to show the existence of facts that would demonstrate a relationship between Tracer/PSI and Wilson comparable to the cooperative, file-sharing relationship between NTL Europe and New NTL from In re NTL, Inc. Securities Litigation. Goodman also fails to identify any evidence that would support a conclusion that Tracer/PSI’s duty to preserve extended to Gade; therefore, I conclude that, on the record before me, Tracer/PSI had no obligation to preserve any documents prepared by Wilson and Gade. I do find that the duty to preserve" }, { "docid": "17291644", "title": "", "text": "This is corroborated by the deposition notices which reflect that three depositions are scheduled per day, with the exception of two depositions that are scheduled for separate dates. In response, plaintiff argues that the defendants have not shown “good cause,” as required by Rule 26(c) of the Federal Rules of Civil Procedure to warrant the issuance of a protective order. Plaintiff also claims that corporate defendants are often deposed in places other than the corporation’s principal place of business. DISCUSSION Under Rule 26(c) of the Federal Rules of Civil Procedure: [u]pon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending ... may make an order which justice requires to protect a party or person from ... undue burden or expense, including ... (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place. Fed.R.Civ.P. 26(e). As a general rule, “the party noticing the deposition usually has the right to choose the location.” See 7 Moore’s Federal Practice, § 30.20[1][b][ii]; Fed.R.Civ.P. 30(b)(1). The deposition of a non-resident defendant, however, is generally conducted at the defendant’s place of residence. See Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 155 (S.D.N.Y. 1997). Where a corporation is involved as a party to the litigation, there is a general presumption in favor of conducting depositions of a corporation in its principal place of business. See Snow Becker Krauss P.C. v. Proyectos e Instalaciones de Desalacion, S.A., 1992 WL 395598, at * 3 (S.D.N.Y. Dec. 11, 1992). “Underlying this rule appears to be the concept that it is the plaintiffs who bring the lawsuit and who exercise the first choice as to the forum. The defendants, on the other hand, are not before the court by choice.” Farquhar v. Shelden, 116 F.R.D. 70, 72 (E.D.Mich.1987). In addition, “the plaintiff is generally required to ‘bear any reasonable burdens of inconvenience that the action presents.’ ” Gulf Union Ins. Co. v. M/V Lacerta, 1992 WL 51532," }, { "docid": "20417681", "title": "", "text": "separate companies subsequently emerged: NTL Europe, Inc. (“NTL Europe”), and NTL, Inc. (“New NTL”). Id. NTL’s bankruptcy plan permitted the plaintiffs’ securities lawsuits to go forward against any individual defendants and NTL Europe as the successor to NTL. Id. Although NTL had purportedly sent out litigation hold memoranda to its various key players, these notices were largely ignored. NTL Europe contended it could not be responsible for any spoliation because it did not have “control” over documents or ESI relevant to any of the plaintiffs’ requests for production of documents; rather, any material was in non-party New NTL’s possession. Id. at 194— 95. The court stated that “[u]nder Rule 34(a), parties may request from their adversaries documents (including ESI) ‘which are in the possession, custody, or control of the party upon whom the request is served.’” Id. at 195 (quoting Fed.R.Civ.P. 34(a)). Rule 34 “control” would not require a party to have legal ownership or actual physical possession of any documents at issue. Instead, documents are considered to be under a party’s control when that party has “ ‘the right, authority, or practical ability to obtain the documents from a non-party to the action.’ ” Id. (quoting Bank of N.Y. v. Meridien BIAO Bank, Tanzania Ltd., 171 F.R.D. 135, 146-47 (S.D.N.Y.1997)). The court found that NTL Europe had both the legal right and the practical ability to obtain any documents in New NTL’s possession, as a “document sharing clause” made it “clear that New NTL was to make available to ... NTL Europe any documents that it needed to be able to comply with its legal obligations, such as [the plaintiffs’ suit].” Id. at 195-96. Second, NTL Europe’s practical ability to obtain the documents was evidenced by testimony from NTL Europe’s CEO, who stated that “[w]henever there was a document that we needed [from New NTL] ..., we would call [New NTL] and ask if they had it, and if they had it, they’d send it.” Id. at 196. As such, New NTL had the necessary “control” over documents to be able to preserve and produce them in litigation. Id." }, { "docid": "5785827", "title": "", "text": "to pursue remedies for violation of constitutional rights. Thus, far from taking into account the plaintiffs’ need for information, as required by Reynolds, the panel has stood Reynolds on its head and penalized the plaintiffs precisely because their need differs from that of the public at large. Not only does this result defy common sense, but ultimately it will simply lead to a waste of judicial resources. Henceforth, plaintiffs seeking information in a civil suit will simply file a simultaneous FOIA request to reap the advantage of the broader inquiry under FOIA. Nothing will be gained except duplication and delay. IV. The failure to assess de novo the claim of privilege has led the panel to disregard completely the significance of the widespread public disclosures concerning operation SHAMROCK. These disclosures undermine the government’s ex parte assertion that simply admitting acquisition of some of plaintiffs’ messages will pose a danger to national security. The disclosures concerning SHAMROCK are extensive. SHAMROCK was the subj'ect of extensive hearings before the Senate Select Committee, and is discussed at length in that Committee’s Report Even more pertinent are NSA’s disclosures in Jabara v. Kelly, where the government not only admitted that NSA had acquired six of Jabara’s messages, but went on to disclose the place from which the intercepted messages originated. In several FOIA cases NSA has further expanded the store of public knowledge concerning SHAMROCK, although in those cases the NSA has not revealed “whether the material . was derived from the interception of the [FOIA plaintiffs] own messages or the interception of messages between other parties which included reference to plaintiffs’ names.” Most recently, a district judge in the District of Columbia has again allowed access to SHAMROCK derived material under FOIA. Nor should it be forgotten that the district judge in this case, who had the benefit of NSA’s in camera, ex parte testimony was also unconvinced that admitting acquisition of the SHAMROCK material would pose any reasonable danger to national security sufficient to uphold the government’s claim of privilege. Taken together, these developments demonstrate that the panel could have reached its" }, { "docid": "20422427", "title": "", "text": "See also Dolin, Thomas & Solomon LLP v. United States Department of Labor, 719 F.Supp.2d 245, 253-54 (W.D.N.Y. 2010) (providing confidential and privileged information to persons within an organization not shown to have a need to know such information waives privilege (citing Coastal States Gas Corporation v. Dep’t of Energy, 617 F.2d 854, 863 (D.C.Cir.1980))); Allied Irish Banks, P.L.C. v. Bank of America, N.A., 252 F.R.D. 163, 169 (S.D.N.Y.2008) (corporation must maintain privilege by “limiting dissemination only to employees with need to know.” (citing and quoting Bank of New York v. Meridien Biao Tanzania Ltd., 1996 WL 474177, *2 (S.D.N.Y. Aug. 21, 1996) (citing 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Evidence, ¶ 503(b) [04] at 503-50 (1988)))). Here, Plaintiff fails to explain how Chiles, Day, Hobbs, Kristoff, Lusk or Sparkman served as policy-makers, during the February 10, 2010 through March 1, 2010 period within Plaintiffs corporate organization sufficient to establish any had a need-to-know of the privileged nature of the disputed communications. Plaintiffs contention that disseminating the information to all such employees retained the privilege because they were “few” in number and were “directly involved with the Public Safety Notice,” Plaintiffs Opposition at 9, amounting to an ipse dixit, is insufficient to satisfy this burden. Accordingly, as to each document received by any of these employees, Plaintiff has failed to demonstrate the privilege, if any, was maintained and thus not waived. 6. Subject-Matter Waiver. Even if any of the documents listed in Plaintiffs privilege log were, as Plaintiff maintains, entitled to protection from discovery under the privilege, it is also fundamental that voluntary disclosure by or on behalf of a party during judicial proceedings may waive the privilege as to the disclosed information as well as all the otherwise privileged information relating to the same subject-matter of the disclosed information. See von Bulow, 828 F.2d at 101-02. “[T]estimony as to part of a privileged communication, in fairness, requires production of the remainder.” von Bulow, 828 F.2d at 102 (citing 1 McCormick on Evidence § 93 at 194-95 (2d ed. 1972)). See also 5 McCormick on Evidence §" }, { "docid": "16026360", "title": "", "text": "companies, and local government bodies are not the same as subsidiaries.” Lyes v. City of Riviera Beach, Fla., 166 F.3d at 1342; Trevino v. Celanese Corp., 701 F.2d 397, 404 n. 10 (5th Cir.1983) (noting that “where state or local governmental entities are involved, any indicia of integration must be considered in a framework that is sensitive to the differences between governmental subdivisions and private entities”); Massey v. Emergency Assistance, Inc., 724 F.2d 690, 692 (8th Cir.1984) (citing Trevino v. Celanese Corp.); see also Sandoval v. City of Boulder, Colorado, 388 F.3d 1312, 1323 n. 3 (10th Cir.2004). Therefore, neither the infrastructure nor affiliation is a determinative factor as to whether Rule 34 may be extended to other document holders who are not parties to the litigation, but it is the indispensable element of control that is conclusive. The term control in the context of discovery is to be broadly construed. M.L.C. v. North Am. Philips Corp., 109 F.R.D. 134, 136 (S.D.N.Y.1986) (citing Herbst v. Able, 63 F.R.D. 135 (S.D.N.Y.1972)). The critical inquiry is whether the party-litigant can exercise custody and control over the documents. Hunter Douglas, Inc. v. Comfortex Corp., 1999 WL 14007, at *3. The rubric of this query is not limited to whether the party has a legal right to those documents but rather that there is “access to the documents” and “ability to obtain the documents.” Id. at *3 (citing Cooper Indus., Inc. v. British Aerospace, Inc., 102 F.R.D. 918, 920 (S.D.N.Y. 1984) & Addamax Corp. v. Open Software Found., Inc., 148 F.R.D. 462, 467 (D.Mass. 1993)); Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 146 (S.D.N.Y.1997) (finding that “documents are considered to be under a party’s control when the party has the right, authority, or practical ability to obtain the documents fi’om a non-party to the action”) (emphasis added); M.L.C. v. North Am. Philips Corp., 109 F.R.D. at 136 (discussing the legal right to the production of the document). The burden of establishing control over the documents being sought rests with the demanding party. DeSmeth v. Samsung Am., Inc., 1998" }, { "docid": "8779903", "title": "", "text": "hardly provide insight into financial records from which all identifying information had been redacted. Accordingly, unredacted copies of the bank statements shall be maintained in a secure location at the offices of plaintiffs counsel in New York, where the parties, their attorneys, any independent financial expert, and any witness may review them. The defendants’ request that experts and witnesses be identified in advance before being given access to the bank statements is not justified. Such advance notice is warranted where there is reason to believe that the potential witnesses may have a vested interest in appropriating or misusing the information. See Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 144-45 (S.D.N.Y.1997) (where experts may have relation to producing party’s competitors, experts’ identity must be disclosed before trade secrets are revealed to them). That is not the case here. There is no suggestion that either potential witnesses or the plaintiffs experts are allied with the Argentine authorities that would prosecute any perceived criminal activities. If the identity of these persons were to be revealed in advance, the one party could gain an unfair tactical advantage in litigation. Of course, under the Protective Order the parties would continue to require persons having access to the bank statements to agree in writing to maintain their secrecy, and the list of persons who had access to confidential information would be exchanged at the conclusion of the case. (Protective Order ¶ 9). In order to maintain the security of the bank statements, no copies, either redacted or unredaeted, shall be removed from the offices of plaintiffs counsel by any witness or expert. This will create some hardship, but the burden can be alleviated by requiring the Madanes Brothers to pay the costs of transportation and accommodation for any witness or expert to come to New York to review the documents. This is a fair result, since these costs are generated by the defendants’ desire to maintain confidentiality. In order to prevent the reimbursement process from requiring disclosure of the identity of witnesses and experts, the plaintiff shall bear the expense" }, { "docid": "20419088", "title": "", "text": "measuring, surveying, sampling, testing, photographing or recording by motion pictures or otherwise the property or any specifically designated object or operation thereon”); see also N.Y. CPLR §§ 3122-a(2) (governing responses to subpoenas duces tecum and using the phrase \"possession, custody and control”), 3122-a(4) (same), 5224(a)(4)(a-l) (same). . See 7 Daniel R. Coquillette et al„ Moore's Federal Practice § 34.14[2][b] (3d ed. 2011) (\"The determination whether a party is in possession or control of documents or other materials can involve the consideration of a wide array of factors, including ... [t]he ability of the party to the action to obtain the documents when it wants them.”); 3 Robert L. Haig, New York Practice Series — Commercial Litigation in New York State Courts § 25:5 (3d ed. 2010) (“Documents in the possession of an agent or employee of the person from whom discovery is sought, however, are deemed to be within the control of the person from whom discovery is sought.”). . 245 F.R.D. 474 (D.Colo.2007). . Fed.R.Civ.P. 34. . Tomlinson, 245 F.R.D. at 476-77 (emphasis added); see id. at 476 (“Courts have universally held that documents are deemed to be within the possession, custody or control if the party has actual possession, custody or control or has the legal right to obtain the documents on demand.”). . Bank of N.Y. v. Meridien BIAO Bank Tanz. Ltd., 171 F.R.D. 135, 146 (S.D.N.Y.1997) (emphasis added); accord In re Flag Telecom Holdings, Ltd. Sec. Litig., 236 F.R.D. 177, 180 (S.D.N.Y.2006) (“ ‘If the producing party has the legal right or the practical ability to obtain the documents, then it is deemed to have \"control,\" even if the documents are actually in the possession of a non-party.' ” (quoting Riddell Sports Inc. v. Brooks, 158 F.R.D. 555, 558 (S.D.N.Y. 1994))). . Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 138 (2d Cir.2007). . See Chevron Corp. v. Salazar, 275 F.R.D. 437, 447 & n. 8 (S.D.N.Y.2011) (“[T]he phrase 'possession custody or control’ carries the same meaning under both Rules”); see also Tiffany (NJ) LLC v. Qi Andrew, 276 F.R.D. 143, 147 (S.D.N.Y.2011) (“Regardless" }, { "docid": "1786692", "title": "", "text": "express a reason for its failure to do so. In early 1978, plaintiffs had requested access to several documents, including (1) the text of the IRS disclosure-plan proposal; (2) all documents relating to contacts with non-IRS personnel regarding the disclosure plan; (3) all written reasons for not implementing the plan; and (4) all written logs of congressional inquiries about the tax matters of third parties. The IRS failed to grant this request. Plaintiffs were unsuccessful in their administrative appeal and filed this FOIA suit in November, 1978. During discovery, the parties identified three classes of documents which fell within plaintiff’s FOIA request: (1) the text of the disclosure plan, which had never been publicly disseminated; (2) twenty-two internal memoranda discussing the plan; and (3) logs of congressional contacts with the IRS. The District Court ordered the IRS to disclose the logs, but held that the text of the plan and the 22 memoranda were properly withheld under Exemption 5. Relying in part on Judge Smith’s memorandum opinion in Neufeld, Judge Oberdorfer noted that although plaintiffs had presented “serious arguments” regarding the inapplicability of the attorney-client privilege to the memoranda, most of those documents fell within the deliberative privilege for internal governmental decision-making. (Memorandum at 2; C.C.J.A. 114). The IRS appealed the judgment and Common Cause cross-appealed. By stipulation, the IRS dismissed its appeal. Thus, the only issue presented on appeal is that of whether the District Court correctly ruled that the IRS could withhold the 22 internal memoranda, including the draft of the disclosure plan, under Exemption 5. II. Documents which a private party could not obtain from an agency in civil discovery are exempt from disclosure under Exemption 5: (b) this section does not apply to matters that are (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency. 5 U.S.C. § 552(b)(5) (Supp. III 1979). This exemption is necessary to preserve the efficacy of the decision-making process and to encourage the free exchange of ideas within the agency without the threat of" }, { "docid": "17276792", "title": "", "text": "the detriment of defendants. The burden of these discovery obligations is not insubstantial. Many of the original lenders are located outside the United States and thus beyond the subpoena power of the Court. Even in connection with some domestic parties that are not within the immediate power of this Court, defendants would have to persuade courts in other districts, unfamiliar with the litigation, to enforce subpoenas. The claims being asserted are those of the original lenders. They cannot be asserted by an agent or assignee without the concomitant obligation to produce relevant discovery to defendants. If plaintiff and the assignees failed to obtain rights to insist on cooperation from their assignors in providing such discovery, and cannot persuade the lending Banks to cooperate now, that is their problem, not defendants’. Plaintiff complains that imposing such discovery obligations on it is unprecedented. That is incorrect. See, e.g., Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135 (S.D.N.Y.1997); see also Com/pagnie Franqaise d’Assurance Pour le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D. 16 (S.D.N.Y.1984); Firemen’s Mutual Ins. Co. v. Erie-Lackawanna R.R. Co., 35 F.R.D. 297 (N.D.Ohio 1964). In Bank of New York, the Court stated that it would be “patently unfair” to let an assignee evade discovery obligations that the original debt owner would have had to sustain, leaving it to the opposing party both to obtain the discovery from the original debt owner and to provide the assignee with discovery in its control. 171 F.R.D. at 149. Plaintiff rightly points out that Bank of New York is distinguishable insofar as the assignment at issue there was made after litigation and discovery had already commenced. Ultimately, however, this distinction is without difference. The implication of plaintiff’s line-drawing is that the same unfairness can be imposed more subtly by assigning claims before tort litigation is underway. But the prejudice to defendants is equal either way. The question posed in this dispute is who should properly bear the risks and burdens of discovery from the original lender Banks. Comparing the position of JPM to that of defendants, the most" }, { "docid": "19356095", "title": "", "text": "(E.D.N.Y.2008), afftd, 04-MD-1596, 2008 WL 4682311 (E.D.N.Y. Oct. 21, 2008); Bank of New York v. Meridien BIAO Bank Tanzania, Ltd., 171 F.R.D. 135, 146-47 (S.D.N.Y.1997) (Francis, M.J.); George Hantscho Co. v. Miehle-Goss-Dexter, Inc., supra, 33 F.R.D. at 334-35. If the party subpoenaed has the practical ability to obtain the documents, the actual physical location of the documents — even if overseas — is immaterial. Matter of Marc Rich & Co., A.G., 707 F.2d 663, 667 (2d Cir.1983); In re Flag Telecom Holdings, Ltd. Sec. Litig., 236 F.R.D. 177, 180 (S.D.N.Y.2006) (Conner, D.J.); Cooper Indus., Inc. v. British Aerospace, Inc., 102 F.R.D. 918, 920 (S.D.N.Y.1984) (Edelstein, D.J.). However, “[IJegal and practical inability to obtain the requested documents from the non-party, including by reason of foreign law, may place the documents beyond the control of the party who has been served with the Rule 34 request.” Cohen v. Horowitz, 07 Civ. 5834(PKC), 2008 WL 2332338 at *2 (S.D.N.Y. June 4, 2008) (Castel, D.J.), citing Shcherbakovskiy v. Da Capo Al Fine, Ltd., supra, 490 F.3d at 138. The burden of demonstrating that the party from whom discovery is sought has the practical ability to obtain the documents at issue lies with the party seeking discovery. Golden Trade S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 525 n. 7 (S.D.N.Y.1992) (Dolinger, M.J.) (“In the face of a denial by a party that it has possession, custody or control of documents, the discovering party must make an adequate showing to overcome this assertion.”); accord Honda Lease Trust v. Middlesex Mut. Assur. Co., No. 3:05CV1426 (RNC), 2008 WL 3285242 at *2 (D.Conn. Aug. 7, 2008); SEC v. Credit Bancorp, Ltd., supra, 194 F.R.D. at 472; In re Lozano, 392 B.R. 48, 54 (Bnkr.S.D.N.Y.2008) (Glenn, B.J.). “[A] corporation is presumed to have custody and control of its own records ordinarily required in the course of business, and the burden of proving otherwise is on the corporation” (Pl.’s Mem. in Supp. at 7, citing Hunter Douglas, Inc. v. Comfortex Corp., CIV. A. M8-85 (WHP), 1999 WL 14007 at *3 n. 6 (S.D.N.Y. Jan. 11, 1999) (Pauley, D.J.); Cooper" }, { "docid": "17276791", "title": "", "text": "burdensome for defendants to obtain discovery from the Banks than it is for JPM, and defendants are better situated to enforce disputed discovery from any unwilling Bank. Viewed from any angle, plaintiffs position cannot be correct. It is both logically inconsistent and unfair to allow the right to sue to be transferred to assignees of a debt free of the obligations that go with litigating a claim. If the plaintiffs theory carried the day, the assignor would be able to assign a claim more valuable than it could ever have, because its claim, if pursued by the assignor, would entail certain obligations that, when assigned, would magically disappear. Stated another way, on plaintiffs theory, by assigning their tort claims, the Banks also shifted onto defendants the cost of third-party discovery, where the third parties are the very institutions asserting that they were defrauded. It would be unfair to the defendants to permit plaintiff and the assignees to divorce the benefits of the claims from the obligations that come with the right to assert them, to the detriment of defendants. The burden of these discovery obligations is not insubstantial. Many of the original lenders are located outside the United States and thus beyond the subpoena power of the Court. Even in connection with some domestic parties that are not within the immediate power of this Court, defendants would have to persuade courts in other districts, unfamiliar with the litigation, to enforce subpoenas. The claims being asserted are those of the original lenders. They cannot be asserted by an agent or assignee without the concomitant obligation to produce relevant discovery to defendants. If plaintiff and the assignees failed to obtain rights to insist on cooperation from their assignors in providing such discovery, and cannot persuade the lending Banks to cooperate now, that is their problem, not defendants’. Plaintiff complains that imposing such discovery obligations on it is unprecedented. That is incorrect. See, e.g., Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135 (S.D.N.Y.1997); see also Com/pagnie Franqaise d’Assurance Pour le Commerce Exterieur v. Phillips Petroleum Co., 105 F.R.D." }, { "docid": "15583153", "title": "", "text": "irrespective of his legal entitlement to the documents.” U.S. v. Skeddle, 176 F.R.D. 258, 261 n. 5 (N.D.Ohio 1997) (citations omitted); citing, Scott v. Arex, 124 F.R.D. 39, 41 (D.Conn.1989) (“The word ‘control’ is to be broadly construed,” such that “[a] party controls documents that it has the right, authority, or ability to obtain on demand.”); Gary J. Mennitt, Document Discovery: Possession, Custody or Control, 214 N.Y.L.J. 214 (Nov. 21, 1995). Therefore, “under Rule 34, ‘control’ does not require that the party have legal ownership or actual physical possession of the documents at issue; rather, documents are considered to be under a party’s control when that party has the right, authority, or practical ability, to obtain the documents from a non-party to the action.” Bank of New York v. Meridien BIAO Bank Tanzania, Ltd., 171 F.R.D. 135, 146 (S.D.N.Y.1997), citing, In re NASDAQ Market-Makers Antitrust Litigation, 169 F.R.D. 493, 530 (S.D.N.Y.1996), citing Golden Trade S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 525 (S.D.N.Y.1992); Scott v. Arex, Inc., supra at 41; M.L.C., Inc. v. North American Philips Corp., 109 F.R.D. 134, 136 (S.D.N.Y. 1986). As we noted at the Hearing, in our view, Yey’s pending patent, regarding safety features for lamps, is not attributable to American, absent a showing that Yey is more than merely a consultant to American. On the other hand, to the extent that American, or its agents, have “care, custody, or control” over patent-related documents, that are responsive to the Plaintiffs’ requests, they are directed to produce them. This direction encompasses documents that American may not physically possess, but which it is capable of obtaining upon demand. Also, to the extent that American is in the “care, custody, or control” of documents involving transactions with Semilla Industrial Co., Kingdom Lighting Industry Co., or Bright Lamps, or documents evidencing its corporate structure, it is directed to produce that information as well. Next, the Plaintiffs challenge American’s response to Document Request No. 20, which seeks “all correspondence or written communications of any kind between [American] and any customer regarding any claim, potential of possible malfunction, of a torchiere" } ]

[ { "docid": "18105876", "title": "", "text": "discharged. The Board stated “[i]n view of this result, we need not address the issues in the other counts.” All-State, 02-1 B.C.A. (CCH) at 157, 021. The Navy timely appealed. DISCUSSION We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1295(b) and 41 U.S.C. § 607(g)(1)(B). The standard of review applied to Board decisions is prescribed by statute: [T]he decision of the agency board on any question of law shall not be final or conclusive, but the decision on any question of fact shall be final and conclusive and shall not be set aside unless the decision is fraudulent, or arbitrary, or capricious, or so grossly erroneous as to necessarily imply bad faith, or if such decision is not supported by substantial evidence. 41 U.S.C. § 609(b) (2000). The sole issue on appeal is whether the Navy’s failure to make the progress payment operated as a breach of contract because the amount withheld was more than ten percent of the earned amount. I The Navy first argues that it permissibly withheld the progress payment because it was considering terminating the contract for default, and default termination was imminent. Thus, the Navy’s position is that, when the government is about to declare a default termination, it is discharged from its contractual obligation to make progress payments because of the possibility that the contractor owes breach damages to the government. We conclude that, in the absence of a contract clause permitting such action, the Navy had no such authority. The Navy does not cite any provision of the contract or regulation as authorizing it to withhold the progress payment in anticipation of a default determination. In stead, the Navy argues that “[t]he purpose of progress payments is to provide the contractor with the funds that he needs to continue performance,” a purpose that was vitiated by the impending default. (Appellant’s Br. at 7-8.) The FAR, as incorporated into the contract, expressly defines the government’s contract termination rights for default. 48 C.F.R. § 52.249-10 (1984). There is no regulation, however, permitting the government to withhold progress payments when the government is" } ]

[ { "docid": "22916205", "title": "", "text": "§ 1401(b). By Treasury Regulation 116 § 405.301 and Regulation 128 § 408.304 the employer’s liability for the tax attaches whether or not he withholds it from the wages and the 'amount withheld from the wages of an employee shall be allowed to him as a credit on his income tax liability and the Government shall make a credit or refund to' the employee “even though such tax has not been paid over to the Government by the employer.” It is thus clear that Kendrick’s liability for the payment of these taxes arises by virtue of law and not because of any contractual acknowledgement of the existing legal liability. The trial court’s conclusion that Kendrick breached its construction contract with Leavell was not predicated on the ground that it had failed to discharge its tax liability for these withholding taxes to the Government. Rather the court seems to have concluded that the sums withheld constituted wages and failing to' pay them over to the Government constituted a breach of the contract requiring it to pay all wages. This is also one of the contentions made by the Government on appeal. In its brief the Government states: “The amounts covered by the liens of the United States represent amounts deducted and withheld from wages paid by Kendrick Electric, Inc., to its employees in the performance of its subcontract. They represent a part of the liability assumed by the prime contractor and its surety for the payment of labor and material and to the extent of such withholding the United States succeeded to the rights of the wage earners by operation of law.” And that “Under the circumstances the United States succeeds by operation of law to the rights of the wage earners to the amounts deducted and withheld from wages as effectively as if it had taken a written assignment from the wage earners covering the withheld portion of their wages.” However, from the statutes and regulations as set out it seems clear that when an employer withholds the tax from an employee’s wage and pays him the balance the employee" }, { "docid": "21897092", "title": "", "text": "that after they became aware — that is, by direct evidence— after they became aware that taxes were not being withheld and paid, that they continued to sign checks for materials and other creditors rather than paying this. The evidence is un-contradicted that checks were signed paying themselves salaries without taxes being withheld. They were paid the gross amount.” (App. 237.) Moore and Tomlin each continued to sign checks on Jeteo’s accounts for payroll and for creditors in amounts substantially in excess of the taxes required to be withheld and paid to the Government. The quarterly Form 941, that was submitted for the second quarter of 1966 without payment, bore the signature of Moore as President of Jeteo. A mortgage on Jeteo property, that was given to secure advances from Blount for payroll and other expenses, was signed by Moore as President of Jeteo “with full authority.” Both Moore and Tomlin had authority to hire and fire employees. Both testified that there was never any formal delineation of duties at Jeteo ' between the officers. Moore testified, however, that Branch made all of the decisions with respect to which bills should be paid and that he merely followed orders and instructions from Branch in signing his name to corporate checks. Prior to Jetco’s incorporation, both Moore and Tomlin were familiar with withholding requirements and had made such payments for other taxpayers. II. An employer is required to withhold federal income and social security taxes from the wages of his employees. The amount of the taxes so collected or withheld constitutes a special fund in trust for the United States. Each employee is credited by the Government with the taxes withheld from his salary. When a corporation fails to pay the taxes which it is required to withhold, section 6672 makes it possible for the Government to collect its tax moneys from the responsible officers of the corporation. The penalty imposed by section 6672 is distinct from and not in substitution of the liability for taxes owed by the employer. Nonetheless, as stated in Newsome, supra, “Section 6672’s ‘basic purpose is" }, { "docid": "8320193", "title": "", "text": "in the property involved, the withholding procedures accomplished by the DOL did not extinguish all of the Debtor’s interests. The divergent holdings are attributable to this Court’s finding that the IRS completed all procedures necessary for the levy and seizure of the receivables while the DOL did not. The Service Contract Act found at 41 U.S.C. § 351 et seq. (hereinafter the “SCA”) requires that certain provisions designed to protect employees (concerning minimum wages, fringe benefits, and health and safety) be included in all contracts (over $2,500) entered into by the United States. Among the provisions of the SCA, § 352 provides for withholding procedures to be followed when the statute is violated. This section allows the Federal Government to withhold payment due a contractor in an amount equal to any compensation found to be due under the SCA. Once such a finding has been made the proper amount is to be held in a deposit fund and paid to the underpaid employees by order of the Secretary of Labor (hereinafter the “Secretary”). The statutory provisions of § 352 were not complied with in this case. This Court finds three specific deficiencies in the withholding procedures used by the DOL: (1) no definitive amount was found to be due employees under the SCA, (2) the payment withheld was not deposited into a deposit fund as the statute requires, and (3) no order to pay the amount withheld to underpaid employees was ever issued by the Secretary. Due to these deficiencies the withholding process was not properly completed and thus PTS’ interest in the receivables was not extinguished. This Court finds that the amount due employees under the SCA was never definitively calculated. PTS disputes the $38,-240.65 amount declared due under the SCA in the DOL’s withholding letter. Mr. Sheilds, the DOL Wage and Hour Division Compliance Officer who investigated PTS, testified that only a preliminary computation was performed prior to the issuance of the withholding letter sent to the GSA. Mr. Sheilds also conceded that the documents concerning these computations which were sent to PTS differed from the documents contained" }, { "docid": "8320192", "title": "", "text": "($52,066.95). Furthermore, these amounts due PTS were undisputed by GSA and a GSA check drawn upon the United States Treasury is as good as cash. Thus upon the filing of PTS’ petition there remained nothing more for the IRS to do to extinguish all of PTS’ rights in the receivables. The ministerial action of receiving the amount withheld by the GSA is not considered by this Court to be a substantive element necessary to the completion of the levy. There was therefore no interest in the accounts which could become property of the estate under Code § 541(a)(1) and the Debtor may not recover property which is not part of its estate. II. PTS v. DOL Using the Whiting Pools framework to focus the issues involved in the dispute between PTS and DOL, the threshold question is whether PTS’ interest in property withheld pursuant to a DOL withholding letter was extinguished by such withholding. Although this Court found that the procedures implementing the IRS levy in this case extinguished all of PTS’ rights and interests in the property involved, the withholding procedures accomplished by the DOL did not extinguish all of the Debtor’s interests. The divergent holdings are attributable to this Court’s finding that the IRS completed all procedures necessary for the levy and seizure of the receivables while the DOL did not. The Service Contract Act found at 41 U.S.C. § 351 et seq. (hereinafter the “SCA”) requires that certain provisions designed to protect employees (concerning minimum wages, fringe benefits, and health and safety) be included in all contracts (over $2,500) entered into by the United States. Among the provisions of the SCA, § 352 provides for withholding procedures to be followed when the statute is violated. This section allows the Federal Government to withhold payment due a contractor in an amount equal to any compensation found to be due under the SCA. Once such a finding has been made the proper amount is to be held in a deposit fund and paid to the underpaid employees by order of the Secretary of Labor (hereinafter the “Secretary”). The statutory" }, { "docid": "18105880", "title": "", "text": "Applied Cos. v. United States, 144 F.3d 1470, 1475 (Fed. Cir.1998); Bank of Am. Nat’l Trust & Sav. Ass’n v. United States, 23 F.3d 380, 384 (Fed.Cir.1994); Cecile Indus., Inc. v. Cheney, 995 F.2d 1052, 1055 (Fed.Cir.1993); Project Map, Inc. v. United States, 203 Ct.Cl. 52, 486 F.2d 1375, 1377 (1973); William Green Constr. Co. v. United States, 201 Ct.Cl. 616, 477 F.2d 930, 936 (1973); Aetna Ins. Co. v. United States, 197 Ct.Cl. 713, 456 F.2d 773, 775 (1972). The set-off right applies to government claims both under other contracts, see William Green, 477 F.2d at 936, and under the same contract, Cecile, 995 F.2d at 1054. Of necessity, the contractor here recognizes that the government has broad set-off rights, but makes a number of arguments as to why the government’s set-off rights did not justify the withholding under the circumstances in this case. First, the contractor argues that the government’s set-off right is defeated by the FAR provision concerning progress payments (“the Retainage Clause”), which was incorporated in All-State’s contract with the Navy. In other words, the contractor argues that the government surrendered its set-off right. The Board agreed, stating that if the contract is “interpreted as permitting the retention, before substantial completion of the work, of liquidated delay damages in excess of the express limit in the FAR [Retainage] clause, it is in violation of the FAR clause which is mandated by regulation, and the Government cannot by law benefit from it.” All-State, 02-1 B.C.A. (CCH) at 157,-020-21 (citing Beta Sys., Inc. v. United States, 838 F.2d 1179, 1185 (Fed.Cir.1988)). The Retainage Clause provides: If the Contracting Officer finds that satisfactory progress was achieved during any period for which a progress payment is to be made, the Contracting Officer shall authorize payment to be made in full. However, if satisfactory progress has not been made, the Contracting Officer may retain a maximum of 10 percent of the amount of the payment until satisfactory progress is achieved. When the work is substantially complete, the Contracting Officer may retain from previously withheld funds and future progress payments that amount" }, { "docid": "19998117", "title": "", "text": "administrative process and did not pay its employees the increased wages. The contracting officer eventually withheld from the contractor the amounts necessary to pay the increased wages under a provision of the contract which allows the contracting officer to withhold “so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics ... the full amount of wages required by the contract.” 925 F.2d at 1427 & n. 1. Emerald Maintenance then submitted a claim to the contracting officer for payment of the withheld money. The contracting officer denied the claim and Emerald Maintenance appealed to the Board. Before the Board, Emerald Maintenance relied on three alternative legal theories to support its right to recovery: defective specification, misrepresentation, and mutual mistake. Id. at 1427. The Board dismissed for lack of jurisdiction with respect to the first two theories and ruled in favor of the government with respect to the mutual mistake theory. In affirming the Board’s dismissal for lack of jurisdiction, the Emerald Maintenance court concluded that Emerald Maintenance’s defective specification and misrepresentation claims were in reality challenges to the wage rate it was required to pay its roofers and the DOL’s classification of those employees. See section I.C. supra. In contrast, in the instant case, the contractor did challenge the DOL’s December 15, 1986 ruling through the administrative process. And once it received the Secretary of Labor's final determination upholding the DOL’s earlier ruling, the contractor paid its employees the increased wages as required by the DOL’s ruling. By asserting entitlement to an equitable adjustment under the Price Adjustment Clause and the Changes Clause of the contract, the contractor is not merely challenging the DOL’s classification of its employees, or challenging the wage rate it had to pay its employees. After directly challenging the DOL’s ruling, Burnside-Ott accepted the ruling and paid its employees. Rather, the contractor simply requests the Claims Court to determine the effect that the DOL’s classification has on its contract rights. Such a determination requires the court to construe and apply the Price Adjustment Clause and the Changes Clause." }, { "docid": "18721034", "title": "", "text": "provisions of the Internal Revenue Code of 1954 govern the collection of trust-fund taxes: Section 3402 requires that employers making payments of wages deduct and withhold income taxes for such wages; section 3402 also establishes that the employer shall be held liable for the payment of the tax required to be deducted and withheld; section 3102(a) places the duty of collection upon the employer; section 7501 provides that the withheld or collected taxes must be held in a special trust fund for the United States; and section 6672 imposes personal liability upon those corporate officials in charge of collecting the trust fund taxes who fail to remit these funds to the United States. . The district court reserved final judgment in the refund suit since there was a question as to whether the corporate officials, Avildsen and Balón, were personally liable for the withholding taxes as responsible persons under section 6672. In early January, 1985, the government, Avildsen and Balón entered into a stipulation that Avildsen and Balón were the responsible persons of the corporation and thus were liable for the unpaid trust fund taxes in dispute. The decision was then final and the appellants filed this appeal. . The employee/taxpayer receives a credit from the government for those taxes withheld by the employer, regardless of whether the employer actually pays those taxes to the government. Thus without the penalty against responsible persons, pursuant to section 6672, for failure to pay the withholding taxes to the government, the government would loose significant amounts of income if the corporation proved unable to pay the withholding taxes. See Hartman v. United States, 538 F.2d 1336, 1340 (8th Cir.1976); Moore v. United States, 465 F.2d 514, 517-18 (5th Cir.1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 907, 34 L.Ed.2d 688 (1972). . Interestingly, we noted in dicta in footnote two of the decision that \"[t]he government might have been correct in its claim if the corporation had been in bankruptcy, which it was not.” Muntwyler, 703 F.2d at 1034 n. 2. . The appellants and the IRS dispute the amount of supervision that" }, { "docid": "23683969", "title": "", "text": "Mr. Justice Marshall delivered the opinion of the Court. The city of Charlotte, N. C., refuses to withhold from the paychecks of its firefighters dues owing to their union, Local 660, International Association of Firefighters. We must decide whether this refusal violates the Equal Protection Clause of the Fourteenth Amendment. I Local 660 represents about 351 of the 543 uniformed members of the Charlotte Fire Department. Since 1969 the union and individual members have repeatedly requested the city to withhold dues owing to the union from the paychecks of those union members who agree to a checkoff. The city has refused each request. After the union learned that it could obtain a private group life insurance policy for its membership only if it had a dues checkoff agreement with the city, the union and its officers filed suit in federal court alleging, inter alia, that the city’s refusal to withhold the dues of union members violated the Equal Protection Clause of the Fourteenth Amendment. The complaint asserted that since the city withheld amounts from its employees’ paychecks for payment to various other organizations, it could not arbitrarily refuse to withhold amounts for payment to the union. On cross-motions for summary judgment, the District Court for the Western District of North Carolina ruled against the city. The court determined that, although the city had no written guidelines, its “practice has been to allow check offs from employees’ pay to organizations or programs as required by law or where the check off option is available to all City employees or where the check off option is available to all employees within a single employee unit such as the Fire Department.” 381 F. Supp. 500, 502 (1974). The court further found that the city has “not allowed check off options serving only single employees or programs which are not available either to all City employees or to all employees engaged in a particular section of City employment.” Ibid. Finding, however, that withholding union dues from the paychecks of union members would be no more difficult than processing any other deduction allowed by the" }, { "docid": "8320195", "title": "", "text": "in the DOL file. Mr. Sheilds further testified that no determination was made as to whether payroll checks which were returned unpaid due to insufficient funds were ever honored, thus the DOL lacked information potentially affecting the amount due. The Court concludes from this evidence that the $38,240.65 sum recited in the DOL’s withholding letter is a preliminary calculation insufficient to determine the precise amount due as the SCA requires. The two remaining elements necessary to a proper withholding under the SCA were not proven by the evidence submitted. Mr. Larry Golden, the GSA’s Accounts Payable Branch Chief, testified that the procedure for withholding payment pursuant to the DOL’s letter was simply non-payment to the contractor. The evidence contained no indication that the payment withheld in this case was kept in a deposit fund as the statute requires. Similarly, since no evi dence was introduced indicating that the Secretary ordered the compensation of underpaid employees from the payments withheld, this Court finds that no such order was issued. Assuming arguendo that compliance with § 352 of the SCA would extinguish all interest a debtor may have in property withheld pursuant to that section, less than full compliance leaves a debtor’s interest in its receivables in tact. The facts in this case reveal several points at which the statutory procedures for withholding payment pursuant to SCA violations were not followed. Consequently, even if the § 352 procedures could effectively terminate a debtor’s interest in the property involved, no such termination occurred in this case. The DOL did not extinguish PTS’ interest in the receivables and the DOL is therefore not entitled to such property. III. PTS v. DES The only issue presented to the Court involving PTS and the DES is that of set-off. As of October 3, 1986, PTS owed the State of Missouri DES over $8,510.61 for unpaid unemployment taxes and as of that date the State of Missouri, owed PTS $8,510.61 for janitorial services performed by PTS. At issue in this case is the main requirement of the setoff provision under § 553(a): mutuality. Although it is not" }, { "docid": "8320194", "title": "", "text": "provisions of § 352 were not complied with in this case. This Court finds three specific deficiencies in the withholding procedures used by the DOL: (1) no definitive amount was found to be due employees under the SCA, (2) the payment withheld was not deposited into a deposit fund as the statute requires, and (3) no order to pay the amount withheld to underpaid employees was ever issued by the Secretary. Due to these deficiencies the withholding process was not properly completed and thus PTS’ interest in the receivables was not extinguished. This Court finds that the amount due employees under the SCA was never definitively calculated. PTS disputes the $38,-240.65 amount declared due under the SCA in the DOL’s withholding letter. Mr. Sheilds, the DOL Wage and Hour Division Compliance Officer who investigated PTS, testified that only a preliminary computation was performed prior to the issuance of the withholding letter sent to the GSA. Mr. Sheilds also conceded that the documents concerning these computations which were sent to PTS differed from the documents contained in the DOL file. Mr. Sheilds further testified that no determination was made as to whether payroll checks which were returned unpaid due to insufficient funds were ever honored, thus the DOL lacked information potentially affecting the amount due. The Court concludes from this evidence that the $38,240.65 sum recited in the DOL’s withholding letter is a preliminary calculation insufficient to determine the precise amount due as the SCA requires. The two remaining elements necessary to a proper withholding under the SCA were not proven by the evidence submitted. Mr. Larry Golden, the GSA’s Accounts Payable Branch Chief, testified that the procedure for withholding payment pursuant to the DOL’s letter was simply non-payment to the contractor. The evidence contained no indication that the payment withheld in this case was kept in a deposit fund as the statute requires. Similarly, since no evi dence was introduced indicating that the Secretary ordered the compensation of underpaid employees from the payments withheld, this Court finds that no such order was issued. Assuming arguendo that compliance with § 352" }, { "docid": "22705491", "title": "", "text": "period. Begier therefore contends that no trust was ever created with respect to those funds and that the funds paid to the IRS were therefore property of the debtor. We disagree. The Internal Revenue Code directs “every person receiving any payment for facilities or services” subject to excise taxes to “collect the amount of the tax from the person making such payment.” § 4291. It also requires that an employer “collec[t]” FICA taxes from its employees “by deducting the amount of the tax from the wages as and when paid.” § 3102(a) (emphasis added). Both provisions make clear that the act of “collecting” occurs at the time of payment—the recipient’s payment for the service in the case of excise taxes and the employer’s payment of wages in the case of FICA taxes. The mere fact that AIA neither placed the taxes it collected in a segregated fund nor paid them to the IRS does not somehow mean that AIA never collected the taxes in the first place. The same analysis applies to taxes the Internal Revenue Code requires that employers “withhold.” Section 3402(a) (1) requires that “every employer making payment of wages shall deduct and withhold upon such wages [the employee’s federal income tax].” (Emphasis added.) Withholding thus occurs at the time of payment to the employee of his net wages. S. Rep. No. 95-1106, p. 33 (1978) (“[A]ssume that a debtor owes an employee $100 for salary on which there is required withholding of $20. If the debtor paid the employee $80, there has been $20 withheld. If, instead, the debtor paid the employee $85, there has been withholding of $15 (which is not property of the debtor’s estate in bankruptcy)”). See Slodov, 436 U. S., at 243 (stating that “[t]here is no general requirement that the withheld sums be segregated from the employer’s general funds,” and thereby necessarily implying that the sums are “withheld” whether or not segregated). The common meaning of “withholding” supports our interpretation. See Webster’s Third New International Dictionary 2627 (1981) (defining “withholding” to mean “the act or procedure of deducting a tax payment from" }, { "docid": "11701619", "title": "", "text": "contract, in the employ of the Contractor or any subcontractor contracting for any part of said work contemplated, shall be required or permitted to work more than eight hours in any one calendar day upon such work, except upon the condition that compensation is paid to such laborer or mechanic in accordance with the provisions of this clause. The wages of every laborer and mechanic employed by the Contractor or any subcontractor engaged in the performance of this contract shall be computed on a basic day rate of eight hours per day and work in excess of eight hours per day is permitted only upon the condition that every such laborer and mechanic shall be compensated for all hours worked in excess of eight hours per day at not less than one and one-half times the basic rate of pay. For each violation of the requirements of this clause a penalty of five dollars shall be imposed for each laborer or mechanic for every calendar day in which such employee is required or permitted to labor more than eight hours upon said work without receiving compensation computed in accordance with this clause, and all penalties thus imposed shall be withheld for the use and benefit of the Government * * *. FUNDS TO ASSURE WAGE PAYMENT There may be withheld from the Contractor so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics employed by the Contractor or any subcontractor the full amount of wages required by this contract. In the event of failure to pay any laborer or mechanic all or part of the wages required by this contract, the Contracting Officer may take such action as may be necessary to cause the suspension, until such violations have ceased, of any further payment, advance, or guarantee of funds to or for the Government Prime Contractor. (e) Among the general conditions set out in the specifications were the following: GC-1. SCOPE OF WORK: The work to be performed under this contract consists of furnishing all plant, materials, equipment, supplies, labor, and transportation," }, { "docid": "19998116", "title": "", "text": "F.2d 1169, 1171 (Fed.Cir.), cert. denied, — U.S. —, 112 S.Ct. 406, 116 L.Ed.2d 354 (1991) (quoting Heisig v. United States, 719 F.2d 1153, 1158 (Fed.Cir.1983)). “This court reviews a dismissal for lack of jurisdiction de novo, jurisdiction being a question of law.” Transamerica Ins. Corp. v. United States, 973 F.2d 1572, 1576 (Fed.Cir.1992). Likewise, “[tjhis Court reviews the propriety of a summary judgment decision de novo.” Dehne v. United States, 970 F.2d 890, 892 (Fed.Cir.1992) (citing National Cable Television Ass’n v. American Cinema Editors, Inc., 937 F.2d 1572, 1576 (Fed.Cir.1991)). II. ANALYSIS A. Jurisdiction: Counts I-III Although Emerald Maintenance established the proper test for determining jurisdiction over claims such as these, the Claims Court erred in concluding that Emerald Maintenance is factually indistinguishable from Counts I — III in this case. In Emerald Maintenance, the DOL issued a ruling stating that the contractor, Emerald Maintenance, had not properly classified its roofer employees and that it was required to pay those employees increased wages. The contractor did not challenge the DOL’s ruling through the DOL’s administrative process and did not pay its employees the increased wages. The contracting officer eventually withheld from the contractor the amounts necessary to pay the increased wages under a provision of the contract which allows the contracting officer to withhold “so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics ... the full amount of wages required by the contract.” 925 F.2d at 1427 & n. 1. Emerald Maintenance then submitted a claim to the contracting officer for payment of the withheld money. The contracting officer denied the claim and Emerald Maintenance appealed to the Board. Before the Board, Emerald Maintenance relied on three alternative legal theories to support its right to recovery: defective specification, misrepresentation, and mutual mistake. Id. at 1427. The Board dismissed for lack of jurisdiction with respect to the first two theories and ruled in favor of the government with respect to the mutual mistake theory. In affirming the Board’s dismissal for lack of jurisdiction, the Emerald Maintenance court concluded that Emerald Maintenance’s" }, { "docid": "22705492", "title": "", "text": "Revenue Code requires that employers “withhold.” Section 3402(a) (1) requires that “every employer making payment of wages shall deduct and withhold upon such wages [the employee’s federal income tax].” (Emphasis added.) Withholding thus occurs at the time of payment to the employee of his net wages. S. Rep. No. 95-1106, p. 33 (1978) (“[A]ssume that a debtor owes an employee $100 for salary on which there is required withholding of $20. If the debtor paid the employee $80, there has been $20 withheld. If, instead, the debtor paid the employee $85, there has been withholding of $15 (which is not property of the debtor’s estate in bankruptcy)”). See Slodov, 436 U. S., at 243 (stating that “[t]here is no general requirement that the withheld sums be segregated from the employer’s general funds,” and thereby necessarily implying that the sums are “withheld” whether or not segregated). The common meaning of “withholding” supports our interpretation. See Webster’s Third New International Dictionary 2627 (1981) (defining “withholding” to mean “the act or procedure of deducting a tax payment from income at the source”) (emphasis added). Our reading of § 7501 is reinforced by § 7512, which permits the IRS, upon proper notice, to require a taxpayer who has failed timely “to collect, truthfully account for, or pay over [trust-fund taxes],” or who has failed timely “to make deposits, payments, or returns of such tax,” § 7512(a)(1), to “deposit such amount in a separate account in a bank . . . and . . . keep the amount of such taxes in such account until payment over to the United States,” § 7512(b). If we were to read § 7501 to mandate segregation as a prerequisite to the creation of the trust, § 7512’s requirement that funds be segregated in special and limited circumstances would become superfluous. Moreover, petitioner’s suggestion that we read a segregation requirement into § 7501 would mean that an employer could avoid the creation of a trust simply by refusing to segregate. Nothing in § 7501 indicates, however, that Congress wanted the IRS to be protected only insofar as dictated by" }, { "docid": "11322140", "title": "", "text": "final paychecks, claiming that these amounts would not be earned until each plaintiff’s individual employment anniversary date later in 1982. The union filed a grievance on behalf of the employees whose wages had been withheld, and each of the plaintiffs made written and oral demands upon defendant for payment. On April 2, 1982, plaintiffs filed individual actions in state court, seeking payment of the withheld vacation amounts and civil penalties under S.C.Code § 41-11-170. On April 7, 1982, the parties settled the grievances by agreeing that plaintiffs would be paid the amounts withheld by defendant and that employees laid off in the future would not have to reimburse defendant for unearned vacation, although employees otherwise leaving the defendant’s employ would be so liable. Defendant did not immediately pay the disputed amounts. Instead, it wrote to the employees seeking releases. It paid the disputed amounts to the four who gave releases. On April 23, 1982, defendant removed the state suits to federal court. The parties submitted stipulations of fact, and the district court conducted a bench trial in July, 1984. It held that defendant had no right to withhold the disputed vacation pay, and that defendant was liable for accrued vacation pay until it paid each plaintiff the withheld amounts. Plaintiffs appealed, contending that they should have received their full wages for the penalty period, rather than just their vacation pay. Defendant cross-appealed, contending that it was not liable at all to these plaintiffs because the collective bargaining agreement permitted it to withhold the amounts in dispute and because South Carolina’s wage claim statute does not apply if there is a bona fide dispute over the amount of wages due. II. The defendant removed the state actions to federal district court. Although plaintiffs have not questioned the district court’s jurisdiction, lack of subject matter jurisdiction is an issue that requires sua sponte consideration when it is seriously in doubt. Having such a doubt, we directed the parties to address the issue. The relevant portion of the removal statute provides that “any civil action brought in a State court of which the" }, { "docid": "10177794", "title": "", "text": "re American Mariner Industries, Inc., 734 F.2d 426, 429 (9th Cir.1984); In re Ellsworth, 722 F.2d 1448 (9th Cir.1984). There is no dispute concerning the facts herein; accordingly, our review is de novo. DISCUSSION The IRS contends that the bankruptcy court erred in allowing the debtor to designate the allocation of its payments on pre-petition tax obligations. It argues that the payments made in bankruptcy proceedings are involuntary, thereby precluding the debtor from designating the allocation of the funds. In the present case, the tax liability which exists arose from the non-payment of taxes which were to have been withheld from employees’ wages. As set forth in 26 U.S.C. Section 3402(a), each employer is required to deduct and withhold a portion of those wages on behalf of the employee. Further, pursuant to Section 7501, those amounts withheld by the employer “shall be held to be a special fund in trust for the United States.” Muntwyler v. United States, 703 F.2d 1030, 1032 (7th Cir.1983). Liability for these “trust funds” is imposed first upon the employer, pursuant to Sections 3102(a) and 3403. In addition to this liability to pay over the withheld “trust funds” to the IRS, the Tax Code also provides for a penalty for noncompliance with the provisions. Failure to provide these “trust funds” to the IRS can result in a penalty, imposed as a personal liability upon the person required to withhold such funds, in an amount equal to that amount not collected by the IRS, see 26 U.S.C. Section 6672, known as the “100-percent penalty.” The personal liability of the employer and the “100-percent penalty” are to help ensure payment of the taxes withheld from employees’ wages. In the present case, the bulk of the taxes owing to the IRS are “trust funds.” By designating the allocation of payments to the IRS, the debtor company is able to reduce the personal liability of the corporate member responsible for maintaining the “trust funds.” Conversely, the IRS desires to allocate the payments to non-trust fund liabilities, leaving in place the personal liability of the corporate member, as well as" }, { "docid": "11121272", "title": "", "text": "F.2d 118: “ * * * that when an employer withholds the tax from an employee’s wage and pays him the balance the employee has been paid in full. He has received his full wage. Part of it has gone to pay his withholding tax and the balance he has. The employer has discharged his contrae-tual obligation to pay the full wage. Thereafter there remains only his liability for the tax which he has collected. That is a tax liability for which he alone is liable to the Government as for any other taxes which he may owe.” 201 F.2d at page 120. That decision was adhered to by the Tenth Circuit in U. S. v. Zschach Construction Co., 209 F.2d 347, and followed by the Ninth Circuit in Westover v. William Simpson Construction Co., 209 F.2d 908 and Fireman’s Fund Indemnity Co. v. U. S., 210 F.2d 472, and by the Fifth Circuit in General Casualty Co. of America v. U. S., 205 F.2d 753. It is supported by Central Bank v. U. S., 345 U.S. 639, 73 S.Ct. 917, 97 L.Ed. 1312, in which it was held that the Government’s claim against the contractor for amounts withheld could not be set off against amounts due the contractor’s assignee because of the provision of the Assignment of Claims Act, 54 Stat. 1029, 31 U.S.C.A. § 203, that “ ‘such payments shall not be subject to reduction or set-off for any indebtedness of the assignor to the United States arising independently of such contract.’ ” The Supreme Court said: “The requirement that Graham withhold taxes from the ‘payment of wages’ to its employees and pay the same over to the United States did not arise from the contract. The requirement is squarely imposed by §§ 1401 and 1622 of the Internal Revenue Code. Without a government contract Graham would owe the statutory duty to pay over the taxes due, just as it would to pay its income tax on profits earned. Graham’s embezzlement lay neither in execution nor in breach of the contract. It arose from the conversion of the" }, { "docid": "17561831", "title": "", "text": "the prevailing wage. § 1775. A withholding order can only be issued after a full investigation by DLSE or the awarding body, unless the withholding is from the final payment to be made to the prime contractor. § 1727. If the violator is a subcontractor, the prime contractor is authorized to withhold an equivalent amount from its payments to the subcontractor. § 1729. All of these provisions must be incorporated into all public works contracts. Cal. Admin. Code, Title 8, § 16430. A notice to withhold to an awarding body is a standard procedure utilized by DLSE, but no notice or hearing is required prior to its issuance. DLSE is not required to produce any evidence of a violation of the law, no specific standard is applied in determining whether to issue a notice to withhold, and no procedure exists to guard against the issuance of improper or excessive notices to withhold. Moreover, while DLSE has no formal procedures for conducting investigations, as a general rule, information from a witness/informant must be verified with an independent source. In addition, recommendations to withhold must be reviewed by a supervisor. The exclusive remedy after withholding is a lawsuit by the prime contractor against the awarding body for recovery of the money withheld. §§ 1730-33. Such a suit must be filed within 90 days of the withholding, and the contractor bears the burden of establishing that there was no violation. § 1733. DLSE may defend the lawsuit upon request by the awarding body. Id. Subcontractors are not given the right to bring suit, although a prime contractor is allowed to assign its right to sue. Id. If a suit is not brought within 90 days, the state disburses the withheld funds to the underpaid workers; if a suit is brought within this period, then the money is held in escrow until its resolution. § 1731. C.The Dispute This case arose when DLSE issued three withholding notices against G & G for a total of at least $120,000. The notices were for three separate projects on which G & G had served as a" }, { "docid": "11701620", "title": "", "text": "labor more than eight hours upon said work without receiving compensation computed in accordance with this clause, and all penalties thus imposed shall be withheld for the use and benefit of the Government * * *. FUNDS TO ASSURE WAGE PAYMENT There may be withheld from the Contractor so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics employed by the Contractor or any subcontractor the full amount of wages required by this contract. In the event of failure to pay any laborer or mechanic all or part of the wages required by this contract, the Contracting Officer may take such action as may be necessary to cause the suspension, until such violations have ceased, of any further payment, advance, or guarantee of funds to or for the Government Prime Contractor. (e) Among the general conditions set out in the specifications were the following: GC-1. SCOPE OF WORK: The work to be performed under this contract consists of furnishing all plant, materials, equipment, supplies, labor, and transportation, including fuel, power, water (except any materials, equipment, utility or service, if any, specified herein to be furnished by the Government), and performing all work as required in the statement of work in the contract, in strict accordance with the specifications, schedules, and drawings, all of which are made a part hereof * * *. ^ ❖ ❖ GC-3. SITE INVESTIGATION AND REPRESENTATIONS : The contractor acknowledges that he has satisfied himself as to the nature and location of the work, the general and local conditions, including but not limited to those bearing upon transportation, disposal, handling and storage of materials, availability of labor, water, electric power, roads and uncertainties of weather, river stages, tides or similar physical conditions at the site, the conformation and conditions of the ground, the character of equipment and facilities needed preliminary to and during prosecution of the work. * * * Any failure by the contractor to acquaint himself with the available information will not relieve him from responsibility for estimating properly the difficulty or cost of successfully performing" }, { "docid": "10219624", "title": "", "text": "by employers to report (1) employees’ income taxes withheld from wages, (2) employees’ FICA (social security) withheld from wages, and (3) the employer’s contributions to employees’ FICA. The first two categories are internal revenue taxes which the employer is “required to collect or withhold ... from any other person and pay over” to the United States under § 7501(a) of the Internal Revenue Code. That section is a congressional recognition of the character of withheld taxes. Slodov v. United States, 436 U.S. 238, 98 S.Ct. 1778, 56 L.Ed.2d 251 (1978). The legislative history accompanying § 547 of the Bankruptcy Code supports the position that a person having a duty to withhold taxes is holding the money in trust until it can be turned over to the United States. The House Report on § 547 states: A payment of withholding taxes constitutes a payment of money held in trust under Internal Revenue Code Section 7501(a), and thus will not be a preference because the beneficiary of the trust, the taxing authority is in a separate class with respect to those taxes, if they have been properly held for payment, as they will have been if the debtor is able to make the payments. (Emphasis added). H.R. No. 595, 95th Cong., 1st Sess. 373 (1977); reprinted in 1978 U.S.Code Cong., & Ad.News 5787, 5963, 6329. Moreover, the legislative history accompanying Section 541(a) which delineates property of the bankruptcy estate, supports the IRS’ contention that withholding taxes are trust funds and, accordingly, shielded from a preference attack. It states: [PJroperty of the estate does not include the beneficial interest in property held by the debtor as a trustee. Under the Internal Revenue Code of 195J (Section 7501), the amounts of withheld taxes are held to be a special fund in trust for the United States. [AJmounts of withheld taxes are held by the debtor in a trust relationship and, consequently ... such amounts are not property of the estate. (Emphasis added). 124 Cong.Rec. H11,114 (daily ed. Sept. 28, 1978); S17, 430-31 (daily ed. Oct. 6, 1978). The trustee contends that the failure of" } ]

[ { "docid": "19027043", "title": "", "text": "counsel made a motion for a directed verdict the court granted a motion for an involuntary dismissal under Rule 41(b), Federal Rules of Civil Procedure. Since the case was being tried with a jury a motion for a directed verdict under Rule 50(a), Federal Rules of Civil Procedure, was the more appropriate motion. Kingston v. McGrath, 9 Cir., 1956, 232 F.2d 495, 54 A.L.R.2d 267. However, since the record discloses no findings as required by Rule 41(b) we shall treat the judgment as one entered upon a directed verdict pursuant to Rule 50(a). Makowsky v. Povlick, 3 Cir., 1959, 262 F.2d 13; Meyonberg v. Pennsylvania R. Co., 3 Cir., 1947, 165 F.2d 50. On a motion for a directed verdict the evidence adduced by the plaintiff and all reasonable inferences to be drawn therefrom are to be viewed in a light most favorable to him. Webb. v. Illinois Central R. Co., 1957, 352 U.S. 512, 77 S. Ct. 451, 1 L.Ed.2d 503; Shiffler v. Pennsylvania R. Co., 3 Cir., 1949, 176 F.2d 368; McCracken v. Richmond, Fredericksburg & Potomac R. Co., 4 Cir., 1957, 240 F.2d 484. The trial court may not weigh the evidence since this is the function of the jury. Webb v. Illinois Central R. Co., supra; McCracken v. Richmond, Fredericksburg & Potomac R. Co., supra. Viewed in this perspective “* * * the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence.” Rogers v. Missouri Pacific R. Co., 1957, 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493. The Supreme Court has emphatically stated that these actions are solely for the jury “* * * in all but the infrequent cases where fair-minded jurors cannot honestly differ whether the fault of the employer played any part in the employee’s" } ]

[ { "docid": "2085521", "title": "", "text": "recover damages under the FELA for the aggravation, resulting from his discharge, of the emotional condition and anxiety he originally developed because of the collision. We conclude that such claims are not cognizable under the FELA, and therefore, evidence relating to Lewy’s discharge was not relevant in the present action, and was properly excluded by the trial court. See Fed.R.Evid. 402. 1. Scope of the FELA’s Coverage The FELA was originally enacted by Congress in 1906 in order to “create[ ] a tort remedy for railroad workers injured on the job.” Lancaster v. Norfolk and Western Railway Co., 773 F.2d 807, 812 (7th Cir.1985); see Yawn v. Southern Railway Co., 591 F.2d 312, 317 (5th Cir.), cert. denied, 442 U.S. 934, 99 S.Ct. 2869, 61 L.Ed.2d 304 (1979). The statute’s main purpose was to enable injured railroad workers to overcome a number of traditional defenses to tort liability that had previously operated to bar their actions, including contributory negligence, contractual waiver of liability, the fellow-servant rule, and assumption of the risk. See Lancaster, 773 F.2d at 813; 45 U.S.C. §§ 51, 53-55; H.R.Rep. No. 1386, 60th Cong., 1st Sess. (1908); S.Rep. No. 460, 60th Cong., 1st Sess. (1908); S.Rep. No. 661, 76th Cong., 1st Sess. (1939). It was passed in “response to the special needs of railroad workers,” Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 329, 78 S.Ct. 758, 762, 2 L.Ed.2d 799 (1958), and must “be construed liberally for [their] protection.” Fox v. Consolidated Rail Corp., 739 F.2d 929, 931 (3d Cir.1984), cert. denied, 469 U.S. 1190, 105 S.Ct. 962, 83 L.Ed.2d 968 (1985); accord Sowards v. Chesapeake and Ohio Railway Co., 580 F.2d 713, 714 (4th Cir.1978). As the Supreme Court has stated, restriction[s] as to the kinds of employees covered, the degree of negligence required, or the particular sorts of harms inflicted, would be contradictory to the wording, the remedial and humanitarian purpose, and the constant and established course of liberal construction of the Act followed by this Court. Urie v. Thompson, 337 U.S. 163, 181-82, 69 S.Ct. 1018, 1030, 93 L.Ed. 1282 (1949). Section" }, { "docid": "3835936", "title": "", "text": "an employee of the railroad company within the purpose and spirit of the Federal Employers’ Liability act. Affirmed. . Lane v. Gorman, 347 F.2d 332 (10th Cir. 1965). . Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969). . Boeing Company v. Shipman, 411 F.2d 365 (5th Cir. 1969); Denver and Rio Grande Western Railroad Co. v. Conley, 293 F.2d 612 (10th Cir. 1961); Fleming v. Kellett, 167 F.2d 265 (10th Cir. 1948). . Murray v. Denver and Rio Grande Western Railroad Co., 229 F.2d 644 (10th Cir. 1956). . Webb v. Illinois C. R. Co., 352 U.S. 512, 515, 77 S.Ct. 451, 1 L.Ed.2d 503 (1957). . Tennant v. Peoria & Pekin Union R. Co., 321 U.S. 29, at 35, 64 S.Ct. 409, at 412 (1944); see Lane v. Gorman, 347 F.2d 332 (10th Cir. 1965). . See Shenker v. Baltimore and Ohio Railroad Co., 374 U.S. 1, 83 S.Ct. 1667, 10 L.Ed.2d 709 (1963). . Urie v. Thompson, 337 U.S. 163, 182, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). . Baker v. Texas & Pacific R. Co., 359 U.S. 227, at 228, 79 S.Ct. 664, at 665, 3 L.Ed.2d 756 (1959). . Byrne v. Pennsylvania Railroad Company, 262 F.2d 906, 912 (3d Cir. 1959). . Ward v. Atlantic Coast Line R. Co., 362 U.S. 396, 80 S.Ct. 789, 4 L.Ed.2d 820 (1960); Baker v. Texas & Pacific R. Co., 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 756 (1959). . Cimorelli v. New York Cent. R. Co., 148 F.2d 575, 577 (6th Cir. 1945). . Ward v. Atlantic Coast Line R. Co., 362 U.S. 396, 400, 80 S.Ct. 789, 4 L.Ed.2d 820 (1960). . The district court relied on Pennsylvania R. Co. v. Barlion, 172 F.2d 710 (6th Cir. 1949). In addition, see Baker v. Texas & Pac. R. Co., 359 U.S. 227, 79 S.Ct. 664, 3 L.Ed.2d 756 (1959); Smith v. Norfolk & Western Ry. Co., 407 F.2d 501 (4th Cir. 1969); Pennsylvania R. Co. v. Roth, 163 F.2d 161 (6th Cir. 1947); Cimorelli v. New York Cent. R. Co., 148 F.2d 575 (6th Cir. 1945);" }, { "docid": "2312958", "title": "", "text": "not contain any medical opinion as to causation from any one of the numerous doctors whom plaintiff has consulted, and there is no indication that such evidence is available.” Id. at 696. However, the court expressed reservations about its Bullard decision. “The second impact of Buell is that, at the very least, it throws doubt on the doctrine attributed to us in Bullard that damages may not be awarded for mental or emotional injuries unaccompanied by physical injury.” Id. at 694 (emphasis added). Consequently, the court finds the decisions cited by Conrail unpersuasive and concludes that the injury alleged is cognizable under the FELA. (b) The plaintiffs work involved interstate transport. It is undisputed that Halko’s work involved interstate commercial transport. This part of the test is easily satisfied. (c) Conrail’s negligence. In order to recover under the FELA, the employee must show that the employer was negligent. The court’s analysis here undertakes a twofold approach. One, whether Conrail owed a duty to Halko to prevent the alleged harassment, and two, what the scope of that duty was in terms of foreseeability. In reference to the duty owed to Halko, Conrail clearly owed him a safe place in which to work. Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943). Turning to the scope of that duty, reasonable foreseeability of harm is an essential ingredient of Federal Employers’ Liability Act negligence. Gallick v. Baltimore & O.R.R., 372 U.S. 108, 117, 83 S.Ct. 659, 665, 9 L.Ed.2d 618 (1963); Scocozza v. Erie R. Co., 171 F.2d 745, 746-47 (2d Cir.), cert. denied, 337 U.S. 907, 69 S.Ct. 1048, 93 L.Ed. 1719 (1949). The court will be guided by the principle that it “is well established that the role of the jury is significantly greater in Jones Act and FELA cases than in common law negligence actions. The right of the jury to pass upon the question of fault and causation must be most liberally viewed.” Johannessen v. Gulf Trading & Transp. Co., 633 F.2d 653, 656 (2d Cir.1980). As to whether the suicide was foreseeable" }, { "docid": "12157516", "title": "", "text": "special knowledge from the use of which it can reasonably perceive the potential for danger. “Then and only then,” it is insisted, “does the duty of ordinary care for the safety of other employees arise.” We are unable to find support for this restrictive view of a railroad's duty under the F.E.L.A. Case law clearly establishes that under the Act liability for negligence attaches if the railroad “knew, or by the exercise of due care should have known” of the danger or risk to an employee. Urie v. Thompson, 337 U.S. 163, 178, 69 S.Ct. 1018, 93 L.Ed. 1282 (1948). The applicable standard or test for negligence under this statute, as the trial court charged, is simply the failure to use ordinary care under the circumstances in the management of the railroad’s affairs. See Harrison v. Missouri P.R. Co., 372 U.S. 248, 83 S.Ct. 690, 9 L.Ed.2d 711 (1963), and Gallick v. Baltimore & O.R. Co., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed. 2d 618 (1963). The trial court properly rejected instructions which would have gone beyond this measure of care and would have required the jury to find actual knowledge of the disease or knowledge of special facts from which the railroad could reasonably perceive the potential for danger. Ample evidence was presented to justify the court in submitting to the jury the question of ordinary care. Without detailing all of the evidence, it was shown that appellee was required to work near the afflicted employee; and that such employee for a considerable period of time exhibited a pallid appearance and gave other signs of illness, including constant coughing and loss of weight. The jury could reasonably find that the railroad with admitted knowledge of these facts failed to meet the required standard of ordinary care. That the appellee did in fact con tract the disease from her fellow employee in the course of her employment is not seriously questioned. We find it to be immaterial, insofar as the railroad’s duty of care is concerned, that the environment in which appellee worked —that of ‘a typical downtown office" }, { "docid": "12157515", "title": "", "text": "to work. The district court submitted the case to a jury which returned a verdict in her favor in the amount of $45,000.00. The railroad perfected its appeal to this Court. Appellant phrases the first issue as follows: “Under the Federal Employers’ Liability Act is a railroad under a duty to its employees to remove from his post a fellow employee who is afflicted with a contagious but nonoccupational disease, until the railroad actually perceives the potential for danger in him?” In arguing that the trial court erroneously answered this question in the affirmative, the railroad points out that the afflicted employee’s condition con-cededly did not result from his employment. A further facet of the railroad’s argument is that the law imposes no requirement that a reasonably prudent employer must equip himself with special knowledge or expertise in the field of contagious diseases not indigenous to the employer’s business. The railroad insists that liability can arise only if it should happen to acquire actual knowledge of the existence of the disease in an employee, or special knowledge from the use of which it can reasonably perceive the potential for danger. “Then and only then,” it is insisted, “does the duty of ordinary care for the safety of other employees arise.” We are unable to find support for this restrictive view of a railroad's duty under the F.E.L.A. Case law clearly establishes that under the Act liability for negligence attaches if the railroad “knew, or by the exercise of due care should have known” of the danger or risk to an employee. Urie v. Thompson, 337 U.S. 163, 178, 69 S.Ct. 1018, 93 L.Ed. 1282 (1948). The applicable standard or test for negligence under this statute, as the trial court charged, is simply the failure to use ordinary care under the circumstances in the management of the railroad’s affairs. See Harrison v. Missouri P.R. Co., 372 U.S. 248, 83 S.Ct. 690, 9 L.Ed.2d 711 (1963), and Gallick v. Baltimore & O.R. Co., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed. 2d 618 (1963). The trial court properly rejected instructions which would" }, { "docid": "23518342", "title": "", "text": "between the District of Columbia and any of the States or Territories, or between the District of Columbia and any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment. In order to recover pursuant to the FELA, a plaintiff must show that he was injured while in the scope of his employment, which employment is in furtherance of the railroad’s interstate transportation business, that his employer was negligent, and that his employer’s negligence played some part in causing the injury for which compensation is sought under FELA. Sowards, 580 F.2d at 714; Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 330, 78 S.Ct. 758, 762, 2 L.Ed.2d 799 (1958); Moore, 340 U.S. at 575, 71 S.Ct. at 429; Urie v. Thompson, 337 U.S. 163, 174-77, 69 S.Ct. 1018, 1026-28, 93 L.Ed. 1282 (1949); Armstrong v. Kansas City Southern Railway Co., 752 F.2d 1110, 1113 (5th Cir.1985); Mendoza, 733 F.2d at 632; Davis v. Burlington Northern, Inc., 541 F.2d 182, 185 (8th Cir.), cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 613 (1976); Rodriquez, 473 F.2d at 820; Tyree v. New York Central Railroad Co., 382 F.2d 524, 527 (6th Cir.), cert. denied, 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967); Sano v. Pennsylvania Railroad Co., 282 F.2d 936, 937-38 (3d Cir.1960); McCracken v. Richmond, Fredericksburg and Potomac Railroad Co., 240 F.2d 484," }, { "docid": "2085522", "title": "", "text": "at 813; 45 U.S.C. §§ 51, 53-55; H.R.Rep. No. 1386, 60th Cong., 1st Sess. (1908); S.Rep. No. 460, 60th Cong., 1st Sess. (1908); S.Rep. No. 661, 76th Cong., 1st Sess. (1939). It was passed in “response to the special needs of railroad workers,” Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 329, 78 S.Ct. 758, 762, 2 L.Ed.2d 799 (1958), and must “be construed liberally for [their] protection.” Fox v. Consolidated Rail Corp., 739 F.2d 929, 931 (3d Cir.1984), cert. denied, 469 U.S. 1190, 105 S.Ct. 962, 83 L.Ed.2d 968 (1985); accord Sowards v. Chesapeake and Ohio Railway Co., 580 F.2d 713, 714 (4th Cir.1978). As the Supreme Court has stated, restriction[s] as to the kinds of employees covered, the degree of negligence required, or the particular sorts of harms inflicted, would be contradictory to the wording, the remedial and humanitarian purpose, and the constant and established course of liberal construction of the Act followed by this Court. Urie v. Thompson, 337 U.S. 163, 181-82, 69 S.Ct. 1018, 1030, 93 L.Ed. 1282 (1949). Section 1 of the FELA, 45 U.S.C. § 51, which is the act’s main liability provision, provides that “[e]very common carrier by railroad ... shall be liable in damages to [employees] ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.” Because of its broad intended scope and somewhat open-ended wording, see Urie, 337 U.S. at 181, 69 S.Ct. at 1030; Buell, 771 F.2d at 1322, this provision has been interpreted to cover at least some intentional torts as well as negligent acts. See Jamison v. Encarnacion, 281 U.S. 635, 641, 50 S.Ct. 440, 443, 74 L.Ed. 1082 (1930) (foreman’s unprovoked assault on a longshoreman, designed to increase his productivity, is “negligent” as that term is used in the FELA); New York Central Railroad Co. v. Winfield, 244 U.S. 147, 152, 37 S.Ct. 546, 548, 61 L.Ed. 1045 (1917); Taylor, 787 F.2d at 1314-15; Lancaster, 773 F.2d at 812-13, 817-29. It has also been interpreted to cover negligent acts that" }, { "docid": "14660860", "title": "", "text": "its agents or employees which results in injury to an employee. Inman v. Baltimore & O. R. R., 361 U.S. 138, 80 S.Ct. 242, 4 L.Ed.2d 198 (1959); Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497 (1949). Reasonable foreseeability of harm is an essential ingredient of negligence under the Act. Gallick v. Baltimore & O. R. R., 372 U.S. 108, 117, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963); Rogers v. Missouri Pac. R. R., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); Rubley v. Louisville & Nashville R. R., 208 F.Supp. 798, 802 (E.D. Tenn.1962). However, foreseeability of the harm that actually occurred is not required. “ * * * a tort feasor must compensate his victim for even the improbable or unexpectedly severe consequences of his wrongful act.” 372 U.S. at p. 121, 83 S.Ct. at p. 667. Moreover the mere fact that the spraying activity was performed by employees of Nalco Company under a contract with defendant does not relieve defendant of fault attributable to employees of said company. Sinkler v. Missouri Pac. R. R., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799 (1958). Defendant had a non-delegable duty to furnish its employees a safe place to work. Payne v. Baltimore & O. R. R., 309 F.2d 546, 549 (6th Cir. 1962). What is reasonable care depends on the circumstances. Bailey v. Central Ver. Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943). The standard of care must be commensurate with the danger involved. Tiller v. Atlantic Coast Line R. R., 318 U.S. 54, 67, 63 S.Ct. 444, 87 L.Ed. 610 (1942). 7. In the matter at hand defendant urges that the railroad does not have a duty to warn of unusual or improbable occurrences which a reasonable and prudent man would not anticipate. See Burpo v. Chesapeake & O. Ry., 266 F.2d 512 (6th Cir. 1959); Santoro v. Lehigh Valley R. R., 148 F.Supp. 594 (D.N.J.1957). In this connection defendant offered evidence which showed that Nalco Company had sprayed thousands of miles of railroad right of way in" }, { "docid": "23518344", "title": "", "text": "487 (4th Cir.1957); Perkoski, 217 F.2d 642. Employer liability under the Act clearly extends to injuries caused by fellow employees. Sinkler, 356 U.S. at 330, 78 S.Ct. at 762. “[Rjeasonable foreseeability of harm is an essential ingredient of Federal Employers’ Liability Act negligence.” Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. 108, 117, 83 S.Ct. 659, 665, 9 L.Ed.2d 618 (1963); Harrison v. Missouri Pacific Railroad Co., 372 U.S. 248, 249, 83 S.Ct. 690, 690, 9 L.Ed.2d 711 (1963); Scocozza v. Erie R. Co., 171 F.2d 745, 746-47 (2d Cir.), cert. denied, 337 U.S. 907, 69 S.Ct. 1048, 93 L.Ed. 1719 (1949); Rubley v. Louisville & Nashville Railroad Co., 208 F.Supp. 798, 802 (E.D.Tenn.1962). “[A] railroad is guilty of negligence if it fails to prevent reasonably foreseeable danger to an employee from intentional or criminal misconduct.” Brooks v. Washington Terminal Co., 593 F.2d 1285, 1288 (D.C.Cir.), cert. denied, 442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275 (1979); Sowards, 580 F.2d at 715. In the context of conduct which violates an established standard, there must be evidence “of prior disregard of the rule which would ‘warrant [ ] a finding of the defendant’s knowledge of the practice and of its negligence in the performance of its duty to enforce the rule’.” Brooks, 593 F.2d at 1289-90. However, “the particular and exact manner of the accident need not be foreseen.” McCracken, 240 F.2d at 487. “The test of foreseeability does not require that the negligent person should have been able to foresee the injury in the precise form in which it in fact occurred. Rather it is sufficient if the negligent person might reasonably have foreseen that an injury might occur____” Miller v. Cincinnati, New Orleans & Texas Pacific Railway Co., 203 F.Supp. 107, 113 (E.D.Tenn.1962), aff'd, 317 F.2d 693 (6th Cir.1963). A railroad has no liability for an assault by one employee upon another in the absence of notice of the assaulter’s “vicious propensities” or where the working area is “not conducive to any unusual risk of assault.” Herold v. Burlington Northern, Inc., 342 F.Supp. 862, 864-65 (D.Minn.1972); Southern" }, { "docid": "8784529", "title": "", "text": "Pacific R. R. Co., 356 U.S. 326 [78 S.Ct. 758, 2 L.Ed.2d 799] (1958), controls the motion before this Court.” . Based on these and subsidiary facts, the jury in the lower court had found that Belt Railway was under the control and supervision of the Missouri Pacific. The state appellate court had reversed this finding as not supported by the evidence. The Supreme Court apparently disregarded it also in reaching its conclusion. See 356 U.S. at p. 331, 78 S.Ct. at 762 and footnote 2 of the dissenting opinion, 356 U.S. at p. 333, 78 S.Ct. at p. 763. Also, in Ward v. Atlantic Coast Line R. Co., 362 U.S. 396, 397, 80 S.Ct. 789, 4 L.Ed.2d 820 (1960), the Court stated Belt was an independent contractor. . Our attention has been directed to a California case, Mangrum v. Union Pacific Railroad Company, 230 Cal.App.2d 960, 41 Cal.Rptr. 536 (December 1964) in which a physician who was called by the railroad to attend a sick dining car employee was held to be an agent of the railroad under the expanded doctrine of Sinkler. But, insofar as that case held the service of the physician to be an “occupational activity” of the railroad and that the physician was an agent of the railroad, we do not find it even slightly persuasive. . Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497 (1949); Chesapeake & Ohio Ry. Co. v. Thomas, 198 F.2d 783 (4 Cir. 1952); Atlantic Coast Line R. Co. v. Craven, 185 F.2d 176 (4 Cir. 1950); Terminal R. Ass’n of St. Louis v. Howell, 165 F.2d 135 (8 Cir. 1948). . Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497 (1949); Ellis v. Union Pacific R. R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572 (1947); Bailey v. Central Vermont Ry., Inc., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943). . Terminal R. Ass’n of St. Louis v. Howell, 165 F.2d 135 (8 Cir. 1948). . American Pacific Whaling Co. v. Kristensen, 93 F.2d 17 (9 Cir. 1937);" }, { "docid": "16910361", "title": "", "text": "a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” Id. at 506, 77 S.Ct. 443. In Kernan [v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958)], we extended the reach of the principle of negligence per se to cover injuries suffered by employees as a result of their employers’ statutory violations, even if the injuries sustained were not of a type that the relevant statute sought to prevent. See id., 355 U.S. at 432-436, 78 S.Ct. 394. And in Urie [v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949)], we held that occupational diseases such as silicosis constitute compensable physical injuries under FELA, thereby rejecting the argument that the statute covered only injuries and deaths caused by accidents. See id., 337 U.S. at 181, 69 S.Ct. 1018. Gottshall, 512 U.S. at 542-43, 114 S.Ct. 2396. Although Gottshall characterizes Rogers as holding that a relaxed causation standard applies, Gottshall also reiterates the importance of common-law principles in interpreting the FELA. The Court explained that: “[T]he Federal Employers’ Liability Act is founded on common-law concepts of negligence and injury, subject to such qualifications as Congress has imported into those terms,” [Urie v. Thompson, 337 U.S. 163, 182, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949)]. Those qualifications, discussed above, are the modification or abrogation of several common-law defenses to liability, including contributory negligence and assumption of risk. See 45 U.S.C. §§ 51, 53-55. Only to the extent of these explicit statutory alterations is FELA “an avowed departure from the rules of the common law.” Sinkler v. Missouri Pacific R. Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799 (1958). Thus, although common-law principles are not necessarily dispositive of questions arising under FELA, unless they are expressly rejected in the text of the statute, they are entitled to great weight in our analysis. Cf. [Atchison, Topeka & Santa Fe Ry. Co. v.] Buell, 480 U.S. [557, 568, 107 S.Ct. 1410, 94" }, { "docid": "17524861", "title": "", "text": "carrier engaged in interstate commerce “liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier * * *Under this Act, the railroad will be liable if its negligence played any part, even the slightest, in producing the employee’s injury. Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957); Nivens v. St. Louis Southwestern Ry. Co., 425 F.2d 114, 118 (5th Cir.), cert. denied, 400 U.S. 879, 91 S.Ct. 121, 27 L.Ed.2d 116 (1970). However, to recover under the FELA, a plaintiff must still prove that the employer was negligent. Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 32, 64 S.Ct. 409, 88 L.Ed. 520 (1944); Chicago Great Western Ry. Co. v. Casura, 234 F.2d 441, 447 (8th Cir. 1956). In this respect, a plaintiff’s prima facie case under the Act must include all the same elements as are found in a common law negligence action. McGivern v. Northern Pacific Ry. Co., 132 F.2d 213, 217 (8th Cir. 1942). Included in the plaintiff’s prima facie case then is the element of foreseeability. To recover, the plaintiff must prove that the railroad, with the exercise of due care, could have reasonably foreseen that a particular condition could cause injury. Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 117, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963); Inman v. Baitimore & Ohio R.R. Co., 361 U.S. 138, 140, 80 S.Ct. 242, 4 L.Ed.2d 198 (1959). The defendant’s duty is measured by what a reasonably prudent person should or could have reasonably anticipated as occurring under like circumstances. Galiick v. Baltimore & Ohio R.R. Co., supra, 372 U.S. at 118, 83 S.Ct. 659. With this principle in mind, we proceed to examine the plaintiff’s specific allegations of negligence. In considering these contentions, we must be mindful of the posture of the case as it is now before us. The actual question" }, { "docid": "23518343", "title": "", "text": "which employment is in furtherance of the railroad’s interstate transportation business, that his employer was negligent, and that his employer’s negligence played some part in causing the injury for which compensation is sought under FELA. Sowards, 580 F.2d at 714; Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 330, 78 S.Ct. 758, 762, 2 L.Ed.2d 799 (1958); Moore, 340 U.S. at 575, 71 S.Ct. at 429; Urie v. Thompson, 337 U.S. 163, 174-77, 69 S.Ct. 1018, 1026-28, 93 L.Ed. 1282 (1949); Armstrong v. Kansas City Southern Railway Co., 752 F.2d 1110, 1113 (5th Cir.1985); Mendoza, 733 F.2d at 632; Davis v. Burlington Northern, Inc., 541 F.2d 182, 185 (8th Cir.), cert. denied, 429 U.S. 1002, 97 S.Ct. 533, 50 L.Ed.2d 613 (1976); Rodriquez, 473 F.2d at 820; Tyree v. New York Central Railroad Co., 382 F.2d 524, 527 (6th Cir.), cert. denied, 389 U.S. 1014, 88 S.Ct. 589, 19 L.Ed.2d 659 (1967); Sano v. Pennsylvania Railroad Co., 282 F.2d 936, 937-38 (3d Cir.1960); McCracken v. Richmond, Fredericksburg and Potomac Railroad Co., 240 F.2d 484, 487 (4th Cir.1957); Perkoski, 217 F.2d 642. Employer liability under the Act clearly extends to injuries caused by fellow employees. Sinkler, 356 U.S. at 330, 78 S.Ct. at 762. “[Rjeasonable foreseeability of harm is an essential ingredient of Federal Employers’ Liability Act negligence.” Gallick v. Baltimore & Ohio Railroad Co., 372 U.S. 108, 117, 83 S.Ct. 659, 665, 9 L.Ed.2d 618 (1963); Harrison v. Missouri Pacific Railroad Co., 372 U.S. 248, 249, 83 S.Ct. 690, 690, 9 L.Ed.2d 711 (1963); Scocozza v. Erie R. Co., 171 F.2d 745, 746-47 (2d Cir.), cert. denied, 337 U.S. 907, 69 S.Ct. 1048, 93 L.Ed. 1719 (1949); Rubley v. Louisville & Nashville Railroad Co., 208 F.Supp. 798, 802 (E.D.Tenn.1962). “[A] railroad is guilty of negligence if it fails to prevent reasonably foreseeable danger to an employee from intentional or criminal misconduct.” Brooks v. Washington Terminal Co., 593 F.2d 1285, 1288 (D.C.Cir.), cert. denied, 442 U.S. 910, 99 S.Ct. 2823, 61 L.Ed.2d 275 (1979); Sowards, 580 F.2d at 715. In the context of conduct which violates an established standard, there" }, { "docid": "782181", "title": "", "text": "for the construction, maintenance and operation of railroad facilities on the private property of G.M. G.M. must be held to know that F.E.L.A. governed the liability of Penn Central even though the operations were conducted on G.M.’s property. Wanser v. Long Island R.R., 288 F.2d 467 (2d Cir. 1956), cert. denied, 353 U.S. 911, 77 S.Ct. 668, 1 L.Ed.2d 665 (1957). Penn Central’s cross-claim was not predicated upon the general law of torts, but upon an indemnity agreement. The “acts or omissions” referred to in the indemnity provision should be held to mean any wrongful or negligent acts of G.M. which would impose liability upon the railroad under F.E.L.A. and not upon G.M.’s common law liability in tort to Schiller. Chicago, R. I. & P. R.R. v. Dobry Flour Mills, 211 F.2d 785 (10th Cir.), cert. denied, 348 U.S. 832, 75 S.Ct. 55, 99 L.Ed. 656 (1954). Penn Central owed to Schiller a nondelegable duty to provide him a safe place to work even though he was working on premises of G.M., over which premises it had no control. Shenker v. Baltimore & Ohio R.R., 374 U.S. 1, 83 S.Ct. 1667, 10 L.Ed.2d 709 (1963); Carter v. Union R.R., 438 F.2d 208 (3d Cir. 1971). In Payne v. Baltimore & Ohio R.R., 309 F.2d 546 (6th Cir. 1962), cert. denied, 374 U.S. 827, 83 S.Ct. 1865, 10 L.Ed.2d 1051 (1963), we held that the negligence of the owner of the premises was imputable to the railroad. We stated: A railroad has the nondelegable duty to provide an employee with a safe place to work. This is so despite the fact that it may not own, control or be under a primary obligation to maintain the premises on which the employee is injured. A railroad is not relieved from liability because such premises are unsafe or because of the existence of an unsafe condition brought about through the act of another and without fault, on the railroad’s part. Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799 (1958); Chicago Great Western Railway Company v. Casura," }, { "docid": "3716575", "title": "", "text": "413, 93 L.Ed. 497; Miller v. Cincinnati, New Orleans, and Texas Pacific Railway Co., 317 F.2d 693, 700 (6th Cir.). When an action is brought under the Federal Employers’ Liability Act, “the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury * * Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493. One of the obligations imposed upon an employer by the Federal Employers’ Liability Act is the duty to use reasonable care in furnishing his employees with a safe place to work. The reasonableness of the care exercised by the employer must be determined with a view toward the hazard involved in the place where the work is to be performed and the machinery which is being used. Bailey v. Central Vermont Ry., 319 U.S. 350, 353, 63 S.Ct. 1062, 87 L.Ed. 1444. In Bridger v. Union Railway Co., (6th Cir.), 355 F.2d 382, 386, this Court said: “The statute contemplates that the railroad furnish its employees with a reasonably safe place to work, but the rule does not contemplate absolute elimination of all dangers, but only the elimination of those dangers which could be removed by reasonable care on the part of the employer. Raudenbush v. B. & O. Railroad, 160 F.2d 363, (3rd Cir. 1947). The question is not whether the railroad has placed its employees in a locale which proved to be unsafe, but whether the railroad, by failing to exercise all reasonable care, participated in any manner to effect or permit the unsafe condition. Of course, ‘reasonable foreseeability of harm is [also] an essential ingredient of Federal Employers’ Liability Act negligence.’ Gallick v. B. & O. Railroad Co., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963).” Under Rogers v. Missouri Pacific R. Co., supra, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493, in order to grant a peremptory verdict for the defendant railroad, there must be no evidence from which the jury could find that" }, { "docid": "8784530", "title": "", "text": "of the railroad under the expanded doctrine of Sinkler. But, insofar as that case held the service of the physician to be an “occupational activity” of the railroad and that the physician was an agent of the railroad, we do not find it even slightly persuasive. . Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497 (1949); Chesapeake & Ohio Ry. Co. v. Thomas, 198 F.2d 783 (4 Cir. 1952); Atlantic Coast Line R. Co. v. Craven, 185 F.2d 176 (4 Cir. 1950); Terminal R. Ass’n of St. Louis v. Howell, 165 F.2d 135 (8 Cir. 1948). . Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497 (1949); Ellis v. Union Pacific R. R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572 (1947); Bailey v. Central Vermont Ry., Inc., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943). . Terminal R. Ass’n of St. Louis v. Howell, 165 F.2d 135 (8 Cir. 1948). . American Pacific Whaling Co. v. Kristensen, 93 F.2d 17 (9 Cir. 1937); Brittingham v. Ore S.S. Corp., 62 F.2d 616 (4 Cir. 1933). . Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960); Wilkerson v. McCarthy, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497 (1949); Bailey v. Central Vermont Ry., Inc., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943); Southern Ry. Co. v. Fox, 339 F.2d 560 (5 Cir. 1965); West v. United States, 256 F.2d 671 (3 Cir. 1958); 2 Norris, The Law of Seamen § 688 (2 ed. 1962). . Erie R. Co. v. Margue, 23 F.2d 664 (6 Cir. 1928); Eddings v. Collins Pine Co., 140 F.Supp. 622 (N.D.Cal.1956). SOBELOFF, Circuit Judge (dissenting) : In overturning these judgments in favor of one injured seaman and the surviving dependents of another, the court, I submit, takes too narrow a view of the Supreme Court’s holding in Sinkler v. Missouri Pacific R. R. Co., 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799 (1958). That case emphasizes that an “accommodating scope” must be given to the word" }, { "docid": "22825295", "title": "", "text": "1285, 1288 (D.C.Cir.1979); Sowards v. Chesapeake & Ohio Ry., 580 F.2d 713, 715 (4th Cir.1978) (per curiam). A challenge of an opposite kind — urging not that respondeat superior is too restrictive in FELA cases but that the employer cannot be liable under the FELA unless directly at fault — can be mounted from language in several cases that, read literally, makes the employer liable for an employee’s tort only if the employer was negligent in hiring, supervising, or failing to fire the intentional wrongdoer. See, e.g., Harrison v. Missouri Pac. R.R., 372 U.S. 248, 249, 83 S.Ct. 690, 9 L.Ed.2d 711 (1963) (per curiam) (“ ‘reasonable foreseeability of harm is an essential ingredient of Federal Employers’ Liability Act negligence,’ ” quoting Gallick v. Baltimore & Ohio R.R., 372 U.S. 108, 117, 83 S.Ct. 659, 665, 9 L.Ed.2d 618 (1963)); Green v. River Terminal Ry., 763 F.2d 805, 808-09 (6th Cir.1985) (same quotation). Such “direct negligence” by the employer — negligent hiring or retention of an incompetent employee — is a traditional basis for making an employer liable for his employee’s tort (see Prosser and Keeton, supra, § 33, at p. 203 and n. 1) and a basis that is independent of respondeat superior. But surely the cases we have cited do not really intend to make it the only basis. See, e.g., Brooks v. Washington Terminal Co., supra, 593 F.2d at 1288; Sowards v. Chesapeake & Ohio Ry., supra, 580 F.2d at 715. Otherwise the plaintiff in an FELA case would have fewer rights than an ordinary tort plaintiff, an unacceptable result once the statutory reference to negligence is understood to embrace intentional misconduct. In neither Harrison nor Green, moreover, could the plaintiff have won on the basis of respondeat superior, for in neither case was there a plausible argument that the employee-assailant was acting for the employer. Cf. Palmer v. Apex Marine Corp., 510 F.Supp. 72, 74 (W.D. Wash.1981). The plaintiff had to prove negligence by the employer and it was in this context that the courts said that proof of negligence is essential in an FELA case." }, { "docid": "23518350", "title": "", "text": "Island Railroad Co., 360 F.2d 369, 372 (2d Cir.1966); Gowins, 299 F.2d at 433; Fritts, 293 F.2d at 363; Chesapeake & Ohio Railway Co. v. Wells, 49 F.2d 251, 252 (6th Cir.), cert. denied, 284 U.S. 641, 52 S.Ct. 22, 76 L.Ed. 545 (1931); Simpkins v. Baltimore & Ohio Railroad Co., 449 F.Supp. 613, 615 (S.D.Ohio 1976). An action for violation of the BIA is prosecuted as an action under the FELA, Urie, 337 U.S. at 189 n. 30, 69 S.Ct. at 1034 n. 30; Lilly v. Grand Trunk Western Railroad Co., 317 U.S. 481, 485, 63 S.Ct. 347, 350, 87 L.Ed. 411 (1943), and the FELA causation standard applies, Carter v. Atlanta & St. Andrews Bay Railway Co., 338 U.S. 430, 434, 70 S.Ct. 226, 229, 94 L.Ed. 236 (1949). A plaintiff need not establish that the defect — the inoperative radio in this case — was the sole cause of injury. Carter, 338 U.S. at 435, 70 S.Ct. at 229 (contributory proximate cause is sufficient); Coray v. Southern Pacific Co., 335 U.S. 520, 523-24, 69 S.Ct. 275, 276-77, 93 L.Ed. 208 (1949); Peymann v. Perini Corp., 507 F.2d 1318, 1324 (1st Cir.1974), cert. denied, 421 U.S. 914, 95 S.Ct. 1572, 43 L.Ed.2d 780 (1975) (Jones Act); Hausrath v. New York Central Railroad Co., 401 F.2d 634, 637 (6th Cir.1968); Givens v. Missouri-Kansas-Texas R. Co. of Texas, 195 F.2d 225, 230 (5th Cir.1952). Causation is not established if the defect or unsafe condition “merely creates an incidental condition or situation in which the accident, otherwise caused, results in such injury.” Davis v. Wolfe, 263 U.S. 239, 243, 44 S.Ct. 64, 66, 68 L.Ed. 284 (1923). “Where there has been a failure of a required appliance, there is liability only where the failure of the appliance not only creates a condition under which, or an incidental situation in which the employee is injured, but where the defective appliance is itself an efficient cause of or the instrumentality through which the injury is directly brought about.” Reetz v. Chicago & Erie Railroad Co., 46 F.2d 50, 52 (6th Cir.1931); Anderson v." }, { "docid": "22825294", "title": "", "text": "working conditions. See H.R.Rep. No. 1386, supra, at 1. The idea that section 51 makes the railroad liable for the intentional torts of its employees outside of the scope of their employment was therefore quite properly rejected in the Copeland case, cited earlier, though over a vigorous dissent, compare 291 F.2d at 121-22 with id. at 122-24 (dissenting opinion), which persuaded the Sixth Circuit in Baker v. Baltimore & Ohio R.R., 502 F.2d 638, 641-42 (6th Cir.1974). Neither decision, however, considered the purpose of the statutory language that makes the railroad liable for the negligence of its employees. As we have said, the purpose was not to broaden the doctrine of respon-deat superior, least of all in intentional tort cases; it was to eliminate the fellow-serv ant rule. Consistently with Copeland, most cases (such as the Jamison and Slaughter cases cited earlier) assume that the employer’s liability for his employee’s intentional torts is to be determined in FELA cases by the usual principles of re-spondeat superior. See also Brooks v. Washington Terminal Co., 593 F.2d 1285, 1288 (D.C.Cir.1979); Sowards v. Chesapeake & Ohio Ry., 580 F.2d 713, 715 (4th Cir.1978) (per curiam). A challenge of an opposite kind — urging not that respondeat superior is too restrictive in FELA cases but that the employer cannot be liable under the FELA unless directly at fault — can be mounted from language in several cases that, read literally, makes the employer liable for an employee’s tort only if the employer was negligent in hiring, supervising, or failing to fire the intentional wrongdoer. See, e.g., Harrison v. Missouri Pac. R.R., 372 U.S. 248, 249, 83 S.Ct. 690, 9 L.Ed.2d 711 (1963) (per curiam) (“ ‘reasonable foreseeability of harm is an essential ingredient of Federal Employers’ Liability Act negligence,’ ” quoting Gallick v. Baltimore & Ohio R.R., 372 U.S. 108, 117, 83 S.Ct. 659, 665, 9 L.Ed.2d 618 (1963)); Green v. River Terminal Ry., 763 F.2d 805, 808-09 (6th Cir.1985) (same quotation). Such “direct negligence” by the employer — negligent hiring or retention of an incompetent employee — is a traditional basis for making" }, { "docid": "2312959", "title": "", "text": "that duty was in terms of foreseeability. In reference to the duty owed to Halko, Conrail clearly owed him a safe place in which to work. Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943). Turning to the scope of that duty, reasonable foreseeability of harm is an essential ingredient of Federal Employers’ Liability Act negligence. Gallick v. Baltimore & O.R.R., 372 U.S. 108, 117, 83 S.Ct. 659, 665, 9 L.Ed.2d 618 (1963); Scocozza v. Erie R. Co., 171 F.2d 745, 746-47 (2d Cir.), cert. denied, 337 U.S. 907, 69 S.Ct. 1048, 93 L.Ed. 1719 (1949). The court will be guided by the principle that it “is well established that the role of the jury is significantly greater in Jones Act and FELA cases than in common law negligence actions. The right of the jury to pass upon the question of fault and causation must be most liberally viewed.” Johannessen v. Gulf Trading & Transp. Co., 633 F.2d 653, 656 (2d Cir.1980). As to whether the suicide was foreseeable to Conrail, the Supreme Court has held that a railroad is liable for unexpectedly severe or even unlikely consequences of the wrongdoing. Gallick, 372 U.S. 108, 83 S.Ct. 659. This circuit has made its position quite clear. “[FJoreseeability of harm is no less a matter generally left to the jury’s broad decision than any other part of the requisite proof to recover under the FELA.” Burns v. Penn Central Co., 519 F.2d 512, 514 (2d Cir.1975). In Bums, the appellate court reversed the district court’s granting of the railroad’s motion for a directed verdict based on the alleged lack of foreseeability. In Bums, the plaintiff brought an action for the death of an employee caused by rifle shots. The court found that “[bjased on the railroad’s actual knowledge of stonings in the vicinity in recent months and its constructive (and indubitably actual) knowledge of the generally dangerous conditions prevailing in the neighborhood in which the fatality transpired, the jury would have acted well within its authority under the FELA by returning a verdict for Mrs." } ]

[ { "docid": "22536984", "title": "", "text": "prerequisites of § 1291. (S) In determining that the courts of appeals may exercise jurisdiction over an appeal' from a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds, we, of course, do not hold that other claims contained in the motion to dismiss are immediately appealable as well. United States v. Barket, 530 F. 2d 181 (CA8 1975), cert. denied, 429 U. S. 917 (1976). Our conclusion that a defendant may seek immediate appellate review of a district court’s rejection of his double jeopardy claim is based on the special considerations permeating claims of that nature which justify a departure from the normal rule of finality. Quite obviously, such considerations do not extend beyond the claim of former jeopardy and encompass other claims presented to, and rejected by, the district court in passing on the accused’s motion to dismiss. Rather, such claims are appealable if, and only if, they too fall within Cohen’s collateral-order exception to the final-judgment rule. Any other rule would encourage criminal defendants to seek review of, or assert, frivolous double jeopardy claims in order to bring- more serious, but otherwise nonappealable questions to the attention of the courts of appeals prior to conviction and sentence. Here, we think it clear that the District Court’s rej ection of petitioners’ challenge to the sufficiency of the indictment does not come within the Cohen exception. First, an order denying a motion to dismiss an indictment for failure to state an offense is plainly not “collateral” in any sense of that term; rather it goes to the very heart of the issues to be resolved at the upcoming trial. Secondly, the issue resolved adversely to petitioners is such that it may be reviewed effectively, and, if necessary, corrected if and when a final judgment results. We therefore conclude that the Court of Appeals had no jurisdiction under § 1291 to pass on the merits of petitioners’ challenge to the sufficiency of the indictment at this juncture in the proceedings. (4) We turn finally to the merits of petitioners’ claim that their retrial, following the prosecutor’s" } ]

[ { "docid": "23289555", "title": "", "text": "OPINION OF THE COURT A. LEON HIGGINBOTHAM, Jr., Circuit Judge. \" On this appeal, we must decide the following questions: 1) Whether use of a prior conspiracy conviction as a predicate act for a subsequent Racketeer Influenced and Corrupt Organization (“RICO”). 18 U.S.C. § 1962(c), prosecution and a subsequent continuing criminal enterprise (“CCE”) prosecution violates the double jeopardy clause of the fifth amendment to the United States Constitution: 2) Whether the double jeopardy clause bars cumulative punishments for a conspiracy predicate act and for the CCE offense: and 3) Whether the district court erred in its instruction to the jury when defining “pattern of racketeering” for RICO purposes, 18 U.S.C. § 1961(5). We hold that, on the facts of this case, prosecution for RICO and CCE, after an earlier prosecution for a conspiracy predicate act, did not violate the double jeopardy clause. Part II-A infra. We hold that the double jeopardy clause was violated by consecutive sentencing on the CCE offense, 21 U.S.C. § 848, and its conspiracy predicate offense, 21 U.S.C. § 846, as to appellant Michael Grayson. Thus, we remand Gray-son’s case to the district court for resen-tencing. Part II-B infra. We further hold that, on the facts of this case, the district court’s refusal to instruct the jury that a connection must be shown among predicate offenses to prove the “pattern of racketeering” activity was, if error, harmless. Part III infra. The other challenges raised by appellants, we find to be without merit and require no discussion. Thus, we affirm appellants’ convictions and sentences in all other respects. I. On July 18, 1984, a federal grand jury returned an indictment against ten members and associates of the Pagan Motorcycle Club (“PMC”). Charges were brought under provisions of the Racketeer Influenced Corrupt Organizations Act, 18 U.S.C. § 1962(c) and (d), alleging substantive violation of and conspiracy to violate the statute. In addition, several of the defendants were charged with various violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. §§ 841(a)(1) and (d); 846; 848. Eight of the ten defendants indicted, including all" }, { "docid": "14961648", "title": "", "text": "subsequently sent Washington a notice of forfeiture. On the advice of counsel, Washington decided sometime prior to the end of 1991 not to file a claim stating his interest in the seized money. While the record is not clear on the final disposition of the money, the parties agree that it was forfeited to the Government prior to the end of 1991. On July 16, 1991, the Government filed a first superseding indictment against Washington bringing the instant criminal charges. Washington moved to dismiss the indictment on double jeopardy grounds. During a hearing held on January 17, 1995, the district court denied the motion, but certified the ruling for interlocutory appeal. On February 14, 1995, the district court denied Washington’s motion for reconsideration. Wash ington filed a timely notice of appeal on February 24, 1995. DISCUSSION I. Jurisdiction The Government argues in its motion to dismiss that this Court lacks jurisdiction over this interlocutory appeal because Washington has not been subjected to multiple criminal prosecutions and because he has not yet been subjected to multiple punishments. The Government’s basic premise is that exposure to multiple punishments cannot be interlocu-torily appealed because the multiple punishments prong of the Double Jeopardy Clause is not violated until the subsequent punishment is actually imposed. As the Government concedes in its brief on the merits of the appeal, we have considered and rejected this position in the recent decision in United States v. Chick, 61 F.3d 682, 684-86 (9th Cir.1995). As we noted in Chick, if a defendant who has once been punished is subsequently tried and convicted, and punishment is imposed, then the constitutional right not to be doubly punished is lost, even if vindicated on appeal. The only way to avoid this result is to allow an appeal before trial. Id. at 685. Accordingly, pursuant to Chick and 28 U.S.C. § 1291, we have jurisdiction to hear Washington’s interlocutory appeal of the pretrial order denying his motion to dismiss the indictment on double jeopardy grounds. II. Merits A district court’s denial of a motion to dismiss an indictment on double jeopardy grounds is" }, { "docid": "3164524", "title": "", "text": "PER CURIAM. This is an interlocutory criminal appeal from a district court order denying a motion to dismiss on statute-of-limitations grounds. Because it is “well settled law” that such an order “is not immediately appealable under the collateral order doctrine,” United States v. Pi, 174 F.3d 745, 750 (6th Cir.), cert. denied, — U.S. -, 120 S.Ct. 74, 145 L.Ed.2d 63 (1999), we dismiss the appeal for lack of jurisdiction. In connection with his employment at a medical institute in Puerto Rico, defendant Dr. Jorge Garib Bazain was indicted on two counts: conspiracy to commit program fraud, 18 U.S.C. §§ 371, 666, and perjury, 18 U.S.C. § 1623. Prior to trial, he moved to dismiss the conspiracy count as time-barred under the applicable five-year statute of limitations. See 18 U.S.C. § 3282. When the district court denied that motion, defendant filed the instant appeal. As he recognizes, such an order is immediately appealable only if it satisfies the three criteria that define the collateral-order exception: the order “must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 799, 109 S.Ct. 1494, 103 L.Ed.2d 879 (1989) (internal-quotation marks omitted). Defendant contends that, just as denials of motions to dismiss on double-jeopardy grounds satisfy these criteria, see Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), so do denials of motions to dismiss on limitations grounds. With respect to the third criterion in particular, he asserts that a “right not to be tried,” like the one recognized in Abney, is also involved here — a right that “would be irretrievably lost if review were postponed until trial is completed.” Flanagan v. United States, 465 U.S. 259, 266, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). Such a right is said to derive from the language of § 3282 (“no person shall be ... tried”) and from the degree to which statutes of limitations and the Double Jeopardy Clause" }, { "docid": "7159266", "title": "", "text": "of the original indictment which articulated the invalidated “intangible rights” theory. 673 F.Supp. at 351. II. The defendants argue that the indictment should now be dismissed in its entirety. Relying on Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887), the defendants claim that the striking of the invalid portions of the indictment has substantially changed its terms, so that the remaining charges no longer reflect the grand jury’s intention. The defendants conclude that a new trial on the edited indictment would violate their Fifth Amendment right to be tried only on a presentment or indictment of a grand jury. We lack jurisdiction over this interlocutory appeal. The federal appellate courts have jurisdiction only over appeals from “final decisions of the district courts,” 28 U.S.C. § 1291, with some exceptions not here relevant, and the defendants’ case has not yet been finally decided by the District Court. In general, the rule of finality imposed by § 1291 “... prohibits appellate review until conviction and imposition of sentence.” Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 1054, 79 L.Ed.2d 288 (1984) (citation omitted). There are rare exceptions to the final-judgment rule of appellate jurisdiction in criminal cases, in which a pre-trial ruling may be considered a “final decision” for purposes of § 1291, see Flanagan, 465 U.S. at 265-66, 104 S.Ct. at 1054-55. The Supreme Court has specifically held, however, that an interlocutory appeal challenging the sufficiency of an indictment is not such an exception. In Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the Court considered whether a refusal to dismiss an indictment could be an appealable “collateral order” under the criteria developed in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Where the pre-trial challenge to an indictment was based on a claim of former jeopardy, the Court found that the District Court’s order was conclusive, that it “was not simply a ‘step toward final disposition of the merits [which would] be merged in final judgment,’ ” and" }, { "docid": "22597820", "title": "", "text": "at 2411. If such intent is evident, the court must then determine whether prosecution for the later offense after an earlier prosecution for a predicate offense violates the double jeopardy clause, under the particular circumstances of the case. Id. at 786, 105 S.Ct. at 2415. In affirming Judge Keenan’s judgment denying Russo’s and McIntosh’s pre-trial motions, we endorsed Judge Keenan’s determination that “Congress intended to permit conduct resulting in prior convictions to be used as predicate acts of racketeering activity to establish subsequent RICO convictions,” Persico, 774 F.2d at 32 (citations omitted), as well as his conclusion that a trial on the then-pending RICO charges was not barred by the double jeopardy clause, id. We noted that the indictment alleged that the substantive conduct and conspiracy continued, with the participation of all appellants, well beyond the date of the indictments in the Annicharico bribe scheme case. However, we specifically declined to decide whether evidence of post-plea unlawful conduct, or evidence accumulated after the plea demonstrating participation in the criminal enterprise, was required in order to defeat a double jeopardy challenge to a subsequent indictment. Id. After trial, Judge Keenan determined that the government sufficiently had demonstrated that Russo and McIntosh continued as members of the criminal enterprise charged well after pleading guilty in the Eastern District. Persico, 646 F.Supp. at 760. That judgment is the focus of their current appeal. As an initial matter, we entertain serious doubt as to whether evidence of post-plea involvement is necessary to defeat a double jeopardy challenge to RICO convictions based on predicate acts that were the subject of prior guilty pleas. The Supreme Court in Garrett assumed, for purposes of decision, that the predicate act resulting in conviction was a lesser included offense within the continuing criminal enterprise charge. As the Court noted, the subsequent prosecution would not have been barred on double jeopardy grounds even assuming that lesser included offense principles applied. See Garrett, 471 U.S. at 790, 105 S.Ct. at 2417 (majority opinion); id. at 797, 105 S.Ct. at 797 (O’Connor, J., concurring). In fact, the Court cautioned against “ready transposition”" }, { "docid": "9465939", "title": "", "text": "The Supreme Court has noted that adherence to the rule of finality is particularly important in criminal cases, “because ‘the delays and disruptions attendant upon intermediate appeal,’ which the rule is designed to avoid, ‘are especially inimical to the effective and fair administration of the criminal law.’” Abney v. United States, 431 U.S. 651, 657, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977) (quoting DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 658, 7 L.Ed.2d 614 (1962)). Delay in criminal cases infringes not only upon the defendant’s interest in the speedy resolution of the charges against him, but also upon society’s interest in the prompt administration of justice. Over time, the prosecution’s ability to prove its case diminishes as evidence deteriorates and witnesses’ memories fade; society may be forced to bear the cost of extended pretrial detention or, alternatively, to assume the risk that defendants released pending trial may commit other crimes. Flanagan v. United States, 465 U.S. 259, 264-65, 104 S.Ct. 1051, 1054-55, 79 L.Ed.2d 288 (1984). With these concerns in mind, the Supreme Court thus far has recognized the following types of pretrial orders in criminal cases that meet the requirements of the collateral order exception: an order denying a motion for reduction of bail, Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951); an order denying a motion to dismiss an indictment where it is claimed it violates the double jeopardy clause, Abney, 431 U.S. 651, 97 S.Ct. at 2034; and an order denying a motion to dismiss an indictment on the ground that it violates the speech and debate clause, Helstoski v. Meanor, 442 U.S. 500, 99 S.Ct. 2445, 61 L.Ed.2d 30 (1979). Apart from these exceptions, the general rule is that an order denying a motion to dismiss an indictment is interlocutory and not appealable. United States v. Beckerman, 516 F.2d 905, 906 (2d Cir.1975). See also United States Tour Operators Ass’n v. Trans World Airlines, 556 F.2d 126, 128 (2d Cir.1977) (stating that “Attempts to come within the scope of the Cohen doctrine have been legion, but" }, { "docid": "2228589", "title": "", "text": "conduct or common scheme”, the Guidelines direct that they be included as relevant conduct in determining Saccoccia’s offense level. The presumption that the Guidelines were correctly applied further supports Saccoccia’s claim that his sentence was based on conduct charged in the California indictment. However, none of the evidence presented by Saccoccia is sufficient to overcome the clear implication of the Rhode Island district court’s statements that the $187 million was based only on transactions occurring between January 1, 1990 and April 2, 1991. Accordingly, we find that Saccoceia’s sentence was not based on conduct charged in the California indictment and thus the Double Jeopardy Clause does not bar the California prosecution. III. Extradition Claims Saccoccia argues that the government violated the American-Swiss Extradition Treaty by: 1) proceeding with the forfeiture count despite its violation of both the doctrine of specialty and the doctrine of dual criminality; and 2) manipulating the charges against him to secure his extradition, thereby violating the Treaty’s requirement that the requesting nation provide “an accurate statement of the offense charged”. Because all of Saccoccia’s claims represent challenges to the district court’s jurisdiction, we decline to exercise jurisdiction over the interlocutory appeal of these extradition issues. Interlocutory appeals are disfavored in our judicial system, particularly in the criminal context. See United States v. MacDonald, 435 U.S. 850, 853, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978); United States v. Layton, 645 F.2d 681, 682 (9th Cir.), cert. denied, 452 U.S. 972, 101 S.Ct. 3128, 69 L.Ed.2d 984 (1981). For a pre-trial order to be immediately appealable, it must involve a right not to be tried as opposed to a right not to be convicted. Flanagan v. United States, 465 U.S. 259, 266-67, 104 S.Ct. 1051, 1055-56, 79 L.Ed.2d 288 (1984). The party’s claim must be grounded on a right which will be “lost, probably irreparably” if interlocutory appeal is not permitted. Layton, 645 F.2d at 683 (quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949)). We may reach the extradition issues raised by Saccoccia only if his claims" }, { "docid": "18168250", "title": "", "text": "of review is plenary. United States v. Grayson, 795 F.2d at 281. II. Esposito argues on appeal that the district court erred as a matter of law in rejecting his claim that this prosecution is barred by the Double Jeopardy Clause because of his acquittal on Counts One, Two, and Three of the earlier indictment. There appear to be two prongs to his double jeopardy argument. He argues, first that this is an impermissible successive prosecution. In that connection, he argues that although a conviction may be used later as a predicate act in a substantive RICO claim without violating the Double Jeopardy Clause, as we held in Grayson, the reverse is not true; once a defendant has been acquitted on a RICO charge the government cannot later prosecute him on the underlying predicate acts. He also argues that this prosecution is barred under the legal principle that precludes a later prosecution on a lesser included offense when there has been an acquittal or conviction on a greater offense, and cites, inter alia, Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (per cu-riam). The double jeopardy issues raised in connection with prosecution for a compound predicate offense, such as racketeering under RICO or engaging in a continuing criminal enterprise (CCE) in violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 848, do not fit precisely within the analytic lines used in other double jeopardy cases. Nonetheless, there is no exception from the Double Jeopardy Clause for complex statutory crimes. See Jeffers v. United States, 432 U.S. 137, 151, 97 S.Ct. 2207, 2216, 53 L.Ed.2d 168 (1977) (plurality opinion). Indeed, we recognize at the outset that Esposito’s prosecution on the substantive narcotics offenses which were listed as predicate acts in the earlier RICO indictment against him could implicate some of the concerns underlying the Double Jeopardy Clause, such as, for example, the need to protect a defendant from prosecutorial overreaching, see Ohio v. Johnson, 467 U.S. 493, 498-99, 104 S.Ct. 2536, 2540, 81 L.Ed.2d 425 (1984); Garrett v. United States," }, { "docid": "7278006", "title": "", "text": "Carolina. Id. at *4. Olmeda filed an interlocutory appeal of the district court’s ruling to this court. II. Discussion A. Jurisdiction and the Standard of Review In general, we lack jurisdiction to review rulings made in criminal cases until a final judgment has been entered. See 28 U.S.C. § 1291; United States v. MacDonald, 435 U.S. 850, 853, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978). The “collateral order doctrine” creates an exception to this rule for orders that “(1) ‘conclusively determine the disputed question,’ (2) ‘resolve an important issue completely separate from the merits of the action,’ and (3) [will] be ‘effectively unreviewable on appeal from a final judgment.’ ” Cruz v. Ridge, 383 F.3d 62, 64 (2d Cir.2004) (quoting Whiting v. Lacara, 187 F.3d 317, 320 (2d Cir.1999)); see also Bernard v. County of Suffolk, 356 F.3d 495, 501-02 (2d Cir.2004). Denials of motions to dismiss on double jeopardy grounds qualify as appeal-able orders within the collateral order doctrine. See Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). As the Supreme Court explained in Abney, “if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.” Id. (emphasis-omitted). Accordingly, we conclude that we have jurisdiction to hear this interlocutory appeal. Further, because Olmeda’s motion to dismiss the Southern District indictment on double jeopardy grounds raises a question of law, or, at most, a mixed question of law and fact, we review the denial of that motion de novo. See United States v. Estrada, 320 F.3d 173, 180 (2d Cir.2003) (providing for de novo review of double jeopardy issue); United States v. Leyland, 277 F.3d 628, 631 (2d Cir.2002); see also Davis v. New York City Housing Auth., 278 F.3d 64, 79 (2d Cir.2002) (holding mixed questions of law and fact subject to de novo review). B. The Double Jeopardy Clause The Fifth Amendment to the United States Constitution provides that never “shall any person be subject for the" }, { "docid": "12261172", "title": "", "text": "would follow. DISCUSSION 1. Appellate Jurisdiction We first address briefly our jurisdiction over this interlocutory appeal. Federal Courts of Appeals are generally limited to hearing appeals only from “final decisions” of the district courts. 28 U.S.C. § 1291. However, because the Double Jeopardy Clause protects the right of an individual to be free from a second prosecution, rather than simply a second conviction, for the same offense, the Supreme Court has held that an appeal will lie from a pre-trial order denying a motion to dismiss an indictment on double jeopardy grounds. Abney v. United States, 431 U.S. 651, 656-62, 97 S.Ct. 2034, 2038-41, 52 L.Ed.2d 651 (1977). Similarly, at least in this Circuit, an order denying a colorable claim to dismiss an indictment for violation of a prior plea agreement may properly be appealed prior to a final judgment on the entire criminal case in the district court. United States v. Abbamonte, 759 F.2d 1065, 1071 (2d Cir.1985). But see United States v. Dederich, 825 F.2d 1317, 1321 (9th Cir.1987) (“[T]he majority of courts have denied interlocutory appeals grounded in plea-bargain promises.”) (collecting cases). This appeal, therefore, is appropriately before us. 2. Double Jeopardy The Fifth Amendment provides: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” In arguing that Count One of the instant indictment is barred by this provision, Romero relies heavily on Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), in which the Supreme Court announced that “the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Id. at 521, 110 S.Ct. at 2093 (footnote omitted). Romero contends that the pre-plea conduct alleged in Count One of the indictment is the same conduct to which he pleaded guilty in 1987. He argues that, although the specific acts alleged to demonstrate the existence of the conspiracy may be different in the two" }, { "docid": "13154461", "title": "", "text": "to dismiss the RICO charges on the basis of a Rule 11 violation is denied. CONCLUSION For the foregoing reasons, the motion of defendants Carmine Pérsico, Russo, Catal-do and McIntosh to dismiss the RICO charges lodged against them on the basis of asserted violations of the Double Jeopardy Clause, prior plea agreements, or Rule 11 is denied. SO ORDERED. . The Court has established, should defendants' other motions to dismiss the indictment not be granted, that September 30, 1985 will be the date for commencement of the trial. However, rulings on motions to dismiss based on asserted violations of the Double Jeopardy Clause or breach of a plea agreement are, in contrast to all the other pretrial motions made in this case, appealable before trial. Abney v. United States, 431 U.S. 651, 656-62, 97 S.Ct. 2034, 2038-41, 52 L.Ed.2d 651 (1977); United States v. Abbamonte, 759 F.2d 1065, 1070-72 (2d Cir.1985). The Court notes that (i) defendant Dominic Montemarano is currently in custody under the pending indictment, and (ii) it is our understanding that government witnesses are being sequestered before trial. In view of these considerations, and the right of all the defendants and the public to a speedy trial, the Court hopes to commence this trial on September 30, 1985, the date fixed. Therefore, those issues subject to interlocutory appeal are being addressed in advance of the other issues raised in defendants’ pretrial motions. Should an appeal from this order be taken, the Court will then determine whether it retains jurisdiction to go forward with this case. . See, e.g., Racketeering Act 1 (C, Pérsico — Conspiracy to extort payments from construction companies until September 1984); Racketeering Act 45 (C. Pérsico and Cataldo — Bribery of prison official until September 1982); Racketeering Act 46 (Cataldo — Bribery of a public official until September 1982); Racketeering Act 47 (Russo — Loansharking conspiracy until April 4, 1985). . The Court notes that when Garrett pleaded guilty to certain predicate offenses, the government agreed to dismiss the related charges \"without prejudice to the Government’s right to prosecute him on any other offenses" }, { "docid": "7159267", "title": "", "text": "465 U.S. 259, 263, 104 S.Ct. 1051, 1054, 79 L.Ed.2d 288 (1984) (citation omitted). There are rare exceptions to the final-judgment rule of appellate jurisdiction in criminal cases, in which a pre-trial ruling may be considered a “final decision” for purposes of § 1291, see Flanagan, 465 U.S. at 265-66, 104 S.Ct. at 1054-55. The Supreme Court has specifically held, however, that an interlocutory appeal challenging the sufficiency of an indictment is not such an exception. In Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), the Court considered whether a refusal to dismiss an indictment could be an appealable “collateral order” under the criteria developed in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Where the pre-trial challenge to an indictment was based on a claim of former jeopardy, the Court found that the District Court’s order was conclusive, that it “was not simply a ‘step toward final disposition of the merits [which would] be merged in final judgment,’ ” and that it “involved an important right which would be ‘lost, probably irreparably,’ if review had to await final judgment_” Abney, 431 U.S. at 658, 97 S.Ct. at 2039 (citing Cohen). The Abney Court held that a lower court’s pre trial order rejecting a double-jeopardy claim was appealable, but the Court refused to extend appellate jurisdiction where the pre-trial order simply concerned a challenge to the sufficiency of an indictment. 431 U.S. at 663, 97 S.Ct. at 2042. Unlike an order denying a double-jeopardy claim, an order rejecting a challenge to the sufficiency of an indictment “is plainly not ‘collateral’ in any sense of that term; rather it goes to the very heart of the issues to be resolved at the upcoming trial.” Id. When a motion to dismiss an insufficient indictment is denied, the defendant has not irreparably lost a right comparable to the constitutional immunity from successive prosecutions, since the issue of the indictment’s sufficiency “is such that it may be reviewed effectively, and, if necessary, corrected if and when a final judgment results.”" }, { "docid": "23065643", "title": "", "text": "E. GRADY JOLLY, Circuit Judge: In this appeal, the defendants seek dismissal of their criminal indictment for selling illegal drugs on grounds of double jeopardy. They argue that the prior civil forfeiture of the proceeds from these drug sales constitutes punishment for the crimes charged in the indictment and that the Double Jeopardy Clause precludes a second punishment. The district court, refusing to buy into the defendants’ double jeopardy argument, denied their motion to dismiss the indictment. The defendants then filed this interlocutory appeal. Because we hold that the forfeiture of unlawful proceeds of illegal drug sales does not constitute punishment, we affirm the district court. I In 1990, the Drug Enforcement Agency, and other authorities, began an investigation of large-scale activities involved in this case, which had yielded millions of dollars in drug proceeds. On July 25, 1991, the government filed a complaint for civil forfeiture in rem against certain personal and real property belonging to the defendants pursuant to 21 U.S.C. §§ 881(a)(6) and (a)(7). On October 8, 1992, the government issued a criminal indictment charging the defendants for the various drug crimes committed from 1986 to 1991. On February 5, 1993, the four defendants in this case entered into a stipulated forfeiture agreement with the United States. They agreed to forfeit significant amounts of cash, certificates of deposit, automobiles, and other personal property with a total value of approximately $650,000. Based on the stipulated agreements, the district court, on February 8, entered final judgment of forfeiture with respect to the personal property; however, the court stayed forfeiture proceedings with respect to defendants’ two homes pending outcome of the criminal trial. On April 7, the defendants filed a motion to dismiss the indictment on grounds that they were being subjected to multiple punishments for the same crimes in violation of the Double Jeopardy Clause. The defendants argued that they had already been “punished” for the same drug trafficking in the civil forfeiture proceeding. The district court rejected the argument and denied the motion. The defendants then filed this interlocutory appeal pursuant to Abney v. United States, 431 U.S." }, { "docid": "3139996", "title": "", "text": "case, this rule prohibits appellate review until after conviction and sentencing, Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 1053-54, 79 L.Ed.2d 288 (1984); United States v. Luloff, 15 F.3d 763, 768 (8th Cir.1994), except in a few limited situations. Although we have jurisdiction to review an order denying dismissal of an indictment on a colorable double jeopardy claim, other claims contained in the motion to dismiss are immediately appealable “if, and only if, they too fall within Cohen’s collateral-order exception to the final-judgment rule.” Abney, 431 U.S. at 663, 97 S.Ct. at 2042 (referring to Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949)). Cohen’s collateral order exception permits immediate appeal of a pretrial order if (1) the order conclusively determines the disputed question, (2) it resolves an important issue separate from the merits of the action, and (3) “it must ‘be effectively unreviewable on appeal from a final judgment.’” Flanagan, 465 U.S. at 265, 104 S.Ct. at 1055 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457-58, 57 L.Ed.2d 351 (1978)). The collateral order exception is applied “with the utmost strictness in criminal cases” in an attempt to avoid piecemeal litigation and to promote prompt trials. Id.; see also Grabinski, 674 F.2d at 678. “The importance of the final judgment rule has led the Court to permit departures from the rule only when observance of it would practically defeat the right to any review at all.” Flanagan, 465 U.S. at 265, 104 S.Ct. at 1054 (internal quotation omitted). The Supreme Court has applied the collateral order exception to only three types of pretrial orders: (1) an order denying a motion to reduce bail, see Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951); (2) an order denying a motion to dismiss an indictment on double jeopardy grounds, see Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); and (3) an order denying a motion to dismiss an indictment on speech or debate" }, { "docid": "3139995", "title": "", "text": "at 220. The motion was not for a pretrial determination of a legal question. The district court in Hernandez had the power to determine guilt or innocence by the defendant’s motion for judgment of acquittal; thus jeopardy attached and the dismissal on the defendant’s motion was a factual determination of innocence. See id. at 221-22. Because jeopardy did not attach to the first indictment against Bailey and because no issue of fact has yet been determined in favor of Bailey, we conclude that he has not made a colorable double jeopardy claim. We therefore dismiss the double jeopardy appeal for lack of jurisdiction. III. The Nonprosecution Agreement Bailey also contends that the pending indictment violates his nonproseeution agreement with the government and that immunized statements should not be used against him to form the basis of the pending indictment. Again, we must first consider whether we have jurisdiction to adjudicate this claim. Federal courts of appeals “have jurisdiction of appeals from all final decisions of the district courts_” 28 U.S.C. § 1291. In a criminal case, this rule prohibits appellate review until after conviction and sentencing, Flanagan v. United States, 465 U.S. 259, 263, 104 S.Ct. 1051, 1053-54, 79 L.Ed.2d 288 (1984); United States v. Luloff, 15 F.3d 763, 768 (8th Cir.1994), except in a few limited situations. Although we have jurisdiction to review an order denying dismissal of an indictment on a colorable double jeopardy claim, other claims contained in the motion to dismiss are immediately appealable “if, and only if, they too fall within Cohen’s collateral-order exception to the final-judgment rule.” Abney, 431 U.S. at 663, 97 S.Ct. at 2042 (referring to Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949)). Cohen’s collateral order exception permits immediate appeal of a pretrial order if (1) the order conclusively determines the disputed question, (2) it resolves an important issue separate from the merits of the action, and (3) “it must ‘be effectively unreviewable on appeal from a final judgment.’” Flanagan, 465 U.S. at 265, 104 S.Ct. at 1055 (quoting Coopers &" }, { "docid": "23599753", "title": "", "text": "of the car. On January 5, 1994, after the forfeiture became final, Cretaeci moved to dismiss the pending criminal indictment against him on double jeopardy grounds. The indictment charged Cretaeci with two counts of Hobbs Act Robbery, under 18 U.S.C. § 1951, and one count of using and carrying a firearm in a crime of violence, under 18 U.S.C. § 924(c). Cretaeci contended that, in light of the prior forfeiture of the Toyota MR-2, it would constitute double jeopardy were the government to prosecute him criminally. Approximately a month later, a second superseding indictment issued charging Cretae-ci with additional money laundering counts. At a hearing on his double jeopardy motion in April of 1994, Cretaeci contended that the new money laundering counts strengthened his double jeopardy defense because the forfeiture had been premised on money laundering violations. The district court denied Cretacei’s motion to dismiss the indictment. Cretaeci appeals. II. The district court denied the motion to dismiss on the ground that because the Toyota MR-2 had been purchased with stolen money, no double jeopardy violation occurred. Although the district court’s conclusion may be in conflict with our subsequent holding in $405,089.23, we need not consider that question here. Instead, we affirm the district court on a different ground. We hold that the administrative forfeiture of the Toyota MR-2 did not constitute punishment of Cretacci for purposes of the Double Jeopardy Clause. ' Before explaining our reasons for our conclusion, we address Cretacci’s contention that we may not consider his failure to participate in the forfeiture proceeding because the government did not raise that issue below. While Cretacci is correct that we generally do not consider issues raised for the first, time on appeal, the rule is not an absolute one. We may consider an issue if it is “purely one of law and the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court.” United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir.1991) (quoting United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir.1990)). The question whether an" }, { "docid": "9702302", "title": "", "text": "Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) (holding certain collateral orders appealable). The Abney Court held that federal courts of appeals may hear double jeopardy claims on interlocutory appeal under the collateral order doctrine of Cohen: [S]uch orders fall within the small class of cases that Cohen has placed beyond the final judgment rule. In the first place there can be no doubt that such orders constitute a complete, formal, and, in the trial court, final rejection of a criminal defendant’s double jeopardy claim____ Moreover, the very nature of a double jeopardy claim is such that it is collateral to, and separable from the principal issue at the accused’s impending criminal trial, whether or not the accused is guilty of the offense charged. 431 U.S. at 659, 97 S.Ct. at 2040 (emphasis added). The government tries to distinguish Abney on the ground that Abney involved a multiple-prosecution double jeopardy analysis, not a multiple-punishment analysis as in this case. That argument is foreclosed by Tilley, in which we took jurisdiction under Abney, without discussion, of an interlocutory appeal from a refusal to dismiss an indictment. See Tilley, 18 F.3d at 297. The motion to dismiss in Tilley made the same double jeopardy argument that Perez makes here (a violation of the clause’s prohibition on multiple punishments). Cf. id. Given Abney and Til-ley, there is no question that we have jurisdiction over Perez’s appeal. III. A recent Supreme Court decision resolves any question of ripeness here, even though that case did not have precisely the same posture as the one before us now. In Witte v. United States, — U.S. -, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995), the government appealed a district court order granting a defendant’s motion to dismiss an indictment based on the multiple punishments prong of the Double Jeopardy Clause. Id. at -, 115 S.Ct. at 2203-04. On appeal, a panel of this court reversed and remanded, and that judgment was affirmed, with the Court holding the case to be ripe for appellate review even though the defendant had not yet been convicted" }, { "docid": "6965036", "title": "", "text": "multiple punishments cannot be interloeutorily appealed because the multiple punishments prong of the Double Jeopardy Clause is not violated until the subsequent punishment is actually imposed. We disagree. An appeal from a pretrial order denying a motion to dismiss an indictment is typically considered interlocutory, and, therefore, not appealable as a final decision under 28 U.S.C. § 1291. However, where judgment has been entered in a civil forfeiture proceeding, and a defendant moves to dismiss a subsequent criminal prosecution on double jeopardy grounds, we find the pretrial order denying the motion to dismiss appeal-able under the collateral order exception to the final judgment rule and Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). In Abney, the Supreme Court specifically-held that “courts of appeals may exercise jurisdiction over an appeal from a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds.” Id. at 662, 97 S.Ct. at 2042 (emphasis added). Unlike this case, where Chick seeks to avoid an impending criminal prosecution, Abney involved a defendant’s challenge to a second criminal prosecution. Nevertheless, the basis for permitting an interlocutory appeal on double jeopardy grounds in this case is no less compelling than it was in Abney. As the Court acknowledged: Although it is true that a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds lacks the finality traditionally considered indispensable to appellate review, we conclude that such orders fall within the “small class of cases” that Cohen has placed beyond the confines of the final-judgment rule. In the first place there can be no doubt that such orders constitute a complete, formal and, in the trial court, a final rejection of a criminal defendant’s double jeopardy claim. There are simply no further steps that can be taken in the District Court to avoid the trial the defendant maintains is barred by the Fifth Amendment’s guarantee. Hence, Cohen’s threshold requirement of a fully consummated decision is satisfied. Moreover, the very nature of a double jeopardy claim is such that it is collateral to, and separable from, the" }, { "docid": "6965035", "title": "", "text": "selling illegal descrambler units. Before trial, Chick moved to dismiss the criminal charges against him on the grounds that they violated the Double Jeopardy Clause. Chick argued that the prior civil forfeiture of some of the equipment seized from his home constituted punishment for the same offenses charged in the criminal indictment. The district court denied the motion, concluding that the civil forfeiture action and the impending prosecution were not based upon the same offenses. Based on United States v. Castiglione, 876 F.2d 73, 75 (9th Cir.1988), cert. denied, 493 U.S. 954, 110 S.Ct. 365, 107 L.Ed.2d 351 (1989), together with a finding that Chick had raised a colorable double jeopardy claim, the district court certified the issue for an interlocutory appeal and Chick timely filed his Notice of Appeal with this court. II. JURISDICTION The Government contends that we lack jurisdiction over this interlocutory appeal because Chick has not been subjected to multiple criminal prosecutions, and because he has yet to be subjected to multiple punishments. In essence, the Government argues that exposure to multiple punishments cannot be interloeutorily appealed because the multiple punishments prong of the Double Jeopardy Clause is not violated until the subsequent punishment is actually imposed. We disagree. An appeal from a pretrial order denying a motion to dismiss an indictment is typically considered interlocutory, and, therefore, not appealable as a final decision under 28 U.S.C. § 1291. However, where judgment has been entered in a civil forfeiture proceeding, and a defendant moves to dismiss a subsequent criminal prosecution on double jeopardy grounds, we find the pretrial order denying the motion to dismiss appeal-able under the collateral order exception to the final judgment rule and Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). In Abney, the Supreme Court specifically-held that “courts of appeals may exercise jurisdiction over an appeal from a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds.” Id. at 662, 97 S.Ct. at 2042 (emphasis added). Unlike this case, where Chick seeks to avoid an impending criminal prosecution, Abney involved a defendant’s" }, { "docid": "10115491", "title": "", "text": "indictment. In the present case, Pierre moved three times to dismiss his indictment on double jeopardy grounds, and the district court denied the motions. Pierre filed this interlocutory appeal, arguing that the Double Jeopardy Clause bars the indictment against him because the indictment charges him with the same conspiracy for which he was convicted in Florida. Pierre also argues the district court erroneously denied his request for an evidentiary hearing. II. The Double Jeopardy Clause prohibits the government from subdividing a single criminal conspiracy into multiple violations. Braverman v. United States, 317 U.S. 49, 53-54, 63 S.Ct. 99, 87 L.Ed. 23 (1942). In determining whether separately-charged conspiracies are really a single conspiracy, this court applies a “totality of the circumstances” test. United States v. Thomas, 759 F.2d 659, 662 (8th Cir.1985). In applying that test, our cases consider: (1) the timing of the alleged conspiracies; (2) the identity of alleged co-conspirators; (3) the offenses charged in the indictments; (4) the “overt acts charged ... or any other description of the offenses charged which indicate the nature and the scope of the activity” charged; and (5) the locations of the alleged conspiracies. Id. “The essence of the determination is ’ whether there is one agreement to commit two crimes, or more than one agreement, each with a separate object.” Id. In evaluating these factors, courts may look beyond the indictments and consider evidence adduced at a previous trial. Id. We review the district court’s denial of a motion to dismiss an indictment on double jeopardy grounds de novo and its related factual findings for clear error. Id. Although the indictment charges both a conspiracy to defraud and a substantive count of money laundering, Pierre’s argument focuses primarily on the conspiracy. Because the district court concluded that Pierre’s double-jeopardy claim was non-frivolous, the government must show by a preponderance of the evidence that the Minnesota and Florida indictments charge separate conspiracies. Id. As to the first factor, we agree with the district court that the conspiracies transpired at different times. The Florida conspiracy began as early as January 2010, when defendants incorporated" } ]

[ { "docid": "13606696", "title": "", "text": "standards, the Court is persuaded that in 1970 and 1971 the character of school desegregation litigation has become such that full and appropriate relief must include the award of expenses of litigation. This is an alternative ground for today’s ruling. The circumstances which persuaded Congress to authorize the payment of attorney’s fees by statute under certain sections of the 1964 Civil Rights Act, see 42 U.S.C. §§ 2000a-3(b), 2000e-5(k), very often are present in even greater degree in school desegregation litigation. Newman v. Piggie Park Enterprises, Inc., supra, the Supreme Court elucidated the logic underlying the 1964 legislation: When the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult and that the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law. A Title II suit is thus private in form only. When a plaintiff brings an action under that Title, he cannot recover damages. If he obtains an injunction, he does so not for himself alone but also as a “private attorney general,” vindicating a policy that Congress considered of the highest priority. If succsssful plaintiffs were routinely forced to bear their own attorneys’ fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunc-tive powers of the federal courts. Id. 390 U.S., 401-402, 88 S.Ct. 966. Newman was followed in Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970), in which the court recognized that in cases there the plaintiffs had undertaken no obligation to pay counsel, congressional purposes would best be served by directing payment to the lawyers. The rationale of Newman, moreover, has equal force in employment discrimination cases, even where plaintiffs are only partially successful, where their lawsuit serves to bring an employer into compliance with the Act. Lea v. Cone Mills Corp., 438 F.2d 86 (4th Cir. 1971); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (5th Cir. 1970). School desegregation cases almost universally proceed as class actions. Use of this unconventional form of action converts a private" } ]

[ { "docid": "23629251", "title": "", "text": "v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970). Indeed, under such circumstances, the award loses much of its discretionary character and becomes a part of the effective remedy a court should fashion to encourage public-minded suits and to carry out congressional policy. See Lee v. Southern Home Sites, 444 F.2d 143 (5th Cir. 1971); Sims v. Amos, 340 F.Supp. 691 (M.D.Ala., 1972) (three-judge court). In the present case, the benefit accruing to plaintiffs’ class is substantial and important. Employment discrimination based upon race is reprehensible on any level, and especially so when practiced by state government. Those plaintiffs acting in the capacity of private attorneys general, who establish the existence of such discrimination by a state agency and who, through litigation, procure relief from its onerous effects, not only provide the members of their class with added employment opportunities, but also relieve them of the badge of opprobrium which necessarily attaches to a group discriminatorily excluded, solely by reason of their race, from particular fields of endeavor. In addition, congressional policy strongly favors the vindication of federal rights violated under color of state law, 42 U.S.C. § 1983, and, more specifically, the enforcement and protection of the right to equal job opportunities, 42 U.S.C. §§ 2000e, 2000e-l to 2000e-15. Surely, this congressional policy is as compelling as that embodied in 42 U.S.C. § 1982 and given effect by an award of attorneys’ fees in Lee v. Southern Home Sites, supra. Consequently, because the benefit to plaintiffs’ class is significant, and because, in bringing this suit, plaintiffs have promoted the purposes of congressional legislation, the case sub judice clearly falls among those meant to be encouraged under the principles articulated in Piggie Park Enterprises, Inc. and Mills and expanded upon in Southern Home Sites and Bradley v. School Bd. of Richmond, 53 F.R.D. 28 (E.D.Va.1971). See Sims v. Amos, supra. Other circumstances also render an allowance of attorneys’ fees appropriate. The prosecution of the kind of case involved here, like that of the desegregation suits described in Bradley, “is an enterprise on which any private individual should shudder to" }, { "docid": "23629253", "title": "", "text": "embark.” 53 F.R.D. at 40. Because the probability of a large damage recovery is remote, absent court-awarded attorneys’ fees, plaintiffs or their lawyers who bring class actions seeking to preserve civil liberties usually must make substantial finan- , cial sacrifices. In addition, a lawyer representing black plaintiffs in an employment discrimination case, or in any civil rights litigation, is likely to suffer social, political and community ostracism. This likelihood is multiplied, of course, in a case such as the present one in which plaintiffs have sued high-ranking state officials and have alleged and proved racial discrimination. Even more damaging to an attorney involved in such litigation is the probability that he will be estranged from other members of his profession who are unwilling to participate in, or even lend moral support to, suits seeking to vindicate the public good. Because of these factors and the paucity of damage awards in civil rights suits, private plaintiffs and lawyers generally spurn involvement with them. Consequently, as pointed out in Sims v. Amos, in order to encourage pro bono publico litigation and to carry out congressional policy, an award of attorneys’ fees is essential. Accordingly, it is the order, judgment and decree of this Court: 1. That plaintiffs’ costs in the amount of $889.67 be and the same are hereby taxed against defendants; 2. That the United States’ costs in the amount of $941.01 be and the same are hereby taxed against defendants; and 3. That attorneys’ fees in the amount of $3,500 be and the same are hereby taxed against defendants. It is further ORDERED that said costs and attorneys’ fees be paid within thirty days from this date. . Because the supporting staff of the Alabama Department of Public Safety is essentially identical to those personnel who were the focus of this Court’s order in United States v. Frazer, 317 F.Supp. 1079 (M.D.Ala.1970), and because these employees are obtained from the defendant Frazer’s Department, this Court determined that the aspect of plaintiffs’ complaint related to these positions would be treated as a motion for supplemental relief under the Frazer decision. Nevertheless," }, { "docid": "1760811", "title": "", "text": "it discussed it in Newman v. Piggie Park Enterprises, supra, where the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3(b) permitted an award of counsel fees in the court’s discretion. See also Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (May 15, 1974), where the Court noted the high priority particularly accorded desegregation matters. In Northcross v. Memphis Board of Education, 412 U.S. 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973), the Court expressly declined to consider whether and under what circumstances an award of attorneys’ fees might be permissible in § 1983 litigation. . Many of the cases fail to distinguish between awards made under §§ 1981, 1982 and 1983 even though these sections are derived from separate statutes and the rationale applicable to § 1982, for examjjle, may not apply to § 1983. See, e. g., Lee v. Southern Home Sites Corp., supra, where the court cites the absence of criminal sanctions to enforce § 1982 as one reason to encourage private attorney general actions. . See note 2, supra. . The former district attorney of Philadelphia would be liable under this order for a share of the counsel fees awarded the plaintiffs even though no member of the district attorney’s staff was in any way involved in the incidents which convinced the court that injunctive relief was required. In Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966), this court held that the district attorney is not liable for damages under § 1983 because of judicial immunity. . In discussing fees, the district court did say that “punitive measures are not called for” and that “no conscious policy of permitting or encouraging widespread violations of constitutional rights by police officers” existed. . The court’s opinion noted that a cause of action under 28 U.S.C. § 1331 had been as serted and that therefore it was not significant that the college was not a “person” under § 1983. Since the parties to the litigation sub judiee argued only § 1983 jurisdiction, we consider only that theory. Moor v. County of Alameda," }, { "docid": "23629259", "title": "", "text": "grant the plaintiffs in this case the full relief, including attorneys’ fees, to which they are clearly entitled. Such practices on the part of federal agencies do not constitute any type of a defense in this ease. Relief as to the federal agencies must await a justiciable presentation to a forum with competent jurisdiction between parties entitled to litigate the matter. . With regard to an award of attorneys’ fees, it is of no consequence that 42 U.S. C. § 1983, the statute under which plain tiffs filed this suit, is silent on the availability of such an award. See Long v. Georgia Kraft Co., 455 F.'2d 331 (5th Cir., 1972), and the many cases cited therein; Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972). . Title VII of the Civil Rights Act of 1964 provides for the allowance of a reasonable attorneys’ fee. 42, U.S.C. § 2000e-5.(k). Consequently, had the state officials involved in this case been subject to suit under Title VII, they also would have been exposed to liability for attorneys’ fees. This Court sees no justification for holding state governments to lower standards than are required of private employers, nor for subjecting them to any less liability than that to which private employers are exposed. The same policies supporting a grant of attorneys’ fees in Title VII cases apply to employment discrimination cases brought under 42 U.S.C. §§ 1981, 1983. See generally, Lee v. Southern Home Sites, 444 F.2d at 147. . Title 42, Section 1982 provides: “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” . No official immunity inures to the benefit of the state officers named as defendants in this case. See Sims v. Amos, supra at n. 8." }, { "docid": "11894997", "title": "", "text": "706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(k), and the Civil Rights Attorneys’ Fees Awards Act of 1976, 42 U.S.C. § 1988, allow for the recovery of attorneys’ fees and costs by prevailing parties in suits brought under Title VII and under the Civil Rights Act of 1866 and 1871, 42 U.S.C. §§ 1981, 1983. The applicable sections of those Acts provide that “the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee as part of the costs.” 42 U.S.C. §§ 1988, 2000e-5(k). The statutory purpose of the provisions is to promote private enforcement of the Civil Rights Acts. S.Rep.No. 94-1011, 94th Cong. 2d Sess. 5, reprinted in [1976] U.S. Code Cong. & Ad. News 5908, 5912. Although the statutory language makes the award of attorneys’ fees discretionary, the general rule which has developed indicates that the prevailing party “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). That statement was further explained in N.Y. Gaslight Club, Inc. v. Kerry, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980): [I]t is clear that one of Congress’ primary purposes in enacting ... [Section 706(k) ] was to ‘make it easier for a plaintiff of limited means to bring a meritorious suit.’... Because Congress has cast the Title VII plaintiff in the roll of ‘a private attorney general,’ vindicating a policy ‘of the highest priority,’ a prevailing plaintiff ‘ordinarily is to be awarded attorney’s fees in all but special circumstances.’ [Citations omitted.] It is clear that Congress intended to facilitate the bringing of discrimination complaints. 447 U.S. at 63, 100 S.Ct. at 2030. This court has interpreted Newman and the applicable legislative history to indicate that “[a] prevailing plaintiff in a § 1983 action should receive fees almost as a matter of course....” Busch e v. Burkee, 649 F.2d 509, 521 (7th Cir.), cert. denied, 50 U.S.L.W. 3278 (Oct. 13, 1981) (quoting Davis v. Murphy," }, { "docid": "22662330", "title": "", "text": "judgment. Defendant cross-appeals. Section 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. A. § 2000e-5(k), provides that: In any action or proceeding under this subchapter the Court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of the cost of the litigation. The purpose of this provision is to effectuate the congressional policy against racial discrimination. Clark v. American Marine Corp., 320 F.Supp. 709 (E. D.La.1970), aff’d, 437 F.2d 959 (5th Cir. 1971). In discussing a similar provision in Title II, the United States Supreme Court observed that If [the plaintiff] obtains an injunction, he does so not for himself alone but also as a “private attorney general,” vindicating a policy that Congress considered of the highest priority. If successful plaintiffs were routinely forced to bear their own attorneys’ fees, few aggrieved parties would be in a position to- advance the public interest by invoking the injunctive powers of the federal courts. Congress therefore enacted the provision for counsel fees — not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief .... Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). This Court, as part of its obligation “to make sure that Title VII works,” has liberally applied the attorney’s fees provision of Title VII, recognizing the importance of private enforcement of civil rights legislation. See Clark v. American Marine Corp., supra; Rowe v. G. M. Corp., 457 F.2d 348 (5th Cir. 1972); Long v. Georgia Kraft Co., 455 F.2d 331 (5th Cir. 1972); Lee v. Southern Home Sites Co., 444 F.2d 143 (5th Cir. 1971). We are mindful that it is within the discretion of the District Court whether to award attorney’s fees against a party. Weeks v. Southern Bell Tel. & Tel., 467 F.2d 95 (5th Cir. 1972); Culpepper v. Reynolds Metals Co., 442 F.2d 1078 (5th Cir. 1971). See 6 Moore, Federal Practice 54.77. This Court, however, may review the" }, { "docid": "23180306", "title": "", "text": "more appropriate, justification for the Court’s award, however, evolves from a kind of benefit theory. See Mills v. Electro Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed. 2d 593 (1970). Plaintiffs bringing suits to enforce a strong national policy often benefit a class of people far broader than those actually involved in the litigation. Such plaintiffs, who are said to act as “private attorneys general,” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), rarely recover significant damage awards. Moreover, if a violation of civil rights is alleged or if some other challenge to constituted authority is involved, these plaintiffs and their attorneys may confront other, more personal obstacles to the maintenance of their public-minded suits. See NAACP v. Allen, 340 F.Supp. 703 (M.D.Ala.1972). Consequently, in order to eliminate the impediments to pro bono publico litigation and to carry out congressional policy, an award of attorneys’ fees not only is essential but also is legally required. See Lee v. Southern Home Sites, 444 F.2d 143 (5th Cir. 1971); Sims v. Amos, 336 F.Supp. 924 (M.D.Ala.1972); NAACP v. Allen, supra; Bradley v. School Bd. of Richmond, 53 F.R.D. 28 (E.D.Va.1971). The present action clearly is one intended to be encouraged by the benefit rule. By successfully prosecuting this suit, plaintiffs have benefitted not only the present residents of Bryce, Partlow and Searcy but also everyone who will be confined to those institutions in the future. Veritably, it is no overstatement to assert that all of Alabama’s citizens have profited and will continue to profit from this litigation. So prevalent are mental disorders in our society that no family is immune from their perilous incursion. Consequently, the availability of institutions capable of dealing successfully with such disorders is essential and, of course, in the best interest of all Alabamians. Despite plaintiffs’ having benefitted so many people, however, they neither sought nor recovered any damages. Nevertheless, the expenses they incurred in vindicating the public good were considerable. To burden only plaintiffs with these costs not only is unfair but also is legally impermissible. See" }, { "docid": "23629252", "title": "", "text": "the vindication of federal rights violated under color of state law, 42 U.S.C. § 1983, and, more specifically, the enforcement and protection of the right to equal job opportunities, 42 U.S.C. §§ 2000e, 2000e-l to 2000e-15. Surely, this congressional policy is as compelling as that embodied in 42 U.S.C. § 1982 and given effect by an award of attorneys’ fees in Lee v. Southern Home Sites, supra. Consequently, because the benefit to plaintiffs’ class is significant, and because, in bringing this suit, plaintiffs have promoted the purposes of congressional legislation, the case sub judice clearly falls among those meant to be encouraged under the principles articulated in Piggie Park Enterprises, Inc. and Mills and expanded upon in Southern Home Sites and Bradley v. School Bd. of Richmond, 53 F.R.D. 28 (E.D.Va.1971). See Sims v. Amos, supra. Other circumstances also render an allowance of attorneys’ fees appropriate. The prosecution of the kind of case involved here, like that of the desegregation suits described in Bradley, “is an enterprise on which any private individual should shudder to embark.” 53 F.R.D. at 40. Because the probability of a large damage recovery is remote, absent court-awarded attorneys’ fees, plaintiffs or their lawyers who bring class actions seeking to preserve civil liberties usually must make substantial finan- , cial sacrifices. In addition, a lawyer representing black plaintiffs in an employment discrimination case, or in any civil rights litigation, is likely to suffer social, political and community ostracism. This likelihood is multiplied, of course, in a case such as the present one in which plaintiffs have sued high-ranking state officials and have alleged and proved racial discrimination. Even more damaging to an attorney involved in such litigation is the probability that he will be estranged from other members of his profession who are unwilling to participate in, or even lend moral support to, suits seeking to vindicate the public good. Because of these factors and the paucity of damage awards in civil rights suits, private plaintiffs and lawyers generally spurn involvement with them. Consequently, as pointed out in Sims v. Amos, in order to encourage pro" }, { "docid": "23180307", "title": "", "text": "Cir. 1971); Sims v. Amos, 336 F.Supp. 924 (M.D.Ala.1972); NAACP v. Allen, supra; Bradley v. School Bd. of Richmond, 53 F.R.D. 28 (E.D.Va.1971). The present action clearly is one intended to be encouraged by the benefit rule. By successfully prosecuting this suit, plaintiffs have benefitted not only the present residents of Bryce, Partlow and Searcy but also everyone who will be confined to those institutions in the future. Veritably, it is no overstatement to assert that all of Alabama’s citizens have profited and will continue to profit from this litigation. So prevalent are mental disorders in our society that no family is immune from their perilous incursion. Consequently, the availability of institutions capable of dealing successfully with such disorders is essential and, of course, in the best interest of all Alabamians. Despite plaintiffs’ having benefitted so many people, however, they neither sought nor recovered any damages. Nevertheless, the expenses they incurred in vindicating the public good were considerable. To burden only plaintiffs with these costs not only is unfair but also is legally impermissible. See e. g., Mills v. Electro Auto-Lite Co., supra ; Lee v. Southern Home Sites, supra. Considerations of equity require that those who profit share the expense. In this case, the most logical way to spread the burden among those benefitted is to grant attorneys’ fees. Plaintiffs clearly are entitled to a reasonable award. This Court must consider, therefore, what is reasonable under the circumstances. Factors relevant to the Court’s determination generally are the same as those covering grants of attorneys’ fees in commercial cases. See Bradley v. School Bd. of Richmond, supra. They include the intricacy of the case and the difficulty of proof, the time reasonably expended in the preparation and trial of the case, the degree of competence displayed by the attorneys seeking compensation and the measure of success achieved by these attorneys. In public interest cases, courts also should consider the benefit inuring to the public, the personal hardships that bringing this kind of litigation causes plaintiffs and their lawyers, and the added responsibility of representing a class rather than only individual" }, { "docid": "22315512", "title": "", "text": "When a suit alleging violation of clearly established law in a particular area is filed, and the defendants, in the face of evident violation of this law, persist in forcing the plaintiffs to expend efforts in preparing and/or conducting a trial, then attorneys’ fees may appropriately be awarded. Bradley v. School Board of the City of Richmond, Va., supra. This factor has been decisive on the issue of attorneys’ fees in other reapportionment suits. See Sims v. Amos, 340 F.Supp. 691, 694 (M.D.Ala.) (three-judge court), aff’d. per curiam, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972); Dyer v. Love, 307 F.Supp. 974 (N.D.Miss.1969). The second supporting rationale, the private attorney general theory, is derived from the Supreme Court opinions in Newman v. Piggie Park Enterprises, Inc., supra; and Mills v. Electric Auto-Lite Co., supra, 396 U.S. at 389-397. The theory is that private plaintiffs have aided in effectuating important congressional and public policies. Attorneys’ fees have not only been granted in'suits brought under the Civil Rights Act, 42 U.S.C.A. §§ 1981, 1982, 1983, e. g., Sims v. Amos, supra (section 1983); Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972) (section 1981); Lee v. Southern Home Sites Corp., supra, 444 F.2d 143 (section 1982); Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972) (section 1982) ; Jinks v. Mays, 350 F. Supp. 1037 (N.D.Ga.1972) (sections 1981-1983); NAACP v. Allen, 340 F.Supp. 703, 708-710 (M.D.Ala.1972) (section 1983), but also under various other federal statutes, e. g., Yablonski v. United Mine Workers, 151 U.S.App.D.C. 253, 466 F.2d 424 (1972), cert. denied, 412 U.S. 918, 93 S.Ct. 2729, 37 L.Ed.2d 144 (1973) (labor-management recording and disclosure act); La Raza Unida v. Volpe, supra, 57 F.R.D. 94 (various federal transportation statutes). Having affirmed the allowance of attorneys’ fees, a second question, of whether the court abused its discretion in limiting the awarded amount and in denying expenses, arises. The court’s verbalized reason for denying expenses and limiting attorneys’ fees, for the “much greater service” performed by the original plaintiffs than the intervenor, is that the funds would flow into the “coffers of" }, { "docid": "5659245", "title": "", "text": "burden occasioned by rising counsel fees, coupled with the often minuscule nature of damages, if any, recovered under the Act, private litigation has been stifled, and the policy upon which the Act is premised has gone unfulfilled. Cf., Newman v. Piggie Park Enterprises, supra. Accordingly, the operation of the traditional American rule has served as an obstacle to a judicial determination of rights. Viewed in this perspective, utilization of the Court’s equitable powers to award attorneys’ fees is appropriate not only to compensate those unnecessarily required to seek judicial enforcement of rights guaranteed by the United States Constitution, but more importantly to encourage private litigation and thereby effectuate the underlying congressional purpose embodied in § 1983. As noted in Stanford Daily v. Zurcher, swpra, 366 F.Supp. at 24: “42 U.S.C. § 1983 and its jurisdictional concomitant, 28 U.S.C. § 1343(3) represents congressional indication that federal courts should use their equitable powers to insure vindication of the rights protected by the Constitution and laws from infringement by those acting under color of state law. . The raison d’etre of 42 U.S. C. § 1983 is to encourage the vindication of constitutional rights, to promote litigation of the rights involved, and to give the courts leeway to fashion appropriate remedies. Cf., 42 U. S.C. § 1988.” (Citations omitted.) Accordingly, it is clear that Congress did not intend to preclude an award of attorneys’ fees as a means of effectuating statutory policy. C. Benefit. Although the plaintiff did not bring a class action or obtain far reaching equitable relief, it can hardly be doubted that she rendered a significant service to others not party to the suit. As previously noted, she occupied the status of a “private attorney general” in bringing this action, and as a result of her efforts significant congressional policy was vindicated. In essence, the public at large was the ultimate beneficiary of the plaintiff’s suit. Under an expansive interpretation of the “benefit” rationale approved in Mills, an award of attorneys’ fees would therefore be appropriate. Natural Resources Defense Council, Inc. v. Environmental Protection Agency, supra. In addition, however, the" }, { "docid": "1608991", "title": "", "text": "fees and expenses in connection with any further proceedings. . This case was reassigned to me after the death of Judge Gorbey. I ordered the submission of additional evidence and briefs on the GS-12 promotion question. . This section provides: In any action or proceeding under this sub-chapter the court, in its discretion, may allow the prevailing party, other than the Commission or the United States a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person. This provision is specifically applicable to employment discrimination suits brought against the federal government under the Equal Employment Opportunity Act of 1972. 42 U.S.C. § 2000e-16(d). A prevailing plaintiff ordinarily is to be awarded attorney’s fees in all but “special circumstances,” i. e., where an award would be unjust. Christianburg Garment Co. v. EEOC, 434 U.S. 412, 417-18, 98 S.Ct. 694, 698, 54 L.Ed.2d 648 (1978). This case presents no “special circumstances” which would dictate denial of an award of attorney’s fees. Rather, an award here will serve to encourage representation of similarly situated plaintiffs by competent counsel thereby vindicating “a policy that Congress considered of the highest priority.” Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). . Although Sweetlowich, Bagby, and Hughes, supra, concerned counsel fee awards to prevailing parties under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, these cases are instructive as to the appropriate reading of 42 U.S.C. § 2000e-5(k) since the provision for counsel fees in section 1988 was patterned in part after section 2000e-5(k). Hanrahan v. Hampton, 446 U.S. 754, 758, 100 S.Ct. 1987, 1989 n. 4, 64 L.Ed.2d 670 (1980). . I adopt the definition of complexity of issues propounded in Meisel v. Kremens, 80 F.R.D. 419, 425 (E.D.Pa.1978) and subsequently followed in Swicker v. William Armstrong & Sons, Inc., supra, 484 F.Supp. at 767 n. 1: “[A] legal issue may be said to be complex where it was ‘unsettled when the complaint was filed [or]" }, { "docid": "23428567", "title": "", "text": "and in this case, despite the availability of that ground, the Court has decided to base its award on far broader considerations of equity. In instituting the case sub judice, plaintiffs have served in the capacity of “private attorneys general” seeking to enforce the rights of the class they represent. See generally Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970). If, pursuant to this action, plaintiffs have benefited their class and have effectuated a strong congressional policy, they are entitled to attorneys’ fees regardless of defendants’ good or bad faith. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). Indeed, under such circumstances, the award loses much of its discretionary character and becomes a part of the effective remedy a court should fashion to encourage public-minded suits, id., and to cany out congressional policy. Lee v. Southern Home Sites, 444 F.2d 143 (5th Cir. 1971). The present case clearly falls among those meant to be encouraged under the principles articulated in Piggie Park Enterprises, Inc. and Mills, and expanded upon in Southern Home Sites and Bradley. The benefit accruing to plaintiffs’ class from the prosecution of this' suit cannot be overemphasized. No other right is more basic to the integrity of our democratic society than is the right plaintiffs assert here to free and equal suffrage. In addition, congressional policy strongly favors the vindication of federal rights violated under color of state iaw, 42 U.S.C. § 1983, and, more specifically, the protection of the right to a nondiscriminatory franchise. See the Voting Rights Act of 1965, 79 Stat. 437, 42 U.S.C. § 1973; the Civil Rights Acts of 1964, 78 Stat. 241, 42 U.S.C. § 1971; of 1960, 74 Stat. 86, and of 1957, 71 Stat. 634; and U.S.Const., amends. XIV and XV. It is of no consequence that the statute under which plaintiffs filed this suit, 42 U.S.C. § 1983, is silent on the availability of attorneys’ fees. See Long v. Georgia Kraft" }, { "docid": "5659244", "title": "", "text": "individual constitutional rights was too important a task to be left in the hands of state and local authorities who, in many instances, were the perpetrators of constitutional deprivations. It therefore provided a method of private enforcement of those rights. As a result, the burden of assuring full compliance with the Constitution has devolved upon private concerned citizens, such as the plaintiff, and their attorneys. Lee v. Southern Home Sites Corp., supra, 429 F.2d at 295. It must, therefore, be said that a citizen seeking relief under the Civil Rights Act acts not only for himself or herself, but also as a “private attorney general,” enforcing rights cherished by us all. See, Jinks v. May, supra; NAACP v. Allen, supra; Knight v. Auciello, supra; Long v. Georgia Kraft Co., 455 F.2d 331 (5th Cir. 1972), and the cases cited therein. In clothing the private citizenry with this status and burden, however, Congress did not specifically provide for the award of attorneys’ fees to successful litigants suing under § 1983. As a result of the financial burden occasioned by rising counsel fees, coupled with the often minuscule nature of damages, if any, recovered under the Act, private litigation has been stifled, and the policy upon which the Act is premised has gone unfulfilled. Cf., Newman v. Piggie Park Enterprises, supra. Accordingly, the operation of the traditional American rule has served as an obstacle to a judicial determination of rights. Viewed in this perspective, utilization of the Court’s equitable powers to award attorneys’ fees is appropriate not only to compensate those unnecessarily required to seek judicial enforcement of rights guaranteed by the United States Constitution, but more importantly to encourage private litigation and thereby effectuate the underlying congressional purpose embodied in § 1983. As noted in Stanford Daily v. Zurcher, swpra, 366 F.Supp. at 24: “42 U.S.C. § 1983 and its jurisdictional concomitant, 28 U.S.C. § 1343(3) represents congressional indication that federal courts should use their equitable powers to insure vindication of the rights protected by the Constitution and laws from infringement by those acting under color of state law. . The" }, { "docid": "6342464", "title": "", "text": "settlement was substantially induced by Moore’s voluntary offer to waive fees and costs. Because we cannot know what portion of the settlement was achieved through the waivers, it would be impermissible speculation to determine whether plaintiffs are “prevailing parties.” True, Congress’ concern in enacting fee-shifting provisions extended to a category of cases where the potential financial rewards were not commensurate with the social importance of ending employment discrimination. Newman v. Piggie Park Enterprises, Inc., supra, 390 U.S. at 402, 88 S.Ct. at 966. However, as the Supreme Court has noted, “Congress has not authorized an award of fees whenever it was reasonable for a plaintiff to bring a lawsuit.” Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). Judging from the circumstances of this case, we do not find that these waivers offend congressional policy designed to award fees to only “prevailing” plaintiffs. III. Conclusion In conclusion, we emphasize the narrowness of this decision. Moore, a Title VII plaintiff, was free voluntarily to offer to waive claims to costs in a class action suit, and contemporaneously, through counsel, free voluntarily to offer to waive claims to attorneys’ fees awardable under 42 U.S.C. § 2000e-5(k). The settlement based on Moore’s voluntary offers poses no threat to the policies of Title VII enforcement while furthering the public policy in favor of encouraging voluntary settlement of disputes. The district court’s order approving the settlement agreement is affirmed. Judgment accordingly. . Moore and class members also petitioned the court to modify the settlement decree to provide against possible retaliation, to include assurances of equal pay, and to increase the frequency of reporting requirements (J.A. 127-34). . Moore’s lead counsel, Mr. David N. Webster, indicated that his firm and the Washington Lawyers’ Committee for Civil Rights Under Law had expended $31,610.88, largely on expert witness fees (J.A. 192). Moore herself had expended $3,617.99 on legal fees and costs to prior counsel (J.A. 191). . A lawyer is precluded from subsidizing a client’s lawsuit. See ABA Model Rules of Professional Conduct Rule 1.8(e). . The consent decree is reproduced in" }, { "docid": "23428568", "title": "", "text": "falls among those meant to be encouraged under the principles articulated in Piggie Park Enterprises, Inc. and Mills, and expanded upon in Southern Home Sites and Bradley. The benefit accruing to plaintiffs’ class from the prosecution of this' suit cannot be overemphasized. No other right is more basic to the integrity of our democratic society than is the right plaintiffs assert here to free and equal suffrage. In addition, congressional policy strongly favors the vindication of federal rights violated under color of state iaw, 42 U.S.C. § 1983, and, more specifically, the protection of the right to a nondiscriminatory franchise. See the Voting Rights Act of 1965, 79 Stat. 437, 42 U.S.C. § 1973; the Civil Rights Acts of 1964, 78 Stat. 241, 42 U.S.C. § 1971; of 1960, 74 Stat. 86, and of 1957, 71 Stat. 634; and U.S.Const., amends. XIV and XV. It is of no consequence that the statute under which plaintiffs filed this suit, 42 U.S.C. § 1983, is silent on the availability of attorneys’ fees. See Long v. Georgia Kraft Co., 455 F.2d 331, 5th Cir., 1972, and the many cases cited therein; Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972). Despite the benefit to plaintiffs’ class, however, and despite this suit’s effectuating the purposes of congressional legislation, the case sub judice is one most private individuals would hesitate to initiate and litigate. Circumstances described in Bradley as rendering school desegregation suits unattractive to prospective plaintiffs apply with equal force to reapportionment cases: “ . . . No substantial damage award is ever likely, and yet the costs of proving a case for injunctive relief are high. To secure counsel willing to undertake the job of trial, including the substantial duty of representing an entire class . . . necessarily means that someone — -plaintiff or lawyer — must make a great sacrifice unless equity intervenes. . . . ” Consequently, in order to attempt to eliminate these impediments to pro bono publico litigation, such as is here involved, and to carry out congressional policy, an award of attorneys’ fees is essential. As to" }, { "docid": "5659231", "title": "", "text": "Court in Newman recognized that, although enacting statutes to im plement strong national policy, Congress would often leave the enforcement of that policy to private individuals of limited financial means; that plaintiffs bringing suits to enforce that policy would often benefit a class of people far broader than those actually involved in the litigation; that such plaintiffs would normally only seek equitable relief and rarely recover significant damage awards; and that if forced to bear their own attorneys’ fees few aggrieved parties would be in a position to further the public interest. An award of attorneys’ fees therefore served to: (1) eliminate the impediments to pro bono publico litigation; and (2) carry out congressional policy. Admittedly, Newman involved a suit brought under a civil rights statute which makes specific allowance for attorneys’ fees, but it has nonetheless touched a responsive chord. Relying upon the “private attorney general” concept recognized in Newman, a logical extension of the “benefit” rationale adopted in Mills, and the courts’ traditionally broad equity powers noted in Sprague, the federal judiciary has of late been increasingly willing to award attorneys’ fees, despite strict inapplicability of the traditional exceptions and the absence of specific statutory authority. See, Natural Resources Defense Council, Inc. v. Environmental Protection, 484 F.2d 1331 (1st Cir. 1973) (fees awarded to plaintiff seeking EPA compliance with Clean Air Amendments of 1970, 42 U.S.C. § 1857c-5 et seq.); Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972) (fees awarded to plaintiff claiming violation of 42 U. S.C. § 1981); Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972) (fees awarded to plaintiff claiming racial discrimination under 42 U.S.C. §§ 1981-1983, 1988); Donahue v. Staunton, 471 F.2d 475 (7th Cir. 1972) (fees awarded to plaintiff alleging violation of equal protection clause under 42 U.S.C. § 1983); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971) (fees awarded to plaintiff proving discrimination in housing under 42 U.S.C. § 1982); Stanford Daily v. Zurcher, 366 F.Supp. 18 (N.D.Cal.1973) (fees awarded to plaintiff claiming violation of Fourth Amendment under 42 U.S.C. § 1983); Sierra Club v. Lynn," }, { "docid": "22315519", "title": "", "text": ". United States v. S.C.R.A.P., supra, 412 U.S. at 689 n. 14. . The population of the voting districts, as malapportioned, totalled: District 1 26,992 District 2 9,761 District 3 17,572 District 4 1,820 District 5 1,704 . The original plaintiffs allege that they represent the class of all qualified electors. This class is clearly not proper under Fed.R.Civ.P. 23 (a) (3) and (4) because included are both electors in districts who are benefited by the reapportionment plan, and those in districts prejudiced by underrepresentation. 3B Moore’s Federal Practice 1f 23.07. . See Skolnick v. Board of Commissioners of Cook County, supra, 435 F.2d 361. See the cases cited in note 4, supra. . The three principle rationales for allowing attorneys’ fees have been, (1) “unreasonably and obdurately obstinate” behavior, (2) private attorney general theory, and (3) the common fund situation. See La Raza Unida v. Volpe, supra, 57 F.R.D. 94; Bradley v. School Board of the City of Richmond, Va., 53 F.R.D. 28 (E.D.Va.1971) ; Nussbaum, Attorneys’ Fees and Public Interest Litigation, 48 N.Y.U.L.Rev. 301 (1973). Cf. Mills v. Electric Auto-Lite Company, 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970) ; Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) ; Lee v. Southern Home Sites Corp., supra, 444 F.2d 143. . Court costs not subsumed under federal statutory provisions normally granting such costs against the adverse party, Fed.R.Civ. P. 54(d) ; 6 Moore’s Federal Practice ¶ 54.70, 54.71, are to be included in the concept of attorneys’ fees. Of course, it may be disputed whether such expenses should have to meet the harder discretionary standards or fall within the statutory authorizations. See Sims v. Amos, supra, 340 F.Supp. at 695, n. 11. . The attorneys for the original plaintiffs are employed by the Lawyers Committee for Civil Rights Under Law. There is no indication in the record that this organization, the attorneys, or the plaintiffs have any association with the Ford Foundation. . Miller v. Amusement Enterprises, Inc., 426 F.2d 534, 538-539, n. 14 (5th Cir. 1970) ; Clark" }, { "docid": "23428566", "title": "", "text": "even total disregard for, its constitu tional obligation to reapportion. Al-though the legal principles applicable to this case were clear to the Legislature and had often been pointed out and emphasized by this Court in an effort to prompt legislative action, , and although the 1970 decennial census demonstrated that the Alabama Legislature was egregiously malapportioned, the Legislature unyieldingly refused to perform the mandate imposed upon it by both the State and Federal Constitutions. It is indisputable that the Legislature’s deliberate failure to act precipitated and in fact necessitated this litigation. Justice would not be served were .that body to escape responsibility for attorneys’ fees. In addition to the Legislature’s inaction as a factor which necessitated this suit, the submissions of obviously unacceptable plans by other of the defendants also could be characterized as acts of bad faith which contributed to the expense of litigation. See Bradley v. School Bd. of Richmond, 53 F.R.D. 28 (E.D.Va.1971). Nevertheless, a finding of bad faith is not always a prerequisite to the taxing of attorneys’ fees against defendants, and in this case, despite the availability of that ground, the Court has decided to base its award on far broader considerations of equity. In instituting the case sub judice, plaintiffs have served in the capacity of “private attorneys general” seeking to enforce the rights of the class they represent. See generally Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970). If, pursuant to this action, plaintiffs have benefited their class and have effectuated a strong congressional policy, they are entitled to attorneys’ fees regardless of defendants’ good or bad faith. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). Indeed, under such circumstances, the award loses much of its discretionary character and becomes a part of the effective remedy a court should fashion to encourage public-minded suits, id., and to cany out congressional policy. Lee v. Southern Home Sites, 444 F.2d 143 (5th Cir. 1971). The present case clearly" }, { "docid": "23629250", "title": "", "text": "856, 6 L.Ed.2d 45 (1961); Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Morrow v. Crisler, supra, and because defendants unquestionably knew and understood that their discriminatory practices violated the Fourteenth Amendment to the United States Constitution, see United States v. Frazer, 317 F.Supp. 1079 (M.D.Ala.1970), their defense of this lawsuit amounts to unreasonable and obdurate conduct which necessitated the expense of litigation. Consequently, because of defendants’ bad faith, this case is an appropriate one for the awarding of a reasonable attorneys’ fee. This Court, however, feels that the attorneys’ fee award should be premised on a broader basis than defendants’ bad faith. When plaintiffs, through the prosecution of a lawsuit, benefit the class they represent and effectuate a strong congressional policy, they are entitled to attorneys’ fees regardless of defendants’ good or bad faith. Mills v. Electro Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970); see Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); Miller v. Amusement Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970). Indeed, under such circumstances, the award loses much of its discretionary character and becomes a part of the effective remedy a court should fashion to encourage public-minded suits and to carry out congressional policy. See Lee v. Southern Home Sites, 444 F.2d 143 (5th Cir. 1971); Sims v. Amos, 340 F.Supp. 691 (M.D.Ala., 1972) (three-judge court). In the present case, the benefit accruing to plaintiffs’ class is substantial and important. Employment discrimination based upon race is reprehensible on any level, and especially so when practiced by state government. Those plaintiffs acting in the capacity of private attorneys general, who establish the existence of such discrimination by a state agency and who, through litigation, procure relief from its onerous effects, not only provide the members of their class with added employment opportunities, but also relieve them of the badge of opprobrium which necessarily attaches to a group discriminatorily excluded, solely by reason of their race, from particular fields of endeavor. In addition, congressional policy strongly favors" } ]

[ { "docid": "8477819", "title": "", "text": "L.Ed.2d 903 (1992). Specifically, the Supreme Court rejected the reasoning of Tanner, and held § 506(d) does not allow a chapter 7 debtor to “strip down” a lien to the extent it is unsecured. Id. at 417, 112 S.Ct. 773. The Court confirmed the preCode rule that liens pass through bankruptcy unaffected, and any increase in the value of the property accrues to the benefit of the creditor and not the debtor. Id. at 417-18, 112 S.Ct. 773. Accordingly, Dewsnup instructs that Lampert’s hen passed through bankruptcy unaffected. Any post-bankruptcy reduction of the First Trust Deed accrued to Lampert, unless Lampert’s lien is avoided. Although not argued, the Court has considered whether § 522(f)(2)(A) supplies the operative date to value the liens. This section sets forth the mathematical formula to determine whether a lien “impairs” an exemption. But it does not specify the operative date for purposes of applying the formula. The legislative history for this section is also silent concerning the operative date. Accordingly, § 522(f)(2)(A) is not helpful. The Court holds the petition date is the operative date to make all § 522(f) determinations. This approach is consistent with Dewsnup because it allows a lien creditor to enjoy the increase in value if the lien is not avoided. However, it also preserves the parties’ rights as they existed on the petition date to the extent the lien is avoidable under § 522(f). Further, the petition date is also the most logical date. The Court must value the residence and the Debtor’s entitlement to an exemption on the petition date. As the amount of the liens is relevant to these determinations, it makes sense to value the liens on the same date. The only possible exception would be where the debtor moves to avoid a judicial hen post-discharge and the creditor shows prejudicial delay. In that situation, the debtor’s post-discharge motion to avoid the lien should be time-barred. Alternatively, if the motion were allowed to proceed, the injured creditor could argue the hens should be valued as of the hearing date. See e.g. In re Ricks, 62 B.R. 681," } ]

[ { "docid": "19740679", "title": "", "text": "the exemption’s protection of a debtors’ property in New York. Section 522(b)(3)(A) specifically notes that exemptions under the statute are limited to “any property that is exempt under ... State or local law that is applicable on the date of the filing of the petition ...” (emphasis added). If, under New York law, the increased exemption does not apply to contract debts incurred before the effective date of the increase, then pre-enactment contract creditors have the benefit of the lower exemption level while post-enactment contract creditors face the higher exemption. In both cases, their claims against the estate are governed by the trustee’s “perfect lien,” but are limited by the scope of the exemption as defined by New York law. Debtors also argue that Owen v. Owen, 500 U.S. 305, 111 S.Ct. 1833, 114 L.Ed.2d 350 (1991) applies here and requires that federal, not New York, law governs the applicability of the increased homestead exemption amount. In Owen, the Supreme Court interpreted a different Bankruptcy Code provision — 11 U.S.C. § 522(f), the lien avoidance provision — which, at that time, provided that “[njotwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under [§ 522(b) ], if such lien is — (1) a judicial lien; or (2) a nonpossessory, nonpurchasemoney security interest....” Owen, 500 U.S. at 309, 111 S.Ct. 1833 (quoting 11 U.S.C. § 522(f) (1990) (internal quotation marks omitted)). Although Florida law excluded certain property from the scope of its homestead act (i.e., property subject to a pre-existing judgment lien), the Supreme Court held that the debtor was nevertheless permitted to avoid the preexisting hen that impaired his homestead exemption under § 522(f). See Owen, 500 U.S. at 312-14, 111 S.Ct. 1833. Owen, however, does not require application of the increased homestead exemption in this ease, where Debtors seek to exempt property from the reach of creditors pursuant to a state-created exemption without regard to whether New York intended" }, { "docid": "23253911", "title": "", "text": "his homesteaded property, in proportion to the amount of the attached liens. In this way, the mere attachment of the lien may effectively preclude the judgment debtor from obtaining the full potential value of his homestead. 25 B.R. at 333. This caution is echoed by other courts and commentators, who are concerned that unsecured liens allowed to remain on the debtor’s property will impair a debtor’s fresh start by partaking in post-petition property acquisitions and equity build up. See In re Rappaport, 19 B.R. 971, 973 (E.D.Pa.1982); Bowmar, Avoidance of Judicial Liens that Impair Exemptions in Bankruptcy, 63 Am.Bankr. L.J. 375, 389 (1989). We therefore hold that the unsecured portion of a judicial lien is properly avoided under Section 522(f) as it “impairs” the debtor’s right to fully realize any homestead exemption and post-petition property appreciation. Our holding is in accord with such cases as In re Rehbein, 49 B.R. 250 (D.Mass.1985), which states that: Where the value of the unavoidable liens and the total amount of the Debtor’s claimed exemptions exceeds the value of a bankrupt’s property, judicial liens may be avoided to their full extent, because any payment toward such liens would impair the Debtor’s exemptions (Emphasis added). 49 B.R. at 253. See also In re Brown, 734 F.2d 119, 125 (2d Cir.1984); In re Pitre, 11 B.R. 777, 780-81 (N.D.Ill.1981); In re Carney, 47 B.R. 296, 299 (D.Mass.1985); Bowmar, supra, 63 Am.Bankr.L.J. at 389-90. In the instant case the trial court erred in refusing to avoid the entire judicial lien held by the Parents, as it impairs the debtors’ homestead rights, in its entirety. Therefore, the entire $32,182 lien should have been avoided on the debtors’ Section 522(f) motion. In reaching this decision the Panel notes the more complex scenario presented in such cases as In re Chabot, supra, 100 B.R. 18. There the judicial lien creditor may wish to challenge the bona fides of consensual liens in order to establish fully if there is any impairment of the debtor’s exemption rights. We believe that in the context of a contested matter brought under Section 522(f)(1), a" }, { "docid": "2180057", "title": "", "text": "establish the value of the homestead property at $72,000.00 as of the day the petition was filed. With respect to a federal tax lien recorded against the homestead property on January 16, 1982, in the amount of $15,605.36, the debtors testified that a current balance of $7,360.00 exists on a balance of $7,182.57 outstanding as of the date the petition for relief was filed. The substance of this testimony was not disputed; the tax lien balance outstanding appears as $7,182.57 in the debtors’ chapter 13 statement. It was also established at the hearing that the debtors’ homestead property is subject to a mortgage with an outstanding balance, as of the date of the petition, of $47,631.69, and is additionally subject to a further tax lien in the amount of $54.31, recorded against the homestead property on September 20, 1982. fair market value of residence $72,000.00 less: liens senior to that of judgment creditor: mortgage $47,631.69 tax lien, January, 1982 7,182.57 tax lien, September, 1982 54.31 54,868.57 debtors’ equity in homestead 17,131.43 less: homestead exemption ($7,500.00 x 2) 15,000.00 $ 2,131.43 The balance over, in the amount of $2,131.43, is the amount of the Bank’s lien not avoidable under Code section 522(f), being the extent to which the Bank’s judgment lien of March, 1983 does not impair the debtors’ homestead exemption. As the homestead exemption was effective as of the date the debtors filed their petition for relief, March 23, 1983, the judicial lien of the Bank against the residence of the debtors is enforceable in the amount of $2,131.43, together with interest on $2,131.43 at the legal rate beginning March 23, 1983. ORDER In accordance with the foregoing, it is ORDERED that the Motion of the debtors to set aside the judicial lien of the Continental Bank is granted to the extent of the value of their homestead exemption, i.e., $15,000.00, and DENIED to the extent of the value of the remaining equity, i.e., $2,131.43, of the debtors in the homestead property as of the date of the petition for relief." }, { "docid": "8477818", "title": "", "text": "a case decided under § 506(d) and did not consider avoidance of a judicial hen under § 522(f). It held § 506(d) allows a debtor to avoid a consensual hen securing real property to the extent the hen is unsecured. Id. at 937. The court reasoned this result is consistent with § 506(a) which hmits a secured claim to the value of the property as of the petition date. Id. at 936-37. Further, it reasoned that if the unsecured portion is not avoided, the partially secured creditor will partake in the appreciation of the property or the increase in equity due to reduction of debt, which are attributable to the debtor’s post- bankruptcy efforts. Id. Pursuant to this rationale, Debtors argue the liens must be valued as of the petition date to limit Lam-pert to its § 506(a) secured claim and protect their post-bankruptcy reduction of the First Trust Deed'. Apparently, Debtors are unaware that Tanner was reversed by the United States Supreme Court in Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992). Specifically, the Supreme Court rejected the reasoning of Tanner, and held § 506(d) does not allow a chapter 7 debtor to “strip down” a lien to the extent it is unsecured. Id. at 417, 112 S.Ct. 773. The Court confirmed the preCode rule that liens pass through bankruptcy unaffected, and any increase in the value of the property accrues to the benefit of the creditor and not the debtor. Id. at 417-18, 112 S.Ct. 773. Accordingly, Dewsnup instructs that Lampert’s hen passed through bankruptcy unaffected. Any post-bankruptcy reduction of the First Trust Deed accrued to Lampert, unless Lampert’s lien is avoided. Although not argued, the Court has considered whether § 522(f)(2)(A) supplies the operative date to value the liens. This section sets forth the mathematical formula to determine whether a lien “impairs” an exemption. But it does not specify the operative date for purposes of applying the formula. The legislative history for this section is also silent concerning the operative date. Accordingly, § 522(f)(2)(A) is not helpful. The Court holds the petition" }, { "docid": "1207595", "title": "", "text": "of the petition date, was $90,000. The outstanding mortgage balance as of the petition date was $80,446.08 and the debt ors have claimed a homestead exemption of $9,483.37. In accordance with § 522(f)(2), the respondent’s judgment lien impairs the debt- or’s exemption to the extent that it exceeds, as of the petition date, the value of the home, reduced by the mortgage and the debtors’ claimed exemption, i.e., to the extent it exceeds $70.55, calculated as follows: Value of the Home $90,000.00 -Mortgage Balance - $80,446.08 -Exemption - $ 9,483.37 Maximum Judgment Lien Remaining $ 70.55 Y. CONCLUSION In accordance with the forgoing discussion, the court concludes that the respondent’s judgment lien be avoided to the extent that it exceeds $70.55, and that judgment shall so enter. It is SO ORDERED. . From the evidence presented it is unclear how the respondent became the assignee of the deficiency judgment. Since the parties have raised no issue in this regard, the court will simply refer to the respondent. . Section 522(f)(1)(A) provides: (f)(1) Notwithstanding any waiver of exemptions ..., the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (A) a judicial lien.... . The outstanding balance after payment of the May, 2002 payment. (Exh. 6.) The amount scheduled in the petition, $80,516.63, was the amount shown on the line above the correct one in the amortization schedule. Because the debtors’ correction, conceded by debtors’ counsel at the hearing, operates in favor of the respondent, which has not objected to it, the court will use the corrected amount. This discrepancy accounts for the small amount of the judgment lien that remains unavoided." }, { "docid": "15916816", "title": "", "text": "Task, 80 B.R. 304, 306 (Bankr.D.N.J.1987) (allowing Chapter 13 debtor to utilize § 522(f) to avoid a judicial hen that impaired exemption). The hen avoidance power contained in § 522(f) enables the debtor to extinguish or partially avoid the judicial lien of a creditor in property that would otherwise be exempt but for the creditor’s hen. Section 522(f) sets forth the formula to determine the extent to which a hen impairs an exemption: (2)(A) For the purposes of this subsection, a lien shall be considered to impair an exemption to the extent that the sum of- (i) the lien, (ii) all other liens on the property; and (in) the amount of the exemption that the debtor could claim if there were no liens on the property; exceeds the value that the debtor’s interest in the property would have in the absence of any liens. 11 U.S.C. § 522(f)(2)(A). Utilizing this formula, a debtor is permitted to avoid only that portion of the lien that impairs the exemption. In the matter at hand, the Debtor claims that the fair market value of her home as of the petition date was $260,000. WAMCO does not dispute this amount, but claims that the value has likely increased since the petition was filed, and that the Court should value the West Orange property as of the confirmation date. The Court can find no support in the case law for WAM-CO’s position. Furthermore, it is in direct contradiction to § 522(a)(2) which provides, inter alia, that value means “... fair market value as of the date of filing of the petition.... ” Accordingly, for purposes of making the calculation under § 522(f)(2)(A) the Court will use the value of $260,000. The liens which must be considered are the first mortgage held by National City Mortgage in the amount of $200,103.65; a lien in favor of the IRS in the amount of $32,624.53; and the amended WAMCO claim in the amount of $225,221.51. The Debtor claimed an exemption in the homestead in the amount of $16,150.00 on Schedule C of her petition. The Calculation under the" }, { "docid": "1574758", "title": "", "text": "Judicial Lien is fully avoidable under this statute. i. Section 522(f)(1) provides that “the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled [under N.C. GemStat. 1C-1601], if such lien is a judicial lien ...” 11 U.S.C. § 522(f)(1)(A). This wording historically caused significant debate among courts regarding whether a lien greater than available exemptions could be avoided, but in 1994 Congress clarified the meaning by adding a formula for computing impairment: For purposes of [11 U.S.C. § 522(f)], a lien shall be considered to impair an exemption to the extent that the sum of — - (i) the lien; (ii) all other liens on the property; and (iii) the amount of the exemption that the debtor could claim if there were no liens on the property; exceeds the value that the debtor’s interest in the property would have in the absence of any liens. 11 U.S.C. § 522(f)(2)(A). ii. “Under Congress’s formula, a judicial lien may be avoided notwithstanding the fact that the amount of the lien exceeds the dollar amount of the applicable exemption.” In re Hemric, 333 B.R. 81, 83 (Bankr. M.D.N.C.2005); see also In re McQueen, 196 B.R. 31, 33 (E.D.N.C. 1995) (interpreting the legislative history of the 1994 amendment to 11 U.S.C. § 522(f) to mean “that the statute was originally intended to provide a debtor the opportunity to avoid a judicial lien in a residence without regard to the debtor’s monetary interest in that residence”); In re Male, 362 B.R. 238, 242 (Bankr.E.D.N.C.2007) (finding that debtors can avoid a judicial hen even though no equity exists in their residence at the time of filing bankruptcy). iii. Applying established values as they existed on the Petition Date to the formula set forth in 11 U.S.C. § 522(f)(2)(A), the court computes impairment of the Debtors’ exemptions as follows: Chase Lien $ 153,873.30 BB&T Lien 6,798.08 Judicial Lien 248,296.55 Homestead Exemptions + 60.000.00 $ 468,967.93 Value of Property a56.000.00J Impairment $312.967.93 The total" }, { "docid": "1574768", "title": "", "text": "54, 58 (Bankr.S.D.Cal.1993), vacated in part on other grounds, 167 B.R. 186 (9th Cir. BAP 1994). The formula set forth in 11 U.S.C. § 522(f)(2)(A) does not provide an operative date for valuing liens, but the court is persuaded by the United States Bankruptcy Court for the Southern District of California’s holding that [t]he petition date is the operative date to make all § 522(f) determinations. This approach is consistent with Dewsnup because-it allows a lien creditor to enjoy the increase in value if the lien is not avoided. However, it also preserves the parties’ rights as they existed on the petition date to the extent the lien is avoidable under § 522(f). Further, the petition date is the most logical date. The Court must value the residence and the Debtor’s entitlement to an exemption on the petition date. As the amount of the liens is relevant to these determinations, it makes sense to value the liens on the same date. In re Salanoa, 263 B.R. 120, 123 (Bankr. S.D.Cal.2001) (emphasis added). Even if this court were to conclude that conversion from Chapter 13 to Chapter 7 nullified valuations made in connection with an order entered under 11 U.S.C. § 522(f), subsequent valuations made upon a new motion filed in the Chapter 7 proceeding would necessarily be the same, because the date for valuations remains unchanged. This reasoning is the basic rationale of a res judicata defense. f. The court also notes that 11 U.S.C. § 348(f)(1)(B) speaks to valuations made “m the chapter 13 case” (emphasis added) and does not use the more expansive language of during the chapter 13 case. Section 522 applies to all chapters of the Code, and a motion to avoid a judicial lien under 11 U.S.C. § 522(f) can be brought by any individual debtor. Valuations made in connection with such a motion do not relate in any way to the particular chapter of the Code under which that debtor is proceeding, and the court questions whether, once an order is entered either granting or denying the motion based upon the presented valuations, cause" }, { "docid": "18722486", "title": "", "text": "10436 holding title to debtor’s residence. Shortly thereafter, on October 21, 1985, debtor filed his Chapter 7 petition. Debt- or’s schedules disclose the market value of debtor’s beneficial interest to be $40,000.00 subject to a purchase money mortgage in the amount of $13,350.00, leaving the debt- or with an equity of $26,650.00. Debtor has claimed and is entitled to a $7,500.00 homestead exemption under Ill.Rev.Stat. ch. 110, § 12-901 (1985). The debtor has proposed to purchase from the trustee the non-exempt portion of his equity and therefore seeks to avoid the subject judicial lien both as a preferential transfer and one which impairs debtor’s exemptions. In objecting to debtor’s motion, the lien creditors deny that their judicial lien attached on September 27, 1985. Rather, the lien creditors contend that their judicial lien was created on June 12, 1985, the date on which the land trustee was served with a citation to discover assets. Therefore, the lien creditors seek to have their lien upheld and declared fully enforceable. DISCUSSION Section 522(f)(1) of the Bankruptcy Code allows a debtor to avoid the fixing of a judicial lien on an interest in his property to the extent such lien impairs an exemption to which the debtor would otherwise be entitled. The purpose of section 522(f)(1) is to protect the debtor’s exemptions by permitting him to avoid a judicial lien to the extent the property could have been exempted in the absence of the judi cial lien. In re Zuaro, 29 B.R. 37, 38 (Bankr. E.D.N.Y. 1983). It follows that a judicial lien cannot be avoided to the extent it reaches non-exempt property of the estate. In re Breaux, 55 B.R. 613, 614 (Bankr.M.D.Ala.1985). In the case at bar, the debtor has approximately $27,000.00 in equity to which the judicial lien has fully attached. However, since the judicial lien is impairing debtor’s allowable homestead exemption, the court concludes that the lien is avoidable to the extent of $7,500.00. The court further concludes that the judicial lien remains enforceable to the extent it does not impair debtor’s exemption rights. The same result is reached under" }, { "docid": "18553648", "title": "", "text": "be avoided pursuant to § 522(f). Carney Brothers objected to the Dun-cans’ motion, contending that the lien of Carney Brothers is subordinate only to that of the first deed of trust holder and that to allow avoidance of the Carney Brothers’ lien would be inconsistent with the distribution provisions contained in § 724(b). Carney Brothers further argue that the impairment of the Duncans’ homestead exemption is due not to the Carney Brothers’ lien, but to the tax liens which are junior to the Carney Brothers’ lien. GEORGE Marion George, d/b/a Marion George Janitorial, filed a Chapter 7 petition and the schedules and statement of affairs on December 15, 1983. A $27,000.00 homestead exemption was claimed under Alaska law. On the date the petition was filed, George owned a residence with a fair market value of $67,000.00. The property is encumbered with the following liens: Creditor Type of Lien Approximate Amount Date Recorded Alaska Teamsters Federal Credit Union Deed of Trust $17,053.07 June 16, 1977 i — l Internal Revenue Service Tax Lien 10,761.71 March 5, 1981 CNÍ Edwin and Judy McEdwards Judicial 24,248.19 March 19, 1982 CO Internal Revenue Service Tax Lien 11,911.28 May 17, 1982 Total $63,974.25 George filed a motion to avoid the McEd-wards’ judicial lien as the liens which are not avoidable total $39,726.06 and the property is valued at $67,000.00. When the liens which are not avoidable and the $27,-000.00 homestead exemption are added together and subtracted from the fair market value, the remaining value of the residence is $273.94. George contends that all of the McEdwards’ lien except the $273.94 must be avoided. George asserts that if the lien is not avoided and is instead allowed to remain on the property, she will be prevented from receiving her full homestead exemption. LAW Section 522(f) provides in pertinent part: Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such" }, { "docid": "18724289", "title": "", "text": "bankruptcy petition. The debtors’ complaint to avoid the defendant’s lien was filed on February 14, 1983. The value of the debtors’ homestead property is $8,700.00. (See Ex. 1.) The amount of defendant’s judicial lien against the property as of the date of the debtors’ chapter 7 petition was $3,646.00. A first deed of trust in the amount of $917.00, recorded subsequent to the perfection of defendant’s judicial lien, also encumbers the debtors’ homestead. General Finance Co. of Johnson City, Inc., the beneficiary of the first deed of trust, has assigned its interest to James E. Handy. The debtors maintain that a ranking of the priorities among the competing claims should begin with the consensual first deed of trust, $917.00, and the $7,500.00 exemp tion they assert, pursuant to Tenn.Code Ann. § 26-2-301 (1980), should respectively be subtracted from the $8,700.00 fair market value of their homestead. Hence, they contend the amount of defendant’s lien not impairing their homestead exemption is merely $283.00. Defendant, in contradistinction, argues that the consensual deed of trust lien should not have priority vis-a-vis her previously recorded judicial lien. In fact, defendant asserts that the $917.00 consensual lien should be deducted from the debtors’ $7,500.00 homestead exemption and that, consequently, the unavoidable amount of her judicial lien is $2,117.00. II Bankruptcy Code § 522(f) recites in material part: Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (1) a judicial lien; 11 U.S.C.A. § 522(f) (1979). In accordance with 11 U.S.C.A. § 522(b) (1979), the homestead exemption to which the debtors are entitled is codified in Tenn. Code Ann. § 26-2-301 (1980), which enacts in apposite part: Basic exemption, (a) An individual, regardless of whether he is head of a family, shall be entitled to a homestead exemption upon real property which is owned by the individual and used by him, his spouse, or a dependent," }, { "docid": "1574767", "title": "", "text": "made pursuant to 11 U.S.C. § 506(a) upon conversion of a case to Chapter 7, section 348(f)(1)(B) specifically complies with the United States Supreme Court’s holding that a Chapter 7 debtor cannot utilize 11 U.S.C. § 506(d) to strip down a creditor’s lien on real property to the value of the property securing the lien. Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992). e.A finding that 11 U.S.C. § 348(f) does not prevent orders made under 11 U.S.C. § 522(f) during a Chapter 13 proceeding from remaining effective upon conversion of the case to Chapter 7 is further supported by the Code’s mandate that for purposes of 11 U.S.C. § 522, “ ‘value’ means fair market value as of the date of the petition ...” 11 U.S.C. § 522(a)(2) (emphasis added). This provision applies explicitly to property valuations, but it is implicit that the “nature and extent of a debtor’s exemption rights [in valued property] are also determined as of the date of the petition.” In re Mayer, 156 B.R. 54, 58 (Bankr.S.D.Cal.1993), vacated in part on other grounds, 167 B.R. 186 (9th Cir. BAP 1994). The formula set forth in 11 U.S.C. § 522(f)(2)(A) does not provide an operative date for valuing liens, but the court is persuaded by the United States Bankruptcy Court for the Southern District of California’s holding that [t]he petition date is the operative date to make all § 522(f) determinations. This approach is consistent with Dewsnup because-it allows a lien creditor to enjoy the increase in value if the lien is not avoided. However, it also preserves the parties’ rights as they existed on the petition date to the extent the lien is avoidable under § 522(f). Further, the petition date is the most logical date. The Court must value the residence and the Debtor’s entitlement to an exemption on the petition date. As the amount of the liens is relevant to these determinations, it makes sense to value the liens on the same date. In re Salanoa, 263 B.R. 120, 123 (Bankr. S.D.Cal.2001) (emphasis added). Even if this" }, { "docid": "22928687", "title": "", "text": "under section 522(f) we apply a practical approach to determining the impact that a judicial lien may have on the debtor’s ability to use a given piece of exempt property to achieve his or her fresh start. Where the creditor’s lien has no present economic value, i.e. the exemption plus the encumbrances with priority ahead of the judicial lien at issue equal or exceed the value of the property, the lien essentially is just a cloud upon the debtor’s title and right to future enjoyment of the property and the lien impairs the exemption. Requiring an execution sale before a debtor in bankruptcy would be able to use the applicable homestead exemption to protect his or her property from the claims of creditors is inconsistent with the practical approach of Galvan. Virtually all state exemptions protect judgment debtors from execution sales or other attempts to enforce judgments against certain property of the debtor. To require such a sale before a debtor could use state law exemption in bankruptcy would eviscerate the purpose and function of exemptions and would cause absurd results. Moreover, such a result is inconsistent with the principle, discussed above, that the existence of exemptions in bankruptcy presupposes a hypothetical attempt by the trustee to levy upon and sell all of the debtor’s property upon the filing of the petition. In arguing that there can be no impairment of the exemption because California law would not allow him to enforce his liens against the residence until there would be sufficient equity to allow the debtor to enjoy her entire exemption, Harris essentially would seek to preserve his liens as charges against the debtor’s interest in the residence. These liens had no present economic value as of the date of the petition because the debtor had no equity above the senior consensual liens and the debtor’s homestead exemption. Allowing the liens to remain as a charge against the property until there was sufficient equity buildup or appreciation in value, or until some other event occurred which would allow their enforcement would impair the debtor’s ability to use her rights" }, { "docid": "18553649", "title": "", "text": "1981 CNÍ Edwin and Judy McEdwards Judicial 24,248.19 March 19, 1982 CO Internal Revenue Service Tax Lien 11,911.28 May 17, 1982 Total $63,974.25 George filed a motion to avoid the McEd-wards’ judicial lien as the liens which are not avoidable total $39,726.06 and the property is valued at $67,000.00. When the liens which are not avoidable and the $27,-000.00 homestead exemption are added together and subtracted from the fair market value, the remaining value of the residence is $273.94. George contends that all of the McEdwards’ lien except the $273.94 must be avoided. George asserts that if the lien is not avoided and is instead allowed to remain on the property, she will be prevented from receiving her full homestead exemption. LAW Section 522(f) provides in pertinent part: Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (1) a judicial lien.... Avoidance of a judicial lien under § 522(f) is a two-step procedure. First, it must be determined if the debtors have an exemption, here a homestead exemption, which is impaired. Second, it must be determined the extent to which the judicial lien creates that impairment. The analysis begins with the value of the property claimed as exempt as of the filing date of the petition. In re Tarrant, 19 B.R. 360, 9 B.C.D. 413, CCH Bkr.L.Rptr. ¶ 68747 (Bkrtcy.Alaska 1982). An easier situation to analyze than that of the instant cases is that presented in In re Boteler, 5 B.R. 408, 6 B.C.D. 798 (Bkrtcy.S.D.Ala.1980), in which the property the debtor claimed as being exempt was encumbered by a mortgage, a judicial lien and a second mortgage in that order of priority. Because the two mortgages had a total balance in excess of the fair market value of the property, the court held the debtor had no exemptible interest, and the judicial lien could not be avoided as there" }, { "docid": "1207594", "title": "", "text": "liens on the property; and (iii) the amount of the exemption that the debtor could claim if there were no liens on the property; exceeds the value that the debtor’s interest in the property would have in the absence of any liens. The respondent argues that “the Debtors have not established the value of the real property, and therefore the Court cannot conclude that the Respondent’s lien impairs their homestead exemption.” (Res. Br. at 4.) The court finds otherwise. “Courts have generally held that an owner is competent to give his opinion on the value of his property____” Russell, Bankruptcy Evidence Manual, § 701.2 (2006 ed.) (citations omitted). The debtors testified that, as of the petition date, the home had a value of $90,000, the price they had paid for it one year earlier. The $90,000 purchase price is further attested to in the debtors’ documentary evidence. (See Exh. 2 (warranty deed), 4 (mortgage application).) The respondent introduced no evidence of value of the home. The court concludes that the value of the home, as of the petition date, was $90,000. The outstanding mortgage balance as of the petition date was $80,446.08 and the debt ors have claimed a homestead exemption of $9,483.37. In accordance with § 522(f)(2), the respondent’s judgment lien impairs the debt- or’s exemption to the extent that it exceeds, as of the petition date, the value of the home, reduced by the mortgage and the debtors’ claimed exemption, i.e., to the extent it exceeds $70.55, calculated as follows: Value of the Home $90,000.00 -Mortgage Balance - $80,446.08 -Exemption - $ 9,483.37 Maximum Judgment Lien Remaining $ 70.55 Y. CONCLUSION In accordance with the forgoing discussion, the court concludes that the respondent’s judgment lien be avoided to the extent that it exceeds $70.55, and that judgment shall so enter. It is SO ORDERED. . From the evidence presented it is unclear how the respondent became the assignee of the deficiency judgment. Since the parties have raised no issue in this regard, the court will simply refer to the respondent. . Section 522(f)(1)(A) provides: (f)(1) Notwithstanding any waiver" }, { "docid": "18524266", "title": "", "text": "$183,450.87 (180,958.24 + 2,492.63). Creative Finance held a trust indenture with a pay-off of $11,294.80 on October 16, 1995, with interest accumulating at about $3.54 per day. (Exhibits 6, 7 and 11). This would have left the petition date pay-off at $11,468.26 (11,294.80 + 173.16). The total of these two mortgage interests equals $194,-919.13 as of the petition date. Debtors’ equity interest in the property absent the judgment Ken equals the fair market value of the property on the date of the petition ($270,-000) less mortgages ($194,919.13), or $75,-080.87. Using the new formula of § 522(f), the sum of the judgment Ken ($50,000), another Ken ($1,676.31) (Exhibit 11), and the amount of the Debtors’ aUowable homestead exemption ($40,000), totals $91,676.31, and therefore exceeds the value of the Debtors’ interest in the property by $16,595.44 ($91,-676.31 less $75,080.87), or what the Debtors would have in the absence of the judgment lien by $33,404.56. Therefore, Pioneer’s judgment lien is avoidable under § 522(f) to the extent of $16,595.44 and is not avoidable to the extent of $33,404.56. The secured claim of Pioneer is thus fixed at $33,404.56. IT IS ORDERED the motion of Debtors Ronald Lewis Todd and Shirley Ann Todd to avoid judgment lien of Pioneer Liquidating Corporation dated January 29,1996, is granted in part and denied in part; Pioneer’s hen is avoided to the extent of $16,595.44; and Pioneer’s judgment hen is allowed as a secured claim in the sum of $33,404.56, with the balance as a general, unsecured claim. . 11 U.S.C. § 522(f) provides in pertinent part: (f)(1) Notwithstanding any waiver of exemptions but subject to paragraph (3), the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is— (A)a judicial lien, other than a judicial lien that secures a debt— ****** (2)(A) For the purposes of this subsection, a lien shall be considered to impair an exemption to the extent that the sum of—" }, { "docid": "22928684", "title": "", "text": "a homestead exemption. Al though this reasoning is arguably inconsistent with In re Knudsen, 80 B.R. 193 (Bankr.C.D.Cal.1987), we find Knudsen internally inconsistent in the sense that it recognizes that exemptions are determined as of the date of the petition and that post-petition changes are not relevant, yet it goes on to deny the debtor’s claim of exemption on the basis of the post-petition sale of the homestead. See 80 B.R. at 196. As of the date of the petition, a judgment creditor could not have forced the execution sale of the residence unless the proceeds were sufficient to pay the debtor her $75,000 homestead exemption. The debtor’s interest in the residence is therefore exempt to that extent. Because the $75,000 statutory exemption exceeds the $60,000 equity in the property, the “available exemption” for purposes of section 522(f) analysis is $60,000. Turning to whether and to what extent Harris’ liens impair the available exemption, Harris makes two related arguments. The first is that the protection afforded the debtor by the automatic homestead exemption arises only upon a sale of the property to enforce a money judgment. Since there is and can be no execution sale, Harris argues that his liens cannot impair an available exemption. The second argument is that the judicial liens cannot impair the debtor’s exemption under state law because under section 704.800 he cannot enforce his judicial liens against the property until there is sufficient value in the property to allow the debtor to enjoy her entire exemption. We are not persuaded by either argument. In Galvan, supra, we determined that section 522(f) may be used by a debtor to avoid an undersecured judicial lien. We reasoned that although the unsecured portion could not, at that time, be enforced against the exempt property so as to provide immediate economic benefit, allowing the unsecured portion of a judicial lien to remain as a charge against the property in which the debtor has exemption rights impaired the debtor’s exemption rights and the debtor’s right to a fresh start in various ways. 110 B.R. at 451. First, if the debtor’s" }, { "docid": "22928688", "title": "", "text": "exemptions and would cause absurd results. Moreover, such a result is inconsistent with the principle, discussed above, that the existence of exemptions in bankruptcy presupposes a hypothetical attempt by the trustee to levy upon and sell all of the debtor’s property upon the filing of the petition. In arguing that there can be no impairment of the exemption because California law would not allow him to enforce his liens against the residence until there would be sufficient equity to allow the debtor to enjoy her entire exemption, Harris essentially would seek to preserve his liens as charges against the debtor’s interest in the residence. These liens had no present economic value as of the date of the petition because the debtor had no equity above the senior consensual liens and the debtor’s homestead exemption. Allowing the liens to remain as a charge against the property until there was sufficient equity buildup or appreciation in value, or until some other event occurred which would allow their enforcement would impair the debtor’s ability to use her rights under the homestead exemption to facilitate her fresh start. The judicial liens should therefore be avoided in their entirety- CONCLUSION In this case, the relevant date for determining the nature and extent of the debt- or’s homestead exemption is the petition date. As of the petition date and absent Harris’ liens, the debtor would have been entitled to an automatic homestead exemption of her interest in the residence in the amount of $75,000. The existence of Harris’ liens upon the debtor’s exempt property impaired the debtor’s exemption rights. We therefore AFFIRM the bankruptcy court’s order avoiding the Harris judgment liens under section 522(f)(1). . California law also provides a declared homestead exemption as set forth in CCP § 704.910 et seq. The debtor also argues that she should prevail on appeal by virtue of a post-petition declaration of homestead. We decline to consider this argument because it was not raised in the court below and because there is no evidence properly in the record concerning a declared homestead. . Section 704.720(a) provides that \"a homestead" }, { "docid": "23253910", "title": "", "text": "of the debtor’s real estate. See In re Kruger, 77 B.R. 785, 787 (C.D.Cal.1987). To implement Congressional will to provide a fresh start, it is essential that the avoidance powers provided in Section 522(f) not be unduly restricted. We view cases such as In re West, supra, 68 B.R. at 647, that give Section 522(f) limited application, as not properly construing the concept of impairment in light of the purpose of Section 522(f). Whether a particular lien “impairs” an exemption is to be determined solely under federal bankruptcy law. In re Kruger, supra, 77 B.R. at 786. Allowing the unsecured portion of a judicial lien to remain as a charge against property, in which the debtor has exemption rights, is a significant impairment of the debtor’s right to a fresh start. As the Panel noted in In re Charles, 25 B.R. 331 (9th Cir. BAP 1982): A prospective buyer, upon discovering the existence of such liens and realizing that the judgment debtor cannot transfer his homestead rights, will pay the debtor a lesser sum for his homesteaded property, in proportion to the amount of the attached liens. In this way, the mere attachment of the lien may effectively preclude the judgment debtor from obtaining the full potential value of his homestead. 25 B.R. at 333. This caution is echoed by other courts and commentators, who are concerned that unsecured liens allowed to remain on the debtor’s property will impair a debtor’s fresh start by partaking in post-petition property acquisitions and equity build up. See In re Rappaport, 19 B.R. 971, 973 (E.D.Pa.1982); Bowmar, Avoidance of Judicial Liens that Impair Exemptions in Bankruptcy, 63 Am.Bankr. L.J. 375, 389 (1989). We therefore hold that the unsecured portion of a judicial lien is properly avoided under Section 522(f) as it “impairs” the debtor’s right to fully realize any homestead exemption and post-petition property appreciation. Our holding is in accord with such cases as In re Rehbein, 49 B.R. 250 (D.Mass.1985), which states that: Where the value of the unavoidable liens and the total amount of the Debtor’s claimed exemptions exceeds the value of" }, { "docid": "15916817", "title": "", "text": "that the fair market value of her home as of the petition date was $260,000. WAMCO does not dispute this amount, but claims that the value has likely increased since the petition was filed, and that the Court should value the West Orange property as of the confirmation date. The Court can find no support in the case law for WAM-CO’s position. Furthermore, it is in direct contradiction to § 522(a)(2) which provides, inter alia, that value means “... fair market value as of the date of filing of the petition.... ” Accordingly, for purposes of making the calculation under § 522(f)(2)(A) the Court will use the value of $260,000. The liens which must be considered are the first mortgage held by National City Mortgage in the amount of $200,103.65; a lien in favor of the IRS in the amount of $32,624.53; and the amended WAMCO claim in the amount of $225,221.51. The Debtor claimed an exemption in the homestead in the amount of $16,150.00 on Schedule C of her petition. The Calculation under the statutory formula is as follows: 225,221.51 WAMCO Lien 200,103.65 1st Mortgage 32,624.53 IRS Lien 16,150.00 Claimed Exemption 474,099.69 Total Encumbrances -260,000.00 Debtor’s Interest in Property 214,099.69 Extent of Impairment The above calculation demonstrates that the Debtor’s exemption is impaired by the WAMCO lien to the extent of $214,099.69. Therefore, the lien does not impair the exemption to the extent that the amount of the lien ($225,221.51) exceeds the extent of the impairment ($214,099.69), i.e., $11,121.82. Miller, 299 F.3d at 186. Accordingly, pursuant to § 522(f), the Court finds that the Debtor can partially avoid WAMCO’s lien. The remaining portion of WAMCO’s lien, the $11,121.82, cannot be avoided and must be appropriately addressed within the Debtor’s Chapter 13 Plan. Because she contended that WAMCO’s lien could be voided in it entirety, the Debtor requested modification of the March 25, 2001 consent order which gave adequate protection to WAMCO. The Court believes that consideration of this request should only be made after the Debtor has amended her Chapter 13 Plan to reflect the partial avoidance of the" } ]

[ { "docid": "9847449", "title": "", "text": "Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (holding that, in most cases, an error must be prejudicial to satisfy the stringent plain error standard). The Guidelines require a district court to run sentences from multiple counts consecutively, rather than concurrently, if the Guideline sentence exceeds the statutory maximum sentence for each count. U.S.S.G. § 5G1.2(d). In this instance, Sturgis’s 262-month sentence exceeded the statutory maxima for both the crack and marijuana distribution counts. Applying § 5G1.2(d), the district court could have capped Sturgis’s 262-month sentence on the crack count at the maximum 240 months, and run 22 of the 60 months on the marijuana count consecutively, thereby achieving the 262-month sentence imposed by the Guidelines. See, e.g., United States v. Henderson, 105 F.Supp.2d 523, 536-37 (S.D.W.V.2000) (running a portion of one count consecutive to other counts, under § 5G1.2(d), to reach the Guideline sentence while avoiding an Apprendi error). So constituted, Sturgis’s sentence wouldn’t violate Apprendi because neither count’s sentence would exceed the statutory maximum sentence for the respective drug types. Because Sturgis’s sentence could be reformed to avoid an Apprendi error, we perceive no plain error in his sentence. See, e.g., United States v. Page, 232 F.3d 536, 544-45 (6th Cir.2000) (finding an absence of prejudice, on plain error review, when § 5G1.2(d) would render defendants’ sentences identical after remand to correct an Apprendi error), petition for cert. filed, No. 00-7751 (Jan. 3, 2001); United States v. Williams, No. 00-4290, 2000 WL 1699841, at *1 (4th Cir. Nov.14, 2000) (same). Ill We affirm the judgment and sentence of the district court in all respects. . The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas. . We may recognize the existence of probable cause on appeal, though the district court did not analyze the situation in similar fashion. United. States v. Abadia, 949 F.2d 956, 958 n. 12 (8th Cir.1991). . Sturgis’s citation to United States v. Bloomfield, 40 F.3d 910, 917 (8th Cir.1994) (en banc), is inapposite because officers in that case possessed only reasonable suspicion, not probable" } ]

[ { "docid": "4849231", "title": "", "text": "offenses of conviction, or that his sub stantial rights are affected. Kentz was convicted on twenty-one counts of fraud, each bearing a five year maximum sentence. This amounts to 105 years. The government points out that if the total sentence to be imposed under the guidelines is greater than the statutory maximum on any single count of conviction, USSG § 5G1.2(d) requires the sentence to be imposed on one or more counts to run consecutively to the extent necessary to achieve the total punishment. Kentz does not argue otherwise. Rather, he suggests that Apprendi precludes saving the sentence by “stacking” because the Court rejected the argument that the same amount of time could have been constitutionally imposed by way of concurrent sentences. 530 U.S. at 474, 120 S.Ct. 2348. The difference, however, is that we are reviewing for plain error. Because his sentence would have to be structured to come out the same way regardless, we cannot say that Kentz was in any way prejudiced or that the fairness of the proceedings was affected even if there were error. See e.g., United States v. Page, 232 F.3d 536, 542-45 (6th Cir.2000) (so holding), cert. denied sub nom. Linton v. United States, — U.S. -, 121 S.Ct. 1389, 149 L.Ed.2d 312 (2001); United States v. White, 238 F.3d 537, 541-43 (4th Cir.2001), petition for cert, filed, May 01, 2001 (No. 00-9732); United States v. Sturgis, 238 F.3d 956, 960-61 (8th Cir.2001); United States v. Parolin, 239 F.3d 922, 929-30 (7th Cir.2001) (affirming district court’s use of § 5G1.2), petition for cert. filed, May 11, 2001 (No. 00-9999); United States v. White, 240 F.3d 127, 135 (2d Cir.2001) (same). Moreover, as we shall explain in section IV, the district court did not plainly err in considering the statutory maximum to be fifteen years because that is the maximum penalty provided by 18 U.S.C. § 2326 for telemarketing which impacts more than ten victims over the age of 55. Finally, the charge on the counts on which Kentz was convicted that are subject to the § 3147 enhancement included the fact that the" }, { "docid": "22144391", "title": "", "text": "for such a departure on the basis of substantial assistance); United States v. Patterson, 38 F.3d 139, 146 n. 8 (4th Cir.1994) (observing that “[t]he district court could have sentenced below the statutory minimum only if this departure was based on the Government’s motion for downward departure due to Defendant’s substantial assistance”); cf. 18 U.S.C.A. § 3553(f) (West 2000) (limiting applicability of statutory minimum penalties for certain drug offenses when specified criteria are met); U.S. Sentencing Guidelines Manual § 5C1.2 (1998) (same). Similarly, in the event the guideline sentence for a single count of conviction exceeds the applicable statutory maximum, the statutory maximum becomes the guideline sentence. See U.S.S.G. § 5Gl.l(a). In the case of multiple counts of conviction, the guidelines instruct that if the total punishment mandated by the guidelines exceeds the highest statutory maximum, the district court must impose consecutive terms of imprisonment to the extent necessary to achieve the total punishment. See U.S.S.G. § 5G1.2(d). For example, suppose a defendant is convicted of three offenses, each with a statutory maximum term of five years (60 months) imprisonment. If the district court determines that the appropriate sentence under the guidelines is 156 months, § 5G1.2(d) requires the imposition of consecutive terms on each count of conviction until the guideline punishment is achieved. Applying these principles here, it is evident that White’s substantial rights were not affected by the imposition of a 360-month term of imprisonment on each count of conviction. Even if White is correct that the maximum penalty for each of his offenses was 240 months, the district court would still have been obligated to calculate a guideline sentence by making a finding regarding the quantity of narcotics attributable to White. And, in light of its determination that White’s total punishment under the guidelines should be 360 months imprisonment, the district court would have been obligated to reach that total sentence by imposing a term of imprisonment of 240 months or less on each count of conviction and ordering those terms to be served consecutively to achieve the total punishment mandated by the guidelines. See id.; Page," }, { "docid": "22355283", "title": "", "text": "trafficking conviction [per count] was 20 years, § 5G1.2(d) would have obligated [the court ] to achieve the guideline sentence of [324] months imprisonment by imposing a term of 240 months or less on each count of conviction and ordering those terms to be served consecutively to achieve the total punishment mandated by the Guidelines. Id. at 518. This process is known as “stacking,” and we have previously acknowledged its validity in Kentz, 251 F.3d at 842, where we held that any error in a 160 month sentence was harmless for a defendant convicted of twenty-one counts, each with a five-year maximum, because § 5G1.2(d) would require consecutive sentences to achieve the total punishment calculated by the Guidelines. In Kentz, we relied on United States v. White, 238 F.3d 537 (4th Cir.), cert. denied, 532 U.S. 1074, 121 S.Ct. 2235, 150 L.Ed.2d 225 (2001). White makes it clear that the keys to understanding this process are two. First, in calculating sentences in drug cases, two separate findings of drug quantity must be made, one under the relevant statute, and then another under the Guidelines. Apprendi dictates that drug quantity under the statute must be found by the jury (in a jury case), but Apprendi does not alter the authority of the judge to sentence within the statutory range provided by Congress. See United States v. Lewis, 235 F.3d 215, 218-19 (4th Cir.2000), cert. denied, — U.S. -, 122 S.Ct. 39, 151 L.Ed.2d 12 (2001) (holding the constitutional rule announced in Ap-prendi does not prohibit a district court from finding, by a preponderance of the evidence, facts relevant to the application of the Guide lines). To determine where to fix the actual sentence to be imposed, the judge calculates quantity under the Guidelines which in turn yields an offense level and a number of months for the sentence. If the sentence determined by the Guidelines exceeds the statutory maximum on a given count, the sentence on that count, of course, is limited by that ceiling. On the other hand, if the Guidelines calculation exceeds the statutory maximum for any count in" }, { "docid": "22355285", "title": "", "text": "a case involving multiple counts, then the mandatory provisions of § 5G1.2(d) come into play regarding the question of consecutive sentences. This is the second key to understanding stacking: § 5G1.2(d) is concerned solely with the question of sentencing on multiple counts, including consecutive sentences. In fact, § 3D1.5, which covers grouping in multiple count cases, refers the sentencing judge to Chapter Five once the combined offense level has been determined. When this approach is followed, not one of the stacked consecutive sentences exceeds the statutory maximum for that count. Thus, Apprendi is not implicated. White, which is a controlled substance case involving one conspiracy count and one possession with the intent to distribute and distribution count, explains stacking and § 5G1.2(d) as follows: In the case of multiple counts of conviction, the guidelines instruct that if the total punishment mandated by the guidelines exceeds the highest statutory maximum, the district court must impose consecutive terms of imprisonment to the extent necessary to achieve the total punishment. See U.S.S.G. § 5G1.2(d). For example, suppose a defendant is convicted of three offenses, each with a statutory maximum term of five years (60 months) imprisonment. If the district court determines that the appropriate sentence under the guidelines is 156 months, § 5G1.2(d) requires the imposition of consecutive terms on each count of conviction until the guide lines punishment is achieved. Applying these principles here, it is evident that White’s substantial rights were not affected by the imposition of a 360-month term of imprisonment on each count of conviction. Even if White is correct that the maximum penalty for each of his offenses was 240 months, the district court would still have been obligated to calculate a guideline sentence by making a finding regarding the quantity of narcotics attributable to White. And, in light of its determination that White’s total punishment under the guide lines should be 360 months imprisonment, the district court would have been obligated to reach that total sentence by imposing a term of imprisonment of 240 months or less on each count of conviction and ordering those terms to" }, { "docid": "22841796", "title": "", "text": "v. White, 238 F.3d 537 (4th Cir.2001), we conclude that Simms cannot make this showing. In White, we noted that, “[i]n the case of multiple counts of conviction, the guidelines instruct that if the total punishment mandated by the guidelines exceeds the highest statutory maximum, the district court must impose consecutive terms of imprisonment to the extent necessary to achieve the total punishment.” See id. at 543 (citing U.S.S.G. § 5G1.2(d)). Simms was convicted of six counts of possession with intent to distribute marijuana. The district court determined that, under the guidelines, Simms should be held accountable for between 1,000 and 3,000 kilograms of marijuana. After grouping, the guideline range for these offenses was 292-365 months. Assuming that Simms is correct to assert that the statutory maximum for each count is 60 months, to reach the appropriate guideline sentence for that quantity of drugs, the district court would have been obligated to impose the sentences for each substantive drug conviction consecutively until reaching a total sentence of more than 240 months. See White, 238 F.3d at 542 (“[T]he district court would have been obligated to reach that total sentence by imposing a term of imprisonment of 240 months or less on each count of conviction and ordering those terms to be served consecutively to achieve the total punishment mandated by the guidelines.”). Accordingly, we decline to notice the Apprendi error with respect to Count 314. V. Based upon the foregoing analyses, we vacate Stewart’s convictions, sentences, and assessments, we affirm Livingston’s convictions and ultimate sentence but remand with instructions for the district court to vacate the convictions, sentences, and assessments attributable to Counts 115-120, and we affirm Simms’s convictions and sentences. AFFIRMED IN PART, VACATED IN PART, AND REMANDED IN PART WITH INSTRUCTIONS . Forty-three persons were included in the indictment. Of those, only four pleaded not guilty and went to trial. The fourth co-defendant, Richard Willis Teagle, became seriously ill and was granted a mistrial for health reasons. . At the time of the indictment, the Government was unaware of Livingston's true identity and referred to him in the" }, { "docid": "23266448", "title": "", "text": "crack, in violation of 21 U.S.C. § 846, and on two counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i). See Angle, 254 F.3d at 516. The indictment did not allege, nor did the jury find, a specific drug quantity in connection with the conspiracy charge. See id. at 517. Phifer was exposed, on these three counts, to a total statutory maximum term of sixty years’ imprisonment. See id. at 518. Phi-fer received a sentence of 292 months’ imprisonment for conspiracy and two sentences of 240 months’ imprisonment for money laundering, all to run concurrently. See id. at 516. Thus, on the conspiracy count, Phifer was erroneously sentenced to fifty-two months more than the maximum prison term authorized under 21 U.S.C. § 841(b)(1)(C). See supra Part II.A. We concluded, however, that Phifer suffered no prejudice, because he was subject to the same prison term by way of consecutive, rather than concurrent, sentences on the multiple counts. See Angle, 254 F.3d at 518. That is, the district court ascertained at sentencing that Phifer was responsible for at least 29 kilograms of cocaine and 3 kilograms of crack. See id. at 516. Under the Guidelines, the resulting range was 292-365 months’ imprisonment. See id. at 516. Though the conspiracy count alone carried a statutory maximum of 240 months’ imprisonment, [i]n the case of multiple counts of conviction, the sentencing guidelines instruct that if the total punishment mandated by the guidelines exceeds the statutory maximum of the most serious offense of conviction, the district court must impose consecutive terms of imprisonment to the extent necessary to achieve the total punishment. Id. at 518 (citing U.S.S.G. § 5G1.2(d)). Consequently, we determined that Phifer was not prejudiced by the imposition of a 292-month sentence on the conspiracy count, because the district court nonetheless would have been obligated, under U.S.S.G. § 5G1.2(d), to achieve the guideline sentence of 292 months via consecutive sentences. See id. at 518. Similarly, the Guidelines range for both Jeffrey and Stokes, based on the district court’s determination at sentencing that they were responsible for more than 1.5 kilograms of" }, { "docid": "8013884", "title": "", "text": "is clear from Kotteakos, in which the Court noted that the prejudice “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. The manner in which the Kotteakos prejudice inquiry is to be performed in cases of Apprendi error on plain error review is illustrated in our en banc decisions in Promise and Angle. In Promise, we found that the defendant’s substantial rights were affected by the imposition, based on judge-found facts, of a sentence ten years longer than the maximum penalty authorized by the jury verdict. See Promise, 255 F.3d at 160. In Angle, decided the same day as Promise, we concluded that a similar Apprendi error— imposition of a sentence of 292 months’ imprisonment on one of the counts of conviction, for which the maximum penalty authorized by the jury verdict was 240 months’ imprisonment — did not affect the defendant’s substantial rights. See Angle, 254 F.3d at 516, 518-19. We reached this conclusion because, had the district court been aware at sentencing of the relevant Sixth Amendment limitation, the guidelines “would have obligated [the court] to achieve the guideline sentence of 292 months imprisonment by imposing a term of imprisonment of 240 months or less on each count of conviction and ordering those terms to be served consecutively to achieve the total punishment mandated by the guidelines.” Id. at 518 (citing U.S.S.G. § 5G1.2(d)). In sum, Promise and Angle indicate that the prejudice inquiry in the case of a Sixth Amendment violation under Ap-prendi and its progeny — including Booker — is whether the district court could have imposed the sentence it did without exceeding the relevant Sixth Amendment limitation. If the answer to this inquiry is “yes,” as was the case in Angle, then the defendant has failed to demonstrate an effect on substantial rights; if the answer is “no,” as in Promise, the defendant has made the required showing. This analysis demonstrates why incorporation of" }, { "docid": "22135453", "title": "", "text": "n. 7 (10th Cir.2001), petition for cert. filed, - U.S. -, 122 S.Ct. 186, — L.Ed.2d-(2001), and cert. denied, No. 00-10289, 2001 WL 606873 (U.S. June 29, 2001); United States v. Keeling, 235 F.3d 533, 539-40 (10th Cir.2000), cert. denied, No. 00-10161, 2001 WL 578795 (U.S. June 25, 2001). . See Swatzie, 228 F.3d at 1284. . See Promise, 255 F.3d 150, 2001 WL 732389, at *8-10 & n. 9. . The Government presents the alternative argument that Vazquez should not prevail under the plain error standard because the District Court could have justified its 292-month sentence by imposing consecutive terms. According to the Government, even if Vazquez had been sentenced to § 841(b)(l)(C)'s'20-year maximum term of imprisonment on the drug conspiracy conviction, the District Court would have been required to impose a consecutive rather than concurrent sentence on the obstruction of justice conviction. See 18 U.S.C. § 3584(a); U.S.S.G. § 5G1.2(d) (1998). Thus, the Government submits, because Vazquez would have been subject to the same 292-month term of imprisonment through the imposition of consecutive sentences on the conspiracy and obstruction of justice convictions, the Apprendi violation did not “affect[ ] the outcome of the district court proceedings.” Olano, 507 U.S. at 734, 113 S.Ct. 1770; see, e.g., Angle, 254 F.3d 514, 2001 WL 732124, at *3-4 (holding that substantial rights not violated because § 5G1.2(d) would have obligated court to achieve same sentence by imposing consecutive terms); Page, 232 F.3d at 544-45 (denying plain error relief to defendants convicted on multiple counts because § 5G1.2(d) required imposition of consecutive sentences to extent necessary to produce combined sentence within guideline sentencing range). We decline to address this contention because we have determined on other grounds that Vazquez has failed to establish that he is entitled to plain error relief. . Vazquez asserts that (1) the District Court’s pretrial disqualification of the attorneys he initially obtained, due to their alleged involvement in the charged obstruction of justice, violated his Sixth Amendment right to counsel of his choice; (2) his assigned pretrial counsel provided ineffective representation in failing to file a motion" }, { "docid": "22144392", "title": "", "text": "five years (60 months) imprisonment. If the district court determines that the appropriate sentence under the guidelines is 156 months, § 5G1.2(d) requires the imposition of consecutive terms on each count of conviction until the guideline punishment is achieved. Applying these principles here, it is evident that White’s substantial rights were not affected by the imposition of a 360-month term of imprisonment on each count of conviction. Even if White is correct that the maximum penalty for each of his offenses was 240 months, the district court would still have been obligated to calculate a guideline sentence by making a finding regarding the quantity of narcotics attributable to White. And, in light of its determination that White’s total punishment under the guidelines should be 360 months imprisonment, the district court would have been obligated to reach that total sentence by imposing a term of imprisonment of 240 months or less on each count of conviction and ordering those terms to be served consecutively to achieve the total punishment mandated by the guidelines. See id.; Page, 232 F.3d at 544-45. IV. For the reasons set forth above, we affirm White’s convictions and sentence. AFFIRMED. . We express no view regarding the merits of White’s claims that his trial counsel was constitutionally deficient. Because the record does not conclusively demonstrate that White's trial counsel was ineffective, these claims should be raised in a separate proceeding pursuant to 28 U.S.C.A. § 2255 (West Supp.2000). See United States v. King, 119 F.3d 290, 295 (4th Cir.1997). he maintains that Trooper Cunningham committed perjury by mischaracterizing Hudson’s testimony. This claim is addressed below in Part II.B. . Because Hudson's grand jury testimony took place after White's trial, it cannot be said that the Government's failure to disclose it constituted suppression of evidence that may have been material to White’s guilt or innocence. And, although the Brady duty extends to evidence that is material to sentencing, see Brady, 373 U.S. at 87, 83 S.Ct. 1194, White does not contend that Hudson's testimony was exculpatory as to his sentence. Rather, . The defense actually presented by White" }, { "docid": "22841795", "title": "", "text": "S.Ct. 2348, 147 L.Ed.2d 435 (2000). With respect to Count 314, Simms received a sentence of 240 months, which was imposed concurrently with his sentence of 832 months. Simms contends that because drug quantity was not charged as an element of the offense and found by the jury beyond a reasonable doubt, the maximum statutory term of imprisonment for Count 314 is 5 years, or 60 months. See 21 U.S.C.A. § 841(b)(1)(D). Having failed to raise Apprendi before the district court, we review this challenge for plain error. The failure to charge drug quantity and type constitutes an error under Apprendi; however, we conclude that the Apprendi error did not affect Simm’s substantial rights. To establish that the error affected his substantial rights, Simms must demonstrate that it was prejudicial, i.e., that it “actually affected the outcome of the proceedings.” Hastings, 134 F.3d at 240. Thus, Simms must demonstrate that the 240-month sentence that was imposed by the district court was longer than that to which he would otherwise be subject. Pursuant to United States v. White, 238 F.3d 537 (4th Cir.2001), we conclude that Simms cannot make this showing. In White, we noted that, “[i]n the case of multiple counts of conviction, the guidelines instruct that if the total punishment mandated by the guidelines exceeds the highest statutory maximum, the district court must impose consecutive terms of imprisonment to the extent necessary to achieve the total punishment.” See id. at 543 (citing U.S.S.G. § 5G1.2(d)). Simms was convicted of six counts of possession with intent to distribute marijuana. The district court determined that, under the guidelines, Simms should be held accountable for between 1,000 and 3,000 kilograms of marijuana. After grouping, the guideline range for these offenses was 292-365 months. Assuming that Simms is correct to assert that the statutory maximum for each count is 60 months, to reach the appropriate guideline sentence for that quantity of drugs, the district court would have been obligated to impose the sentences for each substantive drug conviction consecutively until reaching a total sentence of more than 240 months. See White, 238 F.3d" }, { "docid": "23093312", "title": "", "text": "to run consecutively so that defendant's total term of imprisonment remains unchanged.”); Diaz, 296 F.3d at 684 (\"Because § 5G1.2(d) mandates consecutive sentences in those cases in which the total punishment exceeds the statutory maximum for any one count and the district court’s calculation of total punishment is not affected by an Apprendi error, remand to allow the district court to consider whether to impose consecutive or concurrent sentences would be an idle act.”); Buckland, 289 F.3d at 572 (\"[EJven if [the defendant] had been indicted only under 21 U.S.C. § 841(b)(1)(C), the trial judge, using the Guidelines and § 5G1.2(d), would have been required to sentence him to 324 months made up of consecutive sentences, each of which would not have exceeded 20 years.”); Angle, 254 F.3d at 518 (\"Had the district court been aware when it sentenced [the defendant] that the maximum penalty for his drug trafficking conviction was 20 years, § 5G1.2(d) would have obligated it to ... order[ ] [the sentences] to be served consecutively.”); Price, 265 F.3d at 1109 (noting that because 5G1.2 is mandatory, the district court would be forced to impose the same sentence already imposed, so there was no prejudice by the Apprendi error); United States v. Smith, 240 F.3d 927, 930 (11th Cir.2001) (\"When the ultimate sentence does not exceed the aggregate statutory maximum for multiple convictions, no effect on substantial rights has occurred that must be remedied.”); Page, 232 F.3d at 545 (holding that there was no prejudice because if § 5G1.2(d) was properly applied then the defendants' \"sentences would have been the same as those which were imposed”). . Garvin argues that the requirements of § 851 are jurisdictional in nature and thus cannot be waived. Unrecognized by Garvin, however, is that over a month before we heard oral argument in this case we issued our opinion in United States v. Ceballos, 302 F.3d 679 (7th Cir.2002). In Ceballos, we held that § 851 is not jurisdictional and expressly overruled our prior cases to the contrary. Id. at 692. . There was dispute between the majority and dissent in" }, { "docid": "23266449", "title": "", "text": "responsible for at least 29 kilograms of cocaine and 3 kilograms of crack. See id. at 516. Under the Guidelines, the resulting range was 292-365 months’ imprisonment. See id. at 516. Though the conspiracy count alone carried a statutory maximum of 240 months’ imprisonment, [i]n the case of multiple counts of conviction, the sentencing guidelines instruct that if the total punishment mandated by the guidelines exceeds the statutory maximum of the most serious offense of conviction, the district court must impose consecutive terms of imprisonment to the extent necessary to achieve the total punishment. Id. at 518 (citing U.S.S.G. § 5G1.2(d)). Consequently, we determined that Phifer was not prejudiced by the imposition of a 292-month sentence on the conspiracy count, because the district court nonetheless would have been obligated, under U.S.S.G. § 5G1.2(d), to achieve the guideline sentence of 292 months via consecutive sentences. See id. at 518. Similarly, the Guidelines range for both Jeffrey and Stokes, based on the district court’s determination at sentencing that they were responsible for more than 1.5 kilograms of crack, was 292 to 365 months’ imprisonment. Jeffrey and Stokes were exposed to far greater statutory maximum terms — Jeffrey to a total of 180 years on nine counts, and Stokes to 160 years on eight counts. Even if the district court had not strayed beyond the statutory maximum term of twenty years’ imprisonment on each count, the court still would have been mandated, under the provisions of U.S.S.G. § 5G1.2(d), to impose consecutive sentences in order to attain prison terms within the prescribed Guidelines range. Therefore, we conclude that Jeffrey’s and Stokes’s substantial rights were not affected by the Apprendi error. III. Next, Jeffrey and Stokes contend that they were denied a fair trial because the Government withheld exculpatory evidence from them in contravention of the rule announced in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of" }, { "docid": "22102991", "title": "", "text": "involving an unspecified quantity of drugs. Because Angle’s sentence of 210 months is less than the maximum penalty authorized by the facts found by the jury (240 months, see 21 U.S.C.A. § 841(b)(1)(C)), there was no error. B. We next consider Phifer’s claim. Phifer was charged in the same indictment as Angle with conspiring to traffic in an unspecified quantity of drugs. Unlike Angle, however, Phifer was sentenced by the district court to a term of imprisonment greater than the 20-year maximum penalty authorized by the facts found by the jury. As we held in Promise, the district court thus committed plain error. We hold, however, that Phifer cannot demonstrate that the error affected his substantial rights. See Olano, 507 U.S. at 734, 113 S.Ct. 1770. In order to make such a showing, Phifer must demonstrate that the error was prejudicial, ie., that it “actually affected the outcome of the proceedings.” United States v. Hastings, 134 F.3d 235, 240 (4th Cir.1998). Thus, Phifer must establish that his 292-month sentence was longer than that to which he would otherwise be subject. Phifer does not posit any way in which the error here, unlike a similar error in Promise, affected his substantial rights, and we can see none. This is so because the grand jury indicted, and the petit jury convicted, Phifer of three crimes, exposing him to a total statutory maximum prison term of 60 years. In the case of multiple counts of conviction, the sentencing guidelines instruct that if the total punishment mandated by the guidelines exceeds the statutory maximum of the most serious offense of conviction, the district court must impose consecutive terms of imprisonment to the extent necessary to achieve the total punishment. See U.S.S.G. § 5G1.2(d). For example, suppose a defendant is convicted of three offenses, each with a statutory maximum term of five years (60 months) imprisonment. If the district court determines that the appropriate sentence under the guidelines is 156 months, § 5G1.2(d) requires the imposition of consecutive terms on each count of conviction until the guideline punishment is achieved. Applying these principles here, we" }, { "docid": "22102993", "title": "", "text": "conclude that Phifer’s substantial rights were not affected by the imposition of a 292-month term of imprisonment on the drug trafficking conviction. Had the district court been aware when it sentenced Phifer that the maximum penalty for his drug trafficking conviction was 20 years, § 5G1.2(d) would have obligated it to achieve the guideline sentence of 292 months imprisonment by imposing a term of imprisonment of 240 months or less on each count of conviction and ordering those terms to be served consecutively to achieve the total punishment mandated by the guidelines. See United States v. Sturgis, 238 F.3d 956, 960-61 (8th Cir.2001) (holding that appellant was not prejudiced by imposition of sentence greater than statutory maximum because he was convicted of multiple counts and U.S.S.G. § 5G1.2(d) would have obligated the district court to achieve the same sentence through imposition of consecutive sentences); United States v. White, 238 F.3d 537, 542-43 (4th Cir.2001) (same); United States v. Page, 232 F.3d 536, 544-45 (6th Cir.2000) (same), cert. denied, - U.S. -, 121 S.Ct. 1389, 149 L.Ed.2d 312 (2001); see also United States v. Smith, 240 F.3d 927, 930 (11th Cir.2001) (per cu-riam) (holding that imposition of sentences greater than statutory maximum on each of three counts did not affect appellants’ substantial rights because the sentences imposed did not “exceed the aggregate statutory maximum for the multiple convictions”); cf. United States v. White, 240 F.3d 127, 135 (2d Cir.2001) (rejecting Ap-prendi challenge to imposition of consecutive sentences under § 5G1.2(d) because “the district court did not exceed the maximum for any individual count” and because there is “no constitutionally cognizable right to concurrent, rather than consecutive, sentences”). Apprendi does not foreclose this result. Charles Apprendi “pleaded guilty to two counts (3 and 18) of second-degree possession of a firearm for an unlawful purpose and one count (22) of the third-degree offense of unlawful possession of an antipersonnel bomb.” Apprendi, 530 U.S. at 469-70, 120 S.Ct. 2348 (citations omitted). Although the maximum penalty for each second-degree offense was 10 years, the trial court imposed a sentence of 12 years on count 18" }, { "docid": "22355286", "title": "", "text": "defendant is convicted of three offenses, each with a statutory maximum term of five years (60 months) imprisonment. If the district court determines that the appropriate sentence under the guidelines is 156 months, § 5G1.2(d) requires the imposition of consecutive terms on each count of conviction until the guide lines punishment is achieved. Applying these principles here, it is evident that White’s substantial rights were not affected by the imposition of a 360-month term of imprisonment on each count of conviction. Even if White is correct that the maximum penalty for each of his offenses was 240 months, the district court would still have been obligated to calculate a guideline sentence by making a finding regarding the quantity of narcotics attributable to White. And, in light of its determination that White’s total punishment under the guide lines should be 360 months imprisonment, the district court would have been obligated to reach that total sentence by imposing a term of imprisonment of 240 months or less on each count of conviction and ordering those terms to be served consecutively to achieve the total punishment mandated by the guidelines. Id. at 543 (emphasis added). Our understanding of this inside-the-Guidelines approach is fortified by the Supreme Court’s holding in United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997). The Court held in that case that a sentencing judge, in determining whether to apply a sentencing enhancement, could consider conduct of which the defendant had been acquitted, so long as that conduct had been adequately proved by a preponderance of the evidence. Id. at 149, 117 S.Ct. 633. The Court’s reason for allowing an enhancement to be added to the defendant’s base level offense notwithstanding an acquittal was that a sentence enhancement does “not punish a defendant for crimes of which he was not convicted, but rather increases his sentence because of the manner in which he committed the crime of conviction.” Id. at 154, 117 S.Ct. 633. Similarly, the imposition of consecutive sentences, each for a term not in excess of the statutory maximum, punishes the defendant for" }, { "docid": "22102999", "title": "", "text": "an interpretation with which I do not agree — there would be no error under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in sentencing Angle to 210 months imprisonment. See United States v. Kinter, 235 F.3d 192, 201-02 (4th Cir.2000). I agree, however, that a remand is necessary for factual findings on-drug kind and quantity. James Phifer was charged for drug trafficking in the same manner and for the same offense as was Angle. In addition, Phifer was charged and convicted of two counts of money laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)®. The district court sentenced Phifer to 292 months imprisonment for the drug-trafficking count and to two concurrent 240-month terms of imprisonment for the money laundering counts. Even if the 292-month sentence was thought to be error under Apprendi because it exceeded the 240 month maximum for a conviction involving an unspecified amount of cocaine and cocaine base, that error should not be noticed under plain-error principles because it did not affect Phifer’s substantial rights. The Sentencing Guidelines require that the three sentences be imposed consecutively to achieve the 292-month sentence. See U.S.S.G. § 5G1.2(d); United States v. White, 238 F.3d 537, 542-43 (4th Cir.2001). Therefore, I would affirm the judgment in Phifer’s case. I agree that on the other issues in these appeals, the panel opinion disposed of them properly. Accordingly, I concur in the judgment. Judge Gregory has authorized me to indicate that he joins this opinion. LUTTIG, Circuit Judge, concurring in the judgment: I would affirm both Angle’s and Phifer’s convictions and Phifer’s sentence for the reasons set forth in my opinion in United States v. Promise, 255 F.3d 150 (4th Cir.2001) (en banc) (Luttig, J., concurring in the judgment). However, I do agree that Angle’s sentence should be remanded for more specific fact finding on the quantity of drugs attributable to him for sentencing purposes, and that the panel opinion properly disposed of the other issues presented in these appeals." }, { "docid": "23093311", "title": "", "text": "the mandatory provisions of § 5G1.2(d) come into play regarding the question of consecutive sentences.”); United States v. Angle, 254 F.3d 514, 518 (4th Cir.2001) (enbanc) (\"[T)he district court must impose consecutive terms of imprisonment to the extent necessary to achieve the total punishment.”) (emphasis added); United States v. Price, 265 F.3d 1097, 1109 (10th Cir.2001) (\"This court agrees with those circuits which have concluded that § 5G1.2(d) is a mandatory provision.”). But see United States v. Velasquez, 304 F.3d 237, 242-43 (3d Cir.2002) (stating that 18 U.S.C. § 3584 gives district courts discretion to impose consecutive or concurrent sentences); United States v. Vasquez-Zamora, 253 F.3d 211, 214 (5th Cir.2001) (holding that the district court had discretion under 5G 1.2(d) to impose a consecutive or concurrent sentence). . See, e.g., Outen, 286 F.3d at 640 (\"[W]here a defendant is convicted on multiple counts, any error in exceeding the statutory maximum on a single count is harmless if the application of U.S.S.G. § 5G1.2 would require the sentence on one or more of the remaining counts to run consecutively so that defendant's total term of imprisonment remains unchanged.”); Diaz, 296 F.3d at 684 (\"Because § 5G1.2(d) mandates consecutive sentences in those cases in which the total punishment exceeds the statutory maximum for any one count and the district court’s calculation of total punishment is not affected by an Apprendi error, remand to allow the district court to consider whether to impose consecutive or concurrent sentences would be an idle act.”); Buckland, 289 F.3d at 572 (\"[EJven if [the defendant] had been indicted only under 21 U.S.C. § 841(b)(1)(C), the trial judge, using the Guidelines and § 5G1.2(d), would have been required to sentence him to 324 months made up of consecutive sentences, each of which would not have exceeded 20 years.”); Angle, 254 F.3d at 518 (\"Had the district court been aware when it sentenced [the defendant] that the maximum penalty for his drug trafficking conviction was 20 years, § 5G1.2(d) would have obligated it to ... order[ ] [the sentences] to be served consecutively.”); Price, 265 F.3d at 1109 (noting" }, { "docid": "22102994", "title": "", "text": "L.Ed.2d 312 (2001); see also United States v. Smith, 240 F.3d 927, 930 (11th Cir.2001) (per cu-riam) (holding that imposition of sentences greater than statutory maximum on each of three counts did not affect appellants’ substantial rights because the sentences imposed did not “exceed the aggregate statutory maximum for the multiple convictions”); cf. United States v. White, 240 F.3d 127, 135 (2d Cir.2001) (rejecting Ap-prendi challenge to imposition of consecutive sentences under § 5G1.2(d) because “the district court did not exceed the maximum for any individual count” and because there is “no constitutionally cognizable right to concurrent, rather than consecutive, sentences”). Apprendi does not foreclose this result. Charles Apprendi “pleaded guilty to two counts (3 and 18) of second-degree possession of a firearm for an unlawful purpose and one count (22) of the third-degree offense of unlawful possession of an antipersonnel bomb.” Apprendi, 530 U.S. at 469-70, 120 S.Ct. 2348 (citations omitted). Although the maximum penalty for each second-degree offense was 10 years, the trial court imposed a sentence of 12 years on count 18 pursuant to a finding, by a preponderance of the evidence, that Ap-prendi had a racially biased purpose in committing the offense. See id. Apprendi maintained that this increase in the maximum sentence violated his rights under the Due Process Clause. See id. Before the Supreme Court, the State of New Jersey argued that there was no error because the trial court could have achieved the same total sentence by imposing consecutive sentences on counts 3 and 18. See id. at 474, 120 S.Ct. 2348. The Supreme Court rejected this argument, reasoning that “[t]he constitutional question ... is whether the 12 year sentence imposed on count 18 was permissible, given that it was above the 10 year maximum for the offense charged in that count.” Id. Apprendi is not controlling. In the above-quoted passage, the Apprendi Court rejected New, Jersey’s argument that there was no error in Apprendi’s sentence because the trial court could have imposed the same sentence even without a finding of racial bias. Here, in contrast, we have already concluded that there was" }, { "docid": "22102992", "title": "", "text": "he would otherwise be subject. Phifer does not posit any way in which the error here, unlike a similar error in Promise, affected his substantial rights, and we can see none. This is so because the grand jury indicted, and the petit jury convicted, Phifer of three crimes, exposing him to a total statutory maximum prison term of 60 years. In the case of multiple counts of conviction, the sentencing guidelines instruct that if the total punishment mandated by the guidelines exceeds the statutory maximum of the most serious offense of conviction, the district court must impose consecutive terms of imprisonment to the extent necessary to achieve the total punishment. See U.S.S.G. § 5G1.2(d). For example, suppose a defendant is convicted of three offenses, each with a statutory maximum term of five years (60 months) imprisonment. If the district court determines that the appropriate sentence under the guidelines is 156 months, § 5G1.2(d) requires the imposition of consecutive terms on each count of conviction until the guideline punishment is achieved. Applying these principles here, we conclude that Phifer’s substantial rights were not affected by the imposition of a 292-month term of imprisonment on the drug trafficking conviction. Had the district court been aware when it sentenced Phifer that the maximum penalty for his drug trafficking conviction was 20 years, § 5G1.2(d) would have obligated it to achieve the guideline sentence of 292 months imprisonment by imposing a term of imprisonment of 240 months or less on each count of conviction and ordering those terms to be served consecutively to achieve the total punishment mandated by the guidelines. See United States v. Sturgis, 238 F.3d 956, 960-61 (8th Cir.2001) (holding that appellant was not prejudiced by imposition of sentence greater than statutory maximum because he was convicted of multiple counts and U.S.S.G. § 5G1.2(d) would have obligated the district court to achieve the same sentence through imposition of consecutive sentences); United States v. White, 238 F.3d 537, 542-43 (4th Cir.2001) (same); United States v. Page, 232 F.3d 536, 544-45 (6th Cir.2000) (same), cert. denied, - U.S. -, 121 S.Ct. 1389, 149" }, { "docid": "22355282", "title": "", "text": "attorney with respect to the testimony of the accomplice witnesses, it appears beyond all doubt that the Apprendi error in this case did not affect the outcome of the proceedings, and, accordingly, did not affect Buck-land’s substantial rights. B. § 5G1.2(d) STACKING There exists yet another basis on which to conclude that Buckland’s sentence did not affect his substantial rights. The jury convicted him, in addition to the conspiracy charge, of three substantive counts, which, given Apprendi and the circumstances of this case, exposed him at sentencing on each count to a maximum statutory term of 20 years (240 months). However, the district court determined under U.S.S.G. § 2D1.1(a)(3) that his sentence should be 324 months based on a combined offense level of 36 and a Guideline range of 320 to 405 months. As in United States v. Angle, 254 F.3d 514 (4th Cir.) (en banc), cert. denied, — U.S. -, 122 S.Ct. 309, 151 L.Ed.2d 230 (2001), [h]ad the district court been aware when it sentenced [Buekland] that the maximum penalty for his drug trafficking conviction [per count] was 20 years, § 5G1.2(d) would have obligated [the court ] to achieve the guideline sentence of [324] months imprisonment by imposing a term of 240 months or less on each count of conviction and ordering those terms to be served consecutively to achieve the total punishment mandated by the Guidelines. Id. at 518. This process is known as “stacking,” and we have previously acknowledged its validity in Kentz, 251 F.3d at 842, where we held that any error in a 160 month sentence was harmless for a defendant convicted of twenty-one counts, each with a five-year maximum, because § 5G1.2(d) would require consecutive sentences to achieve the total punishment calculated by the Guidelines. In Kentz, we relied on United States v. White, 238 F.3d 537 (4th Cir.), cert. denied, 532 U.S. 1074, 121 S.Ct. 2235, 150 L.Ed.2d 225 (2001). White makes it clear that the keys to understanding this process are two. First, in calculating sentences in drug cases, two separate findings of drug quantity must be made, one under" } ]

[ { "docid": "22345498", "title": "", "text": "at liberty to question the district court as to the nature and consequences of his legal representation. Most significantly, the court should seek to elicit a narrative response from each defendant that he has been advised of his right to effective representation, that he understands the details of his attorney’s possible conflict of interest and the potential perils of such a conflict, that he has discussed the matter with his attorney or if he wishes with outside counsel, and that he voluntarily waives his Sixth Amendment protections. Cf. United States v. Foster, 469 F.2d 1 (1st Cir. 1972). It is, of course, vital that the waiver be established by “clear, unequivocal, and unambiguous language.” National Equipment Rental v. Szukhert, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354, 367-8 (1964). Mere assent in response to a series of questions from the bench may in some circumstances constitute an adequate waiver, but the court should nonetheless endeavor to have each defendant personally articulate in detail his intent to forego this significant constitutional protection. Recordation of the waiver colloquy between defendant and judge will also serve the government’s interest by assisting in shielding any potential conviction from collateral attack, either on Sixth Amendment grounds or on a Fifth or Fourteenth Amendment “fundamental fairness” basis. The conclusion reached in this case in no sense minimizes the constitutional guarantee of the effective and competent assistance of counsel in criminal prosecutions. We hold only that if, as a matter of fact, a defendant after thorough consultation with the trial judge knowingly, intelligently and voluntarily wishes to waive this protection, the Constitution does not prevent him from so doing. Reversed and remanded with directions. . Avila, Zavala, Albert, Jackson, Gonzalez, Smith, Davis, and Garcia were charged with conspiracy against the rights of citizens, deprivation of the rights of citizens, and the filing of income tax returns containing false statements. In separate indictments, Garcia was also charged with perjury before a federal grand jury and filing income tax returns which contained false statements. Zavala, Gonzalez, and Collins were indicted in yet another case for conspiracy to possess" } ]

[ { "docid": "217500", "title": "", "text": "a lawyer may simultaneously represent more than one party and even cross-examine a current client without creating an actual conflict. See, e.g., Barham v. United States, 724 F.2d 1529 (11th Cir.1984). In Barham, an attorney simultaneously represented a criminal defendant and a prosecution witness in a civil matter; however, the matters were unrelated and the witness was not critical to the prosecution’s case. Barham, 724 F.2d at 1530-31. Here the matters were related, and the witness’s testimony was critical. The inherently antagonistic task of cross-examining a client was made more serious by the presence of the insurance clause, which placed Pick-ard’s two clients in adversary positions. This forced Pickard to take or to anticipate taking conflicting positions about the events central to appellant’s criminal trial. The conflict was actual, obvious and serious enough that the attorney should have at least discussed the issue with his clients and the court. Objection to a conflict of interest may be waived by the client, but the waiver must be through “clear, unequivocal, and unambiguous language.” United States v. Petz, 764 F.2d 1390, 1392 (11th Cir.1985) (quoting United States v. Garcia, 517 F.2d 272, 278 (5th Cir.1975) (citations omitted)); United States v. Mers, 701 F.2d 1321, 1325 (11th Cir.1983). In this case, appellant was not aware of the legal basis for the conflict of interest until 1986, two years after his criminal trial. See supra n. 1. Even had appellant known of the conflict before trial, nothing in the record establishes that appellant unequivocally waived his objections to Pickard’s dual representation. We hold, therefore, that McConico has shown an actual conflict of interest that has not been waived. ADVERSE EFFECT We next determine whether Pick-ard’s conflict of interest had an “adverse effect” on his representation of appellant. The United States Supreme Court has cautioned that “it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.” Strickland, 466 U.S. at 692, 104 S.Ct. at 2067; Holloway v. Arkansas, 435 U.S. 475, 490-91, 98 S.Ct. 1173, 1181-82, 55 L.Ed.2d 426 (1978). For this reason, the law formerly was that" }, { "docid": "6225822", "title": "", "text": "his attorney’s conflict of interest, and whether he still wanted the attorney to continue. The state argued that since the state trial court had previously appointed counsel for defendant Gray, he must have been aware of the trial court’s power to appoint another attorney. The former Fifth Circuit rejected the argument and stated: The initial appointment of counsel came early in the criminal proceeding. It may be that this appointment indicated to Gray that the trial court had the power to appoint counsel at any time. It seems more likely, however, that Gray would not infer from this appointment that on the day of trial it was within the judge’s discretion to appoint new counsel. Additionally, even if Gray had wanted a new lawyer, it cannot be presumed that he knew that the trial judge had the power to postpone the trial which was set for that very day. Gray may have felt that it was in his best interest to continue with Proctor, who had some knowledge of the facts, rather than switch on the day of trial to a conflict-free counsel who was unfamiliar with any aspect of the case. In short, the fact that Gray once had counsel appointed for him does not establish that he was aware of his right to have new counsel appointed at this particular time and under these particular circumstances. Id. at 805 (emphasis in original). Although the prosecutor’s objection to the continuation of Petz’ present counsel, and the district judge’s discussion with Petz — referring to independent counsel and inquiring whether Petz wished to proceed with present counsel — provide at the least a very strong inference that Petz knew he had the right to independent counsel, we are not prepared to say on this record that such understanding is “clear, unequivocal and unambiguous,” which is the standard by which the waiver must be tested. Garcia, 517 F.2d at 278. Moreover, there was no mention at all that Petz would have been entitled to a continuance to permit independent counsel to prepare. Although Petz may have realized that the right to" }, { "docid": "20890694", "title": "", "text": "evaluate the actual or potential ineffectiveness of counsel caused by the alleged conflicts of interest. Id. at 277. “The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused.” Id. at 277 n. 5, quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938). A defendant’s waiver must be established by “ ‘clear, unequivocal, and unambiguous language.’ ” Id. at 278. The record should show, in some way, that the defendant was aware of the conflict of interest; realized the conflict could affect the defense; and knew of the right to obtain other counsel. See United States v. Petz, 764 F.2d 1390, 1393-94 (11th Cir. 1985); Garcia, 517 F.2d at 278 (describing procedure to obtain waiver). Although the court should try to elicit narrative replies, “[m]ere assent in response to a series of questions from the bench” may in some cases constitute adequate waiver. Id. Angel. Angel Rodriguez seemed to understand the possible conflict, acknowledged that he had the right to separate counsel, and nonetheless wanted Golburgh to represent him. Given the court inquiry and Angel’s narrative responses, the record establishes that Angel consented to the joint representation. Santiago. Santiago Rodriguez believed that there would be no important conflict of interest and insisted that Golburgh represent him. The Court expressly informed Santiago of some of the risks and of his right to separate counsel. The most difficult issue concerns whether Santiago knew of his right to separate counsel, because he did not respond to the judge’s question on this point. Nevertheless, a review of “the particular facts and circumstances surrounding the case” shows that Santiago was aware of this right. Santiago’s insistence on Golburgh, which came shortly after the judge’s remarks on the right to separate counsel, shows that Santiago had a “clear, unequivocal, and unambiguous” understanding of his option to have alternative representation. The record supports the government’s claim that Angel and Santiago made informed decisions" }, { "docid": "20890696", "title": "", "text": "to retain Golburgh. As a result of these decisions, defendants waived any claims resulting from an adverse conflict of interest in this joint representation. The judgment of the District Court is AFFIRMED. . Defendants also argue that the district court abused its discretion in failing to sever their trials, that the court erred in admitting kidnapping evidence and coconspirator statements, that the evidence was insufficient to support the convictions, that a material variance existed between the conspiracy charge and evidence presented at trial, and that one of the sentences was infirm. These contentions lack merit. . At trial, Golburgh’s defense strategy focused on challenges to the credibility of government witnesses and did not distinguish among these three co-defendants. . Defendants also advance a different kind of conflict of interest issue. They say that Arthur Newman, a disbarred attorney, was closely associated with Golburgh in the defense and that Newman, as a potential witness and possible coconspirator, was disqualified from representing defendants. Therefore, defendants say Golburgh was also disqualified. See generally United States v. Tatum, 943 F.2d 370, 378-79 (4th Cir.1991) (trial counsel had vicarious conflicts due to close association during trial with other counsel who had conflict); United States v. Melo, 702 F.Supp. 939 (D.Mass.1988) (discussing conflicts that arise where attorney representing defendants at trial was involved with alleged representation of conspiracy members during conspiracy); Florida Bar Rules 4-1.7, 4-1.10, 4-3.7. Defendants did not raise this issue in district court; and we decline to consider it on appeal, but without prejudice to a later 28 U.S.C. § 2255 petition. Newman’s exact role in this trial will need to be developed factually before his acts can be used to justify setting aside these convictions. . Lazaro, whose overall situation was very similar to Santiago’s, actually changed his mind and requested a separate counsel the next day. Although Lazaro ultimately chose to keep Golburgh, his request indicates that the judge's instructions were sufficient for defendants to have a full understanding of their Sixth Amendment rights. . It is instructive to compare the details of this case with United States v. Petz, 764" }, { "docid": "6225825", "title": "", "text": "faced with a conflict of interest on the part of trial counsel, the former Fifth Circuit simply reversed the conviction, without giving the government an opportunity to prove a valid waiver either on remand or in collateral proceedings. However, in Martinez, the trial judge had failed to address the defendant at all on the subject of waiver. Unlike Martinez, the district judge here did address the defendant personally, and came very close to satisfying the Garcia requirements. In this case, the record provides strong inferences that Petz did in fact possess the necessary understanding and did in fact make a knowing and intelligent waiver; the record falls short only in its failure to meet the “clear, unequivocal and unambiguous” standard. Under these circumstances, we conclude that it would best serve the interests of justice to defer the resolution of this waiver issue to a collateral proceeding. Thus, we decline at this time to resolve the waiver issue. Petz is free to raise the issue in collateral proceedings, at which time the government will have an opportunity to prove that Petz did in fact make a knowing and intelligent waiver. Petz also asserts a challenge to his jury instructions, which we find to be without merit and to warrant no discussion. With respect to that issue, we affirm. Thus, the decision of the district court is AFFIRMED without prejudice to defendant’s right to renew his waiver of conflict of interest claim in a collateral proceeding. AFFIRMED. . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Id. at 1209. . The government attempts to distinguish Zuck v. Alabama, 588 F.2d 436 (5th Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979), and Gray v. Estelle, supra, by noting that both cases involved habeas petitions where the state court record was silent on whether the defendant received the requisite Garcia information. In such a situation, the state" }, { "docid": "1201069", "title": "", "text": "performance of the plea agreement, resentencing is required. At resentencing, the district court should consider only the evidence of cocaine in the automobile when determining a sentence on the conspiracy count. Any presentence report should likewise relate only to the cocaine in the automobile. III. Tobon-Hemandez’s final contention is that he was denied effective assistance of counsel because his counsel was paid by a third party whose interests conflicted with his own. The government correctly argues that the payment of legal fees by a third party does not automatically rise to the level of a conflict of interest. Tobon-Hemandez has not produced any evidence that his lawyer represented anyone’s interests other than his own. Because conflict of interest must be actual, and not speculative, Tobon-Hemandez’s conflict of interest claim must fail. Burger v. Kemp, 753 F.2d 930, 941 (11th Cir.1985). Additionally, due to the under-developed record, the resolution of the conflict of interest issue may be better resolved in collateral proceedings. See United States v. Petz, 764 F.2d 1390, 1394 (11th Cir.1985). Accordingly, Tobon-Hemandez’s convictions are affirmed. The sentences are vacated, and the case is remanded for resen-tencing by another judge in compliance with the plea agreement. AFFIRMED in part and VACATED and REMANDED. As can be seen from these statements, neither the prosecutor nor the defense counsel sought to clarify what the plea agreement encompassed. Nevertheless, we must consider the record as we find it. One way of viewing this case is that confusion arose about the intent of the parties when entering the plea agreement and counsel did nothing to clear up the confusion." }, { "docid": "20890697", "title": "", "text": "F.2d 370, 378-79 (4th Cir.1991) (trial counsel had vicarious conflicts due to close association during trial with other counsel who had conflict); United States v. Melo, 702 F.Supp. 939 (D.Mass.1988) (discussing conflicts that arise where attorney representing defendants at trial was involved with alleged representation of conspiracy members during conspiracy); Florida Bar Rules 4-1.7, 4-1.10, 4-3.7. Defendants did not raise this issue in district court; and we decline to consider it on appeal, but without prejudice to a later 28 U.S.C. § 2255 petition. Newman’s exact role in this trial will need to be developed factually before his acts can be used to justify setting aside these convictions. . Lazaro, whose overall situation was very similar to Santiago’s, actually changed his mind and requested a separate counsel the next day. Although Lazaro ultimately chose to keep Golburgh, his request indicates that the judge's instructions were sufficient for defendants to have a full understanding of their Sixth Amendment rights. . It is instructive to compare the details of this case with United States v. Petz, 764 F.2d 1390 (11th Cir.1985), where we concluded that the evidence fell just short of the \"clear, unequivocal, and unambiguous” threshold. In Petz, the district court did make the defendant aware of his counsel’s conflict of interest and specifically informed the defendant that his counsel would be less thorough in some of his cross-examinations — just as the judge in this case made Angel and Santiago aware of the conflict and of some of its consequences. Unlike this case, however, the judge in Petz never expressly informed Petz of his right to separate counsel; as a result, Petz's Garcia hearing was inadequate." }, { "docid": "1201068", "title": "", "text": "with the plea agreement. The second remedy is withdrawal of the plea of guilty. Santobello, 404 U.S. at 263, 92 S.Ct. at 499. The majority in Santobello did not hold that a defendant’s choice of remedy for a breach of a plea agreement was binding on the court. Rather, the remedy for a breach of a plea agreement is within the sound discretion of the court. United States v. Nelson, 837 F.2d 1519, 1525 n. 3 (11th Cir.1988); In Re Arnett, 804 F.2d 1200, 1204 (11th Cir.1986) (citing Santobello for the proposition that the fashioning of the remedy when the government breaches the plea agreement is within the court’s discretion). We exercise our discretion, as we did in Nelson, in favor of specific performance. Tobon-Hemandez knowingly and voluntarily entered his guilty plea. To allow him to withdraw that plea and proceed to trial would be unwarranted. Rather, his voluntary plea agreement should bind him just as it binds the government. Because we hold that the government’s breach of the plea agreement entitles To-bon-Hernandez to specific performance of the plea agreement, resentencing is required. At resentencing, the district court should consider only the evidence of cocaine in the automobile when determining a sentence on the conspiracy count. Any presentence report should likewise relate only to the cocaine in the automobile. III. Tobon-Hemandez’s final contention is that he was denied effective assistance of counsel because his counsel was paid by a third party whose interests conflicted with his own. The government correctly argues that the payment of legal fees by a third party does not automatically rise to the level of a conflict of interest. Tobon-Hemandez has not produced any evidence that his lawyer represented anyone’s interests other than his own. Because conflict of interest must be actual, and not speculative, Tobon-Hemandez’s conflict of interest claim must fail. Burger v. Kemp, 753 F.2d 930, 941 (11th Cir.1985). Additionally, due to the under-developed record, the resolution of the conflict of interest issue may be better resolved in collateral proceedings. See United States v. Petz, 764 F.2d 1390, 1394 (11th Cir.1985). Accordingly, Tobon-Hemandez’s convictions" }, { "docid": "6225823", "title": "", "text": "the day of trial to a conflict-free counsel who was unfamiliar with any aspect of the case. In short, the fact that Gray once had counsel appointed for him does not establish that he was aware of his right to have new counsel appointed at this particular time and under these particular circumstances. Id. at 805 (emphasis in original). Although the prosecutor’s objection to the continuation of Petz’ present counsel, and the district judge’s discussion with Petz — referring to independent counsel and inquiring whether Petz wished to proceed with present counsel — provide at the least a very strong inference that Petz knew he had the right to independent counsel, we are not prepared to say on this record that such understanding is “clear, unequivocal and unambiguous,” which is the standard by which the waiver must be tested. Garcia, 517 F.2d at 278. Moreover, there was no mention at all that Petz would have been entitled to a continuance to permit independent counsel to prepare. Although Petz may have realized that the right to a continuance was implicit in the district judge’s colloquy, we cannot conclude that the implication was “clear, unequivocal and unambiguous.” Moreover, Gray suggests that it would be inappropriate to presume that Petz “knew that the trial judge had the power to postpone the trial which was set for that very day.” Having concluded that the present record on appeal does not establish a “clear, unequivocal and unambiguous” waiver, there is some indication in our precedent that a simple reversal is the appropriate remedy. In Garcia, the court “instructed] the district court to follow a procedure ... whereby the defendant’s voluntariness and knowledge of the guilty plea will be manifest on the face of the record. ” United States v. Garcia, 517 F.2d at 278 (emphasis added). Moreover, in United States v. Mahar, 550 F.2d 1005, 1009 (5th Cir.1977), this court’s predecessor “serve[d] notice upon all courts in our jurisdiction ... that the ambivalence in a situation such as this must not arise again.” Subsequently, in United States v. Martinez, 630 F.2d 361 (5th Cir.1980), when" }, { "docid": "6225826", "title": "", "text": "opportunity to prove that Petz did in fact make a knowing and intelligent waiver. Petz also asserts a challenge to his jury instructions, which we find to be without merit and to warrant no discussion. With respect to that issue, we affirm. Thus, the decision of the district court is AFFIRMED without prejudice to defendant’s right to renew his waiver of conflict of interest claim in a collateral proceeding. AFFIRMED. . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. Id. at 1209. . The government attempts to distinguish Zuck v. Alabama, 588 F.2d 436 (5th Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979), and Gray v. Estelle, supra, by noting that both cases involved habeas petitions where the state court record was silent on whether the defendant received the requisite Garcia information. In such a situation, the state bears the burden of showing that the defendant knew that a conflict existed, that he realized the consequences of the conflict, and that he realized that he had the right to obtain other counsel. Zuck, 588 F.2d at 440. The government then argues that since there is a record of the Garcia hearing in the instant case, there is no requirement to affirmatively show that the appellant knew of his right to obtain other counsel. We disagree. The fact that both Gray and Zuck were habeas cases renders compliance with the requirements enunciated in those cases even more of a necessity since the court was determining the minimal standards for a constitutionally sufficient waiver. If the states are constitutionally required to prove that the accused knew of his right to outside counsel, a fortiori, the federal courts must do at least as much. . Other courts have deemed it appropriate to handle this problem in a similar fashion. Wood v. Georgia, 450 U.S. 261, 273-74, 101 S.Ct. 1097, 1104-05, 67 L.Ed.2d 220 (1981) (remanding case" }, { "docid": "6225815", "title": "", "text": "R. LANIER ANDERSON, III, Circuit Judge: Andrew Petz (“Petz”) appeals from his convictions for: aiding and abetting Earl Lee Osborne and William Herbert Bishop in possessing marijuana with intent to distribute while aboard a vessel of the United States in violation of 21 U.S.C. § 955a(a) and 18 U.S.C. § 2; conspiracy to possess marijuana with intent to distribute in. violation of 21 U.S.C. §§ 955a(a) and 955c; conspiracy to import marijuana into the United States in violation of 21 U.S.C. §§ 952(a) and 963; and attempting to import marijuana into the United States in violation of 21 U.S.C. §§ 952 and 963 and 18 U.S.C. § 2. We affirm without prejudice to defendant’s right to renew his waiver of conflict of interest claim in a collateral proceeding. I. FACTS Roy E. Amos and Andrew Petz were indicted for the above-listed offenses on June 30,1983. The persons Petz and Amos were alleged to have aided and abetted, Osborne and Bishop, were convicted of or pled guilty to offenses arising from the same conspiracy in 1981. Just prior to jury selection, the district court discovered that Petz’ counsel had previously represented Bishop, a witness who was scheduled to testify for the government in Petz’ case. Realizing that there was a strong likelihood that a conflict of interest might develop at trial, the district court conducted the following examination: THE COURT: Mr. Petz, I am advised by Mr. Grusmark that he formerly represented Mr. Bishop ... THE COURT: and that an attorney-client relationship existed between you, that those two persons, it would appear there may well be some form of a conflict existing that he would not be able to represent you with all the vigor necessary. Are you aware of that? MR. PETZ: Yes. THE COURT: Have you discussed it thoroughly? MR. PETZ: Yes. MR. KEHOE: He said he was there representing Osborne, both of them. THE COURT: I do not know anything. MR. KEHOE: In the first count. THE COURT: The same thing goes, he contends he also represented Earl Osborne. They will be witnesses in this case and you" }, { "docid": "20890692", "title": "", "text": "more evidence against one of you then [sic] against the other two and that Mr. Golburgh is going to have to fight that evidence and try to defend against it. She is suggesting that it is possible that his representing the one who has more evidence presented against him may in some way reflect on your cases. When I say reflect on your cases, I think what she is saying is that the fact that the Government will present more evidence against Angel, I guess it is— Mr. Golburgh: Correct. The Court: —will affect you because you have the same lawyer. Now, I don’t know whether or not that will we [sic] the case. I don’t know what Mr. Golburgh is going to present, but it is something you should think about and if you understand that, and if you, nonetheless, wish Mr. Golburgh to represent you, you may have Mr. Golburgh representing all 3 of you. Defendant Santiago Rodriguez: I do for myself insist on Mr. Golburgh. Defendant Lazaro Rodriguez: I do, too. The Court: Mr. Angel Rodriguez? Defendant Angel Rodriguez: I do, sir. No Sixth Amendment Violation On appeal, both Angel and Santiago contend that the joint representation involved an actual conflict of interest that affected each of them adversely. Both defendants argue that separate representation would have enabled a “blame-shifting” strategy, in which culpability could have been attributed to the other defendants. A criminal defendant’s right to effective assistance of counsel is violated where the defendant’s attorney has an actual conflict of interest that affects the defendant adversely. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); United States v. Petz, 764 F.2d 1390, 1392 (11th Cir.1985). A defendant may waive this right by choosing to proceed to trial with an attorney who has an adverse conflict of interest. United States v. Garcia, 517 F.2d 272, 276 (5th Cir.1975). “Thus, even though the right to competent counsel is ‘fundamental,’ [footnote omitted], it may nonetheless be waived.” Id. A determination that defendants have waived the right to conflict-free counsel disposes of the need to" }, { "docid": "6225820", "title": "", "text": "the defendant: (1) was aware that a conflict of interest existed; (2) realized the consequences to his defense that continuing with counsel under the onus of a conflict could have; and (3) was aware of his right to obtain other counsel. Gray v. Estelle, 616 F.2d 801, 804 (5th Cir.1980) (quoting Zuck v. State of Alabama, 588 F.2d 436, 440 (5th Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979)). It is clear that the Garcia hearing in the instant case met the first two requirements enunciated in Gray. Petz was certainly aware of the conflict of interest, and the district court specifically informed Petz that his attorney would, in all likelihood, be unable to cross-examine the government’s witnesses as thoroughly as independent counsel. Whether the third requirement — that Petz was aware of his right to obtain other counsel — has been satisfied is a more troublesome question. It is true that Petz was not expressly advised by the court that he had the right to consult on the matter with independent counsel, or that he had the right to another trial attorney if his current one were disqualified. The government argues, however, that Petz was nonetheless aware of his right to independent counsel. The government objected to Petz’ current counsel continuing in the case, because of the conflict of interest. The district judge personally addressed Petz, inquiring whether or not he was aware of the conflict, whether or not he was aware that his present attorney might not be able to cross-examine the witnesses (the attorney’s former clients) “as thoroughly as some independent attorney,” and whether or not Petz still wished to go ahead with his present attorney notwithstanding that knowledge. The government argues that necessarily implicit in those questions from the bench was the fact that Petz would not be required to continue with his present counsel, and that he was entitled to independent counsel. Petz argues that Gray v. Estelle is inconsistent with the government’s approach. In Gray, the defendant was asked on the day of trial whether he was aware of" }, { "docid": "20890693", "title": "", "text": "Court: Mr. Angel Rodriguez? Defendant Angel Rodriguez: I do, sir. No Sixth Amendment Violation On appeal, both Angel and Santiago contend that the joint representation involved an actual conflict of interest that affected each of them adversely. Both defendants argue that separate representation would have enabled a “blame-shifting” strategy, in which culpability could have been attributed to the other defendants. A criminal defendant’s right to effective assistance of counsel is violated where the defendant’s attorney has an actual conflict of interest that affects the defendant adversely. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); United States v. Petz, 764 F.2d 1390, 1392 (11th Cir.1985). A defendant may waive this right by choosing to proceed to trial with an attorney who has an adverse conflict of interest. United States v. Garcia, 517 F.2d 272, 276 (5th Cir.1975). “Thus, even though the right to competent counsel is ‘fundamental,’ [footnote omitted], it may nonetheless be waived.” Id. A determination that defendants have waived the right to conflict-free counsel disposes of the need to evaluate the actual or potential ineffectiveness of counsel caused by the alleged conflicts of interest. Id. at 277. “The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused.” Id. at 277 n. 5, quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938). A defendant’s waiver must be established by “ ‘clear, unequivocal, and unambiguous language.’ ” Id. at 278. The record should show, in some way, that the defendant was aware of the conflict of interest; realized the conflict could affect the defense; and knew of the right to obtain other counsel. See United States v. Petz, 764 F.2d 1390, 1393-94 (11th Cir. 1985); Garcia, 517 F.2d at 278 (describing procedure to obtain waiver). Although the court should try to elicit narrative replies, “[m]ere assent in response to a series of questions from the bench” may in some cases constitute" }, { "docid": "6225819", "title": "", "text": "that he has been advised of his right to effective representation, that he understands the details of his attorney’s possible conflict of interest and the potential perils of such a conflict, that he has discussed the matter with his attorney or if he wishes with outside counsel, and that he voluntarily waives his Sixth Amendment protections____ It is, of course, vital that the waiver be established by “clear, unequivocal, and unambiguous language.” ... Mere assent in response to a series of questions from the bench may in some circumstances constitute an adequate waiver, but the court should nonetheless endeav- or to have each defendant personally articulate in detail his intent to forego this significant constitutional protection. Recordation of the waiver colloquy between defendant and judge will also serve the government’s interest by assisting in shielding any potential conviction from collateral attack, either on Sixth Amendment grounds or on a Fifth or Fourteenth Amendment “fundamental fairness” basis. Garcia, 517 F.2d at 278 (citations omitted). In the habeas corpus context, Garcia has been interpreted to require that the defendant: (1) was aware that a conflict of interest existed; (2) realized the consequences to his defense that continuing with counsel under the onus of a conflict could have; and (3) was aware of his right to obtain other counsel. Gray v. Estelle, 616 F.2d 801, 804 (5th Cir.1980) (quoting Zuck v. State of Alabama, 588 F.2d 436, 440 (5th Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979)). It is clear that the Garcia hearing in the instant case met the first two requirements enunciated in Gray. Petz was certainly aware of the conflict of interest, and the district court specifically informed Petz that his attorney would, in all likelihood, be unable to cross-examine the government’s witnesses as thoroughly as independent counsel. Whether the third requirement — that Petz was aware of his right to obtain other counsel — has been satisfied is a more troublesome question. It is true that Petz was not expressly advised by the court that he had the right to consult on the matter" }, { "docid": "6225817", "title": "", "text": "specifically waive any objection to your counsel? MR. PETZ: Definitely. THE COURT: Representing him. Do you do so with your eyes wide opened? I told you it might well be, not on its face, a conflict. MR. PETZ: Yes. THE COURT: Do you understand he may not be able to cross-examine these witnesses as thoroughly as some independent attorney might? MR. PETZ: He explained all the ramifications to me. THE COURT: Still you wish to go ahead? MR. PETZ: Yes, I do. On appeal, Petz argues that his attempted waiver of his right to conflict-free counsel was ineffective in'that the waiver failed to meet the requirements articulated in United States v. Garcia, 517 F.2d 272 (5th Cir.1975). Petz also asserts on appeal a challenge to his jury instructions. DISCUSSION A criminal defendant’s Sixth Amendment right to effective assistance of counsel is violated where the defendant’s attorney has an actual conflict of interest which adversely affects his performance. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). The government does not argue that there was no actual conflict of interest. United States v. Garcia held, however, that despite the Sixth Amendment’s guarantee of effective assistance of counsel, a criminal defendant could waive this right by choosing to proceed to trial with an attorney who had a conflict of interest. The Garcia court also stated, however, that before allowing a defendant to waive the right to conflict-free assistance of counsel, certain procedures should be followed: [W]e instruct the district court to follow a procedure akin to that promulgated in Fed.R.Crim.P. 11 whereby the defendant’s voluntariness and knowledge of the consequences of a guilty plea will be manifest on the face of the record____ As in Rule 11 procedures, the district court should address each defendant personally and forthrightly advise him of the potential dangers of representation by counsel with a conflict of interest. The defendant must be at liberty to question the district court as to the nature and consequences of his legal representation. Most significantly, the court should seek to elicit a narrative response from each defendant" }, { "docid": "6225824", "title": "", "text": "a continuance was implicit in the district judge’s colloquy, we cannot conclude that the implication was “clear, unequivocal and unambiguous.” Moreover, Gray suggests that it would be inappropriate to presume that Petz “knew that the trial judge had the power to postpone the trial which was set for that very day.” Having concluded that the present record on appeal does not establish a “clear, unequivocal and unambiguous” waiver, there is some indication in our precedent that a simple reversal is the appropriate remedy. In Garcia, the court “instructed] the district court to follow a procedure ... whereby the defendant’s voluntariness and knowledge of the guilty plea will be manifest on the face of the record. ” United States v. Garcia, 517 F.2d at 278 (emphasis added). Moreover, in United States v. Mahar, 550 F.2d 1005, 1009 (5th Cir.1977), this court’s predecessor “serve[d] notice upon all courts in our jurisdiction ... that the ambivalence in a situation such as this must not arise again.” Subsequently, in United States v. Martinez, 630 F.2d 361 (5th Cir.1980), when faced with a conflict of interest on the part of trial counsel, the former Fifth Circuit simply reversed the conviction, without giving the government an opportunity to prove a valid waiver either on remand or in collateral proceedings. However, in Martinez, the trial judge had failed to address the defendant at all on the subject of waiver. Unlike Martinez, the district judge here did address the defendant personally, and came very close to satisfying the Garcia requirements. In this case, the record provides strong inferences that Petz did in fact possess the necessary understanding and did in fact make a knowing and intelligent waiver; the record falls short only in its failure to meet the “clear, unequivocal and unambiguous” standard. Under these circumstances, we conclude that it would best serve the interests of justice to defer the resolution of this waiver issue to a collateral proceeding. Thus, we decline at this time to resolve the waiver issue. Petz is free to raise the issue in collateral proceedings, at which time the government will have an" }, { "docid": "6225821", "title": "", "text": "with independent counsel, or that he had the right to another trial attorney if his current one were disqualified. The government argues, however, that Petz was nonetheless aware of his right to independent counsel. The government objected to Petz’ current counsel continuing in the case, because of the conflict of interest. The district judge personally addressed Petz, inquiring whether or not he was aware of the conflict, whether or not he was aware that his present attorney might not be able to cross-examine the witnesses (the attorney’s former clients) “as thoroughly as some independent attorney,” and whether or not Petz still wished to go ahead with his present attorney notwithstanding that knowledge. The government argues that necessarily implicit in those questions from the bench was the fact that Petz would not be required to continue with his present counsel, and that he was entitled to independent counsel. Petz argues that Gray v. Estelle is inconsistent with the government’s approach. In Gray, the defendant was asked on the day of trial whether he was aware of his attorney’s conflict of interest, and whether he still wanted the attorney to continue. The state argued that since the state trial court had previously appointed counsel for defendant Gray, he must have been aware of the trial court’s power to appoint another attorney. The former Fifth Circuit rejected the argument and stated: The initial appointment of counsel came early in the criminal proceeding. It may be that this appointment indicated to Gray that the trial court had the power to appoint counsel at any time. It seems more likely, however, that Gray would not infer from this appointment that on the day of trial it was within the judge’s discretion to appoint new counsel. Additionally, even if Gray had wanted a new lawyer, it cannot be presumed that he knew that the trial judge had the power to postpone the trial which was set for that very day. Gray may have felt that it was in his best interest to continue with Proctor, who had some knowledge of the facts, rather than switch on" }, { "docid": "12635240", "title": "", "text": "it is clear that there was in effect a waiver of the right to counsel by implication from the acts or failure to act of the defendants. However, the clear language of the statute requires an express waiver. To have an express waiver, there must be a voluntary, intentional relinquishment of a known right. The present record will not support a finding of an express waiver by the defendants, and the trial judge did not find that there was an express waiver. Without such a finding and without an appearance through counsel, the thirty-day limitation contained in (c)(2) never began to run. United States v. Wright, 797 F.2d 171, 175 (4th Cir.1986). The court found error warranting a new trial. Id. at 176. The court did recognize, however, the problem with its position. It noted that “[t]his is a difficult decision because the trial judge recognized that the defendants were intentionally trying to disrupt the calendar of the court, and if possible, to create error in the process.” Id. at 176. The court decided that when a trial court is faced with a defendant who refuses to either retain or expressly waive counsel, the court must bring such defendant into court and make a finding on the record that the actions or lack of actions of the defendant are the voluntary and intentional relinquishment of his known right to be represented by an attorney____ The trial judge should then set a date for trial not less than thirty days in the future, and he should advise the defendant that his trial will commence on that date whether he is represented by an attorney or whether he appears pro se. Id. at 176. Although we hold that the record supports the District Court’s finding that defendant knowingly and intelligently waived her right to counsel, we are unable to find that defendant expressly waived the right more than thirty days prior to the commencement of trial. In fact, we do not know whether the District Court could have obtained an express waiver in view of defendant’s demand for representation by a layperson." }, { "docid": "6225816", "title": "", "text": "Just prior to jury selection, the district court discovered that Petz’ counsel had previously represented Bishop, a witness who was scheduled to testify for the government in Petz’ case. Realizing that there was a strong likelihood that a conflict of interest might develop at trial, the district court conducted the following examination: THE COURT: Mr. Petz, I am advised by Mr. Grusmark that he formerly represented Mr. Bishop ... THE COURT: and that an attorney-client relationship existed between you, that those two persons, it would appear there may well be some form of a conflict existing that he would not be able to represent you with all the vigor necessary. Are you aware of that? MR. PETZ: Yes. THE COURT: Have you discussed it thoroughly? MR. PETZ: Yes. MR. KEHOE: He said he was there representing Osborne, both of them. THE COURT: I do not know anything. MR. KEHOE: In the first count. THE COURT: The same thing goes, he contends he also represented Earl Osborne. They will be witnesses in this case and you specifically waive any objection to your counsel? MR. PETZ: Definitely. THE COURT: Representing him. Do you do so with your eyes wide opened? I told you it might well be, not on its face, a conflict. MR. PETZ: Yes. THE COURT: Do you understand he may not be able to cross-examine these witnesses as thoroughly as some independent attorney might? MR. PETZ: He explained all the ramifications to me. THE COURT: Still you wish to go ahead? MR. PETZ: Yes, I do. On appeal, Petz argues that his attempted waiver of his right to conflict-free counsel was ineffective in'that the waiver failed to meet the requirements articulated in United States v. Garcia, 517 F.2d 272 (5th Cir.1975). Petz also asserts on appeal a challenge to his jury instructions. DISCUSSION A criminal defendant’s Sixth Amendment right to effective assistance of counsel is violated where the defendant’s attorney has an actual conflict of interest which adversely affects his performance. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). The government does not argue" } ]

[ { "docid": "12509898", "title": "", "text": "L.Ed.2d 101 (1981) (a ruling that there is no private claim under a federal statute disposes of the case, because a court “cannot consider the merits of a claim which Congress has not authorized”); Taylor-Callahan-Coleman Counties, 948 F.2d at 956 (a determination that there is no final agency action under the APA means that there is no subject matter jurisdiction over dispute). For the foregoing reasons, we REVERSE the district court’s April 4, 1991 order awarding permanent injunctive relief against HACH and HUD and REMAND the case with instructions, that the Plaintiffs’ complaint be dismissed. . In this regard, we note that HUD, in its brief to this court, has not attempted to expand the scope of HACH’s appeal. Instead, it has confined its arguments to those raised by HACH. . It is important to note that the Plaintiffs are seeking to enforce rights allegedly created by the Frost-Leland Amendment, and not rights secured by 42 U.S.C. § 1437p. In their brief on appeal, the Resident Council's first reply point states that \"THE FROST LELAND AMENDMENT PROVIDES THE RESIDENT COUNCIL AND TENANTS OF APV WITH SUBSTANTIVE AND IMPLIED RIGHTS TO A PRIVATE CAUSE OF ACTION UNDER 42 U.S.C. SECTION 1983.\" Thus, while the district court may have been correct in stating that 42 U.S.C. § 1437p creates enforceable federal rights, the question is whether the Frost-Leland Amendment creates such rights. . In interpreting the Frost-Leland Amendment, this court has already stated that it eliminates only federal funding of demolition, “not state or local financing.” Walker v. United States Dep’t of Hous. & Urban Dev., 912 F.2d 819, 829 (5th Cir.1990). The amendment does not, this court continued, \"preclude demolitions generally or reverse HUD’s approval of the demolitions.... Regardless of the sponsor[s’] obvious motivation to derail demolitions, the legislation only withdraws federal appropriations.” Id. . Although the courts in these cases specifically addressed claims that Congress intended to create a private cause of action under the federal statute itself, see infra Part III.B., in doing so, the courts also discussed the question of whether the appropriations statutes created federally enforceable private" } ]

[ { "docid": "22749630", "title": "", "text": "incarcerated allegedly to make him a pauper again, found him a pauper, and appointed a different attorney, Gary Hutton, who also represented Yohey on direct appeal. Prior to Yohey’s trial, article 26.05 was amended and, eleven days before trial, the trial court did grant appointment of a psychiatric expert. Yohey, 801 S.W.2d at 238, 241-42. Yohey has filed this appeal pro se. He requests, in part, the adoption of previously filed legal and factual arguments in his objections to the magistrate judge’s report and in various state court pleadings. He specifically states that he will not repeat such claims. Yohey has abandoned these arguments by failing to argue them in the body of his brief. “Fed.R.App.P. 28(a)(4) requires that the appellant’s argument contain the reasons he deserves the requested relief ‘with citation to the authorities, statutes and parts of the record relied on.’ ” Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir.), cert. denied, 498 U.S. 966, 111 S.Ct. 427, 112 L.Ed.2d 411 (1990) (citations omitted). “Although we liberally construe the briefs of pro se appellants, we also require that arguments must be briefed to be preserved.” Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir.1988) (citations omitted). Also, Yohey’s incorporation of arguments from other pleadings would lengthen a brief already at the 50-page limit. See Fed.R.App.P. 28(g). Therefore, only the issues presented and argued in the brief are addressed. Additionally, Yohey’s pro se brief is convoluted at best. The issues discussed below on the merits are ones determined to have been preserved and argued on appeal. After a diligent comparison of Yohey’s brief with the district court record, several issues have been deemed as 1) new claims, that either were not presented to the district court or were presented in a totally different context in his petition, or 2) abandoned claims because they are raised for the first time in Yohey’s reply brief. NEW CLAIMS RAISED IN INITIAL APPELLATE BRIEF The issues below are claims raised on appeal, but Yohey did not argue them in district court. As a general rule, this Court does not review" }, { "docid": "19027579", "title": "", "text": "established that the district court erred in denying relief on his Fourth Amendment claim. 4. Ex Post Facto Claim Morris next contends that the health care services fee violates his right to be free from ex post facto punishments. He concedes that his claim is foreclosed by Supreme Court precedent, though he seeks to preserve his claim for review by the Supreme Court. Morris does not articulate any argument for why § 501.063 constitutes an ex post facto punishment, nor does he cite any authority for his position. We conclude that Morris has waived this argument. See, e.g., Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993) (“Although we liberally construe the briefs of pro se appellants, we also require that arguments must be briefed to be preserved.” (quoting Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir.1988))); Sylvester v. Cain, 311 Fed.Appx. 733, 735 (5th Cir.2009) (per curiam) (unpublished) (“[Although pro se briefs are afforded liberal construction, even pro se litigants must brief arguments in order to preserve them. [Defendant] may not incorporate by reference the arguments that he made in his district court pleadings.” (internal citations omitted)). C. Miscellaneous Claims Morris also argues that: (1) there are constitutional inadequacies in the prison library; (2) § 501.068 violates the Bill of Attainder Clause; and (3) the district court discriminated against him on the basis of his IFP status when it warned him not to file additional frivolous complaints. We find each of these arguments waived because Morris failed to raise it below. See XL Specialty Ins. Co. v. Kiewit Offshore Servs., Ltd., 513 F.3d 146, 153 (5th Cir.2008) (“An argument not raised before the district court cannot be asserted for the first time on appeal.”). IV. CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED. . Section 501.063 provides, in its entirety: (a)(1) An inmate confined in a facility operated by or under contract with the department, other than a halfway house, who initiates a visit to a health care provider shall pay a health care services fee to the department in the" }, { "docid": "12332360", "title": "", "text": "F.3d 336, 343 (5th Cir.1998). Denying Smith’s motion was not an abuse of discretion because the proposed supplemental claims against Tillman were not related to the original cause of action, and the inclusion of those claims would have unduly complicated and prolonged an already complicated case. See id,.; Lewis v. Knutson, 699 F.2d 230, 239 (5th Cir.1983). Smith also challenges a pretrial order that he maintains was confusing and caused him to label his objection to the defendants’ motion for summary judgment as also being a cross-motion for summary judgment. Although this court liberally construes pro se briefs, even pro se litigants must brief arguments to preserve them. Yohey, 985 F.2d at 225. Smith does not provide a record citation for the order he challenges; neither does he cite any law or standard of review that would be applicable to such a challenge. By failing to brief this issue adequately, Smith has effectively abandoned it. See id. at 224-25. Referencing the time he spent in administrative segregation and in Camp J, an extended lockdown camp, Smith challenges the district court’s ruling that he did not allege that he had suffered any actual injury. “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correction facility, for mental or emotional injury while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). As Smith did not allege any physical injury stemming from his confinement in administrative segregation or in Camp J, the district court did not err in dismissing Smith’s claims that he was confined to a cell with inadequate sunlight and fresh air pursuant to Rule 12(b)(6). Smith maintains that he stated a valid claim that all of the defendants had conspired to retaliate against him. A conspiracy claim requires showings that an actual violation of § 1983 occurred and that the defendants agreed to commit an illegal act. See Hale v. Townley, 45 F.3d 914, 920 (5th Cir.1995); Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir.1982). As no § 1983 violation was established, Smith’s claim of civil conspiracy" }, { "docid": "12332359", "title": "", "text": "Darbonne as an independent claim of verbal abuse. Finding that such verbal abuse did not rise to the level of a constitutional violation, the district court dismissed the claim pursuant to Rule 12(b)(6). Smith does not challenge this assessment of his verbal-abuse claim, and he has abandoned the issue on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.1987). Other Issues Without providing any citation to the record, Smith asserts that the magistrate judge erred when she denied him leave to amend his complaint to add retaliation and civil conspiracy claims against Todd Barrere, David Voorhies, Captain Stammreich, and James Tillman. Smith filed numerous motions to amend and supplement his complaint, with mixed results. The unsuccessful motion that comes closest to being that described by Smith in his appellate brief is one in which Smith sought to add new claims against Tillman. Unlike motions to amend, motions to supplement need not be freely granted. See Burns v. Exxon Corp., 158 F.3d 336, 343 (5th Cir.1998). Denying Smith’s motion was not an abuse of discretion because the proposed supplemental claims against Tillman were not related to the original cause of action, and the inclusion of those claims would have unduly complicated and prolonged an already complicated case. See id,.; Lewis v. Knutson, 699 F.2d 230, 239 (5th Cir.1983). Smith also challenges a pretrial order that he maintains was confusing and caused him to label his objection to the defendants’ motion for summary judgment as also being a cross-motion for summary judgment. Although this court liberally construes pro se briefs, even pro se litigants must brief arguments to preserve them. Yohey, 985 F.2d at 225. Smith does not provide a record citation for the order he challenges; neither does he cite any law or standard of review that would be applicable to such a challenge. By failing to brief this issue adequately, Smith has effectively abandoned it. See id. at 224-25. Referencing the time he spent in administrative segregation and in Camp J, an extended lockdown camp," }, { "docid": "21671352", "title": "", "text": "evidence to that effect. Most notably, Garry's brother and business partner (Karry) said there is \"[n]o question [Garry] is aware of [this lawsuit]”. . Karry also alleges the bankruptcy court’s discharge of the Norrises extinguished their cause of action under the agreement. His failure to raise this issue below waives it. . Garry’s only claim to attorneys' fees and costs depends on him winning his Rule 60(b) motion on remand. In the event that happens, the court can at that time consider his entitlement to fees. And Karry’s request for fees was contingent on him prevailing on his arguments we have already rejected, . Karry styles the header in his brief challenging the attorneys’ fees award as, \"The district court erred by ruling that [he] is soli-darily liable for all of the Norrises’ costs and attorney fees.” But the arguments he advances and the cases he cites all speak to the award being either excessive or unreasonable. Because he neither advances an argument challenging the district court’s imposition of solidary liability on fees nor offers case law in support of it, we hold that he forfeited any such claim. Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir. 1990) (noting that a failure to adequately brief an issue constitutes abandonment); Fed. R. App. P. 28(a)(8)(A) (requiring appellant’s argument to contain \"appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which appellant relies”). . The posttrial work responding to Garry’s Rule 60(b) motion was not included in the fee award. As for the amounts spent attempting to serve Garry ahead of trial, Karry's appeal does not challenge any failure to segregate fees. Rather, it focuses on the fee amount being disproportionate to the damages recovered. That implicates only the question whether the district court abused its discretion in concluding the amount was reasonable. HDRE Bus. Partners Ltd. Group, LLC v. RARE Hosp. Int’l, Inc., 834 F.3d 537, 539-40 (5th Cir. 2016)." }, { "docid": "23214757", "title": "", "text": "U.S.C. § 1915(e)(2)(B)© is reviewed for abuse of discretion. E.g., Harper v. Showers, 174 F.3d 716, 718 & n. 3 (5th Cir.1999) (citations omitted). On the other hand, dismissals under 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A, and 42 U.S.C. 1997e(c)(l) are reviewed de novo. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.1998); Black v. Warren, 134 F.3d 732, 733-34 (5th Cir.1998). Because the district court referred to all of these statutes in dismissing Longoria’s action, the issues at hand are reviewed de novo. See Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir.2003). A. Longoria fails to contend defendants violated his rights under the Free Exercise Clause of the First Amendment. His brief provides only cursory reference to the First Amendment in the “Statement of Subject Matter Jurisdiction” and in the “Statement of the Proceedings”, and these references merely refer to what he alleged in district court. Although we liberally construe pro se briefs, such litigants must still brief contentions in order to preserve them. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993). This court “will not raise and discuss legal issues that [Longoria] has failed to assert”. Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.1987) (citations omitted). Therefore, Longoria has abandoned any First Amendment claim. (In any event, our court has held the grooming policy challenged by Longoria not violative of the Free Exercise Clause. See Green v. Polunsky, 229 F.3d 486, 489-91 (5th Cir.2000) (applying Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)); see also Taylor v. Johnson, 257 F.3d 470, 472 (5th Cir.2001) (per curiam).) B. As noted, Longoria maintains the district court erred in dismissing his claims under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-l(a). RLUIPA is not cited in Longoria’s prisoner form complaint, which alleged a general violation of his “freedom to exercise [his] religious tenets in conformity with [his] religion” and his “right to practice [his] religion as a Mexica Nahua Native American”. Complicating matters, the recording for Longoria’s Spears hearing is inaudible. Such" }, { "docid": "13200811", "title": "", "text": "93, 96 (5th Cir.1991) (“[a]n age discrimination plaintiffs own good faith belief that his age motivated his employer’s action is of little value”); Hornsby v. Conoco, Inc., 777 F.2d 243, 246 (5th Cir.1985) (“[w]e cannot allow subjective belief to be the basis for judicial relief when an adequate nondiscriminatory reason for the discharge has been presented”); Elliott v. Group Medical & Surgical Serv., 714 F.2d 556, 566 (5th Cir.1983) (“generalized testimony by an employee regarding his subjective belief that his discharge was the result of age discrimination is insufficient to make an issue for the jury in the face of proof showing an adequate, nondiscriminatory reason for his discharge”), cert. denied, 467 U.S. 1215, 104 S.Ct. 2658, 81 L.Ed.2d 364 (1984). III. For the foregoing reasons, the summary judgment is AFFIRMED. . Douglass’ brief states incorrectly that he asserted a claim under the Consolidated Omnibus Budget Reconciliation Act (COBRA). His complaint, however, alleged only violations of the ADEA. In any event, he does not press a COBRA issue. . The order provided that copies of the depositions would be returned to USAA after the magistrate judge’s inspection, so copies of the complete depositions are not in the record. As noted, USAA submitted excerpts of the depositions with its reply to Douglass’ response to the summary judgment motion. . The record contains no ruling on Douglass' continuance request. . The statement of facts and argument sections of Douglass' brief contain no citations to the record, contrary to Fed.R.App.P. 28(a)(4), (6). Although we liberally construe briefs filed by pro se litigants, we still require them to comply with the Federal Rules of Appellate Procedure. See, e.g., Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993). Douglass is cautioned that disregard for the rules of appellate procedure may result in dismissal. See 5th Cir.Loc.R. 42.2; Moore v. FDIC, 993 F.2d 106, 107 (5th Cir.1993) (dismissing appeal for failure to comply with appellate rules). . In addition to the Fourth and Sixth Circuits, four other circuits apply the appellate waiver rule not only to findings of fact, but also to conclusions of law. See" }, { "docid": "22749629", "title": "", "text": "taking the .22 caliber pistol from her and then shooting her with it after shooting at her with his nine-millimeter gun. He related that at one point he gathered the shells and the two guns and left in his truck; that he returned shortly thereafter, scattered the shells in the bedroom, and placed the .22 caliber pistol in Gooch’s hand. Yohey’s host of alleged errors are better understood in light of his interpretation of the state trial court’s determination to have him convicted. Yohey was originally represented by appointed counsel Robert Will-mann, who moved for extensive expert witness fees. The trial court denied that motion, citing in part Tex. Code Crim.P. art. 26.05, which limited such fees to $500. Willmann filed a mandamus petition with the Texas Court of Criminal Appeals on this matter, and another on other discovery issues. While those petitions were pending, the state moved to decertify Yohey’s pauper status, the trial judge granted the motion, and Willmann was relieved of his appointment. At some later point, the trial judge ordered Yohey incarcerated allegedly to make him a pauper again, found him a pauper, and appointed a different attorney, Gary Hutton, who also represented Yohey on direct appeal. Prior to Yohey’s trial, article 26.05 was amended and, eleven days before trial, the trial court did grant appointment of a psychiatric expert. Yohey, 801 S.W.2d at 238, 241-42. Yohey has filed this appeal pro se. He requests, in part, the adoption of previously filed legal and factual arguments in his objections to the magistrate judge’s report and in various state court pleadings. He specifically states that he will not repeat such claims. Yohey has abandoned these arguments by failing to argue them in the body of his brief. “Fed.R.App.P. 28(a)(4) requires that the appellant’s argument contain the reasons he deserves the requested relief ‘with citation to the authorities, statutes and parts of the record relied on.’ ” Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir.), cert. denied, 498 U.S. 966, 111 S.Ct. 427, 112 L.Ed.2d 411 (1990) (citations omitted). “Although we liberally construe the briefs of pro" }, { "docid": "23609499", "title": "", "text": "refused to produce it). In addition, in Summers’s motion to reconsider the denial of his habeas corpus application and request for evidentiary hearing, Summers failed to mention this claim or the need for an evidentiary hearing to advance or resolve it. He cannot do so now. Moreover, were we to reach the merits of this claim under 28 U.S.C. § 2254(b)(2), we would deny the claim for the reasons stated by the district court. . We also do not reach the issue of whether inadmissible evidence is material for Brady purposes in light of Wood. Accord Felder, 180 F.3d at 212. . Summers also referenced a series of claims brought before the district court with respect to his sentence of death. However, Summers only briefed the solitary issue of whether or not the jury instructions allowed the jury to give effect to evidence presented in mitigation during the penalty phase of his trial. Summers abandoned his other claims by failing to brief them. See, e.g., Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (holding that appellant who sought to incorporate previously filed arguments by reference \"has abandoned these arguments by failing to argue them in the body of his brief\"). Appellants are required under Rule 28(a)(4) of the Federal Rules of Appellate Procedure to include \"the reasons he deserves the requested relief with citation to the authorities, statutes and parts of the record relied on.” Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir. 1990) (internal citations and quotations omitted); Fed. R.App. P. 28(a)(4)(B). See also Hughes, 412 F.3d at 597; Lookingbill, 293 F.3d at 263 & n. 11. . Because these instructions do not require the jury to change otherwise \"yes” answers to \"no,” they are not nullification instructions as that term is used. As a result, they do not give rise to the additional issues relating to nullification instructions discussed in Pemy II, 532 U.S. at 798-804, 121 S.Ct. 1910." }, { "docid": "23214756", "title": "", "text": "hair because his great spirit told him not to mutilate his hair. In January 2005, Longoria told prison officials, that, due to his religious beliefs, he would not cut his hair. In response to his grievance, Longoria was informed that the Chaplaincy Department could not authorize him an exemption to the grooming policy. According to Longoria, he was disciplined for violating the grooming policy, by which all inmates in the Robertson Unit are required to abide. The district court granted Longoria leave to proceed in forma pauperis, and a magistrate judge conducted the Spears hearing. Without requiring defendants to answer, the district court dismissed Lon-goria’s claim as frivolous and for failure to state a claim, citing 28 U.S.C. §§ 1915 (governing proceedings in forma pauper-is), 1915A (governing screening of prisoner complaints against governmental entities), and 42 U.S.C. § 1997e(c) (governing dismissal of frivolous actions by prisoners). The district court granted Longoria permission to proceed in forma pauperis on appeal, which he pursues pro se. II. The dismissal of a complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)© is reviewed for abuse of discretion. E.g., Harper v. Showers, 174 F.3d 716, 718 & n. 3 (5th Cir.1999) (citations omitted). On the other hand, dismissals under 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A, and 42 U.S.C. 1997e(c)(l) are reviewed de novo. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.1998); Black v. Warren, 134 F.3d 732, 733-34 (5th Cir.1998). Because the district court referred to all of these statutes in dismissing Longoria’s action, the issues at hand are reviewed de novo. See Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir.2003). A. Longoria fails to contend defendants violated his rights under the Free Exercise Clause of the First Amendment. His brief provides only cursory reference to the First Amendment in the “Statement of Subject Matter Jurisdiction” and in the “Statement of the Proceedings”, and these references merely refer to what he alleged in district court. Although we liberally construe pro se briefs, such litigants must still brief contentions in order to preserve them. See Yohey v. Collins, 985 F.2d 222, 224-25" }, { "docid": "1283358", "title": "", "text": "the tort. It is undoubtedly for this reason that the court specifically found not only that Mr. Rippy was aware of the sexual harassment, but also that the sexual harassment was \"extreme and outrageous [and] caused plaintiff severe emotional distress.” EMILIO M. GARZA, Circuit Judge, concurring in part and dissenting in part: The majority imposes liability based on its holding that “applying [the] facts to Texas’ definition of ratification clearly reveals that Mr. Rippy ratified Mr. Baugh’s infliction of emotional distress upon Mrs. Prunty.” However, Mrs. Prunty did not plead ratification. Because her pleadings did not encompass ratification, Mrs. Prunty did not intend to, nor did she, prove ratification. She did not argue ratification to the district court. See United States v. Garcia-Pillado, 898 F.2d 36, 39 (5th Cir.1990) (“We have stated that issues raised for the first time on appeal ‘are not reviewable by this court unless they involve purely legal questions and failure to consider them would result in manifest injustice.’ ” (citations omitted)). The district court did not find ratification. Nor did she preserve this issue on appeal. See Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir.1990) (Stating that appellant abandoned issue on appeal, because “Fed.R.App.Proc. 28(a)[ (5) ] requires that the appellant’s [brief] contain the reasons he deserves the requested relief “with citations to the authorities, statutes and parts of the record relied on.’ ”), cert. denied, 498 U.S. 966, 111 S.Ct. 427, 112 L.Ed.2d 411 (1990). Nonetheless, the majority reverses on the basis of ratification. Accordingly, I respectfully dissent from Part II.B. of the majority opinion. . I join the majority in their revulsion of Chuck Baugh’s conduct, which was more than adequately proven below. My disagreement with the majority opinion lies in the method by which it imposes liability; that is, by changing Mrs. Prunty's only viable appellate argument — course and scope of employment — to an appellate point that she did not contend — ratification. See maj. op. at 652 n. 8 (acknowledging that Mrs. Prunty challenges the district court's finding that Mr. Baugh had not acted within the course and" }, { "docid": "22749631", "title": "", "text": "se appellants, we also require that arguments must be briefed to be preserved.” Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir.1988) (citations omitted). Also, Yohey’s incorporation of arguments from other pleadings would lengthen a brief already at the 50-page limit. See Fed.R.App.P. 28(g). Therefore, only the issues presented and argued in the brief are addressed. Additionally, Yohey’s pro se brief is convoluted at best. The issues discussed below on the merits are ones determined to have been preserved and argued on appeal. After a diligent comparison of Yohey’s brief with the district court record, several issues have been deemed as 1) new claims, that either were not presented to the district court or were presented in a totally different context in his petition, or 2) abandoned claims because they are raised for the first time in Yohey’s reply brief. NEW CLAIMS RAISED IN INITIAL APPELLATE BRIEF The issues below are claims raised on appeal, but Yohey did not argue them in district court. As a general rule, this Court does not review issues raised for the first time on appeal. United States v. Garcia-Pillado, 898 F.2d 36, 39 (5th Cir.1990). The issues are as follows: 1) Amended Tex.Code Crim.P. art. 26.05, regarding funding of expert witnesses, should have been applied retroactively. In district court, Yohey argued Article 26.05 should have been held unconstitutional. 2) The state trial court denied Yohey access to exculpatory evidence by denying his pretrial motion to gain access to the crime scene. The only issues in his petition regarding complaints of denial of access to exculpatory evidence do not identify this motion. 3) Ineffective assistance of counsel because of no access to exculpatory evidence. Although he complains of ineffective assistance of counsel due to conflict of interest, as addressed below, this particular reason is not raised. See Barnard v. Collins, 958 F.2d 634, 643 n. 12 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 990, 122 L.Ed.2d 142 (1992). 4) The state suppressed evidence in the form of the EMS reports and tapes of Yohey’s calls to 911 and further suppressed evidence" }, { "docid": "22701704", "title": "", "text": "original complaint. Accordingly, the prison officials argue that we should dismiss Grant’s appeal for failure to comply with Rule 28(a) of the Federal Rules of Appellate Procedure. Although we liberally construe briefs of pro se litigants and apply less stringent standards to parties proceeding pro se than to parties represented by counsel, pro se parties must still brief the issues and reasonably comply with the standards of Rule 28. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994) (“[P]ro se litigants, like all other parties, must abide by the Federal Rules of Appellate. Procedure.”); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993) (“ ‘[Arguments must: be briefed to be preserved.’ ” (quoting Price, 846 F.2d at 1028)). The prison officials argue that Grant has abandoned his appeal by failing to brief any issues. This Court has considered a pro se appellant’s brief despite its technical noncompliance with the Rules of Civil Procedure when it at least argued some error on the part of the district court. See, e.g., Wilkes, 20 F.3d at 653 (considering issue even after criticizing brief for failing to cite to the record for argument that his sentence was improper because “the superseding information failed to specify the type and quantity of drug he possessed”); Price, 846 F.2d at 1028 (addressing issue even though the “only reference appellant makes to the district court’s dismissal of his lawsuit is to assert that ‘this action is not time barred’ ”); Amin, 706 F.2d at 640 n. 1 (considering brief because it “contains an assertion of trial court error”). But see Yohey, 985 F.2d at 224 (holding that plaintiff had abandoned issues because he merely “request[ed] ... the adoption of previously filed legal and factual arguments in his objections to the magistrate judge’s report and in various state court pleadings”). In this case, Grant fails to meet even this minimal requirement. Aside from the implication raised by its existence, his brief does not argue that the district court erred in any way. This Court has discretion to consider a noncompliant brief, and it has allowed pro se" }, { "docid": "22832352", "title": "", "text": "we affirm the district court’s grant of summary judgment. AFFIRMED. . Baranowski subsequently moved to dismiss Rabbi Ted Sanders as a defendant, and the motion was granted. . Baranowski's complaint also alleged violations of the Fifth and Ninth Amendments, the Americans with Disability Act, the Rehabilitation Act, and the Texas Religious Freedom Act, as well as a § 1983 retaliation claim. Baranowski has not challenged the district court's ruling on these issues, and we decline to consider these claims any further on appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993) (stating that pro se litigants must brief arguments to preserve them for appellate review). . Although Baranowski listed other inmates as additional plaintiffs, the district court concluded that Baranowski was the only plaintiff in this lawsuit. Baranowski has not challenged this ruling on appeal. . Two additional issues raised by Baranowski can be disposed of here. First, Baranowski attempts to appeal the district court's denials of his motions for temporary restraining orders, but it is well established in this circuit that the denial of an application for a temporary restraining order is not appealable. See House the Homeless, Inc. v. Widnall, 94 F.3d 176, 180 n. 8 (5th Cir.1996). Second, Bara-nowski contends in his reply brief that he has raised a claim of \"denial of due process rights to practice his Jewish faith.” However, he has done nothing more than mention this as an issue, without any reference to it in the argument section of his initial or reply brief or any citation of legal authority. We decline to consider it further on appeal. See Yohey, 985 F.2d at 224-25. . Although Baranowski contends that some inmates could not take advantage of the weekday religious study in the chapel because of work assignments, he does not claim that he was not able to do so himself. . To the extent Baranowski is raising an equal protection claim regarding the denial of kosher meals, the uncontroverted summary judgment evidence shows that the TDCJ does not serve kosher meals to any inmate. . \"Although RLUIPA bars inquiry into whether" }, { "docid": "19027578", "title": "", "text": "to a prisoner constitutes a compelling interest); Baranowski, 486 F.3d at 122 (concluding that prison’s failure to provide kosher meals was justified in part because of expense). The district court concluded that the fee increase was based on budgetary concerns, and Morris concedes the point. Moreover, we are skeptical that the assessment of the fee is a seizure given its nature as a fee charged in exchange for the provision of medical care. See, e.g., Wagner, 128 F.3d at 180 (“[T]his is not a situation in which the inmates are deprived of the benefits of their property and receive nothing in return; rather in exchange for the fees, the inmates receive the benefit of health care.... ”). Additionally, as discussed supra, adequate post-deprivation procedures are in place, should Morris’s trust fund account be charged unreasonably or erroneously. Accordingly, Morris has not shown that the taking of funds from his inmate trust fund account to pay for his medical care was unreasonable in light of the goal of controlling the prison budget. Therefore, Morris has not established that the district court erred in denying relief on his Fourth Amendment claim. 4. Ex Post Facto Claim Morris next contends that the health care services fee violates his right to be free from ex post facto punishments. He concedes that his claim is foreclosed by Supreme Court precedent, though he seeks to preserve his claim for review by the Supreme Court. Morris does not articulate any argument for why § 501.063 constitutes an ex post facto punishment, nor does he cite any authority for his position. We conclude that Morris has waived this argument. See, e.g., Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993) (“Although we liberally construe the briefs of pro se appellants, we also require that arguments must be briefed to be preserved.” (quoting Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir.1988))); Sylvester v. Cain, 311 Fed.Appx. 733, 735 (5th Cir.2009) (per curiam) (unpublished) (“[Although pro se briefs are afforded liberal construction, even pro se litigants must brief arguments in order to preserve them. [Defendant] may not" }, { "docid": "22926039", "title": "", "text": "as a result, expired before Mapes filed his complaint on January 27, 2003. Mapes’s sole argument on appeal is that the District Court erred in dismissing the false arrest claim against these defendants because his false arrest claim did not accrue until the prosecution terminated in his favor on January 25, 2002. Neither the District Court nor Mapes were correct. The “statute of limitations upon a § 1983 claim seeking damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run at the time the claimant becomes detained pursuant to legal process.” Wallace v. Kato, 549 U.S. 884, 127 S.Ct. 1091, 1100, 166 L.Ed.2d 978 (2007). To the extent that Wallace conflicts with our decision in Brandley v. Keeshan, 64 F.3d 196 (5th Cir.1995) (holding that a false arrest cause of action accrues when the criminal prosecution terminates in favor of the accused), Wallace abrogates Brandley. Mapes filed his § 1983 complaint exactly one year after the criminal prosecution terminated in his favor. The date on which Mapes became detained pursuant to legal process does not appear in the record. It is difficult to see how Mapes’s complaint could be timely because the date on which he was detained pursuant to legal process must have preceded the date on which proceedings terminated. Nevertheless, we vacate and remand to the District Court to determine the date on which Mapes was detained pursuant to legal process. Mapes briefs no argument concerning the claims that were dismissed in No. 3:04-CV-443. He also fails to brief any claim in No. 3:03-CV-67 other than his false arrest claim. Although pro se briefs are afforded liberal construction, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), even pro se litigants must brief arguments in order to preserve them. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993); Fed. R.App. P. 28(a)(9). Accordingly, Mapes’s remaining claims are effectively abandoned. Yohey, 985 F.2d at 224-25. VACATED AND REMANDED AS TO FALSE-ARREST CLAIM IN NO. 3:03-CV-67; AFFIRMED AS TO ALL OTHER" }, { "docid": "1283359", "title": "", "text": "she preserve this issue on appeal. See Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir.1990) (Stating that appellant abandoned issue on appeal, because “Fed.R.App.Proc. 28(a)[ (5) ] requires that the appellant’s [brief] contain the reasons he deserves the requested relief “with citations to the authorities, statutes and parts of the record relied on.’ ”), cert. denied, 498 U.S. 966, 111 S.Ct. 427, 112 L.Ed.2d 411 (1990). Nonetheless, the majority reverses on the basis of ratification. Accordingly, I respectfully dissent from Part II.B. of the majority opinion. . I join the majority in their revulsion of Chuck Baugh’s conduct, which was more than adequately proven below. My disagreement with the majority opinion lies in the method by which it imposes liability; that is, by changing Mrs. Prunty's only viable appellate argument — course and scope of employment — to an appellate point that she did not contend — ratification. See maj. op. at 652 n. 8 (acknowledging that Mrs. Prunty challenges the district court's finding that Mr. Baugh had not acted within the course and scope of employment, but disposing of the case on other issues). . Mrs. Prunty’s claim that Arkansas should have investigated and determined the cause of the problems between her and Mr. Baugh is the closest that Prunty comes to making a ratification argument. See Record on Appeal, vol. 1, at 5 (Plaintiff's Original Petition) (\"Arkansas Freight Way failed to take any corrective action after they were notified of the Plaintiff's complaint.”); Brief for Prunty at 19 (Prunty \"made repeated complaints as to Chuck Baugh's [conduct] but Arkansas turned a deaf ear.... [A]ny reasonable employer would investigate to determine what is the cause of the problems.”). Prunty’s contention that Arkansas breached its duty to investigate her complaints is better characterized as a claim of negligence, rather than ratification. \"Ratification\" is the adoption, confirmation or failure to repudiate prior unlawful acts which were not legally binding at a time when the [defendant] had the right and knowledge of facts necessary to repudiate such conduct; but which, by ratification or by the failure to repudiate, become the acts" }, { "docid": "17837444", "title": "", "text": "Cir.2004) (recognizing that the majority of circuits have held that remand orders are final under § 1291). Thus, we are comfortable in holding that we have jurisdiction to review the Haases’ appeal of the judgment granting Bank of America, N.A. and Deutsche Bank summary judgment on the Haases’ RESPA claim, dismissing all state claims against Morgan Stanley and Barrett Daf-fin, and denying the Hasses’ motion to compel and motion for sanctions. III. As we begin our review, we are mindful that “we liberally construe briefs of pro se litigants and apply less stringent standards to parties proceeding pro se than parties represented by counsel.” Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.1995). This principle, however, does not give the Haases a pass on compliance with Rule 28 relating to their appellate brief. See Fed. R.App. P. 28. Their “arguments must be briefed to be preserved.” Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993) (internal quotation marks and citation omitted). We will attempt to address the issues where the Haases have at “least argued some error on the part of the district court.” Grant, 59 F.3d at 524-25 (emphasis in original). Admittedly, this can be a cumbersome exercise if the arguments are ill-defined. The Haases have raised multiple issues on appeal. First, they appeal the district court’s partial summary judgment on the RESPA claim in favor of Bank of America, N.A. and Deutsche Bank. Second, they argue that the district court erred by dismissing their state-law claims against Morgan Stanley and Barrett Daffin. Third, the Haases argue that the magistrate judge abused her discretion by denying both their motion for sanctions under Rule 11 and their motion to compel document discovery. And finally, they contend that the district court infringed upon their Seventh Amendment right to a trial by jury by granting two of the defendants’ motions to dismiss. IV. We review actions on summary judgment de novo applying the same standard as the district court did. Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d 396, 400 (5th Cir.2013). We first examine the Haases’ argument that the" }, { "docid": "22701703", "title": "", "text": "PER CURIAM: Robert Grant, an inmate proceeding pro se and in forma pauperis, appeals the district court’s dismissal, under 28 U.S.C. § 1915(d) (1988), of his civil rights suit against several prison officials. We dismiss for want of prosecution. Grant filed an excessive force claim under 42 U.S.C. § 1983 (1988) against several prison officials, alleging that they had violated his First and Eighth Amendment rights. He alleged that a prison official had struck him repeatedly with a metal bar and that two other officials had watched without intervening. Grant had objected to the condition of a meal tray he had received, and he claims that the prison official had physically assaulted and verbally abused him when he motioned to summon a supervisor. At the time of this incident, Grant was assigned to a segregation cell for having assaulted a prison official. After conducting a Spears hearing, the district court dismissed Grant’s claims as frivolous. Grant filed a timely appeal. Grant’s appellate brief does little more than restate the relevant factual events leading to his original complaint. Accordingly, the prison officials argue that we should dismiss Grant’s appeal for failure to comply with Rule 28(a) of the Federal Rules of Appellate Procedure. Although we liberally construe briefs of pro se litigants and apply less stringent standards to parties proceeding pro se than to parties represented by counsel, pro se parties must still brief the issues and reasonably comply with the standards of Rule 28. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.1994) (“[P]ro se litigants, like all other parties, must abide by the Federal Rules of Appellate. Procedure.”); Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993) (“ ‘[Arguments must: be briefed to be preserved.’ ” (quoting Price, 846 F.2d at 1028)). The prison officials argue that Grant has abandoned his appeal by failing to brief any issues. This Court has considered a pro se appellant’s brief despite its technical noncompliance with the Rules of Civil Procedure when it at least argued some error on the part of the district court. See, e.g., Wilkes, 20 F.3d at" }, { "docid": "17837443", "title": "", "text": "traditional definition of finality[,]” Quackenbush, 517 U.S. at 715, 116 S.Ct. 1712 (emphasis added). The Supreme Court nevertheless concluded that remand orders are “appealable” final judgments because as a practical matter, remands end federal litigation and leave the district court with nothing else to do. Id. All other circuits presented with this question have applied Quackenbush in this manner and are in unanimous agreement. Lively v. Wild Oats Markets, Inc., 456 F.3d 933, 938 n. 7 (9th Cir.2006) (holding that the entry of a remand order had the force of a final order); Porter v. Williams, 436 F.3d 917, 920 (8th Cir.2006) (holding that a remand of state law claims, “after the federal claims are resolved[,]” makes disposition of matters preceding remand “final order[s]” because there is nothing left for the district court to resolve); Ariel Land Owners, Inc. v. Bring, 351 F.3d 611, 613 (3d Cir.2003) (holding that a district court’s dismissal of claims preceding its remand was a “final decision” under § 1291); In re Stone Container Corp., 360 F.3d 1216, 1218-19 (10th Cir.2004) (recognizing that the majority of circuits have held that remand orders are final under § 1291). Thus, we are comfortable in holding that we have jurisdiction to review the Haases’ appeal of the judgment granting Bank of America, N.A. and Deutsche Bank summary judgment on the Haases’ RESPA claim, dismissing all state claims against Morgan Stanley and Barrett Daf-fin, and denying the Hasses’ motion to compel and motion for sanctions. III. As we begin our review, we are mindful that “we liberally construe briefs of pro se litigants and apply less stringent standards to parties proceeding pro se than parties represented by counsel.” Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir.1995). This principle, however, does not give the Haases a pass on compliance with Rule 28 relating to their appellate brief. See Fed. R.App. P. 28. Their “arguments must be briefed to be preserved.” Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.1993) (internal quotation marks and citation omitted). We will attempt to address the issues where the Haases have at “least argued" } ]

[ { "docid": "23215871", "title": "", "text": "CYNTHIA HOLCOMB HALL, Circuit Judge: The class-action plaintiffs in the securities litigation involving Software Toolworks, Inc. appeal the district court’s partial summary judgment in favor of defendant auditors De-loitte & Touche (“Auditors”) and defendant underwriters Montgomery Securities and PaineWebber, Inc. (“Underwriters”). Because the plaintiffs failed to obtain Rule 54(b) certification to appeal the district court’s nonfinal order, we dismiss for lack of jurisdiction. I. In October 1990, the plaintiffs filed a class action against the Auditors and Underwriters for alleged violations of federal securities laws. In March 1992, the district court granted summary judgment in favor of the Underwriters on all claims and in favor of the Auditors on every claim other than one cause of action under § 11 of the Securities Act of 1933. See In re Software Toolworks, Inc. Sec. Litigation, 789 F.Supp. 1489 (N.D.Cal.1992). Following this partial summary judgment order, the plaintiffs stipulated with the Auditors to dismiss the remaining § 11 claim on the following terms: 1. Plaintiffs agree to dismiss their remaining claim against Deloitte under Section 11 of the Securities Act of 1933 without prejudice. 2. Upon the dismissal of their Section 11 claim against Deloitte, plaintiffs may appeal the court’s [partial summary judgment] Order.... In the event that any portion of the Order which grants Deloitte summary judgment on plaintiffs’ [other] claims ... is reversed on appeal, plaintiffs may refile any portion of their Section 11 claim as to which summary adjudication has not been entered in Deloitte’s favor, or as to which summary adjudication in De-loitte’s favor has been reversed, within 30 days of the date such reversing decision becomes final, without objection from De-loitte. Deloitte waives any statute of limitations or other time-related defense to plaintiffs refiling their Section 11 claim within such 30-day period. In the event that the partial summary judgment on plaintiffs’ [other] claims against Deloitte is affirmed in its entirety by the Ninth Circuit or Supreme Court decision, plaintiffs’ Section 11 claim against Deloitte shall be deemed dismissed with prejudice as of the date such decision becomes final. The district court approved the stipulation and the" } ]

[ { "docid": "23020204", "title": "", "text": "decline to address Weeden’s due diligence defense. III. Kaplan’s § 10(b) claims Kaplan alleges that Medstone violated § 10(b) by making six post-prospectus statements, Statements 4-9, in Medstone’s press releases, the Annual Report for 1988, and a research report prepared by Weeden. He also alleges that Statements 1-3 in the prospectus violated § 10(b). Section 10(b) of the Securities Exchange Act of 1934 makes it unlawful to use any “manipulative or deceptive device” in connection with the purchase or sale of any security. 15 U.S.C. § 78j(b) (1988). Rule 10b-5, a regulation issued under § 10(b), makes it unlawful “[t]o make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in light of all the circumstances under which they were made, not misleading.” 17 C.F.R. § 240.10b-5(b). A projection or statement of belief is a “factual” misstatement actionable under § 10(b) if (1) the statement is not actually believed, (2) there is no reasonable basis for the belief, or (3) the speaker is aware of undisclosed facts tending seriously to undermine the statement’s accuracy. In re Wells Fargo Sec. Litig., 12 F.3d 922, 930 (9th Cir.1993), cert. denied, — U.S. —, 115 S.Ct. 295, 130 L.Ed.2d 209 (1994); In re Apple Computer Sec. Litig., 886 F.2d 1109, 1113 (9th Cir.1989), cert. denied, 496 U.S. 943, 110 S.Ct. 3229, 110 L.Ed.2d 676 (1990). A plaintiff under § 10(b) must show reliance on the material misstatement, and scienter (an intent to defraud or deceive). See Hanon v. Dataproducts Corp., 976 F.2d 497, 506-07 (9th Cir.1992). In a securities fraud action, “[m]ateriality and scienter are both fact-specific issues which should ordinarily be left to the. trier of fact,” although “summary judgment may be granted in appropriate cases.” Apple, 886 F.2d at 1113. To survive summary judgment, a- plaintiff in a securities fraud suit must show a genuine issue of material fact regarding a particular statement or statements by the defendant company or its insiders. Id. at 1118. A. PosL-Prospectus Statements Statements 4-9 contain optimistic pronouncements regarding Medstone’s clinical trials" }, { "docid": "22877792", "title": "", "text": "appeal of the issue. E.g., Officers For Justice v. Civil Serv. Comm’n, 979 F.2d 721, 726 (9th Cir.1992) (“We will not ordinarily consider matters on appeal that are not specifically and distinctly raised and argued in appellant’s opening brief.”) (quotation omitted), cert. denied, — U.S. —, 113 S.Ct. 1645, 123 L.Ed.2d 267 (1993). We therefore affirm the district court’s summary judgment in favor of Smith Barney on the section 12(2) claim. IV. Finally, the plaintiffs asserted claims against all defendants under section 10(b) and Rule 10b-5 of the 1934 Act, which provide liability for deceptive conduct in connection with the sale of securities. See 15 U.S.C. § 78j(b); 17 C.F.R. § 240.10b-5. To establish section 10(b) liability, the plaintiffs must show that the defendants acted with scienter, “a mental state embracing intent to deceive, manipulate, or defraud.” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 194 n. 12, 96 S.Ct. 1375, 1381 n. 12, 47 L.Ed.2d 668 (1976); see Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1569-70 (9th Cir.1990) (en banc) (holding that recklessness constitutes scienter under section 10(b)), cert. denied, 499 U.S. 976, 111 S.Ct. 1621, 113 L.Ed.2d 719 (1991). A. The district court held that the plaintiffs had no section 10(b) claims based on the textual part of the prospectus because, “as a matter of law, there are no misleading statements in, or material omissions from, the Debenture Prospectus, aside from possible errors by Deloitte in the 1987 financial statements.” WOW, 814 F.Supp. at 869. Because the standard of materiality is the same under section 10(b) as it is under section 11, e.g., VeriFone, 11 F.3d at 868-69, we affirm this conclusion for the reasons stated above. B. The plaintiffs, however, also asserted section 10(b) claims based “on alleged fraudulent conduct by [some] defendants other than the [textual part of the] prospectuses.” WOW, 814 F.Supp. at 869. The district court held that summary judgment was appropriate for all defendants on these claims because the plaintiffs could not establish scien-ter. 1. With regard to the Officers, the court concluded as follows: ... Plaintiffs allege in conclusory fashion that" }, { "docid": "22145260", "title": "", "text": "the district court abused its discretion in denying plaintiffs’ motion for reconsideration that was based on allegedly newly discovered evidence. In their motion, plaintiffs submitted a declaration of a MIPS ex-employee. It appears, however, that plaintiffs learned about this employee well before plaintiffs filed their opposition. In these circumstances, we cannot say that the district court abused its discretion in denying plaintiffs’ motion for reconsideration. II. The Merits To prevail on their securities fraud claims under section 10(b) and Rule 10b-5, plaintiffs must prove: (1) that defendants made a false statement or failed to disclose information that rendered another statement misleading; (2) that such statement or omission was material; (3) that plaintiffs relied on the statement or omission; and (4) that defendants acted with scienter or an intent to defraud. Monroe v. Hughes, 31 F.3d 772, 776 (9th Cir.1994); In re Apple Computer Securities Litigation, 886 F.2d 1109, 1113 (9th Cir.1989), cert. denied, 496 U.S. 943, 110 S.Ct. 3229, 110 L.Ed.2d 676 (1990). A. The Alleged False and Misleading Statements In a securities fraud case, summary judgment is improper if a plaintiff “shows a genuine issue of fact with regard to a particular statement by the company or its insiders.” In re Worlds of Wonder Securities Litigation (“WOW”), 35 F.3d 1407, 1412 (9th Cir.1994) (quotations and citations omitted), cert. denied, — U.S. -, 116 S.Ct. 185, 133 L.Ed.2d 123 (1995) and — U.S. -, 116 S.Ct. 277, 133 L.Ed.2d 197 (1995). As we have explained, “[liability depend[s] on the plaintiffs’ success in demonstrating that one of the statements made by the company was actually false or misleading.” In Re Convergent Technologies Securities Litigation, 948 F.2d 507, 512 (9th Cir.1991). Thus, to determine whether summary judgment was proper in this case, we must examine each false or misleading statement allegedly made by defendants. 1. Defendant’s Income Recognition Practices Plaintiffs allege that during the class period in question defendants made false statements in MIPS’ quarterly income statements when they recognized revenue before it was earned. According to plaintiffs, under Generally Accepted Accounting Principles (GAAP) and MIPS’ own policies, defendants could not recognize" }, { "docid": "3490778", "title": "", "text": "and (2) Plaintiffs vs. Deloitte. Relevant factual and evidentiary information will be incorporated and discussed as pertinent to each motion. PLAINTIFFS VS. UNDERWRITERS Plaintiffs seek partial summary judgment against the Underwriters as to liability on Plaintiffs’ Section 11 and 12(2) claims. The Underwriters seek summary judgment on all claims against them — i.e., Plaintiffs’ Section 11, 12(2) and 10(b) claims against them. Summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). A dispute about a material fact is “genuine,” “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In order for Plaintiffs to attain summary judgment they must establish that summary judgment is appropriate as to every element of their securities claims. If the Underwriters can raise a genuine factual dispute as to any element — falsity, materiality, etc. — then the Plaintiffs’ motion must be denied. Id. By contrast, the Underwriters can obtain summary judgment by defeating any one of those elements. Since defeating any one element will not only afford summary judgment to the Underwriters, but will also necessarily decide Plaintiffs’ motion, the Court will first address the Underwriters’ motion. I. Underwriters’ Motion for Summary Judgment The Underwriters seek summary judgment on Plaintiffs’ Section 11, 12(2) and 10(b) claims against them. According to the Underwriters, the evidence in the record indisputably demonstrates that their investigation in relation with the Registration Statement and Prospectus (“Prospectus”) for Toolworks’ July 1990 public offering (“Offering”) satisfied the due diligence standard, and therefore exempts them from Section 11 or 12(2) liability. The Underwriters further claim that they are entitled to summary judgment on the Section 10(b) claims because Plaintiffs cannot prove the necessary scienter to establish primary or secondary liability under Section 10(b). Plaintiffs respond that the" }, { "docid": "3490792", "title": "", "text": "and counsel that, although preliminary results were not available, the results for the June quarter appeared to be satisfactory and consistent with expectations. Toolworks’ counsel further represented to the SEC that the results for the quarter would be satisfactory. The Underwriters reasonably relied on such representations, particularly on the representations by the issuer and its counsel to the SEC. See Feit, 332 F.Supp. at 583. c. Description of the OEM Business The description of Toolworks’ OEM business in the Prospectus was “ex-pertised” by Deloitte. Underwriters may reasonably rely on expertised financial statements. 15 U.S.C. § 77k(b)(3)(C); see In re Gap Stores Securities Litigation, 79 F.R.D. 283, 297-98 (N.D.Cal.1978); Escott, 283 F.Supp. at 687-97. Given the complexity of the accounting issues, the Underwriters were entitled to rely on Deloitte’s expertise. The Underwriters, however, did not solely rely on Deloitte. They reviewed confirmations from each OEM, demanded a reconfirmation from Hyosung, and confirmed Toolworks’ OEM revenue recognition policy with other accounting firms. Their investigation of the OEM business was reasonable. As a result of the overall investigation and due diligence, the Underwriters reasonably believed the accuracy of the information contained in the Prospectus. They had no knowledge of any misrepresentation or omission, nor had they reason to disbelieve any of the representations made to them. The Prospectus in fact reflects that where serious risks were unveiled or suspected, warnings were issued. This Court therefore finds that the Underwriters conducted a reasonable investigation under the circumstances and are accordingly entitled to a due diligence defense. Summary judgment is therefore GRANTED in favor of the Underwriters with respect to Plaintiffs’ Section 11 and 12(2) claims. B. Section 10(b) Claims 1. Primary Liability Section 10(b) liability requires a showing of scienter — a mental state embracing intent to deceive, manipulate, or defraud. Hollinger v. Titan Capital Corp., 914 F.2d 1564, 1568 (9th Cir.1990), cert. denied, — U.S. —, 111 S.Ct. 1621, 113 L.Ed.2d 719 (1991). Scienter may be satisfied either by proof of actual knowledge or by proof of recklessness. Id. at 1568-69. The reckless conduct necessary to satisfy the scienter requirement is conduct “involving" }, { "docid": "3490833", "title": "", "text": "and similar documents. . Toys R Us also informed John Weiss, the Montgomery analyst who followed Toolworks, in early July that Nintendo cartridge and hardware sales were increasing. . Walmart, in fact, never returned any undamaged games. . The Prospectus sets out several risk factors such as warning of the Company's dependence on Nintendo, \"the general seasonal nature of the consumer software industry,” potential retail oversupply of cartridges, \"no assurance that the Company will not be subject to product returns in the future,” as well as \"no assurance that the Company’s recently introduced or planned products will achieve market acceptance.” Prospectus at 6-8, 26. These warnings, along with many others in the Prospectus, may, by themselves, entitle the Underwriters to summary judgment. See In re Convergent Technologies Securities Litigation, 948 F.2d 507, 515-16 (9th Cir.1991); I. Meyer Pincus & Assocs., P.C. v. Oppenheimer & Co., 936 F.2d 759, 763 (2d Cir.1991). .Toolworks, Deloitte and Toolworks’ counsel later stated that the cartridges had arrived on time and had been shipped to customers. . The Underwriters also properly relied on the statements to the SEC by Toolworks’ counsel concerning the basis for the OEM revenue recognition. See Feit, 332 F.Supp. at 583. . See supra note 11. . Plaintiffs' contention that had the Underwriters done more, they would have revealed problems, is not persuasive. The Court cannot evaluate an underwriter’s due diligence defense with the benefit of hindsight. The overall investigation performed here was reasonable under the circumstances at the time of the investigation. .Plaintiffs' motion for partial summary judgment against the Underwriters as to liability on Plaintiffs’ Section 11 and 12(2) claims is necessarily DENIED. . Plaintiffs offer no motive for the Underwriters to participate in the alleged fraud, except to point to the fees that they earned from the Offering. This Court has previously stated that an allegation that professionals committed fraud in order to obtain professional fees is not a persuasive motive to establish scienter. June 18, 1991 Order at 8-10, 1991 WL 319033. In fact, the risk of monumental damages against underwriters if found liable for securities fraud" }, { "docid": "22877782", "title": "", "text": "of the defendants regarding the textual part of the Debenture Prospectus. B. As noted above, the district court recognized that the “[pjlaintiffs allege numerous errors iii the financial statements for 1987, included in the back pages of the Debenture Prospectus,” WOW, 814 F.Supp. at 864 (footnote omitted), and, as a result, decided to “eonserv[ej judicial resources by assuming arguendo that the statements are in error, because summary judgment for defendants is clearly appropriate on other grounds,” id. at 867 n. 13. We conclude that the “other grounds” on which the district court relied were sufficient to support summary judgment for all defendants except Deloitte. 1. Because the audited 1987 financial statements were “certified” by Deloitte within the meaning of section 11, every defendant other than the auditor can escape section 11 liability for the statements by establishing that they “had no reasonable ground to believe and did not believe ... that the [“exper-tised”] statements therein were untrue or that there was an omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading.” 15 U.S.C. § 77k(b)(3)(C). E.g., In re Software Toolworks, Inc. Sec. Litig., 789 F.Supp. 1489, 1498 (N.D.Cal.1992), appeal dismissed, 16 F.3d 1073 (9th Cir.1994). The district court held that all defendants had proven this “reliance” defense: ... [T]he issues are enormously complex on the question of whether Deloitte’s recognition of revenues was in accordance with the standards of the accounting profession. The parties have generated well over 100 pages of conflicting expert testimony on these issues alone. It is absurd in these circumstances for Plaintiffs to suggest that the other defendants, who are not accountants, possibly could have known of any mistake by Deloitte. Therefore, even if there are errors in the financial statements, no defendant except Deloitte can be liable under section 11 on that basis. WOW, 814 F.Supp. at 863-64. We agree. The plaintiffs contend that the Officers, the Directors, and Smith Barney cannot invoke section ll’s reliance defense because they “not only knew of the transactions which caused WOW’S audited financial statements to be [allegedly]" }, { "docid": "22828959", "title": "", "text": "Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir.1998), treating the complaint’s allegations as true and drawing all reasonable inferences in the plaintiffs favor, see Fajardo v. County of Los Angeles, 179 F.3d 698, 699 (9th Cir.1999). We conduct a de novo review of the district court’s grant of summary judgment. See Morris v. Newman (In re Convergent Technologies Securities Litigation), 948 F.2d 507, 512 (9th Cir.1991). In so doing, we must be mindful that “[a]lthough materiality and scienter are both fact-specific issues which should ordinarily be left to the trier of fact, summary judgment may be granted in appropriate cases. Summary judgment may be defeated in a securities fraud derivative suit only by showing a genuine issue of fact with regard to a particular statement by the company or its insiders.” Hanon v. Dataproducts Corp., 976 F.2d 497, 500 (9th Cir.1992) (internal quotation marks and citations omitted). District court rulings made in support of a JMOL are reviewed de novo. See Saman v. Robbins, 173 F.3d 1150, 1155 (9th Cir.1999). In reviewing a JMOL, we must view'' the evidence in the light most favorable to the non-moving party and draw every reasonable inference therefrom in the non-moving party’s favor. See Amarel v. Connell, 102 F.3d 1494, 1521 (9th Cir.1996). “If conflicting inferences may be drawn from the facts, the case must go to the jury.” Pierce v. Multnomah County, 76 F.3d 1032, 1037 (9th Cir.1996) (internal quotation marks and citations omitted). Evidentiary rulings are reviewed for an abuse of discretion. See Gilbrook v. City of Westminster, 177 F.3d 839, 858 (9th Cir.1999). Finally, we review determinations of personal jurisdiction de novo. See Panavision Int’l L.P. v. Toeppen, 141 F.3d 1316, 1319-20 (9th Cir.1998). III. Discussion A. The district court erred by granting JMOL on the § 10(b) claim against Hui on the ground that he did not “make” a statement within the meaning of § 10(b) and Rule 10b-5. As the Securities and Exchange Commission (“SEC”) notes in its amicus curiae brief, the issue presented is whether a corporate official (here, the CEO) who, acting with scienter," }, { "docid": "3490827", "title": "", "text": "and (3) recognition of revenues on Toolworks’ OEM software licensing business. Section 11 requires a “reasonable” investigation by accountants. 15 U.S.C. § 77k(b)(3). This means that accountants are expected to investigate, to various degrees, facts supporting and contradicting inclusions in registration statements. They must undertake that investigation which a reasonably prudent man in that position would conduct. See Feit v. Leasco Data Processing Equipment Corp., 332 F.Supp. 544 (E.D.N.Y.1971); see also Escott v. Barckris Construction Corp., 283 F.Supp. 643, 703 (S.D.N.Y.1968) (accountants held to standards of their own profession, GAAS). If accountants establish a reasonable investigation under the circumstances of the case, they are entitled to the statutory due diligence defense. 1. Nintendo Business The Court has found that Plaintiffs have failed to offer any admissible evidence of a material misrepresentation or omission in the March 31, 1990 Financial Statements with respect to Toolworks’ Nintendo business. Plaintiffs accordingly fail to establish their burden under Celotex for a Section 11 claim. 2. Mindscape Software Plaintiffs allege two general misrepresentations in the March 31, 1990 Financial Statements with respect to Mindscape Software: (1) the improper inclusion of Minds-cape royalty advances and guarantees in revenues; and (2) the improper inclusion of obsolete Mindscape computer software in inventory, resulting in an inventory reserve which should have been higher than stated. The Court has found that Plaintiffs have failed to offer any admissible evidence of a material overstatement with respect to royalty advances and guarantees, and accordingly now finds that Plaintiffs also fail to establish their Celotex burden here. Plaintiffs’ inventory claim also suffers from the same infirmity. Plaintiffs contend that Deloitte’s decision to report a 44% reserve was improper, without putting forth any evidence that a 44% reserve resulted in a material overstatement of Mindscape inventory. Plaintiffs cannot defeat summary judgment without producing “specific facts” to establish an essential element of their claim. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. 3. OEM Revenue Recognition The Court has found that Deloitte performed a scienter-free audit with regards to Toolworks’ OEM revenue recognition. This alone does not, however, establish a Section 11 due diligence" }, { "docid": "22828958", "title": "", "text": "summary judgment in favor of Wong on the § 20(a) claim. In particular, the district court found that Wong did not participate in the preparation of the allegedly false financial statements and was not a control person within the ambit of § 20(a). During trial, the district court granted JMOL in favor of Hui on the § 10(b) claim on the ground that Hui did not make a statement within the meaning of § 10(b) and did not act with the requisite level of scienter. Additionally, the district court granted JMOL to Hui on the § 20(a) claim on the basis that Hui was not a control person of Everex, essentially because Hui did not supervise or participate in the preparation of the financial statements at issue and did not think any of the numbers in the statements were incorrect. On November 9, 1998, the district court entered a final judgment that dismissed all claims with prejudice. Howard timely appealed. II. Standards of Review Dismissal of claims on the pleadings are reviewed de novo, see Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir.1998), treating the complaint’s allegations as true and drawing all reasonable inferences in the plaintiffs favor, see Fajardo v. County of Los Angeles, 179 F.3d 698, 699 (9th Cir.1999). We conduct a de novo review of the district court’s grant of summary judgment. See Morris v. Newman (In re Convergent Technologies Securities Litigation), 948 F.2d 507, 512 (9th Cir.1991). In so doing, we must be mindful that “[a]lthough materiality and scienter are both fact-specific issues which should ordinarily be left to the trier of fact, summary judgment may be granted in appropriate cases. Summary judgment may be defeated in a securities fraud derivative suit only by showing a genuine issue of fact with regard to a particular statement by the company or its insiders.” Hanon v. Dataproducts Corp., 976 F.2d 497, 500 (9th Cir.1992) (internal quotation marks and citations omitted). District court rulings made in support of a JMOL are reviewed de novo. See Saman v. Robbins, 173 F.3d 1150, 1155 (9th Cir.1999). In reviewing" }, { "docid": "3490830", "title": "", "text": "by Deloitte in its OEM revenue recognition audit. Such genuine issues of material historical fact preclude summary judgment. Summary judgment is therefore GRANTED in favor of Deloitte as to Plaintiffs’ Section 11 claims regarding Toolworks’ Nintendo business and Mindscape Software, and DENIED as to Plaintiffs’ Section 11 claims regarding Toolworks’ OEM revenue recognition. II. Plaintiffs’ Motion for Partial Summary Judgment Plaintiffs move for summary judgment as to Section 11 and 10(b) liability on three issues: (1) the alleged misrepresentations concerning OEM revenue in the March 31, 1990 Financial Statements, (2) Deloitte’s alleged failure to perform standard audit procedures with respect to the OEM and Nintendo businesses, and (3) Deloitte’s alleged active participation in making fraudulent misrepresentations to the SEC concerning OEM licensing recognition revenue. After this Court’s rulings on Deloitte’s motion for summary judgment, the only undecided claims in Plaintiffs’ motion are Plaintiffs’ Section 11 claims with respect to Toolworks’ OEM revenue recognition. As set above, however, these claims are unsuited for summary judgment since they contain genuine issues of material fact. Plaintiffs’ motion for partial summary judgment is therefore DENIED. CONCLUSION For the foregoing reasons, the Court hereby rules as follows: 1. Underwriters’ motion for summary judgment on all claims against them is hereby GRANTED; 2. Plaintiffs’ motion for partial summary judgment against the Underwriters as to liability on Plaintiffs’ Section 11 and 12(2) claims is hereby DENIED; 3. Deloitte’s motion for summary judgment on all claims against them is hereby DENIED. Deloitte’s motion for partial summary judgment as to Section 11 and 10(b) claims against it is hereby GRANTED IN PART AND DENIED IN PART as follows: a. Deloitte’s motion for partial summary judgment on Plaintiffs’ Section 10(b) primary liability claims is hereby GRANTED; b. Deloitte’s .motion for partial summary judgment on Plaintiffs’ Section 10(b) aiding and abetting claim is hereby GRANTED; c. Deloitte’s motion for partial summary judgment on Plaintiffs’ Section 10(b) conspiracy claim is hereby GRANTED; d.Deloitte’s motion for partial summary judgment on Plaintiffs’ Section 11 claims is hereby GRANTED as to Tool-works’ Nintendo business and Mindscape Software claims and DENIED as to Tool-works’ OEM revenue" }, { "docid": "3490829", "title": "", "text": "defense. Whether an auditor performed a reasonable investigation is inextricably tied to compliance with its professional standards, including GAAS and generally accepted accounting principles (“GAAP”). See Escott v. Barchris Construction Corp., 283 F.Supp. at 703. Failure to comply with GAAS, GAAP and ordinary care, even where an otherwise scienter-free audit was performed, may result in Section 11 liability. See Straus v. Holiday Inns, Inc., 460 F.Supp. 729, 732 (S.D.N.Y.1978) (Section 11 liability “may lie for wholly negligent conduct.”). Deloitte must establish that it performed a reasonable investigation under the circumstances in order to receive summary judgment on the Section 11 OEM revenue recognition claim. In order for the Court to find due diligence as a matter of law, there must be no genuine issues of material historical fact in dispute. After a careful review of the record, the Court finds that there are genuine issues of material historical fact with regards to Deloitte’s OEM revenue recognition due diligence. The record, for example, is replete with disputed facts regarding whether GAAS and GAAP procedures were followed by Deloitte in its OEM revenue recognition audit. Such genuine issues of material historical fact preclude summary judgment. Summary judgment is therefore GRANTED in favor of Deloitte as to Plaintiffs’ Section 11 claims regarding Toolworks’ Nintendo business and Mindscape Software, and DENIED as to Plaintiffs’ Section 11 claims regarding Toolworks’ OEM revenue recognition. II. Plaintiffs’ Motion for Partial Summary Judgment Plaintiffs move for summary judgment as to Section 11 and 10(b) liability on three issues: (1) the alleged misrepresentations concerning OEM revenue in the March 31, 1990 Financial Statements, (2) Deloitte’s alleged failure to perform standard audit procedures with respect to the OEM and Nintendo businesses, and (3) Deloitte’s alleged active participation in making fraudulent misrepresentations to the SEC concerning OEM licensing recognition revenue. After this Court’s rulings on Deloitte’s motion for summary judgment, the only undecided claims in Plaintiffs’ motion are Plaintiffs’ Section 11 claims with respect to Toolworks’ OEM revenue recognition. As set above, however, these claims are unsuited for summary judgment since they contain genuine issues of material fact. Plaintiffs’ motion for" }, { "docid": "3490845", "title": "", "text": "material since the Prospectus did say that ”[t]here can be no assur- anees that the Company will not be subject to product returns in the future.” Prospectus at 8. . Cf. Ahern v. Gaussoin, 611 F.Supp. 1465, 1483 (D.Or.1985) (subsequent events up to effective date of registration statement are relevant to show that financial statement was false or that it had become misleading). . Deloitte also seeks summary judgement on grounds of lack of materiality on certain issues. Deloitte's materiality arguments will be addressed where appropriate. .This Court has found that there is no evidence of scienter on the record to support Plaintiffs' Section 10(b) claims with respect to Tool-works' Nintendo business, Toolworks’ Minds-cape business, and recognition of revenues on Toolworks’ OEM software licensing business. Section 11 liability, however, does not require proof of scienter; liability \"may lie for wholly negligent conduct.” Straus v. Holiday Inns, Inc., 460 F.Supp. 729, 732 (S.D.N.Y.1978). . See supra Plaintiffs vs. Deloitte, Section I.A.l.a.l. The Court further found that with respect to Plaintiffs claim regarding sales to three Nintendo distributors, Plaintiffs offer no evidence to establish that the sales took place in fiscal 1990 or are reflected in Toolworks’ audited March 31, 1990 Financial Statements. See id. at Section I.A.l.a.l.b. . See supra Plaintiffs vs. Deloitte, Section I.A.l.a.3. . See id. at Section I.A.l.a.4. .By contrast, summary judgment is appropriate for the Underwriters since there are no genuine issues of material historical fact with regard to the due diligence they performed; instead, the disagreement there is as to whether the due diligence performed entitles the Underwriters to a statutory defense as a matter of law. See Plaintiffs v. Underwriters, Section I.A.l. It is not the merits of the defense that separate the Underwriters from Deloitte; rather, it is the fact/law distinction." }, { "docid": "3490844", "title": "", "text": "for the proposition that the use of Deloitte’s name in the Prospectus is per se substantial assistance. Whether Deloitte \"knew of and substantially assisted in the wrong depends on the circumstances.” Roberts, 857 F.2d at 653 (citation omitted). . Plaintiffs do not contend, nor does the Court construe, this aiding and abetting claim as arguing that Toolworks' OEM revenue recognition policy was different from the policy described in the Prospectus. In fact, all the direct evidence in the record confirms that Toolworks’ revenue recognition policy was accurately reflected in the Prospectus. . See supra Plaintiffs vs. Deloitte, Section I.A.l.a.4. . See supra Plaintiffs vs. Deloitte, Section I.A.2.a.l.a. . Plaintiffs argue that language to the effect that \"it may be necessary for the Company to modify its return policy” was omitted from the Prospectus because Deloitte suggested that if the disclosure were made, Toolworks would have to establish Nintendo reserves. The evidence cited (Mr. Nate Cartell’s testimony), however, does not imply scienter and is therefore insufficient to defeat summary judgment. Additionally, the omitted language was not material since the Prospectus did say that ”[t]here can be no assur- anees that the Company will not be subject to product returns in the future.” Prospectus at 8. . Cf. Ahern v. Gaussoin, 611 F.Supp. 1465, 1483 (D.Or.1985) (subsequent events up to effective date of registration statement are relevant to show that financial statement was false or that it had become misleading). . Deloitte also seeks summary judgement on grounds of lack of materiality on certain issues. Deloitte's materiality arguments will be addressed where appropriate. .This Court has found that there is no evidence of scienter on the record to support Plaintiffs' Section 10(b) claims with respect to Tool-works' Nintendo business, Toolworks’ Minds-cape business, and recognition of revenues on Toolworks’ OEM software licensing business. Section 11 liability, however, does not require proof of scienter; liability \"may lie for wholly negligent conduct.” Straus v. Holiday Inns, Inc., 460 F.Supp. 729, 732 (S.D.N.Y.1978). . See supra Plaintiffs vs. Deloitte, Section I.A.l.a.l. The Court further found that with respect to Plaintiffs claim regarding sales to three Nintendo" }, { "docid": "3490825", "title": "", "text": "late June 1990. Plaintiffs’ argument regarding unused draft Prospectus language does not alter this finding. Plaintiffs’ second Prospectus aiding and abetting claim also fails for lack of scien-ter. b. Conspiracy Allegations Liability for conspiring to violate the federal securities laws requires “specific facts showing ‘an agreement to participate in an unlawful act.’ ” June 18, 1991 Order at 9, 1991 WL 319033 (quoting Alfus v. Pyramid Technology Corp., 745 F.Supp. 1511, 1520 (N.D.Cal.1990)). Plaintiffs offer no evidence of an agreement by Deloitte to enter into a conspiracy with Toolworks. Plaintiffs instead offer speculative inferences that a conspiracy existed. This will not do. See, e.g., Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir.1987) (speculative inferences of conspiracy will not help). Summary judgement is therefore GRANTED in favor of Deloitte with respect to Plaintiffs’ Section 10(b) claims. B. Section 11 Claims Section 11 limits an accountant’s liability to a statement in a registration statement “which purports to have been prepared or certified by him.” 15 U.S.C. § 77k(a)(4). An accountant may therefore be held liable only for those statements “expressly attributed to the accountant” on the face of the registration statement. McFarland v. Memorex Corp., 493 F.Supp. 631, 643 (N.D.Cal.1980), modified on other grounds, 581 F.Supp. 878 (N.D.Cal.1984). Here, the only statement attributed to De-loitte in the Prospectus is Deloitte’s audited March 31, 1990 Financial Statements. De-loitte is accordingly liable under Section 11 for any material misrepresentations or omissions in the March 31, 1990 Financial Statements, unless it establishes an affirmative due diligence defense. Herman & MacLean v. Huddleston, 459 U.S. 375, 382, 103 S.Ct. 683, 687, 74 L.Ed.2d 548 (1983). Deloitte seeks summary judgment on Plaintiffs’ Section 11 claims against it primarily on the issue of due diligence. It claims that the investigation performed in connection with the March 31, 1990 Financial Statements entitles it to the “due diligence” defense. See id.; 15 U.S.C. § 77k(b)(3)(B). Plaintiffs respond that De-loitte cannot establish a due diligence defense because there is substantial evidence that Deloitte failed to perform a reasonable investigation into (1) Toolworks’ Nintendo business, (2) Toolworks’ Mindscape business," }, { "docid": "3490802", "title": "", "text": "Aiding and Abetting Allegations Aiding and abetting liability requires proof of actual knowledge of the primary wrong and substantial assistance in committing it. Jett v. Sunderman, 840 F.2d 1487, 1495 (9th Cir.1988). Plaintiffs offer no evidence that the Underwriters knew that any of the statements made by Tool-works were false, nor that the Underwriters substantially assisted in the fraud by soliciting the Kleiber and Turzo reports. Plaintiffs fail to establish their burden under Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgement is therefore GRANTED in favor of the Underwriters with respect to Plaintiffs’ Section 10(b) claims. PLAINTIFFS VS. DELOITTE Plaintiffs seek partial summary judgment against Deloitte as to Section 11 and 10(b) liability on three issues. Deloitte seeks summary judgment on all claims against it or, alternatively, partial summary judgment as to any of the Section 11 and 10(b) claims against it. As previously noted, Plaintiffs must establish that summary judgment is appropriate as to every element of their securities claims in order to attain summary judgement. If Deloitte can raise a genuine factual dispute as to any element, Plaintiffs’ motion must be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Deloitte, by contrast, can obtain summary judgment by defeating any one element of Plaintiffs’ claims. Since defeating any one element will not only afford summary judgment to Deloitte, but will also necessarily decide Plaintiffs’ motion, the Court will first address De-loitte’s motion. I. Deloitte’s Motion for Summary Judgment Deloitte seeks summary judgment on Plaintiffs’ Section 11 and 10(b) claims against it. According to Deloitte, it is entitled to summary judgment on the Section 10(b) claims because Plaintiffs cannot prove the necessary scienter to establish primary or secondary liability under Section 10(b). Deloitte further claims that the evidence in the record indisputably demonstrates that their investigation in relation with the audited March 31, 1990 financial statements (“March 31, 1990 Financial Statements”) included in the Prospectus satisfied the due diligence standard, and therefore exempts it from Section 11 liability. Plaintiffs respond that Deloitte" }, { "docid": "22877753", "title": "", "text": "plaintiffs had not established that any defendant acted with scienter sufficient to attach liability under section 10(b). We conduct de novo review of the district court’s grant of summary judgment. E.g., Morris v. Newman (In re Convergent Technologies Sec. Litig.), 948 F.2d 507, 512 (9th Cir.1991). In so doing, we are mindful that, “[although materiality and scienter are both fact-specific issues which should ordinarily be left to the trier of fact, summary judgment may be granted in appropriate cases. Summary judgment may be defeated in a securities fraud derivative suit only by showing a genuine issue of fact with regard to a particular statement by the company or its insiders.” Hanon v. Dataproducts Corp., 976 F.2d 497, 500 (9th Cir.1992) (citations and quotations omitted). II. We turn first to the plaintiffs’ claims against the Officers, the Directors, Smith Barney, and Deloitte under section 11 of the 1933 Act, which creates a private right of action in favor of securities purchasers who rely upon a materially false or misleading prospectus. See 15 U.S.C. § 77k(a). The district court held that (1) except for possible errors in the certified 1987 financial statements that were appended to the document, “there are no statements in, or omissions from, the Debenture Prospectus that would give rise to an inference that any part of the document was false or misleading,” WOW, 814 F.Supp. at 866, and (2) even assuming that the 1987 financial statements were false or misleading, each defendant had established an affirmative defense to section 11 liability as a matter of law. A. In concluding that the “textual part” of the Debenture Prospectus was not false or misleading, the district court analyzed the plaintiffs’ claims of misrepresentation under the rubric of the “bespeaks caution” doctrine: ... The doctrine holds that economic projections, estimates of future performance, and similar optimistic statements in a prospectus are not actionable when precise cautionary language elsewhere in the document adequately discloses the risks involved. It does not matter if the optimistic statements are later found to have been inaccurate or based on erroneous assumptions when made, provided that the" }, { "docid": "22877752", "title": "", "text": "Inc., and Worlds of Wonder Shares Partnership (“the Shareholders”). The plaintiffs claimed that the prospectus accompanying the offering (“the Debenture Prospectus”) was false and misleading in violation of sections 11 and 12(2) of the Securities Act of 1933 (“1933 Act”) and section 10(b) of the Securities Exchange Act of 1934 (“1934 Act”) and that the Directors and Shareholders had engaged in insider trading in violation of section 10(b). After a tortured five years of proceedings, the district court, granted summary judgment in favor of all defendants in an exhaustive opinion. See In re Worlds of Wonder Sec. Litig., 814 F.Supp. 850 (N.D.Cal.1993) [WOW]. The court held that (1) with the possible exception of the audited 1987 financial statements, the Debenture Prospectus fully disclosed the risks of investing in WOW and that, as a result, under the “bespeaks caution” doctrine the document was not false or misleading as a matter of law; (2) even if the 1987 financial statements were false or misleading, all defendants had established affirmative defenses to section 11 liability; and (3) the plaintiffs had not established that any defendant acted with scienter sufficient to attach liability under section 10(b). We conduct de novo review of the district court’s grant of summary judgment. E.g., Morris v. Newman (In re Convergent Technologies Sec. Litig.), 948 F.2d 507, 512 (9th Cir.1991). In so doing, we are mindful that, “[although materiality and scienter are both fact-specific issues which should ordinarily be left to the trier of fact, summary judgment may be granted in appropriate cases. Summary judgment may be defeated in a securities fraud derivative suit only by showing a genuine issue of fact with regard to a particular statement by the company or its insiders.” Hanon v. Dataproducts Corp., 976 F.2d 497, 500 (9th Cir.1992) (citations and quotations omitted). II. We turn first to the plaintiffs’ claims against the Officers, the Directors, Smith Barney, and Deloitte under section 11 of the 1933 Act, which creates a private right of action in favor of securities purchasers who rely upon a materially false or misleading prospectus. See 15 U.S.C. § 77k(a). The" }, { "docid": "3490803", "title": "", "text": "If Deloitte can raise a genuine factual dispute as to any element, Plaintiffs’ motion must be denied. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Deloitte, by contrast, can obtain summary judgment by defeating any one element of Plaintiffs’ claims. Since defeating any one element will not only afford summary judgment to Deloitte, but will also necessarily decide Plaintiffs’ motion, the Court will first address De-loitte’s motion. I. Deloitte’s Motion for Summary Judgment Deloitte seeks summary judgment on Plaintiffs’ Section 11 and 10(b) claims against it. According to Deloitte, it is entitled to summary judgment on the Section 10(b) claims because Plaintiffs cannot prove the necessary scienter to establish primary or secondary liability under Section 10(b). Deloitte further claims that the evidence in the record indisputably demonstrates that their investigation in relation with the audited March 31, 1990 financial statements (“March 31, 1990 Financial Statements”) included in the Prospectus satisfied the due diligence standard, and therefore exempts it from Section 11 liability. Plaintiffs respond that Deloitte cannot justify summary judgment since the evidence on the record: (1) raises triable issues of fact with respect to Plaintiffs’ Section 10(b) claims, and (2) establishes that the Prospectus was materially false and misleading and that Deloitte failed to make a reasonable investigation of the accuracy of the financial statements included in the Prospectus. For the reasons set forth below, and after a full hearing and an exhaustive review of the facts and evidence presented by the parties, Deloitte’s motion for summary judgment is hereby GRANTED IN PART AND DENIED IN PART. A. Section 10(b) Claims 1. Primary Liability Liability under Section 10(b) requires (1) a material misstatement or omission, (2) in connection with the purchase or sale of a security, (3) scienter, and (4) reliance. Basic, Inc. v. Levinson, 485 U.S. 224, 231, 108 S.Ct. 978, 983, 99 L.Ed.2d 194 (1988). As previously noted, scienter may be satisfied either by proof of actual knowledge or by proof of recklessness. Hollinger, 914 F.2d at 1568-69. Deloitte contends that Plaintiffs offer no evidence of scienter (nor" }, { "docid": "3490828", "title": "", "text": "with respect to Mindscape Software: (1) the improper inclusion of Minds-cape royalty advances and guarantees in revenues; and (2) the improper inclusion of obsolete Mindscape computer software in inventory, resulting in an inventory reserve which should have been higher than stated. The Court has found that Plaintiffs have failed to offer any admissible evidence of a material overstatement with respect to royalty advances and guarantees, and accordingly now finds that Plaintiffs also fail to establish their Celotex burden here. Plaintiffs’ inventory claim also suffers from the same infirmity. Plaintiffs contend that Deloitte’s decision to report a 44% reserve was improper, without putting forth any evidence that a 44% reserve resulted in a material overstatement of Mindscape inventory. Plaintiffs cannot defeat summary judgment without producing “specific facts” to establish an essential element of their claim. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. 3. OEM Revenue Recognition The Court has found that Deloitte performed a scienter-free audit with regards to Toolworks’ OEM revenue recognition. This alone does not, however, establish a Section 11 due diligence defense. Whether an auditor performed a reasonable investigation is inextricably tied to compliance with its professional standards, including GAAS and generally accepted accounting principles (“GAAP”). See Escott v. Barchris Construction Corp., 283 F.Supp. at 703. Failure to comply with GAAS, GAAP and ordinary care, even where an otherwise scienter-free audit was performed, may result in Section 11 liability. See Straus v. Holiday Inns, Inc., 460 F.Supp. 729, 732 (S.D.N.Y.1978) (Section 11 liability “may lie for wholly negligent conduct.”). Deloitte must establish that it performed a reasonable investigation under the circumstances in order to receive summary judgment on the Section 11 OEM revenue recognition claim. In order for the Court to find due diligence as a matter of law, there must be no genuine issues of material historical fact in dispute. After a careful review of the record, the Court finds that there are genuine issues of material historical fact with regards to Deloitte’s OEM revenue recognition due diligence. The record, for example, is replete with disputed facts regarding whether GAAS and GAAP procedures were followed" } ]

[ { "docid": "8513243", "title": "", "text": "GRIM, District Judge. Defendant has filed a motion to stay this suit until the conclusion of two suits instituted in a Pennsylvania court. James T. Haviland died on April 28, 1957, as a result of a collision in Philadelphia on April 9, 1957, with one of defendant’s buses. His only surviving close relatives were two daughters, Marjorie Arny and Nancy McGowan. Marjorie Arny, plaintiff herein, is a citizen and resident of New Jersey. The other daughter, Nancy McGowan, is a citizen of Pennsylvania, as is Girard Trust Corn Exchange Bank, executor of James T. Haviland’s estate. Defendant, Philadelphia Transportation Company, is also a citizen of Pennsylvania. The case before me is a death action arising out of the 1957 accident, filed in this court on March 31, 1958, by Marjorie Arny as trustee ad litem for herself and Nancy McGowan. On April 3, 1958, Marjorie Arny and Nancy Mc Gowan filed- in the Court of Common Pleas of Philadelphia County a death action identical with the suit in this court except for the addition of Nancy McGowan as a named party plaintiff. On the same day, April 3', 1958, Girard Trust. Corn Exchange Bank, as executor of the decedent’s estate, filed a survival action arising out of the same accident in the Court of Common Pleas of Philadelphia County. No survival action has been filed in this court. Normally the commencement of identical actions in both federal and state - courts would not be a proper ground for staying the action in the federal court. Normally plaintiff would be entitled to have her case tried in this court whenever,, within the orderly processes’ of the court, it is reached for trial, regardless of the pendency of an identical action in a state court. The present situation, however, is not normal. The action in-thé state'court has a companion: a survival action arising out of the' same death. Defendant has moved to stay the suit in this court in an effort to enforce a policy of the Pennsylvania state courts to prevent separate trials of death and survival actions. Since there is" } ]

[ { "docid": "13021397", "title": "", "text": "WINTER, Circuit Judge: We authorized this interlocutory appeal to review the correctness of the district court’s ruling that it had diversity jurisdiction in a wrongful death action against a citizen of North Carolina brought by an executrix who is a citizen of Virginia for beneficiaries who are citizens of North Carolina. We affirm. I. Johnnie Dewey Hodges, Jr. was a citizen of North Carolina who became a patient in a hospital in Wilmington, North Carolina, operated by New Hanover Memorial Hospital, Inc. (hospital), a North Carolina corporation. Hodges died in the hospital, after having undergone surgery for the repair of a hiatal hernia, under circumstances indicating to his survivors negligent conduct on the part of some of the employees of the hospital which caused or contributed to his death. He died testate and he named as the executrix of his estate his sister, Irma H. Sadler, who is a citizen and resident of Virginia. North Carolina does not prohibit non-residents from serving as executors, and Irma H. Sadler qualified as executrix of the estate. Her brother had been divorced from his wife but he was survived by two minor sons, both residing in North Carolina in the custody of their mother, who would be the beneficiaries of any recovery from the successful prosecution of a wrongful death action. The executrix sued the hospital in the district court alleging wrongful death, claiming $1,500,000 damages, and invoking diversity jurisdiction. A like suit was filed in state court. The hospital moved to dismiss the suit in the district court, asserting that diversity jurisdiction was lacking because the real parties in interest were the minor sons, who were citizens of North Carolina, and the hospital, which was also a citizen of North Carolina. Alternatively, the hospital moved the district court to stay the proceedings before it pending final adjudication of the suit in state court. The district court denied the motion to dismiss and certified the interlocutory appeal which we allowed. The district court reserved ruling on the motion to stay because plaintiff indicated her intention to dismiss the state suit if the jurisdiction" }, { "docid": "16566002", "title": "", "text": "12 P.S.Pa. §§ 1601-1604. The wrongful death action is awaiting trial. Defendant relies on Pennsylvania Rule of Civil Procedure No. 213(e), 12 P.S. Appendix, which provides: “A cause of action for the wrongful death of a decedent and a cause of action for his injuries which survives his death may be enforced in one action but if independent actions are commenced they shall be consolidated for trial. “(1) If independent actions are commenced or are pending in the same court, the court, on its own motion or the motion of any party, shall order the actions consolidated for trial. “(2) If independent actions are commenced in different courts, the court in which the second action was commenced, on its own motion or the motion of any party, shall order the action transferred to the court in which the first action was commenced. “(3) If an action is commenced to enforce one cause of action, the court, on its own motion or the motion of any party, may stay the action until an action is commenced to enforce the other cause of action and is consolidated therewith or until the commencement of such second action is barred by the applicable statute of limitation.” This rule was promulgated by the Supreme Court of Pennsylvania following the decision in Pezzulli v. D’Ambrosia, 1942, 344 Pa. 643, 26 A.2d 659, 662, in which the court cautioned against the duplication of damages and required consolidation “whenever two actions are brought by the personal representative of the deceased”. Hopkins v. Pennsylvania Power & Light Co., D.C.E.D.Pa.1953, 112 F.Supp. 136, was an action brought under the Survival Act, 20 P.S.Pa. Chapter 3 Appendix, §§ 771, 772, by an administratrix in the district court after suit under the Wrongful Death Act, 12 P.S.Pa. §§ 1602, 1603, had been instituted in the Court of Common Pleas of Lehigh County. The defendant filed a motion to dismiss the action in the district court on the ground that Pennsylvania Rule of Civil Procedure No. 213(e) required that the actions be consolidated for trial. The motion was dismissed on the theory that" }, { "docid": "11156988", "title": "", "text": "RIVES, Circuit Judge. This appeal is from a judgment sustaining the defendant’s motion to dismiss the plaintiff’s action for the wrongful death of Mrs. Lillian Melancon Adams. The complaint alleged that on January 15,1959, Mrs. Adams was a guest passenger in an automobile operated by her husband, Andrew P. Adams; that “the automobile was caused to be in collision with a truck, when the automobile went into the opposite and oncoming traffic lane”; that Mrs. Adams’ husband “negligently failed to keep a proper lookout ahead, to maintain his automobile under proper control, to stay in his own traffic lane, and to otherwise operate the automobile in such a manner as to have avoided the collision” ; and that “as a result of the collision Mrs- Lillian Melancon Adams sustained severe personal injuries which were fatal to her.” The plaintiffs are the brothers and sisters of Mrs. Adams. She is survived also by her husband, but not by any descendants or ascendants. The action is brought, pursuant to LSA-Revised Statutes of 1950, 22:655, directly against the liability insurer of Mrs. Adams’ husband. The defendant moved to dismiss the action on the ground that the plaintiffs are without right to bring this action under the law of Louisiana. Attached to the motion to dismiss is an affidavit of one of defendant’s attorneys to the effect that the husband, Andrew P. Adams, has filed suit against the defendant in a Louisiana State court for the wrongful death of his wife, asserting the identical cause of action being asserted by her brothers and sisters, except that damages are demanded on behalf of the husband. The district court, without opinion, granted the defendant’s motion and dismissed the action. This appeal from that decision turns upon the construction of the Louisiana wrongful death statute as it existed at the time of decedent’s death, in part as follows: “Art. 2315. Liability for acts causing damage; survival of action “Art. 2315. Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it; the right of this action shall survive" }, { "docid": "17517108", "title": "", "text": "BIGGS, Chief Judge. The suit at bar was brought by Marjorie Arny, on her own behalf and as trustee ad litem on behalf of her sister, under the Pennsylvania Wrongful Death Act, 12 P.S.Pa. § 1601 et seq., Acts of April 15, 1851, P.L. 669, § 19, and April 26, 1855, P.L. 309, § 1, as amended. The suit was filed on March 31, 1958. The plaintiff is a citizen and resident of New Jersey, and the defendant is a corporation of Pennsylvania. Jurisdiction is based on diversity. The facts alleged in the complaint briefly put are as follows. James T. Haviland, the father of the plaintiff and her sister, was injured fatally in a collision between the motor vehicle in which he was riding and a bus owned and operated by the defendant. The complaint alleges that the accident was caused by the sole negligence of the defendant. The defendant filed a motion under Rule 12(b), Fed.R.Civ.Proc., 28 U.S.C., to dismiss the complaint or in the alternative to stay the instant suit pending the determination of litigations in the Court of Common Pleas. The bases of the motion were that on April 3, 1958, Arny and her sister had brought a separate action based on the Pennsylvania Wrongful Death Act, supra, in the Court of Common Pleas of Philadelphia County at No. 1407, March Term 1958 and that Girard Trust Corn Exchange Bank, as alternate executor of the Estate of James T. Haviland, in the Court of Common Pleas of Philadelphia County, at No. 1406, March Term 1958 brought a survival action against the defendant pursuant to Section 601 of the Fiduciaries Act of 1949, 20 P.S.Pa. § 320.601. The court below, refusing to dismiss the complaint in the instant suit, nonetheless stayed the proceedings pending the de termination of the litigations in the Court of Common Pleas within a reasonable time, basing its ruling on an asserted substantive right to avoid the duplication of damages. D.C.1958, 163 F.Supp. 953, 955. The appeal followed. Two jurisdictional questions are presented. The first raised, briefed and vigorously argued by the defendant," }, { "docid": "16566001", "title": "", "text": "interest and that the appointment of plaintiff was collusive, the same argument was made in Jaffe v. Philadelphia & W. R. Co., 3 Cir., 1950, 180 F.2d 1010, and there decided adversely to the defendant. On that authority we likewise decide against defendant here. In considering contention (b), it is to be observed that the plaintiff administrator brought the action in this court under the Fiduciaries Act of 1949, 20 P.S.Pa. § 320.603. At the hearing both parties concurred in the following facts. Since filing the survival action here, the plaintiff issued a summons in the Court of Common Pleas of Lawrence County, Pennsylvania, as his counsel rep resents, for the sole purpose of tolling the statute of limitations applicable to survival actions in the event that this court should sustain the defendant’s motion to dismiss the action filed here. And prior to both of these suits the widow of the decedent, for herself and on behalf of her minor children, brought an action against the defendant in Lawrence County under the Wrongful Death Acts, 12 P.S.Pa. §§ 1601-1604. The wrongful death action is awaiting trial. Defendant relies on Pennsylvania Rule of Civil Procedure No. 213(e), 12 P.S. Appendix, which provides: “A cause of action for the wrongful death of a decedent and a cause of action for his injuries which survives his death may be enforced in one action but if independent actions are commenced they shall be consolidated for trial. “(1) If independent actions are commenced or are pending in the same court, the court, on its own motion or the motion of any party, shall order the actions consolidated for trial. “(2) If independent actions are commenced in different courts, the court in which the second action was commenced, on its own motion or the motion of any party, shall order the action transferred to the court in which the first action was commenced. “(3) If an action is commenced to enforce one cause of action, the court, on its own motion or the motion of any party, may stay the action until an action is commenced" }, { "docid": "8513247", "title": "", "text": "the likely support he would have furnished them during his life expectancy; any such recovery, therefore, would have to be deducted from that to which the executor or administrator of his estate would otherwise be entitled under the act of 1937 [the survival action statute, 20 P.S. c. 3 Appendix, § 771 et seq.]; the logic in supporting such a deduction is that if the deceased had lived he would have [made] such provision for his - * * -* children. In order to prevent any duplication, whenever two actions are brought * * ■ *. one under the death acts and the other under the survival statute, they must be consolidated and tried together * * ' In Murray v. Philadelphia Transportation Co., 1948, 359 Pa. 69, 71, 58 A.2d 323, 324, the Pennsylvania Supreme ;Court said: “The purpose of this legislation [wrongful death and survival statutes] is to provide compensation, not punishment; there is no ground for holding that the legislature intended a duplication of damages. In order to avoid such duplication of damages, Pa.R.C.P. No. 2202, 12 P. S.Appendix provides that both classes of claims shall be included in one action.” It is a little difficult to understand why •there would be a duplication of damages in death and survival actions tried separately if they are tried properly and the juries are instructed thoroughly and correctly. It is perfectly clear, however, that the only cause of action pursued in the present suit is one created by state law. Consequently this federal court should impose upon this state-created cause of action the same limitation ■ which the state courts impose. Since it arises largely from the Pennsylvania Rules of Civil Procedure this limitation may seem to be a mere matter of state procedure having no weight in a federal court. A defendant’s right to protection against duplicating awards of damages, however, is a substantive right, and under the circumstances the Pennsylvania limitation will be imposed in the present ease so far as such imposition is practical. Since both death and survival actions have been filed in Pennsylvania courts," }, { "docid": "8513244", "title": "", "text": "Nancy McGowan as a named party plaintiff. On the same day, April 3', 1958, Girard Trust. Corn Exchange Bank, as executor of the decedent’s estate, filed a survival action arising out of the same accident in the Court of Common Pleas of Philadelphia County. No survival action has been filed in this court. Normally the commencement of identical actions in both federal and state - courts would not be a proper ground for staying the action in the federal court. Normally plaintiff would be entitled to have her case tried in this court whenever,, within the orderly processes’ of the court, it is reached for trial, regardless of the pendency of an identical action in a state court. The present situation, however, is not normal. The action in-thé state'court has a companion: a survival action arising out of the' same death. Defendant has moved to stay the suit in this court in an effort to enforce a policy of the Pennsylvania state courts to prevent separate trials of death and survival actions. Since there is no diversity of citizenship between the parties to the survival action, it could not properly be filed in this court. This Pennsylvania policy is set forth in Rule 213(e) of the Pennsylvania Rules of Civil Procedure as follows: “A cause of action for the wrongful death of a decedent and a cause of action for his injuries which survives his death may be enforced in oné action but if independent actions are commenced they shall be consolidated for trial. “(1) If independent actions are commenced or are pending in the same court, the court, on its own motion or the motion of any party, shall order the actions consolidated for trial. “(2) If independent actions are coinmeneed in different courts, the court in which the second action was'commenced, on its own motion or the motion of any party, shall order the action transferred to the court in which the,, first action was commenced. “(3) If an action is commenced to enforce one cause of action,. the court, on its own motion or the motion of" }, { "docid": "16566003", "title": "", "text": "to enforce the other cause of action and is consolidated therewith or until the commencement of such second action is barred by the applicable statute of limitation.” This rule was promulgated by the Supreme Court of Pennsylvania following the decision in Pezzulli v. D’Ambrosia, 1942, 344 Pa. 643, 26 A.2d 659, 662, in which the court cautioned against the duplication of damages and required consolidation “whenever two actions are brought by the personal representative of the deceased”. Hopkins v. Pennsylvania Power & Light Co., D.C.E.D.Pa.1953, 112 F.Supp. 136, was an action brought under the Survival Act, 20 P.S.Pa. Chapter 3 Appendix, §§ 771, 772, by an administratrix in the district court after suit under the Wrongful Death Act, 12 P.S.Pa. §§ 1602, 1603, had been instituted in the Court of Common Pleas of Lehigh County. The defendant filed a motion to dismiss the action in the district court on the ground that Pennsylvania Rule of Civil Procedure No. 213(e) required that the actions be consolidated for trial. The motion was dismissed on the theory that the rule is not binding upon federal courts. In the instant case we have the further complication of two actions filed under the Survival Act. However, the pendency of an action in a state court is no bar to an action concerning the same matter in a federal court. The state and federal courts have concurrent jurisdiction over certain controversies which arise between citizens of different states. Each may proceed independently to determine the issues before it, and the first case to terminate in a judgment becomes res judicata as to the other. Therefore, the fact that the plaintiff has a similar suit pending in Lawrence County is not sufficient to distinguish this case from the Hopkins case. We agree with the decision of Judge Clary in the Hopkins case and adopt his analysis of the question. At the hearing we suggested that in diversity cases a federal court is bound to enforce the public policy of the state in which it sits, and that to permit separate trials under the Wrongful Death and the" }, { "docid": "10793841", "title": "", "text": "inconstant, we believe his selection weighs less heavily in the balance. When litigation between the parties was initially begun here, plaintiff had available to him the advantages of this tribunal. Apparently satisfied with the state court in which similar proceedings had been instituted, all of the parties (including plaintiff) consented to a dismissal of the federal action. Moreover, plaintiff’s counterclaim in the state action, permissive and not compulsory under the Pennsylvania rules, is further evidence of his satisfaction with that forum. Finally, the issue of fact pleading required in the state action versus notice pleading permitted in the federal courts is a moot one, because the state action is beyond the pleading stage and has in fact progressed to the discovery phase. Moreover, the purported advantages of more liberal discovery in the federal forum do not outweigh the disadvantages to the other parties, to counsel, to this court, and to the public at large. We do not abandon our jurisdiction by staying our proceedings. Should the state court action not proceed to judgment on the merits, this Court stands ready to resume supervision of this litigation, if sufficient cause is advanced to persuade us to do so. Therefore, while we grant defendants’ motion to stay proceedings at this juncture of the litigation, plaintiff Nigro is granted the continuing right to petition for modification of this stay in part or in toto if he can allege material facts and circumstances which would justify such action. . Plaintiff Nigro, at the time of filing this action, was a eitizerl of Brazil. . The City claimed ^indemnity from Buckley and Company, Inc., and Buckley and Company, Inc. in turn claimed indemnity from the other defendants, in the event of an adverse judgment. 1 . On January 25, 1972, prior to the institution of the state court action, Blumberg brought wrongful death' and survival actions in this court against Nigro. On May 26, 1972, the wrongful dentil action was dismissed with prejudice, by stipulation of the parties; Nigro subsequently brought in William Heaney and the City of Philadelphia as third-party defendants. On January 15," }, { "docid": "20945568", "title": "", "text": "289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933); Taussig v. Wellington Fund, Inc., 313 F.2d 472 (3d Cir. 1963). The Supreme Court cases that have applied pendent jurisdiction have involved a federal claim rather than one under our diversity power. Nevertheless, in Borror v. Sharon Steel Company, 327 F.2d 165 (3d Cir. 1964), the doctrine was extended to permit a valid diversity claim to act as the basis of jurisdiction for other claims that could not otherwise be brought into federal court. In that case, an out of state administrator of a decedent’s state brought an action under the Pennsylvania Survival Act, Pa.Stat.Ann. tit. 20, §§ 320, 601, for the benefit of the decedent’s estate and under the Pennsylvania Wrongful Death Act, Pa.Stat. Ann. tit. 12, § 1601, for the benefit of the decedent’s parents. The question arose as to whether the wrongful death action was properly before the court since the decedent’s parents and the defendant were all citizens of Pennsylvania. The court, first of all, sustained the jurisdiction on the theory that the administrator had a right to bring the action and that his citizenship was controlling. However, the opinion went further by stating that even if the parents were the required parties the wrongful death action was properly before the Court on the basis of pendent jurisdiction, there being no dispute concerning the court’s diversity jurisdiction over the survival claim. The court reasoned that while the two actions were distinct, they were very much dependent on one another. They arose out of the same acts, and damages were not to be duplicated. As Judge Biggs phrased it, they were a “kind of legal hybrid, Siamese twins of the Pennsylvania law, joined together by the nexus of damages.” Borror, supra, at 173. In the case now before the court, we have a similar situation. We have two claims that originate from the same occurrence and involve physical injuries to the same person. The damages to the parents here emanate directly from the tort committed against their child. Moreover, under Rule 2228(b) of the Pennsylvania Rules of" }, { "docid": "16566000", "title": "", "text": "MARSH, District Judge. This is an action for damages for the death of Thomas M. DeHass, alleged to have been caused by negligence of the defendant. The decedent’s domicile was in Pennsylvania; his widow and children and the defendant are all citizens of that stat.e. The plaintiff is a citizen of Ohio and has been duly appointed administrator of the estate. Diversity of citizenship is the sole basis for jurisdiction of this court. The defendant has filed a motion to dismiss the complaint, attacking the court’s jurisdiction, in which he contends (a) The real parties in interest in this action are all citizens of Pennsylvania and the appointment of a citizen of Ohio as administrator was a collusive attempt to confer jurisdiction on this court in violation of Section 1339 of Title 28 U.S.C.A.; and (b) The bringing of the action in this court is in violation of Rule 213(e) of the Pennsylvania Rules of Civil Procedure. With regard to defendant’s contention (a), that there is no diversity of citizenship between the real parties in interest and that the appointment of plaintiff was collusive, the same argument was made in Jaffe v. Philadelphia & W. R. Co., 3 Cir., 1950, 180 F.2d 1010, and there decided adversely to the defendant. On that authority we likewise decide against defendant here. In considering contention (b), it is to be observed that the plaintiff administrator brought the action in this court under the Fiduciaries Act of 1949, 20 P.S.Pa. § 320.603. At the hearing both parties concurred in the following facts. Since filing the survival action here, the plaintiff issued a summons in the Court of Common Pleas of Lawrence County, Pennsylvania, as his counsel rep resents, for the sole purpose of tolling the statute of limitations applicable to survival actions in the event that this court should sustain the defendant’s motion to dismiss the action filed here. And prior to both of these suits the widow of the decedent, for herself and on behalf of her minor children, brought an action against the defendant in Lawrence County under the Wrongful Death Acts," }, { "docid": "8513248", "title": "", "text": "damages, Pa.R.C.P. No. 2202, 12 P. S.Appendix provides that both classes of claims shall be included in one action.” It is a little difficult to understand why •there would be a duplication of damages in death and survival actions tried separately if they are tried properly and the juries are instructed thoroughly and correctly. It is perfectly clear, however, that the only cause of action pursued in the present suit is one created by state law. Consequently this federal court should impose upon this state-created cause of action the same limitation ■ which the state courts impose. Since it arises largely from the Pennsylvania Rules of Civil Procedure this limitation may seem to be a mere matter of state procedure having no weight in a federal court. A defendant’s right to protection against duplicating awards of damages, however, is a substantive right, and under the circumstances the Pennsylvania limitation will be imposed in the present ease so far as such imposition is practical. Since both death and survival actions have been filed in Pennsylvania courts, the actions there will perforce be consolidated for trial under the Pennsylvania Rule, and the Pennsylvania policy of consolidation can be effectuated by staying the trial in this court. Staying the trial in this court will not do plaintiff any substantial harm. It is obvious that all the rights of the interested parties arising out of Mr. Haviland’s accident and death are comprehended in the rights sought to be enforced in the actions filed in the Pennsylvania courts. Although the suit in this court was filed three days prior to the filing of the state court actions, it is unlikely (because of the condition of trial lists in the respective courts) that it would be reached for trial before or much before them. All plaintiff will lose by a stay of the trial in this court is an asserted right to have the death action tried separately from the survival action in the event the federal action should be reached for trial before the state actions. In view of the clear Pennsylvania policy requiring consolidation," }, { "docid": "7974495", "title": "", "text": "CLARY, District Judge. This is an action instituted by plaintiff, a citizen of Maryland, duly appointed Administratrix of minor decedent’s estate, to recover damages under the Survival Act of 1937, 20 P.S.Pa. c. 3 Appendix, §§ 771, 772. The minor decedent, Charles A. Lichtenwalner, was electrocuted- on August 28, 1951, when he came in contact with high tension electric wires maintained by the defendant. More than six months after the minor’s death, suit was instituted under the Wrongful Death Act of 1855, 12 P.S.Pa. §§ 1602, 1603, in the Court of Common Pleas of Lehigh County by the minor’s father as Trustee ad litem on behalf of himself and minor decedent’s mother. Defendant has moved to dismiss this action or, in the alternative, to transfer it to the -Court of Common Pleas of Lehigh County on the ground that Pa.R.C.P. 213 (e), 12 P.S.Appendix, requires .that survival actions and actions for wrongful death must be consolidated for trial. The action under the Wrongful Death Statute of 1855 and the action under the Survival Act of 1937 .are separate and distinct actions whose remedies are cumulative and not alternative, it being, however, “important that the two actions, the one under the death acts and the other under the survival statute, should not overlap or result in a duplication of damages and thereby compel the tort-feasor to pay more than the maximum damage caused by his negligent act.” Pezzulli v. D’Ambrosia, 344 Pa. 643, 648, 26 A.2d 659, 661. That is as far as the substantive law of Pennsylvania goes. In order to carry out - the purpose to prevent duplication, the Supreme Court of Pennsylvania in that case ruled that, as a matter of procedure, such actions must be consolidated and tried together and stated, 344 Pa. at page 650, 26 A.2d at page 662, that “An appropriate rule of civil procedure to that end will be duly promulgated”. Thereafter Pennsylvania Rule of Civil Procedure 213(e) was duly promulgated and is binding upon the Courts of Pennsylvania. That rule of procedure, however, cannot be used to oust this Court of its" }, { "docid": "8513250", "title": "", "text": "in my opinion, she had no such right even in a federal court which, of course, is not bound by state rules of procedure. Plaintiff contends that this case is controlled by the decision of Judge Clary of this court in the ease of Hopkins v. Pennsylvania Power & Light Co., 1953, 112 F.Supp. 136. In the Hopkins case a death action was brought in a Pennsylvania state court while a survival action arising out of the same death was brought in this court. No other action was brought in any court. Judge Clary refused a motion to dismiss or in the alternative to transfer the case from this court to the state court where the death action had been started. No motion to stay was presented to him, but if it had been presented it obviously would have been refused because a stay would not have consolidated the cases for trial since no one court had both actions and a stay would only have delayed the trial in this court. The Hopkins case is easily distinguishable from the present case. The trial in the present ease will be stayed until a reasonable time has elapsed for the conclusion of the death and survival actions filed in the Court of Common Pleas of Philadelphia County. Defendant has also filed a motion to dismiss. It will be refused. . Under the Acts of April 15, 1851, P.L. 669. Sec. 19, 12 P.S. § 1C01. and April 26, 1855, P.L. 309, Sec. 1, 12 P.S. § 1602. . Jurisdiction is based upon diversity of citizenship. The suit has been brought under Rule 2202(b) of the Pennsylvania Rules of Civil Procedure, 12 P.S.Appendix, which provides: “ * * * The [death] action may be brought * * * by any person entitled by law to recover damages in such action as trustee ad litem on behalf of all persons entitled to share in the damages.” . Under Sec. 601 of the Fiduciaries Act of 1949, '20 P.S. § 320.601. . Suits arising out of tortiously caused deaths often create in the courtroom an" }, { "docid": "10793834", "title": "", "text": "state courts. Although not directly confronting the question of the existence of this discretion, the Court of Appeals for this circuit has held that a district court’s stay of proceedings is not equivalent to a dismissal or abandonment of jurisdiction, Arny v. Philadelphia Transportation Co., 266 F.2d 869 (3d Cir. 1959) (Biggs, C. J.); we believe that that decision, sub silentio, implies the existence of discretion under the circumstances of the instant case. In Arny v. Philadelphia Transportation Co., 163 F.Supp. 953 (E.D.Pa.1958); app. dismissed 266 F.2d 869 (3d Cir. 1959) (Biggs, C. J.), the district court granted defendant’s motion to stay proceedings in a wrongful death action brought by the plaintiff as trustee ad litem on behalf of her sister and herself. Several days after plaintiff had filed the action in the federal court, her sister filed a similar wrongful death action in the Pennsylvania Court of Common Pleas. In that same court, on that same day, the executor of the father’s estate brought a survival action arising out of the same accident. The district court found that the Pennsylvania requirement that death and survival actions be brought together in order to avoid duplication of damages, conferred upon the defendant substantive protection, available to him in a consolidated trial in state court. Finding that all rights of the parties were comprehended in the state action, that no earlier adjudication was likely in the federal court, and that the plaintiff would not be prejudiced by a stay of the federal proceeding, the court granted a stay until a reasonable time should elapse for conclusion of the two actions in the state court. On appeal to the Court of Appeals for the Third Circuit, the plaintiff argued that the order to stay was “in substance a permanent stay since the conclusion of the State court litigations will in all probability render the suit at bar res judicata and that therefore the stay order is tantamount to a dismissal of the case at bar.” 266 F.2d at 870. Rejecting this argument, the Court stated: “We cannot say that the order appealed from" }, { "docid": "10793832", "title": "", "text": "by the Court of Appeals for the Fourth Circuit. Amdur v. Lizars, 372 F.2d 103 (4th Cir. 1967). Cf. Aetna State Bank v. Altheimer, 430 F.2d 750 (7th Cir. 1970); Thompson v. Boyle, 417 F.2d 1041 (5th Cir. 1969), cert. denied 397 U.S. 972, 90 S.Ct. 1088, 25 L.Ed.2d 266; Ray v. Hasley, 214 F.2d 366 (5th Cir. 1954). Although the law in this area has not been as clearly defined in decisions of this circuit as it has been in rulings by the Second and Fourth Circuits, we conclude that recent cases in this circuit are compatible with our finding that this court has the power and discretion to stay the proceedings in this action, particularly in light of the specific factual situation before us. In an early decision in this circuit, the Court of Appeals upheld a district court’s refusal to stay proceedings in an action of ejectment before it, even though there was a parallel proceeding involving the same parties in the state courts of New Jersey. Lamar v. Spalding, 154 F. 27 (3d Cir. 1907). Although a final determination had not yet been rendered by the United States Supreme Court on a writ of error to the New Jersey Court of Errors and Appeals (which had affirmed the issurance of a writ of assistance to dispossess Lamar, plaintiff-appellee in the federal court action)., the Court of Appeals of this circuit held that the district court’s refusal to stay its proceedings had been proper, because there was nothing in the second action “calculated to delay or impede the state courts in the exercise of their jurisdiction, nor to produce contention between courts. . . .” Id. at 31-32. We do not find this decision dispositive with respect to the present discretion of a federal district court to grant a stay of its proceedings. Lamar precedes not only the explicit formulation of the doctrine of forum non conveniens, but also later decisions in this circuit which seem to approve our discretion to stay in favor of precedent and parallel litigation of the same cause of action in the" }, { "docid": "370981", "title": "", "text": "court actions when a district court has dismissed a lawsuit for forum non conveniens arising in the same matters. The wording of our cases, however, is explicit, and refers to decisions on the merits. See Golden, 786 F.2d at 1427; Midkiff v. Tom, 725 F.2d 502, 504 (9th Cir.1984). Here, defendants have prevailed on a procedural point pertaining to the propriety of the prosecution of the foreign seamen’s lawsuit in a United States district court. No judgment on the merits has been rendered. The grant of the injunction against the foreign seamen prosecuting their lawsuits in state court violated the Anti-Injunction Act and was an abuse of discretion. The recent Fifth Circuit case of Exxon Corporation v. Chick Kam Choo, 817 F.2d 307 (5th Cir.1987) is inapposite. In Exxon, the surviving wife of a seaman who had been injured and died on board ship in Singapore, brought suit in the federal district court in Houston, Texas. The district court granted the defendants’ motion for summary judgment “as to Plaintiffs’ claims under the Jones Act, the Death on the High Seas Act, the Longshoremen’s and Harbor Workers Compensation Act, and the general maritime laws of the United States.” Exxon, 817 F.2d at 310 n. 4 (emphasis in original). Having thus disposed of these claims on the merits, the court nonetheless granted the defendants’ motion to dismiss “under the doctrine of forum non conveniens, ... without prejudice,” and subject to conditions which permitted the plaintiff to refile her suit in Singapore. Id. The judgment permanently enjoined the plaintiff from prosecuting any action against the defendants in the courts of Texas or any other state, arising out of or related to the death of the plaintiff’s husband on board ship in Singapore. The plaintiff did not appeal this judgment and it became final. She then attempted to pursue, against the defendants in the state court in Houston, Texas, the same claims she had filed against them in the federal district court in Houston. The defendants filed a new suit in federal court in Houston to enjoin the state proceeding. The district court granted" }, { "docid": "10793835", "title": "", "text": "district court found that the Pennsylvania requirement that death and survival actions be brought together in order to avoid duplication of damages, conferred upon the defendant substantive protection, available to him in a consolidated trial in state court. Finding that all rights of the parties were comprehended in the state action, that no earlier adjudication was likely in the federal court, and that the plaintiff would not be prejudiced by a stay of the federal proceeding, the court granted a stay until a reasonable time should elapse for conclusion of the two actions in the state court. On appeal to the Court of Appeals for the Third Circuit, the plaintiff argued that the order to stay was “in substance a permanent stay since the conclusion of the State court litigations will in all probability render the suit at bar res judicata and that therefore the stay order is tantamount to a dismissal of the case at bar.” 266 F.2d at 870. Rejecting this argument, the Court stated: “We cannot say that the order appealed from surely will result in the case becoming res judicata by reason of an adjudication of the case or cases now pending in the Court of Common Pleas. The cases in the Court of Common Pleas might, perhaps, be dismissed by that court for reasons not related to the merits of the actions. To treat the order appealed from as the equivalent of a dismissal would compel this court to speculate on the possible or probable course of the litigations in the Pennsylvania State tribunal. This we should not do.” Holding that the stay was therefore not a final order under the provisions of 28 U.S.C. § 1291, and that the Circuit Court did not possess jurisdiction to reverse the order appealed from, the Court, per Biggs, C. J., dismissed the appeal as improvidently taken. We do not believe that Amy should be construed as a strictly jurisdictional determination which would imply disapproval of the district court’s stay, if reviewed upon a petition for a writ of mandamus. Rather, we conclude that the Court of Appeals" }, { "docid": "17517109", "title": "", "text": "determination of litigations in the Court of Common Pleas. The bases of the motion were that on April 3, 1958, Arny and her sister had brought a separate action based on the Pennsylvania Wrongful Death Act, supra, in the Court of Common Pleas of Philadelphia County at No. 1407, March Term 1958 and that Girard Trust Corn Exchange Bank, as alternate executor of the Estate of James T. Haviland, in the Court of Common Pleas of Philadelphia County, at No. 1406, March Term 1958 brought a survival action against the defendant pursuant to Section 601 of the Fiduciaries Act of 1949, 20 P.S.Pa. § 320.601. The court below, refusing to dismiss the complaint in the instant suit, nonetheless stayed the proceedings pending the de termination of the litigations in the Court of Common Pleas within a reasonable time, basing its ruling on an asserted substantive right to avoid the duplication of damages. D.C.1958, 163 F.Supp. 953, 955. The appeal followed. Two jurisdictional questions are presented. The first raised, briefed and vigorously argued by the defendant, is that the plaintiff does not have the necessary jurisdictional standing or the capacity to maintain the suit. It is not necessary for this court to deal now with that issue. There is, however, another jurisdictional point, not raised by the defendant by way of motion to dismiss, but of which we must take cognizance. Is the order of the court below an appealable one? We conclude that it is not since it is not final. Section 1291, Title 28 U.S.C. The plaintiff-appellant argues that the order appealed from is more than a mere postponement of a trial for good cause but is in substance a permanent stay since the conclusion of the State court litigations will in all probability render the suit at bar res judicata and that therefore the stay order is tantamount to a dismissal of the case at bar. We cannot, however, review an order appealed from in the light of the semantic glosses which may be put upon it. We cannot say that the order appealed from surely will result" }, { "docid": "10793833", "title": "", "text": "27 (3d Cir. 1907). Although a final determination had not yet been rendered by the United States Supreme Court on a writ of error to the New Jersey Court of Errors and Appeals (which had affirmed the issurance of a writ of assistance to dispossess Lamar, plaintiff-appellee in the federal court action)., the Court of Appeals of this circuit held that the district court’s refusal to stay its proceedings had been proper, because there was nothing in the second action “calculated to delay or impede the state courts in the exercise of their jurisdiction, nor to produce contention between courts. . . .” Id. at 31-32. We do not find this decision dispositive with respect to the present discretion of a federal district court to grant a stay of its proceedings. Lamar precedes not only the explicit formulation of the doctrine of forum non conveniens, but also later decisions in this circuit which seem to approve our discretion to stay in favor of precedent and parallel litigation of the same cause of action in the state courts. Although not directly confronting the question of the existence of this discretion, the Court of Appeals for this circuit has held that a district court’s stay of proceedings is not equivalent to a dismissal or abandonment of jurisdiction, Arny v. Philadelphia Transportation Co., 266 F.2d 869 (3d Cir. 1959) (Biggs, C. J.); we believe that that decision, sub silentio, implies the existence of discretion under the circumstances of the instant case. In Arny v. Philadelphia Transportation Co., 163 F.Supp. 953 (E.D.Pa.1958); app. dismissed 266 F.2d 869 (3d Cir. 1959) (Biggs, C. J.), the district court granted defendant’s motion to stay proceedings in a wrongful death action brought by the plaintiff as trustee ad litem on behalf of her sister and herself. Several days after plaintiff had filed the action in the federal court, her sister filed a similar wrongful death action in the Pennsylvania Court of Common Pleas. In that same court, on that same day, the executor of the father’s estate brought a survival action arising out of the same accident. The" } ]

[ { "docid": "6153835", "title": "", "text": "trial, rendering summary judgment improper. IV. The district court’s order granting summary judgment for lack of jurisdiction over Ms. Vickers’ claim of negligent hiring, training and supervision is affirmed. However, because we find that the discretionary function exception does not apply to the claim that the INS was negligent for failing to investigate the shooting and that sufficient question of facts remain as to whether the INS’ negligence in failing to investigate was the cause of Ms. Vickers’ injury, we conclude that summary judgment was improper. Therefore, the district court’s order is affirmed in part and reversed in part, and this case is remanded for further proceedings consistent with this opinion. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. . The INS investigators concluded that Mr. Kendalla lied during his interview, and Ms. Callada-Ramirez told the truth in hers, about almost every detail of the relationship between the two. There was no specific finding about the truth of Mr. Kendalla's statement that he had not hit Ms. Callada-Ramirez because that allegation was not investigated fur ther and was not a basis of the proposed termination of Mr. Kendalla. . Although Ms. Callada-Ramirez did not expressly state that the revolver in question was Mr. Kendalla’s Service-issued revolver, the record as a whole indicates that Mr. Kendalla was able to and did take his Service-issued . revolver home with him, and there is no indication that he had any other revolver (although he did have a rifle). In context, the interrogators had every reason to believe that Ms. Callada-Ramirez, a former detainee, was referring to Mr. Kendalla’s Service-issued revolver when she spoke of \"his revolver.” . INS policies expressly allow the Service to excuse employees from quarterly training \"for any authorized absence from the officer's official duty station.” . There is nothing in the record that indicates the investigators did not believe Ms. Callada-Ramirez's account of the shooting. Indeed, the record makes clear that the investigators did not believe Mr. Kendalla, and found Ms. Callada-Ramirez's account of events to be true, with respect to every aspect" } ]

[ { "docid": "6153818", "title": "", "text": "contends, investigation into or reporting of Ms. Callada-Ramirez’s allegations was mandatory. In an interview with INS investigators, Ms. Callada-Ramirez reported that during a fight with Mr. Kendalla, she had fired his weapon at him and he had fired it at her. The statement at least put the INS on notice that Mr. Kendalla’s Service-issued revolver may have been fired in an aggressive or reckless manner during a domestic dispute by one or both disputants. The statutory authority for INS enforcement personnel, including detention enforcement officers, to carry and use firearms provides that such usage must be governed by “regulations prescribed by the Attorney General.” 8 U.S.C. § 1357(a)(5). According to the regulations which were issued pursuant to that statutory directive, such officers may use their firearms only if they have “reasonable ground to believe that such force is necessary to protect the designated immigration officer or other persons from the present danger of death or serious bodily harm.” 8 C.F.R. § 287.8(a)(2). Any alleged violation of that standard, according to INS regulations, is to “be investigated expeditiously.” 8 C.F.R. § 287.10(a). The regulations also direct the INS Commissioner to promulgate guidelines for investigating shooting incidents involving an INS officer. 8 C.F.R. § 287.9(b). The guidelines the Commissioner promulgated make clear that both on-duty and off-duty shootings are of concern, and are investigated. The INS Administrative Manual provides, for example, that “All incidents involving the discharge of a firearm which occurs during non-duty hours and involve[s] ... [a]ny discharge of a Service-issued or approved firearm except during recreational or sporting activities” are subject to the reporting and investiga tion requirements. INS Administrative Manual 4210 § 8(A)(2). The Manual also specifies that after an employee reports an incident, the appropriate official' — selected as specified in the manual — is to “immediately initiate the local Service investigation of the shooting incident.” Id. at § 6(B)(2). The INS maintains that these reporting and investigation requirements only require employees on the scene of a shooting incident, not any other INS employee who learns of the shooting incident, to report it, and — by implication" }, { "docid": "6153803", "title": "", "text": "BERZON, Circuit Judge: After a domestic argument, Akanni Ken-dalla, a detention enforcement officer with the Immigration and Naturalization Service (INS), shot and seriously injured Miriam Vickers, another INS employee and his former wife, with his Service-issued revolver. Ms. Vickers filed this action under the Federal Tort Claims Act, (FTCA), 28 U.S.C. § 2671 et seq., claiming that the United States should be held liable for her injuries. She contends that the INS was negligent in supervising and retaining Mr. Kendalla as a detention officer entitled to carry a Service-issued firearm, and in failing to investigate an alleged shooting incident involving Mr. Kendalla and a former girlfriend. As a result of these negligent actions by INS employees acting within the scope of their employment, Ms. Vick-ers maintains, Mr. Kendalla was in possession of the gun he used to shoot her, a gun he otherwise would not, and should not, have had. The INS moved for summary judgment on the ground that its challenged conduct was a matter of choice or judgment and therefore within the FTCA discretionary function exception to government liability for torts, 28 U.S.C. § 2680(a), and also on the ground that its negligence, if any, was not a legal cause of Ms. Vickers’ injuries. Ms. Vickers countered that the discretionary function exception shields none of the challenged conduct and that under California law she is entitled to a trial on the causation question. The district court granted the INS’s motion on both grounds, and Ms. Vickers appealed. I. Mr. Kendalla and Ms. Vickers both began working for the INS in 1991, at the Terminal Island Detention Center in San Pedro, California. They soon met and began a personal relationship, and, in December 1992, they married. The marriage ended in divorce after ten months. Thereafter, the INS found after an investigation, Mr. Kendalla began a relationship with Mercedes Callada-Ramirez, an inmate under Mr. Kendalla’s guard at Terminal Island. The investigation, triggered by a complaint Ms. Callada-Ramirez filed in December 1994, further revealed the following facts, not here contested: On at least two occasions during her detention, Mr. Kendalla released" }, { "docid": "6153823", "title": "", "text": "his gun,” that “that would be something that would probably be turned over to office of internal affairs” (to which, it appears, that same investigator was assigned during the Ken-dalla investigation). Critically, he did not suggest at any point that the reason he did not investigate the shooting incident was because Mr. Kendalla had not reported it. Moreover, Beverly Wilson, who was a deputy district director at the time of the Callada-Ramirez complaint and drafted for Mr. Looney the recommendation that Mr. Kendalla be terminated on account of the complaint, testified that Ms. Callada-Ramirez’s shooting allegations, had she known of them, would have given her cause for concern and would have violated agency policy governing the conduct of detention enforcement officers. Ms. Wilson also stated that, had she known of the shooting allegation, that may have led to “additional investigation into the allegation” at the time the INS reissued Mr. Kendalla his firearm. Again, Ms. Wilson did not in any way indicate that the INS’s firearms reporting and investigation policy was simply inapplicable because Mr. Ken-dalla did not report the incident. In sum, although INS investigators undoubtedly enjoy discretion in the conduct of an investigation, this discretion does not extend to the question of whether to report to superiors or to investigate at all an allegation of misuse of Service-issued firearms. The failure to report or to investigate therefore constituted a failure to follow the mandatory requirements proscribed by agency regulations as implemented by policy guidelines. Since those regulations and guidelines required investigation and reporting action in the instant ease, the FTCA’s discretionary function exception does not apply. See Gaubert, 499 U.S. at 322, 111 S.Ct. 1267. Because we conclude that the decision to investigate the shooting incident was not a matter of judgment or choice, we need not proceed to the second part of the FTCA test and determine whether that judgment or choice was of the type Congress intended to exclude. See Fang v. United States, 140 F.3d 1238, 1241 (9th Cir.1998). Rather, we can conclude without more that the INS has not, at the summary judgment stage," }, { "docid": "6153812", "title": "", "text": "the discretionary function exception, so we consider in turn whether each claim is thus barred. A. Ms. Vickers first charges that the INS negligently supervised and retained Mr. Kendalla as a detention enforcement officer, citing a series of alleged negligent decisions affecting Mr. Kendalla’s employment privileges and status. In particular, the INS allowed Mr. Kendalla to carry a gun although he had missed his most recent round of firearms testing. Furthermore, the INS did not dismiss Mr. Kendalla in light of Ms. Callada-Ramirez’s allegations, even though his INS supervisor had determined more than a year before the Vickers shooting that the Callada-Ramirez allegations that had been investigated were true, and had begun proceedings to terminate Mr. Kendalla. The applicable regulations governing the use of firearms by INS agents require that Service officers carrying handguns attend and pass a quarterly handgun qualification course. Mr. Kendalla had routinely participated in the course while working for the INS, but the INS excused him when it withdrew his gun during the Callada-Ra-mirez investigation, and again after it reissued the gun (because he had undergone minor surgery two weeks before the course began). Although the INS scheduled Mr. Kendalla to attend the next quarterly course in March 1996, the agency removed him from duty and took his gun from him after he shot Ms. Vickers in February. This court and others have held that decisions relating to the hiring, training, and supervision of employees usually involve policy judgments of the type Congress intended the discretionary function exception to shield. See Gager v. United States, 149 F.3d 918, 920-22 (9th Cir.1998). See also Nurse v. United States, 226 F.3d 996 (9th Cir.2000); Burkhart v. Washington Metropolitan Area Transit Authority, 112 F.3d 1207, 1216-17 (D.C.Cir.1997); Tonelli v. United States, 60 F.3d 492, 496 (8th Cir.1995); Richman v. Straley, 48 F.3d 1139, 1146 (10th Cir.1995); Attallah v. United States, 955 F.2d 776, 784-85 (1st Cir.1992). That understanding applies to the contention that the INS negligently trained and supervised Mr. Kendalla with regard to his use of firearms. The purpose of the handgun qualification course is to insure the" }, { "docid": "6153830", "title": "", "text": "in this case, a reasonable person could conclude that the policy behind the INS’s weapons investigation procedure was to ensure that only qualified personnel carry service weapons and that they only be used for authorized purposes. A fact finder could therefore reasonably conclude that the failure to follow the INS procedures in the instant case caused Mr. Kendalla to have a gun he would not otherwise have had. B. The question then becomes whether, under California law, a fact finder could find that the fact that Mr. Kendal-la had an INS-issued gun was a cause-in-fact and proximate cause of Ms. Vickers’ injury. The answer, we conclude, is yes. The Braman court noted that the “question of causation in fact can be framed in a variety of ways.” Id. at 356, 33 Cal.Rptr.2d 608. For example, a trier-of-fact might ask whether Mr. Kendalla would have fired a shot at Ms. Vickers if the INS had not reissued his service revolver, or whether instead he might have “cooled-off ’ had he not had a gun at his fingertips. A fact finder might consider whether the INS’s failure to investigate and withhold reissuance of the service revolver was a substantial factor increasing the likelihood that Mr. Kendalla would use the gun to shoot at Ms. Vickers. Or the question at trial might be framed as whether the INS could have foreseen that reissuing the service revolver to Mr. Kendalla posed a danger to others and that he might again use the gun in a reckless manner. Id. Considering a similar set of approaches to the causation inquiry, the Braman court concluded that whichever way one framed the causation question in the case before it, reasonable persons might answer yes. Braman therefore found that there was a viable theory of liability for a jury. See id. Similarly, we conclude that the parallel causation questions raised in this case might also be answered affirmatively and thus set aside the grant of summary judgment. Mr. Kendalla fired the shot with his service weapon, which, according to Ms. Callada Ramirez, he had misused before in similar circumstances." }, { "docid": "6153826", "title": "", "text": "dispute the absence of causality.” See Constance B. v. State of California, 178 Cal.App.3d 200, 207-08, 223 Cal.Rptr. 645 (Cal.Ct.App.1986); Braman v. State of California, 28 Cal.App.4th 344, 356, 33 Cal.Rptr.2d 608 (Cal.Ct.App.1994). California applies the “substantial factor” test of legal causation. See Vesely v. Sager, 5 Cal.3d 153, 163, 95 Cal.Rptr. 623, 486 P.2d 151 (Cal.1971) (“[A]n actor may be liable if his negligence is a substantial factor in causing an injury.”) So, if the question whether “the actor’s conduct [was] a substantial factor in bringing about the plaintiffs harm” is “open to reasonable difference of opinion,” Constance B., 178 Cal.App.3d at 210, 223 Cal.Rptr. 645, (quoting Restatement Second of Torts, § 434(12)), summary judgment was improper. A. Whether a proper investigation into Ms. Callada-Ramirez’s firearms allegations would have resulted in a decision by the INS resulting in a refusal to reissue Mr. Kendalla his service revolver are questions of fact which, on the present record, there was no basis for resolving against Ms. Vickers, the non-moving party. See Wong v. Regents of the Univ. of Cal., 192 F.3d 807, 817 (9th Cir.1999) (holding that on summary judgment, the court should construe “all evidence and reasonable inferences it creates in the light most favorable to the non-moving party”); Sabow, 93 F.3d at 1450 (noting that in the absence of clear facts to the contrary, the district court should not dismiss a complaint on summary judgment). Ms. Vickers contends, not unreasonably, that had the INS investigated the earlier shooting and confirmed Ms. Callada-Ra-mirez’s report, it would not have reissued the weapon prior to the February 1996 domestic dispute that ended with her being shot. The present record permits the inference that the INS took the weapon from Mr. Kendalla in the first place because of concerns its investigation raised about his suitability to be in an enforeement position entitling him to carry a firearm. Evidence of his reckless use of a firearm would only have exacerbated those concerns, and quite likely have delayed or prevented his return to an enforcement position triggering issuance of a firearm. The fact that Mr." }, { "docid": "6153831", "title": "", "text": "fingertips. A fact finder might consider whether the INS’s failure to investigate and withhold reissuance of the service revolver was a substantial factor increasing the likelihood that Mr. Kendalla would use the gun to shoot at Ms. Vickers. Or the question at trial might be framed as whether the INS could have foreseen that reissuing the service revolver to Mr. Kendalla posed a danger to others and that he might again use the gun in a reckless manner. Id. Considering a similar set of approaches to the causation inquiry, the Braman court concluded that whichever way one framed the causation question in the case before it, reasonable persons might answer yes. Braman therefore found that there was a viable theory of liability for a jury. See id. Similarly, we conclude that the parallel causation questions raised in this case might also be answered affirmatively and thus set aside the grant of summary judgment. Mr. Kendalla fired the shot with his service weapon, which, according to Ms. Callada Ramirez, he had misused before in similar circumstances. There are factual questions in dispute about the availability of other guns in the house, but the bottom line, both in Braman and here, is that the shooter used a gun which he arguably should not have had. The fact that Mr. Kendalla had his own Service-issued weapon in his possession at the time of the domestic dispute arguably at least increased the likelihood that he would use a gun violently, and that increase in likelihood of harm is sufficient for tort liability. See, e.g., Bigbee v. Pacific Tel. & Tel. Co., 34 Cal.3d 49, 192 Cal.Rptr. 857, 665 P.2d 947 (Cal.1983). Finally, if at trial it were established that the INS should have known that Mr. Kendalla had used the gun recklessly in the past, then the conclusion that the INS should have foreseen that he might use it in a similar fashion in the future could follow. Because the causation inquiry, however framed, could be answered in the affirmative, summary judg ment was improper. As to the proximate cause or foreseeability aspect of" }, { "docid": "6153807", "title": "", "text": "allegations of on-duty and off-duty misconduct by Mr. Kendalla, including her allegations of sexual encounters during her detention at Terminal Island and of the personal and sexual relationship between the two after her release from detention. The INS report did not, however, include any reference to the alleged shooting incident. After the investigators presented the report, Donald Looney, INS deputy district director, reviewed the report and concluded that the INS should terminate Mr. Kendalla from his position for noncompliance with INS policies and instructions and for engaging in conduct unbecoming of a detention enforcement officer. In November 1995, while the termination recommendation was still under consideration, the INS, for reasons not explained in the record, returned Mr. Ken-dalla to his duties and reissued his service weapon. In the meantime, Ms. Vickers and Mr. Kendalla began living with each other once more. The reconciliation, however, ended in tragedy: After an argument in February 1996, Mr. Kendalla shot Ms. Vickers in the back with his Service-issued revolver. Ms. Vickers sustained serious injuries, some of which may require lifelong care. Mr. Kendalla was arrested following the shooting, and the INS finally dismissed him from his position. The district court considered Ms. Vick-ers’ tort claims against the INS in light of the FTCA’s discretionary function exception, holding that the exception applies and bars the action. In an alternative holding, the district court decided that even if the INS was negligent and its negligence is actionable under the FTCA, its negligent acts and omissions did not, as a matter of law, cause Ms. Vickers’ injuries because, among other reasons, Mr. Kendalla could have shot Ms. Vickers with another gun. The court therefore concluded that her claim failed as a matter of law and granted the INS’s motion for summary judgment. This appeal followed. II. The Federal Torts Claims Act is a limited waiver of the United States’ traditional sovereign immunity, authorizing certain civil tort suits against the government for monetary damages. See 28 U.S.C. §§ 2671-2680. Specifically, the FTCA grants federal courts jurisdiction to hear claims for damages for injury or loss of property, or" }, { "docid": "6153804", "title": "", "text": "discretionary function exception to government liability for torts, 28 U.S.C. § 2680(a), and also on the ground that its negligence, if any, was not a legal cause of Ms. Vickers’ injuries. Ms. Vickers countered that the discretionary function exception shields none of the challenged conduct and that under California law she is entitled to a trial on the causation question. The district court granted the INS’s motion on both grounds, and Ms. Vickers appealed. I. Mr. Kendalla and Ms. Vickers both began working for the INS in 1991, at the Terminal Island Detention Center in San Pedro, California. They soon met and began a personal relationship, and, in December 1992, they married. The marriage ended in divorce after ten months. Thereafter, the INS found after an investigation, Mr. Kendalla began a relationship with Mercedes Callada-Ramirez, an inmate under Mr. Kendalla’s guard at Terminal Island. The investigation, triggered by a complaint Ms. Callada-Ramirez filed in December 1994, further revealed the following facts, not here contested: On at least two occasions during her detention, Mr. Kendalla released Ms. Cal-lada-Ramirez from her cell while he was working the night shift. They then stole away to the detention center’s processing and segregation area where they engaged in sexual relations. When the INS released Ms. Callada-Ramirez from detention to her father in New York, Mr. Ken-dalla encouraged her to come live with him and provided her with a ticket so that she could return to California. She accepted his offer and the two lived together in Long Beach until Mr. Kendalla left Ms. Callada-Ramirez in November 1994. During the investigation of her complaint, Ms. Callada-Ramirez also related to INS investigators a physical altercation that occurred while she was living with Mr. Kendalla after her release: Q: O.K., beginning of November 1994, what happen [sic] then? A [Ms. Callada-Ramirez]: He was being unfaithful. We had several fights. I shot at him with his revolver. Q: You shot at him? A: Yes, and he shot at me, we hit each other.... Q: When you shot at him, was it with his own revolver? A: Yes.... Q: Did" }, { "docid": "6153825", "title": "", "text": "met its burden of demonstrating that the discretionary function exception to the FTCA barred Ms. Vickers’ claim on this theory of negligence. III. We next turn to the question of causation. Ms. Vickers contends that had the INS conducted an investigation of Ms. Cal-lada-Ramirez’s firearms allegations against Mr. Kendalla and found that his INS-issued revolver had indeed been fired during a domestic dispute, the agency would either have terminated Mr. Kendal-la or, at least, not have reissued the gun. Since Mr. Kendalla later used that revolver to shoot Ms. Vickers, she concludes that the INS was legally responsible for her injury. Ms. Vickers’ argument raises two questions. First, would an investigation into the alleged Callada-Ramirez shooting incident have resulted in the removal of Mr. Kendalla’s Service-issued revolver by the time of the Vickers shooting? Second, was Mr. Kendalla’s possession of the revolver a cause in fact and proximate cause of Ms. Vickers’ injury? We begin from the premise that under California law, the basic causation-related issues involve questions of fact, unless “reasonable [persons] will not dispute the absence of causality.” See Constance B. v. State of California, 178 Cal.App.3d 200, 207-08, 223 Cal.Rptr. 645 (Cal.Ct.App.1986); Braman v. State of California, 28 Cal.App.4th 344, 356, 33 Cal.Rptr.2d 608 (Cal.Ct.App.1994). California applies the “substantial factor” test of legal causation. See Vesely v. Sager, 5 Cal.3d 153, 163, 95 Cal.Rptr. 623, 486 P.2d 151 (Cal.1971) (“[A]n actor may be liable if his negligence is a substantial factor in causing an injury.”) So, if the question whether “the actor’s conduct [was] a substantial factor in bringing about the plaintiffs harm” is “open to reasonable difference of opinion,” Constance B., 178 Cal.App.3d at 210, 223 Cal.Rptr. 645, (quoting Restatement Second of Torts, § 434(12)), summary judgment was improper. A. Whether a proper investigation into Ms. Callada-Ramirez’s firearms allegations would have resulted in a decision by the INS resulting in a refusal to reissue Mr. Kendalla his service revolver are questions of fact which, on the present record, there was no basis for resolving against Ms. Vickers, the non-moving party. See Wong v. Regents of the" }, { "docid": "6153811", "title": "", "text": "policy specifically prescribes a course of action for an employee to follow.” Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). If choice or judgment is exercised, the second inquiry is whether that choice or judgment is of the type Congress intended to exclude from liability — that is, whether the choice or judgment was one involving social, economic or political policy. Id. Our findings on these questions are crucial in this matter, for if we decide the exception applies to Ms. Vickers’ claims, we must dismiss her appeal for lack of jurisdiction. See Sigman v. United States, 217 F.3d 785, 793 (9th Cir.2000); In re Glacier Bay, 71 F.3d 1447, 1450 (9th Cir.1995). Ms. Vickers raises two distinct tort claims against the INS on this appeal. First, she contends that the INS negligently supervised and retained Mr. Ken-dalla. Second, she argues that the INS negligently failed to conduct an investigation into the alleged misuse of Mr. Kendal-la’s Service-issued firearm. The INS counters that both claims are barred by the discretionary function exception, so we consider in turn whether each claim is thus barred. A. Ms. Vickers first charges that the INS negligently supervised and retained Mr. Kendalla as a detention enforcement officer, citing a series of alleged negligent decisions affecting Mr. Kendalla’s employment privileges and status. In particular, the INS allowed Mr. Kendalla to carry a gun although he had missed his most recent round of firearms testing. Furthermore, the INS did not dismiss Mr. Kendalla in light of Ms. Callada-Ramirez’s allegations, even though his INS supervisor had determined more than a year before the Vickers shooting that the Callada-Ramirez allegations that had been investigated were true, and had begun proceedings to terminate Mr. Kendalla. The applicable regulations governing the use of firearms by INS agents require that Service officers carrying handguns attend and pass a quarterly handgun qualification course. Mr. Kendalla had routinely participated in the course while working for the INS, but the INS excused him when it withdrew his gun during the Callada-Ra-mirez investigation, and again after it reissued the" }, { "docid": "6153834", "title": "", "text": "by a plaintiff who was struck while in the phone booth by a negligent driver who veered off the road); Landeros v. Flood, 17 Cal.3d 399, 411-12, 131 Cal.Rptr. 69, 551 P.2d 389 (Cal.1976) (allowing a suit claiming medical malpractice to go forward against doctors who failed to properly diagnose “battered child syndrome” and report child abuse to state authorities before subsequent beatings by the parents caused permanent injury to the child); Weirum v. RKO General Inc., 15 Cal.3d 40, 47, 123 Cal.Rptr. 468, 539 P.2d 36 (Cal.1975) (allowing a suit claiming reckless endangerment to go forward against a radio station that organized a game for listeners that allegedly induced two drivers to engage in a high speed chase); see also, Braman, 28 Cal.App.4th at 355-56, 33 Cal.Rptr.2d 608. The underlying criminal act that caused Ms. Vickers’ injury was Mr. Kendalla’s unlawful use of a firearm. By allowing Mr. Kendalla to carry that firearm, the INS can certainly be said to have increased the risk of the criminal act. This again is a question for trial, rendering summary judgment improper. IV. The district court’s order granting summary judgment for lack of jurisdiction over Ms. Vickers’ claim of negligent hiring, training and supervision is affirmed. However, because we find that the discretionary function exception does not apply to the claim that the INS was negligent for failing to investigate the shooting and that sufficient question of facts remain as to whether the INS’ negligence in failing to investigate was the cause of Ms. Vickers’ injury, we conclude that summary judgment was improper. Therefore, the district court’s order is affirmed in part and reversed in part, and this case is remanded for further proceedings consistent with this opinion. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION. . The INS investigators concluded that Mr. Kendalla lied during his interview, and Ms. Callada-Ramirez told the truth in hers, about almost every detail of the relationship between the two. There was no specific finding about the truth of Mr. Kendalla's statement that he had not hit Ms. Callada-Ramirez because" }, { "docid": "6153817", "title": "", "text": "a reasonable time on the Kendalla termination recommendation, Nurse, Miller and Gaubert require that we find that the decision concerning the timing of the final termination decision comes within the FTCA’s discretionary function exception. See also Varig Airlines, 467 U.S. at 817, 104 S.Ct. 2755 (holding that FAA decision to use “spot-check” system to encourage compliance with aircraft lavatory regulations fell within the discretionary function exception). B. Ms. Vickers also contends that the decision whether or not to investigate or report to decision-makers Ms. Callada-Ra-mirez’s allegations that Mr. Kendalla’s Service-issued revolver was fired during a dispute between the two is not subject to the discretionary function exception because agency policy required both reporting and investigation of such incidents. In Sabow v. United States, this court recognized that the discretionary function exception protects agency decisions concerning the scope and manner in which it conducts an investigation so long as the agency does not violate a mandatory directive. 93 F.3d 1445, 1451-54 (9th Cir.1996). Thus, we can narrow the question before us to whether, as Ms. Vickers contends, investigation into or reporting of Ms. Callada-Ramirez’s allegations was mandatory. In an interview with INS investigators, Ms. Callada-Ramirez reported that during a fight with Mr. Kendalla, she had fired his weapon at him and he had fired it at her. The statement at least put the INS on notice that Mr. Kendalla’s Service-issued revolver may have been fired in an aggressive or reckless manner during a domestic dispute by one or both disputants. The statutory authority for INS enforcement personnel, including detention enforcement officers, to carry and use firearms provides that such usage must be governed by “regulations prescribed by the Attorney General.” 8 U.S.C. § 1357(a)(5). According to the regulations which were issued pursuant to that statutory directive, such officers may use their firearms only if they have “reasonable ground to believe that such force is necessary to protect the designated immigration officer or other persons from the present danger of death or serious bodily harm.” 8 C.F.R. § 287.8(a)(2). Any alleged violation of that standard, according to INS regulations, is to “be" }, { "docid": "6153805", "title": "", "text": "Ms. Cal-lada-Ramirez from her cell while he was working the night shift. They then stole away to the detention center’s processing and segregation area where they engaged in sexual relations. When the INS released Ms. Callada-Ramirez from detention to her father in New York, Mr. Ken-dalla encouraged her to come live with him and provided her with a ticket so that she could return to California. She accepted his offer and the two lived together in Long Beach until Mr. Kendalla left Ms. Callada-Ramirez in November 1994. During the investigation of her complaint, Ms. Callada-Ramirez also related to INS investigators a physical altercation that occurred while she was living with Mr. Kendalla after her release: Q: O.K., beginning of November 1994, what happen [sic] then? A [Ms. Callada-Ramirez]: He was being unfaithful. We had several fights. I shot at him with his revolver. Q: You shot at him? A: Yes, and he shot at me, we hit each other.... Q: When you shot at him, was it with his own revolver? A: Yes.... Q: Did he shoot at you? Did he hit you or something? A: No, he hit me. When they later interviewed Mr. Ken-dalla, the investigators asked him whether he ever struck Ms. Callada-Ramirez; in reply, Mr. Kendalla insisted that “I never hit that wom[a]n.” There were no ques tions to Mr. Kendalla, however, about the shooting allegations, nor, as far as the record shows, was there any other attempt to investigate Ms. Callada-Ramirez’s story regarding the off-duty firing of Mr. Ken-dalla’s gun. The INS investigators deposed in this case offered no explanation of why they did not investigate the shooting incident, while INS managers testified that they would have considered the allegations, if reported to them, violations of Department of Justice policy governing the conduct of detention officers. During its inquiry into Ms. Kendalla’s relationship with Ms. Callada-Ramirez, the INS confiscated Mr. Kendalla’s service weapon and reassigned him to work in a Los Angeles office as a file clerk. In December 1994, the investigators filed a report concluding that there was adequate evidence to substantiate Ms. Callada-Ra-mirez’s" }, { "docid": "6153837", "title": "", "text": "of their relationship which — unlike the shooting incident — was investigated. . A necessary link in any chain of causation supporting liability on the failure-to-investigate theory is that had the INS investigated, it would have concluded that improper use of the INS-issued firearm had in fact occurred during the Callada-Ramirez/Kendalla domestic dispute. The record at this point contains only Callada-Ramirez’s statement to that effect, and a denial from Kendalla that he ever hit Callada-Ramirez. The investigators never specifically asked Kendalla about the gun allegation. Under these circumstances, there is at least a conflict in the evidence as to whether the improper gun use occurred, precluding summary judgment on that factual issue. And the plaintiff is entitled at this juncture to the inference that if the gun incident actually occurred, an INS investigation would have so concluded after investigation (as opposed to erroneously concluding that it did not occur). See Wong, 192 F.3d at 817. . There are various factual matters regarding the Vickers shooting that are not fleshed out in the summary judgment record but which the INS argues are pertinent to the ultimate causation question. Those matters include whether Ms. Vickers’ own service revolver was loaded, whether a shotgun found at the house by police was readily available to Mr. Kendalla, and whether Mr. Kendalla was acting in a moment of rage or in a premeditated manner. As these factual questions are still in dispute, they are not appropriate for summary judgment resolution. Erickson v. United States, 976 F.2d 1299, 1302 (9th Cir.1992)." }, { "docid": "6153822", "title": "", "text": "of a shooting incident which the involved employee did not but should have reported would entirely undercut the evident purpose of the guidelines — to assure that the INS investigates every nonrecrea-tional shooting incident involving Service personnel for compliance with INS firearms policy. The most sensible interpretation of the involved employee reporting requirement, instead, is that the requirement is an additional one, designed to make it more likely that shooting incidents will come to the attention of supervisory personnel, not to absolve INS personnel of the mandatory duty to report and investigate when the information surfaces in some other manner. The testimony of the INS investigators and supervisory personnel is consistent with this understanding of the regulations and policy guidelines. The investigator in charge of the investigation offered no explanation, when asked, as to why he did not investigate the shooting allegation, saying repeatedly that he had no idea why even Mr. Kendalla was not asked about the shooting allegation. The same investigator said that “if you’ve learned of an allegation that the employee shot his gun,” that “that would be something that would probably be turned over to office of internal affairs” (to which, it appears, that same investigator was assigned during the Ken-dalla investigation). Critically, he did not suggest at any point that the reason he did not investigate the shooting incident was because Mr. Kendalla had not reported it. Moreover, Beverly Wilson, who was a deputy district director at the time of the Callada-Ramirez complaint and drafted for Mr. Looney the recommendation that Mr. Kendalla be terminated on account of the complaint, testified that Ms. Callada-Ramirez’s shooting allegations, had she known of them, would have given her cause for concern and would have violated agency policy governing the conduct of detention enforcement officers. Ms. Wilson also stated that, had she known of the shooting allegation, that may have led to “additional investigation into the allegation” at the time the INS reissued Mr. Kendalla his firearm. Again, Ms. Wilson did not in any way indicate that the INS’s firearms reporting and investigation policy was simply inapplicable because Mr." }, { "docid": "6153824", "title": "", "text": "Ken-dalla did not report the incident. In sum, although INS investigators undoubtedly enjoy discretion in the conduct of an investigation, this discretion does not extend to the question of whether to report to superiors or to investigate at all an allegation of misuse of Service-issued firearms. The failure to report or to investigate therefore constituted a failure to follow the mandatory requirements proscribed by agency regulations as implemented by policy guidelines. Since those regulations and guidelines required investigation and reporting action in the instant ease, the FTCA’s discretionary function exception does not apply. See Gaubert, 499 U.S. at 322, 111 S.Ct. 1267. Because we conclude that the decision to investigate the shooting incident was not a matter of judgment or choice, we need not proceed to the second part of the FTCA test and determine whether that judgment or choice was of the type Congress intended to exclude. See Fang v. United States, 140 F.3d 1238, 1241 (9th Cir.1998). Rather, we can conclude without more that the INS has not, at the summary judgment stage, met its burden of demonstrating that the discretionary function exception to the FTCA barred Ms. Vickers’ claim on this theory of negligence. III. We next turn to the question of causation. Ms. Vickers contends that had the INS conducted an investigation of Ms. Cal-lada-Ramirez’s firearms allegations against Mr. Kendalla and found that his INS-issued revolver had indeed been fired during a domestic dispute, the agency would either have terminated Mr. Kendal-la or, at least, not have reissued the gun. Since Mr. Kendalla later used that revolver to shoot Ms. Vickers, she concludes that the INS was legally responsible for her injury. Ms. Vickers’ argument raises two questions. First, would an investigation into the alleged Callada-Ramirez shooting incident have resulted in the removal of Mr. Kendalla’s Service-issued revolver by the time of the Vickers shooting? Second, was Mr. Kendalla’s possession of the revolver a cause in fact and proximate cause of Ms. Vickers’ injury? We begin from the premise that under California law, the basic causation-related issues involve questions of fact, unless “reasonable [persons] will not" }, { "docid": "6153827", "title": "", "text": "Univ. of Cal., 192 F.3d 807, 817 (9th Cir.1999) (holding that on summary judgment, the court should construe “all evidence and reasonable inferences it creates in the light most favorable to the non-moving party”); Sabow, 93 F.3d at 1450 (noting that in the absence of clear facts to the contrary, the district court should not dismiss a complaint on summary judgment). Ms. Vickers contends, not unreasonably, that had the INS investigated the earlier shooting and confirmed Ms. Callada-Ra-mirez’s report, it would not have reissued the weapon prior to the February 1996 domestic dispute that ended with her being shot. The present record permits the inference that the INS took the weapon from Mr. Kendalla in the first place because of concerns its investigation raised about his suitability to be in an enforeement position entitling him to carry a firearm. Evidence of his reckless use of a firearm would only have exacerbated those concerns, and quite likely have delayed or prevented his return to an enforcement position triggering issuance of a firearm. The fact that Mr. Kendalla was suspended from his detention enforcement position immediately after the Vickers shooting also tends to show that, had the INS investigated and substantiated the Callada-Ra-mirez shooting incident, it would have taken prompt action resulting in removal of the firearms at that earlier time. California case law supports Ms. Vick-ers’ theory of causation in this regard. In Braman, the California Court of Appeal considered a wrongful death complaint brought by a widow whose husband committed suicide. The husband had a history of mental illness and had been deemed “a danger to himself and to others” under the provisions of California’s Welfare and Institutions Code. Braman, 28 Cal.App.4th at 347, 33 Cal.Rptr.2d 608. He nonetheless purchased a Rossi .38-caliber revolver from a gun shop in Oakland which he used to fatally shoot himself. Pursuant to California’s Dangerous Weapons Control Act (the “Act”), the husband waited 15 days to take possession of the handgun. See id. During that time, the Act obligated the state to conduct a background check to determine whether he was eligible to purchase" }, { "docid": "6153816", "title": "", "text": "S.Ct. 2755. And under the FTCA, to come within the discretionary function exception, “the challenged decision need not actually be grounded in policy considerations so long as it is, by its nature, susceptible to a policy analysis.” Nurse, 226 F.3d at 1001 (internal citations omitted); Miller v. United States, 163 F.3d 691, 593 (9th Cir.1998); see also Gaubert, 499 U.S. at 325, 111 S.Ct. 1267 (“The focus of the inquiry is not on the agent’s subjective intent in exercising the discretion conferred by the statute or regulation, but on the nature of the actions taken and on whether they are susceptible to policy analysis.” (emphasis added)) Decisions concerning which termination recommendations to review when and in what order, particularly when faced with staffing shortages and consequent necessary delays, are ones that involve choice or judgment. Those prioritizing decisions are, or should be, “susceptible to policy analysis.” Since this matter is one “susceptible to policy analysis” and we have no indication on the record that the INS violated any mandatory policy in failing to act within a reasonable time on the Kendalla termination recommendation, Nurse, Miller and Gaubert require that we find that the decision concerning the timing of the final termination decision comes within the FTCA’s discretionary function exception. See also Varig Airlines, 467 U.S. at 817, 104 S.Ct. 2755 (holding that FAA decision to use “spot-check” system to encourage compliance with aircraft lavatory regulations fell within the discretionary function exception). B. Ms. Vickers also contends that the decision whether or not to investigate or report to decision-makers Ms. Callada-Ra-mirez’s allegations that Mr. Kendalla’s Service-issued revolver was fired during a dispute between the two is not subject to the discretionary function exception because agency policy required both reporting and investigation of such incidents. In Sabow v. United States, this court recognized that the discretionary function exception protects agency decisions concerning the scope and manner in which it conducts an investigation so long as the agency does not violate a mandatory directive. 93 F.3d 1445, 1451-54 (9th Cir.1996). Thus, we can narrow the question before us to whether, as Ms. Vickers" }, { "docid": "6153806", "title": "", "text": "he shoot at you? Did he hit you or something? A: No, he hit me. When they later interviewed Mr. Ken-dalla, the investigators asked him whether he ever struck Ms. Callada-Ramirez; in reply, Mr. Kendalla insisted that “I never hit that wom[a]n.” There were no ques tions to Mr. Kendalla, however, about the shooting allegations, nor, as far as the record shows, was there any other attempt to investigate Ms. Callada-Ramirez’s story regarding the off-duty firing of Mr. Ken-dalla’s gun. The INS investigators deposed in this case offered no explanation of why they did not investigate the shooting incident, while INS managers testified that they would have considered the allegations, if reported to them, violations of Department of Justice policy governing the conduct of detention officers. During its inquiry into Ms. Kendalla’s relationship with Ms. Callada-Ramirez, the INS confiscated Mr. Kendalla’s service weapon and reassigned him to work in a Los Angeles office as a file clerk. In December 1994, the investigators filed a report concluding that there was adequate evidence to substantiate Ms. Callada-Ra-mirez’s allegations of on-duty and off-duty misconduct by Mr. Kendalla, including her allegations of sexual encounters during her detention at Terminal Island and of the personal and sexual relationship between the two after her release from detention. The INS report did not, however, include any reference to the alleged shooting incident. After the investigators presented the report, Donald Looney, INS deputy district director, reviewed the report and concluded that the INS should terminate Mr. Kendalla from his position for noncompliance with INS policies and instructions and for engaging in conduct unbecoming of a detention enforcement officer. In November 1995, while the termination recommendation was still under consideration, the INS, for reasons not explained in the record, returned Mr. Ken-dalla to his duties and reissued his service weapon. In the meantime, Ms. Vickers and Mr. Kendalla began living with each other once more. The reconciliation, however, ended in tragedy: After an argument in February 1996, Mr. Kendalla shot Ms. Vickers in the back with his Service-issued revolver. Ms. Vickers sustained serious injuries, some of which may require" } ]

[ { "docid": "23250813", "title": "", "text": "First, the procurements were fully performed in less than two years after they were awarded. We have previously held that a period of two years is too short to complete judicial review of the lawfulness of the procurement. See Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 514-516, 31 S.Ct. 279, 55 L.Ed. 310 (1911). Second, it is reasonable to expect that the Department will refuse to apply the Rule of Two in a future procurement for the kind of services provided by Kingdomware. If Kingdomware’s interpretation of § 8127(d) is correct, then the Department must use restricted competition rather than procure on the open market. And Kingdomware, which has been' awarded many, previous contracts, has shown a reasonable likelihood that it would be awarded a future contract if its interpretation of § 8127(d) prevails. See Decl. of Corydon Ford Heard III ¶¶ 11-15 (explaining that the company continues to bid on similar contracts). Thus, we have jurisdiction because the same legal issue in this case is likely to recur, in future controversies between the same parties in circumstances where the period of contract performance is too short to allow full judicial review before performance is complete. Our interpretation of § 8127(d)’s requirements in this case will govern the Department’s future contracting. Ill On the merits, we hold that § 8127 is mandatory, not discretionary. Its text requires the Department to apply the Rule of Two to all contracting determinations and to award contracts to veteran-owned small businesses. The Act does not allow the Department to evade the Rule of Two on the ground that it has already met its contracting goals or on the ground that the Department has placed an order through the FSS. A In statutory construction, we begin “with the language of the statute.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). If the statutory language is unambiguous and “the statutory scheme is coherent and consistent”—as is the case here—“[t]he inquiry ceases.” Ibid. We hold that § 8127(d) unambiguously requires the Department to use the Rule of" } ]

[ { "docid": "1777999", "title": "", "text": "patented the land to William H. Cowie. The court’s analysis begins with the plain language of the 1875 Act and the words of the land patent given to Mr. Cowie. See Leocal v. Ashcroft, — U.S. -, -, 125 S.Ct. 377, 382, 160 L.Ed.2d 271 (2004) (“Our analysis begins with the language of the statute.”); Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, -, 124 S.Ct. 2466, 2477, 159 L.Ed.2d 355 (2004) (“As ‘in all statutory construction cases, we begin ... with the language of the statute.’ ”) (quoting Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450,122 S.Ct. 941,151 L.Ed.2d 908 (2002)); Duncan v. Walker, 533 U.S. 167, 172, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (“Our task is to construe what Congress has enacted ____ We begin, as always, with the language of the statute.”); Carter v. United States, 530 U.S. 255, 257, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000) (“[T]he Court’s inquiry begins with the textual product of Congress’ efforts, not with speculation as to the internal thought processes of its Members.”). The first step is “to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Barnhart v. Sigmon Coal Co., Inc., 534 U.S. at 450, 122 S.Ct. 941 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). The inquiry ceases “if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’” Id. (quoting Robinson v. Shell Oil Co., 519 U.S. at 340, 117 S.Ct. 843). In interpreting the plain meaning of the statute, it is the court’s duty, if possible, to give meaning to every clause and word of the statute. See TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441,151 L.Ed.2d 339 (2001) (“It is ‘a cardinal principle of statutory construction’ that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’ ”) (quoting Duncan v. Walker, 533 U.S. at" }, { "docid": "16806326", "title": "", "text": "agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. Only if “the statute is silent or ambiguous,” id. at 843, 104 S.Ct. 2778, “‘must [we] decide how much weight to accord an agency’s interpretation.’ ” McMaster v. United States, 731 F.3d 881, 889 (9th Cir.2013) (quoting Tualatin Valley Builders Supply, Inc. v. United States, 522 F.3d 937, 940 (9th Cir.2008)). EPA contends there is ambiguity or tension between two mandates in the Clean Air Act—one, requiring it to enforce current NAAQS and BACT requirements, 42 U.S.C. § 7475(a)(1), (3)-(4), and the other, requiring EPA to act on applications within one year, id. § 7475(c). More specifically, EPA argues that the statute does not specify what it should do when, as was the case here, it failed to act by the statutory deadline, and revised air standards have been promulgated since the deadline passed. Thus, the argument goes, EPA’s decision to grant Avenal Power the Permit is entitled to Chevron deference. Petitioners, on the other hand, insist that the statutory language is clear—EPA must enforce the regulations in effect at the time the Permit was issued. A We begin with the statute “ ‘to determine whether the language at issue has a plain and unambiguous meaning....’” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). In so inquiring, we must endeavor to read the Clean Air Act “ ‘as a symmetrical and coherent regulatory scheme,’ ” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 569, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995)), and “ ‘fit, if possible, all parts into a harmonious whole[.]’ ” Id. (quoting FTC v. Mandel Bros., Inc., 359 U.S. 385, 389, 79 S.Ct. 818, 3 L.Ed.2d 893 (1959)). The Clean Air Act states that “[n]o major emitting facility ... may be constructed ... unless”: (3) the owner" }, { "docid": "4361262", "title": "", "text": "motion to dismiss pursuant to subsection 707(b)(2). III. Analysis The Trustee challenges the Bankruptcy Court’s ruling that 11 U.S.C. § 707(b)(2) allows the Thomases to take a deduction for car ownership expense in the amount set forth in the Local Standards, even though the Thomases do not make any car payments. Because this appeal “raises a legal question regarding the proper interpretation of the Bankruptcy Code,” the Bankruptcy Court’s order is subject to de novo review. Jobin v. McKay (In re M & L Bus. Mach. Co.), 84 F.3d 1330, 1334-35 (10th Cir.1996); see also Travelers Ins. Co. v. Am. AgCredit Corp. (In re Blehm Land & Cattle Co.), 859 F.2d 137, 138 (10th Cir.1988) (bankruptcy court’s conclusions of law are subject to de novo review). The Court begins with the language of the particular statute at issue. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). The Court’s inquiry ceases if “the statutory language is unambiguous and the statutory scheme is coherent and consistent.” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (internal quotation omitted). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which the language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. 843. Subsection 707(b)(2) provides that, for purposes of calculating whether a presumption of abuse arises, the debtor’s expenses “shall be the debtor’s applicable monthly expense amounts specified under the National Standards and Local Standards.” 11 U.S.C. § 707(b)(2)(A)(ii)(I). The Thomases argue that the language “shall be the ... amounts specified under the ... Local Standards” means that a debtor is allowed the exact dollar figures found in the Standards ($471 and $332 in this case) without reference to whether the debtor actually makes car payments. The Trustee argues that the use of the word “applicable” reveals Congress’s intent to allow deductions for categories of expenses that apply to the particular debtor, and that therefore a debtor may take a transportation" }, { "docid": "16806327", "title": "", "text": "the statutory language is clear—EPA must enforce the regulations in effect at the time the Permit was issued. A We begin with the statute “ ‘to determine whether the language at issue has a plain and unambiguous meaning....’” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). In so inquiring, we must endeavor to read the Clean Air Act “ ‘as a symmetrical and coherent regulatory scheme,’ ” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (quoting Gustafson v. Alloyd Co., 513 U.S. 561, 569, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995)), and “ ‘fit, if possible, all parts into a harmonious whole[.]’ ” Id. (quoting FTC v. Mandel Bros., Inc., 359 U.S. 385, 389, 79 S.Ct. 818, 3 L.Ed.2d 893 (1959)). The Clean Air Act states that “[n]o major emitting facility ... may be constructed ... unless”: (3) the owner or operator of such facility demonstrates, as required pursuant to section 7410© of this title ... that emissions from construction or operation of such facility will not cause, or contribute to, air pollution in excess of any ... national ambient air quality standard in any air quality control region ... [and] (4) the proposed facility is subject to the best available control technology for each pollutant subject to regulation under this chapter emitted from, or which results from, such facility .... 42 U.S.C. § 7475(a)(3)-(4) (emphasis added). The referenced portion of § 74100'), in turn, provides: As a condition for issuance of any permit required by this subchapter, the owner or operator of 'each new or modified stationary source which is required to obtain such a permit must show to the satisfaction of the permitting authority that the technological system of continuous emission reduction which is to be used at such source will enable it to comply with the standards of perform-anee which are to apply to such source.... Id. § 74100) (emphasis added). The" }, { "docid": "1778000", "title": "", "text": "of its Members.”). The first step is “to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Barnhart v. Sigmon Coal Co., Inc., 534 U.S. at 450, 122 S.Ct. 941 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). The inquiry ceases “if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’” Id. (quoting Robinson v. Shell Oil Co., 519 U.S. at 340, 117 S.Ct. 843). In interpreting the plain meaning of the statute, it is the court’s duty, if possible, to give meaning to every clause and word of the statute. See TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441,151 L.Ed.2d 339 (2001) (“It is ‘a cardinal principle of statutory construction’ that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.’ ”) (quoting Duncan v. Walker, 533 U.S. at 173, 121 S.Ct. 2120); Williams v. Taylor, 529 U.S. 362, 404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (describing as a “cardinal principle of statutory construction” the rule that every clause and word of a statute must be given effect if possible). Similarly, the court must avoid an interpretation of a clause or word which renders other provisions of the statute inconsistent, meaningless, or superfluous. See Duncan v. Walker, 533 U.S. at 167, 121 S.Ct. 2120 (noting that courts should not treat statutory terms as “surplusage”). “[W]hen two statutes are capable of co-existence, it is the duty of the courts ... to regard each as effective.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 155, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976); see also Hanlin v. United States, 214 F.3d 1319, 1321, reh’g denied (Fed.Cir.2000). A court must not stray from the statutory definition of a term. See Whitfield v. United States, — U.S. -, -, 125 S.Ct. 687, 691, 160 L.Ed.2d 611 (2005) (It is a “settled principle of statutory construction that, absent" }, { "docid": "9286269", "title": "", "text": "the regulation.\" In re Sullivan , 362 F.3d 1324, 1326 (Fed. Cir. 2004) (first citing Auer , 519 U.S. at 461-62, 117 S.Ct. 905 ; then citing Bowles v. Seminole Rock & Sand Co. , 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945) (internal quotations omitted) ). Where an agency instead engages in \"interpretive\" rulemaking, at best, a lower level of deference might apply. See Mead , 533 U.S. at 227-29, 230-31, 121 S.Ct. 2164 (describing notice-and-comment as \"significant ... in pointing to Chevron authority\"); Reno v. Koray , 515 U.S. 50, 61, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995) (according \"some deference\" to an interpretive rule that did \"not require notice and comment\"). The Supreme Court has explained that \"[t]he fair measure of deference to an agency administering its own statute has been understood to vary with circumstances, and courts have looked to the degree of the agency's care, its consistency, formality, and relative expertness, and to the persuasiveness of the agency's position.\" Mead , 533 U.S. at 228, 121 S.Ct. 2164 (footnotes omitted) (citing Skidmore , 323 U.S. at 139-40, 65 S.Ct. 161 ). B. Interpreting § 315(b) We begin our analysis of the Board's application of § 315(b) by construing the provision. \"As in any case of statutory construction, our analysis begins with the language of the statute.\" Hughes Aircraft Co. v. Jacobson , 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999) (internal quotation marks omitted). \"The first step 'is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.' \" Barnhart v. Sigmon Coal Co. , 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (quoting Robinson v. Shell Oil Co. , 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ). We also \"must read the words 'in their context and with a view to their place in the overall statutory scheme.' \" King v. Burwell , --- U.S. ----, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (quoting FDA v. Brown &" }, { "docid": "22851009", "title": "", "text": "the child in private school.” Bd. of Educ. v. Tom F., 2005 WL 22866, at *3 (S.D.N.Y. Jan. 4, 2005). We disagree. As in all statutory interpretation cases, we begin with the language of the statute. Our first task “is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). Our inquiry ends, if the language of the statute is unambiguous and “the statutory scheme is coherent and consistent,” unless the case comes within the category of cases in which the result reached by applying the plain language is sufficiently absurd to override its unambiguous terms. Id. at 450, 459, 122 S.Ct. 941 (internal quotation marks and citation omitted); United States v. X-Citement Video Inc., 513 U.S. 64, 69, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994); Pub. Citizen v. United States Dep’t of Justice, 491 U.S. 440, 454, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989); Green v. Bock Laundry Mach. Co., 490 U.S. 504, 509, 109 S.Ct. 1981, 104 L.Ed.2d 557 (1989). If, however, the terms of a statute are ambiguous, “we resort to the canons of statutory construction to help resolve the ambiguity.” Gottlieb v. Carnival Corp., 436 F.3d 335, 337 (2d Cir.2006). Moreover, while the Supreme Court has said that it “rarely” invokes the need to avoid an absurd result to override the plain language of a statute, Barnhart, 534 U.S. at 459, 122 S.Ct. 941, we have long held that where a statute is ambiguous, it “should be interpreted in a way that avoids absurd results.” See, e.g., United States v. Dauray, 215 F.3d 257, 264 (2d Cir.2000). Whether a statute is plain or ambiguous “is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). We have applied a similar approach in determining whether a" }, { "docid": "19597773", "title": "", "text": "(Fed. Cir. 2003) (citing Auer , 519 U.S. at 461-62, 117 S.Ct. 905, and Bowles v. Seminole Rock & Sand Co. , 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945) ) ) (internal quotations omitted). Where an agency instead engages in \"interpretive,\" rather than \"formal,\" rulemaking, a lower level of deference might apply. See Mead , 533 U.S. at 230-31, 121 S.Ct. 2164 (describing notice-and-comment as \"significant ... in pointing to Chevron authority\"); Reno v. Koray , 515 U.S. 50, 61, 115 S.Ct. 2021, 132 L.Ed.2d 46 (1995) (according \"some deference\" to an interpretive rule that \"do[es] not require notice and comment\" (citations omitted) ). The Supreme Court has explained that \"[t]he fair measure of deference to an agency administering its own statute has been understood to vary with circumstances, and courts have looked to the degree of the agency's care, its consistency, formality, and relative expertness, and to the persuasiveness of the agency's position.\" Mead , 533 U.S. at 228, 121 S.Ct. 2164 (footnotes omitted) (citing Skidmore v. Swift & Co. , 323 U.S. 134, 139-40, 65 S.Ct. 161, 89 L.Ed. 124 (1944) ). 2. Chevron Step One We begin our analysis of the Board's interpretation of § 315(b) by construing the provision. \"As in any case of statutory construction, our analysis begins with the language of the statute.\" Hughes Aircraft Co. v. Jacobson , 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999) (internal quotation marks and citation omitted). \"The first step 'is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.' \" Barnhart v. Sigmon Coal Co., Inc. , 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (quoting Robinson v. Shell Oil Co. , 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ). In doing so, we \"must read the words 'in their context and with a view to their place in the overall statutory scheme.' \" King v. Burwell , -- U.S. ----, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (quoting" }, { "docid": "23503610", "title": "", "text": "that the forms that Ryan-Webster falsified here are “other documents” within the meaning of the first paragraph, I respectfully dissent from Parts III.A. and IV. of the panel’s opinion. I concur in the remainder of the opinion. In interpreting statutes, our goal “is always to ascertain and implement the intent of Congress.” Scott v. United States, 328 F.3d 132, 138 (4th Cir.2003). Accordingly, “[t]he first step of this process is to determine whether the statutory language has a plain and unambiguous meaning.” Id. at 139 (citing Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002)). If the statutory language is unambiguous and the statutory scheme is coherent and consistent, the inquiry ceases. Id. When assessing the ambiguity, or lack thereof, of statutory language, courts “generally give words their ordinary, contemporary, and common meaning.” Id. But, the language itself is not the sole determinant of meaning, or even of whether the language is ambiguous. Courts also must refer to “the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). At bottom, my colleagues’ error lies in their failure to abide by this principle of statutory construction. The majority’s analysis, ante at 359-363, has some persuasive appeal if one reads the first paragraph’s catch-all phrase in isolation: the phrase “other documents prescribed by statute or regulation for entry into ... the United States,” without any context, could plausibly be interpreted to cover application documents like the ETA-750 and the 1-140. 18 U.S.C.A. § 1546(a). These documents, as the majority correctly notes, are “prescribed by statute or regulation” and, although they do not themselves allow entry into the country, they are submitted as part of one of the avenues through which an immigrant might gain the right to lawfully “enter” the country. When read in context, however, the first paragraph’s reach is unambiguously narrower. Two canons of construction instruct us how properly to ascertain the meaning of statutory language from the" }, { "docid": "15211288", "title": "", "text": "concluded that “[i]f Congress believes that the regularly staggered terms should be among these protections, then, of course, it is free to make its intention explicit by including express language in the statute.” The United States and Kirsanow filed this appeal. II. Analysis This case involves a pure legal question of statutory interpretation. Our review of statutory interpretation by a district court is de novo. See, e.g., Butler v. West, 164 F.3d 634, 639 (D.C.Cir.1999). A. We begin our analysis with the language of the statute. See, e.g., Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 122 S.Ct. 941, 950, 151 L.Ed.2d 908 (2002). “Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989)). In determining the “plainness or ambiguity of statutory language” we refer to “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. at 846 (citing Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477, 112 S.Ct. 2589, 2595, 120 L.Ed.2d 379 (1992); McCarthy v. Bronson, 500 U.S. 136, 139, 111 S.Ct. 1737, 1740, 114 L.Ed.2d 194 (1991)). The disputed provision, 42 U.S.C. § 1975(c) provides: “The term of office of each member of the Commission shall be 6 years. The term of each member of the Commission in the initial membership of the Commission shall expire on the date such term would have expired as of September 30, 1994.” Appellants contend, contrary to the district court’s holding, that the language of the first sentence of § 1975(c) is ambiguous, as the expression “term of office” is subject to at least" }, { "docid": "2425316", "title": "", "text": "not an element, we affirm the district court. We review questions of statutory interpretation de novo, Holland v. Pardee Coal Co., 269 F.3d 424, 430 (4th Cir.2001), “begin[ning] with the language of the statute.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). We must first “determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Id. (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). Our “inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” Robinson, 519 U.S. at 340, 117 S.Ct. 843 (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)). Section 1015(a) makes it a crime to “knowingly make[] any false statement under oath, in any case, proceeding, or matter relating to, or under, or by virtue of any law of the United States relating to naturalization, citizenship, or registry of aliens.” 18 U.S.C.A. § 1015(a). “Nowhere does it further say that a material fact must be the subject of the false state ment or so much as mention materiality.” United States v. Wells, 519 U.S. 482, 490, 117 S.Ct. 921, 137 L.Ed.2d 107 (1997) (interpreting 18 U.S.C.A. § 1014, which prohibits “knowingly mak[ing] any false statement” in a loan application to a federally insured bank, and holding that materiality is not an element of § 1014). Moreover, none of the terms used in § 1015 have a common law meaning that includes a requirement of materiality. See id. at 490-91, 117 S.Ct. 921 (holding that the term “false statement” does not have any common law implication of materiality). Because the statutory language is clear, our inquiry is finished. Accordingly, we affirm Abuagla’s conviction for violation of § 1015(a). AFFIRMED" }, { "docid": "15211287", "title": "", "text": "to fill unexpired terms.” Second, the court noted that a staggering provision had been proposed, but not adopted by Congress in the 1994 Act. Third, the district court relied on the removal of the staggering and vacancy provisions from the 1983 Act, holding that “when Congress affirmatively deletes language which had been included in pre-existing legislation, then Congress means what it said.” Finally, the court rejected appellants’ argument that failure to maintain staggering would undermine “the bipartisan nature of the Commission as well as its integrity and credibility.” The court found “nothing to suggest that the absence of such a requirement would frustrate Congress’ purpose.” Although acknowledging that its ruling would eliminate “uniformly staggered terms,” the court opined that its decision would not result in the “complete elimination of all staggering.” Even so, the court reasoned that the “staggered term requirement was only one amongst a large constellation of protections that were introduced by the 1983 Act” and “[a]ll of these protections, except staggered terms, remain expressly included in the 1994 Act.” The district court concluded that “[i]f Congress believes that the regularly staggered terms should be among these protections, then, of course, it is free to make its intention explicit by including express language in the statute.” The United States and Kirsanow filed this appeal. II. Analysis This case involves a pure legal question of statutory interpretation. Our review of statutory interpretation by a district court is de novo. See, e.g., Butler v. West, 164 F.3d 634, 639 (D.C.Cir.1999). A. We begin our analysis with the language of the statute. See, e.g., Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 122 S.Ct. 941, 950, 151 L.Ed.2d 908 (2002). “Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997) (quoting United States v." }, { "docid": "2425315", "title": "", "text": "Affirmed by published opinion. Judge WILLIAMS wrote the opinion, in which Judge NIEMEYER and Judge TRAXLER joined. OPINION WILLIAMS, Circuit Judge: Jamal A. Abuagla appeals from his conviction for violation of 18 U.S.C.A. § 1015(a) (West 2000). On September 7, 1988, Abuagla was arrested for possession of a concealed firearm and spent 24 hours in jail. On August 13, 1990, the criminal charges for possession of a concealed firearm were dropped because Abuagla participated in a pre-trial intervention program. On November 11, 1995, Abuagla submitted an application for naturalization in which he answered “no” to the question of whether he had ever been arrested for breaking or violating any law, excluding traffic regulations. At the time that he answered the question, Abuagla, of course, knew that he had been arrested in 1988. The Government concedes that this false statement was not material. The sole issue on appeal is whether materiality is an element of the crime of knowingly making a false statement under oath in a naturalization proceeding under § 1015(a). Concluding that materiality is not an element, we affirm the district court. We review questions of statutory interpretation de novo, Holland v. Pardee Coal Co., 269 F.3d 424, 430 (4th Cir.2001), “begin[ning] with the language of the statute.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). We must first “determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Id. (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). Our “inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’ ” Robinson, 519 U.S. at 340, 117 S.Ct. 843 (quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989)). Section 1015(a) makes it a crime to “knowingly make[] any false statement under oath, in any case, proceeding, or matter relating to, or under, or by virtue of any law of the United States relating to naturalization," }, { "docid": "8962300", "title": "", "text": "machinegun and for transferring a machinegun. At trial, Richard Vasquez, a firearms enforcement officer with the ATF, testified as an expert in the classification of machineguns. Vasquez stated that the markings on the receiver the informant purchased from Williams indicated that it was a machinegun receiver manufactured in China and illegally imported into the United States. Vasquez further testified that a large pinhole at the bottom of the receiver, which was plugged with a large pin, showed the weapon was a machinegun, because that is where the machinegun sear would be mounted. On cross-examination, Agent Vasquez stated that the receiver was not a part, but rather the foundation of a machinegun. After closing arguments, the district court judge instructed the jury as to the definition of the term “machinegun,” quoting directly from the relevant portion of the statute. The jury subsequently convicted Williams on both counts and the district court sentenced Williams to thirty-three months imprisonment. This appeal followed. II. Williams contends that possession or transfer of a frame or receiver of a machinegun alone does not, as a matter of law, constitute possession or transfer of a machinegun itself under the statute. We review questions of statutory interpretation de novo, Holland v. Pardee Coal Co., 269 F.3d 424, 430 (4th Cir.2001), “begin[ning] with the language of the statute.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). We must first “determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). “Our inquiry must cease if the statutory language is unambiguous and thé statutory scheme is coherent and consistent.” Id. (internal quotation marks omitted). Section 922(o) provides that “[i]t shall be unlawful for any person to transfer or possess a machinegun.” 18 U.S.C.A. § 922(o). Although section 922(o) does not contain a definition of the term “machine-gun,” 18 U.S.C.A. § 921(a)(23) specifies that the term “machinegun” has the same definition as that provided in 26 U.S.C.A." }, { "docid": "9286270", "title": "", "text": "2164 (footnotes omitted) (citing Skidmore , 323 U.S. at 139-40, 65 S.Ct. 161 ). B. Interpreting § 315(b) We begin our analysis of the Board's application of § 315(b) by construing the provision. \"As in any case of statutory construction, our analysis begins with the language of the statute.\" Hughes Aircraft Co. v. Jacobson , 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999) (internal quotation marks omitted). \"The first step 'is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.' \" Barnhart v. Sigmon Coal Co. , 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (quoting Robinson v. Shell Oil Co. , 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ). We also \"must read the words 'in their context and with a view to their place in the overall statutory scheme.' \" King v. Burwell , --- U.S. ----, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (quoting FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) ). This is because statutory \"[a]mbiguity is a creature not [just] of definitional possibilities but [also] of statutory context.\" Brown v. Gardner , 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994). Importantly, we may not conclude that a statutory provision is ambiguous until we conclude that resort to all standard forms of statutory interpretation are incapable of resolving any apparent ambiguity which might appear on the face of the statute. See Chevron , 467 U.S. at 843 n.9, 104 S.Ct. 2778. The primary dispute in this case is whether the Board applied an unduly narrow test for determining whether Salesforce is a \"real party in interest\" under § 315(b). We apply the principles set forth in Chevron and its progeny with this dispute in mind. 1. The Common Law in Context Section 315 governs the relationship between IPRs and other proceedings conducted outside the IPR process. Section 315(b), titled \"Patent Owner's Action,\" provides that an IPR \"may" }, { "docid": "4070011", "title": "", "text": "to the Portal-to-Portal Act, specifically 29 U.S.C. § 254(a); and it is de minimis. The district court based its FLSA ruling on § 203(o), and we do the same. Section 203(o) excludes “any time spent changing clothes or washing” from “the hours for which an employee is employed” if such time “was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.” 29 U.S.C. § 203(o). We hold that donning and doffing the PPE at issue in this case is changing clothes and that there is a custom or practice of excluding donning and doffing time from measured working time under the collective bargaining arrangement between the Union and Butterball. We, therefore, affirm the district court’s ruling that Butterball did not violate the FLSA by failing to pay plaintiffs for donning and doffing time. “Changing Clothes” The meaning of “changing clothes” under § 203(o) is a question of first impression in this circuit. As with all statutory interpretation cases, we begin with the language of the statute. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). If the statute has a “plain and unambiguous meaning with regard to the particular dispute in the case” and the statutory scheme is coherent and consistent, our inquiry ends. Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. at 341, 117 S.Ct. 843. We conclude that the term “changing clothes” in § 203(o) is ambiguous. As evidenced by the differing interpretations of several courts and the United States Department of Labor Wage and Hour Division (the Wage and Hour Division), the word “clothing” is susceptible of multiple meanings, particularly in the industrial labor context where specialized apparel and equipment is often worn. The other circuit" }, { "docid": "13264615", "title": "", "text": "whether an eBook of the Translation constitutes a new “derivative work” under the Copyright Act. Section 101 of the Copyright Act defines a “derivative work” as: a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”. 17 U.S.C. § 101. The task of statutory interpretation begins “with the language of the statute itself.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). “The first step ‘is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.’ ” Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (citing Ron Pair Enters., Inc., 489 U.S. at 240, 109 S.Ct. 1026)). “[The] inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent.” Robinson, 519 U.S. at 340, 117 S.Ct. 843 (internal quotations omitted). Here, the statutory definition of “derivative work” consists of two sentences. The first sentence tells us that a “derivative work” is “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed or adapted.” 17 U.S.C. § 101. Accordingly, a “derivative work” is a work based on a preexisting work and that is in one of the listed forms — such as a translation — or in another form in which the pre-existing work is similarly “recast, transformed, or adapted.” A common feature among the forms of works listed in the statutory definition is that each" }, { "docid": "23568069", "title": "", "text": "$150 (the sale price). Negative damages are, of course, no damages at all. Plaintiffs urge a different interpretation of Section 11(e): the parenthetical phrase “not exceeding the price at which the security was offered to the public” applies not to the “amount paid for the security,” but rather to the “difference.” According to Plaintiffs, the damages are $50: the $200 purchase price minus the $150 sale price. The proper interpretation of Section 11(e) appears to be a question of first impression in this Circuit, and perhaps the entire country. The courts that have previously “resolved” this question seem to have done so inadvertently, and uniformly without discussion. As the Supreme Court has recently noted, “in all statutory construction cases, we begin with the language of the statute.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). “The first step ‘is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case,’ ” Id. (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)), and if it does, “there is no reason to resort to legislative history.” United States v. Gonzales, 520 U.S. 1, 6, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997) (citing Connecticut Nat. Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)). The language of Section 11(e) is plain and unambiguous. The parenthetical requirement “not exceeding the price at which the security was offered to the public” is placed after the first term in the equation, thereby requiring that it modify the first term, ie., “the amount paid.” Had Congress intended for the parenthetical limitation to apply to the difference, it could have said so. For example, Congress could have pegged the measure of damages at “the difference (not exceeding the price at which the security was offered to the public) between the amount paid for the security” and its sale price. Moreover, Plaintiffs’ reading of Section 11(e) would make Section 11(g) entirely redundant. Section 11(g) provides that, “In" }, { "docid": "8962301", "title": "", "text": "does not, as a matter of law, constitute possession or transfer of a machinegun itself under the statute. We review questions of statutory interpretation de novo, Holland v. Pardee Coal Co., 269 F.3d 424, 430 (4th Cir.2001), “begin[ning] with the language of the statute.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002). We must first “determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). “Our inquiry must cease if the statutory language is unambiguous and thé statutory scheme is coherent and consistent.” Id. (internal quotation marks omitted). Section 922(o) provides that “[i]t shall be unlawful for any person to transfer or possess a machinegun.” 18 U.S.C.A. § 922(o). Although section 922(o) does not contain a definition of the term “machine-gun,” 18 U.S.C.A. § 921(a)(23) specifies that the term “machinegun” has the same definition as that provided in 26 U.S.C.A. § 5845(b). See 18 U.S.C.A. § 921(a)(23) (West 2000 & Supp.2003). Section 5845 states: The term “machinegun” means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger. The term shall also include the frame or receiver of any such weapon, any part designed and intended solely and exclusively, or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person. 26 U.S.C.A. § 5845(b) (West 2002). Williams asserts that under this definition the receiver he transferred did not constitute a machinegun because “a frame or receiver” alone is not a machinegun. Rather, Williams argues, a frame or receiver is only a machinegun when it is among “a combination of parts from which a machinegun can be assembled if such parts are in the possession" }, { "docid": "19597774", "title": "", "text": ", 323 U.S. 134, 139-40, 65 S.Ct. 161, 89 L.Ed. 124 (1944) ). 2. Chevron Step One We begin our analysis of the Board's interpretation of § 315(b) by construing the provision. \"As in any case of statutory construction, our analysis begins with the language of the statute.\" Hughes Aircraft Co. v. Jacobson , 525 U.S. 432, 438, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999) (internal quotation marks and citation omitted). \"The first step 'is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.' \" Barnhart v. Sigmon Coal Co., Inc. , 534 U.S. 438, 450, 122 S.Ct. 941, 151 L.Ed.2d 908 (2002) (quoting Robinson v. Shell Oil Co. , 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ). In doing so, we \"must read the words 'in their context and with a view to their place in the overall statutory scheme.' \" King v. Burwell , -- U.S. ----, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015) (quoting FDA v. Brown & Williamson Tobacco Corp. , 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) ). This is because statutory \"[a]mbiguity is a creature not of definitional possibilities but of statutory context.\" Brown v. Gardner , 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994). Importantly, we may not conclude that a statutory provision is ambiguous until we conclude that resort to all standard forms of statutory interpretation are incapable of resolving any apparent ambiguity which might appear on the face of the statute. See Chevron , 467 U.S. at 843 n.9, 104 S.Ct. 2778. And, in discerning whether a statute is ambiguous, we must take care not to weigh competing policy goals, for \"[i]t is Congress's job to enact policy and it is th[e] [c]ourt's job to follow the policy Congress has prescribed.\" SAS Inst., Inc. v. Iancu , --- U.S. ----, 138 S.Ct. 1348, 1358, 200 L.Ed.2d 695 (2018). a. Plain and Unambiguous Language We \"[s]tart where the statute does.\" SAS , 138 S.Ct. at 1355. Section" } ]

[ { "docid": "22553758", "title": "", "text": "Justice Thomas delivered the opinion of the Court. This case requires us to decide whether Chapter 13 debtors who cure a default on an oversecured home mortgage pursuant to § 1322(b)(5) of the Bankruptcy Code, 11 U. S. C. § 1322(b)(5), must pay postpetition interest on the arrearages. We conclude that the holder of the mortgage is entitled to such interest under §§ 506(b) and 1325(a)(5) of the Code. I Petitioners Donald and Linda Rake, petitioners Earnest and Mary Yell, and respondents Ronnie and Rosetta Han-non initiated three separate Chapter 13 bankruptcy proceedings in the Northern District of Oklahoma. In each ease the debtors were in arrears on a long-term promissory note assigned to respondent William J. Wade, trustee (hereinafter respondent). The notes allowed a $5 charge for each missed payment but did not provide for interest on arrearages. Payment on the notes was secured by a first mortgage on the principal residence owned by each pair of debtors. The mortgage instruments provided that in the event of a default by the debtors, the holder of the note (now respondent as assignee) had the right to declare the remainder of indebtedness due and payable and to foreclose on the property. Because the value of the residence owned by each pair of debtors exceeded the outstanding balance on the corresponding notes, respondent was an oversecured creditor. In their Chapter 13 plans the debtors proposed to pay directly to respondent all future payments of principal and interest due on the notes. The plans also provided that the debtors would cure the default on the mortgages by paying off the arrearages, without interest, over the terms of the plans. Respondent objected to each plan, on the ground that he was entitled to attorney’s fees and interest on the arrearages. The Bankruptcy Court overruled respondent’s objections, and respondent appealed to the District Court for the Northern District of Oklahoma, which consolidated the cases and affirmed. The District Court held that the Chapter 13 provisions relating to the “curing of defaults” — 11 U. S. C. §§ 1322(b)(2) and 1322(b)(5) — “do not alter the" } ]

[ { "docid": "12725849", "title": "", "text": "the allowance of attorney’s fees as part of such claim. Alternatively, Homeside takes the position that Ohio law does not prohibit the recovery of its fees under the circumstances before the Court. Applicability of § 1822(e) to Attorney’s Fees In Rake v. Wade, 508 U.S. 464, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993), the United States Supreme Court held that an overse-cured mortgagee is entitled to postpetition interest on arrears paid through a Chapter 13 plan. Homeside argues that § 1322(e), added to the Bankruptcy Code as part of the Bankruptcy Reform Act of 1994 shortly after the Supreme Court1 rendered its decision in Rake, serves the exclusive purpose of legislatively overruling Rake so as to prohibit the payment of postpetition interest on arrears unless provided by contract and allowed under state law. Therefore, Homeside concludes, § 1322(e) has no application to the collection of the attorney’s fees portion of an arrearage claim. In support of this argument, Homeside refers the Court to the legislative history of § 1322(e). Section 305. Interest on interest. This section will have the effect of overruling the decision of the Supreme Court in Rake v. Wade, 508 U.S. 464, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993). In that case, the Court held that the Bankruptcy Code required that interest be paid on mortgage arrearages paid by debtors curing defaults on their mort gages. Notwithstanding State law, this case has had the effect of providing a windfall to secured creditors at the expense of unsecured creditors by forcing debtors to pay the bulk of their income to satisfy the secured creditors’ claims. This had the effect of giving secured creditors interest on interest payments, and interest on the late charges and other fees, even where applicable laws prohibits such interest and even when it was something that was not contemplated by either party in the original transaction. This provision will be applicable prospectively only, i.e., it will be applicable to all future contracts, including transactions that refinance existing contracts. It will limit the secured creditor to the benefit of the initial bargain with no court" }, { "docid": "12275970", "title": "", "text": "if it is proposed in a plan to cure a default, the amount necessary to cure the default shall be determined in accordance with the underlying agreement and applicable non-bankruptcy law. § 1322(e). This section applies with respect to any and all loan agreements entered into after October 22,1994, the effective date of the Reform Act. See Reform Act, § 702(b)(2)(D). The legislative history of the Reform Act indicates that § 1322(e) was enacted in order to legislatively overrule Wade. The House of Representatives Report provides as follows: Section 305. Interest on interest. This section will have the effect of overruling the decision of the Supreme Court in Rake v. Wade, 508 U.S. 464, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993). In that case, the Court held that the Bankruptcy Code required that interest be paid on mortgage arrearages paid by debtors curing defaults on their mortgages. Notwithstanding State law, this case has had the effect of providing a windfall to secured creditors at the expense of unsecured creditors by forcing debtors to pay the bulk of their income to satisfy the secured creditors’ claims. This had the effect of giving secured creditors interest on interest payments, and interest on the late charges and other fees, even where applicable laws prohibits such interest and even when it was something that was not contemplated by either party in the original transaction. This provision will be applicable prospectively only, i.e., it will be applicable to all future contracts, including transactions that refinance existing contracts. It will limit the secured creditor to the benefit of the initial bargain with no court contrived windfall. It is the Committee’s intention that a cure pursuant to a plan should operate to put the debtor in the same position as if the default had never occurred. H.R.Rep. No. 103-835 at 55 (1994), reprinted in 1994 U.S.C.C.A.N. 3340, 3364. The Senate Report contains the following statement: Section 305. Interest on interest. This section is in response to the recent U.S. Supreme Court decision of Rake v. Wade (No. 92-621, decided June 7, 1993). The Court decided that an" }, { "docid": "12275969", "title": "", "text": "effect ... to every word.’ ”. Construing §§ 506(b) and 1322(b)(5) together, and giving effect to both, we conclude that § 1322(b)(5) authorizes a debtor to cure a default on a home mortgage by making payments on arrearages under a Chapter 13 plan, and that where the mortgagee’s claim is oversecured, § 506(b) entitles the mortgagee to pre-confirmation interest on such arrearag-es. Id., 508 U.S. at 471-472, 113 S.Ct. 2187 (citations omitted). After the Supreme Court decision in Wade, courts consistently awarded interest on arrearages owed to creditors with liens upon the debtors’ principal residence. See, e.g., In re Battle, 164 B.R. 394 (Bankr.M.D.Ga.1994); In re Brycki 161 B.R. 915 (Bankr.D.N.J.1993); In re Callahan, 158 B.R. 898 (Bankr.W.D.N.Y.1993). Shortly after the Supreme Court rendered its decision in Wade, Congress passed the Bankruptcy Reform Act of 1994, Pub.L. No. 103-394, 108 Stat. 4106 (the “Reform Act”). Section 305 of the Reform Act added § 1322(e) to the Bankruptcy Code, which provides that Notwithstanding subsection (b)(2) of this section and sections 506(b) and 1325(a)(5) of this title, if it is proposed in a plan to cure a default, the amount necessary to cure the default shall be determined in accordance with the underlying agreement and applicable non-bankruptcy law. § 1322(e). This section applies with respect to any and all loan agreements entered into after October 22,1994, the effective date of the Reform Act. See Reform Act, § 702(b)(2)(D). The legislative history of the Reform Act indicates that § 1322(e) was enacted in order to legislatively overrule Wade. The House of Representatives Report provides as follows: Section 305. Interest on interest. This section will have the effect of overruling the decision of the Supreme Court in Rake v. Wade, 508 U.S. 464, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993). In that case, the Court held that the Bankruptcy Code required that interest be paid on mortgage arrearages paid by debtors curing defaults on their mortgages. Notwithstanding State law, this case has had the effect of providing a windfall to secured creditors at the expense of unsecured creditors by forcing debtors to pay the" }, { "docid": "3639358", "title": "", "text": "Several subsections of Section 1322 address secured claims, including Section 1322(b)(2) that excepts from modification those claims that are secured only by a security interest in real property that is the debtor’s principal residence; Section 1322(b)(3) that states that the plan must provide for the curing or waiving of any default; Section 1322(b)(5) that states that the plan must provide for the cure of any default within a reasonable time; and Section 1322(e), the particular subsection at issue here, which provides that “if it is proposed in a plan to cure a default, the amount necessary to cure the default, shall be determined in accordance with the underlying agreement and applicable non-bankruptcy law.” 11 U.S.C. §§ 1322(b) and 1322(e). In the case before the Court, the pre-petition arrearage consists of missed payments that have principal and interest components; late fees; attorney fees; the costs associated with attempted foreclosure proceedings; and assorted late charges and additional charges. Section 1322(e), applicable to loans made after October 22, 1994, was enacted as part of the Bankruptcy Reform Act of 1994 and was intended to overrule Rake v. Wade, 508 U.S. 464, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993). In Rake, the Supreme Court held that the Bankruptcy Code required that, to cure a pre-petition mortgage default, interest must be paid on the entire mortgage amount of the arrearage. The ruling permitted secured creditors to be paid interest on interest and on late charges, even in those instances where state law did not permit such interest, or where the loan agreements did not provide for such interest. To limit the secured creditor to the benefit of its bargain, -Section 1322(e) was added to the Bankruptcy Code in 1994. It conveyed the Congressional intent that a cure in bankruptcy pursuant to a Chapter 13 plan, should put the debtor and the creditor in the same position as was bargained for under the provisions of the parties’ agreement and applicable non-bankruptcy law. The analysis of Section 1322(e) is a two part process. First, as a threshold matter, the amount necessary to cure must be in accordance" }, { "docid": "19287132", "title": "", "text": "action against the Property. The Debtor then filed this Chapter 13 case. Lehman’s Claim is for the principal balance due under the Note, together with an arrearage amount that includes $900 in attorney fees related to the foreclosure action. (Debtor’s Brief, p. 4). (Docket 36). The Debtor’s Chapter 13 plan provides for her to pay the principal balance in regular monthly payments directly to Lehman and to cure the default through the plan. The parties agree that the Note and Mortgage are governed by Ohio law, the attorney fees incurred by Lehman fall within the terms of the Note and Mortgage, and the fees requested are reasonable in amount. THE ISSUE Is Lehman entitled to recover its attorney fees under the Note and Mortgage as part of the amount needed to cure the Debtor’s default in her plan? THE POSITIONS OF THE PARTIES The Debtor argues that she is not responsible for the fees because the cure amount is governed by 11 U.S.C. § 1322(e), and Ohio law, referenced by that section, renders void the attorney fee provisions in these pre-printed instruments. Lehman’s position is that § 1322(e) is not relevant because the statute only applies to prevent the payment of interest on the cure amounts and state law does permit collection of fees. DISCUSSION 11 U.S.C. § 1322(e) A. Does 11 U.S.C. § 1322(e) apply? A Chapter 13 plan may provide for the curing of a default. See generally 11 U.S.C. §§ 1322(b)(3) and (5). The Code states that: Notwithstanding subsection (b)(2) of this section and sections 506(b) and 1325(a)(5) of this title, if it is proposed in a plan to cure a default, the amount necessary to cure the default, shall be determined in accordance with the underlying agreement and applicable non-bankruptcy law. 11 U.S.C. § 1322(e). Section 1322(e) was enacted as part of the Bankruptcy Reform Act of 1994. Pub.L. No. 103-394 § 305, 108 Stat. 4106 (Oct. 22, 1994). The section applies to the Note and Mortgage because they were executed after the effective date of October 22, 1994. Pub.L. No. 103-394 § 702(b)(2)(D), 108 Stat." }, { "docid": "14794530", "title": "", "text": "Supreme Court held that an arrearage claim is governed by § 506(b) and § 1325(a)(5). The issue in Rake was not whether counsel fees were allowable as part of the mortgage arrears claim. Rather, the issue was whether the creditor was entitled to an allowance of postpetition interest on the mortgage arrears component of its secured claim in a chapter 13 case in which the debtor proposed to cure a pre-petition default (as opposed to satisfying the creditor’s entire allowed secured claim). That the Rake dispute involved the allowance of interest in a proof of claim as opposed to the allowance of prepetition counsel fees is not a material distinction in my analysis because the Court held unequivocally that the arrearage component of a mortgage lender’s allowed secured claim is itself a “claim” under § 506(b). See 508 U.S. at 471, 113 S.Ct. at 2191. As a bankruptcy “claim,” any charge sought to be included in the claim for mortgage arrears may then be subject to § 506(b). As a result, Rake instructs that a secured creditor (or at least oversecured creditors) can look to § 506(b) as authority for including prepetition counsel fees in a proof of claim. To the extent that Smith suggested that § 506(b) is irrelevant, that holding was overruled by Rake. In 1994, by enacting the Bankruptcy Reform Act of 1994, Pub.L. No. 103-394, § 305, Congress modified the outcome in Rake through the addition to the Code of 11 U.S.C. § 1322(e). Section 1322(e) has been described as a legislative decision to “overrule” Rake. See 8 Collier on Bankruptcy ¶ 1322.18, at 1322-67 (15th rev. ed.2005). Section 1322(e) provides that, notwithstanding § 506(b), § 1322(b)(2) and § 1325(a), in a plan which provides for a cure of a default, “the amount necessary to cure the default shall be determined in accordance with the underlying agreement and applicable nonbankruptcy law.” Section 1322(e) applies only to loan transactions entered into after October 22, 1994. See Pub.L. 103-394, §§ 702(b)(2)(D) (Oct. 22, 1994). Thus, it would appear that state law (as suggested in Smith) governs the allowance" }, { "docid": "19287136", "title": "", "text": "13 debtor proposes to cure a default. The amount of that cure is determined by looking to two sources: (1) the existing agreement between the parties; and (2) applicable nonbankruptcy law, which in this case is Ohio law. As a result, “[t]wo conditions must be met before interest or other charges can be require[d] as part of the bankruptcy cure. First, the interest or other charges must be required under the original agreement, and second, they cannot be prohibited by state law.” In re Bumgarner, 225 B.R. 327, 328 (Bankr.D.S.C.1998). Because there is nothing in the statute to suggest that § 1322(e) is limited to interest charges, the Court finds that it also applies to determine whether attorney fees must be paid as part of “the amount necessary to cure” this default. In the face of clear statutory language, it is only necessary to turn to the legislative history if this reading of § 1322(e) results in internal inconsistencies, leads to an absurd result, or is inconsistent with the intention of the drafters. Lehman has not argued that the first two scenarios exist, but does argue that the interpretation is inconsistent with the drafters’ intention. That stated intention, however, is that default amounts are to be determined by state law and the parties’ pre-bankrupt-cy agreement: .This section will have the effect of overruling the decision of the Supreme Court in Rake v. Wade, 508 U.S. 464, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993). In that case, the Court held that the Bankruptcy Code required that interest be paid on mortgage arrearages paid by the debtors curing defaults on their mortgages. Notwithstanding state law, this case had the effect of providing a windfall to secured creditors at the expense of unsecured, creditors by forcing debtors to pay the bulk of their income to satisfy the secured creditors’ claims. This had the effect of giving secured creditors interest on interest payments, and interest on the late charges and other fees, even where applicable law prohibits such interest and even when it was something that was not contemplated by either party in the" }, { "docid": "13978876", "title": "", "text": "costs and fees in the amount of $1,867.50 (Exhibit A). The amount of $1,861.34 corresponds to pre-petition legal fees related to foreclosure proceedings in the amount of $1,561.34 (Exhibit B) and a $300 flat fee charged by BPPR on bankruptcy loans; (ii) section 1322(e), if a Chapter 13 plan that proposes to cure a mortgage default of pre-petition arrearage, “shall be determined in accordance with the underlying agreement and applicable nonbankruptcy law.” Section 1322(e) besides including the interest under a mortgage agreement, includes other charges that comprise the mortgagee’s arrearage such as attorney’s fees, costs and late charges; (iii) the amount of pre-petition arrearage which includes pre-petition attorney’s fees must be determined in conformity with the underlying agreement and applicable nonbankruptcy law, and is not subject to a determination of reasonableness under federal Bankruptcy law. These fees and costs were included in the original proof of claim and were never objected to by the Debtor; (iv) “bankruptcy statute limiting oversecured creditors only to reasonable attorney[’s] fees is inapplicable to calculation of arrearage amount which must be cured.” 11 U.S.C. §§ 506(b), 1332(e); See In re Virgen Mercado Alvarez, 458 B.R. 645;” (v) the Debt- or cannot modify the rights of secured claims secured by debtor’s principal residence pursuant to 11 U.S.C. § 1322(b)(2); the instant case is distinguishable from In re Ayala Pagan, case No, 09-07451(EAG) because in In re Ayala Pagan the plan confirmed was a pay in full through the plan and in the instant case the confirmed plan proposed to cure arrears and maintain current payments; (vi) In re Jimenez Galindez is distinguishable from the instant case because in the instant matter Debtor was aware of BPPR’s mistake, given that the Debtor had proposed to pay $16,000 in pre-petition arrears. The Debt- or amended the plan based upon BPPR’s mistake; (vii) the totality of the circumstances indicate that the plan confirmed was not filed in good faith pursuant to 11 U.S.C. § 1325(a)(3) because the same was filed to take advantage of BPPR’s mistake; and (viii) the established precedent in the First Circuit is that amendments to" }, { "docid": "12290439", "title": "", "text": "enacted as part of the Bankruptcy Reform Act of 1994 (“1994 Reform Act”). Pursuant to section 702(b)(2)(D) of the 1994 Reform Act, this amendment to § 1322 was made applicable only to agreements concluded after October 22, 1994, the effective date of the legislation. It is evident from the limited legislative history that exists for the 1994 Reform Act that § 1322(e) was intended to overrule Rake v. Wade, 508 U.S. 464, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993). Rake held that an over secured creditor is entitled to interest on the arrears and other charges even if the mortgage is silent and state law would not require interest to be paid. As part of the Floor Statements made in connection with the legislation, Representative Jack Brooks stated: This section will have the effect of overruling the decision of the Supreme Court in Rake v. Wade, 508 U.S. 464, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993). In that case, the Court held that the Bankruptcy Code required that interest be paid on mortgage arrearages paid by debtors curing defaults on their mortgages. Notwithstanding State law, this case has had the effect of providing a windfall to secured creditors at the ex pense of unsecured creditors by forcing debtors to pay the bulk of their income to satisfy the secured creditors’ claims. This had the effect of giving secured creditors interest on interest payments, and interest on the late charges and other fees, even where applicable law prohibits such interest and even when it was something that was not contemplated by either party in the original transaction. This provision will be applicable prospectively only, i.e., it will be applicable to all future contracts, including transactions that refinance existing contracts. It will limit the secured creditor to the benefit of the initial bargain with no court contrived windfall. It is the Committee’s intention that a cure pursuant to a plan should operate to put the debtor in the same position as if the default had never occurred. H.R. 835, 103rd Cong., 2nd Sess. (1994), 140 Cong. Rec. H10,752 (daily ed. October 4,1994)." }, { "docid": "3639359", "title": "", "text": "of 1994 and was intended to overrule Rake v. Wade, 508 U.S. 464, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993). In Rake, the Supreme Court held that the Bankruptcy Code required that, to cure a pre-petition mortgage default, interest must be paid on the entire mortgage amount of the arrearage. The ruling permitted secured creditors to be paid interest on interest and on late charges, even in those instances where state law did not permit such interest, or where the loan agreements did not provide for such interest. To limit the secured creditor to the benefit of its bargain, -Section 1322(e) was added to the Bankruptcy Code in 1994. It conveyed the Congressional intent that a cure in bankruptcy pursuant to a Chapter 13 plan, should put the debtor and the creditor in the same position as was bargained for under the provisions of the parties’ agreement and applicable non-bankruptcy law. The analysis of Section 1322(e) is a two part process. First, as a threshold matter, the amount necessary to cure must be in accordance with the parties’ agreement. Second, the amount sought to be included must not otherwise be forbidden by applicable, non-bankruptcy law. Section 1322(e) does not provide for the inclusion of an item in an arrearage claim that would be permitted under applicable non-bankruptcy law that was not included in the underlying agreement. See In re Hoover, 254 B.R. 492 (Bankr.N.D.Okla.2000), (holding that, although applicable non-bankruptcy law would allow interest on unpaid installment arrears, the parties’ agreement did not provide for such interest but only provided for a $5.00 fee for each unpaid installment, which could be included in the proof of claim; and that because the agreement provided for interest on money advanced for insurance, and such interest was not otherwise prohibited by non-bankruptcy law, its allowance was not contrary to Section 1322(e)). Debtors’ attorney urges the Court to read the language of Section 1322(e) to mean that no part of the arrearage is entitled to interest. That would be an incorrect reading of the plain language of the statute. The case cited by Debtors, In" }, { "docid": "16436529", "title": "", "text": "in United States v. Ron Pair Enter., Inc., to hold that where a Chapter 13 plan provided for an oversecured creditor’s prepetition arrearage, § 506(b) required payment of postconfirmation interest on the home mortgage arrears (which itself might include preconfirmation interest) regardless of whether the underlying note, mortgage or state law permitted the accrual of such interest on interest. Rake, 508 U.S. at 472,113 S.Ct. 2187. By enacting § 1322(e), Congress expressly overruled the Rake holding, disconnecting in this respect § 506(b)’s application where a debtor cures a default through a Chapter 13 plan. Congress stated that the rule established in Rake had the effect of giving secured creditors interest on interest payments, and interest on the late charges and other fees, even where applicable law prohibits such interest and even when it was something that was not contemplated by either party in the original transaction. [Section 1322(e) ] will limit the secured creditor to the benefit of the initial bargain with no court contrived windfall .... It is the Committee’s intention that a cure pursuant to a plan should operate to put the debtor in the same position as if the default had never occurred. H.R. Rep. 103-834 at 55 (1994) reprinted in 1994 U.S.C.C.A.N. 3340, 3364. Section 1322(e) was intended to apply prospectively to contracts entered into after October 22, 1994, the effective date of the amendment. Id. Courts have interpreted § 1322(e) to displace § 506(b)’s requirements not only as to interest on arrearages, but also to other fees and costs. In re Landrum, 267 B.R. 577, 580-81 (Bankr. S.D.Ohio 2001) (quoting In re Lake, 245 B.R. 282, 285 (Bankr.N.D.Ohio 2000) (hold ing that Congress did not limit the provisions of § 1322(e) to interest charges but also to attorney fees and foreclosure costs)). Thus, § 1322(e) applies with respect to interest, fees and costs to every contract effective after October 22, 1994, regardless of whether a particular claim is secured or unsecured, oversecured or undersecured. See § 1322(b)(5) (stating that a chapter 13 plan may cure defaults of both unsecured and secured long term contracts); 2" }, { "docid": "9031504", "title": "", "text": "section 1325(a)(5)(B) applied to cure payments under section 1322(b)(5). Rake v. Wade, 508 U.S. 464, 472-75, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993). At the time, section 1325(a)(5)(B) only required that the plan provide for the secured creditor to retain its lien and for \"the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim [to be] not less than the allowed amount of such claim.\" 508 U.S. at 469, 113 S.Ct. 2187. At issue in Rake was whether the pre-1994 iteration of section 1325(a)(5)(B) required payment of interest on the arrearage, regardless of whether the secured creditor was entitled to interest under non-bankruptcy law, and the Supreme Court held that the creditor was so entitled. 508 U.S. at 475, 113 S.Ct. 2187. Arrearages often include interest and late fees, and the result of Rake was to give \"secured creditors interest on interest payments, and interest on the late charges and other fees, even where applicable law prohibits such interest and even when it was something that was not contemplated by either party in the original transaction.\" H.R. Rep. 103-834, 103rd Cong., 2d Sess. 55 (October 4, 1994). Concerned about \"a windfall to secured creditors at the expense of unsecured creditors\", Congress amended section 1322 to add subsection (e) with \"the effect of over ruling the decision of the Supreme Court in Rake v. Wader .\" Id. This amendment provides that \"[n]otwithstanding subsection (b)(2) of this section and sections 506(b) and 1325(a)(5) of this title, if it is proposed in a plan to cure a default, the amount necessary to cure the default, shall be determined in accordance with the underlying agreement and applicable nonbankruptcy law.\" 11 U.S.C. § 1322(e). In re Davis held that the enactment of section 1322(e) overruled not only Rake 's ruling on interest on arrearages, but its broader ruling that section 1325(a)(5) does not apply to claims cured and maintained under section 1322(b)(5). It concluded that \"equal monthly payments are not required as the claim at issue is one in which arrears on" }, { "docid": "16436528", "title": "", "text": "Harmon argues that the claimed prepetition amount of $2,496.76 is within the amount set by HUD guidelines. In addition, Harmon claims that this amount is commensurate with foreclosure fees charged by other attorneys in Massachusetts. Finally, Harmon notes that had it charged its customary rates on an hourly basis, the total fees would have been significantly higher. III. DISCUSSION A. The Applicability of § 506(b) The Court agrees with Harmon’s argument to the effect that § 506(b) is inapplicable to the Court’s review of the Fees in this case. When a debtor seeks to cure a prepetition payment default over the life of a Chapter 13 plan pursuant to § 1322(b)(5), the amount of the arrearage must be “determined in accordance with the underlying agreement and applicable nonbankruptcy law.” 11 U.S.C. § 1322(e) (2002). The history of § 1322(e) is quite clear. Congress enacted this provision in 1994 to overrule the Supreme Court’s holding in Rake v. Wade, 508 U.S. 464, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993). In Rake, the court extended its rulings in United States v. Ron Pair Enter., Inc., to hold that where a Chapter 13 plan provided for an oversecured creditor’s prepetition arrearage, § 506(b) required payment of postconfirmation interest on the home mortgage arrears (which itself might include preconfirmation interest) regardless of whether the underlying note, mortgage or state law permitted the accrual of such interest on interest. Rake, 508 U.S. at 472,113 S.Ct. 2187. By enacting § 1322(e), Congress expressly overruled the Rake holding, disconnecting in this respect § 506(b)’s application where a debtor cures a default through a Chapter 13 plan. Congress stated that the rule established in Rake had the effect of giving secured creditors interest on interest payments, and interest on the late charges and other fees, even where applicable law prohibits such interest and even when it was something that was not contemplated by either party in the original transaction. [Section 1322(e) ] will limit the secured creditor to the benefit of the initial bargain with no court contrived windfall .... It is the Committee’s intention that a cure" }, { "docid": "12290438", "title": "", "text": "has properly calculated the amount of the arrears to be paid through Trabal’s Chapter 13 plan. To resolve the issue, the Court must apply Bankruptcy Code § 1322(e), which provides: (e) Not withstanding subsection (b)(2) of this section and sections 506(b) and 1325(a)(5) of this title, if it is proposed in a plan to cure a default, the amount necessary to cure the default shall be determined in accordance with the underlying agreement and applicable non-bankruptcy law. Thus by the terms of the statute, the Court must determine (i) whether the Chase mortgage provides for the charges claimed together with interest and (ii) whether New Jersey law permits the charges and the interest to be included. Counsel for Trabal argues that because the mortgage does not contain a clause or phrase which specifically refers to interest on arrears in a bankruptcy case, the mortgage does not meet the requirements of § 1322(e). The Court finds that Trabal’s reading of the statute is unreasonably narrow and does not comport with its underlying purpose. Section 1322(e) was enacted as part of the Bankruptcy Reform Act of 1994 (“1994 Reform Act”). Pursuant to section 702(b)(2)(D) of the 1994 Reform Act, this amendment to § 1322 was made applicable only to agreements concluded after October 22, 1994, the effective date of the legislation. It is evident from the limited legislative history that exists for the 1994 Reform Act that § 1322(e) was intended to overrule Rake v. Wade, 508 U.S. 464, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993). Rake held that an over secured creditor is entitled to interest on the arrears and other charges even if the mortgage is silent and state law would not require interest to be paid. As part of the Floor Statements made in connection with the legislation, Representative Jack Brooks stated: This section will have the effect of overruling the decision of the Supreme Court in Rake v. Wade, 508 U.S. 464, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993). In that case, the Court held that the Bankruptcy Code required that interest be paid on mortgage arrearages paid" }, { "docid": "20981455", "title": "", "text": "claim is secured by property the value of which, after any recovery under subsection (c) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose. 11 U.S.C. § 506(b). Bankruptcy law is clear, however, that § 1322(e) of the Bankruptcy Code defines the allowable components of a claim to cure a mortgage default under Chapter 13. As previously discussed, § 1322(e) specifies that arrearage claims are governed by the terms of the agreement between the parties and applicable state law: Notwithstanding subsection (b)(2) of this section and sections 506(b) and 1325(a)(5) of this title, if it is proposed in a plan to cure a default, the amount necessary to cure the default shall be determined in accordance with the un derlying agreement and applicable non-bankruptcy law. 11 U.S.C. § 1322(e) (emphasis added). Section 1322(e) was enacted to overrule the Supreme Court’s decision in Rake v. Wade, 508 U.S. 464, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993), in which the Court ruled that debtors curing mortgage defaults were required to pay interest on the arrearages. Congress believed the ruling [h]ad the effect of providing a windfall to secured creditors at the expense of unsecured creditors by forcing debtors to pay the bulk of their income to satisfy the secured creditors’ claims. This had the effect of giving secured creditors interest on interest payments, and interest on the late charges and other fees, even where applicable law prohibits such interest and even when it. was something that was not contemplated by either party in the original transaction.... It is the Committee’s intention that a cure pursuant to a plan should operate to put the debtor in the same position as if the default had never occurred. 140 Cong. Rec. H10770 (daily ed. Oct. 4, 1994). Although it was intended to overrule Rake, § 1322(e)’s application is not restricted to the interest component of an arrearage claim; it extends to attorney" }, { "docid": "20981454", "title": "", "text": "that mortgage holders might find palatable despite having to deal with a debtor not of their choosing.”). To sum up, the Debtor here made no attempt to comply with the Mortgage’s requirements for contractual reinstatement. There was no tender to Chase of “all sums” due under the contract. Hence, there was in fact no contractual reinstatement of the Mortgage. And while Chase attempts to equate the concepts of contractual reinstatement and statutory cure under § 1322(b)(5), it has offered no legal authority to support this argument. Because contractual mortgage reinstatement and the Chapter 13 cure remedy are not one and the same, the reinstatement exception to the Common Law Rule recognized by the Davidson and Mahaffey courts does not provide a basis for Chase to recover the Fees. D. The Postpetition Fees: § 1322(e) Versus § 506(b) Chase also asserts that § 506(b) of the Bankruptcy Code, rather than state law, controls the allowance of its Postpetition Fees because it is an oversecured creditor. Section 506(b) provides that [t]o the extent that an allowed secured claim is secured by property the value of which, after any recovery under subsection (c) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement under which such claim arose. 11 U.S.C. § 506(b). Bankruptcy law is clear, however, that § 1322(e) of the Bankruptcy Code defines the allowable components of a claim to cure a mortgage default under Chapter 13. As previously discussed, § 1322(e) specifies that arrearage claims are governed by the terms of the agreement between the parties and applicable state law: Notwithstanding subsection (b)(2) of this section and sections 506(b) and 1325(a)(5) of this title, if it is proposed in a plan to cure a default, the amount necessary to cure the default shall be determined in accordance with the un derlying agreement and applicable non-bankruptcy law. 11 U.S.C. § 1322(e) (emphasis added). Section 1322(e) was enacted to overrule the Supreme Court’s decision in" }, { "docid": "19287137", "title": "", "text": "not argued that the first two scenarios exist, but does argue that the interpretation is inconsistent with the drafters’ intention. That stated intention, however, is that default amounts are to be determined by state law and the parties’ pre-bankrupt-cy agreement: .This section will have the effect of overruling the decision of the Supreme Court in Rake v. Wade, 508 U.S. 464, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993). In that case, the Court held that the Bankruptcy Code required that interest be paid on mortgage arrearages paid by the debtors curing defaults on their mortgages. Notwithstanding state law, this case had the effect of providing a windfall to secured creditors at the expense of unsecured, creditors by forcing debtors to pay the bulk of their income to satisfy the secured creditors’ claims. This had the effect of giving secured creditors interest on interest payments, and interest on the late charges and other fees, even where applicable law prohibits such interest and even when it was something that was not contemplated by either party in the original transaction. This provision ... will limit the secured creditor to the benefit of the initial bargain with no court contrived windfall. It is the Committee’s intention that a cure pursuant to a plan should operate to put the debtor in the same position as if the default had never occurred. 140 Cong.Rec. H10,764 (daily ed. October 4, 1994) (section analysis by Congressman Brooks) (emphasis added). There is no indication in this history that Congress intended to restrict the default amount analysis to the interest component. A finding that § 1322(e) also applies to determine whether Lehman’s attorney fees are to be included in the amount necessary to cure its default is not inconsistent with the stated legislative intent. B. Does Ohio law permit enforcement of the attorney fee term? As stated, there are two parts to the § 1322(e) analysis. The first, whether the agreement includes the term, has been met because the Debtor concedes that the Note and Mortgage provide for attorney fees. The second part is whether Ohio law permits enforcement of" }, { "docid": "14984969", "title": "", "text": "ORDER WM. THURMOND BISHOP, Bankruptcy Judge. This matter comes before the Court upon the objection of First Federal Savings and Loan (“First Federal”) to the debtor’s plan, filed July 16, 1997. First Federal objects because the plan does not provide for interest on the cure of the mortgage default to this mortgage creditor. Debtor has proposed that the default be cured during the term of the plan without interest, as permitted by 11 U.S.C. § 1322(e), because the contract does not provide for interest on defaults. In 1994, 11 U.S.C. § 1322(e) was amended to provide Notwithstanding subsection (b)(2) of this section and sections 506(b) and 1325(a)(5) of this title, if it is proposed in a plan to cure a default, the amount necessary to cure the default, shall be determined in accordance with the underlying agreement and applicable nonbankruptcy law. The effective date of the provision is October 10, 1994, and applies only to agreements or refinancings entered after that date. The Legislative History to § 1322(e) provides that this section has the effect of overruling Rake v. Wade, 508 U.S. 464, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993) which gave interest on all elements of a mortgage arrearages, including principal, interest, late charges, and escrow fees, cured by debtors in bankruptcy. This had the effect of giving secured creditors interest on interest payments, and interest on the late charges and other fees, even when it was something that was not contemplated by either party in the original transaction. Legislative History, 11 U.S.C. § 1322(e). 8 Collier on Bankruptcy, 15th Ed. revised, ¶ 1322.18 at p. 1322-54, provides Under section 1322(e), the amount necessary to cure a default is the same amount as would be required to cure if the debtor were not in bankruptcy. Two conditions must be met before interest or other charges can be requires as part of - the bankruptcy cure. First, the interest or charges must be required under the original agreement, and second, they cannot be prohibited by state law. In other words, the bankruptcy court will never require interest in excess of" }, { "docid": "3639357", "title": "", "text": "the agreement, such interest is to accrue after default. See Fairbanks’ Exhibit B, Note, paragraph 2. The agreement also permitted Fairbanks to include in the debt amounts advanced by Fairbanks for such items as insurance, taxes, attorney fees and costs and these amounts were to accrue interest. See Fairbanks’ Exhibit A, Deed of Trust, paragraphs 7 & 17. Fairbanks also alleged that it is owed interest on the “late charges”, “additional late charges”, and “additional charges” under state law at the rate of 9%. See Mo.Rev. Stat. § 408.020 (2002). Fairbanks is expressly not claiming an entitlement to interest on that portion of the arrearage that is the interest component of the missed payments. The issue here is whether, in order to cure a default in a Chapter 13 case under Section 1322(e), a debtor’s plan must provide for interest to be included on those portions of an arrearage that are entitled to interest under the terms of the note and deed of trust, where those terms are not otherwise contrary to applicable non-bankruptcy law. Several subsections of Section 1322 address secured claims, including Section 1322(b)(2) that excepts from modification those claims that are secured only by a security interest in real property that is the debtor’s principal residence; Section 1322(b)(3) that states that the plan must provide for the curing or waiving of any default; Section 1322(b)(5) that states that the plan must provide for the cure of any default within a reasonable time; and Section 1322(e), the particular subsection at issue here, which provides that “if it is proposed in a plan to cure a default, the amount necessary to cure the default, shall be determined in accordance with the underlying agreement and applicable non-bankruptcy law.” 11 U.S.C. §§ 1322(b) and 1322(e). In the case before the Court, the pre-petition arrearage consists of missed payments that have principal and interest components; late fees; attorney fees; the costs associated with attempted foreclosure proceedings; and assorted late charges and additional charges. Section 1322(e), applicable to loans made after October 22, 1994, was enacted as part of the Bankruptcy Reform Act" }, { "docid": "12725848", "title": "", "text": "In re Brunswick Apartments of Trumbull County, Ltd., 215 B.R. 520, 524 (6th Cir. BAP 1998) (§ 506(b) permits an oversecured creditor to recover its attorneys fees where they are reasonable and contemplated by contract between the parties), aff'd, 169 F.3d 333 (6th Cir.1999), The Debtor, however, argues that § 506(b) is trumped in this proceeding by § 1322(e) since the fees are included in a claim for arrears. Section 1322(e) provides: Notwithstanding subsection (b)(2) of this section and sections 506(b) and 1325(a)(5) of this title, if it is proposed in a plan to cure a default, the amount necessary to cure the default, shall be determined in accordance with the underlying agreement, and applicable non-bankruptcy law. The Debtor contends that § 1322(e) bars the allowance of Homeside’s arrearage claim for attorney’s fees because Ohio law renders void the attorney’s fee provision of the promissory note. Homeside advances two arguments in opposition. First, Homeside argues that § 1322(e) precludes only the allowance of interest on an arrear-age claim and that it has no application to the allowance of attorney’s fees as part of such claim. Alternatively, Homeside takes the position that Ohio law does not prohibit the recovery of its fees under the circumstances before the Court. Applicability of § 1822(e) to Attorney’s Fees In Rake v. Wade, 508 U.S. 464, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993), the United States Supreme Court held that an overse-cured mortgagee is entitled to postpetition interest on arrears paid through a Chapter 13 plan. Homeside argues that § 1322(e), added to the Bankruptcy Code as part of the Bankruptcy Reform Act of 1994 shortly after the Supreme Court1 rendered its decision in Rake, serves the exclusive purpose of legislatively overruling Rake so as to prohibit the payment of postpetition interest on arrears unless provided by contract and allowed under state law. Therefore, Homeside concludes, § 1322(e) has no application to the collection of the attorney’s fees portion of an arrearage claim. In support of this argument, Homeside refers the Court to the legislative history of § 1322(e). Section 305. Interest on interest. This" } ]

[ { "docid": "5239135", "title": "", "text": "if they constitute “tacit authorization” of or “deliberate indifference” to constitutional injuries. Avery v. County of Burke, 660 F.2d at 114. A number of courts have interpreted Mo-nell to hold that a municipal policy of authorizing or condoning police misconduct can be inferred where the municipality has been grossly negligent in the supervision and training of its police force. See, e.g., Herrera v. Valentine, 653 F.2d 1220, 1224 (8th Cir.1981); Owens v. Haas, 601 F.2d 1242, 1246-47 (2d Cir.1979), cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979); Popow v. City of Margate, 476 F.Supp. 1237, 1245-46 (D.N.J.1979); Leite v. City of Providence, 463 F.Supp. 585, 590-91 (D.R.I.1978). Generally, a failure to supervise gives rise to § 1983 liability, however, only in those situations in which there is a history of widespread abuse. Only then may knowledge be imputed to the supervisory personnel. See Bowen v. Watkins, 669 F.2d 979, 988-89 (5th Cir.1982). See also McLaughlin v. City of LaGrange, 662 F.2d 1385, 1388 (11th Cir.1981), cert. denied, 456 U.S. 979, 102 S.Ct. 2249, 72 L.Ed.2d 856 (1982). A single act or isolated incidents are normally insufficient to establish supervisory inaction upon which to predicate § 1983 liability. See Berry v. McLemore, 670 F.2d 30 (5th Cir.1982); Avery v. County of Burke, 660 F.2d at 114; Orpiano v. Johnson, 632 F.2d 1096 (4th Cir.1980), cert. denied, 450 U.S. 929, 101 S.Ct. 1387, 67 L.Ed.2d 361 (1982). Cf. Owens v. Haas, 601 F.2d at 1247 (even an individual act of brutality by a county employee may be the basis for municipal liability where it arises from a municipal policy of inadequate training “so grossly negligent as to constitute ‘deliberate indifference.’ ”). Once it has, indeed, been shown that there is a policy established and maintained by the City, the City is liable for any deprivation of constitutional right caused by conduct pursuant to that policy. The causal link may be direct, as in Monell, where the policy commands the injury of which the plaintiff complains. Or the causal link may be supplied by tort principle that holds a" } ]

[ { "docid": "20064595", "title": "", "text": "on persons — here supervisors and the municipal employer of the direct perpetrators — who did not engage in the specific conduct that inflicted injury. It cannot be done on any theory of vicarious liability; principles of respondeat superior do not apply in imposing liability under § 1983. Monell v. Dept. of Social Servs. of the City of New York, 436 U.S. 658, 692-94, 98 S.Ct. 2018, 2036-37, 56 L.Ed.2d 611 (1978). Neither the supervisors in their individual capacities nor the County could be held hable except by proof of their direct culpability in causing the injury to be inflicted by subordinate employees. Id. at 694, 98 S.Ct. at 2037; see Shaw v. Stroud, 13 F.3d 791 (4th Cir.1994) (bases for supervisor liability); Spell v. McDaniel, 824 F.2d 1380 (4th Cir.1987) (bases for municipal liability). Liability might be imposed upon the supervisor-defendants, Cash and Boschulte, only by proof of their direct culpability in causing the injury either by directly authorizing it or by expressly or tacitly condoning by inaction a known pattern of comparable coworker conduct. See Shaw, 13 F.3d at 798-99. There is of course no evidence that either supervisor directly authorized the physical assaults or expressly condoned a known pattern of comparable conduct. To establish culpability by tacit condonation, the only remaining possibility, McWilliams must have proffered evidence that the supervisors knew or reasonably should have known of a comparable pattern of eoworker conduct that was sufficiently widespread to pose a pervasive and unreasonable risk of constitutional injury to McWilliams, and that in the face of that knowledge they took no action to stop it but remained deliberately indifferent to it. See Slakan v. Porter, 737 F.2d 368, 372-73 (4th Cir.1984). McWilliams’ proffer of evidence here failed on the threshold requirement that Cash or Boschulte knew or had any reason to know of the specific incidents of physical assault (as opposed to teasing and “horseplay”) that alone could have involved violation of substantive due process rights. McWilliams repeatedly conceded he had never spoken to anyone, particularly to these two supervisors, about those specific incidents of physical assaults. J.A." }, { "docid": "22759520", "title": "", "text": "incidents, for a supervisor cannot be expected to promulgate rules and procedures covering every conceivable occurrence within the area of his responsibilities. Nor can he reasonably be expected to guard against the deliberate criminal acts of his properly trained employees when he.has no basis upon which to anticipate the misconduct. A supervisor’s continued inaction in the face of documented widespread abuses, however, provides an independent basis for finding he either was deliberately indifferent or acquiesced in the constitutionally offensive conduct of his subordinates. • . . Slakan, 737 F.2d at 372-73 (quoting Orpiano, 632 F.2d at 1101 (citations omitted)). See Lopez v. Robinson, 914 F.2d 486 (4th Cir.1990). Causation is established when the plaintiff demonstrates an “affirmative causal link” between the supervisor’s inaction and the harm suffered by the plaintiff. Slakan, 737 F.2d at 376; see Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). This concept encompasses cause in fact and proximate cause. In Slakan, we noted that the “proof of causation may be direct ... where the policy commands the injury of which the plaintiff complains ... [or] may be supplied by [the] tort principle that holds a person liable for the natural consequences of his actions.” Slakan, 737 F.2d at 376 (quoting Wellington, 717 F.2d at 936). A. Stroud Stroud argues that the plaintiffs have failed to establish each element required for supervisory liability on his part. Stroud first contends that the plaintiffs have not shown that Stroud knew of conduct by Morris which posed a pervasive and unreasonable risk of harm to citizens like Bowen. We disagree. As discussed more fully below, Stroud had knowledge of at least three incidents in which Morris used excessive force which posed an unreasonable risk of harm to arrestees. Next, Stroud argues that he exhibited no deliberate indifference. The plaintiffs, however, have presented more than an isolated incident suggesting Stroud’s deliberate indifference to or implicit authorization of Morris’ abusive conduct. Three separate witnesses have alleged that, when they notified Stroud of assaults by Morris, he responded callously and with apparent amusement. For instance, Stroud never bothered" }, { "docid": "22874346", "title": "", "text": "554 F.2d 653, 654 (5th Cir.1977); or (3) that the supervisory defendants tacitly authorized or were indifferent to the prison physicians’ constitutional violations. See Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.1984) (discussing supervisory liability for an inmate’s beating by prison guards). Miltier concedes that Gwendolyn had unfettered access to VCCW’s medical system. Miltier's claim of supervisory liability appears to rest on the third theory. Supervisory liability based upon constitutional violations inflicted by subordinates is based, not upon notions of re-spondeat superior, but upon a recognition that supervisory indifference or tacit authorization of subordinate misconduct may be a direct cause of constitutional injury. See Slakan, 737 F.2d at 372. The plaintiff “not only must demonstrate that the prisoners face a pervasive and unreasonable risk of harm from some specified source, but he must also show that the supervisor’s corrective inaction amounts to deliberate indifference or ‘tacit authorization of the offensive [practices].’ ” Slakan, 737 F.2d at 373 (quotation omitted). It is insufficient merely to show deliberate indifference to a serious medical need on the part of the subordinate physicians. See Boyce, 595 F.2d 948 (no supervisory liability despite potential deliberate indifference claim against subordinate physicians). Miltier points to correctional expert Joseph P. Gallagher’s testimony to the effect that the four supervisory defendants’ actions went far afield of any accepted correctional standards. Taking his testimony as true, as we must for the purposes of ruling on the propriety of summary judgment for the supervisory defendants, this testimony alone is simply insufficient to create a triable issue. Cf. Rogers, 792 F.2d at 1058 (plaintiff’s allegation that the prison failed to meet standard derived from model standards for good prison administration failed to rise to the level of an eighth amendment violation). Even assuming that the physicians’ failure to provide a cardiac exam was a “pervasive and unreasonable risk of harm from some specified source,” see Slakan, 737 F.2d at 372, it would be an unprecedented extension of the theory of supervisory liability to charge these wardens, not only with ensuring that Gwendolyn received prompt and unfettered medical care, but also with" }, { "docid": "12255697", "title": "", "text": "1983. On June 30, 1983, the district court dismissed the allegations against Farrier and Scurr. An evidentiary hearing was held before a United States magistrate to take evidence concerning appellant’s claims against the remaining defendants. The hearing took place on October 21,1986. Appellant moved to have Farrier and Scurr reinstated as defendants at the conclusion of the hearing. The magistrate later issued his recommendation that the suit be dismissed. The district court adopted that recommendation. Williams appeals. Dismissal of Director and Warden The district court dismissed appellant’s section 1983 complaint against the director and the warden because the pleading asserted only allegations of vicarious liability. The district court properly found that such claims are not actionable under 42 U.S.C. § 1983. Cotton v. Hutto, 577 F.2d 453, 455 (8th Cir.1978). Applying 28 U.S.C. § 1915(d), the court found the charge to be frivolous. Appellant now argues that the complaint also stated a claim of supervisory liability, and, therefore, the dismissal was erroneous. We disagree. A. Appellant’s Complaint The complaint was filed as a proceeding in forma pauperis and appellant drafted the complaint himself. Even so, a court may dismiss such a case if “satisfied that the action is frivolous,” 28 U.S.C. § 1915(d), and vicarious liability is not actionable under 42 U.S.C. § 1983. Cotton, 577 F.2d at 455. There can be no question that appellant’s complaint sought relief solely on a vicarious liability theory. A comparison of the elements necessary to impose supervisory liability with the allegations made in appellant’s complaint bears this out. To prove a supervisory liability claim, the plaintiff must demonstrate that prisoners face a pervasive and unreasonable risk of harm from some specified source and that the supervisor’s corrective inaction amounts to deliberate indifference or “ ‘tacit authorization of the offensive [practices].’ ” Slakan v. Porter, 737 F.2d 368, 373 (4th Cir.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985) (quoting Orpiano v. Johnson, 632 F.2d 1096, 1101 (4th Cir.1980), cert. denied, 450 U.S. 929, 101 S.Ct. 1387, 67 L.Ed.2d 361 (1981)). A single incident, or isolated incidents, do not ordinarily" }, { "docid": "22759519", "title": "", "text": "(1st Cir.1991); Meade v. Grubbs, 841 F.2d 1512, 1527-28 (10th Cir.1988). To satisfy the requirements of the first element, a plaintiff-must show the following: (1) the supervisor’s knowledge of (2) conduct engaged in' by a subordinate (3) where the conduct poses a pervasive and unreasonable risk of constitutional injury to the plaintiff. Slakan, 737 F.2d at 373. Establishing a “pervasive” and “unreasonable” risk of harm requires evidence that the conduct is widespread, or at least has been used on several different occasions and that the conduct engaged in by the subordinate poses an unreasonable risk of harm of constitutional injury. Id. at 373-74. A plaintiff may establish deliberate indifference by demonstrating a supervisor’s “continued inaction in the face of documented widespread abuses.” Id. at 373. See Miltier, 896 F.2d at 848; Withers, 615 F.2d at 158; Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977). The plaintiff assumes a heavy burden of proof in establishing deliberate indifference because: [o]rdinarily, [the plaintiff] cannot satisfy his burden of proof by pointing to a single incident or isolated incidents, for a supervisor cannot be expected to promulgate rules and procedures covering every conceivable occurrence within the area of his responsibilities. Nor can he reasonably be expected to guard against the deliberate criminal acts of his properly trained employees when he.has no basis upon which to anticipate the misconduct. A supervisor’s continued inaction in the face of documented widespread abuses, however, provides an independent basis for finding he either was deliberately indifferent or acquiesced in the constitutionally offensive conduct of his subordinates. • . . Slakan, 737 F.2d at 372-73 (quoting Orpiano, 632 F.2d at 1101 (citations omitted)). See Lopez v. Robinson, 914 F.2d 486 (4th Cir.1990). Causation is established when the plaintiff demonstrates an “affirmative causal link” between the supervisor’s inaction and the harm suffered by the plaintiff. Slakan, 737 F.2d at 376; see Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). This concept encompasses cause in fact and proximate cause. In Slakan, we noted that the “proof of causation may be direct ... where the policy commands" }, { "docid": "22874345", "title": "", "text": "indifferent to Gwendolyn’s medical needs.” J.A. at 741. Nevertheless, be cause Ledbetter failed to repeat this testimony in her deposition, the district court held that, under Rogers, Ledbetter’s failure justified summary judgment in favor of nurses Spencer and Barker. As discussed above, this misinterprets Rogers. Taken as true for the purposes of reviewing the district court’s grant of summary judgment, inmates Grandi, Taylor, and Benton’s affidavits, coupled with Ms. Led-better’s testimony, create a triable issue on the question of the defendant nurses’ deliberate indifference. This evidence manifestly forecloses summary judgment for the nurses. Ill We turn now to the liability of the defendant YCCW officials—Wardens Downes and Burton and defendant VDOC officials Murray and Kessler (hereinafter referred to as supervisory defendants). Section 1983 liability on the part of the supervisory defendants requires a showing that: (1) the supervisory defendants failed promptly to provide an inmate with needed medical care, see Boyce v. Alizaduh, 595 F.2d 948, 953 (4th Cir.1979); (2) that the supervisory defendants deliberately interfered with the prison doctors’ performance, see Gamble v. Estelle, 554 F.2d 653, 654 (5th Cir.1977); or (3) that the supervisory defendants tacitly authorized or were indifferent to the prison physicians’ constitutional violations. See Slakan v. Porter, 737 F.2d 368, 372 (4th Cir.1984) (discussing supervisory liability for an inmate’s beating by prison guards). Miltier concedes that Gwendolyn had unfettered access to VCCW’s medical system. Miltier's claim of supervisory liability appears to rest on the third theory. Supervisory liability based upon constitutional violations inflicted by subordinates is based, not upon notions of re-spondeat superior, but upon a recognition that supervisory indifference or tacit authorization of subordinate misconduct may be a direct cause of constitutional injury. See Slakan, 737 F.2d at 372. The plaintiff “not only must demonstrate that the prisoners face a pervasive and unreasonable risk of harm from some specified source, but he must also show that the supervisor’s corrective inaction amounts to deliberate indifference or ‘tacit authorization of the offensive [practices].’ ” Slakan, 737 F.2d at 373 (quotation omitted). It is insufficient merely to show deliberate indifference to a serious medical need on the" }, { "docid": "4964510", "title": "", "text": "inmate with needed medical care, ...; (2) that the supervisory defendants deliberately interfered with the prison doctors’ performance ....; or (3) that the supervisory defendants tacitly authorized or were indifferent to the prison physicians’ constitutional violations. Id. at 854 (citations omitted). It is indisputable that Plaintiff was provided copious access to the prison’s medical facilities, and that he makes no claims that the five Defendants supervising, in some capacity, the provision of health care interfered with a decision to operate on Plaintiff. Accordingly, the Court interprets Plaintiff’s Complaint as alleging the third basis of liability discussed above. The Miltier opinion makes clear that mere knowledge of the medical decisions made by prison physicians, or the prisoner’s disagreement with these decisions, does not constitute deliberate indifference: The plaintiff “not only must demonstrate that the prisoners face a pervasive and unreasonable risk of harm from some specified source, but he must also show that the supervisor’s corrective inaction amounts to deliberate indifference or ‘tacit authorization of the offensive [practices].’ ”... It is insufficient merely to show deliberate indifference to a serious medical need on the part of the subordinate physicians. Id. (quoting Slakan v. Porter, 737 F.2d 368, 373 (4th Cir.1984)). The opinion continued: Even assuming that the physicians’ [actions were] a “pervasive and unreasonable risk of harm from some specified source,” ... it would be an unprecedented extension of the theory of supervisory liability to charge these wardens, not only with ensuring that [plaintiff] received prompt and unfettered medical care, but also with ensuring that their subordinates employed proper medical procedures — procedures learned during several years of medical school, internships, and residencies. No record evidence suggests why the wardens should not have been entitled to rely upon their health care providers’ expertise_ Although record evidence suggests that the wardens were aware of [plaintiffs] deterioration, it would be ironic indeed if their awareness, resulting from close monitoring of [plaintiffs] condition, became the vehicle by which they were rendered liable under § 1983 for their subordinates’ misconduct. Id. at 854-55. Based on the above, it is clear that these five Defendants may" }, { "docid": "23061441", "title": "", "text": "such brutality is well-documented, but it rises to new levels when the instrument of harm, even when properly used, possesses inherently dangerous characteristics capable of causing serious and perhaps irreparable injury to the victim. High-pressure water hoses, tear, gas, and billy clubs, though legitimate forms of control in certain circumstances, become instruments of brutality when used indiscriminately against a defenseless prisoner. See, e.g., Spain v. Procunier, 600 F.2d 189 (9th Cir.1979). Even when a prisoner’s conduct warrants some form of response, evolving norms of decency require prison officials to use techniques and procedures that are both humane and restrained. The prison guards’ heavy-handed use of water hoses, billy clubs, and tear gas against Slakan unquestionably crossed the line separating necessary force from brutality. The prisoner was locked in a one-man cell at the time of the incident and posed no direct physical threat to other inmates or any of the guards. His abusive language may have deserved punishment through the prison disciplinary machinery, but it assuredly did not justify subjecting him to steady blasts of water from two high-pressure hoses or beating him savagely around the head and body with billy clubs. The guards’ conduct indisputably deprived Slakan of a right secured by the Constitution and the laws of the United States. Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). Our principal focus, then, is determining whether the responsibility for that deprivation can be traced to the actions of the guards’ supervisors. A The decisions of this Court have firmly established the principle that supervisory officials may be held liable in certain circumstances for the constitutional injuries inflicted by their subordinates. See Orpiano v. Johnson, 632 F.2d 1096, 1101 (4th Cir.1980), cert. denied, 450 U.S. 929, 101 S.Ct. 1387, 67 L.Ed.2d 361 (1981). See also Wellington, 717 F.2d at 936; Withers v. Levine, 615 F.2d 158 (4th Cir.1980). Liability in this context is not premised on respondeat superior, Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978), but on a recognition that supervisory indifference or tacit" }, { "docid": "23061443", "title": "", "text": "authorization of subordinates’ misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care. Orpiano, 632 F.2d at 1101. The plaintiff, of course, assumes a heavy burden of proof in supervisory liability cases. He not only must demonstrate that the prisoners face a pervasive and unreasonable risk of harm from some specified source, but he must show that the supervisor’s corrective inaction amounts to deliberate indifference or “tacit authorization of the offensive [practices]”. Orpiano, 632 F.2d at 1101 (quoting Withers v. Levine, 615 F.2d 158, 161)(4th Cir.1981). Ordinarily, he cannot satisfy his burden of proof by pointing to a single incident or isolated incidents, Orpiano, 632 F.2d at 1101, for a supervisor cannot be expected to promulgate rules and procedures covering every conceivable occurrence within the area of his responsibilities. Nor can he reasonably be expected to guard against the deliberate criminal acts of his properly trained employees when he has no basis upon which to anticipate the misconduct. A supervisor’s continued inaction in the face of documented widespread abuses, however, provides an independent basis for finding he either was deliberately indifferent or acquiesced in the constitutionally offensive conduct of his subordinates. Id. See also Wellington, 717 F.2d at 936. Supervisory liability in the civil rights context may extend to the highest levels of state government. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The outer limits of liability in any given case are determined ultimately by pinpointing the persons in the decisionmaking chain whose deliberate indifference permitted the constitutional abuses to continue unchecked. The final determination “generally is one of fact, not law,” Avery v. County of Burke, 660 F.2d 111, 114 (4th Cir.1981), but state statutes fixing the administrator’s legal duties provide a useful guide in determining who had the responsibility and capability to end the offensive practices. We are satisfied that the evidence offered by Slakan against Warden Garrison, Director Edwards, and Secretary Reed established the supervisory liability of these government officials. Cf. McElveen v. Hutto, 725 F.2d 954 at 958 (4th Cir.1984)" }, { "docid": "21581114", "title": "", "text": "liability for failing to supervise its employees properly. See Shaw v. Stroud, 13 F.3d 791 (4th Cir.1994), Wellington v. Daniels, 717 F.2d 932 (4th Cir.1983). This liability is “not premised upon respondeat superior but upon ‘a recognition that supervisory indifference or tacit authorization of subordinates’ misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care.’ ” Shaw, 13 F.3d at 798 (quoting Slakan v-. Porter, 737 F.2d 368, 376 (4th Cir.1984)). Supervisory liability can be- borne by a governmental-entity even if the plaintiff does not name a specific supervisory official as a defendant. See, e.g., Avery v. ■Burke County, 660 F.2d 111 (4th Cir.1981). However, when advancing a failure to supervise claim, “liability ultimately is determined ‘by pinpointing the persons in the decisionmaking chain whose deliberate indifference permitted the [underlying] constitutional abuses to continue unchecked.’ ” Shaw v: Stroud, 13 F.3d 791, 798 (4th Cir.l994)(quoting Slakan, 737 F.2d at 376.). In Shaw, our Court of Appeals explained that there are “three elements necessary to establish supervisory liability under § 1983.” Shaw, -13 F.3d at 799. Those elements are: ■ (1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed ‘a pervasive and unreasonable risk’ of constitutional injury to citizens like the plaintiff; (2) that the supervisor’s response to that knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged offensive practices,’; and (3) that there was an ‘affirmative causal link’ between the supervisor’s inaction and the ■ particular constitutional injury suffered by the plaintiff. Id.; see also Wilkins v. Montgomery, 751 F.3d 214, 226-26 (4th Cir.2014)(quoting test articulated in Shaw). Evidence in the record does suggest that members of the Vienna police department with supervispry power were aware that Pifer had been the subject of. numerous complaints. The evidence illustrates, for example, that Pifer had been subjected to oral evaluations because of complaints from the public about his policing. See Pifer Dep. At 19. As previously noted, there is evidence suggesting that many of these complaints involved Pifer’s" }, { "docid": "22759518", "title": "", "text": "this issue is ordinarily óne of fact, not law. Id. See Avery v. County of Burke, 660 F.2d 111, 114 (4th Cir.1981). We have set forth three elements necessary to establish supervisory liability undér § 1983: (1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor’s response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices,”; and (3) that there was an “affirmative causal link” between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff. See Mittier v; Beorn, 896 F.2d 848, 854 (4th Cir.1990); Slakan, 737 F.2d at 373; Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir.1983). See City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989); Larez v. City of Los Angeles, 946 F.2d 630, 645-46 (9th Cir.1991); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 572 (1st Cir.1991); Meade v. Grubbs, 841 F.2d 1512, 1527-28 (10th Cir.1988). To satisfy the requirements of the first element, a plaintiff-must show the following: (1) the supervisor’s knowledge of (2) conduct engaged in' by a subordinate (3) where the conduct poses a pervasive and unreasonable risk of constitutional injury to the plaintiff. Slakan, 737 F.2d at 373. Establishing a “pervasive” and “unreasonable” risk of harm requires evidence that the conduct is widespread, or at least has been used on several different occasions and that the conduct engaged in by the subordinate poses an unreasonable risk of harm of constitutional injury. Id. at 373-74. A plaintiff may establish deliberate indifference by demonstrating a supervisor’s “continued inaction in the face of documented widespread abuses.” Id. at 373. See Miltier, 896 F.2d at 848; Withers, 615 F.2d at 158; Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977). The plaintiff assumes a heavy burden of proof in establishing deliberate indifference because: [o]rdinarily, [the plaintiff] cannot satisfy his burden of proof by pointing to a single incident or isolated" }, { "docid": "22759517", "title": "", "text": "Cir.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985); Orpiano v. Johnson, 632 F.2d 1096 (4th Cir.1980), cert. denied, 450 U.S. 929, 101 S.Ct. 1387, 67 L.Ed.2d 361 (1981); Withers v. Levine, 615 F.2d 158 (4th Cir.1980). In Slakan, we reasoned that liability is not premised upon respondeat superior but upon “a recognition that supervisory indifference or tacit authorization of subordinates’ misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care.” Slakan, 737 F.2d at 372-73. Recognizing that supervisory liability can extend “to the highest levels of state government,” we have noted that liability ultimately is determined “by pinpointing the persons in the decisionmaking chain whose deliberate indifference permitted the constitutional abuses to continue unchecked.” Slakan, 737 F.2d at 376. See Spell v. McDaniel, 591 F.Supp. 1090, 1109-10 (E.D.N.C.1984) (determining issue on supervisory liability is whether defendant proximately caused a violation of the plaintiffs rights by doing some thing or failing to do something he should have done). We have also noted that this issue is ordinarily óne of fact, not law. Id. See Avery v. County of Burke, 660 F.2d 111, 114 (4th Cir.1981). We have set forth three elements necessary to establish supervisory liability undér § 1983: (1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed “a pervasive and unreasonable risk” of constitutional injury to citizens like the plaintiff; (2) that the supervisor’s response to that knowledge was so inadequate as to show “deliberate indifference to or tacit authorization of the alleged offensive practices,”; and (3) that there was an “affirmative causal link” between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff. See Mittier v; Beorn, 896 F.2d 848, 854 (4th Cir.1990); Slakan, 737 F.2d at 373; Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir.1983). See City of Canton v. Harris, 489 U.S. 378, 390, 109 S.Ct. 1197, 1205, 103 L.Ed.2d 412 (1989); Larez v. City of Los Angeles, 946 F.2d 630, 645-46 (9th Cir.1991); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 572" }, { "docid": "40375", "title": "", "text": "deputies. A supervisor may be liable when his deliberate indifference to or acquiescence in a subordinate’s misconduct is affirmatively linked to the constitutional harm suffered by a plaintiff. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Slakan v. Porter, 737 F.2d 368 (4th Cir.1984), cert. denied sub nom., Reed v. Slakan, 470 U.S. 1035, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985). Reagan bears the heavy burden of showing that McCrary’s inaction amounted to deliberate indifference to or tacit authorization of the illegal arrests and the use of excessive force. Reagan “cannot satisfy his burden of proof by pointing to a single incident or isolated incidents.” Slakan, 737 F.2d at 373 (citing Orpiano v. Johnson, 632 F.2d 1096, 1101 (4th Cir.1980), cert. denied, 450 U.S. 929, 101 S.Ct. 1387, 67 L.Ed.2d 361 (1981)). Thus, “a failure to supervise gives rise to § 1983 liability ... only in those situations in which there is a history of widespread abuse.” Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir.1983) (emphasis added). Reagan has presented no evidence of McCrary’s “deliberate indifference” or “tacit authorization” to substantiate his conclusory allegations. In his deposition, Reagan admitted that he had no evidence of McCrary’s failure to instruct, supervise, control and discipline his deputies. Reagan Depo., p. 76, 1. 14- p. 78, 1. 22. In contrast, Hampton has stated that he has developed a certain expertise in handling ar-restees as a result of experience and the completion of over 1,500 hours of formal instruction in his twenty two year law enforcement career. Hampton Depo., p. 15, 11. 4-23. Hampton could not recall any complaints brought against him, nor could he recall any investigations of his conduct. Id. at p. 20, 1. 19- p. 22, 1. 5. Furthermore, Hampton was a defendant in only one suit which was dismissed in the summer of 1977. Id. at p. 22, 1. 6- p. 23, 1. 4. These facts, even in the light most favorable to Reagan, reveal an absence of widespread abuse necessary to establish the requisite fault. Similarly, Reagan has failed to show an “affirmative" }, { "docid": "23628908", "title": "", "text": "to citizens like the plaintiff’; (2) “that the supervisor’s response to that knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged offensive practices’ and (3) “that there was an ‘affirmative causal link’ between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff.” Id. at 799 (citations omitted). Under the first prong of Share, the conduct engaged in by the supervisor’s subordinates must be “pervasive,” meaning that the “conduct is widespread, or at least has been used on several different occasions.” Id. Furthermore, in establishing “deliberate indifference” under Shaw’s second prong, a plaintiff “[o]rdinarily ... cannot satisfy his burden of proof by pointing to a single incident or isolated incidents ... for a supervisor cannot be expected ... to guard against the deliberate criminal acts of his properly trained employees when he has no basis upon which to anticipate the misconduct.” Slakan v. Porter, 737 F.2d 368, 373 (4th Cir.1984). Deliberate indifference, however, may be satisfied by showing “[a] supervisor’s continued inaction in the face of documented widespread abuses.” Id. b. Lieutenant McQuillan contends that the Appellees did not present any evidence of prior misconduct by officers under his supervision, and that the first two elements of the Appellees’ supervisory liability claims therefore fail as a matter of law. In response, the Appellees concede that they did not present any evidence of misconduct by McQuillan’s subordinates prior to April 27-28, 1995. Instead, they contend that they have satisfied the requirements of supervisory liability through two other avenues. First, they assert that it is the customary practice of the County Police to hold witnesses until the lead investigator or his supervisor authorized their release, and that this custom satisfies the “widespread and pervasive” and “deliberate indifference” requirements mandated by Shaw. In the alternative, the Appellees maintain that they proved that multiple unconstitutional acts occurred on the night of April 27-28,1995, and that the presence of so much unlawful activity in that short time frame satisfies the requirements of Shaw. The Appellees’ contentions have no merit. First, although evidence that the County Police" }, { "docid": "23628907", "title": "", "text": "as Swope knew, Randall could have been at the CID Station voluntarily. Thus, there is no basis on which the jury could reasonably conclude that Swope knew Randall was involuntarily present in the CID Station. Moreover, there is no evidence that Ricker knew anything about Randall’s presence at the CID Station. As such, the evidence is insufficient to support the bystander liability verdict against Swope and Ricker as to any of the Appellees. 4. Lieutenant McQuillan also challenges the verdict against him, which is based on supervisory liability. McQuillan maintains that, as a matter of law, supervisory liability cannot attach in the absence of prior constitutional abuses by subordinates. He contends that the evidence fails to show any such abuses. a. As we enunciated in Shaw v. Stroud, 13 F.3d 791 (4th Cir.1994), supervisory liability may attach under § 1983 if a plaintiff can establish three elements. These are: (1) “that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed ‘a pervasive and unreasonable risk’ of constitutional injury to citizens like the plaintiff’; (2) “that the supervisor’s response to that knowledge was so inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged offensive practices’ and (3) “that there was an ‘affirmative causal link’ between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff.” Id. at 799 (citations omitted). Under the first prong of Share, the conduct engaged in by the supervisor’s subordinates must be “pervasive,” meaning that the “conduct is widespread, or at least has been used on several different occasions.” Id. Furthermore, in establishing “deliberate indifference” under Shaw’s second prong, a plaintiff “[o]rdinarily ... cannot satisfy his burden of proof by pointing to a single incident or isolated incidents ... for a supervisor cannot be expected ... to guard against the deliberate criminal acts of his properly trained employees when he has no basis upon which to anticipate the misconduct.” Slakan v. Porter, 737 F.2d 368, 373 (4th Cir.1984). Deliberate indifference, however, may be satisfied by showing “[a] supervisor’s continued inaction in the face of" }, { "docid": "23061442", "title": "", "text": "water from two high-pressure hoses or beating him savagely around the head and body with billy clubs. The guards’ conduct indisputably deprived Slakan of a right secured by the Constitution and the laws of the United States. Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). Our principal focus, then, is determining whether the responsibility for that deprivation can be traced to the actions of the guards’ supervisors. A The decisions of this Court have firmly established the principle that supervisory officials may be held liable in certain circumstances for the constitutional injuries inflicted by their subordinates. See Orpiano v. Johnson, 632 F.2d 1096, 1101 (4th Cir.1980), cert. denied, 450 U.S. 929, 101 S.Ct. 1387, 67 L.Ed.2d 361 (1981). See also Wellington, 717 F.2d at 936; Withers v. Levine, 615 F.2d 158 (4th Cir.1980). Liability in this context is not premised on respondeat superior, Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978), but on a recognition that supervisory indifference or tacit authorization of subordinates’ misconduct may be a causative factor in the constitutional injuries they inflict on those committed to their care. Orpiano, 632 F.2d at 1101. The plaintiff, of course, assumes a heavy burden of proof in supervisory liability cases. He not only must demonstrate that the prisoners face a pervasive and unreasonable risk of harm from some specified source, but he must show that the supervisor’s corrective inaction amounts to deliberate indifference or “tacit authorization of the offensive [practices]”. Orpiano, 632 F.2d at 1101 (quoting Withers v. Levine, 615 F.2d 158, 161)(4th Cir.1981). Ordinarily, he cannot satisfy his burden of proof by pointing to a single incident or isolated incidents, Orpiano, 632 F.2d at 1101, for a supervisor cannot be expected to promulgate rules and procedures covering every conceivable occurrence within the area of his responsibilities. Nor can he reasonably be expected to guard against the deliberate criminal acts of his properly trained employees when he has no basis upon which to anticipate the misconduct. A supervisor’s continued inaction in the face of documented" }, { "docid": "40374", "title": "", "text": "supervisory (personal) liability, while official-capacity claims seek to impose municipal liability. At this time, Defendants have moved for summary judgment on all these claims. The record consists of the pleadings and supporting briefs from both parties, and the depositions of Reagan and Hampton. Reagan has conducted extensive discovery. The standard for ruling on Rule 56 motion is clear. Once the movant demonstrates the absence of material issues of fact, summary judgment is proper “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, 317, 106 S.Ct. 2548, 2548, 91 L.Ed.2d 265 (1986). Reagan bears the heavy burden of proof on each element of the statutory claims. Applied to the facts of this case, the law requires the court to grant summary judgment in favor of McCrary on all claims. A. Supervisory Liability. Reagan’s individual-capacity claim essentially concerns McCrary’s alleged failure to supervise his deputies. A supervisor may be liable when his deliberate indifference to or acquiescence in a subordinate’s misconduct is affirmatively linked to the constitutional harm suffered by a plaintiff. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Slakan v. Porter, 737 F.2d 368 (4th Cir.1984), cert. denied sub nom., Reed v. Slakan, 470 U.S. 1035, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985). Reagan bears the heavy burden of showing that McCrary’s inaction amounted to deliberate indifference to or tacit authorization of the illegal arrests and the use of excessive force. Reagan “cannot satisfy his burden of proof by pointing to a single incident or isolated incidents.” Slakan, 737 F.2d at 373 (citing Orpiano v. Johnson, 632 F.2d 1096, 1101 (4th Cir.1980), cert. denied, 450 U.S. 929, 101 S.Ct. 1387, 67 L.Ed.2d 361 (1981)). Thus, “a failure to supervise gives rise to § 1983 liability ... only in those situations in which there is a history of widespread abuse.” Wellington v. Daniels, 717 F.2d 932, 936 (4th Cir.1983) (emphasis added). Reagan has" }, { "docid": "12255698", "title": "", "text": "forma pauperis and appellant drafted the complaint himself. Even so, a court may dismiss such a case if “satisfied that the action is frivolous,” 28 U.S.C. § 1915(d), and vicarious liability is not actionable under 42 U.S.C. § 1983. Cotton, 577 F.2d at 455. There can be no question that appellant’s complaint sought relief solely on a vicarious liability theory. A comparison of the elements necessary to impose supervisory liability with the allegations made in appellant’s complaint bears this out. To prove a supervisory liability claim, the plaintiff must demonstrate that prisoners face a pervasive and unreasonable risk of harm from some specified source and that the supervisor’s corrective inaction amounts to deliberate indifference or “ ‘tacit authorization of the offensive [practices].’ ” Slakan v. Porter, 737 F.2d 368, 373 (4th Cir.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985) (quoting Orpiano v. Johnson, 632 F.2d 1096, 1101 (4th Cir.1980), cert. denied, 450 U.S. 929, 101 S.Ct. 1387, 67 L.Ed.2d 361 (1981)). A single incident, or isolated incidents, do not ordinarily satisfy this burden. Orpiano, 632 F.2d at 1101. In his complaint, appellant mentions the warden and director in only two contexts. He first mentions them to substantiate his claim that the correctional staff members were negligent in not coming to his aid. The staff members were apparently negligent, in appellant’s view, because the warden and director “and or his subordinates * * * should have known that [appellant] was being treated for lower back disabilities * * * which rendered [appellant] virtually helpless.!!” Complaint at 4. Appellant again mentioned these two defendants in the following manner where he listed his claims: 1. That the staff members were negligent; 2. That the disciplinary report investigation violated his due process rights; 3. That the director is legally responsible for the overall operation of the ISP; and 4. The warden is legally responsible for the operation of ISP and inmate welfare. See Complaint at 4-5. We recognize that a prisoner’s pro se civil rights complaint is to be liberally construed. Wilson v. Iowa, 636 F.2d 1166, 1167 (8th" }, { "docid": "10934636", "title": "", "text": "under § 1983 only if its employees’ unconstitutional acts implemented or otherwise represented the municipality’s unconstitutional official policy or custom. Monell v. New York City Department of Social Services, 436 U.S. 658, 690-694, 98 S.Ct. 2018, 2035-2037, 56 L.Ed.2d 611 (1978). The doctrine of respondeat superior as a basis of the liability of either an individual or a municipality has been expressly rejected. Polk County v. Dodson, 454 U.S. at 325,102 S.Ct. at 453; Vinnedge v. Gibbs, 550 F.2d at 928. However, officials and municipalities may be held liable for their omissions as well as their commissions. Wellington v. Daniels, 717 F.2d 932, 935-936 (4th Cir.1983); Avery v. County of Burke, 660 F.2d 111, 114 (4th Cir.1981); Withers v. Levine, 615 F.2d 158, 161 (4th Cir.1980), cert. den. 449 U.S. 849, 101 S.Ct. 136, 66 L.Ed.2d 59 (1980). Inaction and omissions are actionable if, and only if, they constitute “tacit authorization” of, or deliberate indifference to, the constitutional injuries. Wellington v. Daniels, 717 F.2d at 935. Additionally, the defendants herein can be held liable for their supervisory practices, whether in the form of commissions or omissions, if and only if those practices are found to have directly contributed to the plaintiffs’ injuries. See Duchesne v. Sugarman, 566 F.2d 817, 832 (2nd Cir.1977). Generally a single, isolated incident of wrongdoing on the part of a subordinate has been held insufficient to establish supervisory inaction of a constitutional magnitude. This is because knowledge of the potential for abuse generally may not be imputed to the supervisory personnel unless there has been a history of widespread abuse. Wellington v. Daniels, 717 F.2d at 936. However, the Court is satisfied that evidence that a supervisor had specific advance knowledge of a planned abuse, and acquiesced therein, would supply a basis for finding that the supervisor “tacitly authorized” the planned abuse, even absent a history of abuse. Similarly, a discrete act of a city official may be a sufficient basis on which to hold a city liable, if the evidence shows that the act in fact did represent official policy. See Himmelbrand v. Harrison, 484" }, { "docid": "23167906", "title": "", "text": "Finally, the assistant state district attorney testified that he had prosecuted two police officers for assaulting suspects. Id. at 1393. In sum, Spell introduced voluminous evidence both of prior incidents and of official encouragement of exactly the same constitutional injury that he had suffered. By contrast, to hold the City of Danville liable on the record before us would be to impose liability without cause. We therefore hold that the district court properly granted summary judgment in favor of the City; III. Carter’s supervisory liability claim against Chief Moms fails for similar reasons. We have, recognized section 1983 claims against supervisory employees where citizens “face a pervasive and unreasonable risk of harm from some specified source ... [and] the supervisor’s corrective inaction amounts to deliberate indifference or tacit authorization of the offensive [practices].” Slakan v. Porter, 737 F.2d 368, 373 (4th Cir.1984) (internal quotation marks omitted). As with municipál liability, respondeat superior is not the standard. A plaintiff must show actual or constructive knowledge of a risk of constitutional injury, deliberate indifference to that risk, and “an ‘affirmative causal link’ between the supervisor’s inaction and the particular constitutional injury suffered by the plaintiff.” Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir.1994). The record is devoid of evidence supporting this claim. Carter offers only one prior incident similar to her own of which Chief Morris was or should have been aware- — Heffinger’s 1987 unlawful arrest. As noted, Morris’ treatment of that incident tends to negate, not support, a claim of deliberate indifference. When a supervisor investigates a claim of improper police conduct and suspends the offending officer, it simply cannot be said that he is indifferent to the risk of the underlying constitutional violation. The district court correctly dismissed Carter’s supervisory liability claim against Morris. IV. A. We now turn to Carter’s state tort claims against the City, which the district court read to include assault, battery, and false imprisonment. In Virginia “as a general rule, the sovereign is immune ... from actions at law for damages.” Hinchey v. Ogden, 226 Va. 234, 307 S.E.2d 891, 894(Va.1983). Although Carter" } ]

[ { "docid": "22078260", "title": "", "text": "up in the answer. (2.) Nothing was ever paid or tendered to .the libellants for that part of their claim now in controversy, and it is well settled law that an agreement of the kind suggested is no defence to a meritorious claim for salvage, unless it is set up in the answer with an averment of tender or payment. Such an agreement does not alter the character of the service rendered, so that if it was in fact a salvage service, it is none the less so because the compensation to be received is regulated by the terms of an agreement between the master of the ship or the owners of the salved property. Defences in salvage suits, as well as in other suits in admiralty, must be set up in the answer, and if not, and the services proved were salvage services, the libellants must prevail. Agreements of the kind suggested ought certainly to be set up in the answer, as it is not every agreement which will have the effect to diminish a claim for salvage compensation. On the contrary, the rule is that nothing short of a contract to pay a given sum for the services to be rendered, or a binding engagement to pay at all events, whether successful or unsuccessful in the enterprise, will operate as a bar to a meritorious claim for salvage. (3.) But if the agreement had been set up in the answer, it would constitute no defence, as by the terms of the instrument the libellants were not to receive any compensation whatever, or be entitled to any lien upon the property, unless the materials and machinery were substantially saved, so that it is clear that the compensation was not to be paid at all events. IV. Discussion as to the amount allowed in the decree is hardly necessary, as it is clear that it does not much exceed the amount the claimants agreed to pay for the services, in case the libellants wmre successful in raising the ship and in saving the materials intended for the construction of the" } ]

[ { "docid": "8867723", "title": "", "text": "not for the reparation or fitment of the vessel, and in no respect maritime, as being nautical in its cbaracter, or distinguishable from ordinary services rendered in going to and from the vessel, or incidental to her probable employment at sea. I shall therefore disallow the claim entirely in this action.” But he allowed the libelant a small sum for performing a mail-, time service while keeper, which consisted in moving the vessel; from her anchorage further out into the bay by the direction of a health officer. To do this the libelant was compelled to get., under way and navigate her to the designated place. This, the judge held, “was comparatively a small service, but it was in Us nature maritime, and the libelant had a right to resort to this court to receive a proper compensation for it.” In the case at bar there was nothing to show that the Sirius was even once moved from her anchorage. In The Island City, 1 Low. 375, Fed. Cas. No. 7,109, Judge Lowell held, in 1869,—seven years prior to his criticism of Gurney v. Crockett, supra,—that a ship keeper of a domestic vessel, which was being repaired for a new use, had no lien on her for his wages by the general maritime law. The learned judge said: “Nor has Holden a lien. He was a ship keeper, and made himself useful in taking care of the machinery, etc. The contract with such a person has been decided not to be maritime. The Thomas Scattergood, Gilp. 1, Fed. Cas. No. 11,106; The S. G. Owens, 1 Wall. Jr. 359, Fed. Cas. No. 17,310. I do not fully agree Avith those judgments in their application io a foreign vessel, but in such a case as this they are sound.” The service which the libelant rendered in that case was very similar to those in the case at bar. The case of The Thomas Scattergood, Gilp. 1, Fed. Cas. No. 11,106, cited by Judge Lowell, is also in point. There the first officer, after the return of the vessel from her voyage" }, { "docid": "6694867", "title": "", "text": "v. Arctic Orion Fisheries, 83 F.3d 271, 273 (9th Cir.1996). We also review for clear error a finding that a party did or did not breach a duty of care. Vollendorff v. United States, 951 F.2d 215, 217 (9th Cir.1991). Evi-dentiary rulings are reviewed for an abuse of discretion, and we will not reverse absent some prejudice. EEOC v. Pape Lift, Inc., 115 F.3d 676, 680 (9th Cir.1997) (Pape Lift). We review an award of costs for an abuse of discretion but review whether the trial court had the authority to award costs de novo. United States ex rel. Lindenthal v. General Dynamics Corp., 61 F.3d 1402, 1412 n. 13 (9th Cir.1995). Whether the trial court used the correct legal standard in computing dam ages is reviewed de novo. Howard v. Crystal Cruises, Inc., 41 F.3d 527, 530 (9th Cir.1994). II We now analyze whether the trial court clearly erred in finding that the parties entered into a salvage contract, that the contract was not subsequently modified, and that the plaintiffs are entitled to payment for their services under that contract. A. Whether a contract is one for tow-age or for salvage has several consequences. If the fee is not agreed to, salvage service commands a larger award. 1 Martin J. Norris, The Law of Seamen § 9:45 (4th ed. 1985) (Norris). Under a salvage contract, not only is the vessel liable for payment, but the cargo is as well. 3A Martin J. Norris, Benedict on Admiralty § 186 (7th ed. 1993) (Benedict). A salvage contract also creates a “preferred” maritime lien, which has a higher priority than the maritime lien created by a towage contract. Compare 46 U.S.C. § 31301(5) with § 31342(a). Finally, the crew of the salving vessel has additional rights under a salvage contract. Norris at § 9:45. The character of the service rendered determines whether a contract is one for salvage. The Camanche, 75 U.S. (8 Wall.) 448, 477, 19 L.Ed. 397 (1869) (Camanche ). There is a marked and clear distinction between a towage and a salvage service. When a tug is called or" }, { "docid": "8867729", "title": "", "text": "decide that the courts of this country would give a lien in every ease where it was given by the Commercial Code of France. Indeed, many of these liens, particularly those for the wages of the master, for supplies furnished for domestic vessels, and for the expense of building and equipping, have been held by the supreme court not to exist in this country. Where the contract is maritime, I should be very reluctant to deny the lien, but where, as in this case, the services are rendered, not in aid of the navigation of the vessel, but while she is laid up for the winter, it seems to me the service is not maritime, and consequently that the party is not entitled to his lien. Nor do I think the lien is saved in this case because no new contract was made, but the party remained on board during the winter, without having been paid in the fall for his services as cook. Had his services as watchman been performed merely as an incident to the navigation of the vessel, and while she was lying up in some port, it would have been saved by the rulings in such eases as The Gazelle, 1 Spr. 378, Fed. Cas. No. 5,289; Pitman v. Hooper, 3 Sumn. 286, Fed. Cas. No. 11,186; Brown v. Lull, 2 Sumn. 443, Fed. Cas. No. 2,018; The Jane and Matilda, 1 Hagg. Adm. 187; The Canton, 1 Spr. 437, Fed. Cas. No. 2,388. But the contract as cook and seaman terminated with the season of navigation and with the discharges of the crew, and, if libelant remained on board while the vessel was laid up in winter quarters, he must be held to have remained, by im plication, under a different contract. Although no now contract was actually made, circumstances had intervened which put an end to the first contract, and he mnst.be held to know that, if he remained on board during the winter, it was not in the capacity of a seaman or cook.” In The E. A. Barnard, 2 Fed. 712, Judge" }, { "docid": "18293317", "title": "", "text": "1976. The Suits in Admiralty Act, section 742, provides in part that in cases where, if a vessel were privately owned or if cargo were privately owned, a proceeding in admiralty could be maintained, then a nonjury proceeding in personam could be brought against the United States. Section 781 of the Public Vessels Act provides for the bringing of a libel in personam in admiralty against the United States for compensation for towage and salvage services, rendered to a public vessel of the United States. The plaintiff here asserts two theories of recovery: (1) the Maritime Lien Act, 46 U.S.C. § 971 (creation of a maritime lien against a vessel which has received services at the request of its owner); (2) a maritime lien under the General Maritime Law (a lien on cargo which has been carried and the freight has not been paid). The first theory concerns a lien upon a vessel, whereas the second concerns a lien on cargo. First, the court concludes that the plaintiff is not entitled to recover on a theory based upon the Maritime Lien Act. The statute provides that any person who furnishes repairs, supplies, towage, use of dry dock or marine railway, or other necessaries, to any vessel . . . upon the order of the owner of such vessel, or of a person authorized by the owner, shall have a maritime lien. Plaintiff asserts that the services provided to these LCMs fell within the definition of “furnishing repairs” or “furnishing other necessaries” to a vessel. The LCMs were still “vessels”, although they were carried aboard a barge while being brought to Boston from Norfolk. While retaining the characteristics of a “vessel”, each of them became a part of the cargo, and were referred to as “barge cargo” in the contract between Farrell and Bromfield. There can be no question that a necessary service was rendered to those vessels by way of transportation of them to Boston for further work to be done on them here. The United States and Bromfield could have arranged for these vessels to have been towed from" }, { "docid": "6399839", "title": "", "text": "according to the measure of the maritime law; as the claim stands upon the request of the master of the steamer to go to the assistance of the bark, a compliance with that request, and the performance of a service which is salvage in its incidents and nature. All the cases show that the relief of property from an impending peril of the sea, by the voluntary exertions of those who are under no legal obligations to render assistance, and the consequent ultimate safety of the property from such peril, constitutes a case of salvage; and where the compensation is not fixed by such a contract as a court of admiralty will enforce, it is to be adjusted according to those liberal rules which form a part of the maritime law. In order to bar a claim for salvage, there must be a distinct agreement proved between the parties for a given sum. It is quite Immaterial whether the salvors accidentally fall in with the wreck and volunteer their services, or are called upon by the owners or persons interested to aid in saving it. It is the place where the property is situated, and the circumstances of exposure and peril, which determine the question whether or not the case is one of salvage; and it has been determined that, to bar a claim of this description, it is necessary to allege and prove that a binding contract was made to pay for the service at all events, whether the property be lost or not. The Versailles, [Case No. 16,924;] The William Lushington, 7 Notes of Cas. 361; The Centurion, [Case No. 2,554;] The H. B. Foster, [Id. 6,299;] The Independence, [Id. 7,014.] Another objection to the right of the steamer R. B. Forbes to recover salvage compensation arises from the pleadings. It is insisted that the libellant does not make any such claim in the libel. That view of the libel is derived chiefly from the fact that it is alleged to be in a cause of contract civil and maritime, and of extra servicés rendered to the bark" }, { "docid": "8867731", "title": "", "text": "Butler affirmed the report of Henry P. Morton, author of the excellent work on Admiralty Jurisprudence and Practice, who, as commissioner, reported upon the claim of a watchman and ship keeper for services rendered in the home port of the vessel. The commissioner held that the services of watchman and ship keeper rendered in that case were not maritime. The views of the commissioner are not referred to, nor are the circumstances of the services stated, and the court does not enter into a discussion of the reasons for not recognizing the services as maritime. The latest reported decision which holds that for services rendered to a vessel in her home port as watchman or ship keeper there is no maritime lien is The America, 56 Fed. 1021. In that case Judge Green said: “This claim is a meritorious one, and should be paid. The services for which wages are claimed by the libelant were faithfully performed, and should be compensated for. But, unfortunately for the libelant, he has mistaken his remedy for the wrong done him. The libelant was employed simply as a ship keeper or watchman of the dredge America, a domestic vessel, while she was lying in port. Such employment, and the consequent services rendered, are not maritime, and cannot be the basis of a maritime lien. The E. A. Barnard, 2 Fed. 712; The Island City, 1 Low. 375, Fed. Cas. No. 7,109. The libel must therefore be dismissed.” Of the cases cited by counsel for libelant in support of his position that the service rendered by Williams was maritime, not one of them holds, under facts at all analogous to those in the case at har, that the service is of a maritime character. In every one of them the court places its decision, not upon the fact that the libelant rendered services as a mere watchman or ship keeper, but because, in the discharge of his duties as such, he rendered a distinctive and substantial maritime'service, or, to put it in a more general way, his services were connected with the navigation of the" }, { "docid": "11571766", "title": "", "text": "per month; a mate, the son of the captain, whose wages were $30 per month; one deck hand, whose wages were $20 per month; one fireman, whose wages were $30 per month; and one cook, whose wages were $25 j)er month, making an aggregate monthly pay roll of $310. The owner of the vessel who had received the entire proceeds of the cargo refused to make any greater payment to the libelant than the sum of $100, or one month’s extra pay. The answer of the defendant pleads, by way of defense in bar, that the libelant, as engineer of the tug Cecilia, had made an agreement that in all cases of salvage, he was to receive, as one of the crew of the tug, an amount equal to one month’s wage, that this amount was $100, which had been duly tendered to him, and that he had refused to accept it, and that under his contract he was barred from any right to recover more. It further sets up, as matter of defense, that the libelant’s services had not been as continuous as claimed by libelant in the libel. The amount received by the tugs Cecilia and Waban for their salvage of the Colorado was, as before stated, $47,500, which presumably was divided equally between them, giving to each tug and its crew $23,750. The answer of the defendant admits receiving as salvage $18,939.30. The difference between that and the amount actually paid of $23,750 is not explained. Possibly it was swallowed up in lawyers’ fees and other expenses; and, in the absence of explanation in the testimony, the amount of salvage actually received, net, by the respondent will be placed, as stated, at the sum of $18,939.30. Upon the plea in bar, interposed, of the existence of an agreement to receive one month’s extra pay in full for all compensation in all salvage cases, the two questions arise whether or not there ever was such an agreement, and, next, if there were such an agreement, is it binding in a case of salvage? The evidence as to the" }, { "docid": "23033134", "title": "", "text": "service as salvage, and received in behalf of all interested. In Roff v. Wass, 2 Sawy. 538, the bill rendered and paid was, “The Astoria and owners, Dr., to salvage services, $5,000.” Judge Sawyer, in affirming the decision below, says: “I am satisfied this claim covered the entire salvage services. * * * Nothing indicates any intention to limit the claim to that part of the compensation due to the owners of the vessel as separate claimants.” In Studley v. Baker, 2 Low. 205, it “appeared plainly” that $1,540 of the bill paid to the owners was for salvage services; and, on payment, the owners gave a receipt for the “owners, masters, and crew.” Judge Lowell says: “The compensation was such as to indicate beyond mistake that it was understood to be for salvage service, and perfectly plain that it was the interest of both parties to adjust the compensation for the whole salvage service.” And in The Centurion, Ware, 477, the same substantial facts appeared. In the present case it is equally plain that the opposite was intended by the award, and by the settlement and payment made in pursuance of it. Had the award been made in this case as the entire compensation for a salvage service, the libellants, upon the cases cited, would have been entitled to contribution. So, also, if a price had been originally fixed for the service, whatever its character might be, and the question submitted to the arbitrator had been merely whether it were a towage or a salvage service, and he had held it a towage service merely, upon which the whole sum stipulated had been paid to Kerr, I should have had no hesitation in adjudging contribution in such an action as this; for, in that case, the arbitrator’s erroneous decision as to the legal character of the service rendered could not have had any influence in fixing the amount to be paid for the service. The owner, by his receipt of the whole stipulated price, would in that case have become possessed of the fund appropriated to its entire payment," }, { "docid": "8867711", "title": "", "text": "rusted and “pitted,” to claimant’s damage in the sum of $176.25, an amount equal to (hat claimed by libelant as his balance of wages. The testimony of the deck watchman and of other witnesses would seem to indicate that the libelant was delinquent in his attention to the duties of his employment, and that through his carelessness and negligence the engine and boilers became rusted and “pitted.” It was testified that the damage done would amount fully to $200. On the whole, the testimony against the libelant on this matter is of such a character that, if the case were to be disposed of on the merits, 1 should feel inclined to allow the claim for damages as an offset to the balance of wages claimed by libelant. But, the question of jurisdiction having been raised, that feature of the case must be considered and determined. The claimant contends that the service which libelant rendered, whether it be called that of a watchman or ship keeper, was not of a maritime nature, and that, therefore, this court, as a court of admiralty, has no jurisdiction over the cause of action for balance of wages arising from such employment. The libelant, on his part, claims that he rendered a maritime service, for which he claims to he entitled to a lien by virtue of the state statute. ¡Section 81o of the Code of Civil Procedure provides that “all steamers, vessels, and boats are liable: (1) For services rendered on board at the request of, or on contract with, their respective owners, masters, agents, or consignees.” The question, therefore, to be considered is, was the service which libelant rendered a maritime service? We begin with the elementary proposition that the test of admiralty jurisdiction over causes of action arising from contracts is not the locality of the performance of the contract but its subject-matter. It is a cardinal principle of admiralty jurisprudence that, to give a court of admiralty jurisdiction over contracts, the subject-matter thereof must be maritime. It is not enough that the service which sprang from the contractual relation be" }, { "docid": "15049759", "title": "", "text": "like liabilities, nor are his rights so peculiarly protected by statute. His. services are not connected with the navigation of the ship. They are incidental to the execution of the maritime contract of carriage and delivery. He is not, strictly speaking, a material-man, but he stands on the same footing when he has rendered service necessary to the business of the ship. The George T. Kemp, 2 Low. 483. It is established law that material-men furnishing repairs and supplies to a ship in her home port do not acquire any lien by the .general maritime law as received in the United States, notwithstanding the maritime nature of the contract. The Belfast, 7 Wall. 645; The Lottawanna, 21 Wall. 559; Norton v. Switzer, 93 U. S. 366. This proceeds upon the ground that the origin of the maritime lien for supplies and services is based upon the necessities of trading vessels visiting distant localities, where neither the master nor the owners have, credit. Hen. Adm. § 43; The St. Jago de Cuba, 9 Wheat. 409; The Lottawanna, supra, 579. At the home port they are presumed to have been furnished upon the credit of the owner. In the cases cited to sustain the maritime nature of the services performed by stevedores, all, with the possible exception of The Senator, were for services rendered at a port to which the vessel was foreign. In that case the report does not disclose the fact, and no reference is made thereto. In The E. A. Barnard the lien was denied mainly because the services were rendered at the home-port. The George T. Kemp expressly rules that the service, though-maritime, gives no lien to a domestic vessel, unless by the state law. The twelfth rule in admiralty, adopted in 1859, limited proceed iiigs in, rem to a foreign ship or a ship in a foreign port. As changed in 1872, it provided that “in all suits by material-men for supplies or repairs or other necessaries, the libelant may proceed against the ship in rem, or against the owner or master in personam.'''1 The notion prevailed" }, { "docid": "8867726", "title": "", "text": "character and privileges which the law denies to it. The place and subject-matter of a contract decide its maritime character, and not the will of the parties. Ts there an instance in Avhieh a contract made on land, for a service to be rendered on land, lurring no connection with any voyage performed or to be performed, has been deemed, by the general admiralty law, a case of admiralty jurisdiction, giving a lien on the ship? The meritorious service of the petitioner, if such it was, and the hardships of the case, have been strongly pressed in his behalf, but they must not be permitted to unsettle established principles, or to remove the landmarks of judicial jurisdiction.” The claim of the libelant was dismissed. The case of The Champion, Fed. Cas. No. 2,584, is also in point, and is a later decision (1877). The facts of that case are: That a seaman shipped on the vessel in the spring, served as such during the season of navigation, and then remained on board during the winter, taking care of the ship. Ho new contract for this service was entered into, nor was there any change of wages. The services were continuous, and small sums were paid from time to time. The contract of hiring as seaman was made in Canada, and the vessel plied between Canadian ports, touching occasionally at 'American ports. The libelant intervened while the vessel was in the custody of the marshal for the Eastern district of Michigan. He was an American citizen, and the court determined that, as it had the proceeds of sale in its possession, it had jurisdiction to entertain the claim, notwithstanding the contract of hiring was made in Canada, and the services as keeper rendered there. Judge Brown, in alluding to the conflict of authority on this question, said: “Notwithstanding some conflict of authority, I think the better rule is that a ship keeper, particularly of a domestic vessel, has no lien upon her for wages by the general maritime law. It was so decided by Judge Lowell in the case of The" }, { "docid": "22078251", "title": "", "text": "the undertaking was attended with greater difficulty and danger than the parties supposed at the time the agreement was made, the court held that the libellants were entitled to recover a certain sum beyond that tendered under the agreement. So where salvage compensation was claimed by the master, owners, and crews of six luggers, a cutter, and a lifeboat, the court sustained the libel and awarded a sum equal to one-third of the salved property, including the ship as well as the cargo. Proceedings in salvage were instituted in the case of The Canova, by the owners and crew of a steamtug, lor services rendered in towing the vessel from a place of danger to her dock in her port of destination, but it appearing that there was an agreement to do the loork for an agreed price, the court declined to allow any salvage compensation. Modern text-writers, without an exception, uphold the right of the owners of ships and vessels, whether propelled by steam or otherwise, to claim salvage compensation when , such services are rendered by their vessels, whether they are present or absent at the time the service is performed; and the author of the latest work published upon the subject states that one-tenth of all the salvage awards collated in the Digest of the Decisions in Admiralty by flic English courts are to owners and vessels, boats, tugs, and steamers. Assuming his estimate to bo correct, it appears that thirty-five cases collated in that work recognize owners as salvors, and twenty-five the vessels themselves as entitled to such compensation. Owners of the salving vessel, says MacLachlan, arc entitled to remuneration, in the nature of salvage, in addition to expenses, when they show actual loss suffered, or risk in respect to their property encountered in the service, but charterers are not in the same position unless there is a stipulation giving them the control and benefit of the salvage, or unless the vessel is chartered and sailed on their responsibility. Under ordinary circumstances the owners of the ship which rendered the service are allowed one-tliird of the" }, { "docid": "15556394", "title": "", "text": "those raised in Kimes v. United States, 207 F. 2d 60 (2d Cir. 1953). The court there found the crew of the salving vessel entitled to a salvage award even though the crew had already received a base wage, overtime, supplementary overtime, a 166%% war bonus and an area bonus of $5 per day. Because the crew was exposed to greater risks than were part of their normal duties the court allowed a salvage award. The court held that libelants undertook the work voluntarily in that they were under no legal duty to do so. In the case at bar the court finds no legal duty on the part of any libelants to render aid to the SANTA MARIA and that the voluntariness of libelants’ services is not negated by their expectation of wages regardless of the success of the salvage operation. As to respondents’ defense that libelants entered into a contract for the salvage services which they rendered, the law imposes a heavier burden of proof upon respondents than would apply in a non-salvage ease. See Norris, Salvage § 160, wherein it is stated, “The salvage contract need not be in writing but the terms must be clear, definite and explicit as to the amount and that there is a mutual understanding that the services involved are in the nature of salvage.” See also the discussion of this issue in Kimes, supra, and in Lago Oil & Transport Co. Ltd. v. United States, 218 F.2d 631 (2d Cir. 1955). Both courts placed considerable reliance on The Camanche, 75 U.S. 448, 477 (8 Wall.), 19 L. Ed. 397, 405 (1869), wherein the rule was set forth that “nothing short of a contract to pay a given sum for the services to be rendered, or a binding engagement to pay at all events, whether successful or unsuccessful in the enterprise, will operate to bar a meritorious claim for salvage.” The alleged oral contract in this case is evidenced by the unsigned memorandum, Exhibit A133. Applying the above cited principles to the terms of the contract the court finds that respondents have" }, { "docid": "8867727", "title": "", "text": "taking care of the ship. Ho new contract for this service was entered into, nor was there any change of wages. The services were continuous, and small sums were paid from time to time. The contract of hiring as seaman was made in Canada, and the vessel plied between Canadian ports, touching occasionally at 'American ports. The libelant intervened while the vessel was in the custody of the marshal for the Eastern district of Michigan. He was an American citizen, and the court determined that, as it had the proceeds of sale in its possession, it had jurisdiction to entertain the claim, notwithstanding the contract of hiring was made in Canada, and the services as keeper rendered there. Judge Brown, in alluding to the conflict of authority on this question, said: “Notwithstanding some conflict of authority, I think the better rule is that a ship keeper, particularly of a domestic vessel, has no lien upon her for wages by the general maritime law. It was so decided by Judge Lowell in the case of The Island City, following in this respect Phillips v. The Thomas Scattergood (Gilpin, J.); Weaver v. The S. G. Owens, Fed. Cas. No. 17,310. See, also, The John T. Moore, Fed. Cas. No. 7,430. In the case of The Trimountain, Fed. Cas. No. 14,175, the court allowed a watchman for his fees before she was taken into custody by the marshal, giving as a reason that that constituted one of the privileged demands of the maritime law, as administered under the ordinance of Louis XVI. [XIV.], and was so ranked in the Code de Commerce. In the case of The Dolphin, Fed. Cas. No. 3,973, I held that the underwriter had a claim on that vessel for his premiums, following in this respect French law. But the supreme court had already determined the contract of insurance to be a maritime contract, and it seemed to me the lien followed naturally upon this decision, and, inasmuch as the civil law conferred the lien, I considered myself at liberty to adopt it. I did not intend, however, to" }, { "docid": "8867722", "title": "", "text": "but to mark the description of services connected with his employment, and to ascertain whether they have the characteristics of maritime. Evidently these duties are in no respect nautical. They can be fully as well performed by shore laborers as by seamen; and the libelant in this instance, it axxpears, was a common stevedore. The services are distinct from the navigation of the vessel, ceasing when that commences, and have the same character and importance on board a hulk under keeping to be broken up or destroyed as upon a vessel xn-eparing or intending for sea. Sweeping and scrubbing the decks, throwing out and securing- lines for her fastening, or keeping watch on the wharf against robbery, fire, and other injuries that might reach a vessel from the shore, aro services rendered towards her preservation of like nature with those of ordinary keepers. No principle ever yet announced seems, however, to range services of that description under admiralty jurisdiction.” And in conclusion he says: “In my view of this claim, it is for mere labor, not for the reparation or fitment of the vessel, and in no respect maritime, as being nautical in its cbaracter, or distinguishable from ordinary services rendered in going to and from the vessel, or incidental to her probable employment at sea. I shall therefore disallow the claim entirely in this action.” But he allowed the libelant a small sum for performing a mail-, time service while keeper, which consisted in moving the vessel; from her anchorage further out into the bay by the direction of a health officer. To do this the libelant was compelled to get., under way and navigate her to the designated place. This, the judge held, “was comparatively a small service, but it was in Us nature maritime, and the libelant had a right to resort to this court to receive a proper compensation for it.” In the case at bar there was nothing to show that the Sirius was even once moved from her anchorage. In The Island City, 1 Low. 375, Fed. Cas. No. 7,109, Judge Lowell held, in" }, { "docid": "6399838", "title": "", "text": "the bark was still in peril, and needed assistance. He performed that service at the request of the master of the bark, and the result was that her owners immediately telegraphed to Frovincetown, where the steamer was then lying, requesting her master to go to the relief of the bark, and in pursuance of that request he went, and found her where she had been left by the schooner. No contract of any kind was made between the parties, except what may be implied from that request, which created no more obligation upon those on board the steamer to undertake the service than a signal of distress from the bark would have created, if it had been seen from the shore. They were at perfect liberty to go or to decline to go, as they saw fit, and if they had refused, either from interest or choice, the owners of the bark would have no right of action on account of the refusal. Such a service is entitled to be rewarded under the conditions and according to the measure of the maritime law; as the claim stands upon the request of the master of the steamer to go to the assistance of the bark, a compliance with that request, and the performance of a service which is salvage in its incidents and nature. All the cases show that the relief of property from an impending peril of the sea, by the voluntary exertions of those who are under no legal obligations to render assistance, and the consequent ultimate safety of the property from such peril, constitutes a case of salvage; and where the compensation is not fixed by such a contract as a court of admiralty will enforce, it is to be adjusted according to those liberal rules which form a part of the maritime law. In order to bar a claim for salvage, there must be a distinct agreement proved between the parties for a given sum. It is quite Immaterial whether the salvors accidentally fall in with the wreck and volunteer their services, or are called upon by" }, { "docid": "15556393", "title": "", "text": "issues are presented. The first relates to respondents’ contention that libelants were not volunteers and the second to the defense that libelants’ action is barred by contract. Respondents contend that libel-ants are not entitled to the legal status of volunteers because Pacific Coast Transport paid libelants’ room and board and other incidental expenses during the period in question and furthermore agreed to pay wages to libelants whether or not salvage operations aboard the SANTA MARIA were successful. While the court finds no evidence of an agreement to pay wages in all events, the court does find that libelants considered themselves employees of the company in that they believed they would be paid wages in an unspecified amount irrespective of success. The court, however, does not agree with respondents that this bars a salvage award. The law is clear that an employee who receives wages for work of a salvage nature may nevertheless be a volunteer who is entitled to a salvage award in addition thereto. The issues of this case are much the same as those raised in Kimes v. United States, 207 F. 2d 60 (2d Cir. 1953). The court there found the crew of the salving vessel entitled to a salvage award even though the crew had already received a base wage, overtime, supplementary overtime, a 166%% war bonus and an area bonus of $5 per day. Because the crew was exposed to greater risks than were part of their normal duties the court allowed a salvage award. The court held that libelants undertook the work voluntarily in that they were under no legal duty to do so. In the case at bar the court finds no legal duty on the part of any libelants to render aid to the SANTA MARIA and that the voluntariness of libelants’ services is not negated by their expectation of wages regardless of the success of the salvage operation. As to respondents’ defense that libelants entered into a contract for the salvage services which they rendered, the law imposes a heavier burden of proof upon respondents than would apply in a non-salvage" }, { "docid": "6694868", "title": "", "text": "for their services under that contract. A. Whether a contract is one for tow-age or for salvage has several consequences. If the fee is not agreed to, salvage service commands a larger award. 1 Martin J. Norris, The Law of Seamen § 9:45 (4th ed. 1985) (Norris). Under a salvage contract, not only is the vessel liable for payment, but the cargo is as well. 3A Martin J. Norris, Benedict on Admiralty § 186 (7th ed. 1993) (Benedict). A salvage contract also creates a “preferred” maritime lien, which has a higher priority than the maritime lien created by a towage contract. Compare 46 U.S.C. § 31301(5) with § 31342(a). Finally, the crew of the salving vessel has additional rights under a salvage contract. Norris at § 9:45. The character of the service rendered determines whether a contract is one for salvage. The Camanche, 75 U.S. (8 Wall.) 448, 477, 19 L.Ed. 397 (1869) (Camanche ). There is a marked and clear distinction between a towage and a salvage service. When a tug is called or taken by a sound vessel as a mere means of saving time, or from considerations of convenience, the service is classed as towage; but if the vessel is disabled, and in need of assistance, it is a salvage service. The Flottbek, 118 F. 954, 960 (9th Cir.1902). The existence of a marine peril distinguishes a salvage contract from one for towage. Id.; see also Benedict at § 188. Such a peril exists “when a vessel is exposed to any actual or apprehended danger which might result in her destruction.” Faneuil Advisors, Inc. v. O/S Sea Hawk, 50 F.3d 88, 92 (1st Cir.1995). Whether a marine peril exists is a question of fact reviewed for clear error. Clifford v. M/V Islander, 751 F.2d 1, 5 (1st Cir.1984). Defendants’ attack on the trial court’s finding of a marine peril is twofold. First, they argue that the evidence does not support the finding of marine peril prior to the plaintiffs’ efforts. Second, defendants assert that the trial court improperly considered evidence of insurance and a risk of pollution" }, { "docid": "15179778", "title": "", "text": "deal with certain matters that had always been recognized as cognizable.” In The J. Doherty (D. C.) 207 Fed. 997, Judge Veeder held that the statute in question was not intended to apply to towage. The learned judge concluded that the act was intended to raise the pre sumption of a lien only where there was no lien given by the maritime layv. A lien for towage, even on the owner’s order, being presumed by the maritime law where the services were performed in an exigency or under circumstances of necessity, he said the act had no application. The court also applied the rule of ejusdem generis, and held that “other necessaries,” when used in connection with “repairs” and “supplies,” must be construed to mean necessaries of like nature, and not whatever was necessary to facilitate the use of the ship. ■If the stevedores in this case had themselves contracted with the managing owner, treating their services as analogous to those of seamen, by the general maritime law they would have a lien on the vessel. “Ttiere are maritime services which are usually rendered under circumstances which make them so essential to the movement of a vessel, and to the performance of her primary function as an instrument of commerce, that the admiralty law presumes they are rendered on the credit of the vessel, in the absence of proof to the contrary, and creates a maritime lien in their favor, independently of the question whether it be a domestic vessel, or not. Notable examples are the lien for pilotage services, the lien for seamen’s wages, for towage services, and for salvage services.” The Alligator, 161 Fed. 37, 88 C. C. A. 201. But where the contract is made with the owner by one who furnishes stevedores, as in this case, he cannot claim wages, for he has rendered no personal service, and he cannot claim to be subrogated to the liens of the stevedores, for they have agreed to look to him and not to the vessel for pay. He therefore is in the same position as one who furnishes" }, { "docid": "15179779", "title": "", "text": "vessel. “Ttiere are maritime services which are usually rendered under circumstances which make them so essential to the movement of a vessel, and to the performance of her primary function as an instrument of commerce, that the admiralty law presumes they are rendered on the credit of the vessel, in the absence of proof to the contrary, and creates a maritime lien in their favor, independently of the question whether it be a domestic vessel, or not. Notable examples are the lien for pilotage services, the lien for seamen’s wages, for towage services, and for salvage services.” The Alligator, 161 Fed. 37, 88 C. C. A. 201. But where the contract is made with the owner by one who furnishes stevedores, as in this case, he cannot claim wages, for he has rendered no personal service, and he cannot claim to be subrogated to the liens of the stevedores, for they have agreed to look to him and not to the vessel for pay. He therefore is in the same position as one who furnishes supplies or repairs. Speaking of such contractors, Judge Brown, in The Seguranca (D. C.) 58 Fed. 908, 910, says: “They simply supplied the labor of other persons, whom they employed .and paid. This differs in no degree, so far as I can perceive, from a contractor’s supply of workmen to do repairs; ancl thus the present case falls strictly within the analogy of repairs and supplies in the home port.” It is evident, therefore, if we construe the statute as intending to raise the presumption of a lien only where the maritime law does not create one, that the act does apply to the furnishing of stevedores by a contractor in the home port or on the order of the owner, for- by the general maritime law no> lien arises from such a contract. Still further, if we apply the rule of ejusdem generis, the furnishing of stevedores under such a contract is similar to that of a contractor’s furnishing of workmen to do repairs, so that it would come strictly within the phrase “other" } ]

[ { "docid": "16495803", "title": "", "text": "than 300 days after the July 1996 transfer. Rosario argues that her Title VII claim based on this transfer is nonetheless timely under the “continuing violation doctrine,” which would allow her to recover for the July 1996 transfer notwithstanding the limitations period if the transfer is sufficiently related to acts alleged in a timely charge. The “continuing violation doctrine” does not preserve Rosario’s claim. The Supreme Court has recently elaborated on the meaning of the term “continuing violation,” holding that a discrete discriminatory act transpires only at the time it takes place, even if it was related to acts that were timely filed. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 2073, 153 L.Ed.2d 106 (2002). “Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred.” Morgan, 122 S.Ct. at 2072. The Court made plain that “[discrete acts such as termination, failure to promote, denial of transfer or refusal to hire ... constitute[ ] a separate actionable unlawful employment practice.” Id. at 2073 (emphasis added). The July 1996 transfer is therefore a time-barred discrete act. See id.; see also Miller v. N.H. Dep’t of Corr., 296 F.3d 18, 22 (1st Cir.2002). The March 1998 transfer is also a discrete act constituting “a separate and ac tionable unlawful employment practice.” Morgan, 122 S.Ct. at 2073. Yet Morgan does not address whether a previously filed EEOC complaint must be amended to encompass subsequent discrete acts in order to render such acts susceptible to judicial review. We have held that a judicial complaint can encompass discrete acts of retaliation “reasonably related and growfing] out of the discrimination complained of to the agency ...” Clockedile v. N.H. Dep’t of Corr., 245 F.3d 1, 6 (1st Cir.2001). But in Clockedile we declined to decide whether a judicial complaint also may encompass non-retaliatory but related discrete acts which took' place after the discrimination described in the charge if the plaintiff failed to amend her charge or to file a" } ]

[ { "docid": "9810324", "title": "", "text": "536 U.S. at 110-116, 122 S.Ct. 2061. “[H]ostile work environment claims do not turn on single acts but on an aggregation of hostile acts extending over a period of time.” Marrero v. Goya of P.R., Inc., 304 F.3d 7, 18 (1st Cir.2002). Consequently, the statute of limitations “will not exclude acts that are part of the same unlawful employment practice if at least one act falls within the time period.” Dressler v. Daniel, 315 F.3d 75, 79 (1st Cir.2003). In contrast, acts such as those alleged by Ruiz—failure to renew his contract and failure to hire him for a new position—constitute discrete acts, for which claims must be filed within the time period. Rivera v. P.R. Aqueduct and Sewers Auth., 331 F.3d 183, 189, 2003 U.S.App. LEXIS 11459, *11 (1st Cir.2003). The non-renewal of Ruiz’s teaching contract in May, 1997 constituted a discrete incident of alleged discrimination, and Ruiz had an obligation to file within the appropriate time period. While in an appropriate case we have the ability to toll the time period by applying an equitable doctrine, Morgan, 536 U.S. at 122, 122 S.Ct. 2061, we decline to do so because applying the statute of limitations creates no injustice to Ruiz. Ruiz claims that he knew all along that he was being discriminated against for his political beliefs. When he realized that his temporary contract would not be renewed, he had an obligation to file his claim. For us to decide otherwise would allow a plaintiff to extend the statute of limitations merely by applying for additional positions, even though the employer has clearly terminated his employment. The University’s refusal to hire Ruiz for a new position that Ruiz applied for in June, 1997 would qualify as a discrete act of alleged discrimination falling inside the filing period. However, Ruiz has not brought a claim for denial of a new position. Ruiz’s complaint focuses on how Defendants’ actions resulted in the non-renewal of his work contract. The first mention of his May and June, 1997 applications for new positions is found in Plaintiffs Motion in Opposition to Summary Judgment." }, { "docid": "20524794", "title": "", "text": "on these events to anchor a time-barred discriminatory or retaliatory acts to such timely acts as a continuing violation, where those time-barred acts, namely Dr. Herndon’s February 2007 initial imposition of probation, the subsequent ratification of same by the Executive Committee the extension of that probation, were discrete acts. As previously noted, the Morgan court held: Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable “unlawful employment practice.” Id. at 114, 122 S.Ct. 2061. The First Circuit has since applied Morgan in a number of cases, focusing on whether the alleged discrimination or retaliation requires “repeated conduct to establish an actionable claim.” Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130-31 (1st Cir.2009). Here, the Court finds instructive the First Circuit’s analysis in Miller v. New Hampshire Dep’t of Corr., 296 F.3d 18, 22 (1st Cir.2002), a case decided after Morgan. There, the court rejected the plaintiffs argument that although he received a letter of warning and performance evaluation from his employer, he did not understand the “tangible effects” of the letter until three years later, when he was denied a promotion. Id. The court found that the continuing violation doctrine did not apply because the plaintiff understood the warning letter and evaluation—a discrete act — to be formal discipline, appealing such discipline through the internal review procedures. Id. In his appeal, the plaintiff stated that he felt “abused and retaliated against,” demanding that the letter be removed from his file. Id. The court found that the plaintiffs “recognition [of the discriminatory and retaliatory nature of the disciplinary action taken against him] eliminate[d] any argument that the warning and evaluation did not have any crystallized implications or ap parent tangible effects at the time they were issued.” Id. (quotations omitted). Dr. Shervin denounced the untimely discrete acts of discrimination and retaliation as such almost as soon as they occurred. In fact, the record in this regard is largely undisputed. Dr. Shervin, shortly after the February" }, { "docid": "4423492", "title": "", "text": "period accruing from the denial of prospective employment and termination from employment); Miller v. New Hampshire Dept. of Corrections, 296 F.3d 18, 22 (1st Cir.2002) (distinguishing “a discrete act of discrimination' — -as opposed to a pattern of harassing conduct that, taken as a whole, constitutes a hostile work environment [and falls within the continuing violations exception to the limitations period].”) Accord, Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7 (1st Cir.2002) finding hostile work environment claims timely under the Morgan premise. Plaintiff has not contested his failure to bring any of the 1 through 6 events listed above to the attention of an EEO counselor claiming race/national origin discrimination within the regulatory period. Rather, he merely alleges these were: (1) covered by the 1995 charge and/or (2) the period was tolled under the continuing violations theory. We find unconvincing plaintiffs argument that in 1995, six years earlier, he had complained of discrimination based on a myriad of discriminatory conditions including race/national origin, handicap and age somehow put defendant on notice of these same underlying discriminatory grounds for purposes of the exhaustion of administrative remedies requirement. As clearly established in Morgan, discrete acts of discriminatory conduct constitute independent claims subject to individual limitations periods and may not be used as grounds for extensions based on the continuing violations doctrine. The first three events at issue, i.e., failure to select plaintiff for announced positions on three separate dates, are akin to a failure to promote or hire and are thus, unequivocally separate distinct events each of which carry its own independent limitations period under the Morgan postulate. So too are the written counseling, proposed admonishment and reprimand identified as events 4 through 6 in the administrative proceedings which were also dismissed as untimely. These events constitute specific employment occurrences with the potential for concrete adverse consequences on plaintiffs employment status. Hence, these three additional events do not meet the underlying criteria necessary to apply the continuing violations tolling mechanism under Morgan. According to the record before us it is undisputed that plaintiff brought these six matters — which range" }, { "docid": "4423490", "title": "", "text": "the term for the limitations period to run. Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable “unlawful employment practice.” Morgan, 536 U.S. at 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (emphasis ours). On the other hand, “[hjostile environmental claims are different in kind from discrete acts. Their very nature in volves repeated conduct... The ‘unlawful employment practice’ therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” Morgan, 536 U.S. at 115, 122 S.Ct. 2061, 153 L.Ed.2d 106. “As long as the employer has engaged in enough activity to make out an actionable hostile environment claim, an unlawful employment practice has ‘occurred,’ even if it is still occurring. Subsequent events, however, may still be part of the one hostile work environment claim and a charge may be filed at a later date and still encompass the whole.” Morgan, 536 U.S. at 117, 122 S.Ct. 2061, 153 L.Ed.2d 106. Illustrating the underlying difference between hostile work environment claims and other discrimination claims the Court of Appeals in Campbell v. BankBoston, N.A., 327 F.3d 1, 11 (1st Cir.2003) stated that the limitations period for an alleged discriminatory change in retirement benefits plan began to run upon plaintiff being advised of the decision. Likewise, following the Morgan precedent in Rosario Rivera v. P.R. Aqueduct And Sewers Auth., 331 F.3d 183, (1st Cir.2003) the court rejected plaintiffs notion that two employment transfers were part of a continuing violation for purposes of the [Title VII] limitations period under a hostile work environment scheme. Rather, the court specifically determined that each such transfer constituted “ ‘a separate and actionable unlawful employment practice.’ ” Id. at 188-89 (citing Morgan, 536 U.S. at 114, 122 S.Ct. at 2073). See also, Dressler v. Daniel, 315 F.3d 75 (1st Cir.2003) (two separate claims with individual limitations" }, { "docid": "1900280", "title": "", "text": "Morgan’s holding that “a discrete discriminatory act transpires only at the time it takes place, even if it was related to acts that were timely filed”); Cherosky v. Henderson, 330 F.3d 1243, 1246 (9th Cir. 2003) (‘Morgan makes clear that claims based on discrete acts are only timely where such acts occurred within the limitations period.... ”). The classic example of a continuing violation is a hostile work environment, which “is composed of a series of separate acts that collectively constitute one ‘unlawful employment practice.’ ” Morgan, 536 U.S. at 117, 122 S.Ct. 2061 (quoting 42 U.S.C. § 2000e-5(e)(1)). The continuing violation doctrine applies in that setting because hostile work environment claims by “[t]heir very nature involved repeated conduct,” and “a single act of harassment may not be actionable on its own.” Id. at 115, 122 S.Ct. 2061; see also Ledbetter v. The Goodyear Tire & Rubber Co., 550 U.S. 618, 127 S.Ct. 2162, 2175, 167 L.Ed.2d 982 (2007) (“[A] hostile work environment claim ‘cannot be said to occur on any particular day’ ” because “the actionable wrong is the environment, not the individual acts that, taken together, create the environment.” (quoting Morgan, 536 U.S. at 115-116, 122 S.Ct. 2061)). Thus, “component acts” of a hostile work environment claim that occur outside the filing period may be considered for purposes of determining liability. Morgan, 536 U.S. at 117, 122 S.Ct. 2061. By contrast, the denial of a disabled employee’s request for accommodation starts the clock running on the day it occurs. As we have noted, such a denial is a discrete discriminatory act that, like a termination, a refusal to transfer, or a failure to promote, does not require repeated conduct to establish an actionable claim. Consequently, the continuing violation doctrine does not apply to this case, and the timeliness of Tobin’s claim turns solely on whether an actionable denial of his request for accommodations occurred during the limitations periods. 2. The Timing of Liberty Mutual’s Denial of Tobin’s Request for Reasonable Accommodation Liberty Mutual asserts that Tobin’s claim was untimely because the statutory periods began to run when the" }, { "docid": "5872467", "title": "", "text": "2014). In fixing the applicable tolling time, we must keep in mind a key distinc7 tion the Supreme Court has articulated between the tolling of (1) discrete incidents of discrimination and (2) hostile work environment claims. “Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify,” Nat’l R.R. Passenger Grp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), and, consequently, those “acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Campbell v. BankBoston, N.A., 327 F.3d 1, 11 (1st Cir. 2003) (citation omitted). Hostile work environment claims, on the other hand, generally “do not ‘turn on single acts but on an aggregation of hostile acts extending over a period of time.’ ” Marrero v. Goya of P.R., Inc., 304 F.3d 7, 18 (1st Cir. 2002) (quoting Havercombe v. Dep’t of Educ., 250 F.3d 1, 6 (1st Cir. 2001)). For this reason, an equitable exception to the 300-day filing period is recognized under Title VII for the “ongoing pattern[s] of discrimination,” that are part and parcel with hostile work environment claims. O’Rourke v. City of Providence, 235 F.3d 713, 726 (1st Cir. 2001) (citations omitted); see also Nat’l R.R. Passenger Corp., 536 U.S. at 122, 122 S.Ct. 2061. The continuing violation doctrine, in other words, allows plaintiffs to proceed on a hostile work environment claim “so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period.” Nat’l R.R. Passenger Corp., 536 U.S. at 122, 122 S.Ct. 2061 (emphasis added). Thus, in determining liability in a hostile work environment claim, all “component acts” of the claim that occurred outside of the limitations period may be considered. Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st Cir. 2009). With that legal landscape in mind, we address the City’s various arguments, rejecting each one as we go along. B. Timeliness The City’s first arrow in its effort to lampoon the district court" }, { "docid": "20524793", "title": "", "text": "Grievance Committee wrote in its Grievance Report, however, that “[n]either party responded to the Committee’s request to submit a list of additional individuals for the Committee to interview.” D. 157-48 at 8. Although Dr. Herndon cited a case involving a patient with a shoulder injury (“the shoulder case”) in support of his decision to impose probation, D. 220-1 at 57-58, Dr. Borus testified that Dr. Herndon never indicated to him that his description of events surrounding the shoulder dislocation patient in his March 7, 2007 probation letter to Dr. Shervin, was written in error. D. 220-1 at 57-58. Dr. Borus testified that at the hearing, Dr. Herndon also stated that Dr. Sher-vin “didn’t do the right thing with the shoulder.” D. 220-1 at 120. Dr. Borus testified that the Committee never spoke to Dr. Holovacs and that the Committee did not receive the letter Dr. Holovacs wrote. D. 220-1 at 121. ii. Probation was a Discrete Act Even if the above conduct is in itself actionable, however, the Court concludes that Dr. Shervin cannot rely on these events to anchor a time-barred discriminatory or retaliatory acts to such timely acts as a continuing violation, where those time-barred acts, namely Dr. Herndon’s February 2007 initial imposition of probation, the subsequent ratification of same by the Executive Committee the extension of that probation, were discrete acts. As previously noted, the Morgan court held: Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable “unlawful employment practice.” Id. at 114, 122 S.Ct. 2061. The First Circuit has since applied Morgan in a number of cases, focusing on whether the alleged discrimination or retaliation requires “repeated conduct to establish an actionable claim.” Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130-31 (1st Cir.2009). Here, the Court finds instructive the First Circuit’s analysis in Miller v. New Hampshire Dep’t of Corr., 296 F.3d 18, 22 (1st Cir.2002), a case decided after Morgan. There, the court rejected the plaintiffs argument that although" }, { "docid": "20006654", "title": "", "text": "acts alleged in timely filed charges.” Id. It further explained that a discrete discriminatory act occurs “on the day it happened,” and gave as examples termination, failure to promote, denial of transfer, and refusal to hire. Id. at 110, 114, 122 S.Ct. 2061. The Supreme Court contrasted discrete acts of discrimination with hostile work environment claims, for which the continuing violation doctrine remained available, because hostile work environment claims by “[t]heir very nature involve[] repeated conduct,” and further explained that “a single act of harassment may not be actionable on its own.” Id. at 115, 122 S.Ct. 2061. Although Morgan discussed the continuing violation doctrine in the context of Title VII, many courts have held that an alleged failure to provide a requested accommodation under the Rehabilitation Act or the ADA is also a “discrete act” under Morgan and thus cannot rest on a continuing violation theory to make it timely. See, e.g., Cherosky v. Henderson, 330 F.3d 1243, 1246-47 (9th Cir.2003) (holding that denial of employees’ request for respirators under the Rehabilitation Act was a discrete act of discrimination under Morgan); Szedlock v. Tenet, 61 Fed.Appx. 88, 93 (4th Cir.2003) (holding that denials of hearing-impaired employees’ multiple requests for accommodations under the Rehabilitation Act were each discrete acts of discrimination under Morgan); Becerra v. EarthLink, Inc., 421 F.Supp.2d 1335, 1343 (D.Kan.2006) (reasoning that, under Morgan, “rejection of an employee’s proposed accommodation is a discrete act” that begins the ADA limitations period); Lipka v. Potter, No. 03CV381A, 2006 WL 839421, at *4 (W.D.N.Y. Mar.28, 2006) (holding that claim for reasonable accommodation under the ADA was time-barred; “the continuing violation doctrine applies only to cases of alleged hostile work environment or other claims which involve a series of acts necessary to comprise the alleged discriminatory act”); see also Elmenayer v. ABF Freight Sys., 318 F.3d 130 (2d Cir.2003) (holding that denial of request for accommodation of religion is a discrete act under Morgan). In short, there is no principled basis for declining to apply Morgan to denials of requests for reasonable accommodation under the Rehabilitation Act or ADA. Plaintiff believes these" }, { "docid": "5872466", "title": "", "text": "have explained time and again that “[t]here is no mathematically precise test that we employ to answer this question.” Gerald v. Univ. of P.R., 707 F.3d 7, 18 (1st Cir. 2013). We look, instead, to numerous factors (to which we assign no particular determinative weight) in order to guide us in our resolution of these difficult situations: severity of the discriminatory conduct, its frequency, the extent to which the behavior is physically threatening or humiliating as opposed to a mere offensive utterance, and the extent to which it unreasonably interferes with an employee’s work performance. Id. Each hostile work environment claim, then, is necessarily evaluated on a cas.e-by-case basis. Title VII also requires that the plaintiff file charges, of discrimination within 180 days of the alleged act. 42 U.S.C. § 2000e-5(e)(1). However, this period extends to 300 days where the plaintiff has “instituted proceedings with a State or local agency with authority to grant or seek relief from such practice.” Id.; see also Velázquez-Pérez v. Developers Diversified Realty Corp., 753 F.3d 265, 276 (1st Cir. 2014). In fixing the applicable tolling time, we must keep in mind a key distinc7 tion the Supreme Court has articulated between the tolling of (1) discrete incidents of discrimination and (2) hostile work environment claims. “Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify,” Nat’l R.R. Passenger Grp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), and, consequently, those “acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Campbell v. BankBoston, N.A., 327 F.3d 1, 11 (1st Cir. 2003) (citation omitted). Hostile work environment claims, on the other hand, generally “do not ‘turn on single acts but on an aggregation of hostile acts extending over a period of time.’ ” Marrero v. Goya of P.R., Inc., 304 F.3d 7, 18 (1st Cir. 2002) (quoting Havercombe v. Dep’t of Educ., 250 F.3d 1, 6 (1st Cir. 2001)). For this reason, an equitable exception to the 300-day filing period is recognized" }, { "docid": "19781754", "title": "", "text": "limitations period may be delayed until the last discriminatory act in furtherance of it.” Gomes v. Avco Corp., 964 F.2d 1330, 1333 (2d Cir.1992); see also Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001). In 2002, the Supreme Court limited this long-standing rule as it applies federal employment discrimination claims, holding that the continuing violation exception did not apply to discrete, time-barred incidents, even where those incidents were related to actionable ones: [A] Title VII plaintiff raising claims of discrete discriminatory or retaliatory acts must file his charge within the appropriate time period.... A charge alleging a hostile work environment claim, however, will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). It defined a “discrete act” as an action such as “termination, failure to promote, denial of transfer, or refusal to hire” that “constitutes a separate actionable ‘unlawful employment practice.’ ” Id. at 114, 122 S.Ct. 2061. The continuing violations doctrine was available in harassment claims, by contrast, because “[t]he ‘unlawful employment practice’ ... cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” Id. at 115, 122 S.Ct. 2061. 1. NYSHRL Discrimination Claims Against DOE Time Barred The narrower definition of the continuing violations doctrine under Morgan applies to plaintiffs discrimination claims under state law. E.g. Milani v. International Business Machines Corp., Inc., 322 F.Supp.2d 434, 452 n. 32 (S.D.N.Y.2004) (holding that Morgan applies to NYSHRL claims). Her claims pertaining to acts which occurred prior to July 26, 2009, including disciplinary letters issued to plaintiff during the 2007-2008 and 2008-2009 school years; formal and informal observations of plaintiff during the 2007-2008 and 2008-2009 school years; plaintiffs assignments for the 2008-2009 school year, and the June 18, 2009 “U” rating," }, { "docid": "9810323", "title": "", "text": "his earlier contract would not be renewed, he had a reasonable expectancy of being re-hired or of being appointed to a new position until he met with Dean Se-garra de Jaramillo in August, 1997. It was at the August, 1997 meeting that Dean Segarra de Jaramillo made it clear to Ruiz that the University would not hire him for any teaching position. We reject Ruiz’s position. As the Supreme Court explained, “[djiscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment practice.’ ” AMTRAK v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). “[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Campbell v. Bank-Boston, N.A., 327 F.3d 1, 11 (1st Cir.2003) (citation omitted). The Supreme Court has distinguished between claims involving discrete incidents of discrimination and retaliation from hostile work environment claims. Morgan, 536 U.S. at 110-116, 122 S.Ct. 2061. “[H]ostile work environment claims do not turn on single acts but on an aggregation of hostile acts extending over a period of time.” Marrero v. Goya of P.R., Inc., 304 F.3d 7, 18 (1st Cir.2002). Consequently, the statute of limitations “will not exclude acts that are part of the same unlawful employment practice if at least one act falls within the time period.” Dressler v. Daniel, 315 F.3d 75, 79 (1st Cir.2003). In contrast, acts such as those alleged by Ruiz—failure to renew his contract and failure to hire him for a new position—constitute discrete acts, for which claims must be filed within the time period. Rivera v. P.R. Aqueduct and Sewers Auth., 331 F.3d 183, 189, 2003 U.S.App. LEXIS 11459, *11 (1st Cir.2003). The non-renewal of Ruiz’s teaching contract in May, 1997 constituted a discrete incident of alleged discrimination, and Ruiz had an obligation to file within the appropriate time period. While in an appropriate case we have the ability to toll the time period by applying" }, { "docid": "20763278", "title": "", "text": "2009, including the 2001 decision not to offer her a tenure-track position, were untimely and not actionable. John son argues that the adverse employment actions constituted a continuing violation. Her argument fails. Under 42 U.S.C. § 2000e-5(e)(1), a plaintiff must file an administrative charge with the EEOC within 180 or 300 days after the “alleged unlawful employment practice occurred.” Frederique-Alexandre v. Dep’t of Natural & Envtl. Res. of P.R., 478 F.3d 433, 437 (1st Cir.2007). Puerto Rico is a “deferral” jurisdiction, so the administrative charge must be filed within 300 days of the alleged unlawful conduct. Id. The district court correctly held that the allegations involved discrete acts: failure to give Johnson a position for which she did not apply, denials of promotion to a tenure-track position, and nonrenewal of her temporary contract in 2009. These squarely fit within the Supreme Court’s explanation of what discrete acts are. In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), the Supreme Court said they are “acts such as termination, failure to promote, denial of transfer, or refusal to hire.” Id. at 114, 122 S.Ct. 2061. Such acts “are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock.” Id. at 113, 122 S.Ct. 2061; see Rivera v. P.R. Aqueduct & Sewers Auth., 331 F.3d 183, 188 (1st Cir.2003). On appeal, Johnson recharacterizes her claims as hostile work environment claims, see, e.g., Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st Cir.2009) (stating “[t]he classic example of a continuing violation is a hostile work environment”), but such revision is both too late and meritless in any event. Discrete acts and hostile work environment claims are “different in kind,” Morgan, 536 U.S. at 115, 122 S.Ct. 2061, because hostile work environment claims by their nature involve repeated conduct and a single act of harassment may not be actionable on its own, id.; see also Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 638, 127 S.Ct. 2162, 167" }, { "docid": "1900275", "title": "", "text": "have been reduced by the amount of his disability benefits. Hence the court conditioned its denial of Liberty Mutual’s request for a new trial on Tobin’s acceptance of a remit-titur in the amount of $90,000. Tobin subsequently accepted that reduction. In this appeal, Liberty Mutual raises five objections to the district court’s rulings: (1) Tobin’s claims should have been deemed time-barred because he failed to make a specific request for accommodations during the limitations period, (2) the evidence did not support the jury’s finding that assignment of an MM account was a reasonable accommodation, (3) the jury’s award of front and back pay was erroneous, (4) the district court erred in refusing to grant a remittitur of the emotional distress damages, and (5) the court erred in its calculation of prejudgment interest. In a cross-appeal, Tobin claims that the district court erred in refusing to instruct the jury on punitive damages and declining to make an award of attorney’s fees pending final resolution of the case. We address each contention in turn, beginning with the statute of limitations. II. An employer’s duty to accommodate an employee’s disability is ordinarily activated by a request from the employee, Freadman v. Metro. Prop. & Gas. Ins. Co., 484 F.3d 91, 102 (1st Cir.2007), and the request must be “sufficiently direct and specific” to give the employer notice of the needed accommodation, Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001) (citation omitted); see also Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 23 (1st Cir.2004). If the request is refused, “the refusal is a discrete discriminatory act triggering the statutory limitations period.” Ocean Spray Cranberries, Inc. v. MCAD, 441 Mass. 632, 808 N.E.2d 257, 268 (2004); see also Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (noting that “[discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire” are separate, actionable incidents of discrimination); Rivera v. P.R. Aqueduct & Sewers Auth., 331 F.3d 183, 188 (1st Cir.2003) (citing Morgan and holding that transfer was a" }, { "docid": "10654334", "title": "", "text": "at trial that he did not know whether Supancic had any influence over Higson's evaluation of his (Malone’s) work. . The district court also correctly dismissed Malone's attempt to circumvent the statute of limitations problem by alleging a \"continuing violation” claim. Malone argues that Supancic's disciplinary measures amounted to a pattern of harassment that constituted a hostile work environment and thus a continuing violation, meaning that the normal time bars would not prevent a finding of liability based on those events. See Morgan, 536 U.S. at 115-16, 122 S.Ct. 2061; Tobin v. Liberty Mutual Ins. Co., 553 F.3d 121, 130 (1st Cir. 2009); Thomas v. Eastman Kodak Co., 183 F.3d 38, 54 (1st Cir.1999). It is certainly true that under the continuing violations doctrine \"[pjrovided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered for purposes of determining liability.” Morgan, 536 U.S. at 103, 122 S.Ct. 2061. However, the plaintiff must still show that \"the employer has engaged in enough activity to make out an actionable hostile environment claim.” Id. at 117, 122 S.Ct. 2061. It is here that Malone's claim fails. The facts simply do not support his contention that Supancic’s disciplinary measures were the result of anything other than a legitimate concern with Malone’s continued absenteeism. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (defining a hostile work environment as one where \" ‘the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment' ”) (quoting Harris v. Forklift Systs., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)) (emphasis added). . This demotion constituted a reduction of his responsibilities but not of his pay or benefits. . Allegedly the government employee, who oversaw the contract that had been awarded to Lockheed, was stealing scrap materials from the Lockheed facility and providing gifts of tools to two Lockheed employees in order to" }, { "docid": "1682426", "title": "", "text": "2061. Thus, “each discrete discriminatory act starts a new clock for filing charges alleging that act.” Id. at 102, 122 S.Ct. 2061. See also Rivera v. P.R.A.S.A., 331 F.3d 183, 188-89 (1st Cir.2003); Figueroa-Garay v. Municipality of Rio Grande, 364 F.Supp.2d 117, 125 (D.P.R.2005). Therefore, “[discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Arroyo- Audifred v. Verizon Wireless, Inc., 431 F.Supp.2d 215, 219 (D.P.R.2006). Examples of “discrete acts” include: failure to renew contract, failure to hire for new position, suspensions from employment, deprivation of duties, failure to select plaintiff for unannounced employment positions, written counseling, and proposed admonishments and reprimands. See Ruiz-Sulsona v. U.P.R., 334 F.3d 157, 160 (1st Cir.2003) (holding that failure to renew a contract and failure to hire for a new position were discrete acts of discrimination pursuant to Morgan); Rivera-Torres v. Ortiz Velez, 306 F.Supp.2d 76, 84 (D.P.R.2002) (holding that a suspension from employment and deprivation of duties and equipment constitute discrete acts); Rojas v. Principi, 326 F.Supp.2d at 275 (failure to select plaintiff for unannounced employment positions, written counseling, proposed admonishments and reprimands are all considered discrete acts of discrimination). The Supreme Court’s ruling in Morgan, although discussing the continuing violation doctrine in the Title VII context, has been found to apply equally to ADA claims. See, e.g., Zankel v. Temple University, 245 Fed.Appx. 196 (3d Cir.2007); O’Connor v. City of Newark, 440 F.3d 125, 128 n. 4 (3d Cir.2006) (noting that Third Circuit Court of Appeals has applied Morgan, a Title VII case, to ADA actions in two unpublished decisions); Davidson v. America Online, Inc., 337 F.3d 1179, 1184 (10th Cir.2003) (“[T]he [Supreme] Court’s reasoning in Morgan must be applied to cases brought under the ADA.”); Esposito v. Town of North Providence, No. C A 04-302S, 2006 WL 2711736, at *7 (D.R.I. September 21, 2006) (“Morgan has also been extended to cases brought under the ADA.”); Zankel v. Temple Univ., Civil Action No. 05-2760, 2006 WL 1083600, at *5 (E.D.Pa. Apr. 24, 2006) (applying Morgan to ADA claim and stating that" }, { "docid": "5591629", "title": "", "text": "continuing violation claim, “if any act falls within the statutory time period,” the Court must “determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice.” McGullam, 609 F.3d at 76 (internal quotation marks omitted) (quoting Morgan, 536 U.S. at 120, 122 S.Ct. 2061; see also Raneri v. McCarey, 712 F.Supp.2d 271, 281 (S.D.N.Y.2010) (“To defeat the statute of limitations by applying the continuing violation theory, the evidence must show that such a hostile environment was created prior to, and continued into, the [statutory time period].”). “However, the continuing violations doctrine does not apply to discrete acts of discrimination, ‘even if they are related to acts alleged in timely filed charges.’ ” Ugactz v. United Parcel Serv., Inc., No. 10-CV-1247, 2013 WL 1232355, at *5 (E.D.N.Y. Mar. 26, 2013) (quoting Morgan, 536 U.S. at 102, 122 S.Ct. 2061). “[M]ultiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation.” Valtchev, 400 Fed.Appx. at 588-89; see also Emmons v. City Univ. of New York, 715 F.Supp.2d 394, 412 (E.D.N.Y.2010) (“The continuing violation doctrine only ‘allow[s] the inclusion of action whose discriminatory character was not apparent at the time they occurred’ and ‘is not intended to allow employees a second chance to bring stale claims once the statute of limitations has passed.’ ” (quoting Warren v. N. Shore Univ. Hosp. at Forest Hills, No. 03-CV0019, 2006 WL 2844259, at *5 (E.D.N.Y. Sept. 29, 2006), aff'd, 268 Fed. Appx. 95 (2d Cir.2008))). Actions that are “discrete” and “easy to identify,” such as “termination, failure to promote, denial of transfer, or refusal to hire ... constitute[ ] a separate actionable ‘unlawful employment practice,’ ” and cannot form the basis of a continuous and ongoing discriminatory practice that entitles a plaintiff to the continuing violation exception. See Morgan, 536 U.S. at 114, 122 S.Ct. 2061. These prior acts may, however, be considered “as background evidence in support of a timely claim.” Id. at 113, 122 S.Ct. 2061; see also Coger v. Connecticut Dep’t" }, { "docid": "1682425", "title": "", "text": "(“Title VII”) apply to disability discrimination claims under the ADA. See 42 U.S.C. § 12117(a). In Morgan, supra, the Supreme Court of the United States held that a plaintiff seeking to recover for a discrete act of discrimination, as opposed to a pattern of harassing conduct that taken as a whole constitutes a hostile work environment, must file a charge within the 180- or 300-day time period after the discrete discriminatory act occurred in accordance with 42 U.S.C. § 2000e-5(e)(l). The United States Supreme Court further held that discrete acts such as “termination, failure to promote, denial of transfer, or refusal to hire” are considered separate incidents of discrimination not part of a series of violations. Morgan, 536 U.S. at 114, 122 S.Ct. 2061. See also Rojas v. Principi, 326 F.Supp.2d 267, 275-276 (D.P.R.2004) (defining discrete act as any event “which constitutes specific employment occurrences with the potential for concrete adverse consequences on the plaintiffs employment status”). As such, said actions constitute a separate actionable “unlawful employment practice.” Morgan, 536 U.S. at 114, 122 S.Ct. 2061. Thus, “each discrete discriminatory act starts a new clock for filing charges alleging that act.” Id. at 102, 122 S.Ct. 2061. See also Rivera v. P.R.A.S.A., 331 F.3d 183, 188-89 (1st Cir.2003); Figueroa-Garay v. Municipality of Rio Grande, 364 F.Supp.2d 117, 125 (D.P.R.2005). Therefore, “[discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Arroyo- Audifred v. Verizon Wireless, Inc., 431 F.Supp.2d 215, 219 (D.P.R.2006). Examples of “discrete acts” include: failure to renew contract, failure to hire for new position, suspensions from employment, deprivation of duties, failure to select plaintiff for unannounced employment positions, written counseling, and proposed admonishments and reprimands. See Ruiz-Sulsona v. U.P.R., 334 F.3d 157, 160 (1st Cir.2003) (holding that failure to renew a contract and failure to hire for a new position were discrete acts of discrimination pursuant to Morgan); Rivera-Torres v. Ortiz Velez, 306 F.Supp.2d 76, 84 (D.P.R.2002) (holding that a suspension from employment and deprivation of duties and equipment constitute discrete acts); Rojas v. Principi, 326 F.Supp.2d" }, { "docid": "4423491", "title": "", "text": "claim and a charge may be filed at a later date and still encompass the whole.” Morgan, 536 U.S. at 117, 122 S.Ct. 2061, 153 L.Ed.2d 106. Illustrating the underlying difference between hostile work environment claims and other discrimination claims the Court of Appeals in Campbell v. BankBoston, N.A., 327 F.3d 1, 11 (1st Cir.2003) stated that the limitations period for an alleged discriminatory change in retirement benefits plan began to run upon plaintiff being advised of the decision. Likewise, following the Morgan precedent in Rosario Rivera v. P.R. Aqueduct And Sewers Auth., 331 F.3d 183, (1st Cir.2003) the court rejected plaintiffs notion that two employment transfers were part of a continuing violation for purposes of the [Title VII] limitations period under a hostile work environment scheme. Rather, the court specifically determined that each such transfer constituted “ ‘a separate and actionable unlawful employment practice.’ ” Id. at 188-89 (citing Morgan, 536 U.S. at 114, 122 S.Ct. at 2073). See also, Dressler v. Daniel, 315 F.3d 75 (1st Cir.2003) (two separate claims with individual limitations period accruing from the denial of prospective employment and termination from employment); Miller v. New Hampshire Dept. of Corrections, 296 F.3d 18, 22 (1st Cir.2002) (distinguishing “a discrete act of discrimination' — -as opposed to a pattern of harassing conduct that, taken as a whole, constitutes a hostile work environment [and falls within the continuing violations exception to the limitations period].”) Accord, Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7 (1st Cir.2002) finding hostile work environment claims timely under the Morgan premise. Plaintiff has not contested his failure to bring any of the 1 through 6 events listed above to the attention of an EEO counselor claiming race/national origin discrimination within the regulatory period. Rather, he merely alleges these were: (1) covered by the 1995 charge and/or (2) the period was tolled under the continuing violations theory. We find unconvincing plaintiffs argument that in 1995, six years earlier, he had complained of discrimination based on a myriad of discriminatory conditions including race/national origin, handicap and age somehow put defendant on notice of these" }, { "docid": "4074931", "title": "", "text": "Gutowsky v. County of Placer, 108 F.3d 256, 259-60 (9th Cir.1997). Under certain circumstances, the continuing violation doctrine permits an employee to file suit based upon events occurring outside the applicable limitations period. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (discussing the continuing violation doctrine for Title VII claims). Prior to the Supreme Court’s 2002 decision in Morgan, plaintiffs, could invoke the continuing violation doctrine by showing a series of related acts, one or more of which fell within the limitations period, or a systemic policy or practice of discrimination before and during the limitations period. See Gutowsky, 108 F.3d at 259. However, in Morgan, the Supreme Court invalidated the related acts method of showing a continuing violation under Title VII, reasoning that discrete discriminatory acts are not actionable if time-barred, even if they are related to acts alleged in timely filed charges. 536 U.S. at 113, 122 S.Ct. 2061. The Court held that “each discrete discriminatory act starts a new clock for filing charges alleging that act” so that discriminatory “termination, failure to promote, denial of transfer, or refusal to hire” are examples of actions that constitute “discrete discriminatory acts” and therefore are not subject to the continuing violation doctrine. Id. at 113-14, 122 S.Ct. 2061. In contrast, the Court found a hostile work environment would support the application of the continuing violation doctrine because such a claim “is composed of a series of separate acts that collectively constitute one unlawful employment practice.” Id. at 117, 122 S.Ct. 2061. Berglund does not point to any case in which a court has determined the continuing violation doctrine is applicable to FCA retaliation claims, nor was this court able to find any controlling authority that has addressed this issue. But see Pakter v. New York City Dep’t of Educ., No. 08-7673, 2010 WL 1141128, at *6 (S.D.N.Y. Mar. 22, 2010) (court considers whether the continuing violation doctrine spares plaintiffs otherwise time barred FCA claims, but determines it does not). Regardless, the court need not reach the issue of whether Berglund’s" }, { "docid": "20763279", "title": "", "text": "failure to promote, denial of transfer, or refusal to hire.” Id. at 114, 122 S.Ct. 2061. Such acts “are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock.” Id. at 113, 122 S.Ct. 2061; see Rivera v. P.R. Aqueduct & Sewers Auth., 331 F.3d 183, 188 (1st Cir.2003). On appeal, Johnson recharacterizes her claims as hostile work environment claims, see, e.g., Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st Cir.2009) (stating “[t]he classic example of a continuing violation is a hostile work environment”), but such revision is both too late and meritless in any event. Discrete acts and hostile work environment claims are “different in kind,” Morgan, 536 U.S. at 115, 122 S.Ct. 2061, because hostile work environment claims by their nature involve repeated conduct and a single act of harassment may not be actionable on its own, id.; see also Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 638, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007), superseded in part by statute, Lilly Ledbetter Fair Pay Act of 2009, Pub.L. No. 111-2, 123 Stat. 5, as recognized in Galera, 612 F.3d at 12 n. 8. Only those acts that occurred within the 300 days before June 4, 2009, are actionable (i. e., from August 8, 2008). C. Plaintiff’s Remaining Title VII Claims Fail on the Merits Where, as here, there is no direct evidence of discrimination in violation of Title VII, a plaintiffs claim is governed by the burden-shifting scheme set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 470 (1st Cir.2010). Under that scheme, the plaintiff must establish a prima facie case of discrimination, which creates an inference of discrimination. Id.; Kosereis v. Rhode Island, 331 F.3d 207, 212 (1st Cir.2003). If a prima facie case is established, “the burden of production—but not the burden of persuasion'—shifts to the employer, who must articulate a legitimate, non-discriminatory reason for the" } ]

[ { "docid": "22070731", "title": "", "text": "Mr. Chief Justice Warren delivered the opinion of the Court. This case presents the same issue as Sherman v. United States, ante, p. 369, decided this day: Should petitioner’s conviction be set aside on the ground that as a matter of law the defense of entrapment was established? Cf. Sorrells v. United States, 287 U. S. 435. Petitioner was convicted on three counts, two of which charged him with the illegal sale of narcotics and one with conspiracy to make a sale. The issue of entrapment went to the jury, and conviction followed. The Court of Appeals for the Second Circuit affirmed. 236 F. 2d 601. We granted \"certiorari. 352 U. S. 1000. The evidence discloses the following events. On January 14, 1954, petitioner was introduced to government agent Marshall by a government informer, Kowel. Although petitioner had known Kowel for approximately four years, he was unaware of Kowel’s undercover activities. Marshall was introduced as a big narcotics buyer. Both Marshall and petitioner testified concerning the ensuing conversation. Marshall testified that he immediately made it clear that he wanted to talk about buying large quantities of high-grade narcotics and that if petitioner were not interested, the conversation would end at once. Instead of leaving, petitioner questioned Marshall on his knowledge of the narcotics traffic and then boasted that while he was primarily a gambler, “he knew someone whom he considered high up in the narcotics traffic to whom he would introduce me [Marshall] and that I was able to get — and I can quote this — ‘88 per cent pure heroin’ from this source.” Marshall also stated that petitioner gave him a telephone number where he could be reached. In his testimony petitioner admitted that he was a gambler and had told Marshall that through his gambling contacts he knew about the narcotics traffic. He denied that he had then known any available source of narcotics or that he said he could obtain narcotics for Marshall at that time. Petitioner explained that he met Marshall only to help Kowel impress Marshall. Petitioner also said that it was Marshall who" } ]

[ { "docid": "23284781", "title": "", "text": "of law or, in the alternative, grant a new trial because of the asserted prejudicial errors. The defense of entrapment is not involved as to counts 7 and 8. Admittedly, the government’s case on these counts rests entirely upon its asserted proof of possession by Landry of the described narcotics. Landry contends that the proof was insufficient for this purpose and that the Court erred in its failure to direct a verdict. We shall first consider the defense of entrapment, concerning which many cases are called to our attention by the parties. Most of these casos lose their importance in view of two recent decisions of the Supreme Court, both decided May 19, 1958. Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, and Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859. In the former case, the Court cites and discusses not only its previous decisions but those of other courts. It reversed the Court of Appeals for the Second Circuit which had affirmed a narcotic conviction, and held as a matter of law that entrapment had been established. In the Masciale case, the Court held that the issue of entrapment had been properly submitted to the jury and affirmed a conviction. That the issue engenders confusion both in its substantive and procedural aspects is evidenced from the opinions of the Supreme Court in these two recent cases where the Court in each was divided five to four. In the Sherman case, the minority concurred in the view that entrapment had been shown as a matter of law, but upon reasoning and logic essentially different from that of the majority. In the Masciale case, the minority dissented upon the basis that the issue of entrapment should not be submitted to a jury but should be decided by the trial judge. The issue of entrapment was raised and was recognized by the trial Court in its submission of the issue to the jury. We are not convinced that entrapment was shown as a matter of law, although the testimony of Landry standing" }, { "docid": "9419816", "title": "", "text": "KILEY, Circuit Judge. Defendant was convicted by a jury of violation of the narcotics law and the judge sentenced him to fifteen years imprisonment. On the evening of December 11, 1960, narcotics agents received a call from Bed-ford, a “special employee” of the Bureau of Narcotics. They later met and conversed with him and drove him to a hotel in the south side of Chicago. Subsequently defendant drove up to and stopped near the hotel. The agents drove up behind his car. He sped away, was pursued by the agents, and in the chase shook an aluminum packet out of the car window. As agents arrested him, he tried to shake white powder from his clothes and brush it from the car seat. The powder was heroin. Defendant contends he was entitled to acquittal as a matter of law. He relies upon his uncontradicted testimony that he had befriended Bedford, the “special employee,” and purchased the narcotics, only after persistent importuning, in aid of Bedford’s health. The jury could weigh against this testimony the fact of defendant’s flight and his conduct at its end; his testimony about Bedford’s addiction and the agents’ contrary testimony; and the likelihood of his humanitarian purpose in having the heroin. Masciale v. United States, 356 U.S. 386, 388, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958). Defendant’s story presented enough for jury consideration, but he was not entitled to acquittal as a matter of law. We distinguish Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), where there was no question of credibility. We think, however, the judgment must be reversed for error which brought about an unfair trial. Three times defendant had subpoenas placed with the United States Marshal for service on Bedford as a witness for defendant. All were returned “Not Found.” Three petitions for production of Bedford in court were . denied. The reasons for the first denial at the trial were that the procedure for production was improper and: The Court: Would the Government know a Farlane Bedford, if he is involved in this matter? Mr. Berg:" }, { "docid": "17930644", "title": "", "text": "U.S. 1112, 94 S.Ct. 842, 38 L.Ed.2d 739 (1973); United States v. Ewbank, 483 F.2d 1149 (9th Cir. 1973); United States v. Pollard, 483 F.2d 929 (8th Cir. 1973), cert. denied, 414 U.S. 1137, 94 S.Ct. 882, 38 L.Ed.2d 762 (1974); and United States v. Hayes, 477 F.2d 868 (10th Cir.' 1973). Cf. United States v. Soto, 504 F.2d 557 (5th Cir. 1974); United States v. Mosley, 496 F.2d 1012 (5th Cir. 1974); and United States v. Oquendo, 490 F.2d 161 (5th Cir. 1974). See also Judge Friendly’s discussion in United States v. Archer, 486 F.2d 670, 674-77 (2d Cir. 1973). Generally, the division of opinion represents a continuation of the debate whether “objective” or “subjective” tests should be applied to the entrapment defense. It is this dispute which underlies the 5-4 division of the Supreme Court in Russell, supra. Although I have some doubt that the Russell decision left any viability to the substantive law in Bueno, I focus my dissent on the procedural aspects of that opinion. The Bueno court held that when a defendant testifies to facts which would establish an objective type of entrapment, the government must come forth with contrary evidence if it is to carry its burden of proving guilt beyond a reasonable doubt. As another panel of the Fifth Circuit Court of Appeals explains it, “ . . . when a defendant testified that he obtained the contraband from a government undercover agent, the Government must produce the undercover agent to contradict the defendant’s allegations in order to take the case to the jury. Ms. Reaves, the undercover agent, did in fact testify in this case. Then the jury must find beyond a reasonable doubt that the defendant did not obtain the contraband in question from the undercover agent.” United States v. Mosley, supra, 496 F.2d at 1015. Neither Bueno nor Mosley discussed the holding of the Supreme Court in United States v. Masciale, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958). That case involved a claim of subjective entrapment where criminal predisposition is a prominent element. The informant was not" }, { "docid": "5333317", "title": "", "text": "was still interested in purchasing cocaine, Guevara entered the telephone conversation and told Segal that he knew someone who might be interested in selling cocaine, and arranged for a meeting with Segal for later that evening. Finally, Ronald Segal, in his testimony relating to the initial meeting with the defendant, stated that he negotiated with the defendant and his three associates to purchase the approximately four ounces of cocaine tendered to him by the defendant during their meeting, and that, upon refusal to purchase the cocaine, Segal offered Guevara $5,000 to obtain a source of supply for substantial quantities of cocaine or heroin. Segal also testified to numerous telephone conversations between himself and the defendant, which both parties had initiated, subsequent to their initial meeting. Guevara admitted in his testimony that he attended the meeting at Segal’s office, but denied any participation in the cocaine transaction. He contended he became involved in the heroin transaction only after repeated solicitations by Segal, and that the inculpatory statements made to Agent Ne-doff and to Segal were merely lies calculated to lead them on for the purpose of obtaining the $5,000 offered to him by Se-gal. Thus, the jury was presented with specific evidence to refute the defendant’s claim that he was not predisposed to engage in the narcotics transaction which resulted in his arrest. Even if the defendant’s testimony was not contradicted, the jury was entitled to disbelieve that testimony and find against the defendant on the issue of entrapment. See, e. g., Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958); United States v. Garcia, 562 F.2d 411 (7th Cir. 1977). Nevertheless, we are convinced there was sufficient evidence in the record for the jury to conclude beyond a reasonable doubt that the defendant was not entrapped by agents of the federal government. III. Appellant also contends that the trial court erred as a matter of law in allowing certain hearsay statements to be introduced into evidence over his objections, and that the improper admission of this evidence mandates the reversal of his conviction. Although we" }, { "docid": "17930639", "title": "", "text": "source of the heroin or the way in which Chieves enlisted him in the enterprise. There was, however, Laguins’ testimony indicating that he had recruited Chieves, a charged offender, to find other persons from whom he might purchase drugs. Certainly, these circumstances lend plausibility to West’s testimony as to Chieves’ role, including the supplying of the drugs. Once this evidence of the source of the narcotics was introduced, the burden was upon the prosecution to prove beyond reasonable doubt that the government informer did not supply the drugs. United States v. Silver, 3d Cir. 1972, 457 F.2d 1217; United States v. Landry, 7th Cir. 1958, 257 F.2d 425; United States v. Bueno, supra. This the government did not even attempt to do. We are not sure whether our dissenting colleague disagrees with the general rule, which the Silver case adopts for this circuit, that the prosecution bears the burden of proof on entrapment when it becomes a contested issue in a criminal case. In any event, we think it must be the dissenting contention that the defendant’s unrefuted testimony, which if true would establish entrapment, must go to the trier of fact and, if the trier of fact disbelieves that testimony, then the prosecution can be said to have proved beyond reasonable doubt that there was no entrapment. .It seems to us that this in effect puts the burden of proof on the entrapment issue upon the accused. To avoid this improper consequence the burden of going forward, in this case the burden of making some showing contrary to the testimony of the accused, must be imposed on the prosecution, once evidence, sufficient on its face to prove entrapment, is introduced by the defense. In the absence of some such showing the court should enter a judgment of acquittal. What this procedural rule does is to prevent the trier of fact from ever passing upon the credibility of certain defense testimony, unless and until the prosecution has made some showing to the contrary. But this is no unreasonable burden here since a government agent knows and can testify to the" }, { "docid": "22883449", "title": "", "text": "Sorrells, that the defense of entrapment should concentrate upon the conduct of the government agent and not upon the issue of predisposition, for otherwise, as the opinion states: “The defendant must either fore-go the claim of entrapment or run the substantial risk that, in spite of instructions, the jury will allow a criminal record or bad reputation to weigh in its determination of guilt of the specific offense of which he stands charged. Furthermore, a test that looks to the character and predisposition of the defendant rather than the conduct of the police loses sight of the underlying reason for the defense of entrapment. No matter what the defendant’s past record and present inclinations to criminality, or the depths to which he has sunk in the estimation of society, certain police conduct to ensnare him into further crime is not to be tolerated by an advanced society.” 356 U.S. at 382-83, 78 S.Ct. at 826. From the nature of the defense of entrapment as indicated by the foregoing discussion the following consequences flow: 1. When the evidence points toward inducement by the Government, as in this case it does due to the use made of Burnett, who had been supplied by the Police Department with funds for the purchase, and the Government then seeks to meet the claim of entrapment by showing predisposition or readiness on the part of the accused to commit the offense, the burden of establishing this reply to the claim of entrapment falls upon the Government. Though the majority opinion in Fletcher, supra note 6, does not go into this matter, it is brought forth in Judge Edgerton’s dissent. And in United States v. Masciale, 236 F.2d 601 (2d Cir. 1956), aff’d, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859, the opinion of Judge Hincks, concurred in by Chief Judge Clark, states: “the burden was on the Government by way of reply to the defense of entrapment, to prove a sufficient excuse for the inducement. United States v. Sherman, 2 Cir., 200 F.2d 880, 882. In that case, this court said: “ ‘It is a" }, { "docid": "23284788", "title": "", "text": "the ground of entrapment, you must believe from the evidence that the prosecuting witnesses * * * lured the defendant to commit the acts charged.” The government in its brief states: “In any event, the burden is upon the defendant to produce evidence that government agents induced him to commit the crime; only when such evidence has been brought out by the defendant must the government prove, beyond a reasonable doubt, that inducement was not the cause or creator of the crime.” Two cases are cited in support of this statement. United States v. Sherman, 2 Cir., 200 F.2d 880, 882, and United States v. Masciale, 2 Cir., 236 F.2d 601, 603, affirmed 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859. In Masciale, the Court stated (at page 603): “On the facts, we think it plain that this is a case in which both the sale and the conspiracy were induced by Marshall, a Government agent. That being so, the burden was on the Government, by way of reply to the defense of entrapment, to prove a sufficient excuse for the inducement.” The Sherman case , in different phraseology, announced the same rule. The Supreme Court in Sherman recognized the same principle. It stated (356 U.S. at page 371, 78 S.Ct. at page 820): “At trial the factual issue was whether the informer had convinced an otherwise unwilling person to commit a criminal act or whether petitioner was already predisposed to commit the act and exhibited only the natural hesitancy of one acquainted with the narcotics trade.” The Court also stated (356 U.S. at page 373, 78 S.Ct. at page 821): “It is patently clear that petitioner was induced by Kalchinian [informer] .” And further the Court stated (356 U.S. at page 375, 78 S.Ct. at page 822): “The Government sought to overcome the defense of entrapment by claiming that petitioner evinced a ‘ready complaisance’ to accede to Kalchinian’s request.” In the instant case it is not open to doubt but that defendant was induced by Moses to procure the heroin on the two occasions involved. Such being the" }, { "docid": "3437198", "title": "", "text": "charges and was awaiting sentence, telephoned Place telling him that a friend from Schenectady, “Sheik” Davis (actually a government agent), wanted to buy two ounces of heroin from Place. To fill this and one other order Place planned to buy one ounce of pure heroin. That evening Davis and Manning drove to Place’s 80th Street apartment. Manning alone entered the apartment and Place told him that he would get the drugs but he wanted to get a small supply for himself. Place, Manning and Davis then drove around for about half an hour during which time they discussed Davis’ proposed purchase of two ounces of heroin. Pursuant to an agreement then reached between Davis and Place, Place, on return to his apartment, arranged to receive a supply of heroin intended for Davis and another customer and sent Canty and Schimanskey to pick up this supply. The sale to Davis, after payment of $300 to Place through Manning, was finally consummated on the following afternoon, May 17, when Manning at a drug store to which Place had directed him picked up a package of heroin which he immediately turned over to Davis, the agent, who was waiting outside in his automobile. At the trial, as here, the major contentions center around the part played by Manning in the transaction underlying these convictions. The defendants sought to maintain the defense of entrapment. They also asserted as a defense the illegal conduct of Manning, the Government’s special employee, in providing Place with narcotics for his personal use; this illegal conduct, it was maintained, precluded prosecution for the crimes committed by the defendants which so shortly followed. First, as to the defense of entrapment. The defendants, now on appeal, contend that the issue of entrapment was one for the judge, relying for that position on the dissenting opinion in Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859. They posit error on the judge’s action in submitting the issue to the jury. We think the law in its present state is to the contrary and hold that when the state" }, { "docid": "16391230", "title": "", "text": "of law but beyond their authority, induced Anderton to commit the crimes of which he was accused. This instruction would have shifted the focus of the defense from the defendant’s predisposition to the government’s misconduct. If a governmental misconduct defense survives Hampton at all, it is a question of law, not for submission to the jury, United States v. Graves, 556 F.2d 1319 (5th Cir. 1977), cert. denied, 435 U.S. 923, 98 S.Ct. 1485, 55 L.Ed.2d 516 (1978), so the court was correct in refusing to give the requested charge. We are satisfied that the conduct of the government employees in this case was not such that we should exercise our supervisory power to bar prosecution. See id., 556 F.2d at 1325-26. . There is no entrapment if the unwitting agent merely introduces the defendant to the official, Romano; he must induce the crime. Cf. Masciale v. United States, 356 U.S. 386, 387, 78 S.Ct. 827, 828, 2 L.Ed.2d 859, 861 (“It is noteworthy that nowhere in his testimony did [the defendant] state that during the conversation either [agent] tried to persuade him to enter the narcotics traffic.”). Although both Anderton and Pittman, who were the only witnesses to their conversations, testified that Pittman pressured Anderton, the jury could have rejected their testimony. Masciale, 356 U.S. at 388, 78 S.Ct. at 828, 2 L.Ed.2d at 861. Neither party suggest that the court (as opposed to the jury) should have decided this issue. Perl, Garcia and Romano all assume that the extent of government involvement is a question for the jury where, as here, there is some evidence of government participation. But cf. Masciale, 356 U.S. at 388, 78 S.Ct. at 828, 2 L.Ed. at 861 n.5 (declining to consider a similar question), and the dissent of Justice Frankfurter therein. . We note that several opinions in entrapment cases have used the term “agent” in the context of a government employee. Sorrells, 287 U.S. at 440, 53 S.Ct. at 212, 77 L.Ed. at 416; Graves, 556 F.2d at 1323. . The better practice would be to instruct the jury on the" }, { "docid": "2671894", "title": "", "text": "entrapment should have been given as to the sale counts in the indictment. Johnson v. United States, supra, Note 3. . The possession counts and the sale counts must be distinguished. As to possession, it is of coui'se true that there can be no entrapment if an accused had the narcotics in his actual custody at the very moment he was first approached by Government agents. If he should leave them after that first approach, however, to go and fetch the narcotics, then the issue of entrapment would be raised as to possession also. . Trent v. United States, 109 U.S.App.D.C. 152, 154, n. 2, 284 F.2d 286, 288, n. 2 (1960). To the same effect, see Hansford v. United States, supra, 112 U.S.App.D.C. at 364, 303 F.2d at 224. . In United States v. Sherman, 2 Cir., 200 F.2d 880, 882-883 (1952), Judge Learned Hand also stated the rule in two parts: “Therefore in such cases two questions of fact arise: (1) did the agent induce the accused to commit the of-fence charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence. On the first questíon the accused has the burden; on the second the prosecution has it. * * * ” See also United States v. Masciale, 2 Cir., 236 F.2d 601 (1956), affirmed, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958). The Hand doctrine has been adopted in this Circuit. Hansford v. United States, supra, 112 U.S.App.D.C. at 364, 303 F.2d at 224; Johnson v. United States, 115 U.S.App.D.C. 63, 317 F. 2d 127, 129 (1963). . In Johnson, supra, Note 3, Judge Fahy wrote: “ * * * Here the evidence does not show, as sometimes is the case, that personal importuning or coercive tactics were used by the ofScer to persuade appellant. We do have, however, the furnishing by the officer of Government money, itself a persuasive factor, to an intermediary acting for the officer in carrying out the tansaction, with a ‘reward’ to the accused of" }, { "docid": "18630283", "title": "", "text": "See United States v. Morris, 974 F.2d 587, 588 (5th Cir.1992). The entrapment defense involves an analysis of two factors: (1) inducement by the government; and (2) the defendants’ predisposition, before any contact with government agents, to commit the crime charged. United States v. Arditti, 955 F.2d 331, 342 (5th Cir.), cert. denied, — U.S. -, 113 S.Ct. 597, 121 L.Ed.2d 534 (1992). Although the government has the burden of proving that the defendants were predisposed to commit the offense, the defendants must first make a prima facie showing of entrapment by presenting some evidence that actions by the government created a substantial risk that an offense would be committed by a person not ready to commit it. Id. (quoting United States v. Johnson, 872 F.2d 612, 621 (5th Cir.1989). Generally speaking, a defendant’s testimony cannot by itself establish entrapment as a matter of law because, absent unusual circumstances, the jury is almost always entitled to disbelieve that testimony. Masciale v. United States, 356 U.S. 386, 389, 78 S.Ct. 827, 829, 2 L.Ed.2d 859 (1958) (jury was entitled to disbelieve defendant’s uncontradicted testimony as to his persuasion by informant who did not testify; hence jury could reject entrapment defense even though raised by defendant’s testimony). The jury was entitled to, and indeed apparently did, disbelieve Medina’s and Mora’s descriptions of Russell’s behavior. Although the government did not introduce any evidence directly contradicting their story about Russell’s threats, there was other evidence which cast doubt on the defendants’ credibility. Medina denied ever having any discussions with Agent Geller, which was contradicted by Geller’s testimony. And, Medina’s testimony exculpating Sosa and Lira was contradicted by a wealth of circumstantial evidence. Mora and Medina contradicted each other as to whether Medina discussed delivery of marihuana with Geller. Moreover, neither Medina nor Mora, who is Medina’s cousin, went to the police about the threats by Russell, even though Medina’s brother is a chief of police in New Mexico. The evidence revealed that Medina had the ability to procure marihuana on his own from suppliers of considerable quantity. In addition, Russell and Medina were acquainted" }, { "docid": "4205901", "title": "", "text": "the agent testified that he did not know how the heroin came into Johnson’s possession and conceded that the informer was either an addict or an ex-addict. ' In support of his defense of lack of specific intent, and entrapment, Johnson testified that he came from another city to collect a debt owed by the government informer; that the informer told him he had no money, but could acquire some with Johnson’s assistance by the sale of “fake” heroin, and that the informer supplied the two packages which were delivered to the government agent. Johnson also contends that he had no prior involvement in the sale of drugs and that the informer was motivated to “frame” him due to the involvement of both men with the same girlfriend. If, as Johnson testified, the informer provided the heroin which was sold to the undercover agent, we think the government would have been perilously close to what Justice Rhenquist conceived in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), as conduct so outrageous as to violate standards of due process. 3 However, absent any positive proof of the origin of the narcotics in question, we must focus on the issue of Johnson’s intent and predisposition. Johnson testified that he was ready and willing to participate in the sale of only a fake powder. If the jury believed this testimony, in the context of the undisputed facts of the sale, Johnson would have been entitled to a verdict of acquittal for the lack of the necessary knowledge and intent to sell a controlled substance as required by 21 U.S.C. § 841(a). The case was submitted on Johnson’s uncontradieted testimony to that effect but, by its verdict, the jury obviously chose to disbelieve him, as it was entitled to do. United States v. Saka, 339 F.2d 541, 543 (3d Cir. 1964). Cf. Masciale v. United States, 356 U.S. 386, 388, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958); United States v. Workopich, 479 F.2d 1142 (5th Cir. 1973). Having disbelieved Johnson’s testimony, the jury had sufficient evidence, including Johnson’s" }, { "docid": "17930640", "title": "", "text": "the defendant’s unrefuted testimony, which if true would establish entrapment, must go to the trier of fact and, if the trier of fact disbelieves that testimony, then the prosecution can be said to have proved beyond reasonable doubt that there was no entrapment. .It seems to us that this in effect puts the burden of proof on the entrapment issue upon the accused. To avoid this improper consequence the burden of going forward, in this case the burden of making some showing contrary to the testimony of the accused, must be imposed on the prosecution, once evidence, sufficient on its face to prove entrapment, is introduced by the defense. In the absence of some such showing the court should enter a judgment of acquittal. What this procedural rule does is to prevent the trier of fact from ever passing upon the credibility of certain defense testimony, unless and until the prosecution has made some showing to the contrary. But this is no unreasonable burden here since a government agent knows and can testify to the relevant facts, thus getting the issue and the question of credibility it involves to the jury. We deem this a fair and appropriate way of avoiding an improper imposition of the burden of proof upon the accused. The decision of the Supreme Court in Masciale v. United States, 1958, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859, upon which the dissent-opinion relies, does not discredit the foregoing analysis. For even though there was no direct contradiction of testimony of Masciale that he had been overborne by the overreaching of a government agent, the prosecution satisfied its burden of going forward through contravening testimony of its witness that the accused, when solicited to procure narcotics, had boasted of his acquaintance with someone “high up in the narcotics traffic” and of his ability to procure heroin. Cf. United States v. Soto, 5th Cir. 1974, 504 F.2d 557. It follows that the conviction on counts 1 and 2 cannot stand. However, count 3 presents different considerations. West does not contend that Chieves supplied him with the two" }, { "docid": "21354090", "title": "", "text": "most favorable to the government, established entrapment as a matter of law, and therefore the trial judge should have directed an acquittal on both counts of the indictment. Defendant also claims that the trial judge made several reversible errors in his charge to the jury. Because none of these points were raised in timely fashion at the trial, we shall notice them only if they demonstrate “plain errors or defects affecting substantial rights.” Fed. R.Crim.P. 52(b). According to the often-cited discussion by Judge Learned Hand in United States v. Sherman, 200 F.2d 880, 882 (2 Cir. 1952), the defense of entrapment raises two questions of fact: “(1) did the agent induce the accused to commit the offence charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence.” The trial judge charged the jury that it must determine these two issues. We need not decide whether defendant’s testimony, if true, warranted a directed verdict in his favor. The jury was entitled to disbelieve defendant’s version of the facts and to rely only on the evidence presented by the government. See Masciale v. United States, 356 U.S. 386, 388, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958). Moreover, the jury could rationally conclude, on the basis of Gonzales’ testimony, that defendant was predisposed to sell narcotics, within the meaning of Judge Hand’s question (2), See United States v. Orza, 320 F.2d 574 (2 Cir. 1963). Therefore, we hold that the evidence did not establish entrapment as a matter of law. On the other hand, we hold that the trial judge committed plain error in charging the jury on Judge Hand’s question (1). The trial judge stated: “Now on the first question, that is, the inducement, the defendant has the burden of proof. That is, the defendant must sustain the burden of proving that the government agents induced him to commit the crimes charged. “On the second question, that is, the defendant’s willingness or predisposition, the government has the burden of proof.” This charge was in line with" }, { "docid": "4388779", "title": "", "text": "not —that position would extend the suppression of evidence doctrine to lengths beyond any which have been drawn to our attention. We have examined the contention of appellant that the indictment was defective and find no error. Affirmed. . Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 2 L.Ed.2d 848. EDGERTON, Circuit Judge (dissenting). A police informer induced appellant to sell him heroin. “That being so, the burden was on the Government, by way of reply to the defense of entrapment, to prove a sufficient excuse for the inducement.” United States v. Masciale, 2 Cir., 236 F.2d 601, 603. The reason for this rule seems clear. “The function of law enforcement * * * does not include the manufacturing of crime.” Ordinarily, government agents who induce crime are guilty of crime and the man they induce has the defense of entrapment. The Government must therefore prove extraordinary circumstances in order to convict. Judge Learned Hand said: “two questions of fact arise: (1) did the agent induce the accused to commit the offence charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence. On the first question the accused has the burden; on the second the prosecution has it. * * * [S]ince the prosecution had the burden upon the issue of the excuse for inducement, it had to satisfy the jury that [the defendant] did not need any persuasion; but that he stood ready to procure heroin for anyone who asked for it.” United States v. Sherman, 2 Cir., 200 F.2d 880, 882-883. This court has said “reasonable suspicion” that a person is “engaging in such conduct” excuses inducement. Childs v. United States, 105 U.S.App.D.C. 342, 343, 267 F.2d 619, 620. The Government’s brief rightly says appellant’s conviction rests upon the tes timony of a Metropolitan Police Officer. The officer testified that he gave the informer money to buy narcotics, that the informer said he would buy them from George Fletcher, and that the officer then saw the following events. The" }, { "docid": "3437199", "title": "", "text": "had directed him picked up a package of heroin which he immediately turned over to Davis, the agent, who was waiting outside in his automobile. At the trial, as here, the major contentions center around the part played by Manning in the transaction underlying these convictions. The defendants sought to maintain the defense of entrapment. They also asserted as a defense the illegal conduct of Manning, the Government’s special employee, in providing Place with narcotics for his personal use; this illegal conduct, it was maintained, precluded prosecution for the crimes committed by the defendants which so shortly followed. First, as to the defense of entrapment. The defendants, now on appeal, contend that the issue of entrapment was one for the judge, relying for that position on the dissenting opinion in Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859. They posit error on the judge’s action in submitting the issue to the jury. We think the law in its present state is to the contrary and hold that when the state of the evidence is such as to create an issue of fact, the issue is one for the jury. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, and Masciale v. United States, supra. In this case, however, we find no evidence whatever of entrapment. There was a wealth of unconlradicted evidence that both defendants were thoroughly predisposed to violate the narcotics laws, were currently and continuously dealing in narcotics, and that Place, indeed, had supplied narcotics to Manning before the latter had volunteered to serve as an informer. There was no evidence that the sale charged was “the product of the creative activity” of Davis or Manning or any other Government agent, or that the agents went further than to “afford opportunities or facilities for the commission of the offense,” within the meaning of the cases above cited. Unlike the defendant in the Sherman case, the defendants here were not innocent parties seeking to break themselves of" }, { "docid": "134456", "title": "", "text": "States v. Bueno, 447 F.2d 903 (5th Cir. 1971), cert. denied, 411 U.S. 949, 93 S.Ct. 1931, 36 L.Ed.2d 411 (1973) for his contention that he was entitled to a dismissal as a matter of law in light of the Government’s failure to come forward with evidence (i. e., the failure of the Government to produce Sawden at trial) contradicting his testimony that Sawden had represented himself to be an agent, had solicited Gurule’s help to “crack” a drug ring, and had provided the drugs for disbursement, which testimony, standing uncontradicted, clearly evidenced entrapment. The per se rule seemingly established in Bueno —and urged by appellant here — requiring a finding of entrapment when the Government fails to produce the informant-agent to rebut the defendant’s testimony as to entrapment has recently come under attack. See, Judge Weis’ dissent in United States v. West, supra; United States v. Jett, 491 F.2d 1078 (1st Cir. 1974); United States v. Hayes, supra. In United States v. Johnson, supra, we held that even absent the rebutting testimony of the Government’s informant, the jury is entitled to disbelieve the uncontradicted portions of testimony of a defendant alleging entrapment. See also, Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958). We fail to see any reason why the jury should be accorded less discretion to disbelieve the defendant’s uncorroborated testimony that he was supplied narcotics by the informant. But see contra, Bueno, supra. Our review of the record indicates that the defense of entrapment was not unmistakably established merely by virtue of Gurule’s testimony and, in light of certain conflicting evidence discussed infra, the issue was properly submitted to the jury. Furthermore, the jury, having disbelieved Gurule’s testimony — as evidenced by the verdict — had before them sufficient substantial evidence, in our judgment, to find beyond a reasonable doubt that Gurule was “ready and willing” to commit the offense charged and had not been supplied narcotics by the Government’s informant. In this regard, we deem the following significant: (a) while Gurule testified that he was in continuous contact with Sawden" }, { "docid": "17930638", "title": "", "text": "same three people within a ten day period were all part of a scheme proposed by a government agent, the relevant predisposition is West’s attitude on January 19, just before the government agent enlisted his participation in the venture. Certainly, the fact that he was not indicted for his first sale in implementation of the informer’s plan does not make that sale evidence that he was already engaged in the drug traffic or merely awaiting an opportunity to do so. West’s conduct undoubtedly reflects unfavorably upon his strength of character, but it does not establish a prior inclination to engage in this evil business. And the evidence that he was and for a considerable time had been regularly employed as a municipal truck driver, the prosecution’s concession that he appeared to be a first time offender and the fact that, after his arrest, it was deemed appropriate to release him on his own recognizance all point the other way. We have not overlooked the fact that West’s own testimony was the only evidence of the source of the heroin or the way in which Chieves enlisted him in the enterprise. There was, however, Laguins’ testimony indicating that he had recruited Chieves, a charged offender, to find other persons from whom he might purchase drugs. Certainly, these circumstances lend plausibility to West’s testimony as to Chieves’ role, including the supplying of the drugs. Once this evidence of the source of the narcotics was introduced, the burden was upon the prosecution to prove beyond reasonable doubt that the government informer did not supply the drugs. United States v. Silver, 3d Cir. 1972, 457 F.2d 1217; United States v. Landry, 7th Cir. 1958, 257 F.2d 425; United States v. Bueno, supra. This the government did not even attempt to do. We are not sure whether our dissenting colleague disagrees with the general rule, which the Silver case adopts for this circuit, that the prosecution bears the burden of proof on entrapment when it becomes a contested issue in a criminal case. In any event, we think it must be the dissenting contention that" }, { "docid": "17930641", "title": "", "text": "relevant facts, thus getting the issue and the question of credibility it involves to the jury. We deem this a fair and appropriate way of avoiding an improper imposition of the burden of proof upon the accused. The decision of the Supreme Court in Masciale v. United States, 1958, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859, upon which the dissent-opinion relies, does not discredit the foregoing analysis. For even though there was no direct contradiction of testimony of Masciale that he had been overborne by the overreaching of a government agent, the prosecution satisfied its burden of going forward through contravening testimony of its witness that the accused, when solicited to procure narcotics, had boasted of his acquaintance with someone “high up in the narcotics traffic” and of his ability to procure heroin. Cf. United States v. Soto, 5th Cir. 1974, 504 F.2d 557. It follows that the conviction on counts 1 and 2 cannot stand. However, count 3 presents different considerations. West does not contend that Chieves supplied him with the two bundles of heroin found in his car. Rather, he testified that he did not know how it got there. Laguins testified that a few minutes before West’s arrest and the discovery of this heroin in his possession, West had stated in a telephone conversation that he was en route to deliver two bundles to Laguins. Thus, the defense that must prevail on counts 1 and 2 is not supported by the evidence on count 3. However, West was sentenced generally to five years imprisonment on all three counts. It may well be that if the court had considered only the third count and the evidence relevant to the events of January 29, as now it must, a less severe sentence would have been imposed. Therefore, there must be a re-sentencing on count 3. The conviction on counts 1 and 2 will be reversed and the general sentence vacated. The conviction on count 3 will be affirmed. The cause will be remanded for entry of judgment of acquittal on counts 1 and 2 and for resentencing" }, { "docid": "22883450", "title": "", "text": "the evidence points toward inducement by the Government, as in this case it does due to the use made of Burnett, who had been supplied by the Police Department with funds for the purchase, and the Government then seeks to meet the claim of entrapment by showing predisposition or readiness on the part of the accused to commit the offense, the burden of establishing this reply to the claim of entrapment falls upon the Government. Though the majority opinion in Fletcher, supra note 6, does not go into this matter, it is brought forth in Judge Edgerton’s dissent. And in United States v. Masciale, 236 F.2d 601 (2d Cir. 1956), aff’d, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859, the opinion of Judge Hincks, concurred in by Chief Judge Clark, states: “the burden was on the Government by way of reply to the defense of entrapment, to prove a sufficient excuse for the inducement. United States v. Sherman, 2 Cir., 200 F.2d 880, 882. In that case, this court said: “ ‘It is a valid reply to the defence, if the prosecution can satisfy the jury that the accused was ready and willing to commit the offense charged, whenever the opportunity offered.’ 236 F.2d at 603. In the earlier case of United States v. Sherman, 200 F.2d 880 (2d Cir. 1952), Judge Learned Hand had said: “in such cases two questions of fact arise: (1) did the agent induce the accused to commit the offence charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence. On the first question the accused has the burden; on the second the prosecution has it.” 200 F.2d at 882-83. 2. Another consequence has to do, not with the burden of proof, but with the character of proof. We have seen above that in rebutting the claim of entrapment the Government recalled Officer Hutcherson to the stand. He then testified as to the alleged sales made by defendant which the officer said he had witnessed on an occasion" } ]

[ { "docid": "18317118", "title": "", "text": "that its source was the nonpayment of commissions, the Court would again be drawn into the question as to whether the Debtor should have been paying full commissions for all, or any, of the employees placed during the year prior to its bankruptcy and whether this claim should be disallowed or allowed in full or in part-certainly a necessary precondition to SCB’s claimed right of setoff, if any. 11 U.S.C. § 553(a)(1). Again, genuine issues of material fact preclude an award of summary judgment. IV. CONCLUSION For the foregoing reasons, SCB’s “Motion for Summary Judgment” is DENIED. A separate Order in conformity with this Memorandum of Decision shall issue forthwith, which Order shall also schedule a further pre-trial conference. . Because the instant bankruptcy case was filed in 2002, statutory amendments subsequently made by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) are not applicable here. Unless otherwise noted, all statutory references are to Title 11 of the United States Code, §§ 101 et seq. (the \"Bankruptcy Code” or the \"Code”) as in effect in the year 2002. . According to an affidavit submitted by Richard Clark (the \"Clark Affidavit”), the former Chief Financial Officer of the Debtor, the maximum fee to the Debtor was twenty percent (20%), but was oftentimes reduced due to volume discounting. The payment structure between SCB and the Debtor is not in dispute. .This Court questions whether the $1,000.00 September 6th payment was made in 2002 or 2003. The Trustee does not raise § 549 or raise any other issue relative to a post-petition transfer in her complaint and it may be that the reference to the year 2003 is a typographical error overlooked by the parties. In any event, the actual date of that transfer does not control the disposition of the instant Motion for Summary Judgment. . Except as provided in subsection (c) of this section, the trustee may avoid any transfer of interest of the debtor in property— (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the" } ]

[ { "docid": "21174435", "title": "", "text": "purposes of generating sales for GWFS. (7056-1 statement ¶ 35; Ex. C ¶ 11 and Ex. No. 5 thereto.) After terminating her employment with GWFS, she opened a travel company named Unlimited Fun Safaris. (7056-1 statement ¶ 36; Ex. C ¶ 12.) The Debtor did not assist her mother in the business of Unlimited Fun Safaris until after GWFS ceased operations. (7056-1 statement ¶ 37; Ex. A ¶ 16; Ex. C ¶ 13.) The Debtor filed a Chapter 7 bankruptcy petition on September 9, 2005. She received a discharge on May 22, 2006. The Plaintiffs filed this adversary proceeding on December 12, 2005. The Debtor filed the instant motion for summary judgment on January 17, 2007. Some of the evidence supporting the motion consists of the Debtor’s eighteen-paragraph affidavit; a bank statement for GWFS; numerous copies of checks written on the Bank One Account; an illegible copy of a state court order; the Debtor’s deposition taken in the state court proceedings; Joyce Basel’s thirteen-paragraph affidavit; a copy of the agreement between FSI and GWFS; an account analysis of the Bank One Account for the period March 1-31, 2002; and a letter dated August 6, 2002 to Peter Vozel-la from the Baséis, the Debtor, and Van Aswegen. How these documents tie together is a conundrum to the Court. Indeed, this evidence submitted in support of the motion does not constitute a clear ro-admap that defeats all essential elements of the Plaintiffs’ alleged causes of action. This may be viewed more appropriately as the tip of the litigation iceberg. The gist of the complaint is that the Debtor diverted and misappropriated funds of GWFS for her personal expenses. Further, according to the Plaintiffs, the Debtor, along with, the Baséis and Van Aswegen, incorporated other companies and usurped GWFS’s corporate opportunities. The Plaintiffs allege that the Debtor misappropriated, stole, and converted in excess of $2,500,000.00 from GWFS for her personal benefit. They also allege that the Baséis, Van Aswegen, and the Debtor made material misrepresentations about FSI’s business and solvency which induced the Plaintiffs to agree to the acquisition. The Debtor denies any" }, { "docid": "6634472", "title": "", "text": "amount of $8,267.02 was deposited into the Ohio Account; on October 25, 2002, the amount of $6,332.45 was deposited into the Ohio Account; and on November 1, 2002, the amount of $7,596.13 was deposited into the Ohio Account. (UST’s Exhibit 3). The deposits represent real estate commissions that had been previously earned by the Debtor, and that were paid to the Debtor by Coldwell Banker between October 3 and October 25, 2002. (UST’s Exhibit 2). The Debtor testified that he transferred the funds to the Ohio Account so that his son could pay his (the Debtor’s) bills and handle his financial affairs for him. (Transcript, pp. 22, 42). On or about November 4, 2002, three days after the last deposit into the Ohio Account, the Debtor traded his 1986 BMW for a 2000 Toyota. The purchase price for the Toyota, after credit for the trade-in value of the BMW, was $14,407.87. The purchase price was paid by a check written on the Ohio Account. (UST’s Exhibit 3). The Certificate of Title to the Toyota was issued to the Debtor’s son, Oliver Moeritz, on November 21, 2002. (UST’s Exhibit 4). The Debtor testified, however, that he purchased the vehicle for his own use in connection with his occupation as a realtor, and that he was in possession of the car. (Transcript, pp. 27, 38-39, 43, 47). One month after the purchase of the Toyota, on December 20, 2002, the Debtor filed his petition under chapter 7 of the Bankruptcy Code. On his “Schedule B— Personal Property,” the Debtor represented that he owned no bank accounts or other financial accounts, no interest in any business, and no vehicles. Additionally, on his Statement of Financial Affairs, the Debtor represented that he had made no gifts or other transfers within the one-year period prior to the filing of the petition, and that he had owned no interest in any business within the six-year period prior to the bankruptcy. The Schedules and Statement of Financial Affairs were signed on December 18, 2002. On March 24, 2003, the UST filed a Complaint Objecting to the Entry" }, { "docid": "17374758", "title": "", "text": "transfer could not possibly have been a transfer of proceeds from the August 2008 student loan, so Marquette’s oral express trust argument does not apply to this transfer. The Trustee has demonstrated, beyond any genuine dispute, all of the necessary elements for avoidance of the first transfer, under his constructive fraudulent transfer theories. V. Conclusion For the reasons stated in this opinion, the Court will enter an order (1) granting the Trustee’s motion for partial summary judgment with respect to the first transfer (the $400.00 transfer on May 8, 2008), and otherwise denying the motion; and (2) granting Marquette’s motion for summary judgment with respect to the fourth transfer (the $43.00 post-petition transfer on November 20, 2008), and otherwise denying the motion. . Docket #19. . Id. at 2 ¶ 8. . Cf. Barnhill v. Johnson, 503 U.S. 393, 394-95, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992)(holding that for purposes of avoiding a transfer as a preference under 11 U.S.C. § 547, \"a transfer made by check should be deemed to occur ... on the date the drawee bank honors it”). . These dates are established by the Debtors’ bank statements and copies of the four checks at issue, filed by the Trustee (Docket #31, Exs. 6J, 6E), and by the Affidavit of the Debt- or Carmen Leonard filed by Marquette (Docket # 27, Ex. C at ¶¶ 10, 13, 15, 33, 34, 37-38). . Because the $43.00 transfer made on November 20, 2008 was a post-petition transfer, it cannot be avoided as a fraudulent transfer under either § 548 or § 544(b) of the Bank ruptcy Code. See discussion in part IV-B-4 of this opinion. . Docket # 27, Ex. A. . Docket #31, Ex. 6D. . The exact date of this deposit is shown by the Debtors' checking account statement for the period July 19, 2008 to August 19, 2008, on the second page of that statement (Docket #31, Ex. 6J). See also Docket #27, Ex. B (Aff. of Benjamin Leonard) ¶ 10; Ex. C (Aff. of Carmen Leonard) ¶¶ 6-8; and Ex. D (Aff. of William Leonard)" }, { "docid": "603323", "title": "", "text": "MEMORANDUM OPINION JUDITH K. FITZGERALD, Chief Judge. The matter before the court is Dollar Bank’s (“Dollar”) objection to Debtor’s amended exemptions. The issue involved analysis of which of two sections of the Bankruptcy Code “trumps” the other: § 522 which protects a debtor’s fresh start by permitting exemptions or § 553 which protects certain setoff claims of creditors. In our Memorandum Opinion dated February 2, 2004, 304 B.R. 718 (Bankr.W.D.Pa.2004) (“Tarbuck II ”), we granted Dollar’s motion for relief from stay to exercise its right of setoff. However, we stayed the order granting relief from stay to afford Debtor the opportunity to amend his Schedule C to claim an exemption in the deposit account. We did not address the question now before us as to whether Dollar’s right of setoff can defeat Debtor’s claim of exemption. The facts of this case are not disputed. In May of 1994, the Debtor and his wife borrowed $480,000 from Dollar pursuant to the terms of a note secured by a mortgage. Debtor defaulted on the loan prior to the commencement of the bankruptcy case. Dollar filed a complaint in confession of judgment against the Debtor and his wife in March of 2001, and received a judgment in the amount of $472,746.54, plus costs and additional interest from March 2, 2001. On September 26, 2001, the Debtor filed a voluntary petition under chapter 11 of the Bankruptcy Code and, on January 25, 2002, the ease was converted to a chapter 7 proceeding. On June 12, 2002, Dollar was granted relief from the automatic stay to exercise its rights with respect to the real property secured by the mortgage. On or about August 26, 2002, Dollar filed a prae-cipe for a writ of execution and a sheriffs sale was set for November 1, 2002. The mortgaged premises were sold to Dollar at the Washington County Sheriffs Sale on November 1, 2002. The amount realized at the sheriffs sale was insufficient to satisfy the debt. On November 27, 2002, Dollar sold the premises for $505,718.30, realizing net proceeds of $418,457.33. After crediting all amounts received as" }, { "docid": "21195290", "title": "", "text": "Stratos’s summary judgment motion states that the settlement agreement stems from a dispute over a $2.9 million product design and development contract entered into on November 8, 2000, under which Ahaza fell behind on its monthly payments. Stratos has not, however, presented evidence supporting this allegation, and Wood has not so admitted or alleged. We therefore do not accept it as an undisputed fact on summary judgment. See generally Barcamerica Int’l USA Trust v. Tyfteld Importers, Inc., 289 F.3d 589, 593 n. 4 (9th Cir.2002) (\"[Ajrguments and statements of counsel are not evidence and do not create issues of material fact capable of defeating an otherwise valid motion for summary judgment.” (internal quotation omitted)). . Unless otherwise specified, all references to 11 U.S.C. § 547 in this opinion are to the statute as it existed prior to the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8, 119 Stat. 23 (\"2005 Act”), whose amendments do not apply to proceedings like this one, which commenced prior to the Act's enactment on April 20, 2005. Tit. XII, § 1213, 119 Stat. at 195. . Section 547(b) defines a preferential transfer as “any transfer of an interest of the debtor in property” that was: (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made — ■ (A) on or within 90 days before the date of the filing of the petition; or (B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and (5) that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under chapter 7 [of the Bankruptcy Code]; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by the provisions of [the Bankruptcy Code], 11 U.S.C. § 547(b) (2000). . The 2005 Act" }, { "docid": "18403748", "title": "", "text": "that its financing arrangement with the Debtor was a consumer transaction. Hazlett, as the non-moving party, failed to come forward with specific facts showing that there is a genuine issue for trial. His conjecture — which is utterly devoid of evidentiary support — that the Debtor either failed to appreciate the distinction between a consumer and commercial transaction, or colluded with Deere to mischaracterize the transaction, simply does not establish the existence of a genuine issue of material fact. Deere accordingly is entitled to summary judgment on the Trustee’s § 544(a)(1) avoidance claim. The Court’s determination that Deere’s security interest in the Equipment was properly perfected also disposes of the Trustee’s preference claim, which was pleaded in the most cursory fashion. The Contract was executed on January 12, 2005 and the lien attached that day. The Debtors filed their petition on August 10, 2005, well outside the 90-day look-back period for avoidance of a preferential transfer under 11 U.S.C. § 547(b)(4)(A). Thus, Deere also is entitled to summary judgment on the Trustee’s preference claim. IY. Conclusion For the foregoing reasons, the Motion is GRANTED. A separate judgment entry dismissing the Complaint will be entered. IT IS SO ORDERED. . Deere filed its Amended Motion for Summary Judgment (\"Motion”) (Doc. 14) on November 11, 2006. Hazlett filed his memorandum in opposition to the Motion (\"Response”) (Doc. 15) on December 11, 2006 and Deere filed its reply (Doc. 16) on December 18, 2006. . Because the Debtor’s bankruptcy case was filed before the effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (\"BAPCPA”), generally effective October 17, 2005, all references to the Bankruptcy Code in this opinion are to the pre-BAPCPA version — 11 U.S.C. §§ 101-1330 (2000). See Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8, § 1501(b)(1), 119 Stat. 23, 216 (stating that, unless otherwise provided, the amendments do not apply to cases commenced under title 11 before the effective date of BAPCPA). . DR 5-101(B) provides: (B) A lawyer shall not accept employment in contemplated or pending litigation if the lawyer" }, { "docid": "4574212", "title": "", "text": "debt secured by the tax lien, then a true divestiture would then occur. In addition, Judge Wedoff examines Barnhill v. Johnson, 503 U.S. 393, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992), wherein the Supreme Court found that the date a check is honored, rather than the date a check is tendered, is the date an actual transfer occurs. In re Alanis, 2012 Westlaw 1565355, at *3. He concludes, therefore, that “[l]ike a check, the state court turnover order directed payment of the funds in [debtor’s] bank accounts to [judgment creditor], but until that order was served on the bank and the bank complied with the order, thus ‘charging’ the accounts, the funds in the accounts continued to belong to [debtor] and became property of her bankruptcy estate upon the filing of her bankruptcy case.” Id. This court finds Judge Wedoffs reasoning to be compelling, especially in light of the lack of clear direction from the Illinois state courts. The facts in this matter make clear that, despite the service of the Turnover Order on Merrill Lynch, the funds in question continue in the custodianship of Merrill Lynch. As with a check that is never cleared, a turnover order for which no prepetition turnover was in fact effectuated does not constitute a transfer for the purposes of defeating the application of section 541 of the Bankruptcy Code. The court therefore rejects EEI’s contention with respect to the effect of the Turnover Order. The Debtor’s ownership rights in its property in the possession of Merrill Lynch continued on the Petition Date and that property became property of the Debtor’s bankruptcy estate, subject to the liens discussed above. (2) Setoff Unlike the foregoing issue, the law with respect to prepetition setoff is clear. EEI argues that funds received by EEI as a result of royalty payments owed to Debtor but collected by EEI have been set off against the Judgment, and thus “never became the property of [the Debtor], and are not property of the bankruptcy estate.” To the extent that a creditor sets off a prepetition debt against a prepetition obligation prior" }, { "docid": "10212300", "title": "", "text": "Gioiosos transferred funds from their business and personal accounts to other accounts and to their relatives. In the midst of the contract action, the Gioio-sos filed a petition for relief pursuant to Chapter 7 of the Bankruptcy Code, 11 U.S.C. § 701 et seq. Stuebben responded by commencing an adversary proceeding in the bankruptcy case, requesting that the bankruptcy court deny the debtors (the Gioiosos) discharge. Pursuant to § 727, a court shall grant a debtor a discharge unless the debtor has acted deceptively with respect to property transfers, records, court filings, or explanations as to property loss. 11 U.S.C. § 727(a)(2)-(5). The bankruptcy court resolved the adversary proceeding in Stueb-ben’s favor, determining that each subsection of 11 U.S.C. § 727(a)(2)-(5) warranted denial of discharge. In the course of its opinion denying discharge, the bankruptcy court concluded that the debtors had committed various wrongs. The following excerpts are indicative of the court’s findings. [Tjhere is testimony given by one (or both) debtors to the effect that the initial transfers were accomplished specifically to hinder, delay, or prevent [Stuebben] from obtaining assets of the later created estate.... This court finds the evidence offered through use of deposition testimony given [by the debtors] close in time to the events complained of to be more credible than the certifications now relied upon by the debtors.... The facts are such that the earlier testimony regarding the funds is the only credible testimony. ... The series of transfers unearthed by [Stuebben] and not disclosed by the debtors is sufficient proof of debtors’ intent to defraud.... ... [T]he debtors knowingly and fraudulently failed to disclose information material to this case, and, in so doing, knowingly and fraudulently uttered a false oath and account when their Schedules and Statement were submitted.... [In determining the debtors’ failure to adequately explain their loss or deficiency of assets], the court is again struck by the discrepancies appearing between sworn testimony taken near in time to the loss and the sworn statements offered in opposition to this motion [for summary judgment]. Even if those discrepancies did not exist and the sworn" }, { "docid": "11163357", "title": "", "text": "the claim entitling them to relief. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Specifically, the motion asks the Court to rule as a matter of law that the second cause of action in the Complaint, as it relates to two of the many transfers, is barred by the applicable statute of limitations. The first transfer at issue is evidenced by a check dated July 30, 2001 from Metropolitan Mortgage & Securities Co., Inc. payable to Ms. Sandifur in the amount of $450,000. The notation on the Metropolitan’s records refers to the transfer of “Div-Partial Redemption of Stock National Summit Corp.” The check cleared the bank on August 2, 2001. The second transfer at issue is evidenced by a check dated February 11, 2002, from an affiliate of the debtor corporations. The check was payable to Ms. Sandifur in the amount of $1,620,000. The notation in the debtor corporations’ records states “I/C Repurchase of Common Shares.” The Complaint does not state when the check was honored by the issuing bank. When a transfer of funds occurs by check, the date that the check was honored by the bank is the date the transfer occurred. Barnhill v. Johnson, 503 U.S. 393, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992). For the purpose of the Court’s analysis, the Court will assume that the second transfer occurred on February 11, 2002, the earliest possible date of transfer. The debtor corporations allege that the two transfers are avoidable under 11 U.S.C. § 544(b), which is commonly referred to as the trustee’s “strong arm powers.” A Chapter 11 debtor shares these powers with the Chapter 7 Trustee by virtue of 11 U.S.C. § 1107(a). Under §§ 544(b) and 1107(a), a Chapter 11 debt- or, like a Chapter 7 Trustee, is granted the same rights as a creditor to set aside transfers under applicable non-bankruptcy law. Here, the relevant non-bankruptcy law is Wash. Rev. Code § 19.40, et. seq., Washington’s codification of the Uniform Fraudulent Transfer Act. Specifically, in their second cause of action, the debtor corporations allege recovery under RCW 19.40.041(a)(2)" }, { "docid": "21977537", "title": "", "text": "relevant documents. Upon this record the Court is unable to determine if the Chapter 13 Trustee can rightfully exercise her strong-arm powers as a bona fide purchaser under 11 U.S.C. § 544(a)(3). Therefore, for the reasons stated, the Motion for Summary Judgment filed by the Chapter 13 Trustee and the Debtor, Larry E. Wagner and the cross Motion of Defendant, Chris-tiana Bank & Trust Company, for Sum mary Judgment Pursuant to F.R.B.P. 7056, are denied. An appropriate order will be entered. ORDER OF COURT AND NOW, this 5th day of September, 2006, for the reasons expressed in the Memorandum Opinion of even date, it is hereby ORDERED, ADJUDGED and DECREED that the Motion of Defendant Christiana Bank & Trust Company for Summary Judgment Pursuant to F.R.B.P. 7056 and the Motion for Summary Judgment filed by the Debtor, Larry E. Wagner, as joined by the Chapter 13 Trustee, are DENIED. It is FURTHER ORDERED that a status conference on the issues remaining for purpose of trial is scheduled for October 4, 2006 at 2:30 P.M. in Courtroom D, 54th floor, U.S. Steel Tower, 600 Grant Street, Pittsburgh, PA. . Unless otherwise indicated, all references in this Opinion are to the United States Bankruptcy Code, Title 11, 11 U.S.C. § 101, et seq. as it existed prior to October 17, 2005, the effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), P.L. 109-8, § 256, 119 Stat. 23, 11 U.S.C. § 101 et seq. . The Bank also claimed that any defect in the Mortgage has been remedied by the most recent curative statute periodically enacted by the Pennsylvania legislature in recognition of the modern trend in dealing with similar types of acknowledgment errors found in recorded documents. However, 21 P.S. § 281.1, the statute upon which the Bank relies, was enacted on July 5, 2005, effective September 6, 2005. Because the effective date of this statute occurred after the November 9, 2004 filing date of this bankruptcy, the enactment of this curative statute is not relevant to the matters at issue. . § 541. Property of" }, { "docid": "3275493", "title": "", "text": "MEMORANDUM OPINION DENNIS R. DOW, UNITED STATES BANKRUPTCY JUDGE Before this Court is the Motion for Summary Judgment (the “Motion”) filed by LVNV Funding, LLC (“LVNV”) and Resurgent Capital Services, L.P. (the “Defendants”) against William Steven Dunaway and Cynthia Ann Dunaway (the “Debtors”). Also before the Court is Debtors’ Motion for Summary Judgment. Both parties filed Suggestions in Support of their motions and Suggestions in Opposition to the opposing parties’ motions. The Plaintiff initiated the adversary proceeding seeking a right to recover actual and statutory damages, costs and attorney’s fees from Defendants for violation of the Fair Debt Collections Practices Act, 15 U.S.C. § 1692 et seq. (the “FDCPA”). In accordance with Rule 7056 of the Federal Rules of Bankruptcy Procedure and for the reasons set forth below, the Court grants the Defendants’ Motion and denies Debtors’ Motion. I. FACTUAL BACKGROUND The following facts are undisputed. Debtors filed for Chapter 13 bankruptcy on March 31, 2014. LVNV was listed on Debtors’ Schedule F and creditor matrix. On July 25, 2014, Defendants filed a proof of claim on behalf of LVNV. The Claim lists an unsecured amount of $6,206.92. The attachment to the Claim lists First USA Bank, N.A. as the creditor from whom LVNV purchased the account. The attachment also states that the account was charged off by the original creditor on 05/05/2000, the last payment date was 8/19/1999, and the last transaction date was 8/19/1999. On October 14, 2014, Debtors filed an objection to the Claim. On October 16, Debtors amended the objection and filed an adversary proceeding against Defendants. On November 19, 2014, the Court granted the amended objection to the Claim. II. LEGAL ANALYSIS A. Standard for Summary Judgment Bankruptcy Rule 7056, applying Federal Rule of Civil Procedure 56(c), provides that summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” See Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548," }, { "docid": "18317123", "title": "", "text": "in the ordinary course of business or financial affairs of the debtor and the transferee; and (C) made according to ordinary business terms. 11 U.S.C. § 547(c)(2). .SCB provided invoices and copies of proofs of payment relevant to the April, May, and June 2003 Transfers only. The is no documentation relevant to the other twelve Transfers at issue, including that which is dated September 6, 2003, discussed supra. . The record is unclear as to the basis of that claim. . Federal Rule of Civil Procedure 56 is made applicable to adversary proceedings through Federal Rule of Bankruptcy Procedure 7056. . SCB bears the burden of proof as to its affirmative defenses under § 547(c). 11 U.S.C. § 547(g). . It is worth noting that while the insider of an affiliate of a debtor is a per se insider of the debtor, the Code does not assign insider status, per se, to the insider of an insider of a debtor. . The Trustee has filed a similar complaint against Stockard, seeking to recover an alleged preferential transfer that he received from the Debtor, which was for the repayment of a $99,990.00 loan that Stockard had personally advanced to the Debtor during the insider preference period. See Tomsic v. Stockard (In re Salience), 371 B.R. 571, 2007 WL 1893597 (Bankr.D.Mass.2007), A.P. No. 05-4171. In this parallel adversary proceeding, Stockard does not dispute that he is, as the president of the Debtor at all times relevant to both of these adversary proceedings, an insider of the Debtor. . The Trustee’s claims against Stockard, which were also brought under § 547(b), and his motion for summary judgment in response thereto, have been addressed by this Court in its Memorandum of Decision supporting the denial of that motion in Tomsic v. Stockard (In re Salience Associates, Inc.), 371 B.R. 571, 2007 WL 1893597, (Bankr.D.Mass. July 3, 2007). The Court incorporates herein its rulings and the reasoning made there with respect to SCB’s Contemporaneous Exchange and Ordinary Course of Business defenses made here; however, where the rationale may vary or require a more thorough analysis," }, { "docid": "4590805", "title": "", "text": "consistent with this opinion. . Richardson had originally been the trustee of both bankruptcy estates. However, in August 2007, the United States Trustee replaced Richardson with Meoli as the Teleservices trustee. . 11 U.S.C. §§ 101, et seq. Debtor’s petition pre-dates the October 17, 2005 effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (\"BAPCPA”), Pub.L. No. 109-8, § 1501(b)(1), 119 Stat. 23. Unless otherwise indicated, all citations in this opinion to the Bankruptcy Code will be to the Bankruptcy Code as written prior to the BAPCPA amendments. . The Cyberco complaint originally included ten counts against Huntington. However, four counts were voluntarily dismissed, including a count alleging that Huntington had aided and abetted fraud. This court also dismissed on motion four other counts, including counts alleging unjust enrichment and fraudulent transfer. Consequently, the only counts that remain in the Cyberco complaint are the counts related to alleged preferences received by Huntington from Cyberco. . Cf. 11 U.S.C. §§ 548 and 550(a)(2). . See, e.g., Union Savings Bank v. Augie/Restivo Baking Co. (In re Augie/Restivo Baking Co.), 860 F.2d 515, 518 (2nd Cir.1988) (citing 5 Collier on Bankruptcy § 1100.06, at 1100-32 n. 1 (L. King ed., 15th ed.1988)). . Huntington’s Post-Trial Brief in Support of Substantive Consolidation at 12-13, In re Teleservices Group, Inc., No. 05-00690 [DN 317] (Bankr.W.D.Mich. Jan. 21, 2005), In re Cyberco Holdings, Inc., No. 04-14905 [DN 1187] (Bankr.W.D.Mich. Dec. 9, 2004) (hereinafter \"Def. Post-Hr’g Br.”). . The adversary proceedings to recover the fraudulent transfers and the two consolidation motions were combined under Fed. R. BankrP. 7042 because they appeared at that time to share a common issue — to wit, whether Huntington’s own dealings with Cyberco and Teleservices negated both its good faith defenses to the fraudulent transfer action and its ability to seek substantive consolidation under the two motions. The trial of the adversary proceeding was then bifurcated so that only some of the issues related to the fraudulent transfer action, including whether Huntington had acted in good faith, would be tried together with the two substantive consolidation motions. The" }, { "docid": "11163358", "title": "", "text": "When a transfer of funds occurs by check, the date that the check was honored by the bank is the date the transfer occurred. Barnhill v. Johnson, 503 U.S. 393, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992). For the purpose of the Court’s analysis, the Court will assume that the second transfer occurred on February 11, 2002, the earliest possible date of transfer. The debtor corporations allege that the two transfers are avoidable under 11 U.S.C. § 544(b), which is commonly referred to as the trustee’s “strong arm powers.” A Chapter 11 debtor shares these powers with the Chapter 7 Trustee by virtue of 11 U.S.C. § 1107(a). Under §§ 544(b) and 1107(a), a Chapter 11 debt- or, like a Chapter 7 Trustee, is granted the same rights as a creditor to set aside transfers under applicable non-bankruptcy law. Here, the relevant non-bankruptcy law is Wash. Rev. Code § 19.40, et. seq., Washington’s codification of the Uniform Fraudulent Transfer Act. Specifically, in their second cause of action, the debtor corporations allege recovery under RCW 19.40.041(a)(2) and 19.40.051(a). Causes of action under these two statutory provisions are limited by RCW 19.40.091(b) which states that any cause of action based upon RCW 19.40.041(a)(2) or .051(a) is extinguished “within four years after the transfer was made.” Thus, the applicable non-bankruptcy law, upon which the debtor corporations rely, contains a four-year statute of limitations measured from the date of the transfer. In this case, the transfers occurred on August 2, 2001 and February 11, 2002. To be timely, actions based upon RCW 19.40.041(a)(2) or .051(a) must have been brought before August 2, 2005, as to the first transfer, and before February 11, 2006, as to the second transfer. The debt- or corporations’ lawsuit against Ms. Sandi-fur was commenced on February 2, 2006, the date on which it was filed. Fed. R. Bankr.P. 7003. According to state law, the cause of action seeking to set aside the August 2, 2001 transfer extinguished before the lawsuit was commenced. Conversely, the cause of action based upon the February 11, 2006 transfer was timely. The debtor corporations’ second" }, { "docid": "5153258", "title": "", "text": "the Bankruptcy Code. On August 25, 2006, the trustee commenced an adversary proceeding against MBNA to avoid and recover, among other transfers, the amount of the two $5,000 convenience checks Wells wrote from her Chase Bank account to her MBNA account. The trustee filed a motion for summary judgment arguing that these were preferential transfers within the provisions of § 547(b). The bankruptcy court granted the trustee’s motion and on April 19, 2007, entered a judgment against MBNA in the amount of $10,816.00, which included other transfers that are not at issue in this appeal. MBNA then appealed the bankruptcy court’s judgment to the Bankruptcy Appellate Panel which in turn affirmed the bankruptcy court’s decision. MBNA now appeals to this court. II. On appeal from a bankruptcy court’s decision granting summary judgment, we review the bankruptcy court’s factual findings for clear error and its legal conclusions de novo. In re Cannon, 277 F.3d 838, 849 (6th Cir.2002). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials and affidavits show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The section of the Bankruptcy Code that grants a bankruptcy trustee the authority to initiate proceedings seeking to set aside preferential transfers is 11 U.S.C. § 547(b). Specifically, § 547(b) states: Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property— (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made— (A) on or within 90 days before the date of the filing of the petition; or (B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and (5) that enables" }, { "docid": "18317098", "title": "", "text": "exchange for a fee, which was calculated as a percentage of the annual salary of the placed employee. The Debtor also sublet a portion of its office space in Andover, Massachusetts to SCB. The Debtor filed the instant Chapter 7 bankruptcy case on July 14, 2003. During the one-year period prior to the date of case commencement, the following transfers were made from the Debtor to SCB (collectively, the “Transfers”): 1. $7,000.00 on July 29, 2002 2. $2,000.00 on September 3, 2002 3. $30,000.00 on November 1, 2002 4. $18,000.00 on November 1, 2002 5. $6,250.00 on December 31, 2002 6. $12,500.00 on January 2, 2003 7. $20,000.00 on January 13, 2003 8. $18,125.00 on January 21, 2003 9. $3,125.00 on February 11, 2003 10. $42,600.00 on March 10, 2003 11. $22,750.00 on April 9, 2003 12. $26,400.00 on April 22, 2003 13. $45,000.00 on May 2, 2003 14. $35,000.00 on June 16, 2003 15. $1,000.00 on September 6, 2003 As part of their sublease arrangement, the Debtor and SCB shared some expenses, such as those related to insurance and the telephone system, for which the Debtor was reimbursed on a monthly basis by SCB. The Trustee claims that the amounts owed to the Debtor for the months of April through July of 2003, including those for rent, were unpaid. SCB disagrees. On July 13, 2005, the Trustee filed the instant complaint, seeking to avoid each of the Transfers and seeking payment for the debts allegedly owed to the Debtor by SCB. After answering, SCB filed its Motion for Summary Judgment, denying all counts of the Trustee’s complaint and setting forth affirmative defenses to the § 547(b) preference claims, relying on § 547(c)(1) and (2). The Trustee filed her opposition to Stockard’s Motion for Sum mary Judgment, but did not append any affidavits or any other evidence in support. After hearing, the matter was taken under advisement. II. POSITIONS OF THE PARTIES A. The Trustee The Trustee maintains that SCB is an “insider” of the Debtor, given the fact that Stockard served as the president of both companies at all" }, { "docid": "19177783", "title": "", "text": "parties have adequately identified and addressed the issues in the written briefs. Because oral argument is not likely to assist the court materially, the intervenor’s request is denied. The relevant facts are not disputed. The debtor issued a check on May 29, 1992, to State Farm in the amount of $2,500 in payment of a loan against his life insurance policy. State Farm received the check on June 2, 1992. The check did not clear the debtor’s credit union until June 3, 1992. The debtor filed for bankruptcy on June 2, 1992, the day before the check was honored by the drawee credit union. The plaintiff Wittman was appointed trustee for the bankruptcy estate. He filed this adversary action against State Farm seeking to recover this check payment pursuant to 11 U.S.C. § 549. State Farm answered but did not actively defend the action leaving that to the debtor who had intervened. In response to the trustee’s motion for summary judgment, the debtor agreed the facts were undisputed and asked the bankruptcy court to decide the issues as a matter of law. In relevant part, § 549 provides: (a) Except as provided in subsection (b) or (c) of this section, the trustee may avoid a transfer of property of the estate— (1) that occurs after the commencement of the case; and (2)(A) that is authorized only under section 303(f) or 542(c) of this title; or (B) that is not authorized under this title or by the court. Section 549(a) authorizes, subject to the exceptions in subsections (b) and (c), a trustee’s avoidance of a (1) transfer of, (2) property of the estate, (3) occurring after the bankruptcy petition is filed, if (4) the transfer is authorized only under §§ 303(f) or 542(c) or is not authorized by the Bankruptcy Code or by the court. The bankruptcy court found that the debt- or’s credit union account became property of the estate upon the debtor filing for bankruptcy. The court relied on Barnhill v. Johnson, 503 U.S. 393, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992), in holding that the transfer occurred postpetition" }, { "docid": "2651218", "title": "", "text": "hardship test. An appropriate Order will be entered. ORDER OF COURT AND NOW, this 25th day of April, 2007, for the reasons expressed in the accompanying Memorandum Opinion entered this date, it is hereby ORDERED, ADJUDGED and DECREED that the Defendant’s Motion for Summary Judgment filed by the Defendant, U.S. Department of Education Borrower Services Department Direct Loans, is GRANTED and the adversary proceeding filed by the Debtor, Anthony Robert Fabrizio, is DISMISSED, with prejudice. . This Court's jurisdiction was not at issue. . Joint Statement of Material Facts, Document No. 25. . See Hearing Ex. B. .From 2004-2006, the Debtor was employed with ArriveTech, Inc. in the capacity of Senior Account Executive/Director of Marketing with an annual salary of $37,000. From 2002-2004, he was employed with the Manufacturers' Association of Northwest Pennsylvania as a manager of member services with a commensurate annual salary of $40,000. From 1998-2002, the Debtor was employed with John V. Schultz furniture and outlet company as manager with an annual salary of $30,000. While employed from 1996-1998 as a car sales consultant, he made approximately $30,000 in commission-based salary. From 1992-1996, the Debtor was employed as a car sales consultant from with two different companies and from 1988-1992 as a bar supervisor. No corresponding salaries are indicated in the record for these last positions. . Document No. 27, Hearing Ex. A. . Unless otherwise indicated, all references in this Opinion are to the United States Bankruptcy Code, Title 11,11 U.S.C. § 101, et seq. as it existed prior to October 17, 2005, the effective date of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), P.L. 109-8, § 256, 119 Stat. 23, 11 U.S.C.§ 101 etseq. . Nine circuit courts of appeal have followed the Brunner test with respect to determining whether a debtor has proven undue hardship for purposes of a 5 523(a)(8) discharge. State University New York-Student Loan Service Center v. Menezes, 352 B.R. 8 (D.Mass. 2006). . At the very least, the $279.02 payment would reduce accumulating interest. Unfortunately, the Court is unable to even make this determination on the" }, { "docid": "6634473", "title": "", "text": "issued to the Debtor’s son, Oliver Moeritz, on November 21, 2002. (UST’s Exhibit 4). The Debtor testified, however, that he purchased the vehicle for his own use in connection with his occupation as a realtor, and that he was in possession of the car. (Transcript, pp. 27, 38-39, 43, 47). One month after the purchase of the Toyota, on December 20, 2002, the Debtor filed his petition under chapter 7 of the Bankruptcy Code. On his “Schedule B— Personal Property,” the Debtor represented that he owned no bank accounts or other financial accounts, no interest in any business, and no vehicles. Additionally, on his Statement of Financial Affairs, the Debtor represented that he had made no gifts or other transfers within the one-year period prior to the filing of the petition, and that he had owned no interest in any business within the six-year period prior to the bankruptcy. The Schedules and Statement of Financial Affairs were signed on December 18, 2002. On March 24, 2003, the UST filed a Complaint Objecting to the Entry of the Debtor’s Discharge. (Doc. 1). In the Complaint, the UST requested that the Court deny the Debtor’s discharge pursuant to § 727(a)(2)(A), § 727(a)(2)(B), § 727(a)(4)(A), and § 727(a)(4)(D) of the Bankruptcy Code. In May and June of 2003, approximately two months after the Complaint was filed, the Debtor paid the total sum of $23,912.00 to the Chapter 7 Trustee. The amount paid to the Trustee represents the amount transferred to the Ohio Account in October and November of 2002, as well as the nonexempt portion of the personal property scheduled by the Debtor. The Debtor’s chapter 7 case has been fully administered, dividends have been disbursed to creditors, and the Chapter 7 Trustee has filed her Final Account. Discussion Section 727(a) of the Bankruptcy Code provides in part: 11 U.S.C. § 727. Discharge (a) The court shall grant the debtor a discharge, unless— (2) the debtor, with intent to hinder, delay, or defraud a creditor or an officer of the estate charged with custody of property under this title, has transferred, removed, destroyed," }, { "docid": "20620825", "title": "", "text": "order had not yet been served on the bank. Id. at *3 (finding that “if [the debtor] had paid the judgment before the order was served, the funds would have retained their status as [the debtor’s] property, no longer subject to [the creditor’s] lien”). The court found support for its conclusion in Barnhill v. Johnson, in which the United States Supreme Court decided that, in a preference context, the date a check is honored, rather than the date it is tendered, is the date an actual transfer occurs: [N]o transfer of any part of the debtor’s claim against the bank occurred until the bank honored the check ... [at which time,] the bank had a right to “charge” the debtor’s account ... and [the creditor] no longer had a claim against the debtor. Honoring the check, in short, left the debtor in the position that it would have occupied if it had withdrawn cash from its account and handed it over to [the creditor]. We thus believe that when the debtor has directed the drawee bank to honor the check and the bank has done so, the debtor has implemented a “mode, direct or indirect ... of disposing ... of property or ... an interest in property.” 11 U.S.C. § 101(54) (1988 ed., Supp. II) (emphasis added). For the purposes of payment by ordinary check, therefore, a “transfer” as defined by § 101(54) occurs on the date of honor, and not before. 503 U.S. 393, 399-400, 112 S.Ct. 1386, 118 L.Ed.2d 39 (1992). Thus, the court in Alanis found that, until the bank complied with the turnover order that would then charge the debtor’s bank accounts, the funds in the accounts continued to belong to the debtor and became part of the debt- or’s estate upon the filing of the bankruptcy case. Alanis, 2012 WL 1565355, at *3. The Quade court echoed the reasoning in Alanis. In Quade, a creditor obtained a pre-petition judgment against a debtor and served both citations to discover assets on the debtor (and three corporations in which he was an officer, director, and shareholder) and" } ]

[ { "docid": "22204836", "title": "", "text": "100 months of imprisonment and three years of supervised release. II. STANDARD OF REVIEW We review de novo the scope of constitutional rights. United States v. Mills, 138 F.3d 928, 937 (11th Cir.1998). We review de novo the application by the district court of law to facts. United States v. Cover, 199 F.3d 1270, 1274 (11th Cir.2000). We review de novo constitutional challenges to a sentence. United States v. Lyons, 403 F.3d 1248, 1250 (11th Cir.2005). III. DISCUSSION Our discussion of this appeal is divided into four parts. First, we address Cantel-lano’s argument that admission of the warrant of deportation violated his right to confrontation under Crawford. Second, we address Cantellano’s argument that consideration of hearsay evidence at sentencing violated his right to confrontation under Crawford. Third, we address Can-tellano’s argument that Shepard restricts a sentencing court from considering sources other than court records to identify a defendant with prior convictions. Fourth, we address Cantellano’s argument that the use of prior convictions that were neither charged in the indictment nor proved to a jury violated his right to a jury trial under the Sixth Amendment. We reject each argument. A. The Warrant of Deportation Was Not Testimonial. The Sixth Amendment to the United States Constitution says, “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” In Crawford v. Washington, the Supreme Court explained that the founding generation understood the right to confrontation in the light of the common-law tradition of “live testimony in court subject to adversarial testing.” 541 U.S. at 43, 124 S.Ct. at 1359. The common-law tradition of confronting one’s accusers in court recognized that ex parte testimony raised issues of justice and fairness. Because testimony is accusatory and delivered in contemplation of criminal proceedings, it is adversarial. An accused, therefore, should have the opportunity to confront adverse witnesses face-to-face. See generally id. at 43-45, 124 S.Ct. at 1359-1360. Cantellano argues that, under the Confrontation Clause of the Sixth Amendment as construed in Crawford, he had the right to confront the government agent who witnessed Cantellano leave the" } ]

[ { "docid": "4469259", "title": "", "text": "that, after Hall’s disappearance, Ousley asked Thompson whether he knew “where to get either money or cocaine” for two of Hall’s rings. When Thompson asked Ousley where the rings came from, Ousley responded that “him [Ousley] and Jeff [Ferguson] did a job in St. Charles” and that “Jeff had a third ring.” The trial court overruled Ferguson’s objection that this testimony was inadmissible hearsay. Citing only state cases, the Supreme Court of Missouri upheld that ruling on the ground that Thompson’s testimony was admissible under the hearsay exception for conspirator statements in furtherance of a conspiracy. 20 S.W.3d at 496-97. In the district court, Ferguson argued that this ruling violated his Confrontation Clause rights as construed in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), and its progeny. The district court ruled that Ousley’s hearsay statements “bear particularized guarantees of trustworthiness,” one test under Roberts, and alternatively that any error was harmless beyond a reasonable doubt. While this appeal was pending, the Supreme Court decided Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which overruled Roberts, at least in part. Crawford held that the Confrontation Clause bars admission of “testimonial” hearsay “unless the de-clarant is unavailable and the defendant had a prior opportunity to cross-examine.” Evans v. Luebbers, 371 F.3d 438, 444 (8th Cir.2004). Ferguson now argues that Ous-ley’s out-of-court statements were “testimonial” and therefore barred by Crawford ’s new categorical rule. In Craivford, the Court gave examples of testimonial hearsay but declined to articulate a comprehensive definition of the term. See 541 U.S. at 54 & n. 10, 124 S.Ct. 1354. We then expanded Ferguson’s certificate of appealability “to include the Sixth Amendment confrontation issue in light of ... Crawford.” However, in a subsequent decision, we held that “co-conspirator statements are nontestimonial.” United States v. Reyes, 362 F.3d 536, 540 n. 4 (8th Cir.), cert. denied — U.S. -, 124 S.Ct. 2926, 159 L.Ed.2d 826 (2004). Ferguson argues that Reyes does not bar his Crawford claim because Ousley’s statements to Thompson were not in furtherance of the conspiracy. That" }, { "docid": "22433755", "title": "", "text": "this commercial setting is lost net profit. On remand, the district court should determine the amount of net profits the legitimate sellers lost as a result of Beydouris actions and limit restitution to that amount. C. Crawford At trial, Officer Hudson testified about his conversations with Beydoun’s co-conspirator, Braeamonte, and the print shop owner regarding the number of booklets printed, repackaged, and sent to Beydoun. The court relied on this testimony to establish the number of counterfeit goods for both sentencing and restitution purposes. Beydoun asserts that, because the Guidelines calculation of infringement amount involves fact-bound determinations capable of increasing his sentence, the court’s reliance on hearsay testimony violated his right of confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Crawford concerned testimonial hearsay that was introduced at trial; unaddressed by Crawford is whether the Sixth Amendment right to confront witnesses applies similarly at sentencing. This court’s pre-Craw-ford precedent rejected a confrontation right at sentencing. See United States v. Navarro, 169 F.3d 228 (5th Cir.1999). Two unpublished opinions held that Crawford does not extend a defendant’s rights under the Confrontation Clause to sentencing proceedings. See United States v. Leatch, 111 Fed.Appx. 770 (5th Cir.2004)(unpublished); United States v. Salas, 182 Fed.Appx. 282 (5th Cir.2006) (unpublished). Although this court’s unpublished opinions are not precedential, their position on this issue comports with that of the majority of our sister circuits. See, e.g., United States v. Katzopoulos, 437 F.3d 569, 576 (6th Cir.2006); United States v. Luciano, 414 F.3d 174, 179 (1st Cir.2005); United States v. Martinez, 413 F.3d 239, 243-44 (2d Cir.2005); United States v. Roche, 415 F.3d 614, 618 (7th Cir.2005); United States v. Chau, 426 F.3d 1318, 1323 (11th Cir.2005). Following these authorities, we conclude that there is no Crawford violation when hearsay testimony is used at sentencing, rather than at trial. D. Registration For the first time on appeal, Beydoun argues that the Zig-Zag booklets did not bear an “®” symbol or state “Reg. U.S. Pat.,” as required for recovery of damages or restitution. See 15 U.S.C. § 1111, 18 U.S.C. § 2320(c)." }, { "docid": "13493814", "title": "", "text": "these abuses undermined his due process rights. None of these largely conclusory allegations convince us to disturb the jury’s verdict. Viewed in the light most favorable to the government, a rational juror could draw the conclusion from this evidence that Patterson was involved in a conspiracy to distribute cocaine. C. Confrontation Clause Patterson next raises a challenge under the Confrontation Clause to two statements from Smart and Bradley admitted at trial. As noted above, these witnesses testified that Redd told them Patterson was involved in the drug conspiracy. Patterson argues that the admission of such testimony violates principles established by the Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Crawford, the Supreme Court held that the Sixth Amendment precluded the admission of out-of-court statements that are testimonial, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. In Bruton, the Court held that it would violate the Confrontation Clause to allow the confession of a non-testifying co-defendant that implicated the defendant to be used against that defendant. The admission of these two statements violated neither Crawford nor Bruton because both statements were made in furtherance of a conspiracy and were therefore nontestimonial. First, as we explained above, there was sufficient evidence presented at the James hearing to establish the basis for the admission of co-conspirator statements under this exception to the hearsay rule. Second, the statements at issue here, which related to concerns about how to finance the conspiracy and identify the members of the conspiracy, were made “in furtherance of the conspiracy” for purposes of this hearsay exception. See United States v. Roberts, 14 F.3d 502, 515 (10th Cir.1993) (“Statements made ... to keep co-conspirators abreast of an ongoing conspiracy’s activities satisfy the ‘in furtherance’ ... requirement [under Rule 801(d)(2)(E) ].”) (quoting United States v. Yarbrough, 852 F.2d 1522, 1535-36 (9th Cir.), cert. denied, 488 U.S. 866, 109 S.Ct. 171, 102 L.Ed.2d 140 (1988)). Third, because these statements were" }, { "docid": "19334324", "title": "", "text": "in furtherance of, the conspiracy. In accordance with the procedure set forth in United States v. Bell, 573 F.2d 1040, 1044 (8th Cir.1978), the district court subsequently determined that the government established the existence of a conspiracy by a preponderance of independent evidence. Based on this determination, the district court allowed the challenged testimony to stand. Bruton held generally that the admission of an incriminating statement by non-testifying co-defendant at a joint trial violates the defendant’s rights under the Confrontation Clause. Bruton, 391 U.S. at 137, 88 S.Ct. 1620. Bruton, however, does not preclude the admission of otherwise admissible statements by a co-conspirator under Rule 801(d)(2)(E). See United States v. Mickelson, 378 F.3d 810, 819 (8th Cir.2004) (“However, when the statements are those of a co-conspirator and are admissible under Federal Rule of Evidence 801(d)(2)(E), the Sixth Amendment and Bruton are not implicated.”). Further, our court has held that co-conspirators’ statements made in furtherance of a conspiracy and admitted under Rule 801(d)(2)(E) are generally non-testimonial and, therefore, do not violate the Confrontation Clause as interpreted by the Supreme Court. See Crawford v. Washington, 541 U.S. 36, 51-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (providing examples of statements that are testimonial in nature); see also United States v. Lee, 374 F.3d 637, 644 (8th Cir.2004) (applying Crawford and stating, “In contrast to these examples, casual statements to an acquaintance are not testimonial. Nor are statements to a coconspirator or business records testimonial.”) (internal citation omitted). In the circumstances of the present case, we believe that the district court properly admitted the challenged testimony under Rule 801(d)(2)(E) and that the co-defendants’ out-of-courts statements were not testimonial. Accordingly, there was no violation of the Confrontation Clause and no error in the admission of the challenged testimony. B. Other Hearsay Objections Martin and David challenge as inadmissible hearsay the testimony from Det. Tecklenburg in which Det. Tecklen-burg relayed Carnahan’s prior, out-of-court description of interactions with David. They also challenge the admission of the statement by Pieters that Henry Segovia obtained methamphetamine “from” David. We believe that these challenges have merit. Carnahan’s statement to" }, { "docid": "23618316", "title": "", "text": "must consider all relevant factors, “such as which party supplied the interpreter, whether the interpreter had any motive to mislead or distort, the interpreter’s qualifications and language skill, and whether actions taken subsequent to the conversation were consistent with the statements as translated.” Id. Where the defendant does not object at trial, the reviewing court will hold there is plain error only if the evidence in the record indicates that the district court plainly should not have treated the interpreter as a language conduit. Id. Hieng has not identified anything in the record suggesting that Lim was anything other than a language conduit. The record indicates Lim was a highly competent interpreter. He interpreted not only at the interview in dispute, but also during trial and in private meetings between Hieng and his attorney. There is no indication that Lim had any motive to mistranslate. The district court properly treated Lim as a mere language conduit for Hieng. Under Nazemian, Hieng did not have any constitutional right to confront Lim because the interpreted statements are directly attributable to Hieng. Hieng argues that Nazemian has been overruled by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and its progeny. As a three-judge panel, we are bound by circuit precedent unless the United States Supreme Court or an en banc court of our circuit has “undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc). We now determine whether Crawford and its progeny directly overruled Nazemian or whether the cases are clearly irreconcilable. In Crawford, the Supreme Court held that “testimonial” hearsay statements are not admissible unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination. 541 U.S. at 68, 124 S.Ct. 1354. Crawford overruled Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which had held that hearsay statements are admissible if the court determined that they were sufficiently reliable. See Crawford, 541 U.S. at 61-62, 124" }, { "docid": "16994614", "title": "", "text": "a result, the specific statement set out above was admitted into evidence. We find no error in the district court’s ruling under Rule 801(d)(2)(E), which provides that a statement offered against a party that is made by a co-conspirator during the course of and in furtherance of that conspiracy is admissible as a non-hearsay statement. McMahan was indisputably Mooneyham’s co-conspirator, and the statement in question was clearly made in furtherance of the conspiracy because it was directed at a potentially recurring customer (Agent Williams) with the intention of reassuring him of Mooneyham’s reliability as a supplier. See, e.g., United States v. Salgado, 250 F.3d 438, 449-50 (6th Cir.2001); United States v. Clark, 18 F.3d 1337, 1342 (6th Cir.1994). See also United States v. Swidan, 888 F.2d 1076, 1081 (6th Cir.1989) (co-conspirator statements made to an undercover officer held admissible under Rule 801(d)(2)(E)). There remains the question of admissibility under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), an issue of constitutional dimensions. The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” In Crawford, the Supreme Court announced a new standard for assessing whether hearsay statements, otherwise admissible under principles of evidence, violate the mandate of the Confrontation Clause. Under this rule, “[wjhere testimonial statements are at issue, the only indi-cium of reliability sufficient to satisfy constitutional demands is ... confrontation.” 541 U.S. at 68-69, 124 S.Ct. 1354. In order to introduce testimonial hearsay in a criminal prosecution, the government must demonstrate that the declarant is unavailable to serve as a witness, and that the defendant had a prior opportunity to cross-examine the declarant. See 541 U.S. at 54-55, 124 S.Ct. 1354. The threshold question, then, is whether McMahan’s statement was “testimonial.” In this regard, the proper inquiry is “whether a reasonable person in the declarant’s position would anticipate his statement being used against the accused in investigating and prosecuting the crime.” United States v. Cromer, 389 F.3d 662, 675 (6th Cir.2004). McMahan’s statements were admitted" }, { "docid": "23633059", "title": "", "text": "present at the “morning of’ meeting where guns were present and their use was discussed; he had a longstanding friendship with co-conspirator O’Neal who had participated in previous armed bank robberies; and, it is reasonable to infer from the nature of the plan — the overtaking of a bank by force and intimidation — that guns would be used. See id. at 777 (upholding a conviction under § 924(c) premised on co-conspirator liability where the defendant participated in two meetings at which the robbery was planned, was involved romantically with one of the co-conspirators who had participated in similar armed robberies, and because the nature of the plan, which required the use of force or intimidation to overtake the cash room at a El-Mart, made the use of a gun reasonably foreseeable.). B. Confrontation Clause Claim Relying on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Allen contends that Washington’s statement to O’Neal about whom Washington was recruiting into the conspiracy was inadmissible - hearsay, and its introduction violated Allen’s right of confrontation. Allen cites two instances where Washington’s statement was impermissibly allowed into evidence: O’Neal’s testimony that Wash ington told him he was bringing in his “crew”; and Agent Taglioretti’s testimony that O’Neal told him whom Washington had recruited. Because Allen failed to object to Washington’s statement on Confrontation Clause grounds, we review for plain error. See United States v. Huber, 772 F.2d 585, 588 (9th Cir.1985). Confrontation Clause violations are also subject to harmless error analysis. United States v. Nielsen, 371 F.3d 574, 581 (9th Cir.2004). In Crawford, the Court held that “[w]here testimonial evidence is at issue, ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68, 124 S.Ct. 1354. However, co-conspirator statements are not testimonial and therefore beyond the compass of Crawford’s holding. See id. at 56, 124 S.Ct. 1354 (describing “statements in furtherance of a conspiracy” as “statements that by their nature [are] not testimonial”); see also United States v. Delgado, 401 F.3d 290, 299 (5th Cir.2005); United" }, { "docid": "8237424", "title": "", "text": "to preserve the issue. Accordingly, if there is Confronta tion Clause error, we must apply harmless error review. Nielsen, 371 F.3d at 581. B We turn to the issue of whether the Confrontation Clause was offended by introduction of the statement made by Merke as related by Agent Borden in her testimony. Agent Borden testified that while at first Merke had said that he received nothing more than lunch money, “he said a lot more things” including that he actually had received other money from the Nguyens, including money “that he had taken as a result of selling equipment to them,” but he would not specify the amount. She also testified that “equipment” included probes. The government had previously offered to redact the portion of Merke’s statement where he referenced accepting money from the Nguyens for stolen equipment to avoid any Confrontation Clause related errors, but Merke’s counsel elicited the testimony anyway. Our Confrontation Clause analysis does not change because a co-defendant, as opposed to the prosecutor, elicited the hearsay statement. The Confrontation Clause gives the accused the right “to be confronted with witnesses against him.” U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36, 43, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The fact that Nguyen’s co-counsel elicited the hearsay has no bearing on her right to confront her accusers. See also United States v. Mayfield, 189 F.3d 895, 901 (9th Cir.1999) (finding reversible error where a co-defendant’s counsel elicited hearsay statements in violation of the Confrontation Clause). Only hearsay statements that are testimonial implicate the Confrontation Clause. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. While the Court in Crawford did not comprehensively define testimonial statements, it stated that statements to a police officer during interrogations qualified. Id. at 52, 124 S.Ct. 1354. Merke made his statement during Agent Borden’s interrogation, and we conclude that it was testimonial. This testimonial statement was hearsay. The government argues that Merke’s statement that he had sold the Nguyens scrap metal was admitted to show consciousness of guilt. The testimony, however, was broader and Agent Borden testified that Merke had sold" }, { "docid": "23633060", "title": "", "text": "right of confrontation. Allen cites two instances where Washington’s statement was impermissibly allowed into evidence: O’Neal’s testimony that Wash ington told him he was bringing in his “crew”; and Agent Taglioretti’s testimony that O’Neal told him whom Washington had recruited. Because Allen failed to object to Washington’s statement on Confrontation Clause grounds, we review for plain error. See United States v. Huber, 772 F.2d 585, 588 (9th Cir.1985). Confrontation Clause violations are also subject to harmless error analysis. United States v. Nielsen, 371 F.3d 574, 581 (9th Cir.2004). In Crawford, the Court held that “[w]here testimonial evidence is at issue, ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68, 124 S.Ct. 1354. However, co-conspirator statements are not testimonial and therefore beyond the compass of Crawford’s holding. See id. at 56, 124 S.Ct. 1354 (describing “statements in furtherance of a conspiracy” as “statements that by their nature [are] not testimonial”); see also United States v. Delgado, 401 F.3d 290, 299 (5th Cir.2005); United States v. Rashid, 383 F.3d 769, 777 (8th Cir.2004). Therefore, Washington’s statement to O’Neal, as a statement made in furtherance of the conspiracy, was not testimonial, and its introduction did not violate the Confrontation Clause. Additionally, although O’Neal’s statement to Agent Taglioretti was “testimonial” under Crawford, see Crawford, 541 U.S. at 53, 124 S.Ct. 1354 (holding that statements made to law enforcement “fall squarely within that class” of testimonial hearsay covered by the Sixth Amendment), because O’Neal was available as a witness and cross-examined by Allen, the admission of O’Neal’s out-of-court statement did not violate Allen’s Sixth Amendment rights under Crawford. See id. at 59 n. 9, 124 S.Ct. 1354 (“[W]e reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.”) (citation omitted). Finally, even if the statements complained of were improperly admitted, any error was harmless, as there was overwhelming evidence connecting Allen to the conspiracy. See United States v. Bowman, 215 F.3d 951, 961-62 (9th Cir.2000) (holding" }, { "docid": "22238564", "title": "", "text": "Moran, 759 F.2d 777, 786 (9th Cir.1985); United States v. Rios Ruiz, 579 F.2d 670, 676-77 (1st Cir.1978); see also 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 802.05[3][d] at 802-25 (2d ed.2005) (noting that “a party cannot seriously claim that his or her own statement should be excluded because it was not made under oath or subject to cross-examination”). Next, Brown objects to Dietrechusn Davis’s testimony, which was also offered by the government at the guilt-innocence stage. Davis testified that Sadie Brown (Brown’s mother) received a phone call and said “Meier, where you at? Meier, you didn’t kill that lady, no.” Davis testified that Sadie then started crying, at which point he left. The defendant objected at trial, alleging hearsay and that “I can’t cross examine her.” We review a district court’s hearsay ruling for abuse of discretion. United States v. De La Mata, 266 F.3d 1275, 1300-01 (11th Cir.2001). The district judge overruled the hearsay objection. Although his reasons for doing so are not entirely clear from the record, the statement was an excited utterance and thus subject to a hearsay exception. See Fed.R.Evid. 803(2) (providing a hearsay exception for “[a] statement relating to a startling event or condition made while the declarant was under stress of excitement caused by the event or condition”). The district court did not abuse its discretion in ruling that the statement was admissible. Brown also claims that Davis’s testimony violated his confrontation clause rights and was impermissibly admitted in contravention of the Supreme Court’s recent decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).. In Crawford, the Supreme Court held that testimonial evidence from an absent witness may be admitted only when the witness is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Id. at 68, 124 S.Ct. 1354. The Crawford rule applies only to testimonial evidence. Id.; United States v. Cantellano, 430 F.3d 1142, 1145 (11th Cir.2005), cert. denied, — U.S.-, 126 S.Ct. 1604, — L.Ed.2d-, No. 05-9303 (March 20, 2006) (noting that non-testimonial evidence “is not" }, { "docid": "4469260", "title": "", "text": "36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which overruled Roberts, at least in part. Crawford held that the Confrontation Clause bars admission of “testimonial” hearsay “unless the de-clarant is unavailable and the defendant had a prior opportunity to cross-examine.” Evans v. Luebbers, 371 F.3d 438, 444 (8th Cir.2004). Ferguson now argues that Ous-ley’s out-of-court statements were “testimonial” and therefore barred by Crawford ’s new categorical rule. In Craivford, the Court gave examples of testimonial hearsay but declined to articulate a comprehensive definition of the term. See 541 U.S. at 54 & n. 10, 124 S.Ct. 1354. We then expanded Ferguson’s certificate of appealability “to include the Sixth Amendment confrontation issue in light of ... Crawford.” However, in a subsequent decision, we held that “co-conspirator statements are nontestimonial.” United States v. Reyes, 362 F.3d 536, 540 n. 4 (8th Cir.), cert. denied — U.S. -, 124 S.Ct. 2926, 159 L.Ed.2d 826 (2004). Ferguson argues that Reyes does not bar his Crawford claim because Ousley’s statements to Thompson were not in furtherance of the conspiracy. That assertion is contrary to the facts as found by the Supreme Court of Missouri. It is also irrelevant to the question whether Ousley’s private statements to Thompson were testimonial in nature. See Horton v. Allen, 370 F.3d 75, 84 (1st Cir.2004); United States v. Manfre, 368 F.3d 832, 838 n. 1 (8th Cir.2004). Accordingly, even if applied retroactively to this habeas case, the categorical rule in Crawford does not govern this case because Ousley’s statements were not “testimonial.” Applying the Supreme Court’s pre-Crawford decisions to this nontestimonial hearsay issue, we reject Ferguson’s Confrontation Clause claim for the reasons stated by the Supreme Court of Missouri and by the district court. The Supreme Court’s discussion in Crawford raises some doubt whether the Roberts reliability analysis remains good law when applying the Confrontation Clause to nontestimonial hearsay. See 541 U.S. at 52, 124 S.Ct. 1354 (“Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law.”). But eliminating Roberts reliability review altogether would" }, { "docid": "8237425", "title": "", "text": "the accused the right “to be confronted with witnesses against him.” U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36, 43, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The fact that Nguyen’s co-counsel elicited the hearsay has no bearing on her right to confront her accusers. See also United States v. Mayfield, 189 F.3d 895, 901 (9th Cir.1999) (finding reversible error where a co-defendant’s counsel elicited hearsay statements in violation of the Confrontation Clause). Only hearsay statements that are testimonial implicate the Confrontation Clause. Crawford, 541 U.S. at 68, 124 S.Ct. 1354. While the Court in Crawford did not comprehensively define testimonial statements, it stated that statements to a police officer during interrogations qualified. Id. at 52, 124 S.Ct. 1354. Merke made his statement during Agent Borden’s interrogation, and we conclude that it was testimonial. This testimonial statement was hearsay. The government argues that Merke’s statement that he had sold the Nguyens scrap metal was admitted to show consciousness of guilt. The testimony, however, was broader and Agent Borden testified that Merke had sold the Nguyens medical equipment. This statement does not show Merke’s consciousness of guilt, nor is the statement “obviously false.” See, e.g., United States v. Trala, 386 F.3d 536, 544-45 (3rd Cir.2004) (holding in a case where the government sought to prove bank robbery, conflicting hearsay statements by a co-defendant regarding the origin of the money were admitted to show consciousness of guilt and were “obviously false”). Merke’s statement in which he said that he had received some money from the Nguyens but denied receiving half a million dollars was also not “obviously false.” See id. The government even acknowledged that this statement raised potential Confrontation Clause problems and offered to redact it. The government argues that Merke’s statement was not inculpatory. But this is not controlling on the existence of error. Crawford does not require that a statement inculpate a defendant to trigger error under the Confrontation Clause. Simply, Confrontation Clause error occurs at admission of a testimonial statement without an opportunity to cross-examine. Crawford, 541 U.S. at 68-69, 124 S.Ct. 1354. If the statement" }, { "docid": "420987", "title": "", "text": "Confrontation Clause.” Id. 1. We first consider Palacios’s contention that the district court abused its discretion by admitting the expert testimony of Sergeant Norris. Palacios argues that Norris’s testimony contained inadmissible hearsay and that Norris’s use of such hearsay violated Palacios’s rights under the Confrontation Clause of the Sixth Amendment, as interpreted by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We disagree. Federal Rule of Evidence 703 allows an expert witness to “base an opinion on facts or data in the case that the expert has been made aware of or personally observed.” This includes inadmissible evidence — including hearsay — “[i]f experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject.” Fed.R.Evid. 703; see also United States v. Leeson, 453 F.3d 631, 637 (4th Cir.2006) (holding that a district court did not abuse its discretion by admitting expert testimony based on hearsay when it had been “sufficiently established” that such hearsay statements were the type of information “reasonably relied upon by experts in [the] field”). Under Crawford, testimonial hearsay raises special concerns, however, because it implicates a defendant’s consti tutional rights. See United States v. Johnson, 587 F.3d 625, 635 (4th Cir.2009). Crawford established that the Confrontation Clause bars the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” 541 U.S. at 53-54, 124 S.Ct. 1354. The Supreme Court has not provided a definitive definition of “testimonial,” but a statement “procured with a primary purpose of creating an out-of-court substitute for trial testimony” is the quintessential example of testimonial hearsay. Michigan v. Bryant, — U.S. -, 131 S.Ct. 1143, 1155, 179 L.Ed.2d 93 (2011). Although “Crawford forbids the introduction of testimonial hearsay as evidence in itself,” we have recognized that “it in no way prevents expert witnesses from offering their independent judgments merely because those judgments were in some part informed by their exposure to otherwise inadmissible evidence.” Johnson, 587 F.3d" }, { "docid": "23110781", "title": "", "text": "became more complicated, and Martins and Guastella recruited subordinates to help maintain the illusion that brokers were recommending the investment programs and that the banks were actual financial institutions. Three of these subordinates, Louis Frechette, Roy Thornton, and Marianne Curtis, pled guilty, and their plea allocutions were in troduced at trial as evidence of the existence of the conspiracy. In addition to the plea allocutions, the government’s case at trial rested on the voluminous documentary evidence recovered during searches of Martins’s and Guastella’s residences, including various forged documents used to assure the victims that their “leased” funds were available for investment. Several victims testified, as did Swedish and American banking officials, who established that the banks created by defendants were fictitious. Martins and Guastella were both convicted on all counts and sentenced principally to 135 and 200 months’ imprisonment, respectively. Subsequent to the filing of this appeal but prior to oral argument, the Supreme Court decided Crawford v. Washington, — U.S. —, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which substantially alters the Court’s existing Confrontation Clause jurisprudence. Crawford holds that no prior testimonial statement made by a declarant who does not testify at the trial may be admitted against a defendant unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine him or her. Id. at 1369. We ordered supplemental briefing on the issue of whether Craivford renders the admission of the co-conspirators’ plea allocutions unconstitutional. DISCUSSION Crawford departs from prior Confrontation Clause jurisprudence by establishing a per se bar on the admission of out-of-court testimonial statements made by unavailable declarants where there was no prior opportunity for cross-examination. See id. at 1370. Because the Clause states that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him,” U.S. Const, amend. VI, the right of confrontation extends only to witnesses. Crawford redefines the Court’s Sixth Amendment jurisprudence by holding that the term “witnesses” does not encompass all hearsay declarants, but rather denotes only those who “bear testimony.” Crawford, — U.S. at —, 124 S.Ct." }, { "docid": "23551090", "title": "", "text": "court’s admission of Postal Inspector Gregg’s hearsay evidence at the sentencing hearing, which helped establish the sentencing enhancements, as a violation of his Sixth Amendment right to confrontation. 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The Supreme Court case of Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), provided that hearsay can be admitted into evidence without violating the Confrontation Clause when the statement: (1) falls within a firmly-rooted exception to the hearsay rule, or (2) contains particularized guarantees of trustworthiness such that adversarial testing would be expected to add little, if anything, to the statement’s reliability. See also Lilly v. Virginia, 527 U.S. 116, 124-25, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999); Byrd v. Collins, 209 F.3d 486, 528 (6th Cir.2000). In 2004, the Supreme Court overruled nearly twenty-five years of Ohio v. Roberts precedent finding out-of-court statements which are testimonial in nature to be barred by the Confrontation Clause unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable by the court. See Crawford, 541 U.S. at 59, 124 S.Ct. 1354. According to the Court, the Confrontation Clause’s ultimate goal of ensuring reliability of evidence commands reliability in the criminal setting to be assessed in a particular manner, ie., “by testing in the crucible of cross-examination.” Id. at 61, 124 S.Ct. 1354. The Sixth Amendment right discussed in Crawford concerned testimonial hearsay that was introduced at trial. An issue unaddressed by Crawford is whether the Sixth Amendment right to confront witnesses applies similarly at sentencing. Unlike the Federal Rule of Evidence’s express statement that the rules of evidence do not apply to sentencing hearings, the text of the Sixth Amendment lacks an express limiting clause. Fed.R.Evid. 1101(d)(3)(“The rules... do not apply: sentencing...”). Despite this omission, the answer to this question was well settled pre-Crawford, testimonial hearsay was admissible at sentencing if it bore some minimum indicia of reliability. See United States v. Silverman, 976 F.2d 1502, 1510 (6th Cir.1992)(eTC banc)(“In short, confrontation rights do not apply" }, { "docid": "22797885", "title": "", "text": "either part of the conspiracy or relevant to it. The court stated that it would question whether Chau was entitled to the acceptance of responsibility reduction if he was denying his Mississippi arrest and the facts in that arrest report. For that or some other reason, Chau did not deny the accuracy of the report’s contents. According to the government, the report stated that Chau had mentioned to the FBI agents the recent shooting of a Vietnamese man and explained that he was carrying a gun because it was dangerous in Mississippi. The court found by a preponderance of the evidence that Chau had possessed a gun in connection with drug transactions, that he had carried it for protection while dealing drugs. Chau argued that the indictment had not charged him with any firearm related offense, and therefore the arrest report did not rise to the level of proof necessary to support the enhancement. The court disagreed. Using the guidelines as advice, which it decided to follow, the court sentenced Chau to 57 months incarceration (the bottom of the guidelines range) on each count to be served concurrently and to be followed by 3 years supervised release. II. Chau contends that the use of hearsay at his sentencing hearing violated his Sixth Amendment right of confrontation. He also contends that his Sixth Amendment right to a jury trial was violated when the district court enhanced his sentence using facts that he had not admitted. We review constitutional challenges to a sentence de novo. United States v. Lyons, 403 F.3d 1248, 1250 (11th Cir.2005). A. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. Amend. VI. When testimonial evidence is presented against a defendant at trial, the Sixth Amendment right of confrontation cannot be denied unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004). Chau contends that Crawford, 541 U.S. 36, 124 S.Ct." }, { "docid": "22797886", "title": "", "text": "(the bottom of the guidelines range) on each count to be served concurrently and to be followed by 3 years supervised release. II. Chau contends that the use of hearsay at his sentencing hearing violated his Sixth Amendment right of confrontation. He also contends that his Sixth Amendment right to a jury trial was violated when the district court enhanced his sentence using facts that he had not admitted. We review constitutional challenges to a sentence de novo. United States v. Lyons, 403 F.3d 1248, 1250 (11th Cir.2005). A. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. Amend. VI. When testimonial evidence is presented against a defendant at trial, the Sixth Amendment right of confrontation cannot be denied unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004). Chau contends that Crawford, 541 U.S. 36, 124 S.Ct. 1354, applies to sentencing proceedings as well as trials because a sentencing hearing “is obviously a criminal prosecution.” Appellant’s Br. at 9. He argues that because the district court considered evidence that should have been excluded under the Craiuford decision, it miscalculated his sentence under the guidelines. In the district court Chau made objections on hearsay grounds, but did not mention the Confrontation Clause. Because a hearsay objection does not preserve the Crawford issue, our review is only for plain error. United States v. Luciano, 414 F.3d 174, 178 (1st Cir.2005) (“As Luciano did not raise this Confrontation Clause or Crawford-type claim in the proceedings below — defense objections were framed as hearsay and reliability objections — we review for plain error.”); accord United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 1776-77, 123 L.Ed.2d 508 (1993). As the name suggests, any plain error must be “plain.” United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir.2003). “At a minimum, court[s] of appeals cannot correct an error pursuant to Rule 52(b) [permitting plain" }, { "docid": "22204841", "title": "", "text": "in distinguishing pre-trial rights, explicitly has said that “the right to confrontation is a trial right,” Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S.Ct. 989, 999, 94 L.Ed.2d 40 (1987), and we repeatedly have concluded that a district court may use reliable hearsay at sentencing. See United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir.2001); see also United States v. Wilson, 183 F.3d 1291, 1301 (11th Cir.1999); United States v. Castellanos, 904 F.2d 1490, 1495 (11th Cir.1990). Nothing in Crawford requires a different result. Our sister circuits have reached the same conclusion. The First Circuit explicitly has said “Crawford does not apply to sentencing,” United States v. Monteiro, 417 F.3d 208, 215 (1st Cir.2005), and the Second Circuit has stated Crawford provides no basis to reconsider Supreme Court precedent establishing the permissibility “of out-of-court statements at sentencing.” United States v. Martinez, 413 F.3d 239, 243 (2d Cir.2005). The Fifth, Sixth, Seventh, Eighth, and Tenth Circuits also have recognized that the right to confrontation does not apply to sentencing. See United States v. Navarro, 169 F.3d 228, 236 (5th Cir.1999); United States v. Kirby, 418 F.3d 621, 627-28 (6th Cir.2005); Szabo v. Walls, 313 F.3d 392, 398 (7th Cir.2002); United States v. Fleck, 413 F.3d 883, 894 (8th Cir.2005); United States v. Powell, 973 F.2d 885, 893 (10th Cir.1992). Crawford dealt with trial rights and we see no reason to extend Craioford to sentencing proceedings. The right to confrontation is not a sentencing right. The sentencing court did not err, under Crawford, when it considered hearsay evidence to prove Cantellano’s prior convictions. C. Shepard Does Not Bar Evidence at Sentencing Regarding the Fact of Prior Convictions. Cantellano next argues that the district court erred when it used presentence reports and fingerprint records to link him to California state court documents that established the previous felonies used to enhance his sentence. In Cantellano’s words, the district court “went beyond the facts laid out in the charging documents and court minutes .... [and] used presentence reports to find connections between those documents and the fingerprints from the Department of Corrections ..." }, { "docid": "6108113", "title": "", "text": "TV. Admission of Hearsay Statements in Violation of the Sixth Amendment Delgado next argues that the district court improperly restricted his Sixth Amendment right to confront witnesses against him by admitting the testimony of Michael Martinez, which contained hearsay statements by co-conspirators. “Alleged violations of the Confrontation Clause are reviewed de novo, but are subject to a harmless error analysis.” United States v. Bell, 367 F.3d 452, 465 (5th Cir.2004). Delgado cites Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Under Crawford, ex parte testimonial statements, which may include affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or police interrogations, id. at 1364, are categorically inadmissible. Id. at 1374. Once again, Delgado fails to point to any specific statements he claims were improperly admitted. A review of the record shows that the testimony of Michael Martinez to which Delgado had a “running objection” at trial was testimony that contained hearsay statements made during the course of and in furtherance of a conspiracy and was therefore admissible under Federal Rule of Evidence 801. Michael Martinez testified as to statements given by fellow TMM members regarding the sale of drugs, the collection and safekeeping of “the dime” from TMM members, the collection of drug debts owed to TMM members, the commission of crimes to collect debts, and the covering-up of crimes. Crawford is not applicable to those statements because they are not testimonial hearsay statements. Accordingly, we find no error. V. Instructions Concerning Co-conspirators’ Guilty Pleas Delgado contends that the district court erred in failing to give a sufficient limiting instruction concerning his co-conspirators’ guilty pleas. Where, as here, the defendant did not'request a limiting instruction at trial, we review challenges to the sufficiency of a limiting instruction for plain error. See United States v. Newell, 315 F.3d 510, 523 (5th Cir.2002); United States v. Martin, 332 F.3d 827, 834 (5th Cir.2003). “Plain error occurs only when the instruction, considered as a whole, was so clearly erroneous as to result in the likelihood of a grave miscarriage of justice.” Id. (quoting United States" }, { "docid": "22238565", "title": "", "text": "the statement was an excited utterance and thus subject to a hearsay exception. See Fed.R.Evid. 803(2) (providing a hearsay exception for “[a] statement relating to a startling event or condition made while the declarant was under stress of excitement caused by the event or condition”). The district court did not abuse its discretion in ruling that the statement was admissible. Brown also claims that Davis’s testimony violated his confrontation clause rights and was impermissibly admitted in contravention of the Supreme Court’s recent decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).. In Crawford, the Supreme Court held that testimonial evidence from an absent witness may be admitted only when the witness is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Id. at 68, 124 S.Ct. 1354. The Crawford rule applies only to testimonial evidence. Id.; United States v. Cantellano, 430 F.3d 1142, 1145 (11th Cir.2005), cert. denied, — U.S.-, 126 S.Ct. 1604, — L.Ed.2d-, No. 05-9303 (March 20, 2006) (noting that non-testimonial evidence “is not subject to confrontation”). Justice Scalia, writing for the majority in Crawford, offered some examples of what the Court had in mind when it used the term “testimonial” evidence: ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, pri- or testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially ... extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions ... statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354 (quotation marks, citations and alterations omitted). The Court further noted that a historical version of Webster’s Dictionary defines “testimony” as “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Id. at 51, 124 S.Ct. 1354 (citing 1 N. Webster, An American Dictionary of the English Language (1828)) (alteration in" } ]

[ { "docid": "23599140", "title": "", "text": "also as collectors, receivers of public moneys at the several land offices, postmasters, and all public officers of whatsoever character, to keep safely all public money collected by them, or otherwise at any time placed in their possession and custody, till the same is ordered by the proper department or officer of the government to be transferred or paid out. They are also required to perform all other duties as fiscal agents of the government which may be imposed by law, or by any regulation of the Treasury Department made in conformity to law. A clerk of the collector is not an officer of the United States within the provisions of this section; and it is only to persons of that rank that the term public officer, as there used, applies. . An officer of the United States can only be appointed by the President, by and with the advice and consent of the Senate, or by a court of law, or the head of a department. A person in the service of the government who does not derive his position from one of these sources is not an officer of the United-States in the sense of the Constitution.' This subject was considered and determined in United States v. Germaine, 99 U. S. 508, and in the recent case of United States v. Mouat, ante, 303. What we have here said ’ is but a repetition of what was there authoritatively declared. The number of clerks the collector may employ may be limited by the Secretary of the Treasury, but their appointment is not .made by the Secretary, nor is his approval thereof required. The duties they perform are as varied as the infinite details of the business of the collector’s office, each taking upon himself such as are assigned to him by the collector. The officers specially designated in § 3639 are all charged by some act of Congress with duties connected with the collection, disbursement, or keeping of the public moneys, or to perform other duties as fiscal agents of the government. A clerk of a collector holding" } ]

[ { "docid": "16448058", "title": "", "text": "Ann. Supp. 1919, §§ 10212a-10212h) as to the conditions of the issuance of search warrants and the form and service thereof by “civil officers,” makes it certain that, under clause 2, section 2, article 2, of the Constitution, the officers so referred to, are such only as hold their appointment through the President, or through the courts, or through the heads of departments, and United States v. Musgrave (D. C.) 293 Fed. 203, is cited, in which it was so held. We are unable to agree with that contention. Our views coincide with those expressed in United States v. Daison (D. C.) 288 Fed. 199, United States v. Keller (D. C.) 288 Fed. 204, United States v. Syrek (D. C.) 290 Fed. 820, United States v. O’Conner (D. C.) 294 Fed. 584, and United States v. American Brewery Co. (D. C.) 296 Fed. 772. The National Prohibition Act (Comp. Stat. Ann. Supp. 1923, § 10138%b) directs the Commissioner of Internal Revenue, his assistants, agents, and inspectors, to investigate and report violations of the War Prohibition Act (Comp. St. Ann. Supp. 1919, §§ 3115ll/i2h), and confers upon such Commissioner, his assistants, agents, and inspectors, power to swear out warrants before the United States commissioners or other officers. Section 10138%e recognizes prohibition agents as officers of the United States. It provides that the Commissioner of Internal Revenue, his assistants, agents, and inspectors, “and all other officers of the United States” whose duty it is to enforce the. criminal laws, shall have the power for the enforcement of the War Prohibition Act, or any provisions thereof, which is conferred by law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquors under tire laws of the United States. Title 2, § 1, subd. 7 (41 Stat. 308 [Comp, St. Ann. Supp. 1923,_ § 10138%]), provides that any act authorized to be done by the Commissioner may be performed by any assistant or agent designated by him for that purpose. Section 28 of the same title (section 10138%o) gives to the Commissioner, his assistants, agents, and inspectors, power and" }, { "docid": "19703380", "title": "", "text": "of the act with the approval of the Secretary of the Treasury, and title 2, § 35, par. 2, (Comp. St. Ann. Supp. 1923, § 10138]/>v), — neither of which, apparently, have any relation to the approval by the Secretary of the Treasury of appointments of agents made by the Commissioner. Whether this legislative omission arose through oversight or was intentional we are unable to say, but inasmuch as the prohibition agent in question was not appointed by the head of a department, or by the head of a bureau under a law calling for the approval of the. department, we feel constrained to hold that he was not an officer of the United States, within the meaning of article 2, § 2, of the Constitution. United States v. Smith, 124 U. S. 525, 8 Sup. Ct. 595, 31 L. Ed. 534; United States v. Mouat, 124 U. S. 303, 8 Sup. Ct. 595, 31 L. Ed. 463; Burnap v. United States, 252 U. S. 512, 40 Sup. Ct. 374, 64 L. Ed. 692. The remaining question is whether the provisions of section 6 of title 11 of the Espionage Act, relating to the officials to whom search warrants may be issued, have been enlarged by the provisions of the Prohibition Act to include agents appointed by the Commissioner of Internal Revenue under section 38 of title 2 to enforce the provisions of that act. The Prohibition Act (title 2) contains the following provisions: “Sec. 28. The Commissioner, Ms assistants, agents, and inspectors, and all other officers of the United States, whose duty it is to enforce criminal laws, shall have all the power and protection in the enforcement of this act or any provisions thereof which is conferred by law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquors under the law of the United States.” Comp. St. Ann. Supp. 1923, § 10138% o. \"Sec. 26. When the Commissioner, Ms assistants, inspectors, or any officer of the law shall discover any person in the aot of transporting in violation of the law, intoxicating" }, { "docid": "8056270", "title": "", "text": "President of the United States,” as required by section 6, title 11, of the Espionage Act (40 Stat. at Large, p. 229; Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496¼f). This objection is without merit. In Keehn v. United States, 300 F. 493, this court held that a prohibition agent appointed, by the Commissioner of Internal Revenue for the enforcement of the Prohibition Act, although not an officer of the United States within the meaning of article 2, § 2 of the Constitution, was an officer to whom a search warrant might be properly issued and by whom it might be served; and in Steele v. United States, 45 S. Ct. 417, 69 L. Ed. — decided by the Supreme Court April 13, 1925, it was held that a prohibition agent was a civil officer of the United States, within the meaning of that expression as used in the Espionage Act, that the expression “civil officer of the United States,” as used in that act, does not mean an officer in the constitutional sense, and that the words of description there used are to designate a civil officer rather than a military agent of the government and one “duly authorized to enforce or assist in enforcing any law of the United ■ States.” The second objection is that the search warrants were directed to a federal prohibition agent or a general federal prohibition agent and that there were no -such officer or officers and no such designation known under the Constitution or statutes of the United States. We think this objection -is answered by what we have already said. The statutes of the United States authorize the appointment of agents by the Commissioner of Internal Revenue to enforce the Prohibition Law, and such agents may properly be termed federal prohibition agents. The third objection is that the direction in the several warrants was to a particular individual as a federal prohibition, or general federal prohibition agent, and his assistants or any or either of them, and that there is no class of officers known to the laws of" }, { "docid": "19703388", "title": "", "text": "the majority I cannot concur. The question is of minor importance in the practical administration of the Prohibition Act, but of much importance in its relation to the security of persons and homes, under the spirit as well as the letter of the Fourth Amendment. In Park v. United States (C. C. A.) 294 Fed. 776, 790, I was constrained to protest against the extension of police powers “by judicial ruling, not by congressional enactment, at a time when the task of organizing and maintaining an honest, law-abiding, and generally competent police force is infinitely harder than the country ever before faced.” The present record presents another situation constraining me to renew this protest. The majority hold that Pollard, the prohibition agent, was not an officer within the meaning of the Constitution. On that point we are in accord. United States v. Germaine, 99 U. S. 508, 25 L. Ed. 482; Burnap v. United States, 252 U. S. 512, 40 Sup. Ct. 374, 64 L. Ed. 692. He was a mere employee of the Commissioner of Internal Revenue, who is not the head of a department. But my Brethren hold that section 6 of title 11 of the Espionage Act has been enlarged by (not merely adopted into) the Prohibition Act, so as to vest in these casual employees, called conveniently, but inaccurately, prohibition agents (Heaton v. United States [C. C. A.] 280 Fed. 697), powers which, under section 6 of title 11 of the Espionage Act, are expressly limited to officers and to persons duly authorized by the President of the United States. With that proposition I take issue. In considering this problem, it is important to bear in mind that search warrants cannot be legally issued simply for the purpose of procuring evidence. Gouled v. United States, 255 U. S. 298, 309, 310, 41 Sup. Ct. 261, 265 (65 L. Ed. 647). As there pointed out by Mr. Justice Clarke: “Search warrants « * * ‘may be resorted to only when a primary right to such search and seizure may be found in the interest which the public" }, { "docid": "13651934", "title": "", "text": "C C. A. 484; United States v. Schlierholz (D. C.) 133 Fed. 333; United States v. Schlierholz (D. C.) 137 Fed. 616. The appointment of United States deputy surveyors is authorized and provided for in section 2223 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 1362), as follows: “Every Surveyor General shall engage a sufficient number of skillful surveyors as his deputies, to whom he is authorized to administer the necessary oaths upon their appointments. He shall have authority to frame regulations for their direction, not inconsistent with law or the instructions of the General Land Office, and to remove them for negligence or misconduct in office.” There is nothing in the pleadings to indicate that complainant was appointed otherwise than as provided in this statute, or that his appointment was approved by the Secretary of the Interior. My attention has not been called to any act of Congress requiring such approval. Complainant was not appointed by the President alone, or by the President by and with the advice and consent of the Senate, or by a court of law. He was therefore not an officer of the United States, unless the Surveyor General for Nevada, by whom he was appointed, was the head of a department within the meaning of the constitutional provision above recited. In United States v. Germaine, 99 U. S. 508, 510, 25 L. Ed. 482, and again in United States v. Mouat, 124 U. S. 303, 307, 8 Sup. Ct. 505, 506 (31 L. Ed. 463), the Supreme Court has defined “heads of departments” in this connection to be what are now called members of the President’s cabinet. In United States v. Germaine, 99 U. S. 508, 25 L. Ed. 482, the Commissioner of Pensions had appointed Germaine a civil surgeon to examine pensioners and applicants for pensions. The appointment was authorized and made under Revised Statutes, § 4777 (U. S. Comp. St. 1901, p. 3293). The defendant was indicted for violating the act which declares that “every officer of the United States who is guilty of extortion under" }, { "docid": "6288839", "title": "", "text": "of the applicable section of the Tucker Act referred to above, the plaintiff was an officer of the United States. By reference to Article 2, Section 2, Clause 2, of the Constitution of the United States, the following language is found: “* $ * but the Congress may by Law vest the Appointment of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” (Italics supplied.) In connection with this section of the Constitution the Supreme Court of the United States in the case of United States v. Hartwell, 1867, 6 Wall. 385, 73 U.S. 385, 18 L.Ed. 830, construed the term office to mean a public station or employment conferred by the appointment of government. The term embraces the ideas of tenure duration, emolument and duties. The court in this case further held that the defendant, Hartwell, having been appointed by the head of his department within the meaning of the applicable constitutional provision upon the subject of the appointing power (Section 2, Article 2, Constitution) was an officer of the United States. See, also, United States v. Germaine, 1878, 99 U.S. 508, 25 L.Ed. 482; also Hall v. Wisconsin, 1880, 103 U.S. 5, 26 L.Ed. 302; also, Auffmordt v. Hedden, 1890, 137 U.S. 310, 11 S.Ct. 103, 34 L.Ed. 674; Fairchild v. United States, C.C.N.J., 1899, 91 F. 297; also United States v. McCrory, 5 Cir., 1899, 91 F. 295, citing with approval the Hartwell and Germaine cases, supra. In 1904 the question was presented to the Circuit Court of Appeals for the 4th Circuit in the case of McGregor v. United States, 134 F. 187, the court there having before it the construction of a criminal statute which made it an offense for an “Officer and agent” to defraud the United States. In that case the court held, citing the Hartwell case, that the tenure, duration, emoluments and duties of the plaintiff made him an officer of the government within the meaning of the legislation under which the said counts in the indictment were drawn," }, { "docid": "19703379", "title": "", "text": "provision that the Commissioner, in making appointments under that section, should do so-with the approval of the Secretary of the Treasury, and the prohibition agent in question had been appointed by the Commissioner with the approval of the Secretary of the Treasury, he would be a civil officer of the United States within the meaning of the Constitution and of section 6 of title 11 of the Espionage Act, to whom search warrants might be issued. United States v. Hartwell, 6 Wall. 385, 18 L. Ed. 830; Price v. Abbott (C. C.) 17 Fed. 506. But section 38 of title 2 of the Prohibition Act contains no provision calling for the approval of the Secretary of the Treasury of such appointments by the Commissioner, and the only provisions in the Prohibition Act, which we have found, where the approval of the Secretary of the Treasury is called for, are in title 2, § 1 (7), being Comp. St. Ann. Supp. 1923, § 10138*4, which authorizes the .Commissioner to make regulations for carrying out the provisions of the act with the approval of the Secretary of the Treasury, and title 2, § 35, par. 2, (Comp. St. Ann. Supp. 1923, § 10138]/>v), — neither of which, apparently, have any relation to the approval by the Secretary of the Treasury of appointments of agents made by the Commissioner. Whether this legislative omission arose through oversight or was intentional we are unable to say, but inasmuch as the prohibition agent in question was not appointed by the head of a department, or by the head of a bureau under a law calling for the approval of the. department, we feel constrained to hold that he was not an officer of the United States, within the meaning of article 2, § 2, of the Constitution. United States v. Smith, 124 U. S. 525, 8 Sup. Ct. 595, 31 L. Ed. 534; United States v. Mouat, 124 U. S. 303, 8 Sup. Ct. 595, 31 L. Ed. 463; Burnap v. United States, 252 U. S. 512, 40 Sup. Ct. 374, 64 L. Ed. 692. The" }, { "docid": "18228147", "title": "", "text": "United States v. Smith, 124 U.S. 525 (1888): * * * An officer of the United States can only be appointed by the President, by and with the advice and consent of the Senate, or by a court of law, or the head of a department. A person in the service of the government who does not derive his position from one of these sources is not an officer of the United States in the sense of the Constitution. This subject was considered and determined in United States v. Germaine, 99 U.S. 508, and in the recent case of United States v. Mouat, ante, 308. What we have here said is but a repetition of what was there authoritatively declared. [Id. at 532.] Again, in United States v. Mouat, 124 U.S. 303 (1888), the court said: * * * Unless a person in the service of the Government, therefore, holds his place by virtue of an appointment by the President, or of one of the courts of justice or heads of Departments authorized by law to make such an appointment, he is not, strictly speaking, an officer of the United States. We do not see any reason to review this well established definition of what it is that constitutes such an officer. [Id. at 307.] In Thomason v. United States, 85 F. Supp. 742, 743 (N.D.Cal. 1948), aff’d 184 F. 2d 105 (9th Cir. 1950), the court said: * * * The United States Supreme Court and inferior Federal Courts have frequently been called upon to decide who are “officers of the United States.” The test used in the great majority of the cases is: Was the employee appointed by the “head of a department” or by one to whom the power of appointment has been delegated by the “head of a department”? U.S. v. Germaine, 1878, 99 U.S. 508, 25 L. Ed. 482; U.S. v. Mouat, 1888, 124 U.S. 303, 8 S. Ct. 505, 31 L. Ed. 463; Burnap v. U.S., 1920, 252 U.S. 512, 40 S. Ct. 374, 64 L. Ed. 692; Scully v. U.S., C.C., 193 F." }, { "docid": "19703387", "title": "", "text": "upon the Commissioner, \"his assistants, agents and inspectors,. * * * all the power and protection in the enforcement of’ the Prohibition Act, “conferred by law for the enforcement of existing laws relating to the manufacture or sale of intoxicating liquors under the laws of the United States.” United States v. Syrek (D. C.) 290 Fed. 820; Smith v. Gilliam (D. C.) 282 Fed. 628, 638-640. We are therefore of the opinion that the provisions of section 6 of the Espionage Act, relating to the officials to whom a search warrant may be issued, are enlarged by the provisions of the Prohibition Act and its amendment, and include the agents and assistants appointed and commissioned by the Commissioner of Internal Revenue for the enforcement of the provisions of the act; that the seizure here in question was lawful and the evidence properly received. Park v. United States (C. C. A.) 294 Fed. 776, and cases there cited. The judgment of the District Court is affirmed. ANDERSON, Circuit Judge (dissenting). In the opinion and decision of the majority I cannot concur. The question is of minor importance in the practical administration of the Prohibition Act, but of much importance in its relation to the security of persons and homes, under the spirit as well as the letter of the Fourth Amendment. In Park v. United States (C. C. A.) 294 Fed. 776, 790, I was constrained to protest against the extension of police powers “by judicial ruling, not by congressional enactment, at a time when the task of organizing and maintaining an honest, law-abiding, and generally competent police force is infinitely harder than the country ever before faced.” The present record presents another situation constraining me to renew this protest. The majority hold that Pollard, the prohibition agent, was not an officer within the meaning of the Constitution. On that point we are in accord. United States v. Germaine, 99 U. S. 508, 25 L. Ed. 482; Burnap v. United States, 252 U. S. 512, 40 Sup. Ct. 374, 64 L. Ed. 692. He was a mere employee of the Commissioner" }, { "docid": "13651935", "title": "", "text": "and consent of the Senate, or by a court of law. He was therefore not an officer of the United States, unless the Surveyor General for Nevada, by whom he was appointed, was the head of a department within the meaning of the constitutional provision above recited. In United States v. Germaine, 99 U. S. 508, 510, 25 L. Ed. 482, and again in United States v. Mouat, 124 U. S. 303, 307, 8 Sup. Ct. 505, 506 (31 L. Ed. 463), the Supreme Court has defined “heads of departments” in this connection to be what are now called members of the President’s cabinet. In United States v. Germaine, 99 U. S. 508, 25 L. Ed. 482, the Commissioner of Pensions had appointed Germaine a civil surgeon to examine pensioners and applicants for pensions. The appointment was authorized and made under Revised Statutes, § 4777 (U. S. Comp. St. 1901, p. 3293). The defendant was indicted for violating the act which declares that “every officer of the United States who is guilty of extortion under color of his office shall be punished.” Act March 3, 1825, c. 65, § 12, 4 Stat. 118. It was decided that the Commissioner of Pensions is not the head of a department within the meaning of section 2, art. 2, of the Constitution, prescribing by whom officers of the United States shall be appointed, and consequently it was held that such civil surgeons are not officers of the United States. In United States v. Mouat, 124 U. S. 303, 8 Sup. Ct. 505, 31 L. Ed. 463, a paymaster’s clerk in the navy-demanded certain sums as mileage under an act of Congress which allowed such mileage to officers of the navy. The claim was resisted on the ground that the claimant was not an officer. The court held that although he was appointed by a paymaster, and the appointment was approved by the Secretary of the Navy, still it could not be regarded as an appointment by the Secretary of the Navy, because there was no statute authorizing the head of the navy department" }, { "docid": "13651936", "title": "", "text": "color of his office shall be punished.” Act March 3, 1825, c. 65, § 12, 4 Stat. 118. It was decided that the Commissioner of Pensions is not the head of a department within the meaning of section 2, art. 2, of the Constitution, prescribing by whom officers of the United States shall be appointed, and consequently it was held that such civil surgeons are not officers of the United States. In United States v. Mouat, 124 U. S. 303, 8 Sup. Ct. 505, 31 L. Ed. 463, a paymaster’s clerk in the navy-demanded certain sums as mileage under an act of Congress which allowed such mileage to officers of the navy. The claim was resisted on the ground that the claimant was not an officer. The court held that although he was appointed by a paymaster, and the appointment was approved by the Secretary of the Navy, still it could not be regarded as an appointment by the Secretary of the Navy, because there was no statute authorizing the head of the navy department to appoint a paymaster’s clerk. Neither was there any act of Congress or rule of the navy requiring any such appointment or approval in order to vest the clerkship. Consequently, as the clerk was neither appointed by the President alone, or by the President, by and with the advice and consent of the Senate, or by a court of law, or under the authority of any law vesting such appointment in the head of a department, lie was not an officer of the navy. In United States v. Cole (C. C.) 130 Fed. 614, a large sum of money had been stolen from the United States mint in San Francisco by the chief clerk Walter Dimmick. It appeared that Cole, the cashier, the chief clerk, and the superintendent of the mint, had access to the vault from which the money was taken. Under an act of Congress which provides that the superintendent of each mint shall he the keeper of all bullion or coin in the mint, except while the same is legally in the" }, { "docid": "3553633", "title": "", "text": "for, and which shall be established by law. But the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.” The argument is that a. person not appointed in the manner above declared is not an officer but an agent or employee of the government. That such is the law is certainly beyond controversy. United States v. Germaine, 99 U. S. 509, 25 L. Ed. 482; United States v. Mouat, 124 U. S. 303, 8 Sup. Ct. 505, 31 L. Ed. 463; United States v. Smith, 124 U. S. 525, 8 Sup. Ct. 595, 31 L. Ed. 534; Auffmordt v. Hedden, 137 U. S. 311, 326, 11 Sup. Ct. 103, 34 L. Ed. 674. That a person who is appointed in accordance with the constitutional provision quoted above is an officer of the United States is, of course, clear. In United States v. Germaine, supra, Mr. Justice Miller speaking for the court and commenting upon article 2, § 2, of the Constitution declared that it was not to be supposed that Congress, “when enacting a criminal law for the punishment of officers of the United States, intended to punish any one not appointed in one of these modes.” In that case a surgeon appointed by the Commissioner of Pensions was held not to be an officer of the United States under section 12 of the act of 1825, which provided that every officer of the United States who is guilty of extortion under color of his office shall be punished in the manner specified in the act. 4 Stat. 118 (Comp. St. §' 10253). The Commissioner of Pensions was held not to be “the head of a department” within the meaning of the constitutional provision referred to. In United States v. Hartwell, 6 Wall. 385, 18 L. Ed. 830, a clerk in the office of the Assistant Treasurer of the United States, at Boston, and appointed by that official with the approbation of the Assistant Secretary of the Treasury as" }, { "docid": "19703377", "title": "", "text": "the Prohibition Act and section 1014 of the Revised Statutes embodied therein, that the provisions of section 6 are enlarged so far as the officials there named are concerned who may issue search warrants in the enforcement of the Prohibition Act. By section 38, title 2, of the Prohibition Act (Comp. St. Ann. Supp.. 1923, § lOlSS^y), it is provided: “Sec. 3S. The Commissioner of Internal Revenue and the Attorney General of the United States are hereby respectively authorized to appoint and employ such assistants, experts, clerks, 'and other employees in ithe District of Columbia or elsewhere, * * * as they may deem necessary for the enforcement of the provisions of this act. * * * ” The questions here presented are (1) whether a prohibition agent, appointed by the Commissioner of Internal Revenue for the enforcement of the provisions of the act, under section 38, is a civil officer of the United States duly authorized to enforce or assist in enforcing any law thereof, within the meaning of section 6 of title 11 of the Espionage Act; or (2) if he is not such a civil officer, whether the provisions-of section 6 relating to the officials to whom a search warrant may be issued, as well as those by whom it may be issued, have been enlarged by the provisions of the Prohibition Act to include agents appointed by the Commissioner of Internal Revenue under section 38 for the enforcement of the provisions of that act. It must be conceded that the prohibition agent in question would be an officer of the United States within the strict constitutional meaning of article 2, § 2, of the Constitution, had he been appointed by the Attorney General under the provisions of section 38, and as such be an official to whom a search warrant might be issued under the provisions of section 6 of title 11 of the Espionage Act. United States v. Germaine, 99 U. S. 508, 25 L. Ed. 482. It must also be conceded that if section 38 of title 2 of the Prohibition Act contained a" }, { "docid": "16448079", "title": "", "text": "was then engaged, was also, taken in its subsequent effort to end the evils resulting from the traffic in liquor, for in enacting the Prohibition Act it expressly declared, as has been above shown, that search warrants authorized to be issued for its enforcement shall be issued “under the limitations” provided in the Espionage Act of June 15, 1917, among which is, as above shown, the declaration that such warrants shall be issued “to a civil officer of the United States duly authorized to enforce or assist in enforcing any law thereof, or to a person so duly authorized by the President of the United States, stating the particular grounds or probable cause for its issue and the names of the persons whose affidavits have been taken in support thereof, and commanding him forthwith to search the person or place named, for the property specified, and to bring it before the judge or commissioner,” and further expressly declaring that such a warrant may in all cases be served by any of the officers so mentioned, “but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution.” The power of Congress so to provide is expressly conferred by section 2 of article 2 of the Constitution, which declares, among other things, that: “The Congress may by law vest the appointment of such. Inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.” That the thousands of agents and employees of the prohibition officers are “civil officers,” within the designation and meaning of the Constitution and statutes to which reference has been made; and to whom warrants of search and seizure are authorized to be directed and issued, is, I think, clearly negatived by the decision of the Supreme Court in Burnap v. United States, 252 U. S. 512, 40 Sup. Ct. 374, 64 L. Ed. 692, and cases there cited. Such agents and employees do not seem to be even under civil service rule, but apparently are political" }, { "docid": "13651933", "title": "", "text": "appointed by the President by and with the advice and consent of the Senate, or appointed by tlie President alone, or a court of law, or the head of a department; and, if the latter, Congress must have vested that power in the person making it, by some statute, and Congress must also have created the office, unless it is one created by the Constitution itself.” These views will find abundant support in the following authorities: United States v. Germaine, 99 U. S. 509, 25 L. Ed. 482; United States v. Mouat, 124 U. S. 303. 8 Sup. Ct. 505, 31 L. Ed. 463; United States v. Smith, 124 U. S. 525, 8 Sup. Ct. 595, 31 L. Ed. 534; Auffmordt v. Hedden, 137 U. S. 311, 326, 11 Sup. Ct. 103, 34 L. Ed. 674; United States v. Van Leuven (D. C.) 62 Fed. 62; United States v. Cole (C. C.) 130 Fed. 614, 617; United States v. Mullin (D. C.) 71 Fed. 682, 689; Martin v. United States, 168 Fed. 198, 201, 93 C C. A. 484; United States v. Schlierholz (D. C.) 133 Fed. 333; United States v. Schlierholz (D. C.) 137 Fed. 616. The appointment of United States deputy surveyors is authorized and provided for in section 2223 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 1362), as follows: “Every Surveyor General shall engage a sufficient number of skillful surveyors as his deputies, to whom he is authorized to administer the necessary oaths upon their appointments. He shall have authority to frame regulations for their direction, not inconsistent with law or the instructions of the General Land Office, and to remove them for negligence or misconduct in office.” There is nothing in the pleadings to indicate that complainant was appointed otherwise than as provided in this statute, or that his appointment was approved by the Secretary of the Interior. My attention has not been called to any act of Congress requiring such approval. Complainant was not appointed by the President alone, or by the President by and with the advice" }, { "docid": "3553632", "title": "", "text": "Sup. Ct. 535, 539 (60 L. Ed. 912): “It is moreover to be observed that there is not the slightest suggestion that there was a want of knowledge of the crime which was charged or of any surprise concerning the same, nor is there any intimation that any request was made for a bill of particulars concerning the details of the offense charged. Under this situation we think that the case is clearly covered by section 1025, Revised Statutes.” This brings us in conclusion to the third objection which is that the indictment charges that the defendants are officers of the United States, to wit, income tax inspectors. The Constitution of the United States, article 2, § 2, prescribes how officers of the United States shall be appointed. It reads as follows: The President “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. But the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.” The argument is that a. person not appointed in the manner above declared is not an officer but an agent or employee of the government. That such is the law is certainly beyond controversy. United States v. Germaine, 99 U. S. 509, 25 L. Ed. 482; United States v. Mouat, 124 U. S. 303, 8 Sup. Ct. 505, 31 L. Ed. 463; United States v. Smith, 124 U. S. 525, 8 Sup. Ct. 595, 31 L. Ed. 534; Auffmordt v. Hedden, 137 U. S. 311, 326, 11 Sup. Ct. 103, 34 L. Ed. 674. That a person who is appointed in accordance with the constitutional provision quoted above is an officer of the United States is, of course, clear. In United States v. Germaine, supra, Mr. Justice Miller speaking for the court and commenting upon" }, { "docid": "19703378", "title": "", "text": "of the Espionage Act; or (2) if he is not such a civil officer, whether the provisions-of section 6 relating to the officials to whom a search warrant may be issued, as well as those by whom it may be issued, have been enlarged by the provisions of the Prohibition Act to include agents appointed by the Commissioner of Internal Revenue under section 38 for the enforcement of the provisions of that act. It must be conceded that the prohibition agent in question would be an officer of the United States within the strict constitutional meaning of article 2, § 2, of the Constitution, had he been appointed by the Attorney General under the provisions of section 38, and as such be an official to whom a search warrant might be issued under the provisions of section 6 of title 11 of the Espionage Act. United States v. Germaine, 99 U. S. 508, 25 L. Ed. 482. It must also be conceded that if section 38 of title 2 of the Prohibition Act contained a provision that the Commissioner, in making appointments under that section, should do so-with the approval of the Secretary of the Treasury, and the prohibition agent in question had been appointed by the Commissioner with the approval of the Secretary of the Treasury, he would be a civil officer of the United States within the meaning of the Constitution and of section 6 of title 11 of the Espionage Act, to whom search warrants might be issued. United States v. Hartwell, 6 Wall. 385, 18 L. Ed. 830; Price v. Abbott (C. C.) 17 Fed. 506. But section 38 of title 2 of the Prohibition Act contains no provision calling for the approval of the Secretary of the Treasury of such appointments by the Commissioner, and the only provisions in the Prohibition Act, which we have found, where the approval of the Secretary of the Treasury is called for, are in title 2, § 1 (7), being Comp. St. Ann. Supp. 1923, § 10138*4, which authorizes the .Commissioner to make regulations for carrying out the provisions" }, { "docid": "22236663", "title": "", "text": "issued “to a civil officer of the United States duly authorized to enforce or assist in enforcing any law thereof.” Tie. argument is that the prohibition agent is appointed'by the Commissioner of Internal Revenue, and therefore is - only an employee and not a civil officer of the government in the constitutional sense, because such an officer under Article 2, Section 2 of the Constitution can only be appointed either by the President and' the Senate, the President alone, the courts of law or the heads of departments. It should first be said that Steele is not in a position .to raise.this question. He might have raised it in the preceding case, but he did not do so,- and did not assign error on account of it in his appeal to this Court. The refusal to vacate the search warrant and to return the liquor seized-was a final decree. The question, is therefore res judicata as against him. But éven if this were not so, we do not think the objection well taken. We think that the expression “.civil officer of the United States duly authorized to enforce, or assist in enforcing, any law thereof,” as used in the Espionage Act, does not mean an officer in the constitutional sense; that Congress in .incorporating the provision in § 25, Title II, of the National Prohibition. Act, did not so construe it and had no intention, thus to limit persons authorized to receive ,and sqrve search warrants. It is quite true that the words “officer of the. United States,” when employed in the statutes of the United States, is to be taken usually to have the limited consti- ' tutional meaning. Burnap v. United States, 252 U. S. 512; United States v. Mouat, 124 U. S. 303; United States v. Smith, 124 U. S. 525. But we find that this Court in consideration of the context has sometimes given it an enlarged meaning and'has found it to include others than those appointed by the President, heads of departments, and courts. United States v. Hendee, 124 U. S. 309. The emphasis, of" }, { "docid": "13651932", "title": "", "text": "considered an officer of the United States, unless the official making the appointment is authorized bj-r law so to do. If an official has been appointed in any of the modes indicated in the paragraph of the federal Constitution above quoted, he is an officer of the United States. If not so appointed, he may be an employe, a contractor, an agent or servant working for the government, and entitled to salary, fees, wages, or other compensation, but he is not, strictly speaking, one of its officers. The Constitution in the use of the words “all other officers” indicates clearly that it has provided and defined the only methods by which its officers can be appointed; and, if an appointment is made in any other mode, the appointee is not an officer of the United States within the meaning of that instrument. “It is clear,” says the court in the case of United States v. Schlierholz (D. C.) 137 Fed. 616, 618, “that no one can be deemed an ‘officer of the United Stales’ unless appointed by the President by and with the advice and consent of the Senate, or appointed by tlie President alone, or a court of law, or the head of a department; and, if the latter, Congress must have vested that power in the person making it, by some statute, and Congress must also have created the office, unless it is one created by the Constitution itself.” These views will find abundant support in the following authorities: United States v. Germaine, 99 U. S. 509, 25 L. Ed. 482; United States v. Mouat, 124 U. S. 303. 8 Sup. Ct. 505, 31 L. Ed. 463; United States v. Smith, 124 U. S. 525, 8 Sup. Ct. 595, 31 L. Ed. 534; Auffmordt v. Hedden, 137 U. S. 311, 326, 11 Sup. Ct. 103, 34 L. Ed. 674; United States v. Van Leuven (D. C.) 62 Fed. 62; United States v. Cole (C. C.) 130 Fed. 614, 617; United States v. Mullin (D. C.) 71 Fed. 682, 689; Martin v. United States, 168 Fed. 198, 201, 93" }, { "docid": "22233904", "title": "", "text": "the Constitutional Power of the Executive to Appoint Inferior Officers of the United States The next inquiry concerns the actual scope of the Presidential appointment power. The general adage is that Congress creates the offices and the President appoints the necessary officers to fill them. See generally L. Tribe, American Constitutional Law 244 (2d ed. 1988). However, the words of the Constitution more particularly narrow the positions in the Federal government which are included within the constitutional appointment process. Article II of the Constitution states: Section 1. The executive Power shall be vested in a President of the United States of America____ Section 2. The President shall be Commander in Chief of the Army and Navy of the United States____ He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may be Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. Section 3. He shall ... take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States. (Emphasis added.) In light of these provisions, the first question which arises is who are “all other Officers of the United States” or “such inferior Officers, as they think proper” within the meaning of Article II of the Constitution. The Supreme Court in United States v. Germaine, 99 U.S. 508, 510, 25 L.Ed. 482 (1879), defined such officers as “all persons who can be said to hold" } ]

[ { "docid": "22032089", "title": "", "text": "27 So. at 915. . Id., 42 Fla. at 19, 27 So. at 916. . In re Baxt, 188 B.R. 322, 324 (Bankr.S.D.Fla.1995); Bank Leumi Trust Co. of N.Y. v. Lang, 898 F.Supp. 883, 887 (S.D.Fla.1995); Butterworth v. Caggiano, 605 So.2d 56, 60 (Fla.1992); Smith, 42 Fla. at 36-40, 27 So. at 911-912. . Smith v. Guckenheimer, 42 Fla. 1, 53, 27 So. 900, 905 (Fla.1900). . Orange Brevard Plumbing & Heating Company v. La Croix, 137 So.2d 201, 203 (Fla.1962); Smith, 42 Fla. at 41, 27 So. at 912. . Palm Beach Savings & Loan Association, F.S.A. v. Fishbein, 619 So.2d 267 (Fla.1993); Orange Brevard Plumbing & Heating Company, 137 So.2d at 203; Hillsborough Inv. Co. v. Wilcox, 152 Fla. 889, 891, 13 So.2d 448, 450 (1943). . Tullis v. Tullis, 360 So.2d 375, 377 (Fla.1978). . Id., 360 So.2d at 378. . In re Kuver, 70 B.R. 190, 192-193 (Bank.S.D.Fla.1986); In re Makarewicz, 126 B.R. 127, 128 (Bank.S.D.Fla.1991). . In re Kuver, 70 B.R. at 192. . In re Aliotta, 68 B.R. 281, 282 (Bankr.M.D.Fla.1986); In re Rodriguez, 55 B.R. 519 (Bankr.S.D.Fla.1985). . In re Wierschem, 152 B.R. 345, 347 (Bankr.M.D.Fla.1993) (holding that rural properly that exceeded the residency limitation was subject to the same administration as In re Englander, 156 B.R. 862 (Bankr.M.D.Fla.1992)); In re Baxt, 188 B.R. 322, 323-324 (Bankr.S.D.Fla.1995) (finding appropriate the sale of an urban indivisible 2.5 acre lot, and apportionment of the proceeds). . 188 B.R. at 323-324. . Orange Brevard Plumbing & Heating Company, 137 So.2d at 206. . 51 B.R. 47, 50 (Bankr.D.Vt.1985). . O'Brien v. Heggen, 705 F.2d 1001, 1004 (8th Cir.1983)." } ]

[ { "docid": "10183205", "title": "", "text": "limited to that portion of the property occupied by the debtors as their residence on the date of the filing of the bankruptcy petition and could not include that portion of the property that was rented to and occupied by a third party. The court grounded its holding on the residency requirement in the Florida Constitution. Id. Likewise, in Aliotta, the court held that three of four units in a multi-family building were not part of the debtor’s residence and therefore not entitled to exempt status. 68 B.R. at 282. The court reasoned that the “elimination of the business property reference from Article X, § 4 [of the Florida Constitution] shows unequivocal intent to limit homestead exemptions to the residence of the owner and to disallow any claim for an exemption that exceeds the residence of the owner.” Id. The court further suggested that the trustee would be entitled either to sell the three units that were not exempt or to institute an action under Section 363(f) of the Bankruptcy Code to sell the property free and clear of any interest in the property. Id. In contrast, the court in Englander overruled the trustee’s objection to a claim of exemption for a rental garage apartment. Order Granting Partial Summary Judgment at 10. Importantly, the rental of the garage apartment was a secondary, minor issue in the Englander decision because the homestead property claimed exceeded the acreage limitation provided by the Florida Constitution. The court upheld the exemption for the garage apartment because it was originally built for utility purposes and not rental purposes. The trustee did prevail, however, on the substantially more significant objection to the acreage claimed. Id. Although there has been no reported decision regarding rural property rendered in this court, the decision reached in Shillinglaw is instructive. In re Shillin-glaw, 81 B.R. 138, 140 (Bankr.S.D.Fla. 1987), affd, 88 B.R. 406 (S.D.Fla.1988). In Shillinglaw, the debtors claimed an exemption for a parcel of rural property comprised of ten contiguous acres with a residence, a barn, and a trailer. The property was located outside the limits of any city." }, { "docid": "602605", "title": "", "text": "Englander, 95 F.3d 1028 (11th Cir.1996). Englander is among a line of cases that provides for the partial or complete disallowance of the homestead exemption in cases where severable portions of the property, usually multi-unit properties, are used solely for income-producing or business purposes. See, e.g., First Leasing & Funding of Florida, Inc. v. Fiedler, 591 So.2d 1152 (Fla. 2nd DCA 1992); In re Wierschem, 152 B.R. 345 (Bankr.M.D.Fla.1993); Thompson v. Hibner, 705 So.2d 36 (Fla. 3rd DCA 1997). In the instant case, it is undisputed that the Property is a single-family residence, and that there are no severable portions of the Property being used for income-producing purposes. Even assuming, as Mi-trano asserts, that unrelated persons were living with Ballato, and further assuming that those persons were paying rent for the use and occupancy of portions of the Property, the fact that the Property is a single-family residence distinguishes it from the cases cited above. See, e.g., In re Englander, 156 B.R. 862, 866-867 (Bankr.M.D.Fla.1992), aff'd 95 F.3d 1028 (11th Cir.1996) (rented apartment over garage attached to single-family residence did not defeat claim for homestead status for the entire property); and In re Makarewicz, 130 B.R. 620 (Bankr.S.D.Fla.1991) (same). 3. Abandonment of Homestead Exemption Finally, Mitrano asserts that the pre-petition Divorce Decree directive that the Property be sold constituted, as a matter of law, Ballato’s abandonment of the homestead exemption. Abandonment of the homestead right under Florida law cannot be found unless the claimant (i) relinquished possession of the property and (ii) formed the intention to discontinue using the property as a homestead. See Brown v. Lewis, 520 F.Supp. 1114 (M.D.Fla.1981); In re Beebe, 224 B.R. 817 (Bankr.N.D.Fla.1998). In the instant case, it is clear that neither of those circumstances are present. Additionally, to conclude that the homestead exemption has been abandoned, the court must find that the abandonment was voluntary. Absence from the homestead that is involuntary or compulsory, or which arises out of health, financial, or family reasons, does not constitute a relinquishment of the homestead rights. See Barnett Bank, of Cocoa, N.A. v. Osborne, 349 So.2d 223" }, { "docid": "3754462", "title": "", "text": "and this Court has not found any case where a Florida court refused to enforce the half acre limitation. The debtors’ claim that In re Kuver, 70 B.R. 190 (Bank.S.D.Fla.1986) and In re Makarewicz, 126 B.R. 127 (Bank.S.D.Fla.1991) support this proposition misstate the holdings in these cases. If the land at issue here were not within a municipality this Court would apply the process given in the Florida Statutes. See Fla.Stat.Ann. § 222.03 (1989). This method allows the owner to designate the exempt property up to the 160 acres permitted by the Florida Constitution. FLA. CONST. art. X § 4. The remaining portion of the owner’s land can then be set apart and sold to satisfy the creditors. Fla.Stat.Ann. § 222.03 (1989); see, Frase v. Branch, 362 So.2d 317. However, lands outside municipalities are seldom subject to strict zoning laws that prohibit the subdivision and sale of parcels, although the use of rural lands is often severely restricted by environmental laws. In a Vermont case, In re Evans, 51 B.R. 47 (Bank.D.Vt.1985), the Court was faced with á similar issue where environmental laws prevented the division of a parcel of land only partially exempt. Nevertheless, the court held that the trustee should sell the entire parcel and allocate the proceeds to the debtors in the amount allowed under Vermont law. Id. at 51. The Evans court stated that “subdivision is not crucial to the protection of the homestead exemption of the debtor.” Id. The Vermont homestead exemption did not limit the area of the homestead but instead limited the value of the homestead to $30,000. Id. at 50. The Evans court determined that if it did not sanction the sale of the entire parcel, the debtor would have retained a homestead in excess of the express dollar limitation. Likewise, in the instant case the debtors would retain a homestead in excess of the express size limitation in the Florida Constitution, unless the tract upon which the residence is located were sold and some equitable allocation of the proceeds is made. Similarly, in Title Insurance Co. of Minnesota v. Agora Leases," }, { "docid": "3108788", "title": "", "text": "Florida constitutional homestead provision did not apply to the portion of the debtor’s property leased to third persons to use as their own business); In re Pietrunti, 207 B.R. 18 (Bankr.M.D.Fla.1997)(limiting a debtor’s homestead exemption to debtor’s actual residence and finding that debtor’s had abandoned their homestead by leasing seventy-five percent of the property to a third party); In re Wierschem, 152 B.R. 345 (Bankr.M.D.Fla.1993)(disallowing a homestead exemption when the property was used predominantly for rental purposes and allowing trustee to sell the property and apportion the proceeds); In re Rodriguez, 55 B.R. 519 (Bankr.S.D.Fla.1985)(finding contiguous real property leased to and occupied by a third party as nonexempt). Nonetheless, in support of his position, the Debtor cites two Florida Supreme Court eases: Fort v. Rigdon, 100 Fla. 398, 129 So. 847 (1930) and Cowdery v. Herring, 106 Fla. 567, 143 So. 433 (1932). These eases, however, were both predicated upon the pre-amendment constitutional language. It is uncontested that court decisions under the language of the 1885 Florida Constitution had allowed an unlimited homestead exemption, even though a portion of the property was leased to and occupied by a third party. The Debtor also cited In re Israel, 94 B.R. 729 (Bankr.N.D.Fla.1988) in support of his position. The Israel Court however based its ruling on Fort v. Rigdon, and thus upon the former version of the Florida Constitution. In accordance with the foregoing, this Court finds that under the plain language of the Florida Constitution, the homestead exemption only extends to that portion of the property which a debtor uses as his residence and cannot include any portion which is rented to and occupied by a third party or used by the third party as his own business. The parties have stipulated that the Irrigated Property is indivisible. The law in the Eleventh Circuit with respect to proper disposition of property that is deemed to be partially exempt, but is indivisible, was set forth in Englander v. Mills (In re Englander), 95 F.3d 1028 (11th Cir.1996), cert. den., — U.S. —, 117 S.Ct. 1469, 137 L.Ed.2d 682 (1997) . In Englander," }, { "docid": "16767825", "title": "", "text": "be non-exempt is a two-story garage of a single family structure. The garage is divided into various areas, some of which the debtor uses as a laundry room and storage facility and some of which the debtor rents to third parties on a month-to-month basis. There are only two (2) such leased and rented areas, each consisting of a single room. The parties agree the property is zoned as a single family residence with no possibility to legally sever and convey the rented portions of the garage. This Court has previously stated its intention not to deny the homestead exemption merely by virtue of commercial activity taking place on the debtor’s living space. Id. The Court remains firm in its belief that a debtor does not necessarily abandon his or her homestead simply because he or she may rent or lease portions thereof, but believes the debtor’s property should be subject to a divisibility test. Kuver, 70 B.R. at 193. The criteria for divisibility should include not only whether a unit or parcel is susceptible to division by perpendicular and/or horizontal lines, but also whether such unit or parcel is lawfully conveyable as an independent parcel under existing law. This property is not so susceptible to division. The Court believes that insistence on such criteria effectuates the equitable considerations and purpose of both the homestead exemption and the Bankruptcy Code: The purpose of the homestead exemption is to provide some protection for the family and the premise of the Bankruptcy Code is to provide a fresh start for honest debtors who have suffered financial disasters. Kuver, 70 B.R. at 192. The perpendicular/horizontal theory, alone, is inadequate and inequitable. Requiring both elements of the divisibility test, as described above, achieves the most equitable results. Requiring the Trustee to meet both criteria does not interfere with the low-income debtor’s ability to rent a room. At the same time, adherence to the foregoing criteria protects creditors and the Trustee from the debtor/resident owner who claims a homestead exemption of a fifty-story rental apartment building, but whose building is susceptible to division into units" }, { "docid": "3754452", "title": "", "text": "the rental apartment issue. Judge Britton in In re Rodriguez, 55 B.R. 519 (Bank.S.D.Fla.1985) held that a portion of a free-standing one-story budding which was rented on a monthly basis was not entitled to the homestead exemption. Id. at 520.. The building in Rodriquez had an internal wall between the portion used by the debtors and the portion rented out. Also, the rental unit had a separate entrance. Id. Thus, it appears that the Smith and Lock-hart analysis regarding the severing by perpendicular lines survived the constitutional amendment, although those cases were not cited by the Rodriguez court. Judge Cristol criticized the Smith and Lockhart reasoning in In re Kuver, 70 B.R. 190 (Bank.S.D.Fla.1986). In Kuver, the debtors resided in half of the duplex they owned. The other half was rented to tenants for monthly rent. Id. at 191. The Court reasoned that the perpendicular line analysis of Smith and Lockhart was antiquated in light of the modern view on condominium ownership; “A condominium complex may be divided vertically and horizontally and freely conveyed.” Id. The Court's new test states that “a unit which is both susceptible to division by perpendicular lines, horizontal lines, or both, and lawfully conveyable as an independent parcel under existing law should be the criteria for the divisibility.” Id. at 193. The Court then applied the new test and found that although the duplex was susceptible to division it was not lawfully saleable because of existing zoning laws. The court therefore held that the entire duplex building was entitled to homestead status. Id. In In re Makarewicz, 126 B.R. 127 (Bank. S.D.Fla.1991), Judge Cristol confirmed the reasoning in Kuver. Id. at 129. A little more than two weeks after Kuver was decided, Judge Paskay followed the Rodriguez reasoning in In re Aliotta, 68 B.R. 281 (Bank.M.D.Fla.1986). In Aliotta, the debtors resided in one of four units of an apartment building they owned. The court held that the trustee could sell the other three units even though they were attached to the debtors’ residence. The court stated “that the mere fact that the claimant occupies part" }, { "docid": "21101389", "title": "", "text": "in order to achieve its solitary purpose, that is to preserve the family home from the viscidities of financial crisis. Notwithstanding, the provision in the Constitution dealing with homestead must be given its plain meaning and should not be extended more than what the constitution provides. Prior to 1986 Amendment to Constitutional provisions of this State included the actual residence and the business property of the owner if was one. However, the elimination of the business property reference in Article X shows an unequivocal intent to limit the homestead exemption to the actual residence of the owner. As noted in In the Matter of Aliotta, 68 B.R. 281 (Bankr.M.D.Fla.1986), even the fact that the Debtor’s residence attached to the other improvements on the property does not extend the homestead protection to the portion which is used for commercial purposes. In In re Pietrunti, 207 B.R. 18 (Bankr.M.D.Fla.1997), this Court considered the homestead claim which although the land met the size limitations, in addition to the actual residence of the Debtor, it had several other free standing rental properties. In this case this Court rejected the homestead claim concerning the rental property and limited the exemptions to the actual residence of the Debtor. The case of In re Oliver, 228 B.R. 771 (Bankr.M.D.Fla.1998) involved a similar fact situation. The homestead exemption was limited to that portion of the property on which the Debtor actually resided but not to the portion that was rented out. In In re Nofsinger, 221 B.R. 1018 (Bankr.S.D.Fla.1998), the debtor sought a homestead exemption for real property on which there was his residence and a storage shed. The debtor leased to a corporation a portion of the property on which the storage shed was located and, just like in the present instance, the property was owned by the debtor jointly with his ex-wife. In Nofsinger, the debtor leased the same portion of the property to a third party who also used the shed for commercial purposes. As in the instant case, the rented portion of the property was indivisible from the residence. The claim of homestead was" }, { "docid": "3108787", "title": "", "text": "In re Wierschem, 152 B.R. 345 (Bankr.M.D.Fla.1993) ; In re Aliotta, 68 B.R. 281 (Bankr.M.D.Fla.1986); First Leasing & Funding of Fla., Inc. v. Fiedler, 591 So.2d 1152 (Fla.Dist.Ct.App.1992); But see In re Englander, 156 B.R. 862 (Bankr.M.D.Fla.1992)(allowing homestead exemption for a garage apartment that was rented to a third party because, under a facts and circumstances analysis, the debtors’ intent in building the garage apartment was for utility and not for rental purposes). Moreover, several courts have determined that there is no question that the residence requirement equally applies to rural as well as municipal homesteads. In re Pietrunti, 207 B.R. 18 (Bankr.M.D.Fla.1997) citing In re Shillinglaw, 81 B.R. 138, 140 (Bankr.S.D.Fla.1987). This Court agrees. Based on the plain language of the Florida constitutional homestead provision, the Trustee’s Objection to the Debtor’s exemption of the Irrigated Property is valid and must be sustained. This issue has been previously addressed in Florida, and the result has been consistent with the result herein. See Shillinglaw v. Lawson, 88 B.R. 406 (S.D.Fla.1988)(affirming bankruptcy court’s decision and finding that Florida constitutional homestead provision did not apply to the portion of the debtor’s property leased to third persons to use as their own business); In re Pietrunti, 207 B.R. 18 (Bankr.M.D.Fla.1997)(limiting a debtor’s homestead exemption to debtor’s actual residence and finding that debtor’s had abandoned their homestead by leasing seventy-five percent of the property to a third party); In re Wierschem, 152 B.R. 345 (Bankr.M.D.Fla.1993)(disallowing a homestead exemption when the property was used predominantly for rental purposes and allowing trustee to sell the property and apportion the proceeds); In re Rodriguez, 55 B.R. 519 (Bankr.S.D.Fla.1985)(finding contiguous real property leased to and occupied by a third party as nonexempt). Nonetheless, in support of his position, the Debtor cites two Florida Supreme Court eases: Fort v. Rigdon, 100 Fla. 398, 129 So. 847 (1930) and Cowdery v. Herring, 106 Fla. 567, 143 So. 433 (1932). These eases, however, were both predicated upon the pre-amendment constitutional language. It is uncontested that court decisions under the language of the 1885 Florida Constitution had allowed an unlimited homestead exemption, even" }, { "docid": "3108786", "title": "", "text": "and this is a core proceeding under 28 U.S.C. § 157(b)(2)(B). Under Florida law, the following property is rendered exempt from process: (1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, ... or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or his family... Fla. Const, art. X, § 4(a)(1). The foregoing provision was adopted in 1968. Prior to 1968, the Florida Constitution provided for a more broad homestead exemption: “[t]he exemption herein provided for in a city or town shall not extend to more improvements or buildings than the residence and business house of the owner.” Fla. Const, art. X, § 1 (1885), amended by Fla. Const, art. X, § 4(a)(1) (1968)(emphasis added). Several Courts have opined that the 1968 amendment to the constitutional provision shows the Florida Legislature’s unequivocal intent to limit homestead exemptions to the residence of the owner. See In re Wierschem, 152 B.R. 345 (Bankr.M.D.Fla.1993) ; In re Aliotta, 68 B.R. 281 (Bankr.M.D.Fla.1986); First Leasing & Funding of Fla., Inc. v. Fiedler, 591 So.2d 1152 (Fla.Dist.Ct.App.1992); But see In re Englander, 156 B.R. 862 (Bankr.M.D.Fla.1992)(allowing homestead exemption for a garage apartment that was rented to a third party because, under a facts and circumstances analysis, the debtors’ intent in building the garage apartment was for utility and not for rental purposes). Moreover, several courts have determined that there is no question that the residence requirement equally applies to rural as well as municipal homesteads. In re Pietrunti, 207 B.R. 18 (Bankr.M.D.Fla.1997) citing In re Shillinglaw, 81 B.R. 138, 140 (Bankr.S.D.Fla.1987). This Court agrees. Based on the plain language of the Florida constitutional homestead provision, the Trustee’s Objection to the Debtor’s exemption of the Irrigated Property is valid and must be sustained. This issue has been previously addressed in Florida, and the result has been consistent with the result herein. See Shillinglaw v. Lawson, 88 B.R. 406 (S.D.Fla.1988)(affirming bankruptcy court’s decision and finding that" }, { "docid": "10183204", "title": "", "text": "must be the place of actual residence of the owner or the owner’s family. Hillsborough Investment Co. v. Wilcox, 152 Fla. 889, 894, 13 So.2d 448, 451 (1943). A number of Florida bankruptcy courts have addressed the issue of rental units located on the same parcel of municipal property constituting the homestead of the debtor. See In re Rodriguez, 55 B.R. 519 (Bankr.S.D.Fla.1985); In re Aliotta, 68 B.R. 281 (Bankr.M.D.Fla.1986); and In re Englander, Case 90-03798-BKC-6C7, 1992 WL 494995 (Bankr.M.D.Fla.Orl.Div., Sept. 8, 1992) (Order Granting Partial Summary Judgment). All support the proposition that partial use of homestead property for rental purposes invalidates a claim of exemption as to that part of the property. In Rodriguez, the court sustained the trustee’s objection to homestead exemption on a piece of real property that consisted of a free-standing one-story building in Hia leah, Florida. The building was separated by an internal wall with each section having a separate entrance. One section was rented to a tenant. 55 B.R. at 520. The court held that the homestead exemption was limited to that portion of the property occupied by the debtors as their residence on the date of the filing of the bankruptcy petition and could not include that portion of the property that was rented to and occupied by a third party. The court grounded its holding on the residency requirement in the Florida Constitution. Id. Likewise, in Aliotta, the court held that three of four units in a multi-family building were not part of the debtor’s residence and therefore not entitled to exempt status. 68 B.R. at 282. The court reasoned that the “elimination of the business property reference from Article X, § 4 [of the Florida Constitution] shows unequivocal intent to limit homestead exemptions to the residence of the owner and to disallow any claim for an exemption that exceeds the residence of the owner.” Id. The court further suggested that the trustee would be entitled either to sell the three units that were not exempt or to institute an action under Section 363(f) of the Bankruptcy Code to sell the property" }, { "docid": "21101391", "title": "", "text": "rejected. The court based its decision in part on the analysis of the claim in the case of In re Englander, 156 B.R. 862 (Bankr.M.D.Fla.1992). There the claim was rejected on the basis that under the “plain language” of the Florida constitution, the homestead exemption only extends to that portion of the property which the Debtor uses as his residence and cannot include any portion which is rented to or occupied by a third party or used by a third party as his own business. In Englander the court held that when the property is indivisible the sale of the entire property and the apportionment of the proceeds is a fair and equitable solution which gives full credit to the Debtor’s homestead exemption claim. Similar reasoning was followed in the case of In re Baxt, 188 B.R. 322 (Bankr.S.D.Fla.1995) where the Debtor’s residence was located on real property in excess of the acre limitation of property in a municipality (Article X Sec. 4(a)(2)) and local zoning ordinances prohibited the Debtor from subdividing the land. In Baxt, the Court held that despite the fact that the land cannot be legally subdivided a strict interpretation of the acre limitation by the Constitution requires it to limit the exemption to the land within the limitation and disallow the claim of homestead exemption as to the remainder of the property which exceeded the limit. Concerning the facts and circumstances in this instance, this Court is satisfied that the subject property was acquired for and the structure at issue was built for commercial use. In the instant case the structure was rented to third parties for nearly three years. There is no evidence in this record that the Debtor actually ever used this structure for any purpose other than as rental property. It is the contention of counsel for the Debtor that because the land cannot be subdivided, the Debtor is entitled to claim the entire parcel as her homestead. This proposition was also urged and rejected in In re Englander, supra, and in Nofsinger, supra, Based on the foregoing this Court is satisfied that" }, { "docid": "3108789", "title": "", "text": "though a portion of the property was leased to and occupied by a third party. The Debtor also cited In re Israel, 94 B.R. 729 (Bankr.N.D.Fla.1988) in support of his position. The Israel Court however based its ruling on Fort v. Rigdon, and thus upon the former version of the Florida Constitution. In accordance with the foregoing, this Court finds that under the plain language of the Florida Constitution, the homestead exemption only extends to that portion of the property which a debtor uses as his residence and cannot include any portion which is rented to and occupied by a third party or used by the third party as his own business. The parties have stipulated that the Irrigated Property is indivisible. The law in the Eleventh Circuit with respect to proper disposition of property that is deemed to be partially exempt, but is indivisible, was set forth in Englander v. Mills (In re Englander), 95 F.3d 1028 (11th Cir.1996), cert. den., — U.S. —, 117 S.Ct. 1469, 137 L.Ed.2d 682 (1997) . In Englander, the Eleventh Circuit held that when homestead status is denied to a portion of a piece of property, and the property is not divisible, the trustee may sell the whole property and the court will apportion the proceeds. Englander, 95 F.3d at 1032 citing In re Wierschem, 152 B.R. 345, 347 (Bankr.M.D.Fla.1993) (holding that rural property that exceeded the residency limitation was subject to the same administration as in In re Englander, 156 B.R. 862 (Bankr.M.D.Fla.1992)); In re Baxt, 188 B.R. 322, 323-324 (Bankr.S.D.Fla.1995) (finding the sale of an indivisible 2.5 acre urban lot and apportionment of the proceeds thereof appropriate). The Eng-lander Court reasoned that a sale of the entire property and apportionment of the proceeds is an equitable solution, allows for an appropriate recognition of the debtor’s homestead exemption, and will afford the creditors satisfaction of their rightful claims. Englander, 95 F.3d at 1032. In accordance with the Eleventh Circuit’s ruling in Eng-lander, the Court hereby ORDERS AND ADJUDGES as Mows: 1. The Trustee’s Objection to Debtor’s Claimed Homestead Exemption of the Irrigated" }, { "docid": "3108791", "title": "", "text": "Property is Sustained. 2. The parties have thirty (30) days from the date of this Order to submit an agreed order (1) as to the value of the Irrigated Property and (2) the manner in which such amount is to be paid to the Trustee for inclusion in the Debtor’s bankruptcy estate. 3. If the parties fail to reach an agreement within thirty (30) days from the date of this Order, the Trustee is hereby authorized to sell the Real Property as set forth in Englander v. Mills (In re Englander), 95 F.3d 1028 (11th Cir.1996) and the Court will apportion the proceeds accordingly. 4. This Court will hold a hearing on apportionment upon a motion for apportionment filed by either party. . This case is especially helpful in this court’s determination because it discusses the relevancy of In re Shillinglaw on this issue. In Shillinglaw, the court sustained a similar objection to the one at bar finding that there was no overt or announced intent in drafting Article X, Section 4, of the Florida Constitution to limit the residency requirement to city homesteads only. The Shil-linglaw court’s reasoning is pertinent given the fact that the court had previously participated in the deliberations of the Commission that drafted the present version of the Florida Constitution. . Prior to this decision, several cases allowed homestead exemptions in entire parcels of property that contained rental portions where the property was unable to be partitioned and sold due to existing zoning laws. See In re Makarewicz, 126 B.R. 127 (Bankr.S.D.Fla.1991)(munici-pal homestead property used for rental purposes entitled to exemption because, although it was susceptible to division, it was not lawfully salea-ble under existing zoning laws); In re Kuver, 70 B.R. 190 (Bankr.S.D.Fla.1986)(allowing municipal homestead property as entirely exempt despite fact that portion was rented to a third party, because property was not lawfully saleable under existing zoning laws)." }, { "docid": "3754461", "title": "", "text": "because the zoning laws of a municipality prevent the subdivision and sale of the non-exempt portion of debtors’ lands. This Court holds that they may not. The Florida Constitution allows a homestead exemption “to the extent of one-half acre of contiguous property.” FLA. CONST, art. X § 4. This area limitation is the inexorable command of the Constitution. There is a vast difference between the half acre limit and the more flexible limitation that the exemption extends only to the residence of the owner. If the residence limitation were read strictly, landowners would not be entitled to a half acre exemption unless their residence itself was a half acre. Also, no rental land would be exempt no matter how insignificant or indivisible it is from the residence. A strict construction of that limitation has never been applied by the courts of this state. See Edward Leasing Corp. v. Uhliq, 652 F.Supp. 1409, 1416-1417 (S.D.Fla.1987). In contrast, the half acre limitation must be enforced more stringently. Neither the objectors nor the debtors have cited any case and this Court has not found any case where a Florida court refused to enforce the half acre limitation. The debtors’ claim that In re Kuver, 70 B.R. 190 (Bank.S.D.Fla.1986) and In re Makarewicz, 126 B.R. 127 (Bank.S.D.Fla.1991) support this proposition misstate the holdings in these cases. If the land at issue here were not within a municipality this Court would apply the process given in the Florida Statutes. See Fla.Stat.Ann. § 222.03 (1989). This method allows the owner to designate the exempt property up to the 160 acres permitted by the Florida Constitution. FLA. CONST. art. X § 4. The remaining portion of the owner’s land can then be set apart and sold to satisfy the creditors. Fla.Stat.Ann. § 222.03 (1989); see, Frase v. Branch, 362 So.2d 317. However, lands outside municipalities are seldom subject to strict zoning laws that prohibit the subdivision and sale of parcels, although the use of rural lands is often severely restricted by environmental laws. In a Vermont case, In re Evans, 51 B.R. 47 (Bank.D.Vt.1985), the Court was" }, { "docid": "21101390", "title": "", "text": "standing rental properties. In this case this Court rejected the homestead claim concerning the rental property and limited the exemptions to the actual residence of the Debtor. The case of In re Oliver, 228 B.R. 771 (Bankr.M.D.Fla.1998) involved a similar fact situation. The homestead exemption was limited to that portion of the property on which the Debtor actually resided but not to the portion that was rented out. In In re Nofsinger, 221 B.R. 1018 (Bankr.S.D.Fla.1998), the debtor sought a homestead exemption for real property on which there was his residence and a storage shed. The debtor leased to a corporation a portion of the property on which the storage shed was located and, just like in the present instance, the property was owned by the debtor jointly with his ex-wife. In Nofsinger, the debtor leased the same portion of the property to a third party who also used the shed for commercial purposes. As in the instant case, the rented portion of the property was indivisible from the residence. The claim of homestead was rejected. The court based its decision in part on the analysis of the claim in the case of In re Englander, 156 B.R. 862 (Bankr.M.D.Fla.1992). There the claim was rejected on the basis that under the “plain language” of the Florida constitution, the homestead exemption only extends to that portion of the property which the Debtor uses as his residence and cannot include any portion which is rented to or occupied by a third party or used by a third party as his own business. In Englander the court held that when the property is indivisible the sale of the entire property and the apportionment of the proceeds is a fair and equitable solution which gives full credit to the Debtor’s homestead exemption claim. Similar reasoning was followed in the case of In re Baxt, 188 B.R. 322 (Bankr.S.D.Fla.1995) where the Debtor’s residence was located on real property in excess of the acre limitation of property in a municipality (Article X Sec. 4(a)(2)) and local zoning ordinances prohibited the Debtor from subdividing the land. In" }, { "docid": "3754451", "title": "", "text": "So.2d at 764. Neither Cowdery nor McEwen were applied by the court because they both dealt with improvements unattached to the residence of the owner. Id. The Florida Supreme Court again returned to the Cowdery reasoning that rental property can constitute an owner's business house in Union Trust Company v. Glunt, 85 So.2d 877 (Fla.1956). The Court held that the residence and business house language in the 1885 Constitution was flexible enough to include the different trades owners might have. Id. at 879. The Court stated that “garage apartments are frequently placed adjacent to the home for rental as well as utility purposes.” Id.; see, White v. Posick, 150 So.2d 263, 265 (Fla.C.A.1963) (“the usages of defendant’s garage apartment were ... within the “utility” classification set out in the Glunt case”); see also, Weiss v. Stone, 220 So.2d 403 (Fla.C.A.1969) (determination of homestead character when partially residential and the rest income producing is factual one). After the 1968 amendment, which removed the business house language from the exemption, only a few cases have dealt with the rental apartment issue. Judge Britton in In re Rodriguez, 55 B.R. 519 (Bank.S.D.Fla.1985) held that a portion of a free-standing one-story budding which was rented on a monthly basis was not entitled to the homestead exemption. Id. at 520.. The building in Rodriquez had an internal wall between the portion used by the debtors and the portion rented out. Also, the rental unit had a separate entrance. Id. Thus, it appears that the Smith and Lock-hart analysis regarding the severing by perpendicular lines survived the constitutional amendment, although those cases were not cited by the Rodriguez court. Judge Cristol criticized the Smith and Lockhart reasoning in In re Kuver, 70 B.R. 190 (Bank.S.D.Fla.1986). In Kuver, the debtors resided in half of the duplex they owned. The other half was rented to tenants for monthly rent. Id. at 191. The Court reasoned that the perpendicular line analysis of Smith and Lockhart was antiquated in light of the modern view on condominium ownership; “A condominium complex may be divided vertically and horizontally and freely conveyed.” Id." }, { "docid": "3754453", "title": "", "text": "The Court's new test states that “a unit which is both susceptible to division by perpendicular lines, horizontal lines, or both, and lawfully conveyable as an independent parcel under existing law should be the criteria for the divisibility.” Id. at 193. The Court then applied the new test and found that although the duplex was susceptible to division it was not lawfully saleable because of existing zoning laws. The court therefore held that the entire duplex building was entitled to homestead status. Id. In In re Makarewicz, 126 B.R. 127 (Bank. S.D.Fla.1991), Judge Cristol confirmed the reasoning in Kuver. Id. at 129. A little more than two weeks after Kuver was decided, Judge Paskay followed the Rodriguez reasoning in In re Aliotta, 68 B.R. 281 (Bank.M.D.Fla.1986). In Aliotta, the debtors resided in one of four units of an apartment building they owned. The court held that the trustee could sell the other three units even though they were attached to the debtors’ residence. The court stated “that the mere fact that the claimant occupies part of the property as a residence is not enough to entitle him to an exemption for the whole.” Id. at 282. In this opinion the Court took a facts and circumstances approach to determine whether the rental property attached or located on the same tract as the residence could be subject to homestead exemption. In the present matter, the garage apartment should be given homestead status. This Court adopts the “Facts and Circumstances” analysis of Rodriguez, Aliotta, Cowdery, McEwen, and Glunt, and finds that the garage apartment was built on homestead property for utility purposes and not rental purposes. The Court holds that hard and fast tests for determining homestead exemptions proposed by other Courts do not take into account the unique factual circumstances which necessarily arise in every homestead claim. This determination however will have little impact in this case given the Court rulings on the remaining issues. Thus, the garage apartment falls within the ambit of the homestead exemption. 3.) DESIGNATION OF THE HALF ACRE The next and most important issue before the" }, { "docid": "18586417", "title": "", "text": "had been originally purchased for business reasons. The court concluded that the debtors had intended to use both parcels as a homestead. Id. at 984. But in this case, Lloyd is not being deprived of her entitlement. The bankruptcy court balanced the need to comply with Wisconsin’s homestead exemption statute against the requirement to make the estate available to creditors, and determined that three acres was sufficient. In order to effectively grant Lloyd the exemption, the court sought to have the property brought into compliance with local law permitting the construction of a home. Other bankruptcy courts have addressed the problem of exemptions being in tension with state law or local law. Where a homestead exemption is a state constitutional right, that right may not be denied or frustrated by a zoning change brought about by local government. In re Webb, 121 B.R. 827 (Bankr.E.D.Ark.1990) (court allowed homestead exemption although property claimed was zoned as commercial); In re Dudeney, 159 B.R. 1003 (Bankr.S.D.Fla.1993) (in allowing debtor to declare two contiguous lots as a homestead, court found that zoning laws are not determinative of the homestead exemption). See In re Makarewicz, 130 B.R. 620 (Bankr.S.D.Fla.1991) (debtor rented out portions of property that was zoned as a single family residence with no possibility of legally severing property and whole property was allowed as homestead); In re Kuver, 70 B.R. 190 (Bankr.S.D.Fla.1986) (creating new divisibility test in allowing entire duplex to be exempt where duplex was divisible but not lawfully marketable under zoning laws). On the other hand, where state law limits the size or value of a homestead exemption, bankruptcy courts have been unwilling to increase the size of the homestead in order, ostensibly, to comply with local zoning laws. In re Englander, 156 B.R. 862 (Bankr.M.D.Fla.1992) (zoning laws prevented the subdivision and sale of the non-exempt land and rather than allow larger exemption, court ordered sale of property and apportionment of proceeds). The trustee is the representative of the estate, 11 U.S.C. § 323, and is charged with liquidating the property of the estate as expeditiously as is compatible with the" }, { "docid": "16767824", "title": "", "text": "ORDER DENYING TRUSTEE’S MOTION FOR REHEARING A. JAY CRISTOL, Bankruptcy Judge. THIS CAUSE came before the Court upon the Trustee’s Motion for Rehearing on Memorandum Decision filed April 29, 1991. On April 15,1991, this Court entered its Memorandum Decision in accordance with In re: Kuver, 70 B.R. 190 (Bankr.S.D.Fla.1986), holding certain property of the debtor to be homestead and, therefore, exempt from the bankruptcy estate pursuant to Florida law. 126 B.R. 127. In his motion for rehearing, the Trustee asserts the Court’s reliance on Kuver is misplaced. Id. The Trustee also asserts, albeit respectfully, that the Court failed to address the Trustee’s demand for turnover of non-exempt rental income. The Court does not find that the Trustee’s motion for rehearing addresses any issues not before considered by this Court. In asserting the Court's reliance on Kuver is misplaced, the Trustee alleges the equitable considerations which outweighed the interest of the estate in Kuver are not present in the case sub judice. The Court does not agree. The property the Trustee seeks to have determined to be non-exempt is a two-story garage of a single family structure. The garage is divided into various areas, some of which the debtor uses as a laundry room and storage facility and some of which the debtor rents to third parties on a month-to-month basis. There are only two (2) such leased and rented areas, each consisting of a single room. The parties agree the property is zoned as a single family residence with no possibility to legally sever and convey the rented portions of the garage. This Court has previously stated its intention not to deny the homestead exemption merely by virtue of commercial activity taking place on the debtor’s living space. Id. The Court remains firm in its belief that a debtor does not necessarily abandon his or her homestead simply because he or she may rent or lease portions thereof, but believes the debtor’s property should be subject to a divisibility test. Kuver, 70 B.R. at 193. The criteria for divisibility should include not only whether a unit or parcel is susceptible" }, { "docid": "18586418", "title": "", "text": "found that zoning laws are not determinative of the homestead exemption). See In re Makarewicz, 130 B.R. 620 (Bankr.S.D.Fla.1991) (debtor rented out portions of property that was zoned as a single family residence with no possibility of legally severing property and whole property was allowed as homestead); In re Kuver, 70 B.R. 190 (Bankr.S.D.Fla.1986) (creating new divisibility test in allowing entire duplex to be exempt where duplex was divisible but not lawfully marketable under zoning laws). On the other hand, where state law limits the size or value of a homestead exemption, bankruptcy courts have been unwilling to increase the size of the homestead in order, ostensibly, to comply with local zoning laws. In re Englander, 156 B.R. 862 (Bankr.M.D.Fla.1992) (zoning laws prevented the subdivision and sale of the non-exempt land and rather than allow larger exemption, court ordered sale of property and apportionment of proceeds). The trustee is the representative of the estate, 11 U.S.C. § 323, and is charged with liquidating the property of the estate as expeditiously as is compatible with the best interests of the parties in interest. 11 U.S.C. § 704. The bankruptcy court’s equitable powers, found in 11 U.S.C. § 105, enable the court “to issue any order, process, or judgment that is necessary or appropriate to carry out provisions” of the Code. 11 U.S.C. § 105(a). These powers may be exercised only “within the confines of the Bankruptcy Code.” Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 108 S.Ct. 963, 99 L.Ed.2d 169 (1988). The bankruptcy court does not have “free-floating discretion,” to create rights outside the Code, In the Matter of Chicago, Milwaukee, St. Paul and Pacific R.R. Co., 791 F.2d 524, 528 (7th Cir.1986), but the court may exercise its equitable powers in a manner consistent with the Code. In re SPM Mfg. Corp., 984 F.2d 1305, 1311 (1st Cir.1993). The bankruptcy court sought to grant Lloyd a homestead exemption. It determined an appropriate amount of land to which she was entitled. This is a finding that we will not reverse absent clear error. It then exercised its equitable powers to" } ]

[ { "docid": "22070586", "title": "", "text": "as Joseph Sabella and Harold Brown, both from the Chicago [Regional Office of HUD. Plaintiff believes that it has thus established a prima facie case of privity of contract between plaintiff and defendant regarding the changes. Finally, plaintiff believes that Article IX of the Contract of Sale creates a third-party beneficiary relationship between plaintiff and defendant, so as to confer jurisdiction upon this court. The contract here in issue is one of many pursuant to which the Federal Government subsidizes projects of state and local authorities for the public betterment. The United States, however, does not make itself a party to the contracts relating to said projects hut obligates itself by separate agreements, as here, to local authorities for the funding of those projects it approves. The significance of that approval is spelled out here in Article IX. This does not create an express or implied contract between plaintiff and defendant nor does it make the Commission defendant’s agent through HUD. HUD’s actions were performed in defendant’s capacity as sovereign. This principle has been settled for some time by a similar case involving construction under the Federal-Aid Highways Act. D. R. Smalley & Sons v. United States, 178 Ct. Cl. 593, 372 F. 2d 505, cert. denied, 389 U.S. 835 (1967). The Smalley case is squarely in point. If then there is no privity between the parties based on the contract language and understanding, has plaintiff brought •itself within our Rule 101(d) by showing genuine issue as to a material fact which would, if true, as plaintiff represents, make a difference in the result? In such event, summary judgment is not appropriate. Any doubts must be resolved against defendant as the moving party. Garcia v. United States, 123 Ct. Cl. 722, 108 F. Supp. 608 (1952). Plaintiff, as aforesaid, relies upon the affidavit of Mr. Treis-ter that defendant ordered and plaintiff performed changes and additions to the work beyond the requirements of the contract and that defendant agreed to pay for same through its duly authorized agents, Sabella and Brown, thus creating an express contractual obligation between plaintiff and defendant" } ]

[ { "docid": "11970309", "title": "", "text": "Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986) (citation omitted). 3. Rules of contract interpretation Questions of contract interpretation are questions of law that may be resolved by summary judgment. Muniz v. United States, 972 F.2d 1304, 1309 (Fed.Cir. 1992); Fortec Constr. v. United States, 760 F.2d 1288, 1291 (Fed.Cir.1985); P.J. Maffei Bldg. Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed.Cir.1984). When resolving a question of contract interpretation, the court’s primary purpose is to ascertain the intention of the contracting parties. Beta Sys., Inc. v. United States, 838 F.2d 1179, 1185 (Fed.Cir.1988) (citing S. Williston, A Treatise on the Law of Contracts § 601 (3d ed.1961)). An interpretation that gives a reasonable meaning to all parts of the contract will be preferred to one that leaves portions of the contract meaningless. United States v. Johnson Controls, Inc., 713 F.2d 1541, 1555 (Fed.Cir.1983) (followed in Fortec, 760 F.2d at 1292). An agreement should be read as a whole so as to avoid conflicts between provisions within the contract. Reliance Ins. Co. v. United States, 931 F.2d 863, 865 (Fed.Cir.1991); Hoi-Gar Mfg. Corp. v. United States, 169 Ct.Cl. 384, 395, 351 F.2d 972, 979 (1965). As a matter of contract interpretation, evidence outside the contract only should be considered if the contract is ambiguous. Sylvania Elec. Prods., Inc. v. United States, 198 Ct.Cl. 106, 126, 458 F.2d 994, 1005 (1972). A contract is ambiguous if it is amenable to more than one reasonable interpretation. S.W. Aircraft, Inc. v. United States, 213 Ct.Cl. 206, 212, 551 F.2d 1208, 1212 (1977). A contract is not rendered necessarily ambiguous merely because the parties disagree over the meaning of a particular contract provision. Perry & Wallis, Inc. v. United States, 192 Ct.Cl. 310, 315, 427 F.2d 722, 725 (1970). While the construction of an unambiguous writing is an appropriate matter for summary judgment, language that is reasonably susceptible to more than one interpretation may be considered ambiguous and thus not appropriate for summary judgment. Davis v. Chevy Chase Fin. Ltd., 667 F.2d 160, 169 (D.C.Cir.1981). INSLAW argues that" }, { "docid": "15086417", "title": "", "text": "was not a party to that contract, and that contract gave New Era no rights against HUD. To the contrary, section 14.6 of the contributions contract stated that nothing in that contract “shall be construed as creating or justifying any claim against HUD by any third party.” With respect to that contract, New Era was exactly that: a third party. New Era argues, however, that in view of the extensive involvement of HUD in the construction project and section 13.6 of the construction contract, the turnkey contract and the construction contract taken together formed a contract between New Era and HUD. The Court of Claims, the decisions of which bind us, see South Corp. v. United States, 690 F.2d 1368, 1370 n. 2 (Fed.Cir.1982), has held several times that the government’s involvement in the financing and supervision of a contract between a public agency and a private contractor does not create a contract between the government and the contractor, for the breach of which the contractor may sue the government. The leading case is D.R. Smalley & Sons, Inc. v. United States, 372 F.2d 505, 178 Ct.Cl. 593, cert. denied, 389 U.S. 835, 88 S.Ct. 45, 19 L.Ed.2d 97 (1967). The contracts there, which were for highway construction, were between Smalley and the State of Ohio. The United States statutorily was authorized to reimburse Ohio for 90 percent of the State's costs, and exercised substantial control over the contracts and their performance. The contractor sued the United States for the losses it allegedly suffered in performing the contracts. It alleged that the involvement of the United States in the construction contracts created an express or implied contract between Smalley and the United States. The Court of Claims dismissed the suit. It held that the involvement of the United States in the financing and regulation of the State’s highway construction contract “were sovereign acts of the Government,” and that “the Federal Government is not liable for damages resulting from sovereign acts performed by it in its sovereign capacity.” 372 F.2d at 507. Noting that “[t]he National Government makes many hundreds of" }, { "docid": "14760014", "title": "", "text": "United States. D.R. Smalley & Sons, 178 Ct. Cl. at 597-98, 372 F.2d at 507. Second, this court has likewise rejected Marshall’s contention that the U.S. is liable to contractors because they are the intended third party beneficiaries of the contract between HUD and the local or state agency. See, e.g., Housing Corp. of America, 199 Ct. Cl. at 712-13, 468 F.2d at 925-26. No obligation to a third party is created even when the language in the contract provides, as does a provision in this Contributions Contract, that \"funds have been reserved by the Government and will be available to effect payment and performance by the Purchaser.” Id. On the contrary, the language of standard § 510 of the Contributions Contract ( acc ) specifically denies third parties a right of action against the U.S. See Correlated Development Corp., 214 Ct. Cl. at 114, 556 F.2d at 520. Plaintiffs other points are similarly without merit. Because there is no agency relationship between the U.S. and the local authority there is no vicarious liability of the defendant for acts of the local body against the contractor. G-Lam, supra; D.R. Smalley & Sons, 178 Ct. Cl. at 598, 372 F.2d at 507-08. Unjust enrichment, claimed by plaintiff, requires a contract implied at law over which this court does not have jurisdiction. Aetna Casualty & Surety Co., 228 Ct. Cl. at 164, 655 F.2d at 1059-60; Velez v. United States, 227 Ct.Cl. 626 (1981); Cleveland Chair Co. v. United States, 214 Ct. Cl. 360, 364, 557 F. 2d 244, 246 (1977). The mere transfer of the case to this court does not establish jurisdiction; we must always assess jurisdiction for ourselves. See Berdick v. United States, 222 Ct. Cl. 94, 99, 612 F.2d 533, 536 (1979) (vacated and modified on other grounds). Lastly, the defendant is not estopped from arguing lack of our jurisdiction because it may have urged lack of jurisdiction in the District Court based on jurisdiction here. See Peoples Apparel Ltd. v. United States, 226 Ct.Cl. 515, 518 n. 6 (1980). Accordingly, without oral argument, the defendant’s motion for" }, { "docid": "6763888", "title": "", "text": "reasonable inferences against the party whose motion is under consideration. Mingus Constructors, Inc. v. United States, 812 F.2d at 1391. In the instant case, the parties propose divergent legal interpretations of the holdover clause language in paragraph 38 of the Solicitation for Offers R7-18N-82A, which was incorporated by reference into the lease and lease supplement, as signed: 38. Holdover If, after expiration of the lease, the Government shall retain possession of the premises, the lease shall continue in force and effect on a month-to-month basis not to exceed 90 days. Rent shall be paid monthly in arrears on a prorated basis at the rate paid during the lease term, (emphasis added.) The plaintiff maintains that the holdover clause requires the government agency remaining in possession after the expiration of the lease to pay a full month’s rent for either each month, or any portion of a month, during which the government has possession. Conversely, the defendant argues that the lease provides for the daily proration of any possession of the property by the government for less than a full month. As a general proposition, although a lease may concern and convey a property interest, it is very much a contract, Keydata Corp. v. United States, 205 Ct.Cl. 467, 482, 504 F.2d 1115, 1123 (1974). The interpretation of the language of a contract is a question of law, not fact. See Fortec Constructors v. United States, 760 F.2d 1288, 1291 (Fed.Cir.1985); Hol-Gar Mfg. Corp. v. United States, 169 Ct.Cl. 384, 386, 351 F.2d 972, 973 (1965). Thus, because the parties’ dispute centers on the interpretation of the terms of the lease, the issue before the court can be viewed as one of law, which may properly be resolved by the court on summary judgment. When interpreting the language of a contract, or as in this case, a lease, a court must give reasonable meaning to all parts of the agreement and not render any portion meaningless, or interpret any provision so as to create a conflict with another provision of the agreement. See Fortec Constructors, 760 F.2d at 1292; United States" }, { "docid": "13539062", "title": "", "text": "contract. Even if an obligation to assemble a close-to-flawless bid package existed, PCL would still face the burden of demonstrating that USBR breached such a duty and acted in bad faith. Agency employees are presumed to act in good faith, and a claimant must present “well-nigh irrefragable proof’ of bad faith to overcome that presumption. T & M Distrib., Inc. v. United States, 185 F.3d 1279, 1285 (Fed.Cir.1999); McEachern v. OPM, 776 F.2d 1539, 1544 (Fed.Cir.1985); Kalvar Corp. v. United States, 211 Ct.Cl. 192, 198, 543 F.2d 1298, 1301-02 (1976), cert. denied, 434 U.S. 830, 98 S.Ct. 112, 54 L.Ed.2d 89 (1977). Agency employees axe presumed to discharge their official duties properly and fairly, in good faith and in accordance with law and applicable regulations. See Bracy v. Gramley, 520 U.S. 899, 909, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997); Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 795 (Fed.Cir.1993) (citing Parsons v. United States, 229 Ct.Cl. 335, 339, 670 F.2d 164, 166 (1982)). Moreover, the clear, express, terms of the contract itself, into which PCL entered with the government, provided for all of the events that PCL now offers to support its misrepresentation and fraud claims. PCL presents an argument in its misrepresentation claims that USBR was bound by either a preaward contract or by the executed contract itself, to certain standards of care primarily related to geologic investigation, structural design and contract administration procedures. It is the breach of these supposed contract requirements that forms the basis for several of the breach of contract counts in PCL’s complaint. Interpretation of a government contract is a matter of law. Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 997 (Fed. Cir.1996) (citing Fortec Constructors v. United States, 760 F.2d 1288, 1291 (Fed.Cir. 1985)); Hol-Gar Mfg. Corp. v. United States, 169 Ct.Cl. 384, 386, 351 F.2d 972, 974 (1965). The language of the contract must be given the meaning that would be derived from the contract by a “reasonably intelligent person acquainted with the contemporaneous circumstances.” Metric Constructors, Inc. v. NASA 169 F.3d 747, 752 (Fed.Cir.1999) (quoting Hol-Gar Mfg. Corp." }, { "docid": "10310736", "title": "", "text": "and defendant, nor does it make the Commission defendant’s agent through HUD. HUD’s actions were performed in defendant’s capacity as sovereign. This principle has been settled for some time by a similar case involving construction under the Federal-Aid Highways Act. D. R. Smalley & Sons v. United States, 372 F.2d 505, 178 Ct.Cl. 593, cert. denied, 389 U.S. 835, 88 S.Ct. 45, 19 L.Ed.2d 97 (1967). The Smalley case is squarely in point. [Emphasis supplied.] [468 F.2d at 924, 199 Ct.Cl. at 710.] We also stated in that case: Remaining for disposition are plaintiff’s contentions that it has third-party beneficiary rights arising principally from Article IX of the Contract of Sale between plaintiff and the Commission. This is so, plaintiff says, because defendant approved Article IX which constitutes this specific project as one eligible for financial assistance and which states that funds have been reserved by the Government and “will be available to effect payment and performance by the Purchaser.” [Emphasis supplied.] This, plaintiff alleges, shows an intention in the Contract of Sale to create a body of enforceable rights in plaintiff under that provision which was inserted for the benefit of plaintiff as well as to benefit the Monroe Housing Commission. Plaintiff asserts that it is only upon the guarantees of payment by defendant that contractors and developers ordinarily undertake projects of the type here involved. Plaintiff places heavy reliance on Hebah v. United States, 428 F.2d 1334,192 Ct.Cl. 785 (1970), which recognized a third-party beneficiary relationship in certain circumstances where performance of a promise in a contract will benefit a person other than the promisee. * * * Further, section 510 of the Consolidated Annual Contributions Contract specifically bars third-party actions against the Government except by the bondholders, which would seem to preclude a Hebah-type action under that contract. Plaintiff seeks to enforce its Contract of Sale with the Commission upon defendant, which is not a party to that contract. The language of Article IX, supra, in the Contract of Sale speaks in terms of defendant making funds available “to effect payment and performance by the purchaser hereunder.”" }, { "docid": "6763889", "title": "", "text": "less than a full month. As a general proposition, although a lease may concern and convey a property interest, it is very much a contract, Keydata Corp. v. United States, 205 Ct.Cl. 467, 482, 504 F.2d 1115, 1123 (1974). The interpretation of the language of a contract is a question of law, not fact. See Fortec Constructors v. United States, 760 F.2d 1288, 1291 (Fed.Cir.1985); Hol-Gar Mfg. Corp. v. United States, 169 Ct.Cl. 384, 386, 351 F.2d 972, 973 (1965). Thus, because the parties’ dispute centers on the interpretation of the terms of the lease, the issue before the court can be viewed as one of law, which may properly be resolved by the court on summary judgment. When interpreting the language of a contract, or as in this case, a lease, a court must give reasonable meaning to all parts of the agreement and not render any portion meaningless, or interpret any provision so as to create a conflict with another provision of the agreement. See Fortec Constructors, 760 F.2d at 1292; United States v. Johnson Controls, Inc., 713 F.2d 1541, 1555 (Fed.Cir.1983). Brooklyn Waterfront Terminal Corp. v. United States, 117 Ct.Cl. 62, 84, 90 F.Supp. 943, 948 (1950), cert. den., 340 U.S. 931, 71 S.Ct. 493, 95 L.Ed. 672 (1951). The language of the agreement must be given the meaning which would be derived from the agreement by a “reasonably intelligent person acquainted with the contemporaneous circumstances.” Hol-Gar Mfg. Corp., 169 Ct.Cl. at 388, 351 F.2d at 975. In the instant case, the original lease was for a five-year term, and the lease extension was for a one-year term. The holdover period for which the plaintiff claims monies are due occurred after the expiration of the lease extension period. Paragraph 38, the holdover provision, makes it quite clear that during a holdover tenancy, the lease continues in effect on a month to month basis, although rent is to be paid “monthly in arrears on a prorated basis....” The lease provision included in the original lease agreement is paragraph 3, which reads as follows: The Government shall pay the" }, { "docid": "9697152", "title": "", "text": "year for which authorized.... ****** (4) Sums apportioned to a Federal-aid system for any fiscal year shall be deemed to be expended if a sum equal to the total of the sums apportioned to the State for such fiscal year and previous fiscal years is obligated. Any Federal-aid highway funds released by the payment of the final voucher or by the modification of the formal project agreement shall be credited to the same class of funds, primary, secondary, urban, or interstate, previously apportioned to the State and be immediately available for expenditure. These provisions indicate that once funds are apportioned to a State, they are available for the State’s exclusive use and if not used may be carried over for one additional fiscal year if Interstate funds or for three additional years if non-interstate funds. State of Maine v. Goldschmidt, 494 F.Supp. 93, 95 (D.Me.1980). Thus, the Federal government loses control of funds once apportioned to a State, 23 U.S.C. § 118(b), and only that State can determine how those funds are spent. Other courts that have examined the Highway Act funding procedure have found that the Highway Act funds are State funds in the nature of a gift to the State. In D.R. Smalley & Sons v. United States, 372 F.2d 505 (Ct.Cl.1967), cert. denied, 389 U.S. 835, 88 S.Ct. 45, 19 L.Ed.2d 97 (1967), the plaintiff sought to recover damages from the United States and the State of Ohio on the basis of a contract between Ohio and the plaintiff for construction of a highway under the Highway Act. The Court of Claims dismissed the case as to the United States because of the lack of privity of contract. The Court rejected the plaintiff’s theory that liability could be imposed on the United States because it required the highway construction to meet certain standards for reimbursement by the United States under the Highway Act. The Court reasoned that The National Government makes many hundreds of grants each year to the various states, to municipalities, to schools and colleges and to other public organizations and agencies for many kinds" }, { "docid": "9494982", "title": "", "text": "Compare D.R. Smalley & Sons, Inc. v. United States, 178 Ct.Cl. 593, 597-98, 372 F.2d 505, 507, cert. denied, 389 U.S. 835, 88 S.Ct. 45, 19 L.Ed.2d 97 (1967). Moreover, the parties’ mutual intent to enter a contract is demonstrated by each party’s dependency on the other’s compliance with the terms of the grant agreement. From NSF’s perspective, the terms and conditions of the grant agreement would likely result in NSF paying for much of the grant work before plaintiff published its research results, identified the subject matter of the royalty-free license, and relinquished control over equipment it purchased with grant funds. Hence, unless NSF could force plaintiff to comply with the terms of the agreement, it could not be assured that it would receive the anticipated benefits of its investment. From plaintiffs perspective, the grant terms establish an objective standard for assessing the allowability of incurred costs, i.e., “[t]he allowability of costs ... for work performed under this grant ... shall be determined in accordance with the applicable Federal cost principles in effect on the effective date of the grant and the terms of the grant.” If plaintiff could not hold NSF to this standard and NSF could unilaterally modify or simply refuse to follow that standard, then plaintiff could not be assured that its investment of time and money on the approved research project would be reimbursed by the United States. Hence, given the terms and conditions of the grant agreement, it appears that the parties intended to provide a mechanism by which to assure each other’s compliance with the grant terms. A binding contract is a highly efficient mechanism to assure such compliance because it makes an independent decision maker, a court, available to review disputes between the parties within the context of established legal precedent. Viewing the grant terms and conditions in their entirety, the court concludes that the parties intended to be bound contractually. V. In its motion to dismiss, defendant argues that even if the terms and conditions of the grant agreement satisfy the traditional requirements for a binding contract with the United States," }, { "docid": "3091392", "title": "", "text": "used in determining HAP contract rent adjustments. C. Plaintiffs contend that given the nature of the relationships created in HUD’s two-tier contracting scheme, the PHAs were acting as HUD’s agents when they entered the second-tier HAP contracts with plaintiffs. Because plaintiffs entered contracts with HUD’s agents, plaintiffs argue, they should be deemed to be in privity of contract with HUD. But courts have analyzed analogous two-tier contracting arrangements wherein HUD contracted with a local housing authori ty and the housing authority in turn contracted with a project developer, and the courts uniformly have rejected the argument that the housing authority acted as HUD’s agent. See New Era Constr. v. United States, 890 F.2d 1152 (Fed.Cir.1989); Marshall N. Dana Constr., Inc. v. United States, 229 Ct.Cl. 862 1982 WL 26554 (1982); G-Lam Corp. v. United States, 227 Ct. Cl. 764, 1981 WL 21446 (1981); Correlated Development Corp. v. United States, 214 Ct.Cl. 106, 556 F.2d 515 (1977); Housing Corp. of America v. United States, 199 Ct.Cl. 705, 468 F.2d 922 (1972); D.R. Smalley & Sons, Inc. v. United States, 178 Ct.Cl. 593, 372 F.2d 505, cert, denied, 389 U.S. 835, 88 S.Ct. 45, 19 L.Ed.2d 97 (1967). Housing Corp. involved HUD’s use of a two-tier contracting arrangement to secure construction of low-income housing projects. Therein, HUD entered a contract with a local housing commission which in turn entered a contract with a project developer for the development, construction, and sale of a low-income housing project. In the first-tier contract between HUD and the housing commission, HUD agreed to fund up to 90 percent of the project costs. The second-tier contract between the housing commission and the project developer required HUD’s approval, and HUD apparently had the authority to approve drawings, plans, and specifications and all changes in the contract price in excess of $4,000. Housing Corp., 199 Ct. Cl. at 708, 468 F.2d at 923-24. Article IX of the second-tier contract described the requirement for HUD’s approval as follows: ARTICLE IX. Approval by Government. The approval of this Agreement by the Government signifies that the undertaking by the Purchaser of the" }, { "docid": "21287800", "title": "", "text": "liability imposed on the Government by an implied in fact contract when it acts as a sovereign. Under such circumstances it has not consented to be sued. We followed the Smalley case in Housing Corp. of America v. United States, 199 Ct.Cl. 705, 468 F.2d 922 (1972), where we held: \"The contract here in issue is one of many pursuant to which the Federal Government subsidizes projects of state and local authorities for the public betterment. The United States, however, does not make itself a party to the contracts relating to said projects but obligates itself by separate agreements, as here, to local authorities for the funding of those projects it approves. The significance of that approval is spelled out here in Article IX. This does not create an express or implied contract between plaintiff and defendant nor does it make the Commission defendant’s agent through HUD. HUD’s actions were performed in defendant’s capacity as sovereign. This principle has been settled for some time by a similar case involving construction under the Federal-Aid Highways Act. D. R. Smalley & Sons v. United States, 178 Ct.Cl. 593, 372 F.2d 505, cert. denied, 389 U.S. 835 (1967). The Smalley case is squarely in point.” 199 Ct.Cl. at 710, 468 F.2d at 924. Also, see the order of this court in Peoples Apparel, Ltd. v. United States, post at 515, which follows and reaffirms our decision in the Smalley case. We follow the above decisions of our court in deciding the instant case. We hold that the FHA was acting in a sovereign capacity in making the grant and loan to the Village and in requiring the project to be constructed in accordance with the wishes of Congress. Consequently, there was no implied in fact contract that imposed liability on the Government for plaintiffs cost over-run. We reject plaintiffs claim of a contract implied in fact for the further reason that the various elements of such a contract have not been proven. We said in Somali Development Bank v. United States, 205 Ct.Cl. 741, 508 F.2d 817 (1974): \"/i is fundamental that to" }, { "docid": "9494981", "title": "", "text": "work on the grant project. Because plaintiff ultimately commenced work under the grant, there was an offer and acceptance under either alternative. As to consideration, the terms of the offer and acceptance, which are contained in the solicitation, the “Grant General Conditions,” and the other terms and conditions specified by NSF in the award, provide for the passage of consideration between the parties. As explained above, plaintiff would receive from NSF funding for its research and NSF in turn would receive from plaintiff, inter alia, publication of plaintiffs research results, title to any equipment plaintiff selected and then purchased with grant funds, and a royalty-free license to the intellectual property resulting from the research, including a license under a patent. This royalty-free license potentially had significant economic value because without a patent license, NSF would have been vulnerable to a damage suit under 28 U.S.C. § 1498 in the event NSF practiced the patented invention. Because significant consideration passed to the government, the grant agreement cannot be characterized as a governmental gift or mere gratuity. Compare D.R. Smalley & Sons, Inc. v. United States, 178 Ct.Cl. 593, 597-98, 372 F.2d 505, 507, cert. denied, 389 U.S. 835, 88 S.Ct. 45, 19 L.Ed.2d 97 (1967). Moreover, the parties’ mutual intent to enter a contract is demonstrated by each party’s dependency on the other’s compliance with the terms of the grant agreement. From NSF’s perspective, the terms and conditions of the grant agreement would likely result in NSF paying for much of the grant work before plaintiff published its research results, identified the subject matter of the royalty-free license, and relinquished control over equipment it purchased with grant funds. Hence, unless NSF could force plaintiff to comply with the terms of the agreement, it could not be assured that it would receive the anticipated benefits of its investment. From plaintiffs perspective, the grant terms establish an objective standard for assessing the allowability of incurred costs, i.e., “[t]he allowability of costs ... for work performed under this grant ... shall be determined in accordance with the applicable Federal cost principles in effect on" }, { "docid": "9697153", "title": "", "text": "that have examined the Highway Act funding procedure have found that the Highway Act funds are State funds in the nature of a gift to the State. In D.R. Smalley & Sons v. United States, 372 F.2d 505 (Ct.Cl.1967), cert. denied, 389 U.S. 835, 88 S.Ct. 45, 19 L.Ed.2d 97 (1967), the plaintiff sought to recover damages from the United States and the State of Ohio on the basis of a contract between Ohio and the plaintiff for construction of a highway under the Highway Act. The Court of Claims dismissed the case as to the United States because of the lack of privity of contract. The Court rejected the plaintiff’s theory that liability could be imposed on the United States because it required the highway construction to meet certain standards for reimbursement by the United States under the Highway Act. The Court reasoned that The National Government makes many hundreds of grants each year to the various states, to municipalities, to schools and colleges and to other public organizations and agencies for many kinds of public works, including roads and highways. It requires the projects to be completed in accordance with certain standards before the proceeds of the grant will be paid. Otherwise the will of Congress would be thwarted and taxpayers’ money would be wasted. See Mahler v. United States, 306 F.2d 713, 716-722 (3rd Cir.1962), cert. denied, 371 U.S. 923, 83 S.Ct. 290, 9 L.Ed.2d 231. These grants are in reality gifts or gratuities. Id. at 507. Accord Somerville Technical Services v. United States, 640 F.2d 1276, 1280-81 (Ct.Cl.1981); Correlated Development Corp. v. United States, 556 F.2d 515, 522-23 (Ct.Cl.1977). Similarly, in State of Illinois v. Champaign Asphalt Co., slip op., No. S-Civ-73-216 (S.D.Ill. December 1, 1971), the Court held that the United States was not an indispensible party under Fed.R. Civ.P. 19(a) in a case where the State of Illinois sought to recover damages for bid-rigging on highway construction projects under the Highway Act. The Champaign Court relied on the Smalley Court’s holding that the federal funding under the Highway Act is a gift and that" }, { "docid": "14760012", "title": "", "text": "wsha was not immune from suit. In a later ruling it transferred the action against the federal defendants here. The court noted that the plaintiff was suing for $255,000 but that HUD had retained only $73,349 of the funds set aside for the project. Most of a possible recovery would have to come, therefore, not from funds controlled by HUD but from the United States Treasury. It was on that basis that the District Court made the transfer. In seeking to defeat the defendant’s motion for summary judgment, plaintiff makes arguments each of which has been rejected by recent decisions of this court involving similar, if not identical, facts and statutory schemes. First, it is settled that there is no privity of contract between the U.S. and a public housing contractor based on the U.S. Housing Act. Correlated Development Corp. v. United States, 214 Ct. Cl. 106, 112-13, 556 F.2d 515, 519 (1977); Housing Corp. of America v. United States, 199 Ct. Cl. 705, 709-10, 468 F.2d 922, 924 (1972). That the Federal Government has intimate control over a project, including prior approval of plans and costs, does not establish liability here for claims by a contractor. Correlated Development Corp., 214 Ct. Cl. at 117-18, 556 F.2d at 522-23; D.R. Smalley & Sons v. United States, 178 Ct. Cl. 593, 598, 372 F.2d 505, 507, cert. denied, 389 U.S. 835 (1967). Nor does this degree of involvement indicate an implied-in-fact contract enforceable against the United States. Aetna Casualty & Surety Co. v. United States, 228 Ct. Cl. 146, 153-54, 655 F.2d 1047, 1052 (1981); Somerville Technical Services v. United States, 226 Ct. Cl. 291, 296-97, 640 F.2d 1276, 1279-80 (1981). This is true even if the local agency is acting merely as a conduit for the federal funds. G-Lam Corp. v. United States, 227 Ct.Cl. 764 (1981). By funding and regulating programs designed for the public good the U.S. is acting in its role as a sovereign and the moneys promised are gifts or gratuities which do not establish any contractual obligation, express or implied, on the part of the" }, { "docid": "10310735", "title": "", "text": "a Delaware Corporation, hereinafter called the “Seller,” and the Monroe Housing Commission, Monroe, Michigan, hereinafter called the “Purchaser,” * * . This makes it rather clear who the parties are and defendant is not one of them. However, defendant’s signature of approval at the bottom of the document, plus Article IX quoted above, cause plaintiff to contend that defendant must be considered a party and to have waived its sovereignty. * * * [Emphasis supplied.] [468 F.2d at 924, 199 Ct.Cl. at 709.] The court held further in that case: The contract here in issue is one of many pursuant to which the Federal Government subsidizes projects of state and local authorities for the public betterment. The United States, however, does not make itself a party to the contracts relating to said projects but obligates itself by separate agreements, as here, to local authorities for the funding of those projects it approves. The significance of that approval is spelled out here in Article IX. This does not create an express or implied contract between plaintiff and defendant, nor does it make the Commission defendant’s agent through HUD. HUD’s actions were performed in defendant’s capacity as sovereign. This principle has been settled for some time by a similar case involving construction under the Federal-Aid Highways Act. D. R. Smalley & Sons v. United States, 372 F.2d 505, 178 Ct.Cl. 593, cert. denied, 389 U.S. 835, 88 S.Ct. 45, 19 L.Ed.2d 97 (1967). The Smalley case is squarely in point. [Emphasis supplied.] [468 F.2d at 924, 199 Ct.Cl. at 710.] We also stated in that case: Remaining for disposition are plaintiff’s contentions that it has third-party beneficiary rights arising principally from Article IX of the Contract of Sale between plaintiff and the Commission. This is so, plaintiff says, because defendant approved Article IX which constitutes this specific project as one eligible for financial assistance and which states that funds have been reserved by the Government and “will be available to effect payment and performance by the Purchaser.” [Emphasis supplied.] This, plaintiff alleges, shows an intention in the Contract of Sale to create" }, { "docid": "19045460", "title": "", "text": "the Use Agreement and the 2004 Renewal Contract — were incorporated by reference in plaintiff’s complaint. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (\"[Cjourts 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.”). . As in effect during the years in question, section 1437f(b) of Title 42 provided: \"The Secretary is authorized to enter into annual contribution contracts with public housing agencies pursuant to which such agencies may enter into contracts to make assistance payments to owners of existing dwellings units in accordance with this section.” 42 U.S.C. § 1437f(b) (2004). . See New Era Constr. v. United States, 890 F.2d 1152, 1154-55 (Fed.Cir.1989); Marshall N. Dana Constr., 229 Ct.Cl. at 863-64; G — Lam Corp. v. United States, 227 Ct.Cl. 764, 1981 WL 21446 (1981); Correlated Development Corp. v. United States, 556 F.2d 515 (Ct.Cl. 1977); Hous. Corp. of America v. United States, 468 F.2d 922, 924 (Ct.Cl. 1972); D.R. Smalley & Sons, Inc. v. United States, 372 F.2d 505 (Ct.Cl.), cert. denied, 389 U.S. 835, 88 S.Ct. 45, 19 L.Ed.2d 97 (1967); Nat’l Leased Hous. Ass’n, 32 Fed.Cl. at 458. Indeed, the Federal Circuit has generally refused to treat a third party as acting on behalf of an agency, for privity purposes, \"unless the contract contains a reasonably clear indication that the government intended to create an agency relationship and to permit [] suit.” Nat’l Leased Hous. Ass’n, 32 Fed.Cl. at 460 (citing United States v. Johnson Controls, Inc., 713 F.2d 1541, 1551 (Fed.Cir.1983)). . In St. Christopher Associates, the Federal Circuit rejected a contrary conclusion by the Fifth Circuit in Christopher Vill., L.P. v. Retsinas, 190 F.3d 310, 316 (5th Cir.1999), noting that the Federal Circuit had previously found that ruling to be void for lack of jurisdiction. St. Christopher Assocs., 511 F.3d at 1384 (citing Christopher Vill., L.P. v. United" }, { "docid": "15086418", "title": "", "text": "Smalley & Sons, Inc. v. United States, 372 F.2d 505, 178 Ct.Cl. 593, cert. denied, 389 U.S. 835, 88 S.Ct. 45, 19 L.Ed.2d 97 (1967). The contracts there, which were for highway construction, were between Smalley and the State of Ohio. The United States statutorily was authorized to reimburse Ohio for 90 percent of the State's costs, and exercised substantial control over the contracts and their performance. The contractor sued the United States for the losses it allegedly suffered in performing the contracts. It alleged that the involvement of the United States in the construction contracts created an express or implied contract between Smalley and the United States. The Court of Claims dismissed the suit. It held that the involvement of the United States in the financing and regulation of the State’s highway construction contract “were sovereign acts of the Government,” and that “the Federal Government is not liable for damages resulting from sovereign acts performed by it in its sovereign capacity.” 372 F.2d at 507. Noting that “[t]he National Government makes many hundreds of grants each year to the various states, to municipalities, to schools and colleges and to other public organizations and agencies for many kinds of public works, including roads and highways,” the court stated: “It would be farfetched indeed to impose liability on the Government for the acts and omissions of the parties who contract to build the projects, simply because it requires the work to meet certain standards and upon approval thereof reimburses the public agency for a part of the costs.” Id. The court pointed out that the United States was not a party to the construction contracts, which “were between the state and plaintiff,” and it concluded that “since there was no privity of contract, express or implied, between plaintiff [the construction company] and defendant [the United States], the defendant is not liable in contract for the damages claimed by plaintiff.” 372 F.2d at 508. The facts in Housing Corporation of America v. United States, 468 F.2d 922, 199 Ct.Cl. 705 (1972), closely paralleled those of the present case. There the plaintiff entered" }, { "docid": "11904753", "title": "", "text": "evidence of proposers ability to obtain the necessary financing. Be specific. Identify all sources. Describe the financial terms of each proposed financing source. Explain the financial arrangements you propose to use to finance any acquisition debt and to provide working capital. If funds are to be raised from individuals, the APPLICANT must submit sufficient documentation to demonstrate, in a compelling way, the availability and commitment of such funds. [Emphasis added.] Initially, the court notes that the interpretation of the terms of a government contract is a matter of law. Fortec Constructors v. United States, 760 F.2d 1288, 1291 (Fed.Cir.1985); Hol-Gar Mfg. Corp. v. United States, 169 Ct.Cl. 384, 386, 351 F.2d 972, 973 (1965). The language of a contract must be given the meaning that would be derived from the contract by a “reasonably intelligent person acquainted with the contemporaneous circumstances.” Id., 169 Ct.Cl. at 388, 351 F.2d at 975. Only when the language of a contract is ambiguous will factors outside of the contract terms be taken into account. See Sylvania Elec. Prods., Inc. v. United States, 198 Ct.Cl. 106, 126, 458 F.2d 994, 1005 (1972). When interpreting the language of a contract, a court must give reasonable meaning to all parts of the contract and not render portions of the contract meaningless. Fortec Constructors, 760 F.2d at 1292; United States v. Johnson Controls, Inc., 713 F.2d 1541, 1555 (Fed.Cir.1983). By analogy, the terms of a SOR, which is part of the government contracting process, should be interpreted in the same way. If the words of the SOR are clear, it is not the role of the court to second guess the plain meaning of those words by reaching beyond them for an interpretation. The words of the Part V Financial Operations & Financing, Phase II SOR, when read as a whole, make it perfectly clear that NPS intended that the evaluators use the “compelling evidence” standard to review the Phase II applicants’ description of funds raised, to meet the minimum $12 million equity position requirement. Part V reads: “If funds are to be raised from individuals, the APPLICANT" }, { "docid": "14760013", "title": "", "text": "intimate control over a project, including prior approval of plans and costs, does not establish liability here for claims by a contractor. Correlated Development Corp., 214 Ct. Cl. at 117-18, 556 F.2d at 522-23; D.R. Smalley & Sons v. United States, 178 Ct. Cl. 593, 598, 372 F.2d 505, 507, cert. denied, 389 U.S. 835 (1967). Nor does this degree of involvement indicate an implied-in-fact contract enforceable against the United States. Aetna Casualty & Surety Co. v. United States, 228 Ct. Cl. 146, 153-54, 655 F.2d 1047, 1052 (1981); Somerville Technical Services v. United States, 226 Ct. Cl. 291, 296-97, 640 F.2d 1276, 1279-80 (1981). This is true even if the local agency is acting merely as a conduit for the federal funds. G-Lam Corp. v. United States, 227 Ct.Cl. 764 (1981). By funding and regulating programs designed for the public good the U.S. is acting in its role as a sovereign and the moneys promised are gifts or gratuities which do not establish any contractual obligation, express or implied, on the part of the United States. D.R. Smalley & Sons, 178 Ct. Cl. at 597-98, 372 F.2d at 507. Second, this court has likewise rejected Marshall’s contention that the U.S. is liable to contractors because they are the intended third party beneficiaries of the contract between HUD and the local or state agency. See, e.g., Housing Corp. of America, 199 Ct. Cl. at 712-13, 468 F.2d at 925-26. No obligation to a third party is created even when the language in the contract provides, as does a provision in this Contributions Contract, that \"funds have been reserved by the Government and will be available to effect payment and performance by the Purchaser.” Id. On the contrary, the language of standard § 510 of the Contributions Contract ( acc ) specifically denies third parties a right of action against the U.S. See Correlated Development Corp., 214 Ct. Cl. at 114, 556 F.2d at 520. Plaintiffs other points are similarly without merit. Because there is no agency relationship between the U.S. and the local authority there is no vicarious liability of" }, { "docid": "13539063", "title": "", "text": "PCL entered with the government, provided for all of the events that PCL now offers to support its misrepresentation and fraud claims. PCL presents an argument in its misrepresentation claims that USBR was bound by either a preaward contract or by the executed contract itself, to certain standards of care primarily related to geologic investigation, structural design and contract administration procedures. It is the breach of these supposed contract requirements that forms the basis for several of the breach of contract counts in PCL’s complaint. Interpretation of a government contract is a matter of law. Grumman Data Sys. Corp. v. Dalton, 88 F.3d 990, 997 (Fed. Cir.1996) (citing Fortec Constructors v. United States, 760 F.2d 1288, 1291 (Fed.Cir. 1985)); Hol-Gar Mfg. Corp. v. United States, 169 Ct.Cl. 384, 386, 351 F.2d 972, 974 (1965). The language of the contract must be given the meaning that would be derived from the contract by a “reasonably intelligent person acquainted with the contemporaneous circumstances.” Metric Constructors, Inc. v. NASA 169 F.3d 747, 752 (Fed.Cir.1999) (quoting Hol-Gar Mfg. Corp. v. United States, 169 Ct.Cl. at 388, 351 F.2d at 975); see Cray Research, Inc. v. United States, 44 Fed.Cl. 327, 329-30 (1999). When interpreting the language of a contract, a court must give a reasonable meaning to all parts of the contract and not render portions of the contract meaningless. Fortec Constructors v. United States, 760 F.2d at 1292 (citing United States v. Johnson Controls, Inc., 713 F.2d 1541, 1555 (Fed.Cir. 1983)). To ascertain the intentions of the parties, the contract should be construed in its entirety “so as to harmonize and give meaning to all its provisions.” Thanet Corp. v. United States, 219 Ct.Cl. 75, 82, 591 F.2d 629, 633 (1979) (citing ITT Arctic Servs., Inc. v. United States, 207 Ct.Cl. 743, 751-52, 524 F.2d 680, 684 (1975); Northwest Marine Iron Works v. United States, 203 Ct.Cl. 629, 637, 493 F.2d 652, 657 (1974)). One of the cardinal rules of contract interpretation is that: [A]n interpretation which gives a reasonable meaning to all parts of an instrument will be preferred to one which" } ]

[ { "docid": "10328436", "title": "", "text": "defendant has deprived him of a right secured by the “Constitution and laws” of the United States. Second, the plaintiff must demonstrate that the defendant deprived him of this constitutional right under color of state law. Adickes v. S. H. Kress Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Under West Virginia law, the power of eminent domain may be conferred upon private corporations for the purpose of constructing works for the public utility. Specifically, public service corporations may take private land for the construction and maintenance of electric light lines. W.Va. Code § 54-1-2. By exercising the delegated power of eminent domain, a public service corporation acts as an agent of the state, Fork Ridge Baptist Cemetery Ass’n v. Redd, 33 W.Va. 262, 10 S.E. 405 (1889). Thus, we find that the power company, by availing itself of a state-granted right of entry onto Baldwin’s property, acted under color of state law. See Lucas v. Wisconsin Electric Power Co., 466 F.2d 638 (7th Cir. 1972), cert. denied, 409 U.S. 1114, 93 S.Ct. 928, 34 L.Ed.2d 696 (1973). While we find that Appalachian Power Company was acting under color of state law, we cannot find any federally protected right that has been violated. “[(Questions arising from the taking of property by condemnation for state purposes, are ordinarily matters for determination by the state courts.” Dixon v. West Virginia University Board of Governors, 427 F.2d 12, 13 (4th Cir. 1970). Where, as here, the representative of the state “ . . . has instituted proceedings under statutes calculated to ascertain and award just compensation, due process is satisfied . . Ballard Fish & Oyster Co. v. Glaser Construction Co., 424 F.2d 473, 475 (4th Cir. 1970); Elterich v. City of Sea Isle City, 477 F.2d 289 (3rd Cir. 1973); Green Street Association v. Daley, 373 F.2d 1, 7 (7th Cir. 1967). Accordingly, the judgment of the district court is affirmed. AFFIRMED." } ]

[ { "docid": "21366666", "title": "", "text": "the fund. The reason for the rule is plain. It is that a debtor cannot take advantage of its own neglect in that manner. Berkey v. Board of Commissioners, 48 Colo. 104, 110 P. 197, 20 Ann.Cas. 1109; Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766; Robertson v. Blaine County (C.C.A.) 90 F. 63, 47 L.R.A. 459; Hubbell v. City of South Hutchinson, 64 Kan. 645, 68 P. 52; Board of Commissioners v. Clarke & Courts, 12 Okl. 197, 70 P. 206; Fabric Fire Hose Co. v. Town of Afton, 95 Okl. 298. 219 P. 680; Rogers v. City of Omaha, 82 Neb. 118, 117 N.W. 119; Stockholders’ Inv. Co. v. Town of Brooklyn, 216 Iowa, 693, 246 N.W. 826; J. H. Tillman Co. v. City of Seaside, 145 Or. 239, 25 P.(2d) 917. Since the requisite administrative steps were not taken to provide the fund with which to pay these obligations in full, the statute of limitations is unavailable, The remaining question is whether plaintiff and interveners are entitled to recover interest on their bonds and coupons after maturity- We think the answer reposes in the decision of the Supreme Court of Colorado in which it is held that the statute designates the specific fund out of which the obligations are payable; that it authorizes special assessments for the payment of the principal and coupons, but makes no provision for interest after their due date and that bond holders must be held to have acquired their bonds and coupons with that under standing. Thomas v. Henrylyn Irrigation Dist., supra; Heath v. Green City Irrigation Dist., supra; North Denver Municipal Irrigation Dist. v. Heath, 91 Colo. 210, 13 P.(2d) 1116. It is said that the rule has no application if the default in payment is due t0 a failure to make the required levies. The argument is unmindful of the fact that in the last case cited no levy had been made and the action was one in mandamus to compel board of county commissioners to make it, yet the rule was applied without qualification" }, { "docid": "16437391", "title": "", "text": "term “undepreciated value” until the district court has been given an opportunity to pass on its significance. 2. Sushi Deli-SDH Lease Article 17 of the Sushi Deli-SDH lease provides, in pertinent part: All awards for the taking of any part of the premises or any payment made under the threat of the exercise of eminent domain shall be the property of both the Landlord and the Tenant in proportion to the respective possessory interests to the Premises.... The district court apparently accepted the argument posited by SDH, namely that, despite the lease provision, Sushi Deli would not be entitled to any portion of the condemnation settlement unless the settlement was structured so as to specify the precise amount to which Sushi Deli was entitled. That position fundamentally misunderstands the precedent in the field of eminent domain. It is well-established that when the government exercises its power of eminent domain, it compensates the people who have possessory interests in the seized land under the so called “undivided fee rule.” Victor P. Goldberg, Thomas W. Merrill, & Daniel Unumb, Bargaining in the Shadow of Eminent Domain: Valuing and Apportioning Condemnation Awards Betiveen Landlord and Tenant, 34 U.C.L.A. L. Rev. 1083, 1092-93 (April 1987). The “undivided fee rule” essentially operates by permitting the governmental authority to condemn property by providing just compensation, then allowing the respective interest holders to apportion the award among themselves, either by contract or judicial intervention. See, e.g., Burkhart v. United States, 227 F.2d 659, 662(9th Cir.1955) (“Usually, the courts treat the [eminent domain] proceeding for the division of proceeds as one of inter-pleader, where the government deposits the just compensation for the whole parcel and the landlord and tenant come in as claimants.”); Vivian v. Board of Trustees, 152 Colo. 556, 383 P.2d 801, 803 (Colo.1963) (“Once the reasonable market value of property subject to eminent domain proceedings has been established, the apportionment of that amount among persons claiming an interest therein is a matter of no concern to the condemnor.”). Once the government provides just compensation for the condemned property, its role is at an end, because" }, { "docid": "1371232", "title": "", "text": "Denver, [140 Colo. 30,] 342 P.2d 674. In any event, we are here concerned with City action in the absence of any regulation whatever by the State of Colorado. Under these circumstances there is no interaction of state and local regulation. We have only the action or exercise of authority by the City. “The Colorado Supreme Court has considered the scope of the Colorado version of home rule in several other cases including Veterans of For Wars, etc. v. Steamboat Springs, 575 P.2d 835 (Colo.), Security Life and Accident Co. v. Temple, [177 Colo. 14,] 492 P.2d 63, and Four-County Met. C.I. Dist. v. Board of County Com’rs., [149 Colo. 284,] 369 P.2d 67. In the Four-County Metro case the court stated that the home rule cities in Colorado as to local matters had the complete authority.” In other words, municipal policy exercised by a Home Rule City in Colorado is the equivalent of “state action” when exercised in connection with municipal affairs. In view of the fact that the state of Colorado has specifically authorized a city to acquire and operate a municipal airport and that such acquisition and operation “are hereby declared to be public, governmental functions, exercised for a public purpose and matters of public necessity, ... ”, complete sovereignty has been granted by the Constitution to Home Rule Cities and the Court is satisfied that the City of Pueblo in its dealings with plaintiff and the other fixed base operators was acting in a governmental and not in a proprietary capacity. The Pueblo Airport is located outside the territorial limits of the City of Pueblo. The plaintiff contends: “Since the airport is outside the corporate limits, when Pueblo operates the airport it is not exercising home rule authority.” This contention is without merit. In 1931, the legislature authorized cities “to acquire, establish, construct, own, control, lease, accept, improve, maintain, operate, and regulate airports and landing fields for the use of airplanes and other aircraft either within or without such municipalities ....” 1931 S.L. p. 788; C.R.S. 1973, § 41-4-201. In 1945, the state legislature in authorizing" }, { "docid": "15154542", "title": "", "text": "Inc., 457 F.2d 589, 592 (10th Cir. 1972). The court’s instruction on estoppel was correct. See Boddie v. Bond, 154 N.C. 359, 70 S.E. 824 (1911); Walker v. Philadelphia Life Ins. Co., 127 F.Supp. 26, 30 (E.D.N.C. 1954). We disagree with ATC’s contention that in its instruction on damages the court gave the jury a license to speculate. It is well settled that the difficulties in assessing damages do not preclude an injured party from recovering compensation. See Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251, 265, 66 S.Ct. 574, 90 L.Ed. 652 (1945). The judgment of the district court is affirmed. . ATC has made a somewhat elaborate and well structured argument based on the applicability of the limitations of the Colorado interest statute. 1973 C.R.S. 5-12-102. Hays v. Ar-buckle, 72 Colo. 328, 211 P. 101 (1922) is relied on for the proposition that the law of the forum applies to the award of interest. United also cites North Drive-In Theatre Corp. v. Park-in Theatres, Inc., 248 F.2d 232 (10th Cir. 1957), wherein this court took an expansive view of Hays. Cf. Stemple v. Phillips Petroleum Co., 430 F.2d 178 (10th Cir. 1970), and see also Anderson-Thompson, Inc. v. Logan Grain Co., 238 F.2d 598, 602 (10th Cir. 1956). Unquestionably under Colorado law the judicial award of interest is governed by the statute. It does not come from common law. See Hendrie v. Board of County Commissioners, 153 Colo. 432, 442, 387 P.2d 266, 271 (1963). It is idle, however, for us to speculate on whether Colorado allows recovery of prejudgment interest on an unliquidated sum in a breach of contract action since no such claim is made here. . See also Denver Truck Exch. v. Perryman, 134 Colo. 586, 307 P.2d 805 (1957); Gossard v. Gossard, 149 F.2d 111 (10th Cir. 1945); Baxter v. Beckwith, 25 Colo.App. 322, 137 P. 901 (1913); Ehrenzweig, Conflict of Laws 467-68 (1962). . See also Carl Beasley Ford, Inc. v. Burroughs Corp., 361 F.Supp. 325 (E.D.Pa.1973), aff’d in unpub. op., 493 F.2d 1400 (3rd Cir. 1974) (upon revocation of acceptance of" }, { "docid": "11997797", "title": "", "text": "in the way of damages for the tortuous taking and detention of money or property.” Bankers Trust Co. v. International Trust Co., 108 Colo. 15, 113 P.2d 656, 665. And, following Colorado law, we have sustained the power of a court of equity in the exercise of its sound discretion to allow interest upon equitable considerations, even though it could not be recovered by law. Gaskins v. Bonfils, 10 Cir., 79 F.2d 352. We have said rather dogmatically that “interest may not be allowed on an unliquidated claim.” Grand River Dam Authority v. Jarvis, 10 Cir., 124 F.2d 914, 918. See also Sauls-bury Oil Co. v. Phillips Petroleum Co., 10 Cir., 142 F.2d 27, 40. But, courts now generally allow interest on unliquidated claims “according to their concept of the demands of justice and practicality.” Funkhouser v. J. B. Preston Co., 290 U.S. 163, 54 S.Ct. 134, 136, 78 L.Ed. 243. It is given or withheld in the discretion of the chancellor “in response to considerations of fairness.” Board of Commissioners of Jackson County v. United States, 308 U.S. 343, 352, 60 S.Ct. 285, 289, 84 L.Ed. 313. And see Brown v. Home Development Co., 129 N.J.Eq. 172, 18 A.2d 742; Meyers v. Texas Co., 6 Cal.2d 610, 59 P.2d 132; John Agnew Co. v. Board of Education of City of Paterson, 83 N.J.Eq. 49, 89 A. 1046; McCormick on Damages, p. 206-233. Section 156 Restatement of Law—Restitution, cited by the Colorado court in the Banker’s Trust Co. case, supra, provides extensive guides for the application of this equitable concept. It states that: “a person who has a duty to pay the value of a benefit which he has received, is also under a duty to pay interest upon such value from the time he committed a breach of duty in failing to make restitution if, and only if: (a) the benefit consisted of a definite sum of money, or (b) the value of the benefit can be ascertained by mathematical calculation from the terms of an agreement between the parties or by established market prices, or (c) payment of" }, { "docid": "4106540", "title": "", "text": "San Francisco Charter. Wo inquire first as to the applicability of the statutory authorization for the reason that the existence of such authorization is material to other questions presented by this case. . See 49 U.S.C.A. § 642; also, People v. Western Air Lines, Inc., 42 Cal.2d 621, 268 P.2d 723. . City of Wichita v. Clapp, 125 Kan. 100, 263 P. 12, 63 A.L.R. 478; Dysart v. City of St. Louis, 321 Mo. 514, 11 S.W. 2d 1045, 62 A.L.R. 762; City of Ardmore v. Excise Board, 155 OM. 126, 8 P.2d 2; State ex rel. City of Walla Walla v. Clausen, 157 Wash. 457, 289 P. 61; City and County of Denver v. Board of Commissioners, etc., 113 Colo. 150, 156 P.2d 101. . T.W.A. urges that the airport is not a public utility and therefore not subject to regulation by the Commission, that even if it be subject to regulation the Commission has not lawfully exercised its regulatory power in that there has been no finding after hearing that the contract rate was excessive and finally that the terms of the Commission’s resolution exempted the subject contract. The resolution provided that the rates prescribed were adopted “except as otherwise provided, or amended by agreement.” . Cf. Home Telephone & Telegraph Co. v. City of Los Angeles, 211 U.S. 265, 29 S.Ct. 50, 53 L.Ed. 176. . Pinney & Boyle Co. v. Los Angeles Gas, etc., Corp., 168 Cal. 12, 141 P. 620, L.R.A.1915C, 282; Law v. Railroad Comm., 184 Cal. 737, 195 P. 423, 14 A.L.R. 249; Market St. R. Co. v. Pac. Gas & Elec. Co., D.C.N.D.Cal.1925, 6 F.2d 633, appeal dismissed 271 U.S. 691, 46 S.Ct. 487, 70 L.Ed. 1154; Sutter Butte Canal Co. v. Railroad Comm., 202 Cal. 179, 259 P. 937, affirmed 279 U.S. 125, 49 S.Ct. 325, 73 L.Ed. 637; Midland Realty Co. v. Kansas City Power & Light Co., 300 U.S. 109, 57 S.Ct. 345, 81 L.Ed. 540, rehearing denied 300 U.S. 687, 57 S.Ct. 504, 81 L.Ed. 888; Union Dry Goods Co. v. Georgia Public Service Corp., 248 U.S. 372," }, { "docid": "15911231", "title": "", "text": "a security interest in the Jaguar, nor has he ever listed the Jaguar as an asset on a credit application. In his Complaint, the Trustee asserts that the Defendant has in his possession certain property belonging to the estate, namely a one-half interest in a 1956 Jaguar. The question is, does the property belong to the estate? 11 U.S.C. § 542 provides for turnover to the trustee of property (or the value of property) that the trustee may use, sell or lease under § 363. 11 U.S.C. § 363(b) provides that the trustee, after notice and hearing may use, sell or lease property of the estate. 11 U.S.C. § 541(a)(1) refers to property of the estate as being “all legal or equitable interest of the debtor in property as of the commencement of the case”. In looking at these sections this Court would find, as did the court In the Matter of Douglas, 10 B.R. 283, 4 C.B.C. 533 (Bkrtcy.D.Neb.1981) that if the debtor does not have a right to possess or use the property at the commencement of the case, the trustee can not acquire such rights through a turnover action. The Trustee states that the only certificate of title that could be issued to this Jaguar would list the owners as Wolfram S. and Gregory P. Sommer. The Trustee states that the title is prima facie evidence that the ownership is as specified thereon. In a matter involving a new title issued after a repossession and the constitutionality of this issuance, the Court looked at the purpose of Colorado’s recording act. “It is a recording act by which prior interests can be ascertained and protected. See Lye [Loye] v. Denver United States Bank, 341 F.2d 402 (10th Cir.1965) Nevertheless the certificate of title is only prima facie evidence of all matters therein contained.” C.R.S.1963, 13-6-7(2). Federico v. Universal C.I.T. Credit Corp., 140 Colo. 145, 343 P.2d 830. See Nichols v. Tower Grove Bank, 362 F.Supp. 374, 378 (E.D.Mo.1973). Sifuentes v. Weed, Jr. 186 Colo. 109, 114, 525 P.2d 1157 (1974). (Emphasis added) In McCall v. Roper, 32 Colo.App." }, { "docid": "13498895", "title": "", "text": "Ed., Vol. 1, § 350; Cutler v. Huston, 158 U.S. 423, 15 S.Ct. 868, 39 L.Ed. 1040; Evers v. Watson, 156 U.S. 527, 533, 15 S.Ct. 430, 39 L.Ed. 520; Swift & Company v. United States, 276 U.S. 311, 326, 48 S.Ct 311, 72 L.Ed. 587; Toy Toy v. Hopkins, 212 U.S. 542, 548, 29 S.Ct. 416, 53 L.Ed. 644; The Amaranth, 2 Cir., 68 F.2d 893, 895; Foltz v. St. Louis & S. F. R. Co., 8 Cir., 60 F. 316, 318, 319. Trusts are within the exclusive jurisdiction of- courts of equity. See cases cited in Note 13, infra. See cases cited in Note 14, infra. Arthur v. Israel, 15 Colo. 147, 25 P. 81, 10 L.R.A. 693, 22 Am.St.Rep. 381; State v. Elkins, 84 Colo. 409, 270 P. 875, 877; Turner v. Kirkwood, 168 Okl. 80, 31 P.2d 935, 943; Tremayne v. City of St. Louis, 320 Mo. 120, 6 S.W.2d 935, 946; Lyon v. City of St. Louis, Mo., 178 S.W. 96; Cape Girardeau & T. B. T. R. Co. v. Southern Ill. & Mo. Bridge Company, 215 Mo. 286, 114 S.W. 1084; Sage v. Finney, 156 Mo.App. 30, 135 S.W. 996, 1000; Hunt v. Wright, Tex.Civ.App., 139 S.W. 1007, 1009; Morgan v. Morgan, 171 Ark. 173, 283 S.W. 979, 980; Le Goaster v. Lafon Asylum, 159 La. 855, 106 So. 329; Hafey v. Hafey, 57 N. D. 381, 222 N.W. 256, 259; Todd v. Moore, 205 Ala. 451, 88 So. 447, 449; Scheper v. Scheper, 125 S.C. 89, 118 S.E. 178, 184; Kile v. Town of Yellowhead, 80 Ill. 208; People v. Raquette Falls Land Co., 100 Misc. 601, 166 N.V.S. 474. Wilson v. Union Electric Light & Power Co., 8 Cir., 59 F.2d 580, 583; Davis v. Wakelee, 156 U.S. 680, 689-691, 15 S.Ct. 565, 39 L.Ed. 578; First State Bank of Strasburg v. Schmaltz, 61 N.D. 150, 237 N.W. 644, 646, 647; Denver City Irrigation & Water Co. v. Middaugh, 12 Colo. 434, 21 P. 565, 566, 567, 13 Am.St.Rep. 234; Bledsoe v. Seaman, 77 Kan. 679, 95 P. 576, 578, 579; Freeman" }, { "docid": "12281571", "title": "", "text": "belief and way of life, which will inevitably occur with the continued presence of the ski resort ... a direct and negative impact upon our religious practices [will result]. The destruction of these practices will also destroy our present way of life and culture. . Pillar of Fire v. Denver Urban Renewal Authority, 181 Colo. 411, 509 P.2d 1250 (1973), is not to the contrary. In Pillar of Fire, the plaintiff church sought to enjoin the condemnation by an urban renewal project of its first permanent church building. The plaintiff alleged that its members revered the building for its historical and symbolic meaning in the birth of their sect. The Colorado Supreme Court held that the plaintiff was entitled to a court hearing at which its interests could be weighed against those of the renewal authority. “(R)eligious faith and tradition,” said the court, “can invest certain structures and land sites with significance which deserves First Amendment protection.” 181 Colo, at 419, 509 P.2d at 1254. A governmental taking of privately-owned religious property, however, involves different considerations than does' a claimed First Amendment right to restrict the government’s use of its own land. . Four cases in addition to Sequoyah have considered free exercise claims seeking to restrict development of government land. In Badoni v. Higginson, 638 F.2d 172 (10th Cir.1980), cert. denied, 452 U.S. 954, 101 S.Ct. 3099, 69 L.Ed.2d 695 (1981), Navajo religious practitioners believed that the Rainbow natural bridge, a great arch of sandstone located in the Rainbow Bridge National Monument in Utah, was sacred. They complained that a government reservoir which had partially inundated the bridge had covered some of their gods and prayer sites, and that the noisy tourists who visited the bridge desecrated the site and made ceremonies impractical. As relief, the plaintiffs requested the court to order the government to lower the reservoir, to issue regulations controlling tourist behavior, and on appropriate notice, to close the monument to tourists so that ceremonies could be conducted. The Tenth Circuit affirmed a district court decision denying relief. The Tenth Circuit held that the government had a" }, { "docid": "3879102", "title": "", "text": "former case was sought and obtained were not general obligations of the irrigation district. They were special obligations for local improvements payable out of moneys produced by special assessments against the lands within the district to be benefited. Interstate Trust Co. v. Montezuma Valley Irr. Dist., 66 Colo. 219, 181 P. 123; Thomas v. Henrylyn Irr. Dist., 79 Colo. 636, 247 P. 1059; Board of Commissioners of Adams County v. Heath, 87 Colo. 204, 286 P. 107; In re Green City Irr. Dist., 91 Colo. 202, 13 P.2d 1113; Henry Wilcox & Son v. Riverview Drainage Dist., 93 Colo. 115, 25 P.2d 172; Divide Creek Irr. Dist. v. Hollingsworth, 10 Cir., 72 F.2d 859 96 A.L.R. 937; Denver Greeley Valley Irr. Dist. v. McNeil, supra. The statutes of the State of Colorado governing the issuance of such bonds and interest coupons and providing for the method of their payment authorize annual levies upon the lands by the acre unit in the district to be benefited, the levies to be such in' amount and rate as is necessary to provide money equal to the bonds ánd coupons as they mature. And when such levies have been made and completed, no authority exists in the laws of the' state for the making of additional or cumulative levies for that purpose. Interstate Trust Co. v. Montezuma Valley Irr. Dist., supra; Thomas v. Henrylyn Irr. Dist., supra; Henry Wilcox & Son v. Riverview Drainage Dist., supra. The remedy of mandamus in the United States courts is ancillary. The writ is issuable only after the right has ripened into judgment. Its function is to compel the discharge of a duty which the officers to whom it is directed are empowered by law to perform. It does not confer new authority. It cannot be invoked to compel the exertion of power which does not exist otherwise. It can serve to coerce the levying of special taxes only when taxation of that kind is authorized by law. And changing the evidence of the obligation of the district from bonds and interest coupons to judgment, or stated otherwise," }, { "docid": "15154543", "title": "", "text": "this court took an expansive view of Hays. Cf. Stemple v. Phillips Petroleum Co., 430 F.2d 178 (10th Cir. 1970), and see also Anderson-Thompson, Inc. v. Logan Grain Co., 238 F.2d 598, 602 (10th Cir. 1956). Unquestionably under Colorado law the judicial award of interest is governed by the statute. It does not come from common law. See Hendrie v. Board of County Commissioners, 153 Colo. 432, 442, 387 P.2d 266, 271 (1963). It is idle, however, for us to speculate on whether Colorado allows recovery of prejudgment interest on an unliquidated sum in a breach of contract action since no such claim is made here. . See also Denver Truck Exch. v. Perryman, 134 Colo. 586, 307 P.2d 805 (1957); Gossard v. Gossard, 149 F.2d 111 (10th Cir. 1945); Baxter v. Beckwith, 25 Colo.App. 322, 137 P. 901 (1913); Ehrenzweig, Conflict of Laws 467-68 (1962). . See also Carl Beasley Ford, Inc. v. Burroughs Corp., 361 F.Supp. 325 (E.D.Pa.1973), aff’d in unpub. op., 493 F.2d 1400 (3rd Cir. 1974) (upon revocation of acceptance of defective computer which failed to work during whole year when in plaintiff’s possession, plaintiff may recover as consequential damages interest on third party loan that defendant knew it would take out to finance purchase). Cf. Weiner v. 222 East Chestnut Street Corp., 303 F.2d 630 (7th Cir. 1962) (upon failure of defendant’s appeal from zoning variance allowed plaintiff, plaintiff allowed to recover as part of supersedeas damages the increased interest costs resulting from delay caused by the appeal). . In addition, the court ruled that it would sustain objections to questions whether or not ATC had used its best efforts, and it excluded questions intended to elicit illustrations of the meaning of “best efforts” from Mr. Wheat’s own experience. . In Republic Technology Fund, Inc. v. Lionel Corporation, 345 F.Supp. 656 (S.D.N.Y.1972), aff d in part and rev’d in part, 483 F.2d 540 (2d Cir. 1973), cert. denied, 415 U.S. 918, 94 S.Ct. 1416, 39 L.Ed.2d 472 (1974), relied on by ATC, the expert testimony was as general as the testimony offered here. The expert" }, { "docid": "6786649", "title": "", "text": "to create a security interest in the property which he later seeks to claim as exempt, such a ruling would not be contrary to the liberal construction which must be given exemption laws as announced in Haas v. DeLaney, D.C.Colo.1958, 165 F.Supp. 488.- The next question is whether or not the mortgage lien may be transferred to the proceeds from the sale of the mortgaged property. (It has been held that a statutory provision such as CRS 77-13-3 did not, in itself, create a lien in exempt property; Johanson v. Rowland, 196 Iowa 724, 195 N.W. 358 (1923)). In Charnesky v. Urban, supra, it was held that since, by lawful process, cash was substituted for exempt property, equity would apply the mortgagee’s lien to the fund. Cf. 119 A.L.R. 467. Although Colorado courts apparently have had no occasion to make such a decision, it has been indicated that a favorable attitude towards equitable liens prevails in Colorado. In Mitchell v. Bowman, 10 Cir., 1941, 123 F.2d 445, it was held that an equitable lien was created in a fund where a contract contained a promise to pay for services rendered out of the fund. See also School Dist. No. 3 v. Central Savings Bank & Trust Co., 113 Colo. 487, 159 P.2d 361 (1945). And in American Investors Life Ins. Co. v. Green Shield Plan, Colo., 358 P.2d 473 (1961), the Colorado Supreme Court declared that equitable liens arise by contract, by conduct of the parties, upon a showing of unjust enrichment, or where one has funds which in equity he should not be allowed to retain. Perhaps the most comprehensive expression of the Colorado attitude concerning equitable liens is set forth in Valley State Bank v. Dean, 97 Colo. 151, 47 P.2d 924 (1935), wherein it was stated: “In Fallon v. Worthington, 13 Colo. 559, 568, 22 P. 960, 962, 6 L.R.A. 708, 16 Am.St.Rep. 231, we quoted with approval the following statement in 1 Jones, Liens, § 27: ‘An equitable lien arises either from a written contract, which shows an intention to charge some particular property with a" }, { "docid": "12791407", "title": "", "text": "destined for Penn Central carriage. Personal property taxes are paid by the railroad to the City and County of Denver. There is formidable authority for the proposition that in diversity cases, state law determines whether a corporation is subject to process in the state and that federal decisions are important only in ascertaining whether the state law is within constitutional bounds. Arrowsmith v. United Press International, 320 F.2d 219 (2 Cir., 1963). In Arrowsmith, the majority of the court, en banc, adopted the view originally propounded by Judge Goodrich of the Third Circuit, and overruled Jaftex Corp. v. Randolph Mills, Inc., 282 F.2d 508 (2 Cir. 1960), which had proclaimed a federal standard. Jaf-tex still commands the support of many commentators. We do not perceive this interesting procedural question to remain open in this circuit. In Walker v. General Features Corp., 319 F.2d 583, 585 (10 Cir. 1963), the court, speaking through Judge Hill, said that the question of “doing business” must “be resolved by application of state or local law rather than federal law.” Moreover, the resolution of the state-federal issue would not be necessitated in the instant case because we are not convinced that there is a basic distinction between Colorado’s liberal jurisdictional tests, Vandermee v. District Court, 164 Colo. 117, 433 P.2d 335 (1967); White-Rodgers v. District Court, 160 Colo. 491, 418 P.2d 527 (1966), and the landmark due process decisions of the Supreme Court, properly regarded also as expressions of federal amenability-to-process policy. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); International Shoe v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Upholding jurisdiction under Colorado’s long arm statute in Vandermee, the court found minimum contracts present when a foreign corporation, though neither maintaining a sales office nor conducting direct sales within Colorado, nevertheless had a distributor who “has set up channels of sales promotion and distribution in Colorado for the purpose of selling products in Colorado.” Likewise jurisdiction was" }, { "docid": "1371231", "title": "", "text": "both the Lafayette and Midcal cases. The Tenth Circuit concluded the two tests set forth in Midcal had been met. With reference to the Lafayette case, the Tenth Circuit opinion states: “The decision, considering the several opinions, was grounded on the fact that the action was not directed or authorized by the state pursuant to state policy to displace competition with regulation or monopoly public service.” (P. 708.) The Tenth Circuit opinion cites the pertinent provisions of Article XX, Section 6 of the Colorado Constitution which we have set forth above and then states: “The source of the authority of the City here is thus derived directly from the state constitution and is not a residual or delegated power. See the references in City and County of Denver v. Henry, [95 Colo. 582,] 38 P.2d 895, to the situations where an ordinance may even supersede a state statute as to matters of purely local concern. See also Service Oil Co. v. Rhodus, [179 Colo. 335,] 500 P.2d 807, and Davis v. City and County of Denver, [140 Colo. 30,] 342 P.2d 674. In any event, we are here concerned with City action in the absence of any regulation whatever by the State of Colorado. Under these circumstances there is no interaction of state and local regulation. We have only the action or exercise of authority by the City. “The Colorado Supreme Court has considered the scope of the Colorado version of home rule in several other cases including Veterans of For Wars, etc. v. Steamboat Springs, 575 P.2d 835 (Colo.), Security Life and Accident Co. v. Temple, [177 Colo. 14,] 492 P.2d 63, and Four-County Met. C.I. Dist. v. Board of County Com’rs., [149 Colo. 284,] 369 P.2d 67. In the Four-County Metro case the court stated that the home rule cities in Colorado as to local matters had the complete authority.” In other words, municipal policy exercised by a Home Rule City in Colorado is the equivalent of “state action” when exercised in connection with municipal affairs. In view of the fact that the state of Colorado has specifically" }, { "docid": "16437392", "title": "", "text": "Daniel Unumb, Bargaining in the Shadow of Eminent Domain: Valuing and Apportioning Condemnation Awards Betiveen Landlord and Tenant, 34 U.C.L.A. L. Rev. 1083, 1092-93 (April 1987). The “undivided fee rule” essentially operates by permitting the governmental authority to condemn property by providing just compensation, then allowing the respective interest holders to apportion the award among themselves, either by contract or judicial intervention. See, e.g., Burkhart v. United States, 227 F.2d 659, 662(9th Cir.1955) (“Usually, the courts treat the [eminent domain] proceeding for the division of proceeds as one of inter-pleader, where the government deposits the just compensation for the whole parcel and the landlord and tenant come in as claimants.”); Vivian v. Board of Trustees, 152 Colo. 556, 383 P.2d 801, 803 (Colo.1963) (“Once the reasonable market value of property subject to eminent domain proceedings has been established, the apportionment of that amount among persons claiming an interest therein is a matter of no concern to the condemnor.”). Once the government provides just compensation for the condemned property, its role is at an end, because “condemnors do not, as a practice, apportion the awards among the various interests involved.” Washington v. Farmers Union Grain Co., 908 P.2d 386, 389 (Was.Ct.App.1996). Rather, the apportionment is left to either the discretion of the court, or the allocation agreed upon by the parties in a contract. City of South San Francisco v. Mayer, 67 Cal.App.4th 1350, 1354, 79 Cal.Rptr.2d 704 (Ct.App.1998). Thus, the district court’s conclusion that there was “no basis” upon which Sushi Deli could pursue a portion of the condemnation settlement independent of the government’s award was erroneous. In fact, once the government settled on just compensation for the Hotel San Diego, Sushi Deli had every right to pursue its respective share through the apportionment process. Since parties are free to contract around the eminent domain rules, City of Vista, 919 P.2d at 156 (“[Eminent domain] rules may indeed be displaced by a provision of a lease to the contrary.”), Sushi Deli was entitled to seek a share of SDH’s condemnation settlement according to the terms of its lease. 3. Bonus" }, { "docid": "21366663", "title": "", "text": "pay the principal and interest as it becomes due. Section 21 (as amended by Laws 1907, p. 490, § 3). The Supreme Court of Colorado has construed these provisions of the statute several times, and that construction is binding here. Marine National Exchange Bank v. Kalt-Zimmers Manufacturing Co., 293 U.S. 357, 55 S.Ct. 226, 79 L.Ed. 427; Terry v. Midwest Refining Co. (C.C.A.) 64 F.(2d) 428; Ætna Life Ins. Co. v. Wertheimer (C.C.A.) 64 F.(2d) 438; Shell Petroleum Corporation v. Hollow (C.C.A.) 70 F.(2d) 811; Divide Creek Irrigation District v. Hollingsworth (C.C.A.) 72 F.(2d) 859, 96 A.L.R. 937; Knoell v. Frisco Lease, Inc. (C.C.A.) 78 F.(2d) 286. The levies authorized by the act are in the nature of special assessments for local improvements as distinguished from general taxes, and the liabilities of the district are a charge upon the lands rat-ably, with the acre as the unit. The assessments are determined upon the basis of benefits derived and the-bonds are payable exclusively out o of the fund derived from such assessments. Interstate Trust Co. v. Montezuma Irrigation Dist., 66 Colo. 219, 181 P. 123; Thomas v. Henrylyn Irrigation Dist., 79 Colo. 636, 247 P. 1059; Board of County Commissioners v. Heath, 87 Colo. 204, 286 P. 107; Heath v. Green City Irrigation Dist., 91 Colo. 202, 13 P.(2d) 1113; Wilcox & Son v. Riverview Drainage Dist., 93 Colo. 115, 25 P.(2d) 172. It is urged that the case of Michigan Trust Co. v. Otero Irrigation Dist., 76 Colo. 441, 232 P. 919, is to the contrary with respect to the bonds being payable solely from the special fund. There the court considered the act of 1915 authorizing the dissolution of an irrigation district if all of its debts have been liquidated or adequate security is accepted by its creditors. Sections 2035, 2036, 2037, C.L.1921. That statute makes no distinction between general debts and special obligations of the kind involved here. It provides that the right of dissolution depends upon payment of all valid indebtedness of the district or the giving of adequate security which is acceptable to the creditors, and" }, { "docid": "17298623", "title": "", "text": "Bank Inc., 138 Colo. 576, 336 P.2d 742, 747 (1959); American National Bank of Denver v. First National Bank of Denver, 130 Colo. 557, 277 P.2d 951, 954 (1954), Sherberg v. First National Bank of Englewood, 122 Colo. 407, 222 P.2d 782, 785 (1950). As established by the Colorado Supreme Court in Boettcher, “Thereafter the depositor has only a debt owing him from the bank — a chose in action, — not any specific money, or a right to any specific money.” Boettcher, 24 P. at 584 (emphasis added). Central argues the ownership element while ignoring the importance of the chose in action which is a necessary element of the relationship. The chose in action or claim against the bank retained by the depositor is a form of property recognized under Colorado law. In determining the scope of the power enjoyed by one possessing a chose in action, the Colorado Supreme Court did not stray from that view, long established at common law. The opinion in In Re Hamilton’s Estate, 113 Colo. 141, 154 P.2d 1008 (1945) explains: [A] chose in action is a property right, often described as intangible property. Incidents of ownership with regards to a chose in action are rights or privileges to deal with it as one may deal with his property ... The value of the chose in action consists of the sum total of the incidents of ownership. Id. at 1011; accord Anderson National Bank v. Luckett, 321 U.S. 233, 248, 64 S.Ct. 599, 607, 88 L.Ed. 692 (1944) (bank account is chose in action of the depositor against the bank and property subject to state control); 10 Am.Jur.2d Banks §§ 338, 339 at 300, 301 (1963). Here there is no showing of any alteration of the right of constructive possession to the chose in action, which constitutes the taxpayer’s property and which is subject to a federal tax lien. See Wingfield, 822 F.2d at 1475 (absent a final judgment divesting taxpayer of the interest in the property on which the IRS has filed notice of a tax lien, the taxpayer’s interest in the" }, { "docid": "15923365", "title": "", "text": "the parties to expect such changes. In re Punke, 68 B.R. 936, 943 (Bankr.N.D.Iowa 1987). 7. Does the Amended Colorado Exemption Statute have Retroactive, Retrospective or Prospective Application? a. Colorado Statutes are Presumed Prospective In accordance with Colo.Rev.Stat. § 2-4-202, Colorado statutes are presumed to be prospective in application. See, e.g., McCart v. Jordana (In re Jordana), 232 B.R. 469, 474 (10th Cir. BAP 1999) (in analyzing an Oklahoma statute, the Tenth Circuit held that a statute or its amendment will only have prospective effect unless it clearly provides otherwise). This is in recognition, in part, of the prohibition in the Colorado Constitution of retrospective laws. Colo. Const, art. II, § 11. Furthermore, the Constitutions of both the United States and the State of Colorado prohibit the taking of private property without just compensation. U.S. Const., amend. V and amend. XIV; Colo. Const, art. II, § 15. Balanced against these prohibitions, Colorado has long held that homestead and exemption laws are to be construed liberally. Colo. Const, art. 18, § 1; Case, 66 B.R. at 45; In re Reeder, 60 B.R. 312 (Bankr.D.Colo.1986). b. “Vested Rights” It is important to distinguish between retrospective application of a statute and retroactive application of a statute. A statute is applied retroactively if it operates on transactions or rights and obligations that occurred or existed before its effective date. Kuhn v. State, 924 P.2d 1053,1056 (Colo.1996); Ficarra v. Dep’t. of Regulatory Agencies, Div. of Ins., 849 P.2d 6, 11 (Colo.1993). Courts have held that retroactive application of a statute is not necessarily unconstitutional. Kuhn, 924 P.2d at 1056; Ficarra, 849 P.2d at 11. If a statute effects a change that is remedial in nature, it is permissible retroactive application of a statute. Kuhn, 924 P.2d at 1056. The reason that a remedial change is not an impairment of a vested fight is because there is no vested right in a remedy. Id. citing Continental Title Co. v. District Court In and For City and County of Denver, 645 P.2d 1310, 1315 (Colo. 1982). Retrospective legislation, on the other hand, “‘impairs vested rights acquired under" }, { "docid": "1246033", "title": "", "text": "process. Neither of these are inconsistent with bringing an action in federal court. . The First Circuit Court has recently remarked on the difficulty of “divining the legislative intent of a legislative body that keeps no record of floor debate.” Rhode Island Federation of Teachers v. Norberg, 630 F.2d 855, at 863 (1980). Considering the marked change that § 9-31 1 worked in Rhode Island’s legal policy, one is tempted to conclude that the General Assembly had come to agree with Justice Frankfurter that governmental immunity “is an anachronistic survival of monarchical privilege, and runs counter to democratic notions of the moral responsibility of the State.” Kennecott Copper Corp. v. State Tax Commission, 327 U.S. 573, 580, 66 S.Ct. 745, 748, 90 L.Ed. 862 (1946) (Frankfurter, J., dissenting). . With the possible exception of Art. 1 § 5: REMEDIES FOR WRONGS RIGHT TO JUSTICE-Every person within this state ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely and without purchase, completely and without denial; promptly and without delay; conformably to the law. . Alabama “Alabama shall never be made a defendant in any court of law or equity.'” Ala.Const. Art. 1 § 14. See Hutchinson v. Board of Trustees of University of Alabama, 288 Ala. 20, 256 So.2d 281 (1971). Arkansas “The State shall never be made a defendant in any of her courts.” Ark.Const. Art. 5 § 20. See State Highway Commissioner v. Lasley, 239 Ark. 538, 390 S.W.2d 443. Colorado -In two 1971 cases, the Colorado Supreme Court abolished sovereign and governmental immunities, effective July 1, 1972. See Proffitt v. State, 174 Colo. 113, 482 P.2d 965 (1971); Evans v. Board of County Commissioners, 174 Colo. 97, 482 P.2d 968 (1971). The legislature promptly reinstated much of the doctrines by statute. See Col.Rev.Stat. §§ 24-10-101 to -117. Delaware -Del.Const. Art. 1 § 9 empowers legislature to adopt regulations for suing the state. This is an absolute bar to suit unless immunity is" }, { "docid": "17298622", "title": "", "text": "be a lien in favor of the United States upon all property and rights to property” belonging to the person liable to pay the tax. 26 U.S.C. § 6321. Central argues that under Colorado law the ownership of the money in the bank account was transferred to Central when the taxpayer deposited the funds. Consequently the IRS through its levy could not reach or succeed to the taxpayer's property or the right to property. Central relies upon the general principle, established in Colorado law, that “the simple deposit of money on account is a general deposit, and transfers the ownership of the money to the bank.” Boettcher v. Colorado National Bank, 15 Colo. 16, 24 P. 582, 584 (1890), overruled on other grounds, 138 Colo. 576, 336 P.2d 742, 749 (1959). The bank and its customer enter into a debtor and creditor relationship which is generally recognized at common law. Id. 24 P. at 584; accord, Rivera v. Central Bank and Trust Co., 155 Colo. 383, 395 P.2d 11, 13 (1964); Cox v. Metropolitan State Bank Inc., 138 Colo. 576, 336 P.2d 742, 747 (1959); American National Bank of Denver v. First National Bank of Denver, 130 Colo. 557, 277 P.2d 951, 954 (1954), Sherberg v. First National Bank of Englewood, 122 Colo. 407, 222 P.2d 782, 785 (1950). As established by the Colorado Supreme Court in Boettcher, “Thereafter the depositor has only a debt owing him from the bank — a chose in action, — not any specific money, or a right to any specific money.” Boettcher, 24 P. at 584 (emphasis added). Central argues the ownership element while ignoring the importance of the chose in action which is a necessary element of the relationship. The chose in action or claim against the bank retained by the depositor is a form of property recognized under Colorado law. In determining the scope of the power enjoyed by one possessing a chose in action, the Colorado Supreme Court did not stray from that view, long established at common law. The opinion in In Re Hamilton’s Estate, 113 Colo. 141, 154 P.2d" } ]

[ { "docid": "11243053", "title": "", "text": "plaintiffs Bivens claim, it is well settled that sovereign immunity will not bar damage actions against federal officials who have been sued in their individual capacities for violation of a plaintiff’s constitutional rights. Id. However, a Bivens action may be maintained against a defendant only in his or her individual capacity, and not in his or her official capacity. See Ecclestiastical Order of the Ism of Am, Inc. v. Chasin, 845 F.2d 113, 116 (6th Cir.1988). It follows that in order for the plaintiff to bring the defendants before the court in their individual capacities, the ordinary requirements for exercise of in personam jurisdiction are fully applicable. See Griffith v. Nixon, 518 F.2d 1195 (2d Cir.), cert. denied, 423 U.S. 995, 96 S.Ct. 422, 46 L.Ed.2d 369 (1975). Accordingly, where damages are sought through a Bivens claim, personal service, and not service by certified mail, is necessary to obtain jurisdiction over a defendant in his capacity as an individual. Micklus v. Carlson, 632 F.2d 227, 240-41 (3d Cir.1980). The failure, therefore, to perfect individual service is fatal to a Bivens action. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1987). Thus, the threshold question is whether the defendants were properly served in their individual capacities. Federal Rule of Civil Procedure 4(d)(1) requires personal service of a summons and complaint upon each individual defendant. Plaintiff would have had to accomplish personal service under Rule 4(d)(1) on the individuals and serve the United States accord ing to Rule 4(d)(5). Micklus, 632 F.2d at 240. Where money damages are sought from a public official in his individual capacity, such as in a Bivens action, service by certified mail under Rule 4(d)(5) is insufficient. See Relf, 511 F.2d at 808 n. 18; Micklus, 632 F.2d at 240. Thus, none of the defendants was properly served in their individual capacities. Micklus, 632 F.2d at 240; Kaiser v. Miller, 115 F.R.D. 504, 506 (D.D.C.1987). Accordingly, although plaintiff is proceeding pro se and in forma pauperis, the U.S. Marshal technically should have proceeded under Rule 4(d)(1) and effected personal service on defendants. Accordingly, because venue in this" } ]

[ { "docid": "11539147", "title": "", "text": "from other ultimate questions of fact.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (internal quotation marks omitted). B. Analysis 1. Plaintiffs Individual Capacity Claim In addition to claims against Rockland County and Sheriff Kralik in his official capacity, Plaintiffs Complaint purports to assert a claim against Kralik in his individual capacity. (See Compl. ¶¶ 4-5.) Defendants claim that Plaintiff failed to personally serve Kralik, pursuant to the applicable Federal and New York state rules and that all individual claims against him should therefore be dismissed. (See Defs.’ Mem. 2.) Under Rule 4(e) of the Federal Rules of Civil Procedure, service may be effected on an individual by: (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process. Fed.R.Civ.P. 4(e)(l)-(2). Plaintiff does not claim to have served Kralik personally or at his home. (See Pl.’s Mem. 8.) Rather, Plaintiff asserts that “the County Clerk accepted service on his behalf as his apparent agent.” (Id.) However, the affidavit of service upon which Plaintiff relies identifies the individual at the county clerk’s office who accepted service, but includes no indication that she was authorized to accept service on behalf of Kralik as an individual, or that she represented the same. (See Weissman Deck Ex. S (Aff. of Service), at 1.) Instead, the affidavit states that the process server “served the summons on Kaitlyn Quinn-Clerk, who is designated by law to accept service on behalf of County of Rockland Clerk O/B/O/ Kralik.” (Id.) Plaintiff has provided no evidence that Kralik designated the county clerk to" }, { "docid": "12002803", "title": "", "text": "board was at the final revocation hearing, and the parole officer was entitled to absolute immunity because he was serving in a prosecutorial role during the preliminary revocation and final revocation hearings); Namey v. Reilly, 926 F.Supp. 5, 8-10 (D.Mass.1996) (holding that the probation officer was absolutely immune from liability where the probationer claimed that the Parole Commission based its decision to revoke his parole solely on the information that was provided in the probation officer's report). . Mr. Epps’s Bivens claims against the Individual Defendants also must be dismissed under Federal Rule of Civil Procedure 12(b)(5) because he has not filed proof that he has properly served them. If a plaintiff wants to pursue an action against a federal employee in his or her individual capacity, that individual must be served with process in accordance with Rule 4(e) of the Federal Rules of Civil Procedure. Simpkins v. District of Columbia, 108 F.3d 366, 369 (D.C.Cir.1997). Rule 4(e) provides that service is effectuated by (a) complying with the laws of the state in which the district court is located or (b) delivering a copy of . the summons and complaint to the defendant (or his appointed agent) personally, or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion who resides there. Fed.R.Civ.P. 4(e). The D.C. Superior Court Rules of Civil Procedure allow for service upon individuals by first class, certified or registered mail. D.C. SCR-Civil 4(i)(2)(B). Actual notice does not substitute for technically proper service under Rule 4 and the Court is without jurisdiction to render a personal judgment against an individually-sued defendant until s/he has been properly served in accordance with the applicable federal or state statutory requirements. Ecclesiastical Order of the Ism of Am. Inc. v. Chasin, 845 F.2d 113, 116 (6th Cir.1988); Sieg v. Karnes, 693 F.2d 803, 807 (8th Cir.1982). . Because this Opinion resolves Mr. Epps’s claims against the Federal Defendants, Mr. Epps’s Motion for Supplemental Law Library Time at the D.C. Jail [Dkt. #17] for the purposes of responding to the" }, { "docid": "14727824", "title": "", "text": "their individual, rather than their official, capacities, personal jurisdiction over the individual defendants is necessary to maintain a Bivens claim. See Delgado v. Bureau of Prisons, 727 F.Supp. 24 (D.D.C.1989); Lawrence v. Acree, 79 F.R.D. 669, 670 (D.D.C.1978). Proper service of process upon defendants is necessary to obtain jurisdiction over defendants in their individual capacities. Pollack v. Meese, 737 F.Supp. 663, 666 (D.D.C.1990). Failure, therefore, to perfect service of process is fatal to a Bivens action. Id. Rule 4 of the Federal Rules of Civil Procedure requires that a copy of the summons and complaint be delivered to the defendant (or his appointed agent) personally, or be left “at his [or her] dwelling house or usual place of abode with some person of suitable age and discretion” who resides there. Fed.R.Civ.P. 4(e)(2). Service on the Attorney General and the United States Attorney for the district in which the action is brought, pursuant to the rules applicable to suits against officials in their official capacity “does not obviate the requirement of personal service ... where the action is against a federal official in his [or her] individual capacity.” Lawrence, 79 F.R.D. at 670. Accordingly, because Plaintiff has failed to effect service of process on the Defendants, the Court is unable to exercise jurisdiction over them and the Bivens action against them must therefore be dismissed. B. The Court cannot exercise jurisdiction over Defendants Clemmons and Brooks. The District of Columbia long arm statute, D.C.Code § 13-423, is the only basis upon which personal jurisdiction may be obtained over defendants who do not reside within or maintain a principal place of business in the District of Columbia. Reuber v. United States, 750 F.2d 1039, 1049 (D.C.Cir.1984). The statute provides that a court in the District of Columbia may exercise personal jurisdiction over a defendant with regard to a claim arising from the defendant’s (1) transacting any business in the District of Columbia; (2) contracting to supply services in the District of Columbia; (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; (4)" }, { "docid": "21550473", "title": "", "text": "Whether Service upon the United States is Required in a Bivens Action. While the government’s brief on appeal does not address this issue, a memorandum of law that the government filed in support of its initial motion to dismiss in the district court cited three cases for the proposition that service upon the United States is required in a Bivens action: Light v. Wolf, 816 F.2d 746 (D.C.Cir.1987); Drayton v. Veterans Administration, 654 F.Supp. 558 (S.D.N.Y.1987); and Lawrence v. Acree, 79 F.R.D. 669 (D.D.C.1978). Light does not address the issue that we must decide. That case decided only that service must be made upon the United States when a federal official is sued and “the lawsuit could be regarded as involving such an officer’s official duties — as when there is an employment relationship between plaintiff and defendant.” 816 F.2d at 751 n. 14. That case does not rule that the United States must be served in a Bivens action, which by definition and established precedent is brought against defendants only in their individual capacities. Similarly, Drayton involved a claim of race and sex discrimination by the Veterans Administration in violation of 42 U.S.C. § 2000e et seq. The case was dismissed for failure to name as a defendant “the head” of the Veterans Administration, as required by 42 U.S.C. § 2000e-16(e). See 654 F.Supp. at 562. In addition, the court commented that if the proper party had been named, service upon the United States would have been required. See id. at 563. The case manifestly involved the requirements for service in a suit against a federal official in his official capacity. Only Lawrence provides significant support for the government’s position. Lawrence addressed the issue whether service upon the United States, as well as the individual defendant, was required “in a suit against a federal officer in his individual capacity where the actions complained of relate to his or her duties.” 79 F.R.D. at 670. The court ruled that the United States must be served when the individual defendant “act[ed] under color of legal authority,” id. at 671, but not" }, { "docid": "23597038", "title": "", "text": "Upon an individual ... by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. “(6) Upon a state or municipal corporation or other governmental organization thereof subject to suit, by delivering a copy of the summons and of the complaint to the chief executive officer thereof or by serving the summons and complaint in the manner prescribed by law of that state for the service of summons or other like process upon any such defendant. “(7) Upon a defendant of any class referred to in paragraph (1) . . . , it is also sufficient if the summons and complaint are served in the manner prescribed by any statute of the United States or in the manner prescribed by the law of the state in which the district court is held for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state.” Thus, Rules 4(d)(1) and 4(d)(7) govern the service on the “individual defendants,” Rule 4(d)(6) the service on the “City defendants.” Rather than reflecting service on the “individual defendants” in compliance with either 4(d)(1) or 4(d)(7) by personal service, “residence” service, agent service, or service in compliance with Michigan law, the marshall’s return reflects only that the summons and complaint were served on the secretary to the city clerk and on the city director of elections. Though the amended complaint fails to reflect whether the individuals were sued in their official or their individual capacities, even if they were sued in their official capacities, proper service of process would still be necessary to obtain personal jurisdiction over those officials. Gozdanovic v. Civil Serv. Comm’n, 361 F.Supp. 504 (W.D.Pa.1973); Bell v. Hosse, 31 F.R.D. 181, 184 (M.D.Tenn.1962). As in Hosse," }, { "docid": "571584", "title": "", "text": "the complaint to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. In the instant case, although the United States Attorney’s Office was properly served pursuant to FED.R.CIV.P. 4(d)(4), such service “does not obviate the requirement of personal service under Fed. R.Civ.P. 4(d)(1) where the action is in substance against a federal official in his individual capacity.” Lawrence, 79 F.R.D. at 670. Accordingly, in the absence of service of process, this action cannot proceed against Defendant Kindt. This Court also does not have jurisdiction over Defendant Kindt where Plaintiff’s § 1985 complaint seeks relief against the personal resources of him in his individual capacity. Defendant Kindt was not personally served within the District of Columbia, is not a resident of the District of Columbia, and is not within the District of Columbia long-arm statute which provides, in relevant part, that the Court: may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person’s— (1) transacting any business in the District of Columbia; * Jf * * k * (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia; D.C.Code § 13-423 (1989 Repl.). See generally Reuber v. United States, 750 F.2d 1039, 1049 (D.C.Cir.1984). Based on the principles of agency law, under the long-arm statute this Court can exercise personal jurisdiction over out-of-state defendants who have no direct contacts with the District of Columbia if the plaintiff alleges that an overt" }, { "docid": "14727825", "title": "", "text": "action is against a federal official in his [or her] individual capacity.” Lawrence, 79 F.R.D. at 670. Accordingly, because Plaintiff has failed to effect service of process on the Defendants, the Court is unable to exercise jurisdiction over them and the Bivens action against them must therefore be dismissed. B. The Court cannot exercise jurisdiction over Defendants Clemmons and Brooks. The District of Columbia long arm statute, D.C.Code § 13-423, is the only basis upon which personal jurisdiction may be obtained over defendants who do not reside within or maintain a principal place of business in the District of Columbia. Reuber v. United States, 750 F.2d 1039, 1049 (D.C.Cir.1984). The statute provides that a court in the District of Columbia may exercise personal jurisdiction over a defendant with regard to a claim arising from the defendant’s (1) transacting any business in the District of Columbia; (2) contracting to supply services in the District of Columbia; (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia; (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he [or she] regularly does or solicits business, [or] engages in any other persistent course of conduct ... in the District of Columbia. D.C.Code § 13-423(a)(1)-(4) (1981). Defendants Clemmons and Brooke are employees of the Federal Bureau of Prisons who work in Minnesota. Because these Defendants are not alleged to conduct any business or make any contracts for services in the District of Columbia and because no injury is alleged to have been suffered in the District of Columbia, the Court cannot exercise jurisdiction over them. C. Yenue does not lie in this district for PlaintifPs Bivens claims. 28 U.S.C. 1391(e), the applicable venue provision for suits against federal officials in their official capacities, is inapplicable to suits against such officials in their individual capacities; rather, venue in such suits is governed by 28 U.S.C. § 1391(b), which provides that A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as" }, { "docid": "20409524", "title": "", "text": "935 (D.C.Cir.2008) (“the discretionary function immunizes even government abuses of discretion”). As in Gustave-Schmidt v. Chao, 226 F.Supp.2d at 199, plaintiffs allegations about the deficiencies of the investigation are inextricably intertwined with the outcome of the investigation and the discretionary decision to propose his removal. Plaintiffs claim against the United States for intentional infliction of emotional distress therefore is barred by the discretionary function exception to the FTCA. The Court will dismiss Count One for lack of subject matter jurisdiction. C. Plaintiffs Bivens Claim Plaintiff seeks money damages for a constitutional tort — deprivation of procedural due process rights — from Mr. Pistole in his individual capacity. See Compl. ¶ 36. See Bivens v. Six Unknown Named Agents, 403 U.S. at 389, 91 S.Ct. 1999. See also Correctional Services Corp. v. Malesko, 534 U.S. 61, 66-68, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001); Scinto v. Fed. Bureau of Prisons, 608 F.Supp.2d 4, 8 (D.D.C.2009). Defendants move to dismiss on the grounds that plaintiff never properly served Mr. Pistole and for failure to state a Bivens claim. Rule 4(i)(3) of the Federal Rules of Civil Procedure provides that to sue an officer or employee of the United States in his or her individual capacity in connection with duties performed on the behalf of the United States, a plaintiff must serve both the United States and the officer or employee as an individual. Fed.R.Civ.P. 4(i)(3). Rule 4(e) requires that an individual within a judicial district of the United States may be served by “(A) delivering a copy of the summons and the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.” Fed. R.CrvP. 4(e). Plaintiff served Mr. Pistole by sending a copy of the summons and complaint by certified mail to the FBI headquarters in the District of Columbia where someone other than Mr. Pistole signed for it. See Affidavit" }, { "docid": "14640054", "title": "", "text": "v. Puntervold, 338 F.2d 21, 22 (5th Cir.1964) (per curium). In the present case, plaintiff seeks declaratory, injunctive and monetary relief against each of the defend ants. Therefore, it would appear that the sufficiency of service on the individual defendants must he measured under the rules governing service of process on individuals. Plaintiff argues that the certified mailing of the summons and complaint to Riverdale Village and Apartments on January 16, 1984 was sufficient service upon the individual defendants. Alternatively, plaintiff maintains that the February 1984 service of process by the private process server, Charles Fisher, was sufficient to obtain personal jurisdiction over the individual defendants. Federal Civil Rule 4(d)(1) provides that personal service shall be made [ujpon an individual ... by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. (Emphasis added). Service of process at a defendant’s place of business does not satisfy the requirements of Rule 4(d)(1). See Gipson v. Township of Bass River, 82 F.R.D. 122, 125 (D.N.J.1979) (“leaving process at defendants’ place of employment does not qualify under the dwelling house or usual place of abode method”) (citations omitted). Service upon a defendant in his official capacity also does not constitute service upon him as an individual. Cf. Micklus v. Carlson, 632 F.2d 227, 240 (3d Cir.1980) (“Where money damages are sought from a public official in his individual capacity, service by certified mail under Rule 4(d)(5) is insufficient”) (footnote and citations omitted). It is also to be noted that [a]s to service on an agent, the agent must be one who is authorized either by appointment or by law to receive service. Rule 4(d)(1), F.R.Civ.P. The cases dealing with agency by appointment indicate that an actual appointment for the specific purpose of receiving process is normally expected. Gibson v." }, { "docid": "14727823", "title": "", "text": "continued incarceration illegal and effect his immediate release. Plaintiff was subsequently released from federal custody. II. DISCUSSION Plaintiff’s Bivens claims must be dismissed for want of jurisdiction, for improper venue, and for failure to state a claim upon which relief can be granted. Plaintiff invokes Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971), as the basis for recovery against the various Defendants in their individual capacities. However, because Plaintiff has failed to perfect service against any of the individual Defendants, because the Court would be unable to exercise personal jurisdiction over the nonresident Defendants, because venue does not lie in this district for Plaintiff’s Bivens claims, and because Plaintiff has failed to satisfy the heightened pleading standard applicable to suits against government officials in their individual capacities, his Bivens claims must be dismissed. A. The Court is unable to exercise jurisdiction over the Defendants because Plaintiff has failed to effect proper service of process on them. Because Bivens suits are suits against government officials in their individual, rather than their official, capacities, personal jurisdiction over the individual defendants is necessary to maintain a Bivens claim. See Delgado v. Bureau of Prisons, 727 F.Supp. 24 (D.D.C.1989); Lawrence v. Acree, 79 F.R.D. 669, 670 (D.D.C.1978). Proper service of process upon defendants is necessary to obtain jurisdiction over defendants in their individual capacities. Pollack v. Meese, 737 F.Supp. 663, 666 (D.D.C.1990). Failure, therefore, to perfect service of process is fatal to a Bivens action. Id. Rule 4 of the Federal Rules of Civil Procedure requires that a copy of the summons and complaint be delivered to the defendant (or his appointed agent) personally, or be left “at his [or her] dwelling house or usual place of abode with some person of suitable age and discretion” who resides there. Fed.R.Civ.P. 4(e)(2). Service on the Attorney General and the United States Attorney for the district in which the action is brought, pursuant to the rules applicable to suits against officials in their official capacity “does not obviate the requirement of personal service ... where the" }, { "docid": "23021341", "title": "", "text": "Daly-Mur-phy contends that the VA and the individual defendants violated her free speech rights under the First Amendment, deprived her of her Fifth Amendment due process rights, and violated her Ninth Amendment privacy rights. She further argues that these alleged violations form the basis of a cause of action under 42 U.S.C. § 1983 and Bivens v. Six Unknown Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). There is no valid basis for a claim under section 1983, in that Daly-Murphy’s allegations are against federal officials acting under color of federal law. Section 1983 provides a remedy only for deprivation of constitutional rights by a person acting under color of law of any state or territory or the District of Columbia. See Broadway v. Block, 694 F.2d 979, 981 (5th Cir.1982). Thus, the only possible action is an action under the authority of Bivens. The threshold question which arises here is whether the defendants were properly served in their individual capacities. Daly-Murphy’s complaint and summons were served on the defendants by leaving them with Dan Flynn, Labor Relations, Authorized Agent at the Medical Center. Ap-pellees argue that while the defendants thus were properly served in their official capacity, appellant did not comply with Federal Rule of Civil Procedure 4(d)(1), which requires personal service of individuals; and thus defendants were not properly served in their individual capacities. Federal Rule of Civil Procedure 4(d)(1) provides that service will be made Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. We require “substantial compliance with Rule 4.” Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982). Rule 4 has generally been construed to mean that service at a defendant’s place of employment" }, { "docid": "2493117", "title": "", "text": "must serve the government and, if the officer is being sued in his individual capacity, also must personally serve the officer. See Lawrence v. Acree, 79 F.R.D. 669, 670-71 (D.D.C.1978); see also Sorg Paper Co. v. Murphy, 111 F.R.D. 363, 368 (S.D.Ohio 1986) (one-sentence dictum); Francisco v. Schmidt, 532 F.Supp. 850, 852 (E.D.Wis. 1982). In response to the government’s motion to dismiss, the plaintiff did serve the United States on July 6, 1987—almost one year after the complaint was filed. This court referred the fully briefed motion to Magistrate Bucklo, who recommended that the defendants’ motion to dismiss or for summary judgment on Count I be denied because the complaint stated a Bivens claim and because there were disputed material facts that had to be adjudicated at trial. She also recommended, however, that the defendants’ motion for summary judgment on Counts II, III, and IV be granted. In addition, she stated that the doctrine of sovereign immunity applied and, therefore, that the defendants could be sued only in their individual capacities. The government then filed three objections to the Report and Recommendation. First, they claimed that the magistrate failed to address the issue of proper service and personal jurisdiction. Second, they claimed that the magistrate incorrectly extended Bivens to cover common law torts. Consequently, they contended, the defendants should be able to invoke the doctrine of absolute immunity. Finally, they argued that Bivens should not be expanded to cover first amendment violations. III. ANALYSIS Federal Rule of Civil Procedure 4(d) delineates the appropriate method of service, depending on the entity sued. Rule 4(d)(1), which governs service upon an individual, requires that a copy of the summons and of the complaint be delivered to the individual personally or by proper abode service. Rule 4(d)(5), which prescribes the proper mode of service upon officers of the United States, such as the defendants here, requires that service of a copy of the summons and of the complaint be made upon the United States as well as upon the individual officer: “[Service shall be made] [u]pon an officer or agency of the United States," }, { "docid": "571583", "title": "", "text": "their needs, denominated Unit 10. II. Equal Protection and § 1985 Claims Plaintiff filed this complaint against defendants alleging that they abridged his right to equal protection under the Fifth Amendment and conspired to deny him his rights in violation of 42 U.S.C. § 1985. This matter must be dismissed for lack of personal service of process against and personal jurisdiction over Defendant Kindt. This matter must be dismissed against both Defendants Kindt and BOP for failure to state a claim upon which relief can be granted. A. Lack of Personal Service Against and Personal Jurisdiction Over Defendant Kindt Service of process against a federal employee who is sued in his individual capacity must be pursuant to FED.R.CIV.P. 4(d)(1). See Lawrence v. Aeree, 79 F.R.D. 669, 670 (D.D.C.1978), aff'd, 665 F.2d 1319 (D.C.Cir.1981); Navy, Marshall & Gordon v. United States International Development-Corporation Agency, 557 F.Supp. 484, 489 (D.D.C.1983). Rule 4(d)(1) provides that service upon an individual, other than an infant or incompetent person, shall be made by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual’s dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. In the instant case, although the United States Attorney’s Office was properly served pursuant to FED.R.CIV.P. 4(d)(4), such service “does not obviate the requirement of personal service under Fed. R.Civ.P. 4(d)(1) where the action is in substance against a federal official in his individual capacity.” Lawrence, 79 F.R.D. at 670. Accordingly, in the absence of service of process, this action cannot proceed against Defendant Kindt. This Court also does not have jurisdiction over Defendant Kindt where Plaintiff’s § 1985 complaint seeks relief against the personal resources of him in his individual capacity. Defendant Kindt was not personally served within the District of Columbia, is not a resident of the District of Columbia, and is not within the" }, { "docid": "21203215", "title": "", "text": "was discriminated against in violation of 42 U.S.C. § 1981 because he is African American. Am. Compl. at 6. He is seeking reinstatement for disparate treatment that allegedly occurred while he was an employee of The Department of State at the Embassy in Berlin. As a federal employee, however, Title VII offered Mr. Keller the “exclusive, pre-emptive, administrative scheme for the redress of federal employment discrimination.” Brown v. General Serv. Admin., 425 U.S. 820, 821, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). Title VII “precludes actions [alleging employment discrimination] against federal officials for alleged constitutional violation as well as actions under other federal legislation.” Kizas v. Webster, 707 F.2d 524, 542 (D.C.Cir.1983), cert. denied, 464 U.S. 1042, 104 S.Ct. 709, 79 L.Edüd 173 (1984). Accordingly, Mr. Keller’s Fourteenth Amendment and § 1981 claims must be dismissed. As a federal employee, he may complain of race discrimination only pursuant to the administrative and judicial processes of Title VII. See Brown, 425 U.S. at 821, 96 S.Ct. 1961. C. Service on Individual Defendants Federal employees sued in their individual capacities must be served in accordance with the rules ordinarily applicable to non-federal individual defendants. Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 368-69 (D.C.Cir.1997). Rule 4(e) of the Federal Rules of Civil Procedure governs service of process upon “individuals within a judicial district of the United States.” A plaintiff must serve a copy of the summons and complaint on the defendant (or his appointed agent) personally or leave the complaint and summons “at his dwelling house or usual place of abode with some person of suitable age and discretion” who lives there. Fed. R.Civ.P. 4(e). Service on the U.S. Attorney in the district where the action was brought pursuant to Fed.R.Civ.P. 4(i) “does not obviate the requirements of personal service under Fed.R.Civ.P. 4(d)(1) where the action is in substance against a federal official in his individual capacity.” Lawrence v. Acree, 79 F.R.D. 669, 670 (D.D.C.1978) (emphasis added). Service at a place of business does not satisfy the requirements for personal service. See Leichtman v. Koons, 527 A.2d 745, 747 & n." }, { "docid": "23021342", "title": "", "text": "leaving them with Dan Flynn, Labor Relations, Authorized Agent at the Medical Center. Ap-pellees argue that while the defendants thus were properly served in their official capacity, appellant did not comply with Federal Rule of Civil Procedure 4(d)(1), which requires personal service of individuals; and thus defendants were not properly served in their individual capacities. Federal Rule of Civil Procedure 4(d)(1) provides that service will be made Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. We require “substantial compliance with Rule 4.” Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir.1982). Rule 4 has generally been construed to mean that service at a defendant’s place of employment is insufficient. Smith v. Western Offshore, Inc., 590 F.Supp. 670, 674 (E.D.La.1984); Guyette v. Stauffer Chem. Co., 518 F.Supp. 521, 527 (D.N.J.1981); C. Wright & A. Miller, Federal Practice and Procedure § 1096 (1969). More specifically, where money damages are sought through a Bivens claim, personal service, and not service at the place of employment, is necessary to obtain jurisdiction over a defendant in his capacity as an individual. Micklus v. Carlson, 632 F.2d 227, 240-41 (3d Cir.1980). Thus, we agree with appellees that while serving the defendants at the Medical Center was sufficient to establish jurisdiction over them in their official capacity, it did not suffice to establish jurisdiction over them as individuals. Because a Bivens action can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity, the failure to perfect individual service is fatal to appellant’s Bivens action against the named defendants. Holloman v. Watt, 708 F.2d 1399, 1402 (9th Cir.1983) (citing cases), cert. denied, 466 U.S. 958, 104 S.Ct. 2168, 80" }, { "docid": "21203216", "title": "", "text": "their individual capacities must be served in accordance with the rules ordinarily applicable to non-federal individual defendants. Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 368-69 (D.C.Cir.1997). Rule 4(e) of the Federal Rules of Civil Procedure governs service of process upon “individuals within a judicial district of the United States.” A plaintiff must serve a copy of the summons and complaint on the defendant (or his appointed agent) personally or leave the complaint and summons “at his dwelling house or usual place of abode with some person of suitable age and discretion” who lives there. Fed. R.Civ.P. 4(e). Service on the U.S. Attorney in the district where the action was brought pursuant to Fed.R.Civ.P. 4(i) “does not obviate the requirements of personal service under Fed.R.Civ.P. 4(d)(1) where the action is in substance against a federal official in his individual capacity.” Lawrence v. Acree, 79 F.R.D. 669, 670 (D.D.C.1978) (emphasis added). Service at a place of business does not satisfy the requirements for personal service. See Leichtman v. Koons, 527 A.2d 745, 747 & n. 5 (D.C.Cir.1987) (office employee with authority to receive business mail does not by virtue of his or her position have authority to receive process). Admittedly, Mr. Keller served the individual Defendants at their place of employment, ie., the Department of State. The Executive Director in the Executive Office of the Office of the Legal Advisor at The Department of State accepted service. See Declaration of Christopher R. Riche (“Riche Decl.”) ¶5, Def.’s Mem., Exh. A; PL’s Opp. at 8-9 (“We served defendants ... by serving the agent authorized to receive service, Chris Richey [sic], at the United States Department of State.”). However, Mr. Riche was authorized to receive, and by his stamp did receive, service against the individual Defendants only in their official capacities. Riche Decl. ¶ 5. The summons was issued on October 31, 2006; Mr. Riche accepted service in “official capacity only” on November 6, 2006, and no proper service on the individual Defendants has been effectuated since then. Mr. Keller asks for more time to serve the individual Defendants. Pl.’s Opp. at" }, { "docid": "20321075", "title": "", "text": "state a claim upon which relief can be granted (Rule 12(b)(6)). Counsel for Dr. Sullivan and the United States doubtless combined these objections in one motion because a party choosing to file a Rule 12(b) motion “must include all defenses and objections then available to him that Rule 12 permits to be made by motion,” Chaeles Alan Wright, The Law of Federal Courts 434-35 (4th ed.1983). If the party only raises a Rule 12(b)(6) objection, then the party has waived insufficiency of service of process and lack of personal jurisdiction. Fed.R.Civ.P. 12(h)(1). As to Dr. Sullivan, the district court dealt first with his defense that service was insufficient under Fed.R.Civ.P. 4(e) because (as Dr. Simpkins conceded) he had not been personally served. Rule 4(e) governs service of process on individuals. Service on a federal “officer” is governed by Rule 4(i)(2), which requires service by certified mail upon not only the officer but also the United States. Was Dr. Sullivan an individual or an officer for the purposes of Rule 4? The district court held that he was being sued as an individual. The court treated the breach of contract and denial of due process claims (counts 1 and 2) against him as Bivens claims. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Dr. Simpkins does not contest this view of counts 1 and 2 and we shall assume it to be correct. A Bivens suit is an action against a federal officer seeking damages for violations of the plaintiff’s constitutional rights. These suits are, the court said, actions against federal officers in their individual capacity, not their official capacity. Relying on Pollack v. Meese, 737 F.Supp. 663 (D.D.C.1990), the court therefore held that Rule 4(e) controlled and that personal service was necessary. Accord Navy, Marshall & Gordon v. U.S. Int’l Development-Cooperation Agency, 557 F.Supp. 484, 489 (D.D.C.1983); Deutsch v. U.S. Dep’t of Justice, 881 F.Supp. 49, 52 (D.D.C.1995). Whether this is a correct view of Rule 4 is a question this court has never specifically addressed." }, { "docid": "20321076", "title": "", "text": "he was being sued as an individual. The court treated the breach of contract and denial of due process claims (counts 1 and 2) against him as Bivens claims. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Dr. Simpkins does not contest this view of counts 1 and 2 and we shall assume it to be correct. A Bivens suit is an action against a federal officer seeking damages for violations of the plaintiff’s constitutional rights. These suits are, the court said, actions against federal officers in their individual capacity, not their official capacity. Relying on Pollack v. Meese, 737 F.Supp. 663 (D.D.C.1990), the court therefore held that Rule 4(e) controlled and that personal service was necessary. Accord Navy, Marshall & Gordon v. U.S. Int’l Development-Cooperation Agency, 557 F.Supp. 484, 489 (D.D.C.1983); Deutsch v. U.S. Dep’t of Justice, 881 F.Supp. 49, 52 (D.D.C.1995). Whether this is a correct view of Rule 4 is a question this court has never specifically addressed. Several statements in our opinion in Light v. Wolf, 816 F.2d 746 (D.C.Cir.1987), could suggest that in a Bivens suit, the defendant officer should not be treated as an individual and that service must be on the officer and the United States pursuant to what is now Rule 4(e)(2). We said, for instance, that “there must be some connection between the lawsuit and the federal government before [Rule 4(e)(2) ] service is required,” id. at 748, a condition that always will be met in Bivens eases. If there is no such connection, if the officer was not acting under color of law, how could he violate the Constitution? We also mentioned “practical considerations,” such as providing government counsel to these defendants early in the lawsuit. Service on the United States facilitates this objective since the summons and complaint must be sent to the United States attorney in the district and to the Attorney General. This “practical consideration” might encompass Bivens defendants, who are often represented by Justice Department attorneys. See 28 C.F.R. § 50.15(a). There" }, { "docid": "2274388", "title": "", "text": "does not contest the assertion that he failed to present any tort claim to the appropriate agency, within the two-year period provided by 28 U.S.C. § 2401(B). In effect, therefore, he concedes that dismissal of his tort claims is proper, insofar as they are brought under the Federal Tort Claims Act. See, e.g., Industrial Constructors Corp. v. United States Bureau of Reclamation, 15 F.3d 963, 967-68 (10th Cir.1994) (under FTCA, filing administrative claim with appropriate federal agency is a prerequisite to bringing a civil action against United States for damages for negligence or wrongful act of any United States employee). In fact, in his brief in opposition to the motion to dismiss, Plaintiff specifically stated his claims are not brought under the Tort Claims Act, but instead are claims for constitutional torts. Theréfore, due to Plaintiffs failure to exhaust his administrative remedies as well as his specific disavowal of the claims as tort claims, his tort claims will be dismissed. Bivens Claims — Personal Service: The only possible claim remaining to Plaintiff following the above dismissal are Bivens claims against the individual IRS-employee Defendants, for constitutional torts. Since such claims are brought against government employees in their individual capacity, rather than their official capacity, personal service upon the employees is required pursuant to Rule 4(e) of the Federal\" Rules of Civil Procedure. See Simpkins v. District of Columbia Government, 108 F.3d 366 (D.C.Cir.1997); Despain v. Salt Lake Area Metro Gang Unit, 13 F.3d 1436 (10th Cir.1994) (affirming dismissal of suit alleging violation of constitutional rights, due to failure to timely serve individual defendants). If the required personal service has not been obtained, this Court has no jurisdiction over the individual Defendants and may not proceed to a consideration of the merits. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999). Individual Defendants argue they were never personally served with process in this case, and have submitted affidavits to that effect. In response, Plaintiff argues that Defendants’ counsel was served by mail, and that service was otherwise proper under New Mexico law." }, { "docid": "14727822", "title": "", "text": "from a New York court for a term of 1-3 years. Plaintiff alleges, however, that the sentences were somehow deemed to have been served as of the dates they were imposed, id., ¶¶ 25-26, and that “[t]he action and or non-actions of the defendants ... individually and/or in conspiracy together ...” violated Plaintiffs rights under the Due Process Clause when the Defendants refused to release him from prison and did not more quickly “contact the courts to process plaintiffs [Judgment and Commitment Orders].” Id., ¶ 31. Plaintiff also claims that unspecified Defendants threatened him with disciplinary action because he made repeated telephone calls in an attempt to effect his release. Plaintiff seeks compensatory damages in the amount of five hundred dollars, and punitive damages in the amount of two hundred and fifty dollars, for every day he was allegedly incarcerated after the expiration of his sentence against each of the Defendants in their individual capacities. In addition, Plaintiff, who was incarcerated at the time he drafted his Complaint, sought to have the Court declare his continued incarceration illegal and effect his immediate release. Plaintiff was subsequently released from federal custody. II. DISCUSSION Plaintiff’s Bivens claims must be dismissed for want of jurisdiction, for improper venue, and for failure to state a claim upon which relief can be granted. Plaintiff invokes Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397, 91 S.Ct. 1999, 2005, 29 L.Ed.2d 619 (1971), as the basis for recovery against the various Defendants in their individual capacities. However, because Plaintiff has failed to perfect service against any of the individual Defendants, because the Court would be unable to exercise personal jurisdiction over the nonresident Defendants, because venue does not lie in this district for Plaintiff’s Bivens claims, and because Plaintiff has failed to satisfy the heightened pleading standard applicable to suits against government officials in their individual capacities, his Bivens claims must be dismissed. A. The Court is unable to exercise jurisdiction over the Defendants because Plaintiff has failed to effect proper service of process on them. Because Bivens suits are suits against government officials in" } ]

[ { "docid": "864338", "title": "", "text": "light of that analysis. Hockenbury v. Sow-ders, 620 F.2d 111 (6th Cir. 1980). Unfortunately, the panel’s opinion is at odds with established authority in the circuit. Today, the en banc court refuses to act in the face of a clear affront to circuit precedent. I must respectfully dissent. I The problem in this case was that, although there was clear constitutional error in the state trial, counsel never objected to it. Thus, this case presents a threshold question whether federal habeas corpus relief is barred by the Supreme Court’s decision in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). This was the doctrine seized upon by the panel to deny relief to the petitioner. The panel decision cannot be reconciled with a series of eases in this court which clearly established this circuit’s view of Wainwright: Berrier v. Egeler, 583 F.2d 515 (6th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978); Rachel v. Bordenkircher, 590 F.2d 200 (6th Cir. 1978); Cook v. Bordenkircher, 602 F.2d 117 (6th Cir.), cert. denied, 444 U.S. 936, 100 S.Ct. 286, 62 L.Ed.2d 196 (1979) and Krzeminski v. Perini, 614 F.2d 121 (6th Cir. 1980) (a case not cited by the panel). Under these cases, error which is apparent on the trial record, which is of constitutional dimension, is reviewable in habeas corpus proceedings if state law allows review of such error. The leading case holding this is Judge Edward’s opinion in Berrier v. Egeler, where this court affirmed the grant of a writ of habeas corpus despite counsel’s failure to object at trial or raise the jury instruction issue in question on appeal within the state system. Berrier squarely relied on a “plain error” analysis-plain error which is reviewable within the state system, even if the state courts did not actually review it. Berrier was followed in Cook v. Borden-kircher and Rachel v. Bordenkircher as an alternative ground for decision. Both Cook and Rachel held that habeas corpus relief is available in cases of plain trial error. These decisions were further endorsed in Krzeminski" } ]

[ { "docid": "3371857", "title": "", "text": "and arranged to meet the woman. They met, his car broke down and she drove him home to the trailer park where he lived. When they subsequently returned, petitioner’s wife saw the woman and began beating her in a jealous rage. The woman then raced into the trailer park office. Petitioner’s testimony as to his prerape activities was supported by a gas station attendant, the bartender at the Jungle Lounge, one of the waitresses there and his wife. In addition, his parole officer stated that she had spoken with Mr. Cook shortly after his arrest and that he had related a similar story to her at that time. I. As a preliminary matter, the state alleges that federal habeas corpus review is barred because there was no objection made to any of the prosecutor’s closing arguments. Primary reliance is placed upon Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct 2497, 53 L.Ed.2d 594 (1977). We reject this claim. Wainwright stands for the proposition that under certain circumstances, failure to comply with a state procedural rule can operate as a bar to habeas corpus relief absent a showing of cause for non-compliance and prejudice to the petitioner. Wainwright itself dealt with a situation where failure to comply with a state procedural rule prevented an issue from being raised in the state trial court. Here, however, the alleged error is plainly evident in the record. This court has granted habeas corpus relief in the face of Wainwright objections in two cases where plain trial error occurred and counsel failed to comply with state contemporaneous objection rules. See Rachel v. Bordenkircher, 590 F.2d 200 (6th Cir. 1978) (prosecutorial comment on defendants failure to take the stand); Berrier v. Egeler, 583 F.2d 515 (6th Cir.) cert, denied 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978) (improper burdenshifting instruction by trial judge). More important, it is clear that under Kentucky law, failure to object at trial does not bar appellate review where “the court is satisfied that the substantial rights of the defendant have been prejudiced.” Kentucky R.Cr. 9.26 See also Kentucky CR" }, { "docid": "16687504", "title": "", "text": "(1947) and Bollenbach v. United States, 326 U.S. 607, 614-615, 66 S.Ct. 402, 90 L.Ed. 350 (1946) which suggests that patent errors in jury instructions should rarely be deemed harmless. In each of those cases, however, the errors complained of could have affected the jury’s deliberations. We are convinced that the errors complained of here could not have. The judgment of the district court is affirmed. . See 29 Ohio Rev.Code §§ 2901.01 et seq. (1953), superceded, 29 Ohio Rev.Code §§ 2903.01 et seq. (1975). . The state respondents argue that because no objection to the jury instruction was made at trial, the petitioner is barred from raising any questions about them in this habeas corpus proceeding. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). We have previously considered and rejected similar claims. Where there is plain error in the record which is reviewable under state law, we can review it in a habeas corpus proceeding. Berrier v. Egeler, 583 F.2d 515, 522 (6th Cir.) cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978). Accord Cook v. Bordenkircher, 602 F.2d 117, 119 (6th Cir.), cert. denied, — U.S. —, 100 S.Ct. 286, 62 L.Ed.2d 196 (1979); Rachel v. Bordenkircher, 590 F.2d 200, 204 (6th Cir. 1978). The Ohio state courts review plain error in jury instructions. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978); State v. Lockett, 49 Ohio St.2d 48, 358 N.E.2d 1062 (1976) overruled in part on other grounds in State v. Downs, 51 Ohio St.2d 47, 364 N.E.2d 1140, vacated, 438 U.S. 909, 98 S.Ct. 3133, 57 L.Ed.2d 1153 (1978); State v. Gideons, 52 Ohio App.2d 70, 368 N.E.2d 67 (1977). Accordingly we can do the same. See also Jurek v. Estelle, 593 F.2d 672, 680-85 (5th Cir. 1979), reh. en banc granted, 597 F.2d 590 (1979). . It is true that after petitioner’s trial in 1972, the law in Ohio changed. Effective January 1, 1974, a defendant in Ohio need only go forward with sufficient evidence to raise a defense. A defendant no longer has" }, { "docid": "23453185", "title": "", "text": "the court to caution the jury to disregard the objectionable remarks. . Compare County Court of Ulster County v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979) in which the court explained the reasoning behind not denying habeas corpus review if the state court decision was not based upon failure to comply with a contemporaneous objection rule: Our conclusion that it was proper for the federal courts to address respondents’ claim is confirmed by the policies informing the ‘adequate state ground’ exception to habeas corpus jurisdiction. The purpose of that exception is to accord appropriate respect to the sovereignty of the States in our federal system. Wainwright v. Sykes, 433 U.S., at 88 [97 S.Ct. 2497 at 2507, 53 L.Ed.2d 594], But if neither the state legislature nor the state courts indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the State by entertaining the claim. (Emphasis added.) Cf. Bradford v. Stone, 594 F.2d 1294, 1296 n. 2 (9th Cir. 1979) (“Although the intermediate state court did not pass unequivocally on the merits of the federal claim, we have chosen to assume the state's failure to rest exclusively upon the procedural default permits us to reach the federal question”). . Compare Rachel v. Bordenkircher, 590 F.2d 200, 204 (6th Cir. 1978) (“We are of the opinion that these affidavits satisfy the ‘cause’ requirement of the Wainwright test. We are further of the opinion that the required ‘prejudice,’ in light of the clear constitutional violations committed in this case, can be presumed. ... Alternatively, ‘we find no bar to habeas relief in this case because [petitioner’s] trial counsel made no objection ... at the time of trial. The magnitude of the error in this trial would make it cognizable in a habeas proceeding as plain error even where no objection had been made before the trial court.’ ”). . In Jenkins v. Anderson, -, U.S. -, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), the Supreme Court, in distinguishing Doyle, reaffirmed its holding and, consequently, its" }, { "docid": "23399881", "title": "", "text": "name and address and indicating that he refused to testify, whereupon he was excused and the jury recessed for a regular recess. We find no objection to any of these proceedings and none has been pointed out to us in oral argument to the briefs. Therefore the error, if any there was, is not cognizable upon appeal. See State v. Gordon, 28 Ohio St.2d 45, 48, 276 N.E.2d 243. . We note the issue as to whether this Court can, consistent with Wainwright v. Sykes, reach the merits of an issue on habeas with no showing of cause and prejudice even when there is a technical state procedural bar. There appears to be confusion in this Circuit as to whether constitutional infirmities in state trials that are renewable under state law fall outside the Sykes requirement. There is ample authority that when there is a plain error exception in state law, we can reach the merits absent any Sykes analysis, if the alleged infirmities amount to plain error. Brewer v. Overberg, 624 F.2d 51 (6th Cir.) cert. denied, 449 U.S. 1085, 101 S.Ct. 873, 66 L.Ed.2d 810 (1980); Berrier v. Egeler, 583 F.2d 515 (6th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978); Rachel v. Bordenkircher, 590 F.2d 200 (6th Cir.1978); Cook v. Bordenkircher, 602 F.2d 117 (6th Cir.), cert. denied, 444 U.S. 936, 100 S.Ct. 286, 62 L.Ed.2d 196 (1979); Krzeminski v. Perini, 614 F.2d 121 (6th Cir.1980). Yet, the holding in Hockenberry v. Sowders, 620 F.2d 111 (6th Cir.1979) appears to be in tension with that authority. See Hockenberry v. Sowders, 633 F.2d 443 (6th Cir.1979) (order denying rehearing) [especially the dissenting opinions of Judges Keith and Jones at 633 F.2d 445, 448]. Since we here find no adequate state procedural bar, we need not reach this issue. . We are well aware of the danger of a holding which would permit state prisoners to attack, in federal habeas actions, state appellate court applications of state procedural rules as a bar to the review of issues not raised at trial. To allow such" }, { "docid": "864339", "title": "", "text": "117 (6th Cir.), cert. denied, 444 U.S. 936, 100 S.Ct. 286, 62 L.Ed.2d 196 (1979) and Krzeminski v. Perini, 614 F.2d 121 (6th Cir. 1980) (a case not cited by the panel). Under these cases, error which is apparent on the trial record, which is of constitutional dimension, is reviewable in habeas corpus proceedings if state law allows review of such error. The leading case holding this is Judge Edward’s opinion in Berrier v. Egeler, where this court affirmed the grant of a writ of habeas corpus despite counsel’s failure to object at trial or raise the jury instruction issue in question on appeal within the state system. Berrier squarely relied on a “plain error” analysis-plain error which is reviewable within the state system, even if the state courts did not actually review it. Berrier was followed in Cook v. Borden-kircher and Rachel v. Bordenkircher as an alternative ground for decision. Both Cook and Rachel held that habeas corpus relief is available in cases of plain trial error. These decisions were further endorsed in Krzeminski v. Perini, 614 F.2d at 123 n.2 which stated: Where there is plain error in the record which is reviewable under state law, we can review it in a habeas corpus proceeding .... The Ohio state courts review plain error in jury instructions. ... Accordingly, we can do the same. The panel opinion in this case is completely at odds with these cases. As this court noted in Cook v. Bordenkircher, supra, at 119, plain trial error is reviewable in Kentucky, even absent an objection. We are thus not precluded from reviewing it in a habeas corpus proceeding. The statement in the panel opinion that “[t]his court has never ruled that federal habeas corpus review is proper under Wainwright based solely on an independent federal analysis of plain error” (620 F.2d at 114) is simply not true. II Wainwright is based on “considerations of comity and concerns for the orderly administration of criminal justice.” Id. 433 U.S. at 84, 97 S.Ct. at 2505, citing Francis v. Henderson, 425 U.S. 536, 538-39, 96 S.Ct. 1708, 1709-1710," }, { "docid": "1065293", "title": "", "text": "comply with state rules of procedure governing the timely presentation of federal constitutional claims forfeited the right to federal ha-beas corpus review of those claims absent a showing of “cause for noncompliance [with state procedure] and some showing of actual prejudice resulting from the alleged constitutional violation.” Id. at 84, 97 S.Ct. at 2505. Sykes, however, does not bar federal habeas corpus relief merely upon a showing that an adequate procedural ground was available to support a conviction; rather Sykes mandates that it must be demonstrated that the state court had relied upon the procedural default. Where a state appellate court did not rely on the procedural default, but reached the merits of a claim, the Sykes bar is inapplicable. The rationale of this rule requires that in instances where the state courts themselves decline to honor a procedural bar, the federal courts do no damage to precepts of comity and federalism by similarly addressing the merits of a claim. County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); Raper v. Mintzes, 706 F.2d 161 (6th Cir. 1983). While the petitioner did not raise ineffective assistance of counsel as error on the direct appeal, she did charge the error in her application for a delayed appeal. In denying her application for leave to appeal the Michigan Supreme Court noted: On order of the Court, the delayed application for leave to appeal is considered, and it is denied, because the Court is not persuaded that the questions presented should be reviewed by this Court. The motion for bond pending appeal is also considered, and it is denied. In Hockenbury v. Sowders, 620 F.2d 111 (6th Cir.1980), this court held “that a federal court must determine whether the petitioner’s failure to comply with the contemporaneous objection requirement was a substantial basis for the state court’s denial of petitioner’s claim”. This court suggested in that case that federal review of habeas corpus claims is not precluded when, even in instances where the petitioner failed to object at trial, the state court did not rely upon" }, { "docid": "864350", "title": "", "text": "the author of the panel opinion means. On the contrary, I advocate that we apply the rule as the state courts apply it. In this case, the Kentucky Supreme Court did not apply its contemporaneous objection requirement to bar review. Had the Kentucky court clearly done so, I would not have dissented. What I find objectionable is the panel’s straining to bar federal review because the state court was “cursory” and not “substantial” in its review. There is no question that the panel decision is in error. The reason why this case merits en banc treatment, however, is that the panel has cavalierly refused to follow four recent Sixth Circuit cases which control the question. I note that Chief Judge Edwards and Judges Cel-ebrezze and Jones voted in favor of en banc along with me. NATHANIEL R. JONES, Circuit Judge, dissenting from denial of rehearing. Because the panel’s opinion in Hocken-bury v. Sowders, 620 F.2d 111 (6th Cir. 1980) conflicts with several prior decisions of this Court, I heartily join in Parts I, II and III of my Brother Keith’s dissenting opinion. I write separately only to express my chagrin that the full court has failed to review en banc the panel’s treatment of exceptionally important issues of the construction of 28 U.S.C. § 2254. The opinion in Hockenbury distinguishes this Court’s decisions in Berrier v. Egeler, 583 F.2d 515 (6th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978), Rachel v. Bordenkircher, 590 F.2d 200 (6th Cir. 1978), and Cook v. Bordenkircher, 602 F.2d 117 (6th Cir.), cert. denied, 444 U.S. 936, 100 S.Ct. 286, 62 L.Ed.2d 196 (1979), but the distinctions, as Judge Keith has carefully explained, are illusory. The rule in this Circuit before Hockenbury was that a federal court could make an independent determination of the substantiality of federal constitutional questions raised in habeas corpus petitions where the state contemporaneous objection rule contained an exception in the case of manifest injustice. The decision in Cook v. Bordenkircher, 602 F.2d at 119 plainly establishes this rule by its reference to Miller v. North" }, { "docid": "23399869", "title": "", "text": "state procedural system. Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); Hockenberry v. Sowders, 620 F.2d 111, reh. denied, 633 F.2d 443 (6th Cir.), cert. denied, 450 U.S. 933, 101 S.Ct. 1395, 67 L.Ed.2d 367, reh. denied, 451 U.S. 933, 101 S.Ct. 2011, 68 L.Ed.2d 320 (1980); Cook v. Bordenkircher, 602 F.2d 117 (6th Cir.1979); Bell v. Watkins, 692 F.2d 999 (5th Cir.1982); Burns v. Estelle, 592 F.2d 1297 (5th Cir. 1979), aff’d en banc, 626 F.2d 396 (1980); Moran v. Estelle, 607 F.2d 1140 (5th Cir. 1979); Henson v. Wyrick, 634 F.2d 1080 (8th Cir.), cert. denied, 450 U.S. 958, 101 S.Ct. 1417, 67 L.Ed.2d 383 (1980); Quigg v. Crist, 616 F.2d 1107 (9th Cir.1980); Brinlee v. Crisp, 608 F.2d 839 (10th Cir.1979); cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733. See also Martinez v. Harris, 675 F.2d 51 (2d Cir.1982). We believe that when a state appellate court applies a procedural bar that has no foundation in the record or state law, the federal courts need not honor that bar. We do not by this holding sanction blanket federal court review of state procedural rulings, rather the rule is to ensure that the state courts do not block federal vindication of federal constitutional rights by procedural rulings that have no basis in state law or the facts of the particular case. In Ohio, the appellate courts will not entertain an objection on appeal that was not raised before the trial court “at a time when such error could have been avoided or corrected by the trial court.” State v. Gordon, 28 Ohio St.2d 45, 50, 276 N.E.2d 243 (1971). The underlying rationale of this rule is the same as that in the requirement of F.R.C.P. 51; that “the court should be given an opportunity to correct a mistake or defect . . . when it can be accomplished during the same trial.” Presley v. Norwood, 36 Ohio St.2d 29, 33, 303 N.E.2d 81 (1973). In Presley, the Supreme Court of Ohio held that the rationale used by the" }, { "docid": "68002", "title": "", "text": "which the trial judge instructed the jury that the case would have to be “decided” sometime rather than “disposed of” sometime. 391 F.2d at 355-57. The state court here likewise stated that this case “must be decided.” Unlike this case, however, the charge in Harris expressly directed the minority to consider the majority’s views. See id. at 352-53. The supplemental instruction given here is not one that we approve as fully addressing all the concerns expressed in cases coming to us on direct appeal. Viewing the totality of the circumstances, however, we cannot say that the instruction was so coercive as to deprive petitioner of his constitutional rights. Accordingly, the district court’s judgment denying the petition for a writ of habeas corpus is AFFIRMED. . At trial, petitioner failed to object to the supplemental instruction. Because the state appellate courts reached the merits of petitioner’s Allen -charge claim rather than denying review on a procedural ground, however, Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), poses no obstacle to review of the claim in this federal habeas proceeding. See, e.g., Hockenbury v. Sowders, 620 F.2d 111, 115 (6th Cir. 1980), cert, denied, 450 U.S. 933, 101 S.Ct. 1395, 67 L.Ed.2d 367 (1981); Cook v. Bor-denkircher, 602 F.2d 117, 119 (6th Cir.), cert, denied, 444 U.S. 936, 100 S.Ct. 286, 62 L.Ed.2d 196 (1979); cf. United States v. Markey, 693 F.2d 594, 597 (6th Cir. 1982) (in federal trial where no objection made, review Allen charge for plain error); United States v. Giacalone, 588 F.2d 1158, 1167 (6th Cir.1978) (same), cert, denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1045 (1979); United States v. LaRiche, 549 F.2d 1088, 1092 (6th Cir.) (same), cert, denied, 430 U.S. 987, 97 S.Ct. 1687, 52 L.Ed.2d 383 (1977). . Once an Allen charge is found coercive, the length of time between the giving of the charge and the rendering of the verdict becomes relevant to determine whether the defendant has been prejudiced by the giving of the coercive charge, Giacalone, 588 F.2d at 1168; Scott, 547 F.2d at 337;" }, { "docid": "2293261", "title": "", "text": "independent procedural state ground for denying petitioner’s claim which Wainwright requires this Court to honor in the absence of a showing of “cause” and “prejudice”. The District Court in the instant case found that application of the rule of Wainwright did not preclude review of petitioner’s claim because the comments and questions of the prosecutor amounted to “plain error”. A review of the language and rationale of Wainwright indicates that the District Court erred in making an inde pendent assessment of “plain error” rather than deferring to the state court’s application of its contemporaneous objection requirement. In reaching its conclusion the District Court relied, in part, on Minor v. Black, supra. This Court’s refusal in Minor to defer to the Kentucky court’s ruling on its contemporaneous objection requirement, however, was based on an application of the “deliberate bypass” rule which has since become improper under Wainwright. The District Court also relied on the “plain error” language contained in several of the post- Wainwright cases from this Court. In those cases, however, this Court either determined that review was not precluded under the state’s contemporaneous objection requirement, Berrier v. Egeler, 583 F.2d 515 (6th Cir. 1978), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978); Cook v. Bordenkircher, 602 F.2d 117 (6th Cir. 1979), or found that the “cause” and “prejudice” exception to the Wainwright rule had been met, Rachel v. Bordenkircher, 590 F.2d 200 (6th Cir. 1978). This Court has never ruled that federal habeas corpus review is proper under Wainwright based solely on an independent federal analysis of “plain error”. The first post- Wainwright case in this Circuit to refer to a “plain error” analysis was Berrier v. Egeler, supra. In that case the Court made a proper Wainwright analysis of the state’s contemporaneous objection requirement. Berrier v. Egeler, supra, 583 F.2d at 522. The Court subsequently noted, however, that the magnitude of the error would make it cognizable in a habeas proceeding as “plain error” even where no objection had been made at trial. The Court then cited a federal criminal case which applied the" }, { "docid": "864340", "title": "", "text": "v. Perini, 614 F.2d at 123 n.2 which stated: Where there is plain error in the record which is reviewable under state law, we can review it in a habeas corpus proceeding .... The Ohio state courts review plain error in jury instructions. ... Accordingly, we can do the same. The panel opinion in this case is completely at odds with these cases. As this court noted in Cook v. Bordenkircher, supra, at 119, plain trial error is reviewable in Kentucky, even absent an objection. We are thus not precluded from reviewing it in a habeas corpus proceeding. The statement in the panel opinion that “[t]his court has never ruled that federal habeas corpus review is proper under Wainwright based solely on an independent federal analysis of plain error” (620 F.2d at 114) is simply not true. II Wainwright is based on “considerations of comity and concerns for the orderly administration of criminal justice.” Id. 433 U.S. at 84, 97 S.Ct. at 2505, citing Francis v. Henderson, 425 U.S. 536, 538-39, 96 S.Ct. 1708, 1709-1710, 48 L.Ed.2d 149 (1976). In Wainwright itself, the state courts had consistently refused to review the claim which was at issue there absent a contemporaneous objection at trial. “But if neither the state legislature nor the state courts indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the State by entertaining the claim.” County Court v. Allen, 99 S.Ct. at 2223. See Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975); Quigg v. Crist, 616 F.2d 1107 (9th Cir. 1980); Moran v. Estelle, 607 F.2d 1140, 1141-43 (5th Cir. 1979); Canary v. Bland, 583 F.2d 887, 889-90 (6th Cir. 1978); Cannon v. Alabama, 558 F.2d 1211, 1216 n.12 (5th Cir. 1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978). Cook v. Bordenkircher, supra, makes it clear that Kentucky courts can review plain trial error to avoid manifest injustice. The panel agreed that this is true: “Kentucky’s contemporaneous objection requirement precludes appellate review of matters which are" }, { "docid": "3371858", "title": "", "text": "can operate as a bar to habeas corpus relief absent a showing of cause for non-compliance and prejudice to the petitioner. Wainwright itself dealt with a situation where failure to comply with a state procedural rule prevented an issue from being raised in the state trial court. Here, however, the alleged error is plainly evident in the record. This court has granted habeas corpus relief in the face of Wainwright objections in two cases where plain trial error occurred and counsel failed to comply with state contemporaneous objection rules. See Rachel v. Bordenkircher, 590 F.2d 200 (6th Cir. 1978) (prosecutorial comment on defendants failure to take the stand); Berrier v. Egeler, 583 F.2d 515 (6th Cir.) cert, denied 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978) (improper burdenshifting instruction by trial judge). More important, it is clear that under Kentucky law, failure to object at trial does not bar appellate review where “the court is satisfied that the substantial rights of the defendant have been prejudiced.” Kentucky R.Cr. 9.26 See also Kentucky CR 61.02; Stone v. Commonwealth, 456 S.W.2d 43 (Ky.1970). The Kentucky Supreme Court reviewed the allegedly prejudicial closing argument; we are not barred from examining it here. II. We are well aware that we possess no supervisory powers over state trial proceedings and that our scope of review over allegedly prejudicial arguments by state prosecutors is narrow. Prosecutorial argument must be so egregious so as to render the entire trial fundamentally unfair. See Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868,40 L.Ed.2d 431 (1974); Cf. Burks v. Egeler, 512 F.2d 221 (6th Cir. 1975). In Donnelly, supra, the Court found no constitutional error in [“ijsolated passages of a prosecutor’s argument, billed in advance to the jury as a matter of opinion not of evidence . . ” id. 416 U.S. at 646, 94 S.Ct. at 1875. Similarly, in Hayton v. Egeler, 555 F.2d 599, 604-05 (6th Cir. 1977), this court found no constitutional infirmity in an argument where the prosecutor referred to the defendant as a “bungler” and expressed his personal belief in defendant’s guilt." }, { "docid": "1422114", "title": "", "text": "Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). The only exception occurs where “neither the state legislature nor the state courts indicate that a federal constitutional claim is barred by some state procedural rule.” Ulster County Court v. Allen, supra, 442 U.S. at p. 154, 99 S.Ct. at 2216. The exception does not apply here. The Oklahoma Court of Criminal Appeals clearly refused to reach the assignment of error on state procedural grounds. Runnels v. State, supra, at p. 937. Initially, we note that Oklahoma does have a fundamental error exception to the contemporaneous objection rule. See Smith v. State, 599 P.2d 413 (Okl.Cr.1979), cert. denied, 444 U.S. 1022, 100 S.Ct. 681, 62 L.Ed.2d 654 (1980); Russell v. State, 528 P.2d 336 (Okl.Cr.1974); Neal v. State, 506 P.2d 936 (Okl.Cr.1973). Some have read Wainwright v. Sykes to allow complete federal review under these circumstances. Our interpretation of Wainwright v. Sykes differs. The Sykes rule was designed to avoid the effect of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1961)— which encouraged “sandbagging” on the part of defense lawyers, “who may take their chances on a verdict of not guilty in a state trial court with the intent to raise their constitutional claims in a federal habeas court if their gamble does not pay off.” Wainwright v. Sykes, supra, 433 U.S. at p. 89, 97 S.Ct. at 2508. Carving out fundamental error exceptions to Sykes would seriously undermine its force. As a panel of the Court of Appeals, we are not empowered to do so. Accord: Hockenbury v. Sowders, 620 F.2d 111 (6th Cir. 1980), opinion on rehearing, 633 F.2d 443 (6th Cir. 1980). Sykes dictates that cause and prejudice must be shown in order to obtain federal habeas corpus relief. With that dictate firmly in mind, we now turn to an examina tion of those elements. Implicit within our holding of prosecutorial error is a finding of prejudice. The magnitude of the error in this case rises to a denial of a fundamental right. The precise makeup of the cause" }, { "docid": "864341", "title": "", "text": "48 L.Ed.2d 149 (1976). In Wainwright itself, the state courts had consistently refused to review the claim which was at issue there absent a contemporaneous objection at trial. “But if neither the state legislature nor the state courts indicate that a federal constitutional claim is barred by some state procedural rule, a federal court implies no disrespect for the State by entertaining the claim.” County Court v. Allen, 99 S.Ct. at 2223. See Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975); Quigg v. Crist, 616 F.2d 1107 (9th Cir. 1980); Moran v. Estelle, 607 F.2d 1140, 1141-43 (5th Cir. 1979); Canary v. Bland, 583 F.2d 887, 889-90 (6th Cir. 1978); Cannon v. Alabama, 558 F.2d 1211, 1216 n.12 (5th Cir. 1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978). Cook v. Bordenkircher, supra, makes it clear that Kentucky courts can review plain trial error to avoid manifest injustice. The panel agreed that this is true: “Kentucky’s contemporaneous objection requirement precludes appellate review of matters which are not objected to, unless manifest injustice results.” (620 F.2d at 113). In fact the panel states, correctly, that “the nature of Kentucky’s contemporaneous objection rule required the court to make a cursory review of the merits of petitioner’s claim.” It is precisely because this is true that Wainwright v. Sykes does not apply. For the reasons outlined above, if the state contemporaneous objection rule, as a matter of state law, does not apply in cases of manifest injustice or plain trial error, then Wainwright v. Sykes cannot bar federal review. This is exactly what Berrier v. Egeler, Rachel v. Bordenkircher, Cook v. Bordenkircher, and Krzeminski v. Perini held. Cook v. Bordenkircher, supra, followed Miller v. State of North Carolina, 583 F.2d 701 (4th Cir. 1978). Miller is indistinguishable from this case. The North Carolina Supreme Court had affirmed a conviction on direct appeal where no objection to an egregious prosecutorial closing argument had been made at trial. North Carolina law, like Kentucky law, allowed limited review of unobjected-to trial error. The North Carolina court assigned" }, { "docid": "2293262", "title": "", "text": "that review was not precluded under the state’s contemporaneous objection requirement, Berrier v. Egeler, 583 F.2d 515 (6th Cir. 1978), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978); Cook v. Bordenkircher, 602 F.2d 117 (6th Cir. 1979), or found that the “cause” and “prejudice” exception to the Wainwright rule had been met, Rachel v. Bordenkircher, 590 F.2d 200 (6th Cir. 1978). This Court has never ruled that federal habeas corpus review is proper under Wainwright based solely on an independent federal analysis of “plain error”. The first post- Wainwright case in this Circuit to refer to a “plain error” analysis was Berrier v. Egeler, supra. In that case the Court made a proper Wainwright analysis of the state’s contemporaneous objection requirement. Berrier v. Egeler, supra, 583 F.2d at 522. The Court subsequently noted, however, that the magnitude of the error would make it cognizable in a habeas proceeding as “plain error” even where no objection had been made at trial. The Court then cited a federal criminal case which applied the federal procedural rule allowing review of “plain error”, even in the absence of a contemporaneous objection. This language should not be taken to mean that the application of the federal procedural rule on “plain error” can be substituted for an analysis of the state procedural rule under Wainwright. Such a holding would be contrary to the rule and rationale of Wainwright which allows the state rule to be an adequate and independent state ground for the decision and thus requires a focus on and application of the state’s procedural rule. Consequently, the District Court erred in applying an independent determination of “plain error”, rather than deferring to the state court’s application of its procedural rule in the absence of a showing of “cause” and “prejudice”. Most contemporaneous objection requirements, like the one in the instant case, include some provision for “manifest injustice” or “plain error”. Consequently, deference to a state court’s application of its procedural rule will, to some extent, make the availability of federal habeas corpus relief turn on the state’s assessment of the" }, { "docid": "23399882", "title": "", "text": "Cir.) cert. denied, 449 U.S. 1085, 101 S.Ct. 873, 66 L.Ed.2d 810 (1980); Berrier v. Egeler, 583 F.2d 515 (6th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978); Rachel v. Bordenkircher, 590 F.2d 200 (6th Cir.1978); Cook v. Bordenkircher, 602 F.2d 117 (6th Cir.), cert. denied, 444 U.S. 936, 100 S.Ct. 286, 62 L.Ed.2d 196 (1979); Krzeminski v. Perini, 614 F.2d 121 (6th Cir.1980). Yet, the holding in Hockenberry v. Sowders, 620 F.2d 111 (6th Cir.1979) appears to be in tension with that authority. See Hockenberry v. Sowders, 633 F.2d 443 (6th Cir.1979) (order denying rehearing) [especially the dissenting opinions of Judges Keith and Jones at 633 F.2d 445, 448]. Since we here find no adequate state procedural bar, we need not reach this issue. . We are well aware of the danger of a holding which would permit state prisoners to attack, in federal habeas actions, state appellate court applications of state procedural rules as a bar to the review of issues not raised at trial. To allow such a blanket rule would undo the cause and prejudice test enunciated in Wainwright and reaffirmed just last term in Isaac v. Engle, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Cf. Hockenberry v. Sowders, 633 F.2d 443 (6th Cir.1980). Yet, the Supreme Court in Ulster County, supra, also made clear that the comity concerns underlying the Wainwright rule do not weaken the federal court’s duty to vindicate federal constitutional rights. When, as here, the state essentially adopts the federal rule for procedural bars and it is clear from the record that the state appellate application of the procedural bar has no foundation, we believe the comity balance weighs most heavily on the side of not deferring to the obviously erroneous state procedural bar. The Fifth Circuit has recently stated that: the notion of comity which underlies the exhaustion doctrine must be understood not as a capitulation of federal power to state interests; rather, comity involves a delicate balance and compromise of both state and federal concerns. For as much as the unchanneled exercise" }, { "docid": "241875", "title": "", "text": "We are precluded from addressing that contention, however, by Lockett’s failure to object contemporaneously to the jury charge as she is required to do under Rule 30, Ohio R.Crim.P. After careful review of this record, I can find neither cause nor prejudice for the failure to comply with that rule. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Engle v. Isaac, 456 U.S. 107, 129, 102 S.Ct. 1558, 1572, 71 L.Ed.2d 783 (1982). Furthermore, I agree with the majority that at this particular moment in the Supreme Court’s understanding of “comity,” we are unable to find that the Ohio state courts “had a chance to mend their own fences” with respect to any erroneous jury charge. Engle, 456 U.S. at 129, 102 S.Ct. at 1572. Although federal courts may reach otherwise procedurally barred claims where the “petitioner’s failure to comply with the contemporaneous objection requirement was [not] a substantial basis for the state court’s denial of petitioner’s claims,” see County Court of Ulster v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); Hockenbury v. Sowders, 620 F.2d 111 (6th Cir.1980), or where the state court “chooses to ignore in its opinion a federal constitutional claim” the substance of which was “squarely presented,” see Wiley v. Sowders, 647 F.2d 642 (6th Cir.), cert. denied, 454 U.S. 1091, 102 S.Ct. 656, 70 L.Ed.2d 630 (1981); Butler v. Rose, 686 F.2d 1163 (6th Cir.1982), I agree that under the particular facts of this case the Ohio courts were not presented with the essence of Lockett’s current constitutional claim. As such, the Ohio courts did not have ample opportunity to “mend their own fences.” Engle, 456 U.S. at 129, 102 S.Ct. at 1572. We, therefore, return the question of the constitutionality of the jury charge employed in this case to the Ohio courts in the hope that they might indeed mend their own fences. I note that the Ohio legislature has begun such a fence-mending operation. The legislature amended its aggravated murder statute to insure that the jury charge issued in this case will not" }, { "docid": "864351", "title": "", "text": "III of my Brother Keith’s dissenting opinion. I write separately only to express my chagrin that the full court has failed to review en banc the panel’s treatment of exceptionally important issues of the construction of 28 U.S.C. § 2254. The opinion in Hockenbury distinguishes this Court’s decisions in Berrier v. Egeler, 583 F.2d 515 (6th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978), Rachel v. Bordenkircher, 590 F.2d 200 (6th Cir. 1978), and Cook v. Bordenkircher, 602 F.2d 117 (6th Cir.), cert. denied, 444 U.S. 936, 100 S.Ct. 286, 62 L.Ed.2d 196 (1979), but the distinctions, as Judge Keith has carefully explained, are illusory. The rule in this Circuit before Hockenbury was that a federal court could make an independent determination of the substantiality of federal constitutional questions raised in habeas corpus petitions where the state contemporaneous objection rule contained an exception in the case of manifest injustice. The decision in Cook v. Bordenkircher, 602 F.2d at 119 plainly establishes this rule by its reference to Miller v. North Carolina, 583 F.2d 701, 705-06 (4th Cir. 1978). This case raises two exceptionally important questions with respect to the construction of 28 U.S.C. § 2254: 1) If the state contemporaneous objection rule provides an exception in the case of “manifest injustice” or “plain error,” may the federal court in reviewing a petition for habeas corpus make its own determination of the substan-tiality of the federal constitutional question raised in the petition? 2) If the state court addresses a federal constitutional question on the merits and also indicates that an alternative ground for denying the criminal defendant’s appeal is the application of the contemporaneous objection rule, may a federal court review that federal constitutional question in a habeas corpus petition? Hockenbury provides a negative answer to both questions. The Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), did not answer either question. In Wainwright, the Florida procedural rule stood as an absolute bar to review by the state appellate courts of the issues raised. Justice White, concurring, believed" }, { "docid": "23399868", "title": "", "text": "prejudice, Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) precludes a federal court, as a matter of comity, from hearing an issue to which the state appellate courts applied a procedural bar. Yet, it must also be made clear that this rule is a matter of comity between the federal and state courts and should not be applied to preclude federal courts from hearing federal constitutional claims when to do so does no disrespect to the state courts and their procedural rules. Jackson v. Cupp, 693 F.2d 867 (9th Cir. 1982). Thus, in Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), the Supreme Court held that the Sykes rule does not apply when it is not clear that the state appellate court had applied a procedural bar. Furthermore, it is now well accepted that when the state appellate court ignores the state procedural default, the federal courts may also reach the merits on a habeas review. To do so does not denigrate the state procedural system. Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); Hockenberry v. Sowders, 620 F.2d 111, reh. denied, 633 F.2d 443 (6th Cir.), cert. denied, 450 U.S. 933, 101 S.Ct. 1395, 67 L.Ed.2d 367, reh. denied, 451 U.S. 933, 101 S.Ct. 2011, 68 L.Ed.2d 320 (1980); Cook v. Bordenkircher, 602 F.2d 117 (6th Cir.1979); Bell v. Watkins, 692 F.2d 999 (5th Cir.1982); Burns v. Estelle, 592 F.2d 1297 (5th Cir. 1979), aff’d en banc, 626 F.2d 396 (1980); Moran v. Estelle, 607 F.2d 1140 (5th Cir. 1979); Henson v. Wyrick, 634 F.2d 1080 (8th Cir.), cert. denied, 450 U.S. 958, 101 S.Ct. 1417, 67 L.Ed.2d 383 (1980); Quigg v. Crist, 616 F.2d 1107 (9th Cir.1980); Brinlee v. Crisp, 608 F.2d 839 (10th Cir.1979); cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733. See also Martinez v. Harris, 675 F.2d 51 (2d Cir.1982). We believe that when a state appellate court applies a procedural bar that has no foundation in the record or state law, the" }, { "docid": "864337", "title": "", "text": "petitioner’s failure to object at the trial, there would be little or no deference to a state’s decision on the independent procedural ground and the decision in Wainwright would have little or no effect. This Court is not at liberty to construe Supreme Court cases so as to render them totally without effect. Accordingly, upon consideration of the Court, it is ORDERED that the petition for rehearing be and hereby is DENIED. KEITH, Circuit Judge, dissenting from denial of rehearing en banc. This case presents a constitutional violation of the state habeas petitioner’s rights under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and Charles v. Anderson, 610 F.2d 417 (6th Cir. 1980). The district court granted the writ of habeas corpus, and there is apparently no dispute that the petitioner’s constitutional rights were violated. Instead of affirming the district court, the panel conducted an independent analysis under Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) and remanded the case to the district court in light of that analysis. Hockenbury v. Sow-ders, 620 F.2d 111 (6th Cir. 1980). Unfortunately, the panel’s opinion is at odds with established authority in the circuit. Today, the en banc court refuses to act in the face of a clear affront to circuit precedent. I must respectfully dissent. I The problem in this case was that, although there was clear constitutional error in the state trial, counsel never objected to it. Thus, this case presents a threshold question whether federal habeas corpus relief is barred by the Supreme Court’s decision in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). This was the doctrine seized upon by the panel to deny relief to the petitioner. The panel decision cannot be reconciled with a series of eases in this court which clearly established this circuit’s view of Wainwright: Berrier v. Egeler, 583 F.2d 515 (6th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 354, 58 L.Ed.2d 347 (1978); Rachel v. Bordenkircher, 590 F.2d 200 (6th Cir. 1978); Cook v. Bordenkircher, 602 F.2d" } ]

[ { "docid": "14430622", "title": "", "text": "would outweigh the benefit accruing to the public from a conviction; where the strength of evidence of criminal conduct is doubtful even though charges were filed in good faith; where witnesses or evidence are no longer available; where evidence is subsequently discovered that points to the criminal case defendant’s innocence; or where criminal charges are not the product of prosecutorial misconduct and both sides benefit substantially from a balanced settlement in the sense that both avoid exposure to potential liabilities and expenses. Rumery also requires a court reviewing a release-dismissal agreement to weigh or balance the interests on both sides of the issue of enforceability. Rumery, 480 U.S. at 392, 107 S.Ct. at 1191; id. at 399, 107 S.Ct. at 1195 (O’Connor, J., concurring in part and in the judgment). Therefore, in a case where there existed substantial evidence of police misconduct, a court reviewing the release-dismissal agreement could conclude that the public’s interest in vindicating constitutional rights and deterring police misconduct by permitting a specific civil complaint to go forward, despite a release, outweighs a general prosecutorial interest in helping to manage a heavy case load. III. For the foregoing reasons, the judgment of the district court is reversed and this cause is remanded for further proceedings consistent with this opinion. The district court should also reconsider plaintiffs motions to amend his complaint should it conclude that the release is not a bar to plaintiffs action. . Berry v. Peterson, 887 F.2d 635, 636 (5th Cir.1989) (Rumery permits enforcement of a release-dismissal agreement if (1) it was voluntary and if there is no evidence of (2) prosecutorial overreaching or (3) a disservice to the public interest); Lynch v. City of Alhambra, 880 F.2d 1122, 1126 (9th Cir.1989) (Rumery requires (a) volun-tariness and .(b) \"enforcement is in the public interest,” though the court’s \"public interest” analysis also encompassed prosecutorial misconduct); Haynesworth v. Miller, 820 F.2d 1245, 1256 (D.C.Cir.1987) (Rumery held as it did “in the face of overwhelming evidence that the bargain was entered into voluntarily, and that the prosecutor acted reasonably and in pursuit of legitimate law enforcement goals”)." } ]

[ { "docid": "11784441", "title": "", "text": "was offset by the presence of a knowledgeable and experienced defense attorney. Second, like the defendant in Rumery, Hill was not in custody when he made the agreement. Third, and again like the. defendant in Rumery, Hill was represented by counsel capable of advising him as to the best course of action. Hill’s counsel also drafted the release-dismissal agreement. Fourth, Hill had over two months to consider the agreement before signing it; the defendant in Rumery had only three days in which to decide. Id. at 394, 107 S.Ct. at 1192 (plurality opinion). Fifth, the charges against Hill were relatively minor, thus limiting the coerciveness of the possibility that he would be convicted. In contrast, the defendant in Rumery faced a sentence of up to seven years in prison. Id. at 402, 107 S.Ct. at 1196 (O’Connor, J., concurring in part and in the judgment). Sixth, Hill’s release was executed under the supervision of a state court judge. The defendant in Rumery did not enjoy similar treatment. Id. at 403, 107 S.Ct. at 1197. In short, there is no reason to doubt that Hill’s “choice to enter into a release-dismissal agreement” was a “highly rational judgment that the certain benefits of escaping criminal prosecution exceeded] the speculative benefits of prevailing in a civil action.” Id. at 394, 107 S.Ct. at 1192. (plurality opinion). The City has carried its burden in this regard. B. Prosecutorial Overreaching. The Rumery plurality recognized that prosecutors may be tempted “to bring frivolous charges, or to dismiss meritorious charges, to protect the interests of other officials.” Id. at 395, 107 S.Ct. at 1193. The public interest “is disserved when a prosecutor ... brings trumped-up charges to extort a release of civil claims.” Lynch v. City of Alhambra, 880 F.2d 1122, 1128 n. 9 (9th Cir.1989). Thus, Rwmery upheld a release-dismissal agreement where it was voluntarily-made and there was “no evidence of prosecu-torial overreaching” apart from the agreement itself. Berry v. Peterson, 887 F.2d 685, 636, 640 (5th Cir.1989). Hill supports the allegation of prosecutorial misconduct with the affidavit of his mother, who avers that she telephoned" }, { "docid": "8464394", "title": "", "text": "had a legitimate purpose for entering into the agreement, and whether enforcement of the waiver otherwise furthers the public interest. 480 U.S. at 398, 107 S.Ct. 1187. Rumery’s principal holding that waiver-dismissal agreements are not per se unenforceable left many questions unanswered. Decisions from a number of our sister circuits have begun to provide some answers. For example, as Justice O’Con-nor’s separate opinion in Rumery suggested, it is the defendants in a federal civil rights suit who have the burden of proving by a preponderance of the evidence that a waiver was entered into voluntarily, that there was no prosecutorial overreaching, and that the enforcement of the waiver furthers the public interest. See id. at 401, 107 S.Ct. 1187 (O’Connor, J.) (concurring in part and concurring in the judgment); Livingstone v. North Belle Vernon Borough, 12 F.3d 1205, 1214 (3d Cir.1993); Woods v. Rhodes, 994 F.2d 494 (8th Cir.1993); Lynch v. City of Alhambra, 880 F.2d 1122 (9th Cir.1989). This means that a district court properly applying the Rumery test cannot grant summary judgment in a release-dismissal case like this one unless it is clear as a matter of law that there are no material issues of fact with respect to these prerequisites to enforceability. Livingstone, 12 F.3d at 1215 (remanding for determination whether there were disputed issues of material fact regarding voluntariness); Woods, 994 F.2d at 500 (finding reasonable minds could not differ on whether release was voluntary or secured by prosecutorial overreaching); Lynch, 880 F.2d at 1129 n. 10 (recognizing that “the inquiry that the district court must perform undermines, to some extent, the very purpose of the release-dismissal” but finding that “such an inquiry is necessary to conform with the public policy requirement announced by the Supreme Court in Rumery”). The district court in this case made none of the necessary factual findings or legal determinations required by Rumery. The majority, although it cites Rumery, seems to think that because Rumery rejected the proposition that releases are never enforceable, this must mean that they are always enforceable. Furthermore, the language the majority uses compels the conclusion that" }, { "docid": "8464393", "title": "", "text": "opinion (which did command a Court), Justice Powell wrote: We begin by noting the source of the law that governs this case. The agreement purported to waive a right to sue conferred by a federal statute. The question whether the policies underlying that statute may in some circumstances render that waiver unenforceable is a question of federal law. We resolve this question by reference to traditional common-law principles, as we have resolved other questions about the principles governing § 1983 actions.... The relevant principle is well established: a promise is unenforceable if the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement. 480 U.S. at 392, 107 S.Ct. 1187 (citation omitted). In Part III-A of the opinion, which also garnered the votes of a majority of the Justices, the Court rejected the notion that waiver-release agreements were per se void as against public policy. Instead, Rumery adopted a case-by-case approach which requires courts to assess whether the waiver was entered into voluntarily, whether the prosecutor had a legitimate purpose for entering into the agreement, and whether enforcement of the waiver otherwise furthers the public interest. 480 U.S. at 398, 107 S.Ct. 1187. Rumery’s principal holding that waiver-dismissal agreements are not per se unenforceable left many questions unanswered. Decisions from a number of our sister circuits have begun to provide some answers. For example, as Justice O’Con-nor’s separate opinion in Rumery suggested, it is the defendants in a federal civil rights suit who have the burden of proving by a preponderance of the evidence that a waiver was entered into voluntarily, that there was no prosecutorial overreaching, and that the enforcement of the waiver furthers the public interest. See id. at 401, 107 S.Ct. 1187 (O’Connor, J.) (concurring in part and concurring in the judgment); Livingstone v. North Belle Vernon Borough, 12 F.3d 1205, 1214 (3d Cir.1993); Woods v. Rhodes, 994 F.2d 494 (8th Cir.1993); Lynch v. City of Alhambra, 880 F.2d 1122 (9th Cir.1989). This means that a district court properly applying the Rumery test cannot grant summary judgment in" }, { "docid": "11413288", "title": "", "text": "And it is undoubtedly true that we are more likely to misstep when we decide questions without any briefing by counsel. It is more prudent to resist this powerful seduction to think ourselves equal to the great common law jurists and make pronouncements on every possible legal question, presented or not. Indeed, it would be prudent to abstain here, where the county has waived immunity and we do not have the benefit of any additional briefing. I nevertheless concur in the judgment because I would hold the release-dismissal agreement here — though unwise and potentially unseemly — enforceable. This Court, in reliance on the Supreme Court’s opinion in Newton v. Rumery, 480 U.S. 386, 399, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987), has explained that a release-dismissal agreement is enforceable if it was (a) voluntarily made, (b) not the product of prosecutorial overreaching, and (c) in the public interest. Coughlen v. Coots, 5 F.3d 970, 973 (6th Cir.1993) (citing Rumery, 480 U.S. at 399, 107 S.Ct. 1187) (O’Connor, J„ concurring in part and concurring in the judgment). Some of the cases have used “prosecutorial misconduct” instead of “prosecutorial overreach,” but, while a showing of legally cognizable police “misconduct” would be sufficient, it is not necessary. The inquiry under Rumery and our cases is whether the agreement was voluntary and whether the agreement furthered the public interest. For example, Rumery’s own attorney drafted the release-dismissal agreement and counseled his client at length on its benefits and implications, and the prosecutor’s decision to seek a civil release was motivated largely by a desire to insulate Mary Deary, the key witness in a related aggravated sexual assault case, from the need to testify at Rumery’s criminal trial or in his civil suit. This case lacks most of those compelling facts. Here, the prosecutor sought to insulate people involved in some sort of altercation from civil liability. Choosing to prosecute only Cady was well within the prosecutor’s discretion, but it seems a bit bizarre that he would seek to prevent Cady from filing a civil suit. Although prosecutors are entrusted with protecting the public," }, { "docid": "11591565", "title": "", "text": "of the public that are served simply by the termination of a prosecution (such as avoiding the costs of that prosecution), and those that can only be served by enforcing a release-dismissal agreement. A possible example of the latter type of interest is provided by Rumery itself. In Rum-ery the prosecutor's reason for concluding a release-dismissal agreement was to abort two trials — Rumeiy’s criminal trial and the civil suit expected to be brought by Rumeiy — which would have required the testimony of a potential witness whose testimony was needed by the prosecutor in another trial and for whom testifying was likely to be traumatic. Only enforcement of the release-dismissal agreement could have served this interest. See Seth F. Kreimer, Releases, Redress and Police Misconduct: Reflections on Agreements to Waive Civil Rights Actions in Exchange for Dismissal of Criminal Charges, 136 U. Pa. L.Rev. 851, 932-35 (1988) (arguing that the courts should pay close attention to this class of public interests in analyzing the enforceability of release-dismissal agreements). . In Livingstone I, we observed that, although the ultimate question of whether enforcement of a release-dismissal agreement is in the public interest is a question of law for the court, \"there may be factual issues intertwined with the legal issues, such as whether the public interest reason proffered by the prosecutor is the actual reason that motivated the prosecutor to enter into the release-dismissal agreement.” 12 F.3d at 1215. Prosecutorial motivation is, accordingly, a jury question. The question whether there is substantial evidence of police misconduct, by contrast, is not. The process of weighing the evidence of police misconduct against the prosecutor’s asserted reasons for concluding a release-dismissal agreement is part of the broad task of balancing the public interests that favor and that disfavor enforcement. That task is one for the court. See Berry v. Peterson, 887 F.2d 635, 637 (5th Cir.1989). . Both Justice Powell’s plurality opinion and Justice O’Connor’s concurring opinion found that there was strong evidence that the agreement at issue in Rumery had been concluded voluntarily. Indeed, Justice Powell said that it was “clear” that" }, { "docid": "14430614", "title": "", "text": "“in some cases these agreements may infringe important interests of the criminal defendant and of society as a whole.” Id. at 392, 107 S.Ct. at 1192. Justice O’Connor described such cases in her concurrence: Permitting such releases may tempt public officials to bring frivolous criminal charges in order to deter meritorious civil complaints. The risk and expense of a criminal trial can easily intimidate even an innocent person whose civil and constitutional rights have been violated. The coercive power of criminal process may be twisted to serve the end of suppressing complaints against official abuse, to the detriment not only of the victim of. such abuse, but also of society as a whole. Id. at 400, 107 S.Ct. at 1196 (O’Connor, J., concurring in part and in the judgment) (citation omitted). See also id. at 394, 107 S.Ct. at 1193 (plurality opinion) (“We can agree that in some eases there may be a substantial basis for [the] concern [that trumped-up criminal charges will be used against criminal defendants making civil rights claims against police].”). The Court concluded that the validity of such agreements should be determined by courts using a “ease-by-case approach [which] appropriately balances the important interests on both sides of the question of the enforceability of these agreements.” Id. at 399, 107 S.Ct. at 1195 (O’Connor, J., concurring in part and in the judgment); see id. at 392, 107 S.Ct. at 1191 (release-dismissal is unenforceable if “the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement”). While the majority did not expressly enumerate those “important interests” which must be balanced when evaluating a particular release-dismissal agreement, it did conclude that the Rumery agreement was valid because it was voluntary, there was, no evidence of prosecutorial misconduct, and enforcement of the agreement would not adversely affect relevant public interests. Id. at 398, 107 S.Ct. at 1195. Those circuit courts which have had occasion to apply Rumery have taken these three concerns to be the “important interests” that should be considered by a court when determining whether a specific agreement" }, { "docid": "22069707", "title": "", "text": "unseemly public scrutiny or embarrassment”). We note that two Courts of Appeals have applied a voluntariness standard to determine the enforceability of agreements entered into after trial, in which the defendants released possible § 1983 claims in return for sentencing considerations. See Bushnell v. Rossetti, 760 F. 2d 298 (CA4 1984); Jones v. Taber, 648 F. 2d 1201 (CA9 1981). We have no occasion in this case to determine whether an inquiry into voluntariness alone is sufficient to determine the enforceability of release-dismissal agreements. We also note that it would be helpful to conclude release-dismissal agreements under judicial supervision. Although such supervision is not essential to the validity of an otherwise-proper agreement, it would help ensure that the agreements did not result from prosecutorial misconduct. Justice O’Connor, concurring in part and concurring in the judgment. I join in Parts I, II, III-A, IV, and V of the Court’s opinion. More particularly, I join the Court in disapproving the Court of Appeals’ broad holding that a criminal defendant’s promise not to sue local governments and officials for constitutional violations arising out of his arrest and prosecution, given in exchange for the prosecutor’s agreement to dismiss pending criminal charges, is void as against public policy under all circumstances. I agree with the Court that a case-by-case approach appropriately balances the important interests on both sides of the question of the enforceability of these agreements, and that on the facts of this particular, case Bernard Rumery’s covenant not to sue is enforceable. I write separately, however, in order to set out the factors that lead me to conclude that this covenant should be enforced and to emphasize that it is the burden of those relying upon such covenants to establish that the agreement is neither involuntary nor the product of an abuse of the criminal process. As the Court shows, ante, at 395-396, 398, there are substantial policy reasons for permitting release-dismissal bargains to be struck in appropriate cases. Certainly some §1983 litigation is meritless, and the inconvenience and distraction of public officials caused by such suits is not inconsiderable. Moreover, particular release-dismissal" }, { "docid": "11591507", "title": "", "text": "opinion that it is the burden of the defendants to demonstrate that “a particular release executed in exchange for the dismissal of criminal charges was voluntarily made, not the product of prosecutorial overreaching, and in the public interest.” Rumery, 480 U.S. at 401, 107 S.Ct. at 1196. In Cain v. Darby Borough, 7 F.3d 377 (3d Cir.1993) (in banc), cert. denied, 510 U.S. 1195, 114 S.Ct. 1303, 127 L.Ed.2d 655 (1994), this court addressed the circumstances in which enforcement of a release-dismissal agreement will be in the public interest. Cain made clear that the above-quoted passage from Justice O’Connor’s Rumery concurrence should not be read to suggest that the “prosecutorial overreaching” and “public interest” questions are to be analyzed separately; rather, “the concept of prosecutorial misconduct is embedded in a larger inquiry into whether enforcing the release would advance the public interest.” Id. at 380; see also Lynch v. City of Alhambra, 880 F.2d 1122, 1126 n. 6 (9th Cir.1989) (arguing that there is only one inquiry); but compare Woods v. Rhodes, 994 F.2d 494, 500-01 (8th Cir.1993) (apparently treating the analyses as distinct). Cain found that a party seeking to demonstrate that the enforcement of a release-dismissal agreement is in the public interest must make two distinct showings, which we will call here Cain’s “objective” and “subjective” elements. Cain’s objective element requires both that “the facts known to the prosecutor when the agreement was reached” must have sufficed to support the prosecutor’s proffered public interest reason for concluding the agreement, and that this public-interest reason be a legitimate one. 7 F.3d at 381. Relevant public interests include the interest, cited by the Court in Rumery, in avoiding the costs and disruptions associated with defending “marginal” or “frivolous” civil rights actions, Rumery, 480 U.S. at 395, 107 S.Ct. at 1193, and the countervailing interest, also cited by the Court, in detecting and deterring official misconduct. See Rumery, 480 U.S. at 394, 107 S.Ct. at 1192-93; id. at 400, 107 S.Ct. at 1195-96 (O’Connor, J., concurring). Cain’s subjective element is.its requirement that: the public interest reason proffered by the prosecutor must" }, { "docid": "11591506", "title": "", "text": "the boroughs, with Washington Township, third-party beneficiaries of the release-dismissal agreement), or (2) as merely making an offer to those two municipalities. The question of which of these readings of Ceraso’s remarks is correct was not argued before the district court. On remand, the district court should permit the parties to brief this question. In resolving this issue, the district court may consult all of the sources to which courts usually refer in determining the meaning of ambiguous contractual language, including, for instance, the course of the negotiations between the parties. IV. The Public Interest In Town of Newton v. Rumery, 480 U.S. 886, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987), a four-Justice plurality found that, as a matter of federal common law, a release-dismissal agreement will operate to bar a section 1988 claim unless “the interest in [the agreement’s] enforcement is outweighed in the circumstances by a public policy harmed by the enforcement of the agreement.” Id. at 392, 107 S.Ct. at 1191. Justice O’Connor, whose fifth vote was dispositive, noted in a concurring opinion that it is the burden of the defendants to demonstrate that “a particular release executed in exchange for the dismissal of criminal charges was voluntarily made, not the product of prosecutorial overreaching, and in the public interest.” Rumery, 480 U.S. at 401, 107 S.Ct. at 1196. In Cain v. Darby Borough, 7 F.3d 377 (3d Cir.1993) (in banc), cert. denied, 510 U.S. 1195, 114 S.Ct. 1303, 127 L.Ed.2d 655 (1994), this court addressed the circumstances in which enforcement of a release-dismissal agreement will be in the public interest. Cain made clear that the above-quoted passage from Justice O’Connor’s Rumery concurrence should not be read to suggest that the “prosecutorial overreaching” and “public interest” questions are to be analyzed separately; rather, “the concept of prosecutorial misconduct is embedded in a larger inquiry into whether enforcing the release would advance the public interest.” Id. at 380; see also Lynch v. City of Alhambra, 880 F.2d 1122, 1126 n. 6 (9th Cir.1989) (arguing that there is only one inquiry); but compare Woods v. Rhodes, 994 F.2d 494," }, { "docid": "14430621", "title": "", "text": "not appear to create a particularly difficult hurdle for the prosecutor to clear. Indeed, the reason proffered by the prosecutor for the release-dismissal agreement in this case — “to aid in the disposition of its heavy case load” — would probably suffice under ordinary circumstances. See id. at 401, 107 S.Ct. at 1196 (O’Connor, J., concurring in part and in the judgment) (citing “allocation of criminal justice resources” as a “legitimate criminal justice” concern). Release-dismissal agreements also can be legitimate criminal justice tools in situations where police misconduct is alleged, but the prosecutor is genuinely unable to ascertain the truth surrounding the allegation. As the Ninth Circuit noted in Lynch v. City of Alhambra, 880 F.2d 1122 (9th Cir.1989), release-dismissal agreements can allow prosecutors to “achieve a rough substantial justice where the ‘true’ facts of the case are not known” by “allow[ing] everyone to declare the case a draw and go home.” Id. at 1127 n. 8. Examples of other legitimate criminal justice objectives that come to mind are situations where the cost of prosecution would outweigh the benefit accruing to the public from a conviction; where the strength of evidence of criminal conduct is doubtful even though charges were filed in good faith; where witnesses or evidence are no longer available; where evidence is subsequently discovered that points to the criminal case defendant’s innocence; or where criminal charges are not the product of prosecutorial misconduct and both sides benefit substantially from a balanced settlement in the sense that both avoid exposure to potential liabilities and expenses. Rumery also requires a court reviewing a release-dismissal agreement to weigh or balance the interests on both sides of the issue of enforceability. Rumery, 480 U.S. at 392, 107 S.Ct. at 1191; id. at 399, 107 S.Ct. at 1195 (O’Connor, J., concurring in part and in the judgment). Therefore, in a case where there existed substantial evidence of police misconduct, a court reviewing the release-dismissal agreement could conclude that the public’s interest in vindicating constitutional rights and deterring police misconduct by permitting a specific civil complaint to go forward, despite a release, outweighs" }, { "docid": "11784438", "title": "", "text": "falls. “The question whether the policies underlying [§ 1983] may in some circumstances render [such an agreement] unenforceable is a question of federal law.” Town of Newton v. Rumery, 480 U.S. 386, 392, 107 S.Ct. 1187, 1191, 94 L.Ed.2d 405 (1987) (plurality opinion). The majority in Rumery reversed the decision of the court of appeals that there should be a -per se rule of invalidating release-dismissal agreements in eases of this kind. The plurality in Rumery gave the following reasons, among others, why such agreements may be upheld as valid and binding on the parties concerned: [T]he court [of appeals] overstated the perceived problems and also failed to credit the significant public interests that such agreements can further. In many cases a defendant’s choice to enter into a release-dismissal agreement will reflect a highly rational judgment that the certain benefits of escaping criminal prosecution exceed the speculative benefits of prevailing in an civil action. Id. at 392, 394, 107 S.Ct. at 1191, 1192. Justice O’Connor reflected the swing vote position of the majority in her separate concurrence: I agree with the Court that a case-by-case approach appropriately balances the important interests on both sides of the question of the enforceability of these agree- ments_ I write separately ... to emphasize that it is the burden of those relying upon such covenants to establish that the agreement is neither involuntary nor the product of an abuse of the criminal process. Id. at 399, 107 S.Ct. at 1195 (O’Connor, J., concurring in part and in the judgment). Based on the foregoing, the City and its officers must establish the enforceability of the release-dismissal agreement because they are asserting the agreement as a defense to Hill’s § 1983 claim.. Coughlen v. Coots, 5 F.3d 970, 973 (6th Cir.1993). To do this, they must show that: (1) the agreement was voluntary, (2) there is no evidence of prosecutorial overreaching, and (3) enforcement of the agreement will not adversely affect relevant public interests. Coughlen, 5 F.3d at 974. The following analysis shows that the City and its officers have met their burden and are entitled" }, { "docid": "14430620", "title": "", "text": "a meritorious civil claim, files frivolous criminal charges in order to protect the police officers. Accordingly, should a court conclude that a prosecutor secured a release-dismissal bargain in the face of substantial evidence of police misconduct, the court could take this as evidence of prosecutorial misconduct, since it would demonstrate that “the coercive power of criminal process” was being “twisted to serve the end of suppressing complaints against official abuse, to the detriment not only of the victim of such abuse, but also of society as a whole.” Id. at 400, 107 S.Ct. at 1196 (O’Connor, J., concurring in part and in the judgment). The least well-defined element of a Rumery analysis is the consideration of whether enforcement of the agreement will “adversely affect the relevant public interests.” Id. at 398, 107 S.Ct. at 1195. The majority justices in Rumery suggested that this standard can be satisfied if the prosecutor demonstrates that obtaining the release was motivated by an independent, legitimate criminal justice objective. Id. at 398, 401-02, 107 S.Ct. at 1195, 1196-97. This does not appear to create a particularly difficult hurdle for the prosecutor to clear. Indeed, the reason proffered by the prosecutor for the release-dismissal agreement in this case — “to aid in the disposition of its heavy case load” — would probably suffice under ordinary circumstances. See id. at 401, 107 S.Ct. at 1196 (O’Connor, J., concurring in part and in the judgment) (citing “allocation of criminal justice resources” as a “legitimate criminal justice” concern). Release-dismissal agreements also can be legitimate criminal justice tools in situations where police misconduct is alleged, but the prosecutor is genuinely unable to ascertain the truth surrounding the allegation. As the Ninth Circuit noted in Lynch v. City of Alhambra, 880 F.2d 1122 (9th Cir.1989), release-dismissal agreements can allow prosecutors to “achieve a rough substantial justice where the ‘true’ facts of the case are not known” by “allow[ing] everyone to declare the case a draw and go home.” Id. at 1127 n. 8. Examples of other legitimate criminal justice objectives that come to mind are situations where the cost of prosecution" }, { "docid": "20359751", "title": "", "text": "of a release-dismissal agreement if (1) it was voluntary; (2) there is no evidence of prosecutorial misconduct; and (3) enforcement would not adversely affect the public interest. Coughlen v. Coots, 5 F.3d 970, 973 (6th Cir.1993); Cain v. Darby Borough, 7 F.3d 377, 380 (3rd Cir.1993); Berry v. Peterson, 887 F.2d 635, 636 (5th Cir.1989); Lynch v. City of Alhambra, 880 F.2d 1122, 1126 (9th Cir.1989); Haynesworth v. Miller, 820 F.2d 1245, 1256 (D.C.Cir.1987); Hall v. Ochs, 817 F.2d 920, 923 (1st Cir.1987) (release-dismissal agreement must be voluntary); see also, pre-Rumery ease of Bushnell v. Rossetti, 750 F.2d 298, 302 (4th Cir.1984) (release-dismissal agreements can only be enforced if the decision to release was voluntary, deliberate, and informed). From the text of Rule 56(c) of the Federal Rules of Civil Procedure, it is clear that a summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Motions for summary judgment impose a difficult standard on the movant; for, it must be obvious that no rational trier of fact could find for the nonmoving party. Miller v. Federal Deposit Ins. Corp., 906 F.2d 972, 974 (4th Cir.1990). However, the “mere existence of a scintilla of evidence” favoring the nonmoving party will not prevent entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). To withstand such a motion, the nonmoving party must offer evidence from which “a fair-minded jury could return a verdict for the [party].” Id. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987). Such evidence must consist of facts which are material, meaning that the facts might affect the outcome of the suit under applicable law, as well as genuine, meaning that they create fair doubt rather than encourage mere speculation." }, { "docid": "11784439", "title": "", "text": "separate concurrence: I agree with the Court that a case-by-case approach appropriately balances the important interests on both sides of the question of the enforceability of these agree- ments_ I write separately ... to emphasize that it is the burden of those relying upon such covenants to establish that the agreement is neither involuntary nor the product of an abuse of the criminal process. Id. at 399, 107 S.Ct. at 1195 (O’Connor, J., concurring in part and in the judgment). Based on the foregoing, the City and its officers must establish the enforceability of the release-dismissal agreement because they are asserting the agreement as a defense to Hill’s § 1983 claim.. Coughlen v. Coots, 5 F.3d 970, 973 (6th Cir.1993). To do this, they must show that: (1) the agreement was voluntary, (2) there is no evidence of prosecutorial overreaching, and (3) enforcement of the agreement will not adversely affect relevant public interests. Coughlen, 5 F.3d at 974. The following analysis shows that the City and its officers have met their burden and are entitled to summary judgment. A. The Voluntariness of the Agreement. The Rumery plurality set forth four factors for determining whether a release-dismissal agreement is voluntary: (1) the sophistication of the criminal defendant; (2) whether the defendant was in custody when he made the agreement; (3) whether the defendant was represented by counsel who drafted the agreement; and (4) whether the defendant had ample time to consider the agreement before signing it. See Rumery, 480 U.S. at 394, 107 S.Ct. at 1192 (plurality opinion). Justice O’Connor’s concurrence also weighed the criminal defendant’s sophistication and the circumstances surrounding execution of the release but listed two additional factors that are relevant to a determination regarding voluntariness: (5) the nature of the criminal charges and (6) whether the agreement was formed under judicial supervision. Id. at 401-02, 107 S.Ct. at 1196-97. (O’Connor, J., concurring in part and in the judgment). The release-dismissal agreement in this case was entered voluntarily under the factors listed in Rumery. First, although Hill lacked sophistication, unlike the criminal defendant in Rumery, his lack of sophistication" }, { "docid": "11784437", "title": "", "text": "Hill claims the district court erred in granting summary judgment against him. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In responding to a summary judgment motion, the non-moving party must set “forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Review of a district court’s grant of summary judgment is de novo. Monks v. General Elec. Co., 919 F.2d 1189, 1192 (6th Cir.1990). The propriety of summary judgment turns on the validity of the release-dismissal agreement, in which Hill waived his right to file a civil.rights action (42 U.S.C. §-1983) in return for the prosecutor’s dismissal of pending criminal charges. Thus, Hill’s § 1983 claim stands only if the agreement falls. “The question whether the policies underlying [§ 1983] may in some circumstances render [such an agreement] unenforceable is a question of federal law.” Town of Newton v. Rumery, 480 U.S. 386, 392, 107 S.Ct. 1187, 1191, 94 L.Ed.2d 405 (1987) (plurality opinion). The majority in Rumery reversed the decision of the court of appeals that there should be a -per se rule of invalidating release-dismissal agreements in eases of this kind. The plurality in Rumery gave the following reasons, among others, why such agreements may be upheld as valid and binding on the parties concerned: [T]he court [of appeals] overstated the perceived problems and also failed to credit the significant public interests that such agreements can further. In many cases a defendant’s choice to enter into a release-dismissal agreement will reflect a highly rational judgment that the certain benefits of escaping criminal prosecution exceed the speculative benefits of prevailing in an civil action. Id. at 392, 394, 107 S.Ct. at 1191, 1192. Justice O’Connor reflected the swing vote position of the majority in her" }, { "docid": "11591566", "title": "", "text": "that, although the ultimate question of whether enforcement of a release-dismissal agreement is in the public interest is a question of law for the court, \"there may be factual issues intertwined with the legal issues, such as whether the public interest reason proffered by the prosecutor is the actual reason that motivated the prosecutor to enter into the release-dismissal agreement.” 12 F.3d at 1215. Prosecutorial motivation is, accordingly, a jury question. The question whether there is substantial evidence of police misconduct, by contrast, is not. The process of weighing the evidence of police misconduct against the prosecutor’s asserted reasons for concluding a release-dismissal agreement is part of the broad task of balancing the public interests that favor and that disfavor enforcement. That task is one for the court. See Berry v. Peterson, 887 F.2d 635, 637 (5th Cir.1989). . Both Justice Powell’s plurality opinion and Justice O’Connor’s concurring opinion found that there was strong evidence that the agreement at issue in Rumery had been concluded voluntarily. Indeed, Justice Powell said that it was “clear” that Rumery entered into the agreement voluntarily, 480 U.S at 398, 107 S.Ct. at 1194, while Justice O’Connor described the evidence that Rumery entered into the agreement voluntarily as \"convincing.\" Id. at 403, 107 S.Ct. at 1197. . An apt example is in a § 10(b) securities fraud claim, in which the Court has found that a preponderance standard is appropriate, because in such a case there is no reason to accord special deference to the interests of either plaintiffs or defendants. Id. at 390, 107 S.Ct. at 1190-91. . The first amendment's petition clause protects a citizen's right of access to governmental mechanisms for the redress of grievances, including the right of access to the courts for that purpose. See Bieregu v. Reno, 59 F.3d 1445, 1453 (3d Cir.1995); San Filippo v. Bongiovanni, 30 F.3d 424, 439 n. 18, 443 (3d Cir.1994), cert. denied, -U.S. -, 115 S.Ct. 735, 130 L.Ed.2d 638 (1995). .It is appropriate to include the public’s interest in detecting and deterring official abuse among the “particularly important individual interests or rights”" }, { "docid": "14430615", "title": "", "text": "Court concluded that the validity of such agreements should be determined by courts using a “ease-by-case approach [which] appropriately balances the important interests on both sides of the question of the enforceability of these agreements.” Id. at 399, 107 S.Ct. at 1195 (O’Connor, J., concurring in part and in the judgment); see id. at 392, 107 S.Ct. at 1191 (release-dismissal is unenforceable if “the interest in its enforcement is outweighed in the circumstances by a public policy harmed by enforcement of the agreement”). While the majority did not expressly enumerate those “important interests” which must be balanced when evaluating a particular release-dismissal agreement, it did conclude that the Rumery agreement was valid because it was voluntary, there was, no evidence of prosecutorial misconduct, and enforcement of the agreement would not adversely affect relevant public interests. Id. at 398, 107 S.Ct. at 1195. Those circuit courts which have had occasion to apply Rumery have taken these three concerns to be the “important interests” that should be considered by a court when determining whether a specific agreement should be enforced. Justice O’Connor said that she was writing separately to emphasize that it is the burden of those .relying upon such covenants to establish that the agreement is neither involuntary nor the product of an abuse of the criminal process. . ... The defendants in a § 1983 suit may establish that a particular release executed in exchange for the dismissal of. criminal charges was voluntarily made, not the product of prosecutorial overreaching, and in the public interest. Id. at 399, 401, 107 S.Ct. at 1195, 1196 (O’Connor, J., concurring in part and in the judgment). The four Rumery dissenters joined Justice O’Connor’s burden of proof analysis. Id. at 417, 107 S.Ct. at 1204 (Stevens, J., dissenting). Accordingly, a majority of the Court supported the proposition that the burden of proving the enforceability of such a release is upon the party asserting it as a defense to a § 1983 claim. In sum then, the Rumery opinion instructs us that before a court- properly may conclude that a particular release-dismissal agreement is enforceable," }, { "docid": "20359749", "title": "", "text": "ORDER MAXWELL, District Judge. Plaintiff seeks to pursue his remedies in this Court pursuant to 42 U.S.C. § 1983. He alleges that defendants Ferguson and Keller, police officers employed by the defendant City of Belington, used excessive force during an unlawful arrest. Plaintiff has also alleged a cause of action against defendant City of Belington, based upon the doctrine of respondeat superior. On December 15, 1994, defendants filed a Motion to Dismiss, and a memorandum of law in support of the motion. In support of the motion, defendants also submitted two exhibits, namely, the affidavit of Gary W. Morris, II, and a Reléase. Essentially, defendants urge that a release-dismissal agreement was voluntarily entered into by the plaintiff in November 1992 which precludes initiation of the instant action. Alternatively, defendant City of Belington suggests that a § 1983 action cannot be maintained upon the doctrine of respondeat superior. By Order entered December 19, 1994, the Court advised the parties that it would consider the exhibits and that it would dispose of the motion in accordance with Rule 56, Federal Rules of Civil Procedure. Plaintiff was provided with notice of an opportunity to respond to the motion for summary judgment. On January 20,1995, plaintiff filed a memorandum of law in opposition to the motion. Plaintiff concedes that he executed the release-dismissal agreement but urges that his decision to execute the release-dismissal agreement was not informed or voluntary. Release-dismissal agreements are not per se invalid as contrary to public policy. Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987). Rather, the validity of such agreements must be analyzed on a “case-by-ease approach [which] appropriately balances the important interests on both sides of the question of the enforceability of these agreements.” Id. at 399, 107 S.Ct. at 1195 (O’Connor, J., concurring in part and in the judgment). The federal courts have had many occasions since the Rumery decision to review release-dismissal agreements and have uniformly concluded that three important interests should be considered by a court when determining whether a specific agreement should be enforced. Rumery permits enforcement" }, { "docid": "20359750", "title": "", "text": "Rule 56, Federal Rules of Civil Procedure. Plaintiff was provided with notice of an opportunity to respond to the motion for summary judgment. On January 20,1995, plaintiff filed a memorandum of law in opposition to the motion. Plaintiff concedes that he executed the release-dismissal agreement but urges that his decision to execute the release-dismissal agreement was not informed or voluntary. Release-dismissal agreements are not per se invalid as contrary to public policy. Town of Newton v. Rumery, 480 U.S. 386, 107 S.Ct. 1187, 94 L.Ed.2d 405 (1987). Rather, the validity of such agreements must be analyzed on a “case-by-ease approach [which] appropriately balances the important interests on both sides of the question of the enforceability of these agreements.” Id. at 399, 107 S.Ct. at 1195 (O’Connor, J., concurring in part and in the judgment). The federal courts have had many occasions since the Rumery decision to review release-dismissal agreements and have uniformly concluded that three important interests should be considered by a court when determining whether a specific agreement should be enforced. Rumery permits enforcement of a release-dismissal agreement if (1) it was voluntary; (2) there is no evidence of prosecutorial misconduct; and (3) enforcement would not adversely affect the public interest. Coughlen v. Coots, 5 F.3d 970, 973 (6th Cir.1993); Cain v. Darby Borough, 7 F.3d 377, 380 (3rd Cir.1993); Berry v. Peterson, 887 F.2d 635, 636 (5th Cir.1989); Lynch v. City of Alhambra, 880 F.2d 1122, 1126 (9th Cir.1989); Haynesworth v. Miller, 820 F.2d 1245, 1256 (D.C.Cir.1987); Hall v. Ochs, 817 F.2d 920, 923 (1st Cir.1987) (release-dismissal agreement must be voluntary); see also, pre-Rumery ease of Bushnell v. Rossetti, 750 F.2d 298, 302 (4th Cir.1984) (release-dismissal agreements can only be enforced if the decision to release was voluntary, deliberate, and informed). From the text of Rule 56(c) of the Federal Rules of Civil Procedure, it is clear that a summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving" }, { "docid": "9604968", "title": "", "text": "the release-dismissal agreement advanced any other public interest. Rather, the defendants have chosen simply to rely on the District Attorney’s Office blanket policy of requiring release-dismissal agreements for ARD candidates as proof that this release-dismissal agreement advanced the public interest. This, as we have said, is insufficient. III. Simply stated, this record will not support a determination that the public interest requirement of Rumery has been satisfied. As we have explained, because the District Attorney made no case-specific showing that the public interest was served by obtaining the release, the district court erred by determining that as a matter of law the public interest requirement was satisfied. We will reverse the grant of summary judgment for the defendants and remand the cause for the district court to decide the merits of Cain’s claims. . Diane Cain died in 1991 from causes unrelated to this case. . Justice O’Connor, who provided the fifth vote for the Court’s holding that release-dismissal agreements are not per se impermissible, did not join this part of Justice Powell’s opinion. . Other courts of appeals have similarly required that defendants demonstrate a public interest justification for release-dismissal agreement in addition to voluntariness. See, e.g., Woods v. Rhodes, 994 F.2d 494 (8th Cir.1993); Berry v. Peterson, 887 F.2d 635, 641 (5th Cir.1989); Lynch v. Alhambra, 880 F.2d 1122, 1128 (9th Cir.1989). We have found no court of appeals decision that has held to the contrary. . Assistant District Attorney Punshon testified: \"That's — had I not been given the release, I would not have made the motion. It’s not a condition of the ARD Program that while she entered it or as she entered it that she sign the release. It’s a condition of my making the motion.” App. 308-09. GREENBERG, Circuit Judge, concurring in part and dissenting in part: I agree with much of the majority opinion and in particular with its central point that the blanket practice of requiring a release as a condition for admission into the ARD program is invalid. But I dissent from its disposition, as I believe that the ease should" } ]

[ { "docid": "7366690", "title": "", "text": "for suspension of deportation under the Immigration Act of 1917, as amended, 54 Stat. 672, 8 U.S.C.A. § 155(c), which authorizes the Attorney General, in certain circumstances, to suspend deportation of an alien who is not “ineligible to naturalization.” The Board of Immigration Appeals denied his application, according to appellant’s uncontroverted allegation in his complaint, “solely and exclusively” because appellant’s exemption from military service had been secured at the price of a perpetual bar to naturalization. STSA § 3(a), 50 U.S.C.A.Appendix, § 303(a). After exhausting his administrative remedies, appellant sued in the District Court for a declaratory judgment and an injunction against the Attorney General and the Commissioner of Immigration, contending that he was not “residing in the United States” at the time he claimed exemption from service and therefore STSA § 3(a) is inapplicable to him. Appellant was not in custody at the time he brought suit, nor is he today. The District Court sustained defendant’s motion to dismiss the complaint. We think the District Court erred. The initial problem posed is not the availability of review but rather the method by which it may be sought. Is habeas corpus the exclusive remedy to test the legality of a de portation order, as appellee insists, or did the Declaratory Judgment and Administrative Procedure Acts add to the available •methods of review? Before the • enactment of these measures, habeas corpus was the sole means of questioning the jurisdiction, fairness and conformity to statute of deportation proceedings. But with the passage of the Declaratory Judgment Act, 48 Stat. 955, 28 U.S.C.A. §§ 2201, 2202, the courts were given the power to forestall injury by deciding justiciable cases or controversies at the earliest possible moment. Nor did the use of the declaratory judgment in immigration proceedings await the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. In 1938 the Supreme Court sustained this court’s decision in Perkins v. Elg, 1938, 69 App.D.C. 175, 180-1, 99 F.2d 408, 413-4, modified and affirmed, 1939, 307 U.S. 325, 349-50, 59 S.Ct. 884, 896, 83 L.Ed. 1320, 1333-4, and held the declaratory judgment procedure" } ]

[ { "docid": "22694196", "title": "", "text": "fail to convince the Board or the Attorney General, in the exercise of their discretion, that he is entitled to suspension, but at least he will have been afforded that due process required by the regulations in such proceedings. Reversed. 39 Stat. 889, as amended, 8 U. S. C. (1946 ed., Supp. V) § 155 (c). Section 405 is the savings clause of the Immigration and Nationality Act of 1952 and its subsection (a) provides that: “Nothing contained in this Act, unless otherwise specifically provided therein, shall be construed to affect the validity of any . . . proceeding which shall be valid at the time this Act shall take effect; or to affect any . . . proceedings . . . brought ... at the time this Act shall take effect; but as to all such . . . proceedings, . . . the statutes or parts of statutes repealed by this Act are, unless otherwise specifically provided therein, hereby continued in force and effect. . . . An application for suspension of deportation under section 19 of the Immigration Act of 1917, as amended, . . . which is pending on the date of enactment of this Act [June 27, 1952], shall be regarded as a proceeding within the meaning of this subsection.” 66 Stat. 280, 8 U. S. C. (1952 ed.), p. 734. Since Accardi’s application for suspension of deportation was made in 1948, § 19 (c) of the 1917 Act continues to govern this proceeding rather than its more stringent equivalent in the 1952 Act, § 244, 66 Stat. 214, 8 U. S. C. (1952 ed.) § 1254. “Any alien who at any time after entering the United States is found to have been at the time of entry not entitled under this Act to enter the United States . . . shall be taken into custody and deported in the same manner as provided for in sections 19 and 20 of the Immigration Act of 1917 . . . .” 43 Stat. 162, 8 U. S. C. (1946 ed.) § 214. This ground for deportation" }, { "docid": "22836031", "title": "", "text": "Justice report were available until after the hearing, both contain information relating to COEDF in particular. We believe that consideration of this evidence is crucial to the development of an adequate record in this case. Accordingly, we remand to the Board pursuant to 28 U.S.C. § 2347(c). See Makonnen, 44 F.3d at 1385. C. Motion to Adduce Evidence Regarding Suspension of Deportation In this motion, Feleke seeks to adduce evidence on the issue of his eligibility for suspension of deportation. He argues that while his appeal has been pending, he has become eligible, by virtue of continuous residence in the United States for more than seven years, for suspension of deportation. The law governing suspension of deportation, which is now called cancellation of removal, was amended by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which took effect on April 1, 1997. Under the earlier statute, an alien was generally eligible for suspension of deportation if: (1) he had been physically present in the United States for more than seven years; (2) he was of good moral character; and (3) he could show extreme hardship if he were to return to his country. 8 U.S.C. § 1254(a)(1) (Supp.1996). IIRIRA toughens the requirements for cancellation of removal in that it lengthens the required period of continuous residence in the United States from seven to ten years. 8 U.S.C. § 1229b(b)(l)(A) (Supp. 1997). It also provides that calculation of that time period excludes any time spent in the United States after the initiation of deportation proceedings. 8 U.S.C. § 1229b(d)(l) (Supp.1997). This latter provision applies to motions for suspension filed before, on, or after the effective date of the statute. See IIRIRA § 309(e)(5), Div. C of Pub.L. No. 104-208,110 Stat. 3009. We must first address the issue of jurisdiction since this motion has not been presented to the INS. We have jurisdiction to review all final orders of deportation. Nyonzele, 83 F.3d at 979. Our review includes all determinations made during and incident to the administrative proceeding such as denials of asylum, hardship waivers or voluntary departures. Id." }, { "docid": "8490083", "title": "", "text": "and so was not available to plaintiff at the time of the hearings in November and December 1947, enlarged the class of those eligible for suspension of deportation to include aliens who had resided continuously in the United States for seven years or more. The Board on June 24th, 1949 denied the request for relief under Section 19(c) (2) and also dismissed the appeal from the Commissioner’s order. On September 28th, 1950 a warrant of deportation was served upon plaintiff and he was ordered to surrender himself at Ellis Island on November 1st, 1950 for immediate departure to Greece. The present suit was then instituted against the District Director of Immigration and Naturalization at the Port of New York. The plaintiff challenges the order of deportation as invalid on the grounds that (1) the hearings of November 14th and December 22nd, 1947 did not comply with the provisions of the Administrative Procedure Act then in force and effect in that judicial and prosecutive functions were vested in the same person; (2) that the denial of his application for suspension of deportation under Section 155(e)(2) was an illegal abuse of discretionary power; further, that he was denied a hearing thereon in violation of due process; (3) the deportation of plaintiff to Greece might well subject him to serious physical persecution and is, therefore, a violation of the Federal Constitution and the provisions of 8 U.S.C.A. § 156, as last amended by Section 23 of the Internal Security Act of 1950. The government urges various objections to the plaintiff’s motion, amongst others, that a writ of habeas corpus is the sole judicial remedy available to the plaintiff. That one resisting an order of deportation is no longer confined to habeas corpus but may maintain a declaratory judgment suit after having exhausted administrative remedies is no longer open to question. However, the maintenance of such an action is not absolute but is dependent upon “the existence of a justiciable case or controversy”. McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224. Plaintiff is seeking an injunction pendente lite, which, if granted, would stay" }, { "docid": "13548334", "title": "", "text": "Fong Choi Yu v. Immigration and Naturalization Service, 9 Cir., 1971, 439 F.2d 719; Yeung Ying Cheung v. Immigration and Naturalization Serv., 3 Cir., 1970, 422 F.2d 43, 46-47; Kasravi v. Immigration and Naturalization Service, 9 Cir., 1968, 400 F.2d 675, 676. Petitioner, who has the burden of establishing the statutory prerequisites, has failed to carry this burden. Considering all these factors, the immigration judge found that Pelaez failed to prove extreme hardship. We agree with this finding for the reasons stated by the judge. Finally, Pelaez asserts that 8 U.S.C. § 1254(a)(1) is unconstitutional on its face and as applied because it discriminates against aliens without family ties in the United States. She contends that an alien with family here can base suspension of deportation on his family’s hardship but an alien without family is limited to personal hardship. We find no merit in this contention. Congress has plenary power in the immigration area, particularly in determining which aliens will be admitted and the period they shall remain. Harisiades v. Shaughnessy, 342 U.S. 580, 588-591, 72 S.Ct. 512, 519-520, 96 L.Ed. 586 (1952); Torao Takahashi v. Fish and Game Commission, 334 U.S. 410, 419, 68 S.Ct. 1138, 1142, 92 L.Ed. 1478 (1948); United States v. Shaughnessy, 2 Cir., 1950, 180 F.2d 489, 490. Additionally, the statutory history of Section 1254(a) discloses that the suspension provision was originally enacted in 1940 solely to deal with hardships to the alien’s family in the United States which would result from deportation. Eight years later, Congress extended the suspension process to aliens who could show extreme hardship when they had no family ties in this country. Act of July 1, 1948, 62 Stat. 1206; see 2 Gordon and Rosenfield, Immigration Law and Procedure § 7.9a (1972). Congress’ extension of the Act to include aliens, such as Pelaez, negates any claims of discrimination. The decision of the Board of Immigration Appeals is Affirmed. . In his written decision, the immigration judge held, in pertinent part, as follows: The sole question remaining is whether deportation would result in extreme hardship to her (8 CFR 242.17(d))." }, { "docid": "2142421", "title": "", "text": "1953-, the District Court denied a preliminary injunction. This court entered a temporary restraining order pending this appeal from that denial. I. We adhere to our ruling of January 5 that the legality of appellant’s threatened and imminent detention may be tested in this suit by the principles that would be applicable in habeas corpus'. Heikkila v. Barber, 345 U.S. 229, 73 S.Ct. 603, decided March 16, 1953, is not to the contrary. Distinguishing McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173, and overruling decisions of this and two other Courts of Appeals, the Supreme Court held that Heikkila could attack a deportation order only in habeas corpus because § 19 of the 1917 Immigration Act, 39 Stat. 890, under which the order was issued, “clearly had the effect of precluding judicial intervention in deportation cases except insofar as it was required by the Constitution.” 345 U.S. at pages 234-235, 73 S.Ct. at page 606. The Court pointed out that it did “not consider the 1952 Act, 66 Stat. 163, which took effect after Heikkila’s complaint was filed.” 73 S.Ct. 604, note 4._ The 1952 Act, which is the Immigration and Nationality Act, 66 Stat. 163, 8 U.S.C.A. § 1101 et seq., took effect December 24, 1952, before Rubinstein’s complaint was filed and even before the order for his deportation was issued. All agree that the 1952 Act and not the 1917 Act governs this suit. The 1952 Act and its historical background. Unlike the 1917 Act, § 242(b) (4) of the 1952 Act provides that “no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.” Unlike the 1917 Act, §§ 242(c) and 242(e) of the 1952 Act expressly recognize that there may be “judicial review” of a final order of deportation. Section 242(c) provides that “the Attorney General shall have a period of six months from the date of such order, or, if judicial revietv is had, then from the date of the final order of the court, within which to effect the alien’s departure from the United" }, { "docid": "375652", "title": "", "text": "in Congress. There the uniform practice was a provable fact. It is not such when, as here, the alleged uniform practice relates to the appraisement of the moral reformation of convicted deportees. Order affirmed. . This statute was repealed by the Immigration and Nationality Act of June 27, 1952, effective 180 days thereafter, and the provisions as to discretionary suspension of deportation were replaced by section 241 of the 1952 Act, 8 U.S.C.A. § 1254. However, the “savings clauses” of the later Act kept the earlier statute alive for pending proceedings, and provided that “An application Cor suspension of deportation under section 19 of the Immigration Act of 1917, as amended * * * which is pending on the date of enactment of this Act shall be regarded as a proceeding within^the meaning of this subsection.” 8 U.S.C.A. § 1101 note. P.L. 414, § 405(a), 66 Stat. 280. The appellant’s application was pending until the Board of Immigration Appeals rendered its decision on April 3, 1953. . Judge Noonan’s memorandum decision reads: “A review of the record as a whole, fails to demonstrate that there was present a clear abuse of discretion or clear failure to exercise discretion, Absent either element this court cannot review the exercise of discretion by the Board of Immigration Appeals. (United States ex rel. Adel v. Shaughnossy [2 Cir.], 183 F.2d 371.)” . The appellant's brief on the present apPea^ admits that dismissal of the first wrlt was correct:- . Salinger v. LoiseI 265 U.S. 224, 230, 44 S.Ct. 519, 68 L.Ed. 989; United States ex rel. McCann v. Thompson, 2 Cir., 144 F.2d 604, 606, 156 A.L.R. 240, certiorari denied 323 U.S. 790, 65 S.Ct. 313, 89 L.Ed. 630. . Wong Doo v. United States, 265 U.S. 239, 241, 44 S.Ct. 524, 68 L.Ed. 999; United States ex rel. McCann v. Thompson, supra; United States ex rel. Karpathion v. Jordan, 7 Cir., 153 F.2d 810, certiorari denied 328 U.S. 868, 66 S.Ct. 1372, 90 L.Ed. 1639. . “9. That on April 6, 1945, favorable discretionary relief was' exercised herein in the form of .voluntary" }, { "docid": "22694197", "title": "", "text": "under section 19 of the Immigration Act of 1917, as amended, . . . which is pending on the date of enactment of this Act [June 27, 1952], shall be regarded as a proceeding within the meaning of this subsection.” 66 Stat. 280, 8 U. S. C. (1952 ed.), p. 734. Since Accardi’s application for suspension of deportation was made in 1948, § 19 (c) of the 1917 Act continues to govern this proceeding rather than its more stringent equivalent in the 1952 Act, § 244, 66 Stat. 214, 8 U. S. C. (1952 ed.) § 1254. “Any alien who at any time after entering the United States is found to have been at the time of entry not entitled under this Act to enter the United States . . . shall be taken into custody and deported in the same manner as provided for in sections 19 and 20 of the Immigration Act of 1917 . . . .” 43 Stat. 162, 8 U. S. C. (1946 ed.) § 214. This ground for deportation is perpetuated by § 241 (a) (1) and (2) of the Immigration and Nationality Act of 1952. 66 Stat. 204, 8 U. S. C. (1952 ed.) § 1251 (a)(1) and (2). Meanwhile, Accardi moved the Board of Immigration Appeals to reconsider his case. The motion was denied on May 8. Res judicata does not apply to proceedings for habeas corpus. Salinger v. Loisel, 265 U. S. 224 (1924); Wong Doo v. United States, 265 U. S. 239 (1924). The first ground was that \"in all similar cases the Board of Immigration Appeals has exercised favorable discretion and its refusal to do so herein constitutes an abuse of discretion.” This is a wholly frivolous contention, adequately disposed of by the Court of Appeals. 206 F. 2d 897, 901. Another allegation charged \"that the Department of Justice maintains a confidential file with respect to [Joseph Accardi].” But at no place does the petition elaborate on this charge, nor does the petition allege that discretionary relief was denied because of information contained in a confidential file. Although the" }, { "docid": "22694187", "title": "", "text": "States by train from Canada in 1932 without immigration inspection and without an immigration visa. This entry clearly falls under § 14 of the Immigration Act of 1924 and is the uncontested ground for deportation. The deportation proceedings against him began in 1947. In 1948 he applied for suspension of deportation pursuant to § 19 (c) of the Immigration Act of 1917. This section as amended in 1948 provides, in pertinent part, that: “In the case of any alien (other than one to whom subsection (d) of this section is applicable) who is deportable under any law of the United States and who has proved good moral character for the preceding five years, the Attorney General may . . . suspend deportation of such alien if he is not ineli gible for naturalization or if ineligible, such ineligibility is solely by reason of his race, if he finds (a) that such deportation would result in serious economic detriment to a citizen or legally resident alien who is the spouse, parent, or minor child of such deportable alien; or (b) that such alien has resided continuously in the United States for seven years or more and is residing in the United States upon July 1, 1948.” 8 U. S. C. (1946 ed., Supp. V) § 155 (c). Hearings on the deportation charge and the application for suspension of deportation were held before officers of the Immigration and Naturalization Service at various times from 1948 to 1952. A hearing officer ultimately found petitioner deportable and recommended a denial of discretionary relief. On July 7, 1952, the Acting Commissioner of Immigration adopted the officer’s findings and recommendation. Almost nine months later, on April 3, 1953, the Board of Immigration Appeals affirmed the decision of the hearing officer. A warrant of deportation was issued the same day and arrangements were made for actual deportation to take place on April 24, 1953. The scene of action then shifted to the United States District Court for the Southern District of New York. One day before his scheduled deportation petitioner sued out a writ of habeas corpus." }, { "docid": "2410552", "title": "", "text": "McCREE, District Judge. Petitioner is a native and national of Austria and the wife of a United States citizen. She was lawfully admitted into the United States for permanent residence on November 25, 1955, and filed her petition for naturalization on September 20, 1960, under the three-year residence provisions of 8 U.S.C. § 1430. The facts in this case are not in dispute. Petitioner was born in Roumania in 1911. She first entered this country illegally in 1937. On July 6,1947, after a brief visit to Canada, petitioner re-entered the United States without the requisite entry documents. From July 16 to December 19, 1947, she was treated at the Ypsilanti State Hospital for a mental disorder diagnosed as “schizophrenia, catatonic type”. She married George Hollinger, a United States citizen, on October 22, 1948, and was declared sane by the Wayne County Probate Court on November 18, 1948. Subsequently, a deportation proceeding was instituted on the basis of petitioner’s 1947 entry without documents and on grounds of insanity at the time of entry and previous attack of insanity. In connection with this proceeding, the United States Public Health Service certified that petitioner was afflicted with schizophrenia, catatonic type, at the time of her arrival on July 6,1947. Petitioner applied for suspension of deportation or, in the alternative, for voluntary departure. By order of the Board of Immigration Appeals she was found to be deportable, and suspension of deportation was denied. However, the Board granted voluntary departure and authorized readmission under the 7th Proviso to Section 3, of the Immigration Act of 1917 “if otherwise admissible than as one who has had a previous attack of insanity, conditioned on the posting of a bond in the amount of $1000, pursuant to Section 21 of the Immigration Act.” On January 25, 1952, petitioner’s appeal from the portion of the order denying suspension of deportation was dismissed, and on June 24, 1952, her application for rehearing was denied. On October 7, 1954, the Board of Immigration Appeals entered an order granting petitioner’s application for pre-examination in connection with the prior order authorizing voluntary departure" }, { "docid": "22694188", "title": "", "text": "deportable alien; or (b) that such alien has resided continuously in the United States for seven years or more and is residing in the United States upon July 1, 1948.” 8 U. S. C. (1946 ed., Supp. V) § 155 (c). Hearings on the deportation charge and the application for suspension of deportation were held before officers of the Immigration and Naturalization Service at various times from 1948 to 1952. A hearing officer ultimately found petitioner deportable and recommended a denial of discretionary relief. On July 7, 1952, the Acting Commissioner of Immigration adopted the officer’s findings and recommendation. Almost nine months later, on April 3, 1953, the Board of Immigration Appeals affirmed the decision of the hearing officer. A warrant of deportation was issued the same day and arrangements were made for actual deportation to take place on April 24, 1953. The scene of action then shifted to the United States District Court for the Southern District of New York. One day before his scheduled deportation petitioner sued out a writ of habeas corpus. District Judge Noonan dismissed the writ on April 30 and his order, formally entered on May 5, was never appealed. Arrangements were then made for petitioner to depart on May 19. However, on May 15, his wife commenced this action by filing a petition for a second writ of habeas corpus. New grounds were alleged, on information and belief, for attacking the administrative refusal to suspend deportation. The principal ground is that on October 2, 1952— after the Acting Commissioner’s decision in the case but before the decision of the Board of Immigration Appeals— the Attorney General announced at a press conference that he planned to deport certain “unsavory characters”; on or about that date the Attorney General prepared a confidential list of one hundred individuals, including petitioner, whose deportation he wished; the list was circulated by the Department of Justice among all employees in the Immigration Service and on the Board of Immigration Appeals; and that issuance of the list and related publicity amounted to public prejudgment by the Attorney General so that fair" }, { "docid": "17696492", "title": "", "text": "GODBOLD, Chief Judge: The issue in this appeal is whether appellant Marti-Xiques is eligible for relief from deportation under Sec. 244(a)(1) or 212(c) of the Immigration and Nationality Act (“Act”). 8 U.S.C. Secs. 1254(a)(1), 1182(c) (1976 & Supp. Y 1981). We hold that while appellant is ineligible for relief under Sec. 244(a)(1), he is eligible for discretionary relief under Sec. 212(c). We remand to the Board of Immigration Appeals for it to determine whether it will reopen appellant’s case. Appellant, a thirty-year-old native and citizen of Columbia, became a lawful permanent resident of this country December 23, 1975. He has resided here since then and now lives in Puerto Rico with his wife and child. His difficulties with immigration authorities began in August 1979, when he sailed a vessel to the Bahamas and took 12 Colombia citizens aboard with the intent to smuggle them into this country. He was arrested in Florida waters with the aliens aboard. Criminal charges were lodged against Marti-Xiques, and he was convicted in federal district court of knowingly aiding another alien to enter this country illegally in violation of 8 U.S.C. Sec. 1324(a)(1). Deportation proceedings were also initiated against him. The INS issued a show cause order and subsequently filed an additional charge, charging appellant with deportability for entering this country without inspection and for knowingly aiding another alien to enter. The immigration court found Marti-Xiques deportable as charged on both grounds. It denied his motion for discretionary relief and ordered that he depart this country voluntarily or face deportation. The Board of Immigration Appeals affirmed. On appeal appellant does not challenge the findings of deportability. Rather, he argues that he is eligible for discretionary relief from deportation under Secs. 244(a)(1) and 212(c) of the Act, 8 U.S.C. Secs. 1254(a)(1), 1182(c) (1976 & Supp. V 1981). I. 244(a)(1) Section 244(a)(1) gives the attorney general discretion to suspend deportation of an alien who inter alia has been physically present in this country for a continuous period of more than seven years preceding the date of his application for relief. Appellant concedes that he was not eligible" }, { "docid": "13974396", "title": "", "text": "truthfully described his conduct, ‘a married man is not free to carry on such a relationship and still be considered one of good character.’ ” 265 F.2d at 507. In Pagano v. Brownell, 227 F.2d 36 (D.C.Cir.1955), appellant had been denied suspension of deportation under § 19 on the ground that a prior criminal conviction involved moral turpitude and thus rendered him ineligible for discretionary relief. Finding in subsequent actions of the Attorney General’s delegate some indication that appellant’s prior conviction had not involved moral turpitude, the Court of Appeals for the-District of Columbia remanded the cause, directing that the district court “should determine whether * * * the Attorney General had discretion to suspend appellant’s deportation, and if so, should direct him to exercise it.” 227 F.2d at 37. And see United States ex rel. Zacharias v. Shaughnessy, 221 F.2d 578 (2 Cir. 1955). The Supreme Court has itself undertaken to review statutory constructions of the Attorney General in deportation cases where discretionary relief was denied. See McGrath v. Kristensen, 340 U.S. 162, 71 S.Ct. 224, 95 L.Ed. 173-(1950) (holding that because of erroneous construction of a related statute, the-Attorney General unjustly refused to suspend appellant’s' deportation under § 19(c) of the Immigration Act of 1917); United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957) (“[i]t is clear from the record that the Board applied the correct legal standards in deciding whether petitioners met the statutory prerequisites for suspension of deportation.”) And see Delgadillo v. Carmichael, 332 U.S. 388, 68 S.Ct. 10, 92 L.Ed. 17 (1947) ; Fong Haw Tan v. Phelan, 333 U.S. 6, 68 S.Ct. 374, 92 L.Ed. 433 (1948). Reason as well as authority supports the position that the standards employed by the Attorney General in exercising his discretion under § 243(h) are subject to judicial review. The Attorney General’s assessment of the conditions obtaining in any particular country, is, of course, a political matter, a “question of fact.” It is equally clear, we believe, that the standards by which those conditions are to be judged —" }, { "docid": "13291860", "title": "", "text": "States.” Form SSS 130, quoting Selective Service Act of 1948, § 4 (a), 62 Stat. 606, 50 U. S. C. App. § 454 (a) (1946 ed., Supp. III). He further admitted having signed a statement saying, “I understand that I will forever lose my rights to become a citizen of the United States . . . .” Upon the basis of these statements and § 4 (a) of the Selective Service Act of 1948, the United States argues that the case is controlled by our decision in Ceballos v. Shaughnessy, 352 U. S. 599 (1957), in which we enforced similar citizenship debarment provisions in a deportation case arising under the Immigration Act of 1917, § 19 (c), 39 Stat. 889, as amended, 54 Stat. 672, 62 Stat. 1206, 8 U. S. C. § 155 (c) (1946 ed., Supp. V). Ceballos, however, does not govern this case. In Ceballos the Court specifically held that § 315 of the Immigration and Nationality Act of 1952, 66 Stat. 242, 8 U. S. C. § 1426, was inapplicable because of the effective date of the 1952 Act and because § 315 was expressly inapplicable to deportation proceedings under the 1917 Act. 352 U. S., at 606 n. 17. Astrup, unlike Ceballos, is not involved in a deportation proceeding under the Immigration Act of 1917 and consequently the saving clause of the Immigration and Nationality Act of 1952, § 405, 66 Stat. 280, is inappli cable. See note following 8 U. S. C. § 1101. Moreover, Astrup petitioned for naturalization under § 316 of the 1952 Act. Therefore, § 315 of the 1952 Act, not § 4 (a) of the Selective Service Act of 1948, determines the effect to be given to Astrup’s 1950 application for exemption from military service. Section 315 provides: “Notwithstanding the provisions of section 405 (b) of this Act, any alien who applies or has applied for exemption or discharge from training or service in the Armed Forces or in the National Security Training Corps of the United States on the ground that he is an alien, and is or was" }, { "docid": "17640922", "title": "", "text": "DANAHER, Circuit Judge. Appellant, a citizen of Greece, entered the United States under a seaman’s passport in February 1945 and resided continuously in this country thereafter until he was arrested on September 23, 1952 on a warrant charging that he had overstayed his visit under the terms of his visa. On December 2, 1952, appellant, on an application form not of record here, asked the Attorney General to suspend deportation. Such relief is authorized under § 19(c) of the Immigration Act of 1917, as amended 8 U.S.C. § 155 (c) (1946 Supp. V), 39 Stat. 889. After a hearing on January 9, 1953 an Immigration inquiry officer concluded that appellant was an immigrant not in possession of a valid immigration visa, was not exempted from the presentation of one, and that: “There was no valid application in this case for suspension of deportation under the Immigration Act of 1917, as amended.” After an order that appellant voluntarily depart or, for failure, that he be deported on April 8, 1955, appellant on March 31, 1955 filed an action seeking declaratory judgment and for review under the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., and also filed, simultaneously, a motion for a temporary restraining order. The trial judge considered the complaint, the application for the temporary restraining order and its supporting affidavit, no answer having been filed, and, after hearing, found that appellant had been denied a suspension of deportation but had been granted the privilege of voluntary departure, and that appellant had been held deportable “for the reason that he was not in possession of a valid immigration visa.” The trial judge made conclusions of law that the Attorney General had exercised his discretion in that “the alternative discretionary relief of voluntary departure was granted” on the authority of Brownell v. Rasmussen, 95 U.S.App.D.C. -, 221 F.2d 541, that “only in a habeas corpus proceeding does this Court possess jurisdiction to review an order of deportation of an alien who does not claim American citizenship”; that jurisdiction under the Administrative Procedure Act or the Declaratory Judgment Act, 28 U.S.C." }, { "docid": "8490082", "title": "", "text": "that it was his intention when he deserted his vessel to remain here permanently. The presiding inspector, pursuant to Federal Regulations, thereupon lodged an additional charge that at the time of entry he was an immigrant not in possession of a valid visa. 8 C.F.R. 150.6(1). On December 29th, 1947 the inspector found that the plaintiff was subject to deportation on the charge made at the hearing but not on the original charge, and recommended deportation. He also reported adversely on plaintiff’s application for voluntary departure and pre-examination. The inspector’s recommendations were upheld by the Commissioner and an order entered thereon on January 5th, 1949 and a warrant issued directing plaintiff’s deportation to Greece. An appeal was taken therefrom to the Board of Immigration Appeals. The appeal was not heard until May 15th, 1949, when plaintiff’s counsel upon the oral argument applied for a suspension of the order of deportation under Section 19(c) (2) of the Immigration Act of 1917, as amended. 8 U.S.C.A. § 155(c) (2). The amendment which became effective July 1st, 1948, and so was not available to plaintiff at the time of the hearings in November and December 1947, enlarged the class of those eligible for suspension of deportation to include aliens who had resided continuously in the United States for seven years or more. The Board on June 24th, 1949 denied the request for relief under Section 19(c) (2) and also dismissed the appeal from the Commissioner’s order. On September 28th, 1950 a warrant of deportation was served upon plaintiff and he was ordered to surrender himself at Ellis Island on November 1st, 1950 for immediate departure to Greece. The present suit was then instituted against the District Director of Immigration and Naturalization at the Port of New York. The plaintiff challenges the order of deportation as invalid on the grounds that (1) the hearings of November 14th and December 22nd, 1947 did not comply with the provisions of the Administrative Procedure Act then in force and effect in that judicial and prosecutive functions were vested in the same person; (2) that the denial of" }, { "docid": "13548335", "title": "", "text": "588-591, 72 S.Ct. 512, 519-520, 96 L.Ed. 586 (1952); Torao Takahashi v. Fish and Game Commission, 334 U.S. 410, 419, 68 S.Ct. 1138, 1142, 92 L.Ed. 1478 (1948); United States v. Shaughnessy, 2 Cir., 1950, 180 F.2d 489, 490. Additionally, the statutory history of Section 1254(a) discloses that the suspension provision was originally enacted in 1940 solely to deal with hardships to the alien’s family in the United States which would result from deportation. Eight years later, Congress extended the suspension process to aliens who could show extreme hardship when they had no family ties in this country. Act of July 1, 1948, 62 Stat. 1206; see 2 Gordon and Rosenfield, Immigration Law and Procedure § 7.9a (1972). Congress’ extension of the Act to include aliens, such as Pelaez, negates any claims of discrimination. The decision of the Board of Immigration Appeals is Affirmed. . In his written decision, the immigration judge held, in pertinent part, as follows: The sole question remaining is whether deportation would result in extreme hardship to her (8 CFR 242.17(d)). Respondent has not been married. She has no family ties in the United States. Her sole living relatives, three brothers, live in the Philippines. Respondent asserts extreme hardship would ensue to her if required to leave this country because of difficulty in obtaining employment in the Philippines. She has been trained to be a programmer as a result of her schooling in the United States. She has not obtained employment in this field because permanent residence is a prerequisite. However, in the Philippines, respondent alleges, it will be impossible to obtain such employment because one “needs someone in the government to get a good job.” Further, the salary of a governess in the Philippines is too small to consider such a position. Lastly, she asserts that her brothers lease farmland and are all poor and could not help her financially. Concededly the respondent’s deportation from the United States would result in economic detriment to her. However, under the circumstances present in this case economic detriment in and of itself does not amount to “extreme hardship”." }, { "docid": "21104745", "title": "", "text": "the instant application. He alleged that he resided continuously in the United States since June 17,1939 and he requested § 249 relief. The application was denied by the District Director on January 19, 1959 on the ground that plaintiff’s departure on September 22, 1945 constituted a break in residence. Plaintiff appealed to the Regional Commissioner who, on April 13, 1959, affirmed the District Director’s order. A further appeal was taken and on October 20, 1959, the Assistant Commissioner affirmed, holding that plaintiff’s voluntary departure at a time when a warrant of deportation was outstanding constituted a deportation and “[therefore, the continuity of his residence was broken.” An additional ground was given: from November, 1945 to November, 1958, the plaintiff entered the United States as a non-immigrant crewman and on several occasions stated to the Service that he intended to reship as a crewman; the application form did not show a place of residence in the United States during this period but set forth only a mail drop. Having exhausted his administrative remedies, the plaintiff, on December 9, 1959, filed this suit for declaratory judgment. Because of the disposition of the question posed in the text, the Court need not consider whether residency, within the meaning of § 249, is made out by shipping aboard a vessel of United States registry, when the vessel ships foreign. In its discussion of whether deportation interrupts residency, the Court has assumed that residency can be made out while aboard such a vessel. . Points and Authorities in Support of Plaintiff’s Motion for Summary Judgment, p. 3. Express provision is made for the voluntary departure of aliens at their own expense. § 19(c) of the Act of February 5, 1917, 39 Stat. 889-890, as amended, Act of June 28, 1940, 54 Stat. 671-673, Act of December 8, 1942, 56 Stat. 1044; Act of July 1, 1948, 62 Stat. 1206. The statute applicable today is § 101(g) of the Act of June 27, 1952, 66 Stat. 172, 8 U.S.C.A. § 1101(g). . “Residence” is defined as: “the place of general abode; the place of general abode" }, { "docid": "8490080", "title": "", "text": "WEINFELD, District Judge. This action is brought under the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., to review (1) an order of deportation issued by the Commissioner of Immigration and Naturalization; (2) the denial by the Board of Immigration Appeals of plaintiff’s application for suspension of the said order of deportation; and (3) for judgment declaring the proceedings which resulted in the order of deportation and all action thereunder null and void. The matter is before the Court on plaintiffs application for a temporary injunction pending a trial of the issues, to enjoin the District Director of Immigration and Naturalization at the Port of New York from arresting him or otherwise taking action under the order of deportation or any warrant issued thereunder. The plaintiff is an alien of Greek nationality who entered this country as a seaman on November 4th, 1931, and has resided here continuously ever since. On December 9th, 1939 he was arrested on a warrant charging him with remaining in the United States beyond the time permitted by law and was admitted to bail. A hearing was held, following which an order and warrant of deportation was issued on July 3rd, 1940. On July 17th, 1945 an attorney representing the plaintiff appeared before the Board of Immigration Appeals and applied for the privilege of voluntary departure in lieu of deportation pursuant to section 19(c)(1) of the Act of February 5, 1917, 8 U.S.C.A. § 155(c) (1), and the additional privilege of pre-examination, and also requested that the warrant of deportation be withdrawn. This application was granted, and on July 20th, 1945 an order was entered which directed (1) that the outstanding order and warrant of deportation he withdrawn and (2) that the proceeding he reopened to permit plaintiff to apply for voluntary departure and pre-examination. On October 15th, 1945, plaintiff filed written Form 1-255 for such voluntary departure and pre-examination, as required by 8 C.F.R. 150.6(g). Exhibit 2, hearing, November 14th, 1947. The hearings for such discretionary relief were not held until November 14th and December 22nd, 1947. At the first hearing plaintiff testified" }, { "docid": "8490081", "title": "", "text": "and was admitted to bail. A hearing was held, following which an order and warrant of deportation was issued on July 3rd, 1940. On July 17th, 1945 an attorney representing the plaintiff appeared before the Board of Immigration Appeals and applied for the privilege of voluntary departure in lieu of deportation pursuant to section 19(c)(1) of the Act of February 5, 1917, 8 U.S.C.A. § 155(c) (1), and the additional privilege of pre-examination, and also requested that the warrant of deportation be withdrawn. This application was granted, and on July 20th, 1945 an order was entered which directed (1) that the outstanding order and warrant of deportation he withdrawn and (2) that the proceeding he reopened to permit plaintiff to apply for voluntary departure and pre-examination. On October 15th, 1945, plaintiff filed written Form 1-255 for such voluntary departure and pre-examination, as required by 8 C.F.R. 150.6(g). Exhibit 2, hearing, November 14th, 1947. The hearings for such discretionary relief were not held until November 14th and December 22nd, 1947. At the first hearing plaintiff testified that it was his intention when he deserted his vessel to remain here permanently. The presiding inspector, pursuant to Federal Regulations, thereupon lodged an additional charge that at the time of entry he was an immigrant not in possession of a valid visa. 8 C.F.R. 150.6(1). On December 29th, 1947 the inspector found that the plaintiff was subject to deportation on the charge made at the hearing but not on the original charge, and recommended deportation. He also reported adversely on plaintiff’s application for voluntary departure and pre-examination. The inspector’s recommendations were upheld by the Commissioner and an order entered thereon on January 5th, 1949 and a warrant issued directing plaintiff’s deportation to Greece. An appeal was taken therefrom to the Board of Immigration Appeals. The appeal was not heard until May 15th, 1949, when plaintiff’s counsel upon the oral argument applied for a suspension of the order of deportation under Section 19(c) (2) of the Immigration Act of 1917, as amended. 8 U.S.C.A. § 155(c) (2). The amendment which became effective July 1st, 1948," }, { "docid": "375651", "title": "", "text": "crime is completely without merit. Suspension of deportation is a discretionary matter. In the exercise of its discretion it is permissible for the Board to take into account rhe alien’s earlier bad conduct. United States ex rel. Adel v. Shaughnessy, 2 Cir., 183 F.2d 371. The facts set out in the Board’s opinion respecting his criminal record and his tenuously explained affluence were ample justification for denial of discretionary relief. Mor does the allegation that the appellant; was treated differently from other aliens similarly situated raise a triable issue of fact. Determination of what weight to give to a prior conviction of crime necessarily depends upon the circumsiances of the particular case. No two cases can be precisely similar. The appellant tries to bring himself within the scope of United States ex rel. Knauff v. .McGrath, 2 Cir., 181 F.2d 839, vacated as moot, 340 U.S. 940, 71 S.Ct. 504, 95 L.Ed. 678, where it was alleged that the uniform practice was to defer deportation in all cases where a bill of relief was pending in Congress. There the uniform practice was a provable fact. It is not such when, as here, the alleged uniform practice relates to the appraisement of the moral reformation of convicted deportees. Order affirmed. . This statute was repealed by the Immigration and Nationality Act of June 27, 1952, effective 180 days thereafter, and the provisions as to discretionary suspension of deportation were replaced by section 241 of the 1952 Act, 8 U.S.C.A. § 1254. However, the “savings clauses” of the later Act kept the earlier statute alive for pending proceedings, and provided that “An application Cor suspension of deportation under section 19 of the Immigration Act of 1917, as amended * * * which is pending on the date of enactment of this Act shall be regarded as a proceeding within^the meaning of this subsection.” 8 U.S.C.A. § 1101 note. P.L. 414, § 405(a), 66 Stat. 280. The appellant’s application was pending until the Board of Immigration Appeals rendered its decision on April 3, 1953. . Judge Noonan’s memorandum decision reads: “A review of" } ]

[ { "docid": "10676750", "title": "", "text": "530 (1933) cert. den. 295 U.S. 755, 55 S.Ct. 913, 79 L.Ed. 1698 (1935). The Constitution places the authority to dispose of public land exclusively in the Congress and executive power to convey any interest in these lands must be traced to some Congressional delegation of its authority. Sioux Tribe v. United States, 316 U.S. 317, 326, 62 S.Ct. 1095, 86 L.Ed. 1501 (1942); See also, Tee-Hit-Ton v. United States, 348 U.S. 272, 284-285, 291, 75 S.Ct. 313, 99 L.Ed. 314 (1954); also Super v. Work, cited infra. The moral obligations of the government toward the Indians, whatever they may be, are for the Congress alone to recognize and the courts can exercise only such jurisdiction over the subject as Congress may confer upon them. Blackfeather v. United States, 190 U.S. 368, 373, 23 S.Ct. 772, 47 L.Ed. 1099 (1902); also Super v. Work, infra. Absent some pertinent statutory authorization by the Congress, neither individual Indians nor Indian bands or tribes have any right to demand land of their choice. Finch v. United States, 387 F.2d 13 (10th Cir. 1967). It has been the custom of the Congress to set aside part of the public domain for the use and occupation of a tribe or tribe of Indians — generally by treaty (prior to 1871) and thereafter by Act of Congress or by Executive Order when authorized by Act of Congress. Sioux Tribe v. United States, 94 Ct.Cl. 150, 170, aff’d 316 U.S. 317, 62 S.Ct. 1095, 86 L.Ed. 1501. THE RECORD Turning to the record of Congressional action with respect to the lands within the Klamath National Forest, from which the plaintiff Karuks now ask a reservation grant, we note that in May 18, 1928, the Congress by an Act of that date, 25 U.S.C. Secs. 651, 652, recognized that its failure to set apart certain reservations for the Indians of California pursuant to the so-called Eighteen Treaties (including the treaty of November 4, 1851 with the Karuk Tribe hereinabove noted (See Note 4)) was a loss to the Indians and declared : “It is declared that the loss" } ]

[ { "docid": "14798779", "title": "", "text": "of the avowed solicitude of the Federal Government for the welfare of its Indian wards.” Id. at 354, 62 S.Ct. at 255. See also United States v. Gemmill, 535 F.2d 1145 (9th Cir. 1976); State of New Mexico v. Aamodt, 537 F.2d 1102 (10th Cir. 1976); United States v. Pueblo of San Ildefonso, 513 F.2d 1383, 206 Ct.Cl. 649 (1975); United States v. Kiowa, Comanche, and Apache Tribes of Indians, 479 F.2d 1369, 202 Ct.Cl. 29 (1973), cert. denied Wichita Indian Tribe of Oklahoma v. United States, 416 U.S. 936, 94 S.Ct. 1936, 40 L.Ed.2d 287. In the present case, it is quite clear that the United States intended to extinguish the Indians’ aboriginal title to the land ceded in 1837. It sought to end the exclusivity of their occupation by opening the land for white settlement, and it sought the right to establish logging camps without fear of reprisal by the Indians. Those purposes were clearly contrary to the Indians’ right to exclusive occupation of the land, and thus required termination of that right. However, as I pointed out in United States v. Bouchard, supra, treaties with Indians must be construed as the Indians would have understood them. See Choctaw Nation v. Oklahoma, supra; Choctaw Nation v. United States, 119 U.S. 1, 7 S.Ct. 75, 30 L.Ed. 306 (1886); Worcester v. Georgia, 31 U.S. (6 Peters) 515, 8 L.Ed. 483 (1832); and the cases cited at footnote 7. Even applying liberal rules of treaty construction to the 1837 treaty, I conclude that when they signed it, the Indians knew they were relinquishing significant rights in their land, including the right to expel whites who worked or settled in the territory. Probably the Indians did not understand legal concepts of title and aboriginal title, but the remarks of the spokesman Aish-ke-bo-gi-ke-she on the last day of the treaty council indicate their understanding of a relinquishment of significant rights in the land: “Your children are willing to let you have their lands, but they wish to reserve the privilege of making sugar from the trees and getting their living from the" }, { "docid": "573799", "title": "", "text": "right of occupancy, or otherwise....” United States v. Santa Fe Pacific R.R. Co., 314 U.S. at 347, 62 S.Ct. at 252 (citations omitted). Therefore, the issue is whether the Havasupai aboriginal title to the land, including the Canyon Mine site, has been extinguished. The treatment of the land is instructive to the issue of extinguishment. The original Havasupai reservation had been created by executive order in 1880. In 1882, the Havasupai reservation was diminished in size by executive order to an area of about 518 acres. The creation of an Indian Reservation, however, does not invariably extinguish aboriginal title to outlying areas. United States v. Santa Fe P. R.R., 314 U.S. 339, 351-56, 62 S.Ct. 248, 253-56, 86 L.Ed. 260 (1941); Gila River Pima-Maricopa Indian Community v. United States, 494 F.2d 1386, 1389, cert. denied, 419 U.S. 1021, 95 S.Ct. 497, 42 L.Ed.2d 295 (1974). An action of extin-guishment by executive action depends on the acquiescence of Congress for its efficacy. United States v. Southern Pac. Transp. Co., 543 F.2d 676, 689 (1976). The Canyon Mine site is located on ground that was part of the original Grand Canyon Forest Reserve established by presidential proclamation in 1893 pursuant to the Forest Reservation Act of 1891. In 1908, the area was incorporated into the National Forest System as part of the Co-conino National Forest. The area officially became part of the Kaibab National Forest in 1934. Several courts have determined that the reservation of lands for forest purposes effectively extinguishes Indian title. United States v. Pueblo of San Ildefonso, 513 F.2d 1383, 1386, 1391-92, 206 Ct.Cl. 649 (1975); Gemmill, 535 F.2d at 1149. In Gemmill, the Ninth Circuit determined that “any ambiguity about extin-guishment that may have remained after the establishment of the forest reserves, has been decisively resolved by Congressional payment of compensation to the ... Indians for these lands.” Id. at 1149. In the instant case, the final judgment entered by the Indian Claims Commission and payment of the judgment by Congress resolves any doubt that aboriginal title of the Hava-supai Tribe was extinguished. In the Ha-vasupai’s petition to" }, { "docid": "11109173", "title": "", "text": "required to undertake a de novo review of the Forest Service’s plan. See 5 U.S.C. § 706 (court reviews agency action for arbitrariness or abuse of discretion). What the district court did fulfilled its role in reviewing an EIS. The Tribe also claims a right of access, essentially amounting to an easement, to the area that includes the mine site. This claim is based on an argument that until the 1970s, when the Grand Canyon National Park Enlargement Act, 16 U.S.C. § 228i (“GCEA”), was passed, the Tribe retained aboriginal title to that land. The GCEA includes a provision that states that it is not to be construed as depriving the Tribe of access to its religious sites. Since the GCEA is what extinguished aboriginal title, the Tribe claims, this provision works as a condition upon the Tribe’s relinquishment, and pursuant to it the Tribe retained part of the “bundle of rights” — namely, an easement to any religious site included within the land it gave up. If the GCEA were the legislative action through which the Havasupais’ aboriginal title to the area was extinguished, the Tribe’s argument on this issue would have significant merit. Such, however, is not the case. In 1969, the Indian Claims Commission ordered Congress to pay, and Congress did pay, compensation to the Havasu-pai for this land, based on the Commission’s finding that Congress had taken the land in 1880. This finding, in turn, was made after a hearing in which the Havasu-pai presented evidence that such a taking had occurred at that time. Once Congress compensated the Tribe, aboriginal title was extinguished. See United States v. Gemmill, 535 F.2d 1145, 1148-49 (9th Cir.), cert. denied sub nom. Wilson v. United States, 429 U.S. 982, 97 S.Ct. 496, 50 L.Ed.2d 591 (1976). For these and the reasons stated by the district court, the judgment is AFFIRMED." }, { "docid": "573797", "title": "", "text": "prior and superior right of access to their sacred site at the Canyon Mine site based on their aboriginal title which plaintiffs argue was preserved by the Grand Canyon National Park Enlargement Act, 16 U.S.C. § 228i (hereinafter the “GCEA”). Defendants assert that plaintiffs’ reliance on the GCEA is misplaced and that there is no doubt that by the time the GCEA became law in January 1975, all interest of the Havasupai Tribe in any of the non-trust lands comprising the Kaibab National Forest, including the Canyon Mine site had been extinguished. It is undisputed that plaintiff’s aboriginal title once encompassed the area of the Canyon Mine site. Aboriginal title is a term of art used to describe an Indian possessory interest in land which Indians have inhabited since time immemorial. County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 234, 105 S.Ct. 1245, 1251, 84 L.Ed.2d 169 (1985) (citing Cohen, Original Indian Title, 32 Minn.L.Rev. 28 (1947)). The Supreme Court has consistently recognized the aboriginal rights of the Indians to their lands. The Indians right of occupancy is “ ‘as sacred as the fee simple of the whites.’ ” Id. at 235, 105 S.Ct. at 1251 (quoting Mitchel v. United States, 9 Pet. 711, 746, 9 L.Ed. 283 (1835)). Aboriginal title is a permissive right of occupancy granted by the federal government. United States v. Gemmill, 535 F.2d 1145, 1147 (9th Cir.), cert. denied, 429 U.S. 982, 97 S.Ct. 496, 50 L.Ed.2d 591 (1976) (citing Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 573-74, 5 L.Ed. 681 (1823) (Marshall, C.J.)). Aboriginal title may be extinguished by the federal government at any time, although an “extinguishment cannot be lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards.” Id. at 1147 (quoting United States v. Santa Fe P. R.R. Co., 314 U.S. 339, 354, 62 S.Ct. 248, 255, 86 L.Ed. 260 (1941)). Congress’s power to extinguish aboriginal possession is supreme, “whether it be done by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the" }, { "docid": "573802", "title": "", "text": "be given great weight if reasonable. Pueblo of San Ildefonso, 513 F.2d at 1391. In Gemmill, the Ninth Circuit recognized the difficulty of establishing the exact date on which Indian title has been extinguished. 535 F.2d at 1149. The Ninth Circuit’s conclusion, which is equally applicable to the instant case where counsel went through the various actions in detail, is that “[a]ny one of these actions examined in isolation, may not provide an unequivocal answer to the question of extinguishment.” Id. However, the actions by the federal government which culminated in the payment of the compromise settlement agreement show that the aboriginal title of the Havasupai has been extinguished. See id. Because of the payment of the compromise settlement by Congress, the court need not set an exact date for extinguishment of the Havasupai Tribes aboriginal title. The court simply recognizes that prior to the enactment of the GCEA, the Havasupai had no aboriginal title in the lands encompassing the Canyon Mine site. Plaintiffs rely on the Examiners’ Report on Tribal Claims to Released Railroad Lands in Northwestern Arizona, (May 24, 1942); Hearing exhibit # 4, for their proposition that Havasupai aboriginal title and the right of use had not been extinguished prior to enactment of the GCEA. The purpose of the examination was to determine whether and to what extent any of the lands released to the Santa Fe Pacific Railroad Company were subject to outstanding occupancy or other rights. It is undisputed that the land under scrutiny in the Examiners’ Report did not concern the land which now comprises the Canyon Mine site. Plaintiffs contend that the analysis of their aboriginal title is applicable to the instant case. The examiners were of the opinion that no such extinguishment of aboriginal title had occurred. Id. at 49. The Examiners’ Report, however, predates the Indian Claims Commission created by Congress in 1946, the final judgment entered by the Commission in 1969, and the Gemmill decision and United States v. Dann, 873 F.2d 1189, 1194 (9th Cir.1989). In light of the foregoing extinguishment analysis, the court finds that the Examiners’ conclusions" }, { "docid": "9841021", "title": "", "text": "granted and for which a confirmed patent had been issued. Id. at 481, 44 S.Ct. at 621. The Court followed its decision in Barker and held that the Indians’ claim was lost by the failure to present it to the commission. Id. at 485-86, 44 S.Ct. at 623. Although not entirely clear in the opinion, the Court in a later decision observed that the Indians in Title Insurance “claimed an aboriginal right of occupancy.” See Sum-ma Corp. v. California ex rel. State Lands Commission, 466 U.S. 198, 208, 104 S.Ct. 1751, 1757, 80 L.Ed.2d 237 (1984). This same principle was applied to non-mission Indians in Super v. Work, 3 F.2d 90 (D.C.Cir.1925), aff’d per curiam, 271 U.S. 643, 46 S.Ct. 481, 70 L.Ed. 1128 (1926). The Court of Appeals observed that Barker and Title Insurance involved mission Indians while Super concerned “Indians [who] were merely roving bands,” 3 F.2d at 91, but found the distinction irrelevant. The Supreme Court summarily affirmed, citing Barker and Title Insurance as authority. 271 U.S. 643, 46 S.Ct. 481, 70 L.Ed. 1128. In 1984, the Court addressed the State of California’s obligation under the Act of 1851 to present land claims to the commission. Summa Corp. v. California ex rel. State Lands Commission, 466 U.S. 198, 104 S.Ct. 1751, 80 L.Ed.2d 237 (1984). In dispute were tidelands to which Summa held a confirmed patent derived from a Mexican land grant. California claimed it had acquired an interest in the tidelands upon its admission to the union, and contended that this sovereign right survived the land confirmation proceedings. Citing Barker and Title Insurance, the Court held that California’s claim must have been presented in the patent proceedings or be barred. Id. at 209, 104 S.Ct. at 1758. Although the Court in Summa did not have before it the question of whether Indians were required to file claims, the far-reaching holding evidences the Court’s conclusion that the land confirmation proceedings were intended to be all-encompassing. The Chumash rely primarily on the case of Cramer v. United States, 261 U.S. 219, 43 S.Ct. 342, 67 L.Ed. 622 (1923)." }, { "docid": "926462", "title": "", "text": "to take an allotment on the Quinault Reservation and to exercise the fishing rights which accompany that allotment. Those fishing rights are secured by Article III which protects the rights of the Quinault and any affiliated tribe to fish at all usual and accustomed Quinault fishing grounds. The Columbia River areas claimed by the Wahkiakum were not traditional grounds of the Qui-nault and thus are not covered by Article III. Therefore, the Wahkiakum do not hold a treaty-protected right to fish the Columbia River. ABORIGINAL FISHING RIGHTS Appellants, as an alternative basis for claiming fishing rights, alleged that members of the Wahkiakum have fished the Columbia River since the tribe’s aboriginal existence and based on this long continuous use of the area they hold an aboriginal right to fish there. Even assuming that appellants can establish a long history of fishing in the Columbia River, that aboriginal right has been extinguished by Congress. Indian title based on aboriginal possession is a permissive right of occupancy; it may be extinguished by the federal government at any time without any legally enforceable obligation to compensate the Indians. Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279, 75 S.Ct. 313, 317, 99 L.Ed. 314 (1955); United States v. Gemmill, 535 F.2d 1145, 1147 (9th Cir.), cert. denied, 429 U.S. 982, 97 S.Ct. 496, 50 L.Ed.2d 591 (1976). The only relevant question is whether Congress intended to extinguish the Indian title. United States v. Gemmill, id., at 1148. Assuming that the Wahkiakum possessed an aboriginal fishing right, we find that Congress intended that all Wahkiakum rights, including their fishing right, be extinguished. The Act of August 24, 1912 and its legislative history manifest this congressional intent. The Act provided for payment of a sum of money to the members of the Wahkiakum in settlement of all claims against the United States for the lands described in an unratified treaty signed by the Wahkiakum on August 8, 1851. The record shows that this sum was accepted by the then living Wahkiakum. While it may be argued that this payment was recognized dispossession of tribal lands" }, { "docid": "573800", "title": "", "text": "Mine site is located on ground that was part of the original Grand Canyon Forest Reserve established by presidential proclamation in 1893 pursuant to the Forest Reservation Act of 1891. In 1908, the area was incorporated into the National Forest System as part of the Co-conino National Forest. The area officially became part of the Kaibab National Forest in 1934. Several courts have determined that the reservation of lands for forest purposes effectively extinguishes Indian title. United States v. Pueblo of San Ildefonso, 513 F.2d 1383, 1386, 1391-92, 206 Ct.Cl. 649 (1975); Gemmill, 535 F.2d at 1149. In Gemmill, the Ninth Circuit determined that “any ambiguity about extin-guishment that may have remained after the establishment of the forest reserves, has been decisively resolved by Congressional payment of compensation to the ... Indians for these lands.” Id. at 1149. In the instant case, the final judgment entered by the Indian Claims Commission and payment of the judgment by Congress resolves any doubt that aboriginal title of the Hava-supai Tribe was extinguished. In the Ha-vasupai’s petition to the Indian Claims Commission, the Havasupai asserted that the action of the United States barring the “... Tribe from its original territory after November 21, 1871, in establishing a Hava-supai Reservation and in excluding the ... Tribe from that portion of the Havasupai country outside the said Reservation therefore constituted a wrongful taking of all rights, title and interest in the said land belonging to the ... Tribe.” The Havasupai Tribe v. United States, Docket No. 91 (Jan. 22, 1951); Hearing exhibit # 13 at 1141. The Commission did not have the power to extinguish aboriginal title, but was a mechanism set up by Congress to make determinations of whether title had, in fact, been extinguished. The Commission determined that “by establishing a reservation for the [Havasupai] on June 8, 1880 and March 3, 1882, the United States wrongfully took [Havasupai] aboriginal title lands without payment of compensation therefor....” The Havasupai Tribe v. United States, 20 Ind.Cl.Comm. 210, 220 (1968); Hearing exhibit # 15. The determinations of the Commission in establishing the taking date should" }, { "docid": "18272614", "title": "", "text": "Cong., 2d Sess., LD 142 (1912); Act of July 20, 1912, ch. 244, 37 Stat. 196, LD 145. . House Report No. 291, 59th Cong., 1st Sess., LD 119 (1906) includes both past and present-tense references to the Uintah Reservation alongside past-tense references to lands within the Rosebud and Devil’s Lake reservations. . Counsel for the defendants and for amicus Paradox Production Corp. make repeated reference to United States v. Pueblo of San Ildefonso, 513 F.2d 1383 (Ct.C1.1975) United States v. Gemmill, 535 F.2d 1145 (9th Cir. 1976), and to Uintah and White River Bands of Ute Indians v. United States, 139 Ct.Cl. 1 (1957) and id., 152 F.Supp. 953 (Ct.C1.1957), as being dispositive of the reservation status of the national forest lands. In its reply brief, the Tribe correctly points out that [T]his citation is totally irrelevant to the issues in this case, since even the extinguishment of statutorially recognized titles (which is of greater legal magnitude than aboriginal title), as by the granting of land to homesteaders, does not terminate Indian Reservation status. Id., at 25. It is fundamental that extinguishment of Indian title to lands within a reservation by itself does not withdraw those lands from a reservation. See Seymour v. Superintendent, 368 U.S. 351, 357-358, 82 S.Ct. 424, 427-428, 7 L.Ed.2d 346 (1962); United States v. Celestine, 215 U.S. 278, 285, 30 S.Ct. 93, 94, 54 L.Ed. 195 (1909); 18 U.S.C. § 1151(a) (1976); see also Ellis v. Page, 351 F.2d 250, 252 (10th Cir. 1965); Hilderbrand v. United States, 287 F.2d 886 (10th Cir. 1961), affirming United States v. Hildebrand, 190 F.Supp. 283, 286-287 (D.Kan.1960). Indian title is not at issue here; territorial boundaries are, and are determined by separate rules and principles. . Proclamation of July 14, 1905, 34 Stat., pt. 3, 3116, III Kapp. 602-605, LD 107. . 58th Cong., 3d Sess., LD 98. . Section 8 of the bill provided for establishment of an Indian timber and coal reserve. Section 9 protected Indian grazing rights in the forest lands that overlapped into the designated Indian grazing reserve. Section 11 provided that proceeds" }, { "docid": "17832084", "title": "", "text": "the forest reserves, has been decisively resolved by congressional payment of compensation to the Pit River Indians for these lands. In 1946 Congress established the Indian Claims Commission to hear and determine claims against the United States by groups of American Indians. (25 U.S.C. §§ 70 to 70v-2) The Pit River Indians filed a claim with the Commission to receive compensation for the taking of their Indian title lands. (Pit River Indians v. United States (1959) 7 Ind.Cl. Comm. 815.) In 1959, the Commission found that the Pit River Indian title to approximately 3,386,000 acres had been taken by the federal government. (Id. at 862.) Five years later, after negotiations and voting by the various tribes, the Commission approved a compromise final settlement between the United States and all the California Indians (including the Pit River Indians) with claims pending before the Commission. (Thompson v. United States (1964) 13 Ind.Cl.Comm. 369, 513.) That same year Congress appropriated the funds to pay the settlement. (Act of October 7, 1964, Pub.L. No. 88-635, ch. 11, 78 Stat. 1033; Andrade v. United States (1973) 485 F.2d 660, 661, 202 Ct.Cl. 988.) Payment of the Pit River claim eliminates any lingering doubt that by 1964 Congress had revoked the Indians’ rights of permissive occupancy. The exact date on which Indian title has been extinguished is often difficult to determine. (See United States v. Pueblo of San Ildefonso, supra, at 1391.) The four events we have recounted amply illustrate that problem. Any one of these actions, examined in isolation, may not provide an unequivocal answer to the question of ex-tinguishment. However, the activity of the federal government, beginning with the ambiguous Act of 1851 and culminating in the payment of the compromise settlement, has included expulsion by force, inconsistent use, and voluntary payment of compensation agreement. (See Santa Fe, supra, 314 U.S. at 347, 62 S.Ct. at 252, 86 L.Ed. at 270.) This century-long course of conduct amply demonstrates that the Pit River Indian title has been extinguished. II. The Timber Cases. As an alternative to the Indian title defense, the timber appellants contend that" }, { "docid": "14798778", "title": "", "text": "and Fox Tribe, supra. The evidence indicates, and I will assume for the purposes of evaluating the claims in this case, that the Chippewa had aboriginal title to the land at issue in northern Wisconsin at least until 1837. It is the fee title based on the European conquest which the United States asserts in this suit, and which the State contends was granted it by the United States through the 1846 enabling Act of Congress. Whether, beginning in 1837, the Chippewa lost their aboriginal title but retained rights in the disputed land and, if so, what was the nature of those rights are matters that require inquiry. From aboriginal title to right of permissive occupation Extinguishment of Indian title may be “by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise . .” United States v. Santa Fe Pacific R. Co., 314 U.S. 339 at 347, 62 S.Ct. 248, 252, 86 L.Ed. 260 (1941). “But an extinguishment cannot be lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards.” Id. at 354, 62 S.Ct. at 255. See also United States v. Gemmill, 535 F.2d 1145 (9th Cir. 1976); State of New Mexico v. Aamodt, 537 F.2d 1102 (10th Cir. 1976); United States v. Pueblo of San Ildefonso, 513 F.2d 1383, 206 Ct.Cl. 649 (1975); United States v. Kiowa, Comanche, and Apache Tribes of Indians, 479 F.2d 1369, 202 Ct.Cl. 29 (1973), cert. denied Wichita Indian Tribe of Oklahoma v. United States, 416 U.S. 936, 94 S.Ct. 1936, 40 L.Ed.2d 287. In the present case, it is quite clear that the United States intended to extinguish the Indians’ aboriginal title to the land ceded in 1837. It sought to end the exclusivity of their occupation by opening the land for white settlement, and it sought the right to establish logging camps without fear of reprisal by the Indians. Those purposes were clearly contrary to the Indians’ right to exclusive occupation of the land, and thus required termination of that right." }, { "docid": "17832083", "title": "", "text": "at 347, 62 S.Ct. at 252, 86 L.Ed. at 270) and the military action of the mid-nineteenth century is a strong indication of the sovereign’s intent to revoke the Pit River rights of permissive occupancy. In the beginning of the twentieth century, the United States took action that further clarified the status of the land. At trial the Government introduced uncontroverted documentary evidence from the Bureau of Land Management showing that in the early 1900’s the claimed land was included in national forest reserves which later became the Shasta Trinity and Lassen National Forests. The continuous use of the land to the present time for the purposes of conservation and recreation, after the Indians had been forcibly expelled, leaves little doubt that Indian title was extinguished. The Court of Claims has recently held that the designation of land as a forest reserve is itself effective to extinguish Indian title. (United States v. Pueblo of San Ildefonso (Ct.Cl.1975) 513 F.2d 1383, 1386, 1391-92.) Finally, any ambiguity about extinguishment that may have remained after the establishment of the forest reserves, has been decisively resolved by congressional payment of compensation to the Pit River Indians for these lands. In 1946 Congress established the Indian Claims Commission to hear and determine claims against the United States by groups of American Indians. (25 U.S.C. §§ 70 to 70v-2) The Pit River Indians filed a claim with the Commission to receive compensation for the taking of their Indian title lands. (Pit River Indians v. United States (1959) 7 Ind.Cl. Comm. 815.) In 1959, the Commission found that the Pit River Indian title to approximately 3,386,000 acres had been taken by the federal government. (Id. at 862.) Five years later, after negotiations and voting by the various tribes, the Commission approved a compromise final settlement between the United States and all the California Indians (including the Pit River Indians) with claims pending before the Commission. (Thompson v. United States (1964) 13 Ind.Cl.Comm. 369, 513.) That same year Congress appropriated the funds to pay the settlement. (Act of October 7, 1964, Pub.L. No. 88-635, ch. 11, 78 Stat." }, { "docid": "13829900", "title": "", "text": "out of the reservation lands it was expressly provided that the reserve be an addition to the Uintah Forest Reserve which theretofore existed. The addition was to be “subject to the laws, rules, and regulations governing forest reserves.” Our review of the 1905 Act, the presidential proclamation, the pertinent legislative history and the subsequent treatment of the subject lands convinces us that the forest reserve lands are not part of the reservation. No express language of termination of Indian jurisdiction over the Forest Service lands or an express extinguishment of the reservation boundaries was required. As we noted previously the Supreme Court has held that the “clear language of express termination” is not a required talisman for termination or disestablishment. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 588 n. 4, 97 S.Ct. 1361, 1364 n. 4, 51 L.Ed.2d 660. The authority was present and was exercised to so change the land status from reservation lands to public forest reserves. The administrative authority over the lands was transferred from the Secretary of the Interior to the Secretary of Agriculture pursuant to the Act of February 1,1905, ch. 288, 33 Stat. 628, and subjected the Forest Service lands to an entirely different regulatory regime. By transferring of reservation status to the status of the Forest Service lands thus for public use and by shifting the administrative authority over them, Congressional intent to remove the lands from the reservation is clearly evidenced. Our holding that Indian jurisdiction is inconsistent with the land’s status as forest reserve land is consonant with recent holdings by the Court of Claims and the Ninth Circuit. Both courts held that the designation of land as a forest reserve is itself effective to extinguish Indian title. United States v. Pueblo of San Ildefonso, 513 F.2d 1383, 1386, 1391-93 (Ct.Cl.); United States v. Gemmill, 535 F.2d 1145 (9th Cir.). The Ninth Circuit went on to find that “any ambiguity about extinguishment that may have remained after the establishment of the forest reserves, has been decisively resolved by congressional payment of compensation to the ... Indians for these lands.” Id." }, { "docid": "926463", "title": "", "text": "time without any legally enforceable obligation to compensate the Indians. Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279, 75 S.Ct. 313, 317, 99 L.Ed. 314 (1955); United States v. Gemmill, 535 F.2d 1145, 1147 (9th Cir.), cert. denied, 429 U.S. 982, 97 S.Ct. 496, 50 L.Ed.2d 591 (1976). The only relevant question is whether Congress intended to extinguish the Indian title. United States v. Gemmill, id., at 1148. Assuming that the Wahkiakum possessed an aboriginal fishing right, we find that Congress intended that all Wahkiakum rights, including their fishing right, be extinguished. The Act of August 24, 1912 and its legislative history manifest this congressional intent. The Act provided for payment of a sum of money to the members of the Wahkiakum in settlement of all claims against the United States for the lands described in an unratified treaty signed by the Wahkiakum on August 8, 1851. The record shows that this sum was accepted by the then living Wahkiakum. While it may be argued that this payment was recognized dispossession of tribal lands only and not of other tribal rights, it is clear from the legislative history that Congress believed that all of the tribal rights had already been extinguished. In the unratified treaty of August 8, 1851, the Wahkiakum had attempted to reserve the right to occupy their old homes, to cut timber on the ceded lands and to fish in the Columbia River. According to Senate Report No. 503 which accompanied the Act of August 24, 1912, these rights, the lands ceded by the unratified treaty and the reserved lands had all been taken by the government without compensation, and officers of the Indian Department were urging that some compensation be made. Therefore, we conclude that Congress passed the Act of August 24, 1912, providing the payment to the Wahkiakum, in order to express congressional intent that all Wahkiakum rights, including fishing rights, be extinguished. CONCLUSION Finding as a matter of law that the Treaty of Olympia does not provide treaty protection for traditional Wahkiakum fishing grounds and that any aboriginal Wahkia-kum fishing rights were extinguished" }, { "docid": "10676753", "title": "", "text": "States, to hear and determine all such equitable claims of said Indians against the United States and to render final decree thereon.” In Indians of California v. United States, 98 Ct.Cl. 583 (1942), brought by the Attorney General of California pursuant to the Act of 1928, the court found and held that the plaintiff California Indians, including the Karuk Tribe, consisted of wandering bands, having no separate reservations and occupying no permanent sections of land, and that they had no title to any particular land under the Mexican law in California; that whatever lands they may have claimed became a part of the public domain of the United States; that the establishment of a commission to negotiate treaties with them was not the recognition of any claim of cession under the Mexican law or the use and occupancy of any definite country; that in the negotiation of the 18 treaties, which were never ratified by the Senate of the United States, a promise was made to the Indians which was never kept by the government; that by the Act of 1928 the Congress recognized an equitable claim, a moral claim, which was to be compensated in a money award. The court said: “This case does not involve the payment for land of which the Indians had a cession or use and occupancy. No legal claim under any treaty or Act of Congress setting aside land for the use of the Indians of California can be sustained.” It should also be noted that even before passage of the Act of 1928, members of the “Karok or Peh-tsick” Tribes had brought a suit in District Court, District of Columbia, Super v. Work, 55 App.D.C. 149, 3 F.2d 90 (1925) to assert their rights and interests in the Klamath National Forest, averring that they had acquired rights therein by virtue of long continued possession and occupancy, so-called “Indian title.” The holding of the court in that case had been also to the effect that whatever rights these “Karoks” had in the Klamath National Forest lands prior to cession of California to the United" }, { "docid": "573801", "title": "", "text": "the Indian Claims Commission, the Havasupai asserted that the action of the United States barring the “... Tribe from its original territory after November 21, 1871, in establishing a Hava-supai Reservation and in excluding the ... Tribe from that portion of the Havasupai country outside the said Reservation therefore constituted a wrongful taking of all rights, title and interest in the said land belonging to the ... Tribe.” The Havasupai Tribe v. United States, Docket No. 91 (Jan. 22, 1951); Hearing exhibit # 13 at 1141. The Commission did not have the power to extinguish aboriginal title, but was a mechanism set up by Congress to make determinations of whether title had, in fact, been extinguished. The Commission determined that “by establishing a reservation for the [Havasupai] on June 8, 1880 and March 3, 1882, the United States wrongfully took [Havasupai] aboriginal title lands without payment of compensation therefor....” The Havasupai Tribe v. United States, 20 Ind.Cl.Comm. 210, 220 (1968); Hearing exhibit # 15. The determinations of the Commission in establishing the taking date should be given great weight if reasonable. Pueblo of San Ildefonso, 513 F.2d at 1391. In Gemmill, the Ninth Circuit recognized the difficulty of establishing the exact date on which Indian title has been extinguished. 535 F.2d at 1149. The Ninth Circuit’s conclusion, which is equally applicable to the instant case where counsel went through the various actions in detail, is that “[a]ny one of these actions examined in isolation, may not provide an unequivocal answer to the question of extinguishment.” Id. However, the actions by the federal government which culminated in the payment of the compromise settlement agreement show that the aboriginal title of the Havasupai has been extinguished. See id. Because of the payment of the compromise settlement by Congress, the court need not set an exact date for extinguishment of the Havasupai Tribes aboriginal title. The court simply recognizes that prior to the enactment of the GCEA, the Havasupai had no aboriginal title in the lands encompassing the Canyon Mine site. Plaintiffs rely on the Examiners’ Report on Tribal Claims to Released Railroad" }, { "docid": "9841020", "title": "", "text": "this holding is not clear. As “mission Indians,” the defendants apparently claimed a right of occupancy derived from the Mexican government; in addition, one of the land grants included an express condition that the grantee “not molest the Indians that thereon may be established.” See id. at 482, 493, 21 S.Ct. at 690, 695. Either of these facts would support the Court’s holding on the basis that the Indians’ rights were “derived from the Mexican government” and thus subject to the filing requirement of the Act of 1851. The Court also concluded that the Indians had abandoned the lands prior to the cession and therefore had no valid right of occupancy. Id. at 499, 21 S.Ct. at 697. This finding would likewise support the Court’s holding adverse to the Indians. Twenty-three years later the Court reaffirmed the Barker decision in United States v. Title Insurance and Trust Co., 265 U.S. 472, 44 S.Ct. 621, 68 L.Ed. 1110 (1924). In Title Insurance, mission Indians claimed a “perpetual right” to occupy land which the Mexican government had granted and for which a confirmed patent had been issued. Id. at 481, 44 S.Ct. at 621. The Court followed its decision in Barker and held that the Indians’ claim was lost by the failure to present it to the commission. Id. at 485-86, 44 S.Ct. at 623. Although not entirely clear in the opinion, the Court in a later decision observed that the Indians in Title Insurance “claimed an aboriginal right of occupancy.” See Sum-ma Corp. v. California ex rel. State Lands Commission, 466 U.S. 198, 208, 104 S.Ct. 1751, 1757, 80 L.Ed.2d 237 (1984). This same principle was applied to non-mission Indians in Super v. Work, 3 F.2d 90 (D.C.Cir.1925), aff’d per curiam, 271 U.S. 643, 46 S.Ct. 481, 70 L.Ed. 1128 (1926). The Court of Appeals observed that Barker and Title Insurance involved mission Indians while Super concerned “Indians [who] were merely roving bands,” 3 F.2d at 91, but found the distinction irrelevant. The Supreme Court summarily affirmed, citing Barker and Title Insurance as authority. 271 U.S. 643, 46 S.Ct. 481, 70" }, { "docid": "17832082", "title": "", "text": "a prior government); Act of March 3, 1853, ch. 145, § 6, 10 Stat. 244, 246-A7 (limiting post-1853 settlement on land occupied or possessed by any Indian tribe).) Nevertheless, even if we agree, arguendo, that the 1851 Act was ambiguous as to the extinguishment of Indian title, a series of federal actions subsequent to 1851 clearly demonstrates that the Pit River Indian title has been extinguished. First, in the 1850’s and the 1860’s the Government undertook concentrated military action against the Pit River Indians and other tribes in the area. In 1857, Fort Crook was established as a base of military operations and in 1867 the various tribes were “decisively overcome” at the Battle of the Infernal Caverns. (Pit River Indians v. United States (1959) 7 Ind. Cl.Comm 815, 862.) Conceding that they have not been in physical possession of the land for 100 years, the Indians contend that their title survived because they were removed by force, rather than by voluntary abandonment. An extinguishment by force, however, is effective (Santa Fe, supra, 314 U.S. at 347, 62 S.Ct. at 252, 86 L.Ed. at 270) and the military action of the mid-nineteenth century is a strong indication of the sovereign’s intent to revoke the Pit River rights of permissive occupancy. In the beginning of the twentieth century, the United States took action that further clarified the status of the land. At trial the Government introduced uncontroverted documentary evidence from the Bureau of Land Management showing that in the early 1900’s the claimed land was included in national forest reserves which later became the Shasta Trinity and Lassen National Forests. The continuous use of the land to the present time for the purposes of conservation and recreation, after the Indians had been forcibly expelled, leaves little doubt that Indian title was extinguished. The Court of Claims has recently held that the designation of land as a forest reserve is itself effective to extinguish Indian title. (United States v. Pueblo of San Ildefonso (Ct.Cl.1975) 513 F.2d 1383, 1386, 1391-92.) Finally, any ambiguity about extinguishment that may have remained after the establishment of" }, { "docid": "18272613", "title": "", "text": "erroneous reference to Uintah Reservation lands having been “restored to the public domain.” Id. at 2. That reference, repeated verbatim in H.Doc.No.1250, 63d Cong., 2d Sess., LD 149, at 2 (1914) comprises the only legislative reference to the Uintah lands having been so restored under the 1905 Act. . A memorial from the Utah Legislature reprinted id., refers to lands “formerly within the boundaries of the Uintah Reservation” but is referring to the Indian grazing lands reserved under the 1905 Act — by definition, Indian reservation lands. . See S. 321, 59th Cong., 1st Sess., (“lands which were heretofore a part of the Uintah Indian Reservation”); S.Rep.No.139, 59th Cong., 1st Sess., LD 117 (1906) (same); 40 Cong.Rec. 144, 1064, 1465 (1906), LD 116; S. 3016, 66th Cong., 2d Sess., (“Unsold lands formerly included in the Uintah Indian Reservation”); H.Rep.No.901, 66th Cong., 2d Sess., LD 154 (1920); Act of May 14, 1920, ch. 187, 41 Stat. 599, LD 155. S. 6934, 62d Cong., 2d Sess. (lands “formerly a part of the Uintah Indian Reservation”); S.Rep.No.893, 62d Cong., 2d Sess., LD 142 (1912); Act of July 20, 1912, ch. 244, 37 Stat. 196, LD 145. . House Report No. 291, 59th Cong., 1st Sess., LD 119 (1906) includes both past and present-tense references to the Uintah Reservation alongside past-tense references to lands within the Rosebud and Devil’s Lake reservations. . Counsel for the defendants and for amicus Paradox Production Corp. make repeated reference to United States v. Pueblo of San Ildefonso, 513 F.2d 1383 (Ct.C1.1975) United States v. Gemmill, 535 F.2d 1145 (9th Cir. 1976), and to Uintah and White River Bands of Ute Indians v. United States, 139 Ct.Cl. 1 (1957) and id., 152 F.Supp. 953 (Ct.C1.1957), as being dispositive of the reservation status of the national forest lands. In its reply brief, the Tribe correctly points out that [T]his citation is totally irrelevant to the issues in this case, since even the extinguishment of statutorially recognized titles (which is of greater legal magnitude than aboriginal title), as by the granting of land to homesteaders, does not terminate Indian Reservation status." }, { "docid": "13829901", "title": "", "text": "the Secretary of Agriculture pursuant to the Act of February 1,1905, ch. 288, 33 Stat. 628, and subjected the Forest Service lands to an entirely different regulatory regime. By transferring of reservation status to the status of the Forest Service lands thus for public use and by shifting the administrative authority over them, Congressional intent to remove the lands from the reservation is clearly evidenced. Our holding that Indian jurisdiction is inconsistent with the land’s status as forest reserve land is consonant with recent holdings by the Court of Claims and the Ninth Circuit. Both courts held that the designation of land as a forest reserve is itself effective to extinguish Indian title. United States v. Pueblo of San Ildefonso, 513 F.2d 1383, 1386, 1391-93 (Ct.Cl.); United States v. Gemmill, 535 F.2d 1145 (9th Cir.). The Ninth Circuit went on to find that “any ambiguity about extinguishment that may have remained after the establishment of the forest reserves, has been decisively resolved by congressional payment of compensation to the ... Indians for these lands.” Id. at 1149. The Utes received $1,217,000.00 in compensation. The situation before us is very similar as Congress added to a forest reserve by removing lands from an Indian reservation and later compensating the Indians for the lands. The trial court was correct in finding that the 1,010,000 acres withdrawn pursuant to the July 14, 1905 presidential proclamation were no longer part of the Uintah reservation. The Strawberry River Reclamation The third major part of the 1905 Act authorized the President before the reservation was opened to “set apart and reserve any reservoir site or other lands necessary to conserve and protect the water supply for the Indians or for general agricultural development.” President Roosevelt withheld from disposal 56,000 acres along the Strawberry River for reclamation purposes pursuant to that authority in August 1905. Presidential Proclamation of August 3, 1905, 34 Stat. pt. 3, 3141. Five years later, Congress compensated the Utes for the Strawberry River lands and clearly extinguished any Indian interest in the lands by providing that “[a]ll right, title, and interest of the" } ]

[ { "docid": "22608575", "title": "", "text": "involved the stop and subsequent patdown search of a person, we were careful to note that “[w]e need not develop at length in this case, however, the limitations which the Fourth Amendment places upon a protective search and seizure for weapons. These limitations will have to be developed in the concrete factual circumstances of individual cases. ” Id., at 29. Contrary to Long’s view, Terry need not be read as restricting the preventative search to the person of the detained suspect. In two cases in which we applied Terry to specific factual situations, we recognized that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers. In Pennsylvania v. Mimms, 434 U. S. 106 (1977), we held that police may order persons out of an automobile during a stop for a traffic violation, and may frisk those persons for weapons if there is a reasonable belief that they are armed and dangerous. Our decision rested in part on the “inordinate risk confronting an officer as he approaches a person seated in an automobile.” Id., at 110. In Adams v. Williams, 407 U. S. 143 (1972), we held that the police, acting on an informant’s tip, may reach into the passenger compartment of an automobile to remove a gun from a driver’s waistband even where the gun was not apparent to police from outside the car and the police knew of its existence only because of the tip. Again, our decision rested in part on our view of the danger presented to police officers in “traffic stop” and automobile situations. “The opinion in Terry authorized the frisking of an overcoat worn by defendant because that was the issue presented by the facts. One could reasonably conclude that a different result would not have been constitutionally required if the overcoat had been carried, folded over the forearm, rather than worn. The constitutional principles stated in Terry would still control.” 413 Mich., at 475-476, 320 N. W. 2d, at 871 (footnote omitted). Finally, we have also expressly recognized that suspects may injure police officers and others by virtue of" } ]

[ { "docid": "2450483", "title": "", "text": "a “pat-down” for weapons of a passenger in a lawfully stopped vehicle. In Terry, the frisk was justified by a reasonable, articulable suspicion that criminal activity was afoot and by the risk of danger that arises from officer action divorced from the safeguards of a full-blown arrest. Similarly, in Long, the search of the area within the passenger compartment of the automobile was supported by specific and articulable facts that the suspect was dangerous and might have immediate access to weapons. On the other hand, in Mimms the Court announced a bright-line rule permitting police officers effecting a traffic stop to order, as a matter of course, the driver to step out of the automobile with no more suspicion than that justifying the traffic stop itself. And in Wilson, the Court extended Mimms to passengers. All of these cases recognize generally that every traffic stop poses a meaningful level of risk to the safety of police officers. In Mimms and Long, for instance, the Court alluded to a 1963 study demonstrating that “approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile.” Mimms, 434 U.S. at 110, 98 S.Ct. 330; Long, 463 U.S. at 1048 n. 13, 103 S.Ct. 3469. And in Wilson, the Court referred to 1994 statistics demonstrating that in that year 5,762 officers were assaulted and 11 were killed during traffic pursuits and stops. See Wilson, 117 S.Ct. at 885. In Terry, the Court noted more generally that the “easy availability of firearms ... is relevant to an assessment of the need for some form of self-protective search power.” Terry, 392 U.S. at 24 n. 21, 88 S.Ct. 1868. Similarly, in Stanfield, we observed that the substantial risk to police officers during traffic stops is “too plain” for argument. 109 F.3d at 981. “[T]he risk these officers face when they approach a vehicle with heavily tinted windows is, quite simply, intolerable.” Id. at 982. We noted that at least 28 states responded to this risk by passing statutes seeking to reduce the risk to police officers by prohibiting tinted windows." }, { "docid": "22851459", "title": "", "text": "(1996) (holding that “the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred” regardless of any subjective motivations). Nonetheless, we hold that the facts as alleged by the plaintiffs constitute a Fourth Amendment violation based on the officers’ conduct after the initial stop, and therefore reverse and remand the claim to the district court. A concern for officer safety permits a variety of police responses in differing circumstances, including ordering a driver and passenger out of a car during a traffic stop, see Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (driver) and Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) (passenger), and conducting pat-down searches “upon reasonable suspicion that they may be armed and dangerous.” Knowles v. Iowa, 525 U.S. 113, 118, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) (emphasis added) (citing Terry, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889). A lawful stop does not necessarily carry with it the authority to conduct a pat-down search. Terry, 392 U.S. at 27, 88 S.Ct. 1868 (“Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual ... ”). To justify a pat-down search, the officers must articulate specific facts that would warrant “a reasonably prudent man in the circumstances .... in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27, 88 S.Ct. 1868. The officers’ justification for the search consists of only this statement in their appellate filing: “They patted down Weaver for their safety during the. encounter. The pat-down search to preserve the status quo was appropriate, given the nature of the investigation, the potential for harm to the officers investigating at close range, and the criminal act [towing the" }, { "docid": "8098356", "title": "", "text": "order to get out of the car in this case was based on the officers’ judgment that the situation would be safer and less likely to escalate beyond their control if the questioning was conducted outside of the car. Such a judgment is not unreasonable. In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the Supreme Court specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. “According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile. Bristow, Police Officer Shootings — A Tactical Evaluation, 54 J.Crim.L.C. & P.S. 93 (1963).” Adams v. Williams, 407 U.S. 143, 148 n. 3 [92 S.Ct. 1921, 1924 n. 3, 32 L.Ed.2d 612] (1972). We are aware that not all these assaults occur when issuing traffic summons, but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. United States v. Robinson, 414 U.S. 218, 234 [94 S.Ct. 467, 476, 38 L.Ed.2d 427] (1973). Id. at 110, 98 S.Ct. at 333. But see id. at 118, 98 S.Ct. at 337 (Stevens, J., dissenting) (noting the unreliability of survey used as basis for proposition stated in majority opinion). Since an officer’s view of a suspect seated in a car is always partially obscured, the officer is at a disadvantage both when he approaches the occupant and when he tries to question him through a car window. He cannot scrutinize the suspect’s movements as he can a pedestrian’s; there is consequently a greater opportunity for the suspect in a car to pull out a hidden weapon. Moreover, the frisk component of a Terry “stop and frisk” is not available to protect the policeman if a suspect is sitting inside a closed car and the officer is on the outside. Finally, the possibility always exists that a driver may try to start his car and drive off, thereby endangering the officer and members of the public. In this case, although the" }, { "docid": "21117542", "title": "", "text": "-, 117 S.Ct. at 885. WMle acknowledging that the passengers’ liberty interests implicated by orders to exit vehicles might be stronger than those of the drivers, the Court nonetheless readily concluded that these interests likewise are “minimal” and necessarily must yield to the state’s interest in officer safety, finding persuasive Maryland’s common-sense argument that every occupant in a vehicle “increases the possible sources of harm to the officer.” Id. A. 1. Notwithstanding that the Court “generally eschew[s] bright-line rules in the Fourth Amendment context,” id. at-n. 1, 117 S.Ct. at 885 n. 1; see also Robinette, — U.S. at -, 117 S.Ct. at 421, we believe that the Court’s decisions in Mimms and Wilson in particular would support a holding that whenever, during a lawful traffic stop, officers are required to approach a vehicle with windows so heavily tinted that they are unable to view the interior of the stopped vehicle, they may, when it appears in their experienced judgment prudent to do so, open at least one of the vehicle’s doors and, without crossing the plane of the vehicle, visually inspect its interior in order to ascertain whether the driver is armed, whether he has access to weapons, or whether there are other occupants of the vehicle who might pose a danger to the officers. Indeed, it seems to us that a contrary holding would not only be irreconcilable with, but arguably undermine altogether, the easelaw from the Supreme Court that was developed specifically for the purpose of protecting officer safety during what are, in today’s society, frighteningly perilous encounters. Even where the interiors of vehicles are fully visible, “roadside encounters between police and suspects are especially hazardous,” Long, 463 U.S. at 1049, 103 S.Ct. at 3481, with as many as “30% of police shootings occur[ing] when a police officer approached] a suspect seated in an automobile,” Mimms, 434 U.S. at 110, 98 S.Ct. at 333; see also Adams v. Williams, 407 U.S. 143, 148 n. 3, 92 S.Ct. 1921, 1924 n. 3, 32 L.Ed.2d 612 (1972). In fact, as the Court noted recently in Wilson, in 1994 alone," }, { "docid": "1760429", "title": "", "text": "v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that a police officer may conduct a reasonable search for weapons for his or her own protection without violating the Fourth Amendment “where he[/she] has reason to believe that he[/she] is dealing with an armed and dangerous individual.” Id. at 27, 88 S.Ct. 1868. However, a pat-down for weapons can occur only where the police officer is “able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct. 1868. The test is “whether a reasonably prudent [person] in the circumstances would be warranted in the belief that hislTher] safety or that of others was in danger.” Id. at 27, 88 S.Ct. 1868. There is testimony here that Kithcart was searched after the car he was riding in ran a red light. “A traffic stop is lawful under the Fourth Amendment where a police officer observes a violation of state traffic regulations.” United States v. Moorefield, 111 F.3d 10, 12 (3d Cir.1997)(citing Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977)). In order to minimize the dangers police officers routinely face, the reasoning of Terry has been extended to traffic stops. Id. at 13 (citations omitted). In Moorefield we held that, under Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997), police can conduct a limited weapons “pat-down” of a passenger of a lawfully stopped car so long as the constitutional requirements of Tory are met. Moorefield, at 13-14. In Moore-field, the police officer “pointed to ‘specific and articulable facts which, taken together with rational inferences from those facts,’ reasonably warranted the pat-down.” Id. at 14. We also stressed that “an officer need not be absolutely certain that the individual is armed” so long as the officer’s concern was objectively reasonable. Id. Thus, a police officer can, as a matter of course, order the driver, Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), and the passengers," }, { "docid": "2450478", "title": "", "text": "always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ ” Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). “Reasonableness” is determined by weighing the “public interest” against the “individual’s right to personal security free from arbitrary interference by law officers.” Id. at 109, 98 S.Ct. 330 (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)); see also Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 885, 137 L.Ed.2d 41 (1997). The public interest, as the parties agree, includes the substantial public concern for the safety of police officers lawfully carrying out the law enforcement effort. Thus, the issue presented requires us to determine whether Officer Ferstl’s safety concerns were legitimate and, if they were, whether under the circumstances they outweighed Sa-kyi’s right to be free from the intrusion of a “pat-down.” The foundation for our analysis was established in Terry v. Ohio where the Supreme Court held that police officers confronting citizens on the street in objectively suspicious circumstances may, without probable cause, conduct a limited search — a “frisk” or “pat-down” — -for weapons when a reasonably prudent officer in similar circumstances would believe that his safety or the safety of others was in danger. 392 U.S. at 27, 88 S.Ct. 1868. To determine whether an officer could reasonably hold such a belief, the Court stated that “due weight must be given ... to the specific reasonable inferences which [the officer] is entitled to draw from the facts in light of his experience.” Id. The Court recognized the strong public interest in officer safety, stating that “it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Id. at 23, 88 S.Ct. 1868. Applying Terry principles to routine traffic stops, the Court in Mimms held that a police officer, “as a matter of course,” may order the driver of a lawfully stopped car out of" }, { "docid": "21694814", "title": "", "text": "117 S.Ct. 882; see also Mimms, 434 U.S. at 111, 98 S.Ct. 330 (holding that the intrusion on the driver’s liberty is minimal where “the only question is whether [the driver] shall spend that period sitting in the ... car or standing alongside it”). We think the difference in ordering the passenger back inside the car is immaterial. When Williams attempted to exit the vehicle, the automobile had already been lawfully stopped with him inside. The officer’s order to get back into the automobile merely maintained the status quo by returning the passenger to his original position as an occupant inside the car. Just as in Wilson and Mimms, little is changed upon compliance with the officer’s order except the position of the passenger. At most, such an order to re-enter a car that the passenger voluntarily entered, and just exited, cannot be characterized by anything but a “mere inconvenience,” Terry, 392 U.S. at 17, 88 S.Ct. 1868, that we think falls far short of a “serious intrusion upon the sanctity of the person,” or even a “petty indignity.” Mimms, 434 U.S. at 111, 98 S.Ct. 330; see also Moorefield, 111 F.3d at 13 (“imposition of having to remain in the car with raised hands” was “minimal”). Furthermore, the public concern for officer safety here is as weighty as it was in Wilson. We have no reason to believe, nor has Williams provided any evidence to the contrary, that traffic stops today present safer encounters for police officers than they did less than ten years ago when Wilson was decided. We are convinced that in this case the continuing importance of, and the public interest in, promoting officer safety outweighs the marginal intrusion on personal liberty. Rogala, 161 F.3d at 53; Moorefield, 111 F.3d at 13; see also Mimms, 434 U.S. at 111, 98 S.Ct. 330 (“What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.”). Williams argues that where a significant portion of the danger inheres in the fact that occupants can “make unobserved movements” inside the vehicle, Mimms, 434 U.S." }, { "docid": "140447", "title": "", "text": "may conduct a pat-down search to protect officer safety, regardless of whether there is also probable cause to arrest. See Terry, 392 U.S. at 27, 32-33, 88 S.Ct. at 1883, 1885-86 (Harlan, J., concurring), 34-35 (White, J., concurring). This ease illustrates a recurring protective search issue: when police have probable cause to arrest one member of a group, is it reasonable for them to conduct pat-down searches of other members of the group to protect officer safety? Although some circuits have held that all companions of an arrestee may automatically be frisked for weapons, see United States v. Berryhill, 445 F.2d 1189, 1193 (9th Cir.1971), we rejected that rule in Flett, applying instead the Fourth Amendment’s traditional, totality-of-the-circumstances analysis. It is relevant that one member of a group has been arrested, but that does not automatically give rise to a reasonable suspicion that the others may be armed and dangerous. See 806 F.2d at 827. In this ease, Officer Hawley stopped an auto for a traffic violation at 2:00 a.m. on a relatively deserted highway. Hawley was outnumbered by the auto’s occupants. When he recognized one passenger as a possible drug trafficker, he obtained consent to search the ear. The Supreme Court has frequently noted the inherent danger traffic stops pose to police officers and the consequent likelihood that minimally intrusive weapons searches will be reasonable. See Michigan v. Long, 463 U.S. 1032, 1047-50, 103 S.Ct. 3469, 3479-81, 77 L.Ed.2d 1201 (1983); Foley v. Connelie, 435 U.S. 291, 298, 98 S.Ct. 1067, 1072, 55 L.Ed.2d 287 (1978); Pennsylvania v. Mimms, 434 U.S. 106, 109-10, 98 S.Ct. 330, 332-33, 54 L.Ed.2d 331 (1977); Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972). Thus, Officer Hawley could have reasonably conducted pat-down searches of Walker and Menard as they exited the auto, so that Hawley could complete his search without fear that its occupants would prove to be armed and dangerous should contraband be discovered. See United States v. Douglas, 964 F.2d 738, 741 (8th Cir.1992); United States v. Brown, 913 F.2d 570, 572 (8th Cir.), cert." }, { "docid": "21694815", "title": "", "text": "even a “petty indignity.” Mimms, 434 U.S. at 111, 98 S.Ct. 330; see also Moorefield, 111 F.3d at 13 (“imposition of having to remain in the car with raised hands” was “minimal”). Furthermore, the public concern for officer safety here is as weighty as it was in Wilson. We have no reason to believe, nor has Williams provided any evidence to the contrary, that traffic stops today present safer encounters for police officers than they did less than ten years ago when Wilson was decided. We are convinced that in this case the continuing importance of, and the public interest in, promoting officer safety outweighs the marginal intrusion on personal liberty. Rogala, 161 F.3d at 53; Moorefield, 111 F.3d at 13; see also Mimms, 434 U.S. at 111, 98 S.Ct. 330 (“What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.”). Williams argues that where a significant portion of the danger inheres in the fact that occupants can “make unobserved movements” inside the vehicle, Mimms, 434 U.S. at 110, 98 S.Ct. 330, and that weapons may be concealed and available within the interior of the passenger compartment, Wilson, 519 U.S. at 414, 117 S.Ct. 882, ordering a passenger back into the vehicle makes little sense from the standpoint of officer safety. See, e.g., Wilson v. State, 734 So.2d 1107, 1111 (Fla.Ct.App.1999), review denied, 749 So.2d 504 (Fla.1999), cert. denied, 529 U.S. 1124, 120 S.Ct. 1996, 146 L.Ed.2d 820 (2000) (risk of “passenger access to weapons potentially concealed inside a car[ ] would be increased if passengers were forced back inside the vehicle”) (emphasis in original). That argument, however, fixates on only one rationale for the rule announced in Wilson, and ignores a substantial portion of the Court’s full reasoning. Concluding that an officer may order a passenger out of the car, the Wilson Court enunciated two specific rationales why the rule was justified by the concern for officer safety. First, the Court explained that “[o]utside the car, the passengers will be denied access to any possible weapon that might be concealed in" }, { "docid": "10435206", "title": "", "text": "after the vehicle had already been validly stopped for a traffic infraction. The Court concluded that the additional intrusion “can only be described as de minimis.” Id. at 111, 98 S.Ct. at 333. Later, the Court found additional ways to characterize the intrusion, including “hardly ris[ing] to the level of a ‘petty indignity,’ ” and “a mere inconvenience.” Id. (quoting Terry v. Ohio, 392 U.S. 1, 17, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968)). The Court concluded that the public interest in officer safety prevailed, holding that a police officer as a routine practice may order the driver to step out of a lawfully detained motor vehicle. Ruvalcaba contends that his situation is distinguishable from Mimms because he was a passenger in the vehicle, whereas Mimms was the driver. Ruvalcaba argues that “passengers have done no wrong, violated no laws, and there is no basis to deprive them of their liberty.” While we agree with Ruvalcaba that Mimms does not control the outcome, we believe that the reasoning behind Mimms is equally applicable to passengers in a vehicle as it is to drivers. The primary basis behind the legitimate and weighty governmental interest in Mimms was the danger to police officers when confronting a driver seated in an automobile. See Adams v. Williams, 407 U.S. 143, 148 n. 3, 92 S.Ct. 1921, 1924 n. 3, 32 L.Ed.2d 612 (1972) (“According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile.”); cf. Michigan v. Long, 463 U.S. 1032, 1047, 103 S.Ct. 3469, 3480, 77 L.Ed.2d 1201 (1983) (“investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.”). That danger is equally grave when a police officer confronts passengers; indeed, it may be more dangerous to have the driver outside the vehicle while one or more other passengers are left inside. One or more passengers may be seated in the back seat of a car, or the back of a sport utility vehicle, making it difficult, if not impossible, for the officer to keep a close watch" }, { "docid": "16766232", "title": "", "text": "2407, 168 L.Ed.2d 132 (2007) (quoting Wilson, 519 U.S. at 414, 117 S.Ct. 882); see also Adams, 407 U.S. at 146, 92 S.Ct. 1921. Here, Bullock was lawfully stopped for a suspected moving violation. Under Mimms, the police therefore could order him out of the car. II Second, we consider the propriety of Officer Jackson’s frisk of Bullock. A It initially bears emphasis that, at the time of the frisk, Officer Jackson possessed reasonable suspicion not just of the traffic violations but also that Bullock had stolen the car (a crime often associated with a weapon) because Bullock could not produce registration and could not name the car’s owner. See Tr. of Suppression Hearing, Gov’t Appendix 106 (District Court: “a reasonably prudent police officer would have suspicion that conceivably this car might be stolen”); id. at 90-91, 105; see also United States v. Rowland, 341 F.3d 774, 784 (8th Cir.2003). Terry v. Ohio authorizes a frisk during a stop when an officer “reasonably” would believe that the suspect “may be armed and presently dangerous.” 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); United States v. Holmes, 385 F.3d 786, 790 (D.C.Cir.2004). The purpose of the frisk is to ensure officer safety and the safety of others. Terry, 392 U.S. at 30, 88 S.Ct. 1868; Sibron v. New York, 392 U.S. 40, 65, 88 S.Ct. 1889, 20 L.Ed.2d 917 (protective frisk is designed to uncover “concealed objects which might be used as instruments of assault”). If an officer possesses reasonable suspicion that the detained suspect committed a violent or serious crime — such as murder, robbery, rape, burglary, assault with a weapon, or various drug offenses— the officer by definition is dealing with an individual reasonably suspected of committing a crime that involves or is associated with carrying or using a weapon. In such cases, it logically and necessarily follows that the officer may reasonably conclude the suspect “may be armed and presently dangerous.” Terry, 392 U.S. at 30, 88 S.Ct. 1868. In Terry itself, therefore, the Court upheld the frisk because the suspects’ actions were “consistent with" }, { "docid": "22793234", "title": "", "text": "n. 5. A routine traffic stop, on the other hand,' is a relatively brief encounter and “is more analogous to a so-called ‘Terry stop’ . . . than to a formal arrest.” Berkemer v. McCarty, 468 U. S. 420, 439 (1984). See also Cupp v. Murphy, 412 U. S. 291, 296 (1973) (“Where there is no formal arrest... a person might well be less hostile to the police and less likely to take conspicuous, immediate steps to destroy incriminating evidence”). This is not to say that the concern for officer safety is absent in the ease of a routine traffic stop. It plainly is not. See Mimms, supra, at 110; Wilson, supra, at 413-414. But while the concern for officer safety in this context may justify the “minimal” additional intrusion of ordering a driver and passengers out of the car, it does not by itself justify the often considerably greater intrusion attending a full field-type search. Even without the search authority Iowa urges, officers have other, independent bases to search for weapons and protect themselves from danger. For example, they may order out of a vehicle both the driver, Mimms, swpra, at Ill, and any passengers, Wilson, supra, at 414; perform a “patdown” of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous, Terry v. Ohio, 392 U. S. 1 (1968); conduct a “Terry patdown” of the passenger compartment of a vehicle upon reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon, Michigan v. Long, 463 U. S. 1032, 1049 (1983); and even conduct a full search of the passenger compartment, including any containers therein, pursuant to a custodial arrest, New York v. Belton, 453 U. S. 454, 460 (1981). Nor has Iowa shown the second justification for the authority to search incident to arrest — the need to discover and preserve evidence. Once Knowles was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed was going to be found either on the" }, { "docid": "16766231", "title": "", "text": "the driver out of the car.” We hold only that once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures. 434 U.S. at 110-11 & n. 6, 98 S.Ct. 330 (emphasis added and citation omitted). The bright-line rule of Mimms means that “a police officer may as a matter of course order the driver of a lawfully stopped car to exit his vehicle.” Wilson, 519 U.S. at 410, 117 S.Ct. 882. The Supreme Court later extended the bright-line rule to passengers, holding that “an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.” Id. at 415, 117 S.Ct. 882. As the Supreme Court has explained, the risk of harm to the police when stopping a car “ ‘is minimized if the officers routinely exercise unquestioned command of the situation.’ ” Brendlin v. California, — U.S. -, 127 S.Ct. 2400, 2407, 168 L.Ed.2d 132 (2007) (quoting Wilson, 519 U.S. at 414, 117 S.Ct. 882); see also Adams, 407 U.S. at 146, 92 S.Ct. 1921. Here, Bullock was lawfully stopped for a suspected moving violation. Under Mimms, the police therefore could order him out of the car. II Second, we consider the propriety of Officer Jackson’s frisk of Bullock. A It initially bears emphasis that, at the time of the frisk, Officer Jackson possessed reasonable suspicion not just of the traffic violations but also that Bullock had stolen the car (a crime often associated with a weapon) because Bullock could not produce registration and could not name the car’s owner. See Tr. of Suppression Hearing, Gov’t Appendix 106 (District Court: “a reasonably prudent police officer would have suspicion that conceivably this car might be stolen”); id. at 90-91, 105; see also United States v. Rowland, 341 F.3d 774, 784 (8th Cir.2003). Terry v. Ohio authorizes a frisk during a stop when an officer “reasonably” would believe that the suspect “may be armed and presently dangerous.” 392" }, { "docid": "21117543", "title": "", "text": "the plane of the vehicle, visually inspect its interior in order to ascertain whether the driver is armed, whether he has access to weapons, or whether there are other occupants of the vehicle who might pose a danger to the officers. Indeed, it seems to us that a contrary holding would not only be irreconcilable with, but arguably undermine altogether, the easelaw from the Supreme Court that was developed specifically for the purpose of protecting officer safety during what are, in today’s society, frighteningly perilous encounters. Even where the interiors of vehicles are fully visible, “roadside encounters between police and suspects are especially hazardous,” Long, 463 U.S. at 1049, 103 S.Ct. at 3481, with as many as “30% of police shootings occur[ing] when a police officer approached] a suspect seated in an automobile,” Mimms, 434 U.S. at 110, 98 S.Ct. at 333; see also Adams v. Williams, 407 U.S. 143, 148 n. 3, 92 S.Ct. 1921, 1924 n. 3, 32 L.Ed.2d 612 (1972). In fact, as the Court noted recently in Wilson, in 1994 alone, 5,762 assaults on police officers occurred during the course of traffic pursuits or stops. See Wilson, — U.S. at -, 117 S.Ct. at 885 (citation omitted). Thus, “it [is]’too plain for argument’ ” that the governmental interest in officer safety during traffic stops is substantial. Id. at -, 117 S.Ct. at 885 (quoting Mimms, 434 U.S at 110, 98 S.Ct. at 333). When, during already dangerous traffic stops, officers must approach vehicles whose occupants and interiors are blocked from view by tinted windows, the potential harm to which the officers are exposed increases exponentially, to the point, we believe, of unconscionability. Indeed, we can conceive of almost nothing more dangerous to a law enforcement officer in the context of a traffic stop than approaching an automobile whose passenger compartment is entirely hidden from the officer’s view by darkly tinted windows. As the officer exits his cruiser and proceeds toward the tinted-windowed vehicle, he has no way of knowing whether the vehicle’s driver is fumbling for his driver’s license or reaching for a gun; he does" }, { "docid": "6082274", "title": "", "text": "review of a district court’s suppression ruling is based solely on what the district court knew at the time of that ruling. After having reviewed the transcript we are convinced that no mistake occurred. The officers’ stop was a legal traffic stop. So the next question is whether the officers had probable cause to search the vehicle. Whenever the circumstances of an on-the-street encounter are such that a police officer reasonably believes he may be dealing with someone who is armed and dangerous, the officer is justified in conducting a pat-down search of that individual for weapons for his own protection, and for that of others nearby. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968). When the encounter is between a patrol officer and a motorist, and the officer entertains the same reasonable belief he is dealing with a dangerous person, the officer may search those areas within the passenger compartment over which the motorist may gain immediate control and that may conceal a weapon. Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 3480, 77 L.Ed.2d 1201 (1983). In either case, the officer must possess specific, articulable facts which, in combination with inferences to be drawn from those facts, reasonably warrant the intrusion. Terry, 392 U.S. at 21, 88 S.Ct. at 1880; Long, 463 U.S. at 1049, 103 S.Ct. at 3481. The district court determined that Officer Gonzalez’s suspicions met the Terry/Long standard for conducting a search of Fryer’s automobile. We see nothing in the record to suggest otherwise. The un-controverted facts show that while patrolling a marginally safe neighborhood, in the wee hours of the morning, a veteran police officer observed a traffic violation. After signalling the car to pull over, the officer observed furtive movements between the driver and the passenger, as if they were passing something between them. The circumstances caused him to caution his less experienced partner, and to conduct searches of both the passenger area of the car and its occupants. These are clearly the kind of specific, articulable facts that the standard contemplates and which" }, { "docid": "10435207", "title": "", "text": "passengers in a vehicle as it is to drivers. The primary basis behind the legitimate and weighty governmental interest in Mimms was the danger to police officers when confronting a driver seated in an automobile. See Adams v. Williams, 407 U.S. 143, 148 n. 3, 92 S.Ct. 1921, 1924 n. 3, 32 L.Ed.2d 612 (1972) (“According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile.”); cf. Michigan v. Long, 463 U.S. 1032, 1047, 103 S.Ct. 3469, 3480, 77 L.Ed.2d 1201 (1983) (“investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.”). That danger is equally grave when a police officer confronts passengers; indeed, it may be more dangerous to have the driver outside the vehicle while one or more other passengers are left inside. One or more passengers may be seated in the back seat of a car, or the back of a sport utility vehicle, making it difficult, if not impossible, for the officer to keep a close watch on these passengers. See United States v. Salas, 879 F.2d 530, 535 (9th Cir.), cert. denied, 493 U.S. 979, 110 S.Ct. 507, 107 L.Ed.2d 509 (1989) (“A weapon can be concealed under the seat of a vehicle. It is readily accessible to be used to harm any police officer who approaches an automo-bile_”). Having all occupants step out of the vehicle protects the safety of the officer while the officer is dealing with the driver regarding the traffic violation. We believe that the governmental interest weighs strongly in favor of permitting a police officer to order all occupants out of a vehicle. The intrusion into a passenger’s liberty is minimal. The automobile has been stopped lawfully, and the passenger is, for the time being, going nowhere. As with the driver, “the only question is whether he shall spend that period sitting [in the car] or standing alongside it.” Mimms, 434 U.S. at 111, 98 S.Ct. at 333. The passenger is not asked to expose any more of his person than is already exposed by virtue" }, { "docid": "2450481", "title": "", "text": "suspect is dangerous and ... may gain immediate control of weapons,” the officer may search the areas of the passenger compartment of the automobile where “a weapon may be placed or hidden.” Id. at 1049, 103 S.Ct. 3469 (quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868). The Court based its reasoning in part on the reality that such stops involve an investigation “ ‘at close range’ when the officer remains particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a ‘quick decision as to how to protect himself and others from possible danger....’” Id. at 1052, 103 S.Ct. 3469 (quoting Terry, 392 U.S. at 24, 28, 88 S.Ct. 1868). Thus, in the context of a lawful automobile stop when the officer is presented with an objectively suspicious and potentially dangerous circumstance, the officer may conduct what amounts to a “ ‘frisk’ of an automobile for weapons.” Maryland v. Buie, 494 U.S. 325, 332, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (construing Long in the context of upholding, for safety reasons, a protective sweep of a house where a suspect had been arrested). And finally, in Maryland v. Wilson, the Supreme Court, relying again on the same public interest in police safety, held that police officers making lawful traffic stops could require passengers to step out of the vehicle as a matter of course. See 117 S.Ct. at 886. Explaining its extension of Mimms to passengers, the Court stated that “danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car.” Id. Recently, we applied both Mimms and Wilson to hold that officers approaching a vehicle with heavily tinted windows could open its doors to determine “whether the vehicle is occupied by one or several persons and whether the vehicle’s occupants are armed or have access to weapons.” United States v. Stanfield, 109 F.3d 976, 982 (4th Cir.1997). We must now decide, in light of these authorities, what justification a police officer must have to conduct" }, { "docid": "16766229", "title": "", "text": "23, 88 S.Ct. 1868. And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. “According to one study, ap proximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile.” Adams v. Williams, 407 U.S. 143, 148 n. 3, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). We are aware that not all these assaults occur when issuing traffic summons, but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. United States v. Robinson, 414 U.S. 218, 234, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Indeed, it appears “that a significant percentage of murders of police officers occurs when the officers are making traffic stops.” Id., at 234 n. 5, 94 S.Ct. 467.... Against this important interest we are asked to weigh the intrusion into the driver’s personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order to get out of the car. We think this additional intrusion can only be described as de minimis. The driver is being asked to expose to view very little more of his person than is already exposed. The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver’s seat of his car or standing alongside it. Not only is the insistence of the police on the latter choice not a “serious intrusion upon the sanctity of the person,” but it hardly rises to the level of a “ ‘petty indignity.’ ” Terry v. Ohio, supra, at 17, 88 S.Ct. 1868. What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety. Contrary to the suggestion in the dissent of our Brother Stevens, post, at 122, 98 S.Ct. 330, we do not hold today that “whenever an officer has an occasion to speak with the driver of a vehicle, he may also order" }, { "docid": "16766228", "title": "", "text": "imposed on law enforcement officers.” United States v. Holmes, 385 F.3d 786, 791 (D.C.Cir.2004). Recognizing these dangers, the Supreme Court in Pennsylvania v. Mimms held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.” 434 U.S. 106, 111 n. 6, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). As the Supreme Court has reiterated, Mimms establishes a “bright line” rule. Maryland v. Wilson, 519 U.S. 408, 413 n. 1, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). Because the clarity and force of the bright-line rule set forth in Mimms are sometimes under-appreciated, if not ignored entirely, the decision warrants extensive quotation: We think it too plain for argument that the State’s proffered justification— the safety of the officer — is both legitimate and weighty. “Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.” Terry v. Ohio, supra, at 23, 88 S.Ct. 1868. And we have specifically recognized the inordinate risk confronting an officer as he approaches a person seated in an automobile. “According to one study, ap proximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile.” Adams v. Williams, 407 U.S. 143, 148 n. 3, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). We are aware that not all these assaults occur when issuing traffic summons, but we have before expressly declined to accept the argument that traffic violations necessarily involve less danger to officers than other types of confrontations. United States v. Robinson, 414 U.S. 218, 234, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Indeed, it appears “that a significant percentage of murders of police officers occurs when the officers are making traffic stops.” Id., at 234 n. 5, 94 S.Ct. 467.... Against this important interest we are asked to weigh the intrusion into the driver’s personal liberty occasioned not by the initial stop of the vehicle, which was admittedly justified, but by the order" }, { "docid": "2450484", "title": "", "text": "police shootings occurred when a police officer approached a suspect seated in an automobile.” Mimms, 434 U.S. at 110, 98 S.Ct. 330; Long, 463 U.S. at 1048 n. 13, 103 S.Ct. 3469. And in Wilson, the Court referred to 1994 statistics demonstrating that in that year 5,762 officers were assaulted and 11 were killed during traffic pursuits and stops. See Wilson, 117 S.Ct. at 885. In Terry, the Court noted more generally that the “easy availability of firearms ... is relevant to an assessment of the need for some form of self-protective search power.” Terry, 392 U.S. at 24 n. 21, 88 S.Ct. 1868. Similarly, in Stanfield, we observed that the substantial risk to police officers during traffic stops is “too plain” for argument. 109 F.3d at 981. “[T]he risk these officers face when they approach a vehicle with heavily tinted windows is, quite simply, intolerable.” Id. at 982. We noted that at least 28 states responded to this risk by passing statutes seeking to reduce the risk to police officers by prohibiting tinted windows. Id. Only Mimms and Wilson, however, rely on this generalized risk to justify police action, finding it sufficient justification to order occupants to exit a lawfully stopped vehicle. By contrast, Terry and Long require a specific, articulable suspicion of danger before police officers are entitled to conduct a “pat-down.” Thus, where the intrusion is greater than an order to exit the car, the Court requires eommensurately greater justification. Accordingly, in the case before us, we conclude that we may not rely on a generalized risk to officer safety to justify a routine “pat-down” of all passengers as a matter of course. Because a frisk or “pat down” is substantially more intrusive than an order to exit a vehicle or to open its doors, we conclude that an officer must have justification for a frisk or a “pat-down” beyond the mere justification for the traffic stop. The holdings in Terry and Long permitted frisks only when the officer perceived an appropriate level of suspicion of criminal activity and apprehension of danger, and we conclude that such" } ]

[ { "docid": "7797470", "title": "", "text": "rights with respect to their health conditions. In LaBounty, a case involving the alleged exposure of prison inmates to asbestos, we held that the right at stake was not the narrow right to be free from exposure to asbestos, but a broader “right to be free from deliberate indifference to serious medical needs.” LaBounty, 137 F.3d at 74. We noted that this right had been clearly established as far back as 1976 by Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). See id. We determined that “[g]iven the known dangers of friable asbestos in 1991-92,” a reasonable person would have known that exposure to asbestos could violate the Eighth Amendment. LaBounty, 137 F.3d at 74. Similarly, the medical dangers of ETS were well known to defendants; Sing Sing Policy and Procedure 104 itself states that “the health risks associated with smoking are well-documented.” Given the known dangers of ETS, we conclude that a reasonable person would have understood that exposing an inmate to high levels of ETS could violate the Eighth Amendment. Defendants also argue that even if plaintiffs’ rights were clearly established, it was reasonable for them to believe that they were not violating these rights. We disagree. The facts remain in dispute, but as the district court observed in its first denial of defendants’ summary judgment motion, “[pjlaintiffs’ allegations, if believed, overwhelmingly describe a prison environment permeated with smoke resulting from, inter alia, under-enforcement of inadequate smoking rules, overcrowding of inmates and poor ventilation.” Warren v. Keane, 937 F.Supp. 301, 305 (S.D.N.Y.1996). Until the facts are determined, we are unable to say that any prison official reasonably could have believed that the alleged severe exposure to ETS did not violate the plaintiffs’ Eighth Amendment rights. We intimate no view as to whether plaintiffs will ultimately be able to support both the objective and subjective elements of their claim under Helling. However, at this stage of the litigation defendants are not entitled to qualified immunity from these claims, and plaintiffs may proceed with their action. CONCLUSION The order of the district court is" } ]

[ { "docid": "1054676", "title": "", "text": "by subjecting him, and allowing him to be subjected, to excessive levels of ETS. Pursuant to 28 U.S.C. § 1915A(b)(l), the district court dismissed this claim on the grounds that (a) Talal failed to allege specific facts showing deliberate indifference by the individual defendants, and (b) the penal institutions have non-smoking pods, which, the court reasoned, reflects a no-smoking policy which is inconsistent with deliberate indifference. We review a district court’s dismissal under section 1915A de novo. McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997). Generally, a claim of deliberate indifference presents a mixed question of law and fact, the resolution of which mandates that we compare the defendants’ conduct with the legal standard of deliberate indifference. Williams v. Mehra, 186 F.3d 685, 690 (6th Cir.1999). Mixed questions of law and fact are also reviewed de novo. Id. Because the district court dismissed this case before the defendants were served, the facts are one-sided and, therefore, undisputed. The issue, then, is purely legal — whether Talal’s complaint states a violation of clearly established law. See id “The Eighth Amendment forbids prison officials from ‘unnecessarily and wantonly inflicting pain’ ” on a prisoner by acting with “deliberate indifference” to the prisoner’s serious medical needs. Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir.2004) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). The test for determining deliberate indifference based on exposure to ETS has both objective and subjective components. Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). To satisfy the objective component, a prisoner must show that his medical needs are “sufficiently serious.” Hunt v. Reynolds, 974 F.2d 734, 735 (6th Cir.1992). The exposure to smoke must cause more than “mere discomfort or inconvenience.” Id. at 735. Additionally, the prisoner must demonstrate that the risk is one which society deems “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling, 509 U.S. at 36, 113 S.Ct. 2475. To satisfy the subjective component, a prisoner must show that prison authorities" }, { "docid": "21047411", "title": "", "text": "alleged by Atkinson was established over two decades ago by the Supreme Court in Estelle. See Alvarado, 267 F.3d at 651; Weaver, 45 F.3d at 1256. Atkinson’s amended complaint alleges that he was exposed, with deliberate indifference, to constant smoking in his cell for over seven months and as a result suffered nausea, an inability to eat, headaches, chest pains, difficulty breathing, numbness in his limbs, teary eyes, itching, burning skin, dizziness, a sore throat, coughing and production of sputum. The dissent describes these symptoms as “causing discomfort somewhere between that of hay fever and the common cold” and notes that “millions of people not in prison voluntarily tolerate similar levels of risk every day from second-hand smoke and numerous other sources.” However, unlike individuals who voluntarily expose themselves to ETS, a prisoner cannot simply walk out of his cell whenever he wishes. When a susceptible prisoner is confined to a cell, a small and confined space, with a “constant” smoker for an extended period of time, such symptoms may transform what would otherwise be a passing annoyance into a serious ongoing medical need. Additionally, Atkinson has fulfilled the second prong of Saucier’s test by demonstrating that the constitutional right was clearly established by the Hunt, Weaver and Estelle Courts on-or before his own claim arose in 1998—1999. See Estelle, 429 U.S. at 104, 97 S.Ct. 285 (“We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ ... proscribed by the Eighth Amendment.”); Weaver, 45 F.3d at 1256 (recognizing that severe headaches, dizziness, nausea, vomiting, and breathing difficulties stemming from exposure to ETS constitutes a serious medical need, which requires removal of the prisoner from a smoking environment under the Eighth Amendment); Hunt, 974 F.2d at 735-36 (concluding prisoner could state a present injury claim for ETS exposure); see also Alvarado, 267 F.3d at 651-52 (“[Prisonerj’s complaint stated an Eighth Amendment claim when he alleged that because of the prison officials’ deliberate indifference, he was being exposed to levels of ETS which aggravated his chronic asthma, thereby endangering his existing" }, { "docid": "1054682", "title": "", "text": "the mere existence of non-smoking pods does not insulate a penal institution from Eighth Amendment liability where, as here, a prisoner alleges and demonstrates deliberate indifference to his current medical needs and future health. The district court’s dismissal of this claim was erroneous. C. Retaliation Talal alleges that Defendant Marchen violated his First and Fourteenth Amendment rights by retaliating against him for filing grievances regarding his exposure to smoke. The specific alleged incident of retaliation occurred as Talal was engaged in legal work at a pod table. Marchen directed him to cease his activity because, according to prison policy, the tables were to be used only for games. Talal obeyed the directive but commented upon Mar-chen’s failure to enforce the no-smoking policy. Marchen then ordered him to gather his belongings because she was having him “locked up and moved out of her pod.” She told him that she was tired of hearing him complain about smoke. Ta-lal spent a day in segregation and was subsequently placed in a cell with a “chain smoker.” The district court did not address the retaliation claim in its orders. Because we have no decision to review, we must remand the issue to the district court. III. CONCLUSION The district court did not err in dismissing the MTRC defendants. However, the Court erred in dismissing Talal’s Eighth Amendment claim of deliberate indifference. Therefore, we AFFIRM the order in part, REVERSE in part, and REMAND for further proceedings. Additionally, we GRANT Talal’s request for appointed counsel. Upon remand, the Court shall address the retaliation claim and appoint counsel for Talal. The court shall also direct service of the complaint upon the defendants. . The district court dismissed Talal’s complaint prior to service upon the defendants. Thus, the defendants have not filed a brief. . Cf. Palacio v. Hofbauer, 106 Fed. Appx. 1002, 1005 (6th Cir.2004) (unpublished) (holding that prisoner who substantiated his claim of bronchitis stated a claim under the Eighth Amendment). . See also Wilson v. Hofbauer, 113 Fed. Appx. 651, 653 (6th Cir.2004) (unpublished) (rejecting claim of deliberate indifference where prisoner failed to allege" }, { "docid": "21047412", "title": "", "text": "a passing annoyance into a serious ongoing medical need. Additionally, Atkinson has fulfilled the second prong of Saucier’s test by demonstrating that the constitutional right was clearly established by the Hunt, Weaver and Estelle Courts on-or before his own claim arose in 1998—1999. See Estelle, 429 U.S. at 104, 97 S.Ct. 285 (“We therefore conclude that deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ ... proscribed by the Eighth Amendment.”); Weaver, 45 F.3d at 1256 (recognizing that severe headaches, dizziness, nausea, vomiting, and breathing difficulties stemming from exposure to ETS constitutes a serious medical need, which requires removal of the prisoner from a smoking environment under the Eighth Amendment); Hunt, 974 F.2d at 735-36 (concluding prisoner could state a present injury claim for ETS exposure); see also Alvarado, 267 F.3d at 651-52 (“[Prisonerj’s complaint stated an Eighth Amendment claim when he alleged that because of the prison officials’ deliberate indifference, he was being exposed to levels of ETS which aggravated his chronic asthma, thereby endangering his existing health, a claim recognized as an Eighth Amendment violation twenty-five years ago in Estelle v. Gamble .... ”). Moreover, Dr. Rizzo, an examining physician, has concluded that these symptoms possibly were precipitated by Atkinson’s expo sure to ETS. The District Court found that deliberate indifference to these alleged symptoms constituted a violation of clearly established law, and we agree. Atkinson alleges that when he tried to seek help at the prison infirmary the treating nurse responded that she was unable to transfer him to a cell with a nonsmoking roommate. Similarly, Atkinson has produced evidence that after telling prison officials about his sensitivity to ETS no change was made in housing conditions. This evidence demonstrates deliberate indifference on the part of prison officials. See Farmer, 511 U.S. at 837, 114 S.Ct. 1970 (“[A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety....”). B. The Retaliation Claim Appellee asserts that appellants harassed" }, { "docid": "17422157", "title": "", "text": "conduct in order for its illegality to be ‘clearly established.’ ” Id. at 333; Alvarado, 267 F.3d at 653 (declaring that, after Helling, prison officials were on notice that exposing a nonsmoking inmate with respiratory problems to “an environment in which ambient tobacco smoke is present” could constitute an Eighth Amendment violation). The Court finds that the contours of Plaintiffs Eighth Amendment right’s were sufficiently defined to give an officer reasonable notice regarding unreasonable exposure to ETS. As seen by prior decisions, Helling incorporated unreasonable ETS exposure, both future and present, as constitutional violations. In addition, Hell-ing specifically noted that prison smoking policies can determine whether a court can find deliberate indifference. Here, VDOC’s smoking policy as written disregards the Helling decision in its entirety. Moreover, Defendants failed to seriously consider Plaintiffs concerns, and housed him with a smoker from December 19, 2001, until he was transferred to D.C. authorities. In fact, prison officials claimed that they could charge Plaintiff with disobeying an order and segregate Plaintiff for suggesting that, health wise, he is incapable of being housed with a smoker. Even worse, Defendants alleged that a nonsmoking individual with alleged respiratory problems, who is subjected to sitting in an maximum security enclosed cell for 19 hours a day with a cellmate who smokes a pack of cigars every day, which results in dizziness, headaches, nausea, and stomach cramps, withstands an evaluation under the current standards of decency. The Court cannot adopt Defendants’ faulty reasoning. Accordingly, Defendants’ request for Qualified immunity against Plaintiffs present injury claim is DENIED. Additionally, Nurse Stem did nothing to help Plaintiff with his health problems, because her opinion was that they were not “emergency related.” Her standard of what constitutes a serious medical need is higher than what the Constitution considers unreasonable. As noted above, the Supreme Court established an inmate’s Eighth Amendment right to be free from unnecessary and wanton infliction of pain resulting from an officer’s deliberate indifference to an inmate’s serious medical needs; medical conditions which can include less serious symptoms such as those presented in this case. Estelle, 429 U.S. at" }, { "docid": "1054672", "title": "", "text": "OPINION TARNOW, District Judge. Appellant, Lutfi Shaqf Talal (a.k.a. James Taylor), appeals the district court’s dismissal of his civil rights complaint pursuant to 28 U.S.C. § 1915A(b)(l) for failure to state a claim. The issues on appeal are whether (1) the district court erred in dismissing the Middle Tennessee Reception Center (MTRC) defendants; (2) Talal has stated a viable Eighth Amendment claim based on exposure to high levels of environmental tobacco smoke (ETS or smoke); and (3) Talal’s allegations of retaliation are sufficient to state a claim under the First and Fourteenth Amendments. The Court must also decide whether to grant Talal’s request for appointment of counsel. Upon review of the record and applicable law, we find no error on the part of the district court in dismissing the MTRC defendants. However, we conclude that Talal has alleged facts sufficient to satisfy the components of an Eighth Amendment claim. Therefore, we AFFIRM the district court’s decision regarding the MTRC defendants but REVERSE with regard to the Eighth Amendment claim. Because the district court did not address the retaliation claim, we REMAND that issue for the Court’s consideration. We GRANT Talal’s request for appointed counsel. I. BACKGROUND Talal is an inmate in the Turney Center Industrial Prison (TCIP) in Only, Tennessee. He is allergic to tobacco smoke and is housed in a non-smoking unit. On October 3, 2003, Talal filed a pro se civil rights complaint against the Tennessee Department of Corrections and more than forty individual officials pursuant to 42 U.S.C. § 1983. He alleged that the defendants violated the Eighth Amendment by smoking in the non-smoking inmate housing areas at TCIP and MTRC in Nashville; allowing inmates to smoke in the nonsmoking areas and providing them with tobacco; placing smoking and non-smoking prisoners in the same cells; and permitting smoking in the general areas of the prisons. He also alleged that corrections officer Polly Marchen retaliated against him in violation of the First and Fourteenth Amendments by refusing to enforce the prison’s no-smoking policy and deliberately exposing him to high levels of smoke. On October 10, 2003, the district" }, { "docid": "17422156", "title": "", "text": "nausea, and dizziness. Weaver 45 F.3d at 1256. Although the defendants brought the motion for qualified immunity under Fed.R.Civ.P. 12(b)(6), the court found qualified immunity inappropriate because the inmate’s “claim is one of deliberate indifference to his existing medical needs. Such claims were first recognized by the Supreme Court [in Estelle].” Id. Likewise, the Third Circuit denied a qualified immunity request where the inmate “produced evidence that after telling prison officials about his sensitivity to ETS no change was made in housing conditions ... which demonstrates deliberate indifference on the part of prison officials” Atkinson, 316 F.3d at 269. Similarly, the Second Circuit upheld a district court’s denial of qualified immunity at the summary judgment stage where prison policies did not regulate smoking in, inter alia, private residences, and inmates suffered “from sinus problems, headaches, dizziness, ... and nausea as a result of exposure to ETS,” Keane II, 196 F.3d at 331-333. The court applied Helling to establish the contour of a prisoner’s right, finding that “a court need not have passed on the identical conduct in order for its illegality to be ‘clearly established.’ ” Id. at 333; Alvarado, 267 F.3d at 653 (declaring that, after Helling, prison officials were on notice that exposing a nonsmoking inmate with respiratory problems to “an environment in which ambient tobacco smoke is present” could constitute an Eighth Amendment violation). The Court finds that the contours of Plaintiffs Eighth Amendment right’s were sufficiently defined to give an officer reasonable notice regarding unreasonable exposure to ETS. As seen by prior decisions, Helling incorporated unreasonable ETS exposure, both future and present, as constitutional violations. In addition, Hell-ing specifically noted that prison smoking policies can determine whether a court can find deliberate indifference. Here, VDOC’s smoking policy as written disregards the Helling decision in its entirety. Moreover, Defendants failed to seriously consider Plaintiffs concerns, and housed him with a smoker from December 19, 2001, until he was transferred to D.C. authorities. In fact, prison officials claimed that they could charge Plaintiff with disobeying an order and segregate Plaintiff for suggesting that, health wise, he is incapable" }, { "docid": "1054681", "title": "", "text": "recommended that “[n]on-smoking policies should be followed.” Although the minutes do not reference Talal specifically, the hearing ostensibly concerns a grievance which Talal filed. There is evidence that Talal filed several grievances regarding ETS. Apparently, none of the grievances yielded any affirmative responses from corrections officials. On June 24, 2003, Talal requested a cell change, citing “non smoking celly” as the reason for the request. The officer who reviewed the request denied it on the ground that Talal was entitled to only one cell change each year. The situation here is in stark contrast to that in Scott, 139 F.3d 940. There, prison officials made good-faith efforts to enforce the prison’s no-smoking policy. Violators of the policy were punished and grievances relating to ETS were acted upon. The allegations made by Talal reflect not only knowledge but “obduracy and wantonness” on the part of corrections officials. See Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (defining the Eighth Amendment’s “cruel and unusual” prohibition). Contrary to the district court’s opinion, the mere existence of non-smoking pods does not insulate a penal institution from Eighth Amendment liability where, as here, a prisoner alleges and demonstrates deliberate indifference to his current medical needs and future health. The district court’s dismissal of this claim was erroneous. C. Retaliation Talal alleges that Defendant Marchen violated his First and Fourteenth Amendment rights by retaliating against him for filing grievances regarding his exposure to smoke. The specific alleged incident of retaliation occurred as Talal was engaged in legal work at a pod table. Marchen directed him to cease his activity because, according to prison policy, the tables were to be used only for games. Talal obeyed the directive but commented upon Mar-chen’s failure to enforce the no-smoking policy. Marchen then ordered him to gather his belongings because she was having him “locked up and moved out of her pod.” She told him that she was tired of hearing him complain about smoke. Ta-lal spent a day in segregation and was subsequently placed in a cell with a “chain smoker.” The district" }, { "docid": "17422155", "title": "", "text": "where an inmate’s medical condition is exacerbated by the exposure to ETS, and prison officials fail to provide medical care. See Hunt v. Reynolds, 974 F.2d 734, 735-736 (6th Cir.1992)(finding that, even before Helling, exposing a prisoner with a pre-exist-ing medical condition to ETS in amounts which represent a serious health threat constitutes an Eighth Amendment violation). As noted by the Seventh Circuit: “[m]edical consequences of tobacco smoke do not differ from other medical problems. Prisoners ... who can attribute their serious medical conditions to smoke, are entitled to appropriate medical treatment, which may include removal from places where smoke hovers.” Steading v. Thompson, 941 F.2d 498, 500 (7th Cir.1991). Several circuit opinions also provide guidance as to the contours of an inmate’s right. In Weaver, the Eighth Circuit addressed an inmate’s allegations that prison officials allowed the plaintiff to be housed with a “heavy smoker,” and were repeatedly unresponsive to any of the prison er’s requests and protests, which included complaints that he suffered from “various medical problems,” including but not limited to, headaches, nausea, and dizziness. Weaver 45 F.3d at 1256. Although the defendants brought the motion for qualified immunity under Fed.R.Civ.P. 12(b)(6), the court found qualified immunity inappropriate because the inmate’s “claim is one of deliberate indifference to his existing medical needs. Such claims were first recognized by the Supreme Court [in Estelle].” Id. Likewise, the Third Circuit denied a qualified immunity request where the inmate “produced evidence that after telling prison officials about his sensitivity to ETS no change was made in housing conditions ... which demonstrates deliberate indifference on the part of prison officials” Atkinson, 316 F.3d at 269. Similarly, the Second Circuit upheld a district court’s denial of qualified immunity at the summary judgment stage where prison policies did not regulate smoking in, inter alia, private residences, and inmates suffered “from sinus problems, headaches, dizziness, ... and nausea as a result of exposure to ETS,” Keane II, 196 F.3d at 331-333. The court applied Helling to establish the contour of a prisoner’s right, finding that “a court need not have passed on the identical" }, { "docid": "1054677", "title": "", "text": "See id “The Eighth Amendment forbids prison officials from ‘unnecessarily and wantonly inflicting pain’ ” on a prisoner by acting with “deliberate indifference” to the prisoner’s serious medical needs. Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir.2004) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). The test for determining deliberate indifference based on exposure to ETS has both objective and subjective components. Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). To satisfy the objective component, a prisoner must show that his medical needs are “sufficiently serious.” Hunt v. Reynolds, 974 F.2d 734, 735 (6th Cir.1992). The exposure to smoke must cause more than “mere discomfort or inconvenience.” Id. at 735. Additionally, the prisoner must demonstrate that the risk is one which society deems “so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk.” Helling, 509 U.S. at 36, 113 S.Ct. 2475. To satisfy the subjective component, a prisoner must show that prison authorities knew of, and manifested deliberate indifference to, his serious medical needs. Id. at 32, 113 S.Ct. 2475. 1. The Objective Component In Hunt, 974 F.2d at 736, we acknowledged that forcing a non-smoking prisoner with a serious medical need to share a cell with a prisoner who smokes violates the Eighth Amendment’s objective component. Among the cases we cited in Hunt was Steading v. Thompson, 941 F.2d 498 (7th Cir.1991), wherein the Seventh Circuit explained: Prisoners allergic to the components of tobacco smoke, or who can attribute their serious medical conditions to smoke, are entitled to appropriate medical treatment, which may include removal from places where smoke hovers. Id. at 500. Here, Talal alleges that he has been subjected to excessive levels of smoke at the hands of both staff and other inmates and that TCIP’s ventilation system merely re-circulates smoke-filled air. Additionally, he has substantiated that he suffers from ETS allergy. The record contains medical documentation evidencing this fact and establishing that smoke causes Talal sinus problems and dizziness. On several occasions, medical staff" }, { "docid": "1054679", "title": "", "text": "recommended that Ta-lal have a non-smoking cell partner. On at least one occasion, medical staff recommended that he be placed in a non-smoking unit. Based upon these facts, we conclude that Talal has alleged that he has a medical condition which is sufficiently serious to satisfy the objective component of the Helling test. 2. The Subjective Component “The question under the Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial ‘risk of serious damage to his future health.’ ” Farmer v. Brennan, 511 U.S. 825, 843, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Helling, 509 U.S. at 35, 113 S.Ct. 2475). To prevail under the subjective component, a prisoner must allege specific incidents of deliberate indifference by prison officials. See Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir.1986) (“Some factual basis for [§ 1983] claims must be set forth in the pleadings.”); Scott v. Dist. of Columbia, 139 F.3d 940, 942-44 (D.C.Cir.1998) (explaining that mere imperfect enforcement of a no-smoking policy does not rise to the level of deliberate indifference when prison officials make good faith efforts to enforce the policy). In the instant case, the complaint and attached exhibits indicate that prison officials were aware of Talal’s allergy. There are several medical records and at least one “limited activity notice” which reference either his allergy or his need for a non-smoking cell partner. Additionally, Talal alleges that officers at TCIP smoked and allowed prisoners to smoke in the nonsmoking units. On February 24, 2003, for example, Defendant Moore smoked and allowed inmates to smoke in the non-smoking unit of TCIP. Talal’s complaint is replete with specific examples of such disregard. Attached to Talal’s complaint is a copy of the minutes of a May 20, 2003, hearing of the Grievance Board Office. The drafter of the minutes noted: The grievance speaks for itself. [A female officer, unidentified] is still smoking in the pod. When she smokes in the pod, it means that everyone else is able to smoke in the pod too. Pods are nonsmoking areas. The Board" }, { "docid": "21047410", "title": "", "text": "a claim recognized as an Eighth Amendment violation twenty-five years ago in Estelle v. Gamble....”); Hunt v. Reynolds, 974 F.2d 734, 735-36 (6th Cir.1992). The Hunt Court determined that: “Medical consequences of tobacco smoke do not differ from other medical problems. Prisoners allergic to the components of tobacco smoke, or who can at tribute their serious medical conditions to smoke, are entitled to appropriate medical treatment, which may include removal from places where smoke hovers” .... Thus we will adhere to the position, adopted by every circuit to address the issue, that the Eighth Amendment’s objective component is violated by forcing a prisoner with a serious medical need for a smoke free environment to share his cell with an inmate who smokes. Id., quoting Steading v. Thompson, 941 F.2d 498, 500 (7th Cir.1991). We cannot conclude that appellants are entitled to qualified immunity. Atkinson has fulfilled Sauciers first prong for denying qualified immunity by alleging a violation of a clearly established constitutional right. As both the Weaver and Alvarado Courts point out the Constitutional right alleged by Atkinson was established over two decades ago by the Supreme Court in Estelle. See Alvarado, 267 F.3d at 651; Weaver, 45 F.3d at 1256. Atkinson’s amended complaint alleges that he was exposed, with deliberate indifference, to constant smoking in his cell for over seven months and as a result suffered nausea, an inability to eat, headaches, chest pains, difficulty breathing, numbness in his limbs, teary eyes, itching, burning skin, dizziness, a sore throat, coughing and production of sputum. The dissent describes these symptoms as “causing discomfort somewhere between that of hay fever and the common cold” and notes that “millions of people not in prison voluntarily tolerate similar levels of risk every day from second-hand smoke and numerous other sources.” However, unlike individuals who voluntarily expose themselves to ETS, a prisoner cannot simply walk out of his cell whenever he wishes. When a susceptible prisoner is confined to a cell, a small and confined space, with a “constant” smoker for an extended period of time, such symptoms may transform what would otherwise be" }, { "docid": "1054678", "title": "", "text": "knew of, and manifested deliberate indifference to, his serious medical needs. Id. at 32, 113 S.Ct. 2475. 1. The Objective Component In Hunt, 974 F.2d at 736, we acknowledged that forcing a non-smoking prisoner with a serious medical need to share a cell with a prisoner who smokes violates the Eighth Amendment’s objective component. Among the cases we cited in Hunt was Steading v. Thompson, 941 F.2d 498 (7th Cir.1991), wherein the Seventh Circuit explained: Prisoners allergic to the components of tobacco smoke, or who can attribute their serious medical conditions to smoke, are entitled to appropriate medical treatment, which may include removal from places where smoke hovers. Id. at 500. Here, Talal alleges that he has been subjected to excessive levels of smoke at the hands of both staff and other inmates and that TCIP’s ventilation system merely re-circulates smoke-filled air. Additionally, he has substantiated that he suffers from ETS allergy. The record contains medical documentation evidencing this fact and establishing that smoke causes Talal sinus problems and dizziness. On several occasions, medical staff recommended that Ta-lal have a non-smoking cell partner. On at least one occasion, medical staff recommended that he be placed in a non-smoking unit. Based upon these facts, we conclude that Talal has alleged that he has a medical condition which is sufficiently serious to satisfy the objective component of the Helling test. 2. The Subjective Component “The question under the Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial ‘risk of serious damage to his future health.’ ” Farmer v. Brennan, 511 U.S. 825, 843, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (quoting Helling, 509 U.S. at 35, 113 S.Ct. 2475). To prevail under the subjective component, a prisoner must allege specific incidents of deliberate indifference by prison officials. See Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir.1986) (“Some factual basis for [§ 1983] claims must be set forth in the pleadings.”); Scott v. Dist. of Columbia, 139 F.3d 940, 942-44 (D.C.Cir.1998) (explaining that mere imperfect enforcement of a no-smoking policy does not" }, { "docid": "1054680", "title": "", "text": "rise to the level of deliberate indifference when prison officials make good faith efforts to enforce the policy). In the instant case, the complaint and attached exhibits indicate that prison officials were aware of Talal’s allergy. There are several medical records and at least one “limited activity notice” which reference either his allergy or his need for a non-smoking cell partner. Additionally, Talal alleges that officers at TCIP smoked and allowed prisoners to smoke in the nonsmoking units. On February 24, 2003, for example, Defendant Moore smoked and allowed inmates to smoke in the non-smoking unit of TCIP. Talal’s complaint is replete with specific examples of such disregard. Attached to Talal’s complaint is a copy of the minutes of a May 20, 2003, hearing of the Grievance Board Office. The drafter of the minutes noted: The grievance speaks for itself. [A female officer, unidentified] is still smoking in the pod. When she smokes in the pod, it means that everyone else is able to smoke in the pod too. Pods are nonsmoking areas. The Board recommended that “[n]on-smoking policies should be followed.” Although the minutes do not reference Talal specifically, the hearing ostensibly concerns a grievance which Talal filed. There is evidence that Talal filed several grievances regarding ETS. Apparently, none of the grievances yielded any affirmative responses from corrections officials. On June 24, 2003, Talal requested a cell change, citing “non smoking celly” as the reason for the request. The officer who reviewed the request denied it on the ground that Talal was entitled to only one cell change each year. The situation here is in stark contrast to that in Scott, 139 F.3d 940. There, prison officials made good-faith efforts to enforce the prison’s no-smoking policy. Violators of the policy were punished and grievances relating to ETS were acted upon. The allegations made by Talal reflect not only knowledge but “obduracy and wantonness” on the part of corrections officials. See Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (defining the Eighth Amendment’s “cruel and unusual” prohibition). Contrary to the district court’s opinion," }, { "docid": "21047408", "title": "", "text": "standards of decency. See id. at 103, 97 S.Ct. 285. Specifically, the Supreme Court stated: “In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Id. at 106, 97 S.Ct. 285. Atkinson has alleged a serious medical need to which appellants were deliberately indifferent. As this Court explained in Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326 (3d Cir.1987), “The standard enunciated in Estelle is two-pronged: ‘[i]t requires deliberate indifference on the part of the prison officials and it requires the prisoner’s medical needs to be serious.’ ” Id. at 346, quoting West v. Keve, 571 F.2d 158, 162 (3d Cir.1978). Although this Court has defined a medical need as serious if it has been diagnosed by a physician as requiring treatment, we also have recognized: “Estelle makes clear that if ‘unnecessary and wanton infliction of pain,’ ... results as a consequence of denial or delay in the provision of adequate medical care, the medical need is of the serious nature contemplated by the Eighth Amendment.” Id. at 347. Needless suffering resulting from a denial of simple medical care, which does not serve any penological purpose, is inconsistent with contemporary standards of decency and thus violates the Eighth Amendment. See id. In Weaver, the Court of Appeals for the Eighth Circuit specifically recognized that severe headaches, dizziness, nausea, vomiting, and breathing difficulties stemming from exposure to ETS constituted a serious medical need, which required removal of the prisoner from a smoking environment under the Eighth Amendment. Id. at 1254. Similarly, other Courts of Appeals have recognized that an illness arising from an inmate’s exposure to ETS can constitute a serious medical condition. See, e.g., Alvarado, 267 F.3d at 651 (“[Prisoner's complaint stated an Eighth Amendment claim when he alleged that because of the prison officials’ deliberate indiffer ence, he was being exposed to levels to ETS which aggravated his chronic asthma, thereby endangering his existing health," }, { "docid": "740770", "title": "", "text": "a cane or a lower berth are consistent with their being willfully indifferent to his suffering. An affidavit attesting the adequacy of their response to his requests for treatment might show that there was no triable issue, but the defendants jumped the gun by moving to dismiss the complaint before any discovery. With respect to the plaintiffs claim that at one prison he “was housed in a unit with 48 Smoke Cell[s] and 2 Non-Smoke and a day room full of smoke, [and] that [he] could not escape the tobacco smoke” and that the wardens of three other prisons where he was confined refused to create nonsmoking units or otherwise limit his exposure to smoke, the district court said — nothing. Now it is by no means certain that the plaintiff has a meritorious claim. A prison is not required to provide a completely smoke-free environment, except for prisoners who have asthma or some other serious respiratory condition that even a low level of ambient smoke would aggravate. Alvarado v. Litscher, 267 F.3d 648, 653 (7th Cir.2001); Talal v. White, 403 F.3d 423, 427 (6th Cir.2005); Weaver v. Clarke, 45 F.3d 1253, 1256 (8th Cir.1995); Hunt v. Reynolds, 974 F.2d 734, 736 (6th Cir.1992). A normal prisoner must prove that he “is being exposed to unreasonably high levels of ETS [environmental tobacco smoke].” Helling v. McKinney, 509 U.S. 25, 35, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993) (emphasis added). Helling does not say what level of smoke would be “unreasonably high,” but notes that the plaintiff had a cellmate who smoked five packs a day. Id. at 28, 113 S.Ct. 2475; see also Steading v. Thompson, 941 F.2d 498, 500 (7th Cir.1991); Atkinson v. Taylor, 316 F.3d 257, 268 (3d Cir.2003). But although a prisoner who complains that cigarette smoking amounts to punishment because it is endangering his health must therefore show that his health is indeed endangered, Henderson v. Sheahan, 196 F.3d 839, 846, 852 (7th Cir.1999); Oliver v. Been, 77 F.3d 156, 160 (7th Cir.1996), there are other modes of inflicting cruel and unusual punishment besides ones that" }, { "docid": "740773", "title": "", "text": "annoyance than to oppression, see, e.g., Tesch v. County of Green Lake, 157 F.3d 465, 476 (7th Cir.1998); Lunsford v. Bennett, 17 F.3d 1574, 1582 (7th Cir.1994), is impossible to determine from the complaint. The judge should have directed the plaintiff to explain his claim in greater detail. See Pratt v. Tarr, 464 F.3d 730, 733 (7th Cir.2006); Alston v. Parker, 363 F.3d 229, 234 (3d Cir.2004). Also unclear from the complaint is whether the plaintiff is charging the defendants with deliberate indifference to his welfare in their failing to respond to his concerns about tobacco smoke. For if not — if they were merely careless in failing to correct the problem — then they cannot be thought to have been punishing him, and so his claim, founded of course on the Eighth Amendment, would fail. Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Scarver v. Litscher, 434 F.3d 972, 975 (7th Cir.2006); Talal v. White, supra, 403 F.3d at 427-28; Atkinson v. Taylor, supra, 316 F.3d at 269. But bearing in mind that he had no lawyer, we find in the complaint enough intimations of deliberate indifference to.bar dismissal at this stage. The complaint alleges one warden’s “deliberate intent” to deny the plaintiff a smoke-free cell despite his “mental anguish and concern for future harm”; that “Captain Dusian ... deliberately violated the plaintiffs 8th Amendment by not giving the plaintiff his non-smoke cell for 48 days.... [T]he plaintiff suffered with cellmates that were heavy smokers”; and that another warden violated the plaintiffs rights by “not having a non-smoke unit, that the plaintiff has been subject to heavy smokers since his arrival ... and still has not been put in a non-smoke cell, that [the warden is] deliberately violating the plaintiffs rights.” In a separate part of the complaint, the plaintiff alleges that the warden restricted visits from the plaintiffs wife and friend “out of abuse of power which stems from an incident in 1995 between the plaintiff and [the warden].” The incident is not specified. The allegation is unclear, to say the least, but" }, { "docid": "17422152", "title": "", "text": "mild headaches, difficulty breathing, eye irritation, runny nose, dizziness and occasional stomach cramping. In Estelle, the Supreme Court laid down the framework to analyze present harms inflicted upon an inmate which could create.unconstitutional prison conditions. Specifically, “[i]n order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference [by prison officials] to serious medical needs.” Estelle, 429 U.S. at 106, 97 S.Ct. 285. Proof of deliberate indifference requires “more than mere negligence but less than malice. This is appropriate because the States’ responsibility to provide inmates with medical care or decent living conditions ordinarily does not conflict with competing administrative concerns.” Williams v. Benjamin, 77 F.3d 756, 761 (4th Cir.1996) (internal quotes and citations omitted). In applying this test, courts have found that, “[e]ven in less serious cases, where the prisoner does not experience severe torment or a lingering death, the infliction of unnecessary suffering is inconsistent with standards of decency.” Atkinson v. Taylor, 316 F.3d 257, 266 (3d Cir.2003). For example, the Eighth Circuit held that ETS exposure which resulted in severe headaches, nausea, dizziness, and breath ing difficulties constituted a-serious medical need, and failure to remove an inmate from the environment which caused these symptoms violated the Eighth Amendment. See Weaver v. Clarke, 45 F.3d 1253, 1254 (8th Cir.1995). Similarly, the Third Circuit found that the involuntary housing of a prison inmate with a continuous-smoking cellmate, which results in, inter alia, breathing difficulties, headaches, coughing, and teary eyes, constitutes an Eighth Amendment violation for present injury harms. Atkinson, 316 F.3d at 267-268; see also Alvarado v. Litscher, 267 F.3d 648, 653 (7th Cir.2001)(finding potential Eighth Amendment claim where inmate alleges ETS exacerbated his chronic asthma). Viewing the record most favorably for Plaintiff, his allegations state a cognizable claim under the Eighth Amendment. De’Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir.2003); Williams, 77 F.3d at 765. The facts show that Defendants knew of Plaintiffs complaints regarding ETS exposure, as well as his alleged ailments resulting from exposure, and did nothing to alleviate the problems. Accordingly, “[w]e agree with [Plaintiff] that" }, { "docid": "21047402", "title": "", "text": "free from harmful levels of ETS was clearly established in 1993); see also Weaver v. Clarke, 45 F.3d 1253, 1256 (8th Cir.1995) (affirming District Court’s denial of a Rule 12(b)(6) motion to dismiss based on qualified immunity where a prisoner alleged severe headaches, dizziness, nausea, vomiting, and breathing difficulties from rooming with “heavy smoker”); but see Mills v. Clark, No. 99-6334, 2000 WL 1250781, at *4 (4th Cir. Sept.5, 2000) (unpublished opinion) (reversing District Court’s denial of qualified immunity on summary judgment for prison officials because it was not clearly established level of ETS in dormitories posed any unreasonable risk of future harm). In a case identical in facts and procedural posture to the present one, the' Court of Appeals for the Second Circuit held that a District Court correctly denied prison officials’ summary judgment motion based on qualified immunity where prisoners claimed to be suffering from sinus problems, headaches, dizziness, nausea, shortness of breath, chest pains and asthma from cellmates’ smoking in Sing Sing prison. Warren, 196 F.3d at 333. The Warren Court held that after Helling “it was clearly established that prison officials could violate the Eighth Amendment through deliberate indifference to an inmate’s exposure to levels of ETS that posed an unreasonable risk of future harm to the inmate’s health.” Id. Moreover, the Warren Court concluded that it would be unreasonable for prison officials to believe that they were not violating the prisoners’ Eighth Amendment rights where the District Court determined that “[p]laintiffs’ allegations, if believed, overwhelmingly describe a prison environment permeated with smoke resulting from, inter alia, under-enforcement of inadequate smoking rules, overcrowding of inmates, and poor ventilation.” Id. In the present case, without weighing the underlying evidence with respect to Atkinson’s claim, we conclude that appellants are not entitled to qualified immunity on the ETS claim of future harm. As the Warren Court recognized, the Helling decision established the constitutional right required by the first prong of the Saucier test. Warren, 196 F.3d at 333; see also Helling, 509 U.S. at 35, 113 S.Ct. 2475. Atkinson invokes the constitutional right claimed by the Helling prisoner:" }, { "docid": "21047403", "title": "", "text": "that after Helling “it was clearly established that prison officials could violate the Eighth Amendment through deliberate indifference to an inmate’s exposure to levels of ETS that posed an unreasonable risk of future harm to the inmate’s health.” Id. Moreover, the Warren Court concluded that it would be unreasonable for prison officials to believe that they were not violating the prisoners’ Eighth Amendment rights where the District Court determined that “[p]laintiffs’ allegations, if believed, overwhelmingly describe a prison environment permeated with smoke resulting from, inter alia, under-enforcement of inadequate smoking rules, overcrowding of inmates, and poor ventilation.” Id. In the present case, without weighing the underlying evidence with respect to Atkinson’s claim, we conclude that appellants are not entitled to qualified immunity on the ETS claim of future harm. As the Warren Court recognized, the Helling decision established the constitutional right required by the first prong of the Saucier test. Warren, 196 F.3d at 333; see also Helling, 509 U.S. at 35, 113 S.Ct. 2475. Atkinson invokes the constitutional right claimed by the Helling prisoner: alleging that he was unwillingly exposed to levels of ETS that pose an unreasonable risk of future harm. Similarly, Atkinson has satisfied the second prong of the Saucier test. The right recognized by the Helling decision is “clearly established” so that a reasonable prison official would know when he is violating that right. See, e.g., Alvarado, 267 F.3d at 653 (“Given the decision in Helling, the right of a prisoner to not be subjected to a serious risk of his future health resulting from ETS was clearly established in 1998-99.”); Warren, 196 F.3d at 333 (“We hold that after Helling, it was clearly established that prison officials could violate the Eighth Amendment through deliberate indifference to an inmate’s exposure to levels of ETS that posed an unreasonable risk of future harm to the inmate’s health.”). The facts of Helling are similar to the facts presented by the appellee. In Helling a prisoner was housed with a five-packs-per-day smoker and complained of “certain health problems.” Id. at 28, 113 S.Ct. 2475. Here, appellee Atkinson was housed" } ]

[ { "docid": "4757545", "title": "", "text": "and the estate would never have received any proceeds from the sale of this asset. As a result, they assert that the plain language of 11 U.S.C. § 503(b)(1), along with basic principles of equity and fairness, support their application for allowance of a priority claim. The trustee acknowledges that the partners’ payments represent “actual, necessary costs and expenses of preserving the estate.” (Stipulation 117). Accord, e.g., In re Gamma Fishing Co., 70 B.R. 949 (Bankr.S.D.Cal.1987) (insurance coverage categorized an administrative expense). Nonetheless, he argues that the partners’ failure to comply with 11 U.S.C. § 364(b) deprives them of any administrative claim. 11 U.S.C. § 364(b) states: (b) The court, after notice and a hearing, may authorize the trustee to obtain unsecured credit or to incur unsecured debt other than under subsection (a) of this section, allowable under section 503(b)(1) of this title as an administrative expense. Thus, one who extends unsecured credit to a debtor, postpetition, may have a valid claim for recovery on a priority basis. See, e.g., In re Hartley, 39 B.R. 273 (Bankr.N. D.Ohio 1984). This subsection, though, requires that a postpetition loan to the debtor be preceded by bankruptcy court approval, after notice, and an opportunity for a hearing, to parties in interest, when the extension of credit is not in the ordinary course of the debtor’s business. See In re John Deskins Pic Pac, Inc., 59 B.R. 809 (Bankr.W.D.Va.1986). As no notice was given to creditors or bankruptcy court approval obtained in connection with the payments made by these general partners, the trustee contends that no priority under § 503(b)(1) may be allowed. Accord, e.g., Matter of London, Inc., 70 B.R. 63 (Bankr. E.D.Wisc.1987); In re Glover, Inc., 43 B.R. 322 (Bankr.D.N.M.1984); Matter of Alafia Land Dev. Corp., 40 B.R. 1 (Bankr.M.D. Fla.1984). Although not clearly expressed, the partners here offer three alternative responses to the trustee’s argument. First, they contend that the loan was made in the ordinary course of the debtor’s business and so 11 U.S.C. § 364(a) rather than § 364(b) applies. Section 364(a) permits the extension of credit in the" } ]

[ { "docid": "18715882", "title": "", "text": "MEMORANDUM DECISION ROBERT D. MARTIN, Bankruptcy Judge. The debtor, Patch Graphics, filed a petition for relief under chapter 11 of the Bankruptcy Code on July 15, 1982. A 'plan was confirmed on October 25, 1983. On May 11, 1984, the movant in this proceeding, B.I.W. Credit Union, extended a loan of $31,000.00 to the debtor for the purchase of a “Varityper Comp/Edit 5810 Phototypesetter Image previewer” along with various accessories. The equipment was the subject of a security agreement in favor of B.I.W. and was used by Patch Press, Inc., a related corporation in the operation of its business under a chapter 11 plan. On March 22,1985, the debtor’s case was converted to a chapter 7. On June 17, 1985, after a hearing in this court B.I.W.’s security interest in the equipment was found to have not been properly perfected. That decision was affirmed by the district court. On August 30, 1985, B.I.W. filed an application for allowance of administrative expense in the amount of the balance due on the loan pursuant to 11 U.S.C. § 503(b)(3)(D). B.I.W. alleges that its extension of credit in this mattér made a “substantial contribution to the debtor’s reorganization plan.” A hearing on B.I.W.’s claim was held on September 9, 1985. There was insufficient evidence adduced at that hearing to show that the equipment purchased with the proceeds of B.I.W.’s loan was necessary to this debtor’s chapter 11 case. I have been unable to find any cases which explicitly state that a large item of capital expenditure may not be treated as an administrative expense. However, the tenor of the cases suggests that items supplied to the estate must be essential for the preservation of the estate. A court must consider two main factors in deciding whether to allow an administrative expense. First the expense in question must be shown to have been “actual and necessary.” Second, the expense must not have been incurred primarily in the interest of the claimant, and must in fact have benefit-ted the estate and creditors as a whole. The principal of allowing administrative expenses in bankruptcy cases has" }, { "docid": "3837667", "title": "", "text": "the factors delineated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). The fee applicant bears the burden of proving the entitlement to an award of fees and expenses. Norman, 836 F.2d at 1303; see also In re The Greenwich Showboat Ltd. Partnership, 117 B.R. 54, 60 (Bankr.D.Conn.1990). Under § 506(b) the debtor may be required to pay the attorney’s fees of an oversecured creditor to the extent (1) they are reasonable, (2) they are necessary to protect the oversecured creditor’s interests and (3) they are provided for “... under the agreement under which such claim arose.” 11 U.S.C. § 506(b). There is no dispute that claimant’s agreements provide for payment of its attorney’s fees and expenses. The application fails to note, with perhaps two exceptions, any novel or difficult legal issues. The only two issues which could possibly be construed as novel or difficult relate to (1) debtor’s discovery requests which involved claimant’s internal “trouble-loan” criteria, and (2) the appropriate loan interest rate for plan confirmation. Debtor has objected to this application on the general grounds that the services rendered and the expenses incurred are excessive, duplicative, and were not reasonably necessary to protect claimant's interests. The court will first consider whether applicant’s services were generally necessary to protect claimant’s interests and debtor’s objections thereto. 1. Failure to File Ballot. The debtor moved to have claimant, an impaired non-accepting oversecured creditor, deemed to have accepted its plan for failure to cast a ballot timely. While debtor could have simply ignored claimant’s failure to vote, it chose not to do so. Claimant was therefore entitled to, and did, successfully defend itself against the motion. The court finds and concludes that services to defend debt- or’s motion were necessary to protect claimant’s position against the debtor’s attack. 2. Discovery Disputes. In preparation for the plan confirmation hearing, debtor sought discovery of claimant’s internal, “trouble-loan” criteria. Claimant objected to debtor’s discovery on the grounds of trade secret and “confidentiality”. The fee application contains numerous hours for research, drafting written responses, preparation for hearings, preparation of witnesses, and defense of" }, { "docid": "23116473", "title": "", "text": "Agreement”), and a certain Security Agreement between Grant and Morgan Guaranty, as agent, dated as of September 16, 1974 (the “Initial Security Agreement”); and (2) that the aggregate sum of $90,300,000, net of interest, included as part of the Bank Claims, represented loans and advances made to Grant as a debtor-in-possession (the “DIP Loans”), which were entitled to priority in payment as costs and expenses of administration of the aborted Chapter XI case in accordance with an order of this Court, dated October 2, 1975, authorizing and approving such loans (the “DIP Order”). In response to the Bank Claimants’ assertions, the Trustee had interposed defenses asserting, inter alia, that (a) the Bank Claims should be subordinated to the extent deemed appropriate by the Court on the grounds that the Bank Claimants controlled and dominated the business, affairs and conduct of Grant, to the detriment of persons having interests in the business affairs and properties of the Bankrupt; (b) the claimed liens and security interests may have resulted from fraudulent conveyances or preferential transfers voidable under the Bankruptcy Act;- and (c) the DIP Loans constituted no more than the release of monies to the debtor-in-possession which were improperly set off against the accounts of the debtor and as such did not give rise to any enforceable claim against assets of the bankrupt estate. The Trustee had also interposed several counterclaims against the Bank Claimants. In consideration of the allowance of their claims in the minimum amount of $650,000,-000, the Bank Claimants have released as against the bankrupt estate and the Trustee (a) the right to assert claims of liens and security interests together with interest with respect to such claims; (b) claims for interest or other charges in respect of the DIP Loans; and (c) any claim to priority status in respect of the DIP Loans. The Bank Settlement Agreement also provided that the Trustee would retain and reserve a fund in the amount of $35,000,000 for the partial satisfaction of substantially all allowed claims of general unsecured, unsubor-dinated creditors of the bankrupt estate (“Participating Creditors”). Based upon the financial condition" }, { "docid": "18715883", "title": "", "text": "§ 503(b)(3)(D). B.I.W. alleges that its extension of credit in this mattér made a “substantial contribution to the debtor’s reorganization plan.” A hearing on B.I.W.’s claim was held on September 9, 1985. There was insufficient evidence adduced at that hearing to show that the equipment purchased with the proceeds of B.I.W.’s loan was necessary to this debtor’s chapter 11 case. I have been unable to find any cases which explicitly state that a large item of capital expenditure may not be treated as an administrative expense. However, the tenor of the cases suggests that items supplied to the estate must be essential for the preservation of the estate. A court must consider two main factors in deciding whether to allow an administrative expense. First the expense in question must be shown to have been “actual and necessary.” Second, the expense must not have been incurred primarily in the interest of the claimant, and must in fact have benefit-ted the estate and creditors as a whole. The principal of allowing administrative expenses in bankruptcy cases has a long history dating back to the Bankruptcy Act of 1867. See 3 Collier on Bankruptcy ¶ 503.03 at 503-10 et seq. (15th ed. 1985). Section 503(b)(1)(A) is drawn from section 64 of the Bankruptcy Act, former 11 U.S.C. § 104, which provided in relevant part that “the costs and expenses of administration, including the actual and necessary costs and expenses of preserving the estate subsequent to filing the petition” are entitled to first priority. In Re Prime, Inc., 37 B.R. 897, 898 (Bankr.W.D.Mo.1984) {quoting former 11 U.S.C. § 104). The Prime opinion cites a leading Supreme Court case for the proposition that “the words preserving the estate include the larger objective, common to arrangements, of operating the debtor’s business with a view to rehabilitating [it].” Id. quoting Reading Company v. Brown, 391 U.S. 471, 475, 88 S.Ct. 1759, 1762, 20 L.Ed.2d 751 (1968). The costs and expenses of preserving an estate are not restricted to the categories specified in section 503 but include other necessary costs and expenses incurred in running a business during" }, { "docid": "19664315", "title": "", "text": "College and General Revenue Corporation for violating the discharge injunction. A separate Order will be entered in accordance with Bankruptcy Rule 9021. . Debtor also originally named Windham Professionals as a defendant in this matter for allegedly attempting to collect the Debt in violation of the discharge injunction. On December 11, 2006, Debtor and Windham Professionals entered into an agreed stipulation and, on December 12, the Court approved the agreed stipulation and Windham was dismissed as a defendant. . Under § 523(a)(8), certain student loans are nondischargeable unless repayment of the loan would impose an undue hardship on the debtor or her dependents. The burden of establishing undue hardship, by a preponderance of the evidence, is on the debtor. Andrews v. South Dakota Student Loan Assistance Corp. (In re Andrews), 661 F.2d 702, 704 (8th Cir.1981); Ford v. Student Loan Guarantee Found. of Arkansas (In re Ford), 269 B.R. 673, 675 (8th Cir. BAP 2001). . Section 524(a)(2) states: (a) A discharge in a case under this title- (2) operates as an injunction against the commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived. 11 U.S.C. § 524(a)(2). . In this case, the parties stipulated that punitive damages are not appropriate and should not be awarded. . Black's Law Dictionary 936 (6th ed.1990) defines \"loan” as: A lending. Delivery by one party to and receipt by another party of sum of money upon agreement, express or implied, to repay it with or without interest ... Anything furnished for temporary use to a person at his request, on condition that it shall be returned, or its equivalent in kind, with or without compensation for its use.... \"Loan” includes: (1) the creation of debt by the lender's payment of or agreement to pay money to the debtor or to a third party for the account of the debtor; (2) the creation of debt by a credit to an account with the lender upon which" }, { "docid": "7296937", "title": "", "text": "extent customer property and SIPC advancements are insufficient to satisfy customer claims, the customer is entitled to participate in the general estate as an unsecured creditor. 15 U.S.C. § 78fff-2(c). The trustee denied customer status to claimants because he determined that claimants had loaned funds to debtor and lenders are not “customers” under SIPA. Claimants counter that the transactions were not loans and that they fit within the “customer” definition. Claimants have the burden of showing that they are entitled to customer status. SEC v. Packer, Wilbur & Co., 498 F.2d 978 (2nd Cir.1974). THE DEPOSIT ACCOUNT TRANSACTION Claimants do not dispute the Trustee’s assertion that lenders are not customers under SIPA rather claimants assert that the deposit account transactions were not loans. The trustee relies upon In re Grand Union Co., 219 F. 353 (2nd Cir.1914) appeal dismissed, Hamilton Invest. Co. v. Ernst, 238 U.S. 647, 35 S.Ct. 938, 59 L.Ed. 1504 (1915) where the Second Circuit defined a loan as: A loan of money is a contract by which one delivers a sum of money to another and the latter agrees to return at a future time a sum equivalent to that which he borrows. In order to constitute a loan there must be a contract whereby, in substance one party transfers to the other a sum of money which that other agrees to repay absolutely, together with such additional sums as may be agreed upon for its use. If such be the intent of the parties, the transactions will be considered a loan without regard to its form. Id. at 356, 357. To determine whether the deposit account transactions were loans, the Court must analyze the facts surrounding the transaction. Calcasieu-Marine Nat. Bank v. American Employers’ Insurance, 533 F.2d 290 (5th Cir.1976), cert. denied, Louisiana Bank & Trust Co. v. Employers Liability Assur. Corp., 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1989). The deposit account transactions are consistent with a loan transaction in many respects. Claimants were to receive the principal given to debtor after a specified term. Claimants were also to receive interest on" }, { "docid": "19664316", "title": "", "text": "commencement or continuation of an action, the employment of process, or an act, to collect, recover or offset any such debt as a personal liability of the debtor, whether or not discharge of such debt is waived. 11 U.S.C. § 524(a)(2). . In this case, the parties stipulated that punitive damages are not appropriate and should not be awarded. . Black's Law Dictionary 936 (6th ed.1990) defines \"loan” as: A lending. Delivery by one party to and receipt by another party of sum of money upon agreement, express or implied, to repay it with or without interest ... Anything furnished for temporary use to a person at his request, on condition that it shall be returned, or its equivalent in kind, with or without compensation for its use.... \"Loan” includes: (1) the creation of debt by the lender's payment of or agreement to pay money to the debtor or to a third party for the account of the debtor; (2) the creation of debt by a credit to an account with the lender upon which the debtor is entitled to draw immediately; (3) the creation of debt pursuant to a lender credit card or similar arrangement; and (4) the forbearance of debt arising from a loan. The Court notes the definition in fact includes a \"creation of debt by a credit to an account” which implies actual funds do not change hands. . A loan of money is a contract by which one delivers a sum of money to another and the latter agrees to return at a future time a sum equivalent to that which he borrows. “In order to constitute a loan there must be a contract whereby, in substance one party transfers to the other a sum of money which that other agrees to repay absolutely, together with such additional sums as may be agreed upon for its use. If such be the intent of the parties, the transaction will be considered a loan without regard to its form.” In re Grand Union, 219 F. 353, 356 (2nd Cir.1914). . The Renshaw court paraphrased the \"classic” definition" }, { "docid": "7508827", "title": "", "text": "the bankruptcy court, Debtor’s counsel sought a payment out of RFI’s secured collateral under the authority of 11 U.S.C. § 506(c). Section 506(c) provides that the “trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.” The payment of these “reasonable and necessary” expenses out of the secured property of a creditor is known as a surcharge. RFI did not concede that Debtor’s counsel had provided any measurable benefit to its secured collateral. Nevertheless, it entered into an agreement allowing Debtor’s counsel to collect a $50,000 surcharge from its secured property. The surcharge agreement also provided that “RFI’s secured and unsecured claims shall be irrevocably allowed and no debtor, administrative claimant or party in interest may: ... (5) seek to surcharge any of RFI’s collateral pursuant to 11 U.S.C. § 506(c).” In effect, RFI attempted to buy “closure” by agreeing to a $50,000 surcharge in exchange for assurance that there would be no further challenges to collection of its secured debt. Calstar objected to the Settlement Agreement on two grounds. First, Calstar itself sought to surcharge RFI’s secured property as repayment for the benefit provided by Calstar’s $150,000 loan to Debtor in May 1998. Calstar argued that the immunizing language of the Settlement Agreement improperly foreclosed Calstar’s right to seek a surcharge under 11 U.S.C. § 506(c). In addition, Calstar argued that because its loan to Debtor was made pursuant to 11 U.S.C. § 364(c)(1), it should collect ahead of Debtor’s counsel. Therefore, the surcharge agreement between RFI and Debtor, whereby Debtor’s counsel would collect the $50,000 payment, violated Calstar’s rights as a “superpriority” creditor. The bankruptcy court approved the surcharge/settlement agreement in its entirety. The BAP, reversing the bankruptcy court, held that the lower court abused its discretion when it approved the immunizing language of the settlement agreement without first determining whether RFI benefitted from the actions of other claimants. In addition, the BAP held that the bankruptcy court erred in permitting the distribution" }, { "docid": "8319766", "title": "", "text": "subject property acquired post-petition by a debtor in possession to a non-consensual, pre-petition lien. Thus, to the extent that the Internal Revenue Service holds a secured claim against the debtor, the value of its security must be determined as of the commencement of the debt- or’s Chapter 11 case, and to the extent that their claim exceeds the value of the collateral as of the date of the filing, it is an unsecured claim, which may nonetheless be entitled to priority under 11 U.S.C. § 507(a)(7). 3. Request for Allowance and Payment of Administrative Expenses, nunc pro tunc, of Blueville Bank of Grafton The Blueville Bank of Grafton has sought an order from this Court allowing it a Chapter 11 administrative expense claim in the amount of $595,634.07 for funds it loaned to the debtor after the filing of its petition for relief on June 13, 1986. The Bank’s counsel concedes that court authorization for the financing the Bank provided for the debtor was obtained only in one instance, for a $17,000.00 loan for which the Court granted the Bank a security interest in certain of the debtor’s accounts receivable. All other funds loaned to the debtor by the Bank post-petition were made without prior authorization from the Court. The Bank’s counsel contends that all funds it lent to the debtor after the filing of the petition constituted unsecured credit granted in the ordinary course of the debt- or’s business, and that accordingly, prior approval was unnecessary pursuant to the terms of 11 U.S.C. § 364(a). This section allows the trustee or debtor in possession “to obtain unsecured credit and incur unsecured debt in the ordinary course of business allowable under section 503(b)(1) of this title as an administrative expense.” Bank’s counsel points to the testimony of the principals of the debtor to show that these loans were used to pay payroll, taxes, and other ordinary day-to-day expenses of the debtor, to cover the debtor’s overdrafts for checks written to pay its ordinary expenses, and to purchase necessary equipment. Even viewing this argument in the light most favorable to the" }, { "docid": "7296938", "title": "", "text": "of money to another and the latter agrees to return at a future time a sum equivalent to that which he borrows. In order to constitute a loan there must be a contract whereby, in substance one party transfers to the other a sum of money which that other agrees to repay absolutely, together with such additional sums as may be agreed upon for its use. If such be the intent of the parties, the transactions will be considered a loan without regard to its form. Id. at 356, 357. To determine whether the deposit account transactions were loans, the Court must analyze the facts surrounding the transaction. Calcasieu-Marine Nat. Bank v. American Employers’ Insurance, 533 F.2d 290 (5th Cir.1976), cert. denied, Louisiana Bank & Trust Co. v. Employers Liability Assur. Corp., 429 U.S. 922, 97 S.Ct. 319, 50 L.Ed.2d 289 (1989). The deposit account transactions are consistent with a loan transaction in many respects. Claimants were to receive the principal given to debtor after a specified term. Claimants were also to receive interest on their principal. However, claimants were subject to a penalty for early withdrawal which is not consistent with making a loan. In addition, the Court finds that claimants did not intend to loan money to debtor through their participation in the deposit account. While the deposit account transaction is not entirely consistent with loaning money, it is consistent with purchasing CDs. Had debtor purchased CDs for claimants they would have received the return of their principal at the end of a specified term, and the investment would have earned interest. The trustee makes much of claimants’ testimony that if they had failed to receive interest as required they would first look to debtor for payment. The Court finds that this is equally consistent with making a loan or with debtor acting as claimants’ agent in purchasing CDs. In either case it is logical to look to one’s principal or agent in the first instance to receive payment. In addition, imposing a penalty for early withdrawal is consistent with purchasing certificates of deposit. It is not unusual" }, { "docid": "7508841", "title": "", "text": "a surcharge from RFI. Consequently, the immunizing language of the settlement agreement did not alter the legal rights of Calstar and was properly approved by the bankruptcy court. The BAP decision disapproving the settlement agreement is reversed. In addition, 11 U.S.C. § 506(c) authorizes the payment of the proceeds from a surcharge directly to the party who provided the quantifiable benefit to the secured collateral. The BAP’s order directing these proceeds to be distributed according to the priority schedule of 11 U.S.C. § 507 is also reversed. REVERSED and REMANDED. . 11 U.S.C. § 364 provides in pertinent part: (c) If the trustee is unable to obtain unsecured credit allowable under section 503(b)(1) of this title as an administrative expense, the court, after notice and a hearing, may authorize the obtaining of credit or the incurring of debt— (1) with priority over any or all administrative expenses of the kind specified in section 503(b) or 507(b) of this title. . 11 U.S.C. § 506(c) provides: The trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim. . Compensation for professionals is an administrative expense as defined in 11 U.S.C. § 503(b)(2). Calstar’s loan was made “with priority over any or all administrative expenses of the kind specified in section 503(b) or 507(b) of this title.” 11 U.S.C. § 364(c)(1). . The fact that RFI consented to a surcharge in favor of Debtor’s counsel supports a finding that the surcharge was properly distributed. William Collier, Collier on Bankruptcy ¶ 506.05[6] (15th Ed. Revised 2001) (\"If the holder of a secured claim expressly consents to the payment of a specific administrative claim from its collateral, then the secured creditor's consent may be enforceable to ensure payment of the claim of the administrative claimant from the collateral.”)." }, { "docid": "19876465", "title": "", "text": "provisions of Code § 364 concerning obtaining credit.”); 1 Collier Bankruptcy Man ual ¶ 364.01, at 1 (3d ed. 1995) (“Section 364 now governs all obtaining of credit and incurring of debt by the estate, whether by the trustee ... or by the debtor in posses-sion_”). Section 364 provides certain incentives that a trustee or debtor in possession may offer, with court approval, to induce potential lenders to undertake the risks involved in providing post-petition financing to a bankruptcy estate. Sun Runner, 945 F.2d at 1092. “These incentives include granting the lender [when necessary under statutorily defined circumstances] an administrative expense priority under § 364(b), a ‘super-priority’ claim under § 364(c)(1), or a lien on unencumbered estate assets under § 364(c)(2) or (3), on account of the post-petition credit extended.” Id. at 1092-93 (emphasis in original). Furthermore, section 364(d) provides that, under appropriate circumstances and after notice and a hearing, the court may authorize the obtaining of credit secured by a lien on encumbered property that is senior or equal to any existing lien on the property. 11 U.S.C. § 364(d). See also In re Cardinal Indus., Inc., 146 B.R. 720, 732 (Bankr.S.D.Ohio 1992) (citing Sun Runner with approval). Tully further argues that a lender’s agreement to lend money to one entity does not indicate that the lender would be willing or should be forced to lend money to a successor entity with different management, objectives, and resources. Although this argument might be compelling if we were dealing with a pre-petition loan, the Loan Commitment is a post-petition loan that explicitly provides as a “condition precedent” that it was subject to approval of the bankruptcy court under 11 U.S.C. § 364, and the bankruptcy court specifically authorized the debt- or in possession to obtain post-petition financing from Tully pursuant to section 364(d). Therefore, the Trustee stands in the debtor’s shoes and has all the rights, duties, and powers of the debtor in possession. Furthermore, from a practical standpoint, if we accepted Tully’s argument that the Trustee cannot enforce a post-petition loan agreement executed by the debtor in possession, the bankruptcy" }, { "docid": "18896283", "title": "", "text": "91 B.R. 673, 682-84 (Bankr.E.D.Pa.1988); In re Celona, 90 B.R. 104, 109 (Bankr.E.D.Pa.1988), aff'd sub nom. Celona v. Equitable National Bank, 98 B.R. 705 (E.D.Pa.1989); and In re Lewis, 80 B.R. 39, 40-41 (Bankr.E.D.Pa.1987). The Claimants are therefore incorrect when they assert that the presumption of the validity of their Claims arising from Bankruptcy Rule 3001(f) remained intact after the completion of the hearing. See Celona, supra, 90 B.R. at 109. Since the Trustee’s credible expert was the only witness at the hearing, no better than the fifth (both parties appear and present evidence), and arguably the fourth (only the objector appears and presents evidence), of the scenarios set forth in Lewis, id. at 41, were presented. The Accountant testified that the Claimants had no basis for asserting administrative or secured status for their claims and reaffirmed that each was entitled to an unsecured claim for the amounts which he calculated that the Debtor had misappropriated from each of them. In the absence of any evidence to the contrary, there is no basis to question the indisputably competent and independent conclusions of the Accountant. We therefore shall allow the Claimants only amounts consistent with the Accountant’s testimony. D. THE CLAIMS ARE NOT ENTITLED TO ADMINISTRATIVE STATUS BY REASON OF SUBROGATION NOR ON THE GROUND THAT THE CLAIMANTS MADE PAYMENTS TO THE ACCOUNTANT FOR SERVICES WHICH WERE NECESSARY TO PRESERVE THE DEBTOR’S ESTATE The Claimants contend that two types of expenditures should be accorded administrative status: (1) Reimbursement for their pro rata share of the payments for compensation advanced by each of them to the Accountant for assembling the Debtor’s records; and (2) Additional costs incurred by Union and Cartaret to retrieve certain documents from the Accountant. We start from the premises that the focus of 11 U.S.C. § 503(b)(1)(A), which the creditors implicitly invoke as the basis for their contention that certain aspects of their claims are entitled to administrative status, “is upon the necessity of the expenses to the preservation of the debtor’s estate” (all but last emphasis in original), and that § 503(b)(1)(A) must be read “narrowly.” In" }, { "docid": "10919826", "title": "", "text": "Bankruptcy Code. Section 510(c) supra. C EQUITABLE REFORMATION Pinetree, in its complaint, also asserts that the loan documents should be reformed to change them from debt instruments to agreements evidencing equity interests. This argument was essentially abandoned by Pinetree at trial and therefore will be given only a brief discussion. Under both New Mexico and Ohio law, a claimant must prove mutual mistake of both parties or a unilateral mistake coupled with fraud or inequitable conduct resulting in the written agreement not evidencing the true intention of the parties. Buck v. Mountain States Investment Corporation, 76 N.M. 261, 414 P.2d 491 (N.M.1966); Castle v. Daniels, 16 Oh.App.3d. 209, 475 N.E.2d 149 (Champaign County 1984). No evidence was presented to the court that would support a finding that there was a mutual mistake of the parties or that the loan documents do not represent the true intention of the parties. To the contrary, the evidence shows that Pinetree, from the beginning, has carried the loan on its financial statements and federal tax returns as a mortgage loan. Pinetree has also deducted the interest expenses and the lease payments on its tax returns. Even with Pinetree’s explanation that it has continued this practice so as to be consistent until a determination is made as to the realities of the transaction, the court can only conclude that when OTR and Pinetree entered into the transaction, both parties viewed it as a debtor-creditor relationship. Accordingly, Pinetree’s claim of equitable reformation is denied. D FRAUDULENT CONVEYANCE Finally, Pinetree alleges that the sums of money paid tp OTR prior and subsequent to September 22, 1982, which were in the nature of equipment fees, interest payments, principal and ground rent payments, are avoidable pursuant to 11 U.S.C. § 548(a) which provides: (a) The trustee may avoid any transfer of an interest of the debtor in property, or any obligation incurred by the debtor, that was made or incurred on or within one year before the date of the filing of the petition, if the debtor voluntarily or involuntarily— (1) made such transfer or incurred such obligation with" }, { "docid": "20923192", "title": "", "text": "of $2,616.20 with interest accruing at 8% per year. Was-son’s plan provides for the full payment of the student loan principal and the pre-petition interest. The plan does not, however, provide for the payment of post-petition interest on the student loan. NMEAF objects to the confirmation of the plan because the plan fails to provide for payment of the contractual interest rate until the principal is paid in full. DISCUSSION The Bankruptcy Code contains divergent sections which address but do not answer the question before this Court. The relevant Code section states: As soon as practicable after completion by the debtor of all payments under the plan, ... the court shall grant the debtor a discharge of all debts provided for by the plan or disallowed under section 502 of this title, except any debt ... of the kind specified in section ... 523(a)(8). 11 U.S.C. § 1328(a). Section 502(b)(2) provides that creditors’ claims for unmatured interest are disallowed. Id. at § 502(b)(2). Section 523(a)(8) exempts student loans from discharge in bankruptcy. Id. at § 523(a)(8). In answering the question before this Court, we first examine the language of the relevant Code sections. The language of sections 502(b)(2) and 523(a)(8) is ambiguous. The definition of the word “loan” in section 523(a)(8) fails to provide any guidance. Loan is defined as “delivery by one party to and receipt by another party of [a] sum of money upon agreement, express or implied, to repay it with or without interest.” Blacks Law Dictionary, (6th ed. 1990) (emphasis added). As the language of the applicable Code sections is ambiguous, we next examine the relevant sections’ legislative history. The legislative history of section 523(a)(8) sheds no light on whether Congress intended the use of the word “loan” in this section to exempt solely the principal of the student loan from discharge or both the principal and interest. The legislative history of section 502(b)(2), which disallows creditors’ claims for unmatured interest, only provides that “interest stops accruing at the date of filing of the petition [and] ... [that] bankruptcy operates as the acceleration of the principal" }, { "docid": "1152557", "title": "", "text": "and (A) a security interests [sic] in debtor’s crops and the proceeds thereof for the 1987 growing season; b, — The lien and security interest approved herein in favor of-the lender shall have priority over any and all administrative-expenses o-f any kind (except for fees and expenses that may-be approved by this-Court for-the attorney for the debtor or other attorney's accounts or other professional persons whose employment has been approved by the Court) as well maximum- priority in repayment permissible under- Section 364(c)(1) of the Code. 3. The entering into, execution, performance and consummation of the subject transaction, the line of credit agreement and security documents by the debtor hereby are expressly confirmed and approved authorized. 4. All acts of the debtor herein pertaining to his transaction with the lender as approved authorized by the Court shall be binding on any successor to the debt- or, including without limitation any successor trustee appointed under any Chapter of the Bankruptcy Code. On April 8, 1987, the debtor and lender executed a Loan Crop Agreement. Paragraph 5 of this Agreement provides that: SECURITY: All amounts owed hereunder by the Borrower shall be secured by a security interest under Section 364(c)(2) of the Federal Bankruptcy Act in the onion crop and growing crops of Ted Sobiech Farms and proceeds therefrom for the 1987 growing season as more fully set forth in the Order of Judge Jeremiah E. Berk dated April [6], 1987, a copy of which is attached hereto as Exhibit A and made a part hereof. Borrower agrees to execute any and all documents necessary to effectuate a security interest in the Ted Sobiech Farms’ 1987 onion crops and the proceeds therefrom. Loan Crop Agreement, ¶ 5. Thereafter, the claimant used the funds to purchase supplies, plant the crop and harvest. The debtor-in-possession failed to repay the line of credit or the crop loan agreement and subsequently converted to Chapter 7 liquidation on March 10, 1988. At the bankruptcy hearing on March 13, 1991, the parties stipulated that the principal amount of the Mulligan Loan was $413,332.33. This amount represents the amount" }, { "docid": "4773274", "title": "", "text": "in prosecuting toward obtaining your wages from you [sic] previous employer. Any recoveries would be applied toward the repayment of this advance. If you would like us to assist you in this matter, please sign one (1) copy of this By signing this letter, you are: 1. Acknowledging receipt of an advance from POFOC in the sum of: $-. 2. Authorizing POFOC to retain counsel to prosecute in your name, at the expense of POFOC, and [sic] administrative priority claim, against Retsod, in the U.S. Bankruptcy Court for the Middle District of Georgia, or in such other courts as may be deemed appropriate. 3. Agreesing' [sic] that POFOC shall have a security interest to the extent of the advance and any monies recovered for you in any such suit or administrative proceeding. 4. Acknowledging that this is a loan advance repayable to POFOC. By: Jim Hurst Director of Operations For POFOC, Inc. Mr. Clapp testified at the June 15, 1988 hearing that this letter was not prepared by an attorney. Debtor contends that the letter evidences a loan and therefore Mov-ants are not entitled to administrative priority. Debtor asserts that to allow Mov-ants administrative priority would expose Debtor to double liability since the individual employees could still file administrative claims on their own. The Court is not persuaded by Debtor’s argument. Although the letter does make reference to a “loan,” the use of the word “loan” is not controlling. The law does not require the use of magic words. The Court is also mindful of the fact that the priority status attaches to the claim itself, not to the claimant. In discussing subrogation and assignment of claims, Collier on Bankruptcy states: Subrogation with respect to priority is intended to be given for administrative claims and claims arising during the involuntary gap period. The equitable doctrine of subrogation is based on common law principles and includes every instance in which one party pays the debt for which another is responsible so long as the payment was made under compulsion or to protect the party making the payment and in the .discharge" }, { "docid": "1152560", "title": "", "text": "mistake, as the attempt is untimely pursuant to Rule 60(b) of the Federal Rules of Civil Procedure; (3) the April 6, 1987 Order is clear on its face in that it authorized the debtor to obtain credit from Mulligan solely under Section 364(c)(2); (4) the $413,332.33 deficiency portion of Claim Number 96 is not entitled to an unsecured administrative expense priority under either Code Section 364(a), (b) or (c)(1). See March 19, 1991 Order. The matter is before this Court on claimants’ appeal from Judge Berk’s March 19, 1991 Order. This Court’s appellate jurisdiction is based on 28 U.S.C. § 158. The standard of appellate review is de novo review of question of law. On appeal, claimants argue that Claim Number 96 is entitled to administrative status pursuant to Section 364(a) or (c)(1) and other forms of priority pursuant to Section 503(b). The basis of the claimants argument is that at the time the purchase and loan were presented to the Bankruptcy Court for approval the parties represented that they would seek super priority under Section 364(c)(2) and administrative priority for the debt. On this appeal, this Court must first review the bankruptcy court’s determination that the debtor had standing to object to Claim No. 96. While it was once true that a debtor could object to a creditor’s claim only in cases where there is no trustee or where a disallowance of the claim objected to would produce a surplus for the debtor, In re Silverman, 10 B.R. 734 (Bankr.S.D.N.Y.1981), aff'd, 37 B.R. 200 (S.D.N.Y.1982), this is no longer the law. Section 502 provides that an objection may be made by any party in interest. While “party in interest” is not defined in the Code, a debtor is deemed to be a party in interest. 8 L. King, Collier on Bankruptcy 3007.03[2] (15th ed. 1990). In the instant case, if the debtor’s objection to Mulligan’s claim is sustained, it will directly benefit the debtor, by making funds available to pay the non-dischargea-ble IRS claims. The IRS has two large non-dischargeable claims. If Mulligan’s claim has priority of administrative status," }, { "docid": "7508826", "title": "", "text": "the transaction without penalty by May 10, 1998. After completing its due diligence, CFI exercised this right and terminated the transaction. The right to purchase the hotel then fell to Appellee Cals-tar for $15,500,000. Calstar agreed to loan Debtor $150,000 to keep the hotel open while Calstar completed its due diligence prior to closing the sale. This postpetition financing was approved by the bankruptcy court on a “su-perpriority” basis under 11 U.S.C. § 364(c)(1). Calstar’s superpriority loan did not alter the rights of secured creditors, but it gave Calstar the right to repayment ahead of all administrative and unsecured claims. Calstar subsequently decided not to purchase the hotel. It withdrew from the transaction without penalty. Finding itself without any prospective purchasers of the hotel, the bankruptcy court entered an order permitting the sale of Debtor’s assets through public auction. In August 1998, the hotel and all related personal property were sold through public auction for $10,650,000. B. The Settlement Agreement Between Debtor and RFI After the sale of the hotel, but before final approval by the bankruptcy court, Debtor’s counsel sought a payment out of RFI’s secured collateral under the authority of 11 U.S.C. § 506(c). Section 506(c) provides that the “trustee may recover from property securing an allowed secured claim the reasonable, necessary costs and expenses of preserving, or disposing of, such property to the extent of any benefit to the holder of such claim.” The payment of these “reasonable and necessary” expenses out of the secured property of a creditor is known as a surcharge. RFI did not concede that Debtor’s counsel had provided any measurable benefit to its secured collateral. Nevertheless, it entered into an agreement allowing Debtor’s counsel to collect a $50,000 surcharge from its secured property. The surcharge agreement also provided that “RFI’s secured and unsecured claims shall be irrevocably allowed and no debtor, administrative claimant or party in interest may: ... (5) seek to surcharge any of RFI’s collateral pursuant to 11 U.S.C. § 506(c).” In effect, RFI attempted to buy “closure” by agreeing to a $50,000 surcharge in exchange for assurance that there" }, { "docid": "7108768", "title": "", "text": "between that which is nondischargeable and that which is not. The Court must determine this issue based on the plain language of the statute. Section 523(a)(8) states that the debtor does not receive a discharge of a debt “for an educational benefit overpayment or loan made, insured or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution, or for an obligation to repay funds received as an educational benefit, scholarship or stipend, .... ” 11 U.S.C. § 523(a)(8). This section identifies three categories of debts which were intended to be excepted from discharge. Reducing the statute to its simplest terms, these categories of debts are: 1) educational benefit overpayment, 2) a loan, or 3) an obligation to repay funds received. This debt is not an educational benefit overpayment. Educational benefit overpayment occurs in programs like the GI Bill, where students receive periodic payments upon their certification that they are attending school. When a student receives funds but is not in school, this is a educational benefit overpayment. No facts supporting an educational benefit overpayment exist. Neither is this debt an obligation to repay funds received; no funds were received by the defendant from plaintiff. The only way plaintiffs debt can be nondischargeable is if it is a “loan” within the meaning of the statute. The Bankruptcy Code contains no definition of the word “loan”. This Court must use the plain meaning of the word “loan”. The legal definition of loan set forth in Black’s Law Dictionary is: Loan. A Lending. Delivery by one party to and receipt by another party of sum of money upon agreement, express or implied, to repay it with or without interest. Black’s Law Dictionary 712 (6th ed. 1990) (citing, Boerner v. Colwell Co., 21 Cal.3d 37, 145 Cal.Rptr. 380, 384, 577 P.2d 200). Two cases cited in the parties’ briefs use an almost identical definition. Andrews University v. Merchant, (In re Merchant), 958 F.2d 738 (6th Cir.1992); Alibatya v. New York University, (In re Alibatya), 178 B.R. 335 (Bankr.E.D.N.Y.1995). The definition" } ]

[ { "docid": "1068103", "title": "", "text": "secured portion. On November 1, 1990, the trustee filed a complaint seeking to void the transfer as a preference pursuant to 11 U.S.C. § 547(b). Section 547(b) of the Bankruptcy Code empowers a trustee to void a transfer if the trustee can establish that the transfer was: (1) a transfer of property of the debtor; (2) to or for the benefit of a creditor; (3) for or on account of an antecedent debt owed by the debtor before the transfer was made; (4) made while the debtor was insolvent; (5) made on or within ninety days before the date of the filing of the petition, or between ninety days and one year before the date of the filing if the creditor was an insider; and (6) the transfer enables the creditor to receive more than such creditor would receive if (A) the case were under chapter 7 of Title 11; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by Title 11. The trustee has the burden of proving that a transfer is voidable as a preference. Following a hearing, the bankruptcy court concluded that the trustee had met his burden and declared the transfer void as a preference in violation of § 547(b). Winn appealed and the district court affirmed the bankruptcy court’s conclusion. In the bankruptcy court action, Winn argued that (1) the debt was not an antecedent debt of the debtor, (2) the debtor was not insolvent, and (3) Winn was not an insider with respect to the debtor. On appeal, the parties agree that the only element left in dispute is whether the antecedent debt owed to Winn is a debt of the debtor. We hold that it is and affirm. In reviewing a bankruptcy court decision we apply the same standards of review as those governing appellate review in other cases. See In re Davidovich, 901 F.2d 1533, 1536 (10th Cir.1990). “[W]e review the bankruptcy court’s legal determinations de novo, and its factual findings under the clearly erroneous standard.” Id. (citation omitted); Fed.R.Civ.P. 52(a)." } ]

[ { "docid": "2353966", "title": "", "text": "designed to deter insiders from influencing an insolvent debtor to distribute its remaining assets in a manner that benefits the insider to the detriment of non-insider creditors. Section 550(a) empowers a trustee in bankruptcy to recover transfers avoided under § 547(b). The individuals who guaranteed Sufolla’s obligation are “insiders” within the meaning of § 547(b)(4)(B), see 11 U.S.C. § 101(31) (Supp. III 1991). None of the defenses in § 547(c) are implicated. The guarantors are also “creditors” within the meaning of § 547(b)(1) because they have a contingent right to payment from the debtor. See 11 U.S.C. § 101(10), (5) (Supp. III 1991). In the customary trilateral preference case, the debtor transfers an interest in property to a non-insider creditor within one year — but not within ninety days — of bankruptcy. The trustee, representing the unsecured creditors of the debtor, seeks to avoid the transfer under § 547(b) and to recover from the non-insider under § 550(a), on the theory that the transfer benefited the insider guarantor by reducing the guarantor’s exposure on the debtor’s obligation. B. Although we confront this issue for the first time, four circuits have held that a trustee may recover from an outside creditor a transfer made within one year of bankruptcy, where the transfer benefits an inside guarantor. See Levit v. Ingersoll Rand Fin. Corp. (In re V.N. Deprizio Constr.), 874 F.2d 1186 (7th Cir.1989); Southmark Corp. v. Southmark Personal Storage, Inc. (In re Southmark Corp.), 993 F.2d 117, 120 (5th Cir.1993); Ray v. City Bank & Trust Co. (In re C-L Cartage Co.), 899 F.2d 1490 (6th Cir.1990); Manufacturers Hanover Leasing Corp. v. Lowrey (In re Robinson Bros. Drilling, Inc.), 892 F.2d 850 (10th Cir.1989), aff'g, Lowrey v. First Nat’l Bank of Bethany (In re Robinson Bros. Drilling, Inc.), 97 B.R. 77 (W.D.Okla.1988); see also T.B. Westex Foods, Inc. v. Federal Deposit Ins. Corp. (In re T.B. Westex Foods, Inc.), 950 F.2d 1187 (5th Cir.1992) (allowing recovery from garnishor of payment made by debtor garnishee, where payment benefited garnishee’s insider). The leading case is In re Deprizio, upon which the bankruptcy court" }, { "docid": "13477139", "title": "", "text": "duties to deal with the property for the benefit of another.”). Moreover, the record does not support a conclusion that the funds were either held in- an express or resulting trust or earmarked as ARA's for payment to Grosz. See In re Oxford Management, Inc., 4 F.3d 1329, 1335 (5th Cir.1993) (concluding that no express trust can exist when recipient of funds can .use them as its own and commingle them with its own monies); Coral Petroleum, Inc. v. Banque Paribas-London, 797 F.2d 1351, 1362 n. 12 (5th Cir.1986) (explaining that doctrine of \"earmarking” cannot be invoked where debtor \" ‘had absolute control over [the] funds [and claimant] had no legal right to force him to make an endorsement' \" (quotation omitted)); Harris v. Sentry Title Co., 715 F.2d 941, 946 (5th Cir.1983) (stating that resulting trust requires \"evidence of a shared intent to establish a strict fiduciary relationship”), modified on other grounds, 727 F.2d 1368 (per curiam), cert. denied, 467 U.S. 1226, 104 S.Ct. 2679, 81 L.Ed.2d 874 (1984). . Ch. 11 Case No. 389-36324-SAF-11, Adv. No. 391-3400 (N.D.Tex. June 25, 1992). . In that case, unlike this one, Southmark/Envi-con had a negative balance in the CMS at the time that Southmark paid the subsidiary's former officer. . The bankruptcy court appears to have been persuaded by the evidence that ARA was the company identified as the payor on Grosz’ check and on his W-2 Form, which suggests that the purpose of the transfer was to compensate Grosz for his service to ARA. But we have stated that, “[t]he purpose of the transfer is not dispositive of the question whether it qualifies as an avoidable preference under section 547(b) because 'it is the effect of the transaction, rather than the debtor’s or creditor’s intent, that is controlling.’ ” See In re T.B. Westex Foods, Inc., 950 F.2d 1187, 1195 (5th Cir.1992) (quoting 4 Collier on Bankruptcy ¶ 547.01 (Lawrence P. King et al. eds., 15th ed. 1994) (emphasis in original)). In this case, the effect was that the payment to Grosz depleted the amount of funds that otherwise could" }, { "docid": "7656578", "title": "", "text": "it cannot be determined on these motions whether the defense has merit. Since the Debtors have not demonstrated any cognizable prejudice from allowing the amendment, and Rule 15 provides that leave to amend \"shall be freely given when justice so requires,” the motion to amend is granted. U.S. v. Continental Illinois Nat’l Bank & Trust Co., 889 F.2d 1248, 1255 (2d Cir.1989). . The result would be different if the finance company had been fully secured. Schwinn Plan Comm. v. Transamerica Ins. Fin. Corp. (In re Schwinn Bicycle Co.), 200 B.R. 980 (Bankr.N.D.Ill.1996). . New value involving the provision of services is given on the date when the services are performed. Webster v. Harris Corp. (In re NETtel Corp., Inc.), 319 B.R. 290, 295 (Bankr.D.D.C.2004), quoting Collier on Bankruptcy ¶ 547.04[4][c] (15th ed.2003). . Deprizio was followed by many other courts. See Mendelsohn v. Sequa Fin. Corp. (In re Frank Santora Equip. Corp.), 231 B.R. 486, 490 (E.D.N.Y.1999); Galloway v. First Alabama Bank (In re Wesley Indus., Inc.), 30 F.3d 1438, 1441 (11th Cir.1994); Official Unsecured Creditors Committee v. U.S. National Bank of Oregon (In re Sufolla, Inc.), 2 F.3d 977, 980 (9th Cir.1993); T.B. Westex Foods, Inc. v. FDIC (In re T.B. Westex Foods, Inc.), 950 F.2d 1187 (5th Cir.1992); Ray v. City Bank & Trust Co. (In re C-L Cartage Co.), 899 F.2d 1490 (6th Cir.1990). It took two amendments to the Bankruptcy Code to overturn Deprizio. Congress first amended § 550 to add § 550(c), and when that did not completely eradicate the result, it added new § 547(i). See Official Comm. of Unsecured Creditors of ABC-NACO, Inc., ex rel ABC-NACO, Inc. v. Bank of Am., N.A. (In re ABC-NACO, Inc.), 331 B.R. 773, 778-79 (Bankr.N.D.Ill.2005), quoting H.R.Rep. No. 109-31, at 144 (2005), U.S.Code Cong. & Admin.News 2005, pp. 88, 202. However, both amendments relate to the applicable preference period and do not otherwise affect the general rule of coextensive liability between transferees and entities for whose benefit the transfer was made. . This is also the general rule in the area of suretyship, where a defense" }, { "docid": "18738417", "title": "", "text": "power promotes the “prime bankruptcy policy of equality of distribution among creditors” by ensuring that all creditors of the same class will receive the same pro rata share of the debtor’s estate. Second, the avoidance power discourages creditors from attempting to outmaneuver each other in an effort to carve up a financially unstable debtor and offers a concurrent opportunity for the debtor to work out its financial difficulties in an atmosphere conducive to cooperation. Morrison v. Champion Credit Corp. (In re Barefoot), 952 F.2d 795, 797-98 (4th Cir.1991) (citations omitted) (quoting H.R.Rep. No. 595, 95th Cong., 2d Sess. 178 (1978), reprinted in 1978 U.S.C.C.A.N. 5963, 6138); see also Harman v. First Am. Bank of Md. (In re Jeffrey Bigelow Design Group, Inc.), 956 F.2d 479, 488 (4th Cir.1992) (“Congress was concerned that creditors would race to the courthouse to dismember the [debtor] or that a debtor would favor certain creditors over others”). Advo concedes that the ten payments at issue here are preferences under § 547(b). However, Advo argues that the payments are not avoidable because, Advo says, the payments fall within the ordinary course of business exception in § 547(c)(2). Section 547(c)(2) says that the trustee may not avoid a transfer: to the extent that such transfer was— (A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee; (B) made in the ordinary course of business or financial affairs of the debtor and the transferee; and (C)made according to ordinary business terms. Advo has the burden of proving by a preponderance of the evidence that each payment satisfies each of § 547(c)(2)’s three subsections. See 11 U.S.C. § 547(g); Logan v. Basic Distribution Corp. (In re Fred Hawes Org., Inc.), 957 F.2d 239, 242 (6th Cir.1992). “This inquiry is ‘peculiarly factual.’ ” Bigelow, 956 F.2d at 486 (quoting In re First Software Corp., 81 B.R. 211, 213 (Bankr.D.Mass.1988)). Maxway acknowledges that the payments were made in the ordinary course of the parties’ business and thus Advo has satisfied subsection A. Whether Advo made its" }, { "docid": "15571250", "title": "", "text": "547 of the Bankruptcy Code is that creditors of the debtor should not be able to improve their position during the ninety days immediately prior to the bankruptcy filing. Section 547 states in relevant part: (b) Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property— (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made— (A)on or within 90 days before the date of the filing of the petition, if such creditor was an insider; and (5) that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt by the provisions of this title. 11 U.S.C. § 547(b) (1988). The purpose underlying section 547 is two-fold. First, the rule ensures that similar creditors are similarly situated to receive distributions from the debtor’s assets. Second, and more importantly, the policy stops the “race” to dismantle the debtor by requiring creditors who jump the gun to return to the starting line. See generally 4 Lawrence P. King, Collier on Bankruptcy, ¶ 547.01, at 547-11 & n. 8 (15th ed. 1990). Therefore, the Bankruptcy Code’s preference provision within section 547 prevents, among other things, the premature demise of financially distressed debtors and unfair advantage-taking by insiders with superior knowledge of the debtor’s financial condition. The trustee bears the burden of persuasion as to the elements of section 547(b). See 11 U.S.C. § 547(g); Decatur Contracting v. Belin, Belin & Naddeo, 898 F.2d 339, 345 n. 5 (3d Cir.1990). Once the trustee has met its burden, a creditor may raise any or all of the five exceptions set forth in section 547(c); thus, not all transfers that appear at first blush to be preferential may be set aside by the trustee. The creditor bears" }, { "docid": "1203104", "title": "", "text": "occurring within ninety days of the filing of the bankruptcy petition. After conducting an evidentiary hearing, the bankruptcy court ruled in favor of the trustee and ordered the defendants to pay the trustee $109,-664.07 plus interest. On appeal, the district court affirmed the bankruptcy court’s decision. Appellants now contest those rulings. II. The bankruptcy trustee’s power to avoid preferential transfers to creditors in the ninety days preceding bankruptcy stems from 11 U.S.C. § 547(b). Two purposes animate this statutory avoidance power. First, the avoidance power promotes the “prime bankruptcy policy of equality of distribution among creditors” by ensuring that all creditors of the same class will receive the same pro rata share of the debtor’s estate. H.R.Rep. No. 595, supra, at 177-78, reprinted in 1978 U.S.Code Cong. & Admin.News at 6137-6139. Second, the avoidance power discourages creditors from attempting to outmaneuver each other in an effort to carve up a financially unstable debtor and offers a concurrent opportunity for the debtor to work out its financial difficulties in an atmosphere conducive to cooperation. H.R.Rep. No. 595, 95th Cong., 2d Sess. 177 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 5963, 6137-6138; In re Fuel Oil Supply & Terminaling, Inc., 837 F.2d 224, 227 (5th Cir.1988). Under 11 U.S.C. § 547(b), there are six elements that must be proved in order for a transfer to be set aside as preferential. The transfer must have been: (1) of an interest of the debtor in property; (2) to or for the benefit of a creditor; (3) for or on account of an antecedent debt owed by the debtor before the transfer was made; (4) made while the debtor was insolvent; (5) made on or within ninety days of the filing of the bankruptcy petition; and (6) it must enable the creditor to receive a greater percentage of its claim than it would under the normal distributive provisions in a liquidation case under the Bankruptcy Code. 11 U.S.C. § 547(b). We shall address in this section Champion’s contention that various elements of a preferential transfer have not been made out. A. Champion contends that" }, { "docid": "17927854", "title": "", "text": "instant factual situation, and we accordingly turn to take a fresh look at the language of section 550. We find that the unambiguous language of this section allows for no other conclusion than that the avoidable transfer can be recovered from Alaska, the initial transferee. Alaska claims that such a result does not serve the policy behind the extended insider preference period. Alaska states that the extended period was created “to prevent an insider from deliberately depleting the es tate’s assets in order to protect his own interests.” See, e.g., Levit, 874 F.2d at 1195. Bond could not have deliberately-effected the transfer to Alaska, Alaska argues, because the transfer was involuntary on Westex’s part. Alaska appears to contend that where this asserted policy is not served, this Court should disregard the plain language of section 550(a) in deference to predominant principles of equity. The purpose of a transfer is not dispositive of the question whether it qualifies as an avoidable preference under section 547(b) because “it is the effect of the transaction, rather than the debtor’s or creditor’s intent, that is controlling.” 4 Collier on Bankruptcy If 547.01 (emphasis in original). The purpose of section 547(b) is to “ ‘facilitate the prime bankruptcy policy of equality of distribution among creditors of the debtor.’ ” Id. (quoting H.R.Rep. No. 595, 95th Cong., 1st Sess. 177-78 (1977) (House Report), U.S.Code Cong. & Admin.News 6137-39 (1978)). The creditor’s or debtor’s “ ‘state of mind has nothing whatsoever to do with the policy of equality of distribution.’ ” Id. at 1f 547.01 n. 12 (quoting House Report at 178); see Matter of Hughes, 704 F.2d 820, 822 (5th Cir.1983); Barash v. Public Fin. Corp., 658 F.2d 504, 510 (7th Cir.1981). Alaska mistakenly treats the policy of preventing insiders from exploiting their position as the only goal of the extended insider preference period. The policy cited by Alaska is also intended to serve the larger goal of orderly and equal distribution of a debtor’s assets in bankruptcy, a goal directly served by allowing recovery from noninsider initial transferees. See Levit, 874 F.2d at 1194-95. Alaska" }, { "docid": "13035131", "title": "", "text": "of a debtor, generally referred to as preferences. See 11 U.S.C. § 547(b); see also Advo-System, Inc. v. Maxway Corp., 37 F.3d 1044, 1045 (4th Cir.1994). Property brought back into the estate under this section is shared by debt- or’s unsecured creditors on a pro rata basis. See Gulf Oil Corp. v. Fuel Oil Supply & Terminaling, Inc. (In re Fuel Oil Supply & Terminaling, Inc.), 837 F.2d 224, 227 (5th Cir.1988). Section 547(b) serves two congressional goals: First, the avoidance power promotes the “prime bankruptcy policy of equality of distribution among creditors” by ensuring that all creditors of the same class will receive the same pro rata share of the debtor’s estate. Second, the avoidance power discourages creditors from attempting to outmaneuver each other in an effort to carve up a financially unstable debtor and offers a concurrent opportunity for the debtor to work out its financial difficulties in an atmosphere conducive to cooperation. Advo-System, Inc., 37 F.3d at 1047. While § 547(b) implements Congress’ twin goals, § 547(c) exempts prefer ential transfers that do not further these purposes. See In re Fuel Oil Supply & Terminaling, Inc., 837 F.2d at 227. Thus, even if all the elements of § 547(b) are met, the preferential transfer will not be avoided if it falls within an exception under § 547(c). The burden of proof for preferences is allocated to the parties by § 547(g) as follows: For the purposes of this section, the trustee has the burden of proving the avoidability of a transfer under subsection (b) of this section, and the creditor or party in interest against whom recovery or avoidance is sought has the burden of proving the nonavoidability of a transfer under subsection (c) of this section. This court has previously held by partial summary judgment that the trustee met his burden of proving GEM’s payment of $21,209.06 to C.A. Guard and payment of $81,874.00 to Stovall constituted preferential payments under § 547(b). The issues the court must yet decide are whether the defendants have met their burden of proving that (1) the payments to C.A. Guard" }, { "docid": "15020413", "title": "", "text": "the limited and essentially \"ministerial” further proceedings required by its remand to the bankruptcy court will neither enhance nor alter our resolution of the issues now before us, and, moreover, could well prove futile. We agree with this reasoning, and are satisfied that we have jurisdiction to hear this appeal. . McMurtray v. Holladay, 11 F.3d 499, 502 (5th Cir.1993). . Fed.R.Civ.P. 56(c). . Matter of McDaniel, 70 F.3d 841, 843 (5th Cir.1995). . 11 U.S.C. 547(b) provides in Ml: Except as provided in Subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property— (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made— (A)on or within 90 days before the filing of the petition; or (B)between ninety days and one year before the date of the filing of the petition, if such creditor at the time of the transfer was an insider; and (5)that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under Chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by the provisions of this title (emphasis added). . H.R.Rep. No. 595, 95th Cong., 1st Sess., at 177-78 (1977), reprinted in 1978 U.S.C.C.A.N. 5963, 6138. . Lawrence P. King, ed., 4 Collier on Bankruptcy, ¶ 547.01, at 547-12 (15th edition 1996). . Id. at 547-13. . ll U.S.C. § 101(54). . 4 Collier on Bankruptcy, ¶ 547.03, at 547-20; 11 U.S.C. § 547(c)(6). See also In re Cockreham, 84 B.R. 757, 762 (D.Wyo.1988) (nonconsensual transfers such as execution sales obtained through judicial proceedings are within the purview of Code’s definition of \"transfer”). . 4 Collier on Bankruptcy, ¶ 547.03, at 547-24. . It seems clear to us that Cullen must acknowledge that Criswell maintained some kind of interest in the Live Oak County properties, at least" }, { "docid": "14647640", "title": "", "text": "the Bankruptcy Code. The purpose of this section is to facilitate “the prime bankruptcy policy of equality of distribution among creditors of the debtor. Any creditor that received a greater payment than others of its class [pre-petition] is required to disgorge so that all may share equally.” 2 Collier on Bankruptcy ¶ 547.01 (15th ed. rev.2003). Section 547(b) provides, in pertinent part: (b) Except as provided in subsection (c) of this section, the trustee may avoid any transfer of an interest of the debtor in property- (1) to or for the benefit of a creditor; (2) for or on account of an antecedent debt owed by the debtor before such transfer was made; (3) made while the debtor was insolvent; (4) made- (A)on or within 90 days before the date of the filing of the petition; # # ❖ # (5) that enables such creditor to receive more than such creditor would receive if- (A) the ease were a case under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by the provisions of this title. 11 U.S.C. § 547(b). Defendants do not dispute that the requirements of the first four subsections of § 547(b) are satisfied. Rather, they assert that the trustee cannot establish a prima facie case for recovery because he cannot meet the requirements of § 547(b)(5). To satisfy the requirements of § 547(b)(5), the trustee must establish that the transfer yielded the creditor a greater return on its debt than it would have received if the transfer had not taken place and it had received a distribution under a Chapter 7 liquidation. See Mellon Bank, N.A. v. Metro Communications, Inc., 945 F.2d 635, 644 n. 2 (3d Cir.1991); see also In re El Paso Refinery, L.P., 171 F.3d 249, 253 (5th Cir.1999) (same); cf. Palmer Clay Products Co. v. Brown, 297 U.S. 227, 229, 56 S.Ct. 450, 80 L.Ed. 655 (1936) (under section 60a of the Bankruptcy Act, a payment was considered to be a preference if it enabled the" }, { "docid": "15571251", "title": "", "text": "two-fold. First, the rule ensures that similar creditors are similarly situated to receive distributions from the debtor’s assets. Second, and more importantly, the policy stops the “race” to dismantle the debtor by requiring creditors who jump the gun to return to the starting line. See generally 4 Lawrence P. King, Collier on Bankruptcy, ¶ 547.01, at 547-11 & n. 8 (15th ed. 1990). Therefore, the Bankruptcy Code’s preference provision within section 547 prevents, among other things, the premature demise of financially distressed debtors and unfair advantage-taking by insiders with superior knowledge of the debtor’s financial condition. The trustee bears the burden of persuasion as to the elements of section 547(b). See 11 U.S.C. § 547(g); Decatur Contracting v. Belin, Belin & Naddeo, 898 F.2d 339, 345 n. 5 (3d Cir.1990). Once the trustee has met its burden, a creditor may raise any or all of the five exceptions set forth in section 547(c); thus, not all transfers that appear at first blush to be preferential may be set aside by the trustee. The creditor bears the burden of persuasion as to the exceptions contained in subsection c. See 11 U.S.C. § 547(g). Of course, a secured creditor in a Chapter 7 proceeding is entitled to receive its collateral or proceeds derived from its liquidation by the trustee. Id. §§ 363(f) & 725 (1993). Thus, as correctly pointed out by the Bankruptcy Judge in this case, there is no preference under section 547(b) if the creditor merely receives a pre-petition transfer of its collateral or proceeds therefrom, because the creditor has not received anything greater than it would have received in bankruptcy if the transfer had not been made. The trustee has asserted several errors regarding the Bankruptcy Judge’s findings of fact and conclusions of law on the issue of preferential transfer. First, the trustee contends that the Bankruptcy Judge erred as a matter of law in finding that the sale of Jersey Coast stock was not a preferential transfer under section 547. The trustee’s position is that because the subsidiary’s stock was not collateral for MNC’s loan, proceeds from its" }, { "docid": "6210379", "title": "", "text": "SPS before collecting from Southmark. By late 1988, some of the collateral notes were in default. To satisfy its obligation under the guaranty, Southmark transferred $221,708 to the account at FNB in payment for the defaulted collateral notes. Seven months later, Southmark filed for bankruptcy. Southmark then filed this action against FNB and SPS to recover the $221,708 payment as preferential under 11 U.S.C. §§ 647(b) and 550(a)(1). Southmark’s complaint alleges that the one-year insider preference period of § 547(b)(4) applies to the transfer, because the payment benefitted SPS, an insider and creditor of Southmark. The bankruptcy court dismissed Southmark’s complaint for failing to allege the required elements of a preference under § 547(b)(1) and (2). The court found that although SPS is an insider who benefitted from the transfer, SPS did not benefit as a creditor under the guaranty. The district court affirmed the dismissal, and Southmark now appeals to this court. II. The sole issue in this appeal is whether Southmark may maintain a preference action against FNB and SPS for the payment made outside the ordinary ninety-day preference period. Bankruptcy Code § 547(b) permits a debtor to avoid pre-bankruptcy transfers that benefit a creditor “on account of an antecedent debt,” as long as the transfer enables the creditor to receive more than it would have received in a chapter 7 liquidation. Section 547(b)(4)(B) provides for a one-year reachback period, instead of ninety days, “if such creditor at the time of such transfer was an insider.” The extended insider preference period both prevents insiders from exploiting their position and facilitates an “orderly and equal distribution of a debtor’s assets in bankruptcy-” T.B. Westex Foods, Inc. v. FDIC (Matter of T.B. Westex Foods, Inc.), 950 F.2d 1187, 1195 (5th Cir.1992). If a transfer is preferential, Bankruptcy Code § 550 enables a trustee to recover the payment from either the initial transferee or the creditor for whose benefit the transfer was made. Id. at 1194-95. Southmark paid FNB on the guaranty 217 days before bankruptcy, within the insider preference period. But FNB is not an insider. To avoid the transfer" }, { "docid": "11727863", "title": "", "text": "does not require any proof that the debtor actually did favor the insider, or the initial transferee in cases like this. The statute only requires proof that the insider received .more on his claim than he would have received otherwise. 11 U.S.C. § 547(b)(5). Even if the debtor had no intention of favoring the insider, payments to an unsecured insider that are not in the ordinary course of business will be avoided up to one year before bankruptcy while similar payments to other creditors will be avoided only up to ninety days. See T.B. Westex Foods, Inc. v. FDIC (In re T.B. Westex Foods, Inc.), 950 F.2d 1187, 1195 (5th Cir.1992) (explaining that equality of distribution is equally important even if preferences were involuntary and debtor obviously was not intentionally preferring the creditor). It does not matter whether the debtors actually favored Baleor; all that matters in deciding whether to apply the extended preference period is whether the transfers that benefited the insider guarantors enabled, them to receive more on their contingent claims than they would have received in bankruptcy without the transfers. If the debtor truly does not treat the creditor any better than other creditors, the transfers usually will be in the ordinary course of business and thus will not be avoidable at all. Some courts have refused to allow extended recovery in insider guarantor cases because they thought that doing so would make the ordinary course defense meaningless by' letting the trustee avoid transfers regardless of any defenses the outsider creditor may have. See Performance Communications, Inc. v. First Nat’l Bank (In re Performance Communications, Inc.), 126 B.R. 473, 476-77 (Bankr.W.D.Pa.1991). Even if a transfer is avoidable under section 547(b) because of benefit to a creditor other than the initial transferee, the exceptions apply to the transfers, not to the creditors. If a transfer was “in payment of a debt incurred ... in the ordinary course of business,” for example, it is not avoidable and cannot be recovered under section 550(a) from anyone, whether initial transferee or the creditor for whose benefit the transfer was made. However," }, { "docid": "18487559", "title": "", "text": "of “insiders” of the debtor. CEPA cites several decisions which allowed recovery of payments to creditors which served to reduce the liability of corporate insiders during the extended preference period. See Levit v. Ingersoll Rand Financial Corp. (In re V.N. Deprizio Constr. Co.), 874 F.2d 1186 (7th Cir.1989); In re Sufolla, Inc., 2 F.3d 977 (9th Cir.1993); In re Robinson Bros. Drilling, Inc., 892 F.2d 850 (10th Cir.1989); In re C-L Cartage Co., 899 F.2d 1490 (6th Cir.1990); In re T.B. Westex Foods, Inc., 950 F.2d 1187 (5th Cir.1992). Under the Deprizio line of cases, there is little doubt that CEPA would be allowed to recover payments made to an outside creditor during the extended preference period if the transfers benefited an inside creditor. However, since the Second Circuit has not ruled on the issue of whether the joint application of Sections 547(b)(4)(B) and 550(a) permits recovery from a non-insider creditor of a payment that benefitted an insider, the Southern District is not bound to follow that line of cases. In the only case in the Southern District of New York in which the question has been considered, the judge chose not to follow Deprizio because “as a policy matter, ... the [Deprizio ] rule would likely impede the availability of credit to ailing businesses.” In re Rubin Bros. Footwear, Inc., 119 B.R. 416, 425 (S.D.N.Y.1990). Courts and commentators have questioned the wisdom of the Deprizio rule. See In re Erin Food Services, Inc., 980 F.2d 792, 797-99 (1st Cir.1992); 4 Collier on Bankruptcy ¶ 550.02 (15th ed. 1988); Henk J. Brands, Note, The Interplay Between Sections 547(b) and 550 of the Bankruptcy Code, 89 Co-lum.L.Rev. 530 (1989). The traditional reason for rejecting the Deprizio rule is that it places creditors who receive guarantees in a worse position than creditors who do not receive guarantees since only the creditors who have guarantees will be required to disgorge under Section 550(a). Thus, creditors are faced with a “cateh-22” of either not taking a guarantee and risking nonpayment, or taking a guarantee and risking that payments made by the debtor will be" }, { "docid": "4603603", "title": "", "text": "interests are avoidable preferences pursuant to 11 U.S.C. § 547 (1994). In order to avoid a transfer as a preference, a trustee must prove the following elements: (1) There must be a transfer of an interest of the debtor in property; (2) On account of an antecedent debt; (3) To or for the benefit of a creditor; (4) Made while the debtor was insolvent; (5) Within 90 days prior to the commencement of the bankruptcy case; (6) That left the creditor better off than it would have been if the transfer had not been made and the creditor asserted its claim in a chapter 7 liquidation. 11 U.S.C. § 547(b). See Buckley v. Jeld-Wen, Inc. (In re Interior Wood Products Co.), 986 F.2d 228, 230 (8th Cir.1993). Once the trustee meets this burden, the trustee may avoid the transfer and recover the property or value of the property for the benefit of the estate pursuant to 11 U.S.C. § 550. Harstad v. First Am. Bank, 39 F.3d 898, 903 (8th Cir.1994). Ries has demonstrated all the elements of a preference. The transfer of a security interest in a debtor’s property is deemed to have occurred at the time the transfer is perfected if perfection occurs 10 days or more after the transfer. 11 U.S.C. § 547(e)(2)(B). Here, Firstar perfected its security interest in Iowa and Nebraska on June 8 and 9, 1994, more than two years after it received a security interest in SGLE cattle. Thus, the grant of the security interest which transferred SGLE’s interest in the cattle to Firstar, its creditor, on account of a debt created earlier when SGLE purchased the cattle occurred on June 8 and 9, 1994, when Firstar perfected its security interest. June 8 and 9, 1994, was two days before commencement of the case. There is no doubt that, if allowed, the filings would enhance Firstar’s position and put it in a much better position than it would have been asserting an unsecured claim in a chapter 7 liquidation. Finally, pursuant to 11 U.S.C. § 647(f), SGLE is presumed insolvent during the 90" }, { "docid": "13035130", "title": "", "text": "January 28, 1999, in response to this request, the owner paid Stovall $32,510.00 by check payable jointly to Stovall and GEM. On February 5, 1998, Stovall filed suit against GEM and Markel in the circuit court of the City of Richmond for the outstanding balance on its subcontract. GEM and Markel were served with notice of the suit on February 18, 1998, and February 17, 1998, respectively. On February 18, 1998, the same day that GEM received notice of the lawsuit, GEM delivered a check in the amount of $81,874.00 to Stovall for the full balance due under the subcontract, and Stovall contemporaneously executed a final lien waiver. Stovall also dismissed its case against GEM and Markel. At the time of GEM’s payment to Sto-vall, BTS owed GEM approximately $120,000.00, representing retainage under the general contract, and GEM owed its subcontractors approximately $254,832.08. Additional findings of fact are stated in the conclusions of law section of this opinion. Discussion and Conclusions of Law. Bankruptcy Code § 547(b) permits a trustee to invalidate certain pre-bankruptcy transfers of a debtor, generally referred to as preferences. See 11 U.S.C. § 547(b); see also Advo-System, Inc. v. Maxway Corp., 37 F.3d 1044, 1045 (4th Cir.1994). Property brought back into the estate under this section is shared by debt- or’s unsecured creditors on a pro rata basis. See Gulf Oil Corp. v. Fuel Oil Supply & Terminaling, Inc. (In re Fuel Oil Supply & Terminaling, Inc.), 837 F.2d 224, 227 (5th Cir.1988). Section 547(b) serves two congressional goals: First, the avoidance power promotes the “prime bankruptcy policy of equality of distribution among creditors” by ensuring that all creditors of the same class will receive the same pro rata share of the debtor’s estate. Second, the avoidance power discourages creditors from attempting to outmaneuver each other in an effort to carve up a financially unstable debtor and offers a concurrent opportunity for the debtor to work out its financial difficulties in an atmosphere conducive to cooperation. Advo-System, Inc., 37 F.3d at 1047. While § 547(b) implements Congress’ twin goals, § 547(c) exempts prefer ential transfers that" }, { "docid": "18738416", "title": "", "text": "brought an action against Advo pursuant to § 547(b) to recover the $177,506.33 in preference payments. Advo answered that the ten preference payments were made in the ordinary course of business and therefore were exempt under § 547(c)(2) from the trustee’s avoidance power. The parties filed cross motions for summary judgment. In an August 6, 1992, order, the bankruptcy court granted Maxway’s motion for summary judgment and denied Advo’s; the court held that Advo could not satisfy subsections B and C of § 547(c)(2). In an October 28,1993, order, the district court affirmed, apparently concluding that Advo could not satisfy subsection C. Advo now appeals to this court. We base our affirmance on Advo’s failure to satisfy subsection C. As a result, we do not reach the issue of whether the payments fit subsection B. III. To repeat, section 547(b) allows a trustee to avoid certain payments made by a debtor to its unsecured creditor within the 90-day period preceding the filing of the bankruptcy petition. Two major policies drive § 547(b): First, the avoidance power promotes the “prime bankruptcy policy of equality of distribution among creditors” by ensuring that all creditors of the same class will receive the same pro rata share of the debtor’s estate. Second, the avoidance power discourages creditors from attempting to outmaneuver each other in an effort to carve up a financially unstable debtor and offers a concurrent opportunity for the debtor to work out its financial difficulties in an atmosphere conducive to cooperation. Morrison v. Champion Credit Corp. (In re Barefoot), 952 F.2d 795, 797-98 (4th Cir.1991) (citations omitted) (quoting H.R.Rep. No. 595, 95th Cong., 2d Sess. 178 (1978), reprinted in 1978 U.S.C.C.A.N. 5963, 6138); see also Harman v. First Am. Bank of Md. (In re Jeffrey Bigelow Design Group, Inc.), 956 F.2d 479, 488 (4th Cir.1992) (“Congress was concerned that creditors would race to the courthouse to dismember the [debtor] or that a debtor would favor certain creditors over others”). Advo concedes that the ten payments at issue here are preferences under § 547(b). However, Advo argues that the payments are not avoidable" }, { "docid": "13477140", "title": "", "text": "389-36324-SAF-11, Adv. No. 391-3400 (N.D.Tex. June 25, 1992). . In that case, unlike this one, Southmark/Envi-con had a negative balance in the CMS at the time that Southmark paid the subsidiary's former officer. . The bankruptcy court appears to have been persuaded by the evidence that ARA was the company identified as the payor on Grosz’ check and on his W-2 Form, which suggests that the purpose of the transfer was to compensate Grosz for his service to ARA. But we have stated that, “[t]he purpose of the transfer is not dispositive of the question whether it qualifies as an avoidable preference under section 547(b) because 'it is the effect of the transaction, rather than the debtor’s or creditor’s intent, that is controlling.’ ” See In re T.B. Westex Foods, Inc., 950 F.2d 1187, 1195 (5th Cir.1992) (quoting 4 Collier on Bankruptcy ¶ 547.01 (Lawrence P. King et al. eds., 15th ed. 1994) (emphasis in original)). In this case, the effect was that the payment to Grosz depleted the amount of funds that otherwise could have been used to pay Southmark’s creditors. . In re Haber Oil Co., 12 F.3d 426, 443 (5th Cir.1994) (quoting United States v. Sutton, 786 F.2d 1305, 1308 (5th Cir.1986)); accord In re Oxford Management, Inc., 4 F.3d at 1334. . In re Haber Oil Co., 12 F.3d at 442-43 (citing Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206, 108 S.Ct. 963, 968, 99 L.Ed.2d 169 (1988)). . In re Oxford Management, Inc., 4 F.3d at 1334 (quoting Sutton, 786 F.2d at 1308). . 4 Collier on Bankruptcy, supra note 11, ¶ 541.11, at 541-74 (\"Deposits in a bank to the credit of a debtor become property of the estate under section 541(a)(1).”); see In re Bellanca Aircraft Corp., 850 F.2d 1275, 1279 (8th Cir.1988) (same); In re Bullion Reserve of N. Am., 836 F.2d 1214, 1217 (9th Cir.) (stating that money in commingled bank accounts under debtor's control \"presumptively constitutes property of the debtor’s estate\"), cert. denied, 486 U.S. 1056, 108 S.Ct. 2824, 100 L.Ed.2d 925 (1988). . See Coral Petroleum, Inc. v." }, { "docid": "6210380", "title": "", "text": "made outside the ordinary ninety-day preference period. Bankruptcy Code § 547(b) permits a debtor to avoid pre-bankruptcy transfers that benefit a creditor “on account of an antecedent debt,” as long as the transfer enables the creditor to receive more than it would have received in a chapter 7 liquidation. Section 547(b)(4)(B) provides for a one-year reachback period, instead of ninety days, “if such creditor at the time of such transfer was an insider.” The extended insider preference period both prevents insiders from exploiting their position and facilitates an “orderly and equal distribution of a debtor’s assets in bankruptcy-” T.B. Westex Foods, Inc. v. FDIC (Matter of T.B. Westex Foods, Inc.), 950 F.2d 1187, 1195 (5th Cir.1992). If a transfer is preferential, Bankruptcy Code § 550 enables a trustee to recover the payment from either the initial transferee or the creditor for whose benefit the transfer was made. Id. at 1194-95. Southmark paid FNB on the guaranty 217 days before bankruptcy, within the insider preference period. But FNB is not an insider. To avoid the transfer to FNB outside the ninety-day non-insider period, Southmark must demonstrate that the payment satisfies each element of § 547(b) with respect to the insider, SPS. Westex, 950 F.2d at 1190. The bankruptcy -court held that South-mark’s complaint fails to satisfy § 547(b)(1) and (2) with respect to SPS. First, the court found that SPS is not a “creditor” for purposes of subsection (b)(1), because SPS’s claim against Southmark is not related to Southmark’s guaranty obligation to FNB. Instead, SPS’s claim against the debtor derives from unrelated intercompany transfers. Second, Southmark’s payment did not benefit SPS “for or on account of an antecedent debt” ((b)(2)), because Southmark was not indebted to SPS on the guaranty underlying the transfer to FNB. Southmark Corp. v. Southmark Personal Storage, Inc. (In re Southmark Corp.), 138 B.R. 831, 835 (Bankr.N.D.Tex.1992). We must decide whether the bankruptcy and district courts correctly interpreted § 547(b) to require a nexus between the insider’s claim and the debt underlying the transfer. This circuit has not addressed the issue. We turn first to the language" }, { "docid": "371054", "title": "", "text": "be a director, officer, or other person in control of the corporation, including relatives of a general partner, director, officer, or person in control of the debtor. See 11 U.S.C. § 101(30). The purpose of the longer time period within which to avoid transfers to or for the benefit of insiders under Section 547(b)(4)(B) was designed to prevent creditors with inside knowledge of a debtor’s financial distress from taking advantage of that knowledge by rushing to collect on those obligations at the expense of outside creditors who lack the same information. Deprizio, 874 F.2d at 1194-95. Similarly, guarantor-insiders would have an incentive to see that the loans they have guaranteed are paid first in order to eliminate their exposure. Id. As a result, the Seventh Circuit concluded that the extended avoidance period established under Section 547(b) permits a trustee to recover a transfer to a non-insider where the transaction at issue benefits an insider-guarantor. Id. at 1195,1200-01. As the parties emphasize, the Second Circuit has never considered the issue. However, the five Circuit Courts of Appeals that have addressed the issue — the Fifth, Sixth, Ninth, Tenth and Eleventh Circuits — have following Deprizio’s lead. See, e.g., Galloway v. First Alabama Bank (In re Wesley Indus., Inc.), 30 F.3d 1438, 1441 (11th Cir.1994); Official Unsecured Creditors Committee v. United States Nat’l Bank (In re Sufolla, Inc.), 2 F.3d 977 (9th Cir.1993); Southmark Corp. v. Southmark Personal Storage, Inc. (In re Southmark Corp.), 993 F.2d 117, 120 (5th Cir.1993); T.B. Westex Foods, Inc. v. FDIC (In re T.B. Westex Foods, Inc.), 950 F.2d 1187 (5th Cir.1992); Ray v. City Bank & Trust Co. (In re C-L Cartage Co.), 899 F.2d 1490 (6th Cir.1990); Manufacturers Hanover Leasing Corp. v. Lowrey (In re Robinson Bros. Drilling, Inc.), 892 F.2d 850 (10th Cir.1989). Also, in The Travelers Insurance Company v. Cambridge Meridian Group, Inc. (In re Erin Food Services, Inc.) (“Erin”), 980 F.2d 792 (1st Cir.1992), the First Circuit assumed, without deciding, the correctness of Deprizio. In contrast, a few District and Bankruptcy Courts in the Second Circuit have rejected Deprizio. See, e.g., In" } ]

[ { "docid": "23645151", "title": "", "text": "findings made in connection with a decision to suppress evidence are reviewed for clear error, while mixed questions of law and fact and pure questions of law are reviewed de novo. Strache, 202 F.3d at 984; United States v. Faison, 195 F.3d 890, 893 (7th Cir.1999). When the government fails to demonstrate an exception to the warrant requirement, the evidence obtained through the search must be suppressed. United States v. Stefonek, 179 F.3d 1030, 1033 (7th Cir.1999); United States v. Legg, 18 F.3d 240, 242 (4th Cir.1994). A. Third-Party Consent Because a person may voluntarily waive his Fourth Amendment rights, no warrant is required where the defendant consents to a search. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Based on the concept of assumption of risk, this exception to the warrant requirement extends to consent legitimately obtained from a third party. Id.; United States v. Duran, 957 F.2d 499, 504 (7th Cir.1992). Thus, where a defendant allows a third party to exercise actual or apparent authority over the defendant’s property, he is considered to have assumed the risk that the third party might permit access to others, including government agents. Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. 988; United States v. Jensen, 169 F.3d 1044, 1049 (7th Cir.1999). Third-party consent to a search can legitimately be given whether the premises to be searched are as expansive as a house or as minute as a briefcase. The key to consent is actual or apparent authority over the area to be searched. See United States v. Aghedo, 159 F.3d 308, 310 (7th Cir.1998). Here, Friedman clearly had no actual authority over the contents of the briefcase, so that leaves only the possibility that Friedman had apparent authority to consent to the search. Under the apparent authority type of third-party consent, the government must show that a reasonable person, with the same knowledge of the situation as that possessed by the government agent to whom consent was given, would reasonably believe that the third party had authority over the area to be searched." } ]

[ { "docid": "10921604", "title": "", "text": "A. The Motions to Suppress Defendants’ first claim of error targets the district court’s denial of the motions to suppress without conducting an evidentiary hearing. A criminal defendant does not have a presumptive right to an evidentiary hearing on a motion to suppress. United States v. Brown, 621 F.3d 48, 57 (1st Cir.2010) (citing United States v. Panitz, 907 F.2d 1267, 1273 (1st Cir. 1990)). “A hearing is required only if the movant makes a sufficient threshold showing that material facts are in doubt or dispute, and that such facts cannot reliably be resolved on a paper record.... Most importantly, the defendant must show that there are factual disputes which, if resolved in his favor, would entitle him to the requested relief.” United States v. Staula, 80 F.3d 596, 603 (1st Cir.1996) (citations omitted). A district court’s denial of an evidentiary hearing is reviewed for abuse of discretion. Id.; United States v. Lewis, 40 F.3d 1325, 1332 (1st Cir.1994). In considering the denial of the motions to suppress, the district court’s factual findings are reviewed for clear error and its legal conclusions, including ultimate constitutional determinations, are reviewed de novo. Lewis, 40 F.3d at 1332-33 (citing United States v. Zapata, 18 F.3d 971, 975 (1st Cir.1994)). A search within the meaning of the Fourth Amendment “occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). A warrantless search is unreasonable unless one of the recognized exceptions to the warrant requirement applies. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The exclusionary rule, where applicable, requires suppression of evidence obtained in violation of the Fourth Amendment. Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 699, 172 L.Ed.2d 496 (2009). The focus of defendants’ appeal of the denial of the motions to suppress is the DSS agent’s accessing the Sprint PCS website and downloading and printing the pictures uploaded there. Because the Tipster was a private actor, her unauthorized viewing of" }, { "docid": "11124121", "title": "", "text": "de novo. United States v. Lenoir, 318 F.3d 725, 728 (7th Cir.2003). If consent to search is given by a third party it is incumbent upon the government to demonstrate by a preponderance of the evidence “that permission to search was obtained from a third party who possessed common authority over, or other sufficient relationship to, the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); see also United States v. Basinski, 226 F.3d 829, 834 (7th Cir.2000). Brown contends that the agents continued to search the Lincoln apartment without a warrant after they knew, or reasonably should have known, that they did not have valid consent to search. The government asserts that it was reasonable for the agents to believe that Lowery had the authority to consent. We agree with Brown. Lowery informed Deputy Davis that his only connection with the apartment was that he leased it for Brown as a favor; Lowery stated that he did not have keys to the apartment, had not paid any money for the apartment, and did not keep any belongings there. Common authority requires “mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the cohabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. 988. Although it is clear that Lowery could not consent to the search of Brown’s apartment, this is a hollow victory for Brown, because we find the evidence seized was properly admitted under the inevitable discovery doctrine. This doctrine allows the use of evidence if the government can show that the information “ultimately or inevitably would have been discovered by lawful means.” United States v. Gravens, 129 F.3d 974, 979 (7th Cir.1997). To demonstrate that a discovery was truly “inevitable,” the prosecution must establish that it" }, { "docid": "1429552", "title": "", "text": "Salimonu’s apartment. It is basic that “any intrusion upon a constitutionally-protected privacy interest without a proper warrant is per se unreasonable under the Fourth Amendment subject only to a few specifically established exceptions.” United States v. Donlin, 982 F.2d 31, 33 (1st Cir.1992) (internal quotation marks omitted). Consent is one such exception to the warrant requirement. Id.; see also Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In order for the consent to a warrantless search to be valid, however, the consent must come either from the defendant or “from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). The Court explained in Matlock that common authority requires mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. Id. at n. 7. It is common authority which gives the consenting party the ability to allow the government to conduct a search “even when the defendant specifically objects to it.” Donlin, 982 F.2d at 33. This common authority requirement reflects an important principle: the consenting party does not waive the defendant’s Fourth Amendment rights. Instead, the consenting party voluntarily consents to waive his or her own privacy interest in the property to be searched, thereby validating the government’s otherwise-proscribed warrant-less search. “The burden of establishing that common authority rests upon [the government].” Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). The district court erred in concluding that Picou had the requisite authority to consent to the search of Salimonu’s apartment. At the suppression hearing, it was established that Picou did not live there; none of her possessions was in the apartment; indeed," }, { "docid": "11124120", "title": "", "text": "and the officers found his clothes, money, and other belongings in the apartment. See 208 F.3d at 632. In addition, Stephon Lowery’s statements indicate that Brown was the sole tenant of the apartment. Since the drugs were found in readily accessible locations of the apartment that Brown alone was renting, there is sufficient evidence for the jury to have found that Brown had the “recognized au thority in his criminal milieu — to possess and determine the disposition of them.” See Windom, 19 F.3d at 1199; see also Richardson, 208 F.3d at 632; United States v. Jackson, 51 F.3d 646, 655 (7th Cir.1995); United States v. Hunte, 196 F.3d 687, 692 (7th Cir.1999); United States v. Pace, 898 F.2d 1218, 1223, 1246 (7th Cir.1990); United States v. Garza-Hernandez, 623 F.2d 496, 502 n. 6 (7th Cir.1980). B. Motion to Suppress Evidence — Lincoln Apartment When reviewing an appeal from a district court’s denial of a motion to suppress evidence, we examine the district court’s findings of facts for clear error and its conclusions of law de novo. United States v. Lenoir, 318 F.3d 725, 728 (7th Cir.2003). If consent to search is given by a third party it is incumbent upon the government to demonstrate by a preponderance of the evidence “that permission to search was obtained from a third party who possessed common authority over, or other sufficient relationship to, the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); see also United States v. Basinski, 226 F.3d 829, 834 (7th Cir.2000). Brown contends that the agents continued to search the Lincoln apartment without a warrant after they knew, or reasonably should have known, that they did not have valid consent to search. The government asserts that it was reasonable for the agents to believe that Lowery had the authority to consent. We agree with Brown. Lowery informed Deputy Davis that his only connection with the apartment was that he leased it for Brown as a favor; Lowery stated that he did not have keys to" }, { "docid": "6480897", "title": "", "text": "not appear to be drunk when she arrived at the scene later that day. The district court found that “the evidence did not support Richards’ contention that his uncle might have been so intoxicated on the day in question that he did not understand what was happening.” We agree with the district court’s conclusion. Based on objective facts that were known to the officers on December 8, 2009, they reasonably concluded that Rawls freely and voluntarily consented to the search of his home. Thus, we hold that the search of Rawls’ home falls within the consent exception to the warrant requirement and affirm the district court’s denial of Richards’ first motion to suppress. B. Richards’ Second Motion to Suppress Having recognized Rawls’ capacity to freely and voluntarily consent, our analysis turns to whether Rawls had the authority to consent to a search of the west bedroom. Whether Rawls had actual or apparent authority to consent to the search is a mixed question of law and fact, which we review de novo. Gevedon, 214 F.3d at 810. The government carries the burden of proof by a preponderance of the evidence that the officers reasonably believed that Rawls had sufficient authority over the west bedroom to consent to its search. United States v. Matlock, 415 U.S. 164, 177, n. 14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). A defendant assumes the risk that a co-occupant may expose a common area of a house to a police search, as long as the co-occupant possesses “common authority over or other sufficient relationship to the premises or effects sought to be inspected.” Matlock, 415 U.S. at 171, 94 S.Ct. 988. Common authority is not based on a property interest, but is a social concept based on whether the consenting person had joint access or control of the area being searched. Id. Because common authority is premised on mutual use, an ownership interest in the property to be searched does not necessarily suffice as actual authority on its own. United States v. Evans, 27 F.3d 1219, 1229-30 (7th Cir.1994). A houseguest has an expectation of privacy," }, { "docid": "13586553", "title": "", "text": "denied this motion on April 1, 2004. In this court, the Government filed a motion to stay further proceedings pending issuance of the mandate in United States v. Oliver, 397 F.3d 369 (6th Cir.2005), as the outcome there would bear- on Defendant’s sentencing, and for permission to file a supplemental brief. This motion was granted, and on August 22, 2005, the Government filed a letter brief addressing Defendant’s sentencing and the related Sixth Amendment issues. Defendant filed no response. II. MOTION TO SUPPRESS A. Standard of Review In reviewing a denial of a motion to suppress, we review the district court’s legal conclusions de novo and its findings of fact for clear error. United States v. Harris, 192 F.3d 580, 584 (6th Cir.1999). B. Third-Party Consent and Apparent Authority Where valid consent is given, a search is permissible under the Fourth Amendment even without a warrant or probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Such consent must be “freely and voluntarily given.” Id. at 222, 93 S.Ct. 2041 (quoting Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968)). Valid consent may be given not only by the defendant but also by “a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). We have held that even where third-party consent comes from an individual without actual authority over the property searched, there is no Fourth Amendment violation if the police conducted the search in good faith reliance on the third-party’s apparent authority to authorize the search through her consent. United States v. Hunyady, 409 F.3d 297, 303 (6th Cir.2005) (citing United States v. Gillis, 358 F.3d 386, 390 (6th Cir.2004)). “Apparent authority is judged by an objective standard. A search consented to by a third party without actual authority over the premises is nonetheless valid if the officers reasonably could conclude from the facts available that the third party had" }, { "docid": "14350791", "title": "", "text": "to the search. On remand, the district court issued an order attending to each of our concerns and setting forth findings of fact. United States v. Groves, No. 3:04cr0076, 2007 WL 171916 (N.D.Ind. Jan.17, 2007) (“Groves II”). The court again denied Groves’ Motion to Suppress, and Groves again appeals. In considering the district court’s denial of Groves’ Motion to Suppress, we review questions of law de novo and findings of fact for clear error. United States v. Denberg, 212 F.3d 987, 991 (7th Cir.2000). A warrantless search does not violate the Fourth Amendment if a person possessing, or reasonably believed to possess, authority over the premises voluntarily consents to the search. Randolph, 547 U.S. at 106, 126 S.Ct. 1515. “[T]he consent of one who possesses common authority over premises or effects is valid as against the absent, non-consenting person with whom that authority is shared.” United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). The rationale for this long-standing rule is that by allowing someone else to exercise actual or apparent authority over one’s property, one “is considered to have assumed the risk that the third party might permit access to others, including government agents.” United States v. Basinski, 226 F.3d 829, 834 (7th Cir.2000) (citing Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. 988; and United States v. Jensen, 169 F.3d 1044, 1049 (7th Cir.1999)). Because “ 'consent to a search may be obtained [from] any person who has common authority over the property’ ” Denberg, 212 F.3d at 991 (quoting United States v. Booker, 981 F.2d 289, 294 (7th Cir.1992)), the threshold question is whether the consenting individual did, in fact, have actual or apparent authority. See Basinski, 226 F.3d at 834 (“[t]he key to consent is actual or apparent authority over the area to be searched.”). In Groves I, we enumerated several factors which, although by no means a complete list, can inform a determination of actual or apparent authority. We reiterate those factors here, as well as our admonition that “[t]his is certainly not an exhaustive list and we" }, { "docid": "14350792", "title": "", "text": "or apparent authority over one’s property, one “is considered to have assumed the risk that the third party might permit access to others, including government agents.” United States v. Basinski, 226 F.3d 829, 834 (7th Cir.2000) (citing Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. 988; and United States v. Jensen, 169 F.3d 1044, 1049 (7th Cir.1999)). Because “ 'consent to a search may be obtained [from] any person who has common authority over the property’ ” Denberg, 212 F.3d at 991 (quoting United States v. Booker, 981 F.2d 289, 294 (7th Cir.1992)), the threshold question is whether the consenting individual did, in fact, have actual or apparent authority. See Basinski, 226 F.3d at 834 (“[t]he key to consent is actual or apparent authority over the area to be searched.”). In Groves I, we enumerated several factors which, although by no means a complete list, can inform a determination of actual or apparent authority. We reiterate those factors here, as well as our admonition that “[t]his is certainly not an exhaustive list and we do not mean to suggest that district courts should use this as a checklist of factors in determining actual or apparent authority. Rather, it is offered to show the types of facts that should and could be considered in evaluating the issue of authority to consent to a search” (Groves I, 470 F.3d at 319, n. 3): (1) possession of a key to the premises; (2) a person’s admission that she lives at the residence in question; (3) possession of a driver’s license listing the residence as the driver’s legal address; (4) receiving mail and bills at that residence; (5) keeping clothing at the residence; (6) having one’s children reside at that address; (7) keeping personal belongings such as a diary or a pet at that residence; (8) performing household chores at the home; (9) being on the lease for the premises and/or paying rent; and (10) being allowed into the home when the owner is not present. Id. at 319 (internal citations omitted). We remanded this issue to the district court because we had" }, { "docid": "3834655", "title": "", "text": "the government.” United States v. Erwin, 155 F.3d 818, 822 (6th Cir.1998) (en banc decision upholding the district court’s denial of a motion to suppress evidence that was found during a search of the defendant’s vehicle). A similar standard applies to the district court’s enhancement of Yoon’s sentence under the Sentencing Guidelines for obstruction of justice. The factual findings underlying the district court’s decision will be reversed only if clearly erroneous, but the legal interpretation of the Guidelines is reviewed de novo. United States v. Burke, 345 F.3d 416, 428 (6th Cir.2003) (upholding a sentencing enhancement for obstruction of justice). III. DISCUSSION A. Yoon’s Motion to Suppress The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. “[A] search or seizure carried out on a suspect’s premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of ‘exigent circumstances.’ ” Coolidge v. New Hampshire, 403 U.S. 443, 474, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (holding that a warrant issued by the state Attorney General who prosecuted the defendant was invalid). See also Illinois v. Rodriguez, 497 U.S. 177, 192, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (“The Court has often heard, and steadfastly rejected, the invitation to carve out further exceptions to the warrant requirement for searches of the home.... ”). The exception claimed by the government in this case is the doctrine of “consent once removed,” accepted by the Sixth Circuit in United States v. Pollard, 215 F.3d 643 (6th Cir.2000). According to Pollard, the police can enter a suspect’s premises to arrest the suspect without a warrant if [an] undercover agent or informant: 1) entered at the express invitation of someone with authority to consent; 2) at that point established the existence of probable cause to effectuate an arrest or search ; and 3) immediately summoned help from other officers. Pollard, 215 F.3d at 648, quoting United States v. Akinsanya," }, { "docid": "22566992", "title": "", "text": "attendant historical and legal refinements, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. at 993 (internal citations omitted); see also Frazier, 394 U.S. at 740, 89 S.Ct. at 1425 (“Petitioner argues that Rawls only had actual permission to use one compartment of the bag and that he had no authority to consent to a search of the other compartments. We will not, however, engage in such metaphysical subtleties in judging the efficacy of Rawls’ consent. Petitioner, in allowing Rawls to use the bag and in leaving it in his house, must be taken to have assumed the risk that Rawls would allow someone else to look inside.”); United States v. Basinski, 226 F.3d 829, 834 (7th Cir.2000) (“[W]here a defendant allows a third party to exercise actual or apparent authority over the defendant’s property, he is considered to have assumed the risk that the third party might permit access to others, including government agents.”). “For purposes of searches of closed containers, mere possession of the container by a third party does not necessarily give rise to a reasonable belief that the third party has authority to consent to a search of its contents.” Basinski, 226 F.3d at 834. “Rather, apparent authority turns on the government’s knowledge of the third party’s use of, control over, and access to the container to be searched, because these characteristics are particularly probative of whether the individual has authority over the property.” Id. Accordingly, we conduct a fact-specific inquiry to decide whether someone had actual or apparent authority to consent to a search. See Groves, 530 F.3d at 509-10; Basinski, 226 F.3d at 834-35 (observing that “it is less reasonable for a police officer to believe that a third party" }, { "docid": "22566993", "title": "", "text": "Basinski, 226 F.3d 829, 834 (7th Cir.2000) (“[W]here a defendant allows a third party to exercise actual or apparent authority over the defendant’s property, he is considered to have assumed the risk that the third party might permit access to others, including government agents.”). “For purposes of searches of closed containers, mere possession of the container by a third party does not necessarily give rise to a reasonable belief that the third party has authority to consent to a search of its contents.” Basinski, 226 F.3d at 834. “Rather, apparent authority turns on the government’s knowledge of the third party’s use of, control over, and access to the container to be searched, because these characteristics are particularly probative of whether the individual has authority over the property.” Id. Accordingly, we conduct a fact-specific inquiry to decide whether someone had actual or apparent authority to consent to a search. See Groves, 530 F.3d at 509-10; Basinski, 226 F.3d at 834-35 (observing that “it is less reasonable for a police officer to believe that a third party has full access to a defendant’s purse or a briefcase than, say, an open crate”). Because Eaton had the apparent authority to consent to a search of the computer case, the district court properly denied Defendant’s suppression motion. First, there is no evidence that Officer Dexheimer was aware of anything that would have alerted him that Eaton did not have authority to consent to the search. As such, the cases on which Defendant relies to argue lack of authority are easily distinguishable. See Basinski, 226 F.3d at 835 (before opening the case, “the agents learned that [the defendant] implicitly, if not explicitly, instructed [the third party] to never open the briefcase and to destroy its contents rather than allow anyone else to peer inside”); United States v. Jaras, 86 F.3d 383, 389 (5th Cir.1996) (“The government presented no evidence of joint access or control at the suppression hearing.”); United States v. Infante-Ruiz, 13 F.3d 498, 505 (1st Cir.1994) (someone consented to a general search of a car but stated, without indicating that he had authority" }, { "docid": "2612224", "title": "", "text": "A. STANDARD OF REVIEW The government contends on appeal that the district court erred in granting the defendants’ motions to suppress. In reviewing a district court’s decision regarding a motion to suppress evidence, we review all factual findings for clear error and all legal conclusions de novo. United States v. Yoon, 398 F.3d 802, 805 (6th Cir.2005). In particular, we review de novo the district court’s determinations that no exigency existed to justify the Hendersonville police officers’ warrantless entry into McClain’s home, that all subsequently seized evidence constituted the fruit of the initial illegal search, and that the good faith exception to the exclusionary rule does not apply to this evidence. See United States v. Rohrig, 98 F.3d 1506, 1511 (6th Cir.1996). B. LEGALITY OF THE WARRANT-LESS SEARCH We first address the legality of the warrantless search of McClain’s residence. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures .... ” U.S. Const, amend. IV. Because the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,” United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), “a search carried out on a suspect’s premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of ‘exigent circumstances.’ ” Coolidge v. New Hampshire, 403 U.S. 443, 474-75, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). More precisely, the police may not enter a private residence without a warrant unless both “probable cause plus exigent circumstances” exist. Kirk v. Louisiana, 536 U.S. 635, 638, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002) (per curiam); United States v. Chambers, 395 F.3d 563, 572 (6th Cir.2005). There is no dispute that the warrantless search of McClain’s home on October 12, was “presumptively unreasonable” under the Fourth Amendment. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The government, however," }, { "docid": "23679227", "title": "", "text": "exceptions, however. “[0]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). “The [Fourth Amendment] prohibition does not apply ... to situations in which voluntary consent has been obtained, either from the individual whose property is searched or from a third party who possesses common authority over the premises.” Rodriguez, 497 U.S. at 181, 110 S.Ct. 2793 (citations omitted). A third party’s consent to search is valid if that person has either the “actual authority” or the “apparent authority” to consent to a search of that property. United States v. Gutierrez-Hermosillo, 142 F.3d 1225, 1230 (10th Cir.1998) (citing Rodriguez, 497 U.S. at 188, 110 S.Ct. 2793). The test for “actual authority” was articulated in United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), and interpreted by the Tenth Circuit in United States v. Rith, 164 F.3d 1323, 1329 (10th Cir.1999). In Rith, we stated that “a third party has authority to consent to a search of property if that third party has either (1) mutual use of the property by virtue of joint access, or (2) control for most purposes over it.” Id. Therefore, the gravamen of the “actual authority” rule is that it is reasonable to recognize that “any of the co-habitants has the right to permit the inspection in his own right- and ..-. the others have assumed the risk that one of their number might permit the common area to be searched.” Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. 988. The Supreme Court set forth the test for “apparent authority” in Rodriguez, 497 U.S. at 186-88, 110 S.Ct. 2793. “Rodriguez held that the Fourth Amendment is not violated when officers enter without a warrant when they reasonably, although erroneously, believe that the person who consents to their entry has the authority to consent to this entry.” Gutierrez-Hermosillo, 142 F.3d at 1230. The “apparent authority” test for determining the reasonableness of" }, { "docid": "13578439", "title": "", "text": "come to his attention because that evidence could have been used to his advantage; (6) that Mrs. Harrison’s testimony regarding her calls to Detective Penberg was inadmissible because it was given in response to questions by the prosecution calling for hearsay answers; and (7) that the “ledger” sheet was inadmissible and irrelevant because it set out past poker winnings, not money secured through drug dealings as alleged. We find all of these arguments to be without merit. A. Seizure of the Evidence It is “well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). See also Coolidge v. New Hempshire, 403 U.S. 443, 487-90, 91 S.Ct. 2022, 2048-50, 29 L.Ed.2d 564 (1971) and Davis v. United States, 328 U.S. 582, 593-94, 66 S.Ct. 1256, 1261, 1262, 90 L.Ed. 1453 (1945). This exception to the warrant requirement is not limited to consent by a defendant as noted in United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1974): [W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed a common authority over or other sufficient relationship to the premises or effects sought to be inspected. “Common authority” is defined as resting— on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the coinhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. Id. at 171 n.7, 94 S.Ct. at 993 n.7. Consent by third parties with common authority over the premises searched “is valid against the absent, nonconsenting person with" }, { "docid": "7313370", "title": "", "text": "Cir. 1965). The Eighth Circuit has recognized the validity of third-party consent searches in several circumstances. United States v. Martinez, 450 F.2d 864 (8th Cir. 1971) (owner of garage may consent to search of garage where defendant stored contraband); Wright v. United States, 389 F.2d 996 (8th Cir. 1968) (eo-oceupier of apartment may consent to search of apartment) ; Drum-mond v. United States, supra (owner of home and garage as against occupier and lessee); Roberts v. United States, 332 F.2d 892 (8th Cir. 1964) (husband and wife). Thus in a third-party consent search the waiver of personal fourth amendment rights by one party may act as a binding waiver of the personal fourth amendment rights of the party against whom the search was intended. Anderson v. United States, 399 F.2d 753, 756 (10th Cir. 1968). The Supreme Court in Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), has implicitly, and more recently in United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 993, 39 L.Ed.2d 242 (1964), explicitly recognized the right of a third party to consent to a warrantless search of property to which he has “joint access or control for most purposes.” See Schneckloth v. Bustamonte, 412 U.S. 218, 245-246, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 487-490, 91 S.Ct. 2022, 29 L.Ed. 564 (1971). In Matlock, supra, 415 U.S. at 171, 94 S.Ct. at 993, the Court held: [W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effect sought to be inspected. (Emphasis added.) Justice White clarified what the Court meant by “common authority” in a footnote to the cited sentence. Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies" }, { "docid": "6299166", "title": "", "text": "government argues, a recognized exception to the warrant requirement was present: third party consent. Because a person may voluntarily waive his Fourth Amendment rights, no warrant is required where the defendant consents to a search. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Based on the concept of assumption of risk, that exception to the warrant requirement extends to consent legitimately obtained from a third party. Id.', United States v. Duran, 957 F.2d 499, 504 (7th Cir.1992). Thus, where a defendant allows a third party to exercise actual or apparent authority over the defendant’s property, he is considered to have assumed the risk that the third party might permit access to others, including government agents. Matlock, 415 U.S. at 171, 94 S.Ct. 988 n. 7; United States v. Jensen, 169 F.3d 1044, 1048-49 (7th Cir.1999). James agrees that if Martin had actual or apparent authority to consent to the seizure of James’s property, and if Martin actually consented voluntarily, then no constitutional violation occurred here. James argues, however, that Martin had neither actual nor apparent authority to consent. In addition, he argues that even if Martin did have authority to consent, she did not actually do so voluntarily. We turn first to whether Martin had actual or apparent authority to consent. The government has the burden of proving authority to consent by a preponderance of the evidence. United States v. Denberg, 212 F.3d 987, 991 (7th Cir.2000) (citing Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)). Consent to a search or seizure may be obtained from any person who has common authority over the property (actual authority), Denberg, 212 F.3d 987, 991 (7th Cir.2000), or who would appear to a reasonable person, given the information that law enforcement possessed, to have common authority over the property (apparent authority). United States v. Basinski, 226 F.3d 829, 834 (7th Cir.2000). In the search context, the Supreme Court has expounded: “The authority which justifies the third-party consent ... rests rather on mutual use of the property by persons generally having" }, { "docid": "6299165", "title": "", "text": "the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized.” United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). However, because the Fourth Amendment, at bottom, prohibits only “unreasonable” seizures, the Supreme Court has recognized that a balancing must take place, and that there are instances where societal interests outweigh the individual’s right to be free from the government’s unauthorized exercise of dominion over his private property. Id at 701-03, 103 S.Ct. 2637; Jacobsen, 466 U.S. at 125, 104 S.Ct. 1652. For instance, if “law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant,” seizure of the property is permitted “pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.” Place, 462 U.S. at 701, 103 S.Ct. 2637. Here, the government argues, a recognized exception to the warrant requirement was present: third party consent. Because a person may voluntarily waive his Fourth Amendment rights, no warrant is required where the defendant consents to a search. United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). Based on the concept of assumption of risk, that exception to the warrant requirement extends to consent legitimately obtained from a third party. Id.', United States v. Duran, 957 F.2d 499, 504 (7th Cir.1992). Thus, where a defendant allows a third party to exercise actual or apparent authority over the defendant’s property, he is considered to have assumed the risk that the third party might permit access to others, including government agents. Matlock, 415 U.S. at 171, 94 S.Ct. 988 n. 7; United States v. Jensen, 169 F.3d 1044, 1048-49 (7th Cir.1999). James agrees that if Martin had actual or apparent authority to consent to the seizure of James’s property, and if Martin actually consented voluntarily, then no constitutional violation occurred here. James argues, however," }, { "docid": "11699238", "title": "", "text": "S.Ct. 2793, 111 L.Ed.2d 148 (1990). The exclusionary rule preventing the use of evidence obtained in violation of this amendment protects its guarantees by “ ‘deterring lawless conduct by federal officers,’ and by ‘closing the doors of the federal courts to any use of evidence unconstitutionally obtained.’ ” Brown, v. Illinois, 422 U.S. 590, 599, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) (quoting Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). The fourth amendment’s prohibition on warrantless entry into a person’s home does not apply, however, when voluntary consent to enter is obtained either from the person whose property is searched, see Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), or from someone, such as a spouse, with actual or apparent authority over the premises, United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); United States v. Aghedo, 159 F.3d 308, 310 (7th Cir.1998). Thus, had Winston, Mr. Fields’s wife, voluntarily allowed the officers to enter the apartment, the entry would have been lawful. However, the district court made no such finding. When reviewing appeals from denials of motions to suppress, we review legal questions de novo and factual findings for clear error. United States v. Breland, 356 F.3d 787, 791 (7th Cir.2004). Whether Winston consented to the officers’ entry into the apartment is a question of fact. See United States v. Pedroza, 269 F.3d 821, 829 (7th Cir.2001). Recognizing that as a reviewing court, we “ ‘must constantly have in mind that [our] function is not to decide factual issues de novo,’ ” United States v. Brown, 79 F.3d 1499, 1510 (7th Cir.1996) (quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)), we cannot ourselves decide the lawfulness of the officers’ entry. Importantly, the determination of whether the officers’ entry was lawful requires decisions about the weight of evidence and the credibility of witnesses, determinations which Congress has assigned to the district courts. See id. at 1509-10 (citing United" }, { "docid": "2202500", "title": "", "text": "authority consents to the search. The district court held that it does and granted Henderson’s motion to suppress. Our review of the court’s legal conclusions is de novo; factual findings and mixed questions of law and fact are reviewed for clear error. United States v. Parker, 469 F.3d 1074, 1077 (7th Cir.2006). A warrantless search of a home is considered per se unreasonable and a violation of the Fourth Amendment unless an established exception applies. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One such exception is voluntary consent given by a person with authority. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). This includes the defendant as the occupant of the home or premises as well as any third parties who have “common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); see also United States v. Fields, 371 F.3d 910, 914 (7th Cir.2004) (finding consent may be obtained “either from the person whose property is searched, or from someone, such as a spouse, with actual or apparent authority over the premises”) (citations omitted). Henderson contends that his objection to the search, like that of the defendant in Randolph, overrode the consent given by Patricia. In Randolph the defendant’s wife, Janet Randolph, called police and told them her husband, Scott Randolph, had taken their son away after a domestic dispute. The couple had recently separated, and when officers arrived at the family home, Janet told them she had just returned with her son after an extended stay with her parents in Canada and that her husband was a cocaine user. Randolph arrived shortly thereafter and explained that he took his son to a neighbor’s so that Janet couldn’t take him away again. He denied cocaine use and refused an officer’s request to search his home. The officer then turned to Janet and asked for her consent to search, which she granted. The search turned up" }, { "docid": "23259877", "title": "", "text": "in which he argued that his Fourth and Fifth Amendment rights were violated. We “review!] the District Court’s denial of a motion to suppress for clear error as to the underlying factual findings and exercise! ] plenary review of the District Court’s application of the law to those facts.” United States v. Perez, 280 F.3d 318, 336 (3d Cir.2002). A. King claims the police violated the Fourth Amendment when they entered his house on February 19, 2004 and seized his hard drive without a warrant or his consent. He does not dispute that Larkin consented to the seizure of her computer, which included the hard drive that King had installed. Nor does the Government dispute that King objected to the seizure of his hard drive and asked agents for the opportunity to remove it from Larkin’s computer. These facts present a novel question of law: when an owner of a computer consents to its seizure, does that consent include the computer’s hard drive even when it was installed by another who claims ownership of it and objects to its seizure? Answering the pivotal question in the negative, King relies on Georgia v. Randolph, where the Supreme Court held that police cannot search a home based on one resident’s consent when another resident objects to the search. 547 U.S. at 122-23, 126 S.Ct. 1515. The District Court considered this argument and rejected it, relying on United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974), where the Supreme Court held that granting a third party “common authority” over personalty “assumefs] the risk” that the third party will consent to its search. Id. at 170-71, 94 S.Ct. 988. Although both Randolph and Matlock bear on our decision in this appeal, we find neither one controlling because the facts of this case place it somewhere between those cases. In Matlock, the Supreme Court established that consent from one with “common authority ... is valid as against the absent, nonconsenting person with whom that authority is shared.” 415 U.S. at 170-71 & n. 7, 94 S.Ct. 988 (emphasis added). The" } ]

[ { "docid": "9546438", "title": "", "text": "is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay are not enough. Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (citation omitted) (emphasis in original). Moreover, Judge Shoob of this Court denied a similar motion on these grounds. Judge Shoob, in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. de Liniere, 512 F.Supp. 246 (N.D.Ga.1983), expressly rejected the argument that a brokerage firm suffers anything other than economic loss when a departing broker seeks to solicit and service his clients: [T]he Court finds that any loss of business to Merrill Lynch may be adequately redressed with money damages for breach of contract. The only possible irreparable result would be some vaguely defined loss of business momentum but the Court finds that to be unrealistic in the securities field. The real loss is in commission revenue generated by [the departing broker] from former... customers, and that can be readily calculated from the commissions he and his new firm derived from [those customers]. Id. at 249. The cognizable injury to brokerage firms such as Plaintiff is lost commissions. Money damages easily compensate Plaintiffs for this type of loss. The securities industry is highly regulated. Each individual transaction is monitored electronically. Every customer transfer from Morgan Stanley is documented. Every executed trade is recorded. Every dollar earned in fees by Defendants Frisby and Lovell doing business with those customers that Morgan Stanley considers its own can be traced precisely. Any loss Morgan Stanley might suffer as a result of Defendants’ departure is calculable. Merrill Lynch, Pierce, Fenner & Smith v. Bennert, 980 F.Supp. 73, 75 (D.Me.1997) (damages caused by the exodus of multiple brokers to a competing brokerage firm could be calculated by evidence of past history of the earnings on accounts and expert testimony). Plaintiff has failed to demonstrate irreparable harm if a temporary restraining order is not issued. B. LIKELIHOOD OF SUCCESS ON THE MERITS Morgan Stanley contends that the non-solicitation covenant Defendants signed is a legally enforceable agreement not to solicit certain" } ]

[ { "docid": "773297", "title": "", "text": "that the company would not hesitate to resort to legal means in order to enforce the Trainee Agreement, and to prevent Roodveldt from soliciting Merrill Lynch clients. The next day, June 22, 1983, Roodveldt learned that Merrill Lynch planned to file suit against her based on alleged violations of the Trainee Agreement and other related claims pertaining to her conduct as a Merrill Lynch employee. Upon receiving this information, Roodveldt sent a demand to the New York Stock Exchange, requesting that all claims by Merrill Lynch against her be arbitrated, as mandated by paragraph 5 of the Trainee Agreement. Merrill Lynch did file suit against Rood-veldt, in the Court of Common Pleas of Montgomery County, Pennsylvania, seeking special, preliminary and permanent in-junctive relief and money damages. In response, Roodveldt submitted to that court a petition for stay of proceedings pending arbitration. On June 23, 1983, the Montgomery County Court of Common Pleas, without explicitly denying the petition for stay, issued a temporary restraining order against Roodveldt. Judge Albert R. Subers found, inter alia, that Merrill Lynch would suffer irreparable harm and loss if Roodveldt were permitted to continue soliciting Merrill Lynch accounts, clients and customers for her new employer. Merrill Lynch Pierce Fenner & Smith v. Stephany Roodveldt, No. 83-09272, (Ct.C.P., Montgomery County June 23, 1983) (issuing temporary restraining order). Judge Subers required Merrill Lynch to post $50,-000 security, as a condition to obtaining such relief. A preliminary injunction hearing began on June 28, 1983, and concluded July 7, 1983. On July 7, 1983, Judge Subers issued an opinion and order which enjoined Roodveldt from “[sjoliciting any business from any clients of Merrill Lynch whom defendant [Roodveldt] served or whose names became known to defendant while in the employ of Merrill Lynch.” Merrill Lynch Pierce Fenner & Smith v. Stephany Roodveldt, No. 83-09272, (Ct.C.P., Montgomery County July 7, 1983) (order granting preliminary injunction). In addition, he ordered the establishment of an escrow account, to contain all commissions and fees earned by Roodveldt on transactions between her and former Merrill Lynch customers. Judge Subers ordered the preliminary injunction to remain in" }, { "docid": "9546433", "title": "", "text": "by or whose names became known to the Employee while in the employ of [Morgan Stanley] with respect to securities, commodities, financial futures, insurance, tax advantaged investments, mutual funds or any other line of business in which [Morgan Stanley] or any of its affiliates is engaged. (Morgan Stanley Dean Witter Financial Advisor Trainee Employment Agreement, Exhibit 1 to Plaintiffs’ Motion for Temporary Restraining Order). A. IRREPARABLE HARM Morgan Stanley argues it is entitled to a temporary restraining order because the injury to its business caused by Defendants’ solicitation of Morgan Stanley’s customers is imminent and irreparable. In the days following Defendants’ resignation, Morgan Stanley collected evidence that the Defendants began to contact and solicit the customers with whom they worked while employed at Morgan Stanley. In the time between Defendants’ resignations and the filing of this motion, several customers had already contacted Morgan Stanley to transfer their accounts to Defendants at PaineWebber. Additionally, Plaintiff alleges that the Defendants left Morgan Stanley without means to prevent the loss of its customers. Plaintiff specifically attributes to Defendants the deliberate manipulation of Morgan Stanley’s customer database to reflect incorrect phone numbers and contact information for customers serviced by Defendants. Plaintiff asserts that the‘loss of valuable customer relationships and good-will, which is on-going and cannot be adequately addressed by monetary damages, is sufficient to show irreparable harm to their company. It relies upon cases such as Poe & Brown of Ga., Inc. v. Gill, 268 Ga. 749, 750, 492 S.E.2d 864 (1997) (stating company would suffer irreparable harm due to former employee’s solicitation of customers because loss of customer results in injury that cannot be quantified); Merrill Lynch, Pierce, Fenner & Smith v. Schwartz, 991 F.Supp. 1480, 1482 (M.D.Ga.1998) (“[I]n the rush to solicit clients... even a few days can suffice to cause irreparable injury in the way of lost clients and reputation in the community. Thus, even [if the court’s decision] stands for only a very short while, perhaps two to three business days, this may make a considerable difference to plaintiffs ability to reap the benefit of its bargain through enforcement of" }, { "docid": "23057803", "title": "", "text": "harm in the loss of its customers”); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Patinkin, 1991 WL 83163 at *6, 1991 U.S.Dist. LEXIS 6210 at *16 (N.D.Ill. May 3, 1991) (noting that Merrill Lynch “suffers irreparable harm from the solicitation and loss of its clients, and that this is a harm for which there is no adequate legal remedy”). Moreover, although the defendants would likely suffer some harm during the pendency of the TRO, the court was warranted in determining that the denial of the TRO would inflict greater injury upon Merrill Lynch than the granting of the TRO would inflict upon the defendants. See Patinkin, at *6, 1991 U.S.Dist. LEXIS 6210 at *16 (stating that Merrill Lynch’s potential harm “on several levels, is enormous”). The TRO served to maintain the status quo without prejudice to the merits of any of the parties’ claims or defenses until an arbitration panel could consider the issues presented. Blumenthal, 910 F.2d at 1052-53 (noting that arbitration can become a “hollow formality” absent a court’s ability “to preserve the meaningfulness of the arbitration”); Teradyne, 797 F.2d at 51; Bradley, 756 F.2d at 1053-54. We are unable to conclude that the district court abused its discretion in granting a TRO enjoining the defendants from soliciting any business from Merrill Lynch clients and from disclosing. Merrill Lynch records. The case law does not clearly resolve, however, the extent to which the district court’s authority to grant injunctive relief extended beyond the initial November 4 TRO. Although we decline to follow the approach of the Eighth Circuit, which found a district court’s grant of any injunctive relief in an arbitrable dispute to be an abuse of discretion, see Hovey, 726 F.2d at 1291-92, we do not go so far as to determine that that authority extends ad infinitum. A reasonable limitation is set forth in Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Patinkin, 1991 WL 83163 at *4, 6,1991 U.S.Dist. LEXIS 6210 at *13, 20 (N.D.Ill. May 3, 1991), a district court case with facts similar to the case before us. Although the court granted" }, { "docid": "23057802", "title": "", "text": "involving arbitration agreements, we now consider whether the district court erred in granting the initial TRO in the specific circumstances before us. Our review in this regard is deferential, and we examine the district court’s balancing of the equities only for an abuse of discretion. Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas Railroad Co., 363 U.S. 528, 535, 80 S.Ct. 1326, 1330, 4 L.Ed.2d 1379 (1960). Moreover, the district court’s findings of fact will not be set aside unless clearly erroneous, although we examine conclusions of law de novo. Wright and Miller, Federal Practice and Procedure § 2962 at 633-36 (1973 and Supp.1993). As to the district court’s original decision, the available evidence — indicating that Salvano and Coon took various documents and information pertaining to Merrill Lynch’s clients and used that information to solicit Merrill Lynch customers — sufficiently supports the court’s determinations regarding irreparable harm and the inadequacy of Merrill Lynch’s legal remedy. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048, 1055 (4th Cir.1985) (“Merrill Lynch faced irreparable, noncom-pensable harm in the loss of its customers”); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Patinkin, 1991 WL 83163 at *6, 1991 U.S.Dist. LEXIS 6210 at *16 (N.D.Ill. May 3, 1991) (noting that Merrill Lynch “suffers irreparable harm from the solicitation and loss of its clients, and that this is a harm for which there is no adequate legal remedy”). Moreover, although the defendants would likely suffer some harm during the pendency of the TRO, the court was warranted in determining that the denial of the TRO would inflict greater injury upon Merrill Lynch than the granting of the TRO would inflict upon the defendants. See Patinkin, at *6, 1991 U.S.Dist. LEXIS 6210 at *16 (stating that Merrill Lynch’s potential harm “on several levels, is enormous”). The TRO served to maintain the status quo without prejudice to the merits of any of the parties’ claims or defenses until an arbitration panel could consider the issues presented. Blumenthal, 910 F.2d at 1052-53 (noting that arbitration can become a “hollow formality” absent a court’s ability “to preserve" }, { "docid": "98384", "title": "", "text": "damages”). Nonetheless, showing that the harm suffered will be irreparable by the award of monetary damages is a common means of showing that the legal damages remedy is inadequate. See Crutchfield, 192 F.Supp.2d at 456 n. 16. Thus, the question presented on this factor is whether Safeway’s alleged harm can be adequately compensated through the award of monetary damages. Safeway argues that money damages are inadequate here because the actual damages are difficult to ascertain. See Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 22 F.3d 546, 551 (4th Cir.1994) (holding that “generally irreparable injury is suffered when monetary damages are difficult to ascertain or inadequate”) (citation omitted); Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189, 196-196 (4th Cir.1977) (holding that the award of damages based on “past profits” would not adequately compensate plaintiff for the damage to goodwill, which was “incalculable.”). Here, Safeway contends that, just as in Multi-Channel and Blackwelder, the closing of the parking structure will result in the loss of future customers and the harm to Safeway’s general goodwill, that these losses are difficult to calculate and quantify, and thus that damages are inadequate. Although Multi-Channel and Black-welder contain broad language regarding the availability of injunctive relief when the loss of future customers or harm to goodwill renders the calculation of damages difficult, neither holds that injunctive relief is automatic and required in such circumstances. Thus, the Multi-Channel opinion states that when the failure to grant an injunction “creates the possibility of permanent loss of customers to a competitor or the loss of goodwill, the irreparable injury prong is satisfied.” MultiChannel, 22 F.3d at 552 (citing Merrill Lynch, Pierce, Fenner and Smith v. Bradley, 756 F.2d 1048, 1055 (4th Cir.1985)). The Blackwelder opinion holds that “[i]rre-parability of harm includes the impossibility of ascertaining with any accuracy the extent of the loss.” Blackwelder, 550 F.2d at 197. Yet, in both cases the Fourth Circuit proceeds to analyze the specific facts of the case before determining that the loss of future customers or the harm to goodwill makes damages difficult to ascertain. In Multi-Channel," }, { "docid": "6598427", "title": "", "text": "of one year following my termination I will not solicit ... any Account whom I served or whose name became known to me during my employment at Merrill Lynch in any office or in any capacity.” Id. ¶ 2. Plaintiff alleges that Defendant violated the provisions of the Agreement by conduct including the removal of documents and information from Merrill Lynch, the transmission of such information to a competitor, Tucker Anthony, Inc. (“Tucker Anthony”), and the solicitation of Merrill Lynch clients. See Complaint ¶ 21. Plaintiff asserts irreparable injury in the form of a) Disclosure of trade secrets, customer lists, and other confidential information which is solely the property of Merrill Lynch and its clients; b) Loss of confidentiality of clients’ records and financial dealings, loss of confidence and trust of clients, loss of goodwill, and loss of business reputation; c) Loss of personnel and threat to office stability; d) Present economic loss, which is unascertainable at this time, and future economic loss, which is presently incalculable. Id. ¶ 26. Plaintiff further asserts that it has no adequate remedy at law. See id. ¶27. II. In Merrill Lynch, Pierce, Fenner & Smith v. Bishop, 839 F.Supp. 68, 70 (D.Me.1993), the Court reiterated the well-established requirements for preliminary injunctions. To award preliminary injunctive relief, [t]he Court must find: (1) that the plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which the granting of injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the motion. Id. (citations omitted). These requirements extend to requests for temporary injunctive relief. Id. (citations omitted). In Bishop, the Court elaborated upon the element of irreparable injury: In order to make a suitable showing of irreparable injury, the moving party must establish a colorable threat of immediate injury, see Massachusetts Coalition of Citizens With Disabilities v. Civil Defense Agency, 649 F.2d 71, 74 (1st Cir., 1981), and the absence of any adequate remedy" }, { "docid": "471208", "title": "", "text": "that [t]he injury here is such that damages could not' adequately compensate. Were defendants permitted by the law to exploit the clientele of their former employers, every investment that reasonably flowed from the exploitation should be included in the damages award. How such a figure could be arrived at escapes us. Id., at 1102. See also, Merrill Lynch v. Bradley, 756 F.2d 1048 (4th Cir.1985); Valco, supra, 24 Ohio St.3d at 47-48, 492 N.E.2d 814 (“injunctions are, of course, the appropriate remedy to restrain the continued and future use, or threatened use of misappropriated trade secrets”). Plaintiffs’ point is well taken that “[i]t is impossible to determine at this time the numbers of Merrill Lynch clients who will be pirated away by Kramer, nor is it possible to determine with any degree of certainty the commissions each of these clients will generate.” Plaintiffs argue with equal, strength that irreparable and immeasurable harm lies in the fact that Merrill Lynch clients, when they discover that their financial information, market transactions, and investment assets which they presumed were held in confidence have been disclosed, will lose trust and confidence in Merrill Lynch. Finally plaintiff argues convincingly that injunctive relief is required to protect it from similar conduct by other employees and to discourage competitor firms, such as Kem-per, from paying such employees large sums of money to induce them to breach their contracts, to confiscate confidential client records and to divert those clients to the competitor. The Court finds that Merrill Lynch would be irreparably harmed by Kramer’s actions and that there is no adequate remedy at law. C. The Impact on Public Interest In this case, the overriding public interest is the honoring and enforcement of noncom-pete agreements set forth in employment contracts providing the restrictions in the agreements are reasonable. In this case, the restriction upon Mr. Kramer is limited to his existing customers and then only for a period of one year. There is nothing in the agreement which prohibits Mr. Kramer from continuing with his occupation as a broker in the securities industry. There is no geographical limitation." }, { "docid": "9546457", "title": "", "text": "Securities v. Plunkett, 8 F.Supp.2d 514, 520 (E.D.Va.1998) noted that the broker-client relationship was similar to that of attorney-client or doctor-patient. Personal trust and confidence pervades each of these relationships, and “[clients should be free to deal with the broker of their choosing and not subjected to the turnover of their accounts to brokers associated with the firm but unfamiliar to the client, unless the client gives informed consent to the turnover.” Id. When considering the public interest factor of a request for equitable relief in this context, Georgia courts recognize the importance of the “public’s ability to choose the professional services it prefers.” Singer, 250 Ga. at 377, 297 S.E.2d 473. “The public has little interest in having its choice restricted to brokers other than the one who has served them, pending the resolution of this dispute.” de Liniere, 572 F.Supp. at 249 (emphasis in original). In a time of market volatility, the inability of a client to consult a trusted advisor for even a single day could result in enormous financial losses to the client. This danger outweighs any injury to the Plaintiff that may occur due to the disloyalty of its former employees. Issuance of a temporary restraining order in this case is not in the public interest. IV. CONCLUSION For the reasons set forth above, the Motion for Temporary Restraining Order [Doc. 2-1] is DENIED. . Morgan Stanley was formerly known as Dean Witter Reynolds, Inc. . The Court respectfully disagrees with others who have reached a different conclusion in similar cases. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048 (4th Cir.1985); Wells v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 919 F.Supp. 1047 (E.D.Ky.1994)." }, { "docid": "22936041", "title": "", "text": "within its discretion in concluding that the balance of hardship test tips decidedly in Merrill Lynch’s favor because Bradley did not establish that the preliminary injunction pending expedited arbitration would cause him harm and because Merrill Lynch faced irreparable, noncompensable harm in the loss of its customers. This court has recognized that “irreparability of harm includes the ‘impossibility of ascertaining with any accuracy the extent of the loss.’ ” Blackwelder Furniture Co., 550 2d at 197 (quoting Foundry Services Inc. v. Beneflux Corp., 206 F.2d 214, 216 (2d Cir.1953)). Thus, the district court implicitly found that arbitration of this dispute would be a hollow formality absent preliminary relief. Accordingly, the order of the district court is AFFIRMED. . This situation represents a recurring problem. In their briefs to this Court the parties have cited sixty-four (64) federal and state cases involving similar fact patterns. Most of these decisions are unreported. Because of this problem, Merrill Lynch recently has changed its Account Executive Agreement to provide expressly for a preliminary injunction pending arbitration. . Accord, Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Shubert, 577 F.Supp. 406 (M.D.Fla.1983); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. de Liniere, 572 F.Supp. 246 (N.D.Ga.1983); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. DeCaro, 577 F.Supp. 616 (W.D.Mo.1983); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Thomson, 574 F.Supp. 1472 (E.D.Mo.1983); Smith v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 575 F.Supp. 904 (N.D.Tex.1983); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. McCollum, 666 S.W.2d 604 (Tex.App.1984). . For example, 28 U.S.C. § 2283 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. (emphasis added). See also 11 U.S.C. § 362(a)(1) (filing of bankruptcy petition operates as a stay of any \"judicial, administrative, or other proceeding against the debtor\"). . In Hovey the Eighth Circuit did not mention the language of § 3. . Section 4 of the Norris-LaGuardia Act provides," }, { "docid": "4233398", "title": "", "text": "with the district court that there was no showing of such a fiduciary relationship. In the absence of that relationship, Lehman Brothers cannot have been obligated to advise plaintiffs of adverse developments after their purchases that affected their Nucorp securities. See Chiarella v. United States, 445 U.S. 222, 230, 100 S.Ct. 1108, 1115, 63 L.Ed.2d 348 (1980) (liability for nondisclosure is premised on a duty to disclose). A stockbroker is an agent of his client. As an agent he has a duty to give any information relevant to the affairs entrusted to him of which he has notice. Restatement (Second) of Agency § 381 (1958). Caravan, however, had a non-discretionary account with Lehman Brothers. Normally the agency relationship created by a non-discretionary account arises when the client places an order and terminates when the transaction ordered is complete. Robinson v. Merrill Lynch, Pierce, Fennner & Smith, Inc., 337 F.Supp. 107, 111 (N.D.Ala.1971), aff'd, 453 F.2d 417 (5th Cir. 1972). The stockbroker assumes no continuing obligation to advise his clients of information that affects their securities. Leib v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 461 F.Supp. 951, 953 (E.D.Mich.1978). The district court denied plaintiffs discovery on the fiduciary duty claims because they failed to offer any proof that Lehman Brothers owed a fiduciary duty to the Caravan trusts after the Nucorp purchases. There was no showing that defendants exercised continuing control over Caravan’s account or acted as investment counselors. See Leboce, S.A. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 709 F.2d 605, 607 (9th Cir.1983) (California law imposes a fiduciary duty “where the agent ‘for all practical purposes’ controls the account”). Because plaintiffs have offered no evidence that Lehman Brothers owed them a continuing duty to advise them about Nucorp developments, the district court properly held that defendants were entitled to judgment as a matter of law on Caravan’s purported federal claim based on breach of fiduciary duty. Finally, plaintiffs make a far-reaching argument that Rule 10b-5 liability should extend to multi-service securities firms whenever they sell the securities of corporations for which they serve as investment bankers or" }, { "docid": "5922360", "title": "", "text": "on May 1, 2000. On May 3, 2000, we held a preliminary injunction hearing. In order to obtain the extraordinary remedy of a preliminary injunction, Smith Barney must establish that there is a reasonable likelihood that it will succeed on the merits and that it is reasonably likely to suffer irreparable harm if relief is denied. We must also consider whether in-junctive relief will cause the defendant irreparable injury and whether granting the preliminary relief is in the public interest. See Adams v. Freedom Forge Corp., 204 F.3d 475, 484, 487 (3d Cir.2000). I. Based upon the evidence presented at the May 3, 2000 hearing, held in accordance with Rule 65 of the Federal Rules of Civil Procedure, we find the following. Stewart Vockel has worked as a bond trader or financial consultant for a number of years. Merrill Lynch, Pierce, Fenner & Smith, Inc. (“Merrill Lynch”) hired him as a financial consultant in 1991. He left-Merrill Lynch and started with the Philadelphia branch of Smith Barney in November, 1994. In late January, 2000, Vockel approached his long-time acquaintance Elliott Goodfriend, who is the Philadelphia Branch Manager for Paine Webber Inc. (“Paine Webber”), about the possibility of moving from Smith Barney to Paine Web-ber. On approximately March 28, 2000 Paine Webber made Vockel an offer of employment, which included a sizeable signing bonus. Vockel accepted. In early April, approximately one week after Vockel received the offer, the administrative manager in Paine Webber’s Philadelphia office, Jim Checksfield, told Vockel that Paine Webber needed his Smith Barney client account statements. On or about April 19, 2000, while still employed by Smith Barney and without asking for permission from it or any of his clients, Vockel provided to Paine Webber the account statements for 254 of the 470 accounts he was servicing at Smith Barney. Paine Webber forwarded this material to an outside firm which, at Paine Webber's expense, prepared solicitation packages and then mailed them to the account holders. The solicitation package contained a cover letter drafted and signed by Vockel, an account transfer form with each client’s Smith Barney account number(s)" }, { "docid": "9546439", "title": "", "text": "derived from [those customers]. Id. at 249. The cognizable injury to brokerage firms such as Plaintiff is lost commissions. Money damages easily compensate Plaintiffs for this type of loss. The securities industry is highly regulated. Each individual transaction is monitored electronically. Every customer transfer from Morgan Stanley is documented. Every executed trade is recorded. Every dollar earned in fees by Defendants Frisby and Lovell doing business with those customers that Morgan Stanley considers its own can be traced precisely. Any loss Morgan Stanley might suffer as a result of Defendants’ departure is calculable. Merrill Lynch, Pierce, Fenner & Smith v. Bennert, 980 F.Supp. 73, 75 (D.Me.1997) (damages caused by the exodus of multiple brokers to a competing brokerage firm could be calculated by evidence of past history of the earnings on accounts and expert testimony). Plaintiff has failed to demonstrate irreparable harm if a temporary restraining order is not issued. B. LIKELIHOOD OF SUCCESS ON THE MERITS Morgan Stanley contends that the non-solicitation covenant Defendants signed is a legally enforceable agreement not to solicit certain of Morgan Stanley’s clients. Specifically, Plaintiff argues the covenant is narrowly tailored to protect Morgan Stanley’s legitimate business interests in the training it gives to its brokers and their exposure to its product lines, marketing strategies, client relationships and good will. Plaintiff places great emphasis on the fact that the restrictive covenant signed by Defendants in this case contains a geographical limitation. Such a restriction is not necessary for a valid covenant and does not alone mean that the restrictive covenant is enforceable. Habif, Arogeti & Wynne, P.C. v. Baggett et al., 231 Ga.App. 289, 297, 498 S.E.2d 346 (1998) (“When strictly scrutinized, a covenant not to solicit is generally valid if it prohibits soliciting clients of the employer with whom the employee had contacted during [his] employment with the employer, regardless of whether it has a territorial restriction.”); see also, W.R. Grace & Co. v. Mouyal, 262 Ga. 464, 467-68, 422 S.E.2d 529 (1992) (enjoining violation of non-solicitation covenant restricting solicitation of customers with whom departing employee had contact while employed with the party" }, { "docid": "14354142", "title": "", "text": "existing customers are, per se, legitimate business interest.” Hapney, at 134. There is no doubt that the subject of this dispute is a customer list and that the list contains Plaintiff’s existing customers. Moreover, Plaintiff is clearly attempting to “prevent direct solicitation of existing customers.” Thus, under Hapney the Plaintiff has a per se legitimate, indeed substantial, business interest in the customer list. Having determined that the Plaintiff has a legitimate business interest in the list, the Court must find that the Account Agreement is valid. The Court also finds that the Defendant has admittedly violated the agreement and that, therefore, the Plaintiff is likely to succeed on the merits. The Court must next determine whether the Plaintiff will suffer irreparable harm if the motion is not granted. Section 542.33 of the Florida Statutes provides that the “use of specific trade secrets, customer lists or direct solicitation of existing customers shall be presumed to be irreparable injury and may be specifically enjoined.” The Court has already determined that Defendant’s conduct implicates all three of these criteria. Accordingly, the burden shifts to the Defendant to overcome the presumption that his conduct will irreparably harm the Plaintiff. Defendant’s primary argument against irreparable harm is that Plaintiff’s damages are ascertainable and thus subject to a final monetary judgement. In support of this proposition the Defendant cites Merrill Lynch, Pierce, Fenner & Smith v. de Liniere, 572 F.Supp. 246 (N.D.Ga.1983) and Merrill Lynch, Pierce, Fenner & Smith Inc. v. E.F. Hutton & Co., Inc., 403 F.Supp. 336 (E.D.Mich.1975). The Court finds these cases unpersuasive for basically two reasons. First, the Court notes that neither case involved a statutory presumption of irreparable harm. Indeed, the Court in E.F. Hutton based its finding on the Plaintiffs failure to meet its burden of proof. E.F. Hutton at 343-44. Second, the Court simply disagrees that Plaintiff’s damages can be determined with “a sufficient degree of certainty.” Id. at 343. Florida courts have repeatedly held that injunctive relief is appropriate where customer lists are involved. In Carnahan v. Alexander Proudfoot Co, 581 So.2d 184 (Fla. 4th Dist.Ct.App.1991), the court" }, { "docid": "6598428", "title": "", "text": "has no adequate remedy at law. See id. ¶27. II. In Merrill Lynch, Pierce, Fenner & Smith v. Bishop, 839 F.Supp. 68, 70 (D.Me.1993), the Court reiterated the well-established requirements for preliminary injunctions. To award preliminary injunctive relief, [t]he Court must find: (1) that the plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which the granting of injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits; and (4) that the public interest will not be adversely affected by the granting of the motion. Id. (citations omitted). These requirements extend to requests for temporary injunctive relief. Id. (citations omitted). In Bishop, the Court elaborated upon the element of irreparable injury: In order to make a suitable showing of irreparable injury, the moving party must establish a colorable threat of immediate injury, see Massachusetts Coalition of Citizens With Disabilities v. Civil Defense Agency, 649 F.2d 71, 74 (1st Cir., 1981), and the absence of any adequate remedy at law for such injury. McDonough v. United States Department of Labor, 646 F.Supp. 478, 482 (D.Me.1986). Finally, where economic damages are the injury relied upon, it is to be remembered that economic harm, in and of itself is not sufficient to constitute irreparable injury. Id. .Bishop, 839 F.Supp. at 70. In its Motion for a Temporary Restraining Order, Plaintiff seeks two forms of injunctive relief. First, Plaintiff requests that Defendant be ordered to return to Plaintiff any and all information pertaining to Merrill Lynch customers and to refrain from further using or disclosing such information. The Court has granted this relief and issued a Temporary Restraining Order to that effect pursuant to the principles of Bishop. See id. at 71 (“Clearly the continuing use and disclosure of such records by Defendant will cause an injury to Plaintiff (as well as to Plaintiff’s protected clients) for which there is no adequate remedy at law.”). Second, Plaintiff requests that Defendant be enjoined from soliciting certain clients of Plaintiffs. For the reasons set forth below, the Court" }, { "docid": "6598426", "title": "", "text": "MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER GENE CARTER, District Judge. Plaintiff Merrill Lynch, Pierce, Fenner & Smith (“Merrill Lynch”) filed a Complaint seeking injunctive relief against Defendant Jeffrey Bennert (Docket No. 1) and an accompanying Motion for a Temporary Restraining Order (Docket No. 2) on October 17, 1997. Following oral argument and review of the papers supporting Plaintiffs Motion for a Temporary Restraining Order, the Court issued an Interim Memorandum of Decision Granting in Part and Denying in Part Plaintiffs Motion for a Temporary Restraining Order on October 30, 1997. This Memorandum sets forth the Court’s rationale. I. Plaintiff alleges that Defendant breached an employment agreement in which he agreed “not\" to divulge or disclose [confidential Merrill Lynch] information to any third party [or] reveal or permit this information to become known by any competitor of Merrill Lynch either during my employment or at any time thereafter.” Financial Consultant Employment Agreement and Restrictive Covenants ¶ 1 (“Agreement”). Defendant further agreed that “for a period of one year following my termination I will not solicit ... any Account whom I served or whose name became known to me during my employment at Merrill Lynch in any office or in any capacity.” Id. ¶ 2. Plaintiff alleges that Defendant violated the provisions of the Agreement by conduct including the removal of documents and information from Merrill Lynch, the transmission of such information to a competitor, Tucker Anthony, Inc. (“Tucker Anthony”), and the solicitation of Merrill Lynch clients. See Complaint ¶ 21. Plaintiff asserts irreparable injury in the form of a) Disclosure of trade secrets, customer lists, and other confidential information which is solely the property of Merrill Lynch and its clients; b) Loss of confidentiality of clients’ records and financial dealings, loss of confidence and trust of clients, loss of goodwill, and loss of business reputation; c) Loss of personnel and threat to office stability; d) Present economic loss, which is unascertainable at this time, and future economic loss, which is presently incalculable. Id. ¶ 26. Plaintiff further asserts that it" }, { "docid": "471207", "title": "", "text": "he would be paid a higher percentage with respect to his commissions than at Merrill Lynch and that he was promised a “forgivable” loan of $72,000 as an additional inducement to join Kemper. It is also undisputed that Kramer produced for copying by Kemper all the necessary pertinent records concerning his customer base so that Kem-per could promptly notify Kramer’s customers of his switch in allegiance and solicit the appropriate transfer of Kramer’s business to Kemper. It is also undisputed that such conduct violated Kramer’s account executive trainee agreement with Merrill Lynch. Therefore the Court finds that there exist facts to be submitted to the arbitration panel that would justify a remedy on behalf of Merrill Lynch and thus the plaintiff has satisfied the first factor in support of its motion for injunctive relief. B. Irreparable Harm Merrill Lynch argues that it has no adequate remedy at law for the harm it will suffer in the absence of injunctive relief. Merrill Lynch cites Merrill Lynch v. Stidham, 658 F.2d 1098 (5th Cir.1981) for the proposition that [t]he injury here is such that damages could not' adequately compensate. Were defendants permitted by the law to exploit the clientele of their former employers, every investment that reasonably flowed from the exploitation should be included in the damages award. How such a figure could be arrived at escapes us. Id., at 1102. See also, Merrill Lynch v. Bradley, 756 F.2d 1048 (4th Cir.1985); Valco, supra, 24 Ohio St.3d at 47-48, 492 N.E.2d 814 (“injunctions are, of course, the appropriate remedy to restrain the continued and future use, or threatened use of misappropriated trade secrets”). Plaintiffs’ point is well taken that “[i]t is impossible to determine at this time the numbers of Merrill Lynch clients who will be pirated away by Kramer, nor is it possible to determine with any degree of certainty the commissions each of these clients will generate.” Plaintiffs argue with equal, strength that irreparable and immeasurable harm lies in the fact that Merrill Lynch clients, when they discover that their financial information, market transactions, and investment assets which they presumed" }, { "docid": "23057801", "title": "", "text": "698 F.2d 862, 867 (7th Cir.1983). Though Salva-no and Coon argue that Sauer-Getriebe is distinguishable from the present case on several grounds, the subsequent circuit cases reaching like results reinforce Sauer-Ge-triebe ’s conclusion that district courts are not precluded as a general matter from issuing preliminary injunctive relief pending arbitration. As the defendants point out, Supreme Court decisions over the course of several years indicate an increasingly favorable judicial attitude toward the arbitration of disputes. See, e.g., Shearson/American Express Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987); Scherk v. Alberto-Culver Co., 417 U.S. 506, 94 S.Ct. 2449, 41 L.Ed.2d 270 (1974); Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985). We agree with the Second Circuit’s observation, however, that “the pro-arbitration policies reflected in [those cases] are furthered, not weakened, by a rule permitting a district court to preserve the meaningfulness of the arbitration” by granting injunctive relief. Having determined that the district court is not precluded from granting injunc-tive relief in cases involving arbitration agreements, we now consider whether the district court erred in granting the initial TRO in the specific circumstances before us. Our review in this regard is deferential, and we examine the district court’s balancing of the equities only for an abuse of discretion. Brotherhood of Locomotive Engineers v. Missouri-Kansas-Texas Railroad Co., 363 U.S. 528, 535, 80 S.Ct. 1326, 1330, 4 L.Ed.2d 1379 (1960). Moreover, the district court’s findings of fact will not be set aside unless clearly erroneous, although we examine conclusions of law de novo. Wright and Miller, Federal Practice and Procedure § 2962 at 633-36 (1973 and Supp.1993). As to the district court’s original decision, the available evidence — indicating that Salvano and Coon took various documents and information pertaining to Merrill Lynch’s clients and used that information to solicit Merrill Lynch customers — sufficiently supports the court’s determinations regarding irreparable harm and the inadequacy of Merrill Lynch’s legal remedy. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048, 1055 (4th Cir.1985) (“Merrill Lynch faced irreparable, noncom-pensable" }, { "docid": "14817556", "title": "", "text": "the plaintiff's account were inaccurate. They had the right to liquidate his positions in the event of a continuing deficit. A mere error or negligence in accounting will not give rise to the fraud or attempted fraud proscribed by § 6b. Further, the defendants argue that the Complaint doesn’t distinguish between them as to the allegedly wrongful activities and the damages resulting therefrom. A commodities futures commission merchant stands in a fiduciary relationship with its client. Commodity Futures Trading Com’n v. Savage, 611 F.2d 270, 285 (9th Cir.1979); Marchese v. Shearson Hayden Stone, Inc., 734 F.2d 414, 418 (9th Cir.1984). This status imposes on the merchant an affirmative duty of utmost good faith and full and fair disclosure of all material facts. Ibid. The primary focus of § 6b is to protect buyers and sellers of futures contracts from fraud practiced by their brokers. Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 389, 102 S.Ct. 1825, 1844, 72 L.Ed.2d 182 (1982); Merrill Lynch Futures Inc. v. Kelly, 585 F.Supp. 1245, 1251 (S.D.N.Y.1984). An arbitrary, unreasonable or otherwise wrongful liquidation of a customer’s account can serve as the basis for a § 6b fraud action. See Markowitz v. Merrill Lynch, Pierce, Fenner & Smith, 579 F.Supp. 124, 127-9 (S.D.N.Y.1984); Crabtree Investments v. Merrill Lynch, 577 F.Supp. 1466, 1472, 1474 (M.D.La.1984). In order to violate the Act, it is not necessary that the defendants specifically intended to injure the plaintiff; it must appear, however, that the wrongful acts were intentional and that the defendants knew or recognized their fraudulent character. Merrill Lynch Futures Inc. v. Kelly, supra at 1252; McIlroy v. Dittmer, 732 F.2d 98, 101 (8th Cir.1984); see also Commodity Futures Trading Com’n v. Savage, supra at 283. Privity or personal contact between the plaintiff and a defendant is not an essential element of a § 6 action. Merrill Lynch, Pierce, Fenner & Smith v. Curran, supra, 456 U.S. at 394, 102 S.Ct. at 1847. The fraudulent actions of an agent are imputed to his principal. 7 U.S.C. § 4; Commodities Fut. Trad. v. Commodities Fluctuations, 583 F.Supp." }, { "docid": "14354143", "title": "", "text": "criteria. Accordingly, the burden shifts to the Defendant to overcome the presumption that his conduct will irreparably harm the Plaintiff. Defendant’s primary argument against irreparable harm is that Plaintiff’s damages are ascertainable and thus subject to a final monetary judgement. In support of this proposition the Defendant cites Merrill Lynch, Pierce, Fenner & Smith v. de Liniere, 572 F.Supp. 246 (N.D.Ga.1983) and Merrill Lynch, Pierce, Fenner & Smith Inc. v. E.F. Hutton & Co., Inc., 403 F.Supp. 336 (E.D.Mich.1975). The Court finds these cases unpersuasive for basically two reasons. First, the Court notes that neither case involved a statutory presumption of irreparable harm. Indeed, the Court in E.F. Hutton based its finding on the Plaintiffs failure to meet its burden of proof. E.F. Hutton at 343-44. Second, the Court simply disagrees that Plaintiff’s damages can be determined with “a sufficient degree of certainty.” Id. at 343. Florida courts have repeatedly held that injunctive relief is appropriate where customer lists are involved. In Carnahan v. Alexander Proudfoot Co, 581 So.2d 184 (Fla. 4th Dist.Ct.App.1991), the court found that even if irreparable injury was not presumed, copying computer disks and soliciting clients would cause irreparable harm. Under the current facts and statute, however, irreparable injury actually is presumed. Moreover, the Florida Supreme Court has held repeatedly that where a Defendant has breached a covenant not to compete “[t]he Court may award damages ... but the normal remedy is to grant an injunction. This is so because of the inherently difficult task of determining just what damage is actually caused by the employee’s breach of the agreement.” Miller Mechanical, Inc. v. Ruth, 300 So.2d 11 (Fla.1974). In Capraro v. Lanier Business Products, Inc., 466 So.2d 212 (Fla. 1985), the Florida Supreme Court reiterated that an injunction, not monetary damages, was the proper remedy for a breach of a non-competition agreement. Addressing irreparable injury the Court also held that [t]o require that a plaintiff prove irreparable injury ... would, in most instances, defeat the purpose of the plaintiff’s action. Immediate injunctive relief is the essence of such suits and often times the only effectual" }, { "docid": "5922359", "title": "", "text": "MEMORANDUM BARTLE, District Judge. Before the court is the motion of plaintiff Salomon Smith Barney Inc. (“Smith Barney”) for a preliminary injunction against one of its former financial consultants, Stewart M. Vockel, III (“Vockel”), who resigned from Smith Barney on April 28, 2000. We have subject matter jurisdiction under 28 U.S.C. § 1332. In addition to this action, Smith Barney has instituted an arbitration proceeding against Vockel under the rules promulgated by the National Association of Securities Dealers. In that proceeding Smith Barney seeks, among other things, a monetary award. Until the dispute between the parties can be arbitrated on the merits, Smith Barney asks this court to restrain Vockel from using, disclosing, or misappropriating Smith Barney’s customer information, to compel Vockel to undo account transfers for any former Smith Barney accounts he successfully caused to be transferred to his new employer, and to require Vockel to return all documents containing Smith Barney client information. The complaint does not seek a permanent injunction or other relief. We denied the request for a temporary restraining order on May 1, 2000. On May 3, 2000, we held a preliminary injunction hearing. In order to obtain the extraordinary remedy of a preliminary injunction, Smith Barney must establish that there is a reasonable likelihood that it will succeed on the merits and that it is reasonably likely to suffer irreparable harm if relief is denied. We must also consider whether in-junctive relief will cause the defendant irreparable injury and whether granting the preliminary relief is in the public interest. See Adams v. Freedom Forge Corp., 204 F.3d 475, 484, 487 (3d Cir.2000). I. Based upon the evidence presented at the May 3, 2000 hearing, held in accordance with Rule 65 of the Federal Rules of Civil Procedure, we find the following. Stewart Vockel has worked as a bond trader or financial consultant for a number of years. Merrill Lynch, Pierce, Fenner & Smith, Inc. (“Merrill Lynch”) hired him as a financial consultant in 1991. He left-Merrill Lynch and started with the Philadelphia branch of Smith Barney in November, 1994. In late January, 2000, Vockel" } ]

[ { "docid": "16942506", "title": "", "text": "to Schack, other judicial candidates, who may not be privy to this litigation, but are aware of the Committee on Standard’s advisory opinion issued to Schack, still do not know where they stand under Canon 7(B)(1)(a). Notwithstanding his own injuries,-under the Supreme Court’s overbreadth doctrine, see Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), Schack has standing to raise a facial challenge to Canon 7(B)(1)(a). This is precisely the approach taken by the Third Circuit in Stretton, 944 F.2d 137. There, a judicial candidate brought a pre-enforcement challenge to a section of Pennsylvania’s Code of Judicial Conduct that bars judicial candidates from announcing their views on disputed legal or political issues. The plaintiff alleged a chill of his protected speech rights and the disciplinary authorities disclaimed that the proposed speech would violate the canon. Nevertheless, the court held that a case or controversy existed. The court wrote: The Boards take the position here as they did in the district court that the topics plaintiff proposes to discuss in the course of his campaign do not violate the Code. The Boards, however, do not have the final word on interpretation of the Code. Moreover, plaintiff has also challenged the Canon on overbreadth grounds and may maintain the action on that basis. See Board of Trustees of the State Univ. of New York v. Fox, 492 U.S. 469, 484, 109 S.Ct. 3028, 3037, 106 L.Ed.2d 388 (1989). Id. at 140. In that one paragraph, the Third Circuit summed up the essence of this ease. Following their lead, we hold that, after the suit was filed but before the judicial election was held, there was an actual dispute between the parties. IV. The final hurdle to a hearing on the merits of plaintiffs’ challenge is to determine whether the judicial election held in November 1990 rendered the case- moot. The Supreme Court has recognized that in cases challenging rules governing elections, there often is not sufficient time between the filing of the complaint and the election to resolve the issues. Thus, the Court has allowed such challenges to" } ]

[ { "docid": "23624993", "title": "", "text": "City of the right to levy sanctions against employees who engage in such conduct. We therefore sustain the district court’s holding that Aiello’s conduct on the evening of January 30,1973, was within the scope of the Bureau of Fire regulations and, thus, those rules were not vague as applied to him. III. Aiello also contends that Rules 169.16 and 169.23 are unconstitutionally overbroad. Although challenges for vagueness may not be asserted vicariously, the Supreme Court has “consistently allowed attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.” Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965). See Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093 (1940). The rationale permitting such a liberalized rule for standing in the first amendment overbreadth context is the very real concern that, in a democratic society, “the possible harm ... in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes.” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). Litigants, therefore, may “challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Id. Because invalidation for facial over-breadth is “strong medicine,” there are nonetheless limits to its application. The standards for the use of the facial over-breadth doctrine were set forth by the Supreme Court in Broadrick v. Oklahoma, supra. There, three employees of the State of Oklahoma were charged with violations of a state law which, like the federal Hatch Act, restricted the political activities of state employees. Although conceding that the statute was constitutional as applied to their own conduct, the employees nevertheless argued" }, { "docid": "6077714", "title": "", "text": "Court of Pennsylvania, 944 F.2d 137, 140 (3d Cir.1991). Canatella claims that the vagueness and overbreadth of the statutes result in censorship of protected speech by all California attorneys who push the envelope of zealous advocacy. Canatella does not allege that he suffers injury only if he is again sanctioned by a court, and investigated, and disciplined (or disbarred) by the State Bar; nor must he do so to demonstrate standing for an overbreadth claim. It is enough that Canatella shows that he and others in his position face a credible threat of discipline under the challenged statutes, and may consequently forego their expressive rights under the First Amendment. Nor have we reason to doubt that other California attorneys find themselves in Canatella’s dilemma. The alleged source of the harms that Canatella and others like him may face is the arguably vague and overbroad language of the challenged provisions under which California lawyers perform their jobs and are subject to discipline. He seeks an injunction preventing enforcement of the challenged provisions, and a declaration that they are unconstitutional. He alleges concrete and particularized harms to his First Amendment rights and demonstrates a sufficient likelihood that he and others may face similar harm in the future. Under the rubric of Broadrick, this is enough to satisfy the prudential requirements of standing for a First Amendment over-breadth claim. D. In dismissing Canatella’s claim, the district court concluded that ripeness also presented an obstacle to Canatella’s action. Ripeness is a question of law reviewed de novo. Stuhlbarg Intern. Sales Co. v. John D. Brush & Co. 240 F.3d 832, 839 (9th Cir.2001). As is often the case, we are confronted with a situation where “sorting out where standing ends and ripeness begins is not an easy task.” See Thomas, 220 F.3d at 1138-39. See also Erwin Chemerinsky, A Unified Approach to Justiciability, 22 Conn. L.Rev. 677, 681 (1990). A ripeness inquiry considers whether “concrete legal issues, presented in actual cases, not abstractions,” are raised by the complaint. United Public Workers v. Mitchell, 330 U.S. 75, 77, 67 S.Ct. 556, 91 L.Ed. 754 (1947)," }, { "docid": "6077723", "title": "", "text": "The district court held and the parties do not dispute that the California Supreme Court's Final Order approving Canatella's stipulated discipline was not an \"ongoing\" state proceeding. Because the nature or amount of Canatella's stipulated discipline was not the subject of an ongoing proceeding, and was not subject to alteration in the California state court system, we agree. . The district court relied on Jacobs v, State Bar of California, 20 Cal.3d 191, 141 Cal. Rptr. 812, 570 P.2d 1230 (1977), to conclude that Canatella’s self-reporting of the sanctions order initiated a disciplinary proceeding. Jacobs was decided before the enactment of applicable California Court Rules governing disciplinary proceedings and is thus not applicable to this case. . Given the absence of an ongoing proceeding, an \"actual interference” inquiry under Green is no longer necessary. . In performing our relaxed standing analysis, we need not consider the precise relationship between Canatella and those he argues are in his position. See Eisenstadt v. Baird, 405 U.S. 438, 445 n. 5, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972) (\"Indeed, in our First Amendment cases we have relaxed our rules of standing without regard to the relationship between the litigant and those whose rights he seeks to assert precisely because application of those rules would have an intolerable, inhibitory effect on freedom of speech.”). . The Broadrick rule applies only to statutes that regulate speech. See Broadrick, 413 U.S. at 612, 93 S.Ct. 2908; Wurtz v. Risley, 719 F.2d 1438, 1440 (9th Cir.1983). Here, Cana-tella challenges rules \"directed narrowly and specifically at expression or conduct commonly associated with expression,” id. at 305; City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 760, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988), and a relaxed standing inquiry is proper. .In Roulette v. City of Seattle, 97 F.3d 300 (9th Cir.1996), we considered whether a federal court had jurisdiction to hear a facial First Amendment challenge to a Seattle ordi nance prohibiting sitting or lying on sidewalks, observing: \"It's true that our ordinary reluctance to entertain facial challenges is somewhat diminished in the First Amendment context." }, { "docid": "20320757", "title": "", "text": "represents an exception to the usual rules of Article III standing. Ordinarily, “a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick, 413 U.S. at 610, 93 S.Ct. 2908. However, the Supreme Court has carved out an exception to this standing doctrine in the First Amendment area because “the First Amendment needs breathing space” and an overly broad statute can result in intolerable self-censorship. Id. at 611, 93 S.Ct. 2908. Thus, the Court has “permitted [litigants] to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Id. at 612, 93 S.Ct. 2908. “If such an overbreadth challenge succeeds, the prosecution fails regardless of the nature of the defendant’s own conduct,” Wurtz v. Risley, 719 F.2d 1438, 1440 (9th Cir.1983), because a successful over-breadth challenge renders a statute unconstitutional and, therefore, “invalid in all its applications,” Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 483, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989). Thus, the doctrine is employed “sparingly and only as a last resort.” Broadrick, 413 U.S. at 613, 93 S.Ct. 2908. In Broadrick, the Court announced what has become the fundamental rule in the First Amendment overbreadth analysis: in order for a statute to be held unconstitutionally overbroad, “the overbreadth of [the] statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Id. at 615, 93 S.Ct. 2908 (emphasis added). “[T]he mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge .... [T]here must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections ... for it to be facially challenged on overbreadth grounds.” Members of City" }, { "docid": "5039544", "title": "", "text": "action taken against Wilson; and that if Wilson’s suit is successful, GPBA will receive all the relief that it asks. As a general rule a party only has standing to attack the constitutionality of rules and regulations that have affected his or her interests. Here the complaint attacks Rules 410.03 and 410.67 on three grounds: that they are vague, that they are overbroad as applied, and that they are facially overbroad. Under Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), a party against whom a rule may constitutionally be applied cannot raise a facial overbreadth challenge, unless the party bases that challenge on alleged infringement of First Amendment rights. This exception is rationalized not by the fact that the litigant before the Court may have suffered a deprivation of a First Amendment right, but by “a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick, supra at 612, 93 S.Ct. at 2916. The rationalization does not apply to situations such as the present, where in addition to the party against whom the challenged rule has been applied, i. e. Wilson, there is an alternative litigant such as GPBA who is raising a facial overbreadth argument and against whom the rule or statute has not been applied. McNea v. Garey, 434 F.Supp. 95, 104 (N.D.Ohio 1976). Whether to dismiss GPBA and allow Wilson to raise a facial overbreadth attack on Rules 410.03 and 410.67 depends on whether GPBA has standing to make that attack. Organizations similar to GPBA have been granted standing to raise facial over-breadth challenges to protect their members' First Amendment rights. See, e. g., United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 91 S.Ct. 1076, 28 L.Ed.2d 339 (1971); McNea v. Garey, supra. Such organizations stand in the same relationship to their members as GPBA does to its members. The Court, therefore, concludes that GPBA has standing to raise a facial overbreadth challenge against Rules 410.03 and 410.67, For the same reason, although Wilson" }, { "docid": "16480766", "title": "", "text": "broad entitlements, we relax our ripeness requirements for such claims. See Ernes v. Day, 754 F.2d 28, 30-31 (3d Cir.1985). In the case of overbreadth challenges, standing arises “not because [the plaintiffs] own rights of free expression are violated, but because of a judicial prediction or assumption that the [challenged statute’s] very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick, 413 U.S. at 612, 93 S.Ct. 2908. Therefore, an individual against whom no enforcement action has been taken can still challenge a regulation “because [that regulation] also threatens others not before the court - those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.” Waterman v. Farmer, 183 F.3d 208, 212 (3d Cir.1999) (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985)). This concern with the rights of those not before the court holds equal force in both pre-enforcement cases and those in which prosecution is pending. See Canatella v. State of California, 304 F.3d 843, 853 (9th Cir.2002). Although a final administrative decision on Peachlum’s claim might definitively resolve its applicability to her sign, the rights of others may go untested. Even if Peachlum’s case had been successfully appealed and the ordinance deemed inapplicable to her, one can conceive of manifold other situations where York residents might be unsure of the status of various other forms of signage. Those residents who are more diffident about risking penalties under the ordinance might have their free speech rights vindicated through Peachlum’s suit. The ordinance also appears to be a prior restraint, which further counsels in favor of intervention, even absent final administrative resolution. [A] law subjecting the exercise of First Amendment freedoms to the prior restraint of a license must contain narrow, objective, and definite standards to guide the licensing authority. The reasoning is simple: If the permit scheme involves appraisal of facts, the exercise of judgment, and the formation of an opinion, by the" }, { "docid": "16232516", "title": "", "text": "to serve a substantial governmental interest and leave ample alternative channels for communication of protected speech. Spokane’s Ordinances “reduce the costs of secondary effects without substantially reducing speech.” Alameda Books, 122 S.Ct. at 1742 (Justice KENNEDY concurring in the judgment). C. First Amendment — Overbreadth Plaintiff contends Spokane Ordinance No. 32778 is overbroad because “significant” or “substantial,” as used in SMC 11.19.03023 (“a significant or substantial portion of its stock in trade [devoted] to the sale, exchange, rental, loan, transfer or viewing of ‘adult-oriented merchandise’ ”) is nowhere defined. Plaintiff says that although its business clearly falls within this definition, it nonetheless has standing to challenge the ordinance for overbreadth and notes that it “may choose to reconfigure its business as a mainstream video store with a separate adult section” in the event the ordinance is upheld under the time, place, and manner analysis. Ac cording to plaintiff, the ordinance is over-broad to the extent it applies to mixed use businesses which have less than a preponderance of sexually oriented material and which do not hold themselves out to,the public as sexually oriented businesses. The overbreadth doctrine derives from the First Amendment and serves to invalidate legislation so sweeping that it reaches protected conduct, as well as unprotected conduct. Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). In Broadrick, the Supreme Court observed that in the First Amendment area, the traditional rules of standing have been altered to permit “attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.” Id. at 612, 93 S.Ct. 2908, quoting Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Litigants are pérmitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s existence may cause others not before the court to refrain from constitutionally protected speech or expression. These are referred to as claims of “facial" }, { "docid": "20320756", "title": "", "text": "Amendment.” Maj. Op. at 1217. Some of the majority’s analysis sounds in the overbreadth doctrine, but because the majority does not actually apply this doctrine, its facial holding is presumably based on the reasoning “that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). This is not surprising given that the majority believes that the Act is unconstitutional as applied to Alvarez, who is perhaps the prototypical candidate for a constitutional application of the Act. Because I believe that the Act is constitutional as applied to Alvarez, my conclusion regarding the facial constitutionality of the Act necessarily rests on a discussion of Alvarez’s over-breadth challenge. I would hold that because any overbreadth of the Act can be eliminated by construction and is, in any event, far from “substantial,” Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), the Act is facially constitutional. The overbreadth doctrine is, literally, an extraordinary doctrine, because it represents an exception to the usual rules of Article III standing. Ordinarily, “a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick, 413 U.S. at 610, 93 S.Ct. 2908. However, the Supreme Court has carved out an exception to this standing doctrine in the First Amendment area because “the First Amendment needs breathing space” and an overly broad statute can result in intolerable self-censorship. Id. at 611, 93 S.Ct. 2908. Thus, the Court has “permitted [litigants] to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Id. at 612, 93 S.Ct. 2908. “If such an overbreadth challenge succeeds, the prosecution fails regardless of the nature of the defendant’s own conduct,” Wurtz v. Risley, 719 F.2d" }, { "docid": "6077700", "title": "", "text": "be subject to discipline or disbarment by the State Bar. The district court abstained from exercising jurisdiction under Younger, and Canatella appealed to this court. Pending appeal, the State Bar filed formal charges against Canatella. Canatella agreed to a stipulated settlement requiring 30 days actual suspension from legal practice, and an eighteen-month stayed suspension subject to reinstatement upon any finding of rule violations during an eighteen-month probationary period. The California Supreme Court approved the stipulated discipline on August 18, 1999, in a final disciplinary order. In light of the settlement, this court dismissed Canatella’s appeal as moot on November 17, 1999. See Canatella v. State Bar of California, 203 F.3d 830 (9th Cir.1999). The district court subsequently denied without prejudice Canatella’s motions for vacatur of the abstention order, and for leave to amend his complaint. In March of 2000, Canatella filed a second § 1983 suit in district court, again seeking an injunction prohibiting the State Bar from taking further disciplinary action against him under the challenged provisions, and a declaration that the provisions are unconstitutional. Canatella alleged that facially and as applied, the challenged provisions are unconstitutionally vague and overbroad, in violation of the First and Fourteenth Amendments. Canatella also alleged that the provisions deprive him of his “judicial proceedings” privilege under color of state law. In raising these claims, Canatella alleged a strong likelihood of further State Bar disciplinary charges for a sanction entered against him by a magistrate judge on January 14, 2000, in a sepa rate action. The district court dismissed Canatella’s complaint under the Rooker-Feldmcm doctrine and on Younger abstention grounds, further questioning whether Canatella had standing and whether his claims were ripe for review. Canatella now appeals. Two events of significance have occurred after Canatella filed the immediate appeal. First, this court vacated the magistrate judge’s sanction order on January 25, 2001, with the mandate issuing on February 20, 2001. See Chan v. Bay Area Air Quality Management Dist., 2 Fed.Appx. 861, 867 (9th Cir.2001). Second, on March 18, 2001, Canatella completed his probationary sentence under the stipulated settlement and final order issued by" }, { "docid": "23015212", "title": "", "text": "within the zone of interests protected by the statute or constitutional provision at issue.” Bischoff v. Osceola County, 222 F.3d 874, 883 (11th Cir.2000). Second, “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 warrant exercise of jurisdiction.” Warth, 422 U.S. at 499, 95 S.Ct. at 2205. Third, “the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Id. Unlike the standing requirements of the Constitution, the prudential requirements are “essentially [a] matter[ ] of judicial self-governance.” Id. at 499-500, 95 S.Ct. at 2205. The overbreadth doctrine is an exception to the third requirement of prudential standing. Clearwater, 351 F.3d at 1116 (citing Bischoff, 222 F.3d at 884). The overbreadth doctrine allows “[l]itigants ... to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). Under the doctrine, a party may bring a First Amendment case asserting the rights of third parties if “a statute is constitutionally applied to the litigant but might be unconstitutionally applied to third par ties not before the court.” Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916 (emphasis added). A plaintiff who has established constitutional injury under a provision of a statute as applied to his set of facts may also bring a facial challenge, under the overbreadth doctrine, to vindicate the rights of others not before the court under that provision. New York v. Ferber illustrates the distinction between an as-applied challenge and a facial challenge under the over-breadth doctrine. 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). The Supreme Court in Ferber considered whether to allow a bookseller, who was prosecuted for the sale of child pornography to undercover" }, { "docid": "6077724", "title": "", "text": "(\"Indeed, in our First Amendment cases we have relaxed our rules of standing without regard to the relationship between the litigant and those whose rights he seeks to assert precisely because application of those rules would have an intolerable, inhibitory effect on freedom of speech.”). . The Broadrick rule applies only to statutes that regulate speech. See Broadrick, 413 U.S. at 612, 93 S.Ct. 2908; Wurtz v. Risley, 719 F.2d 1438, 1440 (9th Cir.1983). Here, Cana-tella challenges rules \"directed narrowly and specifically at expression or conduct commonly associated with expression,” id. at 305; City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 760, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988), and a relaxed standing inquiry is proper. .In Roulette v. City of Seattle, 97 F.3d 300 (9th Cir.1996), we considered whether a federal court had jurisdiction to hear a facial First Amendment challenge to a Seattle ordi nance prohibiting sitting or lying on sidewalks, observing: \"It's true that our ordinary reluctance to entertain facial challenges is somewhat diminished in the First Amendment context. However, this is because of our concern that those who desire to engage in legally protected expression ... may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.... When we allow such challenges, we mostly say we’re protecting the free speech interests of 'parties not before the Court.’ ” Id. at 303 (citation omitted). . In so holding, we do not imply that the mere existence of the challenged provisions gives rise to an injury sufficient for standing purposes. Instead, it is Canatella's history with the California Bar, his continuing activities as a zealous advocate, and the nature of his challenge to the provisions that lead us to conclude the requirements of standing are met in his complaint. . In Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988), the Supreme Court allowed a pre-enforcement challenge to proceed against Virginia’s newly amended obscenity law. In considering whether the dispute presented an actual case or controversy, the Court wrote: \"We conclude" }, { "docid": "7607944", "title": "", "text": "Cone Corp. v. Florida Dep’t of Transp., 921 F.2d 1190, 1203 n. 43 (11th Cir.1991). The requirements for standing-are somewhat more lenient for facial challenges to statutes on the grounds of overbreadth. In the First Amendment context, plaintiffs can challenge the constitutionality of a statute that has not been unconstitutionally applied to them. See Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 955-57, 104 S.Ct. 2839, 2845-47, 81 L.Ed.2d 786 (1984); National Council for Improved Health v. Shalala, 122 F.3d 878, 882-83 (10th Cir.1997); Bordell v. General Electric Co., 922 F.2d 1057, 1060-61 (2d Cir.1991). That is, plaintiffs can challenge a statute as overbroad even if their particular conduct is not constitutionally protected. As the Supreme Court explained in Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2915-16, 37 L.Ed.2d 830 (1973): [T]he Court has altered its traditional rules of standing to permit — in the First Amendment area- — -“attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.” Dombrowski v. Pfister, 380 U.S. at 486, 85 S.Ct. at 1121. Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression. However, even under the more lenient requirements for standing applicable to First Amendment overbreadth challenges, it still remains the law that plaintiffs must establish that they have suffered some injury in fact as a result of the defendant’s actions. See Virginia v. American Booksellers Assoc. Inc., 484 U.S. 388, 392, 108 S.Ct. 636, 642, 98 L.Ed.2d 782 (1988) (explaining that to facially challenge the constitutionality of a statute on overbreadth grounds the plaintiff must “establish at an irreducible minimum an injury in fact; that is, there must be some ‘threatened or actual injury resulting from the putatively illegal action.”’) (quoting Warth v. Seldin, 422" }, { "docid": "6077717", "title": "", "text": "at 289, 99 S.Ct. 2301. Additionally, Canatella alleges harm not only in the form of potential disciplinary measures under the challenged statutes, but in the ongoing harm to the expressive rights of California attorneys to the extent they refrain from what he believes to be constitutionally protected activity. We also believe that Canatella’s claims do not arise in a factual vacuum and are sufficiently framed to render them fit for judicial decision. We also conclude Canateha and others in his position will be harmed absent a consideration of his claims. We do not beheve the challenge should be considered ripe only upon the initiation of disciplinary proceedings. If, instead, we were to conclude that Canatella’s claims are ripe only when based only on concluded disciplinary proceedings, Canateha would arguably be barred on a theory of mootness, or on the basis of Rooker-Feldman. “Ripeness is particularly a question of timing,” Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation v. Board of Oil & Gas Conservation, 792 F.2d 782, 788 (9th Cir.1986), and there is no better time to entertain Canatella’s claims than now. CONCLUSION Because Canateha has completed the probationary sentence to which he stipulated, we conclude that the Rooker-Feld-man doctrine no longer prevents the exercise of jurisdiction over his claim. We also conclude that the mere self-reporting of a sanction to the State Bar does not give rise to an ongoing judicial proceeding, and that the court’s abstention on the basis of Younger was error. We also conclude that Canatella satisfies the prudential requirements of standing under the analysis appropriate in the First Amendment context, and that Canatella’s claims are ripe for review. REVERSED and REMANDED. . Canatella filed for bankruptcy in 1997, alleging in his complaint that he was forced to do so \"as a result of the devastating economic impact of the sanctions.” He tendered approximately $100,000 in compliance with the sanctions orders. . The sanctions arose in a collection action filed against Canatella himself for fees owed to a court reporter. . The challenged provisions state that: (1) \"It is the duty of an attorney" }, { "docid": "6077710", "title": "", "text": "S.Ct. 2130, 119 L.Ed.2d 351 (1992), coupled with “a sufficient likelihood that he will again be wronged in a similar way.” City of Los Angeles v. Lyons, 461 U.S. 95, 111, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). See also Berner v. Delahanty, 129 F.3d 20, 24 (1st Cir.1997). And while the plaintiff must show that the feared harm is “actual or imminent, not conjectural or hypothetical,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), “[o]ne does not have to await the consummation of threatened injury” before challenging a statute. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979). The district court concluded that Cana-tella had no standing because he could show\" no imminent threat of injury based on the magistrate judge’s sanctions order. Nor did the district court accept the contention that Canatella suffered harm by the threat of sanctions in the future. However, we are not so quick to render Canatella a “hapless plaintiff between the Scylla of intentionally flouting ... [the] law and the Charybdis of forgoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a [disciplinary] proceeding.” American-Arab Anti-Discrimination Committee v. Thornburgh, 970 F.2d 501, 508 (9th Cir.1992) (quoting Steffel v. Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)); Babbitt, 442 U.S. at 298, 99 S.Ct. 2301; Canatella personally faced discipline under the challenged provisions. He stipulated to a probationary sentence that allowed him to retain his license and continue practice after a 30 day actual suspension. He has nowhere conceded that he will refrain from the type of expression that he believes is constitutionally protected, is necessary to the performance of his duties as an advocate, and is the basis upon which he may be disciplined under the challenged statutes in the future. Nor has the State Bar conceded that it will not rely on the challenged provisions to bring disciplinary proceedings against Canatella should he be sanctioned again. On the record before us, we believe not" }, { "docid": "10066449", "title": "", "text": "Bar from 1965 to 1975 charging violations of the rule cited Hirschkop, who has been active in many civil rights and civil liberties cases. One complaint was filed after he did no more than tell the press that he was representing an indicted prison official because the official was “a good guy.” Eventually, Hirschkop and the Virginia State Bar reached a settlement in which the executive committee of the Bar admitted that the complaints against Hirschkop were meritless and had been filed in cases where “the complainants may have disagreed with the causes supported and espoused” by Hirschkop. In return, Hirschkop consented to dismissal of his claims against the State Bar, its officers, and employees. The agreement, however, did not deal with the rule’s constitutionality, and it expressly provided that Hirschkop would not be immune from appropriate disciplinary action in the future should he violate the rule. Consequently, the only issue presented in this appeal is the facial constitutionality of rule 7-107. The Supreme Court has consistently relaxed normal standing requirements in first amendment cases. See, e. g., Broadrick v. Oklahoma, 413 U.S. 601, 611-13, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Dombrowski v. Pfister, 380 U.S. 479, 486-87, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); N.A.A.C.P. v. Button, 371 U.S. 415, 432-33, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). The Court justified this exception to the general rule of standing by explaining in Broadrick, 413 U.S. at 612, 93 S.Ct. at 2916: Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression. This policy is particularly strong when, as here, only speech and not conduct is at issue. See Broadrick, 413 U.S. at 615, 93 S.Ct. 2908. Hirschkop is subject to discipline, including disbarment, for comments violating rule 7-107. We conclude that he has standing to challenge the rule because the threat of disciplinary action may deter him and other Virginia attorneys from" }, { "docid": "6077712", "title": "", "text": "only that “[t]he parties remain philosophically on a collision course,” Berner, 129 F.3d at 24, but that there is a strong likelihood Canatella may again face discipline under the challenged provisions. His threat of future prosecution is not merely hypothetical and conjectural, but actual. In relying on Canatella’s disciplinary record to reach our conclusion, we do not maintain that past “prosecution” by itself gives rise to a present case or controversy. But we have no reason to doubt that Cana-tella’s interactions with the State Bar heretofore do not have at least some “continuing, present adverse effects,” Lyons, 461 U.S. at 102, 103 S.Ct. 1660, whether these effects be further discipline, or the chilling of what may be constitutionally protected speech. Because the equitable relief he seeks would alleviate the harm he has alleged, Canatella demonstrates standing and his claims should be allowed to proceed. Moreover, in recognition that “the First Amendment needs breathing space,” the Supreme Court has relaxed the prudential requirements of standing in the First Amendment context. See Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947-956, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). Where, as here, a plaintiff raises an overbreadth challenge to a statute under the First Amendment, standing arises “not because [the plaintiffs] own rights of free expression are violated, but because of a judicial prediction or assumption that the [challenged statute’s] very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick, 413 U.S. at 612, 93 S.Ct. 2908. Here, the district court did not take Broadrick and its progeny into account in addressing standing, and its analysis fails to recognize that Canatella challenged the statutes both facially and as applied. We cannot selectively read the facial over-breadth claim out of Canatella’s complaint, and on that basis, reduce the scope of Canatella’s alleged harms for purposes of standing analysis. See American Civil Liberties Union v. Florida Bar, 999 F.2d 1486, 1495 (11th Cir.1993); Stretton v. Disciplinary Bd. of Supreme" }, { "docid": "6077711", "title": "", "text": "Scylla of intentionally flouting ... [the] law and the Charybdis of forgoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a [disciplinary] proceeding.” American-Arab Anti-Discrimination Committee v. Thornburgh, 970 F.2d 501, 508 (9th Cir.1992) (quoting Steffel v. Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)); Babbitt, 442 U.S. at 298, 99 S.Ct. 2301; Canatella personally faced discipline under the challenged provisions. He stipulated to a probationary sentence that allowed him to retain his license and continue practice after a 30 day actual suspension. He has nowhere conceded that he will refrain from the type of expression that he believes is constitutionally protected, is necessary to the performance of his duties as an advocate, and is the basis upon which he may be disciplined under the challenged statutes in the future. Nor has the State Bar conceded that it will not rely on the challenged provisions to bring disciplinary proceedings against Canatella should he be sanctioned again. On the record before us, we believe not only that “[t]he parties remain philosophically on a collision course,” Berner, 129 F.3d at 24, but that there is a strong likelihood Canatella may again face discipline under the challenged provisions. His threat of future prosecution is not merely hypothetical and conjectural, but actual. In relying on Canatella’s disciplinary record to reach our conclusion, we do not maintain that past “prosecution” by itself gives rise to a present case or controversy. But we have no reason to doubt that Cana-tella’s interactions with the State Bar heretofore do not have at least some “continuing, present adverse effects,” Lyons, 461 U.S. at 102, 103 S.Ct. 1660, whether these effects be further discipline, or the chilling of what may be constitutionally protected speech. Because the equitable relief he seeks would alleviate the harm he has alleged, Canatella demonstrates standing and his claims should be allowed to proceed. Moreover, in recognition that “the First Amendment needs breathing space,” the Supreme Court has relaxed the prudential requirements of standing in the First Amendment context. See Broadrick v. Oklahoma, 413 U.S." }, { "docid": "6077725", "title": "", "text": "However, this is because of our concern that those who desire to engage in legally protected expression ... may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.... When we allow such challenges, we mostly say we’re protecting the free speech interests of 'parties not before the Court.’ ” Id. at 303 (citation omitted). . In so holding, we do not imply that the mere existence of the challenged provisions gives rise to an injury sufficient for standing purposes. Instead, it is Canatella's history with the California Bar, his continuing activities as a zealous advocate, and the nature of his challenge to the provisions that lead us to conclude the requirements of standing are met in his complaint. . In Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988), the Supreme Court allowed a pre-enforcement challenge to proceed against Virginia’s newly amended obscenity law. In considering whether the dispute presented an actual case or controversy, the Court wrote: \"We conclude that plaintiffs have alleged an actual and well-founded fear that the law will be enforced against them. Further, the alleged danger of this statute is, in large measure one of self-censorship; a harm that can be realized without an actual prosecution.” Id. at 393, 108 S.Ct. 636. . Because we conclude that Canatella’s complaint should not have been dismissed on any of the foregoing grounds, we do not reach the question of whether the district court abused its discretion in denying him leave to amend his complaint. Nor do we express any view as to the merits of Canatella's claims, the questions before us being strictly jurisdictional." }, { "docid": "6077713", "title": "", "text": "601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947-956, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984). Where, as here, a plaintiff raises an overbreadth challenge to a statute under the First Amendment, standing arises “not because [the plaintiffs] own rights of free expression are violated, but because of a judicial prediction or assumption that the [challenged statute’s] very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick, 413 U.S. at 612, 93 S.Ct. 2908. Here, the district court did not take Broadrick and its progeny into account in addressing standing, and its analysis fails to recognize that Canatella challenged the statutes both facially and as applied. We cannot selectively read the facial over-breadth claim out of Canatella’s complaint, and on that basis, reduce the scope of Canatella’s alleged harms for purposes of standing analysis. See American Civil Liberties Union v. Florida Bar, 999 F.2d 1486, 1495 (11th Cir.1993); Stretton v. Disciplinary Bd. of Supreme Court of Pennsylvania, 944 F.2d 137, 140 (3d Cir.1991). Canatella claims that the vagueness and overbreadth of the statutes result in censorship of protected speech by all California attorneys who push the envelope of zealous advocacy. Canatella does not allege that he suffers injury only if he is again sanctioned by a court, and investigated, and disciplined (or disbarred) by the State Bar; nor must he do so to demonstrate standing for an overbreadth claim. It is enough that Canatella shows that he and others in his position face a credible threat of discipline under the challenged statutes, and may consequently forego their expressive rights under the First Amendment. Nor have we reason to doubt that other California attorneys find themselves in Canatella’s dilemma. The alleged source of the harms that Canatella and others like him may face is the arguably vague and overbroad language of the challenged provisions under which California lawyers perform their jobs and are subject to discipline. He seeks an injunction preventing enforcement of the challenged provisions, and a declaration that" }, { "docid": "5039543", "title": "", "text": "the meeting; and that when he denied certain portions of the charges, he was admonished about his duty to be truthful and was threatened with further charges if he persisted in his denials. Plaintiff claims that such threats and admonitions caused him to forego offering further defense and showing mitigating circumstances. At the conclusion of the meeting the defendant decided that Wilson should be disciplined for violating three of the Department’s Rules and Regulations: Chapter IV, Sections 410.03 (Standard and Conduct), 410.67 (Immoral and Indecent Conduct), and 490.66 (Truthfulness). The complaint, inter alia, challenges Sections 490.66 and 410.03 in their entirety, and that part of Section 410.67 which prohibits members of the Department from engaging in “immoral and indecent conduct.” Standing In his July 26,1977, Findings and Recommendation, the federal magistrate recommended that the defendant’s motion to dismiss GPBA for lack of standing should be granted. The magistrate reasoned that the suit has not been declared a class action; that there is no allegation that any of GPBA’s members are adversely affected by the disciplinary action taken against Wilson; and that if Wilson’s suit is successful, GPBA will receive all the relief that it asks. As a general rule a party only has standing to attack the constitutionality of rules and regulations that have affected his or her interests. Here the complaint attacks Rules 410.03 and 410.67 on three grounds: that they are vague, that they are overbroad as applied, and that they are facially overbroad. Under Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), a party against whom a rule may constitutionally be applied cannot raise a facial overbreadth challenge, unless the party bases that challenge on alleged infringement of First Amendment rights. This exception is rationalized not by the fact that the litigant before the Court may have suffered a deprivation of a First Amendment right, but by “a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick, supra at 612, 93 S.Ct. at 2916. The rationalization" } ]

[ { "docid": "19814575", "title": "", "text": "or going outside between 3:59 and 4:15 A.M., he did testify that it was his practice to keep an eye on these things while performing his other duties as a specialist, that he complied with the rules and regulations governing the taking of special weather observations and that, until he took the special observation between 4:35 and 4:40 A.M., there was no indication of a drop in the ceiling that would require the taking of a special weather observation. He testified that he provided Marx with the updated weather information as soon as he determined that there was a drop in the ceiling. Plaintiffs claim, however, that an inference that the weather deteriorated to below landing mínimums before 4:15 A.M. must be drawn from the government’s destruction of certain records, known as “traces,” produced at Joplin FSS by two weather instruments, the ceilometer and the Runway Visual Value (RVV). One may infer from the intentional destruction of evidence that its production would have been unfavorable to an intentional spoliator. Dow Chemical Co. (U. K.) v. S. S. Giovanella D’Amico, 297 F.Supp. 699, 701 (S.D.N.Y.1969). An inference that relevant evidence would be unfavorable is also justifiable where it is within the control of a party in whose interest it would naturally be to produce it and he fails to do so, without satisfactory explanation, and instead produces weaker evidence or no evidence. Mid-Continent Petroleum Corp. v. Keen, 157 F.2d 310, 315 (8th Cir. 1946). But one cannot justify the drawing of such an inference where the destruction of evidence is unintentional or where failure to produce evidence is satisfactorily explained. Steinkemp testified in particular with respect to the ceilometer trace that the normal procedure was to place the rolled-up paper on which several days’ or a week’s record appears into a storage bin for perhaps 15 or 30 days. After that time, the trace is discarded. He did not know what became of the traces from September 20, 1974. Counsel for the government confirmed that an FAA manual requires the orderly destruction of records, some within 20 or 60days. Defendant contends" } ]

[ { "docid": "2736919", "title": "", "text": "condition before that time. [Mazen Deck, Exh. P.] Defendant raises a spoliation argument, that Plaintiff should face sanctions for losing the records it had a duty to preserve. [Mot. at 27-28.] Plaintiffs response that Defendant did not plead an affirmative defense for spoliation fails because Defendant did not need to do so. Under California law, spoliation by a party to an action is not a separate tort or claim and the parties are limited to evidentiary and discovery remedies. Cedars-Sinai Med. Ctr. v. Superior Court, 18 Cal.4th 1, 17-18, 74 Cal.Rptr.2d 248, 954 P.2d 511 (1998). See also Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 449-50 (stating that spoliation is not a claim or defense but a rule of evidence from which an adverse inference may be drawn). Furthermore, Defendant was unaware of the misplaced records at the time it answered the Complaint in June 2006, almost a year before Plaintiff informed it the records had been misplaced. “A federal trial court has the inherent discretionary power to make appropriate evidentiary rulings in response to the destruction or spoliation of relevant evidence.” Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir.1993). This includes the power to draw an adverse inference from the destruction of relevant evidence and the power to shift the burden of proof to the party that destroyed the evidence. Med. Lab. Mgmt. Consultants v. Am. Broad. Co., Inc., 306 F.3d 806, 824 (9th Cir.2002); Akiona v. United States, 938 F.2d 158, 160-61 (9th Cir.1991). The destruction of the evidence need not be in “bad faith” to warrant the imposition of sanctions. Glover, 6 F.3d at 1329. The Court finds that drawing an adverse inference from the loss of the records, i.e., that the records from Mr. Wyatt’s May, 2002 hospital visit are unfavorable to Plaintiff and, therefore, suggest Mr. Wyatt had a pre-existing condition during the October and December, 2002 medical treatment, is an appropriate sanction due to the prejudice their loss has caused Defendant in this action. The Policy does not cover pre-existing conditions arising within the sixth months prior to October 1, 2002." }, { "docid": "23026617", "title": "", "text": "does not destroy it: The fact of destruction satisfies the minimum requirement of relevance [under Fed.R.Evid. 401]: it has some tendency, however small, to make the existence of a fact at issue more probable than it otherwise would be_ Precisely how the document might have aided the party’s adversary, and what evidentiary shortfalls its destruction may be taken to redeem, will depend on the particular facts of each case. 692 F.2d at 218. The second rationale acts to deter parties from pretrial spoliation of evidence and “serves as a penalty, placing the risk of an erroneous judgment on the party that wrongfully created the risk.” Id. Destruction of potentially relevant evidence obviously occurs along a continuum of fault — ranging from innocence through the degrees of negligence to intentionality. The resulting penalties vary correspondingly. Some jurisdictions have created causes of action against intentional spoliators. See Williams v. California, 34 Cal.3d 18, 664 P.2d 137, 192 Cal.Rptr. 233 (1983); Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr. 829 (1984); Bondu v. Gurvich, 473 So.2d 1307 (Fla.Dist.Ct.App.1984); see generally Comment, Spoliation: Civil Liability for Destruction of Evidence, 20 U.Rich.L.Rev. 191 (1986). Some courts assign no adverse evidentia-ry consequences to destruction of evidence that is unintentional or satisfactorily explained. See, e.g., INA Aviation Corp. v. United States, 468 F.Supp. 695, 700 (E.D.N.Y.), aff'd mem., 610 F.2d 806 (2d Cir.1979). Others apply a panoply of sanctions against spoliators, including those who pri- or to litigation or to discovery requests discard evidence they know or should know will be relevant or discoverable. See, e.g., National Ass’n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 556-58 (N.D.Cal.1987) (VA destruction of radiation records warrants Fed.R.Civ.P. 11 sanctions); Struthers Patent Corp. v. Nestle Co., 558 F.Supp. 747, 763-66 (D.N.J.1981) (dicta). In the medical malpractice context, at least two state appellate courts have endorsed the creation of a rebuttable presumption that would shift the burden of persuasion to a health care provider who negligently alters or loses records of medical care. See Public Health Trust v. Valcin, 507 So.2d 596, 599-601 (Fla.1987) (negligent loss shifts burden to create" }, { "docid": "22217332", "title": "", "text": "at 89-90; Knightsbridge Marketing v. Promociones y Proyectos, 728 F.2d 572, 575 (1st Cir.1984); Commercial Ins. Co. v. Gonzalez, 512 F.2d 1307, 1314 (1st Cir.), cert. denied, 423 U.S. 838, 96 S.Ct. 65, 46 L.Ed.2d 57 (1975). It seems equally logical that where discovery material is deliberately suppressed, its absence can be presumed to have inhibited the unearthing of further admissible evidence adverse to the with-holder, that is, to have substantially interfered with the aggrieved party’s trial preparation. See Alexander v. National Farmers Organization, 687 F.2d 1173, 1205-06 (8th Cir.1982) (where documents deliberately destroyed, court should draw factual inferences adverse to party responsible); Telectron, Inc., 116 F.R.D. at 134 (where destruction motivated by “flagrant bad faith,” conduct “warrant[ed] the inference that the destroyed documents would have been harmful to [destroyer]”; resultant unavailability “must therefore be seen as prejudicial to [innocent party’s] interest in pursuing the full and fair litigation of its claims”); National Association of Radiation Survivors v. Turnage, 115 F.R.D. 543, 557 (N.D.Cal.1987) (“Where one party wrongfully denies another the evidence necessary to establish a fact in dispute, the court must draw the strongest allowable inferences in favor of the aggrieved party.”). The presumption, if it arises, should be a rebuttable one. It may be refuted by clear and convincing evidence demonstrating that the withheld material was in fact inconsequential. We are keenly aware of the stringency of this standard, yet we believe it to be an appropriate antidote for deliberate misconduct. A party who is guilty of, say, intentionally shredding documents in order to stymie the opposition, should not easily be able to excuse the misconduct by claiming that the vanished documents were of minimal import. Without the imposition of a heavy burden such as the “clear and convincing” standard, spoliators would almost certainly benefit from having destroyed the documents, since the opposing party could probably muster little evidence concerning the value of papers it never saw. As between guilty and innocent parties, the difficulties created by the absence of evidence should fall squarely upon the former. Where the documents have been intentionally withheld but not destroyed, the" }, { "docid": "23026619", "title": "", "text": "jury question on negligence), modifying 473 So. 2d 1297 (Fla.Dist.Ct.App.1984); Thor v. Boska, 38 Cal.App.3d 558, 569 n. 8, 113 Cal.Rptr. 296, 303 n. 8 (1974) (dicta); see also Barker v. Bledsoe, 85 F.R.D. 545 (W.D.Okla.1979) (negligent destruction of autopsy materials by expert hired in advance of litigation warrants more than re-buttable presumption). In the facts of this case, potential evidence was discarded by parties who were at least negligent and possibly grossly negligent in doing so. Judge Patel, in dealing with the destroyed YA radiation documents, correctly said that “where one party wrongfully denies another the evidence necessary to establish a fact in dispute, the court should draw the strongest allowable inferences in favor of the aggrieved party.” National Ass’n of Radiation Survivors, 115 F.R.D. at 557. The strength of the inference allowable obviously will vary according to the facts and evidentiary posture of a given case. Whether the defendant’s actions may result or must result in an inference that the missing evidence would be unfavorable to the spoliator, or result merely in a burden-shifting presumption, will depend upon a case by case analysis. See Public Health Trust v. Valcin, 507 So.2d at 600-01 (burden shift); Thor v. Boska, 38 Cal.App.3d at 569 n. 8, 113 Cal.Rptr. at 303 n. 8 (dicta re burden shift); Kane v. Northwest Special Recreation Ass’n, 108 Ill.Dec. 96, 155 Ill.App.3d 624, 508 N.E.2d 257, 261-62 (1987) (when plaintiffs mother washed away possible scientific evidence of mentally retarded daughter’s rape in civil suit against institution, proper to instruct jury on permissible adverse factual inference). IY. In this case, the District Court drew adverse factual inferences from the VA’s failure to call Dr. Guidry, its former resident, as a witness and from the discarding of the skull flap. Although, as discussed supra note 1, Kentucky law permits adverse inferences from a “missing witness,” an inference that osteomyelitis was of long standing in the skull flap cannot follow logically from Dr. Guidry’s failure to testify. Dr. Guidry was the resident who attended Mr. Welsh at the October 10 clinic visit and, according to the Welsh family," }, { "docid": "20215742", "title": "", "text": "dealing with the pre-litigation disposal of ultimately critical evidence by a negligent defendant[,]” it arrived at this conclusion by applying the “venerable [spoliation inference] principle” established in the 18th century English case of Armory v. Delamirie, 1 Strange 505, 98 Eng. Rep. 664 (K.B.1772), to “20th century evi-dentiary principles.” Id. at 1246. This suggests that Welsh applies under the federal law of spoliation as well. In Forest Laboratories, the district court explained the rationale for permitting an adverse inference to be drawn from even a merely negligent loss or destruction of evidence: “[The] sanction [of an adverse inference] should be available even for the negligent destruction of documents if that is necessary to further the remedial purpose of the inference. It makes little difference to the party victimized by the destruction of evidence whether that act was done willfully or negligently. The adverse inference provides the necessary mechanism for restoring the evi-dentiary balance. The inference is adverse to the destroyer not because of any finding of moral culpability, but because the risk that the evidence would have been detrimental rather than favorable should fall on the party responsible for its loss.” Forest Labs., 2009 WL 998402, at *5 (quoting Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 75 (S.D.N.Y.1991)). But Sixth Circuit cases decided after the 1988 Welsh case appear to hold that under federal law, ordinary negligence is not enough to impose an adverse-inference sanction for spoliation. These cases appear to require a finding of intent, or at least something more than ordinary negligence, to impose an adverse inference. Some of the cases even incorporate the intent element into the definition of “spoliation.” In Tucker v. General Motors Corp., 945 F.2d 405, 1991 WL 193458, at *2 (6th Cir. Sept 30, 1991)(unpublished table decision), the Sixth Circuit required a showing of bad faith to justify an adverse inference: We have recognized that spoliation of evidence occurs along a “continuum of fault,” from innocence through the varying degrees of negligence to intentional destruction. Likewise, a host of penalties may accompany the types of behavior manifested through this continuum. Welsh" }, { "docid": "8121066", "title": "", "text": "to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999) (citing Black’s Law Dictionary 1401 (6th ed. 1990)). There is no independent cause of action for spoliation under federal law, Lombard v. MCI Telecomm. Corp., 13 F.Supp.2d 621, 628 (N.D.Ohio 1998), but a district court’s inherent power to control litigation and protect the integrity of the judicial process allows it to impose sanctions against a party for spoliating evidence. Chambers v. NASCO, Inc., 501 U.S. 32, 45-46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991); Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir.2001); see also Fed.R.Civ.P. 37(b)(2). These sanctions may only be imposed against a party, however, upon a showing that (1) the evidence was relevant to the litigation, (2) the party was under a duty to preserve the evidence at the time it was altered or destroyed, and (3) the party acted with a requisite level of intent, which varies depending on the sanction sought. Nucor Corp. v. Bell, 251 F.R.D. 191, 194 (D.S.C.2008) (citations omitted). An adverse evidentiary inference against a party is one possible sanction for spoliation. This particular sanction, however, “is only appropriate if [that party’s] ‘willful conduct resulted in [the] loss or destruction [of the evidence].’ ” Id. (quoting Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir.1995)). Accordingly, courts have consistently refused to impose an adverse inference against a party where that party had no fault in the destruction of evidence and the evidence was in the custody or control of a third party. Mac- Steel, Inc. v. Emmet N. Am., 2006 WL 3334011, at *1 (E.D.Mich. Nov. 16, 2006); Bell, 251 F.R.D. at 196; Reynolds v. Crown Equipment Corp., 2008 WL 2465032, at *8 (W-D.Va. June 16, 2008); see also Silvestri, 271 F.3d at 590 (“[A] court must find some degree of fault to impose sanctions.”); 1 EDiscovery & Digital Evidence § 11:2 (Jay E. Grenig & William C. Gleisner, III, eds.2008). Given this backdrop, RCO is not entitled to an adverse" }, { "docid": "23698761", "title": "", "text": "procedural rule, and like all procedural rules, it governs conduct during the pendency of a lawsuit. Rule 37 does not, nor does any procedural rule, apply to actions that occurred prior to the lawsuit. Such a remedy must be found in the substantive law of the case. For example, several states have laws which shift the burden of proof when a party is responsible for discarding evidence or which allow juries to draw inferences about discarded evidence. This has been done in Kentucky. In Welsh v. United States, one member of this court noted that “the District Court’s drawing of inferences adverse to the defendant based on defendant’s failure to produce evidence that was within its control finds general support in Kentucky case law.” 844 F.2d 1239, 1245 (6th Cir.1988). The rationales for allowing adverse inferences are both evidentiary and deterrent. “The evidentiary rationale springs from the common sense notion that a party with notice of an item’s possible relevance to litigation who proceeds nonetheless to destroy it is more likely to have been threatened by the evidence than a party in the same position who does not destroy it[.]” Id. at 1246. The deterrent rationale “ ‘serves as a penalty, placing the risk of an erroneous judgment on the party that wrongfully created the risk.’ ” Id. “Destruction of potentially relevant evidence obviously occurs along a continuum of fault — ranging from innocence through the degrees of negligence to intentionality. The resulting penalties vary correspondingly. Some jurisdictions have created causes of action against intentional spoliators.” Id. “Some courts assign no adverse evidentiary consequences to destruction of evidence that is unintentional or satisfactorily explained. Others apply a panoply of sanctions against spoliators, including those who prior to litigation or to discovery requests discard evidence they know or should know will be relevant or discoverable.” Id. The rationales for drawing negative inferences against a defendant who is responsible for pre-litigation destruction of evidence are equally applicable to a plaintiff who is responsible for the destruction. The unavailability of evidence due to the plaintiffs pre-litigation destruction and the corresponding negative inferences, however," }, { "docid": "20215735", "title": "", "text": "Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F.Supp.2d 456, 467 (S.D.N.Y.2010)(citing Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002)). 2. Sanctions for spoliation Federal courts have broad discretion in fashioning appropriate sanctions for the spoliation of evidence. Adkins, 554 F.3d at 652. Proper spoliation sanctions should promote two goals: (1) fairness (i.e., “leveling the evidentiary playing field”); and (2) punishment to deter such improper conduct in the future, and to “plac[e] the risk of an erroneous judgment on the party that wrongfully created the risk.” See id. (citing Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir.1995)). The seriousness of the sanction to be imposed depends upon consideration of the following: (1) the degree of fault of the party who altered or destroyed [or lost] the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future. Donohoe v. Am. Isuzu Motors, Inc., 155 F.R.D. 515, 519 (M.D.Pa.1994)(quoting Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir.1994)). “Because failures to produce relevant evidence fall ‘along a continuum of fault — ranging from innocence through the degrees of negligence to intentionality,’ the severity of a sanction may, depending on the circumstances of the case, correspond to the party’s fault.” Adkins, 554 F.3d at 652-53 (quoting Welsh v. United States, 844 F.2d 1239, 1246 (6th Cir.1988), overruled on other grounds by Adkins, 554 F.3d at 652). Sanctions a court may impose include dismissal of a case, granting summary judgment, and instructing a jury that it may make an adverse inference against the spo-liating party based on its spoliation of the evidence. Id. at 653. In a case tried to the court rather than a jury, the sanctions may include the court’s drawing such an adverse inference. Other possible sanctions include monetary sanctions and precluding the spoliating party from" }, { "docid": "16294698", "title": "", "text": "of defendants’ work, defendants’ experts are unable to inspect the property and offer an opinion regarding whether defendant’s work was defective. D. Appropriate Sanction Destruction of evidence occurs, “along a continuum of fault ranging from innocence through the degree of negligence to intentionality. The resulting penalties vary accordingly”. Pirrello v. Gateway Marina, 2011 WL 4592689, at *4 (E.D.N.Y.2011). The Court must determine the appropriate sanction based on: (1) the fault of the litigant against whom sanctions are sought; and (2) the degree of prejudice suffered by the movant due to the destruction or loss of the evidence at issue. Townes, 2003 WL 22861921, at *3 (citation omitted). Traditional sanctions for spoliation include preclusion, monetary sanctions, or an adverse inference instruction. Residential Funding, 306 F.3d at 101. Sanctions may include dismissal of a suit however, dismissal should only be imposed in extraordinary circumstances. John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir.1988). There are alternative sanctions that would “level the evidentiary playing field”, such as adverse inference or preclusion sanctions. See id. These sanctions are severe and are reserved for egregious conduct or situations in which the loss of the relevant evidence has so prejudiced the moving party that preclusion or the adverse inference is necessary to restore the moving party to its pre-loss position. Residential Funding, 306 F.3d at 112. An adverse inference instruction is available when a party knowingly or negligently destroys evidence. Id. at *10 (the adverse inference was not appropriate as the defendant failed to demonstrate that the inspection of the destroyed part would have supported its defense). One of the purposes of an adverse inference is to restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party. Kronisch, 150 F.3d at 126. An instruction to the jury “that the [destroyed] evidence would have been unfavorable to the party responsible for its destruction, serves to restor[e] the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence.” Id. (alteration in original)." }, { "docid": "20215743", "title": "", "text": "would have been detrimental rather than favorable should fall on the party responsible for its loss.” Forest Labs., 2009 WL 998402, at *5 (quoting Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 75 (S.D.N.Y.1991)). But Sixth Circuit cases decided after the 1988 Welsh case appear to hold that under federal law, ordinary negligence is not enough to impose an adverse-inference sanction for spoliation. These cases appear to require a finding of intent, or at least something more than ordinary negligence, to impose an adverse inference. Some of the cases even incorporate the intent element into the definition of “spoliation.” In Tucker v. General Motors Corp., 945 F.2d 405, 1991 WL 193458, at *2 (6th Cir. Sept 30, 1991)(unpublished table decision), the Sixth Circuit required a showing of bad faith to justify an adverse inference: We have recognized that spoliation of evidence occurs along a “continuum of fault,” from innocence through the varying degrees of negligence to intentional destruction. Likewise, a host of penalties may accompany the types of behavior manifested through this continuum. Welsh v. United States, 844 F.2d 1239, 1245-47 (6th Cir.1988). In general, a court may not allow an inference that a party destroyed evidence that is in its control, unless the party did so in bad faith. See, e.g., Eaton Corp. v. Appliance Valves Corp., 790 F.2d 874, 878 (Fed.Cir.1986) (two conditions precedent are destruction of evidence and bad faith); Coates v. Johnson & Johnson, 756 F.2d 524, 551 (7th Cir.1985); S.C. Johnson & Son v. Louisville & Nashville Railroad Co., 695 F.2d 253, 258-59 (7th Cir.1982); Valentino v. United States Postal Service, 674 F.2d 56, 73 n. 31 (D.C.Cir.1982); and Vick v. Texas Employment Commission, 514 F.2d 734, 737 (5th Cir.1975) (bad faith, not merely negligence, must be manifested under the circumstances). (Emphasis added). Because the court found no evidence of bad faith on the part of the defendant, it affirmed the district court, which had “refused to allow the jury to draw an inference adverse to the defendant” where “insufficient evidence existed to show that intentional spoliation occurred.” Id. at *2-3. In Beck v." }, { "docid": "11466094", "title": "", "text": "2005 WL 3481423, at *6-9. “The prejudice inquiry ‘looks to whether the [spoiling party’s] actions impaired [the non-spoiling party’s] ability to go to trial or threatened to interfere with the rightful decision of the case.’ ” Leon, 464 F.3d at 959 (quoting United States ex rel. Wiltec Guam, Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 604 (9th Cir.1988)). Again, the Court finds no clear error in Judge Grewal’s finding of prejudice. “In the Ninth Circuit, spoliation of evidence raises a presumption that the destroyed evidence goes to the merits of the case, and further, that such evidence was adverse to the party that destroyed it.” Dong Ah Tire & Rubber Co., Ltd. v. Glasforms, Inc., No. C 06-3359 JF, 2009 WL 1949124, at *10 (N.D.Cal. July 2, 2009) (citing Phoceene Sous-Marine, S.A. v. U.S. Phosmarine, Inc., 682 F.2d 802, 806 (9th Cir.1982)); see Hynix Semiconductor, Inc. v. Rambus Inc., 591 F.Supp.2d 1038, 1060 (N.D.Cal.2006) (“[I]f spoliation is shown, the burden of proof logically shifts to the guilty party to show that no prejudice resulted from the spoliation” because that party “is in a much better position to show what was destroyed and should not be able to benefit from its wrongdoing”), rev’d on other grounds, 645 F.3d 1336, 1344-47 (Fed.Cir.2011); Nat’l Ass’n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 557 (N.D.Cal.1987) (“Where one party wrongfully denies another the evidence necessary to establish a fact in dispute, the court must draw the strongest allowable inferences in favor of the aggrieved party.”); see also Residential Funding, 306 F.3d at 109 (noting that holding victims of spoliation “ ‘to too strict a standard of proof regarding the likely contents of the destroyed evidence ... would ... allow parties who have ... destroyed evidence to profit from that destruction’ ”) (quoting Kronisch, 150 F.3d at 128). In Leon, the Ninth Circuit found that “because any number of the 2,200 files could have been relevant to IDX’s claims or defenses, although it is impossible to identify which files and how they might have been used. Because of the obvious relevance of [the despoiled]" }, { "docid": "20215738", "title": "", "text": "Wade v. Tiffin Motorhomes, Inc., 686 F.Supp.2d 174, 196 (N.D.N.Y.2009); see also Pension Comm., 685 F.Supp.2d at 469 (“It is well accepted that a court should always impose the least harsh sanction that can provide an adequate remedy [for the spoliation of evidence.]”). b. Sanctions in the form of an adverse inference, a presumption, and shifting burdens of production and persuasion Instructing a jury that, based on the spoliation of evidence, it may or must draw an adverse inference, or making a presumption against the spoliating party about a fact in dispute, is a less drastic spoliation sanction than the “terminating sanctions,” which a federal court may be impose. Pension Comm., 685 F.Supp.2d at 469. The same principles apply to the court in a case tried to the court rather than to a jury. “[WJhere one party wrongfully denies another the evidence necessary to establish a fact in dispute, the court should draw the strongest allowable inferences in favor of the aggrieved party.” National Ass’n of Radiation Survivors [v. Tumage], 115 F.R.D. [543,] 557 [N.D.Cal.1987]. The strength of the inference allowable obviously will vary according to the facts and evidentiary posture of a given case. Whether the defendant’s actions may result or must result in an inference that the missing evidence would be unfavorable to the spoliator, or result merely in a burden-shifting presumption, will depend upon a case by case analysis. Welsh v. United States, 844 F.2d 1239, 1247 (6th Cir.1988), overruled on other grounds by Adkins, 554 F.3d at 652 (internal quotation marks and citations omitted). c. Monetary sanctions Monetary sanctions are appropriate to punish the offending party for its actions [and] to deter the litigant’s conduct, sending the message that egregious conduct will not be tolerated. Awarding monetary sanctions serves the remedial purpose of compensating [the movant] for the reasonable costs it incurred in bringing [a motion for sanctions]. Pension Comm., 685 F.Supp.2d at 471 (internal quotation marks and citation omitted). 3. Case law concerning the elements of spoliation a. The duty to preserve evidence The standards of conduct regarding the duty to preserve evidence have evolved" }, { "docid": "8010614", "title": "", "text": "“lost” the records which would allow for positive identification as to which members of this class actually belong in the exposed classes. The Court finds that a more effective means of dealing with the group of persons who currently make up the control class would be to decertify the class and to rely upon the presumption articulated by Welsh v. United States, 844 F.2d 1239, 1249 (6th Cir. 1988). Welsh states that: The general rule is that the burden of proof lies where the pleadings place it, unless reasons of probability, policy, or fairness dictate otherwise. When, however, the customary approach would result in placing the burden upon a party who is not in a better position to produce the required proof, the courts have not hesitated to allocate the burden to the opposing party. That an adverse presumption may arise from the fact of missing evidence is a generally accepted principle of law ... In the facts of this case, potential evidence was discarded by parties who were at least negligent ... in doing so. Judge Patel, in dealing with the destroyed VA radiation documents, correctly said that “where one party wrongfully denies another the evidence necessary to establish a fact in dispute, the court should draw the strongest allowable inferences in favor of the aggrieved party.” National Ass’n of Radiation Survivors [v. Turnage], 115 F.R.D. [543] at 557 [(N.D.Cal.)]. The strength of the inference allowable obviously will vary according to the facts and evidentiary posture of a given ease. Whether the defendant’s actions may result or must result in an inference that the missing evidence would be unfavorable to the spoliator, or result merely in a burden-shifting presumption, will depend upon a case by ease analysis. Welsh at 1245-1247 (citations omitted). Thus, in the case at bar, the Court finds that the equitable solution to the situation created by Vanderbilt University’s loss of the relevant records is to decertify the “control group” class and to allow a rebuttable presumption that members of the class previously designated the “control group class” were exposed to the radioactive isotope. Thus, if" }, { "docid": "3338556", "title": "", "text": "federal law, as “the authority to impose sanctions for spoliated evidence arises ... from a court’s inherent power to control the judicial process” and because “a spoliation ruling is evidentiary in nature and federal courts generally apply their own evidentiary rules in both federal question and diversity matters.” Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir.2009) (en banc) (internal citations and quotation marks omitted). Spoliation sanctions, the crafting of which lie in the broad discretion of the trial court, “should serve both fairness and punitive functions.” Id. “Because failures to produce relevant evidence fall along a continuum of fault — ranging from innocence through the degrees of negligence to intentionality, the severity of a sanction may, depending on the circumstances of the case, correspond to the party’s fault.” Id. at 652-53 (internal citation omitted). Thus, a district court may impose various different kinds of sanctions for spoliated evidence, including dismissing a case, granting judgment to a prejudiced party, or, as factfinder, inferring a fact based on lost or destroyed evidence. Id. at 652-53; see also Kounelis v. Sherrer, 529 F.Supp.2d 503, 520 (D.N.J.2008). A spoliation sanction should be “molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine” and “designed to: (1) deter parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party.” West, 167 F.3d at 779. A grant of judgment in favor of a prejudiced party is appropriate only “if there is a showing of willfulness, bad faith, or fault on the part of the sanctioned party” and, as it is a “drastic remedy,” “should be imposed only in extreme circumstances.” Id. (citations omitted). “Bad faith” for these purposes means “destruction for the purpose of hiding adverse information.” In re Kmart Corp., 371 B.R. 823, 841 (N.D.Ill.2007) (citing Diersen v. Walker, No. 00 C 2437, 2003 WL 21317276, at *3 (N.D.Ill. Jun. 6, 2003)). “Fault” in this context" }, { "docid": "23026618", "title": "", "text": "(Fla.Dist.Ct.App.1984); see generally Comment, Spoliation: Civil Liability for Destruction of Evidence, 20 U.Rich.L.Rev. 191 (1986). Some courts assign no adverse evidentia-ry consequences to destruction of evidence that is unintentional or satisfactorily explained. See, e.g., INA Aviation Corp. v. United States, 468 F.Supp. 695, 700 (E.D.N.Y.), aff'd mem., 610 F.2d 806 (2d Cir.1979). Others apply a panoply of sanctions against spoliators, including those who pri- or to litigation or to discovery requests discard evidence they know or should know will be relevant or discoverable. See, e.g., National Ass’n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 556-58 (N.D.Cal.1987) (VA destruction of radiation records warrants Fed.R.Civ.P. 11 sanctions); Struthers Patent Corp. v. Nestle Co., 558 F.Supp. 747, 763-66 (D.N.J.1981) (dicta). In the medical malpractice context, at least two state appellate courts have endorsed the creation of a rebuttable presumption that would shift the burden of persuasion to a health care provider who negligently alters or loses records of medical care. See Public Health Trust v. Valcin, 507 So.2d 596, 599-601 (Fla.1987) (negligent loss shifts burden to create jury question on negligence), modifying 473 So. 2d 1297 (Fla.Dist.Ct.App.1984); Thor v. Boska, 38 Cal.App.3d 558, 569 n. 8, 113 Cal.Rptr. 296, 303 n. 8 (1974) (dicta); see also Barker v. Bledsoe, 85 F.R.D. 545 (W.D.Okla.1979) (negligent destruction of autopsy materials by expert hired in advance of litigation warrants more than re-buttable presumption). In the facts of this case, potential evidence was discarded by parties who were at least negligent and possibly grossly negligent in doing so. Judge Patel, in dealing with the destroyed YA radiation documents, correctly said that “where one party wrongfully denies another the evidence necessary to establish a fact in dispute, the court should draw the strongest allowable inferences in favor of the aggrieved party.” National Ass’n of Radiation Survivors, 115 F.R.D. at 557. The strength of the inference allowable obviously will vary according to the facts and evidentiary posture of a given case. Whether the defendant’s actions may result or must result in an inference that the missing evidence would be unfavorable to the spoliator, or result merely in a" }, { "docid": "23698762", "title": "", "text": "by the evidence than a party in the same position who does not destroy it[.]” Id. at 1246. The deterrent rationale “ ‘serves as a penalty, placing the risk of an erroneous judgment on the party that wrongfully created the risk.’ ” Id. “Destruction of potentially relevant evidence obviously occurs along a continuum of fault — ranging from innocence through the degrees of negligence to intentionality. The resulting penalties vary correspondingly. Some jurisdictions have created causes of action against intentional spoliators.” Id. “Some courts assign no adverse evidentiary consequences to destruction of evidence that is unintentional or satisfactorily explained. Others apply a panoply of sanctions against spoliators, including those who prior to litigation or to discovery requests discard evidence they know or should know will be relevant or discoverable.” Id. The rationales for drawing negative inferences against a defendant who is responsible for pre-litigation destruction of evidence are equally applicable to a plaintiff who is responsible for the destruction. The unavailability of evidence due to the plaintiffs pre-litigation destruction and the corresponding negative inferences, however, do not necessarily mandate dismissing the ease or granting summary judgment. Cases are often tried even though a crucial piece of evidence is unavailable. The plaintiff must then rely on other sources of proof to establish what might more easily have been proved if the missing evidence was available. In a product liability case based on a design defect, the plaintiff could demonstrate through expert testimony, without the availability of the specific product, that the product’s design was defective; and therefore, each product, including the unavailable product, was defective. Even in product liability cases not based on design defects, the plaintiff is not prohibited from trying to prove its case without the specific product. The district court in the consolidated case brought by the Beils’ estate recognized that a case may still proceed against Lakewood despite the unavailability of the evidence. The court did so by allowing the estate to proceed with its ease despite the fact that it was prohibited from introducing Yuellig’s report. CONCLUSION For the reasons stated above, the decision of the" }, { "docid": "23665226", "title": "", "text": "institute such a procedure, its attendant failure to produce clearly responsive documents and information, and its subsequent submission of papers, pleadings, and motions based on asserted facts directly refuted by the nonproduced material violate the requirements of Rules 26(g) and 11 and require the imposition of sanctions. B. Sanctions for the Destruction of Relevant and Discoverable Documents Under the Court’s Inherent Powers The court has the inherent authority to sanction a litigant for the destruction of relevant and potentially discoverable documents. As the court in Wm. T. Thompson Co. v. General Nutrition Corp., 593 F.Supp. 1443 (C.D.Cal.1984), observed, [sanctions may be imposed against a litigant who is on notice that documents and information in its possession are relevant to litigation, or potential litigation, or are reasonably calculated to lead to the discovery of admissable evidence, and destroys such documents and information. While a litigant is under no duty to keep or retain every document in its possession once a complaint is filed, it is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admis sible evidence, is reasonably likely to be requested during discovery, and/or is the subject of a pending discovery request. Id. at 1455; see Graham v. Teledyne-Continental Motors, 805 F.2d 1386, 1390 n. 9 (9th Cir.1986) (“sanctions available to punish those who alter or destroy evidence”); Struthers Patent Corp. v. Nestle Co., 558 F.Supp. 747, 765-66 (D.N.J.1981) (the destruction of documents which the party knew or should have known would be relevant to a lawsuit soon to be filed is sanctionable); Bowmar Instrument Corp. v. Texas Instruments, Inc., 25 Fed.R.Serv.2d (Callaghan) 423, 426-27 (N.D.Ind.1977) (same). There is no question that relevant documents were destroyed and are now permanently lost; defendant’s counsel conceded this in open court. Among the destroyed documents were exception sheets, statistical quality control data, and other information contained in the CPS temporary files; the CPS site surveys thrown out by Tomasek; and certain pieces of agency' correspondence, including the letter critical of Thomas Verrill. By the very" }, { "docid": "20215737", "title": "", "text": "introducing evidence on the subject matter of the spoliated evidence. See Pension Comm., 685 F.Supp.2d at 469; Lexington Ins. Co. v. Tubbs, No. 06-2847-STA, 2009 WL 1586862, at *3 (W.D.Tenn. June 3, 2009). a. Sanctions that terminate the litigation The granting of judgment in favor of a party that has been prejudiced by the spoliation of relevant evidence is a drastic sanction, and should be reserved only for those cases where “ ‘there is a showing of willfulness, bad faith, or fault on the party of the sanctioned party.’” BancorpSouth Bank v. Herter, 643 F.Supp.2d 1041, 1060 (W.D.Tenn.2009); see also Tubbs, 2009 WL 1586862, at *3. Granting judgment against a party is a sanction of “last resort” which should be imposed only in extreme circumstances where an alternative, less drastic sanction or set of sanctions are insufficient to both cure any prejudice suffered as a result of the spoliation, and to punish such conduct. See Tubbs, 2009 WL 1586862, at *3 (citing West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999)); Wade v. Tiffin Motorhomes, Inc., 686 F.Supp.2d 174, 196 (N.D.N.Y.2009); see also Pension Comm., 685 F.Supp.2d at 469 (“It is well accepted that a court should always impose the least harsh sanction that can provide an adequate remedy [for the spoliation of evidence.]”). b. Sanctions in the form of an adverse inference, a presumption, and shifting burdens of production and persuasion Instructing a jury that, based on the spoliation of evidence, it may or must draw an adverse inference, or making a presumption against the spoliating party about a fact in dispute, is a less drastic spoliation sanction than the “terminating sanctions,” which a federal court may be impose. Pension Comm., 685 F.Supp.2d at 469. The same principles apply to the court in a case tried to the court rather than to a jury. “[WJhere one party wrongfully denies another the evidence necessary to establish a fact in dispute, the court should draw the strongest allowable inferences in favor of the aggrieved party.” National Ass’n of Radiation Survivors [v. Tumage], 115 F.R.D. [543,] 557 [N.D.Cal.1987]." }, { "docid": "23026616", "title": "", "text": "kind of adverse consequence should flow from the fact of destruction of evidence, but rather how best to integrate the teaching of Armory into a coherent scheme of 20th century evidentiary principles that includes inferences, presumptions, and shifting burdens of production and persuasion. Compare Nation-Wide Check Corp. v. Forest Hills Distributors, Inc., 692 F.2d 214, 216-20 (1st Cir.1982) (adverse inference from document destruction sufficient to shift burden of tracing proceeds of money order sales) with Stanojev v. Ebasco Services Inc., 643 F.2d 914, 923-24 & n. 7 (2d Cir.1981) (adverse inference from non-production of personnel records not sufficient to cure plaintiff's failure to make out prima facie age discrimination case). As the Nation-Wide Check court explained, the policy rationales for this type of adverse inference are both evidentiary and deterrent. The evidentiary rationale springs from the common sense notion that a party with notice of an item’s possible relevance to litigation who proceeds nonetheless to destroy it is more likely to have been threatened by the evidence than a party in the same position who does not destroy it: The fact of destruction satisfies the minimum requirement of relevance [under Fed.R.Evid. 401]: it has some tendency, however small, to make the existence of a fact at issue more probable than it otherwise would be_ Precisely how the document might have aided the party’s adversary, and what evidentiary shortfalls its destruction may be taken to redeem, will depend on the particular facts of each case. 692 F.2d at 218. The second rationale acts to deter parties from pretrial spoliation of evidence and “serves as a penalty, placing the risk of an erroneous judgment on the party that wrongfully created the risk.” Id. Destruction of potentially relevant evidence obviously occurs along a continuum of fault — ranging from innocence through the degrees of negligence to intentionality. The resulting penalties vary correspondingly. Some jurisdictions have created causes of action against intentional spoliators. See Williams v. California, 34 Cal.3d 18, 664 P.2d 137, 192 Cal.Rptr. 233 (1983); Smith v. Superior Court, 151 Cal.App.3d 491, 198 Cal.Rptr. 829 (1984); Bondu v. Gurvich, 473 So.2d 1307" }, { "docid": "11466095", "title": "", "text": "from the spoliation” because that party “is in a much better position to show what was destroyed and should not be able to benefit from its wrongdoing”), rev’d on other grounds, 645 F.3d 1336, 1344-47 (Fed.Cir.2011); Nat’l Ass’n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 557 (N.D.Cal.1987) (“Where one party wrongfully denies another the evidence necessary to establish a fact in dispute, the court must draw the strongest allowable inferences in favor of the aggrieved party.”); see also Residential Funding, 306 F.3d at 109 (noting that holding victims of spoliation “ ‘to too strict a standard of proof regarding the likely contents of the destroyed evidence ... would ... allow parties who have ... destroyed evidence to profit from that destruction’ ”) (quoting Kronisch, 150 F.3d at 128). In Leon, the Ninth Circuit found that “because any number of the 2,200 files could have been relevant to IDX’s claims or defenses, although it is impossible to identify which files and how they might have been used. Because of the obvious relevance of [the despoiled] files to the litigation ... the district court did not clearly err in its finding of prejudice.” Leon, 464 F.3d at 960. Likewise here, though neither Apple nor the Court may ever know the contents of any destroyed Samsung emails, the fact that the emails of key Samsung witnesses were among those destroyed permits the reasonable inference that Apple was prejudiced by Samsung’s spoliation. Nonetheless, while the Court agrees with Judge Grewal’s conclusion that Samsung’s conduct justifies imposition of an adverse inference instruction, the Court does not find that such a strong adverse inference instruction is justified by this record. As noted above, courts must choose “the least onerous sanction corresponding to the willfulness of the destructive act and the prejudice suffered by the victim.” Schmid, 13 F.3d at 79. Moreover, any exercise of a court’s inherent powers must be exercised with great restraint and discretion. See Chambers, 501 U.S. at 50, 111 S.Ct. 2123; Roadway Exp. v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). Certainly, an adverse inference instruction" } ]

[ { "docid": "12335833", "title": "", "text": "good faith under § 1325(a)(3), which applies to modification. § 1329(b)(1). II. Dismissal for Bad Faith. “To determine if a petition has been filed in bad faith courts are guided by the standards used to evaluate whether a plan has been proposed in bad faith. 11 U.S.C. § 1325(a)(3)”. In re Eisen, 14 F.3d 469, 470 (9th Cir.1994). In both instances the court must review the “totality of the circumstances”. Id.; In re Leavitt, 171 F.3d 1219, 1224-25 (9th Cir.1999). The Ninth Circuit Court of Appeals addressed dismissal of a Chapter 13 case on the basis of bad faith in: Although not specifically listed, bad faith is a “cause” for dismissal under § 1307(c). [In re Eisen, 14 F.3d 469, 470 (9th Cir.1994)] (“A Chapter 13 petition filed in bad faith may be dismissed ‘for cause’ pursuant to 11 U.S.C. § 1307(c).”); [In re Hopkins, 201 B.R. 993, 995 (D.Nev.1996)] (holding that the debtors’ filing of frivolous tax returns with no intention to pay taxes warranted dismissal of a Chapter 13 petition for bad faith). Therefore, it follows that a finding of bad faith based on egregious behavior can justify dismissal with prejudice. [In re Tomlin, 105 F.3d 933, 937 (4th Cir.1997)]; [In re Morimoto, 171 B.R. 85, 86 (9th Cir. BAP 1994)]; In re Huerta, 137 B.R. 356, 374 (Bankr.C.D.Cal.1992). We hold that bad faith is “cause” for a dismissal of a Chapter 13 case with prejudice under § 349(a) and § 1307(c). * * * * Bad faith, as cause for the dismissal of a Chapter 13 petition with prejudice, involves the application of the “totality of the circumstances” test. Eisen, 14 F.3d at 470. The bankruptcy court should consider the following factors: (1) whether the debtor “misrepresented facts in his [petition or] plan, unfairly manipulated the Bankruptcy Code, or otherwise [filed] his Chapter 13 [petition or] plan in an inequitable manner,” id. (citing In re Goeb, 675 F.2d 1386, 1391 (9th Cir.1982)); (2) “the debtor’s history of filings and dismissals,” id. (citing In re Nash, 765 F.2d 1410, 1415 (9th Cir.1985)); (3) whether “the debtor only intended" } ]

[ { "docid": "4595316", "title": "", "text": "13 plan. Under § 1325(a)(5), the court may not confirm a chapter 13 plan absent a finding that the “plan has been proposed in good faith and not by any means forbidden by law.” Under § 1307(c), the court may dismiss a chapter 13 case for “cause.” “Cause,” in turn, includes a filing in bad faith. In re Eisen, 14 F.3d 469, 470 (9th Cir.1994); In re Morimoto, 171 B.R. 85, 86 (9th Cir. BAP 1994). “Bad faith,” as cause for dismissal pursuant to § 1307(c), depends on the totality of the circumstances, but certainly includes unfair manipulation of the Bankruptcy Code. Eisen, 14 F.3d at 470; In re Warren, 89 B.R. 87, 90-91 (9th Cir. BAP 1988). Cf. In re Leavitt, 171 F.3d 1219, 1224-25 (9th Cir.1999) (regarding test for a dismissal “with prejudice” pursuant to Bankruptcy Code § 349(a) grounded on bad faith). Here, the totality of the circumstances shows that Tran filed this chapter 13 case solely for purposes of avoiding the second deed of trust under circumstances where such avoidance was not available to her in chapter 7, and where no independent reason exists for her subsequent chapter 13 filing. See In re Warren, 89 B.R. at 95 (9th Cir.BAP1988) (holding that the court should not confirm chapter 13 plans “that are in essence veiled chapter 7 cases”); In re Caldwell, 895 F.2d 1123, 1126 (6th Cir.1990). Under Tran’s proposed chapter 13 plan, only a relatively small amount of arrearag-es on the debts secured by the first deed of trust are to be cured. No tax debts or other prepetition unsecured priority claims are to be paid; there are none. It is true that a chapter 13 plan need not return a meaningful dividend to general unsecured claimants as a condition to confirmation. However, as the Ninth Circuit stated in In re Goeb, 675 F.2d 1386, 1391 (9th Cir.1982), “Nominal-repayment is one piece of evidence that the debtor is unfairly manipulating chapter 13 and therefore acting in bad faith.” Moreover, Tran is solvent in a balance sheet sense, and her monthly expenses are less than her" }, { "docid": "8937400", "title": "", "text": "In particular, he argues that, even where a debtor has satisfied the mechanical requirements of § 1325(b), the bankruptcy court needs to consider the sufficiency of the assets devoted to plan payments, including in this case debtors’ failure to include Social Security income and their deduction as expenses of payments on secured debts that are not necessary to their maintenance or support in their calculation of projected disposable income. One of the requirements for confirmation of a chapter 13 plan is that it be proposed in good faith. § 1325(a)(3). “Good faith” is not defined in the Bankruptcy Code. The Ninth Circuit has held that “the proper inquiry is whether the [debtors] acted equitably in proposing their Chapter 13 plan.” Goeb v. Heid (In re Goeb), 675 F.2d 1386, 1390 (9th Cir.1982). In making that inquiry, the court applies a “totality of the circumstances” test, taking into consideration (1) whether the debtor misrepresented facts, unfairly manipulated the Bankruptcy Code or otherwise proposed the plan in an inequitable manner; (2) the history of the debtor’s filings and dismissals; (3) whether the debtor intended only to defeat state court litigation; and (4) whether the debtor’s behavior was egregious. Leavitt, 171 F.3d at 1224 (applying same factors for good faith filing of chapter 13 petition). The bankruptcy court in this case took each of these factors into consideration. The court expressly found that there was no evidence “that Debtors misrepresented facts in their plan or unfairly manipulated the Code,” had any history of filings and dismissals, or had filed chapter 13 to de feat state court litigation. In re Welsh, 440 B.R. 836, 847 (Bankr.D.Mont.2010). In considering the fourth factor, the court rejected the trustee’s argument that debtors’ continuing payments on debts secured by what he characterized as luxury items, along with their payment of one of their debts that allowed their adult daughter to retain a car, while paying their unsecured creditors only 8.5 percent of the claims, was egregious behavior that showed bad faith. The court found that the ATVs that debtors retained and on which they continued to make payments" }, { "docid": "15502112", "title": "", "text": "medical expenses; 9) The frequency with which the debtor has sought bankruptcy relief; 10) The motivation and sincerity of the debtor in seeking Chapter 13 relief; and 11) The burden which the plan’s administration would place upon the trustee. Fid. & Cas. Co. of N.Y v. Warren (In re Warren), 89 B.R. 87, 93 (9th Cir. BAP 1987) (citing In re Brock, 47 B.R. 167, 169 (Bankr.S.D.Cal.1985), which in turn quoted United States v. Estus (In re Estus), 695 F.2d 311, 317 (8th Cir.1982)). The Ninth Circuit has likewise amplified the criteria to be employed by parties and bankruptcy courts in applying the “totality of circumstances” chapter 13 good faith analysis: [In determining whether the debtor has acted in good faith, a] bankruptcy court should consider the following factors: (1) whether the debtor “misrepresented facts in his [petition or] plan, unfairly manipulated the Bankruptcy Code, or otherwise [filed] his Chapter 13 [petition or] plan in an inequitable manner,” id [citing In re Goeb, 675 F.2d at 1391]; (2) “the debtor’s history of filings and dismissals,” [citing In re Nash, 765 F.2d 1410, 1415 (9th Cir.1985) ]; (3) whether “the debtor only intended to defeat state court litigation,” [citing In re Chinichian, 784 F.2d at 1445-46]; and (4) whether egregious behavior is present, (citing Colonial Auto Ctr. v. Tomlin (In re Tomlin), 105 F.3d [933] at 937 [ (4th cir.1997) ]; In re Bradley, 38 B.R. 425, 432 (Bankr.C.D.Cal.1984)). Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1224 (9th Cir.1999). But while a WarrenlEstus and Leavitt “factors approach” may be helpful to bankruptcy courts faced with good faith issues, it must be remembered that these lists are guidelines to be understood as “the beginning and not the end of the analysis.” In re Nelson, 343 B.R. at 677 n. 10. In summary, then, in the Ninth Circuit, in determining whether a debtor has proposed a plan in good faith under § 1325(a)(3), a bankruptcy court must examine the totality of the circumstances. Stated another way, in evaluating good faith, a bankruptcy court must never view one factor in isolation, even" }, { "docid": "20241796", "title": "", "text": "in good faith and not by any means forbidden by law.” To determine whether a plan has been proposed in bad faith the Court must review the “totality of the circumstances”. Leavitt, 171 F.3d at 1224-25; Eisen v. Curry (In re Eisen), 14 F.3d 469, 470 (9th Cir.1994); In re Gress, 18 Mont. B.R. 30, 34, 257 B.R. 563, 567 (Bankr.D.Mont.2000). In Leavitt, the Ninth Circuit held that in determining whether a Chapter 13 plan is proposed in good faith, a bankruptcy court should consider (1) whether debtors misrepresented facts in their plan or unfairly manipulated the Code, (2) the debtors’ history of filings and dismissals, (3) whether the debtors intended to defeat state court litigation, and (4) whether egregious behavior is present. Leavitt, 171 F.3d at 1224-25 (9th Cir.1999); Drummond v. Cavanagh (In re Cavanagh), 250 B.R. 107, 114 (9th Cir. BAP 2000). Pruyn argues that Debtor’s case and Plan are not filed in good faith, but the only evidence in the record supporting Pruyn’s argument is Linda’s filing of two bankruptcy cases. No evidence exists in the record of misrepresentations of facts in her plan or unfair manipulation of the Code, state court litigation which the Debtor intended to defeat when her Plan proposed to pay allowed secured claims in full, and nothing which suggests egregious behavior is present. In sum, after reviewing the totality of the circumstances the Court finds and concludes that the Debtor has satisfied her burden under § 1325(a)(3) of showing that she proposed her Plan, and her proposed amended Plan, in good faith and not by any means forbidden by law. III. Pruyn’s Motion to Modify Stay. Under 11 U.S.C. § 362(g), a creditor has the burden of proving that a debtor does not have equity in property, while the debtor has the burden of proof on all other issues to show that the stay should not be modified. In re Mittlestadt, 20 Mont. B.R. 46, 52 (Bankr.D.Mont.2002); In re Hungerford, 19 Mont. B.R. 103, 133-34 (Bankr.D.Mont.2001); In re National Environmental Waste Corp., 191 B.R. 832, 836 (Bankr.C.D.Cal.1996), aff'd, 129 F.3d 1052 (9th" }, { "docid": "11265670", "title": "", "text": "1994) (per curiam) (internal quotation marks omitted). However, the Debtors point to the factors we outlined in Leavitt, 171 F.3d at 1224. Those are: (1) whether the debtor misrepresented facts in his petition or plan, unfairly manipulated the Bankruptcy Code, or otherwise filed his Chapter 13 petition or plan in an inequitable manner; (2) the debtor’s history of filings and dismissals; (3) whether the debtor only intended to defeat state court litigation; and (4) whether egregious behavior is present. Id. (citations, internal quotation marks, and brackets omitted). The bankruptcy court was well aware of those factors, and declared that the second factor did not cut against the Debtors. It did, however, find manipulation of the bankruptcy proceed ings (first factor) and interference with the state proceedings (third factor). Moreover, although it did not specifically mention the egregiousness of the Debtors’ behavior, it plainly thought that the behavior was quite troubling at the very least (fourth factor). The BAP agreed with the bankruptcy court’s analysis. See Khan I, 523 B.R. at 185-87. The Debtors attack those determinations and concentrate a good deal of their firepower on Leavitt’s third factor. Leavitt, 171 F.3d at 1224; see also Chinichian v. Campolongo (In re Chinichian), 784 F.2d 1440, 1445 (9th Cir. 1986). They focus on the word “only” and take that to mean that defeating state court litigation had to be the sole motive, but we have not so treated it. For example, in Leavitt itself we decided that avoidance was merely the “primary” motive. Leavitt, 171 F.3d at 1225; see also Eisen, 14 F.3d at 470 (if only intent is to defeat state com't litigation, that is bad faith); Chinichian, 784 F.2d at 1445 (multitude of factors showed bad faith, including the real purpose of the filing). The Debtors do not appear to recognize that the factors are simply factors to consider and that not every one of them must be met. That rather blinds them to the overarching requirement that what matters is “the ‘totality of the circumstances.’ ” Eisen, 14 F.3d at 470; see also Ho v. Dowell (In re Ho)," }, { "docid": "2436314", "title": "", "text": "Good Faith. Section 1325(a)(3) provides that in order to confirm a chapter 13 plan, the court must find that “the plan has been proposed in good faith and not by any means forbidden by law.” 11 U.S.C. § 1325(a)(3). Trustee argued that Debtors did not propose the Amended Plan in good faith because Debtors “suddenly found God,” Debtors had not been making the Charitable Contribution prepetition, and the Charitable Contribution was unnecessary to maintain or support Debtors. Trustee’s Objection, at 1. The court disagreed, holding that it had “observed Kevin’s demeanor while testifying under oath, and [found] no reason to doubt his credibility or the sincerity of his religious conversion and beliefs regarding tithing.” Cavanagh, 242 B.R. at 712. It also disregarded Trustee’s argument that the timing of the Charitable Contribution intimated bad faith, holding that “Congress having made no such distinction between past and present practices of the debtor in making charitable contributions in § 1325(b)(2)(A), this Court will make none.” Id. Therefore, it held that Debtors had proposed the Amended Plan in good faith. On appeal, Trustee contends that the bankruptcy court failed to consider the totality of the circumstances when it found that the Amended Plan was proposed in good faith. Specifically, he argues that the Debtors’ inability to make the Charitable Contribution until after they filed their bankruptcy petition was unfair manipulation of the Bankruptcy Code and egregious behavior sufficient to deny confirmation. Given that the debtors have no prior history of charitable contributions, it is incredible that the debtors can take the position that the disposable income requirement gives them unfettered license to begin making charitable contributions while their unsecured creditors are being paid nothing. Appellant’s Opening Br., at 13. Trustee also contends that the Amended Plan was intended to strip down a lien on Debtors’ car. Under the totality of the circumstances, he argues that the court erred in determining that the Amended Plan was proposed in good faith. We disagree. In Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1224 (9th Cir.1999), the Ninth Circuit held that in determining whether a chapter" }, { "docid": "20306332", "title": "", "text": "for cure-by-sale of Debtors’ defaults under their loans from Valley Bank and Chase. F. 1325(a)(3) — Good Faith. Chase, Valley Bank and Provident all object that Debtors’ Plan is not proposed in good faith. Section 1325(a)(3) requires that “the plan has been proposed in good faith and not by any means forbidden by law.” To determine whether a plan has been proposed in bad faith the Court must review the “totality of the circumstances”. Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1224-25 (9th Cir.1999); Eisen v. Curry (In re Eisen), 14 F.3d 469, 470 (9th Cir.1994); In re Gress, 257 B.R. 563, 567, 18 Mont. B.R. 30, 34 (Bankr.D.Mont.2000). In Leavitt, the Ninth Circuit held that in determining whether a Chapter 13 plan is proposed in good faith, a bankruptcy court should consider (1) whether debtors misrepresented facts in their plan or unfairly manipulated the Code, (2) the debtors’ history of filings and dismissals, (3) whether the debtors intended to defeat state court litigation, and (4) whether egregious behavior is present. Leavitt, 171 F.3d at 1224-25 (9th Cir.1999); Drummond v. Cavanagh (In re Cavanagh), 250 B.R. 107, 114 (9th Cir. BAP 2000). Keith testified that Debtors have not filed any prior bankruptcy cases, and are not involved in state court litigation. Provident objects that the Debtors failed to list the value of the liquor license in their Schedules. However, Keith testified that the liquor license was paid for with funds from the Cottage Inn, LLC, and Debtors listed their interest in the Cottage Inn, LLC, in their Schedules and even on their petition until the Trustee moved to dismiss the ineligible co-debtor. The only evidence on the liquor license is that it is worth $400. The Court finds insufficient evidence to find that Debtors misrepresented facts in their Plan or Schedules, or that they unfairly manipulated the Code. No evidence exists in the record of egregious behavior by the Debtors. In sum, after reviewing the totality of the circumstances the Court finds and concludes that the Debtors satisfied their burden under § 1325(a)(3) of showing that they proposed" }, { "docid": "20306331", "title": "", "text": "a residence as in Siegfried. In re Murphy-Reiner, 19 Mont. B.R. 141, 143-44 (D.Mont.2001). As in Siegfried, the Debtors’ Plan provides for the payment in full of Valley Bank’s and Chase’s allowed claims, including interest, through the sale of their security. Siegfried, 16 Mont. B.R. at 302. The Debtors’ “drop dead” date is a year shorter than the 3 year term in Siegfried, and their $200 plan payment is $60 more than in Siegfried. Id. at 291, 302. During the term of the Plan the record shows that Valley Bank, Chase, and Provident are provided adequate protection through a substantial equity cushion over and above the allowed secured claims by the value of the Debtors’ residence and, in Provident’s case, commercial property at the Cottage Inn and bare land across the highway. Finally, as in Siegfried the Debtors have applied for and were granted approval of employment of a realtor. 16 Mont. B.R. at 301. Based upon the above, this Court concludes that the Debtors’ Plan satisfies the requirements set forth in Siegfried and Murphy-Reiner for cure-by-sale of Debtors’ defaults under their loans from Valley Bank and Chase. F. 1325(a)(3) — Good Faith. Chase, Valley Bank and Provident all object that Debtors’ Plan is not proposed in good faith. Section 1325(a)(3) requires that “the plan has been proposed in good faith and not by any means forbidden by law.” To determine whether a plan has been proposed in bad faith the Court must review the “totality of the circumstances”. Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1224-25 (9th Cir.1999); Eisen v. Curry (In re Eisen), 14 F.3d 469, 470 (9th Cir.1994); In re Gress, 257 B.R. 563, 567, 18 Mont. B.R. 30, 34 (Bankr.D.Mont.2000). In Leavitt, the Ninth Circuit held that in determining whether a Chapter 13 plan is proposed in good faith, a bankruptcy court should consider (1) whether debtors misrepresented facts in their plan or unfairly manipulated the Code, (2) the debtors’ history of filings and dismissals, (3) whether the debtors intended to defeat state court litigation, and (4) whether egregious behavior is present. Leavitt, 171" }, { "docid": "20241795", "title": "", "text": "in full of all allowed secured claims, including interest, through the sale of their security. Siegfried, 16 Mont. B.R. at 302. The Debtor’s proposed shortened “drop dead” date is 2 years shorter than the 3 year term in Siegfried, while her $100 plan payment is less than in Siegfried,. Id. at 291, 302. During the term of the Plan the record shows that Pruyn, Poteet/Dorman and other secured creditors are provided adequate protection through a substantial equity cushion over and above the allowed secured claims by the value of the Debtor’s residence. Finally, as in Siegfried the Debtor has applied for and was granted approval of employment of a realtor. Id. at 301. Based upon the above, this Court preliminarily concludes that the Debtor’s proposed amended Plan satisfies the requirements set forth in Siegfried and Murphy-Reiner for cure-by-sale of Debtor’s defaults under their loans from Pruyn, Po-teet/Dorman and other secured creditors. Lastly Pruyn objects that Debt- or’s petition and Plan is not proposed in good faith. Section 1325(a)(3) requires that “the plan has been proposed in good faith and not by any means forbidden by law.” To determine whether a plan has been proposed in bad faith the Court must review the “totality of the circumstances”. Leavitt, 171 F.3d at 1224-25; Eisen v. Curry (In re Eisen), 14 F.3d 469, 470 (9th Cir.1994); In re Gress, 18 Mont. B.R. 30, 34, 257 B.R. 563, 567 (Bankr.D.Mont.2000). In Leavitt, the Ninth Circuit held that in determining whether a Chapter 13 plan is proposed in good faith, a bankruptcy court should consider (1) whether debtors misrepresented facts in their plan or unfairly manipulated the Code, (2) the debtors’ history of filings and dismissals, (3) whether the debtors intended to defeat state court litigation, and (4) whether egregious behavior is present. Leavitt, 171 F.3d at 1224-25 (9th Cir.1999); Drummond v. Cavanagh (In re Cavanagh), 250 B.R. 107, 114 (9th Cir. BAP 2000). Pruyn argues that Debtor’s case and Plan are not filed in good faith, but the only evidence in the record supporting Pruyn’s argument is Linda’s filing of two bankruptcy cases. No" }, { "docid": "2436315", "title": "", "text": "faith. On appeal, Trustee contends that the bankruptcy court failed to consider the totality of the circumstances when it found that the Amended Plan was proposed in good faith. Specifically, he argues that the Debtors’ inability to make the Charitable Contribution until after they filed their bankruptcy petition was unfair manipulation of the Bankruptcy Code and egregious behavior sufficient to deny confirmation. Given that the debtors have no prior history of charitable contributions, it is incredible that the debtors can take the position that the disposable income requirement gives them unfettered license to begin making charitable contributions while their unsecured creditors are being paid nothing. Appellant’s Opening Br., at 13. Trustee also contends that the Amended Plan was intended to strip down a lien on Debtors’ car. Under the totality of the circumstances, he argues that the court erred in determining that the Amended Plan was proposed in good faith. We disagree. In Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1224 (9th Cir.1999), the Ninth Circuit held that in determining whether a chapter 13 plan was proposed in good faith, a bankruptcy court should consider (1) whether the debtor misrepresented facts in his plan or unfairly manipulated the Code, (2) the debtor’s history of filings and dismissals, (3) whether the debtor intended to defeat state court litigation, and (4) whether egregious behavior is present. Id. (citations omitted). Although the plain language of § 1325(b)(2)(A) does not restrict the timing of a debtor’s tithing or prevent a debt- or from increasing the amount of a charitable contribution on the eve of bankruptcy or after a bankruptcy petition is filed, these are factors that ought be taken into consideration when looking at the totality of the circumstances to determine whether a debtor has proposed a chapter 13 plan in good faith and in compliance with § 1325(a)(3). Indeed, the 1998 Act’s legislative history indicates that “[w]e have tried desperately to craft language that would protect and avoid and prevent fraud. No one ... wish[es] to lay any groundwork that would allow someone to fraudulently use the church or a charitable" }, { "docid": "391028", "title": "", "text": "A chapter 13 petition which is filed in bad faith may be dismissed “for cause” under § 1307(c). Leavitt I, 171 F.3d at 1224; Eisen v. Curry (In re Eisen), 14 F.3d 469, 470 (9th Cir.1994) (per curiam); In re Ho, 274 B.R. at 876-77. “To determine if a petition has been filed in bad faith courts are guided by the standards used to evaluate whether a plan has been proposed in bad faith.” Eisen, 14 F.3d at 470. In reaching this determination, a bankruptcy court must review the “totality of the circumstances” to determine if a petition was filed in bad faith. Id.; Goeb v. Heid (In re Goeb), 675 F.2d 1386, 1390-91 (9th Cir. 1982). See Lundin & Brown, supra, at § 334.1, at ¶ [6] (“the test for bad-faith dismissal of a Chapter 13 case under § 1307(c) is similar to the analysis of good faith required for confirmation under § 1325(a)(3)”). In Leavitt I, the Ninth Circuit expanded on Eisen and held that when considering dismissal of a chapter 13 case due to bad faith in its filing, a bankruptcy court should consider: (1) whether the debtor misrepresented facts in his petition or plan, unfairly manipulated the Code, or otherwise filed his petition or plan in an inequitable manner; (2) the debtor’s history of filings and dismissals; (3) whether the debtor intended to defeat state court litigation; and (4) whether egregious behavior is present. Leavitt I, 171 F.3d at 1224; see also In re Ho, 274 B.R. at 876; Collier, supra, ¶ 1307.04[10]. When seeking confirmation of a plan, the debtor, as plan proponent, has the burden of proof on the issues of whether both the case and the plan were filed in good faith. § 1325(a)(3), (7). When a creditor seeks dismissal due to bad faith, the applicable burden of proof is not as clear. We acknowledge that Leavitt II states that, for purposes of determining whether cause exists to dismiss a chapter 13 case based on bad faith, the “[d]ebtor bears the burden of proving that the petition was filed in good faith.” Leavitt" }, { "docid": "21398912", "title": "", "text": "are served on all creditors. Finally, the Debtor must prove by a preponderance of evidence that the new case was filed in good faith as to the creditors sought to be stayed. § 362(c)(3)(B). Section 362(c)(3) does not define good faith for purposes of this determination. The concept of what constitutes a bad faith bankruptcy filing is, however, well defined by pre-BAPCPA case law as being a “totality of circumstances” test. In view of the minimal guidance from Congress, the Court will follow the reasoning of the other courts that have imported pre-BAPCPA case law into § 362(c)(3)(B). Accordingly, the Court will utilize the “totality of circumstances” test to assist its determination of whether the Debtor filed her new case in good faith as to the creditors she seeks to stay. § 362(c)(3)(B); Charles II at 217-18; see also In re Havner, 336 B.R. 98, 103-104 (Bankr.M.D.N.C. 2006); In re Baldassaro, 338 B.R. 178, 187, (Bankr.D.N.H.2006). In this circuit, the “totality of circumstances” test for determining whether a debtor filed a chapter 13 case in good faith includes: 1) whether debtor misrepresented facts in the petition or the plan, unfairly manipulated the Code or otherwise filed the current chapter 13 plan or petition in an inequitable manner; 2) debt- or’s history of filings and dismissals; 3) whether debtor only intended to defeat state court litigation; and 4) whether egregious behavior is present. In re Leavitt, 171 F.3d 1219, 1224 (9th Cir.1999); see also In re Villanueva, 274 B.R. 836, 841 (9th Cir. BAP 2002) (listing factors to evaluate whether a chapter 13 plan has been proposed in good faith). In this case, the Court concludes Debtor has provided evidence of her good faith by a preponderance of the evidence. Debtor states she is determined to complete her plan, which proposes a $500 monthly payment and a 45% dividend to unsecured creditors. This is an improvement over her prior case and evidence of good faith. Further, Debtor says, without much explanation, she must complete the plan for the benefit of her children and she has made the necessary financial changes to" }, { "docid": "20241794", "title": "", "text": "the other secured claims is $25,700.23, not including interest, which combined with Pruyn’s claim totals $213,896.11. Subtracting that amount from $258,000 leaves an equity cushion of $44,103.89 to pay all secured claims in full including interest, which the Court finds constitutes adequate protection. Pruyn objects to confirmation on the grounds the Debtor’s Plan violates 11 U.S.C. § 1322(b)(2) by modifying the rights of holders of secured claims which are secured only by a security interest in the Debtor’s principal residence, because of the delay in paying property taxes. The Debtor’s Plan provides for a “cure-by-sale” to Pruyn and other secured creditors, which this Court decided may satisfy the confirmation requirements of 11 U.S.C. § 1322(b)(3), (b)(5) & (c)(1) . In re Siegfried, 16 Mont. B.R. 289, 301 (Bankr. D.Mont.1997). The United States District Court for the District of Montana has held that a debtor’s default may be cured by sale of a residence as in Siegfried. In re Murphy-Reiner, 19 Mont. B.R. 141, 143-44 (D.Mont.2001). As in Siegfried, the Debtor’s Plan provides for the payment in full of all allowed secured claims, including interest, through the sale of their security. Siegfried, 16 Mont. B.R. at 302. The Debtor’s proposed shortened “drop dead” date is 2 years shorter than the 3 year term in Siegfried, while her $100 plan payment is less than in Siegfried,. Id. at 291, 302. During the term of the Plan the record shows that Pruyn, Poteet/Dorman and other secured creditors are provided adequate protection through a substantial equity cushion over and above the allowed secured claims by the value of the Debtor’s residence. Finally, as in Siegfried the Debtor has applied for and was granted approval of employment of a realtor. Id. at 301. Based upon the above, this Court preliminarily concludes that the Debtor’s proposed amended Plan satisfies the requirements set forth in Siegfried and Murphy-Reiner for cure-by-sale of Debtor’s defaults under their loans from Pruyn, Po-teet/Dorman and other secured creditors. Lastly Pruyn objects that Debt- or’s petition and Plan is not proposed in good faith. Section 1325(a)(3) requires that “the plan has been proposed" }, { "docid": "2641772", "title": "", "text": "left to the sound discretion of the bankruptcy court. In re Leavitt, 171 F.3d at 1222-23; In re Marsch, 36 F.3d 825, 828 (9th Cir.1994); Greatwood v. United States (In re Greatwood), 194 B.R. 637, 639 (9th Cir. BAP 1996), aff'd, 120 F.3d 268 (9th Cir.1997). The same factors govern whether Gress filed his petition or his plans in bad faith. In re Eisen, 14 F.3d at 470; In re Leavitt, 171 F.3d at 1224. 257 B.R. at 568. In Leavitt, 171 F.3d at 1224, the Ninth Circuit held that in determining whether a chapter 13 plan was proposed in good faith a bankruptcy court should consider (1) whether the debtor misrepresented facts in his or her petition or plan, unfairly manipulated the Code, or otherwise filed his or her petition or plan in an inequitable manner; (2) the debtor’s history of filings and dismissals; (3) whether the debtor intended to defeat state court litigation; and (4) whether egregious behavior is present. The Leavitt assessment remains in use in this circuit. In re Khan, 523 B.R. 175, 185 (9th Cir. BAP 2014); see also In re Cavanagh, 250 B.R. 107, 114 (9th Cir. BAP 2000). After considering the four Leavitt factors and the evidence admitted in this case, the Court concludes that the Debtor did not file his Chapter 13 petition or propose his Plan in good faith, and that dismissal of the case with prejudice is in the best interests of creditors and the estate. The first Leavitt factor is whether the debtor misrepresented facts in the petition or plan, unfairly manipulated the Code, or otherwise filed his petition or plan in an inequitable manner. The Court finds,that the Trustee has satisfied his burden of proof on the first Leavitt factor. Ex. 11 shows that Weik failed to list his prior bankruptcy cases filed within the last 8 years where required near the top of page 2. Weik signed his petition stating under penalty of perjury that the information in the petition is true and correct. It was not true and correct with respect to his prior bankruptcy cases," }, { "docid": "8000801", "title": "", "text": "amount of the open book account debt allegedly owed to Great Tone can be ascertained to the penny. But not even Great Tone contends that Debtor is personally liable. Therein lies the rub. This is not a case where all that is lacking is a final determination as to the debtor’s liability. In addition, even if Debtor is hable, it is not self evident that she is liable for the entire amount of the debt. While a dispute as to liability will not “necessarily render a debt unliquidated,” Slack, 187 F.3d at 1074, the nature of this dispute does. 2. Bad Faith Section 1307(c) provides that a court may dismiss a chapter 13 case “for cause.” The Ninth Circuit has concluded that a debtor’s bad faith in filing a chapter 13 petition is cause for dismissal under § 1307(c). See In re Eisen, 14 F.3d 469 (9th Cir.1994). In determining whether a chapter 13 petition has been filed in bad faith, a bankruptcy court must review the “totality of the circumstances.” Eisen, 14 F.3d at 470 (quoting In re Goeb, 675 F.2d 1386, 1391 (9th Cir.1982)). A bankruptcy court should consider the following factors: (1) whether the debtor misrepresented facts in his or her petition or plan, unfairly manipulated the Bankruptcy Code or otherwise filed the Chapter 13 petition or plan in an inequitable manner; (2) the debtor’s history of filings and dismissals; (3) whether the debtor’s only purpose in filing for chapter 13 protection is to defeat state court litigation; and (4) whether 'egregious behavior is present. In re Leavitt, 171 F.3d 1219, 1224 (9th Cir.1999). The bankruptcy court found that Debtor filed her petition in bad faith, stating as follows: Although the two lawsuits against Debt- or commenced well before Debtor filed her bankruptcy petition, the court finds that the timing of Debtor’s filing, just prior to the establishment of a trial date by the state court for the litigation with DHE, supports a finding of bad faith with respect to the filing'of the present case. See Eisen v. Curry (In re Eisen), 14 F.3d 469, 470-71 (9th" }, { "docid": "20241784", "title": "", "text": "Pruyn objects that Debtor’s Plan is not filed in good faith as required under § 1325(a)(3) because Linda filed her petition on the even of a trustee’s sale as in her prior case. Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1224-25 (9th Cir. 1999). Pruyn argues that Linda delayed hiring a realtor until after it filed its motion to modify stay, and has filed two bankruptcy cases, which constitutes lack of good faith. Pruyn’s brief does not point out any misrepresentation of facts in Debt- or’s Plan or instances where she unfairly manipulated the Code, or describe egregious behavior. Leavitt, 171 F.3d at 1224-25. Because the Plan is not confirmable, Pruyn argues, confirmation should be denied and the stay modified. Linda argues that Pruyn’s motion makes false allegations regarding her income and payment of taxes and insurance, which are contradicted by Schedules I and J. Linda contends that she is honest but unfortunate and seeks a fresh start and continuation of the stay to pay her creditors through her equity in her proposed amended Plan. With respect to the tax deed, Linda argues that is a red herring, and that according to Mooring’s Claim 4 she has until September 26, 2010, ten days after her new proposed “drop dead” date, to redeem the taxes. Claim 4 and attachment thereto state the date the debt was incurred was 09/26/2007. Further, Linda argues that Mooring must file a motion to modify stay before taking a tax deed, and notes that Mooring has not objected to confirmation. Linda argues that she has filed her petition and Plan in good faith as shown by her shortening the sale and “drop dead” date by a year, and that lifting the stay would result in the loss of all her equity and leave her homeless and unable to pay other creditors. She argues that there is no evidence of misrepresentation of facts in the petition or plan, no evidence of state court litigation, and that her two bankruptcy cases are not sufficient proof of lack of good faith. She contends that her Plan fully" }, { "docid": "8000802", "title": "", "text": "470 (quoting In re Goeb, 675 F.2d 1386, 1391 (9th Cir.1982)). A bankruptcy court should consider the following factors: (1) whether the debtor misrepresented facts in his or her petition or plan, unfairly manipulated the Bankruptcy Code or otherwise filed the Chapter 13 petition or plan in an inequitable manner; (2) the debtor’s history of filings and dismissals; (3) whether the debtor’s only purpose in filing for chapter 13 protection is to defeat state court litigation; and (4) whether 'egregious behavior is present. In re Leavitt, 171 F.3d 1219, 1224 (9th Cir.1999). The bankruptcy court found that Debtor filed her petition in bad faith, stating as follows: Although the two lawsuits against Debt- or commenced well before Debtor filed her bankruptcy petition, the court finds that the timing of Debtor’s filing, just prior to the establishment of a trial date by the state court for the litigation with DHE, supports a finding of bad faith with respect to the filing'of the present case. See Eisen v. Curry (In re Eisen), 14 F.3d 469, 470-71 (9th Cir.1994) (finding bad faith where the debtor timed the filing to frustrate a state court action with the automatic stay provisions of 11 U.S.C. § 362). Debtor’s contention that her filing is attributable to lack of funding for the litigation is undermined by her purchase of the 50% interest of her sister’s real property, secured by the Debtor’s automobile, just prior to the petition date. These circumstances warrant dismissal of the case with prejudice Memorandum of Decision and Order Dismissing Chapter 13 Case, 7:18 — 8:3 (footnote omitted). We conclude that the bankruptcy court abused its discretion in dismissing Debtor’s case, because it applied an incorrect standard when it determined that Debtor filed her petition in bad faith. Although the court tangentially mentioned the fourth factor, it relied exclusively on the third factor and did not base its bad faith finding on the totality of the circumstances. A “court must make its good-faith determination in the light of all militating factors.” Goeb, 675 F.2d at 1390. See also In re Street, 55 B.R. 763, 764" }, { "docid": "20241783", "title": "", "text": "Trustee Linda testified that she has not taken out any other loans, has no checking account or credit cards and only one savings account DISCUSSION I. Contentions of the Parties. Pruyn’s motion is filed based upon 11 U.S.C. § 362(d)(1) for “cause.” Pruyn objects to confirmation because the Plan is not feasible as required under § 1325(a)(6), and Linda is unable to make the Plan payments, and cites In re Bassett, 413 B.R. 778 (Bankr.D.Mont.2009), and that the Trustee’s continued objection based on feasibility is entitled to significant weight. Pruyn argues that Linda will not have the ability to redeem the residence from tax sale in July 2010, and that the automatic stay will not preclude the holder of the tax certificate from obtaining a tax deed after the redemption period expires. The Debtor disagrees and argues the stay applies. Pruyn argues that the Plan violates § 1322(b)(2) by modifying its rights, even though its note has fully matured and the Plan provides for payment in full, by delaying payment of property taxes when due. Pruyn objects that Debtor’s Plan is not filed in good faith as required under § 1325(a)(3) because Linda filed her petition on the even of a trustee’s sale as in her prior case. Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1224-25 (9th Cir. 1999). Pruyn argues that Linda delayed hiring a realtor until after it filed its motion to modify stay, and has filed two bankruptcy cases, which constitutes lack of good faith. Pruyn’s brief does not point out any misrepresentation of facts in Debt- or’s Plan or instances where she unfairly manipulated the Code, or describe egregious behavior. Leavitt, 171 F.3d at 1224-25. Because the Plan is not confirmable, Pruyn argues, confirmation should be denied and the stay modified. Linda argues that Pruyn’s motion makes false allegations regarding her income and payment of taxes and insurance, which are contradicted by Schedules I and J. Linda contends that she is honest but unfortunate and seeks a fresh start and continuation of the stay to pay her creditors through her equity in her proposed" }, { "docid": "12649252", "title": "", "text": "creditors.” We reject Leavitt’s proposed test, which is without foundation in law. Bad faith, as cause for the dismissal of a Chapter 13 petition with prejudice, involves the application of the “totality of the circumstances” test. Eisen, 14 F.3d at 470. The bankruptcy court should consider the following factors: (1) whether the debtor “misrepresented facts in his [petition or] plan, unfairly manipulated the Bankruptcy Code, or otherwise [filed] his Chapter 13 [petition or] plan in an inequitable manner,” id (citing In re Goeb, 675 F.2d 1386, 1391 (9th Cir.1982)); (2) “the debtor’s history of filings and dismissals,” id. (citing In re Nash, 765 F.2d 1410, 1415 (9th Cir.1985)); (3) whether “the debtor only intended to defeat state court litigation,” id. (citing In re Chinichian, 784 F.2d 1440, 1445-46 (9th Cir.1986)); and (4) whether egregious behavior is present, Tomlin, 105 F.3d at 937; In re Bradley, 38 B.R. 425, 432 (Bankr.C.D.Cal.1984). A finding of bad faith does not require fraudulent intent by the debtor. [N]either malice nor actual fraud is required to find a lack of good faith. The bankruptcy judge is not required to have evidence of debtor illwill directed at creditors, or that debtor was affirmatively attempting to violate the law-malfeasance is not a prerequisite to bad faith. In re Powers, 135 B.R. 980, 994 (Bankr.C.D.Cal.1991) (relying on In re Waldron, 785 F.2d 936, 941 (11th Cir.1986)). We agree with the BAP that the record provides ample support for the bankruptcy court’s findings that Leavitt’s conduct in his Chapter 13 case amounted to bad faith and can fairly be described as egregious. Application of the four factors listed above to the facts in this case reinforces this conclusion. As to the first bad faith factor of misrepresentation and inequitable manipulation of the code, Leavitt’s dishonesty pervaded the proceedings. He failed to fully disclose his assets and financial dealings. His initial schedules omitted some assets and undervalued others. His expenses were inflated. His first plan offered nothing to his largest unsecured creditor, Soto. This was inequitable, considering Leavitt’s available assets and income. When ordered by the bankruptcy court to amend" }, { "docid": "2641771", "title": "", "text": "B.R. 563 (Bankr. D.Mont.2000); Eisen, 14 F.3d at 470. In affirming this Court’s dismissal of a Chapter 13 case with prejudice, the district court in this district has adopted the Leavitt “totality of the circumstances” list of factors. In re Kreilick, 18 Mont. B.R. 419, 421-22 (D. Mont. 2000). A finding of bad faith does not require fraudulent intent by the debtor. In re Hungerford, 19 Mont. B.R. 103, 130 (Bankr. D. Mont. 2001); Gress, 257 B.R. at 568. This Court noted in Gress : [N]either malice nor actual fraud is required to find a lack of good faith. The bankruptcy judge is not required to have evidence of debtor ill will directed at creditors, or that debtor was affirmatively attempting to violate the law-malfeasance is not a prerequisite to bad faith. In re Powers, 135 B.R. 980, 994 (Bankr. C.D.Cal.1991) (relying on In re Waldron, 785 F.2d 936, 941 (11th Cir.1986)). The determination of whether a debt- or filed a petition or plan in bad faith so as to justify dismissal for cause is left to the sound discretion of the bankruptcy court. In re Leavitt, 171 F.3d at 1222-23; In re Marsch, 36 F.3d 825, 828 (9th Cir.1994); Greatwood v. United States (In re Greatwood), 194 B.R. 637, 639 (9th Cir. BAP 1996), aff'd, 120 F.3d 268 (9th Cir.1997). The same factors govern whether Gress filed his petition or his plans in bad faith. In re Eisen, 14 F.3d at 470; In re Leavitt, 171 F.3d at 1224. 257 B.R. at 568. In Leavitt, 171 F.3d at 1224, the Ninth Circuit held that in determining whether a chapter 13 plan was proposed in good faith a bankruptcy court should consider (1) whether the debtor misrepresented facts in his or her petition or plan, unfairly manipulated the Code, or otherwise filed his or her petition or plan in an inequitable manner; (2) the debtor’s history of filings and dismissals; (3) whether the debtor intended to defeat state court litigation; and (4) whether egregious behavior is present. The Leavitt assessment remains in use in this circuit. In re Khan, 523" } ]

[ { "docid": "22675889", "title": "", "text": "the relevant factors, we find that the remarks did not affect Baptiste’s substantial rights. Accordingly, because we find that the remarks were not plainly inappropriate and did not, in any event, affect Baptiste’s substantial rights, we hold that the district court did not plainly err in allowing the prosecutor’s closing argument. III. For the reasons stated above, we reject Baptiste’s allegations of trial mismanagement on the part of the district court, and his conviction is therefore AFFIRMED. . Although represented by counsel on appeal, Baptiste filed a pro se supplemental brief al- leging ineffective assistance of counsel at trial. Claims of ineffective assistance of counsel may be raised on direct appeal only where the record conclusively establishes ineffective assistance. See United States v. King, 119 F.3d 290, 295 (4th Cir.1997). Otherwise, the proper avenue for such claims is a 28 U.S.C. § 2255 motion filed with the district court. See Massaro v. United States, 538 U.S. 500, 504-06, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) (recognizing that “in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance” because the trial record is “often incomplete or inadequate for [addressing such claims on direct review,]” thereby risking the failure of \"[e]ven meritorious claims”); see also United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). Baptiste alleges, among other things, that trial counsel failed to effectively represent him due to a conflict of interest resulting from counsel's prior representation in an unrelated matter of one of Baptiste’s co-defendants, who pleaded guilty before trial. Our review of the record shows that it does not conclusively establish any of the alleged grounds for Baptiste's ineffective assistance claim. Therefore, because the claim is not properly before us, we do not address it as part of this appeal. . We find unavailing Baptiste's position that, although he failed to meet his burden of establishing the Remmer presumption, the court should nonetheless have sua sponte held voir dire. Baptiste cites no case law suggesting that the district court has such a duty. As we have made" } ]

[ { "docid": "15379391", "title": "", "text": "exhibit list, a witness list, jury instructions, or any objections to the government’s filings. Finally, Demik’s new attorney filed a motion for an evidentiary hearing regarding ineffective assistance. That motion did not make any specific allegations about Demik’s trial counsel but stated that Dem-ik was requesting the hearing to develop a record that would allow subsequent review of his ineffective assistance claim. The district court granted the motion for a continuance of sentencing but denied a new trial. The court stated that Demik’s supplemental motion for new trial had not been filed timely, so it did not consider the arguments from that motion. It did consider Demik’s allegations of ineffective assistance that he had raised in his initial motion for new trial. The court construed Demik’s pro se motion as having argued that counsel was ineffective because counsel had (1) refused his direct instructions regarding critical motions and final argument and (2) failed to make numerous njotions or objections. These allegations, the court concluded, were insufficient, citing, among other authorities and reasons, Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.2000): “[C]onelusory allegations are insufficient to raise cognizable claims of ineffective assistance of counsel.” The court also denied an evidentiary hearing. Demik argues that the court erred in that ruling and contends that he raised that issue through the various motions described above. II. We have not previously articulated what standard of review to use, on direct appeal, to evaluate the denial of an eviden-tiary hearing regarding a claim of ineffective assistance of counsel. In cases involving petitions for writs of habeas corpus under 28 U.S.C. § 2255, we review the denial of an evidentiary hearing for abuse of discretion. We now apply that standard on direct appeal. III. Demik contends that a district court must hold an evidentiary hearing on a claim of ineffective assistance of counsel unless the record conclusively shows the defendant is entitled to no relief. We need not decide whether that standard applies here in a case on direct appeal, because conclusional allegations are insufficient to require an evidentiary hearing. Even Bartholomew, 974 F.2d at" }, { "docid": "22279472", "title": "", "text": "security guards, babysitters, custodians, and truck drivers). The District Court therefore did not err when it en hanced defendant’s sentence for her abuse of a position of trust. E. Ineffective Assistance of Counsel Defendant’s final argument is that she was unconstitutionally deprived of effective assistance of counsel at sentencing. Under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in order to establish such a violation, a defendant must show that (1) “counsel’s performance was deficient” such that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment,” id. at 687, 104 S.Ct. 2052; and (2) “the deficient performance prejudiced the defense,” id., such that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id. at 694, 104 S.Ct. 2052. When faced with a claim for ineffective assistance of counsel on direct appeal, we may: (1) decline to hear the claim, permitting the appellant to raise the issue as part of a subsequent petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255; (2) remand the claim to the district court for necessary factfinding; or (3) decide the claim on the record before us. United States v. Leone, 215 F.3d 253, 256 (2d Cir.2000). In light of our “baseline aversion to resolving ineffectiveness claims on direct review,” United States v. Salameh, 152 F.3d 88, 161 (2d Cir.1998), and the Supreme Court’s recent statement that “in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective-assistance,” Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 1694, 155 L.Ed.2d 714 (2003), we decline to review defendant’s claim of ineffective assistance of counsel on the record now before us. Defendant may pursue this claim in a § 2255 petition. See United States v. Khedr, 343 F.3d 96, 100 (2d Cir.2003). III. Conclusion For the reasons set forth above, we dismiss without prejudice defendant’s claim for ineffective assistance of counsel at sentencing. We have considered all of defendant’s other" }, { "docid": "3620016", "title": "", "text": "of the case is “even less binding in the context of interlocutory orders.” Id. -, see also Sussman v. Crawford, 548 F.3d 195, 198 (2d Cir.2008). Upon our review of the record as augmented by post-argument briefing, we conclude for the reasons discussed below, and contrary to our August 2007 mandate, that the district court abused its discretion by requiring Marks’s ineffective assistance claim to be brought in a post-conviction motion pursuant to 28 U.S.C. § 2255. Ineffective Assistance Claim Raised Prior to Imposition of Sentence The district court’s oral and written statements addressing Marks’s ineffective assistance claim indicate that the court considered sentencing a prerequisite to reviewing that claim. The government argues unconvincingly that given the Supreme Court’s and this Court’s general aversion to deciding ineffective assistance claims on direct review, “the district court’s refusal to entertain Marks’s motion before he was sentenced cannot be deemed an abuse of discretion.” We disagree. The legal standards applicable to Marks’s ineffective assistance claim are well-established. A defendant’s Sixth Amendment right to counsel is violated when he receives ineffective assistance. To prove such ineffective assistance, a defendant must show: (1) “that counsel’s representation fell below an objective standard of reasonableness”; and (2) “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Pham v. United States, 317 F.3d 178, 182 (2d Cir.2003) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “A defendant suffers a Sixth Amendment injury where his attorney fails to convey a plea offer” because “[d]efense counsel have a constitutional duty to give their clients professional advice on the crucial decision of whether to accept a plea offer from the government.” Id. As such, counsel’s failure to convey a plea offer falls below an objective standard of reasonableness and thus satisfies Strickland’s first prong. See id. at 183 (“[T]here is no dispute that failure to convey a plea offer is unreasonable performance.”) (citing Cullen v. United States, 194 F.3d 401, 404 (2d Cir.1999) (“[T]here can be no doubt that counsel must always" }, { "docid": "23072594", "title": "", "text": "the bottom of the Guidelines range, Katz argued that the two-point increase in the Second Agreement had been absent from the First Agreement and that he thought that Thompson’s failure to accept the more favorable offer resulted from “some terrible advice from an attorney who clearly was not familiar with either the sentencing guidelines or federal criminal procedure.” The district court sentenced Thompson to 78 months’ incarceration, the bottom of his Guidelines range. On April 23, 1999, Thompson filed, pro se, a timely notice of appeal. Katz subsequently filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that, after reviewing the record, he believed that there were no non-frivolous issues to be raised on appeal. The government, in turn, moved for dismissal of the appeal, or in the alternative for summary affirmance. We denied both motions and directed Katz to brief the issue of whether Velez was ineffective in failing to advise Thompson adequately concerning the First Agreement. Instead of doing so, Katz submitted a new motion asking us to hold further briefing in abeyance and to remand the case to the district court so that an evidentiary hearing could be conducted on the ineffective assistance issue. He argued that “the record is ... bereft of any reference to the rejected, but obviously more beneficial, initial plea offer,” and that “[i]t is therefore impossible for appellant’s present counsel to meaningfully address” the issue of trial counsel’s possible ineffective assistance in that regard without an evidentiary hearing to develop the record. The government opposes such a remand and cross-moves for the dismissal of Thompson’s appeal or, in the alternative, for summary affirmance, arguing that we should not consider an ineffective assistance of counsel claim that cannot be decided by us on the existing record and that such claims should be made later in a 28 U.S.C. § 2255 habeas corpus petition. DISCUSSION In support of its position, the government cites Billy-Eko v. United States, 8 F.3d 111 (2d Cir.1993). The government contends that, under Billy-Eko and its progeny, this Court has" }, { "docid": "22780654", "title": "", "text": "because he misunderstands how the sentencing guidelines will apply to his case. So long as the district court tells a defendant the statutory range of punishment that he faces and informs him that the sentencing guidelines will be used in determining the ultimate sentence, the plea is binding. United States v. Burney, 75 F.3d 442, 445 (8th Cir.1996). This is true even where the misunderstanding is caused by defense counsel’s erroneous estimation of what the ultimate sentence will be. Id. The plea agreement that Mr. Ramirez-Hernandez signed stated that the possession count carried with it a minimum sentence of five and a maximum sentence of forty years and that the district court would apply the sentencing guidelines in determining the ultimate sentence. At the plea hearing, the district court confirmed that Mr. Ramirez-Hernandez was aware of these facts. We therefore conclude that the district court did not abuse its discretion by denying the motion to withdraw the guilty plea. On appeal, however, Mr. Ramirez-Hernandez recasts the issue from one of confusion to one of ineffective assistance of counsel. He contends that his attorney’s supposed misstatements amounted to ineffective assistance of counsel and that such ineffective assistance is a fair and just reason to let him withdraw his guilty plea. Claims of ineffective assis tance of counsel, however, are usually best litigated in collateral proceedings, United States v. Payton, 168 F.3d 1103, 1105 n. 2 (8th Cir.1999), cert. denied, 528 U.S. 843, 120 S.Ct. 113, 145 L.Ed.2d 96 (1999). We will consider ineffective-assistance claims on direct appeal only where the record has been fully developed, where not to act would amount to a plain miscarriage of justice, or where counsel’s error is readily apparent. United States v. Cook, 356 F.3d 913, 919-20 (8th Cir.2004). Here, the record is not sufficiently developed to let us pass on the merits of Mr. Ramirez-Hernandez’s claim. Most of the questions asked at the hearing on Mr. Ramirez-Hernandez’s motion to withdraw his plea were asked by the district court. A properly developed record for purposes of determining a claim of ineffective assistance of counsel would include" }, { "docid": "17353861", "title": "", "text": "Reyes-Vejerano, 276 F.3d at 98. The mere “possibility of conflict is insufficient to impugn a criminal conviction.” Sullivan, 446 U.S. at 350, 100 S.Ct. 1708. C. Ineffective Assistance of Counsel Apart from the purported conflict of interest, Ramirez-Benitez also charges ineffective assistance of counsel in other respects. He contends that Rivera, his court-appointed counsel, failed adequately to explain the plea agreement and its consequences to him; failed to file a motion requesting the continuance of the sentencing date after the pre-sentence report was disclosed belatedly; failed to object to errors within the pre-sentence report; and failed to adequately explain to him that the safety valve provision was inapplicable, thereby ruling out the 87 to 108 month sentence discussed in the plea agreement. However, the present record on direct appeal is insufficient from which to evaluate fact-specific claims of ineffective assistance of counsel such as these. For proper review of Ramirez-Benitez’s allegations of ineffective assistance, facts must be developed showing, inter alia, the advice, or lack thereof, rendered by the allegedly ineffective attorney to his client. We typically require that an ineffective assistance claim be presented first to the district court in a collateral proceeding. United States v. Campbell, 268 F.3d 1, 7 (1st Cir.2001) (citing United States v. Hunnewell, 891 F.2d 955, 956 (1st Cir.1989)). This requirement allows a defendant to build a meaningful record in the district court “cataloguing his complaints regarding his counsel’s allegedly faulty strategic choices and general performance.” Campbell, 268 F.3d at 7. Thus, we dismiss that aspect of the appeal without prejudice to Ramirez-Benitez’s right to pursue his ineffective assistance claim in an appropriate collateral proceeding. AFFIRMED. . Section 5C1.2 provides that a court shall impose a sentence in accordance with the applicable guidelines without regard to a statutory minimum if the court finds that the defendant meets the criteria in 18 U.S.C. § 3553(f)(l)-(5). Section 3553(f)(2) requires that the defendant \"did not use violence or credible threats of violence or possess a fire arm or other dangerous weapon ... in connection with the offense.” . In Mickens v. Taylor, - U.S. -, 122 S.Ct." }, { "docid": "22870768", "title": "", "text": "be considered only to prove “the defendant’s motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident in connection with” Faulls’s charges, but not as evidence of Faulls’s character or propensity to commit the offenses. J.A. 200, 402. At the end of the first day of trial, weather reports forecast a snowstorm that threatened a delay in the proceedings. The lawyers did not want Lori to testify over two days, so the court asked the jurors if they would be willing to .stay late to complete her testimony. Faulls’s counsel did not object, and though at least one juror did not want to stay late, the court chose to complete the testimony that evening. The court adjourned at 7:40 PM. The jury convicted Faulls of kidnapping, interstate domestic violence, and possessing a firearm in furtherance of a crime of violence. The jury also determined that Faulls committed aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(2), which served as the predicate crime of violence for the interstate domestic violence charge and also enhanced Faulls’s sentencing range. Thé district court further enhanced Faulls’s sentencing range after it determined that Faulls obstructed justice when he called his mother from jail and asked her to convince Lori not to testify. II. A. Wé‘first consider Faulls’s ' argument that he’ was denied effective assistance of counsel, an issue we review de novo. United States v. Hall, 551 F.3d 257, 266 (4th Cir.2009). Faulls contends that his counsel was ineffective during his cross-examination of the bartender, thereby opening the door to allow the government to call its domestic violence expert. Faulls also contends that his counsel was ineffective when he failed to object to the court’s decision to keep the jury late' to complete Lori’s testimony. We decline to reach Faulls’s claim. Unless an attorney’s ineffectiveness conclusively appears on the face of the record, such claims-are not addressed on direct appeal. United States v. Benton, 523 F.3d 424, 435 (4th Cir.2008). Because there is no conclusive evidence of ineffective assistance on the face of this record, we conclude that Faulls’s claim" }, { "docid": "6983340", "title": "", "text": "such, the application of that maximum for career offender level purposes does not require that we vacate Gilliam’s sentence. D. Ineffective Assistance Of Counsel Before concluding, there is one final issue that we must touch upon. In his written submissions to this Court, Gilliam claimed that his trial counsel had rendered ineffective assistance by (1) failing to identify Gilliam’s prior criminal history before negotiating the plea agreement, and (2) advising his client to accept the plea agreement on erroneous information. Certain ly, Gilliam can raise an ineffective assistance of counsel claim on direct appeal. However, a decision to do so means that our inquiry would be confined to the facts that appear in the record as it now stands. See Godwin, 202 F.3d at 973. As we have noted, that is “a limitation that almost invariably dooms these claims when they are raised on direct appeal.” Id. When augmentation of the record is required, 28 U.S.C. § 2255 is the proper avenue for raising ineffective-assistance contentions. See Hugi v. United States, 1164 F.3d 378, 381 (7th Cir.1999). Recognizing that his ineffective assistance claims would be ben-efitted by evidence not presently contained in the record, at oral argument, Gilliam requested to withdraw these claims, thereby preserving them for a habeas proceeding. Thus, we will not examine the merits of those claims. See United States v. Alcantar, 83 F.3d 185, 191 (7th Cir.1996). III. CONCLUSION For the foregoing reasons, we Affirm the conviction and sentence imposed by the district court. . Pursuant to the agreement, Gilliam remained free to argue for further departures. . In Apprendi, the Supreme Court held that \"[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted lo a juiy, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. The implication of Apprendi for defendants charged with drug offenses under 21 U.S.C. § 841(a) is that they may not be subjected to a statutorily enhanced sentence based on drug type and quantity, as provided in § 841(b), without those" }, { "docid": "22870769", "title": "", "text": "also enhanced Faulls’s sentencing range. Thé district court further enhanced Faulls’s sentencing range after it determined that Faulls obstructed justice when he called his mother from jail and asked her to convince Lori not to testify. II. A. Wé‘first consider Faulls’s ' argument that he’ was denied effective assistance of counsel, an issue we review de novo. United States v. Hall, 551 F.3d 257, 266 (4th Cir.2009). Faulls contends that his counsel was ineffective during his cross-examination of the bartender, thereby opening the door to allow the government to call its domestic violence expert. Faulls also contends that his counsel was ineffective when he failed to object to the court’s decision to keep the jury late' to complete Lori’s testimony. We decline to reach Faulls’s claim. Unless an attorney’s ineffectiveness conclusively appears on the face of the record, such claims-are not addressed on direct appeal. United States v. Benton, 523 F.3d 424, 435 (4th Cir.2008). Because there is no conclusive evidence of ineffective assistance on the face of this record, we conclude that Faulls’s claim should be raised, if at all, in a 28 U.S.C. § 2255 motion. See United States v. Baptiste, 596 F.3d 214, 216 n. 1 (4th Cir.2010). B. Next, we consider .whether the district court correctly admitted prior acts evidence under Rule 4Q4(b). We review evidentiary rulings for abuse of discretion, United States v. Queen, 132 F.3d 991, 995 (4th Cir.1997), and will not reverse a district court’s decision to admit prior acts evidence-unless it was “arbitraxy or irrational,” United States v. Rawle, 845 F.2d 1244, 1247 (4th Cir.1988) (citing United States v. Greenwood, 796 F.2d 49, 53 (4th Cir.1986)). Faulls asserts that the district court should not have admitted testimony regarding the Mineral and Williamsburg incidents because the evidence was neither relevant nor necessary to the charges. Alternatively, Faulls argues that the probative value of the evidence was substantially outweighed by its prejudicial effect because the evidence (if believed) demonstrated a pattern of domestic violence. Evidence of prior wrongs is not admissible “to prove a person’s character in order to show that on a particular" }, { "docid": "22195627", "title": "", "text": "wanted to “withdraw his plea prior to sentencing but confusion in translation and attorney communication prevented this from being raised.” The trial court certified the issues for appeal. Despite the probable cause issue certification, Delgado’s new appointed counsel for appeal filed a brief that did not raise any issues or ask for reversal on any ground, but simply invited the California Court of Appeal to conduct an independent review of the record. Delgado filed his own supplemental brief alleging ineffective assistance of trial counsel. The California Court of Appeal affirmed the conviction without opinion. Delgado’s pro per petition before the Supreme Court of California was also denied without opinion. Delgado then filed a petition for a writ of habeas corpus in the Supreme Court of California, alleging ineffective assistance of both trial and appellate counsel. His petition was denied in a one sentence order. After properly exhausting his state remedies, see Delgado v. Lewis, 168 F.3d 1148, 1151, Delgado then filed a petition for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254, alleging ineffective assistance of appellate counsel. The district court granted the petition. We affirmed the district court in Delgado I. II One of the bases for our holding in Delgado I that Delgado received ineffective assistance of appellate counsel was his counsel’s failure to comply with the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) by filing what is known in California as a Wende brief. See People v. Wende, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (1979). We had previously held that the Wende procedure’s failure to follow the requirements of Anders rendered the Wende procedure fundamentally flawed, and therefore resulted in ineffective assistance of appellate counsel per se. See Davis v. Kramer, 167 F.3d 494, 496-98 (9th Cir.1999). Thus, under circuit precedent applicable at the time, Delgado’s counsel ineffectively assisted Delgado as a matter of law. In Smith, the Supreme Court upheld California’s Wende procedure as constitutionally adequate. See 120 S.Ct. at 763. Thus, on remand we must examine Delgado’s" }, { "docid": "22797958", "title": "", "text": "$4,159.52 total-ling $8,582.46, J.A. 44r-45, (while actually those two amounts equal $8,646.21,) and that she in fact received a total of $8,611.69, Appellants’ Br. at 10. Benton does not make clear which of these three figures she claims to be the actual amount of loss. At Benton’s sentencing hearing, the district court determined that the figure in the Presentence Report was the most reliable and therefore assessed the loss at $23,834.82. Benton was sentenced to five years probation and to make restitution of $12,267.21. II. Hoyle claims ineffective assistance of counsel because Toth negotiated a plea agreement (1) that allowed her to appeal only on the basis of ineffective assistance of counsel and waived her right to appeal the sentence, (2) that stipulated an incorrect offense level based on an incorrect restitution figure, and (3) that failed to provide an agreed binding sentence under Fed.R.Crim.P. 11(e)(1)(C). She also bases her claim on Toth’s failure to object to the prosecutor’s refusal to request a downward departure on the basis of Hoyle’s assistance. To establish ineffective assistance of counsel, Hoyle must show (1) that Toth’s performance fell below an objective standard of reasonableness, and (2) that Hoyle was prejudiced by the deficiency because it created a reasonable probability that but for counsel’s errors, the result of the proceeding would have been different. Smith v. Smith, 931 F.2d 242, 244 (4th Cir.1991). A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. Hoyle has brought her claim of ineffective assistance on direct appeal. Such claims, however, are best left to collateral review. United States v. Tatum, 943 F.2d 370, 379 (4th Cir.1991). Normally, a claim of ineffective assistance should be raised in a motion pursuant to 28 U.S.C. § 2255 because “the record [on direct appeal] is usually inadequately developed. The record often Reveals only ambiguous symptoms of a more complex set of relationships which cannot be adequately addressed on direct appeal.” Tatum, 943 F.2d at 379. Where, however, “the ineffectiveness appears on the trial record itself, we will hear such a claim [on direct appeal] without prior" }, { "docid": "22674644", "title": "", "text": "to adjudicate the issue without any statement from counsel on the record. The issue is more properly raised in a § 2255 habeas motion for collateral relief, where the petitioner will be able to “establish an adequate record for resolution of the question,” and counsel will be “afforded adequate opportunity to explain the reasons surrounding the action or inaction to which [petitioner] takes exception.” United States v. Lurz, 666 F.2d 69, 78 (4th Cir.1981) (holding that ineffective assistance of counsel on direct appeal is premature and better taken under habeas proceedings), cert. denied, 459 U.S. 843, 103 S.Ct. 95, 74 L.Ed.2d 87 (1982). Without such a full record before us, “it is impossible to make a reasoned judgment as to whether or not representation was ineffectual.” Id. Accordingly, this court will not now undertake a review of DeFusco’s challenge to his conviction based on the alleged ineffective assistance of counsel. See also DeFusco, 930 F.2d at 415 (claim of ineffective assistance of counsel cannot be raised on direct appeal where claim not raised before district court). Of course, this court is not now determining whether there would be any merit to DeFusco’s contention in this regard. For the foregoing reasons, the judgment of the district court is affirmed. AFFIRMED. . 18 U.S.C. § 1956(a) (money laundering) provides for a 0 to 20 year sentence, and 18 U.S.C. §§ 152 and 371 (bankruptcy conspiracy) provides for 0 to 5 years. . We note that the 1989 Amendment to the Rule ensures that the trial court will inform the defendant of the use of the Guidelines which protects the defendant from surprise. Additionally, we note that in some cases, the sentencing range will be easily ascertainable at the time the plea is offered. The trial court certainly has full discretion to explain the likely sentencing range under the Guidelines to the defendant before accepting the plea. Fernandez, 877 F.2d at 1144." }, { "docid": "8423332", "title": "", "text": "who [wa]s very attuned to the whole notion of the extent of the distribution of cocaine on the Menominee Reservation and its environs.” (Tr. vol. 14 at 64.) Viewed in this way, the district judge’s decision not to grant Cloud a sentence reduction for minor participation was not clearly erroneous. E. Anders Briefs and Pro Se Motions We come at last to the Anders Briefs submitted by the attorneys for Beauprey, Brisk, and Brisk, Jr. Each brief argues that there are no non-frivolous grounds for appeal and seeks permission for the attorney to withdraw. Since all the Anders briefs are sufficient on their face, we consider only those issues raised in the briefs and the responses to the briefs. United States v. Wagner, 103 F.3d 551, 553 (7th Cir.1996). Having carefully reviewed all the materials submitted, we agree with the attorneys that there are no non-frivolous grounds for appeal as to Beauprey, Brisk, and Brisk, Jr. However, as is our practice, we decline to consider the ineffective assistance of counsel claims on direct appeal since determination of such claims requires evidence that is outside the trial record. United States v. Brooks, 125 F.3d 484, 495 (7th Cir.1997). All that remains are the pro se motions of Brisk and Brisk, Jr. Brisk requests that she be appointed new counsel to represent her on appeal. Since we have determined that an appeal would be frivolous, she is not entitled to new counsel. For the same reason, Brisk, Jr.’s request for a copy of the full record is also unwarranted. CONCLUSION For the foregoing reasons, we Affirm the district court’s judgment in all respects. We also Grant the motions of the attorneys for Beauprey, Brisk, and Brisk, Jr. to withdraw, and Deny Brisk’s motion for new appointed counsel and Brisk Jr.’s request for a copy of the full record. . The full text of the Enclave Act is as follows: Except as otherwise expressly provided by law, the general laws of the United States as to the punishment of offenses committed in any place within the sole and exclusive jurisdiction of the United" }, { "docid": "7682762", "title": "", "text": "suggest that the PSR, which stated that Alvarez was wearing bulletproof body armor, was inaccurate or materially untrue. The PSR comports with the evidence presented at trial, which suggested Alvarez was wearing a commercially-available vest stolen from a police vehicle; and there appears to be no error. Accordingly, Alvarez’s PSR bears the requisite indicia of reliability and the district court was entitled to rely on it. Because Alvarez failed to identify evidence or present argument suggesting that the PSR was materially untrue, we affirm. J. Whether Alvarez received ineffective assistance of counsel. The general rule in the Fifth Circuit is that Sixth Amendment ineffective assistance of counsel claims are not reviewed on direct appeal unless they were “adequately raised in the trial court.” United States v. Stevens, 487 F.3d 232, 245 (5th Cir.2007). In order to provide competent review of such claims, the appellant must develop the record at the trial court. Id.; United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir.1992). Only in those “rare cases” where the record is sufficiently developed will this Court review Sixth Amendment ineffective assistance of counsel claims on direct appeal. United States v. Palmer, 122 F.3d 215, 221 (5th Cir. 1997). Here, Alvarez claims a litany of shortcomings that allegedly amount to ineffective assistance of counsel. However, this direct appeal is the first time that Alvarez has claimed ineffective assistance of counsel. Having not raised this issue below, the record is insufficiently developed to enable review of Alvarez’s claim. Stevens, 487 F.3d at 245. Accordingly, we deny Alvarez’s ineffective assistance of counsel claim without prejudice to his right to pursue the claim in collateral review. IV. Conclusion For the foregoing reasons, the sentences of Alvarez and Cervantes are VACATED and REMANDED for resentencing. We AFFIRM Appellants’ convictions and sentences on all other grounds, and DENY WITHOUT PREJUDICE Alvarez’s ineffective assistance of counsel claim. . In his brief, Milan briefly mentions a challenge to the evidentiary sufficiency of his convictions in his summary of argument section. That specific contention does not appear anywhere else in his brief, however. Having failed to present substantive" }, { "docid": "22070871", "title": "", "text": "arose out of separate and distinct criminal episodes. The first burglary was completed before the second started, each burglary occurred at a different location, and each involved a different victim. See Letterlough, 63 F.3d at 336-37. Thus, the district court properly applied the armed career criminal enhancement to James’s sentence. IY. In his supplemental pro se brief, James argues that his trial counsel was ineffective for failing to raise several constitutional attacks against the armed career criminal statute., Ineffective assistance claims are not cognizable on direct appeal unless counsel’s ineffectiveness conclusively appears on the record. United States v. King, 119 F.3d 290 (4th Cir.1997). We reject this claim. V. For the foregoing reasons, the judgment of the district court is affirmed. AFFIRMED . James’s appellate counsel initially filed án‘ Anders brief. After the court ordered additional briefing, James's counsel filed a reply brief making a substantive argument regarding whether failure to stop for a blue light constitutes a violent felony. Because the court requested the additional briefing, this case is not governed by our rule that arguT ments not raised in the appellant’s opening brief are typically deemed abandoned on appeal. See, e.g., Edwards v. City of Goldsboro, 178 F.3d 231 (4th Cir.1999). . We have examined the entire record in this case in accordance with the requirements of Anders and find no meritorious issues for appeal. This court requires that counsel inform the client, in writing, of his right to petition the Supreme Court of the United States for further review. If the client requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy théreof was served on the client. . When the elements of an offense indicate that it can be committed in two alternative ways, one that requires a finding that physical force was used, attempted, or threatened and the other that does not, the court may look beyond the fact of conviction and the elements of the offense to the" }, { "docid": "23105628", "title": "", "text": "factual issues. See Gallo, 763 F.2d at 1524 (looking at the complexity of the case). The district court did not abuse its discretion. C. Kewin asserts that we must reverse his conviction because he was denied effective assistance of counsel. As a general rule, we will not review a claim of ineffective assistance that is raised, as here, on direct appeal. United States v. Daniel, 956 F.2d 540, 543 (6th Cir.1992) (citations omitted). “Ineffective assistance of counsel claims are best brought by a defendant in a post-conviction proceeding under 28 U.S.C. § 2255 so that the parties can develop an adequate record on the issue.” Id. (citation omitted). There is. a narrow exception to this general rule, however. We may consider an ineffective assistance claim on direct appeal when the record is adequate to assess the merits of the claim. United States v. Wunder, 919 F.2d 34, 37 (6th Cir.1990). Because the record here is not sufficiently developed, we will apply the general rule and refrain from passing on this alleged constitutional deficiency. D. The government sought to enhance Kewin King’s sentence pursuant to 21 U.S.C. § 841(b)(1)(A) based on Kewin’s prior conviction for felony drug trafficking in Ohio state court. The government was therefore required to comply with the notice provisions of 21 U.S.C. § 851. That section states in relevant part: No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial ... the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.... Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence. 21 U.S.C. § 851(a)(1). The requirements delineated in § 851 are mandatory, and a district court cannot enhance a defendant’s sentence based on a prior conviction unless the government satisfies them. United States v. Williams, 899 F.2d 1526, 1529 (6th Cir.1990) (citing United States v. Noland," }, { "docid": "22279473", "title": "", "text": "a subsequent petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255; (2) remand the claim to the district court for necessary factfinding; or (3) decide the claim on the record before us. United States v. Leone, 215 F.3d 253, 256 (2d Cir.2000). In light of our “baseline aversion to resolving ineffectiveness claims on direct review,” United States v. Salameh, 152 F.3d 88, 161 (2d Cir.1998), and the Supreme Court’s recent statement that “in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective-assistance,” Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 1694, 155 L.Ed.2d 714 (2003), we decline to review defendant’s claim of ineffective assistance of counsel on the record now before us. Defendant may pursue this claim in a § 2255 petition. See United States v. Khedr, 343 F.3d 96, 100 (2d Cir.2003). III. Conclusion For the reasons set forth above, we dismiss without prejudice defendant’s claim for ineffective assistance of counsel at sentencing. We have considered all of defendant’s other arguments and found each of them to be without merit. Accordingly, the judgment of the District Court is hereby affirmed. . In reviewing the District Court’s sentencing decision, we apply the version of the Guidelines in effect on the date that defendant was sentenced, 18 U.S.C. § 3553(a)(4)(A), unless doing so would violate the ex post facto clause of the United States Constitution, which occurs when the version of the Guidelines in effect at the time of sentencing is more “severe” than the version in effect when the offense was committed. United States v. Gonzalez, 281 F.3d 38, 45 (2d Cir.2002). Because the provisions of the Guidelines at issue here underwent no changes in severity between defendant's commission of her offenses, in 1997 to 1999, and her sentencing on October 15, 2002, we apply the version of those provisions in effect on that date. U.S.S.G. § 3A1.1(b)(1), “Hate Crime Motivation or Vulnerable Victim,” provided on the date of sentencing (and currently provides): \"If the defendant knew or should have known that a victim of the" }, { "docid": "23428930", "title": "", "text": "the record excuses exhaustion or procedural default. The district court properly rejected Beaty’s arguments that his procedural default was generally excused. X Beaty claims that trial counsel rendered ineffective assistance of counsel in failing to introduce mitigating evidence at sentencing. Beaty also claims that trial counsel did not adequately prepare for the sentencing phase and that counsel should have requested a mental evaluation of Beaty for sentencing purposes. Finally, Beaty claims that his appellate counsel rendered ineffective assistance in failing to raise trial counsel’s ineffective assistance at the sentencing. Beaty first raised these claims in a supplemental petition, to his third petition for post-conviction relief. The Superior Court denied the supplemental petition as untimely because Beaty filed it six days after a court-imposed deadline. See Ariz. R.Crim. P. 32.6(d) (1991). Beaty filed a petition for review, which the Arizona Supreme Court summarily denied. Beaty procedurally defaulted the claims raised in the supplemental petition. See, e.g., Reese, 282 F.3d at 1190-91. Beaty has not shown that Arizona’s time bar is not adequate or independent, or that its application would result in a fundamental miscarriage of justice. We therefore deny a COA on his sentencing claims. XI Beaty asserts several ineffective assistance claims that were raised in his fourth petition for post-conviction relief: Beaty contends he received ineffective assistance due to his trial counsel’s (1) alleged substance abuse and other personal problems, (2) failure to request certain jury instructions regarding O’Connor’s testimony, (3) failure to request a mental evaluation of Beaty for sentencing, (4) neglect in introducing mitigating evidence during sentencing, (5) failure to share the presentence report with him, (6) inappropriate comments to the media, and due to his appellate counsel’s (7) failure to investigate the case adequately or to raise meritorious claims on appeal. The Superior Court held that these seven claims were procedurally barred because they were not raised on direct review or in Beaty’s first petition for post-conviction relief. The sentencing claims were indeed raised in the supplemental petition to the third petition and, as discussed above, are procedurally defaulted. The other claims are unexhausted and defaulted because" }, { "docid": "21154807", "title": "", "text": "any enhancement under the Sentencing Guidelines for use of a firearm would result in a double counting of the gun crime. In the present case, however, the district court did not add the five-level enhancement for the use of a firearm when calculating Watkins’s offense level. Contrary to Watkins’s assertion, therefore, the district court did not misinterpret Note 4 when it calculated his sentence. C. Watkins’s ineffective-assistance-of-counsel claim An ineffective-assistance-of-counsel claim can be considered on direct appeal where the record is adequately developed to allow the court to assess the merits of the claim. United States v. Gardner, 417 F.3d 541, 545 (6th Cir.2005). Where the record is not adequately developed, the usual course is to defer consideration of the claim to postconviction proceedings under 28 U.S.C. § 2255. Id. The parties in the present case agree that the record is adequately developed for review on direct appeal. Based on the narrow focus of Watkins’s ineffective-assistance claim, we agree. To establish a claim of ineffective assistance of counsel, Watkins must show that his trial counsel’s performance was objectively deficient and that there is a reasonable probability that the deficiency prejudiced the outcome. United States v. Carter, 355 F.3d 920, 924 (6th Cir.2004). Watkins argues that the performance of his trial attorney was deficient because his counsel failed to argue that the district court misapplied Sentencing Guidelines § 2K2.4, Application Note 4. Because, as discussed above, the district court did not misapply that section of the Sentencing Guidelines, Watkins did not receive ineffective assistance of counsel when his attorney failed to make that argument. III. CONCLUSION For all of the reasons set forth above, we AFFIRM the judgment of the district court and DENY Watkins’s ineffective-assistance-of-counsel claim." }, { "docid": "21061611", "title": "", "text": "his counsel’s failure to object to the adequacy of the information. Such a claim — in reality a charge that counsel was ineffective — is usually better reserved for collateral review, where the facts and record can be appropriately developed. See United States v. Karterman, 60 F.3d 576, 579 (9th Cir.1995). On these facts, however, we can at least say this: Because we hold that the information satisfied section 851(a), Severino’s ineffective assistance claim, to the extent that it relies on counsel’s failure to object to the information, necessarily fails: There can be no error in failing to object to an adequate information. Other claims of ineffective assistance we leave for possible exploration in a future petition for collateral review. AFFIRMED. . By failing to appeal his sentence, Severino might have been deemed to have defaulted these claims. In an earlier appeal, however, we held that the government waived this argument by failing to raise it. See United States v. Severino, No. 99-35161, 1999 U.S.App. LEXIS 34564, at *2 n. 3, 1999 WL 1278048 (9th Cir. Dec. 30, 1999). . Section 851(a) provides in relevant part: No person who stands convicted of an offense under [21 U.S.C. §§ 841 et seq.] shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. . \"Clerical mistakes in the information may be amended at any time prior to the pronouncement of sentence.” 21 U.S.C. § 851(a)(1). . No doubt, the rule that service is complete upon mailing is based in large part on considerations of administrative convenience. A party must file a certificate of service at the time it files the served document, and it is fairly easy to certify that service has been completed by placing a copy thereof in the mail. It would be a far more difficult matter to certify" } ]

[ { "docid": "12980401", "title": "", "text": "n. 12, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989) (one reason deference was not due an agency interpretation was the passage of time between enactment of the statute and promulgation of the regulation in question); General Electric Co. v. Gilbert, 429 U.S. 125, 142, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976) (EEOC guideline did not “fare well” under Swift, standards in part because it was “not a contemporaneous interpretation”). An agency interpretation’s persuasiveness also is derived in part from the “thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements.” Skidmore, 323 U.S. at 140, 65 S.Ct. 161. To be persuasive, an agency interpretation cannot run contrary to Congress’s intent as reflected in a statute’s plain language and purpose. See Cleary, 167 F.3d at 808. 3. FLSA presumes remuneration is to be included in the regular pay rate We make a final observation. RHD argues Christensen stands for the proposition that unless a relevant FLSA provision expressly or implicitly prohibits the employer’s policy, an employee cannot demonstrate a statutory violation. That argument stretches Christensen in unconvincing fashion. The Court in Christensen was concerned with whether the FLSA prohibited municipal employers from compelling the use of compensatory time. See Christensen, 529 U.S. 576, 120 S.Ct. at 1658, 146 L.Ed.2d 621. The Court read the applicable provisions of the FLSA only to “guarantee that an employee will be able to make some use of compensatory time when he requests to use it.” Id. at 1662. The Court found the provision silent with respect to the employer’s requiring employees to use compensatory time. See id. (“[T]hat provision says nothing about restricting an employer’s efforts to require employees to use compensatory time.”). But here, the FLSA expressly provides the regular rate of pay “shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee” unless it falls under a specific exemption. See 29 U.S.C. § 207(e). Unlike in Christensen, there is a statutory presumption here that remuneration in any form is included in the regular rate calculation. The burden is" } ]

[ { "docid": "23258270", "title": "", "text": "all remuneration for employment paid to, or on behalf of, the employee.” § 207(e). The statute includes a list of exceptions to this rule, see § 207(e)(l)-(e)(8), but the list of exceptions is exhaustive, see § 778.207(a), the exceptions are to be interpreted narrowly against the employer, see Mitchell v. Kentucky Fin. Co., 359 U.S. 290, 295-96, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959), and the employer bears the burden of showing that an exception applies, see Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 209, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966). For the reasons that follow, we hold that the Town is obligated to include shift-differential pay, longevity pay, and career- incentive pay in the officers’ “regular rate” under the FLSA. 1. Shift-Differential Pay The case law is unequivocal that shift-differential pay must be included in an employee’s FLSA “regular rate.” The Supreme Court has specifically interpreted § 207(e) of the FLSA to include such payments: Where an employee receives a higher wage or rate because of undesirable hours or disagreeable work, such wage represents a shift differential or higher wages because of the character of the work done or the time at which he is required to labor rather than an overtime premium. Such payments enter into the determination of the regular rate of pay. Aaron, 334 U.S. at 468-69, 68 S.Ct. 1186 (emphasis added). The Secretary of Labor has also clearly adopted this view. See § 778.207(b) (“The Act requires the inclusion in the regular rate of such extra premiums as nightshift differentials.... ”). The Town argues that the shift differentials are properly excluded from the officers’ regular rate under 29 C.F.R. § 778.206, which is entitled “Premiums for work outside basic workday or workweek.” That regulation is flatly inapplicable to shift differential payments. Section § 778.206 addresses the calculation of ex-cludable contract overtime premiums under § 207(e)(7), and in the paragraph quoted above, the Supreme Court in Aaron held that shift-differential pay is not “an overtime premium.” The officers are entitled to have their shift-differentials included in their regular rate. 2. Longevity Pay" }, { "docid": "23258271", "title": "", "text": "work, such wage represents a shift differential or higher wages because of the character of the work done or the time at which he is required to labor rather than an overtime premium. Such payments enter into the determination of the regular rate of pay. Aaron, 334 U.S. at 468-69, 68 S.Ct. 1186 (emphasis added). The Secretary of Labor has also clearly adopted this view. See § 778.207(b) (“The Act requires the inclusion in the regular rate of such extra premiums as nightshift differentials.... ”). The Town argues that the shift differentials are properly excluded from the officers’ regular rate under 29 C.F.R. § 778.206, which is entitled “Premiums for work outside basic workday or workweek.” That regulation is flatly inapplicable to shift differential payments. Section § 778.206 addresses the calculation of ex-cludable contract overtime premiums under § 207(e)(7), and in the paragraph quoted above, the Supreme Court in Aaron held that shift-differential pay is not “an overtime premium.” The officers are entitled to have their shift-differentials included in their regular rate. 2. Longevity Pay The officers are also entitled to have their contractual longevity pay included in their regular rate. Such longevity payments do not appear to fall within the literal terms of any of the statutory exclusions in § 207(e); if that is so, they must be included. See 29 C.F.R. § 778.200(c) (“[A]ll remuneration for employment paid to employees which does not fall within one of these seven exclusionary clauses must be added into the total compensation received by the employee before his regular hourly rate of pay is determined.”). Indeed, the annual longevity payment is essentially a form of bonus. See § 778.208 (bonus payments, for purposes of the FLSA, are “payments made in addition to the regular earnings of an employee”). Bonuses that are explicitly promised to employees — as the longevity payments are in the CBA — must be included in the employees’ regular rate. § 207(e)(3); § 778.211 (any bonus paid pursuant to a contract must be included in the regular rate). In a closely analogous case, the Sixth Circuit held that police" }, { "docid": "5021249", "title": "", "text": "part not disputed and need not be recited except where necessary to resolve a dispute over a contested issue. 1. Wage Augments Under the terms of their collective bargaining agreements (CBAs), Natick police officers are, in certain circumstances, entitled to receive augments to their base salary. Patrol and superior officers receive additional compensation in the form of shift-differential pay, longevity pay, and career-incentive pay (as authorized by the Quinn Bill, Mass. Gen. Laws c. 41, § 108L). Patrol officers receive bonus pay for duties related to Compstat Technology. Patrol officers additionally are eligible to receive assignment differentials, in-service training stipends, and a community services differential. Plaintiffs claim that the Town has failed to include these wage augments in its calculation of the regular rate for purposes of overtime. Under the FLSA, an employer is required to pay employees for hours worked in excess of forty hours over a seven-day workweek at a rate “not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). An employee’s “regular rate” includes “all remuneration for employment paid to, or on behalf of, the employee.” 29 U.S.C. § 207(e). Section 207(e) lists eight categories of remuneration that need not be included in the calculation of the regular rate. See § 207(e)(l)-(e)(8). The First Circuit has made it clear that in addition to shift-differential pay, the Town is obligated to include longevity pay and the Quinn Bill incentives in its determination of an officer’s regular rate under the FLSA. O’Brien v. Agawam, 350 F.3d 279, 295 (1st Cir.2003). Plaintiffs argue with convincing force that the community services and Compstat Technology bonuses are analogous to the Quinn Bill’s education incentive payments. These payments, as well as assignment differentials (which provide extra compensation for officers who perform special work such as that involved in detective duties) are mandated by the CBAs and are indisputably “remuneration for employment paid to, or on behalf of, the employee.” And they do not appear to fit into any of the statutory exceptions. 29 U.S.C. § 207(e). The burden of proving that an exception" }, { "docid": "23258272", "title": "", "text": "The officers are also entitled to have their contractual longevity pay included in their regular rate. Such longevity payments do not appear to fall within the literal terms of any of the statutory exclusions in § 207(e); if that is so, they must be included. See 29 C.F.R. § 778.200(c) (“[A]ll remuneration for employment paid to employees which does not fall within one of these seven exclusionary clauses must be added into the total compensation received by the employee before his regular hourly rate of pay is determined.”). Indeed, the annual longevity payment is essentially a form of bonus. See § 778.208 (bonus payments, for purposes of the FLSA, are “payments made in addition to the regular earnings of an employee”). Bonuses that are explicitly promised to employees — as the longevity payments are in the CBA — must be included in the employees’ regular rate. § 207(e)(3); § 778.211 (any bonus paid pursuant to a contract must be included in the regular rate). In a closely analogous case, the Sixth Circuit held that police officers’ longevity payments must be included in their FLSA regular rate because they are by definition compensation for the length of service. See Featsent v. City of Youngstown, 70 F.3d 900, 905 (6th Cir.1995). The Fifth Circuit has rejected this argument on the ground that longevity pay may constitute a discretionary gift excludable under § 207(e)(2), but in so holding, the court distinguished longevity payments that are promised to employees in a collective bargaining agreement. See Moreau v. Klevenhagen, 956 F.2d 516, 521 (5th Cir.1992). Either way, the longevity payments here must be included in appellants’ regular rate. The Town argues that longevity pay is properly excluded for two reasons: (1) because it is only paid on an annual basis; and (2) because it does not constitute compensation for “hours worked.” The first argument is without merit: the regulations expressly contemplate retroactive calculation of overtime to accommodate compensation not given on a weekly basis, see, e.g., § 778.209 (methods of including bonuses in regular rate), and courts have had little difficulty handling such calculations when" }, { "docid": "238644", "title": "", "text": "liability and damages. After a trial, the district court found for plaintiffs on the question of liability, Lopez v. Art Craft Containers, Corp., 660 F.Supp. 404 (E.D.Pa.1987), the court determining that the payments did not fall within any exclusion contained in the FLSA, and that the employers therefore should have included the payments in overtime calculations. Thereafter, the Court determined the method by which damages would be calculated, and by stipulation the parties agreed that damages would be awarded based on this or whichever formula was upheld on appeal. The Court’s order became final on June 19, 1987. The employers appeal to this Court. We have jurisdiction pursuant to 28 U.S.C. § 1291. II. On appeal the employers argue that the district court erred when it determined that the payments made pursuant to the collective bargaining agreement under these facts were not subject to exclusion from the “regular rate” under one of the exemptions to the FLSA for purposes of calculating overtime. The district court’s findings of fact in that regard may not be disturbed unless clearly erroneous. Anderson v. City of Bessemer, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). However, our review of the district court’s interpretation and application of the statutory language is plenary. Creque v. Luis, 803 F.2d 92, 93 (3d Cir.1986). We turn to an examination of the reasons underlying the district court’s decision. III. A. The FLSA requires that employees working more than forty hours a week be compensated at a rate one and one-half times their regular rate for any hours exceeding forty. 29 U.S.C. § 207(a)(1). The scope of the term “regular rate” is defined to include “all remuneration for employment paid to, or on behalf of, [an] employee.” Id. § 207(e). However, there are several exceptions to the otherwise all-inclusive rule set forth in section 207(e). As the district court correctly recognized, these exceptions are narrowly construed, Mitchell v. Kentucky Finance Co., 359 U.S. 290, 295-96, 79 S.Ct. 756, 759-60, 3 L.Ed.2d 815 (1959); Guthrie v. Lady Jane Collieries, Inc., 722 F.2d 1141, 1143 (3d Cir.1983), and" }, { "docid": "15247542", "title": "", "text": "or her position (exclusive of any premiums, differentials, or cash awards or bonuses) except for an employee who is authorized annual premium pay under § 550.141 or § 550.151 of this chapter.... (c)An employee has been paid in compliance with the overtime pay provisions of this subpart only if the employee has received pay at a rate at least equal to the employee’s straight time rate of pay for all nonovertime hours of work in the workweek. 5 C.F.R. § 551.512. Section 551.511(a) explains that “[a]n employee’s ‘hourly regular rate’ is computed by dividing the total remuneration paid to an employee in the workweek by the total number of hours of work in the workweek for which such compensation was paid.” 5 C.F.R. § 551.511(a). The FLSA, 29 U.S.C. § 207(e), provides, in relevant part, that the regular rate of pay includes all remuneration paid to an employee except: (1) sums paid as gifts; payments in the nature of gifts made at Christmas time or on other special occasions, as a reward for service, the amounts of which are not measured by or dependent on hours worked, production, or efficiency; (3)Sums paid in recognition of services performed during a given period if ... both the fact that payment is to be made and the amount of payment are determined at the sole discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement, or promise causing the employee to expect such payments regularly.... In other words, in order for a payment to be excluded from the regular rate under 29 U.S.C. § 207(e)(3), four requirements must be met: (1) “[t]he employer must retain discretion as to whether the payment will be made;” (2) “[t]he employer must retain discretion as to the amount;” (3) “[t]he employer must retain discretion as to the payment of the bonus until near the end of the period which it covers; and” (4) “[t]he bonus must not be paid pursuant to any prior contract, agreement, or promise.” McLaughlin v. McGee Bros. Co., 681 F.Supp. 1117, 1133 (W.D.N.C.1988)," }, { "docid": "6279133", "title": "", "text": "make out a prima facie case of the number of hours worked as a matter of just and reasonable inference. Beliz v. W.H. McLeod & Sons Packing Co., 765 F.2d 1317, 1331 (5th Cir.1985). Defendant McGee has offered no evidence to contest the prima facie case made by Plaintiff as to the computation of the amount of unpaid minimum wages. IV. SINCE APRIL 7, 1983 DEFENDANTS HAVE VIOLATED THE OVERTIME PROVISIONS OF THE ACT BY FAILING TO INCLUDE MONTHLY PRODUCTION BONUSES IN EMPLOYEES’ REGULAR RATE Defendant McGee stipulated that it failed to include the monthly production bonuses in Employees’ Regular Rate. That is a violation of the overtime provision of the Act. The FLSA defines the “regular rate” to include “all remuneration for employment paid” to employees (29 U.S.C. § 207(e)), and is generally calculated by dividing the total compensation paid for each workweek by the number of hours actually worked that week. Overnight Motor Transportation Co., Inc. v. Missel, 316 U.S. 572, 580, 62 S.Ct. 1216, 1221, 86 L.Ed. 1682 (1942). A. Further, Defendant’s Failure to Plead Affirmatively That the Production Bonus is Excludable From the Regular Rate Constitutes a Waiver of Such Defense. In the absence of specific exclusions as set out in 29 U.S.C. § 207(e), all remuneration paid in the workweek must be included in the calculation of the regular rate. Overnight Motor Transportation Co., Inc., supra, at 580, 62 S.Ct. at 1221; 29 C.F.R. 778.108-109. And, bonuses are excludable only if the employer can affirmatively show that they fit one of the specific statutory exclusions and that each condition specified therein is met. Brock v. Two R Drilling Co., Inc., 789 F.2d 1177, 1179 (5th Cir.1986). As the Fourth Circuit recently stated: ... the general rule is that the application of an exemption under the Fair Labor Standards Act is a matter of affirmative defense on which the employer has the burden of proof ... Clark v. J.M. Benson Co., Inc., 789 F.2d 282, 286 (4th Cir.1986), citing cases. Defendant McGee failed to plead and prove affirmative defense that the monthly production bonus is excludable" }, { "docid": "15432119", "title": "", "text": "statutory exclusions and argued that it qualified for a partial overtime exemption under § 207(k), which allows public agencies employing firefighters or law enforcement officers to designate an alternative work period for purposes of determining overtime. The City denied that any violation of the FLSA was willful and that the Plaintiffs were entitled to liquidated damages. For the reasons that follow, we conclude that the City’s payment of unused benefits must be included in the regular rate of pay and thus in the calculation of the overtime rate for its police officers as well. And because the City took no affirmative steps to ensure that its initial designation of its benefits payments complied with the FLSA and failed to establish that it acted in good faith in excluding those payments from its regular rate of pay, the Plaintiffs are entitled to a three-year statute of limitations and liquidated damages for the City’s violations. We also conclude, however, that the City has demonstrated that it qualifies for the partial overtime exemption under § 207(k) of the Act, limiting its damages for the overtime violations alleged here. I. BACKGROUND A. Statutory background Under the FLSA, an employer must pay its employees premium overtime compensation of one and one-half times the regular rate of payment for any hours worked in excess of forty in a seven-day work week. Cleveland v. City of Los Angeles, 420 F.3d 981, 984-85 (9th Cir. 2005) (citing § 207(a)). The “regular rate” is defined as “all remuneration for employment paid to, or on behalf of, the employee,” subject to a number of exclusions set forth in the Act. § 207(e). The FLSA also provides “a limited exemption from the overtime limit to public employers of law enforcement personnel or firefighters.” Adair v. City of Kirkland, 185 F.3d 1055, 1059 (9th Cir. 1999) (citing § 207(k)). The partial overtime exemption in § 207(k) “increases the overtime limit slightly and it gives the employer greater flexibility to select the work period over which the overtime limit will be calculated.” Id. at 1060 (citation omitted). The FLSA provides a private cause" }, { "docid": "1350392", "title": "", "text": "use certain compensation already given to an employee as a credit against its overtime liability owed to that employee under the Act. Offsetting with already-disbursed compensation against incurred overtime is discussed in section 207(h), which states: (1) Except as provided in paragraph (2), sums excluded from the regular rate pursuant to subsection (e) shall not be creditable toward wages required under section 6 or overtime compensation required under this section. (2) Extra compensation paid as described in paragraphs (5), (6), and (7) of subsection (e) of this section shall be creditable toward overtime compensation payable pursuant to this section. 29 U.S.C. § 207(h)(l)~(2) (emphasis added). As noted above, subsection (e) sets forth the exclusions from the regular rate. Thus, the FLSA explicitly permits offsetting against overtime only with certain compensation that is statutorily excluded from the regular rate, that is, only three categories of compensation, which are “extra compensation provided by a premium rate.” Id. § 207(e)(5)-(7). Unlike the compensation addressed by the other exclusions, the three categories of excludable compensation that qualify for the offsetting provision at section 207(h)(2) are paid at a premium rate. Accordingly, we have previously characterized these three categories listed in section 207(e)(5)—(7) as “dollar-for-dollar credit[s] for premium pay” and limited permissible employer offsets to only those premium payments. See Wheeler v. Hampton Twp., 399 F.3d 238, 245 (3d Cir. 2005). The regulations also support limiting employers’ ability to offset overtime liability. Only extra compensation that falls within sections 207(e)(5), (6), and (7) may be creditable—“[n]o other types of remuneration for employment may be so credited.” See 29 C.F.R. § 778.201(c). IV. Nothing in the FLSA authorizes the type of offsetting DuPont advances here, where an employer seeks to credit compensation that it included in calculating an employee’s regular rate of pay against its overtime liability. Rather, the statute only provides for an offset of an employer’s overtime liability using other compensation excluded from the regular rate pursuant to sections 207(e)(6)—(7) and paid to an employee at a premium rate. In Wheeler, as here, the employer, Hampton Township, had voluntarily included non-work pay—which did not" }, { "docid": "15247588", "title": "", "text": "with an employee, the FAA does not retain discretion as to the payment of the bonus “until near the end of the period which it covers,” as required by 29 U.S.C. § 207(e)(3) and 5 C.F.R. § 551.511(b)(3). See McLaughlin, 681 F.Supp. at 1133; 29 U.S.C. § 207(e)(3). Accordingly, defendant cannot exclude the RTI from the regular rate pursuant to 29 U.S.C. § 207(e)(3) or 5 C.F.R. § 551.511(b)(3). Be cause the interpretation of the HRPM is a matter of law, and because payments required by agreement cannot be excluded from the regular rate, plaintiff is entitled to summary judgment that RTI must be included in the regular rate. See RCFC 56(c)(1) (“A motion for summary judgment should be granted if ... there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law.”). b. The Gift Exclusion The court now considers whether any of OSI, SCI or RTI payments are ex-cludable from the regular rate of pay as gifts under 29 U.S.C. § 207(e)(1). Section 207(e) provides, in relevant part, that the regular rate of pay includes all remuneration paid to an employee except: (1) sums paid as gifts; payments in the nature of gifts made at Christmas time or on other special occasions, as a reward for service, the amounts of which are not measured by or dependent on hours worked, production, or efficiency.... 29 U.S.C. § 207(e)(1). Similarly, 5 C.F.R. § 551.511(b), “which supplements and interprets the FLSA as it applies to federal employees,” see Brooks, 730 F.Supp. at 1133 n. 3, excludes bonuses and discretionary payments from “total remuneration.” In particular, 5 C.F.R. § 551.511(b) provides, in relevant part, that “total remuneration” includes all remuneration paid to an employee except: (1) Payments as rewards for service the amount of which is not measured by or dependent on hours of work, production, or efficiency (e.g., a cash award for a suggestion made by an employee and adopted by an agency).... 5 C.F.R. § 551.511(b)(1). Defendant contends that OSI is properly excluded from the regular rate as" }, { "docid": "12164035", "title": "", "text": "“irregularity” contemplated by the statute. B. Regular Rate of Pay. Section 7(f) also requires that the employee’s contract “specif[y] a regular rate of pay” and that the weekly guarantee be “based on the rates so specified.” 29 U.S.C. § 207(f). Section 7(e), in turn, states that the “regular rate” at which an employee is employed includes “all remuneration ... paid to ... the employee” except certain types of payments specifically excluded by that subsection, none of which is involved here. 29 U.S.C. § 207(e). Although nowhere expressly stated in the statute, we think it a matter of fair implication that the “regular rate of pay” required to be specified by section 7(f) must be the actual “regular rate” at which an employee is employed as determined under section 7(e). As noted previously, see text and note at note 1 supra, the BEST pay plan provided for the payment of bonuses to employees in addition to the hourly rates specified in their contracts. These bonuses, earned in over 70% of the workweeks examined, accrued whenever the employee’s services were charged directly to a customer, i.e., whenever the employee was working in the field. The total weekly bonus earned by an employee thus depended on the number of hours worked in the field, and further turned upon the type of work performed (e.g., driving a truck, working over water, etc.). Obviously, then, the amount of bonus varied from week to week, resulting in the payment, not only in effect but by the express terms of the contracts as well, of an ever-changing “regular rate” of pay. [¶] A Belo contract must be based upon a specified, non-varying “regular rate of pay.” See Marshall v. Hamburg Shirt Corp., supra, 577 F.2d at 447. Therefore, because BEST’S contracts did not “specif[y] a regular rate of pay,” they were invalid under section 7(f). II. The Denial of a Restitutionary Injunction. Framed to comport with the traditional role of an injunction, section 17 of the Act, 29 U.S.C. § 217, authorizes the Secretary to sue to enjoin an employer from withholding the payment of minimum wages" }, { "docid": "4458789", "title": "", "text": "is frivolous. B. Calculation of the Regular Rate First, plaintiffs contend that the district court erred in concluding that (1) Wacker “properly” compensated plaintiffs for their time, i.e., applied the proper overtime rate, and (2) Valhalla does not control. The FLSA requires an employer to compensate its employees for overtime “at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1) (emphasis added). Calculating the regular rate entails dividing the remuneration paid by the number of hours worked. See 29 U.S.C. § 207(e). • Wacker excluded the • compensation for the lunch period when calculating the regular rate. In this case, it did not err in doing so. Our holding in Valhalla that an employer must include in the regular rate wages voluntarily paid to employees during meal periods, even if such lunch time is not counted as “hours worked,” is not applicable here. Although the Valhalla court did not mention the controlling regulations, the regulation in effect when Valhalla was decided created a presumption in favor of including regularly received payments for hours not worked in -the regular rate under most circumstances. The 1979 regulation provided: Since, however, [payments for hours not counted as work] are part of the employee’s remuneration for his employment, section 7(e) of the Act requires that the compensation paid for such hours he included in his regular rate of pay, unless it appears from all the pertinent facts that the payments are of a type qualifying for exclusion therefrom under the provisions of section 7(e)(2). 29 C.F.R. § 778.320 (1979). In 1981, two years after we decided Valhalla, 29 C.F.R. § 778.320 was amended so as to provide that payments for meal periods not counted as hours worked should generally be excluded in computing the regular rate of pay when the parties have agreed to exclude such activities from hours worked. Id. Section 778.320(b) now provides: [T]he parties may reasonably agree that the time [spent in certain activities] will not be counted as hours worked. Activities of this type include eating meals between" }, { "docid": "1350388", "title": "", "text": "Court has explained, the regular rate “is not an arbitrary label chosen by the parties; it is an actual fact,” that “by its very nature must reflect all payments which the parties have agreed shall be received regularly during the workweek, exclusive of overtime payments.” Id. at 424, 65 S.Ct. 1242; 29 C.F.R. § 778.108 (citing Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 68 S.Ct. 1186, 92 L.Ed. 1502 (1948), and Walling, 325 U.S. at 419, 65 S.Ct. 1242). There are two components to the calculation: (1) the dividend, which includes total remuneration minus statutory exclusions; and (2) the divisor, which includes all hours worked. See 29 C.F.R. § 778.109. The FLSA characterizes the compensation that must be included in the dividend of the regular rate calculation broadly. It “include[s] all remuneration for employment paid to, or on behalf of, the employee” except the exclusions that are listed in section 207(e)(1)-(8). 29 U.S.C. § 207(e) (emphasis added). Further, “[o]nly the statutory exclusions are authorized— [A]ll remuneration for employment paid which does not fall within one of these seven exclusionary clauses must be added into the total compensation received by the employee before his regular hourly rate of pay is [to be] determined.” 29 C.F.R. § 778.200(c) (emphasis added). We have recognized that “there are several exceptions to the otherwise all-inclusive rule set forth in section 207(e),” but the statutory exclusions “are narrowly construed, and the employer bears the burden of establishing [that] an exemption [applies].” Minizza v. Stone Container Corp. Corrugated Container Div. E. Plant, 842 F.2d 1456, 1459 (3d Cir. 1988) (internal citations omitted). Thus, although a handful of types of compensation are statutorily excluded from the definition of “all remuneration,” all other compensation is included in the regular rate. The divisor in the regular rate calculation is comprised of all “hours worked.” 29 C.F.R. § 778.223. “Hours worked” includes all hours worked “under [an employee’s] contract (express or implied) or under any applicable statute.” 29 C.F.R. § 778.315. In general, “hours worked” includes time when an employee is required to be on duty, but it is" }, { "docid": "11542184", "title": "", "text": "inducing the employer to reduce the hours of work and to employ more men and of compensating the employees for the burden of a long workweek.” Walling, 325 U.S. at 423-24, 65 S.Ct. 1242. To determine the “regular rate” for purposes of calculating the overtime rate, the proper method is to use “the hourly rate actually paid the employee for the normal, non-overtime workweek for which he is employed.” Id. at 424, 65 S.Ct. 1242. The statute defines the “regular rate” as including “all remuneration for employment paid to, or on behalf of, the employee,” with some exceptions. 29 U.S.C. § 207(e). Ordinarily, “[t]he regular hourly rate of pay of an employee is determined by dividing his total remuneration for employment (except statutory exclusions) in any workweek by the total number of hours actually worked by him in that workweek for which such compensation was paid.” 29 C.F.R. § 778.109 (2005); Mumbower v. Callicott, 526 F.2d 1183, 1187 (8th Cir.1975). The FLSA requires employers to include shift differentials when determining the “regular rate” in order to calculate overtime pay. Bay Ridge Operating Co., 334 U.S. at 468-69, 68 S.Ct. 1186 (“Where an employee receives a higher wage or rate because of undesirable hours or disagreeable work, such wage represents a shift differential .... Such payments enter into the determination of the regular rate of pay.”); see also Featsent v. City of Youngstown, 70 F.3d 900, 904 (6th Cir.1995) (observing that section 7(e) of the FLSA does not exclude shift differentials from the regular rate); Reich v. Interstate Brands Corp., 57 F.3d 574, 578 (7th Cir.1995) (same); Thomas v. Howard Univ. Hosp., 39 F.3d 370, 372 (D.C.Cir.1994) (same); Cabunac v. Nat’l Terminals Corp., 139 F.2d 853, 854-55 (7th Cir.1944) (same); 29 C.F.R. § 778.207(b). WLF does not dispute that the FLSA mandates inclusion of the shift differential in the regular rate for calculation of overtime pay. Moreover, WLF' admits that it did not include the shift differential in its determination of the regular rate prior to September 21, 2003, resulting in underpayments to employees who worked overtime and sixth days. But" }, { "docid": "11542183", "title": "", "text": "LAW AND ANALYSIS A. Background: The Fair Labor Standards Act and the “Regular Rate” Congress enacted the FLSA in 1938 in order “to protect all covered workers from substandard wages and oppressive working hours.” Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981). Among other things, the FLSA established nationwide minimum wage and maximum hours standards. 29 U.S.C. § 207(a)(1) (establishing a maximum forty-hour workweek); see Moreau v. Klevenhagen, 508 U.S. 22, 25, 113 S.Ct. 1905, 123 L.Ed.2d 584 (1993). Under the FLSA, an employer must pay a non-exempt employee overtime pay for hours worked in excess of forty hours “at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1); see Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 460, 68 S.Ct. 1186, 92 L.Ed. 1502 (1948); Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 423, 65 S.Ct. 1242, 89 L.Ed. 1705 (1945). The overtime provisions in the FLSA “achieve[] its dual purpose of inducing the employer to reduce the hours of work and to employ more men and of compensating the employees for the burden of a long workweek.” Walling, 325 U.S. at 423-24, 65 S.Ct. 1242. To determine the “regular rate” for purposes of calculating the overtime rate, the proper method is to use “the hourly rate actually paid the employee for the normal, non-overtime workweek for which he is employed.” Id. at 424, 65 S.Ct. 1242. The statute defines the “regular rate” as including “all remuneration for employment paid to, or on behalf of, the employee,” with some exceptions. 29 U.S.C. § 207(e). Ordinarily, “[t]he regular hourly rate of pay of an employee is determined by dividing his total remuneration for employment (except statutory exclusions) in any workweek by the total number of hours actually worked by him in that workweek for which such compensation was paid.” 29 C.F.R. § 778.109 (2005); Mumbower v. Callicott, 526 F.2d 1183, 1187 (8th Cir.1975). The FLSA requires employers to include shift differentials when determining the “regular rate” in order" }, { "docid": "15247570", "title": "", "text": "¶¶ 29, 40. Plaintiffs contend that the FAA’s failure to include OSI, SCI and RTI in plaintiffs’ regular rates of pay violates 29 U.S.C. § 207(e). Pis.’ Mot. 6. Defendant contends that OSI, SCI and RTI are properly excluded from plaintiffs’ regular rates of pay pursuant to 29 U.S.C. § 207(e)(1) and § 207(e)(3). Def.’s Mot. 14. “The burden is on the employer to establish that the remuneration in question falls under an exemption.” Madison v. Res. for Human Dev., Inc., 233 F.3d 175, 187 (3d Cir.2000). “[I]t is employer upon whom the burden rests in demonstrating that certain payments it has made should not be included in determining its employees’ Tegular rate.’ ” Herman v. Anderson Floor Co., 11 F.Supp.2d 1038, 1042 (E.D.Wis.1998) (citing Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 209, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966)). a. The Discretionary Payment Exclusion Section 207(e) of title 29 of the United States Code provides, in relevant part, that the regular rate of pay includes all remuneration paid to an employee except: (3) Sums paid in recognition of services performed during a given period if ... both the fact that payment is to be made and the amount of the payment are determined at the sole discretion of the employer at or near the end of the period and not pursuant to any prior contract, agreement, or promise causing the employee to expect such payments regularly.... 29 U.S.C. § 207(e)(3). Accordingly, in order for a payment to be excluded from the regular rate under 29 U.S.C. § 207(e)(3), four requirements must be met: (1) “[t]he employer must retain discretion as to whether the payment will be made;” (2) “[t]he employer must retain discretion as to the amount;” (3) “[t]he employer must retain discretion as to the payment of the bonus until near the end of the period which it covers; and” (4) “[t]he bonus must not be paid pursuant to any prior contract, agreement, or promise.” McLaughlin, 681 F.Supp. at 1133. Similarly, 5 C.F.R. § 551.511(b), “which supplements and interprets FLSA as it applies to federal" }, { "docid": "23258269", "title": "", "text": "contractually guaranteed shift-differential pay, longevity pay, and career-incentive (Quinn Bill) pay in the officers’ “regular rate” for purposes of overtime calculation under the FLSA. The officers say it does; the Town denies this proposition. Calculation of the correct “regular rate” is the linchpin of the FLSA overtime requirement. The term is significant because under 29 U.S.C. § 207(a)(1), an employee who works overtime is entitled to be paid “at a rate not less than one and one-half times the regular rate at which he is employed” (emphasis added). The statute defines the term “regular rate” in § 207(e). Under that provision and the relevant ease law and interpretative regulations, the regular rate cannot be stipulated by the parties; instead, the rate must be discerned from what actually happens under the governing employment contract. See 29 C.F.R. § 778.108; Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 462-63, 68 S.Ct. 1186, 92 L.Ed. 1502 (1948). The general rule, per the plain text of the FLSA, is that the regular rate “shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee.” § 207(e). The statute includes a list of exceptions to this rule, see § 207(e)(l)-(e)(8), but the list of exceptions is exhaustive, see § 778.207(a), the exceptions are to be interpreted narrowly against the employer, see Mitchell v. Kentucky Fin. Co., 359 U.S. 290, 295-96, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959), and the employer bears the burden of showing that an exception applies, see Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 209, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966). For the reasons that follow, we hold that the Town is obligated to include shift-differential pay, longevity pay, and career- incentive pay in the officers’ “regular rate” under the FLSA. 1. Shift-Differential Pay The case law is unequivocal that shift-differential pay must be included in an employee’s FLSA “regular rate.” The Supreme Court has specifically interpreted § 207(e) of the FLSA to include such payments: Where an employee receives a higher wage or rate because of undesirable hours or disagreeable" }, { "docid": "5021250", "title": "", "text": "rate” includes “all remuneration for employment paid to, or on behalf of, the employee.” 29 U.S.C. § 207(e). Section 207(e) lists eight categories of remuneration that need not be included in the calculation of the regular rate. See § 207(e)(l)-(e)(8). The First Circuit has made it clear that in addition to shift-differential pay, the Town is obligated to include longevity pay and the Quinn Bill incentives in its determination of an officer’s regular rate under the FLSA. O’Brien v. Agawam, 350 F.3d 279, 295 (1st Cir.2003). Plaintiffs argue with convincing force that the community services and Compstat Technology bonuses are analogous to the Quinn Bill’s education incentive payments. These payments, as well as assignment differentials (which provide extra compensation for officers who perform special work such as that involved in detective duties) are mandated by the CBAs and are indisputably “remuneration for employment paid to, or on behalf of, the employee.” And they do not appear to fit into any of the statutory exceptions. 29 U.S.C. § 207(e). The burden of proving that an exception applies belongs to the employer, and the exceptions are construed narrowly against the employer. See Agawam, 350 F.3d at 294, citing Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 209, 86 S.Ct. 737, 15 L.Ed.2d 694 (1966), and Mitchell v. Kentucky Fin. Co., 359 U.S. 290, 295-296, 79 S.Ct. 756, 3 L.Ed.2d 815 (1959). Defendants’ argument that wage augments should be excluded from the calculation of the regular rate because the payments were not made on a weekly basis is contrary to the explicit wording of the statute. On the other hand, the Town’s argument that the in-service training differential need not be included in the calculation because the payment is made to reimburse an officer for his or her incidental out-of-pocket expenses has its own logic and merit. Consequently, the Town is required to include all wage augments in the calculation of the regular rate with the exception of the in-service training differential. 2. Town Details In addition to their regular police duties, plaintiffs also work “Town Details,” during which they are" }, { "docid": "1350387", "title": "", "text": "one-half times the employee’s regular rate of pay. The regular rate at which an employee is paid for “straight time”—or the first forty hours of work in a week—is integral to the issue of overtime payment under the FLSA. The regular rate is determined by way of a calculation. It is a “rate per hour” that “is determined by dividing [the] total remuneration for employment (except statutory exclusions) in any workweek by the total number of hours actually worked by him in that workweek for which such compensation was paid.” 29 C.F.R. § 778.109. Thus, the regular rate is a readily definable mathematical calculation that is explicitly controlled by the FLSA. Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424-25, 65 S.Ct. 1242, 89 L.Ed. 1705 (1945) (“Once the parties have decided upon the amount of wages and the mode of payment the determination of the regular rate becomes a matter of mathematical computation, the result of which is unaffected by any designation of a contrary ‘regular rate’ in the wage contracts.”). As the Supreme Court has explained, the regular rate “is not an arbitrary label chosen by the parties; it is an actual fact,” that “by its very nature must reflect all payments which the parties have agreed shall be received regularly during the workweek, exclusive of overtime payments.” Id. at 424, 65 S.Ct. 1242; 29 C.F.R. § 778.108 (citing Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 68 S.Ct. 1186, 92 L.Ed. 1502 (1948), and Walling, 325 U.S. at 419, 65 S.Ct. 1242). There are two components to the calculation: (1) the dividend, which includes total remuneration minus statutory exclusions; and (2) the divisor, which includes all hours worked. See 29 C.F.R. § 778.109. The FLSA characterizes the compensation that must be included in the dividend of the regular rate calculation broadly. It “include[s] all remuneration for employment paid to, or on behalf of, the employee” except the exclusions that are listed in section 207(e)(1)-(8). 29 U.S.C. § 207(e) (emphasis added). Further, “[o]nly the statutory exclusions are authorized— [A]ll remuneration for employment paid which does not fall" }, { "docid": "15247631", "title": "", "text": "Although the court’s decision in Brooks was in the context of Section 7(k) of the FLSA, 29 U.S.C. § 207(k), which provides an exception to when overtime must begin to be paid under the FLSA for law enforcement officers and firefighters, the court cited to 5 C.F.R. § 551.511, a provision generally applicable to most federal employees, when it stated that \"Gabriel’s hourly regular rate of pay is computed by dividing his ‘total remuneration’ for a pay period by the total number of hours worked in the period to earn the total remuneration.” See Brooks, 730 F.Supp. at 1135. . In addition to arguing that the language \"the total number of hours of work in the workweek for which such compensation was paid” means the total number of hours of work the payment was intended to compensate, Pis.’ Resp. 4-5; Pis.’ Brief 3-5, plaintiffs argue, without support, that for each type of payment an employee receives, a separate regular rate must be calculated, see Pis.’ Resp. 4-5. Nothing in the FLSA mandates that an employer calculate separate regular rates of pay for each type of payment an employee receives. See 29 U.S.C. §§ 201-219 (2006). In fact, in certain circumstances, the FLSA contemplates the use of a blended rate of pay to calculate the regular rate for employees who receive different rates of pay. See 29 U.S.C. § 207(g)(2). . The Conference Report to the public law that originally established the exemptions from the regular rate now found at 29 U.S.C. § 207(e) explains that each exclusion \"is intended to provide a separate, carefully defined exclusion from 'regular rate.’ Accordingly, a payment excluded under any one subdivision would not be deemed part of the 'regular rate’ by reason of the fact that such payment may not be excluded by the language of any other subdivision.” H.R.Rep. No. 81-1453, at 19 (1949) (Conf.Rep.). In other words, defendant does not have to prove it fits within both § 207(e)(1) and § 207(e)(3) to properly exclude OSI, SCI and RTI from the regular rate. . The Collective Bargaining agreement (CBA) provides that the" } ]

[ { "docid": "10347068", "title": "", "text": "from him. Rather, the movie confrontations are between Vader and the Princess, Vader and Kenobi and Vader and Luke Sky walker. The Court has no doubt, and Ideal did not deny, that Ideal sought to make use of the themes embodied in these three characters and in the movie itself. A theme is not protectible, however; it is only the idea which stands behind a protectible expression. In the Nichols case, Judge Hand concluded that there were certain similarities between the two plays at issue in that case but that these were similarities of theme and not of expression. Thus, even if it were known that the “infringer” had intentionally copied the theme, no copyright-infringement action would lie. If the defendant took so much from the plaintiff, it may well have been because her amazing success seemed to prove that this was a subject of enduring popularity. Even so, granting that the plaintiff’s play was wholly original, and assuming that novelty is not essential to a copyright, there is no monopoly in such a background. Though the plaintiff discovered the vein, she could not keep it to herself; so defined, the theme was too generalized an abstraction from what she wrote. It was only a part of her “ideas.” Nichols v. Universal Pictures Corp., supra, 45 F.2d at 122. The defendants have no more right to a monopoly in the theme of a black-robed, helmeted, evil figure in outer-space conflict with a humanoid and a smaller non-humanoid robot than Shakespeare would have had in the theme of a “riotous knight who kept wassail to the discomfort of the household” and who had conflicts with “a foppish steward who became amorous of his mistress.” Id. at 121. Moreover, the Court finds entirely credible the explanation given by Cooper concerning the changes that were made in preexisting toys and the reasons for developing these toys. Certainly Cooper was aware of “Star Wars” and intended to capitalize on the fad which it was creating. He was also concerned with possible infringement and instructed those developing the toys to avoid copying the “Star Wars”" } ]

[ { "docid": "3783849", "title": "", "text": "at 349-50, 111 S.Ct. at 1290). In light of this goal the Copyright Act protects the expression of ideas, but exempts the ideas themselves from protection. 17 U.S.C. § 102(b) (identity of ideas shown in two works does not give rise to infringement action); Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 547, 105 S.Ct. 2218, 2223-2224, 85 L.Ed.2d 588 (1985). Consequently, we have held that, in a video game, for example, the original manner of expressing ideas is found in the “shapes, sizes, colors, sequences, arrangements and sounds.” Atari, 672 F.2d at 617. In a life-size, realistic-looking concrete deer it is the features over which the manufacturer exercised discretion in its portrayal, aspects such as pose, posture, and facial expression. Concrete Mach. Co. v. Classic Lawn Ornaments, Inc., 843 F.2d 600, 607 (1st Cir.1988). When reproduction of a lifelike object is at issue, “a copyright holder must then prove substantial similarity to those few aspects of the work that are expression not required by the idea.” Id. One court has found that the design of a jewelled bee pin provided nothing new to the idea of the pin; therefore, since copying the pin necessarily would entail copying the idea as well as the expression, copying the expression was not barred. Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir.1971). However, “[a]s a work embodies more in the way of particularized expression, it moves away from the bee pin in Kalpakian, and receives broader copyright protection.” Atari, 672 F.2d at 617. At the other end of the spectrum, creative complex artistic expressions are more fully protected. Id.; see Concrete Mach. Co., 843 F.2d at 607 (describing “sliding scale of copyright protection”); Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1169 (9th Cir.1977) (finding that the expression of the television series differs markedly from the idea). 2. An owner of a copyright is protected against unauthorized copying. Mazer v. Stein, 347 U.S. 201, 218, 74 S.Ct. 460, 470, 98 L.Ed. 630 (1954). Writing for this court in Atari, Judge Wood" }, { "docid": "2526093", "title": "", "text": "607, 616 (7th Cir.1982) (quoting Alexander v. Haley, 460 F.Supp. 40, 45 (S.D.N.Y.1978). These ideas, like all ideas, are not protected by copyright. Id. at 615; see 17 U.S.C. § 102(b); Sid & Marty Krofft, 562 F.2d at 1163; 3 Nimmer, supra, § 13.03[A][1], at 13-21. They have been left explicitly unprotected in order to encourage their individual expression in original works of authorship. Furthermore, the mere indispensable expression of these ideas, based on the technical requirements of the videogame medium, may be protected only against virtually identical copying. Atari, 672 F.2d at 616; Sid & Marty Krofft, 562 F.2d at 1168. Indispensable expression is accorded only this slight protection because it is so close to the nonprotectible idea itself that “the expression provides nothing new or additional over the idea.” Id. See also Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir.1971) (“When the ‘idea’ and its ‘expression’ are thus inseparable, copying the ‘expression’ will not be barred, since protecting the ‘expression’ in such circumstances would confer a monopoly of the ‘idea’ upon the copyright owner.”); Atari, Inc. v. Amusement World, Inc., 547 F.Supp. 222, 229 (D.Md.1981) (indispensable expressive features of videogames “are part of plaintiff’s idea and are not protected by plaintiff’s copyright”). Viewing the evidence in the light most favorable to Frybarger, we agree with the district court that no reasonable jury could conclude that the indispensable expression of these similar ideas is virtually identical in Frybarger’s and Gebelli’s works. For the reasons above, there could be no copyright infringement as a matter of law. Therefore, the district court properly granted summary judgment. AFFIRMED. . “LADY BUG”, \"MOUSETRAP”, \"LOCK n' CHASE\" and \"DRELBS”. . “TRICKY TRAPPER” and \"MOUSER\" share the following similar features: 1) The display screen of each game is filled with straight rows of pivot points on a solid colored background. 2) Between some of the pivot points are solid lines, connecting two pivot points. 3) There is a single protagonist. 4) The single protagonist has legs and a face. 5) The single protagonist moves vertically and horizontally between rows of pivot" }, { "docid": "11569308", "title": "", "text": "as copyrightable subject matter. Eleven months prior to the final agency action in this case, the Fourth Circuit declared “untenable” lump categorization of video games as “idea” rather than “expression.” M. Kramer Mfg. Co., 783 F.2d at 436-37. The Fourth Circuit, in M. Kramer Mfg. Co., acknowledged and distinguished precedent holding that when the subject matter allows for only a very limited manner of expression, the idea and its expression remain a unit, so that there is no copyrightable material. Morrissey v. Procter & Gamble, 379 F.2d 675, 678-79 (1st Cir.1967) (copyright does not extend to rules for “sweepstakes” type sales promotion contest). But works in the computer’s domain generally have not fit that bill, the M. Kramer Mfg. Co. panel observed. Instead, the variety of ways to perform the same function sustains the classification of such works as “expression.” M. Kramer Mfg. Co., 783 F.2d at 436 (quoting Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1253 (3d Cir.), cert. denied, 464 U.S. 1033, 104 S.Ct. 690, 79 L.Ed.2d 158 (1984)). Compare Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir.1971) (rejecting infringement of registered copyright claim brought by manufacturer of jeweled pin in the shape of a bee; court held that idea of pin and its expression were inseparable, defendants were therefore free to copy the idea and, consequently, to produce a jeweled bee pin that looked like plaintiff’s) with Atari, Inc. v. Amusement World, Inc., 547 F.Supp. 222, 227 (D.Md.1981) (observing that “the idea of a video game involving asteroids is a much more general idea than the rather specific concept of a jewelled pin in the shape of a bee, and the former is capable of many forms of expression,” i.e., differently designed and combined symbols, movements, and sounds). But cf. Stern Elecs., 669 F.2d at 857 (leaving open the issue whether “a sequence of images ... might contain so little in the way of particularized form of expression as to be only an abstract idea portrayed in noncopyrightable form”). In this light, we do not follow the Register’s thought in" }, { "docid": "6423760", "title": "", "text": "the rather specific concept of a jewelled pin in the shape of a bee, and the former is capable of many forms of expression. Thus, when plaintiff copyrighted his particular expression of the game, he did not prevent others from using the idea of a game with asteroids. He prevented only the copying of the arbitrary design features that makes plaintiff’s expression of this idea unique. These design features consist of the symbols that appear on the display screen, the ways in which those symbols move around the screen, and the sounds emanating from the game cabinet. Defendants are entitled to use the idea of a video game involving asteroids, so long as they adopt a different expression of the idea — i.e., a version of such a game that uses symbols, movements, and sounds that are different from those used in plaintiff’s game. Defendants’ second challenge concerns plaintiff’s compliance with the applicable statutory procedures for registering a copyright. The Copyright Act requires the registrant to deposit two “complete copies” of the work, 17 U.S.C. § 408. Plaintiff submitted a videotape of one game sequence, and defendants contend that this is not a complete copy of the “Asteroids” game. However, the Copyright Office Regulation, 37 C.F.R. 202.20(d), allow the Register of Copyrights to permit the deposit of only one copy or “alternative identifying material.” Given the bulkiness and cost of the actual video game, a video tape of the audiovisual presentation in the game is a reasonable “alternative identifying material.” See Midway, supra, Findings 15, 20, and 25; Stern, supra, at 8. INFRINGEMENT BY DEFENDANTS Since direct evidence of copying is seldom available, plaintiff may prove copying by showing that defendants had access to plaintiff’s work and that the two works are substantially similar. Novelty Textile Mills, Inc. v. Joan Fabrics Corp., 558 F.2d 1090, 1092 (2d Cir. 1977). Access was shown indirectly by evidence that plaintiff’s work had been widely disseminated. See Detective Comics, Inc. v. Bruns Publication, Inc., 28 F.Supp. 399 (S.D.N.Y.1939), mod., 111 F.2d 432 (2d Cir. 1940). Therefore, the crucial issue is whether defendants’ game, “Meteors,”" }, { "docid": "19848631", "title": "", "text": "from a generalized form to ward a particularized expression. See id. at 615-17. The court wrote, Plaintiffs’ audiovisual work is primarily an unprotectable game, but ... to at least a limited extent the particular form in which it is expressed (shapes, sizes, colors, sequences, arrangements, and sounds) provides something “new or additional over the idea.” Atari, 672 F.2d at 617. Thus, the court accorded copyright protection to specific characters in the video game at issue in Atari: the ghost monster and gobbler, as well as the distinctive gobbling action and manner in which the gobbler disappeared upon being captured. See id. 617-18. However, the court held that standard game devices, which would be necessary to any game employing the same concept as the plaintiff’s game, such as mazes and tunnels, were unprotected. See id. Atari thus indicates that the fact that Bally may have set out to make a “Hyperball -type” game is, in itself, irrelevant. The concept of a game where a player shoots rolling balls at advancing “enemies” is not copyrightable. Moreover, Atari indicates that appropriation of a certain “type” of game is not in itself actionable. As one court put it when assessing a game where the player navigates a spaceship through a field of asteroids, when plaintiff copyrighted his particular expression of the game, he did not prevent others from using the idea of a game with asteroids. He prevented only the copying of arbitrary design features that make plaintiff’s expression of this idea unique. Atari, Inc. v. Amusement World, Inc., 547 F.Supp. 222, 227 (D.Md.1981). “[T]he copyright laws preclude appropriation of only those elements of the work that are protected by the copyright.” Atari, 672 F.2d at 614 (footnote omitted). Applying these principles, it becomes clear that not only is the fact that the two games are of the same general “type” irrelevant, but also a number of other similarities are irrelevant. Any game employing the same idea or concept as Hyperball would have to provide a cannon or some other shooting device at the lower end of the playing field, have targets arranged along" }, { "docid": "19848630", "title": "", "text": "Corp., 672 F.2d 607 (7th Cir.), cert. denied,- U.S. -, 103 S.Ct. 176, 74 L.Ed.2d 145 (1982). In Atari, the court began its analysis by observing that in that case the parties stipulated to the validity of the copyright and defendant’s access to the copyrighted work, so the case turned on the question whether copying could be inferred from the substantial similarity between the copyrighted and the allegedly infringing works. See 672 F.2d at 614. The same is true here. In order to determine what similarities were relevant, the court then turned to the question of what aspects of the copyrighted work, a video game, were protected from appropriation by the defendant. Id. The court restated a fundamental premise of copyright law, that a copyright only protects a particular expression of an idea, not the idea itself. See id. at 615. Accordingly, a game as such is not protected by the copyright laws. Id. What is protected is a particular form of a game, and the protection increases as the work in question moves away from a generalized form to ward a particularized expression. See id. at 615-17. The court wrote, Plaintiffs’ audiovisual work is primarily an unprotectable game, but ... to at least a limited extent the particular form in which it is expressed (shapes, sizes, colors, sequences, arrangements, and sounds) provides something “new or additional over the idea.” Atari, 672 F.2d at 617. Thus, the court accorded copyright protection to specific characters in the video game at issue in Atari: the ghost monster and gobbler, as well as the distinctive gobbling action and manner in which the gobbler disappeared upon being captured. See id. 617-18. However, the court held that standard game devices, which would be necessary to any game employing the same concept as the plaintiff’s game, such as mazes and tunnels, were unprotected. See id. Atari thus indicates that the fact that Bally may have set out to make a “Hyperball -type” game is, in itself, irrelevant. The concept of a game where a player shoots rolling balls at advancing “enemies” is not copyrightable. Moreover, Atari" }, { "docid": "22964294", "title": "", "text": "classic paintings. In this latter situation, the issue is not so much merger of idea and expression, but proof of copying; the alleged infringer easily can defend by showing he copied the work in the public domain and not the copyrighted reproduction. As an example in the case before us, appellant has a copyright in a design of concrete “life size deer.” The idea behind this particular expression can be briefly described as a “realistic-looking concrete deer.” Appellant cannot prohibit others from appropriating this idea; it can, however, prohibit any actual copying of its own version of a “realistic-looking concrete deer.” Yet, it has a problem of proof: because the statue is a detailed replica of a real deer, the deer, in essence, supplied most of the features which any subsequent artist can also take from the real deer. To prove copying, then, Concrete must show substantial similarity, between works, in those features over which it exercised discretion while portraying a “realistic-looking concrete deer.” These features include such aspects as pose, posture, and facial expression. Conversely, of course, “as a work embodies more in the way of particularized expression, it moves further away from [merger of idea and expression] and receives broader copyright protection.” Atari, 672 F.2d at 617. See also Sid & Marty Krofft Television, 562 F.2d at 1168. This broader protection is available in the typical case of an original work embodying only one of an infinite variety of ways of expressing an idea. At this end of the spectrum, “[duplication or near identity is not necessary to establish infringement.” Sid & Marty Krofft Television, 562 F.2d at 1167; see also Atari, 672 F.2d at 618. Many of Concrete’s works appear to be nearer to this end of what could be described as a sliding-scale of copyright protection. Under traditional analysis, whether there is substantial similarity between copyrightable expressions is determined by the “ordinary observer” test. See, e.g., Walker v. Time Life Films, Inc., 784 F.2d 44, 51 (2d Cir.), cert. denied, 476 U.S. 1159, 106 S.Ct. 2278, 90 L.Ed.2d 721 (1986); O’Neill, 630 F.2d at 687. “The" }, { "docid": "6423759", "title": "", "text": "of an idea. The Copyright Act adopted the longstanding common law doctrine that this is impermissible. 17 U.S.C. § 102(b). Apparently defendants are claiming that plaintiff is attempting to monopolize the use of the idea of a video game in which the player fights his way through asteroids and spaceships. Defendants cite the case of Herbert Rosenthall v. Kalpakian, 446 F.2d 738 (9th Cir. 1971), in which the court held that plaintiff could not copyright his jewelled pin in the shape of a bee because such a copyright would amount to a copyright of the idea of a jewelled bee pin. The court based this holding on the finding that the idea of a jewelled bee pin is capable of only one expression, and, therefore, when defendant used plaintiff’s idea of a jewelled bee pin, as defendant was entitled to do, it was inevitable that defendant’s pin would look like plaintiff’s pin. The critical difference in this case is that the idea of a video game involving asteroids is a much more general idea than the rather specific concept of a jewelled pin in the shape of a bee, and the former is capable of many forms of expression. Thus, when plaintiff copyrighted his particular expression of the game, he did not prevent others from using the idea of a game with asteroids. He prevented only the copying of the arbitrary design features that makes plaintiff’s expression of this idea unique. These design features consist of the symbols that appear on the display screen, the ways in which those symbols move around the screen, and the sounds emanating from the game cabinet. Defendants are entitled to use the idea of a video game involving asteroids, so long as they adopt a different expression of the idea — i.e., a version of such a game that uses symbols, movements, and sounds that are different from those used in plaintiff’s game. Defendants’ second challenge concerns plaintiff’s compliance with the applicable statutory procedures for registering a copyright. The Copyright Act requires the registrant to deposit two “complete copies” of the work, 17 U.S.C." }, { "docid": "22827808", "title": "", "text": "from the bee pin in Kalpakian, and receives broader copyright protection. At the opposite end of the spectrum lie the “strongest” works in which fairly complex or fanciful artistic expressions predominate over relatively simplistic themes and which are almost entirely products of the author’s creativity rather than concomitants of those themes. See, e.g., Krofft, 562 F.2d at 1169 (“The expression inherent in the H. R. Pufnstuff series differs markedly from its relatively simple idea”). As one court noted: “The complexity and artistry of the expression of an idea will separate it from even the most banal idea.... [T]he scope of copyright protection increases with the extent expression differs from the idea.” Id. at 1168. See also Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904 (3d Cir.), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 42 L.Ed.2d 92 (1975) (“between the extremes of conceded creativity and independent effort amounting to no more than the trivial, the test of appropriation necessarily varies”); Clarke, 472 F.Supp. at 482-83. Plaintiffs’ audiovisuaí work is primarily an unprotectible game, but unlike the bee pin, to at least a limited extent the particular form in which it is expressed (shapes, sizes, colors, sequences, arrangements, and sounds) provides something “new or additional over the idea.” See Goodson-Todman Enterprises, Ltd. v. Kellogg Co., 513 F.2d 913 (9th Cir. 1975). In applying the abstractions test, we find that plaintiffs’ game can be described accurately in fairly abstract terms, much in the same way as one would articulate the rules to such a game. Cf. Morrissey (no infringement of written game rules). PAC-MAN is a maze-chase game in which the player scores points by guiding a central figure through various passageways of a maze and at the same time avoiding collision with certain opponents or pursuit figures which move independently about the maze. Under certain conditions, the central figure may temporarily become empowered to chase and overtake the opponents, thereby scoring bonus points. The audio component and the concrete details of the visual presentation constitute the copyrightable expression of that game “idea.” Certain expressive matter in the PAC-MAN work, however," }, { "docid": "22827807", "title": "", "text": "49 (1980). Such stock literary devices are not protectible by copyright. Reyher, 533 F.2d at 91. Thus, “similarity of expression, whether literal or nonliteral, which necessarily results from the fact that the common idea is only capable of expression in more or less stereotyped form will preclude a finding of actionable similarity.” 3 Nimmer § 13.03[A][1], at 13-28. Courts have applied this concept to written game rules, see, e.g., Morrissey v. Procter & Gamble Co., 379 F.2d 675, 678 (1st Cir. 1967); Affiliated Hospital Products, Inc. v. Merdel Game Manufacturing Co., 513 F.2d 1183, 1188-89 (2d Cir. 1975); Durham, 630 F.2d at 914-15, and to the pictorial display of game boards, see Atari, Inc. v. Amusement World, Inc., slip op. at 11-15. As Kalpakian and other cases show, that a work is copyrighted says very little about the scope of its protection. But the Kalpakian case is nonetheless instructive in that it represents one end of a spectrum of protection. As a work embodies more in the way of particularized expression, it moves farther away from the bee pin in Kalpakian, and receives broader copyright protection. At the opposite end of the spectrum lie the “strongest” works in which fairly complex or fanciful artistic expressions predominate over relatively simplistic themes and which are almost entirely products of the author’s creativity rather than concomitants of those themes. See, e.g., Krofft, 562 F.2d at 1169 (“The expression inherent in the H. R. Pufnstuff series differs markedly from its relatively simple idea”). As one court noted: “The complexity and artistry of the expression of an idea will separate it from even the most banal idea.... [T]he scope of copyright protection increases with the extent expression differs from the idea.” Id. at 1168. See also Universal Athletic Sales Co. v. Salkeld, 511 F.2d 904 (3d Cir.), cert. denied, 423 U.S. 863, 96 S.Ct. 122, 42 L.Ed.2d 92 (1975) (“between the extremes of conceded creativity and independent effort amounting to no more than the trivial, the test of appropriation necessarily varies”); Clarke, 472 F.Supp. at 482-83. Plaintiffs’ audiovisuaí work is primarily an unprotectible game, but" }, { "docid": "11569309", "title": "", "text": "Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir.1971) (rejecting infringement of registered copyright claim brought by manufacturer of jeweled pin in the shape of a bee; court held that idea of pin and its expression were inseparable, defendants were therefore free to copy the idea and, consequently, to produce a jeweled bee pin that looked like plaintiff’s) with Atari, Inc. v. Amusement World, Inc., 547 F.Supp. 222, 227 (D.Md.1981) (observing that “the idea of a video game involving asteroids is a much more general idea than the rather specific concept of a jewelled pin in the shape of a bee, and the former is capable of many forms of expression,” i.e., differently designed and combined symbols, movements, and sounds). But cf. Stern Elecs., 669 F.2d at 857 (leaving open the issue whether “a sequence of images ... might contain so little in the way of particularized form of expression as to be only an abstract idea portrayed in noncopyrightable form”). In this light, we do not follow the Register’s thought in describing BREAKOUT’S arrangement as dictated by “functional requirements.” See supra p. 880. Atari demonstrated that a large variety of “arrangements” or designs might have been devised in lieu of those featured in BREAKOUT, i.e., in place of the objects represented (multi-colored brick wall, square ball, and shrinkable rectangular paddle), the sounds employed (their tones and duration), and the speed and artificial direction of the ball’s movement. See Addendum to Reply Brief for Appellant; Williams Elecs., Inc. v. Bally Mfg. Corp., 568 F.Supp. 1274, 1281 (N.D.Ill.1983) (observing that, unlike an arcade pinball game, the audiovisual aspects of a video game “are conceptually separable from its utilitarian aspects”); Patry, Electronic Audiovisual Games: Navigating the Maze of Copyright, 31 J. Copr. Soc’y 1, 46 (1983) (“[Ejven the simplest game may have variations of sizes, shapes, sequences, colors and sounds.”) Nor can it convincingly be maintained that audiovisual display and computer program are so linked that it is necessary or sufficient for Atari to register a claim in the computer program. Cf. supra p. 880. Registering a claim in" }, { "docid": "1455995", "title": "", "text": "expressive elements. While the court’s visual inspection of the exhibits reveals many similarities, it also reveals many differences which the court cannot discount as inconsequential. Unguided by any direction from Playmates (or FASA for that matter) as to what constitutes preexisting material and the scope of incorporation of that material, the court is in no position to rule as a matter of law on the issue of the scope of FASA’s protection or on the issue of substantial similarity. Playmates’ submissions raise more questions than they provide answers and on a motion for summary judgment the uncertainties raised by the record must be resolved in FASA’s favor. On the record before the court, we cannot conclude that Playmates is entitled to judgment as a matter of law based on the similarity of the BATTLETECH designs to the third-party designs. Nor can the court conclude that Playmates is entitled to judgment as a matter of law based on the argument that FASA is seeking protection of scenes afaire. Playmates’ suggestion that FASA seeks protection of expressions that are scenes afaire or common features in the futuristic robotic genre is cursory and undeveloped. Playmates makes no effort to identify the particular aspects of the BATTLETECH universe which it contends are scenes afaire or common to the genre. Because Playmates does not identify any particular examples of scenes a faire, its argument must be rejected. The court simply cannot rule in the abstract that certain undefined BATTLE-TECH features are scenes a faire. Ulti mately, this will be a question of material fact for the trier of fact. As a final assault on the protectibility of the BATTLETECH universe, Playmates contends that FASA is seeking protection of general themes and ideas such as “interstellar battles, genetic engineering, robot-like war machines, or ‘brain links’ to pilot vehicles.” Def.’s Mem. at 7; see also Def.’s Reply at 3-4 (“The only articulated similarity between the fictional portions of the works involves a most general, abstract outline— robotic vehicles engaged in interstellar battle involving genetically engineered beings and weapons operated by neural interface.”). In view of the record" }, { "docid": "1456056", "title": "", "text": "work that are protected by the copyright.” 672 F.2d at 614. Thus, in order to prevail on its copyright claims, FASA will ultimately have to establish that the EXOSQUAD E-Frame designs are substantially similar to the BATTLETECH Mech designs with respect to FASA’s original contributions. . Moreover, Playmates cannot seriously contend that the BATTLETECH designs themselves are scenes a faire. Our review of the exhibits submitted by both FASA and Playmates (includ ing approximately fifteen to twenty videotape film clips and innumerable pictorial images) leaves the court firmly convinced that the BATT-LETECH Mech designs are neither standard or indispensable elements of science fiction or, more narrowly, science fiction depictions of robots. Playmates can only argue that the BATT-LETECH designs are standard to the genre by defining \"the genre” in such a narrow fashion so as to render the argument tautological. However, it is clear from the exhibits — particularly the video clips submitted as Exhibit 1 to the Garcia declaration — that the concept of drivable robots or robotic exoskeletons used as war machines is plainly not original or unique to FASA. . It should be noted that this court’s minute order of July 28, 1994, granting defendant's motion for oral argument specifically directed the parties to address: “What is the extent of FASA's copyright: i.e., What parts of the copyrighted works constitute protectable expressions as opposed to unprotected ideas....” . See supra note 29. . In addition to concluding that FASA is seeking protection of general ideas and concepts, the court also notes that — at least with respect to the concepts of interstellar, battle dominated universes, drivable giant robots, and genetically manipulated warriors — FASA's claim to originality is open to considerable doubt. In his preface to the English translation of Japanese author Yoshiyuki Tomino's GUNDAM Mobile Suit (volume I) Awakenings (1990), translator Frederik L. Schodt observed that the Gundam Mobile Suit, which began in 1979 as an animated television series, \"had its roots in a long Japanese tradition of giant warrior robot animated TV shows.” Garcia Deck, Ex. 2, at vii. Schodt mentions that the Japanese robots" }, { "docid": "1455988", "title": "", "text": "Krofft Television Productions, Inc. v. McDonald’s Corp., 562 F.2d 1157, 1164 (9th Cir.1977)). Of course, the protection afforded by the copyright laws is not absolute. Copyright protects only the expression of ideas, not the ideas themselves. 17 U.S.C. § 102(b); Wildlife Express, 18 F.3d at 507; Atari, 672 F.2d at 614-15. In a related vein, copyright protection does not extend to scenes a j'aire — that is, the “ ‘incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.’ ” Atari, 672 F.2d at 616 (quoting Alexander v. Haley, 460 F.Supp. 40, 45 (S.D.N.Y.1978)). Also, although copyright protection is afforded to derivative works , that protection is not extended to the preexisting material employed in the work. 17 U.S.C. § 103(b) ; see also Saturday Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191, 1193 (7th Cir. 1987) (noting that the copyright protection accorded to derivative works is limited to that portion of the work adding incremental originality beyond the preexisting work). Playmates’ motion for summary judgment on FASA’s copyright claims rests principally on the following two propositions: (1) FASA’s claims are based on non-protectible elements; and (2) BATTLETECH and EX-OSQUAD are not substantially similar. The former proposition — which speaks to the scope of FASA’s copyright protection (i.e., the extent of the monopoly conferred by the copyright) — has two prongs. First, Playmates argues that FASA is seeking protection of general ideas or themes or scenes a faire. Second, Playmates argues that FASA’s copyright claims are based on the underlying preexisting works from which its copyrighted material is derived. The court notes that its task in ruling on the copyright infringement counts has been unnecessarily complicated — and ultimately undermined — by the fact that neither party has shed much light on the exact scope of the copyright protection FASA seeks to invoke. As the moving party on a motion for summary judgment, Playmates carries the initial burden “of informing the district court of the basis for its motion, and identifying those portions of [the record]" }, { "docid": "1455996", "title": "", "text": "that are scenes afaire or common features in the futuristic robotic genre is cursory and undeveloped. Playmates makes no effort to identify the particular aspects of the BATTLETECH universe which it contends are scenes afaire or common to the genre. Because Playmates does not identify any particular examples of scenes a faire, its argument must be rejected. The court simply cannot rule in the abstract that certain undefined BATTLE-TECH features are scenes a faire. Ulti mately, this will be a question of material fact for the trier of fact. As a final assault on the protectibility of the BATTLETECH universe, Playmates contends that FASA is seeking protection of general themes and ideas such as “interstellar battles, genetic engineering, robot-like war machines, or ‘brain links’ to pilot vehicles.” Def.’s Mem. at 7; see also Def.’s Reply at 3-4 (“The only articulated similarity between the fictional portions of the works involves a most general, abstract outline— robotic vehicles engaged in interstellar battle involving genetically engineered beings and weapons operated by neural interface.”). In view of the record before the court, we must agree. As a result of FASA’s inability or unwillingness to identify concrete details pertaining to the BATTLETECH universe, the court has little choice but to conclude that FASA is impermissibly seeking protection of the following general ideas and concepts: (1) a futuristic, interstellar, battle dominated universe; (2) robot-like battle machines ; (3) genetically manipulated warriors; and, (4) direct communication between machine and human brain. It is, perhaps, telling that FASA has made no genuine effort to direct the court’s attention to any particular BATTLETECH expressions of the “futuristic, interstellar, battle dominated BATTLETECH universe.” On the record before the court, the court must conclude that insofar as FASA’s copyright infringement claim is predicated on the assertion that “[t]he Exosquad lives in a futuristic, interstellar, battle dominated environment significantly resembling the futuristic, interstellar, battle dominated BATTLETECH universe,” that aspect of the claim must fail because it rests on familiar general themes which are unprotectible elements. Cf. Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir.1930) (L. Hand, J.). Similarly, beyond identifying" }, { "docid": "3783850", "title": "", "text": "that the design of a jewelled bee pin provided nothing new to the idea of the pin; therefore, since copying the pin necessarily would entail copying the idea as well as the expression, copying the expression was not barred. Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir.1971). However, “[a]s a work embodies more in the way of particularized expression, it moves away from the bee pin in Kalpakian, and receives broader copyright protection.” Atari, 672 F.2d at 617. At the other end of the spectrum, creative complex artistic expressions are more fully protected. Id.; see Concrete Mach. Co., 843 F.2d at 607 (describing “sliding scale of copyright protection”); Sid & Marty Krofft Television Prods., Inc. v. McDonald’s Corp., 562 F.2d 1157, 1169 (9th Cir.1977) (finding that the expression of the television series differs markedly from the idea). 2. An owner of a copyright is protected against unauthorized copying. Mazer v. Stein, 347 U.S. 201, 218, 74 S.Ct. 460, 470, 98 L.Ed. 630 (1954). Writing for this court in Atari, Judge Wood stated that copyright infringement may be inferred when it is shown that “the defendant had access to the copyrighted work, and the accused work is substantially similar to the copyrighted work.” Atari, 672 F.2d at 614. He suggested the test of substantial similarity involved two inquiries: copying of the plaintiffs work and improper appropriation of the work. Id.; see also Folio, 937 F.2d at 765 (citing cases). It has been long settled that a plaintiff cannot succeed in his proof if (1) the similarities between the works are not sufficient to prove copying, or (2) it is established that one work was arrived at independently without copying. See Alfred Bell & Co. v. Catalda Fine Arts, 191 F.2d 99, 103 (2d Cir.1951) (upholding copyrights in mezzotint reproductions of old classic paintings). In this circuit, as in most, the determination whether there is substantial similar ity is made by the “ordinary observer” test: “whether the accused work is so similar to the plaintiffs work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated" }, { "docid": "19206328", "title": "", "text": "and substantial similarity between the work of W.O.W. and that of Vector and Suma. Mattel, Inc. v. Azrak-Hamway International, Inc., 724 F.2d 357, 360 (2nd Cir.1983); Atari, 672 F.2d at 614. Both Vector and Suma had access to a Teddy Ruxpin bear before and during the production of their tapes. Michael Bishop produced the tapes for Vector and testified that he used a Teddy Ruxpin as a visual aide in encoding the Vector tapes. (Bishop, Tr. 137, 146). Kenneth Hamann, President of Suma, testified that he analyzed a Teddy Ruxpin tape to determine how it could be duplicated. (Hamann, Tr. 240). As to the issue of substantial similarity, a copyright extends only to the particular expression of an idea and not to the idea itself. 17 U.S.C. § 102(b); Sid & Marty Krofft Television v. McDonald’s Corp., 562 F.2d 1157, 1163 (9th Cir.1977); Atari, 672 F.2d at 615; Mattel, 724 F.2d at 360. Thus if the only similarity between W.O.W.’s work and the work produced by the Vector tapes were that of the idea of an animated toy bear, there would not be substantial similarity. Warner Brothers Inc. v. American Broadcasting Co., 654 F.2d 204 (2d Cir.1981). If any use of an idea necessarily involved certain forms of expression, the copyright would protect against only identical copying. Atari, 672 F.2d at 615; Atari, Inc. v. Amusement World, Inc., 547 F.Supp. 222 (D.Md.1981). An example of the idea-expression dichotomy is found in Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (9th Cir. 1971). In that case the plaintiff charged the defendants with copyright infringement of the expression in a pin of the idea of a jewel encrusted bee. The Court held there was not substantial similarity. The Court determined that the idea and its expression were indistinguishable and that there was no greater similarity between the pins than was inevitable from the expression of that idea. In applying the idea-expression dichotomy and the jeweled bee pin example to the instant matter the Court finds the reasoning in Atari, Inc. v. North American Philips Consumer Electronics Corp., to be persuasive. The" }, { "docid": "19848632", "title": "", "text": "indicates that appropriation of a certain “type” of game is not in itself actionable. As one court put it when assessing a game where the player navigates a spaceship through a field of asteroids, when plaintiff copyrighted his particular expression of the game, he did not prevent others from using the idea of a game with asteroids. He prevented only the copying of arbitrary design features that make plaintiff’s expression of this idea unique. Atari, Inc. v. Amusement World, Inc., 547 F.Supp. 222, 227 (D.Md.1981). “[T]he copyright laws preclude appropriation of only those elements of the work that are protected by the copyright.” Atari, 672 F.2d at 614 (footnote omitted). Applying these principles, it becomes clear that not only is the fact that the two games are of the same general “type” irrelevant, but also a number of other similarities are irrelevant. Any game employing the same idea or concept as Hyperball would have to provide a cannon or some other shooting device at the lower end of the playing field, have targets arranged along the side and back of the field, provide rows of some sort of advancing enemy, an area that the player must protect from the advancing enemy, and some system of indicator lights as a means for score to be kept. These elements are common to virtually all pinball and video games, and are necessary if the player is to have a meaningful objective (protecting an area from the advancing enemy and scoring points). A second set of limitations on the scope of Williams’ copyright is suggested by the nature of the copyrighted material. Williams claims that the material can be protected under the Copyright Act because it falls within the ambit of “pictorial, graphic and sculptural works” within the meaning of 17 U.S.C. § 102(a)(5) (1976). The Act goes on to define this term. “Pictorial, graphic, and sculptural works” include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, gloves, charts, technical drawings, diagrams and models. Such works shall include works of artistic craftsmanship insofar as their form" }, { "docid": "11664095", "title": "", "text": "(6th Cir.2004) (noting that where idea and expression are intertwined and where non-protectable ideas predominate, expression is not protected); see generally Nimmer § 13.03[B][3]. For computer programs, “if the patentable process is embodied inextricably in the line-by-line instructions of the computer program, [ ] then the process merges with the expression and precludes copyright protection.” Atari I, 975 F.2d at 839-40; see, e.g., PRG-Schultz Int’l, Inc. v. Kirix Corp., No. 03 C 1867, 2003 WL 22232771, at *4 (N.D.Ill. Sept.22, 2003) (determining that copyright infringement claim failed because expression merged with process in computer software that performed auditing tasks). For similar reasons, when external factors constrain the choice of expressive vehicle, the doctrine of “scenes á faire” — “scenes,” in other words, “that must be done” — precludes copyright protection. See Twentieth Century Fox Film, 361 F.3d at 319-20; see generally Nimmer § 13.03[B][4]. In the literary context, the doctrine means that certain phrases that are “standard, stock, ... or that necessarily follow from a common theme or setting” may not obtain copyright \" protection. Gates Rubber, 9 F.3d at 838. In the computer-software context, the doctrine means that the elements of a program dictated by practical realities — e.g., by hardware standards and mechanical specifications, software standards and compatibility requirements, computer manufacturer design standards, target industry practices, and standard computer programming practices — may not obtain protection. Id. (citing case examples); see Sega Enters., 977 F.2d at 1524 (“To the extent that a work is functional or factual, it may ,be copied.”); Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1473 (9th Cir.1992) (affirming district court’s finding that “[plaintiffs may not claim copyright protection of an ... expression that is, if not standard, then commonplace in the computer software industry”). As “an industry-wide goal,” programming “[efficiency” represents an external constraint that figures prominently in the copyrightability of computer programs. Altai, 982 F.2d at 708. Generally speaking, “lock-out” codes fall on the functional-idea rather than the original-expression side of the copyright line. Manufacturers of interoperable devices such as computers and software, game consoles and video games, printers and toner" }, { "docid": "19206329", "title": "", "text": "an animated toy bear, there would not be substantial similarity. Warner Brothers Inc. v. American Broadcasting Co., 654 F.2d 204 (2d Cir.1981). If any use of an idea necessarily involved certain forms of expression, the copyright would protect against only identical copying. Atari, 672 F.2d at 615; Atari, Inc. v. Amusement World, Inc., 547 F.Supp. 222 (D.Md.1981). An example of the idea-expression dichotomy is found in Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738 (9th Cir. 1971). In that case the plaintiff charged the defendants with copyright infringement of the expression in a pin of the idea of a jewel encrusted bee. The Court held there was not substantial similarity. The Court determined that the idea and its expression were indistinguishable and that there was no greater similarity between the pins than was inevitable from the expression of that idea. In applying the idea-expression dichotomy and the jeweled bee pin example to the instant matter the Court finds the reasoning in Atari, Inc. v. North American Philips Consumer Electronics Corp., to be persuasive. The Court in Atari, held that, “as a work embodies more in the way of particularized expression, it moves farther away from the bee pin in Kalpakian, and receives broader copyright protection.” Atari, 672 F.2d at 617. Teddy Ruxpin, unlike the bee pin, is a complex, artistic expression. Teddy Ruxpin’s creator testified that many years were spent in developing the bear. (Larsen, Tr. 62). He also described the detailed mechanics involved in animating Teddy Ruxpin and the intricacy of programming the command track to achieve life-like movement. (Larsen, Tr. 65, 78). The idea of an animated toy bear and its expression are not indistinguishable. There are a variety of ways to express the idea. The color, size, proportions, shape and clothing may vary. As to a speaking bear, the pitch, gender and speed of the voice may vary. As to an animated bear, the movements of eyes, nose, mouth and paws may vary. Vector did not design a toy bear for use with its tapes. The tapes must be played in Teddy Ruxpin bear to use" } ]

[ { "docid": "475730", "title": "", "text": "but notwithstanding the alarming symptoms and obnoxious conditions and her incapacity, there is no evidence that she complained to Dr. Marshall, to the captains, or that she requested defendant to transfer her to work ashore. In our opinion, from these circumstances also, there was an issue of contributory negligence for the jury to consider.” [293 F.Supp. 505-506], We agree with the district court that the jury could have found the plaintiff guilty of contributory negligence when she knew that she was being exposed to conditions which made her ill and weak and she did not complain of those conditions or ask to be transferred to other work. The plaintiff makes a second contention on this issue, namely, that there can be no issue of contributory negligence in the breach of defendant’s obligation to furnish maintenance and cure. It is sufficient answer to this to say that it clearly appears from the record that there was no issue of maintenance and cure presented to the jury under count one of the complaint or the cognate portion of the libel and the jury was properly instructed that the plaintiff was not entitled to maintenance and cure prior to May 26, 1965. The plaintiff also argues that where a seaman has knowledge of a defective or hazardous condition but nevertheless continues in his employment, he cannot be charged with contributory negligence since this amounts to assumption of risk. It is true that the statutory provisions barring assumption of risk as a defense in these cases have been held to apply and to eliminate the question of contributory negligence where a plaintiff had no alternative but to subject himself to dangerous conditions in his place of employment. But where, as here, the seaman has the possibility of securing relief by informing his superiors of the unsafe conditions but continues to work without doing so he may be found to be contributorily negligent. It will be remembered that the doctrine of comparative negligence, under which contributory negligence operates merely to reduce the damages, not to bar their recovery, is well established in the maritime law." } ]

[ { "docid": "14226719", "title": "", "text": "by a stevedore to make a thorough inspection of a ship for any “visual defects” before work by his longshoremen commences, will subject him to liability for any injuries occurring to the longshoremen because of these defects. Neither prior cases nor the practicalities of the situation point to such a result. Courts allowing indemnity against the stevedore when a longshoreman has been injured through a defect in a ship’s ladder or other similar equipment have done so, uniformly, only when the stevedore had actual notice of the hazardous situation and failed to take any steps to remedy it. In Santomarco v. United States, 2d Cir. 1960, 277 F.2d 255, the stevedore was held liable to the shipowner when a longshoreman was injured by slipping on a spot of oil on the ship’s deck. The oil had been seen and walked through by the longshoremen “who did not call the attention of any of the ship’s company to it, or ask to have it wiped up or sprinkled with sawdust,” and who “could have wiped up the oil themselves.” In Smith v. Jugosalvenska Linijska Plovidea, 4th Cir. 1960, 278 F.2d 176, Smith was thrown to the ’tween deck when the ladder which he was climbing down came loose and swung away from the hatch coaming. The liability of the stevedore, however, was predicated explicitly upon the fact that the stevedore’s safety man had noticed “that the ladder in question was not secured by bolts although it was a bolt type ladder,” and had done nothing more to investigate or remedy the obvious possibility of danger to anyone descending the ladder. “In short, he must not assume that a safe condition exists when he has notice that such may not be the case * * [Emphasis in original] 278 F.2d at 180. Both in Santomarco and Smith the stevedore had actual notice of a dangerous working condition. Neither stands for the proposition that the stevedore has a duty to make a thorough inspection of the ship. On the other hand, where there has been no notice of a damaged or faulty ladder," }, { "docid": "13302842", "title": "", "text": "forward rake area. Two days later the barge was placed on a marine railway and moved out of the water so that workmen could take a damaged plate from the forward rake and reseal the opening. During the evening shift on July 25, a foreman ordered Delome, one of the workers, to go onto the barge and enter the forward rake space through a hatchway. To facilitate ingress and egress, Platzer had placed a ladder twenty feet from the forward bulkhead on the port side. Employees such as Delome used this ladder to climb aboard. Following his instructions, Delome reached the port walkway, As he started forward, he was temporarily blinded by the glare of a 1000-watt onshore light located on a pole near the vessel’s bow. After taking a few steps in this dazzled condition, Delome fell ten feet into the open cargo hold. Delome collected under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. §§ 901-950, then initiated this action against Union Barge Line Co. pursuant to Rule 9(h) of the Federal Rules of Civil Procedure. Subsequently Union impleaded Platzer — the third-party complaint alleging that Plat-zer’s negligence and breach of its duty of workmanlike performance proximately caused Delome’s injury. According to the record, no party objected to the District Court’s assumption of admiralty jurisdiction. Sitting without a jury, the District Judge heard the evidence and concluded that, at the time of Delome’s accident, the UBL 550 was a vessel in navigation; that Union owed a warranty of seaworthiness to Delome because he “was performing the traditional duties of a seaman in making minor repairs as a shipfitter and that Union had breached this warranty by providing an unseaworthy walkway, filled with trip hazards which circumscribed a hatch coaming insufficient in height. The court held that these breaches were causally related to Delome’s fall. Furthermore, the court decided that Union was negligent in furnishing Delome with an unsafe place to work; it held that such negligence was a proximate cause of Delome’s injuries. The court also determined that Platzer was negligent in failing to install a guard" }, { "docid": "7806930", "title": "", "text": "a cross-appeal was subsequently filed by Smith to challenge the finding of contributory negligence with the consequent reduction of his award. We shall consider Smith’s cross-appeal first, and then turn to the indemnity question. I. Smith reported for work aboard -the GOLDEN EAGLE at eight o’clock on the morning of December 15, 1960. Once on the ship, he climbed down the forward ladder into the number 4 hold. After working there the entire day, he started to ascend from the hold, using the same ladder. The ladder in question was attached to a metal stanchion connecting the hatch coaming (at deck-level) with the floor of the lower ’tween deck, and consisted of parallel vertical rods and horizontal metal rungs. For the most part the rungs protruded from the stanchion, furnishing adequate standing room. However, at one point near the top of the ladder, there were two “recessed indentures,” each of which housed a horizontal metal rung in a compartment only two inches deep. Smith had reached this position on the ladder when he fell. The District Court’s description of the fall is as follows: “At some stage of his climb a pallet or skid was sent below for the purpose of putting brooms and other items thereon preparatory to closing the hatch. When libelant saw the pallet being lowered into the square of the hatch, he stopped on the ladder and waited for it to pass him safely. He then continued his climb and, according to his contention, his right foot was in the lower recessed indenture (fourth rung from the top), his left foot was in the upper recessed indenture (third rung from the top), his right hand was on the uppermost rung attached to ., the hatch coaming, and his left hand was on the very top of the coaming. At this point his left hand gave way, his left foot slipped from the upper recessed indenture, and he fell to the floor of the lower ’tween deck alongside the pallet which had been sent down to the longshoremen.” Because it was uncontested that the minimum safe “toe" }, { "docid": "17404633", "title": "", "text": "no reply nor was there any indication Dennis heard the remark. But Dennis stepped back and fell to the tank top. Wolff thought he hit the back of his head but the medical report indicates clearly that Dennis’ primary injury was a right frontal skull fracture. Wolff went over right away, but Dennis was unconscious. Wolff ran for help, and Dennis was removed from the hold and taken to the U. S. Public Health Service Hospital. He regained consciousness, but remained critically ill, sometimes conscious, sometimes not, for eight and one-half months, when he died. Plaintiff, decedent’s thirty-one year old daughter and sole survivor, sued on the basis that the vessel was unseaworthy, and on grounds of negligence. At the close of the plaintiff’s case, the court entered a judgment of dismissal of the unseaworthiness count on the basis that the plaintiff was not a member of the crew of the vessel (compare Filipek v. Moore-McCormack Lines, 2d Cir. 1958, 258 F.2d 734, rigging tester) nor was he doing seaman’s work. Partridge v. Pope and Talbot, Inc., N.D.Cal.1965, 257 F.Supp. 456; Royston v. Pacific Far East, N.D.Cal.1960, 190 F.Supp. 450. However, it is a settled principle of maritime law that a shipowner owes the duty of exercising reasonable care towards those aboard the vessel who are not members of the crew. Kermarec v. Compagnie Generale Transatlantique, 1958, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550. I. NEGLIGENCE The location and manner of construction of the pipe guard at the bottom of the No. 3 forward bulkhead ladder, extending some four feet above the deck of the lower hold with a slanted surface of approximately thirty degrees, presented an unusual and hazardous condition. The defendant knew of this condition of course, and it could reasonably foresee that this might cause or contribute to an accident if a person who was unaware of this construction descended the ladder and had to climb down the pipe guard. Indeed, a qualified naval architect testified that the ladder presented an unusual and unsafe condition, and that he had never gone down a ladder with" }, { "docid": "16660280", "title": "", "text": "to you to evaluate ... [whether] Minnesota Mining may not have known of any defect in the ladder. It would be negligent on the part of Minnesota Mining to fail to correct a defect which they had knowledge of or as to which they are chargeable with notice or knowledge.” It may be seen from the charge excerpts, that the trial judge did not instruct the jury in the precise wording of sections 388, 389, or 392. In the circumstances of this case, however, his choice of language does not constitute reversible error. It is against the background of the specific facts in the case that the instruction must be evaluated. The defect in question was the absence of safety feet on the ladder. Those devices are designed to prevent the foot of a ladder from slipping when in use. Plaintiff conceded that he did not notice any safety feet, and the jury properly found him guilty of negligence in using the ladder under these conditions without taking safety precautions. The jury also found that 3M had been aware of the defect because a foreman for Haverstick-Borthwick had seen the same ladder in the area months before. He had used it twice himself but observing the lack of safety feet, took extra care in climbing the ladder. He also testified that several 3M employees were aware of the presence of the ladder and that he had seen other men using it. In addition to plaintiff and the “fire watch” from Haverstick-Borthwick, there had been another 3M employee on the scene shortly before the accident who had them suspend work until the security guard arrived. The security guard for 3M was present when plaintiff ascended the ladder. The guard was just a few feet away and there is no evidence that he did not observe its defective condition. Thus, the jury could find that plaintiff climbed an unsafe ladder owned by 3M in the presence of its security guard who could have prevented its use. Against this factual background, the charge of the court did not constitute reversible error. In other" }, { "docid": "18775928", "title": "", "text": "front of the ladder in order to remount it and, consequently, would have fallen facing the far wall of the spy gallery (i.e., the wall to the left of the ladder) as he attempted to position himself on what he believed to be solid ground. We note that plaintiff testified that he stepped off the ladder to the side. Even if, as plaintiff alleges, he believed that solid ground existed at what he regarded to be the base of the ladder (i.e., the ladder ended at the spy gallery level) it is not unreasonable to infer from the testimony that plaintiff stepped forward toward the ladder with his body in an at least slightly sideways position — in order to facilitate mounting the ladder — such that, when he fell, he landed “facing the ladder with [his] left leg entangled in one of the rungs of the ladder.” Tr. 37 (cross examination of plaintiff). The fact that plaintiff stated that he “never got to the ladder,” does not contradict such a version of events. In short, the testimony of Dr. Jancszewski and the Government’s cross-examination of plaintiff is simply insufficient to refute plaintiffs contention that he was not climbing the ladder when he fell, but, rather, was attempting to remount it. Accordingly, we conclude that the Government breached its duty of reasonable care in maintaining the safety of the lookout gallery where Mr. Bat-tista fell, and find the Government liable under plaintiffs theory of negligence for damages — discussed infra at 724-729—suffered by plaintiff as a result of his fall. Damages 6. Plaintiffs have the burden of proving damages by a preponderance of credible evidence. See Fleming v. American Export Isbrandtsen Lines, Inc., 451 F.2d 1329, 1333 (2d Cir.1971) (Moore, J., concurring in part and dissenting in part); Candiano v. MooreMcCormack Lines, Inc., 251 F.Supp. 654, 660 (S.D.N.Y.1966), aff'd, 382 F.2d 961 (2d Cir.1967), cert. denied, 390 U.S. 1027, 88 S.Ct. 1416, 20 L.Ed.2d 284 (1968). 7. Plaintiffs’ damages must be susceptible of ascertainment in a manner other than mere speculation. Bigelow v. RKO Radio Pictures, Inc., 327 U.S. 251," }, { "docid": "540814", "title": "", "text": "M/V Sea Road, supra, 358 F.2d at 617; Smith v. United States, supra, in no case can it be a bar to recovery. Palermo v. Luckenbach S. S. Co., 355 U.S. 20, 78 S.Ct. 1, 2 L.Ed.2d 3 (1957). Thus, in Manning v. M/V Sea Road, 5 Cir., 1969, 417 F.2d 603, we reversed the decision of a lower, court which held that the choice of one route over another in effect made the longshoreman wholly responsible for injuries resulting from taking the unsafe route. 417 F.2d at 605-607. Apparently anticipating the lack of success of its first argument, Peruana argues next that, as a matter of law, Britt negligently contributed to his own injury. While contributory negligence is an elusive concept, Dean Prosser described it as “conduct which involves an undue risk of harm to the actor himself.” Prosser, Law of Torts § 65, at 418 (4th ed. 1971). We know from this record that Britt was the second man to descend the ladder in question; in fact, Pedro Gonzales, reached the bottom of the ladder without mishap. We cannot say that anyone descending a ladder presenting possible danger, but which has just been passed safely by a co worker, is, as a matter of law, unreasonably risking harm to himself. Thus, we decline to displace the trial court’s decision which found no contributory fault. III. VOX’S CONTENTIONS Vox, like Peruana, does not seek to have us set aside the lower court’s findings of fact. Rather, it contends that, even accepting those findings, as a matter of law no case for liability has been made out concerning the accident on the GLAFKI. Britt maintained that he had been standing on top of a hatch coaming, serving as a signalman directing the loading of grain into the GLAFKI. He claimed that while pulling on a rope attached to the grain spout, the rope broke and he fell to the deck; he also claimed to have fallen from the hatch coaming because there was no catwalk on which to stand while doing his job. Vox introduced photographs showing that the GLAFKI" }, { "docid": "14226720", "title": "", "text": "the oil themselves.” In Smith v. Jugosalvenska Linijska Plovidea, 4th Cir. 1960, 278 F.2d 176, Smith was thrown to the ’tween deck when the ladder which he was climbing down came loose and swung away from the hatch coaming. The liability of the stevedore, however, was predicated explicitly upon the fact that the stevedore’s safety man had noticed “that the ladder in question was not secured by bolts although it was a bolt type ladder,” and had done nothing more to investigate or remedy the obvious possibility of danger to anyone descending the ladder. “In short, he must not assume that a safe condition exists when he has notice that such may not be the case * * [Emphasis in original] 278 F.2d at 180. Both in Santomarco and Smith the stevedore had actual notice of a dangerous working condition. Neither stands for the proposition that the stevedore has a duty to make a thorough inspection of the ship. On the other hand, where there has been no notice of a damaged or faulty ladder, the courts have not implied a hypothetical duty to inspect, and the stevedore has not been required to indemnify the shipowner. In Calderola v. Cunard Steamship Co., 2d Cir. 1960, 279 F.2d 475, the injury occurred when an employee slipped because of grease on the ship’s ladder. The court held that there was no evidence that the stevedore or any of its employees knew of the grease on the ladder until the longshoreman put his hand in it as he was climbing up, and that since the grease could have been on the ladder only a short time before the accident, “it would be unreasonable to require the stevedore to have discovered the grease in the course of normal routine.” Similarly, in Ferrigno v. Ocean Transport, Ltd., S.D.N.Y. 1961, 201 F.Supp. 173, the court held that the stevedore was not liable for breach of an implied warranty of workmanlike service where a longshoreman, descending a ladder and realizing that a rung was missing, reached with one foot beyond the missing rung for the next step" }, { "docid": "774280", "title": "", "text": "lower tween deck to hold), with each section offset to the starboard or port of the center line. The vessel is classed at Lloyd’s Register’s highest classification, *100A1. Trial Record at 2-3. The parties have also stipulated that on the day of the accident, - September 22, 1980, McGann was working for Ceres Corp. as an extra man in Danny’s gang. Pre-Trial Order at 2. In his deposition, McGann states that the accident occurred at approximately 1:00 p.m. when he was returning to the No. 4 hold where his gang had been working in the morning. McGann Deposition at 42, 53. At the time of the accident, he had commenced descending the ladder and had both feet most likely on the fifth rung below the lower tween deck level. At the same time, his hands were holding onto the forward coaming of the access trunk between the two fixed mechanical hinges supporting the cover. In an attempt to find a handhold below the coaming level or the top rung of the ladder, he stuck his left hand underneath the tween deck. Id. at 57-60. While reaching with his left hand he let go with his right hand and fell backwards. Id. at 61. He does not remember how he lost his footing. Id. at 65. As a result of the fall, he claims to have sustained injuries to his low back and his right knee. Plaintiff admits that the ladder was structurally sound and that he is not aware of any transitory conditions which rendered it unsafe. McGann Deposition at 80-82; Pre-Trial Order at 1. Rather, he asserts that the hinged steel cover of the escape hatch trunk did not have a grab or handhold welded to its center. Plaintiff claims that he has seen such handholds on the majority of vessels on which he has worked as a longshoreman, and that the handhold can be held onto by someone descending or ascending the ladder when the hatch trunk cover is open. Id. at 80-85. He claims that the defendant’s liability stems from its failure to provide an adequate, safe" }, { "docid": "17404637", "title": "", "text": "did not strike the back of his head, as Wolff thought, but rather hit the forward part of his head when he fell. This could have occurred if he slipped off the pipe guard on the slanted surface and struck his head either on the ladder or the pipe guard as he fell to the deck below. Therefore it is likely that he fell without warning, struck his head and knocked himself unconscious. II. CONTRIBUTORY NEGLIGENCE Dennis did not descend the ladder with the utmost of caution. But he was expecting a normal ladder, not one with a hazard. There was no way he could anticipate this ladder’s unusual method of construction. He had no warning, nor any way to learn that he should be more careful than he had been in climbing down other ladders aboard the ship. He had been a surveyor for thirteen years, and he had been an engineer for some twenty-five years. He was sober, in good health, and Wolff’s testimony shows that he was descending the ladder in the usual and normal fashion. There is no basis for finding him contributorily negligent under the circumstances of this case. III. DAMAGES A. General Considerations When this suit was filed, it seemed clear that, if the plaintiff recovered, the measure of damages would be fixed by Article 2315 of the Louisiana Civil Code. Now that proposition requires further study. In The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358, the Supreme Court held that there was no right to recover for wrongful death under the general maritime law. The court there recognized that dependents of those who died in territorial waters could utilize state wrongful death statutes in federal court to recover. In The Tungus v. Skovgaard, 1959, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524, the Court considered the content of that right. Confirming the right to recover in admiralty under state statutes, it held that the federal courts were enforcing a right granted by a state “subject to the limitations which have been made a part of its existence.” [358 U.S." }, { "docid": "9683697", "title": "", "text": "intended to climb the ladder on the side of the car he answered, “yes.” In answer to the question — “You didn’t intend to climb the ladder on the end of the car?” he said: “I didn’t give it a thought. Like we do anything automatically after we have done it for years, just intended to ■ climb on.” Plaintiff was fifty-seven years old and had been in the employ of defendant twenty-four years. He of course knew of the existence of the ladder on the end of the car. Defendant places much emphasis upon plaintiff’s failure to use the end ladder in its argument that his negligence was the sole cause of the injury. The natural thing for plaintiff to do if the light standards had not been there was for him to climb the side ladder which was closest to the ramp rather than reach around the corner of the car and climb the ladder on the end. Assuming that this natural, impulsive act on his part was negligence, was it the sole cause of his injury? That question was submitted to the jury in terse, unqualified language. Under proper instructions the jury found that defendant had not exercised reasonable care to furnish plaintiff a reasonably safe place in which to work. The jury decided both questions against defendant. It is not the function of a Court to set aside a jury’s verdict merely because the jury could have drawn a different inference or conclusion from the facts, or because Judges feel that another conclusion would have been more reasonable. Tennant v. Peoria & P. U. R. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520. We may not set aside the verdict of the jury unless there is no reasonable basis in fact for its conclusion that defendant’s negligence in sending plaintiff into an unsafe place was a contributing cause to the accident. The diligence of counsel in citing many cases bearing on this question is of great assistance. An analysis of each would, however, serve no purpose other than to demonstrate the correctness of the" }, { "docid": "18775927", "title": "", "text": "he fell. Janezewski Decl. ¶ 25. We do not, however, adopt her conclusion— and that urged by the Government on the additional basis of plaintiffs testimony regarding the fall — that plaintiff was climbing the ladder when he fell. First, plaintiffs testimony regarding the actual fall was understandably somewhat vague, given the traumatic nature of the incident, and his estimation that he fell 10-15 feet is not one we find reasonable to hold him to as a scientifically accurate measurement. Second, we do not agree that the only conclusion to be drawn from the factual finding that plaintiff fell facing in the general direction of the ladder is that he was climbing the ladder at the time. Plaintiff testified that he stepped off the ladder to the side. We find no reason to credit the Government’s underlying assumption regarding his method of remounting the ladder, namely, that — if plaintiff was truly injured as a result of the continuation of the ladder shaft — the evidence would show that he attempted to stand directly in front of the ladder in order to remount it and, consequently, would have fallen facing the far wall of the spy gallery (i.e., the wall to the left of the ladder) as he attempted to position himself on what he believed to be solid ground. We note that plaintiff testified that he stepped off the ladder to the side. Even if, as plaintiff alleges, he believed that solid ground existed at what he regarded to be the base of the ladder (i.e., the ladder ended at the spy gallery level) it is not unreasonable to infer from the testimony that plaintiff stepped forward toward the ladder with his body in an at least slightly sideways position — in order to facilitate mounting the ladder — such that, when he fell, he landed “facing the ladder with [his] left leg entangled in one of the rungs of the ladder.” Tr. 37 (cross examination of plaintiff). The fact that plaintiff stated that he “never got to the ladder,” does not contradict such a version of events. In" }, { "docid": "9683696", "title": "", "text": "the cars started to move out he started to climb up on top of the last car so that he could better see what was on the main line. Other witnesses testified that it was customary for the switchman to climb up on top of cars as they were pulled away from the ramp. These box cars were thirteen or fourteen feet high. The top of the ramp was the height of the floor of a box car. He would therefore have had to climb some eight or nine feet from the level of the ramp to the top of the car. As he was in the act of swinging onto the top of the car he was knocked off. He did not see what struck him. He had worked in the plant about two months and knew the light standards were there and that there was insufficient clearance between them and the side of a- box car. There was a ladder on the end of the car. When asked on cross-examination whether he had intended to climb the ladder on the side of the car he answered, “yes.” In answer to the question — “You didn’t intend to climb the ladder on the end of the car?” he said: “I didn’t give it a thought. Like we do anything automatically after we have done it for years, just intended to ■ climb on.” Plaintiff was fifty-seven years old and had been in the employ of defendant twenty-four years. He of course knew of the existence of the ladder on the end of the car. Defendant places much emphasis upon plaintiff’s failure to use the end ladder in its argument that his negligence was the sole cause of the injury. The natural thing for plaintiff to do if the light standards had not been there was for him to climb the side ladder which was closest to the ramp rather than reach around the corner of the car and climb the ladder on the end. Assuming that this natural, impulsive act on his part was negligence, was it the sole" }, { "docid": "17555760", "title": "", "text": "are the two federal court cases cited above. Viewed from the standpoint of the railroad, whose wantonness or wilfulness is on trial, we agree with the trial court. We cannot say that there is any evidence from which a jury could infer such moral fault as would make the railroad’s contract of indemnity against this loss offend public policy. It had, without dispute, notified the deceased brakeman of the very danger that ultimately brought about his death. He had acknowledged notice of this danger in writing. He was not, therefore, shunted out onto this track in ignorance of the dangerous consequences of a failure to be alert. The railroad had furnished him a platform at the forward end of the car from which he could turn the brake; the operation was a normal one, and though, because of the apparent failure of the brake to work the car may have picked up speed of 10 miles per hour, there is no evidence that it left the main line at more than 3-4 miles per hour conceded by the appellant to be normal; there was no evidence from which a jury could find that the conductor had an opportunity to warn McGill after he knew the car would not stop, or that the conductor had any reason to believe that as McGill approached the building he would not take a safe position either on the left ladder or the front ladder, rather than attempt to climb down the right hand ladder just as he approached the building. If we are required to consider the conduct of McGill himself as imputing wanton negligence or wilfulness to the railroad, which we do not decide, there is nothing in McGill’s action in starting to climb down the ladder on the right side that shows more than either forgetfulness of the true conditions or carelessness arising out of long habit of assuming that wherever there is a side track there is ample clearance for a man on the side of the car. His negligent conduct cannot be blown up to constitute wanton or wilful disregard" }, { "docid": "4406976", "title": "", "text": "from which he is disqualified or that he is limited to jobs which do not require heavy lifting. ■ See Sherrod, 132 F.3d at 1120. By arguing that he is “disabled” under the ADA, Richards asserts that he is unable to perform either a class of jobs or broad range of jobs in various classes as a seaman. Nevertheless, Richards requested that Seariver attempt to place him in positions that required heavy lifting, such as chief mate, second mate, third mate, and maintenance seaman. Moreover, he stated in February 1998 that his grip strength was “fine,” that he could climb ladders effectively, climb vertical ladders, and climb Jacobs ladders “if I have to... if I must.” (Plaintiffs Objection, Instrument No. 27, Exh. B, Deposition of Christopher Richards, at 88). Richards has not produced evidence to show that he is disqualified from more than a single job, that of Able Seaman; instead, he claims he is able to perform functions of other jobs if required. Even if Richards was unable to climb ladders, “the inability to perform one aspect of a job while retaining the ability to perform the work in general does not amount to a substantial limitation of the activity of working.” Dutcher, 53 F.3d at 727. Consequently, Richards’ contradictory claims and lack of evidence to support his claims result in failure to show a substantial limitation on the major life activity of working. In the alternative, Richards argues that Seariver perceived him as having an impairment that substantially limited a major life activity, whether he actually had such an impairment or not. The facts provided by both parties show that Seariver did not return Richards to his position as an Able Seaman; that after his initial elbow injury in 1992, Richards was placed on light duty, and took six months of leave; and was then terminated in 1996. Both parties stipulated in the Jones Act suit that Richards was permanently disabled in his right arm with a lifting restriction. (Plaintiffs Objection, Instrument No. 27, Exh. A, Findings of Fact and Conclusions of Law, at 17 ¶ 4). The" }, { "docid": "17396468", "title": "", "text": "the ladder was “pitch dark ... [t]here [was] no light at all.” He apparently sought a hand hold but “there was nothing to hold onto,” and he fell to the deck. At trial, several witnesses testified that the ladder was unsafe because there were no handholds and the ladder terminated two or three feet below the top of the hatch. The defendant introduced evidence that the ladder was identical in design to at least ten other coaming ladders on the ship, and that these particular ladders were only designed for observation into the hold; they were not designed to provide access to the hatch tops. Immediately after the fall, the men remaining on the hatch did not use the coam-ing ladder to climb down to the deck below. At least one of the men used the crane itself to reach the deck to assist Bjaranson. Thereafter, during the remainder of the cargo operation, the workmen visually sig-nalled to the crane operator, or called to him to move the crane whenever they desired a clear passage. It was established at the trial and acknowledged at oral argument that the crane was operated by longshoremen. Bjaranson sued Botelho, the bare boat charterer, for negligence under 33 U.S.C. § 905(b). Bjaranson claimed that Botelho was negligent in failing to provide a coam-ing ladder with a handhold or handrails, and in failing to provide a safe means of access to the No. 1 hatch. The jury determined that each party was negligent, and concluded that Bjaranson’s comparative negligence was forty-five percent. DISCUSSION First, Bjaranson challenges Botelho’s right to appeal the denial of the motion for judgment non obstante verdicto. Specifically, Bjaranson asserts that Botelho failed to move for a directed verdict at the close of all the evidence, a prerequisite for appealing a denial of a motion for judgment n.o.v. See Freimanis v. Sea-Land Service, Inc., 654 F.2d 1155, 1161 (5th Cir.1981). At the close of the plaintiffs evidence, Botelho made a motion for directed verdict, but the district court declined to rule on the motion at that time. Later, at the close of" }, { "docid": "7806935", "title": "", "text": "the present circumstances have no causal connection with the fall. The District Court appears to have acknowledged this by attributing some small fault to Smith because he “in all probability started to climb the ladder after the pallet was in the process of being lowered into the hold.” This conclusion was reached in spite of the court’s finding that libelant “stopped on the ladder and waited for it [the pallet] to pass him safely.” But whether the pallet was in motion when Smith started to climb or when he was near the top of the ladder is immaterial. There is nothing to show that his fall was in any way caused by the moving object. Further, the fact that “the libelant knew of the condition of the recessed indentures” does not justify a finding of contributory negligence against him, for such a finding here is tantamount to holding that Smith assumed the risk of the defective ladder. Palermo v. Luckenbach S.S. Co., 355 U.S. 20, 78 S.Ct. 1, 2 L.Ed.2d 3 (1957); Socony Vacuum Oil Co. v. Smith, 305 U.S. 424, 432, 59 S.Ct. 262, 83 L.Ed. 265 (1939). He may-not be charged “with assumption of the risk under another name.” Holley v. The Manfred Stansfield, 269 F.2d 317, 322 (4th Cir. 1959); see Bryant v. Partenreederei-Ernest Russ, 330 F.2d 185, 4th Cir., 1964. Clearly, to say that Smith was at fault for using the ladder when he knew of its deficiency does not differ in substance from invoking the doctrine of assumption of risk against him. Had an alternative, safe route been available to Smith, his deliberate choice of a course known to be unsafe could possibly have indicated contributory fault, but mere knowledge of the unseaworthy condition and use of the ladder in the absence of a showing that there was an alternative is not contributory negligence. The remaining- reason that the District Court gave for finding contributory negligence was Smith’s “failure to exercise due care for his own safety in properly grabbing the rung or the top of the coaming” with his left hand. Smith himself was" }, { "docid": "540815", "title": "", "text": "the ladder without mishap. We cannot say that anyone descending a ladder presenting possible danger, but which has just been passed safely by a co worker, is, as a matter of law, unreasonably risking harm to himself. Thus, we decline to displace the trial court’s decision which found no contributory fault. III. VOX’S CONTENTIONS Vox, like Peruana, does not seek to have us set aside the lower court’s findings of fact. Rather, it contends that, even accepting those findings, as a matter of law no case for liability has been made out concerning the accident on the GLAFKI. Britt maintained that he had been standing on top of a hatch coaming, serving as a signalman directing the loading of grain into the GLAFKI. He claimed that while pulling on a rope attached to the grain spout, the rope broke and he fell to the deck; he also claimed to have fallen from the hatch coaming because there was no catwalk on which to stand while doing his job. Vox introduced photographs showing that the GLAFKI did have catwalks, and claimed that it was unlikely that Britt actually fell from a hatch coaming. Vox also introduced the testimony of one Wessendorf, who had been loading the grain with Britt. Wessendorf’s testimony in large part contradicted Britt’s story. Wessendorf stated that Britt had been on a catwalk, not a coaming, and that they had not been using ropes or tag lines in the manner described by Britt. Vox maintains that this evidence exonerates it as a matter of law from any liability. There are important shortcomings in Vox’s argument. While the court noted that Britt’s credibility was dubious, it also commented that Wessendorf was not altogether believable. Wessendorf maintained he never saw Britt take any fall, but we know that Britt did in fact have an accident aboard the GLAFKI, one which resulted in serious injury to his hand and thumb and some injury to his back. Wessendorf also admitted that the work was being done in rainy, misty weather, and that he did find Britt on his back after Britt fell" }, { "docid": "17396467", "title": "", "text": "passageway traveled by the men was blocked at the bow end of the No. 2 hatch by the leg of a Munck-loader crane. This crane straddled the hatch, and it was equipped with a boom. In order to straddle the hatches, the forward and aft cranes were mounted on high metal legs which ran on tracks the full length of the vessel’s deck. The tracks lay in the passageway between the rail and the hatch coamings. Rather than squeezing past the crane leg, the plaintiff and the other men climbed the outer side of the crane leg in order to reach the top of the No. 2 hatch cover and proceed forward. There was evidence that the men were accompanied on the hatch top by their supervisor, a stevedore walking boss/foreman. Once atop the hatch cover, the men searched for a way down. In order to get off the hatch, which was unlighted, Bjaranson attempted to descend a “coaming ladder” on the bow side of the No. 2 hatch. He testified that the area about the ladder was “pitch dark ... [t]here [was] no light at all.” He apparently sought a hand hold but “there was nothing to hold onto,” and he fell to the deck. At trial, several witnesses testified that the ladder was unsafe because there were no handholds and the ladder terminated two or three feet below the top of the hatch. The defendant introduced evidence that the ladder was identical in design to at least ten other coaming ladders on the ship, and that these particular ladders were only designed for observation into the hold; they were not designed to provide access to the hatch tops. Immediately after the fall, the men remaining on the hatch did not use the coam-ing ladder to climb down to the deck below. At least one of the men used the crane itself to reach the deck to assist Bjaranson. Thereafter, during the remainder of the cargo operation, the workmen visually sig-nalled to the crane operator, or called to him to move the crane whenever they desired a clear passage." }, { "docid": "7567673", "title": "", "text": "the floor of the dock, and the party went on board at a point abreast of hatch No. 3, which was open but was protected by a coaming about 30 inches high. Lying on the deck along and close to the shoreward coaming was a massive timber about 30 inches square, the upper surface thereof being nearly on a level with the crest of the coaming. For those who desired to use it, there was a ladder extending from the dock to the top of this timber. Stepping directly from the dock to the deck, appellee gave assistance to his wife as she walked along this ladder. Just how he got up on the large timber is not clear, but apparently when he turned or should have turned to the right, he stepped or stumbled from it into the open hatch and fell to the deck below. At the dose of all of the evidence, appellant moved for a directed verdict in its favor, and the denial of this motion is the subject of its principal assignment of error. The evidence is measurably conflicting, or at least is open to opposing inferences, touching the manner in which appellee and his friends went on board, the directions Hengst gave them, the exact position of the ladder, the condition of the deck, and the question of light. In short, had the issue been one only of the failure of Hengst to exercise an ordinary degree of care, the case may be conceded to have been one for the jury. Under plaintiff’s theory of his right to recover, admittedly such a standard would not be sufficient, and it is doubted whether in any view of the evidence it would warrant a finding that Hengst’s conduct was so grossly lacking in care for appellee’s safety that it could be characterized as willful or wanton. If the deck was well lighted there would be no room for a charge of negligence in any degree, and if it was in total darkness it would seem to have been the height of recklessness for one of appellee’s" } ]

[ { "docid": "4331386", "title": "", "text": "to the seller, and does return the products, the buyer revests title in the seller “even if [the] seller has been paid and has not refunded the purchase price”). Clearly, Aztec expected to receive a refund in exchange for returning the products and relinquishing title to them, but that is a claim sounding in breach of contract, not conversion. “A mere allegation to pay money may not be enforced by a conversion action ... and an action in tort is inappropriate where the basis of the suit is a contract, either express or implied.” Macomber v. Travelers Prop. & Cas. Corp., 261 Conn. 620, 650, 804 A.2d 180 (2002) (citing Belford Trucking Co. v. Zagar, 243 So.2d 646, 648 (Fla.App.1970)). Aztec specifically states, however, that the money it paid to Sensor Switch is not the object of its conversion claim and therefore the court will not address this issue further. Aztec cannot maintain a claim for conversion, i.e., a claim that Sensor Switch exercised unauthorized control over the products, when Aztec clearly stated in its complaint that it had no need for the products, it did not. want the products, and it sought only monetary credit for its return of the products. Accordingly, Aztec’s conversion claim fails and it shall be dismissed. B. Count Four — Statutory Theft In Count Four, the plaintiff alleges that Sensor Switch “intended to deprive Aztec Energy Partners of its property or to appropriate the same” and that “Sensor Switch wrongfully took, obtained or withheld Aztec Energy Partners’ property from Aztec Energy Partners, in violation of Conn. Gen.Stat. § 52-564.” (PL’s Compl. ¶¶ 35-36.) Statutory theft is “synonymous with larceny under General Statutes § 53a-119.” Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 44, 761 A.2d 1268 (2000). Therefore, to establish a claim for statutory theft, a plaintiff must plead and prove: 1) the products belonged to Aztec; 2) Sensor Switch intentionally deprived Aztec of its products; and 3) that Sensor Switch’s conduct was unauthorized. See Discover Leasing, Inc. v. Murphy, 33 Conn.App. 303, 309, 635 A.2d 843 (1993). Statutory theft is different from" } ]

[ { "docid": "15476112", "title": "", "text": "in the context of conversion, the Superior Court noted: the relationship between a property right, and the document evidencing that right, [is not] demarcated by a bright line as to what categories of intangible rights are defined wholly by reference to a document. Instead there appears to be a continuum, with those property rights that depend upon the document for their enjoyment (i.e. stock certificates, rights to payment evidenced by a check) on one end, and rights whose relationship to a document is wholly fortuitous (i.e. business good will, customer names) on the other. Id. at *5. It is unclear whether the Superior Court’s reference to a fortuitous document related to customer lists considered the existence of a contract or merely a document that actually lists customers. However, Zanker’s examination of the relationship between the lease document and the option right is instructive. In concluding that the option was an intangible subject to a conversion claim, Zcmker reasoned that the lease document was “a key to the protection and enjoyment of the property rights of the owner, such that the character of the option is closer to a stock certificate or a check than it is to a pure intangible such as business goodwill or the right to use the services of a radio tower.” Id. at *6. Here, the employment agreement is also more than a fortuitous document since it controls the scope of plaintiffs asserted property right. The Court will not dismiss the conversion claim on this motion, but will leave plaintiff to its proof that, as a result of Bardelli’s action, “it was excluded from exercising its right of ownership, possession and control over” its proprietary material and suffered a resulting harm. See News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 545, 862 A.2d 837 (2004). Tortious Interference with Contractual/Business Relations Defendants argue that plaintiffs claims of tortious interference with contractual/business relations should be dismissed for failure to allege tortious conduct. A claim of tortious interference with business relations requires a plaintiff to “plead and prove at least some improper motive or improper means” that" }, { "docid": "19440298", "title": "", "text": "Eckert Seamans took ministerial actions on behalf of its client, the Court questions whether Eckert Seamans is the proper party defendant. The Court therefore finds the Complaint presently fails to satisfy Rule 8 of the Federal Rules of Civil Procedure, because it does not clearly set forth facts allowing the Court to draw a reasonable inference that Eckert Seamans ever had actual or constructive possession of Mr. Vossbrinck's personal belongings. See Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. The Complaint instead indicates Accredited had actual possession the entire time and that Eckert Seamans never had control over the belongings outside its scope of representation for Accredited. Therefore, the Court need not address the statute of limitations issue regarding the sale of his personal belongings because conversion is not properly alleged against this Defendant. 2. Civil Theft In Connecticut, civil theft makes liable for treble damages \"[a]ny person who steals any property of another, or knowingly receives and conceals stolen property.\" Conn. Gen. Stat. § 52-564. Civil theft is synonymous with larceny as defined by Conn. Gen. Stat. § 53a-119. Hi-Ho Tower, Inc. v. Com-Tronics, Inc. , 255 Conn. 20, 44, 761 A.2d 1268 (2000). Under § 53a-119, a person engages in larceny \"when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains, or withholds such property from an owner.\" Conn. Gen. Stat. § 53a-119. \"The elements of civil theft are [ ] largely the same as the elements to prove the tort of conversion, but theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion.\" Sullivan v. Delisa , 101 Conn. App. 605, 620, 923 A.2d 760 (Conn. App. 2007). Specifically, a plaintiff must allege the defendant's intent to permanently deprive plaintiff of his property in order to recover for civil theft. See Whitaker v. Taylor , 99 Conn. App. 719, 732, 916 A.2d 834 (Conn. App. Ct. 2007) ; see also Howard v. MacDonald , 270 Conn. 111, 129, 851 A.2d" }, { "docid": "15476113", "title": "", "text": "the owner, such that the character of the option is closer to a stock certificate or a check than it is to a pure intangible such as business goodwill or the right to use the services of a radio tower.” Id. at *6. Here, the employment agreement is also more than a fortuitous document since it controls the scope of plaintiffs asserted property right. The Court will not dismiss the conversion claim on this motion, but will leave plaintiff to its proof that, as a result of Bardelli’s action, “it was excluded from exercising its right of ownership, possession and control over” its proprietary material and suffered a resulting harm. See News America Marketing In-Store, Inc. v. Marquis, 86 Conn.App. 527, 545, 862 A.2d 837 (2004). Tortious Interference with Contractual/Business Relations Defendants argue that plaintiffs claims of tortious interference with contractual/business relations should be dismissed for failure to allege tortious conduct. A claim of tortious interference with business relations requires a plaintiff to “plead and prove at least some improper motive or improper means” that is “beyond the fact of the interference itself.” Blake v. Levy, 191 Conn. 257, 262, 464 A.2d 52 (1983). Tortious conduct may be established by proof of fraud, misrepresentation, intimidation, or malicious intent on the part of a defendant. Robert S. Weiss & Associates, Inc. v. Wiederlight, 208 Conn. 525, 536, 546 A.2d 216 (1988). In considering whether the alleged specific acts of interference are improper, Blake referenced the factors enumerated in the Restatement (Second), Torts § 769, which include “(a) the nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the other with which the actor’s conduct interferes, (d) the interest sought to be advanced by the actor, (e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other, (f) the proximity or remoteness of the actor’s conduct to the interference and (g) the relations between the parties.” As previously discussed relevant to the claim of breach of implied covenant of good faith, the allegations indicate bad faith conduct on the" }, { "docid": "4331383", "title": "", "text": "which deprives another of his property permanently or' for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm.” Aetna Life & Cas. Co. v. Union Trust Co., 230 Conn. 779, 790-91, 646 A.2d 799 (1994) (Internal quotation marks omitted); see also D. Wright & J. Fitzgerald, Connecticut Law of Torts (2d Ed.1968) § 25, p. 28 (“[a]n action of conversion is a Suit for damages by the owner of a chattel, or by one entitled to the immediate possession of the chattel, against one who has wrongfully appropriated the chattel or has tampered with the chattel in derogation of the rights of the rightful owner or possessor”). Here, Sensor Switch did not “wrongfully appropriate” the products; Aztec authorized Sensor Switch’s possession of the products when it voluntarily sent them back to Sensor Switch. Aztec explicitly states in its complaint that it did not want Sensor Switch to return the products to it and refused to accept Sensor Switch’s proposal to rework the products and send them back to Aztec. Indeed, even if Aztec had properly alleged that it had a right to control or possess the products, “there can be no wrongful assertion of-dominion and control where property is voluntarily transferred to the defendant by the owner.” In re Alper-Richman Furs, Ltd., 147 B.R. 140, 151 (Bkrtcy.N.D.Ill.1992). Az tec waived its right to exercise control over the products and this waiver is fatal to its conversion claim. See Sanchez v. Forty’s Texaco Svc., Inc., 5 Conn.App. 438, 439-40, 499 A.2d 436 (1985) (holding that when the plaintiff left her car at defendant service station and failed to retrieve it when repairs were complete, she could not succeed on her claim for conversion against the defendant when it sold her car at auction). Provisions of the Uniform Commercial Code also support Sensor Switch’s argument that Aztec’s conversion claim should be dismissed. Normally, with a sale of goods, “title passes to the buyer at the time and place at which the seller completes ... physical delivery of the goods.” See Conn. Gen.Stat. § 42a-2-401(2)." }, { "docid": "2467155", "title": "", "text": "plaintiffs must present a theory of how either the rebates, or the money that the defendants allegedly have retained through their short-changing scheme, are the plaintiffs’ property. Id. at 649, 804 A.2d 180 (citations and internal quotation marks omitted). In the court’s view, plaintiffs’ conversion theory failed, for reasons that it is useful to quote at some length: An action for conversion of funds may not be maintained to satisfy a mere obligation to pay money.... It must be shown that the money claimed, or its equivalent, at all times belonged to the plaintiff and that the defendant converted it to his own use. The requirement that the money be identified as a specific chattel does not permit as a subject of conversion an indebtedness which may be discharged by the payment of money generally.... A mere obligation to pay money may not be enforced by a conversion action .... and an action in tort is inappropriate where the basis of the suit is a contract, either express or implied. Given that the plaintiffs did not allege that they owned or were ever in possession of the money that, they contended, is currently in the defendants’ possession, their conversion claim, as to the rebating scheme, must be stricken.... The plaintiffs also did not point to specific, identifiable money to which they had a right of possession. Consequently, the plaintiffs’ conversion count regarding the short-changing scheme must be stricken. Id. at 650-51, 804 A.2d 180 (citations and internal quotation marks omitted). In Deming v. Nationwide Mutual Insurance Co., 279 Conn. 745, 905 A.2d 628 (2006), plaintiff insurance agents brought actions against defendant insurance companies. Plaintiffs alleged that defendants had wrongfully withheld policy renewal commissions and deferred compensation which were owed to plaintiffs after the termination of their relationships as insurance agents for defendants. The trial court gave summary judgment for defendants, dismissing plaintiffs’ claims for conversion and statutory theft. The Supreme Court affirmed. The court cited and quoted its prior opinions in Hi-Ho Tower and Macomber, recalling the holding in Ma-comber that to sustain a claim for conversion, “It must be" }, { "docid": "10224553", "title": "", "text": "Church Corp., 250 Conn. 14, 26, 734 A.2d 85 (1999). b)Failure to Warn Under the CPLA, the Beyers must prove (1) that the SPF or its component parts were “defective in that adequate warnings or instructions were not provided” and (2) “that if adequate warnings or instructions had been provided, [the Bey-ers] would not have suffered the harm.” Conn. Gen. Stat. § 52-572q(a), (c); see also Batoh v. McNeil-PPC, Inc., 167 F.Supp.3d 296, 308 (D. Conn. 2016). The second element requires a showing of causation, but it is not restricted to medical causation because the failure to warn may have led to property damage. c)Breach of Implied Warranty of Workmanlike Conduct Plaintiffs style their third cause of action a breach of implied warranty but this is not an independent cause of action under Connecticut law and will be treated as part of the negligence claim in Plaintiffs’ first count. An allegation of failure to perform work in a “skillful, competent, and workmanlike manner” by its “very words implicated negligence principles” and where the damages alleged under either theory are the same, it is appropriate to construe the breach of contract claim as a negligence claim and to combine the two causes of action. Bonan v. Goldring Home Inspections, Inc., 68 Conn.App. 862, 871, 794 A.2d 997, 1004 (2002); see also Ranger v. Gianmarco, No. CV085004260, 2009 WL 1218790, at *2 (Conn. Super. Ct. Apr. 14, 2009) (“no authority has been found in which an implied warranty to perform the services in a workmanlike manner has been given status as an independent cause of action; rather, such a claim has been viewed as a breach of contract.”); New Hampshire Ins, v. Hartford, Sprinkler, No. CV0B4007221, 2008 WL 808914, at *2 (Conn. Sup. Ct. Mar. 10, 2008) (“where breach of service contract claims and negligence claims have been asserted in the same action, our courts have combined such claims into one negligence claim.”) d) Strict Liability for Product Defect “In order to recover under the doctrine of strict liability in tort the plaintiff must prove that: (1) the defendant was engaged in" }, { "docid": "19440300", "title": "", "text": "1142 (2004) ; see Deming v. Nationwide Mut. Ins. Co. , 279 Conn. 745, 771, 905 A.2d 623 (2006) (indicating statutory theft is different from conversion on two grounds: (1) it \"requires an intent to deprive another of his property\"; and (2) conversion requires the owner to be harmed). For the same reasons that Plaintiff's conversion claim fails, his civil theft claim fails too. See Kopperl v. Bain , 23 F.Supp.3d 97, 109 (D. Conn. 2014) (\"If in order to sustain a claim for statutory theft, when coupled with a claim for conversion arising out of the same facts, a plaintiff must prove 'the additional element of intent over and above what he or she must demonstrate to prove conversion,' it necessarily follows that a plaintiff who cannot prove conversion also cannot prove statutory theft.\"). The Court also cautions Plaintiff that the mere allegation that Defendant removed Plaintiff's property fails to allege Defendant Eckert Seamans \"acted with the requisite intent to deprive the plaintiff of her property.\" Whitaker , 99 Conn. App. at 732, 916 A.2d 834 (Conn. App. Ct. 2007). Although statutory theft does not require a heightened pleading standard, Milo v. Galante , No. 3:09cv1389 (JBA), 2011 WL 1214769, at *8 (D. Conn. Mar. 28, 2011), Plaintiff must allege facts tending to show Defendant's intent to permanently deprive him of the property, Whitaker , 99 Conn. App. at 732, 916 A.2d 834. Plaintiff has not done so here. IV. Conclusion For the aforementioned reasons, the Court hereby GRANTS Defendant's Motion to Dismiss. This case is DISMISSED without prejudice to refiling within 35 days of the date of this decision an amended complaint that properly asserts a valid claim under state law. Failure to do so will result in a dismissal with prejudice. The Clerk is directed to close this case. IT IS SO ORDERED. As a result of failing to redeem legal title, unconditional title to the property passed to Accredited, which gave Accredited the right to possession. Sovereign Bank v. Licata , 178 Conn. App. 82, 97, 172 A.3d 1263 (Conn. App. Ct. 2017) (quoting City Lumber" }, { "docid": "2467153", "title": "", "text": "breach of agreement conclusively demonstrate that, irrespective of the question of whether intangible property may be the subject of the torts in question, the plaintiff did not persuade the jury that the defendants’ conduct was without the authorization of the plaintiff. Id. In Macomber v. Travelers Property and Casualty Corp., 261 Conn. 620, 804 A.2d 180 (2002), the plaintiffs were automobile accident victims who entered into structured settlements with defendant liability insurers. Plaintiffs brought an action, in ten substantive counts, based on defendants’ conduct in entering into and funding certain structured settlements with plaintiffs. The trial court granted defendants’ motion to strike the complaint in its entirety, concluding that “regardless of the theory of liability offered by the plaintiffs, all counts of their complaint must fail because they did not sufficiently allege any legally cognizable damages.” 261 Conn. at 623, 804 A.2d 180. The Supreme Court held that conclusion was in error, but went on to consider defendants’ “alternative grounds for striking each count of the complaint,” and ultimately affirmed the dismissals in part and reversed them in part. Id. One of the counts the Supreme Court held must be stricken was that for conversion. Plaintiffs’ theory was that the defendants, by including certain rebates in the funding and payment of the settlements, “committed conversion whereby they assumed control and exercised ownership rights over money belonging to the plaintiffs and appropriated such money for themselves to the detriment of the plaintiffs.” 261 Conn. at 648-49, 804 A.2d 180 (internal quotation marks and ellipses omitted). The Supreme Court held that the defendants’ conduct did not fall within the tort of conversion. The court began its analysis by saying: We have defined conversion as an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner’s rights.... The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm.... Thus, for the plaintiffs conversion claim to survive a motion to strike, the" }, { "docid": "19440299", "title": "", "text": "by Conn. Gen. Stat. § 53a-119. Hi-Ho Tower, Inc. v. Com-Tronics, Inc. , 255 Conn. 20, 44, 761 A.2d 1268 (2000). Under § 53a-119, a person engages in larceny \"when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains, or withholds such property from an owner.\" Conn. Gen. Stat. § 53a-119. \"The elements of civil theft are [ ] largely the same as the elements to prove the tort of conversion, but theft requires a plaintiff to prove the additional element of intent over and above what he or she must demonstrate to prove conversion.\" Sullivan v. Delisa , 101 Conn. App. 605, 620, 923 A.2d 760 (Conn. App. 2007). Specifically, a plaintiff must allege the defendant's intent to permanently deprive plaintiff of his property in order to recover for civil theft. See Whitaker v. Taylor , 99 Conn. App. 719, 732, 916 A.2d 834 (Conn. App. Ct. 2007) ; see also Howard v. MacDonald , 270 Conn. 111, 129, 851 A.2d 1142 (2004) ; see Deming v. Nationwide Mut. Ins. Co. , 279 Conn. 745, 771, 905 A.2d 623 (2006) (indicating statutory theft is different from conversion on two grounds: (1) it \"requires an intent to deprive another of his property\"; and (2) conversion requires the owner to be harmed). For the same reasons that Plaintiff's conversion claim fails, his civil theft claim fails too. See Kopperl v. Bain , 23 F.Supp.3d 97, 109 (D. Conn. 2014) (\"If in order to sustain a claim for statutory theft, when coupled with a claim for conversion arising out of the same facts, a plaintiff must prove 'the additional element of intent over and above what he or she must demonstrate to prove conversion,' it necessarily follows that a plaintiff who cannot prove conversion also cannot prove statutory theft.\"). The Court also cautions Plaintiff that the mere allegation that Defendant removed Plaintiff's property fails to allege Defendant Eckert Seamans \"acted with the requisite intent to deprive the plaintiff of her property.\" Whitaker , 99 Conn. App. at 732, 916" }, { "docid": "3116344", "title": "", "text": "clearly based upon a physical injury, the “harmful and offensive contact ” by plaintiffs supervisor. This claim is barred by the exclusivity provision of the Workers’ Compensation Act. See Driscoll, 252 Conn. at 228, 752 A.2d 1069. TV. Count VI — Assault & Battery In count six, plaintiff alleges that defendant breached its duty of providing him with a safe working environment when offensive and harmful contact occurred “by and through [defendant’s] agent.” (Pl.’s Compl. ¶¶ 69-72.) It is well settled under Connecticut law that an employer is not vicariously liable for the intentional torts committed by an employee, except under limited circumstances not applicable here. See A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 208, 579 A.2d 69 (1990); Brown v. Housing Auth., 23 Conn.App. 624, 583 A.2d 643 (1990). Moreover, in the instant case, plaintiff has alleged sexual misconduct by an employee, who was acting outside the scope of employment and in a manner prohibited by defendant’s sexual harassment policy. See Gutierrez, 13 Conn.App. at 499, 537 A.2d 527. Thus, defendant cannot be held vicariously liable in tort for the alleged sexual assault and battery. V Count VII — Intentional Infliction of Emotional Distress In his seventh count, plaintiff alleges intentional infliction of emotional distress by defendant. He alleges in conclusory fashion that defendant’s conduct was extreme and outrageous “by and through the intentional acts of their employee agent.” (Pl.’s Compl. ¶ 74.) Under Connecticut law, to state a cause of action for intentional infliction of emotional distress, a plaintiff must allege that: (1) the defendant intended or knew that emotional distress would likely result from its conduct; (2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s conduct caused plaintiff distress: and (4) that plaintiffs distress was severe. Appleton v. Board of Educ. of Stonington, 254 Conn. 205, 210, 757 A.2d 1059 (2000); Vorvis v. Southern New Eng. Tel. Co., 821 F.Supp. 851, 855 (D.Conn.1993), (citing Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986)). In interpreting what constitutes “extreme and outrageous” conduct, Connecticut courts have relied on the Restatement (Second) of" }, { "docid": "19440287", "title": "", "text": "tolled. Therefore, even if Defendant Eckert Seamans could have been held liable for the ejectment, the claims would have been time-barred. With respect to the belongings left on the premises, the statute of limitations issue requires more nuanced analysis that is dependent upon the claims asserted. The Court will address the conversion claim and the civil theft claim separately. 1. Conversion Conversion is the \"unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights.\" Aetna Life & Cas. Co. v. Union Trust Co. , 230 Conn. 779, 790, 646 A.2d 799 (1994) (citations omitted); see Gilbert v. Walker , 64 Conn. 390, 30 A. 132, 134 (1894) (\"It is some unauthorized act, which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion, and to his harm.\"). There are two types of conversion, the first of which occurs where \"possession of the allegedly converted goods is wrongful from the outset\" and the second which \"arises subsequent to an initial rightful possession.\" Maroun v. Tarro , 35 Conn. App. 391, 396, 646 A.2d 251 (Conn. App. Ct. 1994). Under the second class of conversion, a rightful possession may become wrongful in one of three ways: (1) \"a wrongful detention,\" (2) \"the exercise of an unauthorized dominion over the property,\" or (3) \"a wrongful use of the property.\" Luciani v. Stop & Shop Cos., Inc. , 15 Conn. App. 407, 410, 544 A.2d 1238 (Conn. App. Ct. 1988). The parties do not specify which type of conversion applies. Accredited took lawful title and right to possession of the premises when judgment entered and the law day passed. See Licata , 178 Conn. App. at 97, 172 A.3d 1263 (where the passing of the law day renders foreclosure decree absolute, the right to redeem is terminated and the" }, { "docid": "19440288", "title": "", "text": "right of dominion, and to his harm.\"). There are two types of conversion, the first of which occurs where \"possession of the allegedly converted goods is wrongful from the outset\" and the second which \"arises subsequent to an initial rightful possession.\" Maroun v. Tarro , 35 Conn. App. 391, 396, 646 A.2d 251 (Conn. App. Ct. 1994). Under the second class of conversion, a rightful possession may become wrongful in one of three ways: (1) \"a wrongful detention,\" (2) \"the exercise of an unauthorized dominion over the property,\" or (3) \"a wrongful use of the property.\" Luciani v. Stop & Shop Cos., Inc. , 15 Conn. App. 407, 410, 544 A.2d 1238 (Conn. App. Ct. 1988). The parties do not specify which type of conversion applies. Accredited took lawful title and right to possession of the premises when judgment entered and the law day passed. See Licata , 178 Conn. App. at 97, 172 A.3d 1263 (where the passing of the law day renders foreclosure decree absolute, the right to redeem is terminated and the plaintiff has unconditional title to the property \"with a consequent and accompanying right to possession\"); Denis R. Caron, Geoffrey K. Milne, Connecticut Foreclosures: An Attorney's Manual of Practice and Procedure (Vol. I), 626-27 (8th ed. 2018) (\"If no defendant redeems in a strict foreclosure action, title becomes absolute in the plaintiff after the passage of the law days.\"). By effectuating the ejectment, Accredited lawfully took possession of the premises. The ejectment statute provides the state marshal \"shall eject the person or persons in possession and may remove such person's possessions and personal effects ....\" Conn. Gen. Stat. § 48-22(a) (emphasis added). The statute does not confer a duty on Accredited to remove or secure Plaintiff's belongings, and accordingly Accredited came into rightful possession of the belongings that Plaintiff left on the premises after ejectment because Plaintiff intended to leave these items while litigation was pending. See [Dkt. 1-1 ¶ 14 (wherein Plaintiff left his personal belongings on the premises because he believed they \"would be safe and secure until his pending appeal was decided\") ]." }, { "docid": "15476110", "title": "", "text": "best interests and accessed, without authorization, extensive information in Modis’ database about its clients for her own purposes.” These allegations are incorporated into plaintiffs claim for breach of the covenant of good faith and sufficiently allege conduct that may be construed as “bad faith.” The motion to dismiss will be denied on this ground. Conversion Defendants attack plaintiffs conversion claim as improper since the tort of conversion does not apply to intangible property pursuant to Connecticut law. Plaintiff argues that the conversion claim is proper because the intangible property rights at issue are evidenced in the employment agreement and in Bardelli’s emails. The Connecticut Supreme Court has defined conversion as “some unauthorized act which deprives another of his property permanently or for an indefinite time” resulting in harm to the owner. Falker v. Samperi, 190 Conn. 412, 419-420, 461 A.2d 681 (Conn.1983). In Connecticut, “intangible property interests have not traditionally been subject to the tort of conversion, except for those intangible property rights evidenced in a document.” Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 44, 761 A.2d 1268 (2000). Defendants rely, inter alia, upon Pepe & Hazard v. Jones, 2002 WL 31460309 (Conn.Super.), which considered whether a jury trial need be provided for claims for statutory computer conversion and the Connecticut Unfair Trade Secrets Act. The Superior Court reasoned that a jury trial on such claims was not required since theft or misappropriation of intangible property such as a trade secret had no root or analogue in common law conversion. However, the Connecticut Supreme Court’s recent holding that a misappropriation of trade secrets claim is properly characterized as an action sounding in damages entitled to a jury trial for damages compromises the persuasive value of Pepe & Hazard. Evans v. General Motors Corp., 277 Conn. 496, 518, 893 A.2d 371 (2006). Defendants advance language from Zanker Group, LLC v. Summerville at Litchfield Hills, LLC, 2006 WL 2130382 (Conn.Super.). In Zanker, the Superior Court considered whether an option to purchase real property evidenced in a lease could be subject to the tort of conversion. In discussing intangible property rights" }, { "docid": "10039106", "title": "", "text": "even if the complainant did not explicitly request a dual filing\") (internal citations omitted). . See Mead v. Burns, 199 Conn. 651, 509 A.2d 11, 17-18 (1986) (holding that a cause of action exists under the Connecticut Unfair Trade Practices Act for violations of the CUI-PA); Green v. Gov’t Employees Ins. Co., No. CV040287116S, 2005 WL 704912, at *1 n. 1 (Conn.Super.Ct. Feb.25, 2005) (citing Mead for the same proposition). . Under Connecticut law, \"to establish a pri-ma facie case of conversion, the plaintiff ha[s] to demonstrate that (1) the material at issue belonged to the plaintiff, (2) that [defendant] deprived the plaintiff of that material for an indefinite period of time, (3) that [defen dant's] conduct was unauthorized, and (4) that [defendant’s] conduct harmed the plaintiff.” News America Mktg. In-Store, Inc. v. Marquis, 86 Conn.App. 527, 862 A.2d 837, 848 (2004). . See Amended Compl., Exhibit 1, ¶ 1 (\"This Agreement, which includes the attached Schedule of Commissions and Expense Allowance, supersedes all of the Field Agent's previous Field Agent Contracts.”). The \"Schedule of Commissions” was not attached to or incorporated into the Complaint or Defendants’ motions to dismiss, and therefore could not be considered in deciding this motion. . Under Fed.R.CivP. 12(f), the court may, upon the motion of a party or sua sponte, \"order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” . See Amended Compl., ¶ 85 (Count I), ¶ 109 (Count II). . See id. ¶ 118 (Count II). . See id. ¶ 110 (Count II). . See id. ¶¶ 28, 29, 101, 107. . See id. ¶¶ 84, 119, 192, 210, 235, 261, 285, 300. . See id. ¶¶ 118, 193, 209, 260, 286, 299." }, { "docid": "2467154", "title": "", "text": "reversed them in part. Id. One of the counts the Supreme Court held must be stricken was that for conversion. Plaintiffs’ theory was that the defendants, by including certain rebates in the funding and payment of the settlements, “committed conversion whereby they assumed control and exercised ownership rights over money belonging to the plaintiffs and appropriated such money for themselves to the detriment of the plaintiffs.” 261 Conn. at 648-49, 804 A.2d 180 (internal quotation marks and ellipses omitted). The Supreme Court held that the defendants’ conduct did not fall within the tort of conversion. The court began its analysis by saying: We have defined conversion as an unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner’s rights.... The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his right of dominion and to his harm.... Thus, for the plaintiffs conversion claim to survive a motion to strike, the plaintiffs must present a theory of how either the rebates, or the money that the defendants allegedly have retained through their short-changing scheme, are the plaintiffs’ property. Id. at 649, 804 A.2d 180 (citations and internal quotation marks omitted). In the court’s view, plaintiffs’ conversion theory failed, for reasons that it is useful to quote at some length: An action for conversion of funds may not be maintained to satisfy a mere obligation to pay money.... It must be shown that the money claimed, or its equivalent, at all times belonged to the plaintiff and that the defendant converted it to his own use. The requirement that the money be identified as a specific chattel does not permit as a subject of conversion an indebtedness which may be discharged by the payment of money generally.... A mere obligation to pay money may not be enforced by a conversion action .... and an action in tort is inappropriate where the basis of the suit is a contract, either express or implied. Given that the plaintiffs did" }, { "docid": "10039105", "title": "", "text": "§ 46a-100 provides, in pertinent part, that '[a]ny person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with Section 46a-82 and who has obtained a release from the commission in accordance with Section 46a-83a or 46a-101, may also bring an action in the superior court for the judicial district in which the discriminatory practice is alleged to have occurred.’ General Statutes § 46a-101(a) further provides that '[n]o action may be brought in accordance with Section 46a-100 unless the complainant has received a release from the commission.' ”). . For information on the exhaustion requirements under the ADEA, see O’Neil v. Montgomery County Cmty. College, No. 05-5169, 2006 WL 1648990, at *2 (E.D.Pa. June 12, 2006) (The ADEA \"require[s] a plaintiff to file a complaint with the [Equal Employment Opportunity Commission (\"EEOC”)] within 300 days of the alleged unlawful employment activity prior to bringing suit. Under a sharing agreement between the PHRC and the EEOC, a complaint filed with the PHRC can be deemed filed with the EEOC, even if the complainant did not explicitly request a dual filing\") (internal citations omitted). . See Mead v. Burns, 199 Conn. 651, 509 A.2d 11, 17-18 (1986) (holding that a cause of action exists under the Connecticut Unfair Trade Practices Act for violations of the CUI-PA); Green v. Gov’t Employees Ins. Co., No. CV040287116S, 2005 WL 704912, at *1 n. 1 (Conn.Super.Ct. Feb.25, 2005) (citing Mead for the same proposition). . Under Connecticut law, \"to establish a pri-ma facie case of conversion, the plaintiff ha[s] to demonstrate that (1) the material at issue belonged to the plaintiff, (2) that [defendant] deprived the plaintiff of that material for an indefinite period of time, (3) that [defen dant's] conduct was unauthorized, and (4) that [defendant’s] conduct harmed the plaintiff.” News America Mktg. In-Store, Inc. v. Marquis, 86 Conn.App. 527, 862 A.2d 837, 848 (2004). . See Amended Compl., Exhibit 1, ¶ 1 (\"This Agreement, which includes the attached Schedule of Commissions and Expense Allowance, supersedes all of the Field Agent's previous Field Agent Contracts.”). The \"Schedule of" }, { "docid": "3116345", "title": "", "text": "cannot be held vicariously liable in tort for the alleged sexual assault and battery. V Count VII — Intentional Infliction of Emotional Distress In his seventh count, plaintiff alleges intentional infliction of emotional distress by defendant. He alleges in conclusory fashion that defendant’s conduct was extreme and outrageous “by and through the intentional acts of their employee agent.” (Pl.’s Compl. ¶ 74.) Under Connecticut law, to state a cause of action for intentional infliction of emotional distress, a plaintiff must allege that: (1) the defendant intended or knew that emotional distress would likely result from its conduct; (2) the defendant’s conduct was extreme and outrageous; (3) the defendant’s conduct caused plaintiff distress: and (4) that plaintiffs distress was severe. Appleton v. Board of Educ. of Stonington, 254 Conn. 205, 210, 757 A.2d 1059 (2000); Vorvis v. Southern New Eng. Tel. Co., 821 F.Supp. 851, 855 (D.Conn.1993), (citing Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986)). In interpreting what constitutes “extreme and outrageous” conduct, Connecticut courts have relied on the Restatement (Second) of Torts § 46, comment d (1965), which provides: “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” See DeLaurentis v. City of New Haven, 220 Conn. 225, 266-67, 597 A.2d 807 (1991); Petyan v. Ellis, 200 Conn. at 254 n. 5, 510 A.2d 1337. Whether a defendant’s conduct rises to the level of being “extreme and outrageous” is a question to be determined by the court in the first instance. See, e.g., Johnson v. Chesebrough-Pond’s USA Co., 918 F.Supp. 543, 552 (D.Conn.), aff'd, 104 F.3d 355, 1996 WL 734043 (2d Cir.1996); Appleton, 254 Conn, at 210, 757 A.2d 1059. It is only when reasonable minds disagree that it becomes an issue for the jury. The threshold issue is whether plaintiff has alleged extreme and outrageous conduct by the defendant. Here, plaintiff has not alleged that any of the actions taken by defendant were" }, { "docid": "20557216", "title": "", "text": "Policemen’s Annuity & Ben. Fund of the City of Chicago v. Bank of New York Mellon, 775 F.3d 154, 159 (2d Cir.2014). But “‘[t]o survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir.2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). Adequacy of CUTPA Allegations CUTPA prohibits the use of “unfáir or deceptive acts or practices in the conduct of any trade or commerce.” Conn. Gen.Stat. § 42-110b(a). CUTPA claims can be based on either an “actual deceptive practice” or an unfair practice — that is, a “practice amounting to a violation' of public policy.” Ulbrich v. Groth, 310 Conn. 375, 409, 78 A.3d 76 (2013) (internal quotation marks omitted). Here, plaintiff claims that defendant’s practices are both deceptive and unfair. An act or practice is actually deceptive under CUTPA when there is: (1) “a representation, omission, or other practice likely to mislead consumers”; (2) the consumer “interprets] the message reasonably under the circumstances”; and (3) “the misleading representation, omission, or practice [is] material — that is, likely to affect consumer decisions or conduct.” Smithfield Assocs., LLC v. Tolland Bank, 86 Conn.App. 14, 28, 860 A.2d 738 (2004) (internal quotation marks omitted). To determine whether an act or practice is unfair under CUTPA, Connecticut courts look to the following factors: (1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise — in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons]. Ulbrich, 310 Conn. at 409, 78 A.3d 76 (alterations in original) (internal quotation marks omitted). “It is well settled that whether a defendant’s acts constitute ... deceptive or unfair trade practices under CUTPA" }, { "docid": "19440286", "title": "", "text": "any \"action founded upon a tort\" must be brought \"within three years from the date of the act or omission complained of.\" This statute is occurrence-based, meaning the time period begins to run on the date the act occurs; the accrual period cannot be delayed to after the cause of action accrues or the injury occurs. See Fichera v. Mine Hill Corp. , 207 Conn. 204, 212, 541 A.2d 472 (1988) ; Certain Underwriters , 289 Conn. at 408, 957 A.2d 836. The Court first addresses the items removed during the ejectment. Notwithstanding the fact that Defendant Eckert Seamans is not liable for damage resulting from the ejectment in October 2012, the statute of limitations period also bars claims arising therefrom. As the act occurred in October 2012, the statute of limitations ran in October 2015 and Mr. Vossbrinck did not file this action until February 21, 2017. See [Dkt. 1]. He has not raised any equitable principles or stated any facts that would cause the Court to find the statute of limitations should be tolled. Therefore, even if Defendant Eckert Seamans could have been held liable for the ejectment, the claims would have been time-barred. With respect to the belongings left on the premises, the statute of limitations issue requires more nuanced analysis that is dependent upon the claims asserted. The Court will address the conversion claim and the civil theft claim separately. 1. Conversion Conversion is the \"unauthorized assumption and exercise of the right of ownership over goods belonging to another, to the exclusion of the owner's rights.\" Aetna Life & Cas. Co. v. Union Trust Co. , 230 Conn. 779, 790, 646 A.2d 799 (1994) (citations omitted); see Gilbert v. Walker , 64 Conn. 390, 30 A. 132, 134 (1894) (\"It is some unauthorized act, which deprives another of his property permanently or for an indefinite time; some unauthorized assumption and exercise of the powers of the owner to his harm. The essence of the wrong is that the property rights of the plaintiff have been dealt with in a manner adverse to him, inconsistent with his" }, { "docid": "15476109", "title": "", "text": "allege conduct constituting bad faith. In the context of a breach of the covenant of good faith and fair dealing, bad faith involves a dishonest purpose. Barber v. Jacobs, 58 Conn.App. 330, 338, 753 A.2d 430 (Conn.App.), cert. denied, 254 Conn. 920, 759 A.2d 1023 (2000). Paragraph 2 of the amended complaint alleges that the “action arises out of a scheme devised and implemented by Defendant Bardelli, while formerly employed with Modis, to convert, conceal and misappropriate Modis’ trade secrets and other confidential proprietary information in furtherance of her plan to unfairly compete with Modis and tortiously interfere with contractual relations in violation of ... her non-solicitation, non-compete and confidentiality obligations in her employment contract with Modis.” Paragraph 37 provides that, while Bardelli was still employed with Modis, she began communicating with Edge about working for Edge in a similar position as the one she held with Modis. The complaint goes on to describe how she “utilized Modis’ electronic mail (“e-mail”) system on her working time at Modis to her advantage and contrary to Modis’ best interests and accessed, without authorization, extensive information in Modis’ database about its clients for her own purposes.” These allegations are incorporated into plaintiffs claim for breach of the covenant of good faith and sufficiently allege conduct that may be construed as “bad faith.” The motion to dismiss will be denied on this ground. Conversion Defendants attack plaintiffs conversion claim as improper since the tort of conversion does not apply to intangible property pursuant to Connecticut law. Plaintiff argues that the conversion claim is proper because the intangible property rights at issue are evidenced in the employment agreement and in Bardelli’s emails. The Connecticut Supreme Court has defined conversion as “some unauthorized act which deprives another of his property permanently or for an indefinite time” resulting in harm to the owner. Falker v. Samperi, 190 Conn. 412, 419-420, 461 A.2d 681 (Conn.1983). In Connecticut, “intangible property interests have not traditionally been subject to the tort of conversion, except for those intangible property rights evidenced in a document.” Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn." } ]

[ { "docid": "22722384", "title": "", "text": "with some numbness and permanent hearing loss. Id., at 15-16; 60 F. 3d, at 554. Jones objected that the 25-year recommendation was out of bounds, since serious bodily injury was an element of the offense defined in part by §2119(2), which had been neither pleaded in the indictment nor proven before the jury. App. 12-13. The District Court saw the matter differently and, based on its finding that the serious bodily injury allegation was supported by a preponderance of the evidence, imposed a 25-year sentence on the carjacking count, ibid., together with a consecutive 5-year sentence for the firearm offense, 60 F. 3d, at 549. of Appeals did not read §2119(2) as setting out an element of an independent offense. Id., at 551-554. The Ninth Circuit thus agreed with the Eleventh, see United States v. Williams, 51 F. 3d 1004, 1009-1010 (1995), in reasoning that the structure of the statute, particularly the grammatical dependence of the numbered subsections on the first paragraph, demonstrated Congress’s understanding that the subsections did not complete the definitions of separate crimes. 60 F. 3d, at 552-558. For its view that the subsections provided sentencing factors, the court found additional support in the statute’s legislative history. The heading on the subtitle of the bill creating §2119 was “Enhanced Penalties for Auto Theft,” which the court took as indicating that the statute’s numbered subsections merely defined sentencing enhancements. Id., at 553. The court also noted several references in the Committee Reports and floor debate on the bill to enhanced penalties for an apparently single carjacking offense. Ibid. Because of features arguably distinguishing this case from Almendarez-Torres v. United States, 523 U. S. 224 (1998), we granted certiorari, 523 U. S. 1045 (1998), and now reverse. Much, turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt. See, e. g., Hamling v. United States, 418 U. S. 87, 117 (1974); United States v. Gaudin, 515 U. S. 506," } ]

[ { "docid": "22196538", "title": "", "text": "admission of Beman’s prior convictions for possession of methamphetamine with intent to distribute, and its calculation of the amount of methamphetamine attributable to the conspiracy. A. Constitutional Challenge 1. Review of Supreme Court Precedent Prior to Apprendi, the Supreme Court’s most recent decision in this area was Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). In Jones, the Court considered a challenge to a conviction under the federal car jacking statute (18 U.S.C. § 2119). The Court determined that, given the structural uncertainty as to whether the injury or death of a victim was a sentencing factor or an element of an independent crime, the doctrine of constitutional doubt required that the courts interpret the provisions as establishing separate crimes, all elements of which had to be proven to a jury beyond a reasonable doubt. Similarly, in Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000), the Court construed an ambiguous statute as setting out separate offenses rather than a single offense with sentencing factors. The Court’s analysis in these cases looks to the structure of the statute in issue, the legislative history, and whether courts historically considered a particular fact during the sentencing phase. Compare Almendarez-Torres v. United States, 523 U.S. 224, 230, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (finding that recidivism’s typical status as a sentencing factor weighed against construing statute provision as creating a separate element of the crime rather than a sentencing factor) and Castillo v. United States, 120 S.Ct. at 2093-94 (use of a machine gun not a typical sentencing factor). In a footnote to Jones, the Court foreshadowed its eventual holding in Apprendi by noting that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt.” Jones, 526 U.S. at 227 n. 6, 119 S.Ct. 1215. The Supreme Court, however, then explicitly" }, { "docid": "23573025", "title": "", "text": "sentence grossly disproportionate to the crime committed. A Border Patrol officer was shot in the head. That Gamez did not pull the trigger does not render his sentence cruel and unusual punishment. See United States v. Cupa-Guillen, 34 F.3d 860, 864 (9th Cir.1994) (“[A] sentence within the limits set by a valid statute may not be overturned on appeal as cruel and unusual punishment unless the sentence is so grossly out of proportion to the severity of the crime as to shock our sense of justice.”) (internal quotations and citations omitted). Finally, Gamez contends that the district court’s application of U.S.S.G. § 2Dl.l(d)(l)’s murder cross-reference to enhance his sentence by 105 months without submitting the enhancing factors to the jury for proof beyond a reasonable doubt violated his right to due process and to trial by jury. In support of his position, Gamez relies on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000), and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). Jones held that provisions of a carjacking statute that established higher penalties when the offense resulted in serious bodily injury or death set forth additional elements of the offense rather than sentencing factors. Those elements had to be charged in an indictment, submitted to a jury, and proved beyond a reasonable doubt. Jones, 526 U.S. at 243-44, 252. Similarly, Castillo held that provisions of a criminal statute that created offense elements rather than sentencing factors had to be determined by a jury. Castillo, 530 U.S. at 131. Unlike Jones and Castillo, the instant case does not involve a criminal statute that provides steeper sentences for variants of a crime. Instead, it involves application of a cross-reference provided by the Guidelines to enhance a defendant’s sentence based upon aggravating circumstances surrounding the crime committed. Gamez need not be found guilty of murder in order to receive a higher sentence for his drug trafficking convictions. The Guidelines simply require that the sentencing court find" }, { "docid": "6043207", "title": "", "text": "imagine.” Id. at 230, 118 S.Ct. 1219. “Consequently, neither the statute nor the Constitution requirefd] the Government to charge the factor that it mentions, an earlier conviction, in the indictment.” Id. at 226-27, 118 S.Ct. 1219. Only one year later, in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Court addressed provisions of a carjacking statute that established higher penalties to be imposed when death or serious bodily harm occurred. See 18 U.S.C. § 2119. In Jones, the Court held “the fairest reading of § 2119 treats the fact of serious bodily harm as an element, not a mere enhancement,” relating to the substantive offense of carjacking. Jones, 526 U.S. at 239, 119 S.Ct. 1215. While the holding in Jones appears to lend support to Campbell’s argument, the Jones Court explicitly distinguished Almendarez-Torres with respect to recidivism statutes. Id. at 235, 118 S.Ct. 1219 (noting that Almendarez-Torres stressed the “history of treating recidivism as a sentencing factor” and the absence of any statute clearly making prior convictions offense elements where the offense conduct was independently unlawful). While explaining that Almendarez-Torres did not control the result in Jones, the Court stated: “Almendarez-Torres ... stands for the proposition that not every fact expanding a penalty range must be stated in a felony indictment, the precise holding being that recidivism increasing the maximum penalty need not be so charged.” Id. at 248, 118 S.Ct. 1219. The Supreme Court again addressed the issue of sentence enhancements a year later in Apprendi, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435. Apprendi resolved the question of whether a state hate crime statute that increased the statutory maximum penalty for underlying firearms convictions, based upon a judge’s finding (by a preponderance of the evidence) that the defendant acted with the purpose to intimidate the victim based upon race, violated the Due Process Clause. The Court held it did and, as a general matter, any fact that will increase the penalty for a crime beyond the statutory maximum must be submitted to the jury. Id. at 490-97, 120 S.Ct. 2348." }, { "docid": "23565488", "title": "", "text": "construe a statute to avoid “serious constitutional problems,” we cannot do so if “such construction is plainly contrary to the intent of Congress.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988). For the reasons already discussed, construing § 841(b) as containing elements of the offense rather than sentencing factors is “plainly contrary to the intent of Congress.” Cf. United States v. Kelly, 105 F.Supp.2d 1107, 1115 (S.D.Cal.2000) (reasoning that “congressional idleness in the face of voluminous precedent” that § 841(b) contains sentencing factors, not elements, indicates Congress’ agreement). Furthermore, we are bound by Nordby, which has already held that § 841(b) is not susceptible to the interpretation that it contains elements of the offense. See 225 F.3d at 1058. Second, the analysis in Brough does not acknowledge the role of congressional intent in evaluating the constitutionality of a statute. Whether Congress intended drug quantity to be a sentencing factor rather than an element of the offense is integral to the question. Cf., e.g., Jones, 526 U.S. at 232, 119 S.Ct. 1215 (in construing 18 U.S.C. § 2119, the Court reasoned that “[m]uch turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt”). Indeed, in two cases decided shortly before Apprendi, the Supreme Court’s statutory analysis focused on determining legislative intent. See, e.g., Castillo v. United States, 530 U.S. 120, 123, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000) (identifying the question presented as “whether Congress intended the statutory references to particular firearm types in [18 U.S.C.] § 924(c)(1) to define a separate crime or simply to authorize an enhanced penalty”); Jones, 526 U.S. at 232-40, 119 S.Ct. 1215 (examining statute’s structure and history, as well as similar statutes passed by Congress, in order to determine congressional intent on whether factor was element of offense or sentencing consideration); see also Almendarez-Torres, 523 U.S. at 228, 118" }, { "docid": "19653898", "title": "", "text": "sets forth sentencing factors that govern sentences imposed for violating the substantive offense defined in § 848(c), rather than elements of a separate crime. Accordingly, the court concluded that the government did not have to charge Tidwell with violating subsection (b), and that the conduct proscribed therein need only be established by a preponderance of the evidence. Tidwell’s primary argument on appeal is that the life sentence that is mandated by § 848(b) could not be constitutionally imposed because the factual basis was not charged in the indictment, nor proven beyond a reasonable doubt. II. DISCUSSION Congressional intent controls whether § 848(b) contains elements of a separate offense as Tidwell maintains, or merely sentencing factors as the district court concluded. Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). In order to discern that intent, we must examine the language and structure of the statute, its subject matter, context and legislative history. See, e.g., Almendarez-Torres v. United States, 523 U.S. 224, 228, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998); Castillo v. United States, 530 U.S. 120, 124, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000); Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). Our inquiry is guided by four Supreme Court decisions wherein the Court discussed the difference between statutory provisions intended as sentencing factors and statutory provisions intended as elements of a crime. We begin our analysis of the legislative intent underlying § 848(b) by discussing each of those decisions. A. Almendarez-Torres In Almendarez-Torres v. United States, supra, the Court held that Congress intended subsection (b)(2) of 8 U.S.C. § 1326 as sentencing factors, rather than elements of a crime. 8 U.S.C. § 1326 provided, in relevant part: (a) Subject to subsection (b) of this section, any alien who— (1) has been ... deported ..., and thereafter (2) enters ..., or is at any time found in, the United States [without the Attorney General’s consent or the legal equivalent], shall be fined under title 18, or imprisoned not more than 2 years, or both. (b) Notwithstanding subsection (a) of" }, { "docid": "22355304", "title": "", "text": "criminal prosecution: it must be charged in the indictment, submitted to the jury, subject to the rules of evidence, and proved beyond a reasonable doubt. This is the exact treatment necessary to prove an element of a crime, and thus I find it puzzling that the opinion does not simply acknowledge that the quantity in those circumstances is an element of an aggravated crime. The problem with treating this as a separate category, neither an element of a crime nor a sentencing factor, arises not from the majority opinion in which it treats the indictment and proof of these factors exactly as they would be treated if they were elements of a crime. The problem arises with the treatment in other opinions where they may not have to be charged in the indictment or may be required to be proved to a jury beyond a reasonable doubt in some circumstances but not others. In my opinion the Supreme Court has made it quite clear that the inquiry in these cases is between elements of a crime and sentencing factors, acknowledging that elements of a crime can be mislabeled as sentencing factors. In Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000), the opening paragraph of that opinion makes this point very plain. In this case we once again decide whether words in a federal criminal statute create offense elements (determined by a jury) or sentencing factors (deter mined by a judge). See Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). The statute in question, 18 U.S.C. § 924(c) (1988 ed., supp. V), prohibits the use or carrying a “firearm” in relation to a crime of violence, and increases the penalty dramatically when the weapon used or carried is, for example, a “machinegun.” We conclude that the statute used the word “machinegun” (and similar words) to state an element of a separate offense. Id. at 121, 120 S.Ct. 2090. It is significant that Castillo, Jones and" }, { "docid": "22196539", "title": "", "text": "factors. The Court’s analysis in these cases looks to the structure of the statute in issue, the legislative history, and whether courts historically considered a particular fact during the sentencing phase. Compare Almendarez-Torres v. United States, 523 U.S. 224, 230, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (finding that recidivism’s typical status as a sentencing factor weighed against construing statute provision as creating a separate element of the crime rather than a sentencing factor) and Castillo v. United States, 120 S.Ct. at 2093-94 (use of a machine gun not a typical sentencing factor). In a footnote to Jones, the Court foreshadowed its eventual holding in Apprendi by noting that “under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt.” Jones, 526 U.S. at 227 n. 6, 119 S.Ct. 1215. The Supreme Court, however, then explicitly stated that its opinion “does not announce any new principle of constitutional law, but merely interprets a particular federal statute in light of a set of constitutional concerns that have emerged through a series of our decisions over the past quarter century.” Jones, 526 U.S. at 252 n. 11, 119 S.Ct. 1215. Given the clear congressional intent in § 841 and the uncertain mandate of Jones, we would have been hesitant to overturn our well-established precedent that the quantity of drugs is a sentencing factor and not an element of the offense. See United States v. Hare, 150 F.3d 419, 428 n. 2 (5th Cir.1998); United States v. Ruiz, 43 F.3d 985, 989 (5th Cir.1995). Apprendi compels us to take this step. In Apprendi, the Supreme Court overturned a sentencing scheme that allowed a state judge, by a preponderance of the evidence, to enhance a defendant’s penalty beyond the prescribed statutory maximum. Apprendi had been indicted on 23 counts, relating to four separate shootings and the unlawful possession of various firearms. As part of a" }, { "docid": "22458415", "title": "", "text": "above, there is no constitutional problem with using a juvenile delinquency adjudication to support a sentencing enhancement. But the majority suggests that the Supreme Court’s decisions in Almendarez-Toires, Jones, and Apprendi direct a different result than the one Williams demands. I disagree. Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) was a precursor to the Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348; see also Jones, 526 U.S. at 243 n. 6, 119 S.Ct. 1215. The “other than a fact of a prior conviction” language in Appren-di hearkens back to the Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Almendarez-Torres held that where a legislature crafts a penalty provision which simply authorizes a court to increase a sentence for a recidivist, the Constitution does not require the government to charge the fact of the prior conviction in the indictment. Id. at 226-227, 118 S.Ct. 1219. There, the Court examined whether a provision in an illegal re-entry statute, which raised the penalty for illegal re-entry from two to twenty (20) years based on recidivism, was a sentencing factor or an element of the crime. In concluding that it was a sentencing factor, the Court rejected the argument that, because the fact of recidivism increased the maximum penalty to which a defendant was exposed, Congress was constitutionally required to treat recidivism as an element of the crime that must be charged in an indictment and proved beyond a reasonable doubt. Id. at 239, 118 S.Ct. 1219; see also United States v. Pacheco-Zepeda, 234 F.3d 411, 413-14 (9th Cir.2001) (explaining that Almenda-rez-Torres “stands for the proposition that not every fact expanding a penalty range must be stated in a felony indictment, the precise holding" }, { "docid": "3656543", "title": "", "text": "States, 523 U.S. 224, 230, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (finding that recidivism’s typical status as a sentencing factor weighed against construing statute provision as creating a separate element of the crime rather than a sentencing factor); and Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 2093-94, 147 L.Ed.2d 94 (2000)(use of a machine gun not a typical sentencing factor). The defendant has since supplemented his petition and seeks to rely upon the Supreme Court’s recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Ap-prendi held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime, beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 2362-63. In Jones v. United States, Almendarez-Torres and Castillo, the Court’s analysis focused upon the structure of the statute in issue, the legislative history, and whether courts historically considered a particular fact during the sentencing phase. Ap-prendi extended the reasoning and analysis of these decisions based upon Constitutional principles: the Fifth and Fourteenth Amendments due process rights and the Sixth Amendment right to a jury trial. In Apprendi, the Supreme Court overturned a sentencing scheme that allowed a state judge to enhance a defendant’s penalty beyond the prescribed statutory maximum upon finding, by a preponderance of the evidence, that the defendant “acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation, or ethnicity,” Apprendi, 530 U.S. at —, 120 S.Ct. at 2351 (quoting N.J.S.A. § 2C:44-3(e)). The Supreme Court reversed, holding that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 2363-64. In United States v. Nordby, 225 F.3d 1053 (9th Cir.2000), the Ninth Circuit held that Apprendi applies to federal drug convictions such that any enhanced penalty based upon drug quantity under § 841(b) must be premised upon a factual finding beyond a reasonable" }, { "docid": "16179297", "title": "", "text": "cf. Apprendi v. v. United States, - U.S.-,-, 120 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000) (“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”). Additionally, subsections (i), (ii), and (iii) contain “many of the common indicia of sentencing] provisions.” Haggerty, 85 F.3d at 405. First, the subsections’ language plainly identifies them as sentencing provisions. See Jones, 526 U.S. at 232-34, 119 S.Ct. 1215; United States v. Grimaldo, 214 F.3d 967, 972-73 (8th Cir.2000); Haggerty, 85 F.3d at 405. Second, the subsec tions address “special features of the manner in which [the] basic crime was carried out (e.g., that the defendant ... brandished a gun)” — features which the United States Supreme Court recently identified as traditional sentencing factors. Castillo, — U.S. at-, 120 S.Ct. at 2094; accord, Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (construing statute as defining single crime with sentencing enhancements in part because “sentencing factor at issue ... is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence”); cf. Castillo, — U.S. at -, 120 S.Ct. at 2093 (holding earlier version of § 924(c)(1) defined separate criminal offenses based on type of firearm used, in part, because “we cannot say that courts have typically or traditionally used firearm types (such as ‘shotgun’ or ‘machinegun’) as sentencing factors, at least not in respect to an underlying ‘use or carry’ crime”). Third, the subsections are separated from the offense clause of the statute by the word “shall”— a frequent separator of offense-defining clauses from sentencing provisions. See Jones, 526 U.S. at 234, 119 S.Ct. 1215; see also Castillo, — U.S. at-, 120 S.Ct. at 2093 (statute structure that places elements of crime in single sentence followed by subsections referring directly to sentencing issues signals that “the basic job of the entire first sentence is the definition of crimes and the role of the remaining three is the description of factors ... that ordinarily pertain only" }, { "docid": "22355334", "title": "", "text": "decisions in Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000), Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), and Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), set forth the principles of statutory construction that should guide us in this ease. The majority nowhere explains why we should ignore the analyses in three recent High Court cases that directly address the very issue we face. The question is whether the statute “treat[s ] facts that lead to an increase in the maximum sentence as a sentencing factor” and is therefore unconstitutional. Castillo, 530 U.S. at 124, 120 S.Ct. 2090. In making this determination, the Court, by example, shows us that our task is first to examine the statute’s “literal language” and its “overall structure.” Id. Like 18 U.S.C. § 924, the statute at issue in Castillo, § 841’s structure clearly differentiates between the elements of the offense and factors to be considered at sentencing. In Castillo, the Court had no trouble in finding that the structure of § 924 “clarifie[d] any ambiguity” regarding congressional intent because “[t]he first part of the opening sentence clearly and indisputably establishes the elements of the basic federal offense,” while the next three sentences “refer directly to sentencing.” Id. at 125, 120 S.Ct. 2090. Similarly, § 841(a) “clearly and indisputably” establishes the elements of the offense, and § 841(b) refers directly to sentencing. This is why, as the majority acknowledges, prior to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), every circuit in the country treated drug quantity as a sentencing factor. See Maj. op. at 1178-79 & n. 2 (citing cases). Yet, the majority insists that § 841 is ambiguous because it does not specify that drug quantity is to be determined by the judge at sentencing. The majority, in fact, twists logic by concluding that the statute’s silence somehow means that “the text of the statute is dispositive” in support of its position. Id. at 1180. The text of" }, { "docid": "22135469", "title": "", "text": "if the subsection titles had been officially adopted by Congress, we would be wrong to ascribe to subsection (b)’s “Penalties” label the talismanic power to indicate that drug type and quantity are sentencing factors rather than elements of separate crimes. See Castillo v. United States, 530 U.S. 120, 125, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000) (noting that the mere fact that a statutory section is entitled “Penalties” does not indicate whether that section creates sentencing factors or entirely new crimes for “[t]he title alone does not tell us which are which”). Although § 841(a) is entitled “Unlawful Acts,” this subsection alone does not define a complete offense because it includes no punishment. A jury verdict finding only that the defendant had committed the acts described in subsection (a), without more, would not render the defendant guilty of a crime requiring any ascertainable punishment. Compare Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (construing 8 U.S.C. § 1326(b)(2) as a sentencing factor where an earlier portion of the statute— § 1326(a) — already provided for specific penalties), with Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (construing the provisions of 18 U.S.C. § 2119(2)-(3) as elements where the prefatory statutory text did not provide for penalties but only described prohibited conduct). Furthermore, the wide variation in penalties for the manufacture and distribution of different combinations of drug type and quantity counsels in favor of construing these factors as elements. In two recent cases, Jones and Castillo, the Supreme Court observed that the degree to which the commission of a proscribed act increases the maximum penalty reflects Congress’s intent to make the particular act an element or a sentencing factor. In Castillo, the Government argued that under 18 U.S.C. § 924(c), which prohibits the use or carrying of a firearm in relation to a crime of violence, the particular type of firearm used by the defendant was a sentencing factor for the judge to determine. In rejecting this argument, the Court deemed it important that the mandatory penalty for" }, { "docid": "3656541", "title": "", "text": "OPINION & ORDER MARSH, District Judge. On August 9, 1996, defendant/petitioner Mario Dion Pittman entered a guilty plea to a single count information charging him with distribution of cocaine base in violation of Title 21 U.S.C. § 841(a)(1). It is undisputed that neither the information nor the factual basis for the guilty plea made any reference to a specific drug quantity. However, the plea agreement and plea petition stated that the defendant would be subject to a statutory minimum sentence of 10 years, a maximum term of life and a $4,000,000 fine. At sentencing, the defendant challenged the application of a 2-level gun enhancement under USSG 2D1.1 and sought a downward departure on two grounds: (1) a claimed unfairness relative to the severity of treatment of crack versus powder cocaine; and (2) overstatement of his criminal history score under USSG § 4A1.3. I accepted the defendant’s objection to the gun enhancement, rejected his challenge to the severity of Congress’ treatment of crack cocaine, and granted his request for a downward departure based upon the overstatement of his criminal history score. In so holding, I reduced defendant’s criminal history category one level from a VI to a V and sentenced him to 140 months, the low end of the sentencing range. Defendant now seeks habeas corpus relief pursuant to 28 U.S.C. § 2255 claiming that his conviction and/or sentence should be set aside because the information failed to recite drug quantity and on grounds that his guilty plea was neither knowing nor voluntary since he was unaware of the fact that the government should carry the burden of proving drug quantity beyond a reasonable doubt. His initial petition was premised upon the Supreme Court’s decision in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). In Jones, the Court held that higher statutory penalties found within the federal carjacking statute, 18 U.S.C. § 2119, set forth additional elements of an offense which must be alleged in an indictment and proven beyond a reasonable doubt. Jones, 526 U.S. at 232-39, 119 S.Ct. 1215. Compare Almendarez-Torres v. United" }, { "docid": "22355305", "title": "", "text": "crime and sentencing factors, acknowledging that elements of a crime can be mislabeled as sentencing factors. In Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000), the opening paragraph of that opinion makes this point very plain. In this case we once again decide whether words in a federal criminal statute create offense elements (determined by a jury) or sentencing factors (deter mined by a judge). See Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). The statute in question, 18 U.S.C. § 924(c) (1988 ed., supp. V), prohibits the use or carrying a “firearm” in relation to a crime of violence, and increases the penalty dramatically when the weapon used or carried is, for example, a “machinegun.” We conclude that the statute used the word “machinegun” (and similar words) to state an element of a separate offense. Id. at 121, 120 S.Ct. 2090. It is significant that Castillo, Jones and Almendarez-Tor-res were all cases dealing with the interpretation of federal criminal statutes. In each of these cases the distinction was between an element of a crime and a sentencing factor, not the creation of a new category for criminal enforcement of a “sentencing factor to be proven to a jury.” The Supreme Court stated in Jones, 526 U.S. at 232, 119 S.Ct. 1215, Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt.... While we think the fairest reading of Section 2119 treats the fact of serious bodily harm as an element, not a mere enhancement, we recognize the possibility of the other view. Any doubt that might be prompted by the arguments for that other reading should, however, be resolved against it under the rule, repeatedly affirmed, that “where a statute is susceptible of two constructions, by one of which grave and constitutional" }, { "docid": "22135482", "title": "", "text": "this question is “no,” please answer the following question: —-Do you unanimously agree, by proof beyond a reasonable doubt, that the quantity of cocaine base (“crack”) which was distributed was five (5) grams or more? __ Yes _ No JURY FOREPERSON . In Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), a case that preceded Jones and Castillo, the Supreme Court construed a provision of immigration law that increased the maximum prison term for a deported alien who has illegally reentered the country from two to twenty years if his initial deportation was subsequent to an aggravated felony conviction. Despite the tenfold increase in maximum prison time, the Court construed the provision as a sentencing factor rather than an element in large part because recidivism \"is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender's sentence.” Id. at 243, 118 S.Ct. 1219. The Court again limited the breadth of this holding a year later in Jones when it noted that Almendarez-Torres \"rested in substantial part on the tradition of regarding recidivism as a sentencing factor, not as_ an element....” 526 U.S. at 249, 119 S.Ct. 1215. The Court’s refusal to consider prior conviction an element in Almendarez-Torres despite the tenfold increase in penalty, therefore, ought not to be considered in tension with its approach to statutory construction in Jones and Castillo, for, as the Court subsequently made clear in Apprendi, sentence enhancements for prior conviction are sui generis. See Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 (announcing the Apprendi rule as applying to \"any fact that increases the penalty beyond the prescribed statutory maximum” except \"the fact of a prior conviction”). . Moreover, it seems to me that the kind of scenario feared by Justice Breyer is often intrinsic to criminal statutes in which penalties vary according to different elements. In Castillo, the Court concluded that the type of weapon used in violation of 18 U.S.C. § 924(c), which prohibits the use or carrying of a \"firearm” in relation to a crime of violence, was an element" }, { "docid": "16179296", "title": "", "text": "403, 405 (8th Cir.1996) (interpreting federal deported alien reentry statute). As an initial matter, both § 924(c)(1)(A)’s plain language and structure show Congress intended brandishing to be a sentencing factor and not an element of the § 924(c)(1)(A) offense. The first clause of § 924(c)(1)(A), standing alone, defines the offense of using or carrying a firearm during a crime of violence while subsections (i), (ii), and (iii) do “no more than single out subsets of those persons [who carry or use firearms during crimes of violence] for more severe punishment,” Haggerty, 85 F.3d at 405; accord Jones, 526 U.S. at 232-34, 119 S.Ct. 1215, and, in fact, “neither alter[ ] the maximum penalty for the crime committed nor create[ ] a separate offense calling for a separate penalty [but] operate! ] solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it,” McMillan v. Pennsylvania, 477 U.S. 79, 87-88, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (statute with this net effect defined single offense with multiple sentencing enhancements); cf. Apprendi v. v. United States, - U.S.-,-, 120 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000) (“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”). Additionally, subsections (i), (ii), and (iii) contain “many of the common indicia of sentencing] provisions.” Haggerty, 85 F.3d at 405. First, the subsections’ language plainly identifies them as sentencing provisions. See Jones, 526 U.S. at 232-34, 119 S.Ct. 1215; United States v. Grimaldo, 214 F.3d 967, 972-73 (8th Cir.2000); Haggerty, 85 F.3d at 405. Second, the subsec tions address “special features of the manner in which [the] basic crime was carried out (e.g., that the defendant ... brandished a gun)” — features which the United States Supreme Court recently identified as traditional sentencing factors. Castillo, — U.S. at-, 120 S.Ct. at 2094; accord, Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (construing statute as defining single crime with sentencing enhancements in part because “sentencing factor" }, { "docid": "23565489", "title": "", "text": "the question. Cf., e.g., Jones, 526 U.S. at 232, 119 S.Ct. 1215 (in construing 18 U.S.C. § 2119, the Court reasoned that “[m]uch turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt”). Indeed, in two cases decided shortly before Apprendi, the Supreme Court’s statutory analysis focused on determining legislative intent. See, e.g., Castillo v. United States, 530 U.S. 120, 123, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000) (identifying the question presented as “whether Congress intended the statutory references to particular firearm types in [18 U.S.C.] § 924(c)(1) to define a separate crime or simply to authorize an enhanced penalty”); Jones, 526 U.S. at 232-40, 119 S.Ct. 1215 (examining statute’s structure and history, as well as similar statutes passed by Congress, in order to determine congressional intent on whether factor was element of offense or sentencing consideration); see also Almendarez-Torres, 523 U.S. at 228, 118 S.Ct. 1219 (stating that the question of which factors are elements of an offense and which are sentencing factors is “normally a matter for Congress,” and, accordingly, looking to the statute and to congressional intent to analyze the statute). Apprendi seems to eschew the distinction between sentencing factors and elements in favor of its “relevant inquiry” of the effect of the factor; the Court, however, did not go as far as to abolish the distinction. See Ap-prendi, 530 U.S. at 494, 120 S.Ct. 2348. Moreover, even if the sentencing factor versus element distinction is not disposi-tive, § 841 violates the constitutional requirement set forth in Apprendi that a fact, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum must be submitted to the jury and proven beyond a reasonable doubt. Id. at 490, 120 S.Ct. 2348. Nor do we think there is a middle road, by which drug quantity is sometimes an element of the offense that must be proven to the jury beyond a reasonable doubt, and" }, { "docid": "3656542", "title": "", "text": "of his criminal history score. In so holding, I reduced defendant’s criminal history category one level from a VI to a V and sentenced him to 140 months, the low end of the sentencing range. Defendant now seeks habeas corpus relief pursuant to 28 U.S.C. § 2255 claiming that his conviction and/or sentence should be set aside because the information failed to recite drug quantity and on grounds that his guilty plea was neither knowing nor voluntary since he was unaware of the fact that the government should carry the burden of proving drug quantity beyond a reasonable doubt. His initial petition was premised upon the Supreme Court’s decision in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). In Jones, the Court held that higher statutory penalties found within the federal carjacking statute, 18 U.S.C. § 2119, set forth additional elements of an offense which must be alleged in an indictment and proven beyond a reasonable doubt. Jones, 526 U.S. at 232-39, 119 S.Ct. 1215. Compare Almendarez-Torres v. United States, 523 U.S. 224, 230, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (finding that recidivism’s typical status as a sentencing factor weighed against construing statute provision as creating a separate element of the crime rather than a sentencing factor); and Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 2093-94, 147 L.Ed.2d 94 (2000)(use of a machine gun not a typical sentencing factor). The defendant has since supplemented his petition and seeks to rely upon the Supreme Court’s recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Ap-prendi held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime, beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 2362-63. In Jones v. United States, Almendarez-Torres and Castillo, the Court’s analysis focused upon the structure of the statute in issue, the legislative history, and whether courts historically considered a particular fact during the sentencing phase. Ap-prendi extended the reasoning" }, { "docid": "6043206", "title": "", "text": "felony convictions. Therefore, he claimed that he could not be sentenced to more than two years imprisonment, which was the sentence applicable for one convicted of the same crime without the underlying previous convictions. See 8 U.S.C. § 1326(a) (describing the substantive offense and authorizing a sentence of up to two years imprisonment). The Fifth Circuit rejected this argument. United States v. Almendarez-Torres, 113 F.3d 515 (5th Cir.1996). The Supreme Court granted certiorari to resolve a conflict between the prevailing view of the circuit courts represented by the Fifth Circuit and a contrary position taken by the Ninth Circuit in United States v. Gonzalez-Medina, 976 F.2d 570 (9th Cir.1992) (holding that subsection (b)(2) constituted an offense distinct from that in subsection (a)). The Supreme Court affirmed the Fifth Circuit, holding “that Congress intended to set forth a sentencing factor in subsection (b)(2) and not a separate criminal offense.” Almendarez-Torres, 523 U.S. at 235, 118 S.Ct. 1219. More generally, the Court made clear that it found recidivism statutes “as typical a sentencing factor as one might imagine.” Id. at 230, 118 S.Ct. 1219. “Consequently, neither the statute nor the Constitution requirefd] the Government to charge the factor that it mentions, an earlier conviction, in the indictment.” Id. at 226-27, 118 S.Ct. 1219. Only one year later, in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the Court addressed provisions of a carjacking statute that established higher penalties to be imposed when death or serious bodily harm occurred. See 18 U.S.C. § 2119. In Jones, the Court held “the fairest reading of § 2119 treats the fact of serious bodily harm as an element, not a mere enhancement,” relating to the substantive offense of carjacking. Jones, 526 U.S. at 239, 119 S.Ct. 1215. While the holding in Jones appears to lend support to Campbell’s argument, the Jones Court explicitly distinguished Almendarez-Torres with respect to recidivism statutes. Id. at 235, 118 S.Ct. 1219 (noting that Almendarez-Torres stressed the “history of treating recidivism as a sentencing factor” and the absence of any statute clearly making prior convictions offense" }, { "docid": "3509391", "title": "", "text": "more ... that, by its nature, involves a substantial risk that physical force against the person of another may be used in the course of committing the offense.” 18 U.S.C. § 3559(c)(2)(F). . In his reply brief, Gray appears to argue that the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) requires a different result. Apprendi holds that \"[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. at 2362-63. Nothing in Apprendi concerns the proper allocation of the burden of proof for an affirmative defense to a federal sentencing enhancement statute. Cf. Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (rejecting argument that, because the fact of recidivism increased the maximum penally to which a defendant was exposed, Congress was constitutionally required to treat recidivism as an element of the crime that must be charged in the indictment and proven beyond a reasonable doubt); cf. also Jones v. United States, 526 U.S. 227, 248, 119 S.Ct. 1215, 1226-27, 143 L.Ed.2d 311 (1999) (explaining that Almendarez-Torres \"stands for the proposition that not every fact expanding a penalty range must be stated in a felony indictment, the precise holding being that recidivism increasing the maximum penalty need not be so charged.”). . Gray does not challenge the district court's finding that he did brandish a firearm during the robbery. . Gray relies heavily on Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000). In that case, the Court . found that a provision in an earlier version of § 924(c), which increased the minimum penalty based on the type of firearm involved in the underlying crime, was an element of the § 924(c) offense rather than merely a sentencing factor. Castillo, however, pre-dated this Court's opinion in Pounds. And while Pounds does not expressly discuss Castillo, other courts addressing Gray's position" } ]

[ { "docid": "14738107", "title": "", "text": "is presumed to speak the truth. But this presumption may be outweighed by the manner in which the witness testifies, by the character of the testimony given, or by contradictory evidence.” The later version reads: “You, as jurors, are the sole judges of the credibility of the witnesses and the weight their testimony deserves. Ordinarily, it is assumed that a witness will speak the truth. But this assumption may be dispelled by the appearance and conduct of the witness, or by the manner in which the witness testifies, or by the character of the testimony given, or by evidence to the contrary of the testimony given.” . A juror is likely to consider an assumption and a presumption synonymous. See-State v. Berlovich, 220 Iowa 1288, 1294-1295, 263 N.W. 853, 856 (1935). . Of course, a jury may be told to consider the fact that a witness testified under oath in evaluating his testimony. . See United States v. Bilotti, 380 F.2d 649, 65-U656 (2 Cir.), cert. denied, 389 U.S. 944, 88 S.Ct. 308, 19 L.Ed.2d 300 (1967) ; Stone v. United States, 379 F.2d 146 (D.C.Cir. 1967) ; Knapp v. United States, 316 F.2d 794 (5 Cir. 1963). See also Harrison v. United States, 387 F.2d 614 (5 Cir. 1968) ; United States v. Dichiarinte, 385 F.2d 333, 339 (7 Cir. 1967); United States v. Persico, 349 F.2d 6, 10-12 (2 Cir. 1965). . There are minor variances between the court’s charge as reported in the transcript and the recommended form. See Mathes & Devitt, supra, note 1, § 9.01, pp. 11-12. . It does not appear whether an objection was made in Meisch and since the judgment was reversed and a new trial ordered on other grounds it was not necessary for the court to consider whether the instruction constituted plain error. . See United States v. Schanerman, 150 F.2d 941, 943 (3 Cir. 1945). . The request was: “Your Honor, I believe in the charge that the testimony of a co-conspirator should be given very careful scrutiny.” “The Court: Co-Conspirator or co-perpetrator? I think I can find it" } ]

[ { "docid": "22610197", "title": "", "text": "and explicitly about the presumption of innocence and the State’s duty to prove guilt beyond a reasonable doubt. Whatever tangential undercutting of these clearly stated propositions may, as a theoretical matter, have resulted from the giving of the instruction on the presumption of truthfulness is not of constitutional dimension. The giving of that instruction, whether judged in terms of the reasonable-doubt requirement in In re Winship, supra, or of offense against “some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U. S. 97, 105 (1934), did not render the conviction constitutionally invalid. Reversed. The judge also instructed the jury that respondent did not have to testify and that the jury was to draw no inference of guilt from his failure to do so. Alternatively, the District Court held that assuming there had been error of constitutional proportions in the charge, the error was harmless in view of the overwhelming evidence of guilt. Harrington v. California, 395 U. S. 250 (1969). The Court of Appeals, without detailing its reasoning, disagreed, stating that the State had not met its burden of showing that the error was harmless. In view of our disposition of this case, we do not reach that issue. 476 F. 2d 845, 846 (1972). The court then denied a petition for rehearing by an equally divided vote. The court cited nine cases from various federal courts of appeals, all of which had expressed disapproval of the presumption-of-truthfulness instruction. See United States v. Birmingham, 447 F. 2d 1313 (CA10 1971); United States v. Stroble, 431 F. 2d 1273 (CA6 1970); McMillen v. United States, 386 F. 2d 29 (CA1 1967), cert. denied, 390 U. S. 1031 (1968); United States v. Dichiarinte, 385 F. 2d 333 (CA7 1967); United States v. Johnson, 371 F. 2d 800 (CA3 1967); United States v. Persico, 349 F. 2d 6 (CA2 1965). See also United States v. Safley, 408 F. 2d 603 (CA4 1969); Harrison v. United States, 387 F. 2d 614 (CA5 1968); Stone v. United States, 126 U." }, { "docid": "320014", "title": "", "text": "States v. Pincione, 565 F.2d 404, 405 (6th Cir.1977); United States v. Gray, 464 F.2d 632, 638-39 (8th Cir. 1972); United States v. Birmingham, 447 F.2d 1313, 1315-16 (10th Cir.1971); United States v. Boone, 401 F.2d 659, 661, 662 (3rd Cir.1968), cert, denied sub nom., Jackson v. United States, 394 U.S. 933, 89 S.Ct. 1205, 22 L.Ed.2d 463 (1969); McMillen v. United States, 386 F.2d 29, 35-36 (1st Cir. 1967), cert, denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288 (1968); United States v. Bilotti, 380 F.2d 649, 656 (2d Cir.), cert, denied, 389 U.S. 944, 88 S.Ct. 308, 19 L.Ed.2d 300 (1967). However, upon close inspection of the precedent in this circuit , and after careful consideration, we do not think that instruction No. 26 is a “presumption of truth” instruction. In effect the jury was told that if there were irreconcilable conflicts in the evidence, then it was up to the jury to decide who to believe. Thus, the instruction left the determination of witness credibility to the jury and there was no presumption of truthfulness charge to the jury. b. The instruction on character evidence. At trial the defendant presented two witnesses who testified regarding his honesty, integrity, and good character in general. During the conference on' jury instructions, the defendant’s attorney requested that the court’s proposed instruction on this evidence be changed to conform to this circuit’s pattern jury instruction No. 3.15. The trial judge agreed to make the change but, by what we must assume was oversight, failed to do so. The defendant argues that the trial court’s failure to make the proposed change violated Fed.R.Crim.P. 30, which requires the court to inform counsel of its proposed action prior to closing argument, and denegrated the importance of his character evidence so seriously that reversal is required. We disagree. As we have noted recently, technical violations of Rule 30 require reversal only where the defendant can show actual prejudice. United States v. Baker, 722 F.2d 343, 346 (7th Cir.1983), cert, denied, — U.S. -, 104 S.Ct. 1312, 79 L.Ed.2d 709 (1984). The defendant has not" }, { "docid": "3848949", "title": "", "text": "v. United States, 357 F.2d 438, 441 (5th Cir. 1966). As part of the original instructions to the jury, the District Court made the following statement: Every witness is presumed to speak the truth; however, if you find the presumption of truthfulness to be outweighed as to any witness, you will give the testimony of that witness such credibility, if any, as you may think it deserves. On previous occasions this Court has condemned the use of similar instructions in the exercise of our supervisory powers. United States v. Maselli, 534 F.2d 1197, 1202-03 (6th Cir. 1976); United States v. Stroble, 431 F.2d 1273, 1278 (6th Cir. 1970). See also United States v. Griffin, 382 F.2d 823, 827 (6th Cir. 1967). In those cases, however, we held that the giving of the instruction is not, in the absence of an objection, plain error so as to require reversal in all cases. United States v. Maselli, 534 F.2d at 1203; United States v. Stroble, 431 F.2d at 1278. See also United States v. Griffin, 382 F.2d at 828. No specific objection was entered by defense counsel to the presumption-of-truthfulness instruction. In Cupp v. Naughten, 414 U.S. at 149, 94 S.Ct. 396, the Supreme Court held that the giving of a presumption-of-truthfulness instruction in a state criminal proceeding was not a per se violation of due process. The Supreme Court noted that the circuit courts which have criticized the use of such an instruction did so in the exercise of their supervisory powers and not as a matter of constitutional law. Id. at 145-46, 94 S.Ct. 396. In determining the effect of the instruction on the defendant’s conviction, the Supreme Court cautioned that the instruction should be judged in the context of the overall charge. Id. at 147, 94 S.Ct. 396. In upholding the instruction in Cupp, the Supreme Court commented that the presumption-of-truthfulness instruction came in the midst of the general charge on credibility where the jury was informed of various criteria for judging the credibility of witnesses. Id. at 149, 94 S.Ct. 396. In this case, the presumption-of-truthfulness instruction was" }, { "docid": "320030", "title": "", "text": "v. Quinn, 398 F.2d 298, 303 (7th Cir.), cert, denied, 393 U.S. 983, 89 S.Ct. 451, 21 L.Ed.2d 444 (1968), the trial court gave the following instruction: If you find the assumption of truthfulness with respect to all witnesses who are sworn to be outweighed as to any witness, then you will give the testimony of that witness such credibility if any, as you think it deserves. (Emphasis added.) Finally, in United States v. Dichiarinte, 385 F.2d 333, 339 (7th Cir. 1967), cert, denied sub nom., Mastro v. United States, 390 U.S. 945, 88 S.Ct. 1029, 19 L.Ed.2d 1133 (1968), the trial court gave the following instruction: Every witness is presumed to speak the truth, but the presumption may be outweighed by the manner in which [the witness] testifies, by the character of the witness, that is, by the character of the testimony given or by contradictory evidence____ If you find the presumption of truthfulness to be outweighed as to any witness, then you will give the testimony of that witness such credibility, if any, as you think it deserves. (Emphasis added.) As the emphases indicate, the fault in these instructions was the language pertaining directly to an assumption or a presumption. That language does not appear in the instruction before us. Further, we note that, while this court disapproved of the instructions given in these cases, the instructions were not sufficient bases for reversal. . The instruction, as given, with the defendant’s proposed change in brackets, is as follows: You have heard the testimony of Thomas Boissey and Kenneth Warmack, both of whom said that the defendant has a good reputation for honesty, integrity and truthfulness in the community where, he lives and works. Along with all the other evidence you have heard, you may [should] take into consideration what you believe about the defendant’s honesty, integrity, and truthfulness when you decide whether the government has proved, beyond a reasonable doubt, that the defendant committed the crime. Evidence of the defendant's honesty, integrity and truthfulness alone may create a reasonable doubt whether the government proved that the defendant committed" }, { "docid": "17981137", "title": "", "text": "ELY, Circuit Judge: Naughten is an Oregon state prisoner, convicted of the offense of armed robbery. His direct appeal in the Oregon state courts was unsuccessful. State v. Naughten, 90 Adv.Or. 1811, 471 P.2d 830 (App. 1970). Eventually, Naughten filed a petition for habeas corpus in the court below, and he now appeals from the denial of that petition. In the state court trial, the judge, over Naughten’s objection, instructed the jury as follows: “Every witness is presumed to speak the truth. This presumption may be overcome by the manner in which the witness testifies, by the nature of his or her testimony, by evidence affecting his or her character, interest, or motives, by contradictory evidence, or by a presumption.” Such an instruction has been almost universally condemned. See United States v. Birmingham, 447 F.2d 1313 (10th Cir. 1971); United States v. Stroble, 431 F. 2d 1273 (6th Cir. 1970); McMillen v. United States, 386 F.2d 29 (1st Cir. 1967), cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288; United States v. Dichiarinte, 385 F.2d 333 (7th Cir. 1967); United States v. Johnson, 371 F.2d 800 (3d Cir. 1967); United States v. Persico, 349 F.2d 6 (2d Cir. 1965). See also United States v. Safley, 408 F.2d 603 (4th Cir. 1969); Harrison v. United States, 387 F.2d 614 (5th Cir. 1968); Stone v. United States, 126 U.S.App.D.C. 369, 379 F.2d 146 (1967). In Stone v. United States, supra, Judge, now Chief Justice, Burger, wrote: “[This instruction] has a tendency to impinge on the presumption of innocence. Lurking in such an instruction is the risk that the jury might conclude that they were required to accept the testimony of the prosecution’s witnesses at face value, particularly when it is not contradicted by other witnesses.” 379 F.2d at 147. In the state court trial, Naughten did not testify, nor did he present any witnesses in his defense. Thus, the clear effect of the challenged instruction was to place the burden on Naughten to prove his innocence. This is so repugnant to the American concept that it is offensive to any" }, { "docid": "22610198", "title": "", "text": "The Court of Appeals, without detailing its reasoning, disagreed, stating that the State had not met its burden of showing that the error was harmless. In view of our disposition of this case, we do not reach that issue. 476 F. 2d 845, 846 (1972). The court then denied a petition for rehearing by an equally divided vote. The court cited nine cases from various federal courts of appeals, all of which had expressed disapproval of the presumption-of-truthfulness instruction. See United States v. Birmingham, 447 F. 2d 1313 (CA10 1971); United States v. Stroble, 431 F. 2d 1273 (CA6 1970); McMillen v. United States, 386 F. 2d 29 (CA1 1967), cert. denied, 390 U. S. 1031 (1968); United States v. Dichiarinte, 385 F. 2d 333 (CA7 1967); United States v. Johnson, 371 F. 2d 800 (CA3 1967); United States v. Persico, 349 F. 2d 6 (CA2 1965). See also United States v. Safley, 408 F. 2d 603 (CA4 1969); Harrison v. United States, 387 F. 2d 614 (CA5 1968); Stone v. United States, 126 U. S. App. D. C. 369, 379 F. 2d 146 (1967) (Burger, J.). None of these cases, however, dealt with review of a state court proceeding. Judge Mathes’ original instruction was modified in W. Mathes & E. Devitt, Federal Jury Practice and Instructions § 9.01 (1965), and is not included in E. Devitt & C. Blackmar, Federal Jury Practice and Instructions (2d ed. 1970). See id., vol. 1, § 12.01, and accompanying note. See, e. g., United States v. Johnson, supra, at 804; United States v. Stroble, supra, at 1278; United States v. Dichiarinte, supra, at 339; Stone v. United States, supra, at 370, 379 F. 2d at 147. See, e. g., United States v. Meisch, 370 F. 2d 768, 774 (CA3 1966); United States v. Birmingham, supra, at 1315. See, e. g., United States v. Stroble, supra; United States v. Birmingham, supra. See, e. g., United States v. Birmingham, supra. However, the instruction given in Birmingham was somewhat different from the instruction given here. The jury there was told that the presump tion of truthfulness" }, { "docid": "3848948", "title": "", "text": "conscientious conviction he or she may have as to the weight or effect of evidence.” Compare United States v. Harris, 391 F.2d at 356. Nor do we find that there was any insult or threat implied in the Court’s reference to the possibility of retrial before another jury, as Appellants contend. On the contrary, the tenor of the remarks was complimentary and supportive of the jury’s efforts to reach a verdict. Appellant Cisternino claims that the Court’s praise concerning both sides’ presentation of evidence was, in actuality, “a thinly-veiled and insidious comment on his failure to testify.” We do not accept that interpretation. We find no indication in the record that the language used by the Court was intended as a comment on Cisternino’s failure to testify or that a jury would naturally assume it to be so. See United States v. Sawyers, 423 F.2d 1335, 1340-41 (4th Cir. 1970). See also United States v. Yamashita, 527 F.2d 954, 956 (9th Cir. 1975); United States v. Banks, 426 F.2d 292, 293 (6th Cir. 1970); Davis v. United States, 357 F.2d 438, 441 (5th Cir. 1966). As part of the original instructions to the jury, the District Court made the following statement: Every witness is presumed to speak the truth; however, if you find the presumption of truthfulness to be outweighed as to any witness, you will give the testimony of that witness such credibility, if any, as you may think it deserves. On previous occasions this Court has condemned the use of similar instructions in the exercise of our supervisory powers. United States v. Maselli, 534 F.2d 1197, 1202-03 (6th Cir. 1976); United States v. Stroble, 431 F.2d 1273, 1278 (6th Cir. 1970). See also United States v. Griffin, 382 F.2d 823, 827 (6th Cir. 1967). In those cases, however, we held that the giving of the instruction is not, in the absence of an objection, plain error so as to require reversal in all cases. United States v. Maselli, 534 F.2d at 1203; United States v. Stroble, 431 F.2d at 1278. See also United States v. Griffin, 382 F.2d" }, { "docid": "12835543", "title": "", "text": "given, without objection, what apparently was a “boilerplate” charge as follows: If you find the presumption of truthfulness to be outweighed as to any witness, you can do one of two things —you can reject all of that witness’ testimony on the ground that it was all tainted by falsehood and that none of it is worthy of belief or you can accept that part which you believe' to be credible and reject only that part which you believe to be tainted by falsehood. It would seem indeed that six years after United States v. Bilotti, 380 F.2d 649, 655-656 (2 Cir.), cert. denied, 389 U.S. 944, 88 S.Ct. 308, 19 L.Ed.2d 300 (1967), and eight years after the objectionable form had been changed, see Mathes and Devitt, Federal Jury Practice and Instructions No. 72.01 (1965), references to a “presumption” of truthfulness would have disappeared from charges in this circuit. Here, however, the judge did not repeat the most objectionable part of the charge condemned in Bilotti, namely, the affirmative statement, “In our law there is a presumption that unless and until determined by you to be outweighed by the evidence to the contrary, a witness speaks the truth.” He simply made a backhanded reference to such a presumption and told the jury what it might do if it found this to be outweighed. Moreover, the judge had given another entirely correct instruction on how the jury should go about determining credibility. Under such circumstances the charge was surely not plain error; it is absurd to suppose the jury was misled simply by the judge’s having said “presumption” rather than “assumption.” See Knapp v. United States, 316 F.2d 794 (5 Cir. 1963). However, we again remind trial judges of Judge Anderson’s admonition with respect to this instruction in United States v. Bilotti, supra, 380 F.2d at 656, that it “may in some cases be very misleading and the trial courts would best refrain from using it.” In addition, we find it difficult to visualize a case where even the remodeled instruction serves any purpose not met by the general instruction" }, { "docid": "22610208", "title": "", "text": "of presumption-of-truthfulness instructions and have often expressed their objections in terms of constitutional values. See McMillen v. United States, 386 F. 2d 29 (CA1 1967); United States v. Bilotti, 380 F. 2d 649 (CA2 1967); United States v. Evans, 398 F. 2d 159 (CA3 1968); United States v. Safley, 408 F. 2d 603 (CA4 1969); United States v. Reid, 469 F. 2d 1094 (CA5 1972); United States v. Stroble, 431 F. 2d 1273 (CA6 1970); United States v. Dichiarinte, 385 F. 2d 333 (CA7 1967); United States v. Gray, 464 F. 2d 632 (CA8 1972); the instant case, Naughten v. Cupp, 476 F. 2d 845 (CA9 1972); United States v. Birmingham, 447 F. 2d 1313 (CA10 1971); Stone v. United States, 126 U. S. App. D. C. 369, 379 F. 2d 146 (1967). But the courts have been particularly concerned about the impact that such instructions might have when the defendant has not offered testimony. See United States v. Safley, supra, at 605; United States v. Boone, 401 F. 2d 659, 661 (CA3 1968); United States v. Evans, supra, at 162; United States v. Dichiarinte, supra, at 339; Stone v. United States, supra, at 370, 379 F. 2d, at 147; United States v. Johnson, 371 F. 2d 800, 805 (CA3 1967); United States v. Meisch, 370 F. 2d 768, 774 (CA3 1966). However, even in a situation where the defendant has introduced rebuttal testimony, the impact of the presumption on the parties will be imponderable and not necessarily equal. See McMillen v. United States, supra, at 33. The origins of the presumption that witnesses will testify truthfully appear to extend back at least into the 19th century, see ante, at 144-145, when it was a widely held belief that a willful violation of the oath would expose the witness “at once to temporal and to eternal punishment.” T. Starkie, Law of Evidence 29 (10th Am. ed. 1876). In addition, at that time many of the common-law rules of incompetency were applied to disqualify individuals from testifying for reasons which today would merely be grounds for impeachment. See generally 9 W." }, { "docid": "23347486", "title": "", "text": "and (d) the failure to instruct the jury to return a special verdict. 5(a). There is no question but that the “view with caution” instruction is usually given in a case of this kind. Mathes & Devitt, Federal Jury Practice and Instruction § 904. It is true that some courts have held that it is reversible error not to give such an instruction even when not requested, when the evidence was weak —Williamson v. United States, 332 F.2d 123 (5th Cir. 1964); or, when it is requested, is correct, is not covered elsewhere, and is on such a vital point that failure to give it deprived defendant of a defense and seriously impaired its effective presentation, Phelps v. United States, 252 F.2d 49 (5th Cir. 1958); or, when requested as to an informer’s testimony, Fletcher v. United States, 81 U. S.App.D.C. 306, 158 F.2d 321 (1946). It is also true that two circuits have found that a failure to so instruct is plain error, regardless of whether it has been requested under exceptional circumstances. Williamson v. United States, supra; McMillen v. United States, 386 F.2d 29 (1st Cir. 1967). It is likewise undisputed that here no such an instruction was requested by defendant’s counsel — and that after all instructions were given no objection was raised by the defendant’s counsel to the instructions as given. (R.T. 2574). It is also undisputed that in this circuit, the uncorroborated testimony of an accomplice is sufficient to sustain a conviction, Williams v. United States, 308 F.2d 664 (9th Cir. 1962), and that the testimony of one witness, if believed, is sufficient to prove a fact. Proffit v. United States, 316 F.2d 705 (9th Cir. 1963). The majority of circuits, including our own, have not yet held that the failure to instruct that the testimony of an accomplice is to be viewed with caution is, per se, plain error. As in so many other areas, we believe a case by case approach is required. While the frequently used Mathes & Devitt 9.04 Instruction was not given, the jury was not left totally without aid." }, { "docid": "22610199", "title": "", "text": "S. App. D. C. 369, 379 F. 2d 146 (1967) (Burger, J.). None of these cases, however, dealt with review of a state court proceeding. Judge Mathes’ original instruction was modified in W. Mathes & E. Devitt, Federal Jury Practice and Instructions § 9.01 (1965), and is not included in E. Devitt & C. Blackmar, Federal Jury Practice and Instructions (2d ed. 1970). See id., vol. 1, § 12.01, and accompanying note. See, e. g., United States v. Johnson, supra, at 804; United States v. Stroble, supra, at 1278; United States v. Dichiarinte, supra, at 339; Stone v. United States, supra, at 370, 379 F. 2d at 147. See, e. g., United States v. Meisch, 370 F. 2d 768, 774 (CA3 1966); United States v. Birmingham, supra, at 1315. See, e. g., United States v. Stroble, supra; United States v. Birmingham, supra. See, e. g., United States v. Birmingham, supra. However, the instruction given in Birmingham was somewhat different from the instruction given here. The jury there was told that the presump tion of truthfulness controlled “[u]nless and until outweighed by evidence to the contrary.” 447 F. 2d, at 1315. Apparently no additional instruction was given regarding consideration of the manner or nature of the witnesses’ testimony or of the witnesses’ possible motivations to speak falsely. See also Johnson, supra. Mr. Justice Brennan, with whom Mr. Justice Douglas and Mr. Justice Marshall join, dissenting. Respondent was found guilty of armed robbery and assault, after the jury had been charged, in pertinent part, as follows: “The law provides for certain disputable presumptions which are to be considered as evidence. “A presumption is a deduction which the law expressly directs to be made from particular facts and is to be considered by you along with the other evidence. However, since these presumptions are disputable presumptions only, they may be out-weighed or equaled by other evidence. Unless out-weighed or equaled, however, they are to be accepted by you as true. “The law presumes that the defendant is innocent, and this presumption follows the defendant until guilt is proved beyond a reasonable doubt. “Every" }, { "docid": "23347487", "title": "", "text": "v. United States, supra; McMillen v. United States, 386 F.2d 29 (1st Cir. 1967). It is likewise undisputed that here no such an instruction was requested by defendant’s counsel — and that after all instructions were given no objection was raised by the defendant’s counsel to the instructions as given. (R.T. 2574). It is also undisputed that in this circuit, the uncorroborated testimony of an accomplice is sufficient to sustain a conviction, Williams v. United States, 308 F.2d 664 (9th Cir. 1962), and that the testimony of one witness, if believed, is sufficient to prove a fact. Proffit v. United States, 316 F.2d 705 (9th Cir. 1963). The majority of circuits, including our own, have not yet held that the failure to instruct that the testimony of an accomplice is to be viewed with caution is, per se, plain error. As in so many other areas, we believe a case by case approach is required. While the frequently used Mathes & Devitt 9.04 Instruction was not given, the jury was not left totally without aid. It was instructed as appears in the margin. The suggestion that the jury should pass on the evidence before them — “disregard [ing] the testimony of Temple, let’s assume that Edward Temple here is not worthy of [belief as to] his truth, you must determine whether or not the things that he did testify to are corroborated by other circumstances and incidents that can’t be changed, such as a person’s [testimony] can.” (R.T. 2570.) We agree with the Government that while the instruction did not characterize Temple with the shibboleth word “accomplice,” it did, forcefully, direct the jury to closely and carefully scrutinize his testimony, because of his own close connection with the case. In essence, then, we think it fair to state the jury was instructed to weigh Temple’s testimony with great care. In addition to the fact that a closely similar instruction was given, we hold that other evidence here introduced did corroborate the testimony of Temple. We have repeatedly held that under such circumstances, the failure of the court, sua sponte, to" }, { "docid": "4296954", "title": "", "text": "instruction that the jury must presume that each witness speaks the truth unless the presumption is outweighed. Where two instructions are in conflict, and one is an incorrect statement of the law and is clearly prejudicial, the charge constitutes reversible error, since the jury “might have followed the erroneous instruction.” United States v. Walker, 677 F.2d 1014, 1016-17 n. 3 (4th Cir. 1982). Furthermore, the impermissible distinction that the district court impliedly drew between the application of the presumption of truthfulness to prosecution witnesses and to the defendant was likely at least to confuse the jury and at most to mislead it. In either event, the error affected the right of the defendant to have his testimony evaluated by an impartial standard. Because there is a substantial likelihood that the error in the instructions was prejudicial, it cannot be disregarded. See United States v. Gresko, 632 F.2d 1128, 1135 (4th Cir.1980); Federal Rule of Criminal Procedure 52(a). The judgment of the district court is vacated, and the case is remanded for a new trial. . The court gave the following instruction pertaining to the defendant’s testimony: If a defendant elects to take the witness stand and testify in his own defense, as the defendant has done in this case, then he becomes as any other witness, and you the jury must determine his credibility and give his testimony such credence and belief as you may think it deserves. You should judge and determine the defendant’s believability as you would any other witness in this case. . See, e.g., McMillen v. United States, 386 F.2d 29 (1st Cir.1967); United States v. Bilotti, 380 F.2d 649, 654-56 (2d Cir.1967); United States v. Evans, 398 F.2d 159, 160-64 (3d Cir.1968); Knapp v. United States, 316 F.2d 794 (5th Cir.1963); United States v. Stroble, 431 F.2d 1273, 1278 (6th Cir.1970); United States v. Dichiarinte, 385 F.2d 333, 339-40 (7th Cir.1967); United States v. Gray, 464 F.2d 632, 638-40 (8th Cir.1972); United States v. Gutierrez-Espinosa, 516 F.2d 249, 250 (9th Cir.1975); United States v. Birmingham, 447 F.2d 1313, 1315-16 (10th Cir.1971); Stone v. United States," }, { "docid": "7749431", "title": "", "text": "L.Ed.2d 429 (1970). The better practice is not to submit the indictment to the jury in writing, since it is not evidence and the initial reading of the indictment sufficiently informs the jury of the charges. An indictment returned by a federal grand jury may be amended only upon resubmission to the grand jury except as to merely formal changes. Russell v. United States, supra, 369 U.S. at 770, 82 S.Ct. at 1050, 8 L.Ed.2d at 254; United States v. Pandilidis, 524 F.2d 644 (6th Cir. 1975). Thus, an indictment should be neither enlarged nor reduced by the court. However, since the only changes actually made in the copy of the indictment which was apparently furnished to the jury in this case were made on the motion of one of the defendants, or with the acquiescence of all parties, there was no prejudice. THE “PRESUMPTION OF TRUTHFULNESS” INSTRUCTION The district court’s general charge to the jury contained the following language: Each witness is presumed to speak the truth; however, if you find the presumption of truthfulness to be outweighed as to any witness, you will give the testimony of that witness such credibility, if any, as you may think it merits. Counsel for Maselli made a timely objection to the presumption of truthfulness instruction. While finding that the giving of such an instruction is not, in the absence of an objection, plain error which requires a reversal, this court has characterized a similar instruction as “erroneous” and “not desirable.” United States v. Stroble, 431 F.2d 1273, 1278 (6th Cir. 1970). In dealing with a presumption of truth instruction in United States v. Griffin, 382 F.2d 823, 827 (6th Cir. 1967), the court quoted with approval from United States v. Meisch, 370 F.2d 768 (3d Cir. 1966), at 773: It is perhaps safe to say that the vast majority of witnesses speak the truth and that jurors are aware of this. But we have not found an authoritative case . easting that tendency of human nature into a legal presumption in a criminal case tried to a jury. In Cupp v." }, { "docid": "12835542", "title": "", "text": "have summarized was bolstered by two volunteered admissions and a written statement given after full Miranda warnings. In this, as in many other cases where a defendant’s guilt is plain, counsel for a defendant who insists on standing trial has little to offer except attack on law enforcement officers. While prosecutors would be wiser not to take such attacks too seriously, they can hardly be censured for responding sharply to criticisms they believe to be wholly unjustified, and courts should not be overly nice in such cases in scrutinizing the give-and-take of summation. Save in extreme instances, the judge’s charge and the jury’s good sense can be counted on to set things right. See United States v. DeAlesandro, 361 F.2d 694, 697 (2 Cir.), cert. denied, 385 U.S. 842, 87 S.Ct. 94, 17 L.Ed.2d 74 (1966); United States v. Briggs, 457 F.2d 908, 911-912 (2 Cir.), cert. denied, 409 U.S. 986, 93 S.Ct. 337, 34 L.Ed.2d 251 (1972). We are confident that was the case here. III. Santana’s final point relates to the court’s having given, without objection, what apparently was a “boilerplate” charge as follows: If you find the presumption of truthfulness to be outweighed as to any witness, you can do one of two things —you can reject all of that witness’ testimony on the ground that it was all tainted by falsehood and that none of it is worthy of belief or you can accept that part which you believe' to be credible and reject only that part which you believe to be tainted by falsehood. It would seem indeed that six years after United States v. Bilotti, 380 F.2d 649, 655-656 (2 Cir.), cert. denied, 389 U.S. 944, 88 S.Ct. 308, 19 L.Ed.2d 300 (1967), and eight years after the objectionable form had been changed, see Mathes and Devitt, Federal Jury Practice and Instructions No. 72.01 (1965), references to a “presumption” of truthfulness would have disappeared from charges in this circuit. Here, however, the judge did not repeat the most objectionable part of the charge condemned in Bilotti, namely, the affirmative statement, “In our law there" }, { "docid": "7749432", "title": "", "text": "truthfulness to be outweighed as to any witness, you will give the testimony of that witness such credibility, if any, as you may think it merits. Counsel for Maselli made a timely objection to the presumption of truthfulness instruction. While finding that the giving of such an instruction is not, in the absence of an objection, plain error which requires a reversal, this court has characterized a similar instruction as “erroneous” and “not desirable.” United States v. Stroble, 431 F.2d 1273, 1278 (6th Cir. 1970). In dealing with a presumption of truth instruction in United States v. Griffin, 382 F.2d 823, 827 (6th Cir. 1967), the court quoted with approval from United States v. Meisch, 370 F.2d 768 (3d Cir. 1966), at 773: It is perhaps safe to say that the vast majority of witnesses speak the truth and that jurors are aware of this. But we have not found an authoritative case . easting that tendency of human nature into a legal presumption in a criminal case tried to a jury. In Cupp v. Naughton, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), the Supreme Court held that a defendant in a state criminal proceeding is not denied due process by the court’s charging the jury that every witness is presumed to tell the truth, stating, “Certainly the instruction by its language neither shifts the burden of proof nor negates the presumption of innocence . . ..” Id. at 148, 94 S.Ct. at 401, 38 L.Ed.2d at 374. The Court cautioned against judging any single instruction “in artificial isolation” rather than “in the context of the overall charge.” Id. at 147, 94 S.Ct. at 400, 38 L.Ed.2d at 373. Recognizing the almost universal condemnation of this instruction by federal appellate courts, the Supreme Court pointed out that these decisions have been based on the supervisory powers of such courts over the proceedings of trial courts within their respective jurisdictions, rather than on a finding of constitutional violations. Id. at 144-146, 94 S.Ct. at 399-400, 38 L.Ed.2d at 372-373. Where there is a timely objection to a “presumption" }, { "docid": "22610207", "title": "", "text": "of the relevant factual issues. Here, the truth-finding function of the jury was invaded and the State's burden of proving guilt beyond a reasonable doubt was diminished. When the reasonable-doubt standard has been thus compromised, it cannot be said beyond doubt that the error “made no contribution to a criminal conviction.” Harrington v. California, 395 U. S. 250, 255 (1969) (dissenting opinion). Rather, such an error so conflicts with an accused's right to a fair trial that the “infraction can never be treated as harmless error.” Chapman v. California, supra, at 23. Due to the structuring of the instructions it is conceivable that the jurors would have understood that, since the presumption of innocence could be overcome only by proof of guilt beyond a reasonable doubt, the presumption of truthfulness could likewise be overcome only by evidence of untruthfulness beyond a reasonable doubt. If the instructions were in fact understood in this manner, the ensuing arguments concerning the unconstitutionality of the instructions would follow a fortiori. The courts of appeals in every circuit have disapproved of presumption-of-truthfulness instructions and have often expressed their objections in terms of constitutional values. See McMillen v. United States, 386 F. 2d 29 (CA1 1967); United States v. Bilotti, 380 F. 2d 649 (CA2 1967); United States v. Evans, 398 F. 2d 159 (CA3 1968); United States v. Safley, 408 F. 2d 603 (CA4 1969); United States v. Reid, 469 F. 2d 1094 (CA5 1972); United States v. Stroble, 431 F. 2d 1273 (CA6 1970); United States v. Dichiarinte, 385 F. 2d 333 (CA7 1967); United States v. Gray, 464 F. 2d 632 (CA8 1972); the instant case, Naughten v. Cupp, 476 F. 2d 845 (CA9 1972); United States v. Birmingham, 447 F. 2d 1313 (CA10 1971); Stone v. United States, 126 U. S. App. D. C. 369, 379 F. 2d 146 (1967). But the courts have been particularly concerned about the impact that such instructions might have when the defendant has not offered testimony. See United States v. Safley, supra, at 605; United States v. Boone, 401 F. 2d 659, 661 (CA3 1968); United" }, { "docid": "320013", "title": "", "text": "whether the defendant knew the steel had been stolen when he bought it. On appeal, the defendant raised several issues for our consideration. II. Jury Instructions. a. The “presumption of truth” instruction. During the charge to the jury, the trial judge gave instruction No. 26 which provided as follows: If there are conflicts in the evidence, it is your duty to reconcile the conflicts, if you can, on the theory that each witness has testified to the truth. If you cannot so reconcile the testimony, then it is within your province to determine whom you will believe and whom you will disbelieve. You should weigh the evidence and give credit to the testimony in light of your own experience and observations in the ordinary affairs of life. The defendant argues that this instruction amounts to an instruction that every witness is presumed to have testified truthfully, and is error because it is within the sole province of the jury to determine witness credibility. A “presumption of truth” instruction has been disapproved by several circuits. United States v. Pincione, 565 F.2d 404, 405 (6th Cir.1977); United States v. Gray, 464 F.2d 632, 638-39 (8th Cir. 1972); United States v. Birmingham, 447 F.2d 1313, 1315-16 (10th Cir.1971); United States v. Boone, 401 F.2d 659, 661, 662 (3rd Cir.1968), cert, denied sub nom., Jackson v. United States, 394 U.S. 933, 89 S.Ct. 1205, 22 L.Ed.2d 463 (1969); McMillen v. United States, 386 F.2d 29, 35-36 (1st Cir. 1967), cert, denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288 (1968); United States v. Bilotti, 380 F.2d 649, 656 (2d Cir.), cert, denied, 389 U.S. 944, 88 S.Ct. 308, 19 L.Ed.2d 300 (1967). However, upon close inspection of the precedent in this circuit , and after careful consideration, we do not think that instruction No. 26 is a “presumption of truth” instruction. In effect the jury was told that if there were irreconcilable conflicts in the evidence, then it was up to the jury to decide who to believe. Thus, the instruction left the determination of witness credibility to the jury and there was" }, { "docid": "4296955", "title": "", "text": "The court gave the following instruction pertaining to the defendant’s testimony: If a defendant elects to take the witness stand and testify in his own defense, as the defendant has done in this case, then he becomes as any other witness, and you the jury must determine his credibility and give his testimony such credence and belief as you may think it deserves. You should judge and determine the defendant’s believability as you would any other witness in this case. . See, e.g., McMillen v. United States, 386 F.2d 29 (1st Cir.1967); United States v. Bilotti, 380 F.2d 649, 654-56 (2d Cir.1967); United States v. Evans, 398 F.2d 159, 160-64 (3d Cir.1968); Knapp v. United States, 316 F.2d 794 (5th Cir.1963); United States v. Stroble, 431 F.2d 1273, 1278 (6th Cir.1970); United States v. Dichiarinte, 385 F.2d 333, 339-40 (7th Cir.1967); United States v. Gray, 464 F.2d 632, 638-40 (8th Cir.1972); United States v. Gutierrez-Espinosa, 516 F.2d 249, 250 (9th Cir.1975); United States v. Birmingham, 447 F.2d 1313, 1315-16 (10th Cir.1971); Stone v. United States, 379 F.2d 146, 147 (D.C. Cir.1967); see also Devitt & Blackmar Federal Jury Practice and Instructions, 519-21 (3d ed. 1977). Although these circuits have expressed disapproval of the instruction, and suggested that it not be given, only a few of the courts have found it to be plain error. The Eleventh and Federal Circuits apparently have not considered the instruction. In a case involving collateral review of a state court conviction, the Supreme Court held that the instruction was not constitutionally defective. Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). As the Court noted, the standard of review was more deferential in that case than it would be if the issue were presented on direct appeal of a federal conviction. Consequently, the question in Cupp was not simply whether the instruction was improper but whether it \"so infected the entire trial that the resulting conviction violates due process.\" Cupp, 414 U.S. at 147, 94 S.Ct. at 400." }, { "docid": "885527", "title": "", "text": "the court at this time. An adequate post-conviction procedure is afforded by 28 U.S.C. § 2255 for developing a factual record to support these allegations, if they can be so supported. That procedure obviates the deciding of the issue without opportunity for all parties to unfold the facts. . In fact, the defendant was afforded the opportunity to confront the witness that had notified the American Express Company as to the loss of money orders, including the government’s Exhibits 2 and 3, through the testimony of DeWoskin. . The government’s counsel argued: “My other comment is when you retire for your deliberation and you are examining the two money orders from the American Express Company, I want you to ask yourselves one question as you look at the payor line on those money orders, ask yourself where is Harold Shineberg and why isn’t he in court here today testifying? Where is Harold Shineberg, he is the one man whose name has not really come up yet in this case.” . In United States v. Dichiarinte, 385 F.2d 333, 339 (7th Cir. 1967), the Circuit while observing that such a presumption of truthfulness instruction was better left out made it clear that reversible error occurred because of the trial judge’s comment that the jury was to determine whether government or defense witnesses were lying. A similar instruction has been held not to be within the plain error rule. See United States v. Stroble, 431 F.2d 1273, 1278 (6th Cir. 1970); United States v. Safley, 408 F.2d 603, 605 (4th Cir. 1969), cert. denied, 395 U.S. 983, 89 S.Ct. 2147, 23 L.Ed.2d 772; United States v. Boone, 401 F.2d 659, 661-662 (3rd Cir. 1968), cert. denied sub. nom. Jackson v. United States, 394 U.S. 933, 89 S.Ct. 1205, 22 L.Ed.2d 463; and Marsh v. United States, 402 F.2d 457, 458 (9th Cir. 1968)." } ]

[ { "docid": "1789364", "title": "", "text": "the alleged false representation was allegedly made prior to the sale in order to induce plaintiff to make the purchase, and had nothing to do with merchantability, fitness for a particular purpose or faulty workmanship. It is possible for a boat that has been repaired to be fit and merchantable. But if the plaintiff only wanted a boat that had never been repaired, and this boat was misrepresented as such, plaintiff has a separate action for fraudulent misrepresentation. Nonetheless, plaintiffs fourth cause of action is barred by New York’s economic loss rule. “New York’s economic loss rule restricts plaintiffs who have suffered ‘economic loss,’ but not personal or property injury, to an action for the benefit of their bargain. If the damages are the type remedial in contract, a plaintiff may not recover in tort.” Carmania Corp., N.V. v. Hambrecht Terrell Int’l, 705 F.Supp. 936, 938 (S.D.N.Y.1989) quoting Schiavone Constr. Co. v. Elgood Mayo Corp., 56 N.Y.2d 667, 451 N.Y.S.2d 720, 436 N.E.2d 1322 (1982). Here plaintiff is attempting solely to recover for the alleged loss of the benefit of his bargain; a remedy confined to a cause of action sounding in contract and not in tort. See, e.g., Carmania Corp., 705 F.Supp. at 938-39 (holding that a buyer of architectural services could only recover in contract where loss was purely economic); Rubin v. Telemet Am., Inc., 698 F.Supp. 447 (S.D.N.Y.1988) (holding that buyer could not recover from seller under tort theory because he failed to specify that he suffered any physical or emotional injuries — as opposed to economic loss — resulting from seller’s conduct). Nowhere in the amended complaint does plaintiff allege that he suffered anything other than economic loss from defendant’s alleged fraudulent misrepresentation. The amended complaint contains no allegations that plaintiff suffered either physical or emotional injury. The only loss sufficiently pleaded is $20,000.00 — the value of the boat under the contract. Therefore, plaintiffs fourth cause of action, alleging fraudulent misrepresentation, is barred by New York’s economic loss rule. Plaintiff appears to be arguing that he is not subject to the economic loss rule because" } ]

[ { "docid": "9892329", "title": "", "text": "EED’s fraud claim on the following grounds: (1) that the allegedly fraudulent statements are non-actionable “puffery,” (2) that the fraud claim violates the economic loss rule, (3) that the fraud claim is indistinguishable from the breach of contract claim, and (4) that the complaint fails to allege scienter with sufficient particularity pursuant to Fed. R. Civ. P 9(b). A review of the complaint in light of relevant authority leads to the conclusions that (1) McKelvey’s statement as to PJI’s present wherewithal was not puffery, (2) the economic loss rule does not apply to this allegedly fraudulent statement, (3) the fraud claim is distinguishable from plaintiffs contract claim, and (4) the complaint has adequately plead scienter. 1. McKelvey’s Statement Concerning PJI’s Present Wherewithal are Actionable EED alleges that McKelvey made three fraudulent statements at the 2001 New York Yacht Club meeting: (1) that PJI “would be building the ‘greatest boats’ ” (Comply 14); (2) that PJI “had the capability and wherewithal to properly construct the yacht sought by Goldman in a timely manner” (id.); and (3) that McKel-vey “was personally ‘committed to PJI.’ ” (id.). McKelvey argues that all three of these statements are non-actionable puf-fery. It is well established in New York that “a seller’s mere general commendations of the product sought to be sold, commonly known as ‘dealer’s talk,’ ‘sales talk,’ or ‘puffery,’ do not amount to actionable misrepresentations[.]” 60A William H. Danne, Jr., N.Y. Jur. § 34 (2d ed. 2003) (“N.Y.Jur.”) (collecting cases). However, the doctrine of non-actionability for puffery does not apply “to false representations of material facts which are in their nature calculated to deceive and are made with the intent to deceive.” 60A N.Y. Jur. § 34 (collecting cases). The first and third of the statements allegedly made by McKelvey during the course of the 2001 New York Yacht Club meeting are not actionable because they are mere expressions of advertising, a well recognized form of puffery. See, e.g., Quasha v. American Natural Beverage Corp., 171 A.D.2d 537, 567 N.Y.S.2d 257 (1st Dep’t 1991) (dismissing fraud claim where documents withheld from plaintiff “contain nothing more" }, { "docid": "2674339", "title": "", "text": "to the distinction between property damage and consequential economic loss adopted by the Court of Appeals in Schiavone Constr. Co. v. Mayo Corp., 56 N.Y.2d. 667, 451 N.Y.S.2d 720, 436 N.E.2d 1322, rev’g on dissent, 81 A.D.2d 221, 227-234, 439 N.Y.S.2d 933 (1981). In Schiavone, the plaintiffs sued for lost profits as part of their claim for damages in a defective truck hoist case. The dissent in the First Department’s opinion in Schiavone — adopted as its opinion by the Court of Appeals — distinguished between two types of economic loss: physical damage and consequential loss in the form of lost profits. It held that while the plaintiffs could recover for physical'damage under their tort claim for products liability, they could recover for lost profits only under a contract claim of implied warranty and only in the manner provided for according to the contract: We must distinguish between two types of cases: (a) where the product is unduly dangerous so that the . defect causes physical damage, presumably due to an accident, to either persons or property, (b) Where the product, although not itself unduly dangerous, does not function properly, resulting in economic loss other than physical damage to persons of property. Schiavone, 81 A.D.2d at 228, 439 N.Y.S.2d at 937 (emphasis added). The court draws the distinction between torts — both unintentional and intentional, as the reference to “presumably an accident” makes clear — and contract. According to Schiavone, damages incurred as the result of physical harm to property, whether unintentional or intentional (as in 81 Franklin) can be collected in tort, but damages for loss of economic expectations depend entirely on the parties’ prior negotiations with each other: The distinction that the law has drawn between tort recovery for physical injuries and warranty recovery for economic loss is not arbitrary and does not rest on the “luck” of one plaintiff [in suffering physical injury]____ The distinction rests, rather, on an understanding of the nature of the responsibility a manufacturer must undertake in distributing his products. He can appropriately be held liable for physical injuries caused by defects by" }, { "docid": "1789365", "title": "", "text": "loss of the benefit of his bargain; a remedy confined to a cause of action sounding in contract and not in tort. See, e.g., Carmania Corp., 705 F.Supp. at 938-39 (holding that a buyer of architectural services could only recover in contract where loss was purely economic); Rubin v. Telemet Am., Inc., 698 F.Supp. 447 (S.D.N.Y.1988) (holding that buyer could not recover from seller under tort theory because he failed to specify that he suffered any physical or emotional injuries — as opposed to economic loss — resulting from seller’s conduct). Nowhere in the amended complaint does plaintiff allege that he suffered anything other than economic loss from defendant’s alleged fraudulent misrepresentation. The amended complaint contains no allegations that plaintiff suffered either physical or emotional injury. The only loss sufficiently pleaded is $20,000.00 — the value of the boat under the contract. Therefore, plaintiffs fourth cause of action, alleging fraudulent misrepresentation, is barred by New York’s economic loss rule. Plaintiff appears to be arguing that he is not subject to the economic loss rule because he is entitled to punitive damages in the amount of $500,000. However, it is settled in New York that punitive damages are not available in the ordinary fraud and deceit case. Kelly v. Defoe Corp., 223 A.D.2d 529, 636 N.Y.S.2d 123 (2d Dep’t 1996) (citing Walker v. Sheldon, 10 N.Y.2d 401, 405, 223 N.Y.S.2d 488, 179 N.E.2d 497 (1961)) (internal quotation marks omitted). Punitive damages are available only where the defendant acts with evil and reprehensible motives. Wal-lach Marine Corp. v. Donzi Marine Corp., 675 F.Supp. 838, 842 (S.D.N.Y.1987). Accepting the allegations in the complaint as true, defendant’s misrepresentation about the hull not being repaired is neither evil nor reprehensible as that term is understood in the context of punitive damage awards. Lovely Peoples Fashion, Inc. v. Magna Fabrics, Inc., 1998 WL 422482, *7 (S.D.N.Y.1998) (failure to deliver adequate amount of conforming fabric, even if defendant made fraudulent misrepresentations regarding their fabric inventory, was neither “egregious” nor “gross and morally reprehensible”). Thus, the plea for punitive damages must be stricken, and plaintiff is left with" }, { "docid": "9892336", "title": "", "text": "to any case in the New York courts applying the economic loss doctrine to an intentional tort, nor has one been found by the Court, [citations omitted]”). McKelvey has failed to point to any such cases, and this Court’s renewed canvas of New York cases once again reveals no authority for the application of the economic loss doctrine to claims, such as this one, that sound in fraud. Moreover, as discussed in greater detail below, New York courts have routinely permitted fraud and contract claims to proceed in tandem for the purpose of recovering pure economic loss. See, e.g., Deerfield Comm. Corp. v. Chesebrough-Ponds, Inc., 68 N.Y.2d 954, 956, 502 N.E.2d 1003, 1004, 510 N.Y.S.2d 88, 89 (1986) (affirming lower court’s denial of motion to dismiss fraudulent concealment counterclaim where another counterclaim sounded in contract and the only alleged damages were purely economic); First Bank of Americas v. Motor Car Funding, Inc., 257 A.D.2d 287, 291, 690 N.Y.S.2d 17, 21-22 (1st Dep’t 1999); Steigerwald v. Dean Witter Reynolds, Inc., 107 A.D.2d 1026, 1027, 486 N.Y.S.2d 516, 518 (4th Dep’t 1985). Based on the foregoing, the Court concludes that the economic loss rule presents no bar to the assertion of EED’s fraud claim. 3. The Fraud and Breach of Contract Claims are Distinguishable Defendants argue that Plaintiffs tort claims should be dismissed because the fraud claim is indistinguishable from the breach of guaranty claim. Under New York law, a fraud cause of action generally does not arise where the alleged fraud merely relates to a breach of contract. Salvador v. Uncle Sam’s Auctions & Realty, Inc. ex rel. Passonno, 307 A.D.2d 609, 611, 763 N.Y.S.2d 360, 362 (3d Dep’t 2003); River Glen Assocs., Ltd. v. Merrill Lynch Credit Corp., 295 A.D.2d 274, 275, 743 N.Y.S.2d 870, 871 (1st Dep’t 2002); Bazerman v. Edwards, 295 A.D.2d 115, 742 N.Y.S.2d 822 (1st Dep’t 2002). However, this general rule is subject to the corollary that “a party who has breached a contract may be charged with separate tort liability for fraud arising from a breach of duty that is distinct from, or in addition" }, { "docid": "9892328", "title": "", "text": "Fraud Claim Against McKel-vey Survives The New York Court of Appeals has stated that: [i]n an action to recover damages for fraud, the plaintiff must prove a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury[.] Lama Holding Co. v. Smith Barney, Inc., 88 N.Y.2d 413, 421, 646 N.Y.S.2d 76, 80, 668 N.E.2d 1370, 1373 (1996) (citing New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 318, 639 N.Y.S.2d 283, 289, 662 N.E.2d 763, 769 (1995); Channel Master Corp. v. Aluminum Ltd. Sales, Inc., 4 N.Y.2d 403, 406-07, 176 N.Y.S.2d 259, 262, 151 N.E.2d 833, 835 (1958)); see also 60A William H. Danne, Jr., N.Y. Jur. § 14 (2d ed. 2003) (“N.Y.Jur.”) (The elements of the fraud cause of action are “representation of a material fact, falsity, scienter, reliance, and injury or damage.”). McKelvey has moved for dismissal of EED’s fraud claim on the following grounds: (1) that the allegedly fraudulent statements are non-actionable “puffery,” (2) that the fraud claim violates the economic loss rule, (3) that the fraud claim is indistinguishable from the breach of contract claim, and (4) that the complaint fails to allege scienter with sufficient particularity pursuant to Fed. R. Civ. P 9(b). A review of the complaint in light of relevant authority leads to the conclusions that (1) McKelvey’s statement as to PJI’s present wherewithal was not puffery, (2) the economic loss rule does not apply to this allegedly fraudulent statement, (3) the fraud claim is distinguishable from plaintiffs contract claim, and (4) the complaint has adequately plead scienter. 1. McKelvey’s Statement Concerning PJI’s Present Wherewithal are Actionable EED alleges that McKelvey made three fraudulent statements at the 2001 New York Yacht Club meeting: (1) that PJI “would be building the ‘greatest boats’ ” (Comply 14); (2) that PJI “had the capability and wherewithal to properly construct the yacht sought by Goldman in a timely manner” (id.); and (3)" }, { "docid": "3605703", "title": "", "text": "not for us to speculate. Moreover, this argument undercuts appellant’s earlier assertion that its concerns are economic, and not safety, related. Thus, the fact remains that this complaint does not allege an injury to person or property and therefore does not state a cause of action for negligence. Similar reasoning applies to Suffolk’s allegations of strict liability. The nature of strict products liability is to permit recovery for personal injury or property damage caused by a manufacturer’s unreasonably dangerous product. Codling v. Paglia, 32 N.Y.2d 330, 340-41, 298 N.E.2d 622, 345 N.Y.S.2d 461 (1973). Because the law deems the manufacturer’s duty great and the injury inflicted serious, it bends privity of contract requirements to allow remote purchasers to sue the manufacturer. Id. But where plaintiff’s claim is simply that the product did not function properly, requiring its owner to incur costs of repair, then the only injury claimed is one for economic loss, which is not considered sufficiently severe to warrant the abrogation of the privity requirement. Schiavone Construction Co. v. Elgood Mayo Corp., 81 A.D.2d 221, 228-29, 439 N.Y.S.2d 933, (1st Dep’t 1981) (Silverman, J., dissenting), rev’d mem. 56 N.Y.2d 667, 436 N.E.2d 1322, 451 N.Y.S.2d 720 (1982) (embracing the views expressed in Justice Silverman’s dissenting opinion). Accordingly, the economic loss suffered by LILCO’s ratepayers as a result of defects in the Shoreham plant will not support a strict liability claim. See Martin v. Julius Dierck Equipment Co., supra. Appellant’s breach of warranty and contract allegations are also flawed, but not for the same reasons. Unlike negligence and strict liability causes of action, which seek to make the injured party “whole,” warranty and contract remedies exist to afford injured parties the benefit of their bargain. Hence, economic loss is ordinarily compensable under the latter two theories. See Martin v. Julius Dierck Equipment Co., supra, 43 N.Y.2d at 589, 374 N.E.2d 97, 403 N.Y.S.2d 185. Clearly, though, appellant cannot succeed with these claims, for absent a contractual relationship there can be no contractual remedy. Id. LILCO’s ratepayers are not in privity of contract with those defendants who allegedly furnished defective" }, { "docid": "21993602", "title": "", "text": "independent. Plaintiffs have alleged that Bruner’s “advice” to Cunningham lead directly to the concealment of this information from the plaintiffs. Finally, the Bruner Defendants contend that plaintiffs’ tort claims are barred by the “economic loss” rule. See Carmania Corp. N.V. v. Hambrecht Terrell Int’l, 705 F.Supp. 936, 938 (S.D.N.Y.1989) (“plaintiffs who have suffered ‘economic loss,’ but not personal or property injury” are restricted to contract action). However, “a contracting party may be charged with ... separate tort liability arising from a breach of a duty distinct from, or in addition to, the breach of contract.” Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 551, 583 N.Y.S.2d 957, 593 N.E.2d 1365 (1992). Here, there was no binding agreement between plaintiffs and the Bruner Defendants. Even if there were such an agreement, it is well established that fraud-based claims may exist alongside a claim for breach of contract. See EED Holdings v. Palmer Johnson Acquisition Corp., 387 F.Supp.2d 265, 277-79 (S.D.N.Y.2004). Thus, plaintiffs have adequately alleged negligent misrepresentation against each of the Bruner Defendants, and have adequately alleged negligent nondisclosure and fraudulent concealment against Bruner, Equistar and RVM. 3. Unjust Enrichment As set forth above, plaintiffs’ written agreement with BCI does not, as a matter of law, bar a claim for unjust enrichment against non-parties to that agreement whose alleged conduct falls outside of the subject matter of the agreement. Thus, plaintiffs have adequately alleged a claim for unjust enrichment against the Bruner Defendants. 4. Civil Conspiracy For the reasons set forth above, plaintiffs claim for “civil conspiracy” must be dismissed in toto. 5. Vicarious Liability For the reasons set forth above, plaintiffs may plead “vicarious liability” as a separate cause of action. Therefore, the Bruner Defendants’ motion to dismiss these claims is denied. 6. Colorado Securities Act Since a CSA claim may be predicated on an affirmative fraudulent misrepresentation or a fraudulent omission, see Colo.Rev. Stat. § 11 — 15—501(l)(b), plaintiffs have adequately alleged violations of the CSA against Nelson, Lotito and Equistar (for affirmative misrepresentations) and Bruner, Equistar and RVM (for fraudulent concealment). 6. Fraudulent Transfer Plaintiffs allege that $50,000" }, { "docid": "3895357", "title": "", "text": "to recover under Star Furniture, the damage to the product must result from a sudden calamitous event attributable to the dangerous defect or design of the product itself.” 403 S.E.2d at 191, citing Capitol Fuels, Inc. v. Clark Equipment Co., 382 S.E.2d 311 (W.Va.1989). Thus, under the law of Virginia, West Virginia, Maryland, Delaware, Pennsylvania, New Jersey, and Massachusetts, the tort claims asserted in this case by Amtrak, CSX, and the MBTA are barred. In addition, Metro-North’s tort claims are barred under New York law. In Schiavone Construction Co. v. Elgood Mayo Corp., 81 A.D.2d 221, 232, 439 N.Y.S.2d 933, 939 (1st Dep’t.1981) (Silverman, J., dissenting), dissent adopted on appeal, 56 N.Y.2d 667, 451 N.Y.S.2d 720, 436 N.E.2d 1322 (1982), Judge Silverman stated: the rationale behind strict liability in personal injury situations is not well-suited to claims alleging only economic loss. Economic loss results from the failure of the product to perform to the level expected by the buyer and the seller. This reasoning was expressly adopted by the New York Court of Appeals, which reversed the majority opinion in Schiavone and adopted the dissent of Judge Silver-man. 451 N.Y.S.2d at 720-21, 436 N.E.2d at 1323. See also County of Suffolk v. Long Island Lighting Co., 728 F.2d 52, 62 (2nd Cir.1984); Long Island Lighting Co. (LILCO) v. Transamerica Delaval, 646 F.Supp. 1442, 1457 (S.D.N.Y.1986). In sum, it is apparent from the record in this case that the danger of failure of the railroad ties to the extent that such failure would cause a derailment or other calamitous event is merely speculative at best and is not the type of circumstance which would support the assertion of a tort claim by any of the railroads. The claims of all the railroads in this case arise under the contracts between the parties and are based on the failure of the product to perform as expected. Any recovery by the railroads in these actions will therefore be in contract, not in tort. For all these reasons, defendant Lone Star is entitled to partial summary judgment as to the claims of all plaintiffs" }, { "docid": "21993601", "title": "", "text": "Industries, Inc., 822 F.2d 1242, 1247 (2d Cir.1987). Here, communications between Bruner and Cunningham are solely within the defendants’ knowledge. Furthermore, plaintiffs have alleged facts supporting this belief, namely, that Bruner had a long history of troubled investments with Hughes; that Bruner knew Hughes would not invest if she knew the full extent of his involvement in BCI; and that Cunningham in fact did not disclose Bruner’s true role in BCI. Therefore, plaintiffs have adequately alleged fraudulent concealment against Bruner, RVM and Equistar. Bruner also argues that Cunningham alone should be liable for any failure to disclose Bruner’s role, because plaintiffs relied exclusively on Cunningham’s concealment of Bruner’s involvement, rather than on any statements by Bruner to Cunningham. See Securities Investor Protection Co. v. BDO Seidman, LLP, 95 N.Y.2d 702, 709-11, 723 N.Y.S.2d 750, 746 N.E.2d 1042 (2001) (no fraud where plaintiff relied on independent actions of third party rather than defendant’s misrepresentations to third party). However, if in fact Bruner advised Cunningham not to disclose Bruner’s involvement, then Cunningham’s actions cannot be viewed as independent. Plaintiffs have alleged that Bruner’s “advice” to Cunningham lead directly to the concealment of this information from the plaintiffs. Finally, the Bruner Defendants contend that plaintiffs’ tort claims are barred by the “economic loss” rule. See Carmania Corp. N.V. v. Hambrecht Terrell Int’l, 705 F.Supp. 936, 938 (S.D.N.Y.1989) (“plaintiffs who have suffered ‘economic loss,’ but not personal or property injury” are restricted to contract action). However, “a contracting party may be charged with ... separate tort liability arising from a breach of a duty distinct from, or in addition to, the breach of contract.” Sommer v. Federal Signal Corp., 79 N.Y.2d 540, 551, 583 N.Y.S.2d 957, 593 N.E.2d 1365 (1992). Here, there was no binding agreement between plaintiffs and the Bruner Defendants. Even if there were such an agreement, it is well established that fraud-based claims may exist alongside a claim for breach of contract. See EED Holdings v. Palmer Johnson Acquisition Corp., 387 F.Supp.2d 265, 277-79 (S.D.N.Y.2004). Thus, plaintiffs have adequately alleged negligent misrepresentation against each of the Bruner Defendants, and have adequately" }, { "docid": "9892335", "title": "", "text": "representations prior to the time that the sales contract was entered induced the purchase of the boat. The Orlando court held that plaintiffs fraud claim, which it determined to be “separate and distinct” from the contract claim, id. at 225, was nonetheless barred by New York’s economic loss rule. However, the Orlando court failed to identify any New York cases addressing the applicability of the economic loss rule to a fraud claim. Rather, it reasoned that since New York courts had failed to carve out any applicable exceptions to the rule, it must be interpreted to bar a fraud claim for pure economic loss. Id. at 226. This Court has previously declined to adopt the Orlando court’s reasoning, holding instead that “[i]n the absence of any articulation to the contrary by the New York courts, the economic loss doctrine will not be presumed to extend to fraud claims.” Computech Int’l Inc. v. Compaq Computers Corp., No. 02 Civ. 2628(RWS), 2004 WL 1126320 at *10 (S.D.N.Y. May 21, 2004) (observing that “[t]he parties have not cited to any case in the New York courts applying the economic loss doctrine to an intentional tort, nor has one been found by the Court, [citations omitted]”). McKelvey has failed to point to any such cases, and this Court’s renewed canvas of New York cases once again reveals no authority for the application of the economic loss doctrine to claims, such as this one, that sound in fraud. Moreover, as discussed in greater detail below, New York courts have routinely permitted fraud and contract claims to proceed in tandem for the purpose of recovering pure economic loss. See, e.g., Deerfield Comm. Corp. v. Chesebrough-Ponds, Inc., 68 N.Y.2d 954, 956, 502 N.E.2d 1003, 1004, 510 N.Y.S.2d 88, 89 (1986) (affirming lower court’s denial of motion to dismiss fraudulent concealment counterclaim where another counterclaim sounded in contract and the only alleged damages were purely economic); First Bank of Americas v. Motor Car Funding, Inc., 257 A.D.2d 287, 291, 690 N.Y.S.2d 17, 21-22 (1st Dep’t 1999); Steigerwald v. Dean Witter Reynolds, Inc., 107 A.D.2d 1026, 1027, 486 N.Y.S.2d" }, { "docid": "3605702", "title": "", "text": "PSC has exclusive jurisdiction over appellant’s request for retrospective and prospective rate relief, the district court properly dismissed the complaint. C. Common Law Causes of Action Even if the doctrines of federal and state preemption did not dispose of this case, we would still affirm the district court’s decision because Suffolk’s claims are not cognizable under New York common law. The complaint first alleges negligence on the part of LILCO and its contractors. Yet, it fails to indicate any injury incurred by LILCO’s ratepayers apart from economic loss. New York law holds that a negligence action seeking recovery for economic loss will not lie. Price Brothers Co. v. Olin Construction Co., 528 F.Supp. 716, 721 (W.D.N.Y.1981); Martin v. Julius Dierck Equipment Co., 43 N.Y.2d 583, 374 N.E.2d 97, 403 N.Y.S.2d 185 (1978). Appellant attempts to circumvent this rule by arguing that the unreasonably dangerous nature of a nuclear power plant creates a substantial likelihood of future injury on a grand scale and that this amounts to more than economic injury. Whether such likelihood exists is not for us to speculate. Moreover, this argument undercuts appellant’s earlier assertion that its concerns are economic, and not safety, related. Thus, the fact remains that this complaint does not allege an injury to person or property and therefore does not state a cause of action for negligence. Similar reasoning applies to Suffolk’s allegations of strict liability. The nature of strict products liability is to permit recovery for personal injury or property damage caused by a manufacturer’s unreasonably dangerous product. Codling v. Paglia, 32 N.Y.2d 330, 340-41, 298 N.E.2d 622, 345 N.Y.S.2d 461 (1973). Because the law deems the manufacturer’s duty great and the injury inflicted serious, it bends privity of contract requirements to allow remote purchasers to sue the manufacturer. Id. But where plaintiff’s claim is simply that the product did not function properly, requiring its owner to incur costs of repair, then the only injury claimed is one for economic loss, which is not considered sufficiently severe to warrant the abrogation of the privity requirement. Schiavone Construction Co. v. Elgood Mayo Corp., 81" }, { "docid": "19916350", "title": "", "text": "under the Agreement ... the Court finds that the claim is nothing more than an attempt to dress up a breach of contract claim as a tort claim.”) (emphasis added), d. The Economic Loss Rule Defendants further assert that Plaintiffs’ fraud claims are precluded by the “economic loss rule.” The economic loss rule has been applied by the New York courts to restrict recovery on fraud claims by plaintiffs who have suffered “economic loss,” but not personal or property injury, “to an action for the benefit of their bargains.” Carmania Corp. v. Hambrecht Terrell Int’l, 705 F.Supp. 936, 938 (S.D.N.Y.1989). Pursuant to this rule, where a plaintiff seeks damages that are of the type “essentially contractual in nature,” a plaintiff may not recover in tort. See Hydro Investors v. Trafalgar Power Inc., 227 F.3d 8, 16 (2d Cir.2000). The rule has most frequently been invoked in the context of product liability, where “economic losses are essentially contractual in nature,” and risks for such harm are appropriately allocated by the parties through mechanisms such as warranties, insurance, and purchase price. See id. (citing 5th Ave. Chocolatiere, Ltd. v. 540 Acquisition Co., 272 A.D.2d 23, 712 N.Y.S.2d 8, 11 (App. Div. 1st Dep’t 2000)). Courts in this district have disagreed about whether the economic loss rule applies to fraud claims. Some district courts have concluded that the rule does not apply to fraud causes of action, noting that the New York courts have not explicitly applied the rule to bar such claims. See EED Holdings, 387 F.Supp.2d at 277-78; Dervin Corp. v. Banco Bilbao Vizcaya Argentaria, No. 03 Civ. 9141, 2004 WL 1933621, at *6 (S.D.N.Y. Aug.30, 2004); Computech Int’l, Inc. v. Compaq Computer Corp., No. 02 Civ. 2628, 2004 WL 1126320, at *10 (S.D.N.Y. May 21, 2004). Other courts, including this Court, have held that the economic loss rule may bar a fraud claim where the damages sought are essentially contractual, “benefit-of-the-bargain” damages rather than appropriate tort damages. See, e.g., Shred-It USA Inc. v. Mobile Data Shred, 222 F.Supp.2d 376, 379 (S.D.N.Y.2002) (holding that fraud claim was barred on several grounds," }, { "docid": "9892352", "title": "", "text": "Int’l Asset Fund, N.V., 205 F.Supp.2d 176, 182 (S.D.N.Y.2002) (denying dismissal that plaintiff had plead facts as to both elements of the veil-piercing claim); Rolls-Royce, 929 F.Supp. at 122 (same); Citicorp Int'l Trading Co. v. Western Oil & Ref. Co., 771 F.Supp. at 608 (same). . Defendants also cite two cases involving omissions of facts, see Elghanian v. Harvey, 249 A.D.2d 206, 206-07 671 N.Y.S.2d 266 (1st Dep’t 1998); Lesavoy v. Lane, 304 F.Supp.2d 520, 530 (S.D.N.Y.2004), in support of an argument that McKelvey had no duty to disclose PJI’s financial difficulties to Goldman/EED. Regardless of whether such a duty existed, this argument ignores the fact that EED’s fraud claim is premised on McKel-vey's affirmative misrepresentations. Furthermore, once McKelvey made claims as to PJI’s wherewithal, he was Obligated not to omit material facts. See Banque Arabe et Internationale D’Investissement v. Md. Nat’l Bank, 57 F.3d 146, 155 (2d Cir.1995) (\"In business negotiations, an affirmative duty to disclose material information may arise from the need to complete or clarify one party's partial or ambiguous statement.”). . The cases cited by defendants on this point all stand for the uncontroversial (and entirely irrelevant) proposition that the economic loss rule prevents the assertion of negligence or strict liability claims where plaintiff’s injury is purely economic. See PPI Enterprises (U.S.), Inc. v. Del Monte Foods Co., No. 99 Civ. 3794(BSJ), 2003 WL 22118977 at *27 (S.D.N.Y. Sept. 11, 2003) (dismissing negligence claim for failure to claim personal injury or property damage); Robehr Films, Inc. v. American Airlines, Inc., No. 85 CIV. 1072(RPP), 1989 WL 111079 (S.D.N.Y. Sept. 19, 1989) (denying motion to amend complaint to add negligence claim alleging economic loss only); Carmania Corp., 705 F.Supp. at 939 (dismissing malpractice and negligent misrepresentation claims based on pure economic loss); Schiavone, 56 N.Y.2d at 669, 436 N.E.2d at 1323, 451 N.Y.S.2d at 721 (reversing grant of leave to amend to add strict liability claim for pure economic injury)- . In G-I Holdings, this Court stated that, to sustain a claim for fraudulent inducement alongside a claim for breach of contract, one must plead any one" }, { "docid": "3895356", "title": "", "text": "also barred by the applicable law. As noted, Massachusetts law denies recovery in tort for economic loss. Likewise, the Supreme Court of Virginia, in answering questions certified to it by the United States Court of Appeals for the Fourth Circuit said the following: Tort law is not designed, however, to compensate parties for losses suffered as a result of a breach of duties assumed only by agreement. That type of compensation necessitates an analysis of the damages which were within the contemplation of the parties when framing their agreement. It remains the particular province of the law of contracts. Sensenbrenner v. Rust, Orling & Neale, 236 Va. 419, 374 S.E.2d 55, 58 (1988). The Supreme Court of Appeals of West Virginia has held that recovery for economic loss may be had in tort only when the damage is attributable to a sudden calamitous event. Anderson v. Chrysler Corp., 403 S.E.2d 189 (W.Va.1991), citing Star Furniture Co. v. Pulaski Furniture Co., 171 W.Va. 79, 297 S.E.2d 854 (1982). The West Virginia Court held that “in order to recover under Star Furniture, the damage to the product must result from a sudden calamitous event attributable to the dangerous defect or design of the product itself.” 403 S.E.2d at 191, citing Capitol Fuels, Inc. v. Clark Equipment Co., 382 S.E.2d 311 (W.Va.1989). Thus, under the law of Virginia, West Virginia, Maryland, Delaware, Pennsylvania, New Jersey, and Massachusetts, the tort claims asserted in this case by Amtrak, CSX, and the MBTA are barred. In addition, Metro-North’s tort claims are barred under New York law. In Schiavone Construction Co. v. Elgood Mayo Corp., 81 A.D.2d 221, 232, 439 N.Y.S.2d 933, 939 (1st Dep’t.1981) (Silverman, J., dissenting), dissent adopted on appeal, 56 N.Y.2d 667, 451 N.Y.S.2d 720, 436 N.E.2d 1322 (1982), Judge Silverman stated: the rationale behind strict liability in personal injury situations is not well-suited to claims alleging only economic loss. Economic loss results from the failure of the product to perform to the level expected by the buyer and the seller. This reasoning was expressly adopted by the New York Court of Appeals, which" }, { "docid": "19916349", "title": "", "text": "see also, EED Holdings v. Palmer Johnson Acquisition Corp., 387 F.Supp.2d 265, 279 (S.D.N.Y.2004). The Second Circuit also applied this rule in Cohen v. Koenig, where the Circuit Court held that a defendant’s alleged intentional overstatements of its net income and the value of its current assets, which induced entry into a contract, were actionable as fraud. See 25 F.3d 1168, 1172 (2d Cir.1994). Similarly, in EED Holdings, the court held that misrepresentations concerning the “present condition of defendant’s finances and operations” that induced entry into a contract were actionable as fraud. 387 F.Supp.2d at 279. As in Cohen and EED Holdings, Defendants’ alleged false statements concerning the Corporations’ financial condition are false statements of “present fact” that allegedly induced Plaintiffs’ entry into the Agreements. According, these allegations support a fraud claim. See Deerfield, 510 N.Y.S.2d 88, 502 N.E.2d at 1004; Cohen, 25 F.3d at 1172; EED Holdings, 387 F.Supp.2d at 279. But see, Best Western, 1994 WL 465905, at *5 (“Because the representations at issue concern nothing more than ability and willingness to perform under the Agreement ... the Court finds that the claim is nothing more than an attempt to dress up a breach of contract claim as a tort claim.”) (emphasis added), d. The Economic Loss Rule Defendants further assert that Plaintiffs’ fraud claims are precluded by the “economic loss rule.” The economic loss rule has been applied by the New York courts to restrict recovery on fraud claims by plaintiffs who have suffered “economic loss,” but not personal or property injury, “to an action for the benefit of their bargains.” Carmania Corp. v. Hambrecht Terrell Int’l, 705 F.Supp. 936, 938 (S.D.N.Y.1989). Pursuant to this rule, where a plaintiff seeks damages that are of the type “essentially contractual in nature,” a plaintiff may not recover in tort. See Hydro Investors v. Trafalgar Power Inc., 227 F.3d 8, 16 (2d Cir.2000). The rule has most frequently been invoked in the context of product liability, where “economic losses are essentially contractual in nature,” and risks for such harm are appropriately allocated by the parties through mechanisms such as warranties," }, { "docid": "19916351", "title": "", "text": "insurance, and purchase price. See id. (citing 5th Ave. Chocolatiere, Ltd. v. 540 Acquisition Co., 272 A.D.2d 23, 712 N.Y.S.2d 8, 11 (App. Div. 1st Dep’t 2000)). Courts in this district have disagreed about whether the economic loss rule applies to fraud claims. Some district courts have concluded that the rule does not apply to fraud causes of action, noting that the New York courts have not explicitly applied the rule to bar such claims. See EED Holdings, 387 F.Supp.2d at 277-78; Dervin Corp. v. Banco Bilbao Vizcaya Argentaria, No. 03 Civ. 9141, 2004 WL 1933621, at *6 (S.D.N.Y. Aug.30, 2004); Computech Int’l, Inc. v. Compaq Computer Corp., No. 02 Civ. 2628, 2004 WL 1126320, at *10 (S.D.N.Y. May 21, 2004). Other courts, including this Court, have held that the economic loss rule may bar a fraud claim where the damages sought are essentially contractual, “benefit-of-the-bargain” damages rather than appropriate tort damages. See, e.g., Shred-It USA Inc. v. Mobile Data Shred, 222 F.Supp.2d 376, 379 (S.D.N.Y.2002) (holding that fraud claim was barred on several grounds, including the economic loss rule); Orlando v. Novurania of America, Inc., 162 F.Supp.2d 220, 225-26 (S.D.N.Y.2001) (holding that a fraudulent inducement claim was precluded under the economic loss rule where the plaintiff was “attempting solely to recover for the alleged loss of the benefit of his bargain”). While the Second Circuit has not explicitly addressed whether fraud claims are exempted from the economic loss rule, the Circuit Court has emphasized the principle that a plaintiff cannot sustain a fraud claim where no characteristically tort damages are alleged. See, e.g., Fort Howard Paper Co. v. William D. Witter, Inc., 787 F.2d 784, 794 (2d Cir.1986); see also, Bruce v. Martin, No. 90 Civ. 0870,1993 WL 148904, at *5 (S.D.N.Y. April 30, 1993). In Fort Howard, for example,- the Circuit Court held that the plaintiff stated a separate fraud claim on the ground that plaintiff sought to recover out-of-pocket damages as well as the benefit of his bargain. See 787 F.2d at 794. Similarly, in Bruce, the court emphasized that to state a claim for fraud, a" }, { "docid": "9892353", "title": "", "text": "The cases cited by defendants on this point all stand for the uncontroversial (and entirely irrelevant) proposition that the economic loss rule prevents the assertion of negligence or strict liability claims where plaintiff’s injury is purely economic. See PPI Enterprises (U.S.), Inc. v. Del Monte Foods Co., No. 99 Civ. 3794(BSJ), 2003 WL 22118977 at *27 (S.D.N.Y. Sept. 11, 2003) (dismissing negligence claim for failure to claim personal injury or property damage); Robehr Films, Inc. v. American Airlines, Inc., No. 85 CIV. 1072(RPP), 1989 WL 111079 (S.D.N.Y. Sept. 19, 1989) (denying motion to amend complaint to add negligence claim alleging economic loss only); Carmania Corp., 705 F.Supp. at 939 (dismissing malpractice and negligent misrepresentation claims based on pure economic loss); Schiavone, 56 N.Y.2d at 669, 436 N.E.2d at 1323, 451 N.Y.S.2d at 721 (reversing grant of leave to amend to add strict liability claim for pure economic injury)- . In G-I Holdings, this Court stated that, to sustain a claim for fraudulent inducement alongside a claim for breach of contract, one must plead any one of the following: (i) a legal duty separate from the duty to perform under the contract; or (ii) a fraudulent misrepresentation collateral or extraneous to the contract; or (iii) special damages that are caused by the misrepresentation and unrecoverable as contract damages. 179 F.Supp.2d at 269 (emphasis added) (citing Blank v. Baronowski, 959 F.Supp. 172, 180 (S.D.N.Y.1997)). . The Kimmell court made clear that the vast majority of arms-length commercial transactions, which are comprised of “casual statements and contacts” will not give rise to negligent misrepresentation claims. See Kimmell, 89 N.Y.2d at 263, 652 N.Y.S.2d at 719, 675 N.E.2d at 454. Since Kimmell, New York courts have followed the general rule of non-actionability for negligent misstatements made in the context of arms-length business transactions. See, e.g., Sheridan v. Trustees of Columbia Univ., 296 A.D.2d 314, 316, 745 N.Y.S.2d 18, 19 (1st Dep’t 2002) (negligent misrepresentation claim dismissed \"since, at the time of the alleged misrepresentation, the parties were clearly acting at arm's length”), leave to appeal denied, 99 N.Y.2d 505, 755 N.Y.S.2d 711, 785 N.E.2d" }, { "docid": "9892333", "title": "", "text": "statements are not actionable merely because they turn out to be misguided); Highlands Insurance Co. v. PRG Brokerage, Inc., No. 01 Civ. 2272(GBD), 2004 WL 35439, *3, 2004 U.S. Dist. LEXIS 83, at *12 (S.D.N.Y. Jan. 5, 2004) (holding that defendants’ promises concerning future profitability are not actionable as fraud under New York law); Sheth v. New York Life Insurance Co., 273 A.D.2d 72, 74, 709 N.Y.S.2d 74, 75 (1st Dep’t 2000) (holding that claims based on “conclusory” statements and opinions of “future expectations” are not actionable as fraud); Quasha, 171 A.D.2d 537, 567 N.Y.S.2d 257 (holding that statements concerning “hopes for the future of the company” are not actionable as fraud). In short, McKelvey’s specific misrepresentations concerning the wherewithal of PJI is a proper basis for a fraud claim. 2. The Fraud Claim Does Not Violate the Economic Loss Rule New York’s economic loss rule restricts “plaintiffs who have suffered ‘economic loss,’ but not personal or property injury, to an action for the benefits of their bargain. If the damages suffered are of the type remediable in contract, a plaintiff may not recover in tort.” Carmania Corp., N.V. v. Hambrecht Terrell Int'l, 705 F.Supp. 936, 938 (S.D.N.Y.1989); see also Schiavone Constr. Co. v. Elgood Mayo Corp., 56 N.Y.2d 667, 669, 436 N.E.2d 1322, 1323, 451 N.Y.S.2d 720, 721 (1982) (holding that under the economic loss rule, if an alleged product malfunction is alleged to have caused purely economic loss, then the end-purchaser is limited to contract claims against the manufacturer and may not seek damages in tort). McKelvey argues that pursuant to the economic loss rule, plaintiff cannot assert a fraud claim alongside a contract claim unless personal injury or property damage has been alleged. In support of this premise, McKelvey relies heavily on a single decision from this district, Orlando v. Novurania of Am., Inc., 162 F.Supp.2d 220, 225 (S.D.N.Y.2001). In Orlando, the disappointed buyer of a boat that developed cracks in its hull sued the seller/manufacturer, asserting, inter alia, both contract and fraud claims. With regard to the fraud claim, the plaintiff alleged that the defendant’s false" }, { "docid": "9892334", "title": "", "text": "type remediable in contract, a plaintiff may not recover in tort.” Carmania Corp., N.V. v. Hambrecht Terrell Int'l, 705 F.Supp. 936, 938 (S.D.N.Y.1989); see also Schiavone Constr. Co. v. Elgood Mayo Corp., 56 N.Y.2d 667, 669, 436 N.E.2d 1322, 1323, 451 N.Y.S.2d 720, 721 (1982) (holding that under the economic loss rule, if an alleged product malfunction is alleged to have caused purely economic loss, then the end-purchaser is limited to contract claims against the manufacturer and may not seek damages in tort). McKelvey argues that pursuant to the economic loss rule, plaintiff cannot assert a fraud claim alongside a contract claim unless personal injury or property damage has been alleged. In support of this premise, McKelvey relies heavily on a single decision from this district, Orlando v. Novurania of Am., Inc., 162 F.Supp.2d 220, 225 (S.D.N.Y.2001). In Orlando, the disappointed buyer of a boat that developed cracks in its hull sued the seller/manufacturer, asserting, inter alia, both contract and fraud claims. With regard to the fraud claim, the plaintiff alleged that the defendant’s false representations prior to the time that the sales contract was entered induced the purchase of the boat. The Orlando court held that plaintiffs fraud claim, which it determined to be “separate and distinct” from the contract claim, id. at 225, was nonetheless barred by New York’s economic loss rule. However, the Orlando court failed to identify any New York cases addressing the applicability of the economic loss rule to a fraud claim. Rather, it reasoned that since New York courts had failed to carve out any applicable exceptions to the rule, it must be interpreted to bar a fraud claim for pure economic loss. Id. at 226. This Court has previously declined to adopt the Orlando court’s reasoning, holding instead that “[i]n the absence of any articulation to the contrary by the New York courts, the economic loss doctrine will not be presumed to extend to fraud claims.” Computech Int’l Inc. v. Compaq Computers Corp., No. 02 Civ. 2628(RWS), 2004 WL 1126320 at *10 (S.D.N.Y. May 21, 2004) (observing that “[t]he parties have not cited" }, { "docid": "22197364", "title": "", "text": "negligent acts by the plaintiffs — e.g., Steckler’s decision to purchase large turbines despite Dunlevy’s November 1986 suggestion that smaller turbines might be purchased in anticipation of lower flows, or TPI’s decision not to excavate the tailrace at Ogdensburg — is adequately accounted for by the jury’s special verdict apportioning 20% of the liability to the plaintiffs in comparative fault and in the consequent pro rata reduction of the plaintiffs’ damages award. II. The Economic Loss Rule Stetson-Harza and Dunlevy contend that the district court improperly per mitted TPI to obtain a damage award based on “lost revenues” in violation of the economic loss rule found in New York cases. They posit that even if the evidence supported a finding of professional malpractice, the damages awarded below reflect the quintessential expectation damages found in breach of contract actions as opposed to the compensatory awards customarily found in tort actions. In response, TPI contends that the appellants waived this argument by failing to raise it before the trial court and that TPI’s professional malpractice claim falls within the narrow category of claims exempt from the New York economic loss restriction. We begin by addressing TPI’s argument that Stetson-Harza and Dunlevy waived this issue by failing to raise it below. While the appellants may very well have waived this contention by failing to raise it below, see Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321, 332 (2d Cir.2000) (“Commander Oil argues that it is entitled to contractual indemnification from Bario.... However, Commander Oil failed to raise the issue below in a timely manner and it is therefore waived for purposes of this appeal.”); Austin-Westshore Constr. Co. v. Federated Dep’t Stores, Inc., 934 F.2d 1217, 1222-23 (11th Cir.1991), we find it unnecessary to resolve the argument here because, even assuming arguendo that they may raise the argument here, we find no merit in it. The economic loss rule was adopted by the New York Court of Appeals in Schiavone Construction Co. v. Elgood Mayo Corp., 56 N.Y.2d 667, 668-69, 451 N.Y.S.2d 720, 436 N.E.2d 1322 (1982), rev’g on dissent below, 81" } ]

[ { "docid": "10580565", "title": "", "text": "worth requirement of section 7430(c)(4)(A)(iii), (3) it has substantially prevailed with respect to the amount in controversy or most significant issues, and (4) the position of respondent was “not substantially justified”. Sec. 7430. Respondent concedes that petitioners satisfy conditions (1) through (3), leaving for decision the issue of substantial justification for respondent’s position; i.e., whether it had a reasonable basis in both law and fact. Estate of Wall v. Commissioner, 102 T.C. 391, 393 (1994). The determination of the reasonableness of respondent’s position is based on all the facts and circumstances. See Don Casey Co. v. Commissioner, 87 T.C. 847, 858 (1986). If that question is resolved in favor of petitioners, there is a further question as to the amount of the litigation costs and their allocation between petitioners. As far as we can determine, the dispute as to the qualification of the retirement plans turned on several elements: (1) The reasonableness of the actuarial assumptions, (2) the effect of a retroactive plan amendment, and (3) the proper year for deducting the contributions. We have not been furnished with any elaboration of the reasons upon which the positions of the parties on these elements are founded, so that a thorough evaluation of the substantive merits of respondent’s position is not possible on the record before us. In so stating, we are not suggesting that a full-blown trial of a conceded significant issue is necessary in order to determine respondent’s responsibility for litigation costs under section 7430. However, it is clear that the information presented to us, particularly in respect of respondent’s position on the retroactive amendment issue, falls far short of the minimum required to enable us to make such an evaluation. In any event, we need not concern ourselves with the foregoing considerations because the parties have focused their arguments on whether respondent’s position on the element of the reasonableness of the actuarial assumptions “was not substantially justified” should be controlled by decisions in four cases involving the same element. Wachtell, Lipton, Rosen & Katz v. Commissioner, T.C. Memo. 1992-392 (July 14, 1992), on appeal (2d Cir., May 12," } ]

[ { "docid": "18929128", "title": "", "text": "our holding in this case. Moreover, after this case was submitted, the Eighth Circuit, the court to which any appeal would lie, approved the Tax Court’s approach. Berks v. United States, supra; Wickert v. Commissioner, supra. There are numerous Memorandum Opinions of this Court where we have examined all of the facts and circumstances and found reasonable various periods of time to investigate the case and decide whether to concede. See for example Hubscher v. Commissioner, T.C. Memo. 1988-428; Coffey v. Commissioner, T.C. Memo. 1988-78; Shifman v. Commissioner, T.C. Memo. 1987-347; Rouffy v. Commissioner, T.C. Memo. 1987-5. We leave to another day the situation where the determination has been made in the first instance by the Internal Revenue Service under new sec. 7430(c)(4)(B)(i) and appealed to the Tax Court under new sec. 7430(f)(2). That is not the situation now before us. We are not suggesting that a taxpayer’s additional expenses in preparing and pursuing his motion for an award of reasonable litigation costs cannot be considered if he is otherwise entitled to recover litigation costs. The costs incurred in seeking an award of litigation costs may be included in the award. See Rogers v. Commissioner, T.C. Memo. 1987-374. In other words, if “the position of the United States in the civil proceeding” is unreasonable or not substantially justified and the taxpayer otherwise meets the conditions to be a “prevailing party,” the taxpayer may recover both the costs for the litigation and for the motion for award of reasonable litigation costs. We again need not reach the question as to whether a further reasonableness standard is also to be applied to respondent’s position in regard to litigation costs. See Rogers v. Commissioner, supra, and Lee v. Johnson, 799 F.2d 31, 39-40 (3d Cir. 1986), rehearing denied 801 F.2d 115 (3d Cir. 1986). See Cupp v. Commissioner, 65 T.C. 68, 83 (1975), affd. without published opinion 559 F.2d 1207 (3d Cir. 1977); Cataldo v. Commissioner, 60 T.C. 522, 523 (1973), affd. per curiam 499 F.2d 550 (2d Cir. 1974). While such a meeting or administrative hearing at the administrative stage might have" }, { "docid": "10896798", "title": "", "text": "primary purpose and objective of making a profit in order to fully deduct expenses under either section 162 or section 212 (Golanty v. Commissioner, 72 T.C. 411, 425 (1979), affd. without published opinion 647 F.2d 170 (9th Cir. 1981)) and to claim investment credits under section 38. Pike v. Commissioner, 78 T.C. 822, 841-842 (1982). \"While a reasonable expectation of profit is not required, the taxpayer’s profit objective must be bona fide.” Fox v. Commissioner, 80 T.C. 972, 1006 (1983), affd. by order 742 F.2d 1441 (2d Cir. 1984), affd. sub nom. Barnard v. Commissioner, 731 F.2d 230 (4th Cir. 1984), affd. without published opinion sub nom. Kratsa v. Commissioner, 734 F.2d 6 (3d Cir. 1984), affd. without published opinion sub nom. Hook v. Commissioner, 734 F.2d 5 (3d Cir. 1984); Dreicer v. Commissioner, 78 T.C. 642, 644-645 (1982), affd. without opinion 702 F.2d 1204 (D.C. Cir. 1983). The issue of whether a taxpayer engages in an activity with the requisite objective of making a profit is one of fact to be resolved on the basis of all the facts and circumstances. Lemmen v. Commissioner, 77 T.C. 1326, 1340 (1981). The burden of proving the requisite intention is on petitioners. Sabelis v. Commissioner, 37 T.C. 1058, 1062 (1962); Rule 142(a). Section 183 allows deductions for ordinary and necessary expenses arising from an activity not engaged in for profit only to the extent of gross income derived from such activity, less the amount of those deductions which are allowable regardless of whether or not the activity is engaged in for profit. Section 1.183-2(b), Income Tax Regs., lists some of the relevant factors to be considered in determining whether an activity is \"not engaged in for profit.” These factors include: (1) The manner in which the taxpayer carries on the activity; (2) the expertise of the taxpayer or his advisers; (3) the time and effort expended by the taxpayer in carrying on the activity; (4) the expectation that assets used in the activity may appreciate in value; (5) the success of the taxpayer in carrying on other similar or dissimilar activities; (6)" }, { "docid": "17764764", "title": "", "text": "year in which it becomes wholly worthless. Dustin v. Commissioner, 53 T.C. 491, 501 (1969), affd. 467 F.2d 47, 48 (9th Cir. 1972). Also, only a bona fide debt qualifies for purposes of section 166. A bona fide debt is a debt which arises under a debtor-creditor relationship based on a valid and enforceable obligation to pay a fixed or determinable sum of money. A gift or contribution to capital is not considered to create a debt for purposes of section 166. Matter of Uneco, Inc., 532 F.2d 1204, 1207 (8th Cir. 1976); Wortham Machinery Co. v. United States, 521 F.2d 160, 164 (10th Cir. 1975); sec. 1.166-1(c), Income Tax Regs. We must decide whether Urban is entitled to a bad debt deduction under section 166(a)(1) for the unpaid balance of non-interest-bearing “open account” transfers to or on behalf of related companies, most of which transfers were made during the last AVz months of 1975. The resolution of this question turns on the proper characterization of the transfers, petitioners contending that they represent bona fide debts and respondent disagreeing, asserting that the advances were made without reasonable expectation of repayment. Our focus is directed to a determination of the true nature of the financial arrangement among Urban, Mesa, and the PRC Group. The decided cases considering the question whether a purported debt is in fact a debt for tax purposes set forth various tests and criteria; in the final analysis, however, the question depends on the facts and circumstances of each case, with the taxpayer bearing the burden of proof. E.g., Segel v. Commissioner, 89 T.C. 816, 826-827 (1987), and cases cited therein; Malone & Hyde, Inc. v. Commissioner, 49 T.C. 575, 578 (1968). We must examine the facts before us in light of “the realities of the business world and the manner in which transactions are handled in the normal and ordinary course of doing business.” Malone & Hyde, Inc. v. Commissioner, supra. However, we recognize that the relationships among Urban, Mesa, and the PRC Group “are subject to particular scrutiny ‘because the control element suggests the opportunity to" }, { "docid": "18143048", "title": "", "text": "* [the IRS] made a reasonable determination, on the basis of the partnership return, that the TEFRA procedures do not apply. While * * * [the IRS] could have considered such a statement in making * * * [its] determination, there is no authority for binding * * * [the IRS] to such a statement when the partnership return also provided a statement that there was at least one pass-thru partner. Then, in respondent’s response to petitioners’ allegations of fraud (i.e., respondent’s apology to the Court), respondent made the bold claim: Respondent has consistently taken the position that * * * [the] Stone Canyon Partnership is subject to the TEFRA provisions of the Code. Needless to say, respondent’s claim is simply not true. In short, the IRS has been less than open and candid with both the Bedrosians and this Court. The opinion of the Court concludes that the IRS’ conduct has no bearing on the outcome of this case. The opinion of the Court contends that “the Schedules K — l that were included with and are part of the partnership return make it clear that the partnership must have been subject to TEFRA as a matter of law” and that “the only reasonable conclusion is that TEFRA applies to Stone Canyon.” See op. Ct. p. 111. I respectfully disagree. I do not believe the opinion of the Court’s bright-line test is appropriate. The opinion of the Court seems to mistakenly equate the term “reasonable” with the term “correct”. If every incorrect determination were also found to be unreasonable, then section 6231(g)(2) would serve no purpose. Section 6231(g)(2), by its terms, applies only if a determination is both incorrect and reasonable. I believe the question of reasonableness is most appropriately determined under all of the facts and circumstances. See, e.g., Pac. Grains, Inc. v. Commissioner, 399 F.2d 603, 606 (9th Cir. 1968) (stating that the reasonableness of compensation is a question of fact to be determined on the basis of all the facts and circumstances), aff’g T.C. Memo. 1967-7; Patel v. Commissioner, 138 T.C. 395, 417 (2012) (stating that" }, { "docid": "4860562", "title": "", "text": "the initial release. The Commissioner’s 8-year useful life was based upon the maturity of the long-term notes in 1986; we find such maturity date of no relevance to the useful life, of Shelburne’s contract rights. Based upon the record as a whole, our best judgment is that 6 years is a reasonable useful life for Shelburne’s contract rights. The next question for our determination concerns the basis of depreciation of Balmoral’s and Shelburne’s contract rights. In general, the basis of property is the cost of such property. Detroit Edison Co. v. Commissioner, 319 U.S. 98 (19.43); secs. 167(g), 1012. When debt principal is payable solely out of exploitation proceeds, nonrecourse loans are contingent obligations and are not treated as true debt. Estate of Baron v. Commissioner, 83 T.C. 542, 550-553 (1984), affd. 798 F.2d 65 (2d Cir. 1986); Fox v. Commissioner, 80 T.C. 972, 1022-1023 (1983), affd. without published opinion 742 F.2d 1441 (2d Cir. 1984), affd. without published opinion sub nom. Hook v. Commissioner, Kratsa v. Commissioner, Leffel v. Commissioner, Rosenblatt v. Commissioner, Zemel v. Commissioner, 734 F.2d 5-7, 9 (3d Cir. 1984), affd. sub nom. Barnard v. Commissioner, 731 F.2d. 230 (4th Cir. 1984); Saviano v. Commissioner, 80 T.C. 955 (1983), affd. 765 F.2d 643 (7th Cir. 1985). When a transaction is structured in such a manner, that payment by the taxpayer is not probable, either because of the length or the terms of the debt, the source of the payments, or any other arrangement which does not provide an economic incentive for the taxpayer to pay the debt, then such debt is not genuine indebtedness to be taken into account for purposes of determining a taxpayer’s investment in property. See Tolwinsky v. Commissioner, 86 T.C. at 1048-1050. Such a debt does not reflect an actual investment in property and cannot be included in the taxpayer’s depreciable basis. Siegel v. Commissioner, 78 T.C. at 684-691; Brannen v. Commissioner, 78 T.C. 471 (1982), affd. 722 F.2d 695 (11th Cir. 1984); Estate of Franklin v. Commissioner, 64 T.C. 752 (1975), affd. 544 F.2d 1045 (9th Cir. 1976). The Commissioner contends" }, { "docid": "15191221", "title": "", "text": "Cir. 1988); Harvey v. Commissioner, T.C. Memo. 1986-381; Sanders v. Commissioner, T.C. Memo. 1984-511, affd. without published opinion 770 F.2d 174 (11th Cir. 1985). See G.W. Van Keppel Co. v. Commissioner, 295 F.2d 767, 771 (8th Cir. 1961); Highland Hills Swimming Club, Inc. v. Wiseman, 272 F.2d 176, 179 (10th Cir. 1959); Buddy Schoellkopf Products, Inc. v. Commissioner, 65 T.C. 640, 656 (1975) (dealing with the same factual issue in the context of the determination whether depreciation is to be taken over the lease term or over the useful life of an improvement to leased property). The duration of the lease is decided based on the “ ‘realistic contemplation’ of the parties at the time the lease was entered into.” Harvey v. Commissioner, T.C. Memo. 1986-381, quoting Hokanson v. Commissioner, 730 F.2d 1245, 1248 (9th Cir. 1984), affg. a Memorandum Opinion of this Court. Consequently, if it appears that the substance of the transaction is that the lessee will continue leasing the property beyond the period stated in the lease, then the specified lease term is disregarded and the lease is considered to be of indefinite length. Harvey v. Commissioner, T.C. Memo. 1986-381; Sanders v. Commissioner, T.C. Memo. 1984-511; Peterson v. Commissioner, T.C. Memo. 1982-442; see G.W. Van Keppel Co. v. Commissioner, 295 F.2d at 771. The types of facts and circumstances which have in the past aided us in determining whether a lease term was indefinite are as follows: (1) An established practice on the part of the lessor of buying equipment for lease in order to meet the special needs of the lessee (Connor v. Commissioner, T.C. Memo. 1987-223, affd. 847 F.2d 985 (1st Cir. 1988); Harvey v. Commissioner; T.C. Memo. 1986-381; Sanders v. Commissioner, T.C. Memo. 1984-511; Peterson v. Commissioner, T.C. Memo. 1982-442); (2) the lessor has control of the lessee (Harvey v. Commissioner, supra; Sanders v. Commissioner, supra; Peterson v. Commissioner, supra); (3) the lessor leased only to the controlled lessee (Harvey v. Commissioner, supra; Sanders v. Commissioner, supra); (4) the lessee leased only from the lessor (Sanders v. Commissioner, supra; Peterson v. Commissioner, supra); (5)" }, { "docid": "20077223", "title": "", "text": "the Code, the term \"deduction” is used to refer to amounts subtracted from gross income to arrive at taxable income. Curtis Gallery & Library, Inc. v. United States, 388 F.2d 358, 361 (9th Cir. 1967); B.C. Cook & Sons, Inc. v. Commissioner, 65 T.C. 422, 428-432 (1975), affd. per curiam 584 F.2d 53 (5th Cir. 1978), and cases cited therein; National Home Products, Inc. v. Commissioner, 71 T.C. 501 (1979). Such distinction was recognized in Max Sobel Wholesale Liquors v. Commissioner, 69 T.C. 477 (1977), affd. 630 F.2d 670 (9th Cir. 1980). In that case, the taxpayer, in violation of State law, made sales of liquor and wine to selected customers at posted prices with the understanding that such customers would receive a credit to be used for future purchases or an additional bottle of each case purchased. As the additional bottles were delivered, their cost was charged to the cost of goods sold. Section 162(c)(2) disallows a deduction for an \"illegal bribe, illegal kickback, or other illegal payment” otherwise deductible under section 162(a). However, we held that such limitation was not applicable because the cost of the additional bottles was a part of the cost of goods sold. 69 T.C at 484-486. See also Pittsburgh Milk Co. v. Commissioner, 26 T.C. 707 (1956). Similarly, in National Home Products, Inc. v. Commissioner, supra, we determined that casualty losses of inventories are not deductions subject to the \"reasonable prospect of recovery test” contained in section 1.165-1 (d)(2)(i) of the regulations, which determines the year of deductibility of casualty losses under section 165. The Commissioner had argued that it would be inconsistent to allow inventory losses to be reflected in the cost of goods sold for a year at the end of which there was a reasonable prospect of recovery of such losses while other losses would be disallowed under similar circumstances. We disagreed, stating that \"This is simply recognition of the fact that use of inventories in computing gross income for both book and tax purposes is unique and warrants use of different rules to correctly reflect income.” 71 T.C. at" }, { "docid": "19361289", "title": "", "text": "item within the meaning of section 6231(a)(5) and accompanying regulations is incorrect as a matter of law. Petitioner’s motion further alleges that, even if the section 469 issue is an affected item, the Court nevertheless should have ordered respondent to refund overpayments of taxes paid for 1989 and 1990, as well as overpayments for 1987 and 1988, based on the “proper” computational adjustments to petitioners’ returns which respondent should have made after the conclusion of the partnership level proceeding. Lastly, petitioners’ motion alleges that we inconsistently decided that the section 469 issue constitutes an affected item for 1989 and 1990 but is not an affected item for 1987 and 1988. Respondent has filed an objection to petitioners’ motion, together with a supporting memorandum of law. Reconsideration under Rule 161 serves the limited purpose of correcting substantial errors of fact or law and allows the introduction of newly discovered evidence that the moving party could not have introduced, by the exercise of due diligence, in the prior proceeding. Westbrook v. Commissioner, 68 F.3d 868, 879-880 (5th Cir. 1995), affg. per curiam T.C. Memo. 1993-634; see Lucky Stores, Inc. v. Commissioner, T.C. Memo. 1997-70, affd. without published opinion 116 F.3d 1476 (4th Cir. 1997); Estate of Scanlan v. Commissioner, T.C. Memo. 1996-414. The granting of a motion for reconsideration rests with the discretion of the Court, and we usually do not exercise our discretion absent a showing of unusual circumstances or substantial error. CWT Farms, Inc. v. Commissioner, 79 T.C. 1054, 1057 (1982), affd. 755 F.2d 790 (11th Cir. 1985). Reconsideration is not the appropriate forum for rehashing previously rejected legal arguments or tendering new legal theories to reach the end result desired by the moving party. Stoody v. Commissioner, 67 T.C. 643, 644 (1977); Estate of Scanlan v. Commissioner, supra. Petitioners’ argument that the section 469 issue cannot be an affected item for purposes of the applicability of tefra’s audit and litigation provisions was raised previously and received thorough consideration by this Court. Estate of Quick v. Commissioner, supra. Petitioners’ motion does not evince any unusual circumstances or substantial error with" }, { "docid": "16803355", "title": "", "text": "and not deductible under section 162(a)(1). Further, respondent has determined that this excess is not earned income for maximum tax purposes within the meaning of section 1348. To the contrary, petitioners argue that the compensation was paid James for valuable services, under a long-standing incentive arrangement which was valid and reasonable at the time of its creation after arm’s-length negotiations. In the alternative, petitioners contend that the entire amount was paid to James for services rendered and, thus, qualifies as earned income within the meaning of section 1348, even if a portion of it is found unreasonable. OPINION 1. Reasonable Compensation The deductibility of the compensation paid James depends upon the meaning of section 162(a)(1), which allows a deduction for compensation which was actually intended to be paid for the services actually rendered and which was reasonable for those services. Sec. 1.162-7, Income Tax Regs.; Nor-Cal Adjusters v. Commissioner, 503 F.2d 359, 362 (9th Cir. 1974), affg. a Memorandum Opinion of this Court; Electric & Neon, Inc. v. Commissioner, 56 T.C. 1324, 1340 (1971), affd. without opinion 496 F.2d 876 (5th Cir. 1974); Klamath Medical Service Bureau v. Commissioner, 29 T.C. 339, 347 (1957), affd. 261 F.2d 842 (9th Cir. 1958), cert. denied 359 U.S. 966 (1959). Discerning the intent behind the compensation presents a question of fact, to be determined from all the facts and circumstances of the particular case. Paula Construction Co. v. Commissioner, 58 T.C. 1055, 1059 (1972), affd. without opinion 474 F.2d 1345 (5th Cir. 1973); Electric & Neon, Inc. v. Commissioner, supra. Reasonableness of the compensation amount also presents a factual question to be resolved within the bounds of the individual case. Charles Schneider & Co. v. Commissioner, 500 F.2d 148, 151 (8th Cir. 1974), affg. a Memorandum Opinion of this Court, cert. denied 420 U.S. 908 (1975); Pacific Grains, Inc. v. Commissioner, 399 F.2d 603, 605 (9th Cir. 1968), affg. a Memorandum Opinion of this Court; Levenson & Klein, Inc. v. Commissioner, 67 T.C. 694, 711 (1977); Pepsi-Cola Bottling Co. of Salina v. Commissioner, 67 T.C. 564, 567 (1974), affd. 528 F.2d 176 (10th" }, { "docid": "14679664", "title": "", "text": "Whether petitioners engaged in the Amway distributorship for profit depends on whether the activity was undertaken with an “actual and honest objective” of making a profit. Fuchs v. Commissioner, 83 T.C. 79, 98 (1984); Dreicer v. Commissioner, 78 T.C. 642, 646 (1982), affd. without opinion 702 F.2d 1205 (D.C. Cir. 1983). While a reasonable expectation of a profit is not required, petitioners must have entered into the activity, or continued it, with the objective of making a profit. Golanty v. Commissioner, 72 T.C. 411 (1979), affd. without opinion 647 F.2d 170 (9th Cir. 1981); Engdahl v. Commissioner, 72 T.C. 659, 666 (1979); Bessenyey v. Commissioner, 45 T.C. 261, 274 (1965), affd. 379 F.2d 252 (2d Cir. 1967), cert. denied 389 U.S. 931 (1967). Furthermore, transactions which serve no “purpose, substance, or utility apart from their anticipated tax consequences” are disregarded for tax purposes. Knetsch v. Commissioner, 364 U.S. 361 (1960); Goldstein v. Commissioner, 364 F.2d 734, 740 (2d Cir. 1966), affg. 44 T.C. 284 (1965). The determination of whether a profit motive exists is to be resolved on the basis of all the extenuating facts and circumstances. Elliott v. Commissioner, 84 T.C. 227, 236 (1985), affd. without published opinion 782 F.2d 1027 (3d Cir. 1986); Golanty v. Commissioner, supra at 426. Although section 183 is an allowance provision, not a disallowance provision, respondent’s regulations promulgated under that section have historically been employed to facilitate the determination of the existence of a profit motive. Respondent’s regulations set forth nine relevant factors. Sec. 1.183-2(b), Income Tax Regs. No single factor is control ling. Golanty v. Commissioner, supra at 425-426. In this analysis, greater weight is accorded to proved objective facts than to mere statements of intent. Beck v. Commissioner, 85 T.C. 557, 570 (1985); Siegel v. Commissioner, 78 T.C. 659, 699 (1982). Respondent disallowed all the deductions taken by petitioners on both the original and the revised Schedules C. Respondent contends that petitioners did not engage in the Amway activity to make a profit but, instead, were chiefly interested in increasing the deductions they could claim. Respondent also argues that the items" }, { "docid": "10593426", "title": "", "text": "settlement agreement in light of the surrounding circumstances. Knuckles v. Commissioner, 349 F.2d 610, 613 (10th Cir. 1965), affg. T.C. Memo. 1964-33; Stocks v. Commissioner, supra at 10; Seay v. Commissioner, supra at 37; Miller v. Commissioner, T.C. Memo. 1993-49 (on remand), supplemented by T.C. Memo. 1993-588. A key question to ask is: “In lieu of what were the damages awarded?” Raytheon Production Corp. v. Commissioner, 144 F.2d 110, 113 (1st Cir. 1944) (quoting Farmers’ Merchants’ Bank v. Commis sioner, 59 F.2d 912 (6th Cir. 1931); emphasis added), affg. 1 T.C. 952 (1943); see also Getty v. Commissioner, 913 F.2d 1486, 1490 (9th Cir. 1990), revg. 91 T.C. 160 (1988); Church v. Commissioner, supra at 1107. When the settlement agreement allocates clearly the settlement proceeds between tortlike personal injury damages and other damages, the allocation is generally binding for tax purposes (and the tortlike personal injury damages are excludable under section 104(a)(2)) to the extent that the agreement is entered into by the parties in an adversarial context at arm’s length and in good faith. Threlkeld v. Commissioner, 87 T.C. 1294, 1306-1307 (1986), affd. 848 F.2d 81 (6th Cir. 1988); Fono v. Commissioner, 79 T.C. 680, 694 (1982), affd. without published opinion 749 F.2d 37 (9th Cir. 1984); see also Mitchell v. Commissioner, T.C. Memo. 1990-617 (allocation of lump-sum payment in settlement document was not binding where taxpayer drafted the document without the participation or approval of his adversary), affd. 992 F.2d 1219 (9th Cir. 1993). An important factor in determining the validity of the agreement is the “intent of the payor” in making the payment. Knuckles v. Commissioner, supra at 613; Agar v. Commissioner, 290 F.2d 283, 284 (2d Cir. 1961), affg. per curiam T.C. Memo. 1960-21; Metzger v. Commissioner, supra at 847-848. If the payor’s intent cannot be clearly discerned from the settlement agreement, his or her intent must be determined from all the facts and circumstances of the case in issue there. Factors to consider include the details surrounding the litigation in the underlying proceeding, the allegations contained in the payee’s complaint and amended complaint in the" }, { "docid": "18941219", "title": "", "text": "parties (and, therefore, is at issue in this case) is evidenced not only by the statements of all of the speakers at trial but by the fact that, with the exception of the section 6673 argument, respondent limited his brief to that one issue. E.g., Knapp v. Commissioner, 90 T.C. 430, 439 (1988), affd. 867 F.2d 749 (2d Cir. 1989); Ewart v. Commissioner, 85 T.C. 544, 547-548 (1985), affd. 814 F.2d 321 (6th Cir. 1987); Estate of Belcher v. Commissioner, 83 T.C. 227, 227 n.2 (1984) (Court reviewed); Sharon v. Commissioner, 66 T.C. 515, 527 n.5 (1976), affd. 591 F.2d 1273, 1275 (9th Cir. 1978); see also Bishop v. Commissioner, T.C. Memo. 2001-82; McGee v. Commissioner, T.C. Memo. 2000-308. The majority opinion contains no statement as to why the majority do not respect the factual finding of the trial Judge that the hearing requirement is at issue. Nor am I aware of any legitimate reason why, under the facts herein, the majority alone may consider that issue abandoned. The question of whether a party has abandoned an issue involves a factual determination that rests on the facts and circumstances of the case, and the trial Judge is the one who is best able to make that determination. See United States v. Bencher (In re Bencher), 1992 U.S. Dist. LEXIS 9869, 1992 WL 687180 (W.D. Mich. June 11, 1992) (court applied a clearly erroneous standard in reviewing a bankruptcy court’s finding that the IRS had waived an argument in the bankruptcy court). I know of no principle of law that allows a Judge who did not preside over a trial to conclude contrary to the trial Judge that an issue has been abandoned. 2. Pertinent Legislative History Congress promulgated section 6330 to establish “formal procedures designed to insure due process where the IRS seeks to collect taxes by levy”. S. Rept. 105-174, at 67 (1998), 1998-3 C.B. 537, 603. The Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105-206, sec. 3401, 112 Stat. 746, of which section 6330 was a part, fortified taxpayers’ rights mainly by the addition" }, { "docid": "20022150", "title": "", "text": "v. Commissioner, 83 T.C. 79, 98 (1984); Dean v. Commissioner, 83 T.C. 56, 74 (1984). While a reasonable expectation of profit is not required, petitioner’s objective of making a profit must be bona fide. Fox v. Commissioner, 80 T.C. 972, 1006 (1983), affd. without published opinion 742 F.2d 1441 (2d Cir. 1984), affd. sub nom. Barnard v. Commissioner, 731 F.2d 230 (4th Cir. 1984), affd. without published opinion sub nom. Zemel v. Commissioner, 734 F.2d 9 (3d Cir. 1984), affd. without published opinion sub nom. Rosenblatt v. Commissioner, 734 F.2d 7 (3d Cir. 1984), affd. without published opinion sub nom. Krasta v. Commissioner, 734 F.2d 6 (3d Cir. 1984), affd. without published opinion sub nom. Leffel v. Commissioner, 734 F.2d 6 (3d Cir. 1984), affd. without published opinion sub nom. Hook v. Commissioner, 734 F.2d 5 (3d Cir. 1984). \"The courts have used words such as 'basic,’ 'dominant,’ 'primary,’ 'predominant,’ and 'substantial’ to describe the requisite profit motive.” Lemmen v. Commissioner, 77 T.C. 1326, 1340 (1981). See also Herrick v. Commissioner, 85 T.C. 237, 254 (1985); Flowers v. Commissioner, 80 T.C. at 931. \"Profit” in this context means economic profit, independent of tax savings. Herrick v. Commissioner, supra-, Surloff v. Commissioner, 81 T.C. 210, 233 (1983). Whether petitioner possessed the requisite profit objective is a question of fact to be resolved on the basis of all the facts and circumstances. Elliott v. Commissioner, 84 T.C. 227, 236 (1985), and cases cited therein. Although no one factor is determinative, greater weight must be given to objective facts than to petitioner’s mere statement of his intent. Siegel v. Commissioner, 78 T.C. 659, 699 (1982); Engdahl v. Commissioner, 72 T.C. 659, 666 (1979); sec. 1.183-2, Income Tax Regs. Moreover, as discussed in greater detail below, the absence of a particular indicia of profit motive may be more significant to our determination that the superficial presence of another indicia. Respondent’s determination is presumptively correct, and petitioners bear the burden of proving petitioner’s profit objective. Welch v. Helvering, 290 U.S. 111 (1933); Rule 142(a), Tax Court Rules of Practice and Procedure. Based upon the entire" }, { "docid": "15549022", "title": "", "text": "consider, even if the parties have ignored it or, as here, have switched sides on the issue”). Because the Court of Appeals did not consider the precise issue we decide herein, Golsen does not apply. See Read v. Commissioner, 114 T.C. 14 (2000), aff’d without published opinion sub nom. Mulberry Motor Parts, Inc. v. Commissioner, 273 F.3d 1120 (11th Cir. 2001); Estate of Branson v. Commissioner, 113 T.C. 6, 34 (1999), aff’d, 264 F.3d 904 (9th Cir. 2001). Accordingly, we reject respondent’s concession and apply the applicable regulations, authorized by sections 6231(a)(3) and 6233, and hold that this Court has jurisdiction to enter the stipulated decision as written, even to the extent it adjusts outside basis to zero and applies the 40% gross basis misstatement penalty under section 6662(h) to the deficiency that results from the overstatement of the purported partners’ bases in distributed property. Therefore we shall deny participating partner’s motion to vacate and revise the decision. Background Entry of the stipulated decision in this 1999 taxable year Son of BOSS case was preceded by our opinion in Tigers Eye Trading, LLC v. Commissioner, T.C. Memo. 2009-121 (Tigers Eye I). Tigers Eye I was preceded by extensive discovery and motion practice, the lodging of expert reports on the actual and expected financial consequences of the transaction, and the lodging and later filing of two extensive stipulations of fact. The undisputed factual material thereby made available enables us to describe the operative facts of the transaction. The extensive and detailed facts set forth in Tigers Eye I are incorporated herein by this reference. In addressing the pending motion, we take account of additional indisputable facts and repeat only the most pertinent facts set forth in Tigers Eye I. The subject transaction was one of a number of such transactions promoted by Sentinel Advisors, LLC (Sentinel), the tax matters partner, using a limited liability company— Tigers Eye Trading, LLC (Tigers Eye), in the case at hand— treated as a partnership for income tax purposes, as the vehicle needed to create the claimed basis step-ups that were the transaction’s reason for being." }, { "docid": "8781067", "title": "", "text": "Regs., and cases applying section 165 of the Code. See Ramsay Scarlett & Co. v. Commissioner, 61 T.C. 795 (1974), affd. 521 F.2d 786 (4th Cir. 1975); Montgomery v. Commissioner, 65 T.C. 511 (1975). Section 165 of the Code allows a deduction for “any loss sustained during the taxable year and not compensated for by insurance or otherwise.” Section 1.165-l(b), Income Tax Regs., provides that to be allowable as a deduction under section 165(a), a loss must be evidenced by closed and completed transactions, fixed by identifiable events. See also Montgomery v. Commissioner, supra; First Nat. Corp. v. Commissioner, 147 F.2d 462 (9th Cir. 1945). Section 1.165-l(d)(2)(i), Income Tax Regs., provides in part: If a casualty or other event occurs which may result in a loss and, in the year of such casualty or event, there exists a claim for reimbursement with respect to which there is a reasonable prospect of recovery, no portion of the loss with respect to which reimbursement may be received is sustained, for purposes of section 165, until it can be ascertained with reasonable certainty whether or not such reimbursement will be received. Whether a reasonable prospect of recovery exists with respect to a claim for reimbursement of a loss is a question of fact to be determined upon an examination of all facts and circumstances. * * * Accordingly, whether Scotten, Dillon sustained a loss deductible in 1970 under section 165 depends on whether at the close of 1970 there existed a “claim for reimbursement with respect to which there [was] a reasonable prospect of recovery.” As explained in Ramsay Scarlett & Co. v. Commissioner, supra at 811: A reasonable prospect of recovery exists when the taxpayer has bona fide claims for recoupment from third parties or otherwise, and when there is a substantial possibility that such claims will be decided in his favor. * * * The standard for making this determination is an objective one, under which this Court must determine what was a “reasonable expectation” as of the close of the taxable year for which the deduction is claimed. * *" }, { "docid": "15191220", "title": "", "text": "by such property during the first 12 months after the date of transfer of the equipment to the lessee, Decision Systems, Inc.” Thus, the question presented to us is whether under section 46(e)(3)(B), I.R.C. 1954, “the term of the lease (taking into account options to renew) is less than 50 percent of the useful life of the property.” The leases before us provide, on their face, for 12-month lease terms with no provision for renewal. These terms are clearly less than 50 percent of the 6-year useful life of the computer equipment leased. The Commissioner does not dispute that the literal terms of the 12-month leases cover less than half of the equipment’s life, but, instead, argues that the leases were really for an indefinite term. In deciding whether a lease is of indefinite duration or limited to the definite term specified in the lease, all the facts and circumstances are considered. Owen v. Commissioner, T.C. Memo. 1987-375, affd. 881 F.2d 832 (9th Cir. 1989), affd. sub nom. McEachron v. Commissioner, 873 F.2d 176 (8th Cir. 1988); Harvey v. Commissioner, T.C. Memo. 1986-381; Sanders v. Commissioner, T.C. Memo. 1984-511, affd. without published opinion 770 F.2d 174 (11th Cir. 1985). See G.W. Van Keppel Co. v. Commissioner, 295 F.2d 767, 771 (8th Cir. 1961); Highland Hills Swimming Club, Inc. v. Wiseman, 272 F.2d 176, 179 (10th Cir. 1959); Buddy Schoellkopf Products, Inc. v. Commissioner, 65 T.C. 640, 656 (1975) (dealing with the same factual issue in the context of the determination whether depreciation is to be taken over the lease term or over the useful life of an improvement to leased property). The duration of the lease is decided based on the “ ‘realistic contemplation’ of the parties at the time the lease was entered into.” Harvey v. Commissioner, T.C. Memo. 1986-381, quoting Hokanson v. Commissioner, 730 F.2d 1245, 1248 (9th Cir. 1984), affg. a Memorandum Opinion of this Court. Consequently, if it appears that the substance of the transaction is that the lessee will continue leasing the property beyond the period stated in the lease, then the specified lease term" }, { "docid": "16803356", "title": "", "text": "without opinion 496 F.2d 876 (5th Cir. 1974); Klamath Medical Service Bureau v. Commissioner, 29 T.C. 339, 347 (1957), affd. 261 F.2d 842 (9th Cir. 1958), cert. denied 359 U.S. 966 (1959). Discerning the intent behind the compensation presents a question of fact, to be determined from all the facts and circumstances of the particular case. Paula Construction Co. v. Commissioner, 58 T.C. 1055, 1059 (1972), affd. without opinion 474 F.2d 1345 (5th Cir. 1973); Electric & Neon, Inc. v. Commissioner, supra. Reasonableness of the compensation amount also presents a factual question to be resolved within the bounds of the individual case. Charles Schneider & Co. v. Commissioner, 500 F.2d 148, 151 (8th Cir. 1974), affg. a Memorandum Opinion of this Court, cert. denied 420 U.S. 908 (1975); Pacific Grains, Inc. v. Commissioner, 399 F.2d 603, 605 (9th Cir. 1968), affg. a Memorandum Opinion of this Court; Levenson & Klein, Inc. v. Commissioner, 67 T.C. 694, 711 (1977); Pepsi-Cola Bottling Co. of Salina v. Commissioner, 67 T.C. 564, 567 (1974), affd. 528 F.2d 176 (10th Cir. 1975); Boyle Fuel Co. v. Commissioner, 53 T.C. 162 (1969). The factors generally considered relevant in determining the reasonableness of compensation include: the employee’s qualifications; the nature, extent and scope of the employee’s work; the size and complexities of the business; a comparison of salaries paid with the gross income and the net income; the prevailing general economic conditions; comparison of salaries with distributions to stockholders; the prevailing rates of compensation for comparable positions in comparable concerns; the salary policy of the taxpayer as to all employees; and in the case of small corporations with a limited number of officers the amount of compensation paid to the particular employee in previous years. * * * [Mayson Mfg. Co. v. Commissioner, 178 F.2d 115, 119 (6th Cir. 1949), revg. a Memorandum Opinion of this Court.] Commercial Iron Works v. Commissioner, 166 F.2d 221, 224 (5th Cir. 1948), affg. a Memorandum Opinion of this Court; Pepsi-Cola Bottling Co. of Salina v. Commissioner, supra at 567-568; Dahlem Foundation, Inc. v. Commissioner, 54 T.C. 1566, 1579 (1970). Although" }, { "docid": "18143049", "title": "", "text": "with and are part of the partnership return make it clear that the partnership must have been subject to TEFRA as a matter of law” and that “the only reasonable conclusion is that TEFRA applies to Stone Canyon.” See op. Ct. p. 111. I respectfully disagree. I do not believe the opinion of the Court’s bright-line test is appropriate. The opinion of the Court seems to mistakenly equate the term “reasonable” with the term “correct”. If every incorrect determination were also found to be unreasonable, then section 6231(g)(2) would serve no purpose. Section 6231(g)(2), by its terms, applies only if a determination is both incorrect and reasonable. I believe the question of reasonableness is most appropriately determined under all of the facts and circumstances. See, e.g., Pac. Grains, Inc. v. Commissioner, 399 F.2d 603, 606 (9th Cir. 1968) (stating that the reasonableness of compensation is a question of fact to be determined on the basis of all the facts and circumstances), aff’g T.C. Memo. 1967-7; Patel v. Commissioner, 138 T.C. 395, 417 (2012) (stating that reasonable cause and good faith are determined on a case-by-case basis, taking into account all pertinent facts and circumstances); Price v. Commissioner, 102 T.C. 660, 662 (1994) (stating that for purposes of an award of litigation costs, the determination of the reasonableness of the Commissioner’s position is based on all the facts and circumstances), aff’d without published opinion sub nom. TSA/Stanford Assocs., Inc. v. Commissioner, 77 F.3d 490 (9th Cir. 1996); Montgomery v. Commissioner, 65 T.C. 511, 519 (1975) (stating that the existence of a reasonable prospect of recovery depends on the facts and circumstances); Carithers-Wallace-Courtenay v. Commissioner, 5 T.C. 942, 945 (1945) (stating that the reasonableness of an addition for a bad debt reserve depends upon the facts and circumstances); EMI Corp. v. Commissioner, T.C. Memo. 1985-386 (stating that whether a corporation’s accumulation of earnings for a contingent liability is reasonable depends upon all the facts and circumstances). When I look at all of the facts and circumstances of this case, there is no question in my mind that a determination to apply the" }, { "docid": "18143050", "title": "", "text": "reasonable cause and good faith are determined on a case-by-case basis, taking into account all pertinent facts and circumstances); Price v. Commissioner, 102 T.C. 660, 662 (1994) (stating that for purposes of an award of litigation costs, the determination of the reasonableness of the Commissioner’s position is based on all the facts and circumstances), aff’d without published opinion sub nom. TSA/Stanford Assocs., Inc. v. Commissioner, 77 F.3d 490 (9th Cir. 1996); Montgomery v. Commissioner, 65 T.C. 511, 519 (1975) (stating that the existence of a reasonable prospect of recovery depends on the facts and circumstances); Carithers-Wallace-Courtenay v. Commissioner, 5 T.C. 942, 945 (1945) (stating that the reasonableness of an addition for a bad debt reserve depends upon the facts and circumstances); EMI Corp. v. Commissioner, T.C. Memo. 1985-386 (stating that whether a corporation’s accumulation of earnings for a contingent liability is reasonable depends upon all the facts and circumstances). When I look at all of the facts and circumstances of this case, there is no question in my mind that a determination to apply the normal deficiency procedures on the basis of Stone Canyon’s return would be reasonable. The information on Stone Canyon’s Form 1065, U.S. Partnership Return of Income, for 1999, including the attached Schedules K-l, was confusing and contradictory. As even the opinion of the Court points out, the return “contained conflicting and necessarily erroneous information.” See op. Ct. p. 111. Stone Canyon expressly reported that it was not subject to the TEFRA procedures, and yet it designated a TMP, which exists only in the world of TEFRA partnerships. Stone Canyon attached a Schedule K-l to its return listing an LLC as one of its partners. However, Stone Canyon identified the LLC as an “INDIVIDUAL”, which would not be a pass-through partner. See sec. 6231(a)(9). The opinion of the Court brushes aside these inconsistencies and places all of its reliance on a second Schedule K-l in which Stone Canyon identified its other partner as an “S CORPORATION”. How could one know, looking solely at the partnership return, whether this information was not also incorrect? The information on Stone" }, { "docid": "18142978", "title": "", "text": "do not disturb the findings of fact in the proposed report. III. Application of Section 6231(g)(2) In an effort to explore options that even the parties had not considered, the Court ordered the parties to submit memoranda on the question of whether section 6231(g)(2) might apply in this case. Under section 6231(g)(2), the TEFRA provisions do not apply to a partnership if the Secretary reasonably determines, on the basis of the face of the partnership return, that TEFRA does not apply. A. Application of TEFRA In prior cases we have described the TEFRA procedures as “distressingly complex and confusing”. See, e.g., Tigers Eye Trading, LLC v. Commissioner, 138 T.C. 67, 92 (2012); Rhone-Poulenc Surfactants & Specialties, L.P. v. Commis sioner, 114 T.C. at 539-540. It can even be complex and confusing to determine whether a partnership is subject to TEFRA. The TEFRA provisions begin with the presumption that TEFRA applies to any entity that is required to file a partnership return. Sec. 6231(a)(1)(A). But there is an exception for small partnerships. A small partnership is any partnership having 10 or fewer partners each of whom is an individual (other than a nonresident alien), a C corporation, or an estate of a deceased partner. Sec. 6231(a)(l)(B)(i). Implicit in this exception, a partnership will not be considered to be a small partnership if any partner during the taxable year is a “pass-thru partner”. Id.; Brennan v. Commissioner, T.C. Memo. 2012-187, 2012 WL 2740897, at *3; sec. 301.6231(a)(l)-l(a)(2), Proced. & Admin. Regs. A “pass-thru partner” is a partnership, estate, trust, S corporation, nominee, or other similar person through whom other persons hold an interest in the partnership, and includes disregarded entities such as single-member LLCs. See 6611, Ltd. v. Commissioner, T.C. Memo. 2013—49, at *62 n.29; Tigers Eye Trading, LLC v. Commissioner, T.C. Memo. 2009-121, 2009 WL 1475159, at *11; Rev. Rui. 2004-88, 2004-2 C.B. 165. Stone Canyon was subject to TEFRA. Both partners of Stone Canyon were passthrough partners; as a result it did not qualify as a small partnership and was subject to the TEFRA procedures. Yet until the IRS issued" } ]

[ { "docid": "14237083", "title": "", "text": "find any reason for setting aside the election of Thomas Kemme as Fourth Vice President. Both Kemme and Richard J. Bacher were nominated for that position. Bacher was one of those recommended by the retiring president. Notwithstanding that recommendation, Kemme won the election by a vote of one hundred and four to ninety-two. The Secretary of Labor did not challenge Kemme’s election because, in his view, the election was not affected by the violation. The District Court, as we indicated above, set the election aside on the theory that a violation which affects the election for one office voids the entire election. We agree with the Secretary of Labor and reverse the trial court. It would be totally inconsistent with the language and history of the Act to deprive Kemme of an office which he won on his own. The election of Melvin T. Chadderton as Executive Secretary-Treasurer, on the other hand, must be set aside. Two persons were nominated for that office: Chadderton and Margaret Neely. Chadderton was one of those supported by the retiring president in his annual report. He won the election by a vote of one hundred and twenty-seven to seventy-four. The Secretary of Labor and the District Court both determined that the Union had not introduced evidence sufficient to demonstrate that the retiring president’s recommendation did not affect the results of that election. In our judgment, the decision of the District Court was not a clearly erroneous one. The Union offered no evidence to rebut the prima facie case established by the violation. Five persons were elected without opposition: George E. Pierson, President; A1 Mendoza, Executive Vice President; Henry E. Blair, First Vice President; George E. Sodam, Second Vice President; and E. Ray Sullivan, Third Vice President. The retiring president recommended each in his final report. The Secretary of Labor determined that the report of the retiring president “may well have had and probably did have a chilling effect on other aspirants to office and their supporters.” The District Court accepted this finding and added: The possibility exists, therefore, that at least some delegates were" } ]

[ { "docid": "22798457", "title": "", "text": "have affected” in order to avoid rendering the proposed “remedy practically worthless,” by ascribing to a proved violation of § 401 the effect of establishing a prima facie case that the violation “may-have affected” the outcome. This effect may of course be met by evidence which supports a finding that the violation did not affect the result. This construction is peculiarly appropriate when the violation of § 401, as here, takes the form of a substantial exclusion of candidates from the ballot. In such case we adopt the reasoning of the Court of Appeals for the Second Circuit in Wirtz v. Local Union 410, IUOE, 366 F. 2d 438, 443: “The proviso was intended to free unions from the disruptive effect of a voided election unless there is a meaningful relation between a violation of the Act and results of a particular election. For example, if the Secretary’s investigation revealed that 20 percent of the votes in an election had been tampered with, but that all officers had won by an 8-1 margin, the proviso should prevent upsetting the election. . . . But in the cases at bar, the alleged violations caused the exclusion of willing candidates from the ballots. In such circumstances, there can be no tangible evidence available of the effect of this exclusion on the election; whether the outcome would have been different depends upon whether the suppressed candidates were potent vote-getters, whether more union members' would have voted had candidates not been suppressed, and so forth. Since any proof relating to effect on outcome must necessarily be speculative, we do not think Congress meant to place as stringent a burden on the Secretary as the district courts imposed here.” The District Court acknowledged that the issue was “governed by the teaching of Wirtz v. Local Unions 410, etc.” and correctly held that under its principle “a violation by disqualification of candidates does not automatically require a finding that the outcome may have been affected.” 265 F. Supp., at 520-521. We cannot make out from the court’s opinion, however, whether the violation was regarded as establishing" }, { "docid": "2106442", "title": "", "text": "was also admitted that a union typewriter and union facilities were used to produce the campaign letter which Worley sent to the local delegates. Finally, the UAW admitted that two international representatives did address the Local 1999 delegates at the local’s facilities in Oklahoma City. There is little doubt that the use of the union stationery, typewriter, and facilities are in plain violation of LMRDA section 401(g). See Local 369, 790 F.2d at 513 (union president’s use of a union copying machine for personal electioneering purposes found to be a plain violation of section 401(g)). It is more difficult to assess whether the convention jackets are in violation of section 401(g). The parties strenuously dispute the effect of the jackets. The Secretary and Tucker allege that the jackets were “walking billboards” for Worley, while the UAW contends the jackets are merely a matter of union tradition with little campaign significance. Although the Court is unable to conceive of any reason why the name of a candidate for union office should appear on convention jackets other than for electioneering purposes, the Court need not reach the issue of whether those jackets were in violation of section 401(g). Nor must the Court decide whether the presence of the International representatives at Local 1999’s delegate meeting is in violation of section 401(g). Although the effect of the “Worley” jackets and the International representatives is debated, the other violations of section 401(g) are sufficient to establish a prima facie case that the violations “may have affected” the outcome of the election. Hotel Employees, 391 U.S. at 506-07, 88 S.Ct. at 1751-52. Such a prima facie showing may be countered by evidence supporting a finding that the violation did not affect the election result. Hotel Employees, 391 U.S. at 507, 88 S.Ct. at 1752; Marshall v. Local 1010, United Steelworkers, 498 F.Supp. 368, 376 (N.D.Ind.1980). The UAW has a substantial burden of showing that the violations did not affect the outcome of the election. Local 369, supra. In the present case, the UAW has not met its burden. The arguments the UAW makes simply do" }, { "docid": "15246505", "title": "", "text": "controversy moot. 3 Cir., 372 F.2d 86. However, the Supreme Court reversed our holding on mootness and remanded the case to us for decision on the merits. 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705. We now comply with that mandate. In ruling that the record did not adequately show a relation of cause and effect between the restriction on candidacy and the outcome of the election, the district court did not have the guidance now afforded by the Supreme Court in Wirtz v. Hotel, Motel and Club Employees Union, Union Local 6, 391 U.S. 492, 88 S.Ct. 1743, 20 L.Ed.2d 763, decided June 3, 1968. In that case it was decided that proof that an election was held under a rule unreasonably restricting members from being candidates for office in violation of section 401(e) in itself created an inference amounting to a prima facie showing that the wrongful restriction “may have affected the outcome” of the election. It then became the union’s burden to establish that the violation did not in fact affect the outcome of the election. The union made no such showing here. The present record provides no evidentiary support for a conclusion that the violation had no effect upon the challenged election. It does show that 8 elective offices were to be filled and that the rule restricting candidacy made all but 10 of the several hundred members of the union ineligible. Moreover, because none of the 10 eligible members were candidates for 4 of the offices, these offices were subsequently filled by appointments. Certainly, it is not impossible that this result would have been different if candidacy for election had not been so severely restricted. In sum, the ruling of the Hotel Employees case applied to the facts in this case requires the conclusion that the district court erred in ruling that the Secretary had failed to establish that the restriction upon candidacy “may have affected the outcome” of the election. On reargument after remand from the Supreme Court the union has advanced an alternative argument. It now contends that the district court’s refusal" }, { "docid": "922825", "title": "", "text": "see Bachowski v. Brennan, 413 F.Supp. 147, 150 (W.D.Pa.), appeal dismissed Bachowski v. Usery, 545 F.2d 363 (3d Cir. 1976) and also reasoned that the polling site captains were Lopez loyalists who could have had an intimidating effect because voters might have feared they would share their observations with Lopez. We reject the court’s suggestion that secrecy is only for the benefit of the challenger. While the court’s assumption that the polling site captains would report to Lopez is reasonable, it is also the kind of “conjecture” which the Supreme Court criticized in Hotel, Motel & Club Employees Union. The defendant did not produce on the motion for summary judgment the “tangible evidence” necessary under Hotel, Motel & Club Employees Union to rebut the “reasonable possibility” of an effect on the election. It is conceivable that Rank-and-File members may also have exerted social pressure on their colleagues to vote for their slate and that in some way the outcome of the election was affected by the absence of guarantees for secret voting. See 391 U.S. at 508, 88 S.Ct. at 1752. The district court also relied on the fact that on the day of the election a great number of union members were observed carrying in the voting areas green cards identifying Rank-and-File candidates. The court concluded that these members had determined in advance to support the Rank- and-File candidates which “raised doubt” that the violation of the LMRDA secret ballot rule may have affected the outcome of the election. The district court did not state and we find nothing in the record which suggests the number of union members who carried these cards into the polling places. Nor is there any evidence of the effect these cards had on the voting. It is possible that the actual effect of the cards was to exert pressure on the union membership to vote for the Rank-and-File slate. Even if the cards were sufficient to “raise doubt” as to the effect of the violation they are not sufficient to rebut the Secretary’s prima facie case that the secret ballot violation “may have”" }, { "docid": "14237077", "title": "", "text": "for union office.” Shultz v. Local 6799, United Steelworkers of America, 426 F.2d 969, 972 (9th Cir. 1970), affirmed on other grounds sub nom., Hodgson v. Local 6799, United Steelworkers of America, 403 U.S. 333, 91 S.Ct. 1841, 29 L.Ed.2d 510 (1971); Hodgson v. Liquor Salesmen’s Union, Local No. 2, 444 F.2d 1344,1350 (2nd Cir. 1971). Here, moneys taken from Union dues were spent to promote candidates for eight of the nine elective offices. Under the Act, it makes no difference that the amount spent was small. Shultz v. Local 6799, United Steelworkers of America, supra. Nor is the fact that the retiring President acted from the best of motives of any consequence: Congress designed Title IV to curb the possibility of abuse by benevolent as well as malevolent entrenched leaderships. Wirtz v. Hotel, Motel and Club Employees Union, Local 6, 391 U.S. 492, 503, 88 S.Ct. 1743, 1750, 20 L.Ed.2d 763 (1968). We cannot, however, affirm the District Court’s holding that the violation may have affected the outcome of each of the races and that a new election must be held for each office. The District Court, following Local 6, held that proof of a violation of § 401 establishes a prima facie case that the outcome of the election may have been affected. It noted that this showing could be overcome by evidence demonstrating that the violation did not affect the result, but held that the Union had failed to produce sufficient evidence for that purpose. It directed that new elections be held for all offices. The Union argues that the prima facie rule is not triggered by every violation of § 401. In particular, they contend that the violation found here should not have that effect, both because the violation was a de minimis one and because it did not involve the exclusion of candidates from the ballot. We look to the language of the Supreme Court in Local 6 for guidance. The Court stated: The Secretary was not entitled to an order for a supervised election unless the enforcement of the bylaws “may have affected” the" }, { "docid": "5609719", "title": "", "text": "but this prima facie case “may of course be met by evidence which supports a finding that the violation did not affect the result.” Wirtz v. Hotel, Motel & Club Employees Union, Local 6, 391 U.S. 492, 506, 507, 88 S.Ct. 1743, 1752, 20 L.Ed.2d 763 (1968). By affidavits the Union represented that over the years it had experienced great difficulty in obtaining the home addresses of members, despite repeated and persistent efforts to secure them. According to the Union many members maintained that their home addresses were none of the Union’s business and refused to disclose them. Also, said the Union, many members were transients, having no fixed addresses; and other members gave only incomplete addresses. The good faith attempts of the Union to secure addresses were recounted. The Union further represented, by affidavits of more than eighty shop stewards, that substantially every member of the Union received actual written notice of the election. According to the shop stewards they personally distributed official notices of the election to the members of Local 639 at their places of employment. The record disclosed also that of the members voting at the election 83% had received no mailed notice, but had received notice by personal service; that of those who received mailed notices only 10% voted, but 29% of those receiving the notices by personal service voted. The percentage of members voting was the highest in the history of the Union. Without attempting to forecast the result of a trial I think the Union’s affidavits at least raised a genuine issue of fact as to the possible effect of the statutory violation on the outcome of the election. Summary judgment was therefore inappropriate. Also, I do not find adequate support in the record for the District Court’s order forbidding the Union to enforce any meeting attendance requirements in the new election. Under section 401(e) of the Act (29 U.S.C. § 481(e)) the Union was entitled to impose reasonable meeting attendance requirements upon candidates. See Brennan v. Local 5724, United Steelworkers of America, 489 F.2d 884 (6th Cir. 1973). The court made no" }, { "docid": "14237085", "title": "", "text": "discouraged through fear, futility or some other force from nominating one or all of their own personal choices for office. Dunlop v. Stove, Furnace & Allied Appl. Wkrs., etc., 411 F.Supp. 801 (E.D.Mo.1976). The Union presented no evidence to the Secretary of Labor or to the trial court which would support its view that the violation did not affect the outcome of these elections. Instead, the Union adopted the position that no violations had occurred. While the question is not free from doubt, we hold that the District Court’s decision was not a clearly erroneous one. Little evidence of actual fear or discouragement was presented to the District Court. In fact, a strong minority did oppose measures advanced by the retiring president and did nominate opposition candidates for at least three offices. On the other hand, it is not unreasonable to assume that no opposition candidates were offered for the five offices in question because Union members felt that it would be futile to do so. Absent any further evidence on this issue, we affirm the judgment of the District Court. There is an additional election which we must consider. After being defeated for Fourth Vice President, Richard J. Bach-er’s name was placed in nomination, along with that of David J. Barks, for Fifth Vice President. Both men had been recommended by the retiring president for election as Union vice presidents. Bacher was elected by a vote of one hundred and two to seventy-four. It could be argued from these facts that the violation did not affect the outcome of the election as both candidates were recommended by the retiring president. The Secretary of Labor and the District Court, however, analogized this race to those in which the recommended candidate had no opposition. The Union offered no evidence on the matter. Under these circumstances, we must affirm the judgment of the District Court. The judgment of the District Court is affirmed, except as it relates to Thomas Kemme. It is reversed as to him, and the District Court is directed to modify its judgment accordingly. Costs will be taxed to" }, { "docid": "14237084", "title": "", "text": "retiring president in his annual report. He won the election by a vote of one hundred and twenty-seven to seventy-four. The Secretary of Labor and the District Court both determined that the Union had not introduced evidence sufficient to demonstrate that the retiring president’s recommendation did not affect the results of that election. In our judgment, the decision of the District Court was not a clearly erroneous one. The Union offered no evidence to rebut the prima facie case established by the violation. Five persons were elected without opposition: George E. Pierson, President; A1 Mendoza, Executive Vice President; Henry E. Blair, First Vice President; George E. Sodam, Second Vice President; and E. Ray Sullivan, Third Vice President. The retiring president recommended each in his final report. The Secretary of Labor determined that the report of the retiring president “may well have had and probably did have a chilling effect on other aspirants to office and their supporters.” The District Court accepted this finding and added: The possibility exists, therefore, that at least some delegates were discouraged through fear, futility or some other force from nominating one or all of their own personal choices for office. Dunlop v. Stove, Furnace & Allied Appl. Wkrs., etc., 411 F.Supp. 801 (E.D.Mo.1976). The Union presented no evidence to the Secretary of Labor or to the trial court which would support its view that the violation did not affect the outcome of these elections. Instead, the Union adopted the position that no violations had occurred. While the question is not free from doubt, we hold that the District Court’s decision was not a clearly erroneous one. Little evidence of actual fear or discouragement was presented to the District Court. In fact, a strong minority did oppose measures advanced by the retiring president and did nominate opposition candidates for at least three offices. On the other hand, it is not unreasonable to assume that no opposition candidates were offered for the five offices in question because Union members felt that it would be futile to do so. Absent any further evidence on this issue, we affirm" }, { "docid": "922823", "title": "", "text": "the intervening election and, therefore, the second election may also be tainted by the violation. See, e. g., Wirtz v. Hotel, Motel & Club Employees Union, 391 U.S. 492, 500 n. 9, 88 S.Ct. 1743, 1748 n. 9, 20 L.Ed.2d 763 (1968). We see no principled way to avoid the application of Glass Bottle Blowers to this case. Defendant suggests that we distinguish this case from Glass Bottle Blowers on the basis that the Secretary declined an invitation to supervise the 1979 election of the officers of Local 1010. Without passing on the merits of this suggested exception to Glass Bottle Blowers, we find it inapplicable here. Our review of the record discloses a factual dispute as to whether such an invitation was made and if so what its terms were. Compare Plaintiff’s Motion for Leave to Inform the Court of New Developments Affecting the Status of This Action in the Record at 62 with Defendant’s Response to That Motion in the Record at 63. We also find it appropriate to express our disagreement with the district court’s conclusion that the secret ballot violation could not have affected the outcome of the election. The violation itself established a prima facie case that the outcome of the election “may have” been “affected” within the meaning of 29 U.S.C. § 482(c). Hotel, Motel & Club Employees Union, supra at 505-509, 88 S.Ct. at 1751-1753; Brennan v. Local 3489, United Steelworkers of America, 520 F.2d 516 (7th Cir. 1975), aff’d sub nom., Local 3489 United Steelworkers of America v. Usery, 429 U.S. 305, 97 S.Ct. 611, 50 L.Ed.2d 502 (1977). The district court relied on two facts to rebut the Secretary’s prima facie case. It relied primarily on evidence that the Rank-and-File won the election in a landslide. The district court concluded that those who stood to gain the most from the absence of private voting booths were the incumbent Official Combined Caucus candidates and that their defeat showed that the violation did not affect the outcome of the election. The court suggested that secrecy is primarily for the benefit of the challenger," }, { "docid": "519679", "title": "", "text": "with regard to the use of Local 802’s union logo on the June 14, 1987 letter. There are no factual circumstances regarding this letter to negate the promotional effect which was created by the use of Local 802’s logo by the President of Local 802 on this admitted campaign literature. Defendant defends the use of Local 802’s logo by arguing that the Executive Committee of Local 802 had endorsed Emerson as a candidate. However, there exists no authority for a union executive committee to allow the use of union moneys to promote a candidate for union election. The use of the logo of Local 802 on the June 14,1987 letter constituted a use of union moneys to promote Emerson’s candidacy, in violation of section 401(g). C. “MAY HAVE AFFECTED THE OUTCOME” Given the violations of section 401(g), the central issue before the Court is that of the effect the violations may have had on the outcome of the election. The Supreme Court has held that once a violation of section 401(g) has been shown, the existence of that violation establishes a prima facia case that the violation may have affected the outcome of the election. Wirtz v. Hotel, Motel & Club Employees, Local 6, supra, 391 U.S. at 506-07, 88 S.Ct. at 1752 (union bylaw limiting eligibility of members to run for elective office violated section 401(g)). An actual effect on the election need not be shown. Id. The Secretary maintains that defendant must produce tangible evidence that the violations did not affect the outcome of the election to rebut the prima facia case. Defendant claims that the Court is to apply a “meaningful relationship” test under section 402(c), which would not require it to produce tangible evidence to rebut the pri-ma facia case. Defendant relies solely on a passage from the Supreme Court’s decision in Wirtz v. Hotel, Motel & Club Employees Union, Local 6, which stated: [t]he proviso [to section 402(c)(2)] was intended to free unions from the disruptive effect of a voided election unless there is a meaningful relationship between a violation of the Act and the" }, { "docid": "922826", "title": "", "text": "at 508, 88 S.Ct. at 1752. The district court also relied on the fact that on the day of the election a great number of union members were observed carrying in the voting areas green cards identifying Rank-and-File candidates. The court concluded that these members had determined in advance to support the Rank- and-File candidates which “raised doubt” that the violation of the LMRDA secret ballot rule may have affected the outcome of the election. The district court did not state and we find nothing in the record which suggests the number of union members who carried these cards into the polling places. Nor is there any evidence of the effect these cards had on the voting. It is possible that the actual effect of the cards was to exert pressure on the union membership to vote for the Rank-and-File slate. Even if the cards were sufficient to “raise doubt” as to the effect of the violation they are not sufficient to rebut the Secretary’s prima facie case that the secret ballot violation “may have” affected the outcome of the election. We decline the Secretary’s invitation to fashion a per se rule that secrecy violations always “may have affected” the election. Defendant might be able, at a trial on the merits, to rebut the Secretary’s prima facie showing. However, the uncontested facts the district court relied upon in ruling on this motion for summary judgment were insufficient. We assume, therefore, that the violation of the secret ballot requirement “may have affected” the outcome of the election. Nevertheless, we hold the district court properly granted summary judgment dismissing the action on the basis that “an implied exception to the dictates of § 482(c) exists in those rare cases such as the case at bar in which a union office-holder or incumbent union faction breaches the LMRDA election rules, loses an election, and then by complaining to the Department of Labor spurs the Secretary to commence a § 482(b) federal action to undo the election.” District Court opinion at 376. We agree with the Court of Appeals for the Second Circuit that" }, { "docid": "922824", "title": "", "text": "the district court’s conclusion that the secret ballot violation could not have affected the outcome of the election. The violation itself established a prima facie case that the outcome of the election “may have” been “affected” within the meaning of 29 U.S.C. § 482(c). Hotel, Motel & Club Employees Union, supra at 505-509, 88 S.Ct. at 1751-1753; Brennan v. Local 3489, United Steelworkers of America, 520 F.2d 516 (7th Cir. 1975), aff’d sub nom., Local 3489 United Steelworkers of America v. Usery, 429 U.S. 305, 97 S.Ct. 611, 50 L.Ed.2d 502 (1977). The district court relied on two facts to rebut the Secretary’s prima facie case. It relied primarily on evidence that the Rank-and-File won the election in a landslide. The district court concluded that those who stood to gain the most from the absence of private voting booths were the incumbent Official Combined Caucus candidates and that their defeat showed that the violation did not affect the outcome of the election. The court suggested that secrecy is primarily for the benefit of the challenger, see Bachowski v. Brennan, 413 F.Supp. 147, 150 (W.D.Pa.), appeal dismissed Bachowski v. Usery, 545 F.2d 363 (3d Cir. 1976) and also reasoned that the polling site captains were Lopez loyalists who could have had an intimidating effect because voters might have feared they would share their observations with Lopez. We reject the court’s suggestion that secrecy is only for the benefit of the challenger. While the court’s assumption that the polling site captains would report to Lopez is reasonable, it is also the kind of “conjecture” which the Supreme Court criticized in Hotel, Motel & Club Employees Union. The defendant did not produce on the motion for summary judgment the “tangible evidence” necessary under Hotel, Motel & Club Employees Union to rebut the “reasonable possibility” of an effect on the election. It is conceivable that Rank-and-File members may also have exerted social pressure on their colleagues to vote for their slate and that in some way the outcome of the election was affected by the absence of guarantees for secret voting. See 391 U.S." }, { "docid": "15246504", "title": "", "text": "OPINION OF THE COURT HASTIE, Chief Judge. This action by the Secretary of Labor seeks to have an election of officers of a local labor union invalidated under section 402(c) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 482(c), on the ground that the union had unreasonably restricted the eligibility of members for elective office in violation of section 401(e) of the Act, 29 U.S.C. § 481(e). The district court decided that a union rule restricting candidacy for office to members who had attended 75 percent of all union meetings over a period of two years was unreasonable and in violation of section 401 (e). However, the court denied relief on the ground that the record did not establish the additional requirement, imposed by section 402(c), that the violation “may have affected the outcome of an election.” On appeal, this court affirmed the judgment on the ground that the expiration of the terms of the officers said to have been wrongfully elected and the holding of subsequent election had made the controversy moot. 3 Cir., 372 F.2d 86. However, the Supreme Court reversed our holding on mootness and remanded the case to us for decision on the merits. 389 U.S. 463, 88 S.Ct. 643, 19 L.Ed.2d 705. We now comply with that mandate. In ruling that the record did not adequately show a relation of cause and effect between the restriction on candidacy and the outcome of the election, the district court did not have the guidance now afforded by the Supreme Court in Wirtz v. Hotel, Motel and Club Employees Union, Union Local 6, 391 U.S. 492, 88 S.Ct. 1743, 20 L.Ed.2d 763, decided June 3, 1968. In that case it was decided that proof that an election was held under a rule unreasonably restricting members from being candidates for office in violation of section 401(e) in itself created an inference amounting to a prima facie showing that the wrongful restriction “may have affected the outcome” of the election. It then became the union’s burden to establish that the violation did not in fact affect" }, { "docid": "14237079", "title": "", "text": "outcome of the May 1965 election, § 402(c), 29 U.S.C. § 482(c). The “may have affected” language appeared in the bill passed by the Senate, S. 1555. The bill passed by the House, H.R. 8342, and the Kennedy-Ervin bill, introduced in the Senate, S. 505, required the more stringent showing that the violation actually “affected” the outcome. The difference was resolved in conference by the adoption of the “may have affected” language. Senator Goldwater explained, “The Kennedy-Ervin bill (S. 505), as introduced, authorized the court to declare an election void only if the violation of section 401 actually affected the outcome of the election rather than may have affected such outcome. The difficulty of proving such an actuality would be so great as to render the professed remedy practically worthless. Minority members in committee secured an amendment correcting this glaring defect and the amendment is contained in the conference report.” 105 Cong.Rec. 19765. The provision that the finding should be made “upon a preponderance of the evidence” was left undisturbed when the change was made. That provision is readily satisfied, however, as is the congressional purpose in changing “affected” to “may have affected” in order to avoid rendering the proposed “remedy practically worthless,” by ascribing to a proved violation of § 401 the effect of establishing a prima facie case that the violation “may have affected” the outcome. This effect may of course be met by evidence which supports a finding that the violation did not affect the result. This construction is peculiarly appropriate when the violation of § 401, as here, takes the form of a substantial exclusion of candidates from the ballot. Wirtz v. Hotel, Motel and Club Employees Union, Local 6, supra at 505-507, 88 S.Ct. at 1752 (footnotes omitted, emphasis added). We think the language and the intention of the Supreme Court is clear. A proved violation of § 401 will have the effect of establishing a prima facie case that the violation may have affected the outcome. If there is only a single violation and a minimal one at that, it may be more easily" }, { "docid": "14237086", "title": "", "text": "the judgment of the District Court. There is an additional election which we must consider. After being defeated for Fourth Vice President, Richard J. Bach-er’s name was placed in nomination, along with that of David J. Barks, for Fifth Vice President. Both men had been recommended by the retiring president for election as Union vice presidents. Bacher was elected by a vote of one hundred and two to seventy-four. It could be argued from these facts that the violation did not affect the outcome of the election as both candidates were recommended by the retiring president. The Secretary of Labor and the District Court, however, analogized this race to those in which the recommended candidate had no opposition. The Union offered no evidence on the matter. Under these circumstances, we must affirm the judgment of the District Court. The judgment of the District Court is affirmed, except as it relates to Thomas Kemme. It is reversed as to him, and the District Court is directed to modify its judgment accordingly. Costs will be taxed to the appellant. . Section 401(g) of the LMRDA, 29 U.S.C. § 481(g), provides: No moneys received by any labor organization by way of dues, assessment, or similar levy, and no moneys of an employer shall be contributed or applied to promote the candidacy of any person in an election subject to the provisions of this subchapter. Such moneys of a labor organization may be utilized for notices, factual statements of issues not involving candidates, and other expenses necessary for the holding of an election. . $768.00 of Union funds were used to publish the report. . Section 402(c) of the LMRDA, 29 U.S.C. § 482(c), provides: If, upon a preponderance of the evidence after a trial upon the merits, the court finds— (1) that an election has not been held within the time prescribed by section 481 of this title, or (2) that the violation of section 481 of this title may have affected the outcome of an election, the court shall declare the election, if any, to be void and direct the conduct of" }, { "docid": "14237081", "title": "", "text": "rebutted, but it must be met by evidence which supports a finding that the violation did not affect the result. In our view, the final quoted sentence was not intended to suggest that the prima facie rule was to be applied only when the § 401 violation takes the form of a substantial exclusion of candidates from the ballot. No court has construed it in this fashion. Indeed, we are aware of no decision subsequent to Local 6 that has failed to give prima facie effect to a proved violation. Next, we consider whether the evidence received by the trial court was sufficient to overcome the prima facie case. The District Court, relying on Wirtz v. Local Union 169, International Hod Carriers, 246 F.Supp. 741 (D.Nev.1965), held that if a violation affects the outcome of one office, it voids the entire election for all offices. We reject this view as inconsistent with the language and history of the Act. In some cases, it would operate to deprive a candidate who did not benefit from the violation of an office he deserved. The District Court’s holding is contrary to the Labor Department’s practice of challenging only those offices which may have been affected by the proved violation. This practice is entitled to some weight. See Usery v. Teamsters Local 639, 543 F.2d 369 (D.C.Cir.1976). In some situations, the nature of the violation is such that the outcome of every office is affected. But this is not such a case. Here, the delegates were given a clear opportunity to vote for each office separately. The nominating and election procedure went as follows: The presiding officer opened nominations for a particular office. Nominations were then made and seconded for that office. If only one person was nominated, the chair would accept a motion that the nominee be elected by acclamation. If that motion passed by a majority vote, the candidate was elected. If more than one person was nominated, the winner was determined by secret ballot. This procedure was repeated for each office. Considering each of the offices individually, we are unable to" }, { "docid": "519681", "title": "", "text": "results of a particular election. Id. at 507, 88 S.Ct. at 1752, (quoting from Wirtz v. Local Union 410, Int’l Union of Operating Engineers, 366 F.2d 438, 443 (2d Cir.1966). Defendant asserts that the Secretary has not shown the conceded violation, or any of the alleged violations, to have had a meaningful relationship to the outcome of the election. However, defendant’s interpretation of section 402(c) is misguided. The Supreme Court in Wirtz v. Hotel, Motel & Club Employees, explained that Congress inserted the “may have affected” language specifically to reject a narrow reading of section 402(c) in order to assure that this remedy for violations of the LMRDA was not rendered worthless. Id. 391 U.S. at 505-06, 88 S.Ct. at 1751. Moreover, the Supreme Court noted that the union defendant in that case had not produced “tangible evidence against the reasonable possibility that the ... [violation] did affect the outcome” and stated that “conjecture” was insufficient to rebut the prima facie case. Id. at 508, 88 S.Ct. at 1752. See also, Donovan v. Local 719 United Auto., Aerospace and Agricultural Implement Workers of America, supra, 561 F.Supp. at 59; Hodgson v. Liquor Salesmen’s Union, Local No. 2, supra, 334 F.Supp. at 1368. Courts have consistently interpreted section 402(c) broadly, and have found that even minute expenditures of money in violation of section 401(g) may have affected the outcome. See Donovan v. International Union of Operating Engineers, Local No. 369, 593 F.Supp. 669, 671 (W.D.Tenn.1984), aff'd sub nom. Brock v. International Union of Operating Engineers, Local No. 369, 790 F.2d 508 (6th Cir.1986) (even “minimal” expenditure actionable); Marshall v. Office and Professional Employees Union, Local 2, 505 F.Supp. 121, 122-23 (D.D.C.1981) ($6.40 violative expenditure “may have affected outcome” of election); Schultz v. Local Union 6799, United Steelworkers of America, 426 F.2d 969, 972 (9th Cir.1970), aff'd sub nom. Hodgson v. Local 6799, United Steelworkers of America, 403 U.S. 333, 91 S.Ct. 1841, 29 L.Ed.2d 510 (1971) (de minimis argument rejected); Usery v. Stove, Furnace & Allied Appliance Workers International Union of North America, AFL-CIO, 547 F.2d 1043, 1045 (8th Cir.1977) (under" }, { "docid": "519680", "title": "", "text": "existence of that violation establishes a prima facia case that the violation may have affected the outcome of the election. Wirtz v. Hotel, Motel & Club Employees, Local 6, supra, 391 U.S. at 506-07, 88 S.Ct. at 1752 (union bylaw limiting eligibility of members to run for elective office violated section 401(g)). An actual effect on the election need not be shown. Id. The Secretary maintains that defendant must produce tangible evidence that the violations did not affect the outcome of the election to rebut the prima facia case. Defendant claims that the Court is to apply a “meaningful relationship” test under section 402(c), which would not require it to produce tangible evidence to rebut the pri-ma facia case. Defendant relies solely on a passage from the Supreme Court’s decision in Wirtz v. Hotel, Motel & Club Employees Union, Local 6, which stated: [t]he proviso [to section 402(c)(2)] was intended to free unions from the disruptive effect of a voided election unless there is a meaningful relationship between a violation of the Act and the results of a particular election. Id. at 507, 88 S.Ct. at 1752, (quoting from Wirtz v. Local Union 410, Int’l Union of Operating Engineers, 366 F.2d 438, 443 (2d Cir.1966). Defendant asserts that the Secretary has not shown the conceded violation, or any of the alleged violations, to have had a meaningful relationship to the outcome of the election. However, defendant’s interpretation of section 402(c) is misguided. The Supreme Court in Wirtz v. Hotel, Motel & Club Employees, explained that Congress inserted the “may have affected” language specifically to reject a narrow reading of section 402(c) in order to assure that this remedy for violations of the LMRDA was not rendered worthless. Id. 391 U.S. at 505-06, 88 S.Ct. at 1751. Moreover, the Supreme Court noted that the union defendant in that case had not produced “tangible evidence against the reasonable possibility that the ... [violation] did affect the outcome” and stated that “conjecture” was insufficient to rebut the prima facie case. Id. at 508, 88 S.Ct. at 1752. See also, Donovan v. Local 719" }, { "docid": "14237076", "title": "", "text": "HEANEY, Circuit Judge. We are asked to review a judgment of the District Court for the Eastern District of Missouri which voided the election of the Stove, Furnace and Allied Appliance Workers International Union of North America held in 1974 and ordered a new election. The District Court found that the Union violated § 401(g) of the Labor-Management Reporting and Disclosure Act of 1959, by using Union funds derived from dues and assessments to publish an Officers’ Report in which the retiring President recommended the election of eight officers. No other Union members had an opportunity to endorse candidates of their choice at Union expense. The court also found, pursuant to § 402(c) of the Act, that the violation may have affected the outcome of the election. We have little difficulty affirming the District Court’s holding that the use of Union funds violated the Act. “[T]he language of the provision itself is clear and unambiguous. It provides in terms that ‘no moneys’ of a union shall be spent to promote the candidacy of any person for union office.” Shultz v. Local 6799, United Steelworkers of America, 426 F.2d 969, 972 (9th Cir. 1970), affirmed on other grounds sub nom., Hodgson v. Local 6799, United Steelworkers of America, 403 U.S. 333, 91 S.Ct. 1841, 29 L.Ed.2d 510 (1971); Hodgson v. Liquor Salesmen’s Union, Local No. 2, 444 F.2d 1344,1350 (2nd Cir. 1971). Here, moneys taken from Union dues were spent to promote candidates for eight of the nine elective offices. Under the Act, it makes no difference that the amount spent was small. Shultz v. Local 6799, United Steelworkers of America, supra. Nor is the fact that the retiring President acted from the best of motives of any consequence: Congress designed Title IV to curb the possibility of abuse by benevolent as well as malevolent entrenched leaderships. Wirtz v. Hotel, Motel and Club Employees Union, Local 6, 391 U.S. 492, 503, 88 S.Ct. 1743, 1750, 20 L.Ed.2d 763 (1968). We cannot, however, affirm the District Court’s holding that the violation may have affected the outcome of each of the races and" }, { "docid": "14237080", "title": "", "text": "That provision is readily satisfied, however, as is the congressional purpose in changing “affected” to “may have affected” in order to avoid rendering the proposed “remedy practically worthless,” by ascribing to a proved violation of § 401 the effect of establishing a prima facie case that the violation “may have affected” the outcome. This effect may of course be met by evidence which supports a finding that the violation did not affect the result. This construction is peculiarly appropriate when the violation of § 401, as here, takes the form of a substantial exclusion of candidates from the ballot. Wirtz v. Hotel, Motel and Club Employees Union, Local 6, supra at 505-507, 88 S.Ct. at 1752 (footnotes omitted, emphasis added). We think the language and the intention of the Supreme Court is clear. A proved violation of § 401 will have the effect of establishing a prima facie case that the violation may have affected the outcome. If there is only a single violation and a minimal one at that, it may be more easily rebutted, but it must be met by evidence which supports a finding that the violation did not affect the result. In our view, the final quoted sentence was not intended to suggest that the prima facie rule was to be applied only when the § 401 violation takes the form of a substantial exclusion of candidates from the ballot. No court has construed it in this fashion. Indeed, we are aware of no decision subsequent to Local 6 that has failed to give prima facie effect to a proved violation. Next, we consider whether the evidence received by the trial court was sufficient to overcome the prima facie case. The District Court, relying on Wirtz v. Local Union 169, International Hod Carriers, 246 F.Supp. 741 (D.Nev.1965), held that if a violation affects the outcome of one office, it voids the entire election for all offices. We reject this view as inconsistent with the language and history of the Act. In some cases, it would operate to deprive a candidate who did not benefit from the" } ]

[ { "docid": "1813486", "title": "", "text": "any agent of such a person.” 29 U.S.C. § 623(a), § 630(b) (ADEA); 42 U.S.C. § 2000e, § 2000e(b) (Title VII) (emphasis supplied). Thus, all three statutes provide that a supervisor is an employer. The weight of authority suggests, however, that Congress in- eluded the “any agent” language to ensure that courts would impose respondeat superi- or liability upon employers for the acts of their agents, not upon the agents personally. Although the First Circuit has not addressed the question, such is the prevailing view in this district. Flamand v. American Int’l Group, Inc., 876 F.Supp. 356, 361-64 (D.P.R. 1994) (ADEA) (Laffitte, J.); Hernandez Torres v. Intercontinental Trading, Ltd., 1994 WL 752591, *3 (D.P.R.) (Laffitte, J.) (Title VII). I have followed Judge Laffitte’s approach to this issue on numerous occasions. See, e.g., Nogueras v. Univ. of Puerto Rico, Civil No. 95-1021 (PG), Order of June 20, 1996 (Title VII). Most of the circuit courts of appeals that have addressed the issue have found likewise. U.S. E.E.O.C. v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1281-81 (7th Cir.1995) (surveying Title VII and ADEA cases in holding that the ADA does not impose individual liability). Given that the ADA’s precursor statutes— the ADEA and Title VII—have been construed as precluding the imposition of personal liability, it would appear that Congress, through its use of identical language, intended the same rule to apply in the ADA. Therefore, the complaint must be DISMISSED to the extent it seeks to impose personal liability on the individually named defendants. The suit, however, names the defendants in both their personal and official capacities. The Court frequently sees suits denominated in this manner. The question is whether the official-personal capacity distinction is useful outside of suits against government officials. The Court agrees with Judge Laffitte that it is not. Flamand, 876 F.Supp. at 364; Hernandez Torres, 1994 WL 752591, *6. Because the LSC is liable for the conduct of its employees through respondeat superior, the naming of the individual defendants in their “official capacities” is redundant, and could, potentially, be confusing to a jury. Such claims must, therefore," } ]

[ { "docid": "16070114", "title": "", "text": "95 (1st Cir.1996). III. DISCUSSION As the Court mentioned previously two motions for summary judgment are currently pending: (A) Rodríguez’; and (B) J & J’s. (Docket No. 34). Julia filed an opposition. (Docket No. 30). Rodriguez and J & J have responded. (Docket No. 33). A. Rodriguez’ Motion Rodriguez argues that: (1) Julia failed to file a charge against Rodriguez before the Antidiscrimination Unit of the Department of Labor and Human Resources of Puerto Rico or the EEOC, for that reason the ADA claims against Rodriguez should be dismissed; (2) Julia failed to allege and/or prove that Rodriguez was his “employer” for ADA and SINOT purposes; (3) Julia failed to allege and/or prove that Rodriguez caused him any harm in her personal capacity apart from her actions as J & J’s Human Resources Manager; and, (4) Rodriguez does not administer nor maintains a welfare benefit plan covered by ERISA. Julia concedes that Rodriguez is not liable “under the Disability Act, ADA and ERISA” however, she is a proper defendant under the Civil Code of Puerto Rico, art. 1802-1803, P.R.Laws Ann. tit. 31, §§ 5141-5142. (Docket No. 30, p. 3). The Court agrees in part, and briefly explains. (1) Julia’s ADA claim. This Court has recently addressed this issue as follows: “First, the Court agrees that the ADEA does not provide for the imposition of individual liability. The First Circuit Court of Appeals and the Supreme Court have yet to decide this issue of individual liability of supervisors. See e.g. Serapion v. Martinez, 119 F.3d 982, 992 (1st Cir.1997) (circuit has not resolved issue and declined to address); see also Scarfo v. Cabletron Systems, Inc., 54 F.3d 931, 951-952 (1st Cir.1995) (similar). This district, and in particular the undersigned, has followed the major ity of circuits that have confronted this issue holding that no personal liability can attach to agents and supervisors under Title VII or ADEA. See Acevedo Vargas v. Colon, 2 F.Supp.2d 203, 206-207 (D.P.R.1998) (Title VII); Contreras Bordallo v. Banco Bilbao Vizcaya de P.R., 952 F.Supp. 72 (D.P.R.1997) (Title VII); Rodriguez v. Puerto Rico Marine Management, Inc., 975" }, { "docid": "3656774", "title": "", "text": "115, 120 (D.P.R.1997) (ADEA).” Julia v. Janssen, Inc., 92 F.Supp.2d 25, 28-29 (D.P.R.2000) (citing Diaz v. Antilles Conversion & Export, Inc., 62 F.Supp.2d 463, 465 (D.P.R.1999) (DRD) (ADEA)). See Vicenty Martell v. Estado Libre Asociado de P.R., 48 F.Supp.2d 81, 87 (D.P.R. 1999(SEC) (ADA and ADEA); Sifre v. Department of Health, 38 F.Supp.2d 91, 105-106 (D.P.R.1999) (JP) (ADA and Rehabilitation Act); Figueroa v. Fajardo, 1 F.Supp.2d 117, 120 (D.P.R. 1998)(RLA)(ADA); Rivera Rodriguez v. Police Dep’t of P.R., 968 F.Supp. 783, 785-786 (D.P.R.1997) (JP)(ADA); Moreno v. John Crane, Inc., 963 F.Supp. 72, 76 (D.P.R.1997) (SEC(ADA); Figueroa v. Mateco, Inc., 939 F.Supp. 106, 107 (D.P.R. 1996)(PG) (ADEA); Hernandez v. Wangen, 938 F.Supp. 1052, 1063-65 (D.P.R. 1996) (HL) (Title VII); Anonymous v. Legal Serv. Corp., 932 F.Supp. 49, 50-51 (D.P.R.1996) (PG)(ADA); Flamand v. American Int’l Group, Inc., 876 F.Supp. 356, 361-64 (D.P.R.1994) (HL) (ADEA); see also Meara v. Bennett, 27 F.Supp.2d 288, 290 (D.Mass.1998) (ADA); Miller v. CBC Companies, Inc., 908 F.Supp. 1054, 1065 (D.N.H.1995) (ADA); see generally Montez v. Romer, 32 F.Supp.2d 1235, 1241 (D.Colo.1999) (Rehabilitation Act); Baublitz v. California, No. C98-0434 CRB, 1998 WL 427444 at * 1 (N.D.Cal. July 27, 1998) (Rehabilitation Act); Huck v. Mega Nursing Servs., Inc., 989 F.Supp. 1462, 1464 (S.D.Fl.1997) (Rehabilitation Act). Therefore, Plaintiffs claim against under Title VII Defendants in their individual capacity are hereby DISMISSED. 2. Individual Liability Under Puerto Rico Anti-discrimination Laws Contrary to what Defendants aver, Plaintiffs claims against Defendants in their individual capacity under Puerto Rico laws do not lack merit. The Supreme Court of Puerto Rico recently found that under Puerto Rico Law Nos. 17, 69 and 100, an agent, official, administrator or supervisor of a business can be found personally liable for violations of the aforementioned laws. Rosario Toledo v. Distribuidora Kikuet, Inc., — D.P.R. -, 2000 WL 943550 at *5 (P.R.2000). However, a c'onjugal partnership’s assets will not be found liable for damages caused by one of the partners. Id. Consequently, Defendants’ Motion for Summary Judgment on the issue of personal liability under Puerto Rico laws is DENIED in part as to the claims against: 1) Jose A." }, { "docid": "21468647", "title": "", "text": "under Title VII The defendants contend that Chatman’s Title VII claim, brought against the individual defendants (count IV), cannot be maintained, because individuals are not personally liable under Title VII. Section 2000e-2(a) of Title VII prohibits an employer from engaging in discrimination in the workplace. The statute provides, in relevant part, that it is unlawful for an employer: (1) to fail-or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin ... An “employer” includes a “person engaged in an industry ... and any agent of such person.” 42 U.S.C. § 2000e(b) (emphasis added). Whether an employee (especially an employee with supervisory authority over other employees) of an allegedly discriminating employer entity is an “agent” of that employer entity, and thus may be held liable under Title VII, has not been decided in the First Circuit. Morrison, 108 F.3d at 444 (court expressly declined to decide the question in light of the circumstances of the case and in the absence of developed argument by the parties). District courts within the Circuit have taken contrary positions on the question. Compare, e.g., Danio v. Emerson College, 963 F.Supp. 61, 62 (D.Mass.1997) (Young, J.) (no individual liability under Title VII); Quiron v. L.N. Violette Co. Inc., 897 F.Supp. 18, 19-20 (D.Me.1995) (Brody, J.) (re-considering earlier position taken in Weeks v. State of Maine, 871 F.Supp. 515, 517 (D.Me.1994), the court rejects individual liability under Title VII); and Hernandez v. Wangen, 938 F.Supp. 1052,1064 (D.P.R.1996) (Laffitte, J.) (no individual liability under Title VII), with Lamirande v. Resolution Trust Corp., 834 F.Supp. 526, 528-529 (D.N.H.1993) (Devine, J.) (supervisors may be personally liable as “agents” of an “employer” under title VII); Iacampo v. Hasbro, Inc., et al., 929 F.Supp. 562, 571 (D.R.I.1996) (Lagueux, J.) (same); Ruffino, 908 F.Supp. at 1047-48 (Gertner, J.) (recognizing individual liability of supervisory and apparently of non-supervisory employees, as well, under Title VII). As for the view of the other circuits on the question of" }, { "docid": "10739148", "title": "", "text": "the facts presented raise issues of motive and intent as to the grounds for defendants’ denial of plaintiffs job applications. Therefore, plaintiff may go forward with his retaliation claims. D. Plaintiffs Claims Against Co-defendants in their Personal Capacity Under the ADA, ADEA and Title VII This Court has previously addressed the issue of individual liability under the ADA, ADEA and Title VII and held that “The First Circuit Court of Appeals and the Supreme Court have yet to decide this issue of individual liability of supervisors. See e.g. Serapion v. Martinez, 119 F.3d 982, 992 (1st Cir.1997) (circuit has not resolved issue and declined to address); see also Scarfo v. Cabletron Systems, Inc., 54 F.3d 931, 951-952 (1st Cir.1995) (similar). This district, and in particular the undersigned, has followed the majority of circuits that have confronted this issue holding that no personal liability can attach to agents and supervisors under Title VII, [ADA] or ADEA.” Julia v. Janssen, Inc., 92 F.Supp.2d 25, 28-29 (D.P.R.2000) (citing Diaz v. Antilles Conversion & Export, Inc., 62 F.Supp.2d 463, 465 (D.P.R.1999) (DRD) (ADEA)). See Vicenty Martell v. Estado Libre Asociado de P.R., 48 F.Supp.2d 81, 87 (D.P.R.1999(SEC) (ADA and ADEA); Sifre v. Department of Health, 38 F.Supp.2d 91, 105-106 (D.P.R.1999) (JP) (ADA and Rehabilitation Act); Figueroa v. Fajardo, 1 F.Supp.2d 117, 120 (D.P.R.1998)(RLA)(ADA); Rivera Rodriguez v. Police Dep’t of P.R, 968 F.Supp. 783, 785-786 (D.P.R.1997) (JP)(ADA); Moreno v. John Crane, Inc., 963 F.Supp. 72, 76 (D.P.R.1997) (SEC)(ADA); Figueroa v. Mateco, Inc., 939 F.Supp. 106, 107 (D.P.R.1996)(PG) (ADEA); Hernandez v. Wangen, 938 F.Supp. 1052, 1063-65 (D.P.R. 1996) (HL) (Title VII); Anonymous v. Legal Serv. Corp., 932 F.Supp. 49, 50-51 (D.P.R.1996). (PG)(ADA); Flamand v. American Int’l Group, Inc., 876 F.Supp. 356, 361-64 (D.P.R.1994) (HL) (ADEA); see also Meara v. Bennett, 27 F.Supp.2d 288, 290 (D.Mass.1998) (ADA); Miller v. CBC Companies, Inc., 908 F.Supp. 1054, 1065 (D.N.H.1995) (ADA); see generally Montez v. Romer, 32 F.Supp.2d 1235, 1241. (D.Colo.1999) (Rehabilitation. Act); Baublitz v. California, No. C98-434 CRB, 1998 WL 427444 at * 1 (N.D.Cal. July 27, 1998) (Rehabilitation Act); Huck v. Mega Nursing Servs., Inc., 989 F.Supp. 1462," }, { "docid": "10739149", "title": "", "text": "465 (D.P.R.1999) (DRD) (ADEA)). See Vicenty Martell v. Estado Libre Asociado de P.R., 48 F.Supp.2d 81, 87 (D.P.R.1999(SEC) (ADA and ADEA); Sifre v. Department of Health, 38 F.Supp.2d 91, 105-106 (D.P.R.1999) (JP) (ADA and Rehabilitation Act); Figueroa v. Fajardo, 1 F.Supp.2d 117, 120 (D.P.R.1998)(RLA)(ADA); Rivera Rodriguez v. Police Dep’t of P.R, 968 F.Supp. 783, 785-786 (D.P.R.1997) (JP)(ADA); Moreno v. John Crane, Inc., 963 F.Supp. 72, 76 (D.P.R.1997) (SEC)(ADA); Figueroa v. Mateco, Inc., 939 F.Supp. 106, 107 (D.P.R.1996)(PG) (ADEA); Hernandez v. Wangen, 938 F.Supp. 1052, 1063-65 (D.P.R. 1996) (HL) (Title VII); Anonymous v. Legal Serv. Corp., 932 F.Supp. 49, 50-51 (D.P.R.1996). (PG)(ADA); Flamand v. American Int’l Group, Inc., 876 F.Supp. 356, 361-64 (D.P.R.1994) (HL) (ADEA); see also Meara v. Bennett, 27 F.Supp.2d 288, 290 (D.Mass.1998) (ADA); Miller v. CBC Companies, Inc., 908 F.Supp. 1054, 1065 (D.N.H.1995) (ADA); see generally Montez v. Romer, 32 F.Supp.2d 1235, 1241. (D.Colo.1999) (Rehabilitation. Act); Baublitz v. California, No. C98-434 CRB, 1998 WL 427444 at * 1 (N.D.Cal. July 27, 1998) (Rehabilitation Act); Huck v. Mega Nursing Servs., Inc., 989 F.Supp. 1462, 1464 (S.D.Fl.1997) (Rehabilitation Act). Therefore, Plaintiffs ADA, ADEA and Title VII claims against co-defendants in their- individual capacity must be DISMISSED. E. Plaintiffs §§ 1981, 1981a, 1983 and 1988 Claims Against the Board of Trustees and Named Defendants in their Official Capacity As to plaintiffs section 1983 cause of action against the Board of Trustees and other named defendants in their official capacity, “[i]t is well settled ‘that neither a state agency nor a state official acting in his official capacity may be sued for damages in a section 1983 action.’ ” Wang v. New Hampshire Board of Registration in Medicine, 55 F.3d 698, 700 (1st Cir.1995) (citing Johnson v. Rodriguez, 943 F.2d 104, 108 (1st Cir.1991)) See Kaimowitz v. Board of Trustees, University of Illinois, 951 F.2d 765, 767 (7th Cir.1991) (holding that neither a state or its “alter ego” (university) is a person for purposes of section 1983). “This is so because § 1983 did not abrogate an unconsenting state’s Eleventh Amendment immunity from being sued in damages in federal court.” Vicenty-Martel v." }, { "docid": "2572196", "title": "", "text": "F.Supp.2d 157 (D.Puerto Rico 2000) (no personal liability can attach to agents and supervisors under Title VII or the ADEA). This district has followed the majority of circuits that have confronted this issue holding that no personal liability can attach to agents and supervisors under Title VII, ADA, ADEA or COBRA. See Orell, 203 F.Supp.2d at 64 (citing Vizcarrondo v. Board of Trustees of the UPR, 139 F.Supp.2d 198, 202 (D.Puerto Rico 2001); Julia v. Janssen, Inc., 92 F.Supp.2d 25, 28-29 (D.Puerto Rico 2000)) (citing Díaz v. Antilles Conversion & Export, Inc., 62 F.Supp.2d 463, 465 (D.Puerto Rico 1999) (ADEA)). See Vicenty Martell v. Estado Libre Asociado de P.R., 48 F.Supp.2d 81, 87 (D.Puerto Rico 1999) (ADA and ADEA); Sifre v. Department of Health, 38 F.Supp.2d 91, 105-106 (D.Puerto Rico 1999) (ADA and Rehabilitation Act); Figueroa v. Fajardo, 1 F.Supp.2d 117, 120 (D.Puerto Rico 1998) (ADA); Rivera Rodriguez v. Police Dep’t of P.R., 968 F.Supp. 783, 785-786 (D.Puerto Rico 1997) (ADA); Moreno v. John Crane, Inc., 963 F.Supp. 72, 76 (D.Puerto Rico 1997) (ADA); Figueroa v. Mateco, Inc., 939 F.Supp. 106, 107 (D.Puerto Rico 1996) (ADEA); Hernandez v. Wangen, 938 F.Supp. 1052, 1063-65 (D.Puerto Rico 1996) (Title VII); Anonymous v. Legal Serv. Corp., 932 F.Supp. 49, 50-51 (D.Puerto Rico 1996)(ADA); Flamand, 876 F.Supp. at 361-64 (ADEA); see also Meara v. Bennett, 27 F.Supp.2d 288, 290 (D.Mass.1998) (ADA); Miller v. CBC Companies, Inc., 908 F.Supp. 1054, 1065 (D.N.H.1995) (ADA); McDowell v. Krawchison, 125 F.3d 954 (6th Cir.1997) (sole shareholder of chiropractic clinic could be considered as “employer” under ERISA due to his actions regarding clinic’s health insurance plan did not justify imposition of individual liability for failing to provide terminated employee’s spouse with notice required by COBRA); see generally Montez v. Romer, 32 F.Supp.2d 1235, 1241 (D.Colo.1999) (Rehabilitation Act). Therefore, it is recommended that the Motion to Dismiss the ADA claims against the individual co-defendants be GRANTED for lack of individual liability and this cause of action be DISMISSED WITH PREJUDICE as to co-defendants Rosario, Nieves and Blanes. F. Plaintiffs FMLA Claims. Defendants request in one sentence on their Motion to" }, { "docid": "5121211", "title": "", "text": "ORDER DOMINGUEZ, District Judge. Pending before the Court is Defendant’s Motion to Dismiss the personal liability claim against co-defendant Juan A. Net Brunet (Docket No. 8) and Plaintiff Benigno Contreras Bordallo’s Opposition thereto (Docket No. 12). The issue is the individual liability under Title VII of codefendant Juan A. Net Brunet hereinafter referred to as “Net.” Defendants also request the dismissal of Plaintiffs local law claim under Law 100, P.R.Laws Ann.Tit. 29 § 146 et sec. The issue of individual liability under Title VII has not been decided in the First Circuit or by the Supreme Court of the United States. District Judge Héctor M. Laffitte in the case of Elba Colón Hernández v. Patrick Wangen, 938 F.Supp. 1052 (D.P.R.1996) recently performed an exhaustive restatement of circuit court and district court decisions in this district. Id. at 1062-1063, n. 6. See also Anonymous v. Legal Services Corp. of Puerto Rico, 932 F.Supp. 49 (D.P.R.1996) (Pérez Giménez J.). Although a circuit court has authorized individual liability under Title VII and ADEA, the definition of employer being substantially identical under both laws, most circuits that have confronted the issue, have concluded that there is no personal liability. Only the Fourth Circuit Court has imposed personal liability to supervisors. In this district there are various decisions dismissing individual liability claims against supervisors. Elba Colón v. Patrick Wangen, supra; Flamand v. American International Group, Inc., 876 F.Supp. 356, 361-364 (D.P.R.1994); Hernández Torres v. Intercontinental Trading Ltd., 1994 WL 752591, *3 (D.P.R.1994 Laffitte J.). The Court recognizes that there are district court opinions in the First Circuit holding for personal supervisory liability. This Court has scrutinized the statute and agrees with the well reasoned opinion of Judge Laffitte: “The overall language of Title VII, the legislative history, and the Civil Rights Act of 1991 demonstrate that Congress used the word “agent” in the definition of “employer” to incorporate, the doctrine of respondeat superior into the law [citations omitted]. There is absolutely no mention in the statute language or in the legislative history of Title VII’s application to individual defendants (footnote omitted). As it was with" }, { "docid": "21468648", "title": "", "text": "in light of the circumstances of the case and in the absence of developed argument by the parties). District courts within the Circuit have taken contrary positions on the question. Compare, e.g., Danio v. Emerson College, 963 F.Supp. 61, 62 (D.Mass.1997) (Young, J.) (no individual liability under Title VII); Quiron v. L.N. Violette Co. Inc., 897 F.Supp. 18, 19-20 (D.Me.1995) (Brody, J.) (re-considering earlier position taken in Weeks v. State of Maine, 871 F.Supp. 515, 517 (D.Me.1994), the court rejects individual liability under Title VII); and Hernandez v. Wangen, 938 F.Supp. 1052,1064 (D.P.R.1996) (Laffitte, J.) (no individual liability under Title VII), with Lamirande v. Resolution Trust Corp., 834 F.Supp. 526, 528-529 (D.N.H.1993) (Devine, J.) (supervisors may be personally liable as “agents” of an “employer” under title VII); Iacampo v. Hasbro, Inc., et al., 929 F.Supp. 562, 571 (D.R.I.1996) (Lagueux, J.) (same); Ruffino, 908 F.Supp. at 1047-48 (Gertner, J.) (recognizing individual liability of supervisory and apparently of non-supervisory employees, as well, under Title VII). As for the view of the other circuits on the question of individual liability, there appears to be an emerging consensus that an employee who does not otherwise qualify as an “employer,” is not individually liable under Title VII. Of the eleven circuits that have addressed the question, ten have rejected the imposition of individual liability under Title VII. Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2nd Cir.1995) (individual supervisors exercising control over plaintiff are not personally liable under Title VII); Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1078 (3rd Cir.1996) cert. denied, — U.S. -, 117 S.Ct. 2532, 138 L.Ed.2d 1031 (1997) (holding that Congress did not intend to hold individual employees liable under Title VII); Grant v. Lone Star Co., 21 F.3d 649, 653 (5th Cir.1994) cert. denied, 513 U.S. 1015, 115 S.Ct. 574, 130 L.Ed.2d 491 (1994) (no individual liability unless individual defendant meets Title VII’s definition of “employer”); Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th Cir.1997) (individual employee/supervisor who is not otherwise an employer cannot be held personally liable under Title VII); Williams v. Banning," }, { "docid": "2124902", "title": "", "text": "OPINION AND ORDER PEREZ-GIMENEZ, District Judge. This case involves a claim of age discrimination. Plaintiff Figueroa was the President of the co-defendant Mateco, Inc. until he was fired in October 1990. Figueroa was sixty years old at the time. Invoking the Court’s federal question jurisdiction, Figueroa seeks relief under the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. Based on both diversity and supplemental jurisdiction, Figueroa also claims violation of Puerto Rico’s general employment discrimination law, “Law 100,” 29 L.P.R.A § 146, et seq., and seeks damages in tort under § 1802 of the Puerto Rico Civil Code. Figueroa names as defendants Mateco Acquisitions, Inc., Mateco Inc. (the former’s wholly owned subsidiary), as well as Victor Gonzalez, the Mateco Acquisitions official who fired him. Before the Court is co-defendant Gonzalez’ motion for summary judgment. Gonzalez seeks dismissal of the ADEA and Law 100 claims against him on the grounds that neither law provides for the imposition of individual liability. For the reasons stated herein, the motion is GRANTED. As this Court has ruled before, individual liability may not be imposed under the ADEA. Flamand v. American Int’l Group, Inc., 876 F.Supp. 356, 361-64 (D.P.R.1994) (ADEA) (Laffitte, J.). The only undecided question is whether liability under Law 100 is similarly limited. The Court is not aware of any decision, from either the Puerto Rico Supreme Court or the federal district court, that directly addresses this issue. After due consideration, the Court concludes that Law 100 does not provide for the imposition of individual liability. The analysis begins with the words of the statute. Law 100 prohibits discrimination by an “employer,” based on the protected characteristic of, among other factors, age. 29 L.P.RA. § 146. The term “employer” is elsewhere defined as “any natural or artificial person employing laborers, workers or employees, and the chief, official, manager, officer, managing partner, administrator, superintendent, foreman, overseer, agent or representative of such natural or artificial person.” 29 L.P.R.A. § 151(2). Plaintiff argues that he may bring suit directly against Gonzalez because Gonzalez qualifies as an “employer.” Other considerations suggest, however," }, { "docid": "6743693", "title": "", "text": "against a State under the Title I of the ADA are barred by the Eleventh Amendment. Therefore, plaintiffs AHA claims requesting monetary damages against defendant must be dismissed. Plaintiffs only surviving ADA claim is one for retaliation now limited to seeking the relief of repossession in employment, which is for the Court to adjudicate (no - jury trial). D. ADA and Rehabilitation Act Claims Against Victor Fajardo in his Personal Capacity The First Circuit Court of Appeals and the Supreme Court have yet to decide this issue of individual liability of supervisors. See e.g. Serapion v. Martinez, 119 F.3d 982, 992 (1st Cir.1997) (circuit has not resolved issue and declined to address); see also Scatfo v. Cabletron Systems, Inc., 54 F.3d 931, 951-952 (1st Cir.1995) (similar). This district, and in particular the undersigned, has followed the majority of circuits that have confronted this issue holding that no personal liability can attach to agents and supervisors under Title VII, ADEA, ADA or the Rehabilitation Act. See Acevedo Vargas v. Colon, 2 F.Supp.2d 203, 206-207 (D.P.R.1998) (Title VII); Rodriguez v. Puerto Rico Marine Management, Inc., 975 F.Supp. 115, 120 (D.P.R.1997) (ADEA). Julia v. Janssen, Inc., 92 F.Supp.2d 25, 28-29 (D.P.R.2000) (citing Diaz v. Antilles Conversion & Export, Inc., 62 F.Supp.2d 463, 465 (D.P.R.1999) (DRD) (ADEA)). See Vicenty Martell v. Estado Libre Asociado de P.R., 48 F.Supp.2d 81, 87 (D.P.R.1999)(SEC) (ADA and ADEA); Sifre v. Department of Health, 38 F.Supp.2d 91, 105-106 (D.P.R.1999) (JP) (ADA and Rehabilitation Act); Figueroa v. Fajardo, 1 F.Supp.2d 117, 120 (D.P.R.1998)(RLA)(ADA); Rivera Rodriguez v. Police Dep’t of P.R., 968 F.Supp. 783, 785-786 (D.P.R.1997) (JP)(ADA); Moreno v. John Crane, Inc., 963 F.Supp. 72, 76 (D.P.R.1997) (SEC)(ADA); Figueroa v. Mateco, Inc., 939 F.Supp. 106, 107 (D.P.R.1996)(PG) (ADEA); Anonymous v. Legal Serv. Corp., 932 F.Supp. 49, 50-51 (D.P.R.1996) (PG)(ADA); Flamand v. American Int’l Group, Inc., 876 F.Supp. 356, 361-64 (D.P.R.1994) (HL) (ADEA); see also Meara v. Bennett, 27 F.Supp.2d 288, 290 (D.Mass.1998)(ADA); Miller v. CBC Companies, Inc., 908 F.Supp. 1054, 1065 (D.N.H.1995) (ADA); see generally Montez v. Romer, 32 F.Supp.2d 1235, 1241 (D.Colo.1999) (Rehabilitation Act); Baublitz v. California, No. C98-0434 CRB," }, { "docid": "5121212", "title": "", "text": "substantially identical under both laws, most circuits that have confronted the issue, have concluded that there is no personal liability. Only the Fourth Circuit Court has imposed personal liability to supervisors. In this district there are various decisions dismissing individual liability claims against supervisors. Elba Colón v. Patrick Wangen, supra; Flamand v. American International Group, Inc., 876 F.Supp. 356, 361-364 (D.P.R.1994); Hernández Torres v. Intercontinental Trading Ltd., 1994 WL 752591, *3 (D.P.R.1994 Laffitte J.). The Court recognizes that there are district court opinions in the First Circuit holding for personal supervisory liability. This Court has scrutinized the statute and agrees with the well reasoned opinion of Judge Laffitte: “The overall language of Title VII, the legislative history, and the Civil Rights Act of 1991 demonstrate that Congress used the word “agent” in the definition of “employer” to incorporate, the doctrine of respondeat superior into the law [citations omitted]. There is absolutely no mention in the statute language or in the legislative history of Title VII’s application to individual defendants (footnote omitted). As it was with other civil rights statutes such as Section 1981, Congress would have included individuals like supervisors as potential liable parties ... Finally the language of the Civil Rights Act reflects Congress’ pellucid desire to protect small corporate entities from the burdens of litigating discrimination lawsuits (footnote omitted). It shields all defendants with lower than fifteen employees from -liability, 42 U.S.C.A. 1931a(a)(3) (1994). Moreover, for defendants with more than fourteen employees, it limits the amount for compensatory and punitive damages recoverable proportionally to the number of total employees. Id. Once again as with Title VII, there was absolutely no discussion of expanding liability to include individual defendants (footnote omitted). Indeed it would be nothing short of bizarre if Congress placed such heightened emphasis and concern on limiting the damages recoverable against small corporate entities and yet simultaneously, silently exposed all individual defendants to unlimited liability.” Wangen, supra at 1064-65. Since the law is totally silent as to individual liability, and the word “agent” has been incorporated in the definition of “employer” to include the doctrine of respondeat" }, { "docid": "16070116", "title": "", "text": "F.Supp. 115, 120 (D.P.R.1997) (ADEA).” Diaz v. Antilles Conversion & Export, Inc., 62 F.Supp.2d 463, 465 (D.P.R.1999) (DRD) (ADEA); see Vicenty Martell v. Estado Libre Asociado de P.R., 48 F.Supp.2d 81, 87 (D.P.R.1999) (SEC) (ADA and ADEA); Sifre v. Department of Health, 38 F.Supp.2d 91, 105-106 (D.P.R.1999) (JP) (ADA and Rehabilitation Act); Figueroa v. Fajardo, 1 F.Supp.2d 117, 120 (D.P.R.1998) (RLA)(ADA); Rivera Rodriguez v. Police Dep’t of P.R., 968 F.Supp. 783, 785-786 (D.P.R.1997) (JP)(ADA); Moreno v. John Crane, Inc., 963 F.Supp. 72, 76 (D.P.R.1997) (SEC)(ADA); Figueroa v. Mateco, Inc., 939 F.Supp. 106, 107 (D.P.R.1996) (PG) (ADEA); Hernandez v. Wangen, 938 F.Supp. 1052, 1063-65 (D.P.R.1996) (HL) (Title VII); Anonymous v. Legal Serv. Corp., 932 F.Supp. 49, 50-51 (D.P.R.1996) (PG)(ADA); Flamand v. American Int’l Group, Inc., 876 F.Supp. 356, 361-64 (D.P.R.1994) (HL) (ADEA); see also Meara v. Bennett, 27 F.Supp.2d 288, 290 (D.Mass.1998) (ADA); Miller v. CBC Companies, Inc., 908 F.Supp. 1054, 1065 (D.N.H.1995) (ADA); see generally Montez v. Romer, 32 F.Supp.2d 1235, 1241 (D.Colo.1999) (Rehabilitation Act); Baublitz v. California, No. C98-0434 CRB, 1998 WL 427444 at * 1 (N.D.Cal. July 27, 1998) (Rehabilitation Act); Huck v. Mega Nursing Servs., Inc., 989 F.Supp. 1462, 1464 (S.D.Fl.1997) (Rehabilitation Act). Therefore, Julia’s American with Disabilities Act of 1990, see 42 U.S.C. § 12101 et seq., (“ADA”) claim against Co-defendant, Carmen Rodriguez, is hereby DISMISSED WITH PREJUDICE. The Court strongly believes that Julia’s claim under the Civil Rights Act, 42 U.S.C. §§ 1981-1988, must also be dismissed because the only colorable claim Julia had thereunder was a violation of ADA claim against Rodríguez, and, in conjunction with that dismissed there are no allegations to otherwise sustain a claim thereunder (i.e., Rodriguez is not a state actor, and no contractual relationship present, etc.). Therefore, Julia is hereby ORDERED TO SHOW CAUSE by March 31, 2000 first, whether this claim is under 29 U.S.C. or under 42 U.S.C. (as the Court believes) and second, why the Court should not dismiss this cause of action for failure to state a claim upon which relief may be granted for the aforestated reasons. (2) Julia’s SINOT claim. Rodriguez did not" }, { "docid": "3656773", "title": "", "text": "in their personal capacity should be dismissed, because Title VII does not allow a cause of action against them in their individual capacity. (Docket No. 17). This Court has recently addressed the issue as follows: “First, the Court agrees that the ADEA does not provide for the imposition of individual liability. The First Circuit Court of Appeals and the Supreme Court have yet to decide this issue of individual liability of supervisors. See e.g. Serapion v. Martinez, 119 F.3d 982, 992 (1st Cir.1997) (circuit has not resolved issue and declined to address); see also Scarfo v. Cabletron Systems, Inc., 54 F.3d 931, 951-952 (1st Cir.1995) (similar). This district, and in particular the undersigned, has followed the majority of circuits that have confronted this issue holding that no personal liability can attach to agents and supervisors under Title VII or ADEA. See Acevedo Vargas v. Colon, 2 F.Supp.2d 203, 206-207 (D.P.R.1998) (Title VII); Contreras Bordallo v. Banco Bilbao Vizcaya de P.R., 952 F.Supp. 72 (D.P.R.1997) (Title VII); Rodriguez v. Puerto Rico Marine Management, Inc., 975 F.Supp. 115, 120 (D.P.R.1997) (ADEA).” Julia v. Janssen, Inc., 92 F.Supp.2d 25, 28-29 (D.P.R.2000) (citing Diaz v. Antilles Conversion & Export, Inc., 62 F.Supp.2d 463, 465 (D.P.R.1999) (DRD) (ADEA)). See Vicenty Martell v. Estado Libre Asociado de P.R., 48 F.Supp.2d 81, 87 (D.P.R. 1999(SEC) (ADA and ADEA); Sifre v. Department of Health, 38 F.Supp.2d 91, 105-106 (D.P.R.1999) (JP) (ADA and Rehabilitation Act); Figueroa v. Fajardo, 1 F.Supp.2d 117, 120 (D.P.R. 1998)(RLA)(ADA); Rivera Rodriguez v. Police Dep’t of P.R., 968 F.Supp. 783, 785-786 (D.P.R.1997) (JP)(ADA); Moreno v. John Crane, Inc., 963 F.Supp. 72, 76 (D.P.R.1997) (SEC(ADA); Figueroa v. Mateco, Inc., 939 F.Supp. 106, 107 (D.P.R. 1996)(PG) (ADEA); Hernandez v. Wangen, 938 F.Supp. 1052, 1063-65 (D.P.R. 1996) (HL) (Title VII); Anonymous v. Legal Serv. Corp., 932 F.Supp. 49, 50-51 (D.P.R.1996) (PG)(ADA); Flamand v. American Int’l Group, Inc., 876 F.Supp. 356, 361-64 (D.P.R.1994) (HL) (ADEA); see also Meara v. Bennett, 27 F.Supp.2d 288, 290 (D.Mass.1998) (ADA); Miller v. CBC Companies, Inc., 908 F.Supp. 1054, 1065 (D.N.H.1995) (ADA); see generally Montez v. Romer, 32 F.Supp.2d 1235, 1241 (D.Colo.1999) (Rehabilitation Act);" }, { "docid": "17971222", "title": "", "text": "employer for said acts. Section 703(a) of Title VII states: It shall be unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex or national origin. 42 U.S.C. § 2000e-2. The guidelines issued by the Equal Employment Opportunity Commission (EEOC), establishing the criteria for determining when unwelcome conduct of a sexual nature constitutes sexual harassment for purposes of Section 703, provide: [A]n employer is responsible for its acts and those of its agents and supervising employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized of even forbidden by the employer and regardless of whether the employer knew or should have known of their occurrence. The term “employer” is defined as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day and any agent of such person.” 42 U.S.C. § 2000e. When Congress used the word “agent” in this definition, the purpose was to incorporate the doctrine of respondent superior into the law. Colón Hernández v. Wangen, 938 F.Supp. 1052 (D.P.R.1996); Flamand v. American International Group, 876 F.Supp. 356 (D.P.R.1994), (stating that “the definition of employer, which includes the employer’s agents, serves not as a vehicle to impute liability upon said agent, but rather as a means to incorporate respondent superior liability into the [ADEA]”); Williams v. Banning, 72 F.3d 552 (7th Cir.1995) (stating that “ADA’s definition of employer which (like Title VII) includes an employer’s agents, is simply a statutory expression of traditional respondent superior liability and imposes no individual liability on agents”). See generally Mason v. Stallings, 82 F.3d 1007 (11th Cir.1996); Smith v. Lomax, 45 F.3d 402 (11th Cir.1995); Cross v. Alabama, 49 F.3d 1490 (11th Cir.1995); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507 (4th Cir.1994); Grant v. Lone Star Co., 21 F.3d 649 (5th Cir.1994); Miller v. Maxwell’s International, Inc., 991 F.2d 583 (9th Cir.1993); Torres v. Intercontinental Trading Inc., 1994 WL 752591 (D.P.R.1994); Hernández" }, { "docid": "17971223", "title": "", "text": "word “agent” in this definition, the purpose was to incorporate the doctrine of respondent superior into the law. Colón Hernández v. Wangen, 938 F.Supp. 1052 (D.P.R.1996); Flamand v. American International Group, 876 F.Supp. 356 (D.P.R.1994), (stating that “the definition of employer, which includes the employer’s agents, serves not as a vehicle to impute liability upon said agent, but rather as a means to incorporate respondent superior liability into the [ADEA]”); Williams v. Banning, 72 F.3d 552 (7th Cir.1995) (stating that “ADA’s definition of employer which (like Title VII) includes an employer’s agents, is simply a statutory expression of traditional respondent superior liability and imposes no individual liability on agents”). See generally Mason v. Stallings, 82 F.3d 1007 (11th Cir.1996); Smith v. Lomax, 45 F.3d 402 (11th Cir.1995); Cross v. Alabama, 49 F.3d 1490 (11th Cir.1995); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507 (4th Cir.1994); Grant v. Lone Star Co., 21 F.3d 649 (5th Cir.1994); Miller v. Maxwell’s International, Inc., 991 F.2d 583 (9th Cir.1993); Torres v. Intercontinental Trading Inc., 1994 WL 752591 (D.P.R.1994); Hernández v. Miranda Velez, 1994 WL 394855 (D.P.R.1994). The majority of the circuits have concluded that there is no personal liability of agents and/or supervisors under Title VII and/ or ADEA, 29 U.S.C. § 621 et seq. because said individual persons are not “employers” within the act. See Tomka v. Seiler Corp., 66 F.3d 1295, 1313-1317 (2nd Cir.1995); EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1281 (7th Cir.1995); Lenhardt v. Basic Institute of Technology, Inc., 55 F.3d 377 (8th Cir.1995); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir.1994); Grant v. Lone Star Co., 21 F.3d 649, 651-653(5th Cir.1994); Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir.1993); Smith v. Lomax, 45 F.3d 402, 403-404 (11th Cir.1995) As stated in Colón Hernández, 938 F.Supp. 1052, “individual defendants [as are Co-defendants Colón and Rodríguez] are not liable under Title VII. Title VII leaves it to the corporate entities, which are held liable for the discriminatory acts of these individuals, to deter the individuals’ unlawful employment practices. This includes not only the" }, { "docid": "5606525", "title": "", "text": "OPINION AND ORDER DOMINGUEZ, District Judge. The Plaintiffs, Rafael Viera Diaz, My-riam Gomez Rivera, and their conjugal partnership, filed this action against Defendants, Antilles Conversion & Export, Inc. (“Antilles”), Esteban Ayala (“Ayala”), and Evelio Cervantes (“Cervantes”), on August 7, 1998. (Docket No. 1). The Complaint states that “[t]his Honorable Court enjoys jurisdiction of this action upon 29 USC Sec. 626(b); 29 USC Sec. 217; and 29 USC Sec. 216(b).” Id. The only violation alleged was of 29 U.S.C. § 623(a)(1). Id. Defendants’ Motion To Dismiss (Docket No. 3) was filed on December 16, 1998. Therein, the Defendants, argue that: (1) the claims against Co-defendants Ayala and Cervantes should be dismissed because the ADEA does not provide for the imposition of individual liability; (2) Plaintiffs’ action is time-barred because Plaintiff, Rafael Viera Diaz, did not comply with ADEA’s requisite to file a complaint with the Equal Employment Opportunity Commission (“EEOC”); and (3) this Court lacks subject matter jurisdiction over Plaintiffs’ ADEA claims because Antilles is not “employer” with 20 or more employees during the relevant period. INDIVIDUAL LIABILITY First, the Court agrees that the ADEA does not provide for the imposition of individual liability. The First Circuit Court of Appeals and the Supreme Court have yet to decide this issue of individual liability of supervisors. See e.g. Serapion v. Martinez, 119 F.3d 982, 992 (1st Cir.1997) (circuit has not resolved issue and declined to address); see also Scarfo v. Cabletron Systems, Inc., 54 F.3d 931, 951-952 (1st Cir.1995). This district, and in particular the undersigned, has followed the majority of circuits that have confronted this issue holding that no personal liability can attach to agents and supervisors under Title VII or ADEA. See Acevedo Vargas v. Colon, 2 F.Supp.2d 203, 206-207 (D.P.R.1998) (Title VII); Contreras Bordallo v. Banco Bilbao Vizcaya de P.R., 952 F.Supp. 72 (D.P.R.1997) (Title VII); Rodriguez v. Puerto Rico Marine Management, Inc., 975 F.Supp. 115, 120 (D.P.R.1997) (ADEA). Therefore, the case against Co-defendants Ayala and Cervantes is hereby DISMISSED WITH PREJUDICE. LIMITATIONS AND EQUITABLE TOLLING Second, the Court turns to the argument that Plaintiffs’ action is time-barred because" }, { "docid": "2120384", "title": "", "text": "J.). See also Hernandez v. Wangen, 938 F.Supp. 1052 (D.P.R.1996) (Laffitte, J.) (whose holding dismissing a Title VII claim against a supervisor in his personal capacity followed those of various First Circuit district courts); Pantoja v. General Instruments, 1996 WL 790102 (D.P.R.1996) (Pérez Giménez, J.); and Bonano v. Banco Bilbao Vizcaya; 952 F.Supp. 72 (D.P.R.1997) (Dominguez). We find Hernandez ’ argument to the effect that supervisors should not be subject to individual liability under Title VII persuasive, and thus incorporate it almost verbatim. As Judge Laffitte stated, “[t]here is absolutely no mention in the statutory language or in the legislative history of Title VIPs application to individual defendants. As it had with other civil rights statutes such as section 1981, Congress could have included individuals like supervisors as potential liable parties,” and yet it didn’t. 938 F.Supp. at 1064. Moreover, \"... [s]everal provisions of Title VII are clearly inapplicable to individuals.” Id. Given the preceding facts, the Court concluded that: “it would be nothing short of bizarre if Congress placed such heightened emphasis and concern on limiting the damages recoverable against small corporate entities and, yet simultaneously, silently exposed all individual defendants to unlimited liability.” Id. at 1065. Based on the forgoing, we conclude, as the Hernandez court did, that until Congress decides otherwise, individual defendants like Mr. Dávila should not be held liable under ADA. Defendant’s motion (Docket #23) is thus, hereby GRANTED. Pendent jurisdiction claim It is hornbook law that a district court has discretion to exercise supplemental jurisdiction over the state law claims where the state and federal claims derive from a common nucleus of operative facts. See, 28 U.S.C. sec. 1367; United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). Nevertheless, where, as here, all federal claims warrant dismissal prior to trial, the district court should decline to exercise supplemental jurisdiction. It has been stated that the holding in Gibbs “seems clearly to require dismissal without action on the merits and without any exercise of discretion if all the federal claims ... are found to be short of" }, { "docid": "17971224", "title": "", "text": "v. Miranda Velez, 1994 WL 394855 (D.P.R.1994). The majority of the circuits have concluded that there is no personal liability of agents and/or supervisors under Title VII and/ or ADEA, 29 U.S.C. § 621 et seq. because said individual persons are not “employers” within the act. See Tomka v. Seiler Corp., 66 F.3d 1295, 1313-1317 (2nd Cir.1995); EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1281 (7th Cir.1995); Lenhardt v. Basic Institute of Technology, Inc., 55 F.3d 377 (8th Cir.1995); Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir.1994); Grant v. Lone Star Co., 21 F.3d 649, 651-653(5th Cir.1994); Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir.1993); Smith v. Lomax, 45 F.3d 402, 403-404 (11th Cir.1995) As stated in Colón Hernández, 938 F.Supp. 1052, “individual defendants [as are Co-defendants Colón and Rodríguez] are not liable under Title VII. Title VII leaves it to the corporate entities, which are held liable for the discriminatory acts of these individuals, to deter the individuals’ unlawful employment practices. This includes not only the corporate entity’s own employees but those individuals who work for the employer outside the company”. Recapitulating, there are two convincing arguments that impress the court, adopted by Circuit and District Courts in analyzing potential personal liability under Title VII. ( See generally Contreras Bordallo v. Banco Bilbao Vizcaya, 952 F.Supp. 72, 73, n.2 (D.P.R.1997) and Flamand 876 F.Supp. at 361-64 containing the circuit court opinions discussing personal liability of supervisors and/or agents.) First the definition of “employer” under the Act, 42 U.S.C. § 2000e(b), which includes the employer’s “agents”, is not a vehicle to impute liability upon said agent, but a means to incorporate respondent superior liability into the law. Maxwell’s Int’l Inc., 991 F.2d at 587; Tomka, 66 F.3d at 1314 (“there is a noticeable absence of any mention of agent liability in the floor debates over § 2000e(b)”.) Second the statutory scheme of Title VII indicates that Congress did not intent to impose individual liability over agents and/ or supervisors as employees. Title VII limits the liability to employers with fifteen or more" }, { "docid": "2120383", "title": "", "text": "in his individual capacity, but rather argues that the plain language of Title VII, ADEA and ADA subjects an employer’s agent who engages in discriminatory conduct to personal liability for that conduct. Although the First Circuit has yet to rule on the forgoing issue, the prevailing view in this district seems to be that: the relevant provisions of the ADA are almost identical to the language used in both the Age Discrimination in Employment Act (“ADEA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”). Both the ADEA and Title VII forbid discrimination by an “employer”, who is defined as any “person engaged in commerce ... [or] any agent of such a person.” ... Thus, all three statutes provide that a supervisor is an employer. The weight of authority suggests, however, that Congress included the “any agent” language to ensure that courts would impose respondeat superior liability upon employers for the acts of their agents, not upon the agents personally. Anonymous v. Legal Services Corp., 932 F.Supp. 49, 50-51 (D.P.R.1996) (Pérez Giménez, J.). See also Hernandez v. Wangen, 938 F.Supp. 1052 (D.P.R.1996) (Laffitte, J.) (whose holding dismissing a Title VII claim against a supervisor in his personal capacity followed those of various First Circuit district courts); Pantoja v. General Instruments, 1996 WL 790102 (D.P.R.1996) (Pérez Giménez, J.); and Bonano v. Banco Bilbao Vizcaya; 952 F.Supp. 72 (D.P.R.1997) (Dominguez). We find Hernandez ’ argument to the effect that supervisors should not be subject to individual liability under Title VII persuasive, and thus incorporate it almost verbatim. As Judge Laffitte stated, “[t]here is absolutely no mention in the statutory language or in the legislative history of Title VIPs application to individual defendants. As it had with other civil rights statutes such as section 1981, Congress could have included individuals like supervisors as potential liable parties,” and yet it didn’t. 938 F.Supp. at 1064. Moreover, \"... [s]everal provisions of Title VII are clearly inapplicable to individuals.” Id. Given the preceding facts, the Court concluded that: “it would be nothing short of bizarre if Congress placed such heightened emphasis and concern" }, { "docid": "16070115", "title": "", "text": "Rico, art. 1802-1803, P.R.Laws Ann. tit. 31, §§ 5141-5142. (Docket No. 30, p. 3). The Court agrees in part, and briefly explains. (1) Julia’s ADA claim. This Court has recently addressed this issue as follows: “First, the Court agrees that the ADEA does not provide for the imposition of individual liability. The First Circuit Court of Appeals and the Supreme Court have yet to decide this issue of individual liability of supervisors. See e.g. Serapion v. Martinez, 119 F.3d 982, 992 (1st Cir.1997) (circuit has not resolved issue and declined to address); see also Scarfo v. Cabletron Systems, Inc., 54 F.3d 931, 951-952 (1st Cir.1995) (similar). This district, and in particular the undersigned, has followed the major ity of circuits that have confronted this issue holding that no personal liability can attach to agents and supervisors under Title VII or ADEA. See Acevedo Vargas v. Colon, 2 F.Supp.2d 203, 206-207 (D.P.R.1998) (Title VII); Contreras Bordallo v. Banco Bilbao Vizcaya de P.R., 952 F.Supp. 72 (D.P.R.1997) (Title VII); Rodriguez v. Puerto Rico Marine Management, Inc., 975 F.Supp. 115, 120 (D.P.R.1997) (ADEA).” Diaz v. Antilles Conversion & Export, Inc., 62 F.Supp.2d 463, 465 (D.P.R.1999) (DRD) (ADEA); see Vicenty Martell v. Estado Libre Asociado de P.R., 48 F.Supp.2d 81, 87 (D.P.R.1999) (SEC) (ADA and ADEA); Sifre v. Department of Health, 38 F.Supp.2d 91, 105-106 (D.P.R.1999) (JP) (ADA and Rehabilitation Act); Figueroa v. Fajardo, 1 F.Supp.2d 117, 120 (D.P.R.1998) (RLA)(ADA); Rivera Rodriguez v. Police Dep’t of P.R., 968 F.Supp. 783, 785-786 (D.P.R.1997) (JP)(ADA); Moreno v. John Crane, Inc., 963 F.Supp. 72, 76 (D.P.R.1997) (SEC)(ADA); Figueroa v. Mateco, Inc., 939 F.Supp. 106, 107 (D.P.R.1996) (PG) (ADEA); Hernandez v. Wangen, 938 F.Supp. 1052, 1063-65 (D.P.R.1996) (HL) (Title VII); Anonymous v. Legal Serv. Corp., 932 F.Supp. 49, 50-51 (D.P.R.1996) (PG)(ADA); Flamand v. American Int’l Group, Inc., 876 F.Supp. 356, 361-64 (D.P.R.1994) (HL) (ADEA); see also Meara v. Bennett, 27 F.Supp.2d 288, 290 (D.Mass.1998) (ADA); Miller v. CBC Companies, Inc., 908 F.Supp. 1054, 1065 (D.N.H.1995) (ADA); see generally Montez v. Romer, 32 F.Supp.2d 1235, 1241 (D.Colo.1999) (Rehabilitation Act); Baublitz v. California, No. C98-0434 CRB, 1998 WL 427444 at" } ]

[ { "docid": "20125495", "title": "", "text": "car when prompted to do so by the officer’s demand. Id. at 246. There was some dispute whether Brown had fully placed his hands on the car or was in the process of doing so when he attempted to flee (after which a firearm was discovered on his person). But, we determined this dispute was not relevant because either way, Brown demonstrated more than momentary compliance by “turning to face the police car and placing (or moving to place) his hands on the vehicle.” Id. We determined that Brown’s movement to face the car and movement of his hands to the car hood was a submission to the officer’s show of authority and effectuated a seizure. Brown is distinguishable. The officer told Brown he was not free to go until the robbery victim arrived. Brown had already submitted to this show of authority (the officer’s demand for him to stay) when the officer asked him to face the car and place his hands on the hood. While the moment that Brown turned to face the car was the first physical contact between the officer and the defendant, Brown already had submitted by following the officer’s order to stay put. In other words, his submission by that point was manifest. In United States v. Valentine, decided six years before Brown, we found momentary compliance was not enough to trigger a seizure under Hodari D. 232 F.3d 350, 359 (3d Cir.2000). In Valentine, two uniformed officers in a marked car responding to an anonymous tip approached Valentine and two others in a parking lot. The three men began walking away from the police immediately. Id. at 353. An officer ordered Valentine to come over and place his hands on the car. Valentine responded, ‘Who me?” and then charged towards one of the officers in an attempt to flee. Id. Even accepting Valentine’s version of events in which he claims to have momentarily complied with the officer’s orders because he stopped and “gave his name,” we found “he did not submit in any realistic sense to the officer’s show of authority.” Id. at" } ]

[ { "docid": "2664692", "title": "", "text": "may submit to authority by not getting up to run away.” Id. at 262, 127 S.Ct. 2400. In either case, a show of authority without actual submission is no more than an “attempted seizure,” and a suspect’s conduct in the interval between the show of authority and the submission can be considered in determining the reasonableness of the eventual seizure. Id. at 254, 127 S.Ct. 2400 (citing Hodari D., 499 U.S. at 626 n. 2, 111 S.Ct. 1547). We therefore turn to the two questions presented in this case: (1) When did Lowe actually submit to the show of authority?, and (2) Did the facts known to the officers at that moment of seizure give rise to reasonable suspicion? A. The District Court cited to Campbell, 332 F.3d at 206, in finding that the seizure occurred the instant that the officers repeated their commands to Lowe. Lowe, 2014 WL 99452, at *5. It concluded that Lowe “submitted” at that moment by “not fleeing.” Id. However, Campbell arose in a very different context and is therefore of little assistance to our inquiry. There, a single officer made a hand gesture to an individual seated in a parked van indicating that the officer wanted that individual to roll down his window. Campbell, 332 F.3d at 203. When the individual did not comply, the officer persisted in making the same request. Id. We found that, because an objective person in the individual’s situation would have felt free to decline the officer’s first gesture, the first request was not a show of authority for Fourth Amendment purposes. Id. at 206. Rather, we held that an objective person would only reasonably not have felt free to decline the interaction after the officer repeated his motion, and we thus concluded that that the repetition of the motion was the “show of authority” component of the seizure under the Fourth Amendment. Id. Since the individual submitted immediately by remaining seated in the van, he was seized when the officer repeated his request. Id. That case does not, however, stand for a per se rule that an officer" }, { "docid": "14953579", "title": "", "text": "2400); see also United States v. Waterman, 569 F.3d 144, 146 n. 3 (3d Cir.2009) (stating that submission to authority under Hodari D. “requires at minimum, that a suspect manifest compliance with police orders”). C. Mr. Salazar was not seized until he submitted to Trooper Berner’s show of authority by obeying the command to get out of his truck. Applying Hodari D., the parties agree that Trooper Berner’s activation of his flashing lights constituted a show of authority. See Aplt’s Br. at 17 (stating that “[t]he activation of a patrol car’s emergency lights is a well accepted ‘show of authority’ commanding the driver to stop his vehicle and submit to an investigative detention”); Aple’s Br. at 13 (stating that “[a]n officer’s activation of a vehicle’s emergency lights appears coercive to a reasonable person”) (internal quotation marks and citation omitted); see also Brower v. County of Inyo, 489 U.S. 593, 598, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) (stating that “a police car pursuing with flashing lights” is “a significant show of authority”). The government and Mr. Salazar disagree as to the moment when Mr. Salazar should have recognized the assertion of authority and the moment when he submitted to that authority. In particular, as to the moment of recognition, the government maintains that, as the patrol ear first approached Mr. Salazar’s pickup truck with its emergency lights activated, “[n]o reasonable person in Mr. Salazar’s position could have misunderstood that the show of authority was directed at him.” Aplt’s Br. at 18. Mr. Salazar responds by invoking the district court’s finding that he did not recognize Trooper Berner’s show of authority until a few seconds later, ie. “some time after [the patrol car] stopped in front of the pickup.” Aplt’s Br. at 18-19 (quoting Aplt’s App. at 71 n. 2). As to the second part of the Hodari D. inquiry, the government maintains that Mr. Salazar did not submit to Trooper Berner’s show of authority until he complied with the command to get out of his truck. In response, Mr. Salazar defends the district court’s ruling that his submission began when" }, { "docid": "2664704", "title": "", "text": "(“[W]e conclude that the officers had reasonable suspicion after they received the face-to-face tip, were in a high-crime area at 1:00 a.m., and saw Valentine and his two companions walk away as soon as they noticed the police car.”). The officers made a show of authority to which Lowe submitted as they approached. No additional facts developed before the stop would have supported a reasonable suspicion that Lowe was engaged in criminal activity. Thus, contrary to the Government’s arguments, we have no occasion to consider Lowe’s failure to comply with the order to show his hands, as that noncompliance happened after the moment of seizure. Additionally, we need not resolve whether Lowe’s steps backwards were taken a moment before or after the seizure, as even if Lowe had stepped back before he was seized, that extra fact in these circumstances would not have given the officers reasonable suspicion. See Lowe, 2014 WL 99452, at *3. As explained above, we concur with the District Court that the steps were not suspicious and were more suggestive of simple surprise than criminality. Moreover, both the tip and its level of corroboration here are very similar to the circumstances in Florida v. J.L. The J.L. Court not only held that the officers did not have reasonable suspicion for the stop, it emphasized that it was not even a “close case.” Id. at 271, 120 S.Ct. 1375. As we have stated, our reasonable suspicion analysis must be limited to the facts known to the officers when they effected a Terry stop. Thus, because we conclude that Lowe was seized when the officers approached him and he stayed put outside Witherspoon’s house, the Government lacked reasonable suspicion at the moment of seizure. IV. We realize that it is in the interest of public safety and the safety of police for officers to be able to ascertain whether people are armed, and that .one of the most efficient ways to do this is for officers to stop and frisk individuals who have aroused suspicion. However, the Fourth Amendment limits law enforcement’s pow er to seize individuals to" }, { "docid": "20228766", "title": "", "text": "the defendant to “just hang out right here for me, okay?”); Northrop v. Trippett, 265 F.3d 372, 380 (6th Cir.2001) (holding that a reasonable person would not feel free to leave when, after defendant sought to leave the area, one officer directed another officer to stop him and the officers asked him to produce identification); United States v. Buchanon, 72 F.3d 1217, 1223 (6th Cir.1995) (noting that words requiring compliance may be enough to make a reasonable person feel that they are not free to leave). The interaction at the fence is also the moment of the seizure because it was when Beauchamp complied with the officer’s instructions and submitted to the officer’s show of authority. “[W]hat may amount to submission depends on what a person was doing before the show of authority. ...” Brendlin, 551 U.S. at 262, 127 S.Ct. 2400. Here, Beauchamp was walking away from the officer and was separated from him by a wrought iron fence. Upon the officer’s instruction, he stopped and walked toward the officer, and again upon the officer’s instruction, walked around the fence that separated them. Just as “[s]topping after being ordered to stop triggers the Fourth Amendment,” Johnson, 620 F.3d at 691, so too does changing course and complying with an officer’s requests. See also United States v. Jones, 562 F.3d 768, 774-75 (6th Cir. 2009) (holding that defendant was not seized until he complied with officer’s order to stop); Smith, 594 F.3d at 539 n. 4 (holding that defendant was seized when officers instructed him to stop and he complied); cf. California v. Hodari D., 499 U.S. 621, 625-26, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (holding that, assuming that officer’s car pursuit constituted a “show of authority,” defendant was not seized when he ran away). For these reasons, we conclude that Beauchamp was seized when, in compliance with Officer Fain’s instructions, he stopped, turned around, faced the uniformed officer and the marked patrol car, and began to walk toward the officer. It is clear that the police do not make unreasonable seizures “merely by approaching individuals on the street" }, { "docid": "2664687", "title": "", "text": "to Officer Campbell’s recollection regarding Mr. Lowe’s compliance with the order to raise his hands.” Id. The District Court did not resolve some significant conflicts in the police officers’ testimony. This includes conflicting testimony regarding whether Lowe put his hands on the wall voluntarily, or whether his hands were placed there by the officers. The District Court also failed to resolve the discrepancies in the police officers’ testimony about the number of times they ordered Lowe to show his hands and their distance from him when they issued those orders. Though the District Court’s lack of precision fuels some of the appellate arguments, the Findings of Fact that the court did make .are sufficient to allow us to determine the legality of Lowe’s seizure. B. The District Court reached the following conclusion of law regarding when the interaction became a stop for Fourth Amendment purposes: The encounter between the officers and Mr. Lowe did not become a Terry stop at the officers’ first command that Lowe remove his hands from his pockets; instead, “the interaction became a stop” when the officers repeated their commands, “ma[king] it clear that [the suspect] was not free to ignore [the officers] and would not be left alone until he complied.” Johnson v. Campbell, 332 F.3d 199, 206 (3d Cir.2003) (finding that stop occurred after officer’s second command to individual to roll down his car window). Lowe, 2014 WL 99452, at *5. The District Court thus held that “Lowe was seized within the meaning of the Fourth Amendment at the point when the officers repeated their commands to him, and he responded by not fleeing.” Id. Accordingly, the District Court found that Lowe’s failure to show his hands in response to the officers’ initial commands could be considered in the totali ty of the circumstances in evaluating reasonable suspicion. The court found that the officers were aware of the following pieces of information at the moment of seizure: an anonymous tip that a male matching Mr. Lowe’s description was engaged in criminal activity, the fact that 914 North Markoe Street was located in a high-crime" }, { "docid": "2664703", "title": "", "text": "Police may only seize a person consistent with the Fourth Amendment if they have reasonable, articulable, and individualized suspicion that a suspect is engaged in criminal activity. See Wardlow, 528 U.S. at 123, 120 S.Ct. 673; Terry, 392 U.S. 1, 88 S.Ct. 1868. Here, the facts known to the officers when they first approached Lowe included “an anonymous tip that a male matching Mr. Lowe’s description was [in possession of a gun], the fact that 914 North Markoe Street was located in a high-crime neighborhood in which a shooting had occurred over an hour earlier, [and] the late hour of the night.” Lowe, 2014 WL 99452, at *5. The Government conceded in its Appellee Brief and at oral argument in Lowe I, as it must, that these facts alone did not givé rise to reasonable suspicion to stop Lowe. Gov. Br. 19; Supp.App. 46-47; see Florida v. J.L., 529 U.S. 266, 270-72, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000); Roberson, 90 F.3d at 80; cf. United States v. Valentine, 232 F.3d 350, 357 (3d. Cir.2000) (“[W]e conclude that the officers had reasonable suspicion after they received the face-to-face tip, were in a high-crime area at 1:00 a.m., and saw Valentine and his two companions walk away as soon as they noticed the police car.”). The officers made a show of authority to which Lowe submitted as they approached. No additional facts developed before the stop would have supported a reasonable suspicion that Lowe was engaged in criminal activity. Thus, contrary to the Government’s arguments, we have no occasion to consider Lowe’s failure to comply with the order to show his hands, as that noncompliance happened after the moment of seizure. Additionally, we need not resolve whether Lowe’s steps backwards were taken a moment before or after the seizure, as even if Lowe had stepped back before he was seized, that extra fact in these circumstances would not have given the officers reasonable suspicion. See Lowe, 2014 WL 99452, at *3. As explained above, we concur with the District Court that the steps were not suspicious and were more suggestive of" }, { "docid": "20228765", "title": "", "text": "acknowledged that Beauchamp “didn’t want to be there with [him].” Second, a reasonable person in Beau-champ’s position would perceive that the officer’s instructions that he stop and that he move around the fence required compliance and restricted his ability to walk away. By this point, Beauchamp had indicated that he did not want to speak with the police by walking away two times; a reasonable person would not have felt free to walk away a third time after an officer had given him express instructions to do otherwise. See United States v. Johnson, 620 F.3d 685, 690-91 (6th Cir.2010) (holding that a reasonable person would not feel free to leave when two officers arrived in marked police cars and ordered defendant to stop); Smith, 594 F.3d at 539 (holding that once a police officer asked the defendant to stop, a reasonable person would not feel free to leave); United States v. Richardson, 385 F.3d 625, 630 (6th Cir. 2004) (holding that a reasonable person would not feel free to leave when a police officer told the defendant to “just hang out right here for me, okay?”); Northrop v. Trippett, 265 F.3d 372, 380 (6th Cir.2001) (holding that a reasonable person would not feel free to leave when, after defendant sought to leave the area, one officer directed another officer to stop him and the officers asked him to produce identification); United States v. Buchanon, 72 F.3d 1217, 1223 (6th Cir.1995) (noting that words requiring compliance may be enough to make a reasonable person feel that they are not free to leave). The interaction at the fence is also the moment of the seizure because it was when Beauchamp complied with the officer’s instructions and submitted to the officer’s show of authority. “[W]hat may amount to submission depends on what a person was doing before the show of authority. ...” Brendlin, 551 U.S. at 262, 127 S.Ct. 2400. Here, Beauchamp was walking away from the officer and was separated from him by a wrought iron fence. Upon the officer’s instruction, he stopped and walked toward the officer, and again upon the" }, { "docid": "23221054", "title": "", "text": "display of weapons; any physical touching of the suspect, and the language and tone of voice of the police.” United States v. De La Rosa, 922 F.2d 675, 678 (11th Cir.1991). A seizure occurs for Fourth Amendment purposes, however, “ ‘only when, by means of physical force or a show of authority, [a person’s] freedom of movement is restrained.’ ” Craig v. Singletary, 127 F.3d 1030, 1041 (11th Cir. 1997) (quoting United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). Here, we readily conclude the circumstances indicate only a consensual encounter and, accordingly, did not result in a Fourth Amendment violation. Lt. Gonzalez’s uncontroverted testimony showed that he approached Perez’s group and asked if they were okay, given the rough weather and late hour of the encounter. When he inquired whether they had identification, but did not specifically ask to see it, all of the men “automatically produced” Florida driver’s licenses. He spoke with them in a “conversational” tone and, although he was in uniform, his firearm remained holstered. Lt. Gonzalez briefly flashed his blue lights, but only to identify himself as a police officer because he arrived at the scene in an unmarked car. Notably, at no point did Lt. Gonzalez block Valdez’s truck or otherwise obstruct Perez, Valdez, or the others’ exit from the area. It also was undisputed that during the encounter Perez offered to get the registration from the boat, invited Lt. Gonzalez aboard the boat, and then proceeded voluntarily to open the cabin door, which led to the discovery of the Cuban nationals. Lt. Gonzalez asked neither to board the boat nor to see the interior of the cabin. On this record, viewing the totality of the circumstances, there was no “show of authority that communicate[d] to the individual that his liberty [was] restrained, meaning he [was] not free to leave.” United States v. Baker, 290 F.3d 1276, 1278 (11th Cir.2002). There was no Fourth Amendment “seizure” because a reasonable person would have felt free to leave. Accordingly, the district court did not err by denying Perez’s motion to" }, { "docid": "2664700", "title": "", "text": "for a weapon or otherwise acted to rebuff the officers’ authority. Indeed, one responding officer described him as “frozen” and another testified that Lowe looked “shocked.” When an officer effectuates a Terry stop, his or her “show of authority” is an implicit or explicit command that the person stop. See Hodari D., 499 U.S. at 626, 111 S.Ct. 1547 (discussing how the word “seizure,” in “[t]he language of the Fourth Amendment,” necessarily implies an actual stop). We thus reject the Government’s contention that, because Lowe did not comply with the officers’ order to show his hands, he failed to “submit” for Fourth Amendment purposes to the officers’ show of authority — which was, of course, an entirely different order. Indeed, “[i]t would be an unnatural reading of the case law to hold that a defendant who is ordered to stop is not seized until he stops and complies with a subsequent order to raise his hands.” Johnson, 620 F.3d at 691. Rather, we hold that when a stationary suspect reacts to a show of authority by not fleeing, making no threatening movement or gesture, and remaining stationary, he has submitted under the Fourth Amendment and a seizure has been effectuated. We also reject the Government’s argument that Lowe did not immediately submit to the show of authority because the District Court found that Lowe “took several steps backing away” as the officers approached. Lowe, 2014 WL 99452, at *3. The Government analogizes those steps back to the fleeing suspect in Hodari D.,,, arguing that since Lowe did not remain in place, he had not yet submitted before refusing to raise his hands. Therefore, the Government argues, his steps can be considered in the reasonable suspicion analysis. We decline to equate Lowe’s few backward steps upon seeing several uniformed . officers rush toward him with headlong flight — particularly where the District Court’s findings are to the contrary. The District Court expressly found that “Mr. Lowe submitted to the officers’ show of authority by not fleeing from them when the commands to take his hands out of his pockets were repeated.”" }, { "docid": "2664699", "title": "", "text": "to stop when approached by an officer, see United States v. Freeman, 735 F.3d 92, 95-97 (2d Cir.2013) (holding that a suspect who continued walking when approached by a police officer did not submit until physically restrained by the officer); United States v. Johnson, 620 F.3d 685, 691 (6th Cir.2010) (noting that, “for a person who is moving, to ‘yield’ most sensibly means to stop”), or when a suspect makes suspicious motions consistent with reaching for a weapon, see United States v. Johnson, 212 F.3d 1313, 1316-17 (D.C.Cir.2000) (holding that a suspect did not submit to a show of authority when he made “continued furtive . gestures” including “shoving down” motions that were “suggestive of hiding (or retrieving) a gun”). Unlike the suspects in those cases, Lowe stayed put in front of Witherspoon’s house when the officers converged and shouted commands at him to show his hands. At that point, the record does not reflect that he made any threatening gesture or moved his hands or arms in any way, much less that he reached for a weapon or otherwise acted to rebuff the officers’ authority. Indeed, one responding officer described him as “frozen” and another testified that Lowe looked “shocked.” When an officer effectuates a Terry stop, his or her “show of authority” is an implicit or explicit command that the person stop. See Hodari D., 499 U.S. at 626, 111 S.Ct. 1547 (discussing how the word “seizure,” in “[t]he language of the Fourth Amendment,” necessarily implies an actual stop). We thus reject the Government’s contention that, because Lowe did not comply with the officers’ order to show his hands, he failed to “submit” for Fourth Amendment purposes to the officers’ show of authority — which was, of course, an entirely different order. Indeed, “[i]t would be an unnatural reading of the case law to hold that a defendant who is ordered to stop is not seized until he stops and complies with a subsequent order to raise his hands.” Johnson, 620 F.3d at 691. Rather, we hold that when a stationary suspect reacts to a show of authority" }, { "docid": "2664695", "title": "", "text": "the District Court did not make explicit findings about the speed with which the officers approached Lowe, the record indicates that they arrived in a hurried manner and at least one drew his firearm at some point during the encounter. A reasonable person in Lowe’s position would not have felt free to decline this interaction, turn, and leave. Indeed, the Government candidly conceded that the officers made a show of authority from the moment they first approached Lowe. See United States v. Waterman, 569 F.3d 144, 144-46 (3d Cir.2009) (holding that a show of authority occurred when two uniformed police officers approached a house and commanded that people on the porch show their hands); cf. United States v. Smith, 575 F.3d 308, 314 (3d Cir.2009) (holding that there was no show of authority when two officers repeatedly asked an individual ‘Where is your girl’s house?”, but where “the two officers were still in their car, neither officer displayed his weapon, there was no physical touching, and no indication as to the language or tone of the officer’s voice that might have signaled a clear show of authority”). On this record, the officers’ approach constituted a show of authority, as a reasonable person in Lowe’s position would not have felt free to decline the interaction or leave. However, that does not end our inquiry. We must also determine when Lowe submitted to that show of authority. Because the order of events is critical here, we must address the parties’ arguments regarding the District Court’s Findings of Fact before inquiring into when Lowe submitted. B. When read chronologically, the findings indicate that Lowe stepped backwards “[a]s the officers steadily moved toward [him,]” and that the officers did not “g[i]ve Mr. Lowe multiple commands to raise his hands or take his hands out of his pockets” until they were “in close proximity.” Lowe, 2014 WL 99452, at *3; see also Westport Ins. Corp. v. Bayer, 284 F.3d 489, 498 (3d Cir.2002) (according plain meaning to the district court’s choice of language in affirming its “implicit” findings of fact). These findings control because they" }, { "docid": "20228761", "title": "", "text": "v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), all seizures — including brief investigatory stops — receive this protection, see Smith, 594 F.3d at 535. Accordingly, the first issue before us is whether the initial interaction between Officer Fain and Beauchamp was a consensual encounter or a non-consensual seizure. 1. Moment of Seizure An individual is seized when an officer “by means of physical force or show of authority, has in some way restrained [his] liberty.” Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also Tennessee v. Garner, 471 U.S. 1, 7, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (stating that “[w]henever an officer restrains the freedom of a person to walk away, he has seized that person”). If the officer acts by a show of authority, as in this case, the individual must actually submit to that authority. Brendlin v. California, 551 U.S. 249, 254, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). In order to determine if a seizure has occurred, we will look to “all of the circumstances surrounding the incident” and consider whether “a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). A reasonable person in Beau-champ’s position would not have felt free to leave when, after walking away from the police two times, an officer targeted Beau-champ by driving up to him, instructed him to stop, and then instructed him to turn around and walk toward the officer. Two features of the encounter compel this finding. First, a reasonable person in Beauchamp’s position would perceive the separate interactions with Officer Dees and then Officer Fain as connected and an indication that the officers were targeting him. There certainly could be situations in which a reasonable person would not perceive police interactions as connected; perhaps if there was a longer period of time between interactions or if they occurred in different locations. In this case, however, Beauchamp encountered Officer Dees and walked away, and" }, { "docid": "2664698", "title": "", "text": "to provide the officer with his identification). Instead, failure to submit has been found where a- suspect takes action that clearly indicates that he “does not yield” to the officers’ show of authority. Hodari D., 499 U.S. at 626, 111 S.Ct. 1547. Action— not passivity — has been the touchstone of our analysis. The most obvious example is when a suspect runs from the police. See Wardlow, 528 U.S. at 121, 120 S.Ct. 673; Hodari D., 499 U.S. at 626, 111 S.Ct. 1547; Brower v. Cnty. of Inyo, 489 U.S. 593, 596-97, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). However, headlong flight is not required if a suspect otherwise takes action to evade or threaten a police officer. For example, in United States v. Waterman, we found no submission where a suspect responded to commands to show his hands by reaching to his waistband and retreating through a door behind him and out of the officers’ presence entirely. 569 F.3d at 145. Other courts have found no submission when a suspect already in motion refuses to stop when approached by an officer, see United States v. Freeman, 735 F.3d 92, 95-97 (2d Cir.2013) (holding that a suspect who continued walking when approached by a police officer did not submit until physically restrained by the officer); United States v. Johnson, 620 F.3d 685, 691 (6th Cir.2010) (noting that, “for a person who is moving, to ‘yield’ most sensibly means to stop”), or when a suspect makes suspicious motions consistent with reaching for a weapon, see United States v. Johnson, 212 F.3d 1313, 1316-17 (D.C.Cir.2000) (holding that a suspect did not submit to a show of authority when he made “continued furtive . gestures” including “shoving down” motions that were “suggestive of hiding (or retrieving) a gun”). Unlike the suspects in those cases, Lowe stayed put in front of Witherspoon’s house when the officers converged and shouted commands at him to show his hands. At that point, the record does not reflect that he made any threatening gesture or moved his hands or arms in any way, much less that he reached" }, { "docid": "11098845", "title": "", "text": "without merit. A brief police encounter with an individual can be a detention under the Fourth Amendment if “the circumstances of the encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded.” Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984). A seizure occurs when consideration of all the circumstances surrounding the encounter shows that the police conduct would have communicated to a reasonable person that he or she was not free to decline the officer’s requests or otherwise terminate the encounter. Florida v. Bostick, 501 U.S. 429, 434, 439, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991); United States v. Lambert, 46 F.3d 1064, 1067-68 (10th Cir.1995). Although a Fourth Amendment seizure does not occur simply because a police officer approaches an individual and asks a few questions, that was not what occurred here. The team may not have intended the questioning to be a nonconsensual detention or seizure, but consideration of all the circumstances compels the conclusion that a reasonable person in Alarcon-Gonzalez’s position would not have felt free to leave after the approach of four to eight armed and uniformed police officers and INS agents and the command to “freeze.” An order to freeze communicates that suspects are not free to leave and is sufficient to effect a seizure. See United States v. Stanley, 915 F.2d 54, 56 (1st Cir.1990). A command by a police officer to “freeze” is intimidating. It carries with it an implied threat to use force if the command is disobeyed. Although Alarcon-Gonzalez knew the command to “freeze” was directed at Carcamo-Perez, he did not feel free to leave. The two roofers were only five feet apart, and were obviously working together. Under these circumstances, the command would communicate to both persons that they were not free to terminate the encounter. See United States v. King, 990 F.2d 1552, 1556 (10th Cir.1993). A reasonable person in Alarcon-Gonzalez’ position would not have believed he was free to leave. The questioning" }, { "docid": "2664701", "title": "", "text": "by not fleeing, making no threatening movement or gesture, and remaining stationary, he has submitted under the Fourth Amendment and a seizure has been effectuated. We also reject the Government’s argument that Lowe did not immediately submit to the show of authority because the District Court found that Lowe “took several steps backing away” as the officers approached. Lowe, 2014 WL 99452, at *3. The Government analogizes those steps back to the fleeing suspect in Hodari D.,,, arguing that since Lowe did not remain in place, he had not yet submitted before refusing to raise his hands. Therefore, the Government argues, his steps can be considered in the reasonable suspicion analysis. We decline to equate Lowe’s few backward steps upon seeing several uniformed . officers rush toward him with headlong flight — particularly where the District Court’s findings are to the contrary. The District Court expressly found that “Mr. Lowe submitted to the officers’ show of authority by not fleeing from them when the commands to take his hands out of his pockets were repeated.” Lowe, 2014 WL 99452, at *5 (emphasis added). Indeed, the District Court found Lowe’s steps so innocuous that it did not even identify them as a factor contributing to reasonable suspicion in its discussion of relevant facts known to the officers at the time of seizure. See id. Therefore, we agree with the determination, implicit in the District Court’s findings, that a few startled steps back in the face of onrushing, armed police officers is entirely consistent with a surprised reaction and even acquiescence. Without Lowe ever having turned around in an attempt to walk, much less run, these few steps backward hardly could transform his limited movement in response to the onrushing officers into flight. See Hodari D., 499 U.S. at 626, 111 S.Ct. 1547. In sum, we hold that Lowe submitted to the officers’ authority by staying put in front of 914 North Markoe Street. Neither his action, in taking a few steps backwards before stopping, nor his inaction, in keeping his hands immobile despite commands to move them, negated that submission. C." }, { "docid": "2664709", "title": "", "text": "as here, the search or seizure was conducted without a warrant. See United States v. Johnson, 63 F.3d 242, 245 (3d Cir.1995). It must establish by a preponderance of the evidence when the seizure occurred and that it was then supported by reasonable suspicion. See id. Here, not only did the Government initially' fail to make a clear showing as to the sequence of events, but it also failed to supplement the record after we remanded in Lowe I for exactly this type of fact-finding. We will not, under these circumstances, indulge in hypothetical and interpret alleged ambiguity in the District Court’s findings in favor of the party with the burden of proof — the Government. See United States v. Coward, 296 F.3d 176, 179-80 (3d Cir.2002). . As noted, the District Court erred by finding that the officers’ show of authority did not occur until they repeated their commands. However, the finding that Lowe did not flee remains instructive as to how the District Court viewed Lowe’s steps backwards as the officers approached. It did not characterize them as flight. . While the Government would have us interpret the District Court's statement that Lowe \"was prevented from moving back more than a few steps by the construction fence” to mean that Lowe intended to flee or was attempting to flee, that argument disregards the District Court’s explicit finding that Lowe was \"not fleeing” and is not supported by authority. Courts have not considered a suspect's subjective intent in this situation. Indeed, “a person who has actually stopped in response to officers’ commands but who looks like he might run” still has submitted to an order to stop. Johnson, 620 F.3d at 692. . In J.L., police received a tip that a \"young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun[,]’’ and they subsequently stopped, frisked, and recovered a gun from a man at that bus stop who met the description. 529 U.S. at 268, 120 S.Ct. 1375. Even considering the neighborhood and hour of the night, the officers had less" }, { "docid": "2664696", "title": "", "text": "the officer’s voice that might have signaled a clear show of authority”). On this record, the officers’ approach constituted a show of authority, as a reasonable person in Lowe’s position would not have felt free to decline the interaction or leave. However, that does not end our inquiry. We must also determine when Lowe submitted to that show of authority. Because the order of events is critical here, we must address the parties’ arguments regarding the District Court’s Findings of Fact before inquiring into when Lowe submitted. B. When read chronologically, the findings indicate that Lowe stepped backwards “[a]s the officers steadily moved toward [him,]” and that the officers did not “g[i]ve Mr. Lowe multiple commands to raise his hands or take his hands out of his pockets” until they were “in close proximity.” Lowe, 2014 WL 99452, at *3; see also Westport Ins. Corp. v. Bayer, 284 F.3d 489, 498 (3d Cir.2002) (according plain meaning to the district court’s choice of language in affirming its “implicit” findings of fact). These findings control because they are not clearly erroneous. Rather, they are supported by the record. See United States v. Roberson, 90 F.3d 75, 77 (3d Cir.1996). The Government’s central argument is that Lowe did not submit to the initial show of authority because he failed to show his hands in response to the officers’ commands. As noted earlier, the Supreme Court has explained that “[an individual] sitting in a chair may submit to authority by not getting up to run away.” Brendlin, 551 U.S. at 262, 127 S.Ct. 2400. The Government’s argument invites us to add “unless the police have instructed him to stand up” to the analysis. Neither Supreme Court precedent nor the law of our Circuit supports such a qualification. See id. (explaining that responding to a show of authority by staying put is a means of passively submitting to that authority); Campbell, 332 F.3d at 206 (holding that the defendant submitted to a show of authority by remaining in place even though he declined the police officer’s initial request to roll down his window and refused" }, { "docid": "2664693", "title": "", "text": "of little assistance to our inquiry. There, a single officer made a hand gesture to an individual seated in a parked van indicating that the officer wanted that individual to roll down his window. Campbell, 332 F.3d at 203. When the individual did not comply, the officer persisted in making the same request. Id. We found that, because an objective person in the individual’s situation would have felt free to decline the officer’s first gesture, the first request was not a show of authority for Fourth Amendment purposes. Id. at 206. Rather, we held that an objective person would only reasonably not have felt free to decline the interaction after the officer repeated his motion, and we thus concluded that that the repetition of the motion was the “show of authority” component of the seizure under the Fourth Amendment. Id. Since the individual submitted immediately by remaining seated in the van, he was seized when the officer repeated his request. Id. That case does not, however, stand for a per se rule that an officer does not assert his or her authority for Fourth Amendment purposes until he or she repeats a command. To the contrary, in determining whether there has been a show of authority, courts must examine all of the surrounding circumstances to determine whether a reasonable person would have felt free to decline the interaction with law enforcement. See Brendlin, 551 U.S. at 255, 127 S.Ct. 2400. In Mendenhall, Justice Stewart identified such factors as “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.). Here, three marked police cars nearly simultaneously arrived at Ms. Witherspoon’s residence at 4 o’clock in the morning. Four uniformed police officers immediately got out of their patrol cars and approached Lowe and Witherspoon, commanding them to show their hands. Although" }, { "docid": "2664708", "title": "", "text": "132 (2007) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.); see also Florida v. Bostick, 501 U.S. 429, 435-36, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991)). However, Hodari D. makes clear that the “so-called Mendenhall test” pertains to the \"show of authority” component of a seizure, and that it \"states a necessary, but not a sufficient, condition for seizure — or, more precisely, for seizure effected through a 'show of authority.’ ” Hodari D., 499 U.S. at 627-28, 111 S.Ct. 1547. . At the oral argument in Lowe I, the Government made this concession during an exchange with the Court. See Supp.App. 37 (\"[A.U.S.A.]: We are not disputing that there was a show of authority, and I hope I'm clear on that.”). . Many of Government's arguments depend on reading the District Court's factual findings as ambiguous as to the order of events, and on adopting the Government's version of the encounter. However, the Government bears the burden at a suppression hearing where, as here, the search or seizure was conducted without a warrant. See United States v. Johnson, 63 F.3d 242, 245 (3d Cir.1995). It must establish by a preponderance of the evidence when the seizure occurred and that it was then supported by reasonable suspicion. See id. Here, not only did the Government initially' fail to make a clear showing as to the sequence of events, but it also failed to supplement the record after we remanded in Lowe I for exactly this type of fact-finding. We will not, under these circumstances, indulge in hypothetical and interpret alleged ambiguity in the District Court’s findings in favor of the party with the burden of proof — the Government. See United States v. Coward, 296 F.3d 176, 179-80 (3d Cir.2002). . As noted, the District Court erred by finding that the officers’ show of authority did not occur until they repeated their commands. However, the finding that Lowe did not flee remains instructive as to how the District Court viewed Lowe’s steps backwards as the officers approached. It" }, { "docid": "2664694", "title": "", "text": "does not assert his or her authority for Fourth Amendment purposes until he or she repeats a command. To the contrary, in determining whether there has been a show of authority, courts must examine all of the surrounding circumstances to determine whether a reasonable person would have felt free to decline the interaction with law enforcement. See Brendlin, 551 U.S. at 255, 127 S.Ct. 2400. In Mendenhall, Justice Stewart identified such factors as “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.). Here, three marked police cars nearly simultaneously arrived at Ms. Witherspoon’s residence at 4 o’clock in the morning. Four uniformed police officers immediately got out of their patrol cars and approached Lowe and Witherspoon, commanding them to show their hands. Although the District Court did not make explicit findings about the speed with which the officers approached Lowe, the record indicates that they arrived in a hurried manner and at least one drew his firearm at some point during the encounter. A reasonable person in Lowe’s position would not have felt free to decline this interaction, turn, and leave. Indeed, the Government candidly conceded that the officers made a show of authority from the moment they first approached Lowe. See United States v. Waterman, 569 F.3d 144, 144-46 (3d Cir.2009) (holding that a show of authority occurred when two uniformed police officers approached a house and commanded that people on the porch show their hands); cf. United States v. Smith, 575 F.3d 308, 314 (3d Cir.2009) (holding that there was no show of authority when two officers repeatedly asked an individual ‘Where is your girl’s house?”, but where “the two officers were still in their car, neither officer displayed his weapon, there was no physical touching, and no indication as to the language or tone of" } ]

[ { "docid": "8171946", "title": "", "text": "properly applied the rule of Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331, in holding that the acts perpetrated outside of Judge Harvey’s courtroom and not then a part of his judicial functions were undertaken in the “absence of all jurisdiction.” These acts involved the defendant’s repeated communications to the press and to city officials over the course of more than a year. These communications were critical of plaintiff and called for action to be taken against him. Many of them were made while plaintiff was awaiting trial on the criminal charges stemming from the John Doe proceeding. Such acts were not judicial because they were not functions normally performed by a judge, and were not “to the expectations of the parties” in that as to these acts the parties did not deal with him in his judicial capacity. 435 U.S. at 362, 98 S.Ct. at 1107. Accordingly, the trial judge instructed the jury that although damages could not be assessed against Judge Harvey for conducting the John Doe proceedings, he could be held liable for his extrajudicial acts. Since no liability was imposed where Judge Harvey enjoyed \"judicial immunity, no error was committed on that score. As to prosecutorial immunity, defendant relies on Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128. Since that case only immunizes a prosecutor when he is “initiating a prosecution and * * * presenting the State’s case” (424 U.S. at 431, 96 S.Ct. at 995), it is of no avail to this defendant. His only prosecutorial function was in connection with his conduct of the John Doe proceedings and the jury had been instructed not to assess any damages against him on that account. Therefore, his prosecutorial immunity was properly observed. Defense of Official Immunity Fails. In the district court and here defendant also contended that he was absolutely immune for his comments as a government official under Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434. That case dealt with a federal official and presumably does not apply to state officials, even" } ]

[ { "docid": "18685443", "title": "", "text": "Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976)). Like the other absolute immunity doctrines, prosecutorial immunity reflects a policy choice between two evils; for in order to serve a broad societal interest in encouraging prosecutorial advocacy unfettered by the threat of retaliatory litigation, see Hill v. City of New York, 45 F.3d 653, 656 (2d Cir.1995), this doctrine “ ‘leaves the genuinely wronged ... without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty.’ ” Pinaud, 52 F.3d at 1147 (quoting Imbler, 424 U.S. at 427, 96 S.Ct. at 993). The existence of the prosecutorial immunity doctrine, however, does not necessarily render Quartararo’s claims untenable simply because he has named individual prosecutors, including former prosecutors, as defendants. “Absolute immunity depends on ‘the nature of the function performed, [and] not on the identity [or status] of the actor who performed it.’” Pinaud, 52 F.3d at 1147 (quoting Forrester v. White, 484 U.S. 219, 229, 108 S.Ct. 538, 545, 98 L.Ed.2d 555 (1988)); see Buckley v. Fitzsimmons, 509 U.S. 259, 268-69, 113 S.Ct. 2606, 2613, 125 L.Ed.2d 209 (1993); Dory v. Ryan, 25 F.3d 81, 83 (2d Cir.1994). “When a prosecutor is engaged in administrative or investigative activities, he is entitled only to qualified immunity, and thus the individual district attorney defendants in this action are to be held absolutely immune from liability under section 1983 only for acts within the scope of then-duties in initiating and pursuing a criminal prosecution.” Pinaud, 52 F.3d at 1147 (internal quotations omitted); see Buckley, 509 U.S. at 273, 113 S.Ct. at 2615 (“A prosecutor’s administrative duties and those investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings are not entitled to absolute immunity.”) (citing Burns v. Reed, 500 U.S. 478, 494-96, 111 S.Ct. 1934, 1944, 114 L.Ed.2d 547 (1991)). Relevant to this action, the question arises concerning the extent to which a prosecutor will be considered to be acting -within the scope of his or her duties in pursuing a criminal prosecution after the" }, { "docid": "23631265", "title": "", "text": "for the function in question.” Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). In Imbler, the Supreme Court held that state prosecutors are absolutely immune from liability under § 1983 for actions performed in a quasi-judicial role. See 424 U.S. at 431, 96 S.Ct. 984. This immunity extends to acts that are “intimately associated with the judicial phase of the criminal process,” such as “initiating a prosecution and ... presenting the State’s case.” Id. at 430-31, 96 S.Ct. 984. The Supreme Court has noted numerous public policy considerations underlying its extension of absolute immunity to prosecutors: [Sjuits against prosecutors for initiating and conducting prosecutions “could be expected with some frequency, for a defendant often will transform his resentment at being prosecuted into the ascription of improper and malicious actions to the State’s advocate”; lawsuits would divert prosecutors’ attention and energy away from their important duty of enforcing the criminal law; prosecutors would have more difficulty than other officials in meeting the standards for qualified immunity; and potential liability “would prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system.” ... [Tjhere are other checks on prosecutorial misconduct, including the criminal law and professional discipline. Burns, 500 U.S. at 485-86, 111 S.Ct. 1934 (citing Imbler, 424 U.S. at 425, 427-28, 429, 96 S.Ct. 984). Since extending absolute immunity to state prosecutors in Imbler, the Supreme Court has clarified that absolute immunity does not extend to “[a] prosecutor’s administrative duties and those investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings.” Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993); see also Burns, 500 U.S. at 494-96, 111 S.Ct. 1934. At the same time, the Court has reaffirmed that “acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity.”" }, { "docid": "7120923", "title": "", "text": "court’s decision to deny absolute immunity. Fletcher v. Kalina, 93 F.3d 653, 654 (9th Cir.1996), aff'd, 522 U.S. 118, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). The party asserting immunity bears the burden to show that such protection is justified. See Burns v. Reed, 500 U.S. 478, 486, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). We presume that qualified rather than absolute immunity sufficiently protects government officials in the exercise of their duties. Id. at 486-87, 111 S.Ct. 1934. 1. When prosecuting an indictment A prosecutor is entitled to absolute immunity from a civil action for damages when he or she performs a function that is “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). A prosecutor’s functions that are protected by absolute immunity include initiating a prosecution and presenting the State’s case, id. at 431, 96 S.Ct. 984, appearing at a probable cause hearing to support an application for a search warrant, Burns, 500 U.S. at 492, 111 S.Ct. 1934, and preparing and filing an arrest warrant. Kalina v. Fletcher, 522 U.S. 118, 129, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). However, the functions of an advocate do not include advising police officers whether probable cause exists during their pretrial investigation, Burns, 500 U.S. at 493, 111 S.Ct. 1934, fabricating evidence before probable cause has been established, Buckley v. Fitzsimmons, 509 U.S. 259, 275, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993), or attesting to the facts that support an arrest warrant. Kalina, 522 U.S. at 130-31, 118 S.Ct. 502. The Supreme Court has not addressed whether a prosecutor is entitled to absolute immunity when assisting with the acquisition of evidence pursuant to a post-indictment search warrant. We have concluded, however, that “[p]rosecutors are absolutely immune from liability for gathering additional evidence after probable cause is established or criminal proceedings have begun when they are performing a quasi-judicial function.” Broam v. Bogan, 320 F.3d 1023, 1030 (9th Cir.2003). The existence of probable cause at the time of the prosecutor’s alleged unconstitutional conduct must be considered" }, { "docid": "22365415", "title": "", "text": "associated with the judicial phase of the criminal process,” in which the prosecutor is acting as “an officer of the court.” Van de Kamp, 555 U.S. at 342, 129 S.Ct. 855 (quoting Imbler, 424 U.S. at 430-31 & n. 33, 96 S.Ct. 984). Absolute immunity also protects those functions in which the prosecutor acts as an “advocate for the State,” even if they “involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom.” Burns, 500 U.S. at 486, 111 S.Ct. 1934 (quoting Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. 984). These actions need not relate to a particular trial and may even be administrative in nature, yet are connected to the trial process and “necessarily require legal knowledge and the exercise of related discretion.” Van de Kamp, 555 U.S. at 344, 129 S.Ct. 855 (holding that “determining what information should be includ ed in the training or the supervision or the information-system management” regarding prosecutors’ duties to defendants was an administrative function to which absolute immunity attaches). Functions for which absolute prosecutorial immunity have been granted include the lawyerly functions of organizing and analyzing evidence and law, and then presenting evidence and analysis to the courts and grand juries on behalf of the government; they also include internal decisions and processes that determine how those functions will be carried out. See Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Prosecutors are absolutely immune from liability for the consequences of their advocacy, however inept or malicious, because it is filtered through a neutral and detached judicial body; they are not necessarily immune for actions taken outside this process, including actions logically — though not necessarily temporally — prior to advocacy, such as those “normally performed by a detective or police officer,” like gathering evidence, id., and those separate from the process, like providing legal advice to the police, see Burns, 500 U.S. at 495-96, 111 S.Ct. 1934. Wilenchik argues that he is entitled to absolute immunity for claims arising out of the issuance of the purported grand jury" }, { "docid": "10137694", "title": "", "text": "That meant that some, if not all, of the Prosecutors’ actions were conducted under the direct supervision and approval of a judge. As for the execution of the warrant, the district court found dispositive the fact that Archer had not alleged the necessary personal involvement. The former issue is the critical one: whether the Prosecutors are entitled to absolute immunity for their investigation of Archer because it was done pursuant to the John Doe process. Prosecutors are absolutely immune for actions they undertake in their capacities as prosecutors, even including malicious prosecution unsupported by probable cause. Imbler v. Pachtman, 424 U.S. 409, 427, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). But absolute immunity does not shield them from liability for actions that are not “intimately associated with the judicial phase of the criminal process,” nor does it apply when they are performing non-prosecutorial actions, such as administrative and investigatory activities. Imbler, 424 U.S. at 430, 96 S.Ct. 984; see Buckley v. Fitzsimmons, 509 U.S. 259, 274-76, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993); Burns v. Reed, 500 U.S. 478, 492-95, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). Protection hinges not on the defendant’s job title, but on the nature of the function he performed. Buckley, 509 U.S. at 268-69, 113 S.Ct. 2606. The Prosecutors argue that all the actions Archer has identified were prosecuto-rial in nature because they were conducted under the supervision of a judge who, under Wisconsin law, “is to act as a neutral magistrate.” In re Doe Petition, 310 Wis.2d 342, 750 N.W.2d 873, 884 (2008). We have likened John Doe proceedings to grand jury investigations, see O’Keefe v. Chisholm, 769 F.3d 936, 943 (7th Cir. 2014); they also proceed under the general supervision' of a judge, and prosecutors receive absolute immunity in those proceedings. Id. at 273, 113 S.Ct. 2606. That said, the ultimate test remains a functional one; the involvement of a judge is not dispositive. See Buckley, 509 U.S. at 272-73, 113 S.Ct. 2606 (absolute immunity protects “an out-of-court ‘effort to control the presentation of a witness’s testimony’”) (quoting Imbler, 424 U.S. at 430" }, { "docid": "19108172", "title": "", "text": "Fletcher, 522 U.S. 118, 118 S.Ct. 502, 508, 139 L.Ed.2d 471 (1997) (explaining “that the absolute immunity that protects the prosecutor’s role as an advocate is not grounded in any special esteem for those who perform these functions, and certainly not from a desire to shield abuses of office, but because any lesser degree of immunity could impair the judicial process itself,” and thus, in determining immunity, a court must “examine the nature of the function performed, not the identity of the actor who performed it” (internal quotation marks omitted)). A prosecutor performing the duties of initiating a prosecution or presenting a case is entitled to absolute immunity in an action for damages claiming that the prosecutor violated the plaintiffs constitutional rights. See Imbler, 424 U.S. at 431, 96 S.Ct. 984. However, this absolute immunity does not encompass all of a prosecutor’s official activities. See Burns v. Reed, 500 U.S. 478, 492-96, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). Thus, although absolute immunity applies to activities “intimately associated with the judicial phase of the criminal process” because the reasons underlying the grant of the immunity apply to those activities by a prosecutor, absolute immunity is not required for “those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate.” Imbler, 424 U.S. at 430-31, 96 S.Ct. 984. Accordingly, a prosecutor’s appearance in court in support of an application for a search warrant and the presentation of evidence at that hearing are protected by absolute immunity. See Burns, 500 U.S; at 491-92, 111 S.Ct. 1934. Likewise, “acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity.” Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). But, a prosecutor is not entitled to absolute immunity for giving legal advice to law enforcement officers because the risk of vexatious lawsuits as a result of this activity is" }, { "docid": "22590922", "title": "", "text": "meant to incorporate the common law immunities then available, or would have explicitly provided otherwise. Imbler v. Pachtman, 424 U.S. 409, 417-18, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Malley v. Briggs, 475 U.S. 335, 339-40, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); Buckley v. Fitzsimmons, 509 U.S. 259, 268, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Thus, determination of absolute immunity under § 1983 is not a policy determination, but involves a historical exercise. Malley, 475 U.S. at 339-40, 106 S.Ct. 1092; Imbler, 424 U.S. at 418, 421, 96 S.Ct. 984; Buckley, 509 U.S. at 268, 113 S.Ct. 2606. The Supreme Court has interpreted § 1983 to give absolute immunity to functions “intimately associated with the judicial phase of the criminal process.” Malley, 475 U.S. at 342, 106 S.Ct. 1092 (quoting Imbler, 424 U.S. at 430, 96 S.Ct. 984). Witnesses are granted absolute immunity for their testimony during trials, Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), and during grand jury proceedings. Strength v. Hubert, 854 F.2d 421 (11th Cir.1988). Judicial and quasi-judicial officers also enjoy absolute immunity. Imbler, 424 U.S. at 420-21, 96 S.Ct. 984. Likewise, prosecutors enjoy absolute immunity for the initiation and pursuit of criminal prosecution. Id. at 431, 96 S.Ct. 984. A prosecutor is absolutely immune from suit for malicious prosecution. Malley, 475 U.S. at 342-43, 106 S.Ct. 1092. Prosecutors also enjoy absolute immunity for appearances before the court, such as examining a witness and presenting evidence in support of a search warrant during a probable cause hearing. Burns v. Reed, 500 U.S. 478, 490-92, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). A prosecutor enjoys absolute immunity from allegations stemming from the prosecutor’s function as advocate. Buckley, 509 U.S. at 273, 113 S.Ct. 2606. Such absolute immunity extends to a prosecutor’s “acts undertaken ... in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State.” Buckley, 509 U.S. at 273, 113 S.Ct. 2606; Mastroianni v. Bowers, 173 F.3d 1363 (11th Cir.1999). Police officers enjoy the" }, { "docid": "9438727", "title": "", "text": "of initiating and presenting the state’s case includes appearances before a judge to establish probable cause for a search warrant. See Burns, 500 U.S. at 496, 111 S.Ct. 1934. It would seem anomalous, therefore, to say that they were not acting as advocates during the preparation of the affidavit and search warrant for presentation in court, particularly where, as here, the undisputed facts demonstrate that when the defendants prepared the affidavit and the warrant, the undercover foray into Lomaz’s facility had already revealed the presence of the evidence listed in the warrant, and the marshals had already determined that this evidence, among other things, provided probable cause for prosecuting Lomaz. The purpose for which they sought the warrant, therefore, was not primarily investigative, but was to obtain and preserve the evidence. We think that under these circumstances, the prosecutors were clearly “preparing for the initiation of judicial proceedings.” Buckley, 509 U.S. at 273, 113 S.Ct. 2606. Turning to Defendant Plough’s role in executing the warrant, we conclude that his action is entitled to absolute immunity as well. The Supreme Court held in Bums that “advising the police in the investigative stage of a criminal case is [not] so intimately associated with the judicial phase of the criminal process that it qualifies for absolute immunity,” Bums, 500 U.S. at 493, 111 S.Ct. 1934. Plough, however, was not advising the marshals in the investigative stage of this case. Rather, he directed Director of the Department of Commerce to continue the seizure, first, because all of the items listed in the warrant were necessary to the judicial proceedings, and second, because the execution of the warrant could not be begun again if it were discontinued. We conclude that, like the preparation of the affidavit and the warrant, this action was part of the prosecutors’ “preparing for the initiation of judicial proceedings.” Buckley, 509 U.S. at 273, 113 S.Ct. 2606. The district court did not err in concluding that these actions were protected by absolute immunity. The district court held that the undisputed facts demonstrated that the “unlawfully seized” evidence that Lomaz claims was" }, { "docid": "10137693", "title": "", "text": "complaint in the light most favorable to Archer, the non-movant, accepting all of her well-pleaded facts as true and drawing all reasonable inferences in her favor. Burke v. 401 N. Wabash Venture, LLC, 714 F.3d 501, 504 (7th Cir. 2013). To pass muster, Archer’s complaint must “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 the requisite plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A Archer asks us to hold that absolute immunity does not protect the Prosecutors in this case because they were acting as investigators—not prosecutors—at all times relevant to her claims. The district court was not persuaded by this argument; it placed great weight on the fact that their actions were taken as part of the John Doe proceeding. That meant that some, if not all, of the Prosecutors’ actions were conducted under the direct supervision and approval of a judge. As for the execution of the warrant, the district court found dispositive the fact that Archer had not alleged the necessary personal involvement. The former issue is the critical one: whether the Prosecutors are entitled to absolute immunity for their investigation of Archer because it was done pursuant to the John Doe process. Prosecutors are absolutely immune for actions they undertake in their capacities as prosecutors, even including malicious prosecution unsupported by probable cause. Imbler v. Pachtman, 424 U.S. 409, 427, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). But absolute immunity does not shield them from liability for actions that are not “intimately associated with the judicial phase of the criminal process,” nor does it apply when they are performing non-prosecutorial actions, such as administrative and investigatory activities. Imbler, 424 U.S. at 430, 96 S.Ct. 984; see Buckley v. Fitzsimmons, 509 U.S. 259, 274-76, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993); Burns v." }, { "docid": "23132264", "title": "", "text": "89 L.Ed.2d 271 (1986) (quoting Imbler, 424 U.S. at 437, 96 S.Ct. at 998). In § 1983 actions, prosecutors have absolute immunity for all activities that are “ ‘intimately associated with the judicial phase of the criminal process.’” Van de Kamp v. Goldstein, — U.S. -, 129 S.Ct. 855, 860, 172 L.Ed.2d 706 (2009) (quoting Imbler, 424 U.S. at 430, 96 S.Ct. at 995); accord Jones v. Cannon, 174 F.3d 1271, 1281 (11th Cir.1999). Absolute immunity does not depend entirely on a defendant’s job title, but involves a functional approach granting immunity based on conduct. Jones, 174 F.3d at 1282. This functional approach looks to “the nature of the function performed, not the identity of the actor who performed it.” Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S.Ct. 2606, 2613, 125 L.Ed.2d 209 (1993); accord Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. at 995 n. 33. Absolute immunity accordingly applies to the prosecutor’s actions “in initiating a prosecution and in presenting the State’s case.” Imbler, 424 U.S. at 431, 96 S.Ct. at 995. Prosecutors are immune for appearances in judicial proceedings, including prosecutorial conduct before grand juries, statements made during trial, examination of witnesses, and presentation of evidence in support of a search warrant during a probable cause hearing. Burns v. Reed, 500 U.S. 478, 490-92, 111 S.Ct. 1934, 1942, 114 L.Ed.2d 547 (1991); Kalina v. Fletcher, 522 U.S. 118, 126, 118 S.Ct. 502, 507-08, 139 L.Ed.2d 471 (1997); see also Van de Kamp, 129 S.Ct. at 861. “A prosecutor enjoys absolute immunity from allegations stemming from the prosecutor’s function as advocate.” Jones, 174 F.3d at 1281. Such absolute immunity also “extends to a prosecutor’s acts undertaken ... in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State.” Id. (quotation marks omitted); accord Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1279-80 (11th Cir.2002) (holding prosecutor who proffered perjured testimony and fabricated exhibits at trial is entitled to absolute immunity, but a prosecutor who participated in the search of a" }, { "docid": "22590923", "title": "", "text": "Cir.1988). Judicial and quasi-judicial officers also enjoy absolute immunity. Imbler, 424 U.S. at 420-21, 96 S.Ct. 984. Likewise, prosecutors enjoy absolute immunity for the initiation and pursuit of criminal prosecution. Id. at 431, 96 S.Ct. 984. A prosecutor is absolutely immune from suit for malicious prosecution. Malley, 475 U.S. at 342-43, 106 S.Ct. 1092. Prosecutors also enjoy absolute immunity for appearances before the court, such as examining a witness and presenting evidence in support of a search warrant during a probable cause hearing. Burns v. Reed, 500 U.S. 478, 490-92, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). A prosecutor enjoys absolute immunity from allegations stemming from the prosecutor’s function as advocate. Buckley, 509 U.S. at 273, 113 S.Ct. 2606. Such absolute immunity extends to a prosecutor’s “acts undertaken ... in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State.” Buckley, 509 U.S. at 273, 113 S.Ct. 2606; Mastroianni v. Bowers, 173 F.3d 1363 (11th Cir.1999). Police officers enjoy the same absolute immunity as lay witnesses for their testimony at trial, Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), or in front of the grand jury. Kelly v. Curtis, 21 F.3d 1544, 1553 (11th Cir.1994); Strength v. Hubert, 854 F.2d 421 (11th Cir.1988). The penalty for false testimony under such circumstances is the same for any witness, that is, a potential prosecution for perjury. Briscoe, 460 U.S. at 342, 103 S.Ct. 1108. Although absolutely immune for actions taken as an advocate, the prosecutor has only qualified immunity when performing a function that is not associated with his role as an advocate for the state. Buckley, 509 U.S. at 269-70, 113 S.Ct. 2606; Mastroianni, 173 F.3d at 1363. Additionally, prosecutors have not enjoyed absolute immunity for giving certain legal advice to police during an investigation. Burns, 500 U.S. at 496, 111 S.Ct. 1934. Prosecutors also have not been given absolute immunity for pre-indictment endeavors seeking to determine whether a boot print at the scene of a crime was made by a" }, { "docid": "23218790", "title": "", "text": "of fact are not denied relevant (although sometimes conflicting) evidence because of prosecutors’ fear of suit, Imbler, 424 U.S. at 426, 96 S.Ct. 984; and (4) to ensure fairness to defendants by enabling judges to make rulings in their favor without the subconscious knowledge that such rulings could subject the prosecutor to liability, id. at 427, 96 S.Ct. 984. “To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor’s immunity would disserve the broader public interest.” Id. Furthermore, prose-cutorial misconduct is deterred, apart from private civil actions, by the threat of criminal prosecution and professional discipline, Burns, 500 U.S. at 486, 111 S.Ct. 1934; Imbler, 424 U.S. at 429, 96 S.Ct. 984, and by prosecutors’ accountability to either superiors or the electorate. The Supreme Court has established several principles for analyzing a prosecutor’s claim of absolute immunity. First, immunity decisions are based on “the nature of the function performed, not the identity of the actor who performed it.” Kalina v. Fletcher, 522 U.S. 118, 127, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997) (quoting Forrester v. White, 484 U.S. 219, 229, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)); Buckley, 509 U.S. at 269, 113 S.Ct. 2606 (same); Burns, 500 U.S. at 486, 111 S.Ct. 1934. “[T]he actions of a prosecutor are not absolutely immune merely because they are performed by a prosecutor.” Buckley, 509 U.S. at 273, 113 S.Ct. 2606. Second, the official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question. Id. at 269, 113 S.Ct. 2606; Burns, 500 U.S. at 486, 111 S.Ct. 1934. “The presumption is that qualified rather than absolute immunity is sufficient to protect government officials in the exercise of their duties.” Burns, 500 U.S. at 486-87, 111 S.Ct. 1934; see also Buckley, 509 U.S. at 273, 113 S.Ct. 2606. Finally, acts undertaken by a prosecutor “in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of" }, { "docid": "13773034", "title": "", "text": "in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom,” Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. 984, absolute prosecutorial immunity will be given “only for actions that are connected with the prosecutor’s role in judicial proceedings, not for every litigation-inducing conduct,” Burns, 500 U.S. at 494, 111 S.Ct. 1934. As the Supreme Court has acknowledged, the distinction between the roles of “prosecutor” and “investigator” is not always clear. See Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. 984 (“Drawing a proper line between these functions may present difficult questions.... ”). The Supreme Court has given us few bright lines, and its cases on prosecutorial immunity have proceeded on a function-by-fnnction basis. Thus, the Court has held that prosecutors receive absolute immunity for initiating a prosecution, id, for presenting false or perjured testimony, id, for appearing in court to apply for a search warrant, Burns, 500 U.S. at 492, 111 S.Ct. 1934, and for preparing and filing an information and a motion for an arrest warrant, Kalina v. Fletcher, 522 U.S. 118, 129, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). By contrast, prosecutors receive only qualified immunity for giving legal advice to the police, Burns, 500 U.S. at 496, 111 S.Ct. 1934, for investigating and fabricating physical evidence at a crime scene, Buckley, 509 U.S. at 274-75, 113 S.Ct. 2606 (involving a bootprint left at the scene of a crime), for holding a press conference, id. at 276-78, 113 S.Ct. 2606, and for acting as a complaining witness in support of a warrant application, Kalina, 522 U.S. at 130-31, 118 S.Ct. 502. See also Van de Kamp, 129 S.Ct. at 861. In determining the scope of the functions to which absolute immunity extends, the Supreme Court has “generally looked for a historical or common-law basis for the immunity in question.” Mitchell, 472 U.S. at 521, 105 S.Ct. 2806. The existence of a common-law immunity, however, is a necessary, but not sufficient, condition for the recognition of absolute immunity: “Even when we can identify a" }, { "docid": "9438724", "title": "", "text": "to the police about an unarrested suspect, but then to endow them with absolute immunity when conducting investigative work themselves in order to decide whether a suspect may be arrested.” Id. at 275, 113 S.Ct. 2606. Where the prosecutor acts more as an administrator or investigator (i.e., like a police officer), he may claim only qualified immunity: “[wjhere the functions of prosecutors and detectives are the same ... the immunity that protects them is also the same.” Buckley, 509 U.S. at 276, 113 S.Ct. 2606. At issue in the appeal before us today is whether the district court erred in concluding that no genuine issue of material fact remained for trial, and that, except for the incorporation of the business under the same name formerly used by Lomaz, the defendants were entitled to absolute immunity for the actions of which Lomaz complains. To resolve this issue, we must determine whether the challenged actions were “intimately associated with the judicial phase of the criminal process,” Burns, 500 U.S. at 493, 111 S.Ct. 1934 (quoting Imbler, 424 U.S. at 430, 96 S.Ct. 984) or “acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State.” Buckley, 509 U.S. at 273, 113 S.Ct. 2606. First, however, we must sort out exactly what the challenged actions of the defendants were. Lomaz would have this court apply this functional analysis to a number of discrete actions taken by Plough and Myers, including: (1) Myers’ call to Phillips initiating the investigation; (2) the prosecutors’ decision to send an undercover employee of the prosecutor’s office to make purchases at Midwest Fireworks; (3) the prosecutors’ actions in sending the June 1986 order to the state fire marshal to convince him not to issue a variance to Midwest Fireworks; (4) the preparation of the affidavit and search warrant; (5) the advice given to the fire marshals that they should continue the raid; (6) the retention of possession of plaintiffs’ property that was seized by the fire marshals; and (7)" }, { "docid": "13773033", "title": "", "text": "98 L.Ed.2d 555 (1988); Harlow v. Fitzgerald, 457 U.S. 800, 811, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). “[I]f application of the principle is unclear, the defendant simply loses,” and receives only the default of qualified immunity. Buckley, 509 U.S. at 281, 113 S.Ct. 2606 (Scalia, J., concurring). To determine whether an action is “prosecutorial,” and so entitled to absolute immunity, the Supreme Court has adopted a “ ‘functional approach,’ which looks to ‘the nature of the function performed, not the identity of the actor who performed it.’ ” Id. at 269, 113 S.Ct. 2606 (quoting Burns, 500 U.S. at 486, 111 S.Ct. 1934; Forrester, 484 U.S. at 229, 108 S.Ct. 538). “In Imbler, the Court concluded that the ‘reasons for absolute immunity applied] with full force’ to the conduct at issue because it was ‘intimately associated with the judicial phase of the criminal process.’ ” Van de Kamp v. Goldstein, —U.S.-, 129 S.Ct. 855, 861, 172 L.Ed.2d 706 (2009) (citing Imbler, 424 U.S. at 430, 96 S.Ct. 984). While the “duties of the prosecutor in his role as advocate for the State involve actions preliminary to the initiation of a prosecution and actions apart from the courtroom,” Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. 984, absolute prosecutorial immunity will be given “only for actions that are connected with the prosecutor’s role in judicial proceedings, not for every litigation-inducing conduct,” Burns, 500 U.S. at 494, 111 S.Ct. 1934. As the Supreme Court has acknowledged, the distinction between the roles of “prosecutor” and “investigator” is not always clear. See Imbler, 424 U.S. at 431 n. 33, 96 S.Ct. 984 (“Drawing a proper line between these functions may present difficult questions.... ”). The Supreme Court has given us few bright lines, and its cases on prosecutorial immunity have proceeded on a function-by-fnnction basis. Thus, the Court has held that prosecutors receive absolute immunity for initiating a prosecution, id, for presenting false or perjured testimony, id, for appearing in court to apply for a search warrant, Burns, 500 U.S. at 492, 111 S.Ct. 1934, and for preparing and filing an information" }, { "docid": "9438723", "title": "", "text": "the initiation of a prosecution or for judicial proceedings are not protected by absolute immunity, “acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity.” Buckley, 509 U.S at 273, 113 S.Ct. 2606. The Court in that case found a prosecutor entitled to only qualified immunity for conducting investigative work in order to decide whether to arrest a suspect. Buckley, 509 U.S. at 275, 113 S.Ct. 2606. The Buckley Court noted that “[a] prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.” Id. at 274, 113 S.Ct. 2606. The challenged conduct of the prosecutors in that case was directed wholly toward finding evidence that would support the arrest of a suspect. “After Bums, it would be anomalous, to say the least,” the Court said, “ to grant prosecutors only qualified immunity when offering legal advice to the police about an unarrested suspect, but then to endow them with absolute immunity when conducting investigative work themselves in order to decide whether a suspect may be arrested.” Id. at 275, 113 S.Ct. 2606. Where the prosecutor acts more as an administrator or investigator (i.e., like a police officer), he may claim only qualified immunity: “[wjhere the functions of prosecutors and detectives are the same ... the immunity that protects them is also the same.” Buckley, 509 U.S. at 276, 113 S.Ct. 2606. At issue in the appeal before us today is whether the district court erred in concluding that no genuine issue of material fact remained for trial, and that, except for the incorporation of the business under the same name formerly used by Lomaz, the defendants were entitled to absolute immunity for the actions of which Lomaz complains. To resolve this issue, we must determine whether the challenged actions were “intimately associated with the judicial phase of the criminal process,” Burns, 500 U.S. at 493, 111 S.Ct. 1934 (quoting Imbler, 424" }, { "docid": "4871811", "title": "", "text": "Burns v. Reed, 500 U.S. 478, 492-96, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991); and a judge engaged in the selection of jurors, Ex Parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1879). As this court noted in Wagshal, “[w]e have distilled the Supreme Court’s [functional] approach to quasi-judicial immunity into a consideration of three main factors.” Wagshal, 28 F.3d at 1252. These factors include: (1) whether the functions of the official in question are comparable to those of a judge; (2) whether the nature of the controversy is intense enough that future harassment or intimidation by litigants is a realistic prospect; and (3) whether the system contains safeguards which are adequate to justify dispensing with private damage suits to control unconstitutional conduct. Id. (citing Butz, 438 U.S. at 512, 98 S.Ct. 2894) (other citation omitted). “The common-law immunity of a prosecutor is based upon the same considerations that underlie the common-law immunities of judges and grand jurors acting within the scope of their duties.” Imbler, 424 U.S. at 422-23, 96 S.Ct. 984 (footnote omitted). Like judicial immunity, absolute prosecutorial immunity turns on the function performed by the prosecutor. Absolute immunity is granted only for conduct “intimately associated with the judicial phase of the criminal process.” Id. at 430, 96 S.Ct. 984. Thus, courts look to whether the particular activity in dispute was performed by a prosecutor in his or her official capacity as an advocate for the state in the course of judicial proceedings. See Kalina v. Fletcher, 522 U.S. 118, 125, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997). A prosecutor is not entitled to absolute immunity when performing “administrative duties and those investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings.” Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). “[T]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question.” Burns, 500 U.S. at 486, 111 S.Ct. 1934. “The presumption is that qualified rather than absolute immunity is sufficient to protect government" }, { "docid": "23631266", "title": "", "text": "prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system.” ... [Tjhere are other checks on prosecutorial misconduct, including the criminal law and professional discipline. Burns, 500 U.S. at 485-86, 111 S.Ct. 1934 (citing Imbler, 424 U.S. at 425, 427-28, 429, 96 S.Ct. 984). Since extending absolute immunity to state prosecutors in Imbler, the Supreme Court has clarified that absolute immunity does not extend to “[a] prosecutor’s administrative duties and those investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings.” Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993); see also Burns, 500 U.S. at 494-96, 111 S.Ct. 1934. At the same time, the Court has reaffirmed that “acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity.” Buckley, 509 U.S. at 273, 113 S.Ct. 2606. Ultimately, whether a prosecutor is entitled to absolute immunity depends on whether she establishes that she was functioning as the state’s “advocate” while engaging in the alleged conduct that gives rise to the constitutional violation. See id. at 274, 113 S.Ct. 2606. As the Supreme Court explained in Kalina v. Fletcher, “in determining immunity, we examine the nature of the function performed, not the identity of the actor who performed it.” 522 U.S. 118, 127, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997) (internal quotation marks, citation, and footnote omitted). Turning to the instant case, Yarris’s Amended Complaint alleges that the ADAs engaged in conduct that violated Yarris’s rights under the Fourth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. In support of these claims, the Amended Complaint alleges that the ADAs deliberately destroyed' exculpatory evidence, withheld exculpatory evidence, fabricated a false confession, and obtained a false statement from a jailhouse informant. We analyze whether the ADAs are entitled to absolute immunity from claims based on" }, { "docid": "10137695", "title": "", "text": "Reed, 500 U.S. 478, 492-95, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991). Protection hinges not on the defendant’s job title, but on the nature of the function he performed. Buckley, 509 U.S. at 268-69, 113 S.Ct. 2606. The Prosecutors argue that all the actions Archer has identified were prosecuto-rial in nature because they were conducted under the supervision of a judge who, under Wisconsin law, “is to act as a neutral magistrate.” In re Doe Petition, 310 Wis.2d 342, 750 N.W.2d 873, 884 (2008). We have likened John Doe proceedings to grand jury investigations, see O’Keefe v. Chisholm, 769 F.3d 936, 943 (7th Cir. 2014); they also proceed under the general supervision' of a judge, and prosecutors receive absolute immunity in those proceedings. Id. at 273, 113 S.Ct. 2606. That said, the ultimate test remains a functional one; the involvement of a judge is not dispositive. See Buckley, 509 U.S. at 272-73, 113 S.Ct. 2606 (absolute immunity protects “an out-of-court ‘effort to control the presentation of a witness’s testimony’”) (quoting Imbler, 424 U.S. at 430 n.32, 96 S.Ct. 984). John Doe proceedings are intended as “investigatory tool[s]” for determining whether a crime was committed and by whom, State ex rel. Reimann v. Cir. Ct. for Dane Cnty., 214 Wis.2d 605, 571 N.W.2d 385, 390 (1997), and prosecuto-rial work historically did not include investigations, see Buckley, 509 U.S. at 275-76, 113 S.Ct. 2606. Because they are so unusual, John Doe proceedings do not fit neatly into the categories used in earlier cases. We find it a bit artificial to squash them into either the absolute immunity box- or the qualified immunity box, but fortunately, that is not necessary. If qualified immunity is available, it is enough to dispose of the present case. We therefore turn directly to that analysis. See Sonnleitner v. York, 304 F.3d 704, 717 n.8 (7th Cir. 2002) (court may affirm on the basis -of any ground fairly presented in the record). B All of the defendants have invoked qualified immunity as an affirmative defense to Archer’s claims. “Qualified immunity shields government officials from civil damages liability, unless" }, { "docid": "9438722", "title": "", "text": "in Bums that a prosecutor could receive only qualified immunity for his activities that are administrative or investigative in nature. Bums held that the prosecutor was entitled to absolute immunity for his participation in a probable cause hearing, because “appearing before a judge and presenting evidence in support of a motion for a search warrant clearly involve the prosecutor’s role as advocate of the State, rather than his role as administrator or investigative officer.” Id. at 491, 111 S.Ct. 1934 (internal quotations omitted). The prosecutor was entitled to only qualified immunity, however, for the act of giving legal advice to the police. Burns, 500 U.S. at 496, 111 S.Ct. 1934. The vital difference between activities protected by absolute immunity and those protected by qualified immunity is that the former must be “closely associated with the judicial process.” Id. at 495, 111 S.Ct. 1934. In Buckley, the Court reviewed its holdings in Imbler and Bums, and emphasized that, although Bums had made it explicit that administrative and investigative functions not related to the prosecutor’s preparation for the initiation of a prosecution or for judicial proceedings are not protected by absolute immunity, “acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State, are entitled to the protections of absolute immunity.” Buckley, 509 U.S at 273, 113 S.Ct. 2606. The Court in that case found a prosecutor entitled to only qualified immunity for conducting investigative work in order to decide whether to arrest a suspect. Buckley, 509 U.S. at 275, 113 S.Ct. 2606. The Buckley Court noted that “[a] prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested.” Id. at 274, 113 S.Ct. 2606. The challenged conduct of the prosecutors in that case was directed wholly toward finding evidence that would support the arrest of a suspect. “After Bums, it would be anomalous, to say the least,” the Court said, “ to grant prosecutors only qualified immunity when offering legal advice" } ]

[ { "docid": "22229236", "title": "", "text": "cannot be held hable for damages under Title VII and ADEA); Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir.1993) (holding that under Title VII, suits must proceed against individuals in their official capacities only; individual capacity suits are inappropriate). But see Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir.1989) (finding that a supervisory employee was an “employer” individually hable under Title VII), vacated in part on other grounds, 900 F.2d 27 (4th Cir.1990). Similarly, the majority of the district courts within the Sixth Circuit that have addressed the issue have also rejected the concept of individual liability under Title VII. We have not squarely addressed this issue before. We now hold that an individual employee/supervisor, who does not otherwise qualify as an “employer,” may not be held personally liable under Title VII. Because KRS Chapter 344 mirrors Title VII, we find our holding equally applicable to KRS Chapter 344. 1. The Language of Title VII Title VII provides that “it shall be an unlawful employment practice for an employer” to discriminate on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). A person aggrieved by such discrimination may bring a civil action against the “employer.” 42 U.S.C. § 2000e-5(b). “Employer” is defined to mean “a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such person.” 42 U.S.C. § 2000e(b) (emphasis added). “Agent” is not defined by Title VII but has been interpreted as “an individual who ‘serves in a supervisory position and exercises significant control over the plaintiffs hiring, firing or conditions of employment.’” Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796, 803 (6th Cir.1994) (quoting Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir.1993)). Wathen argues that the use of the term “agent” in the statute allows her to sue defendants Murphy, Nyzio and Kerian in their individual capacities as agents of GE. She contends that by its plain terms, the language of the statute imposes liability on individuals for their violations of Title VII. We" } ]

[ { "docid": "22935115", "title": "", "text": "applicable to the structure and logic of the ADA. While the ADA’s remedial purposes are broad and far-reaching, the statute imposes liability only on a specifically defined class of persons. Limiting liability to employers with fifteen or more employees strikes “a balance between the goal of stamping out all discrimination and the goal of protecting small entities from the hardship of litigating discrimination claims.” Id. at 1281; see also Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir.) (“The purpose of this provision [limiting liability to employers with at least fifteen employees] can only be to reduce the burden of the ADEA on small businesses.”), cert. denied, 513 U.S. 1058, 115 S.Ct. 666, 130 L.Ed.2d 600 (1994). The ADA, Title VII, and the ADEA all prohibit discrimination by employers on a variety of grounds. See 42 U.S.C. §§ 12111(2) & 12112(ADA); id. § 2000e-2(a) (Title VII); 29 U.S.C. § 623(a) (ADEA). Similarly to Title VII and the ADEA, the ADA defines “employer” as “a person engaged in an industry affecting commerce who has 15 or more employees ..., and any agent of such person.” 42 U.S.C. § 12111(5)(A); cf. id. § 2000e(b); 29 U.S.C. § 630(b). Because we can discern no meaningful distinction between the definitions of “employer” in Title VII and the ADA, our reasoning in Haynes dictates the outcome of this case. Cf. Finley v. United States, 82 F.3d 966, 974 (10th Cir.1996); United States v. Spedalieri, 910 F.2d 707, 709 n. 2 (10th Cir.1990). Accordingly, we now hold that the ADA precludes personal capacity suits against individuals who do not- otherwise qualify as employers under the statutory definition. Not only is our position consistent with the majority of federal circuit and district courts that have considered the issue of individual supervisor liability under Title VII and the ADEA, see, e.g., Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th Cir.1997) (Title VII); Williams v. Banning, 72 F.3d 552, 555 (7th Cir.1995) (Title VII); Tomka v. Seiler Corp., 66 F.3d 1295, 1314 (2d Cir.1995) (Title VII); Smith v. Lomax, 45 F.3d 402, 403 n. 4" }, { "docid": "10050319", "title": "", "text": "991 F.2d at 587. See also Johnson v. Northern Ind. Pub. Serv. Co., 844 F.Supp. 466, 469 (N.D.Ind.1994) (indicating that the more reasoned reading of the statute is that the “and any agent of such person” language was meant to incorporate re-spondeat superior into the statute). At least two circuits have held that supervisors may be liable in their individual capacity under Title VII. See Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir.1989), vacated in part on reh’g, 900 F.2d 27 (1990); Jones v. Continental Corp., 789 F.2d 1225, 1231 (6th Cir.1986). District courts are divided on this question as well. What seems clear is that the term “employer” is defined to include any agent of the employer. 42 U.S.C. § 2000e(b). In determining whether Congress intended to confer personal liability on those agents, this court is persuaded that it did not. Adopting the words of the court in Vodde v. Indiana Mich. Power Co., “[i]n answer to that question, Miller basically got it right.” 852 F.Supp. 676, 679 (N.D.Ind.1994) (citing Miller, 991 F.2d at 587). The Ninth Circuit in Miller determined that supervisors could not be held individually liable under Title VII. They reasoned that the statutory scheme itself indicated that Congress did not intend to impose individual liability. The statutory scheme itself indicates that Congress did not intend to impose individual liability on employees. Title VII limits liability to employers with fifteen or more employees, 42 U.S.C. § 2000e(b), ... in part because Congress did not want to burden small entities with the costs associated with litigating discrimination claims. If Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees. Miller, 991 F.2d at 587. Prior to passage of the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (codified in pertinent part at 42 U.S.C. 1981a), some courts that reached the same conclusion as Miller “strengthened” their arguments by noting that Title VII contained remedies that an employer, as opposed to an individual, could generally provide. The" }, { "docid": "8146936", "title": "", "text": "at *2 (2d Cir. Oct. 7, 1999) (unpublished); Butler v. City of Prairie Vill., 172 F.3d 736, 744 (10th Cir. 1999); EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1282 (7th Cir.1995). In addition, Vélez and Renta assert that such a conclusion is the logical extension of our holding that Title VII, an analogous statute, does not support personal capacity claims. See Fantini v. Salem State Coll., 557 F.3d 22, 31 (1st Cir.2009). We agree that the logic of Fantini is compelling here. As other courts have observed, “[t]he statutory scheme and language of [Title I of] the ADA and Title VII are identical in many respects.” Walsh, 471 F.3d at 1038; see also, e.g., AIC, 55 F.3d at 1279-80. Both statutes direct their prohibitions to “employer[s],” and the ADA’s definition of employer mirrors Title VTI’s. Under both, an employer is “a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such ... person.” 42 U.S.C. § 12111(5)(A) (ADA); see also id. at § 2000e(b) (Title VII). In Fantini, we recognized that Title VU’s exemption for small employers signified an intention not “ ‘to burden small entities with the costs associated with litigating discrimination claims.’ ” 557 F.3d at 29 (quoting Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir.1993)). We quoted the Ninth Circuit’s observation that “ ‘[i]f Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees.’” Id. (quoting Miller, 991 F.2d at 587). Hence, we accepted that the statutory reference to “any agent” in the definition of “employer” does not connote individual liability, but “ ‘simply ... establishes] a limit on an employer’s liability for its employees’ actions.’ ” Fantini, 557 F.3d at 30 (quoting Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180 (4th Cir.1998)); see also Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir.1996) (noting that “the ‘agent’ language was included to ensure respondeat superior liability of the employer for the acts of its agents”)." }, { "docid": "22871097", "title": "", "text": "paid by the employer. Id. at 968. In Miller v. Maxwell’s Int’l Inc., 991 F.2d 583, 584 (9th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994), the court extended this rule to private employers. Defendants were employees of a restaurant and its corporate owner. The plaintiff alleged that she was discriminated against because of her sex and age and sought to hold the defendants personally liable for their actions. The court rejected her claim, noting, “Because Congress assessed civil liability only against an employer under Title VII, ... ‘individual defendants cannot be held liable for back pay.’” Id. at 587 (quoting Padway, 665 F.2d at 968). The court also rejected the notion that “supervisory personnel and other agents of the employer are themselves employers for purposes of liability.” Id. The definition of the term “employer” in § 2000e(b) does not include individuals who do not otherwise qualify as employers under the statute. In Miller, the court observed that the purpose of the “agent” provision in § 2000e(b) was to incorporate respondeat superior liability into title VII. The court found no reason to stretch the liability of individual employees beyond the respondeat superior principle intended by Congress. The court also noted that the statutory scheme of title VII indicated that Congress did not intend to impose individual liability on employees. Title VII limits liability to employers with fifteen or more employees, because Congress “did not want to burden small entities with the costs associated with litigating discrimination claims” and wanted “to protect small entities with limited resources from liability.” Id. Thus, the court found it “inconceivable that Congress intended to allow civil liability to run against individual employees,” the smallest of legal entities. Id. Finally, the Miller court suggested that had Congress envisioned liability for non-employer natural persons, it would have included it in its recent amendments to title VII under the Civil Rights Act of 1991. Id. at 587 n. 2. We find no reason to limit the rationale of Clanton and Harvey v. Blake to the realm of public employee disputes. Thus, we conclude" }, { "docid": "22871098", "title": "", "text": "respondeat superior liability into title VII. The court found no reason to stretch the liability of individual employees beyond the respondeat superior principle intended by Congress. The court also noted that the statutory scheme of title VII indicated that Congress did not intend to impose individual liability on employees. Title VII limits liability to employers with fifteen or more employees, because Congress “did not want to burden small entities with the costs associated with litigating discrimination claims” and wanted “to protect small entities with limited resources from liability.” Id. Thus, the court found it “inconceivable that Congress intended to allow civil liability to run against individual employees,” the smallest of legal entities. Id. Finally, the Miller court suggested that had Congress envisioned liability for non-employer natural persons, it would have included it in its recent amendments to title VII under the Civil Rights Act of 1991. Id. at 587 n. 2. We find no reason to limit the rationale of Clanton and Harvey v. Blake to the realm of public employee disputes. Thus, we conclude that title VII does not permit the imposition of liability upon individuals unless they meet title VU’s definition of “employer.” B. The structure of title VII also indicates that Congress did not intend natural persons who are not employers to be held liable for backpay awards. Section 2000e-2 prohibits various types of discrimination by an “employer.” The statute defines an employer to include any agent of an employer. Id. at § 2000e(b). Damages available under title VII include reinstatement with or without backpay and are to be paid by the employer, employment agency, or labor organization responsible for the unlawful employment practice. 42 U.S.C. § 2000e-5(g)(l). Murray contends that the type of damages available under title VII indicates that individual employees who are not employers are not intended to be held responsible for back-pay damages. For instance, under title VII, equitable damages, including reinstatement and back pay, are recoverable. These types of damages can be obtained only from the employer. See Weiss, 772 F.Supp. at, 411. Grant contends that an agent with authority to hire," }, { "docid": "19696083", "title": "", "text": "and Baxter. The question to be addressed is whether, accepting the allegations in the Amended Complaint as true, “no relief could be granted under any set of facts that could be proved consistent with the allegations” contained in these counts. Associated General Contractors, 459 U.S. at 526, 103 S.Ct. at 902. B. Individual Liability under the ADEA and the ADA The Defendants argue Dejoy’s ADEA and ADA claims must be dismissed against Doyle and Baxter because “there is no individual liability under - the ADEA or the ADA.” Moving Brief at 7. DeJoy responds that supervisory employees, like Doyle and Baxter, may be held liable under these statutes. Opposition Brief at 6-7. The ADEA provides: It shall be an unlawful employment practice for an employer— (1) to fad or refuse to hire or to discharge any individual, or to 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 (emphasis added); see 42 U.S.C. § 2000e-2(a)(l). The ADA provides: No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). The ADA defines a “covered entity” as “an employer, employment agency, labor organization, or joint labor-management committee.” 42 U.S.C. 12111(2) (emphasis added). Whether Doyle and Baxter may properly be held individually liable under the ADEA or the ADA, therefore, hinges on whether they may be considered “employers” under those statutes. The term “employer” is defined as “a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year ... [or] any agent of such a person....” 29 U.S.C. § 680(b) (ADEA); see 42 U.S.C. § 12111(5)(A) (substantially similar definition under the ADA); see also 42 U.S.C. § 2000e(b) (substantially similar definition of employer under Title VII)." }, { "docid": "22426321", "title": "", "text": "the ADA. See 42 U.S.C.A. § 12117(a) (providing that “[t]he powers, remedies, and procedures set forth in section[ ] ... 2000e-5 ... of this title shall be the powers, remedies, and procedures this subchapter provides to ... any person alleging discrimination on the basis of disability”). The enforcement provision of Title VII permits' actions against an “employer, employment agency, labor organization, or joint labor-management committee.” 42 U.S.C.A. § 2000e-5(b). Title VII and the ADA define an “employer” in pertinent part as “a person engaged in an industry affecting commerce who has fifteen or more employees.” 42 U.S.C.A. § 2000e(b) (West 1994); see 42 U.S.C.A. § 12111(5)(A) (West 1995). We have expressly held that Title VII does not provide a remedy against individual defendants who do not qualify as “employers.” See Lissau v. Southern Food Serv., Inc., 159 F.3d 177, 180-81 (4th Cir.1998) (holding that supervisors cannot be held liable in their individual capacity under Title VII because they do not fit within the definition of an employer). Because Title VII does not authorize a remedy against individuals for violation of its provisions, and because Congress has made the remedies available in Title VII applicable to ADA actions, the ADA does not permit an action against individual defendants for retaliation for conduct protected by the ADA. See Stern v. California State Archives, 982 F.Supp. 690, 692-94 (E.D.Cal.1997) (holding that individuals who do not qualify as “employers” under Title VII cannot be held liable under the ADA); cf. Hiler v. Brown, 177 F.3d 542, 545-46 (6th Cir.1999) (explaining that because it incorporates the remedies available under Title VII, the Rehabilitation Act does not permit actions against persons in their individual capacities). Accordingly, we hold that the district court properly dismissed Baird’s action against Rose and Cohen in their individual capacities. III. Baird also asserts that the district court erred in dismissing her claim of intentional infliction of emotional distress. Under Virginia law, intentional infliction of emotional distress requires that (1) the wrongdoer’s conduct was intentional or reckless; (2) the conduct was outrageous and intolerable in that it offends generally accepted standards of" }, { "docid": "950581", "title": "", "text": "of the ADA, the Rehabilitation Act of 1973 and Title VII, and thus they are not subject to liability under these Acts. Similarly, Defendants assert that under Illinois law, a claim for retaliatory employment practices cannot be brought against a defendant who is not the plaintiffs employer. Defendant Robert Maeyama was, at the relevant time, the Chief of Police of the Village of Park Forest and Defendant John Lancaster was, at the relevant time, Captain of the Police Department of the Village of Park Forest. (Amended Complaint at ¶ 5.) Both individual Defendants served as Plaintiffs supervisor. Id. Americans With Disabilities Act, Title VII and the Rehabilitation Act of 1973 The issue which this Court confronts is whether supervisory employees are “employers,” and thus may be held individually liable for discrimination under the ADA, Title VII and the Rehabilitation Act. The ADA defines “employer” as a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person. 42 U.S.C. § 12111(5)(A). The ADA’s definition of employer mirrors the definition in Title VII, 42 U.S.C. § 2000e(b). Moreover, Section 504(d) of the Rehabilitation Act states, “[t]he standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.).” 29 U.S.C. § 794(d). Thus, in an employment discrimination case, such as the instant one, the ADA’s definition of “employer” is applicable to the three counts in Plaintiffs Amended Complaint which state a claim under the Rehabilitation Act. The Seventh Circuit has not directly addressed whether a supervisory officer is an “employer” within the meaning of the ADA, Title VII and the Rehabilitation Act. However, the Seventh Circuit has, without discussion, upheld personal liability against decision-making supervisors in at least one Title VII case. Gaddy v. Abex Corp., 884 F.2d 312, 318-19 (7th Cir.1989). See also Price v." }, { "docid": "21080339", "title": "", "text": "that the statute forbids”); Brantley v. Runyon, No. C-1-96-842, 1997 WL 373739, at *3-4 (S.D.Ohio 1997) (dismissing individual ADA defendants because ADA defines “employer” similarly to Title VII and is interpreted like Title VII); Haltek v. Park Forest, 864 F.Supp. 802, 803-05 (N.D.Ill.1994) (holding that there is no individual liability under Title VII, ADA, or Rehabilitation Act because an individual is not an “employer” under the statutory definition). In reaching this conclusion, the courts rely on the ADA’s definition of “employer,” which is in relevant respects identical to Title VII’s definition. Compare 42 U.S.C. § 12111(5)(A) (the ADA: “a person engaged in an industry affecting commerce who has 15 or more employees ... and any agent of such person”) with 42 U.S.C. § 2000e(b) (Title VII: “a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such a person”). Because it is firmly established that individual employees cannot be held liable under Title VII’s definition of employer, see e.g., Dici v. Pennsylvania, 91 F.3d 542, 552 (3d Cir.1996), it follows that the same rule should apply under the Rehabilitation Act. The Rehabilitation Act is to be interpreted like the ADA. This rule is mandated in the Act itself and by case law. See 29 U.S.C. § 794(d) (adopting the ADA’s standards as “[t]he standards used to determine whether this section has been violated in a complaint alleging employment discrimination”); McDonald v. Com. of Pennsylvania Dept. of Pub. Welfare, 62 F.3d 92, 95 (3d Cir.1995) (“the substantive standards for determining liability are the same” in suits under the Rehabilitation Act and the ADA); Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir.1995) (procedural Title VII rules as to burdens of proof are equally applicable in ADA and Rehabilitation Act employment discrimination cases). Based on that rule, and drawing on the same reasoning that leads to the conclusion that the ADA does not permit individual liability, several district courts have held that individuals may not be sued under the Rehabilitation Act. See Baublitz v. State of California, No. C980434, 1998 WL" }, { "docid": "19696084", "title": "", "text": "No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). The ADA defines a “covered entity” as “an employer, employment agency, labor organization, or joint labor-management committee.” 42 U.S.C. 12111(2) (emphasis added). Whether Doyle and Baxter may properly be held individually liable under the ADEA or the ADA, therefore, hinges on whether they may be considered “employers” under those statutes. The term “employer” is defined as “a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year ... [or] any agent of such a person....” 29 U.S.C. § 680(b) (ADEA); see 42 U.S.C. § 12111(5)(A) (substantially similar definition under the ADA); see also 42 U.S.C. § 2000e(b) (substantially similar definition of employer under Title VII). “In the context - of employment discrimination, the ADA, ADEA and Title VII all serve the same purpose—to prohibit discrimination in employment against members of certain classes.” Newman v. GHS Osteopathic, Inc., 60 F.3d 153, 157 (3d Cir.1995). Courts, including the Third Circuit, routinely use the case law under -the three statutes interchangeably. Id.; see DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 724 n. 5 (3d Cir.) (relying on both ADEA and Title VII cases when addressing ADEA claim), cert. denied, — U.S. -, 116 S.Ct. 306, 133 L.Ed.2d 210 (1995). When addressing the question of individual liability under the ADA, ADEA and Title VII, courts look to case law under all three statutes. Stults v. Conoco, Inc., 76 F.3d 651, 655 (5th Cir.1996); Williams v. Banning, 72 F.3d 552, 553 (7th Cir.1995); Matthews v. Rollins Hudig Hall Co., 72 F.3d 50, 52 n. 2 (7th Cir.1995) (dicta); Thelen v. Marc’s Big Boy Corp., 64 F.3d 264, 267 n. 2 (7th Cir. 1995) (dicta); United States Equal Employ’t Opportunity Comm’n v. AIC Security Investigations," }, { "docid": "23451018", "title": "", "text": "Title VII. See Indest v. Freeman Decorating, Inc., 164 F.3d 258, 262 (5th Cir.1999); Grant v. Lone Star Co., 21 F.3d 649, 652 (5th Cir.1994). While Title VII’s definition of the term employer includes “any agent” of an employer, Congress’s purpose was merely to import respondeat superior liability into Title VII. See Indest, 164 F.3d 258 at 262; Grant, 21 F.3d 649 at 652 (citing Miller v. Maxwell’s Int’l, Inc., 991 F.2d 583, 587 (9th Cir.1993))) See also Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th Cir.1997)(“We now hold that an individual employee/supervisor, who does not otherwise qualify as an ‘employer,’ may not be held personally liable under Title VII.”); Haynes v. Williams, 88 F.3d 898, 901 (10th Cir.1996) (Accordingly, we continue to adhere to this court’s established, pre-amendment rule that personal capacity suits against individual supervisors are inappropriate under Title VII. Sauers, 1 F.3d at 1125. “[T]he employment discrimination statutes have broad remedial purposes and should be interpreted liberally, but that cannot trump the narrow, focused conclusion we draw from the structure and logic of the statutes.” AIC Sec. Investigations, Ltd., 55 F.3d at 1282. “Congress has struck a balance between deterrence and societal cost, and we will not upset that balance.” Id.) After reviewing the analysis fashioned by all of our sister circuits, we are persuaded by their analysis and therefore take this opportunity to determine as they have that there is no individual employee liability under Title VII. As held by our sister circuits we find that “[t]he statutory scheme [of Title VII] itself indicates that Congress did not intend to impose individual liability on employees.” Miller, 991 F.2d at 587. If Congress did not intend to protect small entities from the costs associated with litigating discrimination claims, it would not have limited liability to employers with fifteen or more employees. See 42 U.S.C. § 2000e(b). Furthermore, we join the Seventh Circuit in its analysis and holding regarding the 1991 amendments to Title VII: [t]he 1991 amendments to Title VII further bolster our conclusion that individuals are not liable under that Act. Prior to 1991," }, { "docid": "23674243", "title": "", "text": "court, Walsh forfeited the right to raise her claim on appeal. Individual Liability. This circuit has never addressed whether individuals may be personally liable under Title I of the ADA. The circuit has ruled that individuals may not be sued for damages under an analogous statute, Title VII of the Civil Rights Act of 1964 (“Title VII”). See Miller, 991 F.2d at 587. In Miller, the court reasoned that Congress limited liability under Title VII to employers with 15 or more employees because it “did not want to burden small entities with the costs associated with litigating discrimination claims.” Id. It was therefore “inconceivable” that Congress intended to allow individual employees to be sued under Title VII. Id. Walsh argues that Miller is not applicable to her case since it does not address the ADA. Miller does not address the ADA directly, but other circuit courts and numerous district courts have applied its reasoning to protect individuals from ADA liability. See, e.g., Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161, 177 (3rd Cir.2002); Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 808 n. 1 (6th Cir.1999); Butler v. City of Prairie Village, 172 F.3d 736, 744 (10th Cir.1999); Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir.1996); EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1279-80 (7th Cir.1995); Ostrach v. Regents of the Univ. of California, 957 F.Supp. 196, 200 (E.D.Cal.1997). The statutory scheme and language of the ADA and Title VII are identical in many respects. Specifically, the ADA’s definition of “employer” tracks that of Title VII, and similarly limits liability to employers with 15 or more workers. Compare 42 U.S.C. § 2000e(b) with 42 U.S.C. § 12111(5)(a). Furthermore, Title I of the ADA invokes the same “powers, remedies and procedures” as those set forth in Title VII. See 42 U.S.C. § 12117(a) (adopting 42 U.S.C. § 2000e-4 — 2000e-9). Because Title I of the ADA adopts a definition of “employer” and a remedial scheme that is identical to Title VII, Miller’s bar on suits against individual defendants also applies to suits brought under Title I of" }, { "docid": "19099469", "title": "", "text": "in damages for retaliation. For support, the district court observed that the term “person” as used in the Rehabilitation Act should be given the same meaning as it has under Title VII, which defines “person” as including “one or more individuals.” 42 U.S.C. § 2000e(a) (1994). Adopting Hiler’s position, the district court determined that the express and plain meaning of the statute allows a private right of action against supervisors, in their individual capacities, for retaliation. Indeed, the court stated that “when Congress defined ‘person’ as ‘one or more individuals’ it meant ‘individuals.’ ” Although the district court’s “plain language” interpretation of the anti-retaliation provision of the Rehabilitation Act has some surface appeal, we believe that the district court’s decision falls short of fully resolving the question of supervisor liability under the anti-retaliation provision of the Rehabilitation Act. While this is an issue of first impression, we believe that placing significance on the word “person,” as did the district court, frustrates the statutory scheme and remedial purposes of the Rehabilitation Act and ignores analogous case law which hold that supervisors are not liable personally for employment discrimination. Asking what Congress intended the word “person” to mean misdirects the focus of this suit, as the relevant inquiry is what remedies are available to an aggrieved federal employee for retaliation under the Rehabilitation Act. An individual seeking monetary or equitable relief for retaliation under the Rehabilitation Act must discern what remedies are available to them under Title VII. The enforcement provisions of Title VII permit civil actions against an “employer, employment agency, labor organization, or joint labor-management committee. ...” 42 U.S.C. § 2000e-5(b) (1994). An employer is further defined under Title VII as “a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such person.” 42 U.S.C. § 2000e(b) (1994). Hence, individuals who are not employers under Title VII cannot be held personally liable for retaliation under the Rehabilitation Act. Indeed, numerous courts, including this one, have held that supervisors, sued in their individual capacities, are not included within the statutory definition of" }, { "docid": "23451013", "title": "", "text": "determining” this issue. Rivera v. Puerto Rico Aqueduct and Sewers Authority, 331 F.3d 183, 191 n. 4 (1st Cir.2003)(quoting Serapion v. Martinez, 119 F.3d 982, 992 (1st Cir.1997)). Title VII defines “employer”, in relevant part, as “a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such a person.” 42 U.S.C. § 2000e(b). Since the issue arises when a suit is filed against the employer’s employees in their individual capacities, we therefore must analyze and determine whether the employees may be held liable as “agents” of the employing entity. In other words, we must determine whether Title VII by including in the definition of employer, “any agent of such a person”, intended for said “agents” to be subject to liability for engaging in the proscribed discriminatory acts. 42 U.S.C. § 2000e-2. Most circuit courts have held that no personal liability can be attached to agents under Title VII. See Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.l991)(“Individual capacity suits under Title VII are ... .inappropriate. The relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act.”); see also Albra v. Advan, Inc., 490 F.3d 826, 830 (11 th Cir.2007); Williams v. Banning, 72 F.3d 552, 555 (7th Cir.1995)(“Because a supervisor does not, in his individual capacity, fall within Title VII’s definition of employer, [Appellant] can state no set of facts which would enable her to recover under the statute.”). Specifically, in Miller v. Maxwell’s Intern. Inc., 991 F.2d 583, 587 (9th Cir.1993), cert. denied, 510 U.S. 1109, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994), the Ninth Circuit held that Title VII’s ... statutory scheme itself indicates that Congress did not intend to impose individual liability on employees. Title VII limits liability to employers with fifteen or more employees, 42 U.S.C. § 2000e(b), ..., in part because Congress did not want to burden small entities with the costs associated with litigating discrimination claims. If Congress decided to protect small entities with limited resources from liability, it is inconceivable" }, { "docid": "3613461", "title": "", "text": "a matter of law, plaintiff was fired for his insubordination and not his insistence upon attending Yom Kippur services. Accordingly, defendants’ motion for summary judgment with respect to plaintiff’s Title VII claim will be denied. C. Dismissal of Defendant Goldberg Defendants move for the dismissal of defendant Goldberg from this action, arguing that a Title VII religious discrimination suit may only properly be brought against a defendant employer, not an employee of the defendant employer, in his individual capad ty. Title VII states that “[i]t shall be an unlawful employment practice for an employer ... to discharge any individual ... because of such individual’s ... religion-” 42 U.S.C. § 2000e-2(a). Employer is defined as “a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such a person_” 42 U.S.C. § 2000e(b) (emphasis added). The issue raised is whether an “agent” of an employer may be sued individually or only in his official capacity as an agent of the employer. This precise issue has not been expressly addressed by the Sixth Circuit, although in at least two opinions, the Sixth Circuit has commented tangentially on the subject of individual liability under Title VII. These cases will be discussed infra. Initially, a discussion of those circuits which have expressly addressed this issue is informative. In Miller v. Maxwell’s Int’l Inc., 991 F.2d 583 (9th Cir.1993), the Ninth Circuit held that an individual may not be held liable under Title VII and the ADEA in an individual capacity. Id. at 587-88. Rather, the court held that “the obvious purpose” of including agents of employers in the definition of employer “was to incorporate re-spondeat superior liability into the statute.” Id at 587. The court supported its holding with the following reasoning: Title VII limits liability to employers with fifteen or more employees ... in part because Congress did not want to burden small entities with the costs associated with litigating discrimination claims. If Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to" }, { "docid": "21080338", "title": "", "text": "of whether the ADA permits individual liability, and both have ruled that it does not. See Mason v. Stall-ings, 82 F.3d 1007, 1009 (11th Cir.1996) (“We hold that the Disabilities Act does not provide for individual liability, only for employer liability.”); U.S.E.E.O.C. v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1279-82 (7th Cir.1995) (because an individual cannot meet the ADA’s statutory definition of “employer,” the district court erred in not dismissing the individual defendant). Numerous district courts have also so held. See Figueroa v. Fajardo, 1 F.Supp.2d 117, 120 (D.P.R.1998) ■ (finding that the ADA does not provide for individual liability, analogizing to Title VII and ADEA); Pell v. Trustees of Columbia Univ., No. 97 Civ. 0913, 1998 WL 19989, at *10-11 (S.D.N.Y. Jan.21, 1998) (holding that like Title VII, ADA suits should not be allowed against individuals); Randolph v. Rodgers, 980 F.Supp. 1051, 1060 (E.D.Mo.1997) (stating that nothing in the ADA or the Rehabilitation Act indicates that an individual employee was intended to be individually liable; rather, “[i]t is discrimination by the public entity that the statute forbids”); Brantley v. Runyon, No. C-1-96-842, 1997 WL 373739, at *3-4 (S.D.Ohio 1997) (dismissing individual ADA defendants because ADA defines “employer” similarly to Title VII and is interpreted like Title VII); Haltek v. Park Forest, 864 F.Supp. 802, 803-05 (N.D.Ill.1994) (holding that there is no individual liability under Title VII, ADA, or Rehabilitation Act because an individual is not an “employer” under the statutory definition). In reaching this conclusion, the courts rely on the ADA’s definition of “employer,” which is in relevant respects identical to Title VII’s definition. Compare 42 U.S.C. § 12111(5)(A) (the ADA: “a person engaged in an industry affecting commerce who has 15 or more employees ... and any agent of such person”) with 42 U.S.C. § 2000e(b) (Title VII: “a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such a person”). Because it is firmly established that individual employees cannot be held liable under Title VII’s definition of employer, see e.g., Dici v. Pennsylvania, 91 F.3d 542, 552" }, { "docid": "19099470", "title": "", "text": "law which hold that supervisors are not liable personally for employment discrimination. Asking what Congress intended the word “person” to mean misdirects the focus of this suit, as the relevant inquiry is what remedies are available to an aggrieved federal employee for retaliation under the Rehabilitation Act. An individual seeking monetary or equitable relief for retaliation under the Rehabilitation Act must discern what remedies are available to them under Title VII. The enforcement provisions of Title VII permit civil actions against an “employer, employment agency, labor organization, or joint labor-management committee. ...” 42 U.S.C. § 2000e-5(b) (1994). An employer is further defined under Title VII as “a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such person.” 42 U.S.C. § 2000e(b) (1994). Hence, individuals who are not employers under Title VII cannot be held personally liable for retaliation under the Rehabilitation Act. Indeed, numerous courts, including this one, have held that supervisors, sued in their individual capacities, are not included within the statutory definition of “employer” under Title VII and its sister civil rights statutes, and accordingly cannot be held personally liable for discrimination. See Wathen v. General Elec. Co., 115 F.3d 400, 405 (6th Cir.1997) (finding that individual liability is prohibited under Title VII); Pritchard v. Southern Co. Serve., 102 F.3d 1118, 1119 (11th Cir.1996), cert. denied, 520 U.S. 1274, 117 S.Ct. 2453, 138 L.Ed.2d 211 (1997) (finding no personal liability for supervisors under either the Rehabilitation Act or the ADA); Smith v. Lomax, 45 F.3d 402, 403 (11th Cir.1995) (recognizing that supervisors, as employees, cannot be held individually liable under the ADEA or Title VII); EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1279-81 (7th Cir.1995) (collecting cases and finding that the ADA does not impose individual liability). Significantly, in Wathen this Court, confronted with the issue of whether a supervisor is personally liable in damages for employment discrimination under Title VII, concluded that the statute, legislative history, and relevant case law signify that Congress did not intend for individuals to face liability under Title VII’s definition" }, { "docid": "913990", "title": "", "text": "affecting commerce who has fifteen or more employees ... and any agent of such a person____ 42 U.S.C. § 2000e (emphasis added). From the plain language of the statute it would seem that an agent of the employer is personally and individually liable for discriminatory acts. However, Dr. Graue bases his argument against individual liability on the holdings of various circuit and district courts. The most popular argument for the Defendant’s position is presented by the Ninth Circuit Court of Appeals. In Miller v. Maxwell’s International, Inc., et al., 991 F.2d 583 (9th Cir.1993), the Ninth Circuit squarely addresses the issue of individual liability under Title VII. The district court had analyzed the statutory language and concluded as we do that the text of the statute did not preclude individual liability. Id. at 587. The Ninth Circuit acknowledged the merits of this statutory construction but proceeded with its own analysis. That analysis begins with a study of the limits placed on employer liability under the statute. The statutory scheme itself indicates that Congress did not intend to impose individual liability to employers with fifteen or more employees, 42 U.S.C. § 2000e(b) ... in part because Congress did not want to burden small entities with the costs associated with litigating discrimination claims. If Congress decided to protect small entities from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees. Id. The Miller court also relied on precedents in the Ninth Circuit which held that “individual defendants could not be held liable for back pay.” See Padway v. Palches, 665 F.2d 965, 968 (9th Cir.1982). The Padway court had found it significant that Title VII (at that time) allowed only for injunctive relief, including back pay. Id. Dr. Graue argues that a co-employee supervisor, such as himself is not in the position to be able to grant reinstatement or back pay, and therefore should not be liable under Title VII. The problem with the Defendant’s back pay argument is that under the Civil Rights Act of 1991, a plaintiff is not limited to reinstatement or" }, { "docid": "9742954", "title": "", "text": "Title VII Claims Against Defendants Spellings and Siler Title VII provides that “it shall be an unlawful employment practice for an employer” to discriminate on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2. A person aggrieved by such discrimination may bring a civil action against the “employer.” 42 U.S.C. § 2000e-5(b). “Employer” is defined to mean “a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such person.” 42 U.S.C. § 2000e(b). Defendants Spellings and Siler contend that Title VII does not allow employees or supervisors to be sued as individuals but, instead, provides a remedy only against the employer. Several Courts of Appeals have addressed this issue, and the majority hold that a supervisor cannot be held liable individually under Title VII. In Grant v. Lone Star Co., 21 F.3d 649 (5th Cir.1994), the Fifth Circuit held that Title VII does not provide for liability against individual employees who do not otherwise qualify as employers. Id. at 650. The Court reversed a jury verdict in favor of the plaintiff against the defendant branch manager who had participated in the sexual harassment of the plaintiff. Id. at 651. The court noted that Congress could have made individual employees who engage in discriminatory acts liable for damages but did not. Id. at 653. Congress has proscribed conduct by ‘persons’ in other statutory schemes. See 42 U.S.C. § 1981, 1983, 1985, 1986. The absence of specific language making a non-employer individual liable for these damages, when Congress has included such language in other contexts, indicates that Congress did not intend to impose individual liability for backpay damages under title VII, unless the individual meets the statutory definition of ‘employer.’ In sum, there is no indication anywhere in title VII that Congress intended to impose individual liability in such a circumstance. Id. In reaching its decision, the court cited decisions from the 11th Circuit in Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.1991), and the 9th Circuit in Miller v. Maxwell’s Int’l Inc., 991 F.2d" }, { "docid": "22935114", "title": "", "text": "court reiterated its established rule that “personal capacity suits against individual supervisors are inappropriate under Title VII.” Haynes, 88 F.3d at 901; see also Sauers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir.1993) (“Under Title VII, suits against individuals must proceed in their official capacity; individual capacity suits are inappropriate.”). In support of its holding that Title VII precludes individual supervisor liability, the Haynes panel recognized that the “ ‘employment discrimination statutes have broad remedial purposes and should be interpreted liberally, but that ■ cannot trump the narrow, focused conclusion we draw from the structure and logic of the statutes.’ ” Haynes, 88 F.3d at 901 (quoting EEOC v. AIC Sec. Investigations, Ltd., 55 F.3d 1276, 1282 (7th Cir.1995)). As the Seventh Circuit explained, “[a] liberal construction does not mean one that flies in the face of the structure of the statute.” AIC Sec. Investigations, 55 F.3d at 1282 (holding that individuals who do not otherwise meet the statutory definition of employer cannot be held liable under the ADA). These explanations are equally applicable to the structure and logic of the ADA. While the ADA’s remedial purposes are broad and far-reaching, the statute imposes liability only on a specifically defined class of persons. Limiting liability to employers with fifteen or more employees strikes “a balance between the goal of stamping out all discrimination and the goal of protecting small entities from the hardship of litigating discrimination claims.” Id. at 1281; see also Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir.) (“The purpose of this provision [limiting liability to employers with at least fifteen employees] can only be to reduce the burden of the ADEA on small businesses.”), cert. denied, 513 U.S. 1058, 115 S.Ct. 666, 130 L.Ed.2d 600 (1994). The ADA, Title VII, and the ADEA all prohibit discrimination by employers on a variety of grounds. See 42 U.S.C. §§ 12111(2) & 12112(ADA); id. § 2000e-2(a) (Title VII); 29 U.S.C. § 623(a) (ADEA). Similarly to Title VII and the ADEA, the ADA defines “employer” as “a person engaged in an industry affecting commerce who has" } ]

[ { "docid": "22409984", "title": "", "text": "this rule suggested that plaintiff would receive notice from the clerk prior to any dismissal. Moreover, it suggested that once he received such notice, dismissal would occur only if he both (a) failed to take “action in the meantime” and (b) failed to submit a “satisfactory explanation.” Defendants point to language in Shannon indicating that a local rule of procedure may serve as notice that delay leads to dismissal. See 186 F.3d at 194 n. 7. We do not dispute this proposition. But, the critical question is what the local rule of procedure actually states. The rule in question in Shannon stated that “failure by the plaintiff to take action for four (4) months shall be presumptive evidence of lack of prosecution.” Id. That language conveys a much different message than does the language in the District of Connecticut’s Local Rule 16. Defendants also argue that Drake’s counsel was aware of his delay in amending the complaint based on various correspondence between the parties and the passing reference to this delay in the district court’s July 25, 2001 summary judgment opinion. None of this put relator or his counsel on notice that the case would be dismissed if he continued to delay. In a March 2, 2001 letter to Drake’s counsel, for instance, Norden’s counsel simply noted his view that, having “reread [the district court’s] August 24, 2000 order,” and noticed the final sentence (regarding the amendment deadline), it was his view that Drake had failed to comply and should therefore obtain leave to amend the complaint before attempting to prepare a joint scheduling order. Clearly the notice factor does not favor dismissal. C. Prejudice The next factor we examine is whether defendants are “likely to be prejudiced by further delay.” E.g., Martens, 273 F.3d at 180. Although no further delay was contemplated in Drake’s case (since Drake filed the final amended complaint after being reminded that it was overdue), the district court concluded that defendants had already been prejudiced by the delay that had occurred. It held that this prejudice could be presumed as a matter of law based" } ]

[ { "docid": "13431688", "title": "", "text": "authority over case management with the larger concerns of justice, including the strong presumption in favor of deciding cases on the merits,” id., and “procedural aspects such as notice,” Benitez-Garcia v. Gonzalez-Vega, 468 F.3d 1, 5 (1st Cir.2006). This is the rare case where the latter concerns outweigh the former. The plaintiffs’ three-year delay in producing their expert’s report was sufficiently “extreme” to warrant the harsh sanction of dismissal, see Malot, 478 F.3d at 44 (describing this court’s tendency “to reserve dismissal with prejudice for delays measured in years”); and they offered no legitimate excuse for that lengthy delay, see Benitez-Garcia, 468 F.3d at 5. Nevertheless, other relevant factors weigh heavily against imposing that drastic sanction here. First of all, without condoning the lethargic pace that this litigation took, the responsibility for that pace was shared, in large part, by the district court, which failed to exercise its “abiding responsibility” under federal and local rules to “take an active role in case management,” Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46 (1st Cir.2002), by “issuing] orders ‘as soon as practicable’ fixing deadlines for the completion of discovery” and other pretrial events. Torres v. Puerto Rico, 485 F.3d 5, 10 (1st Cir.2007) (quoting Fed.R.Civ.P. 16(b)); see also Ortiz-Anglada, 183 F.3d at 66-67 (vacating a dismissal with prejudice where the district court failed to impose deadlines through a scheduling order). Contrary to federal Rule 16(b), the district court never issued an initial scheduling order; and, contrary to the corresponding local rule, it never scheduled or held a pretrial conference and did not set a trial date until six days before trial. Although the court did set a deadline for the plaintiffs’ production of their expert’s report, once that deadline expired without compliance, the court never set a new one even after the defendants eventually asked the court to do so. The court further contributed to delay by taking months to rule on the parties’ motions, which, if promptly decided, would have moved the case along more expeditiously. For example, the court never ruled on the plaintiffs’ April 2007 request" }, { "docid": "23527535", "title": "", "text": "was not an issue and relief was granted under Rule 60(b)(1) from dismissal for want of prosecution, generally have had compelling factual reasons or excuses for delay. Such exceptional circum stances were not shown here. The excuse for delay here was the death of Fox’s attorney’s wife on April 26, 1978. This occurred almost four months after the case was transferred to the Eastern District of Missouri on January 5,1978, and as the district court noted, nearly a year before the motion to dismiss was filed. We are unable to say that denial of the motion for reconsideration was an abuse of discretion. Cf. Link v. Wabash Railroad, 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (affirmance of dismissal for failure to prosecute); Moore v. St. Louis Music Supply Co., 539 F.2d 1191 (8th Cir.1976) (reversal of dismissal for failure to prosecute). Accordingly, the judgment is affirmed. . Rule 15 of the Rules of the United States District Court for the Eastern District of Missouri provides: All civil cases which have been pending for fifteen months shall be examined by the Court to determine if the circumstances with respect to each case are appropriate for dismissal for failure to prosecute, and if the circumstances merit such action, the attorneys in the case shall be advised that unless good cause be shown against said dismissal the Court shall dismiss such case for failure to prosecute and in the order of dismissal note whether the same be with or without prejudice. . As the Supreme Court stated in Link v. Wabash Railroad, 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962): The authority of a federal trial court to dismiss a plaintiff’s action with prejudice because of his failure to prosecute cannot seriously be doubted. The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts. The power is of ancient origin, having its roots in judgments of non-suit and non prosequitur entered at common law, e. g., 3" }, { "docid": "22097110", "title": "", "text": "v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), where the Supreme Court held that a district court has the inherent power to dismiss a case with prejudice for failure of counsel to attend a pretrial conference. In so holding, the Court made clear that the fact that the dismissal adversely affects the legal rights of the client does not in itself negate the power. 370 U.S. at 633, 82 S.Ct. 1386. Lower courts, however, have not viewed Link as announcing a mechanical or automatic rule. Riezakis v. Loy, 490 F.2d 1132, 1135 (4 Cir. 1974). While the power to dismiss clearly lies with the district courts, it is appropriately exercised only with restraint. “Against the power to prevent delays must be weighed the sound public policy of deciding cases on their merits.” Id. Indeed, it has been the view of this and other courts of appeals that the dismissal power should be exercised “only on the face of a clear record of delay or contumacious conduct by the plaintiff.” Durham v. Florida East Coast Ry. Co., 385 F.2d 366, 368 (5 Cir. 1967); Reizakis v. Loy, supra, at 1135. See also Bush v. United States Postal Service, supra, at 44. A holding which limits the exercise of the dismissal power to situations in which there is clear evidence of deliberate delay on the part of the plaintiff is entirely consistent with the facts underlying the Link decision. It was a diversity action to recover damages for personal injuries sustained in a collision between plaintiff’s automobile and one of defendant’s trains. At the time of the scheduled pretrial conference, the action had been pending on the district court’s docket for six years. Plaintiff’s dilatoriness in prosecuting the case was well-documented. 370 U.S. at 634 n. 11, 82 S.Ct. 1386,1391. “Against this background, it is hardly surprising that the District Court concluded that the failure to appear for a pretrial conference was merely another delaying tactic.” Id. The Supreme Court concluded that under such circumstances the district court was entirely justified in terminating the litigation on" }, { "docid": "6753002", "title": "", "text": "CHOY, Circuit Judge: The district court, finding that Tolbert had failed to prosecute his legal malpractice suit, dismissed the action with prejudice. See Fed.R.Civ.P. 41(b). We reverse. Tolbert’s only offense was failing to appear at a status conference set for a date less than seven months after the complaint was filed. The record indicates that Leigh-ton and his attorney did not appear at the conference either. (Indeed, they apparently have not participated in the case in any way either in the district court or here.) Sua sponte dismissals for failure to prosecute will be affirmed unless the district court abused its discretion. Link v. Wabash R.R., 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962). In Link, the Supreme Court upheld such a dismissal for failure to attend a pretrial conference in a case already six years old, where there was evidence that the plaintiff “had been deliberately proceeding in dilatory fashion.” Id. But the Court made clear that it was not deciding “whether unexplained absence from a pretrial conference would alone justify a dismissal with prejudice if the record showed no other evidence of dilatoriness on the part of the plaintiff.” Id. at 634, 82 S.Ct. at 1391. The question that Link reserved is before us today. Other courts of appeals have held that such an absence, alone, does not justify the drastic sanction of dismissal. Moreno v. Collins, 362 F.2d 176 (7th Cir. 1966) (counsel missed status call three months after complaint filed); Meeker v. Rizley, 324 F.2d 269 (10th Cir. 1963) (out-of-state plaintiff, pro se, missed pretrial conference three months after complaint filed); accord, Flaksa v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir.) (counsel twice failed to appear at or send prepared substitute to pretrial conferences, and was guilty of other delay, in case less than a year old; dismissal was abuse of discretion), cert. denied, 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968). We agree that it is an abuse of discretion to dismiss a plaintiff’s case for failure to prosecute where (1) the only evidence of dilatoriness" }, { "docid": "2115258", "title": "", "text": "this delay, and no lesser sanctions were imposed prior to the extreme sanction of dismissal of the case with prejudice. We conclude that the district court abused its discretion in dismissing Carpenter’s complaint with prejudice. IV. CONCLUSION For the foregoing reasons, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion. . Indeed, Carpenter’s counsel has continued his pattern of inflammatory language and noncompliance with procedural filing rules. See Fed. R.App. P. 32(a)(5)(A) (requiring proportionally spaced typeface in briefs to be 14-point or larger). . It is worth noting that Carpenter was not in violation of any scheduling order; no pretrial conference had been held under Rule 16(a), nor had a scheduling order been issued under Rule 16(b). See Fed.R.Civ.P. 16; cf. Garcia-Pérez v. Hosp. Metropolitano, 597 F.3d 6, 8 (1st Cir.2010) (explaining that the district court’s failure \"to take an active role in case management,\" including a failure to issue a scheduling order or hold a pretrial conference, militated against dismissing the case with prejudice despite lengthy delays by plaintiffs (internal quotation marks omitted)). . Other courts of appeals, considering the specific circumstances of particular cases, have reversed dismissals for failure to prosecute after even longer periods of delay. See, e.g., García-Pérez, 597 F.3d at 7-8 (reversing sua sponte dismissal with prejudice even after plaintiffs delayed three years in producing expert report); United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 251 (2d Cir.2004) (reversing dismissal with prejudice despite plaintiffs seventeen-month delay in filing amended complaint, disagreeing with the district court \"that the circumstances were sufficiently egregious ... as to warrant dismissal”); GCIU Emp’r Ret. Fund v. Chi. Tribune Co., 8 F.3d 1195, 1199-1200 (7th Cir.1993) (reversing dismissal even after a twenty-two month period of inactivity on the docket during which the parties failed to apprise the district court that settlement negotiations were ongoing). The delay at issue in this case is not nearly as long as the delays which the Supreme Court has held warrant dismissal. See Link, 370 U.S. at 628 n. 2, 633, 82 S.Ct. 1386" }, { "docid": "2115259", "title": "", "text": "delays by plaintiffs (internal quotation marks omitted)). . Other courts of appeals, considering the specific circumstances of particular cases, have reversed dismissals for failure to prosecute after even longer periods of delay. See, e.g., García-Pérez, 597 F.3d at 7-8 (reversing sua sponte dismissal with prejudice even after plaintiffs delayed three years in producing expert report); United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 251 (2d Cir.2004) (reversing dismissal with prejudice despite plaintiffs seventeen-month delay in filing amended complaint, disagreeing with the district court \"that the circumstances were sufficiently egregious ... as to warrant dismissal”); GCIU Emp’r Ret. Fund v. Chi. Tribune Co., 8 F.3d 1195, 1199-1200 (7th Cir.1993) (reversing dismissal even after a twenty-two month period of inactivity on the docket during which the parties failed to apprise the district court that settlement negotiations were ongoing). The delay at issue in this case is not nearly as long as the delays which the Supreme Court has held warrant dismissal. See Link, 370 U.S. at 628 n. 2, 633, 82 S.Ct. 1386 (holding that dismissal was proper after, among other things, plaintiffs delayed over eighteen months in responding to interrogatories); cf. Nat’l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976) (holding that dismissal was proper sanction under Rule 37 where respondents failed to answer interrogatories for seventeen months)." }, { "docid": "2115257", "title": "", "text": "dismissed the case without prejudice. We acknowledge that the district court had good cause to impose some sanction on Carpenter or his attorney, given the continued violations of the local filing rules. See Bradenburg v. Beaman, 632 F.2d 120, 122 (10th Cir.1980) (explaining that “[i]t is incumbent on litigants” to follow local rules of procedure). Although counsel has a clear obligation to familiarize himself with a district court’s local rules and to follow them, we conclude that an alternative sanction placed on Carpenter’s counsel would have been more appropriate before dismissing Carpenter’s complaint with prejudice and depriving Carpenter of his day in court. See Wu, 420 F.3d at 644-45; Mulbah, 261 F.3d at 593-94. Accordingly, this factor weighs against dismissal. In sum, despite Carpenter’s counsel’s improper conduct in this case, the violations of local filing rules combined with a five-and-a-half-month delay in filing a motion for default judgment do not warrant depriving Carpenter of a chance to have his claims adjudicated on the merits. There has been no finding that Defendants have been prejudiced by this delay, and no lesser sanctions were imposed prior to the extreme sanction of dismissal of the case with prejudice. We conclude that the district court abused its discretion in dismissing Carpenter’s complaint with prejudice. IV. CONCLUSION For the foregoing reasons, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion. . Indeed, Carpenter’s counsel has continued his pattern of inflammatory language and noncompliance with procedural filing rules. See Fed. R.App. P. 32(a)(5)(A) (requiring proportionally spaced typeface in briefs to be 14-point or larger). . It is worth noting that Carpenter was not in violation of any scheduling order; no pretrial conference had been held under Rule 16(a), nor had a scheduling order been issued under Rule 16(b). See Fed.R.Civ.P. 16; cf. Garcia-Pérez v. Hosp. Metropolitano, 597 F.3d 6, 8 (1st Cir.2010) (explaining that the district court’s failure \"to take an active role in case management,\" including a failure to issue a scheduling order or hold a pretrial conference, militated against dismissing the case with prejudice despite lengthy" }, { "docid": "13789062", "title": "", "text": "of Hoffman’s attorney, a sole practitioner, to bear his workload; that the attorney was willing to accept reasonable sanctions for his delays; and that the Appellant’s Brief had been completed and was ready to be filed. The district court denied the motion, and Hoffman appeals the dismissal. II. Analysis District courts possess the inherent authority to dismiss a case sua sponte for want of prosecution as part of 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.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962). In exercising this authority, the district courts must “perpetually balance the competing interests of keeping a manageable docket against deciding eases on their merits.” GCIU Employer Retirement Fund v. Chicago Tribune, 8 F.3d 1195, 1199 (7th Cir.1993) (citing Webber v. Eye Corp., 721 F.2d 1067, 1071 (7th Cir.1983)). Dismissal for want of prosecution is an undeniably harsh sanction, having the procedural effect of an adjudication on the merits against the plaintiff. See Fed.R.Civ.P. 41(b). This severity requires that district courts resort to dismissal “only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailable.” GCIU, 8 F.3d at 1199 (quoting Pyramid Energy, Ltd. v. Heyl & Patterson, Inc., 869 F.2d 1058, 1061 (7th Cir.1989)) (emphasis omitted). In light of the district courts’ need to maintain effective control over their dockets, their exercise of this inherent authority demands our deference. As a result, we review a district court’s dismissal for want of prosecution only for an abuse of discretion. Johnson v. Kamminga, 34 F.3d 466, 468 (7th Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 1373, 131 L.Ed.2d 228 (1995); Halas v. Consumer Services, Inc., 16 F.3d 161, 163 (7th Cir.1994); GCIU, 8 F.3d at 1199. Applying this standard, reversal is warranted only if the district court’s decision “strike[s] us as fundamentally wrong,” Anderson v. United Parcel Service, 915 F.2d 313, 315 (7th Cir.1990), or if “it is clear that no" }, { "docid": "23524592", "title": "", "text": "relief from a final judgment, order, or proceeding on the grounds of mistake, inadvertence, excusable neglect, newly discovered evidence, or fraud. “It is well-established that Rule 60(b) relief ‘is an extraordinary remedy and is granted only in exceptional circumstances.’ ” Harold Washington Party v. Cook County, Illinois Democratic Party, 984 F.2d 875, 879 (7th Cir.) (quoting C.K.S. Engineers, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1205 (7th Cir.1984)), cert. denied, — U.S.-, 114 S.Ct. 86, 126 L.Ed.2d 54 (1993). Relief under Rule 60(b) from a dismissal for lack of prosecution is thus warranted “only upon a showing of extraordinary circumstances that create a substantial danger that the underlying judgment was unjust.” Daniels v. Brennan, 887 F.2d 783, 790 (7th Cir.1989) (quoting 3 Penny Theater Corp. v. Plitt Theatres, Inc., 812 F.2d 337, 340 (7th Cir.1987)) (citations, internal quotations omitted). The district court’s denial of a Rule 60(b) motion is reviewed under a highly deferential standard, and is reversed only for an abuse of discretion. See id.; Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 607 (7th Cir.1986). “It is well-established that district courts possess inherent authority to dismiss a case sua sponte for a plaintiffs failure to prosecute.” GCIU Employer Retirement Fund v. Chicago Tribune Co., 8 F.3d 1195, 1199 (7th Cir.1993) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)). A court is permitted to infer a lack of intent to prosecute a case from a pattern of failure to meet court-imposed deadlines. See id.; Pyramid Energy, Ltd. v. Heyl & Patterson, Inc., 869 F.2d 1058, 1061—62 (7th Cir.1989). Where the pattern of dilatory conduct is clear, dismissal need not be preceded by the imposition of less severe sanctions. See Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir.1993); Pyramid Energy, 869 F.2d at 1062. Moreover, because a district court’s dismissal for failure to prosecute under Fed.R.Civ.P. 41(b) is reviewed only for an abuse of discretion, see GCIU Employer Retirement Fund, 8 F.3d at 1199, a court’s decision under Rule 60(b) not to reinstate a case dismissed for" }, { "docid": "2877610", "title": "", "text": "Attached Pages 12, 16 [Plf.’s Compl.].) . (Dkt. No. 1, ¶ 7, \"Seventh Cause of Action” [Plf.’s Compl.]; Dkt. No. 1, ¶ 6, Attached Pages 12-14, 16 [Plf.’s Compl.].) . (Dkt. No. 1, ¶ 7, \"Ninth Cause of Action” [Plf.'s Compl.]; Dkt. No. 1, ¶ 6, Attached Pages 15 and 16 [Plf.’s Compl.].) . Fed.R.Civ.P. 41(b) (providing, in pertinent part, that \"[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it”); Saylor v. Bastedo, 623 F.2d 230, 238-239 (2d Cir.1980) (recognizing that, under the language of Fed. R.Civ.P. 41[b], a district court retains the inherent power to dismiss a plaintiff's complaint, sua sponte, for failure to prosecute) [citations omitted]; accord, Link v. Wabash R.R. Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), Theilmann v. Rutland Hospital, Inc., 455 F.2d 853, 855 (2d Cir. 1972); see also N.D.N.Y. L.R. 41.2(a) (\"Whenever it appears that the plaintiff has failed to prosecute an action or proceeding diligently, the assigned judge shall order it dismissed.”) [emphasis added]; cf. Fed.RXiv.P. 16(f) (\"On motion or on its own, the court may issue any just orders ... if a party or its attorney ... fails to obey a scheduling or other pretrial order.”) [emphasis added]. . See Merker v. Rice, 649 F.2d 171, 173 (2d Cir.1981). . See Shannon v. GE Co., 186 F.3d 186, 193 (2d Cir.1999) (affirming Fed.R.Civ.P. 41[b] dismissal of plaintiff's claims by U.S. District Court for Northern District of New York based on plaintiff's failure to prosecute the action) [citation and internal quotation marks omitted]; see also Drake v. Norden Sys., 375 F.3d 248, 254 (2d Cir.2004) (articulating same standard in slightly different form); accord, Ruzsa v. Rubenstein & Sendy Attys at Law, 520 F.3d 176, 177-78 (2d Cir.2008). . See Nita v. Conn. Dep’t of Env. Protection, 16 F.3d 482 (2d Cir.1994). . See Ruzsa v. Rubenstein & Sendy Attys at Law, 520 F.3d 176, 177-78 (2d Cir.2008) (dismissing action, in part because of plaintiff’s seven-month delay during prosecution" }, { "docid": "13789063", "title": "", "text": "against the plaintiff. See Fed.R.Civ.P. 41(b). This severity requires that district courts resort to dismissal “only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailable.” GCIU, 8 F.3d at 1199 (quoting Pyramid Energy, Ltd. v. Heyl & Patterson, Inc., 869 F.2d 1058, 1061 (7th Cir.1989)) (emphasis omitted). In light of the district courts’ need to maintain effective control over their dockets, their exercise of this inherent authority demands our deference. As a result, we review a district court’s dismissal for want of prosecution only for an abuse of discretion. Johnson v. Kamminga, 34 F.3d 466, 468 (7th Cir.1994), cert. denied, — U.S. —, 115 S.Ct. 1373, 131 L.Ed.2d 228 (1995); Halas v. Consumer Services, Inc., 16 F.3d 161, 163 (7th Cir.1994); GCIU, 8 F.3d at 1199. Applying this standard, reversal is warranted only if the district court’s decision “strike[s] us as fundamentally wrong,” Anderson v. United Parcel Service, 915 F.2d 313, 315 (7th Cir.1990), or if “it is clear that no reasonable person could concur in the trial court’s assessment of the issue under consideration,” Daniels v. Brennan, 887 F.2d 783, 785 (7th Cir.1989) (citing 3 Penny Theater Corp. v. Plitt Theatres, Inc., 812 F.2d 337, 339 (7th Cir.1987)). Hoffman argues that the district court abused its discretion by, among other things, failing to warn his attorney prior to dismissing the appeal. In Link v. Wabash R.R. Co., the Supreme Court held that the absence of express notice prior to a dismissal for want of prosecution does not automatically violate a plaintiffs right to due process. 370 U.S. at 632-33, 82 S.Ct. at 1389-90. Rather, the decision whether to give advanced warning of dismissal is entrusted to the sound discretion of the district court. Id.; Johnson, 34 F.3d at 468; Lockhart v. Sullivan, 925 F.2d 214, 219 (7th Cir.1991). The Link Court went on, however, to explain that the appropriateness of notice “turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his" }, { "docid": "23524593", "title": "", "text": "601, 607 (7th Cir.1986). “It is well-established that district courts possess inherent authority to dismiss a case sua sponte for a plaintiffs failure to prosecute.” GCIU Employer Retirement Fund v. Chicago Tribune Co., 8 F.3d 1195, 1199 (7th Cir.1993) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)). A court is permitted to infer a lack of intent to prosecute a case from a pattern of failure to meet court-imposed deadlines. See id.; Pyramid Energy, Ltd. v. Heyl & Patterson, Inc., 869 F.2d 1058, 1061—62 (7th Cir.1989). Where the pattern of dilatory conduct is clear, dismissal need not be preceded by the imposition of less severe sanctions. See Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir.1993); Pyramid Energy, 869 F.2d at 1062. Moreover, because a district court’s dismissal for failure to prosecute under Fed.R.Civ.P. 41(b) is reviewed only for an abuse of discretion, see GCIU Employer Retirement Fund, 8 F.3d at 1199, a court’s decision under Rule 60(b) not to reinstate a case dismissed for want of prosecution has been described as “discretion piled on discretion.” Tolliver v. Northrop Corp., 786 F.2d 316, 319 (7th Cir.1986). Dickerson contends that the court committed an abuse of discretion in denying her motion to reconsider its refusal to vacate the Rule 41(b) dismissal for the following reasons: (1) the court’s application of Rule 21(a) of the Local General Rules of the Northern District of Illinois was improper on its face; (2) the dismissal for failure to prosecute was unsupported by a record of delay or contumacious conduct, and unaccompanied by any explanation why a less severe sanction was inadequate; and (3) counsel did not willfully miss deadlines but did so only because he was “inundated by unexpected and severe personal problems.” In advancing these arguments, Dickerson appears to be asking the court to review the merits of the underlying dismissal for want of prosecution rather than its denial of her Rule 60(b) motion. Cf. Webber v. Eye Corp., 721 F.2d 1067 (7th Cir.1983) (per curiam) (appeal of Rule 41(b) dismissal). An appeal from" }, { "docid": "18196077", "title": "", "text": "prosecution. This authority “has generally been considered an ‘inherent power,’ 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.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). We review a district court’s dismissal of a complaint for failure to prosecute for an abuse of discretion. Id. at 633, 82 S.Ct. 1386. We shall presume that the district court “acted reasonably, and reversal is warranted only if it is plain that the dismissal was a mistake or that the judge did not consider factors essential to the exercise of sound discretion.” Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720, 725 (7th Cir.2004) (internal quotation and citation omitted). “Once a party invokes the judicial system by filing a lawsuit, it must abide by the rules of the court; a party can not decide for itself when it feels like pressing its action and when it feels like taking a break because ‘[tjrial judges have a responsibility to litigants to keep their court calendars as current as humanly possible.’ ” GCIU Employer Ret. Fund v. Chicago Tribune Co., 8 F.3d 1195, 1198-99 (7th Cir.1993) (quoting Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 608 (7th Cir.1986)). Ms. James contends that dismissal was too harsh of a sanction. Specifically, she maintains that the delay was not caused by neglect or dilatory tactics on her part. Rather, she “very much wanted to pursue her cause,” but could not because the district court compelled her to arbitrate her claims, which she could not afford to do. Reply Br. at 8; see Appellant’s Br. at 19-20. The district court noted that Ms. James continued to assert the same arguments that it already had ruled were not meritorious. In denying Ms. James’ motion for reconsideration and, alternatively, for dismissal, the court stated: This request comes far too late in the day.... James took no steps following the Court’s February 2003 order compelling arbitration to carry out that order’s" }, { "docid": "13431687", "title": "", "text": "PER CURIAM. On the scheduled trial date, which had been set only six days earlier, the district court, acting sua sponte, dismissed this case with prejudice “for lack of prosecution based on the plaintiffs’ non-compliance with discovery deadlines,” particularly their failure to produce a medical expert report. Without condoning the plaintiffs’ lengthy and unjustified delay in producing their expert’s report, we reluctantly vacate the dismissal because, in short, the absence of a clearly communicated deadline for providing expert reports or notice that failing to do so more promptly could result in dismissal rendered that drastic sanction an abuse of discretion. We explain. We review dismissals under Rule 41(b) for abuse of discretion. Malot v. Dorado Beach Cottage Assocs., 478 F.3d 40, 43 (1st Cir.2007). Although “[cjlaims that a court has abused its discretion in dismissing a case for failure to adhere to discovery orders or for failure to prosecute have ‘not received a sympathetic ear,’ ” id. (quoting Damiani v. R.I. Hosp., 704 F.2d 12, 17 (1st Cir.1983)), we “must fairly balance the court’s venerable authority over case management with the larger concerns of justice, including the strong presumption in favor of deciding cases on the merits,” id., and “procedural aspects such as notice,” Benitez-Garcia v. Gonzalez-Vega, 468 F.3d 1, 5 (1st Cir.2006). This is the rare case where the latter concerns outweigh the former. The plaintiffs’ three-year delay in producing their expert’s report was sufficiently “extreme” to warrant the harsh sanction of dismissal, see Malot, 478 F.3d at 44 (describing this court’s tendency “to reserve dismissal with prejudice for delays measured in years”); and they offered no legitimate excuse for that lengthy delay, see Benitez-Garcia, 468 F.3d at 5. Nevertheless, other relevant factors weigh heavily against imposing that drastic sanction here. First of all, without condoning the lethargic pace that this litigation took, the responsibility for that pace was shared, in large part, by the district court, which failed to exercise its “abiding responsibility” under federal and local rules to “take an active role in case management,” Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46 (1st" }, { "docid": "2163008", "title": "", "text": "Farm Bureau Casualty Co., 353 F.2d 737, 737 (5th Cir.), cert. denied, 384 U.S. 910, 86 S.Ct. 1352, 16 L.Ed.2d 363 (1966). Cf. 6 C. Wright & A. Miller, Federal Practice and Procedure § 1526 at 597 (1971) (defense may be stricken for failure to provide information required in pretrial order). An appellate court reviewing the exercise of this power is constrained by the abuse of discretion standard. Link, 370 U.S. at 633, 82 S.Ct. at 1390. Defendants argue primarily that the delays and violations of court orders are attributable solely to defense counsel, not to defendants themselves. We acknowledge the appellate opinions suggesting that trial courts should hesitate to penalize litigants for the transgressions of their lawyers. See, e.g., Silas v. Sears, Roebuck & Co., 586 F.2d 382, 385 (5th Cir.1978); Jackson v. Washington Monthly Co., 186 D.C.App. 288, 569 F.2d 119, 123-24 (1977). We have viewed dismissal as particularly harsh when the parties whose interests are at stake are not the named plaintiffs who have complete control of the litigation. See EEOC v. Troy State, supra. The Supreme Court has, however, expressly condoned the dismissal of a suit for delay caused by counsel chosen by the party. Link v. Wabash Railroad Co., 370 U.S. at 633-34, 82 S.Ct. at 1390. The appellate decisions that have reversed dismissals based on failure of counsel have generally dealt with relatively short periods of delay and few violations of court orders that may understandably have escaped the attention of the clients. See, e.g., Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241 (5th Cir.1980) (dismissal less than ten months after suit filed; only one court order disobeyed along with a single inadvertent failure to attend a pretrial conference); Flaska v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir.) (dismissal eight months after answer filed), cert. denied, 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968); Durham v. Florida East Coast Railway Co., 385 F.2d 366 (5th Cir.1967) (dismissal less than ten months after suit filed). In this case, however, the large sum of money involved, the lengthy period" }, { "docid": "3566983", "title": "", "text": "expert witnesses to be used at trial. Plaintiff contends the names were provided to defendant. Even if the identities of the witnesses were not provided to defendant, the procedural history of this case, considered in its entirety, does not demonstrate that plaintiff has not been diligent in prosecuting the case; a single failure by plaintiff to provide the names of prospective witnesses is insufficient, in this factual context, to establish a clear record of delay or contumacious conduct. There is no evidence that the district court considered plaintiff’s excuse for not being in court on November 12 a subterfuge. Compare Wojton v. Marks, 344 F.2d 222 (7th Cir.1965). Moreover, the case was barely eighteen months old when dismissed by the district court. A dismissal with prejudice is particularly disfavored with relatively young cases, such as the one before us. See, e.g., Raiford v. Pounds, 640 F.2d 944 (9th Cir.1981) (dismissal of case nearly a year old for failure to file timely pretrial order reversed and remanded for consideration of less severe sanctions); Tolbert v. Leighton, 623 F.2d 585 (9th Cir.1980) (dismissal for failure to appear at a status conference set for a date less than seven months after the filing of the complaint reversed and remanded for consideration of less severe sanctions); Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241 (5th Cir.1980) (dismissal less than ten months after complaint filed held to be an abuse of discretion; only one court order disobeyed, with a single failure to attend a pretrial conference); Schenck v. Bear, Stearns & Co., Inc., 583 F.2d 58 (2d Cir.1978) (dismissal of thirteen-month old case, when plaintiff’s counsel had been inactive for eleven months, held to be an abuse of discretion); Flaksa v. Little Marine Construction Co., 389 F.2d 885 (5th Cir.), cert. denied, 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968) (dismissal of case less than one year old held to be an abuse of discretion, although plaintiff’s counsel delayed eight months in pursuing case and appeared at pretrial conferences unprepared). Decisions of this court have upheld dismissals with prejudice for failure" }, { "docid": "13789061", "title": "", "text": "with the delay and additional request for time, the district court dismissed the case sua sponte for want of prosecution and rebuked Hoffman’s attorney: ... I didn’t get [a brief] in June, I didn’t get one in July, I didn’t get one in August, I didn’t get one in September. And, in fact, I’m not going to get one in October, because you’re coming in here after I had to go to the effort of having my minute clerk issue a minute order calling you in here, and you then come in and say, “Oh, I need 21 days.” Well, you had your time. This appeal is dismissed for want of prosecution. There is no good basis, and you articulated no good basis for your failure to comply with the orders or to move for an extension of time.... The appeal is dismissed. On November 9, 1992, Hoffman filed a motion to vacate the dismissal order. The motion represented that the delays were not caused by Hoffman; that the delays were caused by the inability of Hoffman’s attorney, a sole practitioner, to bear his workload; that the attorney was willing to accept reasonable sanctions for his delays; and that the Appellant’s Brief had been completed and was ready to be filed. The district court denied the motion, and Hoffman appeals the dismissal. II. Analysis District courts possess the inherent authority to dismiss a case sua sponte for want of prosecution as part of 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.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962). In exercising this authority, the district courts must “perpetually balance the competing interests of keeping a manageable docket against deciding eases on their merits.” GCIU Employer Retirement Fund v. Chicago Tribune, 8 F.3d 1195, 1199 (7th Cir.1993) (citing Webber v. Eye Corp., 721 F.2d 1067, 1071 (7th Cir.1983)). Dismissal for want of prosecution is an undeniably harsh sanction, having the procedural effect of an adjudication on the merits" }, { "docid": "6826127", "title": "", "text": "the ease of court-appointed counsel? If so, did the district court here abuse its discretion in dismissing Dunphy’s case? If not, what additional considerations should be taken into account when counsel is court-appointed, and how does Dunphy’s case fare under them? We begin with several well established propositions. First, as the Supreme Court held in Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), the district courts have the authority to dismiss complaints “for failure ... to prosecute or to comply with ... any order of the court” on motion of the defendant, id. at 630, 82 S.Ct. at 1388, quoting Fed. R. Civ. P. 41(b), or sua sponte as part of the “control necessarily vested in courts ... to achieve the orderly and expeditious disposition of cases.” 370 U.S. at 630-31, 82 S.Ct. at 1388. Dismissal for failure to prosecute is an extraordinarily harsh sanction, to which courts should resort “only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailable.” In the Matter of Bluestein & Co., 68 F.3d 1022, 1025 (7th Cir.1995) (per curiam) (quot ing GCIU Employer Retirement Fund v. Chicago Tribune Co., 8 F.3d 1195, 1199 (7th Cir.1993), in turn quoting Pyramid Energy, Ltd. v. Heyl & Patterson, Inc., 869 F.2d 1058, 1061 (7th Cir.1989) (emphasis omitted in GCIU)). Appellate review of these orders is oniy for abuse of discretion, see Bluestein, 68 F.3d at 1022; Johnson v. Kamminga, 34 F.3d 466, 468 (7th Cir.1994). Nonetheless, abuse of discretion review is not the same thing as a rubber stamp, and we have not hesitated to find such an abuse where the facts warranted. See Bluestein, 68 F.3d at 1025-26; Penny v. Shansky, 884 F.2d 329, 330 (7th Cir.1989) (pro se plaintiff); Sisk v. United States, 756 F.2d 497, 499-500 (7th Cir.1985) (same); Heidelberg v. Hammer, 577 F.2d 429 (7th Cir.1978) (same). Accord, Hernandez v. Whiting, 881 F.2d 768, 771 (9th Cir.1989); Holt v. Pitts, 619 F.2d 558, 562 (6th Cir.1980). Here, we have the classic problem" }, { "docid": "15468590", "title": "", "text": "on its own motion. West v. Gilbert, 361 F.2d 314 (2d Cir.), cert. denied, 385 U.S. 919, 87 S.Ct. 229, 17 L.Ed.2d 143 (1966). Our scope of review is “extremely narrow.” Theilmann v. Rutland Hospital, Inc., 455 F.2d 853, 855 (2d Cir. 1972). The matter is discretionary, and on appeal from such an order an appellate court will not reverse except for an abuse of discretion. Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). In West, the case was two and one-half years old when the court entered an order that the plaintiff “take other action to obtain a determination of the above entitled action by August 17,1964, or else the action may be dismissed without further notice for want of prosecution.” The plaintiff took no action and the case was dismissed. In Link, the action was six years old. It was only after two fixed trial dates had been postponed and plaintiff’s counsel failed to appear at a conference that the case was sua sponte dismissed for failure to prosecute. The court found that there was no reasonable excuse for failure to appear at the pretrial conference. That finding was not disturbed on appeal. Here, plaintiff’s case was barely thirteen months old. His counsel’s inaction spanned eleven months. There had been no prior prodding of the plaintiff by the court or by defendants. We agree with the appellees and the district judge that Schenck had been anything but diligent in the prosecution of his action. Furthermore, counsel’s excuses — the new partnership, the recent departure from state government service and the distractions of a heavy litigation schedule — do not justify the delay here. Nevertheless, new counsel entered this case, appeared at the pretrial status conference and expressed a willingness to go forward. “The sound exercise of discretion requires the judge to consider and use lesser sanctions than dismissal in the appropriate case.” Ali, supra, 542 F.2d at 597. On the facts we are able to glean from this skimpy record, we conclude that this is such a case and that it" }, { "docid": "14057624", "title": "", "text": "Fed.R.Civ.P. 6(e). . The district court may have been relying on a mistaken docket entry, made at the bottom of the entry for defendants’ motion for sanctions, indicating that a response was due on November 16, 2005. Nevertheless, we can find nothing in the record indicating that this deadline was entered as a formal order of the court, and in the absence of such the district court’s local rules were controlling. . The Supreme Court has held that the term \"excusable neglect” should be interpreted flexibly. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 389, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). It instructed the lower courts to engage in an equitable balancing test, looking to all relevant circumstances, including the degree of prejudice to the adverse party, the potential impact on judicial proceedings, and the reasons for delay. Id. at 395, 113 S.Ct. 1489. This court has held that Pioneer was meant to apply more broadly, in other circumstances in which the party who missed a deadline argues excusable neglect. See Pratt v. Philbrook, 109 F.3d 18, 19-20 (1st Cir.1997); see also Graphic Commc'ns Int'l Union, Local 12-N v. Quebecor Printing Providence, Inc., 270 F.3d 1, 5 (1st Cir.2001) (applying Pioneer to Fed.R.App. P. 4(a)); Hospital del Maestro v. NLRB, 263 F.3d 173, 174-75 & n. 1 (1st Cir.2001) (applying Pioneer to NLRB rules). .To the extent the Supreme Court upheld dismissal in Link without notice, that case is distinguishable. There, at the time of the dismissal the district court had already been apprised of the party’s reason for noncompliance. See Link, 370 U.S. at 628, 82 S.Ct. 1386. Also, there is no indication in Link that the district court was acting contrary to local rules. See id. at 633, 82 S.Ct. 1386 n. 8. Also distinguishable is Cintron-Lorenzo v. Depar-tamento de Asuntos del Consumidor, 312 F.3d 522 (1st Cir.2002), which upheld a sua sponte dismissal. In that case there was a lengthy silence from the plaintiff and little indication that she was even actively participating in the litigation. Id. at 524-25. The district" } ]

[ { "docid": "13683108", "title": "", "text": "Id. at 232-33, 115 S.Ct. at 826. Thus, the Supreme Court held that “routine breach of contract claims” are not preempted by the ADA. Id. Circuit courts applying the Supreme Court’s decisions in Morales and Wolens have given the ADA’s preemption provision a broad scope and, for the most part, have preempted state law tort actions where the subject matter of the action related to the price, route, or service of an airline. See. e.g., Travel All Over The World v. Saudi Arabia, 73 F.3d 1423 (7th Cir.1996); Harris v. American Airlines, Inc., 55 F.3d 1472 (9th Cir.1995); see also Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir.1995) (en banc) (“Laws of general applicability, even those consistent with federal law, are preempted if they have the ‘forbidden significant effect’ on rates, routes or services.”). In Harris, the Ninth Circuit held that the plaintiffs claim under the Oregon Public Accommodations Act was preempted by the ADA because the subject matter of the plaintiffs claims related to “service,” as follows: Harris seeks to apply Oregon state law ... to the in-flight service procedures of American Airlines. In Wolens, the Supreme Court held that the passengers’ claims under the Illinois Consumer Fraud Act served as a means to guide and police the marketing practices of the airlines. In this case, Harris seeks to subject the airlines’ in-flight service to its passengers to Oregon state tort law. Harris, 55 F.3d at 1477. The court continued: “The Court in Wolens only excluded private contract terms from the wide scope of preemption, and Harris’ claims do not come within this exclusion. Her claims are preempted by section 1305(a)(1).” Id. Similarly, in Travel All Over The World, the Seventh Circuit acknowledged that for preemption purposes, “the proper examination is ... whether the claims at issue either expressly refer to the airline’s [prices, routes, or] services ... or would have a significant economic effect on the airline’s services.” 73 F.3d at 1434. In Travel All Over The World, where the plaintiffs brought both a tort claim and a contract claim, the Seventh Circuit recognized that" } ]

[ { "docid": "6244516", "title": "", "text": "air transportation under this subpart. 49 U.S.C. § 41713(b)(1). Our Circuit has in recent years twice applied that provision to preempt claims brought by skycaps arising out of airlines’ introduction of fees for curbside check-in services. First, in DiFiore v. American Airlines, Inc., which was decided in 2011, we held that the ADA preempted skycaps’ claims that American’s per-bag fees violated the Massachusetts Tips Law. 646 F.3d at 87-90. In so holding, we explained that the airline’s “conduct in arranging for transportation of bags at curbside into the airline terminal en route to the loading facilities is itself a part of the ‘service’ referred to in the federal statute, and the airline’s ‘price’ includes charges for such ancillary services as well as the flight itself.” Id. at 87. We thus concluded that, as applied in the case, the Tips Law “directly regulates how an airline service is performed and how its price is displayed to customers,” which was precisely what the ADA sought to avoid. Id. at 88. Two years later, we resolved the further question of whether the same result follows for certain common law claims that targeted the same $2.00 charge. In that case, Brown v. United Airlines, Inc., a separate set of skycaps had brought common law claims for unjust enrichment and tortious interference arising out of two airlines’ imposition of $2.00 baggage fees for curbside service. 720 F.3d at 62. We held that the ADA preempted these common law claims. We explained in Brown that DiFiore “conclusively resolves” in the airlines’ favor the “linkage” issue — i.e., the issue of whether laws regulating the imposition of baggage-handling fees “relatef ] to a price, route, or service of an air carrier” within the meaning of the ADA preemption clause. Id. at 64. We further concluded that the common law, “no less than positive law,” constitutes a “provision having the force and effect of law” within the meaning of that same clause. Id. at 64-65; see 49 U.S.C. § 41713(b)(1) (“Except as provided in this subsection, a State, political subdivision of a State, or political authority of at" }, { "docid": "6244517", "title": "", "text": "question of whether the same result follows for certain common law claims that targeted the same $2.00 charge. In that case, Brown v. United Airlines, Inc., a separate set of skycaps had brought common law claims for unjust enrichment and tortious interference arising out of two airlines’ imposition of $2.00 baggage fees for curbside service. 720 F.3d at 62. We held that the ADA preempted these common law claims. We explained in Brown that DiFiore “conclusively resolves” in the airlines’ favor the “linkage” issue — i.e., the issue of whether laws regulating the imposition of baggage-handling fees “relatef ] to a price, route, or service of an air carrier” within the meaning of the ADA preemption clause. Id. at 64. We further concluded that the common law, “no less than positive law,” constitutes a “provision having the force and effect of law” within the meaning of that same clause. Id. at 64-65; see 49 U.S.C. § 41713(b)(1) (“Except as provided in this subsection, a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.” (emphasis added)). And, finally, we held that the skycaps’ claims did not fit within the so-called “Wolens exception” to preemption under the ADA. Brown, 720 F.3d at 70-71. That exception comes from the Supreme Court’s decision in American Airlines, Inc. v. Wolens. There, the Supreme Court held that the ADA did not preempt breach of contract claims arising out of an airline’s frequent flyer program because those claims had sought remedies for violations of self-imposed, not state-imposed, obligations. See 513 U.S. at 228-33, 115 S.Ct. 817. The plaintiffs in the present case argue that, notwithstanding DiFiore and Brown, their claims' — which are for violations of the Massachusetts Tips Law (like in DiF-iore) and tortious interference and unjust enrichment (like in Brown) — are not preempted. They rely on intervening precedents to explain why neither" }, { "docid": "18190455", "title": "", "text": "events of September 11, 2001. Although defendants raise emotionally compelling concerns about the potential of state tort liability to chill airline participation in security studies, they fail to establish how a claim for trespass to property that pertains to the dissemination of plaintiffs’ information directly relates to airline rates or routes. In pointing to the potential economic and safety benefits of a successful security study, the connection that plaintiffs suggest to rates and routes is attenuated at best. The Second Circuit has held that indirect effects on an airline’s competitive position do not meet the test for preemption of state law claims. See Abdu-Brisson, 128 F.3d at 84 (indirect effects of state law claims on an airline’s competitive position do not warrant preemption). Here, it is nothing more than conjecture that the security study could actually have an effect on the integrity of routes or result in any reduction of Jet-Blue’s rates. Accordingly, the impact of plaintiffs’ claim on JetBlue’s rates and routes is “too tenuous, remote or peripheral ... to have pre-emptive effect.” See Morales, 504 U.S. at 390, 112 S.Ct. 2031 (citation and internal quotation marks omitted). Defendants’ argument based on airline services also fails the Rombom, test. Rombom, 867 F.Supp. at 221. With regard to the first prong of that test, whether the activity at issue is an airline service, defendants claim that the assembly and use of passenger information supplied during the purchase of air transportation constitutes an integral part of an airline’s services. (JetBlue Reply Mem. at 16.) Defendants further claim that compiling the data into a PNR for the airline’s use relates to services because the PNR reflects the airline’s copy of the passenger’s travel arrangements and enables the airline to determine flight capacity and schedules and to define routes. (Id. at 16-17.) The problem with this argument is that plaintiffs’ trespass to property claim concerns the unauthorized disclosure of PNR data to a third party which has no role in determining flight capacity, schedules, or routes. Moreover, the disclosure of this information is not alleged to have any relation to JetBlue’s manipulation or" }, { "docid": "17060376", "title": "", "text": "is apparent that All World’s claims involving the Debit Memos do not refer to price, instead, they refer to American’s imposition of fees and penalties, on travel agents who had been given a mandate to issue post-September 11th passenger refunds. Nor do the Debit Memos “relate” to American’s prices, as that term is interpreted by the Ninth Circuit. The Ninth Circuit has concluded that Congress intended to preempt “only state laws and lawsuits that would adversely affect the economic deregulation of the airlines and the forces of competition within the airline industry.” Charas v. Trans World Airlines, Inc., 160 F.3d 1259, 1261 (9th Cir.1998). Applying the Ninth Circuit’s rea soning in Charas, All World’s claims do not fall within the scope of ADA preemption because allowing All World to pursue these claims (whether Part II of the breach of contract claim, the unjust enrichment claim, or the claims for declaratory and injunctive relief), will not have any effect on the economic deregulation and the forces of competition within the industry. Instead, only American’s treatment of travel agents will be affected. American argues that case law shows that an airline’s ticket refund or ticket reissuance policy directly impacts prices, citing Statland v. American Airlines, Inc., 998 F.2d 589 (7th Cir.1993)(holding that passenger’s state law claims are preempted because canceled ticket refunds relate to rates), Howell v. Alaska Airlines, 99 Wash.App. 646, 994 P.2d 901 (2000) (holding that passenger’s state law claim contesting Alaska Airlines’ refusal to refund the price of a non-refundable ticket is preempted), Blackner v. Continental Airlines, 311 N.J.Super. 10, 709 A.2d 258 (1998)(holding that passenger’s state law claims arising from a $60 surcharge to replace a lost ticket are preempted), and Leonard v. Northwest Airlines, 605 N.W.2d 425 (Minn.Ct.App.2000) (holding that passenger’s state law claims to recover reissuance fees charged for tickets are preempted). These cases are all distinguishable from the case at hand because they all involve passengers’ attempts to contest airlines’ ticket refund or reissuance policies. By contrast, the claims here do not arise out of ticket refunds, but out of American’s treatment of the manner" }, { "docid": "17060378", "title": "", "text": "in which the refund, which allegedly had to be paid, was processed by travel service agents. The distinction is substantial because while the former is a consideration when an air carrier sets it prices, the latter only has a remote relationship to prices, especially since the passenger refund had already been paid. This is not to say that state law claims brought by travel agents may never be preempted by the ADA. They may. See, e.g. Lyn-Lea Travel Corp. v. Am. Airlines, Inc., 283 F.3d 282 (5th Cir.2002)(holding that travel agency’s state law claim for intentional interference with business relationships, based on the airline’s luring the customers away from the travel agency with discounted fares, was preempted because the travel agency sought to apply state law in a way that would regulate American’s pricing policies). However, in the Ninth Circuit such claims must still satisfy the standard of Charas, the claims must adversely impact economic deregulation of the airlines and the forces of competition within the airline industry in order to be preempted by the ADA. Charas, 160 F.3d at 1261. Such an impact is not deducible here. Allowing All World to proceed with its claims against American will not have the effect of regulating American’s pricing policies, commission structure or reservation practices. The only aspect of American’s business undertakings that is addressed by All World’s claims is American’s alleged scheme to recoup its refund losses in part by charging All World with Debit Memos. In sum, none of All World’s state law claims relate to American’s prices. ii. Services We now turn to consider whether All World’s state claims relate to services. The Ninth Circuit definitively decided what Congress intended by the word “service” in Charas, stating: Congress used the word “service” in the phrase “rates, routes, or service” in the ADA’s preemption clause to refer to the prices, schedules, origins and destinations of the point-to-point transportation of passengers, cargo or mail ... [Service ... refers to such things as the frequency and scheduling of transportation, and to the selection of markets to or from which transportation is provided" }, { "docid": "18190460", "title": "", "text": "Trading Post, Inc. v. United Parcel Service of America, Inc., 972 F.Supp. 665 (N.D.Ga.1997) (plaintiff alleged defendant inappropriately ■ based prices on the dimensional weight of packages rather than the actual weight). But the nature of the claims at issue in those cases had quite a different relation to airline rates, routes, and services than the unjust enrichment claim in this case. Unjust enrichment claims premised on the imposition of fees or collection of taxes quite obviously relate to airline rates. In this case, the unjust enrichment claim, like the trespass to property claim, seeks to remedy conduct without any cognizable relation to JetBlue’s rates, routes, or services. Accordingly, it is not preempted by the ADA. B. Implied Preemption Because the information at issue in this case was turned over for a security study at the behest of a federal agency, defendants argue that plaintiffs’ claims are impliedly preempted by the federal government’s pervasive occupation of the field of aviation security. Field preemption occurs “if federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (citations and quotation marks omitted). Although in this case the state laws at issue are not specific to aviation security, and therefore in a strict sense do not fall within that field, the Supreme Court has recognized that field preemption analysis may be understood as a species of conflict preemption, which exists where a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” English v. General Elec. Co., 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 (1990) (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941)). Thus, to the extent that plaintiffs’ state law claims would have the effect of undermining federal efforts in the field, field preemption analysis is properly implicated. “As is always the case in preemption analysis, Congressional intent is the ‘ultimate touchstone.’" }, { "docid": "18190445", "title": "", "text": "by knowingly and surreptitiously conspiring to obtain and by obtaining, maintaining, and manipulating class members’ personal data that was received in direct violation of JetBlue’s privacy policy. (Am.Compl.1ffl 93-94.) This claim fits squarely within the range of state law actions that the Supreme Court concluded, in Wolens and Morales, are expressly preempted by the ADA, because it represents a direct effort to regulate the manner in which JetBlue communicates with its customers in connection with reservations and ticket sales, both of which are services provided by the airline to its customers. See In re Northwest, 2004 WL 1278459, at *4 (privacy policy-related claims under the Minnesota Deceptive Trade Practices Act “at least relate to Northwest’s services”); Copeland, No. 04-2156 Ml/v, at 8 (claims against Northwest under the Tennessee Consumer Protection Act concerning disclosure of passengers’ personal information are expressly preempted by the ADA); Travel All Over The World, 73 F.3d at 1434 (airline “services” include ticketing as well as the transportation itself); Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir.1995) (en banc) (ticketing is an element of the air carrier service bargain that Congress intended to deregulate and broadly protect from state regulation). Where a state law claim is said to relate to an airline service, courts in this and other circuits apply a tripartite test for preemption set forth in Rombom v. United Air Lines, Inc., 867 F.Supp. 214 (S.D.N.Y.1994) (Sotomayor, D.J.). See Donkor v. British Airways, Corp., 62 F.Supp.2d 963, 972 n. 5 (E.D.N.Y.1999) (collecting federal district court and appellate cases that cite the Rombom test). First, a court must determine “whether the activity at issue in the claim is an airline service.” Rombom, 867 F.Supp. 214 at 221. Second, “[i]f the activity impli cates a service, the court must then determine whether the claim affects the airline service directly or tenuously, remotely, or peripherally.” Id. at 222. If the effect is only incidental, the state law claim is not preempted. Id. Where the activity in question directly implicates a service, the court should proceed to the third prong of the preemption inquiry, “whether the" }, { "docid": "17060398", "title": "", "text": "preempts All World’s federal RICO claims. See Part 11(D)(1), infra. . The claims clearly do not relate to airline routes, the third type of claim preempted by 49 U.S.C. § 41713(b)(1). . Many courts have demonstrated a reluctance to preempt state law claims that do not undermine the overall purpose or goal of a federal law. See Morales v. TWA, 504 U.S. 374, 390, 112 S.Ct. 2031, 2040, 119 L.Ed.2d 157 (1992) (declining to impose a blanket ban on any state law claim against airlines, stating that \" ‘[s]ome state actions may affect [airline prices] in too tenuous, remote, or peripheral a manner’ to have pre-emptive effect”), American Airlines v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 ( 1995)(holding that state law claims for breach of contract are not preempted by the ADA because holding airlines to the terms of a contract they entered into freely would not have an adverse effect on competition in the airline industry), In re Air Transportation Excise Tax Litigation, 37 F.Supp.2d 1133, 1140 (D.Minn.1999)(find-ing that contract and tort claims, including unjust enrichment, were not preempted because they did not \"affirmatively prescribe (or proscribe) the airlines’ conduct in a way that impedes competition or adversely impacts the economics of the airline industry”), Taj Mahal Travel v. Delta Airlines, 164 F.3d 186, 188, 195 (3rd Cir.1998)(holding that tort claims were not preempted because the application of state law in the circumstances did not frustrate Congressional intent nor impose a state utility-like regulation on the airlines), Travel All Over World v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1433 (7th Cir.1996) (holding that the contract, slander and defamation claims were not preempted because the contract claim fell within the Wolens exception and the slander and defamation claims did not have a significant effect on airline rates, routes, or services). . American contends that its alleged conduct is only allegedly wrongful by virtue of All World's state law claims, that those claims are preempted by the ADA, and that to allow RICO claims to include these preempted claims within its scope would undermine the ADA’s" }, { "docid": "18190458", "title": "", "text": "whether the basis of a cause of action asserted by a plaintiff, without reference to the answer or any affirmative defense, relates to rates, routes, or services of an air carrier). Accordingly, as understandable as defendants’ motivations may have been, it is not relevant for purposes of express preemption analysis that defendants disclosed the PNR data in response to changed market conditions and security concerns occasioned by the events of September 11, 2001. c. Unjust Enrichment Plaintiffs allege that all defendants in this case were unjustly enriched by the disclosure of confidential information concerning JetBlue passengers. (Pl.’s Mem. at 60.) Specifically, they claim that Jet-Blue received remuneration from Torch or another party in exchange for disclosing PNR data, and that the other defendants profited as contractors or subcontractors on the Department of Defense study as a result of JetBlue’s contribution of the data. (Id. at 60-61; Am. Compl. ¶¶ 107-108.) Defendants make the very same preemption argument in connection with this claim as they make in connection with the trespass to property claim, that a successful military base security study could affect routes by improving the safety of commercial air travel and rates by transferring the cost of certain security improvements to the federal government. Few federal courts have considered the preemptive effect of the ADA clause on claims for unjust enrichment. Of those that have, most found that the claims at issue directly related to air carrier rates or services and held those claims preempted. See, e.g., Lehman v. USAIR Group, Inc., 930 F.Supp. 912, 915-16 (S.D.N.Y.1996) (claim expressly referred to the collection of air transportation excise tax, which relates to rates because it directly impacts the ticket price); All World Professional Travel Services, Inc. v. American Airlines, Inc., 282 F.Supp.2d 1161 (C.D.Cal.2003) (claim premised on airline’s imposition of a fee for processing refunds for tickets that could not be used in the days immediately following September 11, 2001); Dugan v. FedEx Corp., 2002 WL 31305208 (C.D.Cal. Sept. 27, 2002) (claim challenged air carrier’s contractual limitation of liability for damage to contents of packages that occurred during shipment); Deerskin" }, { "docid": "18190448", "title": "", "text": "for use in a military base security study, plaintiffs misconstrue the issue. (See Pl.’s Mem. at 32-33.) The second prong is also met, as an attempt to regulate the representations and commitments that JetBlue makes in connection with reservations and ticket sales directly affects the airline’s provision of those services. Finally, the third prong is satisfied because the communication of company policy concerning data collection and disclosure is reasonably necessary to the facilitation of reservations and ticket sales. In this regard, it is important to note that although the unauthorized disclosure of plaintiffs’ personal information is at issue in this § 349 claim, the principal focus of the claim is the allegedly deceptive steps taken to obtain that information. Thus, the complained-of conduct did occur in the course of the provision of the service of reservations and ticket sales, and as stated, the communication of company policy with respect to collection and use of data obtained in the course of that service is reasonably related to the provision of the service. Because the Court finds that this claim is preempted based on its relation to JetBlue’s services, the Court need not address the argument that it is also preempted by virtue of its relation to JetBlue’s rates and routes. 2. Common Law Claims In addition to the state statutory claims, plaintiffs bring a claim for breach of contract against JetBlue and claims for trespass to property and unjust enrichment against all defendants. As set forth below, none of these claims is preempted. The breach of contract claim falls within the exception carved out in Wolens for the enforcement of self-imposed contractual undertakings. Neither of the tort claims relates to JetBlue’s rates, routes, or services in the same way that the state statutory claim does. a. Breach of Contract The basis for plaintiffs’ breach of contract claim is the allegation that JetBlue’s published privacy policy constitutes a self-imposed contractual obligation by and between the airline and the consumers with whom it transacted business, including plaintiffs and the members of the class. (Am.CompU 88.) Plaintiffs further allege that JetBlue breached this contract" }, { "docid": "22218141", "title": "", "text": "certainly do not refer to Saudia’s rates, routes, or services — in fact, these statements do not refer to Saudia at aU. Moreover, the statements themselves are not “services” provided by Saudia within the meaning of the ADA We adopt the foUowing Fifth Circuit definition of “services”: “Services” generally represent a bargained-for or anticipated provision of labor from one party to another.... [This] leads to a concern with the contractual arrangement between the airiine and the user of the service. Elements of the air carrier service bargain include items such as ticketing, boarding procedures, provision of food and drink, and baggage handling, in addition to the transportation itself. Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir.1995) (en banc). Certainly, Sau-dia’s false statements regarding Travel All’s services were not part of any contractual arrangement that Saudia had with Travel AU or its clients. Thus, the slander and defamation claims do not expressly refer to airline rates, routes, or services. In addition, these claims do not have the “forbidden significant [economic] effect” on airline rates, routes, or services, as contemplated by Morales. It is difficult for us to envision how aUowing tort claims based on an airUne’s knowingly false statements about a travel agency would have even a “tenuous, remote or peripheral” economic effect on the rates, routes, or services that the airiine offers. Despite Saudia’s contention to the contrary, the plaintiffs’ claims are simply not analogous to claims that we have previously held preempted by the ADA See Statland v. American Airlines, Inc., 998 F.2d 539, 542 (7th Cir.1993) (finding claims based on airline’s withholding portion of federal tax on canceled tickets related to rates), cert. denied, — U.S. -, 114 S.Ct. 603, 126 L.Ed.2d 568 (1993); Illinois Corp. Travel, 889 F.2d at 754 (finding claims based on airUne’s refusal to permit travel agency to advertise discounted prices related to rates). We conclude that the plaintiffs’ claims of slander and defamation are not “related to” Saudia’s rates, routes, or services, and are therefore not preempted by § 1305(a)(1) of the ADA. 3. The Other Intentional Tort Claims The" }, { "docid": "18190444", "title": "", "text": "ERISA preemption provision and drew analogies to the ADA provision based on similar language. Id. “Related to,” the Circuit held, “appears to be developing, to some degree, to mean whether state law actually ‘interferes’ with the purposes of the feder al statute, in this case airline deregulation.” Id. (citing Travelers Ins. Co., 514 U.S. at 655, 115 S.Ct. 1671). For a claim to be preempted, however, the underlying state law need not expressly refer to air carrier rates, routes or services. Rather, as established by Wolens and Morales, a claim is preempted if application of the state rule of decision would have a significant economic effect upon airline rates, routes, or services. United Airlines, Inc. v. Mesa Airlines, Inc., 219 F.3d 605, 609 (7th Cir.2000) (Easterbrook, J.); Travel All Over The World, 73 F.3d at 1432. 1. Neiv York General Business Law and Other State Consumer Protection Statutes Plaintiffs claim that, in violation of the New York General Business Law and other consumer protection statutes, all defendants engaged in unfair or deceptive acts and practices by knowingly and surreptitiously conspiring to obtain and by obtaining, maintaining, and manipulating class members’ personal data that was received in direct violation of JetBlue’s privacy policy. (Am.Compl.1ffl 93-94.) This claim fits squarely within the range of state law actions that the Supreme Court concluded, in Wolens and Morales, are expressly preempted by the ADA, because it represents a direct effort to regulate the manner in which JetBlue communicates with its customers in connection with reservations and ticket sales, both of which are services provided by the airline to its customers. See In re Northwest, 2004 WL 1278459, at *4 (privacy policy-related claims under the Minnesota Deceptive Trade Practices Act “at least relate to Northwest’s services”); Copeland, No. 04-2156 Ml/v, at 8 (claims against Northwest under the Tennessee Consumer Protection Act concerning disclosure of passengers’ personal information are expressly preempted by the ADA); Travel All Over The World, 73 F.3d at 1434 (airline “services” include ticketing as well as the transportation itself); Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir.1995) (en banc)" }, { "docid": "18190459", "title": "", "text": "successful military base security study could affect routes by improving the safety of commercial air travel and rates by transferring the cost of certain security improvements to the federal government. Few federal courts have considered the preemptive effect of the ADA clause on claims for unjust enrichment. Of those that have, most found that the claims at issue directly related to air carrier rates or services and held those claims preempted. See, e.g., Lehman v. USAIR Group, Inc., 930 F.Supp. 912, 915-16 (S.D.N.Y.1996) (claim expressly referred to the collection of air transportation excise tax, which relates to rates because it directly impacts the ticket price); All World Professional Travel Services, Inc. v. American Airlines, Inc., 282 F.Supp.2d 1161 (C.D.Cal.2003) (claim premised on airline’s imposition of a fee for processing refunds for tickets that could not be used in the days immediately following September 11, 2001); Dugan v. FedEx Corp., 2002 WL 31305208 (C.D.Cal. Sept. 27, 2002) (claim challenged air carrier’s contractual limitation of liability for damage to contents of packages that occurred during shipment); Deerskin Trading Post, Inc. v. United Parcel Service of America, Inc., 972 F.Supp. 665 (N.D.Ga.1997) (plaintiff alleged defendant inappropriately ■ based prices on the dimensional weight of packages rather than the actual weight). But the nature of the claims at issue in those cases had quite a different relation to airline rates, routes, and services than the unjust enrichment claim in this case. Unjust enrichment claims premised on the imposition of fees or collection of taxes quite obviously relate to airline rates. In this case, the unjust enrichment claim, like the trespass to property claim, seeks to remedy conduct without any cognizable relation to JetBlue’s rates, routes, or services. Accordingly, it is not preempted by the ADA. B. Implied Preemption Because the information at issue in this case was turned over for a security study at the behest of a federal agency, defendants argue that plaintiffs’ claims are impliedly preempted by the federal government’s pervasive occupation of the field of aviation security. Field preemption occurs “if federal law so thoroughly occupies a legislative field as to" }, { "docid": "18190457", "title": "", "text": "use of the data to determine flight capacity, schedules, or routes. Thus, to the extent that use of PNR data for these purposes constitutes an airline service within the meaning of the ADA, the trespass to property claim at issue in this case does not implicate that service. As defendants have not proffered any other basis upon which the Court might conclude that the trespass to property claim implicates a service, they have not met their burden of establishing that the claim is preempted by the ADA. As a final matter, the Court notes that defendants’ proffered justification for the dissemination of plaintiffs’ data is not the proper focus of preemption analysis under the ADA clause. Preemption analysis is based on the nature of the state law claim asserted by a plaintiff and its relation, if any, to airline rates, routes, and services, not the answer or affirmative defense asserted by the defendant. See Parise v. Delta Airlines, Inc., 141 F.3d 1463, 1466 n. 3 (11th Cir.1998) (the only question relevant to preemption analysis is whether the basis of a cause of action asserted by a plaintiff, without reference to the answer or any affirmative defense, relates to rates, routes, or services of an air carrier). Accordingly, as understandable as defendants’ motivations may have been, it is not relevant for purposes of express preemption analysis that defendants disclosed the PNR data in response to changed market conditions and security concerns occasioned by the events of September 11, 2001. c. Unjust Enrichment Plaintiffs allege that all defendants in this case were unjustly enriched by the disclosure of confidential information concerning JetBlue passengers. (Pl.’s Mem. at 60.) Specifically, they claim that Jet-Blue received remuneration from Torch or another party in exchange for disclosing PNR data, and that the other defendants profited as contractors or subcontractors on the Department of Defense study as a result of JetBlue’s contribution of the data. (Id. at 60-61; Am. Compl. ¶¶ 107-108.) Defendants make the very same preemption argument in connection with this claim as they make in connection with the trespass to property claim, that a" }, { "docid": "2843426", "title": "", "text": "lecting agents ... [I]t appears that section 64.15(c) is intended merely to simplify the procedures for adjustment of minor errors in tax collection, and not to carve out sub silentio an exception to the orderly structure of tax litigation by allomng persons seeking to litigate major and disputed questions of tax law to bypass the normal refund procedure. 428 F.Supp. at 1304-1305 (emphasis added). As Judge Weinfeld held, § 6415(c) does not create a private cause of action. Moreover, § 6415(c) at most allows a claim for mathematical and technical errors, not for the general interpretation of a class of claims, such as the claims presented in this case. Section 6415(c) cannot be used as an end run around the explicit provisions of § 7422. Therefore, the plaintiffs’ claims pursuant to § 6415(c) must be dismissed. IV. The second issue is whether the plaintiffs’ state law claims of conversion and unjust enrichment are preempted by federal law. First, the plaintiffs’ claims are explicitly pre-empted by 49 U.S.C. § 41713(b)(1). Section 41713(b)(1) provides: a State ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to price, route or service of an air carrier- The conversion and unjust enrichment claims relate to the defendants’ ticket prices within the meaning of this section. Both claims expressly refer to the collection of the air transportation excise tax. The excise tax “relates to price” because the ten per cent excise tax directly impacts the ticket price. See Statland v. American Airlines, Inc., 998 F.2d 539, 542 (7th Cir.), cert denied, 510 U.S. 1012, 114 S.Ct. 603, 126 L.Ed.2d 568 (1993) (challenged practice of withholding ten per cent of federal tax on canceled tickets relates to rates). This Court agrees with both Judge Zagel and Judge Sanders who concluded that the similar claims of plaintiffs in the cases before them were pre-empted by federal law based on the analysis in Statland regarding relation to price. Further, this Court also concludes that § 7422(f) explicitly pre-empts the plaintiffs’ state law claims. Section 7422 provides that the" }, { "docid": "2843427", "title": "", "text": "may not enact or enforce a law, regulation, or other provision having the force and effect of law related to price, route or service of an air carrier- The conversion and unjust enrichment claims relate to the defendants’ ticket prices within the meaning of this section. Both claims expressly refer to the collection of the air transportation excise tax. The excise tax “relates to price” because the ten per cent excise tax directly impacts the ticket price. See Statland v. American Airlines, Inc., 998 F.2d 539, 542 (7th Cir.), cert denied, 510 U.S. 1012, 114 S.Ct. 603, 126 L.Ed.2d 568 (1993) (challenged practice of withholding ten per cent of federal tax on canceled tickets relates to rates). This Court agrees with both Judge Zagel and Judge Sanders who concluded that the similar claims of plaintiffs in the cases before them were pre-empted by federal law based on the analysis in Statland regarding relation to price. Further, this Court also concludes that § 7422(f) explicitly pre-empts the plaintiffs’ state law claims. Section 7422 provides that the exclusive remedy for a tax refund is an action against the United States. See Burda v. M. Ecker Co., 954 F.2d 434, 439 (7th Cir.1992). “A suit or proceeding referred to in subsection (a) may be maintained only against the United States_” 26 U.S.C. § 7422. Plaintiffs’ claims may be brought only against the proper party, the United States of America. The state law claims against the airlines are expressly pre-empted by § 7422 which prohibits such suits for disguised refunds of the taxes. V. Conclusion For the reasons stated above, the motion to dismiss by defendants, USAJR, Inc. and USAIR Group, Inc., and the motion for judgment on the pleadings by defendant, Continental Airlines, Inc., are granted. The Clerk is directed to enter judgment dismissing these cases. SO ORDERED. . 26 U.S.C. 6415(c) states: In case any person required ... to collect any [transportation or communications excise] tax shall make an overcollection of such tax, such person shall, upon proper application, refund such overcollection to the person entitled thereto. . The remedy for the" }, { "docid": "17060367", "title": "", "text": "that passengers were entitled to refunds, All World’s Complaint alleges that shortly after the events of September 11th, the DOT issued a directive to air carriers prohibiting them from applying non-refunda-bility provisions for tickets that were unusable as a result of the September 11, 2001, tragedies. As there is no relationship between § 253.7 and American’s imposition of penalties on travel agents for supposed improper processing of refunds, The Court concludes that American’s travel agent penalties imposed on All World are not, as American claims, expressly permissible under federal law. C. PREEMPTION OF STATE CLAIMS UNDER THE AIRLINE DEREGULATION ACT (“ADA”) American claims that all of the state claims asserted by All World are preempted by the Airline Deregulation Act (“ADA”), Pub.L.No. 95-504, § 10592 Stat. 1708. 1. The ADA And Preemption Under the ADA In 1978, Congress enacted the ADA, thereby amending the Federal Aviation Act of 1958, in order to “encourage, develop and attain an air transportation system which relies on competitive market forces to determine the quality, variety and price of air services.” H.R. Conf. Rep. No. 95-1779, p. 53 (1978), U.S.Code.Cong. & Admin. News 1978, 373, cited in Morales v. Trans World Airlines, Inc., 504 U.S. 374, 421, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992)(Stevens, J. dissenting). To prevent States from undoing federal deregulation, the ADA includes the following preemption clause: “[A] State ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to rates, routes, or services of an air carrier that may provide air transportation under this subpart.” 49 U.S.CApp. § 1305(a). In 1994, Congress recodified § 1305(a), now found at 49 U.S.C. § 41713(b)(1). As part of the reco-dification, the phrase “rates, routes, or services” became “price, route, or service.” 49 U.S.C. § 41713(b)(1). In drafting the ADA, Congress retained the savings clause that was present in the 1958 Federal Aviation Act, which reads: “Nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are" }, { "docid": "11740434", "title": "", "text": "section 14501. Huntington Operating Corp v. Sybonney Express, Inc., No. H-08-781, 2009 WL 2423860, at *1, 2009 U.S. Dist. LEXIS 67561, at *1 (S.D. Tex. Aug. 3 2009). Plaintiff argues that the Huntington court’s consideration of preemption under § 14501 is irrelevant because the section is titled “Federal authority over intrastate transportation,” and this case is not about intrastate transportation issues. The court determines, however, that section 14501, titled, “Title 49 Transportation, Subtitle IV. Interstate Transportation,” applies to both interstate and intrastate transportation and specifically mentions each in its language. The Huntington court, in support of finding preemption of all state law claims except that of breach of contract, further explains that section 14501 closely parallels the Airline Deregulation Act of 1978 (“ADA”), 49 U.S.C. § 41713(b)(4)(A) and 49 U.S.C. § 41713(b)(4)(B)(I). Id. Courts have interpreted the preemptive scope of 49 U.S.C. § 14501(c) in accordance with case law addressing the ADA. Id. at *2-3, 2009 U.S. Dist. LEXIS 67561 at *7 (collecting cases). This circuit has held that the ADA broadly preempts all state law claims except those for breach of contract. Lyn-Lea Travel Corp. v. American Airlines, 283 F.3d 282, 287 (5th Cir.2002); see Sam L. Majors Jewelers, 117 F.3d at 931 (holding that claims for violation of TDTPA against an air carrier for loss of packages was preempted by the ADA). The Supreme Court held that the phrase “relating to rates, routes, or services” in the ADA was “deliberately expansive” and preempted any “[s]tate enforcement action having a connection with or reference to airline ‘rates, routes, or services.’ ” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). The ADA does not preempt “state-law-based court adjudication of routine breach-of-contract claims” as long as there is “no enlargement or enhancement [of the contract] based on state laws or policies external to the agreement.” American Airlines, Inc. v. Wolens, 513 U.S. 219, 232-233, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995). The terms and conditions between airlines and passengers are privately ordered obligations and therefore “do not amount to a State’s ‘enactment" }, { "docid": "17060368", "title": "", "text": "services.” H.R. Conf. Rep. No. 95-1779, p. 53 (1978), U.S.Code.Cong. & Admin. News 1978, 373, cited in Morales v. Trans World Airlines, Inc., 504 U.S. 374, 421, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992)(Stevens, J. dissenting). To prevent States from undoing federal deregulation, the ADA includes the following preemption clause: “[A] State ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to rates, routes, or services of an air carrier that may provide air transportation under this subpart.” 49 U.S.CApp. § 1305(a). In 1994, Congress recodified § 1305(a), now found at 49 U.S.C. § 41713(b)(1). As part of the reco-dification, the phrase “rates, routes, or services” became “price, route, or service.” 49 U.S.C. § 41713(b)(1). In drafting the ADA, Congress retained the savings clause that was present in the 1958 Federal Aviation Act, which reads: “Nothing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.” 49 U.S.C.App. § 1506, modified and recodi-fied as 49 U.S.C. § 40120(c)(“A remedy under this part is in addition to any other remedies provided by law”). The savings clause protects the ability of states to control non-economic matters concerning airlines within their borders. Chrissafis v. Continental Airlines, Inc., 940 F.Supp. 1292, 1297 (N.D.Ill.1996), citing Hodges v. Delta Airlines, Inc. 44 F.3d 334, 337 (5th Cir.1995) and Morales, supra, 504 U.S. at 425, 112 S.Ct. 2031 (Stevens, J. dissent-ingXexplaining that the preemption clause “represents simply a codification of existing law and leaves unimpaired the states’ authority over intrastate matters,” quoting Hearings on H.R. 8813 before the Subcommittee on Aviation of the House Committee on Public Works and Transportation, 95th Cong., 1st Sess. 200 (1977)). 2. Whether All World’s State Law Claims are Preempted by the ADA All World brings three state law claims breach of contract, unjust enrichment, and a claim for declaratory and injunctive relief. American maintains that the ADA preempts all of All World’s state law claims. “[F]or a" }, { "docid": "17060373", "title": "", "text": "ADA preemption under the first prong of the preemption test. ii. The Unjust Enrichment Claim and Claim for Declaratory and Injunc-tive Relief All World brings a claim for unjust enrichment, alleging that American has been unjustly enriched by its scheme to collect fees from All World. All World also brings a claim for declaratory and injunc-tive relief. Courts have held that unlike contractual duties which are self-imposed, the elements for unjust enrichment and injunc-tive relief are defined by state law. See Lehman v. USAIR Group, Inc., 930 F.Supp. 912, 915 (S.D.N.Y.1996)(finding that state law claim of unjust enrichment comes under the scope of 49 U.S.C. § 41713(b)(1)), Deerskin Trading Post, Inc. v. United Parcel Serv., 972 F.Supp. 665, 673 (N.D.Ga.1997)(finding claim for injunctive relief preempted by Federal Aviation Administration Authorization Act, whose preemption provisions are applied in an identical manner as the preemption provision of the ADA, see id. at 668), because awarding injunctive relief would remove a contract claim from the realm of routine breach of contract actions, and would enhance the parties’ bargain based on state policy. Following the reasoning of Deerskin, All World’s claim for declaratory relief also goes beyond the parties’ bargain. All World’s claim for declaratory relief would impermissibly enhance the bargain based on state policy. Wolens, supra, 513 U.S. at 232, 115 S.Ct. 817 (finding that breach-of-contract actions are not preempted by the ADA, but that courts are confined “in breach-of-contract actions, to the parties’ bargain, with no enlargement or enhancement based on state laws or policies external to the agreement”). The Court concludes that the unjust enrichment, injunctive relief and declaratory relief claims do involve the enforcement of state law. Having determined that Part II of All World’s breach of contract claim, the unjust enrichment claim, and the claims for declaratory and injunctive relief all derive from the enforcement of state law, the court must now decide whether these claims relate to airline prices or services. b. Relationship to Price and/or Services i. Price A claim relates to airline prices if the claim expressly refers to price or has a significant economic effect" } ]

[ { "docid": "10193037", "title": "", "text": "the plan if they knew about them, creditors lack standing to challenge provisions of a plan that do not affect them. Fed.R.Bankr.Proc. 3020(b); In re B. Cohen & Sons Caterers, Inc., 124 B.R. 642 (Bankr.E.D.Pa.1991), appeal dismissed, 908 F.2d 963 (3d Cir.1990). CONFIRMATION 10. Section 1129 establishes the requirements for confirmation. This court follows the majority view that proponents of plans must prove the requirements of 1129(a) by a preponderance of the evidence. E.g. In re MCorp Financial, 137 B.R. 219, 225 (Bankr.S.D.Tex.1992), appeal dismissed, 139 B.R. 820 (S.D.Tex.1992); Home Savings Ass’n v. Woodstock Assocs. I, Inc. (In re Woodstock Assocs. I, Inc.), 120 B.R. 436, 453 (Bankr.N.D.Ill.1990); but see In re Briscoe Enterprises Ltd., II, 138 B.R. 795, 804-05 (Bankr.N.D.Tex.1992) (discussing case law and indicating that appropriate standard is clear and convincing evidence). 11. Courts have held that under section 1129(b), the cramdown provision, the burden is clear and convincing evidence. Briscoe, 138 B.R. at 804; MCorp, 137 B.R. at 225. 12. The court has a mandatory, independent duty to review plans and ensure they comply with the requirements of section 1129, Williams v. Hibernia Nat’l Bank (In re Williams), 850 F.2d 250, 253 (5th Cir.1988), and the court must consider the plan in light of the facts and circumstances of the case. In re D & F Construction, 865 F.2d 673, 675 (5th Cir.1989). 13. After considering the plan in accordance with these requirements, the court concludes the plan should be confirmed. Compliance With Applicable Provisions of the Code, 11 US. C. sec. 1129(a)(1), (2) 14. The plan conforms to the applicable provisions of Chapter 11, and the plan proponent also has complied with the applicable provisions. 11 U.S.C. sec. 1129(a)(1), (2). Under sections 1129(a)(1) and (2), the court must review the Bankruptcy Code to ascertain if the Debtor and the proponents complied with other Bankruptcy Code provision. The provisions that generally are involved include estimation of claims under section 502, classification of claims under section 1122(a), unequal treatment of claims under section 1123(a)(1), and a showing of how the plan will be implemented under section 1123(a)(5). 15." } ]

[ { "docid": "3073719", "title": "", "text": "center before the start of the fall, 1989 bowling season. The loss of the letter of credit, the Debtors maintained, caused disruptions from which they never recovered. Eventually, the Debtors fell behind in their tax payments, so that by the time the chapter lVs were filed, the Debtors owed substantial sums to the Internal Revenue Service and the State of Michigan, mostly in withholding taxes, the Michigan Employment Security Commission for unemployment taxes, and to the local governments for property taxes. In addition, Trevarrow owed Brunswick Bowling & Billiards Corp. almost $1.5 million, a debt secured by substantially all of its assets, and over $900,000 in general unsecured debt. In a lengthy written opinion dated July 1, 1992, the Court denied Brunswick’s motion for relief from the stay, finding that because the assets secured by its liens were worth $1,102,800, but because tax liens of $38,958.95 primed Brunswick’s interest, Brunswick’s claim was bifurcated into a secured claim of $1,063,841.05 and an unsecured claim for the balance of $408,654.65. It also concluded that the property was necessary for an effective reorganization which was in prospect in the foreseeable future. Finally, two years and several amendments later, the Debtors filed plans which came on for confirmation over the objections of Brunswick, the Internal Revenue Service and the State of Michigan. The Debtors bore the burden of proving by a preponderance of the evidence that their respective plans satisfy the requirements for confirmation. In re Briscoe Enters., 994 F.2d 1160 (5th Cir.) cert. denied, — U.S. -, 114 S.Ct. 550, 126 L.Ed.2d 451 (1993); In re Monarch Beach Venture, Ltd., 166 B.R. 428 (C.D.Cal.1993); In re Cellular Information Systems, Inc., 171 B.R. 926 (Bankr.S.D.N.Y.1994); In re Zaleha, 162 B.R. 309 (Bankr.D.Idaho 1993); In re Washington Assocs., 147 B.R. 827 (E.D.N.Y.1992); In re Westwood Plaza Apts., 147 B.R. 692, 23 B.C.D. 420 (Bankr.E.D.Tex.1992); In re MCorp Financial, Inc., 137 B.R. 219, 26 C.B.C.2d 1805 (Bankr.S.D.Tex.1992); In re Atlanta Southern Business Park, Ltd., 173 B.R. 444, 26 B.C.D. 138 (Bankr.N.D.Ga.1994). Those requirements are set forth in 11 U.S.C. § 1129(a)(1) through (13). But compliance with" }, { "docid": "10280768", "title": "", "text": "characterization of the scope of the debtor’s burden of proof. Arnold and Baker maintain that the burden of proof is by a preponderance of the evidence while FmHA maintains that it is by clear and convincing evidence. Proof by the preponderance of the evidence means that it is sufficient to persuade the finder of fact that the proposition is more likely true than not. See, e.g., In re Winship, 397 U.S. 358, 371, 90 S.Ct. 1068, 1076, 25 L.Ed.2d 368 (1970). Clear and convincing evidence is a higher standard requiring a high probability of success. See, e.g., Colorado v. New Mexico, 467 U.S. 310, 316, 104 S.Ct. 2433, 2437-38, 81 L.Ed.2d 247 (1984). Some courts have applied the clear and convincing standard to plan confirmation. See, e.g., In re Briscoe Enters., Ltd., II, 138 B.R. 795, 804-05 (N.D.Tex.1992), rev’d, 994 F.2d 1160, 1163-65 (5th Cir.1993); In re Miami Ctr. Assoc’s., Ltd., 144 B.R. 937, 940 (Bankr.S.D.Fla.1992). Other courts have applied the preponderance of the evidence standard. See, e.g., Aetna Realty Investors v. Monarch Beach Venture, Ltd. (In re Monarch Beach Venture, Ltd.), 166 B.R. 428, 431-32 (C.D.Cal.1993); In re Woodstock Assoc’s I, Inc., 120 B.R. 436, 453 (Bankr.N.D.Ill.1990); Rusty Jones, 110 B.R. at 373. One court applied the preponderance of the evidence standard to the requirements under § 1129(a) and the clear and convincing standard under the cram down provisions of § 1129(b). In re MCorp Fin., Inc., 137 B.R. 219, 225 (Bankr.S.D.Tex.1992). We find the preponderance of the evidence to be the correct burden of proof in the context of plan confirmation. The Supreme Court recently applied the preponderance of the evidence standard to nondischargeability proceedings under § 523(a). Grogan v. Garner, 498 U.S. 279, 285 n. 11, 111 S.Ct. 654, 658 n. 11, 112 L.Ed.2d 755 (1991). Similarly, the Tenth Circuit applied the preponderance of the evidence standard to the general discharge under § 727. In re Serafini, 938 F.2d 1156, 1157 (10th Cir.1991). Despite this apparent trend, the district court in Briscoe did not apply the Grogan and Serafini standard to plan confirmation. Briscoe, 138 B.R. at" }, { "docid": "13665655", "title": "", "text": "Porter ”); Ferrari v. Barclays Business Credit, Inc. (In re Morse Tool, Inc.), 108 B.R. 389, 390-91 (Bankr.D.Mass.1989); Baird & Jackson, “Fraudulent Conveyance Law,” 38 Vand.L.Rev. at 832-33; Commissioner’s Notes to the UFCA, 7A U.L.A. 427-28. Evidentiary questions in a constructive fraudulent transfer case are decided by a preponderance of the evidence. Ossen v. Bernatovich (In the Matter of National Safe Northeast, Inc.), 76 B.R. 896, 901 (Bankr.D.Conn.1987); Talbot, Jr. v. Warner (In the Matter of Warner), 65 B.R. 512, 518-19 (Bankr.D.S.D.1986); Emerald Hills Country Club, Inc. v. Hollywood, Inc. (In the Matter of Emerald Hills Country Club, Inc.), 32 B.R. 408, 420 (Bankr.S.D.Fla.1983). Actual fraud in transfers and conveyances has traditionally been proven only by clear and convincing evidence. See Stratton v. Equitable Bank, N.A, 104 B.R. 713, 726 (D.Md.), aff'd, 912 F.2d 464 (4th Cir.1990); Coors of North Mississippi, Inc. v. Bank of Longview (In re Coors of North Mississippi, Inc.), 66 B.R. 845, 861 (Bankr.N.D.Miss.1986); Reddy v. Gonzalez, 8 Cal.App.4th 118, 10 Cal.Rptr.2d 55 (1992). However, this rule may have been altered by the Supreme Court’s ruling in the case of Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991) (holding that evidentiary questions involving the discharge of individual debts under 11 U.S.C. § 523 should be judged under a “preponderance” standard). See Heartland Federal Savings & Loan Association v. Briscoe Enterprises, Ltd., II, d/b/a/ Regalridge Apartments (In the Matter of Briscoe Enterprises, Ltd., II), 994 F.2d 1160, 1163-64 (5th Cir.), cert. denied, — U.S. -, 114 S.Ct. 550, 126 L.Ed.2d 451 (1993); Liodas v. Sahadi, 19 Cal.3d 278, 137 Cal.Rptr. 635, 562 P.2d 316 (1977). C. PUBLIC POLICY AND KUPETZ II It is logical to presume that prudent businessmen, upon learning that a company has made a questionable transfer, such as assuming a large debt or giving up a valuable asset without receiving comparable consideration, will be more hesitant in extending credit to that company from then on. This presumption has often hardened into a judicial rule that parties who became creditors (of the transferor/debtor) with prior knowledge of the transfer (actual" }, { "docid": "18796737", "title": "", "text": "claim as required by 11 U.S.C. § 1129(b)(2)(A)(iii). Specifically, Nations-Bank argues that ■ the conveyance of the property based upon this Court’s valuation leaves for no margin of error in ease it receives a lesser amount once it disposes of the property. Moreover, NationsBank points out that the Plan does not provide it with a “safety net” in the form of a hen on its remaining cohateral to satisfy any deficiency that may exist. For these reasons, Nations-Bank requests that this Court deny the confirmation of the Debtor’s Plan. Discussion A. Burden of Proof Before considering whether Nations-Bank will receive the indubitable equivalent of its claim through the Plan, the Court must address the issue of what burden the Debtor must satisfy in proving its case. Specifically, NationsBank argues that the Debtor must prove by clear and convincing evidence that the Plan complies with the confirmation requirements of 11 U.S.C. § 1129(b)(2). Indeed, case law exists to support this argument. See, e.g., In re S.A.B.T.C. Townhouse Ass’n, 152 B.R. 1005, 1008 (Bankr.M.D.Fla.1993); B.W. Alpha, Inc. v. First City Nat’l Bank (In re B.W. Alpha, Inc.), 100 B.R. 831, 833 (N.D.Tex.1988); In re Future Energy Corp., 83 B.R. 470, 481 (Bankr.S.D.Ohio 1988); In re Stoffel, 41 B.R. 390, 392 (Bankr.D.Minn.1984); see also In re Sandy Ridge Dev. Corp., 77 B.R. 69, 73 (Bankr.M.D.La.1987), rev’d, 881 F.2d 1346 (5th Cir.1989) (suggesting that “indubitable equivalent” standard requires proof beyond a reasonable doubt). The Supreme Court’s decision in Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991), however, seriously undermines the position posited by Nations-Bank and the cases cited above. In Grogan, the Court held that the preponderance of the evidence standard applies to actions concerning the dischargeability of debts under 11 U.S.C. § 523(a). In so doing, the Court rejected the view of many courts that a party objecting to the discharge of a particular debt had to prove its case by clear and convincing evidence. The Court stated further that the “preponderance of the evidence” standard normally applies in all civil eases “unless particularly important individual interests or" }, { "docid": "18586817", "title": "", "text": "these systems is an assumption of approximately $33 million of debt. This debt will have a seven year term with interest accruing at prime plus one percent. The purchaser will not make any payments for the first five years. Tr. at 388. Although the parties have failed to provide the Court with sufficient information to value this consideration, I find that in view of the nature of the entire transaction, with all of the cash allocated towards the purchase of the Eau Claire system, the $123 per pop figure used by Mr. Tepner is not useful as a comparable here. II. The Debtors’ Plan Having determined that the Debtors’ going concern value is $110 million, I next consider whether the Debtors’ Plan is confirmable over the Banks’ rejection and then separately address whether the Banks’ Plan merits confirmation in view of its rejection by CIS’s equity security holders. A plan shall be confirmed over impaired classes’ dissents if the “plan does not discriminate unfairly, and is fair and equitable, with respect to each class of claims or interests that is impaired under, and has not accepted, the plan.” 11 U.S.C. § 1129(b)(1). At minimum, a fully secured creditor is treated fairly and equitably if it retains the hen securing its claim and receives deferred cash payments which have a present value equal to the amount of its claim. 11 U.S.C. § 1129(b)(2)(A); see also Federal Sav. & Loan Ins. Corp. v. D & F Constr., Inc. (In re D &F Constr., Inc.), 865 F.2d 673, 675 (5th Cir.1989) (“(T)echnical compliance with ah the requirements in § 1129(b)(2) does not assure that the plan is “fair and equitable.” 5 Collier on Bankruptcy P. 1129.03 at 1129-52 (15th ed. 1988).”). There is a split of authority as to whether a plan proponent must satisfy the dictates of section 1129(b) by a preponderance of the evidence or by clear and convincing evidence. Compare Heartland Fed. Sav. and Loan Ass’n v. Briscoe Enters., LTD., II (In re Briscoe Enters., LTD., II), 994 F.2d 1160, 1164-65 (5th Cir.1993) (finding that preponderance of the evidence is" }, { "docid": "18548367", "title": "", "text": "important individual interests or rights are at stake’”) (quoting Herman & MacLean v. Huddleston, 459 U.S. 375, 389-90, 103 S.Ct. 683, 691-92, 74 L.Ed.2d 548 (1983)) (other citation omitted); Heartland Federal Savings & Loan Assoc. v. Briscoe Enterprises, Ltd., II (In re Briscoe Enterprises, Ltd., II), 994 F.2d 1160, 1165 (5th Cir.1993), cert. denied, 510 U.S. 992, 114 S.Ct. 550, 126 L.Ed.2d 451 (1993) (finding that preponderance standard applied in the context of plan confirmation under § 1129 because there were no “quasi-liberty interests at stake”). The instant adversary is distinguishable from the Supreme Court’s decision in Oriel v. Russell, which held that the clear and convincing standard of proof applied in a turnover action under the Bankruptcy Act of 1898. Oriel v. Russell, 278 U.S. 358, 362, 49 S.Ct. 173, 174, 73 L.Ed. 419 (1929); see Boyer v. Davis (In re U.S.A Diversified Products, Inc.), 193 B.R. 868, 873 n. 3 (Bankr.N.D.Ind.1995) (stating, in dicta, that “[g]iven the fundamental difference between turnover proceedings under the Code and proceedings of the same name under the old Act, combined with the Supreme Court’s current rule for determining when a standard other than a preponderance of the evidence is required in civil proceedings, it is doubtful that the need to prove turnover by clear and convincing evidence, as required by Oriel, survived the enactment of § 542”), aff'd, 196 B.R. 801 (N.D.Ind.1996). First, a proceeding under § 542(a) is not analogous to an action for fraud. In re U.S.A. Diversified Products, Inc., 193 B.R. at 872-73. Second, even if an action under § 542(a) could be analogized to a fraud action, the Supreme Court has recently held that a court need not apply a heightened standard of proof in such an action. Grogan, 498 U.S. at 279, 111 S.Ct. at 654; see also Herman & MacLean v. Huddleston, 459 U.S. 375, 388-91, 103 S.Ct. 683, 690-92, 74 L.Ed.2d 548 (1983) (held that preponderance standard applied in securities fraud action under 1934 Securities Exchange Act). Third, a turnover proceeding under § 542(a) is not a proceeding “in which coercive methods by imprisonment are" }, { "docid": "18796741", "title": "", "text": "Inc., 70 B.R. 330, 334 (Bankr.E.D.Mich.1987). As such, some courts have tended to conclude that a higher burden exists when the indubitable equivalent issue is under consideration. The Court believes, however, that the Fifth Circuit satisfactorily explained this potential problem as follows: [T]he debtor must show that the creditor will receive the indubitable equivalent of its claim by a preponderance of the evidence. The level of proof to show indubit-ability is not raised merely by the use of the word “indubitable”. “Indubitable” modifies “equivalent” not “provides”. Briscoe Enters., Ltd,., 994 F.2d at 1165 n. 26. Therefore, the Court concludes that the Debtor must establish by a preponderance of the evidence that its Plan satisfies the requirements of 11 U.S.C. § 1129(b). B. The Indubitable Equivalent As previously stated in this Order, NationsBank is an impaired creditor, and it has not accepted the Debtor’s Plan. Nevertheless, the Bankruptcy Code allows a court to confirm a reorganization plan, notwithstanding the objections of an impaired class, provided that the plan is “fair and equitable” with respect to the treatment of the claims of each impaired class of claims that has not accepted the plan. 11 U.S.C. § 1129(b)(1). A plan is fair and equitable if it allows a secured party to realize the “indubitable equivalent” of its claim. 11 U.S.C. § 1129(b)(2)(A)(iii). The “indubitable equivalent” standard, which comes from the pre-Bankruptcy Code case of Metropolitan Life Ins. Co. v. Murel Holding Corp. (In re Murel Holding Corp.), 75 F.2d 941 (2d Cir.1935), considers whether the treatment a creditor receives under the plan is completely compensatory and the likelihood the creditor will receive payment. Id. at 942^3; In re Wermelskircken, 163 B.R. 793 (Bankr.N.D.Ohio 1994); 3 David G. Epstein, et al„ Banrrupt-cy § 10-20, at 36-37 (1992). This subsection provides only a minimum requirement for confirmation, however, so a court may decide that a plan is not fair and equitable even if it is in technical compliance with the Code’s requirements. In re Pennave Props. Assocs., 165 B.R. 793, 795 (E.D.Pa.1994); In re Spanish Lake Assocs., 92 B.R. 875, 878 (Bankr.E.D.Mo.1988). The Debtor’s Plan" }, { "docid": "18796738", "title": "", "text": "v. First City Nat’l Bank (In re B.W. Alpha, Inc.), 100 B.R. 831, 833 (N.D.Tex.1988); In re Future Energy Corp., 83 B.R. 470, 481 (Bankr.S.D.Ohio 1988); In re Stoffel, 41 B.R. 390, 392 (Bankr.D.Minn.1984); see also In re Sandy Ridge Dev. Corp., 77 B.R. 69, 73 (Bankr.M.D.La.1987), rev’d, 881 F.2d 1346 (5th Cir.1989) (suggesting that “indubitable equivalent” standard requires proof beyond a reasonable doubt). The Supreme Court’s decision in Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991), however, seriously undermines the position posited by Nations-Bank and the cases cited above. In Grogan, the Court held that the preponderance of the evidence standard applies to actions concerning the dischargeability of debts under 11 U.S.C. § 523(a). In so doing, the Court rejected the view of many courts that a party objecting to the discharge of a particular debt had to prove its case by clear and convincing evidence. The Court stated further that the “preponderance of the evidence” standard normally applies in all civil eases “unless particularly important individual interests or rights are at stake.” Id. at 286, 111 S.Ct. at 659 (quoting Herman & McLean v. Huddleston, 459 U.S. 375, 389-90, 103 S.Ct. 683, 691-92, 74 L.Ed.2d 548 (1983)). After the Supreme Court’s decision in Gro-gan, the trend among lower courts is to require proof by a preponderance of the evidence in situations involving “fair and equitable” treatment under 11 U.S.C. § 1129(b)(2). See Heartland Fed. Savings & Loan Ass’n. v. Briscoe Enters., Ltd., II (In re Briscoe Enters., Ltd., II), 994 F.2d 1160, 1164-65 (5th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 550, 126 L.Ed.2d 451; In re Union Meeting Partners, 165 B.R. 553, 574 n. 17 (Bankr.E.D.Pa.1994); Aetna Realty Investors, Inc. v. Monarch Beach Venture, Ltd. (In re Monarch Beach Venture, Ltd.), 166 B.R. 428, 432 (C.D.Cal.1993); In re SM 104 Ltd., 160 B.R. 202, 214 (Bankr.S.D.Fla.1993); In re MCorp Fin., Inc., 160 B.R. 941, 960 (S.D.Tex.1993); In re Westwood Plaza Apts., 147 B.R. 692, 698 (Bankr.E.D.Tex.1992); see also In re Wermelskirchen, 163 B.R. 793, 795 (Bankr.N.D.Ohio 1994) (holding that the burden" }, { "docid": "18796739", "title": "", "text": "rights are at stake.” Id. at 286, 111 S.Ct. at 659 (quoting Herman & McLean v. Huddleston, 459 U.S. 375, 389-90, 103 S.Ct. 683, 691-92, 74 L.Ed.2d 548 (1983)). After the Supreme Court’s decision in Gro-gan, the trend among lower courts is to require proof by a preponderance of the evidence in situations involving “fair and equitable” treatment under 11 U.S.C. § 1129(b)(2). See Heartland Fed. Savings & Loan Ass’n. v. Briscoe Enters., Ltd., II (In re Briscoe Enters., Ltd., II), 994 F.2d 1160, 1164-65 (5th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 550, 126 L.Ed.2d 451; In re Union Meeting Partners, 165 B.R. 553, 574 n. 17 (Bankr.E.D.Pa.1994); Aetna Realty Investors, Inc. v. Monarch Beach Venture, Ltd. (In re Monarch Beach Venture, Ltd.), 166 B.R. 428, 432 (C.D.Cal.1993); In re SM 104 Ltd., 160 B.R. 202, 214 (Bankr.S.D.Fla.1993); In re MCorp Fin., Inc., 160 B.R. 941, 960 (S.D.Tex.1993); In re Westwood Plaza Apts., 147 B.R. 692, 698 (Bankr.E.D.Tex.1992); see also In re Wermelskirchen, 163 B.R. 793, 795 (Bankr.N.D.Ohio 1994) (holding that the burden is on the objecting party to demonstrate 'by a preponderance of the evidence that § 1129 has not been satisfied). In view of Grogan v. Garner, the Court believes that this later line of authority rep resents the better approach by applying the preponderance of the evidence standard. Specifically, the Court points out that in this ease there are no “particularly important individual interests or rights at stake” in considering the confirmation of the Debtor’s Plan. NationsBank’s claim, while a significant one, does not amount to a liberty interest or constitutionally protected right. Instead, this ease involves a commercial relationship between NationsBank and the Debt- or, and the ultimate interest is money. Under these circumstances, it would not be appropriate to apply the clear and convincing standard. The source of controversy regarding the burden of proof likely can be traced to the use of the word “indubitable” within 11 U.S.C. § 1129(b)(2)(A)(iii). The generally accepted meaning of this word is “too evident to be doubted.” Webster’s New Collegiate DICTIONARY 583 (1979); In re Walat Farms," }, { "docid": "10280770", "title": "", "text": "804-OS. The Briscoe court limited the holdings in those cases to the issue of dischargeability stating “[t]he clear and convincing test is the logical one to apply [in plan confirmation] because of the stricter scrutiny required when property and property rights are sought to be taken.” Briscoe, 138 B.R. at 805 (citing Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593 (1935)). The Fifth Circuit reversed stating that the district court’s analysis is too narrow a reading of Grogan: [B]oth § 1129 and the legislative history are silent as to the burden of proof. This case is solely about money. There are not even any quasi-liberty interests at stake. It is correct, of course, as Justice Brandéis noted during the depression in a case involving the significant alteration of farm mortgagees’ rights, that the bankruptcy laws are subject to the Takings clause. The Code, however, has been the primary source of the creditors’ protections not the Fifth Amendment. Congress provides protections for creditors, and in many instances allows debtors to impinge on creditor’s state law rights. Heartland Fed. Sav. and Loan Ass’n v. Briscoe Enters., Ltd. (In re Briscoe Enters., Ltd.), 994 F.2d 1160, 1165 (5th Cir.1993) (footnote omitted), cert. denied, — U.S. -, 114 S.Ct. 550, 126 L.Ed.2d 451 (1993) (referring to Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593 (1935)). The Fifth Circuit ultimately concluded that based upon legislative silence and the structure of the Code, preponderance of the evidence is the appropriate standard of proof under both § 1129(a) and in cram down under § 1129(b). Briscoe, 994 F.2d at 1165. We agree. Although the holdings in Grogan and Ser-afim could arguably be limited in its application to creditors, we find no sufficient justification for imposing a heightened burden of proof on the debtor in plan confirmation. Accordingly, we follow the Fifth Circuit’s analysis concluding that the preponderance of the evidence is the appropriate standard of proof in confirming a plan under §§ 1129(a) & (b). B. PER ACRE PROPERTY VALUATION 1." }, { "docid": "18796740", "title": "", "text": "is on the objecting party to demonstrate 'by a preponderance of the evidence that § 1129 has not been satisfied). In view of Grogan v. Garner, the Court believes that this later line of authority rep resents the better approach by applying the preponderance of the evidence standard. Specifically, the Court points out that in this ease there are no “particularly important individual interests or rights at stake” in considering the confirmation of the Debtor’s Plan. NationsBank’s claim, while a significant one, does not amount to a liberty interest or constitutionally protected right. Instead, this ease involves a commercial relationship between NationsBank and the Debt- or, and the ultimate interest is money. Under these circumstances, it would not be appropriate to apply the clear and convincing standard. The source of controversy regarding the burden of proof likely can be traced to the use of the word “indubitable” within 11 U.S.C. § 1129(b)(2)(A)(iii). The generally accepted meaning of this word is “too evident to be doubted.” Webster’s New Collegiate DICTIONARY 583 (1979); In re Walat Farms, Inc., 70 B.R. 330, 334 (Bankr.E.D.Mich.1987). As such, some courts have tended to conclude that a higher burden exists when the indubitable equivalent issue is under consideration. The Court believes, however, that the Fifth Circuit satisfactorily explained this potential problem as follows: [T]he debtor must show that the creditor will receive the indubitable equivalent of its claim by a preponderance of the evidence. The level of proof to show indubit-ability is not raised merely by the use of the word “indubitable”. “Indubitable” modifies “equivalent” not “provides”. Briscoe Enters., Ltd,., 994 F.2d at 1165 n. 26. Therefore, the Court concludes that the Debtor must establish by a preponderance of the evidence that its Plan satisfies the requirements of 11 U.S.C. § 1129(b). B. The Indubitable Equivalent As previously stated in this Order, NationsBank is an impaired creditor, and it has not accepted the Debtor’s Plan. Nevertheless, the Bankruptcy Code allows a court to confirm a reorganization plan, notwithstanding the objections of an impaired class, provided that the plan is “fair and equitable” with respect to the" }, { "docid": "3073720", "title": "", "text": "necessary for an effective reorganization which was in prospect in the foreseeable future. Finally, two years and several amendments later, the Debtors filed plans which came on for confirmation over the objections of Brunswick, the Internal Revenue Service and the State of Michigan. The Debtors bore the burden of proving by a preponderance of the evidence that their respective plans satisfy the requirements for confirmation. In re Briscoe Enters., 994 F.2d 1160 (5th Cir.) cert. denied, — U.S. -, 114 S.Ct. 550, 126 L.Ed.2d 451 (1993); In re Monarch Beach Venture, Ltd., 166 B.R. 428 (C.D.Cal.1993); In re Cellular Information Systems, Inc., 171 B.R. 926 (Bankr.S.D.N.Y.1994); In re Zaleha, 162 B.R. 309 (Bankr.D.Idaho 1993); In re Washington Assocs., 147 B.R. 827 (E.D.N.Y.1992); In re Westwood Plaza Apts., 147 B.R. 692, 23 B.C.D. 420 (Bankr.E.D.Tex.1992); In re MCorp Financial, Inc., 137 B.R. 219, 26 C.B.C.2d 1805 (Bankr.S.D.Tex.1992); In re Atlanta Southern Business Park, Ltd., 173 B.R. 444, 26 B.C.D. 138 (Bankr.N.D.Ga.1994). Those requirements are set forth in 11 U.S.C. § 1129(a)(1) through (13). But compliance with § 1129(a)(8), which specifies that each class of claims or interests must either be unimpaired or accept the plan, is not mandatory; § 1129(b)(1), the “cramdown” provision, allows for confirmation “notwithstanding the [impaired class’ nonacceptance] if the plan does not discriminate unfairly, and is fair and equitable with respect to” that class. Both Debtors established that their plans satisfy § 1129(a)(1) through (7), § 1129(a)(10), (12), and (13). RFZ also proved that its plan satisfies § 1129(a)(8). With respect to Trevarrow, however, the class comprised of unsecured nonpriority claims (Class IX), which would receive only a 40% dividend and hence is impaired, rejected the plan. Class III, comprised solely of Brunswick’s impaired secured claim, likewise rejected the plan. Thus Trevarrow’s plan cannot be confirmed unless it meets the criteria set forth in § 1129(b)(1). Brunswick and the IRS argued that Tre-varrow’s plan does not meet the requirements of § 1129(b)(1) with respect to secured claims and Brunswick argued likewise with respect to unsecured claims. Brunswick also argued that Trevarrow’s plan does not satisfy § 1129(a)(ll)," }, { "docid": "18567999", "title": "", "text": "(S.D.N.Y.1987), aff'd sub nom., Kane v. Johns-Manville Corp., 843 F.2d 636 (2d Cir.1988). A bankruptcy court may postpone a decision on confirmation of a Debtor’s Plan to test the Plan’s projections. See In re Belco Vending, Inc., 67 B.R. 234, 238 (Bankr.D.Mass.1986). Throughout the pendency of the instant reserved decision on the confirmation of the Debtor’s Plan, this Court was afforded the opportunity to revisit its decision on feasibility. The purpose of the feasibility requirement under section 1129(a)(ll) is to avoid the confirmation of plans with “visionary schemes which promise creditors and equity holders more under a proposed plan than the debtor can possibly attain after confirmation_ Where the financial realities do not support the proposed plan’s projections, or where proposed assumptions are unreasonable, confirmation of the plan should be denied.” Investors Fla. Agressive Growth Fund, Ltd., 168 B.R. at 765. See also In re Lakeside Global II, Ltd., 116 B.R. 499 (Bankr .S.D.Tex.1989). The Debtor bears the burden of proving confirmation by a preponderance of the evidence. Heartland Fed. Sav. & Loan Ass’n v. Briscoe Enter. Ltd., II (In re Briscoe Enter., Ltd.), 994 F.2d 1160 (5th Cir. 1993), cert. denied, — U.S. —, 114 S.Ct. 550, 126 L.Ed.2d 451 (1993). In reviewing a bankruptcy court’s confirmation of a single asset Debtor’s plan of reorganization, the 5th Circuit concluded that because confirmation involves only financial issues, the preponderance of the evidence standard is appropriate. Id. at 994 F.2d 1165. This Court adopts that evidence standard in this case. In light of the history of the Debtor’s operations, which reveal its inability to meet its projections and the insurmountable problems it would face in selling the Hotel or refinancing it to meet the Plan’s payment provisions, this Court finds that the Debtor has failed to demonstrate the feasibility of the Plan as required under section 1129(11) by a preponderance of the evidence. Accordingly, confirmation of the Plan must be denied. CLINTON’S OBJECTION THAT THE PLAN IS NOT FAIR AND EQUITABLE AND THE CRAM DOWN PROVISIONS OF SECTION 1129(b) SHOULD NOT BE PERMITTED Section 1129(b), colloquially known as the “cram down”" }, { "docid": "18551485", "title": "", "text": "and gain the beneficial ends intended by Congress. Although this court has concluded that, as a matter of law, the plans cannot be confirmed as proposed, it cannot conclude that it was wrong for the Debtors to try. The Debtors’ plans are creative. There is no evidence that the bank ruptcies were filed with malice or ill-will. The Debtors have presented reasonable legal arguments on issues about which there is no clear statutory or case authority. Thus, this court cannot find that these cases were filed in bad faith. Therefore, the court may now proceed to determine whether the debtors’ plans are confirmable on other grounds. C. Plan Confirmation. In order for the Debtors’ plans to be confirmed, they must establish, by a preponderance of the evidence, that all of the requirements of 11 U.S.C. § 1129(a) and (b) have been met. See In re Briscoe Enterprises, Ltd., II, 994 F.2d 1160, 1163-65 (5th Cir.1993), cert. denied, — U.S. —, 114 S.Ct. 550, 126 L.Ed.2d 451 (1993). In light of the Supreme Court’s decision in Grogan v. Garner, 498 U.S. 279, 280, 111 S.Ct. 654, 655-56, 112 L.Ed.2d 755 (1991) (nondisehargeability case), the courts in the Ninth Circuit and other circuits recognize that a debtor need establish compliance with the requirements for a “cramdown” plan only by a “preponderance of the evidence.” See In re Arnold & Baker Farms, 177 B.R. 648, 654-55 (9th Cir. BAP 1994); In re Patrician St. Joseph Partners Limited Partnership, 169 B.R. 669, 680 (D.Ariz.1994); In re Monarch Beach Venture, Ltd., 166 B.R. 428, 432 (C.D.Cal.1993); In re Cellular Information Systems, Inc., 171 B.R. 926, 937 (Bankr.S.D.N.Y.1994). However, in this case, confirmation turns on an issue of law. Hence, this court need not weigh the evidence. 1. What is The Nature Of The Share Case Judgment? The pivotal issue is the nature, or the legal interpretation, of the Share Case Judgment. The parties have each presented their views in post-trial briefs. The Debtors allege that the judgment is not an executory contract, is not a secured claim, but is only an unsecured claim subject to" }, { "docid": "12009248", "title": "", "text": "actual-intent fraudulent transfers. 299 F.Supp. at 664-65. . Compare In re Gabor, 280 B.R. 149, 155 (Bankr.N.D.Ohio 2002) (trustee must meet preponderance of the evidence standard in actual fraudulent transfer action); In re Model Imperial, Inc., 250 B.R. 776, 791 (Bankr.S.D.Fla.2000) (same) and In re Bennett Funding Group, Inc., 232 B.R. 565, 570 (Bankr.N.D.N.Y.1999) (same) with In re Lease-A-Fleet, Inc., 155 B.R. 666, 674 (Bankr.E.D.Pa.1993) (clear and convincing standard applies in § 548(a) (1)(A) cases) and In re Ste. Jan-Marie, Inc., 151 B.R. 984, 987 (Bankr.S.D.Fla.1993) (same). \"The strong current of opinion now holds that actual intent under 11 U.S.C. § 548(a)(1)(A) need only be shown by a preponderance of the evidence.... A minority of courts, however, have continued to adhere to the clear and convincing standard in section 548(a)(1)(A) cases.\" In re Canyon Sys. Corp., 343 B.R. 615, 636 (Bankr.S.D.Ohio 2006) (quoting David B. Young, Preferences and Fraudulent Transfers, 876 PLI/Comm. 667, 803-04 (2005)). . One of the leading cases applying Grogan to § 548 of the Bankruptcy Code is In re Sullivan. The Sullivan court held that a trustee must prove an actual-intent fraudulent transfer by a preponderance of the evidence. 161 B.R. at 779. The court reasoned that preponderance was the proper standard by stating that cases from the U.S. Supreme Court and the Fifth Circuit follow \"an apparent trend towards using a preponderance standard unless Congress specifically prescribes some other standard or unless some particularly important individual interest is at stake (e.g., a constitutional liberty’ interest).” id. As support, the court cited Grogan and cases construing and extending Grogan. Id. (citing Matter of Briscoe Enters., Ltd., 994 F.2d 1160, 1164-65 (5th Cir.1993)) (discussing Grogan and concluding that a \"preponderance of the evidence is the debtor’s appropriate standard of proof both under § 1129(a) and in a cramdown”); In re Lawler, 141 B.R. 425, 428 (9th Cir. BAP 1992) (“A fair reading of [Grogan] leads to the inference that the preponderance standard applies in all bankruptcy proceedings grounded in allegations of fraud.”). . AMC argues that ASARCO fails to cite a single UFTA jurisdiction that has ever" }, { "docid": "10280769", "title": "", "text": "Ltd. (In re Monarch Beach Venture, Ltd.), 166 B.R. 428, 431-32 (C.D.Cal.1993); In re Woodstock Assoc’s I, Inc., 120 B.R. 436, 453 (Bankr.N.D.Ill.1990); Rusty Jones, 110 B.R. at 373. One court applied the preponderance of the evidence standard to the requirements under § 1129(a) and the clear and convincing standard under the cram down provisions of § 1129(b). In re MCorp Fin., Inc., 137 B.R. 219, 225 (Bankr.S.D.Tex.1992). We find the preponderance of the evidence to be the correct burden of proof in the context of plan confirmation. The Supreme Court recently applied the preponderance of the evidence standard to nondischargeability proceedings under § 523(a). Grogan v. Garner, 498 U.S. 279, 285 n. 11, 111 S.Ct. 654, 658 n. 11, 112 L.Ed.2d 755 (1991). Similarly, the Tenth Circuit applied the preponderance of the evidence standard to the general discharge under § 727. In re Serafini, 938 F.2d 1156, 1157 (10th Cir.1991). Despite this apparent trend, the district court in Briscoe did not apply the Grogan and Serafini standard to plan confirmation. Briscoe, 138 B.R. at 804-OS. The Briscoe court limited the holdings in those cases to the issue of dischargeability stating “[t]he clear and convincing test is the logical one to apply [in plan confirmation] because of the stricter scrutiny required when property and property rights are sought to be taken.” Briscoe, 138 B.R. at 805 (citing Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L.Ed. 1593 (1935)). The Fifth Circuit reversed stating that the district court’s analysis is too narrow a reading of Grogan: [B]oth § 1129 and the legislative history are silent as to the burden of proof. This case is solely about money. There are not even any quasi-liberty interests at stake. It is correct, of course, as Justice Brandéis noted during the depression in a case involving the significant alteration of farm mortgagees’ rights, that the bankruptcy laws are subject to the Takings clause. The Code, however, has been the primary source of the creditors’ protections not the Fifth Amendment. Congress provides protections for creditors, and in many instances allows" }, { "docid": "18586818", "title": "", "text": "claims or interests that is impaired under, and has not accepted, the plan.” 11 U.S.C. § 1129(b)(1). At minimum, a fully secured creditor is treated fairly and equitably if it retains the hen securing its claim and receives deferred cash payments which have a present value equal to the amount of its claim. 11 U.S.C. § 1129(b)(2)(A); see also Federal Sav. & Loan Ins. Corp. v. D & F Constr., Inc. (In re D &F Constr., Inc.), 865 F.2d 673, 675 (5th Cir.1989) (“(T)echnical compliance with ah the requirements in § 1129(b)(2) does not assure that the plan is “fair and equitable.” 5 Collier on Bankruptcy P. 1129.03 at 1129-52 (15th ed. 1988).”). There is a split of authority as to whether a plan proponent must satisfy the dictates of section 1129(b) by a preponderance of the evidence or by clear and convincing evidence. Compare Heartland Fed. Sav. and Loan Ass’n v. Briscoe Enters., LTD., II (In re Briscoe Enters., LTD., II), 994 F.2d 1160, 1164-65 (5th Cir.1993) (finding that preponderance of the evidence is applicable cramdown standard) and In re MCorp Fin., Inc., 160 B.R. 941, 960 (S.D.Tex.1993) (same) with In re Rusty Jones, Inc., 110 B.R. 362, 373 (Bankr.N.D.Ill.1990) (finding that clear and convincing is the appropriate standard) and In re Future Energy Corp., 83 B.R. 470, 481 (Bankr.S.D.Ohio 1988) (same); see also In re Kennedy, 158 B.R. 589, 601 n. 17 (Bankr.D.N.J.1993) (In denying confirmation, finding that “(t)he burden is on the debtor to show, by a preponderance of the evidence, that the protection provided under the proposed plan is completely compensatory.”) (citing Briscoe, 994 F.2d at 1165). Application of the clear and convincing standard is limited, in civil cases, to those instances in which “particularly important individual interests” require protection. Addington v. Texas, 441 U.S. 418, 424, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979); cf. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991) (holding that preponderance of the evidence is applicable standard for exceptions to discharge under section 523(a)). In Briscoe, the Fifth Circuit reasoned that confirmation under" }, { "docid": "10280767", "title": "", "text": "is a question of fact that we review under the clearly erroneous standard. In re Acequia, Inc., 787 F.2d 1352, 1358 (9th Cir.1986); Citibank, N.A. v. Baer, 651 F.2d 1341, 1346 (10th Cir. 1980) (Bankruptcy Act Case); Stolrow’s, 84 B.R. at 172. Whether a plan provides a secured creditor with the “indubitable equivalent” of its claim under § 1129(b)(2)(A)(iii) is a mixed question of law and fact. In re Pine Mountain, Ltd., 80 B.R. 171, 172 (9th Cir. BAP 1987). “Although the facts underlying such a determination are reviewed under the clearly erroneous standard, the question of whether the legal standard has been satisfied is reviewed de novo.” Pine Mountain, 80 B.R. at 172. DISCUSSION A. STANDARD OF PROOF The debtor carries the burden of proving that a Chapter 11 plan complies with the statutory requirements for confirmation under §§ 1129(a) & (b). See, e.g., In re B.W. Alpha, Inc., 100 B.R. 831 (N.D.Tex.1988); In re Rusty Jones, Inc., 110 B.R. 362 (Bankr.N.D.Ill.1990). Although the parties agree with the preceding conclusion, they disagree with the characterization of the scope of the debtor’s burden of proof. Arnold and Baker maintain that the burden of proof is by a preponderance of the evidence while FmHA maintains that it is by clear and convincing evidence. Proof by the preponderance of the evidence means that it is sufficient to persuade the finder of fact that the proposition is more likely true than not. See, e.g., In re Winship, 397 U.S. 358, 371, 90 S.Ct. 1068, 1076, 25 L.Ed.2d 368 (1970). Clear and convincing evidence is a higher standard requiring a high probability of success. See, e.g., Colorado v. New Mexico, 467 U.S. 310, 316, 104 S.Ct. 2433, 2437-38, 81 L.Ed.2d 247 (1984). Some courts have applied the clear and convincing standard to plan confirmation. See, e.g., In re Briscoe Enters., Ltd., II, 138 B.R. 795, 804-05 (N.D.Tex.1992), rev’d, 994 F.2d 1160, 1163-65 (5th Cir.1993); In re Miami Ctr. Assoc’s., Ltd., 144 B.R. 937, 940 (Bankr.S.D.Fla.1992). Other courts have applied the preponderance of the evidence standard. See, e.g., Aetna Realty Investors v. Monarch Beach Venture," }, { "docid": "18586819", "title": "", "text": "applicable cramdown standard) and In re MCorp Fin., Inc., 160 B.R. 941, 960 (S.D.Tex.1993) (same) with In re Rusty Jones, Inc., 110 B.R. 362, 373 (Bankr.N.D.Ill.1990) (finding that clear and convincing is the appropriate standard) and In re Future Energy Corp., 83 B.R. 470, 481 (Bankr.S.D.Ohio 1988) (same); see also In re Kennedy, 158 B.R. 589, 601 n. 17 (Bankr.D.N.J.1993) (In denying confirmation, finding that “(t)he burden is on the debtor to show, by a preponderance of the evidence, that the protection provided under the proposed plan is completely compensatory.”) (citing Briscoe, 994 F.2d at 1165). Application of the clear and convincing standard is limited, in civil cases, to those instances in which “particularly important individual interests” require protection. Addington v. Texas, 441 U.S. 418, 424, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979); cf. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991) (holding that preponderance of the evidence is applicable standard for exceptions to discharge under section 523(a)). In Briscoe, the Fifth Circuit reasoned that confirmation under section 1129(b) does not implicate the “ ‘liberty’ categories” which the Supreme Court has referred to in applying the clear and convincing standard, but that the individual interests affected are analogous to those implicated in a section 523(a) action. Briscoe, 994 F.2d at 1164-65; see also id. at 1164 (“(a) number of bankruptcy courts have used the clear and convincing standard in a cram-down, ... (none of them offer) a satisfactory explanation why that is the appropriate standard.”) (footnote omitted). I find the Fifth Circuit’s analysis persuasive and conclude that a plan proponent must demonstrate that its plan satisfies section 1129(b) by a preponderance of the evidence. A. Methodology to Determine Adequacy of Proposed Cramdown Interest Rate The Banks’ primary objection to the Debt- or’s Plan is that the Debtors propose to pay a rate of interest on the Banks’ $94.5 million claim which fails to provide the Banks with a stream of payments which have a present value equal to the amount of their claim. The Debtors propose to pay the Banks 3% over" }, { "docid": "18548366", "title": "", "text": "hour. The Court denied the Debtors exemptions on April 10, 1996 based on the Debtors’ failure to respond to the Trustee’s objection. See Docket # 98, Order dated April 10, 1996 (disallowing exemptions). DISCUSSION BURDEN OF PROOF The Trustee bears the burden of proof on his complaint for turnover. This Court has previously applied the preponderance standard in an action for turnover under § 542, based on the Supreme Court’s decision in Grogan v. Garner which stated, albeit in dicta, that the preponderance standard generally applies in civil actions between private litigants. Hunter v. United States of America, District Director of Internal Revenue (In re Burkholder), 177 B.R. 260, 262 (Bankr.N.D.Ohio 1995) (citations omitted); cf. Grogan v. Garner, 498 U.S. 279, 286, 111 S.Ct. 654, 659, 112 L.Ed.2d 755 (1991) (stating, in the context of a fraud action under § 523(a), that “[bjecause the preponderance-of-the-evidence standard re- suits in a roughly equal allocation of the risk of error between litigants, we presume that this standard is applicable in civil actions between private litigants unless ‘particularly important individual interests or rights are at stake’”) (quoting Herman & MacLean v. Huddleston, 459 U.S. 375, 389-90, 103 S.Ct. 683, 691-92, 74 L.Ed.2d 548 (1983)) (other citation omitted); Heartland Federal Savings & Loan Assoc. v. Briscoe Enterprises, Ltd., II (In re Briscoe Enterprises, Ltd., II), 994 F.2d 1160, 1165 (5th Cir.1993), cert. denied, 510 U.S. 992, 114 S.Ct. 550, 126 L.Ed.2d 451 (1993) (finding that preponderance standard applied in the context of plan confirmation under § 1129 because there were no “quasi-liberty interests at stake”). The instant adversary is distinguishable from the Supreme Court’s decision in Oriel v. Russell, which held that the clear and convincing standard of proof applied in a turnover action under the Bankruptcy Act of 1898. Oriel v. Russell, 278 U.S. 358, 362, 49 S.Ct. 173, 174, 73 L.Ed. 419 (1929); see Boyer v. Davis (In re U.S.A Diversified Products, Inc.), 193 B.R. 868, 873 n. 3 (Bankr.N.D.Ind.1995) (stating, in dicta, that “[g]iven the fundamental difference between turnover proceedings under the Code and proceedings of the same name under the" } ]

[ { "docid": "20051104", "title": "", "text": "in question as indicated, supra,, are the inland charges and the buying commissions which will be dealt with separately herein. Bona fide buying commissions do not constitute part of the value of merchandise for appraisement purposes. United States v. Nelson Bead Co., 42 CCPA 175, C.A.D. 590; United States v. Gitkin Co., 46 Cust. Ct. 788, A.R.D. 132. Whether a buying commission is bona fide depends upon the facts in each case. In the instant case, in addition to the affidavit of the president of The Tosho Co., Ltd., received in evidence as plaintiff’s exhibit 1, the testimony of Mr. Haddad was adduced confirming the functions of The Tosho Co., Ltd., and the procedure followed by him on his various trips to Hong Kong for the purpose of buying merchandise. The record satisfactorily establishes that The Tosho Co., Ltd., was in fact a bona fide buying agent of the importer herein. It has also been established that the commission amounted to 5 percent of the invoiced price. Accordingly, charges of 5 percent of the invoiced prices representing buying commissions are not properly a part of the dutiable value for appraisement purposes. Before considering the question of inland charges, it is deemed pertinent at this point to consider the contention of plaintiff that it is entitled to rely upon the presumption of correctness attaching to the appraisement on all portions of said appraisement which are not being contested herein by it under the principles enunciated in the Fritzsohe and BrecTmer cases, supra. While it is true that, where an appraisement is separable and an importer contests only certain portions of the appraisement, the importer may rely upon the presumption of correctness attaching to the appraisement for those items not contested. However, where the appraisement is not separable, the importer cannot utilize the presumption of correctness in this manner. Valley Knitting Co., Inc., et al. v. United States, 44 Cust. Ct. 599, Reap. Dec. 9627; United States v. Gitkin Co., supra. In the instant case, the mere fact that the mathematical computation, as indicated, supra, would eventually equal the sum of the" } ]

[ { "docid": "18700330", "title": "", "text": "appraisement is not separable, then the burden rests with the party challenging it of establishing every material element in the case, and where an export value different from that returned by the appraiser is claimed, it is incumbent upon the plaintiff to show the price at which such or similar merchandise was freely sold or, in the absence of sales, offered for sale in the principal markets of the country of exportation in the usual wholesale quantities and in the ordinary course of trade. Valley Knitting Co., Inc., et al. v. United States, 44 Cust. Ct. 599, Reap. Dec. 9627; Haddad & Sons, Inc. v. United States, 53 Cust. Ct. 423, Reap. Dec. 10825. Generally speaking, in instances where the appraisement is expressed in terms of an f.o.b. port of exportation value, it is ordinarily not considered to be a separable appraisement and proof of an alternative value in accordance with the statutory definition has been required. The rule is expressed in S. S. Kresge Co. et al. v. United States, 45 Cust. Ct. 469, Reap. Dec. 9778, as follows: Unlike the Breelmer case, 'the appraisement at bar does not show a first cost or per se price to which the inland charges and commission are added. It is a single unit price, f.o.b. net, packed, which, to be sure, by its very statement encompasses such charges, but whether as invoiced, or in some other amount, the return does not reveal. That a mathematical computation might tend to indicate that the appraiser divided the number of square feet of rugs imported into the specified charges and increased the invoice unit values to that extent, does not necessarily suggest that he so acted. It may be coincidence that such results ensue, for it is equally possible that he found the charges excessive and the per se values inadequate, and made his computation accordingly. In view of the way the appraised value was expressed, the court may not, without proof, inquire into the methods by which it was ascertained. To challenge 'the item of the charges under such circumstances, is to bring" }, { "docid": "23382165", "title": "", "text": "flowers and birds, baskets, mosaic tiles, and dolls. The parties in both appeals agree -that the correct basis of valuation is “export value” as defined in section 402 (b) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, T.D. 54165, which reads in pertinent part: (b) Vkoport Value. — For the purposes of this section, the export value of imported merchandise shall be the price, at the time of exportation to the United States of the merchandise undergoing appraisement, at which such or similar merchandise is freely sold or, in the absence of sales, offered for sale[ ] in the principal markets of the ¡country of exportation in the usu'al wholesale quantities and in the ordinary course of trade, for exportation to the United States, plus, when not included in such price, the cost of all containers and coverings of whatever nature and all other expenses incidental to placing the merchandise in condition, packed ready for shipment to the United States. [Emphasis added.] Each appeal involves a “separable appraisement” and application of the so-called “separability rule,” both of which were succinctly explained in United States v. Supreme Merchandise Co., 48 Cust. Ct. 714, A.R.D. 145 (1962): If ex-factory prices and other charges are separately stated on the invoices and the appraiser’s finding of value is expressed in terms of the invoice unit prices plus the questioned charges, the appraisement is deemed to be separable. United States v. Dan Brechner et al., 38 Cust. Ct. 719, A.R.D. 71; United States v. Gitkin Co., supra; Valley Knitting Co., Inc., et al. v. United States, 44 Cust. Ct. 599, Reap. Dec. 9627. Under the rule expressed in United States v. Fritzsche Bros., Inc., 35 C.C.P.A. (Customs) 60, C.A.D. 371, a party ■to a reappraisement proceeding may challenge one or more of the elements entering into an appraisement, while relying upon the presumption of correctness of the appraiser’s return as to all other elements, whenever the challenged items do not disturb the effect of the remainder of the appraisement. Such is the ease in the instance of an" }, { "docid": "11855841", "title": "", "text": "is not here concerned with what happened to the merchandise after importation between parties in this country not privy to the export-import transaction. Indeed, it seems somewhat surprising, to say the least, that an appraiser in finding a value for imported merchandise predicated upon statutory constructed value would include therein expenses incurred by an unrelated American purchaser of the product in the manufacture of a completely new and different article. See for example R. J. Saunders & Co., Inc. v. United States, 23 Cust. Ct. 311, Reap. Dec. 7754, and Cavalier Shipping Co., Inc., and Soderhamn Machine Manufacturing Co. v. United States, 57 Cust. Ct. 652, Reap. Dec. 11231, affirmed, United States v. Cavalier Shipping Co., Inc., and Soderhamn Machine Manufacturing Co., 59 Cust. Ct. 850, A.R.D. 229, appeal pending. But tliat fact lias not been established by competent proof. At best it lias been suggested by inference and coincidence and, hence, has no bearing upon the issues involved in this case. What must be determined is whether plaintiff has established an export value within the statutory definition thereof or a constructed value differing in amount from that found by the appraiser. The presumption flowing from an appraisement on the basis of constructed value, in view of the provisions of section 402(a), supra, is that there was no export or United States value for the merchandise at bar, and the burden rested with plaintiff to support its claim for export value by establishing every material element in the statutory definition thereof. Under its alternative claim of constructed value, differing in amount from that returned by the appraiser, plaintiff was privileged to rely upon the finding inherent in the presumptively correct appraisement, that there was no export or United States value for such or similar merchandise, B. A. McKenzie & Co., Inc., et al. v. United States, 47 CCPA 143, C.A.D. 748; United States v. A. N. Deringer, Inc., 46 Cust. Ct. 762, A.R.D. 127; United States v. Minkap of California, Inc., by Frank P. Dow Co., Inc., of L.A., 48 Cust. Ct. 708, A.R.D. 144. The evidence addressed to these" }, { "docid": "18700328", "title": "", "text": "only that the appraiser’s action was erroneous, but that the claimed value is proper. 28 U.S.C., section 2633; Brooks Paper Company v. United States, 40 CCPA 38, C.A.D. 495; Kenneth Kittleson v. United States, 40 CCPA 85, C.A.D. 502; Kobe Import Co. v. United States, 42 CCPA 194, C.A.D. 593. In order for a plaintiff to substantiate a value different from that returned by the appraiser, it is ordinarily incumbent upon him to establish every material element included in the statutory basis of value upon which he relies. Brooks Paper Company v. United States, supra. However, under certain circumstances, as where the appraisement is construed as consisting of separable components, it has been held permissible for a party to challenge one or more of such components, while relying upon the presumption of correctness of all unchallenged elements, when the effect of so doing does not destroy the remainder of the appraisement. This was the principle established in the cases of United States v. Fritzsche Bros., Inc., 35 CCPA 60, C.A.D. 371, and United States v. Schroeder & Tremayne, Inc., et al., 41 CCPA 243, C.A.D. 558, and with respect to charges of the kind here involved, this rule was applied in the case of United States v. Dan Brechner & Co., 38 Cust. Ct. 719, A.R.D. 71, affirming Same v. Same, 36 Cust. Ct. 612, Reap. Dec. 8599. It was there held that an appraisement which in effect adopted invoiced ex-factory prices and separately stated additional charges, was sever-able, and that the question of the addition of the charges could be raised without disturbing the presumptively correct ex-factory prices, or requiring that such prices be established in accordance with the applicable statutory definition of value. This view lias been followed in the oases of United States v. Supreme Merchandise Company, 48 Cust. Ct. 714, A.R.D. 145; Haddad & Sons, v. United States, 53 Cust. Ct. 428, Reap. Dec. 10830; S. H. Kress & Co. et al. v. United States, 45 Cust. Ct. 566, Neap. Dec. 9853; United States v. Gitkin Co., 46 Cust. Ct. 788, A.R.D. 132. Where, however, the" }, { "docid": "6604847", "title": "", "text": "form part of the value of imported merchandise. Dan Brechner et al. v. United States, supra, affirmed United States v. Dan Brechner et al., supra; United States v. Supreme Merchandise Co., supra; Haddad & Sons, Inc. v. United States, 53 Cust. Ct. 428, Reap. Dec. 10830; Valley Knitting Co., Inc., et al. v. United States, 44 Cust. Ct. 599, Reap. Dec. 9627; United States v. Gitkin Co., supra. It may now be declared to be settled law that charges accruing subsequent to the time when merchandise leaves the principal market are part of the statutory value of such merchandise only when it is established that such or similar merchandise could not be purchased at prices which do not include such charges. Where, however, there is evidence to show that the merchandise can be bought at the factory, or in the principal market if that is located elsewhere than at the factory, at unit prices which do not include such charges, they are not to be considered as part of the value of the merchandise. Export value is defined as the price in the principal market at which such or similar merchandise is freely sold or offered for sale. It includes all expenses incidental to placing the merchandise in condition, packed ready for shipment to the United States. If that price is one which does not embrace expenses to be incurred for subsequent transactions, then those expenses are not added to the price for the purpose of determining statutory value. As this court had occasion to observe in the case of Bud Berman Sportswear, Inc. v. United States, 55 Cust. Ct. 574, Reap. Dec. 11056, since the inclusion of inland freight and other charges incurred in connection with the exportation of merchandise from a foreign country constitutes a departure from the general rule that such charges do not ordinarily form part of export value, a somewhat lenient attitude is warranted in the determination of when conditions exist which require a finding that there is no other price but the one which embraces such charges. While it is true that the prices" }, { "docid": "8560092", "title": "", "text": "appraiser is presumptively correct, and a party desiring to challenge his finding must establish prima fade not only that the appraiser acted erroneously, but also that the claimed value is proper. Kobe Import Co. v. United States, 42 CCPA 194, C.A.D. 593. Inability to satisfy either of these evidentiary burdens amounts to a failure of proof requiring an affirmance of the appraised values. In measuring the full extent of plaintiff’s burden of proof, one further observation is necessary. The appraisements involved in the instant appeals were not expressed in terms of a first cost or per se price to which the questioned inland charges were added, under which circumstances if existing the appraisements might be deemed separable and the litigant permitted to challenge only the questioned inland charges while relying upon the presumption of correctness to satisfy the other elements of export value. United States v. Dan Brechner, etc., 38 Cust. Ct. 719, A.R.D. 71. Kather, the court is here faced with appraisements expressed in an f.o.b. port of exportation price, a form of appraisement not normally considered separable. Thus, to sustain its evidentiary burdens, plaintiff was required, in conformity with the statutory prescripts, to establish every element in the statutory definition of export value. S. S. Kresge Co. et al. v. United States, 45 Cust. Ct. 469, Reap. Dec. 9778; Bud Berman Sportswear, Inc. v. United States, 55 Cust. Ct. 574, Reap. Dec. 11056, affirmed United States v. Bud Berman Sportswear, Inc., 57 Cust. Ct. 733, A.R.D. 211, appeal pending; Valley Knitting Co., Inc., et al. v. United States, 44 Cust. Ct. 599, Reap. Dec. 9627. For the reasons hereinafter assigned, the court finds plaintiff’s proof deficient in several respects. Plaintiff’s initial claim that the invoice unit prices, rather than the appraised unit values, properly reflect the export value of the involved sisal pads is not substantiated by the evidence. As previously mentioned, plaintiff is charged with the burden of proving export value, that is to say, of showing, inter alia, that the merchandise in question was freely sold or, in the absence of sales, offered for sale in" }, { "docid": "11855839", "title": "", "text": "party to challenge one or more of such components, while relying upon the presumption of correctness of all unchallenged elements, when the effect of so doing does not destroy the remainder of the appraisement. This was the principle established in the cases of United States v. Fritzsche Bros., Inc., 35 CCPA 60, C.A.D. 371, and United States, v. Schroeder & Tremayne, Inc., et al., 41 CCPA 243, C.A.D. 558, and with respect to charges of the kind here involved, this rule was applied in the case of United States v. Dan Brechner & Co., 38 Cust. Ct. 719, A.P.D. 71, affirming Same v. Same, 36 Cust. Ct. 612, Reap. Dec. 8599. It was there held that an appraisement which in effect adopted invoiced ex-factory prices and separately stated additional charges, was severable and that the question of the addition of the charges could be raised without disturbing the presumptively correct ex-factory prices, or requiring that such prices be established in accordance with the applicable statutory definition of value. This view has been followed in the cases of United States v. Supreme Merchandise Company, 48 Cust. Ct. 714, A.R.D. 145; Haddad & Sons v. United States, 53 Cust. Ct. 428, Reap. Dec. 10830; S. H. Kress & Co., et al. v. United States, 45 Cust. Ct. 566, Reap. Dec. 9853; United States v. Gitkin Co., 46 Cust. Ct. 788, A.R.D. 132. Where, however, the appraisement is not separable, then the burden rests with the party challenging it of establishing every material element in the case, and where an export value different from that returned by the appraiser is claimed, it is incumbent upon the plaintiff to show the price at which such or similar merchandise was freely sold or, in the absence of sales, offered for sale in the principal markets of the country of exportation in the usual wholesale quantities and in the ordinary course of trade. Valley Knitting Co., Inc. et al. v. United States, 44 Cust. Ct. 599, Reap. Dec. 9627; Haddad & Sons, Inc. v. United States, 53 Cust. Ct. 423, Reap. Dec. 10825. Accordingly, the court" }, { "docid": "11855840", "title": "", "text": "cases of United States v. Supreme Merchandise Company, 48 Cust. Ct. 714, A.R.D. 145; Haddad & Sons v. United States, 53 Cust. Ct. 428, Reap. Dec. 10830; S. H. Kress & Co., et al. v. United States, 45 Cust. Ct. 566, Reap. Dec. 9853; United States v. Gitkin Co., 46 Cust. Ct. 788, A.R.D. 132. Where, however, the appraisement is not separable, then the burden rests with the party challenging it of establishing every material element in the case, and where an export value different from that returned by the appraiser is claimed, it is incumbent upon the plaintiff to show the price at which such or similar merchandise was freely sold or, in the absence of sales, offered for sale in the principal markets of the country of exportation in the usual wholesale quantities and in the ordinary course of trade. Valley Knitting Co., Inc. et al. v. United States, 44 Cust. Ct. 599, Reap. Dec. 9627; Haddad & Sons, Inc. v. United States, 53 Cust. Ct. 423, Reap. Dec. 10825. Accordingly, the court is not here concerned with what happened to the merchandise after importation between parties in this country not privy to the export-import transaction. Indeed, it seems somewhat surprising, to say the least, that an appraiser in finding a value for imported merchandise predicated upon statutory constructed value would include therein expenses incurred by an unrelated American purchaser of the product in the manufacture of a completely new and different article. See for example R. J. Saunders & Co., Inc. v. United States, 23 Cust. Ct. 311, Reap. Dec. 7754, and Cavalier Shipping Co., Inc., and Soderhamn Machine Manufacturing Co. v. United States, 57 Cust. Ct. 652, Reap. Dec. 11231, affirmed, United States v. Cavalier Shipping Co., Inc., and Soderhamn Machine Manufacturing Co., 59 Cust. Ct. 850, A.R.D. 229, appeal pending. But tliat fact lias not been established by competent proof. At best it lias been suggested by inference and coincidence and, hence, has no bearing upon the issues involved in this case. What must be determined is whether plaintiff has established an export value within" }, { "docid": "6604845", "title": "", "text": "properly included by the appraiser as a part of the export value of the merchandise. It must be remembered in the instant case, however, that all of the importations here involved were appraised on the basis of f.o.b. Texcoco prices and that the appellants are herein challenging only that portion of the appraisement which adds to those prices the 5 percent commission charged by Export Shipping. Under the principles first enunciated in the case of United States v. Fritzsche Bros., Inc., 35 CCPA 60, C.A.D. 371, and consistently followed in United States v. Schroeder & Tremayne, Inc., et al., 41 CCPA 243, C.A.D. 558; Dan Brechner et al. v. United States, 36 Cust. Ct. 612, Reap. Dec. 8599, affirmed United States v. Dan Brechner et al., 38 Cust. Ct. 719, A.R.D. 71; United States v. Supreme Merchandise Co., 48 Cust. Ct. 714, A.R.D. 145; and United States v. Gitkin Co., 46 Cust. Ct. 788, A.R.D. 132, such an appraisement is deemed to be separable, and a party challenging the additional charge may rely upon the presumption of correctness inherent in the appraiser’s return with respect to all other unchallenged items. The presumption flowing from the appraiser’s finding of f.o.b. Tex-coco prices in the present instance assumes that such or similar mer chandise was freely sold or, in the absence of sales, offered for sale in Texcoco, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States at the invoice unit prices. We are not, therefore, here concerned with the question of whether or not sales were made which comport with the new statutory definition of export value or whether it is proper to consider offers for sale in lieu of actual sales in the determination of such value. These are elements which are implicit in the appraisement and have not been challenged by appellants. What concerns us here is the same question which confronted our appellate court in the Straub and Mottola cases, supra, and has been presented to this court in numerous cases since, namely, when inland freight and other charges" }, { "docid": "6604846", "title": "", "text": "presumption of correctness inherent in the appraiser’s return with respect to all other unchallenged items. The presumption flowing from the appraiser’s finding of f.o.b. Tex-coco prices in the present instance assumes that such or similar mer chandise was freely sold or, in the absence of sales, offered for sale in Texcoco, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States at the invoice unit prices. We are not, therefore, here concerned with the question of whether or not sales were made which comport with the new statutory definition of export value or whether it is proper to consider offers for sale in lieu of actual sales in the determination of such value. These are elements which are implicit in the appraisement and have not been challenged by appellants. What concerns us here is the same question which confronted our appellate court in the Straub and Mottola cases, supra, and has been presented to this court in numerous cases since, namely, when inland freight and other charges form part of the value of imported merchandise. Dan Brechner et al. v. United States, supra, affirmed United States v. Dan Brechner et al., supra; United States v. Supreme Merchandise Co., supra; Haddad & Sons, Inc. v. United States, 53 Cust. Ct. 428, Reap. Dec. 10830; Valley Knitting Co., Inc., et al. v. United States, 44 Cust. Ct. 599, Reap. Dec. 9627; United States v. Gitkin Co., supra. It may now be declared to be settled law that charges accruing subsequent to the time when merchandise leaves the principal market are part of the statutory value of such merchandise only when it is established that such or similar merchandise could not be purchased at prices which do not include such charges. Where, however, there is evidence to show that the merchandise can be bought at the factory, or in the principal market if that is located elsewhere than at the factory, at unit prices which do not include such charges, they are not to be considered as part of the value of the merchandise. Export" }, { "docid": "11629548", "title": "", "text": "to a reappraisement proceeding may challenge one or more of the elements entering into an appraisement, while relying upon the presumption of correctness of the appraiser’s return as to all other elements,, whenever the challenged items do not disturb the effect of the remainder of the appraisement. Such is the case in the instance of an appraisement at ex-factory-plus-charges value, and the charges may be disputed without the necessity of proof that the ex-factory prices comply with the statutory definition of export value. * * * In the instant case, except for the lily of the valley items, the appraiser appraised the merchandise at the ex-factory prices set forth in the invoices plus certain charges. Plaintiff has challenged only the addition of the charges. The appraisement thus establishes that there was an export value for the imported merchandise; that at the time .of exportation to the United States, such or similar merchandise was freely sold or, in the absence of sales, offered for sale in .the principal markets of Japan, in the usual wholesale quantities and in the .ordinary course of trade, for exportation to the United States, and that part of the appraised value was represented by ex-factory prices and part by certain charges. It does not establish that the merchandise was freely sold, or offered for sale to all purchasers at the ex-factory prices, but rather that it was so sold or offered at prices equivalent to the ex-factory prices plus the charges. Plaintiff has the burden of •establishing that such or similar merchandise was freely sold, or offered for sale, to all purchasers at the ex-factory prices per se. United States v. Gitkin Co., 46 Cust. Ct. 788, A.R.D. 132; Louis Goldey Co., Inc. v. United States, 55 Cust. Ct. 759, A.R.D. 196; Renee Antiques, Inc., et al. v. United States, 56 Cust. Ct. 646, Reap. Dec. 11151. Under sections 402(b) and 402(f) (1) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, export value is the price at which the merchandise is freely sold, or offered for sale, to all" }, { "docid": "8560093", "title": "", "text": "not normally considered separable. Thus, to sustain its evidentiary burdens, plaintiff was required, in conformity with the statutory prescripts, to establish every element in the statutory definition of export value. S. S. Kresge Co. et al. v. United States, 45 Cust. Ct. 469, Reap. Dec. 9778; Bud Berman Sportswear, Inc. v. United States, 55 Cust. Ct. 574, Reap. Dec. 11056, affirmed United States v. Bud Berman Sportswear, Inc., 57 Cust. Ct. 733, A.R.D. 211, appeal pending; Valley Knitting Co., Inc., et al. v. United States, 44 Cust. Ct. 599, Reap. Dec. 9627. For the reasons hereinafter assigned, the court finds plaintiff’s proof deficient in several respects. Plaintiff’s initial claim that the invoice unit prices, rather than the appraised unit values, properly reflect the export value of the involved sisal pads is not substantiated by the evidence. As previously mentioned, plaintiff is charged with the burden of proving export value, that is to say, of showing, inter alia, that the merchandise in question was freely sold or, in the absence of sales, offered for sale in the principal markets of the exporting country. So far as is pertinent to the discussion of the issues in the case at bar, the term “freely sold or, in the absence of sales, offered for sale” is statutorily defined as follows: [Sec. 402, as amended.] (f) DEFINITIONS. — For the purposes of this section— (1) The term “freely sold or, in the absence of sales, offered for sale” means sold or, in the absence of sales, offered— ‡ ❖ % ‡ % (B) in the ordinary course of trade to one or more selected purchasers at wholesale at a price which fairly reflects the market value of the merchandise. without restrictions as to the disposition or use of the merchandise by the purchaser, except [certain minor restrictions not relevant to this inquiry]. Plaintiff’s exhibit 1 states in substance that, prior to the date of importation, plaintiff or its predecessor, the Heyman Co., purchased the entire output of the Progress Padding Co. and that, beginning with December of 1959, the producer increased its production so that" }, { "docid": "18700329", "title": "", "text": "Schroeder & Tremayne, Inc., et al., 41 CCPA 243, C.A.D. 558, and with respect to charges of the kind here involved, this rule was applied in the case of United States v. Dan Brechner & Co., 38 Cust. Ct. 719, A.R.D. 71, affirming Same v. Same, 36 Cust. Ct. 612, Reap. Dec. 8599. It was there held that an appraisement which in effect adopted invoiced ex-factory prices and separately stated additional charges, was sever-able, and that the question of the addition of the charges could be raised without disturbing the presumptively correct ex-factory prices, or requiring that such prices be established in accordance with the applicable statutory definition of value. This view lias been followed in the oases of United States v. Supreme Merchandise Company, 48 Cust. Ct. 714, A.R.D. 145; Haddad & Sons, v. United States, 53 Cust. Ct. 428, Reap. Dec. 10830; S. H. Kress & Co. et al. v. United States, 45 Cust. Ct. 566, Neap. Dec. 9853; United States v. Gitkin Co., 46 Cust. Ct. 788, A.R.D. 132. Where, however, the appraisement is not separable, then the burden rests with the party challenging it of establishing every material element in the case, and where an export value different from that returned by the appraiser is claimed, it is incumbent upon the plaintiff to show the price at which such or similar merchandise was freely sold or, in the absence of sales, offered for sale in the principal markets of the country of exportation in the usual wholesale quantities and in the ordinary course of trade. Valley Knitting Co., Inc., et al. v. United States, 44 Cust. Ct. 599, Reap. Dec. 9627; Haddad & Sons, Inc. v. United States, 53 Cust. Ct. 423, Reap. Dec. 10825. Generally speaking, in instances where the appraisement is expressed in terms of an f.o.b. port of exportation value, it is ordinarily not considered to be a separable appraisement and proof of an alternative value in accordance with the statutory definition has been required. The rule is expressed in S. S. Kresge Co. et al. v. United States, 45 Cust. Ct. 469," }, { "docid": "11629549", "title": "", "text": "and in the .ordinary course of trade, for exportation to the United States, and that part of the appraised value was represented by ex-factory prices and part by certain charges. It does not establish that the merchandise was freely sold, or offered for sale to all purchasers at the ex-factory prices, but rather that it was so sold or offered at prices equivalent to the ex-factory prices plus the charges. Plaintiff has the burden of •establishing that such or similar merchandise was freely sold, or offered for sale, to all purchasers at the ex-factory prices per se. United States v. Gitkin Co., 46 Cust. Ct. 788, A.R.D. 132; Louis Goldey Co., Inc. v. United States, 55 Cust. Ct. 759, A.R.D. 196; Renee Antiques, Inc., et al. v. United States, 56 Cust. Ct. 646, Reap. Dec. 11151. Under sections 402(b) and 402(f) (1) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, export value is the price at which the merchandise is freely sold, or offered for sale, to all purchasers at wholesale or, with certain restrictions, to selected purchasers at wholesale. Thus, evidence of sales to one purchaser, not a .selected purchaser, at ex-factory prices, is not suffidient to overcome ■ the presumption which attaches to the appraisement, that the merchandise was freely sold, or offered, to all purchasers only at prices which ' included certain charges. Unless all purchasers could buy at the ex-factory prices, such prices do not constitute the statutory export value. United States v. Gitkin Co., supra. The record in the instant case may be sufficient to establish prima facie that plaintiff purchased from the manufacturers at ex-factory prices. However, it falls far short of proving that the manufacturers, of which there were many, freely sold of offered their merchandise to all purchasers at ex-factory prices or that plaintiff was a selected purchaser. Mr. Maltz, the only witness who testified at the tria], did not have any information about offers to other purchasers and did not know whether his firm was an exclusive purchaser. The affidavits of the buying agents" }, { "docid": "13819100", "title": "", "text": "of proof of showing the 5% commission to be nondutiable, it is unnecessary to reach the issue relating to separability. The judgment of the Customs Court is affirmed. SEC. 402. VALUE. *•••*** (b) Export Value. — Eor the purposes ol this section, the export value of imported merchandise shall be the price, at the time of exportation to the united States of the merchandise undergoing appraisement, at which such or similar merchandise is freely sold or, in the absence of sales, offered for sale in the principal markets of the country of exportation, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States, plus, when not included in such price, the cost of all containers and coverings of whatever nature and all other expenses incidental to placing the merchandise in condition, packed ready for shipment to the United States. The separability rule in appraisemont oases has been explained in United States v. Supreme Merchandise Co., 48 Cust. Ct. 714, A.R.D. 145 (1962), quoted with approval most recently by this court in United States v. H. M. Young Associates, 62 CCPA 20, 23, C.A.D. 1138, 505 F. 2d 721, 724 (1974) as follows: If ex-factory prices and other charges are separately stated on the invoices and the appraiser’s finding of value is expressed in terms of the invoice unit prices, plus the questioned charges, the appraisement is deemed to be separable. United States v. Dan Brechner et al., 38 Cust. Ct. 719, A.R.D. 71 [1957]; United States v. Gitkin Co., [46 Cust. Ct. 788, A.R.D. 132 (1961)]; Valley Knitting Co., Inc., et al. v. United States, 44 Cust. Ct. 599, Reap. Dec. 9627 [1960], under the rule expressed in United States v. Fritzche Bros., Inc,, 35 C.P.A. (Customs) 60, C.A.D. 371 [1947], a party to a reappraisement proceeding may challenge one or more of the elements entering into an appraisement, while relying upon the presumption of correctness of the appraiser’s return as to all other elements, whenever the challenged items do not disturb the eflectof the remainder of the appraisement. Such is the" }, { "docid": "6604844", "title": "", "text": "without payment of the 5 percent. The commission was an integral part of the purchase price in the principal market at or prior to the time of shipment. It did not accrue subsequent to shipment. Whether or not the merchandise was freely offered for sale at ex-factory prices is doubtful; in any event, since there were sales, offers may not be considered under the language of section 402(b), supra. The commission was clearly not a buying commission and the weight of the evidence establishes that Export Shipping was not retained by the purchasers to act for them. In most cases they had no knowledge of its existence. Therefore, it cannot be said that it was their agent and that the services rendered by it were for their account. The services were rendered for the account of the seller, for whom the shipment was made and entered at Laredo and who offered the merchandise at a price which included the commission. Under these circumstances, the commission is an integral part of the purchase price and was properly included by the appraiser as a part of the export value of the merchandise. It must be remembered in the instant case, however, that all of the importations here involved were appraised on the basis of f.o.b. Texcoco prices and that the appellants are herein challenging only that portion of the appraisement which adds to those prices the 5 percent commission charged by Export Shipping. Under the principles first enunciated in the case of United States v. Fritzsche Bros., Inc., 35 CCPA 60, C.A.D. 371, and consistently followed in United States v. Schroeder & Tremayne, Inc., et al., 41 CCPA 243, C.A.D. 558; Dan Brechner et al. v. United States, 36 Cust. Ct. 612, Reap. Dec. 8599, affirmed United States v. Dan Brechner et al., 38 Cust. Ct. 719, A.R.D. 71; United States v. Supreme Merchandise Co., 48 Cust. Ct. 714, A.R.D. 145; and United States v. Gitkin Co., 46 Cust. Ct. 788, A.R.D. 132, such an appraisement is deemed to be separable, and a party challenging the additional charge may rely upon the" }, { "docid": "14604999", "title": "", "text": "Co., Inc., 41 CCPA 209, C.A.D. 553; Albert Mottola, etc. v. United States, 46 CCPA 17, C.A.D. 689; Dan Brechner et al. v. United States, 36 Cust. Ct. 612, Reap. Dec. 8599, affirmed United States v. Dan Brechner et al., etc., 38 Cust. Ct. 719, A.R.D. 71; Valley Knitting Co., Inc., et al. v. United States, 44 Cust. Ct. 599, Reap. Dec. 9627; United States v. Supreme Merchandise Company, 48 Cust. Ct. 714, A.R.D. 145; Haddad & Sons, Inc. v. United States, 53 Cust. Ct. 428, Reap. Dec. 10830. Generally speaking, the problem which occupied the attention of this and our appellate court in the cited cases was whether or not certain inland charges, such as inland freight and buying commissions accruing subsequent to the time when the merchandise in issue left the factory or principal markets, were properly included in the ascertainment of the value of the merchandise under consideration. In the Haddad case, supra, this member of the court entered upon a rather elaborate discussion of the rules governing this question, as applied in the cited decision, supra, and concluded that it must now be regarded as settled law that where it appears that merchandise is freely offered for sale on an ex-factory basis, the site of the factory being the principal market, charges subsequently accruing are not a part of the value of the goods in such market. They become so only if the merchandise is not freely sold or offered for sale at prices which do not include such charges. Another aspect of the problem discussed in some detail in the Haddad case was the quantum of proof necessary to establish the ultimate price at which such or similar merchandise was sold to all purchasers in the usual wholesale quantity and in the ordinary course of trade in the principal market of the country of exportation. It was further observed that where the appraisement is stated in terms of a first cost or ex-factory price, plus the disputed charges, the appraisement is considered to be separable, and the party challenging the appraiser’s return may rely upon" }, { "docid": "23341448", "title": "", "text": "the questioned charges, the appraisement is deemed to be separable. United States v. Dan Brechner et al., 38 Cust. Ct. 719, A.R.D. 71; United States v. Gitkin Co., supra; Valley Knitting Co., Inc., et al. v. United States, 44 Cust. Ct. 599, Reap. Dec. 9627. Under the rule expressed in United States v. Fritzsche Bros., Inc., 35 C.C.P.A. (Customs) 60, C.A.D. 371, a party to a reappraisement proceeding may challenge one or more of the elements entering into an appraisement, while relying upon the presumption of correctness of the appraiser’s return as to all other elements, whenever the challenged items do not disturb the effect of the remainder of the appraisement. Such is the case in the instance of an appraisement at ex-factory-plus-charges value, and the charges may be disputed without the necessity of proof that the ex-factory prices comply with the statutory definition of export value. United States v. Dan Brechner et al., supra. It is further well established, as stated by the trial court “that a charge for services associated with the purchase of merchandise in the foreign market, and which is not an amount that inures to the benefit of the seller, is a buying commission, which, although affecting the cost of goods to the importer, is not part of the market value of the merchandise. United States v. Case & Co., Inc., 13 Ct. Cust. Appls. 122, T.D. 40958; United States v. Alfred Kohlberg, Inc., 27 C.C.P.A. (Customs) 223, C.A.D. 88; Stein v. United States, 1 Ct. Cust. Appls. 36, T.D. 31007.” However, the bona fides of a buying commission is a question of fact to be determined from the evidence adduced in any particular case. United States v. Nelson Bead Co., 42 C.C.P.A. (Customs) 175, C.A.D. 590. Since, with respect to 14 of the 17 cases here involved, the appraise-ments were what we have termed separable, and subject to challenge with reference to the items of commission and shipping charges, the question arises whether the evidence suffices to show that the exporter of the merchandise at bar was a bona fide representative of the purchaser" }, { "docid": "14604998", "title": "", "text": "the usual wholesale quantities for industrial use or for resale otherwise than at retail; or, if there are no such purchasers, then all other purchasers for resale who buy in the usual wholesale quantities; or, if there are no purchasers in either of the foregoing categories, then all other purchasers who buy in the usual wholesale quantities. ****** * During the course of the trial, counsel for the Government advised the court that the appraiser’s action in returning a value of $0.17 per square foot for the instant merchandise derived from the so-called MITI check price, effective in Japan at the time of exportation. As will be developed, infra, however, it does not appear that cotton hooked rugs of the size here involved, to wit, 19 inches by 29 inches, were subject to the MITI regulations, or included in any price schedules approved by that body. Seemingly, this case is one which follows the pattern developed in a series of cases, including, but not limited to, the following: United States v. Paul A. Straub & Co., Inc., 41 CCPA 209, C.A.D. 553; Albert Mottola, etc. v. United States, 46 CCPA 17, C.A.D. 689; Dan Brechner et al. v. United States, 36 Cust. Ct. 612, Reap. Dec. 8599, affirmed United States v. Dan Brechner et al., etc., 38 Cust. Ct. 719, A.R.D. 71; Valley Knitting Co., Inc., et al. v. United States, 44 Cust. Ct. 599, Reap. Dec. 9627; United States v. Supreme Merchandise Company, 48 Cust. Ct. 714, A.R.D. 145; Haddad & Sons, Inc. v. United States, 53 Cust. Ct. 428, Reap. Dec. 10830. Generally speaking, the problem which occupied the attention of this and our appellate court in the cited cases was whether or not certain inland charges, such as inland freight and buying commissions accruing subsequent to the time when the merchandise in issue left the factory or principal markets, were properly included in the ascertainment of the value of the merchandise under consideration. In the Haddad case, supra, this member of the court entered upon a rather elaborate discussion of the rules governing this question, as applied" }, { "docid": "23341447", "title": "", "text": "that where merchandise is offered for sale and sold on an f.o.b. port of exportation basis, and is never sold or offered for sale at ex-factory prices, the inland charges incurred in transporting merchandise from the factory to the f.o.b. point form an integral part of the value of such merchandise. Where, however, ex-factory sales are shown, and it is established that such or similar merchandise is freely offered for sale to all purchasers, in the usual wholesale quantities and in the ordinary course of trade, at ex-factory prices, freight and other charges subsequently accruing are not elements entering into the determination of export value. United States v. Gitkin Co., 46 Cust. Ct. 788, A.R.D. 132. Moreover, the extent to which ex-factory sales need be proven depends upon the method employed to invoice the goods, and the way in which the appraiser makes his return of value. If ex-factory prices a,nd otter charges are separately stated on the invoices and the appraiser’s finding of value is expressed in terms of the invoice unit prices, plus the questioned charges, the appraisement is deemed to be separable. United States v. Dan Brechner et al., 38 Cust. Ct. 719, A.R.D. 71; United States v. Gitkin Co., supra; Valley Knitting Co., Inc., et al. v. United States, 44 Cust. Ct. 599, Reap. Dec. 9627. Under the rule expressed in United States v. Fritzsche Bros., Inc., 35 C.C.P.A. (Customs) 60, C.A.D. 371, a party to a reappraisement proceeding may challenge one or more of the elements entering into an appraisement, while relying upon the presumption of correctness of the appraiser’s return as to all other elements, whenever the challenged items do not disturb the effect of the remainder of the appraisement. Such is the case in the instance of an appraisement at ex-factory-plus-charges value, and the charges may be disputed without the necessity of proof that the ex-factory prices comply with the statutory definition of export value. United States v. Dan Brechner et al., supra. It is further well established, as stated by the trial court “that a charge for services associated with the purchase" } ]

[ { "docid": "13695654", "title": "", "text": "enacting Title VII are germane to this case. Quoting Griggs, the Court declared: A disparate impact claim reflects the language of § 703(a)(2) and Congress’ basic objectives in enacting that statute: ‘to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.’. .. In other words, § 703(a)(2) prohibits discriminatory ‘artificial, arbitrary, and unnecessary barriers to employment,’ ... that ‘limit ... or classify .. . applicants for employment ... in any way which would deprive or tend to deprive any individual of employment opportunities’ Connecticut v. Teal, 102 S.Ct. at 2531-32 (emphasis in original). The Court again emphasized Title VII’s focus on equal employment opportunities: Title VII guarantees these individual respondents the opportunity to compete equally with white workers on the basis of job-related criteria. Title VII strives to achieve equality of opportunity by rooting out ‘artificial, arbitrary and unnecessary’ employer-created barriers to professional development that have a discriminatory impact upon individuals. Id. 102 S.Ct. at 2533. (emphasis in original). The artificial barrier to which the Court referred in Teal was a promotional test that was not. job-related. The case before us involves two promotional tests. Neither test was validated nor was considered to be as job-related as the City would have liked. J.A. at 883, 897-98. However, the barrier to equal employment opportunities here is not so much the isolated tests as it is the overall process firefighters undergo to achieve promotion. The barrier encompasses the interrelationship among the racially biased method of assigning firefighters to administrative jobs, the advantage to promotional test-takers provided by the experience acquired on these jobs, jobholders’ superior performance on the promotional exams and their disproportionately greater rates of promotion among white administrative jobholders over minorities. Like Teal, this case also involves a governmental policy of affirmative action. However, evidence of the government’s good faith effort to achieve a nondiscriminatory workforce was stronger in Teal where the government actually promoted minority employees in greater proportion than it did white employees. The government’s policy in the instant case failed to" } ]

[ { "docid": "17674114", "title": "", "text": "to rehire former employees was left solely to the discretion of the foreman, for whom no guidelines were set forth. The Sixth Circuit held that employment decisions based on such subjective criteria could be analyzed under the disparate impact theory. Id. at 93. The defendants cite Pouncy v. Prudential Insurance Co. of America, 668 F.2d 795 (5th Cir.1982) as standing for the contrary view that subjective employment practices are not suitable for disparate impact analysis. In Pouncy, the plaintiff attempted to challenge three employment practices under the disparate impact theory: (1) the failure to post job vacancies; (2) the policy of promotion from within; and (3) the use of subjective criteria in employment evaluations. The Fifth Circuit explained that the disparate impact model applies only where an employer has instituted a specific procedure, usually a selection criteria for employment, that can be shown to have a causal connection to a class imbalance in the work force. Id. at 808. The court held that the disparate impact model was not appropriate in that ease because the plaintiff had not shown “that a facially neutral employment practice ... falls more harshly on black employees.” Id. at 801. The Fifth Circuit subsequently interpreted Pouncy as holding that Title VII challenges to subjective employment practices may not be evaluated under the disparate impact model. Carpenter v. Stephen F. Austin State University, 706 F.2d 608, 620 (5th Cir.1983). As the above cases demonstrate, there is a conflict between the circuits as to whether the disparate impact model can be used to evaluate subjective employment practices. While there is no clear law on this issue in the Second Circuit, that court has indicated that it may follow the Pouncy approach. In Zahorik v. Cornell University, 729 F.2d 85 (2d Cir.1984), the court stated that the “disparate impact theory has been used mainly in the context of quantifiable or objectively verifiable selection criteria which are mechanically applied and have consequences roughly equivalent to results obtaining under systematic discrimination.” Id. at 95. The court cited Pouncy for the proposition that “[plaintiffs who allege a forbidden disparate impact are" }, { "docid": "22932586", "title": "", "text": "(5th Cir.1980) (applying disparate impact analysis to index review system involving subjective elements); Rowe v. General Motors Corp., 457 F.2d 348, 354-55 (5th Cir.1972) (applying disparate impact analysis to promotion system involving foreman’s recommendations). Even if we were not bound by these decisions to allow application of disparate impact analysis to the end result of a multi-component promotion process and to processes involving subjective elements, we would still be inclined not to follow the decision of the current Fifth Circuit in Pouncy. The Supreme Court first articulated the disparate impact model of discrimination, under which proof of discriminatory intent is not necessary, in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). In Griggs, the Court indicated that Title VII requires “the removal of artificial, arbitrary, and unnecessary barriers to employment” which “operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.” Id. at 431-32, 91 S.Ct. at 853-54. The Court in Griggs did not differentiate between objective and subjective barriers, and, in fact, the Court made frequent references to “practices” and “procedures,” terms that clearly encompass more than isolated, objective components of the overall process. In the recent case of Connecticut v. Teal, 457 U.S. 440, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982), the Supreme Court held that the “bottom line” result of a promotional process could not be used as a defense to a disparate impact challenge to a particular selection procedure used in that promotion process. The Court emphasized the holding in Griggs that Title VII requires the elimination of “artificial, arbitrary, and unnecessary barriers to employment,” and again did not differentiate between objective and subjective criteria nor give any indication that a disparate impact challenge could not be made to a promotional system as a whole. See 457 U.S. at 448-452, 102 S.Ct. at 2532-2534. The Court noted the legislative history of the 1972 amendments to Title VII, 86 Stat. 103-113, which extended Title VII to federal government employees. The Court pointed out that Congress recognized and endorsed the disparate impact analysis employed in Griggs. The" }, { "docid": "3066822", "title": "", "text": "the hiring and promotion class claims under the disparate treatment model instead of under the disparate impact model. We examine discrimination claims using the disparate impact model when employment practices are “facially neutral in their treatment of different groups but ... in fact fall more harshly on one group than another and cannot be justified by business necessity.” International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). Although class action plaintiffs may challenge subjective or discretionary employment practices under' the disparate impact model, Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990, 108 S.Ct. 2777, 2786-87, 101 L.Ed.2d 827 (1988), the use of subjective or discretionary decision-making does not itself create an inference of discriminatory conduct. Id. at 999, 108 S.Ct. at 2791 (plurality opinion). Instead, “the plaintiffs burden in establishing a prima facie case [of discrimination] goes beyond the need to show that there are statistical disparities in the employer’s work force. The plaintiff must begin by identifying the specific employment practice that is challenged.... Especially in cases where an.employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.” Wards Cove Packaging Co. v. Atonio, 490 U.S. 642, 656, 109 S.Ct. 2115, 2124, 104 L.Ed.2d 733 (1989) (quoting Watson, 487 U.S. at 994, 108 S.Ct. at 2788-89). Thus, “[t]he disparate impact model applies only when an employer has instituted a specific procedure, usually a selection criterion for employment, that can be shown to have a causal connection to a class based imbalance in the work force.” Pouncy v. Prudential Ins. Co., 668 F.2d 795, 800 (5th Cir.1982); see also Wards Cove, 490 U.S. at 657-58, 109 S.Ct. at 2125 (noting that a plaintiff alleging a discriminatory impact claim must “specifically show[] that each challenged practice has a significantly disparate impact on employment opportunities for whites and nonwhites”). The district court refused to analyze the plaintiffs’" }, { "docid": "4938069", "title": "", "text": "only when an employer has instituted a specific procedure, usually a selection criterion for employment, that can be shown to have a causal connection to a class based imbalance in the work force.” Id. Accordingly, the Fifth Circuit in Pouncy was of the view that the disparate impact model was not applicable to any of the three “employment practices” singled out by the plaintiffs in that case — the failure to post job opening, the use of a level system, and evaluating employees with subjective criteria. Id. at 801. That court reasoned that “proof that a specific practice results in a discriminatory impact on a class in an employer’s work force” is required “in order to allocate fairly the parties’ respective burdens of proof at trial.” Id. at 800. Thus, the plaintiff must prove a disparate impact due to the selection procedure; then the employer must prove that the selection procedure is justified by a legitimate business reason. Johnson, 657 F.2d at 753. As originally conceived in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the disparate impact theory applies to an “overt, clearly identified nondiscretionary selection criteri[on] that [was] applied at a single point in a selection process.” Pouncy, 668 F.2d at 800, quoting D. Baldus & J. Cole, Statistical Proof of Discrimination § 1.23 at 12 (1981 Supp.) See Griggs, 401 U.S. at 424, 91 S.Ct. at 849- (disparate impact analysis properly used to challenge aptitude and intelligence tests and educational requirements); see Dothard, 433 U.S. at 321, 97 S.Ct. at 2720 (disparate impact analysis applied to challenge height and weight requirements); see New York City Transit Authority v. Beazer, 440 U.S. 568, 99 S.Ct. 1355, 59 L.Ed.2d 587 (1979) (disparate impact model applied to challenge an employer’s refusal to employ persons who use methodone); compare Carpenter v. Stephen F. Austin State Univ., 706 F.2d 608, 620 (5th Cir.), reh’g and reh’g en banc denied, 712 F.2d 1416 (5th Cir.1983) (requires discriminatory treatment model, requiring proof of discriminatory intent, be applied in determining whether the obviously disparate effects of two channeling" }, { "docid": "3644295", "title": "", "text": "challenge multiple employment practices simultaneously, and is not “the appropriate vehicle from which to launch a wide ranging attack on the cumulative effect of a company’s employment practices. Nor may just any employment practice be challenged under this model simply because an uneven racial balance exists in an employer’s work force.” Pouncy v. Prudential Insurance Company, 668 F.2d 795, 800 (5th Cir.1982). See also Pegues v. Mississippi State Employment Service, 699 F.2d 760 (5th Cir.1983). According to Pouncy, a subjective classification practice that depends on the employer’s discretionary decisions is not included within the category of facially neutral procedures — such as the high school educational requirement in this case — whose discriminatory impact may be isolated and thus specifically shown to have a causal connection to a class-based imbalance in the work force so as to require no further proof of discriminatory motivation or intent. In Pouncy, the court determined that employment practices (similar to those complained of in the present case) — the failure to post job openings, use of a level system, and evaluations of employees with subjective criteria — that resulted in the overrepresentation of the protected group in the lower levels of the work force, did not constitute “proof of a causal connection” under the disparate impact model sufficient to establish employment discrimination prohibited by Title VII. 668 F.2d at 801. The difficulty we face with regard to the district court’s findings as to the discriminatory Title VII violations through the latter two channeling practices is that, measuring Title VII violation under the disparate impact model, it made no express findings as to discriminatory intent motivating them. Since under Pouncy the Title VII discrimination must be measured under the disparate treatment model, “[p]roof of discriminatory motive is critical”, although, however, “in some situations it can be inferred from the mere fact of differences in treatment.” Teamsters, 431 U.S. at 333 n. 15, 97 S.Ct. at 1854 n. 15. From the record before us, discriminatory intent might be inferred from the gross race and gender stratification disparities that resulted from entrustment of assignment and promotion determinations" }, { "docid": "3644294", "title": "", "text": "of Title VII, 42 U.S.C. § 2000e-2(a)(2), since they “limit, segregate, or classify” employees in a manner that “would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee” because of race or sex. See note 7 supra. Nevertheless, subsequent to the district court’s decision and the lodging of this appeal, a decision of this court, Pouncy v. Prudential Insurance Company, 668 F.2d 795 (5th Cir.1982), to be discussed below, now requires that the discriminatory treatment model, requiring proof of discriminatory intent, be applied in determining whether the obviously disparate effects of the other two channeling practices — the systematic assignment of lower compensated employment to blacks and women in the Classified Pay Plan, and the use of subjectivity in implementation of job qualifications for initial job assignment and promotion and the placement of employees on the compensation scale — nevertheless reflected race and gender discrimination prohibited by Title VII. In Pouncy, we held the disparate impact model of proof is not to be used to challenge multiple employment practices simultaneously, and is not “the appropriate vehicle from which to launch a wide ranging attack on the cumulative effect of a company’s employment practices. Nor may just any employment practice be challenged under this model simply because an uneven racial balance exists in an employer’s work force.” Pouncy v. Prudential Insurance Company, 668 F.2d 795, 800 (5th Cir.1982). See also Pegues v. Mississippi State Employment Service, 699 F.2d 760 (5th Cir.1983). According to Pouncy, a subjective classification practice that depends on the employer’s discretionary decisions is not included within the category of facially neutral procedures — such as the high school educational requirement in this case — whose discriminatory impact may be isolated and thus specifically shown to have a causal connection to a class-based imbalance in the work force so as to require no further proof of discriminatory motivation or intent. In Pouncy, the court determined that employment practices (similar to those complained of in the present case) — the failure to post job openings, use of a level system," }, { "docid": "17674113", "title": "", "text": "to promote him to any of three GS-12 level positions. The action challenged the validity of a promotion system whereby supervisors determined the hiring criteria for a job on an ad hoc basis. A committee then reviewed the candidates for the position, ranked them based on the stated criteria, and then forwarded names of the highly ranked candidates to the department supervisor for final selection. The Ninth Circuit noted that the supervisors could manipulate the selection criteria to serve discriminatory purposes, and that “[s]ome seemingly objective criteria for hiring or promotion may have an inherently disproportionate impact.” 694 F.2d at 1149. The court remanded the case for evaluation under the disparate impact theory. Plaintiffs also rely on Rowe v. Cleveland Pneumatic Co., Numerical Control, Inc., 690 F.2d 88 (6th Cir.1982), where the plaintiff’s former employer refused to rehire the plaintiff following a layoff. For hiring new employees, the employer required that the company’s personnel manager, production superintendent, production manager and production foreman all examine the applicant’s experience, training, references and appearance. The determination of whether to rehire former employees was left solely to the discretion of the foreman, for whom no guidelines were set forth. The Sixth Circuit held that employment decisions based on such subjective criteria could be analyzed under the disparate impact theory. Id. at 93. The defendants cite Pouncy v. Prudential Insurance Co. of America, 668 F.2d 795 (5th Cir.1982) as standing for the contrary view that subjective employment practices are not suitable for disparate impact analysis. In Pouncy, the plaintiff attempted to challenge three employment practices under the disparate impact theory: (1) the failure to post job vacancies; (2) the policy of promotion from within; and (3) the use of subjective criteria in employment evaluations. The Fifth Circuit explained that the disparate impact model applies only where an employer has instituted a specific procedure, usually a selection criteria for employment, that can be shown to have a causal connection to a class imbalance in the work force. Id. at 808. The court held that the disparate impact model was not appropriate in that ease because the" }, { "docid": "9840073", "title": "", "text": "population. The Court does not consider that the lack of evidence as to how the “available work force” figures were determined is problematic within the factual framework of the instant case. . A Title VII action may be based on either a theory of disparate impact or disparate treatment or both. See Eastland v. Tennessee Valley Authority, 704 F.2d 613 (11th Cir.1983). Proof of discriminatory intent is essential to the latter. International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 335-36 n. 15, 97 S.Ct. 1843, 1854-1855 n. 15, 52 L.Ed.2d 396 (1977), while in a disparate impact case the focus is on a facially neutral employment practice and the employer’s intent is irrelevant. Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). Plaintiffs have sought to challenge Winn-Dixie’s promotional and training practices under a disparate impact model, on the theory that the discretionary use of subjective criteria by white supervisors has an adverse impact upon blacks’ promotion and training opportunities, without regard to the employer’s intent. The Eleventh Circuit has recently noted that the application of a disparate impact test to a case involving subjective promotion procedures is “troublesome”. Eastland v. TVA, supra, despite some former Fifth Circuit precedent to the contrary. See Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.1972); Wade v. Mississippi Cooperative Extension Service, 528 F.2d 508 (5th Cir.1976). In Pouncy v. Prudential Insurance Co. of America, 668 F.2d 795 (5th Cir.1982), the new Fifth Circuit rejected the application of the disparate impact model to an attack on the use of subjective evaluation criteria, and stated that disparate impact analysis applies only to a specific, discrete employment practice or procedure, such as an aptitude test or educational requirement, the impact of which on a protected class can objectively be measured. See also the Court’s Order denying class certification in this case. Nation v. Winn-Dixie Stores, Inc., 95 F.R.D. 82, 87 (N.D.Ga.1982). For the reasons stated in this Court’s Order denying class certification, id., as well as for the reasons set forth in Pouncy, supra and Eastland v. TVA," }, { "docid": "7156490", "title": "", "text": "2088-97, 2133. There is no error in allowing the wage book into evidence when the plaintiffs had access to all the information contained in it. We also find that the district court did not err in accepting testimony that promotion at Sears is usually within EEO categories. The parties did stipulate in the pre-trial order that Sears “routinely transfers employees to different departments” within the Shreveport facilities, but this is not a concession by Sears that transfers between departments are the usual practice at Sears. There is a difference between a usual practice and a permitted departure from that practice which is routine. The pre-trial stipulation did not preclude Sears from proving this point or prevent the district court from considering it. III. The Class Claim A. Disparate Impact The plaintiffs contend that the evidence presented to the district court established a prima facie case of racial discrimination under the disparate impact theory in the hiring, promotion, job classification, training, termination, and testing practices of Sears. We conclude, however, that the proof adduced at trial does not fit the disparate impact model. The use of subjective criteria to evaluate employees in hiring and job placement decisions is not within the category of facially neutral procedures to which the disparate impact model is applied. Carpenter v. Stephen F. Austin State University, 706 F.2d 608 (5th Cir. 1983); Pegues v. Mississippi State Employment Service, 669 F.2d 760, 765 (5th Cir. 1983); Pouncy v. Prudential Insurance Co. of America, 5 Cir.1982, 668 F.2d 795, 800— 01; Dickens & Beaver, Disparate Treatment & Disparate Impact Under Title VII — The Difference, Evidentia, Aug. 1982, at 1; see generally D. Baldus & J. Cole, Statistical Proof of Discrimination §§ 1.23 & 1.25 (1980 & Supp.1982) [“Baldus & Cole”]. With respect to training, promotion, termination, and job classification, the plaintiffs have failed to focus on a facially neutral, objective employment practice that the disparate impact model was designed to; test. Under Pouncy, the disparate impact model can no longer serve as a “vehicle from which to launch a wide ranging attack on the cumulative effect of" }, { "docid": "22932582", "title": "", "text": "II. DISMISSAL OF DISPARATE IMPACT CLAIMS In the court below plaintiffs sought to rely on a disparate impact theory as well as on a disparate treatment theory. Plaintiffs sought to apply the disparate impact theory both to the final results of the multi-component promotion process and to several component parts of that process, including promotion advisory boards, awards, and discipline. In its order of September 8, 1982, the district court granted defendant’s motion to dismiss all claims by plaintiff based on a disparate impact theory. The court found that disparate impact analysis is appropriate only to challenge objective, facially neutral employment practices, and not to challenge either the cumulative effect of employment practices or subjective decision-making. The court further found that plaintiffs’ pleadings had failed to put defendants on notice as to which employment practices would be challenged on a disparate impact theory. The district court relied on Pouncy v. Prudential Insurance Company of America, 668 F.2d 795 (5th Cir.1982), and on Harris v. Ford Motor Co., 651 F.2d 609 (8th Cir.1981). In Harris, the Eighth Circuit held that a subjective decision-making system cannot alone form the foundation for a disparate impact case. Id. at 611. In Pouncy, the Fifth Circuit stated: The discriminatory impact model of proof in an employment discrimination case is not, however, the appropriate vehicle from which to launch a wide ranging attack on the cumulative effect of a company’s employment practices____ We require proof that a specific practice results in a discriminatory impact on a class in an employer’s work force in order to allocate fairly the parties’ respective burdens of proof at trial____ Identification by the aggrieved party of the specific employment practice responsible for the disparate impact is necessary so that the employer can respond by offering proof of its legitimacy. Id. at 800-01. A recent Eleventh Circuit decision referred to the Pouncy case and indicated that use of the disparate impact model to attack the excessive subjectivity of a personnel system is “troublesome.” The court stated, however: Former Fifth Circuit precedent, however, indicates that subjective selection and promotion procedures may be attacked" }, { "docid": "7156492", "title": "", "text": "a company’s employment practices.” Pouncy, 668 F.2d at 800. We must therefore analyze the. plaintiffs’ challenge to Sears’s employment; practices under the disparate treatment! model. The only employment practice subject to analysis under the disparate impact model is Sears’s testing of employees. See Griggs v. Duke Power Co., 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158; Pouncy, 668 F.2d at 800. The use of a test is a specific, facially neutral selection criterion that can be shown to have a causal connection to a racial imbalance in the work force. This selection criterion is the kind of employment practice to which the disparate impact model traditionally has applied. At trial, the plaintiffs presented evidence that Sears’s employment tests were not job related and that blacks on the average scored much lower than whites. Sears responded with testimony that its tests were job-related, properly validated, and non-discriminatory. The district court, however, did not shift the burden to Sears to prove job relatedness because of its finding that Sears did not discriminate against blacks in its hiring and promotion practices. The district court also found that the tests did not select applicants for hire, but were only one factor in hiring or promotion decisions. We also find that the plaintiffs failed to make a prima facie showing of discrimination against blacks in hiring or promotion as a result of the tests used at Sears. The flaw in the plaintiffs’ proof was its failure to establish the required causal connection between the challenged employment practice (testing) and discrimination in the work force. See Pouncy, 668 F.2d at 801. Because the test does not have a cut-off and is only one of many factors in decisions to hire or promote, the fact that blacks score lower does not automatically result in disqualification of disproportionate numbers of blacks as in cases involving cut-offs. In Griggs, for example, applicants were required to achieve a minimum satisfactory score on two professionally prepared aptitude tests to qualify for placement. Griggs, 401 U.S. at 427-28, 91 S.Ct. at 851-52, 28 L.Ed.2d at 162. In this case, unlike" }, { "docid": "8439298", "title": "", "text": "the evidence presented by plaintiffs clearly related to the impact caused by defendant’s promotional system on a class of employees. The court accordingly rejected defendant’s suggestion that this case be viewed as “merely an accumulation of disparate treatment cases.” Citing Teamsters, the court noted that either theory may be applicable to the same set of facts and that the facts of this case were conducive to analysis under either model. See 431 U.S. at 335 n. 15, 97 S.Ct. at 1854 n. 15. Consequently, the court chose to analyze the plaintiffs’ claims also under the disparate treatment theory. The court concluded that the plaintiffs had failed to prove discrimination under this theory as well. Plaintiffs argue that their case is correctly viewed as a disparate impact case but that the court erred in deciding that plaintiffs failed to sustain their burden of proof under this theory. Wyatt argues that the district court should have analyzed the plaintiffs’ claims solely under the disparate treatment theory. The defendant bases this contention on our recent decisions in Pouncy v. Prudential Ins. Co., 668 F.2d 795 (5th Cir.1982) and Pegues v. Mississippi State Employment Service, 699 F.2d 760 (5th Cir.), cert, denied,-U.S.-, 104 S.Ct. 482, 78 L.Ed.2d 679 (1983). In both of these decisions we concluded that employment practices which rely on subjective selection criteria should be analyzed under the disparate treatment theory. In Pegues we stated: Because the classification and referral practices complained of effectively turn on discretionary decisions, they do not fall within the category of facially neutral procedures to which the disparate impact model is traditionally applied. Pouncy v. Prudential Ins. Co. of America, 668 F.2d 795 (5th Cir.1982); C. Sullivan, M. Zim-mer and R. Richards, Federal Statutory Law of Employment Discrimination, § 1.5(c) (1980). Selection processes which rely on subjective judgments, despite the corralling by objective standards, provide the opportunity for the intentional discrimination cognizable in a disparate treatment action. See Payne v. Travenol Laboratories, Inc. 699 F.2d at 765. See also Carroll v. Sears Roebuck & Co., 708 F.2d 183, 188 (5th Cir. 1983) (“The use of subjective criteria" }, { "docid": "13527829", "title": "", "text": "plaintiff’s statistical proof is unacceptable. EEOC v. Datapoint Corp., 570 F.2d 1264, 1269-70 (5th Cir.1978). 1. Disparate impact model Eastland attacks OACD’s personnel system under both disparate impact and disparate treatment theories. According to TV A, the attack on the excessive subjectivity of OACD’s personnel system fails to identify a specific facially neutral employment practice that can be appropriately tested under the disparate impact model. TVA relies on Pouncy v. Prudential Insurance Co., 668 F.2d 795 (5th Cir.1982). In Pouncy the court states: The discriminatory impact model of proof in an employment discrimination case is not, however, the appropriate vehicle from which to launch a wide ranging attack on the cumulative effect of a company’s employment practices. Nor may just any employment practice be challenged under this model simply because an uneven racial balance exists in an employer’s work force. We require proof that a specific practice results in a discriminatory impact on a class in an employer’s work force in order to allocate fairly the parties’ respective burdens of proof at trial. The aggrieved party must prove a disparate impact due to the selection procedure. The employer then has the burden of proving that the selection procedure is justified by a legitimate business reason. Johnson, 657 F.2d at 753. Identification by the aggrieved party of the specific employment practice responsible for the disparate impact is necessary so that the employer can respond by offering proof of its legitimacy. “Knowledge of a legitimate business reason is uniquely available to the employer who is . .. required to persuade the court of its existence by a preponderance of the evidence.” Id. None of the three Prudential “employ-\" ment practices” singled out by the appellant — the failure to post job openings, the use of a level system, and evaluating employees with subjective criteria — are akin to the “facially neutral employment practices” the disparate impact model was designed to test. Unlike educational requirements, aptitude tests, and the like, the practices identified by Pouncy are not selection procedures to which the disparate impact model traditionally has applied. See 3 A. Larson &" }, { "docid": "7156491", "title": "", "text": "does not fit the disparate impact model. The use of subjective criteria to evaluate employees in hiring and job placement decisions is not within the category of facially neutral procedures to which the disparate impact model is applied. Carpenter v. Stephen F. Austin State University, 706 F.2d 608 (5th Cir. 1983); Pegues v. Mississippi State Employment Service, 669 F.2d 760, 765 (5th Cir. 1983); Pouncy v. Prudential Insurance Co. of America, 5 Cir.1982, 668 F.2d 795, 800— 01; Dickens & Beaver, Disparate Treatment & Disparate Impact Under Title VII — The Difference, Evidentia, Aug. 1982, at 1; see generally D. Baldus & J. Cole, Statistical Proof of Discrimination §§ 1.23 & 1.25 (1980 & Supp.1982) [“Baldus & Cole”]. With respect to training, promotion, termination, and job classification, the plaintiffs have failed to focus on a facially neutral, objective employment practice that the disparate impact model was designed to; test. Under Pouncy, the disparate impact model can no longer serve as a “vehicle from which to launch a wide ranging attack on the cumulative effect of a company’s employment practices.” Pouncy, 668 F.2d at 800. We must therefore analyze the. plaintiffs’ challenge to Sears’s employment; practices under the disparate treatment! model. The only employment practice subject to analysis under the disparate impact model is Sears’s testing of employees. See Griggs v. Duke Power Co., 1971, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158; Pouncy, 668 F.2d at 800. The use of a test is a specific, facially neutral selection criterion that can be shown to have a causal connection to a racial imbalance in the work force. This selection criterion is the kind of employment practice to which the disparate impact model traditionally has applied. At trial, the plaintiffs presented evidence that Sears’s employment tests were not job related and that blacks on the average scored much lower than whites. Sears responded with testimony that its tests were job-related, properly validated, and non-discriminatory. The district court, however, did not shift the burden to Sears to prove job relatedness because of its finding that Sears did not discriminate against blacks in" }, { "docid": "4938068", "title": "", "text": "a plaintiff need only show that a facially neutral employment practice produces a significant adverse impact on one race. Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977). A prima facie case is shown by identification of a neutral employment practice coupled with proof of its discriminatory impact on the employer’s work force. Johnson v. Uncle Ben’s, Inc., 657 F.2d 750, 753 (5th Cir.), reh’g and reh’g en banc denied, 667 F.2d 92 (5th Cir. 1981), cert. denied, 459 U.S. 967, 103 S.Ct. 293, 74 L.Ed.2d 277 (1982). The Fifth Circuit has stated: [t]he discriminatory impact model of proof in an employment discrimination case is not, however, the appropriate vehicle from which to launch a wide ranging attack on the cumulative effect of a company’s employment practices. Nor may just any employment practice be challenged under this model simply because an uneven racial balance exists in an employer’s work force. Pouncy v. Prudential Ins. Co. of America, 668 F.2d 795, 800 (5th Cir.1982). Thus, “[t]he disparate impact model applies only when an employer has instituted a specific procedure, usually a selection criterion for employment, that can be shown to have a causal connection to a class based imbalance in the work force.” Id. Accordingly, the Fifth Circuit in Pouncy was of the view that the disparate impact model was not applicable to any of the three “employment practices” singled out by the plaintiffs in that case — the failure to post job opening, the use of a level system, and evaluating employees with subjective criteria. Id. at 801. That court reasoned that “proof that a specific practice results in a discriminatory impact on a class in an employer’s work force” is required “in order to allocate fairly the parties’ respective burdens of proof at trial.” Id. at 800. Thus, the plaintiff must prove a disparate impact due to the selection procedure; then the employer must prove that the selection procedure is justified by a legitimate business reason. Johnson, 657 F.2d at 753. As originally conceived in Griggs v. Duke Power Co., 401 U.S. 424," }, { "docid": "17674115", "title": "", "text": "plaintiff had not shown “that a facially neutral employment practice ... falls more harshly on black employees.” Id. at 801. The Fifth Circuit subsequently interpreted Pouncy as holding that Title VII challenges to subjective employment practices may not be evaluated under the disparate impact model. Carpenter v. Stephen F. Austin State University, 706 F.2d 608, 620 (5th Cir.1983). As the above cases demonstrate, there is a conflict between the circuits as to whether the disparate impact model can be used to evaluate subjective employment practices. While there is no clear law on this issue in the Second Circuit, that court has indicated that it may follow the Pouncy approach. In Zahorik v. Cornell University, 729 F.2d 85 (2d Cir.1984), the court stated that the “disparate impact theory has been used mainly in the context of quantifiable or objectively verifiable selection criteria which are mechanically applied and have consequences roughly equivalent to results obtaining under systematic discrimination.” Id. at 95. The court cited Pouncy for the proposition that “[plaintiffs who allege a forbidden disparate impact are required to prove a causal connection between the challenged selection criterion and the disparate impact itself____” Id. The court found that the plaintiffs, who challenged the subjective criteria used for university tenure evaluations, failed to show that the challenged procedures produced any discriminatory effects: “evidence of systematic exclusion by the mechanical application of facially neutral criteria is necessary.” Id. at 96. Zahorik suggests that in the Second Circuit, subjective employment practices can rarely, if ever, be challenged under the disparate impact theory. However, even if Hung Ping Wang and Rowe were to be followed in this circuit, they are distinguishable from the present case. Neither ease was a class action. In both cases, the plaintiffs attacked a specific selection procedure for promotion or hiring at a single level: in Hung Ping Wang it was the procedure for a grade GS-11 to GS-12 promotion, and in Rowe, it was the procedure for hiring entry-level production employees. In the present case, plaintiffs are challenging employment decisions in areas such as promotion, training, transfer and compensation, made at" }, { "docid": "4957694", "title": "", "text": "of their race.” Plaintiff’s Complaint at 3. As stated recently in Pouncy v. Prudential Ins. Co. of America, 668 F.2d 795 (5th Cir. 1982), however: The discriminatory impact model of proof in an employment discrimination case is not, however, the appropriate vehicle from which to launch a wide ranging attack on the cumulative effect of a company’s employment practices. Nor may just any employment practice be challenged under this model simply because an uneven racial balance exists in an employer’s work force. As originally conceived in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 .. . the disparate impact theory applied to an ‘overt, clearly identified nondiscretionary selection criteri[on] that [was] applied at a single point in a selection process.’ D. Baldus & J. Cole, Statistical Proof of Discrimination § 1.23, at 12 (1981 Supp.). Although some courts have used the disparate impact model of proof to challenge multiple employment practices simultaneously, see id., this is an incorrect use of the model. The disparate impact model applies only when an employer has instituted a specific procedure, usually a selection criterion for employ ment, that can be shown to have a causal connection to a class based imbalance in the work force. Id. at 800. Upon reviewing carefully plaintiff’s complaint and the class allegations contained therein, it is clearly evident that plaintiff contends broadly that defendant discriminated against Blacks in administrative and faculty positions by treating them differently from its White employees in those positions. Accordingly, as recognized by the appellate court in Pouncy v. Prudential Ins. Co. of America, supra at 800-02, the class allegation must be established through the disparate treatment standard of proof. Thus, proof of discriminatory motive is required. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 1854 n.15, 52 L.Ed.2d 396 (1977); Pouncy v. Prudential Ins. Co. of America, supra, at 802; Johnson v. Uncle Ben’s , Inc., 657 F.2d 750, 752 (5th Cir. 1981); Wilkins v. University of Houston, 654 F.2d 388, 395 (5th Cir. 1981). In addition to proof of a" }, { "docid": "3066823", "title": "", "text": "the specific employment practice that is challenged.... Especially in cases where an.employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.” Wards Cove Packaging Co. v. Atonio, 490 U.S. 642, 656, 109 S.Ct. 2115, 2124, 104 L.Ed.2d 733 (1989) (quoting Watson, 487 U.S. at 994, 108 S.Ct. at 2788-89). Thus, “[t]he disparate impact model applies only when an employer has instituted a specific procedure, usually a selection criterion for employment, that can be shown to have a causal connection to a class based imbalance in the work force.” Pouncy v. Prudential Ins. Co., 668 F.2d 795, 800 (5th Cir.1982); see also Wards Cove, 490 U.S. at 657-58, 109 S.Ct. at 2125 (noting that a plaintiff alleging a discriminatory impact claim must “specifically show[] that each challenged practice has a significantly disparate impact on employment opportunities for whites and nonwhites”). The district court refused to analyze the plaintiffs’ hiring and promotion claims using the disparate impact model because they did not identify a specific aspect of subjective decision-making by D & L that was shown to have any causal connection to the alleged class-based imbalance in D & L’s general or supervisory work force. The plaintiffs pointed only to D & L’s policy requiring individuals to fill out applications at the plant as a specific employment practice causing a class-based imbalance in the work force. This, however, does not justify analyzing the case under the disparate impact model because the plaintiffs did not demonstrate that the disparity they complain of was the result of the challenged policy. See Wards Cove, 490 U.S. at 657-58, 109 S.Ct. at 2125. Moreover, the plaintiffs identified no specific policy that allegedly caused a race-based imbalance in the number of persons who received promotions. Instead, the plaintiffs merely launched a wide-ranging attack on the cumulative effects of D & L’s employment practices. The disparate impact model is not the appropriate vehicle from which to launch such an attack." }, { "docid": "2685296", "title": "", "text": "730 F.2d 306, 315 (5th Cir.1984); Carpenter v. Stephen F. Austin State University, 706 F.2d 608, 621 (5th Cir.1983). Once the employer has shown that the employment barrier is job-related, the plaintiff then may still be able to show that the barrier is “a mere pretext for discrimination”, Bunch, 795 F.2d at 393, by showing that other adequate selection devices are available which do not have a discriminatory effect against a protected class. Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280, 301 (1975); Rivera v. City of Wichita Falls, 665 F.2d 531 (5th Cir.1982). The disparate impact model is one which is often used by plaintiffs in Title VII cases but one which is often misunderstood or misapplied. As the Fifth Circuit has cautioned: “The disparate impact model applies only when an employer has instituted a specific procedure, usually a selection criterion for employment, that can be shown to have a causal connection to a class imbalance in the work force.” Pouncy v. Prudential Ins. Co. of America, 668 F.2d 795, 800 (5th Cir.1982). The disparate impact model is designed to test facially neutral, objective employment practices, not the subjective criteria often used to evaluate employees in hiring and job placement decisions. Carroll v. Sears, Roebuck & Co., 708 F.2d 183, 188-189 (5th Cir.1983); but see Watson v. Fort Worth Bank and Trust, — U.S. -, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988) (disparate impact analysis may be applied to subjective employment criteria). In the case sub judice, plaintiff characterizes the requirement that Athletic Director also be qualified to act as Head Football Coach as a facially neutral, objective employment criterion which has a disparate impact on females seeking the position of Athletic Director. Although the court agrees that the requirement has a disparate impact on individuals seeking the Athletic Director position who are not qualified to serve as Head Football Coach — including male and female basketball, volleyball, track, and baseball coaches — the court is not convinced that the requirement has a disparate impact on females only. As her statistical" }, { "docid": "9840074", "title": "", "text": "Circuit has recently noted that the application of a disparate impact test to a case involving subjective promotion procedures is “troublesome”. Eastland v. TVA, supra, despite some former Fifth Circuit precedent to the contrary. See Rowe v. General Motors Corp., 457 F.2d 348 (5th Cir.1972); Wade v. Mississippi Cooperative Extension Service, 528 F.2d 508 (5th Cir.1976). In Pouncy v. Prudential Insurance Co. of America, 668 F.2d 795 (5th Cir.1982), the new Fifth Circuit rejected the application of the disparate impact model to an attack on the use of subjective evaluation criteria, and stated that disparate impact analysis applies only to a specific, discrete employment practice or procedure, such as an aptitude test or educational requirement, the impact of which on a protected class can objectively be measured. See also the Court’s Order denying class certification in this case. Nation v. Winn-Dixie Stores, Inc., 95 F.R.D. 82, 87 (N.D.Ga.1982). For the reasons stated in this Court’s Order denying class certification, id., as well as for the reasons set forth in Pouncy, supra and Eastland v. TVA, supra, the Court finds that the disparate treatment approach, and not disparate impact, is appropriate for this case. Specifically, a disparate impact test does not limit its focus to the complained of subjective aspects of an employer’s policies, but also may measure the impact of a variety of other factors. It is therefore impossible to tell under a disparate impact approach whether the alleged adverse impact is caused by an employer’s use of subjective criteria or other factors which are not the subject of the litigation. Moreover, it is especially difficult in the context of promotions to formulate employer decision-making criteria that are completely free of subjectivity. . The record is devoid of evidence, statistical or otherwise, that would show that black employees have been delayed in receiving training or promotions when compared to whites. The facts of Wesley’s circumstances in conjunction with such evidence might support a finding of discrimination, but Wesley’s testimony standing alone is not sufficient. . Walton alleged in testimony that he received his grocery certificate three or four months late" } ]

[ { "docid": "22149306", "title": "", "text": "the duties chargeable upon imported merchandise,” to a board of general appraisers, whose decision shall be final and conclusive “ as to the construction of the law and the facts respecting the classification of such merchandise and the rate of duties imposed thereon under such classification,” unless application be made for a review to the Circuit Court of the United States. This remedy is doubtless exclusive as applied to customs cases; but, as we then held, it has no application to actions against the collector for duties exacted upon goods which were not imported at all. Such cases, although arising under the revenue laws, are not within the purview of the Customs Administrative act; as' for such cases there is still a common-law right of action against the collector, and we think also by application to the Court of Claims. There would seem to be no doubt about plaintiffs’ remedy against the collector at San Juan. In the Nichols case, it was held that, as there was a remedy by action against the collector, expressly provided by statute, that remedy was exclusive. In De Lima v. Bidwell we held that although no other remedy was given expressly by statute than that provided by the Customs Administrative act, there was still a common law remedy against the collector for duties exacted upon goods not imported at all; but it does not therefore follow that this remedy is exclusive, and that the importer may not avail himself of his right of action in the Court of Claims. But conceding that the Nichols case does not stand in the way of a suit in the Court of Claims, the government takes the position, that a suit in the United States to recover back duties file-., gally exacted by a collector of customs is really an action “ sounding in tort,” though not an action “ for damages, liquidated or unliquidated,” within the fourth class of cases enumerated in the Tucker act. There are a number of authorities in this court upon that subject which require examination. The question is, whether any claim sounding" } ]

[ { "docid": "13443074", "title": "", "text": "in a court of law, equity, or admiralty, if the United States were suable, and of all set-offs, counterclaims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever on the part of the Government of the United States against any claimant against the Government in said court. * * * ” Appellant takes the position that the present suit can be maintained in the District Court under both or either of the above statutes. On the other hand the appellee contends that jurisdiction of controversies such as alleged in the complaint, involving the customs revenue laws, has been conferred upon the Court of Customs Appeals to the exclusion of the District Court. While the complaint sets forth that the liqueurs for which the duties were exacted were imported from Germany into San Francisco, appellant makes the contention that if the particular section of the Tariff Aet under which the collector of customs exacted the duties is unconstitutional, that it follows by implication of law that the liqueurs admittedly imported “were not imported merchandise,” by which is meant “merchandise not subject to any tariff at all,” in other words, all proceedings thereunder were entirely outside the customs law machinery, and jurisdiction of the collector of customs, that no protest would be required to be filed, and the whole matter would be without the jurisdiction of the Court of Customs Appeals. By the allegations of the complaint and arguments based thereon to the effect that these goods, admittedly imported from Germany, were, in a legal sense, “not imported at all,” it is sought to bring this ease within the rule announced in Ex parte Fassett, 142 U. S. 470, 12 S. Ct. 295, 35 L. Ed. 1087, and similar cases cited by appellant. It is notable that the method and procedure adopted in that ease was entirely different. There the collector of customs at the port of New York forcibly took possession of a yacht, and deprived the owner of the use and control of her and detained her for the enforcement of the payment of duties alleged to be" }, { "docid": "12292931", "title": "", "text": "consumption. U. S. v. Phelps, 17 Blatchf. 312, Fed. Cas. No. 16,039; Beard v. Porter, 124 U. S. 437, 8 Sup. Ct. 556, 31 L. Ed. 492; Treas. Dec. 12,655—G. A. 1,304; Gandolfi v. U. S., 74 Fed. 549, 20 C. C. A. 652; Knowles v. U. S. (C. C.) 122 Fed. 971; Neresheimer v. U. S. (C. C.) 131 Fed. 977. 2. By Rev. St. § 2931, it was provided that the decision of the collector “as to the rate and amount of duties” should be final and conclusive, unless the owner or agent, within 10 days after the liquidation, should enter a protest, and within 30 days appeal to the Secretary of the Treasury. The decision of the Secretary of the Treasury was made final, unless suit should be brought within 90 days thereafter. These provisions respecting a review were in force until the passage of the customs administrative act (June 10, 1890), when, by section 14, the decision of the collector “as to the rate and amount of duties” was made final and conclusive, unless the importer should, within 10 days after the liquidation, give notice in writing to the collector of his objections, and, if the merchandise was entered for consumption, pay the duties. Upon such notice or protest, and payment, the matter goes to the Board of General- Appraisers for review. If either the government or the importer is dissatisfied with the decision of the Board of General Appraisers “as to the construction of the law and the facts respecting the classification of such merchandise, and the rate óf duty imposed thereon under the classification,” an appeal lies to the Circuit Court of the United. States .(section 15). The decision of this court is final, save in exceptional cases, which, under special provisions, may be reviewed by the Supreme Court of the United States. Thus, a special method, with a special tribunal, was provided for reviewing questions arising in the classification of goods and the liquidation of duties. The questions are usually technical, requiring special knowledge and experience. The rights of both parties are fully" }, { "docid": "13443080", "title": "", "text": "United States in “the Insular Cases,” De Lima v. Bidwell, 182 U. S. 1, 21 S. Ct. 743, 45 L. Ed. 1041; Goetze v. U. S., 182 U. S. 221, 21 S. Ct. 742, 45 L. Ed. 1065, and others which rested largely upon the determination that under the Tariff Act of 3909 (36 Stat. 11) the Board of General Appraisers had no jurisdiction of cases where the collector assessed duties upon goods not imported. The Tariff Act of 1922 is broader and embraces “all decisions of the collector, including the legality of all orders and findings entering into the same, as to the rate and amount of duties chargeable, and as to all exactions of whatever character (within the jurisdiction of the Secretary of the Treasury),” which would embrace the exac-tions complained of by appellant in this ease. Thus jurisdiction is extended to all decisions of the collector, including exactions of whatever character as to the rate and amount of duties chargeable under any provision of the customs revenue laws. Further, every such decision, order, and finding of a collector may be protested and reviewed. Jurisdiction for the determination of these questions has been conferred by Congress through proper channels upon the United States Courts of Customs Appeals. Prior to the enactment by Congress of the Customs Administration Act of 3890 (26 Stat. 133), actions against the collector of customs were properly brought in the District Courts. This act was designed to relieve the District Court from passing on this class of controversies. Congress later by the Tariff Act of 1909 (36 Stat. 305) took from the Circuit Court of Appeals jurisdiction to review decisions of the Board of General Appraisers, and established the Court of Customs Appeals to exercise the functions theretofore vested in the Circuit Courts. Subsequent acts of Congress have withdrawn from the jurisdiction of the District Courts and the Circuit Court of Appeals claims brought against the government to recover duties exacted in the collection of the customs revenues. “Congress has plenary power to prescribe specifically the methods by which the rights of importers against" }, { "docid": "13443079", "title": "", "text": "prior to the first docket call thereof.” Section 515 of the Tariff Act of 1922, 42 Stat. 970, section 399, title 19 USCA, provides, among other things: “Upon the filing of such protest and payment of duties and other charges the collector shall within sixty days thereafter review his decision. '* * * If the collector shall, upon such review, affirm his original decision, * * * the collector shall forthwith transmit the entry and the accompanying papers, and all the exhibits connected therewith, to the Board of General Appraisers for due assignment and determination as provided by law. Such determination shall be final and conclusive upon all persons * * * CX-cept in cases in which an appeal shall be filed in the United States Court of Customs Appeals. * * * ” Appellant insists that those statutes do not confer authority or jurisdiction upon the agencies and courts created thereby to determine the constitutionality of a statute covering a tariff schedule. Appellant strongly relies upon the decisions of the Supreme Court of the United States in “the Insular Cases,” De Lima v. Bidwell, 182 U. S. 1, 21 S. Ct. 743, 45 L. Ed. 1041; Goetze v. U. S., 182 U. S. 221, 21 S. Ct. 742, 45 L. Ed. 1065, and others which rested largely upon the determination that under the Tariff Act of 3909 (36 Stat. 11) the Board of General Appraisers had no jurisdiction of cases where the collector assessed duties upon goods not imported. The Tariff Act of 1922 is broader and embraces “all decisions of the collector, including the legality of all orders and findings entering into the same, as to the rate and amount of duties chargeable, and as to all exactions of whatever character (within the jurisdiction of the Secretary of the Treasury),” which would embrace the exac-tions complained of by appellant in this ease. Thus jurisdiction is extended to all decisions of the collector, including exactions of whatever character as to the rate and amount of duties chargeable under any provision of the customs revenue laws. Further, every such decision," }, { "docid": "23143464", "title": "", "text": "and their collection do not serve to extend it to the latter. It is a shield for official action, not a sword for private aggression. There is dictum to the contrary in Sheridan v. Allen, 153 Fed. 569, 82 C. C. A. 522, but it is neither supported by the case it cites nor by any other brought to attention. Markle v. Kirkendall (D. C.) 267 Fed. 500, tends to the conclusion herein. It is not improbable that section 934, R. S. (Comp. St. § 1560), wherein it provides that property taken by an officer “under authority of any revenue law” is “irrepleviable,” is in “custody of law,” and “subject only to the orders and decrees of the courts of the United States having jurisdiction thereof,” contemplates the instant case. The collector assumed in good faith to distrain property he believes to be the taxpayer’s. If he peaceably secures possession of it (for, if not the taxpayer’s, the owner may lawfully forcibly prevent), he is not bound to deliver it to any chance claimant, nor is he subject to be deprived of it by replevin before trial. The nontaxpayer owner, however, is free to bring any other proper action, the court to determine title, ownership, and possession, the collector having no power to do so, and the property “subject only to the orders and decrees of the court,” to be by the court disposed of as justice requires. See In re Fassett, 142 U. S. 486, 12 Sup. Ct. 295, 35 L. Ed. 1087; De Lima v. Bidwell, 182 U. S. 180, 21 Sup. Ct. 743, 45 L. Ed. 1041. And this is the course in respect to any property in custodia legis, aside from statute. This trial demonstrating that plaintiff owns and is entitled to posses-: sion of the property, and that the defendant wrongfully seized it to make taxes owed by Wise, justice requires that the sale be enjoined and the possession restored to her. Decree accordingly, and with costs." }, { "docid": "8837285", "title": "", "text": "HAZEL, District Judge. Certain vessels enrolled in the United States, owned by the respondent corporation and engaged in transportation of freight from Charlotte and Ogdensburg, in the state of New York, to Canadian ports, were repaired at Kingston, a foreign port. Thereafter, on return to their port of hail, they were held liable by the collector of the port of entry to payment of an ad valorem duty of 50 percentum of the costs of repairs in such foreign port, including the expenses of dockage. The owner protested in writing against the action of the collector upon the ground that a duty on dockage was an unauthorized exaction, not contemplated by section 3114 of the United States Revised Statutes [U. S. Comp. St. 1901, p. 2032], under which section the duty was assessed. The decision of the Board of General Appraisers upon this point was favorable to the owner of the vessels. It held, that the expenses of, docking a vessel while undergoing repairs in a foreign port is not subject to the payment of a duty. From such decision the United States has filed its petition for review, and contends for the single proposition that the board were without jurisdiction to review the decision of the collector, since the duties were not chargeable upon an importation of merchandise. This proposition, in view of section 3114 of the Revised Statutes, is untenable. The cases cited (Ex parte Fassett, 142 U. S. 479, 12 Sup. Ct. 295, 35 L. Ed. 1087, and The Conqueror, 166 U. S. 110, 17 Sup. Ct. 510, 41 L. Ed. 937) are inapplicable. The question in those cases was whether a vessel brought from abroad is an imported article, within the meaning of the tariff laws. In the Fassett Case it was substantially held, inter alia, that the jurisdiction of the board of general appraisers to review a decision of the collector, in the absence of any other provision giving the collector original authority to levy a duty, was limited to classifications of imported merchandise; and it was further held, in effect, that.the col lector under" }, { "docid": "13422482", "title": "", "text": "187: “The purpose of penalties inflicted upon persons who attempt to defraud the revenue is to enforce the collection of duties and taxes. They act in terrorem upon parties whose conscientious scruples are not sufficient to balance their hopes of profit.” It is one thing to charge a party with a crime. It is a wholly different thing t© charge the existence of facts as the basis for the enforcement of a penalty by civil suit, or by x the action of administrative officers, although such facts may constitute a crime. In Bartlett v. Kane, 16 How. 263, 14 L. Ed. 931, a collector of customs imposed an extra 20 per cent, duty upon the Tariff Act of 1842 (5 Stat. 548) on goods imported, as a penalty for undervaluation. Payment was made under protest, and suit brought to recover back. The Supreme Court held the 20 per centum to be additional duty designed to operate as a restraint upon fraud and injustice. , , The same question was before the Supreme Court, under a like provision of the McKinley Tariff Act (26 Stat. 567), in the ease of Passavant v. United States, 148 U. S. 214, 13 S. Ct. 572, 37 L. Ed. 426. The court said that the additional duties were “designed to discourage undervaluation upon imported merchandise and to prevent efforts to escape the legal rates of duty. It is wholly immaterial whether they are called additional duties or penalties. Congress had the power to impose them under either designation or character. * * * ” This case was cited with approval in Origet v. Hedden, 155 U. S. 228, 15 S. Ct. 92, 39 L. Ed. 130. The question of the right and power of Congress to commit to administrative officers the right to impose and collect money penalties came squarely before the Supreme Court in Oceanic Steam Navigation Co., Ltd., v. Stranahan, 214 U. S. 320, 29 S. Ct. 671, 53 L. Ed. 1013. There the money penalty was imposed by the Secretary of Commerce under the ninth section of the Alien Immigration Act of" }, { "docid": "23143462", "title": "", "text": "restraining the assessment or collection of any tax shall be maintained in any court,” applies to taxpayers only, and who, thus deprived of one remedy, are given another by section 3226, R. S. (Comp. St. § 5949), viz. an action to recover after taxes paid and repayment denied by the Commissioner. Nor are they limited to this statutory remedy, but, after taxes paid, they may have trespass or other action against the collector. See Erskine v. Hohnbach, 14 Wall. 616, 20 L. Ed. 745; De Lima v. Bidwell, 182 U. S. 179, 21 Sup. Ct. 743, 45 L. Ed. 1041; Pacific Co. v. U. S. 187 U. S. 453, 23 Sup. Ct. 154, 47 L. Ed. 253. The revenue laws are a code or system in regulation of tax assessment and collection. They relate to taxpayers, and not to nontaxpayers. The latter are without their scope. No procedure is prescribed for nontaxpayers, and no attempt is made to annul any of their rights and remedies in due course of law. With them Congress does not assume to deal, and they are neither of the subject nor of the object of the revenue laws. The instant suit is not to restrain assessment or collection of taxes of Wise, but is to enjoin trespass upon property of plaintiff, and against whom no assessment has been made, and of whom no collection is sought.- Note, too, the taxes are not assessed against the property. This presents a widely different case than that wherein the person assessed, or whose property is assessed, seeks to restrain assessment or collection on the theory that he or it is exempt from taxation, or that for any reason the tax is illegal. The distinction between persons and things within the scope of the revenue laws and those without them is vital. See De Lima v. Bidwell, 182 U. S. 176, 179, 21 Sup. Ct. 743, 45 L. Ed. 1041. To the former only does section 3224 apply (see cases cited in Violette v. Walsh [D. C.] 272 Fed. 1016), and the well-understood exigencies of government and its revenues" }, { "docid": "18705523", "title": "", "text": "That could only be done by tbe division bearing and deciding protests made pursuant to tbe provisions of section 514. I fear that tbe majority of this court, and tbe court below, have not fully considered tbe dual capacity in which tbe Customs Court acts. I think it is well settled that where a court attempts to execute a power not inherent, but specially given by statute, to do a particular thing in a particular way, it can not exercise any power except in tbe mode prescribed by tbe statute. Thatcher v. Powell, 6 Wheat. 119; United States v. Knight’s Administrator, 1 Black. 488; East Tennessee, Virginia & Georgia R. R. Co. v. Southern Telegraph Co. 112 U. S. 306; Hart v. Gray, 6 Fed. Cas. 152; Shelby v. Bacon et al., 10 How. 69. In the case of De Lima v. Bidwell, 182 U. S. 1, tbe court held that tbe Board of General Appraisers (now tbe Customs Court) bad no jurisdiction where the collector assessed duty on goods not imported. The majority opinion in tbe case at bar impliedly admits that were tbe statutory law to-day tbe same as tbe law under which In re Fassett, 142 U. S. 479, and De Lima v. Bidwell, supra, were decided, tbe Customs Court would have no jurisdiction to determine whether tbe tugboat in question was imported merchandise within tbe meaning of tbe customs laws, but points out that tbe statutory law governing tbe jurisdiction of tbe Customs Court (formerly the Board of General Appraisers) has been materially modified since that time by enlarging such jurisdiction. Tbe opinion. points out tbe modifications which, I assume, are regarded as justifying its bolding that tbe Customs Court, sitting in reappraisement, now has jurisdiction to decide tbe question of tbe importability of merchandise; but I submit that none of tbe modifications so pointed out affect in tbe least degree the jurisdiction of tbe Customs Court sitting in reappraisement. One modification emphasized in tbe majority opinion is tbe addition of tbe words “or upon merchandise on which duty shall have been assessed, ” thus giving" }, { "docid": "8837286", "title": "", "text": "a duty. From such decision the United States has filed its petition for review, and contends for the single proposition that the board were without jurisdiction to review the decision of the collector, since the duties were not chargeable upon an importation of merchandise. This proposition, in view of section 3114 of the Revised Statutes, is untenable. The cases cited (Ex parte Fassett, 142 U. S. 479, 12 Sup. Ct. 295, 35 L. Ed. 1087, and The Conqueror, 166 U. S. 110, 17 Sup. Ct. 510, 41 L. Ed. 937) are inapplicable. The question in those cases was whether a vessel brought from abroad is an imported article, within the meaning of the tariff laws. In the Fassett Case it was substantially held, inter alia, that the jurisdiction of the board of general appraisers to review a decision of the collector, in the absence of any other provision giving the collector original authority to levy a duty, was limited to classifications of imported merchandise; and it was further held, in effect, that.the col lector under the customs revenue laws had no power to hold the yacht (Conqueror) dutiable, it not being an article of merchandise imported from abroad. It will be observed from a reading of these cases that the question here is quite distinguishable. Congress has made appropriate provisions for charging a duty for the equipments or the expenses of repairs made in a foreign port upon a vessel licensed under our laws. Such being the provision of the statute, no doubt is entertained by the court that the customs administrative act of June 10, 1898, c. 407, 26 Stat. 131 [U. S. Comp. St. 1901, p. 1886], confers jurisdiction upon the board by sections 14 and 15 to review the decision of the collector. Clearly, the intention of Congress was to vest the board with power to review the decision of the collector as to all collections of duties which he may be legally authorized to impose upon the “imported merchandise, including all dutiable costs and charges, and as to all fees and exactions of whatever character (except" }, { "docid": "7570691", "title": "", "text": "HUNT, Circuit Judge (after stating the facts as above). By the statutes above cited Congress extended the provisions of the Revenue Law of 1916 to the Philippine Islands, and authorized the assessment and levies to be made by the administrative internal revenue officers of the Philippine government, but, instead of requiring the taxes when collected to be paid into the treasury of the general government of the United States, directed that they should accrue to the general government of the Philippine Islands. A like policy obtained and still obtains as to Porto Rico. The purpose of such legislation was to enable the governments of those islands, respectively, to have sufficient revenue to meet their needs and to receive the money through the most direct channels, and not have to await appropriation by Congress. The policy was not new. For example, in the island of Porto Rico, ever since the institution of civil government in May, 1900, customs duties collected have been turned over to the insular treasury by the collector of customs for the island, to be expended as required by law for the government and benefit of the island, “instead of being paid into the treasury of the United States.” Act of Congress April 12, 1900, § 4, Supplement R. S. U. S. vol. 2, p. 1128 (U. S. Comp. St. § 3752). The power of Congress, in the imposition of taxes and providing for the collection thereof in the possessions of the United States, is not restricted by constitutional provision (section 8, article 1), which may limit its general power of taxation as to uniformity and apportionment when legislating for the mainland or United States proper, for it acts in the premises under the authority of clause 2, section 3, article 4, of the Constitution, which clothes Congress with power to make all needful rules and regulations respecting the territory or other property belonging to the United States. Binns v. United States, 194 U. S. 486, 24 Sup. Ct. 816, 48 L. Ed. 1087; Downes v. Bidwell, 182 U. S. 244, 21 Sup. Ct. 770, 45 L. Ed." }, { "docid": "9625223", "title": "", "text": "make protest unnecessary, as already noted. Compare Lincoln v. Worcester, 8 Cush. (Mass.) 55, 61. In Erskine v. Van Arsdale, 15 Wall. 75, 77 (21 L. Ed. 63), the court says: “Taxes illegally assessed and paid may always be recovered back, if the collector understands from the payer that the taxes are regarded as illegal and that suit will be instituted to compel the refunding of them.” De Lima v. Bidwell, 182 U. S. 1, 21 Sup. Ct. 743, 45 L. Ed. 1041, was also an action against the collector of the port of New York to recover duties alleged to have been illegally exacted and paid on certain importations oí sugar from Porto Rico after cession to the United States. On page 177 et seq. of 182 U. S., 21 Sup. Ct. 743, 45 L. Ed. 1041, the court deals with the question whether the legality of the duties can be tested in this form of action and answered in the affirmative. See, also, Pacific Whaling Co. v. United States, 187 U. S. 447, 453, 23 Sup. Ct. 154, 47 L. Ed. 253; State Railroad Tax Cases, 92 U. S. 575, 613, 23 L. Ed. 663; Atchison, etc., Railway Co. v. O’Connor, 223 U. S. 280, 287, 32 Sup. Ct. 216, 56 L. Ed. 436, Ann. Cas. 1913C, 1050; Gaar, Scott & Co. v. Shannon, 223 U. S. 468, 32 Sup. Ct. 236, 56 L. Ed. 510: Meek v. McClure, 49 Cal. 623; Van Buren v. Downing, 41 Wis. 122. In Larnborn v. County Commissioners, 97 U. S. 181, 185, 186 (24 L. Ed. 926), it is said: “Under this rule, illegal taxes or other public exactions, paid to prevent such seizure or remove such detention, may be recovered back, unless prohibited by some statutory regulation to the contrary.” But in dealing with the rights of a citizen of another state, the “statutory regulation” which will bar his right cannot, in my view, be the enactment of the commonwealth of Massachusetts. Citizens of other states cannot be deprived by enactments of the commonwealth of Massachusetts of their right through" }, { "docid": "3622164", "title": "", "text": "is hardly reasonable to suppose that so important a question would have been overlooked. In the very important cases of De Lima v. Bidwell, 182 U. S. 1, 21 Sup. Ct. 743, 45 L. Ed. 1041, and Downes v. Bidwell, 182 U. S. 244, 21 Sup. Ct. 770, 45 L. Ed. 1088, which were actions arising under the revenue laws of Congress against' the collector of customs, the suits were originally instituted in the state courts and removed, under: the provisions of section 643, Rev. St., to the national court. - From what has been said it follows as of course that the demurrer of. defendants challenging the jurisdiction of the state court must be overruled, and as the bill of complaint on its face shows that complainant claims some right granted to him by the Constitution and laws of the- United States and the value of the matter in controversy exceeds $2,000, the motion to remand the cause to the state court must also be overruled. New Orleans National Bank v. Merchant (C. C.). 18 Fed. 841." }, { "docid": "15865059", "title": "", "text": "wrongs, as universally as individuals. The decisions of the Supreme Court upon the specific question before us evidence a constantly increasing tendency to adopt this view. In the year 1868, in the case of Nichols v. U. S., 7 Wall. 122, 131, 19 L. Ed. 125, that court held “that cases arising under the revenue laws were not within the jurisdiction of the Court of Claims.” In the year 1877, in U. S. v. Kaufman, 96 U. S. 567, 24 L. Ed. 792,. it held that its declaration in the Nichols Case was too broad, and that the act of 1855 gave the Court of Claims jurisdiction of an action upon a claim for taxes illegally collected, which had been allowed by the Commissioner of Internal Revenue. \" ’ In 1881, in U. S. v. Savings Bank, 104 U. S. 728, 734, 26 L. Ed. 908, it affirmed this decision. In the year 1900, Dooley, Smith & Co. had brought an action against the United States in the Southern District of New York to recover back certain taxes illegally exacted from them upon merchandise imported into Porto Rico from New York. Their claim had not been allowed by any officer of the government, so that there was no contract, express or implied, to pay it. They were met, as is the plaintiff in the case at bar, by the contention that theirs was an action “sounding in tort,” and that none but actions upon contracts could be maintained under the act of 1887. The Supreme Court first again discarded the decision in the Nichols Case, then reviewed the authorities upon actions founded upon contracts and upon torts, and discussed the question “whether any claim sounding in tort can be prosecuted in the Court of Claims, notwithstanding the words ‘not sounding in tort/ in the Tucker act, are apparently limited to claims for damages, liquidated or unliquidated,” and finally announced its decision in these words': “In the cases under consideration the argument is made that the money was tortiously exacted, that the alternative of payment to the collector was a seizure" }, { "docid": "23143461", "title": "", "text": "United States in discharge of a discretionless ministerial duty, upon plaintiff’s property is committing without authority, contrary to .his duty, and in violation of the due process of the Constitution and the revenue laws of the United States, positive acts of trespass for which he is personally liable. See Philadelphia Co. v. Stimson, 223 U. S. 620, 32 Sup. Ct. 340, 56 L. Ed. 570; Belknap v. Schild, 161 U. S. 18, 16 Sup. Ct. 443, 40 L. Ed. 599; U. S. v. Lee, 106 U. S. 219, 1 Sup. Ct. 240, 27 L. Ed. 171; Magruder v. Association, 219 Fed. 78, 135 C. C. A. 524. Congress has no power to grant, and has not assumed to grant, authority to the defendant collector to distrain the property of one person to make the taxes of another. Perhaps it could, were the property in possession of the taxpayer, which is not this case. See Sears v. Cottrell, 5 Mich. 253. Section 3224, R. S. (Comp. St. § 5947), that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court,” applies to taxpayers only, and who, thus deprived of one remedy, are given another by section 3226, R. S. (Comp. St. § 5949), viz. an action to recover after taxes paid and repayment denied by the Commissioner. Nor are they limited to this statutory remedy, but, after taxes paid, they may have trespass or other action against the collector. See Erskine v. Hohnbach, 14 Wall. 616, 20 L. Ed. 745; De Lima v. Bidwell, 182 U. S. 179, 21 Sup. Ct. 743, 45 L. Ed. 1041; Pacific Co. v. U. S. 187 U. S. 453, 23 Sup. Ct. 154, 47 L. Ed. 253. The revenue laws are a code or system in regulation of tax assessment and collection. They relate to taxpayers, and not to nontaxpayers. The latter are without their scope. No procedure is prescribed for nontaxpayers, and no attempt is made to annul any of their rights and remedies in due course of law. With them Congress does not" }, { "docid": "3622163", "title": "", "text": "and that Congress is of that opinion is conclusively evidenced by the fact that it has not seen proper' to deprive the state courts of that jurisdiction by conferring exclusive jurisdiction on the courts of its own creation in cases of this nature, or even cases arising under the revenue laws. The reports of the Supreme Court of the United States are full of cases which were originally instituted against collectors of customs and internal revenue in the state courts and removed to the national courts, and in none of them has that high tribunal ever held that the state court in which the suit was originally instituted was without jurisdiction. In view of the well-known fact that the courts of the United States, including the Supreme Court, will raise jurisdictional questions of their own. motion, as was evidenced in Minnesota v. Northern Securities Company, 194 U. S. 48, 24 Sup. Ct. 598, 48 L. Ed. 870, and Cochran v. Montgomery County, 199 U. S. 260, 26 Sup. Ct. 58, 50 L. Ed. 182, it is hardly reasonable to suppose that so important a question would have been overlooked. In the very important cases of De Lima v. Bidwell, 182 U. S. 1, 21 Sup. Ct. 743, 45 L. Ed. 1041, and Downes v. Bidwell, 182 U. S. 244, 21 Sup. Ct. 770, 45 L. Ed. 1088, which were actions arising under the revenue laws of Congress against' the collector of customs, the suits were originally instituted in the state courts and removed, under: the provisions of section 643, Rev. St., to the national court. - From what has been said it follows as of course that the demurrer of. defendants challenging the jurisdiction of the state court must be overruled, and as the bill of complaint on its face shows that complainant claims some right granted to him by the Constitution and laws of the- United States and the value of the matter in controversy exceeds $2,000, the motion to remand the cause to the state court must also be overruled. New Orleans National Bank v. Merchant (C. C.)." }, { "docid": "18705522", "title": "", "text": "him to appraise. If the collector decides that certain property is merchandise subject to appraisal, the appraiser must accept his decision and proceed to ■appraise it. If the collector is in error in ordering its appraisement, because it is not in fact dutiable merchandise, it may be a finding which may later result in a decision as to the rate and amount of •duty chargeable, or an exaction which under section 514 may be protested and brought before the Customs Court, sitting for hearing and deciding protests against decisions of the collector, but I can not conceive bow a decision of tbe collector on that question can be reviewed in an appraisement proceeding. Tbe brief of appellee in this case treats tbe case as if there bad been an exaction by tbe collector, thus giving jurisdiction to tbe Customs Court to determine whether tbe tugboat was imported merchandise. But there has been no exaction by tbe collector, and if there bad been, tbe Customs Court, sitting in reappraisement, could have no jurisdiction to review it. That could only be done by tbe division bearing and deciding protests made pursuant to tbe provisions of section 514. I fear that tbe majority of this court, and tbe court below, have not fully considered tbe dual capacity in which tbe Customs Court acts. I think it is well settled that where a court attempts to execute a power not inherent, but specially given by statute, to do a particular thing in a particular way, it can not exercise any power except in tbe mode prescribed by tbe statute. Thatcher v. Powell, 6 Wheat. 119; United States v. Knight’s Administrator, 1 Black. 488; East Tennessee, Virginia & Georgia R. R. Co. v. Southern Telegraph Co. 112 U. S. 306; Hart v. Gray, 6 Fed. Cas. 152; Shelby v. Bacon et al., 10 How. 69. In the case of De Lima v. Bidwell, 182 U. S. 1, tbe court held that tbe Board of General Appraisers (now tbe Customs Court) bad no jurisdiction where the collector assessed duty on goods not imported. The majority opinion" }, { "docid": "15865060", "title": "", "text": "back certain taxes illegally exacted from them upon merchandise imported into Porto Rico from New York. Their claim had not been allowed by any officer of the government, so that there was no contract, express or implied, to pay it. They were met, as is the plaintiff in the case at bar, by the contention that theirs was an action “sounding in tort,” and that none but actions upon contracts could be maintained under the act of 1887. The Supreme Court first again discarded the decision in the Nichols Case, then reviewed the authorities upon actions founded upon contracts and upon torts, and discussed the question “whether any claim sounding in tort can be prosecuted in the Court of Claims, notwithstanding the words ‘not sounding in tort/ in the Tucker act, are apparently limited to claims for damages, liquidated or unliquidated,” and finally announced its decision in these words': “In the cases under consideration the argument is made that the money was tortiously exacted, that the alternative of payment to the collector was a seizure and sale of the merchandise for the nonpayment of duties, and that it mattered not that at common law an action for money had and received would have lain against the collector to recover them back. But whether the exactions of these duties were tortious or not- — whether it was within the power of the importer to waive the tort, and bring suit in the Court of Claims for money had and received, as upon an implied contract of the United States to refund the money, in case it was illegally exacted — we think the case is one within the first class of cases specified in the Tucker act, of claims founded upon a law of Congress, namely, a revenue law, in respect to which class of cases the jurisdiction of the Court of Claims, under the Tucker act, has been-repeatedly sustained.” In the year 1903, in the case of Spreckels Sugar Refining Co. v. McClain, 192 U. S. 397, 406, 407, 24 Sup. Ct. 376, 378, 48 L. Ed. 496, that court" }, { "docid": "9625222", "title": "", "text": "March 3, 1839, “was to take from the claimant all right of action against the collector, by removing the ground on which the implied promise rested. Congress, being in session at the time that decision was announced, passed the explanatory act of February 26, 1845, which, by legislative construction of the act of 1839, restored to the claimant his right of action against the collector, but required the protest to be made in writing at the time of payment of the duties alleged to have been illegally exacted, and took from the Secretary of the Treasury the authority to refund conferred by the act of 1839. * * *” It certainly is significant that Congress restored a right of action against federal officials acting ultra vires. These authorities make it clear that, unless and except as modified by statute, the common-law right of action for money had and received lies against a tax collector to recover taxes illegally collected, with notice that they are not paid voluntarily, but under protest; duress, express or implied, may make protest unnecessary, as already noted. Compare Lincoln v. Worcester, 8 Cush. (Mass.) 55, 61. In Erskine v. Van Arsdale, 15 Wall. 75, 77 (21 L. Ed. 63), the court says: “Taxes illegally assessed and paid may always be recovered back, if the collector understands from the payer that the taxes are regarded as illegal and that suit will be instituted to compel the refunding of them.” De Lima v. Bidwell, 182 U. S. 1, 21 Sup. Ct. 743, 45 L. Ed. 1041, was also an action against the collector of the port of New York to recover duties alleged to have been illegally exacted and paid on certain importations oí sugar from Porto Rico after cession to the United States. On page 177 et seq. of 182 U. S., 21 Sup. Ct. 743, 45 L. Ed. 1041, the court deals with the question whether the legality of the duties can be tested in this form of action and answered in the affirmative. See, also, Pacific Whaling Co. v. United States, 187 U. S. 447," }, { "docid": "18705511", "title": "", "text": "law. Undoubtedly this amendment was prompted by the decisions of the Supreme Court of the United States in “the Insular Cases,\" De Lima v. Bidwell, (182 U. S. 1) and Goetze v. United States (182 U. S. 221) holding that the board had not jurisdiction where the collector assessed duty upon goods not imported. By this provision jurisdiction of the board is extended to all decisions of collectors of customs as to the rate and amount of duties, whether or not imported, and, of course, whether or not legal entry is therefor provided. It is any and every decision of a collector as to the rate and amount of duties, etc., that may be protested and reviewed, and not only such a decision as to imported or legally entered merchandise or as to goods for which a certain entry is by statute provided. Wherefore, this appeal being from a decision of a collector of customs as to the proper rate and amount of import duty assessed thereupon, jurisdiction of the board attaches without further essential qualification to confer that jurisdiction. We are of opinion the Fassett case was decided in view of the particular statute in force at that time, and can not be held to be applicable now. To hold that an importer is bound and estopped by each statement he makes in his entry, under present laws, would not only greatly interfere with and cripple the commerce of the country, but, in our judgment,/is far from the intent of Congress as expressed in the various acts which we have above cited and referred to. It has been suggested that the question of the dutiability of the Berwind can not be raised in a reappraisement proceeding; that the only function of the appraiser and the single justice was to appraise the goods and of the appellate division of the Customs Court to review such appraisement. It would appear that such contention loses sight of the former conclusions of this court on that point. In United States v. McConnaughey an Co., 13 Ct. Cust. Appls. 112, T. D. 40944, this" } ]

[ { "docid": "23151159", "title": "", "text": "on November, 1, 2000. She was placed on the performance improvement plan on November 13, 2000 and terminated June, 2001, over seven months later. “A causal connection may be shown by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.” O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir.2001) (quotation omitted). Standing alone, temporal proximity between the protected activity and the retaliatory conduct must be very close in time. Otherwise, “the plaintiff must offer additional evidence to establish causation.” Id. A seven-month period between protected activity and adverse action will not, by itself, establish causation. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.1999) (“[A] three-month period, standing alone, is insufficient to establish causation.”). Haynes argues the temporal proximity is sufficient here because Level 3 could not “immediately” terminate her while she was on medical leave, and therefore, “[t]he company’s opportunity to camouflage plaintiffs termination within an innocent-looking RIF did not present itself until a RIF was scheduled.” (Appellant’s Br. at 33.) Such speculative argument is not only insufficient, it defies logic. Assuming Larson’s decision to place Haynes on the PIP was because she had spoken out, such assumption does not establish an inference that Larson’s motive carried over to Roberts’ decision, seven months later, to include her in the RIF. “An employer’s refusal to undo a discriminatory decision is not a fresh act of discrimination.” Croy v. Cobe Labs., Inc., 345 F.3d 1199, 1203 (10th Cir.2003) (quotation omitted); see Stepney v. Naperville Sch. Dist. 203, 392 F.3d 236, 240 (7th Cir.2004); Stewart v. Booker T. Washington, Ins., 232 F.3d 844, 853 (11th Cir.2000); Lever v. Northwestern Univ., 979 F.2d 552, 556 (7th Cir.1992). Indeed, the facts indicate no causal connection between Larson’s alleged retaliatory decision and Roberts’ neutral application of policy. Haynes admits that, at the time Larson acted, neither he nor anyone else at Level 3 anticipated the future RIF or was aware the PIP would expose Haynes to collateral vulnerability regarding her employment. (Appellant’s Br. at 20.) (She concedes “[N]ot even the" } ]

[ { "docid": "2044002", "title": "", "text": "defendant concluded that plaintiff could not return to work. Plaintiffs burden is not an onerous one, and he has set forth sufficient evidence to raise an inference of a causal connection. Under McDonnell Douglas, once plaintiff establishes a prima facie case, the burden shifts to defendant to articulate a legitimate, non-retaliatory reason for its actions. See Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1116 (10th Cir.2001). If defendant articulates a facially legitimate reason, the burden shifts back to plaintiff to present evidence that defendant’s proffered reason is pretextu al, that is, “unworthy of belief.” Id. at 1120. Here, defendant asserts that it did not reinstate plaintiffs employment because Dr. Stechschulte’s written medical evaluation showed that plaintiff could not perform the essential functions of the package car driver position. If true, this reason constitutes a legitimate non-retaliatory reason. To survive summary judgment, plaintiff must produce evidence that defendant’s stated reason for not reinstating him was merely pretextual. A plaintiff may show pretext “either directly by persuading the court that a discriminatory reason more likely [than not] motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). While close temporal proximity may establish the causal connection element of a prima facie case, it is generally not sufficient to raise a genuine issue of pretext. See Annett v. Univ. of Kan., 371 F.3d 1233 (10th Cir. 2004); Pastran v. K-Mart Corp., 210 F.3d 1201 (10th Cir.2000); Vigil v. Colo. Dep’t of Higher Educ., 185 F.3d 876, 1999 WL 407479 (10th Cir. June 21, 1999). When evaluating pretext, the relevant inquiry is not whether the employer’s proffered reasons were wise, fair or correct, but whether the employer honestly believed those reasons and acted in good faith upon those beliefs. Stover, 382 F.3d at 1076; Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1318 (10th Cir.1999), overruled on other grounds by Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). Furthermore, the" }, { "docid": "2050047", "title": "", "text": "(Dk.133, Exh. 9) and that this activity constitutes protected conduct for purposes of a retaliation claim. See McCue v. State of Kansas, 165 F.3d 784, 789 (10th Cir.1999). Plaintiff additionally contends that in October of 1993, she made internal complaints to management of sexual harassment, (Dk. 133, Land depo., p. 113-116,) and that these complaints also constitute protected activity. The court agrees that informal complaints to superiors or the use of the employer’s internal grievance procedures constitutes protected activity under Title VII. Pastran v. K-Mart Corp., 210 F.3d 1201, 1205 (10th Cir.2000); Robbins v. Jefferson County Sch. Dist. R-1, 186 F.3d 1253, 1258 (10th Cir.1999). Although defendants dispute that plaintiff ever complained internally of sexual harassment, a material issue of fact exists on this issue. Defendants allege that even if plaintiff engaged in protected conduct, she suffered no adverse action. “In recognition of the remedial nature of Title VII, the law in this circuit liberally defines adverse employment action. See Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir.1996).” Jeffries v. State of Kansas, 147 F.3d 1220, 1232 (10th Cir.1998). Contrary to defendants’ assertions, the Tenth Circuit has declined to require that an adverse employment action- be “material” in order to be actionable. Jeffries, 147 F.3d at 1232. Rather, the Tenth Circuit takes a case-by-case approach to determining whether a given employment action is “adverse.” See, e.g., Corneveaux v. Cuna Mut. Ins. Group, 76 F.3d 1498, 1507 (10th Cir.1996) (showing of adverse employment action where employee required to “go through several hoops” in order to obtain severance benefits); Berry, 74 F.3d at 986-87 (showing of adverse employment action where employer reported plaintiff of suspected crime thereby creating risk of humiliation and damage to reputation); Sauers v. Salt Lake County, 1 F.3d 1122, 1128 (10th Cir.1993)(sufficient adverse employment action where plaintiff was reassigned against her wishes). Although the Tenth Circuit liberally defines an “adverse employment action,” it does not extend to “ ‘a mere inconvenience or an alteration of job responsibilities.’ ” Sanchez v. Denver Public Schools, 164 F.3d 527, 532 (10th Cir.1998). See Heno v. Sprint/United Management Company, 208" }, { "docid": "15360336", "title": "", "text": "applicable in a Title VII case.” Spulak v. K Mart Corp., 894 F.2d 1150, 1153 (10th Cir.1990); see Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1315 (10th Cir.1999). Here, plaintiff offers no evidence that Colgate made any comments directed to her age or sex, or any direct evidence of age or sex discrimination. Although direct or indirect evidence may be used to prove employment discrimination, in practice, plaintiffs typically offer only circumstantial proof because “there is rarely direct evidence of discrimination.” Ingels v. Thiokol Corp., 42 F.3d 616, 621 (10th Cir.1994). In analyzing ADEA and Title VII cases where circumstantial evidence is used, as here, the court relies on the burden shifting procedures set out in the Title VII case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Bullington, 186 F.3d at 1315. Under McDonnell, a plaintiff must first establish a prima facie case that the employer engaged in the alleged discriminatory practice. Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir.1995). To establish a prima facie case of age discrimination under the ADEA, a plaintiff who is discharged in a RIF must prove that (1) she is within the protected age group, (2) she was doing satisfactory work, (3) she was discharged despite the adequacy of her work, and (4) there is some evidence the employer intended to discriminate against her in reaching its RIF decision. Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1165 (10th Cir.), cert. denied, 525 U.S. 1054, 119 S.Ct. 617, 142 L.Ed.2d 556 (1998). See Ingels, 42 F.3d at 621. The fourth element is satisfied if the plaintiff “held a similar position to a younger retained employee.” Id. at 1167. Proof of a prima facie case creates “ ‘a rebuttable presumption of discriminatory intent.’ ” Ingels, 42 F.3d at 621 (quoting Branson v. Price River Coal Co., 853 F.2d 768, 771 (10th Cir.1988)). Of the four elements on her termination claim, the only ohe that the defendant contests is the fourth. Plaintiff contends that the fourth element was eliminated by the United" }, { "docid": "22908744", "title": "", "text": "reason was so inconsistent, implausible, incoherent, or contradictory that it is unworthy of belief. Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1120 (10th Cir.2001). As to the McDonnell Douglas first prong, Stover must first demonstrate a prima facie case. To state a prima facie case of retaliation, Stover must demonstrate that: (1) she engaged in protected opposition to discrimination; (2) HUD took an adverse employment action against her; and (3) there exists a causal connection between the protected activity and the adverse action. Jones, 349 F.3d at 1269; Kendrick v. Penske Trans. Servs, Inc., 220 F.3d 1220, 1234 (10th Cir.2000). There is no dispute that Stover’s EEO complaints are protected activity. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir.1999). We decide whether an employment action is considered adverse on a case-by-ease basis. Gunnell v. Utah Valley State Coll., 152 F.3d 1253, 1264 (10th Cir.1998). Although we will liberally construe the phrase adverse employment action, id., the action must amount to “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or ... causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); see also Annett v. Univ. of Kansas, 371 F.3d 1233, 1237-38 (10th Cir.2004) (applying Ellerth). Mere inconveniences or alterations of job responsibilities do not rise to the level of an adverse employment action. Annett, 371 F.3d at 1239. Finally, a causal connection may be established by proffering “evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.” Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1320 (10th Cir.1999) (quotation omitted); Annett, 371 F.3d at 1239-40. The district court analyzed Stover’s claims of retaliation for her EEO complaints both as separate adverse employment actions and, taken in the aggregate, as constituting a hostile work environment. It found that separately, any claim of adverse action alleged by Stover could not be found to have resulted from retaliation. Even aggregating the allegedly adverse employment actions, Stover failed" }, { "docid": "22908745", "title": "", "text": "to promote, reassignment with significantly different responsibilities, or ... causing a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); see also Annett v. Univ. of Kansas, 371 F.3d 1233, 1237-38 (10th Cir.2004) (applying Ellerth). Mere inconveniences or alterations of job responsibilities do not rise to the level of an adverse employment action. Annett, 371 F.3d at 1239. Finally, a causal connection may be established by proffering “evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.” Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1320 (10th Cir.1999) (quotation omitted); Annett, 371 F.3d at 1239-40. The district court analyzed Stover’s claims of retaliation for her EEO complaints both as separate adverse employment actions and, taken in the aggregate, as constituting a hostile work environment. It found that separately, any claim of adverse action alleged by Stover could not be found to have resulted from retaliation. Even aggregating the allegedly adverse employment actions, Stover failed to demonstrate she was subjected to a work environment sufficiently abusive to constitute a hostile work environment. On appeal, Sto-ver argues that the district court erred in analyzing her claims under the hostile work environment standard, and that a retaliation standard is the only legal standard applicable to her claims. Accordingly, we will analyze her claims as retaliation claims. Stover suggests that following her EEO complaints, she was: (1) given a lower performance evaluation than she had previously received; (2) denied an offer for the position of Supervisory' Attorney-Ad-visor; (3) was not selected for a special assignment; (4) relocated to a different office away from other attorneys; and (5) generally “denied meaningful work commensurate with her grade and experience.” (Appellant Br. at 44.) With respect to Stover’s first claim of a lowered performance appraisal, as the district court noted, Stover testified, and the cover letter to her performance appraisal reflects, her “Highly Successful” evaluation was completed before Diaz left office on January 31, 1997. (I R. at 54, 85, 470.) Because Stover’s first EEO Complaint" }, { "docid": "474619", "title": "", "text": "against the defendants under 42 U.S.C. § 1981 and 42 U.S.C. § 2000e- 2(a) (Title VII) . Plaintiffs race discrimination claims require an identical analysis. Randolph v. Board of Pub. Utils., 983 F.Supp. 1008, 1013 (D.Kan.1997) (citing Aramburu v. The Boeing Co., 112 F.3d 1398, 1403 n. 3 (10th Cir.1997) (Title VII, § 1981, and KAAD); Randle v. City of Aurora, 69 F.3d 441, 450 (10th Cir.1995) (Title VII, § 1981 and § 1983)). To state a prima facie case of race discrimination, plaintiff must show: (1) that he is a member of a racial minority; (2) that he suffered an adverse employment action; and (3) that similarly situated employees were treated differently. Trujillo v. University of Colo. Health Sciences Ctr., 157 F.3d 1211, 1212 (10th Cir.1998).’ To establish a case of intentional discrimination, plaintiff has two options: he may satisfy his burden of proof by offering direct evidence of discriminatory intent or he may demonstrate such intent indirectly by following the McDonnell Douglas burden-shifting framework. Thomas v. Denny’s, Inc., 111 F.3d 1506, 1509 (10th Cir.1997). To prevail by coming forth with direct evidence, “a plaintiff must introduce direct or circumstantial evidence that the alleged [discriminatory] motive ‘actually relate[s] to the question of discrimination in the particular employment decision, not to the mere existence of other, potentially unrelated, forms of discrimination in the workplace.’” Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 550 (10th Cir.1999) (quoting Thomas v. National Football League Players Ass’n, 131 F.3d 198, 204 (D.C.Cir.1997)); see also Thomas, 111 F.3d at 1512 (holding that plaintiff may prove discriminatory motive by “presenting ‘evidence of conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged [retaliatory] attitude.’ ”) (quoting Kenworthy v. Conoco, Inc., 979 F.2d 1462, 1471 n. 5 (10th Cir.1992)). Plaintiff has failed to establish a prima facie case of discrimination based on “direct” evidence. Carlile apparently called plaintiff a “black son-of-a-bitch” on at least one occasion. However, plaintiff admits Carlile’s animosity towards him stems from plaintiffs arrest of Carlile’s brother. Furthermore, Carlile was not in a position to" }, { "docid": "20643437", "title": "", "text": "that because the suspension came over two years after her support of Lollis and was based on a legitimate reason (her responsibility for a prison suicide), McGowan had failed to show the requisite causal connection. McGowan claims she has demonstrated circumstantial evidence of causation by alleging in her amended complaint that she was fired the day after giving a deposition in her Title VII lawsuit. We agree. Testifying in a Title VII lawsuit — including one’s own — can be protected activity. See 42 U.S.C. § 2000e-3(a); see also Robbins v. Jefferson County Sch. Dist., 186 F.3d 1253, 1258 (10th Cir.1999) (acknowledging that Title VII extends protection to those who testify in proceedings related to their own Title VII action even if the action is without merit); Glover v. South Carolina Law Enforcement Div., 170 F.3d 411, 413 (4th Cir.1999) (“[I]t is [] plain that testifying in a deposition in a Title VII case generally constitutes protected activity under [Title VII’s] participation clause.”). Moreover, the required link between the protected activity and subsequent adverse employment action can be inferred if the action occurs within a short period of time after the protected activity. See O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir.2001) (“Unless there is very close temporal proximity between the protected activity and the retaliatory conduct, the plaintiff must offer additional evidence to establish causation.”); Haynes v. Level 3 Commc’n, 456 F.3d 1215, 1229 (10th Cir.2006) (quoting O’Neal for same proposition). Here, McGowan was fired the day after she gave deposition testimony in this case. While proximity alone may not always support an adverse inference of retaliation, McGowan’s deposition testimony containing allegations of wrongful conduct by current police department employees suffices to establish an inference of causation. Having found sufficient circumstantial evidence of causation, we turn to the remaining analysis under the McDonnell-Douglas framework. Where a Title VII plaintiff has made a prima facie case of discrimination, the burden then shifts to the defendant to offer a legitimate, nondiscriminatory reason for the adverse employment action taken against the plaintiff. McDonnell-Douglas, 411 U.S. 792, 802, 93 S.Ct." }, { "docid": "23106998", "title": "", "text": "the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17].” Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1110 (10th Cir.1998). Therefore, the principles set forth in Title VII retaliation cases apply with equal force in § 1981 retaliation cases. In this circuit, a plaintiff bringing a retaliation claim “must establish that retaliation played a part in the employment decision and may choose to satisfy this burden in two ways.” Fye v. Okla. Corp. Comm’n, 516 F.3d 1217, 1224-25 (10th Cir. 2008). Under the direct/“mixed motives” approach, “the plaintiff may directly show that retaliatory animus played a ‘motivating part’ in the employment decision.” Id. at 1225 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 250, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion), superseded in part by 42 U.S.C. §§ 2000e-2(m), 2000e-5(g)(2)(B)); see also id. at 1226. If the plaintiff can prove that retaliatory animus was a motivating factor, the burden shifts to the employer to demonstrate that it would have taken the same action irrespective of the retaliatory motive. Id. at 1225. If the plaintiff cannot directly establish that retaliation played a motivating part in the employment decision, she may instead rely on the three-part framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to prove retaliation indirectly. Fye, 516 F.3d at 1225, 1227. Under the McDonnell Douglas/.indirect approach, the plaintiff must first make out a prima facie case of retaliation by showing “(1) that [s]he engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action.” Somoza v. Univ. of Denver, 513 F.3d 1206, 1212 (10th Cir.2008) (internal quotation marks omitted). If the plaintiff establishes a prima facie case, the employer must then offer a legitimate, nonretaliatory reason for its decision. Id. at 1211. Finally, once the employer has satisfied this burden of production, the plaintiff must show that the employer’s reason is merely a pretext for retaliation. Id. Although the direct/“mixed motives” approach" }, { "docid": "22205142", "title": "", "text": "93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Crowe v. ADT Sec. Servs. Inc., 649 F.3d 1189, 1194 (10th Cir.2011). Under McDonnell Douglas, a three-step analysis requires the plaintiff first prove a prima facie case of discrimination. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir.2002). To set forth a prima facie case of discrimination, a plaintiff must establish that (1) she is a member of a protected class, (2) she suffered an adverse employment action, (3) she qualified for the position at issue, and (4) she was treated less favorably than others not in the protected class. See Sanchez v. Denver Pub. Sch., 164 F.3d 527, 531 (10th Cir. 1998). The burden then shifts to the defendant to produce a legitimate, non-discriminatory reason for the adverse employment action. See Garrett, 305 F.3d at 1216. If the defendant does so, the burden then shifts back to the plaintiff to show that the plaintiffs protected status was a determinative factor in the employment decision or that the employer’s explanation is pretext. Id. Title VII also makes it unlawful for an employer to retaliate against an employee “because [s]he has opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a). A plaintiff can similarly establish retaliation either by directly showing that retaliation played a motivating part in the employment decision, or indirectly by relying on the three-part McDonnell Douglas framework. See Twigg v. Hawker Beechcraft Corp., 659 F.3d 987 (10th Cir.2011). To state a prima facie case for retaliation under Title VII, a plaintiff must show “(1) that [s]he engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action.” Id. at 998 (internal quotation marks omitted) (alteration in original). The FMLA makes it unlawful for an employer to retaliate against an employee for exercising her rights to FMLA leave. See 29 U.S.C. § 2615(a). Retaliation claims under the FMLA are also subject to the burden-shifting analysis of McDonnell Douglas. See" }, { "docid": "3078182", "title": "", "text": "an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. Under the McDonnell Douglas burden-shifting framework, the plaintiff must first establish a prima facie case by showing that (1) she engaged in protected opposition to Title VII discrimination; (2) she suffered an adverse employment action; and (3) there is a causal connection between the protected activity and the adverse employment action. O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1252 (10th Cir.2001). Once the plaintiff makes a prima facie showing, the employer must articulate a legitimate, nondiscriminatory reason for the adverse employment action. The plaintiff must then respond by demonstrating that the employer’s asserted reasons for the adverse action are pretextual. Id. A. Graduate Faculty Status Dr. Meiners claims that Dr. Keel’s refusal to endorse her January, 2001 request for an extension of her graduate faculty status for the spring semester of 2001 was an act of retaliation for her filing of discrimination claims. The district court granted summary judgment on this claim on the ground that Dr. Meiners failed to establish that the denial of graduate faculty status was an adverse employment action. To be an adverse action, the employer’s conduct must be “materially adverse” to the employee’s job status. Sanchez v. Denver Pub. Schs., 164 F.3d 527, 533 (10th Cir.1998). The adverse- action must amount to “a significant change in employment status,” such as “firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Aquilino v. Univ. of Kansas, 268 F.3d 930, 934 (10th Cir.2001) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). In Aquilino, this Court held that a university’s refusal to allow a faculty member who had been denied tenure to be on a graduate student’s dissertation committee or to serve on the graduate faculty was not an adverse employment action. 268 F.3d at 934-35. The Court reasoned that removal of a faculty member’s responsibilities with respect to graduate" }, { "docid": "14052767", "title": "", "text": "complaints to superiors or the use of the employer’s internal grievance procedures constitutes protected activity under Title VII); Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir.1999) (termination is an adverse employment action under the ADA); Bullington, 186 F.3d at 1321 (protected conduct closely followed by adverse action supports an inference of causal connection). Defendant claims, however, that it terminated Plaintiff for his insubordination on January 23, 1997, when he told the store’s management that he could not open a cash register. This reason is non-discriminatory; accordingly, Plaintiff must present evidence that Defendant’s proffered reason is pretextual. Retaliation claims under Title VII are subject to the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Jones, 203 F.3d at 752. The plaintiff bears the initial burden of establishing a prima facie case of discrimination. Jones, 203 F.3d at 752. If the plaintiff does so, then the defendant must offer a legitimate, non-discriminatory reason for its employment action. Id. The plaintiff then bears the ultimate burden of demonstrating that the defendant's proffered reason is pretextual. Id. A plaintiff may demonstrate pretext by showing \"such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reaSons for its action that a reasonable fact-finder could rationally find them unworthy of credence.\" Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1317 (10th Cir.1999). \"[T]he pertinent question in determining pretext is not whether the employer was right to think the employee engaged in misconduct, but whether that belief was genuine or pretextual.\" Hardy v. S.F. Phosphates L.C., 185 F.3d 1076, 1080 (10th Cir.1999) (internal quotations omitted). Close temporal proximity between the employee's complaint and the adverse employment action is a factor in determining whether the employer's proffered reason is a pretext for retaliation. Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 551 (10th Cir.), cert. denied, - U.S. -, 120 S.Ct. 48, 145 L.Ed.2d 42 (1999); see also Butler v. City of Prairie Village, Kan., 172 F.3d 736, 752 (10th Cir.1999) (holding that close temporal proximity is a factor in showing" }, { "docid": "19784861", "title": "", "text": "Doc. 48 Ex. C at 200:17-201:10.) Mitchell filed a formal Charge of Discrimination with the New Mexico Human Rights Bureau on June 10, 2010, and he was given notice of his right to sue on his retaliation claim by the Equal Employment Opportunity Commission on September 17, 2010. (Doc. 1 Exs. A & B.) SUMMARY JUDGMENT STANDARD Summary judgment is appropriate where the pleadings, discovery materials, and affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex, 477 U.S. at 322-24, 106 S.Ct. 2548. A fact is “material” if, under the governing law, it could have an effect on the outcome of the lawsuit, and the dispute is “genuine” if a rational jury could find in favor of the nonmoving party on the evidence presented. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). The court must view all “evidence and draw all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.” Mathews v. Denver Newspaper Agency LLP, 649 F.3d 1199, 1204 (10th Cir.2011) (quoting Lewis v. Circuit City Stores, Inc., 500 F.3d 1140, 1146 (10th Cir.2007)). In ruling on a summary judgment motion, the court may neither make credibility determinations nor weigh the evidence. Gossett v. Oklahoma, 245 F.3d 1172, 1175 (10th Cir.2001) (quotation omitted). RETALIATION CLAIM To pursue a claim for relief under Title VII and the NMHRA, the plaintiff must first make out a prima facie case of unlawful retaliation. To establish a prima facie case, the plaintiff “must show that: (1) [he] engaged in protected activity; (2) the [defendant] took an adverse employment action against [him]; and (3) there exists a causal connection between the protected activity and the adverse action.” Annett v. Univ. of Kan., 371 F.3d 1233, 1237 (10th Cir.2004) (citations omitted). Where there is no direct evidence of retaliation, a retaliation claim is analyzed under a burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93" }, { "docid": "19784862", "title": "", "text": "inferences therefrom in the light most favorable to the party opposing summary judgment.” Mathews v. Denver Newspaper Agency LLP, 649 F.3d 1199, 1204 (10th Cir.2011) (quoting Lewis v. Circuit City Stores, Inc., 500 F.3d 1140, 1146 (10th Cir.2007)). In ruling on a summary judgment motion, the court may neither make credibility determinations nor weigh the evidence. Gossett v. Oklahoma, 245 F.3d 1172, 1175 (10th Cir.2001) (quotation omitted). RETALIATION CLAIM To pursue a claim for relief under Title VII and the NMHRA, the plaintiff must first make out a prima facie case of unlawful retaliation. To establish a prima facie case, the plaintiff “must show that: (1) [he] engaged in protected activity; (2) the [defendant] took an adverse employment action against [him]; and (3) there exists a causal connection between the protected activity and the adverse action.” Annett v. Univ. of Kan., 371 F.3d 1233, 1237 (10th Cir.2004) (citations omitted). Where there is no direct evidence of retaliation, a retaliation claim is analyzed under a burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Annett, 371 F.3d at 1237. Once the plaintiff establishes a prima facie case, there is a presumption of retaliation and the burden shifts to the defendant to state a legitimate justification for the employment action. Annett, 371 F.3d at 1237. If the defendant offers such a reason for the action, the presumption is discarded and burden returns to the plaintiff to show with sufficient evidence that the justification is pretextual. Id. Mitchell’s only claim of protected activity is his participation in the investigation into Chesser’s allegations of sexual harassment. Zia Park does not, for purposes of its motion, dispute that Mitchell engaged in protected activity when he participated in this investigation. (Doc. 48 at 12.) Accordingly, to satisfy the prima facie case, Mitchell must show that Zia Park took at least one adverse employment action against him after the investigation that was causally connected to his participation. Mitchell alleges four actions, including increased surveillance, two write-ups, and a false allegation regarding his request for a manual, that, according to" }, { "docid": "14052773", "title": "", "text": "is an \"agency with authority to grant or seek relief” from unlawful employment practices, Plaintiff had 300 days “after the alleged unlawful employment practice occurred” to file a charge. 42 U.S.C. § 2000e-5(e)(l). In addition, \"a plaintiff may recover for incidents which occurred outside the statutory time limit if at least one instance of the al leged discriminatory practice occurred within the limitations period and the earlier acts are part of a 'continuing pattern of discrimination.’ ” Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1310 (10th Cir.1999) (quoting Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1415 (10th Cir.1993)). Plaintiff filed a charge with the New Mexico Department of Labor on October 6, 1997—252 days after his termination, but 322 days after his lost promotion. Once the district court granted summary judgment on the termination claims, the failure to promote claims were time barred because they were no longer part of a continuing pattern that included incidents within the limitations period. . Plaintiff's brief does not challenge the district court’s dismissal of the failure to promote claims or the discrimination claims. Accordingly, those matters are not before us. See Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 624 (10th Cir.1998). . Plaintiff may still proceed on his retaliation claim despite the fact that the district court dismissed his discrimination claims. ’’[A] plaintiff does not have to prove the validity of the grievance [he] was allegedly punished for lodging; 'opposition activity is protected when it is based on a mistaken good faith belief that Title VII has been violated.’ ” Robbins v. Jefferson County Sch. Dist. R-1, 186 F.3d 1253, 1258 (10th Cir.1999) (quoting Love v. RE/MAX of America, Inc., 738 F.2d 383, 385 (10th Cir.1984)). . Cases interpreting the ADA retaliation provisions are persuasive authority in Title VII retaliation cases because the statutory provisions are substantially similar. See Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir.1999). . Our sister circuits provide more examples of evidence that shows retaliatory motive. See Strother v. Southern Cal. Permanente Med. Group, 79 F.3d 859," }, { "docid": "23308526", "title": "", "text": "Enterprises, Inc. v. BEI Sensors & Systems Co., 231 F.3d 1284, 1287 (10th Cir.2000). Title VII makes it unlawful to retaliate against an employee because she has “opposed” any practice made unlawful by Title VII, or because she has “participated ... in an investigation, proceeding or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). Annett alleges that in retaliation for exercising her rights under Title VII, the University denied her (1) an assistant director EOO position, (2) the title of adjunct professor, and (3) PI status. Where, as here, there is no direct evidence of retaliation, we analyze a retaliation claim under the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Jeffries v. State of Kansas, 147 F.3d 1220, 1231 (10th Cir.1998) (applying the McDonnell Douglas framework to a claim of retaliation). To that end, Annett must first present a prima facie case of retaliation, which then shifts the burden to the University to produce a legitimate, nondiscriminatory justification for taking the disputed employment action. EEOC v. Flasher Co., Inc., 986 F.2d 1312, 1316 (10th Cir.1992). If the University satisfies this standard, the burden shifts back to Annett to provide evidence showing-that the University’s proffered reasons are a pretext for discrimination. Id. A To state a prima facie case of retaliation, Annett must show that: (1) she engaged in protected activity; (2) the University took an adverse employment action against her; and (3) there exists a causal connection between the protected activity and the adverse action. See Jeffries, 147 F.3d at 1231. It is undisputed that An-nett’s 1999 lawsuit against the University is a protected activity. On appeal, Annett argues that her statement to the EOO director regarding the University’s compliance with the conciliation agreement also constitutes a protected activity. In her affidavit, Annett states that she complained that the University failed to: (1) compile annual reports of its affirmative action plan; (2) maintain adequate records concerning gender and minority status in application flow data; and (3) take action to correct underutilization of minority and female" }, { "docid": "474628", "title": "", "text": "‘adverse employment actions’ because of their lack of consequence.”) (emphasis added). Although plaintiff has satisfied the first two prongs of a race discrimination case with respect to the promotion and raise denials, he is unable to satisfy the third element. He has failed to show that he was treated differently than similarly situ ated employees. Because plaintiff has failed to establish a prima facie case of race discrimination, the defendants’ motions are granted with respect to plaintiffs § 1981 and Title VII claims. B. Retaliation Title VII prohibits an employer from discriminating against an employee in retaliation for opposing unlawful employment practices. 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under Title VII, plaintiff must show that “(1) he engaged in protected opposition to statutorily prohibited discrimination; (2) he was subjected to an adverse employment action subsequent to or contemporaneous with his protected opposition; and (8) a causal connection exists between the employer’s adverse employment action and the employee’s protected activity.” Trujillo, 157 F.3d at 1215. “It is well settled that the burden of persuading the factfinder that the defendant intentionally discriminated remains at all times with the plaintiff.” Gunnell v. Utah Valley State College, 152 F.3d 1253, 1263 (10th Cir.1998). In Purrington v. University of Utah, 996 F.2d 1025, 1033 (10th Cir.1993), the Tenth Circuit made it clear that a plaintiff must prove that the defendant’s action was intentionally retaliatory. “A meritorious retaliation claim will stand even if the underlying discrimination claim fails.” Sanchez, 164 F.3d at 533. As with his discrimination claims, plaintiff may establish his prima facie case directly or indirectly under the McDonnell Douglas framework. Medlock, 164 F.3d at 549-50. If plaintiff is able to put forth a prima facie case of retaliation, it then becomes the defendants’ burden “to prove by a preponderance that it ‘would have made the same decision’ notwithstanding its retaliatory motive.” Id. (quoting Thomas, 111 F.3d at 1511); see also Purrington, 996 F.2d at 1033 (“If a prima facie case is established, the burden of production shifts, and the defendant must articulate a legitimate, nondiscriminatory reason for" }, { "docid": "3329222", "title": "", "text": "finding that there is no harm or no dispute of material fact as to the non existence of tangible harm.” (Id. at 393-94.) .We have applied the \"tangible employment action” definition to describe an \"adverse employment action” in at least six published and seven unpublished decisions: Annett v. Univ. of Kan., 371 F.3d 1233, 1237-39 (10th Cir.2004); Meiners v. Univ. of Kan., 359 F.3d 1222, 1230 (10th Cir.2004); Abuan v. Level 3 Communications, Inc., 353 F.3d 1158, 1174 (10th Cir.2003); Wells v. Colorado Dep't Of Transp., 325 F.3d 1205, 1213 (10th Cir.2003); Aquilino v. Univ. of Kan., 268 F.3d 930, 934 (10th Cir.2001); Sanchez, 164 F.3d at 532; Rennard v. Woodworker's Supply, Inc., 101 Fed.Appx. 296, 307 (10th Cir.2004); Hill v. Steven Motors, Inc., 97 Fed.Appx. 267, 278 (10th Cir.2004); McCrary v. Aurora Pub. Schs., 57 Fed.Appx. 362, 368 (10th Cir.2003); Hinsdale v. City of Liberal, Kan., 19 Fed.Appx. 749, 756, n. 5 (10th Cir.2001) (FLSA retaliation claim); Schmidt v. U.S. West Communications, 3 Fed.Appx. 766, 768 (10th Cir.2001); Carver v. U.S. Dep't of Interior, 185 F.3d 873 (10th Cir.1999) (table); Trujillo v. New Mexico Dep’t of Corrections, 182 F.3d 933 (10th Cir.1999) (table). . While it did not expressly say so, it appears the Supreme Court assumed an adverse employment action had to be tangible as well, stating: \"[e]very Federal Court of Appeals to have considered the question has found vicarious liability when a discriminatory act results in a tangible employment action.” Ellerth, 524 U.S. at 760-61, 118 S.Ct. 2257. Justice Thomas, writing in dissent, also thought that was the majority's view: In race discrimination cases, employer liability has turned on whether the plaintiff has alleged an adverse employment consequence, such as firing or demotion, or a hostile work environment. If a supervisor takes an adverse employment action because of race, causing the employee a tangible job detriment, the employer is vicariously liable for resulting damages. See ante, [118 S.Ct.] at 2268. Id. at 768, 118 S.Ct. 2257 (emphasis added). . Unless the Supreme Court or this Court, sitting en banc, has changed the law, the earliest panel decision" }, { "docid": "23308534", "title": "", "text": "to request PI status on one grant does not constitute a harm to future employment prospects that carries a “significant risk of humiliation [or] damage to reputation,” Berry, 74 F.3d at 986, tantamount to a false accusation of criminal charges or a negative letter of reference. Because we conclude that An-nett’s claims regarding her ability to obtain PI status do not constitute an adverse action, we are left' with the University’s decision not to hire Annett for the assistant director EOO position as the only adverse action before us. To establish the third element of her prima facie case, Annett must show a causal connection between the protected activity and the University’s decision not to hire her. She may establish the causal connection by proffering “evidence of circumstances that justify an in ference of retaliatory motive, such as protected conduct closely followed by adverse action.” Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1320 (10th Cir.1999). Again, we agree with the district court. Temporal proximity between Annett’s previous lawsuit, resulting in a verdict rendered in March 2000 with post-trial motions continuing into June 2000, and the University’s decision not to interview and hire Annett in May 2000 and June 2000 respectively, suffice to demonstrate causation for the purpose of establishing a prima facie case. See Ramirez v. Oklahoma Dep’t of Mental Health, 41 F.3d 584, 596 (10th Cir.1994) (concluding that a one and one-half month period between protected activity and adverse action may establish causation); see also Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.1999) (assuming that temporal proximity of two months and one week is sufficient to support a prima facie case of retaliation). Thus, Annett has established a prima facie case of retaliation with respect to the University’s decision not to hire her for the EOO position. B Because Annett has established a prima facie case of retaliation, the burden shifts to the University to proffer a nondiscriminatory reason for its decision. The University presented the following nondiscriminatory reasons before the district court: (1) Annett’s prior experience was limited to teaching and researching in" }, { "docid": "21982245", "title": "", "text": "the defendant to show a legitimate non-discriminatory or non-retaliatory reason for the adverse employment action. Kelley v. Goodyear Tire & Rubber Co., 220 F.3d 1174, 1177, 1179 (10th Cir.2000). If the defendant meets this burden, the burden shifts back to the plaintiff to demonstrate that the defendant’s proffered reason is pretext. Id. at 1177. I. Prima Facie Retaliatory Termination To establish a prima facie case of retaliation, Antonio must show that (1) she engaged in protected opposition to discrimination; (2) she suffered an adverse action that a reasonable employee would have found material; and (3) there is a causal nexus between her opposition and the employer’s adverse action. See Burlington N. & Santa Fe Ry. Co. v. White, -U.S.-,-, 126 S.Ct. 2405, 2415, 165 L.Ed.2d 345,-(2006); Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir.2006). Antonio challenges the district court’s ruling that her prima facie case failed with respect to causation. An employee “may establish the causal connection by proffering evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.” Annett v. Univ. of Kan., 371 F.3d 1233, 1239-40 (10th Cir.2004) (quotation omit ted). But “[u]nless there is very close temporal proximity between the protected activity and the retaliatory conduct, the plaintiff must offer additional evidence to establish causation.” O’Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir.2001). We agree with the district court that Antonio’s termination nine months after her complaint about Johnson’s remark is too temporally remote to support an inference of causation. See id. (observing that “a three-month period, standing alone, is insufficient to establish causation”). Consequently, we examine Antonio’s other evidence for a connection between her complaint and subsequent termination. As evidence that Antonio was terminated for complaining about Johnson’s remark, Antonio cites: (1) deposition testimony that members of the personnel committee knew that Antonio liked her job and had been trying to leave Zimbabwe to return to work; (2) Johnson’s deposition testimony that she would not rehire Antonio; (3) Sygma’s failure to employ progressive discipline instead of" }, { "docid": "16209015", "title": "", "text": "entitled to a judgment as a matter of law.” Fed.R.CivP. 56(c). “When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.” Steele v. Thiokol Corp., 241 F.3d 1248, 1252 (10th Cir.2001). A. Title VII discrimination claim Pursuant to Title VII, Ms. Miller alleged she was compensated worse than similarly situated male employees. We apply the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), framework for evaluating Title VII claims. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir.2002); Bullington v. United Air Lines, 186 F.3d 1301, 1315 (10th Cir.1999), overruled on other grounds sub nom. by Boyler v. Cordant Techs., Inc., 316 F.3d 1137, 1140 (10th Cir.2003). Under McDonnell Douglas, Ms. Miller is required to first establish & prima facie case of discrimination. In this context, we have stated “a female Title VII plaintiff establishes a pri-ma facie case of sex discrimination by showing that she occupies a job similar to that of higher paid males.” Sprague v. Thom Ams., Inc., 129 F.3d 1355, 1363 (10th Cir.1997) (citing Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1019 (11th Cir.1994)). The district court determined Ms. Miller failed to make out a prima facie ease. We agree. Ms. Miller contends there was a disparity in pay between what she received and how the other men in the PGA department were compensated. She also claims there was a disparity in compensation between what she was paid for doing public affairs duties and what was paid to the man who was hired for the new position. She has not established a prima facie case of gender discrimination with respect to either of these claims. First, Ms. Miller has not shown that she was paid less than any of the other men in the PGA department. As noted earlier in the opinion, she and her male colleagues in the PGA department were all classified in the same manner and none of the men in the department ever earned more than she did barring" } ]